Transfer Of property Act 1882.

Q. 1 what is exchange under TP act 1882. Right and Liabilities

of Exchange.
Ans. SECTION – 118 EXCHANGE
When two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing or both things being money only, the
transaction is called an Exchange

A transfer of property in completion of an exchange can be made only in the

manner provided for the transfer of such property by sale.

FEATURES OF EXCHANGE

Transfer Of Ownership

The exchange involves the transfer of ownership of some existing property. In the
transfer of ownership, the absolute interest of the owner is transferred. A
partition of immovable property is not considered an exchange.

Property need not be immovable property

In Exchange, properties may be immovable or movable. An immovable property

can be transferred against a movable property and vice versa

Exchange includes “Barter”

The exchange of one immovable property with another immovable property is

known as “Barter” and the same in the case of the transfer of one movable
property against another moveable property.

Mode of Transfer

Section 118 provides that a transfer of property in completion of an exchange can

be made only in a manner prescribed for the transfer of such property by “Sale”.
The formalities of Section 54 (dealing with the sale of properties) will be complied
with

Where both properties are of movable, then an exchange may be affected by the
delivery of properties and registration is not essential.

Where properties are immovable, but the value is less than Rs. 100, then
registration is optional

Where the properties exchanged are immovable properties and their value are
more than Rs. 100/- then registration of exchange of ownership through an
instrument is necessary.

Mutual Exchange This mainly indicates that the parties are on the same line and
at a consensus to transfer or exchange the two things in return to each other. For
instance, if a transfer his property to be, then it is the duty of b to transfer his
own property in return for the transfer of property.

For instance, in the discharge of a wife's maintenance claim, a transfer by the

husband to the wife is not an exchange if the wife does not transfer the position
of something to the husband. Another example can be when a document in which
a decree has been set off against another and a balance has b

Rights and Liabilities of Parties in Exchange Transfer of Property through

an exchange also gives the transferor and transferee some rights in order to
protect their interest and safeguard them from being exploited. Sections 119 and
120 talk about the rights and liabilities of the parties .

In the event that one of the parties to the exchange loses the property received
by him as a result of a flaw in the other party's title, Section 119 allows for a
contingency. If a party to an exchange (or any person claiming under him) is
deprived of the thing received in exchange due to any flaw in the other party's
title, such other party is liable to him (or any person claiming under him):

(a) for the loss caused by such flaw; or

(b) for the return of the thing transferred at the discretion of the person so
deprived if the thing is still in such other party's possession (or his legal
representative or representative).

Under this provision, the person who has experienced loss because of the other
party to the exchange's faulty title has two options for redress: he may seek
compensation for his losses; he may withdraw the object he has transferred.

The Supreme Court in Jattu Ram v. Hakama Singh, AIR 1994 SC 1653, held that
entries made by a patwari in the official records do not create a title, so the
opposing party was obligated to return the property (land) to that extent when
there was a defect in the title of the land received by one party to exchange as a
result of false entries made by the patwari and the party was deprived of some
portion of land as per stipulation.

The parties to exchange rights and obligations are not addressed in Section 120. It
only states that each participant has the obligations and rights of a seller with
respect to what he delivers and has the obligations and liabilities of a buyer with
respect to what he receives. As a result, the partthe participants in the exchange
have the same rights and obligations as a seller and a buyer in a sale.

One thing is given and another is taken or received in exchange. Each participant
thus possesses the obligations and rights of both the buyer and the seller. The
Sales of Goods Act, of 1930's regulations may also apply if the traded-in
properties are movables.

Q.2 What is sale . Right and liability of buyers and sellers.

Definition of sale
Section 54 of the Transfer of Property Act, 1882, defines “sale” as the transfer of
ownership in exchange for a price. The term “price” is to be interpreted as a price
in terms of money and not otherwise. If the transfer involves any other kind of
consideration, it is not a sale. Further, the Section also provides that the price
need not be paid simultaneously with the transfer. The price may either be paid in
full or partially, or partly paid and partly promised. The transfer will be deemed
complete in all three cases. Thus, what is relevant is not the immediate payment
but the reference as to when and how the payment is to be made.

The subject matter of the sale under the said Act is immoveable properties.
Section 54 includes immoveable properties, both tangible and intangible. The
tangible properties are those that are visible, such as lands, houses, etc. The
intangible properties are those that do not have a physical existence, such as
copyrights, trade secrets, the right to ferries or fisheries, or a right to mortgage
debt, etc.

This Section provides two specific methods for how a sale can be made and
executed. According to this Section, a sale can be completed by a “registered
instrument” in cases of

 Transfer of tangible immoveable property of the value of Rs. 100 or

upwards;
 Transfer due to reversion; or,
 Transfer of intangible immoveable property.

Vidhyadhar v. Manikrao (1999), the Supreme Court held that to constitute a ‘sale’
the parties must intend to transfer the ownership of the property. The intention is
to be gathered from the recitals in the sale deed, the conduct of the parties, and
the evidence on record.

In the case of Commissioner of Income Tax v. M/s. Motor and General Stores
(1967), the Apex Court opined that the price, in the ordinary sense connotes
monetary consideration for the sale of the property. It also observed that if some
other valuable consideration is kept, the transaction is not a sale but can be an
exchange or barter.
Contract for sale

Section 54 further incorporates the concept of “contract for sale.” It is an

agreement between the parties that a sale will be effectuated in the future by
executing a sale deed on mutually settled terms. a contract transfers an equitable
estate in favour of the purchaser. However, under Indian law, a contract for sale
does not transfer any title, nor does it create a charge or interest on the property.
It is merely a promise to create a right to obtain another document, i.e., a deed of
sale.

Rights and liabilities of buyer and seller

Every property transaction create certain rights and liabilities for the contracting
parties. In the case of a sale, the contracting parties, a buyer and a seller, are also
vested with some rights and liabilities. Generally, the parties themselves expressly
agree as to which rights and liabilities they will subject themselves to. These are
mostly mentioned in a sale deed. However, the Act does not leave it entirely up to
the parties. Section 55 lays down a detailed description of every right and liability
in the absence of a contract to the contrary. For convenience, the rights and
liabilities of the buyer and seller can be categorised into the rights and liabilities
before and after the completion of the sale.

Liabilities of a seller
1. Disclosure of material defects (Section 55(1)(a)): A seller is bound to
disclose any latent material defect in the property or his title in his
knowledge. A material defect is of such a nature that if it was known to the
buyer, his intention to enter into a sale might deviate [Flight v Booth
(1834)]. It is a latent defect because it cannot be discovered by the buyer
even after ordinary care and inquiry.
2. Production of title deeds for inspection (Section 55(1)(b)): A seller is bound
to produce all the title documents relating to the property at the request of
the buyer for his inspection.
3. Answer relevant questions regarding his title or the property (Section
55(1)(c)): The seller must answer every relevant question put to him by the
 buyer relating to his title or the property. The answer must be to the best
of his information.
4. Execute a proper conveyance of the property (Section 55(1)(d)):
Conveyance means an act of transferring a property. It can be done by
signing or affixing a thumb impression on the sale deed by the seller. A
seller is bound to execute a proper conveyance only on the payment of the
consideration by the buyer. This clause imposes reciprocal duties on both
the buyer and the seller. The clause also provides that the execution must
be at a proper time and place.
5. Take reasonable care of the property and title deed (Section 55(1)(e)): The
seller is bound to take care of the property and title deed in the same
manner as an owner of ordinary prudence would do. This duty is to be
exercised till the delivery of the property to the buyer.
6. Pay all the charges (Section 55(1)(g)): A seller is bound to pay all the rent
and public charges of the property, with interest if any, due till the
completion of the sale except if the buyer purchased the property with all
the encumbrances.

Rights of a seller
 Right to take rents and profits (Section 55(4)(a)): A seller is entitled to
collect rents and profits from the property until the ownership is
transferred to the buyer.

Liabilities of a buyer
 Disclosure of all the facts known to the buyer that materially increase the
value of the property (Section 55(5)(a)): The buyer is under obligation to
confide to the seller any fact to which he has reason to believe is not known
to the seller relating to the increase in the property’s value. If he fails to do
so, it will be considered fraud, and the seller can avoid the sale if it is
proven.
 Pay the price in accordance with the contract (Section 55(5)(b)): The buyer
must pay the purchase money at the time of completion of the sale to the
 seller or any person as directed by the seller. If there are any encumbrances
existing on the property at the time of sale, the buyer is free to deduce
such amount from the consideration he has to pay. It is in correspondence
with the duty of the seller to execute a proper conveyance.

Right of a buyer
Refund of money paid on proper denial to accept delivery (Section 55(6)(b)): The
buyer is entitled to receive the amount of any purchase money with interest
properly paid by him to the seller in anticipation of delivery. The buyer is also
entitled to get a refund of any earnest money paid by him or the cost awarded to
him in a suit to compel the specific performance of a contract or to obtain a
decree for its rescission.

Liabilities and rights of the seller and the buyer after

completion of the sale
1. To give possession (Section 55(1)(f)): The seller is bound to put the buyer or
person as directed by the buyer in possession of the property on being so
required. This clause uses the words- “…such possession of the property as its
nature admits.” It refers to the nature of possession. For instance, in the case
of tangible immoveable property, physical control is to be given over property.
In the case of intangible immoveable property, the possession is symbolic.
2. Implied liability (Section 55(2)) – The seller must undertake impliedly that he
holds the perfect title to the property and is transferring the same free from
any encumbrance. The rights or interest created by the sale shall vest with the
transferee and may be enforced by every person in whom that right or interest
is for the whole or any part thereof from time to time is vested.
3. To deliver title deeds on receipt of price (Section 55(3)): The seller is bound to
hand over all the documents relating to the title of the property to the buyer
on payment of the whole of the purchase money. Proviso (a) to Section 55(3)
 states that if a seller retains any part of the property comprised in the
documents, he is entitled to keep the documents as well.

Right of a seller
Charges upon the property for the unpaid price (Section 55(4)(b)): Where the
ownership has been transferred to the buyer before payment of the whole
consideration amount, the seller becomes entitled to a charge upon the property
which is in the hands of the buyer or any transferee without consideration or any
transferee with notice of non-payment. The charge will be for the amount of the
purchase money or the part remaining unpaid or for the interest on such amount
or part from the date on which possession has been delivered.

1. Encumbrances and court sale

Generally, a sale needs to be free of any kind of lien, charge, or obligation.
However, there may be instances in which a property with encumbrances has
been sold. Section 57 of the Act caters to such a situation. This Section covers
both the sales made by the court or in the execution of a decree and those made
outside the court. It offers a legal procedure to obtain a declaration from the
court that the property is free from any kind of encumbrance.

2. Rescission of a contract of sale

To rescind a contract means to do away with it. Rescission is an equitable remedy

that allows the contracting parties to cancel the contract and return to the
position they would have had if the contract had not been made. A sale
transaction is similar to a contract. It can also be rescinded by the parties in the
same manner as other contracts.

Rescission of a contract is governed under Sections 27-30 of the Specific Relief

Act, 1963. Section 27(1) of this Act provides the ground of rescission, which can
be claimed by any person interested in the contract. These grounds are
mentioned as follows:

1. Where the contract is voidable or terminable by the plaintiff;

2. Where the contract is unlawful for causes not apparent but the defendant is
to be blamed more.

Q .3 what is Easement and its different type under easement act 1882.

Meaning and Nature of Easements

The concept of easement has been defined under Section 4 of The Indian
Easements Act, 1882.

According to the provisions of Section 4, an Easementary right is a right

possessed by the owner or occupier of the land on some other land, not his own,
the purpose of which is to provide the beneficial enjoyment of the land. This right
is granted because without the existence of this right an occupier or owner
cannot fully enjoy his own property.

It includes the right to do or continue to do something or to prevent or to

continue to prevent something in connection with or in respect of some other
land, which is not his own, for the enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the earth and the
words ‘beneficial enjoyment’ denotes convenience, advantage or any amenity or
any necessity. The owner or occupier referred to in the provision is known as the
Dominant Owner and the land for the benefit of which the easementary right
exists is called Dominant Heritage. Whereas the owner upon whose land the
liability is imposed is known as the Serviant Owner and the land on which such a
liability is imposed to do or prevent something, is known as the Servient Heritage.
Illustrations-
1. ‘P’ being the owner of certain land or house has a right of way over Q’s
house, adjacent to his house, to move out of the street. This is known as
right of easement.
2. A voluntary dedication of right by ‘X’ to the public for passing or re-passing
over a surface of certain land is not a right of easement.
3. X’s right to go on his neighbour Y’s household for fetching water from the
well for the purpose of his own household is a right of easement. Here, the
way to the well is through Y’s land only. Hence, X has an easementary right
to pass through Y’s household.

Essentials of Easements
1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two properties i.e
dominant and servient heritage is a must. This is because as per the definition, it
is the right exercised by the owner or occupier of one land for enjoying the
benefit of his/her land, over the land of some other person. Dominant and
servient heritage cannot be one. Thus, the existence of two properties and that to
be separate from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties shall be
different and not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a way which
includes express and implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a right through

which the dominant owner does some act to exercise the right over the land of
the servient owner. Whereas, the latter denotes an act of prevention. In a
negative easement the dominant owner prevents or restricts the servient owner
from doing certain act or acts.

Classification of Easements
Section 5 of the The Indian Easements Act, 1882 classifies the easements as
follows–

1.Continuous or Discontinuous

Continuous easements are the one whose enjoyment may be continued without
the intervention of any human conduct or act of a man. There is no interference
by a man and it adds special quality to the property. While, on the other hand,
right of easement for the enjoyment which an interference of a man is required is
known as discontinuous. In this kind of easement, it is necessary that a human act
is done on the servient heritage.

2. Apparent or Non- Apparent

An apparent easement is one the existence of which can be seen through a

permanent sign. It can be visible by a careful examination and on reasonable
foresightedness. It is also known as express easement. An inspection is required
to check the existence of a right. For example- There is a drain from A’s land to B’s
land and from there it led to an open yard. This can be visible through a clear
inspection and is an apparent easement.

Whereas, a non-apparent easement is just opposite of what apparent easement

is. This kind of easement is not visible through an inspection. There is no
permanent sign as such. The right is in use but is not visible and thus, is known as
an invisible easement. For example, A’s right annexed to A’s land to prevent B
from building on his own house.
Another example to explain non-apparent easement is that the right to stop
construction over a certain height.

3.Limitations or Conditions of Easements

An easementary right may be permanent or for a period of years or for a limited

term. It can also be subjected to periodical interruption or may be exercisable at
a particular place, between certain hours and for a certain or particular purpose.
This right can also be granted on a condition that such a right shall become void
or voidable on happening of some event or non performing of some act. These
limitations or conditions which regard to the right of easement has been specified
under Section 6 of the Act.

4.Restrictive Easements

Section 7 specifies that the easements are restrictive of certain rights which are as
follows-

 Exclusive right to enjoy

 Right to advantages arising out of the situation

5. Profit a Prendre

According to The Indian Easements Act, 1882, profit a prendre is a part of the
definition of easements. An instance to explain the concept is, a right to take
earth from the land of the other person for making an earthenware is a profit a
prendre. This is basically a profit made out of the land of the other person. Other
examples of profit a prendre-

 Right of fishery
 Right to take fruits of trees in the season

This is the right which is exercised on the land appurtenant to the dominant
heritage. Hence, there shall be the existence of two heritages i.e. dominant and
servient. The owner of the dominant heritage exercises this right on the property
of the servient owner. Profit a prendre is a right to do something on the land of
servient tenement for more beneficial enjoyment of the dominant heritage.

Conclusion
The Indian Easements Act, provides for the whole concept of right of easements
and its regulation in India. Easement as defined under Section 4 of the Act is a
right enjoyed by the owner of the dominant heritage over the heritage of servient
owner for the beneficial enjoyment of his own land. It not only defines what
actually easements consist of but also provides with its classification. Easements
can be prescriptive, customary, quasi and of necessity.

Q. 4 What is lease. And its characteristic of a lease.

Definition of Lease
Section 105 states the definition of a lease which states that it is a transfer of
immovable property for a particular time period for a consideration of which the
transferee has accepted the terms surrounding the agreement. In a lease, right of
possession is transferred instead of the right of ownership. Transferor here is
called the lessor and the transferee i.e. the one enjoying the property for a period
is called lessee. Lease is governed by the Transfer of Property Act, 1882 and it is
given from Sections 105 to 117.

What are the essentials of a lease

 Parties must be competent: The parties in a lease agreement should be
competent to enter into a contract. Lesser should be entitled to a property
and have absolute rights over that property.
 Right of possession: Ownership rights are not transferred in a lease, only
the possession of the property is transferred.
 Rent: Consideration for a lease can be taken in the form of a rent or
premium.
  Acceptance: Lessee, who is to get the interest in the property after lease,
has to accept the lease agreement along with the time period and terms &
conditions imposed on the transfer.
 Time Period: Lease always takes place for a particular time period which is
to be specified in the lease agreement. It can be relaxed at the option of
the lessor.

Transferor is called the lessor, the transferee is called the lessee, the price is
called the premium, and the money, share, service or other thing to be so
rendered is called the rent.

Rights and liabilities of Lessor and lessee

Rights of the lessor are

1. A lessor has a right to recover the rent from the lease which was
mentioned in the lease agreement.
2. Lessor has a right to take back the possession of his property from
the lessee if the lessee commits any breach of condition.
3. Lessor has a right to recover the amount of damages from the
lessee if there is any damage done to the property.
4. Lessor has a right to take back the possession of his property from
the lessee on the termination of the lease term prescribed in the
agreement.

Liabilities of the lessor

1. The lessor has to disclose any material defect relating to the property which
the lessee does not know and cannot with ordinary supervision find out.
2. Lessor is bound by the request of the lessee to give him the right of
possession over his property.
3. Lessor can enter into a contract with the lessee if he agrees to abide by all
terms and conditions prescribed in the agreement, he can enjoy the
 property for the rest of the time period without any interference with an
obligation to pay the rent later on.

Rights of the lessee

During the period lease is in effect if any alteration is made (alluvion for the time
being in force) then that alteration will come under that same lease.

If a significant part of the property that has been leased is destroyed wholly or
partly by fire, by flood, by war, by the violent acts of the mob or by any other
means resulting in its inefficiency of being a benefit for the lessee. If this happens,
the lease is voidable at his option.

Liabilities of the lessee

1. Lessee is under an obligation to disclose all related material facts which are
likely to increase the value of the property for which the lessee has an interest
in and the lessor is not aware of.
2. Lessee is under an obligation to pay the rent or premium which is settled upon
in the agreement to the lessor or his agent within the prescribed time.
3. Lessee is under an obligation to maintain the property in the condition that he
initially got the property on commencement of the lease and he has to return
it in the same condition.
4. If lessee gets to know about any proceedings relating to the property or any
encroachment or any interference, then lessee is under an obligation to give
notice to the lessor.
5. Lessee has a right to use all the assets and goods which are on the property as
an owner would use which is preserving it to the best of its nature. He is
although under obligation to prevent any other person from using that asset
or good for any other purpose from what was prescribed in the lease
agreement.
6. The lessee cannot attach any permanent structure without the consent of the
lessor except for the purpose of agriculture.
7. Lessee is under an obligation to give the possession of the property back to the
lessor after the expiry of the prescribed term of the lease.

Q.5 what is mortgage under TP act 1882. And its type.

Mortgage under Transfer of Property Act, 1882

Section 58 to 104 of the Transfer of Property Act, 1882 deals with

mortgages and charges.

As per Section 58 of Transfer of Property Act, 1882 the following words

are defined

Mortgage

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

purpose of securing the payment of money advanced, an existing or
future debt or the performance of an engagement which may give rise
to a pecuniary liability.

Mortgage

A mortgage is a transfer of an interest in immovable property and it is

given as a security for a loan. The ownership of an immovable property
remains with the mortgagor itself but some interest in the property is
transferred to the mortgagee who has given a loan.

Essential conditions of a mortgage:

1. There is a transfer of interest to the mortgagee.

2. The interest created in specific immovable property.

3. The mortgage should be supported by consideration.

Mortgagor and Mortgagee

 The person who transfers the interest in an immovable property is

called the mortgagor.

 The person to whom it is transferred is called the mortgagee.

 Mortgage Money
The principal money and interest of which payment is secured for
time being is called mortgage money.
 Mortgage Deed
The instrument by which the transfer is effected is called a
mortgage deed.

Kinds of Mortgage
As per Section 58 of Transfer of Property, there are six kinds of mortgages

1. Simple Mortgage

Simple Mortgage is defined under Section 58(b) of Transfer of Property Act, 1882.

 In a simple mortgage, the mortgagor does not transfer immovable property

to the mortgagee but agrees to pay the mortgage money.
 The mortgagee agrees on a condition that in the event of not paying the
mortgage money the mortgagee has every right to sell the property and
can use the proceeds of the sale and such a transaction is called a simple
mortgage.
 2. Conditional Mortgage
 Mortgage by conditional sale is defined under Section 58(c) of Transfer of
Property Act, 1882.
 In this mortgagee places three conditions to the mortgagor, and the

mortgagee shall have the right to sell the property if:

1. mortgagor defaults in payment of mortgage money on a certain date.

2. as soon as the payment is made by the mortgagor the sale shall
become void.
3. on the payment of money by the mortgagor, the property is
transferred and such a transaction is called a mortgage by conditional
sale.

3. Usufructuary Mortgage

Usufructuary Mortgage is defined under Section 58(d) of Transfer of Property Act,

1882.

In this mortgage, the mortgagor delivers the possession of the property to the
mortgagee and authorises the mortgagee to retain such property until the
payment is made by the mortgagor and further authorise him to receive the rent
or profit arising from such mortgaged property and to appropriate the same
instead of payment of interest. Such a transaction is called a Usufructuary
transaction.

4. English Mortgage

English Mortgage is defined under Section 58(e) of Transfer of Property Act, 1882.

In this mortgage, the mortgagor transfers the property absolutely to the

mortgagee and binds himself that he will repay the mortgage money on the
specified date and lays down a condition that on repayment of money mortgagee
shall re-transfer the property. Such a transaction is called an English mortgage
transaction.

5. Deposit of title-deeds
Deposit of title -deeds are defined under Section 58(f) of Transfer of Property Act,
1882.

In this mortgage where a person is in Calcutta, Madras, Bombay and in any other
towns as specified by the state government and the mortgagor delivers to a
creditor or his agent the documents of title of immovable property with an intent
to create security and then such a transaction is called Deposits of title-deeds.

Anomalous Mortgage

 An Anomalous Mortgage is defined under Section 58(f) of Transfer of

Property Act, 1882.
 A mortgage which is not any one of the mortgages mentioned above is
called an anomalous mortgage.

Rights and Liabilities of Mortgagor and Mortgagee

Rights of Mortgagor

1. Right of Redemption
As per Section 60 of the Transfer of the Property Act, 1882 one of the important
rights of the mortgagor is the right to redeem the mortgage.

 Once the money has become due on the specified date the mortgagor
has the right to get back the mortgaged property on paying the money
to the mortgagee.
 Right to redemption is a statutory and legal right which cannot be
extinguished on the entering into any agreement.
2. Right to transfer to a third party
 As per Section 60A of the Transfer of Property Act, 1882 the mortgagor
may direct the mortgagee to assign the mortgage debt and authorise
him to transfer the property to a third party instead of transferring him
the same.
 The object of this section is to enable the mortgagor to pay off the debt
of the mortgagee by taking a loan from another person on the security
of the same property.

3. Right to inspection and production of documents

As per Section 60B of the Transfer of Property Act, 1882 the mortgagor may
inspect anytime the document of title relating to the mortgaged property which is
in the custody of the mortgagee.

The costs and expenses incurred while inspecting the documents may be borne by
the mortgagee.

4. Right to accession

 As per Section 63 of the Transfer of Property Act, 1882 during the

subsistence of the mortgage if any accession is made to the mortgaged
property where the property is in possession of the mortgagor itself and then
the mortgagor has a right to take in accession after the redemption of the
mortgage.

5. Right to improvement
 As per Section 63A of the Transfer of Property Act, 1882 during the
subsistence of the mortgage if any improvement is made to the property
where the property is in possession of the mortgagee and then the
mortgagor has a right to take the improvements made to the property upon
the redemption.
 But where the improvements were at cost of the mortgage by preserving the
property from destruction then the mortgagor is liable to pay the cost which
is incurred by the mortgagee in preserving the property.

6. Right to a renewed lease

 As per Section 64 of the Transfer of Property Act, 1882 where the
property which the mortgagor has given for mortgage is a leasehold
property if the mortgagee renews the leases during the subsistence of
mortgage the mortgagor shall obtain the benefit of the lease upon the
redemption of the mortgage.

Liabilities of Mortgagor
Section 65 and 66 of the Transfer of the Property Act, 1882 deals with the
liabilities of the mortgagor.

Section 65 is the implied liabilities which are laid upon the mortgagor. Subject to
the contrary, every mortgagor is deemed to have made the following covenant.

a. Covenant for title

 As per Section 65(a) of the Transfer of the Property Act, 1882 there is an
implied covenant that the mortgagor transferring the interest in the
property to the mortgagee belongs to the mortgagor only.
 And it is necessary that the mortgagor possess the transferable interest in
the property.

b. Covenant for the defence of the title

As per Section 65(b) of the Transfer of the Property Act, 1882 the mortgagor has a
duty impliedly to either defend the title if anyone tries to take away the title from
the mortgagee or help the mortgagee in defending the title.

C. Covenant for payment of public charge

As per Section 65(c) of the Transfer of the Property Act, 1882 there is an implied
duty to the mortgagor that upon the execution of the mortgage the mortgagor
shall pay all the necessary changes.

d. Covenant for payment of rent

As per Section 65(d) of the Transfer of the Property Act, 1882 where the property
mortgaged by the mortgagor is a leasehold property there is an implied duty of
the mortgagor to pay the rent of the mortgaged property.

Rights of Mortgagee in Possession

1. Right to foreclosure or sale

As per Section 67 of the Transfer of Property Act, 1882 the mortgagee has a
right to foreclosure or sale.

When the mortgagor does not pay the mortgage money after the specified date
is over and the mortgagor‟s right to redeem the mortgaged money has become
complete but he has failed to avail that right then mortgagee gets a right to
institute suit for a decree that the mortgagor is absolutely debarred of his right
to redeem the property.

2. Right to sue

As per Section 68 of the Transfer of Property Act, 1882 the mortgagee has
every right to sue for the mortgaged money.

 The mortgagee can sue for mortgaged money in the following

circumstances:
1. where mortgagor binds himself to repay the money to the mortgagee.
2. where the property mortgaged by the mortgagee has been destroyed
either wholly or partially without the fault of the mortgagee.
3. where the property mortgaged, the mortgagee is deprived of the security
due to some wrongful act done by the mortgagor.
4. where the mortgagors fail to deliver the possession to the mortgagee.
3. Right to sell

As per Section 69 of the Transfer of Property Act, 1882 the mortgagee has
every right to sell the mortgaged property if the mortgaged money has not
been received

1. This right can be exercised by the mortgagee when the mortgagor makes
a default in payment of the mortgaged money after the specified date is
over.
2. This right can be exercised without the intervention of the court but only
in the following cases: if the mortgage is an English mortgage both the
mortgagor and mortgage should not be Hindu, Muslim, Buddhist, or a
member of any other race as specified by the state government;
3. when there is a contract between the mortgagor and mortgagee the sale
would take place without the intervention of the court in case of default in
payment of mortgaged money;
4. to exercise the above right the mortgaged property should be situated
either in Calcutta, Madras, Bombay, Ahmedabad, Kanpur, Allahabad,
Lucknow, Coimbatore, Cochin and Delhi.

4. Right to accession to mortgaged property

As per Section 70 of the Transfer of Property Act, 1882 if there is a contract

between the mortgagor and mortgagee that after the date of mortgage that the
mortgagee shall have the right to the accession made to the mortgaged
property then the mortgagee shall have right to all the accessions made.

Liabilities of Mortgagee in Possession

As per Section 76 of the Transfer of Property Act, 1882 list down the duties of the
mortgagee who is in possession of the property which belongs to the mortgagor.

The duties mentioned under are the statutory duties except for the duties which
are mentioned under clauses (c) and (d) the duties under these clauses are
mentioned in the contract by the parties.

1. Duty to manage the property

 The mortgagee has a duty to take reasonable care in the property of the
mortgagor.
  Though he has a liability to take reasonable care in the property the
mortgagee is not bound by the directions given by the mortgagor and the
mortgagee has acquired absolute rights in managing the property.
 The only condition which is put forward by the mortgagor is that he cannot
lease the property beyond the termination of his interest in the mortgaged
property.

2. Duty to collect rents and profits

The mortgagee who is in possession of the mortgagor’s property can collect the
rent and profits arising from the property.

One outstanding feature of usufructuary mortgagee is the rent and profits

collected from the property are appropriated by the mortgagee instead of
payment of interest.

Mortgagee becomes liable for the collection of rent and profit only to the
property which he is liable to acquire the rent and profits and not liable for the
whole rental property.

3. Duty to pay rent, revenue and public charges

If there is an agreement between the mortgagor and mortgagee that the

mortgagee has to pay the rents, revenue, taxes and outgoings then the
mortgagee is liable to pay all of them which have been agreed by him.

The mortgagee is not allowed to take the benefits without paying the taxes etc.

In case the money which has been obtained from the property is insufficient for
paying the charges, he may pay out of his own pocket and later add the amount
which has been paid by him to the debit account.

4. Duty to make necessary repairs

If there is an agreement between the mortgagor and mortgagee that the

mortgagee is bound to carry out all the necessary repairs in the property then
the mortgagee is liable to take care of the necessary repairs.

The necessary repairs in the property are to be made only when there is a
surplus amount from the rents and profits.
5. Duty to keep the accounts

The mortgagee has a statutory duty under this provision in keeping the correct
accounts of all incomes arose and expenses incurred by the mortgagee.

The only exception is when the mortgagee is entitled to adjust the income
against the interest he is not allowed to give full accounts because something
there may be no money left to use for other expenses.

6. Duty to apply rents and profit

This clause provides the manner in which the mortgagee who is in possession of
the property has to apply for rents and profits during the mortgage.

Q.6 What Is Gift in TP act.

Introduction
A Gift is generally regarded as a transfer of ownership of a property where the
sender willingly brings into effect such transfer without any compensation or
consideration in monetary value. It may be in the form of moveable or
immoveable property and the parties may be two living persons or the transfer
may take place only after the death of the transferor. When the transfer takes
place between two living people it is called inter vivos, and when it takes place
after the death of the transferor it is known as testamentary. Testamentary
transfers do not fall under the scope of Section 5 of the Transfer of Property
Act, and thus, only inter vivos transfers are referred to as gifts under this Act.

Gift
Section 122 of Transfer of Property Act defines a gift as the transfer of an
existing moveable or immovable property. Such transfers must be made
voluntarily and without consideration. The transferor is known as the donor and
the transferee is called the donee. The gift must be accepted by the donee. This
Section defines a gift as a gratuitous transfer of ownership in some property
that is already existing. The definition includes the transfer of both immovable
and moveable property.

Parties to a gift transfer

Donor
The donor must be a competent person, i.e., he must have the capacity as well
as the right to make the gift. If the donor has the capacity to contract then he is
deemed to have the capacity to make the gift. This implies that at the time of
making a gift, the donor must be of the age of majority and must have a sound
mind. Registered societies, firms, and institutions are referred to as juristic
persons, and they are also competent to make gifts. Gift by a minor or insane
person is void. Besides capacity, the donor must also have the right to make a
gift. The right of the donor is determined by his ownership rights in the property
at the time of the transfer because gift means the transfer of the ownership.

Donee
Donee does not need to be competent to contract. He may be any person in
existence at the date of making the gift. A gift made to an insane person, or a
minor, or even to a child existing in the mother‟s womb is valid subject to its
lawful acceptance by a competent person on his/her behalf. Juristic persons
such as firms, institutions, or companies are deemed as competent donee and
gift made to them is valid. However, the donee must be an ascertainable
person. The gift made to the general public is void.

Essential elements
There are the following five essentials of a valid gift:

1. Transfer of ownership
2. Existing property
3. Transfer without consideration
4. Voluntary transfer with free consent
5. Acceptance of the gift

Transfer of ownership

The transferor, i.e., the donor must divest himself of absolute interest in the
property and vest it in the transferee, i.e., the donee. Transfer of absolute
interests implies the transfer of all the rights and liabilities in respect of the
property. To be able to effect such a transfer, the donor must have the right to
ownership of the said property. Nothing less than ownership may be transferred
by way of gift. However, like other transfers, the gift may also be made subject to
certain conditions.

Existing property
The property, which is the subject matter of the gift may be of any kind, movable,
immovable, tangible, or intangible, but it must be in existence at the time of
making a gift, and it must be transferable within the meaning of Section 5 of the
Transfer of Property Act.

Gift of any kind of future property is deemed void. And the gift of spes
successionis (expectation of succession) or mere chance of inheriting property or
mere right to sue, is also void.

Transfer without consideration

A gift must be gratuitous, i.e., the ownership in the property must be transferred
without any consideration. Even a negligible property or a very small sum of
money given by the transferee in consideration for the transfer of a very big
property would make the transaction either a sale or an exchange. Consideration,
for the purpose of this section, shall have the same meaning as given in Section
2(d) of the Indian Contract Act. The consideration is pecuniary in nature, i.e., in
monetary terms. Mutual love and affection is not pecuniary consideration and
thus, property transferred in consideration of love and affection is a transfer
without consideration and hence a gift.

Voluntary transfer with free consent

The donor must make the gift voluntarily, i.e., in the exercise of his own free will
and his consent as is a free consent. Free consent is when the donor has the
complete freedom to make the gift without any force, fraud coercion, and undue
influence. Donor’s will in executing the deed of the gift must be free and
independent. Voluntary act on a donor’s part also means that he/she has
executed the gift deed in full knowledge of the circumstances and nature of the
transaction. The burden of proving that the gift was made voluntarily with the
free consent of the donor lies on the donee.
Acceptance of gift
The donee must accept the gift. Property cannot be given to a person, even in
gift, against his/her consent. The donee may refuse the gift as in cases of non-
beneficial property or onerous gift. Onerous gifts are such where the burden or
liability exceeds the actual market value of the subject matter. Thus,
acceptance of the gift is necessary. Such acceptance may be either express or
implied. Implied acceptance may be inferred from the conduct of the donee and
the surrounding circumstances. When the donee takes possession of the
property or of the title deeds, there is acceptance of the gift.

Modes of making a gift

Section 123 of the Transfer of Property Act deals with the formalities necessary
for the completion of a gift. The gift is enforceable by law only when these
formalities are observed. This Section lays down two modes for effecting a gift
depending upon the nature of the property. For the gift of immovable property,
registration is necessary. In case the property is movable, it may be transferred by
the delivery of possession. Mode of transfer of various types of properties are
discussed below:

1. Immovable properties
In the case of immovable property, registration of the transfer is necessary
irrespective of the value of the property. Registration of a document including
gift-deed implies that the transaction is in writing, signed by the executant
(donor), attested by two competent persons and duly stamped before the
registration formalities are officially completed.

In the case of Gomtibai v. Mattulal, it was held by the Supreme Court that in
the absence of written instrument executed by the donor, attestation by two
witnesses, registration of the instrument and acceptance thereof by the donee,
the gift of immovable property is incomplete.

2. Movable properties
In the case of movable properties, it may be completed by the delivery of
possession. Registration in such cases is optional. The gift of a movable
property effected by delivery of possession is valid, irrespective of the valuation
of the property. The mode of delivering the property depends upon the nature
of the property. The only things necessary are the transfer of the title and
possession in favour of the donee. Anything which the parties agree to consider
as delivery may be done to deliver the goods or which has the effect of putting
the property in the possession of the transferee may be considered as a
delivery.

3. Actionable claims

Actionable claims are defined under Section 3 of the Transfer of Property Act. It
may be unsecured money debts or right to claim movables not in possession of
the claimant. Actionable claims are beneficial interests in movable. They are
thus intangible movable properties. Transfer of actionable claims comes under
the purview of Section 130 of the Act. Actionable claims may be transferred as
gift by an instrument in writing signed by the transferor or his duly authorised
agent. Registration and delivery of possession are not necessary.

4. A gift of future property

Gift of future property is merely a promise which is unenforceable by law.
Thus, Section 124 of the Transfer of Property Act renders the gift of future
property void. If a gift is made which consists of both present as well as future
property, i.e., one of the properties is in existence at the time of making the gift
and the other is not, the whole gift is not considered void. Only the part relating
to the future property is considered void. Gift of future income of a property
before it had accrued would also be void under Section 124.

5. A gift made to more than one donee

Section 125 of the Act says that in case a property is gifted to more than one
donee, one of whom does not accept it, the gift, to the extent of the interest
which he would have taken becomes void. Such interest reverts to the
transferor and does not go to the other donee.

Suspension & revocation of Gift

1. Revocation by mutual agreement. Where the donor and the donee

mutually agree that the gift shall be suspended or revoked upon the happening
of an event not dependent on the will of the donor, it is called a gift subject to a
condition laid down by mutual agreement.
2. Revocation by the rescission of the contract
Gift is a transfer, it is thus preceded by a contract for such transfer. This
contract may either be express or implied. If the preceding contract is rescinded
then there is no question of the subsequent transfer to take place. Thus, under
Section 126, a gift can be revoked on any grounds on which its contract may
be rescinded.

For example, Section 19 of the Indian Contract Act makes a contract voidable
at the option of the party whose consent has been obtained forcefully, by
coercion, undue influence, misrepresentation, or fraud. Thus, if a gift is not
made voluntarily, i.e., the consent of the donor is obtained by fraud,
misrepresentation, undue influence, or force, the gift may be rescinded by the
donor.

3. Bonafide purchaser
The last paragraph of Section 126 of the Act protects the right of a bonafide
purchaser. A bonafide purchaser is a person who has purchased the gifted
property in good faith and with consideration. When such a purchaser is
unfamiliar with the condition attached to the property which was a subject of a
conditional gift then no provision of revocation or suspension of such gift shall
apply.

 Muslim-gifts (Hiba)
These are governed by the rules of Muslim Personal Law. The only essential
requirements are declaration, acceptance and delivery of possession.
Registration is not necessary irrespective of the value of the gift. In case of a
gift of immovable property worth more than Rupees 100, Registration
under Section 17 of the Indian Registration Act is must, as it is applicable to
Muslims as well. For a gift to be Hiba only the donor is required to be Muslim,
the religion of the donee is irrelevant.
Q. what is part performance in transfer of property act 1882.

Under the Transfer of Property Act, 1882, Section 53A describes part
performance and its main aim was to protect the transferee from fraud. Its
purpose was to avoid fraud or misdemeanour on part of the buyer so that he
can enjoy his right of property.

Under the Transfer of Property Act, 1882 Section 53A that deals with this
doctrine states that:

This section states that when a transferor or someone on his behalf transfer‟s
his immovable property for some consideration in a written manner that is
signed by him to the transferee or someone on his behalf on some terms with
reasonable certitude. And in the advancement of such contract, he had used his
right of part performance to exercise possession over the property or be in
partly use of it and acted on such contract.

Introduction
Imagine a situation where A, the buyer, enters into an agreement for sale with B,
the seller, to buy B’s flat for Rs. 50 lakhs. A proceeded with the agreement and
paid Rs. 7 lakhs in advance to buy the flat from B. After receiving the advance
from A, A took possession of B’s flat with the promise to pay the remaining
amount within a reasonable time. Here, A is the transferee, and B is the
transferor. After a reasonable period of time, the buyer, A, is ready to fulfil his
complete performance of the contract and gain full rights over the flat by paying
the remaining agreed amount, i.e., Rs. 43 lakhs. But B wants to terminate the
agreement with A because he received a better offer from a third party, C, who
conveyed his intention of buying his flat for a better rate of Rs. 70 lakhs. Then, B,
by using his rights as the owner of the flat, asks A to hand over possession of the
flat.

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. In civil
law, the motive of the parties who are acting is irrelevant. Thus, a wrongful act
does not become legal just because the motive of the wrongdoer is fair enough.
Likewise, just because an individual has an ulterior motive, the lawful act done
by him does not turn out to be illegal. However, this rule has a few exceptions,
one of which is Section 53 of the Transfer of Property Act.

This Section talks about the doctrine of fraudulent transfer. It deals with two
aspects. One, the transfer of property was made with a motive to defeat or
delay the creditors of the transferor, and two, the transfer of property was
made with a motive to defraud the subsequent transferee. The section was
incorporated to protect the interests of a creditor of the transferor and the
subsequent transferee of the property against fraud.

Every transfer of property with such above-mentioned motives on the part of

the transferor is voidable at the option of the party so defeated or defrauded,
i.e., the creditor or subsequent transferee. Because of this, the burden of proof
is also shifted to the creditor or subsequent transferee.

For instance, a fraudulent transfer takes place when A transfers her property to
B without giving possession and ownership of the said property to B to keep it
out of the reach of her creditor. Here, the said transfer is voidable at the option
of B.

A civil suit may result from a fraudulent transfer of property. At the request of
the aggrieved creditor, the court may declare the said transfer of property void.

 When we consider the phrase “part performance of a written contract,” it

means those acts that have been partly performed to execute a contract, not
those acts that are preparatory, incidental, merely accommodating, or any
other arrangements.

Let’s take an example where the buyer, A, agrees to the offer made by the
seller, B, regarding the purchase of a flat in his apartment where the agreed
consideration is Rs. 30 lakhs. One day, A withdrew Rs. 15 lakhs from his bank
account and took that to his digital locker at home. This act by A is not said to be
part performance. But if A, instead of keeping Rs. 15 lakhs in the locker, gave it to
the seller, B, it will be considered an “act of part performance”. The rationale
based on this conclusion is that a contractual obligation of A is to pay Rs. 30 lakhs
to B, for which, in return, A will obtain possession, ownership, and all other rights
to the immovable property from B by registering the property in A’s name. A paid
B Rs. 15 lakhs outside of Rs. 30 lakhs, which is just a part of his total performance.
So, in this case, A has done part performance of his contractual duty.
Ingredients of Section 53A

Contract for transfer of an immovable property

Before all ingredients, the most fundamental ingredient is that there must be a
contract between two parties to transfer an immovable property. If there is no
such contract in the first place, then there will be no room for dispute. Even if
someone disputes in court, Section 53A of the Act does not apply if no contract
is made between the parties to the suit.

Contract in writing
The contract should always be in writing to make the transfer of an immovable
property legally valid, and only then is the application of Section 53A possible.
Otherwise, the transferee cannot avail himself of the protection that is provided
by Section 53A of the Act.

Duly execution of the contract

Making a contract in writing is not sufficient by itself. A properly executed

contract is also required. It means the contract must be signed by the transferor
or any other authorised person on his behalf. The person who wishes to regain
possession of the property must also sign the contract, either

Reasonable certainty
When the contract is in writing and signed by the transferor, it is not said to be
considered for application of Section 53A of the Act. The other criterion is the
contents of the contract should make sure of being reasonably and strongly
certain. The ability to determine the terms of a written contract with a
reasonable degree of clarity is one of the ingredients of Section 53A, as decided
by the Allahabad High Court in the case of Smt. Hamida v. Smt. Humer and
Ors. (1992). In other words, the terms and conditions of a contract required to
form a transfer must be reasonably certain and expressly stated, that is, there
should not be any vague or ambiguous terms or phrases.
Valid contract
Apart from the above-stated conditions, it should be underlined that Section
53A applies only when the contract relating to the transfer of immovable
property is valid in every reasonable way. That means all the essential elements
of a valid contract should be met. In short, the contract in question should be
legally enforceable under the Indian Contract Act, 1872.

Immovable property
As already stated, the Transfer of Property Act mostly deals with immovable
properties. This statement directly conveys that Section 53A of the Act covers
and applies to only those cases where the transfer of immovable property is
dealt with. Even though it was backed by consideration, it does not apply to a
contract for the transfer of movable property or goods.

Act of part performance by the transferee

The contract had to be partially fulfilled. There is no place in Section 53A for
confusion regarding what might qualify as a “part performance” in accordance
with the Section. According to this provision, the transferee must have acquired
possession of the immovable property in question, either entirely or partially,
from the transferor as a result of the contract. In cases where the transferee
already holds possession of the property, retains the possession while
performing a part of the contract, and takes action to further the contract, such
as by making structural changes, building new structures, paying additional
money, etc.

Q. what is right to redeem by mortgagor in TP act.

This doctrine is recognized under section 60 of TP Act, 1882. Which says that, it is
not necessary that the fusion of rights should be by act of parties. What is
necessary is that the mortgage should have acquired the share of mortgagor.
Whether he acquired it by purchase or inheritance or otherwise, the result is the
same and the mode of acquisition is immaterial.

However, Article 61(a) of the Limitation Act, 1963 which says that “the mortgagor
can exercise his right to redeem within 30 years from the time of the accrual of
the right to redeem”. And Section 27 read with section 3 of Limitation Act, 1963
says that “On the expiry of 30 years above said, the right in mortgaged property is
extinguished”. The contradiction between supra is briefly discussed herewith.

Transfer of Property Act

The mortgagor’s right to redeem the mortgage is jealously guarded by the Courts.
If the mortgagor stipulates with the mortgagee to redeem the property with a
specific time and to forfeit the property in the event of default, he will not be held
to his contract right to redeem has gone by, the mortgagor can still in equity claim
to redeem the property. This right of the Mortgagor is called Equity of
Redemption as provided in TP Act, 1882, extracted herein;

 Section 60- Right of mortgagor to redeem

1. ……Provided that the right conferred by this section has not been extinguished
by act of the parties or by decree of a Court. The right conferred by this section
is called a right to redeem, and a suit to enforce it is called a suit for
redemption.

2. Nothing in this section shall be deemed to render invalid any provision to the
effect that, if the time fixed for payment of the principal money has been allowed
to pass or no such time has been fixed. The mortgagee shall be entitled to
reasonable notice before payment or tender of such money.

3. Redemption of portion of mortgaged property.—Nothing in this section shall

entitle a person interested in a share only of the mortgaged property to redeem
his own share only, on payment of a proportionate part of the amount remaining
due on the mortgage, except only where a mortgagee, or, if there are more
mortgagees than one, all such mortgagees, has or have acquired, in whole or in
part, the share of a mortgagor”..

4. From the above, it is clear that there can be no additional contract in the
mortgage deed which alters the essential nature of the mortgage contract so as to
preclude the mortgagor from redeeming. A clause in a mortgage making it
irredeemable after a period is clearly repugnant to the mortgagor’s equity of
redemption or equitable right to redeem. The familiar instance of such clause is
where the mortgagee is asked to treat himself – himself as the owner of the
property if the mortgage money is not repaid on or before the specified day. Such
covenant is ignored as it is a clog on the equity of redemption. Hence, the only
remedy for the mortgagee is to file a suit for foreclosure before the competent
Court of Law for relief of foreclosure, after the stipulated time is reckoned.

Conclusion

In my opinion, Firstly, when the stipulated time to redeem the mortgaged

property is reckoned, Under Section 27 read with Section 3 of Limitation Act, the
Mortgagee shall be owner of mortgaged property. Secondly, However, Mortgagee
would only get a better title to the mortgaged property by way of obtaining
decree from the appropriate Court by invoking Section. 27 of Limitation Act, 1963,
after stipulated time is reckoned. Because, it is Res-Integra that the right to
redeem is extinguished either by merger or by subsequent Agreement between
the same parties or by decree passed by the competent Court of law.

Q. 2 Short Answer.

1. Ostensible ownership.

What is Section 41 of Transfer of Property Act

The transfer of property to an ostensible owner is dealt with under Section 41 of
the Transfer of Property Act, 1882. According to it, when a person acts on the
express or implied consent of a person who is vested in a certain immovable
property, that person is deemed the „ostensible owner‟ of that property.

Necessary conditions for the application of Section 41 of Transfer of

Property Act
To make use of this Section, one must meet specific prerequisites. They‟re as
follows:

1. The most fundamental criterion is that the individual transferring the

property must be the ostensible owner.
2. The actual owner‟s consent, which might be implied or expressed, is
necessary.
 3. In exchange for the property, the ostensible owner must be
compensated.
4. The transferee must use reasonable caution over the transferor‟s
power over the property, and whether the transferee acted with bona
fide intention.
5. This section, needless to say, does not apply not to the transfer of
movable property, and only to that of immovable.

Rule of estoppel under Section 41 of Transfer of Property Act

The law of estoppel argues that when the real owner of property depicts some
other person as the owner to third parties, and the latter act on that depiction,
the real owner cannot rescind his representation. This provision establishes an
estoppel rule against the real owner. The rule of Section 41 of the Act, 1988 is
derived from Section 115 of the Indian Evidence Act, 1872, which defines the law
of estoppel.

1.Burden of proof

The burden of proof for the transferee seeking immunity under this provision is
on the transferee to show that he or she was an ostensible owner. He must
establish that the transferor is the property’s ostensible owner or that the
transaction is a Benami transaction. He must also show that he took reasonable
precautions to protect his interests. The burden of proof transfers to the other
side if the other party claims to have evidence leading to a starting point of
inquiry that, if pursued or studied, would have led to the disclosure of truth. If a
person claims ownership of property that has been transferred to another person,
he must prove it.

Landmark case laws concerning Section 41 of Transfer of Property Act

1. Ramcoomar Koondoo v. John and Maria McQueen (1872).

2. Md. Shafiqullah Khan v. Md. Samiullah Khan (1929).

3. Niras Purbe And Anr. v. Musammat Tetri Pasin And Ors. (1915).

2. Non-applicability of the provision under Section 41 of Transfer of Property Act

If during the pleadings, it is not mentioned that the transferor was an ostensible
owner with the voluntary consent of the real original owner of the property, the
plaintiff’s claim for the title to the property as a result of a transfer of land by an
individual besides the owner to him would be dismissed. The cancellation order
can be appealed on the merits by subsequent purchasers, but the sale in their
favour is not protected by Section 41 of the Act.

2. Some important terms and definition of TP act.

3. Act of Parties– An act that has been done with the desire and consent of the
parties. It is voluntary in nature.

4. Immovable property– It is not defined in the Transfer of Property Act.

Therefore it is understood from the General Clauses Act, 1897. Any piece of land,
benefits accruing from land, things which are attached to the earth, rooted in the
earth, embedded in the earth, and attached to what is so attached in the earth.

5. Attestation– It means when two or more witnesses see the signature of the
party executing the deed and signature of the party in whose favour deed is made
or any authorized agent who is authorized to do signature on behalf of parties.

6. Intervivos– Between two living persons. In the Transfer of Property Act, there
is a transfer between two living persons.

7. Easement– It is the right and enjoyment of a person on other’s land or

property. For example, use of parking area adjacent to ground floor by building
residents. Though it is the area covered under the ground floor, but it has to be
used to by all.

8. Oral transfer– It is a transfer that is made orally by a person to another person

by an act of delivery of possession.

9. Alienation– It means the right of an owner to dispose of the immovable

property. It may be through sale, gift, exchange, etc.
10. Repugnant– It means contradiction or inconsistent to what is already stated
or mentioned.

11. Perpetuity– It means an indefinite period. The rule against perpetuity clearly
prevents restrictions being imposed on the alienation of property. It is said that
the property should keep circulating. Any person can’t be the owner of a property
for an indefinite period of time. This rule is mainly for the unborn child. Transfer
to an unborn child can be extended or postponed to preceding life interest and till
the child becomes major and not more than that.

12. Vested interest– It is an interest which vests in a person without any

condition in it. For example, the property of the father is to be succeeded by his
son is the vested right of the son unless any contrary intention appears on the
part of the father.

13. Unborn person– A person who is not in existence at the time when the
transfer was made.

14. Contingent interest– It is an interest which a person receives on the

happening of any event. Such an event whose happening is not in the hands of
the receiver of interest. For example, A promises to give a piece of land to C, if B
in future marries D.

15. Conditional transfer– It is a transfer made on fulfillment of condition set by

the transferor like a transfer to take place if A walks 200 miles in an hour. Such a
condition is void. The condition has to be reasonable in nature.

16. Ulterior disposition– It is an interest that a person gets on the failure of prior
disposition in the same transaction. For example, let us suppose, A transfers his
property to his wife B if A dies in the lifetime of B. But on the death of B prior to
the death of A, it shall transfer to C.

17. Doctrine of Election– When any third person transfers the property of the
owner of which he has no right to transfer and gives the owner options to elect
either to confirm the transfer or disagree to the transfer. If he disagrees, then he
shall not get any benefit which he would have received if he affirms it.
18. Gratuitous transfer– It is a transfer that is made in natural love and
affection and not on consideration.

19. Lis pendens– During the pendency in any court of any suit or proceeding in
which right to immovable property is in question, then such property can’t be
transferred or dealt with.

20. Tangible property– The property which can be touched or sensed. It is the
property that is in physical form.

21. Mortgage– It is the transfer of an interest in immovable property for securing

the payment of debt.

22. Title deeds– These are the documents relating to the title of immovable
property.

23. Redeem– It means to recover back. When the mortgage money becomes due,
the mortgagor has the right to make payment and redeem his property or if the
title deeds were given, then redemption of documents from the mortgagee.

24. Operation of law– When the rights and liabilities are dictated and authored
by the existing legal principles.

25. Arrears of rent– The rent is supposed to be paid within the due date. But
when the payment of rent is delayed and not paid on time, then it is known as
arrears of rent.

26. Efflux of time– When the period prescribed or specified is expired with
passage of time.

27. Tenancy at sufferance– It is when the tenant after the expiry of the lease
period continues to be in possession of the leased property. The possession is
rightful, but the continuance is wrongful.
28. Onerous gift– It is the transfer of numerous things in one transaction to the
same person. The other person has to accept it as a whole. He cannot refuse to
accept anything burdened with obligation.

29. Universal donee– The person who accepts the onerous gift from the donor is
known as universal donee. Who is known as universal donee?

The Hindu law recognises the concept of 'Universal Donor' in the form of
'sanyasi', which is a way of life where people renounce all their worldly
possessions and take up spiritual life. A universal donee is the person who
receives all the properties of the donor under a gift.

30. Executant– The person who is executing the deed of conveyance is known as
an executant.

31. Instrument– In the Transfer of Property Act, instrument means non-

testamentary instrument. The will is not included because this act deals with only
intervivos transfer.

32. Notice– It means actual knowledge of a fact. The notice may be actual or
constructive.

33. Legal personality– The personality which is capable of holding rights in the
eyes of the law.

34. Right to sue– The person who has the rights against others has the right to
sue on breach of their duty towards him.

35. Subrogation– It is a doctrine of equity. When one person secures another

person by paying him the damages caused by third party, then the party securing,
steps into the shoes of the person secured, and asks for the claim from the person
who has injured. For example, generally in an accident it is the insurance
company who insures the injured party, and then insurance company steps into
the shoes of person secured and claims money from default party.
36. Prior interest– When the person to whom the interest is sought to vest
doesn’t exist at the time of transfer, then a prior interest is created for the time
being till the beneficiary comes in existence. It may be any person in whom such
interest vests. It may be the mother or father or guardian of the beneficiary. It
happens in the case of an unborn child.

37. Power of attorney– It means to appoint a representative for the property or

finance who shall be vested with limited powers and authorities. His position is
similar to the owner, but he is not the owner.

38. Reversion– It means to create future interest in the property while

transferring to another. The other person gets the property for usage, and after
the lapse of time, it reverts back to the owner or grantor. For example, A gave his
property to B, retaining future interest in it, that after the death of B, it shall
return to A or his heirs.

39. Remainder– It is different from reversion. The property here does not revert
back to the owner or grantor but to the third party. For example, A gave his
property to B, after the death of B, the property shall go to C and not A or his
heirs.

40. Future property– It is the property that is not in existence at the time of
transfer. Such property can’t be transferred because, at the time of transfer, it is
necessary for the property to be in existence.

Q.3 Rule against perpetuity.

Rule against Perpetuity

Section 14 of the ‘The Transfer of Property Act, 1882’ (TPA) is rightly called ‘Rule
against perpetuity’ as it limits the maximum time period beyond which property
cannot be transferred. Starting from the date that the transferor transfers the
property + lifetime of the last prior interest holder’s + gestation period of the
unborn beneficiary + 18 years, ( ‘Age of majority of persons domiciled in
India’ under section 3 of The Majority Act, 1875). This period is called the
perpetuity period, and vesting of the property in the transferee cannot be
postponed beyond this limit.

The above transfer is contingent to many other conditions viz. sections 5, 10, 13,
15, 16, 18 and 20 of TPA. However, it is to be borne in mind that section 18
of TPA allows transfer in perpetuity for benefit of public, and so provisions of
section 14 & 16 do not apply in such cases.

Exceptions to rule of perpetuity

1. Section 18 of TPA provides protection from rule against perpetuity when

the transfer is in favor of public viz. advancement of religion, knowledge,
commerce, health, safety or any other object beneficial to mankind.

2. Does not apply to personal agreements that do not create interest in

property.

3. Renewal of lease agreements.

4. Covenant for redemption of property under mortgage.

5. Charge created over property, as this does not amount to transfer of

interest.

6. Contract of pre-emption.

3. Doctrine of election in TP act.

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

35 and within 180-190 of Indian succession act. Election means a choice
between two alternative or conflicting rights. Granting two rights in such a
way that one is higher than the other, you can choose either of them. You
cannot have both. The applicant cannot use both, the recipient must choose
between two inconsistencies or alternative rights. Basically it means that the
person taking the benefit should also bear the burden.
 The doctrine of election is stated in transfer of property act 1882 in section
35 and within 180-190 of Indian succession act. Election means a choice
between two alternative or conflicting rights. Granting two rights in such a
way that one is higher than the other, you can choose either of them. You
cannot have both. The applicant cannot use both, the recipient must choose
between two inconsistencies or alternative rights. Basically it means that the
person taking the benefit should also bear the burden.

Election when necessary (section 35)

 Concede to transfer property on which he has no rights.
 In the same transaction, they must elect either to accept it or not, in
case he doesn‟t.
 He must release the benefits till then.
 The benefits he had till then goes back to the transferor as if not given.
Example: The farmhouse at Udaipur is a property of C. A by gift means
promises to give B 1,00,000. He accepts it although C now wants to retain
his farmhouse and A forfeits his gift. In such a course of action B died, now
his representative must pay C 1,00,000.

4. Fraudulent transfer.

Section 53 in The Transfer of Property Act, 1882.

Fraudulent transfer.—

1. Every transfer of immoveable property made with intent to defeat or delay

the creditors of the transferor shall be voidable at the option of any creditor so
defeated or delayed. Nothing in this sub-section shall impair the rights of a
transferee in good faith and for consideration. Nothing in this sub-section shall
affect any law for the time being in force relating to insolvency. A suit
instituted by a creditor (which term includes a decree-holder whether he has
or has not applied for execution of his decree) to avoid a transfer on the
ground that it has been made with intent to defeat or delay the creditors of
the transferor shall be instituted on behalf of, or for the benefit of, all the
creditors.
2. Every transfer of immoveable property made without consideration with
intent to defraud a subsequent transferee shall be voidable at the option of
such transferee. For the purposes of this sub-section, no transfer made
without consideration shall be deemed to have been made with intent to
defraud by reason only that a subsequent transfer for consideration was
made.

5. Foreclausure

What is foreclosure in transfer of property?

The right of foreclosure is a right available to a mortgagee to recover his

outstanding money. Mortgage is a transfer of interest in a property to secure
payment of money advanced. A mortgagee advances money to the mortgagor.
The mortgagor provides some property as security to the mortgagee.