SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: Three Year LL.B

Batch: 2020-2023
Semester: Semester II
Course Name: Property Law
PRN: 20010122075
Name of the Student: Aritra Chowdhury

INSTRUCTIONS
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entire examination.
1. The term “Mortgage” has been defined under section 58 of the Transfer of Property
Act, 1882. And as per the definition laid down in the said statute, we can understand,
a mortgage to be a transfer of an interest in a specific immoveable property for the
purpose of securing the payment of money advanced or to be advanced by way of
loan, an existing or future debt, or the performance of an engagement which may give
rise to a pecuniary or a financial or monetary liability.
In such a transaction, the party making such a transfer is known as the mortgagor and
the other party receiving such an interest in the specific immovable property is known
as the mortgagee. On the other hand, the principal money and the interest of which
payment is secured for the time being is called the mortgage-money, and the
instrument (if any) by which the transfer is effected is known as the mortgage-deed.
Now that we know the preliminary definition of the term of mortgage which is
mentioned in the statute itself, it would be
Simple Mortgage- In these kinds of Mortgage, the possession of the mortgaged
property is not delivered by the mortgagor to the mortgagee. Though, the mortgagor
binds himself personally to pay the mortgage money and agrees, either expressly or
impliedly, that in the event of his failing to pay according to the terms of his contract,
the mortgagee shall have the right to cause the mortgaged property to be sold and the
proceeds of the sale to be applied, so far as is necessary, in payment of the mortgage
money. The transaction, is thus, called a simple mortgage and the mortgagee a simple
mortgagee.
Mortgage by conditional sale- In these kinds of mortgage, the mortgagor ostensibly
sells the mortgaged property- on condition that on default of payment of the mortgage
money on a certain date the sale shall become absolute, or, on condition that on such
payment being made the sale shall become void, or, on condition that on such
payment being made the buyer shall the buyer shall transfer the property to the seller.
The transaction is called a mortgage by conditional sale and the mortgagee is known
as the mortgagee by conditional sale. [Provided that no such transaction shall be
deemed to be a mortgage, unless the condition is embodied in the document which
effects or purports to effect the sale]
Usufructuary Mortgage- The word “usufruct” means the right of enjoying the use
and advantages of another person’s property. In these kinds of mortgage, the
mortgagor delivers the possession or expressly or by implication binds himself to
deliver the possession of the mortgaged property to the mortgagee, and authorises him
to retain such possession until the payment of the mortgage money. And further
authorises the mortgagee to receive the rents and profits accruing from the property or
any part of such rents and profits and to appropriate the same in lieu of interest, or in
payment of the mortgage money, or partly in lieu of interest or partly in payment of
the mortgage money. The transaction, is thus, called an usufructuary mortgage and the
mortgagee is known as the usufructuary mortgagee.
English Mortgage- In these types of mortgages, the mortgagor binds himself to repay
the mortgage money on certain date and transfers the mortgaged property absolutely
to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor
upon the payment of the mortgage money as agreed between the concerned parties to
the contract.
Mortgage by deposit of title deeds- In such mortgages, where a person in any of the
following towns, namely, the towns of Calcutta, Madras and Bombay, and in any
other town which the State Government concerned may, by notification in the official
gazette, specify in this behalf, delivers to a creditor or his agent documents of title to
immovable property, with the intent to create a security thereon, the transaction is
called a mortgage by deposit of title deeds.
Anomalous Mortgage- A mortgage which is not a simple mortgage or a mortgage by
conditional sale or an usufructuary mortgage or an English mortgage or a mortgage by
deposit of title deeds within the meaning of this section is called an anomalous
mortgage.
Section 58 of The Property Act, 1882, further provides that, where the principal
money secured is one hundred rupees or upwards, a mortgage other than a mortgage
by deposit of title deeds, can be effected only by a registered instrument signed by the
mortgagor and attested by at least two witnesses. And where the principal money
secured is less than one hundred rupees, a mortgage may be effected by a registered
instrument signed and attested as aforementioned, or except in the case of a simple
mortgage by delivery of the property.
As a conclusion, we can observe that a mortgage is an arrangement where a property
is transferred by the mortgagor to the mortgagee for the purposes of keeping the same
as a security against the mortgage money being advanced to the mortgagor by the
mortgagee. And we get to see the various types of mortgages as is discussed above,
along with the differentiating features that each of those kinds of mortgages hold.
2. The terminology of “sale” is defined under section 54 of the Transfer of Property Act,
1882, which says that “sale” is a transfer of ownership of a property, in exchange for a
price paid or promised or part-paid and part-promised. While on the other hand, the
transaction of exchange of property is defined under section 118 of the said statute,
which defines the term as- When two persons mutually transfer the ownership of one
thing for the ownership of another neither thing or both things being money only, the
transaction is called an “exchange”. Further it is also stated that the transfer of
property in completion of an exchange an be made only in manner provided for the
transfer of such property by sale.
From both the definitions of sale and exchange, we can construe that the process of
sale primarily happens for a consideration called price or monetary consideration
while the process of exchange takes place primarily for the change in the ownership
of both the properties being exchanged against each other, other than the
consideration which is price or the monetary consideration in this case.
For instance, A promised to sell an immovable property to B for a Consideration of
cash payment amounting to Rs. 2000000. This is an example of sale as the primary
consideration for both the parties- A is the cash consideration of Rs. 2000000 and for
B it is the absolute ownership of the said immovable property. And in the case of
exchange, A promises to transfer the absolute ownership in an immovable property of
his situated in Delhi, only if B promises to transfer the absolute ownership in his
property situated in Mumbai in favour of A. This is the true and a favourable
illustration of transfer of property by way of exchange. As here, the consideration is
not price as it was in the previous illustration of sale, rather here the absolute
ownership in the said properties are changing or going through a transition.
Hence, we can certainly come to a conclusion that the sale and exchange both gives
rise to transfer in the absolute ownership of the property. But both these processes
differ in the consideration aspect where it is the price, which acts as consideration in
sale. While in the process of exchange it is the exchange of the ownership in the
respective properties which act as a determinant or a primary consideration.
3. In order for us to understand the various modes of creation of easement under the
Indian Easement Act, 1882, we first need to understand the meaning of the term of
easement in a very simple and an understandable manner. Easement can be defined in
simple terms as- whenever immovable property is involved, there are certain rights
connected to the enjoyment of such an immovable property, without which, such
property may not be conveniently and fully held and enjoyed. Such rights are called
easement.
Though the legal definition as is given by the Indian Easement Act, 1882, under
section 4 reads that an easement is a right which the owner or the occupier of certain
land possesses, as such, for the beneficial enjoyment of that land, to do and continue
to do something, or to prevent something being done, in or upon, or in respect of
certain other land not his own. Hence in order to qualify as an easement, the following
essentials must be met with-
 There must be an owner or occupier of certain land.
 There must be a right vested in such owner or occupier (as such owner or
occupier) to do and continue to do something, or to prevent and continue to
prevent something done in or upon, or in respect of some other land.
 The right must be for the beneficial enjoyment of his land. Thus, if the right is
not in any way connected with the enjoyment of the dominant tenement, it
cannot be an easement.
 The other land in or upon which the right to be exercised, must not be owned
or occupied by him, but by some other person.
Now let us shift our focus to the proposition in the question regarding the various
modes of creation of easement, which is primarily of 4 kinds as is discussed
hereunder with the help of an illustration-
 Easement by prescription- When an owner allows the people to pass through
his land without any objection or obstruction for a continuous period of 20
years or allows the neighbour to enjoy the light and air from his property, the
easement which is created is known as the “easement by prescription”.
 Easement by express grant- When an owner permits people to pass through
his land with full knowledge and consent or creates some kind of right through
the execution of a written agreement, it is known as express grant or covenant.
 Easement by implied grant- When an owner does some kind of act which
implies creation of certain rights over his property, it is known as implied
grant. For instance, when an owner sells the rear portion of his property which
does not have an independent access, it is an implied fact that he will permit
the purchaser to pass through his land. And the entire arrangement is not
reduced down to a written agreement by either of the concerned parties.
  Easement by custom- When people enjoy certain rights to make use of a piece
of land for a social activity, practiced year after year, as a custom. It is said to
be an easement by way of custom.

4. The following case study delves into the transfer of property by way of gift. For the
same, we need to understand what is the primary definition of a gift. The term “Gift”
is defined under section 122 of the Transfer of Property Act, 1882, which states that,
“Gift” is the transfer of certain existing movable or immovable property made
voluntarily and without consideration, by one person, called the donor, to another,
called the donee, and accepted by or on behalf of the donee. Thus, from the given
definition of Gift in the said statute, we can extract the essential factors in the transfer
by way of gift, which are discussed hereunder-
 It is a transfer,
 Of certain existing moveable or immovable property,
 Which is made voluntarily by the donor, and
 Without consideration.
From the following definition we can also extract the parties, who are involved in
such a kind of transaction-
 Donor, who makes such transfer of the property,
 Donee, who receives such a property, or anyone on behalf of the donee.
In the given case problem, Mr. A agrees to donate his land to Mr. B in the following
month to construct a school on the said property. However, before the acceptance
came from the end of Mr. B, he died. We are instructed to comment on the validity of
such a transaction of gift. In the section relating to “gift” under the Transfer of
Property Act, 1882, it is specifically mentioned that such acceptances must be made
during the lifetime of the donor and while he is capable of giving. While on the other
hand, the section also provides that, if the donee dies before, acceptance, the gift is
considered to be void in the eyes of law. Though, there was no issue on the part of the
donor, which is Mr. A, in the said problem. The main problem arose when the donee,
that is Mr. B, died before the acceptance being made on his end. And as per the Indian
position of the statute, this transaction of gift is to be considered as void. Hence, such
a transfer of the said property cannot take place due to the basic fact that B passed
away before making the acceptance. If he had made the acceptance before his death,
 then in the event of his death the property would have passed on to his legal heirs. But
unfortunately, the acceptance is important in this case, which B could not provide
before his death. And hence, the transaction of gift stands void in the legal parlance.

5. (a) Vested Interest- The term vested is used in two senses, i.e.,
Vested in possession, or
Vested in interest only.
The section governing the concept of Vested Interest is Section 19 of the Transfer of
Property Act, 1882. An interest is said to be ‘Vested in possession’ when it is a right
to present possession of property. An interest is said to be ‘Vested in Interest only’
when it gives a present right to the future possession or enjoyment of property.
For instance, A transfers his land to B for life and then to C, B in this case, has vested
interest in possession. He has the immediate right to the possession of the land. C has
also vested interest in the land even during the lifetime of B with a present fixed right
to enjoyment of land on the death of B, the interest of C is not subject to any uncertain
condition, as B is bound to die sooner or later. If C dies before B, then in that case C’s
heirs will inherit the land. The one thing that we all should keep in our mind is that
the Vested Interest is not defeated by the death of the transferee before he obtains the
possession. The other additional pointers in the concept of vested interest is that, the
vested interest does not depend upon the fulfilment of any condition, there is a present
immediate right though its enjoyment may be postponed to some future date. And
finally, it is to be understood in its entirety that the vested interest is both transferable
as well as heritable, as we have seen in the above-mentioned instance, specifically on
the death of C where the in heritance of the said property goes to his legal heirs.

(b) License- A licence is a personal right granted to a person to do something upon

immovable property of the grantor and does not amount to the creation of interest in
the property itself. It is purely a permissive right and is personal to the grantee. It
creates no duties and obligations upon the persons making the grant and is, therefore,
revocable except in certain circumstances expressly provided for in the Indian
Easements Act, 1882 itself. The licence, when granted, has no other effect to confer
liberty upon the licencee to go upon the land which would otherwise be lawful. “A
licence in the law of land is ordinarily a permission merely to do something on or to
the detriment of the land of the giver of the licence, the licensor. Occasionally it is a
permission to interfere with an easement or profit a prendre belonging to the licensor.
It creates a privilege in favor of the licencee.” A licence may be oral in which case,
terms, conditions and the nature of the licence, can be gathered from the purpose for
which the licence is granted coupled with the conduct of the parties and the
circumstances which may have led to the grant of the licence. Every licence is
governed by the provisions under the Easements act. A licence does not confer an
interest or property in the thing, and though it may be coupled with a grant which
conveys an interest in property, licence by itself does not confer any interest. Where
the parties entered into a partition agreement and divided the property giving
themselves certain rights, it would not amount to a licence. The negative definition of
licence under Indian law makes it necessary that before a right can be shown to be a
licence only, it must be proved not to be an easement or an interest in the property.
Licence under Indian Law- In India, the Indian Easements Act, 1882 provides for
law relating to licences in property law. Section 52 of Indian Easements Act, 1882
defines Licence as under: “Where one person grants to another, or to a definite
number of other persons, a right to do or continue to do, in or upon immovable
property of the grantor, something which would, in the absence of such rights, be
unlawful, and such right does not amount to an easement or an interest in the
property, the right is called a licence.” From the above definition of licence, it seems
that if a person himself has acquired a right or interest in an immovable property
through an instrument, the right conveyed in his favour in that instrument, will not be
licence. In India, judicial and legislative definitions of licence have followed the
English definitions of the term. Under Section 52, if a person is given the right to use
the immovable property in a particular way under certain terms while retaining
control and possession of the same, the person so permitted is only a licencee. The
question that arises in this context is that whether the relationship is that of landlord-
tenant or licensor-licensee. The relationship depends on the intention of the parties
that whether there was interest in the land or merely personal privilege without any
interest. A licence cannot be granted only in favour of definite number of persons and
not in favour of fluctuating body or individuals. The agreement involved in the case,
even if binding on the defendants, cannot be considered to be at least a bilateral
agreement between the representatives of the two parties and containing reciprocal
conditions. A licence is a personal right given to the licencee and, therefore, Section
56 of the Easements Act, 1882 provides that licence cannot be transferred by the
licencee or exercised by his servants and agents. The Supreme Court in Associated
Hotels of India Ltd. v. R.N. Kapoor summed the concept of Licence as under:
“Under the aforesaid section, if a document gives only a right to use the property in
particular way or under certain terms while it remains in the possession and control of
the owner thereof, it will be a licence. The legal possession, thereof, continues to be
with the owner of the property, but the licencee is permitted to make use of the
premises for a particular purpose. But for the permission, his occupation would be
unlawful. It does not create in his favour any estate or interest in the property.”
It important to take note of essential features of licence as under:
 A licence is not connected with the ownership of land / property but creates
only a personal right or obligation;
 Licence only creates a right or interest in the immovable property to do
something, under the authority of the grantor of the licence.
 A licence cannot be transferred or assigned;
 Licence is purely permissive right arising only by permission, express or
implied, and not by adverse exercise or in any other way;
 It only legalizes a certain act which would otherwise be unlawful and does not
confer any interest in the property itself in or upon or over which such act is
allowed to be done.
 A licencee cannot sue outsiders in his own name.