004 - 1977 - Law of Property PDF

LAW OF PROPERTY
G. C. V. Subba Rao*
I INTRODUCTION
DURING THE year under survey there has been quite an abundant har-
vest of litigation concerning property rights resulting in doubt-dispelling
decisions at the highest level. Two decisions of the Supreme Court
have, for instance, clarified the scope of the doctrine of part perform-
ance.1 The criteria for distinguishing a lease from a mortgage have
been reiterated in Fuzhakkal v. Bhargavi.2 There had been a persistent
conflict of opinion between the Bombay and Madras High Courts as to
the effect of an agreement for sale of the hypotheca entered into by a
mortgagee clothed with a power of sale under section 69 of the Transfer
of Property Act. The Madras High Court was inclined to the view that
such a contract would extinguish the right of redemption while the
Bombay High Court permitted the right of redemption to the mortgagor
till the contract was followed up by an actual conveyance. This conflict
has been resolved by the Supreme Court in Narandas v. Kantamz over-
ruling the Madras view and approving the view of the Bombay High
Court.
Much of the case law during this year has centred around the relations
of landlord and tenant. The oft-recurring question has been the extent
to which the general provisions of the Transfer of Property Act are
excluded by local legislation, especially as regards the formality of
* Vice-Chairman, State Official Language (Legislative) Commission, Ministry of Law,

Government of Andhra Pradesh.
1
Ranchhoddas v. Devaji, A.I.R. 1977 S.C. 1517; Technicians Studio v. Lila> A.I.R. 1977
S.C. 2425.
'A.I.R. 1977 S.C. 105.
8
A.I.R. 1977 S.C. 774.
www.ili.ac.in The Indian Law Institute

76 Annual Survey of Indian Law [1977
notice to quit to be issued by the landlord under the general law as a pre-
liminary to an action for eviction under the local law. The seminal deci-
sions of the Supreme Court on this subject, such as Rattanlal v. Vardesh
Chander?Pawada Venkateswararao's case,5 Raval&Co. v. Ramachandran*
have laid down the broad proposition that the local law can supersede
the general provisions of the Transfer of Property Act when the local
law is a "self-contained code", but not otherwise. In the light of this
principle different High Courts have, during the year under survey,
reviewed the provisions of the local law for deciding whether the notice
under section 106 of the Transfer of Property Act can be dispensed
with. All these decisions have been fully explained, infra.1
The rights of a redeeming co-mortgagor were the subject matter of a

decision by the Supreme Court in Ganeshi Lai v. JotiPershad* In that
case the Supreme Court dealt with the legal position as it was prior to
the enforcement of the Transfer of Property Act. A Full Bench
decision of the Kerala High Court in Lakshmi Pillai v. Eswara Pillai9 has
expressed the view that there is no difference between the pre-Act law
and the post-Act law in regard to the rights of the redeeming co-
mortgagor. This conclusion seems to be of a debatable character since
the amending legislation of 1929 conferred on the co-mortgagor in those
circumstances a right of subrogation which he did not have prior to
that amendment. This is pointed out in the appropriate place, infra.1*
II GENERAL PRINCIPLES
Definitions
Immovable property [section 3] : The right to catch and carry away

fish is a "Profit a Prendre.'* Being a benefit arising out of land it is,
immovable property. A lease of fishing rights for two years reserving
a yearly rent should therefore be effected by a registered instrument."11
A lease of a right to collect usufruct from coconut trees is an
agricultural lease with respect to immovable property,12
4
A.I.R. 1976 S.C. 588.
6
A.I.R. 1976 S.C. 869.
6
A.I.R. 1974 S.C. 818.
7
See infra, part IV under sub-title, 'Notice to quit*-
8
A.LR. 1953 S.C. 1.
9
AJ.R. 1977 Ker. 148.
10
See part IV under sub-title, doctrine of subrogation*.
11
Bihar E.G.F. Cooperative Society v. Sipahi Singh, A.I.R. 1977 S.C. 2149.
12
Ranga Iyengar v. Pandaram, AJ.R. 1977 Mad. 364.

Vol. XIII] Law of Property 11
Attestation [section 3] : Sogra Khatum v. Bhagavan Dasiz is a peculiar
case in which a suit on a mortgage was decreed by the trial court, but
the decree was reversed in appeal where only a money decree was
granted as it was held that the mortgage was not valid for want of
proper attestation. In second appeal to the High Court it was con-
tended by the debtor (appellant) that the money-decree was improperly
passed as the suit, treated as a suit for money, was barred by limitation
being beyond three years from the date of the bond. The High Court
found that the finding of the lower court regarding invalidity of the
attestation was contrary to law as the lower court had proceeded on the
footing that attestation can only be valid when the attestor had actually
witnessed execution.
In these circumstances the High Court granted a mortgage decree

although the creditor, who was an ignorant villager, had not filed any
cross-appeal for restoration of the mortgage decree. This is as it should
be and it is indeed surprising that the lower appellate court should
have committed such an eggregious blunder in regard to the nature of
attestation. The definition is itself crystal clear that attestation may be
made on the basis of an acknowledgement of execution and there is no
need for the attestor to be an actual witness to the execution of the
document.
Transfer [section 5]
(/) Deed of release : A deed of release does not convey a title to one
who bad no pre-existing title, but a deed though called a deed of
release can, by using words of sufficient amplitude, transfer title to one
having no title before the transfer. In Harish Chandra v. Chandra Sekharu
the stridhan property of A, which was subject to a mortgage in favour
of X, devolved upon her daughter B. By a deed of release B purported
to confer her rights upon her brothers. It was held that the brothers
could maintain a suit for redemption in those circumstances as the
"release" was really a conveyance of B's rights to them.
(//) Will or transfer inter vivos : In Pannalal v. Dilip Kumar16 a

document was styled a deed of settlement. The suit was brought by
the executant for setting it aside on the ground that it was in favour of
his guardian and was executed by him without knowledge of its contents
shortly after his attainment of majority. The High Court found that
"A.I.R. 1977 Ori. 146.

14
A.I.R. 1977 All. 44; see aJso S.C. Banerjee v. Rani Banerjee, A.I.R. 1977 Cal. 509.
16
A.I.R. 1977 Cal. 297.

the document was really a will as the share given to the sons of the
defendant thereunder would be ascertained only on the death of the
executant. The filing of the suit was treated as revocation of the will.
Spes successionis
[Section 6] : Right of survivorship as between co-widows : A died

leaving his two widows B and C. B and C partitioned the property
each to enjoy exclusively as "full owner" the property allotted to her.
This means that each relinquished her right of survivorship in regard to
the property allotted to the other. Subsequently, B gave the property
which fell to her share by will to D. On the death of B, the suit was
brought by D against C claiming the property under B's will. It was
contended by £ that the property would be hers by heirship as sur-
viving widow of A and that this right of hers could not be relinquished
validly as the relinquishment would be hit by section 6 clause (a) of the
Transfer of Property Act. The Supreme Court rejected this contention
in Bindumati v. Narbada Prasad}* It was held :1Bo
S. 6 (a)... prohibits only the transfer of the bare chance

of the surviving widow taking the entire estate as the
next heir of her husband on the death of the co-widow, but it
does not prohibit the transfer by the widow of her present
interest in the properties inherited by her together with the
incidental right of survivorship.
Hence, while C is alive she cannot assert a claim to survivorship

having relinquished that right to B. It was also argued that B could
not dispose of her interest by will though she could have alienated her
right by a transfer inter vivos. This argument was also rejected. It
was made clear by Khanna J. that the power of testamentary disposition
is co-extensive with the power to transfer the property inter vivos. In
the result, the suit of D was decreed as against C.
Minor's right to set aside sale [section 6 e] : A minor's right to sue

setting aside a guardian's alienation is not a mere right to sue. In
Amirtha v. Sornam11 on the death of A the suit property devolved on her
daughter B. In 1959 B's father as guardian sold it to C on behalf of B
who was then a minor. In 1966 after attaining majority B sold the
same property to Sornam who brought the suit against C's alienee,
16
A.I.R. 1977 S.C. 394.'
l
«* Id. at 396.
17
A.I.R. 1977 Mad. 127 (F.B.).

Amirtha. It was contended on behalf of the defendant that though a
suit for setting aside the guardian's alienation could be brought by B it
could not be maintained by B's alienee. The Full Bench held that under
section 8 of the Hindu Minority and Guardianship Act, even a transferee
from the minor can sue as he is a "person claiming under the minor".
Since the minor's right to sue for setting aside the guardian's aliena-
tion is not a mere right to sue, the property can be attached by a decree-
holder of the minor even after such alienation. But this will not prevent
limitation running in favour of the alienee from the guardian.18
Transfer for unlawful object
[Section 6] : A transfers property to his mistress in respect of past

and future cohabitation. Subsequently, he sues to recover the property
from her. In Kamarbai v. Badrinarayan,19 Vaidya J., after a compre-
hensive survey of the case law on the subject in India and in England,
applied the maxim in pari delicto potior est conditio possidentis. Revers-
ing the decision of the lower court, he held that the plaintiff could not
recover, for the proper thing is for the court to tell him : "Let the pro-
perty lie where your sexual dalliance and immoral pleasures placed
it."1*1 j k c pojjjt stressed by the learned judge is that in earlier cases
"the attention of the Court was not drawn to the relevant provisions of
the Specifie Relief Act and the Indian Trusts Act."19* Since the suit is
for cancellation of an instrument, section 31 of the Specific Relief Act is
attracted and it gives the court discretion in the exercise of which the
principle of in pari delicto may be considered. It is respectfully sub-
mitted that this is the right approach to this complex problem.
Beoami transaction
[Section 41] : The tests of a benami transaction were discussed in

Ponnuswami v. Narayanan** by Pandian J. in the light of the case law on
the subject. The learned judge listed the following as the well known
criteria:
(/) source of purchase-money ;

(//) possession of the property ;
18
Veerayya Pillai v. Ramanatha, A.I.R. 1977 Mad. 263.
"A.I.R. 1977 Bom. 228.
" a M a t 240.
»»Id. at 235.
,0
A.I.R. 1977 Mad. 19.

(Hi) position of the parties and their relationship ;

(iv) pecuniaryvcircumstances of the transferee ;
(v) motive for the transaction ;
(vi) custody and production of title-deeds ; and
(vii) the previous and subsequent conduct of the parties.
The plaintiff's suit for a declaration that the defendant was his
benamidar was dismissed. The defendant was having possession, custody
of title-deeds and had never conducted himself as benamidar. On the
contrary, he was executing sale deeds in respect of part of the property
covered by the suit transaction. The court had thus no difficulty in
negativing the plaintiff's case that being a government servant he had
taken the document of sale in the name of defendant for the benefit of
himself. The question of benami was further examined by the Madras
High Court in K. Naicker v. E. Naicker.21 The suit property was
purchased by A with his own money in the name of his wife B. B sold
the property to X. The sons of A contended that the property was
joint family property and that B was only a benamidar. It was con-
tended on their behalf that once it was proved that the sale considera-
tion was furnished by their father, the burden of proof would shift to X
to show that the intention of A was to make B the beneficial owner.
Ismail J. held:21a
Once the title deed stands in the name of a person and some-
body comes and asserts that the real title vests in another
person and the person in whose name the title deed stands is a
benamidar, the burden of proving that the person in whose
name the title deed stands is not the beneficial owner and the
beneficial owner is somebody else is throughout on the person
who asserts to that effect, and the burden never shifts. [Empha-
sis added].
The view disclosed by the italicized words seems to be at variance

with the decision of the Supreme Court in Union of India v. Moksh Buil-
ders and Financiers?* In that case property was purchased in the son's
name as the father was in heavy arrears of income-tax. The property
was transferred to a private company which itself seems to have been
brought into existence for the purpose of holding the property in its
21
A.I.R. 1977 Mad- 38.
*la Id. at 39.
22
A.I.R. 1977 S.C. 409.

name. Still it was held from the source of the purchase-money and
enjoyment of the benefits of the transfer, that it was clear, as contended
by the government, that the transaction was only benami. As to burden
of proof, Shinghal J. observed that it "is not static, and may shift
during the course of the evidence."220 It may, however, be pointed out
that where the entire evidence is before the court, abstract considera-
tions of onus are out of place. Even when there is no conclusive
evidence to establish, or rebut the allegation of "benami", the court has
to decide "what would, on a careful assessment of the evidence, be a
reasonable probability and a legal inference from relevant and admis-
sible evidence."226 Thus viewed the decision of Ismail J. in Naicker's
case may be supported even if his view as to the burden of proof being
static is erroneous.
Transfer of dwelling house
[Section 44]: In Ram Bilas v. Shiv Rani29 a house owned by A devolved

on her death on her son and daughter. The son gifted his half share to
his wife B. The daughter sold her half-share to a stranger who sued for
partition or joint possession. The defendant B resisted the suit conten-
ding that the relief for joint possession was barred by section 44 and
the relief for partition was barred by section 4 of the Partition Act. B
was successful in the lower court. The High Court held in second
appeal that before either section 44 of the Transfer of Property Act or
section 4 of the Partition Act can be invoked the dwelling house should
be shown to be the property of an undivided family. Since this
condition is not satisfied in this case, neither section 44 nor the Parti-
tion Act can be invoked. The relief for joint possession was not
pressed. The relief of partition was allowed. This is as it should be.
One observation of Misra J., however, is too broadly worded. He
observes:280
The provisions of S. 4 (1) of the Partition Act as also those of

S. 44 of the Transfer of Property Act would be an impedi-
ment to a remedy for partition where a share of a dwelling
House belonging to an undivided family has been transferred to
a person who is a stranger to the family and who seeks parti-
tion of the house. [Emphasis added].
*2a/rf. a t 4 l 3 .
*8* Ibid.
23
A.I.R. 1977 All. 437.
*'•/«/. at 438.

It is respectfully submitted that the provisions of section 44 of the

Transfer of Property Act are not an impediment to the relief of parti-
tion but are an impediment only to the relief of joint possession.
Joint tenants
[Section 45] : If a decree for eviction is obtained against A, one of

the joint tenants, it cannot be executed against the other joint tenants
who were not made parties to the decree. If it is so executed, they
are entitled in a suit under order 21, rule 108 of the C.P.C. to get back
possession.2*
Improvements of bona fide transferee
[Section 51]: Improvements made with knowledge of the rights of a

claimant with right of pre-emption cannot be said to have been made
by a person believing in good faith that he is absolutely entitled to the
property.25
Doctrine of equitable estoppel
[Section 51] : A who is in possession of land allotted to him by a co-

operative society, constructs thereon a building believing bona fide that
he is the absolute owner. In fact, he had encroached to some extent
upon the land of the plaintiff. The plaintiff's suit for declaration of
her title to the land encroached upon by the defendant was decreed
by the courts below and they also granted a decree for vacant possess-
ion after removal of the building within a given time. On second
appeal to the High Court it was held that since the plaintiff was aware
of the work of construction and had not sought an interim injunction,
she was subject to the doctrine of equitable estoppel. In the result the
High Court directed that the plaintiff should be paid compensation and
the defendant should be allowed to retain his building.86
Doctrine of part performance
[Section 53A] : In Ranchhoddas v. Devaji%1 the plaintiff brought the

suit for possession and in the alternative for recovery of the balance of
purchase-money. He alleged that the defendant had agreed to buy the
property for Rs. 17,000 and had paid only Rs. 12,000 and defaulted as
" Md. Mustafa v. Mansoor, A.I.R. 1977 AH. 239.

16
Kata Devi v. Radha Kishan, A.I.R. 1977 Raj. 203.
■• Palanivelu v. Veradammal, A.I.R- 1977 Mad- 342.
t7
Supra note 1-

to the balance. The trial court granted him a decree for possession.
The High Court reversed the decree applying the doctrine of part per-
formance. Allowing the appeal of the plaintiff the Supreme Court
pointed out that it was an erroneous application of the doctrine of
part performance. Ray C.J. observed:273
In the present case the respondent who was the transferee
under the agreement did not perform his part of the contract
from 1952 till 1963....
Since there was no readiness and willingness on the part of the trans-
feree to perform the agreement, section 53A had no application.
Incidentally, it may be noted that Ray C.J. said:276 "It (doctrine of part
performance) is a sword and not a shield." This is obviously a typogra-
phical error and it should read as "It is a shield and not a sword" for
the doctrine is, as noted by the Chief Justice himself, "a defence".
The position of a person taking possession under a void lease for a

fixed period was considered by the Supreme Court in Technicians Studio
v. Lila** Such a person is not a tenant, but he can protect his possession
under section 53A on the basis of the doctrine of part performance. The
payment of rent agreed to be paid under the void lease, is attributable
to the contract between them and is useful only as evidence of his
observance of its terms for taking advantage of the doctrine of part
performance. Such payment does not make him a tenant. However,
if the payments are not referable to that contract, a tenancy may arise.
In this case the lease was void as it was contained in an unregistered
compromise. The payment of rent under it as per its terms created no
new tenancy. On the expiry of the period of the void lease, the person
in possession was liable to be evicted without any notice for as soon as
that period expires he can no longer rely upon the doctrine of part
performance.
Ill LAW OF VENDORS AND PURCHASERS

Contract for sale
[Section 54] : When a suit is brought for specific performance of an

agreement for sale, the sale crystallises in favour of the purchaser only
from the date of the decree for specific performance. It does not relate
™*ld. a/1520.
"> Ibid.
u
Supra note 1.

back to the date of the agreement.29 Time is not of the essence of a

contract for sale of immovable property. The evidence to overthrow
this presumption should be sufficiently strong. Such a plea should not
be allowed to be taken for the first time in end appeal.80 An agreement
for sale of a particular piece of land becomes void when as a result of
consolidation proceedings that piece of land ceases to be the property
of the "seller". As it did not create any interest in the property, it does
not enable the "purchaser" to sue for specific performance in respect
of the new plots allotted to his seller in the consolidation proceedings.31
A document for sale of "Banakhat rights" is only a document under

which rights under a contract for sale can be availed of. So it does not
convey any property and is not liable to be stamped as a conveyance.32
Even after a contract for sale the seller can apply to the authorities
under the Land Ceiling Act for the requisite permission to transfer the
property. Such an application cannot be thrown out on the ground
that the "seller" had lost his title on account of the agreement. This
is so even if the seller had received earnest money.38
Specific performance
[Section 54] : A enters into a contract to sell property to B. B dies and

is succeeded by C, D and E as his heirs. C, D and E agree that C alone
should sue and have the decree passed in her favour. C sues accordingly
making D and E parties to the suit. The oral agreement is valid for it
does not create any interest in the property and, hence, no registered
instrument is required. A cannot plead that decree should be passed in
favour of of C, D and E and not in favour of C alone for he is not made
thereby to shoulder any greater burden.34
In an agreement for reconveyance time is of the essence. To be treat-

ed as an agreement to "re-convey" the agreement should form part of
the original sale. A subsequent agreement is a mere agreement for sale
and not an agreement to reconvey.85
88
Ishar Singh v. Muluck Singh, A.I.R. 1977 P. & H. 38.
80
Govind Prasad \. Hari Dutt, A.I.R. 1977 S. C. 1005.
31
Piarey Lai v. Harilal, A.I.R. 1977 S. C. 1226-
88
Revenue Authority v. Mahesh, A.I.R. 1977 Guj. 158 (F-B.).
88
Taherbhoy v. State, A.I.R. 1977 Cal. 361.
84
Sheomurat Ram v. Savitri, A.I.R. 1977 All. 322.
36
Vaiyapuriv. Kalianna, A.I.R. 1977 Mad. 247.

Formalities of sale
[Section 54] : There can be an oral sale by delivery when the property
is less than Rs. 100 in value even if the vendee is in possession at the
date of the sale. All that is required in such a case is for the seller to
indicate that the character of the vendee's possession will change from
permissible possession into possession as owner. The recitals in the
unregistered sale deed accompanying the oral sale can be looked into
for the collateral purpose of considering the nature of the possession.36
Whether evidence of the oral sale is not excluded by the contempora-
neous unregistered sale deed is not discussed in this case.
Rule of caveat emptor
[Section 55 (1) (a)]: In Shaik Buddan Sab v. Nagammazi the plaintiff

purchased twelve acres of land from the defendant in 1947 and was
dispossessed from six acres in 1967 as the defendant had no title thereto.
In the plaintiff's suit for damages, the defendant invoked the rule of
caveat emptor. It was urged that the plaintiff had not made reasonable
enquiries and, as such, could not claim any damages. This contention
was repelled and it was held that section 55 (1) (a) has no application to
a case of total absence of title. The court awarded damages on the
basis of the market value of the property at the date of dispossession.
Duty of seller to deliver possession
[Section 55 (1) (/)] : When the buyer is granted a decree for specific
performance of the contract of sale, though the decree is silent as to deli-
very of possession, he can claim possession from the seller in execution
of the decree itself. This is by virtue of section 55 (l)(f) of the
Transfer of Property Act which provides that the seller is bound to
deliver possession when the title has passed to the buyer.88
The duty is to deliver possession of the property as it was on the

date of transfer of title, e.g., date of decree for specific performance.
If the seller damages the property, he can be made liable in damages
which can be recovered in execution of the decree itself.39
86
Kelu Rout v. Jayananda, A.I.R. 1977 Qri. 167.
87
A.I.R. 1977 A.P. 90.
88
Gyasa v. Risah, A.I.R. 1977 All. 156.
89
Poomataiv. Ramalmgam, A.I.R. 1977 Mad. 411.

IV LAW OF MORTGAGES
Mortgage or lease
[Section 58] : In Fuzhakkal v. Bhargavi40 Goswami J. had to deal with

a composite document of the year 1894 described as "otti". The consi-
deration of Rs. 650 for the transaction was an outstanding debt. The
transferee was to be in possession for seventy two years paying to the
government annual land tax on behalf of the transferor and to the
transferor a fixed amount annually as "purappad". On expiry of the
stated years the transferor was to pay Rs. 650 and take back possession.
The appellant before the Supreme Court was the purchaser of the
rights of the transferor from the latter's heirs. The government acquir-
ed the property in 1967 and deposited Rs. 30,000 as compensation. The
appellant contended that the document of 1894 was a mortgage and,
therefore, as owner he was entitled to the compensation money. The
respondents contended that the document was a lease and, hence, under
the Kerala Land Reforms Act, 1963, they were entitled to the bulk of
the compensation money. Goswami J. pointed out that the essence of a
mortgage document is that the property is to be security for a debt. The
document in question did not indicate that the transaction was one of
security for a debt. On the other hand, it was the transfer of a right to
enjoy the property which is indicative of a lease. The nomenclature
adopted in the document is not decisive. There are, no doubt, mixed
elements in the instrument. The predominant intention of the parties
should be found out in such a case. From this point of view, agreeing
with the High Court which had reversed the view of the trial court, it
was held that the document represented a lease. The High Court had
no doubt proceeded on the wrong assumption that whenever there are
features of a mortgage and of a lease, the transaction must be held to
be a lease. The assumption is, in fact, inconsistent with the under noted
Full Bench decision of the Kerala High Court,41 but an independent
consideration of the predominant intention of the parties led the
Supreme Court also to the view that the document represented only a
transaction of lease.
Sometimes, there is a usufructuary mortgage and a lease back. If the

rent stipulated is different in amount from the interest on the mortgage,
the two transactions can be considered to be distinct transactions.48
40
Supra note 2.
41
Velaymohan v. Ayyappan, (1975) 1 I.L.R. Ker. 166 (F. B.).
42
T.R. Seetharamiah v. Shivappa, A.I.R. 1977 Knt. 12?.

Usufructuary mortgage
[Section 58] : In a usufructuary mortgage the mortgagee should be
authorised to receive the rents and profits in payment of the mortgage
money. When A borrows from a bank on a mortgage and executes a
lease for ten years, agreeing that the rent may be adjusted towards the
debt, the mortgage is not to be treated as a usufructuary mortgage. So
it is not liable to surcharge under the City Corporation Act.43
Equitable mortgage
[Section 58]: In Saradindu v. Amiya Kumaru a lease deed was deposi-
ted on 28.3.1956 as security for a debt of Rs. 3,650 evidenced by a pro-
missory note dated 28.3.1956. This was clear from a memorandum of
the samQ date. The creditor contended that the intention of the parties
was that the title deeds should be held as security for earlier loans and
future loans also. There was no evidence of this. So it was held that
the other loans would be barred by three years limitation period as
unsecured loans.
Hypothecation of movables
Hypothecation is an extension of pledge and in it the movables given
as security are left in the possession of the owner to be held on behalf
of the secured creditor. Such movables cannot be attached and sold
for satisfying the claims of other creditors without first satisfying the
claim of the creditor to whom they have been hypothecated. In this
respect a hypotheca of movables differs from a mortgage of immovable
property for the latter can be attached and sold subject to the rights of
the mortgagee.45
Sub-mortgage
[Section 58] : A sub-mortgagee is not a predecessor-in-interest (pre-
decessor-in-title) of the mortgagee. His possession is not that of
the mortgagee or of the mortgagor for he is entitled to possession in his
own-right.46
Clogs on redemption
[Section 60] : In Gulabchand v. Saraswati Devi47 the facts were:
In 1936 the Government of India executed a perpetual lease in respect
" State v. Venkataravanamma, A.I.R. 1977 Mad. 47.

44
A.I.R. 1977 Cal. 343.
" Bank of India v. Binod Steel Ltd, A.I.R. 1977 M.P. 189-
46
Subramoniav. Pachi Amma, A.I.R. 1977 Ker. 5.
47
A.I.R. 1977 S.C. 242.

of a plot of land with a condition that it should have as lessor a right
of re-entry if any covenant in the lease was broken by the lessor. The
lessor constructed a building on the plot of land. The building together
with the site was mortgaged to X for Rs. 70,000 on 31.5.1956 under a
mortgage by conditional sale. The mortgagor was to repay within four
years. The mortgage further provided by clause (9) that if within the
period of four years any covenant was broken and the government
exercised its right of re-entry by serving a notice of re-entry the sale
would become absolute and the mortgagee would have the right as
owner to deal with the government. In 1958 the government issued a
notice exercising the right of re-entry. On 24.5.1960 the suit was
brought for redemption on the refusal of the mortgagee to receive the
mortgage money. The suit was resisted on the ground that the mortgage
had come to an end and the mortgagee had become absolute o^ner by
virtue of clause (9) of the mortgage deed. The Supreme Court held
that clause (9) was a clog on redemption and was invalid. Accordingly,
the suit for redemption was decreed.
Extinction of right to redeem
[Section 60] : The right to redeem is lost only when a specific order
as contemplated by order 34, rule 8 (3), Civil Procedure Code is passed.
So if the decree for redemption obtained by the mortgagor does not
provide that in default of payment by the mortgagor he shall be debar-
red of all right to redeem, the right to redeem is not extinguished. The
mortgagor can file another suit for redemption. There is no res judicata
in such a case for the issue in each case is whether the plaintiff has the
right to redeem at the relevant time which is different in the two
English mortgagee's right of private sale
[Section 69]: The word "sale" in section 69 does not extend to a sale
under the Land Revenue Act.49
In Narandas v. Kantam60 the Supreme Court has resolved a conflict
of judicial opinion in regard to the effect of a contract for sale entered
into by an English mortgagee clothed under section 69 of the Transfer
of Property Act with a power of sale. The Madras High Court had
held in Meenakshi Valu v. Kasturi51 that the effect of such an agreement
48
Yasin Dadu v. Kasim Babalal, A.I.R- 1977 Bom. 341.
49
N-I-D. Corporation v. State, A.I.R. 1977 All. 63-
60
Supra note 3.
51
(1967)3I.L.R. Mad. 161.

is to extinguish the mortgagor's right to redeem. It is in conflict with
the view expressed by the Bombay High Court in Abraham v. Abdul
Latiff*2 The Supreme Court has approved the Bombay view and
overruled the Madras view. Ray C.J. pointed out that the English
decisions on the subject, such as Waring (Lord) v. London and
Manchester Assurance Company** and Property and Bloodstock Ltd. v.
EmertonH which hold that as soon as the mortgagee enters into a cont-
ract for sale with a third party in exercise of his power of sale, the
mortgagor's right of redemption is at an end, proceed on the basis that
the contract for sale creates an equitable title. In India under section
54 of the Transfer of Property Act a contract for sale creates no inter-
est in the property. The distinction between equitable and legal estates
is unknown to India. So in India until the mortgagee's contract for
sale (or auction sale as in the instant case before the Supreme Court)
is followed up by a registered instrument, the mortgagor can exercise
his right of redemption.
Right of contribution
[Section 82] : A mortgage is executed by A and B and the decree

is scaled down as to A under a Debt Relief Act, but B is obliged to pay
the full amount as he is not entitled to relief under that Act. In such
a case though as between the judgment-debtor and the decree-holder,
A's liability would be discharged by payment of the scaled down
decretal amount, as between A and B inter se there is liability on the
part of A to contribute to the debt. This liability is independent of
the joint liability of A and B to the decree-holder.85
Deposit in court
[Section 83] : In Pushparani v. Ramchandra5* the mortgagor deposited

the mortgage amount in court under section 83 in May, 1975. Notice of
the deposit was tendered to the mortgagee's husband and was refused
by him. The court regarded this as sufficient notice to the mortgagee
and set her ex-parte. On 1.2.1976 the mortgagor filed a verified state-
ment expressing her willingness to receive the deposit in full satisfaction
of the mortgage dues and to deliver possession. On the same day the
mortgagor wanted to withdraw his petition and the deposit in view of
•• A.I.R. 1944 Bom. 156.

89
(1935) Ch. 310.
64
(1968) Ch. 94.
" Minin Kamel v. Ramakant, AJ.R. 1977 Knt. 135.
66
AJ.R. 1977 Ori. 23.

anticipated legislation favourable to debtors. The mortgagor's petition

was ordered by the trial court but this was set aside in revision.
Mohanti J. pointed out that though the mortgagee had not filed a veri-
fied petition and had not mentioned the mortgage amount in the
verified statement, she was entitled to withdraw the money as she had
fulfilled the requirements of section 83.
Doctrine of subrogation
[Section 92] : In Lakshmi Pillai v. Eswara Pillai11 two appeals raising

common questions of law were disposed of by a common judgment.
The facts of one of the cases may be stated for appreciating the question
of law involved. The suit was for redemption of a mortgage of 1910.
The Transfer of Property Act was applied only from 1.7.1955 to the
Travancore area of the State of Kerala in which these lands were situated.
A co-mortgagor redeemed the mortgage in 1958 and got into possession.
Under section 44 of the Kerala Land Reforms Act a mortgagee with
possession becomes a tenant if he is in possession for 50 years conti-
nuously. Under explanation II to section 44, in computing the fifty
years* period the possession of a predecessor-in-interest can also be
taken into account. The suit for redemption brought against the
redeeming co-mortgagor (defendant) in possession would fail if the
defendant had become a tenant under the Act. To claim the benefit of
50 years' continuous possession the defendant had to fall back upon the
possession of the mortgagee of 1910. This could be done only if as
co-mortgagor he could claim a right of subrogation to the mortgage
of 1910.
The Full Bench held that as at the date of the mortgage the
Transfer of Property Act was not applicable, the redeeming co-
mortgagor's position is governed by the ruling of the Supreme Court in
Ganeshi Lai v. Joti PershadS* Thus viewed, the co-mortgagor acquires
on redemption no right of subrogation, but only a right to reimburse-
ment of the expenses incurred by him. It was argued that since the
co-mortgagor had redeemed in 1958, and the Transfer of Property Act
had become applicable to this land by that time, the co-mortgagor had
the right to subrogation. The Full Bench observed :58°
No authority was cited to show that the law of subrogation

must be judged as on 1958 in this case, when the mortgage of
87
Supra note 9.
*8 Supra note 8.
"« Supra note 9 at 155.

1085 M.E. was redeemed and not on the date of the transaction
itself in 1085 M.E. We see no ground to accept this sub-
mission.
If a third party had redeemed the mortgage in 1958, there can be no

doubt that not being a party himself to the mortgage, his rights, if any,
will have to be considered only with reference to the date of redemption
for it is from the act of redemption that his rights (whatever they may
be) would spring. If this is so, there is no reason why a different
principle should be applied to the redeeming co-mortgagor. Since the
rights in either case spring from the act of redemption, it is the law as
at the date of redemption that would govern the rights subsequent to
redemption. It is not necessary, however, to labour this point for the
Full Bench considered the rights of the parties also on the basis that the
law to be applied is that embodied in the Transfer of Property Act. The
Full Bench referred to sections 92 and 95 and quoted as follows :5Bb
Where one of several mortgagors redeems the mortgaged

property he shall, in enforcing his right of subrogation under
S. 92 against his co-mortgagors, be entitled to add to the
mortgage money recoverable from them such proportion of the
expenses properly incurred in such redemption as is attribut-
able to their share in the property.
The judges observed :S8c
S. 92 does not provide that the redeeming co-mortgagor shall

be deemed to be a mortgagee or shall be substituted to
the full rights of the mortgagee for all purposes. It is careful
enough to provide that he shall have the same rights as the
mortgagee redeemed, only for the limited purpose of redemp-
tion, foreclosure or sale. Mark the difference in language in
the third clause of S. 92, where subrogation is allowed "to
the rights of the mortgagee whose mortgage has been
redeemed." Mark again, the provision in S. 95 which
elucidates the right of the redeeming co-mortgagor, to be only
to add to the mortgage-money recoverable from the other
co-mortga*gors, such proportion of the expenses properly
incurred in redemption of the mortgage, as is attributable to
the share of the non-redeeming co-mortgagors. In the light
***> Id.nt 156.

••« Ibid.

of these provisions of the Transfer of Property Act, it appears

to us that the position under the Transfer of Property Act is
the same as expounded by the Supreme Court in Ganeshi Lai v.
Joti Pershad.
It is respectfully submitted that these observations require re

consideration. Section 95 specifically refers to the redeeming co-
mortgagor having the right of subrogation. Section 92 does not make
any distinction between the co-mortgagor and any other person entitled
to subrogation rights under that section. The words "so far as regards
redemption, foreclosure or sale of such property the same rights as the
mortgagee" are not restrictive at all and are intended to provide for a
total substitution to the position of the mortgagee and this right is
compendiously referred to as the right of subrogation in para 2 of
section 92. Thus, both section 92 and section 95 make it abundantly clear
that the co-mortgagor after the 1929 amendment has the right of sub
rogation to the mortgage redeemed by him. This position diverges
radically from the pre-Act position to which the Supreme Court's
decision in GaneshilaVs case59 refers. It is, therefore, difficult to see
how that decision of the Supreme Court can have any application to a
co-mortgagor who can assert a right to subrogation under the Transfer
of Property Act as amended in 1929.
V LAW OF LANDLORD AND TENANT

Legal position of tenant after eviction decree
When a tenant against whom an eviction decree is passed gets sta
tutory protection against eviction, he cannot be treated as a trespasser
and no mesne profits can be claimed against him so iong as such sta
tutory protection lasts. When it is withdrawn, he is liable to be treated
as a trespasser even if the court grants him time to deliver possession
(for four months in this case) and during the period he is in possession
under the stay order of the court, his possession is only that of a
trespasser and he is liable to pay mesne profits for that period.60
Lease for agricultural purpose
In the case of a lease for agricultural purposes, if the tenant holds

over, the tenancy can be regarded as continued from yfear to year ter
minable by six months' notice. Sections 106 and 116 of the Transfer of
Property Act are applicable as principles of equity, justice and good
69
Supra note 8.
60
Firm Dewan Kirpa Ram v. Hari Kishan, A.I.R. 1977 All. 22.

conscience.61 Keeping buffaloes on the leased premises and carrying on

a milk business at such premises, i.e., dairy farming is an agricultural
purpose.82
Lease for manufacturing purpose
When coffee seeds are powdered a different article having a distinctive
name, character or use does not emerge. Hence, the process by which
coffee seeds are converted into powder cannot be regarded as manu-
facture.65 Putting gum on cigarette paper purchased from the market,
cutting it into strips and packing them cannot be described as a manu-
facturing process.64
Oral leases and implied
[Section 106] : Section 106 is applicable to oral leases and also to
leases implied by land.65
Notice to quit: plurality of tenants
[Section 106] : When the tenant dies and his interest is inherited by his
heirs as tenants-in-common, it is necessary to give a notice to quit to all
of them. This was laid down in Ramesh Chand v. Gopeshwar.** The
Allahabad High Court held that the ruling of the Supreme Court in
Kanji Manjiv. Trustees of the Port of Bombay*1 should be confined to
joint tenants in which case notice to one joint tenant would be suffi-
cient.68 The extension of this ruling by the Patna High Court to
tenants-in-common in Tata Iron & Steel Company Limited v. Abdul*9
was disapproved and dissented from. The contrary ruling of a single
judge in Vishmawati v. Bhagwat™ was overruled.
Local law, whether excludes notice under section 106
The rule deducible from the decisions of the Supreme Court71 is that
if a local Act has a "scheme of its own and is intended to provide a
fll
Ranga Iyengar v. Pandaram, supra note 12.
68
Ismail Khan v. Mahboob Alit A.I.R. 1977 A.P. 363.
«s Meghraj v. Seshagirirao, A.I.R. 1977 Knt. 163.
«* Rolls Print Co. v. BM. Singh & Sons, A.I.R. 1977 Cal. 303.
e
* Ismail Khan v. Mahboob Alt, supra note 62.
66
AJ.R. 1977 All. 38.
*7 A.I.R. 1963 S.C. 468.
*• A.I.R. 1977 All. 476.
" A J . R . 1970 Pat. 338.
70
A.I.R. 1970 AH. 389.
71
Ratan Lai v. Vardesh Chandart supra note 4 ; Raval & Co. v. Ramachandran, supra
note 6, followed in Choeth Ram v. Deep Chand, A.I.R. |1977 |P. & H. 187, treating
Bhaiya Ram v. Mahanr Prasad, AJ.R. 1969 Punj- 110 (F.B.) as overruled.

complete code" it can displace provisions for eviction contained in

the Transfer of Property Act. It is in the light of this principle that
cases on this subject have to be considered.
The Hindu Religious Institutions and Endowments Act of 1966 deals
with termination of leases of religious endowments. The provisions in
this behalf do not provide for a notice of termination of the lease in
the case of tenants by holding over. Such tenants are treated as
"encroachers" and provision is made for their eviction. It was held in
Jt. Commissioner, Endowments v. Meera Saheb12 that the provisions
constitute a self-contained code. They are a "local law" within the
meaning of section 106 of the Transfer of Property Act and so exclude
the need for a notice to the tenant under the general law (/<?., the
Transfer of Property Act). In Kaloot Saov. {Widow of) Munnisao™,
on the other hand, it was held that the Bihar Buildings (Lease, Rent
and Eviction) Control Act of 1947 is not a complete code and so does
not dispense with the requirement of notice under the Transfer of
Property Act. The rent control legislation in this case has been held to
supplement and not supersede the general law. It does not confer on
the landlord _ an additional right to evict without notice, but provides
additional protection to the tenants. In this view the provisions of the
Transfer of Property Act as to notice were also held to be applicable.
In Mahasukrai v. Kishori Charan74, it was held that the West Bengal
Premises Tenancy Act of 1956 is a complete code as to monthly
tenancies. It does not provide for a notice when forfeiture is incurred.
So the notice provided under section 114A of the Transfer of Property
Act is not required for enforcing the right of re-entry under this Act.
In K.S.R. Setty v. Vasudevamurthy™ it was held that the Karnataka
Rent Control Act, 1961, is only supplemental to the Transfer of
Property Act and so the landlord has to give a proper notice under the
latter Act before he can seek the relief of eviction under the rent control
legistation.76
In Bihar, the Bihar Buildings Control Act does not provide for evic-
tion of the tenant on the ground of denial of the landlord's title. For
this reason it has been held in Kantilal v. Ashokalata17 that a landlord
72
AJ.R. 1977 A.P. 100.
7
» AJ.R. 1977 Pat. 90-
74
A.I.R. 1977 CaL 122.
n
A.I.R. 1977 Knt. 50.
7
* See also Kannaswamy v. B.L.S. Shetty, A.I.R. 1977 Knt. 72.
77
AJ.R. 1977 Pat. 118.

cannot take advantage of section 111, clause (g), Transfer of Property
Act to forfeit the tenancy for denial of his title.
The C.P. and Berar Letting of Houses and Rent Control Order, 1949,
does not displace the provisions of the Transfer of Property Act. A
notice given by the landlord under this Act enures to the benefit of his
successor-in-title. If he dies after issuing the notice, his heirsc an take
advantage of it.78
Principles of construction of notice to quit
[Section 106]\ A notice to quit should be construed strictly. In K.S.R.

Setty v, Vasudeva Murthy79 a monthly tenancy commenced on 7th
March. The landlord terminated the tenancy and called upon the ten-
ant "to vacate the said premises by 7-11-64". This was held to be
invalid as the periodical tenancy ends with the 6th of each month. By
giving 24 hours more to vacate than what is required under the law,
the notice failed of its purpose.
In Bhagabandas v. Bhagwandas*0 the Supreme Court had the opportu-

nity to point out that a notice to quit should not be construed with a
desire to find faults in it, but it should be construed ut res magis valeat
quam pereat. The tenancy in that case was a monthly tenancy ending
each month and the notice called upon the tenant to "vacate within the
month of October". Bhagwati J. has pointed out that notice means that
the tenant is required to vacate latest by midnight of the last day of Octo-
ber. He is not required to vacate earlier as contended by the respon-
dent. The Allahabad High Court considered the notice to be dubious
as to the date of determination and invalidated it. Allowing the ap-
peal, the Supreme Court observed that a notice must not be read "in
a hyper-critical manner, nor must its interpretation be affected by peda-
gogic pedantism or over-refined subtlety, but it must be construed in a
commonsense way". In fact, the notice in this case stated that the
tenant would be a tresspasser from 1st November. This shows that
the tenancy was determined only at the end of a period of the tenancy
(i.e., at the end of the month in this case). The reasons for issuing a
notice to quit need not be stated in it,81
78
R.P. Ghosh v. Pramilabai, A.I.R. 1977 Bom. 181 (at Nagpur).
79
79
Supra note 75.
80
A.I.R. 1977 S.C 1120.
81
R.P. Ghosh v. Pramilabai, supra note 78.

Notice in alternative form
A notice to quit may be in the alternative. In Mahasukrai v. Kishori

Charan6z a lease was for five years commencing from 1.5.1958. It
expired on 1.5.1963. The tenant became a monthly tenant by holding
over from 2.5.1963. Each period of this tenancy expires on the 1st of
a month. The landlord issued a notice calling upon the tenant to deli-
ver possession on the expiry of the month of November, 1963. This
notice would be invalid. But the landlord's notice demanded possession
in the alternative "at the end of a month of your tenancy which would
expire next after one month from the receipt of this notice." This
alternative demand was held to be sufficient to make the notice valid.
Notice, by whom to be issued
A notice signed by the lessor's husband was regarded as valid when

the lessee has known all along that it is the landlady's husband who
is in management of the property.83
Service of notice
Where personal delivery of notice is refused, it is not necessary to

resort to affixation of notice. There is sufficient service of notice by
tender. It is only when the person is not available that the alternative
of affixture need be resorted to.84
Periodical tenancy and notice to quit
The difficulties experienced by landlords in giving a valid legal notice

to the tenant to quit are well illustrated by the decision of the Patna
High Court in Shyam Narayan v. Raghunath** where a monthly tenant
was a chronic defaulter. A notice dated 30.10.69 was sent by registered
post (after earlier notices were returned unserved) and it was returned
with the endorsement "Refused: 18.11.69". The advocate of the land-
lord sent a phonogram. The message was conveyed by phone to the
postal authorities and, subsequently, a copy of the message was sent
by way of confirmation by the post office. The name of the advocate
was written on the message by the postal department. This was on
12.11.69. Fortified by these two modes of sending the notice the land-
82
Supra note 74.
88
Parbativ. Manasi Devi, A.I.R. 1977 Ori. 139.
84
Shambhu Dayai v. Dt. Judge, Rae Bareli, A.I.R. 1977 All. 447 ; Zakir v. Md,
Hussain, A I.R. 1977 All. 476.
85
A.I.R. 1977 Pat. 155.

lord brought the suit hopefully for eviction. He succeeded before the
munsif but failed in appeal. In second appeal to the High Court the
question was as to the validity of the notice under section 106. The
phonogram was rejected on the ground that it was not "signed" as
required, either by the landlord or by his agent. No doubt it bore the
name of the advocate but putting down of the name by the post
office does not come within the ambit of the expression "sign". As
regards the refused registered letter it was no doubt sufficient
service, but since the endorsement of refusal is dated 18.11.1969
it means that the tenant did not get fifteen days' clear notice. So this
notice also was ineffective. The second appeal failed and the landlord
had to console himself with the reflection that be had understood
some of the pitfalls of the law and cherish a distant hope that he could
avoid them in the next bout of litigation. In Fakiragouda v. Parvatibai**
a monthly tenant was required to "vacate the house before the
beginning of 1st January 1973". This means "before the end of 31st
December," i.e., the tenant was not given the whole anniversary of the
31st December. So the notice was invalid and the eviction suit failed.
The landlord in 0.G. Krishnan v. MeenakshikuttyS7 was particularly

lucky. By a notice issued in 1969 the tenant was called upon to vacate
in January, 1967. Of course this is an absurdity! The court construed
it as January, 1970 and upheld the validity of the notice observing that
"the benefit of any accidental error or a slipshod phraseology in the
notice should go to the tenant.*' In Abdul Hameed v. Rangaswami
Chettiar** a monthly tenant was required by notice to deliver possession
"on 30th Nov." Since this would be at the last moment of that day,
the notice was in order. The learned judge, Ramaswami J. has noticed
that if the notice had required the tenant to deliver possession "on or
before 30th November," the result might well have been different.
Duration of lease
[Section 107]: An unregistered lease deed is not admissible in evidence

and so the period when the lease expires cannot be spelt out of the
document.89
A fixed period tenancy may contain provisions for its earlier termina
tion. There in M.M. Ashfaq v. Rashkey Jahan90 a lease for 99 years
86
A.I.R. 1977 Knt. 112.
87
O. G. Krishnan v. Meenakshi Kutty, A.I.R. 1977 Ker. 199.
88
A.I.R. 1977 Mad. 415.
89
Choeth Ram v. Deep Chandt supra note 71.
90
A.I.R. 1977 All. 135.

contained a provision that if the lessor required the land for his own use
the lessee should vacate it. This was held to be valid and the lessee was
held to be liable to be evicted under this clause.
Liabilities of lessor and lessee
(i) Effect of destruction of premises [section 108 (e)] ; In Shyam

Kumari v. Ejaz Ahmad91 A leased a shed to B. The house was destroyed
by excessive rains. This would have given the tenant an option to
repudiate the lease under section 108 (e). The lessee, however, did
not exercise the option. On the other hand, the lessor took possession
and constructed a new pucca house on the same site. The lessee's suit
was for possession and permanent injunction. It was contended by the
defendant that the lease had come to an end by the application of the
doctrine of frustration. This contention was rejected on the simple
ground that the doctrine of frustration is inapplicable to leases. The
tenant's claim, however, was not accepted on the ground that he was
negligent in not getting the shed repaired earlier so as to withstand
excessive rains and so the proviso to section 108 (e) of the Act is
attracted. The proviso is only to the effect that negligence on the part
of the tenant would disentitle him from exercising the option to
repudiate the lease. This does not seem to have any relevance for
deciding the claim of the tenant. It was because he had not exercised
the option to repudiate the lease that he had brought the suit for
possession. To say that he had no option at all would not alter the
situation since the non-existence of an option and the non-exercise of an
existing option would stand on the same footing. The court was no
doubt influenced by the fact that the lessor had built a pucca house on
the site on which there was at the time of the original lease only a
dilapidated shed. This may give rise to equitable considerations for
raising the rent, but cannot justify the rejection of the plaintiff's claim
when the tenancy had not been put an end to in a manner known to
law.
(ii) Landlord 'neglecting' to pay taxes [section 108 (g)] : The term
'neglect' used in clause (g) in regard to payment of taxes, means only
non-payment of the tax at the time it is payable. The tenant can pay
the tax after a reasonable time expires and recover it from the landlord
deducting it from the rent.92
91
A.I.R. 1977 All. 376.
92
Azharuddin v. Syed Zahid Husain, A.I.R. 1977 All. 435.

(Hi) Lessee causing injury to premises : An act cannot be said to be

contrary to section 108 (o) unless it is the act of an imprudent person, or
an act which is destructive or permanently injurious to the property. So
the replacement of a termite-ridden old beam by a new beam is not an
act in contravention of section 108 (o).93 When the tenant makes an
opening in a common wall, he commits a breach of clauses (m), (o) and
(p) of section 108. Damage is the genus of which 'deterioration' and
destruction' are two species. For this damage the landlord sought relief
in a suit for damages and for injunction to repair the wall. The suit
was successful and the tenant repaired the damage. Thereafter, the
landlord brought the suit for eviction in respect of the same wrong.
The suit was held to be not maintainable on two grounds. In the first
place, it is barred by order 2, rule 2, Civil Procedure Code since there
was only one cause of action which could not be split up between the
two suits. Secondly, the damage having been repaired, though pursuant
to a decree, there was no further foundation for the action of eviction.94
(iv) Effect of transfer of lease : right to arrears [section 109] : A

compromise embodied in a decree may operate as a 'contract to the
contrary" and transfer the right to arrears of rent due before the date of
transfer.95 When the lessor transfers the land, he may or may not
transfer the arrears of rent already due. Such accrued arrears may be
transferred to another person separately. Where the right to recover
arrears is also transferred along with the land, the transferee can sue the
tenant for eviction on the basis of his default in payment of rent.96
(v) Payment of rent: When the tenant remits rent by money order,
there is a rebuttable presumption that it is received in due course by the
landlord. This is not rebutted by mere denial of receipt by the
landlord.97
Waiver of notice
When a notice is served by the landlord, it cannot be unilaterally

withdrawn. But if it is not acted upon by both the parties, the lessor
may give a second notice. This would be clear from illustration (b) to
•• Keshavji v. Sulochana Baif A.I.R. 1977 BQIH. 7.

** Benoy Bhushan v. Sabitri, A.I.R. 1977 Cal. 109.
98
Girdharilal v. Hukam Singh, A.I.R. 1977 S.C. 129.
•• Champaklal v. Saraswatiben, A.I.R. (1977) Guj. 48 (F.B.).
" Rameshwar Dayal v. Mani Lai, A.I.R. 1977 All. 534.

section 111. Any invalidity in the first notice would not invalidate the
second notice in such a case for the former is to be treated as waived,98
There is no waiver of notice to quit by acceptance of rent subsequent

to the notice when the rent is received from a "statutory" tenant.99
Even from a contractual tenant receipt of rent sent by money order
"under protest as compensation" does not operate as waiver or create a
fresh tenancy.100 Thus, acceptance of rent merely as a prudential act
without the intention to treat the lease as subsisting is not a waiver of
the earlier notice requiring a fresh notice for eviction. In Sundaram v.
Abdul Ghan101 a notice to quit was given on 17-4-1967 which was
followed up by a petition for eviction before the rent controller. Since
the lease comprised flour mill machinery also, the rent controller had no
jurisdiction and so the petition was withdrawn and a regular suit was
instituted on 22-7-1968. It was contended that as rent was received by
the landlord in the intervening period the notice dated 17-4-1967 must
be deemed to have been waived and as there was no fresh notice the suit
was not maintainable. Illustration (a) to section 113 was relied upon
for the proposition that receipt of rent per se amounts to waiver.
Natarajan J. has pointed out that the illustration does not control the
plain meaning of section 113. The section requires a consensual act,
intention of both parties, for waiver to take place. Since this is not the
case here, it was held that the notice was operative and the suit was
maintainable.
Forfeiture
[Section 111 (g)] : In Daya Ram v. ChiranjtV02 A leased a house to B,

in 1951 for one year. On the expiry of the lease B held over and in
1956 sold the property to C. A sued in 1958 for recovery of possession
from C. It was held that B incurred a forfeiture when he set up title in
himself. The forfeiture can be enforced only after giving a notice under
section 111 (g). It was argued that under section 114A, notice was not
required when the lessee has broken a covenant against alienation. In
this case there was a covenant against alienation and B had committed a
breach of it. The Allahabad High Court held that the notice contem
plated by section 114A is different from that contemplated under
section 111 (g). A notice of forfeiture is necessary under section 111 (g)
98
Vasudevarao v. Jadu Nandan, A.I.R. 1977 Cal. 142.
•* Ram Singh v, Sagar Chand, A.I.R. 1977 H.P. 21.
100
Mardani v. Paul Choudhury, A.I.R. 1977 Gau. 17.
101
A.I.R. 1977 Mad. 121.
101
A.I.R. 1977 All. 449.

Vol. XIII Law of Property 101
and as no such notice had been given the suit should have been dis
missed. The lower appellate court held section 111 (g) inapplicable on the
ground that C was setting up title in himself through B and was not the
lessee of the plaintiff. Kapoor J. pointed out that since there is a lease
of 1951 to start with it has to be determined before relief can be claimed
against C who is only a representative-in-interest of the lessee B. In the
result, the appeal was allowed and the landlord's suit was dismissed for
want of a proper notice to quit.
Challenging title of lessor's heir : A lessee cannot be said to have

denied the title of the landlord when he challenges the title of the heir
of the landlord. He can call upon the person demanding rent to prove
that he is the real heir of the lessor.108
[Section 114] : When a lease expressly gives the lessee the right to
sub-let, the sub-lessee can claim relief from forfeiture when the head-
lessee is in arrears of rent and has thereby incurred a forfeiture.104 It
was further held that the relief against forfeiture may be granted for
the first time even at the appellate stage.105 In the absence of a proviso
for re-entry for non-payment of rent, there can be no forfeiture for
default in payment of rent.106 Further, when section 114 is inapplicable,
relief against forfeiture cannot be given on general principles of justice,
equity and good conscience.107 A valid determination of the lease under
the provisions of a local Act cannot be treated as forfeiture under
section 111 (g) of the Transfer of Property Act.108
Tenancy by holding over
[Section 116] : When a lessee under a building lease for thirty years
holds over after the expiry of the term, a tenancy by holding over arises
under section 116. This tenancy by holding over is a monthly tenancy
as the lease is not for an agricultural or manufacturing purpose* When
the lessor is the government, acceptance of rent by an officer of the
government subsequent to the notice, but without knowledge of it, does
not operate as waiver. Waiver is a bilateral act and should amount
to a new agreement. It differs from estoppel which is a rule of
evidence.109
108
Nanduben v. Ramchoddas, A.I.R. 1977 Guj. 173.
l0
* Govinda Lai v. Tarak Nath9 A.I.R. 1977 Cal. 178.
105
Ibid., dissenting from Habib Ahmed v. Keoti Kuer, A.I.R. 1946 All. 328.
106
Hari Prasad v. Indira Devi, A.I.R. 1977 Pat. 208.
1OT
Ibid.
108
Ibid.
108
MunniDeviv. State of U,P., A.I.R. 1977* All. 386

[Section 116] : A lease for one year provided for enhanced rent
if the lessee held over at the end of tenancy. But the lessor received
rent at the original rate only after the expiry of the lease. In the mean-
time the tenant by holding over became a statutory tenant. In these
circumstances it was held that the landlord's claim for an enhanced rent
is not tenable.110
VI GIFTS
Revocability by heir
[Section 126] : The right to revoke a gift for coercion, fraud, misre-
presentation or undue influence is a statutory right. It is not a right
confined to the donor personally. On the death of the donor, the legal
representatives can sue for a declaration that the gift is invalid.111
VII CONCLUSION
Over 100 cases which have been reviewed in this survey range over a
broad spectrum of property litigation. A few observations may be
made in this connection. Numerous tests of benami have been laid
down in the decided cases. The Supreme Court has rightly held in the
under-noted case112 that the burden of proof as to benami is not static.
An observation contra is found in a decision of the Madras High
Court113 but it should be regarded as of a debatable character in view of
the Supreme Court's clear ruling on the subject. The question whether
legislation should ban benami transactions is worthy of consideration at
this stage. In execution proceedings they were forbidden long ago. In
connection with taxation law and insolvency law particularly these
benami transactions bedevil litigation. It seems to be high time we put
an embargo on benami transfers.
The High Courts are still preoccupied with local legislation govern-
ing the relations between landlord and tenant. The statutory tenant
will continue to engross the attention of the courts for quite sometime
to come in view of the persistent scarcity of residental accommodation
in urban centres. In this context it would be worthwhile to consider
whether a standard pattern of statutory tenancy cannot be evolved
which would avoid the many pitfalls revealed in the growing litigation
on this subject. This would indeed be a great boon to a large mass of
urban dwellers who are baffled by doubts as to their legal rights in the
context of central and local legislation containing divergent provisions
on this subject.
110
Vsta Ahmedoo v. Abdul Rehman, A.I.R. 1977 J. & K. 79.
111
Pardhanav. Amin Chand, A.I.R. 1977 H. P. 94.
112
Union of India v. Moksh Builders & Financiers, supra note 22.
118
Ponnuswami v. Narayanan, supra note 20.

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LAW OF PROPERTY

* Vice-Chairman, State Official Language (Legislative) Commission, Ministry of Law,

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The rights of a redeeming co-mortgagor were the subject matter of a

Immovable property [section 3] : The right to catch and carry away

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In these circumstances the High Court granted a mortgage decree

(//) Will or transfer inter vivos : In Pannalal v. Dilip Kumar16 a

"A.I.R. 1977 Ori. 146.

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[Section 6] : Right of survivorship as between co-widows : A died

S. 6 (a)... prohibits only the transfer of the bare chance

Hence, while C is alive she cannot assert a claim to survivorship

Minor's right to set aside sale [section 6 e] : A minor's right to sue

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Transfer for unlawful object

[Section 6] : A transfers property to his mistress in respect of past

[Section 41] : The tests of a benami transaction were discussed in

(/) source of purchase-money ;

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(Hi) position of the parties and their relationship ;

The view disclosed by the italicized words seems to be at variance

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Transfer of dwelling house

[Section 44]: In Ram Bilas v. Shiv Rani29 a house owned by A devolved

The provisions of S. 4 (1) of the Partition Act as also those of

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It is respectfully submitted that the provisions of section 44 of the

[Section 45] : If a decree for eviction is obtained against A, one of

Improvements of bona fide transferee

[Section 51]: Improvements made with knowledge of the rights of a

Doctrine of equitable estoppel

[Section 51] : A who is in possession of land allotted to him by a co-

Doctrine of part performance

[Section 53A] : In Ranchhoddas v. Devaji%1 the plaintiff brought the

" Md. Mustafa v. Mansoor, A.I.R. 1977 AH. 239.

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The position of a person taking possession under a void lease for a

Ill LAW OF VENDORS AND PURCHASERS

[Section 54] : When a suit is brought for specific performance of an

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back to the date of the agreement.29 Time is not of the essence of a

A document for sale of "Banakhat rights" is only a document under

[Section 54] : A enters into a contract to sell property to B. B dies and

In an agreement for reconveyance time is of the essence. To be treat-

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Rule of caveat emptor

[Section 55 (1) (a)]: In Shaik Buddan Sab v. Nagammazi the plaintiff

Duty of seller to deliver possession

The duty is to deliver possession of the property as it was on the

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[Section 58] : In Fuzhakkal v. Bhargavi40 Goswami J. had to deal with

Sometimes, there is a usufructuary mortgage and a lease back. If the

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" State v. Venkataravanamma, A.I.R. 1977 Mad. 47.

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Extinction of right to redeem

English mortgagee's right of private sale

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[Section 82] : A mortgage is executed by A and B and the decree

[Section 83] : In Pushparani v. Ramchandra5* the mortgagor deposited

•• A.I.R. 1944 Bom. 156.

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It is respectfully submitted that these observations require re