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Property Law Including Transfer of Property Act
Property Law Including Transfer of Property Act
Property Law Including Transfer of Property Act
TRANSFER OF PROPERTY ACT &
EASEMENT ACT
Revision Lecture
By
Prof. VIJAY CHAVAN.
T. P. ACT, 1882 – SCOPE & OBJECT
Substantive civil law
Preamble : to define & amend- law relating to transfer of property by act of
parties
Objects:
Transfer between living persons – Clear & Uniform
Supplementary to Law of Contract
To make changes & clear existing rules
Parallel to Succession Laws
Scope of the Act
Not exhaustive- Contract, Limitation, Registration, C.P.C. etc
Transfer by operation of law excluded
Mainly deals with Immovable property
Muslim Law prevails in case of inconsistency
Territorial limitations
Three parts of The Act
TRANSFER OF PROPERTY ACT – 80
MARKS
Definitions – S. 3
Immovable property
Notice
Actionable Claims
Rules – Ss. 5 to 53-A
Movable & Immovable Ss.5 to 37
Only Immovable Ss. 38 to 53-A
Types of Transfer
Sales of Im Pr- Ss. 54 to 57
Mortgages of Im Pr- Ss. 58 to 104, Charge S. 100
Leases of Im Pr – Ss. 105 to 117
Exchanges – Ss. 118 to 121
Gifts – Ss. 122 to 129
Actionable Claims – Ss. 130 to 136
IMMOVABLE PROPERTY – S.3
Meaning of property
The Act mainly deals with Im Pro
Definition of Movable property
Definition not clear
Three Definitions
T. P. Act, 1882- S.3
General Clauses Act, 1897 – S.3(26)
Indian Registration Act, 1908 – S.2(6)
DOCTRINE OF NOTICE – S.3
Need to define e.g. Ss. 39,40 etc.
Meaning of notice- actual knowledge of fact
Two types-
Actual/ Express – direct information
Constructive – based on equity, legal presumption, five cases
Willful abstention
Gross negligence
Registration
Actual possession as notice of title
Notice to agent
MEANING OF TRANSFER S.5
Definition of transfer of property S.5
By an act
A living person
Conveys
In present or future
Property
To another living person or to himself
Certain instances/ transactions – Not transfer of property e.g. family settlement,
release, partition, compromise, relinquishment, charge etc.
ESSENTIALS OF VALID TRANSFER
Definition S.5
Transferable property – S. 6
Property must be existing
Competent transferor – S. 7
Transferee not disqualified by law
Free consent
Lawful object
According to rules in Ss. 5 to 53-A
Necessary formalities e.g. writing, attestation & registration S.9
Conveyance
TRANSFERABLE & NON
TRANSFERABLE PROPERTIES – S.6
Mere right of re-entry
Easement apart from dominant heritage
Restricted interest
Right to future maintenance
Mere right to sue
Public office & salary of public officer
Pensions & stipends
Transfer
opposed to nature of interest
For unlawful object or consideration
To legally disqualified transferee
Nontransferable right of occupancy
UNBORN PERSON – S.13
No direct transfer – S.5
Conditions u/s.13
Prior life interest
Ultimate beneficiary
Absolute interest
Before ceasing of life interest unborn person comes into existence
RULE AGAINST PERPETUITY – S.14
Object of the rule
Meaning of transfer in perpetuity
Rule u/s. 14 – Scope
Applicability
Maximum remoteness of vesting
Contingent interest till attaining majority
Exceptions
Transfer for benefit of public S.18
Personal agreement
Other cases e.g. lease, mortgage etc.
Other relevant provisions Ss. 13, 15, 16 & 20
English law
VESTED INTEREST & CONTINGENT
INTEREST SS.19 TO 24
Classification of interest (Basis)- quantum/ accrual time
Vested Interest
Meaning S. 19
No time specified
Time specified – immediate to take effect
Take effect – happening of certain event
Not affected by certain limitations- Explanation
Nature
Present fixed
Transferable & heritable
Vested interest in unborn person S. 20
Contingent Interest
Meaning S. 21
Take effect on happening/ non happening of uncertain
event
Nature
Future possible interest
Non heritable
Relevant provisions
Transfer to contingent class S. 22
Subsequent contingent interest S.23
Class interest – time not mentioned S.24
Different from Spes-successionis
DIFFERENCE – VESTED INTEREST &
CONTINGENT INTEREST
Time for accrual- immediate / future
Nature of title- perfect / imperfect
Nature – present, fixed / future, possible
Heritable – yes /no
Attachment & sale in execution proceeding – yes / no
Depend on condition – no / yes
CONDITIONAL TRANSFER – SS. 2534
Transfer – Conditional/ Unconditional S. 7
Condition – Precedent / Subsequent
Impossible / Unlawful Condition
Substantial Compliance
Ulterior disposition if prior transfer fails
Ulterior disposition -Subject to other provisions
Void condition subsequent & Ulterior disposition
Condition subsequent – happening/ non-happening
Condition subsequent must be valid to divest interest
No time for performance
Time specified – delay by fraud
DOCTRINE OF ELECTION – S.35
Principle of Equity, S.180 Indian Succession Act
General Rule u/s. 35
Professes - in lieu of benefits conferred - Same instrument
Mode of election
Express
Implied( 3 cases) – knowledge, 2yrs, exhausts
Requisition to elect
Suspension of right to elect
Exception – benefits not in lieu of
Rights of disappointed transferee
English law
RULES OF APPORTIONMENT SS. 36
& 37
Division – interest, income, obligation
Apportionment by time – S.36
In absence of contract
Accrue day to day
Payable on appointed day
Apportionment by estate – S.37
Several shares(interests)
Person under obligation
Obligation to pay in proportion
Must not substantially increase the burden
Proviso- reasonable notice
Exception- agricultural tenancies
TRANSFER BY OSTENSIBLE OWNER –
S41
Subject to Benami Transaction Act, 1988
Meaning of Ostensible Owner (Benamidar)
All characteristics of owner (all indications)
But not real owner
Certain tests- source of money, nature of possession, relation
between the parties
Scope of S. 41
Transfer of an immvoable property
By ostensible owner
With express or implied consent
For considaration
After reasonable care
In good faith
Ramcoomar Koondoo vs. Macqueen (1872)
Purchased property on name of mistress
Subsequent transferee – also protected
Applicability after 1988
DOCTRINE OF LIS PENDENS – S. 52
Lis = litigation Pendens = pending
Pendente lite nihil innovature
Basis of doctrine – constructive notice / necessity
Object- status quo, jurisdiction of court
Essential conditions
Pendency of suit
Proceeding before court
Right to immovable property must be involved
Suit must not be collusive
Property is transferred or otherwise dealt with
Transfer by any party to suit
Transfer must affect the rights of any other party
Effect of rule u/s. 52 – transferee bound by decision of court
Exception
FRAUDULENT TRANSFER – S. 53
DOCTRINE OF PART PERFORMANCE –
S.53 A
1929 Amendment- before that law was not clear
Rule u/s. 53-A
Written & executed contract for transfer of immovable property
Transfer for consideration
Possession in furtherance of contract
Already in possession – must do something in furtherance of
contract
Transferee is willing to perform
Nature of right – negative not positive
No title or interest in property
No right of action
Rights of subsequent transferee – consideration & w/o notice
English law – oral contract, right to take action
2001 Amendment – document which needs to be compulsorily registered
SALES OF IMMOVABLE PROPERTY –
SS.5457
Definition of Sale S. 54
Transfer of ownership
For price – money consideration
Essentials of valid sale
Competent parties
Subject matter – existence
Consideration – price
Mode of transfer – conveyance
When ownership is deemed to be transferred?
At the time of execution or registration
Contract of sale
Rights of prospective purchaser – specific performance, to recover
price
Seller’s Duties
Before sale
To disclose material defects in the property or title
To produce the title-deeds for inspection
To answer relevant questions as to title
To execute conveyance
To take care of the property and title deeds
To pay the outgoings
After sale
To give possession to the buyer
To covenant for title
To deliver title deeds on receipt of the price
Seller’s Rights
Before sale
Entitled to all rents, profits or other benefits
After sale
Charge on property
Buyer’s Duties
Before Sale
To disclose facts which materially increases the value of property
To pay the price
After sale
To bear the loss to the property
To pay the outgoings
Buyer’s Rights
Before Sale
Chare on property for price paid
After sale
Entitled to all benefits
MORTGAGES OF IMMOVABLE
PROPERTY SS. 58104
Meaning – S.58
Transfer of an interest
In a specific immovable property
For the purpose of security of
Payment of loan
Payment of debt
Performance of an engagement – giving rise to pecuniary liability
Transferor = Mortgagor, Transferee= Mortgagee,
Principal money + Interest = Mortgage money,
Instrument if any = Mortgage Deed
Kinds of Mortgages Ss.58 (b) to (g)
Simple Mortgage
Personal Undertaking to pay
Possession not given
If default – right to sell
Mortgage by conditional sale
Ostensible sale,
Condition- three types
Usufructuary Mortgage
Delivery of possession
Right to enjoy
No personal liability
English Mortgage
Personal obligation
Absolute transfer
With proviso to retransfer
Mortgage by deposit of title-deeds
Equitable mortgage
Deposit of title deeds
Existence of debt
Intention to create security
Territorial restrictions
Anomalous Mortgage
Residuary clause
RIGHT OF REDEMPTION S.60
To redeem- reclaim, buyback, reversion
Once a mortgage always a mortgage – no intention to transfer absolutely, object to
protect mortgagor
Scope of right
When can be exercised- after principal money becomes due
Clog on redemption
Absolute statutory right -
Not subject to contract
Clog is a stipulation which prevents mortgagor
Instances of clog- condition of sale, long period etc.
How to exercise this right of redemption- tender of payment, deposit in court of
law
Effect of redemption- mortgage deed, title deeds, possession, retransfer
Partial redemption
Extinguishment of right of redemption
OTHER RIGHTS OF MORTGAGOR
S. 61 65
Transfer of mortgage
Right to inspect documents- own cost, reasonable time
Right to redeem separately or simultaneously – one mortgagee, two mortgages,
subject to contract
To recover possession in case of usufructuary mortgage- additional to s.60,
provides time
Accession to mortgage property – part of property, natural or acquired,
inseparable necessary to preserve property
Right to improvements -
Right to get benefits of renewed lease
Mortgagor’s right to lease
LIABILITIES OF MORTGAGOR – S. 65 & 66
Implied covenants of mortgagor for
Title
Defence of title
Payment of public charges
Payments of rent
Discharge of prior mortgage
Liability for waste
Not to do anything injurious to property
RIGHT TO FORECLOSURE S.67
Counter part of S.60- closing or withdrawing
Subject to contract and not absolute
Nature of right-
To file suit
To debar mortgagor absolutely from redemption
When it arises – after mortgage money becomes due
Depends upon type of mortgage
Mortgage by conditional sale
Anomalous mortgage- entitled to foreclose
Partial foreclosure
OTHER RIGHTS OF MORTGAGEE
SS.68 73
Right to sell – simple, English, m. by title deeds, anomalous-depends
Right to sue for mortgage money – personal obligation, property destroyed, etc.
Right to sell w/o intervention of court- only in english, certain areas, parties not
hindu – muslim
Right to accession
Right to renewed lease
Right to spend money – to keep safe, when necessary, after informing
Right to get proceeds of revenue sale
LIABILITIES OF MORTGAGEE – S.76
Only when is in possession – Duties
To manage property
To collect rents & profits
To pay rents, revenues & public charges
To make necessary repairs
Not to commit any destructive act
With respect to insurance money
To keep accounts
To apply rents & profits
To account for gross receipts after tender or deposit of money
MISC. PROVISIONS
Marshalling Securities S. 81
Contribution S. 82
Subrogation S. 92
Prohibition of tacking S. 93
CHARGES : S 100
Similar to mortgage but not mortgage
Meaning
Where immovable property made security
For payment of money to another
No transfer of interest
Transaction not mortgage
Types
By act of parties
By operation of law
Extinction
Release
Novation
Merger
DIFFERENCE BETWEEN MORTGAGE
& CHARGE:
Meaning
Transfer of interest
Mode of creation
Right in rem
Enforcement against bonafide transferee
Registration
Future property
LEASES – SS. 105 TO 117
Partial transfer – an interest s. 105
Essential elements
Lessor & lessees – parties
Transfer of right to enjoy
Duration of lease – certain time or in perpetuity, presumptions u/s.
106
Consideration – premium or rent
Mode of transfer s. 107
Registration or oral delivery of possession
States Rent Control Legislation
Different from licence
Rights & Liabilities of Lessor – S.108
Rights
Not mentioned specifically, duties of lessee
Liabilities
To disclose any latent material defect in the property
To give possession at lessee’s request
Covenant for quiet enjoyment
RIGHTS & LIABILITIES OF LESSEE – S.108
Rights
To enjoy accretions
To avoid lease in case of destruction of property
Too deduct cost of repairs
To deduct outgoings
To remove fixtures
To remove crops
To assign his interest
Liabilities of lessee
To disclose facts materially increasing the value of property
To pay rent or consideration of lease
To maintain the property
To give notice to lessor of any encroachment on property
To use or enjoy the property in a reasonable way
Not to erect permanent structure without lessor’s consent
To retransfer the possession on determination of lease
DETERMINATION OF LEASES – S.111
By lapse of time
By happening of specified event
By termination of lessor’s interest
By merger
By express surrender
By implied surrender
By forfeiture
By expiry of notice to quit
EXCHANGE: SS. 118121
A Type of transfer
Mutual transfer of ownership
Subject matter of transfer – movable or immovable
Neither thing or both thing being money only
Mode of transfer- same as in case of sale such property
Rights and liabilities-Same as seller and buyer
Right of a party deprived of a thing received in exchange
GIFTS: SS.122129
Definition of gift s. 122
Essential elements of valid gift
Donor and donee
Transfer of ownership
Property must be existing
Transfer without consideration- monetary value
Voluntarily – free conent
Accepted by donee
Mode of transfer
Immovable property – registration, attestation
Movable property – delivery of possession
Exceptions-
Gifts in contemplation of death
Mohammedan law
Revocation of a gift S. 126
A) Mutual agreement
Condition subsequent
Not depend upon solely the will of donor
Must be a part of same transaction
B) Revocation as contract
C) Protection to transferee for consideration without notice
Onerous gift: S. 127
Meaning of onerous
Single transfer (gift) of several things
Either to accept full or nothing
If two separate/ independent transfer to same person- no obligation
Disqualified (incompetent) donee
Universal donee S. 129
Who is universal donee?
Gift consists of donor’s whole property
Donee will be personally liable
To all debts due by and liabilities of donor
At the time of gift
To the extent of gift property
Object is to protect donor’s creditors
Difference between s. 53 and s.128
Subject to s.127
ACTIONABLE CLAIMS: SS. 3, 130136
Definition S.3
Unsecured money debt
A claim to beneficial interest in movable property not in possession
of claimant
Existing, accruing, conditional or contingent
Mode of transfer
Whether with or without consideration
Writing and signed by the transferor
Registration not necessary
Notice of transfer- not necessary, but should be given, in writing signed by
transferor
Transfer subject to liability of transferor
Disqualified transferee- judges, lawyers, officers of the court
PARTII
Indian Easement Act, 1982
20 Marks
MEANING OF EASEMENT S.4
Austin – ‘Fractional Right’
Salmond – ‘Legal Servitude’
It is a right
Incorporeal, in rem, re aliena, private right, positive or
negative
KINDS/ TYPES OF EASEMENTS
Positive & negative S. 4 – definition
Continuous & discontinuous S. 5 – act of man
Apparent & non-apparent S.5 – permanent sign, after careful observation
Permanent & limited by time S.6-
Limited by use S.6- place, period, hours & purpose
Conditional S.6 – happening of specified event
Easement of necessity & quasi-necessity S.13
Easement by prescription S. 15
Customary easement S.18
MODES OF ACQUISITION S. 819
By grant (Ss. 8-12)
Who may impose,
additional easement,
lessor & mortgagor,
lessee,
who may acquire
Express or implied
By necessity (Ss. 13 & 14)
Absolute necessity – presumption of grant
Quasi necessity – not absolute necessity, apparent & continuous
Diection of way of necessity
By prescription Ss. 15 - 17
Manner prescribed by law
Long uninterrupted enjoyment
For 20 years
Openly & peaceably
Exclusion in favour of reversionary
Certain rights can’t be acquire by easement
By custom S. 18
EXTINCTION OF EASEMENT S. 3747
By dissolution of right of servient owner
By release/ surrender
By revocation
By lapse of time or happening of dissolving condition
On termination of necessity
On becoming useless easement
By permanent change in dominant heritage
By permanent alteration in servient heritage by superior force
By destruction of either heritage
By unity of ownership
By non-enjoyment
SUSPENSION OF EASEMENT S. 49
Both tenements in possession of same person for limited period
REVIVAL OF EASEMENTS S. 51
In case of destruction- if restored within 20 yrs
In case of unity of ownership – court set aside such transaction
In case of suspension – after completion of period
MEANING OF LICENCE S. 52
Grant – express or implied
To do or continue to do
In or upon immovable property
In absence of grant amounts to unlawful
But not an easement
Also not interest in the property
Nature of license
Personal not proprietary right, not transferable, not heritable,
only positive in nature, can be revoked at any time,
consideration not required
DIFFERENCE BETWEEN LICENCE &
EASEMENT:
Personal – proprietary
In personam – in rem
Need of two set of properties
Only positive- may be negative
Transferability
Heritability
Revocation
Right to sue third person
Source, mode of creation
DIFFERENCE BETWEEN LICENCE &
LEASE:
Meaning
Transfer of interest
Nature of right
Possession
Heritability
Transferabilty
Right against trespasser
Consideration
REVOCATION OF LICENCE: SS. 6063
General rule – revocable at wish of grantor
Exceptions
Coupled with transfer of property
Executed work of permanent character & incurred expenditure
Revocation may be express or implied
Deemed revocation- release, merger, ceasing of grantor’s interest, lapse of time
etc.
Reasonable time to leave premises
Right to compensation on eviction