Professional Documents
Culture Documents
Property Law Notes 5th Semester
Property Law Notes 5th Semester
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THE TRANSFER OF PROPERTY ACT
It came into existence in 1882. Before that, the transfer of immovable property was
governed by principles of English law and equity.
SCOPE:
1. It applies only to transfer by the act of parties and not by operation of
law.
2. This Act deals with a transfer of property inter vivos, i.e., a transfer
between living persons.
3. It contains transfer of both movable and immovable property but a
major portion of the enactment is applicable to the transfers of
immovable properties only.
4. The Act is not exhaustive.
Nature:
1. It is a Substantive Law. (deals with the essential substance of rights under law
i.e., that part of law that creates, defines, and regulates rights. Eg. law of
contracts, torts, wills, and real property)
2. It is not absolute: (Absolute laws cannot be changed)
# Substantive law and procedural law are the two main categories within the law.
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SCHEME OF THE ACT
Transfer
By Act of parties By operation of law
Testamentary Inter vivos (b/w 2 LP, TPA) (e.g., Execution, insolvency, succession)
(Takes effect after death &
by Indian Succession Act)
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Property is defined as a thing that is recognized as having some value by the society
and that which is being held by a person.
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CONCEPT OF PROPERTY
• The term ‘property’ includes every species/types of estate, real and personal,
and everything which one person can own and transfer to another.
• It extends to every species of right and interest capable of being enjoyed as
having money value.
• Property: Sale and despotic dominion in which one man exercises over the
external things of the world in exclusion of the rights of any other individual
in the universe. By Ehrlich Blackstone (1959)
• The concept of property is abstract, so instead of referring to some material
object, like ‘piece of land’ or the tractor that cultivates it, it refers to a
bundle of rights that may be exercised with respect to that object.
- Right to possess
- Right to use and enjoyment
- Right to dispose
- For infinite period
Subject to residual character
- Right over a determinate thing indefinite part of users
- Unrestricted in part of disposition
- Unlimited in part of duration
• The term “Property” has not been defined in Transfer of Property Act (TP
Act). However, in the Act, the word has been used in the widest and generic
sense. Property denotes every kind of interest or right that has an economic content.
• Absolute interest: It means ownership which consists of a bundle of rights,
rights to possessions, right to enjoyment etc. or any other way so that an
owner can deal or dispose of.
Possession Ownership
Claim Claim
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De facto de jure
2. Often ownership and possession are merged in one person i.e. when I say "This
is my pen", I have ownership and possession. If I give my pen to a friend to use it
then I will still own the pen but the friend will have possession being a form of
property in the pen.
DEFINITION OF OWNERSHIP
Austin defines:
1. Ownership means a right which avails against everyone, who is subject to the
law.
2. It is a right indefinite in point of user, unrestricted in point of disposition and
unlimited in point of duration.”
Subject Matter of Ownership
Normally ownership implies the following:
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· The right to manage
· The right to posses
· The right to capital
· The right to the income
TYPES OF OWNERSHIP:
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4. Trust Ownership V Beneficial Ownership
Trust Ownership: To create a trust, the property owner (called the
"trustor," "grantor," or "settlor") transfers legal ownership to a person or
institution (called the "trustee") to manage that property for the benefit of
another person (called the "beneficiary"). The trustee often receives
compensation for his or her management role.
Beneficial ownership: Beneficial owner is the person with the right to
enjoy or benefit from the property – this can include the right to occupy or
enjoy any income from the property. A person can be both a legal and
beneficial owner which is very common.
5. Vested Ownership and Contingent Ownership
Vested ownership – a person who has vested ownership of a thing has the
full legal rights to it. In other words, it belongs exclusively to him or her.
Contingent Ownership – ownership in which title is imperfect but is
capable of becoming perfect on the fulfilment of some condition. In this
kind of ownership the owner does not have full right to the property.
6. Absolute and limited ownership
An absolute owner is the one in whom are vested all the rights over a thing
to the exclusion of all. When all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person without any restriction, the
ownership is absolute.
But when there are restrictions as to user, duration or disposal, the
ownership will be called a limited ownership.
For example, prior to the enactment of the Hindu Succession Act, 1956, a
woman had only a limited ownership over the estate because she held the
property only for her life and after her death; the property passed on to the
last heir or last holder of the property.
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POSSESSION
Savingny: Intention coupled with physical power to exclude others from the use
of material object.
2) Intention of the possessor to exclude any interference from others. i.e. animus
possidendi.
John Salmond: According to John Salmond, both corpus and animus must be
present to constitute Possession. Ownership is a legal concept whereas Possession
is factual as well as legal concept.
CATEGORIES OF POSSESSION
Possession is divided into two categories.
a) Possession in fact and
b) Possession in law.
Possession in fact is actual or physical possession. It is physical relation to a thing.
Possession in law means possession in the eye of law. It means a possession which
is recognized and protected by law. (There is sometimes a discrepancy between
possession in fact and position in law, although usually possession exists both in
fact and in law in the same person.)
POSSESSION DE FACTO (IN FACT) & POSSESSION DE JURE
(IN LAW):
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• Some discordance in law and fact occurs. Law something presumes which
may not actually exist. Normally ‘possession in law’ and ‘possession in fact’
exist in a person but it may vary.
a) Possession in fact or de facto : De facto Possession exists where the thing is in
the immediate occupancy of a party. The person in de facto possession has the
physical control of the thing to the exclusion of others and has Animus and
Corpus over the material object. De facto possession may be described as actual
Possession.
- It can be seen landlord and tenant where tenant holds possession of house
physically or de facto, but it is not possession in law or de jure.
b) Possession in law or de jure: De jure possession can be described as possession
in law. Legal possession may exist with or without property in possession. It is also
called constructive possession. A servant may possess car, but in the eyes of law, it
is possession of master.
- Also called Juridical Possession, it means possession in the eyes of the law.
- This may not be accompanied by De facto Possession.
- Even when the property is lying locked, the De jure possessor is the De
facto possessor of the property.
IMMEDIATE POSSESSION & MEDIATE POSSESSION
- If your purchases a book from the book shop personally and have it
with you, it is immediate possession.
- I own a house and reside in it. It is in my immediate possession.
- The pledge has immediate possession of the thing pledged. I ride my
bicycle. It is immediate possession.
b) Mediate Possession: is also called as “indirect possession”. It is the
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Possession of a thing through another, either through his friend, servant for
agent. As the thing remains, in possession with another, the possessor has
lesser degree of physical control over such thing.
- 'X' has a car, which he leaves with his driver. The possession of the driver
will be immediate whereas the Possession of 'X' will be mediate.
- 'A' purchased a house through his agent and the agent got the possession.
A's possession is said to be the mediate possession.
- I let my house to you. You are bound to hand over the house to me
whenever I desire. You have immediate possession, and I have mediate
possession of house through you.
- I send my servant on my cycle to purchase vegetables. I have mediate
possession of my cycle through my servant. My servant has immediate
possession of cycle.
CORPOREAL & INCORPOREAL POSSESSION
Corporeal: Those things, which are having physical or material existence, wherein
direct relationship with the thing, are possible. Therefore corporeal possession is
the possession of material things, movable as well as immovable such as the Car,
book, pen, wristwatch, etc.
Incorporeal: These are the things, which do not have physical existence and
therefore cannot be perceived by our senses. For example - Copyright, Trademark,
Patent, Goodwill etc.
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MODES OF ACQUIRING POSSESSION: SEC 3(3) OF GENERAL
CLAUSE ACT
1. By taking: Taking implies an act exclusively on the part of the person who
physically takes the Possession. It is acquisition of the Possession
without the consent of previous Possessor. Sometimes it is said to
be unilateral act. Transferee acquires the possession without the
knowledge or consent of the former Possessor of the thing. It may
or may not be lawful. If it is lawful then it is legal possession.
i.e. possessio-juri.
2. By delivery: Delivery completes voluntary act from one person to another. The
transferor gives actual possession to the transferee. It is usually a
lawful mode of possession.
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Actual delivery: In actual delivery the thing is physically delivered. Actual delivery
is a kind in which goods are delivered.
Corporeal Incorporeal
b) Personal property - The law of personal property includes all other proprietary
rights whether they are in rem or in personam.
# Title: Title is a legal term; it means the ownership right to property. Title can be
created by operation of law. Title is acquired by transfer or by operation of law
such as ‘succession’. Title is the legal way of saying you own a right to something
Deeds, on the other hand, are actually the legal documents that
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transfer title from one person to another.
• Moveable property
• Immoveable property
The Transfer of Property Act has not defined the term “Immoveable Property”.
It only says that “immoveable Property” does not include standing timber, growing
crops or grass. Thus the definition under TP Act is neither comprehensive nor
exhaustive.
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DEFINITION OF IMMOVEABLE PROPERTY
According to The General Clauses Act, 1897 defines the term “immoveable property”
as follows:
“Immoveable 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.”
By combing both definitions, we may say that, the term includes land, benefits
to arise out of lands, and things attached to the earth, except standing timber,
growing crops and grass.
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➢ All objects placed by human agency either on or under the surface of
land with the intention of permanent annexation (take over). For
example, buildings, fencing and walls etc.
(b) Benefits Arising out of Land: All the benefits arising out of land are also
considered as immoveable property. Right to collect lac, leaves etc. from trees,
revenue from agricultural land, right to take out minerals, to collect fish from
ponds, rent from tenanted property are all benefits arising out of land.
However, standing timber, growing crops, grass have been excluded in The
Registration Act, 1908.
4. Growing crops: Growing crops includes creepers like pan, angoor, etc.,
millets (Wheat, Sugarcane, etc.), Veg like Lauki, Kaddo, etc. These crops don’t
have any own independent existence beyond their final produce.
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5. Grasses: It can only be used as fodder, and no other use is possible.
Therefore it is movable.
# But a contract to cut grass will be an interest in chattel, so is immovable
property.
1. Things imbedded in the earth mean those things which rest by their own
weight on earth. Examples, houses, walls buildings etc.
However certain things like an anchor imbedded in the land to hold a ship is
not an immovable property’
2. The test of immovability is whether or not the thing rests by its own weight
on earth and whether it can or cannot change place and be removed from one
place to another place.
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(iii) Attached to what is so embedded:
1. Where a thing is attached to something embedded in the earth for its
permanent beneficial enjoyment, the thing attached becomes immoveable
property too. Examples: doors, windows, etc.
2. However, electrical appliances, fitting etc. though fastened to the walls,
doors etc. are not considered immoveable because these are not permanent but
only temporary and not necessary for the permanent beneficial enjoyment of
walls, doors, house etc.
• A right of ferry
• A right of way
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• Right to collect lac from trees
• A factory
Movable Property
The Transfer of Property Act has not defined “movable property”. According to
the General Clauses Act, “movable property means property of every description
except immovable property”.
• A royalty
(1) seen the executant sign or affix his mark to the instrument, or
(2) seen some other person sign the instrument in his presence and by the
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direction of the executant, or
(3) has received from the executant a personal acknowledgement of his
signature or mark, or of the signature of such other person, and
(4) each of whom has signed the instrument in the presence of the executant,
but
(5) it shall not be necessary that more than one of such witnesses shall have
been present at the same time, and
(6) no particular form of attestation shall be necessary;
Explanation:
• Section 3 of the TP Act provides that attesting means a person has signed
the document by way of testimony of the fact that he saw it and executed
and this act of giving evidence or becoming witness is called attestation and
witnesses are called attesting witnesses.
• Object of attestation:
1) It makes clear that only executant has executed the document. Thus
Attestation ensures the authenticity of the execution of a document.
2) The document has been executed by the executant without force,
fraud or undue influence i.e. with free consent.
Executant – a person who has a certain right over a property and makes a
document to make changes to his right over that property.
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Execute – the act of an executant writing and signing on an instrument.
Sunder Kaur v. Shah Uday Ram – The Supreme Court held that by attesting the
document, witnesses do not confirm that they have knowledge of the
contents of that document.
• Requirements for valid attestation:
Requisites for valid attestation are:
1) Age of majority
2) Sound mind
3) A party to the transaction cannot be himself an attesting witness but a
person who has some interest in the transaction can act as an
attesting witness. Example: A takes some loan from B by mortgaging
his immovable property. Now, if B who lends money has no
sufficient money with him and takes some money from his friend C
and gives the full amount to A, then C would be a person who is
interested in the mortgage deed although he is not a party to it.
Kumar Harish Chandra v. Banshidhar Mohanty – The Supreme Court held that
the person who has some interest in the transaction can be an attesting
witness.
• Essentials for valid attestation:
1) There must always be two or more attesting witnesses.
2) Each attesting witness must see –
✓ The executant sign or put his thumb impression, or
✓ Some other person sign the instrument in the presence of and
by the direction of the executant, or
✓ The witness should have received from the executant a
personal acknowledgement of his signature or mark or of a
person signing on behalf of the executant.
3) Each witness must sign the instrument in the presence of the
executant. In Abinash Chandra v. Dasarath, the Supreme Court has held
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that not only the executant should sign the document in the presence
of the attesting witnesses, but the witnesses too should sign it in the
presence of the executant.
4) Each witness must sign only after the execution is complete.
5) All the attesting witnesses need not attest at the same time.
6) There is no particular form prescribed for attestation in the Act.
7) The acknowledgement must be by the executant himself and not by
any agent.
8) Attestation cannot take place before the signature of the executant.
9) When the executant is a pardanashin woman: Lala Kundal Lal v.
Mushrafi Begam – The executant was a pardanashin woman who was
sitting behind a curtain. She took her hand out of that curtain and put
her thumb impression on the deed which was seen by the witnesses.
Thereafter her husband signed the deed and then it was signed by the
attesting witnesses. The Privy Council held that the attesting
witnesses have signed the deed in the presence of the executant.
As per Section 3 of the TP Act, “a person is said to have notice" of a fact when he
actually knows that fact, or when, but for wilful abstention from an enquiry or
search which he ought to have made, or gross negligence, he would have known it.
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Explanation:
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being in force regulating the registration of documents.
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The Actionable Claim is intangible movable property and it can be transferred.
A debt may be secured or unsecured debt. Where the debtor gives security for
repayment of debt to the creditor, it is known as secured debt but where no
security is given, that is unsecured debt
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➢ A copyright,
➢ Debt secured by mortgage of immovable property or hypothecation
of movable property.
➢ Transfer of Actionable Claim (Section 130): According to Section 130, the
transfer of both types of actionable claims, i.e., with or without
consideration are effected by the execution of an instrument in
writing. The instrument must be signed by the transferor or his duly
authorised agent.
Banking business includes recovery. Thus, the assignment of a debt, a non-
performing asset, with right to collect the debt amount by the State Bank of
India to a banking company was held to be a valid transaction. Such a
transaction is not prohibited by the Transfer of Property Act, nor it is in
violation of any principle of public policy. [Kotak Mahindra Bank Ltd. v.
Caopra Fabricator & Manufacturer Pvt. Ltd., AIR 2011 All 19].
➢ Mode of Assignment: Mode of assignment of an actionable claim is
given in Section 130. It must be effected by an instrument in writing
signed by the transferor or his duly authorised agent. It is not
necessary that the assignment should be made by a separate
document. Only an endorsement on the back of a document
containing the actionable claim is sufficient for the purpose.
According to Section 5 of the TPA, “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.
In this section “living person” includes a company or association or body of individuals, whether
incorporated or not, but nothing herein contained shall affect any law for the time being in force
relating to transfer of property to or by companies, associations or bodies of individuals.”
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Explanation/ Analysis:
Property of any kind may be transferred, except as otherwise provided by this Act or by any other
law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to
anyone except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage. (Servient Heritage
means an inherited property over which the dominant owners have a right to use it to
their advantages and Dominant Heritage means inheriting a right over another's
property without owning it.)
(d) An interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him.
(dd) A right to future maintenance, in whatsoever manner arising, secured or determined,
cannot be transferred.
(e) A mere right to sue cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before
or after it has become payable.
(g) Stipends allowed to military, naval, air-force and civil pensioners of the government and
political pensions cannot be transferred.
(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest affected
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thereby, or (2) 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.
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable
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.
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The first line of the Section 6 of the Act says that property of any kind may be
transferred. Thus transferability of property is the general rule. But there are certain
exceptions of this general rule provided under Section 6 of the TP Act.
There are other laws e.g. Hindu law and Muslim Law under which the
transfer of certain properties is prohibited. Those properties are also non-
transferable under Section 6 of the Act e.g. a property dedicated to God,
waqf properties etc.
(B) Non-transferable under Section 6 of the Act – Exceptions to the
general rule of transferability
Section 6 lays down ten kinds of non-transferable properties:
1. Section 6 (a): Spes successionis,
2. Section 6 (b): Right of re-entry,
3. Section 6 (c): Easementry right,
4. Section 6 (d): Restricted interest,
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5. Section 6 (dd): Right to future maintenance,
6. Section 6 (e): Mere right to sue,
7. Section 6 (f): Public office,
8. Section 6 (g): Pensions and Stipends,
9. Section 6 (h): Nature of interest, Unlawful Object, Disqualification of
Transferee
10. Section 6 (i): Untransferable right of occupancy.
1. Section 6 (a): Spes Successionis
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• Transfer for an Unlawful Object or Consideration: A transfer cannot be
made if it is for unlawful object or consideration. A property
otherwise transferable may not be transferred if the transfer is for an
unlawful object or consideration.
Under Section 23 of the Indian Contract Act, 1872, a consideration
or object is unlawful, if –
(a) It is forbidden by law,
(b) It is of such a nature that if permitted it would defeat the
provisions of any law,
(c) It is fraudulent,
(d) It involves injury to the person or property of another, or
(e) It is immoral or opposed to public policy.
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2. No recovery of possession for 5 years if acquired by transfer
Every person competent to contract and entitled to transferable property, or authorised to dispose of
transferable property not his own, is competent to transfer such property either wholly or in part,
and either absolutely or conditionally, in the circumstances, to the extent and in the manner,
allowed and prescribed by any law for the time being in force.
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Section 7, which deals with competency to transfer provides that the transferor –
(a) Who is of the age of majority according to the law to which he is subject,
(b) Who is of sound mind, and
(c) Who is not disqualified from contracting by any law to which he is subject.
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Age of majority: Generally the age of majority is 18, except when a guardian of
minor’s person or property has been appointed by the court, in which case it is 21.
Person Authorised to dispose of Property: Any person who is authorised to dispose of the
property is competent to transfer it too e.g. ‘Karta’ of Hindu joint family, a
guardian, a trustee, an executor or administrator etc. A tenant cannot transfer the
tenanted property because he is not the owner of the property. Similarly, a person
authorised for collecting rents and managing an estate of the landlord is not
empowered to transfer the land as landlord’s agent.
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(i) The property must be a transferable property. Section 6 of the TP Act
contains certain exceptional cases where property is not transferable.
(ii) The transferor must be competent to contract. Transferor must be a living
person at the time of transfer. He may be a human being or a juristic person
like company or association etc. He must be an adult of sound mind and
must not be disqualified to contract by any law to which he is subject.
(iii) Transferee must be a living person at the time of transfer. The Act has not
laid down any criteria for competency of the transferee. He must be a
human being or a juristic person. Section 6 (h) (3) provides an exception.
Judges, legal practitioners or officers connected with any court of justice are
incompetent transferees in dealing with actionable claims.
(iv) The transferor must have the right to transfer the property being
transferred. He must be entitled to transfer the property or authorised to
dispose of the property, if it is not his own.
(v) The transferor may transfer the property either wholly or partly and either
absolutely or conditionally. All the formalities prescribed by the Act must be
complied with. The property must be transferred in the manner provided by
the Act.
Transfer in favour of a minor
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SECTION 8: OPERATION OF TRANSFER
Section 8 of the Transfer of Property Act provides transfer of different kinds of
property and their legal incidents. It provides, “Unless different intention is
expressed or necessarily implied, a transfer of property passes for with the
transferee all the interest which the transferor is then capable of passing in the
property and in the legal incident thereof.
• Such incidents include where the property is land, the easement annexed
thereto, the rent and profits thereof accruing after the transfer and all things
attached to the earth;
• where the property is a house, the easements annexed thereto, the rent
thereof accruing after the transfer, and the locks, keys, bars, doors, windows
and all the other things provided for permanent use therewith;
• where the property is a debt or other actionable claim, the securities therefor
except where they are also for other debts or claims not transferred to the
transferee, but not arrears of interest accrued before the transfer;
• where the property is money or other property yielding income, the interest
or income thereof accruing after the transfer takes effect.”
ORAL TRANSFER SECTION 9:
This section essentially mandates that a transfer of property may be made without
writing in every case in which writing in not expressly mentioned/required by law
but it is also essential to note here that the act is not exhaustive of such kinds of
transfers.
• Under section 54, a sale of tangible immovable property of value more than hundred
Rupees (Rs 100/-) is required to be made, only by a registered instrument.
• In Section 59 of the T.P. Act, a writing is necessary in the case of simple mortgage or in case
of all other mortgages except a mortgage by title-deed deposit where the principal
amount or sum secured is more than hundred rupees (Rs 100/-).
• Also, in section 107, a lease of immovable property from year to year, or for any term
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exceeding one year, or reserving a yearly rent, is required to be made in writing.
• Section 130 mandates that all transfers of actionable claims have to be made by writing and
u/s 118, all exchanges are subject to the same rules as are applicable to sales.
It can be deducted that when the law requires that there should be an instrument in
writing and the said instrument should be registered then the ownership can only
be transferred by that method. But, where no writing is required by the Transfer of
Property Act or any other law, the transfer may be made orally.
Absolute restraint: Absolute restraint is void and transfer is valid, while partial
restraint as regard to time, place or person is valid. Example: If A transfers
property to B and his heirs with a condition that if the property is alienated, it
should revert back to A. Such a condition, being absolute, is void.
• In case of lease transition, lessor can impose condition that the lessee shall not
sub lease it.
• In case of married woman, a condition that she will not have right during her
marriage, to transfer the property.
PROVIDED that property may be transferred to or for the benefit of a woman (not being a
Hindu, Muhammadan or Buddhist), so that she shall not have
power during her marriage to transfer or charge the same or her beneficial interest therein.
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In simple words, though absolute restraints are bad in law, partial restraints are
valid. If there are conditions which restrain the transferee not to alienate the
property outside the family, it has been held by the Courts that they are partial
restraints. For example, whenever there are conditions in a family settlement
whereby the members are not allowed to sell their shares to a stranger, such
conditions are valid. But it is not permissible to restrict the alienation to a
particular time. Such a restriction is not partial but an absolute restraint and as such
invalid.
• Exceptions to the general rule: There are two exceptions to the rule that absolute
restraints are void – one in favour of lessors and the other in favour of a married
woman.
(i) Lease: Conditional transfer is valid in the case of lease where the condition is for
the benefit of the lessor or those claiming under him. Lease is a transfer of a
limited interest where the lessor (transferor) reserves the ownership and transfers
only the right of enjoyment to the lessee (transferee). A lessor can impose a
condition that the lessee will not assign his interest or sub-lease the property to any
other person. Such a condition will be valid.
• This exception is applicable to permanent leases too. The Supreme Court
has held that this section does not carve out any exception with regard to
perpetual or permanent lease. Thus, any condition restraining the lessee
from alienating leasehold property is not invalid.
• A condition in the lease that the lessee shall not sublet or assign his interest
to anyone during the tenure of the lease is valid. The reason for validity is
that the lessor may not have confidence in the third person who gets the
sub-lease.
• Similarly, a stipulation in the contract of lease that the lessee would not
sublet the premises and if he does, he would have to pay a fourth of the
consideration as nazaar to the lessor, is valid and enforceable.
• A condition in the lease deed that the lessee would compulsorily have to
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surrender the lease in the event the lessor needs to sell the property again is
valid.
(ii) Married women: This section constitutes another exception which is in favour of
married women. It says that property may be transferred to or for the benefit of a
woman (not being Hindu, Mohammedan or Buddhist), so that she shall not have
power during her marriage to transfer or charge the same or her beneficial interest
therein. The Married Woman’s Property Act, 1874 contains the similar provision
Conditional Transfer (Section 25) see also Section 10
Illustrations
(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour.
The lease is void.
(b) A gives Rs. 500 to B on condition that he shall marry A's daughter C. At the
date of the transfer C was dead. The transfer is void.
(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is
void.
(d) A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer
is void.
SECTION 26: FULFILMENT OF CONDITION PRECEDENT.—
Where the terms of a transfer of property impose a condition to be fulfilled before
a person can take an interest in the property, the condition shall be deemed to have
been fulfilled if it has been substantially complied with.
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Illustration:
(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of
C, D and E. E dies. B marries with the consent of C and D. B is deemed to have
fulfilled the condition. (i.e., though only partially fulfilled) intention of the
agreement is important.
(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of
C, D and E. B marries without the consent of C, D and E, but obtains their
consent after the marriage. B has not fulfilled the condition.
# derived from the maxim; equity looks at the intent rather than the words or
form. That is, Condition should be valid/ performable and reasonable.
Doctrine of cy-pres: Cy pres is a legal doctrine used by the courts to alter the
terms of a charitable trust. When a person creates a charitable trust, the express
charitable purpose of the trust may become impossible to fulfill. Instead of
terminating the trust, the courts will then alter the purpose of the trust to allow it
to continue, while keeping it as closely in accordance to the original intention of
the settlor as possible.
For example, A trust is created to build an old age home and help the old people
live a dignified life, the infrastructure is created for the purpose, but due to certain
reasons no one turns up to live there. In such a situation the trust wants to use the
infrastructure for starting an orphanage, then the court can alter the terms
regarding the purpose of the trust Instead of terminating the trust because the
nature of work is similar
DOCTRINE OF ACCELERATION
Acceleration: A hastening; a shortening of the time until some event takes place.
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A person who has the right to take possession of property at some future time may
have that right accelerated if the present holder loses his or her legal right to the
property. If a life estate fails for any reason, the remainder is accelerated.
The principle of acceleration can be applied when it becomes clear that one party
to a contract is not going to perform his or her obligations. Anticipatory
Repudiation, or the possibility of future breach, makes it possible to move the right
to remedies back to the time of repudiation rather than to wait for the time when
performance would be due and an actual breach would occur.
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manner, the ulterior disposition shall not take effect unless the prior disposition fails in that
manner. Illustration
(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three
months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The
disposition in favour of C takes effect.
(b) A transfers property to his wife; but, in case she should die in his life-time, transfer to B that
which he had transferred to her. A and his wife perish together, under circumstances which make
it impossible to prove that she died before him. The disposition in favour of B does not take effect.
SECTION 27:
Illustration:
b) A transfers property to his wife; but, in case she should die in his life-time, the
property will be transferred to B which he had transferred to his wife. A and his
wife perish together (e.g., in an accident), under circumstances which make it
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impossible to prove that she died before him.
The disposition in favour of B does not take effect, because the intention of the
transferor might have been that the property which was to be enjoyed by the wife
also included the interest of their children as long as she lived.
Doctrine of part performance: Sec. 53A TPA (Transfer of Property Act 1882)
MODULE 3 : SALE
3.1 Definitions, Contract for sale and contract of sale (Section 54)
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made: Such transfer, in the case of tangible immovable property of the value of one
hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made
only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer
may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such
person as he directs, in possession of the property.
Contract for sale: A contract for the sale of immovable property is a contract that a sale of such
property shall take place on terms settled between the parties.
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• Section 54 says that “sale” is a transfer of ownership in exchange for a price paid or
promised or part-paid or part-promised. Therefore, sale is a transfer of ownership
for money consideration.
• Sale implies an absolute transfer of all rights in the property sold. No rights
are left in the transferor.
• Sale has to be distinguished from mortgage, lease and hire-purchase.
In mortgage, there is transfer of an interest in the property. In lease, there is
transfer of right to enjoy the property. In hire-purchase agreement, the
transferee is given the right to terminate the agreement in comparison to
sale whereas in sale, the transferee has to pay the entire money (purchase
price) at once and all the rights of the transferor are transferred to him.
# Hire purchase agreements are agreements whereby an owner of goods allows a
person, the hirer, to hire goods from him for a period of time by paying instalments. The
hirer has an option to buy the goods at the end of the agreement if all instalments are
being paid.
• Essentials of a sale
(1) Parties
(2) Subject-matter
(3) Money-consideration
(4) Conveyance
• Parties: There must be at least two parties in a sale. The person who
transfers the property is known as transferor or seller or vendor. The person
purchasing the property is known as transferee or purchaser or vendee.
➢ For constituting a valid sale, both the seller and purchaser must be competent on the
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date of sale. The seller must be competent to contract, i.e., he must be of sound mind
and must have attained the age of majority. Besides that, he must be the owner of
the property which he is going to sell. He must have a legal title to it, only then he
can sell the property. For example, a tenant does not have the power to sell
the tenanted property.
➢ The purchaser must not be disqualified by any law for the time being in force
from purchasing a property. For example, under section 136 of the TP Act, a
judge, a legal practitioner or an official of court is incompetent to purchase
actionable claims.
➢ The seller and buyer may be natural persons or juristic persons, e.g.
corporations or other legal persons.
➢ K. Sivanandam v. Maragathammal (AIR 2013 Mad 30): The property was owned
by a Hindu, and on his death, his wife married a Christian and got converted
into Christianity, and then disposed of the property. The Court held that she
was not, by reason of conversion, deprived of her right of inheritance. The
sale was valid.
➢ Jagtar Singh v. Gurmit Singh (AIR 2006 P&H 62): The defendant and plaintiff
were real brothers and were residing jointly in a single house. The defendant
executed an agreement to sell his share in the house of his brother (plaintiff).
Subsequently he sold his share to another purchaser. There was nothing on
record to show that the subsequent purchaser had knowledge about the
earlier sale agreement. Hence, he was a bona fide buyer. The plaintiff was
allowed to recover back the earnest money which he had paid to his brother.
➢ Annamalai v. Shanmugam (AIR 2008 Mad 2889): The seller (first defendant)
was the Karta of the Hindu joint family and the second defendant was a
minor. The property sold was family property. The sale was for the welfare of
the family and the minor, though there was no financial necessity. The sale
was held to be valid.
➢ Ratanbai v. Basantibai (AIR 2008 MP 1172): Two sisters were the only legal
heirs of their deceased father. They inherited his property as class I heirs. The
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husband of one of them purchased the property from their widowed mother
taking advantage of her old age. It was held that the widow alone had no right
to inherit the property. The sale was not binding on class I heirs to the extent
of their shares.
• Subject-matter: The TP Act deals with the transfer of immovable
properties only. Therefore, the transfer of ownership must be in some
immovable property only. (The Sale of Goods Act, 1930 deals with sale of
movable properties)
• Money-Consideration: The money consideration, i.e., the price is the
essential element of a sale. At the time of contract of sale, the price must be
ascertained for which the property is going to be transferred. The price may
be paid at the time of execution of sale, before it, in advance or after the
sale.
➢ Non-payment of sale consideration does not vitiate a sale if it is
promised to be paid. But if an assertion is made that the
consideration has already been paid and it is found to be incorrect,
the transaction does not amount to a sale.
➢ In case of an agreement to sell immovable property, the law requires
that it must with certainty identify the property agreed to be sold and
the price fixed as consideration paid or agreed to be paid. Price has
not been defined in the Transfer of Property Act but that expression
has to be understood in the same sense as is understood in the Sale of
Goods Act. (Misahul Enterprises v. Vijaya Srivastava, AIR 2003 Del
15)
➢ For the validity of a sale, inadequacy of consideration is not any
relevant factor. Even where the price or consideration is found by the
court to be less than the market value of the property, the sale is held
to be valid. (Hakim Singh v. Ram Sanchi, AIR 2001 All 231).
➢ The consideration must be reasonable. Where the consideration is
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found to be too low or illusory, the court may infer fraudulent or
sham transfers. The court may even presume fraud, coercion or
mistake and the sale may be invalidated on any of these grounds.
➢ Payment of price is not a necessary condition for the validity of a sale,
i.e., it is not sine qua non for the completion of a sale. As the Act itself
lays down that the price may have been paid or promised to be paid
or partly paid and partly promised to be paid. If from the recitals in
the sale deed it appears that title would pass after payment of full
consideration, the inference would be that until the consideration is
paid, there is no transfer. Otherwise the document must be held to be
one conveying title.
➢ The real test is the intention of the parties. The intention is to be
gathered from the recital in the sale deed, conduct of the parties and
the evidence on record. Sale deed: It is an instrument in writing
which transfers the ownership of the property or properties in
exchange for a price paid/consideration. This is a document that
requires to be registered compulsorily.
➢ Transfer without consideration is gift.
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Delivery of possession means transferring of physical control of the
property.
Registration of sale-deed: Where the value of the tangible property is Rs.
100 or more, the sale of such property requires the registration of the deed.
Where the property is intangible immovable property of any valuation, it will
require registration for completion of sale.
# Intangible immovable: It generally refers to statutory creations such as
copyright, trademarks, or patents. It excludes tangible property like real
property (land, buildings, and fixtures) and personal property (ships,
automobiles, tools, etc.).
The transfer of an immovable property can only be effected by executing a
registered document, mere making of agreement of sale or execution of
power of attorney would not transfer the right, title or interest in an
immovable property.
In Bishundeo Narain Rai v. Anand Devi, AIR 1998 SC 3006, the Supreme
Court held that a combined reading of sections 8 and 54 of the Transfer of
Property Act suggests that through an execution and registration of a sale-
deed, the ownership and all interests in the property pass to the transferee,
yet that would be on terms and conditions embodied in the deed indicating
the intention of the parties. The intention of the parties can be gathered
from the averments in the sale-deed itself or by other attending
circumstances.
Where the sale-deed was executed by the Karta of a Hindu joint family when
the plaintiffs were minors, it was held that the plaintiffs had the right to
challenge the deed in toto.
Contract for sale:
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or charge on, such property.
• A sale may be preceded by a contract of sale. In a contract of sale of an
immovable property, the parties decide that on what terms and conditions
the sale will be effective.
• The question arises that does a contract of the sale of immovable property give any
right in the property to the purchaser?
• The Section 54 says that a contract of sale does not of itself create any
interest in or charge on such property. The English law in this respect is
different. In English law, a contract for sale transfers an equitable estate to
the purchaser, but, this rule is not applicable in India. In India, the purchaser
may sue for the specific performance of the contract and he may also
enforce the obligation arising out of the contract against the transferees.
Therefore, if the purchaser has paid some price, he may acquire a charge
upon the property for the money paid by him and he becomes entitled to
get it back.
• Where the charged immovable property is converted into another property
or money, the charge will fasten on the property or money into which the
conversion has taken place (Delhi Development Authority v. Skipper Construction
Co. (P) Ltd., AIR 2000 SC 573).
• The contract for sale is merely a document creating a right to obtain another
document i.e. duly executed sale-deed.
• A contract for sale does not confer any title in the immovable property. If a
person entered into possession of immovable property under contract of
sale and is in peaceful and settled possession of property with the consent of
the person in whom the title vests, he is entitled to protect his possession
against the whole world except a person having a better title than what he or
his vendor possesses. If he is in possession of
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property in part-performance of contract of sale and requirement of section
53A are satisfied, he may protect his interest even against the true owner
(Ramesh Chandra Ardawatia v. Anil Panjawani, AIR 2003 SC 2508)
Contingent Agreement
In Tara Devi v. Raj Shekhar, AIR 2007 All 143, a portion of the land in a residential
colony was earmarked as a park. The contract between the vendor and residents of
the colony was that the land would remain reserved for beneficial enjoyment of all
residents of the colony. Even so the vendor transferred the land to a third person.
The transfer was held to be voidable.
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charge upon the property in favour of party to the contract.
3) A sale creates right in rem whereas a contract of sale creates right in personam
where only the promisee (purchaser) can compel the seller-
promisor or a subsequent purchaser with notice to execute the promised
conveyance.
4) A sale requires a compulsory registration where the sale is of tangible
immovable property of Rs. 100 or more, a reversion and any intangible thing
whereas a contract of sale does not require any registration.
3.2 Rights and liabilities of buyer and seller before and after sale (Section 55)
This section deals with rights and liabilities of both the buyers and sellers. The
obligations imposed by this section are covenants (agreements) and are in the
nature of statutory obligations.
Section 55 says that in the absence of a contract to the contrary, the buyer and the
seller of immovable property are subject to the liabilities, and have rights
mentioned in the rules mentioned in Section 55.
Rights and liabilities of the buyer and seller can be categorized into two:
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➢ The care should be such as an owner of ordinary prudence would
take.
(vi) Duty to pay all outgoings (public charges and rent accrued) – Section 55(1) (g)
➢ Seller is bound to pay –
(a) all public charges & Rent (like revenue, taxes etc.) accrued in
respect of property up to the date of sale.
(b) the interest on all encumbrances on the property due on that date
➢ Seller is bound to discharge all encumbrances, except the property is
sold subject to all encumbrances.
(B) After Completion of Sale
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case covenant is not required.
➢ Covenant is annexed to, and shall go with the interest of the
transferee as such.
(iii) Duty to deliver title-deeds on receipt of price – Section 55 (3)
➢ The duty of the seller is to deliver the title-deeds when whole of the
purchase price has been paid.
(a) Where the seller retains any part of the property comprised in
the deed, he is entitled to retain all of the documents.
(b) Where the whole of property is sold to different buyers, the
buyer of the lot of greatest value is entitled to such documents.
(c) But in case (a), the seller and in case (b), the buyer of the lot of
greatest value, is bound, upon every reasonable request by the
buyer, or by any of the other buyers, to produce the said
documents and furnish such true copies thereof, at the cost of
the person making request.
(d) In the meantime, the seller, or the buyer of the lot of greatest
value, as the case may be, shall keep the said documents safe,
uncancelled and undefaced, unless prevented from so doing by
fire or other inevitable accident.
(i) Duty to disclose the facts materially increasing the value of property – Section 55 (5) (a)
➢ The buyer is bound to disclose to the seller any fact of which the seller is
not aware of, but buyer is aware of such fact, which materially increase the value
of the property before completion of the sale.
Summers v. Griffiths (1866) – An old lady contracted to sell a property
at much less price believing that her rights in the property were not
absolute. The buyer had knowledge of the fact that the lady’s interest in
the property was perfect and absolute but he did not disclose it to the
lady. He was held liable for fraud and the sale was set aside.
(ii) Duty to pay the price – Section 55 (5) (b)
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➢ The buyer is bound to pay or tender the purchase money to the seller
or to such person as he directs at the time and place of completing
the sale.
➢ The buyer may retain out of the purchase money, the amount of any
encumbrances on the property existing at the date of sale, and shall
pay the amount so retained to the persons entitled.
(B) After Completion of the Sale
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✓ to the extent of the seller’s interest in property
✓ for the amount of any purchase-money paid by the buyer
✓ in anticipation of the delivery and for interest on such amount
➢ And when he properly declines to accept delivery, he is also
entitled to:
✓ the earnest money (if any) and for the costs (if any)
✓ awarded to him of a suit to compel specific performance or
to obtain a decree for its rescission
(B) After Completion of Sale
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 mortgage-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.
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draw upon X. Here although C has paid full price for X to A in taking it free from
encumbrance, B still has a right to proceed against X unless he has agreed with A
and C on payment of a part of the mortgage-debt, otherwise he would have no
right to do so. In case there is no such agreement, if B proceeds against X as the
last resource, C will be entitled to claim from A the amount actually realised by B
from C.
RELEVANT TERMS
1. In the pledge, the possession of the asset is transferred, but in the case
of hypothecation, possession lies with the debtor only.
2. In the pledge, when the borrower default in payment, the lender can exercise his
right to sell the asset to recover the debt amount. Conversely, in hypothecation,
the lender does not have the possession of goods so he can file a suit to realize his
dues to take the possession first and then disposing off them.
Lease and tenancy: In tenancy , one can merely possess it, but in case of lease,
one is more than in mere possession, one can have possession as well as might do
the erections
A licence is merely a personal right and does not amount to any interest in
immoveable property. A licence does not transfer any interest in the property and
the licence has no right of possession.
Easement: It is an interest or right exercised over others land for the beneficial
object or use of that land. Easement cannot be transferred. When dominant
heritage is transferred then the easement can also be transferred.
Earnest money: is a deposit made to a seller indicating the buyer's good faith in
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an arrangement. Often used in real estate transactions, earnest money allows the
buyer additional time when seeking financing. Earnest money is typically held
jointly by the seller and buyer in a trust or escrow account.
Advance money: A payment on an obligation that is paid well in advance. For
example, if one pays May's rent in April, the payment is an advance payment.
Often, though not always, the advance payment results in a discount on the
amount owed. It is also called a payment in advance.
Such incidents include, when the property is land, the easements annexed thereto, the rents and
profits thereof accruing after the transfer, and all things attached to the earth; and, where the
property is machinery attached to the earth, the movable parts thereof; and, where the property is a
house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks,
keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where
the property is a debtor other actionable claim, the securities therefor (except where they are also for
other debts or claims not transferred to the transferee), but not arrears of interest accrued before the
transfer; and, where the property is money or other property yielding income, the interest or income
thereof accruing after the transfer takes effect.
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Holland v Hodgson (1872) LR 7 CP 328
The owner of a mill purchased some looms for use in his mill. They were attached
to the stone floor by nails driven into wooden beams. They could quite easily be
removed. The owner then mortgaged the mill and failed to keep up the payments
and the mill was repossessed. The question for the court was whether the looms
were fixtures forming part of the land or whether they remained chattels.
Held: The looms had become fixtures and thus formed part of the land mortgaged.
The Court introduced the degree and object of annexation test.
Degree of Annexation Test: It was held that an article which is affixed to the land, even
slightly, is to be considered as part of the land, unless the circumstances are such as
to show that it was intended to all along continue a chattel, the onus lying on those
who contend that it is a chattel. Under this test, the question to be asked is
whether the chattel was attached to the land
to enable the object to be better enjoyed as a chattel, or for the more convenient
use of the land.
Object of Annexation Test: The Court observed that the blocks of stone placed one
on the top of another without any mortar or cement for the purpose of forming a
dry-stone wall would become part of the land, though the same stones, if deposited
in a builder's yard and for convenience sake stacked on the top of each other in the
form of a wall, would remain chattels.
The issue in this case was whether items attached to fixtures become themselves
fixtures.
The issue in this context was whether the fact that the machines were attached to
the driving mechanism which itself was attached to the property caused the
machines to be fixtures.
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It was held that the printing machines remained chattels. This position was reached
on the basis that the printing machine and the driving device were separate devices
and it would be wrong to hold that the attachment to the driving device, which
could easily be disconnected, had the effect of altering the characteristic of the
printing machine to the extent that it would be considered attached to the
property. Doing so would give too much importance to the connection at the
expense of the machine’s characteristic.
Harish Chandra Singh Deo & Anr. v. Bansidhar Mohanty & Ors., AIR 1965
SC 1738.
The first respondent lent money to the appellant and obtained a mortgage deed
from him in the name of the second respondent. The first respondent was himself
one of the two attesting witnesses. On the failure of the appellant
to repay the amount, the first respondent instituted a suit and the suit was decreed
by the High Court. In his appeal to the Supreme Court, the appellant contended
that:
A person who has lent money, for securing the payment of which a mortgage deed
was executed by the mortgagor, but who was not a party to the deed, could be an
attestor.
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There is a distinction between a person who is a party to a deed and a person who,
though not a party to the deed is a party to the transaction and the latter is not
incompetent to attest the deed. The object of attestation is to protect the executant
from being required to execute a document by force, fraud or undue influence.
The only point that arose in this second appeal was whether the Courts before
were correct in holding that the mortgage deed in suit was not attested in the
manner required by law.
The mortgage deed bears the signature of the executor and in the margin of the
deed there are the names of two persons purporting to be witnesses since each
name is preceded by the letter 'g' (gawah). There is a fourth name in the margin,
namely, Thakur Prasad; but this name is not preceded by the letter 'g' but by the
latter 'd' (dastkhat) showing that Thakur Prasad did not purport to
sign as a witness of the deed. The evidence shows that Thakur Prasad was in fact
the scribe of the deed.
As regards the two signatures of the persons who purport to have signed as
witnesses it has been found that one of them, namely Maheshar Ram did not sign
his name himself and that there was no proof that he had authorised the scribe to
sign for him as an attesting witness. For this reason, the lower appellate Court held
that Maheshar Ram was not a valid attesting witness. We may mention that the trial
Court found that Maheshwar Ram was not even present at the execution of the
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deed but the lower appellate Court did not come to a finding of fact on that point.
The lower appellate Court proceeds upon the view that the other witness Ramjan
Ram, whose name appears as an attesting witness, may be regarded as a valid
attesting witness, but the document cannot be considered to have been duly
attested because Thakur Prasad, who is the only other person who could be
regarded as an attesting witness did not sign the document as a witness but signed
it as a scribe. We have already pointed out that Thakur Prasad, as the scribe of the
deed, must have intended to make a distinction between himself and the other two
marginal witnesses since he only purports to have signed the deed, whereas the
other two marginal witnesses purport to have signed the deed as witnesses.
Although the scribe of a deed can be an attesting witness we do not think that he is so in the
present case since it appears that he did not intend to sign the deed as an attesting witness.
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Jugal Kishore Saraf v. Raw Cotton Ltd. AIR 1955 SC 376
It was a case where during the pendency of a suit for recovery of a debt from the
defendant, the plaintiff had transferred to a third person all the books and other
debts.
The Court held that the position of the transferor vis-a-vis the transferee is nothing
more than that of a benamidar (he appears to be the owner/ only to show to
others) for the latter and when the decree is passed for the recovery of that debt it
is the latter who is the real owner of the decree.
When the transferee becomes the owner of the decree immediately on its passing,
he must, in relation to the decree, be also regarded as person claiming under the
transferor.
The Court observed that the executing Court can apply its mind to the simple
equitable principle which operates to transfer the beneficent interest in the after-
acquired decree under Section 146. As the assignee from the plaintiff of the debt
which was the entire subject matter of the suit the transferee was entitled to be
brought on record and must, therefore, be also regarded as a representative of the
plaintiff within the meaning of Section 47 of the CPC.
In this case, the Supreme Court also held that the cardinal rule of construction of
statutes is to read the statute literally, that is by giving to the words used by the
legislature, their ordinary, natural and grammatical meaning. If, however, such a
reading leads to absurdity and the words all susceptible of another meaning the
court may adopt the same. But if no such alternative construction is possible, the
court must adopt the ordinary rule of literal interpretation
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given in the General Clauses Act, Registration Act and Transfer of Property Act,
show that things attached to the earth are "immovable property." The term
"attachment" means "rooted in the earth as in the case of trees and shrubs." Thus,
while trees rooted in the earth are immovable property as being things attached to
the earth by reason of the definition of the term "immovable property" in various
statutes namely the General
Clauses Act and the Orissa General Clauses Act and the Registration Act
read with the definition of the expression "attached to the earth" given in the
Transfer of Property Act, standing timber is "movable property" by reason of its
exclusion from the definition of "immovable property" in the Transfer of Property
Act and the Registration Act and by being expressly included within the meaning
of the term "movable property" given in the Registration Act.
The term "standing timber" has been judicially recognised as "a tree which is in a
state fit for the purposes of being used as wood for buildings,
uses, bridges, windows, whether on the tree or cut and seasoned", that is, a tree
meant to be converted into timber so shortly that it could already be looked upon
as timber for all practical purposes even though it is still standing. Thus, trees
which are ready-to be felled would be standing timber and therefore, "movable
property". While trees (including bamboos) rooted in the earth being things
attached to the earth are immovable property and if they are "standing timber", are
movable property, trees (including bamboos) rooted in the earth which are agreed
to be severed before sale or under the contract of sale are not only movable
property but also goods.
Shyamal Ranjan Mukherjee v. Nirmal Ranjan Mukherjee AIR 2006 All 568
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under him from parting with or disposing of his interest in the property, the
condition or limitation is void, except in the case of a lease where the condition is
for the benefit of the lessor or those claiming under him: PROVIDED that
property may be transferred to or for the benefit of a woman (not being a Hindu,
Muhammadan or Buddhist), so that she shall not have power during her marriage
to transfer or charge the same or her beneficial interest therein.
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.
Illustration: A transfers property of which he is the owner to B in trust for A and his intended
wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended
marriage for life, and after his death for A's second son. The interest so created for the benefit of
the eldest son does not take effect, because it does not extend to the whole of A's remaining interest
in the property.
• Transfer to unborn person: The TP Act deals only with the transfers of property
between living persons. An unborn person means a person not in existence
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even in the mother’s womb. A child in the mother’s womb is considered to be a
competent transferee. Therefore, the property can be transferred to a child in
mother’s womb because the child is existing at that time but not to an
unborn person who is not even existing in mother’s womb. Every transfer
of property involves transfer of interest. As soon as the property is
transferred, the transferor is divested of that interest and the interest is
vested in the transferee. For vesting the interest, therefore, it is necessary that the
transferee must be in existence. Otherwise the interest will remain in abeyance till
the transferee comes into existence. This is against the very concept of
interest.
• Section 13 provides that the property cannot be transferred directly to an unborn
person but it can be transferred for the benefit of an unborn person.
Two conditions are required to be fulfilled if the property is transferred for
the benefit of an unborn person:
(i) Prior life interest must be created in favour of a person in existence at
the date of transfer.
(ii) Absolute interest must be transferred in favour of unborn person.
Prior interest: It is necessary for a valid transfer of property to an unborn
person that before the transfer actually takes place, a prior interest must be
created in favour of a living person on the date of transfer. The unborn
person must be in existence when the prior interest comes to an end. After
the death of the person who had life interest, the property would ultimately
pass to the unborn person, who will by that time have come into existence.
For example, A transfers his property to X for life, then to Y for life and
then to Z for life and thereafter to the unborn child of Z. Here X, Y, Z are
living persons. The property may be given to more than one living persons
successively for life before it vests in the unborn child ultimately.
In Sridhar v. N. Revanna (AIR 2012 Kant 79), a property was transferred by
way of gift deed in favour of the donor’s grandson. Thereafter the property
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was to be vested in male children of the grandson. The Court said that the
gift deed created interest in favour of the grandson and absolute right in
favour of unborn sons. The condition of the gift restraining alienation was
held to be not void. Alienation of the property by the donee after birth of
his sons was improper. The sons were held entitled to the sale consideration
received by their father from purchasers.
Absolute interest: It is further necessary that whole of the remaining interest of
the transferor in the property must be given to the unborn person. Only
absolute interest may be transferred in favour of the unborn person and not
limited or life interest, i.e., the whole of the remaining interest is the entire
interest of the transferor less the prior life interest carved out of the
ownership.
In the illustration to the section, the transfer to unborn person (eldest son)
becomes void because it does not give the whole of A’s remaining
interest in the property to unborn person, only a life interest is given to the
unborn person.
In brief, Section 13 provides for the following:
No transfer of property can operate to create an interest which is to take effect after the life time of
one or more persons living at the date of such transfer, and the minority of some person who shall
be in existence at the expiration of that period, and to whom, if he attains full age, the interest
created is to belong.
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(2) Where the unborn person is in womb at the expiry of the last prior
interest, the period of gestation plus his minority.
For example, A transfers certain properties to B for life and then to C for
life and then to an unborn person when he attains the age of majority. B and
C are living at the date of the transfer and the unborn, the ultimate
beneficiary, is not in existence even in the mother’s womb. The last prior life
interest is with C. When C dies, the contemplated unborn must be in
existence either as a born child or unborn in mother’s womb. The maximum
period up to which the vesting of property in unborn can be postponed
would be: In case of a born child, life of C plus till the child attains the age
of majority, and in case of a child in mother’s womb, life of C plus period of
gestation plus period of minority.
Exceptions to Section 14 (Rule against Perpetuities)
If, on a transfer of property, an interest therein is created for the benefit of a class of persons with
regard to some of whom such interest fails by reason of any of the rules contained in sections 13
and 14, such interest fails in regard to those persons only and not in regard to the whole class.
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• Transfer to a class of persons: Section 15 lays down that if in a transfer of
property, an interest is created for the benefit of some class of persons, but
due to applicability of either section 13 (transfer to an unborn person) or
section 14 (rule against perpetuity), this interest becomes unavailable to
some persons of that class, then, in such a case, the
transfer will be invalid only for those persons and not for others. The
transfer will be valid for other persons of the class.
• What is a class of persons? – Generally a number of persons are particularly said
to form a class when they can be designated by some general name as
“children”, “grandchildren”, “nephew” etc. In legal sense, the question
whether a gift is one to a class depends, not on those considerations but
upon the mode of gift itself. For example, the gift being that of one
aggregate sum to a body of persons, uncertain in number at the time of the
gift, to be ascertained at a future time, and who are all to take in equal or in
some other definite proportions, the share of each being dependent upon
the ultimate number of persons.
Section 16: Transfer to take effect on failure of prior interest Applied
only in case of transfer to unborn persons, i.e., Sec 13 &14)
Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the
benefit of a person or of a class of persons fails in regard to such person or the whole of such class,
any interest created in the same transaction and intended to take effect after or upon failure of such
prior interest also fails.
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• Transfer when prior interest is void: A valid transfer which is subsequent to and
dependent upon a void transfer is itself rendered void. Section 16 provides
that where an interest created for the benefit of a person or of a class of
persons fails due to reasons mentioned in sections 13 and 14 (transfer in
favour of an unborn person and rule against perpetuity respectively), any
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other interest created in the same transaction which is to take effect after the
prior interest, also fails.
• Prior interest void only due to sections 13 and 14: This section becomes applicable
only when the prior interest is void only due to rules contained in either
section 13 or 14 and not otherwise.
In Girish Dutt v. Datadin, (1934) 9 luck 329, A made a gift to her nephew’s daughter
B for her life and then to B’s male descendants absolutely, if she had any. But if
she had no male descendant then to B’s daughter without the power of alienation.
In case B had no descendant, male or female, then to her nephew, Datadin. B died
without any child. It was held that as the gift to B’s
nborn daughters was a limited interest only, therefore transfer to nephew which
was dependent upon prior interest also failed.
Where, on a transfer of property, an interest therein is created absolutely in favour of any person,
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but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a
particular manner, he shall be entitled to receive and dispose of such interest as if there were no
such direction.
Where any such direction has been made in respect of one piece of immoveable property for the
purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section
shall be deemed to affect any right which the transferor may have to enforce such direction or any
remedy which he may have in respect of a breach thereof.
According to Section 19, unless a contrary intention appears from the terms of
transfer, a person gets a vested interest when the interest is created in his favour -
Where it is to take effect forthwith: The interest created in favour of the transferee is
vested where it is specified that it is to take effect forthwith, i.e., immediately,
without delay. Where a deed contains such a declaration clearly, the deed conveys
vested interest alone.
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On the happening of an event: The interest is a vested interest where the operation of
the transfer is made to depend upon some specified certain event. The event must
be clearly specified, explained and it must be certain to happen. For example, death
of a person is certain to happen, likewise sunset and sunrise are bound to happen.
For example, A says to B, I will give you my property when C dies. Although it is
unlawful, it is just to explain the concept of vested interest. Here B is a human
being. The day C dies, B gets the vested interest in the property. Another example:
A says to B that I will give you my property when you marry C. Until B marries C,
B has a contingent interest in the property. The day B marries C he has a vested
interest in the property.
Contrary Intention: The grantor may specify the time of vesting as section 5 provides
that a transfer may not be only in the present but also in the future. However, the
time of vesting cannot be beyond the period allowed by the rule against perpetuity.
Death of Transferee: Section 6 provides that when an interest is vested, it becomes the
property of the transferee and he can transfer it even before he has obtained
possession
(i) A Vested Interest does not depend upon fulfilment of a condition and it
creates a Present and Immediate Right. The enjoyment may be postponed to
a future date.
(ii) A Vested Interest is not defeated by the death of the transferee before
obtaining possession. The interest passes on to the heirs of the transferee.
(iii) A vested Interest is transferable as well as heritable.
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Section 20: When unborn person acquires vested interest on transfer for his
benefit - Where, on a transfer of property, an interest therein is created for the
benefit of a person not then living, he acquires upon his birth, unless a contrary
intention appears from the terms of the transfer, a vested interest, although he may
not be entitled to the enjoyment immediately on his birth.
Contingent Interest (Section 21)
(i) The specified uncertain event happens, the happening of which was a
condition for vesting of interest, or
(ii) The specified uncertain event does not happen, the non-happening of which
was a condition for vesting of interest and the event has become impossible
to happen.
In the case of a contingent interest, the interest becomes vested only when either
of the condition is fulfilled. For example, where A makes a gift to B provided X
survives the age of 25 years, the interest of B is contingent. Where A makes a gift
to B provided X does not survive the age of 25 years, the interest of B again is
contingent.
(a) The happening or non-happening of the event depends upon the will and
desire of the parties like marriage or payment of a sum of money.
(b) The specified event does not depend upon the will of the parties like death
of a person on reaching a certain age.
Main characteristics of a contingent interest
Section 35 states that when a party transfers a property over which he does not
hold any right of transfer and in the same transaction the benefit is conferred upon
the original owner of property, such title holder (original owner) must elect his
option either to validate such transfer or reject it. In case of rejection, the benefit
shall be relinquished back to the transferor subject to the following:
(a) where the transfer is gratuitous (i.e. without any charge), and the transferor
has, before the election, died or otherwise become incapable of making a
fresh transfer,
(b) in all cases where the transfer is for consideration.
For example, A owns a property that is worth Rs. 800. B professes to transfer the
same to C through the Rs. 1000 instrument to A. But A, the owner elects (opts) to
retain his property and thus, forfeits gift of Rs. 1000. Thus A has the right of
accepting or rejecting the transfer proposal.
When two persons mutually transfer the ownership of one thing for the ownership
of another, neither thing or both things being money only, the transaction is called
an "exchange".
Who is an ostensible owner? The ostensible owner is not the real owner of the
property and does not have any authority to make the transfer. Nevertheless, as per
this section, the transaction entered into by the ostensible owner shall be binding
on the real owner.
• This law derives from the Rule of Estoppel u/s 115 of The Indian Evidence
Act. This section provides that no one shall be allowed later on to deny the
truth of a declaration or act that permits another person to believe a thing to
be true and to act upon such belief.
• By extension, an action or inaction (omission) or some declaration of the
real owner is held responsible for permitting the buyer to consider a third
party to be the owner of the property, ostensibly.
• The principle behind this section is that where it is imperative that one of
the two innocent persons must suffer from the fraud of the third party, the
loss should fall on him who has created or had the opportunity to prevent
the fraud.
• In this scenario, in cases of a joint family property, the purchaser must take
extra care to ensure that the person selling the property is entitled to do so.
Such a person conveying the property is not an ostensible owner.
• who is not an ostensible owner: Temporary control over the property for
some specific purpose entrusted by the real owner or, holding a property as
an agent or as the guardian of minor’s property or any other fiduciary
capacity does not make one an ostensible owner. For instance, the person
who manages an idol or is its trustee is not the ostensible owner of the
property so held by him.
• Differentiating between an ostensible owner and real owner is difficult
because an ostensible owner is in possession of all the characteristics of a
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real owner except the legal ownership of the property. Thus, establishing
ostensible ownership of the property is the Court’s responsibility.
Essentials:
In order to constitute a lis pendes, the following elements must be present:
uch transfer must affect the rights of the other party that may ultimately accrue
under the terms of the decree or order.
Exception:
i) Transfer can be done only with the permission of the court
Period of pendency: Starts from the date of submission of plaint or the institution
of suit (i.e., when the proceedings start) till the implementation of the final
decree or till the disposal of all appeals related to the judgement
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FRAUDULENT TRANSFER SECTION 53:
Where a person transfers his property so that his creditors shall not have anything
out of his property, the transfer is called a fraudulent transfer. A debtor in order to
defeat or delay the rights of a creditor, may transfer his property to some person,
who may be his relative or a friend. The law does not allow this.
Section 53 embodies this principle. It states:
(1) Every transfer of immoveable property made with intent to defeat or delay the
creditors of the transferor shall be voidable at the option of any creditor so
defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and
for consideration.
Nothing in this sub-section shall affect any law for the time being in force relating
to insolvency.
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• The transfer is valid so long as the creditor does not challenge it in a court
of law and gets a declaration that the transfer is invalid.
• A suit instituted by the creditor to avoid a transfer on the ground that it has
been made with intent to defeat or delay the creditors of the transferor or
shall be instituted on the behalf of , or the benefit of all the creditors.
• Once the creditor sues the debtor and says that the debtor has the intention
to deceive him, the transfer can be declared invalid by the court.
• The creditor has to satisfy the Court that there was an intention on the part
of debtor to defeat his rights
• If he does not prove this, then the creditor will fail and the transfer is fail.
(2) Every transfer of immoveable property made without consideration with intent
to defraud a subsequent transferee shall be voidable at the option of such
transferee.
For the purposes of this sub-section, no transfer made without consideration shall
be deemed to have been made with intent to defraud by reason only that a
subsequent transfer for consideration was made.
Example: A contract of sale of land has been entered into between A and B. The
transferee has paid the price entering into possession and is willing to carry out his
contractual obligations. As registration has not been effected A, the transferor,
seeks to evict B from the land. Can he do so? No, B will not be allowed to suffer
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simply because the formality of registration has not been through. The legislation
grants some relief to such a transferee under Section 53A, which embodies the
doctrine of part performance.
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Essentials:
94
securing -
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Mortgagor: The person who transfers his property i.e. Transferor is called a
Mortgagor.
Essentials of Mortgage
1. Simple Mortgage
2. Mortgage by conditional sale
3. Usufructuary Mortgage
4. English Mortgage
5. Mortgage by deposit of title-deeds
6. Anomalous Mortgage
Simple Mortgage [Section 58 (b)]
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Section 58 (b) says that where –
Remedy to the mortgagee: In the case of simple mortgage, the mortgagee has twofold
security. Firstly, the mortgagor takes personal obligation and secondly, the property
which may be sold in case the mortgagor fails to pay.
In this type, mortgagor first sells the property, in favour of mortgagee, with a
condition to revert it back to him, if mortgagor repays his loan with interest, and if
he fails do it then mortgagee will become absolute owner.
Section 58 (c) says that where, the mortgagor ostensibly sells the mortgaged
property-
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mortgagee by conditional sale:
• Ostensible sale means a sale which apparently looks like a sale but in reality
it is not a sale but a security for debt.
• Remedy to the mortgagee: The remedy open to the mortgagee by conditional sale
is by foreclosure of the loan and not by sale.
Where a person –
(i) in the towns of Calcutta, Madras, Bombay or any other town specified by
the State Government in this behalf,
(ii) delivers to a creditor or his agent documents of title to immovable property,
(iii) with intent to create security, thereon
such a transaction is called a mortgage by deposit of title-deeds or equitable
mortgage.
This is a special kind of mortgage because here the execution of mortgage deed is
not necessary. Mere deposit of title deeds of an immovable property by mortgagor
to mortgagee is sufficient.
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The rule of equity is that mere deposit of a document of title without writing or
without word of mouth, will create a charge upon the property which is referred in
the deed.
The word ‘usufruct’ means the right to use and take advantage of other’s property.
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possession or he is permitted to repay himself out of the rents and profits of such
property.
• The mortgagor is entitled to redeem the property when the amount due is
personally paid or the debt is discharged bt rents and profits received by the
mortgagee. (Section 62)
• No time limit is fixed for the repayment.
• Where the mortgage is for Rs. 100 or more, it must be registered but where
it is less than Rs. 100, it may be by a registered deed or by delivery of
property.
Zur-i-peshgi Lease: “Zuri-i-peshagi” means a payment in advance or a lease for a
premium. Where the right of enjoyment of an immovable property is transferred
for a fixed period of time and the rent is paid in advance in lump sum, the
transaction is called Zuri-i-peshagi lease.
The usufructuary mortgage and Zur-i-peshagi lease appear to be the same but there
are some differences between them:
(i) In a Zur-i-peshagi lease, there is no existence of debt between the lessor and
the lessee but in usufructuary mortgage, existence of a debt is must.
(ii) In Zur-i-peshagi lease, specific time limit is given after which the lessee is to
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give back the possession to the lessor. However, in a usufructuary mortgage,
there is no fixed time limit in which the possession is to be given back.
Remedies of a usufructuary mortgagee: A usufructuary mortgagee cannot sue the
mortgagor neither for the sale nor for foreclosure. His remedy is only to retain
possession of the property till the mortgage money is paid-up and to appropriate
the rents and profits of the property till his principal money and interest due both
are paid in accordance with the mortgage-deed. If the usufructuary mortgagee loses
his possession, he may sue to obtain the possession.
When a mortgage takes place, the mortgagor has the right to get back his property
when he pays back the mortgage amount. This is known as the right of redemption
and arises out of equity. Anything which obstructs the right of the mortgagor to
redeem his property is void, and such obstruction constitutes a clog on the right to
redemption. This is also known as the doctrine of a clog on redemption
DOCTRINE OF CLOG ON REDEMPTION
In the judicial pronouncement of Stanley v Wilde[2] (an English case), it was held by
the Court that a mortgage means transferring the interest in an immovable
property to a third party as security for the loan that the party has advanced. The
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security is redeemable by the transferor when he pays back the loan or discharges
his obligation. If any act is done, or any provision is there which obstructs the right
of redemption on payment of the debt or performance of the obligation, then it
acts as a fetter or clog on the equity of redemption and will be held as void. This
doctrine also follows the principle of “once a mortgage, always a mortgage.”
This means that there cannot be any covenant that modifies the character of the
mortgage and would bar the mortgagor to redeem his property on payment of the
loan. The doctrine of a clog on redemption is based on the principle of justice,
equity, and good conscience. The Court recognizes the fact that the party who
forwards the loan is in a dominant position than the person who takes the loan.
The law also recognizes the fact that the dominant party may insert a clause in the
agreement which can act as a barrier to the right of redemption. Such barrier in
exercising the right is struck down by the Courts as invalid so that the mortgagor
can exercise his right of redemption.
In the case of U. Nilan v. Kannayyan through Lrs,[3] The Court held that hardship
of one person should not act as an opportunity for some other person. If a person
is taking a loan by giving his property as security, the opposite party cannot exploit
him, and the Court seeks to protect the victim.
There are a few situations where it was held by the Court that the condition or covenant
acts as a clog on redemption.
However, only by the virtue of a long mortgage period, the mortgage wouldn’t be
considered as a clog. There should be a condition which gives an undue advantage
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to the opposite party for the mortgage to be considered as a clog. In the case of
Ramkhilawan Ashwasi v Mullo, There was a condition that the mortgage money
will be paid after 80 years and only of Baisakh. The Court opined that such a
condition was a clog.
2. Condition of sale of property
It was further stipulated that in case the mortgagor is unable to pay back the loan, the
property will be considered sold to the mortgagee permanently. The Court reached the
decision that these conditions acted as a clog.
In the judicial pronouncement of Kuddi Lal v. Aisha Begam, the Court allowed the
mortgagor to redeem the property by paying through her pocket and not by
transferring the property. The Court said that such alienation of the property would act
as a clog.
For example: In the case of default, the mortgagee charges compound interest,
instead of charging simple interest even when the original interest rate is extremely
high.
But, having only a high rate of interest does not mean that the condition will act
as a clog. There should be some undue influence of the dominant party over the
weaker party to constitute the stipulated condition as a clog on the right to
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redemption.
A mortgagee may avail some collateral benefit during the period of the mortgage, in
which case it’ll be held valid. The mortgagee can also avail some benefits after the
mortgage gets over, but in some cases, it may be considered as void and a clog.
Conditions:
There are no contrary conditions in the mortgage deed as to the time fixed
for repayment etc.
Mortgage money has become due but mortgagor has not got a decree of
redemption of the mortgaged property.
Mortgage money has become due but mortgagor has not paid or deposited
the amount. After the mortgage money has become due, the mortgagor can
pay off his debt in three ways:
Mortgagee should not be mortgagee of public works like canal, railway etc.
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However, when mortgagor fails to redeem the property, the mortgagee does not
become the owner of the property, he has to file a suit for recovery of the amount
due. The limitation period for instituting a suit is 12 years. The final decree in a suit
for foreclosure on the failure of defendant to pay all amounts due extinguishes the
right of redemption which has to be specifically declared. A mortgagee may hold
two or more mortgages executed by the same mortgagor. In respect of each of
such mortgages, he may have a right to obtain a decree of foreclosure. In case he
sues to obtain such a decree on any one of the mortgages, he will be bound to sue
on all the mortgages in respect of which the mortgage money has become due.
Section 81: of the Transfer of Property Act, deals with the doctrine of
Marshalling of securities.
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i) mortages them to one person,
For eg: Mr ‘A’ mortgages two of his properties namely; ‘1st’ and ‘2nd’ to Mr ‘B’.
Thereafter, Mr. ‘A’ mortgages property ‘2nd’ to Mr ‘C’. If the Mr ‘B’ mortgagee
prefers to proceed against ‘2nd’ property, then subsequent mortgagee Mr ‘C’ may
compel Mr ‘B’ to first proceed against ‘1st’ property to realize his dues. But later, if
Mr ‘B’ is unable to realize his dues from ‘1st’ property, then he may proceed
towards recovery of dues from ‘2nd’ property.
Exceptions:
Nothing in this section applies to the charge of a trustee on the trust-property for
expenses properly incurred in the execution of his trust, 2[and, save as otherwise
expressly provided by any law for the time being in force, no charge shall be
enforced against any property in the hands of a person to whom such property has
been transferred for consideration and without notice of the charge
The expenses incurred by the trustee are a charge upon the trust property but this
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charge, unlike other types of charges, cannot be enforced by the sale of the trust
property for it would have the effect of destroying the trust. Section 32 of the
Trust Act says that the trust may only reimburse itself for such expenses out of the
income of the trust estate and prohibit any disposition of the trust property
without previous payment of his expenses.
The second exception lays down that no charge shall be enforced against
any property in the hands of the person to whom such property has
been transferred for consideration and without notice of the charge.
Pledge – pledge is used when the lender takes actual possession of the property.
Say for example – You pledge your gold with the bank for a gold loan. The bank
takes the possession of gold and gives you money. So pledge is used only in the
case of movable assets. And the pledgee (lender) retains the possession of the
goods until the pledgor (i.e. borrower) repays the entire debt amount. In case there
is default by the borrower, the pledgee has a right to sell the goods in his
possession and adjust its proceeds towards the amount due. Another example
could be – Pledge of shares. So the key is to remember that Pledge means Gold
loan – movable asset – banker/lender takes possession.
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So the key is to remember that Mortgage means Housing loan – immovable asset –
borrower retains the physical possession.
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Consideration of lease – Premium
Acceptance of transfer by the lessee.
Lease must be made in the mode under Section 107.
Section 107 of the Act provides that a lease of immovable property from
year to year, or for any term exceeding one year or reserving a yearly rent,
can be made only by a registered instrument. All other leases of immovable
property may be made either by a registered instrument or by oral agreement
accompanied by delivery of possession. Where a lease of immovable
property is made by a registered instrument, such instrument or, where there
are more instruments than one, each such instrument shall be executed by
both the lessor and the lessee.
Lease and Licence
Lease is the transfer of the right of enjoyment of an immovable property whereas
the licence is the right of a person to use the land of another while it remains in the
possession of another.
After A returned back to India, he stayed in the flat. He took one of the keys of the
main door of the flat and took possession of one room of the flat. A made changes
in the fittings and equipments and allowed B to use them. Service charge was
reduced to Rs. 400. It was a friendly gesture.
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Associated Hotel of India v. R.N. Kapoor AIR 1959 SC 1262
There is a marked distinction between a lease and a licence. Section 105 of the
Transfer of Property Act defines a lease of immovable property as a transfer of a
right to enjoy such property made for a certain time in consideration for a price
paid or promised. Under sec 108 of the said Act, the lessee is entitled to be put in
possession of the property. A lease is therefore a transfer of an interest in land.
The lessee thus gets that right to the exclusion of the lessor. Whereas S. 52 of the
Indian Easements Act defines a licence as follows: ‘Where one person grants to
another, or to a definite number of other persons, a right to do or continue to do
in or upon the immovable property of the grantor, something which would, in the
absence of such right, be unlawful, and such right does not amount to an easement
or an interest in the property, the right is called a licence.’
The Supreme Court held that the following propositions may, therefore, be taken
as well-established:
Section 106 of the Transfer of Property Act, 1882 lays down a general rule that a
lease of immovable property for agricultural or manufacturing purpose shall
terminate on six months’ notice by either the lessor*2+ or lessee*3+, while fifteen
days is the time period in the case of a lease of immovable property for a purpose
other than agricultural one. Every notice under this section has to be in writing,
signed by or on behalf of the person giving it; either sent by post or is delivered
personally.
The purpose of the provision in sec. 106 is to terminate the relationship of lessor
and lessee before the lessor sues for possession. He has no right of entry till the
tenancy is disrupted. Further, the idea is that every lessee must have some
reasonable notice before he is asked to vacate the premises.[4]
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5.3 Tenancy at will, Tenancy by sufferance, Tenancy by holding over
(Section 116)
• The five years expire, but C continues in possession of the house and pays
the rent to A. So C's lease is renewed from month to month. In another
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example, assume A lets his house to B for the life of C. C dies, but B
continues in possession with A's assent. B's lease is renewed from year to
year.
(a) A lets a house to B for five years. B underlets the house to C at a monthly rent
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of Rs. 100. The five years expire, but C continues in possession of the house and
pays the rent to A. C’s lease is renewed from month to month.
(b) A lets a farm to B for the life of C. C dies, but B continues in possession with
A’s assent. B’s lease is renewed from year to year. COMMENTS Tenant at
sufferance A person who is a tenant at sufferance has no estate or interest in the
leasehold property. A tenant holding after the expiry of his term is a tenant at
sufferance, which is a term useful to distinguish a possession rightful in its
inception but wrongful in its continuance from a trespass which is wrongful both
in its inception and in its continuance. A co-owner can maintain a suit by himself
in ejectment of a trespasser or a tenant at sufferance
5.4 RIGHTS AND LIABILITIES OF LESSOR AND LESSEE
(SECTION 108),
In the absence of a contract or local usage to the contrary, the lessor and the
lessee of immoveable property, as against one another, respectively, possess
the rights and are subject to the liabilities mentioned in the rules
1. Breach of Express Condition: When the lessor imposes upon lessee any express
condition and lessee fails to perform that condition, there is a breach of condition
by lessee. The lessee’s right under the lease is lost upon breach of such condition.
In Raghuram Rao v Eric P. Mathias, SC held hat Section 111(g) itself requires that
for the forfeiture of lease, the lessee should commit breach of an express condition
which must provide that on breach thereof, the lessor may re-enter.
2. Disclaimer or denial of the landlord’s title: In the second place, without any
express condition contained in the lease, a case for the forfeiture arises when the
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lessee repudiates the landlord’s right and sets up title in himself or in third person
(for example, by executing a kabuliyat in his favour ). Such conduct on the part of
the lessee is sufficient to justify the landlord in forfeiting the lease. To work
forfeiture under this sub-clause, the denial must be unequivocal for the law leans
strongly against forfeiture. However, an omission to pay rent or even refusal to pay
does not constitute a disclaimer.
The principle of forfeiture is founded on the rule that a man cannot approbate and
reprobate at the same time. Since the consequence of applying the rule is very
serious, it must be held that the denial has to be clear and in unequivocal terms.
3. Insolvency
Insolvency of the lessee is another condition for the applicability of Sec111 (g)
even though it by itself does not forfeit the lease. There must be a stipulation
between the parties that the lessee’s right shall be lost in case of his insolvency and
lessor would be entitled to resume the possession. However, lease in such case is
not determined ipso facto. A written notice must be served by the lessor to lessee
regarding the same.
WAIVER ( 112-113),
Section 112 : Waiver of forfeiture.—A forfeiture under section 111, clause (g) is
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waived by acceptance of rent which has become due since the forfeiture, or by
distress for such rent, or by any other act on the part of the lessor showing an
intention to treat the lease as subsisting: Provided that the lessor is aware that the
forfeiture has been incurred: Provided also that, where rent is accepted after the
institution of a suit to eject the lessee on the ground of forfeiture, such
acceptance is not a waiver.
Section 113 Waiver of notice to quit.—A notice given under section 111, clause
(h), is waived, with the express or implied consent of the person to whom it is
given, by any act on the part of the person giving it showing an intention to treat
the lease as subsisting. Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The
notice expires. B tenders and A accepts, rent which has become due in
respect of the property since the expiration of the notice. The notice is
waived.
(b) A, the lessor, gives B, the lessee; notice to quit the property leased. The
notice expires, and B remains in possession. A gives to B as lessee a second
notice to quit. The first notice is waived.
Relief against forfeiture for non-payment of rent and effect of surrender ( 114,
114A, 115, 116),
GIFT
• by one person, called the donor, to another person, called the donee;
Section 124 debars the gift of property that is to be received or that may come
into existence at a future point of time and it therefore has no application in the
case of property that is very much in existence where something is to happen at a
different point of time.
• The donor and done may agree that on the happening of a specified event.
A gift shall be suspended or revoked.
• The condition is written and if the condition is breached, the gift will be
revoked and the donor can take back the property.
• If there is coercion, undue influence, fraud or misrepresentation, then the
gift will get rescinded (revoked) or suspended.
• Gift can be revoked if there is will of both donor and done (partly or
wholly).
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Universal donee (Section 128)
Where a gift consists of the donor’s whole property, the done is personally liable
for all the debts due by the donor and the liabilities of the donor at the time of the
gift to the extent of the property comprised therein.
• Fiscal Statute
• Lays down the law relating to tax levied in terms of stamp instruments
recording transactions
Stamp Duty
• Legal tax payable in full and acts as a proof for any sale or purchase of a
property
• It varies from state to state
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• Needs to be paid on all types of instruments
Importance of payment of Stamp Duty
• Agreement
• Conveyance
• Exchange
• Gifts
• Certificate of Sale
• Deed of Partition
• Power of Attorney
• Deed of Settlement
• Lease and Licence Agreement
• Agreement of Tenancy
• Lease deeds.
These have to be properly stamped before registration.
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1. Judicial – legal – used for court work.
2. Non-judicial – used for Agreements, Registrations etc.
Mode of Payment
Also, it depends on the area under which the structure is coming up.
District Sub-registrar Office (DSO)
Additional District Sub-registrar Office
(ADSO) Land Revenue ; Property tax is
given;
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• If GST is to be given @ 18%, GST on stamp duty will be calculated = 18%
of 9,81,800
An Easement is a right which the owner or occupier of certain land possesses for
the beneficial enjoyment of that land, to do or to continue to do something, or to
prevent or to continue to prevent something being done in or upon or in respect
of certain other land not his own.
Dominant and servient heritages and owners: The land for the beneficial enjoyment of
which the right exists is called the dominant heritage, and the owner or occupier
thereof the dominant owner; the land on which the liability is imposed is called the
servient heritage, and the owner or occupier thereof the servient owner.
Explanation:
• 'A', the owner of the house, has a right of way over B's land. This is for the
beneficial enjoyment of A’s house. This is an Easement.
• A is the owner of a house. He has a right of way over B's land to bring water
from a stream. This is an easement.
The examples of various rights are:
• Right of way.
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• Right to discharge rain water by an eave.
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• An apparent easement is the one the existence of which is shown by some
permanent sign. This would be visible on careful examination. For example:
➢ There is a drain from A's land to B's land and from there it is led to
open yard. This is apparent only by inspection.
➢ Artificial water-courses or openings for taking water.
• Non-apparent easement is one which has no permanent sign & hence not
visible for inspection. For example:
➢ A right annexed to A's house to prevent B from building on his own
land. This is a non-apparent easement.
Easements restrictive of certain rights (Section 7)
(a) Exclusive right to enjoy – The exclusive right of every owner of immovable
property (subject to any law for the time being in force) to enjoy and
dispose of the same and all products thereof and accessions thereto.
(b) Rights to advantages arising from situation – The right of every owner of
immovable property (subject to any law for the time being in force) to enjoy
without disturbance by another the natural advantages arising from its
situation.
Illustrations:
• The exclusive right of every owner of land in a town to build on such land,
subject to any municipal law for the time being in force.
• The right of every owner of land that the air passing thereto shall not be
unreasonable polluted by other persons.
• The right of every owner of a house that his physical comfort shall not be
interfered with materially and unreasonably by noise or vibration caused by
any other person.
• The right of every owner of land to so much light and air as pass vertically
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thereto.
• The right of every owner of land that such land, in its natural condition,
shall have the support naturally rendered by the subjacent and adjacent soil
of another person.
Explanation: Land is in its natural conditions when it is not excavated and
not subjected to artificial pressure, and the "subjacent and adjacent soil"
mentioned in this illustration means such soil only as in its natural condition
would support the dominant heritage in its natural condition.
• The right of every owner of land that, within his own limits, the water which
naturally passes or percolates by, over or through his land shall not, before
so passing or percolating, be unreasonably polluted by other persons.
• The right of every owner of land to collect and dispose within his own limits
of all water under the land which does not pass in a defined channel and all
water on its surface which does not pass in a defined channel.
• The right of every owner of upper land that water naturally rising in, or
falling on such land, and not passing in defined channels, shall be allowed by
the owner of adjacent lower land to run naturally thereto.
• The right of every owner of land abutting on a natural stream, lake or pond
to use and consume its water for drinking, household purposes and watering
his cattle and sheep, and the right of every such owner to use and consume
the water for irrigating such land, and for the purposes of any manufactory
situate thereon, provided that he does not thereby cause material injury to
other like owners.
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(i) When one person transfers immovable property to another, if an easement
in other immovable property of the transferor is necessary for enjoyment
the property transferred, the transferee is entitled to such easement. For
example:
• A sells a land used for agricultural purposes. The land is sold to B.
The land is accessible only by passing through A's land. B is entitled
to the right of way by necessity for agricultural purposes.
• A right attached to B's house to receive light and air through a window
without obstruction by his neighbour A . This is a continuous Easement.
• Rights attached to A’s land to lead water across B's land by an aqueduct and
to draw off water by a stream. The drain is discoverable by careful
inspection. This is an apparent easement.
Easements are called 'quasi', as those arising out of circumstances i.e., when the
common properties are converted into tenements by sale, mortgage
partition etc. In such a case, there is an 'implied grant'. There is no express grant or
transfer. Hence, in a sale or partition, even if there is no grant of such an easement,
the courts construe that there is an implied transfer of an easement.
• Peaceably
• Openly
• as of right
• as an easement
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(d) In respect of government land, the period is 30 years.
Computation of 20 years: This is a period ending within 2 years next before the
institution of the prescriptive easementory suit. Mere enjoyment for over 20 years
gives an inchoate (incomplete) right, but to acquire a prescriptive easement a suit
must be filed and a decree obtained from the court. For example:
• A built a house with a window facing the land of C in 1960. C built in 1979,
a-house which cut off the light and air from A's window. A objected & filed
a case in 1983 to remove the obstruction. The suit is to be dismissed: the
period of 20 years is not completed (I960 to 1979); only 19 years completed.
Also the suit has to be filed within two years.
• A sues B for obstructing the right of way. B admits the obstruction but
denies the right of way. B proves that A had taken written permission at one
point of time in 20 years. A’s suit is to be dismissed. The enjoyment is not
for 20 full years.
• A was receiving light and air through a window facing D's land for 30 years.
D built a house in 1982, obstructing the light & air. A must file a suit within
1984 against B, to remove the obstruction, (i.e., within 2 years).
Exceptions i.e. what cannot be acquired
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Salient Features of RERA
The Real Estate Regulatory Authority may, on receipt of a complaint or suo motu
in this behalf or on the recommendation of the competent authority, revoke the
registration granted under section 5, after being satisfied that—
(a) the promoter makes default in doing anything required by or under this Act,
or the rules or the regulations made thereunder;
(b) the promoter violates any of the terms or conditions of the approval given
by the mpetent authority;
(c) he promoter is involved in any kind of unfair practice or irregularities.
Explanation—For the purposes of this clause, the term "unfair practice means" a
practice which, for the purpose of promoting the sale or development of any real
estate project adopts any unfair method or unfair or deceptive practice including
any of the following practices, namely:
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grade;
➢ represents that the promoter has approval or affiliation which such
promoter does not have;
➢ makes a false or misleading representation concerning the services;
• the promoter permits the publication of any advertisement or prospectus
whether in any newspaper or otherwise of services that are not intended to
be offered;
• the promoter indulges in any fraudulent practices.
The Authority, upon the revocation of the registration, shall debar the promoter
from accessing its website in relation to that project and specify his name in the list
of defaulters and display his photograph on its website and also inform the other
Real Estate Regulatory Authority in other States and Union territories about such
revocation or registration;
The Authority shall facilitate the remaining development works to be carried out in
accordance with the provisions of section 8;
The Authority shall direct the bank holding the project back account to freeze the
account, and thereafter take such further necessary actions, including consequent
de-freezing of the said account, towards facilitating the remaining development
works in accordance with the provisions of section 8;
The promoter shall execute a registered conveyance deed in favour of the allottee
along with the undivided proportionate title in the common areas to the
association of the allottees or the competent authority, as the case may
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be, and hand over the physical possession of the plot, apartment of building, as the
case may be, to the allottees and the common areas to the association of the
allottees or the competent authority, as the case may be, in a real estate project, and
the other title documents pertaining thereto within specified period as per
sanctioned plans as provided under the local laws:
After obtaining the occupancy certificate and handing over physical possession to
the allottees it shall be the responsibility of the promoter to handover the necessary
documents and plans, including common areas, to the association of the allottees
or the competent authority, as the case may be, as per the local laws.
(a) in accordance with the terms of the agreement for sale or, as the case may
be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of
suspension or revocation of the registration under this Act or for any other
reason,
he shall be liable on demand to the allottees, in case the allottee wishes to withdraw
from the project, without prejudice to any other remedy available, to return the
amount received by him in respect of that apartment, plot, building, as the case
may be, with interest at such rate as may be prescribed in this behalf including
compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he
shall be paid, by the promoter, interest for every month of delay, till the handing
over of the possession, at such rate as may be prescribed.
The promoter shall compensate the allottees in case of any loss caused to him due
to defective title of the land, on which the project is being developed or has been
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developed, in the manner as provided under this Act, and the claim for
compensation under this subsection shall not be barred by limitation provided
under any law for the time being in force.
If the promoter fails to discharge any other obligations imposed on him under this
Act or the rules or regulations made thereunder or in accordance with the terms
and conditions of the agreement for sale, he shall be liable to pay such
compensation to the allottees, in the manner as provided under this Act.
The appropriate Government may, in consultation with the Chief Justice of the
High Court, remove from office of the Chairperson or any judicial Member or
Technical or Administrative Member of the Appellate Tribunal, who—
not be removed from his office except by an order made by the appropriate
Government after an inquiry made by the Judge of the High Court in which such
Chairperson or Judicial member or Technical or Administrative Member has been
informed of the charges against him and given a reasonable opportunity of being
heard in respect of those charges.
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The appropriate Government shall provide the Appellate Tribunal with such
officers and employees as it may deem fit.
The officers and employees of the Appellate Tribunal shall discharge their
functions under the general superintendence of its Chairperson.
The salary and allowances payable to, and the other terms and conditions of
service of, the officers and employees of the Appellate Tribunal shall be such as
may be prescribed.
The Appellate Tribunal shall not be bound by the procedure laid down by the
Code of Civil Procedure, 1908 but shall be guided by the principles of natural
justice.
The Appellate Tribunal shall have power to regulate its own procedure.
The Appellate Tribunal shall also not be bound by the rules of evidence contained
in the Indian Evidence Act, 1872.
The Appellate Tribunal shall have, for the purpose of discharging its functions
under this Act, the same powers as are vested in a civil court under the Code of
Civil Procedure, 1908 in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him
on oath;
(b) requiring the discovery and production of documents;
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(c) receiving evidence on affidavits;
(d) issuing commissions for the examinations of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or directing it ex parte; and any other
matter which may be prescribed.
All proceedings before the Appellate Tribunal shall be deemed to be judicial
proceedings within the Indian Penal Code, and the Appellate Tribunal shall be
deemed to be civil court for the purposes of the Code of Criminal Procedure,
1973.
Administrative powers of Chairperson of Appellate Tribunal (Section 54,
RERA)
The Chairperson shall have powers of general superintendence and direction in the
conduct of the affairs of Appellate Tribunal and he shall, in addition to presiding
over the meetings of the Appellate Tribunal exercise and discharge such
administrative powers and functions of the Appellate Tribunal as may be
prescribed.
Every order made by the Appellate Tribunal under this Act shall be executable by
the Appellate Tribunal as a decree of civil court, and for this purpose, the
Appellate Tribunal shall have all the powers of a civil court.
The Appellate Tribunal may transmit any order made by it to a civil court having
local jurisdiction and such civil court shall execute the order as if it were a decree
made by the court.
If any allottee, who fails to comply with, or contravenes any of the orders or
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directions of the Applellate Tribunal, he shall be punishable with imprisonment for
a term which may extend up to one year or with fine for every day during which such
default continues, which may cumulatively extend up to ten per cent of the plot, apartment or
building cost, as the case may be, or with both.
Where an Offence under this Act has been committed by a company, every person
who, at the time, the offence was committed was in charge of, or was responsible
to the company for the conduct of, the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly:
Provided that nothing contained in this sub-section, shall render any such person
liable to any punishment under this Act if he proves that the offence
was committed without his knowledge or that he had exercised all due diligence to
prevent the commission of such offence.
Where an offence under this Act has been committed by a company, and it is
proved that the offence has been committed with the consent or connivance of, or
is attributable to, any neglect on the part of any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
(a) ''company'' means any body corporate and includes a firm, or other
association of individuals; and
(b) ''director'' in relation to a firm, means a partner in the firm.
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