Professional Documents
Culture Documents
Property Law Project by Shivam Mehrotra
Property Law Project by Shivam Mehrotra
Property Law Project by Shivam Mehrotra
Submitted By:
Bhavya Guliani
A3211116072
BA LL.B. (H)
Section – B
Semester – VIII
Submitted To:
ii) and then mortgages one or more of the properties to another person,
Illustration: - Raja mortgages his two properties X and Y to Rumi and then
mortgages Y to Rana. If Rumi seeks to realize his mortgage out of Y, Rana can
compel Rumi to proceed first against X and realize the debt from it. In case Rumi
is unable to realize the whole amount due to him from X, he is entitled to recover
the balance from Y.
LIMITATIONS OF RULE: -
The claim to marshal must not be allowed to prejudice the rights of the first
mortgagee or of others two have acquired an interest for consideration. For
instance, if two estates, X and Y belonging to the same person are first mortgaged
to B, then X is mortgaged to C and then Y to D, C would not be permitted to
compel B to marshal in his favor, if that course would prejudice D. similarly, D
could not compel B to resort in first instance to the estate X. The case would be for
contribution under the first paragraph of section 82. As between C and D, B if
bound to satisfy himself out of two estates ratably, and thus to leave the surplus
proceeds of each estate to be applied in payment of the respective mortgages
thereon.
Finally, it should be noted that this section safeguards the interests for
consideration and not those of a volunteer. The right of marshalling may be
excluded by a contract between the parties.
(d) All interest in property restricted in its enjoyment to the owner personally
cannot be transferred by him; 1( A right to future maintenance, in whatsoever
manner arising, secured or determined, cannot be transferred)
(g) Stipends allowed to military 3[naval], 4[air-force] and civil pensioners of the
5[Government] and political pensions cannot be transferred
(h) No transfer can be made (1) in so far as it is opposed to the nature of the
interest affected thereby, or (2) 6[for an unlawful object or consideration within the
meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a
person legally disqualified to be transferee; 7 [Nothing in this section shall be
deemed to authorize a tenant having an transferable right of occupancy, the farmer
of an estate in respect of which default has been made in paying revenue, or the
lessee of an estate, under the management of a Court of Wards, to assign his
interest as such tenant, farmer or lessee.]
The General rule related to Transfer of Property is that property of any kind may
be transferred and this property can be movable or immovable. Property of any
kind can be transferred from one party to another.
ANALYSIS
Lets further look into the exceptions for transferring the property.
If there is an immovable property, which Mr. A is going to get, then Mr. A has a
chance of being legal heir. If Mr. A assumes that he is the owner of the property
and transfers the property to Mr. B, that transfer will be considered to be invalid.
Mr. A cannot transfer the property unless he gains the ownership of the property
and the property belongs to Mr. A.
2.A mere right of re-entry for a breach of a condition subsequent
Mr. A and Mr. B have a contract in which Mr. A gives his agricultural land on a
lease to Mr. B for 10 years. There is a land on the tree and Mr. A has asked Mr. B
that if he cuts the tree that is there on the land, Mr. A will have a re-entry. Mr. A
has now put a condition on Mr. B after the transfer of property and that is why it is
known as condition subsequent. Mr. A has the right of re-entry and this right
cannot be transferred. Right of re-entry cannot be transferred.
3.An Easement
4.Future Maintenance
A and B are related. Court orders that A will pay maintenance expenses for B. The
future maintenance of this right cannot be transferred.
5.Right to sue
Mr. A has committed a wrong against Mr. B and Mr. B can sue Mr. A in court. Mr.
B has the right to sue. If Mr. B wants to transfer this right to Mr. C, that is not
possible. Right to sue cannot be transferred.
6.Public Office
If you hold a public office such as judge, inspector, doctor, etc, then you cannot
transfer your public office to anyone.
7.Stipends
Stipends related to Military, Naval, Air Forces, Civil Prisoners, government
pensions, etc are personal rights and cannot be transferred.
General rule of Transfer of Property is that property of any kind can be transferred
from one person to another. Exceptions can be classified into exceptions
mentioned under section 6 of Transfer of Property Act and exceptions mentioned
in other laws.
It is open to the donor to transfer by gift title and ownership in the property and at
the same time reserves its possession and enjoyment to herself during her lifetime.
There is no prohibition in law that ownership in a property cannot be gifted
without its possession and right of enjoyment.
CASE LAWS
The only substantial question of law involved in this appeal is whether the
appellant, who was minor on the date of execution of the gift-deed dated
24.9.1945, can be held to have legally accepted the property in suit gifted to him
and the said gift-deed was irrevocable. The appellant shall hereinafter be described
as 'the donee' and his deceased mother as the 'doner.'
The High Court in the impugned judgment took a contrary view and confirming
the trial court judgment dismissed the suit of the donee holding inter alia that the
terms of the gift-deed do not indicate that any property was transferred thereunder.
The High Court held that when the donor reserved to herself the right to sign the
papers with respect to management of the school and right to take usufruct from
the property where the school is situated, there arose no question of passing over
ownership of the property to the donees, which the donees could accept.
The High Court further went on to hold that the entire right in the property gifted
was reserved by the donor to herself and therefore even when the father had
handed over the documents to the plaintiff there arose no question of any
acceptance of gift made in respect of the school property. The High Court further
held that the same legal position is in respect of property gifted to the minor
daughter and no question of acceptance of gift arose in respect of that part of the
property as well.
A deed of lease was executed on or about 22.11.1967 by one Smt. Angammal wife
of Shri AngappaChettiar in favour of Burmah Shell Oil Storage & Distributing
Company Limited (Burmah Shell) in respect of 23 acres and 16 cents of
property/land situated in the town of Bhavani for a period of twenty years on a
quarterly rent of Rs.300/- for the purpose of "erecting an installation and/or one or
more pumps service/ filling stations together with overhead/underground tanks and
other fittings for storage of petroleum products and such other facilities and
buildings as the lessee may require and for carrying business is such products
through such facilities and other kindered motor accessories or any other trade or
business that can conveniently be carried on in the demised premises". The original
lessor allegedly executed a will bequeathing the said site to her grandson
Meenashisundaram, who expired on 3.11.1971 whereafter rent used to be paid to
the guardian and mother of the said Meenashisundaram, Smt. G. Chellammal.
The appellant herein claimed itself to be a tenant in respect of the said premise
relying on or on the basis of the provisions of the said Act. It is not in dispute that
the lessor by a notice dated 4.2.1987 purported to terminate the tenancy calling
upon the appellant herein to quit and deliver the peaceful and vacant possession as
per terms of the lease dead. In reply to the said notice , the appellant herein in
terms of letter dated 26.2.1987 addressed to its advocate invoked the provisions of
Sections 5(2) and 7(3) of the Act stating that it had no intention to vacate the site
on the expiry of the existing lease on 30.6.1987 and wish to continue occupying
the same for a period of twenty years from 1.7.1987 by paying the existing rental
of Rs.500/- per quarter. By reason of letter dated 19.5.1987, the appellant herein
exercised its option to renew the lease for a further period of twenty years
commencing from 1.7.1989 on the same terms and conditions on which the
Burmah Shell held the lease immediately prior to the appointed day.
It was requested:
"May we therefore request you to let us know when it will be convenient for you to
have the lease registered on terms similar to those existing in the current lease. On
receipt of your advice in this matter, we shall take further action."
Despite the said letter, the tenancy was purported to have been terminated and as
the appellant did not quit and deliver possession unto the lessor on expiry of the
said period of lease, a suit was filed in the Court of the District Munsif, Bhawani. It
appears that the appellant herein had also filed a suit for specific performance of
contract which was not pressed.
The learned Munsif decreed the suit holding, inter alia, that although in terms of
Section 5 of the Act, the lease may be renewed for the same period but as
perSection 107of the Transfer of Property Act, necessary documents had to be
executed by the company. An appeal there against by the appellant herein was
dismissed by the District Judge, Erode. The appellant herein filed a second appeal
before the High Court of Madras which was also dismissed stating
:
"It is clear that the suit filed for renewal of the lease was only subsequent to expiry
of the lease and as such it cannot be said that the affidavit he has taken steps for the
renewal of the lease, especially when he kept quiet for nearly 3 years without
taking any steps, in spite of the filing of the suit by the appellant. It cannot be said
that the filing of the suit can be construed as step being taken for the renewal.
When the suit for recovery of possession is pending, as soon as filing of suit for
renewal of the lease, the appellant ought to have taken steps for joint trial. He has
allowed two suits to be proceeded with, independently. That means, he wanted to
take a chance before both the courts below. This conduct of the appellant cannot be
appreciated. Hence, I do not find any error in the findings of the Courts below that
the appellant has not taken any steps to get the lease renewed prior to the expiry of
the lease. Hence, the second appeal is dismissed.