case study transfer of property act

Transfer of Property Act: Notes, Case Laws and Reading Materials

Subject-wise Law Notes Transfer of Property Act
December 9, 2023

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According to this section, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and other living persons.

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Meaning and Definition of Property

General rules and doctrines regarding transfer of property, sale under transfer of property act, mortgage under transfer of property act, lease under transfer of property act, gifts under transfer of property act.

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Transfer of Property Act Notes And Study Material [PDF Download]

Author : Yogricha

Updated On : March 3, 2024

Overview: The Transfer of Property Act is part of the syllabus for roughly all states' Prelims and Mains Judiciary Examination 2024. As a judiciary aspirant in 2024 or a student in your Law School, you should study the Transfer of Property Act in depth. Refer to this article to understand all the essential topics of the Transfer of Property Act for Judiciary Preparation. Read this entire blog and make notes accordingly. It would help if you also made notes for yourself after referring to this article.

In this Blog we will cover:

Notes of Transfer of Property Act for Judiciary
Important topics of Transfer of Property Act
Previous Year Questions for practice
Tips to memorize Transfer of Property Act for Prelims and Mains of Judiciary

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What is Transfer?

The term "transfer" refers to a procedure or action through which ownership of certain assets is transferred to another party. In the first paragraph of Section 5, the definition of a property transfer is explained as follows: A property transfer entails an action carried out by a living individual, whether in the present or the future, to transfer ownership of assets to one or more other living individuals or to oneself and one or more other living individuals. To execute a property transfer is to carry out this action.

A property transfer involves a living individual transferring ownership, whether in the present or the future, to one or more living individuals or even to oneself. In India, the Transfer of Property Act of 1882 governs property transfers. The Act defines the term "transfer of property" in Section 5.

As per this section, the transfer of property refers to an action through which a living person conveys ownership, whether currently or at a later time, to one or more other living individuals or to oneself along with other living individuals. It's worth noting that the term "living person" encompasses entities such as companies or associations, whether incorporated or not. However, this section doesn't impact any existing laws related to companies, associations, or groups of individuals that are currently in force.

What is the Purpose of the Transfer of Property Act?

The Transfer of Property Act serves the purpose of defining and amending laws related to the transfer of property through the actions of parties involved rather than through legal operations. Such transfers of property are essentially contracts, and therefore, they must meet all the requirements to constitute a valid contract.

Key Definitions:

Living Person: This term includes not only individual living persons but also extends to encompass "a company or association or body of individuals," whether they are incorporated or not. However, this provision does not affect any existing laws pertaining to companies.

Property: While the Act does not provide a specific definition for "property," it has a broad and inclusive meaning. Property can encompass various forms, including both movable (such as books or water bottles) and immovable (such as ownership or copyrights).

Transfer: The term "transfer" also holds a broad meaning, as it can involve the transfer of all rights and interests in a property or just one or more specific rights in that property.

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Essentials of Transfer of Property:

Transfer Involves Living Persons: Property transfers, referred to as "inter vivos," can only occur between living individuals. Transfers to persons who do not exist are not valid. The category of "living person" includes companies, associations, or bodies of individuals, whether incorporated or not.

Property Must Be Transferable: Generally, property of any kind can be transferred. However, there are exceptions outlined in Section 6 of the Act, which lists properties that cannot be transferred. For instance, public offices, pensions, and certain rights are among the items that cannot be transferred.

Transfer Must Not Violate the Law: Transfers that oppose the nature of interest affected, are for unlawful purposes or considerations, involve persons legally disqualified from being transferees, or go against the principles of public policy are prohibited.

Persons Competent to Transfer: Individuals who are competent to enter into contracts, as defined in Section 11 of the Indian Contract Act, may transfer property. This typically includes those who have attained the age of majority, are of sound mind, and are not disqualified from entering into contracts by any other applicable law.

Types of Transfers Under the Transfer of Property Act:

Sale: A sale represents an absolute transfer of property ownership.
Mortgage: A mortgage involves a transfer of a limited interest in the property, often as security for a debt.
Lease: In a lease, the transfer involves the right to enjoy immovable property for a specified period or perpetuity.
Exchange: Exchange is similar to a sale, but the consideration may be something other than money.
Gift: A gift involves the voluntary transfer of property without any consideration.

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Case Law Example:

In the case of Harish Chandra vs. Chandra Sekhar (AIR 1977, All 44), the court held that if a transfer deed explicitly states that the transferor was the owner of the property and expresses the intention to transfer their title, it would constitute a valid transfer of property.

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Defining Movable and Immovable Property:

Movable and immovable properties are differentiated based on several common factors:

Movable Property: Movable property refers to assets that can be easily transported from one location to another without undergoing a change in their shape, capacity, quantity, or quality. Personal property typically falls under the category of movable property.
Immovable Property: Immovable property, on the other hand, is commonly associated with real estate, such as residential homes, factories, manufacturing plants, and similar structures. Movable property, in contrast, encompasses assets that are transportable, like computers, jewelry, vehicles, and the like.
Civil Law System: In a civil law system, personal property is synonymous with movable property. This category includes assets that have the capability to be relocated from one place to another.

Understanding Movable and Immovable Property:

Movable Property: Movable property is characterized by its ability to be easily relocated from one place to another without undergoing any changes in its size, shape, quantity, or quality. Essentially, movable property is transferable through human effort. Examples of movable property include items like books, utensils, and vehicles. However, there are exceptions, such as when a banyan tree is cut or sold for wood, it becomes classified as movable property. Similarly, contracts related to activities like cutting bamboo or collecting leaves fall under the category of movable property.

Movable property does not require mandatory registration under the Indian Registration Act, 1908, and its transfer is voluntary. This type of property is subject to sales tax, central sales tax, and specific restrictions and conditions outlined in tax acts and the Central Sales Tax Act, 1956. The transfer of movable property is completed by a simple delivery, and it does not alter the nature of an ancestral impartible estate.

Movable property encompasses a wide range of assets, including rights of worship, royalties, decrees for the sale of immovable property, decrees for rent arrears, maintenance allowances, standing timber, growing crops, grass, government promissory notes, and more.

Immovable Property: Immovable property, as defined by the General Clauses Act, 1897, includes land, benefits arising from land, and objects attached to or permanently fixed to the earth. This encompasses a broad spectrum of elements, from land and buildings to hereditary allowances, rights of way, light, ferries, fisheries, and other land-related benefits. The definition of immovable property under the Transfer of Property Act, 1882, excludes standing timber, growing crops, or grass.

However, this exclusion is not exhaustive, and a comprehensive interpretation combines definitions from the General Clauses Act and the Transfer of Property Act, concluding that immovable property includes land, benefits arising from land, and objects attached to the earth, except for standing timber, growing crops, or grass.

Immovable property is characterized by various elements, as outlined by legal scholar Salmond, including a determinate portion of the earth's surface, the ground beneath the surface down to the earth's center, the infinite column of space above the surface, natural objects on or beneath the surface, and objects placed on or under the surface through human agency for permanent annexation.

Immovable property includes a wide range of elements, such as rights to ferries, fisheries, rent collection, hereditary offices, equity of redemption, mortgage interests in immovable property, factories, and more. It's important to note that the degree, manner, extent, and strength of attachment, as well as the object of annexation, play crucial roles in determining whether a property is considered movable or immovable. Transfer of immovable property typically requires registration, whereas movable property transfers do not have this requirement.

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Landmark Legal Cases:

Baijnath vs. Ramadhan and Anr, AIR 1963: This significant case was adjudicated by the Allahabad High Court and subsequently referred to a larger bench due to conflicting decisions regarding the key issue at hand.

Issue at Hand: The primary question raised in this case was whether standing shisham or neem trees could be categorized as standing timber as defined under section 2(6) of the Act.

Judgment: The court, in its ruling, emphasized the paramount importance of determining the intention behind the trees in question. It considered whether the parties involved intended to deal with these trees specifically for the purpose of cutting them down or using them as standing timber, rather than merely as ordinary trees.

Shantabai vs. State of Bombay, AIR 1958 SC 532: In this notable case, the Supreme Court held that the real intention behind planting a tree would be the decisive factor. The purpose for which the tree was originally planted and its subsequent use were taken into account. The court established that entering a piece of land and cutting trees would fall under the category of benefits arising from the land.

Kapoor Construction vs. Leela Nagaraj & Ors., AIR 2005: In this case, the court provided valuable insights into the factors that play a crucial role in determining whether a property should be classified as movable or immovable. These factors include:

Intention: The intention behind the property's use and handling is a fundamental factor in its classification.
Mode of Annexation: The manner in which the property is attached or affixed to the land is considered.
Degree of Annexation: The extent or degree of attachment to the land is assessed to determine its classification.

These cases have contributed significantly to the legal understanding of property classification, particularly in distinguishing between movable and immovable assets based on factors such as intention and mode of annexation.

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Property Transferability: An Overview

Definition of Transferable Property: Transferable property refers to assets that can be conveyed or moved from one entity or individual to another for their use. Section 6 of the Transfer of Property Act, 1882, establishes that property of various kinds can be transferred, except when prohibited by this act or other prevailing laws. In the absence of any legal restrictions preventing the transfer, the property owner may proceed with the transfer.

Those contesting non-transferability must demonstrate the existence of specific laws or customs that restrict the right to transfer. In some cases, unauthorized individuals may transfer property and subsequently acquire an interest in that property.

When property is transferred subject to a condition that entirely restrains the transferee from disposing of their interest in the property, this condition is considered void. An exception exists in the case of a lease where such a condition benefits the lessor or those claiming under the lessor. Typically, only individuals with an interest in the property have the authority to transfer their interest and confer proper title to another party.

Transferable Property vs. Non-transferable Property:

Non-Transferable Property under Section 6 of the Act:

Spes Succession (Section 6(a)): This clause pertains to the non-transferability of a mere chance of a person to inherit property. If the transfer is based solely on the chance of receiving property, it is considered invalid.
Right of Re-entry (Section 6(b)): The right to re-enter land, which has been leased or granted to another person, cannot be transferred separately from the land. It can only be exercised by the owner of the property.
Easements (Section 6(c)): Easements, such as rights of way or light, cannot be transferred independently but may be transferred along with the dominant heritage (the property benefiting from the easement).
Restricted Interest (Section 6(d)): Interests restricted in their enjoyment, such as property lent for personal use, cannot be transferred.
Right to Future Maintenance (Section 6(dd)): The right to future maintenance, granted for personal benefit, cannot be transferred.
Mere Right to Sue (Section 6(e)): Mere rights to sue for damages or other claims cannot be transferred, as they are personal to the aggrieved party.
Public Office (Section 6(f)): Transfer of public offices is prohibited, as it may conflict with public policy.
Pensions (Section 6(g)): Military, civil, and political pensions are non-transferable.
Nature of Interests (Section 6(h)): This clause prohibits transfers that are opposed to the interest affected, unlawful in object or consideration, fraudulent, against public policy, or prohibited by law.
Statutory Prohibitions (Section 6(i)): Certain interests, such as those related to default in paying revenue or untransferable rights of occupancy, are declared untransferable by law.

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Who Can Transfer Property Under the Transfer of Property Act, 1882:

Section 7 of the Transfer of Property Act specifies that any person competent to contract is competent to transfer property, either wholly or in part. Additionally, the person willing to transfer property must hold title to the property or have the authority to transfer it, even if they are not the actual owner.

It is crucial to be entitled to the transferable property or have the authority to dispose of transferable property, even if it is not personally owned. Competency to contract is determined by the age of majority, which is typically attained at 18 years, although it may be 21 years in certain circumstances, as stipulated by the Indian Majority Act, 1875.

Persons Disqualified to Transfer: Certain individuals are disqualified from transferring property, including convicts, insolvent individuals, aliens, and enemies. A transfer by a defective guardian of a minor's property is also considered invalid under Section 11 of the Hindu Minority and Guardianship Act.

Official Assignee, Madras vs. Sampath Naidu, AIR 1933 Mad. 795: In this case, the court ruled that a mortgage executed by an heir is void, even if the heir subsequently acquires the property as an heir. Therefore, the transfer of spes successionis (bare chance of inheritance) is void ab initio.
Shoilojanund vs. Peary Charon, (1902) ILR 29 Cal 470: The court held that the right to receive voluntary and uncertain offerings in worship is restricted for personal enjoyment and, therefore, cannot be transferred.
Ananthayya vs. Subba Rao, AIR 1960 Mad 188: In this case, the court clarified that agreements where one person agrees to give a certain proportion of their income to another person, in consideration of being maintained by the latter, are not subject to the non-transferability provisions.
Saundariya Bai vs. Union of India, AIR 2008 MP 227: The case affirmed that pensions are non-transferable property, especially when they are unpaid and in the possession of the government. It is essential to differentiate pensions from bonuses and rewards, which may be transferable.

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Transfer to an Unborn Person: An Explanation

Definition of Transfer to an Unborn Person: Transfer to an unborn person refers to a legal scenario in which an interest in property is created for the benefit of an individual who is not yet in existence but may come into existence in the future. Section 13 of the Transfer of Property Act, 1882, outlines the conditions under which such transfers can occur. These conditions ensure that any interest created for an unborn person does not take effect unless it covers the entirety of the remaining interest of the property's transferor.

While an unborn child does not have current legal existence, both Indian and English law treat a child in the womb as already born for many legal purposes, following the legal maxim "nasciturus pro jam nato habetur."

To transfer property for the benefit of an unborn person, a trust mechanism must be employed. In simpler terms, the immovable property must vest in a living person between the date of the transfer and the birth of the unborn person, as property cannot be directly transferred in favor of an unborn person.

Key Elements of Section 13 of the Transfer of Property Act:

No Direct Transfer: Directly transferring property to an unborn person is prohibited. Instead, such transfers must be accomplished through a trust mechanism.
Prior Life Interest: A prior life interest must be created, which means that the property must be in possession of a living person between the date of the transfer and the birth of the unborn person. The interest in favor of the unborn person should always follow a prior interest created in favor of a living person.
Absolute Interest: The entire property should be transferred in the name of the unborn person. Partial interests or interests lasting only for life cannot be given to an unborn person.

Procedure for a Valid Transfer of Property to an Unborn Person:

Section 13 outlines a specific procedure for transferring property for the benefit of an unborn person:

The individual intending to transfer property for the benefit of an unborn person must first create a life interest in favor of a living person.
Afterward, an absolute interest in favor of the unborn person can be established.
If the unborn person comes into existence during the period when the life interest is in place, the property's title will immediately transfer to the newly born individual. However, possession of the property will only be granted upon the death of the person holding the life interest.

Case Laws Relevant to Transfer of Property to an Unborn Person:

Girjesh Dutt vs. Datadin: In this case, a gift was made for the life of 'B' and then to 'B's daughter without the power of alienation. If 'B' had no heir, the property would go to 'A's nephew. The court held that the gift in favor of unborn daughters was invalid under Section 13 because it was a limited interest and subject to the prior interest in favor of 'B.'
Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey Kuer: The Supreme Court observed that no interest can be created directly in favor of an unborn person. However, when a gift is made to a class or series of persons, some of whom exist and some are nonexistent, it remains valid for the persons who exist at the time of the testator's death but is invalid for the rest.

The transfer of property to unborn persons is possible through indirect means using trusts. Section 13 of the Transfer of Property Act ensures that such transfers adhere to specific conditions to prevent obstacles in the free disposition of property for future generations. To make a valid transfer in favor of an unborn person, it is crucial to convey the entire remaining interest of the property to the unborn individual. This ensures that the transfer takes effect in accordance with the law, and any other approach may render the transfer void.

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Rule Against Perpetuity Explained

Definition of Rule Against Perpetuity: The rule against perpetuity, as defined under the Transfer of Property Act, places a limit on the maximum time period during which property can be transferred. In this context, "perpetuity" means an indefinite or limitless duration. This rule prevents the creation of transfers that render a property inalienable for an indefinite period, known as the perpetuity period. Section 14 of the Transfer of Property Act addresses the rule against perpetuity.

Conditions for Compliance:

Transfer During Lifetime: To prevent violations of Section 5 of the Transfer of Property Act, property transfers must occur during the lifetime or before the death of the person with prior interest and the conception of the beneficiary. Failing to do so will render the transfer void.

Attainment of Full Age: The transfer of property to an unborn person or the creation of an interest in favor of the beneficiary can happen in three stages:

Interest is established upon conception.
It becomes a vested interest at birth, according to Section 20 of the Transfer of Property Act.
It fully vests upon the beneficiary attaining the age of majority. Absolute interest encompasses the enjoyment of property, possession, and alienation.

Object of the Rule Against Perpetuity: The primary objective of the rule against perpetuity is to ensure that property remains transferable and does not become inalienable for extended periods. This promotes the free circulation of property, benefiting trade, commerce, society, and property ownership. It aims to prevent the creation of perpetuities, which could hinder the active use and transfer of property.

Conditions for Rule Against Perpetuity under the Transfer of Property Act:

Transfer of Property: There must be a transfer of property.
Beneficiary: The transfer must aim to benefit an unborn person, meaning the ultimate beneficiary.
Timing of Interest: The interest created must take effect during the lifetime of a living person and during the minority of the unborn person.
Birth of Unborn Person: The birth of the unborn person must occur before the death of the person holding the property interest at the end of the living person's interest.
Vested Interest: The vested interest in favor of the ultimate beneficiary can only be postponed until the end of the living person's lifetime.

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Differences in the Rule Against Perpetuity between Indian Law and English Law:

In India, the minority period is 18 years, while it is 21 years in English law.
Under Indian law, the period of gestation must be an actual period, whereas under English law, it is a gross period.
Indian law requires the property to be given absolutely to the unborn person, while English law does not require absolute transfer.
In Indian law, the unborn person must come into existence before the death of the last life estate holder, whereas in English law, they must exist within 21 years of the last life estate holder's death.

Exceptions to the Rule Against Perpetuity:

Transfer for Public Benefit: Property transferred for the benefit of the general public, such as for knowledge, religion, health, commerce, or any other beneficial purpose to mankind, is not void under this rule.
Covenants of Redemption: This rule does not affect covenants of redemption in mortgages.
Personal Agreements: Agreements that do not create any interest in the property are not affected by this rule. It applies only to transfers where an interest is created.
Pre-emption: The rule does not apply to contracts of perpetual lease renewal.
Perpetual Lease: It is not applicable to contracts for perpetual lease renewal.

Vested Interest for the Ultimate Beneficiary:

A vested interest in favor of the ultimate beneficiary is achieved either:

Upon the death of the person with a life interest in the property, or
After a period of 18 years, or a longer period if applicable, from the creation of the interest. Any condition extending beyond this period is void.

Conclusion: Section 14 of the Transfer of Property Act establishes the rule against perpetuity to prevent the stagnation of properties and ensure their free circulation for the benefit of society. This rule encourages property's active use and transfer, which is essential for trade, commerce, and the overall betterment of society.

Case Laws under Rule Against Perpetuity under Transfer of Property Act:

Girish Dutt vs. Data Din: In this case, the court held that transfers intended to be effective upon failure of earlier transfers are void under Section 13 of the Act.
T. Subramania vs. T. Varadharayas: The court held that an interest created in favor of the eldest son was limited to his lifetime, making it invalid under the rule against perpetuity.

Vested Interest and Contingent Interest

Understanding Vested Interest

Definition of Vested Interest: Vested interest refers to an interest in a property that is created in favor of a person without specifying a specific time or connection. In a vested interest, the interest in the property belongs to the transferee, even though the right to enjoy the property may be delayed. The person with the vested interest does not have immediate possession of the property but has the expectation of receiving it upon the occurrence of a specified event.

Section 19 of the Transfer of Property Act defines Vested Interest: "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."

Example of Vested Interest: Suppose 'X' promises to transfer his property to 'Y' when 'Y' reaches the age of 22. 'Y' will have a vested interest in 'X's' property until he gains possession of it. If 'Y' were to pass away at the age of 21, the vested interest would transfer to 'Y's' legal heirs, who would be entitled to the property within the specified time frame.

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Characteristics of Vested Interest:

Certainty: Vested interest does not depend on an uncertain event; it creates an immediate or present right, even though the right to enjoy the property may be postponed.
Survivability: Vested interest does not cease to exist upon the death of the transferee. Instead, the property is transferred to the transferee, and upon the transferee's death, it passes to their heirs.
Transferability and Heritability: Vested interest is both transferable and heritable, depending on the nature of the transfer and any associated conditions.

When Does Vested Interest Occur? Vested interest can occur in two stages:

Immediate Possession: When the transferee is in immediate possession of the property.
Delayed Enjoyment: When the transferee has acquired an interest in the property but does not have current possession, and the right to enjoyment is deferred to a future date.

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Understanding Contingent Interest

Definition of Contingent Interest: Contingent interest refers to an interest created in favor of a person that depends on the occurrence of a specified uncertain event. In a contingent interest, the right to the property is not granted until the uncertain event happens, and if the event does not occur, the person does not receive the property. The contingent interest is entirely contingent on the condition imposed on the transfer.

Conditions for Contingent Interest:

Dependence on Uncertain Event: Contingent interest occurs when the interest depends on a specified uncertain event.

Examples of Contingent Interest:

If 'A' agrees to transfer property to 'B' on the condition that 'B' scores 90% on an exam, 'B' acquires a contingent interest in the property. 'B' will only receive the property if the condition of scoring 90% is fulfilled.
When a person has the chance to own a particular property, but the event that would trigger ownership has not occurred, their interest in the property is contingent.

Exceptions to Contingent Interest under Section 120 of the Indian Succession Act, 1925:

When a person becomes entitled to an interest upon reaching a particular age, and the transferor also gives them the income arising from such interest before they reach that age, or directs that the income, or a portion thereof, be applied for their benefit, such interest is not contingent.

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Characteristics of Contingent Interest:

Conditionality: Contingent interest depends entirely on the fulfillment of a specified condition. If the condition is not met, the interest is not realized.
Survivability: Contingent interest ceases to exist if the uncertain event does not occur. It is not transferable or heritable unless the contingent event takes place.

Vested interest is an immediate or present interest in a property, while contingent interest depends on the occurrence of a specified uncertain event. Both types of interests have distinct characteristics and implications, and they play a crucial role in property transfers and ownership rights.

Case Law: Lachman vs. Baldeo (1919) 21 OC 312

In this legal case, a deed of gift was transferred by one individual in favor of another person. However, the transferor included an instruction that the transferee should not take possession of the property until the transferor's own demise. Despite the postponement of the right to enjoy the property, the transferee was deemed to have a vested interest in the property.

Case Law: Leake vs. Robinson (1817) 2 Mer 363

In the case of Leake vs. Robinson, the court established a significant legal principle. It was ruled that whenever a condition is attached to a legacy, specifying that it is to be given 'at a particular age,' 'upon attaining a particular age,' or 'a specific age,' it can be inferred that the transfer involves a contingent interest.

Doctrine of Election in Property Law

The doctrine of election in property law pertains to the choice made by an individual between two alternative or incompatible rights when presented with such a situation. Under this doctrine, if a person is granted two rights through a single instrument, with one right being contingent on the other, they are obligated to select one of these rights. This means that the beneficiary cannot simultaneously enjoy both rights; they must choose between the conflicting options. Essentially, the person who receives a benefit under an instrument must also bear any associated burdens.

The doctrine of election is codified in the Transfer of Property Act, 1882, under Section 35, and is also found in sections 180-190 of the Indian Succession Act. It requires individuals to make a choice regarding whether they wish to assume ownership of someone else's property and whether they intend to uphold the conditions set forth.

Understanding the Doctrine of Election

The doctrine of election is founded on the principle that one cannot accept a benefit under an instrument or transaction and simultaneously reject or disapprove of its unfavorable aspects. In simpler terms, if an individual accepts a benefit from a deed or instrument, they must also accept any corresponding obligations or conditions.

For instance, consider a scenario in which 'A' promises to give 'B' 50 lakh rupees but with the condition that 'B' must sell his house to 'C.' In this case, 'B' must make a choice between accepting 'A's offer and complying with the condition to give up his house or refusing 'A's offer and retaining his house.

Essential Conditions for Application of the Doctrine of Election

For the doctrine of election to apply, several essential conditions must be met:

The transferor must not be the owner of the property being transferred.
The transferor must transfer another person's property to a third party.
The transferor must simultaneously grant some property from their own to the owner of the property.
Both transfers, i.e., the transfer of the owner's property to the third party and the benefit conferred on the owner, must be part of the same transaction. If they are separate transactions, the doctrine of election does not come into play.
The owner must possess a proprietary interest in the property in question.
If a person directly accepts a benefit under a transaction but diverts another benefit indirectly, the doctrine of election may not apply.

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Exceptions to the Doctrine of Election

There are exceptions to the doctrine of election:

When the owner, while choosing to retain the property, gains an unrelated benefit through the same transaction, they are not required to relinquish this additional benefit.
If the original owner is aware of the obligation to make an election and accepts a benefit, his acceptance is deemed as an election to validate the transfer.
If the owner does not make a choice within a year of the property transfer, the transferor may require the owner to elect. After a reasonable time, if the owner still does not make a choice, it is assumed that they have elected to validate the property transfer.
In the case of a minor, the period for election is postponed until the individual reaches the age of majority, unless represented by a guardian.

Modes of Doctrine of Election

There are two modes of making an election:

Direct Election: This can be done through various means, including a written letter, a telegram, oral communication from the transferor, or any indication by the person that expresses the transferor's intention.

Indirect Election: Indirect election includes three types:

Acceptance of benefits without knowledge of the duty for election: If the owner accepts the benefit without being aware of the duty to make an election, it constitutes an election.
Enjoyment for two years: If the owner holds the property for two years without expressing dissent after knowing the obligation to make an election, it is presumed that they have elected to validate the transfer.
Status quo cannot be restored: In cases involving property that is consumed or used, once consumption begins, the election is presumed to have taken place. No specific time period for consumption is required in this scenario.

Mohd. Kader Ali Fakir vs. Lukman Hakim: This case emphasizes that a person who accepts a benefit under an instrument must also accept any burden imposed by the same instrument. The doctrine of election ensures that one cannot accept favorable aspects while rejecting unfavorable ones under the same instrument.

Dhanpati vs. Devi Prasad and Others (1970) (3) SCC 776: In this case, the court outlined the essential conditions for the application of the doctrine of election. It stressed that the owner must not have a right to transfer the property, must transfer some benefit to the owner of the property, and both transfers must be part of the same transaction. The owner must choose to confirm or dissent from the transfer.

Transfer by an Ostensible Owner in Property Law

An ostensible owner refers to a person who appears to be the legitimate owner of a particular property but, in reality, is not the true owner. This individual is not a trespasser or someone in unlawful possession of the property. Instead, they act as if they are the property owner, often with the consent or acquiescence of the actual property owner.

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Transfer by Ostensible Owner

Section 41 of the Transfer of Property Act deals with the concept of a transfer by an ostensible owner.

Essentials of Ostensible Owner

Several key elements must be met for a transfer by an ostensible owner to be valid:

Transfer of Immovable Property by an Ostensible Owner: This section is applicable to the transfer of immovable property, including partial transfers, such as mortgages. It encompasses various types of transfers beyond just sales or exchanges.
Transfer for Consideration: The transfer must involve a consideration, meaning that it is not applicable to transfers made without any exchange of value, such as gifts.
Consent of the Person Interested in the Property: The transfer must occur with the consent of the person interested in the property, which usually refers to the real owner. This consent can be expressed or implied, but it must be independent and not obtained through fraud or misrepresentation.
Transferee's Good Faith and Reasonable Care: The transferee, the person receiving the property, must have acted in good faith and taken reasonable care before entering into the transaction. This implies that they believed the transferor had the right to transfer the property.

Benami Transaction

Benami transactions are a common example of ostensible ownership. In a benami transaction, one person holds the property while another provides the consideration for it. The person providing the consideration is the actual owner, while the person in whose name the property is held is the ostensible owner.

Benami transactions are now regulated by the Benami Transactions Act, 1988, which prohibits such transactions and imposes penalties. However, there are exceptions to this prohibition, including when someone buys property in their spouse's name or in the name of an unmarried daughter.

Validity of the Transfer

If all the requirements of Section 41 are met, the transfer by an ostensible owner is considered valid and not null or void.

Burden of Proof: Ostensible Owner

The burden of proof under Section 41 falls upon the transferee, who must demonstrate:

That the transferor is an ostensible owner.
That they took reasonable precautions, as a reasonably prudent person would, to protect their interests in the transaction.

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Rule of Estoppel over the Real Owner

Section 41 operates on the principle of estoppel. If the real owner of the property assures the transferee that the ostensible owner has the right to deal with and alienate the property, and the transferee reasonably believes this to be true even after taking due care, the real owner is prevented from later questioning the transfer. This is based on the idea that the real owner's conduct led to the transfer, and the innocent party should not suffer as a result.

Padam Chand vs. Lakshmi Devi: In this case, a gift deed was executed by the ostensible owner (father) in favor of his daughter. The transfer was based on love and affection. The court held that Section 41 did not apply because there was no monetary consideration involved.
Ramcoomar Koondoo vs. Macqueen: This case involved property purchased by Alexander Macdonald in the name of his mistress, Boono Baby. After Alexander's death, the property was sold to Ramdoni Kundu. The court held that the sale was bona fide and conducted with proper investigation, meeting the requirements of Section 41.

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The Doctrine of Lis Pendens in Property Law

The Doctrine of Lis Pendens, derived from the Latin phrase "Pendente lite nihil innovetur," translates to "during the pendency of litigation, nothing new should be introduced." It signifies that when there is ongoing litigation concerning a property, no fresh transactions or interests should be created in relation to that property. The doctrine aims to maintain the status quo of the property in question during the course of legal proceedings.

Key Aspects of the Doctrine of Lis Pendens:

Nature of the Doctrine: The Doctrine of Lis Pendens is rooted in the concept of necessity rather than the principle of notice, as found in common law, which includes principles of justice, equity, and good conscience. It ensures that justice is dispensed without prejudicing the rights of either party.
Legal Basis: Section 52 of The Transfer of Property Act, 1882, embodies the doctrine of lis pendens. It is encapsulated in the maxim "Pendente lite nihil innovetur," which means "nothing new should be introduced in property whose litigation is pending."
Effect of Lis Pendens: When a lawsuit directly involving the title or rights related to immovable property is pending in a competent court, any transaction affecting that property may not be carried out by any party involved in the lawsuit unless it is done under the jurisdiction of the court and according to its conditions.

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Illustrations:

Scenario 1: 'A' files a lawsuit against 'B' regarding a house in 'B's possession. During the litigation, 'B' sells the house to 'C.' If 'A's lawsuit is dismissed, the transfer to 'C' remains valid, and 'C' is not affected by the litigation outcome.
Scenario 2: 'A' files a lawsuit against 'B' regarding a house in 'B's possession. During the litigation, 'B' sells the house to 'C.' If 'A' wins the lawsuit, the transfer to 'C' is voidable, and 'A' has the right to claim the house.

Essentials of the Doctrine of Lis Pendens:

Several elements must be met for the doctrine of lis pendens to apply:

Pendency of Proceedings: There must be a pending case or legal proceeding.
Competent Court: The case or proceeding should be within the jurisdiction of a competent court.
Specific Involvement of Immovable Property: The right to the title of immovable property must be directly and clearly in question in the lawsuit.
Non-Collusive Suit: The lawsuit should not be collusive, meaning it should be a genuine dispute.
Direct Affectation of Rights: The suit should directly impact the rights of other parties involved.
Transfer's Impact on Litigation Rights: Any transfer of the property should affect the litigation rights of the parties involved.

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Non-Applicability of the Doctrine of Lis Pendens:

The doctrine of lis pendens does not apply in certain circumstances:

Sale by mortgage exercised under the power conferred by the mortgage deed.
Cases involving reviews.
Cases where the transferor is the sole party affected.
Cases where the proceedings are collusive.
Cases where the property is inadequately described in the plaint.
Cases where the subject matter of the rights under dispute is different from the property transferred.

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Purpose of the Doctrine of Lis Pendens:

The doctrine of lis pendens is essential to prevent the transfer of the title of a disputed property without the court's consent. Without this doctrine, litigation could continue indefinitely, making it impossible to bring lawsuits to a successful conclusion. The doctrine ensures that the rights of parties are protected and prevents unfair transactions during ongoing litigation.

Applicability of Section 52 of Transfer of Property Act: Conditions to Be Satisfied:

The Supreme Court, in the case "Dev Raj Dogra vs. Gyan Chand Jain and others," established the following conditions for the application of Section 52 of the Transfer of Property Act:

A pending suit or proceeding involving the right to immovable property.
The suit or proceeding must be in a court of competent jurisdiction.
The suit or proceeding should not be collusive.
The right to immovable property should be directly and clearly in question.

Case Laws Illustrating the Doctrine of Lis Pendens:

Ramjidas vs. Laxmi Kumar and Ors. (AIR 1987 MP 78): This case emphasized that Section 52 serves to subject claims related to immovable property to the authority of the court handling the property, ensuring justice is provided without undermining the rights of either party.
Lov Raj Kumar vs. Dr. Major Daya Shanker and Ors.: In this case, the Delhi High Court asserted that the principles of Section 52 of the Transfer of Property Act are aligned with equity, good conscience, and justice. Allowing transactions during pending litigation would defeat the ends of justice and undermine principles of equity.
Har Narain vs. Mam Chand: The Supreme Court clarified that Section 47(2) of The Registration Act, 1908, does not override the doctrine of lis pendens. Land sales are still subject to the doctrine even if the civil action commences before registration.

Understanding Fraudulent Transfers under the Transfer of Property Act

Definition of Fraudulent Transfer: A fraudulent transfer, as per the Transfer of Property Act, refers to the unlawful transfer of property with the intent to deceive or defraud creditors. Such transfers involve the intention to hinder creditors from exercising their legitimate and equitable rights. When a transfer is made with fraudulent intent, it is considered unjust and contrary to principles of equity and justice, even if it is legally valid.

Relevant Section: Section 53 of the Transfer of Property Act, 1882, deals with fraudulent transfers.

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Key Elements of Fraudulent Transfer:

Transfer with Intent to Defeat Creditors: To qualify as a fraudulent transfer, it must involve the intent to defeat or delay the rights of the transferor's creditors. This intention is crucial in establishing a fraudulent transfer.
Delaying Creditor Satisfaction: The primary objective of a fraudulent transfer is to place the property beyond the reach of creditors, causing a delay in satisfying their debts.

Example: If 'A' transfers ownership of his property to 'B' with the intention of shielding his assets from creditors, this transfer is deemed fraudulent.

Legal Consequences of Fraudulent Transfer: A fraudulent transfer of property creates a civil cause of action. The affected creditor can approach the court to set aside such a transfer. The court has the authority to declare a fraudulent transfer void at the request of the defrauded creditor.

Objective of the Doctrine of Fraudulent Transfers: The primary objective of Section 53 is to protect the rights of creditors who may be owed financial liabilities by the transferor. It aims to provide security to those creditors who might suffer delays or defeats in their claims due to the transferor's ill intentions. Creditors, who have done nothing more than lend money to the deceitful transferor, deserve legal protection, which can only be provided by legislative policy.

Essentials of Fraudulent Transfer under the Transfer of Property Act:

Transfer by the Transferor: The property must be transferred by the transferor.
Involvement of Immovable Property: The property being transferred should be immovable.
Transfer without Consideration: The transfer should be made without proper consideration.
Intent to Defraud Creditors: The transfer must be executed with the intent to defraud subsequent transferees and to defeat or delay the rights of creditors.
Voidable at the Option of Subsequent Transferee: Such transfers are voidable at the option of subsequent transferees.

Exceptions to Fraudulent Transfer:

A fraudulent transfer may not be void if the following conditions are met:

The transfer was made in good faith.
The transfer was made for consideration.

Filing a Suit for Fraudulent Transfer:

Suits related to fraudulent transfers are typically filed by the affected creditor. The suit is framed based on the grounds that the transfer was made with the intent to defraud or delay the transferor's creditors. These suits are instituted on behalf of all creditors to avoid multiple lawsuits against the same parties on the same matter.

Burden of Proof in Fraudulent Transfer Cases:

There is no presumption in law that a transfer was made with the intent to defraud creditors. The burden of proof initially lies with the creditors to demonstrate the transferor's intent to defeat or delay them. Once the creditors establish a prima facie case of fraudulent intent, the burden shifts to the transferor to provide a defense and explain the circumstances.

Proviso: The law protects bona fide transferees who have paid consideration for the transfer and were unaware of the fraudulent intentions of the transferor. However, if the transferee had constructive notice of the fraud, it is assumed that they knew about it.

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Case Laws Illustrating Fraudulent Transfers:

Kanchanbai vs. Moti Chand (AIR 1967 MP 145): In this case, the court clarified that the term "creditors" includes even a single creditor. The fraudulent transfer provision applies even if the intent was to defraud a single creditor.
Dr. Vimla vs. Delhi Administration (AIR 1963 SC 1572): The Supreme Court held that fraud involves two elements: deceit and injury to the defrauded party. Injury is not limited to economic loss but also encompasses harm to one's body, mind, reputation, or deprivation of property or money.

The doctrine of fraudulent transfers aims to protect the rights of creditors and ensure that fraudulent transactions do not hinder their legitimate claims.

Understanding the Rule of Part Performance

Definition of Rule of Part Performance: The rule of part performance is a legal principle based on equity. It was developed in England and later incorporated into the Transfer of Property Act, 1882, through the Amendment Act of 1929.

Key Elements of the Rule of Part Performance:

Contractual Agreements: In contractual agreements, such as a contract for sale of property, no rights are transferred until the contract is fully executed. However, if a party to the contract performs their part or takes any actions in furtherance of the contract, they are entitled to reimbursement or compensation if the other party backs out.
Section 53A: Section 53A of the Transfer of Property Act deals with this rule. It stipulates that when both parties in a contract have their respective roles to play, the transferor must get the necessary documents prepared and complete the registration process, while the transferee must pay the agreed-upon amount and take possession of the property.
Failure to Complete the Contract: If the transferor fails to complete the registration or fulfill other contractual obligations, they do not have the right to file a case against the transferee or other parties. However, the rights and ownership of the transferee remain unaffected.

Illustration: Suppose 'A' enters into a contract with 'B' to sell a plot of land for a specified amount. 'A' accepts an advance payment from 'B' and hands over possession of the plot. Later, when 'B' is ready to make the full payment, 'A' refuses to accept it and asks for the plot back.

In this scenario, 'B' is prepared to fulfill their part of the contract, but 'A' is not. In such a case, 'B' can file a case for specific performance against 'A,' even if the sale was not registered.

Essentials of the Rule of Part Performance:

Written Contract: The rule of part performance applies when there is a written contract for the transfer of immovable property by or on behalf of the transferor. It does not apply to oral agreements or agreements that are entirely absent in writing.
Consideration: There should be consideration involved in the contract.
Clear Terms: The contract should outline the terms of the transfer with reasonable certainty.
Transferee's Possession: The transferee must have taken possession of the property as a result of the contract or continued possession if they were already in possession. Possession must be linked to the contract and not for any other purpose.
Act Done in Furtherance: If the transferee was already in possession before the contract, they must have done something in furtherance of the contract. Mere continuation of possession by someone already in possession is not sufficient.

Objectives Behind the Rule of Part Performance: The rule of part performance is based on the principle of equity and is intended to protect the rights of parties in a contract. Its objectives include:

Ensuring that the transferee's right to retain possession is not affected if they have acted in good faith and have not committed any fault in the contract.
Preventing the transferee from suffering due to the transferor's failure to complete the transfer as agreed upon.

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Transfer of Property: The rule of part performance applies to the transfer of immovable property, including sales, leases, and mortgages.

Proviso: The law protects bona fide transferees who have paid consideration for the transfer and were unaware of the transferor's breach of contract. However, if the transferee had constructive notice of the breach, it is assumed that they knew about it.

Case Law Illustration: In the case of Kanchanbai vs. Moti Chand (AIR 1967 MP 145) , the court clarified that the term "creditors" includes even a single creditor. The rule of part performance can be applied even if the intent was to defraud a single creditor.

The rule of part performance aims to protect the rights of parties in a contract and ensure that they are not unfairly affected by the actions or omissions of the other party.

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Case Law Examples of the Rule of Part Performance

Case 1: Kukaji vs. Basantilal (AIR 1955 MB 93)

Facts of the Case:

'A' mortgaged his house to 'B' and handed over possession of the property.
Later, 'A' sold the same house to 'B' without registering the sale deed. The sale consideration was a mortgage loan.
Subsequently, the property was sold to 'C,' and a transfer deed was registered.
'C' filed a lawsuit against 'B' to release the mortgage, while 'B' claimed retention of possession under the rule of part performance, invoking Section 53(A) of the Transfer of Property Act.
The court held that 'B' was already in possession of the property as a mortgagee. Mere continuity of possession does not constitute part performance.
To benefit from the principle of part performance, 'B' needed to demonstrate that they had taken additional actions to advance the contract.

Case 2: Sardar Govindrao Mahadik vs. Devi Sahai

'A' mortgaged his property to 'B' and handed over possession.
Subsequently, 'A' and 'B' entered into an agreement to sell the mortgaged property. 'B' advanced Rs. 1000 to purchase a stamp for the deed, which was never registered.
Later, 'A' sold the property to 'C,' and both 'A' and 'C' filed a lawsuit against 'B' for the redemption of the property.
'B' claimed the benefit of the rule of part performance, arguing that a sale deed was executed in his favor, he retained possession, and he had advanced Rs. 1000 for the stamp, which should be considered as part performance of the contract.
The court held that the money provided for the purchase of the stamp was related to the contract, but no further actions were taken to advance the contract.
'B' was not entitled to the benefit of the rule of part performance in this case.

These case law examples illustrate the application of the rule of part performance in situations where possession alone is not sufficient to claim part performance, and additional actions or advancements of the contract are required to establish the right to retain possession.

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Definition of Actionable Claim:

An actionable claim refers to a claim or debt for which legal action can be taken. It signifies a right to enforce a claim through legal means. This term often pertains to unsecured debts or beneficial interests in movable property that are recognized by civil courts as grounds for seeking relief. Actionable claims can be transferred, and their transfer is regulated by the Transfer of Property Act, 1882.

Actionable Claim under the Transfer of Property Act:

Under the Transfer of Property Act, an actionable claim encompasses claims to unsecured debts or beneficial interests in movable property that are not in the possession of the claimant. These claims can be transferred from one party to another, and the Act provides guidelines for their transfer in Chapter VIII, which includes sections 130 to 137.

Examples of Actionable Claims:

Claim for Arrears of Rent: A tenant's claim for unpaid rent is considered an actionable claim. The tenant can take legal action to recover the overdue rent.
Claim for Money Due under an Insurance Policy: If an insurer owes a policyholder a sum of money as per the terms of an insurance policy, this claim can be an actionable claim. The policyholder can seek legal remedies to enforce the claim.
Claim for Return of Earnest Money: When earnest money is given as part of a contract and the contract falls through, the party who deposited the earnest money can pursue it as an actionable claim.
Right to Get Back the Purchase Money in Case of Set Aside Sale: If a sale is set aside for any reason, the buyer has the right to recover the purchase money. This right is considered an actionable claim.
Right of a Partner to Sue for an Account of a Dissolved Partnership Firm: When a partnership firm dissolves, a partner may have the right to sue for an account of the firm's financial transactions. This right is an actionable claim.
Right to Claim Benefits under a Contract for the Purchase of Goods: If one party has paid for goods or services and the other party fails to deliver them as per the contract, the party who made the payment can claim benefits as an actionable claim.

Exceptions to Actionable Claim:

Some claims and rights are not categorized as actionable claims under the Transfer of Property Act. These exceptions include:

Debts Secured by Mortgage of Immovable Property: Claims secured by a mortgage of immovable property are not considered actionable claims.
Damages for Breach of Contract: Claims for damages resulting from a breach of contract, whether in tort or contract, are not actionable claims.
Claims to Mesne Profits: Claims for mesne profits, which are payments for possession of immovable property made by a person who does not have the right to allow such possession, are not actionable claims.
Shares in a Company: Claims related to shares in a company are not considered actionable claims.
Claim to Copyright: Copyright claims are not classified as actionable claims under the Transfer of Property Act.

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Transfer of Actionable Claims:

The transfer of actionable claims is regulated by Section 130 of the Transfer of Property Act. To transfer an actionable claim, the following conditions must be met:

The transfer must be executed through a written instrument signed by the transferor or their authorized agent.
The transfer can be with or without consideration.
Once the instrument of transfer is executed, the transfer becomes complete and effective.
All rights and remedies related to the actionable claim then vest in the transferee, regardless of whether notice of the transfer is given to the debtor.

Notice of Transfer to Debtors:

While notice of transfer to debtors is not mandatory for the validity of the transfer, providing notice is advisable to bind the debtor with the transfer. Section 131 of the Transfer of Property Act specifies that the notice must be in writing, signed by the transferor or their authorized agent, and should include the name and address of the transferee.

H. Anraj vs. Govt. of Tamil Nadu, A.I.R. 1986 S.C. 63: In this case, the Supreme Court ruled that the right to participate in a draw is a beneficial interest in movable property, and the objective of participation is to win the award. Therefore, the transfer of such rights qualifies as an actionable claim.

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What is a Mortgage?

A mortgage is a financial arrangement wherein a borrower secures a loan to purchase or maintain real estate, typically a home, and commits to repay the borrowed amount over time through a series of regular payments. In this arrangement, the property itself serves as collateral to guarantee the repayment of the loan. Mortgage transactions involve the transfer of an interest in a specific immovable property, either to secure funds provided through a loan, existing or future debt, or to fulfill an engagement that might lead to a financial obligation.

As per Section 58(a) of The Transfer of Property Act, 1882, a mortgage is defined as the transfer of an interest in a particular immovable property, with the aim of securing the payment of money advanced or to be advanced as a loan, an existing or potential debt, or the performance of an engagement that could result in a pecuniary liability. In this context, the transferor is referred to as the mortgagor, the recipient of the transfer as the mortgagee, the total sum involving principal and interest currently secured is known as the mortgage-money, and the associated document, if any, formalizing the transfer is termed a mortgage-deed.

Characteristics of a Mortgage:

Involves Immovable Property: Mortgages are applicable exclusively to immovable property, which includes land and structures, along with profits derived from land-related assets such as trees, buildings, and machinery. However, it is important to note that machinery not permanently affixed to the earth and capable of relocation is not considered immovable property.

Partial Transfer of Ownership: Unlike a sale, where full ownership rights are transferred, a mortgage involves the transfer of specific ownership rights while retaining other ownership rights with the original owner.

Purpose for Securing a Loan: The primary purpose of a mortgage is to secure a loan, leading to a monetary obligation. Property transfer for any other purpose does not constitute a mortgage. For instance, transferring property to settle prior debts would not qualify as a mortgage.

Specific Identification of Property: The mortgaged property must be distinctly identifiable based on attributes such as size, location, and boundaries.

Possession May Remain with Mortgagor: The actual possession of the mortgaged property is not always transferred to the mortgagee. The mortgagor can retain possession while securing the loan.

Right to Property Returns to Mortgagor: After repaying the debt, the mortgagor regains full ownership rights over the mortgaged property.

Mortgagee's Right to Recover Debt: If the mortgagor fails to repay the loan, the mortgagee has the right to recover the debt by selling the mortgaged property.

Who is a Mortgagor?

A mortgagor is an individual or entity that borrows money from a lender, typically for the purpose of acquiring real estate, such as a home or other property. The mortgagor is the party that transfers an interest in a specific immovable property as collateral to secure a mortgage loan. The term is often used in the context of real estate transactions, where the mortgagor pledges the property as security to obtain financing for the purchase.

Mortgagors can secure different mortgage loan terms depending on various factors assessed during the loan approval process. Mortgage loans are considered secured loans, meaning they are backed by the collateral of real estate, and this collateral serves as a guarantee for the repayment of the loan. If the mortgagor fails to make timely payments, they may face foreclosure, which could result in the lender taking possession of the property.

For example, if an individual, 'A,' wishes to purchase a home and needs a loan to do so, 'A' becomes the mortgagor when they transfer an interest in the specific immovable property (the purchased home) to secure the loan. 'A' is responsible for repaying the loan according to the agreed-upon terms.

Who is a Mortgagee?

A mortgagee is a lender or financial institution that provides a mortgage loan to a borrower, commonly known as the mortgagor. In a mortgage transaction, the mortgagee is the recipient of the mortgage and holds the interest in the specific immovable property pledged as collateral. The term "mortgagee" is typically used in real estate and lending contexts, referring to the party that lends money for the purchase or refinancing of property and receives a security interest in return.

The mortgagee plays a crucial role in the mortgage process, as they have a legal claim on the mortgaged property until the borrower repays the loan in full. This legal interest ensures that the mortgagee has a right to take possession of the property and sell it if the mortgagor defaults on their loan payments. The mortgagee is also responsible for determining the terms and conditions of the mortgage loan, overseeing the servicing of the loan, and managing the title rights related to the property.

What is a Charge under the Transfer of Property Act?

The concept of a "Charge" under the Transfer of Property Act refers to an interest established over an immovable property to secure the repayment of a debt or obligation owed to another party. In essence, it is a financial encumbrance placed on a property without transferring ownership. Notably, not all charges are classified as mortgages, as the two terms are distinct. A charge serves as a legal mechanism to ensure the payment of a specified amount without necessitating a property transfer.

Key Elements of a Charge under the Transfer of Property Act:

Immovable Property: A charge must be linked to an immovable property, which can be either existing or future property belonging to the debtor. The intention is to create security that can be legally enforced.

Clear Specification: The property must be clearly identified and specified as collateral for the debt. Precise details about the property are vital for establishing a valid charge.

No Transfer of Ownership: Unlike a mortgage, a charge does not involve the transfer of property ownership or rights. It creates a personal obligation or the right to pay from the specified property.

Creation by Agreement: A charge can be created through a mutual agreement between the parties involved. It does not require specific technical language or formalities, but the intention to use the property as security must be evident from the agreement.

Operation of Law: Charges can also arise by operation of law, without the parties' explicit consent. This occurs when legal requirements compel certain obligations, even without the parties' intent.

Exceptions to Charges:

Two exceptions to charges are defined in Section 100 of the Transfer of Property Act:

Charges on Trust Property: A charge cannot be created on immovable property that serves as trust property for incurring expenses related to trust execution or maintenance.

Notice Requirement: If a property is transferred to a new owner without their knowledge of an existing charge on the property, the charge cannot be enforced against them.

Differences Between Charge and Lien:

A charge and a lien are distinct legal concepts:

Origin: A charge can be created by agreement or operation of law, while a lien arises solely by operation of law.
Applicability: A charge applies to immovable property, while a lien can pertain to both movable and immovable assets.
Possessory Nature: A charge is non-possessory, whereas a lien is possessory in nature.
Satisfaction of Claims: A charge holder can satisfy their claim by selling the property subject to the charge, while a lien holder can satisfy their claim through private sale or by retaining possession of the property.

Types of Charges under the Transfer of Property Act:

Two common types of charges are:

Fixed Charge: Created on specific, unchanging assets such as land, buildings, or machinery. The identity of the assets remains constant during the loan period, and the lender typically has significant control over them.

Floating Charge: Established on assets that can change or fluctuate, such as stock or debtors. These assets can be used in the ordinary course of business until the charge crystallizes, usually upon default or insolvency.

Registration of Charges:

Registration of charges is mandatory for corporations under the Companies Act, 2013. Companies must register charge particulars with the Registrar of Companies within 30 days of creating the charge. Failure to do so can render the charge void against the liquidator and other creditors. However, the charge remains valid until the company goes into liquidation.

If there is a valid reason for delay, the Registrar may condone it, allowing for late registration within 300 days of the charge's creation. The company can request an extension by submitting Form CHG-10 and providing a statement ensuring that the rights of intervening creditors are not adversely affected. In cases of continued non-compliance, the company can seek an extension from the Central Government under Section 87 of the Companies Act.

Case Law Examples on Charges under the Transfer of Property Act:

JK (Bombay) Private Ltd vs. New Kaiser-I-Hind Spinning and Weaving Co Ltd (1970 AIR 1041, 1970 SCR (3) 866): In this case, the court ruled that while a charge does not involve the transfer of interest or property, but rather the creation of a right for payment from a specific property, a mortgage, in contrast, entails the actual transfer of property or interest. The court emphasized that no specific wording is necessary to establish a charge; however, there must be a clear intention to create a property security for immediate payment.

Raychand Jivaji vs. Basappa Virappa Bellary (1940) 42 BOMLR 1113: The court in this case determined that it is sufficient to establish a charge if the document clearly indicates the intention to use the property as security for the payment of money, without transferring any rights or interests in the property.

Debi Singh and Ors. vs. Jagdish Saran Singh (AIR 1952 All 716): This case clarified that a mortgage is a legal arrangement in which a person borrows money, secures repayment, and pays interest by creating a right or charge in favor of the lender on their movable and/or immovable property.

Hasan vs. Mt Kalawati (147 IC 302, AIR 1933 All 934): The Calcutta High Court's decision in this case held that if an instrument is explicitly labeled as a mortgage and grants the mortgagee the power to recover the mortgaged money from the sale of the property, it should be treated as a mortgage. However, if the instrument does not overtly appear as a mortgage but instead establishes a lien or directs the recovery of money from a specific property without mentioning a sale, it creates a charge.

Understanding Sale under the Transfer of Property Act:

Definition of Sale under Transfer of Property Act: Sale, as defined under the Transfer of Property Act, refers to the transfer of ownership of a property in exchange for a price, whether paid, promised, partly paid, or partly promised. While the term "sale" is commonly associated with the purchase and sale of goods and services, under the Act, it specifically pertains to the sale of immovable property and is governed by Section 54 of the Transfer of Property Act, 1882.

Key Definitions from Section 3 of the Act: To fully grasp the concept of sale, it's essential to understand certain key definitions provided in Section 3 of the Transfer of Property Act:

Immovable Property: Immovable property includes all benefits arising from the land and objects attached to the earth but excludes standing timber, growing crops, or grass.
Instrument: Instrument signifies a non-testamentary, written document that formalizes a legal transaction, such as a contract, deed, bond, or lease.
Registered: Registered denotes that the document has been properly recorded in accordance with the provisions of the Registration Act, ensuring its legal validity.
Attached: Attached describes the physical union of two independent structures or objects, establishing a relationship between them.

Section 54 of the Transfer of Property Act: Section 54 of the Act offers a comprehensive definition of the term "sale" and outlines the manner in which the sale of immovable property can take place. In this context, sale implies the complete transfer of all rights in the property being sold, leaving no rights with the transferor.

Key Points from Section 54:

Sale involves the transfer of ownership in exchange for money consideration, whether paid, promised, part-paid, or part-promised.
It encompasses the sale of tangible and intangible immovable property, such as easement rights.

Contract for Sale: A contract for the sale of immovable property is a formal agreement that establishes specific terms between the parties involved. In this contract, the seller commits to selling or delivering the property to the buyer at a predetermined price agreed upon by the buyer. A contract of sale for goods is distinct from the sale of immovable property and is governed by separate laws.

Essentials of a Sale under Transfer of Property Act:

The essentials that must be met for a transaction to be considered a sale under the Transfer of Property Act include:

Parties: A sale involves at least two parties—the seller (transferor) and the buyer (transferee).
Competency: Both the seller and the buyer must be legally competent to enter into the transaction.
Money Consideration: Sale specifically entails the transfer of property in exchange for money, whether paid, partly paid, promised, or partly promised.
Conveyance: The transfer of immovable property can be accomplished through either a registered instrument or delivery of property, depending on the value of the property.
Registration: Sale deeds for tangible immovable property valued at Rs. 100 or more require registration under the Indian Registration Act, 1908.

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Rights and Liabilities of Buyer and Seller: Both the buyer and seller involved in a property sale have specific rights and liabilities:

The seller is obligated to disclose any material defects in the property or title, produce relevant documents of title, answer buyer's questions, and take care of the property until delivery. The seller must also pay any public charges, rents, or existing encumbrances.
The buyer must disclose any facts related to the property's value and pay the purchase money. The buyer bears the loss due to property damage, pays public charges and rents after ownership transfer, and retains encumbrance amounts if applicable.
The buyer is entitled to the benefits of property improvements, rents, and profits after ownership transfer, and may claim charges against the property for unpaid purchase money.

Understanding these elements and legal provisions is crucial for individuals involved in property transactions governed by the Transfer of Property Act.

Case Law Examples Related to Sale under the Transfer of Property Act:

Nahar Lal vs. Brijnath (1928 AC 385): In this case, the court ruled that if the registration of a document is carried out in violation of the provisions of the Registration Act, that document cannot be considered as duly registered. This judgment emphasizes the importance of adhering to the registration requirements outlined in the Registration Act for the validity of property documents.
Umakanta Das vs. Pradip Kumar Ray (AIR 1983 Ori 196): The court's judgment in this case pertains to the content of a sale deed. It states that if a sale deed includes a condition stipulating that the price will be paid within one year, contingent upon the buyer obtaining possession within that timeframe, and if possession is not acquired, the payment of the price will be deferred. Similarly, if the vendee does not gain possession of the property, the payment of the price may be withheld. This judgment clarifies the implications of such conditions within the context of a sale deed.
Raheja Universal Ltd. vs. NAC Ltd. (2012 4 SCC 148): In this case, the court elucidated that a contract for the sale of immovable property or an agreement to sell constitutes an agreement specifying the terms on which the sale of the property will occur. Such an agreement, in itself, does not create any interest or charge on the property. This judgment highlights the distinction between a contract for sale and the actual transfer of property, emphasizing that the former does not confer ownership rights.
Misabul Enterprises vs. Vijaya Srivastava (AIR 2003 Del. 15) : The judgment in this case underscores the necessity of a mutual agreement between the seller and the buyer in a contract of sale. It emphasizes that a valid contract of sale should be based on the consensus and understanding of both parties involved. This principle reinforces the fundamental requirement of mutual consent in property transactions governed by the Transfer of Property Act.

Gift Under the Transfer of Property Act:

Definition of Gift under the Transfer of Property Act: A gift under the Transfer of Property Act is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, referred to as the 'donor,' to another person, known as the 'donee,' and accepted by or on behalf of the donee. The donor is the person transferring the property, while the donee is the recipient of the gift.

Essentials of a Gift under the Transfer of Property Act:

Involvement of Two Persons: A gift must involve two parties—the donor and the donee. The donor must be of sound mind, competent to make a gift, of the age of majority, and not disqualified by law.
Voluntary Transfer: The gift should be made voluntarily, without any undue influence, coercion, or force. It must be a result of the donor's free will.
Transfer of Ownership: A gift entails the transfer of both the property and its ownership, along with all associated rights and liabilities.
Existing and Transferable Property: The property subject to the gift must exist at the time of the gift, and it must be transferable. Gifts of uncertain or future assets are not valid.
Living Donor and Donee: Both the donor and the donee must be living at the time of the gift. If the donee dies before accepting the gift, the gift becomes void.
Gift Deed: A gift should be documented through a gift deed, which declares that the gift is voluntary and without consideration. It also affirms the donor's solvency.
Acceptance by Donee: The donee must accept the gift, and this acceptance should be recorded in the gift deed. Acceptance must occur during the donor's lifetime; otherwise, the gift may become invalid.

Void Gifts under the Transfer of Property Act: Gifts can be rendered void under various circumstances, including:

The donee dies before accepting the gift.
The gift is made for an illegal purpose.
A condition imposed on the gift is forbidden by law or is unlawful.
The donor or donee is incapable of making or receiving a gift, such as being a minor or of unsound mind.

Universal Donee: A universal donee, as defined in Section 128 of the Transfer of Property Act, means that when a transfer is made, the entire property of the donor, along with all debts and liabilities at the time of the transfer, is transferred to the donee. The donee becomes personally liable for these debts and liabilities.

Onerous Gift: Onerous gift, as defined in Section 127 of the Transfer of Property Act, pertains to a situation where a gift is made in one transfer to the same person with several items. In such cases, the donee has the option to accept one item and reject the others. This concept is based on the principle that one who receives a benefit must also bear the burden.

Creation of an Effective Gift: According to Section 123 of the Transfer of Property Act, the transfer of immovable property by way of gift must be executed through a registered instrument or on behalf of the donor, and it must be attested by at least two witnesses. For movable property, either a registered instrument or delivery of possession is sufficient.

Grounds for Revocation or Suspension of a Gift: Section 126 of the Transfer of Property Act provides grounds on which a gift can be revoked or suspended, including:

Coercion or undue influence in obtaining the donor's consent.
Dependency of the gift's validity on a specified event not subject to the donor's will.

Case Laws related to Gift under Transfer of Property Act:

Padma Chand vs. Laxmi Devi, 2010 (173) DLT 604: The court held that a gift is a voluntary transfer of property without any consideration, carried out by the owner of the property, resulting in a transfer of ownership without pecuniary benefits.
Vimala vs. Narayanaswamy, 1996 ALHC 4170 KAR : The court ruled that when a document is intended to take immediate effect, transferring the property during the executor's lifetime, it constitutes a gift deed rather than a will.
D.N. Dawar vs. Ganga Ram Saran Dhama, AIR 1993 Del.P 19: In this case, the court emphasized that for the gift of immovable property, mere delivery of possession is insufficient to transfer title if the document is not registered.
Shahdev vs. Sheikh Papa (1905) 29 Bom: The court held that gifts of immovable property are compulsorily registerable and serve as notice to subsequent transfers, although they may not apply to transactions preceding registration.

Lease in Transfer of Property Act:

Definition of Lease under Transfer of Property Act: A lease of immovable property, as defined under the Transfer of Property Act, is the transfer of the right to enjoy such property for a certain period, either express or implied, or in perpetuity, in consideration of a price or promise, or money, a share of crops, services, or any other valuable consideration, to be periodically rendered or on specified occasions, to the transferee (donee) by the transferor (donor). Lease-related provisions in the Transfer of Property Act, 1882 are covered from Section 105 to Section 117, and a lease can only pertain to immovable property.

Lease under the Transfer of Property Act: Section 105 of the Transfer of Property Act provides the definition of a lease, stating that it involves the transfer of immovable property for a specific duration, in consideration of which the transferee accepts the terms and conditions specified in the agreement. The Transfer of Property Act, 1882, governs leases, encompassing Sections 105 to 117.

Key Parties in a Lease:

Lessor: The transferor, or person granting the lease, is referred to as the lessor. The lessor retains ownership of the property but transfers the right to possession and enjoyment to the lessee.
Lessee: The transferee, or person receiving the lease, is known as the lessee. The lessee gains the right to possess and enjoy the property for the agreed-upon duration.

Essentials of a Lease under Transfer of Property Act: To constitute a valid lease under the Transfer of Property Act, certain essential elements must be met:

Competent Parties: Both lessor and lessee must have the legal capacity to enter into a contract. The lessor should be the rightful owner of the property and mentally competent, not disqualified by any legal provisions.
Right of Possession: A lease involves the transfer of the right to possess and enjoy the property while retaining ownership with the lessor. It differs from a sale where ownership is also transferred.
Consideration: A lease must involve consideration, which can be in the form of rent or premium. It represents the price paid or promised for the transfer of possession and enjoyment.
Acceptance: The lessee must accept the terms and conditions of the lease agreement, acknowledging the transfer of rights and responsibilities.
Specified Time Period: A lease always has a defined duration, which should be mentioned in the lease agreement. While the time period can be relaxed at the option of the lessor, it is generally specified.
Right to Enjoy: The lessee gains the right to enjoy the property for the agreed-upon duration but does not acquire ownership rights. The property may not be further transferred without the lessor's consent.

Termination of a Lease: A lease can be terminated through various means as stipulated in the Transfer of Property Act:

Lapse of Time: The lease terminates upon the expiry of the specified duration mentioned in the lease agreement.
Specified Event: If the lease is based on the occurrence of a particular event, it terminates when that event takes place.
Interest Termination: When the lessor's interest in the property is terminated or disposed of, the lease also comes to an end.
Same Owner: If the interests of both the lessor and the lessee merge into one, the lease is terminated.
Express Surrender: When both parties mutually agree to terminate the lease before its stipulated duration, it can be surrendered.
Implied Surrender: If the lessee enters into a new lease agreement with another party, it implies the surrender of the existing lease.
Forfeiture: A lease can be forfeited if the lessee breaches a condition, conveys the title to a third party, or becomes bankrupt, depending on the terms of the lease.

Notice to Quit and Its Implications: A notice to quit is a formal written statement issued to the lessee by the lessor when the lessee intends to terminate the lease agreement, either on the grounds specified in Section 111 or upon the expiry of the duration mentioned in Section 106. The notice to quit can be waived, either expressly or implicitly, as described in Section 112. The waiver indicates the intention to continue the existing lease.

Effect of Holding Over: Section 116 explains the effect of holding over, where the lessee retains possession after the termination of the lease. If the lessor accepts this, it is not considered a new lease but rather a continuation of the existing one. The lease becomes renewable, typically as a monthly or yearly lease, based on the terms outlined in Section 106.

Case Laws related to Lease under Transfer of Property Act:

State Bank of Hyderabad vs. Nehru Palace Hotels, AIR 1991 SC 2130: In this case, the court upheld that a lease involves the transfer of the right to enjoy property for a specified duration, in consideration of a price paid or promised, be it in cash or any other valuable consideration.
Bengal A & I Corporation vs. Corporation of Calcutta, AIR 1960 Cal 123 (133): The court held that the subject matter of a lease must be clearly defined and ascertainable. A lease cannot be valid when the land is yet to be identified and carved out of a larger parcel of land.
Jaswant Singh Mathura Singh vs. Ahmedabad Municipal Corporation, AIR 1991 SC 2130: In this case, the court determined that a lease grants a right or interest in enjoying the demised property, and the tenant has the right to retain possession until legally terminated and evicted in accordance with the law.

Important PYQs of Transfer of Property Act for Judiciary

1. An unequivocal and irrevocable settlement conferring enjoyment rights over the property in present and each getting a specific share in it upon the death of the settlor would create:

A. A contingent interest in favour of each of the beneficiary

B. A vested interest in favour of each of the beneficiary

C. Either A or B depending on the facts of the case

D. Neither A nor B, as it would be void

2. B gifts a share of business to A on the condition that in case B does not like the future daughter-in-law of B, the property will revert back to B. Which of the following statements will apply?

A. The gift and condition and valid

B. The gift is absolute, condition is invalid and discarded

C. The gift is void in totality

D. The gift is valid in case B’s son choose not to marry

3. B makes a gift deed in favour of A. The gift deed contains transfer of three houses unburdened by obligations, two houses which are mortgaged with C, two cars under the hire purchase agreement and three horses, one of which is lame. Which of the following statements will apply?

A. A can accept the whole gift, he has an option to accepting or not accepting the lame horse

B. A must accept the whole gift or refuse the same

C. A can choose to take gift of three houses and avoid all the rest

D. A has a choice to take over movable property and avoid immovable property

4. B makes a gift of residential house comprising of three distinct units, one each to D, E and F. E refuses the gift. Which of the following statements will apply?

A. One unit will default back to B

B. The house will be divided equally between D and F

C. E will continue to own one unit

D. None of these

5. B transfers some property to C with a condition that in case A marries during B’s lifetime the property will go to B. A marries during B’s life. Which of the following statements will apply?

A. The transfer to C is void and property reverts back to B

B. The transfer and condition are valid, and the property will transfer to A

C. The transfer is valid, but condition is invalid property remains with C

D. The transfer is voidable at C’s option

Tips to prepare Transfer of Property Act for Judiciary

Transfer of Property Act for Judiciary exams is important. However, you must understand the concepts thoroughly to score better in the examination. Here are quick tips for preparing for Transfer of Property Act for all state Judiciary Exams:

Go through the previous year's papers and make a comprehensive list of all the topics that were asked in the previous years.
Once you have done that, make sure that you read this article and download the notes for your preparation.
Read from reliable sources, and start making your own notes.
Include examples, explanations and essential case laws.
This will help you in developing a better understanding of all the subjects.
Make sure that your notes are brief; make short notes while covering all the essential topics and details.
After making notes, make sure you revise everything 2-3 times at least.
Practice PYQs and sample questions to test your knowledge on a regular basis.

Conclusion:

To prepare Transfer of Property Act for Judiciary you should make sure that all the important topics of Transfer of Property Act are covered by you and you make notes for yoursef\lf.
For revision you should prefer reading your notes majorly.
Reach out to your mentors and faculties in case you find difficulty in making a strategy to study for Transfer of Property Act.

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Case Study 5 - Transfer of Property Act 1882

Mr. A, a Hindu , who has separated from his father Mr. B, sells to Mr. C three fields , F1,F2 & F3 representing that he himself is authorized to transfer the same. Of these fields transferred F3 does not belong to Mr. A , it has been retained by his father Mr. B at the time of partition. On death of Mr. B , Mr. A being legal heir obtain the possession of field F3 and immediately sold the F3 to Mr. D.

Discuss rights of Mr. C & Mr. D.

Case Study 5 - Transfer of Property Act 1882

Section 43 of Transfer of Property Act, 1882 provides that

Transfer by unauthorized person who subsequently acquires interest in property transferred.

Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

The general rule of law is "nemodat quod non-habet"i.e. no one can transfer that which he himself does not have. If a person does not have title to property, he cannot transfer that property validly transfer to another person.

One of the exceptions to this rule is contained in Section 43 of the Act, 1882 as mentioned above.

The principle of this section is based on partly doctrine of estoppel and partly on the equitable doctrine that a man who has promised more than he can perform must make good his promise when he becomes capable of performance. Under Section 43 the only person who can defeat the right of an original transferee is a subsequent transferee for consideration who does not have the notice of previous contract. Where transfer deed is registered , it is considered as a notice to the whole world.

In case where transfer deed is not registered , the subsequent transferee has below mentioned remedies;

i) He can file a case for breach of contract against the transferor and can obtain damages; ii) He can file a criminal case of cheating against the transferor; iii) He can claim the money paid by him to the transferor through appropriate action in a court.

We conclude as follow

1. In the given case Mr. A has mad a representation to Mr. C about his title to the filed F3, here the doctrine of estoppel becomes operational. In case the Sale Deed with Mr. C has been registered ,it operates as a Constructive Notice to Mr. D and the whole world related to filed F3 and Mr. D in this case cannot defeat right of Mr. C claiming for field F3.

2. Mr. D has right to file civil suit for recovery of his money against Mr. A or he has right to file a criminal case also.

3. If Sale Deed between Mr. A and Mr. C is not registered , Mr. D being subsequent transferee for consideration will defeat the right of Mr. C.

4. In this case Mr. C has same right to sue Mr. A for recovery of money in civil suit or file a criminal case also.

It is a well-established fact that a person cannot transfer to another person more than he has or a person cannot transfer to another person what he does not has at the time of transfer. The provisions of Section 43 also provides that in a case when a person subsequently acquired any right in a property transferred earlier ,then he is obliged to transfer the same to the transferee in case contract of transfer subsists.

DISCLAIMER: The case law presented here is only for information of readers. the views are personal. In case of necessity do consult with professionals.

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Transfer by Co-owner under the Transfer of Property Act: An Analysis

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LLM Student at Chanakya National Law University, India

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Transfer by co-owners means when two or more persons hold title to the same property and the transfer a portion of share, the transferee takes the place of transferor who has transferred his share. However, in case of co-owner of dwelling house does not give the right to joint possession to transferee. This paper deals with transfer by co-owners under Transfer of Property Act, 1882. Section 44 to 47 of transfer of property act lay down rules applicable to transfers effected by co-owners. Further it discusses about legal competency to make transfer and about its applicability. It covers the rights and liabilities of transferee and discusses about the kinds of co-ownership. It also deals with the exception part in the context of transfer by co-owner which is under section 44. Further it also covers the concept of joint transfer and transfer by co-owners in common property.

Liabilities
Transfer of Property Act

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 237 - 251

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

I. Introduction

Here the term property in general way indicates the economic status of a person. Such property is held by any person to take out benefit from it. There are various ways in order to transfer property from one person to another like it can be inherited, can be bought by giving the full payment of it. And in India law governing transfer of property under the rules of Transfer of Property Act, 1882. This act is an Indian legislation which governs all rules and procedures regarding transfer of property. Various types of property are as movable, immovable, corporeal and incorporeal etc. Transfer of movable property mainly governed by the sales of Good Act, 1930 whereas in case of immovable which is in between living persons is governed by the Transfer of Property Act, 1882.

In general way transfers are made by owners themselves, ostensible owners and the co-owners or Joint owners. For example, in case of Coparcenary where two or more persons enjoy common ownership and enjoyment of property like all Coparcener including all male members and now even daughters have a common and an equal interest in the ancestral property, so any co-owner can transfer his interest in the share of property to any stranger or may be another co-owner. And after this that transferee steps in the shoes of the co-owner (transferor) and gets clothes with all his liabilities. Hence that transferee becomes new co-owner. Section 44 to 47 of transfer of property act, 1882 deals with aspect of transfer by co-owners, section 44 which specifies about transfer by one co-owner and the rights of a transferee in case of this type of property. The second part of this section lays down an exception to this rule. The object of this exception is to prevent a stranger from claiming a joint possession of a family of dwelling house. The terms Co-owner states where co-owner may be either joint tenant or tenant in common under English law.

Section 45 deals with the question as to what quantum of interest each one of the several transfers under a transfer gets in the property transferred. When a Transfer for consideration is made to two or more persons jointly, they will become co-owners transferred their interest. It lays down a presumption as to the quantity of interest taken by co-owners who have paid consideration for acquisition. Section 46 deals with the question as to what interest each of the several joint transferors gets in the consideration for the transfer.

Section 47 which lay down principle regarding transfer of property by co-owners of share in common property, in which effect of transfer is to reduce their shares proportionately. It refers to tenancy-in common and this section helps while ascertaining the shares of co-owners.

Through this paper, the researcher has specifically dealt with the concept of transfer by co-owners and subsequently in the light of rights and liabilities of transferee and also the exception rule which embodied under section 44 of this act. This paper also dealt the intricacies related to the same in the light of different judicial interpretations given time to time by different courts.

Brief Background

Earlier transfer of goods was regulated to an extent by Indian contract act, 1872 whereas in case transfer of Immovable property which governed by the principles of justice, equity and Good Conscience. But after growing the extent of trade and commerce rapidly increase the infrastructure in the late 19 th century led to more conflict in business sector. There were various problems regarding pragmatic law of property and also some peculiar problems related to exchange of goods and transfer of property. Hence an immediate need was felt for clear cut law related to transfer of property and to take care of the potential economic problems. So, the enactment of this Indian legislation fell upon the First and second law commission.

Defining Co-Owners

In general way Co-Owner of a property in most cases is a member of the same family. In other way Co- Owner can be appointed by a will written in his favour. Every Co- Owner may either own equal rights to use the property like others or may have a portion of the property in his name. There is situation where more than two Co-Owners of the same property and one of the Co-Owners dies, his share automatically passes to his dependents or to other Co-Owners. [2] E.g., an ancestral property is inherited by three brothers, and these three will be Co-Owners of the property. In case one of them dies, then his share of the property passes on to two surviving brothers or may be his dependents along with rights. Co-Owner is entitled to three basic elements of Ownership under the Law:

Right to possession
Right to use, and
Right to dispose of the Property.

II. Kinds of ownership under co-owners

The word ‘Ownership’ consists of innumerable number of rights, liberties and powers with regard to thing owned. It has different kinds of Ownership as absolute, limited, sole ownership, co ownership, vested ownership, contingent ownership, Corporeal and incorporeal. When in case where a person owns a property in one time it is called sole ownership, whereas such property is owned by more than one person then in that case it is called as Joint ownership. But here Co ownership can turn into sole ownership by means of partition.

As the word ‘Co-Owner’ is wide enough to cover all kinds of ownership such as Joint tenancy, Tenancy in common, Coparcenaries, undivided Hindu family members, etc. Here the fact that regarding property that the parties have certain shares, indicates that they are Co-Owners. A Co-Owner is entitled to three essentials of ownership under Indian Law- Right to possession, enjoy and to dispose. Hence, in case a Co-Owner is deprived of his property, he has a right to put back in possession. In this aspect such co-owner has an interest in every part of property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.

Here these are the following types of co-ownership:

Tenants in Common : In this aspect co-ownership is not specifically stated and each tenant in common has a separate fractional interest on whole property. Though each tenant in common has a separate interest in that property and possess and use the entire property. It may hold unequal interest in the property but the interest possessed by each tenant in common is a fractional interest in the entire property. So, each tenant in common may freely transfer their interest in the property. [3] Here Tenants in common don’t have right of survivorship. Hence after death of any tenant in common their interest passes via will or through intestate laws to another person who will become new tenants in common with the surviving co-owners.

Joint Tenants : In this aspect it has right of survivorship. That means after death of one joint tenant his share/interest immediately passes to the surviving joint tenants and not to the decedents. It basically holds a unitary interest on whole property. Here each Joint tenant must have equal share in the property. There are certain features of Joint tenancy that is also the requirements of joint tenancy are as follows:

Unity of possession- each tenant is entitled to the possession and enjoyment of whole land.
Unity of Interest- Each joint tenant has same type estates and same duration.
Unity of time- joint tenancy interest must vest at the same time.
Unity of title- Interest of joint tenancy must derive by the same instrument like will or deed.

In case if any one fails to perform their part, then joint tenants automatically convert into tenants in common.

Joint tenancy implies unity in titles as well as unity of possession whereas Tenants in common signifies only the unity of possession. In case of Joint tenancy co-owners hold property upon the death of any of them his interest goes to the survivors but in tenants in common after death shares goes to his heir or representatives. Both concepts are of English Law. Except in case of Coparcenary between members of a Hindu Undivided Family, the concepts of Joint tenancy are unknown in India. [4]

Tenancy by the Entirely : This concept of co-ownership is for Husband and wife. It provides right of survivorship. It requires all four unites like unity of time, possession, title and Interest and also fifth unity of marriage. Tenancy by entirely does not allow spouse to convey his interest to third party whereas one spouse can convey his interest to another spouse. It may be terminated by divorce, death or mutual agreement by both spouses.

III. Transfer by one co-owner

In such a case where a property is jointly owned by two or more persons and each co-owner may have equal or unequal shares, but until partition is affected and their respective shares are separately possessed, every co-owner is entitled to common enjoyment of property. Section 44 of the Transfer of Property Act, 1882 deals with aspect of transfer by one co-owner, further it also provides the rights of transferee such type of transaction.

The principle of this section is that where a co-owner transfers his shares, the transferee is substituted in place of transferor. It substitutes in the property to the extent of share transferred to him. Here transferee too is entitled to common enjoyment of the joint property together with other Co-owners. Such transferee steps into the shoes of the transferor. It means transferee will acquire all the rights and liabilities which the co-owner [transferor] has in that Joint property at the date of transfer.

The object of this section as well as Section 4 of partition act 1893 is to keep off strangers who may purchase the undivided share of a co-sharer of an immovable property, so far as dwelling houses are concerned to make it possible for a co-sharer who has not sold his share to buy off the stranger purchaser. [5]

This section assures the transferee the right to joint possession or common enjoyment of the property, but does not confer on him any right to exclusive possession without enforcing partition. [6]

Law as to Co-Owners

Several Co-Owners hold any immovable property, each co-owner has interest in every portion/inch of the common property whereas his interest is qualified and limited by similar interest of the other co-owner. A co-owner by an express or implied arrangement, possess and enjoy any property exclusively and protect his possession against other co-owners. [7]

IV. Legal competency to make transfer by co-owner

The word “legally competent” is in paragraph 2 of section 44 of transfer of property act can be study with respect to Section 7 of the transfer of property Act, 1882 states that every person competent to contract that means a major and of sound mind or is not disqualified by law for contracting. Hence even the interest of a co-owner can be transferred, mortgaged, leased to another co-sharer or to a stranger. Here the fact that partition has not taken place by metes and bounds does not stand in the way of the interest of a co-owner.

As per law prevails in some areas, a coparcener of a Hindu Joint family can alienate his share in the Joint family property for consideration [Section 45]. In that case such Coparcener is a legally competent person whereas in case of Mitakshara coparcenary, the consent of other coparcener is required before any such transfer. In other cases where one co-owner is in exclusive possession of a joint land plot lets it out to a tenant without the consent of co-sharer landlords, such a tenancy will not bind the latter. In such a case the Lease will only be confined to the interest and share of the lesssor.

In case Baldev Singh v. Darshan Devi [8] where a co-owner who is not in actual physical possession over parcel of land cannot transfer a valid title of that portion of the property. Here the remedy available to the transferee would be to get a share out from the property allotted after the partition or to get a decree for joint possession or can claim compensation from the co-owner.

In case Rukmani and others v. H.N.T. Chettiar [9] where a co-sharer cannot be allowed to cause prejudice to the other co-shares by putting up a substantial construction during the pendency of a suit for partition filed by the other co-shares.

A case of Punjab and Haryana high Court Hazara Singh v. Faqiria [10] where a co-owner contention that he had, by adverse possession, a peaceful undisturbed possession by the other co-owners had become the sole owner of a land, held that the possession of a co-owner is possession of all the co-owners. It cannot be averse to them unless there is a denial of their right to knowledge by the person in possession. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse he possesses the property on behalf of all others.

V. Rights and liabilities of transferee

As per section 44 of transfer of property act which also deals with the rights of a transferee and also safeguards their rights. Here the transferee steps into the shoes of his transferor that means the Co-Owner and further is clothed with all the rights and become subject to all the liabilities of his transferor. It basically becomes as much a co-owner as his transferor was before the transfer.

Here the Transferee from a co-owner acquires rights like i.) a right to Joint possession of the property [11] ii.) a right to enforce partition as against other co-owners [12] . Other rights include right to make improvements and right to peaceful possession.

Right to Joint Possession : Each Co-owner has proprietary right in whole estate. Here transferee becomes the co-owner and getting all rights like joint possession in property except a dwelling house. In case where a co-owner or his transferee is ousted from joint possession, then he is entitled to get joint possession by a suit, and not necessary forced to sue for partition.

Right to peaceful possession : Here co-owner transfers his separate plot and transferee gets possession on that remaining part of co-owner, his transferee cannot be disturbed by the other co-owners until and unless a final partition takes place. So, a tenant of a land who derives his title from all co-owners cannot be disturbed by one co-owner without consent of all.

Right to make Improvements : In order to make construction on any part of land, co-owners can make out and he is allowed to do so. Whereas he is not entitled to do construct on any other portion of joint property or to the detriment of others co-owners.

Right to enforce Partition : As in every case of Joint partnership, each party has a right to demand partition that means a right to be placed in a position to enjoy his own right separately without any interference and interruption. As this section 44 applies all transfer including sales and mortgages or lease. Here a lessee of an undivided share can maintain a suit for partition [13] , a mortgagee [14] and even a life tenant is entitled to seek partition subject to condition that it gives effect to the transfer. Now a monthly tenant was also allowed to enforce a partition there was no probability of the lease being determined. [15] In a suit for partition there must be unity of possession and unity of title [16] . A claim for partition can be refused on the ground of inconvenience [17] after fulfilling conditions.

In case of Partial partition that prevents the working out of equities between the co-owners is not maintainable. The purchaser of a co-owner’s share in one particular item of property can file a suit for recovery of that share in the item without filing a suit for general partition. [18]

Muslim co-heirs and partial partition : In such a case where property has devolved on several co-heirs under the Mohamedan Law, definite fraction of every part of estate entitles to all co-hires. Then one of co-heirs can ask for recovery of his share of the common property by another co-sharer. [19]

Rights of purchaser of a Hindu coparcener’s interest : Here this concept says the purchaser of the interest of a coparcener in a Hindu Joint Family acquires as against the other coparceners the right to institute a suit for general partition. [20] The Madras High Court holds that such a purchaser has no right to joint possession. [21] His right to partition may be worked out in suitable case for recovery of possession by the non-alienating coparceners [22] as well as alienating coparceners. [23]

Co-sharer’s suit against trespasser : Here a co-owner has right to sue a trespasser in ejectment without impleading the other co-sharers. A tenant on sufferance is on the same footing as a trespasser. [24]

Claim to mesne profits against a co-sharer : where the possession of entirely joint property by a co-sharer is not wrongful. Thus, the co-sharers who haven’t taken any action to take possession cannot claim mesne profits.

Condition and Liabilities

As per section 44, the words ‘subject to the conditions and liabilities’ affecting at the date of transfer, the interest transferred which save principles established by Mitakshara law, that the right of an alien is only to institute a suit for partition, to work out his equities subject to the charges and encumbrances affecting the coparcenary property at the time of transfer.

As the transferee takes subject to all the liabilities by acquiring rights and bound by any condition and liabilities affecting the interest of transferor at the date of transfer. So, a purchaser of a share is of course not liable for the damage caused to the rest of the property by the transferor after the date of transferor. [25] Thus the vendor’s pious obligation to discharge his father’s debts will attach to his interest even in the hands of the alien. [26]

Alienation of Property by Co-owner : In that case the parties mutually divide their properties to reach an compromise decree and coparcenary came to an end after preliminary decree, alienation of his share by one co-owner has not alienated property in excess of his share. [27]

VI. Role of dwelling house and undivided family

This concept basically is an exception to the rule provided in the first part of section 44 of transfer of property act, 1882. Any co-owned property in which family members of the co-owners are living together where co-owner has right to transfer his share but transferee is not entitled to have common enjoyment or joint possession of the property. [28] Section 44 says that the co-owners right to joint possession, other common or part enjoyment of the property transferred will not be available to the transferee where such property is a dwelling house belonging to an undivided family and such transferee is not the member of that family. He only gets the share in a residential house belonging to a family member of a joint family not entitled to joint possession.

Object of this exception : This exception has been created in order to avoid inconvenience which may be caused by substitution of a stranger in joint family who may be of different caste, religion etc.

In the words of Westropp C.J., in Bombay case [29] , “We deem it a far safer practice, and less likely to cause serious breaches of peace, to leave a purchaser to a suit for partition, than to place him by force in joint possession with the members of a Hindu family, who may be not be of different caste for his own, but also different in race and religion.’’

Here restriction contained in this section for stranger is applicable even in that case also where there is only one male member of family in occupation of family dwelling house.

For granting relief under section 44 of transfer of property act, 1882 there must be two things satisfied:

The property should be a Dwelling house
The transferee should not be member of the family

Here transferee’s (stranger) right to have the house partitioned is, subject to Section 4 of the Partition Act, 1893. Where this section provides stranger to claim partition by metes and bounds may be compelled, at the option of the other members of the family to forego his legal right to partition and accept pecuniary compensation. The Partition act 1893, gives the coo-sharer the option of buying out the transferee at a valuation to be made by the court. [30]

Dwelling house : Taking the reference to the partition act, 1893 the term ‘Dwelling house’ means not only residential structure or building but it includes all the adjacent buildings, gardens, cartilage, Court yard, orchard and all which are necessary for the convenient use of the house. [31]

In case the dwelling house does not belong to an undivided family, section 44 of the transfer of property act, 1882 is not applicable. [32] Here the word ‘undivided family’ in Section 44 is not limited to Hindus, but includes such group of people related in Blood who live in one house under one head, and that it applies if they are undivided qua the dwelling house which they own. [33] In this a co-owner transfers his shares by way of sale, lease, gift or mortgage, section 44 will be applicable. But partition is necessary to give effect to the mortgage if the transfer is in nature of mortgage and in case of lease where lessee of an undivided share too has right of partition.

In a case where, a share of a house is transferred by way of lease which is used by all members of family then the lessee must get his part partitioned. Further if transferee is unable to get his part partitioned then in that case other co-owner may have right to restraint the lessee from getting possession of the house with others. In case Ashim Ranjan Das v. Bimal Ghosh [34] a house was in common enjoyment for Hindu undivided family members where a co-sharer leased out his share without effecting partition then after this the stranger lessee (tenant) attempted to enter into possession jointly with members of family. In which court held that interim injunction restraining the stranger lessee can be granted.

However, in case of Delhi High Court where ‘A’ entered into premises followed by his mother and brother who joined him later on and the government first granted licence and subsequently executed lease in his favour. Court held that A’s (lessee) mother and brother were not co-tenants and A was entitled to the possession of the whole premises including the portion of his mother and brother. It was observed by the court further that filing of suit by A for possession of portion which is in his mother and brother’s possession did not means that ‘A’ was not the lessee of the whole promises. [35]

Such house characterized as a dwelling-house belonging to undivided family is not altered by the mere fact that an undivided share is transferred to a stranger who comes into possession and collects rents from the portion of the tenants. [36]

This section affords defence to the members of a joint family but it does not create a positive right in them.

Effect of Partition Act, 1983 : Section 4 of this act plays a vital role in transfer by co-owner and to give rights and liabilities. Object of this section 4 of this act is to keep off strangers who may purchase the undivided share of a co-sharer of an immovable property, so far as dwelling houses are concerned to make it possible for a co- sharer who has not sold his share to buy off the stranger purchaser. [37]

Here co-sharer has right of pre-emption under section 4 of partition act not under section 44 of transfer of property act, 1882. There is a case where such question was raised like “where co-sharer has right of pre-emption? In the case P.C. Mallik v. Renuka Jain [38] there is no law which stipulates that a co-sharer must sell his property to another co-sharer. Hence Strangers and outsiders can purchase share of a co-sharer even in a dwelling house but he gets no right to joint possession or common enjoyment of the portion of the house so purchased. He has to file a suit for demarcation of his share and also delivery of possession.

Thus section 4 of partition act also would defend Joint so-sharers, that means it gives liberty to repurchase the share sold to stranger or outsiders. Here right of pre-emption is there but with subject to conditions of this act. A co-owner who has transferred his interest to outsider does not have right of pre-emption. He can’t re-purchase the share sold, then in that case where court shall evaluate the share in money value and shall ask the person claiming pre-emption to pay it to the outsider.

VII. Concept of joint transfers

Concept of Joint transfer aspect deal in section 45-46 of transfer of property act, 1882. Such transfer for consideration to two or more persons jointly makes them co-owners of the property. In case the consideration is paid out of a common fund their shares would be same as their interest in common fund.

Section 45 which deals with quantum of interest of each transferee and its determination, where there are several joint purchasers of immovable property. This section is not applicable to gifts and bequests but applicable to involuntary transfers and revenue sales. As per this section 45 which is made applicable to the involuntary transfer on the ground of justice, equity and good conscience. [39] Presumption of equality is there in that case where absence of any evidence to be contrary, then shall be presumed to be equally interested in the property. this section does not specify about property shares like whether they take as joint tenants or tenants in common, should be determined by reference to their personal law.

Section 46 which lays down that the transferors of property entitled to share in the consideration as per their respective interests in the property transferred. Hence, this section is the converse of section 45, due to the concept of transfer by persons with distinct interests. Thus, it basically deals with the question as to what interests each of the several joint transferors gets in the consideration for the transfer.

Transfer by co-owners

Section 47 incorporates with such concept where several co-owners transfer without specifying then the share of each co-owner is reduced proportionately. This section is thus helpful in ascertaining the shares of the co-owners in the property retained after the transfer. This section is an application of the principle of equity that equality is equity.

As this section helps by predicting a possible difference in quantum of the interests of the co-owners, it is clear that it deals with tenants in common.

In Mir Ali Nawaj v. Mir Ali Asghar [40] , two zamindars had equal shares in a property, one holding absolute interests and the other, life interest only. Half of the entire property was transferred by them. On the death of life interest holder his heir sued for partition. Court held that the vendee had taken 1/4 th from each Zamindar so that the heirs were entitled to 1/4 th only.

VIII. Judicial approach

Dorab Cawasji Warden v. Coomi Sorab Warden [41]

Facts: a property was purchased by father and mother of Plaintiff. Later on mother became died then appellant and his father became joint owner of the entire property. Further they converted joint tenancy into a tenancy in common. Later on father transfer his undivided share into the property to his another son. Hence the appellant and his brother became tenant in common in respect of the property but on the death of the brother, his widow and two minor sons sold their undivided share in the property. The appellant instituted a suit against his brother’s wife and children on the ground that the suit property was a dwelling-house belonging to an undivided family wherein they all lived in their respective portions. Here after sale, the buyer had no right to live as a tenant in common with the appellant.

Decision: the court held that this transfer would come under the other second paragraph of section 44; therefore, the buyer has no right to live in dwelling house. Here court also observed that irreparable injury is likely to be caused by the entry of transferee and balance of convenience was in favour of appellant, interim injunction against vendors and vendees regarding possession can be issued.

Here basically happens a particular part of share is transferred without partition and the transferee does not maintain suit for partition whereas attempts to take possession of his share, then in that case other co-owners may restraint that person from taking possession. Section 44 second paragraph which lays down exception rule for transfer of co-owners under this act, the object of this part is basically to avoid inconvenience for other co-owners which may be caused by substitution of a stranger. That stranger may be from different caste, religion and race, and then other co-owners of transferor’s family have a right to live in dwelling house.

Rukmani v. H.N.T Chettiar [42]

Facts: Here transferee had purchased only 2/3 rd share in the suit property from one of the co-owners then that transferee further proceeded to put up huge constructions on property without having partition by metes and bounds. The plaintiffs, means other co-owners wanted an injunction for restraining the transferee from doing so then Single judge of court refused to grant injunction. But when the matter came up before the Division bench overruled the above judgment it didn’t approve above view and grant injunction.

Issue: whether a co-sharer (the transferee) having 2/3 rd share in property could be allowed to put up constructions or not…?

Decision: Madras High Court held that transferee, being a co-sharer, cannot be allowed to cause prejudice to the other co-sharers by putting up constructions during the pendency of a suit for partition filed by the co-owners.

Court also observed here certain situation like if transferee claims to have acquired full title to the suit property, then in such case court can prima facie on that basis of his full title court can permit him to put up the constructions at his own risk whereas if transferee has not full title the court cannot permit him to put up construction on the suit property.

Here in case where if transferee has acquired title to the property only partly means not full owner and can’t exercise exclusive ownership to the detriment of other co-shares unless and until partition has happened, so here before partition he can’t put up constructions either on the entire or on portion of property.

Balaji v. Ganesh [43]

In this case the principle of second paragraph has been laid down in the following words:

“ It is a far safer practice and less likely to lead to serious breaches of peace, to leave a purchaser to a suit for transition than to place him by force in joint possession with the members of a Hindu family, who may be, not only of a different caste from his own, but also different in race and religion.’’

Rajeshwari v. Balchand Jain [44]

Facts: Members of Hindu Joint family residing in a house and carrying on business of the family. Here no partition had taken place. Plot of land was purchased and the source of money was appeared to ‘joint earnings.

Decision: Court held that presumption of equality is not there, so section 45 is not attracted. Here court observed there is no presumption about property that it is a joint family property. Then Burden of proof lies on the person who is asserting it to be joint property.

Section 45 deals merely with the quantum of interest and its determination where there are several joint purchasers of immovable property. In this context it doesn’t provide for the method of creating common ownership that means several so-owners can’t exist.

IX. Conclusion

After having research, researcher can conclude as transfer by co-owners means the transferee steps into the shoes of his transferor and is clothed with all the rights and liabilities of his transferor. So, transferee becomes as much a co-owner as his transferor was before the transfer. However, there is an exception to this rule which states that transferee happens to be stranger can’t claim for joint possession of a family dwelling house unless and until partition happens. Here the term ‘co-owner’ means either a joint tenant or tenant in common under English law. Joint transfer where property is transferred to two or more persons without specifying their respective shares and consideration is paid as common fund or may be advanced separately. Transfer by co-owners of share in common property which says transfer of shares without specifying from common property the transfer has made, and then the share of each co-owner is reduced proportionately. This is also an application of the principles of equity that equality is equity.

Apart from this researcher can conclude as the exception provide under section 44 in respect of dwelling house is to avoid inconvenience from stranger transferee who may not only of a different caste but also of different race and religion.

[2] G.P. Triphati, THE TRANSFER OF PROPERTY ACT, 18 th ed. 2016, p.222.

[3] H.N Tiwari, TRANSFER OF PROPERTY ACT, 5 th ed. 2008, p. 190.

[4] Jogeshwar Narain v. Ram chand Dutt, 1896 23 IA 37; Venkatakrishna v. Satyawathi, AIR 1986 SC 751.

[5] Daral Chandra Chatterji v. Gartha Behari Metra 1954 ILR 1 Cal 384; Bulu Sarkhel v. Kali Prasad Basu, AIR 2012 Cal 67.

[6] Lalita James v. Ajit Kumar AIR 1991 MP 15; Ramdayal v. Maneklal AIR 1973 MP 222.

[7] T. Lakshmipathi v. P. Nithyananda Reddy 2003 (5) ALT 44 (SC).

[8] AIR 1993 HP 141.

[9] AIR 1985 Mad 283.

[10] AIR 2004 P H 353.

[11] Amir Mahton v. Sheopujan AIR 1946 Pat. 231; Jamunan v. Jhalli AIR 1920 All.111.

[12] Venkayya v. Venkata Subbarao, AIR 1957 AP 619.

[13] Mohammad Jaffer v. Mazhar –ul-ashan 1906 3 All LJ 474.

[14] Hariharayyar v. Ahammadunni, AIR 1940 Mad. 491.

[15] RajniMohan v. Sambhunath 1930 ILR 57 Cal 715.

[16] Durga Charan v. khundkar, 1918 27 Cal LJ 441.

[17] Hemadri Nath Khan v. Ramani Kanta Roy 1897 ILR 24 Cal 575.

[18] G. C.V Subba Rao, LAW OF TRANSFER OF PROPERTY, 7 th ed. 2012, p.533.

[20] Muthukumara v. Sivanarayana AIR 1933 Mad. 158.

[21] Kandasamy v. Velayutha AIR 1926 Mad. 774.

[22] Subba Goudan v. Krishnamachari AIR 1922 Mad. 112.

[23] Bhau v. Bhudha AIR 1926 Bom. 399.

[24] Dr. Poonam Pradhan Saxena, PROPERTY LAW, 2 nd ed. 2011, p.208.

[25] Chandra Shekar v. Abidalli AIR 1925 Nag. 68.

[26] Venku Reddui v. Venku Reddi AIR 1927 Mad. 471.

[27] Parmanand Swain v. Rabindranath Swain, AIR 2004 NOC 109 (Ori).

[28] Ram v. Ram Kishan AIR 2010 All 125.

[29] Balaji v. Ganesh, 1881 5 Bom.499.

[30] D.F. Mulla, THE TRANSFER OF PROPERTY ACT, 11 th ed. 2013, p.257.

[31] Kshirode Chunder v. Saroda Prosad 1911 12 Cal LJ 525.

[32] Ram Bilas Tewari v. Shivrani AIR 1977 All 437.

[33] Kshirode Chunder v. Saroda Prosad 7 IC 436.

[34] AIR 1992 Cal. 45.

[35] Hari Singh v. Madan Lal, AIR 2001 Delhi 231.

[36] Nirupama Basak v. Baidyanath Paramanik, AIR 1985 Cal 406.

[37] Daral Chandra Chatterjee v. Gartha Behari Metra, 1954 1 Cal 384.

[38] AIR 2007 Ori. 65.

[39] Balai Chandra v. Raisuddin Naskar, AIR 1956 Cal. 58.

[40] AIR 1927 Sind. 62.

[41] AIR 1990 SC 867.

[42] AIR 1985 Mad. 283.

[43] 51 Bom. 499; AIR 1976 Bom. 342.

[44] AIR 2001 Mad. 179.

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Transfer of Property Act Research Paper Topics

Transfer of Property Act research paper Topics – We are providing some research paper topics related to the Transfer of Property Act:

“Analyzing the Historical Evolution of the Transfer of Property Act in India”
“Impact of the 97th Amendment Act on Property Transactions in India”
“Legal Implications of the Doctrine of Part Performance in Property Transactions”
“A Comparative Study of Property Transfer Laws in India and Common Law Jurisdictions”
“Exploring the Role of Registration of Property in Ensuring Legal Validity”
“Challenges and Remedies in Disputed Property Transactions under the Transfer of Property Act”
“The Role of Easements in Property Transactions: A Legal Perspective”
“Property Rights of Women in India: A Critical Analysis of the Transfer of Property Act”
“Succession and Inheritance Laws under the Transfer of Property Act: A Socio-Legal Study”
“Real Estate Transactions and Tax Implications: A Study of Stamp Duty and Registration Charges”

These topics can provide a starting point for your research paper on the Transfer of Property Act, and you can narrow them down based on your specific area of interest within property law or real estate transactions.

12 more research paper topics related to the Transfer of Property Act:

11. “The Role of Trusts and Gifts in Property Transfers: A Comparative Analysis” 12. “Impact of Digitalization on Property Transactions and Registration under the Transfer of Property Act” 13. “Environmental Considerations in Property Transactions: Legal Aspects and Compliance” 14. “Adverse Possession and Its Implications in Property Law: A Case Study under the Transfer of Property Act” 15. “Mortgages and Liens: Examining Security Interests in Property Transactions” 16. “Co-Ownership of Property: Rights, Responsibilities, and Dispute Resolution” 17. “Legal Aspects of Leasehold and Freehold Property Transactions in India” 18. “Transferring Intellectual Property Rights: Challenges and Solutions under the Transfer of Property Act” 19. “Property Transactions in Special Economic Zones (SEZs): Regulatory Framework and Implications” 20. “Property Frauds and Legal Safeguards: A Study of Prevention and Remedies” 21. “Evolving Land Acquisition Laws in India: Impact on Property Ownership” 22. “Foreign Investment and Property Transactions: A Legal Analysis under the Transfer of Property Act” These topics cover various aspects of property law and can serve as the basis for in-depth research papers in this field. Choose the one that aligns best with your interests and objectives.

7 more research paper topics related to the Transfer of Property Act:

23. “Legal Implications of Property Partition among Co-owners: A Comprehensive Study” 24. “Property Transactions and the Rights of Minor Co-owners: A Legal Perspective” 25. “Unregistered vs. Registered Property Transactions: A Comparative Analysis” 26. “Property Transactions in the Digital Age: Blockchain Technology and Smart Contracts” 27. “Corporate Real Estate Transactions: Compliance with the Transfer of Property Act” 28. “Eminent Domain and Property Expropriation: Examining Government Powers and Compensation” 29. “Land Reforms and Property Redistribution: A Study of Social Justice Underlying the Act” These topics delve into various aspects of property law and can provide a solid foundation for your research paper. Choose one that resonates with your interests and research goals.

Property Law - Notes, Case Laws And Study Material

Get concise property law study materials, case laws, and notes for in-depth legal knowledge..

Property Law- The Transfer of Property Act came into existence in 1882 . Before that, the transfer of immovable property was governed by English law and equity principles. This Act deals with the transfer of property inter vivos , i.e., a transfer between living persons. It contains the transfer of both movable and immovable property, but a major portion of the enactment applies to the transfers of immovable properties only.

Legal Bites' study material on the property laws of India is divided into six modules and an additional section containing related articles. The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically.

Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of mortgage , lease and gifting .

Important articles and study material on Property Law – Click on the link to Read

Module 1: concept of property and general principles regarding transfer of property:.

Transfer of Property Act: Introduction and Important Definitions
Transferable Property
1000+ Detailed Questions MCQ Test Series for Competitions (Redirect to Law Aspirants)
Restraints on Alienation
Transfer to an Unborn Person
Rule against Perpetuity
Vested and Contingent Interest
Conditional transfer

Important Books and Practice Tests (Must Have)

EBC's Law of Transfer of Property by Vepa P. Sarathi, Mallika Taly

Module 2: General Principles Governing Transfer of Immovable Property

Doctrine of Priority
Transfer by Ostensible Owner
Rule of Estoppel
Doctrine of Lis Pendens
Fraudulent transfer
Rule of Part Performance
Actionable Claim

Module 3: Sale

Sale of Immovable Property: Explained As Under TPA, 1882
Right and liabilities of buyer and seller
Encumbrances And Court Sale

Module 4: Mortgage

Mortgage: Meaning, Explanation And Kinds
Rights and Liabilities of Mortgagor and Mortgagee
Marshalling, Contribution and Subrogation
Charge on Property As Explained Under Transfer of Property Act

Module 5: Lease

Lease: Introduction, Concept, Essentials and Conditional Leases
Rights and Liabilities of Lessor and Lessee
Determination of lease
Easement: Concept, Essential, Types | Explained
Difference between Lease and License

Module 6: Gift

Concept and Kinds of Gift
Universal Donee | Section 128
Exchange Explained As Under Transfer Of Property Act, 1882

Property Law Question Answer Series: Important Questions for Exams

1. Property Law Question Answer Series 1

2. Property Law Question Answer Series 2

3 . Property Law Question Answer Series 3

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Transfer of Property Act, 1882

Adv. Pooja Gupta

Updated on: September 20, 2023

Best Law Books

TRANSFER OF PROPERTY ACT, 1882: The Property Transfer Act is a law that governs the transfer In India, property is divided into two types: movable and immovable. This Act governs the transfer of property/assets (movable or immovable) between living people, & it took effect on July 1, 1882 .

The Transfer of Property Act is a contract law extension that is comparable to succession laws and is one of the oldest laws in the Indian court system. Those intending to transfer their immovable property should be familiar with the Transfer of Property Act’s major clauses.

Table of Contents

The Purpose/Objective of the Act

Parties: A property transfer can be completed by the act of 2 or more parties or by the application of the law.

The Transfer of Property Act directs the conveyance of immovable property from one living human being to another (inter vivos). Furthermore, the Act governs both corporate and personal property transfers. On the other hand, the Transfer of Property Act applies to acts of parties instead of lawful transfer.

history of TP, ACT

The Transfer of Property Act of 1882 has a long and illustrious history

Prior to the establishment of the British Raj system in India, Hindus & Muslims were governed according to their own property laws. In contrast to English law, when Britishers became involved in the Indian judicial system, they established informal courts in which there was no distinct and concrete law. Numerous High Courts have ruled that specific property transfer acts must be carried out. The Privy Council acknowledged the concerns and suggested the authorities to act quickly because the concept of moral, equity, and justice was puzzling and created numerous uncertainties.

As a consequence, Queen Elizabeth II of the United Kingdom appointed the first commission to resolve the problem. But when relates to real estate transfers. After some measures were adopted in the Legislative Council in 1877, the report was delivered to India. It was then sent to the appointing authority, but due to public outcry, it was withdrawn. The Second Law Commission had to rewrite the bill. The Laws of Conveyancing & Property Act of 1881, in particular, was a source of inspiration for several of the clauses. The law has been written in such a way that it is suited for the Indian populace and easy to understand for a non-professional jury.

As a result of the Second Commission’s repeated modifications, the Act became more comprehensive.

As an outcome, a special committee was formed to implement the essential legal provisions. As a result, the statute has undergone multiple amendments in an attempt to widen its scope and remedy existing flaws.

types of Property Transfers

Different types of Property Transfers are availabl e :

The Transfer of Property Act defines six primary forms of property transfers:

Mortgage exchanges
Actionable claim

Certain properties are prohibited from being transferred under the Transfer of Property Act.

Sec 6 states that any type of property may be transferred, with the exception of:

The possibilities of heir succession.
A right of re-entry in the event that any conditional leasing agreements are breached.
You can’t sell or transfer an easement.

For example, the right of way and the right of light,

Religious office privileges, such as mahant and priest, cannot be transferred.
The right to maintenance in the future is non-transferable.
It is impossible to transfer a mere right to sue.
There is no such thing as a government job or a wage.
The government’s military, navy, and Air Force retirees are eligible for a stipend

Who has the Authority to Transfer Property?

Sec.7 of this act, states that Everyone who is eligible & competent to enter into a contract, i.e. a major & of sound mind, or who is not prohibited by law from contracting, is able to do so, according to Sec. 7 of the Transfer of Property Act of 1882.

An individual should be at least 18 years of age & of sound mind to enter into contracts under I.C.A,1872.

A Verbal/Oral agreement is used to Transfer Property (Sec.9)

Property transfers can be completed through oral agreements, according to Section 9 of the Act, unless the legislation clearly indicates that a written agreement is required to complete the transaction. In the specific instance of immovable property worth less than Rs 100, such transfers could be formed through the use of a registered instrument or by physical delivery of the property. It suggests that approximately no immovable property can be conveyed into the name of another individual without a legal document being executed.

Verbal contracts, on the other hand, are generally ineffective, with the exception of division of property, where members of the family may enter into a verbal agreement & divide the asset for pragmatic purposes. Written contracts are usually needed for a property transaction to be legally enforceable. This is true, among other things, for sale, gifts, and leases.

Transfer Property to an Unborn Child

The terms of the Transfer of Property Act must be considered by anyone who desires to leave their property to more than one generation. This is considered to prevent future legal issues.

Sections 13 & 14 of the Transfer of Property Act make it illegal to transfer property directly to an unborn baby. To provide it, the person transferring assets first must do it in the account of those who are still living at the time of the transfer.

Until the unborn child is born, the property must be held in this person’s name. Basically, a parental interest in a property must come before the unborn child’s interest in the property.

Until the unborn child is born, the property must be held in this person’s name. In essence, the unborn child’s interest in a property should be initiated by a prior interest.

If the criteria have been met, the property can be transferred conditionally under Section 25 of the Transfer of Property Act, of 1882. If the requirement became unfeasible, illegal, opposed to public policy, or immoral, the transfer would be void.

several types of Property Transfers

Under TP, ACT 1882 There are several types of property transfers

Sale of immovable property: the buyer transfers ownership to the seller in exchange for a price. From the seller, the buyer receives tangible property.
Immovable property mortgage: a mortgage is used to transfer property from the buyer to the seller, and the immovable property is mortgaged to guarantee a loan. The mortgagor should pay the principal debt plus interest in order to have the immovable property released from the mortgage.
Immovable property leases: in this case, possession of the property is transferred from one person to another for a service charge, but possession is not transferred.
Immovable property exchange: a property exchange occurs when two people agree to transfer immovable property.
Gift of immovable property: As per the Act, a gift is defined as a violent or nonviolent transaction of movable property or immovable property through one individual, the donee, to another person, the donor, that is acknowledged by and on behalf of the donee.

The purpose of the Act was to provide a comprehensive piece of legislation that explains the transfer in simple English. When it was first presented, however, it was incomplete and had a lot of uncertainties. It has experienced multiple changes, and the act has repeatedly demonstrated its effectiveness. Additional law, such as the 1882 Transfer of Property Act, is needed in India.

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Home » Articles » Doctrine of Spes Successionis

Doctrine of Spes Successionis

Reading Time - 9 minutes

by B&B Associates | Jul 21, 2020 | 0 comments

Spes successionis is a Latin maxim. It means, the chance of succeeding in a person’s property after his death. It states about the mere possibility of a person to succeed in a property after his death. The heir apparent or any relation expects to succeed in a property by way of will or succession. Then according to the transfer of property act, it does not vest any interest in the property and cannot be subject to transfer.

It is not taken as a transfer because the property is not in the hand of the transferor but a mere expectation to get right over the property in the future. The heir apparent may get a certain property in the future if what he/she thought works in that way. The Transfer of Property Act 1882 , governs the transfer of property every aspect and prohibits some way of transfer to protect the principle of equity. The general rule of Section 6 of the transfer of property act is that property with the interest is transferable. The rule of transferability is based on a maxim “Alienation Rei Prefertur Juri Accrescendi”, which means law favors alienation to accumulation. Thus, any attempt by anyone to restrict the owner to alienate his interest in the property is stopped by the law. At the same time when a transferor does not possess a valid interest in the property but makes a transfer for his personal gain and enjoyment which is against public policy such transfer of the interest of the property should not be allowed to transfer. Except mentioned in Section 6 of which spes successionis is apart all other properties are transferable by the act. Apart from Section 6 clause, any person claiming non-transferability has to prove usage and custom.

Transfer of Property Act 1882

This act governs the transfer by the act of parties and amend the prevailing rules governing the same and does not introduce any new principle of law. The act itself mentions in the start that it governs the actions of the parties and does not relate anything with the transfer that takes place by the operation of law. Accordingly, it does not govern any transfer by court auction, forfeiture, acquisition due to insolvency, government grants, and transfer by intestate succession. The primary objective of the act is to bring in harmony between the rules relating to the transfer of property and living persons and devolution of the same. This act also makes the Indian Contract Act 1872 complete as many transfers arise out of a contract between the parties.

Essentials of Valid Transfer –

Whether the property is movable or immovable the compliance of the below-mentioned provisions of the act is a must for Transfer –

The property must be transferable (Section 6)
The transferor must be competent to Transfer (Section 7).
The transferee must be competent.
The transfers must be according to the provisions of the act

S.6 Spes Successionis – The things referred to in this Sub-section as non-transferable are the chance of an heir succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature.

Note – In the case of Samir Kumar Haldar vs. Nirmal Chandra Banerjee where the transfer is not of right of expectancy of an heir apparent but of the property itself it cannot be said as a transfer of mere chance to succeed. Where a person is not heard for a long time and is believed to be dead any transfer of his property made by his brother who is in enjoyment and possession of the property itself cannot be termed as void under transfer by spes sucessionis.

Exception to rule of transferability – Non-transferability wherein the law prohibits the transfer of property in certain cases that are the exception to this rule. Clause (a) to (i) contains 10 exceptions in Section 6 where the property is not transferable.

Section 6(a) of the Act excludes the chance of an heir apparent for succeeding in the estate from the transferable property. The Latin term is known as the “Spes successionis”. When the transferor does not possess a valid title to the property and hopes for a chance in the future or has an interest in his personal enjoyment. Such transfer is not allowed as against public policy. It’s a kind of illegal and fraudulent transfer.

Example of Section 6 – Where a son hopes to succeed in his father’s property. His acquisition of interest is based on the hope that may or may not get fulfilled. So, to avoid any claim or dispute, later on, the law does not permit us to do so.

Spes successionis under the section includes the following clause

Chance of an heir-apparent succeeding the estate.
Chance of a relation obtaining legacy on the death of a kinsman
Any other mere possibilities of a like nature

1. Chance of an heir-apparent succeeding the estate – Heir apparent who is apparently an heir but not the legal heir. Heir- apparent is a person who will be heir in future if he survives the propositus and propositus does not make any will. It is based on a maxim Nemo Est Heres Viventis which means that a living person does not have any heir. Father and son are entitled to inherit the property of each other. For e.g. if the father dies first, the son becomes heir from heir apparent and inherits the property but is son dies then inheritance is not possible by him. Thus, who dies first is not known so the son cannot be called as heir but only an heir apparent. When the property is succeeded

Son survives the propositus
The propositus dies intestate i.e. without any will

It is also possible that the father made a will through which the property is not given to heirs but another person after the death. Thus, before the death of the propositus without will the chance of an heir apparent getting the property is future possible interest.

This future right does not create any interest in favor of an heir apparent. It cannot be taken as present fixed right over the property. Thus, it is termed as non-transferable.

In the case of Shamsudin vs Abdul Hoosein , the Bombay High Court held that “If the heir apparent made a settlement of the property before the death of the propositus and got the money on the account that he would not have a claim in the share then it was held that the transfer was hit by spes successionis and is void. In spite of the execution of the deed, the heir apparent will get his share as the transfer was void ab initio. However, the exchange of money if taken in such a transaction need to be settled.”

Right of reversioners under Old Hindu law –

Reversioner is a person who gets the rights in the property of a widow after her death held by her for life. Thus, under old Hindu law, it is a mere chance of getting the properties and it comes under the spes successionis. They are called reversioners because during the lifetime of widow their rights of inheritance are suspended and revert back on the death of widow provided, they survived her. Thus, Hindu reversioner has no right in the property in the lifetime of a widow and after his death also they must survive her. Thus, it is not transferable.

In Annada Mohan Roy vs. Gour Mohan Mallik , there was a transfer by a Hindu reversioner. The privy council held that since the interest is spes successionis, an agreement to transfer or a transfer does not become effective, the agreement is void.

2. Chance of a Legacy – Clause also provides that chance of obtaining a legacy on the death of kinsman is not transferable. It means to expect certain properties under a will. In India, the law related to wills is well settled that the will operates at the death of the testator not on the date when it is written. However, the date of writing of a will is also of primary importance because the last will prevails if two or more is present. The one which is most recently is taken up and that legatee only gets the property. Accordingly, where a person executes a will the legatee whoever it maybe has only a chance of succession as we don’t know which is the last will or the legatee may not survive the testator. Thus, it is merely a hope to get the property. This kind of person friends, relatives, or any other person receiving property has a more remote chance than the succession of an heir and is therefore not transferable.

3. Any other possibilities of Like nature – Any other possibility of the like nature would mean any other possible interest or property which is as uncertain as chances of an heir apparent or a legatee getting the property under a will. The idea behind the clause is that a property that is merely a future uncertain interest should not be made transferable as it would be against the principles of law. Thus, not only heir apparent and legatee are covered but any other property which is not fixed right of the transferor. The possibility of getting a property as contemplated here is similar to getting a prize or lottery in a competition. And the other properties may be evaluated on the basis of ejusdem generis rule.

In the case of Devi Prasad vs. A.H. Lewis – the dispute arose on the wages of servants. It was held by the Allahabad high court that the future wages before they are earned by the servant are possible interest and cannot be sold attached or transferred.

Illustration – a fisherman contracts to transfer a fish he would get in his next catch the transfer is void ab initio because the transfer is of a future possible interest because the fisherman may or may not get any fish at all in his next catch. The fisherman has no interest in the fish until they are caught like an heir apparent in the property.

Right to Receive Future offerings – It has been a dispute and the opinions of the high courts have been divided. The offerings of a temple or shrine is a beneficial interest and thus property. In Digambar Tatya Utpat vs. Hari Damodar Utpat it was thus held by the court that as the offerings are property the share of priests in the net balance of the offerings already made to an idol may be attached.

The opinion of the High court of Calcutta in Puncha Thakur vs Bindeswari Thakur “ The right to receive future offerings is uncertain future right because it is merely a chance that worshipper offers something at the temple. Hence it is a mere possibility that cannot be transferred”.

Allahabad High court in Balmukund And Anr. Vs. Tula Ram – “The court held that future offerings are not so uncertain variable and can pass out the conception of law and held it as transferable.”

However, the supreme court has settled the law as Badri Nath & Anr vs. Mst. Punna (Dead) By Lrs & Ors “The court held that right to receive offerings is coupled with duties other than personal qualification therefore transferable and could be inherited. It held that it does not depend on the possibility of nature referred to in Section 6 of the act. The case involved dispute of future offerings of the temple Vaishno Devi Ji.”

It is also not transferable under Muslim law. It is mentioned in chapter 2 of the act that chapter 2 does not affect any rule of Mohammedan law. So, if the rule of Mohammedan law would have allowed spes successionis it would have been transferable. But it is not allowed.

In Abdul Gafoor vs. Abdul Razack , the Madras High Court held that since the case of Muslims to the transfer of expectancy by an heir apparent is void ab initio, therefore, no question of estoppel arises if the heir apparent renounce his claim.

But in the case of Hameed vs Jameela where the payment was received by the legal heir apparent in lieu of his share in the property. He was held to be estopped from claiming a share. The court held that heir apparent is estopped from succeeding on account of his conduct and the Supreme Court has also approved the decision. In the case of Shehammal vs. Hasan Khani Rawther & Ors, the Supreme Court held that the heir apparent received an advantage for giving up his right in the future property and it was held that he is estopped from claiming double benefit by spes successionis.

Spes successionis in Punjab – the transfer of property act is not applicable in Punjab and therefore the transfer of spes successionis is transferable in Punjab. The transfer of hope or expectancy is held valid in Punjab. The court in Punjab follows the English principle of equity but the court can apply spes successionis in Punjab indirectly by the principle of justice, equity, and good conscience. This brings the law in Punjab at par with the law in other parts of India.

English Law- Under English law also spes successionis is non-transferable property. But is some consideration is given in return for this transfer it is not void ab initio under the English equity. It is the point where English law differs from Indian law. In Indian law even an agreement to assign the spes successionis property is null and void, the actual assignment is far ahead. The transfer of hope for value has been protected by equity. The result is that if an heir apparent transfers the property and transfer is for valuable consideration then when the heir apparent becomes legal heir and gets interested in the property. Equity shall compel the transferor to transfer it to the transferee. Then transfer of expectancy cannot be claimed to be void ab initio. However, the transfer by gift is void and the interest of the transferee is not protected. Thus, in English law, there is no express prohibition of assigning an expectancy for value and it becomes contract as the heir apparent becomes legal heir.

In the case of re parsons – There is no dispute that no one can claim any interest in any property by any law, contingency, or equity of a living person who one hopes to succeed as an heir or by legacy as a kins.

Contingent Interest and Spes Successionis – In a transfer of the property where the vesting of interest depends on any contingency i.e. the uncertain future event, the interest is contingent. The vesting of interest depends upon an event that may or may not happen then the interest is contingent.

Similarity –

They both are the future possible interests.
There is no present fixed right in respect of the property
There is a chance that it may become a title

Differences – the contingent interest has more chances to become a fixed right as it is dependent on something uncertain that have only two possibilities that the event may or may not happen but the spes susccessionis is dependant on several possibilities i.e.

the heir apparent survives the propositus (deceased person).
the property must not be transferred by the propositus during his lifetime.
the propositus must not have made a will so spes successionis is a mere possible future interest

Spes successionis is a future possible interest so by Section 6(A) of the act that transfer is non-transferable interest whereas contingent is not future possible interest it is in the present that is uncertain therefore transfer of contingent interest is permissible by law.

In Ma Yait vs. The Official Assignee , the privy council has remarked about the difference in the two terms “the contingent interest which the children took was something quite different from a mere possibility of a like nature of an heir-apparent succeeding to an estate or obtaining a legacy. It is a well-ascertained form of property it certainly has been transferred in this country for generations through which money is raised and disposed of it in any way beneficiary chooses”

Thus, according to the general law, every kind of property is transferable unless there are some legal restrictions. S.6 makes every kind of property alienable with a few exceptions spes successionis being one of the major. Now through equity, it is well settled that arising out of consideration when the heir apparent gets the property has to follow the contract done when the property was not inexistent. The exception to Section 6 covers 8 exceptions in the clauses provided and under specs successionis it covers heir apparent succeeding an estate, chance of kins obtaining legacy by will, any other possibilities of a similar nature which is held to be void ab initio .

This Article has been written and submitted by Mr. Nikhil Punshi during his course of internship at B&B Associates LLP. Mr. Nikhil is a third-year law student at the Hidayatullah National Law University, Raipur.

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Transfer of Property Act Case Laws | Judicial Services

Written by admin

Updated on: April 11, 2024

Table of Contents

Transfer of Property Act Case Laws | Judicial Services | Law Exam

1. duncans industries ltd. v. state of u.p (2000) 1 scc 633.

Whether the machinery embedded in the earth can be treated as moveable or immoveable property depends upon the intention of the parties which embedded the machinery.

2. Sant Lai v. Kamla Prasad (1952) SCR 116

Each witness must sign only after the execution is complete otherwise it will not be a valid attestation.

3. Dr. HK Sharma v. Shri Ram Lai (2019) Supreme Court (SC) 83

The Supreme Court observed that the landlord-tenant relationship will not be terminated merely by an agreement to sell the property of the landlord unless there is a stipulation in the agreement itself to that effect.

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4. Rosher v. Rosher (1884) 26 Ch D. 801

The test to determine whether the restraint is absolute or partial depends upon the effect and not the form or words laying down the condition.

5. Muhammad Raza v. Abbad Bandi Bibi, AIR 1932 P.C. 158

Where the condition restricts the transferee from transferring the property to strangers, i.e outside the family of the transferor, the condition is merely a partial restraint which is valid and enforceable.

6. Shanta Bai v. State of Bombay, AIR 1958 SC 532

Standing timber is different from a timber tree. Standing timber refers to tree in such a state that if cut could be used as timber, while timber tree refers to tree drawing sustenance from the soil.

7. Pandit Chunchun Jha v. Sheikh Ibadat Ali, AIR 1954 SC 345

Supreme Court held that if the condition of re-purchase is no embodied in the document of mortgage then the transaction can’t be said to be mortgage.

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Attestation Law Under The Transfer Of Property Act, 1882: Law Concerning The Proving Of Valid Attestation

Requisites of valid attestation.

For an attestation to be valid it must be done by two or more persons. The witnesses must have seen the executant sign the document concerned or should have received the personal acknowledgement from the executant himself.
Each attesting witness must see the executant signing or fixing his mark (thumb impression), or see some other person signing in the presence and by under the direction of the executant.
With the view to witness or attest the document, each of them should sign the instrument in the presence of the executant, confirming that he has seen the executant sign or has received the personal acknowledgement of the same. But in case the attestation is done for some other purposes for example to certify that he is a scribe or a registering officer, he fails to be an attesting witness.[7] Thus, it is essential that the witness put his signature with the purpose of attesting.
The attestation can only take place after the execution of the legal instrument is ready for it to be a valid one.[8]
Signature by an attesting witness at the legal document is acceptable with all form and formality may constitute valid attestation. There is no particular form of attestation is prescribed that parties need to adhere to.

Competency of attesting witnesses

Scribe as attesting witness, party interested in the transaction, registrar as attesting witness, the sub-registrar or registrar officer may act as an attesting witness, but it must be shown that:.

He has put his signature with animo attestandi i.e. with intention to attest; and
He has either personally seen the executant signing the document or has seen the executant accepting the execution before him.[19]

Effect of disability on competency of attesting witness

Proof of valid attestation in court of law, if the provision regarding the same is made anytime soon following are the requisites that must be met, where witness must:.

see the party signing the document
sign the scanned copy of the signed document sent electronically by the signatory
be confident with the document they are signing is the same document that the signatory is signing
Endorse the document attested or the copy with a statement mentioning the method of witnessing.
Ins. by Act 27 of 1926
Shriomani Gurudwara Prabandhak Committee, Amritsar v. Som Nath Dass and Ors, MANU/SC/0219/2000
In the law the term 'execution' has not been defined specifically. In the normal parlance execution means the signing of the document. In the case of Bhavanji v. Devji, (1894) ILR, 19 Bom 635 it was observed that the execution means signing, sealing, and delivery of document and the term may be defined as the formal completion of the deed.
Instrument is defined under section 3.Interpretation clause, as a non-testamentary instrument.
Indu Paintal v. General Public, (2011) 97 AIC 761.
M.N Abdul Jabbar v. H. Venkata Shastri, AIR 1965 SC 1147
B. Rajegowda v. H.R. Shankere Gowda, AIR 2006 Kant 48, ILR 2005 KAR 5501, 2006 (6) KarLJ 237
Sant Ram v. Kamala Prasad, MANU/SC/0043/1951
Peddavandla Narayanamma v. Peddasant Venkata Reddy, AIR 2007 AP 137
Seal v. Claridge 7 QBD 516 (1881)
Gomathi Ammal v. Krishna Iyer, MANU/TN/0131/1954
Peddavandla Narayanama v Peddasant Venkata Reddy, AIR 2007 AP 137
Govind Bhikaji v. Bhau Gopal, 39 IC 61, (1917) ILR 41 Bom 384
Brij Raj Singh v. Sewak Ram, MANU/SC/0290/1999
Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC 1738
Durga Din v. Suraj Bakhsh, MANU/OU/0018/1931
supra note 15
Supra note 6
Venkata Sastri v. Rahilna Bi, MANU/TN/0561/1961
Lachman Singh v Surendra Bahadur Singh, MANU/UP/0094/1932
UNESCO Global Education Reports, Accountability in Education: Meeting our commitments
Nagulapati Lakshmamma vs Mupparaju Subbaiah, MANU/SC/0282/1998
Lala Kundan Lal v. Mushrafi Begum, AIR 1936 PC 207
Abdul v Saliman, (1900) ILR 27 Cal 190; Surur Jigar Begum v Barada Kanta, (1910) ILR 37 Cal 526
Ramji v Bai Parvati, (1903) ILR 27 Bom 91; Ganga v Shiam Sundar, (1904) ILR 26 All 69
Shamu Patter v. Abdul Kader, 16 IC 250 (1912) ILR 35 Mad 607.
Girindra Nath Mukerjee v. Bejoy Gopal Mukerjee MANU/WB/0040/1898
Ramji v. Bai Parvati (1904) ILR 27 Bom 59
Section 3, Transfer Property Act, 1882
Richard Gibbard, A witness to history: attesting document in Lockdown, Field fisher, March 27, 2020,
Right v. Price (1779) 1 Doug. K.B. 241
Charanjit Kaur Nagi v. Govt. Of N.C.T. Delhi and Ors, MANU/DE/8847/2007
Supra note 20.
Janki Narayan Bhoir vs. Narayan Namdeo Kadam MANU/SC/1155/2002
Brij Raj Singh v Sewak Ram MANU/SC/0290/199
Section 71, Indian Evidence Act, 1872
K. Laxmanan vs. Thekkayil Padmini and Ors. MANU/SC/8352/2008
V. Kalyanaswamy (D) by L.Rs. and Ors. v. L. Bakthavatsalam (D) by L.Rs. and Ors. MANU/SC/0528/2020
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3 Most Important Landmark Cases on Transfer of Property Act

Find Out How Landmark Cases Can Help You Win Your Property Dispute

Introduction

The Transfer of property act, 1882 states in its preamble that it aims to define and amend laws relating to the Transfer of property. It does so not by operation of law but rather by the ct of the parties.

Transfer of property act is a civil law and codifies substantive rights. The act is also not exhaustive in nature, meaning it does not cover the entire dimension of the Transfer of property. As such, it being a substantive law, there are a lot of relevant cases regarding the Transfer of property, so in the interest of time, we’ll take a look at the most important landmark cases on the Transfer of Property Act.

Landmark Cases on Transfer of Property Act:-

Rusher v. Rosher
Related to – Section 10, TPA
Doctrine – Rule Against Alienability
Section 10 of the Transfer of Property Act:

Condition Restraining Alienation – “ Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void ,

Facts of the case

In this case, a testator devised an estate for his son (or his heirs) subject to a condition that if he should desire to sell the estate, during the lifetime of the testator’s wife, she would be given an option to purchase the estate for £300 for the whole and at a proportionate price for any part thereof.
The value of the property at the date of the will was £15,000. Thus, she had an option to purchase the property at one-fifth of its value.
The will also provided that if the son or any of his heirs wanted to let the estate on rent, they could do so freely only for three years.
After the expiration of that period, the widow would have the option to occupy the premises, for the period in excess of three years, at a fixed nominal rent.
If the tenancy exceeded seven years, again, she was entitled to occupy the property for a fixed rent.
The son or his heirs were under an obligation, therefore, to offer the premises to the widow first, and only when she declined to take it could they let it out to other persons.

Court’s Observations:-

The court observed that the test to determine whether a restraint is absolute or only partial depends upon the effect and not on the form of words laying down the condition.
If the effect is absolute, it would be struck off as bad howsoever clear language may have been used.

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Cooper v Cooper
Related to – Section 35 of the TPA 1882
Section 35 – ( Explained ) Where an individual person professes to transfer the property which he has no right to transfer and as a neighborhood of an identical transaction, it confers any benefit on the owner of the property, and such an owner must elect either to verify such Transfer. Or to dissent from it, and within the latter case, he should relinquish benefit so conferred. Thus the benefit is renounced in a way that it reverts to the transferor or his representative as if it had not been disposed of.

Facts of Case

Vera and Harold Cooper were married in 1933. They had two children. Due to legal separation, there was a settlement: agreement, and through this agreement, Vera took the family home and automobile, and Harold took tools and shop equipment.
With the name, Harold four policies were there, and Vera was the beneficiary of all those policies. Subsequently, the decree of divorce was granted by the court.
Then Vera married one Alves, and Harold married Ida. After Harold’s remarriage, he changed the beneficiary of the three equitable policies from Vera to Ida. One of the policy, which was left signed by Vera but was not signed by Harold. Then subsequently, Harold died.
The main question before the court in this landmark case on the Transfer of property act was whether Vera and his children have a vested interest in the property?
Vera had no interest within the policies at the date of Harold’s death because Harold’s obligation for her support and under the terms of the divorce decree, terminated upon her remarriage which the interest of the youngsters within the estate of their father is restricted to the quantity necessary for his or her support measured by the provisions of the divorce decree before reaching their majority.

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Bellamy v. Sabine
Related to – Section 52, TPA
Doctrine discussed – It is one of the landmark cases on the Transfer of property act that gave birth to the Doctrine of Lis Pendens.

Doctrine Explained – The doctrine of lis pendens is expressed in the well-known maxim, ‘pendente lite nihil innovature,’ which means during the pendency of any suit regarding the title of a property, any new interest in respect of that property should not be created.

The effect of the applicability of the doctrine is that it does not annul the conveyance but only renders it subservient to the rights of the parties to the litigation. The transferee will be bound by the result of the suit or proceeding, whether or not he had notice of the suit or proceeding.

Facts of the case

There was a person named Mr. H who sold an immovable property to Mr. B.
Now Mr. H’s son, Mr. P, who was the heir of Mr. H, sued Mr. B to have the sale declared to be void.
However, while this litigation was pending, Mr. B sold the property to Mr. C, who did not take notice of the suit.
The Court held that the son Mr. H was entitled to the property, and the sale was set aside.
Mr. C, who purchased the property from Mr. B, does not get any title as he purchased the property from someone who did not have the title and therefore cannot convey it.

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Court’s observation

The doctrine of lis pendens has its origin in this case, wherein Turner, L.J., observed that “The doctrine of lis pendens was a doctrine common to the courts of law as well as equity since it would become almost impossible for the suit that is instituted in a court, to be adjudicated if alienations pendente lite were allowed to prevail. The plaintiff, in such a situation, would be liable to be defeated by the defendants causing the alienation before the judgment is passed, every time, and would be driven to institute a new course of proceedings, every time.”

It is highly evident as we read these Landmark Cases on Transfer of Property Act that it’s a multi-dimensional concept, and it varies according to unique situations that we are faced with in daily life.

It has gone through various amendment processes and is bound to evolve more, considering it is not exhaustive. Suffice to say, it has proved its resilience and effectiveness with changing times and will continue to do so.

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COMMENTS

Transfer of Property Act: Notes, Case Laws and Reading Materials
This article provides Transfer of Property Act notes with case laws. The Act provides provisions for transfer of movable or immovable property. As a learner, you can consider it as a free, online, and self-placed course. As a competitive exams aspirant, you will find it perfect for Judicial Service Exams, UPSC CSE Law Optional, etc.
Section 53A of Transfer of Property Act, 1882 : an analysis
Section 53 of the Transfer of Property Act, 1882. In general, the motive of an act is taken into consideration in the eyes of the law while evaluating civil liability. The rule is the opposite when criminal law is applied because mens rea is an essential element to constitute a crime.
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Overview: The Transfer of Property Act is part of the syllabus for roughly all states' Prelims and Mains Judiciary Examination 2024. As a judiciary aspirant in 2024 or a student in your Law School, you should study the Transfer of Property Act in depth. Refer to this article to understand all the essential topics of the Transfer of Property Act for Judiciary Preparation.
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The act of transferring property from one person to another, whether in present or in the future, is known as a transfer of property under the Transfer of Property Act. By transferring property, the transferor transfers all rights in the property, according to Section 8 of the Transfer of Property Act 1882 (The Act). There are several ways to ...
Case Study 5
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Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It refers to an act done by a living person conveying property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individuals whether incorporated or not.
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Transfer Of Property Act 1882 The transfer of property act came into force on 1st of July, 1882 and may be extended to the whole or any part of India by notification in the official gazette. The act further states that the state government can exempt any part or whole of the territory under it from certain specific provisions of the act.
Property Law
Legal Bites' study material on the property laws of India is divided into six modules and an additional section containing related articles.The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically. Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of ...
Transfer Of Property Act Oneshot
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This Act governs the transfer of property/assets (movable or immovable) between living people, & it took effect on July 1, 1882. The Transfer of Property Act is a contract law extension that is comparable to succession laws and is one of the oldest laws in the Indian court system. Those intending to transfer their immovable property should be ...
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The act deals with transfer of property between two living persons. The majority of the act deals with transfers relating to immovable property. This act does not apply to transfer of property governed by personal law, for ex, Mohammedan Law. Section 3 defines Immovable Property We know that property is the total wealth of a person. It may include
Transfer of Property Act Case Laws
Where the condition restricts the transferee from transferring the property to strangers, i.e outside the family of the transferor, the condition is merely a partial restraint which is valid and enforceable. 6. Shanta Bai v. State of Bombay, AIR 1958 SC 532. Standing timber is different from a timber tree.
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