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, 68, 69, 69A, 78, 81, 100, 105, 106, 107, 108, 109, 110, 122 , 13 7 of The Tra Tr ansfer of Prope rty rty Act, 1882. .
Tra ns fe r by act of parties, este! an! contin"ent interest, e#ection, c#o" on, ri"ht to forec#os$re, %ort"a"e, sa#e, char"e, #ease an! "ift.
P&'P(&T) * A+ 'T(S AA- AS(S
hapter 1/ + hat is i%%oab#e property
We know that property is the total wealth of a person. It may include land, buildings, mortgage rights, debts owed to him, insurance money due, cheques received, cash, etc. The Transfer of Property Act, !!", defines immovable property as that which does not include standing timbe r, growing crops and grass. This is a very open#ended definition though, so we must look at the definition furnished by the $eneral %lauses Act, !&', wherein it is mentioned that immovable property includes ( a) land, b) benefits arising out of land, c) things attached to the earth, or d) permanently fastened to anything attached to the earth. Also, the *egistration Act defines immovable property as land, buildings, hereditary allowances, rights to ways, 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. The +ale of $oods 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 dealt with in the TPA. TPA.
%A+- Anand %A+- Ananda Behera v. State o f Orissa The condition of transfer is immoral or opposed to public policy and voi
The dispute was about fishing rights in the %hilka /ake, which was part of an estate owned by the *a0ah of Parikud. 1y the rissa -states Abolition Act, the estate became vested in the +tate of rissa. 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 +tate refused to recogni2e 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 under the act that abolished the estates. 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 from the lake. 3ow, this amounts to a benefit arising out of land, and hence, should be covered under immovable property. Also, fish is not standing timber, growing crop, or grass4 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 case is different from Firm from Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh, Pradesh , where it was 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. Also, the state was not a part of the contract between the *a0ah and the petitioner, so the state cannot be asked for the money, nor can the *a0ah be asked to compensate, as he did not breach the contract either. The suit was dismissed.
$estion/ +hat is profit a prendre Anser/ t is a prii#e"e or ri"ht to enter anothers #an! an! tae aay so%e a#$ab#e, nat$ra# thin". or ea%p#e, fish, oo!, honey, etc.
%A+ - S hanta hantaba baii v. v. S tate tate o f Bo Bomba y
The condition of transfer is immoral or opposed to public policy and voi
The dispute was about fishing rights in the %hilka /ake, which was part of an estate owned by the *a0ah of Parikud. 1y the rissa -states Abolition Act, the estate became vested in the +tate of rissa. 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 +tate refused to recogni2e 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 under the act that abolished the estates. 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 from the lake. 3ow, this amounts to a benefit arising out of land, and hence, should be covered under immovable property. Also, fish is not standing timber, growing crop, or grass4 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 case is different from Firm from Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh, Pradesh , where it was 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. Also, the state was not a part of the contract between the *a0ah and the petitioner, so the state cannot be asked for the money, nor can the *a0ah be asked to compensate, as he did not breach the contract either. The suit was dismissed.
$estion/ +hat is profit a prendre Anser/ t is a prii#e"e or ri"ht to enter anothers #an! an! tae aay so%e a#$ab#e, nat$ra# thin". or ea%p#e, fish, oo!, honey, etc.
%A+ - S hanta hantaba baii v. v. S tate tate o f Bo Bomba y
The condition of transfer is immoral or opposed to public policy and voi
The petitioner5s husband was a 2amindar, who had e6ecuted an unregistered document in favour of the petitioner giving her the right to enter upon certain areas in the 2amindari to cut and e6tract bamboo, fuel wood and teak. nly the lease for forest woods was given to her. Then the 7adhya Pradesh Abolition of Proprietary *ights Act was passed and it was held that the petitioner no longer had an enforceable right against the state as far as lumbering work was concerned, as all proprietary land became vested in the state. 8ustice 1ose said in this case that a tree draws subsistence from the soil as long as it stands, and therefore, it is permanently attached atta ched to the land and should be treated as immovable immovab le property. +tanding timber must be in such a state that if cut, it can be used straightaway for building houses, bridges, ships, etc. The rule is that if there is an intention intentio n to sever such things as timber from the immovable property for the purpose of selling separately, then such separate items would constitute movable property. A tree can be said to be standing timber if it can be looked at as timber in all practical purposes, even if it is still standing. The deed for the transfer was unregistered, and the price was *s. "9:::, so the petitioner could not e6ecute any right against the state. Appeal dismissed. A debt secured by mortgage of immovable property is itself immovable property. ;I<<-*-3%- 1-TW--3 P*P-*T= /AW I3 I3;IA A3; -3$/A3;
Indian law classifies property into movable and immovable. 1ut -nglish law divides property into realty and personalty. *ealty 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 possessor. In the case of goods, if a person lost possession, he could not recover the goods, but he had the right to recover damages. +uch action taken was personal action, and hence, goods were termed as personalty. >owever, the Indian system is prevalent in the ?@ now, after the *eal Pro perty Amendment Act of &".
<*-->/ ; A3; /-A+->/ ;
The condition of transfer is immoral or opposed to public policy and voi
An estate is said to be freehold when it is vested in a person for a definite period, which is of uncertain duration.
ere, we know that as long as the period of Anubhab5s life is running, 3?8+ is vested in him. >owever, we do not know how long he will survive, so the duration is uncertain. n the contrary, a leasehold estate is held by a person for a definite period and certain duration.
hapter 2/ + hat Property is Transferab#e
The TPA deals with transfer of property inter vivos Bbetween living persons). >ence, it does not apply to wills or testaments, which operate only after the death of the testator. ;edication of property to a temple or a deity is also invalid, as these are not living persons. >owever, sections C, D and ": make an e6ception, by allowing transfers in favour of unborn persons, with certain restrictions. This is quoted in Section 5 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 reversioner Bperson 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 e6tinction of rights in property. Partition of property is also not a transfer, but only a change in the mode of en0oyment of the property. Transfer of future property is invalid, that is, you cannot transfer property that is not in e6istence. In -ngland, after the /aw of Property Act, &" was passed, the creation and conveying of estate tail and life estate became banned. nly estate in fee simple and estate for a term of years were valid. In India, all D of these estates can be conveyed or created under the TPA. -state in fee simple ( This implies absolute ownership. When a fee simple tenant dies, the estate passes to the nearest heir.
The condition of transfer is immoral or opposed to public policy and voi
-state tail ( It is created on the grantor5s request when on the grantee5s death, the estate goes to the grantee5s 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 grantor5s representatives. /ife -state ( 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 known as per autre vie. -state for term of years ( The property is transferred for a definite period of time.
A family arrangement of a disputed claim is also not a transfer of property. It is recognition of pre #e6istent rights and does not convey any new or distinct title to the parties.
%A+ - alyani v. !ar a yanan
>ere, a man named @arappan had two wives, 3ani and Ponni. Two of the defendants, the plaintiff5s husband, and the deceased father of three more defendants were born of his first wife, in addition to D daughters Ba very fertile woman indeed4), and his second wife had a son and " daughters. The family was governed by 7itakshara law, and @arappan had e6ecuted a registered deed for the partition of the property. @arappan had property worth !:::. >e gave C:: to each of his male issues. C:: went to his first wife and ::: to his second wife. ":: went to his stepmother. @arappan died, and soon after this, *aman, his third son and husband of the plaintiff, followed daddy upstairs. Widowed @alyani sued for partition and separate possession of her EDth share in the property. The defendants held that the @arappan and his sons were coparceners of the property, and thus, @arappan had no authority to e6ecute such a deed. They also contended that the D sons were coparceners to the property, and succession depended on survival. +ince @alyani5s husband was dead, therefore, she could not get the property. It was ancestral property, and all D sons had acquired interests to it by birth. Therefore, @arappan had no right to dispose of by will ancestral property in his hand. A >indu father cannot impose such a family arrangement without his sons5 consent after his death. The second wife5s son had already taken his share The condition of transfer is immoral or opposed to public policy and voi
out and left the family. Therefore, the brothers were tenants#in#common, and the property was allowed to be divided. ED th share was granted to the plaintiff.
Section 6 of the act talks about what kinds of property may be transferred and what may not
be transferred. In section 9Ba), 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 things mentioned in clause Ba) are known as spes su""essionis. It means a mere chance, or bare possibility. It is different from future interest. In Indian law, the transfer of an e6pectancy or any agreement to transfer e6pectancy are both void.
%A+- Annada Mohan #oy v. $our Mohan Mulli"%
In this case, the appellant purchased from the respondents their rights e6pectant, under the will of their uncle, upon the termination of his surviving widow5s rights. /ater, there was a compromise between the widow and 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 that the transfer was of a spes su""essionis, and was thus forbidden by the TPA.
%A+ - ar pa atha"hi v. ! a ar athinatha"hi
" co#widows divided their husband5s properties into " 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 surviving widow filed a suit against the daughter for recovery of the property in her mother5s possession, alleging that the arrangement by which her right of survivorship was relinquished was repugnant to section 9Ba). The court said that the interest of each widow was property, and this, along with the incidental right of survivorship could be lawfully transferred. The section might prohibit the transfer of the bare chance of the The condition of transfer is immoral or opposed to public policy and voi
surviving widow taking the entire property as the ne6t 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. +uit dismissed. The ratio is that right of survivorship can be transferred.
$estion/ +hat is reersion
Answer If I grant my land to Pritam for life, Pritam becomes entitled to it. n Pritam5s death, the land would be returned to my possession, and this is called reversion. +uppose now, that I grant a life estate to Pichu and then a fee simple Fwhich would imply absolute ownership and reversion to Pichu5s nearest heir, say 1ulbaG, then 1ulba5s estate will be called H*emainder5. It may either be a vested remainder, as in this case, or a contingent remainder, say, with a condition of 1ulba.
%A+- Amrit !arayan v. $aya Sinh
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 female5s 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. ?ntil it vested in him on her death, he had nothing to assign or relinquish or transfer. >e, being the reversioner, has a right only after her death, and until then it is mere spes su""essionis.
-A+- 7- 3T+
An easement is a right which the owner or possessor of certain immovable property possesses for the proper en0oyment of the property Bthis must have a dominant heritage), like a right of way over ad0oining property Bwhich en0oys servient heritage). +ince the right cannot subsist
The condition of transfer is immoral or opposed to public policy and voi
without the dominant heritage, the right of easement alone cannot be transferred. This is outlined in clause Bc).
%lauses Bf), Bg) and Bh) 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. /oss of such remuneration might mean a lack of inducement to perform duties and temptation to accept bribes.
Section 7 of the TPA says that any person, who has the capacity to contract and is
entitled to transferable property or authori2ed to dispose of such property, can transfer such property. In Mohari Bibi v. 'harmodas, it was held that a conveyance of land by a minor is void, as he is not competent to contract.
Section 8 says that a transfer of property to a transferee transfers all the interests which the
transferor can pass in the property Be.g. rents, profits, benefits arising from it, things attached to earth, etc.), unless a different intention is e6pressly or impliedly present.
%A+ - !athoo (al v. 'ur a P ra sad ne *amchandra dies, and gifts his property to his elder daughter /a6mi. n /a6mi5s death, her husband takes possession, claiming right as her heir. >e mortgages the property to the appellant, 3athoo /al. 7eanwhile, after " years, the son of the other daughter B1huri) returns and claims the property, saying his aunt /a6mi only had a limited stake in it. The court observed that unless there are e6press terms in the deed of gift to indicate the d onor who had the absolute interest, a gift in favour of an heir who inherits a limited interest cannot be understood as an absolute interest. %ourt held that to convey an absolute estate to >indu female no e6press power of alienation need be given. The words used in the gift deed were of amplitude enough to convey full ownership to /a6mi. The appellant won the case. The condition of transfer is immoral or opposed to public policy and voi
A%TI3A1/- %/AI7
Actionable claim means a claim to any debt, other than debt secured by mortgageEpledge of immovable property, or to any beneficial interest in movable property not in the possession of the claimant, which are recogni2ed by law as affording grounds for relief. hapter 3/ :enera# &$#es re"ar!in" Transfer of Property
+ections :#! 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 hence these sections provide that ordinarily there should not be any restraint on alienation.
Section 10 provides 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 property, such condition or limitation is void. There are e6ceptions 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 of a woman so that she shall not have power during her marriage to transfer or charge the same for her beneficial interest.
In almost all property law systems, the rule is alienatio rei praefertur )uri a""res"endi, that is, the law favours alienation of property rather than accumulation.
+ection : must be read with Section 12 which says that where property is transferred sub0ect to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or trying to dispose of the same, such condition or limitation is void. 3othing in this clause applies to a condition in lease for the lessor5s benefit. The condition of transfer is immoral or opposed to public policy and voi
A condition which says that the transferee will not transfer his interest in a property for C years or that he will not transfer it to any member of a particular family is partial restraint and is therefore allowed. 1ut if a condition e6ists saying that the transferee is prevented from transferring his property to anyone but the transferor 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 where +uman, Arghya and ;ipayan partition a 0oint 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 restraint. If I sell a property to 1i0u and 1i0u independently e6ecutes an agreement whereby he states that if he wants to sell the property he would only sell it to me, the agreement would be valid, because I did not impose any condition against alienation at the time of transfer. 1i0u himself added the condition.
As far as lessors are concerned, the condition is good only if it is for the benefit of the lessor, for e6ample, if a conveyance gives the power to the lessor to re#enter Btake control of the property once it is out of his possession) instead of merely entitling to damage s.
*estraints on the power of alienation in favour of married women Bwho are not >indus, 7uslims or 1uddhists) will be valid. ?nder old -nglish law, a husband and wife were looked at as one legal entity. All the property of the woman would become her husband5s on marriage, and she could not dispose of it without his consent, and nor could she devise a will. The 7arried Women5s Property Act of !!" changed this. Thenceforth, the transferor has the power to decide to what e6tent he wants to restrain the woman5s power of alienation. +uch provision can be used to prevent a married woman from alienating her property as long as she is under her husband5s protection.
Section 13 of the act provides that when an interest Bthe interest must, of course, be sub0ect 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 of the transfer, the interest will not take effect unless it The condition of transfer is immoral or opposed to public policy and voi
e6tends to the entire remaining interest of the transferor in the property. -6ample ( say 8ohnny transfers a property to Pony, and after 8ohnny5s 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 remainder does not go to him but the younger son is also included. %hildren in the womb and children adopted by a lady after her husband5s death are deemed to be in e6istence for this purpose.
Again, this section e6hibits that law favours free circulation of property. This section foils the 'e 'onis Conditionalibus statute. This is also known as the rule against ;ouble Possibility. The court foils the attempt of owners to create a series of future interests.
;ifference between -nglish and Indian law ( the rule of double possibility is more stringent in Indian law. +ay a property is vested in for life, to =, an unborn child on 5s death, and to J on =5s death. In -nglis h law, the interest created for J is void, as it requires double possibility ( ) birth of = before 5s death, and ") death of = before J. In Indian law, interests in favour of both = and J are void, as the remainder does not go to = on 5s death, but there is a chance of it vesting in J as well. ?nder this section, C conditions must be complied with for the interest to be valid ( ) interest of the unborn person must be preceded by a prior interest in favour of a living person, ") the unborn person must be in e6istence when the prior interest comes to an end, and C) the interest must be the whole of the remaining interest of the transferor, a life interest will not do, must be an absolute interest.
%A+ - $anend ra mohun T a ore v. Juttend r amohun T aor e
This was an !'" 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 in !9!, and his will provided nothing for his heirless son. This is probably because his son had converted to %hristianity. All of the testator5s property The condition of transfer is immoral or opposed to public policy and voi
was stipulated to go to the D trustees. 7uch of the property was granted to 8uttendramohun for his life, and after his life, to his eldest son who would be born during the testator5s life, and thereafter to the sons of the eldest son. The plaintiff contended that the will was void save as far as 8uttendramohun5s life interest was concerned, and thereafter, he himself should receive the property. >e also said that it was an ancestral estate, which the testator had no right to dispose of this way. The >igh %ourt had dismissed the plaint. Sreemutty Soor)emoney v. 'enobundoo Mulli"% is referred to. -nglish law says that a person must be in e6istence to take under a will. %ourt held that 8uttendromohun had a life interest, after which, the will fails, and the property passes to the plaintiff as the testator5s heir#at#law.
Section 14 enshrines 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 shall be in e6istence at the e6piration of the period, to whom the interest is to belong on attainme nt of adulthood. %onfusedK 7e tooL /et5s e6emplify.
+uppose a grant is made to A for life and the remainder goes to A5s eldest son C years after A5s death. >ere, the beneficiary must be a minor at the time of A5s death. >owever, his en0oyment of the property can be delayed till he is a ma0or. In -nglish law, however, an absolute period of " years is permitted after the death of the person concerned who had the prior interest. +o, the second beneficiary may be ma0or on the date of the first one5s death. Read Sarathi for more illustrations on this, page 57.
%A+- $anesh Sonar v. Purnendu !arayan Sinha
The plaintiff#respondent5s father had granted a registered lease in favour of the defendant# appellant for the purpose of a homestead. ne of the conditions of the lease was that the lessor would have the right of re#entry upon the land at anytime and at such time the lessee would The condition of transfer is immoral or opposed to public policy and voi
have to vacate the property, being entitled to the money value of any constructions he may have made. The instrument said that the defendant and his heirs would en0oy the property until the plaintiff wanted it back for creation of a hat . The appellants5 counsel contended that the agreement to the option given to the lessor to determine the lease and take possession of the leasehold land was a covenant between the parties and offended the rule against perpetuities. >owever, it was held in #ama #ao v. Thimmappa that a clause entitling a lessor to terminate the lease at anytime which is described as permanent and which is to be en0oyed from generation to generation does not offend the rule against perpetuities. In this case, it was merely a personal covenant and not one which created an interest in land, and therefore, no offence to the rule. It was also contended that the covenant was for relinquishment by the lessee to the lessor, and not the lessor5s heirs. This contention was baseless, as the deed stated otherwise. +o, the appeal was dismissed.
hapter 7/ (;$itab#e &$#es +hen Property &i"hts onf#ict
%A+- Ma"*ueen v. #am"oomar oondoo
The case dealt with the doctrine of holding out as enunciated in section D. The respondent5s father, *amdhone, had purchased a property from one 1unnoo 1ibi. The @oondoos had since that time possessed the property. 1unnoo 1ibi was the mistress of one Ale6ander 7ac;onald, and the appellant in this case is the husband of Ale6ander5s daughter 7aria. It appears that the purchase of property by 1unnoo 1ibi was a benamitransaction, and that Ale6ander was the real purchaser, having simply used 1unnoo5s name in the transaction. The appellant5s claimed that their father had purchased the property with a bona fide belief that 1unnoo was the real owner. They contended that they had not only paid full value at the time of the transaction, but also o ccupied the property for more than C: years. The >igh %ourt held that *amdhone should have made an enquiry as to 1unnoo 1ibi5s status. >owever, the Privy %ouncil held that an enquiry would have revealed that 7ac;onald was in possession, and he had sufficiently The condition of transfer is immoral or opposed to public policy and voi
improved the property by building a bungalow on it. 1unnoo 1ibi5s statement in the instrument also said that the transfer was with the support of her family, and thus, it would have been prudent for *amdhone to have looked at whether she was entitled to transfer the property or not. Thus, the appeal was allowed.
%A+ - !a ubai Ammal v. S hama #ao
The properties in dispute belonged to one 7unuswami who died leaving behind a widow and three sons. In &&, the widow filed a suit in forma pauperis for maintenance and marriage e6penses of her daughters. The suit was decreed in &". In &":, the properties were sold to the appellant5s predecessor. In e6ecution of the maintenance decree which also created a charge on the suit properties, the decree#holder purchased the properties in &"!. The widow5s side contended that the sale of &": was attacked by the doctrine of lis pendens and the purchaser contended that the sale of &"! was null and void. It was held that the sale of &": was pendente lite and that the sale of &"! to the widow was valid.
%A+- Abdul Sha%oor v. Ar )i Papa #ao
A sale deed was e6ecuted in &D& with respect to a part of the assets of the vendors. A creditor Bdefendant) of the vendors filed for recovery of his debt and attached that property. A purchaser Bplaintiff) 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 %ourt held that the fact that all the vendor5s property had not been sold would not repel the application of section CB), 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 creditor5s reach.
hapter 9/ -octrine of Part Perfor%ance The condition of transfer is immoral or opposed to public policy and voi
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.
%A+- Mane%lal Mansu%hbhai v. +ormu s)i Jamshed )i
There was a lease agreement between the two parties through a series of correspondences. The defendant was put in possession of the property. *ent was also collected for several years. >owever, there was no formal lease deed ever e6ecuted. When the plaintiff tried to e0ect the defendant on the grounds that he was trespassing, it was held that section CA 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 the land, in this case, was construed by the court as part performance.
hapter 10/ Sa#e of %%oab#e Property
There is a difference between Hcontract for sale5 and Hcontract of sale5.
A Hcontract for sale5 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 property per se. A Hcontract of sale5 creates an interest in the property concerned. It is basically the formal legal instrument or conveyance which evidences the sale of the property.
The condition of transfer is immoral or opposed to public policy and voi
S'<( < '-(* =(ST'S ' P&'P(&T) *A+. +T> AS+(&S
P#ease s$pp#e%ent this rea!in" %ateria# ith tet boos
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, !!" ,
does not contain an e6haustive definition of immovable property. Immovable property has been defined to be one which does not include standing timber, growing crops or grass.
1y 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 gra2e cattle or mow grass, h) the interest of a mortgagee in immovable property.
The condition of transfer is immoral or opposed to public policy and voi
Q. !hat do you understand by transfer of property" Ans : +ection of the T.P Act specifies that the e6pression 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 personsM and Nto transfer propertyO is to perform such act. It also specifies that Nliving personsO includes a company or association or body of individuals whether incorporated or not. >owever, nothing shall affect any law relating to transfer of property to or by companies, association or bodies of individuals.. Q#. Spe$ify five things %hi$h may not be transferred. Ans #: +ection 9 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 e6cept 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 en0oyment 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. Q&. !hen does a transfer of property operate" Ans &: +ection ! of the T.P. Act provides that unless a different intention is e6pressed or
necessarily implied, a transfer of property passes forth%ith to the transferee all the interest which the transferor, then $apable of passing in the property, and legal incident thereof.
The condition of transfer is immoral or opposed to public policy and voi
Q5. 'a( )o% $an a sale of immovable property be made" 'b( )o% $an a mortgage of an immovable property be effe$ted" '$( )o% $an a lease of immovable property be made" 'd( )o% $an a gift be effe$ted". Ans 5: Ba) As per +ection D of the T.P. Act a sale of any tangible immovable property of the
value of one hundred rupees and upwards, can be made 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 +ection & 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 t%o %itnesses. Ans 5'$( +ection :' of the T.P. Act provides that a lease of a immovable property from year to year, or for any term e6ceeding 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 a$$ompanied by delivery of possession.
+uch registered instruments shall be e*e$uted by both the lessor and the lessee. Ans 5'd( +ection "C 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 t%o %itnesses. A gift of movable property may be effected either by a registered instrument signed as aforesaid, or by delivery.
The condition of transfer is immoral or opposed to public policy and voi
Q+. A gifts his house to -, his soninla% %ith a $ondition that he $annot sell it to anybody. /s the transfer valid in la%" /f so, %hy" /f not, %hy" Spe$ify the reason for your ans%er. Ans +: +ec : of the T.P Act provides that where property is transferred sub0ect 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 $ondition or limitation is void Be6cept 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 to his son in law 7, sub0ect to a condition restraining 7 from alienating the said property absolutely. The transfer stands but the condition is void. This signifies that once the transfer takes effect 7 is not bound by the condition. Q7. A sells his flat to 0, his brother at a $on$essional pri$e on $ondition that he $annot lease out the property and indu$t a tenant therein. *plain the validity of the transfer, %ith reason. Ans 7: +ection 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 en0oyed 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 1 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 1 is entitled to receive the property as if there was no such
condition.. Q2. A, %ho is to marry 0, transfers his property in favour of 0, his intended %ife for life and after her death, to S1, the eldest son of the intended marriage for life and then to S, the se$ond son. !as the transfer valid" Spe$ify the reason for your ans%er. Ans 2: +ection C 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 e6istence at the date of the transfer, sub0ect to a prior interest created by the same transfer, the interest created for the benefit of
The condition of transfer is immoral or opposed to public policy and voi
such person shall not take effect, unless it e*tends to the %hole of the remaining interest of the transferor in the property.
In the instant case the transfer in favour of +, after the life time of 1, shall not take effect because of the fact that the said transfer in favour of + was limited for his life and does not e6tend to the whole of the remaining interest of A in the property. The transfer is valid up to the life time of 1 and the transfer made in favour of + fails and as the transfer in favour of + fails, the transfer in favour of S, being dependant on the transfer in favour of +, also fails. Q3. A transfer his house property to S1, his unborn son, absolutely. 4omment %ith reasons on the legality of the transfer. Ans 3: As per provisions of +ection C of the T.P.Act no interest in favour of an unborn person
for his benefit can be created e6cept 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 +ection of the T.P.Act, which indicates that atransfer of property signifies a transfer of property between two living persons. Q1. A transfers his house property to 0 for life, then to 4 for life and then to 46s son, unborn on the date %hen A made the transfer, absolutely. 4omment %ith reasons on the legality of the transfer.Ans 1: As per provisions of +ection C and D 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 +ection C is that such interest created in favour of an unborn person must e*tend to the %hole 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 1, a person living on the date of transfer and thereafter to %5s 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. BThe only thing is that the unborn son must come into e6istence before e6piration of the prior interest,. i.e. before the death of 1.) The condition of transfer is immoral or opposed to public policy and voi
Q11. n 15.7.132 A transferred his house property to 0 for life and then to 4, %ho %as not born on the date of transfer, absolutely. 0 died on .1.132. 4, ho%ever, %as born on 5.1.132. 8o %hat e*tent the transfer of on 15.7.132 by A ta9es effe$t". Spe$ify the reasons for your ans%er. Ans 11: As per provisions of sections C and D of the T.P. Act a transfer in favor of an unborn
person for his benefit can be made, provided the transfer initially must be in favor of a living person and that the transfer in favor of the unborn person must be absolute and that he must come into e6istence before e6piration of the prior interest and further that the interest created in favor of an unborn person shall not e6tend beyond his minority. In the instant case the transfer in favor of %, the unborn person was absolute, but he was born only after the death of 1. In that view the transfer in favor of % fails and % cannot claim any benefit therefrom. >owever there are certain 0udicial decisions wherein it has been held that a person in mother5s womb is deemed to be in e6istence. In that view the transfer in favor of % takes effect. Q1. A transfers his house property to 0 for life and after his death to 4. o 0 and 4 a$;uire any 9ind of interest in the property on the date of the transfer" Ans 1: +ection & of the T.P. Act provides that where, on a transfer of property, interest
therein is created in favor of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith, on the happening of an event which must happen, such interest is vested unless a contrary intention appears from the terms of the transfer. It also provides that a vested interest is not defeated by the death of the transferee before he obtains possession. , n the instant case when A makes the transfer, both 1 and % acquire a vested interest in the concerned property. While 1 acquires a vested interest with immediate possession, % also acquires a vested interest in the property, but to possess only after the death of 1. BIf % dies before taking possession of the property, or before the death of 1, because of the fact that %
The condition of transfer is immoral or opposed to public policy and voi
has already acquired a vested interest in the concerned property, his heirs will step into the picture in the event of %5s dying before taking possession or 15s death). Q1#. n 15.3.1332 A transferred , a plot of land to 0 %ith a dire$tion that %ill be handed over to 0 on his attaining ma
therein is created in favor of a person to take effect only on the happening of a specified uncertain even, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. +uch interest becomes a vested interest in the former case, on the happening of the eventM in the latter, when the happening of the event becomes impossible. In the instant case the interest created in favor of % is contingent on happening of an event, namely 15s dying as minor, which is an uncertain event. That contingency could have happened or could not have happened. Accordingly, % acquires a contingent interest in the concerned property on the date of transfer. Q1&. n 1.7.133 - gave to N Rs.1,5,=, to be paid to N at the death of >. oes N a$;uire any interest in on 1.7.133" Ans 1&: +ection & of the T.P. Act specifies what is a vested interest. B-6plain what is vested
interest.) In the instant case, on .'.&&: an amount of money was transferred in favor of 3, which was to be paid at the death of P. ;eath of P was an event of a certain nature. Accordingly, on such transfer 3 acquires a vested interest in the property, only the en0oyment is postponed till the death of P. Q15. n .3.133+ A e*e$uted a deed of gift %ith a dire$tion that the in$ome arising from the property %ill be given to A for life and after his death the $orpus %ill be divided and given to 0 4 and . o 0 4 and a$;uire any interest in on .3.133+" Ans 15: +ection & of the T.P. Act specifies what is a vested interest. B-6plain what is vested
interest.)
The condition of transfer is immoral or opposed to public policy and voi
In the instant case on the date of transfer on "".&.&&9 1, %, ; acquire vested interest in the property , which will be given to them only after the death of A. Q1+. A gave property to !, his %ife for life and on !6s death one share to 0, %ho is A6s brother and the other to S1 and S, t%o son6s of A. 0 and S1 died during the life time of the %ido%. !hat happens to the share transferred to 0 and S1" Ans 1+: +ection & of the T.P. Act specifies what is a vested interest. B-6plain what is vested
interest.) In the instant case the transfer in favor of 1, + and +" were to take effect on the death of W. It signifies that 1, + and +" acquired a vested interest in the property on the date of transfer. +ince 1 and + died during the lifetime of W, the interest transferred in favor of 1 and + will be inherited by their legal heirs respectively Bas because 1 and + acquired a vested interest in the property on such transfer). Q17. n 15.1.1322 A transfers his property to S, his son for life and then to ?S1, his grandson, absolutely. ?S1 %as not born on 15.1.1322. !hen shall ?S1 a$;uire any interest in the property and if so, %hat 9ind of interest" Ans 17: +ection & of the T.P. Act specifies what is a vested interest. B-6plain what is vested
interest.) If a transfer is made in favor of an unborn person for his benefit and thereby if the said unborn person acquires a vested interest in the concerned property, the said unborn person acquires an interest in the said property only %hen he is born or comes into e6istence.
Q12. A transfer his property to 0 for life, then to her '06s( adopted son@ if she dies %ithout adopting anybody, then to 4. id 4 a$;uire any interest in on the date of the transfer"
Ans 12: +ection " of the T.P. Act specifies what is a contingent interest. B-6plain what is
contingent interest.) The condition of transfer is immoral or opposed to public policy and voi
In the instant case % Hs acquisition of interest in on the date of transfer was dependent on one event, that is, 15s dying without adopting a son. Accordingly, % acquired only a contingent interest in BIf the contingency happened, that is, if 1 died without leaving an adopted son, only then % would have got the property).
Q13. , an estate is transferred to A for life and after A6s death to 0, if 0 shall then be living@ but if he dies before A then to 4. o 0 and 4 a$;uire any 9ind of interest in the estate" State the reason for your ans%er.
Ans 13: +ection " of the T.P. Act specifies
what is contingent interest. . B-6plain
what is contingent interest.) In the instant case the transfer to 1 is dependent on the fact of 15s surviving A. The transfer in favour of % is dependent on 15s dying before A. nly in that event % can acquire an interest in the concerned estate. Accordingly, both 1 and % acquire a contingent interest in the property on the date of transfer. Bit becomes vested in case of 1 if he survives A and in case of %, if 1 dies before A) Q. A transfers his elhi farm house to 0, if 0 shall $onvey his odhpur farm house to 4. oes 0 a$;uire any 9ind of interest in the elhi farm house" Ans : B-6plain what is contingent interest). The condition of transfer is immoral or opposed to public policy and voi
In the instant case 1 is acquisition of interest in ;elhi ouse to % and accordingly 1 will acquire interest in ;elhi farm house only after 1 transfers his 8odhpur ouse to %. n the date of transfer, until 1 transferred his 8odhpur farm to %, 1 acquired only a contingent interest in the ;elhi farm house.
Q1. - transfers Rs.,,= to N, %hen N attains ma
Q. A transfers property to 0, if 4 does not marry %ithin # years from the date of transfer. oes 0 a$;uire any interest in the property" Spe$ify the reason for your ans%er.
Ans : B-6plain what is contingent interest).
In the instant case the interest of 1 in the concerned property is contingent upon fulfillment
of the condition i.e %5s not marrying ; with in three years from the date of transfer. Q#. A gives Rs.#,5, = to 0 on $ondition that he shall marry 4, A6s daughter. n the date of the transfer 4 %as dead. 4omment on the legality or other%ise of the transfer.
Ans #: +ec " of the T.P. Act provides that an interest created on a transfer of property and
dependent upon a condition, fails if the fulfillment of the condition is impossible or is The condition of transfer is immoral or opposed to public policy and voi
forbidden by law, or is of such nature that, if permitted, it would defeat the provision of any law or is fraudulent or involves or implies in0ury to the person or property of another, or the %ourts regards it as immoral or opposed to public policy.
In the instant case the fulfillment of the condition, on which the transfer was dependent, was impossible and hence the transfer was void.
Q&. A transfers Rs.5,.= to 0 on $ondition that he shall murder 4. 4omment on the legality of the transfer.
Ans &: B-6plain the provisions of +ec "# %onditional Transfer).
he condition of the transfer is illegal and forbidden by law and hence the tra nsfer is void.
Q5. A transfer Rs.#,5.= to 0, his nie$e, if 0 desserts her husband. 4omment on the legality of the transfer. The condition of transfer is immoral or opposed to public policy and voi
Ans 5: B-6plain the provisions of +ec "# %onditional Transfer).
The condition of transfer is immoral or opposed to public policy and voi
Q+. A transfers his property to 0 for life and then to 4, if 4 gets married. 0 died in 1332 and 4 gets married in 5 and $laims the property. 4omment on the legality or other%ise of his $laim.
Ans.+: +ec."C of the T.PAct provides that where, on a transfer of property, an interest therein
is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of the event, the interest fails, unless su$h events happens before, or at the same time, as the immediate or precedent interest ceases to e6ist.
In the instant case the transfer to % will not take effect unless he is married either in the lifetime of 1 or at the same time as 1 dies.
Q7. A transfer Rs.1, ,= to 0 on $ondition that 0 shall marry %ith the $onsent of 4 and . dies. 0 marries %ith the $onsent of 4 and . id 0 fulfill the $ondition" State the reason for your ans%er.
Ans.7: +ection "9 of the T.P. Act provides that where the terms of a transfer of the property
impose a condition to be fulfilled before a person can take interest in the property, $ondition shall be deemed to have been fulfilled if it has been substantially $om plied %ith.
In the instant case as - dies and 1 marries with the consent of the other two persons namely % and ;, it shall be deemed to be a substantial compliance of the condition and 1 shall be deemed to have fulfilled the condition.
Q2. A transfer Rs.1, ,= to 0 on $ondition that 0 shall marry %ith the $onsent of 4 and . 0 marries %ithout the $onsent, but obtains the $onsent after the marriage. id 0 fulfill the $ondition" State the reason for your ans%er.
Ans 2: /aw requires substantial $omplian$e of a $ondition pre$edent for a transfer. 1ut in
the instant case 1 married without consent of %, ;, and -, but obtains their consent after marriage. +o 1
did not comply with the condition of taking consent of C, D, and E before his
subsequent ratification by them %ill not mean substantial $omplian$e of the condition by 1. In that view 1 has not fulfilled the condition.
Q3. A transfers Rs.1,,= to 0 on $ondition that 0 shall e*e$ute a $ertain lease %ithin three months after A6s death and if 0 should negle$t to do so, to 4. 0 dies in A6s lifetime. oes the disposition in favour of 4 ta9e effe$t"
Ans 3: +ection "' of the T.P. Act provides that where, on a transfer of property an interest
therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
In the instant case the ulterior disposition in favour of % was dependant on or conditional on 15s e6ecuting a lease within three months after A5s death, and in case 1 should neglect to do so, the transfer in favour of % shall take effect. 1 died during the lifetime of A. As the period of disposition failed, the ulterior disposition in favour of % takes effect.
created with the condition superadded that it shall cease to exist in case a specified uncertain event
did not comply with the condition of taking consent of C, D, and E before his
Q#. A transfers a farm to 0 %ith the $ondition that he shall go to ngland %ithin three years from the date of transfer, failing %hi$h, the money shall go to 4. 0 did not go to ngland %ithin three years form the date of transfer. oes the transfer in favour of 4 ta9e effe$t" Spe$ify the reason for your ans%er.
Ans #: +ection C of the T.P. Act provides that on a transfer of property an interest therein
may be
created with the condition superadded that it shall cease to exist in case a specified uncertain event
n the instant case on transfer of the farm to !, a condition was
go to -ngland within three years from the date of the transfer and on failure of which condition the interest of 1 in the transfer shall cease to have effect. As 1 did not go to -ngland within the specified time, the interest in his favour ceases to take effect.
Q#1. A transfers Rs.5, ,= to 0 to be paid to him on his attaining ma
Ans #1: +ection "& of the T.P. Act provides that an ulterior disposition of the kind
contemplated in +ection "! cannot take effect unless the condition is strictly fulfilled. It is a basic tenet of law that it favours vesting of property and disfavors divesting of such property, which has once vested on the transferee. In other words, while law requires only a substantial compliance of a condition precedent, but it is an essential requirement of law that for divesting an interest there shall be a st ri$t $ompli an$e of the $ondition subse;uent.
In the instant case since 1 did not fulfill the condition strictly and meticulously the transfer in favour of ; takes effect.
Q#. A transfers , a farm to 0 for her life, and if she does not desert her husband, then to
n the instant case on transfer of the farm to !, a condition was 4. 4omment %ith reason on the legality or other%ise of the transfer.
Ans #: +ection C: of the T.P. Act provides that if the ulterior disposition is not valid, the prior disposition is not affe$ted by it.
In the instant case the ulterior disposition being illegal and invalid, 1 is entitled to the farm during her life as if no condition had been inserted.
Q##. A transfers , a farm to 0 for her life, %ith a proviso that in $ase he $uts do%n a $ertain %ood, the transfer shall $ease to have any effe$t. 0 $uts do%n the %ood. !hat happens to the said transfer"
Ans ##: +ection C of the T.P. Act provides that a condition that transfer shall cease to have
effect in case specified uncertain events happens or does not happen.
In the instant case as 1 cuts down the wood, his interest in the farm ceases.
Q#&. A transfers , a farm to 0, %ith a $ondition superadded that if 0 shall not go the ngland %ithin three years from the date of transfer, his interest in the farm shall $ease. 0 does not go the ngland %ithin the spe$ified time. !hat, if, happens to the said transfer"
Ans #&: >ere also on 15s failure to fulfill the condition super added to the transfer,
namely, 15s
inability to go to -ngland within three years from the date of transfer, his interest in the farm ceases.
Q#5. A gifted , a house property to 0, his daughter, %ith a $ondition super added that if she died $hildless, the property should revest in the grantor. 0 dies $hildless. !hat happens to the said property" Spe$ify the reason for your ans%er.
Ans #5: In the instant case the transfer of the house property in favour of 1 contained a
condition that the property shall re#vest in the guarantor in the event of 15s dying childless. 1 having died childless the property transferred in favour of 1 shall re#vest in the grantor.
Q#+. A made a gift of her house to 0 %ith a $ondition that 0 should pay up the debt of A and shall also maintain A as long as she lived. 0 failed to $omply the t%o $onditions. !hat happens to the said property" Spe$ify the reason for your ans%er.
Ans #+: In this case also 1 having failed to fulfill the two conditions, namely, paying up the
debt of A and also maintaining A as long as she lived, the donor can be held to be entitled to cancel the gift, and get the property back.
Q#7. 8he odhpur farm is the property of 4 and %orth Rs. 2,,=. A by a instrument of gift professes to transfer the farm to 0, giving by the same instrument rupees one $rore to 4. /f 4 ele$ts to retain the farm, %hat happens to the gift of rupees one $rore"
Ans #7: +ection C of the T.P. Act provides that when a person professes to transfer a property,
which he has no right to transfer, and as part of the same transa$tion $onfers any benefit on the o%ner of the property, such o%ner must ele$t either to $onfirm such transfer or to dis s e n t from it M and in the latter case he shall relinquish the benefits so conferred, which shall
revert to the transferor as if it had not been disposed off.
It also provides where the transfer is gratuitous and the transferor has, before the election, died and in all cases where the transfer is for consideration, the disappointed transferee shall be paid the value of the property attempted to be transferred to him.
If % elects to retain the farm he forfeits the gift of rupees one crore.
Q#2. /n ;uestion no #7, %hat happens if A dies before ele$tion"
Ans #2: If A dies before the election by %, A5s representative must pay *s. !:,::,:::E# to 1
from out of said rupees one crore.
Q#3. /n ;uestion no #+, %hat happens if 4 does not spe$ify anything in this regard %ithin five years of the transfer"
Ans #3: +ection C of the T.P. Act provides that if % does not within one year after the date
of the transfer signify to the transferor BA) or his representatives his B1) intention to confirm or to dissent from the transfer, the transferor or his representatives may, upon e6piration of that period, require him to make his electionM and, if he does not compl y with such requisition within a reasonable time, he shall be deemed to have ele$ted to confirm the transfer.
Q&. A transfers the odhpur farm, the property of 4, to 0 and as a part of the same transa$tion gives 4 a $oalmine. 4 did not spe$ify anything about ele$tion, but ta9es possession of the mine and e*hausts it. !hat happens to the transfer" Spe$ify the reason for your ans%er.
Ans &: +ection C of the T.P. Act provides that when an election is necessary, the person
whose duty is to elect shall specify his decision in this regard either e6pressly or by implication.
In the instant case as % takes possession of the mine and e6hausts it, by implication he has thereby conformed the transfer of the estate to 1.
Q&1. A obtained a property from 0 by %ay of e*$hange. At the time of e*$hange 0 had only a half share, although he professed to transfer the %hole. 0 subse;uently pur$hased the remaining half. !hat happens to the e*$hange deal" Spe$ify the reason for your ans%er.
Ans &1: +ection DC of the T.P. Act provides that where a person fraudulently or erroneously
represents that he is authori2ed to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
In the instant case at the time of e6change 1 had only a half share, although he professed to transfer the whole. There is nothing to indicate that by the time 1 purchased the remaining half share, A had repudiated and impeached the contract. Accordingly, as per provisions of the said section DC, as the contract of transfer subsisted A was entitled to it and may require 1 to deliver the other half share subsequently acquired by 1.
Q&. A, 0, and 4 o%ned a $ompany in e;ual shares. 4 had been ill for sometime past and not attending the offi$e of the $ompany. A and 0 leased the %hole property to , as if 4 had no interest at all. 4 died and gave his share to A and 0. !hat legal right $an invo9e in su$h a situation"
Ans &: In the instant case as per provisions of section DC of the T.P. Act, the contract of
transfer having not been called in question and repudiated, ; was entitled to the share of % and may require A and 1 to convey the said share of % to him B;).
Q&#. A mortgages a half share in the family property to 0, in %hi$h he has only a third share. Bater on, on the death of his father A be$ame o%ner of a half share. 8his fa$t had been 9no%n to 0 before the transa$tion. /s 0 entitled to enfor$e his mortgage against the half share" Spe$ify the reason for your ans%er.
Ans &#: The right conferred to a transferee under section DC of the T.P. Act is not available to a
transferee who had knowledge that at the time of transfer his transferor had not possessed the right, title, interest and share in the property he was professing to transfer.
In the instant case 1 having known that at the time of transfer A had only one third share, he B1) is not entitled to enforce a mortgage in respect of half share of the concerned property, but to the e6tent of one third share, only.
Q.&& n the death of C, his house and other properties %ere inherited by his t%o sons A and 0. !hile A had all through been out of /ndia, 0 %as in effe$tive $ontrol of the house and representing the same to be his property, transferred the same to 4 in 133+ for $onsideration. 4 having dis$overed that at the time of sale 0 had only a half share repudiated the deal by instituting a suit against 0 for appropriate relief in 1332, by $alling in ;uestion the %hole transa$tion. /n 1333, A gifted his half share to 0. 4an 4 no% re;uire 0 to transfer the other half share 'gifted by A to 0( in favour of 4"
Ans &&: The right conferred by section DC of the T.P. Act to a transferee is available only if the $ontra$t of transfer subsists.
In the instant case % having discovered that at the time of sale 1 had only half share in the property, % repudiated the deal and instituted a suit against 1 impeaching the transaction, and seeking appropriate relief in &&!. 1 acquired the other half share from A by gift in &&&, only after the transaction has been called in question and impeached In that view it cannot be said that when 1 acquired the other half share from A, the contract of transfer in question was subsisting. Accordingly, in such circumstances % cannot require 1 to transfer the other half share Bgifted by A to 1) in favor of %.
Q&5. A representing that he had the authority aut hority to transfer an immovable property , %hi$h he, in fa$t, did not have, and transferred the same by %ay of mortgage to one 0. Subse;uently a a$;uired a transferable interest in , %hi$h he subse;uently thereto transferred to another person 4, %ho had absolutely no noti$e of the previous transa$tion. oes 4 get any legal prote$tion in respe$t respe$t of his transa$tion"
Ans &5: The right conferred by section DC of the T.P. Act on a transferee shall not impair the
right of the transferees in good faith fa ith for consideration without notice of the previous pre vious transaction.
In the instant case % having no notice of the previous transaction, the transferee B%) in good faith for consideration without notice gets the protection of law and the transfer in favor of % shall remain unaffected and valid.
Q&+. A o%ns three properties namely ,D,E. )e mortgages them to 0. Bater on A mortgages property to 4 free from en$umbran$e. !hat legal right 4 may invo9e in this situation"
Ans &+: As per provisions of section ! of the T.P. Act, if the owner of two or more
properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage debt satisfied out of the property or properties not mortgaged to him, so far as it covers the mortgage debt.
In the instant case if properties , =, J are mortgaged to 1 and again a gain property is mortgaged to %, % may require and ask 1, under this rule of marshalling of securities, to reali2e his mortgage due as far as possible from out of the property = and J and leave free for reali2ation of his dues.
Q&7. A desires to transfer by %ay of gift his Ban$er $ar to his elder son 0, and his 4hevrolet $ar to his younger son 4. )o% $an A la%fully ma9e the transfer"
Ans &7: +ection "C of the T.P Act provides that for the purpose of making a gift of
immoveable 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.
The section further provides that for the purpose of making a gift of movable property, the transfer may ma y be effected either by a registered instrument signed as aforesaid or by delivery.
The section also provides that such delivery may be made in the same way as goods sold may be delivered.
In the instant case both the cars being movable properties, the said cars may be gifted by the father to his sons either by a registered instrument or by delivery.
Q&2. /n order to bear the medi$al treatment of his son, A has to sell his land at Fanpur by %hi$h he $an fet$h a sum around Rs.75,= . )o% $an he la%fully ma9e the transfer of his Fanpur land in favour of 0, %ho is %illing to pur$hase the same"
Ans &2: +ection D of the T.P T.P. Act provides that sale of any tangible immovable property of
value of one hundred rupees and upwards can be made only by a registered instrument .
Accordingly, in the instant case A can sell his land at @anpur fetching a sum around *s. ',::: by e*e$ution and registration of a sale deed in favor of 1 Bsuch a document, unlike a deed of mortgage or a deed of gift or a will, does not require attestation att estation by witnesses).
Q&3. A intends to sell his >atna house to 0 at a $onsideration of Rs.2 Ba9hs and on 15.1. both A and 0 entered into an agreement to transfer the property by A to 0 in the
follo%ing terms. n 15.1. 0 paid to A a sum of Rs.2 la9hs by %ay of earnest money and as per terms of the agreement promised to pay Rs.5 la9hs first by the end of November and so on and the last installment of Rs.5 la9hs by the end of Cebruary, #. n su$h payment by 0, A shall e*e$ute and register an appropriate sale deed in favour of 0 by 15
th
of -ar$h #. oes the agreement for sale dated 15.1. re;uire registration"
Spe$ify the reason for your ans%er
Ans &3: An agreement for sale is substantially different from a deed of sale. A deed of sale
involves transfer of right, title, interest in the property from the transferor Bseller) to the transferee Bbuyer). +ection D of the T.P. Act provides that sale of a tangible immoveable property of rupees hundred or upwards can be effected only by a registered instrument.
The Indian *egistration Act &:!, provides for the law relating to registration of documents. +ection ' of the *egistration Act provides that any non testamentary instrument which purports or operates to $reate, de$lare, assign, limit or e*tinguish any right, title, interest of the value of one hundred rupees and upwards, to or in any immovable property is $ompulsorily registrable. +ection D' of the *egistration Act provides that in the absence of
registration of a document, which is required by law to be registered, the title in the property does not pass from the transferor to the transferee.
In a deed of sale, by its e6ecution Bon receipt of consideration), the right, title, interest in the property has to shift from transferor to the transferee and hence is also required to be registered compulsorily under the provisions of section ' of the *egistration Act.
In an agreement to sale, unlike a sale deed, the parties to the document do not in fact transfer any right, title, interest in the property from each other. They only agree to transfer the property by appropriate do$ument 'Sale deed(. >ence in an agreement to sale, Bby
virtue of that document) no right, title, interest in any immovable property is either created, or e6tinguished or transferred. Accordingly, a document professing to be an agreement to sale is not re;uired to be registered .
Q5. /n Q&3 does 0 a$;uire any interest in the subatna house on 15.1." )o% early and in %hat manner $an 0 a$;uire any interest in the said house"
Ans 5: In the conte6t of the facts 1, the intending purchaser does not acquire any interest in
the sub0ect Patna house on the date of e6ecution of the deed of agreement to sale, i.e. on .
:. "::".
Proviso to section D of the T.P. Act provides that a $ontra$t for sale does not , of itself, $reate any interest in, or $harge on, su$h property.
Q51. /n Q&3 does the sale deed e*e$uted by A in favour of 0 by 15.#.# re;uire to be registered" Spe$ify the reason for your ans%er.
Ans 51: A sale deed involves creation of right, title, interest in favor of the transferee and
e6tinction of such right of the transferor and as such is re;uired to be $ompulsorily registered in accordance with the provisions of section 'B)Bb) of the Indian *egistration Act &:!.
ence the sale deed dated .:C."::C is required under law to be registered.
Q5. /n %hat manner is a transa$tion of mortgage effe$ted"
Ans 5: +ection & of the T.P. Act provides that 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.
In other cases a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or Be6cept in the case of simple mortgage) by delivery of the property.
Q5#. !hat is a right of redemption" *plain %ith illustration. !hen is su$h right available " !hen is su$h right e*tinguished"
Ans 5#: A right of redemption is an invaluable right belonging to the mortgagor to redeem or get ba$9 his property mortgaged . +ection 9: of the T.P. Act provides that at any time after
the principal
money has become due, the mortgagor has a right, on payment, of the mortgage money, to require the mortgagee Ba) to deliver to the mortgagor the mortgaged deed and all do$uments relating to the mortgaged property which are in possession of the mortgagee, Bb) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and Bc) at the cost of the mortgagor retransfer the mortgaged property to him and Bwhere the mortgage has been effected by a registered instrument) to have registered an a$9no%ledgement in %riting that any right in derogation of his interest transferred to the
mortgagee has been e6tinguished. This right is called the right to redeem, and a suit to enforce it, is called a suit for redemption.
When a mortgagor makes payment of the mortgage money inclusive of interest on e6piration of the stipulated period of loan, a mortgagor can legitimately e6ercise his right of redemption of the mortgaged property.
+uch right of redemption is not lost merely on default in making payment by the mortgagor. The mortgagor in e6ercise of this right can redeem his property until such right has not been e6tinguished by act of the parties or by a decree of a court.
Q5&. !hat is a right of fore$losure" !hen $an this right be e*er$ised"
Ans. 5#: +ection 9' of the TP Act provides that in the absence of a contract to the contrary, the
mortgagee has, at any time after the mortgage money has be$ome due and before a de$ree has been made for redemption of the mortgaged property, or the mortgaged money has been
paid, a right to obtain from the $ourt a decree that the mortgagor shall be absolutely debarred of his right to redeem the property.
A suit to obtain a de$ree that a mortgagor shall be absolutely barred of his right to redeem the mortgaged property is called a suit for foreclosure.
A mortgagee, other than a mortgagee by condition of sale, is not entitled to bring a suit for foreclosure.
A usufructuary mortgagee or a mortgagee by conditional sale is not entitled to institute of sale.
Bn default of payment of the mortgage money inclusive of interest, a simple mortgagee, an -nglish mortgagee, a mortgagee on deposit of title deeds, and an anomalous mortgagee generally, can sue for saleM while a mortgagee by conditional sale can sue for fore$losure. A mortgagee under an anomalous mortgage may also sue for foreclosure, if the
terms of the mortgage contain such provisions.)
Q55. A borro%s Rs.2, ,= for t%o years from 0 by mortgaging his house property and personally binds himself to pay the mortgage money, and in the event of his failure to pay, 0 shall have the right to sell . After t%o years, A failed to pay the mortgage money. 0 as a mortgagee $ontemplates to sue A for fore$losure. Advise 0
Ans 55. The transaction in question is a clear case of a simple mortgage. The interest
transferred in a simple mortgage is mortgagor5s personal covenant or obligation to the mortgagee the right to sell away the property in the event of mortgagor5s default in making payment of the mortgage money on e6piration of the stipulated period. Accordingly, the
mortgagee 1, can be advised to go for a suit for sale, and not for a suit for foreclosure, as contemplated by him.
Q5+. n 15.7.1 A sold his house property to 0 on $ondition that if A fails to pay to 0 Rs.5,5,= by 15.7.&, the sale shall be absolute@ but if A pays the amount to 0 as aforesaid, the sale shall be$ome void and that 0 shall re$onvey to A.
n 15.7.# A defaulted in ma9ing payment as aforesaid and 0 $ontemplates to sell to realiGe the due. Advise 0.
Ans. 5+ The transaction in question is a clear case of mortgage by conditional sale. n default of payment of the mortgage money on e6piration of the stipulated period by the
mortgagor, the sale, as per terms of the mortgage instrument, shall be$ome absolute. Accordingly, law does not require any further sale of the mortgaged property. In such a situation law provides that such a mortgagee may sue for getting a de$ree of fore$losure so that the mortgagor shall be absolutely debarred of his rights to redeem the property. This is how the mortgagee can perfect his title in the concerned property. +o 1 shall be advised to go for a suit for foreclosure and not for a suit for sale.
Q57. /n a usufru$tuary mortgage on default of payment of mortgage money, $an the mortgagee sue for sale or fore$losure of the mortgaged property"
Ans. 57. In a usufructuary mortgage, the mortgagor delivers possession, or binds himself to
deliver possession of the mortgaged property to the mortgagee, and authori2es him to retain such possession until payment of the mortgaged money, and to recei ve the rents and profits accruing from the property. In case of such a mortgage the basic idea is to ad0ust the mortgaged money from out of the profits and usufructs of the property and the mortgaged property may be retained until the usufructs and profits of the property e6hausts the amount due. Accordingly, in such a case the mortgagee does not possess a legal right either to go for foreclosure or for sale.
Q52. /n a usufru$tuary mortgage, the mortgagor failed to give possession of the mortgaged property to the mortgagee. 4an the mortgagee institute a suit against the mortgagor"
Ans. 52 In case of usufructuary mortgage the essential requirement for the mortgagor is to
deliver possession of the mortgaged property to the mortgagee, so much so, that the usufructs and the profits arising out of the mortgaged property shall ad0ust against the amount payable by the mortgagor to the mortgagee. The possession and the time period for which the possession is to be en0oyed by the mortgagee are very important in a usufructuary mortgage. A delayed delivery of possession by the mortgagor to the mortgagee, in a usufructuary mortgage, may not be adequate to ad0ust the whole claim of mortgaged money. Accordingly,
if the mortgagor fails to deliver the mortgage property in terms of the mortgaged instrument the mortgagee necessarily suffers and he has a right to bring a suit against the mortgagee, for possession of the mortgaged property. BThis is neither a suit for foreclosure, nor a suit for sale, which such a mortgagee cannot avail of.)
Q53. )o% is a mortgage by deposit of title deed effe$ted" oes su$h mortgage re;uire registration"
Ans. 53. +ection ! Bf) of the T.P. Act provides that where a person in any of the towns of
%alcutta, 7adras, 1ombay or such other towns as notified in this behalf, delivers to a creditor or his agent, do$uments of title to immovable property, %ith intent to $reate a se$urity thereon the transaction is called a mortgage by deposit of title deeds. As per provision of law, such a mortgage can be effected in the specified area only by deposit of the documents of title of the concerned property with the creditors. +ince the transaction takes place by mere deposit of title deeds, no do$umentation is re;uired and accordingly, the requirement of registration is also held to be redundant.
Q.+ A too9 a loan from 0, by mortgaging his house property by an instrument to that effe$t e*e$uted by 0 and attested by 4. 4omment on the legality of the transa$tion.
Ans. +. +ection & of the T.P. Act provides that a mortgage can be effected only by a
registered instrument signed by the mortgagor and attested by at #east to itness. In the instant case attestation was done by only one witness, namely %.
Q. +1 *plain Hon$e a mortgage, al%ays a mortgageI. lu$idate A $log on the e;uity of redemption.
Ans. +1. A mortgage is basically a transfer of interest in specific immovable property for the
purpose of securing a loan. In a transaction of outright sale, or gift of any property, the transferor, after a lawfully valid transaction to that effect, divests himself or is striped of any right title interest in the concerned property and the right title interest is created in favour of the transferee. 1ut in a mortgage, the property is held as a security for repayment of loan. +o this is basically not a outright transfer of right title interest in the concerned property, and the borrower or the mortgagor retains his right title interest and ownership in the property, but sub0ect to certain rights and interests transferred in favour of the lender or the mortgagee. In such a transaction, the mortgagor possesses a valuable right of getting ba$9 the property on redemption, that is, on paying back the amount due to the mortgagee on e6piration of the
stipulated period.
As a borrower is usually supposed to be in need to borrow money, the lender cannot be allowed to take advantage of his financial superiority and to force the borrower to agree to such a term, which makes redemption of the property very difficult. /aw as well as equity support the mortgagor by ignoring such a condition and assist the mortgagor in redeeming his property. /aw does not permit any contrivance, which shall stand as an impediment in mortgagor5s way of redemption of the mortgaged property. +uch condition is held to be a clog to be on equity of redemption and is treated as illegal and void in law.
+tretching this concept to support redemption of mortgaged property from the hands of the mortgagee, law has always supported the concept that once a transaction is held to be a mortgage, no contrivance in its terms and conditions shall be allowed to render the transaction to be anything other than a mortgage. >ence, the concept emerged as Jon$e a mortgage, al%ays a mortgage6. n failure of the mortgagor to pay back the mortgage money to the
mortgagee after e6piration of the stipulated period, the mortgagor, ispo fa"to, does not loose his right of redemption forthwith. +uch right is not e6tinguished until the court passes a decree for foreclosure, or the mortgaged property is actually being sold away following a decree for sale.
Q.+ /f a mortgaged property in possession of the mortgagee re$eives a $$ession, %ho is entitled to
su$h a $$essio n on redemption of the mortgage"
Ans. +. +ection 9C of the T.P. Act provides that where a mortgaged property in possession of
the mortgagee, during continuance of the mortgage, received any accession, the mortgagor upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
Q.+# /f a mortgaged property in possession of the mortgagee, is improved , %ho shall be entitled to the improvement on redemption"
Ans. +#. +ection 9C#A B) of the T.P. Act provides that where the mortgaged property in
possession of the mortgagee, has during the continuance of the mortgage, being improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement, and the mortgagor shall not be liable to pay the cost thereof.
Q. +&. /n Q. +#, if the improvement %as effe$ted at the $ost of the mortgagee and %as ne$essary to preserve the property, %ho shall be entitled to su$h improvement in the mortgaged property on redemption.
Ans. +&. +ubsection " of section 9C#A B) of the T.P. Act provides that where any such
improvement was effected which was necessary to preserve the property from destruction, or deterioration or was made in compliance of the lawful order of any public servant, the %ort"a"or shall, in the absence of any contract of contrary, be liable to pay proper
cost thereof in addition to the mortgaged money.
Q. +5 A borro%s money from 0 for three years by mortgaging his t%o house properties and D to 0 on 7... 8hereafter, A again borro%s money from 4 for three years on 1&.#. by mortgaging to 4. n default in #, 0 $ontemplates to sell and D for realiGation of his mortgaged debt. )as 4 any legal right to prote$t his interest for realiGation of the debt o%ed by A to 4"
Ans. +5. +ection ! of the T.P. Act provides that if the owner of two or more properties
mortgaged them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage debt satisfied out of the property or properties, not mortgaged to him, so far as the same may cover the debt.
In the instant case, % may require 1 to marshal the securities in such a way so that his mortgaged debt be satisfied, first from out of property not mortgaged to him, i.e. from =, so that as its covers the debt. If, however, = is not sufficient to liquidate the mortgage debt, then only 1 can enforce his mortgage as against .
Q. ++. 8%o farms and D are valued at Rs ,, and Rs #,, respe$tively. and D are mortgaged to se$ure a loan of Rs. ,,. !hat should be the ratable $ontribution from and D in respe$t of the debt"
Ans. ++. +ection !" of the T.P, Act provides for contribution to mortgage debt.
If two properties and = valued *s. ":,::,::: and C:,::,::: respectively and mortgaged to secure a loan of *s. ":, ::,:::, the ratable share to be borne by the properties would be in the proportion of "C and the amount for which and = would be liable, would be !,::,::: and ",::,::: respectively.
Q.+7. A house property is $harged to se$ure payment of a loan ta9en by A from 0. A failed to repay the money %ith interest by the stipulated debt. !hat step 0 may ta9e to realiGe his due"
Ans. +7. When a property is made security for payment of money to another constituting a
charge as contemplated in +ection :: of the T.P. Act, on default of payment a charge can be enforced only by sale of the property through the court. Accordingly 1 may take step by instituting a suit to enforce his charge on the property so as to reali2e his dues.
Q.+2 A, the o%ner of a huge agri$ultural farm lets out the same to 0 on 1.&.1332 for a st period of 1 years at a rental of Rs 5, per nglish $alendar year beginning from 1 of April of any year to #1
st
-ar$h of the follo%ing year. )o% $an lessor A determine the lease after e*piration
of the
stipulated period"
Ans. +2. +ection of the T.P.Act provides that a lease of immovable property determines
Ba) by efflu6 of time limited thereby..M
In the instant case the lease being for a specified period of ten years, it automatically determines on e6piration of the stipulated period and in such a situation there is no need to issue a notice determining the lease.
Q.+3 /n Q.+2 say there %as a dispute bet%een A and 0. 4an A ever terminate the lease before
#1.#.2"
Ans. +3. +ection of the T.P. Act provides for determination of lease and section Bg)
provides that a lease can be determined by forfeiture, that is to say, B) in case the lessee breaks an e6press condition, which provides on breach thereof, the lessor may re enter, or B") in case the lessee renounces his character by setting up a title to third person or to himself or BC) if the lessee is ad0udicated an insolventM and any of this cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
In the instant case A can terminate the lease before C.C."::!, only if 15s action comes
within the ambit of any of the provisions of section .
Q.7. A lets out a field to 0 at an annual rental of Rs. &, per nglish $alendar year from 1
st
st anuary to #1 e$ember. A serves a si* months noti$e under S. 1+ of the 8> A$t to 0, on
15.3. terminating the lease. )o% early $an A institute a suit for evi$tion of 0 on the basis of the said noti$e"
Ans. 7. +ection :9 of the T.P. Act provides that a lease of immovable property for
agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of either lessor or lessee, by si6 months5 notice e6piring with the end of a year of tenancy.
In the instant case the notice was served to 1 on .&."::". As per provisions of said section
:9, such a lease is terminable by a si6 months notice ending with the month of tenancy. >ere, the said si6 months ending with the year of tenancy would commence from 8uly to ;ecember of any -nglish calendar year. This period, the lessee is likely to get only from 8uly "::C to ;ecember "::C. >ence at the earliest, A can institute a suit for eviction of 1 on
st
8anuary "::D, and not on any date before that.
Q.7 0 is the tenant of A in an area %here 8> A$t is appli$able. 8he tenan$y $ommen$es from 15
th
th of any nglish $alendar month to 1& of the follo%ing month. A serves 15
th days6 noti$e to 0 on 7 anuary 7. )o% early $ould A institute a suit for evi$tion of 0 from the aforesaid tenan$y on the basis of the said noti$e"
Ans. 71. +ection :9 of the T.P.Act provides that a lease of immovable property, other than for
agricultural and manufacturing purposes, for year to year, or for more than one year etc shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days noti$e e*piring %ith the end of a month of the tenan$y.
In the instant case the notice was served to 1 on '.:."::'. As per provisions of said +ection
:9, such a lease is terminable by fifteen days5 notice ending with the month of tenancy. >ere, the said fifteen days ending with the month of tenancy would commence only from C D D
th th
of the following month. This period the lesse is likely to get from C
st
st
to
8anuary "::' to
ence, at the earliest, A can institute a suit for eviction of 1 on
th
of
Q.7# /n Q. 7, if instead A had served the noti$e on 0 on 2
th
anuary 7, ho% early
$ould A
institute a suit for evi$tion of 0 from the aforesaid tenan$y on the basis of the said noti$e"
Ans 7#. In Q. '", if the notice was served on the "!
th
of 8anuary "::', the lessee or the
tenant gets the fifteen days5 period from Cst 8anuary to D
th
ence, at
th the earliest, A can institute a suit for eviction of 1 on of
Q.7& /n a tenan$y %here the 8> A$t is appli$able, %hat ground or grounds the lessor needs to prove to evi$t his lessee"
Ans. 7&. In a tenancy where the TP Act is the governing law on the sub0ect, the only re;uirement to evi$t a lessee or tenant is to serve him either a si* months6 or fifteen days6 noti$e e6piring with the end of year of tenancy or month of tenancy, as the case may be. This
apart, the lessor is not required under the law to prove any ground for achieving eviction of his tenant. B1ut, in provincial rent legislations, which are applicable in municipal areas, the sub0ect law requires the landlord#lessor to prove one or more of the grounds enumerated therein for eviction of the tenant. +uch laws specify that there shall not be any decree for eviction without one or more of the grounds having been satisfactorily proved before a court of law, and otherwise not. +uch suit for eviction also precedes by usual one month5s notice e6piring with the end of a month of tenancy.)
Q.75 0, a $olleague of A, approa$hed A to permit 0 to stay in A6s va$ant flat for t%o months to enable him to
Ans. 75. As A permitted 1, his colleague, to stay in A5s vacant flat for two months, 1
occupied the flat as a licensee. As 1 overstayed and did not vacate the concerned premises even after a passage of si6 months in spite of A5s repeated requests to vacate the flat, A can now evict 1 by instituting a suit for eviction of a licensee. BIn such a suit, there is no need for any such notice as is required to evict a tenant either under the TP Act or under the provincial rent legislationsM nor the licensor is required to prove any ground for eviction of the licensee.)
Q.7+ /n Q. 75, $ould A re;uire 0 to va$ate the flat even before t%o months"
Ans. 7+. A license is basically in the nature of a personal covenant between the parties, more
so in the nature of a personal prerogative of the grantor. >e is at liberty to revoke the license or the permission at any time according to his desire. In that view, A could terminate the license and require 1 to vacate the flat even before the e6piration of two months from his occupation.
B>owever, if the license granted is sub0ect to payment of fee and if, on account of eviction of a licensee following premature revocation of license, the licensee suffers any loss, he may be compensated by the licensor but that will not stand in the way of eviction of the licensee even before the said two months.)
Q.77 /n Q.75, %as it ne$essary for A to prove a ground on %hi$h 0 $ould be evi$ted"
Ans. 77. As a license is a personal grant, the grantor can revoke such permission at any time as
he desires and for eviction of a licensee, a licensor is not at all required to prove any ground.
Q.72 0, a lessee of A, in A6s apartment, %ithout A6s permission, ere$ted a partition %all to bifur$ate the dining spa$e from the dra%ing room, and made a se$ond entran$e of the leased property by $onverting a %indo% to a door. A being aggrieved, %hat step $an he ta9e against 0 in su$h a situation"
Ans. 72. +ection :! of the TP Act provides for the rights and liabilities of the lessor as well as
that of the lessee. It provides that, amongst other requirements, the lessee is bound to keep the tenanted premises in good condition and he must not, without the lessor5s consent, erect on the property any permanent structure.
15s erection of a partition wall to bifurcate the dining space from the drawing room and making a second entrance of the leased property by converting a window to a door, all without lessor A5s permission, is not in consonance with the provisions of law and hence, offer a ground for eviction of the lessee 1 on that ground only.
Q.73 /n uly &, a lease bet%een A and 0 %as forfeited. 0 paid rent to A for the months of August & and September &, %hi$h A duly a$$epted. !hat happens to the forfeiture"
Ans. 73. +ection " of the TP Act provides that a forfeiture under section , clause Bg), is %aived by a$$eptan$e of rent which has become due since the forfeiture, or by distress for
such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting. It is also provided that the lessor is aware that the forfeiture has been incurred. The section also provides that, where rent is accepted after the institution of a suit to e0ect the lessee on the ground of forfeiture, such acceptance is not a waiver.
In the instant case the lease was forfeited in 8uly "::D and 1 paid rent to A for the months of August and +eptember "::D, which A duly accepted. There is nothing to indicate that 1 did not know about the forfeiture. This payment of rent by the lessee and acceptance
thereof by the lessor, after the forfeiture of the lease constitutes waiver of forfeiture of the lease.
Q.2 A, the lessor, gives 0, the lessee, a noti$e to ;uit the property leased. 8he noti$e e*pires and 0
remains in possession. A gives to 0 a se$ond noti$e to ;uit. !hat happens to the first noti$e"
Ans. 2. +ection C of the TP Act provides that a notice given under +ection , clause Bh),
is waived, with the e6press or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
In the instant case as 1 continues in possession in spite of the notice to quit given to him, when A gave to 1 a second notice to quit. The effect of a second notice in the facts and circumstances of the case constitutes waiver of the previous notice.
Q.21 A lets a house to 0 for 5 years. 0 underlets the house to 4 at a monthly rent of Rs. 5=. 8he five years e*pire, but 4 $ontinues in possession of the house and pays rent to A. !hat is the legal $onse;uen$e of su$h payment"
Ans. 21. +ection 9 of the TP Act provides that if lessee or under#lessee of property remains
in possession thereof after the determination of the lease, the lessor or his legal representative accepts rent from the lessee or under#lessee, or other wise assents to his his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or month to month, as the case may be.
In the instant case as the original lease to 1 was for five years and 1 under#let the house to %, and on e6piration of five years % continued in possession and paid rent to A. In the circumstances %5s lease is renewed from month to month.
Q.2 A lets a farm to 0 for life of 4. 4 dies, but 0 $ontinues in possession %ith A6s assent. !hat happens to 06s lease in su$h a situation"
Ans. 2. B-6plain the provisions of +ection 9 of the TP Act).
In the instant case the original lease to 1 was for the life of % and even after %5s death 1 continues in possession with A5s assent. In the circumstances 15s lease shall be deemed to be renewed from year to year.
Q.2# A transfers a house property %orth Rs. ,, to 0 and 0 in return transfers to A his house D %orth Rs. ,, and gives $ash of Rs.,,. /s this a sale or an e*$hange" Spe$ify the reason for your ans%er.
Ans. 2#. +ection ! of the TP Act provides when two persons mutually transfer the
ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction can be termed as an e6change. It also provides that a transfer of property in completion of an e6change can be made only in manner provided for the transfer of such property by sale.
In the instant case in return for a property worth *s. "",::,::: to 1, 1 in return transfers to A his house = worth *s. ":,::,::: and gives cash of *s.",::,::: here the transaction in substance was an e6change even though a small amount of mo ney constituted part of it.
Q.2& A transfers his house %orth Rs. ,, to 0 and 0 in return pays to A Rs.,, in $ash and a small pie$e of land %orth Rs.,,. /s this a sale or an e*$hange" Spe$ify the reason for your ans%er.
Ans. 2&. B+pecify the provision of +ection ! of the TP Act)
In the instant case in return for a property worth *s."",::,:::, 1 paid a cash amount of *s.":,::,::: and a small piece of land worth *s.",::,:::. This cannot be stated to be an instance of an e6change in substance, as almost the entire amount is paid in cash.
Q.25 /n 133, A made a gift of his farmhouse to 0, one of his sons, %ho %as then in the KSA. A died in 1332. /n 5, 0 $ame ba$9 to a$$ept the gift, %hi$h %as ob
Ans. 25. +ection "" of the TP Act provides that a gift is the transfer of certain e6isting
movable or immovable property made voluntarily and without consideration, by one person, called donor, to another, called the donee and accepted by or on behalf of the donee. It also provides that such an acceptance must be made during the lifetime of the donor and while he is still capable of giving. It also provides that if the donee dies before acceptance the gift is void.
In the instant case the gift of the farm house was made by A to 1 in &&: and the donor A died in &&!. it appears that 1 came to accept the gift in "::, i.e. after the death of the donor. Accordingly, 1 cannot accept the gift in ":: and the gift turns out to be void in law in &&!. In that view his %5s ob0ection is not without substance.
Q.2+ A transferred , his farmhouse, by a registered instrument of gift e*e$uted by A and attested by 4, and . !as the transfer valid"
Ans. 2+. +ection "C of the TP 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.
In the instant case the gift of the farm house was made by e6ecution of deed of gift and attested by %, ;, and - and which document was registered by the donor. /aw5s requirement is attestation by at least two witnesses. >ere the attestation was done by three witnesses which is evidently in conformity with law. Accordingly the transfer was lawful and valid.
Q27. A gives a farm to 0, reserves to himself, %ith 06s assent, the right to ta9e ba$9 the farm in $ase 0 and his des$endants die before A. 0 dies %ithout des$endant in A6s lifetime. /s this a valid gift" 4an A ta9e ba$9 the farm".
Ans. 27. +ection "9 of the TP Act provides that the donor and the donee may agree that
on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revokedM but a gift which the parties agree shall be revocable only or in part, as the case may be.
In the instant case since both A and 1 agreed to A5s taking back the farm gifted to 1 on condition of 15s descendants dying before A and 1 having died without descendants, A may take back the farm.
Q22. A gives Rs.1,,= to 0, reserving to himself, %ith 06s assent, the right to ta9e ba$9 at pleasure, Rs.,= . /s the gift valid" /s 0 bound to return Rs.,= if demanded by A subse;uently".
Ans. 22. B-6plain the provisions of +ection "9 of the TP Act)
In the instant case the right of donor A to take back *s.":,::: at his pleasure, even though with 15s consent, is not in consonance with law on the sub0ect.
Q23. A transfers a property by gift to 0, and %ith 06s assent, reserves the right to revo9e the gift if 0 fails to get himself enrolled at the 0ar. 0 %hile in possession sells the property to 4, %ho had no noti$e of the right of revo$ation, /f 0 fails to enroll at the bar, $an the property be re$overed from 4"
Ans. 23. B-6plain the provisions of +ection "9 of the TP Act).
In the instant case A transferred the property by gift to 1, reserving the right to revoke the gift if 1 failed to get himself enrolled at the bar. The facts of the case indicate that 1, while in possession, sold the property to %, who without notice of the right of revocation accepted it. If 1 failed to enroll at the 1ar, A could not recover the property from %, as % was a bona fide transferee for value without notice of the right of revocation by A.
Q3. A by a single transa$tion gifts to 0 three properties ,D,E, out of %hi$h is burdened %ith obligation. 4an 0 a$$ept D L E only, leaving "
Ans. 3. +ection "' of the TP Act provides that where the gift is in form of a single transfer
to the same person of several things of which one is, and the others are not, burdened by an obligation, the donee can take nothing by the gift unless he acc epts it fully. It also provides that where the gift is in form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
In the instant case as the gift of three properties , = and J to 1 is made by a single transa$tion, 1 has to accept either the whole of the gift, including the onerous part of it or not
at all. Accordingly, 1 cannot accept = and J alone, leaving .
BIf the said three properties were gifted to 1 by three separate instruments or transactions, 1 was at liberty to choose which of the gifts he would accept)
Q31. A is o%ner of properties L D. A borro%s Rs.75,= from 0. 8hereafter A ma9es a gift of
L D to 4. 4an 4 a$$ept L D, ignoring to pay A6s debt of Rs.75,="
Ans. 31. +ection "! of the TP Act provides that where a gift consists of donor5s whole
property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the e6tent of the property comprised therein.
In the instant case, as the gift consists of donor5s whole property, the donee % shall be personally liable for all debts due and liabilities of the donor A. If % accepts the gift from A, % shall be liable to pay *s. ',:::E# from out of the properties and = he received from A by way of gift.
th Q3. n 7 Cebruary, 133+ A agrees to sale a house property to 0 at a $onsideration of Rs.#5,,=. Rs.5,,= paid by 0 to A on 7..133+ as earnest money. 8hey agree that 0 should pay Rs.#,,= in # installments of Rs.1,,= ea$h to be paid at the end of -ar$h, April and -ay 133+ respe$tively.
n 12
th
Cebruary, 133+ 4 offers a pri$e of Rs.&,,= for to A and thereafter A
is ma9ing all endeavor to do a%ay %ith the agreement %ith 0. !hat shall 0 do to get the property"
Ans. 3. In such a situation, 1 shall be advised to institute a suit against A for specific
performance of the contract in question. While instituting such a suit, it shall be plaintiff 15s case to show before the court that he has performed his part of the contract and he is willing to perform his remaining part of the contract and shall deposit the unpaid balance amount of consideration in court at the time of filing the suit. >e shall pray for a decree to direct A to perform his part of the contract, namely, after accepting the remaining balance amount of consideration deposited in court, A shall prepare, e6ecute and register an appropriate sale deed in respect of the concerned property in favour of 1 and shall deliver possession of the property to 1, if at all the possession was not yet delivered.
BAfter obtaining a decree for specific performance of contract, if defendant A fails to comply with the directions of the decree by e6ecution and registration of an appropriate sale deed in favour of 1, on application for e6ecution of the decree by the decree#holder 1, the court shall e6ecute and register an appropriate sale deed on behalf of the failing defendant, now 0udgment#debtor, A.)
Q3#. n 2
th
th September 1335 A leased a property to 0. n 17 November 1335 A leased
to 4. n
th th 5 e$ember 1335 A mortgaged to 4. 8he t%o deeds of 4 %ere registered on e$ember 1335
and 06s deed %as registered on
nd
e$ember 1335. 4an 0 maintain a suit for possession
of "
Ans. 3#. +ection D' of the Indian *egistration Act, &:! provides that a registered document shall operate from the time from %hi$h it %ould have $ommen$ed to operate if no
registration thereof had been required or made, and not from the time of its registration. This signifies that irrespective of the date of registration of a document, involving transfer of interest from the transferor to the transferee, the document shall operate not from the time of its registration, but from the date of its e6ecution.
In the instant case, all three documents were validly registered within the time limited therefor. +ince the registered documents operate retrospectively from the date of their e6ecution, 15s document of lease being earliest in point of time, notwithstanding its
registration took place after registration of %5s documents, 15s document shall prevail over the other documents, in that view, it shall be lawful for 1 to institute insti tute and maintain a suit for possession of on on the basis of his document, which which is earliest in point of time.
Q3&. A sales to 0 on 15.1.1332. 8hereafter A sales to 4 on 12.1.1332. A registers both sale deeds on .1.1332. !ho got the title in "
Ans. 3&. B-6plain the provisions of +ection D' of the Indian *egistration Act).
In the instant case, 15s document was e6ecuted on .:.&&! and %5s document was e6ecuted on !.:.&&! in respect of the same property. 1ut the facts indicate that A registered both the sale deeds on "".:.&&!. As As per provisions of +ection D' of the Indian Indi an *egistration Act, any registered document operates retrospectively from the date of its e6ecution and not from the date of its registration. Accordingly, as both the documents were registered on "".:.&&!, the effect of such registration was to give effect to the passing of title from the transferor to the transferee with effect from the respective dates of e6ecution. It appears that 15s document was former in point of time and, accordingly, shall prevail over %5s document.
Q35. A sold to 0 on 1
st
$tober 1332 again A sold to 4 on 15
th
$tober 1332. A
registered 46s
deed on
nd
$tober 1332 and 06s deed on 5
th
$tober 1332. !ho shall get the title in "
Ans. 35. B-6plain the provisions of +ection D' of the Indian *egistration Act.)
As any registered document operated retrospectively with effect from the date of its e6ecution and not from the date of its registration, both the documents in question in favour of 1 and % being validly validl y registered within the time tim e stipulated therefor, the documents shall be operative from the time of e6ecution and, in that view, the document e6ecuted former in point of time shall prevail over the document e6ecuted later on.
Q3+. A e*e$utes a sale deed in respe$t of his house property in favour of 0 and himself presents the deed before the SubRegistrar and admits e*e$ution of the same. 8he Sub Registrar refuses to register the do$ument. !hat !hat step 0 L A may ta9e to register register the deed"
*e gistration Act provides that e*$ept where the refusal of Ans. 3+. +ection '" of the Indian *egistration registration by the +ub#*egistrar is made on the ground of denial of e*e$ution, an appeal shall lie as against the order of a +ub#*egistrar refusing to admit a document to registration, to the Registrar . +o, in this case, 1 or A may prefer an appeal before the *egistrar, calling in
question the decision of the +ub#*egistrar.
Q37. /n Q.3+ if A had denied e*e$utions e*e$ utions before the subRegistrar, %hat step 0 should ta9e to register the do$ument"
Ans. 37. +ection 'C of the said Act provides that, when a +ub#*egistrar has refused to
register a document on the ground of denial of e6ecution, any person claiming under such document, may, within thirty days after the making of the order of refusal, apply to the *egistrar in order to establish his right to have the document registered. +o, in this case, as against the decision of the +ub#*egistrar, 1 should make an application before the *egistrar to have the document registered.
Q32. /n Q3+ if the Registrar refuses to register the do$ument, $an 0 go for a further appeal"
Ans. 32. +ection '' of the said Act provides that, where the *egistrar refuses to order the
document to be registered, under +ection '" or +ection '9, any person claiming under such document, may, institute in the %ivil %ourt, within the local limits of whose original
0urisdiction is situate the offi$e in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office, if it be duly presented for registration %ithin thirty days after the passing of su$h de$ree. +o, in this case, 1 cannot go for a further appeal, which is also prohibited under +ection '9B") of the said Act but has to file a suit before the appropriate civil court for a decree directing the document to be registered.
Q33. A, a poor illiterate %ido% %ith # minor $hildren, enters into an agreement %ith 0, a solvent mer$hant to sell , her only homestead at a $onsideration mu$h less than the mar9et pri$e of the property. She a$$epted Rs.1,= as part of the agreed $onsideration. As being advised by her relation A refused to e*e$ute L register a sale deed in respe$t of . 0 filed a suit for spe$ifi$ performed of $ontra$t. /s the 4ourt bound to pass a de$ree for spe$ifi$ performan$e of $ontra$t"
Ans. 33. In the instant case, it appears that there was a lawfully valid agreement for sale of the
homestead of the widow in favour of the rich merchant. >e also paid *s. :,:::E# to the widow lady as part of the agreed consideration. n ultimate refusal by the lady to sell the property, the merchant filed a suit against her seeking a decree for specific performance of contract. The plaintiff merchant can show and establish by adducing sufficient proof before the %ourt of law that there was a lawfully valid agreement and that, in pursuance of the agreement, he paid money to the lady, and that he was ready and willing to perform the remaining part of the contract. n this basis, court may pass a decree for specific performance of contract against the lady. 1ut the basis of +pecific *elief Act is based on the principle of equity, 0ustice and good conscience, and accordingly, notwithstanding that the case of the plaintiff otherwise stands on its own feet on merit, yet, considering all aspects of the case, and also considering that such a decree may cause immense hardship for the defendant lady, the court may refuse to grant such a relief. -ven if the case for a decree for specific relief is proved, grant of such relief is ultimately the discretion of the court, which discretion shall be e6ercised ob0ectively, 0udicially, impartially, depending upon fa6 and circumstances of each particular case. +o a court is not bound to grant a decree for specific performance of contract merely because it is lawful to do so. In such a case, if part#payment has been made, the court may direct return of the money with interest to the party paying the amount.
Q1. n 15.7.7, Doung /ndia Asso$iation, a $lub registered under the So$ieties6 Registration A$t, entered into an agreement %ith A, a noted singer to perform for their $lub th from +pm to 3pm on 15 August 7. Cor this sho%, ti$9ets %ere already sold to the publi$. n 1.2.7 A informed that she might not be able to perform for the $lub on that date. 4an the agreement be spe$ifi$ally enfor$ed" Spe$ify the reason for your ans%er.
Ans. 1. The instant case is one involves is a typical agreement, which, otherwise, on breach
by either party, calls for an action for a decree for specific performance of contract. 1ut if the contract or agreement is dependant on any personal skill of the other party, such an agreement cannot be enforced merely because the decree, will be unenforceable. A court will not make any endeavour to pass a decree which cannot be e6ecuted. 3otwithstanding a decree, the defendant may refuse to comply with the same. In the instant case, since the performance depends on the personal skill, quality and voliti on of the singer, the court shall not pass a decree compelling her a performance Bwhich she may refuse to do).
Q11. A intended to transfer to 0 a half share in a field belonging to A. 0ut o%ing to a mista9e of the s$ribe, instead of the half, the %hole property %as transferred. 8he mista9e %as dete$ted only after the original sale deed %as re$eived by the parties after registration. Advise A ho% the mista9e $an be re$tified"
Ans. 11. +ection "9 of The +pecific *elief Act, &9C provides that when, through a fraud or
mutual mistake of the parties, a contract or other instrument in writing does not e*press their real intention, then either party or his representative in interest may institute a suit to have the instrument re$tified.
In the instant case, as A intended to transfer to 1 only a half share in the field, but owing to mistake of the scribe, instead of the half share, the whole property was transferred. +o, in effect the instrument in question did not e6press the real intention of the parties. Accordingly, as per provisions of +ection "9 of the +pecific *elief Act, &9C, A should be advised to institute a suit to have the instrument rectified. BThe mistake in the document, after its registration, cannot be rectified in any other way even by the parties agreeing to the same).
Q1. A, a tenant at 06s property, %as for$ibly dispossessed at the behest of 0. Suggest %hat legal remedy $an A avail in this situation"
Ans.1. +ection 9 of the +pecific *elief Act, &9C, provides that if any person is dispossessed
without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, re$over possession thereof, notwithstanding any other title that may be set up in such suit. It also provides that such a suit is to be brought within si6 months from the date of dispossession.
In the instant case, 1 being a lessee, was forcibly dispossessed at the behest of the lessor A. Accordingly, in such a situation, 1 may be advised to institute a suit for possession of the property, of which he was the lessee and from which he has been dispossessed otherwise
than in due course of law. 1ut his only relief in such a suit shall be restricted to possession of the property only.
Q1#. /n Q1, %hat differen$e %ould have been there, if A6s status %as that of a trespasser"
Ans.1#. B-6plain the provisions of +ection 9 of the +pecific *elief Act, &9C.)
What said +ection 9 emphasi2es is that no one, irrespective of his status, should be dispossessed from any immovable property e6cept in due course of law. -ven a trespasser cannot be forcibly dispossessed, in which case, with the aid of this section, he may institute and maintain a suit for possession of the property from which he has been forcibly dispossessed, even though he did not
