Scribd Logo
Upload

Welcome to Scribd!

  • Law of Property and Easement.

    Uploaded by

    jai rakshita
    30 views138 pages

    Original Title

    law of property and Easement.

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    30 views138 pages

    Law of Property and Easement.

    Uploaded by

    jai rakshita

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 138
    Scanned with CamScanner PATTERN U. Note: Three types of Questions would be asked in examination papers according to the latest U.G.C. Pattern. Section ‘A’ contains descriptive, Section *B" con- tains short and Section *C” contains very short-answer questions. Questions pertaining to Sections ‘A’ & “B" are given inside the Unique Law Series Ques. & Ans.. However, questions pertaining to Section ‘C’ are hereby at with the hook to make it up-to-date and compatible with the latest pattern of LL.B. Examinations, UNIQUE LAW SERIES INDISPENSABLE for ALL LAW EXAMS: Publisher's Note: Although due care has been taken in publishing this book, yet the authors, publishers and printer's will not be liable for any mistake that ‘may have inadvertently crept in. Any mistake noted may be brought to our notice which shall be taken care in the next edition. Laser Type Setting By— VIMLA COMPUTERS 185/1, Rajender Nagar, Meerut. NITIN PRAKASHAN (Opp-R.G. (P.G.) College on W.K. Road,’Meerut) Ph. (O) 2664636, (R) 2670771. a Scanned with CamScanner | | Very Short-Answer Questions i Q-1. What is the scope and object of the Transfer of Property Act, | 882} “Ans. Scope and Object of the Act : The scope of this Act is limited to th, transfér of property by act of parties as distinguished from a transfer by operation of law. e.g., in case of insolvency, forfeitur¢ or sale on execution o a decree. For instance, if A agrees to sell his land to B, the transaction will b¢ governed by the Act. But, if B, purchases the land of A, at the auctiorf-sale held by the Court in execution of a decree againat A, the transfer of the land t¢ B takes effect by operation of law. and none of the provisions of the Ac requiring the transfer to be effected in a particular way, e.g. by a registere document, shall apply to it. The Act relates to the trasfer of property inte vivos and has no application to disposed of property by will, nor does it de With eases of succession. Crown grants are exempted from the operation the Act by S. 2 of the Crown Grant Act, 1895 and the Act does not apply t transfers made by or on behalf of the Government. e Q.2Whether the Transfer of Property Act, 1882 i exhaustive? ‘fs. Act not Exhaustive: The Transfer of Property Act is not exhaustive The Preamble of the Act suggests that it simply defines and amends certait parts of the law relating to transfer of property by act of parties, and, therefore} ft does not at all profess to be an exhaustive enactment. Had it been otherwise] the word ‘consolidate’ would also have appeared in the Preamble. e . What do you mean by “Immovable property"? ns. According to S. 3, in this Act, unless there is something repugnai in the subject or context.—“ Immovable property”— does not include standi timber, growing crops or grass; The negative definition of Transfer of Prope! Act and positive definition of General Clauses Act taken together succeed i “giving an idea of the immovable property as follows : The term includes thre things—land, benefits to arise out of land, things attached to earth. It exclude: three things—standing timber, growing crops and grass. The definition m: thus be, immovable property includes land, benefits arising out of land, and) things attached to earth, except standing timber, growing crops and grass. Q. 4. Whether standing timbers are immovable property? + Ans. Standing Timber—Timber” means a tree that is chiefly meant to be used either for building or for burning purposes. Ordinarily, all trees standing on the earth living, growing and flourishing are immovable property. To this| general statement, Transfer of Property Act provides an exception. Standing timbers are not immovable property . 7 ° SES. Give some examples of tmmovable property. Ans. (i) A jalkar right. Gi) The equity of redemption. (iii) A right of ferry. (iv) Right and interests of a grove-holder in a grove. (v) A right to way and | earth before separation from the soil. (vi) A right of easement. ( Advertisement hoardings fixed in the substantial manner inthe land e Q. 6. Give some examples of what are not immovable property? Ans. (i) Right of worship. (ii) Right of purchaser to have lands registered | in his name. (iii) A machinery which is not permanently attached to the earth and which can be shifted from one place to another. (iv) A decree for sale of immovable property on a mortgage. (v) Royalty. (vi) Right to reco maintenance allowance even though charged on immovable property and (vii) | Scanned with CamScanner 3 “Unique, 30 Questions anid Answers Government Promissory Notes etc. 7 e Q. 7: What do you mean by attestation? Ans. S. 3 says that “Attested” in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each $f whoni 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 Scknowledgment, 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 Peecutant; but it shall not be necessary that more than one of such witnesses Shall have been present at the same time, and no particular form of attestation ~ e shall be necessary; Q. 8. What is the difference between Indian and English Law on attestation? 7 ‘Ans. In English law attestation implies that the attesting witness was present at execution and can testify that the deed was executed voluntarily by the proper person. The definition of attestation in S. 3 of the Transfer of Property Act, makes a two-fold departure from the English law. According to the English law : (i) both witnesses should be present at the same time; and Gi they should actually see the execution of the instrument. In India it is not necessary that both the attestators should be present at the same time or see the actual execution of the document. e Q. 9. What are the essentials of a valid attestation? Ans. (1) Definition U/S. 3 is confined to only to non-testamentary instrument. It will not apply to will etc. (2) Minimum two attesting witnesses are needed. Maximum is not mentioned. (3) Three modes of attestation are recognised e.g.,—{i) Each sees the executant signing or fixing mark, or (ii) Each Sees some other person signing in the presence, any by the direction of the executtant. or (iii) Each has received from the executant the personal acknowledgement (a) of executant, sign (b) of Executant’s mark (c) sign of one who signed-for the executant in his presence and by his direction. 4. Each witness signs the instrument in presence of executant. 5. Presence of both or all attesting witnesses one and at the same time is not essential. 6. No particular - from of attestation is prescribed. e Q. 10. What do you mean by actionable claim? Ais. S. 3 defines “actionable claim” to be a claim—{i) to any debt other than a debt (a) secured by mortgage of immovable property, or (b) by hypothccation or pledge off: (ii) or. to any beneficial interest in movables; not possession (a) actual, or (b) constructive of the claimant: (iii) which the Courts recognise as affording grounds for relief, whether such debt or conditional or contingent. e fal interest be existenf, accrui Q. 11. Give some of the examples of actionable claims. Ans, The following have judicially been held to be actionable claims— @ Claim for arrears of rent, (b) A claim for rent to fall due in future for it is an accruing debt within the meaning of the definition. (c) The benefit of an sexecutory contract for the purpose of zoods is a ‘beneficial interest in movable property.” (d) A right to get by divisions a piece of.Jand reserved by a donor for his own use in his deed of gift but possession of which was with the donee. | (e) A share in partnership. (f) The right to recover the arrears of an annuity Scanned with CamScanner SS Property Law and Easement 4 though it be charged upon immovable property. (g) A right to receive money for licence given to another to remove skin from the licensor’s trees. (h) Where there is a completed contract its:benefit can be assigned. The benefit of contract for sale and purchase of immovable property may also be assigned, ° Q. 12. What are the hinds of notice? Ans. The Transfer of Property Act contemplates three namely : (i) actual notice: ds of notice, ) constructive or implied notice (.e., when but for wilful abstention from inquiry or search or for gross negligence he would have known); and (iii) notice to agent or imputed notice Q. 13. What do you mean by “actual no! e 3 Ans. Actual Notice : Actual notice, to constitute a binding force, must be definite information given by a person interested i the thing in respect of which the notice is issued, as it is settled rule that a person is not bound to? attend to vague rumours of statements by mere strangers, and that a notice to. be binding must proceed from some person interested in the thi e 'Q. 14. What do you mean by a “Constructive notice”? ‘Ans. Construciive Notice : Constructive notice is the knowledge which the Courts impute to 2 party upon a presumption so strony that it cannot be allowed to be rebutied, that knowledge must have been communicated. @ ‘Q. 15. What are the classes of constructive notice? Ans. The broad principle underlying the doctrine of constructive notice is that a person who is bound to make an inquiry and fails to do it should be’ held to have notice of ail facts which would have come to his knowledge had) he made the inquiry ° ‘Q. 16. What is transfer? Ans. The term “transfer” means a process or an act by which something, is made over to another It does not however, mean that the making over of the thing should always be absolute.“l may transfer my book to you for a day. I -may also transfer it to you absolutely either by sale, gift or in exchange of your book. In either case. what is primarily essential is that I have to handover the book to you, and that act of handing over the book to you is the “transfer” of the book. e Q. 17. Whether Transfer of Property Act, 1882 is exhaustive of all kinds oftransfer? ‘Ans. Act not Exhaustive of all Kinds of Transfers—S. 5 makes it clear that only transfers inter vivos are dealt with in the Act. Even as to transfers inter vivos the Act is not exhaustive. It deals with sale, mortgage. gift, lease and exchange. There may be other kinds of transfers and they would not be | governed by the Transfer of Property Act. Ifa transfer in question is governed | by the Transfer of Property Act. it may be oral or written. If it is reduced to writing, it need not be registered unless it is compulsorily registrable under the Indian Registration Act Q. 18. Whether abandonment or release of claims are transfer? Ans. Abandonment or Release of Claim not transfer—An abandonment ofa claim to property is not transfer. A relinquishment in favour of a coparcenef} is nota transfer. A Hindu widow's surrender in favour of the nearest reversioner) is not a transfer. The reason in all these cases is this : In a transfer as defined, by S. 5 some proprietary right of the transferror is conveyed to the transferee, In the abandonment, relinquishment or surrender there is only the withdrawal Scanned with CamScanner ne a CES SEES ee ee 5 Unique, 30 Questions and Answers of the claim and its extinction, but no conveyance of it to the transferee, and so they are not transfers as defined in S. 5 of Transfer of Property Act. @ Q. 19. Whether family settlement and compromises are transfer? Ans. Family Settlement and Compromises not Transfer—S. 6 deals with the transfer of property i.e., transfer of right of property by one party to another party. Since the transactions or family arrangement or compromise of doubtful claims of relinquishments or renunciations does not constitute the transfer of any right of property from one party to another. S. 6 does not apply to those transactions. Q. 20. Whether a “Part .__ Ans. Partition : A partition is not a transfer because it merely affects a change in the mode af enjoyment of property and is not an act of conveying, property from one living person no another. A partition of a joint Hindu family property is not a transfer. In a partition each co-owner gets a specific Property in lieu of his right in all the joint properties. Q. 21. Whether surrender is a transfer? 7 Ans, In Makhan Lal Saha Vs. N.N. Adhicary, AIR 1933 Cal. 467. itwas observed : “the word transfer has not been defined in any statute of law applicable to this country. The word surrender is used in Transfer of Property Act in relation to determination of lease. S. 111. There is no indication in the enactment that surrender is a mode of transfer. The word surrender differs from transfer. In this case, the court held that it is not possible to hold that surrender by a tenant is transfer. But there is no doubt that a surrender in certain circumstances may amount to transfer and operate as such. e Q. 22. Whether transfer may be in present or future? Ans. ‘Transfer may be in Present or in Future : A transfer of property may take place in present or in future, that is to say the actual conveyance of the property may take place in present or in future. but the property itself must be in existence at least, potentially. as the property of the transferor. If, therefore, a conveyance is intended to operate in future. It only means that it is made in respect of property which is in existence, but that the property will be actually conveyed at some future date. Q. 23. Whether the transfer can be made only between amongst living persons? jon” isa transfe: Ans. Yes. Trarisfer can be only between/amongst living *persons’—A. transfer presupposes two distinct persons one of whom is called a transferor and the other transferee. S. 5 of the Act as it originally stood did not indicate what the expression “living person” as used in that section really meant, The Amendment Act, 1929 added a paragraph to the section for the purpose which says : “In this section “livin includes a company or association or body of individuals. whether incorporated or not, but nothing herein contained shall affeet any law for the time being in force relating to transfer of property to or by companies. associations or body of individuals.” e 24. Whether rledication of property to an idol is transfer? Ans. No. (twas held in Pramatha Nath Vs. Pradyumna, 521 A 245. an idol. however, thouxh a juristic person and capable of holding property, is not @ living person and therefore, a dedication of a property to an idol is not a transter and need not be made in writing or by a registered instrument U/S. 123 of the Act ° Q. 25. What is property? REGEN Wes Treery Scanned with CamScanner 6 Property.Law and Easement Ans. The word ‘property’ may be used in the objective sense of a physical thing which is the subject of ownership or other rights; or it may be used in the sense of the rights and interests of the owner or other person in the property. Itis in the later sense that the term is used in this Act, Thus the word |} property for the purposes of the Transfer of Property Act is not restricted |} only to physical thing but goes beyond what is seen, touched or felt by a | layman but much ahead what law considers to be property. e | 26. Can future property be transferred? “ns. According to Lord Westbury, “Ifa vendor or a mortgagor agrees to sell or mortgage property, real and personal, of which he is not possessed at the time and he receives the consideration for contract and afterwards becomes possessed of property answering to the description in the contract, there is no Goubt that the contract would in equity transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired.” e (Q,27. What are the essentials of a valid, transfer? Ais. Essentials of avalid transfer are : (i) the propéfty must be transferable, (S. 6), (ii) the transferror must be competent to transfer. (S. 7.) (iii) the transferee must be competent to take the transfer, [S. 6(h)(3)], (iv) the consideration or object of the transfer must be lawful, [S. 6(h) (2)], (v) the transfer must not be opposed to the nature of the interest affected thereby, [S. 6(h)(1)}, (vi) it must be made in the manner and in the form required by the Act, if any, (S. 9) 7 . e ‘Q. 28. What properties cannot be transferred? Ans. According to S. 6 of T.P. Act following properties cannot be transferred ic.. (i) Spes successionis; (ii) Mere right of re-entry; (ii (iv) Restricted interest; (v) Right to future maintenance. (v) Mere right to sue ‘and Pensions, (vii) Where the consideration and object sfer is unlawful: (viii) Interest of farmers, tenants and lessees. e Easement; (vi) Public office. salaries of tran: (Q. 29. Whether a minor can transfor? ; ‘Ans. In India a person under 18 Years of age is a minor. A person attai majority at the first moment of the day preceding the I8th anniversary of h birth. Minority extends to 21 years when the minor is under the protection of the Court of Wards or when a guardian is appointed by the Court under the Guardians and Wards Act. In Mohori Bibi Vs. Dharmodas Ghose, it was held by the Privy Council that a minor's contract is void. A transfer of property by e © aminor is also void. Q. 30. Can minor bea good transferee? Ans. Yes. Minor as a good transferee. There is no specific provision of Jaw incapacitating a minor from holding property under a transfer. in his favour. If there is no outstanding contractual obligation against him, there is no reason why the transfer should be denied effect simply because the transferee is a ee minor, Q. 31. What do you mean by the legal incidents of property? Ans. Legal Incidents of Property—S. 8 says that ona transfer of property, not only all the interest of the transferor in the property, passes to the transferee but also his interest in the legal incidents of such property. An incident is defined in Wharton's Law Lexicon as “A thing depending upon, appearing to or following another that is more worthy, as rent in incident to a reversion e Q. 32. What is the scope and object of the operation of transfer? Scanned with CamScanner Unique. 30 Questions and Answers Ans. Scope. and Object of the S. 8.—S. 8 provides that unless a different intention is expressed or necessarily implied. a transfer of property passes forthwith to the transferee—(i) first, all the interest which the transferor is then ‘capable of passing in the property; and (ii) second. all the interest which the transferor is then capable of passing in the legal incidents of the property.@ Q. 33. Can there be oral transfer? Ans. Yes, S. 9 provides that a transfer of property may be without writing in every case in which a writing is not expressly required by law. Thus, S. 9 of this Act lays down the general principle that everything should be taken permissible unless there is a prohibition against it. “If the transaction is a transfer of property and there is no express provision of law requiring it to be in writing S. 9 will enable it to be made without writing.” _e Q. 34. What is the difference between condition and limitation? Ans. The word “limitation” is a term of English Law. It refers to the word used in a conveyance to limit or define the nature of estate created. It is the definition or circumscription in any conveyance of the interest which the grantee is intended to take. The popular words of limitation are “generation after generation” and “his heirs” etc. The limitation of the transfer is called condition, ;. What do you mean by perpetuity? Ans. Meaning of Perpetuity : Perpetuity for a beginner means continuous or unending transaction. The ball is set in motion by X once. it keeps on moving of its own by the same force throughout Uniterrupted. This continuous unending through process is known as perpetual transfer or perpetuity as it is called by a lawyer. The words creating perpetuity are not exhaustively defined but “Pusht Dar Pusht” “Naslan bad Naslan’ “Padhi Dar Pidhi” or generation after generation are description that make a transfer perpetual one; For Example, A transfers his house to B for life and then to B’s children generation after generation. This is a perpetuity. : e 79.36. Whether perpetuity is a bad in law? Ans. Yes, Perpetuity is bad in law—It was tolerated earlier in Hindu Law wherein private ownership dominated over social ownership or community > ownership. But in Tagore Vs. Tagore, this perpetuity was declared void and since then principles of S. 14 govern perpetual transters. It is good till S. 14 permits, it is bad when it forbids. S. 14 then describes the rule against e | perpetuity. : PQe81 Does the rule against perpetuity apply to personal laws? ) ‘Ans. After the amendment S. 2, applies directly to Hindus. But irrespective of statute, a perpetuity is repugnant to Hindu Law except in the case of religious and. charitable endow ments, Privy Council held that a gift to remote and unborn generations is forbidden by Mohammedan Law except in case of a wagf and that a wagf is invalid if it is illusory, But the law has since been altered by the Mussatntan Waqf Validating Act, 1913. under which a waaf is valid even if the gift to charity is illusory, provided there is an ultimate gift to charity. To the above Act, retrospective éftect has been given by Act 32 of 1930. e 38. Does the rule againet perpetuity apply to poner of appointment A general power of appointment does not tie up the land, and tlierefore, the period of perpetuity does not begin to run until the date of the exercise of the power, Under special powers of appointment, the donee can Scanned with CamScanner Property Law and Easement transfer only to specified persons and the effect therefore on such a power to tie up land. In the case of the special power the period is to be reckon from the date of creation of the power. Q.39. Does the rule against perpetuity apply to the personal agreeme, Ans. The rule against perpetuity does not apply to personal agreemem that is agreement which does not create an interest in property though the, may be related directly or indirectly to some immovable property. For Exampi, In Nafar Chand Vs. Kailash Chanda, the Shebaits of a temple agreed to appoi the family of C as pujaris from generation to"generation to perform the servi of the temple and made provision for the expenses and remuneration of office. The agreement is valid and not affected by the rule against perpetuity.¢ ‘What do you mean by vested interest? 7 ‘Ans. S. 19 provides that unless a contrary intention appears from terms of the transfer, a person gets a vested interest when it is created in i favour—(i) without specifying the time when it is to take effect; or (ii) in terms, specifying that it is to take effect forthwith; or (iii) in terms specifying that it is to take effect on the happening of an event which must happen. e Bat Whatdo you mean by contingent interest? ns, S. 21 says that where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a Contingent interest in the property. Such interest becomés a vested interest, in the former case, on the happening of the event in the latter, when the happening of the event becomes impossible. . Q. 42. When does a contingent interest become vested? Ans, An interest contingent on the happening of a specified event becomes vested on the happening of that event. If the contingency becomes impossible, the interest never comes into effect. An interest, to take effect ifa specified uncertain event shall not happen, will become vested when the happening of the event becomes impossible. : e What is the difference between a vested and contingent interest? ‘Ans. An interest is said to be vested when it is svhiect to any condition precedent—when it is to take effect on the happening of an event which is certain; whereas an estate is contingent when the right to enjoyment depends on the happening of an uncertain event which may or may not happen. A person takes a vested interest in the property when he acquires a proprietary | right in it but the right of enjoyment is only deferred till a future event happens th is certain to happen; but contigent interest is one in which neither any given at present, but both depend wl proprietary right nor a right of enjoyment is upon future uncertain events. Moras. Whether contingent interest is transferable interest? Ans. Contingent Interest is a Transferable Interest : A contingent interest, not being a mere possibility is a well recognised form of property which | is capable of being transferred. Such a transfer would effectually pass to the transferee, all the interest which the transferor possessed when the | contingency happened and the interest vested in possession. e (Q

    You might also like