Transfer of Property Act

Land laws
(Property law)
Study of law relating to the transfer of property in two
parts.
Part I relating to the general principles of transfer of
property
Part II relating to specific types of transactions like
sale, mortgage, lease, exchange, gift, charge and
actionable claims.
Easements Act regarding licenses.
Registration act and Stamp Act regarding alienations
covered under transfer of property act.
General study regarding rent control legislations.
Marks distribution and type of exam
• Total Marks 100
• Project marks 25
• Viva marks. 10
• Mid term exam. marks 20
• End term exam marks 40
• Attendance 05
• Close book exam only bare acts are
permitted to be referred to and bare acts
to be supplied by the Examination
Department.
Transfer of property
• Part I
• Historical background of transfer of property.
• What are the types of property.
• What types of property are covered under transfer of
property law.
• What is a transfer.
• Rules relating to the transfer of both movable and
immovable properties.
• Specific rules relating to the transfer of immovable
properties.
• Conditional transfer, condition precedent condition
subsequent,
• Part II
• Sale: ingredients needed to effect a sale.
• Rights and liabilities of a seller, buyer.
• Mortgage: ingredients needed to effect mortgage.
• Types of mortgages
• Rights and liabilities of mortgagor and mortgagee.
• Lease: ingredients of a lease concept of a sub lease.
• Rights and liabilities of lessor and lessee.
• Lease a special study with reference to rent control
legislation.
• Gift: ingredients of a gift and its role.
• Rights and liabilities of Donor and Donee.
• Exchange, actionable claims.
• Difference between the above concepts.
Easements Act
• Topics relating to license.
• Difference between lease and
license.
• Types of licenses
• Rights and liabilities of licensor
and licensee.
• How to terminate a license and
recover possession.
Registration and stamp Act
• What is meant by registration.
• Steps to be taken regarding
registration.
• Effects of non registration.
• Impact of section 49 of registration
act.
• Stamp Duty payable.
• Non payment of stamp duty and
effects.
Books to be referred to
• Transfer of property Act by Mulla
• Transfer of property act by C.V.Subba Rao.
• Lectures on transfer of property by justice
Shah.
• Law relating to properties by Meggaray.
• The transfer of property act AIR commentary.
• Law of mortgages by S.P.Sen Gupta.
• Law of easements by Kattiayar.
• Registration Act by Mulla.
• Stamp act by sanjeeva Rao.
Historical background of transfer of
property Act.
• Ancient India.
• During the period of Moguls.
• During the early period of British.
• During the Later period of British.
• In independent India.
Ancient India.
• The properties were of two types. Like stavara and
jangama.
• The modes of acquisition of properties were that of
from
• (i) learning,
• (ii) purchase,
• (iii) mortgage,
• (iv) by valour,
• (v) through wife,
• (vi) inheritance from ancestors,
• (vii) succession,
During the period of Moguls.
• The concept of property and the mode of acquisition
did not differ to a great extent.
• The mode of acquisition and disposal of the property

was akin to that of the pattern which existed in India
before the commencement of Mogul and pre-Mogul
rulers.
• Personal laws of Hindus and Mohammedans were

Applicable to them separately. There was not
common uniform law.
During the early period of British.
• English law and rules of equity governed British who came to
India as the laws of Hindus and Mohammedans were more a
personal law.
• In the absence of any statutory law necessarily they were
forced to depend on the English law of real properties.
• The courts were not certain as to what were the rules and
practices which were in force. The English rules were not clear
as they were having a divergence on account of the application
of principles of equity and common law practices.
• The first law commission was appointed to find out solution to
this piquant situation and to work of a uniform having
application to all.
• The first law commission went in detail and prepared a draft bill.
When the bill was introduced in the Parliament to enact a law
for India the same was referred to the select committee.
During the early period of British
• The bill was referred to the local Provincial Governments to
make their recommendations.
• The bill was redrafted by the Third Law Commission, based on
the recommendations and comments. The said work was done
under the Chairmanship of Sir Charles Turner, the chief justice
of Madras. The other members of the committee were such as
Sir Raymond west and Dr. Whitley Strokes. The major work
relating to the drafting of the Act was done by Whitely Strokes.
• The bill was prepared for almost seven times before a final draft
was prepared and tabled on the floor of the parliament.
• The bill was passed and came in to force from 17th February
1882.
• The preamble to the Act indicates that the Act was to amend
the law relating to the Transfer of property by the Act of the
parties.
During the Later period of British.
• 1885 Transfer of property amendment act to amend sec
1,4,6, and 69.
• 1895 Crown Grant Act savings of crown grant from the
application of T.P.Act.
• 1900 T.P.ACT to amend section 3, 6
• 1904 T.P.ACT to amend sec 1, 59, 69,
• 1908 Code of civil procedure.
• 1915 repealing act to amend 59, 69.
• 1917 T.P.(validating) ACT
• 1920 T.P.(amendment) ACT
• 1927 Repealing and amending Act.
• 1929 T.P.(amendment) ACT major amending act.
• Since 1930 till 1944 the act was amended during 1930, 1934,
1937, 1938, 1944.
In independent India.
• 1947 India Adaptation of Existing Indian laws
order.
• 1948. India independence adaptation of
central Acts and ordinances order.
• 1950. Adaptation of laws order 1950
• 1951. Part B States (laws) Act 1951.
• Since 1952 till 2002 the act were amended
several times during 1954,1956, 1959, 1963,
1964, 1970, 1976.
• 2002. major amendment to section 106, and
53A were done
Whether transfer of property act is
exhaustive?
 Characteristic feature of exhaustive code is that it covers all
matters specifically and it is not the province of the judge to fill
up the gaps to understand the true construction.
 Preamble
 Government grants not applicable
 Easements not applicable.
 Official receivers receiving property act does not apply.
 Partition in the family the act does not apply.
 Section 2 of the Act though repeals some of the Acts specified
in the schedule the said repeal is to the extent specified in the
schedule and for the rest of the extent those Acts continue to
have effect.
 Provisions of the Act which have not been specifically repealed
continues to apply. Provisions of any contract or constitution of
the property which are consistent with the provisions of
Transfer of Property Act and are allowed by any law for the time
being in force.
Whether transfer of property act is
exhaustive?
 Any right or liability arising out of legal relationship constituted
before coming in to force of the Act and they to continue even
after coming in to force of the Act.
 In pursuance to the court orders does not apply.
 Not applicable to transaction other than inter vivos
 Certain provisions are not applicable to Mohammedans section
2,gifts, etc/.
 Certain provisions were not applicable to Hindus till 1929.
 not applicable to certain parts of India.
 Depends on the definitions of contract Act .major part applies to
immovable properties and not in respect of Movable properties
 There fore the provisions of the Transfer of property Act is not
an exhaustive Act.
.
What is property.
• Property is a right and interest a person has in respect of
lands, chattels or any thing seen or not seen to the exclusion of
others.
• The property is a generic term for all that a person has domain
over. It has an extensive application. While strictly speaking it
would mean only the right a person has in relation to some
thing or a domain over it. It cannot be held to be confined to a
material object.
• Property signifies every species of property and it
comprehends all a man’s worldly possession.
• Some times the property may be owned by one person but yet
another may have a lease hold interest, an interest as a
mortgagee, an interest to collect rent, an interest to enjoy and
so on so forth.
• In the modern days in contrast to the earlier period the property
has a very wide meaning. It covers various types of things or
rights.
• The property should be given a liberal meaning. In fact it extends in respect
of various things which are found in a person’s day to day life
• Property can not remain in vacuum. Some one must be there to hold it.
• Illustrative but not exhaustive list of what a
property is.
 Building,
 Car
 Money,
 Lease hold rights
 Right over an art piece, song, drama, story, prepared by oneself,
 Trade mark and trade names,
 Debt
 Goods or objects or things of tangible nature
 Goods or objects or things of intangible nature
 Books,
 Pen, pencil, television,
 Animals
 Gun, bombs, ammunition,
 Insignia,
 passport,
 To collect usufructs from tree till debt is wiped off,
 Claim for breach of contract
 Assets of every description whether corporeal or not, tangible or not , deeds,
instruments evidencing title,
 Actionable claims
Types of Property
property
immovable Movable
Property
.
property
Corpereal Incorporeal
that is which affects senses That which cannot be seen or handled
movable property
movable property
Intangible.
tangible
Property
.
property
intellectual Non intellectual

Intellectual property
• Trade mark
• Copy right
• Patent
• Geographical indications
• Industrial designs.
• Lay outs
• Integrated circuits.
Non Intellectual property
• Real property like land, tenements,
hereditaments and all rights connected there to,
either of equitable or of legal consequences.
• Debts and action claims.
• Insurance policies.
• Money.
• Movable properties such as growing crops,
money, all corporeal property, standing timber,
corporeal properties, and property of any
description other than immovable property.
• Whether the definition of immovable
property is exhaustive?
• Immovable property
a
non comprehensive definition.
Do you agree?
Immovable property
• Transfer of property Act defines immovable
propety to the effect that;
• Immovable property does not include
1.standing timber,
2.growing crops or
3.grass.
What is a standing timber.
What is meant by growing crops.
What is meant by grass.
Whether the similar definition is adopted in
other laws.
Immovable property
T. P. Act 1882 sec Registration General clauses
3 Act.1908. Act.1897. Section 3(25)
Unless there is Immovable Immovable
any repugnancy property includes property shall
otherwise land, building, include land,
Immovable hereditary benefit to arise
property does not allowance, right out of land and
include of way, things attached to
1.standing timber, earth or
2.growing crops permanently
or fastened to any
thing attached to
3.grass. earth.
benefit to arise out of EARTH
• All benefits which arise out of earth would constitute
immovable property.
• The said benefits cannot be severed out of the
earth/land. For the purpose of sustenance of the
benefit they support of the land.
• The benefits may in the form of;
• collection of leaves from trees or climbers,
• Collecting fish from a pond,
• Right to enter the lands and cut the trees,
• Right to collect minerals from the earth/land
• NOTE: however the right to have benefit from any
standing timber, growing crops, and grass would not
amount to immovable property.
• These benefits which arise out of land are generally
referred to as Profits a prendre.
Profits a prendre.
• Profits a prendre is a right vested in one person
to enter on to the land of another person to
collect the profits which arises from the land of
the another.
• It is a right exercised one person on the land of
another to enjoy the profits which arise from the
land of another.
• The profits a prendre is different from
easements, as in case of an easement a
person will have a right to enjoy on the land of
another without taking any profits from the land.
attached to earth. and permanently fastened to
the things attached to the earth
• Rooted in earth as in the case of trees
• Embedded in the earth as in the case of buildings or
walls
• Attached so to what is so embedded for a permanent
beneficial enjoyment of that to which is attached.
Examples : doors, windows, shutters,
The test to be applied is to find out whether it is a
permanent one and that it is for the beneficial
enjoyment of the one to which it is attached. If it is of a
temporary nature though for the beneficial enjoyment,
then it would not come under this clause. Similarly
even if it is of a permanent nature but not for the
beneficial enjoyment of the one to which it is attached
then it would not come under the category of attached
to earth
standing timber,
• What is a timber,
• What is a fruit bearing tree,
• When could a fruit bearing tree be standing timber.
• Whether all types of trees become a immovable property.
• Note: whether a particular tree continues to be a standing
timber or not will depend on the intention of parties. If a party
wants to enjoy the benefits of a fruit bearing tree without cutting
them then it would not be a standing timber. On the other hand
if the parties intend to cut the said fruit bearing tree forth with
for the purposes of severing it from land then it would be a
standing timber to not to fall with in the category of Immovable
property under transfer of property act.
• Profits a pendre concept with reference to trees.
Test to be applied to find out
whether is it a standing timber.
• Standing timber must be a tree that it is in
a state of fit for the purposes and further a
that is meant to be converted in to timber
shortly that it can already be looked upon
as timber for all practical purposes even
though it is still standing. If not, it is still a
tree because unlike timber, it will continue
to draw sustenance from the soil. AIR 1958 SC
532,Shanta bai Vs State of Bombay.
Marshall Vs Green 33 L.T.404
• A contract was entered in to cut the trees and taken
away immediately to the ware house for being sold
in a public auction.
• Question: whether the tree is a movable property or
an immovable property?
• Test: whether the tree to have a continued nutrient
from the earth or not.
• Solution: the tree in this case to be cut and
removed immediately to ware house for the
purpose of sale. So the tree will not have nutrient
from the earth to grow. In view of the said fact the
tree will not be a immovable property, but on the
contrary would be a movable property.
Problem.1.
• Government of Karnataka entrusts the work to Ashok Kini for the formation
of Nandi corridor road from Bangalore to Mysore by widening the existing
road.
• Mr. Ashok kini notices that there are road side Mango and jackfruit trees to
the existing road.
• He engages the services of Jacob Paul and Co. of Calcutta, who have
expertise knowledge in uprooting trees and transporting them to such of his
place for disposal to facilitate kini to form the road.
• Jacob Paul and Co, insists to have a written registered agreement.
Therefore kini and Paul goes to the office of the sub registrar to have the
document registered as an agreement.
• Sub registrar insists to pay stamp duty as there is a transfer of immovable
property.
• What is the solution?
• The trees though are fruit bearing trees yet the intention of the parties is to
cut and remove it. It is not for the purposes of enjoying the usufructs of the
tree. When once the trees are cut and removed they do not draw any
sustinance from soil. Hence they are not immovable property with in the
meaning if Transfer of property act. Here the intention of the parties are to be
taken in to account.
Problem.2.
• Government of Karnataka entrusts the work to Ashok Kini for
taking care of cubbon park at Bangalore and maintain trees for
a period of 25 years. The park has 4000 trees of all types and
ages ranging from 1 to 35 years. The contract envisages that
kini could cut and remove the trees located in the park,
provided the said trees have a girth of 3 feet or the trees which
are of 30 years age.
• Sub registrar insists to pay stamp duty as there is a transfer of
immovable property.
• The trees though are not fruit bearing trees yet the intention of
the parties is not to cut and remove it immediately but to wait till
such time the trees either will have a girth of 3 feet or is aged
30 years. Till the trees are cut and removed they do draw any
sustenance from soil. Hence they are immovable property with
in the meaning of Transfer of property act. Here the intention of
the parties are to be taken in to account.
Problem 3
• Government of Karnataka entrusts the work to Ashok
Kini for taking care of cubbon park at Bangalore and
maintain it for a period of 25 years. The park has
mango and cashew trees. Kini entrusts the contract of
collecting the fruits for a period of 4 years to
Somashekara Alwa. Sub registrar insists to pay stamp
duty as there is a transfer of immovable property.
• The right of collecting fruits for a period of four years .
The trees to their existence draw sustenance from the
earth. Hence the right to collect fruits is a profit a
prendre and an immovable property with in the
meaning of Transfer of property act. Here the intention
of the parties are to be taken in to account.
Movable property
• Not specifically defined in transfer of
property Act.
• Includes standing timber, growing crop
and grass, fruit upon and juices in tree and
property of every other description except
immovable property. Sec.2(9) registration act.1908
• Movable property includes growing crops. Sec.2(9) civil
.procedure code. 1908
Illustrative but not an exhaustive list of
immovable property
• A jalkar right
• Equity of redemption
• Right to ferry
• Right and interest of grove holder in grove
• Right to slag and earth before separation from soil
• Right to easement
• Advertisement hoarding fixed on substantial manner on the
land.
• Hereditary office under Hindu law
• Right to hold bazaar
• Right to collect rent
• Right to severe and collect tendu leaves
• Right to collect lac, resin and gum from trees
• Right to tap coconut and palm tree to collect toddy.
• Right to catch fish from pond.
• Collect coal from coal land.
Illustrative list of non immovable
property
• Copy right
• Royalty to the owner of the soil
• Right to turn worship
• Right to obtain specific performance.
• Temporary right to reap produce from a land.
• Collection of sludge from tank.
• Interest of partners in a partnership business.
• Right to recover mesne profit
• Right to receive prasadam in a temple.
• Right to receive compensation.
• Court decree.
Shri Tarakeshwara sio Thakur Jiu
Vs
Dar Das Dey and Co.
1979(3) SCC 106
• The definition of immovable property given in
section 3 para 1 of the transfer of property act
being in negative terms and not exhaustive, the
definition given in section 3(26)of the general
clauses Act will apply to the expression used in
the transfer of property Act as modified by the
definition of the definition in the first clause of
section 3. the expression immovable property
comprehends all that would be real property
according to the English law arising out of land.
• There fore it could be said that the
definition of immovable property is
not an exhaustive one
• Or in other words
• it could be said that the definition

of Immovable property as used in
Transfer of property Act is not a
a comprehensive definition.
What is profits a prendre?
• Profits a prendre is a right vested in one person
to enter on to the land of another person to
collect the profits which arises from the land of
the another.
• It is a right exercised one person on the land of
another to enjoy the profits which arise from the
land of another.
• The profits a prendre is different from
easements, as in case of an easement a
person will have a right to enjoy on the land of
another without taking any profits from the land.
profits a prendre
• The profits a prendre may be classified
with reference to the ownership and with
reference to the land
ownership to the land
Profits
appurtenant
One person Profit appendant.
claiming to
the exclusion One person
of others known as claiming in common
Several profit With others known as
Profit in common
Profits in gross
One person claiming to the exclusion
of others known as
Several profit
• In this category only one person would be granted the
right or authority to use the profits.
• The persons who have not been permitted can not
use.
• Illustration: “A” applies in a tender to do fishing at
Sankey tank for the year 2008-09. the bid offered by
him is accepted by the Corporation of city of
Bangalore and is granted a right to do fishing at
Sankey tank during the year 2008-2009. the said right
is in exclusion to the rights of others. So he could be
said as a person claiming to the exclusion of others
and it is known as several profits.
One person claiming in common with others known as
Profit in common
• Profit in common is also known as rights of
common.
• The profits could be enjoyed not in exclusion of
others but it could be enjoyed with all.
• In respect of land which is treated as a common
land or a land held for the benefit of community
at large this concept would arise and not in
respect of a land held in individual capacity or
as a property of an individual or authority.
• Example: pasturage land in a village to allow
the cattle of the village to graze.
profits a prendre to the land
• Profits appurtenant : this is a
profit where several or in common,
which by act of parties, actual or
presumed, is annexed to some nearby
dominant tenement and runs with it.
• Profit appendant: this is a profit
annexed to land by operation of law and
it is often similar to the common
pasturage created under a statute.
Profits in gross: this is a profit
enjoyed by the owner independently of
his ownership of the land.
How it could be created
• The profit a prendre may be created
By custom or usage: the local custom would be
responsible to create.
 By operation of law: the operation of law would
mean that when a statute specifically envisages
that a property is meant for the usage of certain
persons, or group of persons or category of
persons then it is known as a profit a prendre
by operation of law.
By conduct of parties. Express conduct of
parties the property is dedicated or permitted to
be used.
AIR 1956 s.c.17 Ananda Behra Vs State of Orissa .
• Chilka lake fishing rights and to sell the said fish were
given to a party, “Z”. With the said party “Z” Ananda Behra
entered in to a contract. As per the said contract Ananda
was to do the fishing and selling work. The State of Orissa
enacted a law to abolish any estate given to others and said
the compensation would be paid to the person interested.
Ananda filed a claim petition. The same was opposed by
contending that at the most Ananda was a licensee and not a
person having valid title as the document containing clause
is against the provisions of section 54. The compensation
should be given to “Z” predecessor of the ananda. The
property being an immovable property registration was a
must.
• Ananda contended that the said right is only a sale of goods.

The fishing right and carrying thereof is not a sale relating
to immovable property.
AIR 1956 s.c.17 Ananda Behra Vs State of Orissa .
• The supreme court did not agree with the said
view and on the other hand held that the sale
of a right to catch and carry away fish in
specified portions of the lake over a specified
future period amounts to a license while taking
away the said fish was a profits a prendre. This
is regarded in India as an immovable property.
• Sale of a profit a prendre is a immovable

property. If the worth of the said right is more
than Rupees one hundred then compulsorily it
requires registration.
Problem regarding benefits which arise
from land
• Government of Karnataka entrusts the work to Ashok
Kini for taking care of cubbon park at Bangalore and
maintain it for a period of 25 years. The park has lakes
and ponds. Kini entrusts the contract of catching fish
from the lakes and ponds for a period of 4 years to
Somashekara Alwa. Sub registrar insists to pay stamp
duty as there is a transfer of immovable property.
• The right of fishing for a period of four years . The
fishes to their existence draw sustenance from the
water and the pond. Hence they are a profit a prendre
and immovable property with in the meaning of
Transfer of property act. Here the intention of the
parties are to be taken in to account.
If a property is movable then the sale could be
oral but if it is in respect of a immovable property
worth more than Rs.100/ it can not be so.
• Kini orally entrusts a contract to catching fish from the lakes
and ponds for a period of 4 years to Somashekara Alwa, on a
consideration of rs.1000/. A dispute arises between parties and
Somashekara Alwa contends that Kini had sold the right in his
favour. Kini contends that it is not a sale but a license.
• The right of fishing for a period of four years. The fishes to their
existence draw sustenance from the water and the pond.
Hence they are a profit a prendre and immovable property with
in the meaning of Transfer of property act. Here the intention of
the parties are to be taken in to account.
• The consideration is more than rs.100/- it requires registration
under section 54 of T.P.Act. As the registration is not there and
also as the transaction is of a oral nature the incident of sale is
not there. Hence the position of Somashekara Alwa is not that
of a buyer of the rights of Kini but is only as a permissive
possession as against a consideration.
Fixtures
• A movable otherwise becomes immovable
property if it is a fixture. Then whether all types
of movables would become immovable property
or is there any special features is an important
aspect. We have different principles regarding
this aspect in Indian and English law. This
question would arise especially when a theatre
or a drama hall is leased, or a house is sold with
certain fixtures regarding which the party puts
forth that he has not been given possession in
entirety but only in part.
English law concept regarding fixtures
• Under English law we have two important maxims to
explain this aspect. They are 1.Quic Quid Plantatur
solo solo credit and 2.Quic Quid inaedificatur solo solo
credit.
• Quic Quid Plantatur solo solo credit means what ever
is planted in the earth becomes the part of the earth
and consequently who ever owns that piece of earth
also owns the thing planted.
• Quic Quid inaedificatur solo solo credit means what so
ever is built in to or embedded in to or attached to soil
becomes the part of the earth, and consequently
whosoever is the owner of that piece of land would
become the owner of the thing so attached.
• These maxims have two important exceptions such
as,
A. there shall be no contract to the contrary.
B. regarding the trade fixtures fixed by a tenant.
Quic Quid Plantatur solo solo credit
and exception 1
• Quic Quid Plantatur solo solo credit means what ever
is planted in the earth becomes the part of the earth
and consequently who ever owns that piece of earth
also owns the thing planted.
• Illustration A as a mortgagee in possession plants two
coconut trees and collects the fruits of those trees.
After the mortgage period whether A could collect the
fruits of those trees.
• If there is no contract between A and B on this aspect
then A cannot take fruits the said trees, and it
becomes the property of the mortgagor. If there is a
contract then subject to the said contract he could.
Quic Quid inaedificatur solo solo
credit and exception 1
• Quic Quid inaedificatur solo solo credit means what so ever is
built in to or embedded in to or attached to soil becomes the
part of the earth, and consequently whosoever is the owner of
that piece of land would become the owner of the thing so
attached.
• Illustration A as a mortgagee in possession constructs a zinc
sheet roofed pump house to install a pump to lift water from
sump to the overhead tank fitted at the building of B. After the
mortgage period whether A could take away the said zinc sheet
roofed pump house and the pump installed with a cement
bedding.
• If there is no contract between A and B on this aspect then A
cannot take away the said structure, and it becomes the
property of the mortgagor. If there is a contract
Exception 2
• Exception 2 to the said maxims applies where for the
purposes of the trade activities if any thing is planted
or fixed then the tenant while vacating the premises
could take away the things planted or embedded by
him.
• Example: Ramachandra Reddy the owner of the
building gives the same on lease to State Bank of
India for banking purposes. State Bank of India wants
to have a safe chest to keep the cash. Hence it gets a
chest embedded in the building. While vacating the
premises State Bank of India is free to take away the
said chest. Ramachandra Reddy cannot claim the said
chest as belonging to him on the principle that the
things have been embedded in to the earth or building
and hence he would be the owner of the chest.
Indian scenario
• Though the principles of English law applies in India
the same is with certain modifications and not in a
blind way. Generally the principle laid down in Quic
Quid Plantatur solo solo credit is not applicable. The
same applies with the condition
1. that the person while vacating the property he is
entitled to remove the attachment but should leave
the land in the same state in which it was prior to
attachment.
2. If he allows the same to remain and if the owner
enjoys the benefits thereof then the owner has to
compensate to the person who has left the said
fixtures.
Illustration.
• Amar inducts Baldwin, an advocate, to be the tenant of the a
hall. B puts up partition cabin in the said hall to have a proper
seating arrangements to the junior advocates and typist. While
vacating the premises of Amar, Baldwin is entitled to take the
partition which he had put up in the hall but he has to keep the
condition of the hall in the same condition in which it was given
to him by Amar.
• In the event if Baldwin allows them to remain and Amar makes

use of the same, then he has to compensate to Baldwin the
costs of the material so used.
• Here the tests to be applied is whether the said fixtures were

fixed with an intention to use the same as a part of the building
or otherwise is an important thing. If instead of a partition if a
photo is hung then it would not become an immovable property
and will have a characteristic feature of a movable property. In
that event the principle of these maxims would not apply.
Holland Vs Hodgson 1872(7) CP 328
• In this case the looms were attached to the earth and
floor of a mill.
• The question arose was whether it was an immovable
property or not
• Justice Black burn said that the general maxim of law
is that what is attached to land becomes the part of
the land, but it is difficult if not impossible to say with
precision what constitutes an annexation sufficient for
this purpose. It is a question of fact and depends on
circumstances of each case and mainly on two
circumstances indicating the intention and degree of
annexation of the object.
Instrument
• The transfer of property act defines the
instrument as to that of a non testamentary type
instruments
testamentary Non testamentary

Testamentary
and
non testamentary instrument
• Non testamentary instruments are such as sale deed,
mortgage deed, lease deed, gift deed, deed of exchange.
These are the deeds which will have effect forthwith after
execution. The effect of the document would not wait till the
death of the person who executes the document.
The person who transfers a right or interest in respect of a
property or a thing is known as the transferor while the person
to whom the transfer is made is the transferee.
• Will is a testamentary instrument.
It comes in to force only after the death of the person who
executes it. The person who executes the document is known
as the Testator while the person who derives the title would be
known as the legatee.
:Attestation:
• The transfer of property act defines as to attested and
not attestation.
• The meaning of the word attested has a specific
meaning it is in respect of an instrument.
• The concept of attestation in Indian law and English
law differs.
• The word attested was introduced in to the frame work
of t.p.act during 1929.
• There was a conflict of views as to what an attestation
would mean earlier to 1929. In order to resolve the
said dispute the Act was amended.
• In view of the amendment the view expressed by the
Courts in Shamu Patters case which held the field till
then became non applicable or not a good law. .
Attestation and attested
• The person who attests the document is an attester.
• Attestation is the process of attesting.
• In the process of attesting the attester attests execution.
• He speaks about subscribing the signature by the person who
has executed the document.
• what is a valid requirement of an attestation.
• Who could be an attester.
• Is there any legal qualification
• Some of the instruments require a compulsory attestation, while
few of them do not require compulsory attestation.
• The documents which require compulsory attestation are Will,
Mortgage deed, gift deed.
• When a document requires compulsory attestation the said
document can not be accepted to have been proved in a court
of law, unless at least one of the attesting witness is examined.
Persons Who cannot be an attester
• A person who is not sue generis.
• A person with unsound mind.
• A minor
• A corporate body that is in other words a
biological person and not a person created
under a legal fiction.
• A party to an instrument can not be an
attester. If a party becomes the attester the
attestation is good but the party will not get
any right.
What is needed for attestation.
• Animus attestandi. That is intention to
attest.
• Sign. Sigh would mean signature or any
mark of special identification.
• Acknowledgement of the signature of the
executant need not be express.
• There is no specific mode or format as to
how an attestation should be there.
Whether the following persons
could be attesters.
• Scribe. Yes if he attests the document in
dual capacity and not in the capacity of a
scribe.
• Sub registrar in his official capacity when
he signs he can not be an attesting
witness, but if he attests then the process
of registration is perfunctory and not the
process of attestation.
Should both the witnesses sign
simultaneously
• For the purposes of attestation in Indian law
what is needed is attestation by at least two
persons and it does not require that both the
witnesses should sign simultaneously.
• Earlier to 1929 the law was that both the
witnesses should sigh simultaneously, but now it
is not so.
• What is required is that the witnesses should
have got satisfied that the person who has
executed the document is the real executant
whose signature they are attesting.
Attestation in case of a purdashin
lady
• In case of a purdashin lady it is not
necessary that the attesting witness
should see the purdashin lady sign the
instrument. It is sufficient if the purdashin
lady sits behind the curtain and sings the
document. What is needed is that the
witness should have got satisfied that the
person who sits behind the curtain is the
person who is signing the instrument.
Illustration
• Ramu signs a will at Bangalore and takes it to
Chennai and asks his friend shrikrishna to
attests it, shrikrishna being satisfied with the
signature of Ramu sings the instrument. Then
Ramu takes it to Mumbai and asks Brijesh to
attest it. Brijesh being satisfied with the
signature of Ramu sings the instrument.
• There is a valid attestation as per Indian law
Problem
• Ramu executes a will in favour of Brijesh, sham, and
seetha..
• Brijesh and Muthaiah signs the instrument as an
attesting witness
• Question whether the instrument is valid.

• The instrument is valid as in favour of sham and
seetha but not against Brijesh.
• Reason the attesting witness can not be a beneficiary
and in the event if the attesting witness is a beneficiary
then the attestation is good while he will not as a
beneficiary.
Problem 2
• Ramu is supposed to have executed a gift deed in
favour of Brijesh, sham, and seetha..
• jayant and Muthaiah signs the instrument as
witnesses. They put the signature to the said
document, as they were asked to do so by Hanuman
the father in law of Brijesh. Ramu was a stranger to
the said persons.
• Question whether there is a valid attestation.
• Answer No. because the requirement is that the
persons who signed as attesting witness should have
an intention to attest and they knew that the person
who had signed the instrument was Ramu. In the
absence of it the mere act of putting signature at the
instance of Hanuman will not be sufficient.
Person is said to have notice of the fact.
• Notice is a concept based on the principle of

equity.
• When he actually knows that fact.
• He would have known it but has willfully
abstained to make inquiry and know it.
• Explanation No.1 regarding registered
document.
• Explanation No.2 deemed notice when a
portion or a share is acquired.
• Explanation No.3 if an agent acquires for and
on behalf of the principal.
• The definition of notice is applicable
generally in respect of all branches of law
and not confined to T.P.Act alone
Notice
Implied
Or
Express constructive
Or
actual
Willful Actual registration

abstinence possession
Notice
Gross
negligence To
agent
• Express notice or actual notice
• Express notice or actual notice is the notice where a
person acquires actual knowledge of a fact.
• To constitute an actual notice
it must be definite.
it must be given in the course of transaction or
negotiation between parties and not by strangers.
it may be in writing or orally.
NOTE:-
A vague rumor would not be an express notice.
Knowledge of information not connected with the
transaction is not a notice.
• CONSTRUCTIVE NOTICE
• Constructive notice is based on a concept of equity.
• The constructive notice is the equity which treats a person who

ought to have known a fact as if he actually does it.
• Constructive notice is the knowledge which the courts imputes

to a party upon a presumption, so strong that it cannot be
allowed to be rebutted.
• Illustration. B borrows money from C and deposits with C, by

way of equitable mortgage the sale deed by which he had
purchased the property from A. the sale deed has a recitation
that a part of purchase money had been retained by B to clear
the debts of A. B had not cleared the said debts. C while
making advance to B makes no enquiry what so ever as to
whether the debt had been cleared or not, or equally as to
whether the money had been paid to A, Here C had a
constructive Notice of A’s lien for unpaid purchase money
What is a willful abstention.
• Willful abstention is one where a party is bound to do
something but has not cared to that thing.
• This concept is recognized in section 199 of Law of Property
Act 1925 of England.
• With reference to the transferee a duty is based on him to make
necessary investigation to know the details of title.
• Illustration. B borrows money from C and deposits with C, by
way of equitable mortgage the sale deed by which he had
purchased the property from A. the sale deed has a recitation
that a part of purchase money had been retained by B to clear
the debts of A. B had not cleared the said debts. C while
making advance to B makes no enquiry what so ever as to
whether the debt had been cleared or not, or equally as to
whether the money had been paid to A, Here C had a
constructive Notice of A’s lien for unpaid purchase money and
mortgage is subject to A’s lien. Not making enquiry is a willful
abstention as the contents of the deed itself is clear.
• S has left his house and land to his sons by first wife and
appointed them as executors of his will. He left Rs.30000/ to his
sons of second wife, charged on the said property given to the
sons of the first wife. The sons of the first wife borrowed
Rs.52000/ from the bank and deposited title deeds of the house
and created an equitable mortgage, to secure loan. The will
was not among the documents of the title deeds produced to
the bank. Later the said sons of the first wife defaults in making
payment to the Bank. Bank brings an action to enforce the
mortgage and sell the property to realise the dues. The sons of
the second wife resists the said action.
• Whether there is a constructive notice and willful abstention?
• The bank ought to have made an enquiry to know as to how the
said sons of the first wife had got the title to the property then
they would have known about the existence of the will. If they
had known the existence of the will then they should have make
proper scrutiny to know the details as to who else had interest
in respect of the said property. The bank on knowing the fact
that the sons of second wife had interest could have taken
proper steps to safeguard their interest. In this case the bank
has not done that and has advanced the loan blindly. So they
have the constructive notice of the claims of the sons of the
second wife.
Problem
• A buys two properties such as B and C, from X, and leaves a
part of purchase money unpaid and sells the property B to Z. A
informs that when he purchased property B and C he had not
paid to X a portion of the purchase money. Then Z purchases it
subject to the charge on property C, towards the amount
payable to X. During the same year A sells the property C to Z.
at that time A did not inform Z about the unpaid money or the
charge in respect of property C to be payable to X.
• Question whether the information received by Z while buying

the property B would amount to a constructive Notice, and
whether there is any willful abstention of the part of Z.
• Answer: the information received by Z is not in the course of the

transaction of Z with A while having the transaction in
connection with property C. hence there can not be a
constructive notice.
Problem 2
• Amaresh Gupta borrows money to a tune of 7,00,000 from
Bank of Baroda on an equitable mortgage by giving his
shopping complex at Jayanagar as a security. The said
shopping complex contains 10 shops. Out of the said 10 shops
Amaresh Gupta sells 2 shops to Siddesh Gupta for 3,00,000
each. At the time of sale of those two shops Siddesh Gupta
asks Amaresh Gupta to show the original deeds in respect of
the shopping complex. Amaresh Gupta promises Siddesh
Gupta that he would produce it later as he had misplaced it. So
Siddesh Gupta scrutinises the certified copies and purchases
the shops. Subsequently Amaresh Gupta fails to produce the
originals. Siddesh Gupta did not continue his efforts to make
any further enquiry
• Question whether conduct of Siddesh Gupta is hit by the
principles of Constructive Notice.
• Answer: the conduct of Siddesh Gupta is effected by the
principle of constructive notice.
Gross negligence
• Negligence is such an act where in a party fails
to take such care as a reasonable person would
take while performing his part of the duty.
• Mere negligence or want of caution is not
sufficient to constitute a constructive notice.
• The concept of gross negligence is once again
invented by the courts of equity to safe guard the
interest of the parties.
• What is a gross negligence depends on the facts
of the case.
Lloyds Bank Vs Guzdar
1926(56) Cal 868
• A deposited the title deeds of this property with Bank “N” to
secure an over draft. After some time the Bank asked A to clear
the outstanding dues.
• A asked the manager of the Bank to give the documents to him
so that he could show them to other prospective buyers and
and raise the funds.
• The usual practice of the Bank was to as the Buyer to go over
to it and verify the documents. Bank did not follow this
procedure in case of A and obliged to give the original
documents.
• A approached Lloyds bank and made a false representation
that the property is free from all encumbrances.
• Lloyds bank trusted A and advanced the money.
• Question whether there is a case made out for gross
negligence.
• Answer yes. The act of Bank N is in gross negligence, hence it
has no priority over the claim of Lloyds Bank.
Tilakdhari lal Vs K.Lal
AIR 1921 PC 112
• A wanted to buy a property from Z.
• The title in respect of the property was the question. There
were certain documents available at the office of the sub-
registrar. A did not go through the said documents. He
purchased the properties from Z. later it was found that the
properties were not of Z but of X.
• Question is whether the action of A amounted to an act of gross
negligence.
• Answer: yes. A was duty bound to go through the said
document and get confirmed about the title. A did not do so.
Hence A was gross negligent in his act of scrutiny of the
documents.
• Note In view of this judgment T.P.Act was amended to impose
an obligation to look such of the documents which require
compulsory registration and not the documents which require
only an optional registration.
Whether the verification of
Municipal records constitute a
duty?
• regarding the verification of Municipal records
Allahabad High court had held that it is a duty to
scrutinize them by the buyer and failing to do so
would amount to a gross negligence, but the
supreme court has not accepted this view on
the principle that the Municipal records do not
constitute a title.
Ahmedabad Municipality VS Haji Abdulla
AIR 1971 SC 1201.
REGISTRATION AS A NOTICE
• Some of the documents which require
compulsory registration should be looked in to. If
they are not looked in to then it would be a
• If the documents which do not require
compulsory registration is not looked in to then it
would not be a constructive notice.
• Explanation 1 was added in 1929 in view of the
ruling of Tilakdhari lal case.
• Compulsory registratable document is a deemed
notice.
Whether the notice to an agent is a
• any act of an agent would be for and on
behalf of a principal, unless it is
specifically restricted.
• If a notice is given to the agent then it
would amount to a notice to the principal.
• In such an event it would be a constructive
notice.
Actual possession
• When a person other than the transferor is
in possession, the intended transferee
shall make enquiry as to the person who is
in possession of the property. If no enquiry
is made then the transferee is deemed to
have notice regarding the transaction
between the transferor and the person in
possession of the property.
.
• The transfer is a generic term to cover different
types
Transfer Transfer
Voluntary Involuntary
Intervivos
Testamentary
Note
1.Transfer by operation of law, through a decree of court, grant,
Are involuntary transfers.
2.Transfer through a will is a testamentary transfer.
3.Partition in a family is not a transfer
Types of transfer:
• Transfers could be classified as
Transfer Conditional transfer .
conditional unconditional
absolute
partial
Parting or alienation
enjoyment
Types of conditional transfer:
.
Conditional Transfers could be classified as.
Conditional transfer . Conditional transfer .
partial
absolute
precedent
Parting
Or enjoyment subsiquent
alienation
Vested Contingent
Money. interest interest
time
The transfer of property means an act by which.
1) a living person conveys property, that is in
present, or in future
2) to another or more living persons OR
3) To himself, OR
4) To himself and one or more living persons
Note: living person includes company, association, or body of
individuals, incorporated or not
Movable Immovable
Whether the transfers under
T.P.Act is exhaustive or not.
 In the beginning the framers of law and the courts were of a view that the transfer
as contemplated in T.P.Act, is exhaustive and would cover all types of transfers.
 The said view is not accepted now.
 The provisions of T.P.Act are not applicable in respect of:
1. pledge of movables,
2. Relinquishment
3. Family arrangement
4. Through will
5. Surrender
6. Charge
7. Easement
8. Future transfer or Property not in existence
9. Non inter vivo
10. Court decree
11. In favour of official liquidator
12. Grants by government
13. Auction sale
14. Non living entities like idol,
Hence the transfer under transfer of property Act is not a transfer.
transfers under
T.P.Act is not exhaustive
 pledge of movables:- pledge is defined to be a bailment of
personal property as a security for some debt or engagement.
It is governed generally under Indian contract Act, Money
lenders Act, Pawn brokers Act etc.
 Relinquishment:- an act of abandoning or giving over
 Family arrangement: an arrangement made in a family

regarding the existing rights of members of the family. Hence
it can not be said that there would be a transfer.
 Surrender:- in case of surrender both the persons will have

right and one would not like to exercise and would give up in
favour of another, where by the right of the other person
which limited to some extent gets enlarged to a greater
extent.
transfers under
T.P.Act is not exhaustive
 Through will:- will is a document which comes
after the demise of the person.
 Charge:- is not a transfer of property for in
charge no right in rem is transferred, but only
a personal obligation is created.
 Easement:- easement is a restriction one
enjoyment of one’s property for the utilization
of another of his property. It is governed under
the provisions of Easements Act.
 Future transfer or Property not in existence:- a
property which is not there in existence.
transfers under T.P.Act is not exhaustive
 Non inter vivo: not between two persons
 Court decree: an order or a decree directing that a property shall be given to

another person.
 In favour of official liquidator:- under the provisions of Insolvency Act, or under a

Companies Act when there is an insolvency or winding up proceedings.
 Grants by government:- any grant made by the Government in favour of a person

or body of persons then it would not constitute a transfer under transfer of property
Act.
 Auction sale: an auction conducted by the court the same would not amount to a
transfer, as it would more by operation of law.
 Non living entities like idol,:- an idol though is a juristic person capable of holding
property, but it is not a living person. The living person is specifically explained in
the proviso to the section. This creates a legal fiction in respect of a living person
to cover a corporation or an association, therefore the said legal fiction can not be
extended to an idol which as a juristic person can hold a property but can not have
a transfer in its favour.
Conveys Property, in present or in
future
• This would denote that the property must be there in
existence on the date of convey but the said
conveyance may be in future.
• If the property is not there in existence then the same
can not be transferred.
• To transfer a property one must have right at present,
but the transfer of the said right may occur in future.
• If the property itself is not there then there can not be
any transfer.
• In present or future qualifies the word convey and not
that of property, therefore the meaning shall be that
the property shall be there in existence and could be
conveyed in future, and not convey a property which is
not there and to be got in future.
future
• Illustration. 1
Amar is the owner of a house, at Trivendrum and
he executes a deed in favour of jyothirlingam on
15th November 2007. In the said document a
recital to the effect is there ‘that the house is
transferred from 1st of January 2008’. It is a
case of future convey. Transfer is permissible.
Because the property is already there in
existence.
future
• Illustration.2
Amar intends to buy a house, at Trivendrum
and he executes a deed in favour of
jyothirlingam on 15th November 2007. In the
said document a recital to the effect is there
‘that the house is transferred forth with. It is a
case not of future convey but a convey
without any property. Transfer is not
permissible. Because the property is not
there in existence.
Problem 1
• Xian e ping transfers certain properties to
Anthony Sylvester for life, then to Barrington for
life and thereafter to Cromwell.
• Question: Whether there is a conveyance, and

if so of what nature.
• Answer: there is a conveyance and it is in

present to Anthony Sylvester and in future to
Barrington and Cromwell. Barrington and
Cromwell get a vested interest.
Problem 2
• Xian e ping transfers certain properties to
Anthony Sylvester for life with reminder to
Barrington if he should have attained the age
of 21 at the time of Anthony Sylvester’s death.
• Question: Whether there is a conveyance and

if so of what nature.
• Answer: there is a conveyance and it is in

present to Anthony Sylvester and in future to
Barrington. Barrington gets a contingent
interest.
Problem 2
• Xian e ping transfers certain properties to Anthony
Sylvester for life with reminder to Barrington if he
should have attained the age of 21 at the time of
Anthony Sylvester’s death. On the date of transfer he
is not having any property and intends to have a
property in case if he could win a jackpot at Derby
Race.
• Question: Whether there is a conveyance and if so of

what nature.
• Answer: there is no conveyance either of present or

future to Anthony Sylvester and to Barrington as on
the date of the deed Xian e ping had no property at all.
What may be transferred
• Property of any kind may be transferred, except as otherwise
provided under;
1. Transfer of Property Act, or
2. Any other law for the time being in force.
 Section 6 (a) to (i) enumerates the list of properties which can
not be transferred.
 General policy of law is to promote free alienation and
circulation of property based on the principle ‘alienatio rei
praefertur juri accrescendi’ law favour alienation and not
accumulation.
 Transferability is a general rule while non-transferability is an
exception.
 Test to find out as to a property could be transferred or not is
to apply the test laid down in transfer of property act or any
other provision of law
 If there is no prohibition then the property could be
transferred.
Following properties as per T.P.Act can
not be transferred.
• A. spes scucessionis., chance of getting property in the event of
death of a relation, or other mere possibility of like nature.
• B. transfer of right to re-entry.
• C. transfer of easement.
• D. restricted interests.
• Dd. transfer of right to maintenance.
• E. transfer of a mere right to sue.
• F. transfer of a public office.
• G. transfer of pensions.
• H. (i) opposed to nature of interest affected thereby.
(ii) for un lawful object or consideration with in the meaning of
section 23 of contract Act.
(iii) persons legally disqualified to transfer.
 untransferable right of occupancy.
What can not be transferred under
other law
• Any restriction imposed in the other law relating to the
transfer.
• This has to be viewed and interpreted strictly and not
in a narrow sense.
• The restriction should not be readily inferred as the
right to transfer is an incidental right of ownership, and
it can not be curtailed or taken away otherwise than a
statute.
• The restrictions are noticeable in Hindu law with
reference to co-parcenary properties, mohammodean
law relating to wakfs, land reforms law relating to
transfer of agricultural land to a non agriculturist, etc.
spes scucessionis.
• A person can transfer what he has and not what he
would get.
• Spes scucessionis means a mere chance of getting a
property in near future.
• It is more in the form of a speculation and not a
certainty to have a thing.
• To effect a transfer the property shall be there, but in
case of a spes scucessionis the person will not have
either the property or the right in respect of it.
• It is more an expectation to get some thing in near
future.
• Example: Chance of a heir apparent succeeding to an
estate., Chance of relations obtaining a legacy,
spes scucessionis.
• Illustration:
Ramachandra rao, a senior scientist at ISRO, had properties such as a

land measuring 25 guntas at survey no.623 at Jeerige halli of Hassan
district as inherited from his father and had acquired properties on
account of self earning. Ramachandra rao had three sons and a
daughter.
The properties situated at jeerige halli would be an ancestral property and
regarding the same sons and daughters of Ramachandra rao had an
interest by birth.
the properties on account of self earning of Ramachandra rao is his
absolute property and the sons and daughter of him will not have any
right by birth and Ramachandra rao could dispose of the said
properties as he likes. Getting the said properties would depend on the
fact of death of Ramachandra rao and that too with out any will.
During the life time of Ramachandra rao the rights of sons and daughter
with reference to the self earnings is only a spes scucessionis and not
a vested right.
Hence sons and daughters of Ramachandra rao can not transfer it during
the life time of the father.
Problem.
• Amarnath a rich land lord of Willington of Tamilnadu had four sons
namely kutti, chippi, appu and teva.
• Amarnath acquired the properties on account of his efforts. He started
his life as a wood cutter and by shear efforts he be came rich.
• Amarnath wanted to dispose his properties during life time and writes
a Will to the effect each of his son should get equal share in the
properties but kutti being the eldest son should be paid a sum of
Rs.2,00,000 extra in order to facilitate him to perform the last rites to
Amarnath and his wife in the event of their death during the life time
of Kutti.
• After some time Amarnath bequeaths all his properties to Kanakamma
his wife and after her life time to the sons, as he felt that his sons may
squander the property and kanakamma may become a destitute.
• Question what is the nature of the properties with reference to the said
sons kutti, chippi, appu and teva.
• Answer:-The properties in respect of kutti, chippi, appu and teva is
only a chance to get and not with any vested right. So it is a spes
scuccessionis. Further kutti, chippi, appu and teva getting property
after the demise of the mother after the death of Amarnath is a chance
of a relation getting the property on the death if a kinsman.
Problem 2
• Amarnath a rich land lord of Willington of Tamilnadu had four sons
namely kutti, chippi, appu and teva.
• Amarnath acquired the properties on account of his efforts. He started
his life as a wood cutter and by shear efforts he be came rich.
• Amarnath wanted to dispose his properties during life time and writes
a Will to the effect each of his son should get equal share in the
properties but kutti being the eldest son should be paid a sum of
Rs.2,00,000 extra in order to facilitate him to perform the last rites to
Amarnath and his wife in the event of their death during the life time
of Kutti.
• After some time Amarnath bequeaths all his properties to Kanakamma
his wife and there after the death of Kanakamma to the sons equally.
During the life time of Amarnath, Kutti gifts a house situated walnut
street to Pitambari as she had shown love and affection to him. Some
years later kutti dies of heart attack. Pitambari puts forth a claim in
respect of the house situated at walnut street.
• Question what is the nature of right Pitambari got in respect of the
house.
• Answer:-The properties in respect of kutti, was only a chance to get
and not with any vested right. So it is a spes scuccessionis. The
transfer made by him in favour of Pitambari was without any right.
Hence the transfer is bad.
Chance of a Mohammedan
succeeding as a heir is only a spes
succession.
• In Mohammedan law there is no concept of acquiring
right by birth, and a person gets the property only after
the death. So the relatives can not have any property
during the life time of a person.
• “A” a Mohammedan has a wife and 4 sons 3 brothers,

mother, and 2 uncles. Each of them though they are
sharers and residuary they would not get any right till
the death of “A”. Hence the right of the said relatives
are a spes succession.
Any other possibility
of like nature cannot
be transferred.
• This is to be understood in the
background of the earlier instances
given in the clause and not
independent of it.
• This is to be looked in to in the

backdrop of the principle of eujusdem
generis.
Some of the illustration regarding Any other
possibility of like nature cannot be transferred.
• Chance of a person getting income in future as a
software engineer, which job he expects to get
after completion of his B.E.
• Chance of a person getting rent in future in
respect of a building which he would construct in
future.
• Mere chance of succession a will
• Expectancy of title being settled with the seller.
• Chance of getting an inalienable land in near
future
Mere right of re-entry for breach of
condition subsequent can not be
transferred
• The Mere right of re-entry for breach of condition subsequent
can not be transferred, except to the owner of the property.
• The right of re-entry could be sought for by the owner and not a
stranger.
• If a contract is entered in to with a person having no right to the
property for effecting the re-entry in future then such a right can
not be transferred.
• What is a right of re-entry?
• A as a owner of property enters in to a lease with B for a period
of five year. After the lapse of the said stipulated period A will
have a right to enter in to the property. The said right is known
as right of re-entry.
• The right of re-entry while could be transferred a mere right of
re-entry can not be transferred.
breach of condition subsequent
Important ingredients needed are that there shall be a condition
subsequent.
When the said breach occurs the person seeking re-entry shall be
a person having interest in the property and not a stranger.
Illustration:
A as a owner of property enters in to a lease with B for a period of
5 years. After five years he transfers the right to C to get
possession. Here the right is not a right of mere re-entry but a
right of re-entry.
A as a owner of property enters in to a lease with B for a period of
5 years. The lease contains a clause that B shall not cause any
damage to property and in case if he causes any damages then
A could re-enter the property. A intends to transfer such a right
to C. here the right is a mere right of re-entry and not a right of
re-entry.
Therefore the transfer in case of illustration 1 is good, while the
transfer in case of illustration 2 is bad.
Re Davis & Co exparte
• The goods were delivered under a hire purchase agreement.
• The agreement gave the bailer a right to enter the premises

where the goods were kept and take possession of the goods in
the event of default of payment of any installment.
• The bailer assigned the right under the agreement by way of

security to his creditors.
• Question what is the situation with reference to the position as

to mere right to transfer or the right to transfer.
• Answer: it comes under the category of mere right to transfer

and not the right to transfer. Therefore the court held that the
creditor could not enforce the right of re-entry. Besides this it is
only a personal license and it can not be assigned.
Transfer of Easement by a dominant owner apart
from the dominant heritage.
• Easement is a right enjoyed by a person in
respect of some one’s land for the better
enjoyment of his land.
• The easement goes along with the land. It
runs along with the land. It can not be
separated from the tenure. The provisions of
easement are governed under Indian
Easements Act. Even otherwise as the
easements can not be segregated from the
main holding the easement can not be
transferred independently.
Restricted interests can not be
transferred .
• What is a restricted interest?
An interest restricted in enjoyment to the
owner personally.
Life interest holder.
Person having a limited enjoyment.
Person having a pre-emptory right.
Service tenure.
Restricted interests
Illustration:- Achutan is the owner of a land namely
Rohini. He gives the said land to Balaam batti for
enjoyment, that is so long the said Balaam batti is
alive and there after to the children of Balaam batti.
The property is transferred to Balaam batti for life
time.
Balaam batti is a life interest holder while the children
of Balaam batti are the absolute owners. Balaam
batti can not transfer the property so given to him
for enjoyment during his life time.
Restricted interests
Person having a limited enjoyment.
• In respect of a property a person may have a limited
interest would mean that the said person/s instead
of having the right of ownership may have right to
take use fruits.
• Illustration:- Land Rohini is gifted to Lord Balaji by
karimalappa. The title in respect of the land vests
with Lord Balaji. The Archak of the temple of Balaji,
takes the fruits and flowers grown in the said land.
Just because Archak of the temple takes the fruits
and flowers he would not become an owner. While
the archak will have a right to receive any of the
fruits and flowers he can not sell the property which
stands in the name of Lord Balaji. The right of
archak is of a restricted nature. It is a restricted
interest.
Person having a right of pre emption.
• What is a pre emption?
• Right of Pre emption is a right in respect of an
immovable property. Under this right a person who is
the owner of a neighboring property could insist that
his neighbor shall give first preference to sell the
property to him in the event of the sale.
• This is a personal privilege.
• Among Mohammedans this rule is applied on the

principle of ‘justice, equity and good conscience’ while
among Hindus either by contract or under a Statute.
• A right of pre emption can not be transferred but a

decree for pre emption could be transferred.
Right of pre emption.
• Illustration.
• Amar owner of a land bearing survey No.2/1 situated
at Kembhavi village. Sham is his neighbor being the
owner of the land in S.No.2/2. Amar and sham had a
common ancestry. They had got the property under a
partition deed. The original deed contained a clause
that in the event either of them intends to sell the
property then they should give notice to the other and
in the event if the other declines to buy the property
then the person who intended to sell the property
could sell it to a third party. Here the right of one each
one of them against other is a right of pre emption.
Amar intends to sell the land. Then Sham can insist
Amar to sell the property to him. It is known as the
right of pre emption
Transfer of right to maintenance.
• The right to claim future maintenance is a
personal right.
What is a maintenance?
• When the maintenance could be paid.
• The payment of maintenance may be due to a
contract, decree, usage, will, statute.
• Right to claim maintenance in future is different
from that of a decree of maintenance.
• A mere right to claim future maintenance can
not be transferred while a decree of
maintenance could be transferred.
Transfer of a mere right to sue
• Right to sue is a personal right.
• The right to sue may arise on account of a
breach of contract or a tort.
• The right to sue is different from a right under a
decree.
• A right to sue while can not be transferred a
right under a decree can be transferred.
• Right to sue would be a right in a form of liquid
or a gas with out specific form, while the right
under a decree is a crystalline form
Mere right to sue is different from
an actionable claim.
• An actionable claim is a property while right to sue is
not a property.
• Amar owes certain amount to Bhasyam. The amount

payable by Amar to Bhasyam is a debt. The right of
Bhasyam to recover the amount from Amar is the right
of recovery of debt. Bhasyam while can transfer debt
recoverable by him from Amar to Chitra, he can not
transfer a mere right to recover the debt to chitra . The
debt while is an actionable claim the right to recover
debt is not an actionable claim.
A public office can not be transferred.
• Every one who is appointed to discharge a public duty
and receives a compensation of what so ever nature
in what so ever manner from the Crown or the State is
said to have held a public office.
• Examples:
Judge,.
District collector,
Police official,
Village account, etc etc.
• A public office can not be transferred a benefit which
has come from a public office could be transferred.
• A gratuity payable to a public servant could be
assigned.
Transfer of pensions
• Pension payable to a person for having rendered civil

or military service can not be transferred.
• Pension is a periodical payment of money by the
Government to a government official for his past
services.
• Grant of land in lieu of periodical pension could be
transferred but not the pension.
• So long the amount is not paid and is in the hands of
the Government it retains the character of a pension,
but once it is paid it will not par take the character of a
pension and could be attached or be transferred or
sold.
Oppose to the nature of interest.
• Res communes; the things belongs to no
body. Eg. Air, light, running water in a river,
sea water,.
• Res extra commercium; things dedicated
to the public or religious use. They can not
be bought or sold.
• Shebaitship.
• Transfer of a service inam not permitted.
For un lawful object or consideration with in
the meaning of section 23 of contract Act.
• Under section 23 of indian contract Act a
consideration or object is unlawful if it is
a. Forbidden by law.
b. Is of such nature that it defeats the provisions
of law
c. Fraudulent.
d. Involves or implies any injury to a person or
property of another person.
e. Where the courts regard as immoral.
f. Opposed to the public policy.
A person disqualified to be a
transferee.
• A person who is specially disqualified to be
a transferee like a judge, court official,
legal practitioner in a court auction or a
proceedings.
• minor as a transferee. EXAMPLE Lease
to a minor .
• A non agriculturist purchasing or holding
an agricultural property.
•
The transfer of property means an act by which.
1) a living person conveys property, that is in
present, or in future
2) to another or more living persons OR
3) To himself, OR
4) To himself and one or more living persons
Note: living person includes company, association, or body of
individuals, incorporated or not
Movable Immovable
. Transfer
Property,
persons
immovable movable
Transferee Transferor.
:Persons competent to transfer
or
competence to be a transferor:
• Living person, which term includes a company,
association, or body of individuals whether
incorporated or not.
• Every person competent to contract can transfer a
transferable property.
• Every competent person who is authorized to effect
the transfer of a transferable property which does not
belong to him.
• Section 11 of the contract act defines as the person
who has capacity to contract.
• Minor, person with unsound mind, can not transfer.
A person who cannot be a transferee.
0r
competence of a transferee.
• A non living person can not be a transferee.
• A person who is specially disqualified to be a
transferee like a judge, court official, legal
practitioner in a court auction or a proceedings.
• minor as a transferee. EXAMPLE Lease to a
minor .
• A non agriculturist purchasing or holding an
agricultural property.
•
Operation of transfer
• Unless a different intention appears either expressly
or impliedly transfer of property passes forthwith to
the transferee all the interest of the property which
the transferor had and capable of effecting
transfer.
• The said transfer includes all legal incidents there to.
• Legal incidents may be
A. with reference to a land.
B. With reference to machinery.
C. House or building.
D. Debt or any other actionable claims.
E. Money or other property yielding income, interest
Incidents of Transfer with reference to
• It is an inclusive description.
• With reference to land are such as easements, rents, profits
accruing after transfer.
• With reference to a building or a house easements, rent there
of after transfer, locks and keys, bars and doors, windows
and all other things for permanent use there with.
Immovable properties
land Buildings
Amaranth the owner of land bearing No.12/2 of siddalgatha
Village. On his land there were mango trees. Kasim a
fruit vendor had entered in to a registered agreement
with Amaranth to collect the fruits grown in those trees
for a period of 15 years.
• Amaranth had a financial crisis. To get over the same he
wanted to sell the land. He sold the land to Jagan. Sale
deed did not contain any clause with reference to the
said transaction between kasim and Amaranth.
• Question: whether Kasim could enforce the right against
Jagan, Alternatively whether Jagan is bound to the
agreement on the ground that the sale deed executed by
Amaranth had not specified any thing about the
agreement?
• Answer:-collecting mango from trees for a period of 15
years is a profit a prendre. The interest in respect of it
would pass on to the buyer in the absence of any
specified intention.
• Further query? If the agreement had not been registered then
what would be the situation.
• Illustration .
Amaranth the owner of land bearing No.12/2 of siddalgatha Village.
Kasim is the owner of the land bearing Sn.12/3. Amaranth had a right
of way to pass through the land of Kasim to go to his land.
• Kasim had a financial crisis. To get over the same he wanted to sell
the land. He sold the land to Jagan. Sale deed contained a clause that
the buyer could enjoy the land with out any interference of what so
ever nature.
• Question: whether jagan could restrain Amaranth, on the ground that
the sale deed executed by Kasim had not specified any thing about the
right of way?
• Answer:- The right of way over the land of Kasim was an
easementary right. The said right runs with the land. The position of
Kasim was that of a servient owner. The land of Kasim a servient
heritage. There was no specific intentention between the parties that is
Amarnath and Kasim on one hand and Jagan and Kasim on the other
hand that the sale of property should put an end to the easement.
Hence in the absence of any specific intention the right was there in
respect of the land of Kasim continues and jagan is to honour it. on
account of sale of land the right of easement as an incedent would
pass on to jagan.
How transfers are made or mode of
transfer.
• Oral transfers were rule of order in olden days and written
transfer was only an exception.
• Oral transfer is permitted in respect of all types of movable
properties.
• Oral transfer not permitted in respect of a immovable property
worth more than Rs.100/=
Transfer
Writing
oral
Where writing Where writing

is not a rule is a rule
Law prior to transfer of property Act
regarding transfer.
• The Hindu law did not require any writing for the
validity for a transfer of a property. What was needed
is a commitment. If the commitment is broken then the
person who was responsible to cause breach would
go to hell was the fear which played a dominant role.
Word of mouth had a high value. Of course
smrithikara like Narada says that if a transaction in
respect of an immovable property is there to have an
effect for a period of six months then the said
transaction should be in writing as the human memory
may fade gradually and there may be a scope for
dispute.
• The Mohammedan law also did not require any
specific documentation in writing. What was needed
was a mere declaration and acceptance.
What is writing
• The transfer of property Act has not
defined the word writing.
• The writing shall be construed as defined
in General clauses Act.Section 3(65) of the
said Act defines Writing to mean, “Writing
shall be construed as including reference
to printing, lithography, photography and
other mode of representing or reproducing
words in visible form.”
Where the writing is a rule.
• Under transfer of property Act.
Sale in respect of immovable property worth more
than Rs.100.
Part performance under section 53A.
Mortgage as contemplated under section 59
Exchange.
Lease from year to year or for a term exceeding one
year section 107.
Gift as contemplated under section 123
Transfer of actionable claims Section 130.
• Under registration Act.
Section 17 of the Indian Registration Act 1908.
Whether a document in writing
needs registration.
• The following transactions needs compulsory
registration besides being in writing.
sale of tangible immovable property of value of Rs.100
or up wards or reversion or other intangible things
Simple Mortgage
Lease of immovable properties from year to year or for a
term exceeding one year or reserving rent on annual
basis
Exchange of properties worth value Rs.100 or upwards
Gifts of immovable property.
Transfers expressly permitted by
the Act to be made with out writing
Sale in respect of immovable property worth less
than Rs.100.
Mortgage by deposit of title deed and mortgages
less than Rs.100/
Exchange in respect of immovable property
worth less than Rs.100/.
Lease for a term not exceeding one year section
107.
Gift of movables as contemplated under section
123
Transfer of actionable claims Section 130.
Types of transfer:
• Transfers could be classified as
Transfer Conditional transfer .
conditional unconditional
absolute
partial
Parting or alienation
enjoyment
.
partial
absolute
precedent
Parting
Or enjoyment subsequent
alienation
Vested Contingent
time
.Conditional Transfers or alienation could be
classified as.

Unborn child Perpetuity
Sec 13, Sec 14-17
Enjoyment Alenation
Sec 11 Sec 10 Insolvency
Sec 12 precedent
Parting enjoyment
Or subsequent
alienation
Money. time
.Condition restraining alienation.
• Transfer of property
• subject to a condition or limitation
• absolutely restraining
• the transferee or any other person claiming under him
• from parting with or disposing off his interest in the property
(alienation)
• the condition or the restrain is

void,
• Exception to the above said rule:-
• 1. In case of a lease where the condition is for the benefit
of the lessor or those claiming under him,
• 2. Married women, that is Provided that property may be
transferred to or for the benefit of a women (not being a Hindu,
Mohammedan, or Buddhist) so that she shall not have power
during her marriage to transfer or charge the same or her
beneficial interest there in.
Absolute Restraint
• condition or limitation absolutely restraining
alienation.
•the condition
or the restrain is
void,
Absolute restrain
• .
Time
Absolute restrain regarding price

Alienation.
Person.
Absolute Condition of restrain and
personal laws.
• Hindu law: the shastric Hindu law had
considered it that an condition of absolute
restraint was void. As per the then prevailing
rule absolute restraint either in a will or inter
vivos was considered as bad. Hindu law had
not accepted the wealth being accumulated in
the hands of few. It had encouraged distribution
of wealth rather than concentration or
accumulation.
• Mohammedan law had contained a similar bar.
:Illustration:
• Hayavadana rao gives a gift of his property to
Shamachari, with a condition that Shamachari
shall not sell the property.
• Shamachari sells the property to Jasmine
Marry.
• Question: what is the effect of the transaction
between Shamachari and Jasmine Marry with
reference to the property.
• Answer:-The restraint is of an absolute nature
in time. The condition imposed on Shamachari
is bad as hit by section 10 of T.P.Act.. Hence it it
void. The sale by Shamachari to Jasmine Marry
is valid.
• Appu, chippu and teva were the members of a joint
family. They had certain properties. They entered in to
an agreement to effect partition. The partition deed
contained a clause that the said persons in the future
eventuality of sale shall sell their respective share to
any one of them and not for others.
• Appu wanted to perform the marriage of his daughter.
He was in need of money. He sold his share to
Kubera.
• Chippu and teva contended that the sale in favour of
Kubera is bad.
• Question:- whether the sale in favour of Kubera is bad.
• Answer:-. The condition imposed in the deed of
partition itself is void in view of section 10 of t.p.act. So
the sale in favour of Kubera is not bad
• Appu, chippu and teva were the members of a joint
family being the sons of Amaranath Shetty. Janaki was
their sister. Amaranath Shetty gave certain properties
to his sons. In the said document he mentioned to the
effect that in he event if the said sons intend to sell the
properties given to each one of them, then they could
do so only in favour of Janaki.
• Appu wanted to perform the marriage of his daughter.
He was in need of money. He sold his share to
Kubera.
• Janaki contended that the sale in favour of Kubera is
bad.
• Question:- whether the sale in favour of Kubera is bad.
• Answer:-. The condition imposed in the deed of
partition itself is void in view of section 10 of t.p.act. So
the sale in favour of Kubera is not bad
• Appu, sold his properties to Kubera with a condition
that said kubera if intends to sell the property shall sell
it to him alone for Rs.3,00,000/ =
• Kubera sold the properties to Jasmine Marry for
Rs.15,00,000/= as the market value was to that
extent.
• Appu contended that the sale in favour of Jasmine
Marry is bad.
• Question. Whether the said transaction is bad?
• Answer:- the restriction imposed is on the basis of the
price. Though a seller could impose a condition that
the buyer in the event of sale in future has to give a
first option to him to buy back the property he can not
impose any restriction about the price to which it
should be sold. As it is a restriction based on the price
and as it is an absolute restriction it is hit by section 10
of the T.P.Act. So the transaction in favour of Jasmine
Mary is not Bad as the condition is void.
Saraju Balu Vs Jyothermayee.
1931(58) I.A.270. P.C
“A” gave a gift to “D”. It was an absolute gift.
However there was a condition that in case
of failure of descendents to “D” the property
shall go back to the heirs of “A”.
P.C.held:
The condition is bad and “D” could dispose
of the property as he desires.
Note: the gift is of an absolute nature so there can not be any
condition that the heirs of donor could get back .
• Appu, sold his properties to Kubera. He entered in to a
seperate agreement with with a condition that said
kubera if intends to sell the property he shall sell it to
him alone for Rs.3,00,000/ =
• Kubera sold the properties to Jasmine Marry for
Rs.15,00,000/= as the market value was to that
extent.
• Appu contended that the sale in favour of Jasmine
Marry is bad.
• Question. Whether the said transaction is bad?
• Answer:- the restriction imposed is on the basis of the
price in the separate agreement and in the deed of
transfer or sale. As it is not a restriction based on the
price in the document it is not hit by section 10 of the
T.P.Act. So the transaction in favour of Jasmine Mary
is Bad as the condition is not void.
.Conditional Transfers or alienation could be
classified as.

Unborn child Perpetuity
Sec 13 Sec 14-17
Alenation
Enjoyment Sec 10 Insolvency
Sec 11 Sec 12 precedent
Parting enjoyment
Or subsequent
alienation
Money. time
.
partial
absolute
precedent
Parting
Or enjoyment subsiquent
alienation
Vested Contingent
time
Restriction repugnant to interest created.
• an interest is created absolutely in favour of any one
person, that is a transferee.
• but the terms of transfer direct that such interest shall
be applied or enjoyed by him in a particular manner,
• he shall be entitled to receive and dispose of such
interest as if there were no such interest.
• Exception to the above Rule.
Where such a direction is made in respect of
one piece of immovable property
for the purpose of securing the beneficial
enjoyment of another piece of such property
then the said restriction would not apply.
Section 11
• When ever a property is transferred absolutely it means that it
is transferred with all its incidents.
• Enjoyment of the property is one of the incident.
• The restriction on enjoyment of property in contrast to the
restriction on alienation is dealt with in section 11.
• Any such restriction on enjoyment of the property if is imposed
then the said condition imposing restriction is bad.
• The transferee could use the property as if there was no such
restriction.
• Corresponding law in Indian succession Act is section 138.
• Section 11 would not be attracted unless there is an absolute
interest is created by the transferor in favour of the transferee.
• Section 11 applies in respect of both movable and immovable
properties. It does not make any distinction.
• Section 11 does not apply in respect of a lease, as in case of
lease only a limited interest of enjoyment is created in favour of
a transferee. In case of a lease the lessee is bound by all
express and implied covenants.
• Amarnath sells a property to Kubera. In the sale deed
he imposes a condition that Kubera shall use the
property only for the purposes of construction of a
house.
• Kubera constructs a cinema theatre.
• Amarnath files a case against Kubera contending that
the action of the later is bad.
• Kubera resists the suit.
• Question: whether the action of Amarnath is proper
and Kubera is bound by the covenant.
• Answer: the sale is a transaction where in there would
be a transfer of absolute interest. The buyer can use
the property as he likes. The seller can not impose
any restriction on the buyer as to how the later has to
use the property. So the condition is bad.
• Amarnath sells a property to Kubera. The said
property is a house. In the said house a person by
name Laxman is in occupation as a tenant. In the sale
deed Amarnath imposes a condition that Kubera shall
utilize the rental income for the purpose a charity run
by Narayana guru seva trust.
• Kubera declines to do so.
• Narayana guru seva trust files a case against Kubera
contending that they should be paid money as per the
terms of the sale deed.
• Kubera resists the suit.
• Question: whether the condition binds Kubera.
• Answer: the sale is a transaction where in there would
be a transfer of absolute interest. The buyer can not
be asked to enjoy the income as per the desire of the
seller. So the condition is bad.
• Amarnath Gifts a property to Kubera, his son.
The said property is a house. In the said house
other dependents were living. In the gift deed
Amarnath imposes a condition that Kubera
shall pay maintenance to the dependents.
• Kubera contends that he need not pay any
maintenance to the said dependents.
• Answer: yes it binds the son. The said condition
is not in any way repugnant to the interest
created by the instrument of gift deed. It is not
hit by the provisions of section 11 of the transfer
of property act. So the condition is not bad.
• BASED ON THE PRINCIPLE LAID DOWN IN Panna Lal Hazara Vs Phulmony Hazara. AIR
1987 CAL 368
• Amarnath Gifts a property to Kubera, his son
absolutely. The said property is a house. In the
gift deed Amarnath imposes a condition that
Kubera shall stay.
• Kubera contends that he need not stay.
• Answer: No. The said condition is repugnant to
the interest created by the instrument of gift
deed. Gift given was an absolute gift. A
direction given repugnant to the terms of the
interest created is bad. It is hit by the
provisions of section 11 of the transfer of
property act. So the condition is bad
• Amarnath Gifts a property to Kubera, his son
on a condition that he shall stay in the said
property. If he fail to stay in the property the gift
stands forfeited.
• Kubera contends that he need not stay.
• Answer: yes. The said condition is not
repugnant to the interest created by the
instrument of gift deed. Gift given was not an
absolute gift. A direction given is not repugnant
to the terms of the interest created. So it is not
bad. It is not hit by the provisions of section
11 of the transfer of property act. So the
condition is not bad.
• Amarnath assigns a life interest in respect of his
garden in favour of his daughter lakshmi for her
maintenance.
• In the said deed of assignment he had indicted that
Lakshmi shall not cut the trees.
• Lakshmi wanted to cut the trees to improve her
income.
• Question: could Lakshmi do so. If not why.
• Answer: the interest created in favour of lakshmi is not
an absolute interest. It is a life interest. In view of it
Amarnath can impose any condition. The present
condition is not repugnant to the interest created and
is n consonance to the interest created. Hence the
condition can not be said to be bad.
• Amarnath sells by an absolute sale deed the interest
he had in respect of his garden in favour of Lakshmi.
• In the said deed he had indicted that Lakshmi shall not
cut the trees.
• Lakshmi wanted to cut the trees to improve her
income by constructing a multistoried shopping
complex.
• Question: could Lakshmi do so. If not why.
• Answer: the interest created in favour of lakshmi is an
absolute interest. It is not a life interest. In view of it
Amarnath can not impose any condition. The present
condition is repugnant to the interest created and is
not in consonance to the interest created. Hence the
condition can be said to be bad.
Jafri begum vs syed.ILR 1901all 383
• A as an arbitrator made an award between two sisters
giving each a half share of an estate and appointing
the husband of one of the sister as the manager. He
also directed that neither sister would have a right to
claim a partition.
• One of the sister died. There after her son filed a suit
for partition
• Question could he do so.
• Answer:- the privy council held that the said condition
may bind the parties to the agreement and not others.
Further the court held that the arbitrator can not make
a divisible property as an indivisible one for ever.
Section
• .
10 and 11
Transfer of rights may be Absolute transfer. That is
either all rights or only no right is retained by the
few rights, that is absolute transferor,
or may be partial in
nature.
Power of alienate and Power to enjoy without

makes restraint void. being any dictation by
others as how to enjoy.
On the happening of an insolvent or intend
to dispose of.
• an interest is created absolutely in favour of any one
person, that is a transferee.
• but the terms of transfer direct that such interest shall
cease to have any effect
if the transferee becomes an insolvent, or
endeavoring to transfer or dispose off the same.
he shall be entitled to receive and dispose of such
interest as if there were no such interest.
• Exception to the above Rule.
Lease for the benefit of the lessor; or
persons claiming under the lessor.,
then the said restriction would not apply.
Section 12.
• Corresponding law section in succession Act 1925 is
not there. However in the succession Act of 1865 vide
section 107 there was a corresponding provision.
• Forfeiture on insolvency then the condition is bad.
• Forfeiture in the event of sale or alienation the transfer
ceases the condition is bad.
• The tenor of the bar under this section would not be
applicable if it is in the interest of the lessor or any
person claiming under him
• This applies mainly in case of transactions which are
akin to gift.
• In case of sale or mortgage generally this contingency
would not arise.
Section 12
• Condition subsequent.
• The condition is intended by the transferor to
have effect of defeating the interest created.
• The object of this section is to encourage free
alienation and circulation.
• This is another limb of the principle ‘law favors
circulation and not accumulations’
• The condition would be bad and not the
transfer.
• The clause of forfeiture shall be construed
strictly.
• Alexander gifts the property to Thomas. The deed contains a
clause that in the event Thomas becomes insolvent then the
transfer would become inoperative and the property would
revert back to Alexander or his heirs.
• Thomas after some time becomes an insolvent person.
• The official liquidator puts forth a claim in respect of the said
property which stood in the name of Thomas to liquidate the
liabilities.
• Alexander puts forth a claim and contends that the property
has revered back to him in pursuance to the Covent in the gift
deed.
• Question:- whether the plea of Alexander is sustainable.
• Answer: No. the condition in the deed that in the event
Thomas becomes insolvent the property gets revered to the
transferor is against the principle laid down in section 12.
hence the same is bad. The claim of the liquidator is to be
upheld.
• Alexander gifts the property to Thomas. The deed
contains a clause that in the event Thomas intends to
sell the property, then the transfer would become
inoperative and the property would revert back to
Alexander or his heirs.
• Thomas after some time tries to dispose of the
property.
• The son of Alexander puts forth a claim in respect of
the said property and contends that the property has
revered back to him in pursuance to the Covent in the
gift deed.
• Question:- whether the plea of the son of Alexander is
sustainable.
• Answer: No. the condition in the deed that in the event
Thomas tries to dispose of the property, the property
gets revered to the transferor is against the principle
laid down in section 12. hence the same is bad. The
claim of the son of Alexander cant not be upheld.
Transfer to the benefit of an unborn son
is bad.,
• On transfer of a property interest is created for the
benefit of a person not in existence at the date of
transfer, subject to a prior interest created by the same
transfer, the interest created for the benefit of a person
shall not take effect, unless it extends to the whole of
the remaining interest of the transferor in the property.
• The transfer could be there only in respect of a living
person and not an unborn person.
• Any transfer in favour of a person who is not born on
the date of transfer is bad.
• This principle is reflected in section 113 of succession
Act and section 13 of the transfer of property Act.
Specific mechanism of section 13
• Person intending to transfer the property for the
benefit of an unborn person shall at first create
a life interest/estate in favour of a living person
and after it an absolute interest in favour of an
unborn person.
• Till the person in whose favour a life interest is
created is alive, he would hold the possession
of the property, enjoys its usufructs.
• During his life time, if the person is born then
the title of the property would vest in him
immediately but he would get the property only
after the death of holder of life interest.
Example Specific mechanism of section 13
• On 1.1.1900 “A” executes a deed creating a
life interest in favour of his Brother “B”. The document
provides that the property shall vest absolutely in
favour of his Brother’s child.
• On 1.1.1900 “B” was not a married Person.
• On 1.1.1900 “B” took possession of the
property.
• On 1.12.1900 “B” got married.
• On 1.1.1903 “B” got a child.
• On 1.1.1909 “B” died.
• The said child got the right in respect of the property
on the date of birth itself. However the possession
continued with B. the said child got possession on
1.1.1990. that is on the death of B.
property.
• On 1.1.1907 “B’s” child died.
• On 1.1.1909 “B” died.
• So the property vested with child on 1.1.1903, and
thereafter the death of B the right to possession goes
to the heirs of the child.
property.
• On 1.1.1909 “B” died.
• Then what happens?
• //////////????????????////////////
• On 1.1.1900 “A” executes a deed creating

a life interest in favour of his Brother “B”. The
document provides that the property shall vest
absolutely in favour of his Brother’s child.
• On 1.1.1900 “B” was not a married
Person.
property.
• On 1.1.1909 “B” died unmarried.
• Then what happens?
• ??????????????????
Life interest and absolute interest
• Life interest:- an interest or estate which determines on
termination of life.
• Absolute interest:- an interest or estate which is given without
any condition to regulate about the vesting. That is full and
absolute interest.
• Amarnath a rich planter at Wellington has four sons and two
daughters. Among the said daughters the first daughter who
had got married at an age of 12 years lost her husband and
came to the house of her parents to take shelter. The second
daughter did not marry as she felt that her life may end in
tragedy. Amarnath wanted to give property to the sons and
daughters. He created a document that the sons shall take the
property subject the condition that the daughters shall have a
right enjoy the property till they are alive and after their death
the sons shall take the property..
• What is the type of interest the daughters had in contrast to the
rights of the son.
• Life interest could be in respect of any number of persons but it
should be in favour of living persons and not a person yet to
born.
• Life interest in favour of an unborn person is bad, unless it
extends to the whole of the remaining interest of the property.
• Amarnath a rich planter at Wellington has four sons and two
daughters. Among the said daughters the first daughter who
had got married at an age of 12 years lost her husband and
came to the house of her parents to take shelter. The second
daughter did not marry as she felt that her life may end in
tragedy. Amarnath wanted to give property to the sons and
daughters. He had an apprehension that the sons may
squander the property which he had earned due to life long
struggle. He created a document that the sons and daughters
shall take the property subject the condition that they shall have
a right enjoy the property till they are alive and after their death
to the son of the last son of the first son who had then attained
an age of 6 months.
• What is the nature of interest of the daughters, sons and grand
son?
• All the sons and daughters will have the property as life interest
while the child will have the absolute interest.
Salient aspects of section 13.
Applicability.
Regarding Movables.
The principle laid down in this section applies.
Regarding immovable.
The principle laid down in this section applies
Regarding Mohammedans.
Gift to a person not in existence is void
Regarding Hindus.
According to pure Hindu law gift in respect of
an unborn person is void.
Persons not in existence.
Persons not in existence.
• Person in existence whether covers the concept of a
person not yet born but in womb = En ventre sa mere
• Child in womb is regarded as person in existence as
per Hindu law and English law.
Lord Russell says in Elliot Vs. Joyce:- There are
many cases decided by the courts in England in which
posthumous children have been held to be included in
gifts to children born in father’s life time or children
living at the time of the death of the father. The
foundation for the said decisions is not the natural or
ordinary meaning of the word used in such they
include posthumous child, but an artificial meaning
shall be placed upon the words because the potential
existence of such child places it plainly with in the
motive and reason of a gift.
Problems.
• Amarnath bequeaths the property to his eldest son
Appu. After the death of Appu the property shall go to
the eldest son Choma for life and after the death of
Choma the proper shall go to Ramu, the eldest son of
Choma.
• On the day of death of Amarnath Appu had no son and
choma was born subsequently.
• Question: what is the nature of interest of each one of
them.
• The bequest to choma is not an absolute interest and
is of a liited estate. A limited estate can not be there in
favour a child unborn. So the life interst in favour of
choma fails as it is void.
Section 13, 15, 16 and 17
• Section 13, 15,16 and 17 should be read
together.
Section 16
Section 13
Section 15
Section 17
• Section 13 deals with the principle
relating to un born child.
• Section 15 deals with reference to
transfer to a class.
transfer to take effect on failure of
prior interest.
transfer to create accumulation.
• Section 13 vis a vis 15. Section 15 of the transfer of
property Act deals with Class transfer.
• Section 13 speaks about transfer to unborn persons
as bad. Section 15 speaks regarding transfer to a
class.
• When ever there is a transfer to a class and few come
under the cloud of section 13 the transfer altogether is
not bad though it is bad in part.
• Section 15 corresponds with section 115 of
succession Act.
• What is a class?
• When all those come under one category then it is a
class.
• When they come under a particular description then it
is a class.
• When they come under particular definable formula
then it is a class.
Section 15
• Example:
 Transfer to son’s sons,
 transfer to son’s daughters,
 transfer to widows,
 transfer to brothers,
 transfer to sisters,
 Transfer to grand children,
 Transfer to Nephews,
 Transfer to nieces.
Where the name of transferee is specifically named
then it would not amount to a class transfer but would
constitute individual transfer.
Where the name of transferee is specifically
named then it would not amount to a class
transfer but would constitute individual transfer.
Example:
Transfer to the grand children namely Ramu,
somu, Mohan and suraj it is not a class transfer.
Transfer to the grand children born to Ramu, it
is not a class transfer.
 Transfer to the children born to Ramu through
his first wife namely prema it is not a class
transfer.
Section 16 vis a vis 13
Section 16 corresponds with section 116 of
succession Act.
Section 16 is an extended limb of the rule
relating to transfer to an unborn person.
Here we have to look at prior interest and
ulterior interest or subsequent interest.
When a prior interest is void due to the reason
of section 13 the section 16 will apply.
If the prior interest is not void due to any other
reason then section 16 will not apply.
Girish dutta vs dattadin.
• “A” made a gift to her nephew’s daughter
“B” for life and then to “B’s” male
descendents absolutely, if she had any
descendents. In case if she had no male
descendents then to the B’s daughter
without any power of alienation. In case B
had no male or female descendent then to
her nephew, D.
• B died without any child.

• Question: What is the nature of gift to the B’s unborn
daughters.
Answer: B’s unborn daughters had a limited interest.
• Question: What are the prior interests created.
Answers: (i) prior interests were in favour of B for life,
(ii) B’s daughter with a limited interest.
• Question: What are the ulterior interest created.
Answer (i) B’s male descendent absolutely. (II) in case
B has no male or female descendent then to D.
• Question: What would be the impact of these
interests.
The court held: That the gift to B’s unborn
daughters was a limited interest only. Hence the
transfer to nephew which was dependent upon
prior interest also failed.
Section 17 vis a vis 13
• Direction regarding accumulation.
Section 117 of indian succession act is
analogous to this section.
What is accumulation and to extent it is

permitted.
What is the difference between indian law and

English law regarding the principle of
accumulation.
Direction for Accumulation
• Section 17 of the t.p.act envisages that any direction
to accumulate the income arising out a property is
bad.
• There are certain limitations in this context.
• They are with reference to
• (i) the life time of the transferor, or
• (ii) period of 18 years from the date of transfer.

• However the said directions would not
apply with reference
A. to any direction towards the payment of
debt of the transferor or any other person
taking interest under the transferor.
B. Provisions of portions for children or
remoter issue of the transferor or any
other person taking the interest under
the transferor.
C. Preservation and maintenance of the
property transferred.
• This section is based on the principle that
the law favors transfer and not
accumulation.
• Section 117 of the Indian Succession Act
is the analogous provision.
• The section 17 underwent a change in
1928 when compared to its earlier
counterpart.
• Earlier to 1928 the rule relating to
accumulation was too rigid and did not the
accumulation in a liberal way.
Accumulation and to what extent it is permitted.
• The rule against accumulation resembles the rule against
inalienability.
• This rule is based on the principle of remoteness of control over
property whether or not vested in a beneficiary, rather than the
remoteness of vesting.
• The common law principles had envisaged twin rules with
reference to the transfer of property, and they were (i) regarding
inalienability (ii) regarding accumulation.
• These two restrictions originally went hand in hand.
• They parted the company of one another when the
Accumulations Act 1800 was enacted. The other being that of
Thellusion Act.
• Now provisions of both the Acts are merged in English Law of
property Act 1925.
• Section 164 of the English Law of property Act 1925 is the
relevant provision.
• The direction for accumulation may be express and as well as
implied.
Accumulations.
• Accumulation is permissible to a limited extent.
• Excessive Accumulations, are the directions to
be for long time than that is allowed by the
section.
• Section 11 speaks about the voidness
regarding the repugnancy when there is an
absolute creation of interest on transfer of
property.
• Section 17speaks about the voidness
regarding the accumulation for which there
need not be an absolute transfer of property
Accumulation
• As per the Hindu law texts the accumulation for
the benefit of Donee was not permitted. The old
Hindu law had considered that the
accumulation of income goes along with capital.
• Under Mohammedan law the gift takes effect
forthwith absolutely and therefore the question
imposing any condition would not arise.
Imposition of any condition would be repugnant
to the very basis of foundation of Mohammedan
law. As per Mohammedan law a direction for
accumulation in a gift is invalid. The section 17
is in consonance with the principle reflected in
section 17 main part
Accumulation in
English law and Indian law
Life or lives of the Life or lives of the
transferor or transferors. transferor or transferors
21 years from the death of 18 years from the death of

the transferor. the transferor.
During minority of any During minority of any

person living at the death of person living at the death of
the transferor. the transferor.
During the minority of any During the minority of any

person who would be person who would be
entitled to the property, if entitled to the property, if
was of full age. was of full age.
Period of 18 years from the date of
transfer.
• The computation of the period of 18 years in
Indian law should be done from the date of
transfer.
• If the transferor transfers the property and
directs its income for a period of eighteen years
which is to commence from a later date the
accumulation would be allowed only during the
portion of 18 years from the date of transfer.
• With reference to the rest of the period the
condition would be void.
• Illustration.
• Amarnath transfers to choma property in 1920.
• The gift deed contains a clause that the income
derived from the property shall be accumulated.
• Amarnath dies 20 years after the date of said
transfer.
• Question till what time the restriction regarding
accumulation of the income runs.
• Answer: the restriction regarding the
accumulation with reference to the date is taken
it is 18 years. With reference to the life of
transferor is taken it would be 20 years.
• Taking the longer of the said two dates the date
should be taken as to 1940.
• Illustration.
• Amarnath dies 10 years after the date of said transfer.
• Answer: the restriction regarding the accumulation
with reference to the date is taken it is 18 years or the
life of the transferor. With reference to the life of
transferor is taken it would be 10 years, that means
the accumulation could be done till 1930. if the date
from 18 years is taken then it would be till 1938.
• Taking the longer of the said two dates the date should
be taken as to 1938.
• Illustration.
• The said accumulation should commence from 1930.
• Answer: the accumulation as per deed is taken then it
would be 1938. from the date of the deed is taken then
it would he 1948 law contemplates that the
accumulation could be there for 18 years from the
date of transfer and any period in excess is void.
• There fore the period from the date of transfer is 18
years. Any period after 1938 is void.
• A transfers a property to B in 1940.
• A direction will be there that the accumulation shall be
there for 30 years till 1970.
• A dies in the year 1965.
• Question which period shall be taken in to
consideration as to the accumulation.
• Answer: the life span of transferor shall be taken in to
account and not the 18 years from the date of transfer
or 30 years as stipulated in the deed to run the period
till 1970.
• Hence the restriction is valid till 1965. any period
beyond the life span of the transferor is not valid. So
the period from 1965 till 1970 shall be ignored.
• A transfers a property to B in 1940.
• A direction will be there that the accumulation
shall be there for 30 years till 1970.
• A dies in the year 1950.
• Question which period shall be taken in to
consideration as to the accumulation.
• Answer: the life span of transferor or 30 years
as stipulated in the deed to run the period till
1970 shall not be taken in to account and 18
years from the date of transfer.
• Hence the restriction is valid till 1958. any
period beyond the 18 years is not valid. So the
period from 1958 till 1970 shall be ignored
• Amarnath transfers a property that is deposits of
money to Billa in 1940.
• A direction will be there that the interest derived from
the deposits if the said property shall be used for the
loan which he had barrowed from Chinmaya.
• Chinmaya puts forth a plea with Billa to clear the
outstanding payable by Amarnath.
• Billa contends that any restriction imposed on him to
enjoy the accumulation is bad and hence he can not
be made to pay the amount as the gift is an absolute
transfer. .
• Answer: the direction of Amarnath is to clear his debts
payable to Chinmaya. So the direction is protected
under the exception. Therefore the plea of Billa can
not be accepted. Billa has to pay the amount payable
to Chinmaya.
• Amarnath transfers a property to Billa in 1940 by way
of trust.
• A direction will be there that the rent payable by the
tenant shall be used for the loan which he had
barrowed from Chinmaya.
• Chinmaya puts forth a plea with trust to clear the
outstanding payable by Amarnath.
• Trust contends that any restriction imposed on him to
enjoy the accumulation is bad and hence he can not
be made to pay the amount as the gift is an absolute
transfer. .
• Answer: the direction of Amarnath is to clear his debts
payable to Chinmaya. So the direction is protected
under the exception. Therefore the plea of Trust can
not be accepted. Trust has to pay the amount payable
to Chinmaya.
• Amarnath transfers a property to Billa in 1940.
• A direction will be there that the income derived
shall be used to look after the minor children of
Amarnath and provide them proper education.
• Question whether Billa could contend that the
said clause is hit by the doctrine of
accumulation.
• Answer: the direction of Amarnath is to provide
education for the children. So the direction is
protected under the exception. Therefore the
plea of Billa can not be accepted. Billa has to
pay the amount towards the education of the
children of Amarnath.
Whether the entire accumulation to
be spent or only a portion.
The exception number 2 envisages about the
portion for children or remoter.
The said children shall be of transferor or any
other person taking benefit under the transfer.
If the said children are not under the said
category then the exception would not apply.
The portion would mean the portion of the
property settled or provided in favour of the
children means from the said property so
given an not the other property.
Rule against perpetuity.
• 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 he attains
full age the interest created is to belong.
• What is perpetuity and What is English counter part on
this aspect.
• Why this rule against perpetuity
• Impact regarding the rule against perpetuity. Whether
this rule is regulated by any other provision of the
transfer of property Act.
• Is there any corresponding rule in other laws.
Accumulation for preservation of
property
Thellusion Act in England had not made any provision
with reference to making provision for accumulation
for the preservation of the property.
In India the law specifically envisages that the
provisions could be made in the deed to provide
accumulation for the purpose of preservation of the
property.
Note while interpreting the exception No.1, 2 or 3
the same shall be interpreted strictly and not
liberally as any exception needs a strict
interpretation and it could be there to aid the main
provision and not to annul the main provision.
Perpetuity.
• Perpetuity means continuous or unending transaction.
• It is tying up property for an indefinite period.
• When there is a transfer of property from generation
after generation then it is known as perpetuity.
• Jarman says in his book on law of Wills: “that the
perpetuity in the primary sense of word is disposition
which makes a property unalienable for an indefinite
period”
• Lewis says that the perpetuity is a future limitation
whether executory or by way of remainder and of
either real or personal property which is not to vest
until after expiration of or will not necessarily vest with
in the period fixed and prescribed by law for the
creation of the future interests. The object of the rule
against perpetuity is to restrain the creation of future
conditional interest in the property.
Why perpetuity not accepted.
• Based on public policy.
• Every effect to create perpetuity is void.
• The perpetuity may arise in two ways in English law
that is:-
Taking away from the owner of the property the power of
alienation which is an inseparable part of ownership.
Traceable to section 10 in Indian law.
By creation of future remote interest. Traceable to
section 14 in Indian law.
The English rule against perpetuity in fact a
development in an extended form the rule against
alienation.
English law relating perpetuity.
• Historical back ground in English law:
• Origin is traceable to Statute of users 1535 and
Statute of Wills 1540.
• The statute of users took birth from the concept of
Trusts.
• The statute of Wills took birth from the concept of
succession.
• These statutes continued to hold the field till 1925.
• During 1925, the English law of Property Act was
enacted to bring about a consolidated property
legislation. This replaced several legislations which
had a direct bearing on the law relating to the property.
Section 14
• Section 114 of Indian succession Act is analogous to
this section.
• The Indian law relating to rule against perpetuity and
English law has a slight difference.
• English law envisages that the property could be tied
up during a life or lives of any existing persons and for
21 years after the death of the survivor irrespective of
minority of any person.
• Indian law envisages that the property could be tied up
during a life or lives of any existing persons and for
minority of the person to whom the interest is created
is to belong.
Why to accept the rule against perpetuity.
• The reason for rule against perpetuity is
that “ the mischief that would arise to the
public from estates remaining for ever, or
for a long time unalienable or
untransferable from one hand to another,
being a damp on industry and prejudice
trade, to which may be added the
inconvenience and distress that would be
brought on families whose estates are so
fettered”.
Section 14
• A transfer can not operate to create an
interest:-
1. which is to take effect after the life time of one
or more persons living at the date of such
transfer, and
2. Minority of such person who shall be in
existence at the expiration of that period.
Note:- the age of minority ceases in India
as per the provisions of Indian
Majority Act at 18 years.
• Siddesh gupta bequeaths A property. In the said deed it it
stipulated that the property is bequeathed to Amarnath for his
life. It also states that after the death of Amarnath the property
should go to Balu for life.
• A further stipulation is there that after the death of Balu the
property shall go to such of the sons of Balu who attains an age
of 25 years.
• Amarnath and Balu are of the age group where in Amarnath is
elder than Balu.
• Amarnath and Balu survives Siddesh Gupta.
• Son to Balu is born after the death of Siddesh Gupta.
• The said son attains 25 years after 18 years from the date of
death of longer liver of the two.
• Question what is the position regarding the vesting of the rights
• Answer: vesting of rights may be postponed from the date of
death of younger of the two for a period of 18 years and not
more than that. In this case the vesting of rights is made more
than a period of 18 years the bequest after B’s death is void.
• Siddesh gupta gifts A property. In the said deed it it
stipulated that the property is bequeathed to Amarnath
for his life. It also states that after the death of
Amarnath the property should go to Balu for life.
• A further stipulation is there that after the death of Balu
the property shall go to such of the sons of Balu who
attains an age of 25 years.
• Amarnath and Balu are of the age group where in
Amarnath is elder than Balu.
• The said son attains 25 years after 18 years from the
date of death of longer liver of the two.
• Question what is the position regarding the vesting of
the rights
• Answer: vesting of rights may be postponed from the
date of death of younger of the two for a period of 18
years and not more than that. In this case the vesting
of rights is made more than a period of 18 years the
bequest after B’s death is void.
• Rule against perpetuity would not apply in respect of Charge.
• Because the charge does not involve any transfer of property.
• The charge is only to secure a claim over an immovable
property.
• Rule against perpetuity would not apply in respect of
easement.
• Creation of an easement is not a transfer.
• Easement is only creation of a right to enjoy over others
property for the better enjoyment of one’s own property.
• A stipulation in a lease for renewal can not be construed as
covenant offending the Rule against perpetuity.
• The future right of redemption is not a clause hit by rule against
perpetuity.
• A covenant which runs with the land the rule against will not
apply.
• The rule against perpetuity as incorporated in section does not
apply to Mohammedans as the Mohammedan law does not
otherwise recognize the rule regarding perpetuity.
• The rule against perpetuity as incorporated in section does
apply to Hindus though Hindu law does not otherwise recognize
the rule regarding perpetuity except in case of endowment.
• Salient features of In respect of future
interests.
• What is a future interest.
1. An interest intended to vest or come in to
existence in future.
2. Regarding the interest which has to come on a
future date the law prescribes certain limitation
and time frame.
3. Beyond the said time frame and limitation the
vesting can not take place.
4. If an interest is not created at a future date then
this section will not have any application.
5. The transferor may create interest in respect of as
many persons as he likes.
Section 14, 15, 16,17 and 18
• Section 14, 15,16,17 and 18 should be read
together.
Section 16
Section
Section 14 17
Section 15
Section 18
• Section 13, 15,16 and 17 should be read
together.
Section 16
Section 13
Section 15 Section 17
Transfer in perpetuity .
• .
Private Public
purposes Purposes.
Prohibited Permitted
And is subject to vide
Rule in sec.14,16 17.
section 15 and 18
Section 14 and section 18
• Where there is a transfer for the benefit of the public in
the advancement of religion, knowledge, commerce,
health, safety or any other object beneficial for
mankind the tenor of law as laid down in section 14
would not apply .
• Transfer of property for charitable purposes have
always regarded by law with great favour.
• The dedication for charity is an exception to the rule of
perpetuity.
• Word charity is not used in section 18.
• This is common in both English law and Hindu law and
Mohammedan law.
• In Indian succession Act though there is a
corresponding section to section 14 of the T.P.Act ,
there is no corresponding section to section 18.
Section 15 and 18
• Section 15 deals with class transfer and if the interest
in respect of some of the members fails the transfer to
the class will not fail.
• Section 18 envisages where the transfer is for the
benefit of the general public.
• The object of both the provisions are similar.
• They do not have any conflict.
• They are to promote a same cause.
• Therefore the framers of law have made provision for
14, 16 and 17 in section 18 as one group while they
have not brought section 13 in to the said group,
though section 13 will have an impact on section
15,16 and 17.
General rule while interpreting section
14,15,16,17 and 18.
• While construing a case where there is a combination
of both private and public purposes:
• The part relating to private purposes are hit by section
14, 16, and 17.
• The part relating to public purposes would be
protected by section 18. English law speaks about
charities.
• If the same conditions are for general public and
private purposes the part relating to the private
purposes would be bad. Therefore what is beneficial
to the public purpose shall be maintained.
Transfer in perpetuity for benefit of public
• The restriction in section 14: rule against
perpetuity.
• The restriction in section 16: rule regarding
failure of prior interest the subsequent interest
shall also fail.
• The restriction in section 17: rule against
accumulation.
Not to apply to the transfer of property
for the benefit of the public in
advancement of religion, knowledge,
commerce, health, safety, or any other
object beneficial to mankind.
• Section 18, 14, 16 and 17 should be read
together.
Section 16
Section 18
• Transfer in perpetuity for benefit of public section 18.
• `what is a religious purpose?
• what is a purpose for knowledge?
• what is a purpose for commerce?
• what is a purpose for health?
• what is a purpose for safety?
• what is a purpose for any other purposes?
• These purposes are not specifically defined
.they depend on the facts of each case.
• However the characteristic feature of it should
be for public purposes and not private
purposes.
Transfer in perpetuity for benefit of
advancement of public religious
purposes*section18*
• A gift in favour of a religion is recognized as
entitled to the exemption.
• A gift in perpetuity for the purposes of masses
for the soul of the donor has a divergent views.
There is no uniformity on this aspect.
• If any part of the transfer has both partial
dedication to the religious purposes and other
part is for private or non religious purposes the
later would fail, while the former will have a
protection.
Controller of Estate Duty Vs Usha. 1980(1) S.C.C.315
• A gift deed was created with certain conditions such as
• No. 1 for the benefit of A, B, and C.
• No.2. to promote the cause of veerashavas
• Question. What is the nature of the condition and to what extent
they could be sustained.
• Answer.
• Condition No.1 invalid as hit by section 18 as it is not for public
purposes and for the purposes of individuals.
• Condition No. 2 valid as, section 18 protects it as it is for
advancement of veerashaiva activities of a religion.
• The supreme court said that if the terms of the document under
which the properties or their income are gifted, amount to their
complete dedication for religious or charitable purposes, then
any part thereof which is given by way of gift to any person
contrary to the rules against perpetuities inures to the benefit of
the endowment and becomes part of properties endowed. On
the other hand if the dedication is partial, such part which is hit
by the rule against perpetuities reverts to the donor or his heirs.
Transfer in perpetuity for benefit of advancement of
public health and education purposes*section18*
• Any bequest of the property for the advancement of
any hospital, is exempt from the rule.
• Gifts or settlement of property for charitable
dispensaries, trauma centre, eye care centers
hospitals, institutions offering medical care,
establishment of yoga and nature care therapy are
exempt from the rule against perpetuity.
• In Brighton vs. Murex a gift was effected to establish
a hospital for the benefit of the people of the locality.
• A pleas was put forth that the same is hit by the
principles of perpetuity.
• The court held that though there is a creation of
perpetuity, but the same is to advance the condition of
health of the public at large. Hence the said gift in
favour of trust to establish a hospital is not bad.
M. Keshva Gownder Vs Rajan.
• “A” created a trust and settled some properties and
appointed himself as one of the trustee. The objects
were as under:-
• No. 1. To erect the statue of his father.
• No. 2. to pay fee to prosecute education by four
students of his community.
• No.3. to maintain statute.
• No.4. to celebrate the birth day every year.
• No.5. After his death the property shall be divided in to
four parts and each of the trustee shall be given a
part. The said part could be inherited by the male
issues of the respective trustee.
• Madras high court held:-
• The dedication did hit the rule against perpetuity as
the dedication of the property was on the descendents
of the donor in certain specified lines and at all
material times the income was to be divided amongst
the trustees.
• The payment of fee for four children of the community
is not hit by the provisions of rule against perpetuity
and rule under section 18 as it is for the benefit of the
community.
• The erection of statute of the father, celebrating the
birth anniversary were not for the benefit of public.
• The clause in the deed providing the tuition fee for four
deserving students could be separated and to that
effect trust is valid. AIR.1976 Mad.102
Interests
• It is a term of generic nature having a wide
meaning.
• With reference to the property one can say that
to what an extent a person has got direct
involvement with reference to the property.
• The interest may be that of a absolute owner,
mortgagor having much concern about the
money one has advanced to another with
reference to the security value, lessee to enjoy
the property as against the payment of a fixed
premium payable once in a month or even an
year.
.
Interests
Contingent
Vested.
On happening
forthwith of an event
which must happen
Specified
Specified
uncertain
uncertain
event
In terms event happen
not happen
specifying
that it is to
take effect forthwith
Vested interest.
• On transfer of a property,
1. an interest is created in favour of one person by another,
• Without specifying the time as to when the said
interest to take effect, or
• In terms specifying that it is to take effect forthwith,
or
• On happening of an event which must happen,
Then such an interest is vested unless a contrary
intention appears from the terms of transfer.
Note:-
A. The part (i) 0f section 19 shall be read with part (ii)
and the Explanation of that section.
B. the section 19 shall be read with section 20 with
reference to the unborn persons.
Contingent interest.
• On transfer of a property,
1. an interest is created in favour of one person by
another,
• to take effect only on specified uncertain event
happens, or
• Specified uncertain event shall not happen.
Then on non happening of such an event such an
interest as acquired is known as a contingent interest.
On happening of the interest the interest becomes
vested interest.
On non happening of the uncertain interest the interest
the interest would be a vested interest.
Analogous provisions
• Section 19 of Transfer of property Act
corresponds with section 119 of Indian
Succession Act.
• Section 21 of Transfer of property Act
corresponds with section 120 of Indian
Succession Act.
• The provisions of section 19 and 21 are not
applicable in respect of Mohammedans.
• Prior to 1929, the provisions of section 19 and
21 were not applicable to Hindus, but now the
said provisions are applicable to Hindus.
• Amarnath a rich land lord bequeaths to Balla Rs.10,000,00/=
• The said amount to be paid to Balla on the death of
Chandrasekhar.
• Prior to the death of Amarnath what would be the position.
• Answer:- The property with reference to Balla is only a spes
succession. Balla has no right with reference to the property.
• On the death of Amarnath, what would be the position.
• Answer:- The property with reference to Balla has become a
vested interest.
• On the death of Chandrasekhar what would be the position.
• Answer:- The property with reference to Balla would pass on,
due to the event of death of Chandrasekhar.
• On the death of Balla before Chandrasekhar what would be the
position.
• Answer:- The right to property with reference to Balla would
pass on to the heirs and they would take it subject to death of
Chandrasekhar.
• Amarnath a rich land lord bequeaths to Balla property
worth of Rs.10,000,00/=
• The said property to be given to Balla on the Balla
attaining an age of 18 years.
• Prior to the death of Amarnath what would be the
position.
• Answer:- The property with reference to Balla is only a
spes succession. Balla has no right with reference to
the property.
• When the property gets vested in Balla.
• Answer: on the death of Amarnath property gets
vested in Balla.
• When does Balla get the property.
• Answer: on attaining an age of 18 years.
• Zio a pang gives to Amarnath a bequest.
• The said bequest was for life.
• After the death of Amarnath it shall go to Balla.
• Question. On the death of Zio a Pang what is
the position of the property vis a vis Amarnath
and Balla.
• Answer: Regarding Amarnath it is a life interest,
while Balla it is a vested interest.
• Zio a pang gives to Amarnath a bequest.
• The said bequest was till Balla attains 18 years.
• on Balla attaining 18 years, he shall have the
property .
• Question. On the death of Zio a Pang what is
the position of the property vis a vis Balla.
• Answer: on the death of Zio a pang the property
becomes Balla’s vested interest
• Amarnath transfers his whole of estate to
Balla.
• One of the condition is that Balla shall
clear certain dues and debts of Amarnath.
• On clearing the debts and enjoying
property for a period of 10 years the same
shall go to Chandrasekhar.
• Question: what shall happen to the
property at the death of Amarnath.
• Answer: ///////////??????????////////
On happening of an event which must
happen.
• The death of a person is certain and it can not be said
to be an event of uncertainty.
• If a transfer is made to a person that the transfer shall
take effect from the date of another person, it can not
be said that the event is of an uncertain nature.
• Amarnath gives certain properties to Balla with a
condition that Balla shall get the possession on the
death of Chandrasekhar.
• The event of death of Chandrasekhar is certain, and it
may happen either now or later but it is of a certain
nature.
• Therefore the property vests with Balla forthwith and
possession would be delayed.
• Amarnath gives certain properties to Balla with
a condition that Balla shall get the possession
on the death of Chandrasekhar.
• A condition is imposed that in case if Balla dies
earlier to Chandrasekhar then the property shall
go to Mallika.
• The event of death of Chandrasekhar is certain.
Similarly the death of Balla is certain. However
the death of Balla may happen before or after
the death of Chandrasekhar.
• Therefore the property does not vests with Balla
forthwith. It is not a vested interest but an
interest of a contingent nature, that is the event
of death of Balla vis a vis Chandrasekhar.
Characteristic feature of a vested
interest.
• Transferable.
• Heritable
• The interest would vest but the enjoyment
would be postponed.
• An unborn person acquires interest on birth.
• In case if there is a contrary intention then
vesting would take place on happening of the
said event.
• Vested interest will not have condition
precedent.
U.Zeo Vs Ma Mya May.
AIR 1930 Rangoon 184
• Trust was created
• A). to pay yearly a sum of money for the life of
X for life, out of rents and profits.
• B). To discharge the Mortgage out of the
balance,
• C). Convey to B after the death of X .
• Question: what is the nature of interest on the
death of X.
• Answer: it is a vested interest, as the death of X
is an event of certainty.
Bhaga Bhatti Barmanya Vs K.C.Singh
ILR.38 Cal 468
• Bequest was made
• (1) to mother for life
• (2) wife for life, and thereafter
• (3) Nephews.
• When did the Nephews took the interest.
Was the question
• The interest in favour of nephews would
pass on due to the death of the testator.
Section 20 and its impact on section 19
• Section 20 envisages that on transfer of a property,
1. an interest is created in favour of a person not living,
He acquires upon his birth, unless a contrary intension is indicated
from the terms of transfer.
A vested interest, although he may not be entitled to enjoyment
immediately on his birth.
• Section 20 has to be read with section 13 and section 19.
• Illustration:-
• Property is given to Amarnath for life.
• After that the property shall go to his son.
• On the date of transfer Amarnath had no son.
• The interest in favour of son is of a contingent nature.
• Soon after the son is born the interest becomes a vested
interest.
• The condition that the son shall take property after father’s
death does not make the interest of the son any less a vested
interest.
• Trust was created
• A). to pay yearly a sum of money for the life of
X for life, out of rents and profits.
• B). To discharge the Mortgage out of the
balace,
• C). Convey to B on the birth of a child to X .
• Question: what is the nature of interest to the B
• Answer: it is not a vested interest, as the birth
of a child to X is an event of uncertainty.
• The child if is born then it becomes a vested
interest.
Kokilambal vs N.Ramn
• A inherited certain properties from her husband and settled
them in the following manner;
• 1. in favour of B the son of the sister of her husband, whom she
wanted to adopt as she was not having any children.
• 2. the property should be enjoyed by her and B for her life time.
• 3. B was authorized to collect rent and carry on the repairs and
pay municipal taxes.
• The remaining amount shall be divided between her and B
equally.
• Though she wanted to relinquish her right to alienate the did in
deed provided the right to alienate to both of them jointly.
• B died during the life time of A.
• A revoked the deed of settlement and created a fresh
settlement deed in favour of D her sister’s daughter and
husband of D.
• B’s brother as a legal heir of B instituted a suit claiming property
by contending that under settlement deed B had acquired a
vested interest.
• The trial court and high court had held that vested right was
created in favour of B and therefore the B’s brother had
inherited the property. The revocation by A subsequently as
bad as she had no authority
• Issues before supreme court were:-
1. Whether the nature of interest created in favour of B was a
vested interest or a contingent interest.
2. If it were to be vested interest then B’s brother would inheret
on the death of B, and A had no authority to cancel the
settlement to create an interest in favour of D and her
husband.
3. If it were to be a contingent interest then B’s brother would not
get any property as B would have got the property after the
death of A.
Supreme court held that A had retained some right in the
property for herself and had not relinquished the right
completely.
She had not created any absolute right in favour of B during
her life time. Therefore the right of B was not heritable to the
brother of B. thus the court dismissed the claim
Contingent interest and salient
features.
• Transfer depends on happening of an event
that is bound to happen, and on happening the
transferee gets a vested interest.
• Contingent interest is not an absolute transfer
when compared to a vested interest.
• The ownership still continues with the original
owner till the contingent happens.
• The transfer is not complete in case of
contingent interest.
Impact of section 19 and 22
• Section 19 deals with vested interest.
• Section 22 deals with the concept of transfer in
favour of a class of persons getting property on
attaining a particular age.
• Whether any such transfer would create vested
interest or not in respect of persons who have
not attained the said age.
• The section 22 envisages that it would not
create any vested interest in respect of those
persons who have not attained the specified
age.
• Amarnath creates a transfer of the property to the
grand children who have attained an age of 16 years.
• He had few grand children aged less than 16 years.
• Would they get any vested interest.
• In view of section 22 they will not get any vested
interest in respect of the property.
• The interest of the said grand children is dependent on
the fact of attaining an age of 16 years.
• If the transfer is in respect of people as and when they
attain an age of 16 years they get the right on attaining
the said age. So a contingent interest at one point of
time becomes a vested interest at a later point of time.
• If the transfer is not a continuous one to cover the
situation of as and when they attain the age of 16
years then they will not get the property as and when
they attain the age of 16 years. Hence there is no
contingent interest or much the less a vested interest.
: distinction between Contingent interest and
vested interest:
• Contingent interest not heritable, where as the
vested interest is heritable.
• Contingent interest can not be attached while
executing a decree, where as the vested
interest could be attached.
• A contingent interest may become a vested
interest but a vested interest can not become a
contingent interest, as the law favors vesting
and not divesting.
Transfer with condition.(Sec.25 to 30,33, 34)
• Where the transferor makes the existence of a right dependent
on happening or non happening of an event or a condition then
the transfer is said to be a transfer with condition.
• What type of conditions could be there or could not be there is
an important aspect.
• If a condition is imposed in such a manner to not to fulfill the
condition then such a condition is bad.
• If a condition is imposed in such a manner that it is forbidden by
law then the condition is bad.
• If a condition is imposed in fraudulent way then the condition is
bad.
• If a condition is imposed which in the opinion of the court is
immoral then the condition is bad.
• If a condition is imposed which in the opinion of the court is
against public policy then the condition is bad
• If a condition is bad then what shall happen, whether the
condition should be ignored or should the transfer be ignored
are the aspects which needs a look.
• Amarnath transfers a property to Billa.
• One of the condition is that Billa shall walk 100

miles with in one hour.
• Question whether the condition is good or bad.
• Answer: the condition imposed is of such a

nature that it can not be performed by any
human being in a natural course of events or
life. Therefore the said condition is bad on the
ground of impossibility.
• One of the condition is that Billa shall marry

Hema, the daughter of Chandrasekhar.
• On the date of transfer chandrashekara,s
daughter Hema was dead.

nature that it can not be performed in a natural
course of events or life. Therefore the said
condition is bad on the ground of impossibility.
• One of the condition is that Billa shall murder

Hema, the daughter of Chandrasekhar.

nature that it is forbidden by law. Hence the
condition is bad.
• One of the condition is that Billa shall divorce

Hema, the daughter of Chandrasekhar, whom
Billa had married.

nature that it is not to promote the public policy
and is to advance a situation of destabilizing the
family life. Therefore the said condition is bad.
Conditional transfer
.
Conditional transfer
Conditional
Condition
Condition subsequent.
limitation.
precedent
Permitted Non permitted permitted Non permitted

Condition precedent
• A condition which is needed to be followed to
have the transfer effected.
• If the said condition is not fulfilled then the
transfer will not take place.
• If a condition is of such nature which can not be
performed or forbidden by law or is considered
as against public policy or immoral by the court,
the transfer itself would be void.
• If a condition is imposed of such a nature that
its performance is not other wise hit by above
clause but is performed substantially then the
same is sufficient to say that it has been
fulfilled.
One of the condition is that Billa shall marry
Hema, the daughter of Chandrasekhar. By
taking consent of Damodara and Emberaman.
• Question what is the nature of condition.
Answer:- it is a condition precedent as the
marriage could take place with the consent of
Damodara and Emberaman.
• On the date of transfer Emberaman is dead.
Billa takes the approval of Damodara.
• Question whether the condition is fulfilled or not
Answer: the condition imposed is deemed to have
been fulfilled substantially. So there is a
substantial compliance.
One of the condition is that Billa shall marry Hema,
the daughter of Chandrasekhar. By taking consent of
Damodara and Emberaman.
Answer:- it is a condition precedent as the marriage
could take place with the consent of Damodara and
Emberaman.
Billa marries Hema, and there after goes to Damodara
and Emberaman to seek their consent.
Question whether the condition is fulfilled or not
Answer: the condition imposed is not fulfilled
substantially. So there is no substantial compliance.
Bene chand Vs Ekram Ahmed AIR 1926 All 181
• An agreement was there between A a widow
and B,C, and D.
• In the agreement it was provided that A should
not transfer the property without the consent of
B,C, and D.
• A transferred the property with the consent of B.
the other two were dead on the date of transfer.
• Question whether there is a substantial
compliance or not.
• The majority view of the court held that there
was no substantial compliance as majority
persons had not consented.
• Question whether the view of the court is correct?
• No.
• Minority view of Justice Boys said that the substantial
compliance shall be considered not with the numerical
majority but shall be considered in the back ground of
the reality as to whether the consent could be
obtained or not. Hence the true test is to find out the
situation whether the possibility is there or not. If it is
not possible then instead of defeating the vesting a
favorable approach shall be adopted.
• Next question of importance is that whether such a
condition be imposed in view of section 10 of Transfer
of property act. This aspect was not considered by the
court.
Could there be an alternate condition.
One of the condition is that Billa shall marry Hema,
the daughter of Chandrasekhar. By taking consent of
Damodara and Emberaman. Or he has to marry
saroja on her attaining 18 years.
Answer:- it is a condition precedent as the marriage
could take place with the consent of Damodara and
Emberaman. Alternatively it had provided that Billa
can marry Saroja on her attaining 18 years.
• Billa marries Saroja on her attaining 18 years.
• Question whether the condition is fulfilled or not
Answer: As there is an alternate option the condition
imposed is deemed to have been fulfilled
substantially. So there is a substantial compliance.
Can the court relieve the condition precedent and
give the property
• Under certain circumstances while the condition
subsequent could be relieved by the Court, it
can not relieve the condition Precedent.
• Lord Chancellor had said in Pop ham Vs Bam

field that “precedent conditions must be literally
performed and this court will never vest an
estate, where by reason of a condition
precedent, it will not vest in law” .
:Condition subsequent:
• A condition subsequent is one on happening of
an event the interest once vested is either
determined or shifted from the grantee to
another person.
• The principle is reflected in section 28 of the
transfer of property act.
• This provision of transfer of property act has
corresponding provision in section 131 of Indian
succession Act.
• As per section 28 the transfer of interest
created to accrue to the transferee with a
condition super added.
• The section 28 speaks about ulterior disposition and
not the ulterior interest.
• The condition so super added envisages that on
happening or non happening of an event what had
been vested would be divested in favour of another
person or may even get shifted to another person.
• The rule relating to the condition subsequent is
subject to the rule laid down in section 10,
12,21,22,23,24 and 25 of the transfer of property Act.
• A condition subsequent shall be fulfilled strictly if the
divesting has to take place.
• Section 29 contemplates that the ulterior disposition
contemplated in section 28 cannot take effect unless
the condition is strictly fulfilled.
• Amarnath had two wives. His first wife had a son. The
second wife was not having any son.
• Amarnath settled property to his second wife for life.
• He had made provision further that the property shall
go to the son of second wife if a son is born to her.
• Further a provision was made that in case if no son is
born to the second wife, then the property shall go to
the son of the first wife.
• Question:- What is the nature of interests of the sons
of the first wife and what is the consequence which
follows on account of the birth of a son to the second
wife.
• Answer:- the nature of interest of the son of the first
wife is a vested interest liable to be divested on
happening of the event. The said event is of an
uncertain nature. That is the birth of a son to the
second wife of Amarnath.
» Umesh chander Vs Zahoor Fatin. ILR1891 Cal 18
• Amarnath and the members of his family arrive at a
compromise. The family consists of lakshman and Rama,
• The terms of the compromise runs to the effect that lakshman
should have the estate for life and Rama shall be the owner in
full if lakshman survived Rama.
• If Lakshman did not survive Rama then the entire estate would
pass on to the lineal descendents of Rama.
• The estate shall go to Rama’s lineal descendents as per the
law of primogeniture.
• Question:
 what is the type of condition imposed.
 what types of interest which have been created.
• Answer:-
the condition imposed is that of condition subsequent, as the
same is imposed after the vesting has taken place and it is for
the purposes of divesting the interest which has already vested.
vested interest in favour of Rama subject to the condition that it
shall get divested on not happening of the death of Lakshman
before Rama.
Sunder bibi vs. Rajendra. ILR 1925 All 496.
Prior disposition will not be affected by invalidity of
ulterior disposition
• In case of a transfer if there are two stages to effect disposition
the fact that the later stage is invalid would not render the
earlier transfer invalid.
• Amarnath transfers a property to Billa for life.
• One of the condition is that Billa shall divorce Hema, the
daughter of Chandrasekhar, whom Billa had married.
• Answer: the condition imposed is of such a nature that it is not
to promote the public policy and is to advance a situation of
destabilizing the family life. Therefore the said condition is bad.
• Question No.2. whether Billa is entitled to the property for his
life time.
• Answer: Billa is entitled to the property as if the subsequent
condition is not there.
• Note: it is only the subsequent interest is bad and not the entire
transaction.
Saraju Balu Vs Jyothermayee.
1931(58) I.A.270. P.C
“A” gave a gift to “D”. It was an absolute gift. However
there were three conditions that the properties shall not
pass to the grantees daughters, they were not to be
transferred by gift except to a limited extent for religious
purposes and the transferor and his heirs shall have a
right of pre-emption on happening of certain specified
event. There was a defeasance clause that on the failure
of designated heirs, namely sons of transferee and their
sons successively. The transferee died without issue but
left a will leaving the properties to the respondent.
Appellant claimed to be the nearest relative and filed a
suit.
P.C.held:
The condition is bad and “D” could dispose of the
property as he desires.
Note: the gift is of an absolute nature so there can not be any condition that the heirs of donor could get back .
• Amarnath transfers his field to Billa.
• One of the condition is that Billa shall set fire to the
crops grown at the land of Zahir with in one year.
• If the said crops are not destroyed then the field would
get reverted to Amarnath.
• Billa after taking the property declines to set fire to the
crops to destroy the same.
• Question which arises is whether Amarnath is entitled
to have the property back as Billa failed to perform his
part of contract.
• Answer: the condition imposed by Amarnath to the
effect that the crops shall be destroyed is an illegal
act. So Billa could refuse to do it later. The transfer of
property to Billa will not get divested though the later
vesting is bad due to the fact that the condition was
bad.
In Re beard Reversionary General Securities Ltd Vs Hall
1908(1) Ch 383
• “A” gave a devise that B shall get the
property provided that B shall not join
Army or Navy. In case if B joins
Armed forces then the devise gets
cancelled.
• The court held:
• The condition is bad as opposed to
public policy. Hence “B” will get the
property notwithstanding the
condition.
• Amaranth transfers property to Hema. 3
• The said transfer was subject to the condition that she
should marry Bob at or before she attains an age of 21
years. In case if she fails to do so then to Yamini.
• Bob dies before Hema attains an age of 21 years.
• Question what is the position regarding getting of the
property either by Hema or Yamini.
Answer Yamini gets no interest in the property, Hema
gets the property as she could not perform the
obligation for her fault but as Bob died as a
consequence of the Natural event. The subsequent
condition which needs to be performed needs a strict
compliance. In the absence of the strict compliance of
the subsequent condition the question of condition to
dispossess subsequently can not be given effect.
• Section 30 corresponds with section 133 of the
succession act,
• Section 31, 32, 33 and 34 are the other sections
relating to the conditions to be imposed while there is
a transfer.
• Section 31 corresponds with sec 134 of Indian
Succession Act. This section deals with a contingency
of a condition super added that the transfer of interest
ceases to exist if a event of uncertain nature happens
or in case of specified uncertain event shall not
happen.
• Section 32 corresponds with section 135 of the I.S.A.
This envisages that the condition would be void for
uncertainty but the interest would not be void.
• These conditions may be in respect of residence,
marriage, employment, or any other nature of work.
• Amaranth bequeaths a fund to be paid to Hema on her attaining an age of 21or on
her marriage, which ever happens first.
• The another condition is to the effect that she should obtain the consent of the
executors of the will. Further it is stipulated that if Hema dies before the fund
becomes payable on the condition mentioned then the property shall go to Yamini as
a gift.
• The executor dies before Hema could attain the age of 21 years.
• Hema marries sampath without the consent of the Executor.
• Question: what is the position of Hema and Yamini with reference to the property.
Answer: The property would go to Hema absolutely and not to Yamini.
What is the reason: the property goes to Hema as already it had vested in her on the
death of Amaranth, to dispossess the said vesting the compliance of strict nature is
needed.
:Time for performance:
• If the condition imposed does not specify any time as
to when the condition shall be performed, and the
performance of the condition becomes impossible
then the said condition is bad and the transfer will not
be effected.
• Section 33 of the Act which corresponds with section
136 of the Succession Act.
• A transfer is made to Billa by Amaranth that, Billa shall
marry Sumathi and if not the properties shall go to
Hema.
• Billa marries Prema.
• His act of marrying Prema renders it impossible to
marry Sumathi.
• What shall happen to the transfer:
• The transfer is not bad. Bill will have the property and
Hema will not get the property.
Time for performance is specified but the element
of fraud had intervened.
• When a time is specified and the person is prevented by fraud
then section 34 of the transfer of property act will apply.
• This section is based on the principle that no person shall be
permitted to take benefit of fraud as practiced by him.
• The ultimate beneficiary if he practices fraud on the other
person who has to fulfill the condition, then as against the said
person the period would be extended.
• If the said person who had do so certain things for
performance, and due to the fraud the said thing is not
performed, it should be deemed that the performance has
taken place.
• The fraud has no sanctity in law. Where ever there is an
element of fraud the same goes to the root of the matter and
would vitiates the transaction. The person who intends to have
the benefit of the fraudulent act as practiced by him he would
not be entitled to the said benefit.
• This section corresponds with section 137 of the succession
act.
Conditional limitation.
• Conditional limitation is one where there would be a condition
that the transfer which had been effected once, would cease to
have effect on happening of an event the transfer ceases and
the same would be in favour of another.
• Conditional limitation is a kind of condition subsequent, but all
condition subsequent are not conditional limitation.
• In case of conditional limitation it limits the transfer on
happening of a condition.
• A combined reading of section 27,29, and 30 would indicate the
concept of conditional transfer.
• Under conditional transfer, transfer would be coupled with a
transfer to another person on failure of a prior disposition.
• Sec, 129 of the Succession Act deals with aspect.
• Conditional limitation is a condition of defeasance, that is it
terminates the interest of one and vests with another.
Elections
Section 35.
• This principle has got its roots in
English law though there is a
difference between the principles as
applied in English Courts and Indian
Courts.
• Section 35 of Transfer of Property Act
enumerates the said principles
relating to Elections
Elections
The basis of this doctrine is based on the rule
 that what one intends and expresses would be
acted upon.
Allegans contraria non est audeiendus– not to
blow hot and cold—with reference to the
transction.
‘Qui septet commodum, sentire debet et
onus’—he who derives the advantage shall take
the burden there of.
This was the rule in early part of 18th century.
This is on the principle that he who volunteers
to take a thing has to do things which he has to
do under the instrument.
Elections
• Modern requirement is
• * intention on the part of testator/transferor to
transfer certain object or thing.
• * the property shall not be of the transferor.
• * There should be certain benefit being given
to the true owner of the property.
• The foundation of this doctrine is that a
person taking the benefit of an instrument
must also bear the burden.
• He cannot take the benefit under a
document of transfer and cannot say that
he would not honor the liabilities arising
under the document.
• He cannot use document as a sword to
get the benefit and as a shield to prevent
the liabilities.
• This is based on the principle of
approbation and reprobation- which is an
extended limb of principle of estoppel.
• “Election” in law is left to ones own
free will to take or do one thing or
another, which he pleases.(Jacob)
• It is more frequently used to choose

between two rights that is one
regarding to derive certain things
while other not ready to loose an
already existing thing.
Elections
five Essential ingredients regarding application
• 1. The transferor should dispose of the property which
he has no right to transfer.
• 2. The transferor should confer a benefit out of his
own property on the owner of the property which he
profess to dispose of
• 3. Disposition of the property and he conferment of a
benefit on its owner should be parts of the same
transaction
• 4. The transferee put to an election should have an
independent proprietary right in the property dealt with
to his detriment by the transferor.
• 5. The beneficiary’s proprietary right should be such
that the disposition of the instrument can be perfected
if he waives his objection.
• Section 167 to 177 of Indian Succession act deals with the
concept of elections.
• Rules relating to Election are not contradictory to;
*** Hindu law
*** Mohammedan law
Hence the principle of election applicable to Hindus and
Mohammedans.
• The doctrine of election has universal application irrespective of
the religious denomination. It is more equity based.
• Principle of election not applicable to the government grants.
• Parties to an election are
**** transferor not as the owner of property.
**** refractory transferee
****disappointed transferee.
Ingredients of section 35
• Property transferred must belong to another.
• Transferor must profess to transfer such property
which does not belong to him.
• Confers benefits on the owner of the property which
he profess to transfer.
• Such a transfer should form a part of the same
transaction.
• If the transfer is not a part of the same transaction,
the section 35 of T.P.Act is not applicable.
• Primafacie every person is presumed to have
transferred only what is his and not what belongs to
others. “Profess” would mean purports, claims or
acknowledges. Therefore a person claims, or
acknowledges or purports to transfer a property
which is not his then this doctrine would apply.
Section 35
• This section consists of in all ten parts. They
could be stated as under;
1. General principle.
2. clause of reverting to the transferor.
3. Belief of transferor.
4. Indirect benefit.
5. Different capacity.
6. Acceptance.
7. Two years’ enjoyment.
8. Status quo cannot be restored.
9. Time for election.
10. Disability.
First rule of election under section
35.
• The benefit conferred by the instrument reverts to
the donor or his representatives, except under two
situations specified in the section.
• Indian rule is based on forfeiture while the English
rule is based on compensation.
• Illustration: “Ananda”gives to “Bhisma” by a

document rs.50000/ and to “Cadambi” a property of
Bhisma worth about 10000/.Bhisma refuses to
surrender the property to Cadambi. As per English
law, Bhisma as a refractory donor can take rs.50000
and compensate Cadambi the disappointed donee,
to an extent of 10000. but under Indian law the said
rs.50000 reverts to Ananda, because Bhisma
forfeits it and Ananda or his representative will have
to give Cadambi a sum of Rs.10000.
second rule of election under section 35
• While applying the second clause of the section is
whether the transferor has some right in the property
disposed of but was not absolutely entitled to it.
• It must be established that the transferor intended to transfer
more than he could.
• Illustration: Ananda owns a life interest in certain
property known as Vemalodge and grants it to Bhisma
and by the same instrument confers certain benefits to
candade who was entitled to the reversion. In such a
case candade cannot be made to elect, unless it is
shown thaat Ananda attempted to dispose of not
merely life interest which he was entitled to dispose of,
but also something more than the life interest. The
presumption in such case would that the transferor
only intended to dispose of what belonged to him,
though it is a rebuttable presumption.
Third and fourth rule of election under
section 35
• The section 184 and 185 of Indian succession
Act reflects these rules.
• A person taking no benefit directly under the

transaction but deriving it indirectly, need not
elect.
• A person who in one capacity takes a benefit

under the transaction may in another capacity
dissent there from.
Exception to the said four rules
• The exception to the said four rules is narrated
in the second part of section 35.
• The exception corresponds with sections 186 of

Indian succession act.
• Where a particular benefit is expressed to be

conferred on the owner of the property which
the transferor profess to transfer, if such owner
claims the property, he must relinquish the
particular benefit, but he is not bound to
relinquish any benefit confered upon him in the
same transaction.
Course open to a refractory
Donee.
• To confirm to part with the object which he has to transfer.
• To dissent to part with the object he has to transfer.
• Consequences to part with the property would render a
situation that he has to relinquish the benefit conferred on him.
• Illustration:- A is not the owner of the parker Pen. B is the owner
of the parker pen. A profess to transfer the said parker pen to C
under an instrument. Under the same instrument he transfers to
B wrist watch.
Option No.1.B has got an option to accept the wrist watch and
part with the parker pen..
Option No.2.B has got an option to not to part with the parker pen.
In case B opts for Option No.1, the B has to give away the pen to
C and get satisfied with the wrist watch.
In case B opts for option No.2, to not to give away the parker pen
then he can not accept the wrist watch.
Consequences in view of option no.2.
• The benefits derived from the transferor to not to take
effect.
• The benefit so relinquished shall revert to the
transferor.
• In case it the transferor is either dead, or not
available then the benefits should go to the heirs of
the legal heirs of the transferor as if no transaction
had taken place.
• Illustration:-A is not the owner of the parker Pen. B is
the owner of the parker pen. A profess to transfer the
said parker pen to C under an instrument. Under the
same instrument he transfers to B wrist watch.
.
B opts for option No.2, to not to give away the parker
pen then he can not accept the wrist watch. The wrist
watch would pass on to A or his legal heirs
Disappointed transferee entitled to a
charge of making good the amount or
value of the property attempted to be
transferred to him.
Non gratuitous or
gratuitous
for consideration.
Death of
transferor
Incapacity of
before the
transferor
election
before the
election
Cooper Vs. Cooper
1874 H.L 53
• “A” certain properties to trustees on the trust to sell it
after the life time of the widow of “A”
• The sale proceeds shall be held by the trustees for the
benefit of his children.
• The widow executed a deed directing the proceeds to
be divided in to three parts equally for three sons x, y,
and z. Subsequently she made a will and gave
properties to her eldest son x and a legacy to her
other sons y and z and to the sons of y.
• Y predeceased the testatrix “widow of A”
• The legacy in favor of y became inoperative as
will became operative long after the date of
execution.
• X brought an action to compel Z and sons of Y
to elect the claims under the deed of
appointment and under the will.
• Questions which arose are:
• A. whether the “widow of A” was the owner of
the property.
• B. whether the “widow of A” had power to
dispose of the property by will.
• C. whether the question of “Election” could be
exercised.
• House of Lords held:
• The main principle was never disputed, that
there was an obligation on him whom takes a
benefit under a will or other document to give
full effect to that instrument under which he
takes a benefit; and if it is found that, that
instrument purports to deal with some thing
which is beyond the power of the donee or
settlor to dispose of, but to which effect can be
given by the concurrence of him who receives
the benefit under the same instrument, the law
will impose on him who takes the benefit the
obligation of carrying the instrument in to full
• In this case the court went on the principle that
the author of an instrument intended to give
effect to every part of it and this principle is
described in cooper Vs. cooper that “ordinary
intent implied in every man who affects by a
legal instrument to dispose of property, that he
intends all that he has expressed”
• The court held that widow of A was not the

owner of he property, her attempt to dispose of
the property is no proper. The question of
exercising the option under the will would not
arise
Mode of election.
• The owner has to choose one out of two
inconsistent rights.
• The choice may be either express or by
implied conduct.
• Where it is by the express words then it
would be conclusive.
• Where it is by the implied conduct then
it would be understood by means of the
conduct of the parties.
Apportionment.
• Section 36 and 37 deals with the principle of
apportionment.
• The rule laid down under these sections are
almost similar to the principle laid down in
section 8 of the act.
• What is apportionment?
Apportionment means distribution of a fund
among the claimants, when there are more
number of claimants than one.
• The apportionment may be from the point of
time or may be from the point of extent.
Apportionment
Apportion means to divide or partition or assign
apportionment
Apportion
Time
section
36
Apportionment
• Apportionment from the point of time is reflected in section 36.
• Apportionment from the point of estate is reflected in section
37.
• Indian law is restricted in respect of transfers inter vivos.
• It is not applicable by the operation of law in view of specific
provision contained in section 2(d).
• The provisions of section 36 is not applicable in case of a
partition.
• The principle of section 36 applies in the absence of any
agreement or local usage.
• It is mainly in respect of rents,annuities,pensions,dividends, and
other periodical payments the provisions of section 36 applies.
• It is mainly in respect of shares in respect of a property
regarding which the payment used to be made and the same is
divided, then provisions of section 37 applies.
• There shall be a transfer of interest between transferor and
apportionment
• Illustration: Ananda is the owner of a house in
occupation of Raman. The said Raman is a tenant on
a monthly rent of 15ooo/. The said rent should be
paid on 5th day of every month as per the English
calendar. On 20th of may 2007 Anand enters in to a
contract to sell the house to rajoo. The parties enter in
to a contract. The said contract would be silent about
the payment of rent. In pursuant to the same on 10th
June 2007 a sale deed is executed by Ananda in
favour of rajoo. Raman continues to stay at the house.
In this case the buyer would be entitled to receive rent
from Raman from 10th of June onwards. Ananda would
be entitled to 1/3 rent while rajoo to 2/3 rent.
• This is a case regarding the apportionment on the
basis of time.
Apportionment
• Illustration: Ananda is the owner of a house in
occupation of Raman. The said Raman is a tenant
on a monthly rent of 15ooo/. The said rent should be
paid on 5th day of every month as per the English
calendar. On 20th of may 2007 Anand enters in to a
contract to sell half the portion of the house to rajoo.
A sale deed is executed by Ananda in favour of
rajoo. Raman continues to stay at the house in spite
of the notice of sale.
In this case the buyer would be entitled to receive rent
from Raman in respect of portion bought by him.
Ananda would be entitled to 1/2 rent while rajoo to
1/2 rent.
This is a case regarding the apportionment on the basis
of estate.
Conflict of rights
• The conflict of rights would arise when two or more persons
claim similar right in respect of an object or a thing.
• In a society where there is a shortage of land and high
demand for it, the moral values are being deteriorating
day by day the people of unscrupulous nature try to
over take one another.
• Conflict of rights do arise in the society when a person
who had a limited right sells or mortgages the
property, transfers the property in a fraudulent manner,
gives an impression to others that he has the right in
respect of the said property and passes on to another,
does certain acts which he ought to have performed
has not been performed in full, or does any thing when
the subject matter of the property is in dispute and so
on so forth.
Conflict of rights
‘
Conflict of rights
Lis
priority Limited power Holding Fradulent
improvement pendence transfer
To transfer out
Payment
Transfer of To
Rt under Holders
Rt of persons
Power to revoke Insurance With
Holding
policy defective
maintenance
title
Limited power to transfer.
• Section 38 of transfer of property act deals with this aspect.
• The scope of this section is very much limited and is not
applicable to the situation where the section 41 dealing with
ostensible owners applies.
• The scope of this section is very much limited and is not
applicable to the situation where the section 64 of Trust Act
applies.
• This section applies with transfers by Hindu widow, or a
manage of a Hindu joint family or a guardian of a minor who is
authorised to dispose of the property under certain
circumstances.
• When such a person transfers the Immovable property for
1.consideration alleging that the circumstance exists to transfer.
• 2.The transferee if he has made reasonable enquiry regarding
the existence of such a circumstance and has acted in a good
faith.
Hanoomanpersaud Pandey Vs B.M.Koonwaeree
1856(6) Moors Appeal 393
• A case decided prior to the transfer of property act
was enacted.
• The privy council decided the matter with reference to
principle of Hindu law.
• Manager of an infant executed a mortgage. As per hindu law a
manager of a minor had a limited qualified power regarding the
disposal of the immovable property.
• The manager could do so for the minor’s need or for
the benefit of the estate.
• The privy council held that the lender is bound to
inquire in to the necessity of loan and satisfy himself
as to whether the there exists necessity.
• The principle laid down in the said ruling is embodied
in this section.
• The provision contemplated in section applies
only in respect of transfers of immovable
properties and not not of movable property.
• Mainly it applies in respect of :-
Hindu widow, or a limited manager under Hindu
law.
Manager of a Hindu joint family.
A Hindu father.
Defacto or dejure guardian of a Hindu minor.
Executor under a will made by a Hindu not
governed under Indian succession act.
Mahant or a shebait.
Guardian of a minor appointed by a court.
• The section 38 not applicable in case of a gift.
Hence a donee from a limited owner can not set
up this plea.
• Burden of proof on the transferee to show that he had
exercised reasonable care as a prudent person.
• Not applicable in respect of a transfer effected
by law, but applies only in respect of the
transfer made in pursuance to the contract of
the parties.
• Should have acted in a good faith and not with
malafides I.e any sort of collusion between the
transferor and transferee.
• Read AIR 1957 A.P.776, 1986(2) Cal.341, AIR 1971 SC 1028,
AIR 1927 PC 121.,
RANI VS SHANTA BALA.air 1971 sc 1028
• Sashi bhushan had a wife and a daughter.
Sarala bala was the daughter. The parties were
governed by dayabhaga school. Wife of Sashi
bhushan predeceased him. Sashi bhushan died
in 1920. So sarala inherited the father. Sarala’s
husband Kunju died in 1937. Sarala and Kunju
had two sons and 4 daughters. 2 daughters had
got married during the life time of kunju. Kunju
had not left behind any property other than a
house. He was a man of humble walk of life. At
the time of death of Kunju his sons govinda and
Tulsi were minors.
RANI VS SHANTA BALA.air 1971 sc 1028
• On 22.10.1941 sarala executed a deed to sell a portion of the
property for rs.1100 in favour of chapalabala. In the agreement
sarala had a recital that she had to sell the portion as she had a
financial need. Few months later sarala did not execute the sale
deed. Few days later sarala executed a sale deed for rs.1500/
She died during 1950. During 1953 govinda and tusasi filed a
suit to the effect that sale deed executed by sarala does not
bind them. Suit was resisted.
• Trial court held that there was a legal necessity
• High court in appeal did not agree with the trial court.
• The matter went to supreme court. The supreme
court held that the legal necessity does not mean
actual compulsion. It means the pressure on the
estate which in law may be regarded as serious and
sufficient.
Object and scope of section 38
• To protect the bonafide purchaser.who had
no notice.
• To protect other persons affected by

transfer scope of the section is limited or
restricted.
Difference between section 38
and 41
Section 38 is a Section 41 a mere

deeming provision recital if is made that
regarding the the transferee has
existence of a made enquiry is not
circumstance if a sufficient.
recital is made that the
transferee has made
enquiry.
• AIR 1949 All 501,.
• AIR 1983 Ker 178.
• AIR 1927 P.C. 121
• AIR 1967S.C. 547
• AIR 1924 All 939
• AIR 1927 P.C 37
• AIR 1985 Mad 372
• AIR 1988 Ori 136.
• AIR 1971 S.C.776
Conclusion
• The overall effect of section 38 of the Act could be summarized
to the effect that a bonafide purchaser who has put forth efforts
to know the details regarding the property at the time of the sale
shall be protected. The degree of enquiry should not be of a
very high degree or standard as the alienee would not be
knowing all the facts. What the alienee has to show is that he
made bonafide inquiry and ascertained the facts. If that is done
the fiction as per law would go in favour of the transferee. The
transferee alienee need not prove to the last straw that the
condition which was needed had happened. In fact the sprit of
section 38 recognizes the principle as laid down in Hanooman
persad’s case. So what is needed is that of a reasonable
precautions and not a precaution and not a precaution which
would be taken by a person sitting on a clap ham omnibus.
Transfer where a third person is involved.
• Third person shall have a right to
 receive maintenance,
 Provisions for advancement,
 Marriage,
From the profits of the immovable property.
• Such property is transferred with notice to the transferee or
where the transfer is gratuitous.
• The third party shall have a right to claim such a maintenance
from such a transferee.
 If the transfer is for consideration and without notice of the right
then the transferee is not bound regarding such a right.
 Earlier to 1929, the third party shall prove that the transfer was
fraudulent but after 1929, that is not the situation.
 Applies only in respect of immovable properties and not
movables.
History of section 39.
• Lakshman Ramachandra Joshi Vs Satyabhama Bai.
1877(2) Bom 494.
• A Hindu widow sued her husbands brother, a sole

surviving member of the family to pay maintenance
and the purchaser of the family property from the
brother.
• The court held that if the transferor wanted to defraud

the right of maintenance and the transferee was a
party to such a fraud, he would not be protected if he
knew that there was a claim of maintenance.
Provision for advancement.
provision of advancement has no reference to
the common usage in India but has special
reference to the English law.
Advancement is a payment to persons who are
presumably entitled to have a vested contingent
interest in an estate or legacy before the time
fixed by the will for their obtaining the absolute
interest in a portion or whole of that to which
they would be entitled.
Purchase of a land by the father in the name of
the daughter or some one is an advancement.
This view at present in India can not be
considered in view of Benami prohibition Act.
• “A” has a sister in law “B”. B is the wife of A’s brother.
B is a widow. As per Hindu law with reference to co-
parcenary property prior to 1956, B had a right to
claim maintenance. A transferred the property “X” to
“B” in lieu of her right to claim maintenance. A also
agreed with B that if B is dispossessed of the X
property, then he would transfer an equal extent of
land either of K.L.M.N.O.P., as per the choice of B.
• A sold the lands K.L.M.N.O.P, to Z.
• No notice had been given to Z about the agreement
between A and B.
• Can B claim maintenance from the income of
K.L.M.N.O.P
• Answer:- No., as Z is a bonafide purchaser with out
notice.
“A” has a sister in law “B”. B is the wife of A’s brother. B
is a widow. As per Hindu law with reference to co-
parcenary property prior to 1956, B had a right to
claim maintenance. A transferred the property “X” to
“B” in lieu of her right to claim maintenance. A also
agreed with B that if B is dispossessed of the X
property, then he would transfer an equal extent of
land either of K.L.M.N.O.P., as per the choice of B.
• A sold the lands K.L.M.N.O.P, to Z.
• Notice had been given to Z about the agreement
between A and B.
K.L.M.N.O.P
• Answer:- yes., as Z had due notice.
• “A” has a sister in law “B”. B is the wife of A’s
brother. B is a widow. As per Hindu law with
reference to co-parcenary property prior to
1956, B had a right to claim maintenance. A
transferred the property “X” to “B” in lieu of her
right to claim maintenance. A also agreed with
B that if B is dispossessed of the X property,
then he would transfer an equal extent of land
either of K.L.M.N.O.P., as per the choice of B.
• A gifted the lands K.L.M.N.O.P, to Z.
K.L.M.N.O.P
• Answer:- yes., as Z is a gratuitous transferee.
Exception to the rule of section 39
• Family debts takes priority over the claim for
maintenance.
• Ramaswamy sold family property to Krishna Ayer in
order to liquidate the family debt. Krishna Ayer
purchased it with due notice of claim of the widow of
the brother of Ramaswamy for maintenance out of the
property. The widow wanted to enforce the claim
towards the maintenance against the property at the
hands of Krishna Ayer, can she be permitted to do so?
• Answer No. the binding debts of the family takes
priority over the claim of the widow to have
maintenance.
Sidde Gowda Vs Lakkamma. AIR1981 Knt. 24
• P was the wife of D. She filed a suit against her
husband seeking maintenance and a charge being
created on the family house of the husband regarding
the maintenance amount. There after the institution of
the suit D transferred the house to TPR. The said TPR
had not paid any consideration to D in respect of the
property. TPR contended that D had some other
properties and the charge should be confined to such
properties only.
• The court held that the maintenance could be charged
upon house also. The husband having some other
properties is immaterial.
Section 39 and its philosophy.
• Section 28 of Hindu Adoptions and maintenance
Act 1956 makes a similar provisions in respect
of persons mentioned at section 2 of that Act
• The principle behind this section is to afford

protection to an innocent transferee for
consideration.
• The section also protects the interest of the

person who has a third party claim.
Section 40
• Burden of obligation imposing restriction of use of
land.
• Obligation annexed to ownership but not amounting to
interest or easement
• Then such an obligation may be enforced against the
transferee if the (a) the transferee with notice thereof,
(b) gratuitous transferee
• Exception; the clause would not apply in respect of a
transferee who has paid the consideration and had no
notice of the said right or obligation.
• Note: section 40 has no application to the Rights
relating to easements.
Section 40
• Consists of two parts.
• Part 1 applies in respect of negative aspects
• Part 2 applies in respect of positive aspects.
• The said section envisages that the right must be one
of restrain of enjoyment.
• Applies in respect of the condition running with land
• Personal contracts even though it may have reference
to the property binding between the parties there to
and their privies though is the general rule it is not
applicable in respect of transactions in pursuance to
which the property goes to the other person.
• Amaranth contracts to sell the land to Kamala with in 3 months
from the date of agreement.
• The said agreement was entered in to on 20th of December
2007.
• On 4th of January 2008 he sells the said land to Bheema.
• Bheema before purchasing the property had caused a notice to
public about the said sale transaction.
• Kamala had filed he statement with Bheema that she had an
interest in respect of the property in pursuance to the
agreement dated 20th December 2007.
• After sale transaction Kamala wanted to enforce he right
against Amaranth and Bheema.
• Question. Could Kamala do so
• yes
• Question to what extent she could do so.
• As against Bheema to the similar to the extent as she could
have as against Amaranth. .
• Amarnath by deed of sale sold the property that is one of the
shop among three to Bheema.
• The condition was that Bheema shall not construct Balcony to
the shop. Amarnath also gives an undertaking that he would not
construct balcony in respect of two shops which have been
retained by him.
• Subsequently Amarnath sold one of the shop to Karupa.
• Karupa wanted to remodel the shop and tried to construct a
balcony.
• Bheema sued Karupa and wanted for an injunction to restrain
Karupa to not to construct the Balcony.
• Question
• What is the nature of right claimed by Bheema
• The nature of right is that of an easement.
• Could Bheema have any relief
• No. as the right is in the nature of an easement he can not have
is what the court said. This falls under the second category
Holding out.
• Section 41 and 43 of t.p.act covers the field of holding
out. Ramanatha Ayer in the law lexicon defines
“holding out would mean, holding a women to be the
wife of another” would mean that the perpetrated
husband by conduct leads the world to believe that
parties are living and associating themselves together
as husband and wife.
What is holding out doctrine?
Basically holding out means that a person gives to the
world at large certain thing when in reality it is not so.
On account of the conduct the people at large would
believe the imaginary as the real, while real it self
would not be known at all.
Holding out
Extend this principle in respect of the properties:-
The real owner of the property either expressly
or impliedly by conduct and language conducts
to lead the world at large to believe that another
person is the owner of the property. In such a
situation, the person who is exposed to the
world at large would be known as ostensible
owner. This part of the world is in fact partly
defined in the section itself, as with the consent
of, express or implied, the person interested in
the property.
Section 41
• This is based on the principle of equity. One should
not be permitted to blow hot and cold from the same
trumpet.
• When an ostensible owner transfers the property to a
transferee for consideration, the transaction is not
voidable at the instance of the real owner
subsequently.
• The transaction is not voidable applies only in such
cases where the transferee before the transfer in his
favour has made proper inquiry, and has acted in a
good faith.
Ingredients of section 41 are that the transferee should
have taken a reasonable care to ascertain that the
transferor had power to make the transfer. He has
acted in a good faith.
Lachman Vs Kalicharan.1873(19)W.R. 192
• “A” during his life time held out his wife “W” to
be the owner of a property “x” situated at
Rampur, as a property purchased by her out of
streedhan. In reality it was not so. The property
was purchased out of the funds of “A”.
• After the death of “A”, the “w” sold the said
property to “C”, who purchased believing that
the said property was a streedhan property.
• After some time “Z” the son of “A” filed a suit
against the purchasers contending that the
property in reality belonged “A” and not for “W”.
The sale deed executed by W is not a valid
document. The same is liable to be set aside.
Lachman Vs Kalicharan.1873(19)W.R.
192
• Sir Barnes peacock said:- “ it appears to
their lordships that there was a
misrepresentation by the father in following
the property to be taken by wife under a
deed of sale, representing the purchase
money was her streedan and in all his acts,
both public and private during the life time
that his wife is the owner of the property.
After that representation the heirs of the
father cannot be permitted to say contrary”
Nemoplus puris adalium transferee
protest quam ipsa habit” and Nemo dat
qui non habit
• The general rule is that no one can transfer a
better title than what he has as stated in the
Maxim “nemoplus puris adalium transferee
protest quam ipsa habit” – no man can transfer
a right or title greater than what he himself has,
and “Nemo dat qui non habit”– he gives not
who hath not.
• Section 41 is an exception to the said maxims.
Ram coomar Vs Maqueens 1872 I.A.supplement 40 (PC)
• Mac Donald purchased certain properties, but the sale deed
was obtained in the name of his mistress Banoo. Banoo was a
benamidar. “X” purchased the property from Banoo, under an
impression that the property which he was going to purchase
belonged to her. The purchaser took possession of the property
from Banoo. At that time Mac Donald did not raise any
objection. He remained silent. Some time later Mac Donald
executed a will and bequeathed the property in favour of “P”.
Soon after the death of Mac Donald “P” on the basis of the will
of Mac Donald claimed the property. “X” resisted the suit by
contending that he is a bonafide purchaser for value paid. The
privy counsel held that Banoo who looked like a real owner is
an ostensible owner. She made transfer for consideration.
Purchaser purchased the property with due diligence. Mac
Donald did not object. To protest the deal. So P can not be
allowed to contest the deed.
Who can not be the ostensible
owners.
• An agent or a Manager.
• Menial servant in occupation of a property.
• Mortgagor with limited interest of ownership.
• Trustee or a manager of an idol since lord
cannot give consent.
• Donor who has not retained the power to
revoke.
• Guardian or a person having a fiduciary
character.
• Action sale.
Kashmiri Singh Vs Panchayat samithi. 2004(6) scc 207
• X a purchase knew that the land purchased by him
stood in the name of Panchayat in the revenue
records. He purchased the said land from the State
Government as represented by the Tahasildar. A
dispute arose in respect of the said land as the
Panchayat contended that the property belonged to it.
A writ petition was filed. W.P., was dismissed. An
appeal was filed before the Supreme court. A plea
was put forth that the provisions of section 41 would
come to the rescue of the writ petitioner.
• Justice Ashok Bhan considerd the case and held that
the transferee had not exercised due diligence to find
out whether the land was a Government land or not.
When the revenue records showed the name of
panchayat. The Govt. did not held out the land as an
ostensible owner.
• Section 27 of sale of goods Act= section 41 of
T.P.Act.
• Read other cases:- AIR 1963 S.C.1917
GURUBAKSHA SINGH VS NILLA SINGH.,
• AIR 1965 S.C.295 Suraj Ratan Vs Azambad
Tea.
• AIR 1982 S.C. 102 controller of estate Vs Alok
mitra,.
• AIR 1991 Knt 273 S.M.SHAH VS syed Abdul
Rasheed.
Section 43.
• Second limb of principle of holding out.
• This involves the principle of feeding the grant

by estoppels.
• This is based on the principle of equity.
• One who makes other to do a thing believing on

the words can not be allowed to retrieve the
words to the disadvantage of the another.
Ten commandments of section 43
• Transferor makes a representation to the effect that he is
competent to transfer a particular immovable property.
• The said representation was erroneous or fraudulent.
• Representation should not be true.
• Transferee believes or is made to believe the representation is
true or correct and the transferor is competent to transfer.
• Transfer for consideration.
• Transferee acts on the representation and enters in to a
contract.
• Transferor subsequently acquires competency to transfer the
same property.
• The contract subsists.
• The property should continue with transferee.
• Transferee exercises option to signify that he would go ahead
with the contract.
Rule of section 43 does not apply
• If no representation by transferor.
• If no fraud or misrepresentation or erroneous
representation.
• Transferee knows the defect.
• Transfer is prohibited in law.
• Transfer is without consideration.
• The transferor does not acquire the interest
• If contract is not subsisting.
Feeding the grant by estoppels.
• Compel a person to perform when a
performance becomes possible.
• This doctrine applies regarding sale, mortgage,

lease, charge, exchange.
• This doctrine does not apply regarding court

sale, part performance, forbidden by law,
transfer by a lunatic or a minor, gift.
Spes succession in and section 6(a)
and rule of section 43
Rule of substantive law. Rule of estoppel
Fraud or misrepresentation Fraud or misrepresentation

by transferor is not a must by transferor a must
Prohibition applies to all Prohibition applies not to all

kinds of transfers kinds of transfers
irrespective of consideration is a must..
consideration..
Transfer is void Transfer is voidable
Applies for immovable and Applies for immovable

movables.
Jumma Masjid Mercara Vs K.Devaiah,AIR 1962 S.C 847
• A Hindu joint family had 3 brothers and a

sister. Brother No.1 and 2 had W1 and W2 as
wives respectively, while brother no.3 had a
son A, but not a wife. Sister had a daughter
who in turn a son B and a daughter C.
• During 1900, A collective mortgage was
executed by ABC and it was in favour of X
and was entitled to enjoy property till 1920.
• Widows of brother no.1 and 2 had life interest,
while ABC had a reversionary right after the
death of w1 and w2.
• While transferring the property ABC did not mention
W2 was alive and transferred the property to X. Later
X filed a suit for possession. W2 resisted the suit.
• Trial court and the court of the Judicial Commissioner
said that the plaintiffs were not entitled to possession.
• When the r.s.a., was pending w2 died. W2 had
executed a will in favour of Jamma Masjid. On the
death of w2 ABC while claimed the property as
reversiones Masjid claimed as a legatee.
• Masjid conteded that section 43(a) should be read
subject to section 6(a). The court did not agree with
the said view and laid down the rules which
differentiated between section 6(a) and 43.
• Section 43 3mbodies a rule of estoppel and enacts
that a person who makes a representation shall not
be heard to allege to the contrary as against the
person who acts on such representation.
Jumma Masjid Mercara Vs K.Devaiah,AIR 1962
S.C 847
• It is immaterial whether the transferor acts

bonafide or fraudulently in making
representation.
• It is only material to find out as to whether the

transferee has been misled.
• This ruling is affirmed in 1994(4) S.C.C 730.

Section 41 and 43
Section 41 provides that a Transferee to whom the
transfer by a owner cannot transferor has made
be avoided on the ground fraudulent or erroneous
that transferor was not representation to lay hold
authorised to make it. at his option of any interest
which the transferor may
acquire.
This rule is made subject to Transferee has believed
express provision that the representation made by
transferee shall take the transferor and has
reasonable care to acted on the said basis.
ascertain that the transferor
had power to make
transfer.
To act in good faith Acted in a good faith,
Illustrations section 43
• Janhavi a Hindu was the wife of Muralidhara. Muralidhara had
certain properties at city of jamatmal. Muralidhara was not to
be seen since five years. Janhavi, in order to eke out her lively
hood mortgaged the property to Mohan. As on the date of
mortgage the transaction is invalid as the presumption under
law cannot be drawn as to the death of Muralidhara.
• Mohan files a suit in respect of the said mortgaged property.

The said suit was filed seven years after the disappearance of
Muralidhara.
• As per law Muralidhara could be treated as dead. So janhavi

would be treated as a widow of Muralidhara.
• Mortgage as on the date of suit is valid as the where about of

Muralidhara was not known and Janhavi had acquired the right
of her husband.
Illustrations section 43
• Ramachandra, Arjuna, and Kiran were brothers

being the sons of Kiraatharjuna. They had equal
share in respect of the palaces situated at
Sandur. Ramachandra, and Arjuna creates a
lease in respect of that property in favour of
Armuga, to the exclusion of , Kiran. Some time
later Kiran dies bequeathing his right in favour of
Ramachandra and Arjun. Armuga’s title as a
lessee in respect of whole properties would be
valid, as they get it perfected.
Section 43
• section 43 not apply for a transfer not for
consideration.
• Not to apply in respect of gift.
• Not to apply in respect of invalid transfer as
forbidden by law.
• Not to apply in respect of invalid transfer as opposed
to public policy.
• Not to apply in respect of invalid transfer as made by
a minor or a lunatic.
• To have the benefit of this section two important
conditions which shall exist are
a. Contract of Transfer was made by a person having
competency to enter in to a contract.
b. The contract would be subsisting when the claim for
the recovery was made.
Rule regarding priority.
• Qui prior est tempore potior est jure.
• He has the better title who is first in the point of time.
• Transferor of same property having once conveyed cannot
convey it once again.
• The rule of priority in section applies only in respect of
• The rights must have been created by same person and not by
two different persons. However a legal representative or an
agent cannot be considered as different persons and should be
treated as same person
• The rights must have been created by transfer in respect of
same immovable properties.
• The rights must have been created in different times.
• In the absence of any general contract or reservation, the
previously created right will prevail over the later created right.
Priority.
• ‘A’ Executes a sale deed in favour of B on
1.1.1999 in respect of his house “Roshanara”.
On 10.3.1999 A executes a sale deed in favour
of ‘C’ in respect of the same house
“Roshanara”.
• The sale deed executed by A in favour of B is
prior in the point of time.
• The sale deed executed by A in favour of B is in
respect of the same immovable property.
• In view of the rule of priority the sale deed
executed in favour of B would prevail over the
sale deed executed in favour of C.
Priority and rule regarding registration
• ‘A’ Executes a sale deed in favour of B on 11.3.1999 in
respect of his house “Roshanara”. The sale deed is
registered in 11.3.1999 at 10.30 am.
• On 11.3.1999 A executes a sale deed and registers in
favour of ‘C’ in respect of the same house
“Roshanara”at 10.40 am.
• Question which of the sale deed among two would
prevail?
• Answer:. The sale deed executed by A in favour of B is
in respect of the same immovable property.
• The sale deed executed by A in favour of B is prior in
the point of time and is registered earlier.
• In view of the rule of priority and read with section 47
of the Registration Act , the sale deed executed in
favour of B would prevail over the sale deed executed
in favour of C.
Priority and rule regarding registration.
• ‘A’ Executes a sale deed in favour of B on 1.1.1999 in
respect of his house “Roshanara”. The sale deed is
registered in 11.3.1999.
• On 10.3.1999 A executes a sale deed and registers in
favour of ‘C’ in respect of the same house
“Roshanara”.
• Question which of the sale deed among two would
prevail?
• Answer:. The sale deed executed by A in favour of B is
in respect of the same immovable property.
• The sale deed executed by A in favour of B is prior in
the point of time though is registered subsequently.
• In view of the rule of priority and read with section 47
of the Registration Act , the sale deed executed in
favour of B would prevail over the sale deed executed
in favour of C.
Priority and Mortgages.
• Section 48 while deals in general regarding the
principle of Priority, the Sections 78 and 79 are
specifically with reference to that of Mortgages.
• Section 78 while dealing with the concept of

postponement of prior mortgagee and Section
79 envisages with reference to mortgage to
secure uncertain amount when maximum is
expressed.
• Section 93 envisages that the concept of

tacking is prohibited has got a bearing on the
principle of priority.
Postponement of Prior Mortgage
• Priority in respect of successive Mortgages while is
spelled out in section 48 on the basis of qui prior est
tempore potior est jure, the Section 78 contemplates
that where a prior mortgage is there the prior
mortgagee will have a right to claim over the right of
the subsequent mortgagee.
• The prior mortgagee though has a priority over the
claim of the subsequent mortgagee but however the
element of fraud, misrepresentation or gross neglect
as practiced by the prior mortgagee in inducing a
person to advance money on the security of the
mortgaged property the position of the prior
mortgagee would be relegated to that of a subsequent
mortgagee.
• The rule in section 78 is an exception to the general
rule laid down in Section 48.
Murtazai Begum Vs Dildar. AIR 1930 Oudh 129
• “X” mortgaged a share in village “M” to “Y” during
1917.
• The mortgage deed contained a clause that if “X” is
dispossessed of any part of that share by other heirs,
the mortgage shall operate as a mortgage of a share
in the village “N”. During 1918, “X” mortgaged a share
in village “N” to “Z”. During 1922 “X” was
dispossessed of his part in the village by co-heirs. The
contingent mortgage of village “N” did not vest till
1922.
• Question how to work out the rights of “Y” and “Z”.
The court held that:- “Z”’s mortgagee had priority
over the mortgagee of “Y”.
Lloyds Bank Ltd Vs Guzdar & Co.AIR 1930 CAL 22
• G deposited the title deeds with bank N to avail over draft. G
approached the Bank manager to return the document to
facilitate him to sell the property for a higher value, as the
prospective buyers if they come to know that there is a liability
then they may not pay the better price.
• The manager of the bank in normal course should not return
the documents and should insist that the buyer should visit the
bank and scrutinize them. Though a duty was there the
manager returned the documents to G.
• G took those documents and borrowed the money from bank L
by depositing the said documents by falsely representing that
there is no encumbrance on the property.
• Question: What is the position of the Bank L vis a vis the Bank
N.
• Answer:- The mortgage of bank L had a priority on the
mortgage of Bank N in view of the fact that the Manager of
Bank N had acted in a gross negligent manner.
Priority would not effect the liability
of Mortgagor
• Priority would not effect the liability of
Mortgagor
• The Priority would work out about the

rights of the successive mortgagee.
• The Priority would not work out about

the rights of the subsequent
purchasers. The Priority would be lost
by the res judicata.
Priority as to subsequent advances
• Section 79 deals with the subsequent advances

when being made due to a subsequent
mortgage.
• Section 79 acts an exception to the rule of
priority.
• Note of caution to apply the rule are:-
Whether the subsequent mortgagee took with
notice of the prior mortgage.
Whether the prior mortgage fixes any specific
maximum amount to be secured.
Priority and exceptions
• Section 50 of the registration Act, where a
subsequently registered deed will have a
priority over a prior unregistered deed where
the registration is optional. This rule is of
course subject to the doctrine of Notice. This
exception has lost much of its significance in
view of the amendment to section 54 and 59 of
transfer of property Act.
• Priority is forfeited by fraud misrepresentation

or gross negligence..
Transfer of Right under Insurance policy.
• Section 49 of Transfer of property act deals with
this principle.
• Transfer of immovable property for
consideration,. This would apply only in respect
of lease, mortgage or exchange but not a gift.
• As on the date of transfer the said immovable
property is insured as against the loss or
damage by fire then the transferee can have
the benefit.
• This section should be read along with section
135 of the T.P.Act.
• A purchaser can not claim money from the
insurance company.
Rent paid to a defective holder.
• A person who has to pay rent or profit has paid the
same.
• The payment should be made with a good faith and
intention, that is in other words in a bonafide manner.
• The payment should have been received by a person
having defective title in respect of the said immovable
property.
• It should appear later that the person who had
received the amount had no title to receive it.
• The tenant/lessee if he satisfies the above
requirements then he would be protected.
• This applies with reference to the rent and not the
money paid in advance, as in the later case it would
be treated as a loan.
• Section 50 of T.P.Act
Illustrations
• A has a right to land and other property. He lets
it to B and then transfers to C. B not knowing
the transfer pays rent to A. A also accepts the
same with out a demur. Here the B is protected.
C can not claim the a said amount once again.
• A has a right to land and other property. He lets
it to B and then transfers to C. B knowing the
transfer pays rent to A. A also accepts the same
with out a demur. Here the B is not protected. C
can claim the a said amount once again as the
action of B was not in good faith.
Illustrations
• A has a right to land and other property. He
lets it to B and then transfers to C. B pays rent
to D an agent of A. D also accepts the same
with out a demur. Here the B is protected. C
can not claim the a said amount once again.
• A has a right to land and other property. He

lets it to B and then transfers to C. B pays rent
to D a total stranger .D also accepts the same
with out a demur. Here the B is not protected.
C can claim the a said amount once again.
Question
• A leased his property to B, and there after mortgaged
it to C. As per the terms of the mortgage C was
entitled to recover the rent from B. C after the
execution of deed informed that he was entitled to
recover the rent from B in pursuance to the deed. In
the meanwhile the property was sold to D in
execution of a decree against the mortgagor.D gave
notice to B that mortgage loan to C is paid and the
rent should be paid to him. B without making any
enquiry regarding the statement of D make payment
to D. in reality the mortgage loan to C is not cleared.
How do you resolve the dispute.
• answer:- the B had not acted in a good faith, so he is
not entitled to any protection.
Improvements by bonafide holders
• This rule has a great antiquity, recognized both in
Roman Civil law and Common law of England.
• This rule is based more on equity.
• Transferee as a bonafide holder improves immovable
property.
• Improvement is made in a good faith that he is
absolutely entitled to do so.
• Subsequently he is evicted from the property by any
person having better title.
• If the above noted things are there then the transferee can ask
the person who evicted him to pay the market value of the
improvement.
• The transferee can also ask the person who evicted him to sell
the property to him for the market value thereof .
• Section 51 of T.P.Act.
Valuation of the improvement.
• The valuation shall be estimated at the time of
eviction.
• The amount so estimated shall be paid or

secured.
• If the transferee had planted or sown on the

property any crop on the property when he has
been evicted then the transferee could have a
free ingress and egress to collect the said
crops.
Harischandra Heggade Vs State of Karnataka
2004(9) SCC 780
• Certain lands granted in favour of the members of
Schedule caste and Schedule tribes by the
Government had contained non alienable clause. One
of the member of the schedule caste sold the land to a
person not belonging to Schedule caste. The
purchaser invested money and developed the land.
• During 1979 the state of Karnataka enacted a law to
the effect that the lands granted to the members of
Schedule caste and Schedule tribes shall not be
alienated and any alienation shall be treated as null
and void. The law also envisaged that the said land
shall be restored to the original owner.
Harischandra Heggade Vs State of Karnataka
• Section 51 provides that a bonafide

purchaser under defective title is entitled to
get the value of the improvements made
therein. This provision is applicable only
when a transfer is inter vivo and not made by
the operation of law. It has no application
when there is a violation of law. It has no
application when there is a violation of a
grant and the restoration to the grantee, even
if the transfer if the transfer is prior to the law
coming in to force.
Kannan Vs Khatoon Bi. 2005(2) KCCR 821
• The defendant made certain construction on the land
belonging to the plaintiff.
• The plaintiff was declared to be the owner.
• The plaintiff had sought for a M.I, that the construction
put up by the defendant should be removed.
• The court held that the order for demolition would be a
sadistic approach and the same shall not be resorted
to by invoking the 1st provision of section 51 but by
invoking second provision the plaintiff shall be allowed
to purchase the super structure for the market value
on the date of execution. In the event of failure of the
plaintiff buying the said superstructure then the
defendant shall be given option tom buy the land for
the market value on the date of execution.
Ramsden vs. Dyson
• If a stranger begins to build on my land
supposing it to be his own and I (the real
owner) perceiving his mistake, abstain from
setting him right, and leave him to persevere
in his error, a court of equity will not allow me
afterwards to. assert my title to the land, on
which he has expended money on the
supposition, that the land was his own. It
considers that when I saw the mistake in
which he had fallen, it was my duty to be
active and to state his adverse title; and that it
would be dishonest in me to remain willfully
passive on such an occasion in order
afterwards to profit by the mistake which I
might have prevented.
R.S. MADANAPPA Vs. CHANDRAMMA AIR 1965 SC 1812
• M spent money to improve the property of C knowing full well
that the property does not belong to him and was of C.
• C filed a suit for declaration and possession. M contended that
the improvements to the property were effected by him and that
fact was known to C, but C did not raise any objection so the M
can have the property as C is estopped from claiming it.
• The court Held that:- No man who knowing fully well that he
has no title to property, spends money on improving it, can be
permitted to claim payment for improvements which were not
effected with the consent of the true owner.
• The court distinguished Ramsden vs. Dyson The doctrine of
acquiescence cannot afford any help to the appellants for
the simple reason that Maddanappa who knew the true state of
affairs could not say that any mistaken belief was caused in
his mind by reason of what the first defendant said or did.
Lis pendense.
• Lis pendense means a suit under consideration of any
court of law. Lis means a litigation.
• Ut lite pendente nihil innovetur = Nothing new to be
introduced to a pending litigation or proceeding.
• Section 52 of Transfer of Property Act.
• This rule affects the purchaser, because the law does
not allow the litigants during the pendency of a suit to
do any thing which would defeat the final result.
• The main object of this rule is to protect the rights and
interests of parties pending adjudication.
• This Rule is based on equity, good conscience and
justice.
• This is not only based on rule of equity but is a rule of
law.
Lis pendense.
• Based not on doctrine of notice but based on doctrine
of expediency.
• Transfer should have been made by one of the party to the suit.
If it is not done by one of the parties to the suit the doctrine is
not applicable.
• Rule does not annul alienation but subservient to the decision
of the court.
• This doctrine has a very long standing in England but gained
much recognition during 1857 in Bellany Vs Sabine.
• The court in Bellany Vs Sabine observed that ‘where a litigation
is pending between parties as to the rights to a particular
estate, the necessities of mankind require that the courts
decisions shall be binding, not only on the litigants but also
those who derive title under them by alienations made pending
the suit where the alienee had or had not the notice.
• This doctrine was applied in India even before the T.P.Act was
enacted.
• Transaction is not void but voidable,
Section 52
• There shall be a suit pending in a competent
jurisdiction having authority in India or established
beyond the limits of India by the Central Government.
• The suit or proceedings shall not be collusive.
• The litigation shall be in respect of some immovable
property.
• There shall be a transfer of or otherwise dealing with
the property in dispute by any party to the litigation.
• Transfer must affect the rights of other party that may
ultimately accrue under the terms of the decree.
• The object of this section is to maintain status quo.
• The impact of this rule is not violative of the rights
under Article 19 or now the Article 300-A.
Section 52
• Not applicable in respect of :
1. Transfer executed before suit.
2. Transfer effected by a non party to the suit.
3. Transfer executed before suit but registered
after suit.
4. Transfer by operation of law.
5. Transfer by or in execution a decree or
order.(this view is having divergent opinions)
6. Transfer with the permission of the Court.
7. Collusive proceedings.
Lis pendense.
The stress is on pendente lite and it refers to both

the parties to a litigation.
The party can not alienate the subject matter of
the litigation in any manner to undermine the
effect of the decree which is going to be passed.
Any alienation made during the pendency of a
litigation would be hit by the principle of lis
pendense.
Lis pendense
• Lis pendense principle is reflected in section 52
of the transfer of property Act.
• The court shall have jurisdiction to try the suit or
proceedings.
• An appeal is a continuation of original
proceedings so the principle of lis pendense
applies even in respect of transactions taken
place during an appeal. However where the
leave to appeal is pending the lis will not be
there.
Object of lis pendense as stated by Supreme court
• 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 was pending by private dealings
which might 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 a litigation over it were held to
be bound, by an application of the doctrine, by
the decree passed in the suit even though
they might not have been impleaded in it.
Object of lis pendense as stated by Supreme
court
• The act of taking illegal possession of
immovable property or continuance of
wrongful possession, even if the wrong ,doer be
a party to the pending suit, was not a "dealing
with" the property otherwise than by its
transfer so as to be covered by' s. 52 of the
Transfer of Property Act. The prohibition which
prevents the immovable property being
"transferred or otherwise dealt with" by a party
is apparently directed against some action
which would have an immediate effect, similar
to or comparable with that of transfer, but for
the principle of lis pendense. AIR 1973 SC 2537
RAJENDER SINGH VS SHANATA Devi.
Section 52
Transfer of property pending suit relating there
to.
The necessary ingredients needed to attract the
principle of lis pendense.
• 1. Pendency of a case
• 2. In any Court having authority within the limits
of India.
• 3. Court established beyond such limits by the
Central Government.
• 4. Suit or proceeding not collusive and
• 5. In which any right to immoveable property is
directly and specifically in question.
lis pendense
• Illustrations:-
 A mortgaged the property to B. B instituted a suit and
obtained a decree of foreclosure. Before the decree
was made absolute, the A sold the property to C. The
decree for foreclosure was made absolute and was
held that C was not entitled to redeem.
Question whether the lis pendense applies or not?
Answer: If C had purchased the property before
institution of the suit then the principle of lis pendense
would not have applied. But, the sale transaction took
place during the pendency of the suit. Hence the C
was bound by the judgment and decree. Principle of
lis pendense applies.
Purushotam Vs Chabeda lal ILR 29 All 76
• A mortgaged the property to B. B sued A on the
mortgage and obtained a decree for sale of the
property. While the decree was in execution, A
leased the property to C for a period of 10
years. B there after brought the property to sale
and purchased it for himself.
• Question:- Whether the C’s lease hold right
would be effected by the principle of lis
pendense.
• Answer:- as the C had the lease during the
subsistence of a proceeding the C was bound
by the final decision. The execution of a decree
is a continuation of the original proceedings. B
could evict C
• Nisar Hussein Gs Sunder lal ILR 50 All 202.
• A mortgaged the property to B. B sued A on the
mortgage and obtained a preliminary decree for
sale of the property. A there after entered in to a
usufructuory mortgage of the same property
with C. B obtained a final decree for sale and in
execution the property was sold and purchased
by D. What would be the position of the
usufructuory mortgage of the property with C.
• Answer: the usufructuory mortgage of the
property with C is done during the subsistence
of the proceedings and is hit by the principle of
lis pendense. Therefore the same is not valid. D
could recover the possession from C and so
also all the rents collected by C from the date of
purchase by D.
• Nagendra Vs Sarat Kamani. AIR 1922 CAL 235.
• A make a gift of his property to B. C files a suit
against A and seeks the possession of the
property. When the suit is pending adjudication
B transfers the land to D and A dies due to
heart attack. C obtains a decree for possession
against the legal representative of A. whether
the title is effected by the rule of lis pendense
as to the subject of a decree passed in favour
of C ?
• Answer: No, because;
(1) the gift of the property to B was made much
prior to the institution of the suit by C against A.
(2) B was not a party to the suit at the time of
transfer of property by him to D.
 Bala ramachandra Vs dallu. AIR 192 BOM 176
• A was allotted a plot of land by the development
authority. One of the condition was that A shall
construct a house with in a span of two years and
shall give a declaration to the effect. A did not comply
with the said terms. Hence the allotment made in
favour of A was cancelled. The authority resumed the
land on 26th day of October 1984. The proceedings
instituted by A against the authority ultimately
terminated in an appeal on 19th April 1985. The plot
was there after allotted to a third party on 29th January
1986. Whether the principle of lis pendense applies?
• The doctrine of lis pendense has no application in this

case as the allotment of the land was effected long
after the final disposal of the appeal.
• Amrit lal Jalan Vs Haryana urban development Authority. AIR 1999 P & H 140.
Introduction of lis pendense in India.
• Fiayaz Hussain Khan Vs Prag Narain ILR 1907 All 339

(P.C) Applied the principles of English law prior to
1929.
• “A” a mortgagee sued to enforce his mortgage. Even
before the service of summons on the other side, the
mortgagee executed a puisne mortgage in favour of
“B”. The prior mortgagee continued the suit. Later he
brought the said property for sale without making
puisne mortgagee a party to the suit.
• Question:-whether the subsequent transferee would
be effected by the rule of lis pendense.
• Held:- the subsequent mortgagee was effected by the
principle of lis pendense.
Immovable vis a vis movable property
• The provisions contained in section 52 of transfer of
property is not applicable with reference to the
movable properties.
• Section 37 to 52 specifically applies only to immovable
properties and not for the movable properties.
• In vasantha Vishwanathan Vs Elayalwar 2001(8) scc
133, the supreme court specifically held that the
principle of section 52 T.P.Act not applicable to the
movable properties.
• The provisions of section 52 are not applicable to the
standing timber as it is not an immovable property.
Principle of Lis pendense not
applicable
• Suit in which the movable property is in
question.
• Suit for maintenance by a Hindu wife where the
relief is sought for as of a personal nature, but
not where it is sought for as a charge on a
specific immovable property
• A suit to recover money regarding which no
specific immovable property is concerned.
• Transaction is not between the parties to the
suit or proceedings but with strangers to it.
• Suit for mere rent
Principle of Lis pendense applicable
• where maintenance is sought for as a charge
on a specific immovable property.
• Where it is in respect of partition of immovable
properties.
• Transaction is between the parties to the suit or
proceedings including the legal representatives.
• Suit on mortgages.
• Suit on pre-emption where a specific
immovable property is involved.
• Where it is in respect of easement where the
suit relates to an easement right.
• Court sales though it is of an involuntary nature.
Bombay amendment Act 4/1939.
• The law as it stands now is not having any provision
order to ensure that a purchaser will be informed by
the seller about the pendency of a litigation in the
Court, a safe guard is needed.
• Bombay amendment of 1939 has made specific
provision that the provision of section 52 shall apply
only if a general notice regarding the pendency of the
suit or proceeding is registered under section 18 of the
Registration Act 1908 giving description of the
immovable property and the court in which the matter
is pending, the date of filing of the suit, and such other
particulars as prescribed.
• The said amendment is now extends to the present
State of Gujarat and Maharastra. But in respect of the
area which is out side the Greater Bombay in
Maharastra a specific notification is needed.
Law commission of India and
recommendations
• Law commission of India in its 157th report
recommended that the section 52 of T.P.act be
amended on the model of Bombay Act.
• The said amendment is not yet been approved by the
Parliament.
• Law commission of India in its 178th report has in fact
recommended that the provisions of Indian Penal
Code be amended to introduce Section 424 B to make
it an offence when any person knowingly executes any
instrument which is or purports to be a transfer of
immovable property or any interest therein *****fails to
refer to the pendency of suit or proceeding and
executes such instrument and punishable with an
imprisonment of three years.
Commencement of suit
• A suit is commenced by filing a plaint or
presentation of the plaint under section
15 of the code of civil procedure.
• Appeal and execution are considered as
the continuation of a suit.
Fraudulent transfers
• Fraud goes to the root of the matter and law does not
encourage fraudulent transactions.
• Law favours honesty and discourages fraud.
• Transfer of an immovable property made to defeat or
delay the claim of the creditors of the transferor.
The transfers are voidable at the option of the Creditor
so defeated or delayed.
Preference to one creditor the transaction is not voidable
but against a group of creditors but the Calcutta High
court has held in U.O.I. Vs. R.P.Debi that if there is
only a single creditor then transfer to delay or defeat
could be invoked.
• Transfer of immovable property made with out
consideration with an intent to defraud a
subsequent transferee. The transfers are
voidable at the option of the subsequent
transferee.
• Section 53 of the transfer of property act
envisages this principle.
• This section was amended by the amending Act
of 1929
• It is based more on equity, justice and
Good conscience.
• Fraud is a fact to be proved and can not
be presumed.
Section 53 prior to and after 1929
Every transfer of . Every transfer of immovable
immovable property property made with an intent to
made with an intent to defeat or delay the creditors of
defraud prior or the transferor is voidable at the
subsequent transferee option of any creditor so
thereof for defeated or delayed.
consideration or co Nothing in this sub section shall
owner or other persons impair the rights of transferee in
having an interest in good faith for consideration.
such property or to Nothing in this sub section shall
defeat or delay the affect any law for the time being
creditors of the in force relating to insolvency.
transferor is voidable
at the instance of the
person defrauded or
delayed.
When the effect of any A suit instituted by a creditor which
transfer of immovable term includes Dhr whether he has or
property is to defraud has not applied for execution of his
decree) to avoid a transfer on the
or delay, any such ground that it has been made with
person and such intent to defeat or delay the creditors
transfer is made of the transfer or shall be instituted
gratuitously or for on behalf of, or for the benefit of all
grossly in adequate the creditors.
consideration, the 2. Every transfer of i. p made with
transfer may be out consideration with an intent to
defraud a subsequent transferee
presumed to have been shall be voidable at the option of
made with such an such transferee.
intent. For the purpose of this sub section,
Nothing contained in no transfer made with out
this section shall impair consideration shall be deemed to
the rights of any have been made with an intent to
defraud by the reason only that a
transferee in good faith subsequent transfer for
and consideration. consideration was made.
Transfer
• The transfer referred to in section would be with
reference to the transfers binding between the parties
but voidable in the circumstances narrated in section
53.
• The transfer would be valid until it is set aside.
• The document made to delay or defeat the claims of
the creditors would be binding on the executant and
other persons claiming under him.
• The said transfers shall not be confused with that of
benami transactions.
• The principle of the section 53 applies even in respect
of an award or decree though for the purpose of
section 2(d) the decree is not a transfer.
• E a man of extravagant and dissolute habits
was persuaded to reform himself and to have a
settlement of the properties on his wife and
children. After some time E got himself
relapsed with old habits and ran in to debts.
Question :- whether the settlement is hit by the
provisions of section 53.
• Answer:- the term creditor includes the
subsequent creditor but the settlement was held
not to be voidable by the subsequent creditors
as the settlement was done with a good faith.
• Ebrambim bai vs Ful bai. 1902 ILR 26 Bom 577

• A obtained a decree against B for the
possession and mesne profits estimated to
Rs.10000/- B a month later, executed a deed of
trust settling all properties of which he was then
possessed on his wife and children.
• Question: Question :- whether the settlement is
hit by the provisions of section 53.
• Answer:- the settlement was held to be
voidable as the settlement was not done with a
good faith.
Nauramman lal vs Stephan. AIR 1922 Pat 572

Transferees right not
effected
• Where the transfer is
done in good faith for
consideration.
• Where the transfer is in
respect of any movable
property.
Problems.
• A obtained a decree against B. B in order to
defeat the claim of A, decree holder transferred
the property of an immovable nature to C by
way of gift.
• A obtained a decree against B. B in the
meanwhile sold the property for a consideration
to C who purchased the property in good faith.
Can A succeed against B.
• A obtained a decree against B. in order to
defeat the decree holders claim B transferred
the property to his wife in satisfaction of debt
due to her. Can the Decree holder impeach the
transfer.
Part performance
• Doctrine of part performance is also known as equity of part
performance.
• If a person takes possession of an immovable property on the
basis of a contract of sale and has either performed or is willing
to perform his part of contract then he can not be ejected from
the property on the ground that the sale was unregistered and
the legal title has not been transferred to him.
• The principle of part performance dates back to 1677.
• To mitigate the hardship caused on account of section 4 of the
statute of frauds the concept of part performance emerged as a
remedy at the hands of the equity courts.
• This doctrine traces its origin to Maddison vs Alderson 1883
A.C 467.in this case Lord Selbourne said that in a suit of part
performance, the defendant is really charged upon the equity
resulting from the acts done in execution of a contract and not
upon the contract itself. If such equities were excluded then the
injustice which the Statute could not have thought of would
Part performance
• Indian counter part in Kurri Veera Reddi vs Kurri Bapi Reddi
1906 Mad 336 Madras High court held that the principle of Part
performance does not apply in India, but the Privy council in
1914 in Md.Musa Vs Aghore Kumar Ganguly applied the
principle of equity, good conscience and justice to mitigate the
hard ship caused to the parties. In that case the court held that
the compromise deed though is unregistered but it was I
writing and therefore it can not be repudiated.
• Arif Vs Jadunath the Privy Council however took a different turn
by stating that the principle of part performance do not apply to
India as the provisions of Indian Registration Act can not be bye
passed.
• Again in 1919 in Mian Pir Baux Vs Sardar Mohammed the privy
council held that the principle of part performance can not be
applied in India as there is an express statutory provision.
• These controversies necessitated to amend T.P.Act I 1929 to
introduce section 53 A.
Part performance as reflected in section 53
A
• There shall be a contract to transfer an immovable
property for considertion.
• The said contract shall be in writing.
• The terms of the contract shall be clear and
reasonably ascertainable with certainty.
• the transferee should have taken possession of the
immovable property in part performance of the
contract or that he is already in possession of it and
should have continued and done some thing in
furtherance of the contract.
• Transferee shall be ready and willing to perform his
part of obligation in the contract.
• This is based more on the principle that he who seeks
equity shall do equity. Equity looks at intent than form.
Nature of transferee’s right
• Does not convey any title or interest in respect
of property to the transferee.
• It could be used as a defense and not to create
a new right. In India it is a part of passive
equity and not contra. Hence it is said that the
part performance is only a shield and not a
sword.
• To defend possession would denote that the
party who seeks the aid of it could either be a
plaintiff or defendant and not necessarily a
defendant.
• If a partly could show that his possession is at
stake then he could have the benefit of part
performance.
Walsh vs Lonsdale
• This is a case of 1882.
• L agreed in writing to grant lease for seven years a mill to W.
• The rent agreed was payable once in a quarter, but one year
rent payable in advance if demanded.
• W got the possession of the property without any lease deed
being executed and the quarterly rent being paid.
• L demanded from W one year rent, but W refused to pay the
said amount.
• W filed a suit for injunction and damages for illegal distress on
the ground that he was a tenant on year to year basis and not
liable to pay any advance.
• The court did not agree with W, and on the other hand held that
the suit needs to be held in favour of L, that a tenant who
entered the possession and enjoyed the possession is
prevented by equity from taking advantage of the lease deed
being not executed.
• In view of Arif and Mian case as decided by the P.C. the ruling
of Walsh is not applicable in India.
Difference between Indian and
English law
Written agreement is a Oral agreement is
must in India sufficient in England
Only as a shield and not Both as a shield and

as a sword.i.e. to defend sword. i.e. to defend
and not to enforce a and to enforce a right
right
Statutory right of Equity right of defense.

defense.
Problem no.1.
• A and B agreed that property x as owned by A should
be leased to B. B was already in possession. On the
basis of the agreement B built a house. Subsequently
A sued B and sought for an order of eviction.
• Question: whether the principle of part performance
could be applied?
• Answer: what is needed is not a formal lease deed
but even an agreement is sufficient. The said
agreement shall be in a position to convey the actual
intent which the parties had intended. If the
agreement had not been reduced in to writing then
section 53A would not come to the rescue of the
defendant.
Amendment of 2001
with reference to section 53A
• The transfer of property Act and the Registration Act were
amended in 2001
• Unregistered document is now withdrawn for the purpose of
section 53A.
• This came in to effect from 24.9.2001
• The amending act omitted the words ‘contracts though required
to be registered has not been registered’. Similarly the
amending act amended section 17 and 49 of the registration
Act.
• Section 17(1A) of the Registration Act envisages that the
document containing a a contract to transfer for consideration
any i.p for the purposes of section 53A shall be registered and if
they have been effected after 24.9.2001and if the document is
not registered then the document shall have no effect for the
purposes of section 53A.
• Section 32A requires that every person presenting the
document shall affix his pass port size photo and finger print to
the document.
Whether the stamp duty is to be
paid for such an agreement.
• Yes.
• It depends on the stamp act of every

state as the imposition and collection
of the stamp duty is a State subject.
Part performance amount and
income tax act.
• The amount received as advance in
connection with sale in pursuance to an
agreement under section 53A would be
considered as an income.
• Whether the said course of action is
proper is a big question.
Part performance and adverse
possession
• Plea of adverse possession and part
performance are of inconsistent nature
and a person in possession of a property
in pursuance to a part performance can
not be permitted to have the plea of
perfecting the title due to the adverse
possession as he traces the possession of
the land lawfully under an agreement.
sale
• Sale is a transfer of ownership for consideration.
 The consideration may be
 paid or
 promised or
 Part paid and part promised.
 Sale may be in respect of a
 Tangible immovable property
 Intangible immovable property.
 The person who sells is a seller while the person who buys is a
buyer.
 The essential elements of a sale are
The parties.
Subject matter
Transfer or conveyance as contemplated under section 55
Price or Consideration.
Mode of transfer by sale
• By registered instruments.
Under the provisions of the Indian Registration
Act. The Said Act does not make any distinction
between tangible and intangible properties but
makes registration optional only in respect of a
transaction where the consideration is less than
Rs.100/-
• By delivery of possession.
In case of tangible property worth less than
Rs.100/ by delivery of possession the sale
could be done.
Sale and contract for Sale
• Contract for sale is not a sale.
• Contract for sale does not confer any title or
create any interest in the property.
• Contract for sale is also know as agreement for
sale. It should not be understood as agreement
of sale.
• Contract for sale is a mere document creating
right to obtain a sale deed.
• Unless part performance is there the contract
for sale does not require registration.
• Sale transfers the title or ownership.
• Sale creates interest.
Sale Gift Exchange
Price present No Compensation.
price/compensation
Sale is a Gift is a Exchange is a transfer
transfer of transfer of of property for mutual
property for property for no transfer of ownership of
consideration consideration. one thing for the
ownership of another.
Section 54 Section 122 Section 118
Covers immovable Covers immovable Covers both movable

properties and if it properties and if it
is in respect of is in respect of
and immovable
movables then movables then sale properties .
sale of goods act of goods act
applies. applies
Sale liabilities and rights of seller Before completion
of sale.
To disclose material defects take profits and
55(1)(a) rents To55(4)(a).
produce title deeds for
inspection. 55(1)(b)
answer reasonable questions as
to title. 55(1)(c)
Execute conveyance. 55(1)(d)
Take care of the property & title
deeds 55(1)(e)
Pay public charges and accured
rent. 55(1)(g)
Sale liabilities and rights of seller after
completion of sale.
Give possession of Charges for the unpaid
property. 55(1)(f) price. 55(4)(a)
Implied covenant to title

55(2)
Deliver title deeds on

receipt of price. 55(3)
Sale:- liabilities and rights of buyer Before
completion of sale.
Liabilities Rights.
Disclose facts which Charge for the prepaid
materially increases the price. 55(6)(b)
value of the property
55(5)(a)
To pay price. 55(5)(a) Inspect the title deeds in a
reasonable manner.
To ask reasonable
questions relating to the title
of the property.
Inspect the property.
Sale:- liabilities and rights of buyer after completion
of sale.
Liabilities Rights
To bear loss of property Benefits of increments.

55(5)( c) 55(6)( a)
To pay outgoings public To take possession.
rents and charges.
55(5)(d)
To take documents of title
deed.
To obtain deed of
conveyance.
sale
Movable
Immovable
Registration not
compulsory
Tangible
Intangible
Less than Rs.100/= & Registration

Rs.100/= More than compulsory
Gift Will
Immediate effect Not with an Immediate
effect
Requires registration Requires no registration
either during the life time either during the life time of
of the donor or thereafter. the testator or thereafter.
Non registered gift deed Non registered will can be

cannot be enforced enforced
Irrevocable when once a revocable during the life

gift is given time of testator
Gift.
Movable property
Immovable property
Delivery
Of
Registration property
not Registration
compulsory compulsory
Delivery
And
acceptance compulsory
Gift
By a
Person
Of
By a unsound mind
minor To a
minor
To a
Could be Person
Accepted through a Of
guardian unsound mind
Can not be made

• Valid requirements of a gift are;
 Absence of consideration/compensation.
 There shall be a donor.
 There shall be a donee.
 Voluntary
 there shall be a subject matter.
 There shall be a transfer,
 There shall be an acceptance.
 Bilateral transaction.
If any of them are not present then there can not

• Gift under Mohammedan law
• Varies from T.P.Act.
• T.P.Act not applicable to a gift.
• Gift is known as Hiba
• Requirements under Mohammedan law
Declaration.
Acceptance.
Delivery.
Writing not essential.
If in writing no registration is need.
If in writing no attestation is needed.
• Gift under Hindu law does not Vary from T.P.Act.
• T.P.Act applicable to a gift.
• Gift is known as Dana.
• Requirements under Hindu law
Declaration.
Acceptance.
Delivery.
Writing essential.
Registration is need
Attestation is needed
Hindu can gift the joint family property after meeting
the family needs and not otherwise. However he can
gift his self acquired property with out any restriction.
Gift
Valid gifts
Onerous gifts
Void gifts
Gifts as per section

122
Gifts
Gifts for unlawful purpose,
Forbidden by law,
as per
In competency to contract section 127
Donee dies before acceptance,
Property not in existence.
Onerous gifts
•The necessary elements are;
 gift must be in the form of a single transfer
 to the same person.
 several properties.
 among them one is burdened with liability while others are not.
 Donee has to accept , and he can not accept benefits and
reject the liabilities.
 here the principle resembles that of an election to some
extent though not in full.
 A has shares in company X and company Y. among the said companies the
financial stability of Y company is not so sound when compared to X. heavy
calls are expected in respect of Y company. A gives to B all his shares of
both the companies. B refuses to accept the shares of Y company while
accepts the shares of X company. Could he do so.
 No
 However if the gift is in the form of two or more separate
transfer to same person of several things the donee could
accept one of them and refuse to accept the other, although the
former may be beneficial and later as not beneficial.
Universal Donee.
• While section 127 is based on Qui sensit
commodum debet et sentire onus, the section
128 is based on the principle that if the donor
has given to the donee all his properties then
the donee would take not only the benefits but
also the liabilities.
• The donee can not say he wants all the benefits
and not the liabilities.
• This is based more on the principle of
approbation and reprobation.
• This is more based on the principle that one
who wants to have benefit shall be ready to
Mortgage
• What is a mortgage
• Parties to a mortgage.
• Types of mortgage.
• Mortgage in Indian scenario.
• How to create a mortgage.
• Rights and liabilities of mortgagor
• Rights and liabilities of mortgagee
• What is redemption.
• What is a foreclosure.
• Limitation regarding mortgage.
What is a mortgage
• Section 58 of transfer of property act defines as to what a
mortgage is.
• Basically mortgage is a transaction where the immovable
property would be given as a security to raise the loan or for
the borrow of the money.
• If a movable property is given as a security to borrow money
then the same would not fall under the category of mortgage
and on the other hand would fall under the category of pledge.
• Mortgage is transfer of interest being creation of a security in
respect of the property. It is not a sale where the property is
transferred lock stock and barrel to the transferee.
• The mortgage differs basically from a lease, as in case of
lease the interest transferred is that of enjoyment of the
property as against a rent or premium.
Parties to a mortgage.
• Mortgagor is a person who gives the property
as a security. That is transferor is known as a
mortgagor.
• Mortgagee is a person who advances the
money to take the property as a security. That
is a transferee is a mortgagee.
• The property which is given as a security is
mortgage property.
• The money paid by the transferee to transferor,
that is from the mortgagee to the mortgagor, is
the mortgage money.
• Once a mortgage always a mortgage.
• .
Mortgage .
Mortgagee.
Mortgagor
Mortgage property Mortgage money
Security.
Types of Mortgage.
• Simple mortgage
• Equitable mortgage or mortgage by deposit of title
deeds.
• Usfructiory mortgage.
• Mortgage with conditional sale
• Possessoiry mortgage.
• Anomalous mortgage.
• New dimension is with reference to that of
reversionary mortgage.
Lease and mortgage.
Transfer of right to enjoy . A mortgage is the
an immovable property transfer of an interest
for certain time, express in specific immovable
or implied or in perpetuity property for the purpose
in consideration of a of securing the
price paid or promised, or payment of money
of a money, a share of advanced or to be
crops, service or other advanced by way of
thing of value, to be loan, an existing or future
rendered periodically or on debt, or the performance of
specified occasions to the an engagement which may
transferor by the transferee give rise to a pecuniary
who accepts such transfer liability.
on such terms.
Lease
• Essential elements of a lease are:-

Ω The parties.
Ω Subject matter i.e a specified immovable
property.
Ω The demise or a partial transfer, (word demise
is not used in T.P.Act but is barrowed from
English law which is based on the Latin phrase
“demitto”)
Ω Term or period.
Ω The consideration or rent.
• Whether a lease could be granted by a person for
himself.
• No . Every tenancy is based on an agreement
between two persons and contains covenants
between two persons and contains covenants
expressed or implied by one person with another.
Now if a person cannot agree with himself and cannot
covenant with himself. I do not see how he can grant a
tenancy for himself…. The tenancy must stand or fall
with the agreement on which it is founded and with the
covenants contained in it: and as they fall so does the
tenancy. Lord Denning.
• “Nemo protest esse tenens at dominus”

Indian Scenario
• Not different from what Lord Denning

said.
• Section 2 of contract Act regarding a
contract.
• Section 108Need to have parties
lessor and lessee.
• Section 111(d) rule of merger.
Who can enter a lease.
• A person capable of entering in to a

contract can enter in to a lease.
• An unregistered association is not a legal
entity and therefore can not enter in to a
lease.
• Minor or a lunatic can not enter in to a
lease as the leasee has to perform certain
obligations.
A lease cannot be there for
• Illegal purpose.
• A purpose against the public policy.
• Where the law specifically prohibits.

Types of leases.
• .
agricultural
Lease Manufacturing
general
Periodic
Or perpetual
temporary
Commercial Non-commercial
monthly Yearly.
How to make a lease.
• The lease is made by a contract.
 The lease from year to year, or
 any term exceeding a year, or
 reserving the right to receive the rent on an yearly basis
shall be done by a registered instrument.
 In all other case the lease may be done either by a registered document or
delivery of possession.
 The government may from time to time issue notification regarding lease be
made by an unregistered document or by delivery possession in respect of
property other than year to year lease or where the right to receive the rent
on an yearly basis is there.
 Contract for lease is not a lease deed.
 Contract for lease is not an agreement of lease.
 A lease compulsorily be registerable if not registered can not create a lease
but if the lessor accepts the rent from the lessee who is possession of the
property then by implication the lease is created but the same can not be
used for part performance after 2001 in view of the amendment to section
53A.
 A year to year lease in the absence of registration would have to be treated
as a month to month lease. However there is a view that there can not be a
lease and at the most it would only be a license.
Monthly tenancy
• A tenancy from month to month.
• It may be for a specific period of months or may not be
so.
• The characteristic feature is payment of rent from
month to month.
• Subject to be terminated with fifteen days notice.
• If it is not for the purposes of agricultural or
manufacturing purposes then the tenancy by default is
by month to month, if there is no other agreement.
• It may be as per English calendar or any other
calendar as fixed between the parties.
• Word month shall be understood as given in the
general clauses Act as the T.P.Act has not defined it.
Manufacturing purposes
• This phrase is used in a general and popular manner
and not with any technical definition.
• If the main or substantial purpose is for ‘Manufacture’
then it is to be treated as the Manufacturing purpose.
• If the work is not for manufacturing purpose but if it is
only of an incidental nature to the manufacture then
the lease is not for a manufacturing purpose.
• The tests for manufacturing purposes are
1.certain commodity must be produced.
2 process of production involve labour or machinery.
3 end product which comes out after manufacture shall
be a complete one and shall have a different name
and should be put in to different use. That is the
commodity should be so transformed to loose its
original character.
Quit notice
• Yearly tenancy ie agricultural or manufacture purpose shall be
terminable with a notice of six months.
• Monthly tenancy shall be terminable with a notice of fifteen
days.
• Notice shall be in writing.
• Notice shall be signed by or on behalf of person giving it.
• Should have sent by post to the party who is intended to be
bound by it, or
• Tendered or delivered personally to such party or to one of his
family member or servants at the residence if tender or delivery
is not possible., or
• By affixture on the conspicuous part of the property.
• The period shall commence from the date of receipt of notice.
• The notice is not invalid merely on the ground that the period
mentioned in the notice falls short of the period specified in sub
section 1 of section 106.
Rights and obligations of the lessor
and lessee.
• 1. As per agreement or contract.
• 2. As per local usage.
• 3. As per the provisions of section

108
Obligations and Rights of lessor u/s 108.
Lessor is bound to disclose Any accession made to the
to the lessee any material property subject to the law
defect in the property with relating alluvion rights.
reference to the intended
use.
Lessor is bound to put To receive rent or premium.
lessee on request in to the
Lessor shall be deemed to Inspect the property with

contract with lessee that so due notice.
long the later pays the rent,
the lessee shall hold the
Obligations and Rights of lessee u/s 108
• 1 Accretions
• 2 Destructions
• 3 Repairs.
• 4.Payments made on behalf of lessor.
• 5.Fixtures.
• 6.Crops.
• 7.Assignment.
• 8.Lessee’s duty to disclose
• 9.obligation to pay rent.
• 10.user
• 11.errection of the building.
• 12.Restoration of possession.
Accretions
• This principle is applicable more in respect of
agricultural lands and the property situated by the side
of river, sea and so on.
• The land gradually or imperceptibly accreted would
form a part of the lease.
• It may be due to the natural means or may even due
to an artificial means.
• Natural means may be due to floods, and other
vagaries of nature.
• Artificial means may be due to acquiring title,
encroachment, grant to the owner of the land.
• The lessee holds the leasehold property during the
term with a proportionate increment in rent.
• This right is available for a lessee and not a licensee.
Destructions
• If due to fire, tempest, or flood, or violence of any army or of a
mob or irresistible force any part of the leasehold property is
wholly destroyed or rendered substantially and permanently
unfit for the purposes for which it was let the lease shall be at
the option of the lessee shall be void. If the said injury or
damage has occurred on account of the conduct of lessee then
he shall not be entitled to the benefit.
• The destruction of the premises is due to the act of lessor then
it can not be said to be due to the act of God.
• If the property is not destroyed or substantially or permanently
unfit, then this clause under section 108 clause (e) will not
come in to play.
• The clause (e) gives an option to the lessee to avoid the lease
by notice.
• Generally this clause applies to the situations such as lease in
respect of coffee plants, godowns, buildings.
• This clause does not apply in respect of situations where a
building is let out and the same is damaged due to an
earthquake as the building becomes unfit for human habitation.
Repairs.
• This is subject to contractual aspect in case of a contract.
• This is subject to statute in case of a statutory tenant.
• The lessor in the absence of a contract or statute is not under
an obligation to carry out the repair.
• In fact clause (m) of section 108, imposes an obligation on the
lessee to keep the premises in a proper condition and return it
to the lessor in the same condition in which it was given.
• In case of an express covenant in the lease deed to carry on
the repair by the lessor and if the lessor fails to carry out the
repair, then the lessee cannot terminate the lease but on the
other hand insist the lessor to carryout the repair. In case if the
lessor in spite of notice fails to carry out the repair then the
lessee could get the repair work carried out at his expense and
claim the same from lessor either by deducting the same in rent
or premium or may institute a separate case.
• A covenant by tenant that he would pay rent without any
deductions does not exclude the lessee’s right to claim
reimbursement of the amount spent by him on account of the
failure of the lessor to carryout the repair.
Payments made on behalf of lessor.
• If the lessee makes any payment the lessor is bound
to make, and which is recoverable as if like the charge
on the property and if lessee makes such payment
then the lessee is entitled to deduct the amount out of
rent or recover the same.
• Section 69 of the Indian contract Act also envisages
this aspect.
• The payment under this clause is mainly towards the
Governmental dues, municipal taxes, etc.
• The word neglect would mean that of payment of tax
which the lessor was bound to make.
• If the lessor was not bound to make the payment then
the clause would not apply.
Fixtures.
• This is a lessee’s right to take away the fixtures which he had
fixed at the premises for the better enjoyment.
• The lessee while doing so shall not cause any damage to the
property which had been leased to him.
• If the contract between the lessor and lessee envisages that the
lessee shall not be entitled to take the fixtures with him then he
can not take away the said fixtures.
• If any condition is imposed to allow the fixtures to the lessor,
then the said conditions shall be construed strictly.
• What is a fixture depends on the situation and a hard and fast
rule can not be drawn in this aspect.
• The fixtures if are of such nature that they can not be removed
and if the contract has provided any term to the effect that the
lessor has to make good of the value, then the lessee would be
entitled to the value. However the lessee can not compel the
lessor to pay the value if the said fixture is not fixed as per the
request of the lessor.
Crops.
• This clause applies in respect of lease of
uncertain duration terminated by any means
except the fault of lessee or the legal
representatives of a lessee.
• The lessee is entitled to all crops grown by him.
He can take the crops and utilize.
• The clause is subject to the agreement if any
between the lessor and lessee.
• The right given under this clause is almost
similar to the right conferred under section 51 to
a bona fide transferee.
Assignment.
• Subject to the contract the lessee is bound to disclose to the
lessor any fact as to the nature of the interest which the lessee
is about to take and which the lessor is not aware.
• Subject to the contract the lessee is bound to disclose to the

lessor any fact as to the extent of the interest which the lessee
is about to take and which the lessor is not aware.
• If the contract forbids any assignment being made about the
nature or extent of interest then the lessee can not make such
an assignment.
• The assignment may be in the form of sub lease, mortgage or

sale.
• If the contract prohibits the assignment in any form then the

lessee can not make any assignment. If an assignment is made
then the lessor could get rid of the lessee by determining the
lease.
• The lessee after the assignment
would not get himself absolved of his
liability with reference to the lease
transactions unless the lessor has
otherwise agreed upon.
• The assignee would be liable to pay

and answerable to the lessor and he
can not put forth a plea that he is not
having any contract with the lessor.
Lessee’s duty to disclose
• While under clause (a) of section 108 the
lessor is under an obligation to disclose to
the less the defects of which he is aware
of the use of property, the lessee is under
a corresponding duty to a limited extent to
inform the lessor of the fact which the
lessor is not aware but the lessee is
aware, and that fact has an effect of
materially increasing the value of the
property.
obligation to pay rent.
• It is one of the primary duty of a lessee or a
tenant to pay the rent at the stipulated point of
time. If the rent is not paid then the lessee or the
land lord will get a right to get the tenant or
lessee to be evicted.
• When a payment is made the lessee is entitled
to have the receipt
• Mode of payment shall be as stipulated in the
agreement. In the absence of any such
stipulation, the payment shall be made by cash.
• The liability to pay rent continues till such time
the lessee vacates the property or is evicted by
the lessor/land lord.
User
• The lessee shall use the property as a
reasonable prudent person.
• The lessee shall use the premises for the
purpose it was leased.
• Use and its purpose depends on the facts of the
case. There can not be a hard and fast rule to
have any specific meaning.
• Change of user needs to be looked in to in the
background of the property and premises.
• User includes non user.
Change of use as held by courts.
• A premises let out to run a tea stall being used for a lathe
work shop.
• The open space let out for agricultural proposes being
used to put up a building.
• Establishment of an office in a portion of the premises let
out for residential purposes.
• Shop let out to be used as a kirana shop is used as a
hotel.
• Shop let out to be used to sell soft drinks and dry fruits
being used to prepare pakodas.
• Premises let out to be used as a house is concerved to
be used as a commercial place.
• Residential premises used as a boarding home for
students or guests.
Erection of the building.
• In the absence of the contract the tenant if he puts up
any construction then he would be liable to be evicted.
• The tenant/lessee would forfeit his right to continue
the tenancy/lease.
• The requirement is that of a permanent structure.
• To put up such a structure the tenant/lessee shall not
have obtained the consent of the lessor.
• If the lessor or his authorized representative has given
permission then the tenant/lessee would not be said to
have violated the lease agreement.
• The permission may be express or implied.
• What is a permanent structure is a question of fact
and varies from case to case.
• Similar provisions are there in respective rent control
acts of the States.
Permanent structure as held by courts
• One thing should be noted that though
philosophically it is said that nothing under sun
is permanent and every thing is to under go a
change but the same is to be considered with
certain broad spectrum relating to the use and
manner of fixture.
• The courts have taken divergent views about the
meaning of what is a permanent structure.
• There is no specific definition.
• What is the yardstick to be applied in this context
is as to the nature of the addition and how it is
intended to be put.
Restoration of possession.
• On expiration of the lease period the lessee is
bound to put the lessor or his legal
representative in to the possession of the
property leased out.
• Lessor cannot impose any terms and conditions
to the lessee when the possession is handed
over.
• If the lessee has abandoned the property
without validly delivering the possession then
the lessor can claim not only damages but also
the rent till such time the possession is
recovered as per law.
• Restoration to one of the co-owner in the
absence of the contract is a restoration.
Rights of lessor’s transferee
• Governed under the provisions of section 109 of
T.P.Act.
• This section is based on the principle laid down in
Wordsley Brewery Co Vs Hal ford.
• This section was introduced in to the frame work of
the Act by the amendment effected in 1929
• Transfer may be in respect of
 Property leased in full.
 Property leased in part.
 Interest in respect of property leased.
The transferee in the absence of any contract
 All rights.
 Regarding the liabilities, unless if the lessee elects,
then the transferee would be liable to all liabilities
which the lessor was.
Rights of lessor’s transferee
 Limitation to the above rule;
o The transferee would not be entitled to any arrears of rent prior
to the date of transfer.
o If the lessee not having any reason to know that a transfer had
been effected pays the rent to the lessor then he shall not be
liable to pay the rent to the transferee again.
 Tripartite settlement to have effect.
the lessor, lessee and transferee could hold a joint meeting
if they hold a joint meeting and determines as to the rights and
liabilities then it will have effect.
The said meeting may decide the rent payable by the rent
payable by the lessee.
 Failure of the settlement:
In the event of failure then the matter is to be decided by the
court
Rights of lessor’s transferee.
• .The said transferee subject to the contract
would be entitled to all incidents of lessor.
• Attornment:
Attornment is a process in which the relationship of
landlord and tenant would be acknowledged with
reference to the new land lord.
This process would avoid the scope for further litigation
to dispute about the ownership of the transferee in
future.
• Apportionment.
Principle as envisaged under section 37 would apply.
• Statutory transfers.
How to compute the dates in case of a lease.
• Reckoning the date is an important factor in a lease.

The date is important for the purposes of payment of
rent, termination, payment of dues.
• Section 110 of the T.P.Act envisages about this.
• The rule envisaged is almost similar to the provisions
of section 9(1) of the General clauses Act.
• Where the specific day is mentioned, then the said
day shall be excluded.
• Where the specific day is not mentioned, then the time
so limited begins from the making of the lease.
How to compute the dates in case of a lease
• Rule where the time is limited
Where the time is limited in respect of an year or
years, the rule is that if there is no agreement
then the lease shall be the whole anniversary of
the day from which such time begins.
Where the time is limited is expressed to be
terminable before the expiration of the time and
if the lease deed is silent as to who has to
terminate then such an option to terminate could
be exercised at the instance of the lessee and
not the lessor. This is known as the ‘option to
break’ rule.
Rule of Option to break
• As per this rule there shall be a clause in the
agreement that the lease is renewable after a
specified period.
• The said renewability if is at the option of either party
then the both the parties could exercise the option.
• In the event if the clause relating to the renewability is
silent as to who has to exercise then by default the
right vests with the lessee and not the lessor.
The condition of option shall be construed strictly and
not in a lenient manner.
While exercising the option by lessee he shall not be
a defaulter and has complied with the terms of the
lease strictly. If he is a defaulter in payment of rent or
any of the clauses of the lease deed then he can not
avail the benefit. This is based on the principle that
he who seeks equity shall do equity and the rule of
equity will not come to the rescue of a wrong doer.
Rule of Option to break
• Illustration:-
1. A has entered in to a lease transaction with B in respect of a
shop premises that the lease is for 15 years, and the same is
to be renewed at the option at the end of 5, and 10th year at
the option of either parties then any of the party may
exercise the option to determine the lease.
to be renewed at as the parties thick fit at the end of 5,
and10th year then it could be done only by the mutual consent
of both the parties and the option to be exercised by both
parties to determine the lease.

to be renewed at the end of 5, and 10th , year at the option
then the option could be exercised only by a lessee and not
the lessor to determine the lease.
Determination of lease.
• The tenancy is basically a contract. Under this the right of
enjoyment of an immovable property is given by one person to
another. The determination of lease speaks about the manner
in which the contract of lease comes to an end, and how the
lessor or the land lord would get back the property which had
been given for the purposes of enjoyment.
• The said determination may be as per contract or other wise.
• They could be categorized broadly as under.
• Efflux of time.
• On happening of a condition.
• Express surrender.
• Merger.
• Mutual agreement.
• Implied surrender.
• Forfeiture.
• On expiration of notice of termination.
As contemplated in section 111 of T.P.Act.
Efflux of time
• Essential elements which are needed to bring about
an end by efflux of time;
1. Definite period is fixed.
2. Efflux or expiry of the said period.
3. Lease is not renewed.
Illustration:
A enters in to a lease for 20 years with B, on 20.08.1978
the said lease is determined on expiry of 20 years.
A enters in to a lease for 20 years with B, on 20.08.1978
the lease deed is renewed for a period of 20 years.
There fore the lease can not be said to have
determined on expiry of 20 years on 20.8.1998,
A enters in to a lease for 20 years with B, on 20.08.1978.
There fore the lease can not be said to have
determined on 20.07.1998
On happening of a condition.
• Instead of any specific period is fixed as to the lease period if
happening of an event is stipulated then on happening of the
said event the lease expires.
• Example.
A enters in to a lease with B in respect of a shop that B could
enjoy the tenancy so long he is alive and there after his death
the lessor shall get the possession back. The lease is to the life
time of B. on the happening of the event of death of B the lease
comes to an end. The death is a condition precedent to
determine the lease.
A enters in to a lease with B in respect of a shop that B and his
heirs could enjoy the tenancy so long he is doing business as a
paint dealer, and if not the lessor shall get the possession back.
The lease is till such time the B and his heirs does the business
as a paint dealer. on the happening of the event of ceasing to
be a paint dealer the lease comes to an end. The dealership in
paint is a condition precedent to determine the lease.
Express surrender
• The lessee by letter or any other mode of
communication if he intimates that he intends to
give up the lease and deliver the possession of
the leasehold property then it would mean that
the lease would be surrendered by express
action.
• The express surrender would take effect
forthwith.
• A surrender of lease hold right in favour of the
lessor may even by means of an agreement.
• On surrendering the leasehold right the lessee
need not pay the rent in future.
Implied surrender.
• Implied surrender may be on account of the conduct of
the parties or due to the operation of law.
• The same by the conduct of parties would mean that
the lessee has relinquished the possession.
• The implied possession by relinquishment would
mean that the lessee yielding up of possession and
the lessor taking the possession.
• The operation of law invariably would mean that when
the lessee even during the subsistence of the lease
enters in to a fresh lease with the lessor. In such an
event the lease is surrendered impliedly.
Merger
• This takes place due to the lower rights getting
merged with a higher rights.
• If the contract or agreement specifically provides
while entering to a mortgage then right of would be
as it is till the mortgage expires and there after it
revives. If no such agreement is there as a general
rule the right of the lessee would merge with the
right of a mortgagee in possession. When a lessee
purchases the leasehold property the right of a
tenancy gets merged with that of a buyer.
• The doctrine of merger is statutorily recognized in
India.
Forfeiture.
• Clause g of section 111 deals with that of
forfeiture.
• When the lessee breaks any of the
express terms or conditions, which gives a
right of re-entry to the lessor.
• Lessor renounces the character and
setting up the title in a third party or
claiming the title for himself.
• When the lessee has been adjudicated as
an insolvent.
On expiration of notice of termination as
contemplated in section 111 of T.P.Act
• When a notice is issued asking the person in
possession of the property to vacate and the
period of the said notice has come to an end.
• A valid termination shall be there as
contemplated under section 106.
• If a lessee continues to be in possession of the
property after termination of the lease his
possession ipso facto would not become a
possession as that of an adverse possession.
Lease and License
There must be a transfer of There need not be a
the right of possession transfer of the right of
possession.
Such right must be an Personal right and not an
interest in property. interest in property.
Permissive right to as per Permissive use at the will
the contract of both the of the transferor.
parties.
To be determined as per the To be determined not as
T.P.Act notice is a must. per the T.P.Act notice is not
a must.
Covered under section 105 Covered under section 52
of transfer of property act. of Easement act
Mortgage.
A mortgage is the transfer of an interest
in specific immovable property for the
purpose of securing the payment of
money advanced or 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 one who creates a mortgage is known as
mortgagor, while the one in whose favour it is
made is a mortgagee. The property is the
mortgaged property. The money is known as
mortgage money.
Mortgage and sale
Mortgage is a transfer of Sale is a transfer of
interest in property as a property for consideration
security.
Ownership in respect of the Ownership in respect of the
property not transferred. property transferred.
Documentation, Attestation Documentation, Attestation
and registration a must and registration is not a
irrespective of value. must less than Rs.100/
By discharging the debt the Question of discharge does
owner i.e the mortgagor gets not arise.
the cloud of debt cleared
Mortgage.
• Age old phenomena.
• Existed in ancient India as ‘adhi’. No distinction between
movable and immovable. In Mohammedan law the concept of
mortgage was there and it was known as ‘bye-bil-wafa’. This
could be translated as a sale with promise
• Mortgage was considered as a pledge in ancient system of law.
• Roman law the earliest type was known as ‘fiducia’ which was a
conditional conveyance. The property would have been
forfeited for non payment of the debt irrespective of value.
• This was followed by ‘pignus’. In this there was a transfer not of
ownership but of possession with out the concept of forfeiture
for non payment of debt.
• Hypothecea is a last stage in the development regarding
mortgages in Roman law.
• Vivum vadium=creditor taking profits towards principle and
interest, mortuum vadium= creditor taking profits towards
interest only.
• The present day mortgage is more a contribution of the
development of equity.
Mortgage.
• The concept of mortgage when compared to the
earlier time is not so rigid and could be said more
liberal.
• It is more soft towards the mortgagor.
• Modern economic market is more based on the
mortgages and hypothecations.
• Mortgages while are in respect of the immovable
properties the hypothecations are with reference to the
movable properties and stock in trade. The
hypothecations coupled with the delivery of
possession of the movable property with the creditor
but no right to enjoy the property given as security with
creditor are also referred to as pledges.
Gopal Vs Parsotam says justice Mohammed
• Mortgage as understood in this country cannot
be defined better than by the definition adopted
by the Legislature in section 58 of the Transfer
of Property Act. That definition has not in any
way altered the law, but on the contrary, has
only formulated in clear language the notions of
mortgage as understood by the writers of the
text books on Indian mortgages. Every word of
the definition is borne out by the decisions of
Indian Courts of Justice.
• (1883) ILR 5 All 121@ 137

Mortgage.
• Mortgage is a transfer of interest in specific immovable
property as a security for the repayment of debt.
• Such an interest is in itself an immovable property.
• Depending on the nature of interest the mortgages are
classified broadly in to 6 groups under T.P.Act.
• Simple mortgage.
• Mortgage by conditional sale.
• Usfructuary Mortgage.
• English Mortgage.
• Mortgage by deposit of title deed.
• Anomalous Mortgage.
Simple mortgage
• Simple mortgage consists of (a) a
personal obligation either express or
implied to pay the mortgage money. (b)
transfer of right to cause the property to be
sold.
• The right transferred to the mortgagee is
not the ownership.
• No possession is given to the mortgagee.
• Binds the mortgagor or his legal
representatives personally to pay the loan
amount.
Mortgage by conditional sale
• This is a type of mortgage where there would be a
condition of sale if the mortgage money is not paid,
and if the same is paid then the mortgage would be
void.
• This type of mortgage was popular in India even
earlier to the enactment of transfer of property act.
• The condition shall be there in the deed itself and not
in a separate deed.
• If the condition is incorporated in a separate
agreement then it is not a conditional sale but a sale
absolute, and the existence of the agreement to be
treated as an independent document or a contract.
Usfructuary Mortgage
• Mortgagee is placed in possession of the property with
a right to enjoy.
• The mortgagee would be entitled to enjoy the rent and
profits until the debt is repaid.
• Appropriation of rents and profits, as per the
agreement between the parties.
• The profits and rents may be adjusted towards the
interest, or
principle, or
principle and interest.
• No specific time limit will be there as the mortgagee
retains the property till the debt is repaid.
• No personal liability as the creditor will have the
property with him as a security.
English Mortgage
• Mortgagor binds himself to repay the mortgage money

on a certain date.
• The mortgagor transfers the property absolutely to the
mortgagee with a reservation
• The reservation would be in the form of retransfer of
the property to the mortgagor upon payment of the
mortgage money.
• The English mortgage differs from usfructuary
mortgage
• The English mortgage differs from conditional sale.
• The English mortgage differs from simple mortgage
English mortgage and simple mortgage.
Property is given absolutely Right to sale is transferred
to the transferee
Mortgagee has an Mortgagee has no

immediate right to enter the immediate right to enter the
property, property,
Right to sell without the No Right to sell without the

intervention of court. intervention of court.
English mortgage and usfructiory mortgage.
Personal liability is not Personal liability is not
there to repay the loan there to repay the loan
Absolutely transferred to Absolutely not
the mortgagee transferred to the
mortgagee, and the
transferee has right to
enjoy
Sue for sale with out the Cannot Sue for sale.
intervention of court with out the intervention
of court nothing could be
done.
English mortgage and conditional sale
Personal liability to pay No Personal liability to
pay
Property is absolutely Property is not
conveyed. absolutely conveyed
Mortgagee has a right Mortgagee has no such
for an immediate right for an immediate
possession possession
sale is converted in to a mortgage is converted in
mortgage to a sale
Remedy for sale Remedy for foreclousure
Mortgage by deposit of title deed.
• Equitable mortgage of English law is of a wider
amplitude than the concept of Mortgage by deposit of
title deed .
• In England it is more an equitable remedy, but in India it
is both an equitable and legal remedy.
• Most popular type in modern days, banking transactions
are the one governed under this category.
• There shall be a debt
• There shall be a deposit of title deed with creditor or his
agent.
• The deposit shall be with an intent to create security.
• Possession of the property would remain with the
mortgagor.
• Registration is not needed.
• In Karnataka stamp duty shall be paid.
Anomalous Mortgage
• Anomalous Mortgage is a mortgage which is not
covered under any of the other type of
mortgages such as Simple mortgage, Mortgage
by conditional sale, Usfructuary Mortgage,
English Mortgage, Mortgage by deposit of title
deed.
• There is no specific definition for this.
• Under this category other type of mortgages
such as balloon mortgage, reversionary
mortgage and what is not specifically defined
could be brought under.
Whether mortgage needs registration
and attestation.
• mortgage needs registration where it is in
respect of a property worth more than
rs.100
• mortgage needs no registration where it is
in respect of a property worth not more
than rs.100 and an equitable mortgage.
• mortgage needs attestation where it is in
respect of a property worth more than
rs.100/=
Rights and liabilities of the
mortgagor
• Rights:
Right to redeem.
Right to inspect the documents at reasonable time.
Right to redeem separately or simultaneously.
Right to recover possession in case of usfructiory
mortgage.
Right to have accounts in case of usfructiory mortgages.
Right relating to the accessions made to the property
when the same is in possession of the mortgagee.
Right to create a subsequent mortgage, subject to the
contract.
Right to create a lease, subject to the contract.
mortgagor
• Liabilities:
In the absence of the contract to pay the municipal
taxes.
To transfer to the mortgagee when there is a duty cast
on the mortgagor that he shall transfer the property to
mortgagee.
To defend the title.
To pay the interest and principle amount as per the
agreement.
Not to cause waste to the property.
Repay the debt amount.
mortgagee
• Rights:
Foreclosure.
For recovery of the money paid.
To bring the property for sale.
To sue for mortgage money.
Renewal of mortgaged lease, in case of mortgage with
possession.
In case of mortgage with possession to enter in to a new
lease.
In case of mortgage with possession, to spend money for
preservation of the mortgaged property from being
destroyed, support the title of the mortgagor, to establish
his own title,
Redeem, Redemption, and Right to Redeem.
• To free the mortgaged property by

payment of the amount due or by fulfilling
some obligations.
• Redemption of mortgage would mean
paying off the principal sum, and interest
due on a mortgage and there by
redeeming the charge.
• Redemption value would mean the
amount which has to be paid redeeming a
security.
Right to redeem is basically a right to get back the
property given as a security.
When the principal money has become due the right
to redeem begins.
When the mortgage money is paid to the mortgagee,
the mortgagor should be put in possession of the
property by the mortgagee.
All the documents which the mortgagee had taken
from the mortgagor should be returned with due
endorsement where ever it is needed.
To pay the cost incurred by the mortgagor to get the
property retransferred to him or any other third party.
Partial redemption is not permissible.
Clog on Redemption
 Right of redemption and right of foreclosure exists in a co-extensive manner.
 Any right of redemption is a valuable right and it can not be taken away or
impaired.
 Even where a mortgagor fails to pay the amount on the date specified the
mortgagor would not loose the right in respect of the property.
 Any provision inserted to prevent, evade, or hamper the right of redemption
is known as clog and the clog of such nature is void.
 Pollock criticizes the doctrine of clog as a rule of anachronistic principle and
shall be done away with as it is not suitable for the modern setup.
 Pollock advocates that it be molded to the modern conditions by limiting it
cases where there is some thing oppressive or unconscionable in the
bargain.
 In India we have not accepted the view of Pollock in toto but the said view
finds recognition in some areas like companies Act with reference to the
debenture.
 The supreme court has held that even in England the position now is not to
make mortgage an irredeemable, and the same applies to India.
REGISTRATION ACT. 1908, CAME INTO FORCE WITH
EFFECT FROM 01-01-1909
IMPORTANT PROVISIONS OF REGISTRATION

SECTION 17 :
REGISTERABLE DOCUMENTS
All the documents (except testamentary documents) related to immovable properties

exceeding value ofRs.100/- are compulsorily registerable;
The important documents which come across;
i) Sale Deed/s,
ii) Gift Deed/s,
iii) Exchange Deed/s
iv) Release Deed/s
v) Partition Deed/s
vi) Mortgage Deed/s
vii) Lease Deed/s (if the period of lease is year and above)
viii) Agreements in respect of immovable properties;
• AGREEMENT OF SALE
• In the Sale Agreement/s there is no conveyance of the property and the contents of
the sale agreement/s are the intentions of the parties and therefore the Agreement of
Sale is not compulsorily registerable;
• However, if the possession of property agreed to be conveyed is delivered to the

intending purchaser/s, as part performance of the Agreement, then, the said Sale
Agreement should be compulsorily registerable;
• Un-registered sale deed/s, gift deed/s are un-enforceable and not admissible in
evidence. But the said documents can be looked into for collateral purpose such as to
prove the possession;
• In a Retirement Deed/s and Dissolution Deed/s, if an immovable properties of retiring

partner is allotted to the other partners, then, the said documents shall be
compulsorily registerable;
• Memorandum of Deposit of Title Deed/s is compulsorily registerable. But, a letter

acknowledging delivery of documents as collateral security is not compulsorily
registerable;
• Sale Certificate issued by the Court are not compulsorily registerable;

• SECTION 18 :
• OPTIONAL DOCUMENTS
• Leases of an immovable properties for any term not exceeding one year;
• Transfer or Assignment of Decree of a less than Rs.100/-;
• Assignment / Extinguish of Right in movable properties;
• Declaration and Extinguition of Right over an immovable property which is

less than Rs. 100/-.
• SECTION 23 :
• TIME FOR PRESENTATION
• The documents will be accepted for registration, within four months from the
date of its execution. Thereafter, penalties will be imposed calculating on
every day's delay to a maximum extent of ten times the amount of proper
registration fee.;
• SECTION 27 :
• REGISTRATION OF WILLS
• A Will may be at any time be presented for registration or deposited (no time
limit is prescribed from date of execution);
• SECTION 28 :
• PLACE OF REGISTRATION
• Every document mentioned in SECTION 17 in so far, as such documents

affects immovable properties shall be presented for registration in the office
of the Sub Registrar, within whose Sub District/s, the whole or some portion
of the property to which such documents relates is situated;
• In the case of Willis and Power of Attorneys, the said documents can be
executed and registered at the discretion of the Executant;
• In the regard to partition deed/s, the documents can be registered in anyone

of the jurisdiction of the properties involved in the partition deed;
• SECTION 30 :
• REGISTRATION OF DOCUMENTS BY REGIS1RAR
• District Registrar/s is entitled to register the documents in respect of the

properties situated within his jurisdiction and transfer the entries to the
concerned Sub Registrar;
• NOW THE STATE GOVERNMENTS ARE CONSIDERING TO MAKE

PROVISION FOR THE REGISTRATION OF DOCUMENTS WITHIN THEIR
STATE IN ANY SUB REGISTRAR'S OFFICE AND THEY ARE WORKING
OUT IN SAID DIRECTIONS;
• SECTION 31 :
• PRIVATE ATTENDANCE
• If the Executant of the document is unable to appear before the Sub

Registrar, then, he/she can request the Sub Registrar with Medical
Certificate for private attendance. On an application, the Sub Registrar will
make necessary arrangements for private attendance. After collecting
additional charges;
• SECTION 32 :
• WI-IO CAN PRESENT THE DOCUMENTS FOR REGISTRATION
• Person/s executing documents;

• Representative/s;
• Power of Attorney Holder/s;
• SECTION 33 :
• POWER OF ATTORNEY SHOULD BE PROPERLY ATTESTED AND

REGISTERED IN RESPECT OF IMMOVABLE PROPERTIES
• Power of Attorney should be properly stamped and attested;
• It is better that the Power of Attorney in respect of the transactions with

regard to immovable properties should be compulsorily registerable. In view
of the same, the Central Government has made an amendment and it is
before the President of India for her assent,
• SECTION 38 :
• PERSONAL EXEMPTION FROM APPEARANCE AT
• REGISTRATION OFFICE
• A person who is unable to appear before registration office;
• A person in jail;
• A Person exempt by law ITom personal appearance;

• SECTION 40 :
• PERSONS ENTITLED TO PRESENT WILLS & AUTHORITIES TO ADOPT
• The Testator or the Executor of the Will (after the death of Testator) are
entitled to present the Will for purpose of registration;
• SECTION 42 :
• DEPOSIT OF WILLS
• The Testator of the Will is entitled to deposit the Willis with District
Registrar. On the death of Testator, the deposited document will be
registered and the certified copy of the said document will be
handed over to the beneficiary of the Will;
• SECTION 49 :
• EFFECT OF NON REGISTRATION OF DOCUMENTS REQUIRED TO BE

REGISTERED
• No documents required by Section 17 of the Registration Act. Shall
• Effect any immovable property comprised therein or

• Confer any power to adopt or
• Be received as evidence of any transaction affecting such property or

conferring such power unless it has been registered
• SECTION 51 :
• REGISTER BOOKS TO BE KEPT IN THE OFFICE OF SUB REGISTRAR
• BOOK - I
• In this book all the registered transactions in respect of immovable properties shall be
entered;
• BOOK - II
• In certain cases, the Sub Registrar refuses to register the documents, when presented by
the parties. The Sub Registrar, shall make an order showing the reason/s for refusal to
register the document. The said order is appealable to the concerned Authorities,
appointed by the Government;
• BOOK - III
• All the registered Testamentary instruments such as Will/s shall be entered in the said
Book;
• BOOK -IV
• All the registered Power of Attorney, Trust Deed/s and Release Deed/s for cash
consideration (without involvement of immovable properties), Indemnity Bond/s and
Declaration/s will be registered in this Book;
• SECTION 71 :
• REFUSAL TO REGISTER
• The Sub Registrar is empowered to refuse to register the documents, if the

documents are not in accordance with Registration Act.;
• SECTION 72 :
• APPEAL PROVISION
• Order passed under Section 71 is an appealable order and the

appeal can be filed before the District Registrar under Section 72.
The order of the District Registrar is final;
• SECTION 78 :
• FEES FOR REGISTRATION, SEARCHES & COPIES

• The Sub Registrar is entitled to collect the fees for registration,
encumbrance certificates and for the certified copies as may be
fixed by respective State Governments;
• IMPORTING DOCUMENTS THAT ARE BEING REGISTERED

UNDER THE REGISTRATION ACT. 1908
• [A] AGREEMENTS
i) Sale Agreement/s
ii) Joint Development Agreement/s
• [B] CONVEYANCE DEEDS

i) Sale Deed/s Section 54 of TP Act.;
ii) Exchange Deed/s Section 118 of TP Act.;

iii) Gift Deed/s Section 122 of TP Act.;
• [C] MORTGAGES
• i) Simple Mortgage Deed Section 58 (b) TP Act.
• ii) Mortgage by Conditional Sale Deed Section 58 (c) TP Act.
• iii) Usufructary Mortgage Section 58 (d) TP Act.
• iv) English Mortgage Section 58 (e) TP Act.
• v) Equitable Mortgage (DTD) Section 58 (f) TP Act.
• vi) Self Redeeming Mortgage
• [D] LEASE DEEDS

• [E] PARTITION DEEDS
• [F] RELEASE DEEDS
• [G] POWER OF ATTORNEYS
• [H] TRUST DEEDS
i) Public Trust (for the benefit of general public)

Ii) Family Trust (for benefit of individual persons)
• [I] WILLS
• There is no stamp duty payable for the will. However, if the Testator
decide to cancel the will, then, he has to pay nominal stamp duty
and fixed registration charges;
• [J] ADOPTION DEEDS
• [K] BONDS
• INSURANCE ACT. 1938
• Earlier Life Insurance Corporation of India was sanctioning housing

loans to its policy holders;
• Presently, the LIC Housing Finance Limited has come into existence
and sanctioning of housing loans is vested with said statutory body.
Hence there is no registration of documents by LIC of India.
However, the LIC has valuable immovable properties and the
properties are allowed to be used by the occupants by entering into
following documents, under Indian Registration Act. on payment of
necessary stamp duty and registration charges;
• i) Registered lease deeds;
• ii) License Agreements;

• SECTION 38 :
• ASSIGN1v1ENT OF POLICIES
• The stamp duty is payable for assignment of Insurance Policies by

the Policy Holders in favour of Transferees. In such cases, stamp
duty is liable to be paid under provisions of Indian Stamp Act. (20
paise for every Rs.1000/-);
• .

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Land laws

• The mode of acquisition and disposal of the property

• Personal laws of Hindus and Mohammedans were

intellectual Non intellectual

• it could be said that the definition

• Ananda contended that the said right is only a sale of goods.

• Sale of a profit a prendre is a immovable

• In the event if Baldwin allows them to remain and Amar makes

• Here the tests to be applied is whether the said fixtures were

testamentary Non testamentary

• Question whether the instrument is valid.

• Notice is a concept based on the principle of

Willful Actual registration

• The constructive notice is the equity which treats a person who

• Constructive notice is the knowledge which the courts imputes

• Illustration. B borrows money from C and deposits with C, by

• Question whether the information received by Z while buying

• Answer: the information received by Z is not in the course of the

Transfer Conditional transfer .

Conditional transfer . Conditional transfer .

 Relinquishment:- an act of abandoning or giving over

 Family arrangement: an arrangement made in a family

 Surrender:- in case of surrender both the persons will have

 Court decree: an order or a decree directing that a property shall be given to

 In favour of official liquidator:- under the provisions of Insolvency Act, or under a

 Grants by government:- any grant made by the Government in favour of a person

• Question: Whether there is a conveyance, and

• Answer: there is a conveyance and it is in

• Question: Whether there is a conveyance and

• Answer: there is a conveyance and it is in

• Question: Whether there is a conveyance and if so of

• Answer: there is no conveyance either of present or

Ramachandra rao, a senior scientist at ISRO, had properties such as a

• “A” a Mohammedan has a wife and 4 sons 3 brothers,

• This is to be looked in to in the

• The agreement gave the bailer a right to enter the premises

• The bailer assigned the right under the agreement by way of

• Question what is the situation with reference to the position as

• Answer: it comes under the category of mere right to transfer

• This is a personal privilege.

• Among Mohammedans this rule is applied on the

• A right of pre emption can not be transferred but a

• Amar owes certain amount to Bhasyam. The amount

• Pension payable to a person for having rendered civil

Where writing Where writing

Transfer Conditional transfer .

Conditional transfer . Conditional transfer .

Conditional transfer . Conditional transfer .

• the condition or the restrain is

Absolute restrain regarding price

Conditional transfer . Conditional transfer .

Conditional transfer . Conditional transfer .

Power of alienate and Power to enjoy without

• On 1.1.1900 “A” executes a deed creating

• B died without any child.

What is accumulation and to extent it is

What is the difference between indian law and

• There are certain limitations in this context.

• They are with reference to