DHRUVATHARE LAW ACADEMY, TUMKUR

2023 CJ QP
1. Which of the following mortgage does not require registration?
A) Equitable mortgage
B) Anomalous mortgage
C) Usufructuary mortgage
D) Mortgage by conditional sale
An Equitable Mortgage does not require registration because it involves the deposit of
title deeds with the intent to create a security for a loan, rather than a formal written
document that requires registration under the Transfer of Property Act, 1882 .
Here's why the other options require registration:
 Anomalous Mortgage:
This is a mortgage that does not fall under any of the other established categories. By
definition, it is a variation of other forms of mortgages and would typically need to be in
writing and, therefore, registered to be valid in certain situations.
 Usufructuary Mortgage:
In a usufructuary mortgage, the possession of the property is transferred to the lender, and
the lender receives the rent or profits from the property. Any document that transfers
rights in immovable property, including possession, generally requires registration.
 Mortgage by Conditional Sale:
This is a type of mortgage where the property is absolutely transferred to the mortgagee,
with a condition that it will be re-transferred to the mortgagor upon payment of the
debt. Such a transfer of property requires registration.

2. As per Section 122 of the Transfer of Property Act, 1882, if the donee dies before the
acceptance of the gift, the said gift is.
A) valid.
B) void.
C) voidable.
D) illegal.
As per Section 122 of the Transfer of Property Act, 1882, if the donee dies before the
acceptance of the gift, the gift is void. Acceptance must be made during the lifetime of
both the donor and the donee for the gift to be valid.
Explanation:
 Nature of a Gift:
A gift is a voluntary transfer of property made without consideration, and it requires
acceptance by the donee.
 Acceptance is Crucial:
The law requires acceptance of the gift by the donee. This acceptance signifies the
donee's agreement to receive the property.
 Void Transaction:

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If the donee dies before they can accept the gift, the act of transfer is incomplete because
the essential condition of acceptance is not fulfilled. Consequently, the gift fails and
becomes void.

3. The rule against perpetuity is provided in Section Transfer of Property Act, 1882.
A) 15
B) 14
C) 17
D) 16

The rule against perpetuity is provided in Section 14 of the Transfer of Property Act,
1882. This section prohibits property transfers that would create an interest taking effect
beyond the lifetime of living persons plus the minority of an ultimate beneficiary, thereby
preventing property from being tied up indefinitely.
Here's a breakdown:
 Section 14 of the Transfer of Property Act, 1882
codifies the rule against perpetuity.
 Purpose:
The rule ensures that property is not tied up indefinitely and remains transferable and
accessible for trade and commerce.
 How it works:
It restricts the creation of future interests that may not vest within a specific, reasonable
timeframe.
 The "Perpetuity Period":
The vesting of interest cannot be postponed beyond the "life of one or more persons
living at the date of such transfer" and the "minority of some person who shall be in
existence at the expiration of that period

4. "Once a mortgage, always a mortgage" means:

A) Mortgagee has no right to assign the mortgage debt to any other person
B) Mortgage can not be redeemed after the expiiy of fixed period
C) Mortgage is always redeemable
D) Mortgager has no right to assign right of redemption to any person

The phrase "Once a mortgage, always a mortgage" means that the fundamental nature of
a mortgage as a security for debt, which can be redeemed by the mortgagor, cannot be
permanently altered or extinguished by any subsequent agreement or condition within the
mortgage deed itself. This principle, also known as equity of redemption , ensures that a
mortgagor's right to regain their property by paying the debt is preserved and cannot be
unfairly blocked.

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2022 CJ QP

1. A let out his immovable property to B for manufacturing purpose. In the lease agreement,
both A and B agreed that said lease is terminable by one years’ notice. But, as per Section
106 of the Transfer of Property Act, 1882, lease for manufacturing purposes shall be
terminable by six months’ notice. A can terminate the lease of B by:
A) six months’ notice.
B) one years’ notice.
C) either A) or B)
D) none of the above.
A can terminate the lease by giving a six months' notice, as Section 106 of the Transfer of
Property Act, 1882, stipulates that leases for agricultural or manufacturing purposes are
terminable by six months' notice, overriding conflicting terms in the agreement. The Act's
provisions are mandatory and cannot be waived by contract, thus the lease is deemed to
be a year-to-year lease by law, subject to the statutory notice period for termination.
Explanation
 Statutory Law Overrides Contract:
Section 106 of the Transfer of Property Act, 1882, defines the notice period for leases in
the absence of a written contract or usage to the contrary. For agricultural or
manufacturing purposes, the law mandates a six-month notice.
 Mandatory Provision:
The wording in Section 106 is a mandatory provision of law, meaning it must be
followed. The parties' agreement to a one-year notice period is superseded by this
statutory requirement.
 Presumption of Year-to-Year Lease:
For leases for manufacturing purposes, Section 106 presumes the lease to be a year-to-
year lease unless a written agreement specifies a different duration and is properly
registered.
 Conclusion:
Therefore, even though the lease agreement states a one-year notice period, the legal
requirement under Section 106 prevails, allowing for termination with six months'
notice.

2. What among the following is not required for valid Gift under the Transfer of Property
Act, 1882?
A) consideration
B) donor and donee.
C) movable or immovable property
D) transfer and acceptance

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3. Section 10 of the Transfer of Property Act, 1882 deals with following subject:
A) Condition restraining alienation.
B) Persons competent to transfer.
C) Rule against perpetuity.
D) Vested interest.

4. When two persons mutually transfer the ownership of one thing for the ownership of
another, neither thing or both things being money only, the transaction is called:
A) lease B) sale C) gift D) an exchange

5. “A lease of immovable property from year to year, or for any term exceeding one year or
reserving a yearly rent, shall be made only by a unregistered instrument” As per the
Transfer of Property Act, 1882 above statement is:
A) incorrect B) correct C) either A) or B) D) none of the above.

QP 2021
1. "Once a mortgage, always a mortgage" means:
A) Mortgagee has no right to assign the mortgage debt to any other person.
B) Mortgage can not be redeemed after the expiry of fixed period
C) Mortgage is always redeemable.
D) Mortgager has no right to• assign right of redemption to any person.
2. The expression "died intestate" means:
A. died by making a Will
B. died without legal heirs.
C. died without any property
D. died without making a Will
3. Which one of the following is incorrect combination as per the Transfer of Property
Act, 1882?
a. Sec.41- Transfer by obstensible owner.
b. Sec.53- Fraudulent transfer.
c. Sec.100- Charges.
d. Sec.52A- Part Performance
4. Which section of the Transfer of Property Act 1882 deals with "Rule against
Perpetuity"
a. Section 14.
b. Section 15.
c. Section 16.
d. Section 17.

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5. A residential premises, within the limits of Mangalore Municipal Corporation, was let
out to a tenant on monthly rent of Rs.4,000/-. To evict the tenant from said premises,
which Act is applicable?
a. The Karnataka Rent Act, 1999.
b. The Transfer of Property Act 1882.
c. Both A and B
d. Either A or B

6. As per Sec.5 of the Karnataka Rent Act, 1999, in the event of death of a tenant, right of
tenancy shall devolve for a period of of the death of said tenant, to his successors.

a.one year.

b.three years.

c. five years.

d.seven years.

7. Under the Transfer of Property Act, 1882, a lessee of an immovable property continuing in
possession of the leased property on determination of lease period, with the consent of the lessor,
is called as

a. tenant by holding over.

b. tenant at sufferance.

c.Protected tenant.

d. None of the above.

8. A' leased out his immovable property to 'B' for manufacturing the spare parts of tractor. In the
abense of any contract or local law or usage to the contrary, said lease is terminable by
giving……………… notice.

a. 15 days

b. 30 days.

c. six months.

d. one year

9. A mortgage by deposit of title deed is called

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a. Anomolous mortgage.

b. English mortgage.

c. Usefractuary mortgage

d. Equitable mortgage

10. As per Section 122 of the Transfer of Property Act, 1882, if the donee dies before the
acceptance of the gift, said gift is

a. Valid.

b. Illegal

c. Voidable.

d. Void

11. A gift comprising both existing and future property is:

a. Valid

b. Void.

c. Voidable

d. Void as to the latter

qp 2020

1. non-residential premises, with plinth area of 16 square meters used for commercial A
purpose, has been let out. Which Act is applicable to the said premises to evict the
tenant?
a. The Karnataka Rent Act, 1999.
b. The Transfer of Property Act, 1882.
c. Either-A or B.
d. Both A and B.

2. Spes succession means-

a. Lawful succession.
b. Assured inheritance.
c. Promised inheritance.
d. Expectation of succession.

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Spes successionis is a Latin legal phrase that refers to the possibility of inheriting
someone’s property after their death. It deals with the potential right of an heir
or relative to inherit property through a will or legal succession. According to
the Transfer of Property Act, this expectation does not grant any actual
ownership interest in the property and cannot be transferred.

3. In the absence of a contract or local law or usage to the contrary, a lease of immovable
property for agricultural purposes shall be deemed to be a lease
a. From year to year, terminable on the part of either the lessor or lessee by 6
months notice.
b. From month to month, terminable on the part of either lessor or lessee by 1 month
notice.
c. From month to month, terminable on the part of either lessor or lessee by 15 days
notice.
d. None of the above.

4. A' executed a gift deed in favour of 'B' in respect of an immovable property worth Rs.90/-
. The deed was duly attested but was not registered. 'B' in a suit, claimed title by virtue of
the above gift deed. Is his claim maintainable?
a. No, because gift deed is not registered.
b. Yes, gift deed is valid, since the value of the property is less than Rs.100/-
c. Gift deed is valid since the gift is a document which requres no consideration.
d. None of the above.

Introduction

 Section 122 to Section 129 contained in Chapter VII of Transfer of Property Act,
1882 deals with gifts.

 A gift is considered a gratuitous transfer as an existing property is transferred in

favour of another person without consideration.

Section 122 of the Transfer of Property Act, 1882

A gift is defined in Section 122 of the Act, which reads as follows:

 Gift is the transfer of certain existing moveable or immoveable property made

voluntarily and without consideration, by one person, called the donor, to another,
called the donee, and accepted by or on behalf of the donee.

 Acceptance when to be made – Such acceptance must be made during the lifetime of
the donor and while he is still capable of giving. If the donee dies before
acceptance, the gift is void.

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Essential Elements of a Valid Gift

1. Transfer of Ownership

 A gift involves transfer of ownership as in this the whole interest of the person in the
property is transferred in favour of another person.

 The person transferring the interest is known as the ‘donor’ and the person to
whom the interest is transferred is known as the ‘donee’.

 The donor must be competent to contract; he must be major as well as of sound

mind.

 The donee does not need to be competent to contract; a minor or a person of

unsound mind though disqualified from entering into a contract is capable of
receiving the property.

2. Existing Property

 As per Section 124 of this Act, the gifted property must be in existence at the time of
making the gift, although its conveyance may take place either in future or in
present.

 Both immovable and movable property may be gifted.

 A gift of a future property is Also, a gift comprising of both the existing and future
property is void as to the future property.

 An actionable claim is an existing property, and it can be gifted.

3. Transfer Without Consideration

 An essential feature of a gift is that it must be gratuitous.

 Ownership must be transferred without any consideration.

 The word ‘consideration’ has been defined in Section 2(d) of the Indian Contract
Act, 1872 (ICA) and is used in the same sense under the Transfer of Property Act,
1882.

 As per Section 2(d) of ICA, when, at the desire of the promisor, the promisee or any
other person has done or abstained from doing, or does or abstains from doing, or
promises to do or to abstain from doing, something, such act or abstinence or
promise is called a consideration for the promise.

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4. Voluntary Transfer with Free Consent

 The gift must be made by the donor voluntarily, that is with his free will and
consent.

 When the consent of the donor is not free that is the consent has been given due to
coercion or undue influence, then the gift will not be a valid gift.

o Section 15 and 16 of the Indian Contract Act, 1872 defines coercion and
undue influence respectively.

5. Acceptance of Gift

 Acceptance of the gift by the donee is necessary and the acceptance may
be expressed or implied.

 When the donee is a minor or of unsound mind, then the gift must be accepted on
his behalf by a competent person.

Mode of Transfer

 Section 123 lays down two modes for effecting a gift depending on the nature of
property.

Gift to Several Persons of Whom One does not Accept

 Gifts may be made to two or more persons

 For the validity of the gift, it is necessary that it must be accepted by all the donees.

 Section 125 provides that a gift of a thing to two or more donees, of whom one does
not accept it, is void as to the interest which he would have taken had he accepted.

Suspension or Revocation of Gifts

 As per Section 126 of this Act, a gift which under an agreement between the parties
is revocable wholly or partially at the mere will of the donor is void wholly or
partially as the case may be. It lays down two modes of revocation of gift which are
as follows:

o Revocation by Mutual Agreement:

 If the donor and the donee have agreed that on the happening of a
specified event (not depending upon the will of the donor), the gift
should be revoked or suspended.

o Revocation by Recission as in the Case of Contractors:

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 A gift will be revoked if it was not made with the free consent of the
donor.

 A gift may also be revoked in any of the cases in which if it were a

contract, it might be rescinded. As per Section 19 of Indian Contract
Act, 1872, a contract may be rescinded in case of coercion, undue
influence, fraud and misrepresentation.

o Provisions of Section 126 do not apply to an incomplete gift, such a gift can
be revoked at any time.

Kinds of Gifts

Void gifts may be divided into two types:

 Void Gifts

 Onerous Gifts

Void Gift

The following gifts are included in the category of void gifts:

 Gifts depending on unlawful purposes.

 Gifts made upon a condition, the fulfillment of which is impossible or forbidden by

law.

 Gifts by a person incompetent to contract.

 Where the donee of the gift dies before acceptance.

 A gift comprising of both the existing and future property is void as to the future
property.

Onerous Gifts

 A gift is said to be onerous when it is accompanied by a burden or obligation.

o This section is based on the maxim ‘qui sentit commodum sentire debetet
onus’ which means that he who receives advantage must also bear the
burden.

 Section 127 of this Act deals with the concept of Onerous Gifts. It states that:

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o Where a gift is in the form of a single transfer to the same person of several
things of which one is, and the others are not burdened by an obligation,
the donee can take nothing by the gift unless he accepts it fully.

o 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.

 Onerous Gift to Disqualified Person - A donee not competent to contract and accept
a property which, burdened by any obligation, is not bound by his acceptance. But
if, after becoming competent to contract and being aware of the obligation, he
retains the property given, he becomes so bound.

Universal Donee

 Section 128 deals with the concept of universal donee. It states that:

 Subject to the provisions of section 127, where a gift consists of the donor's whole
property, the donee is personally liable for all the debts and liabilities of the donor
at the time of the gift to the extent of the property comprised therein.

 Universal Donee is the person who gets the whole property (both movable and
immovable) of the donor under a gift.

Mortis Causa

 Section 129 deals with the Gifts which are made in contemplation of death and
known as donatis mortis causa. Such gifts are exempted from the operation of
chapter VII by virtue of Section 129.

 Another exemption is made in favour of gifts which are governed by Muslim

personal law.

5. Which of the following mortgage does not require registration?

a. Usufructuary mortgage.
b. Anomalous mortgage.
c. Equitable mortgage
d. Mortgage by conditional sale

6. 'A' entered into an agreement with 'B' to sell immovable property of the former for
consideration and 'B' was put in possession of the property. Both parties had signed the

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agreement. The agreement had not been registered under the Indian Registraton Act. In a
suit between the parties. 'B' claimed the benefit of Section 53A of the Transfer of
Property Act, 1882. Whether his claim is maintainable?
a. Yes, it is maintainable.
b. No, it is not maintainable since the agreement was not registered.
c. No, since the sale deed was not executed.
d. None of the above.

B's claim is not maintainable because the agreement was not registered, which is a
mandatory requirement for claiming the benefit of Section 53A of the Transfer of Property
Act, 1882, as established by amendments to the Registration Act. The benefit of part
performance under Section 53A requires a written, signed agreement that is registered,
and without registration, the agreement has no effect for the purposes of Section 53A.

Explanation

 Registration Act Amendment:

The Registration and Other Related Laws (Amendment) Act, 2001, introduced a crucial
change making it mandatory for agreements for the sale of immovable property to be
registered to be considered under Section 53A.

 Mandatory Registration:

An agreement to sell immovable property, when executed on or after September 24, 2001,
must be registered to have any effect for the purposes of Section 53A.

 Consequences of Non-Registration:

If the agreement is not registered, it is not valid for the purpose of claiming the benefit of
part performance under Section 53A.

 Requirements for Part Performance:

While the case states B was put in possession, which are requirements for part
performance, the lack of registration means the contract cannot be enforced under Section
53A.

Introduction

The Doctrine of Part Performance is a significant aspect of property law under the
Transfer of Property Act, 1882 (TPA) which allows for the recognition of partially
performed agreements even if they do not meet the formal requirements stipulated by the
Act.

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What is the Concept of Doctrine of Part Performance?

 The Doctrine of Part Performance is embodied in Section 53A of TPA.

 This section protects transferees who have taken possession of the property or made
improvements based on an oral agreement or an agreement not registered as
required by law.

What are Elements of Doctrine of Part Performance?

 Existence of an Agreement:

o There must be a valid agreement between the parties for the transfer of
property, even if it is not in writing or registered.

 Payment of Consideration:

o The transferee must have paid or agreed to pay the consideration, either
fully or in part, as per the terms of the agreement.

 Taking Possession or Making Improvements:

o The transferee must have taken possession of the property or performed

substantial acts of improvement on it based on the agreement.

What is a Landmark Case on Doctrine of Part Performance?

 Saradamani Kandappan v. S. Rajalakshmi (2011):

o In the landmark case, the Supreme Court reaffirmed the principles of the
Doctrine of Part Performance as enshrined in Section 53A of the TPA, 1882.

o The case involved an oral agreement for the sale of immovable property
between the parties.

o The SC held that the transferee was entitled to the protection afforded by
Section 53A of the TPA, 1882 despite the informality of the agreement and its
non-registration.

o The Court emphasized the importance of equity and fairness in property

transactions and upheld the transferee's rights based on the principles of
part performance.

What are Application and Implications of Doctrine of Part Performance?

 The Doctrine of Part Performance has significant implications for property

transactions in India.

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 It provides protection to transferees who have acted in good faith and relied on
agreements, even if they do not meet the formal requirements of the law.

 This doctrine ensures that parties are not unfairly deprived of their rights due to
technicalities or formalities in agreements.

 Moreover, the Doctrine of Part Performance promotes certainty and stability in

property transactions by recognizing the practical realities of transactions where
parties have already taken steps towards performance based on their agreements.

Conclusion

The Doctrine of Part Performance, as enshrined in Section 53A of TPA plays an important
role in property law in India. It provides protection to transferees who have partially
performed agreements for the transfer of property, even if the agreements do not comply
with formal legal requirements.

7. One of the following is not the mode of transfer of property, as defined under the
Transfer of Property Act, 1882:
a. Sale.
b. Gift.
c. Exchange.
d. Will.

8. Whether a mortgagee under a simple mortgage can take possession of the mortgaged
property?
a. Yes.
b. No.
c. Only if court permits.
d. None of the above.

Introduction

Mortgage is defined by Section 58 (a) of the Transfer of Property Act, 1882 (TPA) as
a transfer of an interest in specific immoveable property for the purpose of securing the
payment of money advanced or to be advanced by way of loan, an existing or future debt,
or the performance of an engagement which may give rise to a pecuniary (monetary)
liability.

 The transferor is called a mortgagor, the transferee a mortgagee; the principal

money and interest of which payment is secured for the time being are called the

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mortgage-money, and the instrument (if any) by which the transfer is affected is
called a mortgage-deed.

Types of Mortgages

 Simple Mortgage:

o Section 58(b) of TPA defines simple mortgage.

o It states that where, without delivering possession of the mortgaged property,

the mortgagor binds himself personally to pay the mortgage-money, and
agrees, expressly or impliedly, that, in the event of his failing to pay
according to his contract, the mortgagee shall have a right to cause
the mortgaged property to be sold and the proceeds of sale to be applied, so
far as may be necessary, in payment of the mortgage-money, the transaction
is called a simple mortgage and the mortgagee a simple mortgagee.

o The essential elements of simple mortgage are:

 There is a personal undertaking by the mortgagor to repay the loan.

 Possession and enjoyment remain with the mortgagor.

 There is a power of sale but to be exercised only through Court.

 It must be affected by a registered instrument.

 There is no delivery of ownership or possession.

 There is no foreclosure.

o In the case of a simple mortgage, the mortgagee has two remedies:

 A personal undertaking to obtain a money decree against the

mortgagor.

 To sue on the mortgage and obtain a decree for the sale of the
property.

 Mortgage by Conditional Sale:

o Section 58(c) of TPA defines mortgage by conditional sale.

o It states that where the mortgagor ostensibly sells the mortgaged property on
condition that on default of payment of the mortgage-money on a certain
date the sale shall become absolute, or on condition that on such payment
being made the sale shall become void, or on condition that on such payment

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being made the buyer shall transfer the property to the seller, the transaction
is called a mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale.

o Provided that no such transaction shall be deemed to be a mortgage, unless

the condition is embodied in the document which affects or purports to affect
the sale.

o The essential elements of mortgage by conditional sale:

 There is an ostensible sale by the mortgagor to the mortgagee of the

mortgaged property.

 There is a condition that the sale shall be void if the loan is repaid on
a particular date. The property is then retransferred to the
mortgagor.

 The remedy of the mortgagee is by a suit for foreclosure.

 Registration is compulsory only if the consideration exceeds Rs. 500.

 There should be only one document.

o A transaction can be deemed to be a mortgage by conditional sale only when

the condition is embodied in the same document which purports to affect the
sale.

o In this form of mortgage, there is no personal liability on the part of the

mortgagor to pay the debt.

o The remedy of the mortgagee is by foreclosure only.

o In the case of Sunil K. Sarkar v. Aghor K. Basu (1989), it was held that
where separate documents of sale deed and reconveyance deed are executed
between the same parties in the same transaction and in respect of the same
property, the transaction could not be called a mortgage by conditional sale.

 Usufructuary Mortgage:

o Section 58(d) of TPA defines usufructuary mortgage.

o It states that where the mortgagor delivers possession or expressly or by

implication binds himself to deliver possession of the mortgaged property to
the mortgagee, and authorizes him to retain such possession until payment of
the mortgage-money, and to receive the rents and profits accruing from the
property or any part of such rents and profits and to appropriate the same in

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lieu of interest, or in payment of the mortgage-money, or partly in lieu of

interest or partly in payment of the mortgage-money, the transaction is
called an usufructuary mortgage and the mortgagee an usufructuary
mortgagee.

o There cannot be two different usufructuary mortgages on the same

property at the same time, as the possession can only be given to one only.

o In this type of mortgage, the mortgagee has the advantage to repay himself.

 English Mortgage:

o Section 58(e) of TPA defines English mortgage.

o It states that where the mortgagor binds himself to repay the mortgage-
money on a certain date, and transfers the mortgaged property absolutely to
the mortgagee, but subject to a proviso that he will re-transfer it to the
mortgagor upon payment of the mortgage-money as agreed, the transaction
is called an English mortgage.

o The word ‘absolutely’ emphasizes that the characteristics of a sale are more
pronounced in the case of an English mortgage, but it does not suggest that
there is absolute transfer in the nature of sale.

o The remedy for this type of mortgage is by sale and not by foreclosure.

o In this, the mortgagor ordinarily undertakes to pay the debt personally.

 Equitable Mortgage:

o Section 58(f) of TPA defines mortgage by deposit of title-deeds which is

popularly known as equitable mortgage.

o It states that where a person in any of the following towns, namely, the towns
of Calcutta, Madras and Bombay and in any other town which the State
Government concerned may, by notification in the Official Gazette, specify in
this behalf, delivers to a creditor or his agent documents of title to
immoveable property, with intent to create a security thereon, the
transaction is called a mortgage by deposit of title-deeds.

o The object of the Legislature in providing for this kind of mortgage is to

give facility to the mercantile communities in cases where it may be necessary
to raise money all of a sudden before an opportunity can be afforded of
preparing the mortgage deed.

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o The provisions which apply to a simple mortgage are also applicable to a

mortgage by deposit of title deeds.

o In both mortgages, no delivery of possession of property takes place.

o The mortgagee’s remedy is by a suit for sale, he can also sue for the mortgage
money.

 Anomalous Mortgage:

o Section 58(g) of TPA defines anomalous mortgage.

o It states that a mortgage which is not a simple mortgage, a mortgage by

conditional sale, an usufructuary mortgage, an English mortgage or a
mortgage by deposit of title-deeds within the meaning of Section 58 of TPA is
called an anomalous mortgage.

o The rights and liabilities of the parties to such a mortgage are to be

determined by their contract, as evidenced in the mortgage deed and failing
that, by local usage.

o In such a mortgage, the possession may or may not be delivered.

o The mortgagee’s remedy is by sale and also foreclosure, if the terms of the
mortgage permit it.

Qp 2019

1. A gift comprising both existing and future property is:

a. void
b. voidable
c. void as to the latter
d. Valid

QP FEB 2018

1. 'Sale under Section 54 of the Transfer of Property Act, 1882, is a transfer of ownership in
exchange for
a. a price paid only
b. a price promised only
c. a price partly paid and partly promised only
d. all the above

Definition of Sale

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Section 54 defines sale as a transfer of ownership in exchange for a price paid or promised or
part-paid and part-promised.

Registration of Sale

 As per Section 54, such transfer, in the case of tangible immoveable property of the value
of one hundred rupees and upwards, or in the case of a reversion or other intangible thing,
can be made only by a registered instrument.

 In the case of tangible immoveable property of a value less than one hundred rupees, such
transfer may be made either by a registered instrument or by delivery of the property.

 Delivery of tangible immoveable property takes place when the seller places the buyer, or
such person as he directs, in possession of the property.

Contract For Sale

 A contract for the sale of immoveable property is a contract that the sale of such
property shall take place on terms settled between the parties.

 It does not, of itself, create any interest in or charge on such property.

Distinction Between Sale and Contract for Sale

Sale Contract for Sale

 It is a transfer of ownership.  It is a mere agreement.

 It passes an absolute interest to the purchaser.  It does not create any such interest.

 It creates a right in rem.  It creates a right in personam.

 It must be evidenced by a registered document.  It need not be registered at all.

Key Differences:

Feature Right in Rem Right in Person

Scope Against the world at large Against a specific person

Object Thing (res) Person (obligated party)

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Transfer Generally transferable with the thing Generally not transferable

Enforcement Against anyone infringing the right Against the specific obligated party

Examples Property rights, patents, copyrights Contractual rights, debts, torts

In essence: Imagine someone owning a house (right in rem) versus having a loan to pay back
(right in personam). The house owner can prevent anyone from trespassing on their property
(right in rem), while the borrower is obliged to repay the loan to the specific lender (right in
personam).

Essentials of Valid Sale

 Parties to Sale: In a sale, there must be at least two parties. The person who transfers his /
her property is known as the transferor / seller / vendor and the person to whom the
property is transferred is known as the transferee / buyer / vendee.

 Competency: For a valid sale, both the buyer and seller have to be competent on the date
of the sale:

o The seller must have ownership of the property which he is going to sell.

o The seller must have legal title to it, only then can he sell the property.

o The seller must not be a minor.

o The seller must not be of an unsound mind.

o The seller must not be statutorily incompetent.

( Who is considered statutorily incompetent to contract?Under the Indian Contract

Act, 1872, the following categories of persons are deemed incompetent to
contract: Minors: Individuals who have not attained the age of majority. Persons
of Unsound Mind: Individuals who lack the mental capacity to understand the
nature and consequences of the contract they are entering into. Persons
disqualified by any other law: This includes individuals like an insolvent, who
is disqualified from contracting until discharged by a court of law. )

o The buyer must be competent to take the ownership of the property.

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o The buyer should not be disqualified from buying the immovable property by any
law in force at the time of the sale.

 Subject Matter of Sale: It specifically deals with the sale of immovable

property. Immovable property can be tangible or intangible.

o Tangible property is one that can be touched, such as a land, a house, a tree,
things attached to earth, etc., while intangible property refers to a property
that cannot be touched such as a right of ferry, a right to mortgage, a right of
fishery, etc.

 Price or Consideration: Price is an essential element of the sale. At the time of the
contract of a sale, a price must be ascertained at which the property is going to be
transferred.

o The price can be paid at the time of sale or before the sale in advance or after the
sale. At the same time, it can be paid in a lump sum or in part.

 Conveyance: Section 54 provides two modes for transfer of property –

o Delivery of possession

o Registration of sale deed

2. As per Section 123 of the Transfer of Property Act, 1882, a gift of immovable property
can be effected
a. by delivery of possession only
b. by an unregistered document only
c. even orally
d. by a registered instrument only

3. A lease of immoveable property from year to year or for any term exceeding one year or
reserving a yearly rent,
a. can be made only by an ordinary instrument only
b. by an unregistered instrument only
c. by a registered instrument only (under Section 107 of the Transfer of Property
Act, 1882 . )
d. by a written instrument

Mandatory Registration:

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Leases that fall under the specified categories—from year to year, or for a term over
one year, or with an annual rent—require the lease document to be registered.
e. Oral Agreement Inadequate:

An oral agreement is not sufficient for these types of leases; A registered written
instrument is mandatory to make them legally valid.
f. Other Leases:
For leases that do not meet these criteria (ie, terms less than a year), they can be made
by an unregistered instrument or by oral agreement accompanied by delivery of
possession.

4. The rule against perpetuity is provided in Section…………… of the Transfer of Property

Act, 1882 a. 15
b. 16
c. 17
d. 14

5. Under Section 6(c) of the Transfer of Property Act, 1882, an easement cannot be
tranferred apart from the dominant heritage.
a. the statement is true
b. the statement is false
c. the statement is partly true
d. none of the above
6. As per Section 3 of the Transfer of Property Act, 1882, "immoveable property does not
include standing timber, growing crops or grass"
a. the statement is true
b. the statement is false
c. the statement is partly true
d. none of the above
APRIL 2018 QP
1. According to Section 3 of the Transfer of Property Act, 1882, "Instrument" means a
a. testamentary instrument
b. non-testamentary instrument
c. both testamentary and non-testamentary instrument
d. none of the above
2. A gives Rs.500 to B on condition that he shall marry As daughter C. At the date of the
transfer C was dead. As per Section 25 of the Transfer of Property Act, 1882, the transfer is
a. Valid
b. Void

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c. Voidable
d. None of these
3. According to Section 3 of the Transfer of Property Act, 1882, the term "attested" in relation
to an instrument means
a. attested by two or more witnesses
b. attested by one 'Witness only
c. attested by Notary Public
d. none Of the above

4. Under the provision of Section 6(dd) of the Transfer of Property Act, 1882, a right to future
maintenance
a. can be transferred
b. cannot be transferred
c. can be transferred with the leave of the court
d. none of the above

5. A transfers property to-B for life, and after his death to C and D, equally to be divided
between their', or to the survivor of them. C dies during the life of B. D survives B. As per
Section 24 of the Transfer of Property Act, 1882, at B's death the property,
a. shall not passes to D
b. passes to the legal heirs of A
c. passes to D
d. passes to the legal heirs of B

6. A transfers Rs.5,000 to B on condition that he shall marry with the consent of C, D and E. B
marries without the consent of C, D and E, but obtains their consent after the marriage. As
per Section 26 of the Transfer of Property Act, 1882, B has
a. fulfilled the condition
b. not fulfilled the condition
c. partly fulfilled the condition
d. None of the above

7. A mortgages a certain plot of building land to B and afterwards erects a house on the plot. As
per Section 70 of the Transfer of Property Act, 1882, for the purpose of his security, B is
entitled
a. to the house only
b. to the house as well as the plot
c. to the plot only
d. none of the above

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8. Lease under Section 105 of the Transfer of Property Act, 1882, pertains to….

a.immovable property

b.movable property

c.both immovable and movable property

d.none of the above

8. A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100.
The five years expire, but C continues in possession of the house and pays the rent to A. As
per Section 116 of the Transfer of Property Act, 1882, C's lease is renewed
e. from year to year
f. from month to month
g. for six months
h. none of the above

9. The property as subject matter of Section 122 of the Transfer of Property Act, 1882,
includes,……….
a. only movable property
b. only immovable property
c. both immovable and movable property
d. none of the above

2017

1. A lease of immovable property can be determined by(s.111)

a. Express Surrender
b. Implied Surrender
c. Lapse of time
d. All of the above

2. Where mortgagor takes loan by deposit of title deeds is called

a) English Mortgage
b) Usufructuary Mortgage
c) Anomolous Mortgage
d) Equitable Mortgage

3. The Rule against perpetuity is provided in Section

a. 14
b. 15

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c. 13
d. 17
4. Section 53A of Transfer of Property Act deals with
a. Doctrine of election
b. Specific Performance
c. Part performance of Contract
d. Fradulentransfer

5. In case of minor, an agreement in restraint of marriage of minor is

a. Void
b. Valid
c. Voidable at the option of minor
d. None of the above

6. What among the following is not required in Gift?

a. Donor and Donee
b. Consideration
c. Movable and Immovable property
d. Transfer and acceptance

7. 'Sale' defined in TPA

a. Section 53
b. Section 53A
c. Section 54
d. Section 55

8. Transfer of property Act shall be applicable

a. Where the property transferred inter vivos
b. To intestate succession
c. Where property is transferred in execution of decree of the Court
d. None of the above

9. The gift of future property is……….. in terms of Section 124 of Transfer of property act
a. Valid
b. Void
c. Voidable
d. Conditionally void

10. Which of the following is an essential element of a mortgage as provided under Section 58 of
Transfer of Property Act

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a. There must be a transfer of interest in property

b. Property must be immovable and specific
c. There should be consideration
d. All the above

11. A condition absolutely restraining the alienation is(s.10)

a. Valid
b. Void
c. Voidable
d. Regular

2016

1. Where property is transferred subject to a condition absolutely restraining transferee from

parting or disposing his interest in the property
a. condition is void except by a lessor where the condition is for his benefit
b. transfer is void
c. property is forfeited to the Government if such condition is imposed
d. none of the above

 Under Section 10 of India's Transfer of Property Act, 1882 , a condition absolutely

restraining a transferee from disposing of their interest in the property is considered
void. This means the transfer itself remains valid, but the restriction on alienation is
struck down by the court. However, an exception exists for leases and certain conditions
for the benefit of the transferor, and the condition can also be valid if it is a partial
restraint rather than an absolute one.

Explanation of the Rule

Absolute Restraint:

The law aims to uphold the essential feature of ownership, which includes the right to alienate
(transfer) the property. An absolute restraint is a complete ban on selling or transferring the
property, making the condition void.

Transfer Remains Valid:

 Even if the condition is void, the initial transfer of the property to the transferee is not
affected. The transferee can then freely dispose of the property without being bound by
the void condition.

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 Partial Restraint Exception: If the restraint is only partial, such as a requirement to

obtain the transferor's consent or a right of preemption for the transferor, the condition
may be valid if it is reasonable and not unduly restrictive.
 Leasehold Exception:
 A condition absolutely restraining a leaseholder from parting with their interest can be
void, but not if it is for the benefit of the landlord or transferor.

Example:

A transfers a property to B as a gift, but with a condition that B cannot transfer the property to
anyone else at all. In this case, the condition is void because it absolutely restrains B from
alienating (transferring) the property, but the transfer of the property itself from A to B remains
valid.

2. Following can be transferred under the Transfer of Property Act(s.6)

a. right to re-entry
b. mere right to sue
c. easement only
d. none of the above

3. Right of redemption
a. is a contractual right
b. is a statutory right
c. is available to mortgagee
d. none of the above

4. When a donee dies before the acceptance of gift of a property, the

a. gift is void
b. gift is valid
c. gift is irregular
d. gift is illegal

5. Election is necessary under Sec.35 of Transfer of Property Act

a. when the transferor offers 3 properties for sale to the transferee
b. where a person professes to transfer property to which he has no right
c. when the transferee gives the notice of election to purchase
d. when election of properties is published

Introduction

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Election simply means to choose. In legal terminology the Doctrine of Election is based upon
principle of equity and is an obligation imposed upon a party by the court to make a choice
between two inconsistent rights and that he should not enjoy both.

Statutory Provision

The doctrine is dealt with under Section 35 of The Transfer of Property Act, 1882 (TPA).

Essentials of the Doctrine Under Section 35

 The essentials can be enumerated as follows:

o The transferor professes to transfer property which is not his own.

o In the same transaction, benefit is conferred upon the owner of the property.

o The owner must either confirm the transfer or dissent from it.

o In case he dissents, he shall relinquish the benefit so conferred.

 The benefit so relinquished reverts back to the transferor or his representative where:

o The transfer is gratuitous and transferor before election dies, becomes incapable
of making a fresh transfer and

o The transfer is for consideration.

Then, the disappointed transferee has to be made good (compensated) the losses equal to the
amount of property attempted to be transferred.

 Transfer – Section 5 of TPA defines transfer as an act by which a living person conveys
property, in present or in future, to one or more other living persons, or to himself, or to
himself and one or more other living persons; and “to transfer property” is to perform
such act.

 Transferor - A person who makes a transfer or conveyance of property.

 Transferee - A person to whom a conveyance is made.

Illustration:

The farm of Sultanpur is the property of C and worth Rs. 800. A, by an instrument of gift
professes to transfer it to B, giving by the same instrument for Rs. 1,000 to C. C elects to retain
the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His
representative must out of the Rs. 1,000 pay Rs. 800 to B.

Case law

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AMMALU ACHI V. PONAMMAL 1919 MAD

Where a testator bequeathed a field which belonged to his niece to his grandson, and at the same
time left his niece a legacy of 800 . The court held that she must elect between the land or the
legacy.

Disappointed Transferee

A transferee who chooses to reject the benefits conferred, dissents from the transaction and can
no longer take the property is a disappointed transferee.

Choice of Election

A person not entitled to a direct benefit but to an indirect benefit under the transaction need not
elect.

Case Law

 Valliammai V Nagappa (1967), the Supreme Court (SC) held that the question of
election arises only when the transferee takes the benefit directly under the transaction.

Exception to the Doctrine

 Where a particular benefit is expressed to be conferred on the owner of the property

which the transferor professes to transfer, and such benefit is expressed to be in lieu of
that property, if such owner claims the property, he must relinquish the particular benefit,
but he is not bound to relinquish any other benefit conferred upon him by the same
transaction.

o This simply means that if someone offers a benefit in place of property during a
transfer and the property owner chooses the property, they have to give up that
specific benefit. However, they don't have to give up any other benefits offered in
the same transaction.

Mode Of Election

 Acceptance of the benefits by the person on whom they are conferred constitutes an
election if:

o He is aware of his duty to elect.

o He is aware of those circumstances which would influence the judgment of a

reasonable man in making an election, or

 He waives enquiry into the circumstances.

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 In the case where the owner, after complying with the above-said provisions has
knowingly accepted the benefits, it signifies he has accepted the transaction. A
presumption is drawn towards acceptance where:

o He enjoys the benefit for two years without doing any act to express dissent.

o He does some act by which it is impossible to restore the parties to their original
position.

Illustration:

A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a
coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer
of the estate to B.

Limitation Period

 Where the owner does not within one year after the date of the transfer, signify to the
transferor or his representatives his intention to confirm or to dissent from the transfer,
the transferor or his representative may, upon the expiration of that period, require him to
make his election.

o If he does not comply with such requisition within a reasonable time after he has
received it, he shall be deemed to have elected to confirm the transfer.

Effect Of Disability

In case of disability, the election shall be postponed until the disability ceases, or until the
election is made by some competent authority.

Case Laws

 Cooper v. Cooper (1873): The principle of the doctrine of election was explained by the
House of Lords in this leading case in following words:

 “... there is an obligation on him who takes a benefit under a will or other instrument to
offer full effect thereto instrument under which he takes a benefit ; and if it’s found that
instrument purports to affect something which it had been beyond the facility of the donor
or settlor to eliminate, but to which effect are often given by the concurrence of him who
receives a benefit under an equivalent instrument, the law will impose on him who takes
the benefit the requirement of carrying the instrument into full and complete force and
effect.”

 Muhammad Afzal v. Gulam Kasim (1903), it is a landmark case on the topic described
below:

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 Facts – On death of Nawab of Tank, the Government transferred cash allowance to

Nawab's second son. Nawab, during his lifetime had already transferred villages to his
second son for his maintenance.

 Question – Whether both transactions were a part of the same transaction, and can
doctrine of election be applied in this case?

 Verdict – Privy Council in this case held, as the second son acquired grants through two
different sources, they do not form part of same transaction and second son cannot be
put to election.

Application

The Doctrine is applicable to both Hindu Law as well as Muslim Law.

Concept Under English Law

 A transferee by electing against the transfer does not lose his benefit rather he needs to
compensate the disappointed person.

o However, under Indian law, such person has to forfeit the benefit.

 There is no limitation period prescribed for making the election under English Law
whereas under the Indian Law it is one year.

Conclusion

Doctrine of elections is based upon the Latin maxim ‘quod approbo non reprobo’ which
translates to ‘that which I approve, I cannot disapprove’. A person who elects thus cannot choose
to select the part of instrument or transaction that is beneficial to him and choose to reject the
other part. As this doctrine forms a part of the rule of estoppel, a person must also bear the
burden if he receives the benefit.

6. If possession is handed over under a mortgage deed the said transaction is

a. anamolous Mortgage
b. usufructuary Mortgage
c. equitable Mortgatge
d. simple Mortgatge
7. A gift of future property is
a. voidable
b. punishable
c. void

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d. none of the above

8. A vested interest
a. is not defeated by the death of transferee before he obtains possession
b. is defeated by the death of transferee before he obtains possession
c. is prohibited
d. none of the above

Introduction

An interest generated in favor of a person when no period is specified or a condition of the

occurrence of a certain event is often termed vested interest.

 Section 19 of the Transfer of Property Act, 1882 (TPA) deals with the concept of
vested interest.

Section 19, TPA

 Section 19 of TPA states that where, on a transfer of property, an interest therein is

created in favor of a person without specifying the time when it is to take effect, or in
terms specifying that it is to take effect forthwith or on the happening of an event which
must happen, such interest is vested, unless a contrary intention appears from the terms of
the transfer. A vested interest is not defeated by the death of the transferee before he
obtains possession.

 Explanation.—An intention that an interest shall not be vested is not to be inferred

merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior
interest in the same property is given or reserved to some other person, or whereby
income arising from the property is directed to be accumulated until the time of
enjoyment arrives, or from a provision that if a particular event shall happen the
interest shall pass to another person.

Illustrations

 A makes a gift to B of Rs. 100 to be paid to him on the death of C. B gets a vested
interest, as the event, namely C’s death is certain.

 A transfer the whole of property to B upon trust to pay certain debts out of the income,
and then to make over the property to C. C has vested interest, the payment of debts
postpones enjoyment but the interest vests immediately.

Characteristics of Vested Interest

 It creates a present right that is in effect immediately, although the enjoyment is

postponed to the time prescribed in the transfer.

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 It does not entirely depend on the condition as the condition involves a certain event.

 It is a transferable and heritable right.

 Death of transferee will not render the transfer invalid as the interest will pass on to his
legal heirs.

When Unborn Person Acquires Vested Interest

 As per Section 20 of the TPA, where, on a transfer of property, an interest therein is

created for the benefit of a person not then living, he acquires upon his birth, unless a
contrary intention appears from the terms of the transfer, a vested interest, although he
may not be entitled to the enjoyment thereof immediately on his birth.

Case Law

 In the case of Lachman Lal Pathak v. Baldeo Lal Thathwari (1917), a person
transferred a deed of gift in favour of another person but directed him that he will not get
possession of that property until the transferor himself dies. The transferee will have a
vested interest even though his right of enjoyment is postponed.

2014
1. Where mortgagor takes loan by deposit of title deeds is called
a. English Mortgage
b. Usufructuary Mortgage
c. Anomolous Mortgage
d. Equitable Mortgage

2. The principle embodied in Section 43 of the Transfer of Property Act is-

a. Holding over
b. Clog on redemption
c. Feeding the grant by estoppel
d. None of the above

Feeding the grant by estoppel" is an equitable doctrine, codified in Section 43 of India's Transfer
of Property Act, 1882, that protects a bona fide transferee when a transferor fraudulently or
erroneously sells property they do not own but later acquires. If the transfer was for
consideration and the transferee acted in good faith, the transferor is estopped from denying the
prior transfer and is legally compelled to transfer any after-acquired interest in the property to the
original transferee.

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How it Works
1. Unauthorized Transfer :
A person transfers property for consideration, but they do not have
the legal authority or interest to do so.
2. Misrepresentation :
The transferor either fraudulently or erroneously represents that
they are authorized to transfer the property.
3. Reliance by Transferee :
The transferee acts in good faith, relying on this false
representation and paying value for the property.
4. Subsequent Acquisition :
The transferor subsequently acquires an interest in that very
property.

5. Estoppel :

At this point, the transferor is "estopped" (prevented) by their

earlier conduct and representation from denying the validity of the
original transfer.
6. Operative Transfer :
The original transfer automatically "feeds" the new interest
acquired by the transferor, and the interest is then transferred to the
original transferee.
Key Conditions for Section 43
For the doctrine to apply, the following conditions must be met:
 Consideration :
The transfer must be for consideration (not a gratuitous gift).
 Good Faith :
The transferee must have acted in good faith, believing the
transferor's representation.
 Subsisting Contract :
The contract of transfer must be valid and subsisting at the time the
transferor acquires the interest.
 Option of Transferee :
Under Indian law, the transfer of the subsequently acquired interest
is at the option of the transferee, who can choose to enforce it.
Purpose
The primary goal of this doctrine is to protect innocent purchasers
who have been misled by a transferor's misrepresentation

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regarding their ownership of property. It prevents the transferor

from benefiting from their own fraudulent or erroneous actions.

Exceptions and Limitations

 No Duty to Inquire: Section 43 does not impose a duty on the transferee to verify the
title of the transferor. It is sufficient if the transferee was misled by the transferor’s
representation.
 Inapplicability to Involuntary Transfers: Section 43 does not apply to involuntary
transfers such as auction sales conducted by court order.
 No Applicability to Void Transfers: Section 43 cannot validate a transfer that is void ab
initio (from the beginning), such as transfers that are against public policy or made by
minors.
 Non-transferable Property: If the property is non-transferable under Section 6 of the
Transfer of Property Act, Section 43 has no application.

3. Which one of the following is not a transfer of property –

a. Gift
b. Will
c. sale
d. Exchange

4. The expression 'tenant holding over' is used to denote-

a) Continuance of the existing tenant by renewing the tenancy
b) Continuance of a tenant in possession without the consent of the landlord
after the determination of lease
c) A tenant continuing in possession after the determination of lease
with the landlord's consent
d) Continuance of the tenant in the premises against the will of the landlord
but before the determination of lease.

Tenancy by holding over, as per Section 116 of the Transfer of Property Act, 1882 , occurs when
a lessee remains in possession of a property after their lease has ended, and the lessor (landlord)
accepts rent or otherwise agrees to the continued possession. This act renews the lease, typically
from month-to-month or year-to-year, depending on the original purpose of the lease. The lease
is renewed in the absence of any agreement to the contrary, creating a new, implied lease.

Key Elements of a Tenancy by Holding Over

 Determination of Lease:

The original lease must have come to an end, either by its expiry or some other means.

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 Lessee's Possession:

The lessee (or under-lessee) continues to possess the property.

 Lessor's Consent:

The lessor (or their legal representative) accepts the lessee's continued possession, often by
accepting rent. This consent can be expressed or implied.

 Absence of Contrary Agreement:

There is no existing agreement stating that the lease will not be renewed under these
circumstances.

Consequences of Holding Over

 Renewal of Lease: A new lease is created, and its term is renewed periodically.

 Term of New Lease: The renewal is typically from month to month or year to year,
corresponding to the original purpose of the lease, as outlined in Section 106 of the Act.

 Creates a New Tenancy: A tenancy by holding over establishes a new lease, rather than
simply continuing the old one.

Distinction from Tenant-at-Sufferance

 A tenant-at-suffering holds possession without the lessor's consent after the lease has
ended.

 A tenant by holding over, however, does so with the express or implied consent of the
lessor. The crucial difference is the lessor's assent to the continued possession.

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