RICHTERLICH ACADEMY

( JUNIOR CIVIL JUDGE, APP, TSAPP. CLAT, TSPGLCET, TS LAWCET, UPSC

LAW OPTIONAL)

TRANSFER OF PROPERTY ACT

WRITTEN BY ROMANA HUSSAIN ( BA.LLB, LLM, PGD)

ONEROUS GIFT

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➢ Section 127 of the Transfer of Property Act, 1882, defines onerous gifts.

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➢ This section regarding onerous gifts is based on the maxim- ‘Qui sentit
commodum, sentire debet et onus‘ which means ‘he who receives

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advantage must bear the burden also.’
➢ The rule is that if a gift is in the form of single transfer to the same person of
several things of which one is burdened by an obligation, and the others not,
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the donee can take nothing by the gift unless he accepts fully.
➢ The principle is that he who accepts the benefit of a transaction must
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also accept the burden of the same.

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➢ But where the gift of several properties is made in the form of two or more
separate or independent transfer, the donee is at full liberty to accept any of
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them and reject the rest.

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Doctrine of Marshalling
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➢ Marshalling means arranging something.

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➢ Section 81 of the transfer of property act says that if the owner of two or more

properties mortgages them to one person and other property mortgages to other
people, the new mortgagee is in the absence of a contract to the contrary,
entitled to have the mortgaged debt satisfied out of the properties not
mortgaged to him, so far as the same will extend, but not to prejudice the rights
 of the prior mortgagee or persons claiming under him or of any other person
who has for consideration acquired an interest in any of the properties.
➢ The right given to the subsequent mortgagee under this section contemplates a

situation where a mortgagor, mortgages more than two or more than two
properties firstly to a mortgagee and after that mortgages some of these
properties to the other person.

For example-

· X mortgages properties A, B and C to Y for securing a loan of 30,000 rupees.

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· After that X mortgages property B to Z for securing another loan of 10,000 rupees.

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In this Y is the first mortgagee on properties A, B and C which are securities for a
loan of 30,000 rupees. And property B mortgages to X for loan 10,000 rupees. Here Y
is the prior mortgaged and Z is the subsequent mortgagee. The right is given to Z
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(subsequent mortgagee) entitles him to say that the loan of rupees 30,000, it should be
satisfied out of sale proceeds of properties A and B only and it is not from C which
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has been mortgaged to him. In the case, A and B could be sold for less than 30,000
rupees, property C must be sold to complete the amount. Although Z is a subsequent
mortgagee and his claim is not before the Y but Z has the right of marshalling or in
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other word he has the right to arranging the securities in his favour.
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Right to Foreclosure
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The right of foreclosure is a right available to a mortgagee to recover his

outstanding money.
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➢ This right is available under Section 67 of the Transfer of Property Act,

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1882.
➢ After the principal amount has become due, and before payment of
mortgage money by mortgagor or before decree of redemption has been
passed by Court, the mortgagee has a right to obtain a decree of foreclosure
from the Court.
 ➢ [A suit to obtain a decree that a mortgagor will be absolutely debarred from
exercising his right to redeem the mortgaged property is called a suit for
foreclosure.

Conditions:

The right to foreclosure can be exercised by mortgagee only when:

● The debt amount has become due for payment.

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● There are no contrary conditions in the mortgage deed as to the time

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fixed for repayment etc.
● Mortgage money has become due but the mortgagor has not got a decree
of redemption of the mortgaged property.
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● Mortgage money has become due but the mortgagor has not paid or
deposited the amount. After the mortgage money has become due, the
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mortgagor can pay off his debt in three ways:
● By tendering or making payment of the mortgage money directly to
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mortgagee
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● By filing a suit for redemption.

● By depositing the amount in court.
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● Mortgagee should not be mortgagee of public works like canal, railway

etc.
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● A trustee or legal representative of a mortgagee cannot file a suit for

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foreclosure but for sale only.

➢ However, when the mortgagor fails to redeem the property, the mortgagee
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does not become the owner of the property, he has to file a suit for recovery
of the amount due.
➢ The limitation period for instituting a suit is 12 years.
 ➢ The final decree in a suit for foreclosure on the failure of the defendant to
pay all amounts due extinguishes the right of redemption which has to be
specifically declared.
➢ A mortgagee may hold two or more mortgages executed by the same
mortgagor. In respect of each of such mortgages, he may have a right to
obtain a decree of foreclosure.
➢ In case he sues to obtain such a decree on any one of the mortgages, he will
be bound to sue on all the mortgages in respect of which the mortgage
money has become due.

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➢ According to section 3 of the Transfer of Property Act, the actionable

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claim is a claim to any debt which is not secured by a mortgage, pledge,
and hypothecation.
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➢ The mortgage of immovable property does not come under section 3 of
Transfer of Property Act and also the pledge OR hypothecation of
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moveable property is not an actionable claim.
➢ An actionable claim is transferable under the Transfer of Property Act.
➢ The transfer of actionable claim is given under chapter eight of the
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Transfer of Property Act.

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➢ Chapter eight of the Transfer of Property Actis the last chapter of the
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Transfer of Property Act and it covers section 130 to 137.

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Actionable Claim
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Under Section 130 of the Transfer of Property Act, the mode of transfer of
actionable claim is described.
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According to Section 130,

· The transfer can be done by only a written instrument;
· And signed by the transferor or his legal agent; and
· The transfer will be complete.
 ➢ Exceptions of the Sec 130-Sec 130 does not apply on the transfer of
marine and insurance of fire policy.
➢ In the case of Simon Thomas vs. State Bank of Travancore, in this
case, there should be an intention to transfer the debt represented by the
written receipts.
➢ Under Section 132 of the Transfer of Property Act, defines the liability
of the transferee of actionable claim. The liabilities and equities of the
transferor are transferred to the transferee.

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➢ Some examples of actionable claim, these following claims are the

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actionable claim-:
1. Claim for arrear rent.
2. Claim for rent to fall due in future.
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3. A choice offered to repurchase the property once again.
4. Book debts or claims
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5. The right to claims maintenance.
6. Claim the benefit of the contract.
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7. Deposit receipt.
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The following claims are not the actionable claim-:

1. A claim which is decreed.
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2. “Right to sue”, it is a right but it is not an actionable claim.

3. The claim for the main profits.
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Transfer To Unborn Person

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➢ Section 13 of the Transfer of Property Act, 1882 provides that when for the
transfer of property, an interest therein is created for the benefit of an unborn
person at the date of the transfer, a prior interest is to be created in respect of
the same transfer and the interest created for the benefit of such person shall
not take effect, unless it extends to the whole of the remaining interest of the
person transferring the property in the property to be transferred.
 Essential Elements of Section 13

The essential elements of section 13 have been discussed below. They are as
follows:

1. No Direct Transfer

A transfer cannot be directly made to an unborn person. Such a transfer can only
be brought into existence by the mechanism of trusts. It is a cardinal principle of

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property law that every property will have an owner.

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2. Prior Interest

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If the circumstances are such that there is no creation of trust, then in that case the
estate must in some other person between the date of transfer and the date when the
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unborn person comes into existence.

3. Absolute Interest
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The entire property must be transferred to the unborn person. The transfer to an
unborn person must be absolute and there should be no further transfer from him to
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any other person.An interest which remains only for the lifetime cannot be
conferred on an unborn person. Under the English law, an unborn person can be
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conferred an estate only for his lifetime.

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Illustration
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“A” owns a property. He transfers it to “B” in trust for him and his intended wife
successively for their lives. After the death of the survivor, it is to be transferred to
the eldest son of the intended marriage for his life, and after his death, it is to be
transferred to A’s second son. The interest so created for the benefit of the eldest
 son does not take effect because it does not extend to the whole of A’s remaining
interest in the property

Kinds of Property
There are various types of properties under the law which are categorised as:

1. Movable Property
Movable property can be moved from one place to another without causing any

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damage. These are the legislations which define movable property.

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● Section 2(9) of the Registration Act, 1908- “Movable property” includes
standing timber, growing crops and grass, fruit upon and juice in trees,
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and property of every other description, except immovable property."
● Section 22 of India Penal Code,1860- “Movable property” are intended
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to include corporeal property of every description, except land and things
attached to the earth or permanently fastened to anything which is
attached to the earth.”
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● Section 3(36) of the General Clause Act,1897- “Movable property”

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shall mean the property of every description, except immovable

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property.”

2. Immovable Property
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Immovable property is one that cannot be moved from one place to another place.
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This is the property which is attached to the earth or ground.

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● Section 2(6) of the Registration act, 1908 states that an “Immovable

property means and includes land, buildings, hereditary allowances,
rights to ways, lights, ferries, fisheries, or any other benefit to arise out of
the land, and things attached to the earth or permanently fastened to
 anything which is attached to the earth, but not standing timber, growing
crops nor grass.”
● This property of a value of more than Rs. 100/- is needed to be registered
for which a registration fee and stamp duty are to be paid.
● This property can be considered an ancestral joint property.

3. Tangible Property
Tangible property has a physical existence and can be touched.

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This type of property can be moved from one place to other, without causing any

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damage, from this, we can say that this property is movable in nature.

Examples: cars or other vehicles, books, timber, electronic devices, furniture, etc.

4. Intangible Property
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Intangible property does not have any physical existence. These are properties with current or
potential value, but no intrinsic value of their own & cannot be touched or felt but holds value.
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Examples include intellectual property like copyright, patent or GI, stock and bond certificates.
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Franchises, securities, software& many more.

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5. Public Property
Public property, as we can easily predict, means the property owned by the State for the Indian
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citizens. It belongs to the public with no claim from an individual. The government or any
assigned community generally manages these properties for public utility.
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A few common examples can be Government hospitals, parks, public toilets, etc.
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6. Private Property

As the name suggests, private property permits a non-government body to own the
property. It is property owned by a juristic person for their personal use or benefit
which can be of any nature tangible or intangible, movable or immovable.
 Common Examples include apartments, securities, trademarks, private wells, etc.

7. Personal Property
The personal property acts like an umbrella which includes all types of property.
Individuals own this kind of property, be it either tangible or intangible.

8. Real Property

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Real property, also called real estate property, includes land and any development

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made on such land. This kind of property is covered in immovable property. But
why is this covered in immovable property? See, for example, roads, mines,
buildings, factory, crops, etc, which is created by development, are all fixed with
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the land. This is immovable property, + any development on it, a further
deliberation of immovable property is a real property.
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Other examples: Building (attached to the earth) using materials like cement, steel,
mines, crops, etc.
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9. Corporeal Property
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Don’t get confused here. Corporeal property is any tangible property that can be
touched and felt. If this is similar to tangible property, then why a separate type of
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corporeal property came into existence? This is a tangible property but it is mainly
the right of ownership in material things of such property. All kinds of tangible
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property can be considered corporeal property. it can be divided into two

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categories: movable and immovable property and personal and real property as it is
ownership rights.
 10. Incorporeal Property
Incorporeal property means all kinds of intangible property. Again, then why was
such a category brought up? This type of property is also called intellectual
property. It is an incorporeal right, meaning having legal rights over things that
cannot be touched or felt.

Doctrine of Election
➢ The doctrine of election is stated in transfer of property act 1882 in section

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35 and within 180-190 of Indian succession act.

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➢ Election means a choice between two alternative or conflicting rights.
Granting two rights in such a way that one is higher than the other, you can
choose either of them.
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➢ You cannot have both. The applicant cannot use both, the recipient must
choose between two inconsistencies or alternative rights.
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➢ Basically it means that the person taking the benefit should also bear the
burden. (C. Beepathuma V. Viduri Shankar Narayana Kadambolithya AIR
1965SC 241).
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➢ It is an important part of the transfer of property act 1882 to resolve property

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conflicts among people.

➢ This principle was derived from the equity principle where a person cannot
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retain all the benefits of a transaction thus, he cannot keep the property and
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still get benefits.

➢ They have to elect for Or against the instrument.
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➢ The doctrine of election is a general legal rule that requires the recipient to
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choose whether the heir wants to own someone else#39;s property and
decide whether to preserve the property or accept his intentions. (Shukla S.
N transfer of property act 24 the edition edited by Dp Ghousal reprint 2007).

Example: A promises to give B, 50 lakh but only on one condition that he will sell
his house to C, now B here has to make the election on what to do? If he takes A’s
 offer he will have to give his house to C. On the other hand if he doesn’t, he won’t
get 50lakh also hence he has to make an election on what to choose. (Ibid)
Maitland’s describes its doctrine of election as (Maitland’s lecture on equity)

● Adopt all the contents of that instrument.

● Accord to all its provisions.
● Cede all rights that are inconsonant.

Election when necessary (section 35)

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● Concede to transfer property on which he has no rights.
● In the same transaction, they must elect either to accept it or not, in case
he doesn’t.
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● He must release the benefits till then.
● The benefits he had till then goes back to the transferor as if not given.
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Although when benefit is transferred back, he must make some good to the
transferee at least it can be done in the following cases:
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● Where the transfer is voluntary and the Transferor had died or had
become incapable of doing a fresh transfer.
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● Transfer is for consideration.

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Example: The farmhouse at Udaipur is a property of C. A by gift means promises

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to give B 1,00,000. He accepts it although C now wants to retain his farmhouse

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and A forfeits his gift. In such a course of action B died, now his representative
must pay C 1,00,000.
 Doctrine of Lis Pendens –
The doctrine of lis pendens is incorporated in the Transfer of Property Act, 1882,
under Section 52.
➢ ‘Lis’ means litigation and ‘pendens’ means pending, literally signifying
pending litigation.
➢ Any action or proceeding which is pending in any court of law is said to be
lis pendens.
➢ The maxim representing this doctrine accurately is pendente lite nihil
innovature, which means that ‘during the pendency of litigation, nothing

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new should be introduced’.
➢ The principle behind this doctrine is that nothing new should be introduced
into a litigation that is pending, i.e. to maintain the status quo, to abstain
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from doing anything which may affect any party to the litigation.
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Following are the essentials of Doctrine of Lis Pendens as described in section
52:
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1. There must be a pendency of a suit or proceeding.

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2. The suit/proceeding must be pending in a court which has the

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jurisdiction to try it.

3. A right to immovable property is either directly or indirectly involved
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in the suit/proceeding.
4. The immovable property in dispute is transferred/dealt with by any
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party to the suit.

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5. Such transfer/dealing affects the rights of the other party(s) involved

in the suit/proceeding.

Transfers of property may either be done by the act of the parties or by operation of
law. Transfers by operation of law are called involuntary transfers. Earlier, there
was some dispute about the applicability of the doctrine of lis pendens to
 involuntary transfers. The matter was settled by the Privy Council in the case of
Nilkant v. Suresh Chander[5], and now the doctrine is applicable to both kinds of
transfers. Further, the Supreme Court, in Samarendra NathSinha v. Krishna
Kumar Nag[6], stated that although section 52 does not strictly apply to
involuntary alienations, for example court sales, but it is well established that the
doctrine of lis pendens applies to such transfers.

Doctrine of Part Performance

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What is the Doctrine of Part Performance under Section 53A?

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➢ The Doctrine of Part Performance is a legal principle recognised in property
law.
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➢ It is a doctrine that allows for the enforcement of an oral or incomplete written
contract to transfer immovable property if certain conditions are satisfied.
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➢ It is based on the principle of equity and aims to prevent injustice and fraud
resulting from non-compliance with formal requirements such as registration.
➢ Under the Doctrine of Part Performance, if a person has taken possession of a
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property and has performed acts in furtherance of a contract for the transfer of
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that property, they may be protected and allowed to enforce their rights to the
property.
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➢ This is applicable even if the contract is not in compliance with the formal
requirements of the law.
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➢ This doctrine serves as an exception to the general rule that contracts for the
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transfer of immovable property must be in writing and registered.

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Illustration:
Consider a scenario where A enters into a contract with B to sell his immovable
property and allows B to take possession of the property even before the formal sale
deed is executed. This contract is considered partially performed.
 However, if A later refuses to fulfil his obligation of executing the proper sale
document and instead files a lawsuit against B, treating B as a trespasser and seeking
eviction, B can oppose A’s claim. B can argue that the contract of transfer in his
favour has already been partially performed and A should not be allowed to backtrack
on his own agreement.

Definition of Mortgage

➢ Section 58(a) of the Transfer of Property Act, 1882 defines the mortgage as “A

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mortgage is the transfer of an interest in specific immovable property for

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the purpose of securing the payment of money advanced by way of loan,
etc.”
➢ Don’t be confused about pledge and Mortgage because both the terms are kind
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of similar.
➢ Only the difference between these is that under the pledge the movable
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property is given as security and immovable property is given as security under
the mortgage.
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Kinds of mortgage
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Simple Mortgage [Section 58(b)]

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Clause (b) of Section 58 reads:

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The basic elements of a simple mortgage are:

1. The mortgagor must have bound himself personally to repay the loan;
2. The possession of the property is not given to the mortgagee; and
3. To secure the loan he has transferred to the mortgage the right to have the
specific immovable property sold in the event of his failure to repay.
 Mortgage by Conditional Sale [Section 58(c)]

Clause (c) of Section 58 reads:

Basic elements of a mortgage by conditional sale are:

1. The mortgagor must ostensibly sell the property to the mortgagee.

2. There must be a condition on such sale that either,
● on the repayment of the debt on a certain date,

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● the sale shall become void or the buyer shall transfer the property to the

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seller, or in default of payment on the agreed date, the sale shall become
absolute.
● The condition must be contained in the same document.
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Usufructuary Mortgage [Section 58(d)]
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Clause (d) of Section 58 reads:

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The basic elements of usufructuary mortgage are:

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1. The mortgagor either delivers possession or expressly or impliedly binds

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himself to deliver possession of the mortgaged property to the mortgagee.

2. The mortgagor authorises the mortgagee till the payment of the mortgage
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money is satisfied:
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● to retain such possession;

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● to receive the rents and profits or any part of such rents and profits
arising from the property; and
● to appropriate such rents and profits in lieu of interest, or payment of the
mortgage money, or partly in payment of the mortgage money.
 English Mortgage [Section 58(e)]

Clause (e) of Section 58 reads:

Basic elements of an English mortgage are:

1. There is a consensus to pay the amount on the due date. The mortgagor
has to repay the mortgage money on the due date.
2. There is an absolute transfer of property to the mortgagee.

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3. Such absolute transfer needs to be subject to a proviso that the mortgagee

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will transfer the property to the mortgagor upon payment of mortgage
money on the agreed date.

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Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]
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Clause (f) of Section 58 reads :

The basic elements of this type of mortgage are:

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1. There must be a debt.

2. There must be a deposit/delivery of the title deeds.
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3. There is an intention that the deeds shall be security for the debt; and
4. Territorial restrictions
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Anomalous Mortgage [Section 58(g)]

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Clause (g) of Section 58 reads:

Anomalous mortgage.—A mortgage that is not a simple mortgage, a mortgage by

conditional sale, a usufructuary mortgage, an English mortgage, or a mortgage by
deposit of title deeds within the meaning of this section is called an anomalous
mortgage.
 Definition of Gift under the TPA
➢ A gift is a transfer of property made voluntarily and without consideration.
It is a transfer of property that is made by the donor to the donee, without
any expectation of receiving something in return.
➢ The Transfer of Property Act has specific provisions relating to gifts of
immovable property.

Section 122 under the TPA

➢ Section 122 of the Transfer of Property Act defines a gift as a voluntary

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transfer of property made without consideration, by one person (the donor)

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to another person (the donee), who accepts the gift.
➢ This section outlines the conditions that must be met for a gift to be valid,
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including the requirement that the donor must be competent to make the gift,
and that the gift must be accepted by the donee.
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➢ Once the gift is made, it becomes irrevocable, except in certain cases where
the donee dies before accepting the gift or the gift is not registered.
➢ The section also notes that gifts can be made by way of a registered gift
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deed or by way of an oral gift, which must be made in the presence of

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witnesses.
➢ The section also emphasises that gifts of immovable property are subject to
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the payment of stamp duty and registration fees.

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Conditions for validity of Gift

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For a gift to be valid under the Act, there are certain conditions that must be
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fulfilled.

● The transfer must be made voluntarily and without any consideration.

● The donor must be competent to make the gift, which means that the donor
must be of sound mind, and must be of the age of majority.
● The gift must be accepted by the donee.
 ● The gift must be accepted by the donee during the lifetime of the donor. If
the donee dies before accepting the gift, it becomes void.
Once the gift is made, it becomes irrevocable. The donor cannot revoke the gift,
and the donee cannot return the gift. However, if the donee dies before accepting
the gift, the gift becomes void. Similarly, if the donee dies after accepting the gift,
but before the gift is registered, the gift becomes void.

Types of gifts

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1. Void gifts- Even though it is named as void ‘gift’ it is in fact not a valid gift. If

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any gift is mane for unlawful purposes (sec 6), if made upon a condition, the
fulfillment of such a condition is either impossible or forbidden by law or;
made by an incompetent person or if the transferee dies before acceptance or if
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the gift is for both existing and future property, the gift is void to the extent of
future property. Thereby, it can rightly be stated that void gifts are an exception
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to clearly understand what all will be included under the concept of gift.
2. Onerous gifts- Section 127 deals with onerous gifts. These are those kinds of
gifts which involves burden or obligation attached to the property. It is based
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on the principle “qui senti commode sentire debetet onus’ which means that the
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person who receives an advantage must bear the burden.7 To constitute an

onerous gift there must be a single transfer of several properties, one of which
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is burdened with certain obligations and others not, then the transferee has to
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abide it to receive all the properties. In simple words, he cannot relieve himself
from the burden and take the rest of the properties.
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3. Lifetime gifts- These are the most common type of gift, where the gift is given
by the donor for lifetime, mostly these are given at certain occasions like
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birthdays etc. For example, Mr. A gifts his son a laptop for his 21^st^ birthday
is a lifetime gift.
4. Deathbed gifts- These are the gifts given by the donor during his lifetime with
the condition that the said gift will be effective only after the donor’s death.
This type of gift is also known as donations.
 For example, if A wants to sell a part of his property to an Orphanage ‘XYZ’
after his death, it is called as deathbed gifts.

Immovable property

➢ Generally speaking, the word immovable property connotes anything that a

person owns which cannot be moved from one position to another.
➢ It can be said that anything which is affixed to land under someone’s
ownership falls under the category of immovable property.

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➢ The immovable properties are entitled to be protected by legal statutes and

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are liable to taxation. Such an immovable property has rights of ownership
attached to it.
➢ The General Clauses Act, 1897 defines immovable property under Section
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3(26), stating that the term shall include land, things affixed to earth or
permanently fastened to anything affixed to earth, and any benefits arising
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out of the land.
➢ On the other hand, Section 3 of the Transfer of Property Act, 1882, does
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not provide an exhaustive definition.

➢ It states that immovable property is not to include standing timber, growing
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crops, or grass.
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➢ None of the above definitions is exhaustive. These definitions just denote

what is to be included or excluded from the purview of immovable property.
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➢ Thus, after clubbing the definitions provided under the two statutes,
immovable property can be defined as permanently affixed to the earth, like
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land, trees and other substances that do not include standing timber, growing
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crops, or grass.
➢ There are further qualifying nuances to the term ‘immovable property’, and
they have been addressed suitably later.
➢ Section 2(6) of the Registration Act, 1908 also provides for the definition
of the term immovable property. As per this Section, lands, buildings,
 hereditary allowances, rights to ways, lights, ferries, fisheries, any profit that
arises out of the land, and any other thing that is attached to the earth, or
something permanently fastened to anything which is in turn attached to the
earth, provided it shall not include standing timber, growing crops, nor grass
falls under the category of immovable property.
➢ Even the definition provided under the Registration Act, 1908, is not
exhaustive; however, it helps to a certain extent to understand the nature and
concept of immovable property.
➢ In the case Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd.

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(2005), the Supreme Court held that the term ‘immovable’ in immovable

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property means permanent or fixed, which cannot be moved and which is
attached permanently to the immovable property.
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Doctrine of Subrogation in India
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➢ The term "subrogation" means to substitute.
➢ Any individual other than the mortgagee or co-mortgagor who has an interest
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in the mortgaged property and redeems the mortgage is entitled to be

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substituted in place of the mortgagee.

➢ In other words, the person who pays off the mortgage debt steps into the shoes
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of the mortgagee (creditor).

➢ This is called subrogation or substitution of that person in place of the
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mortgagee for the purpose of redemption, foreclosure, or sale.

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➢ The doctrine of subrogation under Section 92 had been included in the

Transfer of Property Act by the Amendment Act of 1929.
R

➢ Before this amendment, only the principles of the equitable doctrine of

subrogation existed and were applied in India.
➢ The Calcutta High Court explained the nature and scope of the doctrine of
subrogation in Bisseswar Prasad v. Lala Sarnam Singh (1910), 6 Cal. LJ 134 −
 ➢ “The doctrine of subrogation is a doctrine of equity jurisprudence. It does not
depend upon the privity of contract, express or implied, except in so far as
equity may be supposed to be imported into a transaction and thus raise a
contract by implication. It is founded on the facts and circumstances of each
particular case and on the principles of natural justice.”

Essential Requisites for a Valid Claim for Subrogation

The following are the basic elements of a valid subrogation claim −

y
​ A person claiming the right must have an interest in or charge over the

em
mortgaged property that entitles him to redeem the mortgage.
​ He must redeem the mortgage.
​ A person must have given money to a mortgagor to redeem a mortgage
​
ad
with an agreement in writing that he will be subrogated to the rights of
the mortgagee whose mortgage is discharged.
Ac

Contingent Interest
➢ Section 21 of the Transfer of Property Act, 1882 states about Contingent
h

Interest. It is an interest which is created in favour of a person on fulfilling a

lic

condition of happening of a specified uncertain event.

➢ The person having the contingent interest does not get the possession of the
er

property but receives it upon happening of that event but will not receive the
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property if the event does not happen.

➢ Contingent interest is entirely dependent on the condition imposed on the
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transfer.
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Example- A agrees to transfer the car ‘X’ to B on the condition that he shall secure 80
% in his exams. This condition is uncertain on the happening of the event or not
happening and therefore B here acquires a contingent interest in the car ‘X’. He shall
get the property only if he gets 80 % and when the condition is fulfilled.
In the case of Leake v. Robinson (2)[ii], the court upheld that when a condition
involves an event that is to be given ‘at’ a particular age or ‘upon attaining’ a
 particular age or ‘after’ attaining this particular age, then it can be derived that the
transfer involves a contingent interest.

Characteristics
1. This interest only happens when the condition is fulfilled.
2. Contingent interest is a transferable right, but the condition of heritability depends
upon the nature of such any transfer and the condition.
3. Death of the transferee before getting the possession of the property will result in
the failure of continent interest and the property will remain with the transferor.

y
Doctrine of Spes Successionis.

em
Section 6(A) of the Transfer of Property Act 1882

ad
➢ There is a distinct idea called Doctrine of Spes Successionis.
➢ It states the right of an individual who is an heir currently will receive the
property after the death of the owner.
Ac
➢ This doctrine signifies the possibility that the heir apparent expects to
succeed to property by will or succession.
h

Section 6(A) of the Transfer of Property Act, 1882 defines this concept.
lic

➢ The transferability of property focuses on alienation rei prefertur juri

er

accrescendi.
➢ This maxim states alienation is better than the accumulation of property.
➢ The spes succession signifies the simple succession which exists in
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ancestral property, self-acquired property, wherever the property moves to

the ascendants in case of death of the owner.
ic

➢ But the special feature of this is the time of transfer, in case the owner is
R

alive, one’s heirs only hold the right on the property that in future one will
possess the ownership, but at present one cannot exercise any rights to
transfer the property.

For instance in case C is having a small grocery business. His son D is the only
child of C. D gets an offer from a promoter that if he sells the land and the shop to
him in return he will receive an apartment. D agrees to this and hands over the
 property deeds without the consent of C. C holds no knowledge about this transfer.
This transfer will be void ab initio, as C has the only right to transfer his property.
Here D will only have the right to transfer when the property comes to him, legally
either after the death of his father or before if he receives it as a gift from his father.

Feeding the Grant by Estoppel

➢ The doctrine of equity states that when one person either by his act or
omission, or by declaration, has made another person believe something
to be true or persuaded that person to act upon it, then in no case can he
or his representative deny the truth of that thing later in the suit or in the

y
proceedings.

em
➢ In simple words, estoppel means one cannot contradict, deny or declare to
be false the previous statement which was made by him in the Court.
➢ The law incorporated in S. 43 is based upon common law doctrine of
ad
Estoppel by deed and the equitable by deed and the equitable principle
that if a person promises more than he can perform, then he must fulfil
the promise, when he gets the ability to do so.
Ac
➢ Feeding the grant by Estoppel acts as an exception to the general rule
contained under S. 7 of the Transfer of Property Act, 1882 according to
which unauthorised transfers are void. However, in this case such transfer
h

is considered valid.
lic

Ingredients
er

Fraudulent/ Erroneous Representation By The Transferor

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The transferor transfers with a mala fide intention to deceive the transferee or
under a mistake of his own right.
ic

As the equitable doctrine of estoppel requires a man to make his representation

good, the word fraudulently/erroneously is the foundation of this section. The
R

words imply that the intention can be intentionally false or can even be made
under a mistaken belief of having the authority to transfer. It need not be any
particular form; it can even be by word of mouth or by a document.

Transferree Acted Upon The Representation

 On the erroneous and fraudulent representation made by the transferor, the
transferee believes him and acts upon such representation to complete the
transaction. It is a well settled position that no estoppel can arise where the true
possession is known to the transferee. Section 43 does not apply to gracious
transfer or gifts.

Subsequent Acquisition Of Authority By The Transferor

The transferor may acquire the authority by any legal method, for example, by
gift, purchase, inheritance or even by a will. Further, for the application of
Section 43, the transfer should be otherwise be valid, i.e., the transferor must be

y
competent and the object to the transferor should not be contrary to the public
policy.

em
There Should Be A Subsisting Contract Of Transfer
The option of the transfer can only be exercised in respect of an interest
ad
acquired by the transferee whilst the contract of transfer “still subsists”. If the
transferee (purchaser) had repudiated or cancelled that transaction, or had
Ac
recovered his purchase money, or if the transaction were one of mortgage and
the mortgage money had been repaid, then the relation of the transferor and the
transferee has ceased to exist, and no claim in respect of the property can be
made by the latter
h
lic

Invalid Transfer
43 of the Transfer of Property Act acts as an exception to S. 7 of the Act. S. 7 declares
er

all unauthorised transfers void, however, S. 43 acts as an exception of the same which
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declares the unauthorised transfer under S. 43 valid. However, the transferee cannot
take the help of S. 43 in the following cases:
ic

● If the transaction is against public policy

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● If the transferor is minor

Exchange
➢ SECTION 118 OF TRANSFER OF PROPERTY ACT, 1882 defines as
“when two persons mutually transfer ownership of one thing for the
 ownership of another, neither thing or both things being money only, the
transaction is called an “Exchange”. From above we understand that for
being an “Exchange”;
i. There must be two person transferring ownership of one thing for the ownership
of another;
ii. Neither thing or both things being money only.

➢ We are aware that transfer of any property against consideration is called

“Sale”, and transfer without consideration is called “Gift”.

y
em
➢ Now when a property has been exchanged with another property it is called
“Exchange”.
➢ There may be both immovable or movable property, which can be
transferred through exchange.ad
➢ In some cases where transfer of ownership of a property along with some
Ac
money against some ownership of another property happen, it also comes
under definition of exchange.
➢ Example: Suppose Mr. A is transferring his residential property in Banaras,
h

valued Rs. 20.00 Lakhs against property of Mr. B in Lucknow of Rs. 17.00
lic

Lakhs. Now in this case Mr. B is transferring ownership of his property and
giving cash of Rs. 3.00 Lakhs against ownership of property belong to Mr.
er

A.
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➢ This case also falls under definition of “Exchange”, and not “Sale”.
➢ Note: Oral exchange is not permissible in view of the amendment of
ic

Section 49 of the Registration Act, 1908 brought about by Act No. 21 of

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1929 , which by inserting in Section 49 of the Registration Act, 1908 the

words” or by any provision of the Transfer of Property Act, 1882” , has
made it clear that the documents of which registration is necessary under the
Transfer of Property Act, 1882 but not under the Registration Act, 1908 fall
within scope of Section 49 of the Registration Act, 1949.
 FEATURES OF EXCHANGE;
1. Transfer of ownership; Exchange involves transfer of ownership in some
existing property. In transfer of ownership, absolute interest of the owner is
transferred. A partition of immovable property is not considered as exchange.
2. Property need not be immovable property; In Exchange properties may be
immovable or movable. An immovable property can be transferred against a
movable property and vice versa.
3. Exchange includes “Barter”; Exchange of one immovable property with another

y
immovable property is known as “Barter” and same in case of transfer of one

em
movable property against another moveable property.
4. Mode of Transfer;
ad
i. Section 118 provides that a transfer of property in completion of an exchange can
be made only in a manner prescribed for transfer of such property by “Sale”. The
Ac
formalities of Section 54 (dealing with sale of properties) will be complied with;

LEASE
h

➢ Lease is a transfer of possession.

lic

➢ Section 105 of TPA defines lease. Lease is a transfer of the right of

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enjoyment of an immovable property made for a certain period, in

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consideration of a price paid or promised to be made or money, share of

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crops, service or any other thing of value to be given periodically or on

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specified occasions by the transferee to the transferor.

➢ A lease is not a transfer of ownership of property, but only possession is

given for a certain time.

 ➢ The transferor is called lessor (landlord), and the transferee is called lessee

(tenant).

Essential Elements of Lease

y
em
ad
Ac

1.
h
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Parties The guardian of the minor may grant a lease for a period of 5 years (with

an additional period of 1 year once the child attains majority) (reference made to
er

section 8 of Hindu Minority and Guardianship Act). For more than this, the
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permission of the court is required.

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2. Possession: (only immovable) (only usufruct is transferred)

3. Premium The contract of a lease must be supported with some consideration.

The consideration in a lease may be premium or rent.

 Where the whole amount to be recovered as a consideration from the lessee in

lump-sum (onetime), it is called premium.

When consideration is paid periodically, it is called the rent of the lease. Rent

need not necessarily be in the form of money. It may be services, share, or other

things so rendered.

y
em
4. Period The right of use and enjoyment must be given to the lessee for a certain

period of time. This time is called the term of the lease.

ad
The term may be any period of time, longer, shorter, or even for perpetuity (lasting
Ac
forever). But it must be specified in the deed.
h

Rights of Lessee
lic

1. Right of accretions.
er

2. Right to avoid lease on the destruction of property.

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3. Right to deduct the cost of repair.

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4. Right to deduct outgoings.

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5. Right to remove fixtures.

6. Right to remove crops.

7. Right to assign the interest.

 Duties of Lessee

1. Duty to disclose facts.

2. Duty to pay rent.

3. Duty to maintain the property.

4. Duty to give notice of encroachment.

5. Duty to use the property reasonably.

y
6. Duty not to make a permanent structure.

em
7. Duty to restore possession.

Rights of Lessor
ad
Ac
Section 108 does not provide for any specific right of the lessor but, because the

rights and duties are co-relative, the liabilities of the lessee, which are given under
h

this section, are the rights of lessor.

lic
er

Duties of Lessor

1. Duty to disclose any material defects in the property.

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2. Duty to give possession to the lessee at his request.

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3. To provide by covenant a quiet enjoyment of the property to the lessee.

R

SALE

➢ Sale, in simple terms, is selling a thing in consideration of money.

 ➢ In the Transfer of Property Act, a sale is made of immovable property. It is
defined in section 54 of TPA.
➢ Let us look at the important headings that help you understand what is sale
in the Transfer of Property Act, 1882.

1. Sale is a transfer of ownership from one person to other. One person transfers

his title to another.

y
2. It is transferred in consideration for a price. Here, price means money and not

em
any other valuable thing. Please note that, if in consideration, instead of money, a

thing is given, then it is not sale but exchange.

ad
Ac
3. The price may be paid or promised to be paid on a certain date or part-paid and

part-promised.
h
lic

4. The immovable property must be tangible in nature (which can be sensed or

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touched, virtually visible).

ht

5. If the property for sale is or above the value of a hundred rupees, it can only be
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made through the registered instrument.

R

Important Notes:
 ● If the value of a property is less than a hundred rupees, then the sale can

be made either by delivery or a registered instrument.

● A delivery of immovable property is made when the seller gives the buyer

possession of the property.

What are the Duties of a Seller

If there is no contract to the contrary, a seller is bound to certain duties, which are

y
as follows:

em
1. To communicate to the buyer if there is any defect or fault in the property.
ad
Ac
2. If the buyer requests for the production of documents related to the property,

then the seller must produce them.

h
lic

3. To answer all the reasonable questions which the buyer raises regarding the
er

property.
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4. If the contract for sale is made, it is the seller’s duty to take due care of property
ic

and title deeds until the date of execution of the sale.

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5. The seller must give the right of alienation to the buyer while transferring the

ownership to the buyer.

 What are the Rights of a Seller

With the duties, the seller also possesses certain rights against the buyer, which are

as follows:

1. If the possession is handed over to the buyer, the seller is entitled to rents and

profits till the ownership passes.

y
em
2. If the ownership of the property has been given to the buyer without the full

payment, the seller has a charge upon the property until payment is made.
ad
What are the Duties of a Buyer
Ac
The duties of the buyer are as follows:
h

1. If the buyer is acquainted with any fact which increases the value of the seller’s
lic

interest in the property, then he must disclose it to the seller.

er

For example, the buyer is well-versed with the fact that a highway tender is going
ht

to release in a month. For this, the government will give compensation money
ic

according to circle value to all householders who live nearby to it. If the property is
R

not sold to the buyer, the seller can gain more profit than the actual price. The

buyer should disclose this information to the seller.

2. To make all the payments on time and date specified in the contract.
 3. On the passing of ownership to the buyer, he must bear the expenses of

destruction or loss, if any, occurred to the property, provided that the loss is not

caused by the seller.

4. To pay all public charges like house tax to concerned authorities.

What are the Rights of a Buyer

y
em
The duties of the seller are the rights of the buyer. Rights and duties are correlative.

The rights of the buyer are:

ad
1. Access to all the rights related to the property on the passing of ownership to
Ac
him.
h

2. Access to the liabilities charged on the property unless declined by the buyer
lic

earlier at the time of contract of sale.

er
ht

3. The right of possession and alienation to transfer the same, until payment is
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completely made.
R
 PART C

Property is given to X for life then Y, a bachelor for life and afterwards to all
the children of X, when the last child attains majority. Is the transfer valid

y
em
To determine the validity of the transfer described in your question, it is necessary
to analyze the provisions of the Transfer of Property Act. However, please note
that while I can provide general information, I am not a legal professional, and this
ad
should not be considered as legal advice. It is recommended to consult a qualified
lawyer for a definitive answer.
Ac
Under the Transfer of Property Act, there are various provisions that govern the

transfer of property, including the creation of life estates and future interests.
h

In the scenario you described, the property is given to X for life, followed by Y, a
lic

bachelor for life, and afterward to all the children of X when the last child attains
er

majority. This arrangement seems to involve a life estate followed by a contingent

remainder to the children of X.

ht

In India, Section 19 of the Transfer of Property Act deals with the creation of life
ic

estates, allowing a person to enjoy the property during their lifetime. Section 21 of
R

the Act deals with contingent remainders, which are future interests that depend on

the occurrence of a specific event.

According to these provisions, the transfer you described appears to be valid under

the Transfer of Property Act. X is given a life estate, allowing them to possess and
 enjoy the property during their lifetime. After X's death, Y, a bachelor, is granted a

life estate. Finally, upon Y's death, the property is to be transferred to all the

children of X when the last child reaches majority.

However, it's important to consider that the interpretation and application of the

law can vary based on specific circumstances, regional laws, and legal precedents.

Somu allowed his neighbour Krishna to park his car in his house. After some
time. Somu refused to park the car in his house. Krishna claimed that it is
easement. right decide

y
em
Under the Transfer of Property Act, an easement is a right given to a person to use
another person's property for a specific purpose. To determine if Krishna has an
easement right in this scenario, we need to consider the elements required for the
creation of an easement. ad
​ There must be a dominant and servient tenement: The dominant tenement is
Ac
the property benefiting from the easement, and the servient tenement is the
property burdened by the easement. In this case, Somu's house would be the
servient tenement, and Krishna's car parking would be the dominant
tenement.
h

​ There must be an apparent continuous easement: An easement must be

lic

apparent and continuous, meaning it should be obvious and visible and have
been used consistently over time. If Krishna had been regularly parking his
er

car in Somu's house with Somu's permission for a significant period, it could
establish an apparent continuous easement.
ht

​ The easement must be necessary for the enjoyment of the dominant

tenement: The easement should be necessary for the proper and convenient
enjoyment of the dominant tenement. If Krishna can demonstrate that
ic

parking his car in Somu's house is necessary for him to use his own property
R

effectively, it could support the creation of an easement.

Based on the information provided, it appears that Krishna was allowed by Somu

to park his car in Somu's house for some time. This could potentially establish an

apparent continuous easement, especially if it can be shown that the parking

arrangement was necessary for Krishna's use and enjoyment of his property.
 However, it is important to note that the creation and recognition of easements can

also be influenced by local laws, customs, and any specific agreements or

permissions granted between the parties.

A transferred his property to an unborn person who is in mother's womb.

Decide the rights of unborn person.

According to the provisions of the Transfer of Property Act, the rights of an unborn
person in relation to property transfer are governed by Section 13 of the Act.

y
Section 13 states that a transfer of property to an unborn person is void unless

em
certain conditions are met. The relevant conditions are:

​ ad
The transfer must be for the benefit of the unborn person: The transfer must
be made to a person who is not yet born, but it must be for their benefit. This
means that the transfer must be intended to secure some future interest or
Ac
benefit for the unborn person.
​ The transfer must not violate the rule against perpetuity: The rule against
perpetuity restricts the creation of interests that would not vest within the
prescribed time limit. Under Section 14 of the Transfer of Property Act,
h

such transfers are considered void. Therefore, the transfer to the unborn
lic

person must not violate this rule.

​ The transfer must comply with other legal requirements: In addition to the
er

specific conditions mentioned above, the transfer must also comply with
other legal requirements, such as those related to the form and manner of
ht

transfer, as specified in the Transfer of Property Act or other relevant laws.

It's important to note that while the Transfer of Property Act allows for transfers to
ic

unborn persons under specific circumstances, the Act does not grant legal rights or
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recognition to the unborn person until they are born alive. Once the unborn person

is born alive, they would acquire the same rights and interests in the transferred

property as if they were born at the time of the transfer.

 The Government wants to lease a land situated in a scheduled area lor
commercial purpose. is it valid?

In India, the transfer of land situated in a scheduled area for commercial purposes
is subject to specific provisions and regulations, including those related to tribal or
indigenous communities residing in those areas. The applicability of the Transfer
of Property Act (TP Act) alone may not be sufficient to determine the validity of
such a lease.

In scheduled areas, the governing law is primarily the Fifth Schedule of the

Constitution of India, along with the relevant laws enacted by the respective states.

y
em
The Fifth Schedule provides safeguards for the protection and preservation of the

rights and interests of tribal communities in scheduled areas.

ad
To lease land in a scheduled area for commercial purposes, the government or any

other entity would typically need to comply with the following provisions:
Ac

​ Consent of the tribal community: In most cases, obtaining the consent of the
concerned tribal community or their representative body is a mandatory
h

requirement before any transfer or lease of land in a scheduled area can take
place. The consent process and the specific conditions for obtaining consent
lic

may vary depending on the state and the applicable laws.

​ Compliance with land laws and regulations: The transfer or lease of land in
er

scheduled areas is subject to specific land laws and regulations enacted by

the respective states. These laws may impose additional conditions,
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restrictions, or procedures that need to be followed to ensure the validity of

such a transaction.
ic

​ Compliance with environmental and forest laws: If the land in question falls
within a forest area or is environmentally sensitive, compliance with
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relevant environmental and forest laws and obtaining necessary clearances

may be required.

Given these considerations, it is important to consult with a legal professional who

specializes in land and tribal laws to determine the specific requirements and

procedures that must be followed in the scheduled area where the land is situated.
 .

Property is transferred to "A for life and the remainder to his eldest son on
attaining 18 years of age. "A has no son on the date of transfer. ls the transfer
valid?

According to the provisions of the Transfer of Property Act, a transfer that includes
a remainder interest to an unborn or non-existent person is generally considered
void.

y
em
In the scenario you described, Property1 is transferred to "A for life and the

remainder to his eldest son on attaining 18 years of age," but A does not have a son

at the time of the transfer. Based on this information, the transfer would likely be
ad
considered invalid under the Transfer of Property Act.
Ac
Section 13 of the Act states that a transfer to an unborn person is void unless it

satisfies certain conditions. One of those conditions is that the transfer must be for
h

the benefit of the unborn person. In this case, since A does not have a son at the
lic

time of the transfer, there is no identifiable beneficiary for the remainder interest.

Therefore, the transfer fails to meet the requirement of being for the benefit of the
er

unborn person.
ht

Additionally, it is important to consider the rule against perpetuity, which restricts

ic

the creation of interests that may not vest within the prescribed time limit. The
R

remainder interest in this transfer is contingent upon the existence of A's eldest son

reaching 18 years of age. Since there is no existing son at the time of the transfer, it

raises concerns about whether the interest would vest within the permissible time

frame under the rule against perpetuity.

 "A purchases a property in the name of "B. B" sells the propert to 'C without
"A's authority "A" sues to recover the property irom "C" Decide.

In the situation you described, where A purchases a property in the name of B and

B subsequently sells the property to C without A's authority, the rights and legal

implications would depend on the specific circumstances and the provisions of the

y
Transfer of Property Act.

em
Under normal circumstances, a person can only transfer a property if they have

ad
legal ownership or the authority to do so. In this case, if B sold the property to C

without A's authorization or authority, the transfer may be considered void or

Ac
invalid.

Section 41 of the Transfer of Property Act provides protection to a bona fide

h

purchaser for value without notice. It states that if a person transfers property to
lic

another person, and the transferee pays consideration and acts in good faith without
er

notice of any defect in the transferor's title, the transferee's title will prevail against

the rights of the transferor.

ht

However, in this case, A did not authorize or give authority to B to sell the
ic

property to C. As a result, B's transfer of the property to C could be considered

R

unauthorized and potentially void. This means that A could potentially take legal

action to recover the property from C.

It's important to note that the specific details and circumstances of the case, as well

as any applicable local laws or legal precedents, could influence the outcome.
 "A makes a gift to B,C, and D.B. and C accepted while D refuses What

happens to the gift? according to provision of tp act

According to the provisions of the Transfer of Property Act, a gift requires

acceptance by the recipient to be valid. In the scenario you described, where A

makes a gift to B, C, and D, and only B and C accept while D refuses, the outcome

of the gift would depend on the specific conditions and intentions set forth by A.

y
em
If A's gift is made jointly to B, C, and D without any specific instructions regarding

acceptance, the general rule is that the gift would be deemed invalid due to the

ad
refusal of acceptance by one of the recipients (in this case, D). The acceptance of

all recipients is typically necessary for the completion of the gift.

Ac
However, if A's gift is made separately to each recipient, it is possible that B and C

would retain their respective shares of the gift, while D's share would not
h

materialize due to their refusal to accept.

lic
er

Mr. Ramu allowed his neighbor Mr. Krishna to park his car in his house
.After some time Mr. Ramu refused to park the car in his house. Mr. Krishna
ht

claimed it is easement right. Decide.

ic

Under the Transfer of Property Act, an easement is a right given to a person to use
another person's property for a specific purpose. To determine if Mr. Krishna has
R

an easement right in this scenario, we need to consider the essential elements

required for the creation of an easement.

​ Apparent continuous easement: An easement must be apparent and

continuous, meaning it should be obvious and visible and have been used
consistently over time. If Mr. Krishna had been regularly parking his car in
 Mr. Ramu's house with Mr. Ramu's permission for a significant period, it
could establish an apparent continuous easement.
​ Necessity for enjoyment: The easement must be necessary for the proper
and convenient enjoyment of the dominant tenement, which is Mr. Krishna's
car or his property. If Mr. Krishna can demonstrate that parking his car in
Mr. Ramu's house is necessary for him to use his own property effectively, it
could support the creation of an easement.

However, it is important to note that the recognition and creation of easements can

also be influenced by local laws, customs, and any specific agreements or

y
permissions granted between the parties. The provisions of the Transfer of Property

em
Act primarily govern transfers of property and may not explicitly address all

aspects of easements.

ad
To determine the validity of Mr. Krishna's claim of an easement right, it is

advisable to consult with a legal professional who can review the specific facts and
Ac
circumstances of the case, as well as the relevant laws and regulations in the

applicable jurisdiction. They will be able to provide accurate advice based on the
h

current laws and precedents.

lic
er

"A" a Hindu male owning separate property dies leaving his widow W and his
brother B. B transfers his rights to succeed to the estate of A in Favour of'D'.
ht

Is the transfer valid?

ic

Under Hindu personal law, the concept of succession to a Hindu male's separate
property is primarily governed by the Hindu Succession Act, 1956, and not the
R

Transfer of Property Act.

According to the Hindu Succession Act, the widow (W) and the brother (B) would

be considered Class I heirs to the separate property of A. As such, they have the

right to succeed to the estate of A in accordance with the provisions of the Act.
 However, the Act generally does not permit the transfer of an individual's right to

succeed to the estate of a deceased person. Section 6 of the Hindu Succession Act

states that a right to inherit a property devolves by virtue of the law and not by way

of transfer. Therefore, B transferring his rights to succeed to the estate of A in

favor of 'D' would likely be considered invalid and unenforceable under the Hindu

Succession Act.

It's important to note that specific circumstances, regional laws, and any existing

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legal agreements or documents may also have an impact on the transfer's validity.

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A transfers Rs.5 lakhs to his niece, if she will desert her husband. Is the

transfer. valid? ad
The scenario you described involves a transfer of Rs. 5 lakhs from A to his niece
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with the condition that she deserts her husband. Such a transfer would likely be

considered void and unenforceable under the provisions of the Transfer of Property
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Act.
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Section 23 of the Transfer of Property Act states that any transfer of property that
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is made with a condition that is illegal, immoral, or against public policy is void. In
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this case, the condition imposed on the transfer, which involves deserting one's

husband, would likely be considered against public policy and immoral.

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The law discourages transfers that promote illegal or immoral behavior or actions

that go against the principles of public welfare and morality. The condition to

desert a husband falls within such categories, and therefore the transfer would not

be considered valid.
 It is important to note that the specific circumstances and applicable laws in your

jurisdiction can influence the interpretation and application of the law.

The Government wants to lease a land situated in a scheduled area for

commercial purpose. ls it valid?

The validity of the government leasing land situated in a scheduled area for
commercial purposes would depend on the specific provisions and regulations
applicable to scheduled areas. The Transfer of Property Act (TP Act) alone may

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not be sufficient to determine the validity of such a lease.

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In India, scheduled areas are governed primarily by the Fifth Schedule of the

Constitution of India, along with the relevant laws enacted by the respective states.
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The Fifth Schedule provides safeguards for the protection and preservation of the

rights and interests of tribal communities in scheduled areas.

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Leasing land in a scheduled area for commercial purposes typically involves

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compliance with specific laws and regulations, including those related to the rights
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of tribal communities, land ownership, and the protection of tribal rights and

resources.
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To determine the validity of the government's lease in a scheduled area for

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commercial purposes, it is crucial to consider the following:

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​ Consent of the tribal community: In most cases, obtaining the consent of the
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concerned tribal community or their representative body is a mandatory

requirement before any transfer or lease of land in a scheduled area can take
place. The consent process and the specific conditions for obtaining consent
may vary depending on the state and the applicable laws.
​ Compliance with land laws and regulations: The transfer or lease of land in
scheduled areas is subject to specific land laws and regulations enacted by
the respective states. These laws may impose additional conditions,
 restrictions, or procedures that need to be followed to ensure the validity of
such transactions.
​ Compliance with environmental and forest laws: If the land in question falls
within a forest area or is environmentally sensitive, compliance with
relevant environmental and forest laws and obtaining necessary clearances
may be required.

Given these considerations, it is important to consult with a legal professional who

specializes in land and tribal laws to determine the specific requirements and

procedures that must be followed in the scheduled area where the land is situated.

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"A" makes a gift to X, Y and Z. X and Y accepted while Z refuses, what

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happens to the gift?

Under the Transfer of Property Act, a gift requires acceptance by the recipient to be
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valid. In the scenario you described, where A makes a gift to X, Y, and Z, and only
X and Y accept while Z refuses, the outcome of the gift would depend on the
specific conditions and intentions set forth by A.
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If A's gift is made jointly to X, Y, and Z without any specific instructions regarding

acceptance, the general rule is that the gift would be deemed invalid due to the
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refusal of acceptance by one of the recipients (in this case, Z). The acceptance of
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all recipients is typically necessary for the completion of the gift.

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However, if A's gift is made separately to each recipient, it is possible that X and Y
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would retain their respective shares of the gift, while Z's share would not

materialize due to their refusal to accept.

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It is important to note that the specific details and circumstances of the case, as

well as any applicable local laws or legal precedents, could influence the outcome.

A fled a suit against B for possession of property, X which is the subject

matter of mortgage by conditional sale. Pending the suit, B transferred
property X to C for consideration. Discuss the rights of A.
 In the given scenario, A has filed a suit against B for possession of property X,
which is the subject matter of a mortgage by conditional sale. However, while the
suit is pending, B transfers property X to C for consideration. To understand the
rights of A in this situation, we need to consider the provisions of the Transfer of
Property Act.

​ Mortgage by Conditional Sale: A mortgage by conditional sale is a type of

transaction where the mortgagor (B) ostensibly sells the property to the
mortgagee (A) on the condition that if the mortgage amount is not paid
within a specified time, the sale becomes absolute. Until the sale becomes

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absolute, the mortgagor retains ownership rights.

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​ Pending Suit: If the suit filed by A against B for possession of property X is
still pending, it implies that the court has not yet decided on the ownership
and possession of the property.
​ Transfer of Property by B to C: B transfers property X to C for consideration
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while the suit is pending. This transfer is known as a subsequent transfer.

In this situation, the rights of A will depend on the principle of lis pendens, which
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means that the rights of parties are not affected by any transfer of property that

occurs during the pendency of a suit. According to the Transfer of Property Act,
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Section 52, any transfer made by any party to the suit during the pendency of the
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suit is void against all existing and subsequent rights under the decree or order that
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may be passed in the suit.

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Therefore, the transfer of property X by B to C, while the suit filed by A against B

is pending, would generally be considered void against the rights of A. If A is

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successful in the suit and obtains a decree or order in their favor, their rights to
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possession and ownership of property X will prevail over the subsequent transfer

to C.

It's important to note that the specific details and circumstances of the case, as well

as any local laws or legal precedents, could influence the outcome.

 A makes an absolute gift of a house in favour of B with a condition that B

shall not transfer it. Is the gift Valid? Discuss.

According to the provisions of the Transfer of Property Act, an absolute gift

involves the transfer of property from the donor (A) to the donee (B) without any

conditions or limitations. However, in the scenario you described, A makes an

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absolute gift of a house to B with the condition that B shall not transfer it.

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Under the Transfer of Property Act, a condition that restricts the donee's power to

transfer or dispose of the gifted property is generally considered void. Section 10

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of the Act states that a gift, to be valid, must be without any conditions that impose

an obligation or restriction on the donee's right of enjoyment or alienation.

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Therefore, the condition imposed by A on the gift to B, which prohibits B from

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transferring the house, would likely be considered void and unenforceable. The gift
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itself would still be valid, but the condition restricting B's power to transfer the

property would not be legally binding.

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Once B becomes the owner of the house through the absolute gift, B would
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generally have the right to possess, enjoy, and transfer the property as they deem
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fit, subject to any applicable laws, regulations, or contractual obligations.

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It's important to note that specific circumstances and any applicable local laws or

legal precedents may influence the interpretation and application of the law.
 Plaza Talkies, a theatre, was attached in execution of a decree against the
owner of a theatre. A lease of the same theatre was executed in Favour of the
appellant company during the attachment. Is the lease transfer valid? Discuss.

In the given scenario, Plaza Talkies, a theatre, was attached in execution of a

decree against the owner of the theatre. However, during the attachment, a lease of
the same theatre was executed in favor of the appellant company. To determine the
validity of the lease transfer, we need to consider the provisions of the Transfer of
Property Act.

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​ Attachment of Property: Attachment is a legal process where property is

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seized or secured by a court order in order to satisfy a judgment or decree.
In this case, Plaza Talkies was attached in execution of a decree against the
owner.
​ Lease Execution: During the attachment, a lease of the theatre was executed
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in favor of the appellant company. A lease is a transfer of the right to enjoy
the property for a specific period, typically in exchange for rent or other
considerations.
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According to the Transfer of Property Act, Section 64 specifically addresses leases

created by persons having limited interests in the property. It states that a lease
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created by a person who is not the owner of the property, and whose interest is less
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than a leasehold interest, is not binding on the true owner unless it is made with the
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true owner's consent.

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In this case, since the theatre was attached in execution of a decree against the
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owner, the owner's interest in the property would still exist. The attachment and the
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decree would have an impact on the owner's ability to transfer the property or

create valid leases without the court's permission.

Therefore, unless the lease of the theatre executed in favor of the appellant

company had the consent of the true owner (against whom the decree was

executed), it may not be considered valid and binding on the true owner.
 'A' used to pass from the property of 'X* for reaching the connecting road.
He and other's were using the passage from many years. X obstructed the
passage by constructing the wall. Is 'X* allowed to do so? Discuss.

In the scenario you described, where 'A' and others have been using a passage
through the property of 'X' for reaching the connecting road for many years, and 'X'
obstructs the passage by constructing a wall, the rights and legal implications
would depend on the specific circumstances and the provisions of the Transfer of
Property Act.

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Under the Transfer of Property Act, there are provisions related to easements,

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which are rights that allow a person to use another person's property for a specific

purpose. An easement can arise through express agreement, necessity, or by

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prescription (continuous use over a long period of time).

In this case, if 'A' and others have been using the passage openly and continuously
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for a considerable period of time, it may potentially give rise to a prescriptive

easement. To establish a prescriptive easement, certain requirements must

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generally be met, such as open, uninterrupted, and continuous use for a specified
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period, which varies depending on the jurisdiction.

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If a prescriptive easement is established, 'X' may not have the right to obstruct the
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passage by constructing a wall. However, it is important to note that the laws

governing easements and prescriptive rights can vary depending on the jurisdiction
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and local laws.

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 'A had gven his Land for Lease to B to rurn a schoo! Even after expiry of the
Lease, B had out handed over the Land to 'A advise A,.

According to the provision of the Transfer of Property Act, if B, the lessee, fails to
hand over the land to A, the lessor, even after the lease has expired, A, as the
lessor, may have legal remedies available to reclaim possession of the land.

In this situation, since the lease has expired and B has not returned the land to A, B

is in unlawful possession of the property. A may take legal action to recover

possession of the land from B.

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A can consider the following legal remedies under the Transfer of Property Act and

other applicable laws:

​
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Filing a Suit for Possession: A can file a suit for possession against B,
seeking a court order to regain control and possession of the land. The court
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will consider the terms of the lease, its expiration, and B's refusal to hand
over the property to A.
​ Eviction Proceedings: A can initiate eviction proceedings against B through
a competent court, seeking an eviction order to legally remove B from the
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land.
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​ Claiming Damages: A may also have the right to claim damages from B for
the loss of use of the land during the period when B wrongfully retained
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possession.

It is important for A to consult with a legal professional who specializes in

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property law to understand the specific legal options available in their jurisdiction
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and the steps to be taken to reclaim possession of the land. The legal professional
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will review the lease agreement, the specific circumstances, and advise A on the

appropriate legal actions to be pursued to protect their rights as the lessor.

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