Transfer of Property and Easement Law which help to LLB, BA-LLB,BBA-LLB, BCOM-LLB and other students for understand the Property Transfer Law

1. TRANSFER OF PROPERTY AND
EASEMENT LAWS
By
Bhriguraj Mourya
Assistant Professor
College of Law and Legal Studies
Teerthanker Mahaveer University,
Moradabad

2. INTRODUCTION OF
TRANSFER OF
PROPERTY LAW

3. HISTORICAL ASPECT OF
TP LAW
• Ancient India-there was various types and method of transfer
of property, no uniform and written law
• Medieval India-Hindu law and Muslim law but not uniform in
whole India
• British India-
• Before 1882-English Law and equity
• After 1882-by transfer of Property law, Indian Contract Act,
1872 and Easement Act,1882

4. HISTORY OF TRANSFER
OF PROPERTY ACT, 1882
• First Bill was Draft by Indian Law Commission constituted by
Duke of Argy-II in 1870.
• The Drafted by Charles Turner(CJ of Madras)
• After facing various times amendment due to local
government it reached for adoption in 1882 and adopted on
17th Feb. 1882
• Enforced from 1 July 1882

5. OBJECT OF THE ACT
• This Act applies only to transfers by living persons
• This Act mainly deals with the transfer of immovable
properties
• General principles of transfer does not affect transfer by
Muslims
• Act has not only defined the existing rules of transfers but
also amended and modified some of them
• This Act not cover the testamentary and intestate
transfers
• This Act was not made applicable to the whole of India in
the first instance.
• This Act not cover the all types of transfer of property

6. OUT LINES OF TP ACT,
1882

7. UNIT I
• Meaning and Definition of Property,
• Movable and Immovable Property,
• Notice
• Attestation
• Actionable Claim

8. MEANING OF PROPERTY
• Property is any Physical and virtual entity that is owned by an
individual of jointly by a group of persons.
• Right relating to property
To Control
To take
To transfer
To exclude others

9. DEFINITION OF
PROPERTY BY SALMOND
The term property, observed that the term
might be understood in one of the three senses
mentioned below:
1. The term property includes all the legal
rights of a person. That is to say that it
includes complete ownership of a man on
material as well as incorporeal things.
2. The term includes not a man’s personal
rights, but only his proprietary rights.
3. The term includes the rights of ownership in
material things such as building etc

10. DEFINITION OF
PROPERTY BY BENTHAM
“The term property includes ownership of material objects
alone. He has, in a way, interpreted the term in a narrow
sense. According to Austin, Property denotes the greatest
right of enjoyment known to the law, including servitudes. The
Property includes both proprietaries as well as the personal
rights of a man”

11. DEFINITION OF
PROPERTY
Section 2(c) of the Benami Transactions (Prohibition) Act, 1988
defines property as:
“Property means property of any kind, whether movable or
immovable, tangible or intangible, and includes any right or
interest in such property”.

12. DEFINITION OF
PROPERTY
Section 2 (11) of the Sale of Good
Act, 1930 defines property as:
“Property means the general
property in goods, and not merely
a special property”.

13. DEFINITION OF
PROPERTY BY SUPREME
COURT
R.C. Cooper vs. Union of India AIR 1970 SC 564,
“The term property includes both corporeal things such as land,
furniture and incorporeal things such as copyrights and
patents.”

14. KINDS OF PROPERTY
Movable Property Definition in Law and
Immovable Property
Corporal and Incorporeal Property
Tangible and Intangible Property
Public and Private
Jura in Re Propria and Jura in Re Aliean

15. DEFINITION OF
IMMOVABLE PROPERTY
Section 3 of The Transfer of Property Act,
1882 defines property as:
“Immovable property does
not include standing timber,
growing crops or grass”.

16. DEFINITION OF IMMOVABLE
PROPERTY
The Registration Act, 1908 defines “immovable property” as
follows:—
“Immovable property shall include land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries or any other
benefit to arise out of land or things attached to the earth or
permanently fastened to anything which is attached to the earth
but not standing timber, growing crops or grass”.

17. DEFINITION OF IMMOVABLE
PROPERTY
In Case of Sukrey Kurdeppa v. Nagireddi(6 Mad. HRC 71) By
Justice Holloway;-
“Immovability may be defined to be
capacity in a thing of suffering
alternation in the relation of place;
Immovability is incapacity for such
alteration. If, however, things cannot
change it place without injury to the
quality, it is immovable.”

18. DEFINITION OF
IMMOVABLE PROPERTY
Section 3(25) of the General Clauses Act, 1897 defines the term
“immovable property” as follows:
“Immovable property shall include
land, benefit to arise out of land and
things attached to the earth or
permanently fastened to anything
attached to the earth.”

19. 1. LAND
 A determinate portion of the earth’s surface.
 Column of space above the surface.
 The ground beneath the surface.
 All objects either on or under the surface of land in their
natural state, for example, minerals. Land also includes lakes,
rivers and pond which are land covered by water.
 All objects placed by human agency either on or under the
surface of land with the intention of permanent annexation.

20. 2. BENEFITS ARISING
OUT OF LAND
• Right to collect lac, Leaves, fruits and other things from trees,
• Right to collect revenue from agricultural land,
• right to take out minerals,
• Right to collect fish from ponds and river,
• Right to collect debt secured by mortgage of immovable
property,
• Right to collect rent from tenanted property are all benefits
arising out of land
• others.

21. 3. THINGS ATTACHED TO
THE EARTH
Section 3 of the Transfer of Property Act, 1882 says that
“attached to the earth” means—
• Rooted in the earth, as in the case of trees
and shrubs;
• Embedded in the earth, as in the case of
wall or buildings; or
• Attached to what is so embedded for the
permanent beneficial enjoyment of that to
which it is attached.

22. TEST OF FIXTURE
•Purpose theory
•Injury theory
•Mode of Annexation

23. PURPOSE THEORY
Purpose of Annexation of property in land
Wake v. Hall (1883)8 AC.
“It is I think impossible to hold that the amount of
disturbance is so great as to amount to a
destruction of the land, or to show that the
property in the material must have been intended
to be irrevocably annexed to the land”
--Justice Blackburn

24. INJURY THEORY
Sukrey Kurdeppa v. Nagireddi (6 Mad. HRC 71) By
“Immovability may be defined to be capacity
in a thing of suffering alternation in the
relation of place; Immovability is incapacity
for such alteration. If, however, things
cannot change it place without injury to the
quality, it is immovable.”
-- Justice Holloway

25. MODE OF
ANNEXATION
Holland v. Hodgson (1872) LR 7 CP 328
“The true rule is that articles that are not otherwise attached to
land than by their own weight are not be considered part of
the land unless it is shown that they were intended to be part
of the land. On the contrary, an article which is affixed to the
land even slightly is to be considered as part of the land
unless it is shown that it was intended to continue as chattel,
the onus lying on those who contend that it is a chattel.”
-Lord Blackburn

26. ACTIONABLE
CLAIM

27. DEFINITION S.3 OF THE TP ACT,
1882
“Actionable claim’ means a claim to any debt, other than a debt
secured by mortgage of immovable property or by
hypothecation or pledge of movable property, or to any
beneficial interest in movable property not in the possession,
either actual or constructive, of the claimant, which the Civil
Courts recognise as affording grounds for relief, whether such
debt or beneficial interest be existent, accruing conditional or
contingent:”

28. • Any debt other than-
a) Secured by mortgage or pledge
b) Secured by hypothecation
• Any Beneficial interest
• Not in possession-actual or constructive
• Which the civil court recognise as affording ground of relief
• Such beneficial interest be existent, accruing, conditional.

29. NOTICE

30. DEFINITION OF NOTICE
S.3
“A person is said to have notice of a fact when he actually
knows that fact or when, but for willful abstention from an
enquiry or search which he ought to have made, or gross
negligence, he would known it”

31. KINDS OF NOTICE
• Actual Notice
• Constructive notice

32. ACTUAL NOTICE
Actual notice must be a definite information, given by a person
interested in the thing in respect of which the information is
given.

33. ESSENTIAL OF ACTUAL
NOTICE
• Definite knowledge
• Made by definite person himself
• Such knowledge should obtained in
same transaction

34. 2. CONSTRUCTIVE
NOTICE
A person has constructive
notice of all the facts of which
he would have acquired
actual notice had he made
those inquiries which he
ought reasonably to have
made

35. THIS LEGAL PRESUMPTION OF
CONSTRUCTIVE NOTICE
• Wilful abstention from enquiry or search
• Gross negligence
• Registration of instrument
• Actual possession
• Notice to agent

36. TRANSFER OF
PROPERTY
Section;- 5 to 9

37. DEFINITION OF TRANSFER OF
PROPERTY S.5
“Transfer of property means an act
by which a living person conveys
property, in present or in future,
to one or more other living
persons, or to himself and one or
more other living persons; and “to
transfer property” is to perform
such act”

38. ESSENTIAL OF TRANSFER OF
PROPERTY
1. An act of conveyance.
2. The act must by a living persons.
a) To an other living person
b) To more other living persons
c) To himself
d) To himself and one or more other living persons
3. act of transfer of the existing property.
4. Transfer take place in present or future.

39. ESSENTIAL OF VALID
TRANSFER
• Transferable property (s.6)
• Competency of Parties (s.7)
• Lawful object of transfer (s.6)
• Transfer in manner and in form
required by this Act(s.9)
• General rule of contract Act shall be
apply.(s.4)

40. TRANSFERABLE PROPERTY
(S.6)
All property Can be Transfer except ……………….

41. PROPERTY CAN NOT
TRANSFER
• Spes successionis
• Right of re-entry
• Easement
• Restrictive Interest
• Right to future maintenance
• Mere right to sue
• Public office, salaries and pension
• For unlawful consideration and object
• Interest of farmers, tenants and lessee

42. SPES SUCCESSIONIS S.
6(A)
1. Chance of succession
2. Legacy

43. PERSONS COMPETENT TO
TRANSFER S.7
Must be competent to contract,
Must have title to the property or authority to
dispose of transferable property

44. PERSONS COMPETENT TO
CONTRACT
who is of the age of majority according
to the law to which he is subject,
who is of sound mind, and
is not disqualified from contracting by
any law to which he is subject

45. PERSONS AUTHORIZED TO DISPOSE OF
PROPERTY
Karta of Hindu joint family,
a guardian, a trustee,
an executor,
Agent
administrator, etc

46. OPERATION OF TRANSFER S.8
“Unless a different intention is
expressed or necessarily implied, a
transfer of property passes forthwith
to the transferee all the interest which
the transferor is then capable of
passing in the property and in the
legal incidents thereof.”

47. LAND,
the easements annexed thereto,
 the rents and profits thereof
accruing after the transfer
all things attached to the earth

48. MACHINERY
• The machinery, its movable parts will be its incidents
• Where machinery is attached to the earth, it is transferred
along with the land transferred.
• The incidents of machinery include all the movable parts of
the machinery like nut, bolts, etc

49. DEBT
Where the property to be transferred is a debt or
other actionable claims,
those securities will be legal incidents which are
only for the debt transferred to the transferee

50. HOUSE
• Easements annexed to it,
• Its rent accruing after the transfer,
• Locks, keys, bars, doors, windows
and all other things provided with it
for permanent use

51. MODE OF TRANSFER S.9
Oral or by Delivery of possession
Written or (Registered) instrument

52. DELIVERY OF POSSESSION
• Sale-movable property or immovable
property valuing less than rupees one
hundred.
• Lease- Month to month
• Mortgage- Mortgage by deposit of title-
deeds
• Exchange- immovable property valuing
less than rupees one hundred
• Gift- Movable property.

53. BY ONLY REGISTERED
INSTRUMENT
Sale- Immovable property exceeding rupees one
hundred and other intangible property of any value.
Mortgage-Simple mortgage (of any amount) and All
other mortgage (except the mortgage by deposit of
title-deeds) securing sums exceeding rupees one
hundred).
Lease-from year to year, or for a term exceeding one
year or reserving a yearly rent.
Exchange- immovable property exceeding one
hundred rupees in value.
Gift- immovable property.
Actionable claims- where only writing is sufficient,
registration is not necessary).

54. CONDITION RESTRAINING
ALIENATION (S.10)
1. transfer of property
2. Condition of limitation
3. Absolute restriction on alienation
4. Such condition and limitation is void
5. Transfer is valid

55. INDIAN –S.10-35
Valid Transfer +Valid Condition= transfer is Valid
Invalid Transfer + valid Condition= invalid transfer
valid Transfer + invalid Condition= transfer is valid but
condition is void

56. RESTRICTION REPUGNANT TO
INTEREST CREATED (S. 11)
1. The absolute transfer of interest
2. Restriction on enjoyment of
property

57. EXCEPTION OF S.11
• Lease
• Restriction made by law
• Accumulation of income
• For beneficial enjoyment of property

58. Tulk v. Maxhey (1848)
The condition to keep house in sufficient and
proper repair and uncovered with building of
vacant piece if land. The court held such
condition as void but transfer is valid.

59. Roshan Lal v. Manoj Kumar, AIR 2015 Raj 71
There was a common chowk between the residential houses of
the parties. The condition stipulated in the sale deed executed
by the previous owner was not to use the common chowk for
private purposes. It was held that such restriction could not be
enforced against the subsequent owner when no such
restriction was mentioned in the sale deed given to him.

60. CONDITION MAKING INTEREST
DETERMINABLE ON INSOLVENCY OR
ATTEMPTED ALIENATION
S.12
• The Transferee become insolvent
• On endeavouring to transfer the property
• The interest or benefit of person in
property will cease.

61. EXCEPTION OF S.12
• Lease

62. ESSENTIALS OF VALID CONDITION
Impossible Condition
Forbidden by Law
Defeat the Provisions of any Law
Fraudulent
Involves Injury to the Person or Property
of Another
Immoral or Opposed to Public Policy

63. KINDS OF CONDITION
• Condition Precedent S.26
• Condition subsequent S.29
• Collateral Condition S.34

64. TRANSFER FOR
BENEFIT OF UNBORN
PERSON
Section 13

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

66. ESSENTIALS
• Transfer of property to an unborn
person
• Transfer the absolute interest
• Transferor create an prior interest for
life-time.
• Child should be take birth before the
cessation of prior interest.
• Unborn person have vested interest

67. Sopher v Administrator General of
Bengal (1944 PC 67)
If under a bequest in the circumstances mentioned in
section 113 there was a possibility of the interest given to
the beneficiary being defeated either by a contingency or
by a clause of a defeasance; the beneficiary under the
later bequest did not receive the interest bequeathed in
the same unfettered form as that in which the testator
held it and that the bequest to him did not therefore
comprise the whole of the remaining interest of testator
in the thing bequeathed

68. RULE OF DOUBLE POSSIBILITIES
Whitby v Mitchell, (1890) 44 Ch D 85)
The rule provided that “if an interest in property is given to an
unborn person, any remainder to his issue is void, together
with all subsequent limitations. Thus, if land was limited to A
(a bachelor) for life, remainder to his son for life, remainder to
A’s son’s son in fee simple’ the remainder to the grandson
would be valid under this rule. However, after the 1925 Act
was enacted, this rule was abolished and transfers in favour
of unborn persons began to be governed by the rule against
perpetuity.

69. RULE AGAINST
PERPETUITY
S.14

70. MEANING OF
PERPETUITY
Perpetuity means continuous or unending
transaction. It is tying up property for an indefinite
period. Transfers involving generation after
generation (pidhi dar pidhi) are known as creating
perpetuities
Father-son-son’s son-son’s son’s son…..continue

71. ESSENTIALS
1) There should be a transfer of property.
2) Transfer is to create an interest in the favour of an
unborn person.
3) Interest so created should take effect after the life-time
of one or more persons living at the date of such
transfer and during the minority of the unborn person.
4) The unborn person should be in existence at the
expiration of the interest of the living person.

72. SOUNDARARAJAN V NATARAJAN, AIR
1925 PC 244.
• In this case the Privy Council held that since at the date of the
transfer it is not known whether or not a guardian would be
appointed by the court for the minor in future, in such a case
for the purposes of section 14 the normal period of minority
would be 18 years. Therefore, the vesting may be postponed
up to the life of the last person holding property for his life and
the minority of 18 years of the ultimate beneficiary.

73. REASON OF RULE AGAINST
PERPETUITY
To maintain social progress
To boost industrialisation
To facilitate business
To avoid family suffering

74. EXCEPTION OF RULE AGAINST
PERPETUITY
Individual contract
Charge
Gift for charitable purpose
Property purchase by corporation
Lease
Personal laws
Property transfer for public benefit

75. Tagore v. Tagore (1872) 9 Beng. LR 377
The perpetuity was declared void as being an estate so created
by this process not allowed by Hindu Law and since then
principles of section 14 govern perpetual transfer..

76. INTEREST

77. KINDS OF INTEREST
•Vested interest S.19
•Contingent interest S. 21

78. VESTED INTEREST S.19
• An interest therein is created in
favour of a person
• without specifying the time when it is
to take effect, or in terms specifying
that it is to take effect forthwith or
• on the happening of an event which
must happen,
• such interest is vested.

79. ON THE HAPPENING OF AN
EVENT
• Enjoyment Postponed
• Prior interest
• Accumulation of income
• Conditional limitation

80. TEST OF VESTED INTEREST
• Intention of parties
• Condition precedent
• Time of vesting
• Contrary intention
• Death of transferee

81. CONTINGENT INTEREST
S. 21
• An interest therein is created in favour of a person to take
effect only on
• the happening of a specified uncertain event, or
• if a specified uncertain event shall not happen, or
• specifying the time when it is to take effect, or
• in terms specifying that it is to take effect forthwith
such person thereby acquires a contingent interest in the
property.

82. WHEN CONTINGENT INTEREST
BECOMES VESTED
Expiration of time
Fulfillment of condition
Happen of uncertain event
Not happen of uncertain event

83. DIFFERENCE BETWEEN VESTED
&
CONTINGENT INTEREST
S.
No.
Point Vested interest Contingent interest
1 Specific time Without Specific time
of transfer
With Specific time
of transfer
2 Event Certain uncertain
3 Condition Not need to fulfill Need to fulfill
4 Death of transferee not effected the possession Effect the possession
5 Nature Transferable and inheritable Transferable but not
inheritable
6 Pass off Transferee’s legal heir Transferor's legal heir
7. Right to enjoyment Immediate right to
enjoyment
Not have Immediate
right to enjoyment

84. PRINCIPLES OF
ELECTION
S.35

85. MEANING OF ELECTION
Election is choosing process between
two rights when it is clear intention
(express or implied) that both are not
to be enjoyed.

86. ESSENTIALS
1. Transfer property which he has no right to transfer,
2. By the same transaction confers any benefit on the owner
of the property,
3. Suc
4. h owner must elect either to,-
 confirm such transfer, or
 to dissent from it
4. If he dissents from it, he shall relinquish the benefit so
conferred,
5. The benefit so relinquished shall revert to the transferor or
his representative as if it has not been disposed of.

87. EXCEPTION
•Property on lien
•Benefit transfer from other
instrument

88. MODE OF ELECTION
• By acceptance of benefit
• By enjoyment of property within two
year
• Status quo

89. TIME OF ELECTION
• According to instrument
• In case of disability;-
i) End of disability
ii) Death of donee his legal representative
• Any time (according to English law)

90. TRANSFER BY
OSTENSIBLE OWNER
(SECTION 41)

91. OSTENSIBLE OWNER
“An ostensible owner is that person who is
not the real owner of the property. But he
is one who has all the indicia of ownership
without being the real owner.”

92. “Nemo Dat Quod Non-Habet”
(No one can transfer better title
than he himself has.)

93. CONDITION
• Transfer of immovable property
• the consent (express or implied) of the persons
interested in immovable property,
• The Transfers for consideration
• The person is the ostensible owner of such property,
• the transfer shall not be voidable on the ground that the
transferor was not authorized to make it,
• the transferee, after taking reasonable care to ascertain
that the transferor had power to make the transfer, has
acted in good faith.

94. CAIRA CROSS V. LORIMER
1860) 3 MACQ 837 (829).
House of Lord:-
“If a man either by words or by conduct, has intimated that he
consents to an act which has been done and that he will offer
no opposition to it, although it could not have been lawfully
done without his consent and he thereby induces others to do
that from which they might have abstained, he cannot
question the legality of the act, he had so sanctioned to the
prejudice of those who have so given to his words or to the
fair inference to be drawn from his conduct.”

95. RAM COOMAR V MACQUEEN,
18 NR 166.
Privy Council :
“it is a principle of natural equity, which must be universally
applicable that where one man allows another to hold himself
out as the owner of an estate and a third person purchases it
for value, from the apparent owner in the belief that he is the
real owner, the man who so allows the other hold himself out
shall not be permitted to recover upon his secret title, unless
he can overthrow that of the purchaser, by showing either that
he had direct notice or something which amounts to
constructive notice, of the real title, or that there existed
circumstances which ought to have put him upon an inquiry
that, if prosecuted, would have led to a discovery of it.”

96. SURAJ RATAN THIRANI V AZAMABAD TEA CO LTD,
AIR 1965 SC 295
The Supreme Court held that;-
“for the applicability of this section it must be
shown that the transferor was the ostensible
owner of the property with the consent of the co-
sharers where the property is the subject-matter
of joint ownership and that the transferee took
reasonable care to ascertain that the transferor
had power to make transfer”.

97. THIS PRINCIPLE PROTECT
THE TRANSFEREE
• The transferor should be the ostensible owner of the property.
• He must have held the property with the consent (express or
implied) of the real owner.
• The transferee had purchased the property for value
(consideration) and had acted in good faith and with
reasonable care.
• The onus is on the transferee to show that he purchased the
property for value and in good faith without the knowledge of
the real state of the title.

98. JAYADAYAL PODDAR V. BIBI HAZRA,
AIR 1947 SC 171.
Ground of test that transaction is benami or
not
• Source of the purchase-money, i.e., who paid the price of the
property?
• Nature of possession after the purchase, i.e., who had the
possession of property?
• Motive of giving benami colour to the transaction, i.e., why the
property was purchased in the name of other person?
• Relationship between the parties, i.e., whether the ostensible owner
and the real owner were friends, strangers or relatives?
• Conduct of the parties in dealing with the property, i.e., the conduct
who used to take care of the property and who had control over the
property?
• Custody of the title deeds, i.e., who had the title-deeds?

99. BENAMI TRANSACTION
Benami transaction” means any transaction in which property is
transferred to one person for a consideration paid or provided
by another person.
In simple words, the person who purchases the property
and pays the price for it, does not purchase the property in his
own name but in the name of any other person. The other
person whose name is used as the owner of the property is
known as benamidar (ostensible owner). In truth, he holds the
property on behalf of the real owner because he is not the real
owner.

100. SURAJ RATAN THIRANI V AZAMABAD TEA CO LTD,
AIR 1965 SC 295
The Supreme Court held that;-
“for the applicability of this section it must be
shown that the transferor was the ostensible
owner of the property with the consent of the co-
sharers where the property is the subject-matter
of joint ownership and that the transferee took
reasonable care to ascertain that the transferor
had power to make transfer”.

101. LIS PENDENS S.52
Transfer of property during
pendency of suit

102. BASIS
Ut Lite Pendente Nihil Innovetur”
“Nothing new should be introduced into a pending litigation.”

103. MEANING
Transfer of property during the
litigation
Pedente Lite
person bound with decision of court

104. CONDITIONS
• Pendency of Suit or Proceeding
• In competent court.
• The suit or proceeding must not be collusive.
• A right to immovable property must be directly and
specifically in question in that suit or proceeding.
• The disputed property must be transferred or
otherwise dealt with by any party to the suit.
• The alienation must affect the rights of any other
party to the dispute.

105. PENDENCY OF SUIT OR
PROCEEDING
SUIT
means any proceeding by one or more persons against some
other person or persons in a court of justice
PROCEEDING
means the form and manner of conducting juridical business
before a court of juridical officer.
THE PENDENCY
the pendency of a suit or proceeding shall be taken to
commence from the date of presentation of the plaint or the
institution of the proceeding in a court of competent
jurisdiction and continue till final.

106. NAGUBAI V. B SHAM RAO.
1956
Venkatarama Aiyar J, was observed by that,
“in a collusive proceeding a claim put forward is fictitious, the
contest over it is unreal, and the decree passed there is a
mere mask having the similitude of a judicial determination
and worn by the parties with the objects confounding third
parties. But when a proceeding is alleged to be fraudulent,
what is meant that the claim made there in is untrue, but the
claimant has managed to obtain the verdict of the court in his
favour and against his opponent by practising fraud on the
court.............while in a collusive proceeding the contest is a
mere sham, in a fraudulent suit it is real and earnest”.

107. RADHAMADHUB HOLDAR
V.
MONOHUR MOOKERJI,
15 IA 97
It is held that s.52 does not apply on
involuntary sale or transfer but apply on
voluntary transfer

108. BALA RAMONADRA V DAULUI.
27 BOM LR 38.
• it was held that Transferor was not party to the suit of 1914
in her own right and the sale to defendants took place before
she was brought on record, therefore, doctrine of lis pendens
did not apply. It was further observed by the court that even if
Transferor had sold the property after she was brought on
record, the result would have been the same because the
transfer was made in her own right as owner, and on record
she was a representative of her father of Transferor only

109. SALE OF IMMOVEABLE
PROPERTY
Section-54-57

110. DEFINITION OF SALE
S.54
Sale is a transfer of ownership in
exchange for a price paid or promised
or part-paid and part-promised.
•

111. ESSENTIALS OF SALE
•Parties
•Transfer of Ownership
•For consideration of price
•Subject matter of transfer

112. PARTIES
Seller
Buyer

113. MODE OF SALE
• Tangible property of the value of one hundred rupees
and upwards, by a registered instrument.
• Intangible of the value of any amount only by a
registered instrument.
• Tangible property of a value less than one hundred
rupees by a registered instrument or by delivery of the
property.

114. CONTRACT FOR SALE
A contract for the sale of immoveable
property is a contract that a sale of
such property shall take place on
terms settled between the parties

115. RIGHT AND LIABILITY
OF SELLER
S.55

116. LIABILITY OF SELLER
• Disclose the material defect
• Produces all documents of title for
examination to buyer
• Answer the best of his information
• Convey the deed of sale to buyer
• Care of property during the agreement and
delivery
• Gives the possession of property
• Pay all public charges and dues related to
property.

117. RIGHTS OF SELLER
• Right to receive of price (All
amount)
• Rent and profit of property till
ownership
• Right to retain possession of
property till non payment of price.

118. LIABILITY OF BUYER
• Disclose all fact which might
increase the value of property.
• To pay all price of property.
• To bear all loss caused to
property after sale.
• Pay all public charges and dues
after transfer of ownership.

119. RIGHTS OF BUYER
• All benefit and rents
• Right of sale deed
• Right to possession of property

120. DOCTRINE OF MARSHALLING
S.56
If the owner of two or more properties mortgages them to
one person and then sells one or more of the properties to
another person, the buyer is, in the absence of a contract to
the contrary, entitled to have the mortgaged-debt satisfied
out of the property or properties not sold to him, so far as
the same will extend, but not so as to prejudice the rights of
the mortgagee or persons claiming under him or of any other
person who has for consideration acquired an interest in any
of the properties.

121. • If the owner of two or more properties,
• mortgages them to one person and then sells one or more
of the properties to another person,
• the buyer is entitled to have the mortgage-debt satisfied
out of the property or properties not sold to him (subject to the
contrary contract) so far as the same will extend
• But this will not prejudice the rights of
the mortgagee, or
persons claiming under him, or
of any other person,

122. MORTGAGE OF
IMMOVEABLE PROPERTY
Section-58-99

123. DEFINITION OF MORTGAGE
S.58
A mortgage is the transfer of an interest in
specific immoveable 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.
•

124. ESSENTIALS OF
MORTGAGE
• Parties
• Transfer of interest in any immovable property
• For security of repayment
money advanced to be advanced by way of
loan,
an existing or future debt
the performance of any liability
• Specific property

125. TERMS OF MORTGAGE
• Transferor -mortgagor,
• Transferee -mortgagee;
• The Secured amount-the mortgage-money.
• the instrument --mortgage-deed.

126. KINDS OF MORTGAGE
1. Simple mortgage s. 58(b)
2. Mortgage by conditional sale s. 58(c)
3. Usufructuary mortgage s. 58(d)
4. English mortgage s. 58(e)
5. Mortgage by deposit of title deed. s. 58(f)
6. Anomalous mortgage s. 58(g)

127. 1. SIMPLE MORTGAGE
S.58(b)
• Personal undertaking
• Without delivering possession,
• On failing to pay mortgaged property to be
sold.
• No foreclosure
• Sale on decree of court.

128. 2. MORTGAGE BY CONDITIONAL SALE
• Ostensible sale
• Sale become void on payment of loan.
• On default of payment the sale became
absolute.
• Remedy only foreclosure
• Registration is compulsory.
• Two agreement in one document.

129. P. L. BAPUSWAMI V. N. PATTAYA GOUNDER
(1966)
• In this case the court determine that the sale
depend on intention of parties and other
ground as following;
• Real value of property
• The future traction of property regarding
property
• Default of payment of amount.

130. 3. USUFRUCTUARY MORTGAGE
• Delivery of possession of mortgage
property
• Mortgagee retain the possession until
repayment of amount.
• Redemption on payment.
• No remedy of foreclosure or sale.
• Registration is compulsory.

131. RAGHUNATH V. COMPETENT OFFICER DELHI
1970
Custodian can claim and retain the
possession till mortgage debt.

132. TARA CHAND V SAGARBAI,
AIR 2007 SC 2059
• Where the mortgagee was authorised to pay himself the
amount of mortgage-money from the rents and profits of the
property and the money is paid,
• Where the mortgagee is authorised to pay himself from rents
and profits and the terms prescribed for the payment of the
mortgage-money has expired and the mortgagor pays the
mortgage-money or balance of it to the mortgagee or deposits
it in the court.

133. 4. ENGLISH MORTGAGE
• Where the mortgagor binds himself to repay the mortgage-
money on a certain date.
• Absolute Transfer of the mortgaged property
• Delivery of possession.
• On the condition of re-transfer on payment of the mortgage-
money.
• Remedy is sale not foreclosure

134. 5. MORTGAGE BY DEPOSIT OF TITLE DEED.
• Transfer of title deed
• With intention
• Remedy is sale on decree of court
• All provision of simple mortgage shall
apply
• Registration is not necessary

135. 6. ANOMALOUS MORTGAGE
• Which is not all of the above mortgage

136. RIGHT AND LIABILITY
OF MORTGAGER

137. LIABILITY OF
MORTGAGER
1. Not destruct or injured the mortgaged
Property s.66
2. Re payment of debt. S.68
3. Payment of all public charges and dues
regarding mortgage property. S.65(e)
4. To give possession of property to
mortgage according to contract. S.58(d)
5. Payment of rent. S.65(e)
6. Payment of interest on prior mortgage
S.65(e)

138. RIGHTS OF MORTGAGER
1. Right to redeem S. 60, 60A, & 61
2. Right to inspection and production of
document s. 60B
3. Right to recover the possession of
property s.62
4. Right of accession in mortgage
property s.63
5. Right of improvement in property s.63A
6. Right to lease the property s.64 & 65A

139. LIABILITY OF
MORTGAGEE
1. Duty of mortgagee in possession of property s.76
 Manage the property
 To collect the rent and profit
 To pay all public charges and dues
 To make necessary repairs
 Not destruct or injured the property
 Keep proper account
 To take insurance against injury
 To keep account about mortgage money
2. Duty of mortgagee not in possession of property.

140. RIGHT OF MORTGAGEE
1. Right to foreclosure and sale. S.67
2. Right to sue for mortgage money s.68
3. Right to exercise the power of sale s.69
4. Right to appoint receiver for execution of sale s.69A
5. Right to appropriate accession to mortgage property
s.70
6. Right to get benefit of renewed lease s.71
7. Right to spent money for preservation of property
s.72
8. Right to take the proceeds of revenue, sale or
compensation on acquisition of mortgage property
s.73

141. RIGHT OF
REDEEM
s.60, s.60A & 61

142. • to deliver the mortgage-deed and all
documents
• to deliver possession,
• to re-transfer the property to the
mortgagor or any third person.
• Redeem of interest of property

143. ONCE A MORTGAGE, ALWAYS A
MORTGAGE
• In case Nookes & Co. v. Rice
Lord Davey interpreted this maxim.
• A mortgage cannot make irredeemable and if it is make any
provision
• K. Vilasini v. Edwin Preiera 2009. right to redeem is till final
decree of sale or foreclose
• Modh shair khan v. raja seth 1944

144. S.91 RIGHT TO REDEEM OTHER
THEN MORTGAGER
• Prior mortgagee
• Lessee
• Charge holder
• Sub mortgagee
• Purposer of equity of redeem
• Donee
• Any other person who have interest in property
• Co mortgager

145. RIGHT TO
FORECLOSE AND
SALE
s.67 s.69

146. RIGHT TO FORECLOSE
• Proper institution of suit
• Extinguishes the mortgager’s right
to redeem.
• Makes mortgagee as absolute
owner.

147. SIMPLE MORTGAGEE
• simple money decree,
• File suit for the decree of sale

148. USUFRUCTUARY
MORTGAGE
• He can neither sue for sale nor foreclose the mortgage.

149. MORTGAGE BY CONDITIONAL
SALE
• The proper remedy is to deprive
the mortgagor of the right of
redemption
• Right to foreclose offer default
of payment

150. ENGLISH MORTGAGE
• An English mortgagee can file a suit for the sale of the
mortgaged property.

151. MORTGAGE BY DEPOSIT OF
TITLE-DEEDS

152. ANOMALOUS MORTGAGE
• Any right can be used

153. RIGHT AND
DUTIES OF
LESSEE
S 108

154. RIGHTS OF LESSEE
• Right to peaceful enjoyment of property
• To avoid the lease
• To repair the property
• To pay such payment which are obligatory on
leaser
• To remove the fixtures made by lessee
• Benefit of crops and plant on property after
termination of lease
• To assign his interest in the leased property

155. DUTIES OF LESSEE
• Duty to disclose any information regarding property
• Duty to keep and restore the property in good
condition
• Duty to payment of rent
• Duty to give information about any proceeding on
property
• Reasonable use of property
• To not erect any permanent structure
• Duty to restore the property in good condition

156. TERMINATION OF LEASE
S.111
• By efflux of time
• On condition
• On termination of leaser's interest
in property
• On merger
• On surrender of lease
• On forfeiture
• On notice

157. WAIVER OF FORFEITURE
S.-112
• By acceptance
• By distress for rent
• By any other act

158. EASEMENT
Indian Easement Act, 1882

159. DEFINITION OF EASEMENT
S.4
An easement is right which the owner or occupier
of certain land possesses, as such, for the
beneficial enjoyment of, to do and continue to do
something that land, or to prevent and
continue to prevent something being done, in
or upon, or in respect of certain other land not his
own .

160. DEFINITION BY
PEACOCK
• Easement is a privilege without profit acquired in
respect of one tenement by the owner thereof,
where by the owner of the other tenement is
restricted in the full enjoyment to the rights
thereto to extent of being obliged to suffer, or not
to do, something thereon, for the advantage or
benefit of the former tenement.

161. SALMOND
As easement is a legal servitude imposed
upon one piece of land for benefit of
another piece of land.

162. DOMINANT HERITAGE
The land for the beneficial enjoyment of
which the right of easement exists
DOMINANT OWNER :-
Owner or Occupier of such land is called
dominant owner

163. SERVIENT HERITAGE
The land on which the right of
easement exists

164. NATURE OF EASEMENT
• Dominant and servient Heritage
• No easement in grass
• Dominant and servient Heritage distinct
• Beneficial Enjoyment
• Not personal right
• No right for the servient owner
• Fractional right.
• An incorporeal right in rem

165. KINDS OF EASEMENT
• Affirmative and negative
• Continuous and discontinuous s.5
• Apparent and non apparent s.5
• Permanent and Limited s.6
• Subordinate s.9
• Accessory s.24
• Necessary s.13
• Quasi easement s.13
• Natural easement s.17
• customary

166. CREATION OF
EASEMENT
• By grant
• By necessity
• By prescription
• By operation of law
• By custom
• By transfer of dominant heritage

167. REFERENCES;-
• Dr Awtar Singh, Transfer of property Laws