Sections 1, 3, 5, 6, 7, 8, 10, 13, 14, 15,18, 19, 20, 21, 23, 25, 26, 27, 28, 29, 31, 35, 36, 37, 38, 39, 41, 42, 43, Sections 1, 3, 5, 6, 7, 8, 10, 13, 14, 15,18, 19, 20, 21, 23, 25, 26, 27, 28, 29, 31, 35, 36, 37, 38, 39, 41, 42, 43, 48, 53, 53A, 54, 55, 56, 58, 60,62, 67,
48, 53, 53A, 54, 55, 56, 58, 60,62, 67, 68, 69, 69A, 78, 81, 100, 105, 106, 107, 108, 109, 68, 69, 69A, 78, 81, 100, 105, 106, 107, 108, 109, 110, 122, 137 of The110, 122, 137 of The Transfer of Property Act, 1882. .
Transfer of Property Act, 1882. . Transfer by act of parties, vested and
Transfer by act of parties, vested and contingent interest, election, clog on, right to foreclosure,contingent interest, election, clog on, right to foreclosure, mortgage, sale, charge, lease and gift.
mortgage, sale, charge, lease and gift. PROPERTY LAW NOTES AND CASES PROPERTY LAW NOTES AND CASES Chapter 1: What is immovable property?
Chapter 1: What is immovable property? We know that property is
We know that property is the total wealth of a the total wealth of a person. It may include land, buildings, mortgage rights, debts owedperson. It may include land, buildings, mortgage rights, debts owed to him, insurance money due, cheques received, cash, etc.
to him, insurance money due, cheques received, cash, etc.
The Transfer of Property Act, 1882, defines immovable property as that which does not include standing timber, The Transfer of Property Act, 1882, defines immovable property as that which does not include standing timber, growing crops and grass. This is a very open-ended definition though, so we must look at the definition furnished growing crops and grass. This is a very open-ended definition though, so we must look at the definition furnished by the General Clauses Act, 1897,
by the General Clauses Act, 1897, wherein it is mentioned that wherein it is mentioned that immovable property includesimmovable property includes – –a) land, b) benefitsa) land, b) benefits arising out of land, c) things attached to the earth, or d) permanently fastened to anything attached to the earth. arising out of land, c) things attached to the earth, or d) permanently fastened to anything attached to the earth. Also, the
Also, the Registration Act Registration Act defines immovable defines immovable property as property as land, land, buildings, hereditary buildings, hereditary allowances, rights allowances, rights to ways,to ways, lights, ferries, fisheries, or any other benefits arising out of land and things attached to the earth, but not standing lights, ferries, fisheries, or any other benefits arising out of land and things attached to the earth, but not standing timber, growing crops or grass.
timber, growing crops or grass.
The Sale of Goods Act, which deals with the sale of movable property, says that movable property, or goods, The Sale of Goods Act, which deals with the sale of movable property, says that movable property, or goods, includes any property other than actionable claims and money. This is why transfer of any actionable claim is includes any property other than actionable claims and money. This is why transfer of any actionable claim is dealt with in the TOPA.
dealt with in the TOPA. CASE:
CASE:Ananda Behera v. State of Orissa Ananda Behera v. State of Orissa
The dispute was about fishing rights in the Chilka Lake, which was part of an estate owned by the Rajah of The dispute was about fishing rights in the Chilka Lake, which was part of an estate owned by the Rajah of Parikud. By the Orissa Estates Abolition Act, the estate became vested in the
Parikud. By the Orissa Estates Abolition Act, the estate became vested in the State of Orissa.State of Orissa.
The petitioner had obtained from the previous proprietor the right to fish in the lake, long before the property The petitioner had obtained from the previous proprietor the right to fish in the lake, long before the property became vested in the state. The State refused to recognize these licenses. The petitioner claimed that the became vested in the state. The State refused to recognize these licenses. The petitioner claimed that the transaction was based on the sale of future goods, and as fish was movable property, it should not be covered transaction was based on the sale of future goods, and as fish was movable property, it should not be covered under the act that a
under the act that abolished the estates.bolished the estates.
There can be no doubt that the lake is immovable property. Therefore, the state, in whom the right to the lake is There can be no doubt that the lake is immovable property. Therefore, the state, in whom the right to the lake is vested, can bar access to the lake for anyone else. The right the petitioner had was to catch and carry away fish vested, can bar access to the lake for anyone else. The right the petitioner had was to catch and carry away fish from the lake. Now, this amounts to a benefit arising out of land, and hence, should be covered under immovable from the lake. Now, this amounts to a benefit arising out of land, and hence, should be covered under immovable property. Also, fish is not standing timber, growing
property. Also, fish is not standing timber, growing crop, or grass!crop, or grass!
If it was a mere sale of goods, there should be an instrument to prove it, that is, a written and registered receipt. If it was a mere sale of goods, there should be an instrument to prove it, that is, a written and registered receipt. The sale in this case was oral.
The sale in this case was oral. The case is different from
The case is different fromFirm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh , where it was, where it was held that the right to pluck Tendu leaves from trees was not under the purview of immovable property, as it is held that the right to pluck Tendu leaves from trees was not under the purview of immovable property, as it is under the definition of a growing crop.
under the definition of a growing crop. Also, the state was not
Also, the state was not a part of the a part of the contract between the Rajah and the contract between the Rajah and the petitioner, so the state cannot be petitioner, so the state cannot be askedasked for the money, nor can
for the money, nor can the Rajah be asked to compensate, as he the Rajah be asked to compensate, as he did not breach the contract either. did not breach the contract either. The suit wasThe suit was dismissed.
dismissed.
(Question: What is
(Question: What isprofit a prendre profit a prendre ? Answer: It is a privilege or right to enter another’s land and take away some? Answer: It is a privilege or right to enter another’s land and take away some valuable, natural thing. For e
valuable, natural thing. For example, fish, wood, honey, etc.)xample, fish, wood, honey, etc.)
CASE:
CASE:Shantabai v. State of Bombay Shantabai v. State of Bombay The petitioner’s husband was a
The petitioner’s husband was a zamindar zamindar , who had executed an unregistered document in favour of the petitioner , who had executed an unregistered document in favour of the petitioner giving her the right to enter upon certain areas in the zamindari to cut and extract bamboo, fuel wood and teak. giving her the right to enter upon certain areas in the zamindari to cut and extract bamboo, fuel wood and teak. Only the lease for forest woods was given to her. Then the Madhya Pradesh Abolition of Proprietary Rights Act Only the lease for forest woods was given to her. Then the Madhya Pradesh Abolition of Proprietary Rights Act was passed and it was held that the petitioner no longer had an enforceable right against the state as far as was passed and it was held that the petitioner no longer had an enforceable right against the state as far as lumbering work was concerned, as all proprietary land became vested in the state. Justice Bose said in this case lumbering work was concerned, as all proprietary land became vested in the state. Justice Bose said in this case that a tree draws subsistence from the soil as long as it stands, and therefore, it is permanently attached to the that a tree draws subsistence from the soil as long as it stands, and therefore, it is permanently attached to the land and should be treated as immovable property. Standing timber must be in such a state that if cut, it can be land and should be treated as immovable property. Standing timber must be in such a state that if cut, it can be used straightaway for building houses, bridges, ships, etc. The rule is that if there is an intention to sever such used straightaway for building houses, bridges, ships, etc. The rule is that if there is an intention to sever such things as timber from the immovable property for the purpose of selling separately, then such separate items things as timber from the immovable property for the purpose of selling separately, then such separate items would constitute movable property. A tree can be said to be standing timber if it can be looked at as timber in all would constitute movable property. A tree can be said to be standing timber if it can be looked at as timber in all practical purposes, even if it is still standing. The deed for the transfer was unregistered, and the price was Rs. practical purposes, even if it is still standing. The deed for the transfer was unregistered, and the price was Rs. 26000, so the petitioner could
26000, so the petitioner could not execute any right against the not execute any right against the state. Appeal dismissed.state. Appeal dismissed. A debt secured by mor
DIFFERENCE BETWEEN PROPERTY LAW IN INDIA AND ENGLAND DIFFERENCE BETWEEN PROPERTY LAW IN INDIA AND ENGLAND
Indian law classifies property into movable and immovable. But English law divides property into realty and Indian law classifies property into movable and immovable. But English law divides property into realty and personalty. Realty was the kind of property which could be regained by a person if he lost possession of it, personalty. Realty was the kind of property which could be regained by a person if he lost possession of it, through a real action. If a person lost possession of land, he had the right to take the land back from the new through a real action. If a person lost possession of land, he had the right to take the land back from the new possessor. In the case of goods, if a
possessor. In the case of goods, if a person lost possession, he could not recover the goods, but he had the person lost possession, he could not recover the goods, but he had the rightright to recover damages. Such action taken was personal action, and hence, goods were termed as personalty. to recover damages. Such action taken was personal action, and hence, goods were termed as personalty. However, the Indian system is prevalent in the UK now, aft
However, the Indian system is prevalent in the UK now, after the Real er the Real Property Amendment Act of 1925.Property Amendment Act of 1925. FREEHOLD AND LEASEHOLD
FREEHOLD AND LEASEHOLD An estate is said
An estate is said to be freehold to be freehold when it is when it is vested in a person vested in a person for a definite for a definite period, which is of period, which is of uncertain duration.uncertain duration. For example, let us say Anubhab owns NUJS for life. Here, we know that as long
For example, let us say Anubhab owns NUJS for life. Here, we know that as longas the period of Anubhab’s lifeas the period of Anubhab’s life is running, NUJS is vested in him. However, we do not know how long he will survive, so the duration is is running, NUJS is vested in him. However, we do not know how long he will survive, so the duration is uncertain.
uncertain.
On the contrary, a leasehold estate is held by a person for a definite period and certain duration. For example, a On the contrary, a leasehold estate is held by a person for a definite period and certain duration. For example, a property may be leased to Anubhab for a period of 99 years. Thus, we know that it will be divested only after 99 property may be leased to Anubhab for a period of 99 years. Thus, we know that it will be divested only after 99 years pass.
years pass.
Chapter 2: What Property is Transferable? Chapter 2: What Property is Transferable? The TOPA deals with transfer of property
The TOPA deals with transfer of propertyinter vivos inter vivos (between living persons). Hence, it does not apply to wills or (between living persons). Hence, it does not apply to wills or testaments, which operate only after the death of the testator. Dedication of property to a temple or
testaments, which operate only after the death of the testator. Dedication of property to a temple or a deity is alsoa deity is also invalid, as these are not living persons. However, sections 13, 14 and 20 make an exception, by allowing invalid, as these are not living persons. However, sections 13, 14 and 20 make an exception, by allowing transfers in favour of unborn persons, with certain
transfers in favour of unborn persons, with certain restrictions. This is quoted inrestrictions. This is quoted inSection 5Section 5of the act.of the act.
If a holder of property relinquishes his rights over it to the coparcener, or a widow gives up her right to the If a holder of property relinquishes his rights over it to the coparcener, or a widow gives up her right to the reversioner (person in whom the property is vested once the original possessor gives up his right to it) in order to reversioner (person in whom the property is vested once the original possessor gives up his right to it) in order to accelerate his succession, they are not transfers, but merely extinction of rights in property. Partition of property accelerate his succession, they are not transfers, but merely extinction of rights in property. Partition of property is also not a transfer, but only a change in the mode of enjoyment of the property. Transfer of future property is is also not a transfer, but only a change in the mode of enjoyment of the property. Transfer of future property is invalid, that is, you cannot
invalid, that is, you cannot transfer property that is not in existence.transfer property that is not in existence.
In England, after the Law of Property Act, 1925 was passed, the creation and conveying of estate tail and life In England, after the Law of Property Act, 1925 was passed, the creation and conveying of estate tail and life estate became banned. Only estate in fee simple and
estate became banned. Only estate in fee simple and estate for a term of years were valid. In estate for a term of years were valid. In India, all 4 of India, all 4 of thesethese estates can be conveyed or created under the
estates can be conveyed or created under the TOPA.TOPA. Estate in fee simple
Estate in fee simple – – This implies absolute ownership. When a fee simple tenant dies, the estate passes to theThis implies absolute ownership. When a fee simple tenant dies, the estate passes to the nearest heir.
nearest heir. Estate tail
Estate tail – – It is created on the grantor’s request when on the grantee’s death, the estate goes to the grantee’sIt is created on the grantor’s request when on the grantee’s death, the estate goes to the grantee’s lineal descendants, or heirs of the body. If there are no such heirs, it reverts back to the grantor, or if the grantor lineal descendants, or heirs of the body. If there are no such heirs, it reverts back to the grantor, or if the grantor is dead, the grantor’s representatives.
is dead, the grantor’s representatives. Life Estate
Life Estate – –It arises when an estate is granted to the grantee for the period of life of the grantee or of any other It arises when an estate is granted to the grantee for the period of life of the grantee or of any other person. In the second case, it is
person. In the second case, it is known asknown asper autre vie per autre vie .. Estate for term of years
Estate for term of years – –The property is transferred for a definite The property is transferred for a definite period of time.period of time. A family arrangement
A family arrangement of a of a disputed claim is disputed claim is also not also not a transfer of a transfer of property. It is property. It is recognition of prerecognition of pre-existent rights-existent rights and does not convey any new or
and does not convey any new or distinct title to the distinct title to the parties.parties. CASE:
CASE:Kalyani v. Narayanan Kalyani v. Narayanan
Here, a man named Karappan had two wives, Nani and Ponni. Two of the defendants, the plaintiff’s husband, Here, a man named Karappan had two wives, Nani and Ponni. Two of the defendants, the plaintiff’s husband, and the deceased father of three more defendants were born of his first wife, in addition to 4 daughters (a very and the deceased father of three more defendants were born of his first wife, in addition to 4 daughters (a very fertile woman indeed!), and his second wife had a son and 2 daughters. The family was governed by Mitakshara fertile woman indeed!), and his second wife had a son and 2 daughters. The family was governed by Mitakshara law, and Karappan had e
law, and Karappan had executed a registered deed for the partition xecuted a registered deed for the partition of the property. Karappan had property worthof the property. Karappan had property worth 8000. He gave 1300 to each of his male issues. 300 went to his first wife and 1000 to his second wife. 200 went 8000. He gave 1300 to each of his male issues. 300 went to his first wife and 1000 to his second wife. 200 went to his stepmother. Karappan died, and soon after this, Raman, his third son and husband of the plaintiff, followed to his stepmother. Karappan died, and soon after this, Raman, his third son and husband of the plaintiff, followed daddy upstairs. Widowed Kalyani sued for partition and separate possession of her 1/4
daddy upstairs. Widowed Kalyani sued for partition and separate possession of her 1/4ththshare in the property.share in the property. The defendants held that the Karappan and his sons were coparceners of the property, and thus, Karappan had The defendants held that the Karappan and his sons were coparceners of the property, and thus, Karappan had no authority to execute such a deed. They also contended that the 4 sons were coparceners to the property, and no authority to execute such a deed. They also contended that the 4 sons were coparceners to the property, and succession depended on survival. Since Kalyani’s husband was dead, therefore, she could not get the property. succession depended on survival. Since Kalyani’s husband was dead, therefore, she could not get the property. It was ancestral property, and all 4 sons had acquired interests to it by birth. Therefore, Karappan had no right to It was ancestral property, and all 4 sons had acquired interests to it by birth. Therefore, Karappan had no right to dispose of by will ancestral property in his hand. A Hindu father cannot impose such a family arrangement dispose of by will ancestral property in his hand. A Hindu father cannot impose such a family arrangement
DIFFERENCE BETWEEN PROPERTY LAW IN INDIA AND ENGLAND DIFFERENCE BETWEEN PROPERTY LAW IN INDIA AND ENGLAND
Indian law classifies property into movable and immovable. But English law divides property into realty and Indian law classifies property into movable and immovable. But English law divides property into realty and personalty. Realty was the kind of property which could be regained by a person if he lost possession of it, personalty. Realty was the kind of property which could be regained by a person if he lost possession of it, through a real action. If a person lost possession of land, he had the right to take the land back from the new through a real action. If a person lost possession of land, he had the right to take the land back from the new possessor. In the case of goods, if a
possessor. In the case of goods, if a person lost possession, he could not recover the goods, but he had the person lost possession, he could not recover the goods, but he had the rightright to recover damages. Such action taken was personal action, and hence, goods were termed as personalty. to recover damages. Such action taken was personal action, and hence, goods were termed as personalty. However, the Indian system is prevalent in the UK now, aft
However, the Indian system is prevalent in the UK now, after the Real er the Real Property Amendment Act of 1925.Property Amendment Act of 1925. FREEHOLD AND LEASEHOLD
FREEHOLD AND LEASEHOLD An estate is said
An estate is said to be freehold to be freehold when it is when it is vested in a person vested in a person for a definite for a definite period, which is of period, which is of uncertain duration.uncertain duration. For example, let us say Anubhab owns NUJS for life. Here, we know that as long
For example, let us say Anubhab owns NUJS for life. Here, we know that as longas the period of Anubhab’s lifeas the period of Anubhab’s life is running, NUJS is vested in him. However, we do not know how long he will survive, so the duration is is running, NUJS is vested in him. However, we do not know how long he will survive, so the duration is uncertain.
uncertain.
On the contrary, a leasehold estate is held by a person for a definite period and certain duration. For example, a On the contrary, a leasehold estate is held by a person for a definite period and certain duration. For example, a property may be leased to Anubhab for a period of 99 years. Thus, we know that it will be divested only after 99 property may be leased to Anubhab for a period of 99 years. Thus, we know that it will be divested only after 99 years pass.
years pass.
Chapter 2: What Property is Transferable? Chapter 2: What Property is Transferable? The TOPA deals with transfer of property
The TOPA deals with transfer of propertyinter vivos inter vivos (between living persons). Hence, it does not apply to wills or (between living persons). Hence, it does not apply to wills or testaments, which operate only after the death of the testator. Dedication of property to a temple or
testaments, which operate only after the death of the testator. Dedication of property to a temple or a deity is alsoa deity is also invalid, as these are not living persons. However, sections 13, 14 and 20 make an exception, by allowing invalid, as these are not living persons. However, sections 13, 14 and 20 make an exception, by allowing transfers in favour of unborn persons, with certain
transfers in favour of unborn persons, with certain restrictions. This is quoted inrestrictions. This is quoted inSection 5Section 5of the act.of the act.
If a holder of property relinquishes his rights over it to the coparcener, or a widow gives up her right to the If a holder of property relinquishes his rights over it to the coparcener, or a widow gives up her right to the reversioner (person in whom the property is vested once the original possessor gives up his right to it) in order to reversioner (person in whom the property is vested once the original possessor gives up his right to it) in order to accelerate his succession, they are not transfers, but merely extinction of rights in property. Partition of property accelerate his succession, they are not transfers, but merely extinction of rights in property. Partition of property is also not a transfer, but only a change in the mode of enjoyment of the property. Transfer of future property is is also not a transfer, but only a change in the mode of enjoyment of the property. Transfer of future property is invalid, that is, you cannot
invalid, that is, you cannot transfer property that is not in existence.transfer property that is not in existence.
In England, after the Law of Property Act, 1925 was passed, the creation and conveying of estate tail and life In England, after the Law of Property Act, 1925 was passed, the creation and conveying of estate tail and life estate became banned. Only estate in fee simple and
estate became banned. Only estate in fee simple and estate for a term of years were valid. In estate for a term of years were valid. In India, all 4 of India, all 4 of thesethese estates can be conveyed or created under the
estates can be conveyed or created under the TOPA.TOPA. Estate in fee simple
Estate in fee simple – – This implies absolute ownership. When a fee simple tenant dies, the estate passes to theThis implies absolute ownership. When a fee simple tenant dies, the estate passes to the nearest heir.
nearest heir. Estate tail
Estate tail – – It is created on the grantor’s request when on the grantee’s death, the estate goes to the grantee’sIt is created on the grantor’s request when on the grantee’s death, the estate goes to the grantee’s lineal descendants, or heirs of the body. If there are no such heirs, it reverts back to the grantor, or if the grantor lineal descendants, or heirs of the body. If there are no such heirs, it reverts back to the grantor, or if the grantor is dead, the grantor’s representatives.
is dead, the grantor’s representatives. Life Estate
Life Estate – –It arises when an estate is granted to the grantee for the period of life of the grantee or of any other It arises when an estate is granted to the grantee for the period of life of the grantee or of any other person. In the second case, it is
person. In the second case, it is known asknown asper autre vie per autre vie .. Estate for term of years
Estate for term of years – –The property is transferred for a definite The property is transferred for a definite period of time.period of time. A family arrangement
A family arrangement of a of a disputed claim is disputed claim is also not also not a transfer of a transfer of property. It is property. It is recognition of prerecognition of pre-existent rights-existent rights and does not convey any new or
and does not convey any new or distinct title to the distinct title to the parties.parties. CASE:
CASE:Kalyani v. Narayanan Kalyani v. Narayanan
Here, a man named Karappan had two wives, Nani and Ponni. Two of the defendants, the plaintiff’s husband, Here, a man named Karappan had two wives, Nani and Ponni. Two of the defendants, the plaintiff’s husband, and the deceased father of three more defendants were born of his first wife, in addition to 4 daughters (a very and the deceased father of three more defendants were born of his first wife, in addition to 4 daughters (a very fertile woman indeed!), and his second wife had a son and 2 daughters. The family was governed by Mitakshara fertile woman indeed!), and his second wife had a son and 2 daughters. The family was governed by Mitakshara law, and Karappan had e
law, and Karappan had executed a registered deed for the partition xecuted a registered deed for the partition of the property. Karappan had property worthof the property. Karappan had property worth 8000. He gave 1300 to each of his male issues. 300 went to his first wife and 1000 to his second wife. 200 went 8000. He gave 1300 to each of his male issues. 300 went to his first wife and 1000 to his second wife. 200 went to his stepmother. Karappan died, and soon after this, Raman, his third son and husband of the plaintiff, followed to his stepmother. Karappan died, and soon after this, Raman, his third son and husband of the plaintiff, followed daddy upstairs. Widowed Kalyani sued for partition and separate possession of her 1/4
daddy upstairs. Widowed Kalyani sued for partition and separate possession of her 1/4ththshare in the property.share in the property. The defendants held that the Karappan and his sons were coparceners of the property, and thus, Karappan had The defendants held that the Karappan and his sons were coparceners of the property, and thus, Karappan had no authority to execute such a deed. They also contended that the 4 sons were coparceners to the property, and no authority to execute such a deed. They also contended that the 4 sons were coparceners to the property, and succession depended on survival. Since Kalyani’s husband was dead, therefore, she could not get the property. succession depended on survival. Since Kalyani’s husband was dead, therefore, she could not get the property. It was ancestral property, and all 4 sons had acquired interests to it by birth. Therefore, Karappan had no right to It was ancestral property, and all 4 sons had acquired interests to it by birth. Therefore, Karappan had no right to dispose of by will ancestral property in his hand. A Hindu father cannot impose such a family arrangement dispose of by will ancestral property in his hand. A Hindu father cannot impose such a family arrangement
without his sons’ consent after his death. The second wife’s so
without his sons’ consent after his death. The second wife’s son had already taken his share out and left then had already taken his share out and left the family. Therefore, the brothers were tenants-in-common, and the property was allowed to be divided. 1/4
family. Therefore, the brothers were tenants-in-common, and the property was allowed to be divided. 1/4ththshareshare was granted to the plaintiff.
was granted to the plaintiff. Section 6
Section 6of the act talks about what kinds of property may be transferred and what may not be transferred. Inof the act talks about what kinds of property may be transferred and what may not be transferred. In section 6(a), we find that the chance of an heir-apparent succeeding to an estate, the chance of a relative section 6(a), we find that the chance of an heir-apparent succeeding to an estate, the chance of a relative obtaining a legacy on the death of his kinsman, or any other such mere possibility, cannot be transferred. These obtaining a legacy on the death of his kinsman, or any other such mere possibility, cannot be transferred. These things mentioned in clause (a) are known as
things mentioned in clause (a) are known asspes successionis spes successionis . It means a mere chance, or bare possibility. It is. It means a mere chance, or bare possibility. It is different from future interest. In Indian
different from future interest. In Indian law, the transfer of an law, the transfer of an expectancy or any agreement to transfer expectancyexpectancy or any agreement to transfer expectancy are both void.
are both void. CASE:
CASE:Annada Mohan Roy v. Gour Mohan Mullick Annada Mohan Roy v. Gour Mohan Mullick
In this case, the appellant purchased from the respondents their rights expectant, under the will of their uncle, In this case, the appellant purchased from the respondents their rights expectant, under the will of their uncle, upon the termination of his surviving widow’s rights. Later, there was a compromise between
upon the termination of his surviving widow’s rights. Later, there was a compromise betweenthe widow and thethe widow and the respondents as a result of which the respondents got certain properties. The appellants filed a suit for the respondents as a result of which the respondents got certain properties. The appellants filed a suit for the recovery of the properties from the respondents. The court held
recovery of the properties from the respondents. The court held that the transfer was of that the transfer was of aaspes successionis spes successionis , and, and was thus forbidden by the
was thus forbidden by the TOPA.TOPA. CASE:
CASE:Karpagathachi v. Nagarathinathachi Karpagathachi v. Nagarathinathachi 2
co-2 co-widows divided their husband’s properties into 2 shares and took separate possessions, with each widowwidows divided their husband’s properties into 2 shares and took separate possessions, with each widow giving up her life interest under the partition deed. The respondent is the daughter of the widow who died. The giving up her life interest under the partition deed. The respondent is the daughter of the widow who died. The surviving widow filed a suit against the daughter for recovery of the property in her mother’s possession, alleging surviving widow filed a suit against the daughter for recovery of the property in her mother’s possession, alleging that the arrangement by which her
that the arrangement by which her right of survivorship was relinquished was repugnant to right of survivorship was relinquished was repugnant to section 6(a). The courtsection 6(a). The court said that the interest of
said that the interest of each widow was property, and this, along with the incidental each widow was property, and this, along with the incidental right of survivorship could beright of survivorship could be lawfully transferred. The section might prohibit the transfer of the bare chance of the surviving widow taking the lawfully transferred. The section might prohibit the transfer of the bare chance of the surviving widow taking the entire property as the next heir of the husband, but it does not prohibit the transfer by the widow of her present entire property as the next heir of the husband, but it does not prohibit the transfer by the widow of her present interest together with the incidental right of survivorship to the daughter. Suit dismissed. The ratio is that right of interest together with the incidental right of survivorship to the daughter. Suit dismissed. The ratio is that right of survivorship can be transferred.
survivorship can be transferred.
(Question: What is reversion? Answer: If I grant my land to Pritam for life, Pritam becomes entitled to it. On (Question: What is reversion? Answer: If I grant my land to Pritam for life, Pritam becomes entitled to it. On Pritam’s death, the land would be returned to my possession, and this is called reversion. Suppose now, that I Pritam’s death, the land would be returned to my possession, and this is called reversion. Suppose now, that I grant a life estate to Pichu and t
grant a life estate to Pichu and then a fee simple [which would imply absolute ownership and reversion to hen a fee simple [which would imply absolute ownership and reversion to Pichu’sPichu’s nearest heir, say Bulba], then Bulba’s estate will be called ‘Remainder’. It may either be a vested remainder, as in nearest heir, say Bulba], then Bulba’s estate will be called ‘Remainder’. It may either be a vested remainder, as in this case, or a contingent remainder, say, with a
this case, or a contingent remainder, say, with a condition of Bulba condition of Bulba cracking CLAT.)cracking CLAT.) CASE:
CASE:Amrit Narayan v. Gaya Singh Amrit Narayan v. Gaya Singh
The guardian of a minor reversioner entered into a contract with the female holder of property that the properties The guardian of a minor reversioner entered into a contract with the female holder of property that the properties would be relinquished in favour of other relatives. In a suit for the reversioner for possession of property after the would be relinquished in favour of other relatives. In a suit for the reversioner for possession of property after the female’s death, it was held that he had no right or interest at the time when the agreement was made, because female’s death, it was held that he had no right or interest at the time when the agreement was made, because the female owner was holding the property for life. Until it vested in him on her death, he had nothing to a
the female owner was holding the property for life. Until it vested in him on her death, he had nothing to assign or ssign or relinquish or transfer. He, being the reversioner, has a right only after her death, and until then it is mere
relinquish or transfer. He, being the reversioner, has a right only after her death, and until then it is merespes spes successionis.
successionis. EASEMENTS EASEMENTS An
An easement easement is is a a right right which the which the owner oowner or r possessor of possessor of certain certain immovable property immovable property possesses for possesses for the the proper proper enjoyment of the property (this must have a dominant heritage), like a right of way over adjoining property (which enjoyment of the property (this must have a dominant heritage), like a right of way over adjoining property (which enjoys servient heritage). Since the right cannot subsist without the dominant heritage, the right of easement enjoys servient heritage). Since the right cannot subsist without the dominant heritage, the right of easement alone cannot be transferred. This is outlin
alone cannot be transferred. This is outlined in clause (c).ed in clause (c).
Clauses (f), (g) and (h) are prohibited based on public policy. An office is granted to a person on personal Clauses (f), (g) and (h) are prohibited based on public policy. An office is granted to a person on personal grounds, and he alone can discharge the duties, and hence, be entitled to the salary. Loss of such remuneration grounds, and he alone can discharge the duties, and hence, be entitled to the salary. Loss of such remuneration might mean a lack of
might mean a lack of inducement to perform duties and temptation to accept bribes.inducement to perform duties and temptation to accept bribes. Section 7
Section 7of the TOPA says that any person, who has the capacity to contract and is entitled to transferableof the TOPA says that any person, who has the capacity to contract and is entitled to transferable property or authorized to dispose of such property, can transfer such property. In
property or authorized to dispose of such property, can transfer such property. InMohari Bibi v. Dharmodas Mohari Bibi v. Dharmodas , , itit was held that a
was held that a conveyance of land by a minor is void, as conveyance of land by a minor is void, as he is not competent to contract.he is not competent to contract. Section 8
Section 8says that a transfer of property to a transferee transfers all the interests which the transferor can passsays that a transfer of property to a transferee transfers all the interests which the transferor can pass in the property (e.g. rents, profits, benefits arising from it, things attached to earth, etc.), unless a different in the property (e.g. rents, profits, benefits arising from it, things attached to earth, etc.), unless a different intention is expressly or impliedly present.
intention is expressly or impliedly present. CASE:
One Ramchandra dies, and gifts his property to his elder daughter Laxmi. On Laxmi’s death, her husband takes One Ramchandra dies, and gifts his property to his elder daughter Laxmi. On Laxmi’s death, her husband takes possession, claiming right as her heir. He mortgages the property to the appellant, Nathoo Lal. Meanwhile, after possession, claiming right as her heir. He mortgages the property to the appellant, Nathoo Lal. Meanwhile, after 12 years, the son of the other daughter (Bhuri) returns and claims the property, saying his aunt Laxmi only had a 12 years, the son of the other daughter (Bhuri) returns and claims the property, saying his aunt Laxmi only had a limited stake in it. The court observed that unless there are express terms in the deed of gift to indicate the donor limited stake in it. The court observed that unless there are express terms in the deed of gift to indicate the donor who had the absolute interest, a gift in favour of an heir who inherits a limited interest cannot be understood as who had the absolute interest, a gift in favour of an heir who inherits a limited interest cannot be understood as an absolute interest. Court held that to
an absolute interest. Court held that to convey an absolute estate to Hindu female no express power of alienationconvey an absolute estate to Hindu female no express power of alienation need be given. The words
need be given. The words used in the gift used in the gift deed were of amplitude enough to deed were of amplitude enough to convey full ownership to Laxmi.convey full ownership to Laxmi.TheThe appellant won the case.
appellant won the case.
ACTIONAB
ACTIONABLE CLAIMLE CLAIM
Actionable claim means a claim to any debt, other than debt secured by m
Actionable claim means a claim to any debt, other than debt secured by mortgage/pledge of immovable property,ortgage/pledge of immovable property, or to any beneficial interest in movable property not in the possession of the claimant, which are recognized by or to any beneficial interest in movable property not in the possession of the claimant, which are recognized by law as affording grounds for relief.
law as affording grounds for relief.
Chapter 3: General Rules regarding Transfer of Property Chapter 3: General Rules regarding Transfer of Property
Sections 10-18 contain the first set of rules that must be observed when alienating property. There is a principle Sections 10-18 contain the first set of rules that must be observed when alienating property. There is a principle in economics that wealth should be in free circulation so that the greatest benefit can be derived from it, and in economics that wealth should be in free circulation so that the greatest benefit can be derived from it, and hence these sections provide that ordinarily there should not be any restraint on alienation.
hence these sections provide that ordinarily there should not be any restraint on alienation. Section 10
Section 10provides that where property is transferred based on a condition or limitation which absolutelyprovides that where property is transferred based on a condition or limitation which absolutely restrains the transferee or any person claiming under him from parting with or disposing of the interest in restrains the transferee or any person claiming under him from parting with or disposing of the interest in property, such condition or limitation is void. There are exceptions in the case of a lease where the condition is property, such condition or limitation is void. There are exceptions in the case of a lease where the condition is for the benefit of the lessor, and when the property is transferred to or for the benefit
for the benefit of the lessor, and when the property is transferred to or for the benefit of a woman so that she shallof a woman so that she shall not have power during her
not have power during her marriage to transfer or charge the same fmarriage to transfer or charge the same for her beneficial interest.or her beneficial interest. In almost all property law systems, the rule is
In almost all property law systems, the rule isalienatio rei praefertur juri accrescendi alienatio rei praefertur juri accrescendi , that is, the law favours, that is, the law favours alienation of property rather than
alienation of property rather than accumulation.accumulation. Section 10 must be read with
Section 10 must be read withSection 12Section 12which says that where property is transferred subject to a condition or which says that 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 limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or trying to dispose of the same, such condition or limitation is void. Nothing in this clause becoming insolvent or trying to dispose of the same, such condition or limitation is void. Nothing in this clause applies to a condition in lease for the lessor’s benefit.
applies to a condition in lease for the lessor’s benefit. A condition which says that
A condition which says that the transferee will not the transferee will not transfer his interest in a transfer his interest in a property for 3 years or property for 3 years or that he will that he will notnot transfer it to any member of a p
transfer it to any member of a particular family is partial restraint and is therefore aarticular family is partial restraint and is therefore allowed. But if a condition existsllowed. But if a condition exists saying that the transferee is prevented from
saying that the transferee is prevented from transferring his property to anyone but the transferring his property to anyone but the transferor or his heirs andtransferor or his heirs and that too only if they are willing to buy, it constitutes absolute restraint, and is void. Assume that a situation arises that too only if they are willing to buy, it constitutes absolute restraint, and is void. Assume that a situation arises where Suman, Arghya and Dipayan partition a joint property and agree that if anyone of them does not have a where Suman, Arghya and Dipayan partition a joint property and agree that if anyone of them does not have a baby, he should not sell his property to anyone else, but leave it for the other two. This is a case of absolute baby, he should not sell his property to anyone else, but leave it for the other two. This is a case of absolute restraint. If I sell a property to Biju and Biju independently executes an agreement whereby he states that if he restraint. If I sell a property to Biju and Biju independently executes an agreement whereby he states that if he wants to sell the property he would only sell it to
wants to sell the property he would only sell it to me, the agreement would be valid, because I did not impme, the agreement would be valid, because I did not impose anyose any condition against alienation at the time of transfer. Biju himself added the condition.
condition against alienation at the time of transfer. Biju himself added the condition. As far
As far as lessors as lessors are concerned, are concerned, the condition the condition is good is good only if only if it it is for is for the benefit the benefit of the of the lessor, for lessor, for example, if example, if aa conveyance gives the power to the lessor to re-enter
conveyance gives the power to the lessor to re-enter (take control of the property once it is out (take control of the property once it is out of his possession)of his possession) instead of merely entitling to damages.
instead of merely entitling to damages. Restraints on the power of alienation i
Restraints on the power of alienation in favour of married women (who are not Hindus, Muslims or Buddhists) willn favour of married women (who are not Hindus, Muslims or Buddhists) will be valid. Under old English law, a husband and wife were looked at as one legal entity. All the property of the be valid. Under old English law, a husband and wife were looked at as one legal entity. All the property of the woman would become her husband’s on marriage, and she could not dispose of it without his consent, and nor woman would become her husband’s on marriage, and she could not dispose of it without his consent, and nor could she devise a will. The Married Women’s Property Act of
could she devise a will. The Married Women’s Property Act of 1882 changed this. Thenceforth, the transferor has1882 changed this. Thenceforth, the transferor has the power to decide to what extent he wants to restrain the woman’s power of alienation. Such provision can be the power to decide to what extent he wants to restrain the woman’s power of alienation. Such provision can be used to prevent a married woman from alienating her
used to prevent a married woman from alienating her property as long as she is undeproperty as long as she is under her husbar her husband’s protection.nd’s protection. Section 13
Section 13of the act provides that when an interest (the interest must, of course, be subject to a prior interest,of the act provides that when an interest (the interest must, of course, be subject to a prior interest, as you cannot directly transfer to a person unborn) is created for the benefit of a person not yet born on the date as you cannot directly transfer to a person unborn) is created for the benefit of a person not yet born on the date of the transfer, the interest will not take effect unless it extends to the entire remaining interest of the transferor in of the transfer, the interest will not take effect unless it extends to the entire remaining interest of the transferor in the property. Example
the property. Example – – say Johnny transfers a property to Pony, and after Johnny’s death to the eldest son of say Johnny transfers a property to Pony, and after Johnny’s death to the eldest son of Pony and after his death to the youngest son, the interest created for the eldest son is void, because the Pony and after his death to the youngest son, the interest created for the eldest son is void, because the remainder does not go to
Children in the womb and children adopted by a lady after her husband’s death are deemed to be in existen Children in the womb and children adopted by a lady after her husband’s death are deemed to be in existence for ce for this purpose.
this purpose. Again,
Again, this this section section exhibits exhibits that that law law favours favours free free circulation circulation of of property. property. This This section section foils foils thetheDe Donis De Donis Conditionalibus
Conditionalibus statute. This is also knowstatute. This is also known as the rule against Double Possibility. n as the rule against Double Possibility. The court foils the attempt of The court foils the attempt of owners to create a series of
owners to create a series of future interests.future interests. Difference between English and Indian law
Difference between English and Indian law – – the rule of double possibility is more stringent in Indian law. Say athe rule of double possibility is more stringent in Indian law. Say a property is vested in X for life, to Y, an unborn child on X’s death, and to Z on Y’s death. In Englis
property is vested in X for life, to Y, an unborn child on X’s death, and to Z on Y’s death. In English law, theh law, the interest created for Z is void, as it requires double possibility
interest created for Z is void, as it requires double possibility – – 1) birth of Y before X’s death, and 2) death of Y1) birth of Y before X’s death, and 2) death of Y before Z.
before Z.
In Indian law, interests in favour of both Y and Z are void, as the remainder does not go to Y on X’s death, but In Indian law, interests in favour of both Y and Z are void, as the remainder does not go to Y on X’s death, but there is a chance of it vesting in Z as well.
there is a chance of it vesting in Z as well.
Under this section, 3 conditions must be complied with for the interest to be valid
Under this section, 3 conditions must be complied with for the interest to be valid – – 1) interest of the unborn1) interest of the unborn person must be preceded by a prior interest in favour of a living person, 2) the unborn person must be in person must be preceded by a prior interest in favour of a living person, 2) the unborn person must be in existence when the prior interest comes to an end, and 3) the interest must be the whole of the remaining interest existence when the prior interest comes to an end, and 3) the interest must be the whole of the remaining interest of the transferor, a life interest will not do, must be an absolute interest.
of the transferor, a life interest will not do, must be an absolute interest. CASE:
CASE:Ganendramohun Tagore v. Juttendramohun Tagore Ganendramohun Tagore v. Juttendramohun Tagore
This was an 1872 case, and the law now stands changed. The defendants were trustees under the will of one This was an 1872 case, and the law now stands changed. The defendants were trustees under the will of one Prosonocoomar Tagore, and the plaintiff was his son. The defendants were tenants for life. Prosonocoomar died Prosonocoomar Tagore, and the plaintiff was his son. The defendants were tenants for life. Prosonocoomar died in 1868, and his will provided nothing for his heirless son. This is probably because his son had converted to in 1868, and his will provided nothing for his heirless son. This is probably because his son had converted to Christianity. All of the testator’s property was stipulated to go to the 4 trustees. Much of the property was granted Christianity. All of the testator’s property was stipulated to go to the 4 trustees. Much of the property was granted to Juttendramohun for his life, and after his life, to his eldest s
to Juttendramohun for his life, and after his life, to his eldest son who would be born during the testator’s life, andon who would be born during the testator’s life, and thereafter to the sons of the eldest son. The plaintiff contended that the will was void save as far as thereafter to the sons of the eldest son. The plaintiff contended that the will was void save as far as Juttendramohun’s life interest was concerned, and thereafter, he himself should receive the propert
Juttendramohun’s life interest was concerned, and thereafter, he himself should receive the property. He alsoy. He also said that it was an ancestral estate, which the testator had no right to dispose of this way. The High Court had said that it was an ancestral estate, which the testator had no right to dispose of this way. The High Court had dismissed the plaint.
dismissed the plaint.Sreemutty Soorjemoney v. Denobundoo Mullick Sreemutty Soorjemoney v. Denobundoo Mullick is referred to. English law says that ais referred to. English law says that a person must be in existence to take under a will.
person must be in existence to take under a will.
Court held that Juttendromohun had a life interest, after which, the will fails, and the property passes to the Court held that Juttendromohun had a life interest, after which, the will fails, and the property passes to the plaintiff as the testator’s heir
plaintiff as the testator’s heir -at-law.-at-law. Section 14
Section 14enshrines the rule against perpetuity. It says that the property cannot be transferred if it is to takeenshrines the rule against perpetuity. It says that the property cannot be transferred if it is to take effect after the lifetime of one or more persons living at the date of transfer, and the minority of some person who effect after the lifetime of one or more persons living at the date of transfer, and the minority of some person who shall be in existence at the expiration of the period, to whom the interest is to belong on attainment of adulthood. shall be in existence at the expiration of the period, to whom the interest is to belong on attainment of adulthood. Confused? Me too… Let’s
Confused? Me too… Let’s exemplify.exemplify.
Suppose a grant is made to A for life and the remainder goes to A’s eldest son 3 years after A’s death. Here, the Suppose a grant is made to A for life and the remainder goes to A’s eldest son 3 years after A’s death. Here, the beneficiary must be a minor at the time of A’s death. However, his enjoyment of the
beneficiary must be a minor at the time of A’s death. However, his enjoyment of theproperty can be delayed tillproperty can be delayed till he is a major. In English law, however, an absolute period of 21 years is permitted after the death of the person he is a major. In English law, however, an absolute period of 21 years is permitted after the death of the person concerned who had the prior interest. So, the second beneficiary may be major on the date of the first one’s concerned who had the prior interest. So, the second beneficiary may be major on the date of the first one’s death.
death.Read Sarathi for more illustrations on this, page 57.Read Sarathi for more illustrations on this, page 57. CASE:
CASE:Ganesh Sonar v. Purnendu Narayan Singha Ganesh Sonar v. Purnendu Narayan Singha The
plaintiff-The plaintiff-respondent’s father had granted a registered lease in favour of the defendantrespondent’s father had granted a registered lease in favour of the defendant-appellant for the-appellant for the purpose of a homestead. One of the conditions of the lease was that the lessor would have the right of re-entry purpose of a homestead. One of the conditions of the lease was that the lessor would have the right of re-entry upon the land at anytime and at such time the lessee would have to vacate the property, being entitled to the upon the land at anytime and at such time the lessee would have to vacate the property, being entitled to the money value of any constructions he may have made. The instrument said
money value of any constructions he may have made. The instrument said that the defendant and his that the defendant and his heirs wouldheirs would enjoy the property until the plaintiff wanted it back for creation of a
enjoy the property until the plaintiff wanted it back for creation of ahat hat . The appellants’ counsel contended that. The appellants’ counsel contended that the agreement to the option given to the lessor to determine the lease and take possession of the leasehold land the agreement to the option given to the lessor to determine the lease and take possession of the leasehold land was a covenant between the parties and offended the rule against perpetuities. However, it was held in
was a covenant between the parties and offended the rule against perpetuities. However, it was held inRama Rama Rao v. Thimmappa
Rao v. Thimmappa that a clause entitling a lessor to terminate the lease at anytime which is described asthat a clause entitling a lessor to terminate the lease at anytime which is described as permanent and which is to be enjoyed from generation to generation does not offend the rule against permanent and which is to be enjoyed from generation to generation does not offend the rule against perpetuities. In this case, it was merely a personal covenant and not one which created an interest in land, and perpetuities. In this case, it was merely a personal covenant and not one which created an interest in land, and therefore, no offence to the rule. It was also contended that the covenant was for relinquishment by the lessee to therefore, no offence to the rule. It was also contended that the covenant was for relinquishment by the lessee to the lessor, and not the lessor’s heirs. This contention was baseless, as the deed stated otherwise. So, the
the lessor, and not the lessor’s heirs. This contention was baseless, as the deed stated otherwise. So, the appealappeal was dismissed.
was dismissed.
Chapter 7: Equitable Rules When Property Rights Conflict Chapter 7: Equitable Rules When Property Rights Conflict CASE:
CASE:MacQueen v. Ramcoomar Koondoo MacQueen v. Ramcoomar Koondoo
The case dealt with the doctrine of holding out as enunciated in section 41. The respondent’s father, Ramdhone, The case dealt with the doctrine of holding out as enunciated in section 41. The respondent’s father, Ramdhone, had purchased a property from one Bunnoo Bibi. The Koondoos had since that time possessed the property. had purchased a property from one Bunnoo Bibi. The Koondoos had since that time possessed the property.
Bunnoo Bibi was the mistress of one Alexander MacDonald, and the appellant in this case is the husband of Alexander’s daughter Maria. It appears that the purchase of property by Bunnoo Bibi was abenami transaction,
and that Alexander was the real purchaser, having simply used Bunnoo’s name in the transaction. The appellant’s claimed that their father had purchased the property with a bona fide belief that Bunnoo was the real owner. They contended that they had not only paid full value at the time of the transaction, but also occupied the property for more than 30 years. The High Court held that Ramdhone should have made an enquiry as to Bunnoo Bibi’s status. However, the Privy Council held that an enquiry would have revealed that MacDonald was in possession, and he had sufficiently improved the property by building a bungalow on it. Bunnoo Bibi’s statement in the instrument also said that the transfer was with the support of her family, and thus, it would have been prudent for Ramdhone to have looked at whether she was entitled to transfer the property or not. Thus, the appeal was allowed.
CASE: Nagubai Ammal v. Shama Rao
The properties in dispute belonged to one Munuswami who died leaving behind a widow and three sons. In 1919, the widow filed a suit in forma pauperis for maintenance and marriage expenses of her daughters. The suit was decreed in 1921. In 1920, the properties were sold to the appellant’s predecessor. In execution of the maintenance decree which also created a charge on the suit properties, the decree-holder purchased the properties in 1928. The widow’s side contended that the sale of 1920 was attacked by the doctrine of lis pendens and the purchaser contended that the sale of 1928 was null and void. It was held that the sale of 1920 was pendente lite and that the sale of 1928 to the widow was valid.
CASE: Abdul Shakoor v. Arji Papa Rao
A sale deed was executed in 1949 with respect to a part of the assets of the vendors. A creditor (defendant) of the vendors filed for recovery of his debt and attached that property. A purchaser (plaintiff) filed a suit to have the summary order set aside. The creditor contended that the sale was made to the purchaser with the intention of defrauding the creditors. The Court held that the fact that all the vendor’s property had not been sold would not repel the application of section 53(1), unless there was proof that there was other property left sufficient in value to pay off the creditor. Thus, the decision was reached that it was not a bona fide purchase, and it was made with the intention of putting the property out of the creditor’s reach.
Chapter 9: Doctrine of Part Performance
The doctrine is enshrined in Section 53A which basically states that even if there is no formal instrument of transfer, if the transferee has paid consideration and there is an agreement to transfer between the parties the transfer is valid because it has been partly performed, and the defendant cannot be evicted.
CASE: Maneklal Mansukhbhai v. Hormusji Jamshedji
There was a lease agreement between the two parties through a series of correspondences. The defendant was put in possession of the property. Rent was also collected for several years. However, there was no formal lease deed ever executed. When the plaintiff tried to eject the defen dant on the grounds that he was trespassing, it was held that section 53A aimed at defending a person who has no registered title deed I maintaining his property if he could produce a signed contract and some action on his part in part performance of the contract. The building of a factory on t he land, in this case, was construed by the court as part performance.
Chapter 10: Sale of Immovable Property
There is a difference between ‘contract for sale’ and ‘contract of sale’.
A ‘contract for sale’ is an agreement between the parties as to the various terms and conditions based on which the property will be sold. It does not create any interests in the propertyper se.
A ‘contract of sale’ creates an interest in the property concerned. It is basically the formal legal instrument or conveyance which evidences the sale of the property.
SKN/NUJS/3rdYr-6thSem/2007 SOME MODEL QUESTIONS ON PROPERTY LAW.
(WITH ANSWERS) (Please supplement this reading material with text books)
Q1.. Name three immovable properties other than house and landed property.
Ans 1: The law of transfer of property , as contained in the Transfer of Property Act, 1882 , does not contain an exhaustive definition of immovable property. Immovable property has been defined to be one which does not include standing timber, growing crops or grass.
By any generic legal sense immovable property not only means tangible immovable property like land, building and structure standing on land etc, it also includes some intangible rights like,
a) the equity of redemption,
b) right to collect rents of immovable property, c) right of ferry,
d) a right of way, e) a right of fishery,
f) a debt secured by mortgage of immovable property,
g) a right to graze cattle or mow grass,
h) the interest of a mortgagee in immovable property.
Q2. What do you understand by transfer of property?
Ans 2: Section 5 of the T.P Act specifies that the expression transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act. It also specifies that “living persons” includes a company or association or body of individuals whether incorporated or not. However, nothing shall affect any law relating to transfer of property to or by companies, association or bodies of individuals..
Q3. Specify five things which may not be transferred.
Ans 3: Section 6 of the T.P Act provides that
a) the chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of kinsman, or any other mere possibility , of a like nature, cannot be transferred,
b) a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby
c) an easement cannot be transferred apart from the dominant heritage
d) an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him
e) a mere right to sue cannot be transferred
f) a public office cannot be transferred, nor can the salary of a public officer,
g) stipends allowed to military, naval, air force and civil pensioners of the government and political pensions cannot be transferred.
Q4. When does a transfer of property operate?
Ans 4: Section 8 of the T.P. Act provides that unless a different intention is expressed or
necessarily implied, a transfer of property passes forthwith to the transferee all the interest
which the transferor, then capable of passing in the property, and legal incident thereof.
Q5. (a) How can a sale of immovable property be made?
(b) How can a mortgage of an immovable property be effected? (c) How can a lease of immovable property be made?
(d) How can a gift be effected?.
Ans 5: (a) As per Section 54 of the T.P. Act a sale of any tangible immovable property of the value of one hundred rupees and upwards, can be ma de only by a registered instrument.
If the value of the property is less than one hundred rupees, such transfer may be made either by a registered instrument or by deliver of the property.
Ans 5(b) As per provision of Section 59 of the T.P. Act where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Ans 5(c) Section 107 of the T.P. Act provides that a lease of a immovable property from year
to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a
registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Such registered instruments shall be executed by both the lessor and the lessee.
Ans 5(d) Section 123 of the T.P. Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
A gift of movable property may be effected either by a registered instrument signed as aforesaid, or by delivery.
Q6. A gifts his house X to M, his son-in-law with a condition that he cannot sell it to
anybody. Is the transfer valid in law? If so, why? If not, why? Specify the reason for your
answer.
Ans 6: Sec 10 of the T.P Act provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void (except in case of a lease, where the condition is for the benefit of the lessor).
In the instant case A makes a gift of his house property X to his son in law M, subject
to a condition restraining M from alienating the said property absolutely. The transfer stands
but the condition is void. This signifies that once the transfer takes effect M is not bound by
the condition.
Q7. A sells his flat to B, his brother at a concessional price on condition that he cannot
lease out the property and induct a tenant therein. Explain the validity of the transfer, with
reason.
Ans 7: Section 11 of the TP Act provides that where, on a transfer of property an interest therein is created absolutely in favour of any person, but the terms of transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there was no such condition.
In the instant case when A sells his flat to B at a concessional price, signifying that the transfer, notwithstanding that it was at a concessional price, was intended to be absolute in nature. In that case the transferee B is entitled to receive the property as if there was no such condition..
Q8. A, who is to marry B, transfers his property X in favour of B, his intended wife for life
and after her death, to S1, the eldest son of the intended marriage for life and then to S2,
the second son. Was the transfer valid? Specify the reason for your answer.
Ans 8: Section 13 of the T.P. Act provides that 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.
In the instant case the transfer in favour of S1, after the life time of B, shall not take
effect because of the fact that the said transfer in favour of S1 was limited for his life and
does not extend to the whole of the remaining interest of A in the property. The transfer is
valid up to the life time of B and the transfer made in favour of S1 fails and as the transfer in
favour of S1 fails, the transfer in favour of S2, being dependant on the transfer in favour of
S1, also fails.
Q9. A transfer his house property X to S1, his unborn son, absolutely. Comment with
reasons on the legality of the transfer.
Ans 9: As per provisions of Section 13 of the T.P.Act no interest in favour of an unborn person for his benefit can be created except through a prior interest created by the same transfer in favour of a person living on the date of transfer. Accordingly any transfer directly in favour of an unborn person is void in law. It also offends the provisions of Section 5 of the T.P.Act, which indicates that atransfer of property signifies a transfer of property between two living persons.
Q10. A transfers his house property X to B for life, then to C for life and then to C’s son,
unborn on the date when A made the transfer, absolutely. Comment with reasons on the
legality of the transfer.
Ans 10: As per provisions of Section 13 and 14 of the T.P. Act an interest in favour of an
unborn person for his through some prior interest created by the same transfer in favour of
some person or persons living on the date of transfer. Another requirement of Section 13 is
that such interest created in favour of an unborn person must extend to the whole of the
remaining interest of the transferor. This in other words means that the transferor cannot
keep anything reserve for himself and the transfer must be absolute.
In the instant case a prior interest is created in favour of B, a person living on the date of transfer and thereafter to C’s son, unborn on the date of transfer. The transfer in favour of the unborn person is absolute and hence in consonance with the requirement of law. (The only thing is that the unborn son must come into existence before expiration of the prior interest,. i.e. before the death of B.)
