Transfer of Property All Notes

NOTE NO.
1 ll SHRI SAI ll
TRANSFER OF PROPERTY ACT,1882

(© ALL RIGHTS RESERVED – No part of this notes may be reproduced, stored in a
retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior permission
of the Author)
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Q. Define "Immovable Property". Distinguish it from 'Movable Property'.
OR
"Immovable Property includes land and benefits arising out of land" –

Explain.
A INTRODUCTION –
The Transfer of Property Act is one of the most important Act of the Law of
Property. It was passed and enacted in the year 1882 and came into force from
1st July, 1882, which contains 137 Sections and is divided into 8 Chapters. This Act
mainly deals with the transfer of immovable property and also movable
property in certain circumstances but this Act mainly deals with the transfer of
immovable property.
The Transfer of Property Act, 1882 comprises of two parts namely –
1. General Principles (Section 1 to 53A) &
2. Specific Transfers (Section 54 to 137)
In a civilised society, transfer of property from one person to another is

obvious. There are different laws governing the transfer of property i.e.
immovable and movable under different circumstances as mentioned below-
1. When an immovable property is transferred from one living person

to another living person, the law applied is, the Transfer of Property
Act, 1882.
2. When a movable property i.e. goods is transferred from one living

person to another living person, the law applied is the Sale of
Goods Act, 1930.
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3. When property is transferred from dead person to living person/s,
the law applied is the Law of Succession.
Though, the Transfer of Property Act deals with the transfer of both
immovable and movable property but most of the provisions of this Act relate to
immovable property.
The Transfer of Property Act, 1882 does not give complete definition of
'Immovable Property'. Section 3 of the Act defines, "Immovable Property" &
"attached to the earth". Both of them do not give the comprehensive picture of
immovable property. The definition in the Transfer of Property Act, is negative
and not exhaustive.
 DEFINITIONS OF "IMMOVABLE PROPERTY" –
1. Section 3 of Transfer of Property Act, "Immovable Property" does not

include standing timber, growing crops and grass.
The above definition as negatively defined under the T.P. Act. It

merely excludes standing timber, growing crops and grass. It only says
that the three things namely standing timber, growing crops and grass
are not immovable property.
2. Section 3(k)(26) of the General Clauses Act, 1897 defines "Immovable

Property" defines as follows -
"Immovable Property shall include land, benefits arising out of land

and things attached to the earth or permanently fastened to anything
attaché to the earth".
This definition includes three things namely –
1. Land.
2. Benefits arising out of land and
3. Things attached to the earth.
Land does not include only the upper surface of the earth but is extensive
enough to cover things below it FOR EXAMPLE - Minerals. All these are
immovable property. Any right in respect of these or any other interest in it are
all immovable property.
A benefit arising out of land like the right to receive future rent is an
immovable property. The example of benefits is rent from house, shops,
Revenue from agriculture etc. The Right to collect lac, leaves or other things
from forest trees, etc.
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Section 3 of the Transfer of Property Act also defines "things attached to
earth" –
"Things attached to earth" means –
a. things rooted in earth; for e.g. trees, shrubs etc.
b. things imbedded in the earth for e.g. wall and building, minerals etc.
c. things fastened for the permanent beneficial enjoyment of anything

embedded to earth. For e.g. windows, doors etc.
3 The Indian Registration Act, 1908 – Section 2(6) of the Act defines
'Immovable Property' as follows-
"Immovable Property includes land , buildings, hereditary

allowances, rights of ways, lights, ferries, fisheries or any other
benefits arising out of land and things attached to the earth but not
standing timber, growing crops or grass".
This definition is a better than other definitions because it has covered

many items.
In simple words, "Immovable Property" means, 'land, benefits arise out of

land and things attached to the earth or permanently fastened to anything
attached to the earth.
 Whether the 'Trees' comes under the term "Immovable Property" ?
Trees so longs as rooted in the earth, they are immovable property, as

soon as they are cut or removed, they becomes movable property and they are
called as timber. The timber is useful for construction of building and for
making the furniture.
If the timber is used for making furniture it becomes movable property. If

the same timber is used for making of doors, window then it becomes the part
of the building and then it is again called as, "Immovable Property".
 DISTINGUISH BETWEEN IMMOVABLE AND MOVABLE PROPERTY –
1. The movable property can easily be transported from one place to

another, without changing it's shape, capacity, quantity or quality.
The immovable property cannot be easily transported from one place

to another. If transported, it will loose it's original shape, capacity,
quantity and quality.
2. For example- Vehicles, books, furniture etc.

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For example – Land, house, tree attached to the grounds/land, so long
they are so attached.
3. Mango trees if cut and sold for timber purpose are deemed as movable
property.
Mango trees, if sold for nourishment and for fruits they are deemed as
immovable property.
4. The Movable Property need not be registered under the Indian

Registration Act, 1908, it is purely optional.
Whenever the immovable property is transferred, it must be

compulsory to register under the Indian Registration Act, 1908.
5. Mere delivery with intention to transfer the movable property

completes the transfer.
Mere delivery does not sufficient for a valid a transfer. The

property must be registered in the name of transferee.
PLACE FOR YOUR NOTES
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Q. What is mean by "Transfer of Property"? Who can be transferor &
transferee under the Transfer of Property Act and state what are non-
transferable properties/ interest under the Transfer of Property Act,
1882?
OR
Define "Transfer of Property", which Properties/ interest are not

transferable?
OR
"Property of any kind may be transferred" What are the exceptions to this
general rule.
A INTRODUCTION –
The term 'Transfer' means as process or an act by which something is

made over to another. The word 'Property' may be used in the objective sense
of a physical thing which is the subject of ownership or other rights or it may be
used in the sense of the rights and interests of the owner or other person in the
property.
MEANING & DEFINITION OF "TRANSFER OF PROPERTY" –
In simple words, the "Transfer of Property" means "Passing of a right in

the property from one person to another". In one case, there may be passing of
entire bundle of rights from transferor to transferee, but in another case, there
may be transfer of only some of such rights. FOR EXAMPLE - the transfer of
property under the Transfer of Property Act may be the transfer of absolute
interest in the property for e.g. Sale, Gift etc. or the transfer of limited interest
in the property for e.g. Mortgage, Gift etc.
DEFINITION OF "TRANSFER OF PROPERTY" (SECTION 5) –
"Transfer of Property means/ an act/ by which/ a living person/ conveys/

property/ in present or future/ to one or more other living persons/ or to
himself/ or to himself and one or more other living persons/ and to transfer
property to perform such act".
In terms of the transfer of property Act, the concept of 'transfer' is used

with reference to transfer of ownership of immovable property only that means
the movable property that is goods has not been considered here. This is so
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because the transfer of property in goods is called as 'Sale' and it has been
covered by "the Sale of Goods Act, 1930".
Property of any kind may be transferred except as otherwise provided by

Transfer of Property Act. The Transfer of Property Act has also prescribed some
of essentials of valid transfer and in the absence of which the transfer can be
considered as void.
Transfer of Property, in simple sense is a transfer of ownership of the

property along with the clean possession of property under transfer.
The transfer must be from one living person to another living person so it
is not applicable to conveyance from one dead to another living person. In this
section 'living persons' includes a company or association or body of individuals,
whether incorporated or not.
 SOME IMPORTANT POINTS –
1. Section 5 explains about 'Transfer of Property', it also explains about

the Transferor & Transferee. A person who transfers property to
another person, such person is called as 'Transferor'. A person who
transfers property in favour of another person, such another person is
called as 'Transferee'.
2. The transfer must be from one living person to another living person
so it is not applicable to conveyance from one dead to another living
person. In this section 'living persons' includes a company or
association or body of individuals, whether incorporated or not. The
words 'living persons' include a company, association or body of
individuals, but it does not include the God, idol, dead persons etc.
3. The transfer of property is concerned with inter vious that is between

living persons only.
FOR EXAMPLE –
If Pradip gives Ashok, a Flat as gift of property, that is an inter vivos

transfer, because there is present transfer of property between two
living persons namely Pradip and Ashok.
The property bequeathed under a Will cannot be a transfer inter

vivos , because there is no transfer between two living persons because
Will is executed after the death of Testator.
4. The transferor and transferee must be living persons only. There may
be joint transferors, who have joint ownership. There may be joint
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transferee, who purchase the property from a single owner or joint
owners.
 WHAT KINDS OF PROPERTIES MAY BE TRANSFER? (SECTION 6) –
Section 6 explains that which properties may be transfer and which

properties may not be transferred. This section lays down that property of any
kind may be transferred except as otherwise provided by this Act.
In other words, Section 6 of the Transfer of Property Act provides for the
GENERAL RULES that all kinds of property is alienable/ transferable. However,
Certain EXCEPTIONS are provided under Clauses (a) to (i) that means properties
which are contained in Section 6 (a) to (i) of the TP Act are NOT TRANSFERABLE.
Property includes any kind of Immovable nature i.e. lands, houses etc.
certain kinds of properties are not transferred as per Section 6, as follows –
 SECTION 6(a) –
The chance of an heir apparent succeeding to an estate,
The chance of a relation obtaining a legacy on the death of kinsman or
any other mere possibility of a like nature,
cannot be transferred.
The expression 'Spes Succession' means 'mere chance or hope of

succession'. The right of person to inherit to another in future is a mere chance,
which may or may not happen and hence, it cannot be transferred. In other
words, mere hope to get the property of another cannot be transferred.
In other words, during the lifetime of a person, the chance of his heir
succeeding to his property under his will is called, “Spes Successionis” and the
heir who has such chance of succession is called “Spes Successioner”. Such
Expectancy cannot be made the subject matter of a transfer. It is a nullity and
has no effect in law.
FOR EXAMPLES –
1. Ashish, a Hindu, dies leaving a widow Ganga and a brother Dinesh. Here,
Dinesh has only a CHANCE OF SUCCESSION and this Chance of succession
depends on two FACTORS –
i. He has to Survive Ganga – Widow.
ii. The Widow Ganga should leave the property intact.
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2. Jitendra expects that he would be inheriting a property worth Rs. 3 Lakhs
belonging to his Aunt who has no Issues. Since, he has only a mere
Chance of Succession to his Aunt’s Property i.e. Rs. 3 Lakhs, he cannot
transfer it.
 SECTION 6 (b) –
A mere right of re-entry for a breach of a condition subsequent, cannot be

transferred to anyone except the owner of the property affected.
The landlord has the Right of Re-entry on his immovable property when
the Tenant or the Lessee makes Default in payments.
The Right of Re-entry is available only to the Landlord or his Legal

Representatives or Legal Heirs.
This Right cannot be transferred from the estate to which is belongs.
FOR EXAMPLE –
If Bhagyesh lends his house to Pravin for treating his guest, Pravin cannot
transfer that Right to any one otherthan Bhagyesh, the Owner.
In simple words, in a Contract of Lease, the lessor (i.e. landlord) has a right
of re-entry. A mere right of re-entry, cannot be transferred.
 SECTION 6(c) -
An Easement can not be transferred apart from the dominant heritage.
An Easementary Right is the right available to a person to use another

man’s property for the right enjoyment of his property.
The term 'Easement' means "right over the property of another i.e. right
in re aliena".
The Easementary Right is acquired by Agreement, Custom etc. This

Easmen
FOR EXAMPLE –
Dinesh has an easementary right to get the water from the Well of Ashish.
Dinesh cannot transfer this easement right to any third person.
SECTION 6(d) – PERSONALLY RESTRICTED INTEREST –
Certain interests in a property are to be enjoyed by the owner alone and

cannot be transferred to any one.
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A person having right to a property can transfer the same either subject
to a restriction or without restriction. Where property is transferred subject to
restriction the transferee is supposed not to act contrary to the restriction that
it is to be enjoyed by him personally, he shall have no right to transfer such a
property and if he transfers the property in violation of the restriction, the
transfer shall be void under this clause. FOR EXAMPLE - A priest in a temple,
mutawalli or a house is lent to a person for his personal use, he cannot transfer
his right of enjoyment to another.
FOR EXAMPLE –
JAGDISH transfers his house to VAIBHAV for solmnization of marriage of

VAIBHAV's Sister. After the marriage is over VAIBHAV allows RAJ to use the
house for his residence and pay rent for use and occupation of the house to
VAIBHAV. Here transfer of house from VAIBHAV to RAJ is void under this clause
because it was given to him for his personal use i.e. solemnization of his sister's
marriage. The object of the rule is that if it were allowed to be transferred, it
might defeat the very purpose underlying the restriction
SECTION 6(dd) – RIGHT TO FUTURE MAINTENANCE -
A right to future maintenance in whatsoever manner, arising, secured or

determined, cannot be transferred.
A right to future maintenance is solely for the personal benefit of the

person to whom it is granted and hence, cannot be transferred. This clause i.e.
Section 6 (dd) was added by the Amendment Act of 1929. Before the insertion
of this clause in 1929, there was a conflict of opinion whether the right of future
maintenance when it was fixed by decree of the Court of law was transferable.
In simple words, the object of this clause is that the right to maintenance
is purely a personal right and cannot be transferred. The word 'Maintenance'
itself shows the source of livelihood of a poor person such as wife, minor sons
and unmarried daughters and old aged parents.
If this right is allowed to transfer the vary purpose of granting

maintenance is defeated. Therefore, T.P. Act does not permit for transfer of
maintenance.
FOR EXAMPLE –
NANDARANI Vs KRISHNA (1935 ALJ 715) – Madras High Court gave judgement
in favour of Smt. Nandarani holding that future maintenance should not be
transferred.
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SECTION 6 (e) – A MERE RIGHT TO SUE CANNOT BE TRANSFERRED -
'To Sue' means to make a legal claim or to take legal proceedings against
any person. Thus, a right to sue is personal right of the party aggrieved and
there can be no assignment of a right to sue for damages of tort or for a breach
of contract.
FOR EXAMPLE –
PRANAV carries on business of Electronic Appliances. He transfers to

SATISH the right to sue for damages for breach of contract relating to the
business. Here transfer of the right to sue in favour of SATISH is affected by this
clause because the right to sue is intimately connected with the business and is
an important item of its assets. But if PRANAV assigns his business to SATISH,
he will get the right to sue automatically. It is not transfer of a mere right to
sue. Hence, right to sue cannot be transferred.
SECTION 6 (f) – PUBLIC OFFICE –
A Public Office cannot be transferred nor can the salary of the Public
Officer. A Public Office is a position which has a public duty attached to it.
In other words, the Public Offices, Salary of the Public Officer, etc., cannot
be transferred before or after it has become payable.
The object of this section is to protect the property of the Government.

The sale of Public Office or the salary of Public Office is opposed to the public
policy. A Public Office or Salary of Public Officer, cannot be transferred.
SECTION 6(g) – STIPENDS AND PENSIONS –
Stipends and Pensions allowed to Military, Naval, Air-force and Civil

Pensioners of the Government, Political pensioners cannot be transferred.
Pension means a periodical allowance or stipends granted not in respect of any
right to office but on account of past services on particular merit. Similarly,
scholarship, medals, rewards etc. cannot be transferred.
SECTION 6(h) – UNLAWFUL TRANSFERS –
Unlawful transfers provides 'No transfer can be made –
1. in so far as it is opposed to the nature of interest affected

thereby or
2. for an unlawful object or consideration within the meaning of

section 23 of the Indian Contract Act, 1872 or
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3. to a person legally disqualified to be a transferee.
Transfer cannot be made -
1. in so far as it is opposed to the nature of interest affected thereby

things dedicated to the public or religious purpose , cannot be transfer
because such transfer is opposed to the nature of interest.
2. for an unlawful object or consideration within the meaning of Section

23 of the Indian Contract Act, 1872.
SECTION 23 – What consideration & object are unlawful –
a. forbidden by law;
b. defeat any provision of any law;
c. is fraudulent;
d. if involves injury to person or property of another;
e. opposed to the public policy.
3. to a person legally disqualified to be a transferee.
For example – Minor, Person of unsound mind, insolvent et
SECTION 6(i) – CERTAIN OTHER OCCASSIONS –
It explains certain other occasions in which transfers are not permitted.

They are-
1. a tenant, having untransferable right to occupancy, cannot be transfer

his right to tenancy.
2. a farmer of an estate in respect of which default has been made in

paying revenue, is not permitted to transfer the estate.
3. a lessee of an estate, is not allowed to transfer his interest.
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NOTE NO.2 II SHRI SAI II

of the Author)
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Q. Explain requisites of Valid Transfer.
A VALID TRANSFER -
According to Section 7 of the Transfer of Property Act following are the

essentials of valid transfer -
1. PROPERTY MUST BE IN EXISTENCE-
Transfer of Property means transfer of ownership and delivery of property

belonging to the person. The property which is being transferred must be
physically in existence. Same in the case of person transferring and the person
in whose name the property is being transferred etc. all the persons i.e.
transferor and transferee should be in existence (i.e. living persons only i.e.
inter vivos).
2. IDENTITY OF PERSON –
One person cannot transfer his own property in his own favour. The
person transferring and the person beneficiary should not be identical.
3. CAPABILITY OF TRANSFER –
The property which is to be transferred must be capable of being

transferred –
i. The property should be without any encumbrances.
ii. It should be actually belonging to the person who transfers it.
iii. The property should be capable of giving the possession in

any types.
Thus, with all the above qualifications, the property must be capable of
being transferred in favour of another person.
In other words, transferor must have title and interest in the property
which he wants to transfer or convey.
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FOR EXAMPLE –
A tenant cannot make a Sale or Gift of the house as he is not an owner.
4. COMPETANCY OF THE PERSON –
Transferor must be competent to contract. The person involved in

transfer must be competent to transfer the property. The person is competent
to transfer the property who is the true owner of the property and who is legally
major and competent to enter into agreement. Minor, person of unsound mind,
insolvent etc. person are not competent to make a valid transfer. All these
qualifications i.e. major, sound mind etc. are needed from both transferor and
transferee. But there are some Exceptions to the transferee.
5. THE PROPERTY MUST BE TRANSFERABLE –
According to Section 7, properties are to be conveyed, must be

transferable properties i. means there must not be any kind of prohibition on its
transfer.
In other words, the transfer of property must not be prohibited as per

mentioned u/s 6 of this Act. If the property is non-transferable and if it is
transferred then such transfer is void.
6. LEGAL FORMALITIES OF TRANSFER –
All the lawful formalities must be carried out at the time of transfer. In
the absence of these legal formalities the transfer may be void.
These formalities are-
i. Actual giving the ownership of property and
ii. Delivery/possession of the property.
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Q. Write a short note on - "OPERATION OF LAW/ TRANSFER"
A. DEFINITION OF "OPERATION OF LAW/ TRANSFER" (Section 8) –
"Transfer of property/ passes/ to the transferee/ all the interest/ which/

the transferor/ is then capable of passing/ in the proper & in the legal incidents/
thereof".
In other words, all the Interests in the property which the transferor is
capable of passing, passes to the transferee.
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Such INCIDENTS includes from-
1. When the property is LAND -
i. the EASEMENT annexed thereto;
ii. the RENTS & PROFITS which accrue after the transfer; &
iii. all THINGS attached to the Earth (i.e. Land).
2. Where the property is MACHINERY attached to the earth-
the MOVABLE PARTS thereof (i.e. Machinery) also passes to the

transferee.
3. Where the property is HOUSE, the transferee gets -
i. The EASEMENT annexed thereto i.e. House;
ii. The RENTS & PROFITS thereof accruing after the transfer; &
iii. The LOCKS, KEYS, BARS, DOORS, WINDOWS etc.
iv. All other THINGS provided for permanent use in the House.
4. & where the property is DEBTS then–
the SECURITIES there of are passed to the transferee, but not

ARREARS OF INTEREST accrued BEFORE the transfer.
5. & where the property is MONEY or other PROPERTY YEILDING INCOME

-
the INCOME thereof accruing after the transfer passes on to the

transferee
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Q. Write a short note on - “MODE OF TRANSFER” - "Oral Transfer"
A “MODE OF TRANSFER (GENERAL) – (SECTION 9) -
To constitute a Valid Transfer, it is essential that the property must be

transferred in the MANNER and FORM, if any, required by the Transfer of
Property Act, 1882.
 DEFINITION OF "ORAL TRANSFER" (SECTION 9) –
"A transfer of property/ may be made/ without writing/ in every case/ in

which/ a writing/ is not expressly/ required by Law".
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In other words, transfer of property may be affected under the Act both
orally as well as in writing.
There are many Instances where Courts have recognized ORAL TRANSFERS
such as Release, Relinquishment, Surrender, Compromise, Partition, Transfer of
Easementary Rights, Settling Maintenance Claims, Donation and Family
Settlements etc.
In Partition Cases, Partition of Property can be made WITHOUT WRITING

on General Principles of Law.
SOME IMPORTANT POINTS –
1. The transaction in terms of T.P. Act may be WRITING or ORAL.
2. The transaction of immovable property Costing more than Rs. 100/-

should be in Writing.
The transaction like Sale, Mortgage, Lease, Gift etc. are necessarily in
writing. The Sale of immovable property more than Rs. 100/- must be in
Writing and Registered at the proper office of Sub-Registrar, in order to change
the ownership over the property after Sale is over.
Registration creates the establishment of ownership of the Purchaser and

hence, for that purpose, such transaction must be in Writing and Registered.
 NO ORAL TRANSFER – (WRITING IS COMPULSORY) -
i. Sale of immovable property of the value of Rs. 100/- and upwards

(Section 54).
ii. All Mortgages Securing Rs. 100/- and upwards (Section 59).
iii. Leases of immovable property from year to year or for a term

exceeding One Year (Section 107).
iv. Exchange of immovable property of a value more than Rs.100/-

(Section 108)
v. Gift of Immovable Property (Section 123) i. means Gift of Movable

Property may be Oral.
All the transaction mentioned above are supposed to be Writing

transaction which not be Oral.
Though, transactions are not in writing and are not registered but they
have protection of law.
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In simple words, the transaction in which writing and registration of
documents are not necessary as per T.P.Act, such transfer just called as, "Oral
Transfer".
The Oral Nature of such transaction has been presumed by the T.P. Act
itself and hence, though they are oral, the person can have remedy in the Court
of Law for any loss out of the said oral transaction of property.
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Q. “Restriction on Alienation of Property”.
A. INTRODUCTION –
Section 10, 11, 12, 17 & 18 give the Instances of Illegal Restrictions on
certain transfers. Such Restrictions are deemed to be Absolute Restraints, totally
depriving the owner of the property of its free enjoyment.
The following are the FOUR types of Illegal Restrictions which are not Valid –
1. Conditions restraining alienation ( Section 10) – (Restriction on transfer).
2. Restrictions on free enjoyment of property (Section 11).
3. Conditions making interest determinable on insolvency or attempted

alienation (Section 12).
4. Direction for accumulation of Income or Doctrine of accumulation

(Section 17 & 18).
1. CONDITIONS RESTRAINING ALIENATION OR RULE AGAINST

INALIENABILITY (SECTION 10) –
If property is transferred subject to Condition or Limitation of Absolutely

Restraining the transferee, or any person claiming under him (i.e. transferee)
from parting with or disposing of his interest in the property, then such
Condition or Limitation is VOID.
The OBJECT of this Section, is to Prevent any person from keeping a

property to its total destruction. In other words, the Donee or Transferee of the
property should have the freedom to deal with the property in the same way as
his Ex-Owners, i.e. Donor or Transferor.
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FOR EXAMPLES –
1. Aditya transfers his property to Subhash with the CONDITION that

Subhash never sell it. This Condition is VOID and Subhash may or may not
Sell as he pleases.
2. Ratan transferred an Agriculture Land to Pritam with a CONDITION that if

Pritam sold it, he must Sell it to Ganesh and to Nobody else. The
Condition was held to be void.
The Right of Transfer of property is an Incidental and Inseparable Right for

the beneficial ownership of property. If such right of transfer is Restricted
completely, then such restrictions are VOID, but the transfer is VALID.
 EXCEPTIONS TO THE ABOVE RULE –
There are TWO EXCEPTIONS to the above Rule where such Absolute
Restrictions are Valid –
i. In the case of Lease, for the benefit of Lessor or his legal heirs,
Absolute Restrictions can be imposed on the Lessee, at the time of
transfer of property.
FOR EXAMPLE -
the Right to re-entry by the lessor, restrictions on Sub-lease,

alienation, etc.
ii. If the transfer is made for the benefit of a Woman, Conditions

Restraining its transfer can be imposed during her coverture i.
means Married Woman’s Protection under her husband.
Here, the Woman must not be a Hindu, Mohammedan, but

can be a Christian. The Restriction operates only during her
coverture. When the husband dies, she becomes a “Female Sole”
and she can alienate the property as per her Will and Wish.
 TYPES OF RESTRICTIONS –
Restrictions on transfer are divided into Two –
a. Absolute Restriction.
b. Partial Restriction.
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2. RESTRICTION ON FREE ENJOYMENT OF THE PROPERTY (SECTION 11) –
When a property is Absolutely transferred, then any Condition imposed by

the transferor to Restrict the Free Enjoyment of the property by the transferee, is
VOID. Such a Condition is against the interest created and the transfer deemed
to have been made as if there were no such Condition.
FOR EXAMPLE –
Dhananjay transfers his land to Shrikant Absolutely and put Restriciton

not to dig a Well or Construct a Farm House on land etc., then such Restrictions
are VOID, because the transfer is Absolute and Shrikant is an Absolute Owner.
When a man makes an absolute transfer, he cannot impose upon his

transferee any Conditions restraining his Enjoyment or Disposition of property.
In other words, a full Ownership confers upon the owner complete liberty
of action with regard to its Enjoyment, Disposition and Management.
 EXCEPTIONS TO SECTION 11 –
1. When a Part of Immovable Property is transferred, a Condition may be

imposed restricting the free enjoyment of the property transferred by the
transferor.
FOR EXAMPLE –
Gitesh makes a transfer of a part of his house to Mahendra and

directs that Mahendra should use the house only for Residential Purposes
and not for conducting Business or any other purpose other than
Residence. Here, the Condition is VALID, even though the transfer is
Absolute.
2. if the Restrictions are for the benefit of his adjoining land, such
Restrictions are Valid.
FOR EXAMPLE –
Hitesh has two properties ‘M’ and ‘N’. Hitesh sells ‘M’ property to
Indrajit with a CONDITION that Indrajit should keep a portion of the
property ‘M’ without any construction for the beneficial enjoyment of the
property ‘N’. Such Restriction is Valid and Enforceable.
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3. CONDITIONS MAKING INTEREST DETERMINABLE ON INSOLVENCY OR
ATTEMPETED ALIENATION (SECTION 12) –
If a property is transferred subject to a Condition or Limitation making

interest in the property determinable on the transferee becomes Insolvent, then
such Condition is VOID and the transfer is VALID.
FOR EXAMPLE –
Jayesh transfers a property to Kalpit on Condition that Kalpit’s interest in

the property is determinable if Kalpit becomes Insolvent, this Condition is VOID.
4. DOCTRINE OF ACCUMULATION (SECTION 17 & 18) -
If terms of a transfer of property directs that the Income arising from the
property must be accumulated fully or partly either for a period exceeding the
life of the transferor or for a period of 18 years from the Date of transfer, then
such Condition is Void.
A Direction for accumulation of Income is a mode of restraining the

enjoyment of property. This Section allow accumulation of income during
either of the two following periods only –
i. The life of the transferor or
ii. A period of 18 years from the date of transfer (whichever is longer).
FOR EXAMPLE –
Lalit transfers a property to Mohit in 1970, with a direction that the

income arising from the property must be accumulated till 2000 (i.e. for a period
of 30years). However, the transferor Lalit dies in 1990.
The Period during which the transferor is alive is more than 18 years from
the date of the transfer, but as per above Rule, accumulation is allowed till the
longer of the above two periods and hence, the direction of accumulation till
2000 is valid.
If, however, the transferor dies in 1985, then the longer period would be
18 years and as such, the direction would be valid till 1988.
8
tNOTE NO. 3

of the Author)
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Q. Explain the Principles governing “Transfer to Unborn Persons”.
OR
Discuss the Rules relating to transfer of property in favour of Unborn

Persons.
A INTRODUCTION –
According to Section 13 of the Transfer of Property Act, 19\882, if on

transfer of property, an interest therein is created for the benefit of the Unborn
Person not in existence at the date of transfer (i.e. unborn person), then there
should be a prior interest created to some living person by the same transfer
and after the first transferee’s death, the whole of the remaining interest should
be created for the benefit of such unborn person.
Otherwise, such interest created for the benefit of the unborn person shall
not take effect.
FOR EXAMPLE –
Akhil (transferor) transfers property to his first Son Siddhesh and his
intended wife, for their lives and after the death of the survivor to their unborn
Son for life and after his (unborn son’s) death, Akhil’s (transferor’s) second Son
Ritesh. Now, the first transfer to Siddhesh and Siddhesh’s intended wife is Valid
and lawful as they are living persons.
After their life time, the transfer to Siddhesh’s unborn son is not valid
because the property is not transferred absolutely, i.e., only life interest is
created as after his death, property will go to Akhil’s Second Son. In other
words, the whole of interest of Akhil is not created in favour of Siddhesh’s
unborn Son.
Sai Law Academy TRANSFER OF PROPERTY ACT,1882
1
 RULES REGARDING TRANSFER FOR THE BENEFIT OF UNBORN PERSONS –
Section 13 gives rise to the following RULES –
1. NO DIRECT TRANSFER –
There cannot be a direct transfer of property to an UNBORN PERSON.

Property should never be in abeyance (state of suspension) i.e. No property can
remain without a Owner.
Thus, if a property is transferred directly to an unborn person, there would

be an abeyance of ownership between the date of transfer till the birth of the
unborn person.
2. PRIOR INTEREST TO A LIVING PERSON/S –
If an interest is to be created in favour of an unborn person, there should be a

transfer to some living person/s till the unborn person comes into physical
existence.
In other words, there should be a transfer in favour of a living person.
3. TRANSFER OF ABSOLUTE INTEREST IN FAVOUR OF UNBORN PERSON –
After that, the whole of interest (absolute interest) must be created in favour
of the unborn person. If only limited interest or life interest is created in favour
of the unborn person, then such transfer is void and it does not take effect at all.
Thus, the transfer up to the living person/s is valid and after that, it becomes
void. In such an event, the ownership remains only with the transferor, as he
has transferred the property to the living person/s only for life.
FOR EXAMPLE –
Raman made a GIFT of his properties to Ketan as life interest and then to
Ketan’s Son absolutely, but if she does not have any Son, then to Ketan’s
Daughter and if there is not Descendant, then to Ketan’s Nephew. Ketan dies
without having any Issue.
It was held that Gift in favour of unborn Son or Daughter was invalid u/s
13 because the gift was of a limited interest upon Ketan (life interest).
The Gift in favour of Ketan’s Nephew also is not valid u/s 16 of the
Transfer of Property Act, 1882, because in a transfer of property , if the prior
interest fails, then the subsequent interest also fails.
4. Since transfer to an unborn person cannot be directly made, there should

necessarily be a Creation of Trust for the purpose of effective transfer to
unborn person (Section 13 therefore uses the words “for the benefit of”.
2
 MOHAMMEDAN LAW REGARDING TRANSFER TO UNBORN PERSON/S –
A Gift to a person not in existence i.e. unborn person on the date of transfer
is VOID under Mohammedan Law, except in the case of a Wakf. So, Section 13 is
not applicable to Gifts to Mohammedan Unborn Person/s.
 HINDU LAW REGARDING TRANSEFER OF UNBORN PERSON –
Before passing the Hindu Disposition of Property Act, 1916, a transfer in

favour of a person not in existence i.e. unborn person on the date of transfer
was held to be VOID.
But after the passing of the Hindu Disposition of Property Act, 1916, Section
13 is applicable to Hindus, and so now a Hindu can transfer property in favour of
any unborn person subjected to Rules in Section 13 and 14.
 PROPERTY SHOULD NEVER BE IN ABEYANCE –
There cannot be a property without an Owner.
In other words, property cannot be in abeyance. So, in the case of property

transferred to an unborn person, it can take cannot take effect immediately as
the transferee is not born.
So, it necessitates creation of some prior interest in favour of some living

person or to a trust, and then transfer to the unborn person so that the
continuity is maintained.
Even such creation of trust, etc, should not prolong for a period of more
than the unborn person attaining majority (Section 14).
-------------------------------------------------------------------------------------------------------------
Q. Explain the Rule against Perpetuities.
A INTRODUCTION –
The Rule against Perpetuity explains in Section 14,15,16,17 and 18 of the

Transfer of Property Act, 1882.
The word 'Perpetuity' means, "tying up property for an indefinite period

or forever".
In other words, Perpetuity means continuity of transfer of some property.
Perpetuity means continuous transfer of same property for a pretty long

time/ period.
3
“Perpetuity” means Permanency or Infinity (Indefinite Period). The Old
Law of transfer of property was that the property should be detained for a
permanent period from free enjoyment and absolute ownership.
The above Rule was abolished both in English Law and Indian Law i.e. by
Section 14 of the Transfer of Property Act, 1882 and as such, a property cannot
be detained for an infinite period. The RULE is known as “Rule against
Perpetuity”.
FOR EXAMPLE –
Vishal transfers a piece of land to his friend Mohit for life and afterwards
to his friend Viky for life and then to Viky’s unborn Son and then to Unborn Son
of Viky’ Son and so on. This is called “Perpetuity Transfer” (Transfer for an
indefinite period).
If such perpetuity is allowed, then free circulation of the property will be

curtailed and many disputes may arise. So, the Rule against perpetuity has
necessarily to be established.
 ENGLISH LAW OF “RULE AGAINST PERPETUITY” –
 OLD ENGLISH RULE OF PERPETUITY (RULE OF DOUBLE POSSIBILITIES) –
In the earlier days, the Doctrine of Perpetuity was known as “Double

Possibilities”.
FOR EXAMPLE –
Prasad gave his property to Vivek at his Marriage. Prasad directs that Vivek
shall enjoy the property for life and after Vivek’s death, to Vivek’s unborn son
and after that to Vivek’s Son’s Son. Here, there are two Uncertain Events –
a. Vivek should get a Son.
b. Vivek’s Son should also get a Son.
 MODERN ENGLISH RULE OF PERPETUITY –
According to the Modern English Rule of Perpetuity, a property cannot be

tied up longer than for a life or lives in being and 21 years thereafter. This is
called “Rule against Perpetuities”.
4
 INDIAN LAW OF “RULE AGAISNT PERPETUITY” (SETION 14) –
"Transfer of property/ cannot operate/ to create an interest/ which is/ to

take effect/ after/ the lifetime of/ one or more persons/ living on the date of
transfer/ & minority/ of some person/ who shall be in existence/ at the
expiration/ of that period/ & to whom,/ he attains full age, the interest is to
belong".
 ESSENTIALS OF “RULE AGAINST PERPETUITY” –
The following are ESSENTIALS for Rule against Perpetuity –
1. The Vesting of Interest cannot be postponed beyond the life time of any
one or more persons living at the date of transfer.
FOR EXAMPLE –
The Property is given to a living person Vishram for life, then to a

living person Rahul for life and then to the unborn son of Rahul. The son
of Rahul must have been born or before the date of the expiry of the life
estate in favour of Rahul.
2. Vesting of Absolute Interest in favour of an Unborn Person may be

postponed until he attains the Age of 18. Property can be transferred first
to one or more living persons on the date of transfer and secondly up to
the minority of some person i.e., 18 years in India.
3. Prior interest in favour of which is limited i. means he cannot have power

to transfer/ alienate the property.
4. Ultimate beneficiary must come into existence before the death of last
living person. If the next person not comes in existence then that is rule
against perpetuity.
 ILLUSTRATIONS –
1. Sagar, a owner of a property, transfers it to a living person Umesh for life,

and after Umesh’s Death to Uday, a living person for life, and before
Uday’s death to his (Uday) unborn Son when he attains the Age of 18.
This transfer complies with the Section 14 – Rule against Perpetuity.
In the above illustration, suppose Umesh remains alive for 20 years,

Uday for 20 years, and the Uday’s unborn son comes into existence just
before the death of Uday, then the Uday’s unborn Son would not get the
property until he attains the Age of 18. This means that the property
would remain tied up for 18 years and after that vest with Uday’s Son on
attaining the age of 18 years.
5
2. Vinayak transfers his property to Atharva for life and after Atharva’s
death to Yogesh for life and after death of Yogesh to the eldest Son of
Yogesh at the Age of 25. Here, the Rule against Perpetuity is VIOLATED,
because it exceeds the Minority Period namely 18 years.
 EXCEPTIONS TO THE RULE AGAINST PERPETUITY –
There are following EXCEPTIONS –
1. The Rule against Perpetuities is not applicable to the Vested Interest.
2. The Rule against perpetuity is not applicable to a case where a property is

transferred for the benefit of the Public.
In other words, the rule does not apply in case of transfer for the
benefit of the public i.e. advancement of religion, knowledge, commerce,
health and safety.
Gifts to charitable are also not subject to rules against perpetuity.

Such gifts are supposed to the bonafide and hence, they are exempted
from the application for the rule against perpetuity.
3. Renewal of Leasehold properties i.means there are certain property which

are held on basis of lease for a period which is up to even 99 years or
more. Such period are subject to renewal as per law. Renewals are
permissible.
 TRANSFER TO TAKE EFFECT ON FAILURE OF PRIOR INTEREST (SECTION 16)

-
Whether by any Rule contained in Section 13 and 14, an Interest created for
benefit of a person or a Class of persons fail in regard to such person or the
whole of such class, any interest also fails if prior interest fails.
FOR EXAMPLE –
Vinod settles a Property for Aniket and his intended wife successively for
their lives and then on their eldest Son for life and then on the eldest Son of
such eldest Son for his life and then to Manoj.
The prior interest of the Son and Grandson of Aniket fails under Section
13 and 14 and therefore, the subsequent interest of Manoj also fails.
6
Q. Define “Vested Interest” and “Contingent Interest”.
A VESTED INTEREST (SECTION 19) -
* DEFINITION AND EXPLANATION -
If, on the transfer of property, an interest therein is created in favour of a

person.
1. Without specifying the time when it is to take effect.
FOR EXAMPLE -
Prakash sells his property to Arvind. Arvind gets Vested Interest

from the day of Sale, though possession may not be given to him
immediately.
2. Specifying that it is to take effect forthwith or on the happening of an

event which must certainly happen.
FOR EXAMPLE -
Santosh agrees to transfer property to Akash if Santosh dies at

Sunset or Sunrise. Thus, the event should be specified and certain.
In the case of Vested Interest, it is not affected by the death of the

transferee before he obtains possession.
 CHARACTERISTICS OF VESTED INTEREST -
1. It creates a Present and Immediate Right.
2. Possession of Enjoyment is Postponed to a future date.
3. The death of the transferee before obtaining possession does not affect
the vested interest and so the interest vests in his representatives.
4. It is transferable and also heritable.
5. An unborn person acquires vested interest only on his birth. He may not
get immediate enjoyment.
6. In a transfer of property to a Class of Persons, an interest is created only to

those persons who have attained a particular age. This type of creation of
interest is vested.
7
 CONTINGENT INTEREST (SECTION 21) –
 DEFINITION AND EXPLANATION –
If on a transfer of property, an interest therein is created in favour a

person -
1. to take effect only on the happening of a Specified Uncertain Event, or
2. to take place, only on the non-happening of a Specified Uncertain Event.
Such a person acquires a Contingent Interest in the property.
An Estate or Interest is Contingent, if the right of enjoyment depends upon

an Uncertain future Event.
So, in order to find out whether an Interest is Vested or Contingent, it is to

be tested whether there is immediate right of Present or Future Enjoyment
(Vested) or whether the Right itself accrues on the happening or non-happening
of an uncertain event (Contingent).
FOR EXAMPLE –
A property is transferred to Pritesh, only if Pritesh attained the Age of 18.

Here, the Interest created in favour of Pritesh is only Contingent Interest i.e.,
Pritesh must Survive till the Age of 18.
 CHARACTERISTICS OF CONTINGENT INTEREST –
1. Contingent Interest fully on the fulfilment of a Condition. The Non-

fulfillment of a Condition affects the interest.
2. If the transferee dies before obtaining possession, it reverts back to the

transferor and does not go to the transferee’s heirs.
3. It is transferable, but not inheritable.
4. In case of Contingent Right, there is no present right but only a mere

promise for giving such right which may be nullified on failure of the
condition.
 WHEN CONTINGENT INTEREST BECOME VESTED INTEREST -
A Contingent Interest depending on the happening of Specified Future

Event, becomes Vested Interest on the happening of that event. if the
contingency becomes impossible, the Interest never comes into effect.
On the other hand, Contingent Interest depending on the non-happening

of Uncertain Specified Event, becomes Vested when the happening of the
event becomes impossible.
8
NOTE NO. 4

of the Author)
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Q. Explain “Conditional Transfer”. Explain the terms – “Conditional

Precedent” and “Conditional Subsequent”. Explain the different types of
Conditional Transfer.
A INTRODUCTION –
The provisions of “Conditional Transfer” describes in Section 25 to 34 of

the Transfer of Property Act, 1882.
Every person competent to contract can transfer a property either

Absolutely or Conditionally. Such Conditions may be either “Condition
Precedent” or “Condition Subsequent”.
In Condition Precedent, Conditions must be fulfilled BEFORE a person

acquire an interest in a property. In Condition Subsequent, Conditions must be
performed AFTER the transfer has taken place.
FOR EXAMPLE –
Pranav transfers a House to Ranveer on the CONDITION that Ranveer

shall marry Alia. This is a “Condition Precedent”.
But, if Pranav transfers the House to Ranveer with a CONDITION that

Ranveer shall marry Alia within Two Years from the date of the transfer. This is
a “Condition Subsequent”.
 “CONDITION PRECEDENT” (SECTION 25 & 26) –
 ESSENTIALS OF “CONDITION PRECEDENT” –
1. The Condition Precedent must not be IMPOSSIBLE OF PERFORMANCE.
FOR EXAMPLE -
Sahil transfers a Farm to Amol on CONDITION that he shall walk

Hundred Miles an Hour. The Condition is incapable of performance and
hence, the transfer is VOID.
1
2. The Condition Precedent must be Lawful and not Forbidden by Law.
FOR EXAMPLE -
Yatin transfers Property to Amit on condition that he shall Murder

Amrish. The transfer is VOID.
3. The Condition Precedent must Obey the provisions of all Laws.
FOR EXAMPLE -
Shashi transfers property to his niece Karishma, if she will Desert

her husband. The transfer is void.
4. The Condition Precedent should not be Fraudulent or cause Injury to the

person or Property of another person or should not be Immoral or
Opposed to Public Policy.
 FULFILLMENT OF CONDITION PRECEDENT (SECTION 26) –
1. If the terms of a transfer of property impose a Condition to be fulfilled

BEFORE a person can take an interest in the property, then the condition
is deemed to have been fulfilled if it has been Substantially complied with.
The Substantial Compliance of Condition Precedent is known as “the Rule
of Cy press”.
2. Further, the condition precedent are constructed liberally in favour of

Vesting and against divesting. This is known as “Rule in Edwards Vs.
Hammond”.
FOR EXAMPLE –
 Lakhan transfers property to Ajay on CONDITION that Ajay should marry

with the Consent of Amar, Akbar and Anthony. Anthony dies. Ajay
marries with the consent of Amar and Akbar, Ajay deemed to have
SUBSTANTIALLY FULFILLED the condition.
 Pritesh transfers property to Yatish on CONDITION that Yatish should

marry with the consent of Satyam, Shivam and Sudaram. Yatish marries
WITHOUT THE CONSENT of Satyam, Shivam and Sudaram, but obtains
their consent after the Marriage. Yatish has NOT FULFILLED the condition.
2
 CONDITION SUBSEQUENT (SECTION 27 TO 34) –
Condition Subsequent has different types of transfers. They are as

follows -
1. SUBSEQUENT TRANSFER ON FAILURE OF PRIOR TRANSFER (SECTION

27) -
This Section deals with the Second Transfer on FAILURE of the Prior Valid
Transfer. The Rule is that “if the Prior Interest fails, then the Subsequent
Interest in the property takes effect, even though the First transfer has failed in
a manner not as thought of by the transferor. This is otherwise known as
“Doctrine of Acceleration”.
 “DOCTRINE OF ACCELERATION” –
Section 27 of Transfer of Property Act speaks about “Doctrine of

Acceleration”. It means when a Prior Interest fails by reason of non-fulfillment
of a Valid Condition, then the Subsequent Interest gets life and gets accelerated
and takes effect early. It is as if the Prior Interest had never existed.
 AJUDHIA VS RAKHMAN (CASE LAW) -
The Husband gifted a property to his wife for life and then absolutely to their
children. The Gift to the wife failed under a Local Act due to Non-Registration.
The Court held that since the Gift to Wife was not Valid, it accelerated the Gift
to the Children.
FOR EXAMPLE –
Shirin transfers property to Mrunal on CONDITION that Mrunal shall

execute a certain Lease within 3 Months AFTER Shirin’s death and if Mrunal
neglects to do so, then property will go to Harish or if Mrunal dies in Shirin’s
lifetime, the transfer in favour of Harish takes effect.
 “CONDITIONAL LIMITATION” (SECTION 28) -
Section 28 speaks about “Conditional Limitation”. An Interest in a property

may be created to accrue to any person with a condition that in case a Specified
Uncertain Event HAPPENS, then such interest shall pass to another person.
Similarly, it may be with a Condition that in case a Specified Uncertain

Event DOES NOT HAPPEN, then such interest shall pass to another person.
FOR EXAMPLE –
Ganesh transfers property to Shankar with the CONDITION that Shankar

must go to England within 3 years from the date of the transfer and in case, he
3
does not go within the said period, property will go the Vishwas. Now in case,
Shankar does not go to England, then Vishwas gets a property.
 FULFILLMENT OF CONDITION SUBSEQUENT (SECTION 29) -
An ulterior (subsequent) transfer to the second party as contemplated in the

last preceding Section cannot take effect unless the condition by the first
transferee is strictly fulfilled.
FOR EXAMPLE –
Somesh transfers property to Nitin, to be passed to him on his attaining

Majority or Marrying, with a Proviso that, if Nitin dies as Minor or Marries
without Dipak’s Consent, then property will go to Sudesh.
Nitin marries without Dipak’s Consent. Now the transfer to Sudesh takes
effect.
 INVALID ULTERIOR DISPOSITION DOES NOT AFFECT THE PRIOR

DISPOSITION (SECTION 30) -
If the Ulterior (Subsequent) Disposition is not valid then the prior disposition
is not affected by such Ulterior Invalid Disposition.
FOR EXAMPLE -
Arjun transfers a Farm to Kiyara for her life and if Kiyara then does not
desert her husband then the farm will go to Kareena. Now, Kiyara is entitled to
the farm during her life time as if there is No Condition has been attached
because the Condition is Illegal/ immoral.
 TRANSFER CEASE TO HAVE EFFECT ON HAPPENING OR NON-HAPPENING

OF A SPECIFIED UNCERTAIN EVENT (SECTION 31) -
On the transfer of property, an interest therein may be created with the

Condition that it shall Cease to exist in case a Specified Uncertain Event shall
HAPPEN or in case a Specified Uncertain Event shall NOT HAPPEN.
FOR EXAMPLE –
1. Madhu transfers an Agriculture Land to Vaibhav for his life with the
Condition that in case, Vaibhave cuts down a certain tree, then the
transfer shall cease to have any effect. Now, Vaibhave cuts down that
tree and so Vaibhav loses his life interest in that land.
2. Unmesh transfers an Agriculture Land to Dhananjay on Condition that if

Dhananjay does not go to USA within 1 year after the date of such
4
transfer, then his interest in the farm shall cease. If Dhananjay does not
go to USA within 1 year then Dhananjay’s Interest in that land ceases.
 SUCH CONDITION MUST NOT BE INVALID (SECTION 32) –
Only if the Event specified is Lawful, the Condition that an interest shall cease
to exist shall be Valid.
FOR EXAMPLE –
Pankaj transfers to Rajesh an interest in a property with the Condition

that Rajesh shall go to Pakistan within 2 years from the date of transfer. Rajesh
cannot go to Pakistan within 2 years, because it is an Alien Enemy Nation for
India. Now the Condition is Invalid and hence, the interest passes on to Rajesh.
 TRANSFER CONDITIONAL ON PERFORMANCE OF ACT AND NO TIME

SPECIFIED FOR PERFORMANCE (SECTION 33) –
When no time is fixed for performance of a condition subsequent, then such

Condition is broken -
1. when the person does any act, which renders the performance
IMPOSSIBLE or
2. if he does not act which makes the performance indefinitely

postponed.
FOR EXAMPLE –
A Gift made to Ranjit on the Condition that unless Ranjit joins Army, then
the Gift will go to Jivan. Now, Ranjit joins an Ashram as a Monk and thereby
renders it impossible that Ranjit shall fulfil the Condition. Now Jivan is entitled
to get the property.
 TIME FOR PERFORMANCE SPECIFIED (SECTION 34) –
If the performance of a condition, whether Precedent or Subsequent, is

prevented by a person interested in its non-fulfilment, then the delay is excused
ant he condition gets discharged.
FOR EXAMPLE -
Chetan transfers property to Sumit with a condition that if Sumit does not
go to France within 3 years, then the property will go to Sharad. Sharad adopts
foul means and prevents Sumit from going to France. Now, the Delay in the
performance of the Condition is Excused.
5
Q. Explain essential CONDITIONS for application of "Doctrine of Election".
OR
"Foundation of Doctrine of Election is that the person taking benefit of an

instrument must also bear burden" – Explain.
OR
What is "Doctrine of Election"? Explain with Example.
OR
A INTRODUCTION –
DOCTRINE OF ELECTION is explain in Section 35 of T.P.Act.
“ELECTION” means Choosing of one right between two rights, when there
is clear intention that both the rights cannot be enjoyed but only one.
The word "Elect" literally means "to choose by vote". It is based on the
Principle of Equity and is applicable to all kinds of properties, Immovable or
Movable.
This "Doctrine of Election" is an Exception to maxim/ rule of "nemo dat

quod non habet" that means "No one can transfer his better title than he has".
MEANING OF "DOCTRINE OF ELECTION" –
The "Doctrine of Election" provides that one person can transfers/conveys

property of another.
EXAMPLE OF "DOCTRINE OF ELECTION" –
Anant has 10 Acres of land worth Rs. 75 Lakhs at Ghoti, in Nasik District.
Anant's friend Sumant wanted to give this land to his daughter Mohini as
a GIFT and ready to give Rs. 90 lakhs rupees to Anant, if Anant gives CONSENT to
transfer this land to Mohini.
Then it is on Anant "to elect" whether to retain property or to receive the

benefit of Rs. 15 Lakhs and transfer the land to Mohini. However, there should
not be any compulsion, threat, coercion, undue influence against Anant by
Sumant.
If, Anant elects to receive Rs. 90 lakhs, he gets the benefit of Rs. 15 lakhs
and Mohini with 10 acres of land. This is "Doctrine of Election" & if Anant
refused to give his land then he has to relinquish the benefit of Rs. 15 Lakhs.
6
ELECTION WHEN NECESSARY (Section 35) –
"Where/ a person/ professes/ to transfer property/ which he has/ no

right to transfer/ & / as a part of/ same transaction/ confers/ any benefit/ on
the owner/ of the property/ such owner/ must elect/ either to confirm/ such
transfer/ or to dissent/ from it/ & / in later case/ he shall relinquish/ the benefit
so conferred/ the benefit/ so relinquished/ shall revert/ to the transferor/ or his
representative/ as it had/ not been disposed off".
Where the transfer is gratuitous/ and transferor has,/ before the

election/ died or becomes incapable of making fresh transfer i.e. unsound
mind/ and in all cases where transfer is for consideration,/ to the charge of
making good/ to the disappointed transferee, / amount or value attempted to
be transferred/to him"
IMPORTANT POINTS REGARDING "DOCTRINE OF ELECTION" –
1. The Doctrine of Election is an exception to the maxim, "nemo dat quod

non habet” that means "No one can conveys better title than he
himself has".
The transferor disposes off the property on which he has no right to

transfer. In certain occasions, like in rule of "Doctrine of Election", he
can transfer.
2. The transferor provides some benefits to the (real) owner of the

property. Generally, benefit value must be more than property
question.
3. The dispose of property and the conferment of benefit on its owner

should be part of same transaction.
4. The real owner is to put to election whether to confirm the transfer

and accept the benefit or to dissent the benefit and retain he property.
5. The real owner is requires "to accept the transfer in toto" or "reject it
in toto". He cannot partly accept and partly reject.
6. This doctrine is based on the Principle of Equity and Natural Justice.
7
Q. Who is an "OSTENSIBLE OWNER"? Explain the principle underlining the
Doctrine of Ostensible Owner.
OR
When a transferee of an ostensible owner, is protected against the real

owner? Illustrate.
OR
Who is an "OSTENSIBLE OWNER"? When can Ostensible Owner sell the

property so as to pass a good title to the purchaser?
OR
What is mean by "Doctrine of Holding Out"? – Explain in detail.
A INTRODUCTION & MEANING OF "OSTENSIBLE OWNER" –
"OSTENSIBLE OWNER" = "Apparent Owner"
Section 41 of T.P. Act explains about Ostensible Owner or Doctrine of

Holding Out
It is used in contradistinction to the expression "Real Owner". An

Ostensible Owner is one, who has all the qualities of ownership without being
the real owner. An Ostensible owner is one who is not a real or true owner, but
exhibits himself to be so by possessing the qualities of ownership and
possessing the property but never intended to own the property.
Section 41 that is "Doctrine of Ostensible Owner" is an exception to the

maxim "nemo dat quod non habet” that means "No one can conveys better title
than he himself has".
ILLUSTRATION OF DOCTRINE OF OSTENSIBLE OWNER –
Nagesh, a hindu husband purchased (i. means he makes the payment) a

bunglow in the name of his wife JAYA and in the Sale Deed also he mentioned
that a consideration (bunglow) was procured by her with her stridhan.
Thereafter, he looked after the property. He died on one day.
After his death, JAYA sold the bunglow to DEVENDRA and got it registered
in favour of DEVENDRA.
RATAN, the son of NAGESH & JAYA, sued DEVENDRA alleging that JAYA
had no right to sale the bunglow because NAGESH being the real owner of the
house.
8
Court held that RATAN has no right on the property. JAYA being an
OSTESIBLE OWNER & she has right to sale hence she is competent to sale the
bunglow.
Here, husband – NAGESH was a REAL OWNER, wife JAYA is an OSTENSIBLE

OWNER that is an apparent owner. JAYA is also said to be "HOLDING OUT" the
property.
TRANSFER BY OSTENSIBLE OWNER (Section 41) –
"Where/ with the consent/ express or implied/ of the person/ interested

in/ immovable property/ a person is/ Ostensible Owner/ of such property/ &
transfers/ the same/ for consideration,/ the transfer/ shall not be voidable/ on
the ground/ that the transferor/ not authorised/ to make it".
Provided that the transferee after taking reasonable care to ascertain that
the transferor had power to make the transfer and transferor has acted in good
faith.
Section 41 deals with the transfer of property by an ostensible owner that

is one who is not the real owner.
The General Rule is that all Ostensible Owner cannot pass on a good title
to the transferee but if the condition laid down in the section is fulfilled, then
the transfer shall not be voidable on the ground that the transferor was not
authority to make such transfer that means if the transferor has authority to
transfer the property then the transfer becomes valid.
REQUIREMENTS OF SECTION 41 –
This section requires the following CONDITIONS for its application –
1. The transferor is Ostensible Owner.
2. He is so by the consent that is express or implied, of the real owner.
3. The transfer is for consideration.
4. The transferee has taken reasonable care to find out that whether the
transferor had power to transfer the property?.
Apparently, such ostensible owner of property looks like a real owner but
if scrutinized minutely, it may be found that though his name (ostensible owner)
appears on the Record of Rights, Sale deed etc. and he posses property but he is
not a real owner.
9
The expression in Section 41 excludes such person who had possession of
the property as an agent, guardians or person in any fiduciary relationship. A
guardian of a minor cannot be said to be ostensible owner of the minor's
property, as a minor cannot give consent.
One of the important requirements of this section is that the apparent

ownership of the transferor must have been created or permitted by the real
owner. The real owner permits (consent) the ostensible owner either by
express word or implied conduct.
The transferee must prove that he had taken a reasonable care or made
reasonable enquires to ascertain that the transferor had power/ authority to
transfer the property.
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Q. Explain the ESSENTIALS of "DOCTRINE OF ESTOPPEL".
OR
What is the "Doctrine of Feeding the grant of Estoppel"?.
OR
Discuss the law relating to transfer by authorised person/ who

subsequently acquires interest in the property.
A MEANING OF "DOCTRINE OF ESTOPPEL" / "FEEDING A GRANT BY

ESTOPPEL" –
ESTOPPEL = "to stop from denying"
The word "ESTOPPEL" is derived from the French word "ESTOUP" which
means "shut the mouth". When a person tells us something, we generally hear
him. If he says something different or contradicting, we would not hear any
more and contradict such statement. Otherwise, we shall comply with it.
Section 43 of T.P. Act explains the provisions about "Doctrine of feeding

the grant by estoppel".
This Principle is adopted from "English Common Law".
If, a man who has no title to property, grants it by an agreement which is

in form would carry the legal estate and he subsequently acquires an interest
sufficient to satisfy the grant, the estate instantly passes i.e. transfers.
The transferee would get a good title. The transferor would be estopped
from denying his title.
10
ILLUSTRATION-
JITENDRA, a hindu, who has separated from his father SOHAN. JITENDRA
sells to SANJIV 3 FARMS i.e. 'X' , 'Y' & 'Z' representing that JITENDRA is
authorised to transfer the same.
Out of these 3 Farms 'Z' does not belong to JITENDRA because it has been
retained by his father SOHAN on Partition.
But, on SOHAN's death JITENDRA as a sole legal heir obtains 'Z', SANJIV
not having rescinded the Contract of Sale, may require JITENDRA to deliver 'Z' to
him if JITENDRA refusing to transfer that farm i.e. 'Z' to SANJIV.
 TRANSFER BY AN UNAUTHORISED PERSON WHO SUBSEQUENTLY

ACQUIRES INTEREST IN THE PROPERTY TRANSFERRED (SECTION 43)-
"Where/ a person/ fraudulently or erroneously/ represents that/ he is

/authorised to transfer/ certain immovable property/ & professes to transfer/
such property/ for consideration,/ such transfer/ shall at the option/ of
transferee/ operate an interest/ during which/ the contract of transfer/
subsists".
Nothing in this section shall impair the right of transferee in good faith for
consideration without notice of the existence of the said option.
OBJECT OF THIS SECTION 43 –
The Object of Doctrine of Estoppel is to protect the bonafide transferee.
ESSENTIAL CONDITIONS FOR "DOCTRINE OF ESTOPPEL" –
1. A fraudulent or erroneous representation that the transferor had

authority to transfer certain immovable property.
2. The transfer is for consideration.
3. The transferor subsequently acquires the interest which he had

professed to transfer.
i. FRAUDULENT OR ERRONOUS REPRESENTATION-
In order to Section 43, it is necessary that there should be

misrepresentation, fraudulent or erroneous about the right/ ownership to
transfer the property.
In other words, the transferee must have been mislead that the transferor
had power to transfer the property.
11
ii. TRANSFER IS FOR CONSIDERATION -
This Doctrine of Estoppel is applicable only to the transfer of properties

for value.
In other words, this doctrine is not applicable where the transfer is

gratuitous that is without consideration that means where the property has
been transferred by way of Gift.
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Q. Explain the "Doctrine of Lis pendens".
A MEANING OF "DOCTRINE OF LIS PENDENS" –
Lis = Litigation
Pendens = Pending
Lis Pendens = Litigation Pending.
Lis Pendens = When the litigation is pending in the Court of

Law.
The Legal Maxim "Ut lite pendente nihil innoventure" which means
"pending litigation nothing new can be introduced"
The "Doctrine of Lis Pendens" has been explain in Section 52 of T.P. Act,
1882.
ILLUSTRATION-
PRAKASH is an Owner of a bunglow. He enters into a contract that is

"Agreement to Sell" of the said Bunglow with JAYESH for Rs. 12 Lacs and
received Rs. 3 Lacs as an advance i.e. 'Earnest Money'.
Within the stipulated date, PRAKASH does not come forward to register
Sale Deed on repeated request of JAYESH. Hence, JAYESH filed a suit against
PRAKASH for Specific Performance of the Contract.
While, the suit is pending before the Court, PRAKASH sold the Bunglow to
SUYOG and registered a Sale Deed in favour of SUYOG.
Prakash subsequently sold the property to SUYOG, is void because there

is "Lis Pendens" i.e. litigation is pending in the Court of Law regarding the said
Bunglow.
12
"LIS PENDENS" (SECTION 52) –
"During/ the pendency/ in any Court/ having authority/ within limits of

India/ any suit or proceeding/ which is/ not collusive & in which any right/ to
immovable property/ is directly or specifically in question,/ the property cannot
be transferred or otherwise dealt with/ by any party/ to the suit or proceeding/
so as to affect/ the right of/ any other party thereto/ under any decree or order/
which may be made therein/ except/ under the authority of the Court/ & of such
terms/ as it may impose".
ESSENTIAL CONDITIONS FOR SECTION 52 –
1. A suit or proceeding for a immovable property is pending before the

Competent Court.
2. That the suit or proceeding should not be under any collusion between
the parties.
3. A right to immovable property is directly & specifically in question in

that suit.
4. Further transfer has been made during the pendency of the suit or
proceeding.
5. That further transfer has been made by any of the party to the suit.
6. That suit is treated as pending from the date of filing the suit in the
Competent Court.
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Q. Explain the "Doctrine of Fraudulent Transfer".
OR
"Every transfer made with intent to defeat or delay the creditors is

voidable at the option of the creditors so defeated or delayed" – Explain.
A "FRADULENT TRANSFER" explained under Section 53 of T.P. Act,

1882.
MEANING OF "DOCTRINE OF FRAUDULENT TRANSFER"-
"A transfer made with intent to defeat or delay the creditors of the
transferor is called as, "Fraudulent Transfer".
The term “Fraudulent Transfer” means “Dishonest Transfer”. Fraud is of

various forms that is fraud of debtor against the creditor where a debtor makes
13
fraudulent transfer of his property to defeat or delay the interest of creditor and
seeking to put his property out of his creditor, is a fraudulent transfer.
DEFINITION OF "DOCTRINE OF FRAUDULENT TRANSFER" (SECTION 53) –
i. "Every transfer/ of immovable property/ made with intent/ to

defeat or delay/ the creditors/ of the transferor/ shall be voidable/
at the option/ of the creditor/ so defeated or delayed".
ii. This sub- section shall not impair the rights of the transferee in
good faith & for consideration.
A suit instituted by the creditor to avoid a transfer on the ground that it

has been made with intent to defeat or delay the creditor of the transferor and
shall be instituted for the benefit of the creditor.
ILLUSTRATION FOR FRADULENT TRANSFER –
In January 2011, RAMESH borrowed a loan of Rs. 30 lacs @ of 12% P.A.

interest from S.B.I. for 3 years period and for that purpose, RAMESH mortgaged
his Flat in favour of SBI. In this way, RAMESH transferred his temporary interest
in favour of SBI.
In the month of December 2013 i.e. 3 years period of loan is completed

but still Rs. 8 lacs are in arrears with RAMESH. RAMESH feared by this and
therefore he transferred that mortgaged Flat by Gift Deed to his wife BIPASHA.
She know about the bad intention of her husband RAMESH but both completed
this transfer to defeat or delay the creditor i.e. SBI. Hence, this transfer by
RAMESH to BIPASHA is "Fraudulent Transfer".
But, if RAMESH sold his property i.e. mortgaged flat for Rs. 40 lacs to
SARTHAK instead of his wife and SARTHAK never know about the bad intention
of RAMESH and he purchased it in good faith then he is a "Bonafide Purchaser".
Then, there shall not impair the rights of SARTHAK i.e. transferee in good faith
and for consideration.
If, RAMESH transferred his flat to his nephew ROHIT by Gift. After
enquiry, ROHIT knows that RAMESH transferred that property to him to defeat
or delay the creditor then its depend upon ROHIT either, to accept the transfer
or not.
Here, ROHIT is subsequent transferee and SBI is a first transferee.
IMPORTANT POINTS REGARDING "FRAUDULENT TRANSFER" –
1. T.P. Act does not allow the fraudulent transfer and secured an
innocent person to suffer with the fraudulent transfer.
14
If the transferor and transferee collude with each other with bad
intention to defeat or delay his creditor of the transferor, such act of
the transferor is called as "Fraudulent Transfer" and Section 53
prohibits such type of transfer.
2. If, the transferee participated in the transferor's bad intention to

defeat or delay his creditor, such transfer can be set aside i.e.
cancelled even if it is with consideration or without consideration.
3. If the transferor had no intention of defeat or delay his creditor i.

means, if there is no such bad intention i.e. ill intention in the mind of
transferor, it does not comes under section 53 i.e. 'fraudulent
transfer'.
4. It is the responsibility of the transferee to show that-
i. he acted in good faith.
ii. he paid the consideration for the transfer.
5. If the transferor transfers his entire property to one of his creditors

that it cannot be said that he did a 'fraudulent transfer' because the
transferor wanted to get rid off the loan and in accordance with it, he
has given preference to one of his creditors. This type of transfer is
called as, "Fraudulent Preference Transfer" and such fraudulent
preference transfer is not voidable u/s 53.
But, where there is only a single creditor and a transfer for

defeat and delay him, can be cancelled under this section 53.
15
NOTE NO.5

of the Author)
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Q. What is "Doctrine of PART PERFORMANCE"? Who is entitled to its

benefit? When can such right exercise?
OR
Explain in detail, "Doctrine of Part Performance".
A INTRODUCTION-
Section 53-A explains about "Doctrine of Part Performance".
Originally, the Doctrine of Part Performance was developed in England. It

was not included in the Original T.P. Act, 1882. This Section 53-A was inserted by
Transfer of Property (Amendment) Act, 1929.
OBJECT OF "DOCTRINE OF PART PERFORMANCE" –
The Doctrine of Part Performance under Section 53-A protects an

innocent purchaser/ buyer/ transferee to takes possession of property.
Sometimes, Seller may become greedy if, other person offers of more
price, induce by the subsequent offer of more price, the seller wants to
repudiate the contract i.e. the original contract who has already performed
certain portion of the contract. In such case, Section 53-A protects such prior
purchaser.
In certain occasions, the purchaser/ transferee also goes back from the
contract as he could not procure sufficient money for the consideration of
property. In such case, the seller has to face financial hardship due to the breach
of contract by the purchaser. In such case, Section 53-A also protects the seller.
This Doctrine of Part Performance is a defence. It is s shield and not a

sword. It is a right to protect his possession any action either by the transferor
or transferee. Section 53-A also prevents fraud.
1
 ILLUSTRATION FOR PART PERFORMANCE-
RITESH has FLAT owned by him. RITESH entered into an "Agreement to

Sell" with DINKAR for the Sale of his Flat for Rs. 90 Lacs. DINKAR paid Rs. 30
Lacs as an advance (i.e. an earnest money) towards the consideration price of
the Flat and meanwhile RITESH handed over the possession of Flat to DINKAR.
When DINKAR was ready to pay the balance amount i.e. Rs. 60 Lacs to
RITESH then RITESH refused to receive the said amount and demanded DINKAR
to vacate the Flat and to cancel the Agreement to Sell.
DINKAR is ready and willing to perform his part of contract but RITESH is
not ready and willing to perform his par of contract.
Hence, DINKAR can filed a Suit for Specific Performance of Contract

against RITESH, in which RITESH cannot take a defence that the Agreement to
Sell of the Flat, is not registered.
This is called as "Doctrine of Part Performance".
Section 53-A of the T.P. Act, which deals with the "Doctrine of Part
Performance", is an Exception to the General Rule that, "Every Transfer of
Property is to be registered, if it is required by Law".
According to this doctrine, where a person has taken possession of

immovable property on the basis of a Contract of Sale (i.e. Agreement to Sell)
and he has either performed or is willing to perform his part of contract, then he
would not be ejected from the property on the ground that sale was
unregistered and legal title has not been transferred to him.
ESSENTIAL ELEMENTS/ IMPORTANT CONDITIONS FOR PART PERFORMANCE-
1. There must be a Contract (i.e. Agreement to Sell) to transfer an

immovable property for consideration.
2. The Contract must be writing and signed by transferor and transferee

or by any other persons on their behalf.
3. The terms and conditions of the document i.e. Agreement to Sell even
though it is not registered can be understood with reasonable
certainty.
4. The transferee may or may not be in possession of the property.
5. The transferee, after taking into possession of the property must have
done some act in furtherance of the contract i.e. agreement to sell.
2
6. The transferee has performed or ready and willing to perform his part
of contract.
3
PART II
SPECIFIC TRANSFER
(Section 54 – 137)
Q. Explain the essential elements of Valid Sale of Immovable Property.
OR
What is the subject matter of Sale under the T.P. Act.
OR
How the Sale of Immovable property is effected.
A INTRODUCTION -
Chapter II, containing Section 54 to 57 of T.P. Act, 1882 lay down the
provisions relating to "SALE OF IMMOVABLE PROPERTY"
The word 'Sale' literally means, "Voluntary transfer of property from one
person to another for a price".
Sale is a transfer of absolute interest in property, movable or immovable

property from one person to another in consideration for price, paid or
promised or partly paid and partly promised.
Sale under section 54 of the T.P. Act refers to "Sale of Immovable

Property”.
DEFINITION OF "SALE" (SECTION 54) –
"Sale/ is a transfer/ of ownership/ in exchange/ for a price/ paid or

promised/ or part paid and part promised".
In simple words, a transfer of right of immovable property in

consideration of sum of money is called as "Sale".
SALE HOW MADE –
Such transfer, in case of tangible immovable property i.e. land, building,

house etc. of the valued of Rs. 100/- & more or other intangible things i.e.
fishery, can be made out only by a registered instrument i.e. Sale Deed which
must be Written and Registered.
In the case of tangible immovable property of a value less than Rs. 100/-,
such transfer may be made either by Registered Instrument or by delivery of
4
property. Delivery of tangible immovable property takes place when the seller
places the buyer in the possession of property.
 ESSENTIAL ELEMENTS OF 'SALE'-
1. PARTIES TO SALE-
There are two parties in a Sale i.e. Seller/ Vendor and Buyer/ Purchaser.
SELLER/ VENDOR (TRANSFEROR)-
Seller must be competent person i.e. Competent to Contract.
He must possess a good title on the property. He must not be a minor or

person of unsound mind i. means he must be a person having capacity to
contract.
BUYER/ PURCHASER (TRANSFEREE) –
The buyer may be any person who is not disqualified to be a transferee. A

minor is competent person as a buyer if the sale transaction is conducted by his
guardians and that sale transaction is for welfare of the minor otherwise a minor
or lunatic is not entitled into a contract directly.
2. SUBJECT-MATTER-
Subject- matter is always 'Immovable Property' such as land, building or

anything attached to the earth or such as a right of fishery, mango trees etc.
But, the property must be in existence at the date of transfer by way of

sale and is transferable property within the meaning of section 6 of T.P. Act.
3. PRICE OR CONSIDERATION-
The transfer of ownership in exchange for a price is the essence of sale.

Price means money consideration i.e. price.
If the consideration of the transfer is something other than price then it is

not a Sale, it may be an exchange but not a Sale. The price is fixed by the parties
before the agreement took place.
4. TRANSFER ON CONVEYANCE (DEED) –
There must be Conveyance i.e. transfer of absolute interest in the

property by the seller in favour of a buyer, in a manner prescribed by Law.
The Registration Act, 1908 if the immovable property worth Rs. 100/- or
more requires any Sale Deed in Writing and Registered. Ownership is not
transferred until registration.
5
Section 54, therefore clearly provides that Possession (+) Unregistered Sale
Deed do not transfer valid transfer to the buyer. Nobody can call himself as a
owner on the basis of Agreement to Sell.
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Q. State the Rights and Liabilities of Seller and Buyer of immovable property.
OR
Discuss the Rights and Liabilities of Seller and Buyer before and after the
completion of Sale.
A INTROCUTION -
Section 55 of T.P. Act, 1882 deals explains about Rights and Liabilities of
Seller and Buyer before and after completion of Sale.
* RIGHTS & LIABILITIES OF SELLER & BUYER (SECTION 55) –
* RIGHTS & LIABILITIES OF SELLER
* LIABILITIES OF SELLER-
1. The Seller is bound-
a. to disclose to the buyer any Material Defect in the property or in

the seller's title thereto, of which the seller is and a buyer is not
aware and which the buyer could not with ordinary care discovered.
b. to produce to the buyer, on his request for examination all the

documents of title relating to the property which are in the seller's
possession and power.
c. to answer to the best of his information, all relevant question put to

him by the buyer in respect to the property or the title thereto.
d. The seller is bound on payment of amount in respect of price, to

execute a proper Conveyance ( i.e. Sale Deed) of the property when
the buyer demanded it to him for execution at a proper time and
place.
e. The seller is bound between the date of Contract of Sale (i.e.

Agreement to Sell) and delivery of property, to take as much care of
the property and all documents of title thereto which are in his
possession as an owner.
f. to give to the buyer or such other person as the buyer directs, such
possession of the property.
6
g. to pay all public charges or taxes due on such date.
2. The seller has to produce all necessary documents relating to the

property including linked document. The seller need not give all the
documents to the buyer before the completion of sale. But, he has
to show them to the buyer (for legal advisor).
3. Where the buyer pays certain amount as an advance (i.e. earnest

money), the seller has to give receipt (earnest receipt) for it or shall
have to mention in Agreement to sell.
4. If the seller has any dues or debts or any encumbrances (i.e. bank
loan, tenant etc) on that property, he shall have to pay such dues or
debts or encumbrances. He shall have to pay all the public charges
i.e. assessment tax, electricity bill, water bill etc. up to the date of
Sale deed and delivery of possession.
5. The seller should sale his own property. He should not enter into a
contract of sale if the property on which he has no right i.e. "Nemo
dat quod non habet" i. means "no one can transfer better title than
he has".
6. It is the duty of the seller to follow all the terms and conditions of
Agreement to Sell and also the law in force.
*RIGHTS OF SELLER –
1. The Seller is entitled to receive consideration for the value of the

property agreed between the parties i.e. seller and buyer.
2. The seller is entitled to receive rents and profits of the property till
the ownership thereof passes to the buyer.
3. If, the buyer breaches any terms and conditions of Agreement to

Sell, the seller has a right to sue the buyer. He can also claim the
damages from the buyer in appropriate cases. If the buyer fails to
fulfil the terms and conditions of the Agreement to sell, the seller
can sue the buyer for specific performance of contract.
4. If the seller has debts, he may direct the buyer to pay all or any of
such debts from the consideration of the property to the creditors
of the seller. The seller may give directions to the buyer to pay the
consideration to the third person.
7
 AFTER SALE-
5 If any amount is unpaid, the unpaid seller is entitled to receive

interest on such amount.
6 The seller has to handover all the documents, receipts of public

charges etc. relating to the property sold to the buyer. But in
certain occasions, where a part of property is sold for any portion of
an agricultural land and seller retains remaining property, seller
may retain the original documents of that property with him and
give the Certified Copies to the buyer.
RIGHTS AND LIABILITIES OF BUYER -
LIABILITIES OF BUYER (BEFORE & AFTER SALE) –
1. It is the duty of the buyer to inspect the property and if he could not
find any material defects of his inspection at the time of agreement
to sell, afterwards he cannot raise his objection. But, he has right to
raise the objection in case of latent defects.
2 It is the duty of the buyer to enquire about the title of the seller i.e.
ownership of the property.
3 If the property is delivered to the buyer at the time of Agreement to

Sell then the buyer shall have to bare any loss arising from the
destruction or injury to the property and not cause to the seller.
AFTER SALE-
4 The buyer is bound to pay at the time and place of the completing
the sale, the purchase money to the seller or to such other person as
the seller directs.
5 If the property is passed to the buyer after part payment, it is the

duty of the buyer to pay the remaining amount as per terms and
conditions and at the date fixed in the agreement to sell.
6 It is the duty of buyer to bare all registration expenses such as

stamp duty, registration charges, incidental charges etc.
RIGHTS OF BUYER-
1 The buyer is entitled to receive all information of any material

defect in the property and in the seller's title thereto, of which the
seller is aware and the buyer is not.
8
2 The buyer has right to inspect all the documents relating to the
property and the seller has to produce all such documents for the
inspection of the buyer.
3 The buyer is entitled to question to the seller relating to the

property and its title.
4 If the buyer pays any advance (earnest money) with an intention to

purchase the property, he is entitled to receive Earnest Receipt for
such payment or is entitled to enter into an Agreement to sell.
5 The buyer need not pay any public charges up to the date of final
Sale Deed. It is the duty of the seller to pay all such public charges
that is electricity bill, water bill, property tax etc. until the date of
completion of sale.
6 If the seller breach any of the conditions of the Agreement to sell,

the buyer is entitled to sue him for Specific Performance of contract
and also to the damages.
7 If the seller has any debts, mortgages, encumbrances etc., he has to

clear them all before the sale. Buyer is entitled to transfer the
property without any encumbrances.
AFTER SALE –
8 As soon as, the registration completes that means Sale completes,

the buyer is entitled for possession of the property. It is the duty of
the seller to handover the property's clear possession to the buyer.
9 After the sale is completed, the buyer is entitled to get all original
documents relating to the property.
If the buyer purchases the part of the property then he is

entitled to obtain the certified copies of the property.
9
MORTGAGE
Q. Define "MORTGAGE". State its essentials and also discuss various
KINDS OF MORTGAGES.
A Section 58 of T.P. Act defines MORTGAGE and also explains

different Kinds of Mortgages.
INTRODUCTION-
The expression "Mortgage" literally means transfer of an interest by

delivering a property as a security against an advance as loan or existing or
future debts which gives rise to liability. It is a transfer of LIMITED INTEREST of
an immovable property as Security against loan, to another.
Section 58(a) of the T.P. Act defines the terms Mortgage, Mortgagor,
mortgagee, Mortgage Money and Mortgage deed
DEFINITION OF MORTGAGE –
"A Mortgage/ is a transfer of interest/ in specific immovable property/ for

the purpose of security-
a. the payment of money advanced or to be advanced by the way

of loan;
b. an existing or future debt;
c. the performance of an engagement which may give rise to a

pecuniary liability.
 ILLUSTRATION OF MORTGAGE -
DHIRAJ wants to repair and interior his own bunglow, hence, he has need
of 10 Lacs rupees. So, he MORTGAGED his bunglow with BANK OF
MAHARASHTRA for the purpose of security of loan. He executed on agreement
i.e. MORTGAGE DEED in favour of Bank and also registered that MORTGAGE
DEED. In this case DHIRAJ has not transfer his ownership but he only
transferred an interest in the property.
DHIRAJ is liable to pay Rs. 10 LAKHS (PRINICIPAL AMOUNT) (+) with

INTEREST.
10
"MORTGAGOR", "MORTGAGEE", "MORTGAGE-MONEY", "MORTGAGE-
DEED" –
 "MORTGAGOR"-
The Transferor is called as, "Mortgagor". The person who actually

mortgages the property is a "Mortgagor",
 "MORTGAGEE –
The Transferee is called as "Mortgagee". A Mortgagee is a person in

whose favour a mortgage is created.
 MORTGAGE-MONEY –
The Principal amount (+) Interest of which payment is secured for the time
being, is called as, "Mortgage-Money".
 MORTGAGE-DEED –
The Instrument i.e. document by which the transfer is effected is called as,
"Mortgage-Deed".
Any property which is above Rs. 100/-, such property i.e. mortgage must
be Written (i.e. Mortgage Deed) and Registered.
ESSENTIAL FEATURES OF MORTGAGE-
1. PARTIES OF MORTGAGE-
There are two parties in Mortgage-
The "Transferor" is called as "Mortgagor".
The "Transferee" is called as "Mortgagee".
The term Mortgagor is includes his heirs etc. It is similarly, the mortgagee
also includes heirs, executors etc. It is Common in every Kind of Mortgage.
Both the parties must be competent to contract according to law. The

minors, person of unsound mind and person disqualified by law from
contracting are not competent to Contract for Mortgage.
2. TRANSFER OF INTEREST-
In Mortgage, only an interest in property is transferred. The word

“transfer of interest” signifies that the interest, which passes to the mortgagee,
is not ownership. The Right of Mortgagee is only an accessory right, which is
intended merely to secure the due payment of a debt.
11
3. SPECIFIC IMMOVABLE PROPERTY –
The Subject-matter of mortgage must be a specific immovable property.

The property described in the mortgage-deed should be properly identified.
4. SECURITY-
The Purpose of transfer the property is to provide security of payment or

clearance of a debt.
5. CONSIDERATION-
Consideration exists in mortgage. Every mortgage must be supported by

consideration, which means something in return. The Mortgagor mortgages the
property in consideration of some Advance or an Existing or Future Debt.
6. REGISTRATION-
When the property is mortgaged, Mortgage Deed is to be Written and

Registered under the Registration Act, 1908 if the value of the property is Rs.
100/- and above.
 TYPES/ KINDS OF MORTGAGE-
Kinds of Mortgage is explain in Section 58, they are as follows-
1. Simple Mortgages.
2. Mortgage by Conditional Sale.
3. Usufructuary Mortgage.
4. English Mortgage.
5. Mortgage by Deposit of Title Deeds.
6. Anomalous Mortgage
1. SIMPLE MORTGAGE (SECTION 58(b))-
Section 58(b) explains about "Simple Mortgage".
 ESSENTIALS OF SIMPLE MORTGAGE –
i. There is No Delivery of Possession of the mortgaged property to the

Mortgagee.
ii. The Mortgager binds himself to repay the loan.
12
iii. If the Mortgagor fails to pay the Mortgage Debt, the Mortgaged
Property can be sold by the Mortgagee.
This is “Simple Mortgage”.
Thus, in Simple Mortgage, the mortgagee has no Right to actual

possession of the Mortgaged Property.
2. MORTGAGE BY CONDITIONAL SALE (SECTION 58(c)) –
Section 58(c) explains about the "Mortgage by Conditional Sale".
Where the mortgagor ostensibly sales the mortgaged property on

condition that on default of payment of mortgage money on the certain date,
the sell shall become absolute or
on condition that on such payment being made, the sale shall becomes
void or
on condition that on such payment being made, the buyer shall transfer
the property to seller.
This transaction is called as, "Mortgage by Conditional Sale" and the

Mortgagee is called as "Mortgagee by Conditional Sale".
3. USUFRUCTUARY MORTGAGE (SECTION 58(d)) –
Section 58(d) explains about the Usufructuary Mortgage.
If a Mortgagor delivers possession of the Mortgaged Property to the

Mortgagee and –
 authorizes the Mortgagee to retain such possession until payment of

the mortgage-money by the mortgagor and
 authorizes the mortgagee to receive the Rents and Profits accruing

from the property and to appropriate the same in lieu of Principal
Amount and Interest.
the transaction is called an “Usufructuary Mortgage”.
i. Usufruct means right of enjoying the use an advantage of another's

property.
ii. Usufructuary means one that has to use and get the profit of a
thing.
13
4. ENGLISH MORTGAGE (SECTION 58(e)) –
Section 58(e) explains about English Mortgage.
In an English Mortgage, the Mortgagor binds himself to repay the

Mortgage Money on a Certain Date, and as a Security, the Mortgagor transfers
the Mortgaged Property ABSOLUTELY to the Mortgagee with a Condition that
the Mortgagee will transfer the Mortgaged Property to the Mortgagor upon
Repayment of the Mortgage Money by the Mortgagor to the Mortgagee.
 ESSENTIALS OF ENGLISH MORTGAGE –
a. The Mortgagor binds himself to repay the money on a certain date.
b. He transfer the Mortgaged property ABSOLUTELY to the Mortgagee,

but under a Condition that he (i.e. Mortgagee) will return the property
to the Mortgagor on payment of the Mortgage Debt.
This is called “English Mortgage”.
5. MORTGAGE BY DEPOSITE OF TITLE DEEDS (SECTION 58 (f)) –
Section 58(f) of T.P. Act, explains about “Mortgage by Deposit of Title

Deeds”. This Mortgage is also called as, “Equitable Mortgage”, because in this
Mortgage, there is Simply a Deposit of Document of Title without anything in
Writing and without any other Formalities.
This is with a view to help the business community to raise money without
the lengthy procedure of preparation of Formal Mortgage Deed and its
Registration. The Main Advantage of this Mortgage is that there need not be
any Registration of the Mortgage-Deed.
Where a person in any of the following towns, namely – the town of

Calcutta, Madras and Bombay and in any other town which the State
Government concern, may delivers to a Creditor (i.e. Mortgagee), documents of
title of immovable property with intent to create a security thereon, such
transaction is called as “Mortgage by deposit of title deeds”.
6. ANOMALOUS MORTGAGE (SECTION 58(g)) –
Section 58 (g) explains about Anomalous Mortgage.
A Mortgage which is not a Simple mortgage, Mortgage by conditional sale,

Usufructuary Mortgage, English Mortgage, Mortgage by deposit of title deeds is
called as, “Anomalous Mortgage”.
14
NOTE NO.6

of the Author)
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Q. Discuss the RIGHTS & LIABILITIES of Mortgagor & Mortgagee.
OR
Define MORTGAGE. Explain the RIGHTS & LIABILITIES of Mortgagor &

Mortgagee.
A RIGHTS & LIABILITIES OF MORTGAGOR & MORTGAGEE-
* RIGHTS OF MORTGAGOR (SECTION 60 to 64 and 65-A) –
1. RIGHT OF REDEMPTION (SECTION 60) –
The Mortgagor has the Right of Redemption of the Mortgaged Property

after Payment of mortgaged money. He can take delivery of Possession of the
Mortgaged property and return of all the title deeds and other documents of the
property from the Mortgagee.
2. TRANSFER TO A THIRD PARTY (SECTION 60-A) –
The Mortgagor has the Right to direct the Mortgagee to transfer the
mortgaged property to a third party instead of transferring it to the Mortgagor
himself.
3. RIGHT OF INSPECTION OF PROPERTY (SECTION 60 –B)–
The Mortgagor is the natural owner of the property and he has Right to
Inspect the property and documents at any time as and when he desires. It is the
right to check out whether the mortgaged property is maintained properly or not.
In case of Documents, he can take copies from such documents.
4. RIGHT OF ACCESSION (SECTION 63) -
It should not be supposed that on transfer, due to mortgage, the right of

mortgagor extinguished with regard to the property so mortgaged. But the
mortgagor has right to access into the property at any time. This Right is called
as “Right of Accession”.
1
5. POWER TO MAKE LEASE (SECTION 65-A) –
The Mortgagor has the Power to make lease also, but it must be with the
consent of the Mortgagee. Such lease must satisfy the prescribed conditions.
6. REASONABLE WASTE OF PROPERTY (SECTION 66) –
The Mortgagor has the right to reasonable waste of the property, but he
must not make permanent injuries or destruction of the property to reduce its
value. If he does so, then he must give additional security to the mortgagee.
7. CLAIM TO IMPROVEMENT (SECTION 63 - A) –
The Mortgagor has the right to claim improvement made in the mortgaged
properties.
8. DEPOSITING MONEY IN COURT –
The Mortgagor has the right to deposit the mortgage-money in the Court,
if there is any Suit pending in the Court relating to the property.
 DUTIES OR LIABILITIES OF MORTGAGOR (SECTION 65 (c) (d) (e) and 66) –
1. INDEMNIFYING THE MORTGAGEE –
The Mortgagor must indemnify the mortgagee for any defective title to
the property. If any third person interferes, the mortgagor must compensate
the mortgagee for the expenses incurred by him (i.e. mortgagee) in
protecting the title.
2. COMPENSATING THE MORTGAGEE –
The Mortgagor must compensate the mortgagee for payment of all taxes
and public charges. Similarly, when the mortgagee is not in possession of the
mortgaged property, the mortgagor must pay all the taxes and public charges.
3. LEASE MONEY TO THE MORTGAGEE –
When the mortgaged property is Leased, the mortgagor must direct the
Rent payable under the lease, etc. to the mortgagee.
4. PAY ALL PRIOR ENCUMBRANCES-
If there may appears some of the prior encumbrance on the property

which might have not been disclose by the mortgagor at the time of mortgaging
the property, then it is a liability of the mortgagor to remove that prior
encumbrance over the property and should pay the charges of such
encumbrance.
2
 RIGHTS OF MORTGAGEE (SECTION 67 TO 73) –
1. At any time after the mortgage money has become due, the mortgagee
has the right to obtain from the Court, a Decree for Foreclosure (i.e. Sale
through Court Decree) (Section 67).
2. The Mortgagee can Sue for the mortgage money in the following Four
Cases (Section 68) –
a. When the mortgagor binds himself to repay the mortgaged money.
b. When the mortgagor’s property is wholly or partly destroyed by any cause

other than the wrongful act or default of the mortgagor.
c. When the mortgagee is deprived of the whole or part of his security.
d. When the mortgagee was entitled to possession of the mortgaged

property and the mortgagor has failed to deliver the property.
3. The Mortgagee has the power to sell the mortgaged property without the
Intervention of the Court, on default of payment mortgage money by the
mortgagor in the following three cases (Section 69) -
a. When the mortgage is English Mortgage.
b. When Government is the mortgagee, with the express provision of Sale

without intervention of the Court.
c. When the mortgaged property is situated at Calcutta, Madras, Bombay or

any other Government notified town or area.
4. The mortgagee has the right of accession to the mortgaged property

(Section 70).
5. The mortgagee has the right of accession to the increased properties for
renewal of security.
6. The mortgagee has the right for reimbursement with the interest for the
money spent for purposes like preservation of mortgaged property, etc.
 LIABILITIES/DUTIES OF MORTGAGEE (SECTION 76 AND 77) -
1. The Mortgagee is bound to manage property as a person of ordinary

prudence would manage if it were his own property.
2. It is possible that the same property might have been mortgaged more
than one occasion to more than one party i.e. mortgagee. In the event of
such of the simultaneous mortgage by the mortgagor then it is on the
3
mortgagee to file a suit in that behalf in the Court of Law to set the things
right.
3. After the returning the mortgage money to the mortgagee, it is the duty of
mortgagee to return the mortgage property to the mortgagor if it is in his
possession.
4. The Mortgagee is bound not to commit any act which is destructive or

permanently injurious to the property of the mortgagee if the mortgaged
property is in possession of the mortgagee.
5. The Mortgagee is bound to keep clear, full and accurate accounts of all
sums received as mortgaged money and give them to the mortgagor when
asked.
4
LEASE
Q. What is LEASE? What are the ESSENTIALS of valid lease? What are the
RIGHTS AND LIABILITIES of lesser and lessee?
A INTRODUCTION –
CHAPTER V containing Section 105 to 117 of the Transfer of Property Act,

1882 lay down the provisions relating to “LEASE OF IMMOVABLE PROPERTY”.
The word “Lease” literally means transfer of right to use or enjoyment of

an immovable property for a specific or indefinite period in consideration for
some benefit in cash, kind or in service paid or promised to be paid in lump sum
or periodically as per terms and the same is accepted.
In Lease, there is only transfer of Enjoyment or Possession of property and

not transfer of Ownership.
A lease is not a mere contract but is a transfer of an interest in immovable

property. The section recognises also a lease of immovable property in
consideration of share or crops that means the Rent may be either Money or
Share of Crops or Service or anything of value to be rendered periodically by the
transferee to the transferor. The Fundamental Conception of a lease is that it is
the Separation of the Right of Possession from Ownership.
A Minor cannot be a Lessee as he cannot perform the contractual

obligation put forth by the Lessor and any Contract with a Minor, is Void.
 DEFINITION OF “LEASE” (SECTION 105) -
“A lease of immovable property/ is a transfer/ of a right to enjoy

property,/ made for a certain time/ express or implied or in perpetuity,/ in
consideration of/ price paid or of money,/ a share of crops, service or any other
thing of value,/ to be rendered/ periodically/ or on specified occasions/ to the
transferor (i.e. lesser)/ by the transferee (i.e. lessee)/ who accepts/ the transfer
on such terms”.
 ILLUSTRATION-
Here, SUNIL is a landlord that means owner of Flat that means Lesser.
LOKESH is a tenant that means Lessee. The Lease Period is of 3 years, Rent is Rs.
10,000/- p.m.
* SOME IMPORTANT DEFINITIONS-
I. LESSOR - The transferor is called as “Lessor”.
II. LESSEE - The transferee is called as ‘Lessee”.

5
III. PREMIUM - The price is called as “Premium”.
VI RENT - The money, share in crops, services, any other

thing of value o be so rendered by the transferee (lessee) to the
transferor (lesser) is called as “Rent”.
 ESSENTIAL ELEMENTS OF VALID LEASE –
i. PARTIES TO LEASE –
There are two parties i.e. Lessor and Lessee. The “Landlord” is called as
“Lessor” and he is “Transferor” of the property.
“The Tenant” is called as “Lessee” and he is “Transferee” of the property.

Both of them must be Competent to Contract under the law.
ii. SUBJECT MATTER OF LEASE –
Subject-matter of lease must be of Immovable Property. Therefore,

Subject-matter includes Agricultural Land and Houses and Benefits arising out of
land such as standing trees, fisheries etc.
iii. PERIOD/ TERM OF LEASE –
According to Section 106, duration that is term of lease period shall be

determined by both the parties.
The Right to Enjoy Property must be for a Certain Period. A lease may also
be in perpetuity. FOR EXAMPLE - Agricultural Leases.
 TYPES/ KINDS OF LEASES –
a. Tenancy at Will
b. Tenancy by Sufferance.
c. Tenancy by holding over.
a. TENANCY AT WILL –
When the lease contains a Clause that the lessor or lessee may have Option
to terminate a lease, it is called “Tenancy at Will”.
b. TENANCY BY SUFFERANCE (SECTION 116(2)) -
When a person who is a tenant under a Valid Lease, continues in possession

even after the Expiry of the Period of Lease without the Consent of the lessor, it
is called “Tenancy by Sufferance”. The Landlord may terminate such Lease
without Notice or Demand.
6
A Tenant by Sufferance cannot claim the Right of Tenancy. A tenant by
sufferance pays only Compensation and not Rent for Use and Occupation.
c. TENANCY BY HOLDING OVER –
In tenancy by holding over, the tenant continues possession even after the
termination of tenancy but with the Consent of the landlord.
iv. CONSIDERATION –
The Consideration i.e. Premium + Rent as well as Rent alone. The ‘Price’ is
called as ‘Premium’.
The Money, Share in Crops, Service or any other thing of value to be

rendered called as ‘Rent’.
The Inclusion of Municipal taxes, water taxes, electrical charges etc. Rent
depends upon mutual agreement lessor and lessee.
Rent is paid periodically that is Monthly or Yearly. Usually, house rents

are paid monthly and agricultural rents paid by yearly.
HOW LEASES ARE MODE? (SECTION 107) –
A lease for immovable property from Year to Year for any term exceeding
1 year can be made only by Written and Registered i.e. LEASE DEED.
All other leases of immovable property i.e. Month to Month may be made
either by Written and Registered or by Oral Agreement by delivering
possession.
 RIGHTS AND LIABILITIES OF LESSOR
1. The Lessor is bound to disclose to the lessee all material defect in the
property with reference to use of property of which lessor is aware but
lessee is not aware. Lessee could not with the ordinary care discover the
defect.
2. The Lessor is bound to put the lessee in possession of the leased property.
The lessee however must request the lessor to put him in possession.
3. The Lessor must indemnify the lessee for all losses due to interruption in
the enjoyment of the property. It is an implied condition that the lessee
will have free and quiet enjoyment of the property.
4. If the lessor transfers the leased property, then the transferee gets all the
rights and liabilities of the lessor.
7
 RIGHTS AND LIABILITIES OF THE LESSEE –
The following are the Rights and Liabilities of the Lessee –
1. If part of property is destroyed by fire then the lease becomes void at the
option of the lessee. However, such destruction of the property must not
be due to wrongful act of the lessee.
2. If the lessor neglects to make sufficient repairs even after notice by the
lessee, the lessee can make such repairs himself and can deduct the
expenses of such repairs with interest from the Rent.
3. If the lessor neglects to make payment of Revenue, Tax, etc., then the
lessee can make such payment and deduct such payments from the Rent
with interest or recover the amount from the lessor with interest.
4. After the termination of the lease, the lessee can remove all the things,
which he had attached to the earth but he must leave the property in the
same state (i.e. condition) as he received it.
5. If the lease is terminated by some uncertain events, then the lessee or his
legal representatives can get all the crops harvested by them and to have
ingress (entry) and egress (exit) together with the produce and carry them.
6. The lessee not sub-lease or mortgage the whole or part of leased property
to anybody.
7. The lessee is bound to pay the Premium or the Rent to the lessor or to his
Agent as agreed upon, at the proper time or place.
------------------------------------------------------------------------------------------------------
Q. Define “Lease”. Discuss various Types/ Kinds/ Modes of Determination/

Termination of Lease.
A. INTRODUCTION –
CHAPTER V containing Section 105 to 117 of the Transfer of Property Act,

1882 lay down the provisions relating to “LEASE OF IMMOVABLE PROPERTY”.
The word “Lease” literally means transfer of right to use or enjoyment of

an immovable property for a specific or indefinite period in consideration for
some benefit in cash, kind or in service paid or promised to be paid in lump sum
or periodically as per terms and the same is accepted.
In Lease, there is only transfer of Enjoyment or Possession of property and

not transfer of Ownership.
8
A lease is not a mere contract but is a transfer of an interest in immovable
property. The section recognises also a lease of immovable property in
consideration of share or crops that means the Rent may be either Money or
Share of Crops or Service or anything of value to be rendered periodically by the
transferee to the transferor. The Fundamental Conception of a lease is that it is
the Separation of the Right of Possession from Ownership.
A Minor cannot be a Lessee as he cannot perform the contractual

obligation put forth by the Lessor and any Contract with a Minor, is Void.
 DEFINITION OF “LEASE” (SECTION 105) -
“A lease of immovable property/ is a transfer/ of a right to enjoy

property,/ made for a certain time/ express or implied or in perpetuity,/ in
consideration of/ price paid or of money,/ a share of crops, service or any other
thing of value,/ to be rendered/ periodically/ or on specified occasions/ to the
transferor (i.e. lesser)/ by the transferee (i.e. lessee)/ who accepts/ the transfer
on such terms”.
ILLUSTRATION-
Here, SURESH is a landlord that means owner of flat that means lesser.
LALIT is a tenant that means lessee. The lease period is of 3 years, Rent is Rs.
9,000/- p.m.
MODES/ TYPES/ KINDS OF DETERMINATION/ TERMINATION OF LEASE (SECTION

111) –
A lease of immovable property TERMINATED/ DETERMINS in the

following methods –
a. BY EFFLUX/ EXPIRY OF TIME –
if the Lease Deed prescribes a Time Limit, then after the Expiry of such
period, the lease comes to an end. At any time after this period the lessee can
demand the return of money from the lessor. If there is a Condition for
Renewal, the lessee may claim enforcement of such Condition.
Since a lease is for a definite period and since it expires by Efflux of Time,
the Service of Notice under Section 106 is not necessary for termination of
lease.
b. BY HAPPENING OF AN EVENT –
if the term of lease depends upon the happening of a Specified Event, the
lease terminates when that Event happens.
9
FOR EXAMPLE –
A Lease for Life of the Lessee gets terminated on the death of the Lessee.
c. BY TERMINATION OF LESSOR’S INTEREST -
if the lease depends upon the lessor’s limited interest, then when such an
interest gets over, the lease is also terminated.
In other words, lease is effective so long as the lessor is having interest/

right/ authority over the property. When his authority/ interest over it, is
terminated, the lease also stands terminated automatically.
FOR EXAMPLE –
A lease granted by a Mortgagee in possession, gets terminated on

redemption of mortgage by the mortgagee.
d. TERMINATION BY NOTICE – NOTICE TO QUIT LEASE –
The lease can be terminated by giving a Valid Notice by the lessor to the
lessee
e TENANCY AT WILL –
“Tenancy at Will” means that the tenant holds the land in possession and
the lease terminates at any time at the Will and Pleasure of either the landlord
or tenant.
f CONDITIONAL LEASE –
When the termination of lease is based upon a Condition of happening of

some event, the lease gets terminated after such happening of event.
FOR EXAMPLE –
If Five Harvests is a Condition, then on the Completion of the Five Harvest,

the lease is terminated.
g FORFEITURE –
When the lessee or tenant breaches the express condition of lease, the
lessor gets the Right of Re-entry in the property. Such Re-entry terminates the
lease.
 Forfeiture can be brought about by the following –
i. Breach of condition to pay Rent.
ii. Breach of condition not to Sub-lease.
10
iii. Breach of any other condition.
iv. The Lessee denying the lessor’s title.
v. Insolvency of tenant.
h. BY MERGER –
“Merger” means Uniting together. Whether the rights/ interests of both

lessor and lessee are vested in the same person, it amounts to merger. Merger
terminates lease since the same person cannot be both lessor and lessee.
Merger takes place –
i. By act of parties.
ii. By operation of law.
i. BY ACT OF PARTIES –
The tenant may become the owner by buying the leased property. After
buying the property, he is no longer a tenant.
Similarly, when two properties merged into one, then also there is Merger.
The Principle is that there must be Union of the entire interest of the lessor and
lessee.
ii. BY OPERATION OF LAW –
The Court may declare that the lessee is the actual owner. The Court’s Order
terminates the lease.
i. BY EXPRESS SURRENDER –
Lessee, with the consent of lessor may surrender his interest in lease to
the lessor. Such surrender to lessor by lessee terminates the lease.
In other words, if the lessee surrenders the lease property before the
Expiry of lease period by mutual consent, the lease is terminated.
e. BY IMPLIED SURRENDER –
Surrender of leasehold property may be inferred from the act of parties.

When a lessee accepts from his lessor, a new lease of the lease property during
the continuance of existing lease, it is an implied surrender of the former lease,
which amounts to termination.
11
NOTE NO. 7

of the Author)
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Q. What is an Exchange? How it is effective? Distinguish between Sale and

Exchange.
A. INTRODUCTION -
Chapter VI containing Section 118 to 121 of T.P.Act explains the provisions

about the 'Exchange of properties'.
In the common man’s language, Exchange means a transfer of a thing for

another thing. Both the things or either of the things may be a Movable or an
Immovable Property.
The Subject matter of Exchange is both Immovable and Movable. In other

words, Exchange under Section 118 is not limited or confined to immovable
property, but it also extends to barter of goods.
In other words, like Sale, Exchange is transfer of ABSOLUTE INTEREST in

property, immovable or movable, by which ownership is passed from one
person to another. The main difference between Sale and Exchange is the
Nature of Consideration for the transfer. In Sale, the Consideration is PRICE,
whereas in case of Exchange, the Consideration is PROPERTY in exchange for
some other PROPERTY.
FOR EXAMPLE –
RANJAN transfers his property BUNGLOW worth Rs. 50 lacks to PRASAD.

PRASAD in return of this property transfers his CAR worth Rs. 45 lacs and also
gives Rs. 5 lacs in cash to RANJAN. This is a case of Exchange.
Definition of 'Exchange' (Section 118)
"Where two persons/ mutually transfer/ the ownership/ of one thing/ for
the ownership/ of another/ neither thing or both thing being money only/, the
transaction is called as an, "Exchange".
A transfer of property in completion of an exchange can be made only in a

manner provided for the transfer of such property by SALE.
1
IMPORTANT POINTS REGARDING EXCHANGE -
The Essential Characteristics of every transaction of an exchange is that it

must be a transfer of a thing in exchange of the other thing and both or either of
this things may an exchange of A's plot for B's bungalow or X's furniture for Y's
land. Similarly, there may be transfer of movable property to movable property
also. But, there cannot be an exchange of M's house for N's Rs. 50 Lakhs, such
transaction will simply called as, "Sale".
In all the cases, an exchange involves transfer of property but this transfer
must be in consideration of another movable or immovable property.
It is therefore clears that, "where two persons mutually transfers the

ownership for the ownership of things, transaction is known as an, "Exchange".
If the real owner of the property, exchange the property and obtained
another property in the name of his wife, whether the property so received was
in the name of husband or wife made no difference for the purpose of Section
118 and it must be held that it is a Deed of Exchange.
 RULES OF “EXCHANGE” –
 RIGHT OF PARTY DEPRIVED OF EXCHANGE THING (SECTION 119) –
If any party to an Exchange due to any defect in the title of the other party is
deprived of the thing received in exchange, then the other party is liable to
Compensate the loss caused to the first party.
This is done by Return of the Exchanged thing to the Original Owner.
 RIGHTS AND LIABILITIES OF PARTIES TO EXCHANGE (SECTION 120) –
The Rights and Liabilities of each party to the Exchange is that of Seller and
Buyer for the thing Exchanged. Hence, all Essentials of Sale must be fulfilled for
Exchange.
 EXCHANGE OF MONEY (SECTION 121) –
On an Exchange of Money, each party thereby Warrants the genuineness of

the Money given by him. ‘X’ gives a Currency Note of Rs. 500/- to ‘Y’ and ‘Y’ in
Exchange gives Rs. 500/- in Coins to ‘X’. Both Guarantee the Genuineness of
their Currency (Rupee Note and Coins).
Exchange how effected?
The Mode of transfer in 'Exchange' is the same as in case of ‘Sale’.
Thus, where both the properties are movable, the delivery of things will
affect an exchange.
2
But, if both properties are immovable, a Written and Registered,
"Exchange Deed" is to be executed if value of such properties are more than
Rs.100/-.
Distinguish between Sale and Exchange
1. Sale is explains in Section 54 to 57.
Exchange is explain in Section 118 to 121.
2. In Sale, there is one thing for the ownership transfer from one person
to another. The buyer pays money/price and gets the ownership of
the immovable property. The seller takes the money and gives
ownership of property.
In Exchange, there is no price paid by money here, one property

is exchanged with another property.
3. Example in sale- Aditya sales house for Rs.15 lakhs to Pratap who pays
money/price, it is a sale.
Example in Exchange- Bhushan exchange his land for the

bunglows of Rajendra, it is an exchange.
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Q. Explain the essentials of “GIFT”. How Gift is effected? Discuss the grounds
of revocation of Gift.
OR
Define “GIFT”. Explain the essentials of Valid Gift.
OR
Define “GIFT”. Discuss the Grounds of “Revocation of Gift”
A INTRODUCTION & MEANING OF “GIFT” –
CHAPTER VII containing Sections 122 to 129 lays down the provisions
relating to “GIFT OF PROPERTY” OR “GIFTS BETWEEN LIVING PERSONS” (Gift
inter vivos).
GIFT is the transfer of certain Existing Movable or Immovable Property

made Voluntarily and without Consideration by a Person called “the Donor” and
accepted by or on behalf of the person called “the Donee”.
3
There are two kinds of Gifts –
i. Gift inter vivos is a gift between living persons which is dealt with
Section 122 of the Transfer of Property Act, 1882.
ii. Gift Testamentary i.e. Testamentary Gift, otherwise called as “Will”

is a Gift operating after the death of the Testator and this type of
Gift is outside the scope of the Transfer of Property Act, 1882.
It refers to both Immovable and Movable properties. In other words, the

subject-matter is transfer of absolute interest in the property, immovable or
movable. The notable point is, there is NO CONSIDERATION for the transfer and
the gift of a property is not valid and enforceable unless it is accepted by the
donee (i.e. transferee). Gift by Will is not included in T.P. Act but explained in
Indian Succession Act, 1925.
A Gift is a transfer which does not contain CONSIDERATION in any Shape

or Form. Love, Affection and many other factors may be the intention of the
donor to make gift.
When a person transfers some property, movable or immovable to

another voluntarily without consideration and the same is accepted, it is called
as “GIFT”.
It is a voluntary transfer of an Absolute Interest in the property, movable

or immovable, without any consideration to another and the same is accepted
by the latter.
DEFINITION OF “GIFT” (SECTION 122)–
Gift is the transfer/ of certain existing/ movable or immovable property/

made voluntarily/ and without consideration/ by one person called the DONAR/
to another called the DONEE /and accepted by or on behalf of Donee”.
If donee is minor then on behalf of donee, guardian has a right to accept

such property.
The person who transfers the property is called as “DONOR” and the
person to whom it is transferred is called as “DONEE”. It is very essential that
the acceptance of the gift shall take place during the lifetime of the donee.
Otherwise, it becomes void.
ACCEPTANCE WHEN TO BE MADE? –
Such Acceptance must be made during the lifetime of the donee. If the
donee dies before acceptance then the gift becomes Void.
4
ESSENTIALS OF VALID GIFT –
1. TRANSFER OF AN EXISTING PROPERTY (Section 124) –
To constitute gift, there must be a transfer of certain property, which is in

existence at the time of making the gift. There must be a condition precedent to
gift.
The Subject-matter of a gift must be Certain, Existing Movable and

Immovable Property. It must not be future property that means it must be in
existence at the time of gift transaction. FOR EXAMPLE - Land, bunglow, any
goods, fixed deposit, shares etc.
2. VOLUNTARY AND WITHOUT CONSIDERATION –
The Most Essential Ingredients of Gift is that the transfer must be made
without Consideration. It is no gift if there is any consideration. Natural Love
and Affection is the consideration.
While the expression “Voluntarily” signifies Free Consent i.e. Consents

given to make gift without using Coercion, Undue Influence, Fraud,
Misrepresentation etc. The gift must be made voluntarily i.e. with Free Will and
Consent of the donor.
3. DONOR AND DONEE –
DONOR -
Section 122 explains that, Gift is a transfer of property made voluntarily

and without consideration by one person called as “DONOR”.
Thus, Donor is a person who gives/ transfers his property on gift to

another. The donor must possess some movable or immovable property.
The Minor cannot make a gift.
DONEE –
Donee is the person who accepts the gift. Donee must be having the
capacity to accept the gift.
Gift made to Minor are valid. The phrase is made in Section 122 “accepted
by or on behalf of donee” shows that Guardian of the Minor can accept the gift
on behalf of the minor but donee must alive at the time of gift.
5
4. GIFT MUST BE TO THE LIVING PERSON –
The donee must be in a position to express his acceptance –
a. a gift of property to Idol, is not valid.
b. a gift to ‘God/ Almighty’ is not valid and it cannot be registered but

a trust on behalf of God can validly accept the gift and can be
registered.
c. a gift to ‘Dharmashala’ is not valid but a gift to trustee of

dharmashala, is Valid.
d. a ‘Class gift’ i.e. gift to two or more persons is valid. Where, a gift is
made to several donees and one of them does not accept the gift
then the gift is valid for the remaining donees except the donee
who does not accept (Section 125)
5. REGISTRATION AND ATTESTATION (Section 123) –
If the subject-matter of gift is an immovable property, the transfer must be

made by a Registered Instrument i.e. Gift Deed duly attested by two witnesses.
 GIFT HOW MADE AND EFFECTED (SECTION 123) –
Section 123 explains about the Mode of transfer of subject-matter of the

gift.
Subject-matter is of two kinds i.e. Movable and Immovable.
For the purpose of making a gift of Movable Property, the transfer may be
affected either by a Registered Instrument or by delivering that means
Registration is not compulsory.
For the purpose of making a gift of Immovable Property, the transfer must
be affected only by Written and Registered Instrument i.e. GIFT DEED.
 SUSPENSION AND REVOCATION OF GIFT (SECTION 126) -
Section 126 of the T.P. Act provides about “Suspension and Revocation of
Gift”.
The General Rule is – Gift once completed, cannot be Suspended or

Revoked. However, Section 126 of T.P. Act provides for the Revocation of Gift
under the following two circumstances –
1. If there is an agreement between Donor and Donee to that

effect.
6
2. In such a case if it were a contract voidable at the option of
donor if gift is made by employing coercion, fraud etc.
 Gift are divided into two types namely –
i. RESUMABLE GIFT i.e. REVOCABLE GIFT –
A Resumable Gift is not a Valid Gift. Resumable Gift means a gift which is
revocable at any time at the mere Will and Pleasure of the donor without any
reason or condition. Such revocation is not Valid.
ii. CONDITIONAL GIFT –
Conditional Gift is Valid. A Condition Subsequent may be attached to a

gift, on the happening of which the gift will get terminated. If the Condition
Subsequent does not happen then the gift is Valid.
The following Conditions are not Valid –
1. Any Condition which is Vague, is Invalid.
2. Any Condition which is not possible of performance.
3. Any Condition which is Illegal.
4. Any Condition which is Immoral.
5. Any Condition which is Opposed to Public Policy
The Condition may be Condition Precedent or Condition Subsequent but

must be Valid. If there is a Condition Precedent, then if should be fulfilled for
the gift to take effect.
 VOID GIFTS (SECTION 6, 122, 124 TO 127) –
The following gifts are declare Void –
a. Gift made for an Unlawful Purpose.
b. Gift subject to Condition and the fulfilment of which is

Impossible.
c. If Donee dies before acceptance, it becomes Void.
d. Gift by a person Incompetent to Contract i.e. Minor,

Unsoundmind Person, is Void.
7
2. ONEROUS GIFT (SECTION 127) (qui sentit commondum sentire debet
et onus) –
Section 127 deals with “Onerous Gift”.
Where a gift is in the form of a single transfer to the same person of

Several Things of which One is and the Others are not burdened by an
Obligation, the donee can take nothing by the gift unless he accepts if fully.
FOR EXAMPLE –
Aditya makes Gift of a Bunglow and Agriculture Land to Pratap. The

Bunglow is under Mortgage (i.e. Loan) of Rs. 2 Lakhs. However, Pratap must
accept the full Gift and he cannot accept the Agriculture Land ALONE.
The Onerous Gift is based on the Maxim – “qui sentit commondum sentire
debet et onus” i. means “he who receives Advantage must bear the Burden
also”.
Where a gift is in the form of two or more separate and independent

transfers to the same person of several things, the donee is at liberty to accept
one of them and refuse the others, although the former may be beneficial and
the latter onerous.
3. UNIVERSAL DONEE (SECTION 128) –
Section 128 speaks about “Universal Donee”.
If a Gift consists of the Donor’s Whole Property, the done is personally

liable to pay of all the Debts and Liabilities of the donor existing as the time of
making the gift. But the liability cannot exceed the Value of the property
received under the gift.
In other words, a Universal Donee is one whom all the properties of donor
have been given and is liable for all the debts and liabilities of the donor at the
time of the gift.
The property comprises of must be both movable and immovable.
4. DONATIO MORTIS CAUSA (DEATH BED GIFT) –
Such Gifts are Death Bed Gifts and are governed by Section 191 of the
Indian Succession Act, 1925.
When a gift is made by a donor, when he is in critical condition, likely to

cause his death, it is called “Donatio Mortis Causa”. It means donation made
out of death and hence it is called “Death Bed Gift”.
8
Transfer of Property Act, 1882 deals with this concept in respect of
Immovable Property only and Section 191 of Indian Succession Act, 1925 deals
with this concept with regard to the Movable Property.
It is to be noted that Death Bed Gift is valid only when the donor dies. It
has no effect before the death of donor.
9
NOTE NO.8

of the Author)
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THE INDIAN EASEMENT ACT,1882

Q. Define Easement. Explain the essentials of Easement. How Easement is
created.
A. INTRODUCTION-
Easement generally means a Right which the Owner or Occupier of certain

land possesses upon the land of Another person.
FOR EXAMPLE –
i. Right to take water from well.
ii. Right to air.
iii. Right to way.
iv. Right to light etc.
These are Easemental Rights and such rights are given to the property to
make the enjoyment of that property in more beneficial manner.
Definition of "Easement" (Section 4)
"An Easement is/ a right/ which/the owner or occupier/ of certain land/

possess /as such/ for the beneficial enjoyment/ of that property”
In such beneficial enjoyment, he may do and continue to do something or

he may also prevent and continue to prevent something done in respect of any
other land (not his own).
The neighbouring owner, through Easement Right, enjoy some limited

Rights in another man’s property.
 CHARACTERISTICS/ FEATURES OF EASEMENT -
1. APPURTENANCE –
Appurtenance means the Right of Owner to possess the property and

enjoy it.
Sai Law Academy INDIAN EASEMENT ACT, 1882 ©ALL RIGHTS RESERVED
1
2. RIGHT IN RE-ALIENA –
An Easement is a Right in re-aliena.
Right in re-aliena is the right over the property of another person. It

differs from a right in re-properia, which is the right over one’s own property.
The person having the Right of Easement is called as “Dominant Owner”

and the property is “Dominant Property”.
The person who allows such Easementary right is called “Servient Owner”
and the property is called as “Servient Property”.
3. BENEFICIAL TO THE DOMINANT PROPERTY –
The Easementary Right is authorized for the beneficial enjoyment of the

dominant property.
 DEFINITION OF DOMINANT AND SERVIENT HERITAGE –
 Dominant Heritage-
The land for the beneficial enjoyment of which the right is exist is called
as, "Dominant Heritage" and the Owner and Occupier thereof is called as,
"Dominant Owner".
 Servient Heritage –
The land on which the liability is imposed is called as, "Servient Heritage"
and the Owner and the Occupier thereof is called as, "Servient Owner".
The term “Land” includes all things permanently attached to the earth
also.
The term “Beneficial Enjoyment” includes all possible convenience,

advantage and facility.
 RIGHTS OF DOMINANT OWNER –
The Easement Right should entitle the Dominant Owner to do and

continue to do, or to prevent and continue to prevent, something in or upon or in
respect of the Servient tenement.
 EXAMPLE OF EASEMENT –
1. Sandesh, the Owner of Certain Agriculture Land has right to take Water
from Mohit’s Well to supply his (Sandesh) Agriculture Land, this is an
Easement.
2
2. Nikhil, the Owner of a house has the right to take the leaves which have
fallen from the trees on Rakesh’s land for the purpose of grazing Nikhil’s
Cattle, this is an Easement.
-------------------------------------------------------------------------------------------------------------
 TYPES OF EASEMENTS (SECTION 5 TO 7) –
There are following TYPES OF EASEMENT –
1. POSITIVE AND NEGATIVE EASEMENT –
Positive Easement enables the dominant owner to commit some positive act
upon the servient property.
FOR EXAMPLE –
Right of Walking, Right of Placing Advertisement Board, etc.
Negative Easement enables the dominant owner to prevent the Servient

Owner from doing certain acts.
FOR EXAMPLE –
Preventing the Servient Owner from Construction of a building to stop the

supply of air, to construct wall which close the way, etc.
2. CONTINUOUS AND DISCONTINUOUS EASEMENT (SECTION 5) –
Continuous Easement is effected without any intervention of the act of a

man.
FOR EXAMPLE –
The right to receive continuous sunlight, continuous flow of water, etc,

are all Continuous Easement.
A right annexed to Amol’s house to receive Light by the windows without

obstruction by his neighbour Soham, this is a Continuous Easement.
Discontinuous Easement is effected only by the intervention of the act of a

man.
FOR EXAMPLE –
Right to walk over the Servient Land, is Discontinuous Easement.
A right of way annexed to Ashish’s house over Surendra’s land, this is a

Discontinuous Easement.
3
3. EASEMENT FOR A LIMITED TIME (SECTION 6) -
An Easement may be Permanent or for particular period of years. It may also

be exercisable only at a certain time or certain hours. It may also be for
particular purpose.
4. CONDITIONAL EASEMENT (SECTION 6) –
An Easement may be subject to a condition that it shall commence or it shall

cease, on the happening or non-happening of a Specified Event. It also depend
on the performance of a specified act.
5. EASEMENT OF NECESSITY AND QUASI EASEMENT (SECTION 13) -
An Easement of Necessity is an easement created to meet the need of the

necessity of a particular case.
Quasi Easement are covenants which the Servient Owner must grant for the
benefit of the Dominant Owner. This is strictly not easement but termed as
Quasi Easment.
 Easement Rights can be created in variety of ways-
i. By Grant-
If there is a contract between the owners of two properties whereby the

owner of one property allowed (grant) the owner of another property to
exercise any right in respect of his property then the easement is created by
Grant.
ii. Easement of necessity-
An easement of necessity is an easement without which the property in

question cannot be enjoyed at all.
An easement of necessity arise when immovable property is transferred by

one person to another and the property cannot be use at all without exercising
common easement. It must have been a necessity existing at the time of
transfer.
iii. Easement by Quasi-necessity –
Quasi easements are those easements which not being easement of

absolute necessity.
4
iv. Easement by custom-
Easmental rights are also created even by Custom. An easement may be

acquired in virtue of a local custom. Such easements are called as, "Customary
Easement".
v. Easement by Prescription-
If the person exercises any right over the property of another for a period
of 20 years openly, peacefully and without any objection then on the expiry of
20 years period, such person will become entitled to exercise that right as
easement arising out of prescription.
If, it is a Government Property, then the period of exercising the right is 30

years.
 REMEDIES FOR DENIAL OF EASEMENT -
The Dominant Owner or Occupier is entitled to enjoy the easement

without disturbance by other persons. He can sue for Compensation if the
disturbance has actually caused substantial damage to him.
1. COMPENSATION (SECTION 34) -
If there is Substantial Damage to the dominant owner, then he can claim

Compensation from those who disturbed/ denied his easementary right.
In case of Removal of Support to which a dominant owner is entitled, only if

he sustains Substantial Damage, he is entitled to sue for Compensation.
2. INJUCTION TO RESTRAIN DISTURBANCE (SECTION 35)
An Injunction may be granted to restrain disturbance of an easement if the

easement is actually disturbed or disturbance is threatened or intended.
The Injunction is a Specific Relief. It may be Temporary or Permanent..
3. ABATEMENT OF OBSTRUCTION OF EASEMENT (SECTION 36) –
The dominant owner cannot himself Abate (remove) a wrongful obstruction

of an easement.
5
 EXTINCTION OF EASEMENT -
The Easemental Rights comes to an end under the following

Circumstances-
i. EXTINCTION BY DISSOLUTION OF RIGHT OF SERVIENT OWNER

(SECTION 37) -
Where before the creation of easemental right, some legal proceedings

were pending in the Court of Law against the servient owner and during the
easemental rights, such proceeding are decided against the owner of servient
heritage and his right comes to an end then the easemental right will also comes
to an end.
ii. EXTINCTION BY RELEASE (SECTION 38) –
The dominant heritage releases the easement, expressly or impliedly to the

servient owner.
iii. BY REVOCATION (SECTION 39) –
By exercise of power reserved in this behalf, servient heritage has a right

to revoke the easement at any times when he likes then the owner of servient
heritage can exercise this right and revoked the easement, then on such
revocation the easements comes to an end.
iv. BY EXPIRY OF TIME i.e. EASEMENT FOR LIMITED PERIOD (SECTION

40)
Many times the right of easement is created for a limited period, on the
expiry of the period, the easement comes to an end.
In other words, extinction takes place when the easement is created for a
limited period and the period expires.
v. ON TERMINATION OF NECESSITY (SECTION 41) –
Easement of necessity created by the necessity itself and if such necessity

comes to an end, the easemental rights also comes to an end.
In other words, the easement of necessity is extinguished when the

necessity comes to an end.
vi. USELESS EASEMENT (SECTION 42) –
Easemental right is created for more beneficial use of property. So when

the right of easement ceases to be beneficial to the property, the right comes to
an end.
6
vii. BY PERMANENT CHANGE IN DOMINANT OR SERVIENT HERITAGE
(SECTION 43) AND (SECTION 44) –
If there is a contract between the servient and dominant heritage's owner

regarding the use of some easemental rights and if afterwards any permanent
change takes place in Dominant Heritage, then the easemental right will comes
to an end (Section 43).
When the servient heritage is permanently altered in such a way that the
dominant owner can no longer enjoy the easement, such easement is
extinguished (Section 44).
viii. BY DESTRUCTION OF DOMINANT OR SERVIENT HERITAGE (SECTION

45) –
If by some Natural Calamity if the property of Servient Owner or Dominant

Owner is destroyed or damage then easemental right is extinguished
automatically.
ix. BY UNITY OF OWNERSHIP (SECTION 46) -
The right of easement requires that both the dominant and servient
heritage must be under the ownership of different persons. So if the dominant
owner purchases the property of servient owner then there will be Unity of
Ownership and thus right of easement comes to an end.
-------------------------------------------------------------------------------------------------------------
 SUSPENSION OF EASEMENT (SECTION 49) -
Suspension takes place when the owner of one heritage gets possession of
the other estate for a limited interest.
Here, there is only Unity of Possession and not Unity of Ownership.

Suspended Easement can be revived. Under the Indian Law, if suspension
continues for an Unbroken Period of 20 years, extinction of easement takes
place.
FOR EXAMPLE –
A Dominant Owner took on lease the Servient Heritage for more than 20
years. Since, there was Unity of Possession for over 20 years i.e., till the
expiration of the period of lease, the easement was extinguished after the
expiry of 20 years from suspension.
7
LICENCES
(SECTION 52 to 64)
Q. Define Licenses. Explain essential characteristics of License.
A. Definition of 'LICENSE' (SECTION 52) -
“License” is defined as -
"Where/ one person/ grants/ to another or to definite number of

persons/ a right/ to do or continue to do/ in or upon/ the immovable property/
of the grantor, this Right is called as “License”.
In the absence of such right, the same thing becomes Unlawful. Further,
such right does not amount to an Easement or an Interest/ in the property.
So, a license is a Privilege to do something in a property which is otherwise

not permissible.
 RULES RELATING TO LICENSE (SECTION 53 TO 59) –
1. A license may be granted by the Owner of the property.
2. The grant of a license may be Express or Implied from the conduct of

the grantor.
3. A license may be Oral also in the terms and conditions and may be
Written also.
4. All licenses necessary for the enjoyment of any exercise of any right,
are implied and are called as “Accessory Licence”.
FOR EXAMPLE –
Amit sells the trees growing on his land to Manoj. Manoj is licensed
to go into the land and take away the trees.
5. A license to attend a place of Public Entertainment may be transferred

by license.
6. The grantor of a license must disclose to the licensee, all defects in the
property to be dangerous to the licensee.
7. A license does not create an interest in the property.
8. License arises out of permission/grant and not otherwise.
9. It is a personal privilege, totally unconnected with the Ownership of

the property.
8
10.It does not create an interest in the property and also not create an
easement in the property in respect of which it is granted.
11.It is non-transferable and non-heritable.
12. If licensee for consideration is evicted by the grantor without any fault
of the licensee and before fully enjoying, the licensee can recover
compensation from the grantor.
-------------------------------------------------------------------------------------------------------------
 REVOCATION OF LICENSE (SECTION 60) -
License can be Revoked, expressly or impliedly by the grantor
The Revocation of a license may be Express or Implied.
FOR EXAMPLE –
Pradip grants a license to Umesh to graze his cattle in Pradip’s Land. If

Pradip sells his land to Vijay, the license is impliedly Revoked.
 DEEMED REVOCATION (SECTION 62) -
A license is ‘deemed’ to be revoked -
1. When the grantor ceases to have an interest in the licensed property.
2. When the licensee releases the license expressly or impliedly to the

grantor or his representative.
3. When license has been granted for a limited period and the period
expires.
4. When the license has been acquired on Condition that is shall becomes
Void on the performance or non performance of a specified act.
5. When the license property is destroyed or damaged that the licensee can
no longer exercise his right.
6. When the licensee become the absolute owner of the licensed property.
7. When the license granted for a Specific Purpose and the purpose is
attained or abandoned or becomes impracticable.
8. When the license is granted to hold a particular Office or Employment and

such Office or Employment ceases to exist.
9. When the license is not totally used for 20 years Continuously, without
any Specific Contract for the same.
9
 EFFECT OF REVOCATION (SECTION 63) -
When a license is revoked the licensee is entitled to any reasonable time to

leave the licensed property and to remove the goods on them.
10

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NOTE NO.

TRANSFER OF PROPERTY ACT,1882

"Immovable Property includes land and benefits arising out of land" –

The Transfer of Property Act, 1882 comprises of two parts namely –

1. General Principles (Section 1 to 53A) &

2. Specific Transfers (Section 54 to 137)

In a civilised society, transfer of property from one person to another is

1. When an immovable property is transferred from one living person

2. When a movable property i.e. goods is transferred from one living

 DEFINITIONS OF "IMMOVABLE PROPERTY" –

1. Section 3 of Transfer of Property Act, "Immovable Property" does not

The above definition as negatively defined under the T.P. Act. It

2. Section 3(k)(26) of the General Clauses Act, 1897 defines "Immovable

"Immovable Property shall include land, benefits arising out of land

This definition includes three things namely –

2. Benefits arising out of land and

3. Things attached to the earth.

"Things attached to earth" means –

a. things rooted in earth; for e.g. trees, shrubs etc.

c. things fastened for the permanent beneficial enjoyment of anything

"Immovable Property includes land , buildings, hereditary

This definition is a better than other definitions because it has covered

In simple words, "Immovable Property" means, 'land, benefits arise out of

 Whether the 'Trees' comes under the term "Immovable Property" ?

Trees so longs as rooted in the earth, they are immovable property, as

If the timber is used for making furniture it becomes movable property. If

 DISTINGUISH BETWEEN IMMOVABLE AND MOVABLE PROPERTY –

1. The movable property can easily be transported from one place to

The immovable property cannot be easily transported from one place

2. For example- Vehicles, books, furniture etc.

4. The Movable Property need not be registered under the Indian

Whenever the immovable property is transferred, it must be

5. Mere delivery with intention to transfer the movable property

Mere delivery does not sufficient for a valid a transfer. The

PLACE FOR YOUR NOTES

Define "Transfer of Property", which Properties/ interest are not

The term 'Transfer' means as process or an act by which something is

MEANING & DEFINITION OF "TRANSFER OF PROPERTY" –

In simple words, the "Transfer of Property" means "Passing of a right in

DEFINITION OF "TRANSFER OF PROPERTY" (SECTION 5) –

"Transfer of Property means/ an act/ by which/ a living person/ conveys/

In terms of the transfer of property Act, the concept of 'transfer' is used

Property of any kind may be transferred except as otherwise provided by

Transfer of Property, in simple sense is a transfer of ownership of the

 SOME IMPORTANT POINTS –

1. Section 5 explains about 'Transfer of Property', it also explains about

3. The transfer of property is concerned with inter vious that is between

If Pradip gives Ashok, a Flat as gift of property, that is an inter vivos

The property bequeathed under a Will cannot be a transfer inter

 WHAT KINDS OF PROPERTIES MAY BE TRANSFER? (SECTION 6) –

Section 6 explains that which properties may be transfer and which

The chance of an heir apparent succeeding to an estate,

The chance of a relation obtaining a legacy on the death of kinsman or

any other mere possibility of a like nature,

The expression 'Spes Succession' means 'mere chance or hope of

i. He has to Survive Ganga – Widow.

ii. The Widow Ganga should leave the property intact.

A mere right of re-entry for a breach of a condition subsequent, cannot be

The Right of Re-entry is available only to the Landlord or his Legal

This Right cannot be transferred from the estate to which is belongs.

An Easement can not be transferred apart from the dominant heritage.

An Easementary Right is the right available to a person to use another

The Easementary Right is acquired by Agreement, Custom etc. This

SECTION 6(d) – PERSONALLY RESTRICTED INTEREST –