Akshat Agarwal Property Law Notes

Property Law
Session 1: What is Private Property,

Jeremy Waldron
Scepticism in Private Property
Waldron is first exploring why private property is undefinable? One reason is

that a ‘property’ cannot have rights or duties. But we may have rights and
obligations in relation to property. So property may be defined as a bundle
of rights.
But this bundle of legal relations is not static.
Then he talks about how even the word ‘ownership’ remains undefined.
He also talks about how the ownership with respect to the property is
different for different property.
Conceptual Definition
He argues that private property is a concept for which different conceptions

are possible.
Property Law 1
Basically, there may be somethings ‘universal’ about private property in any
legal system, but there may also be specificities to a particular context.
This is how Waldron defines ownership:
Ownership, as we have seen; expresses the abstract idea ·of

an
object being correlated· with the name of some individual, in
relation to a rule which says that society will uphold that
individual's decision as final when there is any- dispute about
how
the object should be used. The owner of an object is the
person who has been put in that privileged position.
It could be that someone has more rights and maybe we can define ownership
on the basis of who has more rights with respect to property.
Property System
Simply put, a property system is a system that governs access and control of
material resources.
The idea of scarcity is central to property. And we are concerned about the
allocation of this scarce resource.
Also, there are rules about how we can and cannot use our property.
Material Objects
Now material resources may not always be corporeal: intellectual property for
instance.
so there are different kinds of property. But the corporeal property has been
the most important in all societies because IP may not even have emerged in
certain societies.
And many times, property has been defined in relation to land. But land itself
may be very abstract.
Property Law 2
Concept of Priv Prop
Prop belongs to some individual
He argues ownership is intrinsic to private prop systems because here

someone owns property.
On the other hand, collective property means that the property is to be

used with respect to the collective interests of the society.
It can also be said that collective property is like private property but the
owner is the state.
Common prop is anyone can use it and for whatever use
When it comes to organising the rules of private property, some rules may
fit some kinds of property better. Eg, air, water may be with reference to
common ownership. So there are three forms of property organisations:
Private, common, collective.
What is Ownership?
there may be some common ideas associated with ownership:
Honroe’s idea of Ownership
Property Law 3
These characteristics give us a base to identify what is property.
Again, Waldron reiterates that property and its ownership should be:
a concept with various conceptions
Is Ownership equivalent to Market Economy?

Not necessarily because even in a socialist economy, there may be
ownership.
Split Ownership
Corporate Ownership
It may not necessarily be different from private property.
Because private persons together form a corporate ownership
Because the corporate itself becomes ‘one’ entity that owns
Property Law 4
Session 1: Concept of Property, David
Seipp
My Notes
The author begins by talking about how lawyers have struggled with defining
property.
The initial definitions of property were restricted to land or goods
The initial distinction was between having a right to property and having
possession of the property, where right> possession.
There was also a distinction between chattels and land and the word
property was exclusively used for the word ‘land’.
Another idea with property was that one could create an interest or devise an
interest on that property (of inheritance) after death.
After this, property came to be classified as movable and immovable. This

distinction replaced the chattel/land distinction. This distinction emerged
because the nature of rights associated with movable property is different
from that of immovable property.
Property also came to be associated with individualism.
There was also the concept of separation with property, like giving away
property.
It also talks about how a title is affected if it is stolen.
The law also dealt with the problem about what was property and what was
not property.
Property Law 5
Session 1: Property and Ownership,
Jeremy Waldron
Property and ownership is an issue because resource-use matters to people.

Scarcity is relevant but not necessarily (IP is not scarce)
Since ownership lays out the framework that governs rights related to property, it
is important to mitigate conflicts over property.
Three forms of ownership: private, common, collective.
Difference between common and collective: In collective, the use of property

is determined for a particular goal and that goal is the benefit of the society.
Common property is simply available for the use of all, it may not be attached to
the goal of public benefit.
In private property, ownership is assigned to a particular individual. There may

not be a group consensus. However, even private property requires public
justification. For example, if you need the help of state machinery to protect your
property, the state must acknowledge that your right over that property is
justified.
The degree of freedom that the private owner has over property is regulated.
Again, property law is a bundle of rights
But there is a hierarchy in this bundle of rights. Further, property law also
perpetuates exclusion. This system is also self-perpetuating because of
inheritance etc.
Theorizing Property
Locke relied on the First Occupancy theory. The one who acquired the
property first has a superior claim because they did not have to dispossess
anyone.
Locke was also concerned with the productivity of the land. And he
disregarded tribals as true owners because their use of land was not
productive.
Property Law 6
Marx emphasized on collective property.
The idea of ownership and property may be philosophical.
Emergence of Property
State of Nature: man wanted objects to satisfy needs or for survival
which is why man acquired property. This is Locke’s theory which is
similar to his First Occupancy claim.
Hume’s theory recognizes that ownership of property emerges with

conflict. But we can reach a settlement where everyone agree with
whatever property they have.
Another theory is the social contract theory. People took only what they
wanted and they agreed. This theory focuses on the social aspect of
property.
Justification of Property Ownership

One justification is consequentialist:
people in general are better off when a given class of

resources is governed by a private property regime than by
any alternative system. Under private property, it is said,
the resources will be more wisely used, or used to satisfy a
wider
The tragedy of commons:
Under a system of common property, each commoner has

an incentive to get as much as possible from the land as
quickly as possible, since the benefits of doing this are in
the short-term concentrated and assured, while the long-
term benefits of self-restraint are uncertain and diffused.
Property Law 7
But there are obvious criticisms: who benefits from private property? only
a particular class.
What are the pros of private property? It ensures independence from

coercion of the society (individuality).
Session 1: Class Notes

There is a sense of ownership that we have with respect to property, and this
sense is also exclusionary.
Transfer of property is important because a property’s intrinsic value may be

limited. Its actual value is determined by how it can be transferred.
An easement is an important concept here. Easement means that I have a right

to access my property through someone else’s property. In simple words, an
easement is a right to enjoy my own property even if it means interfering with
someone else’s rights.
What is a trust is also important concept with property. Creating a trust means
that a property is transferred to the Trustee and the trustee manages the
property for the benefit of the Beneficiaries. Basically, you are allowing
someone else to manage your own property for a particular objective (benefitting
the beneficiaries)
Stamp duty is a fee paid to the state while registering a property. The logic here
is that we are paying the fees because the state is protecting my property right.
The property develops the concept of Ownership and at the same time, it is
also exclusive.
On this basis, we have certain rights or duties. Every right has a corresponding duty.
Because of this, the property requires a framework through which our rights/duties
can be enforced. This is where the state comes into the picture.
There is also the concept that the King/State owns all land. This is where the idea of
social contract enters the concept of property.
The emergence of the state is linked to the need to protect property. The state
protects ownership. People could have violently captured property but that’s
where the State steps in to redistribute property through a legal mechanism.
Property Law 8
Thus, the state has a monopoly over legitimate violence and hence can use
force to ensure that property rights are protected.
If all land belongs to the government, then why has it given away the land
to private individuals? This is to ensure that there is a market for property,
which increases the value of that property. In the hands of private individuals,
they have the incentive to make the land more productive.
The role of the state is to: enforce (executive function), interpret (judicial and
legislative function) and define (legislative function) property rights.
💡 Property and its principles
Property is not a thing but a bundle of rights.
A bundle of rights to control and determine the use of an object
This is a right in rem
💡 Several property rights may exist in a single object
For example, a rented property has a relationship with the tenant, and also with
the landowner.
These rights/interests may or may not conflict.
Interests may be limited or absolute
💡 Systems of Ownership: Private, Collective, Common
Common prop: accessible to all, for any purpose, one cannot be excluded from
its use. This does not mean that the use of common property cannot be
regulated. An unidentified public group that can access the property.
Property Law 9
Collective prop: Here, there may be a defined group that accesses the
property. Example could be a cooperative society, or company. The decisional
authority is with a group of people (I would still make a purpose-based difference
as mentioned above in my notes)
Private Property: Decisional authority is with an individual or a group of

individuals.
Session 2 & 3: Constitutional Aspects of

Prop and Eminent Domain
My notes and Cases
Vamika Island v. Union of India
💡 Facts of the Case
Petitioner asserts that some property was wrongly classified as Coastal

Zone
Gov argued that the area was ecologically sensitive. The gov wanted to
remove illegal structures erected on this land.
💡 Issue: Whether this classification was ultra vires
💡 Reasons:
The property (Vembanad Lake) is actually ecologically sensitive-

nationally and internationally important
Larger public interest to save the lake.
No illegality in the process adopted to classify. New constructions were

not permitted by any notification
Property Law 10
💡 Conclusion: Petition rejected
MC Mehta v. Kamal Nath (Doctrine of Public Trust)
💡 Facts and Arguments
Kamal Nath, minister for giving clearance and also had an interest in the
property.
Motel had encroached into forest land. This was done to change the
course of the river. This was done to protect the Motel from getting
damaged by flooding.
Kamal Nath gave clearance to the Motel even though it may lead to
environmental degradation.
This interference with the river may also lead to landslides.
💡 Issue: Can the hotel use such flood-protection measures to the

extent of blocking the flow of a river?
💡 Reasoning:
The motel should not have been given permission to interfere with the
natural state for the sake of commercial gains. Because the public has a
right over the natural areas and ensure that they retain their natural
characteristics. Thus, it is justified for Human activity to be constrained by
the environment. Therefore, Environment>human commercial activities.
There is a limit to how we change or interfere with the environment for our
activities. Therefore, the environment limits humans.
Property Law 11
Doctrine of Public Trust: common properties are held in trust by gov for
general public. They cannot prioritize a private interest on these common
properties. Per this doctrine, certain resources cannot be owned
privately.
The court also focused on the commercial nature of the Motel.

Commercial interests cannot override public interests
Precautionary Principle and Polluter Pays principle recognised.
💡 Conclusion
The motel cannot claim ownership over the river and do as it pleases.
Must pay compensation as per polluter pays principle.
Bihar v. Maharaja Kameshwar

Basic idea: land laws and conflict with fundamental rights. The challenge to
the Constitutionality of Bihar Land Reforms Act.
Doctrine of Eminent Domain: the state can take property away for
public purpose but has to pay compensation. Therefore, no statute can
justify the acquisition of property without compensation.
Jilubhai Nanbhai Khachar v. Gujarat (Eminent Domain)

Constitutional challenge to Bombay Land Rev Act.
Defining ‘land’: Land is defined as per its permanency and its connection
with the earth. It is the material of the earth. Includes agricultural and non-
agricultural land.
Defining just compensation:
Material Resources:
Also held: Right to Property is not basic structure
💡 Eminent Domain under Section 300A:
Property Law 12
The word ‘deprivation’ is not to be interpreted narrowly, it can include a lot
of things through which the state can deprive people of their property.
The objective is to protect private ownership from state authority.
As long as it is for general public use, the state can do so even without
compensation.
This doctrine is the resumption of the State’s right over all property within
the sovereign territory including private property. But it should be
authorized by law.
💡 Meaning of Property under S 300A
The term property is to be interpreted in its context, so the state has to

justify that the public purpose overshadows private interest. This private
interest may be very significant as well (the property of a tribal person is
associated with their way of life)
Property is not so divorced from the social life of the person.
💡 Whether Compensation is available under Section 300A?
Not as a right and may not be questioned for being inadequate
💡 Conclusion: Not entitled to Compensation
Class Notes
Property Law 13
Discussion on due process. It was not included.
Due process will open the gate for the judiciary to scrutinize all laws. Due
process means that the law has to be fair and just. There cannot just be any law.
Government can also acquire land for a private entity if it serves a public
purpose.
Land Acquisition, Rehab, and Resettlement Act 2013

This act introduced the nuances of compensation, and also the idea of just
compensation. This act imposes liability on the acquirer for compensation. Here,
there was an obligation for compensation.
💡 Right to Property under Indian Constitutional Law
Pre Independence: Motilal Nehru report
Constitutional Assembly Debates: the word ‘property’ and ‘due process’ were
dropped from Article 21 (which was supposed to resemble the American 5th
Amendment). This was because the due process would lead to a floodgate of
litigation, and impede the social reform.
The battle between FRs and DPSP: The Kesvananda Bharati battle
Right to Property made a constitutional right only (300A)
Vidya Devi v. Himachal Pradesh:
Her land was acquired but she received no compensation. She filed for
compensation after 50 years but the state argued that its title over the land is
protected by adverse possession. So she should not get any compensation.
SC rejected this argument and said that she has a larger human right and the
State cannot resort to adverse possession. She was given compensation.
Session 4: Transfers in General (TPA s.1-

4)
My Notes and Cases
Property Law 14
Marshall v. Green (Sale of Trees that were cut
immediately)
Facts:
The defendant purchased trees and decided that he will cut them and
take them. He began cutting them.
Plaintiff objected and countermanded the sale. Still, the defendant cut
them. There was only a verbal contract for this sale.
Issue:
A contract for the transfer of interest in land has to be written down. But for
sale of timber does not have to be. Whether the contract had to be written
down?
Decision:
Conclusion: The sale is of moveable property because the trees were

immediately cut.
Shantabhai v. Bombay (Deed to cut wood from the forest

after 12 years)
Facts:
Petitioner received rights to a forest/land from her husband on the basis

of a deed.
But a state act intervened with her rights. She nevertheless, entered the
forest and started cutting the trees. State objected and she filed a case.
The sides argued about the nature of the property which would affect the
petitioner’s rights based on the deed.
Property Law 15
Issue: Whether the deed was related to movable or immovable
property?
Reasoning of the Court:
No words indicate a conveyance of any interest. The court reasoned that

as per the deed, there is no interest to the entire land. Rather it is just for
the woods.
Therefore, the deed is only granting a right to enter the forest to cut wood.
So is this cutting wood, a movable or immovable transfer.
The question is how can trees be differentiated from standing timber

because trees are immovable and timbre is not.
The differentiating factor is “attached to earth” even standing timbre is not

attached to earth (it is not “timber trees” that are fixed to earth)
For a tree to become standing timber: if the objective is to cut it in a

short span of time and use it for timbre. If the objective is to allow
the trees on the property to draw nourishment from land and cut
them later on, then that is not timbre because of the time period. The
trees will continue to derive nourishment from land, therefore these
trees are immovable property. Whether the intention is of further
growth or to cut them reasonably immediately.
The deed allows for cutting the trees after 12 years. So the deed is with
the objective of deriving nourishment from the land on which the trees
grow.
Conclusion: The deed is immovable property. No compensation to her

from the state. No remedy, because immovable property not registered.
Property Law 16
Holland v. Hodgson (purpose of fixture test)
Facts:
The owner of a mill purchased some looms for use in his mill. They were
attached to the stone floor by nails driven into wooden beams.
They could quite easily be removed. The owner then mortgaged the mill
and failed to keep up the payments and the mill was repossessed.
Issue: Whether the looms were fixtures and remained part of the land?
Reasoning:
An article that is affixed to the land even slightly is to be considered as

part of the land, unless the circumstances are such as to shew that it was
intended to all along continue a chattel, the onus lying on those who
contend that it is a chattel.
Under this test, the question to be asked is whether the chattel was
attached to the land to enable the object to be better enjoyed as a chattel,
or for the more convenient use of the land.
Here, the mill would benefit from the looms> ease the work> make
production more efficient> thus, it improves the use of the ‘land’ to which
it is attached.
Conclusion: The looms are immovable property
Sirpur Mills v. Hyderabad (Machine fixed for the benefit of

machine)
The appellant erected a machine. The machine was embedded in the
ground.
Property Law 17
Various components of the machine also had to be fixed to the machine
at the site itself.
The excise duty can be levied on ‘movable property’ only.
Issue: Whether the machine is a movable property for the purpose of

excise?
Reasons:
The test laid down is whether the machine could be sold separately. The
court accepted the tribunal’s finding that the machine could be sold in
parts.
The machine was a new marketable item that was produced by the
activities of the appellant.
The reason for attaching the machine to the land was to ensure it
operated properly. Therefore, the machine was attached so that it could
be used better. It was not attached so that the land could be used better.
Conclusion: Appeal dismissed.
Duncan Industries v. State of UP (Intention test for

fixtures)
Facts:
Stamp duty has been levied on a conveyance by Duncan. The appellant

has sold their fertilizer business.
The stamp duty is based on the valuation of property sold. The appellant
argues that the plant and machinery were sold as movables not
immovable. So, they should not be included while evaluating the stamp
duty.
Reasons:
The intention of the parties is to be determined on facts and

circumstances. Sirpur mills is distinguished here.
Property Law 18
The intention of the parties is relevant here. Whether the intention was
to embed the machinery temporarily or permanently. The plant and
machinery have been conveyed as part of the entire business and are not
separable. Their removal was not intended. The machines were not to be
separately sold.
Conclusion: The machinery is immovable
State of Orissa v. Titaghur Mills

Facts:
Bamboo land was given to T to produce paper.
"for the purpose of converting the bamboo into paper pulp

or for purposes connected with the manufacture of paper or
in any connection incidental therewith".
Orissa wanted to impose a tax on ‘goods’. O claimed that Bamboo was

standing timbre and hence was a movable property and hence could be
taxed.
T contended that it is a benefit arising out of the land. The land was given
as a whole. There were some mature bamboo and some immature ones,
and thus they are deriving benefits from land.
T also contended that the bamboo contract was a works contract and was
not eligible for tax.
Issue: Whether the bamboo contract was a contract of immovable

property?
Reasons of the Court:
Trees which are ready to be felled would be standing timber and,

therefore, movable property. Trees
(including bamboos) rooted in the earth being things attached to the earth
are
immovable property
Property Law 19
and if they are standing timber are movable property trees (including
bamboos) rooted in the earth which are agreed to be severed before sale
or under the contract of sale are not only movable property but also
goods.
The court observed that the tax was supposed to be imposed on the
purchase of felled trees/bamboos and not on the act of felling itself.
To be classified as goods, the trees/bamboos should have been agreed to

be severed before sale or under the contract of sale. Thus, tax can be
placed not on a future contract (agreement to sell) but on the executed
contract (purchase must happen)
Therefore, the agreement was only an agreement to sell, because the

trees were not to be immediately severed. The tax was not on standing
trees themselves.
Also, the timbre contract also prescribe the girth of the trees which are to
be felled and the height above the ground level at which they are to be
felled.
Therefore, only sales tax can be imposed on Timbre Contract
Class Notes and Doctrine of Fixtures

Why is the transfer of property important?
This is based on the value theory. The property acquires value because it gets
transferred.
TP Act made it possible to transfer property, and also public transfers as in the
transfer documents could be accessible to the public.
This transfer is for living persons only. (the rule against perpetuity) though
there is an exception for transfer to an unborn child.
TPA does not cover transfers by other laws (acquisition, for instance)
The rule against perpetuity: “you cannot govern your property from your grave”
You cannot say “property will go to A, then B, then C, and control the transfer of
that property even post your death.
Parliament can oust the application of TPA from special laws as well.
Property Law 20
Categorization of Property:
Tangible/ Intangible
Real Property- an immovable property like real land. It can either be for life (I
can enjoy the property until I live, but I cannot further transfer) or it can be
freehold (I enjoy the land without any encumbrances on my ownership, I can
do whatever I want)
Personal Property- movable items like cars etc.
Chattel- movable tangible property
Real Chattel- rights in real property but only for a limited period.
Three formalities for completing Transfer under TPA:
There should be a written document
properly executed
registered and attested
There are exceptions hehehehhehe
What is execution?
The transferor should manifest their will to transfer the property through signature
or affixing their mark.
What is registration?
Payment of stamp duty and going to the registrar to make the deed public.
Why is it important to distinguish movable and immovable property?
Limitation- For movable property, it is 3 years. For immovable property, it is

12 years.
What is a charge on a property?
A right is created on someone else’s property, which is not a mortgage.
Creation of a charge is also by law.
For example, A transfers property to B, with a condition that B has to pay 10k
to C as maintenance. A can create this charge on the property. If B falters in
payment, then C can get the charge from the property.
Property Law 21
Defining Immovable Property
General Clauses Act: immovable property includes- land, benefits from

land, things attached to the earth, or things permanently fastened to anything
attached to the earth. (Holland v. Hodgson test is relevant)
Registration Act: Immovable property includes air, light, etc. as well.
Exceptions: growing crops, standing timbre, or grass
The term Land: means a definite portion of the earth below or above the
earth’s surface.
Benefits from land: things present in the land, and directly come out of the
land. Eg- using the land which has a pond for fishing. This right to fish is an
immovable property. This also includes rent, or interest.
Things Embedded in Earth: things that are quite heavy, or fixed to earth
through external means like nails, screws, etc. Embedded may not
necessarily mean that a part of it is going into the earth.
Things attached to what is embedded in the earth for the permanent

benefit of that which is embedded
The Doctrine of Fixtures:
The principles of Holland v. Hodgson are relevant: What is fixed to earth,

however slightly, is a part of earth. Relevant question is the purpose. If the chattel
is fixed to enjoy the property.
Bamdev Panigrahi v. Manorama Raj, applied the principle of Holland.
What is the intention- is the fixture affixed for the benefit of the land, or for the
benefit of the fixture itself?
What is the degree and manner of attachment?
Hence, there are three tests:
What is the intention of the parties (Duncan)
What is the character/nature? (Bamdev and Holland)
Property Law 22
What is the degree and manner of attachment, i.e. easily able to dismantle it
without diminishing the value of the object (Bamdev)
Exceptions are: If there is a contract to the contrary. AND trade fixtures.
Indian property doctrine of fixture:
Mode of attachment and consequences of detachment. If the

detachment/dismantling changes the very nature of the object.
Object or Intention
By whom is it attached (tenant or owner, because the tenant will not make a
permanent fixation)
Session 5: Section 3 Attestation

My Notes and Cases
Jabbar Sahib v. Venkata Sastri (registrar can be witness if
animus attestandi)
Facts:
A instituted a suit against B, claiming a sum of approximately Rs 49,000

allegedly loaned to him on the strength of two
promissory notes executed by B, in his favour.
B also took money from others. A had a security bond and claimed that
he should be given his money first, and then other creditors will be paid
back if any money is left.
Other creditors claimed that all creditors, including A, were creditors in

similar capacity, because A’s security bond was invalid as it was not
properly attested.
The security bond was signed by a sub-registrar and another witness. A

claimed that sub-registrar’s signature amounts to attestation.
Issue: Whether the signature by sub-registrar amounts to attestation.
Registrars can be attesting parties if these conditions are met:
Property Law 23
1. the signatories are those who have seen the execution or received a
personal acknowledgment from the executant
2. they sign their names in the presence of the executant
3. while so doing they had the animus to attest.
The mere presence of the signatures of the registering officer or the

identifying witnesses on the registration endorsements would not by
themselves be sufficient to satisfy the requirements of a Valid attestation.
The registering officer is required by law to affix the date and his
signature to the endorsements.
the registering officer puts his signature on the document in the discharge
of his statutory duty and not for the purpose of attesting it
No evidence shows the animus to attest of the registrar.
Conclusion: The security bond is not properly attested. Animo

attestandi
Harish Chandra v. Bansidhar Mohanty and Ors.

(interested person but not party, can witness)
Facts:
The appellant (A) executed a mortgage deed in favor of Respondent 2.

The appellant failed to pay the consideration amount.
Res 1 obtained the deed in name of Res 2 because the appellant and
Res 1 were good friends and Res 1 felt embarrassed to ask A for money.
Thus, although the money is lent by Res 1, he is not a party to the
deed.
Appellant argued that the deed was not properly attested to.
Issue:
Whether the deed was validly attested.
One of the attesting witnesses was Res 1, i.e. the lender himself. The act
does not debar the lender from attesting to the deed as per literal
Property Law 24
interpretation.
The object of attestation is to protect the executant from being required to

execute a document by the other party thereto by force, fraud or undue
influence.
Further, the attesting witness may affirm the testimony of the parties while
they executed the deed. The witness may be called on to prove the
execution of the deed by the parties. However, if one of the parties is a
witness, this object is defeated. Therefore, attestation means the
presence of someone other than the parties. This does not bar the
attestation by the person who has lent money but is not the party.
Therefore, Res 1 is a valid attesting witness because he is not party to

the deed.
Conclusion: the deed was validly attested
Santlal Mahton v. Kamala Prasad

Facts:
The issue is regarding a bond sued upon, which was not legally attested
and hence could not be a mortgaged bond. High Court ruled in favor of
KP, but SM argued that the case was barred by limitation and also urged
the state to consider if the document was validly attested to.
Decided on facts, the deed was validly attested to
Kundan Lal v. Musharrafi Begam (pardanashin woman)

Facts:
MB signed a mortgage deed for her Husband. The conditions of the deed
were read out and explained to her.
MB is a pardanashin woman. She signed by taking her hand out of the

curtain although her face was not visible.
Issue:
Whether the deed was validly attested as per s3?
Property Law 25
The plaintiffs argue that the woman was asked if she understood
everything. After she replied in affirmative, she put out her hand from the
curtain and gave thumb impression.
The defendant’s counsel argued that because the curtain was thick, the
woman could not see the presence of the attesting witnesses and
witnesses could not see her. Therefore, the deed was not executed in the
presence of witnesses, nor did the witnesses sign in the presence of the
woman.
Taking the facts and circumstances into account, even though the woman
could not actually see, she was made aware of what was going on. The
word used is ‘presence’ and not ‘seen’ in the case of: “Witnesses must
sign in presence of the executant”
If she had been inclined to see the witnesses sign, she could have done
so even if she did not actually see them through the curtain.
Conclusion: The requirement of ‘presence’ under s3. is satisfied in the

case of a pardanashin woman if the woman is seen signing or putting
her mark on her own.
Padarath Halwai v. Ram Narain

Facts:
The case is of a mortgage deed, where the mortgagors were two

pardanashin women.
They were brought to a room, behind pardah. The attesting witnesses

recognized the women by their voices. They claimed to have seen the
women sign, but not their faces.
The other side argued that nothing could be seen from the veil.
Held: The ‘presence’ requirement is satisfied. because they saw and

recognized the voice as well.
T. M. Pillai v. Mangalam
Facts:
Property Law 26
M contests the validity of a sale deed by P.
Issue: Can attestation to an otherwise invalid transaction by the person

competent to execute it make the transaction valid?
Held:
The intention of the attesting witness is not to validate the transaction.
Conclusion: Not validated by the father’s attestation
Class Notes
Purpose of Attesting Witness:
The object of attestation is to protect the executant from being required to

execute a document by the other party thereto by force, fraud or undue
influence.
the attesting witness may affirm the testimony of the parties while they
executed the deed. The witness may be called on to prove the execution of
the deed by the parties
The basic ingredients for a valid attestation are:
1. That the document must be attested by at least two or more witnesses;
2. They should have either seen the executant putting his signatures or
mark, or some other person doing the same in the presence of, and under
the direction of the executant;
3. If the document has already been executed or signed by the executant, the
witnesses must receive a personal acknowledgment from none other
than the executant himself, of his signatures;
4. Witnesses must sign in presence of the executant;
Property Law 27
5. It is not necessary that both witnesses should be present at the same
time; and
6. There is no specific form of attestation.
Difference between Indian and English Law:
1. Under English law, both the attesting witnesses are required to actually see
the execution of the document.
2. Under English law, both the witnesses should be present together
3. Under English law, attestation based on personal acknowledgement is not

valid
Why is Indian law more flexible?

English law requires everyone involved to converge in one place. This may not
be possible in the Indian context back in old times, when the transportation
system in India was very nascent.
Who can be the Attesting Witness?
What matters is the animus attestandi. But the party of the deed themselves
cannot act as witness
Therefore, a scribe and even registrar can be witnesses if they have the intention
to intention to attest.
The attesting witness is the witness to the document
An identifying witness can also be an attesting witness if they have the animo
attestandi
Conditions of a Valid Attestation?
Intention to attest
The mental act should coincide with the mental act
Intention to authenticate the document
Is the Attesting Witness required to know the contents?

No, there is no need to know the contents of the deed. Questions pertaining to
the deed can be asked of the parties. The attesting witnesses are not a party to
the deed.
Property Law 28
Session 6: Section 3 Notice
My Notes and Cases
Lloyds Bank v. P. E. Guzdar
Facts:
G mortgaged property to L to secure a loan. There was another mortgage

on that property already. The issue was which mortgage acquires priority.
For that, the dates are relevant.
under Section 59, T.P. Act, a mortgage may be created by delivering to

the mortgagee the documents of title to immovable property in Calcutta
and in certain other districts. Such mortgages being created merely by
depositing the title deeds ex necessitate rei would not be registered
G asked the other bank to give the deeds of the mortgaged property, so
that he could use it as security while getting loan from L. The prior bank
gave the deeds back so G could get a loan from L. The prior bank said
that they trusted G and hence thought there could be no problem. So two
banks have the same mortgaged property.
Issue: Which bank has priority over the property and whether the prior
bank could be said to cause ‘gross negligence’ for inducing L to
advance money to G under S. 78?
Negligence purports the existence of a prior duty. It cannot be said that a

mortgagee has a duty to all persons who in the future may become
puisne mortgagees of the same property to take care that the mortgagor
is not enabled to commit a fraud using that property.
"gross neglect" in Section 78 means and involves a failure on the part of

the prior mortgagee to take such reasonable precautions against the risk
of a subsequent encumbrancer being deceived as in the circumstances
renders it unjust that the earlier mortgage should retain its priority.
If the second mortgagee could, by reasonable inquiry, know about the

nature of the property in question, then the first mortgagee cannot be
accused of gross negligence.
Property Law 29
the title deeds of the house were in order, and deposited with the bank L,
and the bank, after securitisation of the same grants a loan, it cannot be
said that they acted negligently, or that there was any starting point of
inquiry that they needed to probe further. Rather, they had been vigilant
and had taken care of their interests in a reasonable manner.
Conclusion: The property belongs to L because the prior bank was

gross negligent
Abdul Gafur v. Ahmedabad Municipal Corp.

Facts:
Abdulmain, who was the owner of certain properties ran into financial
difficulties in 1949, and was adjudged insolvent in 1950, whereupon his
Property Law 30
property vested in the Office Receiver appointed by the court.
This property was subject to a mortgage, and was sold at a court auction
to Abdul Gafur (AG), in 1954.
Meanwhile, in 1951, the Official Receiver received a bill from the

municipality for approximately Rs 630 pertaining to taxes. He sought the
court’s permission to sell the property to pay the taxes, which was
granted to him by the insolvency court.
However, after that neither the official receiver took any action with
respect to payment of taxes, nor did the municipality press for the same.
AG, the purchaser, made inquiries from the Official Receiver about the
charges due over the property, but was not given any information about
the tax arrears. Soon after he purchased the property he received a
notice from the municipality for the payment of arrears of taxes amounting
to around Rs 540.
Issue: Whether AG was liable to pay the municipal taxes by attachment

of the property in his hands.
Rule: Section 3, “a person is said to have notice”
The Municipal Corp argued that AG had constructive notice of the charge
and is liable to pay the tax.
Authorities have ruled that the charge becomes payable only when there
is a notice of the charge. But there is a conflicting authority that held that
the charge becomes payable even without notice.
The Municipal Corp argued that AG had willfully abstained from

inquiry/gross negligence as per section 3, hence he had constructive
notice.
The doctrine of constructive notice applies when there is suspicion, as a

prudent mind would agree, that there is some incumbrance on the
property, but the person still decides to be blind to that suspicion. A mere
lack of caution does not attract the doctrine of constructive notice.
Property Law 31
Omission to inquire, in the absence of reasonable explanation may be
classified as gross negligence. The omission of doing something that an
ordinarily prudent man would do, for the protection of their own interests.
Therefore, the test is this: what is the course which on the facts and
circumstances of the case an ordinarily prudent purchaser dealing
bona fide in the proper and usual manner for the protection of his
own interest would have followed "with a view to his own title"; what
inquiry he would have made?
As a reasonable prudent man, AG was not required to make an inquiry

with the Municipal Corp. No charge was shown in the auction. And the
sale deed was also procedurally approved. AG had no reason to suspect
that the property could have had a charge attached to it.
The proclamation of sale was drawn in the presence of the decree-holder

and the judge. AG cannot be expected to be excessively cynical (this will
fail the ordinarily prudent man test)
An ordinarily prudent man would not have made an enquiry to the Mun
Corp, because there are no suspicious circumstances. Also, AG had
made enquiry to the Original Receiver.
Even if an enquiry were made, it is not necessarily true that AG would

have received the information because Mun Corp has discretion in giving
such info. Mun Corp is also not obligated to maintain a record of such tax
arrears on property.
Conclusion: AG is not guilty of wilful abstention or gross negligence.
Umadevi v. Roman Catholic (Nemo dat quod non habet)

Facts:
Property devolved upon two daughters. U executed PoA in favour of her

sister R but was later cancelled. In the meantime, R executed different
documents in favor of third parties. The third parties had sold property to
RC.
U wanted her share of property back from RC.
Property Law 32
RC argued that sister had PoA, they bought it for valuable sum, have
used it for building a commercial complex.
Trial court found that PoA did not confer power to sell and there was no
acquiescence by U.
High Court reversed and said U had constructive notice about the sales
made by her sister
Issue: Whether the alienation by the sister under PoA is valid? Did U
have constructive notice?
It is clear that PoA did not have power to sell, but RC argued that they are
bona fide purchasers and should not be made to suffer.
By exercising reasonable care, RC could have found that PoA did not
have power to sell.
High Court said that U should have challenged when the property went
out of her possession. But, possession of an agent is equal to possession
by principal.
any unauthorized sale made by the agent will not amount to the Principal
parting with possession
It is a fundamental principle of the law of transfer of

property that “no one can confer a better title than what he
himself has” (Nemo dat quod non habet). The appellant’s
sister did not have the power to sell the property to the
vendors of the respondent. Therefore, the vendors of the
respondent could not have derived any valid title to the
property. If the vendors of the respondent themselves did
not have any title, they had nothing to convey to the
respondent, except perhaps the litigation.
Property Law 33
Conclusion: Appeal is allowed. U gets her property back. Not a valid
sale.
Harendra Nath Dutta v. Rajendar (Explanation I)

Facts:
a partition took place between four brothers, by a written, attested and

registered deed. The terms of partition gave preferential right to purchase
property to the former co-owners.
One of the brothers sold their share to R without allowing the other
brother to exercise the right of pre-emption (first the right-holder be
presented with the share)
H argued that R does not have good title because he had ‘constructive
notice’ that there was a right to pre-emption because the deed was
registered
Issue: Does mere registration amount to constructive notice?

The relevant deed is about partition of immovable property and not a

transaction of immovable property.
Because of this, there is no need by law to register the deed.
Explanation 1 of “notice” requires that the deed should be compulsorily

registered. So, in this case, the deed was not required to be registered by
law, so constructive notice cannot be presumed.
Ram Niwas v. Bano (Explanation II)

Facts:
R took a shop from X. Subsequently X sold it to B
R filed for specific performance but B argued that he was a bona fide
purchaser.
At the relevant time, R was in actual possession of the property
Issue: Did B have constructive notice of R’s possession and hence his
right was subordinate to R’s?
Property Law 34
where there is a tenant in possession under a lease or an agreement, a

person, purchasing part of the estate, must be bound to inquire, on what
terms that person is in possession.
Since, R had actual possession of the property, B should have inquired

into R’s terms of possession.
Therefore, Explanation 2 applies and R’s right is superior.
HN Narayanswamy v. Deveeramma
Facts:
a son and his mother sold the house to H.
the seller agreed to release

a right of conveyance in favour of H, with the help of an unregistered
agreement.
H took possession of the

properties and after the execution of release deed, carried major repairs
at his costs.
The sellers (mother and son)

however, sold the right of reconveyance stipulated under the original sale
deed to a person D, without disclosing to him, that it has already been
released in favour of the buyer H
H claims a superior right, D claims bona fide purchaser
Issue: Did D have constructive notice of B’s possession under

Explanation II?
D was made aware of the repairs made by H.
In this background, any average prudent man ought to have enquired

about the rights of H, whether reconveyance was still subsisting because
he had spent amount for major repairs or what was the nature of his
rights
Property Law 35
Because D should have enquired about H’s rights, he has committed
willful abstention. Plus, H was in actual possession at the relevant time.
Conclusion: Therefore, H’s title is superior and he can claim specific

performance
Mustafa v. Isa (not actual possession when only small

part of property possessed)
Facts:
A, was the owner of a building that comprised seven smaller more or less
identical portions.
Each one of them was occupied by a different tenant, one of whom was
B. According to B, A had contracted to sell him his portion of the property
in lieu of the loan that he had advanced to A.
However, instead of selling it to B, A sold the entire building to C and

directed all the tenants, including B, to start paying rent to C.
B claimed that as he was in actual occupation of his portion, C as a

prospective purchaser was bound to make inquiries from him about his
rights and
a failure to do so would result in the imputation of constructive notice on
him
Issue: Was B in actual possession of the property when he only

occupied one of the portions and not the entire property?
There is no evidence to show that B came in possession of the entire

building. He only had one portion while the entire building was sold to C
There was no exclusive ownership by B. There were other tenants in

other portions.
Roy Babu v. Rajan Babu (Explanation III)

Facts:
P executed a Power of Attorney in favour of his father.
Property Law 36
In exercise of such power, father alienated property to D. When father
died, P challenged the sale executed by his father.
P contended that he never came to know about the execution of

document until the death of his father.
Issue: What is the effect of the PoA exercise of power on the principal?
The PoA was given but not immediately acted upon, although it was also
not revoked.
Father’s alienation was within the PoA and followed procedure. P

contends that he never came to know about alienation.
It is settled that the notice of agent would be the notice of principal unless
the agent exceeds his power or conceals the notice of fact from the
notice of the principal. Father did the act in his power as PoA, since father
had notice, P will be deemed to have notice as well.
There is gross negligence on part of P, he executed PoA and kept mum

about it. Instead, he should have enquired to his father about the status of
the property. This is because the PoA was still in force, else he should
have revoked the PoA.
Conclusion: Alienation is valid, P had notice
Class Notes
Notice is based on equity. It is the knowledge of certain facts that
determine the rights and liabilities of the parties. There is also an innocent
party involved.
It can be actual or constructive.
Therefore focus on:
What is the unconscionable bargain?
Who is the innocent party?
Equity favors whom?
Property Law 37
What is Actual Knowledge?
Knowledge should be definite and the person knows about it.
Knowledge should come from the person involved in the transaction (and not
just any random person)
Knowledge should flow from authority and not just be mere rumors or gossip.
Knowledge should be relevant/linked to the transaction
What is Constructive Notice?
Constructive notice is the equity which treats a man who ought to have
known a fact, as if he actually does know it. It presupposes, that in property
transactions, a transferee ought to ascertain and verify certain facts for
safeguarding his own interest.
Knowledge is imputed on the person.
The logic of constructive notice is that it creates a legal presumption that one
party ought to have the knowledge of a particular fact because equity demands it.
The Transferee needs to ascertain (Caveat Emptor):
Competence of the transferor
Whether there is any charge/encumbrance over this property
Whether any other person has a temporary/permanent claim/right over the

property
Gross negligence: an ordinarily prudent man will not do or omit to do for the
sake of their own interests. More than mere carelessness.
Illustrations of Gross Negligence:
Wilful abstention: Ignoring a reasonable suspicion that an ordinarily prudent

person would not do to protect their interests
Property Law 38
Constructive Notice applies when:
1. When there is a willful abstention from making an inquiry
2. Gross negligence
3. Registration of the document/transaction
4. Actual possession
5. Notice to the agent.
Registration as Notice: only when the deed is required to be registered by law.

(Harendranath Case)
Actual Possession: When the property is already with someone else, then that
someone else has a better title.
It has three conditions:
The possession should be actual and lawful
The possession should be of substantial property and not just a small part of
the property. (this is based on practicality)
Possession should be with other than the transferor.
Notice to Agent: Depends on what the agent is responsible for (purpose of

agency)
And the knowledge/notice should be material to the course of business.
Notice should be given in capacity as agent, in the course of business.
The agent should have actual notice and not constructive notice.
Session 7: Sections 5-9

My Notes and Cases
V.N. Sarin v. Ajit Kumar Poplai
Facts:
Property Law 39
Property belonging to a Hindu joint family was divided. The property was
partitioned.
S was a tenant in a part of this property. This part went to P. P asked S to

evict the premises for his own personal use.
S contended that A had acquired the premises via transfer, and hence S
was not obligated to leave on grounds of ‘personal use of A’ before 5
years as per a legal provision in the Delhi Rent Control Act (DRCA).
Issue: whether partition of coparcenary property; or

acquisition of property through partition amounts to a ‘transfer’.
Reasoning of Court:
There are conflicting authorities on this view.
The definition of “transfer” in s. 5 of the TPA cannot be imported for

interpretation in this Delhi Rent Control Act. Because the definition is
specific to the TPA only and DRCA does not apply the definitions of TPA.
In coparcenary property each one of the coparceners is an owner of the

entire property. By partition, he does not acquire any new title to the
property, but what he gets is a right to enjoy his share of the property in
severalty.
The joint owner was the owner of the property before partition and he
remains the owner of the property after partition. The change is only
brought about in his status.
Conclusion: Appeal fails. S will be evicted from the property
Rosher v. Rosher (Restraint)

Facts:
a person A died leaving behind his wife W and a son S.
He left his entire property to S, under his Will. The Will also provided, that
if S wanted to sell the property, or if any of his heirs wanted to do so, they
must
offer it to W first and she would have the option to purchase it at one-fifth
Property Law 40
of the value of the same, as it was assessed at the time of the testator’s
death
Therefore, W has a right of pre-emption.
The Will further provided that if the son or any of his heirs wanted to let
this manor on rent, they could do so freely only for a period of three
years. If the tenancy exceeded the three years time period, W would have
the option to occupy the premises, for the period in excess of three
years, at a fixed rent.
The son or his heirs were under an obligation therefore to offer the
premises to W first, and only when she declined to take it, could they let it
out to
other persons.
Issue: Whether there was an absolute of partial restraint on the power of

alienation by S or his heirs.
The condition with regards to selling the property is an absolute restraint

because the deed restricts the son with regards to the price as well.
because to compel him, if he does sell, to sell at one-fifth of

the value, and to throw away four-fifths of the value of the
estate is, to my mind, equivalent to a restraint upon selling
at all.
Condition with regards to selling property to one person is also absolute

restraint because it limits the sale to just one person, and all other
persons are excluded. A partial restraint would look like that “a person
cannot sell to XYZ, but here a condition is that a person can ONLY sell to
X.
Conclusion: hence, this is absolute restraint.
N Ramaiah v. Nagraj
Facts:
Property Law 41
a person died leaving behind his wife W, and his nephew
Nephew claimed the person had left his total property in his favour.
This claim was contested by the widow W, on the ground that the Will was
a forged document, and she, as the legally wedded wife of the deceased
was entitled to the total properties.
The nephew got an injunction preventing the widow from

alienating/transferring the property and maintain the status quo until the
case is decided.
Six months later, the widow executed a Will of these properties in favour
of her brother and died three months later, while the suit relating to the
title dispute
was pending in the court.
Nephew objected because the widow was restrained from alienating the
property.
Issue: Whether the execution of a will amounts to transfer under s.5 and
the widow would be restrained?
The transfer is only inter vivos while will is the testator’s will after death.
Therefore, a will is not equivalent to transfer.
Further, does status quo mean that widow was not even allowed to Will
the property?
Property Law 42
Suraj Lamp Industries v. Haryana
Facts:
This case is concerned with the use of SA/GPA/Will transfers.
Property cannot be transferred via agreement to sell, general power of

attorney, and will.
This was done to avoid payment of stamp duty. This may lead to black
money, land mafia and problems for the bona fide buyer.
SA/GPA/WILL transfers required to be discouraged as they

lead to loss of revenue (stamp duty) and increase in
litigations due to defective title.
Haryana reduced the stamp duty to incentivize people to avoid

SA/GPA/WILL and get their conveyances registered.
Issue: Validity of SA/GPA/WILL as instruments of transactions

A contract of sale does not by itself create a right.
Any contract of sale (agreement to sell) which is not a registered deed of

conveyance (deed of sale) would fall short of the requirements of sections
54
and 55 of TP Act and will not confer any title nor transfer any interest in
an immovable property
PoA
Property Law 43
A power of attorney is not an instrument of transfer in regard to any right,
title or interest in an immovable property. The power of attorney is
creation of an agency whereby the grantor authorizes the grantee to do
the acts specified therein, on behalf of grantor, which when executed will
be binding on the grantor as if done by him
Will
A will is the testament of the testator. It is a posthumous disposition of the

estate of the testator directing distribution of his estate upon his death. It
is not a transfer inter vivos. The two essential characteristics of a will are
that it is intended to come into effect only after the death of the testator
and is revocable at any time during the life time of the testator.
Conclusion: Since the scope of all three instruments does not cover a
conveyance, hence these documents are not valid transfers
Hameed v. Jameela
Facts:
Father had gifted property and to his daughter, in lieu of the share, he
gave Rs. 1000.
The daughter exchanged 25 cents of land for the Rs. 1000.
The daughter claims that she had not relinquished her claim to the
father’s property based on the spes successionis doctrine.
Issue: Would receipt of money in lieu of share by an heir apparent in the

property of his/her father during lifetime of the latter estop the heir from
claiming share in the property on the father dying intestate
The court is looking at whether taking the money and using it for benefit
(getting land) is sufficient relinquishment.
Through a will, the legatee does not get any claim over the property, it is
only an expectation or hope they get that upon death of the testator, they
will get the property (spes successionis)
Property Law 44
under Section 6(a) of the T.P. Act and under the principles
of Mohammedan Law, an heir-apparent cannot transfer his chance of
succeeding to an estate.
Does the rule of estoppel conflict with this section? Estoppel is based on
equity. Section 6(a) of the T.P. Act or the relevant provision of
Mohammedan Law prohibiting transfer by an heir-apparent of the chance
of succeeding to an estate will not, and need not stand in the way of the
court considering the application of rule of estoppel in a suitable situation.
These two principles can be applied in depending on the situation.
The section prevents someone from giving away their chance to

succession to someone else. However, they can still relinquish their
claim.
Section 6 prohibits the transfer of the right to claim, but it does not bar the
relinquishment of that right. Then the heir cannot go back from their
relinquishment.
Conclusion: Jameela is estopped, cannot claim the right to her share,

estoppel is not averse to section 6.
Mohan Roy v. Gour Mullick

Facts:
R purchased from M their expectations under the will of their uncle, or

alternatively their rights as his nephews expectant upon the termination of
the surviving widows' rights in the property of the uncle, and among many
other purposes.
Issue: Is sale/purchase of future expectations and possibilites valid

under TPA?
Because the property is not with the legatees, it is a mere chance

because the will may be changed as well.
The legislature does not allow the transfer of mere chance, and hence the
appeal is dismissed.
Property Law 45
Gulam Abbas v. Haji Kayyam Ali
Facts:
a man ran into financial difficulties almost to the point of insolvency. He

had
four sons, A, B, C and D.
A and B paid his debts and C and D executed deeds in favour of A and B
acknowledging that in lieu of the such payment of debts of the father, the
rights of inheritance at the time of the death of the father from his property
would also be available only to A and B, and C and D would not raise any
objections to that effect
Upon the death of the

father, however, both C and D wanted to enforce their inheritance rights
on the ground, that the actual implication of the deed was a renunciation
of future rights of inheritance in favour of the brothers, and as such
renunciation is void in terms of s. 6(a)
Issue: Whether the relinquishment is void as per S. 6(a)? Does estoppel

apply?
The question of estoppel is a concern of contract law and that of

mohammedan law, even if mohammedan law prohibits such an estoppel,
it may be justified as per contract/evidence law principle.
The rule of estoppel applies given the conduct of the persons and in the
interest of equity. Here also, the right is relinquished, it is not transferred
to someone directly.
Also, there is consideration offered to the relinquishment. And hence the

balance of equity has to be kept in mind.
Property Law 46
Conclusion: the brothers cannot enforce their right that they have
relinquished.
Class Notes
Section 5-
TPA governs transfers between ‘living persons’ as both parties. (transfer inter
vivos)
A living person includes company or association or body of individuals, whether
incorporated or not. But does not include idols, or courts
You can transfer to yourself but in a different capacity. Eg- I transfer my
property to myself as an administrator of that property now. So I am
transferring it to myself in a new capacity.
Ways to Transfer:
Sale- private sale or court sale
Gift- requires acceptance from the receiver (gifts can be onerous)
Will
Inheritance
Relinquishment- giving up your interest/right in one property to another
Dedication
Section 5 deals with only one type of transfer: To living persons, and of an
existing property (doctrine of spes successionis)
An idol is not a living person because the God does not take birth or die.
Court auction are also not considered transfer by living person.
What is conveyance?
Creation of a new title/interest in favour of the transferee. It is different from mere
permission.
Power of Attorney is not an instrument of transfer
This is because PoA is only to create a contract of agency, so a PoA and the acts
done under a PoA have to be executed and then the PoA becomes binding.
Property Law 47
What is property under S.5?
Property includes interests:
Ownership
Right to Enjoy Property
Right to Alienate
Partition of a joint family property is not a transfer because no new rights

are created. Only the form of rights is changing from joint to exclusionary.
Section 6:
Property that may be transferred
Property and interests in property are transferable (either the entire bundle or
a stick)
Law favours alienation over accumulation but there are exceptions where the
law does not allow transfer:
1. Transferor does not possess good title (nemo dat quod non habet)
2. Transferor does not own property in the present (future dealing in

property may lead to uncertainty)
3. Property for enjoyment by the owner cannot be transferred
4. Violates public policy
Transferors should have:
1. present subsisting interest in the property
2. Capable of delivering it
3. permission to transfer it
Transferor may get physical possession in the future, but has a present
title, then he can transfer.
S. 6(a) prohibits three things:
chance of heir apparent
Property Law 48
chance of a relation obtaining a legacy on the death of a kin
any other such possibility (based on chance/hope/expectation and not

certainty)
Generally, you cannot relinquish a chance to property, but this may be

trumped by estoppel.
For estoppel to satisfy, there must be two conditions to fulfil:
Consideration
misleads the owner with respect to his testament (had there been no
relinquishment, the owner would have treated the testament differently
S. 6(b) I can re-possess the property if there is a breach of possession, and

this right to re-possession cannot be given to anyone else but the owner. No
one else can re-possess the property.
S. 6(c) An easement right cannot be transferred apart from the
dominant heritage
Dominant heritage is the property that has the easement over another
property (subservient heritage) Therefore, this easement will pass with the
dominant heritage. Easement cannot be severed from the dominant heritage.
S. 6(d). interest in a property that is for the personal enjoyment of the owner,
cannot be transferred
S. 6(e) mere right to sue cannot be transferred.
S. 6(f) public office and its salary cannot be transferred before or after it
becomes payable. But if the money is paid then it can be transferred.
S. 6(g) Stipends can also not be transferred and pensions can also not be
transferred.
Who can Transfer?
S. 7-
Person competent to contract and entitled to property
Authorised if not the property his own
Property Law 49
S. 8- Operation of Transfer
With transfer, all interests that the transferor has are passed to the
transferee, unless a different intention is expressed or implied.
For eg- with the dominant heritage, the easement right is also transferred.
with machinery attached to earth, then all its movable parts as well.
S. 9- Property may be transferred orally if:
value of movable property is less than 100
mortgage is less than 100
Lease is less than 12 months
Session 8 and 9: S. 10-11

My Notes and Cases
Rosher v. Rosher (Restriction)
Facts:
a person A died leaving behind his wife W and a son S.
He left his entire property to S, under his Will. The Will also provided, that
if S wanted to sell the property, or if any of his heirs wanted to do so, they
must
offer it to W first and she would have the option to purchase it at one-fifth
of the value of the same, as it was assessed at the time of the testator’s
death
Therefore, W has a right of pre-emption.
The Will further provided that if the son or any of his heirs wanted to let
this manor on rent, they could do so freely only for a period of three
years. If the tenancy exceeded the three years time period, W would have
the option to occupy the premises, for the period in excess of three
years, at a fixed rent.
Property Law 50
The son or his heirs were under an obligation therefore to offer the
premises to W first, and only when she declined to take it, could they let it
out to
other persons.
Issue: Whether there was an absolute of partial restraint on the power of

alienation by S or his heirs.
The condition with regards to selling the property is an absolute restraint

because the deed restricts the son with regards to the price as well.
because to compel him, if he does sell, to sell at one-fifth of

the value, and to throw away four-fifths of the value of the
estate is, to my mind, equivalent to a restraint upon selling
at all.
Condition with regards to selling property to one person is also absolute

restraint because it limits the sale to just one person, and all other
persons are excluded. A partial restraint would look like that “a person
cannot sell to XYZ, but here a condition is that a person can ONLY sell to
X.
Conclusion: hence, this is absolute restraint.
Muhammad Reza v. Abbas Bibi

Facts:
SB took possession of her property and sold/mortgaged it before her

death. Her transferees remained in undisturbed possession.
The respondents wish to recover the property from the transferees

(appellant). The respondents argues that SB did not have the power of
alienation and after her death, the property be passed to
heirs/respondents.
Issue: Was the restriction with respect to the power of alienation valid in
law?
Property Law 51
The agreement that gave the rights over the property to SB used the term
‘malik’ and the intention appears that SB was to be the full owners. But
the court gives due regard to the stipulation that the property could not be
alienated to strangers.
Stranger would mean someone who is not a member of the family. and
MR is a stranger here.
Thus the lady had an absolute estate but with this restriction. This
restriction is only partial because she can transfer to anyone within the
ambit of the family.
Further, the interest to keep a particular property in one family is valid.

Courts of equity favour the family.
Conclusion: The restraint is partial and valid. SB is bound by it. MR

does not get property.
Zoroastrian Cooperative Society v. District Registrar

Facts:
The cooperative society was registered. Res 2 received the flat

subsequent to his father’s death.
Wanted to construct a commercial building. Refused permission. Then

asked to construct flats to give to Parsis. The society accepted the
request making it clear that the constructed flats could only be sold to
Parsis.
Alleging that Res 2 might sell flats to non-Parsis, the registrar said that it
will be violation of bye-laws. The members were required tot sell to ONLY
Parsis.
Res 2 argued that such restriction was invalid and was a restraint on
alienation and invalid under s 10 of TPA.
It was argued that this was only partial restraint. There was nothing illegal
in certain persons coming together to form a society in agreeing to restrict
membership in it or to exclude the general public at its discretion with a
view to carry on its objects smoothly.
Property Law 52
Other side argued that it was invalid under S 4, public policy. A bye-law
restricting membership in a co-operative society, to a particular
denomination, community, caste or creed was opposed to public policy.
The cooperative movement, by its very nature, is a form of voluntary

association where individuals unite for mutual benefit in the production
and distribution of wealth upon principles of equity, reason and common
good.
the members have joined the society in accordance with the bye-laws and
the members join a housing society by ascertaining what would be the
environment in which they will reside. It is not permissible for the State
Government to compel the society to amend its bye-laws as it would
defeat the object of formation of the society.
Parsi is a minority community. It is open to that community to try to

preserve its culture and way of life and in that process, to work for the
advancement of members of that community.
Under s 10, the restraint should be an absolute restraint.
Res 2 got the property from father as per the bye-laws, hence he
inherited the restrictions along with.
Further, these are restrictions in the interests of the Society and its
members and consistent with the object with which the Society was
formed.
The restriction is also self-imposed. Res 2’s father was a party to the
cooperative society agreement. And Res 2 became a part of this contract
voluntarily, he could have rejected the agreement.
it is not as if it is an absolute restraint on alienation. Respondent No.2 has

the right to transfer the property to a person who is qualified to be a
member of the Society.
Conclusion: The restriction is valid, not hit by public policy or s 10 of

TPA.
Gayashi Ram v. Shahabuddin
Property Law 53
Facts:
There was a sale deed with the stipulation that the property could only be
sold to vendor or his heirs. If this condition is contravened then vendor
can get back the property for Rs 175.
The condition was contravened. GR wants possession after paying 175.
Issue: Whether the restraint is valid as per s. 10?

This agreement is different from a pre-emption. In pre-emption the seller

is required to approach one party before selling it off to someone else.
Here, the seller has no choice but to sell it to the vendor’s heirs. Also the
price is fixed.
This case is also different from SB case (Mohammad Reza v. Abbas

Bibi) because there, the property could be transferred to a class/group
i.e. the family circle. The ambit is larger than in the present case. In the
present case, the property can only be sold to vendor or his heirs.
in order to see whether there is absolute restraint or not,

one has to examine the effect of all the conditions and find
whether for all practical purposes alienation is prohibited.
The mere fact that there may be some remote contingency
in which there may be a possibility of an alienation taking
place would not necessarily take the case out of the
prohibition contained in Section 10
Bhavani Amma v. CSI Dekshina Kerala

Facts:
Property Law 54
property sold to CSI for constructing a private college.
Condition was if the private college is not constructed then the property
will be sold back to the owner for the same consideration paid by CSI.
Since college is not constructed, BA wants the property back but CSI
wants to sell it to someone else.
Issue:
The principle underlying Section 10 is that a right of transfer is incidental

to and
inseparable from, the beneficial ownership of property.
The very object of Section 11 is to provide that the transferor shall not be
allowed to put a clog or restriction on the right of a vendee so as to be
repugnant to the property sold.
Here, the vendee can only sell back to the vendor, that too at a fixed price
and no period is specified. Which means that this restraint is in force
forever, unless the college is built.
Though agreement does not contain a specific clause prohibiting

respondent from
alienating the property to third parties, there is an implied clause that in
the event of failure to construct a college, the property shall be
reconveyed to the assignor at the same price thereby shutting out any
other option.
Therefore, this is an absolute restraint
K. Muniswamy v. K. Venkataswamy
Facts:
Property Law 55
Property was supposed to be equally shared between M and V after
death of parents.
There is a partition, half property went to parents and the other half to the
two brothers.
After death of parents the property should be divided equally.
Parents however gave an entire share to V. M claimed that the parents

had no right to alienation.
Issue: Whether the partition deed created a limited interest for the
parents and hence could not transfer property to V.
The intention of a partition deed is to create absolute estates.
Further, the parents could enjoy their property as they liked and paid
taxes in their name.
This condition would only operate if they died intestate. The parents could
transfer if they were alive because an absolute estate was created.
Further, a partition deed would not fall under the TPA, because partition of
a property does not create a new interest.
Umashankar v. Daulatram Sahu

Facts:
U sold shop to D by a registered deed.
D could not make any pakka construction or basement near the shop.
D has only put up a tin shed and shutter, not a permanent structure.
Issue: Whether the restraint is invalid as per S. 11?

Held:
the direction contained in the sale deed was not made for the purpose of
securing the beneficial enjoyment of his other property.
The condition is contrary to s. 11.
Manohar Shivram v. Mahadeo
Property Law 56
Held that: a restrictive covenant does not run with the land. Thus, if there
is a valid restraint and that valid restraint is fulfilled once, it does not have
to be fulfilled always.
Class Notes
Conditions on Alienation:
Conditional transfers (s. 25)
Absolute or Partial restraint
Restriction repugnant to interest (you create an interest and then put a

restriction that nullifies that interest)
Condition Precedent: before the transfer. Here, no property transfer is

done, if the condition is not fulfilled.
Condition Subsequent: after the transfer. This is what prohibited in

section 10. Section 10 invalidates the limits on the transfer, once the
transfer has already happened.
Section 10
It gives two exceptions:
A lessor can put restrictions and the lease won’t be void if the restriction is for
the benefit of Lessor.
A Christian woman
Also note that this section invalidates the condition/limitation and not the transfer
itself.
A specific legislation overrides this section (eg- a certain property can be
statutorily prohibited to give it to someone outside a particular community)
This section balances two interests: freedom to contract and beneficial
ownership. (Power of alienation is important to the new owner)
The nature of the condition (whether partial or absolute) is to be determined by
the effect and substance of the condition. It is not to be determined by the words
used.
What amounts to restraint?
Property Law 57
Alienation can be restrained through:
Sell property at any point of time
For any consideration
To any person
For any purpose
Thus a restraint on alienation can do the following:
restraint on sale for a particular time
restraint over consideration
restraint with respect to persons (depends on the pool of persons, family, and
community then courts are lenient)
Restraint for just a particular purpose
Section 11:
Here the transfer or an interest created should be absolute. but the restrictions
damage the absoluteness of this interest, then such a stipulation can be ignored.
The principle is “if the sale is for a remote possibility, then it is hit by s. 10”
Right to Alienate is very important because the law favours the circulation
of property.
Exception of Section 11:
Positive covenants (to do something) do not run with the land while
negative covenants (to refrain from something) do. This means that a
positive restraint would not bind a bona fide (later) purchaser.
Positive covenants would incur expenses or compel the party to do
something. Positive covenant would involve a monetary expense. It cannot to
transferred to someone else because a positive covenant is quite
burdensome, so it cannot be passed on to a bona fide purchaser without
their consent. But a negative covenant is merely a refrain from doing
something and runs with the land.
Property Law 58
For the benefit of another property.
Session 10: S.13 to 16 (transfer for the

benefit of the unborn person and
perpetuity)
My Notes and Cases
Girjish v. Data Din
Facts:
A made a gift of her property to RK for her life and then to her sons
absolutely. B had no child on the date of execution of the gift.
The deed further provided

that in case RK had only daughters, then the property would go to such
daughters but only for their life.
In case RK had no child then after the death of B, the property was to go
absolutely to
D.
Issue:
Whether the gift to Mt. Ram Kali (RK) was an absolute gift or not,
and
Whether the plaintiffs' case falls under the provisions of Sections 13

and 16, T.P. Act.
The intention is very clear that there is no limitation on the gift. But the
deed also says that RK cannot transfer if they have daughter. And the son
would become the owner post death.
In that situation, the property would go to D. So, there was a life interest
in the favour of the donor RK.
Property Law 59
Principle of S. 13 and 16:
a grant to an unborn child of an unborn child was void as

being upon too remote a contingency, and that a grant
which was intended to take effect after a void grant was
itself void
Therefore, the situation is this that:
A grant to Mt. Ram Kali for life, with remainder to Data Din,
dependent upon the contingency that there were no sons or
grandsons or daughters alive at the time of Mt. Ram Kali's
death
The condition is this that RK’s male descendants would get the property if
there are any at the time of her death. If not then the property goes to D.
the gift in favour of Data Din was dependent upon the failure of the prior
interest in. favour of the daughters, the result is that the gift in favour of
Data Din must also fail.
If there is a void transfer before a valid transfer then the subsequent valid
transfer also becomes void.
Satyanarayan v. Manikyan
Facts:
a person A created a life estate in favour of S, and an absolute interest in

favour of the unborn sons of S.
Before the birth of the sons, S

executed a relinquishment deed with respect to his life interest in the
property in favour of his father.
Issue: Whether the relinquishment deed has the effect of nullifying the
absolute interest of S’s sons?
Property Law 60
Interpretation of S.16 is based on the English principle of “a limitation
following upon a limitation void for
remoteness is itself void even though it may not of itself transgress
the rule against perpetuity”
(1) there should be an interest created for the benefit of a person or class
of persons which must fail by reason of the rules contained in Ss. 13 and
14. (2) There should be another interest
created in the same transaction. (3) The other interest must intend to take
effect after or upon failure of prior interests.
Under S.13 and S.14, a transaction fails if: (1) the transfer inter vivos
cannot be made directly to an
unborn person but must be preceded by a prior disposition in favour of a
living person. (2) the
interest given to the unborn person is the whole of the interest remaining
in the transferor. (3) if the vesting of interest is beyond 18 years (minority)
In this case, the prior interest has not failed and hence the subsequent
interest can also not deemed to have failed. S’s relinquishment does not
result in the failure of the interest in favour of the unborn child.
once the gift to the unborn

person is valid under S. 13, no one can defeat such interest and the
unborn person acquires vested interest on his birth.
Conclusion: The interest of unborn not defeated.
Ram Newaz v. Nankoo

Facts:
a person A, executed a sale deed of his land, (minus two bighas of it) in
1884 in favour of B. With respect to two bighas of his land, in the
document he provided
as follows:
Property Law 61
The 2 bhigas will be with A for life interest, and they will pass to my
descendants (aulad khas). If there are no living descendants then the
property (2 bhighas) will go to B.
Issue: Whether this condition is valid as per S. 13?
The word used is descendants. This means that had there been
descendants of A, they all would have continued to receive a life interest
perpetually.
The interest created is not limited to one unborn but generations of

unborn.
Even though A’s son died childless, the deed is still defective no matter
the reality. The condition itself is void because of S.13.
Since the interest in favour of the vendee is subsequent to the failure of

interest in favour of the unborn descendants, it is void. Because the prior
interest itself is void.
Conclusion: the deed is hit by S.13 because unborns are receiving life
interest and not absolute interest. Therefore, vendee’s claim fails
because of S.16.
Siddaraju v. Gangadhara
Facts:
Chowdamma had given 38 guntas to S. The remaining guntas was given

to G who was a minor then.
C kept some land for her lifetime and was later to be given post-death to
G.
This means that C was life-interest holder of some property. She has
already transferred the whole property to S but she kept some property as
life interest.
C then gave that life-interest property to G.
Held:
A life interest is a limited interest even if the person is the original settler
of the property.
Property Law 62
Ram Prasad v. Ram Hazra
Facts:
There was a partition suit between two brothers T and K
any party in case of disposing or transferring any portion of his share,

shall offer preference to the other party, that is each party shall have the
right of preemption between each other.
T sold Block A to one G after

obtaining K's refusal to preempt the same.
K sold property to RP
G later sold property to RH.
RP claims that they had pre-emption and hence RH does not have the
title.
Issue: Is the right of pre-emption in violation of the rule against

perpetuities?
Right to pre-emption goes to the next transferees because this is a matter

of contract/personal covenant. It is not a covenant that runs with the land.
The reason why the court interpreted this clause of pre-emption to apply
to the next transferees is because of the intention of the contracting
parties. There is no contrary intention to show that the parties did not
want the pre-emption to flow to the next transferees.
The pre-emption was intended to be carried to the next transferees.
Right of pre-emption is a right in the vicinage of the deed. This

means that anyone who comes in the vicinity of that contract is bound by
Property Law 63
the right to pre-emption.
Rule of perpetuity affects the rights of property only and not the making of
contracts or contractual rights.
The rule does not apply to personal contracts which do not create an
interest in the property.
Pre-emption is a right connected with a person. (who gets the

property, rather than being related to what is the
feature/characteristic of the property) therefore, it is linked with the
person and hence with the personal contract (not with the land)
Therefore, rule against perpetuity does not apply.
Raji Singh v. Thakurain Kaur

Facts:
RB had estate, died and then was left with two sons. RS is the eldest son,
while TK is the widow of the younger son.
5 properties were given by will to TK’s husband. Other inheritance went to

RS.
After TK’s husband’s death, the elder brother wanted to claim those
estates as his own. RS claims that TK has no right to claim those
properties after death of the younger brother.
RS argued that young bro only had life interest.
Issue: How should the will be constructed? Did the will give only life
interest?
The will is not supposed to be interpreted through stray expressions, but it

should be interpreted in toto.
The objective of the testator is to make the will and bequeath properties
for “generation after generation” of the younger brother.
Property Law 64
The will places a restraint of alienation on the property that the person
cannot transfer it. This indicates that there is a life interest.
In cases where the intention of the testator is to grant an

absolute estate, an attempt to reduce the powers of the
owner by imposing restraint on alienation would certainly
be repelled on the ground of repugnancy; but where the
restrictions are the primary things which the testator desires
and they are consistent with the whole tenor of the will
The will also intended to create subsequent life interests in favour of heirs
of the brother. The word ‘heirs’ includes unborn children and wife. So life-
interest created in favour of unborn children fails. But that in favour of the
wife succeeds, so the wife acquires life interest because she was alive.
The court relied on the principle of S.15 about transfer to a class.
Class Notes
Section 13:
Transfer can be made for the benefit of an unborn. But the whole interest
has to be given, a limited interest cannot be created.
The transfer is only possible through a specific method:
Create a life estate for a living person
Then after the child is born, then the child acquires absolute title to the
property, but acquires possession only after the living person is dead.
OR
Create a trust.
The logic here is that a direct transfer to an unborn is a very remote contingency.
And it would lead to a lot of uncertainty.
There cannot be a direct transfer because the transfer has to be inter vivos.
Property Law 65
Who is an unborn?
A person not in existence. It includes even if the person is in the womb or if not
even conceived.
Transfer to living persons for the creation of life interest can be successive.
The intermediary living persons act as bridges to the unborn child. Once the
unborn is born then the title is passed on to the daughter but not the possession.
Possession will go to the daughter after all life interest has been exhausted.
The life-holders retain the possession.
The moment the unborn is born, they get vested interest including the right to
alienate the property. But they still do not have the possession. Possession
can only be given when the existing life-holder dies.
So can you alienate when you just have a vested interest and not the absolute
interest? But since unborn has the right to alienate, they can do so even if they
do not have possession.
Section 14:
It is the rule against perpetuity (you cannot govern your property from your
grave)
Section 14:
says that one can delay the time when vested interest is gained until the
age of minority, but not beyond that. Therefore, if there is no contract to the
contrary, the vested interest is received at birth. But it can be delayed till minority.
You can control your property through the life of one or more persons and till the
minority of the last receiver of property. Meaning- till the last life-holder’s death
+ up till age 18 of the person for whom an absolute interest is to be created.
(lifetime of a living person or more + the minority of the unborn after which
the property gets finally vested into the unborn child)
This age of minority is the age of 18 years, it is the legal minority and cannot be
changed by contract.
Property Law 66
The whole logic is that the right of the owner to transfer should not restrict the
alienability of the property for a very long time. (Rule of Perpetuity comes into the
picture here)
Section 15:
Benefit for a class of person, some of whose interests fail because of s. 13 and
s.14. Then only the transfer to that failing persons fail, but not the whole class.
Section 16:
(1) there should be an interest created for the benefit of a person or class of
persons which must fail by reason of the rules contained in Ss. 13 and 14.
(2) There should be another interest
created in the same transaction.
(3) The other interest must intend to take effect after or upon the failure of prior
interests.
Section 18: Is an exception to S.14, S.16, S.17

if the transfer is for the benefit of mankind.
Session 11: Contingent and Vested

Interests
My Notes and Cases
Usha v. Visweswariah
Held:
An interest is a vested interested when there is an immediate right of

present enjoyment or a present right of future enjoyment.
Contingent interest is based on the happening/non-happening of an

event. On the happening of that event, the contingent interest becomes a
vested interest.
Property Law 67
Rajesh Kanta Roy v. Shanti Debi
Facts:
A trust was created by A for the payment of debts and the surplus was to
be used for the benefit of A and his two sons.
The trust was to come to an end with the total payment of debts and the
death of the settlor and then the property was to vest in the two sons, or
to their legal heirs as the case may be.
The trust deed also provided that if any of the sons died before the trust
came to an end, his heirs would represent him and were to be entitled to
the benefits under the trust.
The widow of another of A’s sons’, (who had died before the creation of
the trust) wanted to execute the decree passed in her favour, against the
interest that the sons had in the trust property. The decree could be
executed against these interests only if the sons had a vested interest in it
and not a contingent interest, as contingent interests are not attachable.
Issue: Is the trust a vested interest or contingent interest?

This question shall be answered with respect to the intention of the

settlor. And the trust deed has to be interpreted in light of that intention.
The sons get property after (1) the debts are paid, and (2) the settlor is
dead.
The settlor is very particular about the fact that the debt be settled only
then the sons get to enjoy the property.
But the impact of such a condition that debts be paid creates a charge on
the receivers of the property. This means that after death (2), the
receiver’s get the property but that property has a charge to be paid.
Property Law 68
The trust is sufficient to pay for the existing debts and thus, the payment
of debts does not necessarily imply an uncertain event in this case.
Therefore, even payment of debt is a certain event.
Thus, the vesting of right is not delayed. The vested interest is already
created but the enjoyment of that property is subject to payment of all
debts. Thus, the debt becomes a charge. The conditions are certain.
Conclusion: The deed has delayed the enjoyment of interest but the title
is vested with the condition when the settlor dies and then the debt
become a charge. Thus, vested interest is heritable.
Kokilambal v. N. Raman
Facts:
K settled properties that she had inherited from her husband, in favour of
her husband’s sister’s son B.
K was childless and wanted to adopt him. According to the terms of the
settlement, the property was to be enjoyed by her and V during her
lifetime.
V was authorised to collect rents. The remaining amount is to be divided

between between A and B jointly.
She relinquished her individual right to alienate the property but the deed
provided that both of
them had the right to alienate the same jointly.
Property Law 69
V died during K’s lifetime, whereupon K revoked
this settlement and executed a fresh settlement in favour of her brother’s
daughter D, and her husband DH.
V’s legal heir contended that V had acquired vested interest in the
property. K had created a life interest in the property and had no right to
revoke the settlement and make it afresh.
Issue: Whether the interest created is contingent or vested?

Learned counsel for the respondent has tried to interpret this document
that since the appellant No. 1 had already divested her right to alienate
the property that should be enough to show that the entire property stood
vested in favour of Varadan.
The SC says that K never wanted to vest any right in favour of V. K

retains rights with herself.
this settlement in no uncertain terms lays down that the properties in

question will vest absolutely after the death of the appellant No. 1 and
during their life time, both will enjoy the usufructs but Varadan would
collect the rental income of the aforesaid property.
The SC reads the will that there is one important right that has not been
given to Varadan absolutely. If she were vesting a right, alienation is
passed on in a vested interest case. In vested interest, one can only
postpone possession, but here Kokilambal has postponed the right to
alienate itself. Thus, her intetnion is to retain rights over the property.
Even during their life time if the property was to be

alienated then the same would be alienated by them jointly
meaning thereby that the appellant No. 1 continued to hold
the property during her life time and both of them were
permitted to enjoy the usufructs of that property.
Therefore, it is not a vested interest.
Property Law 70
Debi Shankar v. Nand Kishore
Facts:
There was a religious endowment and D was supposed to be the first

manager til 21 years. After this R was to be appointed for next 21 years.
Then S was to get the management. After this the eldest sons of D, R, S
in that order.
R died before the completion of his term. Then S had also predeceased
him. So R’s eldest son laid claim to the management for the unexpired
portion of the term.
Issue: Who gets the right of management after R’s death?

The right of managership given to the three is a personal right and does
not mean that this right also vests in their children for the unexpired term
if any.
The passage of managership is clearly laid out and that has to be upheld.
The underlying principle of S. 27 is applicable:
Conclusion: Thus, this situation has only accelerated the transfer to D’s
eldest son.
Official Assignee v. Vedavalli

Facts:
A will was made. The will said that the estate will go to grandsons born
within 10 years after the testator's death. If there are no such grandsons,
the property goes to the testator’s granddaughters after the testator’s
wife’s death.
Property Law 71
The testator’s son is missing. The grandson claiming the property was
born two years after the death of testator but property could not be
transferred to him because he was unborn at the death of testator
(transfer was not inter vivos)
Issue: Given the circumstances, do the granddaughters have the

property (ulterior disposition) or is the property intestate?
The intention of the testator is to be given effect. The testator wanted to

prioritize their grandson over their granddaughters. Thus, the testator
appears to have preferred a bequest in favour of grandson even if there is
an existing granddaughter.
Thus, the interest has failed because of intestacy. But from the intention
of the testator, he would have intended to accelerate the property’s
possession in favour of the grandson over the granddaughter.
Thus, the testator did not contemplate that the bequest would fail
because of intestacy. The word ‘contemplated’ as used in S.27 refers to
the testator’s state of mind while drafting the document/contract and not
the words/language of the will.
The bequest in favour of the grandsons is itself void. Because, the

property hangs in mid-air for 10 years because transfer to the grandsons
is not possible (not inter-vivos) and if this is not possible, then the
property has to wait for 10 years before it can be given to the
granddaughters. Hence the whole transfer fails.
Conclusion: the daughters do not get the property. The property will be
passed intestate.
Sures Chandra v. Lalit Mohan
Property Law 72
Facts:
dispute is about the inheritance of the estate. The testator left behind a
childless widow. The widow also died.
One party contended that the widow received the absolute interest and
hence the property should pass on to her heirs. Other contended that she
received life interest and the property should go to heirs of the testator.
Issue: Did the widow have absolute interest or life interest?

Reasoning of the court:
The fourth clause of the will declares the widow as the absolute owner if
the testator dies childless.
There was also a clause which said that a gift had to be made to the
nieces if there was no child adopted or born to the widow.
The appellants say that giving a gift when there is already an absolute
interest and then the gift clause is repugnant to the absolute interest.
This position is recognised in English law
a departure from the literal meaning of the words used

is not justifiable, unless it be clear that the testator himself
intended something different therefrom
whensoever the words of a deed or of the parties without

deed may have a double intendment, and the one standeth
with law and right, and the other is wrongful and against
law, the intendment that standeth with law shall be taken
But where the intention is clear from the document itself and there are no
two intentions possible then that very intention which can be inferred from
the plain meaning of the test prevails.
Thus, the intention of the testator is clear he wanted to give absolute

interest to the widow. The gift is repugnant and is hence void in law.
Property Law 73
The will cannot be interpreted to mean that there was only life interest
and then there was a gift just to “perfect” the will as per the court’s wishes
and save it from repugnancy. The testator’s intention would prevail.
Conclusion: The heirs of widow get the property.
Class Notes
Absolute Interest: Entire bundle of sticks is transferred, power of alienation ad
possession and enjoyment everything is transferred. The transferor holds
nothing.
Vested interest: The transferor holds back some sticks from the bundle of
sticks. Eg- possession or enjoyment may not be transferred. But hereditary
right to transfer is passed on. A Vested interest can be transferred and
inherited. When the right is contingent on an event certain to happen. Eg- death.
Contingent interest: happening of an event not certain (condition precedent

which is also uncertain). This interest is not heritable.
Section 23:
The contingency cannot be such that the property is in suspension or hangs in
the air.
Conditional Transfers: Section 25

lays down the conditions prohibited by law. Apart from these, conditions
precedent can be imposed. An interest will fail if it is based on a void condition
under section 25.
If Condition Precedent is void, then the transfer fails.

If Condition Subsequent is void, then the transfer is valid, and such a
condition can be ignored.
Property Law 74
Section 26: Substantial fulfilment is also fine. But this only happens when it is
impossible to fulfil the conditions in its entirety. The idea of prop law is to facilitate
transfer. Therefore, it allows substantial compliance.
Section 27: If one interest is created and that interest has to be disposed of
later on (in the same transaction and the disposition should be of the same
interest), then:
If the prior interest fails, then the ulterior disposition takes effect (it gets
accelerated)
But if the parties intended that the ulterior disposition is to take effect only when
the prior interest fails in a particular manner, then the ulterior disposition does not
take effect unless the prior interest fails in that manner.
The principle here is that the property cannot be suspended without
ownership.
This is different from the failure of interest as per S.13, S.14, S.25. In this
case, the prior interest is not void in law but fails for reasons other than
legal invalidity (like time, death, age, etc.)
Section 28: An ulterior transfer is possible when it is supposed to happen

on the happening or non-happening of an event but it is subject to: 10, 12,
21, 22, 23, 24, 25, 27
Section 29: If the condition is valid, then the subsequent condition also has
to be fulfilled. Else the transfer fails.
Section 30: Prior disposition is not affected by the invalidity of the ulterior
disposition
Session 12: Doctrine of Election and

Apportionment
My Notes and Cases
Property Law 75
Ramayyar v. Mahalakshmi
Facts:
RS made a will in favour of widow. RS gave her estate for life.
Widow alienated property and used money from that to buy another
property which is in possession of defendants.
This is all that’s important from the case.

Held: A person taking no benefit directly under a transaction but
deriving a benefit under it indirectly, need not elect
Class Notes
Essentials of Section 35:
First Paragraph:
The transferor does not own the property
The transfer to the transferee and the benefit to the owner is conferred in the
same transaction
The owner must elect to either affirm the transaction or reject it. The owner
cannot take the benefit and also reject the burden (that is to part with
his own property)
Second Paragraph:
BUT,
If the transferee stands disappointed, then the transferor has to compensate

the transferee if the transaction does not come through.
Third Paragraph:
Property Law 76
Election applies irrespective of the transferor’s knowledge about whether the
property belongs to him or not.
If a person receives indirect benefit, they may not elect and can have the
benefit without incurring a burden
A person can take the benefit in one capacity and may reject the benefit in
another capacity.
Exceptions: The party has no right to elect or deemed to have exercised

that right
Fourth Paragraph:
Owner only has to forgo that benefit that is expressly in lieu of the property.
Any other benefit under the same transaction can be kept.
Fifth Paragraph:
Election is deemed to be made if a person is aware of his duty to elect and

also of the circumstances required to reach a good decision
Also deemed if he waives enquiry into those circumstances
Sixth Paragraph:
Such knowledge or waiver shall be assumed if the person has enjoyed the
benefit for two years without doing any act to express dissent
Provided that there is no evidence to the contrary (rebuttable presumption)
7th Paragraph:
Such knowledge or waiver is inferred if any act is done by the owner due to
which the parties cannot revert back to the previous position as if the act was
not done
For eg- I receive a benefit and I exhaust it. It will be deemed to be an

election of assent
8th Paragraph:
Time limit: after one year of transfer, if the owner does not elect then the
transferor can ask him to make the election. If the owner still does not elect
Property Law 77
after the notification within reasonable time, then also deemed to have
confirmed the election.
Section 36: Apportionment by Time.

If there is no contract to the contrary, all rents are distributed in proportion to the
time for which they are respective owners.
Apportionment does not happen if there is a contract or local usage to the

contrary.
Section 37: Apportionment of Benefit of Obligation on Severance
Basically the tenant must give proportionate rent to all co-owners of the property
in proportion of how much part of that estate they hold.
But if dividing this rent or whatever that is owed becomes very difficult or creates
excessive burden on the duty performer/payer.
The principle is that apportionment is meant to resolve disputes, it cannot be that

it becomes troublesome to distribute the rent or duty or whatever is owed.
A person will be liable under this section only when he has notice or knowledge
of the respective contribution of the transferees.
Session 13: Doctrine of Lis Pendens

My Notes and Cases
Bellamy v. Sabine
Facts:
A person, Mr. X, sold an immovable property to Mr. A.
Property Law 78
Mr. X’s son, Mr. Z, who was the heir of Mr. X, sued Mr. A in a competent
court to declare the sale as void.
However, while this litigation was pending, Mr. A sold the property to Mr.
B, who did not take notice of the suit.
Reasoning: A property lis pendens cannot be transferred because

litigation clouds the validity of the transferor’s title. And thus you
cannot pass what you do not have.
The effect of the applicability of the doctrine is that it does not annul the
conveyance, but only renders it subservient to the rights of the parties to the
litigation. The transferee will be bound by the result of the suit or proceeding,
whether or not he had notice of the suit or proceeding.
Faiyaz Husain v. Munshi Prag Narain

Facts:
NK got a property and mortgaged it. He then got a decree of sale and
sold the property to PN.
FH objected to this. Before NK got the decree of sale, there was a second
mortgage given to MM. MM got a decree of sale and sold it to FH.
The mortgage to MM was made when NK had already instituted a suit for
getting the decree of sale.
The doctrine of Lis Pendens applies. Pendente lite neither party to the
litigation can alienate the property in dispute so as to affect his opponent.
Conclusion: PN has no title
Property Law 79
Dalip Kaur v. Jeewan Ram
Facts:
There was litigation, it was concluded but then there was an appeal made
by special leave
Issue: Does an appeal imply a continuation of the proceedings and is lis

pendens applicable
Appeal is also a continuation of the proceedings
Lis pendens is hence applicable and the effect of the law will be
applicable to all parties. The new transferee will be bound by the result of
the court.
Because an appeal again clouds the rights of both parties and the same
logic of lis pendens doctrine would apply
Class Notes
This example explains J. Turner’s reasoning for applying the doctrine of lis
pendens
This is why the present section incorporates a rule that makes all alienation of
the property that is the subject matter of a dispute, pending in a court, awaiting
disposal, subject to the decision of this court.
Property Law 80
Pendency- Starts with the filing of complaint and til the discharge of the
court order. Lis pendens continues till appeal and also the execution of the
court’s order.
Suit- legal measure, action etc.
Lis Pendens is not applicable to court sales (obviously)
Property Law 81
Collusive suit- a suit by conspiracy a sham or pretentious suit. basically a
not genuine suit
Notice is not required because the doctrine of lis pendens is based on the
rule of expediency.
There must be a dispute with respect to a specific right
The prohibition that such property cannot be transferred or otherwise dealt
with by any party to the suit shows, that if the alienation is by a third party,
then the doctrine will not apply
Ordinarily, the judgment binds only the parties to the suit, but he who purchases
during the pendency of action is bound by the judgment that may be made
against the person from whom he derives title, irrespective of the question of the
notice69 as if he was a party to the
suit.
the transfer pendente lite is not void but is only subject to the outcome of
the litigation. The transfer is thus voidable at
the instance of the affected party, except to the extent that it may conflict with
rights decreed under the decree held to be valid and operative as between the
parties. The transferee only takes the transferor's title subject to the
pending litigation's result. The rule does not annul the conveyance but only
renders it subservient to the rights of the parties to the action, as
determined by the decree.
Session 14 and 15: Sale

My Notes and Cases
Jagdambai v Suresh Kumar
Facts:
J is the widow of M. M died and J succeeded the property as the sole

heir.
M had deserted J and had allowed the defendant to collect rents and has
given tenancy to others. J wants to secure her possession.
Property Law 82
The property has also been sold to defendants and J has to secure her
possession. The first defendant claims that he is the descendant of the
second wife of M.
The first defendant argues that J is only entitled to maintenance as per

the will of M.
J contends that first defendant is an orphan and the will was not probated.
The FD fabricated the will.
J has been unable to prove her claims.
But the buyers of the property are not bona fide purchasers because the
sellers have mentioned about the denial of parentage of the seller.
The buyers should have enquired whether FD is the son of M or not and
thus does he even have title to sell the property.
Conclusion: The buyers are not bona fide purchasers and hence they
must give the property to J.
Sachida Nand Sharma v. State

Facts:
SR executed sale deed for SS but it was declared void because SR was
held to be a minor.
SR had executed the sale deed on behalf of his brother. but there is
nothing to show that he had any competent authority to act on behalf.
SS argues that the property was transferred out of necessity for the
benefit of minors.
There is not an iota of independent evidence that the sale deed was
executed for the benefit of the minors.
There is no explanation that if the mother, the natural

guardian, was alive why she could not have executed the sale deed.
Again there is not an iota of evidence with regard to her alleged illness
Property Law 83
If Jai Ram Pandey went missing, his wife, the natural guardian of
respondents was available and could well have executed the sale deed
on behalf of the minors. There is no evidence on
record with regard to her alleged insanity.
The Sale Deed was not executed by an authorised person.
Conclusion: the deed is void ab initio because it is not given by

authorised person.
Ram Jiwan v. Deoki Nandan

Facts:
Land was given by AM. He gave a part of it to RJ and the other part to
DN.
DN discovered that the part that they were given, there was already a
sales deed in favour of RJ. Therefore, there is dispute on the title to that
plot of land
Issue: Whether the sale deed for RJ is genuine and valid?

The sale deed is valid but there was some error in its description. But the
person is able to prove his claim over the property even though the sale
deed mentions another property.
The person has been able to prove that the property intended to be
conveyed was in fact correct, there was only inadvertent misdescription.
All other details are correct, only the name of the property is wrong.
The identity of the property is well established and there is only

misdescription based on certain error. The boundaries are correctly
mentioned.
Conclusion: The Sale Deed is valid and confers absolute title.
Ashok Kumar v. Chief Revenue

Facts:
Two brothers bought land from C. Its market value was declared and
stamp duty paid.
Property Law 84
There was a building on the land but it was not sold because C did not
have rights over it.
The collector held that building was part of sale of land and hence stamp
duty should be calculated accordingly.
Plaintiffs argue that the building was expressly excluded from sale so its
value should not be taken into account.
The defendants argue that the sale deed was for immoveable property
and the building is also immoveable because it is attached to land.
Issue: Whether the value of the building will be taken into account for
estimating the stamp duty?
There is a specific exclusion of the hotel building. C had no title over the
building and hence could not have sold it through sale.
Section 8 becomes relevant which says that if there is a contrary

intention, then land + building cannot be interpreted to be sold through
the same instrument.
C had no ownership over the hotel and anyway she had indicated
express intention that only the land is being sold.
Conclusion: building will not be included to compute the stamp duty.
Madam Pillai v. Badrakali

Issue:
Property Law 85
whether a transfer of land of the value of more than Rs. 100-0-0 by a husband
to his wife to be enjoyed by the latter during her life time in discharge of her
claim to future maintenance can be made without writing
If we are to consider this transaction a sale, we need to find out whether

the wife paid a price. Whether her forbearance to claim maintenance in
the future amounts to a price.
Price includes money only and it cannot be given a broad interpretation to

mean any consideration. That would become an exchange.
This case is also not an exchange because no ownerships are

exchanged by either. First of all, the husband does
not transfer the ownership of the. land, and secondly, the wife does not
transfer the ownership of anything.
Haryana Financial Corp v. Rajesh Gupta

Facts:
HCF had forfeited the earnest money paid by RG
HCF had given a tender and RG was the highest bidder, but RG wanted
to rescind the sale because there was no passage to the factory through
which a truck could be passed.
Therefore, there is problem with respect to passage to the factory and this
was not mentioned in the sale deed.
The HCF argued that RG purchased the land on an ‘as is’ basis they had
he opportunity to inspect and then make the payment
RG argued that the seller has hidden a material defect and they cannot
be allowed to take advantage of their own wrong.
Issue: Whether the sale is valid?

RG had requested information from HCF and informed them about the
lack of passage. But there was a lack of response from HCF.
Property Law 86
RG had informed HCF that the passage is not connected to the factory
and there is no other way to access the factory without trouble or
excessive burden.
RG was also dealing with a state entity and there was legitimate
expectation of fairness. Without independent passage, the land would be
unfit for setting up a manufacturing unit.
The fact that there is no independent passage is a material defect that the
seller has not disclosed. Therefore, the HCF cannot be allowed to take
advantage of its own wrong/ fault.
Conclusion: The earnest money be returned.
Muhammad Rafeeq v. Bank of Baroda

Facts:
Petitioners purchased property from X who had used it as a security by

borrowing amount from Bank. X is a defaulter.
The petitioners argue that the property sold to them should be marshalled
as per S.56. X also had another property that was mortgaged.
The debt should be collected from the second property and then only with
the first property that is with the petitioners.
Issue:
Marshalling means that the buyer is entitled to have the mortgaged debt
satisfied out of the property or properties not sold to him
But this marshalling is overridden by the SARFAESI Act because there is

a non-obstante clause (the provisions of SARFAESI has effect over any
other inconsistent right)
Property Law 87
Class Notes
S. 54:
Sale: Ownership is sold for a price. The entire bundle of sticks is transferred.
Price has to be money consideration.
Sale can be completed with registration even if the price is promised to be paid
later on. For instance
A promise that price will be paid within a year is valid, but if it

is not paid the seller cannot set aside the sale
But the promise made has to be genuine. If the promise itself is not genuine
then there is no “promised to be paid”.
For tangible immovable property more than 100, registration is required
For less than 100, registration is not mandatory, it can be given via delivery
as well.
Here, the value of property matters and not the price a which it is sold. If the
property is valued more than 100 but the parties settle on the price of 99 it still
has to be registered.
The law recognises only two modes of transfer by sale, one by

a registered instrument and the other by delivery of
possession of
property.
Contract for sale or Agreement to sell: it does not create any legal relations on
its own. It is merely a document or an agreement that
gives a right to obtain another document, i.e., a sale deed.
S. 55:
(1) The Seller has to
(a) disclose material defects (not found by ordinary care)
Property Law 88
Material defect is any such defect that can alter the decision of the buyer. Or
such defect could also affect the buyer’s enjoyment for the property.
(b) produce the ‘chain of documents’ on their request
(c) to answer relevant questions
(d) execute a conveyance/sale deed
execution means signature or affixing his mark
(e) take care of the property as an ordinary owner
between the execution of conveyance and the actual delivery of the property
(f) pay all charges, encumbrances, interest
(2)
(3) Regarding the documents of the property
General rule is that the owner has to give the chain of documents to the buyer
when whole money is paid.
BUT:
When seller retains part of propety: seller can keep the documents
When there are multiple buyers: the buyer with the most valuable part of the
property.
But they still have to give it for every reasonable request
And they also have to keep the documents safe unless there is an inevitable
accident or fire.
(4) The seller is entitled to all rents and profits till ownership is with him.
(5) The Buyer has to:

(a) tell seller about a fact that increases the value of the property
(b) pay or offer to pay the money at the time of completing the sale
Property Law 89
Offer is important because the seller may reject the price but buyer can argue
that at least he offered it, so offering to pay up also suffices.
(c) bear losses if property affected after ownership has passed not caused
by the seller
(d) pay all interests and rents after the property is passed to buyer
(6) The buyer is entitled to benefits arising after ownership is passed.
What is fraudulent: Failure to disclose material defects (fraud by seller) and

if any fact raises the value of property (fraud by buyer)
S 56: Marshalling
Session 16: Mortgage

My Notes and Cases
Ram Nath v. Baij Nath
Facts:
A borrowed money from B by executing a sale deed

with respect to his property.
The conditions incorporated in the deed were that if A repayed the money
within a period of two years the property would be reconveyed to him.
Possession of the property is given to B.
Issue: Is this a sale or mortgage?

Nature of transaction is to be determined by facts and circumstances of

the case and not by what is written on the letterhead.
The words of the sale deed also indicate “that the seller is ready to
mortgage the suit property” and “conditions of sale” A sale is an absolute
transfer, and this conditional nature makes it.
Property Law 90
Conclusion: The property is mortgaged.
Chennamal v. Munimalaiyan
Facts:
M executed a simple mortgage of three properties for securing the

repayment of money that he borrowed from C. He was unable to repay
the money by the stipulated time and he entered into a second contract
with C
As per this contract, he sold one out of the three properties to C with a
right to repay within a period of three years, for Rs. 3,000. Rs. 3000 is the
principal amount that was left to be repaid. The property was worth much
more than that however.
M filed a suit for redemption of the mortgage. C claimed that since it was
a sale with an option of re-purchase, and three years were over, M had
lost the right to exercise the option of re-purchase.
Issue: Whether the third property is a sale deed or a mortgage by

conditional sale?
The trial court had declared that the property was mortgaged by
conditional sale, thus even after 3 years C did not acquire absolute
ownership over the property.
C argued that the sale was an absolute sale and there was only a right to
repurchase.
The deed by words indicate that there is a right to redeem and the deed
also says that failure to pay the amount would make the sale absolute.
The determination of the nature of the deed (whether it is a mortgage by

conditional sale or absolute sale with a right to repurchase) is to be
determined by the plain clear words of the deed. If there is any ambiguity
then, other circumstances are to be taken into account.
To distinguish between a mortgage by conditional sale and a sale with a

re-purchase agreement, the following principles can be referred to:
Property Law 91
1. In the mortgage, the debt subsists and the right to redeem remains
with the debtor (here the debtor continued to pay the kisht of his
debt which suggests that there was a relationship of debtor and
creditor)
2. The condition to re-transfer is expressly mentioned in the deed.
3. A mortgage by conditional sale is effected by a single document,

while a sale with an option of re-purchase is generally affected with
the help of two independent documents.
4. In mortgage, the value of transfer may be less than the actual value
of the property (as in this case, the property is worth 12000 but
given for only 3000)
5. In a mortgage with conditional sale, since this is a mortgage

transaction, the right of redemption subsists in favour of the
mortgagor despite the expiry of the time stipulated in the contract
for its payment. The mortgagor has the option to redeem the
mortgage and take back the property on the payment of the mortgage
money, after the specified time, but in a sale with an option of
repurchase, the original seller must re-purchase the property
within the stipulated time period. If he commits a default the option
of repurchase is lost.
The court held here that as the consideration was one-fourth of

the value of the property, and the contract took place with the help
of a single document, the presumption was that it was a mortgage
by conditional sale
Conclusion: The deed is a mortgage by conditional sale.
Shanti Devi v. Nand Lal

Facts:
A required money to pay a previous mortgage. He borrowed Rs. 17,000

from B and kept his immovable property valued at Rs. 60,000 as security
for its repayment.
Property Law 92
The contract provided a time period of seven years for its repayment. The
mortgagor was unable to repay the loan amount within this period of
seven years.
Issue: Is the contract a mortgage by conditional sale or a proper sale

deed?
the plaintiff is in need of money for his domestic affairs and to re-pay the
loan of Gyarsilal, hence the plaintiff thought it proper to mortgage this
property with conditional sale for some period and that period was
determined to be seven years
Merely because the word transfer is mentioned in the deed, does not
make it a deed of transferring the title. Even the mortgage section
mentions the word ‘transfer’.
The defendant has further been termed as mortgagee at various places in

this document and the plaintiff himself has been termed as mortgagor
Thus, if the mortgagor pays the money in the given period, he acquires
the right to redemption and can get the property redeemed. The right to
redeem is not extinguished by the expiry of the period.
Also the conditions as laid in Chennamal v. Munimalaiyan are fulfilled: the

transaction is by same instrument and not two different instruments,
the value of transaction is less than the value of the property.
Conclusion: This is a mortgage by conditional sale.
Nidha v. Murli Dhar (Zuripeshgi Lease)

Facts:
IL gave property as allegedly mortgaged with possession to IS for 14

years.
The instrument said that “After this period, IS has to give back the
property even if money is not paid”.
Issue: Is this a mortgage?
Property Law 93
There is no security pledged and no right to redemption expressed or

implied.
Conclusion: The deed is not a mortgage. It is a zuripeshgi lease
Class Notes
Difference between: Pledge/ Hypothecation/ Mortgage
Mortgage: transfer of an interest in an immovable property for security of a loan
or something of that nature
Pledge: Similar to mortgage but it is only for a moveable property. Here the
possession is also lost
Hypothecation: Here also the property is moveable, here some interest is

transferred but the possession remains with another.
Essentials of Mortgage:
Transfer of interest for security
Specific Interest Specific Property: This means that the property should be
sufficiently identified. The property description should be as specific as
possible.
Money advanced or to be advanced: Money can either be paid there and

then, or proposed to be paid later on.
What are the principles of Mortgage?
Equity- it has to be a borrowing transaction. There is a debtor-creditor

relationship.
Borrower is in need of Protection- a condition that penalizes the

vulnerable borrower is void. Because the lender can exploit the borrower,
so equity will side with the borrower
If the amount is not paid by the due date, then the property is forfeited.
This is the penalty faced for not paying. A forfeiture clause says: on
Property Law 94
default of payment the entire property will be with the Lender. But this is
against equity. The lender can liquidate the asset and get the debt
amount along with interest. The lender cannot take the entire property.
Section 58
Types of Mortgage:
Simple Mortgage: The property is not delivered to the mortgagee

(possession is not transferred), but the mortgagor pledges to pay the money
in due time. If he fails, then the mortgagee can sell the property to get the
debt cleared. The proceeds can be collected through a court order.
Mortgage by Conditional Sale: to be determined by the intention of the

parties. The sale will become absolute only when there is default. This
condition has to be explicitly incorporated in the deed. It is different from
English Mortgage in the sense that there is no transfer of interest ab initio.
The transfer is absolute only when there is default whereas in English
mortgage, the transfer happens ab initio. There is actual transfer in
English Mortgage.
In this ostensible stage, the person just acquires a potential right if the sale
becomes absolute. He may not even acquire the possession of the property.
A conditional sale is just a surety. In a sale, there is absolute transfer of
ownership then and there.
A suit of foreclosure is requires to complete the sale. The sale is not
automatic even on default of payment. After default, the mortgagee can
get the foreclosure.
Usufructuary Mortgage: This is for people who had land but no cash. They
could give possession of land and allow the mortgagee to enjoy the usufructs
(profits, revenue, rents) arising from the land. Once he debt is settled via
usufructs return the property.
English Mortgage: Here, there is absolute transfer of property in favour of

the mortgagee and he has to re-transfer the property once the debt is paid.
The re-transfer amount is agreed upon by the parties.
Property Law 95
Mortgage by Deposit of Title-Deeds: This is largely in princely states, but
now applicable to more areas. Here the party delivers documents of title with
the intention of creating a security. This need not be registered. The delivery
itself suffices.
Section 59:
If more than 100 then mortgage has to be registered (except when it is a
mortgage by deposit of title of deeds)
Session 17: Right to Redemption

My Notes and Cases
Santley v. Wilde
Explained what a ‘clog on redemption’ is
Anything which is inconsistent with the idea of “security” the property

given in a mortgage is fundamentally a security and not a give-away of
ownership or any other interest.
Facts:
There is a mortgage which is of the following nature:
Issue:
Is this a clog on redemption?
Property Law 96
This is good in law. To get back a security, you have to pay the principal
amount along with the interest.
Here, the mortgator additionally has to pay one-third of the profit as well.
But that is fine because mortgage does not restrict the mortgagee to
collecting only interest.
A share in profits is also a security because the business may fail and the
mortgagee may lose their money. So the stipulation for getting profits is
additional collateral and will not be a clog. However, the bargain
should not be unconscionable or oppressive.
Conclusion: It is not a clog, defendant is entitled to the profits.
Achaldas v. Ramvilas
Facts:
A had mortgaged his property for a period of five years in favour of B. The
mortgage executed was a usufructuary mortgage wherein the possession
of the property was delivered to the mortgagee.
A failed to repay the loan within the stipulated period. The mortgagee filed
a suit for foreclosure and the mortgagor
filed a suit for redemption of the property. The court directed the
mortgagor to deposit the money in the court within a period of three
months, which he failed to do.
He deposited the amount after three years, and then applied for a final
decree from the court
Issue:
Property Law 97
Only the limitation act can limit the right to redemption. The right to
redemption kicks in when the amount becomes due.
Once a mortgage always a mortgage, this means that right to redemption

exists as long as the mortgage is alive
This means that a contract between the parties cannot take away the
right to redemption of the parties.
A suit of redemption is primarily to enforce the right to make payment and

get the property back.
the Court may fix the time for payment of the amount declared due but
default in depositing such payment would not
debar him from a right to redeem the mortgaged property.
Conclusion: The Right to Redemption persists and is not extinguished

by the mortgagor’s default.
SB Narain Das v. Surta

Facts:
The material fact is that the mortgagee is charging a very high rate of
interest which is higher than legally permissible.
Issue: Is high interest rate, a clog on the right to redemption?

Property Law 98
The mortgagor enjoyed benefits of the land and did not even maintain
accounts of the benefits so as to set it off against the debt.
Thus, the terms of the deed operate as a clog because the rate is also
very high, the person has enjoyed the income from the land.
Shivdev Singh v. Sucha

Facts:
A mortgaged the property for 7000 rs only. The mortgagor was financially
tight, and had poor financial conditions.
The mortgagee took undue advantage of this fact. The deed stated that
the property could not be redeemed before 99 years and the mortgagee
was enjoying the usufructs of the property as well.
Issue: Is the period of 99 years a clog on redemption?

The mortgagee’s argument that the other party cannot redeem the
property before 99 years is bad in law.
The RTR accrues the moment the money is paid back, it cannot be
restricted by a contract to the contrary. But the long period alone is not
contrary to the RTR.
But if the circumstances indicate that the undue advantage of a person

has been taken to unconscionably extend the period of redemption then it
is a clog.
RTR cannot be made impossible or illusory. Further, the poverty of a

person cannot be exploited, hence in this case there is a clog.
Seth Gangadhar v. Shankar Lal
Property Law 99
Facts:
The mortgage deed states that it cannot be redeemed until 85 years.
Post 85 years, if it is to be redeemed within 6 months otherwise the

mortgagor loses the right to redemption.
Issue: Are both these conditions a clog on RTR?

Here, the existence of the RTR itself is delayed, but once the RTR exists
it cannot be extinguished.
RTR arises when the Principal money becomes due. This means that the
payment of money becomes due only after 85 years. This means that
there is no obligation on the person to pay for 85 years.
The 85 year period is valid because the mortgagor was not oppressed or
taken undue advantage of in this case. This also means that the
mortgagor cannot demand the money for 85 years.
Mortgagor’s right to enforce the mortgage (get money back) and

mortgagee’s RTR are co-extensive.
The 6 month stipulation is a clog because RTR once arise cannot be

restricted by a contract.
Conclusion: The suit is premature because it is before 85 years.
Sangar Gagu v. Shah Laxmiben

Facts:
Property mortgaged. RTR arises after 99 years. But the heirs wanted to
redeem the property within 60 years. The mortgagee contended that 99
years was a clog.
The other side contended if 99 years is a clog then the mortgagee had
RTR from the day the deed was signed. But RTR is barred by limitation of
30 years.
Issue: Does a clog imply that the deed is void ab initio or voidable at the
instance of the suffering party?
Property Law 100

Firstly, the court found that 99 years was an oppressive time period
because the person was taken advantage of.
If there is a clog then when does the RTR accrue? Does it accrue on the
date of signing the deed (implying that it is void ab initio) or does it accrue
at the wish of the suffering party?
The period of limitation would commence only on the declaration of such

suit, this means that the deed is voidable and cannot be read as void.
The court says this because if the deed were to be read as void, then
there would be inequitable consequences. The person does not know the
deed is void only until they have proved that there is a clog. This means
that limitation would not kick in, because the person has not slept on
their right. In fact, they don’t even know they have a right.
They get their RTR only when it is proved that there is a clog. If they
choose to not exercise it further, and 30 years elapse then it would
tantamount to sleeping on their right.
Conclusion: Even though the deed is clogged, the RTR accrues when it
is proved that the deed is clogged and not when the deed is signed (not
void but voidable).
Class Notes
Section 60: Right to Redemption
Property Law 101

After mortgage money is paid or offered to be paid (but rejected) the mortgagor
has the right to get back the property, its possession, and papers and the
mortgagor can also direct the mortgagee to deliver the property to a third-party.
Right to redemption kicks in when the mortgage money is paid (this includes the
interest accrued)
The Right to redemption cannot be curtailed by a contract because it is a
statutory right. Thus, such a right is present even in mortgage by
conditional sale.
The right to redemption is exhausted by a suit of foreclosure and without such
suit, the right to redemption persists. Thus, court intervention and then an
execution of a deed in favour of the mortgagee will exhaust the right to
redemption.
L.K. Trust v. EDC Ltd.
India it is only on execution of conveyance and the

registration of transfer of the mortgagor's interest by
registered instrument that the mortgagor's right of redemption
stands extinguished is well settled.
Til registration the title is not passed so unless the title is passed, the
mortgagor retains his right to redemption.
The idea behind extending the right to redemption til conveyance and
registration is to protect the interest of the mortgagor in getting the property
back.
Even though technically right to redemption should extinguish when the

mortgagee has obtained a decree or foreclosure, but practically, the right to
redemption persists until the sale is complete (i.e. transfer is registered)
Mortgagor is required to give a notice of his intention to redeem and
should also have fulfilled his obligations under the mortgage deed.
Clog to the Right to Redemption
Property Law 102

Right to redemption is subject to the mortgage deed, this means that the parties
cannot create a ‘clog’ that bars or impedes the exercise of right to redemption.
Any condition in the mortgage deed that prevents, evades, hampers

redemption is considered void. Right to redemption cannot be made
irredeemable or illusory.
When the terms are unconscionable then also the court is justified in relieving
the mortgagor from the effects of the bargain:
If the bargain was to take advantage of the vulnerable position of the

mortgagor
Was the condition imposed upon
Mere long time period is not a clog, unless the period is oppressive and
unreasonable.
Examples of Clogs:
Property Law 103

Who may redeem?
Section 91:
The general rule is that besides the mortgagor, any person who has an interest in
the mortgaged property can redeem it, more specifically any surety for the
payment of the mortgage-debt or any part thereof
Section 91 and 92: Doctrine of Subrogation
Another person steps into the shoes of the mortgagee. The right of a person who
pays off the debt to acquire the rights of the mortgagee. Also, this subrogation
happens only when the entire debt is paid.
Property Law 104

Session 18: Lease
My Notes and Cases
Associated Hotels v. R.N. Kapoor
Facts:
The scenario is that there is a hotel. A room has been taken here and is
getting used for a purpose unconnected with that of a hotel.
Also the room that has been given to the respondents is not actually a
room but a partitioned cloak room.
The room is being used to provide hairstyle services. The Respondent

was being asked to pay more than standard rent.
Issue: Is the room connected with the purpose of the hotel?
Is the document a license or lease?

Hotel comprises of all amenities including hairstyle services. Any room in

the hotel would satisfy the purpose of a hotel.
It can’t be said that one part of a hotel is related to hotel purposes and
one is not when the service provided is connected with what hotels
usually provide.
The appellants also argued that the Respondent was only a licensee and
not a lease tenant. So they could take back the permission granted to
them to use the rooms.
While the document uses the phrase license/licensee, that is not

sufficient to conclude that the substance of the agreement is that of a
license.
Property Law 105

The respondent was given possession for carrying on his business but he
had to pay the fixed fee irrespective of whether he carried the business or
not.
The document provided exclusive possession to the respondent so it is of

the nature of a lease and not a license. The purpose of a hotel cannot be
used to say that hairstyle is not a part of hotel services, so it is not a
lease.
Conclusion: It is a lease and hence governed by the rent control act of

this case.
Quality Cut Pieces v. Laxmi

Facts:
A departmental store run by Departmental

Services Stores (DSS), was opened with the objective of providing a wide
range of goods under one roof.
Property Law 106

There were traders who sold their goods under DSS. Each trader was to
be provided by the DSS with a stall complete with fittings and furniture.
None of the stalls had a locking arrangement or a wall. Each stall was
made with wooden showcases placed
back to back and waist high counters in the front. While the ownership of
the stalls and furniture was with the DSS, it was only with respect to the
goods displayed that the ownership was in the traders.
There was a single entrance to the store manned by the

security provided by the DSS. The traders were not permitted to change
the character of goods to be sold by them through DSS unilaterally.
The timing of the opening of the market was regulated by the DSS. The
control was so strict, that before the opening of
the gate no one could enter, and as the store was closed for lunch
between 12.00 noon to 3.00 pm.
Issue: Did the traders have a lease or license over the DSS space
provided to them?
The DSS maintains substantial control over the way the traders conduct
their business.
Also, their fee was through the way of commission based on their sales.
The traders could not put their signs or boards as well, nor enter/exit as
per their will.
Also, there is no proper separation between different stalls, this further

indicates that there is no sense of exclusive possession.
For every new trader, a fresh permission was granted.
Conclusion: The facts indicate that there is no exclusive possession,

therefore, it is a license.
Pradeep Oil v. Delhi Municipal Corp

Facts:
Property Law 107

The appellant was given right to erect petroleum building and then
granted exclusive possession.
There was issue of tax where PO argued that he was only a licensee and
not a tenant so should not be taxed.
Issue: Whether the deed was a license or lease? (keep in mind that
exclusive possession by itself does not make it a lease, the intention of
the parties is supreme)
A bundle of rights has been acquired by the appellants, which indicates

that there is a vesting of rights.
They have been permitted to raise huge constructions and

the nature of construction is of wide range. An
administration block along with tanks for storing petroleum
had been constructed. A boundary wall around installations
and administrative block had also been constructed.
Admittedly, the grantee is in exclusive possession over the
lands in question along with construction thereon without
any let or hindrance from the Administration.
Also, there is a term in the deed, that for compelling the appellants to
leave, a notice has to be given. To revoke a license, a notice does not
necessarily have to be given.
Class Notes
What is a Lease?
There is a transfer of right to enjoy a property (the stick that is transferred out of
the bundle)
The duration can be for a term or even in perpetuity. But the person has to pay
periodic consideration.
Lease is both heritable and transferable.
Property Law 108

The lease can be fixed, periodical, or in perpetuity, but there has to be
certainty with the
Difference Between Lease and License:
License is a bare permission. It does not lead to a transfer of interest in the

property. Without the license, the act that is licensed would become unlawful.
A License is neither transferable nor inheritable. A license does not even

transfer the right to enjoy the property. That is still with the original owner.
Session 19: Exchange

My Notes and Cases
Mohammadin v. Asibun Nissa
Facts:
A and B were neighbours having adjacent lands. In survey records, with

respect to their PLOTS, entries were wrongly made, showing X property
belonging to A and Y property as that of B.
A and B, therefore, in order to correct the mistake

in the survey records, executed a document wherein they acknowledged
that a mistake had occurred in the survey records and they clearly stated
in the document that the respective ownership of X was with B and of
property Y, with A.
The issue was whether this deed would be admissible as evidence. It

would be if it is an exchange deed but not so if it is merely an
acknowledgement of possession.
The intention of the parties become relevant here, and the court must
infer this intention from the context/content of the deed.
But the deed is merely a correction of titles and acknowledges what the
parties already possess. Thus, there is no exchange of ownership.
Property Law 109

Also, there is no delivery of possession which is required for
John Thomas v. Joseph Thomas

Facts:
There is an exchange of properties and John also had to make an

additional payment of Rs. 100000 as an equalisation value
The property offered to be exchanged was of inferior nature.
Issue: Whether the agreement is a sale or exchange?
It is a sale because an exchange cannot have money as a consideration.
It can be any movable or immovable property but not money
Subramania v. Saminatha
Facts:
There was an exchange between the two parties
There was a bond issued which provided a stipulation that if there is a

dispute on the property, and the party fails to settle it then they must
make a payment for the land that goes out of their possession.
There was a dispute and the plaintiff was dispossessed of the land as per
the bond. The plaintiff claims remedy under s 199.
Issue: Is the bond a ‘contract to the contrary’ under s 199?
The bond is a contract to the contrary and it extinguishes the right of the
plaintiff to recover the property from which he has been dispossessed.
Property Law 110

Class Notes
In an Exchange, ownership of two things is exchanged mutually, without the
involvement of money. Each party acquires property where they had no interest
before.
The term ‘mutually’ implies that the parties involved must be the same. A
gets a property and gives one to B and vice versa, it can’t be that A gets a
property but gives one to C and then calls it an exchange.
S. 119-
It is based on equitable principles that, if the exchange does not happen then the
victim has two remedies:
Claim compensation for the loss
take back the property the victim transferred
This remedy is also available when the exchange does not go through at all, or
also when the person does not take possession of the property (because this
means that there is no transfer at all).
Property Law 111

Session 20: Gift
My Notes and Cases
Kartari v. Kewal Kishan
Facts:
The property was owned by a 70-year-old widow, W who was

ailing. She had a daughter to whom she was very attached. This daughter
was looking after her mother as well as managing her properties.
When the daughter was away, the distant male collaterals of W

approached her and on the pretext of showing her to a doctor, took the
old lady to a place away from her place of residence and got her
signature on the gift deed already
prepared by them.
Issue: Is the deed ‘voluntary’?
The three steps of Subhash Chandra v. Ganga Prasad apply to show if

there was undue influence.
The defendant was in a position to dominate her will because he was a

male member and had taken her on the pretext of getting her treatment
done.
The defendant has led on the execution of the gift, and the defendant
is the beneficiary too. That in itself is sufficient to establish that there was
an exercise of undue influence.
The lady also did not substantially understood the document and her
mental act did not coincide with her physical act of signing. The lady
Property Law 112

would have wanted to give the property to her daughter who took care of
her, was a widow, and was not affluent.
Conclusion: Therefore, the gift was not voluntary.
Krishna Prasad v. Gopal Prasad

Facts:
A woman aged 90 years executed a gift of her property in favour of B who

was her grandson.
The grandson was tortured by his step-mother and the grandmother was
very fond of him.
The father challenged the validity of the gift deed because he did not
receive anything on grounds of undue influence.
Issue: Is the deed voluntarily executed?

The circumstances around the grandson merit the position that the
grandmother gave the deed out of love.
Even though she was old, she was not infirm. She understood the
consequences of her action. She has been doing her work herself thus,
capable of understanding her actions.
Her action out of her natural desire to help out her grandson who was
tortured by the step-mother.
Conclusion: The deed was voluntary because the donor was capable of
understanding her actions.
Tila Bewa v. Mana Bewa

Facts:
MB gave away the land to TB as a gift. MB had gifted the property to TB

to induce her to stay in her affinal home and look after MB.
MB argued that it was a conditional gift and TB would maintain MB. But
she left the house, went to her natal home after getting widowed.
Issue: Is the gift absolute or conditional?
Property Law 113

Reasoning of the Court
The deed did not contain this clause that based on this condition, MB
could revoke the gift.
The right in the gifted property to claim it back must be expressly

reserved. A direction to maintain beyond the deed can only act as a wish
on the part of MB.
By the deed, the defendant gave the gift to TB unconditionally. It was

included in the later clauses that TB should maintain MB. But this appears
to be a mere wish, because MB is not reserving any right to revoke with
her (there is n explicit mention that in case the condition is not met, then
the gift will be revoked)
Conclusion: There is no condition attached in the deed, it is only a

pious wish.
Class Notes
A gift is a voluntary transfer of a movable or immovable property without
consideration. A gift involves completes divesting of ownership.
Acceptance of gift must be given during the lifetime of the donor. If the
donee dies before acceptance, the gift is void. (principle of transfer inter vivos
applies here)
For immovable gift- registered deed with attestation by two is required

For moveable property- simple delivery also suffices
A gift can only be of a present property and not a future property (basically the
donor should have the property right now and not bank on a future vesting of
right )
Property Law 114

But the gift should be voluntary, this means that it should not be coerced or
executed by undue influence.
Collusive Gifts: Those gifts that are not genuine and are intended to defeat the
right of a third party.
If gift is given to multiple persons, then it is valid for those who accept and
void for those who do not accept. Only one person’s refusal is not sufficient to
hold the gift deed void in its entirety
Conditional Gifts: If a specified event happens then the gift may be revoked, but
this revocation should not be at the mere will of the person. In that case, the gift
would be void to that extent.
Onerous Gift: Gifts with a burden. The burden and benefit has to be accepted in
entirety if the transaction is executed by the same deed
Universal Donee: The beneficiary who receives the entire property of the donor.
The donee, in such a case, is liable for all debts, dues , and liabilities of the donor
with respect to the extent of that property.
Session 21: RERA

My Notes and Cases
Imperial Structures v. Anil Patni
Facts:
AP has booked an apartment from an apartment complex under

construction. AP had paid some sum out of the stipulated amount.
The construction of the apartment never seemed to be in progress.
AP is asking for compensation for the delay caused in the construction

and a refund of money given.
IS argued that AP was offered alternate accommodation and the

construction would be completed in due time. The project was registered
under the RERA. Therefore, the case should be subject to RERA
jurisdiction and authorities and not the consumer court.
Property Law 115

Issue: Does the case fall under CPA or RERA? Was there delay to merit
compensation?
The remedies available under CPA are over and above (basically
additional) to the existing remedies under a special act.
RERA bars proceedings in a civil court. There are authorities to hold that
an authority under CPA is not a civil court. The RERA act does not force a
complainant to withdraw a complaint under CPA and file it under RERA
Authorities.
RERA Authorities provide expert advice and are more qualified to handle
such matters however, other remedies are also available provided they
are not in a civil court (as barred by s 79.)
Conclusion: The RERA Act is in addition to remedies under other laws.
Newtech Promoters v. State of UP

Facts:
The homebuyers who had made their substantial investment from their
hard-earned money under the belief that real estate developers will hand
over possession of their allotted unit in terms of the agreement entered
between them.
But their bonafide belief got shaken when they didn’t get the possession
even several years after the promised deadline. Feeling aggrieved such
inaction, they instituted complaints under various provisions of the RERA
which provide for refund along with interest as well as compensation to
the allottee.
The RERA passed the order against the promoters and hence they have
filed an appeal challenging the constitutionality of RERA.
Issues:
Property Law 116

1. The Court concluded that the Act is applicable retrospectively and

deciding upon the retrospective/prospective application of law is a
well recognized legislative power.
The act is applicable on ongoing projects as well. This is justified in light
of how real estate developers deny possession to allottees. This
retrospective application is protected by the purpose of the act.
Legislative intent to make the Act retrospective is manifest and it is to
protect the interests of homebuyers.
Moreover the act of delaying possession has still continued even beyond
the enactment of RERA
Property Law 117

2. The authority has the requisite jurisdiction.
3. Other issues are not so interesting, the Consti one is noice.
Sushil Ansal v. Ashok Tripathi

Facts:
Class Notes
Property Law 118

Akshat Agarwal Property Law Notes

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Property Law

Session 1: What is Private Property,

Waldron is first exploring why private property is undefinable? One reason is

But this bundle of legal relations is not static.

He argues that private property is a concept for which different conceptions

This is how Waldron defines ownership:

Ownership, as we have seen; expresses the abstract idea ·of

He argues ownership is intrinsic to private prop systems because here

On the other hand, collective property means that the property is to be

Common prop is anyone can use it and for whatever use

Honroe’s idea of Ownership

a concept with various conceptions

Is Ownership equivalent to Market Economy?

Because private persons together form a corporate ownership

Because the corporate itself becomes ‘one’ entity that owns

The initial definitions of property were restricted to land or goods

After this, property came to be classified as movable and immovable. This

Property also came to be associated with individualism.

It also talks about how a title is affected if it is stolen.

Property and ownership is an issue because resource-use matters to people.

Three forms of ownership: private, common, collective.

Difference between common and collective: In collective, the use of property

In private property, ownership is assigned to a particular individual. There may

The idea of ownership and property may be philosophical.

Hume’s theory recognizes that ownership of property emerges with

Justification of Property Ownership

people in general are better off when a given class of

The tragedy of commons:

Under a system of common property, each commoner has

What are the pros of private property? It ensures independence from

Session 1: Class Notes

Transfer of property is important because a property’s intrinsic value may be

An easement is an important concept here. Easement means that I have a right

💡 Property and its principles

Property is not a thing but a bundle of rights.

A bundle of rights to control and determine the use of an object

This is a right in rem

💡 Several property rights may exist in a single object

These rights/interests may or may not conflict.

Interests may be limited or absolute

💡 Systems of Ownership: Private, Collective, Common

Private Property: Decisional authority is with an individual or a group of

Session 2 & 3: Constitutional Aspects of

💡 Facts of the Case

Petitioner asserts that some property was wrongly classified as Coastal

💡 Issue: Whether this classification was ultra vires

The property (Vembanad Lake) is actually ecologically sensitive-

Larger public interest to save the lake.

No illegality in the process adopted to classify. New constructions were

MC Mehta v. Kamal Nath (Doctrine of Public Trust)

💡 Facts and Arguments

This interference with the river may also lead to landslides.

💡 Issue: Can the hotel use such flood-protection measures to the

The court also focused on the commercial nature of the Motel.

Precautionary Principle and Polluter Pays principle recognised.

Bihar v. Maharaja Kameshwar

Jilubhai Nanbhai Khachar v. Gujarat (Eminent Domain)

Also held: Right to Property is not basic structure

💡 Eminent Domain under Section 300A:

The objective is to protect private ownership from state authority.

💡 Meaning of Property under S 300A

The term property is to be interpreted in its context, so the state has to

Property is not so divorced from the social life of the person.