PROPERTY LAW 1

2 VIJAY LAW SERIES

CONTENTS
I. INDEX i-iii
II SHORT NOTES INDEX iv-v
III ESSAY QUESTIONS AND ANSWERS 1-94
IV SHORT NOTES 95-112
V DICTIONARY 113-116
VI IMPORTANT QUESTIONS 117
VII REFERENCE B OOKS 118

1 Introduction 1
2 Immovable property 3
3 Attestation 5
4 Actionable claim 6
5 Notice 7
6 Definition of Transfer of property 9
7 What property cannot be transferred 10
8 Oral transfers 11
9 Condition restraining alienation/Rule against inalienability 12
10 Condition restraining enjoyment/Repugnant conditions 14
11 Transfer for the benefit of unborn person 16
12 Rule against perpetuity 18
13 Direction for accumulation/Rule against accumulatin 20
14 Vented interest and contingent interest 21
15 Condition precedent and condition subsequent 23
16 Rule of acceleration 25
17 Doctrine of election 25
18 Apportionment 28
19 Covenants 29
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20 Ostensible owner/Doctrine of holding out 31

21 Doctrine of feeding the grant by estoppel 33
22 Priority of rights 35
23 Improvements made by bona fide holders under defective titles 38
24 Doctrine of lis pendence 40
25 Fraudulent transfers 42
26 Doctrine of part performance 44
27 Specific Transfers 46
28 Sale 46
29 Definition and essentials of sale 46
30 Rights and liabilities of buyer and seller 49
31 Unpaid vendor’s lien 51
32 Caveat emptor 53
33 Mortgage 54
34 Definiton and essentials of mortgage-its various forms 54
35 Rights and liabilities of mortgagor 57
36 Rights and liabilities of mortgagee 58
37 Doctrone of redemption 59
39 Clog on Redemption 63
40 Partial Redemption 64
41 Doctrine of consolidation 65
42 Right to Foreclosure or Sale 67
43 Substituted Security 68
44 Redeem up-foreclose down 69
45 Marshalling and contribution/Marshalling securities 71
46 Contribution 72
47 Subrogation/Legal subrogation/Conventional subrogation 73
48 Lease 75
49 Definition and essentials of lease 75
50 Rights and liabilities of lessor and lessee 76
51 Distinction between lease and licence. 78
52 Determination of lease/forfeiture of lease 78
53 Exchange of properties 80
54 Gift 81
Law of Easement

59 The Indian Easement Act,1882 86

60 Definition of easement/Kinds of easements 86&87
4 VIJAY LAW SERIES

Definition of
Transfer of Property
Section 5

D EFINITION OF TRANSFER: Transfer is a process or an

act by which something is made over to another. Transferor must
convey a right to the transferee. Transfer is also known as alienation.
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 trans-
fers, but lease and mortgage are the examples of limited transfers. The
fundamental rule of transfer is that a transfer must be made in the way
prescribe by the Act. The transfer governed by the Act must be reduced in
writing and if necessary it must be registered under the provisions of the
Indian Registration Act, 1908 and stamp duty must be paid in accordance
with the provisions of the Indian Stamp Act, 1899. The transaction, which
does not come under the purview of the Act, may be done orally and regis-
tration is also not necessary. Transfer of property is defined under Section
5 of the Act.
Transfer inter vivos: This Act deals with transfers inter vivos. It means it
deals with the transfers between living persons only. According to Section 5
living persons includes a company or association or body of individuals,
whether incorporated or not.
In Raghubar Singh v. Jai Indra Bahadur Singh 1919 46 IA 228 it was
held that 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. In
Ashrafi Devi v. Prem Chand AIR 1971 All 457 the Court held though an
idol is not a living person, it is a juristic person and capable of holding
property.
Analysis of Section 5:
1. There must be transfer between living persons only
2. There may be a transfer of property by a person to himself
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3. The transfer includes sale, mortgage, gift, lease and exchange

4. There may be transfer of absolute or limited interest
5. The Transfer may be made at present or future
6. The property must be in existence
7. The term living person includes non-natural persons too
8. The Act permits joint transfer and joint ownership
9. The transferor must convey a right to the transferee
What properties may be transferred? The transferor need not own
property so transferred. According to Section 5 of the Act, the following
properties may be transferred.
1. Tangible material things. e.g. land, house, car etc
2. Rights over material things.e.g. right to enjoy, right to sell etc
3. Rights which over non-material things. e.g. copy right etc.
What are not transfers? Conveying of the property involves the creation
of new title or interest in the transferee. If a new title or interest is not
conveyed there shall be no transfer. Therefore, according to Sec 5 of the
Act, the following instances are not transfers.
1. A surrender is not a transfer
2. A charge on the property
3. A relinquishment in favour of a coparcener
4. A family arrangement or in a settlement of doubtful claims
5. A partition in a joint Hindu family
6. An abandonment of a claim to property
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Shortnotes Index
Absolute restraint 97 Immovable property 103
Actionable Claim 97 Lease 104
Actual or Express notice 97 Legal subrogation 104
Affirmative/positive covenants 97 Licence 104
Anomalous mortgage 97 Marshalling 105
Apportionment 97 Mortgage 105
Attachments 98 Mortgage by conditional sale 105
Attestation 98 Notice 105
Binami transactions 98 Ostensible owner 106
Burden of proof 98 Partial foreclosure or sale 106
Caveat emptor 98 Partial Redemption 106
Clog on Redemption 99 Partial restraint 106
Condition precedent 99 Perpetuity period 107
Condition restraining alienation 99 Positive,Negative Easements 107
Condition restraining enjoyment 99 Prescription 107
Condition subsequent 99 Priority of Rights 107
Consent 100 Profits-a-pendre 108
Consideration 100 Redeem Up, foreclose down 108
Consolidation 100 Right of Redemption 108
Constructive or implied notice 100 Right to Foreclosure or Sale 109
Contract of sale 100 Rule against accumulation 109
Contribution.Doct. of 101 Rule against Double Possibility 109
Conventional subrogation 101 Rule against perpetuity 109
Covenant 101 Rule of apportionment by time 110
Defects in the title 101 Sale 110
Death bed gift 101 Simple mortgage 110
Doctrine of acquiescence 101 Spes successionis 110
Doctrine of Cypress 102 Subrogation 110
Doctrine of Election 102 Substituted Security 111
Doctrine of Lis Pendence 102 Transfer 111
Doctrine of Part Performance 102 Transfer inter vivos 111
Donatio mortis causa 103 Transfer of Property Act 111
Easement 103 Unpaid Vendor’s Lien 112
English mortgage 103 Usufructuary mortgage 112
Estoppel 103 Vested and contingent interest 112
Fixtures 103
Fraudulent transfers 103
PROPERTY LAW
Shortnotes
A
bsolute restraint:
If a condition takes
away the right to
transfer substan
tially, it is called abso-
lute restraint. A condition totally re-
straining alienation is void. e.g. A
transferred a house to B with a condi-
tion that if B sold it, he must sell it to
C only, and nobody else. Here there
is a chance to sell the house only to C,
but not to anybody in the world. Hence
this is absolute restraint.
Actionable Claim : a beneficial claim,
which can be recovered only by an
action in a Civil Court, is called ac-
tionable claim. In English law it is
known as chose in action or thing in
action. According to Section 3 of the
Transfer of Property Act, 1882 the
following are actionable claims: An
unsecured debt any beneficial interest
in movables not in possession of the
claimant, a claim which the Civil
Court recognise as affording grounds
for relief
Actual or Express notice : Bringing
the knowledge of a fact directly and
personally to the party is called actual
notice. It is a kind of notice whereby
a person acquires actual knowledge of
the fact.
Affirmative or positive covenants:
Covenants, which imposes an obliga-
tion for the performance of an act is
7
called affirmative, or positive cov-
enant. They are collateral. They bind
only the parties to the covenant and
not third parties. They are not annexed
to the land. They never run with the
land either in law or equity. They run
with persons. The assignees of the
land are not liable to comply the terms
of covenant.
Anomalous mortgage: Section 58(g):
A mortgage which is not a simple
mortgage, mortgage by conditional
sale, an usufructuary mortgage, an
English mortgage or a mortgage by
deposit of title-deeds, within the mean-
ing of this section is called anomalous
mortgage. It may be combination of
two or more forms of specific cat-
egories of mortgages. It does not fall
under any of the five classes men-
tioned under Section 58. e.g. a simple
mortgage usufructuary. This kind of
anomalous mortgage is a combination
of a simple mortgage and a usufruc-
tuary mortgage.
Apportionment: means sharing or
division of a common fund between
two or more claimants. When prop-
erty is transferred the transferee be-
comes entitled to get all its incidental
benefits, produce or income. Some
properties give periodical income such
as rents, annuities, dividends and other
periodical payments. In such case the
question of apportionment of
8 VIJAY LAW SERIES
Dictionary
Abandonment:rejection, neglect
Absolute estate: definite property
Absolute interest: perfect advantage
Absolute restraint:perfect limitation
Absolute right: perfect claim
Absolute: perfect, final
Absolutely: unconditionally
Abstains: refrains
Acceleration: increasing speed
Accruing: improving
Accumulate: collect in one place
Accumulation: additional increase
Acknowledgement: recognition
Actionable claim: beneficial right
Affirmative: positive
Alienate: transfer
Alienation: transferring
Allowance: payment
Amend: alter, modify
Annexation: uniting
Annexed: take possession of
Antagonistic: aggressive, hostile
Apparent: clear, obvious
Apportionment: distribution
Approbate: approve, sanction
Assign: allocate, appoint
Assignees: allocatees
Attachment: accessory, addition
Attestation: verification
Bare chance: marginal possibility
Basis: foundation, source
Beneficial interest: useful benefit
Bequest: give, gift
Binami transactions: fake deals
Binami transfers: conveyances
Caveat emptor: let buyer beware
Ceases: ends, stops
Certifying: authorising officially
Claimants: applicants
Clog: block
Code: set of rules or law
Complied with: followed perfectly
Comply: follow, abide by
Comprehensive: including all
Conclusive: decisive
Conferment: an act of granting
Conflict: clash, fight
Conforming: be in line with
Consideration:something in return
Considered: regarded
Contemplate: look at  thoughtfully
Contingency: a possible event
Contingent: uncertain to occur
Contrary to law: against law
Contravene: go against rules
Convey: pass on
Conveyance: transfer
Conveyed: transferred
Covenant: agreement
Coverture: married woman
Creditor: money lender
Debt: loan, financial liability
Debtor: borrower
Decree: legally binding command
Devised: give property by will
Disposition: getting rid of
Distinction: differences
Donor: person who makes gift
Ejected: expel from a place
Encumbrances: burdens
Engagement: involvement
Entitled: give the right to
Equitable principles: just rules
Equity of redemption: act of
PROPERTY LAW 9

Reference Books

Author Title, Edition, Publisher and Place

Jain.J.D Easement Act

3rd Edition Allahabad Agency
Maheswara Swamy .N Law Relating to Transfer of Property
1st Edition 2008 Asia Law House,
Hyderabad.
Mulla Transfer of Property Act
1999 Universal, Delhi
Narayana Justice P.S Law of Easements and Licences
5th Edition 2004
Asia Law House Hyderabad
Sarathy.V.P Transfer of Property
1995 Eastern,Lucknow
Shukla S.N Tranfer of Property Act
4th Edition Allahabad Agency
Singh.A Text Book on The Transfer of
Property Act
5th Edition Central Law Agency
Sinha.R.K The Transfer of Property Act
Ninth Edition, 2006
Central Law Agency, Allahabad
Subbarao Transfer of Property Act
1994 Madras .
Tewari. H.N Tranfer of Property Act
2nd Edition Allahabad Agency