Property Law notes

***marked as important by Ma’am

Sale-54-57
Mortgage-58-99
Charges-100-104
Lease-105-117
Exchange-118-121
Gifts-122-129
Actionable claims-130-137

DOCTRINES:
Section 35-Election-to choose the benefit or not choose it
Section 36-apportionment-appropriation of payments
Section 41-Holding out-Ostensible owner-based on rule of estoppel-Once sale made by ostensible
owner, real owner has to respect it
Section 43-Feeding the grant for estoppel-If someone fraudulently represents himself to be a owner,
and later gets that property. He is bound to transfer it to bonafide purchaser. It is an exception
section 6a.
Section 48-Doctrine of priority-He who is earlier in time is stronger in law.
Section 52-Lis pendens-The property to not be transferred till the pendency of the suit.
Section 53-Fraudulent transfer-If a transfer is done with the intent to fraud the creditors, then such a
transfer shall be voidable at the option of the creditors.
Section 53A-Part performance-If the transferor transfers a property for consideration, with a
contract which has been partly performed and the transferee has taken possession, such a right of
possession shall be protected.

Before the TPA, 1882 came into being. The transfer of immovable properties in India was
governed by the principles of English Law.
A Law commission in England prepared a code of transfer of properties in India and was sent to the
legislative council in 1877.
The final bill was passed on17th February 1882 and came into force from 1st july.

Object and scope of the act:

• The act does not cover transfers by operation of law(When court gives properties through
bankruptcy).
• It covers only two forms of transfers.(Inter vivos & testamentary)
• Inter vivos is transfer between two living persons.
• Testamentary is by will.(They are governed by Indian Succession Act, 1925)
• It mainly regulates immovable property(even though it regulates movable property in Chapter II
but SOGA, 1930 regulates movable property.)
• The rule of muslim law prevails over TPA in cases of muslims.
• Limitation period of immovable is 12 years, whereas for movable, it is 3 years.

Stamp duty-Appends legal worth to a property.

Ownersip-Bundle of rights-Own, use+enjoy, transfer of rights.
Right of utendi-Own a property
Right of Fendi- use and enjoy
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Right of Abutendi-Transfer, dispose and destroy

Person includes legal persons as well as association of persons, company, trust.

Hobbes- Properties are those that are dearest to man, his own life and lies, the concern for conjugal
affection and rich and means of life.

Locke-Everyone has a right, in his own person, every individual has a right to preserve his property,
i.e his wife, liberty and estate.

Austin-Property is the greatest right to enjoy excelling servitudes.

The definition of property is narrower sense is that it includes proprietary right of a person and not
his personal rights. Proprietary rights constitute his estate or property whereas personal rights are
his personal status or condition, but in the sense of the land, chattel, shares and debts due to a man
are his property but not his life, liberty and reputation.

Jones v. Skinner-Property is the most comprehensive of all terms which can be used, it is
indicative and prescriptive of every possible interest which a person can have.

Section 3-Immovable Property

Definition under TPA, 1882- It does not include standing timber, growing crops or grass.(Negative
definition)

Definition under Registration Act, 1908-2(6)—It includes land, buildings, hereditary allowances,
right to ways, lights, fisheries or any other benefit to arise out of land or things attached to the earth
or permanently fastened to anything which is attached to the earth but not standing timber, growing
crops or grass.

Definition under Section 3(25) of the General Clauses Act, 1897-It shall include land, benefit to
arise out of land and things attached to the earth or permanently fastened to anything attached to the
earth.

Land-It includes the following elements:

1)A determinate portion of the earth’s surface
2) Column of space above the surface
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3)Ground beneath the surface
4)All objects either on or under the surface of the land in their natural state. For example, minerals.
It also includes lakes, rivers and pond.
5)All objects placed by human agency either or under the surface of land with the intention of
permanent annexation.(For example-Buildings)

Benefits arising out of land:

• All the benefits arising out of land are also considered as immovable property as they cannot be
severed from the land are incidents of it.
• Right to collect leaves, lac from trees, revenue from agricultural land, right to take out minerals,
etc.
• Tangible property-Which have physical existence and are regarded as corporeal properties.
• Intangible property-Which do not have physical existence and are regarded as incorporeal
properties.
• Any right exercised over land, by which one makes profit or gain is known as his beneficial rights
and it would be his intangible immovable property.
• Rights to profits a prendre is benefit arising out of the land and is therefore, immovable property.
• For example, Anand Mehta v. State of Orissa-right to enter a land and carry away fish is
immovable.
• However, when the benefits arising from land are related to standing timber, growing crops, grass,
they are not considered as immovable property.

Shantabai v. State of Bombay(1958): The petitioner’s husband owned a huge bloc of forest.
• To save taxes, he effectuates a deed which is unregistered, in favour of his wife for a
consideration of 26,000.
• Wife was given the right of usufruct for 12.5 years to enter the estate for cutting bamboo,
fuelwood, teak but was prohibited for cutting teak under 1.5 feet.
• She enjoyed this right for 2 years, after which came the MP abolition of proprietary rights(Estates,
Mahal, Alienated lands) Act, which stated that any land beyond 10 acres had to be surrendered.
• The husband gave away this land.
• The wife filed a WPC, for violation for 19(1)(g)-trade, profession.
• She stated that the right was in standing timber, and was entitled to compensation.
• The question was whether the right was in movable or immovable property?
• The court held that the right to enter land for 12 years is profits a prendre.
• Therefore, the right here is of immovable property and since, no deed was there. She was not
entitled to any remedy.

State of MP v. Motilal pratap Singh(1958):

It was stated that any deed which suggests a contractual agreement in relation offers standing
timber, it will be treated as a document related to the transfer of movable property & does not
require registration too.

Quicquid Plantar solo, solo cedit- Things planted

Quicquic Indaedifiatur solo, solo cedit- Things attached
English law exception-Contract to contrary and trade fixtures fixed by tenant.
English law applied to the Indian cases as well but with certain modifications.
This rule only applies, when the person is in unlawful occupation of the land & not a trespasser.

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The first rule is entitled to remove the attachment to undo the damage and bring the property in
previous state.
The second rule is that if he allows the attachment to remain on the land of the owner of the land, so
that the owner derives benefit from it, he is entitled to compensation of the value of attachment or
improvement.

Things attached to the Earth(DOCTRINE OF FIXTURES-Things permanently attached or

fastened to earth):

1)Rooted in earth, as in case of trees and shrubs-All trees are not immovable property, as those
trees which are used as standing timber, i.e which are cut for use as timber fall under movable
property. Wheres those trees which are fruit bearing are considered to be immovable property. If
these fruit bearing trees are to be used for fruits, then they shall be immovable but in case, they are
used as standing timber, then it shall be movable.
Sukry Kyrdeppa v. Goonda Kull Nagireddi- Movability may be defined to be a capacity in a
thing of suffering alteration of the relation of place. Immovablity is incapacity for such alterations.
If a thing cannot change its place without injury to the quality by virtue of which it is, what it is, is
immovable in nature.

2)embedded in the earth, as in the case of wall or buildings-It means the things that rest on their
own weight on earth.
Example-Houses, walls, buildings, etc.
There are certain things which though may be embedded in the earth cannot be called immovable
property.
Addu Achiar v. Custodian Evacuee Property-The test for immovability is whether or not a thing
rests by its own weight on earth and whether it can or cannot change place and be removed from
one place to another place.
For example-ship anchor

3)Attached to what is so embedded for the permanent beneficial enjoyment of that to which it
is attached-When a thing is attached to something embedded in the earth for its permanent
beneficial enjoyment, the thing attached becomes immovable property too.
For ex-Doors, windows, ceiling fans are fastened to walls or ceilings for beneficial enjoyment.
However, electrical appliances, fittings, etc are not considered to be immovable as they are only
temporary and not necessarily for permanent beneficial enjoyment of walls.
If the attachment is for the benefit of itself, then it remains a chattel.

Test 1-Mode of attachment & consequences of its detachment-When can a chattel be considered
as immovable property.
If it causes destruction of property while detachment then it is immovable.
Holland v. Hodgson(1872)-
If an object stands on its own weight, then it is movable.
If an objects does not, then it is immovable.

Test 2- The objective & intention behind installation-The reason & usage for installation.

Test 3- By whom is it attached

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Leigh v Taylor(1902):A tapestry will be treated as movable property.

Bamdev Pangrehi v. Manorma Raj(1974):

• The plaintiff’s husband (late Profulla Kumar Raj) and the defendant were friends.
• According to plaint allegations, the plaintiff’s husband had obtained a possessory mortgage on
1-9-1957 with a view to run a touring cinema in that place.
• The plaintiff’s husband built a temporary cinema structure and erected a temporary pandal in a
portion of the plaint schedule site.
• For the purpose of cinema, plaintiff’s husband bought a cinema projector and the oil engine and
their accessories. The aforesaid cinema projector and the oil engine and their accessories have
been imbedded and installed in the earth by constructing foundations for the purpose of running
the cinema concern known as “kumar touring talkies”.
• Finding no time to manage the cinema concern he entrusted the management of the cinema
concern to the defendant out of trust and confidence in him. The defendant taking advantage of
his position, as being the person in the management, colluded with mortgager and got an
endorsement of discharge made on the mortgage bond dated 1-9-57 and subsequently obtained the
mortgage in his name on 6-3-1961.The plaintiff’s husband filed a suit which decreed ex parte in
Trial court. He died later. Now this suit is in appeal.
• The court said that the license to exhibit the shows was only for a period of 1 years and there was
no guarantee that the owner would have applied for the renewal & authorities would have agreed.
• The court here noted that the name of this business itself suggested that the association of the
business with the place is completely temporary.
• The person who fixed the temporary attachments to the land was not the owner of the land. These
items were removed from the land consequently removed.
• The court held that the issues in question was related to movable property.(Test 1 & 3 was
applied). Hence, the suit was time barred.

Standing Timber:
• Trees, the wood of which is used for making or repairing houses is called standing timber.
• The trees which are used as standing timber are not immovable property under TPA, 1882.
• If a fruit bearing tree is used for fruits then it shall be construed as immovable property, whereas
if it shall be used for its wood, then it shall be considered as movable property.
• It is the intention that matters.
• Shantabai v. State of Bombay-When the owner of the tree is interested in further vegetative
growth of the tree, it is considered as immovable but if intended to cut the tree quite early, the tree
is standing timber.
• A vendor while selling his title to the property, is assumed that he sells the right of vegetation or
growing timber over the land as well unless expressly mentioned. Wheras, just because the right
to use the yield of land is permitted, does not mean that the right of immovable property has also
been granted.

Jagdish v. Mangal Pandey(1986):

The rubric for the difference between standing timber and timber tree was given.
It is the intention that matters to decide.

Banares v. Ghuhi Rai(1956):

Intention is what classifies whether a tree is ST or TT.
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Nandelal v. Ram Bharosey(1955):
Whether Sheesha/ Neem are ST/TT?
If used for industrial purposes, then it is ST.

Growing Crops:
• They are considered as movable property.
• It includes all vegetable growths in the form of fruits, barks or roots.(Mahadev v State of
Bombay)
• Growing crops like wheat, barley, gram are although rooted in earth but are not immovable as
they are cut when they ripe.
• Severable, nutrition from soil, economic activity.
• Intention does not matter.

Manohar Lal Rameshwar Das v. State of MP(1959):

A transfer of right to rear and pluck or take away fruits from trees relates to sales of growing crops
but the right of sowing, cultivating and harvesting crop is a base of the tress, themselves are a right
in immovable property.

Grass:
• Grass is a movable property because it is mainly used as fodder(food for cattle).
• The right to cut grass is immovable because the right is a beneficial interest in the land.
• Intention matters.

Mahabir Prasad v. Inayat Ali:

Grass not made or grown with a view to their immediate severance and removal from soil and
delivery as chattels to the purchaser is an agreement for the sale of an interest in immovable
property, i.e land.

Seeni Chettiar v. Santhanathan:

It was held that if the agreement of sale and purchase of growing crops, growing timber, or growing
fruit, not made with a view to their immediate severance and removal from the soil and delivery as
chattels to the purchaser, then it is a contract for the sale of an interest in land.

Instrument:
• It is a legal document which has not been stamped.
• It is an non-testamentary instrument.
• It does not deal with testamentary transfers(wills, etc.)

Attestation:
• It means to sign and witness any fact.
• A property may be transferred by delivery of possession or by a written document.
• When the property is transferred through a document of transfer or deed, it said to have been
executed by the transferor.
• The transferor is known as the executant.
• It is necessary that two persons are present to witness that the executant has signed the deal.
• This process is known as attestation.
• It ensures that the executant has done so with free consent.
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• The attesting party can also attest on the acknowledgement of execution by the executant himself.
• A person who is a part of transaction cant be a witness but an interested party can be.
• It was not there in the 1882 act, was added in 1926.
• There were two lines of though about this before the addition.
• The English law stated that acknowledgement was not valid attestation and courts in Calcutta and
Madras supported that. Whereas, courts in Bombay & Allahabad favoured this concept of
acknowledgement.
• The privy council in 1917 favoured the English though but this changed after it was incorporated
in the act.
These cases were:
Abdul v. Salman(1900)-Backed English law-Calcutta HC
Sarun jigar begum v barada kanti(1910)
Langa v. Shyam Sundar(1904)-Allahabad HC
Ram Ji v. Parvati Bai(1903)-Bombay HC
Privy Counsel- Shamu Patter v. Abdul Kadir(1913)

Kumar Harish Chandra v. Bansidhar Mohanty:

• A mortagage deed was executed. There were two parties, the mortgager and the mortgagee, but
the money was advanced by a third person, which was given to the mortgager.
• The third person attested the mortgage deed.
• The question was whether it was a valid attestation?
• The court held that the third person was a interested party but was not a party to the transaction.
Hence, it was held to be a valid attestation.

Essentials(Abdul Jabbar v. Venkata Sastri):

1)Two or more witnesses must have seen the executant sign the instrument, or should have received
a personal acknowledgement from him.
2)Each of the witness, should sign the instrument in presence of the executant. It is essential that the
witness should put their signature for the purpose of attesting.(Attestation cannot take place before
the executant has signed the deed). Registrar cannot be the attester.

*Attestation for pardanashin women can only be done by those who know her voice.

Kundan Lal v. Musharraf Begam:

• If the executant was a pardanashin lady who was sitting behind a curtain, she took her hand out
of the curtain and in the presence of witness put her thumb impression on the deed. Thereafter,
her husband and then the witnesses signed the document.
• The privacy council held that the attesting witnesses had signed the deed in the presence of the
executant lady.

Animo Attestandi: It means that the attesting witness has put his signature for the purpose of
certifying that he saw the executor sign the document.

Effect of Invalid Attestation: If a document is not validly attested, it cannot be enforced in court of
law. It makes the document invalid.

Requirement of Attestation:
• It is not necessary to get every document attested.
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• Though, the transfer of immovable property requires attestation.
• No particular form of attestation is prescribed by the act, so the witness may put his signature
anywhere on the deed.
• Illiterate may put thumb impression.
• It can only be signed after the executant has signed the deed.

Notice:
A person is said to have knowledge of a fact.(When a information of relevance is conveyed to
someone.)

Actual or express notice-

A person is said to have actual notice/express notice of a fact if he actually knows it. To consider it
as binding, one will have to look at the fact that whether that notice is definite and information
given about the thing, in respect of which the notice is issued, is correct. It must be definite
information given to or attained in the course of negotiations by person interested in the property. A
person is not bound to attend vague rumours.

Constructive notice-It means ‘knowledge imputed by the Court on a person’. It is a notice which
treats a person who ought to have known a fact, as if he actually knows it. A person has constructive
notice of all the facts of which he would have acquired actual notice had he made those inquiries
which he ought reasonably to have made. In other words, a person may claim that he did not know a
fact, but if the circumstances surrounding him are such, that as a reasonable prudent person, he
ought to have known a fact, he will be deemed to know it.

1)Wilful abstinence-In case of absence of actual notice, a person may constructively and in the eye
of law, be affected with notice of fact when he has wilfully or deliberately abstained to take notice
of a fact which a reasonable man would have taken in the normal cause of life. It is such abstention
from enquiry or search as would show want of bona fides in respect of a particular transaction.
*Rule of presumption-The presumption of the court in such like cases would be that the person
imputed with notice of the court has purposely abstained from making an inquiry into the contents
of the deed with the intention of avoiding taking its notice.

(Maam did not teach this case-Bank of Bombay v. Suleman:S left his house and land to his sons
by his first wife and appointed them as the executors of his will. He bequeathed Rs. 30,000/- to the
sons by his second wife as a charge upon the property given to the sons of first wife by will. The
first wife’s son borrowed from the Bank depositing the title deeds of the house and land as security.
If the Bank had made inquiries as to how the mortgagee derived the title from S, they would have
had cognizance of the will and so of the charge in favour of the second wife’s sons. Therefore, they
were fixed with constructive notice of the charge which accordingly prevailed over the mortgage to
the Bank.

• Therefore in case of wilful abstention from making an inquiry, when there seems any doubt or
suspicion. Here law demands the careful and vigilant conduct on the part of the transferee to
verify the correctness of the title of the transferor, and the possibility of existence of charge over
the property. So if circumstances show that there may be something wrong and situation demands
some probe or investigation by the transferee regarding the true title. If in such cases, transferee
fails to investigate, the law will presume that he hand an inkling of the fact, that something was

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 wrong, but he had a fraudulent determination not to know the truth. Willful abstention therefore
points out at lack of bonafide act as distinguished from mere omission to make inquiries.

2)Gross Negligence-Negligence means carelessness or omission to do such act which a man of

ordinary prudence would do. Doctrine of constructive notice applies when a person, but his gross
negligence would have known the fact. Mere negligence is not penalised. It should be high degree
of neglect.

Hudston v. Viney(1921):Gross negligence does not mean mere carelessness, but means
carelessness of so aggravated a nature as to indicate a attitude of mental indifference to obvious
risk.” It can be described as ‘a degree of negligence so gross that a court of justice may treat it as
evidence of fraud, impute a fraudulent motive to it and visit it with the consequences of fraud’.

Explanations:
1) registration as a notice-where any transaction relating to immovable property is required by
law to be and has been effected by a registered instrument, any person acquiring such property
or any part, or share or interest in such property shall be deemed to have notice of such
instrument as from the date of registration, ‘Thus any person interested in the transaction which
is registered under the provisions of the Indian Registration Act, 1908 cannot plead that he has
no notice of the transfer made under the deed.This means that if an instrument is required to be
registered, then it amounts to notice. In case a document does not require to be registered, its
registration does not amount to notice.

2)Notice of possession-Any person acquiring any immovable property or any share or interest in
such property shall be deemed to have notice of the title, if any, of any person who is for the time
being in actual possession thereof. “Thus in order to operate as constructive notice, possession must
be actual, i.e., de facto possession. It amounts to notice of title in another.

Hunt v. Luck(1902):A owns a property which is sold to B. B finds that the property in prior
possession of a tenant who had paid rent for 2 years. Here, there was wilful abstinence and gross
negligence by B for not checking the property before buying it.

3)Notice by knowledge to agent-A person shall be deemed to have had notice of any fact if his
agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact
is material:Provided that, if the agent fraudulently conceals the fact, the principal shall not be
charged with notice thereof as against any person who was a party to or otherwise cognisant of the
fraud”

Ahmedabad Municipal corporation v. Haji abdul Gafur(1971):

There was an overdue, land revenue tax on a property. A notice was issued on the landowner. (Land
revenue notice-limitation period of 3 years).
No action was done in furtherance to notice for behind the limitation period.
The constructive notice would apply on the government, as they did not act in furtherance to this
and did not post another notice.

Naval Kishore v. Municipal Board of agra was overruled in the above case, which stated that
all municipal purchasers have a duty to calculate the tax due on the property. If not acted in
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accordance to the diligence, the purchaser of the property will be liable to pay the outstanding
amount.

Actionable claims-It is basically unsecured debt+unsecured loan and it is a claim.

Ex-A owes B 1000 rupees, and B owes C the same amount. Here, B may transfer such a claim to C,
who may recover the amount from A.
Exceptions-Mortage, secured debt, Hypothecation-sum outstanding to government, pledge on
mortgaged property.

Section 5-Transfer of property defined-It means an act by which a living person conveys property
in present or in future to one or more living person or himself.
• Transfer of property is an act of conveyance(hand over to other person).
• It is effected through living persons.
• It may be conveyed to one or more living persons or to himself.
• Living persons here include a company, corporation or body of individuals whether incorporated
or not.
• It may be transferred in present or future.

Exceptions-
1)Will
2)Partition-It is the partition of interests of several owners in a joint property and is not transfer.
3)Charge-It only secures payment out of certain properties.
4)Surrender-Merging of lesser interest into greater interest.
5)Family arrangements-arrangement by the family for the benefit of the family.It is an agreement by
members to divide and hold family property separately in accordance with the agreement.
6)Compromise-It is an agreement for settlement of doubtful claims between the parties in respect to
some property.
7)Relinquishment-It is an extinguishment of an right.
8)Easements-No conveyance is done in case of easement, hence it is not a transfer.

Will-N. Ramaiah v. Nagraj S-The single judge held that when a court passes the order of status
quo, the order is a blanket prohibitory order where under the parties would be precluded not only
from affecting transfer but more importantly by necessary implications from doing any act whereby
the situation in relation to the property gets altered. This decision was overturned by the decision
bench of Karnataka HC, which held that no court has powers to make an order to restrain an
individual from his right to execute a will and thereby regulates succession on his death. A will
does not alter, the existing state of the property and does not amount to transfer of property
within the meaning of section 5.

Partition and family arrangements-Mohar Singh v. Devi Charan-Partition and family

arrangement do not amount to transfer under section 5.

Surrender-Natvarlal v Dadubhai-A hindu widow surrendering her rights over a life estate does
not amount to transfer within the meaning of section 5. Surrender is a merger of a lesser estate with
a greater estate. Hence, it does not amount to transfer.

Relinquishment(Wave off)-Muniappa Pillai vs Periasami-If a person in whose favour release is

executed, gets certain rights by virtue of such release, the transaction does not amount to transfer.
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Charge-Bhunuchandra v. Devarika Nath-Charge merely creates a right of repayment and a
property subjected to charge is not considered to as transfer.

Section 6-What may be transferred-Any property may be transferred as per provisions of law
except the following:
a)Spes successions-Suspicious transfer shall not take place till suspicion is cleared.
It includes three elements:
• Chance of heir apparent-Every heir till he inherits from the propositus.
• A relation obtaining legacy on the death of the property holder.
• Other mere possibility of a like nature.
b)re-entry-It can only be done by owner or breach of a contract and cannot be transferred.
c)Easement remains with dominant heritage.
d)Owner can levy restrictions on the property which cannot be transferred.
dd)The right of maintenance is for personal benefit and therefore, cannot be transferred.
E)A right to sue.
F)A public office cannot be transferred under TPA but through operation of law. Ex. Police station
in Wathoda can be shifted near symbiosis through operation of law but cannot be done under TPA.
G)Stipends allowed to military, naval, air forces and political pensions.
h)No transfer can be made for opposed to nature of interest, a unlawful object or consideration as
per section 23 of Indian contract act, or is not a qualified transferee.
I)A tenant, lessee, or farmer cannot assign his interest as a tenant, lessee or farmer to someone.
*Ejusdem Generis-words are known from the company that they keep.
Robinson v. Macdonel-Property which at the date of assignment is either not in existence or not
under the ownership of the granter, such a property is not transferrable under common law.

Grantham v. Hawley-The law does not allow grants except there be a foundation of an interest in
the grantor.Nobody can pass a better title than he already has was held here.

Shamsuddin v. Abdul Hussain-The court held that the daughter can exercise her claim over half of
the property, what she has transferred by way of the relinquishment was her chance to succeed the
property of her father, and the same is expressly void-ab-initio, as mere spes successionis cannot be
transferred.

Abdul Wahid v. Nuranbibi-A mere possibility that rights & interests will be acquired by way of
succession cannot be transferred till the time, the right actually comes into existence.

Re Dairs & Company-Right to re-entry cannot be transferred.

Dhaneshwar Tewari v. Antu Tewari-Easements cannot be transferred independent of dominant

heritage to which it is attached in the nature of Right.

Daniram v. Jamuna Das(Right to enjoyment of property)-It was held that the right to collect
uncertain offerings and worship cannot be trransferred. The rights as a co-sharer of priestly duties
can’t be transferred.

Dhupnath v. Ram Chartira- Personal rights of future maintenance cannot be transferred.

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Krishna Kumar v. UOI-A mere right to sue is not transferable. Although, a decree can be
transferred.

Section 7-Persons competent to transfer-Every person competent to contract and entitled to

transferable property(title of property), or authorised to dispose of transferable property not his
own, is competent to transfer such property either wholly or in part and either absolutely or
conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any
law for the time being in force.
• Age of majority
• Sound mind
• Not disqualified from contracting

Essentials of a valid transfer:

• Property must be transferrable.
• The object or consideration must be lawful.
• The transferee must be competent, I.e he should not be legally disqualified.
• The transfer must not be opposed to the nature of the interest affected thereby.
• The transferor must be competent to transfer.
• It must be made in the prescribed manner or form.

Section 8-Operation of transfer-It provides that unless a different intention is present, a transfer of
property passes all interests which the transferor is then capable of passing in the property and its
legal incidents to the transferee.
It includes land(easements, rents and profits, all things attached to earth), machinery,
house(easements, rents, locks, keys, bars, doors, and things provided for permanent usage),
debt(where the property is a debt or actionable claims, those securities will be legal incidents which
are only for the debt transferred to the transferee), money.
Nemo dat quod non habet-a person competent to transfer any property any property if he has
subsisting right, title or interest in it.
Ram Gopal v. Nand Lal-A transfer passes the entire estate of the transferor when no restriction is
indicated in the deed.

Section 9-Oral transfer-A transfer of property can be made without writing in every case where
such is not required by law.
Two modes:
1)Delivery of possession-The properties may be transferred by delivery of possession only where
writing is not necessary by law. Movable properties, mortgage by deposit of title deeds, immovable
properties below Rs.100 are transferred orally.
2)Registration-When registration is necessary, transfer must be made in writing. In the following:
• Sale of property exceeding Rs. 100.
• Sale of reversion or intangible property.
• Simple mortgage
• Mortgage other than deposit of title deed
• Lease for a term exceeding 1 year
• Gift
• Exchange of property exceeding Rs. 100.
• Actionable claims.

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Restrictions 10-12
Section 10-Condition restraining alienation-Every owner of a property, may transfer his property
either unconditionally or with certain conditions. Transfers which are subject to restrictions are
called conditional transfers. There are conditions precedent or conditions subsequent.
An absolute restraint on the transferee is void as per this section.
For example-A gives a gift of a property to B stating that he may not sell the property further. Such
a sale will be valid but the condition will be void.
When a restraint does not take away power to alienate but restricts to only some extent, it is called
as partial restraint.
Exceptions-Lessor may impose conditions on lessee to not further sub-lease the property. Also, in
cases of married woman(not a hindu, mohammedan or buddhist), when getting a property from the
transferor, a condition of restriction of alienation may be imposed for her benefit.

Muniswamy v. Venkataswamy-Absolute restraint is void whereas partial restraint is valid.

Section 11-Restriction repugnant to interest created-Where on the transfer of property, an

interest is created in the favour of any person, but terms of the transfer direct that such interest
should be executed by him in a particular manner that is unreasonable in the eyes of law, such
conditions shall be declared void.
For example- a shop is sold stating that you may not use this property for selling something whereas
the sole purpose the sale was to buy a shop and use it for the said purpose, such a restriction is void.
Exception-Where such directions were made with respect to a particular piece/part of immovable
property, to secure the enjoyment of another piece of the same property, no right of transferor shall
be affected.
Ex:A sells half of a property to B, and keeps the other half with himself. He puts a condition to not
build a house above 3 stories so that sunlight comes into his house as well. Such a condition is
valid.

Section 12-Condition making interest determinable on insolvency or attempted alienation-

Where property is transferred subject to a condition or limitation making any interest therein,
reserved or given to or for the benefit of any person, to cease on his becoming insolvent or
endeavouring to transfer or dispose of the same, such condition or limitation is void.
Exception-lease

Section 13-Transfer for benefit of unborn person-Where, on a transfer of property, an

interest therein is created for the benefit of a person not in existence at the date of the transfer,
subject to a prior interest created by the same transfer, the interest created for the benefit of such
person shall not take effect, unless it extends to the whole of the remaining interest of the transferor
in the property.
A transfer cannot be made to an unborn child but to a child in womb. Although, for a benefit of a
child a prior life interest may be created in a living person. Before the death of such a living person,
such unborn person should be living so that the interest may be transferred.
Absolute interest-It is further necessary that whole of the remaining interest of the transferor in the
property must be given to the unborn person.

Tagore v. Tagore-A foetus/infant/child in womb is a person in existence for the purpose of making
a gift to an unborn child.

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Section 14-Rule against perpetuity-Perpetuity means continuous or unending transaction. It is the
typing up property for an indefinite period making it inalienable.
No transfer of a property shall create such an interest, which will take effect after the lifetime of one
or more living persons and minority of a person born during that time period.

Reason for rule against perpetuity-No tax for government, inflation.

Contingent interest-The beneficiary who holds the property till majority of minor only has a
contingent interest to the property.
Soundara Rajan v. Natarajan- When the bequest was in favour of daughter of the testator for life
and after that the interest was to go to her children at the age of 21 years and a guardian was
appointed for them. So that their minority terminated at 21 years. It was held that the bequest failed
as offending. The rule against perpetuity because of the date of transfer till the date of testator’s
death, it was certain whether a guardian will be appointed for the children.

Section 15-Transfer to class some of whom come under sections 13 and 14-If, on a transfer of
property, an interest therein is created for the benefit of a class of persons with regard to some of
whom such interest fails by reason of any of the rules contained in sections 13 and 14; such interest
fails in regard to those persons only and not in regard to the whole class.
Ex:A creates life interest in B to hold property till majority of X,Y,Z and unborn child D, now if D
is never born before B’s interest extinguishes, the entire property shall not go back to A but shall be
there with X,Y,Z.

Section 16-Transfer to take effect on failure of prior interest-Where, by reason of any of the
rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of
persons fails in regard to such person or the whole of such class, any interest created in the same
transaction and intended to take effect after or upon failure of such prior interest also fails.
Girish Dutt v. Datadin-A created a life interest in favour B stating that if a boy is born then he
shall get the absolute interest, and is not a boy, then the girl will only get a life interest, and if no
child is born then it shall go Datadin. Now, since a life interest cannot be created for a unborn child
by virtue of section 13 and rule given in section 16, the entire transaction fails and Datadin will not
get the property.

Doctrine of accumulation-Any property over which a life interest has been as income arising from
property has been directed towards a person, and the transferor may ask for profits arising from
land, and to accumulate the same.
Section 17-Rule against accumulation-When the transfer is done with the condition that whatever
income arising from the property shall be accumulated and given to someone. It can be for either 18
vears or lifetime of transferor. Any Direction for accumulation for higher than these periods will be
void.
Exception-1)Payment of debt of transferor or any other person taking any interest under the transfer.
2)Providing maintenance for children, grandchildren etc of transferor or any other person taking any
interest under the transfer.
3)For the preservation or maintenance of the property transferred.

Theluson v. Woodford-The plaintiff bequeathed his property upon a trust to accumulate the income
during the lives of his three sons and of all their descendants who might be living at his death and
after the death of the last survivor of them to be divided among the then living eldest male
descendants of his three sons. The direct was held to be valid and not against rule against perpetuity.
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Section 18-Transfer in perpetuity for benefit of public-The restrictions in sections 14, 16 and 17
shall not apply in the case of a transfer of property for the benefit of the public in the
advancement of religion, knowledge, commerce, health, safety, or any other object beneficial
to mankind.

Section 19-Vested interest-Interest created in favour of a person without specifying the time and
term when it is to take effect on the happening of a certain event (which must happen).
Things that don’t effect vested interest-
1)A prior interest in someone else’s favour.
2)Postponement of Right to enjoyment and accumulation of income until the time of enjoyment
arrives.
3)Conditional Limitation: Condition of transfer of interest to some other person in case a particular
event happens.
*The holder of the property till it goes to the transferee, has all rights of ownership except for
alienation.

Section 20-When unborn person acquires vested interest on transfer for his benefit-Where, on
a transfer of property, an interest therein is created for the benefit of a person not then living, he
acquires upon his birth, unless a contrary intention appear from the terms of the transfer, a vested
interest, although he may not be entitled to the enjoyment thereof immediately on his birth.

Title deed-100%ownership
Vested interest-80% ownership
Contingent interest-0% ownership

Section 21-Contingent Interest(Chance to get a property)-Interest created in favour of a person

which will take effect only on the happening of a specified uncertain event (Which may or may not
happen).
Contingent Interest becomes Vested Interest on happening/not happening of the uncertain event.
It is merely a Promise of interest on fulfilment of the condition.

Soorejemoney v. Denobandhu-A makes a gift in favour of his sons with a condition that if any of
them dies leaving no male heir, his share will be taken by the others, and not the widow or daughter
of the deceased son. The gift creates a contingent interest here.

Section 22-Transfer to members of a class who attain a particular age-Where, on a transfer of

property, an interest therein is created in favour of such members only of a class as shall attain a
particular age, such interest does not vest in any member of the class who has not attained that age.
Ex:A transfers a property to B,C,D,E and keeps a contingency that as soon as they get over 18, a
vested interest shall create in them. Now, even if E dies and B turns 18 before the others, he shall
get his vested interest and others shall follow.

Section 23-Transfer contingent on happening of specified uncertain event-Where, on a transfer

of property, an interest therein is to accrue to a specified person if a specified uncertain event shall
happen, and no time is mentioned for the occurrence of that event, the interest fails unless such
event happens before, or at the same time as, the intermediate or precedent interest ceases to exist.

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Ex:A creates a life interest in B and states that a vested interest shall be created in C, if he graduates.
Now, such a contingency needs to cleared before the death of B.

Section 24-Transfer to such of certain persons as survive at some period not specified-Where,
on a transfer of property, an interest therein is to accrue to such of certain persons as shall be
surviving at some period, but the exact period is not specified, the interest shall go to such of them
as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary
intention appears from the terms of the transfer.

Conditional transfer-25-34

Section 25-Conditional transfer-An interest created on a transfer of property and dependent upon
a condition fails if the fulfilment of the condition:
• Impossible,
• Forbidden by law,
• If permitted, it would defeat the provisions of law
• Fraudulent
• Involves or implies injury to the person or property of another
• Immoral or opposed to public policy by the court.

Section 26-Fulfilment of condition precedent-To be Fulfilled before person takes interest, Has to
be Substantially complied with.

Section 29-Fulfilment of condition subsequent-To be fulfilled after person takes interest, Has to
be complied with in a more strict manner.
*Condition collateral-A gives the property to B, with a condition subsequent that he has to pay
maintenance to his wife for 20 years from the arrears of the property.

Section 31-Condition that transfer shall cease to have effect in case specified uncertain event
happens or does not happen-Subject to the provisions of section 12, on a transfer of property an
interest therein may be created with the condition superadded that it shall cease to exist in case a
specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
(Non-compliance to condition shall end the interest).

Section 32-Such condition must not be invalid-In order that a condition that an interest shall
cease to exist may be valid, it is necessary that the event to which it relates be one which could
legally constitute the condition of the creation of an interest.

Section 33-Transfer conditional on performance of act, no time being specified for

performance-Where, on a transfer of property, an interest therein is created subject to a condition
that the person taking it shall perform a certain act, but no time is specified for the performance of
the act, the condition is broken when he renders impossible, permanently or for an indefinite period,
the performance of the act.
Ex:A gives a property to B, stating that when his kid is born, B shall gives a part of the land for 20
years to his child. Now, such a condition has no time specified. After, B builds a mall on the entire
land as to make it impossible for A’s child to get the land.

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Doctrine of Cy pres-To fulfil the condition as near as possible.
For example, A gives a property to B stating that he has to marry C only with the consent of three
men. Now, if one of the men dies, and B takes permission from the other two, he has fulfilled the
condition as near as possible. This does not hold true for condition subsequent.

Section 27,28,30-Ulterior transfer

Section 27-Conditional transfer to one person coupled with transfer to another on failure of
prior Disposition-Where, on a transfer of property, an interest therein is created in favour of one
person, and by the same transaction an ulterior disposition of the same interest is made in favour of
another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect
upon the failure of the prior disposition, although the failure may not have occurred in the manner
contemplated by the transferor. But, where the intention of the parties to the transaction is that the
ulterior disposition shall take effect only in the event of the prior disposition failing in a particular
manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.
Ex:A transfers a property to B and creates a prior disposition stating that if he marries before 25 the
property shall go to C, which is the ulterior disposition.
*In cases of contingent transfer, the property flows back to the original transferor or his heirs.

Section 28 states that a transaction under section 27 shall be subject to rules contained in 10,12 21,
22, 23, 24, 25 and 27.

Section 30- Prior disposition not affected by invalidity of ulterior disposition-If the ulterior
disposition is not valid, the prior disposition is not affected by it.

Section 34-Transfer conditional on performance of act, time being specified-If performance of a

condition whether precedent or subsequent, is prevented by a person interested in its non-fulfilment,
the delay is excused or the condition is discharged
*Nullus Commodum Capere Protect De Injuria Sua Propria: No man can take advantage of his own
wrong.

***Doctrine of election-No person cannot choose to approbate(approve) from a transaction &

reject to reprobate(disapprove) from the same.
Section 35-Election when necessary-Where a person professes to transfer property which he has
no right to transfer, and as part of the same transaction confers any benefit on the owner of the
property, such owner must elect either to confirm such transfer or to dissent from it; If he dissents -
he will have to relinquish the benefit back to transferor.
Ex:A, not being the actual owner of B’s property, offers B 5 lakh rupees to transfer the property to
C. Over here, if B takes the money, he needs to transfer the property, if he does not wish to transfer
he has to return the money.
Exception-benefit in lieu of property only needs to be relinquished.

When election is not necessary-

• When a person takes the benefit in one capacity and in another capacity dissents.
• When a person is taking no benefit directly, but deriving a benefit indirectly.

Mode of election-It can be done in express or implied from conduct. When it is made by the owner
in express words, it is called as express election.
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Implied election(It’ll be assumed that the person has elected due to his conduct)-1)Expiration
of 2 years from the date of transfer of the benefit.
2)Exhaustion of the benefit/impossibility.
3)At the option of the transferee, election can be expedited.

Suspension of election-If the owner of the property suffers from such disability, the election shall
be postponed till such date.

Rights of a disappointed transferee under election-In cases where the owner elects to relinquish
the benefit and not to transfer the property, then the transferee gets disappointed and hence are
called disappointed transferee. He is entitled to the amount or value of the property attempted to be
transferred to him in the following cases:
• Where the transfer is for consideration.(C gives money to A, to ask B to transfer the property to
C).
• Where the transfer is gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer.(the transferor’s representatives have to make good
of the amount to the transferee)
• In the third scenario, instead of compensation, the transferor may be able to make a new transfer.

Valliammai v. Nagappa-A person bequeath certain property of HUD in favour of the coparcener,
which the coparcener was already entitled too. The SC held that there is no valid benefit which is
being duly transferred to the person here as the right already existed in his favour.

Section 37-Apportionment of periodical payments determination of interest of person entitled-

In the absence of a contract or local usage to the contrary, all rents annuities, pensions, dividends
and other periodical payments in the nature of income shall, upon the transfer of the interest of the
person entitled to receive such payments, be deemed, as between the transferor and the transferee,
to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days
appointed for the payment thereof.
For ex:A leases property to B and sells property to C on 15th , A has been receiving rent of rs. 20k.
Now, both A and C will get half of the rent each in the next month, after which the rent will divert to
C entirely.

Section 38-Apportionment of benefit of obligation on severance-When, in consequence of a

transfer, property is divided and held in several shares, and thereupon the benefit of any obligation
relating to the property as a whole passes from one to several owners of the property, the
corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be
performed in favour of each of such owners in proportion to the value of his share in the property,
provided that the duty can be severed and that the severance does not substantially increase the
burden of the obligation; but if the duty cannot be severed, or if the severance would substantially
increase the burden of the obligation the duty shall be performed for the benefit of such one of the
several owners as they shall jointly designate for that purpose:
Provided that no person on whom the burden of the obligation lies shall be answerable for failure to
discharge it in manner provided by this section, unless and until he has had reasonable notice of the
severance. Nothing in this section applies to leases for agricultural purposes unless and until the
State Government by notification in the Official Gazette so directs.

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Ex:A leases property to B and sells property to C,D,E with C paying 60 percent of money and D,E
paying 20 percent each. The rent given by B shall be divided in the following ratio as well. B
should be given notice that property has been sold to new owners and rent to be given to them.

Section 39-Transfer where 3rd person is entitled to maintenance-If an immovable property is

transferred and a 3rd party has right to receive maintenance or a provision for advancement or
marriage from that immovable property or its profits.
Such Right can be enforced against the transferee if:
1)Transferee had notice
2)Gratuitous transfer

Section 40-Burden of obligation imposing restriction on use of the land-A 3rd Person has a right
(which is not an interest in another's immovable property or an easement) to restraint over a
property in 2 situations:
1. For the more beneficial enjoyment of his own immovable property.
2. Under an obligation annexed to ownership via Contract.Covenant
Covenant:A document signed by parties that regulates transfer with property.
Originator:The first owner who imposes covenant.
Positive covenants:The impose performance of an action upon the owner of the property and
transferee as well.
Negative covenant-It restricts usage of the property and full enjoyment.
1st transfer-Both +ve and -ve covenants apply(notice is immaterial).
2nd transfer(with consideration)-if notice is not there, then -ve negative covenant will not apply.
2nd transfer(without consideration)-negative covenant applies, event without notice.
Ex:A is the original transferor who levies a covenant that a building above three stories cannot be
built, and transfers it to B. B is bound by the covenant. When B sells it to C for money, and B does
not give C a notice of the covenant, such covenant shall fail.
*Lease is an exception, as both negative and positive covenants apply.

Tulk v. Moxey-A covenant was levied by Tulk that no building should be built on the garden. After
many transfers, the property came into the ownership of Moxey, who violated the covenant. It was
held that Moxey cannot violate the covenant.

Section 41-Transfer by ostensible owner-

Ostensible owner-Not a permanent owner through his conduct but is not the real owner.
• He does not have a legal duty.
• The real owner gives him implied/express duty.
• Litigation comes into being when-transfer dispute as to lease, mortgage, alienation, sale.
• Parties-Real owner, ostensible owner, bonafide transferee.
• Doctrine of holding out(based on rule of estoppel)-the real owner holds out when the ostensible
owner acts as the real owner, then he shall hold out post the sale as well

Essentials-
1)Express or Implied consent to allow a person to act as ostensible owner.
2)Ostensible owner cannot be the one who acts in a illegal manner.
3)The bonafide transferee shouldn’t be the one who is acting in a illegal manner. The ostensible
owner should conduct himself as the owner of the property.
4)For valid consideration
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*Gratuitous transfer cant be transferred by ostensible owner. It has to have consideration involved.

Benami transactions-The person who purchases the property and pays the price for it, does not
purchase the property in his own name but in the name of any other person. It was used to evade
tax, etc. The benami transaction(prohibition) act,1988 makes the benamidar or ostensible owner as
the real owner of the property.

Jaydayal Poddar v. Bibi Harza-SC stated that it depends on case to case basis, to determine who
is the ostensible owner & real owner.
The guidelines were:
1)Who holds the possession.
2)What is the motive behind the benami transaction.
3)Who received the consideration
4)Who holds the title deed
5)Who takes the major decisions in the property
6)Who paid the purchase money
SC held that the payer of the source money is the one who determines this in benami transactions.

Ramakant Jain v. MS Jain-The burden of proof to prove that a transaction is benami is upon the
person who claims to be a real owner.

Abdullah Khan v. Burdi- Minor does not qualify as ostensible owner.

Ram Kumar Koondoo v. MacQueen-Alexander had purchased an immovable property in Calcutta

in name of Bunoo Bibee who was his mistress. MacQueen was one of the two children born to him
by this mistress. The sale deed was in the name of Bunoo Bibee, she also used to manage the
property. Later, during the life of Alexander, she sold the property to Ram Dhone, the father of Ram
Kumar. After the death of Bunoo, MacQeen filed a suit against Ram Dhone, claiming that the
grounds that his father had left a will in her favour and that her father was the real owner and not
Bunoo,who was merely a benamidar. Ram Dhone pleaded that he was a bonafide purchaser without
notice of the benami title of the seller. Calcutta HC rules in favour of MacQueen. Privy council
reversed the judgement and held that assuming Alexandar was the real owner and Bunoo, merely a
ostensible owner since Alexander had allowed herself out as real owner, he or his representatives
could not recover upon this fact unless they had a direct notice.Any third person who has gained
title of property in good faith must be protected and the onus is on the real owner to prevent such
transfer.

Sheshumula M. Shah v. Syed Abdul Rashid-Due to natural equity, this section stands in
contradiction/exception to the rule of Nemo dat quod non habet which essentially means that "a
person cannot transfer a better title than he himself has'.

Section 43-Transfer by unauthorised person who subsequently acquires interest in property

transferred-Where a person fraudulently or erroneously represents that he is authorised to transfer
certain immovable property and professes to transfer such property for consideration, such transfer
shall, at the option of the transferee, operate on any interest which the transferor may acquire in
such property at any time during which the contract of transfer subsists.The Transfer should be for
consideration and the transferee should have acted in good faith and without notice.

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Doctrine to feeding the grant by estoppel-If somebody draws a right from you, it should be vested
in the other person as it vests in you.

Essentials-
• The person transferring the property, shall be unauthorised to do so.
• Transfer should take place for consideration.
• Section 43 can only be invoked at the option of the transferee.
• Section 43 can be invoked as remedy only when the contract subsists.(Contract should not be time
barred and any other remedy should not be invoked)
*English law-a decree as a remedy for execution as soon as the property is received by the
unauthorised person.
• Transfer should not be going against law or public policy.
*Gift and gratuitous transfers are an exception.

Jumma Masjid Mercara v. Kodi Maniandra Deviah-6(a) v. 43(it is an exception to 6(a))

There were three grandsons who had a chance to inherit a property, transferred it to the defendant’s
predecessors. When the actual owner died, the property came into the hands of the grandchildren.
Another party, i.e the masjid contended that the actual owner’s wife had gifted us the property. The
masjid contended that as per 6a the transfer done was void. Although, the court stated that 43 is an
exception to 6a, and if all the essentials of 43 are being met, then 6a will not apply. Property was
given to Kodi.

Sears v. Pickles-When the representation to transfer the property transfers it & afterwards he gets
the authority by any reason or circumstance then such a situation defines the doctrine of feed the
grant of estoppel. If such a representation never gets the authority to transfer the property in those
cases, this doctrine cannot be invoked.

Dharen Maheshwari v. Prem Kumari-1 sister of the two shows authority to conduct sale & who
has the authority to make transfer deed solely operation of law, once she receives such authority, she
would be required to honour the transfer.

Section 44,47-Transfer by co-owners

Section 45,46-Joint transfers

Section 44-Transfer by one co-owner-If one of the legally competent co-owners transfers his share
or interest of an immovable property, the transferee shall acquire such share and interests as would
be necessary to give effect to that transfer.
Transferee will get Transferor's right to joint possession, common areas, part enjoyment of property
and even the right to enforce a partition but subjected to the conditions and liabilities.
Exception-dwelling house(family house)

Section 47-Transfer by co-owners of share in common property-If several co-owners of

immoveable property transfer a share without specifying that the transfer is to take effect on any
particular share or shares of the transferors then:
• If shares are equal among the transferors, then the transfer shall take effect equally.
• If shares are unequal among the transferors, then the transfer shall take effect in proportion to
their shares.

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 Section 45-Joint transfer for consideration-When an immovable property is transferred for
consideration between two or more persons and payment is made:
From a common fund: The rights and shares shall be distributed between them in proportion to
their entitlement of that fund.
From separate funds: The Interests in such property will be in proportion to the shares of the
consideration which each of them paid.
Exception-contract to contrary.

Section 46-Transfer for consideration by persons having distinct interests-When immoveable

property is transferred for consideration by persons having distinct interests the transferors are
entitled to share in the consideration:
• Equally, where their interests in the property were of equal value
• Proportionately to their interest, where such interests were of unequal value.
• Exception-contract to contrary.

Section 48-Doctrine of priority-When transferor creates rights in the same property to different
people, rights which cant be exercised together to their full extent. The rights which are created
earlier are given priority over the right which are created later.
Ex: A mortgages property to B and sells it to C. B has priority over C.
Not applicable-
• Prior transfer is invalid.
• Prior transfer deed is unregistered.
• Subsequent transfer takes place by order of court
• Subsequent mortgage involves fraud, misrepresentation or negligence of prior mortgagee
• No contract to contrary.

Qui prior est tempore potoir est jure-he is who earlier in time is stronger in law.

Section 49-Transferee’s right under policy-Where immoveable property is transferred for

consideration, and such a property is insured against loss or damage by fire, the transferee in case of
such loss or damage, in absence of a contract to contrary, may take money from transferor who
receives it under such a policy.

Section 50-Rent bona fide paid to holder under defective title-No person shall be chargeable
with any rents or profits of any immoveable property, which he has in good faith paid or delivered
to any person of whom he in good faith held such property, notwithstanding it may afterwards
appear that the person to whom such payment or delivery was made had no right to receive such
rents or profits.
Ex:A leases property to B and later sells it to C. B thinking A to be the owner gives the rent. Later,
C cannot sue B for the rent.

***Section 51-Improvements made by bona fide holders under defective titles-When the
transferee of immoveable property makes any improvement on the property, believing in good faith
that he is absolutely entitled thereto, and he is subsequently evicted there from by any person
having a better title, the transferee has a right to require the person causing the eviction either
1)to have the value of the improvement estimated and paid or secured to the transferee,
2)or to sell his interest in the property to the transferee at the then market value thereof, irrespective
of the value of such improvement.
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The amount to be paid or secured in respect of such improvement shall be the estimated
value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee
has planted or sown on the property crops which are growing when he is evicted therefrom, he is
entitled to such crops and to free ingress and egress to gather and carry them.
Ex:A thinking he is the real owner(good faith) of the property, plants trees with mangoes. B comes
and evicts him. A is entitled to collect fruits and be paid for the cost of plantation of trees.

Section 52-Transfer of property pending suit relating thereto(Lis pendens)-

Ut Lite Pendente Nihil Innovetur- nothing new should be introduced or created during the pendency
of litigation.
The doctrine states that no property must be transferred when a lawsuit related to it is pending.
*Transfer pendente lite is not void. The transfer will remain on hold till the decree.
For ex: A files a suit regarding possession of a property to B. During the course of litigation, if B
sells the property to C, and A wins the suit. A will have to transfer the property to C.
Essentials:
1)Competent court(Pending suit-from date of institution to final decree)
2)Suit must not be collusive
3)The suit must be be directly & specifically related to immovable property
4)The property in dispute must transferred or dealt with any other part to the litigation.
5)Litigation must be bonafide.
6)Alienation must affect the rights of the other party.
Exception-Transfer by order of court

Prabhakar v. Antonio-A transfer dealing by a party during the pendency of the suit is not ipso-
facto-void. It only cannot effect the right of any other party to the suit under any decree or order,
that may be made in the suit or proceeding.

Amarnath v. Deputy Director of Consolidation-Property party for lis pendens will be anyone
who’s share is getting effected.

Fayaz Hussain Khan v. Parag Narain -A mortgagee’s suit to enforce his mortgage, but before the
summons were served, the mortgagor effected a subsequent mortgage. The prior mortgagee
continued his suit & obtained a sale order from the court. It was held that the sale order
extinguished the subsequent mortgagee’s right to redeem prior mortgage.

Samarendra Nath Sinha v. Krishna Kumar Nag-It was held that under doc. of lis pendens, the
purchaser pendent lite is bound by the result of the litigation on the principle that since the result
must bind the party to it, so it must bind the person deriving his right title & interest from or
through him.

Section 53-Fraudulent Transfer-Transfer of immovable property if fraudulent when it is made-

1)With intent to defeat or delay the creditors of the transferor shall be voidable at the option of
those creditors. Exception-insolvency, transferee in good faith & consideration.
A suit instituted by a creditor (which term includes a decree-holder whether he has or has
not applied for execution of his decree) to avoid a transfer on the ground that it has been made
with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or
for the benefit of, all the creditors.

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2)Without consideration with the intent to defraud a subsequent shall be voidable at the option of
such transferee.

Musahar Sahu v. Hakim Lal-Can a creditor be given preference to other creditors?-Musahar

Sahu and Hakim Lal both were creditors of Krishan Vinod, Krishan Vinod transferred the whole
property to Hakim Lal to set off his debt. Musahar Sahu filled case against Hakim Lal claiming that
the transfer was void under 53(1) and was done to defeat him as a creditor.
It was held that the sale defeated Musahar Sahu's interest but it was for adequate consideration and
in satisfaction of a genuine debt and as the debtor reserved no benefit for himself, it was not a case
of one creditor being performed for the purpose of detriment to another and the sale was not
voidable under section 53.

Section 53A-Part Performance-

Essentials:
1)Transfer of imm. Property for consideration
2)Transferee taking possession wholly or partly
3)Transferee is willing to perform the contract or has already performed the same.
*Used as a shied in India and not a sword like England.
*Burden of proof on transferee.

The transferor will still be the real owner until and unless the ownership is transferred through a
REGISTERED deed.
Proviso: nothing in this section shall affect the rights of a transferee for consideration who has no
notice of the contract or of the part performance.
Protection under this doctrine can only be used as a shield against the transferor for protecting your
possession and not against 3rd parties who don't have privity to the contract.

Juharmal v. Kapoor Chand-It has been held that 53A does not give any right to the transferee on
which he could fight the suit as plaintiff, thus the right is only available to the defendant.

Pramod Kumar Das v. Dantmara Tea Co.-There was a company who sold their tea estate to SN
Roy, and Roy paid 1st instalment and got possession of the estate. Later, the company sold this tea
estate to Dantmara Tea co., and SN Roy sold the tea estate to Pramod Kumar Das. The court stated
that SN Roy only had possession, and therefore he could not transfer the property to someone else.

Sale(54-57)
Section 54-Sale defined-Sale is an unequivocal transfer of ownership, which transfers the best title
to the buyer, price paid or promised or part-paid and part-promised.

Sale how made-In case of sale of tangible immovable property worth more than rs.100, or
reversion, or any other intangible thing, can only be done through a registered instrument.
In case of tangible property worth less than rs.100, it can be through registered instrument or
delivery of property.
Delivery takes place when the seller provides the property in the possession of the buyer or any
person, to whom he directs.

Contract for sale-A contract for the sale of immoveable property is a contract that a sale of
such property shall take place on terms settled between the parties.
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It does not, of itself, create any interest in or charge on such property.

Contract of Sale Contract for Sale

Sale deed Agreement that for transfer of property a sale

deed will be instrumental in the future.
Lesser possibility of breach. Greater possibility of breach.

Vested and contingent interested are created in Vested interest may not be created but
the legal portion of the buyer. contingent may be created.

Necessary elements to constitute a sale:

1)Monetary consideration
2)Transfer of ownership
3)Parties-seller & buyer
4)Property should be there
5)Property should be in existence
6)Delivery of possession
7)Modes of transfer have to be specified.(Registration or delivery in case of worth below rs.100)
Exception-s30 of UP Civil laws, reforms act, 1976 provides that the value of Rs. 100 and upwards
shall be read as if it is not there)

Jagnath v. Jagdish Rai-There was an agreement to sell an immovable property with A.

Subsequently, the owner entered into an agreement to sell the property with B. It was held that the
subsequent purchaser, for value, without notice of earlier agreement. The SC held that A, with
whom, the owner made the first agreement of sale, would not be entitled to the relief of specific
performance against the subsequent purchaser. The remedies available to A are that he may sue the
owner of the property for damages. If the purchaser had paid some price, he may acquire a charge,
that he is entitled to recover.

*Contract of sale is an executed contract, whereas agreement to sell/ contract for sale is an
executory contract.

***Section 55-Rights & liabilities of seller and buyer-

1)Seller’s liabilities(before sale):
• To disclose material defects
• To produce title deeds for inspection
• To answer questions as to title
• To execute a proper conveyance
• To take care of property and title deed
• To pay public charges and rent accrued
2)Seller’s rights(before sale):
• To take rents and profits
3)Buyers’ liabilities(Before sale):
• To disclose facts materially increasing value of property.
• To pay the price.

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4)Buyer’s rights(Before sale):
• To charge for price prepaid.

Post sale:
1)Seller liabilities:
• To give possession
• Implied covenant for title
• To deliver title deeds on receipt of price.

2)Seller’s rights:
• Charges for price unpaid.

3)Buyer’s liabilities:
• To bear loss to the property.
• To pay out goings-public charges and rents

4)Buyer’s rights
• Benefits of increment.

V. Pechimuthu vs Gowrammal-A suit for specific performance of an agreement to repurchase the

land was filed. The agreement provided that the original owner must get the sale deed registered
after 5 years & before the expiry of 6 years. From the date of original sale, the consideration to be
paid were stipulated. There were further stipulations, that the seller will not receive the
consideration before 6 years & there was nothing in the agreement, which restricted the right of
repurchase, if payment is not made in time. The contract was made & executed by both parties. The
contract was only enforceable only as an ordinary contract of sale & it did not confer any option for
the re-purchase.

Bishandas v. Hazi Fazal-A asked B to produce a title deed of a particular property. If B does not do
it, it is a valid ground for repudiation of contract.

Summers v. Griffiths-An old lady contracted to sell a property at a much lower price, believing
that her rights in the property were not absolute. The buyer was aware that the lady’s interest in the
property was perfect and absolute, but he did not disclose it to the lady. He was held liable for fraud,
and the sale was set aside.

Section 56-Marshalling by purchaser-If the owner of two or more properties mortgages them to
one person and then sells anyone of those properties to another person, the buyer is entitled to claim
that the mortgage debt be satisfied out of the properties not sold to him.
• It is based on the principle that when a person purchases some property free from encumbrances,
his absolute interest should not be prejudiced.
• It can only be exercise between the buyer and seller.
Ex:A mortgages property X,Y,Z to C. Later, he sells property X to B, free from encumbrances.
Under marshalling, B shall be entitled to insist that C should realise his debts first from properties Y
and Z which are unsold. If after exhaustion of Y and Z, the debt still remains, then C can draw from
X. If C proceeds against B, for property X, then B can recover such amount from A.

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Section 57-Provision by Court for incumbrances and sale freed therefrom-(a) Where
immoveable property subject to any incumbrance, whether immediately payable or not, is sold by
the Court or in execution of a decree, or out of Court, the Court may, if it thinks fit, on the
application of any party to the sale, direct or allow payment into Court,—
(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a
determinable interest in the property—of such amount as, when invested in securities of the Central
Government, the Court considers will be sufficient, by means of the interest thereof, to keep down
or otherwise provide for that charge, and
(2) in any other case of a capital sum charged on the property—of the amount sufficient to meet
the incumbrance and an interest due thereon. But in either case there shall also be paid into Court
such additional amount as the Court considers will be sufficient to meet the contingency of further
costs, expenses and interest, and any other contingency, except depreciation of investments, not
exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons
(which it shall record) thinks fit to require a larger additional amount.
(b) Thereupon the Court may, if it thinks fit, and after notice to the incumbrance, unless the
Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the
property to be freed from the incumbrance, and make any order for conveyance, or vesting order,
proper for giving effect to the sale, and give directions for the retention and investment of the
money in Court.
(c) After notice served on the persons interested in or entitled to the money or fund in
Court, the Court may direct payment or transfer thereof to the persons entitled to receive or
give a discharge for the same, and generally may give directions respecting the application or
distribution of the capital or income thereof.
(d) An appeal shall lie from any declaration, order or direction under this section as if the same were
a decree.
This section gives the procedure for discharging an encumbrance on a property which is not sold
free from an encumbrance. This can only be done through a court’s order. Court cannot act sue
Moto. The power given to the court under this section is intended to facilitate the alienation of
encumbered estates by relieving the land from encumbrance and substituting for the land another
form of security.

58a-Mortgage-A mortgage is the transfer of an interest in specific immoveable 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.
Mortgager-the one who gives the property for loan.
Mortgagee-the one who takes the property till the loan is repaid.
Mortgage money- the principal money and interest of which payment is secured for the time being.
Mortgage deed-Instrument though which this is effectuated.

Essentials:
1)Parties-mortgager & mortgagee
2)Transfer of interest-creating limited interest in favour of the mortgagee.
3)Specific immovable property
4)Purpose of mortgage-to secure repayment of debt
5)Consideration

B. Jayashankarappa v. DS Gulwadi-Mortgage is not a transfer of absolute ownership right. In

mortgage, some rights are given to the mortgagee, which others remain with mortgager.
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58b-Simple mortgage-Where, without delivering possession of the mortgaged property, the
mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly,
that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be
necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the
mortgagee a simple mortgagee.
• Possession is not transferred.
• Mortgager binds himself to pay money as agreed.
• Property only to be sold if the mortgager is unable to pay the mortgage money.

58c-Mortgage by conditional sale-The mortgager ostensibly sells the mortgaged property-

• On the condition that if the mortgager defaults in payment of mortgage money on a certain date,
the sale shall become absolute.
• on condition that on such payment being made the sale shall become void, or
• on condition that on such payment being made the buyer shall transfer the property to the seller.
*A sale deed with a mortgage clause is made.

58d-Usufructuary mortgage-Where the mortgagor delivers possession of the mortgaged property

to the mortgagee, and authorises him to retain such possession until payment of the mortgage-
money, and to receive the rents and profits accruing from the party or any part of such rents and
profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or
partly in lieu of interest or partly in payment of the mortgage money.
• Possession is transferred.
• Mortgagee to recover mortgage money, through profits a prendre, and rent as well.

58e-English mortgage-Where the mortgagor binds himself to re-pay the mortgage-money on a

certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a
proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed,
the transaction is called an English mortgage.
• Mortgager transfer property to mortgagee absolutely.
• Re-transfer to mortgagor upon payment of mortgage money as agreed.

58f-Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the
towns of Calcutta, Madras, and Bombay, and in any other town which the State Government
concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor
or his agent documents of title to immoveable property, with intent to create a security
thereon, the transaction is called a mortgage by deposit of title-deeds.

58g-Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by

conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of
title-deeds within the meaning of this section is called an anomalous mortgage.

Section 59-Mortgage when to be by assurance(mode of transfer)-1)Registration if more than

100
2)Delivery of possession
3)Deposit of title deeds
*When it is not registered, then it becomes a charge under section 100 but it may be used to
establish a personal liability.
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Rights and liabilities of mortgager(60-66):

• Section 60-***Right of redemption-Once the mortgage period gets over, and the mortgage debt
has been paid, mortgager has a right to redeem his property. The suit is called the suit for
redemption.Exception-court order.
• Redemption is legal right and it cannot be destroyed by any agreement.
• Mortgagee has to give all the documents relation to mortgage transaction to the mortgagor such as
mortgage deed, property papers.
• Mortgagee has to give possession of the property to the mortgagor
• Right of transfer to a third party instead of re-transference to himself.( Section 60A)
• Right to inspection & production of documents.(Section 60B)
• Right to Accessions(added value) to immovable property-Section 63(if it is recoverable and
put at the costs of the mortgagee, and mortgager seeks to keep it, he shall pay costs for the same,
if it is not recoverable then the same process and interest rate as given under 63A).
• Right to Improvements made thereon-Section 63A(If such improvement was done by mortgagee
to reserve the property from destruction or deterioration or was necessary to prevent the security
from becoming insufficient, or was made in compliance with the lawful order of any public
servant or public authority, the mortgager shall pay the proper cost thereof as an addition to the
principal money with interest at the same rate as is payable on the principal, or, where no such
rate is fixed, at the rate of nine per cent. per annum, and the profits, if any).
• Right to a renewed lease-Property is given in mortgage and if mortgagor renews the lease then
at the time of redemption, the mortgagor will get all the benefits arising out of that lease.(Section
64).
Jana Singh v. Krishna Bajai-When a suit for redemption has been filed, the mortgagee will have
to deliver the possession to the mortgager unless he can show that the right to redemption has
come to an end or the suit can be dismissed on a valid ground.
Extinguishment of right to redemption-1)Court order in case of foreclosure suit.
2)Mortgager sells his equity of redemption and extinguishes his right.
Doctrine of clog of redemption-The mortgagee always remain a mortgagee and never becomes an
owner. Mortgagee cannot transfer the property right to third party as he does not have authority to
pass on the benefits of the property.
Mode-Suit for redemption, payment of debt to court, payment to mortgagee
*Right of redemption cannot be taken away by contract.

Section 61-Right to redeem separately or simultaneously-A mortgagor who has executed two
or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the
contrary, when the principal money of any two or more of the mortgages has become due, be
entitled to redeem any one such mortgage separately, or any two or more of such mortgages
together.

Section 62-Recovery of possession in usufructuary mortgage-When the mortgagee has recovered

the mortgagee debt from rent and profits, the mortgager shall be entitled to have the possession, or
if the period has expired and mortgagee has not been able to recover the amount, in such a case the
mortgager may get the possession by the payment balance amount to the court or mortgagee.

Section 65-Right to grant a lease-A mortgagor has right to grant a lease of which is lawfully in
possession with the mortgagee & such lease will be binding on mortgagee too. There are many
conditions on which such lease can be granted:
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• That lease should be according to the laws.
• No rent or premium shall be paid in advance.
• The lease shall not contain a covenant for renewal.
• The lease shall come into effect within six months from the date on which it is made.
• In case lease of buildings, the duration of the lease shall not exceed not more than three years.

Duties of mortgager:
1)Duty to avoid waste-Section 66
2)Duty to indemnify mortgagee against defective title
3)Duty to compensate mortgagee
4)Duty to direct rent of a lease to mortgagee

Section 66-Waste by mortgagor in possession-

Generally it is the duty of mortgagor to not to do any act which reduce the value of mortgaged
property. Further the waste is divided into two parts.
Active waste: In Active waste, a mortgagor is not liable for minor waste.
Permissive waste: If mortgagor does any act which leads to reduction of the value of the property,
then mortgagor will be held liable.

Section 65-Implied contracts by mortgager-

• Duty to indemnify mortgagee against defective title-Defective title is a title when a third party
starts claiming or interfere with the mortgaged property. Then is a liability for the mortgagor to
compensate for the expenses incurred by mortgagee for protecting the title of that property.
• Duty to compensate mortgagee-If the property is in possession of the mortgagee and he is
paying all the taxes and other public charge, then in such case, it is the duty of the mortgagor to
pay all the expenses to the mortgagee.
• Duty to direct rent of a lease to mortgagee-If a property which is mortgaged is given on lease,
then it is a duty of the mortgagor to direct the lessee to pay the rent to the mortgagee.

Rights and duties of mortgagee:

• ***Right to foreclosure or sale-67
• Right to sue for mortgage money-68
• Right to sell-69
• Right to appoint a receiver-69a
• Right to accession-70
• Right to renewal of lease-71A
• Right to spend money-72
• Right to proceeds of revenue sale or compensation on acquisition-73
• ***Right of mesne mortgagees-94
Liabilities:
• Mortgagee bound to bring one suit on several mortgages(67A)
• Liabilities of mortgage in possession(76 and 77)
• Duty to manage property
• Duty to collect rents
• Duty to make repairs
• Duty to not commit act which reduce value of property.
• Duty to keep accounts
• Duty to apply rents & profits.
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***Section 67-Right to foreclosure or sale-In absence to a contract to contrary, the mortgage debt
becoming due, and before the mortgager does not file a suit for redemption, or does he make the
payment to the mortgagee or court, in such a case a suit for foreclosure may be filed for debarring
the right to redeem.
a)Foreclosure-available in case of mortgage by conditional sale and anomalous mortgage(could use
sale as well, depending upon the terms of the contract).
• Sale-simple, English, deposit of sale deed, mortgage by conditional sale
• Usufructuary- neither sale nor foreclosure.
b)A mortgager who is a trustee for the mortgagee is prohibited from filing a suit for foreclosure.
This is because in case it is allowed, mortgager will acquire the property for his own benefit and
thus become a trustee of his own property. Therefore, the proper remedy in such a case is sale.
c)The mortgagee of public works like railway, canal or public utility are prohibited from filing a
suit for foreclosure or sale.
D)Subject to contrary, when there are many mortgagees for the same mortgager or mortgaged
property, in that case a single mortgagee cannot institute a suit for sale or foreclosure without
others.

Section 67A-Mortgagee when bound to bring one suit on serval mortgages-When a mortgagee
has 2 or more mortgages executed by the same mortgager and he wishes to obtain a decree under
section 67, he shall be bound to sue on all the mortgages in respect of which the mortgage money
has become due. Exception-contract to contrary.

Section 68-Right to sue-A mortgagee has a right to sue in the following case-
1)Mortgager binds himself to be repay.(legal representatives of mortgager cant be sued)
2)Mortgagee is deprived of the whole or part of his security by wrongful act or default of
mortgager.
3)Property given is destroyed without fault of any party.
4)When the mortgager fails to deliver the mortgagee of possession.
Court can stay proceedings in first two cases, if mortgagee has not used all of his remedies against
the mortgaged property.

Section 69-Right to sale-A mortgagee has right to sale the property if, the mortgagor is not paying
the money after specified time.Right to sale used without court intervention only in the following
circumstances:
• Mortgagor & mortgagee should not be Hindu, Muslim, Buddhist, or a member of any other race
as specified by the state government, in case of English mortgage.
• Where a power of sale without the intervention of the court is mentioned in the deed and the
mortgagee is the government.
• Where power of sale w/o the intervention of the court is expressly conferred on the mortgagee
and the mortgaged property is situated within the specified towns. Calcutta, Madras, Bombay,
Ahmedabad, Kanpur, Allahabad, Lucknow, Cochin, Delhi, etc.
Power not to be exercised-
• Notice in writing has been not served on the mortgager.
• Some interest under the mortgage amounting less than 500 is in arrear and has not been paid for 3
months.
• The title of the purchaser shall not be affected on ground of any irregularity in exercise of the
power of sale.

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 • After selling the mortgaged property, and recovering all costs, charges, encumbrances, etc., if
money if left, it shall go to the owner of the mortgaged property.

Section 69A-Appointment of receiver-

• If a mortgagee wants to sale the property in case of nonpayment of money then he can appoint the
receiver
• All the terms and condition of the appointment will be given in the mortgage deed.
• The person who is being appointed should be willing to act as a receiver.
• Can be appointed by court.
• After receiving money, he shall discharge all rents, taxes, land revenue, outgoings, pay
commission, interests as directed in writing by mortgagee, and residue to the owner of the
mortgaged property.
• Remuneration-5 percent commission
• Receiver to insure property.

Section 70-Accession to mortgaged property(Right of accession)-If after the date of a mortgage,

any accession is made to the mortgaged property, the mortgagee is entitled the same for security
unless there is a contract to contrary.
Ex:A mortgages a certain plot of building land to B and afterwards builds a house on the land. For
purposes of security, B is entitled to the house as well.

Section 71-Renewal of lease-When mortgaged property is a lease, and mortgager obtains a renewal
of lease, the mortgagee shall be entitled to it for the purposes of security.

Section 72-Rights of mortgagee in possession-A mortgagee may spend money-

• For preservation of mortgaged property from destruction, foreclosure or sale.
• For supporting the mortgagor’s title to property.
• For making his own title good against the mortgagor.
• When the mortgaged property is a renewable lease hold, for the renewal of the lease.
• Insure the property, exception-contract or insurance already there by mortgager.

Section 73-Right to proceeds of revenue sale or compensation on acquisition-When the

mortgaged property or any interest in it is sold, owing to failure to pay arrears of revenue, charges
of public nature, rent due, and such a failure did not arise from default of mortgagee. He shall be
entitled to claim payment of mortgaged money, out from any surplus of sale proceeds remaining
after the payment of all charges and deductions by law.
• This section mortgaged property or any part thereof or any interest therein is acquired under the
Land Acquisition Act, 1894 (1 of 1894), or any other enactment for the time being in force
providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled
to claim payment of the mortgage-money, in whole or in part, out of the amount due to the
mortgagor as compensation.

Section 76-Liabilities of mortgagee in possession-When, during the continuance of the mortgage,

the mortgagee takes possession of the mortgaged property:
• Duty to manage the property as a person of ordinary prudence.
• Duty to collect rents & profits of property.
• To pay government dues.
• Necessary repairs of mortgaged property.
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.
• Not commit act to destroy property.
• Keep account for gross receipts.
• Apply insurance money in reinstating the property or in reduction of mortgage money.
• Duty to keep proper accounts of all sums received and spent by him as a mortgagee.
• Duty to apply rents and profits in discharge of interest after making certain deductions.

Section 77-Receipts in lieu of interest-Nothing in section 76, clauses (b), (d), (g) and (h), applies
to cases where there is a contract between the mortgagee and the mortgagor that the receipts from
the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in
lieu of interest on the principal money, or in lieu of such interest and defined portions of the
principal.

Section 78-Postponement of prior mortgagee-Where, through the fraud, misrepresentation or

gross neglect of a prior mortgagee, another person has been induced to advance money on the
security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent
mortgagee.

Section 79-Mortgage to secure uncertain amount when maximum is expressed-If a mortgage

made to secure future advances, the performance of an engagement or the balance of a running
account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property
shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all
advances or debits not exceeding the maximum, though made or allowed with notice of the
subsequent mortgage.
Knowledge of prior debt to the subsequent mortgagee, shall bring upon priority to the prior deed.

Section 81-Marshalling securities-Same as section 56-marshalling

Section 82-Contribution
Paragraph 1 states that when one property is given by several mortgagers to a mortgagee then the
debt needs to paid in according with their ratio of ownership. If one of them pays the debt for all, he
is entitled to collect it from the others.
Para 2-Where, of two properties belonging to the same owner, one is mortgaged to secure one
debt and then both are mortgaged to secure another debt, and the former debt is paid out of
the former property, each property is, in the absence of a contract to the contrary, liable to
contribute rateably to the latter debt after deducting the amount of the former debt from the
value of the property out of which it has been paid.
Ex:A has property X n Y. He gives X for mortgaged and later, gives both X and Y for another
mortgage. X will give its debt individually for prior mortgage and will rateably contribute for the
subsequent mortgage.
*Marshalling prevails over contribution.

Section 83-Power to deposit money due on mortgage in court-When mortgage money becomes
due, the mortgager may deposit the money to the court before filing a suit for redemption. Court in
such a case shall issue a notice to the mortgagee to produce all documents or hand over possession
and take the money from the court.

Section 84-Cessation of interest-When mortgager pays the debt with all interest on principal
amount.
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Section 91-Persons who may sue for redemption-
Other than the mortgager, these people have a right over the property;
• Any person who has interest in or charge upon the property.Ex:subsequent mortgagee
• Any surety for the payment of the mortgage debt
• Any creditor of the mortgager who has in a suit from administration of his estate obtained a
decree for sale of the mortgaged property.

***Section 92-Subrogation-Any person other than mortgagor or co-mortgager who has the interest
in the mortgaged property & who redeems the mortgage is entitled to be substituted in place of the
mortgagee. Where a person makes the payment of the debt in default of the mortgagor, he is entitled
to redeem the mortgage but at the same time such person has the right to recover his money from
the mortgaged property just like the mortgagee would have done.

Visseswar Prasad v. Lala Sarman Singh-In this case, the nature and scope of the doctrine of
subrogation was explained. It is a doctrine of equity jurisprudence which does not depend upon the
privity of contract, express or implied except in so far as equity may be supposed to be imported
into the transaction & thus raise a contract by implication. It is founded on the facts &
circumstances of each particular case and principles of natural justice.

2 types-Legal-takes place by operation of law whereas, conventional-when a person paying off the
debt has no interest to protect but he advances the money under an agreement that he would be
surrogated to the rights and remedies of the creditor.

Section 93-Prohibition of tacking-No mortgagee paying off a prior mortgage, whether with or
without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his
original security; and, except in the case provided for by section 79, no mortgagee making a
subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage,
shall thereby acquire any priority in respect of his security for such subsequent advance.
*Abolished in India.
It is the purpose of squeezing out an intermediate mortgagee.

***Section 94-Rights of mesne mortgagee-Where a property is mortgaged for successive debts to

successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior(before)
to himself as he has against the mortgagor. Therefore, he can redeem any prior mortgage and
exercise his right of foreclosure against subsequent mortgagees.

Section 95-Right of redeeming co-mortgagor to expenses-Where one of several mortgagors

redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92
against his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such
proportion of the expenses properly incurred in such redemption as is attributable to their share in
the property.

Charges-100-104
Section 100-Charges-Where immovable property of one person is made security for the payment
of money to some other person by-
• Act or parties
• Operation of law
• Transaction does not amount to mortgage
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• The latter person is said to have a charge on the party.
• All provisions of a simple mortgage apply to such a charge.
• Notice is compulsory.
• Extinction of charge-act of parties, novation, merger.
In a charge, there is no transfer of interest in favour of charge holder but he is only entitled to
recover his money from the property. There is only a creation of personal obligation, i.e a right to
payment out of the specific property.

Section 101-No merger in case of subsequent encumbrance-If a merger takes place between the
mortgager and mortgagee/charge holder, in which the interests become one, should not do a merger
with a subsequent mortgagee or charge holder.

Section 102-Service or tender on or to agent-Where the person on or to whom any notice or

tender is to be made does not reside in the district in which the mortgaged property, such service or
tender may be done to an agent holding a general power-of-attorney from such person or otherwise
duly authorised to accept such service.
Where no person or agent on whom such notice should be served can be found or is known to
the person required to serve the notice, the latter person may apply to any Court in which a suit
might be brought for redemption of the mortgaged property, and such Court shall direct in what
manner such notice shall be served, and any notice served in compliance with such direction shall
be deemed sufficient.

Section 103- Notice, etc., to or by person incompetent to contract-Court shall appoint a guardian
for the minor.

Section 104-Power to make rules-HC may makes rules in accordance with act regarding
provisions of this chapter.

Lease-Section 105-177
• Right of possession is transferred.
• Transfer of a right to enjoy such property, made for a certain time, express or implied, or in
perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service
or any other thing of value, to be rendered periodically or on specified occasions to the transferor
by the transferee, who accepts the transfer on such terms.
• Lessor-Who gives the property.
• Lessee-Who gets the possession of a property for a limited period.
• Premium-The entire price paid
• Rent-part paid money, crops, consideration

Essentials-
• Parties must be competent.
• Right of possession
• Consideration-rent or premium
• Acceptance
• Time period

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Section 106-Duration of certain leases in absence of written contract or local usage(Time
period)-In absence to a contract to contrary, a lease can be ended by a notice by either side. The
prescribed time period begins from the time when the notice is received.
Agricultural purposes-year to year lease, notice before 6 months.
Other purposes-month to month lease, notice before 15 days.

Section 107-Lease how made-

• Lease for more than 1 year-registered deed.
• All other leases-registered deed or oral agreement
• Lease of multiple parties, require multiple deeds.

Punjab National bank v. Ganga Narain- If a lease is done through oral agreement, then the
provisions of section 106 shall apply.

Rajendra Prasad Singh v. Rameshwar Prasad-The lease for a term exceeding 1 year must be
through a registered document but signing of instrument by parties is not a sine qua non for its
validity.

Rights of lessor-
• Rent to recover the rent from the lessee.
• Right to take back property in case of breach of condition by lessee.
• Right to recover the amount of damages from the lessee if there is any damage done to the
property.
• Right to take back possession at the termination of the lease term.

Liabilities of lessor-
• To disclose material defects, which a person through ordinary prudence cannot find out.
• Lessor to give lessee the right to possession.
• To let lessee enjoy the property for the time period in the agreement without interference.

Rights of lessee-
• During the period of lease, if there is an alteration is made(alluvion for the being in force) then
that alteration will become a part of the lease.
• If a significant part of the property that has been leased is destroyed wholly or partly by fire, by
flood, by war, by the violent acts of the mob or by any other means resulting in its inefficiency of
being a benefit for the lessee. If this happens, the lease is voidable at his option.
• There is a proviso to this section that states if the damage is done due to any act of the lessee
himself, this remedy will not be available for him.
• Lessee has a right to deduct any expenses he has made repairs in the property from the rent if the
lessor has failed to in reasonable time.
• Lessee has a right to recover any such payment which a lessor is bound to make by can deducting
it from the interest of the rent or directly from the lessor. He has this right when the lessor has
neglected to make that required payment.
• Lessee has a right to detach all things that he may have attached in the property or earth. His only
obligation is that he has to leave the property in the same condition as he received it.
• When a lease is of unspecified duration in the lease agreement, lessee or his legal representative
have a right to collect all the profits or benefits from the crops which were sown by the lessee at

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 that property. They also have a right of free ingress and egress from such property even if the
lease ends.
• Lessee has a right to transfer absolutely the property or any part of his interest in that property by
sub-leasing or through mortgaging.Lessee is not independent of the terms and conditions
mentioned in the lease agreement.
Liabilities of lessee-
• Lessee is under an obligation to disclose all related material facts which are likely to increase the
value of the property for which the lessee has an interest in and the lessor is not aware of.
• Lessee is under an obligation to pay the rent or premium which is settled upon in the agreement to
the lessor or his agent within the prescribed time.
• Lessee is under an obligation to maintain the property in the condition that he initially got the
property on commencement of the lease and he has to return it in the same condition.
• If lessee gets to know about any proceedings relating to the property or any encroachment or any
interference, then lessee is under an obligation to give notice to the lessor.
• Lessee has a right to use all the assets and goods which are on the property as an owner would use
which is preserving it to the best of its nature. He is although under obligation to prevent any
other person from using that asset or good for any other purpose from what was prescribed in the
lease agreement.
• The lessee cannot attach any permanent structure without the consent of the lessor except for the
purpose of agriculture.
• Lessee is under an obligation to give the possession of the property back to the lessor after the
expiry of the prescribed term of the lease.

Section 110-Exclusion of day on which term commences-Where the time limited by a lease of
immoveable property is expressed as commencing from a particular day, in computing that time
such day shall be excluded. Where no day of commencement is named, the time so limited begins
from the making of the lease.
Duration of lease for a year-Where the time so limited is a year or a number of years, in
the absence of an express agreement to the contrary, the lease shall last during the whole
anniversary of the day from which such time commences.
Option to determine lease-Where the time so limited is expressed to be terminable before its
expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the
lessor, shall have such option.

Section 111-Determination of lease-It can end in the following conditions-

• Lapse of time-When the time period of lease ends.
• Specified event-When there is a condition of time of lease depending upon happening of an
event.
• Interest-Lessor’s interest to lease the property may cease, hence resulting in the termination of
the lease
• Same owner
• Express surrender
• Implied surrender
Forfeiture-
1)When there is a breach of an express condition by the lessee. The lessor may get the possession of
the property back.
2)When lessee renounces his character or gives the title of the property to a third person.
3)Lessee becomes insolvent.
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• Expiry of notice to quit

Section 112-Waiver of forfeiture-Forfeiture under section 111 is waived, if the lessor accepts the
rent or shows an intention to keep the lease going.
Proviso-Lessor is aware that forfeiture has incurred.
Proviso-where rent is accepted after the institution of a suit to eject the lessee on the
ground of forfeiture; such acceptance is not a waiver.

Section 113-Waiver of notice to quit-A notice given under section 111, clause (h), is waived, by an
intention to treat the lease as subsisting.

Section 114-Relief against forfeiture for non-payment of rent-Where a lease of immoveable

property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the
lessee, if, at the hearing of the suit, the lessee pays lessor the rent in arrear, together with interest
thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making
such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an
order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property
leased as if the forfeiture had not occurred.

Section 114A-Relief against forfeiture in certain other cases-Where a lease of immoveable

property has determined by forfeiture for a breach of an express condition which provides that on
breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has
served on the lessee a notice in writing—
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach;
and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy
the breach, if it is capable of remedy.
Exception-express condition against the assigning, under - letting, parting with the possession, or
disposing, of the property leased, or to an express condition relating to forfeiture in case of non-
payment of rent.

Section 115-Effect of surrender and forfeiture on under-leases-If the lessee surrender the
property, it does not effect the under-leases, the lessor shall have all the rights with regard to the
same. The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has
been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted
under section 114.

Section 116-Effect of holding over-If a lessee or under-lessee of property remains in possession

thereof after the determination of the lease granted to the lessee, and the lessor or his legal
representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in
possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year,
or from month to month, according to the purpose for which the property is leased, as specified in
section 106.

Section 117-Exemption of leases for agricultural purposes-Provisions of this chapter will not
apply to agricultural purposes until such has been published by the state government in the official
gazette, which shall come into being 6 months post publishing.

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Exchanges-118-121

Section 118-Exchanges-When two persons mutually transfer the ownership of thing for ownership
of another, neither thing should be money, the transaction is called exchange.
• Both movable and immovable property can be transferred
• A transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale.
• There are many cases in which transfer of ownership of a property with some money against some
ownership of another property, it also comes under definition of exchange.Ex: A gives B property
worth 30 lakhs and B gives him a property of 25 lakhs, and gives A 5 lakhs extra.

Characteristics:
• Ownership transfer-existing property and not future. Absolute ownership interest shall be
transferred.
• Movable or immovable-Immovable can be done against movable property.

Mode of transfer-
• Manner provided under Sale.
• Both properties are movable, then by delivery of possession.
• Both properties are immovable, but value less than 100, registration is optional.

Section 119-Right of party deprived of thing received in exchange-It provides for circumstance
in which one of the parties to the exchange is deprived of the property received by him/her due to
some defect in the title of the other party.
In Exchange, if one party is deprived of the thing received by him in exchange by reason of any
defect in the title of the other party. The other party is liable to the first party, for the loss caused by
such defect of title.

Section 120-Rights and liabilities of parties-Both parties have rights and liabilities of seller and
buyer.

Section 121-Exchange of money-On an exchange of money, each party thereby warrants

the genuineness of the money given by him.

Gifts/Gratuitous transfers-122-129

122-126-General legal implications

126-128-Concepts of universal donee and Onerous gift
Section 129-Exceptions

Section 122-“Gift” defined-“Gift” is the transfer of certain existing moveable or immoveable

property made voluntarily and without consideration, by one person, called the donor, to another,
called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and
while he is till capable of giving, If the donee dies before acceptance, the gift is void.
Essentials:
• No consideration
• Voluntary transfer
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• Must be accepted
• Movable or immovable property
• Future property cannot be gifted
*If donee dies before acceptance, gift is void.
*No condition for donee.

Nandi Singh v. Sitaram-A donee must be a certifiable person or persons. A gift cannot validly be
made to the public or society at large. There is no prohibition in law against a gift being made to
idol. If a gift is made to 2 or more persons, one of whom is capable of taking and other is not, the
gift of the former will be valid.
(Tenants in common-Combined donee for a singular gift)

Section 123-Transfer how effected-Immovable property be registration, movable property by

registration or delivery.

Rajamma vs Biswajith-It was held that mere production of documents to the donee cannot be
concluded as valid acceptance.

Ashiabeebi v. Kochupillai-It was held that declaration in gift deed that possession waas given is
sufficient to constitute a valid delivery.

Section 124-Gift of existing and future property-A gift comprising both existing and future
property is void as to the transfer of future property.

Section 125-Gift to several, of whom one does not accept-A gift of a thing to two or more
donees, of whom one does not accept it, is void as to the interest which he would have
taken had he accepted.

***Section 126-When gift may be suspended or revoked-

1)The donor and donee may agree that on happening of a certain event, the gift shall be revocable
or suspended.
2)A gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is
void wholly or in part, as the case may be.
Ex:A states that he’ll take money back from B, such a gift is void.
3)A gift may also be revoked in any of the cases as if it were a contract under contract act.(Fraud,
misrepresentation, etc.)
Nothing contained in this section shall be deemed to affect the rights of transferees for
consideration without notice.Ex: A gifts B a land, and B sells it to C without notice. The rights of C
shall not be effected by this section.

Section 127-Onerous gift(Property with obligation)-Where a gift is in the form of a single

transfer to the same person
of several things of which one is, and the others are not, burdened by an obligation, the
donee can take nothing by the gift unless he accepts it fully.
Ex: A gives B, three properties as a gift out of which one has mortgage debt on it, which needs to be
paid by B. B cannot choose to take other gifts and cancel this one with debt. He has to take all
together.
• Where a gift is in the form of two or more separate and independent transfers to the
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same person of several things, the donee is at liberty to accept one of them and refuse the
others, although the former may be beneficial and the latter onerous.
• Onerous gift to disqualified person-A donee not competent to contract and accepting property
burdened by any obligation is not bound by his acceptance. But if, after becoming competent to
contract and being aware of the obligation, he retains the property given, he becomes so bound.

Section 128-Universal donee-Subject to provisions of section 127, if the donor donates all of his
property to the donee, then the donee shall be liable to all the debts along with the property.
• As per section 127, he may deny all together if he does not want debts.

Section 129-Saving of donations mortis causa and Mohammedan law(Exceptions)-

1)Mortis causa- Donations made due to apprehension of death do not require acceptance.
2)Hiba- Gifts under Mohammedan law.

Actionable claims-Section 130-137

Defined under section 3-It is basically unsecured debt+unsecured loan and it is a claim.
Ex-A owes B 1000 rupees, and B owes C the same amount. Here, B may transfer such a claim to C,
who may recover the amount from A.
Exceptions-Mortage, secured debt, Hypothecation-sum outstanding to government, pledge on
mortgaged property.

Necessary elements:
• Written instrument should be signed by the transferor or his agent.
• With or without consideration
• Separate deed for transfer is not necessary.
• If there is an endowment under a promissory note & such a note will be consideration a document
in writing for transfer itself.

Section 130-Transfer of actionable claim-

• Done by a written instrument with or without consideration or with or without notice to the
debtor.
• Proviso-if debtor pays it to the transferor, the transferee cannot hold the debtor responsible for it.
He shall recover it from the transferor.
The transferee of an actionable claim may, upon the execution of such instrument of
transfer , sue or institute proceedings for the same in his own name without obtaining the
transferor's consent to such suit or proceedings and without making him a party.
Exception-does not apply to marine or fire policy insurance or section 38 of insurance act.

Anraj v. Gov. of TN-The SC held that transfers of the right to participate in the draw held in lottery
is a transfer of actionable claim & maybe effected by written instruments.

Effect of transfer:Effect of actionable claim takes place after execution of the instrument.

Section 131-Notice to be in writing, signed-It provides for 2 requirements-

1)The notice should be addressing the debtor. It should have name & address. Signed by transferor
or his agent.
2)If transferor refuses to sign, the transferee may also sign.
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Section 132-Liability of transferee of actionable claim-The transferee of an actionable claim shall
take it subject to all the liabilities and equities to which the transferor was subject in respect thereof
at the date of the transfer.

Section 133-Warranty of solvency of debtor-When the debt is transferred, the transferee may run
the risk of losing the claim, in case the debtor is insolvent. As a precautionary measure, the
transferee should ensure that the debtor is solvent. The transferor is not bound to give any warranty
but s.133 provides that if the transferor provides any warranty, it applies only to the date of the
transfer.
Further, where the transfer is for consideration. Any such warranty extends to the amount or value
of such consideration.

Section 134-Mortgage debt-If a actionable claim is transferred for a future debt or securing
another debt, the transferee may first deduct all money required for securing such a debt, and then
deduct the debt owed to him, and if money remains, such shall go to the transferor.

Section 135-Assignment of rights under policy of insurance against fire-Property insured

against fire is transferred to the assignee along with the property.

Section 136-Incapacity of officers connected with Courts of Justice-No Judge, legal practitioner
or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to
receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his
instance, or at the instance of any person claiming by or through him, any actionable claim so dealt
with by him as aforesaid.

Section 137-Saving of negotiable instruments, etc-These sections shall not apply to shares,
debentures, warrants, or negotiable instruments or mercantile title to goods.
mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse keeper's
certificate, railway receipt, warrant or order for the delivery of goods, and any other document used
in the ordinary course of business as proof of the possession or control of goods.

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The Indian Easements act,1882-

Section 4-definition-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 heritage-The land for the beneficial enjoyment of which the right exists
Servient heritage-The the land on which the liability is imposed.
Ex:While going to auditorium from SLS, SLS is dominant heritage and SIBM is servient heritage.
*Right to remove and appropriate is a right of easement in India but in UK, it is a profits a prendre.
B. Prabhu v. M. Prabhu-Easements as exercise of their own right of allowing enjoyment of rights
in immovable property to the neighbour.
Positive(Allow to use servient heritage) easements and negative(prohibit from doing something)
easements.

Types under section 5-

1)Continuous easements are those which continue without any human intervention.
Illustration-A right of light to access sunlight through windows of an house, may be a continuous
easement as it happens without any human conduct.
2)On the other hand, when human interference is required on the servient land, it is referred to as
discontinuous easement.
Illustration-A right of way is an example.
3)Apparent and non-apparent-Apparent easement(also referred to as express easement) is one
which can clearly be seen and there is a permanent sign for the same. Also, there is an additional
inspection required to check if such an right exists.
On the other hand, when an express sign is not present and a easement is not traceable through
inspection, is referred to as non-apparent easement(also known as invisible easement).

Section 6-Speci es restrictions and time-An easement exists for a particular period or on a
condition. It may be permanent or may be void on occurrence of a particular condition or non-
occurrence of a condition, etc.

Section 8-11-Who may impose-Owner or co-owner, lessor, servient owners.

Ways to acquire easements:

1)Express grant(S12)-Under this, an easement can be acquired through an express clause in the
sale deed at the time when, transfer of property is taking place. Over here, the person granting

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fi
expresses his clear intention.The condition for a express grant is said if the value of immovable
property exceeds Rs. 100, it needs to be registered.
Although, a person may not have a express grant, he may still claim a right of easement under a
implied grant.

2)Implied grant(s13)-An implied grant is acquired through the following implied circumstances-
Easements of necessity-This kind of easement arises when the owner cannot exercise the right over
his property without claiming the right of easement over the servient heritage.
To get this right, there must be absolute necessity for the same.

3)Prescriptive easements(s15)-This highlights that if a right to access and use of light for a
building, has been enjoyed, without interruption as an easement for twenty years, and have been
enjoyed without any express agreement with the servient owner, such a right shall be absolute or
presumed from the long and continued usage.
Also, an right of prescriptive easement to be exercised needs to be openly claimed.
Krishna Narayan Agarwal v. Carlton Hotel-Essentials for prescription were given. There must be
continuous usage for 20 years, which should be rightful, peaceful, openly known to all.

4)Customary easements(s18)-Such an easement arises out of a local custom.

Extinction of easements(37-48)—
1)Extinction by Expiry of time-When an easement is acquired for a certain purpose or a period of
time, on lapse of such period of time, the easement also ends.
2)Extinction by Dissolution of a servient owner’s right-A right of easement ceases to exist, if
before the easement was imposed, a cause was put up, and the person fails to comply with the
cause, then the easement becomes extinct.
To understand this better, let us consider an illustration. “X” gave “Y” a piece of land on the
condition that he does not marry anyone. “Y” imposes a easement on the piece of land. Later, “Y”
marries someone. Therefore, Y’s interest ends and so does the easement.
3)Extinction by release-In this scenario, a dominant owner releases his right of easement to the
servient owner, and therefore the right ceases to exist.
4)Extinction by revocation-An easement can also be revoked on the authority of the servient
owner, through the power reserved in him.

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5)Extinction on termination of necessity-If an easement is created for a particular necessity, then
such an easement can end after the necessity for it ends.
6)Extinction of useless easement-When an easement stops acting as a source of bene cial
enjoyment of the dominant owner, it becomes extinct.
7)Extinction by permanent change in the dominant heritage-When the nature of the dominant
heritage due to increase in burden of tenement changes in such a way, as to that it may never come
back to its original form, in such a case, the right of easement becomes extinct.
8)Extinction on permanent alteration of servient heritage by superior force-An easement
stands extinct, if the servient heritage is permanently altered due to a superior force(Such as a
natural calamity), such that the dominant owner can no longer enjoy his right.
Let us take an illustration to understand this better. “X” had a right of way over Y’s house. One day
due to a natural calamity, X’s right over the Y’s house is cut off. Hence, the right of easement ends
as “X” can no longer enjoy his right over Y’s house.
9)Extinction by destruction of either of the heritages-An easement stands extinct, if either of the
heritages is completely destroyed.
Now, the difference between extinction by destruction of either of the heritages and extinction on
permanent alteration of servient heritage by superior force, is that the extinction by destruction of
either of the heritages is a much more wider term and includes complete destruction, as partial
destruction does not take the right away.
10)Extinction by unity of ownership-As we learnt above, that for a easement to exist, the owners
of the dominant and servient heritage should not be the same. Therefore, if the dominant and
servient heritage owner become one, then the right of easement becomes extinct.

License(52-64)-
Section 52-Licenses-It when one person grants another person(or a group of persons), a right to do
something on a immovable property. Although, such a right does not create interest in the property
nor does it create a right of easement. It can also be called a privilege to do something on the
premises which would otherwise be unlawful.
• It is not transferred or inherited.
• If either of the licensing parties die, leads to termination.
• May or may not involve consideration.
The essentials for a valid license are:
1)The right over here arises out of a permission.
2)It is revocable through the grantor of the license.

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3)It is given in respect of immovable property.
4)Right in personam.

Section 53-Who may grant-Anyone who has authority or interest in property.

Section 54-Grant can be express or implied
Section 55-All licenses necessary for the enjoyment of any interest, or the exercise of any right, are
implied in the constitution of such interest or right. Such licenses are called accessory licenses.
Section 56-License to attend a place of public entertainment may be transferred.
Section 57-Grantor to disclose defects
Section 58-Grantor not to render the property unsafe by action post giving license
Section 59-If grantor transfers property, the transferee is not bound my license.
Section 60-Revocable by grantor-Property is transferred or licensee executed a work of permanent
character.
Section 61-Revocation can be express or implied.
Section 62-When is it deemed to be revoced(9 cases-a to i)
Section 63-On revocation, licensee Is entitled to reasonable time to vacate the property.
Section 64-License if given on consideration, and licensee is removed without any fault of his own,
he is entitled to compensation.
License v. Easement
A license is a right in respect of immovable property, whereas an easement is a right related to
immovable property. A license is a private right which can be enforced against an individual, on the
other hand, an easement, is a right against the whole world. Licenses are revocable through the
grantor but easements cannot be revoked. A license comes into play through a permission given by
the grantor, on the other hand, an easement is a matter of right and can be claimed.

License v lease:
Agreement-Required for lease but license does not.
Section 52-easement, section 105-tpa
Transferrable-License cannot, lease can be
Revocation-license-by grantor, lease-terms and conditions of contract
If sale takes place-license ends, lease continues
Possessory right-licensee cannot defend, lessee can defend
Lessee entitled to improvement while licensee is not.

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Registration act,1908-
Objective-Consolidation of all laws of registration, procedure of law for registration, compulsory
document.
• Immovable worth more than 100 to be registered within 4 months of transfer.
• Stamp duty-Levy of tax by the government for effecting a transfer of property whereas
registration is charged by the state for maintaining the records of registration for public record.
• Reg. cost is 1 percent and stamp duty(women get a rebate) may differ.
Section 17(1)-Compulsory document for registration-Instruments of gift, leases, non-
testamentary instruments which acknowledge the receipt or payment of any consideration on
account of the creation of interest, other testamentary instruments, right to catch sh, collectibles,
etc.
17(2)-Not necessary-stocks, shares, etc.

Time period-section 23-Time period of registration, 4months from transfer.

Section 32-Executor or claimant can get it registered.

Section 35(3)-registrar can refuse to register property-a) If any person by whom the document
purports to be executed denies its execution, or
(b) if any such person appears to the registering of cer to be a minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be executed is dead, and his representative or
assign denies its execution.

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