PROPERTY LAW-UNIT 1

1. Define transfer of property. Essentials

Property is a key part of an individual's socio-economic life, and its meaning has broadened over time. Property law,
therefore, is a crucial part of civil law. The Transfer of Property Act, 1882, focuses on transfers between living
persons, like gifts or sales, where both the transferor and transferee must be alive at the time of the transfer.
Transfers through wills don't fall under this act since they take effect after the transferor's death. Transfers by law,
such as inheritance, are governed by personal laws or court orders. This Act applies throughout India except in
Punjab.
The transfer of property Act, 1882 provides for the transfers, relating to immovable property and it also lays down
the principles relating to the transfer of property regarding what constitutes a transfer and the conditions attached to
it.
Section 5- "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, or to himself and one or more other living persons, and "to transfer
property" is to perform such an act.
In this section, "living person" includes a company or association or body of individuals, whether incorporated or
not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or
by companies, associations, or bodies of individuals.
The word 'property' is a term of wide connotation, and in the Act, it has been used in any of the following senses:
1. Tangible material things, e.g., land and houses.
2. Rights which are exercised over material things, e.g., right to enjoy and possess, right to sell, or to make a
gift of things.
3. Rights which are not exercised over any material, e.g., a right to repayment of a debt.
The word 'transfer' in the Act has also been used in a wide sense. It may mean either the transfer of all the rights and
interests in the property or the transfer of one or more subordinate rights in the property.
The expression 'transfer of property' may, therefore, imply any one of the following things:
1. Transfer of things, e.g., sale of a house.
2. Transfer of one or more of the rights in a thing, e.g., mortgage of a house.
3. Transfer of a debt.
Analysis of Definition:
1. Transfer of property means an act, and every act implies consequences.
o Transfer of property is an act that involves, as its consequence, the conveyance of rights or some of
the rights in the property from one person to another.
2. The consequences of the act may take effect in the present or future, e.g., title to the property may be
conveyed immediately or postponed to a future date.
o Thus, if A transfers property to B for life and then to C, the transfer to B is in the present and to C in
the future.
3. Although the transfer of property may be in the present or future, yet the property must be in
existence at the date of the transfer.
o There can be no transfer of future property. The words "in present or in future" in the section govern
the word "conveys" and not the word "property".
4. The conveyance of the property must be from one living person to another living person.
o When it is said that both persons must be living, it is implied that transfers by will do not come
within the scope of the section, as such transfers come into effect after the death of the person
executing a will.
o However, it may be noted that although transfers by will are excluded, yet an interest may be created
in favour of an unborn person (See Secs. 13, 14, 16, and 22).
5. The words "living person" include corporations and other associations of persons.
o The amendment to the section makes it clear that a transfer can be made by a person to himself, as,
for instance, by a person making a settlement or trust in which he constitutes himself as a trustee.

WHAT IS A TRANSFER AND WHAT IS NOT

 Partition: Partition is not a transfer of property because nothing new is created on partition. His specific
share, which vested in him, is simply separated. A charge on the property is also not a transfer of property
within the meaning of this section because the only right created is a right to payment out of the property
subjected to the charge.
 Relinquishment: A relinquishment by a reversioner of his reversionary interest does not amount to a
transfer. A relinquishment connotes the extinction of a right, and, therefore, there is nothing left to transfer.
 Easement: Similarly, the creation of an easement is not a transfer of property. So too, a dedication of
property to a temple is not a transfer within the meaning of this section.
 Surrender: A surrender is not a transfer of property. In a surrender, the lesser interest falls into the greater
interest, and thus, nothing new is created in this deed. A release can be usefully employed as a form of
conveyance by a person having some right or interest, to another having a corresponding interest.

ESSENTIALS OF A VALID TRANSFER

 Transfer must be between two living persons
 The property must be transferable. [Sec. 6].
 The transferor must be competent to transfer. [Sec. 7.]
 The transferee must be competent to be a transferee. [Sec. 6(h)].
 The transfer should be made for a lawful or valid consideration or object. [Sec. 6(h)].
  The transfer must be made in the manner and form required by the Act. [Sec. 9]

A) Transfer must be between two living persons

One of the main features of the TP Act is that it governs transfers only between living persons or the transfers have
to take place intervivos, I.e both the transferor and the transferee must be living at the date of the transfer.
And the property has to be conveyed from one living person to another, so here conveying of the property involves
the creation of new title or interests in favor of the transferee and if the new title or interest is not created in favor of
the transferee then the property is not conveyed and is not regarded as a transfer of property.

B) The property must be transferable. [Sec. 6].

The general rule is that "property of any kind may be transferred." However, there are exceptions to this rule, as
outlined in clauses (a) to (i) of the section. These exceptions specify types of property that cannot be transferred.
Some of these exceptions align with Section 60 of the Civil Procedure Code, which lists properties that cannot be
attached during the execution of a decree. However, there are differences between the exceptions in this section and
those in Section 60. For instance, certain items like tools of artisans and essential cooking vessels can be transferred
but cannot be attached under Section 60.

Additionally, other laws impose further restrictions on property transfers, such as limitations under Hindu law on
the transfer of coparcenary property. The section acknowledges these additional restrictions by stating that property
can be transferred "except as otherwise provided by this Act or any other law for the time being in force."

(a) Clause-Spes successionis:

Non-Transferable Items:

1. Chance of an Heir Succeeding: The mere possibility that an heir will inherit an estate.
2. Chance of Receiving a Legacy: The possibility that a relative might receive a gift through a will after
someone's death.
3. Other Similar Possibilities: Any other chance-based expectations of acquiring property.

Explanation:

 Heir's Chance: A potential heir’s chance of inheriting property cannot be transferred. This rule is designed
to prevent speculative purchases of such chances, which could lead to an increase in unnecessary legal
disputes.
 Hindu Law Context: Under old Hindu law, the right of a reversionary heir (one who might inherit after a
life estate ends) was considered a "Spes Successionis." This means they had no present right or interest in
the property until the life estate ended.
 Case Reference - Amrit Narayan v. Gaya Singh: The Privy Council highlighted that a Hindu reversionary
heir has no current rights in the property held by a female owner until her death. His right to the property
only materializes after her demise.

Legal Prohibition:
  Section 6(a): Prohibits the transfer of a mere chance to acquire property in the future. For example, if two
widows inherit property and one has the chance to inherit the entire estate after the other's death, this chance
cannot be transferred. However, the widow can transfer her current interest in the property.

Contingent Interest vs. Spes Successionis:

 Contingent Interest: Unlike Spes Successionis, a contingent interest is a well-defined form of property. It is
more than just a possibility; it is based on an incomplete but present title.
 Example: If a property is settled to a wife for life and then to a son if he has one, and in default to another
person, that other person's interest is contingent and can be transferred.

Additional Points:

 Chance of Legacy: The chance of receiving a legacy is considered even more uncertain than inheritance and
cannot be transferred.
 Other Similar Possibilities: The term "any other possibility of a like nature" includes things like lottery
winnings, which are also non-transferable.

Conflict in Case Law: Different courts have varied opinions on whether rights like receiving future offerings can
be transferred. Some courts consider it a mere possibility, while others see it as a transferrable right.

Illustrations:

1. Example 1: If a Hindu dies leaving behind a widow and a brother, the brother only has a chance of
succeeding to the estate, which cannot be transferred.
2. Example 2: A man expects to inherit a house from his childless aunt. If he tries to transfer this expectation,
the transfer is invalid because it’s only a chance.

In case of Samir Kumar v. Nirmal Banerjee, when the transfer pertains to the actual property itself rather than the
anticipation of inheriting as an heir apparent, it cannot be characterised as a transfer based solely on a speculative
chance of succession.

(Clause b)- Right of Re entry

 Definition: The right of re-entry allows a person (usually a lessor) to take back possession of land that was
leased out if certain conditions (like non-payment of rent or breach of lease terms) are not met.

Transferability:

 Non-Transferable: The right of re-entry cannot be transferred on its own without the land. It must be
transferred along with the entire interest in the property (like ownership).

Important Note:

 Breach of Condition: If the right of re-entry is based on a condition that was breached (like building on the
land when it was prohibited), this right alone cannot be transferred to someone else.
 At Lease Expiry: The lessor can transfer the right to re-enter the property at the end of the lease period,
along with their other rights, but not just the re-entry right alone.
Illustration: If A leases a plot of land to B with a condition that A can take back the land if B builds on it, A cannot
transfer just this right of re-entry to C. However, if A transfers the entire ownership of the land (including the right
of re-entry) to C, the transfer is valid.

(Clause c)-Easement

 Definition: An easement is a legal right to use or restrict the use of someone else's land in a specific way.
Common examples include the right to pass through someone’s property (right of way), the right to light,
and the right to water.

Key Points:

 Two Properties Involved:

o Dominant Heritage: The property that benefits from the easement.
o Servient Heritage: The property that bears the burden of the easement.
 Non-Transferable: An easement cannot be transferred on its own. It must be connected to the property
(dominant heritage) that benefits from it. Therefore, an easement cannot exist separately from the land it
benefits.

Example: If you own a piece of land (dominant heritage) that has a right of way over your neighbor's land (servient
heritage), you cannot sell or transfer just the right of way. It must be transferred along with the ownership of your
land.

(Clause d)-Restricted Interests

 Non-Transferable Interests: A person cannot transfer an interest that is meant for their personal use only.
Transferring such an interest would defeat the purpose of the restriction.

 Examples of Non-Transferable Interests:

 Religious Offices: Positions like a mutawalli of a wakf or a mohunt of a mutt.

 Priestly Emoluments: Payments attached to religious duties, unless the right to receive offerings is separate
from the duty to perform the service.
 Right of Pre-emption: The first right to buy property before it is offered to others.
 Service Tenures: Jobs or positions tied to the service of a particular person or property.

 Case Example: Ramgopal v. Satyanarayan: The court ruled that transferring a decree that grants the right to
enjoy property is valid if the entire decree is transferred. The right to occupy and possess property under a decree is
not considered an interest restricted to personal enjoyment.

 Gifting Property:

 Gift Transfer: A person can gift the ownership of a property while reserving the right to possess and enjoy
it during their lifetime. There is no legal rule that ownership must include possession or enjoyment.
  High Court Ruling: A gift deed remains effective even if the donor reserves the right to enjoy the property
during their lifetime. The court erred in declaring such a gift deed invalid.

(Clause dd)-Maintenance

A right to future maintenance is meant only for the personal benefit of the individual it is granted to and cannot be
transferred. Before the 1929 amendment, there was debate about whether future maintenance could be transferred:
Madras courts said it could, while Calcutta courts said it could not. The 1929 amendment clarified that future
maintenance cannot be transferred, but maintenance arrears that are already due can be assigned.

(Clause e)- Mere Right to Sue

A mere right to sue, such as for damages from a breach of contract or tort, cannot be transferred. This rule prevents
speculation in legal claims and recognizes that such rights are personal to the aggrieved party.

Illustrations:

1. Libel Claim: A, who was libeled by B, tries to transfer his right to sue B for damages to C. This transfer is
invalid.
2. Contract Breach: A fails to take delivery of goods from B, who suffers a loss and tries to transfer the right to
recover damages to C. This transfer is invalid.
3. Mesne Profits: A, who is owed mesne profits from B, transfers this right to C. This transfer is invalid.

Key Points:

 Distinction: A mere right to sue is not transferable, but a definite debt or an actionable claim (like a loan) is
transferable.
 Example of Transferable Claim: A transfers a debt of Rs. 1,000 to C. This transfer is valid.
 If a property is transferred along with the right to recover damages related to that property, the transfer is
valid. For example, if A sells land to B and also transfers the right to sue for profits, the transfer is valid.

(Clause f)- Public Office

A public office cannot be transferred due to public policy concerns. This rule ensures that positions held for
personal qualifications and public service are not alienated.

Key Points:

 Public Policy: Public offices are reserved for individuals based on personal qualifications and are meant to
serve the public interest.
 Salary Transfer: While the salary of a public officer is not transferable, it can be attached under certain
limits, as per Section 60 of the Civil Procedure Code (C.P.C.).
 Example: The law ensures that the fees and salaries associated with public offices cannot be transferred or
bargained away.
 Non-Public Offices: Positions that are not public can be transferred, even if their duties benefit the public
indirectly.
 (Clause g)- Pension
Pensions, including military, civil, and political pensions, cannot be transferred.
Key Points:
 Definition: A pension is a regular payment given for past services or as compensation (e.g., to dethroned
princes), not for holding an office.
 Non-Transferable: Pensions cannot be transferred to others.
 Legal Protection: Section 60 of the Civil Procedure Code also protects pensions from being attached in debt
recovery actions.

(Clause h)-Nature of Interest

This clause prohibits transfers in the following situations:
1. Transfer Opposed to Nature of Interest:
o Definition: If the nature of the property does not allow it to be transferred, the transfer is invalid.
Examples include:
 Air, water, light (inherently non-transferable).
 Property dedicated to religious or charitable uses ("res extra commercium").
2. Transfer for Unlawful Object or Consideration:
o Illegal Transfers: Transfers made with unlawful objectives or considerations are invalid. Unlawful
considerations include:
 Forbidden by law (e.g., licenses under Excise Law).
 Defeats legal provisions (e.g., higher rent than permitted by law).
 Fraudulent (e.g., gifts to evade creditors).
 Implies harm to others (e.g., money for committing a crime).
 Immoral or against public policy (e.g., lease for gambling).
o Case Law: An assignment for past cohabitation is valid if it is not the consideration but the motive
behind the transfer.
3. Transfer to Disqualified Persons:
o Disqualified Persons: Transfers cannot be made to individuals legally disqualified to receive them.
Examples include:
 Judges, legal practitioners, and court officers are disqualified from purchasing actionable
claims.
o Minors: Minors are not disqualified from being transferees, though their contracts are void. They
can purchase or mortgage property.
Illustrations:
 A transfer of air or water is invalid.
 A property lease for use as a gambling den is void.

(Clause i)- Untransferable Interests

 General Rule: Leaseholds are generally transferable.

 Exceptions: Certain interests are not transferable:

 o Untransferable Right of Occupancy: A tenant with this right cannot assign or transfer their
interest.
o Farmer’s Interest: A farmer who defaults on revenue payments cannot transfer their holding.
o Lessee under Court Management: A lessee of an estate managed by a Court of Wards cannot
transfer their interest.

 Title Transfer: A seller cannot transfer a better title than they have.

 Family Arrangement: A family settlement executed with the agreement of all parties is valid and binding, even
if disputes arise or the arrangement involves bona fide disputes or claims.

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An absolute restraint on alienation is void but partial restraint is valid. Discuss/ Provisions
relating to conditions restraining the alienation of property
Alienation means transferring of property. This transfer of property can be through gifts, sales and mortgages. Under
Hindu Law, no person of the Joint Hindu family, not even the Karta, has the full power to alienate the joint family
property or his own interest in the joint family property without the consent of all coparceners. In the case of
separate property, a Hindu can alienate that property. This power is absolute.
A condition or limitation that absolutely restrains the transferee or anyone claiming under them from transferring or
disposing of their interest in property is void. This means that if a property is transferred with a condition that the
transferee cannot sell it, that condition is not valid.
Rule against Inalienability (S.10): The main principle of the TP Act is that the right to transfer property is
incidental to and inseparable from its beneficial ownership. Any condition absolutely restraining alienation is void
according to the Act. S.10 states that when a property is transferred subject to a condition absolutely restraining the
transferee (or any claimant through him) from parting with or disposing of his interest in the property, the condition
or limitation is void. This applies to sale, gift, exchange etc. It includes other transfers not covered by the TP Act
e.g. will, partition, settlement etc.
The principle underlying the section is that a right of transfer is incidental to, and inseparable from, the ownership
of the property. The rule that a condition of absolute restraint is void, is founded also on the principle of public
policy allowing free circulation and disposition of property.
The transfer, from the transferor to the transferee would remain valid. For e.g., A transfers some property to B as a
gift but with the condition that while A is alive, B must not transfer the property to any other person. This condition
will be held void as it absolutely restrains B from transferring his interest in the property to another.
This is commonly known as the ‘rule against alienability’. The Transfer of Property Act is based on the principle
that there can be a free transfer of property and has been specifically made with regard to free transfer. If conditions
restraining transfer are imposed, then the free transfer would be restricted and there would be no use for the Transfer
of Property Act.
However, only conditions mandating ‘absolute restriction’ are void. There are conditions which call for partial
restraint to be observed with regard to the transfer of property. If we are to determine whether a condition is
absolute or partial, then one must look at the substance of the condition, and not merely the words. Therefore,
restraints can be classified into two categories.

Types of restraints

Absolute Restraints

 An absolute restraint is such a restraint which completely takes away the right of the transferee to alienate
or dispose of the property. The transferee can now no longer transfer his interest in the property to
another person and he has no freedom to do what he wants with the property in his capacity as the owner
of the property.
 Section 10 stipulates that any condition imposed on the transferee which would amount to an absolute
restraint on the right of the transferee to dispose of his interest in the property shall be void. The property
must be transferred to the transferee subject to the condition.
 In Rosher v. Rosher (1884) 26 Ch D 801, A made a gift of a house to B, and gave a condition that if B
decides to sell the house during the lifetime of A’s wife, she should have the option of purchasing it for
Rs 10000, while the market value of the house was set at Rs 10,00,000. This condition was held to be an
absolute restraint and was declared void.
 In Kannamal v. Rajeshwari, AIR 2004 NOC 8 (Mad), a life estate was to be created in favour of ‘M’,
but the transferor gave an absolute restriction along with the property transfer to M, whilst divesting
himself of all his interests in the property. This restraint was held to be void as there was an absolute
transfer.
 In Mohd Raza v. Abbas BandiBibi,(1932) 59 IA 236, a condition imposing restriction for a particular
time or transfer to a specific person has been held to be void.

Partial Restraints

 A partial restraint is a condition which partially takes away the right of the transferee to dispose of his
interest in the property. Here, the right is not taken away substantially. Section 10 does not explicitly talk
about partial restraints. A condition imposing partial restriction is valid.
 In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there was a dispute regarding succession
between nephew and widow. A compromise was formed that the widow had possession of the property
while the title for the same was given to the nephew with the condition that he was restricted from
alienating the property during the widow’s lifetime. It was held that the compromise and the condition
were valid and prudent in the present case.
 Exceptions to the restraints

1. Lease

In leases, conditions that restrict subletting or assignment for the benefit of the lessor are valid.

A lease is a transfer of property wherein the lessee only has the right of enjoyment of the property, while the
ownership right is still with the lessor. Conditions imposing restrictions are valid in the case of a lease, where the
condition is for the benefit of the lessor or those claiming under him. In Raja JagatRanvir v. Bagriden, AIR 1973
All 1, a condition in the lease that the lessee shall not sublet or assign was held to be valid.

2. Married Woman

A condition that restricts a married woman’s ability to transfer property is valid if the woman is not a Hindu,
Muslim, or Buddhist.

When the property is to be transferred to a married woman, who is not a Hindu, Mohammedan or Buddhist, then the
condition restricting alienation can be valid.

S/11- Repugnant conditions

 Section 11 of the Transfer of Property Act contains conditions which are inconsistent with the nature of the
interest transferred are repugnant conditions. These conditions come with the transfer when the transfer
confers to the transferee, absolute interests in the property. Any condition with a transfer of absolute
interests in the property will be void.

 When a property is transferred absolutely, it must be transferred along with all its legal incidents.
In Manjusha Devi v. Sunil Chandra, AIR 1972 Cal 310, the parties entered into a sale for a piece of land.
In the sale deed, it was mentioned that the buyer could only use the land for setting up a factory for jute
textile manufacturing. It was held that this condition was invalid as the absolute interests in the land had
been transferred to the buyer and he could use it as he pleased.

An exception to Section 11

If the transferor has another piece of immovable property, he may, for the benefit of that property, impose
conditions of restrictions on the transferee’s right of enjoyment. For example, A has two properties: X and Y. A
sells them to B with the condition that a portion of X, adjoined to Y, shall be kept open for the benefit of Y. This
condition will be valid.

Positive and negative conditions

 Positive conditions: These are those conditions imposed on the transfer where the transferor imposes a
condition on the transferee to do some act. For example, A transfers land to B, on the condition that he shall
maintain and keep filling up the well on that plot of land. This condition is positive.
  Negative conditions: These are those conditions imposed on the transfer when the transferor imposes a
condition on the transferee to not do some act. For example, A transfers land to B, on the condition that he
shall leave open a four feet wide space on the land, and would not build anything on it.

Difference between Section 10 and Section 11

 Section 10 specifies that in a transfer with condition that absolutely restrains the alienation of the property
by the transferee, the condition will be deemed to be void.

 Section 11 specifies that in a transfer where absolute rights in the property have also been alienated to the
transferee, and where a condition is imposed that the transferee cannot, in spite of having the absolute right
in the property, do an act for his enjoyment of the property, such condition will be deemed to be void.

 Thus, the differences in these sections are that in Section 10 the condition is deemed void due to absolute
restrainment and in Section 11, the condition is deemed void due to the transfer being of absolute nature.

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TRANSFER TO UNBORN

Section 5 of the Transfer of Property Act, 1882 defines the phrase “transfer of property”. The section provides that
“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. Further provision to the section mentions that “living person” includes a company or
association or body of individuals, whether incorporated or not.

General Rule: When transferring property, an interest created for the benefit of an unborn person (i.e., someone not
in existence at the time of the transfer) is only valid if it extends to the entire remaining interest of the transferor in
the property.

Illustration: A transfers property to B in trust for A and A's intended wife for their lives, then to the eldest son of
the intended marriage for life, and after his death to A's second son. The interest for the eldest son does not take
effect because it does not cover the entire remaining interest of A.

Thus, bare reading of the above-mentioned section helps us understand that the conveyance of the property must be
from one living person to another living person. When it is said that both the individual must be living, it is implied
that transfer by will does not come within the scope of section 5 as such transfers come into effect only after the
death of the person who is executing the will.

However an exception to this section is section 13 which facilitates the transfer of immovable property in favour of
an unborn person. The provisions of Transfer of Property Act, 1882 in general do not allow the transfer of property
directly to an unborn person. A person who does not have any current existence but has a specific reference to one
and who may be born in the future is considered to be an unborn child or person. Even though a child in mother’s
womb is simply not a person in existence, but has been treated as a person under both Hindu Law and
English Law.

Therefore, it should be noted that the term ‘unborn’, refers not only to those, who might have been perceived but not
yet born, that is a child in womb, but also includes those who are not even perceived. Whether they will be born at
all or

Section 13. Transfer for benefit of unborn person.—Where, on a transfer of property, an interest therein is
created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by
the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the
whole of the remaining interest of the transferor in the property.

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

Thus, in order to transfer a property for the benefit of an unborn person on the date of the transfer, it is imperative
that the property must first be transferred by the mechanism of trusts in favour of some person living other than the
unborn person. In simpler terms, it can be said that the immovable property must vest in some living person
between the date of the transfer and the coming into existence of the unborn person as the property cannot be
transferred directly in favour of an unborn person.

In other words it can be said that the interest of the unborn person must in all cases be preceded by a prior interest.
The unborn person shall get the whole interest and not just partial interest from the person who had the prior
interest. The underlying principle in section 13 is that a person disposing of property (prior interest holder) to
another person shall not cause obstruction in the free disposition of that property in the hands of more than one
generation.

Section 13 rules:

 if the people who are supposed to get the property are already alive when you give it, you can give it to them
one after the other. It means one person can have it for some time, and then another person can have it later,
and so on. There's no limit to how many people can have it one after the other if they are alive. A.
 But, if you want to give property to people who haven't been born yet (unborn people), you have to give
them the whole property, not just a part of it. So, you can't say, "I'll give some of it to this baby and some of
it to that baby when they are born." You have to give all of it to them when they are born

ESSENTIALS
  No Direct Transfer: Transfers cannot be made directly to an unborn person. Instead, such interests must be
created using trusts. Direct transfers to unborn persons would lead to an "abeyance of ownership," which is
void under English common law.
 Prior Interest Required: If a trust is not established, the property must vest in someone who is living at the
time of the transfer before it can benefit the unborn person.
 Absolute Interest Required: The interest created for an unborn person must be an absolute interest, not a
life interest. An example from the section illustrates that a life interest for an unborn son fails because it does
not extend to the whole remaining interest of the transferor. The entire property must be transferred to the
unborn person. The transfer to an unborn person must be absolute and there should be no further transfer
from him to any other person.An interest which remains only for the lifetime cannot be conferred on an
unborn person. Under the English law, an unborn person can be conferred an estate only for his lifetime.
This concept of English law, however, is subject to a restriction known as the rule of double possibilities.
This rule was recognised in the case of Whitby Mitchell. The rule states that life interest to an unborn person
should not be transferred as doing so will give rise to existence of two possibilities. The first possibility will
be the birth of the unborn person to whom the life estate was to be transferred and the second possibility will
be the coming into existence of issues of that unborn persons. Thus, the transfer of property to an unborn
person can be permitted only if the absolute interest is transferred and not just the life estate.

Class or Series of Persons: When a gift is made to a class or series of persons, including some who are in existence
and some who are not, the gift is valid for those in existence at the time of the testator's death. The portion of the
gift for unborn persons is invalid, but it does not affect the validity of the gift for those already in existence.

When an Unborn Person Acquires Vested Interest: Unborn person may not be able to enjoy the possession of
property as soon as he is born but he may, however, acquire a vested interest in the property since his birth under
S.20. The section lays down that an interest created for the benefit of an unborn person vests in that unborn person
as soon as he is born. For example, if “A” transfers an estate to trustees for the benefit of A’s unborn son with a
direction to accumulate the income of such estate for a period of ten years from the date of the birth of A’s son and
then to hand over the funds to him. A’s unborn son acquires a vested interest upon his birth, although he is not
entitled to take and enjoy the income of the property for a period of ten years.

In the famous case of Girjesh Dutt v. Datadin, the Apex Court made important observations. Facts of the case
enumerate that “A” made a gift of her properties to “B”, who was her nephew’s daughter. The gift made by A was
made for the life of B and then to B’s daughter without power of alienation and if there was no heir of B, whether
male or female, then to A’s nephew. B died without having any children. Thus considering the facts of the case, the
court held that the gift in favour of unborn daughters was invalid under Section 13 as the gift was a limited interest
and also subject to the prior interest in favour of B.

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 Rule Against Perpetuity

To quote Sir D. Mulla, “It is illogical to imagine a dead person below the grave controlling properties above his
grave.” For this very reason, the state and the lawmakers felt the need for drafting the ‘Rule against perpetuity’.

Section 10, of transfer of property Act makes provision that a condition restraining the transferee’s power of
alienation is void. A disposition which tends to create future remote interest has been prohibited under section 14 of
the T.P act which incorporates the ‘Rule against Perpetuity’. However a better name for the may be the rule against
remoteness of vesting.

Meaning: Perpetuity means indefinite period. Rule against perpetuity is the rule which is against a transfer making
the property inalienable for an indefinite period or forever. Where a property is transferred in such a way that if
becomes non-transferable in future for an indefinite period, the property is tied up forever. This disposition would
be a transfer in perpetuity.

Object of Rule against Perpetuity: The object of the rule against perpetuity is to ensure free and active circulation
of property both for purpose of trade and commerce as well as for the betterment of property itself. Frequent
distribution of property is in the interest of the society and also necessary for its more beneficial enjoyment. A
transfer which renders property inalienable for an indefinite period of time is detrimental to the interest of its owners
who are unable to dispose it of even in urgent need or for any higher value. It is also loss to the society because
when property is tied up from one generation to another in one family, the society as such would be deprived of any
benefit out of it. Free and frequent disposal ensures wholesome circulation of property in society. Ruleagainst
perpetuity is also based on broad principles of public policy.

Perpetuity may arise under two circumstances: –

 Transferor of property is deprived of the power of alienation.

 Remote interest is created in the property but without the right of alienation to the transferee.

Sec 14: Rule against perpetuity.—No transfer of property can operate to create an interest which is to take effect
after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who
shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to
belong.

Maximum remoteness of vesting: Under section 14 the maximum permissible remoteness of vesting is the life the
last preceding interest plus minority of the ultimate beneficiary. Accordingly, property may be transferred to A for
life and then to B for life and then to UB (Ultimate Beneficiary) when he attains the age of majority. A and B holds
property for their lives one after the other after the death of B although it should vest in the UB immediately but,
under this section the property may be allowed to vest in the UB when he attains the age of majority.

Ultimate beneficiary in mother’s womb: Where the ultimate beneficiary is in the mother’s womb i.e. it is a ‘child en
venture sa mere’, which means the child in the mother’s womb the latest period up to which vesting may be
postponed, is the minority plus the period during which the child remains in mother’s womb. It may be noted that
minority is counted form the date of worldly birth whereas for purposes of being a transferee, a child in mother’s
womb is a competent person.

Maximum permissible remoteness of vesting=life of the preceding interest + period of gestation of ultimate
beneficiary+minority of the ultimate beneficiary.

Thus, the maximum limit fixed for postponing the vesting of interest is the life or lives in existence at the date of
transfer plus the minority o ultimate beneficiary with the addition of the period of gestation provided gestation
actually exists i.e. the ultimate beneficiary is actually in mother’s womb at the death of the last person.

ESSENTIALS

1. There is transfer of property

2. The transfer is for the ultimate benefit of an unborn person who is given absolute interest
3. The vesting of interest in favour of ultimate beneficiary is preceded by life or limited interest of
living person or persons.
4. The ultimate beneficiary must come into existence before the death of the last preceding living
person.
5. Vesting of interest in favour of ultimate beneficiary may be postponed only up to the life or lives of
living persons plus minority o ultimate beneficiary; but not beyond that.

Contingent Interest: Under section 14, vesting of interest in favour of the ultimate beneficiary may be postponed
up to his minority. In other words, the property does not vest in him until he attains the age of majority. What then is
the nature of his interest during his minority? Between the period when last person dies and the majority of the
ultimate beneficiary, the ultimate beneficiary has a contingent interest which becomes vested upon his attaining
majority. Where the UB is already born at the death of the last person but does not survive to attain majority e.g.,
dies at the age of fifteen years, the interest does not vest in him and therefore it reverts back to the transferor or his
legal heirs if the transferor is dead by that time.

EXCEPTIONS TO RULE OF PERP

(a)Transfer for the benefit of public:- Where the property is transferred for the benefit of public in the
advancement of religion, knowledge, commerce, health safety or any other object beneficial to mankind, the transfer
is not void under the rule against perpetuity.

(b)Personal agreement:- Personal agreements which do not create any interest in property are exempted from the
rule against perpetuity. Rule against perpetuity is applicable only to a transfer of property. If there is no transfer of
property i.e. no transfer of interest, the rule cannot be applied. Contracts are personal agreements even though the
contracts relate to rights and obligations in some property. E.g. it cannot apply to a covenant of pre-emption.
Similarly, where the shebaits of a temple, under personal agreement, appointed Pujari out of particularly family to
perform religious services in the temple, the agreement was valid because the court held that being personal
agreement, it was not hit by rule against perpetuity.

CASE LAWS

Ram Baran Prasad v Ram Mohit Hazra: A contract is enforceable by and against transferees of the original
parties, and the rule against perpetuity applies only to contracts creating property rights, not to agreements of pre-
emption without a time limit.

Anand Rao Vinayak Vs Administrator general of Bombay: when the gift was made of movable property in favor
of son with gift of shares in the property to son’s sons son when the attained the age of 21 ,is void.

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Section 17- Direction for accumulation.—

(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated
either wholly or in part during a period longer than—

 the life of the transferor, or

 a period of eighteen years from the date of the transfer, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which the accumulation
is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned
period the property and the income thereof shall be disposed of as if the period during which
the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of—

o the payment of the debts of the transferor or any other person taking any interest under the transfer,
or
 o the provision of portions for children or remoter issue of the transferor or of any other person taking
any interest under the transfer, or
o the preservation or maintenance of the property transferred; and such direction may be made
accordingly.

Eg: A transfers his property in favour of B for life with the condition/direction that the income of the said properties
shall be accumulated during A’s life and shall be given to C is a valid direction of accumulation.

EXPLANATION-S/17

This provision deals with restrictions on the accumulation of income from a property transfer, focusing on the time
period during which income can be accumulated before it must be distributed or used. Here's a breakdown:

The direction of accumulation of income is a kind of condition which is contrary to the interest created or limiting
the right to enjoyment in favour of the transferee to whom the property is transferred absolutely.

Subsection (1): General Rule on Accumulation Period

 Accumulation Time Limit: If the terms of a property transfer state that the income from the property
should be accumulated (saved rather than distributed) for a period longer than:
1. The life of the transferor (the person who is transferring the property), or
2. 18 years from the date of the transfer,

then such a direction to accumulate income is void for any period exceeding the longer of these two time
frames.

 Effect of Exceeding the Limit: If the accumulation period exceeds the allowed limit, then once that period
(the longer of the transferor's life or 18 years) ends, the property and the accumulated income must be dealt
with as if the excess period never existed. Essentially, at the end of the valid accumulation period, the
property and income should be distributed or used as originally directed.

Subsection (2): Exceptions to the General Rule

Certain purposes allow for longer accumulation periods, meaning the restrictions in Subsection (1) do not apply:

1. Payment of Debts: If the accumulation is meant to pay off debts of the transferor or anyone with an interest
in the transfer, the period can exceed the usual limit.
2. Provision for Children/Descendants: If the accumulation is for providing portions (inheritance or financial
support) for the transferor's children or more distant descendants (like grandchildren), the accumulation can
continue beyond the usual limit.
3. Preservation or Maintenance of Property: If the accumulation is directed towards preserving or
maintaining the property itself, the direction to accumulate can also exceed the usual time restrictions.
In summary, the law limits how long income from transferred property can be accumulated to prevent indefinite
withholding of property benefits, but it allows exceptions for specific, important purposes like debt payment or
maintenance of the property.

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VESTED AND CONTINGENT INTEREST

Transfer of Property Act deals with vested and contingent interest. Vested Interest is created where there is a
condition of the happening of a specified certain event. While Contingent Interest is created on fulfilling a
condition of happening of a specified uncertain event.

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

The person having the vested interest does not obtain the possession of that property but expects to receive it upon
happening of a specified certain event.

Example- A promises to transfer his property to B on him attaining the age of 21. B will have vested interest in
A’s property till the time he does not become 21 years old and gets the possession of it.
After death, the person (promise) who is having this interest will not have any right over that property and the
interest will vest in his legal heirs.
In the above example, if B dies at the age of 20, then the interest vested in B will pass on to the legal successors of
B and they will get the charge over the property in the mentioned time period.

Explanation: An intention that an interest shall not be vested is not to be inferred merely from: A provision whereby
the enjoyment thereof is postponed. A prior interest in the same property given or reserved to some other person. A
provision that income arising from the property is directed to be accumulated until the time of enjoyment arrives. A
provision that if a particular event happens, the interest shall pass to another person.

 Postponed Enjoyment: Just because you can't immediately enjoy or use the interest doesn’t mean it’s not
vested. For example, if you inherit a house but can’t live in it until a certain date, your interest in the house is
still vested.
 Prior Interest to Someone Else: If someone else has the right to use the property before you (like a parent
living in a house before it passes to you), your interest is still vested.
 Accumulating Income: If the money or income generated by the property is being saved up for you until a
certain time, this doesn’t mean your interest isn’t vested. Your right to that income is secure, just delayed.
  Passing to Another Person if an Event Happens: Even if there’s a condition that could cause the interest
to go to someone else if a specific event occurs (like a gift going to another person if you don’t meet a
certain condition), this doesn’t automatically mean your interest isn’t vested.

Cases:

In the case of Lachman v. Baldeo, a person transferred a deed of gift in favour of another person but directed him
that he will get the possession of that property only when the transferor himself dies. The transferee will have a
vested interest even though his right of enjoyment is postponed till the death event.

Rajes Kanta Roy v. Smt. Shanti Debi: The Supreme Court held that the interest taken by two brothers under a trust
deed was vested and not contingent, despite the trust's obligations, which postponed the enjoyment of income for
the benefit of the donees.

Characteristics of Vested Interest

1. Vested interest creates a current right that comes in effect immediately, although the enjoyment is
postponed to the time prescribed in the transfer. It does not entirely dependent on the condition as the
condition involves a certain event.
2. Vested interest is a Transferable and heritable right.
3. Death of transferee will not make the transfer invalid as the interest will pass on to his legal heirs.

Section 20 of the Transfer of Property Act, 1882 talks about vested interest to an unborn child. The interest in the
property will be vested in him once he is born. The unborn child might not get the right of enjoyment of the
property immediately after having vested interest.

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CONTINGENT INTEREST

21. Contingent interest.—Where, on a transfer of property, an interest therein is created in favour of a person to
take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen,
such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the
former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.

Exception.—Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a
particular age, and the transferor also gives to him absolutely the income to arise from such interest before he
reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such
interest is not contingent.
It is an interest which is created in favour of a person on fulfilling a condition of happening of a specified uncertain
event. The person having the contingent interest does not get the possession of the property but receives it upon
happening of that event but will not receive the property if the event does not happen. Contingent interest is entirely
dependent on the condition imposed on the transfer.

Example- A agrees to transfer the car ‘X’ to B on the condition that he shall secure 80 % in his exams. This
condition is uncertain on the happening of the event or not happening and therefore B here acquires a contingent
interest in the car ‘X’. He shall get the property only if he gets 80 % and when the condition is fulfilled.

 Transformation into Vested Interest: Such interest becomes a vested interest upon the happening of the event
or when the event becomes impossible.
 Exception: If a person is entitled to interest upon attaining a particular age, and the income from the interest is
given to them before reaching that age, the interest is not contingent.

Characteristics

 This interest only happens when the condition is fulfilled.

 Contingent interest is a transferable right, but the condition of heritability depends upon the nature of
such any transfer and the condition.
 Death of the transferee before getting the possession of the property will result in the failure of
continent interest and the property will remain with the transferor.

 Section 22: It covers transfers to a group where only those meeting a condition (like reaching a certain age)
will gain interest in the property.
 Section 23: It deals with transfers that depend on an uncertain event happening, outlining what occurs once
that event takes place.
 Section 24: It addresses transfers to a group on the condition they survive to a specific date, where only the
survivors gain interest, excluding legal heirs of the deceased.

DIFFERENCE BETWEEN VESTED AND CONTINGENT INTEREST

Title Perfection:

 Vested Interest: The title is already perfect, giving the owner absolute rights.
 Contingent Interest: The title is imperfect but can become perfect upon fulfilling a condition, meaning the
owner holds rights conditionally.

Effect and Conditions:

 Vested Interest: Takes effect from the date of transfer and depends on a condition that must happen.
 Contingent Interest: Depends on an event that may or may not happen to become vested.

Rights and Possession:

  Vested Interest: Confers a present right to property, not defeated by the transferee's death before obtaining
possession.
 Contingent Interest: No present fixed right; it may be defeated if the transferee dies before obtaining
possession.

Transferability:

 Both vested and contingent interests are transferable.

 However, with a contingent interest, the transferee only acquires an interest of a contingent nature, which
may be defeated if the condition precedent is not fulfilled.
 ------------

DOCTRINE OF NOTICE

The concept of Notice for the purpose of The Transfer of Property is given under Section 3 of Transfer of Property
Act, 1882 (TPA). Notice means to have knowledge of something i.e. to know something. In law, it means
knowledge of a fact. It is used to decide on conflicting claims of two parties. In law, the Notice or Knowledge of a
fact affects one’s legal rights and liabilities.

Under Section 3 of TPA Notice can be; “Actual or express Notice” or “Constructive Notice”, or it may be
imputed to the transferee when information of the fact has been obtained by his Agent.

1. Express or Actual Notice

Actual notice means when a person actually knows about the existence of a fact. The fact must be definite
information given in the course of negotiations by a person interested in the property. The information of fact
should not be a rumour or hearsay and thus is not bound by such information.

In other words, actual notice takes place when the information is such that it would operate upon the mind of a
rational man and would make him act based on the knowledge so acquired.

2. Constructive Notice

According to Section 3, a person is said to have notice of a fact, which he would have known, but for his “gross
negligence” or “willful abstention from making an enquiry or search” does not know. However, it is such
knowledge which a person with ordinary prudence ought to have known. In other words, constructive notice of facts
are those facts which a person ought to have known, but because of gross negligence or wilful abstention does not
know it.

Thus in Constructive notice, there is a legal presumption, that a person should have known a fact as if he actually
knows it.
Therefore Constructive notice is knowledge of those facts which a court imputes on a person. If the circumstances
indicate that a reasonably prudent person ought to have known a particular fact related to the transaction of transfer,
then he will be deemed to know it.

Illustration: A sells the house by a registered document to B. He later enters into a contract with C to sell him the
same house. Law imposes a duty upon C to inspect the registers at the Registrar’s office, and if he does that, he
would come to know about the sale in favour of B. A failure to inspect the register will be detrimental to the
interests of C, as he would be imputed with constructive notice of the registered transaction.

- Wilful abstention from enquiry or search

Wilful abstention can be understood from observations in Jones v. Smith (1841)

“cases in which the court is satisfied from the evidence before it that the party charged has designedly abstained
from the inquiry for the purpose of avoiding it”.

For wilful abstention, there has to be some starting point, some hint or suspicion which would require some
investigation to reveal the truth about a transaction. If in such cases the transferee fails to investigate, with a
fraudulent intention to not know the real truth, then the court will assume that the transferee had some idea of that
fact.

For instance, if a property is mortgaged to a bank by deposit the title deeds and the mortgagor later sells the property
to a lady without disclosing the fact of the mortgage, and she does not insist on inspecting the title deed, then it will
be presumed that the buyer willfully abstained from inquiring and will be imputed with constructive notice of the
mortgage.

- Gross Negligence:

Gross negligence occurs when someone is so careless that it shows a serious disregard for obvious risks. It's not just
simple carelessness; it's much more severe, like ignoring a clear danger. For example, if a person buying a property
fails to read an important note stating that the property is under a charge, the law assumes they should have known
about it. Constructive notice means that a person is expected to be aware of certain facts related to a transaction if
they took reasonable steps to investigate. If they don't, and it leads to harm or loss, they can be held responsible for
gross negligence. For instance, if a bank gives back title deeds that are the only security for a loan, and the owner
then uses them to get another loan from another bank, the first bank is grossly negligent for not keeping the deeds.
Whether someone is guilty of gross negligence and should have constructive notice depends on the specific details
of the situation, making it a question of fact, not law.

- Registration As Notice
Registration is considered as constructive notice when the document is compulsorily registrable. The amending act
of 1929 of TPA made it clear that registration of an instrument relating to immovable property amounts to notice of
the instrument from the date of registration.

Registration is a notice only in the following circumstances:

 When the instrument is required by law to be registered.

 Registration is notice to a subsequent transferee. Prior transferee is not affected by notice of subsequent
transactions from the registration of the same.
 The instrument must have been registered in the manner prescribed by the Registration Act, 1908.

- Possession As Notice

If someone possesses an immovable property, then the purchaser must know that someone is exercising right to
possession and enjoyment on that property. In other words, the person dealing with any immovable property shall
be deemed to have notice of the title of any person who, temporarily, is in actual possession thereof. Only actual
possession acts as notice.

Illustration: A sells his property to B and then A requested B to let him live in the property as long as A finds a
new place to live. Registration was not done. A sell the same property to C. As B’s possession is not actual so it is
not a constructive notice to C.

- Notice To Agent

The general principle is that a person has notice of fact when information of the fact is given to or obtained by his
agent. The knowledge of the agent is regarded as the knowledge of the principal. This general principle has certain
limitations.

Notice to agent is notice to principal in the following circumstances:

 The agent must have actual knowledge of a fact.

 The agent must have obtained the knowledge during tenure of agency.
 The agent must have been appointed for a particular transaction or business.
 The knowledge of fact must be material to that particular transaction or business.
 The agent must obtain the knowledge in a good faith as a reasonable prudent man.

Exceptions to this doctrine-

 If the agent fraudulently conceals knowledge of fact with wrongful intention, then his knowledge will not
amount to principal’s knowledge.
  If there is a third party who is involved with agent in the fraud and the third party knows that agent is
concealing the fact with wrongful intention, then agent’s knowledge will not amount to principal’s
knowledge.
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IMMOVABLE PROPERTY
Property is one of the fundamental elements of socio-economic life of an individual. The word property has gradually been
given a wider meaning. Property law is therefore an important branch of civil law. The Transfer of Property Act, 1882 deals
with the transfer of inter vivos means transfer by act of parties which takes place between two living persons for eg: The gift or
sale is a transfer of property by act of parties because both transferor and transferee both must be living persons on the date of
transfer. Transfer of property under will is not a transfer by act of the parties because will take effect after the death of the
transferor. Transfer of properties by operation of law are governed by personal laws like Hindu and Muslim law of wills and
inheritance or by order of the court under the civil procedure code. This Act is applicable to whole India except Punjab.

Meaning of Immovable Property.

Section 3 of the T.P Act defines the term Immovable property but the definition is neither clear nor complete. It simply says that
immovable property excludes standing timber, growing crops or grants. it is not clear as what it includes, so we have to depend
upon the General Clauses Act 1897.
According to Section 4 of the General Clauses Act, immovable property includes land, benefits to arise out of land and things
attached to the earth. Hence the definition of the immovable property which is defined in the General Clause Act is applicable to
the Transfer of Property.

In order to get clear and complete meaning of the immovable property it is necessary to consider the definitions given in section
3 of the Transfer of property and as well as definition given under the General Clause Act. On the basis of the definition given
in the both the Acts the expression immovable may be defined properly in the following words:

Immovable Property includes:

• Land,
• Benefits to arise out of land,
• things attached to the earth, i.e.,
i. Things embedded to the earth,
ii. Things attached to what is so embedded in the earth,
iii. Things rooted in the earth except: Standing timber , growing crops , growing grass.

 Land: land means surface of the earth. It includes everything upon the surface of the land, under the surface of land
and also above the surface of the land. Anything upon the land, so long as it is not removed from there, shall be part of
the land. For example: Soil, mud deposited on the surface of the earth would be immovable property. The water
collected in a pit or accumulated in the pond or lake is also immovable property because the water is part and parcel of
the surface of the earth. Water flowing in the river gives the impression that it is moveable but its water always
remains on the surface of the earth. Everything under the surface of land is also the part of the land and is included in
the expression immovable property eg., Sub-soil, minerals, coal or gold mines and the underground streams of water
are immovable properties because they flow under the land.

 Benefits to arise out of Land. Besides land, the benefit which a person gets from land, is also an immovable property.
One way get the benefit from the land under some right. Beneficial interest in a property is called beneficial right or
interest of that property, Thus any right which is exercised over the land or any other immovable property and by the
exercise of which a person gets certain profit or gain would be his intangible immovable property. For example land is
 used in wider sense it means and includes everything upon its surface and everything beneath the land. Therefore the
right of a tenant to live in the house of his landlord is an immovable property of the tenant, in the same way right of
fishery, right to catch fish in the pond or lake is an immovable property.

 Things attached to the earth. The things attached to the earth means
 Things embedded in the earth
 Thing attached what so embedded in the earth
 Thing rooted in the earth.

a) Things embedded in the earth: Things which are fixed firmly in the earth and became part of the land are
things embedded in the earth. For eg., houses, buildings , wall, electricity polls are immovable property because
they are things embedded in the earth. Walls and polls are not fixtures or not just placed on the surface of the land
but they are dug deep and thereafter the whole structure is fixed permanently. Where are things which placed on
the surface of the earth without any intention to make them part of the land the things may not be immovable
property. For eg., road roller or heavy stone which placed on the land may go two to three feet deep depending
upon the weight, therefore such things are not called as immovable property.

b) Things attached to what is so embedded in the earth-Where a thing is attached to something which is
embedded in the earth for its permanent beneficial enjoyment, the thing so attached would also become
immovable property. For eg., doors, windows and walls of permanent enjoyment of that house. The things which
are attached without any intention making then to be part of the house would not be immovable property eg.,
electric bulb, window screen etc.

c) Things which are rooted in the earth-Trees, plants or shrubs which are grown on land are rooted in the earth
with help of their roots, they keep themselves fixed in the earth and become the part of the land. Until it is cut
down, therefore a general rule in respect of all the trees, plants, herbs and shrubs is that they are immovable
properties, however there is an exception to this general rule:

A. Standing timber.
B. Growing crops.
C. Growing grass.

Standing timber is a moveable property provided its woods are generally used for timber purposes i.e.making for house hold
furnitures. And growing crops and growing grass are also movable property although the crops say wheat and barley are
nothing but collection of plants which are rooted in the earth but every crop and grass can be cut in future when it becomes
ripe. That the reason they will not be called as immovable property.

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DOCTRINE OF ACCELERATION

Section 27 of the Transfer of Property Act, 1882

Section 27 deals with situations where there are two transfers of property involved: a primary (or prior) transfer and
a secondary (or ulterior) transfer. It outlines how the secondary transfer is handled if the primary transfer fails.

Key Points of Section 27:

1. Conditional Transfers:
o A property transfer can be conditional, meaning the transfer is dependent on certain conditions being
met.
o When there is a transfer to one person (A) with a condition, and another transfer of the same property
is made to a different person (B) if the first transfer fails, Section 27 governs how this should be
managed.
2. Effect of Prior Failure:
o If the primary transfer fails for any reason, the secondary transfer will take effect.
o This occurs even if the failure of the primary transfer did not happen in the exact manner anticipated
by the person making the transfer (the transferor).
3. Condition for the Ulterior Transfer:
o If the intention was that the secondary transfer should only take effect if the primary transfer fails in
a specific manner, then the secondary transfer will only take effect if the primary transfer fails in that
exact manner.

Illustrations:

1. Example of Effective Transfer:

o Scenario: A transfers Rs. 500 to B on the condition that B executes a lease within 3 months of A’s
death. If B fails to do this, the amount should go to C. B dies during A's lifetime.
o Outcome: Since B cannot fulfill the condition (executing the lease) because he died before A, the
transfer to C takes effect. Here, the condition was not fulfilled, but it was not the failure method
considered by A.
2. Example of Uncertain Transfer:
o Scenario: A transfers property to his wife with the condition that if she dies before him, the property
will go to B. A and his wife die together, making it impossible to prove who died first.
o Outcome: The transfer to B does not take effect because it is unclear if the wife predeceased A,
which was a condition for B to receive the property.

Comments:

1. Validity of Prior Interest:

o If the primary interest is invalid, the secondary interest also fails. For instance, if the condition for the
primary transfer involves illegal acts or invalid conditions, the secondary transfer is also invalid.
2. Specific Conditions:
o If the transferor specifies that the secondary transfer only takes effect if the primary transfer fails in a
particular way, then the secondary transfer will only be valid if the primary transfer fails in that
specified manner.

Summary:

 Valid Condition: For Section 27 to apply, the primary transfer must be valid, but it fails because the
conditions are not met or the transferor's intention is not fulfilled.
 Unfulfilled Conditions: If the prior transfer fails for reasons not contemplated by the transferor, the
secondary transfer will generally take effect.
  Specific Intentions: If the transferor specified exact conditions for the secondary transfer to take effect, it
must fail under those conditions for the secondary transfer to be valid.

This section ensures that if a transfer fails, there is a clear mechanism for how the subsequent transfer will be
handled, considering both general and specific conditions set by the transferor.