Topa Ready Reckoner Revised

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TRANSFER OF PROPERTY ACT

DESCRIPTIVE QUESTION BANK
With Answers
FINAL VERSION
SEMESTER III OF LLB (3 YEARS COURSE)
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INDEX
Q No. Questions Page
No.
1 State the rights of an unpaid seller 6
2 State the difference between transfer and transmission. 6
3 Define constructive notice 6
4 What does “attested” mean 6
5 What is conditional transfer 7
6 Who are competent to transfer? 7
7 What is difference between fradulent transfer and a 7
benami transfer
8 Define right of redemption 8
9 Who may impose easement 8
10 How can Easement be acquired by prescription 8
11 Write Short notes on Part performance 9
12 Vested interest & Contingent interest & Distinguish 9
13 Doctrine of Election 10
14 Rule against Perpetuity 10
15 Lease & License and Distinguish 11
16 Write Short notes on Extinction of Easement 12
17 What is principle of marshalling 12
18 State properties which cannot be transferred 13
19 Define mortgage 14
20 Explain in brief the different types of mortgages. 14
21 What are the essential elements of a gift 15
22 When can a gift be revoked 15
23 What is a Lease 15
24 What are the rights and liabilities of a lessor and a 16
lessee
25 Discuss the difference between Easement and License. 17
26 What is Sale 17
27 What the rights and liabilities of the buyer and the 18
seller?
28 What is “Actual Notice” 20
29 How can a lease be made? When can a lease be 20
terminated?
30 What is mean by “instrument” 21
31 Define “immovable property”? Give two examples of 21
what are not immovable property
32 What does “Attested” mean? 21
33 Who is competent to transfer? 7
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34 What is dominant heritage? 22

35 Who can acquire an easement 22
36 Give any two examples of properties which can be 22
transferred
37 What do you mean by Ostensible Owner? Explain 23
provisions dealing with transfer by Ostensible Owner
38 Write Short notes on Transfer and Transmission 6
39 Write Short notes on Doctrine of Lis Pendens (Provision 23
of law a shield not a sword)
40 Write Short notes on Fraudulent Transfer? Explain 24
with Exceptions.
41 What is ‘Exchange’? What properties cannot be 24
transferred?
42 Explain the different modes of acquiring an easement. 25
43 What is the difference between actual notice and 26
constructive notice?
44 Explain Tenancy at will and Tenancy at sufferance 26
45 What are the liabilities of a mortgagee in possession 27
46 What is conditional transfer? Explain difference 28
between condition precedent and condition subsequent
47 Define Charge. Give any two examples of charge by 28
operation of law.
48 Who are competent to transfer? 7
49 What is meant by transmission? 29
50 Define Right of Foreclosure. 29
51 How can easement be acquired by prescription? 29
52 What is profit a prendre? 30
53 Write a Short note on Quasi easement 31
54 What is an Exchange? What are the rights and 31
liabilities of the parties to an Exchange?
55 What is an Exchange? What properties cannot be 32
transferred?
56 What is difference between Exchange and Partition 33
57 When can a gift be revoked 15
58 State any two rights of a mortgagee 33
59 What is ‘subrogation’? State properties which cannot 34
be transferred?
60 What are the essentials of an easement? 34
61 Write Short note on Covenants 35
62 Write Short note on Actionable Claim. Give 2 examples. 35
63 Write Short note on Universal Donee 36
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64 Write Short notes on Part Performance? What are the

conditions to be fulfilled by transferee who wants to 37
defend or protect his possession? What conditions must
be satisfied before the doctrine of Part Performance can
be applied?
65 What is “Sale” & “Contract of Sale” 38
66 How sale is made 38
67 What is mean by marshalling by subsequent purchaser 38
68 What are essential characteristics of a “lease” 39
69 Write a short note on forfeiture of lease 39
70 What is ‘Gift’ 40
71 What are the essentials of a Gift & how are gifts 40
effected & how is it affected
72 What are the different types of Gifts 41
73 What is onerous gift 41
74 Write a Short note on Kinds of Property 41
75 What is meant by expression "attached to the earth" 42
76 Define 'Transfer of Property'. What are the essentials of 42
a valid Transfer? What property may be transferred?
What are the Ten exceptions
77 Discuss whether Surrender, Charge, Exchange, 44
Partition are transfers
78 Who is an heir-apparent 45
79 What property cannot be transferred? What are 45
exceptions
80 What persons are competent to transfer property 7
81 What are accessory rights 46
82 What is oral transfer 46
83 Write a Short note on Conditions restraining alienation 47
of Property
84 Write a Short note on partial restraint on transfer 47
85 Discuss the statement : The law always favours 48
alienation of property rather than its accumulation
86 Write a Short note on Direction of accumulation of 48
income
87 Write a Short note on Transfer for benefit of unborn 49
child
88 What is Apportionment 50
89 Discuss transfer by an unauthorised person who
subsequently acquires interest in the property 50
transferred
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90 Define an English Mortgage and discuss the

mortgagee's power to sell the mortgaged property 51
without the intervention of the court
91 What are the rights and liabilities of a mortgagor 52
92 What is redemption? Who can redeem a mortgage 53
besides the mortgagor
93 Write a short note on Clog on redemption 53
94 Write short note on easement and its elements 54
95 Who is a riparian owner 54
96 Explain the different types of easement 55
97 Distinguish between Easement and Profit-prendre 55
98 Define servient heritage and servient owner 55
99 Write a short note on natural rights 56
100 Write a short note on Acquisition of easements 25
101 How can an easement be imposed 56
102 Write a short note on Easements of necessity 57
103 Explain doctrine of lost grant 57
104 Distinguish between customary easement and 58
prescriptive easement
105 Write a short note on Suspension and revival of 58
easements
106 Define License under India Easement Act, 1882 59
107 What is License? Explain the important features of 59
license
108 Explain revocation of a license and give 2 instances 60
where a license is deemed to have been revoked
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1) What are the rights of an unpaid seller?
Under Sec 55 (4) (b) of the Transfer of Property Act, 1882, if the ownership of the property has
passed to the buyer prior to payment of the full amount of purchase consideration, the unpaid seller
of the property is entitled to a charge on the property in the hands of the buyer or a transferee
without consideration or a transferee, with notice of the non-payment, for the amount remaining
unpaid and for interest on the said amount from the date on which possession of the property was
handed over.
2) State the difference between transfer and transmission.
Transfer of property under the Transfer of Property Act, 1882 has been defined to mean an act by
which a living person conveys property, in present or in future, to one or more other living persons
or, to himself and one or more other living persons and “to transfer property” is to perform such act.
The Act clarifies that “living person” includes a company or association or body of individuals
whether incorporated or not. “Transfer” being an act implies a conscious, voluntary action by a
person in his lifetime to any other living person. Transmission, on the other hand, is succession
which involves passing of a right and obligation over a property to the heirs or others consequent
upon the death of the owner of the property.
3) Define constructive notice?
Constructive Notice, is notice of a fact, which a person with ordinary prudence ought to have known
but may not know because of his “wilful abstention from making an enquiry or search or “gross
negligence”. Constructive notice is a legal presumption in accordance with the provisions of the
Transfer of Property Act, 1882. For instance, if a document is registered, it leads to a presumption of
constructive notice of all the facts stated in that document or which can be reasonably inferred from
the contents of the document.
4) What does “attested” mean?
As per Sec 3 of the Transfer of Property Act, 1882, “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. It is not however, necessary that more than one of such witnesses
should be present at the same time.
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5) What is conditional transfer?
Any transfer of property that vests an interest, created by a transferor, that happens to be
contingent upon the fulfilment or non-fulfilment of a condition, is referred to as a conditional
transfer. Conditional transfers can be of two types. First, where the condition has to be complied
with or fulfilled before a transfer can be effected and secondly, where condition is to be fulfilled
after the transfer is complete. In former cases, the conditions are called conditions precedent while
the latter is called conditions subsequent.
6) Who are competent to transfer?
As per Sec 7 of the Transfer of Property Act, 1882, every person competent to contract and entitled
to transferable property, or authorised to dispose of transferable property not his own, is competent
to transfer such property either wholly or in part and either absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and prescribed by any law for the time
being in force.
Thus, factoring in the provisions of the Indian Contract Act, every person who is of the age of
majority according to the law and who is of sound mind and is not disqualified from contracting by
any law to which he is subject and is entitled to transferable property, or authorised to dispose of
transferable property not his own, is competent to transfer.
7) What is difference between fradulent transfer and a benami transfer
Section 53 of the Transfer of Property Act, 1882 talks about fraudulent transfers which is a transfer
made with a fraudulent intention, intending to defeat the interest of a creditor or interest of any
subsequent transferee. Such transfers shall be voidable at the option of the creditor so defeated or
delayed.
In a Benami transaction, a property is transferred or held by one person (Mr A, the ‘Benamidar’) and
the consideration for such property is paid by another person (Mr B, the ‘beneficial owner’) for
whose benefit such property is held.
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8) Define right of redemption.
Right of redemption is referred to in Sec 60 of the Transfer of Property Act, 1882. It describes the
right of redemption of a property that has been mortgaged. The word redemption means to make
free or get back the mortgaged property by paying mortgage Debt.
At any time after the principal money has become due, the mortgagor has a right, on payment or
tender, at a proper time and place, of the mortgage-money, to require the mortgagee:
(1) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged
property
(2) to deliver possession of property to the mortgagor and retransfer the mortgaged property as
required.
9) Who may impose easement?
Under Sec 8 of the Easements Act, 1882, an easement may be imposed by any one in the
circumstances, and to the extent, in and to which he may transfer his interest in the heritage on
which the liability is to be imposed.
It is pertinent to note that, not only the owner but every person who possesses any interest in any
property can grant an easement over it in the circumstances, and to the extent in and to which he
can transfer his interest. For example, a tenant who has power to sublet can grant an easement over
the demised premises for the term of the lease.
10) How can Easement be acquired by prescription?
Section 15 of The Indian Easement Act 1882 states that in order to acquire a prescriptive right of
easement in respect of access and use of light or air to and for any building or support from another
person’s land it must have been peacefully enjoyed as an easement without interruption for twenty
years. A right of way or any other easement it must have been peacefully and openly enjoyed as an
easement as of right without interruption for twenty years.
Thus, the term “easements by prescription” refers to the acquisition of certain easement rights over
a property by showing that he or she has been in possession of the property or enjoying rights for a
long period of time.
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11) Write Short notes on Part performance
The Doctrine of Part Performance, covered in Sec 53 A of the Transfer of Property Act, 1882 says
that the transferor or any person claiming under him shall be debarred from enforcing against the
transferee and the 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. The transfer should be in writing and duly signed by either the transferor or his
agent. From the terms of the document, it should be reasonably certain that the intent of the parties
is to transfer the immovable property from the transferor to the transferee. In addition, the
transferee must have, in part performance of the contract, taken possession of the property or any
part of the property. Further, the transferee must either have performed his part of the contract or
must be willing to do so.
The objective of the provision is to provide equity and prevent a transferor or his successor from
taking advantage of a fact like non-registration of the document, provided the transferee has
performed or is willing to perform his part of the contract.
12) Write Short notes on Vested interest & contingent interest and the distinction between them
(1) Sec 19 of the Transfer of Property Act, 1882, vested interest is an interest in a property
transferred to a person forthwith or where the time is not specified or on the happening of an event
which is certain. On the other hand, Sec 21 defines contingent interest as an interest in a property
transferred in favour of a person on the happening or not happening of a specified uncertain event.
(2) Vested interest in property creates an immediate interest in the property though the right to
enjoyment may be postponed. Contingent interest solely depends on the fulfilment of a specific
condition which entails the happening or not happening of an event which is uncertain.
(3) Vested interest is not defeated by the death of the transferee while Contingent is defeated.
(4) Vested interest is a transferable and heritable right. Whereas contingent interest is transferable
but whether heritable or not depends on the nature of contingency.
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13) Write Short notes on Doctrine of Election
The doctrine of election, as stated in Sec. 35 of the Transfer of Property Act, 1882, stipulates that
when a party transfers a property over which he does not hold any right of transfer and entailed in
that transaction is a benefit conferred upon the original owner of the property, such owner must
elect his option to either validate such transfer of property or reject it.
Doctrine of election is a common law principle of equity that casts an obligation on a to elect or
choose between two inconsistent and alternative rights According to doctrine of election, if a benefit
is conferred upon a person under an instrument, that person must also bear the burden resulting
from the same instrument.
Illustration: By a deed X (transferor) gives to Y (transferee) a farmhouse belonging to Z (owner), and

by the same deed gives a factory belonging to himself (X) to Z. Now, Z has to elect whether he wants
to take the factory of X by giving his farmhouse to Y or whether he wants to retain his farmhouse in
which case he has to give up the factory.
14) Write Short notes on Rule against Perpetuity
Rule against perpetuity is a rule which is against a transfer making it inalienable for an indefinite
period or forever. Where a property is transferred in such a way that it becomes non-transferable in
future for an indefinite period, the property is tied up forever. This disposition would be a transfer in
perpetuity. The law against this is enshrined in Sec 14 of the Transfer of Property Act, 1882 which
states as under:
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 minority of some person who shall
be in existence at the expiration of that period, and to whom, if he attains full age, the interest
created is to belong.
Thus, the maximum permissible remoteness of vesting is the life of the last preceding interest plus
minority of the ultimate beneficiary.
The essential conditions of the rule against perpetuity as given in this section are as follows:
(1) There is a transfer of property.
(2) The transfer is for the ultimate benefit of an unborn person who it given absolute interest.
(3) The vesting of interest in favour of ultimate beneficiary is preceded by life or limited interests of
living person (s).
(4) The ultimate beneficiary must come into existence before the death of the last preceding living
person.
(5) Vesting of interest in favor of ultimate beneficiary may be postponed only up to the life or lives of
living persons plus minority of ultimate beneficiary; but not beyond that.
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15) Write Short notes on Lease & License and distinguish between both
In terms of Sec 105 of the Transfer of Property Act, 1882, a lease of immovable property is defined
as a transfer of a right to enjoy such property, a certain time or in perpetuity, in consideration of a
price paid or promised,
In terms of Sec 52 of the Easements Act, 1882, a license is defined as one person granting to
another, a right to do, or continue to do, in or upon the immovable property of the grantor,
something which would, in the absence of such right, be unlawful, and such right does not amount
to an easement or an interest in the property.
The essential difference between a Lease & a License are as under:
(1) A lease is a transfer of an interest in a specific immovable property, while license is a bare
permission, without any transfer of an interest.
(2) A lease is both transferable and heritable, a sub tenancy can be created by the tenant and on the
death of the tenant, the tenancy can be inherited by his/her legal heir, whereas, license is neither
transferable nor heritable.
(3) A license comes to an end with the death of either the grantor or the guarantee, since it is a
personal contract, but a lease does not comes to an end on either the death of the grantor or
grantee.
(4) A lease is unaffected by the transfer of the property by sale in favour of a third party, whereas, in
case of a license, if the property is sold to a third party, it comes to an end immediately.
(5) A license can be withdrawn at any time at the pleasure of the grantor but the lease can come to
an end only in accordance with the terms and condition stipulated in the contract.
(6) A lessee has a right to protect the possession in his own right, whereas, a licensee cannot defend
his possession in his own name as he does not have any proprietary right in the property.
(7) A lessee in possession of the property is entitled to any improvements or accessions made to the
property, while a licensee is not.
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16) Write Short notes on Extinction of Easement
Extinction of Easements is covered between sections 37 & 48 of the Easements Act, which cover the
following 12 ways of extinction:
(1) Extinction by dissolution of right of servient owner
(2) Extinction by release
(3) Extinction by revocation
(4) Extinction on expiration of limited period or happening of dissolving condition
(5) Extinction on termination of necessity
(6) Extinction of useless easement
(7) Extinction by permanent change in dominant heritage
(8) Extinction on permanent alteration of servient heritage by superior force
(9) Extinction by destruction of either heritage
(10) Extinction by unity of ownership
(11) Extinction by non-enjoyment
(12) Extinction of accessory right
17) What is principle of marshalling?
Marshalling is covered under Sections 56 and 81 of the Transfer of Property Act, 1882. Sec 56 deals
with Marshalling by subsequent purchaser while Sec 81 deals with Marshalling by subsequent
mortgagee.
Sec 56 states that if the owner of two or more properties mortgages them to one person and then
sells one or more of the properties to another, the buyer is entitled to have the mortgage debt
satisfied out of the properties not sold to him. However, this is subject to anything to the contrary in
a contract with him and also subject to the rights of other persons who have acquired an interest in
any of the subject properties.
Sec 81 is identical to Sec 56 but for the fact that instead of a buyer of the property or properties, it
deals with the marshalling rights of a mortgagee i.e. a subsequent mortgagee after the first.
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18) State properties which cannot be transferred?
The exceptions to Sec 6 of the Transfer of Property Act, 1882 lay down the properties which cannot
be transferred and these are:
(1) 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 (Spes Successionis)
(2) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one
except the owner of the property affected thereby.
(3) An easement cannot be transferred apart from the dominant heritage.
(4) An interest in property restricted in its enjoyment to the owner personally cannot be transferred
by him.
(5) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be
transferred.
(6) A mere right to sue cannot be transferred.
(7) A public office cannot be transferred, nor can the salary of a public officer, whether before or
after it has become payable.
(8) Stipends allowed to military, naval, air-force and civil pensioners of the Government and political
pensions cannot be transferred.
(9) No transfer can be made in so far as it opposed to the nature of the interest affected thereby, or
an unlawful object or consideration within the meaning of Sec 23 of the Indian Contract Act, 1872, or
to a person legally disqualified to be transferee. A purported transfer of res nullius like air or water
from a river falls in this category. Res communes i.e. things which do not belong to any particular
person also fall in this category.
10 Nothing in this section shall be deemed to authorise a tenant having an untransferable right of
occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or
the lessee of an estate under the management of a court of Wards, to assign his interest as such
tenant, farmer or lessee.
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19) Define mortgage
A mortgage is the transfer of an interest in specific immovable 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 liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and 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 called a mortgage-deed.
20) Explain in brief the different types of mortgages.
The different types of mortgages are:
(1) Simple mortgage – Where property is not delivered but mortgagor binds himself to pay and
agrees for the mortgagee to sell the property to recover dues in case of failure to pay.
(2) Mortgage by conditional sale – Where property is ostensibly sold to mortgagee with the
condition that if mortgage money is not paid, the sale will become absolute and if paid the sale will
either become void or the mortgagee will transfer the property back to the mortgagor.
(3) Usufructuary mortgage – Where the mortgagor delivers possession of the property to mortgagee
and authorises him to retain possession and receive rents till payment of mortgage money.
(4) English mortgage – Where the mortgagor is bound to pay the mortgage-money on a certain date,
and transfers the mortgaged property absolutely to the mortgagee, with a proviso that he will re-
transfer it to the mortgagor upon payment of the mortgage-money.
(5) Mortgage by deposit of title-deeds – Prevalent in large towns and cities, in which delivers to a
creditor, documents of title to immovable property, with intent to create a security thereon.
(g) Anomalous mortgage – All mortgages not covered above. Examples are the kanom, otti &
peruartham mortgages of Madras and san mortgage of Gujarat.
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21) What are the essential elements of a gift?
The essential elements of a gift are:
(1) It is the transfer of certain existing movable or immovable property capable of being transferred.
(2) It is made voluntarily and without consideration, by one person, called the donor, to another,
called the donee.
(3) It has to be and accepted by donee and the acceptance must be made during the lifetime of the
donor and while he is still capable of giving.
(4) If the donee dies before acceptance, the gift is void.
(5) Gift for an immovable property must be through a registered instrument (commonly a gift deed).
(6) Gift for movable property may be through a registered instrument or by delivery.
22) When can a gift be revoked?
(1) A gift can be revoked if the donor and donee agree that on the happening of a specified event,
the gift should be revoked.
(2) A gift may be revoked for any of the reasons (other than want of consideration) in which, if it
were a contract, it might be rescinded. Examples of such reasons include the use of coercion, undue
influence, fraud, misrepresentation etc. to procure the gift.
The donor cannot exercise his right of revocation if the donee has already transferred the property
to a third person.
23) What is a Lease?
As per Sec 105 of the Transfer of Property Act, 1882, a lease of immovable property is defined as, a
transfer of a right to enjoy such property, made for a certain time or in perpetuity, in consideration
of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be
rendered periodically or on specified occasions to the transferor by the transferee, who accepts the
transfer on such terms.
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24) What are the rights and liabilities of a lessor and a lessee?
(1) Rights and liabilities of the lessor
(i) the lessor is bound to disclose to the lessee any material defect in the property, with
reference to its intended use, of which the former is and the latter is not aware and could
not with ordinary care discover.
(ii) the lessor is bound on the lessee’s request to put him in possession of the property:
(iii) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent and
performs the contracts binding on the lessee, he may hold the property during the time
limited by the lease without interruption.
(2) Rights and liabilities of the lessee
(i) if during the continuance of the lease any accession is made to the property, such accession shall
be deemed to be comprised in the lease.
(ii) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any
material part of the property be wholly destroyed or rendered substantially and permanently unfit
for the purposes for which it was let, the lease shall, at the option of the lessee, be void.
(iii) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is
bound to make to the property, the lessee may make the same himself, and deduct the expense of
such repairs with interest from the rent, or otherwise recover it from the lessor.
(iv) if the lessor neglects to make any payment which he is bound to make, and which if not made by
him, is recoverable from the lessee or against the property, the lessee may make such payment
himself, and deduct it with interest from the rent, or otherwise recover it from the lessor.
(v) the lessee may, even after the determination of the lease, remove, at any time whilst he is in
possession of the property leased but not afterwards, all things which he has attached to the earth,
provided he leaves the property in the state in which he received it:
(vi) when a lease of uncertain duration determines by any means except the fault of the lessee, he is
entitled to all the crops planted or sown by the lessee and growing upon the property when the
lease determines, and to free ingress and egress to gather and carry them.
(vii) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of
his interest in the property, and any transferee of such interest or part may again transfer it. The
lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching
to the lease:
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25) Discuss the difference between Easement and License.
The major points of difference between an easement and a licence are the following:
(1) An easement is a right appertaining to property while a license is only a personal right.
(2) An easement is a right in rem and is enforceable by all and against all into whose hands the
servient and the dominant tenements respectively may come, while a license is only a right in
personam and therefore, not so enforceable.
(3) An easement can be assigned with the property to which it is annexed, but a license cannot be
assigned.
(4) A right of easement is not revocable at the will of the grantor while a license is so revocable.
(5) A license is permissive right traceable to a grant from the licensor. But an easement is acquired
either by assertive enjoyment by the dominant owner or by a negative covenant between the
parties or by grant or by statute.
(6) An easement may be positive or negative in character, a license is invariably positive and cannot
be negative in character.
26) What is Sale?
Under the Transfer of Property Act 1882, Sec 54, sale is defined as the transfer of ownership of a
property in exchange for a price paid or promised or part-paid and part-promised.
Sec 54 further lays down that in case of tangible immovable property of value Rs. 100 upwards, a
sale can be made only by a registered instrument. If the value is less than Rs. 100 then the sale can
be made by a registered instrument or by the delivery of the property i.e. placing the buyer in
possession of the property by the seller.
It is important to note that a sale is different from a contract for sale, which is a mere contract that a
sale of property shall take place on terms settled between the parties but does not create any
interest or charge on such property.
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27) What the rights and liabilities of the buyer and the seller?
Liabilities of Seller before completion of sale
(1) To disclose all material defects to the potential buyers of the property, which they may not be
aware of and may not be able to recognise in the regular course of action. A material defect is an
issue within a component or system of a residential property that may have an adverse impact on
the value of the concerned property, or that poses an unreasonable risk to the resident, such as
temporarily-hidden seepage issues of a significant nature, unstable foundation of the building, etc.
(2) To show to the buyer, on his/her request, all such documents of title which are relevant to the
property, and which are in your possession or in your power to access and show.
(3) To answer to the best of your knowledge all the genuine and applicable questions asked by the
buyer regarding the property or its title.
(4) To enter into a contract with the buyer which states that the interest in the property, which you
intend to transfer to the buyer, shall continue to remain so after the transfer. Also, the buyer would
take over the authority to transfer the property to someone else, as desired.
(5) To pay and clear all governmental charges (property tax) or other encumbrances accrued (home
loan, among others) on the property up to the date of sale.
(6) To take proper care of the property and all relevant documents of title between the date of the
contract of sale and the delivery of the possession of the property.
Liabilities of Seller after completion of sale
(1) To hand over the possession of the property to the buyer or any such person whom the buyer
directs, post the completion of the sale.
(2) To deliver all the documents of the title you possess or have the power to access, to the buyer,
after receiving the total sale price of the property.
Rights of Seller before completion of sale
(1) To receive the profit and rent amounts arising out of the property
Rights of Seller after completion of sale
(1) To a charge or lien upon the property in such a situation where the ownership of the property is
transferred to the buyer before the payment of the full sale price for the property is made to the
seller.
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Liabilities of Buyer before completion of sale
(1) To disclose to the Seller any fact as to the nature or extent of the Seller’s interest in the property
of which he is aware but which he knows the Seller is not aware, and which materially increases the
value of such interest.
(2) To pay the tender money to the Seller. Where the property is sold free from encumbrances, the
buyer may retain the amount of any encumbrances on the property.
Liabilities of Buyer after completion of sale
(1) To bear any loss (not caused by Seller) arising from any destruction, injury, or decrease in the
value of property.
(2) To pay public charges and rents which may become payable in respect of the property, the
monies due on any encumbrances.
Rights of Buyer before completion of sale
(1) To a charge on the property for the purchase money paid
(2) To interest on such purchase money
(3) To the earnest and costs awarded to him in a suit to enforce specific performance of the contract
or to obtain a decree of its rescission, provided he declines to accept delivery on proper and
legitimate grounds.
Rights of Buyer after completion of sale
(1) To the benefits of any improvement in, or increase in value of, the property
(2) To the rents and profits from the property.

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28) What is “Actual Notice”?
Direct or express knowledge or intimation of a fact to a person is said to be an actual notice of the
fact to that person. Actual notice is formal communication of a definite fact relevant to the
transaction to one party by another party interested in the transaction. An actual notice is said to be
binding upon a person only when the following requirements are fulfilled:
(1) The knowledge must be definite and not gained through hearsay or rumours.
(2) The notice must be of such a nature a reasonable person is expected to take the notice seriously.
It must be the result of a formal communication and not a casual conversation between individuals.
(3) The notice must be provided by a person interested in the transaction.
(4) The notice must be in relation to the transfer in question, not general or irrelevant to the
transaction
Actual notice differs from Constructive Notice, which is notice of a fact, which a person with ordinary
prudence ought to have known but may not know because of his “wilful abstention from making an
enquiry or search or “gross negligence”. Constructive notice is a legal presumption in accordance
with the provisions of the Transfer of Property Act, 1882. For instance, if a document is registered, it
leads to a presumption of constructive notice of all the facts stated in that document or which can
be reasonably inferred from the contents of the document.
29) How can a lease be made? When can a lease be terminated?
As per Sec 107 of the Transfer of Property Act, 1882, a lease from year to year, or for any term
exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. Such
instrument shall be executed by both the lessor and the lessee. All other leases of immovable
property may be made either by a registered instrument or by oral agreement accompanied by
delivery/possession.
The ways in which a lease can be terminated are stated in Sec 111 of the Act and these are:
(1) By lapse of time.
(2) By happening of a specified event.
(3) By the termination of lessor’s own interest in the immovable property.
(4) By Merger of interests. For Example, If the landlord makes a gift or sells the tenanted house to
the tenant, the lease comes to an end.
(5) By express surrender like where a tenant vacates the premises before the expiry of the term.
(6) By implied surrender. For instance, where a lessee accepts from the lessor a new lease.
(7) By forfeiture of the right of the lessee to use the property because of some fault on his part. -
(8) By the expiry of the notice to quit.

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30) What is meant by “instrument”?
As defined in Sec 3 of the Transfer of Property Act, 1882, an instrument is a non-testamentary

document.
An instrument of transfer means an instrument which is effective to transfer an interest in property;

it includes but is not limited to a deed, a contract to transfer, an instrument creating a security
interest in personal property. Hence, an Instrument is a document that records the nature and
extent of an interest in a property. The most common instruments are Sale Deeds, Mortgage Deeds,
Lease Deeds, Gift Deeds etc.
It is differentiated from a document which is essentially a record of the conditions agreed upon by
the parties involved in a transaction. Instrument is a document by which a right or liability is created,
transferred, extended, limited, extinguished or recorded.
31) Define “immovable property”? Give two examples of what are not immovable property
The Transfer of Property Act, 1882 merely lays down that immovable property does not include
standing timber, growing crops or grass. However, Sec 3 (25) of the General Clauses Act defines
immovable property as to include land, benefit to arise out of land, things attached to the earth or
permanently fastened to anything attached to the earth.
As per the Indian Registration Act, immovable property includes land, buildings, hereditary
allowances, rights to ways, lights, ferries or any other benefits to arise out of land and things
attached to earth, but not standing timber, growing crops or grass.
Two examples of property which are not immovable property are (1) gold jewellery (2) Shares and
Debentures.
32) What does “Attested” mean?
“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. It is however,
not necessary that more than one of such witnesses shall have been present at the same time.
33) Who is competent to transfer?
Covered in Qs. 6 on page 2.

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34) What is dominant heritage?
Dominant heritage is a term related to Easements which is covered in Sec 4 of the Easements Act,
1882. Easement is defined as a right which the owner or occupier of certain land (includes things
permanently attached to the earth) possesses, as such, for the beneficial enjoyment of that land, to
do and continue to do something, or to prevent and continue to prevent something being done, in
or upon, or in respect of, certain other land not his own.
The land for the beneficial enjoyment of which the right exists is called the dominant heritage.
35) Who can acquire an easement?
As per Sec 12 of the Easements Act, 1882, an easement may be acquired by the owner of the
immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by
any person in possession of the same.
One of two or more co-owners of immovable property may, as such, with or without the consent of
the other or others, acquire an easement for the beneficial enjoyment of such property.
However, no lessee of immovable property can acquire, for the beneficial enjoyment of other
immovable property of his own, an easement in or over the property comprised in his lease.
36) Give any two examples of properties which can be transferred?
As per Sec 6 of the Transfer of Property Act, 1882, any property other than the exceptions specified
in the section can be transferred.
Transferability of property is based on the maxim alienation rei prae fertur juri accrescendi which
means that alienation is favoured by the law rather than accumulation. The general policy of law is
to promote free alienation and circulation of property rather than accumulation.
Examples of property that can be transferred include, land, a home or a house, machinery, debt or
actionable claim, money etc.
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37) What do you mean by Ostensible Owner? Explain provisions dealing with transfer by
Ostensible Owner
The word ‘ostensible’ means something that appears to be true. The ostensible owner is thus not
the real owner of a property. He merely represents himself out as real owner to the third parties.
Such ostensible owner possesses all the rights of ownership in a property without being the real
owner of it. He acquires these rights from the real owner by the express or implied consent of such
an owner. Generally, the property is recorded in his name though the consideration for the purchase
would have been given by the real owner. He is the full and unqualified owner and the real owner is
the qualified owner of the property.
Sec 41 of the Transfer of Property Act, 1882, stipulates that where, with the consent of the persons
interested in immovable property, a person is the ostensible owner of such property and transfers
the same for consideration, the transfer shall not be violable on the ground that the transferor was
not authorised to make it, provided that the transferee, acted in good faith, after taking reasonable
care to ascertain that the transferor had power to make the transfer.
The doctrine of transfer of property by ostensible owner is an exception to the maxim ‘nemo dat
quod non habet’ which means he who does not have something cannot transfer it. Section 41
protects the innocent parties from the fraudulent acts of the third party. The loss arising from such
an act shall fall on the person who created or failed to prevent the fraud.
38) Write Short notes on Transfer and Transmission
39) Write Short notes on Doctrine of Lis Pendens (Provision of law a shield not a sword)
The Doctrine of Lis Pendens states that no fixed property may be transferred when a lawsuit relating
to it is pending. Sec 52 of the Transfer of Property Act, 1882, states that during the pendency of any
suit or proceeding which is not collusive and in. which any right to immoveable property is directly
and specifically in question, the property cannot be transferred or otherwise dealt with by any party
to the suit or proceeding so as to affect the rights of any other party thereto. The provision does aim
to prohibit transfers but makes the transferee’s rights subservient to that of the parties to the suit.
The main principle underlying Section 52 of the act is for necessity and expediency i.e. to maintain
and preserve the status quo in a pending case and prevent any alteration that can be brought to the
case by the involved parties.
In the case of Bellamy v. Sabine (1857), Lord Turner explained that the significance of this law is laid
upon the foundation that it would be impossible for any Court to bring a suit to a successful
termination if alienation, during the pendency of a suit, prevails.
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40) Write Short notes on Fraudulent Transfer? Explain with Exceptions.
Section 53 of the Transfer of Property Act, 1882 talks about fraudulent transfers and lays downs two
rules as under:
(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the
transferor shall be voidable at the option of any creditor so defeated or delayed.
(2) Every transfer of immoveable property made without consideration with intent to defraud a
subsequent transferee shall be voidable at the option of such transferee. However, no transfer made
without consideration shall be deemed to have been made with intent to defraud merely because a
subsequent transfer for consideration was made.
There are two exceptions to the first rule and these are:
(1) The rule will not impair the rights of a transferee in good faith and for consideration.
(2) The rule will not affect any applicable law relating to insolvency.
41) What is ‘Exchange’? What properties cannot be transferred?
In terms of Sec 118 of the Transfer of Property Act, 1882, Exchange is defined as a transaction in
which two persons mutually transfer the ownership of one thing for the ownership of another
neither thing or both things being money only.
Effectively, exchange entails one property being exchanged for another. There can be a money
component to equalise the value of the two properties.
by him.
transferred.

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42) Explain the different modes of acquiring an easement.
There are several methods by which easements may be acquired. They are:
Express grant – in writing through a deed or a will
Implied grant – implied by situation or circumstances
Presumed grant – easements by long usage
Acquisition by prescription – the effect of lapse of time creating new rights
Customary easement – not an easement in the true sense of the term but arising in favour of a class
of persons such as residents of a locality and not necessarily related to the ownership of land.
Transfer of dominant heritage - dominant heritage transferred by the act of the parties or by the
operation of law carries the incidental easement rights with it
Imputed grant – Easements established by proof of immemorial enjoyment and created by the
operation of doctrine of acquiescence when the servient owner actively encourages the dominant
owner to exercise a right.
Statute – Easements created by legislation

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43) What is the difference between actual notice and constructive notice?
Direct or express knowledge or intimation of a fact to a person is said to be an actual notice of the
fact to that person. Actual notice is formal communication of a definite fact relevant to the
transaction to one party by another party interested in the transaction. An actual notice is said to be
binding upon a person only when the following requirements are fulfilled:
(1) The knowledge must be definite and not gained through hearsay or rumours.
(2) The notice must be of such a nature a reasonable person is expected to take the notice seriously.
It must be the result of a formal communication and not a casual conversation between individuals.
(3) The notice must be provided by a person interested in the transaction.
(4) The notice must be in relation to the transfer in question, not general or irrelevant to the
transaction
Actual notice differs from Constructive Notice, which is notice of a fact, which a person with
ordinary prudence ought to have known but may not know because of his “wilful abstention from
making an enquiry or search or “gross negligence”. Constructive notice is a legal presumption in
accordance with the provisions of the Transfer of Property Act, 1882. For instance, if a document is
registered, it leads to a presumption of constructive notice of all the facts stated in that document or
which can be reasonably inferred from the contents of the document.
44) Explain Tenancy at will and Tenancy at suffrance
If a lessee remains in possession, without the consent of the landlord, after determination of the
term, he is under the common law a tenant on sufferance. It is only where a tenant will continue in
possession with the consent of the landlord that he can be called a tenant holding over or a tenant
at will. The expression "holding over" is used in the sense of retaining possession.
Under Sec 116 of the Transfer of Property Act, 1882, if a lessee of property remains in possession
thereof after the determination of the lease, and the lessor accepts rent from the lessee or
otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the
contrary, renewed, according to the purpose for which the property is leased.
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45) What are the liabilities of a mortgagee in possession
A mortgagee in possession is a lender who has exercised its right to take control of a property due to
non-payment of the mortgage money.
Sec 76 of the Transfer of Property Acy, 1882, stipulates the liabilities of a mortgagee in possession
which are:
(1) he must manage the property as an ordinarily prudent person would manage it if it were his own
(2) he must use his best endeavours to collect the rents and profits thereof
(3) he must, in the absence of a contract to the contrary, out of the income of the property, pay the
Government-revenue, all other charges of a public nature and all rent accruing on the property
(4) he must, in the absence of a contract to the contrary, make such necessary repairs of the
property as he can pay for out of the rents and profits thereof after deducting the payments
mentioned in (3) above
(5) he must not commit any act which is destructive or permanently injurious to the property;
(6) where he has insured the whole or any part of the property against loss or damage by fire, he
must, in case of such loss or damage, apply any money which he actually receives under the policy,
or. so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs,
in reduction or discharge of the mortgage-money
(7) he must keep clear, full and accurate accounts of all sums received and spent by him as
mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his
request and cost, true copies of such accounts and f the vouchers by which they are supported.
(8) his receipts from the mortgaged property, or, where such property is personally occupied by him.
a fair occupation-rent in respect thereof shall, after deducting the expenses be debited against him
in reduction of the amount (if any) from time to time due to him on account of interest
(9) when the mortgagor tenders, or deposits in manner hereinafter provided, the amount for the
time being due on the mortgage, the mortgagee must, account for his receipts from the mortgaged
property from the date of the tender or from the earliest time when he could take such amount out
of Court, as the case may be and shall not be entitled to deduct any amount therefrom on account
of any expenses incurred after such date or time in connection with the mortgaged property.
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46) What is conditional transfer? Explain difference between condition precedent and condition
subsequent
In absolute transfer, the transferee becomes an immediate owner of the property transferred,
whereas any transfer of property that vests an interest, created by a transferor, that happens to be
contingent upon the fulfilment or non-fulfilment of a condition, results in a conditional transfer.
Conditional transfers can be of two types, first, where the condition has to be complied with or
fulfilled before a transfer can be effected and secondly, where condition is to be fulfilled after the
transfer is complete. In former cases, the conditions are called conditions precedent. In fact, in such
cases, it is only if the condition is fulfilled that the transfer would take place. The other category of
conditional transfers is where the condition is subsequent to the transfer. The time for compliance
with this condition is after the transfer takes place and the property or an interest in the property
vests in the transferee.
47) Define Charge. Give any two examples of charge by operation of law.
A charge is an interest created over an immovable property for securing payment of the amount
which is due to the party. The property is not transferred to the lender and only interest is created. It
is neither a lien nor a mortgage but some features of both are present in a charge.
In terms of Sec 100 of the Transfer of Property Act, 1882, where immovable property of one person
is, by act of parties or operation of law, made security for the payment of money to another, and the
transaction does not amount to a mortgage, the latter person is said to have a charge on the
property.
From a reading of the definition, it is noted that a charge can also be created by the operation of
law. It means that the charge is created without the will or intention of the parties, but the law
enforces them to comply with certain obligations.
Examples of charge by operation of law
Vendor’s charge for unpaid purchase-money: A transferred the property in favour of B but B is not
paying the balance amount of the purchase money then a charge will be created by the operation of
law over the said property in favour of A.
Vendee’s charge for purchase-money paid in advance: B made full payment of purchase money to A
in advance. But A is neither transferring the property nor registering it in the name of B. A charge
will be created by the operation of law over the said property in favour of B.
48) Who are competent to transfer?

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49) What is meant by transmission?
Transmission of property is succession which involves passing of a right and obligation over a
property to the heirs or others consequent upon the death of the owner of the property. Thus,
transmission is different from a transfer which is covered under the Transfer of Property Act, 1882
and which deals with inter-vivos transactions undertaken by the act of living persons. Transfers
covered under the Act, are those conveying property, in present or in future, to one or more other
living persons or, to the transferor himself and one or more other living persons.
50) Define Right of Foreclosure.
The right of foreclosure is a right available to a mortgagee to recover his outstanding money. This
right is available under Section 67 of the Transfer of Property Act, 1882. After the amount has
become due, and before payment of mortgage money by mortgagor or before decree of redemption
has been passed by Court, mortgagee has a right to obtain a decree of that the mortgagor shall be
absolutely debarred of his right to redeem the property, or a decree that the property be sold. A suit
to obtain a decree that a mortgagor will be absolutely debarred from exercising his right to redeem
the mortgaged property is called a suit for foreclosure.
51) How can easement be acquired by prescription?
Prescription connotes the effect of lapse of time in creating new rights and destroying old rights. The
term easements by prescription implies the acquisition of a title or right by the owner of a property
in a manner prescribed by law.
Section 15 of The Indian Easement Act 1882 states that in order to acquire a prescriptive right of
easement in respect of access and use of light or air to and for any building or support from another
person’s land it must have been peacefully enjoyed as an easement without interruption for twenty
years. A right of way or any other easement it must have been peacefully and openly enjoyed as an
easement as of right without interruption for twenty years.
The principle described in the doctrine of prescription is to give legal recognition to rights and titles
which have been enjoyed for a long time.
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52) What is profit a prendre?
A profit a prendre is a right to take from another person’s land something that is part of the soil or is
on the soil and is the property of the landowner. The most common examples are:
(1) parts of the land itself including sand, stone, coal and minerals
(2) products growing on the land such as grass or crops—this includes grazing rights
(3) wild animals—this includes fishing rights (known as profits of piscary) and shooting rights,
together often referred to as sporting rights
Profits a prendre may be:
(1) appurtenant—a right, the benefit of which is attached to and benefits a particular estate, much
like an easement
(2) in gross—a right not attached to ownership of any particular land
Profits a prendre can be either sole or several i.e. enjoyed to the exclusion of all others even the
owner or in common i.e. enjoyed by a number of individuals, including the owner.
Profits a prendre may be:
(1) created by express reservation or grant
(2) created by statute
(3) acquired by common law prescription, or
(4) acquired under the doctrine of lost modern grant

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53) Write a Short note on Quasi easement
Quasi easement means such easements that are not essential but whose existence is implied. In
other words, it can be said that quasi the easement is not highly “essential” but it is deemed to be
necessary for the reasonable enjoyment of the property after its being separated from the main
property.
Where one person transfers immovable property to another:
According to Sec 13 (b) of the Easements Act, if an easement in other immovable property of the
transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to
such easement.
According to clause Sec 13 (d) the Easements Act, if such an easement is apparent and continuous
and necessary for enjoying the said property as it was enjoyed when the transfer took effect, the
transferor shall, unless a different intention is expressed or implied, be entitled, to such easement.
According to Sec 13 (f) of the Easements Act, if such an easement is apparent and continuous and
necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he
shall, unless a different intention is expressed or necessarily implied, be entitled, to such easement.
54) What is an Exchange? What are the rights and liabilities of the parties to an Exchange?
In terms of Sec 120 of the Transfer of Property Act, 1882, each party to an exchange, has the rights
and liabilities of a seller as to that which he gives, and the rights and liabilities of a buyer as to that
which he takes.
As per Sec 119, If any party to an exchange is by reason of any defect in the title of the other party
deprived of the thing or any part of the thing received by him in exchange, then, such other party is
liable to him for the return of the thing transferred, if still in the possession of the other party or his
legal representative or a transferee from him without consideration.
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55) What is an Exchange? What properties cannot be transferred?
by him.
transferred.
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56) What is difference between Exchange and Partition
Partition, on the other hand is a division of the property between co- parceners/co-tenants resulting
in individual ownership/tenancy of interest of each co-parceners/co-tenants.
Exchange is a form of transfer of property in which there is a transfer of each of the properties from
to the other. In an exchange, the parties acquire the right and title in the property which did not vest
in them earlier.
In partition neither is there any creation of new title nor is there any fresh acquisition of the
property. By partition the subsisting joint title of the co-owner/co-tenant in the joint property
transforms into their separate title in respect of the property which came to their share.
In conclusion, Exchange results in a transfer of property whereas partition does not result in any
transfer.
57) When can a gift be revoked
Covered in Q. 22 on page 9.
58) State any two rights of a mortgagee?
In terms of the provisions of the Transfer of Property Act, 1882, the rights of a Mortgagee include:
(1) Right to foreclosure (Sec 67) – The right to obtain a decree to debar mortgagor of his redemption
right or the right to have the property sold on default in repayment by the mortgagor.
(2) Right to sue (Sec 68) – The right to sue the mortgagor where mortgagor is personally bound or
where the mortgaged property is destroyed because of the mortgagor’s fault or mortgagor is
deprived of the property for his fault or mortgagor fails to give possession though mortgagee was
entitled to such possession.
(3) Right to sell (section 69) – In certain conditions, when the mortgagor fails to pay the mortgage
money in the stated time period, mortgagee is entitled to sell the property without a court
intervention
(4) Right to accession (section 70) – Mortgagee’s right to the additions to the property
(5) Right to renewal of lease of the mortgaged property (section 71)
(6) Right of mortgagee to spend money (section 72) for maintaining the title and upkeep of the
property
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59) What is ‘subrogation’? State properties which cannot be transferred?
The right of subrogation means when the mortgagee transfers his mortgaged debt in favour of an
assignee, the assignee will have all the rights of the mortgagee. It is the right of a person to stand in
place of the creditor. In order to be entitled to subrogation, the assignee shall pay off the entire
mortgaged debt, only on redeeming the mortgaged debt will the assignee be entitled to
subrogation. Hence there is no subrogation without redemption.
Sec 92 of the Transfer of Property Act, 1882, states that any person other than the mortgagee who
has any interest or charge upon the mortgaged property or right of redemption of the mortgaged
property or any surety for the payment of mortgaged debt or a creditor of the mortgagor or any co-
mortgagor, on redeeming the property subject to the mortgage will have the same rights as that of
the mortgagee whose mortgage he redeems may have against the mortgagor or any other
mortgagee.[vii] Hence the essence of this doctrine is that the party who pays off the mortgage debt
gets clothed with all the rights of the mortgagee.
60) What are the essentials of an easement?
The essentials of an easement are:
(1) There must be an owner or occupier of certain land (Such land is called the dominant heritage)
(2) There must be right vested in owner/occupier to do and continue to do something or to prevent
and continue to prevent something being done in respect of some other land (such other land is
called servient heritage)
(3) The right must be for the beneficial enjoyment of the land which is the dominant heritage by the
owner/occupier of it (dominant owner)
(4) The other land on which the right is to be exercises must not be owned or occupied by him but
by some other person.
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61) Write Short note on Covenants
A covenant is a provision, or promise, contained in a deed to land. Land may be subject to a

covenant which affects or limits its use. This is known as the burden of a covenant. A covenant may
give a landowner some say over what is permissible on neighbouring property. This is called the
benefit of a covenant.
A covenant annexed to land or running with the land is one which affects the nature, quality, use or
value of the immovable property. A covenant can be a pledge to perform a particular act or refrain
from doing something which has been outlined in specific terms.
Sec 40 of the Transfer of Property Act, 1882, provides that where for the more beneficial enjoyment
of his own property a third person has a right to restrain enjoyment or is entitled to the benefit of an
obligation arising out of Covenant or annexed to the ownership of immovable property, such a right
or obligation can be enforced against the transferee with notice thereof.
62) Write Short note on Actionable Claim. Give 2 examples.
Actionable claim in general terms signifies a claim or a debt for which you can take an action. It
means there’s a claim and you can approach court for enforcement of the same. The debt here is
unsecured. According to section 3 of the Transfer of Property Act, “actionable claim means a claim
to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or
pledge of movable property, or to any beneficial interest in movable property not in the possession,
either actual or constructive, of the claimant, which the civil courts recognize as affording grounds
for relief, whether such debt or beneficial interest be existent, accruing conditional or contingent”.
Examples of actionable claim;
(1) Arrears of rent
(2) Interest of the partner in a dissolved partnership
(3) Annuities under a deed of waqf
(4) Money due for goods sold
(5) A Mohammedan widow’s claim for unpaid dower
(6) A claim to rent to fall due in future
Exceptions to Actionable claim;
(1) Debts secured by mortgage of immovable property
(2) Damages for breach of contract
(3) Damages in tort
(4) A claim to mesne profits

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(5) Share in company
(6) Claim to copyright
63) Write Short note on Universal Donee
Sec 128 of the Transfer of Property Act, 1882, deals with universal donee. It states that Universal
donee is such a person who gets the whole property of the donor under a gift. The section states
that when a person transfers all his properties to a person without consideration, such donee shall
be personally liable for all the debts and liabilities of the donor.
Thus, for instance, A transfers all his movable and immovable properties to B without consideration.
A had a debt of Rupees Five lakhs before such a transfer. Here, if B accepts the gift, B shall be
personally liable to pay Rupees five lakhs to A's creditors to discharge the debt of A as he has
acquired all his properties and nothing is left to A to pay the debt.
The purpose of this section is to protect the interest of the creditors. Hence, no one can escape from
the liabilities by transferring the properties to someone. For a person to be a universal donee, he
should get all the properties of the donor, including movable and immovable properties and nothing
should be left for the donor to pay his debts. If he has any other source or property to pay his debts,
then the donee won't be universal donee and in such cases, he shall not be personally liable to pay
the debts of the donor.
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64) Write Short notes on Part Performance? What are the conditions to be fulfilled by transferee
who wants to defend or protect his possession? What conditions must be satisfied before the
doctrine of Part Performance can be applied?
The Doctrine of Part Performance, covered in Sec 53 A of the Transfer of Property Act, 1882 says
that the transferor or any person claiming under him shall be debarred from enforcing against the
transferee and the 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. The transfer should be in writing and duly signed by either the transferor or his
agent. From the terms of the document, it should be reasonably certain that the intent of the parties
is to transfer the immovable property from the transferor to the transferee. In addition, the
transferee must have, in part performance of the contract, taken possession of the property or any
part of the property. Further, the transferee must either have performed his part of the contract or
must be willing to do so.
The objective of the provision is to provide equity and prevent a transferor or his successor from
taking advantage of a fact like non-registration of the document, provided the transferee has
performed or is willing to perform his part of the contract.
The conditions to be fulfilled by the transferee to protect his possession are:
(1) He must, in part performance of the contract take possession of the property, or, any part
thereof.
(2) He must have done some act in furtherance of the contract.
(3) He must have performed or be willing to perform his part of the contract.
The other conditions to be satisfied before the doctrine of part performance can be applied are:
(1) There must be a contract to transfer for consideration any immovable property.
(2) The contract must be in writing signed by the transferor, or by someone on his behalf.
(3) The writing must be in such words from which the terms necessary to construe the transfer can
be ascertained.
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65) What is “Sale” & “Contract of Sale”?
Sale and Contract for Sale are defined in Section 54 of the Transfer of Property Act, 1882.
Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised. Thus, in Sale, there is a transfer of interest.
Contract for Sale of immovable property is a contract that a sale of such property shall take place on
terms settled between the parties. It does not, of itself, create any interest in or charge on such
property.
66) How sale is made?
Section 54 further lays down the manner in which a sale of immovable property should be made. In
case of tangible immovable property of value Rs. 100 hundred or more, a sale can be made only by a
registered instrument which is commonly a Sale Deed. When the tangible immovable property is of
value less than Rs. 100, the sale can be made by a registered instrument or by the delivery of the
property. The delivery of a tangible immovable property is said to have taken place when the seller
places the buyer in possession of the property.
The seller and buyer (parties to the sale) must be competent to transfer: Both the seller and buyer
must be competent to contract under section 10 of the Contract Act, i.e the parties to transfer
should not be; a minor, a person of unsound mind and a person disqualified by law.
Subject matter of sale: The subject matter of sale must be transferable immovable property.
Consideration of price: A transfer of ownership will be sale only when the consideration for it is paid
or promised or partly paid or partly promised.
67) What is mean by marshalling by subsequent purchaser?
Sec 56 of the Transfer of Property Act, 1882, deals with Marshalling by subsequent purchaser. The
section states that, if the owner of two or more properties mortgages them to one person and then
sells one or more of the properties to another, the buyer is entitled to have the mortgage debt
satisfied out of the properties not sold to him. However, this is subject to anything to the contrary in
a contract with him and also subject to the rights of other persons who have acquired an interest in
any of the subject properties.
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68) What are essential characteristics of a “lease”?
The essentials of a lease are:
(1) There must be an immovable property
(2) The transfer of right must only involve the right to use the property i.e. possession and not
ownership
(3) The consideration for lease shall be periodical payment which is either rent or premium or both
(4) A lease for a period of more than a year can only be made through a registered document.
The characteristics of a lease are as under:
(1) A lease is a transfer of an interest in a specific immovable property
(2) A lease is both transferable and heritable
(3) A lease does not come to an end on either the death of the lessor or lessee
(4) A lease is unaffected by the transfer of the property by sale in favour of a third party.
69) Write a short note on forfeiture of lease
Under Sec. 111( g) of the Transfer of Property Act, 1882, a lease of immovable property determines
by forfeiture; in any of the following situations:
(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor
may re-enter
(2) in case the lessee renounces his character as such by setting up a title in a third person or by
claiming title in himself
(3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the
happening of such event
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his
intention to determine the lease.
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70) What is ‘Gift’?
(1) A gift is the transfer of certain existing movable or immovable property capable of being
transferred.
(2) It is made voluntarily and without consideration, by one person, called the donor, to another,
called the donee.
(3) It has to be accepted by donee (the person to whom the gift is made) and the acceptance must
be made during the lifetime of the donor and while he is still capable of giving.
(4) If the donee dies before acceptance, the gift is void.
(5) Gift for an immovable property must be through a registered instrument (commonly a gift deed).
(6) Gift for movable property may be through a registered instrument or by delivery.
71) What are the essentials of a Gift & how are gifts affected (or is it effected – have answered
both in any case)?
Essentials of a valid gift:
(1) The gift is transfer inter vivos (between living persons) of any movable or immovable property.
(2) The gift must be made voluntarily by the donor.
(3) The gift must not behold any consideration.
(4) The gift must be made by the donor to the donee.
(5) The gift of immovable property must be registered and the movable property can be made valid
by delivery of possession or registered deed.
(6) The gift must be accepted by the donee and the acceptance must be during the lifetime of the
donee and the acceptance must be given while the donee was still capable of giving.
(7) Any acceptance after the lifetime of the donee is void.
Thus, as can be noted from the above, a gift can be effected in the case of immovable property
through a registered deed and in the case of movable property either by registered deed or by
delivery of possession.
A gift is affected adversely if any of the conditions set out above are not fulfilled.
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72) What are the different types of Gifts?
The two kinds of gifts covered in the Transfer of Property Act, 1882, are void gifts and onerous gifts.
Void gifts include:
(1) Gift made for an unlawful purpose (Sec 6)
(2) Gift depending on condition, the fulfilment of which is impossible (Sec 6)
(3) Where the done dies before acceptance (Sec 122)
(4) Gift by a person incompetent to contract e.g. a minor, lunatic etc. (Sec 7)
(5) A gift comprising existing and future property is void as to the latter (Sec 124)
A gift, burdened with an obligation is an onerous gift e.g. when shares in a company subject to heavy
calls form the subject matter of the gift.
As per Sec 127, where a gift is in the form of a single transfer to the same person of several things of
which one is, and the others are not, burdened by an obligation, the donee can take nothing by the
gift unless he accepts it fully.
73) What is onerous gift
A gift, burdened with an obligation is an onerous gift e.g. when shares in a company subject to heavy
calls form the subject matter of the gift.
As per Sec 127, where a gift is in the form of a single transfer to the same person of several things of
which one is, and the others are not, burdened by an obligation, the donee can take nothing by the
gift unless he accepts it fully.
74) Write a Short note on Kinds of Property
There are different types of property in India which can be classified into:
(1) Movable and Immovable Property – Immovable property Includes land, buildings, things attached
to earth etc. In other words, those that are not movable from one place to another. Movable
property is all property other than immovable property meaning those that can be moved.
(2) Tangible and Intangible Property – Tangible properties are those that can be touched and felt. or
example furniture, computer, jewellery, cupboard, goods etc. Intangible properties cannot be
touched and felt. For example trademarks, copyrights, patents.
(3) Private and Public Property – Public property is that owned by the public as such in some
governmental capacity. The private property is that which is owned by private person.
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(4) Personal and Real Property – Personal property is anything tangible or intangible which belongs
to an individual. Real property includes land, things attached to the land and any improvement or
development done on that land.
(5) Corporeal and Incorporeal Property – Corporeal property means property that can be felt and
touched that is, it is tangible and visible. For example furniture, car, land, trees etc. Incorporeal
property is also called as intellectual property. It cannot be touched or seen that is it is intangible
property. For example, trademarks, copyrights, patents etc.
75) What is meant by expression "attached to the earth"?
As per Sec 3 of the Transfer of Property Act, 1882, “attached to the earth” means –
(a) rooted in the earth, as in the case of trees and shrubs
(b) imbedded in the earth, as in the case of walls or buildings or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is
attached.
76) Define 'Transfer of Property'. What are the essentials of a valid Transfer? What property may
be transferred? What are the Ten exceptions?
In terms of Sec 5 of the Transfer of Property Act, 1882, “transfer of property” means an act by.which
a living person conveys property, in present or in future, to one or more other living persons, or to
himself, or to himself and one or more other living persons.
Essentials of a Valid Transfer of Property as per the Transfer of Property Act, 1882.
(1) The transfer of property must take place between two or more living persons.
(2) The property transferred must be transferable (Sec 6).
(3) The transfer must not be opposed to the nature of the interest affected thereby or for an
unlawful object or consideration or to a person legally disqualified to be a transferee (Sec 23).
(4) The transferor must be competent to contract and entitled to transfer property or authorized to
dispose of transferable property which is not his own (Sec 7).
(5) The transfer must be made in the mode prescribed by the Act. Thus, all necessary attestation and
registration must be complied with (Sec 9).
(6) The transfer must not offend the rule against perpetuity (Sec 14)
(7) If, on transfer, interest is created in favour of an unborn child subject to the prior interest created
by the same transfer, it must exhaust the whole of the remaining interest of the transferor(Sec 13).
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(8) If the transfer is conditional, the condition must not be illegal, impossible, immoral or opposed to
public policy (Sec 25).
As per Sec 6, property of any kind may be transferred except for the following:
(1) The chance of heir-apparent succeeding to an estate called as spes successionis. Such a chance is
not property as contemplated by that Act. It implies to a mere hope of succession.
(2) The chance of a relation obtaining legacy on the death of a kinsman cannot likewise be
transferred
(3) Any other mere possibility of a like nature that is of a nature similar to those mentioned above
cannot be transferred.
(4) A right of re-entry cannot be transferred to anyone except the owner of the property affected
thereby.
(5) An easement apart from the dominant heritage cannot be transferred.
(6) An interest in the property restricted in its enjoyment to the owner personally, for example,
religious offices, services tenures, an inalienable raj, etc. cannot be transferred.
(7) A right to future maintenance in whatsoever manner arising secured or determined cannot be
transferred.
(8) A mere right to sue is not capable of being transferred. Claims for past mesne profits, for
damages for breach of contract, for suing an agent for accounts and for pre-emption are all mere
rights to sue which cannot be transferred.
(9) A public office or the salary of a public officer whether before or after it has become payable
(10) Stipends allowed to the military, naval, air force and civil pensioners of Government as well as
political pensions cannot be transferred.
(11) No transfer can be made which is opposed to the nature of interest affected thereby. Thus, an
attempted ‘transfer’ of a service inam by the Inamdar or a purported ‘transfer’ of res nullius like air
or water from a river, will be void.
(12) No transfer can be made of an unlawful object or consideration.
(13) No transfer can be made to a person who is legally disqualified to be a transferee.

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77) Discuss whether Surrender, Charge, Exchange, Partition are transfers?
Surrender refers to the relinquishment of one’s ownership rights and claims in a property in favour
of another person. Surrender or relinquishment is a release deed and shows extinguishment of a
right. Hence it cannot be considered as a transfer and is not defined as such under the Transfer of
Property Act, 1882.
Another type of Surrender is effected through a Deed of Surrender, which is a legal document which
‘transfers’ property for a given time period provided certain conditions are met. A Deed of Surrender
lets one party, such as a lessor or renter, relinquish his claims on a particular piece of property to a
landlord or other party that holds the underlying title. Surrender, generally involves the merging of a
lesser interest into a greater interest in such a manner that the greater interest is not enlarged. In
Natwarlal v. Dadubhai (56 BLR 447), it was held that the surrender of a life estate by a Hindu widow
was not a transfer since it amounts to a self-effacement by the widow and accelerates the
succession to her husband’s estate.
A Charge means an interest or right which a lender or creditor obtains in an asset. A charge on the
property is not a transfer. In Gobinda v. Dwarkananth (35 Cal 837), the Court held that a charge on a
property is not a transfer within the meaning of Sec 5 of the Transfer of Property Act, 1882 as the
only right created by such a charge is right to payment out of the property subject to the charge.
Exchange as per Sec 118 of the Transfer of Property Act, 1882, is defined 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.”
A transfer of property in completion of an exchange can be made only in manner provided for the
transfer of such property by sale. The definition very clearly indicates that an Exchange is a transfer
and in fact, mandates the completion in the manner provided for a sale. An Exchange entails the
conveyance of property and each of the parties to an exchange obtain a new property
Partition is not considered as a transfer of property because nothing new is obtained by the co-
sharer on a partition. His specific share, which vested in him earlier, is merely separated. While
different courts had given differing decisions on partition, Supreme Court ruled that partition was
not a transfer of property in the case of Commissioner of Income Tax v. Keshavlal (AIR 1965 SC 866).
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78) Who is an heir-apparent
An heir apparent is a person who is first in an order of succession and cannot be displaced from
inheriting by the birth of another person. An heir presumptive, by contrast, is someone who is first in
line to inherit a title but who can be displaced by the birth of a more eligible heir.
In transfer of property, the heir apparent is an important factor in the doctrine of spes successionis,
which means the hope of succeeding to the corpus of a person after his death. This doctrine states
about a mere possibility or chance of a person to succeed to an estate of another person after his
death. It is mainly an expectancy of succession of an heir apparent or any other relation to succeed
in the Principal’s property by way of succession or will respectively. Such expectancy does not
amount to an interest in property and cannot be made the subject matter of a transfer.
79) What property cannot be transferred? What are exceptions?
As per Sec 6, the following kinds of property cannot be transferred:
(1) The chance of heir-apparent succeeding to an estate called as spes successionis. Such a chance is
not property as contemplated by that Act. It implies to a mere hope of succession.
(2) The chance of a relation obtaining legacy on the death of a kinsman cannot likewise be
transferred
(3) Any other mere possibility of a like nature that is of a nature similar to those mentioned above
(4) A right of re-entry cannot be transferred to anyone except the owner of the property affected
thereby.
(5) An easement apart from the dominant heritage cannot be transferred.
(6) An interest in the property restricted in its enjoyment to the owner personally, for example,
religious offices, services tenures, an inalienable raj, etc. cannot be transferred.
(7) A right to future maintenance in whatsoever manner arising secured or determined cannot be
transferred.
(8) A mere right to sue is not capable of being transferred. Claims for past mesne profits, for
damages for breach of contract, for suing an agent for accounts and for pre-emption are all mere
rights to sue which cannot be transferred.
(9) A public office or the salary of a public officer whether before or after it has become payable
(10) Stipends allowed to the military, naval, air force and civil pensioners of Government as well as
political pensions cannot be transferred.
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(11) No transfer can be made which is opposed to the nature of interest affected thereby. Thus, an
attempted ‘transfer’ of a service inam by the Inamdar or a purported ‘transfer’ of res nullius like air
or water from a river, will be void.
(12) No transfer can be made of an unlawful object or consideration.
(13) No transfer can be made to a person who is legally disqualified to be a transferee.
The above are exceptions to the general rule that all property can be transferred. Actionable claims
are however, transferable property. Actionable claims are unpaid, unsecured debts.
80) What persons are competent to transfer property
Covered in Qs. 6 On page 2
81) What are accessory rights
Accessory rights are appurtenant to other rights and they have a beneficial effect on the principal
rights. For example, a security is accessory to the rights secured. Servitude is accessory to the
ownership of the land for whose benefit it exists.
In respect of property, Sec 24 of the Easements Act, 1882, defines accessory rights as those acts
necessary to secure the full enjoyment of an easement. An easement is a nonpossessory right to use
and/or enter onto the real property of another without possessing it for the enjoyment of one’s own
property.
82) What is oral transfer
A transfer effected orally or verbally without a written document or instrument is referred to as an

oral transfer.
Section 9 of the Transfer of Property Act, 1882 talks about oral transfer of property. It states that,
“A transfer of property may be made without writing in every case in which a writing is not expressly
required by law.”
The general principle applicable in Indian transfer of property law, is that any transfer can be oral
unless required by law to be otherwise. This principle was emphasized in the well-known case of
Sarandaya Pillay v Sankarlinga Pillai [(1959) 2 MLJ 502].
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83) Write a Short note on Conditions restraining alienation of Property
Sec 10 of the Transfer of Property Act, 1882, lays down that where the transferee is absolutely
restrained from transferring his interest in his property to another person because of a condition
which came along when the property was transferred to the transferee, then this condition will be
made void. The transfer, from the transferor to the transferee would remain valid.
This is commonly known as the ‘rule against alienability’ but is subject to two exceptions as under:
(1) Conditions imposing restrictions are valid in the case of a lease, where the condition is for the
benefit of the lessor or those claiming under him.
(2) When the property is to be transferred to a married woman, who is not a Hindu, Mohammedan
or Buddhist, then the condition restricting alienation can be valid.
It is important to note that partial restraints are not necessarily void. In Mata Prasad v. Nageshwar
Sahai [(1927) 47 All 484], there was a dispute regarding succession between nephew and widow. A
compromise was formed that the widow had possession of the property while the title for the same
was given to the nephew with the condition that he was restricted from alienating the property
during the widow’s lifetime. It was held that the compromise and the condition were valid and
prudent in the present case.
84) Write a Short note on partial restraint on transfer
A partial restraint is a condition which partially takes away the right of the transferee to dispose of
his interest in the property. Here, the right is not taken away substantially. Section 10 does not
explicitly talk about partial restraints. A condition imposing partial restriction is valid.
For instance, a partial restraint that restricts transfers only to a class of persons is not invalid.
However, if the transfer is restricted to being allowed only to specific individuals, then it is an
absolute restraint and hence, void. This was reiterated in the famous case of Zoroastrian Co-
operative Housing Society Ltd v. District Registrar Co-operative Societies[(2005) 5 SCC 632] a society
with the object of constructing houses for residential purposes had a bye law which stated that only
Parsis can be members of the society. There was also a condition that no member could alienate the
house to non-parsis. The Supreme Court held that when a person accepts the membership of a co-
operative society by submitting himself to its bye-laws and places on himself a qualified restriction
on his right to transfer property by stipulating that same would be transferred with prior consent of
society to a person qualified to be a member of the society it could not be held to be an absolute
restraint on alienation offending Section 10 of the Transfer of Property Act.
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85) Discuss the statement : The law always favours alienation of property rather than its
accumulation
Since it is a principle of economics that wealth should be in free circulation to get the greatest
benefit from it, there are sections in the Transfer of Property Act, 1882, which provide that ordinarily
there should be no restraints on alienation.
Sec 10 (2) provides that where property is transferred subject to a condition or limitation absolutely
restraining the transferee from parting with or disposing of his interest in the property, the condition
or limitation is void. There are some exceptions but this is the general rule which essentially
underscores the law’s emphasis on circulation as opposed to condition which limits such circulation.
Sec 11 talks about restriction repugnant to interest created. Under Section 11, when once an
interest has been created absolutely in favour of a person, no fetters can be imposed on its full and
free enjoyment.
Sec 14 lays down the provision containing the rule against perpetuity and effectively puts a
limitation for a transferor to create an interest beyond a finite period of time.
These clauses go to show that the law favours alienation as that helps in the circulation of property
as opposed to the accumulation of the same.
86) Write a Short note on Direction of accumulation of income
Doctrine of accumulation is a way to restrain the enjoyment of property. According to Section 17(1)
of the Transfer of Property Act, 1882, if the conditions of the transfer of property direct the income
arising from the property to be accumulated for a period of time that is longer than the lifetime of
transferor or for a period of 18 years, whichever is more, shall be void. This section sets limits for the
direction of accumulation such as lifetime of transferor and as well as a time period of 18 years. This
principle or doctrine for the direction of accumulation is derived from the case of Thellusson v.
Woodford [(1799) 4 Ves 227].
However, there are exceptions to the above restriction. These are as under:
(1) For the payment of the debts of the transferor
(2) For the provision of portion for the children or remoter issue of transferor or any other person
taking interest under the transfer
(c) For the provision of maintenance of property transferred
(d) For the benefit of public or any other object beneficial to mankind e.g. charitable purposes.
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87) Write a Short note on Transfer for benefit of unborn child
Section 13 of the Transfer of Property Act, 1882, reads as follows:
“Where, on a transfer of property, an interest therein is created for the benefit of a person not in
existence at the date of transfer, subject to a prior interest created by the same transfer, the interest
created for the benefit of such person shall not take effect, unless it extends to the whole of the
remaining interest of the transfer in the property.”
The above provision gives effect to the general rule that a transfer can be effected only between
living persons. A transfer can only be made to an unborn child in the womb but not to a child not
conceived.
Thus, to transfer property to an unborn child the following are the pre-requisites:
(1) The transfer cannot be directly done in favour of the unborn child. There must be prior interest
created in favour of a living person for his lifetime
(2) The transfer to the unborn child has to be for the whole of the remaining interest i.e. an absolute
interest
(3) The unborn child child will get possession after the death of the prior interest holder.
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88) What is Apportionment
The expression ‘apportionment’ means division of a common fund between several claimants. It is
classified into two types- ‘Apportionment by time’ and ‘Apportionment by estate’-:
Apportionment by time
Sec 36 of the Transfer of Property Act, 1882 states that “In the absence of a contract or local usage
to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature
of income shall upon the transfer of the interest of the person entitled to receive such payments, be
deemed, as between the transferor and transferee, to accrue due from day to day and
apportionable accordingly but to be payable on the days appointed for the payment thereof”.
The section clearly lays down that, when a property yields income, which is periodical such
periodical income shall be accrued and apportioned on a day to day basis.
Apportionment by estate
Section 37 deals with this kind of apportionment stating that “When, in consequence of a transfer,
property is being divided and held in several shares, and thereupon the benefit of any obligation
relating to the property as a whole passes from one to several owners of the property, the
corresponding duty shall, in the absence of a contract, to the contrary amongst the owners, be
performed in favour of each of such owners in proportion to the value of his share in the property,
provided that the duty can be severed and that the severance does not substantially increase the
burden of the obligation the duty shall be performed for the benefit of such one of the several
owners as they shall jointly designate for that purpose”.
In other words, when the whole of a property is transferred to more than one person, the obligation
attached to the property must then be performed by each of the several owners in proportion to
their respective share in the property.
89) Discuss transfer by an unauthorised person who subsequently acquires interest in the property
transferred
In terms of Sec 43 of the Transfer of Property Act, 1882, where a person:
- fraudulently or erroneously represents that he is authorised to transfer immovable property and
- proposes to transfer such property for consideration
Such transfer operates, at the option of the transferee, on any interest which the transferor may
acquire in such property at any time during which the contract of transfer subsists.
The principles of law on which this section is based is a well-known rule of estoppel or feeding the
grant by estoppel. This means that if a man who has no title whatever to property, grants it by
conveyance, which would carry the legal estate, and he subsequently acquires an interest sufficient
to satisfy the grant, the estate instantly passes. An estoppel arises against him by reason of his
conduct, and the law obliges him to ‘feed’ that estoppel. This principle however, is not applicable to
property inalienable by law.
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90) Define an English Mortgage and discuss the mortgagee's power to sell the mortgaged property
without the intervention of the court
English mortgage is where the mortgagor –
(1) binds himself to repay the mortgage-money on a certain date and
(2) transfers the property absolutely to the mortgagee, but subject to a proviso that he will re-
transfer it to the mortgagor upon payment of the mortgage money as agreed.
Thus, the characteristics of an English mortgage are:
(1) It is followed by delivery of possession
(2) There is a personal covenant to pay the amount
(3) It is effected by an absolute transfer of property, with a provision for re-transfer on repayment
(4) Power of sale without court intervention is provided in certain circumstances
The mortgagee’s power to sell the property without the intervention of the court is laid down in Sec
69 of the Transfer of Property Act, 1882 – clause (a) of sub-section (1) lays down the following
conditions for the acquisition of the power, namely:
(1) that the mortgage must be an English mortgage and,
(2) neither the mortgagor nor the mortgagee must be a Hindu, Mohammedan or Buddhist, or of a
member of any other race, sect, tribe, or class specified in this behalf by the State
The power to sell must be expressly conferred in the mortgage deed and the mortgagee should be
either the government or a property should be situate in Bombay/Kolkata/Madras or any town
specified by the State Government.
Sec 69(2) (a) and Sec 69(2) (b) specify the conditions for exercise of the power. These are:
(1) Notice in writing requiring payment of the mortgage-money has been served on the mortgagor
(i) default has been made in payment of the principal money, or of part thereof, and
(ii) such default has continued for three months after such service; or
And/or
(2) Some interest under the mortgage amounting to at least Rs. 500 is
(i) in arrears, and
(ii) remains unpaid for three months after becoming due.

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91) What are the rights and liabilities of a mortgagor
The rights and liabilities of a mortgagor under the Transfer of Property Act, 1882 are:
Rights
(1) Right to Redeem [Section 60]
(2) Right to Transfer to Third Party [Section 60A]
(3) Right to Inspection and Production of Documents [Section 60B]
(4) Right to Redeem Separately or Simultaneously [Section 61]
(5) Right of Accession to Mortgaged Property [Section 63]
(6) Right to Improvements to Mortgaged Property [Section 63A]
(7) Right to the Renewal of Mortgaged Leases [Section 64]
(8) Right to Lease [Section 65A]
Liabilities
(1) Liability to Transfer Interest [Section 65(a)]
(2) Liability to Defend the Title [Section 65(b)]
(3) Liability to Pay Public Charges [Section 65(c)]
(4) Liability to Abide by Conditions of a Lease [Section 65 (d)]
(5) Liability to Discharge Principal Money and Interest [Section 65 (e)]
(6) Liability for Waste (Not allowing property to deteriorate) by Mortgagor in Possession [Section 66]
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92) What is redemption? Who can redeem a mortgage besides the mortgagor
Redemption is the process of taking back of the property mortgaged by the mortgagor from the
mortgagee. It may include receiving back all the documents related to the property and/or
possession of that property. Section 60 of the Transfer of Property Act, 1882 confers this right of
redemption. It lays down that after the principal money becomes due, the mortgagor can tender the
money and require the mortgagee to deliver the possession of the property or the deed/documents
to him .
As per Sec 91 of the Transfer of Property Act, 1882, the following persons, other than the mortgagor
cam also redeem a mortgage:
(1) any person (other than the mortgagee of the interest sought to be redeemed) who has any
interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same
(b) any surety for the payment of the mortgage-debt or any part thereof
(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a
decree for sale of the mortgaged property.]
93) Write a short note on Clog on redemption
Clog on redemption refers to debarring a mortgagor from exercising his right of redemption. It is a
restriction imposed on the mortgagor to redeem his mortgaged property by paying his mortgaged
debt. The right to redemption is absolute and cannot be fettered by imposing any condition. Any
condition that hinders the right of redemption will be null and void.
The maxim ‘once a mortgage always a mortgage’ means that there can no covenant that modifies
the character of the mortgage agreed between the parties that would stop the mortgagor to redeem
his property back on payment of the principal and respective interests. The basis of this doctrine lies
in the exercise equity, justice and good conscience. If a person, in stringent financial condition, had
taken the loan and placed his properties as security therefor, the situation cannot be exploited by
the person who had advanced the loan.
Long term mortgages are common in cases of usufructuary mortgages. A term of 95 years or 100
years would definitely extend beyond one’s lifetime and superficially seems like a clog. Taking
cognizance of the same, the Supreme Court has ruled that only by virtue of lengthy period, a
mortgage would not amount to a clog, there must exist a presence of undue advantage or fraud to
term it as a clog.
In Vadilal Chhaganlal v. Gokaldas Mansukh [AIR 1953 Bom 408], the mortgage agreement provided
that it would subsist for 99 years and the mortgagee would be allowed to construct any structure on
the property without any limit on the cost. The Supreme Court reasoned that it would be beyond the
ability of the mortgagor to repay the principal money along with the interests and the construction
expenses. It was held that both the conditions amounted to a clog on the mortgagor’s right of
redemption.
54
94) Write short note on easement and its elements
As per Sec 4 of the Easements Act, 1882, an easement is a right which the owner or occupier of
certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent something being done, in or upon, or in respect
of, certain other land not his own. The term land includes building and other immovable property.
The essentials of an easement are:
(1) There must be an owner or occupier of certain land (Such land is called the dominant heritage)
(2) There must be right vested in owner/occupier to do and continue to do something or to prevent
and continue to prevent something being done in respect of some other land (such other land is
called servient heritage)
(3) The right must be for the beneficial enjoyment of the land which is the dominant heritage by the
owner/occupier of it (dominant owner)
(4) The other land on which the right is to be exercised must not be owned or occupied by him but
by some other person.
95) Who is a riparian owner
A riparian owner is the one who owns land along a waterbody (river or lake etc.) and whose
boundary is the water in that waterbody.
Certain rights enjoyed connected to the land owned by a riparian owner, are called riparian rights.
These rights exclusively belong to the riparian owners who reside along the shore or banks of the
waterbody.
Such rights could include:
(1) Right to use the bank or shore of a water bed
(2) Access to and from the water
(3) Building of structures
(4) Swimming
(5) Boating
(6) Right to fishing
(7) Right to navigation
(8) Use of water
(9) Protection from soil erosion
(10) Drinking and for domestic purposes

55
96) Explain the different types of easement
According to section 5 of Indian Easements Act, 1882, the types easements are –
(1) Continuous Easement – Easements which are continuous such as right to receive light and air,
right to flow water on others land by drainage, right of drainage passing through others land etc.
(2) Discontinuous Easement – The easement for whose enjoyment human act is necessary is known
as discontinuous Easement. Examples are right to passage, right to throw garbage on others land,
right to flow water etc.
(3) Apparent Easement – An easement which is apparent or visible such as right to flow water from
drainage, doors, windows etc
(4) Non- Apparent Easement – An easement which is not apparent not easily visible such as right to
stop construction above certain height
97) Distinguish between Easement and Profit-prendre
An easement is a right which the owner or occupier of certain land possesses, as such, for the
beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue
to prevent something being done, in or upon, or in respect of, certain other land not his own. The
term land includes building and other immovable property.
A profit a prendre is a right to take from another person’s land something that is part of the soil or is
on the soil and is the property of the landowner.
An easement confers merely a convenience to be exercised over the neighbouring land without any
participation in the profit of it like a right of way. If accompanied with participation in the profits of
neighbouring soil, they are known as profit-a-prendre. Examples being right to fishing, right to fruits
of trees etc.
98) Define servient heritage and servient owner
The right vested in the owner/occupier of a land to do and continue to do something or to prevent
and continue to prevent something being done in respect of some other land is an easement. While
the owner/occupier’s land, the enjoyment of which is dependent on the right over the other land is
called the dominant heritage, the other land over which the right is available is called servient
heritage.
The owner of the other land i.e. the owner of the servient heritage is called the servient owner.
56
99) Write a short note on natural rights
Natural rights are those rights which are incidental to the enjoyment of property and are part of the
total content of the proprietary rights. The distinction between easements and natural rights is not
very easily and clearly discernible. It is perhaps better clarified through examples. For instance, the
right of X, who owns land on a higher level, to discharge his surplus water on Y’s land which is at a
lower level, is a natural right not an easement. Similarly, the right of support for one’s own land,
unencumbered by construction from adjoining land, is a natural right.
Natural rights normally arise out of the geographical configuration of the property and are inherent
in the property itself. The right of every owner of land to an unpolluted flow of air and to light are
the commonest examples of natural rights.
100) Write a short note on Acquisition of easements
101) How can an easement be imposed
In terms of Sec 8 of the Easements Act, 1882, an easement may be imposed by any one in the
circumstances, and to the extent, in and to which he may transfer his interest in the heritage on
which the liability is to be imposed.
As per the Act, easements can be imposed by (1) Servient owners, without lessening the utility of an
existing easement (2) Lessors, without derogations of lessee’s rights (3) Mortgagors, without making
the security insufficient and Lessees not beyond period of lease.
Easements can be created by
(1) grant (Sec 8)
(2) necessity or quasi-necessity (Sec 13)
(3) prescription – e.g. light & air enjoyed uninterrupted for 20 years or more (Sec 15)
(4) lost grant presumed from immemorial user
(5) custom (Sec 18)
(6) transfer of dominant heritage (Sec 19)
(7) legislation – e.g. rights granted under Land Acquisition (Mines) Act
(8) operation of the doctrine of acquiescence

57
102) Write a short note on Easements of necessity
Section 13 of the act deals with easements of necessity, which consists of the circumstances where
the owner or occupier of a property cannot use his property without exercising the right of
easement over the servient heritage. Thus, absolute necessity is the test and the convenience. A
right of way is a commonly occurring easement of necessity.
Connected therewith are easements of Quasi-necessity. Easements of Quasi-necessity are those

arising out of circumstances, such as when common properties are converted into tenements by way
of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied
grant of right of easement. Such easements are not an absolute necessity but if such easement is not
available the property cannot be enjoyed as the was enjoyed before the severance.. Such easement
must be apparent, continuous and necessary. An example is the easement of drainage.
103) Explain doctrine of lost grant
The Doctrine of Lost Grant implies that a long, continuous use or possession points to a legal
presumption that the right to use was previously conveyed to the user and that the physical
instrument of conveyance has been lost.
Lost grant is, in essence, a legal fiction of an easement based on prescription. Such a grant is
presumed to have had a legal origin. In modern times this doctrine is used as an ancillary to to a
claim to a prescription, as also in cases where the facts and circumstances of a case do not point to
an acquisition by prescription.
This doctrine is useful mainly where enjoyment cannot otherwise be accounted for. If the facts
suggest a simpler and more natural explanation the need to use the doctrine of lost grant is
obviated.
58
104) Distinguish between customary easement and prescriptive easement
(1) A customary easement does not depend upon proof of peaceable enjoyment for 20 years, which
is a necessary condition in the case of a prescriptive easement.
(2) A customary easement has its origin in custom while a prescriptive easement has its origin in
prescription.
(3) A customary easement’s birth is localised and hence can be enjoyed only in that locality. A
prescriptive easement is not so limited.
(4) A customary easement belongs to a class or locality whereas a prescriptive easement is personal.
(5) A customary easement must be reasonable as it must satisfy the conditions of a custom. There is
no such condition in a prescriptive easement.
(6) A prescriptive easement is lost by interruption under conditions laid down in Sec 15 of the
Easements Act, 1882. A customary easement, though it may cease on interruption, need not satisfy
all the conditions of Sec 15.
105) Write a short note on Suspension and revival of easements
Sec 49 of the Easements Act, 1882 provides that an easement is suspended when the dominant
owner becomes entitled to possession of the servient heritage for a limited interest therein or when
the servient owner becomes entitled to possession of the dominant heritage for a limited interest
therein. The section embodies the well-established rule of English law that although unity of estate
extinguishes an easement, mere unity of possession only suspends the easement.
Sec 51 provides for the revival of an easement extinguished under Sec 45 i.e. by the complete
destruction of either heritage. In all such cases, the easement revives if the status quo is restored
within 20 years. The three specific cases laid out in the section are:
(1) If the destroyed heritage, dominant or servient, is restored naturally by the deposit of alluvion
within 20 years
(2) If the servient heritage destroyed is a building, and if the building is rebuilt at the same site
within 20 years
(3) If the dominant heritage destroyed is a building, and if the building is rebuilt at the same site
within 20 years.
59
106) Define License under India Easement Act, 1882
107) What is License? Explain the important features of license?
From the definition above, the following 3 characteristics of a license emerge:
(1) A person must grant to another a right to do or continue to do something in or upon the
immovable property of the grantor.
(2) Such act should, in the absence of the grant referred to in (1) above be unlawful.
(3) Such a right should not amount to an easement or an interest in the property.
The other features of a license are:
(1) A license is not connected to the ownership of the property.
(2) The license is merely a personal privilege unrelated to any other property of the licensee.
(3) A license is not transferable.
(4) A license is not heritable since it is strictly personal.

60
108) Explain revocation of a license and give 2 instances where a license is deemed to have been
revoked
As a license originates in a permission, it is, by its very nature revocable. However, Sec 60 of the
Easements Act, 1882 specifies 2 situations when the license cannot be revoked. These are:
(1) If the license is coupled with a transfer of property and such transfer is in force; or
(2) the licensee, acting upon the license, has executed a work of a permanent character and incurred
expenses in the execution.
As per Sec 62, a license is deemed to have been revoked in the following situations:
A license is deemed to be revoked—
(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the
property affected by the license;
(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;
(c) where it has been granted for a limited period, or acquired on condition that it shall become void
on the performance or non-performance of a specified act, and the period expires, or the condition
is fulfilled;
(d) where the property affected by the license is destroyed or by superior force so permanently
altered that the licensee can no longer exercise his right;
(e) where the licensee becomes entitled to the absolute ownership of the property affected by the
license;
(f) where the license is granted for a specified purpose and the purpose is attained, or abandoned,
or becomes impracticable;
(g) where the license is granted to the licensee as holding a particular office, employment or
character, and such office, employment or character ceases to exist;
(h) where the license totally ceases to be used as such for an unbroken period of twenty years, and
such cessation is not in pursuance of a contract between the grantor and the licensee;
(i) in the case of an accessory license, when the interest or right to which it is accessory ceases to
exist.

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1

TRANSFER OF PROPERTY ACT

34 What is dominant heritage? 22

64 Write Short notes on Part Performance? What are the

90 Define an English Mortgage and discuss the

1) What are the rights of an unpaid seller?

2) State the difference between transfer and transmission.

3) Define constructive notice?

4) What does “attested” mean?

5) What is conditional transfer?

6) Who are competent to transfer?

7) What is difference between fradulent transfer and a benami transfer

8) Define right of redemption.

9) Who may impose easement?

10) How can Easement be acquired by prescription?

11) Write Short notes on Part performance

13) Write Short notes on Doctrine of Election

Illustration: By a deed X (transferor) gives to Y (transferee) a farmhouse belonging to Z (owner), and

14) Write Short notes on Rule against Perpetuity

(1) There is a transfer of property.

The essential difference between a Lease & a License are as under:

16) Write Short notes on Extinction of Easement

(1) Extinction by dissolution of right of servient owner

(2) Extinction by release

(3) Extinction by revocation

(4) Extinction on expiration of limited period or happening of dissolving condition

(5) Extinction on termination of necessity

(6) Extinction of useless easement

(7) Extinction by permanent change in dominant heritage

(8) Extinction on permanent alteration of servient heritage by superior force

(9) Extinction by destruction of either heritage

(10) Extinction by unity of ownership

(11) Extinction by non-enjoyment

(12) Extinction of accessory right

17) What is principle of marshalling?

18) State properties which cannot be transferred?

(3) An easement cannot be transferred apart from the dominant heritage.

(6) A mere right to sue cannot be transferred.

19) Define mortgage

20) Explain in brief the different types of mortgages.

The different types of mortgages are:

21) What are the essential elements of a gift?

The essential elements of a gift are:

(4) If the donee dies before acceptance, the gift is void.

22) When can a gift be revoked?

23) What is a Lease?

(1) Rights and liabilities of the lessor

(2) Rights and liabilities of the lessee

25) Discuss the difference between Easement and License.

26) What is Sale?

Liabilities of Seller before completion of sale

Liabilities of Seller after completion of sale

Rights of Seller before completion of sale

Rights of Seller after completion of sale

Liabilities of Buyer before completion of sale

Liabilities of Buyer after completion of sale

Rights of Buyer before completion of sale

(1) To a charge on the property for the purchase money paid

(2) To interest on such purchase money

Rights of Buyer after completion of sale

(2) To the rents and profits from the property.

28) What is “Actual Notice”?

(3) The notice must be provided by a person interested in the transaction.

29) How can a lease be made? When can a lease be terminated?