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Paper : LB - 204 - Property Law
Before the advent of the Britishers, each community in India was governed by its respective customary law in matters relating to transfer of property. With the establishment of the formal litigative system and in absence of any legislation in this area, to begin with, the English judges applied the common law of England and the rules of equity, justice and good conscience with respect to disputes relating to transfer of property. The unsuitability of these provisions to the Indian conditions; the resulting conflict and the need for clarity of rules relating to this important branch of law necessitated the enactment of a legislation. Drafted in 1870, the Transfer of Property Act saw the light of the day in 1882 and provided the basic principles for transfer of both movable and immovable properties. Based primarily on the English law of ‘Real Property’, it attempted to mould these principles to suit the Indian conditions; but certain provisions of the Act remained inapplicable to Hindus and Muslims, to start with. In order to put at rest the confusion created by the conflicting decisions and extend the application of the Act in totality to Hindus, the Transfer of Property Act, 1882 was amended in 1929. However, till date, the provisions of Chapter II of the Act that are inconsistent with the Quranic laws are inapplicable to Muslims. Moreover, a separate enactment titled the ‘Sale of Goods Act, 1930’ was passed to deal with transfer of movable property by sale. The Transfer of Property Act, 1882 contains the general principles of transfer of property and detailed rules with respect to specific transfer of immovable property by sale, exchange, mortgage, lease and gift. The present course will cover a study of important terms relevant to transfer of property, meaning of ‘transfer’ under the Act, general principles relating to transfer of property and definitions and rules relating to specific transfers of immovable properties by mortgage, lease and gift. Prescribed Legislation: The Transfer of Property Act, 1882. Prescribed Books: 1. Solil Paul (Rev.), Mulla’s The Transfer of Property Act (9th ed. 1999) 2. Poonam Saxena, ‘Property and Easement’, Halsbury Laws of India; Vol. 12 (2002). 3. Poonam Pradhan Saxena, Property Law (2006) 4. Vepa. P. Sarathi (Rev.) G.C.V. Subba Rao’s Law of Transfer of Property (3rd ed., 2002) 5. Sen Gupta (Rev.), Mitra’s Transfer of Property Act (18th ed., 2004) 6. S.M. Lahiri, Transfer of Property Act (10th ed., 1986)
Topic 1 - Movable / Immovable Property (Sec. 3) Concept of property; Definition of and distinction between movable and immovable property; Meaning of “things attached to earth” and Concept of “Doctrine of fixtures” 1. 2. 3. 4. Shantabai v. State of Bombay, AIR 1958 SC 532 : (1959) SCR 265 State of Orissa v. Titaghur Paper Mills Company Limited, AIR 1985 SC 1293 : (1985) Supp SCC 280 Bamdev Panigrahi v. Monorama Raj, AIR 1974 AP 226 Duncans Industries Ltd. v. State of U.P. (2000)1 SCC 633 Topic 2 – Attestation (Sec. 3) Importance of attestation; who may be a competent witness; mode of attestation; attestation by a Pardanashin woman 5. 6. 7. Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, AIR 1965 SC 1738 : (1966) 1 SCR 153 M.L .Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147 : (1969) 1 SCC 573 Padarath Halwai v. Ram Narain, AIR 1915 PC 21 Topic 3 - Notice (Sec. 3) Relevance of doctrine of Notice; Actual and Constructive Notice; Wilful abstention from making an inquiry and gross negligence; Actual Possession; Registration and Notice to agent as Constructive Notice 8. 9. 10. 11. Ahmedabad Municipal Corporation v. Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201 ; (1971) 1 SCC 757 Md. Mustafa v. Haji Md. Isa, AIR 1987 Pat 5 H.N.Narayanaswamy Naidu v. Deveeramma, AIR 1981 Kant 93 Ram Niwas v. Bano, AIR 2000 SC 2921 : (2000) 6 SCC 685 Topic 4 - Meaning of Transfer of Property (Sec. 5) Meaning of ‘Transfer of Property’ under the Act; Transfer intervivos; Living person distinguished from juristic person; Status of partition of joint family property 12. 13. 14. 15. V.N. Sarin v. Ajit Kumar Poplai, AIR 1966 SC 432 : (1966) 1 SCR 349 Kenneth Solomon v. Dan Singh Bawa, AIR 1986 Del 1 Mohar Singh v. Devi Charan, AIR 1988 SC 1365 : (1988) 3 SCC 63 N. Ramaiah v. Nagaraj S, AIR 2001 Kant. 395 1 7 28 36
42 44 49
50 58 64 67
71 76 80 83
Topic 5 - What Kind of Property can be transferred (Secs. 6(a) and 43) Transfer of “Spes Successionis”; Transfer by heir apparent; Chance of a relation obtaining a legacy on the death of a kinsman; Comparison with fraudulent and erroneous unauthorized transfers; Doctrine of “Feeding the grant by estoppel”; Status of bonafide transferee for consideration and without notice 16. 17. Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847: 1962 Supp (1) SCR 554 Kartar Singh v. Harbans Kaur (1994) 4 SCC 730 Topic 6 – Conditional Transfer (Secs. 10 and 11) Transfers subject to a condition or limitation; Absolute and partial restraints on transfer; Exception in case of lease and married women; Restrictions repugnant to interests created; General principles; Restrictions for beneficial enjoyment of one’s own land; Positive and negative covenants 18. 19. 20. 21. 22. 23. Rosher v. Rosher (1884) 26 Ch D 801 Muhammad Raza v. Abbas Bandi Bibi, (1932) I.A. 236 Manohar Shivram Swami v. Mahadeo Guruling Swamy, AIR 1988 Bom 116 Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-op. Societies (Urban) (2005) 5 SCC 632 K. Muniswamy v. K. Venkataswamy, AIR 2001 Kant. 246 Tulk v. Moxhay (1848) 2 Ch. 774 96 98 103 105 115 119
Topic 7 - Transfer for the benefit of unborn persons (Secs. 13-18) Creation of prior interests and absolute interests in favour of unborn persons; Rule against perpetuity; Period of perpetuity; Rule of possible and actual events; Transfer to a class; Transfer when prior interest fails; Directions for accumulation of income; Exceptions 24. 25. 26. Ram Newaz v. Nankoo, AIR 1926 All 283 Ram Baran v. Ram Mohit, AIR 1967 SC 744 : (1967) 1 SCR 293 R. Kempraj v. Burton Son & Co, AIR 1970 SC 1872 : (1969) 2 SCC 594 Topic 8 - Vested and Contingent interests (Secs. 19 and 21) Definition of and distinction between vested and contingent interests 27. Rajeh Kanta Roy v. Shanti Debi, AIR 1957 SC 255 : 1957 SCR 77 131 121 122 128
Topic 9 - Transfer during pendency of litigation (Sec. 52) Concept of “Lis Pendens”, Meaning of proceedings; Collusive suits; Commencement and conclusion of suits; Specific rights in specific immovable property; Voluntary and involuntary alienations 28. 29. 30. 31. 32. Jayaram Mudaliar v. Ayyaswamy, AIR 1973 SC 569 : (1972) 2 SCC 200 Supreme General Films Exchange Ltd v. Maharaja Sir Brijnath Singhji Deo, AIR 1975 SC 1810 : (1975) 2 SCC 530 Govinda Pillai Gopala Pillai v. Aiyyappan Krishnan, AIR 1957 Ker. 10 Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee, AIR 1992 Ori. 47 Dalip Kaur v. Jeewan Ram, AIR 1996 P & H 158 Topic 10 - Mortgage (Secs. 58-60, 100) Definition of Mortgage; Kinds of mortgages; Mode of execution of mortgages; Redemption and Foreclosure of mortgages; Clog on equity of redemption; Distinction between mortgage and charge 33. 34. 35. 36. Ganga Dhar v. Shankar Lal, AIR 1958 SC 770 Pomal Kanji Govindji v. Vrajlal Karsandas Purohit, AIR 1989 SC 436 : (1989) 1 SCC 458 Shivdev Singh v. Sucha Singh, AIR 2000 SC 1935 : (2000) 4 SCC 326 Sangar Gagu Dhula v. Shah Laxmiben Tejshi, AIR 2001 Guj. 329 161 167 179 185
140 147 149 154 159
Topic 11 - Lease and License (Secs. 105, 106 and Indian Easement Act, 1882 Sec. 52) Definition of lease; Absolute and derivative lease; Lease for a specific time; Periodic lease and lease in perpetuity; Distinction between lease and license 37. 38. 39. 40. 41. Associated Hotels of India v. R.N. Kapoor, AIR 1959 SC 1262 Quality Cut Pieces v. M. Laxmi, AIR 1986 Bom 359 B.V. D’Souza v. Antonio Fausto Fernandes, AIR 1989 SC 1816 Samir Kumar Chatterjee v. Hirendra Nath Ghosh, AIR 1992 Cal 129 Delta International ltd. v. Shyam Sunder Ganeriwalla, AIR 1999 SC 2607 193 204 213 216 223
Topic 12 - Gift (Secs. 122-126) Definition of gift; Mode of execution of gift; Suspension and Revocation of gifts 42. 43. Tila Bewa v. Mana Bewa, AIR 1962 Ori. 130 Kartari v. Kewal Krishan, AIR 1972 HP 117 236 240
IMPORTANT NOTE: 1. The students are advised to read only the books prescribed above along with legislations and cases. 2. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 3. The students are required to study the legislations as amended up-to-date and consult the latest editions of books. 4. The Question Paper shall include one compulsory question consisting of five parts out of which four parts will be required to be attempted. The question papers set for the academic years 2007-08 and 2008-09 are printed below for guidance.
LL.B. II Term Examinations, April-May, 2008
Note: Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) Define “Actionable Claim” and give illustrations of the same. (b) Discuss the essentials of a valid gift under the TPA. (c) Explain “Doctrine of Part Performance” and state the effect of amendment in the concept made in 2001. (d) Explain the meaning of “transfer of property” under the TPA. (e) Discuss the essentials of a valid attestation under the TPA. 2. (a) Distinguish between a standing timber and a timber tree. A is the owner of an estate that has only timber trees in various stages of growth. Under a contract, he confers a right in favour of B to enter the forest and cut only standing timber. The right is spread over a period of twenty years. (b) Explain Doctrine of fixtures. 3. (a) A transfers a house to B to be enjoyed by B during his life time and then the property is to vest in the first born child of B when such child attains the age of 21 years. The deed also provides that if B does not have a child or such child dies before attainment of the age of 21 years, the property would go to B’s younger brother C. B got married
and his child died at the age of 20 years. C now wants the possession of the house. Will he succeed? Discuss in light of the legal provisions. (b) A transfers his house to B (who was unmarried on the day of the transfer) for life and after him the property is to vest in the children of B, in the following manner: B’s daughters would take half of the total property for their life and after them, the property would go to their children absolutely. The sons of B would take the other half of the property absolutely. Discuss the status of these transfers. 4. A’s friend B, who was new to the town had no place to live. A permitted him to occupy his house till he could find an alternative suitable accommodation. A came to know that B was trying to sell this property. Alarmed, A goes to the court and files a suit against B for declaration of title and recovery of possession. Three days prior to the filing of the suit, without the knowledge of A, B sold this house to C for a consideration of Rs. 20 lakhs. The case is decided in A’s favour. Meanwhile while the litigation was pending, C, who considered himself to be the bonafide owner, donated the house for the purposes of running an orphanage. A now files a suit for eviction against the orphanage. Will he succeed? Discuss in light of the doctrine of Lis Pendens. 5. (a) A group of Maharashtrians, living in Delhi, acquire land for the “Maharashtrian Group Housing Society”. The rules of the society prohibited the sale of any flat by a member to a non-Maharashtrian. It also provided that if any member contravenes this requirement, the sale by him in favour of a non-Maharashtrian would be void. Discuss the validity of the rule in light of the legal provisions of TPA. (b) Discuss the validity of the conditions directing the transferee to use the property that is the subject-matter of transfer in a specific manner. 6. Distinguish between “Spes Successionis” and the rule of “Feeding the Grant by Estoppel”. H was going on a ship from Russia to Istanbul. The ship disappeared on the high seas and no information could be gathered about H. After six years, H’s widow W, thinking him to be dead, executed a sale deed of his house in favour of B for a consideration of Rs. 20 Lakhs. She however failed to deliver the possession of the property to him. B waited and after one year, he filed a suit in a court of law requiring W to deliver the possession of the property to him. Will he succeed? Discuss in light of the legal provisions and precedents. 7. (a) Explain Registration as Constructive Notice. (b) A gave his house to B on rent for a period of five years. At the end of five years, he sold the house to B and started living in the same house as the tenant of B. A later, once again sold the property to C without disclosing the fact that it was already sold to B. After the completion of the sale, A vacated the house and C started renovation work in it. B objected and took possession of the property. C asked B to hand over the possession to him and upon his failure to do so, filed a suit for eviction against B. B wants to take the benefit of the doctrine “actual possession as constructive notice”. Will he succeed? Discuss.
8. Define clog on equity of redemption. A mortgaged his house to B for securing a loan of Rs. 20,000. It was usufructory mortgage and the mortgage deed contained three clauses: (a) A was prohibited from redeeming his property for an initial period of thirty years so as to allow B undisturbed possession of the house. (b) After the expiry of thirty years from the date of execution of the mortgage, A must redeem the property within a period of one year, failing which he would lose the right of redemption forever and B would become the owner of the house. (c) If A redeems the mortgage within one year after the expiry of thirty years from the date of the execution of mortgage, B would have the option to stay in the house of A as his tenant although after paying market rent for a period of another twenty years. Discuss the validity of the above conditions. ***** LL.B. II Term (Supplementary), Aug.-Sept., 2008 Note: Answer any five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) State the distinction between Standing Timber and a Timber Tree. (b) Registration as constructive notice. (c) Concept of Actionable claim. (d) Essentials of a valid attestation. (e) Meaning of transfer within the meaning of Sec. 5 of the Transfer of Property Act, 1882. 2. Discuss the concept of Doctrine of fixtures. A, the owner of a vacant piece of land, purchased a pump and pipes from B on hire purchase basis. The terms of agreement clearly specified that A was to pay the total money in twelve equal installments and till the money was paid, the ownership in these chattels would not pass on to A. A took the pump and the pipes and installed them in the land with the help of concrete and cement foundations. The pipes went deep into the earth. A paid the first installment and then sold the land to C and failed to pay the rest of the installments to B. B wants to enter the land now in possession of C and recover his property. Can he do so? Discuss in light of relevant legislation and judicial precedents. 3. Explain the phrase absolute restraint on power of alienation. A sold his house to B subject to the condition that B would not sell it for an initial period of two years as A wanted to arrange the money and buy it himself. The condition further provided that if B wanted to sell the property after two years, he was free to sell it to any one but must charge only market price from the buyer. A violation of these
conditions would result in the forfeiture of the present sale. Discuss the validity of these conditions in light of the provisions of the Transfer of Property Act, 1882. 4. How can a transfer be effected validly for the benefit of unborn persons. A transferred the property for life to his eldest unmarried son S and then the property was to go to S’s eldest daughter when she would attain the age of 20 years. The deed also provided that if D died without attaining the age of 20 years, the property would go absolutely to S’s wife SW. S married SW but D was never born. SW claims the property. Can she get it? Discuss. 5. Explain the primary distinction between spes successionis and the doctrine of feeding the grant by estoppel. A’s father was sick and in order to meet the medical expenses. A sold his father’s property to a family friend, X. Two days later, father died, but S who had taken consideration from X, refused to hand him over the possession of the property. X files a suit for recovery of possession. Will he succeed? Discuss. 6. Explain doctrine of lis pendens. Can the transferee pendente lite be added as a party to the main litigation involving the suit property. 7. What is a clog on equity of redemption? A executes a mortgage in favour of B. The deed provided that A would be entitled to redeem the property only within six month after 99 years, failing which he would lose the right of redemption. Discuss the validity of such a condition. 8. Write short notes on any two of the following: (i) Essentials of a valid gift under the TPA (ii) Actual possession as constructive notice (iii) Distinction between vested and contingent interest. ***** LL.B. II Term Examinations, April-May, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (a) Meaning of ‘animo attestandi’ (b) Does partition of joint family property amount to transfer? (c) Distinguish between vested and contingent interests. (d) Explain Registration as Constructive Notice. (e) Explain the essentials of a valid gift. 2. (a) Distinguish between a ‘Standing Timber and a Timber Tree’. (b) Explain the Doctrine of Fixtures and discuss whether the following are movable or immovable properties: (i) A right to catch fish in a lake for a period of 5 years.
(ii) A tube light fixed by the owner of the house in his room. (iii) Machinery fixed to earth with the help of cement foundations to prevent it from shaking. 3. (a) Discuss the concept of ‘Actual and Constructive Notice’. (b) ‘A’ transferred his property in 1955 to ‘B’ for life, then to his daughter ‘D’ for life and then to B’s such daughter, ‘BD’ who should first attain the age of 16 years. In case ‘B’ is not blessed with the daughter, the property would go absolutely to B’s unborn son ‘BS’. ‘B’ was blessed only with a son and had no daughter. ‘BS’ laid claim over the property. Will be succeed? Discuss, citing relevant case Law. 4. What do you understand by ‘spes successionis’? To what extent the concept of ‘spes successionis’ is similar or dissimilar to the rule of feeding the grant by estoppel under S.43 of the Transfer of Property Act, 1882. 5. (a) Explain the phrase ‘restriction repugnant to interest created’. (b) ‘A’ sold his shop to ‘B’ subject to the condition that he would not resell it to anyone except A’s family members and that too only at the contractual price agreed between ‘A’ and ‘B’. In case of violation of the conditions stipulated, the sale would be forfeited. ‘B’ sells the shop to ‘C’ at market price. Are the conditions imposed by ‘A’ valid? Discuss in the light of provisions of the Transfer of Property Act, 1882. 6. (a) “During litigation, nothing new should be introduced.” Examine critically the basis of this doctrine. (b) There was a property dispute between ‘A’ and ‘B’. ‘A’ filed a suit against ‘B’ in court. The court had pecuniary jurisdiction for suits upto Rs. 1,000 in value. The court after valuation returned the plaint as the suit was found to be beyond its pecuniary jurisdiction. Before ‘A’ could file the suit in the competent court, ‘B’ sold the property to ‘P’. Will the sale of property to ‘P’ be hit by the doctrine of lispendens? 7. (a) Define ‘Mortgage’ and discuss various kinds of Mortgages contemplated U/S. 58 of the Transfer of Property Act, 1882. (b) “The light of redemption available to a mortgagor is a statutory right which cannot be fettered by any condition which impedes or prevents redemption.” Examine the above statement critically with the help of decided cases. 8. (a) There is a marked distinction between a lease and a licence, though the dividing line between the two sometimes becomes very thin or blurred. And to ascertain whether a document creates a lease or a licence, the test of exclusive possession has proved to be fallible and given way to other criteria. Discuss. *****
LL.B. II Term (Supplementary) Examinations, July-August, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.
1. Attempt briefly any four of the following: (i) Distinguish between vested and contingent interest. (ii) Explain registration as constructive notice. (iii) Explain profits-e-pendre. (iv) Explain rule against perpetuity. (v) Explain essential conditions relating to validity of a gift. 2. Explain Doctrine of fixtures and determine the character of the following properties: (i) Machinery fixed to the ground in a factory with the help of nuts and bolts to prevent it from shaking when it is put into operation. (ii) Pumps and the pipes that are embedded in the earth with the help of cement foundations to draw water fixed by the owner of the land. 3. (i) Critically comment on the following statement. “The requirement of law is not that the document should bear the signatures of two or more persons but that it should be attested by two or more competent witnesses.” (ii) How is transfer of property defined under the Transfer of Property Act, 1882? Can the partition of a Hindu Joint Family be called a transfer of property within the meaning of the Transfer of Property Act, 1882? 4. Discuss the rule of spes successionis and compare and contrast it with the rule of Feeding the grant by estoppel. A, whose father was very ill, sold the property to X who was a family friend with a clear understanding that the possession of property would be delivered only on the death of the father or if the father gets better. X gave the consideration which A used for the benefit of his father and the father was saved. However, the father refused to deliver the possession of the property to X on the ground that he does not propose to sell the property at all. Two months later, the father died and A inherited the property and became its owner but again refused to hand over possession of the property to X. X goes to the court for specific performance of the contract. Will he succeed? Discuss. 5. Discuss restraints on alienations and decide the following in light judicial precedents: (i) A sells his house to B with a condition that he would not sell it for a period of ten years. After ten years, he could sell the house only at the market price but to a person from the religious community of A only. Ignoring these conditions, B donated the house to an orphanage after two years. A files a suit for cancellation of sale. Will he be successful? (ii) A sells half of the land adjoining his house to B with a direction that he would leave an open space of six feet on the left side of the land by not carrying any construction so that air and light of A’s house is not adversely affected. B, however,
started construction on the entire land in violation of the conditions in the transfer deed. A goes to the court and wants an injunction from the court restraining B from building on the entire land. Will he be successful? 6. Explain doctrine of Lis pendens. In 1960, A who was a member of a Hindu Joint Family asked for partition from his father. Upon refusal of the father, he filed a suit for partition against father. The father was asked by the court to provide a list of joint family properties and the members. When the list was produced before the court, A objected to the same on the ground that some of the properties were left out from the list. The father agreed to it and asked for an extension of one month from the court so that an amended and correct list could be provided and the same was granted by the court. However, two days later, the father sold the properties that he had earlier excluded from the list. Will the sale be hit by the rule of lis pendens? Discuss. 7. A mortgages his house to B subject to a condition that he would not redeem the property for a period of ten years. After ten years, he could redeem the property only within a period of one year failing which he would lose the right to redeem the property forever. However, if he redeems the property within the stipulated time, B would have a right to stay in this house as a tenant of A for a period of 25 years. Discuss the validity of these conditions in the light of Sec. 60 of the Transfer of property Act, 1882. 8. Distinguish between a lease and a licence and decide whether the following would constitute a lease or a licence. A grants a right to B to use the roof of his house for putting an advertisement hoarding. The use of the roof could not be changed at the discretion of B, but could be done after consultation with A. It was also provided that should A or B die, the agreement would continue and the right would be inherited by B’s descendants. *****
LL.B. II Term
Cases Selected and Edited by
Poonam Saxena Kiran Gupta K.R. Sharma
FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI-110007
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