Beruflich Dokumente
Kultur Dokumente
Dr. S. B. N. Prakash
Professor of law NLSUI. BANGALORE
Land laws
(Property law)
Study of law relating to the transfer of property in two
parts.
Part I relating to the general principles of transfer of
property
Part II relating to specific types of transactions like
sale, mortgage, lease, exchange, gift, charge and
actionable claims.
Easements Act regarding licenses.
Registration act and Stamp Act regarding alienations
covered under transfer of property act.
General study regarding rent control legislations.
Total Marks
Project marks
Viva marks.
Mid term exam. marks
End term exam marks
Attendance
Close book exam
100
25
10
20
40
05
Transfer of property
Part I
Historical background of transfer of property.
What are the types of property.
What types of property are covered under transfer of
property law.
What is a transfer.
Rules relating to the transfer of both movable and
immovable properties.
Specific rules relating to the transfer of immovable
properties.
Conditional transfer, condition precedent condition
subsequent,
Transfer of property
Part II
Sale: ingredients needed to effect a sale.
Rights and liabilities of a seller, buyer.
Mortgage: ingredients needed to effect mortgage.
Types of mortgages
Rights and liabilities of mortgagor and mortgagee.
Lease: ingredients of a lease concept of a sub lease.
Rights and liabilities of lessor and lessee.
Lease a special study with reference to rent control
legislation.
Gift: ingredients of a gift and its role.
Rights and liabilities of Donor and Donee.
Exchange, actionable claims.
Difference between the above concepts.
Easements Act
Topics relating to license.
Difference between lease and
license.
Types of licenses
Rights and liabilities of licensor
and licensee.
How to terminate a license and
recover possession.
Books to be referred to
Transfer of property Act by Mulla
Transfer of property act by C.V.Subba Rao.
Lectures on transfer of property by justice
Shah.
Law relating to properties by Meggaray.
The transfer of property act AIR commentary.
Law of mortgages by S.P.Sen Gupta.
Law of easements by Kattiayar.
Registration Act by Mulla.
Stamp act by sanjeeva Rao.
Ancient India.
During the period of Moguls.
During the early period of British.
During the Later period of British.
In independent India.
Ancient India.
The properties were of two types. Like stavara and
jangama.
The modes of acquisition of properties were that of
from
(i) learning,
(ii) purchase,
(iii) mortgage,
(iv) by valour,
(v) through wife,
(vi) inheritance from ancestors,
(vii) succession,
In independent India.
1947
India Adaptation of Existing Indian laws
order.
1948.
India independence adaptation of
central Acts and ordinances order.
1950.
Adaptation of laws order 1950
1951.
Part B States (laws) Act 1951.
Since 1952 till 2002 the act were amended
several times during 1954,1956, 1959, 1963,
1964, 1970, 1976.
2002.
major amendment to section 106, and
53A were done
What is property.
Property is a right and interest a person has in respect of lands,
chattels or any thing seen or not seen to the exclusion of others.
The property is a generic term for all that a person has domain
over. It has an extensive application. While strictly speaking it
would mean only the right a person has in relation to some thing
or a domain over it. It cannot be held to be confined to a
material object.
Property signifies every species of property and it
comprehends all a mans worldly possession.
Some times the property may be owned by one person but yet
another may have a lease hold interest, an interest as a
mortgagee, an interest to collect rent, an interest to enjoy and
so on so forth.
In the modern days in contrast to the earlier period the property
has a very wide meaning. It covers various types of things or
rights.
The property should be given a liberal meaning. In fact it extends in respect
of various things which are found in a persons day to day life
Property can not remain in vacuum. Some one must be there to hold it.
What a property is
.Property
Types of Property
property
immovable
Movable
Property
.
property
Corporeal
that is which affects senses
Incorporeal
That which cannot be seen or handled
movable property
.
movable property
Intangible.
tangible
Property
.
property
intellectual
Non intellectual
Intellectual property
Trade mark
Copy right
Patent
Geographical indications
Industrial designs.
Lay outs
Integrated circuits.
Immovable property
a
non comprehensive definition.
Do you agree?
Immovable property
Transfer of property Act defines immovable
property to the effect that;
Immovable property does not include
1.standing timber,
2.growing crops or
3.grass.
What is a standing timber.
What is meant by growing crops.
What is meant by grass.
Whether the similar definition is adopted in other
laws.
Immovable property
T. P. Act 1882 sec Registration
3
Act.1908.
General clauses
Act.1897. Section 3(25)
Unless there is
any repugnancy
otherwise
Immovable
property does not
include
1.standing timber,
2.growing crops
or
3.grass.
Immovable
property shall
include land,
benefit to arise
out of land and
things attached
to earth or
permanently
fastened to any
thing attached to
earth.
Immovable
property includes
land, building,
hereditary
allowance, right
of way,
Profits a prendre.
Profits a prendre is a right vested in one person
to enter on to the land of another person to
collect the profits which arises from the land of
the another.
It is a right exercised one person on the land of
another to enjoy the profits which arise from the
land of another.
The profits a prendre is different from
easements, as in case of an easement a
person will have a right to enjoy on the land of
another without taking any profits from the land.
standing timber,
What is a timber,
What is a fruit bearing tree,
When could a fruit bearing tree be standing timber.
Whether all types of trees become a immovable property.
Note: whether a particular tree continues to be a standing
timber or not will depend on the intention of parties. If a party
wants to enjoy the benefits of a fruit bearing tree without cutting
them then it would not be a standing timber. On the other hand
if the parties intend to cut the said fruit bearing tree forth with
for the purposes of severing it from land then it would be a
standing timber to not to fall with in the category of Immovable
property under transfer of property act.
Profits a pendre concept with reference to trees.
Problem.1.
Government of Karnataka entrusts the work to Ashok Kini for the formation
of Nandi corridor road from Bangalore to Mysore by widening the existing
road.
Mr. Ashok kini notices that there are road side Mango and jackfruit trees to
the existing road.
He engages the services of Jacob Paul and Co. of Calcutta, who have
expertise knowledge in uprooting trees and transporting them to such of his
place for disposal to facilitate kini to form the road.
Jacob Paul and Co, insists to have a written registered agreement.
Therefore kini and Paul goes to the office of the sub registrar to have the
document registered as an agreement.
Sub registrar insists to pay stamp duty as there is a transfer of immovable
property.
What is the solution?
The trees though are fruit bearing trees yet the intention of the parties is to
cut and remove it. It is not for the purposes of enjoying the usufructs of the
tree. When once the trees are cut and removed they do not draw any
sustinance from soil. Hence they are not immovable property with in the
meaning if Transfer of property act. Here the intention of the parties are to
be taken in to account.
Problem.2.
Government of Karnataka entrusts the work to Ashok Kini for
taking care of cubbon park at Bangalore and maintain trees for
a period of 25 years. The park has 4000 trees of all types and
ages ranging from 1 to 35 years. The contract envisages that
kini could cut and remove the trees located in the park,
provided the said trees have a girth of 3 feet or the trees which
are of 30 years age.
Sub registrar insists to pay stamp duty as there is a transfer of
immovable property.
What is the solution?
The trees though are not fruit bearing trees yet the intention of
the parties is not to cut and remove it immediately but to wait till
such time the trees either will have a girth of 3 feet or is aged
30 years. Till the trees are cut and removed they do draw any
sustenance from soil. Hence they are immovable property with
in the meaning of Transfer of property act. Here the intention of
the parties are to be taken in to account.
Problem 3
Government of Karnataka entrusts the work to Ashok
Kini for taking care of cubbon park at Bangalore and
maintain it for a period of 25 years. The park has
mango and cashew trees. Kini entrusts the contract of
collecting the fruits for a period of 4 years to
Somashekara Alwa. Sub registrar insists to pay stamp
duty as there is a transfer of immovable property.
What is the solution?
The right of collecting fruits for a period of four years .
The trees to their existence draw sustenance from the
earth. Hence the right to collect fruits is a profit a
prendre and an immovable property with in the
meaning of Transfer of property act. Here the intention
of the parties are to be taken in to account.
Movable property
Not specifically defined in transfer of
property Act.
Includes standing timber, growing crop
and grass, fruit upon and juices in tree
and property of every other description
except immovable property. Sec.2(9) registration act.1908
Movable property includes growing crops.
.procedure code. 1908
Sec.2(9) civil
A jalkar right
Equity of redemption
Right to ferry
Right and interest of grove holder in grove
Right to slag and earth before separation from soil
Right to easement
Advertisement hoarding fixed on substantial manner on the land.
Hereditary office under Hindu law
Right to hold bazaar
Right to collect rent
Right to severe and collect tendu leaves
Right to collect lac, resin and gum from trees
Right to tap coconut and palm tree to collect toddy.
Right to catch fish from pond.
Collect coal from coal land.
Copy right
Royalty to the owner of the soil
Right to turn worship
Right to obtain specific performance.
Temporary right to reap produce from a land.
Collection of sludge from tank.
Interest of partners in a partnership business.
Right to recover mesne profit
Right to receive prasadam in a temple.
Right to receive compensation.
Court decree.
profits a prendre
The profits a prendre may be classified with
reference to the ownership and with reference
to the land
ownership
One person
claiming to
One person
the exclusion
of others known as claiming in common
Several profit With others known as
Profit in common
to the land
Profits
appurtenant
Profit appendant.
Profits in gross
Chilka lake fishing rights and to sell the said fish were
given to a party, Z. With the said party Z Ananda Behra
entered in to a contract. As per the said contract Ananda
was to do the fishing and selling work. The State of Orissa
enacted a law to abolish any estate given to others and said
the compensation would be paid to the person interested.
Ananda filed a claim petition. The same was opposed by
contending that at the most Ananda was a licensee and not a
person having valid title as the document containing clause
is against the provisions of section 54. The compensation
should be given to Z predecessor of the ananda. The
property being an immovable property registration was a
must.
Ananda contended that the said right is only a sale of goods.
The fishing right and carrying thereof is not a sale relating
to immovable property.
Attached to earth
Attached to earth means:Rooted in earth as in case of trees,
shrubs .
imbedded in the earth as in case of
buildings or walls
attached to what is so imbedded for the
permanent beneficial enjoyment of that
which it is attached
Fixtures
A movable otherwise becomes immovable
property if it is a fixture. Then whether all types
of movables would become immovable property
or is there any special features is an important
aspect. We have different principles regarding
this aspect in Indian and English law. This
question would arise especially when a theatre
or a drama hall is leased, or a house is sold with
certain fixtures regarding which the party puts
forth that he has not been given possession in
entirety but only in part.
Exception 2
with
reference to trade activity
Indian scenario
Illustration.
Amar inducts Baldwin, an advocate, to be the tenant of the a
hall. B puts up partition cabin in the said hall to have a proper
seating arrangements to the junior advocates and typist. While
vacating the premises of Amar, Baldwin is entitled to take the
partition which he had put up in the hall but he has to keep the
condition of the hall in the same condition in which it was given
to him by Amar.
In the event if Baldwin allows them to remain and Amar makes
use of the same, then he has to compensate to Baldwin the
costs of the material so used.
Here the tests to be applied is whether the said fixtures were
fixed with an intention to use the same as a part of the building
or otherwise is an important thing. If instead of a partition if a
photo is hung then it would not become an immovable property
and will have a characteristic feature of a movable property. In
that event the principle of these maxims would not apply.
Instrument
The transfer of property act defines the
instrument as to that of a non testamentary type
instruments
testamentary
Non testamentary
Testamentary
and
non testamentary instrument
Non testamentary instruments are such as sale deed, mortgage deed,
lease deed, gift deed, deed of exchange.
These are the deeds which will have effect forthwith after execution. The
effect of the document would not wait till the death of the person who
executes the document.
:Attestation:
The transfer of property act defines as to attested and
not attestation.
The meaning of the word attested has a specific
meaning it is in respect of an instrument.
The concept of attestation in Indian law and English
law differs.
The word attested was introduced in to the frame work
of t.p.act during 1929.
There was a conflict of views as to what an attestation
would mean earlier to 1929. In order to resolve the
said dispute the Act was amended.
In view of the amendment the view expressed by the
Courts in Shamu Patters case which held the field till
then became non applicable or not a good law. .
Illustration
Ramu signs a will at Bangalore and takes it to
Chennai and asks his friend shrikrishna to
attests it, shrikrishna being satisfied with the
signature of Ramu sings the instrument. Then
Ramu takes it to Mumbai and asks Brijesh to
attest it. Brijesh being satisfied with the
signature of Ramu sings the instrument.
There is a valid attestation as per Indian law
Problem
Ramu executes a will in favour of Brijesh, sham, and
seetha..
Brijesh and Muthaiah signs the instrument as an
attesting witness
Question whether the instrument is valid.
The instrument is valid as in favour of sham and
seetha but not against Brijesh.
Reason the attesting witness can not be a beneficiary
and in the event if the attesting witness is a beneficiary
then the attestation is good while he will not as a
beneficiary.
Problem 2
Ramu is supposed to have executed a gift deed in
favour of Brijesh, sham, and seetha..
jayant and Muthaiah signs the instrument as
witnesses. They put the signature to the said
document, as they were asked to do so by Hanuman
the father in law of Brijesh. Ramu was a stranger to
the said persons.
Question whether there is a valid attestation.
Answer No. because the requirement is that the
persons who signed as attesting witness should have
an intention to attest and they knew that the person
who had signed the instrument was Ramu. In the
absence of it the mere act of putting signature at the
instance of Hanuman will not be sufficient.
Notice
Implied
Or
constructive
Express
Or
actual
Willful
abstinence
registration
Actual
possession
Gross
negligence
Notice
To
agent
Notice.
.
notice.
constructive
Actual
Or
real
deemed
implied
CONSTRUCTIVE NOTICE
Constructive notice is based on a concept of equity.
nn
S has left his house and land to his sons by first wife and
appointed them as executors of his will. He left Rs.30000/ to his
sons of second wife, charged on the said property given to the
sons of the first wife. The sons of the first wife borrowed
Rs.52000/ from the bank and deposited title deeds of the house
and created an equitable mortgage, to secure loan. The will was
not among the documents of the title deeds produced to the
bank. Later the said sons of the first wife defaults in making
payment to the Bank. Bank brings an action to enforce the
mortgage and sell the property to realise the dues. The sons of
the second wife resists the said action.
Whether there is a constructive notice and willful abstention?
The bank ought to have made an enquiry to know as to how the
said sons of the first wife had got the title to the property then
they would have known about the existence of the will. If they
had known the existence of the will then they should have make
proper scrutiny to know the details as to who else had interest in
respect of the said property. The bank on knowing the fact that
the sons of second wife had interest could have taken proper
steps to safeguard their interest. In this case the bank has not
done that and has advanced the loan blindly. So they have the
constructive notice of the claims of the sons of the second wife.
Problem
A buys two properties such as B and C, from X, and leaves a
part of purchase money unpaid and sells the property B to Z.
A informs that when he purchased property B and C he
Problem 2
Amaresh Gupta borrows money to a tune of 7,00,000 from
Bank of Baroda on an equitable mortgage by giving his
shopping complex at Jayanagar as a security. The said
shopping complex contains 10 shops. Out of the said 10 shops
Amaresh Gupta sells 2 shops to Siddesh Gupta for 3,00,000
each. At the time of sale of those two shops Siddesh Gupta
asks Amaresh Gupta to show the original deeds in respect of
the shopping complex. Amaresh Gupta promises Siddesh
Gupta that he would produce it later as he had misplaced it. So
Siddesh Gupta scrutinises the certified copies and purchases
the shops. Subsequently Amaresh Gupta fails to produce the
originals. Siddesh Gupta did not continue his efforts to make
any further enquiry
Question whether conduct of Siddesh Gupta is hit by the
principles of Constructive Notice.
Answer: the conduct of Siddesh Gupta is effected by the
principle of constructive notice.
Gross negligence
Negligence is such an act where in a party fails
to take such care as a reasonable person
would take while performing his part of the duty.
Mere negligence or want of caution is not
sufficient to constitute a constructive notice.
The concept of gross negligence is once again
invented by the courts of equity to safe guard
the interest of the parties.
Gross negligence
What is a gross negligence depends on the facts of the
case.
Guilty of negligence would refer to a person of ordinary
prudence and not a person sitting on clap am omnibus.
Negligence would mean that a person who is bound to
do certain things fails to do the said act.
The distinction between willful abstention and gross
negligence is the existence of the mental advertence to
the consequence of an act in one case and absence of
advertence in other. In other words in case of willful
abstention there exists a mental advertence but in case
of gross negligence mental advertence would be
absent.
REGISTRATION AS A NOTICE
Some of the documents which require
compulsory registration should be looked in to.
If they are not looked in to then it would be a
constructive notice.
If the documents which do not require
compulsory registration is not looked in to then
it would not be a constructive notice.
Explanation 1 was added in 1929 in view of the
ruling of Tilakdhari lal case.
Compulsory registratable document is a
deemed notice.
What is registration
and
why is needed, what is the implication.
Certain properties need compulsory registration. They are sale
(subject to qualification as contemplated in section 54);
mortgage, gift, lease in case more than a year.
Registration is based on public policy to protect a third party.
Earlier to tilakdhari lal case there was a divergent view relating
to the principle of registration as a constructive notice. However
in 1921 the said controversy is settled.
Date of registration is important with reference to the notice.
Actual possession
When a person other than the transferor is in
possession, the intended transferee shall make
enquiry as to the person who is in possession of
the property. If no enquiry is made then the
transferee is deemed to have notice regarding
the transaction between the transferor and the
person in possession of the property.
The said notice can not be said to with
reference to the title of a third party but
specifically with reference to title of the person
who is in possession.
problem
Amarnath contracts to sell the house to Bhisan
Das for Rs.50,00,000. Bhisan Das pays
Rs.25,00,000. Amarnath inducts Bhishan Das in
to possession. Afterwards Amarnath sells the
property to chaitanya Mahaprabhu for
Rs.60,00,000./= chaitanya Mahaprabhu makes
no enquiry with Bhisan Das as to the said
property.
Whether the possession with bishan das is a
sufficient notice
Yes.
Problem 2
Achutananda shenoy the owner of a house at hat hill' Mangalore
wanted to sell it to venkata kamath and enters in to an agreement.
The said house was in possession of panduranga Shetty. Venkata
kamath visits the said house and meets panduranga Shetty and
makes an enquiry.
panduranga Shetty tells kamath that he is a tenant of Nityananda
Bhat of Kavoor.
Question. What is the relevancy of information gathered by
Venkata kamath. Whether venkata kamat is to take note of the
fact of the ownership of Nityananda Bhat.
Answer: where the tenant is in possession the constructive notice
shall have reference only to the title of tenant and not of his lessor.
Further it is only in respect of the person who is in possession of
the house and not others. However the high courts in India by
extending the principles of law of equity have opined that it could
constitute a constructive notice. Though the English law
contemplates that the information is not a constructive notice but
as per the judicial pronouncements in India it is a proper
constructive notice.
Transfer
Transfer
Voluntary Involuntary
Intervivos
Testamentary
Note
Transfer by operation of law, through a decree of court, gran
Are involuntary transfers.
2.Transfer through a will is a testamentary transfer.
3.Partition in a family is not a transfer
B
on transfer
gets the right
which
A
had
Types of transfer:
Transfers could be classified as
Transfer
Conditional transfer
conditional unconditional
absolute
partial
Parting or alienation
enjoyment
Conditional transfer
partial
absolute
precedent
Parting
Or
alienation
enjoyment
Money.
time
subsiquent
Vested
interest
Contingent
interest
Transfer of property
The transfer of property means an act by which.
1) a living person conveys property, that is in
present, or in future
2) to another or more living persons OR
3) To himself,
OR
4) To himself and one or more living persons
Note: living person includes company, association, or body of
individuals, incorporated or not
Transfer of property
Movable
Immovable
transfers under
T.P.Act is not exhaustive
transfers under
T.P.Act is not exhaustive
Through will:- will is a document which comes
after the demise of the person.
Charge:- is not a transfer of property for in
charge no right in rem is transferred, but only
a personal obligation is created.
Easement:- easement is a restriction one
enjoyment of ones property for the utilization
of another of his property. It is governed under
the provisions of Easements Act.
Future transfer or Property not in existence:- a
property which is not there in existence.
Auction sale: an auction conducted by the court the same would not amount to a
transfer, as it would more by operation of law.
Non living entities like idol,:- an idol though is a juristic person capable of holding
property, but it is not a living person. The living person is specifically explained in
the proviso to the section. This creates a legal fiction in respect of a living person
to cover a corporation or an association, therefore the said legal fiction can not be
extended to an idol which as a juristic person can hold a property but can not have
a transfer in its favour.
Problem 1
Xian e ping transfers certain properties to
Anthony Sylvester for life, then to Barrington for
life and thereafter to Cromwell.
Question: Whether there is a conveyance, and
if so of what nature.
Answer: there is a conveyance and it is in
present to Anthony Sylvester and in future to
Barrington and Cromwell. Barrington and
Cromwell get a vested interest.
Problem 2
Xian e ping transfers certain properties to
Anthony Sylvester for life with reminder to
Barrington if he should have attained the age of
21 at the time of Anthony Sylvesters death.
Question: Whether there is a conveyance and if
so of what nature.
Answer: there is a conveyance and it is in
present to Anthony Sylvester and in future to
Barrington. Barrington gets a contingent
interest.
Problem 2
Xian e ping transfers certain properties to Anthony
Sylvester for life with reminder to Barrington if he
should have attained the age of 21 at the time of
Anthony Sylvesters death. On the date of transfer he
is not having any property and intends to have a
property in case if he could win a jackpot at Derby
Race.
Question: Whether there is a conveyance and if so of
what nature.
Answer: there is no conveyance either of present or
future to Anthony Sylvester and to Barrington as on
the date of the deed Xian e ping had no property at all.
Property
Property is not defined in the act.
The property as used in the Act shall be understood in
its widest sense and not in a narrow sense. That is it
should be understood in a comprehensive manner as
Lord Langdale said, in Jones vs. skinner.
In a narrow sense it includes on corporeal property, but
in its wide comprehensive sense includes actionable
claim, annuity, copyright, all rights relating to physical
objects and so on.
When ever it is referred to as property then a person
shall have a right. The said right shall be of at present.
A person not having right in presenti cannot be said to
have any property.
The right may be a legal right or an equitable right.
Therefore it may be termed as a legal property or an
equitable property.
Or himself
Or himself was introduced by way of amendment of
1929.
Earlier to 1929 a person could transfer the property
either to another living person or persons or to himself
and another living person but not to himself.
To get over the difficulty of trusts being created with
trustee as the settlor and others as beneficiaries a
need arose to bring about an amendment to the
transfer of property Act vide section 5. therefore the
amendment was done to incorporate in section 5 the
phrase or himself.
This has facilitated to have the transfer of property to
partnership firm, trusts created with settlor as sole
trustee and so on.
1.
2.
spes scucessionis.
A person can transfer what he has and not what he
would get.
Spes scucessionis means a mere chance of getting a
property in near future.
It is more in the form of a speculation and not a
certainty to have a thing.
To effect a transfer the property shall be there, but in
case of a spes scucessionis the person will not have
either the property or the right in respect of it.
It is more an expectation to get some thing in near
future.
Example: Chance of a heir apparent succeeding to an
estate., Chance of relations obtaining a legacy,
spes scucessionis.
Illustration:
Problem.
Amarnath a rich land lord of Willington of Tamilnadu had four sons
namely kutti, chippi, appu and teva.
Amarnath acquired the properties on account of his efforts. He started
his life as a wood cutter and by shear efforts he be came rich.
Amarnath wanted to dispose his properties during life time and writes a
Will to the effect each of his son should get equal share in the
properties but kutti being the eldest son should be paid a sum of
Rs.2,00,000 extra in order to facilitate him to perform the last rites to
Amarnath and his wife in the event of their death during the life time of
Kutti.
After some time Amarnath bequeaths all his properties to Kanakamma
his wife and after her life time to the sons, as he felt that his sons may
squander the property and kanakamma may become a destitute.
Question what is the nature of the properties with reference to the said
sons kutti, chippi, appu and teva.
Answer:-The properties in respect of kutti, chippi, appu and teva is
only a chance to get and not with any vested right. So it is a spes
scuccessionis. Further kutti, chippi, appu and teva getting property
after the demise of the mother after the death of Amarnath is a chance
of a relation getting the property on the death if a kinsman.
Problem 2
Amarnath a rich land lord of Willington of Tamilnadu had four sons
namely kutti, chippi, appu and teva.
Amarnath acquired the properties on account of his efforts. He started
his life as a wood cutter and by shear efforts he be came rich.
Amarnath wanted to dispose his properties during life time and writes a
Will to the effect each of his son should get equal share in the
properties but kutti being the eldest son should be paid a sum of
Rs.2,00,000 extra in order to facilitate him to perform the last rites to
Amarnath and his wife in the event of their death during the life time of
Kutti.
After some time Amarnath bequeaths all his properties to Kanakamma
his wife and there after the death of Kanakamma to the sons equally.
During the life time of Amarnath, Kutti gifts a house situated walnut
street to Pitambari as she had shown love and affection to him. Some
years later kutti dies of heart attack. Pitambari puts forth a claim in
respect of the house situated at walnut street.
Question what is the nature of right Pitambari got in respect of the
house.
Answer:-The properties in respect of kutti, was only a chance to get
and not with any vested right. So it is a spes scuccessionis. The transfer
made by him in favour of Pitambari was without any right. Hence the
transfer is bad.
Chance of a Mohammedan
succeeding as a heir is only a spes
succession.
In Mohammedan law there is no concept of acquiring
right by birth, and a person gets the property only after
the death. So the relatives can not have any property
during the life time of a person.
A a Mohammedan has a wife and 4 sons 3 brothers,
mother, and 2 uncles. Each of them though they are
sharers and residuary they would not get any right till
the death of A. Hence the right of the said relatives
are a spes succession.
The right of re-entry could be sought for by the owner and not a
stranger.
Restricted interests
Illustration:- Achutan is the owner of a land namely
Rohini. He gives the said land to Balaam batti for
enjoyment, that is so long the said Balaam batti is
alive and there after to the children of Balaam batti.
The property is transferred to Balaam batti for life
time.
Balaam batti is a life interest holder while the children
of Balaam batti are the absolute owners. Balaam
batti can not transfer the property so given to him
for enjoyment during his life time.
Restricted interests
Person having a limited enjoyment.
In respect of a property a person may have a limited
interest would mean that the said person/s instead
of having the right of ownership may have right to
take use fruits.
Illustration:- Land Rohini is gifted to Lord Balaji by
karimalappa. The title in respect of the land vests
with Lord Balaji. The Archak of the temple of Balaji,
takes the fruits and flowers grown in the said land.
Just because Archak of the temple takes the fruits
and flowers he would not become an owner. While
the archak will have a right to receive any of the
fruits and flowers he can not sell the property which
stands in the name of Lord Balaji. The right of
archak is of a restricted nature. It is a restricted
interest.
Transfer of pensions
Pension payable to a person for having rendered civil
or military service can not be transferred.
Pension is a periodical payment of money by the
Government to a government official for his past
services.
Grant of land in lieu of periodical pension could be
transferred but not the pension.
So long the amount is not paid and is in the hands of
the Government it retains the character of a pension,
but once it is paid it will not par take the character of a
pension and could be attached or be transferred or
sold.
a.
b.
c.
d.
e.
f.
Clause (i).
A tenant having an untransferable right of
occupancy.
Farmer of an estate in respect of which
default has been made in payment of
Revenue,
Lessee of an estate under the management
of the court of wards.
Can not transfer the interest as tenant, farmer,
or a lessee.
Transfer of property
The transfer of property means an act by which.
1) a living person conveys property, that is in
present, or in future
2) to another or more living persons OR
3) To himself,
OR
4) To himself and one or more living persons
Note: living person includes company, association, or body of
individuals, incorporated or not
Transfer of property
Movable
Immovable
Transfer
Property,
persons
immovable
movable
Transferee
Transferor.
Operation of transfer
A.
B.
C.
D.
E.
It is an inclusive description.
With reference to land are such as easements, rents, profits
accruing after transfer.
With reference to a building or a house easements, rent there
of after transfer, locks and keys, bars and doors, windows
and all other things for permanent use there with.
Immovable properties
land
Buildings
Illustration
illustration
Anju a owner of vacant site. He had permitted
his wife sujatha to run a car garage. Some time
later anju wanted to sell away the property.
Anju enters in to a contract with venkat to sell his
site. Accordingly the site is sold by Anju to
venkat and in the sale deed it is stated that the
site is sold to venkat.
Question whether the title in respect of the
garage also would pass on to venkat.
The sale deed is silent about garage and
specifies only about the site, hence garage
would not pass on to venkat.
Illustration.
Anju a owner of vacant site. He had permitted
his wife sujatha to run a car garage. Some time
later anju wanted to sell away the property.
Anju enters in to a contract with venkat to sell his
site. Accordingly the site is sold by Anju to venkat
and in the sale deed it is stated that the including
the garage the site is sold to venkat.
Question whether the title in respect of the garage
also would pass on to venkat.
The sale deed is not silent about garage and
specifies that the site along with super structure is
given, hence garage would pass on to venkat.
illustration
Anju a owner of vacant site. He had dug a well in the
site. Some time later anju wanted to sell away the
property.
Anju enters in to a contract with venkat to sell his site.
Accordingly the site is sold by Anju to venkat and in
the sale deed it is stated that the site is sold to venkat.
Question whether the title in respect of the well also
would pass on to venkat.
The sale deed though is silent about well and specifies
only about the site, the well also goes along with the
site as it is totally embedded in the site and can not be
removed. hence well would pass on to venkat.
illustration
Anju a owner of vacant site having 12 mango trees.
Some time later anju wanted to sell away the property.
Anju enters in to a contract with venkat to sell his site.
Accordingly the site is sold by Anju to venkat and in
the sale deed it is stated that the site is sold to venkat.
Question whether the title in respect of the mango
trees and fruits borne there on also would pass on to
venkat.
The sale deed is silent about mango trees though it
specifies only about the site, but by very nature of
things the tree is attached to the land it has to go to
venkat from the date of sale. hence mango tree would
pass on to venkat.
Illustration.
Anju a owner of house with a tenant. Some time later
anju wanted to sell away the property.
Anju enters in to a contract with venkat to sell his site.
Accordingly the site is sold by Anju to venkat and in
the sale deed it is stated that the house is sold to
venkat.
Question whether the title in respect of the rental claim
from the date of sale also would pass on to venkat.
The sale deed though is silent about future rental
claims and specifies only about the house, the said
claim would go as a part of incident and the tenant has
to pay the rent so long he continues to be in
occupation as a tenant. hence rental claim from the
date of sale would pass on to venkat.
problem.
Somaraju the owner of property that is houses bearing no.6/1
and 6/2 wanted to sell the house.
In between house bearing 6/1 and 6/2 there exists a passage of
3 feet width and 100 feet length.
Anantha rao intends to buy house no.6/2 from Somaraju.
Somaraju agrees to sell the house. Thus a sale deed is
executed. In the said sale deed Anantha rao is permitted to use
the passage.
Somaraju later sells the house no 6/1 to rabindra nayak. The
sale deed contains a clause that rabindra nayak and Anantha
rao shall use the passage in common with out causing
obstruction to each other.
Anantha rao intends to sell the right in respect of passage to
Shama rao Vittal a money lender.
Question? What is the nature of right Somaraju, Anantha rao
and rabindra nayak had in respect of the passage from time to
time.
Could Anantha rao sell the said right to passage to Shama rao
Vittal. What is the reason.
Transfer
Writing
oral
Where writing
is not a rule
Where writing
is a rule
What is writing
The transfer of property Act has not
defined the word writing.
The writing shall be construed as defined
in General clauses Act.Section 3(65) of
the said Act defines Writing to mean,
Writing shall be construed as including
reference to printing, lithography,
photography and other mode of
representing or reproducing words in
visible form.
Types of transfer:
Transfers could be classified as
Transfer
Conditional transfer
conditional unconditional
absolute
partial
Parting or alienation
enjoyment
Conditional transfer
partial
absolute
precedent
Parting
Or
alienation
enjoyment
Money.
time
subsequent
Vested
interest
Contingent
interest
Unborn child
Sec 13,
Conditional transfer
Perpetuity
Sec 14-17
Enjoyment Alenation
Insolvency
Sec
10
Sec 11
Sec 12
precedent
enjoyment
Parting
Or
alienation
subsequent
Money.
time
absolutely restraining
Absolute Restraint
condition or limitation absolutely restraining
alienation.
the condition
or the restrain is
void,
Section 10
Section 10 to 14 of T. P. Act corresponds with the provisions of
succession Act.
To impose a total restriction or restraint on transfer of property is bad.
The public policy is to keep the property in circulation and not out of
circulation. A total restraint would virtually keep the property out of
circulation and therefore the said restriction can not be accepted.
A contract opposed to public policy can not be enforced. Therefore a
condition of an absolute nature to restrain a person from alienating
property is bad as opposed to public policy. Such a condition can not
be enforced. The condition would be void, while the contract would
be valid.
This principle is not confined to English system of jurisprudence but
is recognized also by the Hindu and Mohammedan systems of
jurisprudence.
Section 10
Section 10 prohibits absolute transfer and
not a partial prohibition or restraint.
Absolutely shall be construed in a
reasonable manner and not in an
unreasonable way.
The court has to look at the substance
and not the form of condition.
Absolute restrain
.
Time
price
Person.
:Illustration:
Hayavadana rao gives a gift of his property to
Shamachari, with a condition that Shamachari
shall not sell the property.
Shamachari sells the property to Jasmine Marry.
Question: what is the effect of the transaction
between Shamachari and Jasmine Marry with
reference to the property.
Answer:-The restraint is of an absolute nature in
time. The condition imposed on Shamachari is
bad as hit by section 10 of T.P.Act.. Hence it it
void. The sale by Shamachari to Jasmine Marry
is valid.
Chitra, vivek, roja, and many more persons were the slum
dwellers occupying houses constructed unauthorisedly. The said
houses had been built on the property belonged to government.
Vasundara Raje as the chief minister agrees to regularise their
possession and gives an assurance that they would not be
evicted.
In persuance to the assurance the possession of the slum
dwellers as the tresspassers is regularised with a condition that
they shall not alienate the respective houses for a period of 10
years.
Chitra wanted money after about three years. So she sold the
property in favour Dhanu.
Question: whether the restriction is valid. Whether order of
regularisation is good or bad. Whether the sale in favour of
Dhanu is valid. Indicate reasons.
Answer: the restriction is not absolute but a partial in nature for a
period of 10 years. Therefore section 10 is not violated. The
order of regularisation is good as it is not hit by section 10. the
sale in favour of dhanu is hit by the principle of section 23 of
indian contract act and is abintio void.
Unborn child
Sec 13
Conditional transfer
Perpetuity
Sec 14-17
Alienation
Enjoyment
Sec 10 Insolvency
Sec 12
Sec 11
precedent
enjoyment
Parting
Or
alienation
subsequent
Money.
time
Conditional transfer
partial
absolute
precedent
Parting
Or
alienation
enjoyment
Money.
time
subsiquent
Vested
interest
Contingent
interest
as
Section 11
When ever a property is transferred absolutely it means that it
is transferred with all its incidents.
Enjoyment of the property is one of the incident.
The restriction on enjoyment of property in contrast to the
restriction on alienation is dealt with in section 11.
Any such restriction on enjoyment of the property if is imposed
then the said condition imposing restriction is bad.
The transferee could use the property as if there was no such
restriction.
Corresponding law in Indian succession Act is section 138.
Section 11 would not be attracted unless there is an absolute
interest is created by the transferor in favour of the transferee.
Section 11 applies in respect of both movable and immovable
properties. It does not make any distinction.
Section 11 does not apply in respect of a lease, as in case of
lease only a limited interest of enjoyment is created in favour of
a transferee. In case of a lease the lessee is bound by all
express and implied covenants.
BASED ON THE PRINCIPLE LAID DOWN IN Panna Lal Hazara Vs Phulmony Hazara. AIR 1987
CAL 368
Problems:
Achutan a owner of roshanara tea estate sold the
same to baradwaj.
Achutan asked baradwaj to not to grow coffee and
silver oak in that estate.
Whether the restriction imposed is good and valid?.
Answer the transfer is of an absolute nature being a
sale. The buyer is at liberty to use the property as he
desire, so long it is not against the public policy or any
law in force at that region regarding the cultivation to
be done. In the case on hand the situation is to the
effect that baradwaj shall not grow coffee and silver
oak. This restriction on enjoyment is bad.
Baradwaj can grow coffee and silver oak as per his
desire and the restriction does not bind him.
Think tank
Silver screen ganesh a famous film actor buys from
rohit a bonglow. Rohit on the date of sale enters in
to an agreement that keeping in view of the
situation that sale consideration is not sufficient to
meet the needs of him and also as he can not
manage himself silver screen ganesh shall take
care of him till such time rohits son who is at
England returns to India to take care of his father.
DOES IT HAVE ANY IMPACT ON SALE AND IF SO
WHAT IS THE SITUATION.
What is your advice?
problem
Amaresh shetty had a cluster of 10 rooms under a
common roof and a vacant site with in the precincts
there of.
Peddanaik, belinayak and devaraja sheregara buys
each of the rooms where in they were staying as
paying guests as amaresh shetty indicated his desire
that he had an intention to sell the property either in
whole or in part.
While selling the rooms amaresh shetty imposes a
condition that the respective persons who had
purchased the room shall not pull down the room
unless all the occupants of the building agrees.
Pedda naik wanted to pull down his room and remodel
it by constructing it to have a first floor.
Can he do so?
Note: for this case one has to read section 31, 32 and 11 of T. P. Act. Try to read this case in the
background of the judgment of supreme court in indu kakker vs Haryana state industrial
development corporation and the ruling of the Delhi high court .
Section
10 and 11
Section 12.
Corresponding law section in succession Act 1925 is
not there. However in the succession Act of 1865 vide
section 107 there was a corresponding provision.
Forfeiture on insolvency then the condition is bad.
Forfeiture in the event of sale or alienation the transfer
ceases the condition is bad.
The tenor of the bar under this section would not be
applicable if it is in the interest of the lessor or any
person claiming under him
This applies mainly in case of transactions which are
akin to gift.
In case of sale or mortgage generally this contingency
would not arise.
Section 12
Condition subsequent.
The condition is intended by the transferor to
have effect of defeating the interest created.
The object of this section is to encourage free
alienation and circulation.
This is another limb of the principle law favors
circulation and not accumulations
The condition would be bad and not the
transfer.
The clause of forfeiture shall be construed
strictly.
Problems.
Amarnath bequeaths the property to his eldest son
Appu. After the death of Appu the property shall go to
the eldest son Choma for life and after the death of
Choma the proper shall go to Ramu, the eldest son of
Choma.
On the day of death of Amarnath Appu had no son and
choma was born subsequently.
Question: what is the nature of interest of each one of
them.
The bequest to choma is not an absolute interest and
is of a liited estate. A limited estate can not be there in
favour a child unborn. So the life interst in favour of
choma fails as it is void.
Section 13
Section 15
Section 15
Example:
Transfer to sons sons,
transfer to sons daughters,
transfer to widows,
transfer to brothers,
transfer to sisters,
Transfer to grand children,
Transfer to Nephews,
Transfer to nieces.
Where the name of transferee is specifically named
then it would not amount to a class transfer but would
constitute individual transfer.
Impact of section 15
If on transfer of property, an interest is created;
The said interest creation shall be in favour of a
class of person as against an individual;
Failure of interest with regard to some on account
of the impact of section 13,
Then such interest fails as regards the said person
and not as against the whole class.
Note: Earlier to 1929 the law was that the
interest would fail even against the entire
class, but in view of the amendment the
situation has changed and now it is only
against the said person and not against the
whole class is concerned.
Accumulations.
Accumulation is permissible to a limited extent.
Excessive Accumulations, are the directions to
be for long time than that is allowed by the
section.
Section 11 speaks about the voidness
regarding the repugnancy when there is an
absolute creation of interest on transfer of
property.
Section 17speaks about the voidness
regarding the accumulation for which there
need not be an absolute transfer of property
Accumulation in
English law and Indian law
Life or lives of the
transferor or transferors.
Illustration.
Amarnath transfers to choma property in 1920.
The gift deed contains a clause that the income
derived from the property shall be accumulated.
Amarnath dies 20 years after the date of said
transfer.
Question till what time the restriction regarding
accumulation of the income runs.
Answer: the restriction regarding the
accumulation with reference to the date is taken
it is 18 years. With reference to the life of
transferor is taken it would be 20 years.
Taking the longer of the said two dates the date
should be taken as to 1940.
Illustration.
Amarnath transfers to choma property in 1920.
The gift deed contains a clause that the income
derived from the property shall be accumulated.
Amarnath dies 10 years after the date of said transfer.
Question till what time the restriction regarding
accumulation of the income runs.
Answer: the restriction regarding the accumulation
with reference to the date is taken it is 18 years or the
life of the transferor. With reference to the life of
transferor is taken it would be 10 years, that means
the accumulation could be done till 1930. if the date
from 18 years is taken then it would be till 1938.
Taking the longer of the said two dates the date should
be taken as to 1938.
Illustration.
Amarnath transfers to choma property in 1920.
The gift deed contains a clause that the income
derived from the property shall be accumulated.
The said accumulation should commence from 1930.
Question till what time the restriction regarding
accumulation of the income runs.
Answer: the accumulation as per deed is taken then it
would be 1938. from the date mentioned the deed is
taken then it would he 1948 law contemplates that the
accumulation could be there for 18 years from the
date of transfer and any period in excess is void.
There fore the period from the date of transfer is 18
years. Any period after 1938 is void.
Accumulation
As per the Hindu law texts the accumulation for
the benefit of Donee was not permitted. The old
Hindu law had considered that the accumulation
of income goes along with capital.
Under Mohammedan law the gift takes effect
forthwith absolutely and therefore the question
imposing any condition would not arise.
Imposition of any condition would be repugnant
to the very basis of foundation of Mohammedan
law. As per Mohammedan law a direction for
accumulation in a gift is invalid. The section 17
is in consonance with the principle reflected in
section 17 main part
Perpetuity.
Perpetuity means continuous or unending transaction.
It is tying up property for an indefinite period.
When there is a transfer of property from generation
after generation then it is known as perpetuity.
Jarman says in his book on law of Wills: that the
perpetuity in the primary sense of word is disposition
which makes a property unalienable for an indefinite
period
Lewis says that the perpetuity is a future limitation
whether executory or by way of remainder and of
either real or personal property which is not to vest
until after expiration of or will not necessarily vest with
in the period fixed and prescribed by law for the
creation of the future interests. The object of the rule
against perpetuity is to restrain the creation of future
conditional interest in the property.
Section 14
Section 114 of Indian succession Act is analogous to
this section.
The Indian law relating to rule against perpetuity and
English law has a slight difference.
English law envisages that the property could be tied
up during a life or lives of any existing persons and for
21 years after the death of the survivor irrespective of
minority of any person.
Indian law envisages that the property could be tied up
during a life or lives of any existing persons and for
minority of the person to whom the interest is created
is to belong.
Section 14
Salient features of In
respect of future
interests.
1.
2.
3.
4.
5.
Section 14
Section 15
Section 18
Section
17
Section 16
Section 13
Section 15
Transfer in perpetuity
Private
purposes
Prohibited
And is subject to
Rule in sec.14,16 17.
Public
Purposes.
Permitted
vide
section 15 and 18
Section 15 and 18
Section 15 deals with class transfer and if the interest
in respect of some of the members fails the transfer to
the class will not fail.
Section 18 envisages where the transfer is for the
benefit of the general public.
The object of both the provisions are similar.
They do not have any conflict.
They are to promote a same cause.
Therefore the framers of law have made provision for
14, 16 and 17 in section 18 as one group while they
have not brought section 13 in to the said group,
though section 13 will have an impact on section
15,16 and 17.
Section 14
Section 18
Section 17
Madras high court held: The dedication did hit the rule against perpetuity as
the dedication of the property was on the descendents
of the donor in certain specified lines and at all
material times the income was to be divided amongst
the trustees.
The payment of fee for four children of the community
is not hit by the provisions of rule against perpetuity
and rule under section 18 as it is for the benefit of the
community.
The erection of statute of the father, celebrating the
birth anniversary were not for the benefit of public.
The clause in the deed providing the tuition fee for four
deserving students could be separated and to that
effect trust is valid.
AIR.1976 Mad.102
Interests
It is a term of generic nature having a wide
meaning.
With reference to the property one can say that
to what an extent a person has got direct
involvement with reference to the property.
The interest may be that of a absolute owner,
mortgagor having much concern about the
money one has advanced to another with
reference to the security value, lessee to enjoy
the property as against the payment of a fixed
premium payable once in a month or even an
year.
Interests
Vested. sec 19
forthwith
In terms
specifying
that it is to
take effect forthwith
On happening
of an event
which must happen
Contingent
Sec 21
Specified
uncertain
event happen
Specified
uncertain
event
not happen
Vested interest.
On transfer of a property,
or
Contingent interest.
On transfer of a property,
1. an interest is created in favour of one person by
another,
to take effect only on specified uncertain event
happens, or
Analogous provisions
Section 19 of Transfer of property Act
corresponds with section 119 of Indian
Succession Act.
Section 21 of Transfer of property Act
corresponds with section 120 of Indian
Succession Act.
The provisions of section 19 and 21 are not
applicable in respect of Mohammedans.
Prior to 1929, the provisions of section 19 and
21 were not applicable to Hindus, but now the
said provisions are applicable to Hindus.
Duefeild vs.Duefeild.
1829(4) E.R.1334
Lord chief justice Best said:
in construing devices, that all estates are to
beholden to be vested, except estates in the
devise of which the condition precedent to the
vesting is so clearly expressed that the court
cannot treat them vested, without deciding in
opposition to the terms of the will. If there be a
least doubt advantage is to be taken of
circumstances occasioning that doubt and what
seems to make a condition is holden to have
only the effect of postponing the right of
possession.
Kokilambal vs N.Raman
The trial court and high court had held that vested right was
created in favour of B and therefore the Bs brother had
inherited the property. The revocation by A subsequently as
bad as she had no authority
Issues before supreme court were:1. Whether the nature of interest created in favour of B was a
vested interest or a contingent interest.
2. If it were to be vested interest then Bs brother would inheret
on the death of B, and A had no authority to cancel the
settlement to create an interest in favour of D and her
husband.
3. If it were to be a contingent interest then Bs brother would not
get any property as B would have got the property after the
death of A.
Supreme court held that A had retained some right in the
property for herself and had not relinquished the right
completely.
She had not created any absolute right in favour of B during
her life time. Therefore the right of B was not heritable to the
brother of B. thus the court dismissed the claim
Transfers
with
Condition
Condition
capable of
performance
Conditions
Not
Capable of
performance
Conditional transfers
with reference to nature.
.
Courts regard
As immoral
Or
Against public policy
Conditions
Not
Capable of
performance
Involving or implying
injury to another or
Property of another
impossibility
If
Permitted
defeats
any other law
Forbidden
by law
fraudulent
Conditional transfer
Condition
precedent
Permitted
Condition
subsequent.
Non permitted
permitted
Conditional
limitation.
Non permitted
Condition precedent
A condition which is needed to be followed to
have the transfer effected.
If the said condition is not fulfilled then the
transfer will not take place.
If a condition is of such nature which can not be
performed or forbidden by law or is considered
as against public policy or immoral by the court,
the transfer itself would be void.
If a condition is imposed of such a nature that
its performance is not other wise hit by above
clause but is performed substantially then the
same is sufficient to say that it has been
fulfilled.
:Condition subsequent:
A condition subsequent is one on happening of
an event the interest once vested is either
determined or shifted from the grantee to
another person.
The principle is reflected in section 28 of the
transfer of property act.
This provision of transfer of property act has
corresponding provision in section 131 of
Indian succession Act.
As per section 28 the transfer of interest
created to accrue to the transferee with a
condition super added.
Amarnath had two wives. His first wife had a son. The
second wife was not having any son.
Amarnath settled property to his second wife for life.
He had made provision further that the property shall
go to the son of second wife if a son is born to her.
Further a provision was made that in case if no son is
born to the second wife, then the property shall go to
the son of the first wife.
Question:- What is the nature of interests of the sons
of the first wife and what is the consequence which
follows on account of the birth of a son to the second
wife.
Answer:- the nature of interest of the son of the first
wife is a vested interest liable to be divested on
happening of the event. The said event is of an
uncertain nature. That is the birth of a son to the
second wife of Amarnath.
The another condition is to the effect that she should obtain the consent of the
executors of the will. Further it is stipulated that if Hema dies before the fund
becomes payable on the condition mentioned then the property shall go to Yamini as
a gift.
The executor dies before Hema could attain the age of 21 years.
Question: what is the position of Hema and Yamini with reference to the property.
Answer: The property would go to Hema absolutely and not to Yamini.
What is the reason: the property goes to Hema as already it had vested in her on the
death of Amaranth, to dispossess the said vesting the compliance of strict nature is
needed.
Conditional limitation.
Conditional limitation is one where there would be a condition
that the transfer which had been effected once, would cease to
have effect on happening of an event the transfer ceases and
the same would be in favour of another.
Conditional limitation is a kind of condition subsequent, but all
condition subsequent are not conditional limitation.
In case of conditional limitation it limits the transfer on
happening of a condition.
A combined reading of section 27,29, and 30 would indicate the
concept of conditional transfer.
Under conditional transfer, transfer would be coupled with a
transfer to another person on failure of a prior disposition.
Sec, 129 of the Succession Act deals with aspect.
Conditional limitation is a condition of defeasance, that is it
terminates the interest of one and vests with another.
condition subsequent.
The
will not vest in grantee
The estate will vest in grantee
estate
.
unless the condition is fully performed. immediately and remains so until the
condition is broken.
Does not require strict compliance
but a substantial compliance is
sufficient.
B
on transfer
gets the right
which
A
had
Property
I OWNED BY
TRANSFEROR
Gives
option
Price
Of
property II
Property
IIOWNED BY
REFRACTED TRANSFEREE
REFRACTED TRANSEREE
may accept
or
may not accept
DISAPPOINTED TRANSFEREE
.
Transferor
Property
I OWNED BY
TRANSFEROR
REFRACTED TRANSEREE
Property
IIOWNED BY
REFRACTED TRANSFEREE
DISAPPOINTED TRANSFEREE
.
Transferor
Property
I OWNED BY
TRANSFEROR
REFRACTED TRANSEREE
Value of
property
No II
Property
IIOWNED BY
REFRACTED TRANSFEREE
DISAPPOINTED TRANSFEREE
Elections
Section 35.
This principle has got its roots in
English law though there is a
difference between the principles as
applied in English Courts and Indian
Courts.
Section 35 of Transfer of Property Act
enumerates the said principles
relating to Elections
Elections
The basis of this doctrine is based on the rule
that what one intends and expresses would be
acted upon.
Allegans contraria non est audeiendus not to
blow hot and coldwith reference to the
transction.
Qui septet commodum, sentire debet et
onushe who derives the advantage shall
take the burden there of.
This was the rule in early part of 18 th century.
This is on the principle that he who volunteers
to take a thing has to do things which he has to
do under the instrument.
Elections
Modern requirement is
* intention on the part of testator/transferor to
transfer certain object or thing.
* the property shall not be of the transferor.
* There should be certain benefit being given
to the true owner of the property.
Elections
five Essential ingredients regarding application
1. The transferor should dispose of the property which
he has no right to transfer.
2. The transferor should confer a benefit out of his own
property on the owner of the property which he profess
to dispose of
3. Disposition of the property and he conferment of a
benefit on its owner should be parts of the same
transaction
4. The transferee put to an election should have an
independent proprietary right in the property dealt with
to his detriment by the transferor.
5. The beneficiarys proprietary right should be such that
the disposition of the instrument can be perfected if he
waives his objection.
Ingredients of section 35
Property transferred must belong to another.
Transferor must profess to transfer such property
which does not belong to him.
Confers benefits on the owner of the property which
he profess to transfer.
Such a transfer should form a part of the same
transaction.
If the transfer is not a part of the same transaction,
the section 35 of T.P.Act is not applicable.
Primafacie every person is presumed to have
transferred only what is his and not what belongs to
others. Profess would mean purports, claims or
acknowledges. Therefore a person claims, or
acknowledges or purports to transfer a property
which is not his then this doctrine would apply.
Section 35
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
gratuitous
Death of
transferor
before the
election
Non gratuitous or
for consideration.
Incapacity of
transferor
before the
election
Note;
Mode of election.
The owner has to choose one out of two inconsistent
rights.
The choice may be either express or by implied
conduct.
Where it is by the express words then it would be
conclusive.
Where it is by the implied conduct then it would be
understood by means of the conduct of the parties.
There is of an express nature there is no specific
mode. It may be through a letter, telegram, spoken
words.
In case of an implied nature the clause 5,6,and 7 of
section 35 lays down the norm.
DISABILITY
IF THE OWNER OF THE PROPERTY ON
ACCOUNT OF ANY DISBILITY can not express
the option as to whether the benefit is accepted
or not then the period needed to express the
option would get extended till such period the
said disability is removed. Or till such period
that a competent person could exercise the
option.
Indian Law
Forfeiture.
Apportionment.
Section 36 and 37 deals with the principle of
apportionment.
The rule laid down under these sections are
almost similar to the principle laid down in
section 8 of the act.
What is apportionment?
Apportionment means distribution of a fund
among the claimants, when there are more
number of claimants than one.
The apportionment may be from the point of
time or may be from the point of extent.
Apportionment
Apportion means to divide or partition or assign
apportionment
Apportion
Time
section 36
Estate section
37
Apportionment
It should accrue due from day to day but payable on the appointed day.
Section 36
Applies in respect of
Rent
Annuities
Pensions
Dividends
And other periodical payments in the
nature of income.
apportionment
Illustration: Ananda is the owner of a house in
occupation of Raman. The said Raman is a tenant on
a monthly rent of 15ooo/. The said rent should be
paid on 5th day of every month as per the English
calendar. On 20th of may 2007 Anand enters in to a
contract to sell the house to rajoo. The parties enter in
to a contract. The said contract would be silent about
the payment of rent. In pursuant to the same on 10 th
June 2007 a sale deed is executed by Ananda in
favour of rajoo. Raman continues to stay at the house.
In this case the buyer would be entitled to receive rent
from Raman from 10th of June onwards. Ananda would
be entitled to 1/3 rent while rajoo to 2/3 rent.
This is a case regarding the apportionment on the
basis of time.
Apportionment
Illustration: Ananda is the owner of a house in
occupation of Raman. The said Raman is a tenant
on a monthly rent of 15ooo/. The said rent should be
paid on 5th day of every month as per the English
calendar. On 20th of may 2007 Anand enters in to a
contract to sell half the portion of the house to rajoo.
A sale deed is executed by Ananda in favour of
rajoo. Raman continues to stay at the house in spite
of the notice of sale.
In this case the buyer would be entitled to receive rent
from Raman in respect of portion bought by him.
Ananda would be entitled to 1/2 rent while rajoo to
1/2 rent.
This is a case regarding the apportionment on the basis
of estate.
Conflict
of rights
Conflict of rights
The conflict of rights would arise when two or more persons
claim similar right in respect of an object or a thing.
Conflict of rights
Conflict of rights
priority
Limited power
To transfer
Power to revoke
Holding
improvement
out
Rt of persons
Holding
maintenance
Transfer of
Rt under
Insurance
policy
Lis
Fraudulent
pendence
transfer
Payment
To
Holders
With
defective
title
Section 38 is a deeming
provision regarding the
existence of a
circumstance if a recital is
made that the transferee
has made enquiry.
Conclusion
The overall effect of section 38 of the Act could be summarized
to the effect that a bonafide purchaser who has put forth efforts
to know the details regarding the property at the time of the sale
shall be protected. The degree of enquiry should not be of a
very high degree or standard as the alienee would not be
knowing all the facts. What the alienee has to show is that he
made bonafide inquiry and ascertained the facts. If that is done
the fiction as per law would go in favour of the transferee. The
transferee alienee need not prove to the last straw that the
condition which was needed had happened. In fact the sprit of
section 38 recognizes the principle as laid down in Hanooman
persads case. So what is needed is that of a reasonable
precautions and not a precaution and not a precaution which
would be taken by a person sitting on a clap ham omnibus.
Section 40
Burden of obligation imposing restriction of use
of land.
or
Obligation annexed to ownership but not
amounting to interest or easement
Then such a right or an obligation may be enforced
against the transferee if the (a) the transferee with
notice thereof, (b) gratuitous transferee
Exception; the clause would not apply in respect of a
transferee who has paid the consideration and had no
notice of the said right or obligation.
Note: section 40 has no application to the Rights
relating to easements.
Section 40
General rule as per section 11 of the act is
that no restriction repugnant to the interest
created could be imposed regarding the
use of property. If such a restriction is
imposed then the same is void.
However part 2 of section 11 envisages
when the restriction could be imposed. If
such a restriction is imposed then how the
same should be enforced against the third
party transferee who acquires the right.
Section 40
problem
Amarnath is a owner of a house and a land adjacent to it.
Amarnath sold the land to Bhima. At that time he imposed a condition that the later
shall spend money in repairing and maintaining the drain of his house passing
through the land of Bhima.
Later Bhima sold the property to Chitra.
Question:
1.
What is the characteristic feature of this covenant
2.
whether Bhima is bound by the said restriction?
3.
Could house owner Amarnath or his assignee are entitled to enforce it against
Bhima.
4.
What is the extent of obligation of Chitra.
Proposition.
A. if Chitra had notice.
B. If Chitra had no notice.
5. What is the right of the person in case if Amarnath or his assignee sells the
property to Mohan.
(1) if case if Mohan had notice.
(2) In case if Mohan had no notice.
6.
What is the right of the person in case if Amarnath or his assignee gifts the property
to Mohan.
Proposition
(I) if Mohan had notice.
(II) If Mohan had no notice.
Holding out.
Section 41 and 43 of t.p.act covers the field of holding
out. Ramanatha Ayer in the law lexicon defines
holding out would mean, holding a women to be the
wife of another would mean that the perpetrated
husband by conduct leads the world to believe that
parties are living and associating themselves together
as husband and wife.
What is holding out doctrine?
Basically holding out means that a person gives to the
world at large certain thing when in reality it is not so.
On account of the conduct the people at large would
believe the imaginary as the real, while real it self
would not be known at all.
Holding out
Extend this principle in respect of the properties:The real owner of the property either expressly
or impliedly by conduct and language conducts
to lead the world at large to believe that another
person is the owner of the property. In such a
situation, the person who is exposed to the
world at large would be known as ostensible
owner. This part of the world is in fact partly
defined in the section itself, as with the consent
of, express or implied, the person interested in
the property.
Section 41
This is based on the principle of equity. One should not
be permitted to blow hot and cold from the same
trumpet.
When an ostensible owner transfers the property to a
transferee for consideration, the transaction is not
voidable at the instance of the real owner subsequently.
The transaction is not voidable applies only in such
cases where the transferee before the transfer in his
favour has made proper inquiry, and has acted in a
good faith.
Ingredients of section 41 are that the transferee should
have taken a reasonable care to ascertain that the
transferor had power to make the transfer. He has
acted in a good faith.
Lachman Vs Kalicharan.1873(19)W.R.
192
Sir Barnes peacock said:- it appears to
their lordships that there was a
misrepresentation by the father in following
the property to be taken by wife under a
deed of sale, representing the purchase
money was her stridden and in all his acts,
both public and private during the life time
that his wife is the owner of the property.
After that representation the heirs of the
father cannot be permitted to say contrary
An agent or a Manager.
Menial servant in occupation of a property.
Mortgagor with limited interest of ownership.
Trustee or a manager of an idol since lord
cannot give consent.
Donor who has not retained the power to
revoke.
Guardian or a person having a fiduciary
character.
Action sale.
Section 43.
Second limb of principle of holding out.
This involves the principle of feeding the grant
by estoppels.
This is based on the principle of equity.
One who makes other to do a thing believing on
the words can not be allowed to retrieve the
words to the disadvantage of the another.
Transfer is void
Transfer is voidable
Section 41 and 43
Illustrations section 43
Janhavi a Hindu was the wife of Muralidhara. Muralidhara had
certain properties at city of jamatmal. Muralidhara was not to
be seen since five years. Janhavi, in order to eke out her lively
hood mortgaged the property to Mohan. As on the date of
mortgage the transaction is invalid as the presumption under
law cannot be drawn as to the death of Muralidhara.
Mohan files a suit in respect of the said mortgaged property.
The said suit was filed seven years after the disappearance of
Muralidhara.
As per law Muralidhara could be treated as dead. So janhavi
would be treated as a widow of Muralidhara.
Mortgage as on the date of suit is valid as the where about of
Muralidhara was not known and Janhavi had acquired the right
of her husband.
Illustrations section 43
Ramachandra, Arjuna, and Kiran were brothers
being the sons of Kiraatharjuna. They had equal
share in respect of the palaces situated at Sandur.
Ramachandra, and Arjuna creates a lease in
respect of that property in favour of Armuga, to
the exclusion of , Kiran. Some time later Kiran
dies bequeathing his right in favour of
Ramachandra and Arjun. Armugas title as a
lessee in respect of whole properties would be
valid, as they get it perfected.
Section 43
The claim of the first charge-holder over a property shall prevail over the
claim of second charge-holderWhen both are to be realised out of the
mortgagors propertyThe first charge-holder will have to be paid first. ICICI
Bank Ltd. Vs. SIDCO Leathers Ltd., 2006 AIR SCW 2361
Priority.
A Executes a sale deed in favour of B on
1.1.1999 in respect of his house Roshanara.
On 10.3.1999 A executes a sale deed in favour
of C in respect of the same house
Roshanara.
The sale deed executed by A in favour of B is
prior in the point of time.
The sale deed executed by A in favour of B is in
respect of the same immovable property.
In view of the rule of priority the sale deed
executed in favour of B would prevail over the
sale deed executed in favour of C.
Section 49.
The marginal note is considered as not correct.
Under this section the transferor is to pay and not the insurance
company. The extent of liability of the transferor would be to the
extent of what the transferor would get or has received.
Impact of section 8 of t. p. act in the event of a transfer and the
loss or damage by fire can not generally be considered as a
legal incident under section 8. therefore a special provision is
made to safeguard the interest.
The transferor has to apply with the insurance company and the
amount so paid by the insurance company is to be paid to the
transferee.
In case if the amount is to be spent for the reinstating the
property then to such an extent the claim could be made by the
transferor and the said amount so paid is to be paid to the
transferee.
In case of a sale this provision makes the vendor a trustee in
respect of the amount payable or paid by the insurance
company, while the ultimate beneficiary would be the transferee.
Illustrations
A has a right to land and other property. He lets
it to B and then transfers to C. B not knowing
the transfer pays rent to A. A also accepts the
same with out a demur. Here the B is protected.
C can not claim the a said amount once again.
A has a right to land and other property. He lets
it to B and then transfers to C. B knowing the
transfer pays rent to A. A also accepts the same
with out a demur. Here the B is not protected. C
can claim the a said amount once again as the
action of B was not in good faith.
Illustrations
A has a right to land and other property. He
lets it to B and then transfers to C. B pays rent
to D an agent of A. D also accepts the same
with out a demur. Here the B is protected. C
can not claim the a said amount once again.
A has a right to land and other property. He
lets it to B and then transfers to C. B pays rent
to D a total stranger .D also accepts the same
with out a demur. Here the B is not protected.
C can claim the a said amount once again.
Question
A leased his property to B, and there after mortgaged
it to C. As per the terms of the mortgage C was
entitled to recover the rent from B. C after the
execution of deed informed that he was entitled to
recover the rent from B in pursuance to the deed. In
the meanwhile the property was sold to D in
execution of a decree against the mortgagor. D gave
notice to B that mortgage loan to C is paid and the
rent should be paid to him. B without making any
enquiry regarding the statement of D make payment
to D. in reality the mortgage loan to C is not cleared.
How do you resolve the dispute.
answer:- the B had not acted in a good faith, so he is
not entitled to any protection.
Lis pendense.
Lis pendense means a suit under consideration of any
court of law. Lis means a litigation.
Ut lite pendente nihil innovetur = Nothing new to be
introduced to a pending litigation or proceeding.
Section 52 of Transfer of Property Act.
This rule affects the purchaser, because the law does
not allow the litigants during the pendency of a suit to
do any thing which would defeat the final result.
The main object of this rule is to protect the rights and
interests of parties pending adjudication.
This Rule is based on equity, good conscience and
justice.
This is not only based on rule of equity but is a rule of
law.
Lis pendense.
Based not on doctrine of notice but based on doctrine
of expediency.
Transfer should have been made by one of the party to the suit.
If it is not done by one of the parties to the suit the doctrine is
not applicable.
Rule does not annul alienation but subservient to the decision
of the court.
This doctrine has a very long standing in England but gained
much recognition during 1857 in Bellany Vs Sabine.
The court in Bellany Vs Sabine observed that where a litigation
is pending between parties as to the rights to a particular
estate, the necessities of mankind require that the courts
decisions shall be binding, not only on the litigants but also
those who derive title under them by alienations made pending
the suit where the alienee had or had not the notice.
This doctrine was applied in India even before the T.P.Act was
enacted.
Transaction is not void but voidable,
Section 52
There shall be a suit pending in a competent
jurisdiction having authority in India or established
beyond the limits of India by the Central Government.
The suit or proceedings shall not be collusive.
The litigation shall be in respect of some immovable
property.
There shall be a transfer of or otherwise dealing with
the property in dispute by any party to the litigation.
Transfer must affect the rights of other party that may
ultimately accrue under the terms of the decree.
The object of this section is to maintain status quo.
The impact of this rule is not violative of the rights
under Article 19 or now the Article 300-A.
Section 52
1.
2.
3.
4.
5.
6.
7.
Lis pendense.
The stress is on pendente lite and it refers to both
the parties to a litigation.
The party can not alienate the subject matter of
the litigation in any manner to undermine the
effect of the decree which is going to be passed.
Any alienation made during the pendency of a
litigation would be hit by the principle of lis
pendense.
Lis pendense
Lis pendense principle is reflected in section
52 of the transfer of property Act.
The court shall have jurisdiction to try the suit
or proceedings.
An appeal is a continuation of original
proceedings so the principle of lis pendense
applies even in respect of transactions taken
place during an appeal. However where the
leave to appeal is pending the lis will not be
there.
Section 52
Transfer of property pending suit relating there
to.
The necessary ingredients needed to attract
the principle of lis pendense.
1. Pendency of a case
2. In any Court having authority within the limits
of India.
3. Court established beyond such limits by the
Central Government.
4. Suit or proceeding not collusive and
5. In which any right to immoveable property is
directly and specifically in question.
Lis pendense.
The high court of Allahabad in Abdul Aziz Vs District
Judge AIR 1994 Allahabad 167 said that This
provision comes in to existence from the point of
institution of the suit and continues to survive till the
satisfaction of the decree.
The high court of Kerala said that the object and
purpose of section 52 is not to annul all voluntary
transactions effected by parties to a suit or proceeding
but only to render it subservient to the rights of the
parties thereto under a decree or order which may be
made in the suit or proceeding. Its effect is to make the
decree passed in the suit binding the transferee if he
happens to be a third party person even if he is not a
party to the suit or proceedings. Therefore the transfer
would be valid subject however to the result of the suit.
K.A.Khader Vs R.J.Madathil. AIR 1994 Kerala 122.
lis pendense
Illustrations: A mortgaged the property to B. B instituted a suit and
obtained a decree of foreclosure. Before the decree
was made absolute, the A sold the property to C. The
decree for foreclosure was made absolute and was
held that C was not entitled to redeem.
Question whether the lis pendense applies or not?
Answer: If C had purchased the property before
institution of the suit then the principle of lis pendense
would not have applied. But, the sale transaction took
place during the pendency of the suit. Hence the C
was bound by the judgment and decree. Principle of lis
pendense applies.
Purushotam Vs Chabeda lal ILR 29 All 76
Amrit lal Jalan Vs Haryana urban development Authority. AIR 1999 P & H 140.
Commencement of suit
A suit is commenced by filing a plaint or
presentation of the plaint under section
15 of the code of civil procedure.
Appeal and execution are considered
as the continuation of a suit.
Fraudulent transfers
Fraud goes to the root of the matter and law does not
encourage fraudulent transactions.
Law favours honesty and discourages fraud.
Transfer of an immovable property made to defeat or
delay the claim of the creditors of the transferor.
The transfers are voidable at the option of the Creditor
so defeated or delayed.
Preference to one creditor the transaction is not voidable
but against a group of creditors but the Calcutta High
court has held in U.O.I. Vs. R.P.Debi that if there is
only a single creditor then transfer to delay or defeat
could be invoked.
Transfer
The transfer referred to in section would be with
reference to the transfers binding between the parties
but voidable in the circumstances narrated in section
53.
The transfer would be valid until it is set aside.
The document made to delay or defeat the claims of
the creditors would be binding on the executant and
other persons claiming under him.
The said transfers shall not be confused with that of
benami transactions.
The principle of the section 53 applies even in respect
of an award or decree though for the purpose of section
2(d) the decree is not a transfer.
Problems.
A obtained a decree against B. B in order to
defeat the claim of A, decree holder transferred
the property of an immovable nature to C by
way of gift.
A obtained a decree against B. B in the
meanwhile sold the property for a consideration
to C who purchased the property in good faith.
Can A succeed against B.
A obtained a decree against B. in order to
defeat the decree holders claim B transferred
the property to his wife in satisfaction of debt
due to her. Can the Decree holder impeach the
transfer.
Part performance
Doctrine of part performance is also known as equity of part
performance.
If a person takes possession of an immovable property on the
basis of a contract of sale and has either performed or is willing to
perform his part of contract then he can not be ejected from the
property on the ground that the sale was unregistered and the
legal title has not been transferred to him.
The principle of part performance dates back to 1677.
To mitigate the hardship caused on account of section 4 of the
statute of frauds the concept of part performance emerged as a
remedy at the hands of the equity courts.
This doctrine traces its origin to Maddison vs Alderson 1883 A.C
467.in this case Lord Selbourne said that in a suit of part
performance, the defendant is really charged upon the equity
resulting from the acts done in execution of a contract and not
upon the contract itself. If such equities were excluded then the
injustice which the Statute could not have thought of would follow.
Part performance
Indian counter part in Kurri Veera Reddi vs Kurri Bapi Reddi
1906 Mad 336 Madras High court held that the principle of Part
performance does not apply in India, but the Privy council in
1914 in Md.Musa Vs Aghore Kumar Ganguly applied the
principle of equity, good conscience and justice to mitigate the
hard ship caused to the parties. In that case the court held that
the compromise deed though is unregistered but it was I
writing and therefore it can not be repudiated.
Arif Vs Jadunath the Privy Council however took a different turn
by stating that the principle of part performance do not apply to
India as the provisions of Indian Registration Act can not be bye
passed.
Again in 1919 in Mian Pir Baux Vs Sardar Mohammed the privy
council held that the principle of part performance can not be
applied in India as there is an express statutory provision.
These controversies necessitated to amend T.P.Act I 1929 to
introduce section 53 A.
Walsh vs Lonsdale
This is a case of 1882.
L agreed in writing to grant lease for seven years a mill to W.
The rent agreed was payable once in a quarter, but one year
rent payable in advance if demanded.
W got the possession of the property without any lease deed
being executed and the quarterly rent being paid.
L demanded from W one year rent, but W refused to pay the
said amount.
W filed a suit for injunction and damages for illegal distress on
the ground that he was a tenant on year to year basis and not
liable to pay any advance.
The court did not agree with W, and on the other hand held that
the suit needs to be held in favour of L, that a tenant who
entered the possession and enjoyed the possession is
prevented by equity from taking advantage of the lease deed
being not executed.
In view of Arif and Mian case as decided by the P.C. the ruling
of Walsh is not applicable in India.
Oral agreement is
sufficient in England
Problem no.1.
A and B agreed that property x as owned by A should
be leased to B. B was already in possession. On the
basis of the agreement B built a house. Subsequently
A sued B and sought for an order of eviction.
Question: whether the principle of part performance
could be applied?
Answer: what is needed is not a formal lease deed
but even an agreement is sufficient. The said
agreement shall be in a position to convey the actual
intent which the parties had intended. If the
agreement had not been reduced in to writing then
section 53A would not come to the rescue of the
defendant.
Amendment of 2001
with reference to section 53A
The transfer of property Act and the Registration Act were
amended in 2001
Unregistered document is now withdrawn for the purpose of
section 53A.
This came in to effect from 24.9.2001
The amending act omitted the words contracts though required
to be registered has not been registered. Similarly the
amending act amended section 17 and 49 of the registration
Act.
Section 17(1A) of the Registration Act envisages that the
document containing a a contract to transfer for consideration
any i.p for the purposes of section 53A shall be registered and if
they have been effected after 24.9.2001and if the document is
not registered then the document shall have no effect for the
purposes of section 53A.
Section 32A requires that every person presenting the
document shall affix his pass port size photo and finger print to
the document.
sale
Sale is a transfer of ownership for consideration.
The consideration may be
paid or
promised or
Part paid and part promised.
Sale may be in respect of a
Tangible immovable property
Intangible immovable property.
The person who sells is a seller while the person who buys is a
buyer.
The essential elements of a sale are
The parties.
Subject matter
Transfer or conveyance as contemplated under section 55
Price or Consideration.
Mohammedans;
Yes.
Hindus.
Yes.
Christians
Yes.
Pareses.
Yes.
In the case of Sunil Kumar Jain v. Kishan A.I.R
1995 S.C. 1891, it has been held by the
Supreme Court that an agreement for sale of
land does not confer title and, therefore, the
purchaser claiming to be in possession of the
land is not entitled to compensation
Sale
Gift
Exchange
Price present
No
price/compensation
Compensation.
Sale is a
transfer of
property for
consideration
Gift is a
transfer of
property for no
consideration.
Exchange is a transfer
of property for mutual
transfer of ownership of
one thing for the
ownership of another.
Section 54
Section 122
Section 118
Covers immovable
properties and if it
is in respect of
movables then
sale of goods act
applies.
Covers immovable
properties and if it
is in respect of
movables then sale
of goods act
applies
Rights.
Benefits of increments.
55(6)( a)
sale
Movable
Immovable
Registration not
compulsory
Tangible
Intangible
Less than
Rs.100/=
Rs.100/= &
More than
Registration
compulsory
Gift
Immediate effect
Will
Gift.
Movable property
Immovable property
Registration
not
compulsory
Delivery
Of
property
Delivery
And
acceptance compulsory
Registration
compulsory
Gift
By a
minor
To a
minor
Could be
Accepted through a
guardian
By a
Person
Of
unsound mind
To a
Person
Of
unsound mind
Gift
Valid gifts
Void gifts
Onerous gifts
Gifts
as per
section 127
Onerous gifts
No
However if the gift is in the form of two or more separate
transfer to same person of several things the donee could
accept one of them and refuse to accept the other, although the
former may be beneficial and later as not beneficial.
Universal Donee.
While section 127 is based on Qui sensit
commodum debet et sentire onus, the section
128 is based on the principle that if the donor has
given to the donee all his properties then the
donee would take not only the benefits but also
the liabilities.
The donee can not say he wants all the benefits
and not the liabilities.
This is based more on the principle of
approbation and reprobation.
This is more based on the principle that one who
wants to have benefit shall be ready to have the
liabilities also.
Mortgage
What is a mortgage
Parties to a mortgage.
Types of mortgage.
Mortgage in Indian scenario.
How to create a mortgage.
Rights and liabilities of mortgagor
Rights and liabilities of mortgagee
What is redemption.
What is a foreclosure.
Limitation regarding mortgage.
What is a mortgage
Section 58 of transfer of property act defines as to what a
mortgage is.
Basically mortgage is a transaction where the immovable
property would be given as a security to raise the loan or for
the borrow of the money.
If a movable property is given as a security to borrow money
then the same would not fall under the category of mortgage
and on the other hand would fall under the category of pledge.
Mortgage is transfer of interest being creation of a security in
respect of the property. It is not a sale where the property is
transferred lock stock and barrel to the transferee.
The mortgage differs basically from a lease, as in case of
lease the interest transferred is that of enjoyment of the
property as against a rent or premium.
Parties to a mortgage.
Mortgagor is a person who gives the property
as a security. That is transferor is known as a
mortgagor.
Mortgagee is a person who advances the
money to take the property as a security. That
is a transferee is a mortgagee.
The property which is given as a security is
mortgage property.
The money paid by the transferee to transferor,
that is from the mortgagee to the mortgagor, is
the mortgage money.
Once a mortgage always a mortgage.
Mortgage
Mortgagee.
Mortgagor
Mortgage money
Mortgage property
Security.
Types of Mortgage.
Simple mortgage
Equitable mortgage or mortgage by deposit of title
deeds.
Usfructiory mortgage.
Mortgage with conditional sale
Possessoiry mortgage.
Anomalous mortgage.
New dimension is with reference to that of
reversionary mortgage.
Lease
Essential elements of a lease are: The parties.
Subject matter i.e. a specified immovable
property.
The demise or a partial transfer, (word demise
is not used in T. P. Act but is barrowed from
English law which is based on the Latin phrase
demitto)
Term or period.
The consideration or rent.
Indian Scenario
Not different from what Lord Denning
said.
Section 2 of contract Act regarding a
contract.
Section 108Need to have parties
lessor and lessee.
Section 111(d) rule of merger.
Types of leases.
.
agricultural
Lease
Manufacturing
general
Periodic
Or
temporary
perpetual
Commercial
monthly
Yearly.
Non-commercial
Monthly tenancy
A tenancy from month to month.
It may be for a specific period of months or may not be
so.
The characteristic feature is payment of rent from
month to month.
Subject to be terminated with fifteen days notice.
If it is not for the purposes of agricultural or
manufacturing purposes then the tenancy by default is
by month to month, if there is no other agreement.
It may be as per English calendar or any other
calendar as fixed between the parties.
Word month shall be understood as given in the
general clauses Act as the T.P. Act has not defined it.
Manufacturing purposes
This phrase is used in a general and popular manner
and not with any technical definition.
If the main or substantial purpose is for Manufacture
then it is to be treated as the Manufacturing purpose.
If the work is not for manufacturing purpose but if it is
only of an incidental nature to the manufacture then
the lease is not for a manufacturing purpose.
The tests for manufacturing purposes are
1.certain commodity must be produced.
2 process of production involve labour or machinery.
3 end product which comes out after manufacture shall
be a complete one and shall have a different name
and should be put in to different use. That is the
commodity should be so transformed to loose its
original character.
Issue
Whether mere processing itself may be construed to be manufactured. On
this, they cited a passage quoted in the permanent edition of Words and
Phrases volume 26 from an American judgment. The citation which has
assumed tremendous import in all disputes pertaining to manufacture in
central excise since then, (being frequently cited by either side to disputes)
runs thus:
Manufacture implies a change, but every change is not manufacture; and yet
every Change of an article is the result of treatment, labour and
manipulation. But something more is necessary and there must be a
transformation; a new and different article must emerge, having a distinctive
name, character or use.
Held On this reasoning, the Supreme Court observed in the D.C.M. case
that mere processing of the basic oils did not tantamount to manufacture of
VNE Oils, since on the basis of detailed examination of evidence, it was held
that for VNE Oil popularly marketed as refined oil, the essential ingredient
was that they were deodorized. On the contrary, in the cases before them,
though substantial processes of purification of the basic oils had taken
place, still they were not deodorized, before being converted into Vanaspati.
Hence, the learned Judges observed that there had been no transformation
bringing in new name, character or use, and hence there was no
manufacture as such.
Problem
Ram manohar had taken a property on rent. Jagannatha
filed a suit for eviction. Ram manohar contended that he is
carrying on manufacturing purposes and the notice of
termination was not proper.
Question: What is required to be shown by us to prove that
the tenancy was for manufacturing purpose?
A. The tests for determining if a lease is for manufacturing
purpose are
(1) that it must be proved that a certain commodity was
produced,
(2) that the process of production must involve either labour
or machinery,
(3) that the end product which comes into existence after the
manufacturing process is complete, should have a different
name and should be put to a different use. In other words the
commodity so transformed as to lose its original character.
Quit notice
Yearly tenancy ie agricultural or manufacture purpose shall be
terminable with a notice of six months.
Monthly tenancy shall be terminable with a notice of fifteen
days.
Notice shall be in writing.
Notice shall be signed by or on behalf of person giving it.
Should have sent by post to the party who is intended to be
bound by it, or
Tendered or delivered personally to such party or to one of his
family member or servants at the residence if tender or delivery
is not possible., or
By affixture on the conspicuous part of the property.
The period shall commence from the date of receipt of notice.
The notice is not invalid merely on the ground that the period
mentioned in the notice falls short of the period specified in sub
section 1 of section 106.
1 Accretions
2 Destructions
3 Repairs.
4.Payments made on behalf of lessor.
5.Fixtures.
6.Crops.
7.Assignment.
8.Lessees duty to disclose
9.obligation to pay rent.
10.user
11.errection of the building.
12.Restoration of possession.
Accretions
This principle is applicable more in respect of
agricultural lands and the property situated by the side
of river, sea and so on.
The land gradually or imperceptibly accreted would
form a part of the lease.
It may be due to the natural means or may even due
to an artificial means.
Natural means may be due to floods, and other
vagaries of nature.
Artificial means may be due to acquiring title,
encroachment, grant to the owner of the land.
The lessee holds the leasehold property during the
term with a proportionate increment in rent.
This right is available for a lessee and not a licensee.
Destructions
If due to fire, tempest, or flood, or violence of any army or of a
mob or irresistible force any part of the leasehold property is
wholly destroyed or rendered substantially and permanently
unfit for the purposes for which it was let the lease shall be at
the option of the lessee shall be void. If the said injury or
damage has occurred on account of the conduct of lessee then
he shall not be entitled to the benefit.
The destruction of the premises is due to the act of lessor then
it can not be said to be due to the act of God.
If the property is not destroyed or substantially or permanently
unfit, then this clause under section 108 clause (e) will not come
in to play.
The clause (e) gives an option to the lessee to avoid the lease
by notice.
Generally this clause applies to the situations such as lease in
respect of coffee plants, godowns, buildings.
This clause does not apply in respect of situations where a
building is let out and the same is damaged due to an
earthquake as the building becomes unfit for human habitation.
Repairs.
This is subject to contractual aspect in case of a contract.
This is subject to statute in case of a statutory tenant.
The lessor in the absence of a contract or statute is not under
an obligation to carry out the repair.
In fact clause (m) of section 108, imposes an obligation on the
lessee to keep the premises in a proper condition and return it
to the lessor in the same condition in which it was given.
In case of an express covenant in the lease deed to carry on
the repair by the lessor and if the lessor fails to carry out the
repair, then the lessee cannot terminate the lease but on the
other hand insist the lessor to carryout the repair. In case if the
lessor in spite of notice fails to carry out the repair then the
lessee could get the repair work carried out at his expense and
claim the same from lessor either by deducting the same in rent
or premium or may institute a separate case.
A covenant by tenant that he would pay rent without any
deductions does not exclude the lessees right to claim
reimbursement of the amount spent by him on account of the
failure of the lessor to carryout the repair.
Fixtures.
This is a lessees right to take away the fixtures which he had
fixed at the premises for the better enjoyment.
The lessee while doing so shall not cause any damage to the
property which had been leased to him.
If the contract between the lessor and lessee envisages that the
lessee shall not be entitled to take the fixtures with him then he
can not take away the said fixtures.
If any condition is imposed to allow the fixtures to the lessor,
then the said conditions shall be construed strictly.
What is a fixture depends on the situation and a hard and fast
rule can not be drawn in this aspect.
The fixtures if are of such nature that they can not be removed
and if the contract has provided any term to the effect that the
lessor has to make good of the value, then the lessee would be
entitled to the value. However the lessee can not compel the
lessor to pay the value if the said fixture is not fixed as per the
request of the lessor.
Crops.
This clause applies in respect of lease of
uncertain duration terminated by any means
except the fault of lessee or the legal
representatives of a lessee.
The lessee is entitled to all crops grown by him.
He can take the crops and utilize.
The clause is subject to the agreement if any
between the lessor and lessee.
The right given under this clause is almost
similar to the right conferred under section 51
to a bona fide transferee.
Assignment.
Subject to the contract the lessee is bound to disclose to the
lessor any fact as to the nature of the interest which the lessee
is about to take and which the lessor is not aware.
Subject to the contract the lessee is bound to disclose to the
lessor any fact as to the extent of the interest which the lessee
is about to take and which the lessor is not aware.
If the contract forbids any assignment being made about the
nature or extent of interest then the lessee can not make such
an assignment.
The assignment may be in the form of sub lease, mortgage or
sale.
If the contract prohibits the assignment in any form then the
lessee can not make any assignment. If an assignment is made
then the lessor could get rid of the lessee by determining the
lease.
User
The lessee shall use the property as a
reasonable prudent person.
The lessee shall use the premises for the
purpose it was leased.
Use and its purpose depends on the facts of the
case. There can not be a hard and fast rule to
have any specific meaning.
Change of user needs to be looked in to in the
background of the property and premises.
User includes non user.
Restoration of possession.
On expiration of the lease period the lessee is
bound to put the lessor or his legal
representative in to the possession of the
property leased out.
Lessor cannot impose any terms and conditions
to the lessee when the possession is handed
over.
If the lessee has abandoned the property without
validly delivering the possession then the lessor
can claim not only damages but also the rent till
such time the possession is recovered as per
law.
Restoration to one of the co-owner in the
absence of the contract is a restoration.
1.
2.
Determination of lease.
The tenancy is basically a contract. Under this the right of
enjoyment of an immovable property is given by one person to
another. The determination of lease speaks about the manner
in which the contract of lease comes to an end, and how the
lessor or the land lord would get back the property which had
been given for the purposes of enjoyment.
The said determination may be as per contract or other wise.
They could be categorized broadly as under.
Efflux of time.
On happening of a condition.
Express surrender.
Merger.
Mutual agreement.
Implied surrender.
Forfeiture.
On expiration of notice of termination.
As contemplated in section 111 of T.P.Act.
Efflux of time
On happening of a condition.
Instead of any specific period is fixed as to the lease period if
happening of an event is stipulated then on happening of the
said event the lease expires.
Example.
A enters in to a lease with B in respect of a shop that B could
enjoy the tenancy so long he is alive and there after his death
the lessor shall get the possession back. The lease is to the life
time of B. on the happening of the event of death of B the lease
comes to an end. The death is a condition precedent to
determine the lease.
A enters in to a lease with B in respect of a shop that B and his
heirs could enjoy the tenancy so long he is doing business as a
paint dealer, and if not the lessor shall get the possession back.
The lease is till such time the B and his heirs does the business
as a paint dealer. on the happening of the event of ceasing to
be a paint dealer the lease comes to an end. The dealership in
paint is a condition precedent to determine the lease.
Express surrender
The lessee by letter or any other mode of
communication if he intimates that he intends to
give up the lease and deliver the possession of
the leasehold property then it would mean that
the lease would be surrendered by express
action.
The express surrender would take effect
forthwith.
A surrender of lease hold right in favour of the
lessor may even by means of an agreement.
On surrendering the leasehold right the lessee
need not pay the rent in future.
Implied surrender.
Implied surrender may be on account of the conduct
of the parties or due to the operation of law.
The same by the conduct of parties would mean that
the lessee has relinquished the possession.
The implied possession by relinquishment would
mean that the lessee yielding up of possession and
the lessor taking the possession.
The operation of law invariably would mean that when
the lessee even during the subsistence of the lease
enters in to a fresh lease with the lessor. In such an
event the lease is surrendered impliedly.
Merger
This takes place due to the lower rights getting
merged with a higher rights.
If the contract or agreement specifically provides
while entering to a mortgage then right of would be
as it is till the mortgage expires and there after it
revives. If no such agreement is there as a general
rule the right of the lessee would merge with the
right of a mortgagee in possession. When a lessee
purchases the leasehold property the right of a
tenancy gets merged with that of a buyer.
The doctrine of merger is statutorily recognized in
India.
Forfeiture.
Clause g of section 111 deals with that of forfeiture.
When the lessee breaks any of the express terms or
conditions, which gives a right of re-entry to the lessor.
Lessor renounces the character and setting up the title
in a third party or claiming the title for himself.
When the lessee has been adjudicated as an
insolvent.
When an event of forfeiture occurs, whether the
lessee is liable to be ejected or can he claim the relief
against the ejectment, and if so when is envisaged in
section 114 and 114A of transfer of property act.
These relieves are of equitable in nature. These
provisions were introduced by may of amendment to
law in 1929.
To have the relief, the lessee on hearing of a suit being filed against
him/her,
1.
2.
Shall pay the interest to the lessor for having caused the delay.
3.
4.
In the event if the lessee complies with the above stated conditions then
the court can not pass a decree of ejectment against the lessee and on
the other hand shall hold that the lessee shall continue to hold the
property as if there is no forfeiture.
Note: this section affords protection to the tenant against forfeiture, this is
an equitable remedy extended in favour of a lessee.
Yes.
The forfeiture could be waived.
Section 112 of the transfer of property Act contemplates as to
when a forfeiture could be waived.
The said situation may arise when the lessor is aware of the
fact that the lease has forfeited, by
1. acceptance of rent. OR
2. Distress for such rent. OR
3. The lessor exhibiting any such other act to treat the lease
subsisting.
Note:- When the rent is accepted after the institution of
the suit for ejectment then it can not be said that
there is a waiver.
If the rent is accepted under protest then there is no
waiver.
Holding over:
If the lessee after determination of the lease pays to the lessor
or to his representatives the rent and if they accept the said rent
then the lessee is said to be in possession of the property not
as a trespasser but as a person holding over.
He holds on to the property by way of implied contract on
account of the lessor or his representative accepting the rent.
Depending on the nature of the lease the lessee or his
representatives would hold over the property.
If the lease is a monthly lease then the holding over would be
on a monthly tenancy basis.
If the lease is of a manufacturing purposes then the holding
over would be for the year.
The person who is in occupation as holding over against the
assent of the lessor is known as tenant at sufferance.
tenant at sufferance
He continues to be in
possession with the consent
of lessor.
He continues to be in
possession with out the consent
of lessor
It is heritable.
Illustration.
Illustration.
Question:
1. whether is it sustainable.
2. If not sustainable then what is the status of Bheemasena.
The said person is having the right as a yearly lessee as it is a farm land.
Note this principle applies even in respect of an under lessee.
Mortgage.
A mortgage is the transfer of an
interest
in
specific
immovable
property for the purpose of securing the
payment of money advanced or to be
advanced by way of loan , an existing or
future debt, or the performance of an
engagement which may give rise to a pecuniary
liability.
The one who creates a mortgage is known as
mortgagor, while the one in whose favour it is
made is a mortgagee. The property is the
mortgaged property. The money is known as
mortgage money.
Sale is a transfer of
property for consideration
Section 58
Section 54
Mortgage.
Age old phenomena.
Existed in ancient India as adhi. No distinction between
movable and immovable. In Mohammedan law the concept of
mortgage was there and it was known as bye-bil-wafa. This
could be translated as a sale with promise
Mortgage was considered as a pledge in ancient system of law.
Roman law the earliest type was known as fiducia which was a
conditional conveyance. The property would have been
forfeited for non payment of the debt irrespective of value.
This was followed by pignus. In this there was a transfer not of
ownership but of possession with out the concept of forfeiture
for non payment of debt.
Hypothecea is a last stage in the development
regarding
mortgages in Roman law.
Vivum vadium=creditor taking profits towards principle and
interest, mortuum vadium= creditor taking profits towards
interest only.
The present day mortgage is more a contribution of the
development of equity.
Mortgage.
The concept of mortgage when compared to the
earlier time is not so rigid and could be said more
liberal.
It is more soft towards the mortgagor.
Modern economic market is more based on the
mortgages and hypothecations.
Mortgages while are in respect of the immovable
properties the hypothecations are with reference to the
movable properties and stock in trade. The
hypothecations coupled with the delivery of
possession of the movable property with the creditor
but no right to enjoy the property given as security with
creditor are also referred to as pledges.
Mortgage.
Mortgage is a transfer of interest in specific immovable
property as a security for the repayment of debt.
Such an interest is in itself an immovable property.
Depending on the nature of interest the mortgages are
classified broadly in to 6 groups under T.P.Act.
Simple mortgage.
Mortgage by conditional sale.
Usfructuary Mortgage.
English Mortgage.
Mortgage by deposit of title deed.
Anomalous Mortgage.
Simple mortgage
Simple mortgage consists of (a) a
personal obligation either express or
implied to pay the mortgage money. (b)
transfer of right to cause the property to be
sold.
The right transferred to the mortgagee is
not the ownership.
No possession is given to the mortgagee.
Binds the mortgagor or his legal
representatives personally to pay the loan
amount.
Usfructuary Mortgage
Mortgagee is placed in possession of the property with
a right to enjoy.
The mortgagee would be entitled to enjoy the rent and
profits until the debt is repaid.
Appropriation of rents and profits, as per the
agreement between the parties.
The profits and rents may be adjusted towards the
interest, or
principle, or
principle and interest.
No specific time limit will be there as the mortgagee
retains the property till the debt is repaid.
No personal liability as the creditor will have the
property with him as a security.
English Mortgage
Mortgagor binds himself to repay the mortgage money
on a certain date.
The mortgagor transfers the property absolutely to the
mortgagee with a reservation
The reservation would be in the form of retransfer of
the property to the mortgagor upon payment of the
mortgage money.
The English mortgage differs from usfructuary
mortgage
The English mortgage differs from conditional sale.
The English mortgage differs from simple mortgage
No Personal liability to
pay
Property is absolutely
conveyed.
Property is not
absolutely conveyed
sale is converted in to a
mortgage
mortgage is converted in
to a sale
Anomalous Mortgage
Anomalous Mortgage is a mortgage which is not
covered under any of the other type of
mortgages such as Simple mortgage, Mortgage
by conditional sale, Usfructuary Mortgage,
English Mortgage, Mortgage by deposit of title
deed.
There is no specific definition for this.
Under this category other type of mortgages
such as balloon mortgage, reversionary
mortgage and what is not specifically defined
could be brought under.
Clog on Redemption
Right of redemption and right of foreclosure exists in a co-extensive manner.
Any right of redemption is a valuable right and it can not be taken away or
impaired.
Even where a mortgagor fails to pay the amount on the date specified the
mortgagor would not loose the right in respect of the property.
Any provision inserted to prevent, evade, or hamper the right of redemption
is known as clog and the clog of such nature is void.
Pollock criticizes the doctrine of clog as a rule of anachronistic principle and
shall be done away with as it is not suitable for the modern setup.
Pollock advocates that it be molded to the modern conditions by limiting it
cases where there is some thing oppressive or unconscionable in the
bargain.
In India we have not accepted the view of Pollock in toto but the said view
finds recognition in some areas like companies Act with reference to the
debenture.
The supreme court has held that even in England the position now is not to
make mortgage an irredeemable, and the same applies to India.
General rule is that where is an earlier mortgage then it would over ride the
subsequent mortgage. This is based on the principle laid down in section 48
of transfer of property act.
This rule has got exception that if the earlier mortgagee is a party to the
fraud or misrepresentation or has acted in a gross negligent manner in
inducing the third party to have a dealing with reference to the said property
which has been mortgaged to him then the said earlier mortgagee will loose
his claim and the subsequent mortgagee will have a priority over the earlier
mortgagee.
As per the tenor of the section 78 the position of the first mortgagee would
be relegated to the position of the subsequent mortgagee and the
subsequent mortgagee would get priority over. Note this will happen when
there is a fraud or misrepresentation or gross negligence and not otherwise.
Tracking
What is tracking?
The principle of tracking is based on the principles of equities that
where the equities are equal the law shall prevail. This is based
on the principle of squeeze out the middle party where there
are more than two mortgages.
This principle is based on English law but is not applicable in
Indian law in view of the rule of priority being considered as a
legal right.
How it works in English law?
For example if there are three mortgages in respect of same
property and they are with reference to different persons, then
the first mortgagee will have a legal estate while the third
mortgagee will have a security as per English law. The third
mortgagee if he redeems the first mortgage without notice to
the second mortgagee then the third mortgagee will have a
priority over the second mortgagee. This principle of the third
mortgagee overriding the second mortgagee to take the place
of the first mortgagee is known as the tracking in English law.
AGREEMENT OF SALE
In the Sale Agreement/s there is no conveyance of the property and the contents of
the sale agreement/s are the intentions of the parties and therefore the Agreement of
Sale is not compulsorily registerable;
Un-registered sale deed/s, gift deed/s are un-enforceable and not admissible in
evidence. But the said documents can be looked into for collateral purpose such as to
prove the possession;
SECTION 18 :
OPTIONAL DOCUMENTS
Leases of an immovable properties for any term not exceeding one year;
SECTION 23 :
The documents will be accepted for registration, within four months from the
date of its execution. Thereafter, penalties will be imposed calculating on
every day's delay to a maximum extent of ten times the amount of proper
registration fee.;
SECTION 27 :
REGISTRATION OF WILLS
A Will may be at any time be presented for registration or deposited (no time
limit is prescribed from date of execution);
SECTION 28 :
PLACE OF REGISTRATION
In the case of Willis and Power of Attorneys, the said documents can be
executed and registered at the discretion of the Executant;
SECTION 30 :
SECTION 31 :
PRIVATE ATTENDANCE
SECTION 32 :
SECTION 33 :
SECTION 38 :
REGISTRATION OFFICE
A person in jail;
SECTION 40 :
The Testator or the Executor of the Will (after the death of Testator) are
entitled to present the Will for purpose of registration;
SECTION 42 :
DEPOSIT OF WILLS
The Testator of the Will is entitled to deposit the Willis with District
Registrar. On the death of Testator, the deposited document will be
registered and the certified copy of the said document will be
handed over to the beneficiary of the Will;
SECTION 49 :
SECTION 51 :
BOOK - I
In this book all the registered transactions in respect of immovable properties shall be
entered;
BOOK - II
In certain cases, the Sub Registrar refuses to register the documents, when presented by
the parties. The Sub Registrar, shall make an order showing the reason/s for refusal to
register the document. The said order is appealable to the concerned Authorities,
appointed by the Government;
BOOK - III
All the registered Testamentary instruments such as Will/s shall be entered in the said
Book;
BOOK -IV
All the registered Power of Attorney, Trust Deed/s and Release Deed/s for cash
consideration (without involvement of immovable properties), Indemnity Bond/s and
Declaration/s will be registered in this Book;
SECTION 71 :
REFUSAL TO REGISTER
SECTION 72 :
APPEAL PROVISION
SECTION 78 :
[A] AGREEMENTS
i) Sale Agreement/s
ii) Joint Development Agreement/s
Sale Deed/s
Section 54 of TP Act.;
ii)
Exchange Deed/s
iii)
Gift Deed/s
[C]
MORTGAGES
i)
ii)
iii)
Usufructary Mortgage
iv)
English Mortgage
v)
vi)
[D]
[E]
[F]
[G]
[H]
LEASE DEEDS
PARTITION DEEDS
RELEASE DEEDS
POWER OF ATTORNEYS
TRUST DEEDS
[I] WILLS
There is no stamp duty payable for the will. However, if the Testator
decide to cancel the will, then, he has to pay nominal stamp duty
and fixed registration charges;
[K] BONDS
Presently, the LIC Housing Finance Limited has come into existence
and sanctioning of housing loans is vested with said statutory body.
Hence there is no registration of documents by LIC of India.
However, the LIC has valuable immovable properties and the
properties are allowed to be used by the occupants by entering into
following documents, under Indian Registration Act. on payment of
necessary stamp duty and registration charges;
SECTION 38 :
ASSIGN1v1ENT OF POLICIES