1. Ostensible Owner.

An ostensible owner is that person who is not the real owner of the property but someone who has
all the indicia of ownership (without being the real owner). The word ‘ostensible’ literally
means ‘apparent’ or ‘seeming’.
He is the one who is apparently the unqualified and full owner and not a person who is a qualified
owner like a mortgagee or hirer of goods.
The provisions regarding transfer by ostensible owner are governed by section 41 of the Transfer of
Property Act, 1882.
Provisions Related to Transfer by Ostensible Owner
 Section 41 of the Transfer of Property Act, 1882 deals with concept of transfer by ostensible owner. It
states that -
a. Where with the consent (express or implied) of the persons interested in immovable
property, a person is the ostensible owner of such property, and transfers the same for
consideration, the transfer shall not be voidable on the ground that the transferor was not
authorized to make it.
b. Provided that the transferee, after taking reasonable care to ascertain that the transferor
had power to make the transfer, has acted in good faith.

 The provision is an exception to the general principle of transfer of property which is Nemo dat quod
non habet which means that no one can confer a higher right on property than what he himself
possesses.

 The transfer by the ostensible owner underlines the doctrine of holding out.
a. The doctrine of holding out protects the transferee from an ostensible owner. And comes
into play when the rights of two innocent parties come into conflict.

2. Doctrine of election.
Election simply means to choose. In legal terminology the Doctrine of Election is based upon principle
of equity and is an obligation imposed upon a party by the court to make a choice between two
inconsistent rights and that he should not enjoy both.
The doctrine is dealt with under Section 35 of The Transfer of Property Act, 1882 (TPA).
Essentials of the Doctrine Under Section 35
 The essentials can be enumerated as follows:
o The transferor professes to transfer property which is not his own.
o In the same transaction, benefit is conferred upon the owner of the property.
o The owner must either confirm the transfer or dissent from it.
o In case he dissents, he shall relinquish the benefit so conferred.
 The benefit so relinquished reverts back to the transferor or his representative where:
o The transfer is gratuitous and transferor before election dies, becomes incapable of making a fresh
transfer and
o The transfer is for consideration.
Then, the disappointed transferee has to be made good (compensated) the losses equal to the
amount of property attempted to be transferred.
 Example: The farm of Sultanpur is the property of C and worth Rs. 800. A, by an instrument of gift
professes to transfer it to B, giving by the same instrument for Rs. 1,000 to C. C elects to retain the
farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His representative
must out of the Rs. 1,000 pay Rs. 800 to B.
 3. What do you understand by 'dominant' and 'Servient Heritage'?

Section 4 of Indian Easement Act, 1882:

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.

 Explanation.--In the first and second clauses of this section, the expression "land" includes also things
permanently attached to the earth; the expression "beneficial enjoyment includes also possible
convenience, remote advantage, and even a mere amenity; and the expression "to do something"
includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the
dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting
thereon.
4. 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, or any other mere possibility of a like nature, cannot be
transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone
except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage.
(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred
by him.
(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be
transferred.
(e) A mere right to sue cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after
it has become payable.
(g) Stipends allowed to military, naval, air-force and civil pensioners of the government and political
pensions cannot be transferred.
(h) No transfer can be made (1) insofar 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 Indian Contract
Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee.
(i) Nothing in this section shall be deemed to authorize 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.

5. "Fraudulent Transfer".

Section 53 of the Transfer of Property Act

 Every transfer of immovable property made with intent to defeat or delay the creditors of the
transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-
section shall impair the rights of a transferee in good faith and for consideration.
o For example:– When ‘A’ transfers his property to ‘B’ without giving him his ownership of the
property with the intention to keep his assets out of reach of his creditor, such a transfer is called a
fraudulent transfer.
 A fraudulent transfer of property gives rise to a civil cause of action. The court may set aside a
fraudulent transfer at the request of the defrauded creditor.

Essentials
 The transferor carries out the conveyance of immovable property without receiving any
consideration.
 The purpose behind the transfer is to deceive a future transferee and hinder or postpone the rights
of creditors.
 This type of transfer can be void which means it is voidable at the discretion of the subsequent
transferee.

Exceptions
 Good Faith under Section 53(a):
o If the person receiving the property (transferee) acted in good faith and had no notice of the
fraudulent intent of the transferor, the transfer is not voidable.
o Good faith here implies an honest belief and lack of knowledge about any fraudulent intention on the
part of the transferor.
o If the transferee can prove that they acquired the property without any knowledge of the fraudulent
intent, the transfer may be considered valid.
 Insolvency of the Creditor under Section 53(b):
o Another exception is when the transferor was not rendered insolvent by the transfer, and the
transfer was made for adequate consideration.
o If the transferor remains solvent even after the transfer, and the transfer was made for a legitimate
purpose with adequate consideration, it may not be considered fraudulent even if it prejudiced the
creditor.
6. Which property can be validly transferred orally?
In India, oral transfers of movable property and some immovable property are valid under section 9
of the Transfer of Property Act (TPA) of 1882. However, written documents are required for certain
transfers of immovable property.
Movable property
 Oral transfers of movable property are generally valid.
 The Sale of Goods Act, 1930 does not require a written document for all sales of movable property.
Immovable property
 Oral transfers of immovable property worth less than Rs. 100 are valid.
 Oral transfers of immovable property worth more than Rs. 100 require a registered instrument.
  Other transfers of immovable property, such as sales, mortgages, leases, and gifts, generally require
written instruments.

7. Define usufructuary mortgage.

A usufructuary mortgage is a type of mortgage where the borrower gives the lender possession of
their property until the loan is paid off. The lender receives the property's income, such as rent or
profits, in exchange for holding the property until the loan is repaid. Features of a usufructuary
mortgage:
 Transfer of possession: The borrower gives the lender possession of the property.
 Income rights: The lender receives the property's income, such as rent or profits.
 Non-sale clause: The lender cannot sell the property until the loan is repaid.
 Ownership retained: The borrower retains ownership of the property.
 Fixed tenure: The mortgage is for a specific period agreed upon by both parties.
Rights of the mortgagor
 The mortgagor has the right to recover possession of the property.
 The mortgagor has the right to recover the mortgage deed.
 The mortgagor has the right to recover all documents relating to the mortgaged property.
Rights of the mortgagee
 The mortgagee receives the property's income, such as rent or profits.
 The mortgagee has the right to keep the property until the loan is repaid.

8. Distinction between Charge' and 'Mortgage'.

In the Transfer of Property Act (TPA), a mortgage is a transfer of property interest as security for a
loan, while a charge is a security for payment of money.
 Mortgage
Transfers an interest in the property. The borrower retains possession and usage rights, but the
lender has the right to take possession if the borrower defaults.
 Charge
Does not transfer property ownership. The charge holder has the right to claim payment from the
property, but does not own the property.
Examples:
 A mortgage is typically used for residential or commercial real estate loans.

 A charge can be used for loans related to specific assets, such as equipment or inventory.
9. What is mortgage by Conditional sale?
A mortgage by conditional sale is a type of mortgage agreement where the borrower transfers the
property title to the lender as security for a loan. The sale becomes absolute if the borrower defaults
on the loan, but if the loan is repaid, the transfer is void.
 According to Sub-section (c) of the Section 58 of TPA, the mortgagor ostensibly sells the mortgaged
property —
o on condition that on default of payment of the mortgage-money on a certain date the sale shall
become absolute, or
o on condition that on such payment being made the sale shall become void,
o Or, on condition that if such payment is made the buyer shall transfer the property to the seller.
 The proviso of the section states that no such transaction shall be deemed to be a mortgage, unless
the condition is embodied in the document which effects or purports to effect the sale.
10. Subrogation [Section 92]
Subrogation is the legal right to take on the rights of the original lender of a mortgage. This means
that the person who pays off the mortgage has the same rights as the lender over the property.
How does subrogation work?
 Someone who pays off a mortgage can claim subrogation.
 The person who claims subrogation is said to be "subrogated" to the rights of the original lender.
 The person who claims subrogation can recover the money they paid out from the person who took
out the mortgage.
 Subrogation is based on the principles of justice, equity, and good conscience.

When can subrogation be claimed?

 Subrogation is not automatic.
 The conditions under which subrogation can be claimed are defined in Section 92 of the TPA.
 The mortgagor must agree in a registered instrument that the person who paid off the mortgage can
be subrogated.
11. Holding over.
Holding over is a property law doctrine that occurs when a lessee continues to occupy a property
after their lease has ended. The doctrine is described in Section 116 of the TPA of 1882.
What happens when a lessee holds over?
 The lease is automatically renewed, either month to month or year to year
 The renewal occurs by default, unless there's a contrary agreement between the lessor and lessee
 The lessor or their legal representative must accept rent or otherwise consent to the lessee's
continued possession

How is holding over different from tenant at sufferance?

 A lessee is considered a tenant by holding over if they have the lessor's consent to remain in
possession
 A lessee is considered a tenant at sufferance if they remain in possession without the lessor's consent
Example of holding over
 If A rents a house to B for five years, and B continues to occupy the house after the five years expire,
the lease is renewed from month to month.
12. Define exchange.
As per TPA Act 1882 under section 118, when two persons mutually transfer the ownership of one
thing for the ownership of another, neither thing or both things being money only, the transaction is
called an "exchange". The transaction can involve more than one thing, but neither thing can be only
money. Explanation:
 An exchange is a contract.
 The transaction can involve movable or immovable property.
 Money can be involved, but the transaction cannot be solely a transfer of money for a thing.
 If one property is worth more than the other, additional money may be paid to make the exchange
equal.
 Unilateral transfers, such as a husband transferring property to his wife, are not exchanges.
13. Difference between License and Lease.

Lease: Section 105 of the Transfer of Property Act, 1882 (TPA) defines lease. It states that a lease of
immoveable property is a transfer of a right to enjoy such property, made for a certain time, express
or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of
crops, service or any other thing of value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms.

Licence: According to Section 52 of the Indian Easements Act, 1882 where one person grants to one
or more than one person a right to do in or upon a certain immovable property something which
would, in the absence of such right, be unlawful, and such right does not amount to an easement or
an interest in the property, the right thus created is called a license.
Lease Licence
It is a privilege to do something on the
It is the transfer of a right to enjoy the
premises which would otherwise be
premises.
unlawful.
It is a permission to occupy the property
It is a transfer of interest in the property.
and no transfer of interest.
If during the continuance of the lease,
It has no interest in the land and therefore,
any accretion is made, such accretion is
he acquires no right by accretion.
comprised in the lease.
It is transferable and heritable. It is non-transferable and non-heritable.
It can be terminated by forfeiture. There can be no termination by forfeiture.
It can be terminated by the ways given It is usually revocable at the pleasure of the
under Section 111 of the TPA. grantor.
Interest of the lessee is not defeated by a A subsequent transfer of the
subsequent transfer of the property. property terminates a licence immediately.
It is usually terminated by death of either
Death of either party does not affect a lease.
party.
Right to protect possession of the property No right to defend the possession of the
exists. property.

14. What is "Actionable Claim"?

An actionable claim under the section 130 of Transfer of Property Act (TPA) is a claim to a debt or
beneficial interest in movable property that can be enforced in a court of law.
What is an actionable claim?
 An actionable claim is a claim to a debt that is not secured by a mortgage, pledge, or hypothecation
 It can also be a claim to a beneficial interest in movable property that the claimant does not possess
 The debt or beneficial interest can be existent, accruing, conditional, or contingent

Examples of actionable claims book debts, rental arrears, and deposit receipts.
Transferring actionable claims
 The Transfer of Property Act allows the transfer of actionable claims, but the transfer must be in
writing and signed
 The transferee assumes the liabilities and equities of the transferor

15. What is Condition Precedent, Condition Subsequent and Condition

Collateral?
A condition precedent in the Transfer of Property Act (TPA) of 1882 under section 25 and 26, is a
condition that must be met before a property can be transferred.
What are the conditions for a condition precedent?
 The condition must be lawful and not prohibited by law
 The condition must not be fraudulent
 The condition must not cause injury to another person or their property
 The condition must not be immoral or against public policy
 The condition must not be impossible to fulfill
How is a condition precedent fulfilled?
 As per section 26, A condition precedent is considered fulfilled if there is substantial compliance with
the condition
 For example, if A transfers property to B on the condition that B marries with the consent of C, D, and
E, but only gets the consent of C and D, the condition is considered fulfilled

A condition subsequent is a condition that must be met after a property transfer has taken place. It is
described in Section 29 of the Transfer of Property Act, 1882.
How it works
 The condition must be met strictly.
 The transfer will only happen once the condition is met.
 If the condition is not met, the transfer will not happen and the property will go back to the original
owner.
Examples
 If A transfers property to B on the condition that B gets at least 75% in their university exams, the
transfer will only happen if B meets the condition.
 If A transfers property to B on the condition that B marries C, the transfer will only happen if B
marries C.

A collateral condition in the Transfer of Property Act (TPA) is a condition that must be fulfilled at the
same time as the transfer of property. If the condition is not met, the transfer is invalid.
Example
 If A transfers property to B on the condition that B maintains A's wife for 10 years, B must meet this
condition for the transfer to be valid.
 If B does not meet the condition, the transfer is invalid and the property does not go to B.
 16. Define 'Immovable Property'.
The Transfer of Property Act (TPA) section 3 defines immovable property as land, buildings, and
things attached to the earth. It also includes benefits that arise from land, such as rights to ways,
lights, ferries, and fisheries.
What is included in immovable property?
 Land: The surface of the earth, including any structures or buildings on it
 Buildings: Any permanent structure, such as a house
 Things attached to the earth: Objects that are permanently attached to the earth, such as fixtures
like wiring, lighting, and ceiling fans
 Benefits from land: Rights to ways, lights, ferries, fisheries, or any other benefit that arises from land
What is not included in immovable property? standing timber, growing crops, and grass.
Why is immovable property important?
 Immovable property is permanent and fixed, so it can't be considered an "excisable good"
 Fixtures that are attached to immovable property, like wiring, lighting, and ceiling fans, go with the
property when it's transferred

17. Distinguish between vested and contingent interest.

The main difference between vested and contingent interest in the Transfer of Property Act (TPA) is
that vested interest is certain, while contingent interest is uncertain.
Vested interest, Section 19
 The interest is immediate, even if the beneficiary can't enjoy it yet
 The interest is not affected by the death of the beneficiary
 The interest can be transferred and inherited
 The interest is created when a transfer deed is registered

Contingent interest, Section 21

 The interest is conditional and may not be realized
 The interest may lapse if the beneficiary dies before the condition is met
 The interest may have limitations on inheritance rights
 The interest is created when a transfer of property is made and a condition is specified
Examples
 A gift to a person who can only use it after turning 21
 Property left to an heir who graduates from college by a certain age
 18. Distinguish between 'Sale' and 'Contract of sale'.
Under section 54 of the Transfer of Property Act (TPA) of 1882, a sale is the immediate transfer of
ownership of a property, while a contract of sale is an agreement to transfer ownership in the future.
Explanation
 Sale
A sale is a completed transaction where the seller transfers ownership of the property to the
buyer. The sale must be registered and evidenced by a sale deed.
 Contract of sale
A contract of sale is an agreement between the seller and buyer to transfer ownership in the
future. The contract of sale does not immediately transfer ownership.
Rights and obligations
 Sale
The seller transfers ownership of the property and the buyer receives the legal title.
 Contract of sale
The seller retains ownership of the property until the terms of the contract are met. The buyer has
the right to sue the seller if the seller doesn't fulfill their obligations.
Tax implications
 Sale: Sales may be subject to taxes like Goods and Services Tax (GST).
 Contract of sale: Tax implications depend on the terms of the contract and when ownership is
transferred.
Legal requirements
 Sale
The sale must be between living people who are competent to enter into a contract.
 Contract of sale
The contract of sale must meet certain conditions to be legally enforceable.

19. Marshaling by subsequent purchaser.

Marshalling by a subsequent purchaser is a right of a buyer to have a mortgage debt satisfied from
the properties not sold to them. This right is provided under Section 56 of the Transfer of Property
Act, 1882.
When does marshalling by a subsequent purchaser apply?
 When the owner of multiple properties mortgages them to one person
 When the owner sells one or more of the properties to another person
What are the conditions for marshalling by a subsequent purchaser?
 The buyer is entitled to marshalling unless there is a contract to the contrary
 The rights of the mortgagee and other interested parties must not be prejudiced
What is the basis for marshalling by a subsequent purchaser?
 The principle of equity that the buyer's interest in the property must be protected

20. Define Notice. Essentials of Constructive notice.

In the Transfer of Property Act (TPA) of 1882 section 3, notice is a formal communication that informs
a party of a fact or legal proceeding. Constructive notice is a type of notice that assumes a person has
knowledge of a fact, even if they were not directly informed.
Definition of notice
 Notice is a formal communication that informs a party of a fact or legal proceeding.
 It can be verbal or written.
 It can affect the rights of parties involved in a property transaction.

 Types of Notice:
o Actual Notice: This occurs when a party is directly informed about a fact or event. Actual notice can
be verbal or written. Example: An example of "actual notice" under the Transfer of Property Act (TPA)
would be when a prospective buyer of a property is directly informed by the current owner, through
a verbal conversation or written communication, that there is an existing mortgage on the property,
meaning the buyer has been explicitly made aware of a prior claim on the land, constituting actual
notice.
 Constructive Notice: This is deemed to have occurred when a party should have known about a fact
or event through reasonable diligence, even if they were not directly informed. Example: If a
property is subject to a legal dispute and this information is readily available in the land registry, a
prospective buyer who does not check the registry but still purchases the property can be deemed to
have had constructive notice of the dispute.
 Implied Notice: This arises from the circumstances of a case, where a party is presumed to have
knowledge of a fact due to the nature of the transaction or relationship. Example: If someone is
openly living on a piece of land, a potential buyer attempting to purchase that land from a different
party would be considered to have "implied notice" of the occupant's claim to the property, even if
they weren't explicitly told about it, as their visible presence should prompt further investigation.

21. Doctrine of Acceleration

The doctrine of acceleration is a rule of construction in the Transfer of Property Act (TPA) of 1882. It
states that if a prior condition for a property transfer fails, the property will be transferred to
someone else. This is because the property was never vested in the original recipient.
How does it work?
 If a property is transferred to one person, but the same transaction also transfers the property to
another person if the first transfer fails, then the second transfer will take effect.
 For example, if A transfers a property to B, but B can't fulfill the conditions, the property will be
transferred to B's legal heirs.
Exceptions
 The doctrine of acceleration doesn't apply to gifts unless the first transfer fails in a specific way.
 If the parties to the transaction intend for the second transfer to only take effect if the first transfer
fails in a specific way, then the second transfer will only take effect if that happens.
Where to find it in the TPA
 The doctrine of acceleration is in Section 27 of the Transfer of Property Act.