Transfer of property act 1882

Section 3 - Attested :

Attested in relation to an instrument, means attested by two or more

witnesses each of whom has seen the executant sign or affix his
mark to the instrument,
or has seen some other person sign the instrument in the presence
and by the direction of the executant, or has received from the
executant a personal acknowledgement of his signature or mark, or of
the signature of such other person, and each of whom has signed the
instrument in the presence of the executant;

Attested means a person has signed a document by the way of

testimony of the fact that he saw it executed.

● A party to the deed canʼt act as an attesting witness.

Legal effect
Mere attestation of document does not mean that the witness had
notice of the content it simply implies that the executant of the
document has signed before attesting witness and therefore estops
from denying the fact of execution Bhagwan singh v. Ujagar singh

Requisites of a valid attestation-

!. There must be two or more person as witnesses

@. Witness must be major and possess sound mind

A. Each witness must

● see the executant sign the instrument; 

● or, see some other person sign the instrument in the presence, and

by the direction, of the executant

● or, receive from the executant a personal acknowledgment of his
signature

B. Each witness must attest in the presence of executant.

C. Each witness must sign only after the executant is complete.

D. The witness should have put his signature animo attestandi

(intention to attest).

Section 3 - Actionable claim:

Section 3 of the to act define actionable claim as a claim

!. to any debt, other than a debt

● secured by mortgage of immoveable property or

● by hypothecation or pledge of moveable property, or

@. to any beneficial interest in moveable property; not in the

possession(actual or constructive)of the claimant

Meaning
The claim of any unsecured debt or certain fixed sum of money which
is payable by reason of an obligation is termed as actionable claim.
Example:- landlordʼs claim for arrears of rest against his tenant

Any claim for an uncertain amount is not an actionable claim like

damages for breach of contract.

Essentials

!. It must be an unsecured debt

@. Must be perfect and absolute
A. Must have a fixed sum to be claimed

Distinction between mere right to sue and actionable claim

Mere right to sue
The word mere is significant and
implies that there is no internet
other than a bare right.
Right of action for damages on
breach of contract is a bare right
Not transferable
Uncertain amount
Actionable claim
A claim to any debt not secured
by mortgage or pledge
The beneficial interest in a
subsisting contract
Transferable
Ascertainable amount

Section 3 - Notice

A person is said to have a notice of a fact when he actually knows that

fact, or when, but for willful abstention from an inquiry or search which
he ought to have made, or gross negligence, he would have known it.

Section 3 of Transfer of Property Act enumerates 2 kinds of notices—

(a) Actual or express notice
(b) Constructive notice

Actual notice: A person is said to have actual notice/express notice of

a fact if he actually knows it. It must be definite information given in the
course of negotiations by person interested in the property. A person is
not bound to attend vague rumors.
Constructive notice: It is a notice which treats a person who ought to
have known a fact, as if he actually knows it. A person has constructive
notice of all the facts of which he would have acquired actual notice
had he made those inquiries which he ought reasonably to have made.
Constructive notice has roughly been defined as knowledge which the
court imputes to a person upon a presumption so strong that it cannot
be rebutted that the knowledge must be obtained.

Equitable Doctrine of notice

When the circumstances of the case are such that the court arrives at a
conclusion that The party had a reasonable opportunity of knowing a
certain fact but for his negligence he could not
equity will deem that he had notice of it

Application of doctrine :-

!. Section 39-transfer where third person is entitled to maintenance

@. Section 40-obligation arisng out of contract in immovable property,
such right may be enforced with notice
A. Section 41- transfer by ostensible owner
B. Section 100- charge, no charge shall be enforced against any
property in the hands of a pardonto whom such property has been
B.

trasfered for consideration and without notice of of the charge

C. Section 106- lease

Section 5 - Transfer of property

means any act by which a living person coveys property in

present or un future to one or more living persons, or to himself
“and to transfer “is to perform such act.
Transfer means a process or an act by which something is made over to
another,
It does not mean that making of such thing must be absolute it can me
temporary like leases and absolute like sale and gift.

A transfer connotes creation of some interest in property

Requisites of a Vaid Transfer

!. Existence of property- there must be a tangible property in

existence having ownership right and possession in the property
@. property must be transferable - only property except the ones
which mentioned in section 6 can be transferred.
A. Transferor must be competent to transferor must me major,of
sound mind and not disqualified by law to transfer
B. lawful Consideration- transfer can only take effect when there is
a lawful consideration .
C. Inter-vivos- the transfer can only take place between living person
(include legal person like co.)
D. Transfer of interest-the word transfer means the transfer of
D.
interest in the property which is essential and not the actual
physical transfer.

Exception :
As the transfer of propertyʼ means ‘conveying of propertyʼ, i.e., creation
of new title or interest in the favour of the transferee, if new title or
interest has not created in favour of transferee , the property cannot be
said to be conveyed, thus no transfer of property.

!. Partition- its has not been considered as a transfer because there

is nothing new obtained by a co-sharer on partition and no new
interest or right is created in the property
@. Family settlement- a mere adoption of measures for suitable use
of property to resolve disputes between family does not constitute
a transfer..
A. charge- The only right created in a charge is a right to payment
out of the property subjected to charge, thus it is not a transfer.
[Gobind Chandra v. Dwarka Nath, (1908) 35 Cal 837]
B. Relinquishment:—It is an extinction of a right and therefore, there
is nothing left to transfer. Thus a relinquishment by a reversioner of
his reversionary interest does not amount to transfer (Barati Lal V.
Salik Ram, 38 All 107). But if the person in whose favour the
‘releaseʼ is executed, gets certain rights by virtue of such release,
the transaction may amount to a transfer [Maniapp pillai v.
Periasami, (1975) 1 MU 236].
C. Surrender.—It is not a transfer as it is the manager of a lesser
estate with a greater one [Multhan Lal Saha v. Nagendra Nath
Adhikari, (1933) 60 Cal 379].
D. Easement.—The creation of an easement does not amount to a
transfer.
i. Will.—Because it operates from the death of the person making it,
while the definition contemplates a transfer by a living person, does
not fall within the definition of transfer.
j. Compromise.—It may or may not amount to transfer. It depends
on the facts and circumstances of each case. In Hussiaa Banu v.
Shivanarayan, AIR 1968 MP 307, it was held that where one of the
parties to a settlement gives up a claim to receive a certain sum of
money from the other, in consideration of the latterʼs given up the
right to certain property claimed by him, it would amount to a
transfer.

Section 6- what may be transfered

property of any kind may be transfered except the trasfer of property
which is prohibited under this section
This section enumerates different kinds of property which cannot be
transferred (Exceptions to Section 6)

1. Spes Successionis [Section 6(a)]—“The chance of an heir-

apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like
nature, cannot be transferred.”A mere possibility/chance/expectancy of
an, heir succeeding to an estate is excluded from the category of
transferable property,

2. Right of Re-entry. [Section 6(b)] “A mere right of a re-entry for

breach of a condition subsequent cannot be transferred to anyone
except the owner of the property affected thereby. By a Mere given to
right of re-entry meant a right to resume possession of-land which has
been given to another person for a certain time. It is usually inserted in
lease empowering the lessor to re-enter up a breach of covenants in the
lease.
3. Easement [Section 6(c)]— “ An easement cannot be transferred
apart from the dominant heritage.”
An easement B a right to use, or restrict the use of land of another in
some way, for example, right of way, right of water or light, etc. (Section
3 Easement Act). These right cannot be transferred without the
property which has the benefit of it.

4. Restricted Interest [Section 6(d)].—”An interest in property

restricted in its enjoyment to the owner personally cannot be
transferred by him”
E.g., if a house is lent to a man for his personal use, he cannot transfer
his right of enjoyment to another. Similarly a religious office like those
of mutawali of a wakf or of mahant of a math and emoluments attached
to priestly office cannot be transferred. ,

5. Maintenance [Section 6(dd)].—”A right to future maintenance, in

whatsoever manner arising secured or determined, cannot be
transferred.”
A right to future maintenance is only for the personal benefit of the
person to whom it is granted, thus it cannot be transferred.

6. Mere right to sue [Section 6(e)] —”A mere right to sue cannot be
transferred.”
A right to sue is personal to the party aggrieved, as for, e.g., damages
for the breach of contract or for tort, claims for past mesne profit for
suing an agent for accounts, for pre-emption, etc. These rights cannot
be transferred. But where the right to sue has merged in a decree, the
right under the decree is assignable. Thus, a right to mesne profit or
damages under a decree is assignable.
7. Public office [Section 6(f)].—”A public office cannot be
transferred, nor can the salary of a public officer, whether before or
after it has become payable.”
Thus prohibition is based on the ground of public policy as the public
office is held for qualities personal to incumbent.

8. Pensions [Section 6( g)]—"Stipends allowed to military, naval, air

force and civil pensioners of the government and political pensions
cannot be transferred, pension means a periodical allowances or
stipend granted not in respect of any right of office but on account of
part services of particular merits.

9. Nature of Interests [Section 6(N)]. —”No transfer can be made

(1) in so far as it opposed to the nature of the interest affected thereby,
or (2) for an in so far unlawful object or consideration within the
meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a
person legally disqualified to be a transferee. “
This clause forbids the transfer of certain things which from their very
nature are not transferable, e.g., res communes (things of which no
one in particular is the owner and may be used by all men),res nullius
(things belonging to nobody).Res extra commercium (things thrown
out of commerce)

10. Un-transferable interests [S[Section 6(i)]Nothing in this

section shall be deemed to authorise a tenant having an un transferable
right of occupancy, the farmer of an estate in respect of which default
has been made in paying revenue, on the lessee of an estate, under the
management of a court of wards to assign his interest such as such
tenant farmer or lessee.”

Section 10 -Condition restraining alienation

Rule against inalienability
The general rule in section 8 is that a grant prima facie carries with it all
its legal incidents, but that it may be modified according to the wish of
the people.

However, it may be modified according to the wish of the parties. This

rule of contract is expressed in the maxim
Moduset convention vincut legem - the agreement of parties
overule the law.
Which means the parties are at liberty to make restricted transfer
subjects toh the condition imposed in section 10
It deals with both conditional and absolute transfer

“Where property is transferred subject to a condition or limitation

absolutely restraining the transferee or any person claiming under
him from parting with or disposing of his interest in the property, the
condition of limitation is void.

This is based on the general rule of law which is expressed in maxim

“alienatio rei praefertur juri accrescendi” that is to say that
alienation is favoured by law rather than accumulation.

● This is general economic principal that there should be free

circulation and disposition of property.
● An absolute restraint is repugnant to the nature of the estate and is
an exception to the very essence of the grant under section 8

Here the sections says that only the condition (restraining

alienation) is void and not the transfer itself.
In Rosher v. Rosher, (1884) 26 Ch D 801, a person A made a gift of
house to B with a condition that if B sold during the life-time of Aʼs wife,
she should have an option to purchase it for Its. 10,000. The value of
the house was Rs. 10,00,000. This was held to be a effect an absolute
restraint and void.

Partial Restriction allowed

The conditions or limitation on alienation may be either absolute or
partial. Absolute restraints are declared void under Section 10,
however partial restraints may be allowed.
An absolute restraint is one that takes away the power of alienation
completely or substantially, whereas, partial restraint is one that
imposes some restriction on the power of alienation but the transferee
is substantially free to alienate property in various ways.

Illustrations
(i) A condition that transferee shall not transfer the property by way of
gift, is a partial restraint and thus valid.
(ii)  A condition that transferee shall not transfer the property family/or
to a particular person only, is a partial restraint and thus valid. case :-
re macley
(iv)  A compromise by way of settlement of family disputes has been
held to be valid, although it involves an agreement in restraint of
alienation.

In Mata Prasad v. Nageshera Sahal, (1925) 47 All 884, a dispute

relating to succession between a widow and the nephew was
compromised on terms that the widow was to retain possession for life
while the title of the nephew was admitted with a condition restraining
him from alienating during her life-time. The compromise was held to be
valid.
 In Renand v. Tourangeaon, (1867). LR 2 PC 4, it was held that a
condition that transferee shall not transfer the property for a period of
twenty years is an absolute restriction and thus void. If it were a
condition that transferee shall not transfer the property for a period of 3
years, it would be a partial restraint and thus valid.

 Exceptions to the rule :

!. Lease: When the condition is for the benefit of the lessor or those
claiming under him, it will be valid. Thus a condition in lease that
the lessee should not sublet or assign is valid. The logic behind this
exception is that landlord should be free to choose the person who
shall be in possession of his land.
@. Marriage woman: A condition restraining alienation may be
imposed when the property is transferred to a married woman is
not a Hindu Mohammedan or a Buddhist.

Section 11- Restriction repugnant to interest created

● This section deals with absolute transfer

“where, on a transfer of property, an interest therein is created

absolute in favour of any person, but the terms of transfer direct that
such interest shall be applied or enjoyed by him in a particular
manner, he shall be entitled to receive and dispose of such
interest as if there were no such direction.

Where any such direction has been made in respect of one piece of
immovable property for the purpose of securing the beneficial
enjoyment of another piece of such property, nothing in this
section shall be deemed to affect any right which the transferor
may have to enforce such direction or any remedy which he may have in
respect of a breach thereof.”

Thus a transferee of property who takes an absolute interest cannot be

restrained in his enjoyment or disposition of it by any condition inserted
in the transfer.
Section 11 provides that any condition restraining the enjoyment of the
property which is transferred absolutely is void.

When a property is transferred absolutely, it must be transferred with all

its legal incidents. If any condition or limitation is imposed in the deed of
conveyance, that would be repugnant to Section 11 of the T.P. Act; Smt.
Manjusha Devi v. Suinit Chandra Mukherejee, AIR 1972 Cal 310.

The following restrictions are void according to Section 11 of

T.P. Act—

(i) A makes an absolute gift of a house to B with a condition that the gift
will be forfeited if B does not reside in it.

(ii) The transferee should always let the land at a definite rents or
cultivate it in a particular manner.

Section 11 is practically a corollary to Section 10. The distinction

between Section10 and 11 is that section 11 only talks about restriction
on absolute transfer and its treatment.

Condition postponing enjoyment

A condition postponing enjoyment beyond the Minority of the
transferee is void for repugnancy- enjoyment canʼt be restricted beyond
minority of person to whom the absolute interest is transferred.

Exception
The second paragraph of Section 11 provides the exception to the
general rule contained in first paragraph. According to it, the transferor
may impose conditions restraining the enjoyment of land if such
conditions are for the benefit of his (transferorʼs) adjoining land.” Tulk
v. Moxhay, 2 Phill 774.

Illustrations:
(1) A owns two properties X and Y, and sells X to B. A imposes
restriction on B that he shall for the more beneficial enjoyment of Y,
keep open a portion of X enjoyment of Y, keep open a portion of X
adjoining Y and not build on it. The restriction is valid and enforceable
against B.
(2) A owns two properties X and Y and sells X to B and imposes a
condition on B that B shall lay out money in building and repairing a
drain passing over X adjoining Y. The restriction is valid and
enforceable.

(3) A makes an absolute gift of a house to B, and directs that B shall not
raise it higher, so as to obstruct the passage of light and air to Aʼs
adjoining house, the direction will be valid.

Section 13- Transfer for benefit of unborn

where on a transfer of property , an interest therein is created for the

benefit of a person not in existence at the date of the trasfer subject to
prior interest created by the same transfer, the interest created for the
benfit of such person shall not take effect, unless it extends to the
whole of the remaining interest of the transferor in the property.

Essential conditions
In trasfer of property for the benefit of the unborn person following
conditions must be fullfilled:

!. The transfer can only be directed to a person not in existence at the

time of the transfer only to an unborn person

@. The transfer canʼt be directly made there must be the Existence of

prior interest (medium of trust )-a living person

A. Only absolute interest of the property may be transferred in

favour of an unborn person.

Prior life interest

Where a person intends to transfer certain property for the benefit of an
unborn person such unbon born is the ultimate beneficiary . but since
The unborn beneficiary is not in existence, property cannot be given to
him directly
therefore there must be a prior life interest in favour of living person so
that such living person holds the property during his life and till the time
the unborn would come into existence.

Only absolute interest Be transferred

Section 13 enacts that interest given to the unborn person must be the
whole of the remaining interests of the transferor in the property.If
there is any other limitations which derogates or cut short the
completeness of the grant in favour of the unborn such transfers is
void.

In all the transfers for the benefit of the unborn following directions are
followed

● Before ultimately transferring the property to the unborn the

Transferor Must create a prior interest Who will take care of the
property until the unborn comes into existence.

● The transfer can himself be a prior interest and can also create any
amount of successive prior interest With whom the property will
rest.

● Before the death of last prior interest the unborn must come into
existence otherwise the property will revert back to the transferor
and his legal heir.

● The day Unborn person comes into existence the property Gets
transferred to the unborn absolutely

Section 14-Rule against perpetuity or the Rule again

double possibility

“Perpetuity in the primary sense of the word Is your disposition which

makes property in inalienable for an indefinite period”
The object of rule against perpetuity is to ensure free and active
circulation of property both for the purpose of trade and commerce as
well as for the betterment of property itself. Rule against perpetuity is
therefore based on broad principles of public policy.

Section 14 of the TP act in and see itʼs the modern rule against
perpetuity is concerned with interest arising in future and not with
interest arising in present.

Section 14 lays down the rule in following terms

“No transfer of property can operate to create an interest which is to
take effect after the lifetime of one or more persons living at the date of
such transfer and the person living at the date of such transfer and
(+)the Minority of some person who shall be in existence at the
expiration of that period and to whom, if you attains full age the interest
created is to belong”

Section 14 of the transfer of property act provides that in a transfer of

property, vesting of interest cannot be postponed beyond the life of
last preceding interest a living person and a minority of the ultimate
beneficiary.

Essential Elements of the rule against perpetuity

!. transfer of property to unborn

@. the vesting of interest in unborn is preceded by prior interest for

life.

A. the ultimate beneficiary must come into existence before the death
of last prior interest

B. Wvesting of interest in unborn may be postponed only upto the life

or lives of living persons plus minority of ultimate beneficiary.

maximum possible remoteness of vesting

permissible vesting = life of all prior interest + period of gestation of
ultimate beneficiary + minority of such beneficiary

illustration :- A transfers certain property to UB making X as prior

interest for life and then Y as prior interest untill UB comes into
existence
X and Y are living at the date of the transfer and UB is the ultimate
beneficiary. Here the last prior interest is Y and before his death UB
must come into existence or in mother's womb. the maximum period for
which vesting of property can be postponed is equal to :- remaining
life of Y + 9month gestation period + 18years

Contingent interest:
The property does not vest in unborn untill he attains majority he only
has a contingest interest in the property. after the death of last prior
interest and before Unborn attains majority between that period the
interest will remain contingent on the attaining majority, say for example
UB dies at the age of 15 the property will revert back to transferor if
alive or to his legak heir if dead.

Exception to the rule against perptuity

!. transfer for the benefit of public-property transfered for

advancement of knowledge commerce health and safety
@. personal agrrements: mere contract to sale will not does not create
any interest in the immovable property and therefore the rule in
inapplicable

Section 17- Direction for accumulation

(1) Where the terms of a transfer of property direct that the income
arising from the property shall be accumulated either wholly or in part
during a period longer than—
(a)     the life of the transferor, or
(b)     a period of eighteen years from the date of transfer,

Rule Against Accumulation

Section 17 does not allow accumulation of income from any property for
an unlimited period restraining the free enjoyment of benefits
(rents,produce or profits) by the owner
Under section 17 direction for accumulation of income is allowed but
not beyond a certain period. The maximum permissible period up to
which income of property may be accumulated is

!. Life of the transferor

@. A period of 18 years
(Which ever is longer in both of the above)

A direction which separates the income from the property as to form a

separate fund, thereby postponing the beneficial enjoyment of
property, Any direction which makes accumulation of income beyond
this period of maximum permissible postponement is void and
inoperative under section 11 for repugnancy.

Exception to the rule against accumulation.

!. Payment of debts
@. Raising portions for children
A. Preservation or maintenance of property
Section 19- Vested interest

Where on a transfer of property, an interest therein is created in favour

of a person without specifying the time when it is to take effect, or in
terms specifying that it is taking fact forthwith or on the happening of
an event which must happen, such interest is Vested, Unless the
contrary intention appears from the terms of the transfer.

Section 21-contingent interest

Where, on the transfer of property, and interest therein is created in

favour of a person to take effect only on the happening of an specified
uncertain event, or in not happening of a specified uncertain event ,
such person thereby acquires a contingent interest in the property such
interest become a Vested interest, in the former case the happening of
the event, in the latter, when the happening of event becomes
impossible.

Vested interest v. contingent interest

!. A person takes a vested interest in the property when he acquires

a propriety right in it but the right of enjoyment is only deferred till a
future event happens which is certain to happen.Contingent
interest is one in which neither any proprietary right nor any right
of enjoyment is given at present but both depend upon future
uncertain event.

@. In a vested interest the transfer is Complete.In a contingent

interest the transfer is not complete until the specified event
happens or does not happen.
A. Vested interest is not defeated by the Death of the transferee
before it obtains possession. A contingent interest cannot take
effect in the event of transfereeʼs death before fulfilment of
condition

B. Vested interest is both transferable as well as heritable, but a

contingent interest is not so

C. In vested interest right accrues in present immediately even

though the enjoyment is postpones this is not with contingent
interest

The transferee having vested interest may not necessarily be In

possession. Interest may be vested and yet not in possession in any of
the following three cases

!. Buy a provision postponing enjoyment

@. By the intervention of prior interest
A. By provision of accumulation

Section 25-Conditional transfer

“ when An interest created on the transfer of property is made

dependent on fulfilment of a condition, Fails if the fulfilment of the
conditions is impossible, or is forbidden by law, or is of such a nature
that if permitted it would defeat the provisions of law, is fraudulent,
involves and implies injury to the person or property of another or the
court regards it as immoral or opposed to public policy.”

It means when an interest is created on the transfer of a property

depending on the fulfilment of a condition by the transferor, such
transfer is called a conditional transfer

Provided that
!. Such condition is not impossible
@. Such condition is not forbidden by law
A. Such condition does not imply injury
B. Such condition is not against public policy

Example:-
– A letʼs a farm to B on the condition that he shall walk 100 miles in an

hour the lease is void.

– A transferred Rs.500 to B on the condition that he shall murder C

the transfer is void

There are three kind of conditions namely

!. Conditions Precedent
@. Condition subsequent
A. Collateral conditions

Condition precedent and condition subsequent

Section 26 -fulfilment of condition precedent

With the terms of the transfer of property impose a condition to be
fulfilled before a person can take an interest in the property, the
condition shall be deemed to have been fulfilled if it has been
substantially complied with.

Example:-A transfers Rs. 5000 to B on the condition that he shall leave

his job
B quits his job therefore be is deemed to have fulfilled the condition.

Section 29 -fulfilment of condition subsequent

The condition which is required to be fulfilled after the transfer of

property has already taken place, therefore where a condition
subsequent has been imposed in a transfer, the interest of the
transferee which has already been vested in him is affected by
fulfilment or non-fulfilment of that condition.

Example:- A transfers the farm to B on condition that he must get a job

within three years after the date of transfer. B does not get a job
within the period prescribed, his interest in the farm ceases

Collateral condition
The condition is collateral if it is required to be fulfilled simultaneously
with the transfer in other words the collateral condition is required to be
Performed side-by-side the Operation of transfer.

Condition precedent v. Subsequent

!. Condition precedent is one which must happen before the

property gets transferred however condition subsequent is one
by happening or not happening of which an existing interest in
property will be defeated.

@. Where the condition is precedent the property is not with the

transferee until the condition is performed but where the
@.

conditions subsequent the property immediately vests in the

transferee remains with him till the condition is broken.

A. If the condition precedent becomes impossible or unlawful

Interest in the property will not arise and the transfer will be void
however in case of Immortal and impossible conditions
subsequent, the interest vested in the transferee will remain and
condition will be ignored

B. The condition Precedent Is fulfilled if it is substantially complied

with however the condition subsequent must be strictly
complied with.

C. Condition subsequent being void the condition fail but the

interest created is not affected what is the condition precedent is
void the transfer fails

Section 27 -Doctrine of Acceleration

According to the Rule of Acceleration, on failure of prior interest in the

property the subsequent interest is Accelerated, i.e, It takes Effect
before it would normally come into existence this section however does
not apply unless the prior and Ulterior dispositions refer to the same
interest.
The object of the rule is to give effect to the intention of the transferor.
Where No particular mode of Failure is specified, it is presumed that the
transfer was for the benefit of subsequent transferee in whatever
manner the prior interest may fail.
But where the transferor specified the mode of failure of prior interest
as the only condition on which he intends the subsequent interest to
take effect

the subsequent interest will fail in accordance with the intention of the
transferor if Failure of prior interest has not taken place in the manner
specified.

Examples:- Joe transfers Rs.500 to max on the condition that Max

shall Execute a certain lease within three months after Joeʼs death and
if he neglect to do so to Patrick, max dies during joeʼs life time the
disposition in favour of Patrick takes place

Section 35 - Election when Necessary

The doctrine of election is founded upon the principle of equity so it
applies to all persons irrespective of their personal laws.
The principle of this equitable doctrine is that he who accepts a benefit
under a deed or instrument must renounce all the right under such
deed i.e No one can approbate and reprobate at the same time

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 on one right is in lieu of the other, he is bound to elect only
one of them.

The act says “when a person professes to transfer property

which he has no right to transfer, and as part of the same
transaction confers any benefit on the owner of the property,
such owner must elect either to confirm such transfer or to
dissent from it, and in the latter case he shall relinquish the
benefits so conferred, and the benefits so relinquished shall
revert to the transferor or his representative as if it had not
been disposed off”

Example:-Where money is given to Jack and lieu of it Jack is required

to transfer his house to Patric, then Jack would not be allowed to retain
his house and also take the money, he cannot enjoy both, jack have to
choose either to take money in which case he must transfer his house
to Patrick or retain his house in which case he must relinquish the
benefit of money. Legal terms Jack shall be put to election.

According to section 35 of the TP act following elements are necessary

for the applicability of doctrine of election

!. Property to be transferred is not owned by the transferor.

@. In lieu of transfer benefit must be conferred on the owner.

A. Transfer and the benefit so conferred must form part of the same
transaction

B. Owners duty to elect

C. Making good the disappointed transferee.

The English doctrine of election rests on the principle of

compensation so if the transferee elects against the instrument, He
can keep his own property and also the benefit under the instrument
subject to compensating the disappointed Transferee out of the benefit
conferred to the extent of the value of property of which he had been
disappointed.
The Indian law of election is based on forfeiture so by electing against
the instrument the transferee incurs a forfeiture of benefit conferred
upon him and such benefit reverts to the transfer or his representative.
The transferor or his representative is liable to make good to the
disappointed transferring the amount or value of the property
attempted to be transferred to him in two specific cases

!. Where The transfer is gratuitous and the transfer has before the
election died
@. In all cases where transfer is for consideration

Implied election
In the following circumstances there is a presumption that owner has
knowingly except the benefit.

!. Where is the owner has enjoyed the benefit for 2 years without
doing any act of refusal or descent of the transaction.

@. Where the owner of property has exhausted or consumed the

benefit or any act which renders it impossible to place the parties
in the same position As before will be presumed to have accepted
the benefit.

Requisition to elect
There is a special procedure for expediting election.
After the expiry of 1 year if owner of the property does not elect i.e
neither confirms nor dissent to transfer.
the transferee may require him to make such election within reasonable
time After which he is deemed to have elected in favour of the transfer.
Section 41 -Transfer by Ostensible owner

An ostensible owner is one who has all the indications of ownership but
is not the real owner.
Jack during his lifetime held out his wife as the owner of certain
immovable property by taking the sale deed in her name with a recital
that purchase money was paid out of her stridhan .
After Jackʼs death his wife sold the property to defendant who
purchased it in Bona fired leave and for value. Jackʼs son As heir sued
to recover possession of the property from the defendant it was held
that he could not recover the possession .
The burden of proof whether transferor is ostensible owner lies in the
real owner of the property-(Raj ballar das v. Haripada das 1985)

The Supreme Court in union of India v. Mukesh builders and

financers AIR 1977. that the real test Is :-

!. What is the source of purchase Money

@. Motive behind giving the Benami colour
A. Possession of property
B. Who is enjoying the benefit of the property

Transfer by ostensible owner

Section 41 of the TP act provides that when ostensible owner transfers
the property for consideration will express or implied consent of such
real owner, the transfer should not be voidable on the ground that the
transfer was not authorised toMake it. This section is the nature of an
exception to the rule that a person cannot confer better title then he
had.
The general rule says that “no one can transfer a better title on
property then what he himself possesses”
The rule in this section is based upon the doctrine of a estoppel and
forms an exception to the rule mentioned above .

Conditions for the application of section 41:-

!. The transferor is an ostensible owner.

@. He is so by the consent, express or implied , of the real

owner(Gurucharan Singh v. Punjab electricity board Patiala AIR
1989)

A. Such transfer is for consideration

B. The transferee has acted in good faith taking reasonable care to a

certain the power of transferor. ( ram sunil kumar v. Thakur singh
1884)

This is also called the

Doctrine of holding out
it is the principle of natural equity, which must be universally applicable,
where one man allows another to hold himself out as the real owner of
an estate, and the third person purchases it for a value from the parent
owner in the believe that he is the real owner, the man who is so allows
the other to hold himself out shall not be permitted to recover upon his
secret title,

Unless he cannot prove that the purchaser by showing either that he

had direct notice or something which amount to constructive notice of
the real title.
By the virtue of Binami transaction act 1988 the law relating to
transfer by an ostensible owner has now been changed in India with
certain exceptions ostensible owners are now made real owners.

Section 43 -Doctrine of feeding the Grant by estoppel

section 43 of the transfer of property act states that the transferor is

precluded from denying the transfer on the ground that when he had
effected the transfer, he had no authority.
Thus ,he is estopped from denying the transfer made by him as an
unauthorised person. His estoppel is backed by his own earlier claim. It
is an equitable principle that one who makes certain promise without
any authority, must perform it when he subsequently acquires authority
to do so.

The principle is based on the common law doctrine of estoppel by deed

and partly on the principle of equitable doctrine that a man who has
promised more than he can perform must make good his contract when
he acquires the power of performance

Illustration:-
A and B are brothers who had separated from their father. A Sells to C
two fields F1 and F2 representing that he is authorised to transfer the
both of these fields but F2 does not belong to A, it having been
retained by B on partition,
But on Bʼs death A obtains F2.
C not having rescinded the contract of sale may require A to deliver F2
to him.
Section 52 -Transfer of Property pending suit relating
thereto

When there is a litigation between two person in regard to some

immovable property and one of them transfer the subject-matter of the
litigation, a conflict may arise between the right of the transferee and
the rights of the parties as declared by the decree of the court. Section
52 of  the Transfer of Property Act,1882 provides the doctrine of lis
pendens, i.e., ‘pending litigation.ʼ

Doctrine of Lis Pendens

The doctrine of lis pendens is expressed in the well-known

maxim; ‘pendente lite nihil innovatureʼwhich means ‘during
pendency of any suit regarding title of a property, any new
interest in respect of that property should not be created. The
effect of the applicability of the doctrine is that it does not annul the
conveyance, but only renders it subservient to the rights of the parties
to the litigation. The transferee will be bound by the result of the suit or
proceeding, whether or not he had notice of the suit or proceeding.

the doctrine states that- neither party to a litigation can alinate or

transfer his right in the property during the pendency of litigation so as
to affect the right of the adverse party .
The doctrine is based upon expediency and it is immaterial whether the
transferee pendente lite had or had not notice of the suit. This doctrine
had been fully expounded by the Privy Council in Faiyaz Hussain
Khan v. Prag Narain, (1907) 29 All 339 PC where their lordship
quote with approval the observations of Lord Justice Turner is Bellamyʼs
case.The rule of Lis pendens is based on the necessity for final
adjudication. It aims at the prevention of multiplicity of suits or
proceedings.

For applicability of the- doctrine, following conditions must be fulfilled:

● There must be pendency of a suit or proceeding.

● The suit or proceeding must be pending in a competent court

.
● The suit or proceeding must not be collusive.

● A right to immovable property must be directly and specifically in

question in that suit or proceeding.

● The property in dispute must be transferred or otherwise dealt with

by any party to the litigation.

● The alienation must effect the right of the other party.

In Mahendra Nath v. Parineswar, (1921) 60 IC 439, it was held that

if the complaint is insufficiently stamped and is rejected and it is then
again represented after making good the deficiency, a transfer between
the two dates of presentation would not br rejected under lis pendens

!. pendency of a suit
The pendency of the suit continue until the suit or proceeding has been
disposed of by a find decree or order and complete satisfaction or
discharge of such decree or order has been obtained or has become
unobtainable by reason of the expiration of any period of limitation
prescribed (Explanation).

@. Bona Fide Litigation

The suit or proceeding must not be collusive. A collusive suit is one in
which there is a fraudulent secret understanding between the plaintiff
and the defendant that the suit would not be contested with a view to
defeat the right of transferee of either parties.

A. Right to Property must be in Dispute

Right of an immovable property must be directly and specifically in
issue in the suit or proceeding, e.g., a suit on mortgage, for partition for
specific performance of a contract to transfer immovable property, etc.

B. Transfer by a Party to the Litigation

The property must be transferred or otherwise dealt with by any of the
parties to the suit or proceeding. Doctrine of lis pendens cannot extend
to person whose title is paramount to that of the parties to the suit, e.g.,
M grants a lease to N of certain land. N files a suit for ejectment against
O who is in wrongful possession of the land. During the pendency of
suit, M sells the land to P. The doctrine of lis pendens does not apply to
this sale by M to P.

C. Transfer must Effect the Other Party

In Sripal Snigh v Naresh, (1925) Pat 239, it was held that the doctrine is
not applicable where in the right of the transfer alone are affected and
not other party to the suit.

following suits have been regarded as to involve question of right in

immovable property in scope of section 52 of the act

!. A suit for partition (Chandsher Ghosh versus Madan Mohan

!.
Ghosh 1997)

@. The suit of Mortgage ( faiyaz hussain khan v. Prag narayan 1907)

A. Suit for pre-Emption (Mother Singh versus skinner 1941 )

B. Easement suit ( ramanama v. Kamla bai 1944)

C. Claims for maintenance by a Hindu widow

Exception
Section  provides that it is open to court to permit any party to the suit
to transfer the property to on  terms which  it may think fit to impose.
In Amarnath v. Deputy Director of Consolidation, AIR 1985 All 169
it was held that  party  is said to be party to the suit, if the decision or
judgement is likelt to affect the share of such a party and the decision
would be binding on him too. Thus A,B,C, are brother ;C is residing in a
distant town while A and B are residing together.  A files a suit for
partition and does not implead C or his father X. Though X and C are
not parties to the suit, yet the subject matter of suit is the same, and
neither X nor C legally and validly transfer or alienate his share to a third
party. In such case the ultimate decree is likely to affect the shares of X
and C too. Thus, there may be case where a party may not be locked in
a civil suit or proceeding; yet such a party may be affected by the
judgment/decree is such a suit.

Section 53-A Doctrine of Part Performance

Section 53A of the Transfer of Property Act embodies the doctrine of

part-Performance which reads as under:—
“Where any person contract to transfer for consideration any
immovable property by writing signed by him or on his behalf from
which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty, and the transferee has in part
performance of the contract, taken possession of the property or
any part thereof, or the transferee, being already in possession,
continues in possession in part performance of the contract and has
done some act in furtherance of the contract, and the transferee has
performed or is willing to perform his part of the contract, then
notwithstanding that the contract, though requires being registered,
has not been registered, or, where there is an instrument of transfer,
that the transfer has not been completed in the manner prescribed
therefor by the law for the time being in force, the transferor or any
person claiming under him shall be debarred from enforcing
against the transferee and person claiming under him any right in
respect of the property of which the transferee has taken or continued
in possession, other than a right expressly provided by the terms of the
contract:
Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of the
part performance thereof.”

For application of this doctrine of part-performance, it must be shown

that there is a contract to transfer for consideration immovable
property. The contract must be for consideration in Writing and singed
by the transferor, if there is no agreement or a void agreement, the
doctrine cannot be applied.
Further, the transfer should have taken possession of the property (or a
part thereof), or if he being already in possession should continue in
possession and should have done some act in furtherance of the
contract.
 pre-requisites for invoking the equitable doctrine of part
performance:

!. a contract to transfer immovable property

@. Transfer must be for consideration

A. transferee has possession of the property

B. the transferee has performed or is willing to perform his

part of the contract.

When these conditions are fulfilled the transferee is entitled to claim,

under this section, that he should not be dispossessed or evicted from
the property.by the of performace of his part of the contract.

SECTION 54- SALE OF IMMOVABLE PROPERTY

Section 54 of the Transfer of Property Act defines “Sale” as

“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 case of tangible

immovable property of the value of Rs. 100 rupees and
upwards or in the case of revision or other intangible things,
can be made only by 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 of by delivery of the property.
Delivery of tangible immovable property takes place when the seller
place the buyer or such person as he directs, in possession of the
property.”

 Essentials of a Valid Sale

According to Section 54, following are the essentials of a valid sale—

!. The parties of sale i.e., the seller and the purchase, must be
competent. . They must be competent to contract, they must of
sound mind and have attained the age of majority. The seller must
also have right to sell the property and purchase may be any
person not disqualified to purchase a property under any law
enforced in India.

@. A subject-matter of sale. Transfer of Property Act deals with sale

of immovable property. The transfer of ownership of immovable
property is dealt with  under this Act while sale of movable are dealt
with under the Sale of Goods Act, 1930.

A. Consideration—Price is an essential ingredient of a sale. A sale is

a transfer of ownership in exchange of money. Payment of price is
not necessary for    completion of the transfer but its reference is
necessary. It may be paid at the time of   execution or promised to
pay or same part of it may paid at the time of execution and rest
may be promised to be paid in future. consideration of transfer
a)must not be illegal , b) must not be against public policy

B. Conveyance—In sale, property must be transferred from seller to

purchaser. According to Section 54 there must be a registered
conveyance in the case of—
(a) tangible immovable property of the value of Rs. 100 and upwards; or
(b) a reversion of an intangible thing of any value.
In case of tangible immovable property of a value less than Rs. 100,
there must either be,
(a) a registered conveyance, or
(b) delivery of property.

Sale and Contract for Sale

Section 54 of the Act defines ‘saleʼ as a transfer of ownership in

exchange for a price Paid or promised or part paid and part promised.
Section 54 also defines ‘contract for saleʼ as, “a contract for the sale
of immovable property B a contract that a sale of such property shall
take place on terms settled between the parties,”

Thus a sale may be preceded by a contract for sale

A contract for sale is merely a document creating a right to obtain
another document namely, a duly executed sale deed.
a sale of immovable property is a transfer of ownership.

A sale passes an absolute interest in the property to the purchaser,

a contract for sale does not of itself create any interest in the
property,It does not convey any title to the purchaser.

A sale must be registered, if it deals with the conveyance of tangible

immovable property of the value of Rs. 100 or more, or a reversion or
any intangible things.
A contract for sale need not be registered at all.

Sale and Exchange

According to Section 54 of the Act, a sale is a transfer of ownership in
a property in exchange for a consideration.
exchange is a transfer of ownership in property in exchange of
ownership of another property.
Section 118 of the Act defines exchange as, “when two persons
mutually transfer the ownership of one thing for the ownership of
another, neither thing or both thing being money only, the transaction is
called exchange.
Thus in both, there is transfer of absolute interest in the property, but
real difference is that in sale, the consideration is money, whereas in
exchange, it is another property or anything of value.

Sale and Gift

In both sale and gift, there is transfer of ownership of an immovable
property. However the difference between the two is that where in sale,
the ownership is transferred in exchange for a price, in gift, the
immovable property is transferred with any consideration.
In sale, if the valuation of immovable property is Rs. 100 or more, than it
is to be effected only by registered instrument. But in case of a gift of
an immovable property, it must be made only by registered instrument
irrespective of the valuation of the property.

RIGHTS AND LIABILITIES OF SELLER AND BUYER

(SECTION 55)

RIGHTS OF SELLER
● Entitled to the rents and profits of the property till the
ownership thereof passes to the buyerʼ. ‘Thus, before completion of
the sale, the seller is entitled to all the rents, profits or another
benefit. interests of the propertyʼ. 

● Right to get interest on unpaid money -If after completion of

sale, price remains unpaid, the seller can claim back the possession
if already given to buyer, but he (seller) is given a right to recover
unpaid purchase money from and out of the property with interest.

DUTIES OF SELLER

● Duty to disclose defects-the seller is bound to disclose to the

buyer any material defect in the property or title, of which seller is,
and buyer is not aware, and which buyer could not with ordinary
case discover.

● Duty to provide document-The seller is bound to the buyer on

his request for examination of all documents of title relating to the
property which are in the sellerʼs possession or power.

● Duty to provide information-the seller is bound to answer to the

best of his information all relevant question put it him by him by the
buyer in respect to the property or the title there.

● Duty to execute the conveyance. He is bound on payment or

tender of the amount due in respect of the price, to execute a
proper conveyance of the property when the buyer tenders it to
him for execution at proper time of place.

● Duty to safeguard property and document till delivered

●

Seller is bound to take case of the property and documents of title.

Between the date of contract of sale and the delivery of the
property, he is bound to take as much case of the property and all
documents of title relating thereto which are in his possession as an
owner of ordinary prudence would take of such property and
documents.

● Duty to pay pending dues it is the sellerʼs duty before the

completion of sale to pay all the outgoings. Before completing of
sale, the seller continues to the owner of the property, thus the
Government dues, etc., are to be paid by him.

● Duty to deliver possession After completion of the sale, it is the

sellerʼs duty to gave possession to the buyer. The seller is bound to
give, on being so required, the buyer or such person as he directs,
such possession of the property as its nature admits.

● Duty to deliver title-deeds on receipt of the price. Section

55(3) of the Act provides that, where the whole of the purchase-
money has been paid to the seller, he is also bound to deliver to the
buyer all documents of title relating to the property which is in the
sellerʼs possession or power. However, he proviso to Section 55(3)
lays down that:

● Where the seller retains that part of the property with him, which of
greatest value and, such property is included in the documents, the
seller is entitled to retain all the documents with him.

● Where the whole of such property is sold to several buyers the

persons who purchase the largest part of the property would be
entitled to retain all the documents.
RIGHTS OF BUYER

Section 55(6) of Act provides that the buyer is entitled to (unless he

has improperly declined to accept delivery of property):

● A charge on the property for the purchase money properly paid by

him in anticipation of the delivery.
● Interest on such purchase money.
● The earnest, and cost awarded to him in a suit to compel
specific performance of the contract or to obtain a decree for its
recession in case he properly declines to accept

● After sale, entitled to the benefits of any improvement in, or

increase in value of, the property, and to the rents and profits
thereof, [Section 55(6)

DUTIES OF BUYER

● Duty of the buyer to disclose, facts which materially

increases the value of property, Section 55(5)(a) of the Act
provides that, "the buyer is bound to disclose to the seller any fact
as to the nature or extent of the sellerʼs interest in the property of
which the buyer is aware, but of which he has reason to believe that
the seller is not aware, and which materially increases the value of
such interest.

● Duty to pay or tender the purchase money to seller [Section 55(5)

● Duty to bear any loss arising from the destruction, injury or
decrease in value of the property not caused by the buyer

● Duty to pay the dues and outgoings, e.g., Government dues,

rents, revenue or taxes, as the buyer becomes the owner of the
property.