Chapter 1 Chapter 1
Moveable and Immovable Property Moveable and Immovable Property -Property has been defined in
-Property has been defined in R.C. Cooper v. UOI-R.C. Cooper v. UOI--Property denotes-Every kind of interest or right
-Property denotes-Every kind of interest or right hi!h has an e!onomi! !ontent.hi!h has an e!onomi! !ontent.
""Movable propertyMovable property" shall mean property of " shall mean property of every des!ription# e$!ept immovable property.every des!ription# e$!ept immovable property.
""Immovable propertyImmovable property" shall in!l%de land# benefits to arise o%t of land# and things atta!hed to the earth# or" shall in!l%de land# benefits to arise o%t of land# and things atta!hed to the earth# or permanently fastened to anything atta!hed to the ear
permanently fastened to anything atta!hed to the ear th. &'eneral Cla%se (!t# 1)*+,th. &'eneral Cla%se (!t# 1)*+, M
MOO((//E E PPRROOPPEERR00 IIMMMMOO((//E E PPRROOPPEERR00 It !an be transferred from one pla!e to
It !an be transferred from one pla!e to another.
another.
Registration is optional as per the Indian Registration is optional as per the Indian Registration (!t# 1*2).
Registration (!t# 1*2).
0he 3ales and Central 3ales ta$es are 0he 3ales and Central 3ales ta$es are applied#
applied#
It
It !a!annnnot ot be be trtranansfsfererrered d iithotho%t %t !a!a%s%sining g e$e$tetensnsivive e dadamamage ge to to ththee p
prrooppeerrttyy. . 00hhe e ddaammaagge e rreellaattees s tto o tthhe e nnaatt%%rre e oof f tthhee property
property
Registration is !omp%lsory %nder the Indian Registration (!t# 1*2) if the Registration is !omp%lsory %nder the Indian Registration (!t# 1*2) if the v
vaall%%e e oof f tthhe e pprrooppeerrtty y iis s mmoorre e tthhaan n RRss. . 112222.. 0he property needs to be
0he property needs to be registered at the 3%b-Registrar4s offi!e.registered at the 3%b-Registrar4s offi!e. 0he appropriate stamp d%ty and the registration fee have to be paid. 0he appropriate stamp d%ty and the registration fee have to be paid. --Types of propertiesTypes of
properties--&1,
&1, Moveable Moveable--&5,
&5, Immovable Immovable--&a,
&a, LandLand-anything or beneth or on s%rfa!e in its nat%ral state-anything or beneth or on s%rfa!e in its nat%ral state &b,
&b, Benefits arising out of land (Benefits arising out of land (Profits a prendre)Profits a prendre)-0he essentials are--0he essentials are-&i, 0he person !laiming m%st have an interest in the land
&i, 0he person !laiming m%st have an interest in the land &ii, It m%st be in respe!t of prod%!e or profit of the soil &ii, It m%st be in respe!t of prod%!e or profit of the soil
Eg.-6 sells a forest to # the trees# rivers# minerals et! all forming part of the land or the benefits Eg.-6 sells a forest to # the trees# rivers# minerals et! all forming part of the land or the benefits to arise o%t of land# ill go ith it.
to arise o%t of land# ill go ith it. &!,
&!, Things attached to earthThings attached to earth &i, 0hings rooted in the
&i, 0hings rooted in the earth-trees# shr%bs &e$!ept standing timber# groing !rops and earth-trees# shr%bs &e$!ept standing timber# groing !rops and grass,grass, &ii, 0hings imbedded in the earth-ho%ses# b%ildings
&ii, 0hings imbedded in the earth-ho%ses# b%ildings
&iii, 0hings atta!hed to hat is so embedded for permanent benefi!ial en7oyment of that hi!h is &iii, 0hings atta!hed to hat is so embedded for permanent benefi!ial en7oyment of that hi!h is embedded &8o!trine of fi$t%res,-8oors# indos are atta!hed to the
embedded &8o!trine of fi$t%res,-8oors# indos are atta!hed to the ho%se for permanentho%se for permanent en7oyment of ho%se.
en7oyment of ho%se.
&iv, Chattel atta!hed to earth or
b%ilding-&iv, Chattel atta!hed to earth or b%ilding- the degree# manner# e$tent and the degree# manner# e$tent and strength of atta!hmentstrength of atta!hment of !hattel is taken into !onsideration.
of !hattel is taken into !onsideration.
--Doctrine of fixturesDoctrine of fixtures-3omething anne$ed to the freehold. 9-3omething anne$ed to the freehold. 9hen a movable be!omes immovablehen a movable be!omes immovable &a,
&a, uid uid plantatur solo solo credituid uid plantatur solo solo credit-hatever is planted in the ear-hatever is planted in the earth# be!omes the part of earth. Itth# be!omes the part of earth. It applies only hen there is no !ontra!t to the !ontrary
applies only hen there is no !ontra!t to the !ontrary &b,
&b, uid uid inaedificature solo solo credituid uid inaedificature solo solo credit-hatever is b%ilt into or embedded into or atta!hed to-hatever is b%ilt into or embedded into or atta!hed to soil be!omes part of the earth.
soil be!omes part of the earth. %t it doesn4t apply to trade %t it doesn4t apply to trade fi$t%res.fi$t%res. --!ase on Doctrine of "ixtures!ase on Doctrine of
"ixtures--&1,
&1, Bamdev Panigrahi v# Manorama $ai%Bamdev Panigrahi v# Manorama $ai%
--Movable propertyMovable
property---Property of every des!ription e$!ept immovable property &Right of
-Property of every des!ription e$!ept immovable property &Right of orship# royalty# any ma!hineryorship# royalty# any ma!hinery hi!h is not atta!hed to
hi!h is not atta!hed to earth and !an be shifted from one plearth and !an be shifted from one pla!e to another# ( right to re!overa!e to another# ( right to re!over maintenan!e# 8e!ree for arrears# standing timber# groing !rops
maintenan!e# 8e!ree for arrears# standing timber# groing !rops and grass.and grass.
--&tanding timber&tanding timber-( tree that has attained its -( tree that has attained its f%ll age# height and f%ll age# height and dras minim%m s%stenan!e from earth:soildras minim%m s%stenan!e from earth:soil and if it !rosses this age# its shape
and if it !rosses this age# its shape and !ondition starts de!reasing and deteriorating. It and !ondition starts de!reasing and deteriorating. It is ready for being !%tis ready for being !%t and !o%ld be %sed for making vario%s items vi;. f%rnit%re et!. 9hether a tree is timber or not depends on the and !o%ld be %sed for making vario%s items vi;. f%rnit%re et!. 9hether a tree is timber or not depends on the !ategory of the tree and the
!ategory of the tree and the !ommon p%rpose of s%!h !ategory. (ll !ommon p%rpose of s%!h !ategory. (ll the stat%tory definitions have e$!l%dedthe stat%tory definitions have e$!l%ded standing timber# groing !rops and grass from the
standing timber# groing !rops and grass from the p%rvie of an immovable property. <ere the p%rvie of an immovable property. <ere the intention is ofintention is of great importan!e. If the transa!tion is the immediate# the ob7e!ts
s%!h ob7e!ts e$tends to many a year or if the oner of the trees is interested in f%rther vegetative groth# then they ill be treated as immovable property. 0he transfer of trees standing on land does not amo%nt to the transfer of the land also.
-Timber tree-( tree hi!h is groing and draing s%stenan!e from soil. -Cases
&1, 'nand Behera v# &tate- ( right to !at!h aay fish from Chilika /ake# over a n%mber of years as held to be profit a prendre. &enefits arising o%t of land,
&5, &hanta Bai v# &tate (&tanding Timber and Timber tree)-Right to enter land# !%t and !arry aay ood over a period of 15 years as held to be immovable property. &enefits arising o%t of land and 3tanding timber and timber tree,
&=, &tate v# Titaghur Paper Mills !ompany%
-Tests to determine hether a property is movable or fixture-&a, Degree or mode of attachment and result of its detachment &b, b*ect or purpose of attachment
Chapter 5
(ttestation &3e!tion-=,
'ttest-means to sign and itness any fa!t. (ttesting as per 0P( means a person has signed the do!%ment by ay of testimony of the fa!t that he sa it e$e!%ted. 0he la re>%ires some a%thenti!ity of the do!%ment and
that it as e$e!%ted by a person4s free ill and %nderstanding and itho%t any for!e# fra%d or !oer!ion. -$euisites
&1, there m%st be atleast to itness
&5, it is not ne!essary that all the itnesses m%st sign at the same time
&=, it is ne!essary that the itness m%st sign in the presen!e of the e$e!%tants &?, it is ordinarily ne!essary that the itness m%se see
&a, the e$e!%tants sign:th%mb impression to the instr%ment4
&b, or some other person sign the instr%ment in the presen!e and at the dire!tion of e$e!%tant
&!, or the itness sho%ld re!eive an a!knoledgement of e$e!%tant4s signat%re:0.I. or of the person signing on the behalf of the e$e!%tants
&@, 0he itness m%st sign after the e$e!%tion of the instr%ment
&A, 0he itness !an sign anyhere in the instr%ment and no pla!e is fi$ed as to here he sho%ld sign. &+, (nybody !an sign ho is !apable of entering a !ontra!t
&), Animo Attestandi -0he itness m%st sign ith the intention of attesting the fa!ts and not 7%st mere signing it. <e m%st !ertify that he a!t%ally sa the e$e!%tant sign the do!%ment.
&*, 0he pardanashin lady !an be a itness &12, 0he itness sho%ld be independent--!ases
&1, Padarath +alai v# $am ,arain (Pardanashin lady)-0here ere to pardanashin ladies ho ere the mortgagers and ho did not appear before the 5 attesting itnesses hile e$e!%ting the instr%ment. 0he !o%rt held that sin!e the 5 itnesses ere a!>%ainted ith the voi!es of both the ladies and on these gro%nds the !o%rt held that the attestation done by to itnesses ere gen%ine and valid.
&5, M#L#'# -abbar v# +#.# &astri%0he se!%rity bond as signed by three itness# a soli!itor and the registering offi!er. 5 o%t of the = itnesses and the soli!itor itnessed the do!%ment 7%st for the sake that they have identified the e$e!%tants. 0he !o%rt held some !ondition to be f%lfilled for an a%thenti! attestation. 0he !o%rt held that the registering offi!er !an also be a attesting itness if it !an be proved that he a!ted animo attestandi. If it f%lfills all the !ondition of 3e!tion = 0P(# then the attestation is valid.
Chapter = Boti!e &ection / TP'%,otice-It is a knoledge of a fa!t
( person is said to have a knoledge of a fa!t hen-&1, he a!t%ally knos the fa!t
&5, hen# b%t for his ishf%l abstention# from an in>%iry or sear!h hi!h he o%ght to have made# or gross negligen!e# he o%ld have knon it &!onstr%!tive or imp%ter noti!e,
-Types of
notice-&1, 'ctual-(!t%al as the term spe!ifies# here the person in a!t%al possess the knoledge of the fa!t. It is on the party of the imp%ting the noti!e to prove that the other party a!t%ally had the knoledge.
&5, !onstructive
&a, illful abstention from an inuiry or search- ( sells a property to .
&b, 0ross negligence-( took a loan from (C bank and kept the title deed of his ho%se ith the bank as se!%rity. Dor paying off the debt amo%nt# ( asks the bank to handover the title deed so that he !an strike a good deal for selling his ho%se. 0he bank a!ting negligently gave the papers to (. ( again on the same papers applied for loan to other banks. <ere the bank as in a 'ross negligent.
&!, $egistration as a notice-( sells his ho%se to thro%gh a registered instr%ment. ( again tries to sell the same ho%se to C. <ere# la imposes a d%ty on C to go to the registrar offi!e and !he!k the original title of the property. If he doesn4t do so# his is to fa!e detrimental !onse>%en!es as he o%ld be
imp%ted ith !onstr%!tive noti!e of registration transa!tion.
&d, 'ctual Possession as a notice-( sells a property to . 9hile C as the real oner and as in possession of the property. ( !o%ld have made some in>%iries abo%t the 4s stat%s and his possession in the property and by doing so he !o%ld have had the knoledge that the a!t%al oner as C ho is in a!t%al possession of the property.
&e, Imputed ,otice-0he %nderlying prin!iple of this is that no person shall be alloed to get rid of the do!trine by simply employing an agent.( person is deemed to have had noti!e of the fa!t if his agent a!>%ired noti!e
&i, hile a!ting on his behalf &ii, in the !o%rse of b%siness
&iii, to hi!h b%siness# the fa!t is material.
%t if the agent by fra%d# !on!eals the fa!ts# the prin!ipal !annot be !harges ith noti!e. -!ases
&1, 'M! v# +a*i 'bdul 0afoor (!onstructive notice) -( be!ame insolvent. <is property as vested ith the offi!er reven%e. M%ni!ipality asked for the d%es pending over the property. Re!eiver took the permission of the !o%rt to sell the property to satisfy the d%es of m%ni!ipality. %t the re!eiver a!ting negligently did nothing afterards and the d%es ere remained %npaid for @ years. 0he person ho p%r!hased the property in a%!tion asked the re!eiver abo%t any arrears b%t the re!eiver intentionally didn4t give any information. 9hen the person !ame to kno abo%t it# the m%ni!ipality !ontended that he is to take the property s%b7e!t to all the defe!ts of the title and do!trine of !aveat emptor applies here. 0he !o%rt held that the plaintiff !o%ld not have reasonably tho%ght that the m%ni!ipality had not !ared to se!%re the payment. <ere in this !ase it is the m%ni!ipality has a!ted negligently in not providing the information hen he asked for the same. 0h%s# the plaintiff !annot be fi$ed ith !onstr%!tive noti!e.
Bano-Chapter-? 0ransfer of Property
&ection 1 TP'-0ransfer of property means here a living person !onveys property. It is !reating of a ne title and passing on the property to some other living person or more living persons or to himself.
0he 8efinition
in!l%des-&1, /iving persons-in!l%des# !ompany# asso!iation# body of individ%als# to himself &5, Property-onership# tenan!y# !opyrights# trademarks et!.
&=, 0ransfer-of either all the rights or interest in the property or transfer of some s%bordinate rights D%t%re property !an4t be a s%b7e!t of transfer be!a%se of spe!%lation.
-2inds of transfer-3ale# mortgage# lease# gift et!. -3ill% is not a transfer of propertyF.
Cases on
9ill-&1, ,# $amaiah v# &# ,agra* (!ase explaining the difference beteen Transfer of Property and 3ill) -( ill as made in favo%r of nephe of (. 0he ill as !hallenged by the ido of ( thro%gh her brother. 3he !ontended that the 9ill as got %p do!%ment and she is the one ho ill s%!!eed the property as a sole legal heir of (. 0he nephe took an in7%n!tion and the !o%rt dire!ted the ido to maintain a stat%s >%o. Meanhile# after some time she died and before her death she e$e!%ted a ill in favo%r of her brother. <er brother !ontended in the !o%rt that he may be alloed to appear as respondent in pla!e of the ido. <e !ontended that she had be>%eathed her property to him and his !hildren and therefore he is one of the !o-oners of the property hi!h as the s%b7e!t matter. 0he nephe !ontended that the 9ill is in brea!h and defian!e of the order of stat%s >%o. 0he !o%rt held that the 9ill and transfers are both different. In transfer# the property is transferred inter vivos b%t 9ill only be!omes operative hen the person making it# dies. 0he transfer !reates a ne title hile a ill is a mere spe!%lation. 9ill only reg%lates s%!!ession. 0he 0ransfer is immediate and irrevo!able hile 9ill is revo!able and !omes into operation only after death. 0he !o%rt held the 9ill is not same as transfer. ( 9ill in!l%des only those intention of a testator ith respe!t to his property hi!h he desires to reg%late s%!!ession and it !reates no ne title# onership right and nor the possession is affe!ted. <en!e# the ill is not the part of transfer of property# b%t it never !reated a ne title and he is liable to be released.
Chapter @
9hat kind of Property !an be transferred &3e!tion Aa# ?=, -3hat may be transferred (&ection 4)
(lienation rei prefert%r 7%ri a!!res!endi hi!h means la favo%rs alienation to a!!%m%lation. (ny kind may be transferred and the one ho is opposing the non-transferability sho%ld prove that %nder hi!h la or !%stom the property !an4t be transferred
-&pes successionis- &ection 4a
9here the heir has got only a mere possibility to get the property i.e. here there is only a spe!%lation# the heir !annot transfer the spe!%lated property to someone else. &1, <eir-apparent &5, relation obtaining lega!y on the death of kinsman &=, any other mere possibility of like nat%re.
Eg-(# after death# leaves property orth !rores to ife . <ere# C# the brother of ( is having a mere possibility of getting the property. It !o%ld be possible only if dies leaving no !hild behind.
-Doctrine of "eeding empty grant by estoppels (&ection%5/)
Transfer of property by any unauthorised persons ho subseuently acuires interest in property transferred-9here any person fra%d%lently or erroneo%sly represents that he is a%thori;ed to transfer !ertain immovable property and professes to transfer s%!h property for !onsideration# s%!h transfer shall at the option of the transferee# operate on any interest hi!h the transferor may a!>%ire in s%!h property at any time d%ring hi!h the !ontra!t of transfer s%bsists. 0he general r%le is nemo dat quod non habet F hi!h means no one
!an give to another# hat he himself does not have. If any s%!h transfer is e$e!%ted# then is s%!h !ase# %nder this se!tion# prote!tion is given to the bonafide p%r!haser. 0his 3e!tion is partly based on 8o!trine of Estoppel. Eg-( transfers a property of hi!h he has no right. <e does so fra%d%lently. ho a!ted bonafide is the p%r!haser. 3omeho# thro%gh some gift the property !omes to (. Bo# the !o%rt !an be estopped the !o%rt !an !ompel ( to deliver the property to . %t it !o%ld be done only at the option of hile the !ontra!t s%bsists.
0he 8o!trine also applies to mortgage# lease# !harge and e$!hange. -6ssentials reuisites of &ection 5/
&a, Representation m%st be there from transferor# either fra%d%lently or erroneo%sly
&b, 0he do!trine doesn4t apply here the transferee already had the knoledge of the fa!ts or here both the parties kne the fa!t
&!, 8o!trine doesn4t apply here the transfer is forbidden by la &d, 0ransfer for !onsideration
&e, 0he option of transferee- 0he transferee doesn4t get the right over the property a%tomati!ally# b%t he has to !laim it. 0here are other remedies also that the transferee has vi;. he !an file a s%it for brea!h of !ontra!t# file a !ivil !ase for re!overy of p%r!hase-money# a !ase of !heating et!.
&f, 0he 8o!trine also doesn4t apply here the !ontra!t has finished or !an!elled-If the transferee has !an!elled or rep%diated or here the money taken by the transferor has been paid ba!k# in s%!h a sit%ation the do!trine doesn4t apply.
&g, 0ransfer valid at the option of the transferee--Cases
(7) -umma Mas*id v# 2# Deviah%(Difference beteen &ection 4a and
5/)-3e!tionAa 3e!tion ?=
It is for movable and immovable properties It is only for immovable properties It is for all kinds of transfers It is for transfers ith !onsideration Under this# there is no misrepresentation of fra%d by
the transferor b%t he transfers only the basis of spes s%!!essionis
Misrepresentation or fra%ds is there on the part of the transferor relating to the title of the property
It deals ith the transfer of a mere possibility It deals ith !onse>%en!es of misrepresentation It is a r%le of s%bstantive la It in!l%des r%le of estoppel
0he stat%s of the transfer is void ab initio 0he stat%s be!omes void at the option of the transferee
(8) 2artar &ingh v# +arbans 2aur -( hind% omen e$e!%ted a sale deed of the land belonging to her minor son. <er son# on attaining ma7ority filed a s%it and !ontended that this sale as not binding on him and as void. <C de!ided the !ase in his favo%r and ordered to give him possession. efore taking possession he died and property !ame to mother by s%!!ession &Class 1 heir,. 0he transferee# filed a s%it %nder 3e!tion ?= and !laimed the property. 0he 3C held that for 3e!tion ?= to apply# to !onditions m%st be satisfied &1, ( misrepresentation either by fra%d or error by the transferor to the transferee that he is a%thori;ed to transfer !ertain immovable property and a!!epts to transfer it for a !onsideration &5, hen the property in iss%e !omes to the transferor# then at the option of the transferee# he is entitled to get the restit%tion# hile the !ontra!t of transfer s%bsists. 3C held that the transferee has failed to take reasonable !ase to as!ertain hether the transferor is !ompetent or not to make transfer on behalf on her minor son. 0he transferor as not misled. It is the d%ty of the transferor to in>%ire# in hi!h he failed. 0h%s# first !ondition to 3e!tion ?= is not proved. D%rther# 3C said that the !ontra!t has to s%bsist# if the transferee ants restit%tion. %t in this !ase# the !ontra!t as void ab initio as the mother:transferor as not a !ompetent person to transfer the property on behalf of the minor son.
3C !larified that as per 3e!tion ?=
&1, It doesn4t matters hether the transferor a!ted fra%d%lently or inno!entrly in making the representation# hat matters is that if the transferee kne as a fa!t that the transferor doesn4t possess the title hi!h he
represents he has# then in s%!h a sit%ation 3e!tion ?= ill not apply.
8e!ision-3e!tion ?= ill not apply b%t 3e!tion A&a, ill apply and the mother s%!!eeds. 0he !ontra!t is a void !ontra!t.
Chapter A
Restraints on 0ransfer
0he la favo%r alienation and not a!!%m%lation.
&ection 79-9here the property is transferred to the transferee by absol%tely restraining ith some !ondition ith it vi;. that he !annot sell or that he !annot transfer the property. 3%!h !onditions are void.
-"eatures
of-&1, It is !alled !onditional transfer
&5, It talks only those !onditions hi!h are s%bse>%ent to the vesting of the interest in the transferee &5, the absol%te restraint binds the transferee from parting from his interest in the property
&=, 3%!h !onditions are void
&?, 3%!h !onditions are not void hen
&i, here the !ondition is for the benefit of the lessor or those !laiming %nder him
&ii, here the !ondition is for the benefit of a omen ¬ being <ind%# M%slim or %ddhist,
0he e$!eption to 3e!tion 12 is that the lessor !an impose a !ondition on the right to alienate of the lessee. It is so be!a%se the onership right belongs to the lessor and it is his right to !hoose ho his tenant o%ld be and this right !an4t be en7oyed by lessee.
0he other e$!eption is that then the !ondition if for the benefit of the omen.
Eg.-&1, ( transfers his property ith a !ondition that shall never sell it. 0his !ondition is void and he may sell it or keep it.
&5, ( transfers his property to his ife ith a !ondition that she o%ld have no poer to sell the property ith his !onsent.
( right of transfer !omes ith the onership of the property and is inseparable. <oever there are e$!eptions to this also. 0here are to kinds of
restrains-&1, 'bsolute
$estraint-&i, 0hese are void restraints as these takes aay the poer or alienation !ompletely or s%bstantially Eg-( transfer his property to on a !ondition that shall never sell it# e$!ept for religio%s p%rposes.
&5, Partial
$estraint-&i, it imposes some restri!tion on the alienation b%t the transferee is s%bstantially free to alienate the property
Eg.-( transfer his property on a !ondition that he shall not sell the property for religio%s p%rposes. <ere the !ondition is imposed for only religio%s se!tion and the transferee !an alienate to any other person other than for religio%s p%rpose. 0h%s if the poer to alienate is restri!ted to one person only then it is absol%te and void. -ther
examples-&1, selling of the property at a fi$ed pri!e is void
&5, transferee shall not transfer the property by ay of gift is a partial restraint
&=, transferee shall not transfer the property for = years is a partial restraint and it o%ld be void:absol%te restraint if the period is 52 years be!a%se is 52 years is a very long time.
&?, that the transferee shall not transfer the property to any member of a parti!%lar person4s family: or to a parti!%lar person is a partial restrain and th%s valid
-!ases
&1, $osher v# $osher-( transferred his property to his son on a !ondition that if he ants to sell the property d%ring the lifetime of his mother# the offer to p%r!hase sho%ld be given to her at a pri!e of =22 po%nds hi!h as a pri!e very loer as !ompared to its a!t%al pri!e hi!h as 1@222 po%nds. 0he se!ond !ondition as that if they ant to give the property on rent# they !an give it for only = years and after that the ido o%ld have the option to o!!%py the premises for = years at a nominal rent and if the tenan!y e$!eeded to seven years# again she o%ld be entitled to o!!%py the premises for a fi$ed rent. 0he !o%rt held that s%!h !ondition on the right of the transferee are void !onditions and these are stopping him from alienating and en7oying the property. 0he !onditions are absol%te in nat%re and are void.
&5, :oroastrian !o%op# +ousing &ociety Ltd# v# District $egistrar; !o%op# &ocieties -0he !ondition for be!oming the member of the so!iety as that the person sho%ld be a parsi and the restri!tion imposed as
that they !annot sell their share of property to a non-parsi. One of the members as negotiating ith one of the b%ilder4s asso!iation. <e forarded an appli!ation to the so!iety seeking permission to transfer the property to the b%ilder4s asso!iation# non-parsi hi!h as re7e!ted. 0he !o%rt took the de!ision GGGGGGGGG
&=, 2# Munisamy v# 2# .en<atasamy-0here as a partition beteen parents# 3on ( and 3on . 0here as a !ondition imposed on the share of the parents that they shall en7oy their share for their life time and after them# the share ill be e>%ally divided beteen 3on ( and 3on . It is to be noted that no s%!h !ondition as imposed in the shares of the sons. 0he !ondition on the parent4s share as an absol%te restraint be!a%se ith s%!h a !ondition they ere not in a position to alienate their pr operty. 0he !o%rt held that the !ondition as a void !ondition.
-Restri!tion on the Dree en7oyment of
property-Restri!tion rep%gnant to interest !reated- &3e!tion 11,-(ny !ondition hi!h restraints the en7oyment of the property hi!h is transferred absol%tely is void.
Eg-( !ondition that the transferee sho%ld alays give the land on a definite rent or that he sho%ld not !%ltivate in a parti!%lar manner# are void !onditions.
3e!tion12 3e!tion 11
It deals ith the !onditions imposed on the transfer It deals ith the !onditions imposed on en7oyment It is appli!able to all transfers hether absol%te or
partial
It is appli!able only hen the transfer is absol%te It deals ith the poer to alienate It deals ith the en7oyment
0otal restraint is void 0he oner !an en7oy the property in any manner E$!eption to 3e!tion 11
-0he transferor !an impose !ertain restri!tions on the transferee
if-&1, 0ransferor4s on land is ad7a!ent to the land transferred to the transferee
-&ection 59%!onvenants-0hese are the !onditions imposed by the transferor on the %se of land by the transferee for the benefit of his ad7oining land. 0hese !ovenants are in riting !reating an obligation hi!h may be positive or
negative-&1, Positive !ovenant &b%rden on land,-it stip%lates the performan!e of some a!t or payment of money &5, Begative-It restri!ts some a!ts vi;. not to raise the b%ilding.
Chapter )
/is Pendens &Pending litigation,-&ection 18 (!omplete)
-lis pendence in short means that during the pendency of suit; the parties cannot transfer their properties#
-Ut lite pendent nihil innoveteur =nothing ne should be introduced in a pending lit igation -it aims to prevent m%ltipli!ity of s%its of pro!eedings related to the same land.
-9here a s%it or pro!eed is pending beteen to parties ith respe!t to an immovable property# and one of the parties thereto sells or otherise transfers# the s%b7e!t matter of the litigation# then the transferee ill be bo%nd by the res%lt of the s%it or pro!eeding# hether or not he had noti!e of the s%it or pro!eeding. 0his r%le is knon as lis pendens.
Eg- ( and are neighbo%rs. en!roa!hed (4s land. ( filed a s%it and hile the s%it as pending sold the property to C. 9hatever the de!ision the !o%rt gives# hether in favo%r or against # that C ill also be bo%nd by that de!ision.
Essentials of the
8o!trine-1, 0here m%st be penden!y of a s%it or pro!eeding 5, 0he s%it m%st be pending in a !ompetent !o%rt
=, 0he s%it m%st not be !oll%sive-0here m%st not be a fra%d. Eg.- ( and agreed and !onspired that o%ld file a s%it against ( in respe!t of a ho%se in (4s possession and d%ring the penden!y of the s%it o%ld sell that property to C ith the belief that the sale-deed e$e!%ted in favo%r of C o%ld be set aside by the !o%rt be!a%se of lis pendens and ill divide the amo%nt e>%ally. 0hey ork their plan. 0he de!ree goes in the favo%r of . Bo# the s%it being !oll%sive and the possession o%ld go to 8 and not .
?, 0he right to immovable property m%st be in >%estion dire!tly and spe!ifi!ally
@, 0he property in >%estion m%st be transferred or otherise dealt ith b y any to the litigation A, 0he alienation m%st affe!t the rights of the other party
-Cases-&1, -ayaram Mudaliar v# 'yyasamy%0he property as a%!tioned be!a%se of some money de!ree. 0he Harta had to repay !ertain debts on behalf of the family. ( member of the family of the Harta filed a s%it for partition. 0he a%!tion took pla!e hile the s%it as pending. 0he !o%rt held that the a%!tion as hit by lis pendens as the alienation made by the Harta ere fra%d%lent and not for the legal ne!essity and the share of the !laimant shall remain %naffe!ted in the partition.
&5, Dalip 2aur v# -eean $am% preemption case%(proceedings before the &! are a continuation of those in the original suit and that the principle of lis pendens as ell as restitution shall apply to the proceedings)%( filed a s%it for possession by ay of preemption against . <e got possession by ay of de!ree. 0he opposite party filed an appeal and the same as dismissed by <C. 0hey filed an appeal in 3C hi!h as also dismissed. 0hey filed a spe!ial leave petition. 0he leave as granted and appeal as a!!epted. 8%ring this time# ( sold the property to 6# ho raised an ob7e!tion that the de!ree of restit%tion !an4t be invoked against him. 3C held that the pro!eedings before it are in !ontin%ation of those in the original s%it and the prin!ipal of lis pendens as ell as restit%tion shall apply to the pro!eedings.
&=, 0ovind Pillai v# 'iyyappa 2rishanan %(&uit filed in the court ith incompetent *urisdiction)-( disp%te as pending in the !o%rt regarding some property. 0he plaint as ret%rned be!a%se the !o%rt in hi!h it as presented as not having !ompetent 7%risdi!tion. efore the s%it !o%ld be filed in a !ompetent 7%risdi!tion# the person ho had the possession e$e!%ted a gift of the said property in favo%r of his ife and son. 0he >%estion as that hether the gift deed o%ld be hit by lis pendensG 0he !o%rt held at the time hen the gift as
e$e!%ted# there as no s%it pending in the !o%rt related to the said property. <en!e# the gift is not hit by lis pendens.
&?, &0 "ilms exchange v# +#+# Mahara*a (Pla>a !inema case)-0he plaintiff gave Rs.5@2222:- to the respondents against the se!%rity of bales of !otton. 0he respondents also e$e!%ted a registered-mortgaged deed of pla;a !inema in favo%r of the plaintiffs to !lear the d%es. (s the plaintiffs ere %nable to re!over the d%es# they filed a s%it for the sale of Pla;a !inema. 0he theatre as atta!hed to the de!ree against the respondents. 8%ring the atta!hment# the respondent e$e!%ted an %nregistered lease deed in favo%r of some !ompany and they !ontended that they !arried on the b%siness sin!e 1*?2. 0heir lease finished in 1*?A and a ne registered lease as e$e!%ted in 1*@A. 0he time d%ring hi!h the property as in disp%te %nder a s%it in the !o%rt as beteen 1*@5-1*A2,. 0h%s the registered lease as e$e!%ted d%ring the lis pendens. Co%rt
held# that sin!e the lease as registered d%ring lis pendens# the right of the tenants ere s%b7e!t to the de!ision of the !o%rt.
!hatter*ee-Chapter-12 Mortgage &3e!tion @),
( mortgage is a kind of se!%rity given by the debtor to the !reditor. 0he ob7e!t of a mortgage is to se!%re the debt or other obligations. It prote!ts a !reditor# for even if the borroer be!omes insolvent the money !an be reali;ed from the property given by ay of se!%rity.
%6lements of Mortgage-1, 0ransfer of interest
5, 3pe!ifi! immovable property =, Consideration for Mortgage %Types of
Mortgages-1, 3imple mortgage (&ection 1?b)-Possession is not given to the !reditor b%t right to sell is given. 0he !reditor has no right to !olle!t rent from the mortgaged property. If the !reditor ants to sell the property in defa%lt of payment of his money# he has to take permission from the !o%rt first.
5, Mortgage on !ondition sale (&ection 1?c)-In this# the property is !onsidered as sold if !ondition set are met. &a, On !ondition that on defa%lt of payment of the money on a !ertain date the sale shall be!ome absol%te
&b, If the money is paid on the date fi$ed# the sale shall be!ome void
&!, On !ondition that on s%!h payment being made# the b%yer shall transfer the property to the seller In this kind of mortgage# the mortgagee has a >%alified onership.
=, Us%fr%!t%ary Mortgage (&ection 1?d)-Possession and en7oyment rights are given to the !reditor:mortgagee. <e !an !olle!t rent and !an also ad7%st the same in the interest amo%nt of the mortgage money or in the mortgage money itself or in both.
?, English Mortgage (&ection 1?e)-In this the title of the property is given to the !reditor:mortgagee by the mortgagor. y this he transfers the onership rights to the mortgagee and the if the payment of money is made on the fi$ed date# the mortgagee has to transfer the property ba!k to the mortgagor# by giving him the title. In this the mortgagee has the absol%te onership.
@, E>%itable Mortgage (&ection 1?f)-Only the property papers are given to the mortgagee or to his agent. 0here is no riting or other formalities re>%ired. 0his kind of mortgage is more !ommon here there is a s%dden need of money felt by someone.
A, (nomalo%s Mortgage (&ection 1?g)-( mortgage hi!h is none of the above is an (nomalo%s Mortgage. -Mode of Mortgage (&ection
1@)-1, Registered instr%ment 5, 8elivery of possession =, 8eposit of title deed
-$ight to redemption (&ection 49)%
Redemption means paying off the mortgage-money and getting the mortgaged property ba!k. It is the Right of redemption that lies ith the mortgagor that on payment of the money# he gets his property ba!k.
3e!tion A2 says- 0he mortgagee has the right to redeem &1, all the mortgage instr%ments and all the title deeds &5, delivery of possession by the mortgagee
&=, a retransfer of the property &at the mortgagor4s !ost, or an a!knoledgement of the e$tin!tion of the mortgagee4s rights.
-!log on redemption (nce a mortgage alays a mortgage)%( mortgage is alays redeemable. ( mortgagor# at any time after he has paid the mortgaged money ba!k to the mortgagor# he has a right to get his property ba!k &%ntil any de!ree of fore!los%re is passed in favo%r of the mortgagee in defa%lt of payment,. Right of redemption is a stat%tory right of the mortgagor and no la or !ontra!t !an take aay this right. 0his is be!a%se if the mortgagor is in need of money# then the position of the mortgagee is dominating and he !an p%t !ertain !ondition hi!h !an ork as a !log on the redemption of the property. 0he la in s%!h !onditions# prote!t the mortgagor and s%!h !onditions are !onsidered as void.
void-&1, If the !ondition is that in fail%re of payment of the mortgage money ithin a spe!ified time# the mortgagor ill have no right:!laim over the mortgaged property and the mortgage-deed ill be !onsidered as a sale deed.
0his !ondition is a !log and void. %t if the mortgagor himself e$e!%tes a sale deed in favo%r to mortgagee after the spe!ified time is over# then that sale deed is a valid deed.
&5, /ong term of mortgages# is not a !log in itself# %nless it is proved that there as a fra%d or %nd%e infl%en!e ith eviden!e of it. If it is proved# then the !ondition ill be void. (nd also# if the length is %nreasonable or
oppressive then it ill be a !log.
&=, 3tip%lation barring mortgagor4s Right of redemption after !ertain period-&?, Restraint on (lienation
&@, Redemption restri!ted to mortgagor &A, Penalty in !ase of
defa%lt-&1, 0angadhar v# &han<ar Lal (Long term clog)- 0he mortgage deed read I or my heirs ill not be entitled to redeem the property for a period of )@ years. (fter the e$piry of )@ years# e shall redeem it ithin A months otherise e shall have no !laim over the mortgaged property and the mortgagee shall have no right to !laim the money ba!k. 0his deed ill be !onsidered as a sale deed. 0he !o%rt held that long term mortgage is not a !log in itself %nless it is proved that the mortgagee has not taken %nd%e advantage of the !ondition of the mortgagor. 0here m%st not be any fra%d. If it is proved# then the mortgage is ith !log. It as held in that in the present !ase it is !lear that there as no %nfair advantage taken by the mortgagee and )@ years is not a !log in the !ir!%mstan!es of this !ase.
&5, P#2# 0ovind*i v# .#2# Purohit (Long term clog)-0he appellant made a mortgage deed in favo%r of mortgagee and in hi!h it as stated that the d%ration of the mortgage is for ** years and the mortgagor !an only !laim it after the e$piration of the said time. 0he mortgagee as given the f%ll possession of the land and there as another !la%se in the deed that the mortgagee has the right to make str%!t%ral !hanges in the said property and the mortgagor at the time of redemption has to pay all the e$penses in!%rred by the mortgagor on any !onstr%!tion or repair ork done by him. 0he mortgagee !onstr%!ted a ne str%!t%re by demolishing the old one. 0h%s# the Co%rt held that s%!h a !ondition is a !log on the mortgage and it makes !lear that the mortgagee took %nd%e advantage of the !ondition of mortgagor. <en!e# the mortgagor is alloed to redeem. &=, &# &ingh v# &#&ingh (Long term clog)-0he mortgagor as finan!ially tight. <e mortgaged a property for a !onsideration of Rs. +222:- to the mortgagee. 0he !ondition of the deed as that the mortgage is for ** years and he also en7oyed %s%fr%!ts of the said property. In order to arrange Rs. +222:- for the payment of the mortgage# the mortgagor sold some part of the mortgaged property to one (. 0he mortgagee ref%sed to give possession of the property. It as held by the !o%rt that the mortgagee as in a dominating position and took advantage of the plight of mortgagor by imposing a !log of ** years and not only this# he also kept on draing %s%fr%!ts from the said property for the last 5A years. It as de!lared a !log.
&?, �# Dhula v# & L Te*shi-(ny provision in the original mortgage-deed to the effe!t that if the debt is not paid at the proper time# the mortgagee shall be!ome the oner of the property is void# and indeed the !o%rts treat as void any provision hi!h !log the right to redeem i.e. either makes redemption %nd%ly diffi!%lt or provides that the mortgagee shall retain some right affe!ting property after the debt has been redeemed.
Chapter 1@
'ifts &3e!tion 155,
&ection 788-( gift is a transfer of the onership in an e$isting movable or immovable property made
vol%ntarily and itho%t !onsideration.
la!kstone-'ifts are alays grat%ito%s# grants are %pon some !onsiderations or e>%ivalent.
$euisites%1. 0o partners m%st be there
&a, 8onor-m%st be !ompetent-ma7or &a tr%stee and minor !annot make a gift,. &b, 8onee-may be of any age b%t if minor then g%ardian takes on his behalf 5. 'ift !an be made only of the e$isting property# gifts of any f%t%re property is not valid.
=. Property !an be movable or immovable# Corporeal or in!orporeal# a!tionable !laims# gift of mortgage ?. 'ift m%st be given vol%ntarily and no fra%d or misrepresentation sho%ld be there
@. 'ift sho%ld be itho%t !onsideration otherise it ill not be !onsidered as a gift A. (bsol%te interest:life interest:limited interest
+. (!!eptan!e
&a, of gift by the done is ne!essary otherise it ill be !onsidered as a void gift.
&b, sho%ld be given ithin the lifetime of the donor. &&if the donee dies before giving a!!eptan!e then the gift is void,.
&!, !o%ld be oral or ritten# e$press or implied.
&d, if the donee or anybody on his behalf# had not a!!epted the gift d%ring the lifetime of the donor# mere registration of the instr%ment:do!%ment ill not validate it.
). 0he gift deed m%st be attested by to persons. In !ase of movable property the instr%ment m%st be registered and in !ase of movable property it may be registered. ( gift of immovable property itho%t registered instr%ment is invalid even if the possession is given to the donee. (lso# the gift of immovable property if made orally is invalid %nless registered. If an instr%ment is registered after the death of the donor and itho%t the !onsent of his legal representative# then also it is valid. 3e!tion 15= does not affe!t the !ompleted ingredients of a !ompleted gift %:s 3e!tion 155 b%t it is 7%st a safety meas%re to ens%re that the gift as a valid gift. (&ection 78/)
.oid gifts%
&1, D%t%re property
&5, 'ift ith !onsideration
&=, 9here gifts are made of immovable property itho%t registered do!%ment &?, 9here donee dies before giving a!!eptan!e
&@, 'ift !onsisting of both e$isting and f%t%re property is void (&ection 785)
&A, If gift is made to to persons and one of them ref%ses to a!!ept# then the gift is void for him only. &+, 'ifts made for %nlaf%l p%rpose
&), 'ift by a person in!ompetent to !ontra!t
&*, 9here %nder an agreement beteen the parties# the gift is revo!able# holly or in part# at the mere ill of donor (&ection 784)
nerous 0ifts%gifts that !omes ith obligations. (&ection 78A)
&1, If (# gifts to # a gift !onsisting of shares of 6 and !ompany. 6 !ompany is in profit and in loss. 0he has no other option than to a!!ept the !omplete gift b%t he !annot a!!ept a part of it i.e. he !an4t a!!ept only the shares of 6 !ompany and ref%se to take the shares of . <e has to a!!ept the !omplete gift.
&5, %t if ( makes to separate gifts of shares of 6 and !ompany# then the donee !an a!!ept one and ref%se the other.
&uspension or $evocation of gift can be done in only to conditions% &1, In !ase of ind%!ement or misrepresentation
&5, Revo!ation by (greement- 0he !ondition of the agreement sho%ld not be illegal or immoral and sho%ld not be rep%gnant to the estate. oth# the donor and the donee m%st agree at the !ondition in the agreement.
-!ases
(7) Tila Bea v# Manu Bea -0he donor e$e!%ted a gift deed in favo%r of the donee on a !ondition that he o%ld look after and serve her d%ring her lifetime. 0he donee left her and remarried. 3he !an!elled the gift.
0he !o%rt said that it as only a pio%s ish of the donee to look after the donor and only on this !ondition the gift !annot be !an!elled. 0he !o%rt also said that firstly# there as no agreement beteen the both regarding the revo!ation# se!ondly this sho%ld not depend on the ill of the donor. <en!e# the gift !an4t be revoked.
(8) 2artari v# 2eal 2rishan (undue influence)-+2 year old ailing ido lady. 8a%ghter took !are of her. <er !ollaterals took her to some pla!e and made her sign a gift deed in their favo%r and they also got it registered. 8a%ghter !ame to kno abo%t it. Meanhile the lady died. 0he !ollaterals took the possession of the property as soon as she died. 8a%ghter filed the s%it and !ontended that the gift deed as taken by fra%d and %nd%e infl%en!e. 0he !o%rt held that it is !lear by the !ond%!t of the !ollaterals that the signat%res of the lady ere taken by fra%d and %nd%e infl%en!e as 7%st hen she died# they took the immediate possession of the property in iss%e. <en!e# the gift is void.
