Part I

Ans 1

Section 5 TPA 1882 defines 'Transfer of Property' as

‘an act by which a living person conveys property, in present or in future to one

or more otherliving persons and “to transfer property” is to perform such act’.

Section 6 TPA 1882 provides that 'property of any kind may be transferred,

except as otherwise provided by this Act or by any other law for the time being in

force (properties which cannot be transfered)

(a) The chance of an heir-apparent succeeding to an estate, the chance of a

relation obtaining a legacy on the death of a kinsman, (Spec successionis),

(b) A mere right of re-entry for breach of a condition subsequent

(c) An easement,

(d) An interest in property restricted in its enjoyment to the owner

personally,

(e) A right to future maintenance,

(f) A mere right to sue,

(g) A public office, nor can the salary of a public officer, whether before or

after it has become payable,

(h) Stipends allowed to military, naval, air-force and civil pensioners of the

Government and political pensions,

(i) No transfer can be made (1) in so far as it is opposed to the nature of

the interestaffected thereby, or (2) for an unlawful object or consideration within the

meaning of section 23 of the Contract Act, 1872, or (3) to a person legally

(j) Nothing in this section shall be deemed to authorise a tenant having an

untransferable right of occupancy, the farmer of an estate in respect of which default

has been made in paying revenue or the lessee of an estate under the management of

a Court of Wards, to assign his interest as such tenant, farmer or lessee.

Doctrine of part performance: (Section 53A TPA 1882)

Where the contract as not registered or the transfer following upon the contract

has not been completed according to law and the transferee has in part performance

of the contract, possession of the property or the transferee, being already in

possession, continued in possession in part performance of the contract and has done

some executes in furtherance of the contract, then the transferor will not be allowed

to evict the transferee from the property. The equity recognized in Sec.53A is passive

equity.

In Maddison Vs. Alderson it was held that “In a suit founded on such part-

performance, the defendant is really charged upon the equities resulting from the acts

done in execution of the contract and not (Within the meaning of the Statute) upon

the contract itself, if such equities were excluded, injustice of a kind which the statute

cannot be thought to have had in contemplation, would follow.”

The section has been described by Privy Council, and the Supreme Court in U

N Sharma v. Puttegowdas, as a partial importation of the English equitable doctrine

of part performance. By virtue of this section, part performance does not give rise to

equity, as in English equity in two respects:

(1) there must be a written contract; and

(2) it is only available as a defence.

The following are the essential elements for the application of the doctrine :

(1) There is a contract for the transfer of an immovable property.

(3) The transferee has either performed his part of contract or is

willing toperform the same.

(i) An act of part performance must be an act done in performance of the

contract. Accordingly, acts previous to the agreement do not constitute part

performance, e.g., making of arrangement for the payment of the purchase price.

(ii) The act relied on a performance must be unequivocally, and in their

nature, referable to contract as that alleged.

In Indian Law, the Supreme Court has elaborately considered the requirements

for the application of the doctrine of part performance in Govindarao Vs Devi Salal

AI R (1982) SC 989.
Ans 3

ACTIONABLE CLAIM

Sections 130 to 137 TPA 1882 dealt with actionable claim

Definition: (Section 3)

Actionable claim means a claim to any debt, other than a debt secured by

mortgage of immovable property or by hypothecation or pledge of movable property.

Illustrations

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A,

who, not having received notice of the transfer, as prescribed in Section 131, pays

B. The payment is valid, and C cannot sue A for the debt.

Notice to be in writing, signed: (Section 131)

Every notice of transfer of an actionable claim shall be in writing, signed by the

transferor or his agent duly authorised in this behalf, or, in case the transferor refuses

to sign, by the transferee or his agent, and shall state the name and address of the

transferee.

Liability of transferee of actionable claim: (Section 132)

The transferee of an actionable claim shall take it subject to all the liabilities and

equities and to which the transferor was subject in respect thereof at the date of the

transfer.
Ans 5

Onerous Gift: (Section 127 TPA 1882)

Onerous means ‘burdened’. Onerous gift is a gift is such property which

isburdened with liabilities. It is a gift o non-beneficial property

Subject to the provisions of section 127, where a gift consists of the donor’s

whole property,the donee is personally liable for all the debts due by and liabilities of

the donor at the time of the gift to the extent of the property comprised therein.

Onerous gift refers to a gift that is subject to conditions. These conditions are

imposed on the recipient of the gift. Sometimes, onerous gift takes the nature of a sale

because it involves the element of consideration. Some features of onerous gift are:

1. The onerous gift is subject to certain charges or obligations imposed on the

donee by the donor;

2. The donee is at liberty to accept any transfer of gift which is beneficial to

him/her and refuse any gift which are onerous to the donee.

‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on

the donee. The principle behind this is that he who accepts the benefit of a transaction

must also accept the burden of the same. This section, being an embodiment of a rule

of equity, applies equally to Hindus and Mahomedans. For acceptance of an onerous

gift, acceptance of the gift itself is sufficient; there need not be any separate and

express acceptance of the onerous condition also at the same time. The acceptance of

the gift will carry with it the acceptance of the onerous condition also, even though at

the time of the gift the donee was not aware of such condition, specially where the

onerous condition is of a trifling nature (payment of Rs. 5 as monthly maintenance to

Lease

Introduction:- Lease is not a transfer of ownership in property; it is transfer of

an interest in an immovable property. The interest is the right to use or enjoy the

immovable property. Since ‘interest’ in an immovable property is considered as

property, lease is a transfer of property. However, lease is a transfer of only a partial

interest. It is not a transfer of absolute interest. Lease contemplates separation of right

of possession from the ownership. The interest which is transferred is the right of

enjoyment of property for fixed period on payment of some consideration in cash or

kind.

Definition of Lease:-

Section 105 TPA 1882 defines.

Lease is a transfer of right of enjoyment’ of an immovable property made for

certain period, in consideration of price paid or promised to be paid or, money, share

of crops, service or any other thing of value to be given periodically or on specified

occasions to the transferor by transferee. The transferor is called lessor and the

transferee is called lessee. In common language the lessor is usually called landlord

and the lessee is known as tenant. Price is called premium and the money, share,

service or other thongs so given is called the rent.

Essentials Elements of lease:

1. The parties i.e. transfer and the transferee

2. The demise i.e. right to enjoy immovable property.

3. The term i.e. the duration.

1. The parties: lessor and lessee:- in a lease two contracting parties are

necessary. The parties are lessor and lessee. Every lease is based on an agreement

between two persons competent to contract. Since one cannot contract with himself

therefore one cannot also grant any lease to himself.

Lessor:- the lessor, who transfers the right of enjoyment of his property must

be a person competent to contract and must also have right to transfer the possession

of property.

Minors cannot grant lease, lease executed by minor is void. Minor’s guardian

of property is authorised to grant lease without court’s permission for a term not

exceeding five years or ensuring for more than one year after minor’s attaining

majority.

Lessee:- lessee too must be competent to contract at the date of execution.

Lessee must be of age of majority and must be of sound mind. Lease in favour of a

minor is void because the transfer by way of lease contemplates agreement by minors

to pay rent and other obligations. Lessee may be juristic person e.g., a company or, a

registered firm. But an unregistered firm is not juristic person. Therefore it cannot be

a competent lessee.

2. The demise: Right to Enjoy immovable property:- lease is a transfer of right

of enjoyment in an immovable property. It is not a transfer of ownership; it is transfer

of partial interest. Ownership or absolute interest is aggregate of several interests.

In a sale, gift or exchange absolute interest is transferred. In mortgage only

partial or limited interest is transferred for securing the debts. In a lease too partial or
limited interest namely, the right of enjoyment of immovable property, is transferred.

3. The term: Duration of Lease:- the right of enjoyment must be given to he

lessee for a certain period of time. The period for which the right to use the property

is transferred is called ‘term’ of the lease. The term may be any period of time, longer

or shorter, even for perpetuity. But it must be specified in the deed. The time for

which the right of enjoyment begins and the time when it ends must be fixed and

ascertainable.

4. Consideration: premium or rent:- the contract of lease must be supported with

some consideration. Consideration in a lease may be premium or rent. Where the

whole amount to be recovered as consideration from the lessee is paid by him in lump

sum, (at one time) the consideration is called premium.

MORTGAGE

Where the loan is secured against any movable property, it is called a pledge.

Where the loan is secured against some immovable property of the debtor, it is called

mortgage. In both the cases, whether the property is movable or immovable, the loan

is secured because in default of repayment, the creditors can recover his money from

the property which has been specified as security.

Sections 58 to 99 of Transfer of Property Act 1882, deals with Mortgage. A

mortgage is a transfer of an interest in specific immovable property as security for the

repayment of a debt.

Definition: [Section 56 (a)]

Mortgage is a transfer of interest in specific immovable property for the

purpose of securing loan, an existing or future debt or the performance of an

engagement which may give rise to a pecuniary liability.

Mortgagor, Mortgagee and Mortgage money

The person who transfers the interest in property is called the mortgagor. The person

who receives it is named the mortgagee. Mortgage money is the amount for which the

property is transferred as a security.

Characteristics of Mortgage

Given below are the general characteristics or elements of a mortgage.

a. Interest should be transferred (There must be transfer of an interest.)

specific immovable property)

c. Transfer for securing a debt ( The purpose of transfer of interest must be

to secure payment of any debt or, performance of an engagement which may give rise

to a pecuniary liability)

Types of Mortgage

Mortgages are generally divided into six. They are:

1. Simple Mortgage

2. Mortgage by Conditional Sale

3. Usufructuary Mortgage

4. English Mortgage

5. Mortgage by deposit of title deeds

6. Anomalous Mortgage
 Part B

Ans 3

SALE

Sections 54 to 57 dealt with Sale.

Definition: (Section 54)

Sale is a Transfer of Ownership in exchange for a price paid by promised or

part paid and part provided price means money and money only.

Essentials:

i) The parties

ii) The subject matter

iii) The transfer or conveyance and

iv) The price or consideration

Sale how Made:

Such transfer in the case of tangible immovable property of the value of one

hundred rupees and upwards, or in the case of a reversion or other intangible thing,

can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred

rupees, such transfer may be made either by a registered instrument or by delivery of

the property. A contract for sale does not create any interest in or change in such

property.
Rights and liabilities of buyer and seller: (Section 55)

In the absence of a contract to the contrary, the buyer and the seller of immovable

property respectively are subject to the liabilities, and have the rights, mentioned in

the rules next following or such of them as are applicable to the property sold:

Obligations of Seller:

The seller is bound -

(a) to disclose to the buyer any material defect in the property or in the seller’s

title;

(b) to produce to the buyer on his request for examination all documents of title

relating to the property which are in the seller’s possession or power;

(c) to answer to the best of his information all relevant questions put to him by

the buyer in respect to the property or the title;

(d) on payment or tender of the amount due in respect of the price, to execute a

proper conveyance of the property when the buyer tenders it to him for execution at a

proper time and place;

(e) to take as much care of the property and all documents of title between the

date of the contract of sale and the delivery of the property;

(f) to give, the buyer, or such person as he directs, such possession of the

property as its nature admits;

(g) to pay all public charges and rent accrued due in respect of the property up

to the date of the sale.

The seller is entitled to -

(a) to the rents and profits of the property till the ownership thereof passes to

the buyer;

(b) where the ownership of the property has passed to the buyer before

payment of the whole of the purchase-money, to a charge upon the property in the

hands of the buyer, any transferee without consideration or any transferee with notice

of the non¬payment, for the amount of the purchase-money, or any part thereof

remaining unpaid, and for interest on such amount or part from the date on which

possession has been delivered.

Obligations of Buyer:

The buyer is bound-

(a) to disclose to the seller any fact as to the nature or extent of the seller’s

interest in the property of which the buyer is aware,

(b) to payor tender, at the time and place of completing the sale, the purchase-

money to the seller or such person as he directs:

Rights of Buyer:

The buyer is entitled-

(a) to the benefit of any improvement in, or increase in value of, the property,

and to the rents and profits thereof;

(b) to accept delivery of the property

EASEMENT

Definitions:

Easement is a right which one man can have in the property of another without

being entitled to the ownership or possession thereof.

Easement: (Section 4)

An easement is a right which the owner or occupier of certain land possesses,

as such, for the beneficial enjoyment of that land, to do and continue to do something,

or to prevent and continue to prevent something being done, in or upon, or in respect

of certain other land not his own. Dominant and servient heritages and owners The

land for the beneficial enjoyment of which the right exists is called the dominant

heritage, and the owner or occupier thereof the dominant owner; the land on which

the liability is imposed is called the servient heritage, and the owner or occupier

thereof the servient owner.

Indian Law on Easements:

In India, the term “easement” has a much wider cannotation than it has under

the English or American Law. The Indian Easements Act 1882 deals with the

provisions for easements. A right of easement is a reasonable restriction on the

powers of alienation of an owner of immovable property.

Essentials of Easements:

The essential ingredients of a right of easement are as follows:

(1) There must be two tenements, the dominant and the servient;
 (2) These two tenements must be owned by two different persons;

(3) The right of easement must be possessed for the beneficial enjoyment of

the dominant tenement;

(4) The right should entitle the dominant owner to do and continue to do

something, or to prevent and continue to prevent something being done, in or upon or

in respect of the servient tenement;

(5) That something must be of certain or well defined character and be

capable of forming the subject matter of a grant;

(6) The right claimed as an easement should not be so large as to amount to

an interest in the land itself, as by conferring exclusive use of the property.

Classification of Easements:

1. Affirmative and negative easements.

2. Continuous and discontinuous easement Section 5.

3. Apparent and non-apparent.

4. Permanent and limited Section 6.

5. Subordinate easements Section 9.

6. Accessory easements Section 24.

7. Easement of necessity Section 13.

8. Quasi easement Section 13.

9. Natural rights or natural easements Section 7 and

10. Customary easements Section 18.

The several modes in which easements may be acquired are as follows:

1. Express grant

2. Implied grant (Sections13 & 14)

3. Imparted grant

4. Presumed grant

5. Statutory prescription (Sections 15 to 17)

6. Local Custom (Section 18)

7. Transfer of dominant tenement (Section 19) and

8. Status.

Extinction, Suspension and Revival of Easements: (Sections 37-51)

Easements are extinguished in the following ways:

1. By the dissolution of the right of servient owner in his heritage except when

it is imposed by a mortgagor in accordance with Section 10 (Section 37)

2. By release by the dominant owner expressly or impliedly. It may be released

as to part only of the servient heritage (Section 38)

3. By revocation by the servient owner in exercise of a power reserved by him

in this behalf. (Section 39)

4. On expiration of the limited period, it is for a fixed period or on fulfillment

of the contingent condition, if it is contingent (Section 40)

5. On termination of necessity, if it is an easement of necessity (Section 41)

6. By its being useless (Section 42)

owner is thereby increased and cannot be reduced by the servient owner without

interfering with the lawful enjoyment of the easement (Section 43)

8. By the permanent alteration of the servient tenement by superior force

(Section 44)

9. By the complete destruction of either heritage dominant of servient (Section

45)

10. By unity of ownership i.e. when the same person becomes entitled to

absolute ownership of both the heritages (Section 46)

11. By non-enjoyment for a period of 20 years (Section 47)