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LL.B. Semester - II
112 - Property Law
OBJECTIVES :
The course on property conventionally deals with the Transfer of Property Act,
1882. More than a Century has elapsed since the passing of the Act and far-
reaching changes have occurred in the field in property laws owing to altered
social conditions. While archaic feudal rules enacted by the colonial
administration like the rule against perpetuities find a place in the Act, the
post , independence development relating to control and use of agricultural
land do not find a place. The obsolescence of the Transfer of Property Act can
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CONTENTS
Module-4) Easements
SYLLABUS
Module-1 QUESTIONS :
Q : 2012, 4 : Explain in detail meaning and kinds of property, with case
laws.
Q : 2013, 5 : Define property and transfer of property and
explain in detail the kinds of property under the Transfer of Property
Act.
-----> Discuss in detail : Which properties may be transferred ?
Competency of person to transfer
----> Discuss : Transfer for the benefit of unborn child
Q : Procedure of transferring a property and essentials of a valid transfer
----> Discuss in detail : Rule against perpetuity
Q : 2012, 3 : Explain in detail regarding vested and contingent interests,
with decided cases.
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Go To Contents.
Module-1 ANSWERS :
Q : 2012, 4 : Explain in detail meaning and kinds of property, with case
laws.
Q : 2013, 5 : Define property and transfer of property and explain
in detail the kinds of property under the Transfer of Property Act.
Ans :
What is meant by a property :
Property has a very wider meaning in its real sense. It not only
includes money and other tangible things of value, but also includes
any intangible right considered as a source or element of income or
wealth. The right and interest which a man has in lands and
chattels to the exclusion of others. It is the right to enjoy and to
dispose of certain things in the most absolute manner as he
pleases, provided he makes no use of them prohibited by law.
The sea, the air, and the like, cannot be appropriated; every one
may enjoy them, but no one has any exclusive right in them. When
things are fully our own, or when all others are excluded from
meddling with them, or from interfering about them, it is plain that
no person besides the proprietor, who has this exclusive right, can
have any claim either to use them, or to hinder him from disposing
of them as he pleases; so that property, considered as an exclusive
right to things, contains not only a right to use those things, but a
right to dispose of them, either by exchanging them for other
things, or by giving them away to any other person, without any
consideration, or even throwing them away.
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Detailed discussion :
A. Movable property --- Immovable Property :
The Transfer of Property Act has not positively defined the term
Immovable Property anywhere. Vide Sec-3, TP Act 1882 gives
non-exhaustive and negative definition of immovable property,
which say what is not an immovable property. Section 3 :
immovable property does not include standing timber, growing
crops or grass.
Sec-3 of the General Clauses Act defines,
movable property as : "Movable property shall mean property
of every description, except immovable property."
Immovable Property as Immovable property shall include
land, benefits to arise out of land, and things attached to the
earth, or permanently fastened to anything attached to the
earth
Sec-2 of Indian Registration Act, defines,
Moveable property includes standing timber, growing crops
and grass, fruit upon and juice in trees, and property of every
other description, except immovable property.
"immovable property" includes land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries or any
other benefit to arise out of land, and things attached to the
earth or permanently fastened to anything which is attached
to the earth, but not standing timber, growing crops nor grass;
Discussion :
Sec-3 of TP Act 1882 : "attached to the earth" means-
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings;
or
(c) attached to what is so embedded for the permanent
beneficial enjoyment of that to which it is attached;
(d) Chattel attached to earth or building
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Case-law :
Shanta Bai v. State of Bombay 1958 SC 532, the distinction
between movable and immovable property was observed. If
the intention is to reap fruits from the trees, then it is
regarded as an immovable property. But if the intention is to
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2. A royalty.
3. A decree for sale of immovable property.
4. A decree for arrears of rent.
5. A right to recover maintenance allowance.
6. A machinery which is not permanently attached to the
earth.
7. Government promissory notes.
8. Standing timber, growing crops, and grass.
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Synopsis of definition :
An act by which,
A living person,
Conveys an act of transferor by which certain new titles or
interests are created in favor of the transferee
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Discussion :
Transfer is an 'action' between living persons,
There must be transfer between living persons only.
"living person includes a company or association or body of
individuals, whether incorporated or not, but nothing herein
contained shall affect any law for the time being in force
relating to transfer of property to or by companies,
associations or bodies of individuals.
living person includes non-natural persons too, ie though an
idol is not a living person, it is a juristic person and capable of
holding property,
a Court is not a living person within the meaning of Section
5 of the Act. Hence the transfers made by Court are not
governed by this Act.
The property must be in existence
The fundamental rule of transfer is that a transfer must be made
in the way prescribe by the Act.
The transferor must convey a right to the transferee
The Transfer may be made at present or future
The transfer need not be absolute. There may be a transfer of
limited interest. e.g. sale, gift and exchange are the examples of
absolute transfers, but lease and mortgage are the examples of
limited transfers.
The transfer includes sale, mortgage, gift, lease and exchange
There may be transfer of absolute or limited interest
There may be a transfer of property by a person to himself. The
Act permits joint transfer and joint ownership
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Discussion :
A person who is competent to contract is competent to transfer a
property.
Section 7 of the TPA 1882 is silent about the persons in favour of
whom transfer can be made.
Minority and insanity are legal inabilities to be a transferor.
However, It is they can be transferee ie transfer of property can
be in favour of a minor or a lunatic, provided.
A minor or a lunatic can be a mortgagee provided there is no
covenant for him to perform.
A minor or a lunatic may be a purchaser provided the sale
does not impose any obligation upon him .
A minor or a lunatic may be given a gift provided the gift does
not impose any obligation on them.
The Karta of a Hindu Joint family, a guardian, an executor or
administrator, a trustee, a person holding power of attorney to
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Rule Against Perpetuity under English and India Law : English law
allow 21 years in gross after life or lives in being while Indian Law
allow only the period of minority after a life or lives in being but in
case court appoint the guardian the minority age postponed to 21
years.
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beneficial to mankind, the transfer is not void under the rule against
perpetuity.
In Ram baran v/s Ram mohit SC held- that a mere contract for sale
of an immovable property does not create any interest in immobile
property and therefore the rule cannot apply to such contract.
b) Agreement of personal nature can not be declared void under the
rule of perpetuity.
eg A temple, under an agreement, appointed pujaris out of a
particular family to perform religious services in the temple. The
agreement is valid because the Court held that being a personal
agreement, it was not hit by rule against perpetuity
Similarly Mortgage and Lease do not fall under the rule of
perpetuity.
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1. POSTPONEMENT OF ENJOYMENT :
Postponement of enjoyment of property does not mean that the
interest of the transferee is not vested. In a transfer of property,
the primary thing is the transfer of interest of title. Possession of
property is secondary.
Enjoyment of property may be postponed until such future date or
future event which is of MUST nature and is bound to happen.
For Example- A transfers his property to B to be given to B on Bs
attaining the age of 20 years, the interest of property is vested
although the enjoyment of property has been postpone. However, if
B Dies before attaining the age of 20 years the possession and
enjoyment of the property shall go to Bs representatives or legal
heirs together with title which B already had and died having it.
2. PRIOR INTEREST :
Where a prior interest exists in the transfer there is postponement
of the enjoyment of property. But the vesting of interest is not
postponed.
eg A transfers property to B for life and then to C. Here, the
interest of C is prior vested interest. Here C has a vested interest
immediately with the transfer made to B, but C's right of enjoyment
is postponed till the life of B, because the death is the future event
and must in nature.
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4. CONDITIONAL LIMITATION :
It is the concept of English Law, which means upon happening of a
particular event the interest vested in a person shall pass on to
another person, Sec-28 of TPA.
A condition limitation does not prevent the vesting of the interest.
Rather it is implied that the interest which had already been vested
may be divested and may vest somewhere else.
Illustration : A transfers his house to B with a condition that if B
doest not take possession of this house within 6 months form the
date of the transfer, the house shall belong to C. The interest of B is
a vested interest although it is vested only for these 6 month and if
he possess the house within 6 month the vesting would be
permanent.
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Vested Contingent
1 Right of Immediate rights Merely a future possible
Enjoyment rights
accrues
2 Nature of Event No such condition Condition (on happening
(happening or non or non happening of
happening of future future event)
event)
3 Heritability It is heritable right Not a heritable right
4 Nature of Title Perfect immediately Imperfect, Perfect on
happening of or non
happening of event
5 Effect of Immediately from Condition precedent,
Interest the date of Transfer which must in nature
6 Transferability Transferable Transferable, BUT may be
defeated by reason of non
fulfillment of the condition
precedent
7 Attachment & Capable of being Not Capable.
Sale in attached or sold in
Execution of in Execution of
Decreed Decreed
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Go To Module-1 Questions.
Module-2 QUESTIONS :
-----> Discuss in detail : Doctrine of Election
Q : Explain the doctrine of les pendens, and its essentials. What is the
effect of this doctrine? Explain its exception, if any. Can the doctrine of lis
pendens affect the property sold in an auction ordered by the court.
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Go To Contents.
Module-2 ANSWERS :
-----> Discuss in detail : Doctrine of Election
Ans :
According to the principle of Doctrine of Election [Section 35 of the
TPA], a party to the transfer cannot accept as well as reject in a single
transaction.
In other words, while claiming advantage of an instrument, the burden
of the instrument should also be accepted.
Election means choosing between two inconsistent or alternative
rights . Under any instrument if two rights are conferred on a person
in such a manner that one right is lieu of the other, he is bound to
elect only one of them.
Example : A offer Rs 100 to B in lieu of transfer his house, B can
elect only one, either he can retain the money and transfer his
house or deny the money, he can not enjoy the both.
This doctrine is based on equitable principle under which a person may
not be allowed to approve that part of an instrument which is
beneficial to him and disapprove its that part which goes against him.
Means no one can approbate and reprobate at the same time.
In Cooper v/s Cooper, Held that the Doctrine of Election, applies on
every instrument and every type of property movable or
immovable.
Application of Election :
1. When a person professes to transfer a property not his own
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Difference between English & Indian Law : There is thin line between
English and India law is the residues (balance).
A professed to gift a House worth Rs 800 to B which belongs to C,
and he offers benefits to C Rs 1000, before election C dies.
According to Indian law the residue (Rs 200) would go to A
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Go To Module-2 Questions.
Q : Explain the doctrine of les pendens, and its essentials. What is the
effect of this doctrine? Explain its exception, if any. Can the doctrine of lis
pendens affect the property sold in an auction ordered by the court.
Q : 2013, 4, 5 : Explain in detail the principle of Lis Pendens with
decided cases.
Ans :
Les= Litigation
Pendens= Pending
Les Pendens is a latin phrase which means pending litigation.
The Doctrine of lis pendens emerged from the Latin maxim- "pendente
tie nihil innovature" which means during pendency of litigation nothing
new should be introduced.
The doctrine applies only on immovable properties and it prohibit any
creation of new title or transfer of property during pendency of
litigation, which means this doctrine is prohibitive in nature.
Basis of Doctrine :
The basis of doctrine is constructive notice (constructive notice is
the presumption of law that under such circumstances the other
party has knowledge of such les pendency). It is the duty of the
other party (often transferee) that he must enquire about les
pendency of the property.
Being a constructive notice, if the other party has made any
transaction related to les pendent property, it treated as abuse of
the court of law and against the public policy.
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Illustration :
A suit is pending before the court of law between a landlord and
tenant regarding rent, and if the during the proceeding the landlord
transfer the property it would NOT violate the Doctrine of Les
Pendens as the right on immovable property is not questioned.
A has a litigation in determining the title of the property with X.
During the period of litigation, A initiates a sale of the property in
favour of B. According to the Doctrine of Lis Pendens, the property
cannot be sold because the property is involved in litigation.
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Note :
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Sec-53(1) does not apply where the transfer is in itself void. This
section makes a valid transfer void at the option of creditor after
the property had already vested in transferee. The suit under this
section must accept the validity of the transfer first and then
proceed to get it invalidated by proving it to be fraudulent.
Sec-53(1) also protects the right of transferee if he acted in a good
faith.
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Doctrine of part performance protects the transferee who has done his
part or willing to perform his part, he can not be distitle on the basis
of the legal formalities having not been completed.
For example A sales his house to B, and gets the consideration
against the house and B also takes the possession of the house. A
sale deed has been made but it not being registered. A sales, once
again, his house to C, and C gets it registered, and now C is trying
to eject B. Here law would not help to B, BUT equity would help
him.
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Essentials Ingrediants :
1. Written contract for the transfer of immovable property (Transfer
for consideration, for Movable property, and must be valid contract)
2. Transferee takes possession of the property under the contract
(the possession must be in furtherance of contract, some act in
furtherance of contract, taking possession is not only the method of
part performance of contract. If the transferee is already in
possession of the property then, after the contract of transfer, he
has to do some further act in part performance of that contract. In
order to attached Sec-53-A)
3. The transferee either performed his part or willing to perform.
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Go To Contents.
Module-3 ANSWERS :
Q : 2012, 3, 4, 5 : Define sale and state the rights and liabilities of buyer
and seller, with case laws.
Ans :
Sec-54. "Sale" defined :
"Sale" is a transfer of ownership in exchange for a price paid or
promised or part-paid and part-promised.
Sale how made : Such transfer, in the case of tangible immovable
property of the value of one hundred rupees and upwards, or in the
case of a reversion or other intangible thing, can be made only by a
registered instrument.
In the case of tangible immovable property of a value less than one
hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller
places the buyer, or such person as he directs, in possession of the
property.
Contract for sale: A contract for the sale of immovable property is a
contract that a sale of such property shall take place on terms
settled between the parties. It does not, of itself, create any
interest in or charge on such property.
Discussion :
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When sale is made, Prior owner gets dis-titled, and the new owner
gets title of the property.
Transfer of ownership- In sale there must be transfer of absolute
ownership, means ownership with liability.
Money consideration- when ownership is transfer in money
consideration it is called sale, the adequacy of consideration is
immaterial. The price may be paid full, part, immediately or in
future.
Contract FOR sale does not in itself, create any interest or charge
on the property. No title or interest in respect of the property is
therefore created in favour of purchaser on the basis of such
contract.
In Laclman Nepak v/s Nadam Kayalu Syama held It is well
settled law in India that existence of any agreement for sale does
not of itself create any interest in or charge upon such property.
Even if the purchaser paid the consideration and had taken the
possession of the property on the basis of such contract, he
cannot get ownership unless a sale deed is dully executed in his
favour.
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In India contract of sale does not given any interest in the property,
the charge is created only after the conveyance. In India the charge
is created by Law not by equity.
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2. After sale :
Seller's Rights :
1.Sellers Lien or charge-
Seller's Duties :
1. Giving possession of the property
2. Convent for title.
3. Delivery of the title deed.
Buyer's Rights : Enjoy all the rights arising out of the property
Buyer's Duties :
1. Bear the loss to property.
2. Pay accruing dues beginning the date of purchase of the
property.
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In India contract of sale does not given any interest in the property,
the charge is created only after the conveyance. In India the charge
is created by Law not by equity.
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between the parties ends, when the debtor exercises his right to
redeem through paying off the loan. Any obstruction to this right
would be declared as void as a clog on the equity of redemption.
The basis of this doctrine lies in the exercise equity, justice and good
conscience[15] and is extensive to areas where the act is not
applicable[16]. On a realistic perusal of the workings of a mortgage, it
is observed in most of the cases that the mortgagor enters into such
an agreement because of some financial predicament[17]. The law
recognizes the power of the dominant party to insert clauses which
will serve his personal interests by creating impediments on the right
to redeem the property[18]. Such obstructions are henceforth struck
down by the courts to enable the mortgagee to redeem his
property[19]. In U. Nilan v. Kannayyan (Dead) Through Lrs.[20],
explaining the philosophy behind the doctrine, it was said that
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Summary :
The case "Vernon v Bethell (1762)" stands for the principle that
"once a mortgage, always a mortgage". ie mortgage is just a
mortgage, it is not deed of conveyance. In a mortgage, a borrower
does not contract to give up his right to redeem title to his property
once his debt is discharged. It was a landmark decision in upholding
some basic protection at common law for debtors.
Whether something would or would qualify as clog on the right of
redemption is something that cannot be determined absolutely. It
has to be settled through a careful perusal of the of the mortgage
deed, the circumstances surrounding the parties entering into a
mortgage, the amount advanced and nature of the transaction. The
doctrine was envisaged at a time when feudal landlords would use
their power over oppressed peasants to enter into unfair
agreements by virtue of their necessity. Where a major chunk of
the population in India still works in the agrarian sector and lives
under below poverty line without any formal banking systems, the
doctrine still has some prevalence in such situations. It is left at the
discretion of the judiciary to decide in which cases a prudent
application of this doctrine lies.
Go To Module-3 Questions.
Q : 2013, 4, 5 : Explain in detail the term Lease and state its essential
elements with decided cases.
Ans :
The word 'transfer' is defined with reference to the word 'convey'
which is used in a much wider sense to include any form of an
assurance inter vivous. A lease comes within the meaning of the word
'transfer'. The fundamental conception of a lease is that it is the
separation of the right of possession from ownership.
A lawful agreement of lease of property is a contract within the
meaning of section 10 of the contract Act. An agreement of lease must
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also be executed lawfully by the lessor and the lessee containing the
terms and conditions of the lease for lawful consideration. The lessor
and lessee must also be persons who are competent to contract.
Unless the aforesaid requirements are satisfied, an agreement of lease
of immovable property cannot be lawfully made and executed.
Sec-105. Lease defined :
A lease of immovable property is a transfer of a right to enjoy such
property, made for a certain time, express or implied, or in
perpetuity, in consideration of a price paid or promised, or of
money, a share of crops, service or any other thing of value, to be
rendered periodically or on specified occasions to the transferor by
the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined : The transferor is called
the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so
rendered is called the rent.
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A. The parties : Both parties, i.e., the lessor and the lessee must be
competent to contract. A lease cannot be created without any express
or implied contract between two parties.
B. Subject-matter : The subject-matter of a lease must be immovable
property.
C. Duration : The right to enjoy the property must be transferred for a
certain time or in perpetuity. It may commence either in the present
or on some date in future or on the happening of a event which is
bound to happen. Where day is expressed for the commencement of
the lease, such day must be excluded in computing the whole period
of lease.
If the day of commencement is not stated, the lease begins from
the date or execution. If it is expressed to commence from a past
day, that is only for the purpose of computation, and the interest of
the lessee begins from the date of execution.
Both the time when the lease begins and the time when i ends must
be fixed. Apart from leases for certain time, a lease may be in
perpetuity. Such leases are generally agricultural leases.
D. Consideration : The consideration is either premium or rent.
Section 105 bring out the distinction between a price paid and the rent
to be paid periodically to the lessor.
Premium or salami :
is the price paid or promised to be paid in a lump sum.
is a capital income
the transaction may either be,
a zuripeshgi lease, ie the premium is not given as a loan and
the relationship of a debtor and a creditor does not subsist, or
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Types of lease :
Permanent Lease.-- In India, the permanent leases or a lease in
perpetuity may be created either expressly or inferred from the
circumstances of a given case. In the latter case it is said to have
been created through a presumed grant. The tenancy of a
permanent nature in the sense that it could not be revoked so long
as the plaintiff paid rent in cash or kind, may be inferred from
various terms and conditions of a lease.
The mere fact that a uniform fixed rent had been paid for a long
time or the fact that the lessees had been in possession of the
land for a long time making construction of land at their own cost
would not raise a presumption that the tenancies were of a
permanent character. In every case an inference of permanency
of tenancy is a question of fact depending upon the facts of each
particular case. The onus of proving that a tenancy is permanent
is on the tenant setting up such a case.
Tenancy at will : A lease which is silent as to duration of term
would be void as a lease, but if the lessee has taken possession, a
tenancy-at-will is created. It arises by implication of law in cases
where a person takes possession of the premises with the consent
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Lease Licence
1. In lease , the interest in the In licence , interest in the
property is transferred . property is not transferred .
Licensee acquires only a right to
occupy the property .
2. Lease is heritable and But licence is neither heritable
transferable . nor transferable .
3. Lease can be terminated by Licence can not be terminated
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forfeiture . by forfeiture .
4. Lease can be terminated by any Licence is revocable at will by
one of eight ways enumerated the grantor .
in section 111 of the Transfer of
Property Act .
5. Lease is not affected by the On the other hand , licence is
death of either of the parties . terminated on the death of
either of the parties .
6. A lessee can sue the trespassers But a licensee can not sue the
and strangers in his own trespassers and strangers in his
capacity . own capacity .
7. In case of subsequent transfer But a subsequent transfer of the
of the property , interest of the property terminates a licence .
lessee is not defeated .
8. If during continuance of the A licensee acquires no right by
lease , any accretion is made to accretion .
the property , such accretion is
deemed to be comprised in the
lease .
Go To Module-3 Questions.
Q : 2015 : Explain in detail the term Gift and state its essential elements
with case laws.
Q : Discuss : Gift (Definition & Essential requirements), Kinds of Gift,
Onerous Gifts, Universal Donee, Exchange - Definition & Features
Ans :
Sec-122 : "Gift" defined :
"Gift" is the transfer of certain existing movable or immovable
property made voluntarily and without consideration, by one
person, called the donor, to another, called the donee, and accepted
by or on behalf of the donee.
Acceptance when to be made :-Such acceptance must be made
during the lifetime of the donor and while he is still capable of
giving.
If the donee dies before acceptance, the gift is void.
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Kinds of Gift :
Onerous Gifts :
The provisions of onerous gift is contained in section 127 of the
Transfer of property Act . Onerous gift is a gift burdened with an
obligation .
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Universal Donee :
A universal donee is one to whom all the properties , including
movables and immovables , are given by a person by way of gift
and the donee consequently becomes liable for all the debts due by
and the liabilities of the donor , to the extent of the property
comprised in the gift .
Section 128 of the Transfer of Property Act deals with the nature of
the liabilities of a universal donee .
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If all the properties are not transferred by way of gift , the donee
can not be universal donee so as to discharge the liabilities to pay
the debts due by the donor .
Section 53A of the Transfer of Property Act deals with fraudulent
transfers of movable property whereas section 128 deals with both
movable and immovable property .
Section 128 protects the interest of the creditors .
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Important features :
All the formalities associated with transfer by sale have to be
complied with, for transfer of ownership rights in exchange of
another property.
If the value of the property is Rs.100/- or more then a
conveyance deed is required to be executed and that must be
registered with the office of Registrar / Sub-registrar.
Under section 119 of the said act provides relief to a party who
suffers in transfer by exchange due to defect in the title of the
transferor. A person with defective title is liable to return the
original property of the other person and is also liable for the
losses incurred due to such exchange.
Further, under Sec-120 of TPA 1882, each party, to such transfer
by exchange, enjoys the rights and is subject to liabilities of a
seller, pertaining to the thing which he gives and enjoys the
rights and is subject to liabilities of a buyer, pertaining to the
thing which he takes. This provision is there for protection of
both the parties involved in the process of transfer of ownership
rights in immovable property by exchange.
(Sec-121) On an exchange of money, each party thereby
warrants the genuineness of the money given by him.
Difference between exchange of movable property and
exchange of immovable property is that the former is known
as barter and is subject to the Indian Contract Act, 1872,
whereas the latter is known as exchange and is subject to the
Transfer of Property Act, 1882.
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Go To Module-3 Questions.
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Illustrations :
(i) A owes money to B, who transfers the debt to C. B then
demands the debt from A, who, not having received notice of the
transfer, as prescribed in section 131, pays B. The payment is valid,
and C cannot sue A for the debt.
(ii) A effects a policy on his own life with an insurance company and
assigns it to a bank for securing the payment of an existing or
future debt. If A dies, the bank is entitled to receive the amount of
the policy and to sue on it without the concurrence of A's executor,
subject to the proviso in sub-section (1) of section 130 and to
provisions of section 132.
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Go To Module-3 Questions.
Module-4) Easements :
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Go To Contents.
Module-4 ANSWERS :
Q : Explain in detail : (1) meaning, nature, essentials, characteristics of
easement right, (2) kinds of easements, Incidents of Easements, Creation
of Easement.
Q : 2012, 3, 4, 5 : Explain the meaning, nature and essential
characteristics of easements.
Q : 2014, 5 : Explain in detail : Definition and kinds of easements.
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Caselaw :
Owner of the land adjoining the public street has got a right to
access at every point where his land adjoins Public Street : Neither
the Government nor the Municipality or any local body has got any
right to put up any obstruction over the public street so as to
prevent it from having any access to the adjoining land. It has been
repeatedly held that the owner of the land adjoining the public
street has got a right of access at every point where his land
adjoins public street. In view of the above ratio the fencing of an
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iron fence put up between the land of the petitioner and that of the
suit cart track is illegal and on that ground alone the petitioners are
entitled to an order of injunction as prayed for[4].
Owners right to enjoy limited by Municipal Act : Under the Bombay
Municipal Corporation Act (iii of 1888), the Bombay Municipal
Corporation has power to enter upon lands belonging to private
owners , to make connection between their main pipes and to lay
the pipes forming connection through or under such lands , even
without the owners permission , provided reasonable notice is given
to them.
Owners right to build any structure on his land : Parties may build
whatever structure they please on their land, i.e., a Hindu temple,
by the side of a mosque, provided that they do not interfere with
the free enjoyment of the neighbors property. The general rule of
law is that the owner of one piece of land has a right to it in the
natural course of user; unless, in doing so, he interferes with some
right created either by law or by contract. This has been uniformly
followed by the courts in India as evident from the decisions in
Gopalkrishna Panicker v. Thirunakkara Devasworn.
Right of owner to build a ridge on his land : A person has a natural
right, as owner of land, to raise a ridge on his own land, adjoining a
highway, so as to prevent water flowing from such highway into his
garden ;and the Municipality will be guilty of trespass and liable for
damages, if it removes the ridge so put up. An injunction may be
granted restraining such illegal act.
Easement of discharging water : A right of easement to allow the
water from the plaintiffs mori and roof to fall on the defendants
land will not entitle the plaintiff to claim that the land shall be kept
open and unbuilt. The defendant can build making necessary
arrangements to receive the water from the mori and roof and to
carry it away.
Easement of discharging smoke: Building on the servient
tenement : An injunction to restrain the servient owner from
building on his land so as to interfere with the right of easement to
discharge smoke over such land may be granted.
Magistrate may make an order to prevent riot : Any person is
entitled to establish a market on his own land, and the owner of
a neighbouring market has no right of the suit for the loss which
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may ensue from the establishment of the new market. This right
is subject to the order of the Magistrate to prevent riot,etc.
Fundamental position as the right to build : So far as the right to
build is concerned, the fundamental position is that every person is
entitled to build right up to the limits of his own property. In doing
so , must not infringed the right of the owner of adjoining property.
But these rights have first to be acquired. If they are not acquired
then the fundamental position remains. If the fundamental position
is that a man is entitled to right upon the limit of his own property,
then the mere fact that he exercises that right cannot be regarded
as an actionable nuisance. The decision cited in Cawashah Bomanji
Parakh v. Profulla Nath Rudra.
Natural right of passage arising out of the location of plots : Natural
rights are rights in rem, that is enforceable against all who may
violate them,and they are either affirmative, as rights to do
something, or a negative, as rights which every owner of
immoveable property has, that his neighbor shall not disturb the
natural conditions under which he enjoys his property. Sections 7(b)
of the Indian Easement Act deals with rights to advantages arising
out of situations have been dealt with. A set of statutory
illustrations have been provided under the section. None, however
deals with a right of passage, Bramwell, L.J., in the case of Bryant
v. Lefever, observed :
it is to have all natural incidents and advantages , as nature
would produce them; there is a right to the light and heat that
would come ,to all the rain that would fall to all the wind that
would flow ; aright that the rain , which would pass over the
land , should not be stopped and made to fall on it ; a right
that the wind should not be checked , but should be able to
escape freely; and it were possible that these rights interfered
with one having no right , no doubt an action would lie. But
these natural rights are subject to the right of the adjoining
owners , who , for the benefit of the community , have and
must have rights in relation to the use and the enjoyment of
their property that qualify and interfere with those of their
neighbours rights to use their property in various ways in
which property is lawfully and commonly used.
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Go To Module-4 Questions.
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If the purchaser has no right of way to access the road, the seller
will grant to the purchaser a right of way over his property. Here
the seller of the plot has to execute a separate deed in favour of the
purchaser granting a right of way.
A private right of way can be either permanent or periodic or for a
particular time during the day only, or seasonal or for a limited
time, for to and fro movement of human beings, cattle and light
vehicles. In case, right of way is by way of formal grant, drawing
showing the passage is often marked in different colours and
annexed to the document of grant.
The dominant and servient owners have certain rights and
obligations to maintain and preserve the easement. While
exercising his right over the property of the servient heritage, the
dominant owner has responsibilities to preserve the easement. His
acts and deeds shall not put the servient owner into inconvenience.
Being the actual user he shall rectify the damages if any caused by
his acts at his own expense.
Apart from statute, the determination of the question who may use
a right of way, depends upon the nature and extent of the right. If
the right is created by grant, the persons or classes or persons
entitled to use it may be expressly limited by the terms of the
instrument, a grant of this kind being construed, not strictly, but in
accordance with the apparent intention of the parties. As a general
rule the persons or the classes of persons who may use the right
must be ascertained by construing the instrument having regard to
the general circumstances surrounding the exception of the grant.
The most important of these circumstances are the nature of the
place over which the right is granted, and the nature of the
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dominant tenement, and the purposes for which that tenement is,
in the contemplation of the parties, intended to be used.
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Easements of air and light arise only in the thickly populated cities
and towns. Earlier buildings were constructed close by often
ignoring the conveniences of the nearby inhabitants. Virtually no
space was left in between the buildings hindering airflow and
natural light to the smaller houses. The inhabitants of houses who
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were getting fresh air and natural light suddenly found these were
denied to them because of a multi-storied building nearby.
Haphazard constructions are no more a rule of modern architecture.
Presently, buildings are constructed in a well-planned manner.
Leaving minimum set backs as prescribed between two buildings for
free flow of air and natural light is now mandatory.
Therefore, anyone who comes into possession of a servient heritage
has to carry the burden of easement for all times to come for the
benefit and enjoyment of the person who comes into possession of
the dominant heritage. This sort of master-servant relationship
cannot be severed as long as such properties co-exist.
REMEDIES :
Regarding the cases of easementary right of light the Courts
generally do not interfere by way of injunction where the courts
find that the obstruction of light is very slight and where the
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Right of support :
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Right of water :
Easements are also separate from natural rights, which operate
universally and do not have to be created. Some natural rights
appear similar to easements. For example, the right to water from a
stream or river is a right which may be extended through the
operation of an easement.
Go To Module-4 Questions.
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you can take action to remove the interference yourself or you can bring
proceedings in the courts.
A. Declaratory relief :
Quite often, all that a claimant wants, having gone to the trouble of
issuing proceedings, is a declaration by the court confirming the
existence, and defining the extent, of the easement. Although
damages may also be sought arising from the interference, a claimant
needs certainty so that it is confident in its future use of the
easement.
Declarations are a discretionary remedy and are viewed by the courts
as a useful way of confirming the rights and duties of the respective
parties (often without the need for penalising a transgressing party by
way of injunction or damages).
It is also possible to obtain a negative declaration that a proposed
action, such as the development of land subject to an easement, will
not amount to an interference.
A declaration by the court is binding on the parties to the proceedings
and their successors in title (unlike an injunction which only binds the
parties). As a result, all parties with an interest in the proceedings
should be joined in the action.
However, it is not a contempt of court to fail to comply with or ignore
a declaration. If that happens, the injured party should go back to the
court to seek an injunction to enforce the declaration. It is, therefore,
often prudent to ask the court to grant liberty to apply for an interim
injunction in the event that the declaration is ignored.
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Injunctions :
Injunctions are equitable remedies, which may be awarded at the
discretion of the court. An injunction is only binding on the parties to
the proceedings and not on their successors in title, but breaching an
injunction is a contempt of court. An injunction will not normally be
granted where damages would be an adequate remedy for the
claimant.
There are three types of injunctions :
Mandatory, which orders the defendant to do something.
Prohibitory, which orders the defendant to refrain from doing
something.
Quia timet, which orders the defendant to act to prevent future
harm occurring.
An injunction may be awarded only where damages would not
adequately compensate the claimant. Injunctions may be interim
(interlocutory) or final (perpetual), and can be awarded
unconditionally or subject to such conditions as the court thinks fit.
An injunction is a very effective remedy and, if granted, will effectively
prohibit any further interference with the easement as established.
However, an injunction is a rather draconian remedy and the courts do
not grant injunctions lightly.
Damages:
Damages in respect of disputes concerning easements are calculated
on a tortious measure of damages basis. Damages for trespass or
nuisance are assessed to compensate the claimant for the loss
actually suffered as a result of the defendant's actions. If the claimant
has suffered no loss, the most the claimant can recover is nominal
damages.
Not all losses that flow from a tort are recoverable. Damages for
liability under tort are restricted by certain principles. For example,
sometimes:
Losses will be viewed as too remote to be recoverable.
There will not be a sufficiently strong causal connection between
the breach and the loss.
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Abatement :
There is a general and limited common law principle that a party is
entitled to enter onto another's land in order to put an end to an
interference. This is known as abatement, and it comprises of both :
A right to enter onto the servient land in certain circumstances.
A remedy of putting right the interference.
Abatement can only be used where a cause of action exists and, in the
case of easements, this lies in nuisance. So, for example, abatement
may be used to lawfully remove an obstruction that is blocking a right
of way.
Abatement is only appropriate in simple cases or where an immediate
remedy is needed.
If there is more than one way to abate the nuisance, the least
"mischievous" method should be used as the party abating a nuisance
must act in the most reasonable manner available.
The party abating the nuisance must not cause any unnecessary
damage.
A claimant cannot resort to abatement if a court has already refused a
mandatory injunction.
Abatement must be exercised promptly.
Unless it is an emergency, or there is no need to enter onto someone
else's land, the party abating the nuisance should give notice to the
party causing the nuisance.
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Go To Module-4 Questions.
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Suspension of easements :
There are two conditions under which easement right gets
suspended :
1. Sec-49 : An easement is suspended when the dominant owner
becomes entitled to possession of the servient heritage for a limited
interest therein or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein.
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Revival of easements :
Section 51 of IEA 1882 provides for revival of such an easement,
which was extinguished by complete destruction of either heritage,
AND status quo is restored within twenty years of extinguishment.
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Framji- vs- Framji, Held by Bombay high court that in case of (c), it is
not necessary that such new building be of the same dimention as the
old one.
Note :
An easement extinguished under Section 46 revives when the grant
or bequest by which the unity of ownership was produced is set
aside by the decree of a competent Court.
A 'necessary' easement extinguished under the same section
revives when the unity of ownership ceases from any other cause.
A 'suspended' easement revives if the cause of Suspension is
removed before the right is extinguished under Section 47.
Go To Module-4 Questions.
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Go To Module-4 Questions.
Go To Contents.
SUGGESTED READING :
Mulla, Transfer of Property Act, Universal Delhi
Subbarao, Transfer of Property Act,
C. Subbiah Chetty, Madras B. Sivaramayya, The equalities and the Law,
Eastern Book Co. Lucknow.
P.C. Sen. The General Principles of Hindu, Jurisprudence (reprint) Allahabad
Law Agency.
B.H. Baden-Powell, Land Systems of British India, Vol. 1 to 3 (1892), Oxford
V. P. Sarthy, Transfer of Property, Eastern Book Company, Lucknow.
Vepa P. Sarathi: Law of Transfer of Property, Eastern Book Company
T. R. Desai : The Indian Easements Act, 1982
B. B. Katiyar : Easements and Licences, Universal Law Publishing Co.
Sanjiva Row : The Indian Easements Act
K. Joshi : Easements and Licences Peacock : The Law relating to Easements
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