Darashaw Vakil - Transfer of Property Act

Date and Time: 27 February 2021 09:42:00 IST
Job Number: 137630725
Documents (100)
1. THE TRANSFER OF PROPERTY ACT ACT NO. IV OF 1882

Client/Matter: -None-
2. S. 1. Short title, Commencement, Extent
3. S.1(A)
4. S. 2. Repeal of Acts, Saving of certain enactments, incidents, rights, liabilities, etc.
5. S.2(A)
6. S. 3. Interpretation clause, Immovable property, Instrument
7. S.3(A)
8. S. 4.Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration
Act.
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10. OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
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THE TRANSFER OF PROPERTY ACT ACT NO. IV OF 1882
Darashaw Vakil: The Transfer of Property Act
Darashaw Vakil
Darashaw Vakil: The Transfer of Property Act > Darashaw Vakil: The Transfer of Property Act >
VOLUME I > Preamble
THE TRANSFER OF PROPERTY ACT ACT

NO. IV OF 1882
An Act to amend the Law Relating to the Transfer of Property by Act of Parties.
Preamble
Whereas it is expedient to define and amend certain parts of the law relating to the transfer of
property by act of parties; it is hereby enacted as follows :—
Report of the Commissioners. —The Report of the Commissioners on which a statute is founded is no
aid in its construction. 1 The Indian decisions to the contrary are doubtful. 2
Reasons for enactment. —The

Transfer of Property Act was brought upon the Indian Statute-book because it was expedient to define
and amend certain parts of the law relating to the transfer of property by act of parties.3 It does not consolidate the
preexisting law but only lays down certain portions of it in derogation of the rest. Hence it is not a complete code in
itself as regards the subject it deals with.
Transfers within the Act. —The Act applies to alienations inter vivos and has no application to
transfers by operation of law or disposal of property by will. 4
Title of the Act. —This is no part of the law and in strictness ought not to be taken into consideration 5
but it may tend to show the object of the Legislature 6 nor should any weight be attached as to its scope 7 or to alter
its construction. 8
The title of an Act throws light on the intent and design of the Legislature and indicates the scope and purpose of
the legislation itself, 9 the policy and purpose of a given measure may be ascertained from the long title thereof. 10
The long title of the Act on which reliance is placed as a guide for the determination of the scope of the Act and the
policy underlying the legislation, no doubt indicates the main purposes of the enactment, but cannot obviously
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control the express operative provisions of the Act. 11
The view is now settled that the Headings or Titles prefixed to Sections or group of Sections can be referred to in
construing an Act of the Legislature. 12
Government Grants Act, 1895 The

Government Grants Act, 1895 being a special statute would prevail over the general statute, i.e. the
Transfer of Property Act, 1882 .13
The preamble. —The preamble is merely a key to the construction of a statute and the mischief it was
intended to remedy. 14 It is undoubtedly a part of the Act and may be used to explain it. It cannot control the
enacting part which may and often does go beyond it. 15
Where the language of Act is clear, preamble cannot be invoked to curtail or restrict scope of enactment and only
where the meaning of an enactment is not clear, the preamble may be resorted to explain it. 16 A preamble though
a key to open the mind of the Legislature cannot be used to control or qualify the precise and unambiguous
language of the enactment. It is only in case of doubts or ambiguity that recourse may be had to the preamble to
ascertain the reason for the enactment in order to discover the true legislative intendment, 17 to ascertain the
reasons for the enactment and hence the intention of the Parliament. 18
Though the preamble does not control any plain enactment which follows it, it may be the most useful guide when a
question of doubt arises upon the construction of a particular provision and considerations relating to the scope of
the Act are involved. 19 A preamble does not govern clear expressions in the enacting part. 20
It may well point out what is the subject-matter in respect of which the Act is intended to operate and does operate
21 and where the enacting part of a statute is ambiguous, the preamble can be referred to, to explain and elucidate
it. 22 In Powell v. Kempton Park Racecourse Co. , 23 LORD HALSBURY said : "Two propositions are quite clear :
one, that a preamble may afford useful light as to what a statute intends to reach, and another that if an enactment
is itself clear and unambiguous, no preamble can qualify or cut down the enactment." If the words of the Act are
clear and unambiguous you cannot alter its construction by reason of the preamble. 24
Proceedings in Parliament. —The speeches made by members of the Legislature/ House during the
debate are not admissible as extrinsic aids to the interpretation of statutory provisions. 25 The legislative
proceedings cannot be referred for the purposes of construing an Act or any of its provisions, but they are relevant
for the proper understanding of the circumstances under which an Act was passed and the reasons which
necessitated it. 26
Statement of Objects and Reasons. —The best way to understand a law is to know the reason for it.
27 It is a cardinal rule of interpretation that Statement of Objects and Reasons of a statute is to be looked into as an
extrinsic aid to find out the legislative intent only when the meaning of the statute by its ordinary language is
obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the statute itself declares
the intention of the legislature and in such a case it would not be permissible for the Court to interpret the statute by
examining the Statement of Objects and Reasons for the statute in question. 28 The facts stated in the Preamble
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and the Statement of Objects and Reasons appended to any legislation are evidence of legislative judgment. They
indicate the thought process of the elected representatives of the people and their cognizance of the prevalent state
of affairs, impelling them to enact the law. 29 While interpreting the statute, the objects and reasons of a Bill may not
be treated as absolute indicators or a definite guide to the Courts, but certainly they are relevant consideration. 30
The object of the Act would be a relevant factor for interpretation only when the language is not clear and where two
meanings are possible and not in a case where the plain language leads to only one conclusion. 31
The Statement of Objects and Reasons is not admissible for construing the section, far less can it control the actual
words used. The reference to the Statement of Objects and Reasons is for understanding the enactment and the
purpose is to ascertain the conditions prevailing at the time the Bill was introduced and the objects sought to be
achieved by the proposed amendment; the Statement of Objects and Reasons is not ordinarily used to determine
the true meaning of the substantive provisions of the statute. As an aid to the construction of a statute, the
Statement of Objects and Reasons appended to the Bill, ordinarily must be avoided. 32
Reference to the Statement of Objects and Reasons is permissible for understanding the background, the
antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil, which the statute
sought to remedy. The weight of judicial authority leans in favour of the view that the Statement of Objects and
Reasons cannot be utilized for the purpose of restricting and controlling the plain meaning of the language
employed by the legislature in drafting a statute and excluding from its operation such transactions which it plainly
covers 33 or for declaring a statute invalid. 34
The Statement of Object and Reasons is not otherwise admissible as an aid to the construction of a statute. While
construing the clear terms of an Act the Court is not required to ascertain the object of the enactment. But in case of
an urgent need of the situation by reason wherefor the intent of the legislature is to be assessed, the Statements
and Objects can be looked into for the limited purpose of ascertaining the conditions prevailing at the time which
prompted or actuated the proposer of the Bill to introduce the same and the extent of remedying the existing evil of
the society. 35
It is not within the province of a Court to look to the Statement of Objects and Reasons or to the proceedings of the
Legislative Council with a view to discover whether the words used mean something above and beyond what they
say. 36 It is not permissible to refer, for this purpose, to the various forms in which the Bill was brought before the
Legislature 37 or the Report of the Select Committee. 38 The sense is not to be collected from history of changes or
debate on the Bill. 39
Section. —Where an Act is divided into sections and rules the proper canon of interpretation is that the
sections lay down general principles and the rules provide the means by which they are to be applied, and they
cannot be otherwise applied. 40 There is no magic in the word section or in the different parts of an Act being
numbered. 41 If there be two inconsistent enactments it must be seen if one cannot be read as a qualification of the
other. 42
If two sections are repugnant, the latter must prevail. 43
Proviso. —A proviso appended to a section is either an explanation or a qualification of the section. It

does not add to or enlarge the scope of the section. 44 It is engrafted on a preceding enactment. 45
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It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to
which it stands as a proviso particularly in such like penal provisions. 46 The effect of benefit extended by the main
part of the provision cannot be nullified or taken away by a proviso. 47
A proviso is to be harmoniously construed with main provision. 48
The normal function of a proviso is generally, to provide for an exception i.e. exception of something that is outside
the ambit of the usual intention of the enactment, or to qualify something enacted therein, which, but for the proviso
would be within the purview of such enactment. Thus, its purpose is to exclude something which would otherwise
fall squarely within the general language of the main enactment. Usually, a proviso cannot be interpreted as a
general rule that has been provided for. Nor can it be interpreted in a manner that would nullify the enactment, or
take away in entirety, a right that has been conferred by the statute. In case, the language of the main enactment is
clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to
exclude by implication, what clearly falls within its expressed terms. If, upon plain and fair construction, the main
provision is clear, a proviso cannot expand or limit its ambit and scope. 49
A proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within
the main enactment or to qualify something enacted therein, which but for the proviso would be within the purview
of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to
nullify or set at naught the real object of the main enactment. While interpreting a proviso care must be taken that it
is used to remove special cases from the general enactment and provide for them separately. In short, generally
speaking, a proviso is intended to limit the enacted provision so as to except something, which would have
otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded
in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.
To sum up, a proviso may serve four different purposes:
(i) Qualifying or excepting certain provisions from the main enactment;
(ii) It may entirely change the very concept or the intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make the enactment workable;
(iii) It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire
the tenor and colour of the substantive enactment itself; and
(iv) It may be used merely to act as optional addenda to the enactment with the sole object of explaining the
real intendment of the statutory provision. 50
The normal function of a proviso is to except something out of the enactment or to qualify something enacted
therein, which but for the proviso would be within the purview of the enactment. 51 As a general rule, a proviso is
added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not
interpreted as stating a general rule. 52 The proper function of a proviso is that it qualifies the generality of the main
enactment by providing an exception and taking out as it were, from the main enactment, a portion which but for the
proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as
providing something by way of an addendum or dealing with a subject, which is foreign to the main enactment. 53
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A proviso to a Section or sub-section is subservient to the main provision. 54
Marginal notes. —Marginal notes to sections of an Act do not form part of the Act55 nor do they control
the enactment. 56 The marginal notes are not considered as legitimate aid to construction of any section or rule.
The side notes are not considered as part of the Act. 57
Heading/marginal notes prima facie furnish some clue as to the meaning and purpose of the section. 58
The marginal notes or captions are, undoubtedly part and parcel of the legislative exercise and the language
employed therein provides the key to the legislative intent. The words so employed are not mere surplusage. 59 If
the relevant provisions in the body of the statute firmly point towards a construction, which would conflict with the
marginal note, the marginal note has to yield. If there is any ambiguity in the meaning of the provisions in the body
of the statute, the marginal note may be looked into as an aid to construction. 60
The marginal note cannot control the meaning of the body of the Section if the language employed therein is clear
and unambiguous. If the language of the Section is clear then it may be that there is an accidental slip in the
marginal note rather than the marginal note is correct and the accidental slip is in the body of the Section itself. 61
A marginal note cannot restrict the meaning of the section. 62 In case of conflict between the marginal note and the
enacting part of the section, the section is to prevail. 63
No reliance can be placed on them for the purpose of interpreting the section. 64 They can be referred to for the
purpose of interpretation if they can be regarded as inserted by, or under the authority of, or assented to by the
Legislature or can be looked at to see the general trend of the section. 65
Explanation. —An explanation must be read so as to harmonise with and clear up any ambiguity in the
main provision. 66
It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of
the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities,
which may have crept in the statutory provision. The object of an explanation to a statutory provision is to explain
the meaning and intendment of the Act itself, where there is any obscurity or vagueness in the main enactment, to
clarify the same so as to make it consistent with the dominant object which it seems to sub serve, to provide an
additional support to the dominant object of the Act in order to make it meaningful and purposeful. An explanation
cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is
relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the Act it
can help or assist the Court in interpreting the true purport and intendment of the enactment, and right with which
any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in
the interpretation of the same. 67 Explanations to statutory provisions, as they generally are, are clarificatory in
nature; setting down permissible boundaries for interpretation. The language of an explanation is a pointer as to the
purpose and construction of that which is sought to be explained. 68
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By inserting an explanation in the Schedule of the Act, the main reason of an explanation, even otherwise, the
scope and effect of a provision cannot be enlarged. 69
Exceptions. —Exceptions shall be construed strictly. 70
Illustrations. —These are no part of the section but they are helpful in the working and application of
the statute and their usefulness in that respect should not be impaired. They should only be rejected as repugnant
to the section as the last resort of construction. 71
An illustration does not exhaust full content of the section which it illustrates. But equally it can neither curtail nor
expand its ambit. 72 It is not to be readily assumed that an illustration to a Section is repugnant to it and rejected. 73
An illustration to the section forms part of the section, it helps to elucidate principle of Section. 74
Illustrations appended to a Section from part of the statute and although forming no part of the Section, are of
relevance and value in the construction of the text of the Section and they should not be readily rejected as
repugnant to the Section. 75 But Illustration cannot have the effect of modifying the language of the Section and
they cannot either curtail or expand the ambit of the Section, which alone forms the enactment. 76
It is the duty of the Court to accept, if that can be done, illustrations given under the section as being of value in the
construction of the text. It would require a special case to warrant their rejection on the ground of repugnancy with
the section. 77 The Act is not affected by it inasmuch as an illustration has not the same operation as the section
which really forms the enactment. 78 They do not control the plain meaning of the words. 79
Heading. —Headings are not to be treated as marginal notes. They constitute an important part of the
Act itself. They may be read as affording a better key to the construction of the sections which follow 80 or to
determine the sense of any doubtful expression in a section ranged under any particular heading. 81 They cannot
be allowed to control the enactment 82 or cut down the effect of plain words in the sections. 83 Though, as a general
rule, the language employed in a heading cannot be used to give a different effect to clear words of the section
where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were
marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute
an important part of the Act itself, and may be read not only as explaining the sections which immediately follow
them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the
constructions of the sections which follow them than might be afforded by a mere preamble. 84 The headings
prefixed to sections cannot control the plain words of the provision; they cannot also be referred to for the purpose
of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used
for cutting down the plain meaning of the words in the provision. Only in the case of ambiguity or doubt the heading
or subheading may be referred to as an aid in construing the provision but even in such a case it could not be used
for cutting down the wide application of the clear words used in the provision. 85
The heading in a particular section lends, though not normally a part of the statutory provision, assistance in
interpreting the statutory intent, since the ‘heading’ always serves as a guide to depict the intention. 86
The headings prefixed to Sections or sets of Sections are to be regarded as preambles to those sections. They
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cannot control the plain words of the statute but they may explain the ambiguous words, 87 they may legitimately be
consulted to solve any ambiguity or to fix the meaning of the words, which may have more than one, or to keep the
effect of the Act, within its real scope whenever the enacting part in any of these respects is open to doubt. 88
The view is now settled that the Headings or Titles prefixed to Sections or group of Sections can be referred to in
construing an Act of the Legislature. 89 In case of conflict between the plain language of the provision and the
meaning of the Heading or Title, the Heading or title would not control the meaning which is clearly and plainly
discernible from the language of the provision thereunder. 90
The Schedules. —The Schedule is as much a part of the Act as the enactment. 91 If the enacting part
and the Schedule do not correspond the latter must give way. 92 Whether the material is put in Section or a
Schedule is usually a mere matter of convenience. The Schedule inserted by way of amendment into the Act, which
contains the Statement of Objects and Reasons provide valuable guidance for interpretation of the provisions of the
Act. 93
A Schedule has to be in conformity with and is required to advance the object of the primary statutory provision. A
Schedule cannot in any way wipe out the statutory provisions of the Act in effect and spirit. 94
Punctuation and brackets. —This is not a part of the Act. There are no such things as brackets any
more than there are such things as stops. 1
Punctuation is a part of the Act and may be considered in the interpretation of the Act, but may not be used to
distort or defeat the intention of the legislature. 2 When a statute is carefully punctuated and there is a doubt about
its meaning, a weight should undoubtedly be given to the punctuation. The punctuation may have its uses in some
cases, but it cannot certainly be regarded as controlling element and cannot be allowed to control the plain meaning
of a text. 3
It is an error to rely on punctuation in construing Acts of the Legislature. 4
Report of Indian Law Commissions/Select Committees. —In Mithilesh Kumari v. Prem Behari Khare
5, their Lordships of the Supreme Court observed thus:—
"Is it permissible to refer to the Law Commission’s Report to ascertain the legislative intent behind the provision?
We are of the view that where a particular enactment or amendment is the result of the recommendation of the Law
Commission of India, it may be permissible to refer to the relevant law report as in this case. What importance can
be given to it will depend on the facts and circumstances of each case".
Where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it
may be permissible to refer to the relevant report. What importance can be given to it will depend on the facts and
circumstances of each case. However, the Court has to interpret the language used in the Act, and when the
language is clear and unambiguous it must be given effect to. Law Commission’s Reports may be referred to as
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external aid to construction of the provision. 6
English decisions. —Where the terms of the Section under Indian law are clear, it is not open to the
Courts to refer to English decisions or of other countries. 7 In view of the illiteracy in India and fact that a small
fraction of people knows English, principles laid down by English Courts cannot apply in their entirety. 8
Dictionary meanings. —When a word is not defined in the Act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in common parlance. However, in
selecting one out of the various meanings of a word, regard must always be had to the context, as it is a
fundamental rule that "the meaning of words and expressions used in an Act must take their colour from the context
in which they appear." 9
Dictionary meanings, however helpful in understanding the general sense of the words, cannot control where the
scheme of the statute considered as a whole clearly conveys a somewhat different shade of meaning. 10
When the word is not defined in the Act it may be permissible to refer to dictionary to find out the meaning of that
word, as it is understood in the common parlance. But where the dictionary gives divergent or more than one
meaning of a word, in that case it is not safe to construe the said word according to the suggested dictionary
meaning of that word. In such a situation that word has to be construed in the context of the provisions of the Act
and regard must also be had to the legislative history of the provisions of the Act and the scheme of the Act. 11
Dictionary meaning shall not be taken into consideration when the intention of the word is clear. 12
Interpretation clause. —The interpretation clause is of modern origin and frequently does a great deal
of harm. 13 It is not of a descriptive but of an enlarging character and should be used for the purpose of interpreting
the words which are ambiguous or equivocal and not so as to disturb the meaning of such as are plain. 14
Interpretations-General principles. —It is a general principle that statutes, which encroach on the
liberty of the subject, must be construed strictly and that nothing should be deemed to fall within the statute unless
its words are wide enough to cover it. 15 It is a well settled principle of law that where wordings of a statute are
absolutely clear and unambiguous recourse to different principles of interpretations may not be resorted to but
where the words of a statute are not so clear and unambiguous, the other principles of interpretation should be
resorted to. 16
A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner
so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not
get fossilized by remains flexible enough to meet the newly emerging problem and challenges. 17
The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory
provisions, and the Courts must state what meaning the statute should bear, rather than rendering the statute a
nullity, as statutes are meant to be operative and not inept. The Courts must refrain from declaring a statute to be
unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute,
protects interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of
the statute. Construction given by the Court must promote the object of the statute and serve the purpose for which
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it has been enacted and not efface its very purpose. 18
Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless
there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add
something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly,
where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and
exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the
meaning of the word as defined. 19 Once the legislature has defined a term in the interpretation clause, it is not
necessary for it to use the same expression in other provisions of the Act. 20 The words or expression used in a
statute before and after amendment should be given the same meaning. 21 The Court must always lean to the
interpretation which is reasonable one, and discard the literal interpretation which does not fit in with the scheme of
the Act under consideration. 22 In all normal cases and primarily the language employed is the determinative factor
of legislative intention. 23
The Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of
the Legislature.The language employed in a statute is the determinative factor of legislative intent. A casus omissus
cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four
corners of the statutes itself but at the same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together and every clause of a section should be
construed with reference to the context and other clauses thereof so that the construction to be put on a particular
provision makes a consistent enactment of the whole statute. 24
If on going through the plain meaning of the language of statute, it leads to anomalies, injustice and absurdities,
then the Court may look into the purpose for which the statute has been brought and would try to give a meaning,
which would adhere to the purpose of the statute. 25 Where the plain literal interpretation of statutory provision were
to manifestly result in injustice never intended by the legislature, the Court is entitled to modify the language used
by the legislature so as to achieve the intention of the legislature and to produce a rational construction. 26 Any
interpretation which leads to absurdity should not be accepted. 27
The words, which are used in declaring the meaning of other words, may also need interpretation and the
legislature may use a word in the same statute in several different senses. In that view of the matter it would not be
correct to contend that the expression as defined in the interpretation clause would carry the same meaning
throughout the statute irrespective of the context in which it is used. Such a provision must be construed very
strictly. When the words of the Section are plain and unambiguous, a plain meaning should be attributed thereto. 28
Where the language of the statute/rules is clear, the literal rule of interpretation will apply. 29 The use of the word
‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used
or having regard to the intention of the legislation, the same can be construed as directory. 30
It is well settled law that merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat
its object. The Courts are not concerned with the legislative policy or with the result, whether injurious or otherwise,
by giving effect to the language used nor it is the function of the Court where the meaning is clear not to give effect
to it merely because it would lead to some hardship. It is the duty imposed on the Courts in interpreting a particular
provision of law to ascertain the meaning and intendment of the Legislature and in doing so, it should presume that
the provision was designed to effectuate a particular object or to meet a particular requirement. 31 The alleged
intention behind a provision, cannot be used to defeat the express words of the provision. Once a statutory rule is
made, without providing any exceptions, it is not possible to carve out exceptions to such rule, by judicial
interpretation. Nor can an exemption from application of a clear and specific rule be claimed on the ground of
hardship or similar reasons. 32
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The rule of contextual interpretation requires that the Court should examine every word of statute in its context,
while keeping in mind the preamble of the statute, other provisions thereof, pari materia statutes, if any, and the
mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries.
33
It is permissible to look into the pre-existing law, historical legislative developments, and Constituent Assembly
Debates, for interpreting the provisions of the
Constitution . 34
Administrative interpretation may often provide the guidelines for interpreting a particular Rule or executive
instruction, and the same may be accepted unless, of course, it is found to be in violation of the Rule itself. 35
Where the statute has been framed in vernacular language, its English authentic version is not placed before the
Court, it would not be appropriate for the Court to place any interpretation on the provision of the statute. 36
In interpreting a statute or statutory provision under it, recourse to comparable legislation is permissible as an
external aid for interpretation of statute, but where in the statute itself there is sufficient internal aid, reference or
recourse to comparable legislation may not be necessary. 37
In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created
and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or
inevitable corollaries to the giving effect to the fiction. 38
While interpreting the statute, Courts not only may take into consideration the purpose for which the same has been
enacted, but also the mischief it seeks to suppress. If the choice is between two interpretations, the narrower of
which would fail to achieve the manifest purpose of the legislation, the Court should avoid a construction which
would reduce the legislation to futility and should rather accept the bolder construction based on the view that
Parliament would legislate only for the purpose of bringing about an effective result. 39
The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory
provisions, and the Courts must state what meaning the statute should bear, rather than rendering the statute a
nullity, as statutes are meant to be operative and not inept. The Courts must refrain from declaring a statute to be
unworkable. The rules of interpretation require that construction, which carries forward the objectives of the statute,
protects interest of the parties and keeps the remedy alive, should be preferred, looking into the text and context of
the statute. Construction given by the Court must promote the object of the statute and serve the purpose for which
it has been enacted and not efface its very purpose. 40
When interpreting provisions of law, it is best to give an interpretation, which is purposive and which advances the
cause of justice. No doubt, the Court cannot import words into the section, but when two views are possible, the
Court can give a purposive interpretation, which helps and aids the cause of justice. 41 The Court can interpret the
provision to make it meaningful and workable so as to achieve the legislative object, when there is vagueness,
ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be,
Page 11 of 41
but to make it what the legislature intended it to be. 42
When the particular provision of the earlier statute is incorporated in the subsequent Act, such provision so
understood in the first Act at the time of incorporation has to be given the same meaning in the subsequent Act. It is
always open for the Court to refer to relevant provisions of the earlier Act from which the provision has been
enacted in the subsequent Act though not specifically incorporated, if such provisions throw light to the meaning of
provision, which has been incorporated in the subsequent Act. 43
It is a well settled principle of interpretation that hardship or inconvenience caused, cannot be used as a basis to
alter the meaning of the language employed by the legislature, if such meaning is clear upon a bare perusal of the
statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it
causes hardship or possible injustice. 44
If the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also,
any addition/subtraction of a word is not permissible. It is not proper to use a sense, which is different from what the
word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word used. A provision is
to be read as a whole and while interpreting, the intention and object of the legislation have to be looked upon.
However, each case depends upon the facts of its own. 45 In a case where a statue is found to be obscure the
same must be interpreted having regard to the constitutional scheme. The entire statute must be read as a whole. 46
The golden rule of interpretation of statute is that when the language is explicit, its consequences are for the
legislature and not for the Court to consider. If it appears to the Court that words which ought to have been there in
the statutes have been omitted by the legislature, it must be supposed that the omission was intentional. Even if the
omission is obvious, casus omissus can in no cases be supplied by the process of interpretation. 47
The Court has to keep in mind the fact that, while interpreting the provisions of a statute, it can neither add, nor
subtract even a single word. The legal maxim " A verbis legis non est recedendum " means, "From the words of
law, there must be no departure". A section is to be interpreted by reading all of its parts together, and it is not
permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while
enacting the statute has committed a mistake; it must proceed on the footing that the legislature intended what it
has said: even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the
Court to add and amend. or by construction, make up for the deficiencies, which have been left in the Act. The
Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The
Court, while, interpreting statutory provisions, cannot add words to a statute, or read words into it which are not part
of it, especially when a literal reading of the same, produces an intelligible result. 48
It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter,
section by section and word by word. Recourse to construction or interpretation of statute is necessary when there
is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts
of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. 49
The provision should be read as a whole. It will not be proper to single out a part of the provision to give it a
different meaning. 50
True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with
due regard to the scheme of law. 51 Merely, because a provision of law is couched in a negative language implying
mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of
Page 12 of 41
the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to
be directory though worded in the negative form. 52 The Court cannot read anything into a statutory provision which
is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the
determinative factor of legislative intent. 53
It is also well settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory
purpose and not to frustrate it. 54
While interpreting the rent legislation where some provisions of the Rent Act are beneficial to the landlord and some
are to the tenant, a balance is required to be struck so that equal treatment be meted out to both the sections of the
society. 55
It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into
while interpreting any of the expressions used in a statute. The Courts must look to the object, which the statute
seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is
necessary. 56 Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is
trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the
doctrine of purposive construction should be adopted. 57 When two interpretations of a statute are possible, the
Court may prefer and adopt the purposive interpretation having regard to object and intent thereof. 58
A statute is an edict of the Legislature, 59 and the conventional way of interpreting or construing a statute is to seek
the ‘intention’ of its maker. A statute is to be construed according "to the intent of them that make it" 60 and "the
duty of judicature is to act upon the true intention of the Legislature—the mens or sentential legis". 61 The
expression ‘intention of the Legislature’ is shorthand reference to the meaning of the word used by the legislature
objectively determined with the guidance furnished by the accepted principles of interpretation. 62 If a statutory
provision is open to more than one interpretation the Court has to choose that interpretation which represents the
true intention of the Legislature. 63 A statute must be read as a whole and one provision of the Act should be
construed with reference to other provisions of the same Act so as to make a consistent, harmonious enactment of
the whole statute. The Court must ascertain the intention of the legislature by directing its attention not merely to the
clauses to be construed, but to the scheme of the entire statute. The attempt must be to eliminate conflict and to
harmonise the different parts of the statute for it cannot be assumed that Parliament had given by one hand what it
took away by the other. 64
Providing adjudicatory mechanism is one of the important facets of deciding whether a particular statute is a
‘complete code’ in itself or not. 65 The words "at any time" have to be interpreted in the context in which they are
used. 66
The expression ’by an Act’, would mean by virtue of a provision directly enacted in the statute in question and that,
which is conceivable from its express language or by necessary implication therefrom. The words ‘under the Act’,
would in such context, signify that which may not directly be found in the statute itself, but which is conferred by
virtue of powers enabling such action(s), e.g., by way of laws framed by a subordinate law making authority
competent to do so under the parent Act. 67
The word "a" has various usages and meanings. "A" means "one", or "any", but less emphatically than either. It may
mean one where only one is intended, or it may mean any one of a greater number. The article "a" is not
necessarily a singular term; it is often used in the sense of "any", and when so used may be applied to more than
Page 13 of 41
one individual object. The indefinite article "a" may sometimes mean one, where only one is intended or it may
mean one of a number depending upon the context. 68
In all ordinary cases and primarily the language employed is the determining factor of intention. 69 "The first and
primary rule of construction" said GAJENDRAGADKAR, J. "is that the intention of the Legislature must be found in
the words used by the Legislature itself". 70 But words used by the Legislature do not always bear a plain meaning.
Moreover, judges quite often differ on the issue whether certain words are plain and even when there is an
agreement that the words are plain, difference of opinion may result on the question as to what the plain meaning
is. 71 In case of doubt, therefore, it is always safe to have an eye on the object and purpose of the statute, or
reason and spirit behind it. 72 According to BLACKSTONE the most fair and rational method for interpreting a
statute is by exploring the intention of the Legislature through the most natural and probable signs which are either
the words, the context, the subject-matter, the effects and consequence, or the spirit and reasons of the law. 73
While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if
deemed necessary. The legislative casus omisus cannot be supplied by judicial interpretative process. 74 A casus
omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the
four corners of the statue itself but at the same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together and every clause of a section should be
construed with reference to the context and other clauses thereof so that the construction to be put on a particular
provision makes a consistent enactment of the whole statute. 75
A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to
inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and
preference should be given to that construction which avoids such results. 76
Some statutes may be clear and some statutes have to be interpreted according to the plain language contained
therein. Only in ambiguous statutes whole of the statute has to be read and interpreted having regard to the object
and intendment thereof and at times invoking the theory of ‘casus omissus’. 77
Each word, phrase or sentence that one gets in a statutory provision if not defined in the Act, then is to be
considered in the light of the general purpose of the Act. 78
In case of "deeming clause", it is the bounden duty of the Court to ascertain for what purpose the legal fiction has
been created. The use of the word ‘deemed’ has to be read in its context, and further the fullest logical purpose and
import are to be understood. It is because in modern legislation the term ‘deemed’ has been used for manifold
purposes. The object of the legislature has to be kept in mind. 79
Whenever the draftsman departs from the rules, and it is certainly not a rare occurrence, the Courts are led to the
necessity of modifying the general rules or of engrafting exceptions to them, the result being that in many cases
there ceases to be any general rule or at any rate any general intelligible rule. Further, "fashions in parliamentary
draftsmanship and attitude of the Legislature towards innovations in established law are not unchanging. 80
The Court is not expected to go into individual cases while dealing with interpretation of law. It is a settled canon of
Page 14 of 41
interpretive jurisprudence that hardship of few cannot be the basis for determining the validity of any statute. The
law must be interpreted and applied on its plain language. 81
When the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but also
proper to read that provision in its context. The context here means, the statute as a whole, the previous state of the
law, other statutes in pari materia , the general scope of the statute and the mischief that it was intended to remedy.
82 The statement of the rule was recently fully adopted by the Supreme Court. 83 Different statutes may use the
same term for different purposes. A term or a word may be interpreted in the statute itself for fulfilling the purport
and object mentioned therein whereas in another statute it may be defined differently. Interpretation of a term in one
statute, cannot be done with reference to its definition contained in another. 84 On the doctrine of ‘pari materia’,
reference to other statutes dealing with the same subject or forming part of the same system is a permissible aid to
the construction of provisions in a statute. 85
‘Any’ is a word of very wide meaning and prima facie the use of it excludes limitation. 86 Strict construction of a
procedural law is called for when there is complete extinguishment of rights as opposed to cases where discretion
is vested in the Courts to balance the equities between the parties to meet the ends of justice which would invite
liberal interpretation. 87
The word "and" is always used as a conjunction between the first part of a sentence and the second part of a
sentence, and the word "or" is used to denote an alternative in a sense of exclusive arrangements. 88
The Courts strongly lean against a construction, which reduces the statute to a futility. 89 It is an application of this
principle that Courts while pronouncing upon the constitutionality of a statute start with presumption in favour of
constitutionality and prefer a construction, which keeps the statute within the competence of the Legislature. 90 The
importance of the principle can be judged from the fact that there is hardly any reported decision, where a statute
may have been declared void for sheer vagueness, although theoretically it may be possible to reach such
conclusion in case of "absolute intractability of the language used," 1 or when "it is impossible to resolve the
ambiguity," 2 i.e ., when the language is absolutely meaningless. 3 A statute is an edict of the Legislature
and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed
according to the intent of those who make it and the duty of the Court is to act upon the true intention of the
Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that
interpretation which represents the true intention of the Legislature. 4
In interpreting any procedural law, where more than one interpretation is possible, the one, which curtails the
procedure without eluding the justice, is to be adopted. The procedural law is always subservient to and is in aid to
justice. Any interpretation, which eludes or frustrates the recipient of justice, is not to be followed. 5 The Court
cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous.
Narrow and pedantic construction may not always be given effect to. Courts should avoid a construction, which
would reduce the legislation to futility. Every statute is to be interpreted without any violence to its language. It is
also trite that when an expression is capable of more than one meaning, the Court would attempt to resolve the
ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the
alternative constructions. 6
If a word used in a statute is not defined in that statute itself, the definition clause in a different statute, which may
have defined the same word, cannot be imported to interpret or construe the said word in the statute where it is not
defined. In such a situation, the duty of the interpreter would be to choose that which fits, plainly, situationally,
objectively, and contextually. 7
Page 15 of 41
The statement of the Minister who had moved the Bill in Parliament can be looked at to ascertain mischief sought to
be remedied by the legislation and the object and purpose for which the legislation is enacted. The statement of the
Minister who had moved the Bill in Parliament is not taken into account for the purpose of interpreting the provisions
of the enactment. 8
A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. 9
When prefatory words like "Notwithstanding anything contained in this section" would occur, then it excludes the
application of any other provision in that section. 10
The presumption of law is that that an Act is valid and the Legislature does not intend to enact a law, which is ultra
vires the
Constitution . 11
It is the golden rule of interpretation that words used in a Section must be given their ordinary meaning, unless the
interpretation leads to manifest absurdity or repugnance. 12 Ordinarily the expression "subject to" conveys the idea
of a provision yielding place to another provision or other provisions subject to which it is made. 13
Where a word or an expression is defined by the Legislature, the Courts have to look to that definition; the general
understanding of it cannot be determinative. 14 An expression defined in an interpretation clause may not
necessarily carry the same meaning throughout the statute. 15 The expression "may" in the statute may prima facie
indicate a discretion vested in the authority, but the provisions of the statute in which the expression "may" has
been used, may further annex the discretion with an obligation to exercise the discretion in a particular manner. 16
The word "shall" would normally be mandatory while the word "may" would be directory. Consequences of non-
compliance would also be a relevant consideration. The word "shall" raises a presumption that the particular
provision is imperative but this prima facie inference may be rebutted by other considerations such as object and
scope of the enactment and the consequences flowing from such construction. Where a statute imposes a public
duty and proceeds to lay down the manner and timeframe within which the duty shall be performed, the injustice or
inconvenience resulting from a rigid adherence to the statutory prescriptions may not be a relevant factor in holding
such prescription to be only directory. 17
When any statutory provision carries any negative import, the intention of the legislature must be understood that
no other idea can be thought of under any circumstances. 18
It is well-settled principle of law that in the absence of any context indicating a contrary intention, the same meaning
would be attached to the word used in the latter as is given to them in the earlier statute. It is trite that the words or
expression used in a statute before and after amendment should be given the same meaning. When the legislature
uses the same words in a similar connection, it is to be presumed that in the absence of any context indicating a
contrary intention, the same meaning should attach to the words. 19
Page 16 of 41
It is clear that the non obstante clause has to be given restricted meaning and when the section containing the said
clause does not refer to any particular provisions which intends to override but refers to the provisions of the statute
generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. In other words,
there requires to be a determination as to which provisions answers the description and which does not. While
interpreting the non obstante clause, the Court is required to find out the extent to which the legislature intended to
do so and the context in which the non obstante clause is used. 20
When both statutes containing non obstante clauses are special statutes, an endeavour should be made to give
effect to both of them. In case of conflict, the latter shall prevail. 21 When two provisions of the same statute
become applicable in a given case, a harmonious construction should be taken recourse to. 22
If two special enactments contain provisions which give overriding effect to the provisions contained therein, then
the Court is required to consider the purpose and the policy underlying the two Acts and the clear intention
conveyed by the language of the relevant provisions. 23
A statute is not called retrospective statute merely because a part of the requisites for its action is drawn from a
time precedent to its passing. The most concrete cases wherein laws are made retrospective are those in which the
date of commencement is earlier than enactment, or which validate some invalid laws. 24
Mimansa Principles of Interpretation. —It is not stated anywhere in the

Constitution of India that only Maxwell’s Principles of Interpretation can be utilised. We can utilise any
system of interpretation which can help to resolve a difficulty. Principles of interpretation are not principles of law but
are only a methodology for explaining the meaning of the words used in a text. There is no reason why one cannot
use Mimansa Principles of Interpretation in appropriate occasions. 25
Special statute. —While interpreting a special statute, which is a self-contained code, the Court must
consider the intention of the legislature. 26
Act, if exhaustive. —The essence of a code is to be exhaustive in the matters in respect of which it
declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment,
according to its true construction. 27
The
Transfer of Property Act is not an exhaustive or consolidating Code.28 The
Transfer of Property Act is not exhaustive. It does not deal with every kind of transfer of property, which
the law permits. Nor does it prescribe the mode for every legally recognised transfer. Nevertheless, it is an
enactment meant for defining certain basic types of transfer and it lays down the requirements both of substance
and of form for their legal recognition and effectiveness.29 The
Transfer of Property Act , applies only to transfer by actof parties. A transfer by operation of law is not
validated or invalidated by anything contained in the Act. A transfer which takes place by operation of law,
therefore, need not meet the requirement of the provisions of the
Transfer of Property Act or
Registration Act, 1908 .30
Page 17 of 41
The
Transfer of Property Act was not intended to be exhaustive and does not profess to be a complete
code.31 It does not exclude any equitable principle such as may regulate the rights and liabilities of the parties in a
case not specifically provided by the Legislature. 32
It was said by LORD HOBHOUSE in Waghela v. Shekh Masludin 33 that the expression "equity and
good conscience" was generally interpreted as meaning English Law, if found applicable to Indian society and
circumstances. But in matters regulated thereby the Act is to be regarded as exhaustive. 34
Amending Act , 1929, retrospective effect of.—Since the passing of the

Transfer of Property Act in 1882 its provisions have been amended on a number of occasions. But there
was no general revision of the Act nor was there any importation of a new principle until the
Amending Act 20 of 1929 was passed whereby substantial changes have been made in the Act which
have been noticed in their proper places.
Section 63 of the Amending Act is in these terms :—
"Nothing in any of the following provisions of this Act, namely, Sections 3, 4, 9, 10, 15, 18, 19, 27, 30, clause (c) of
Section 31, Sections 32, 33, 34, 35, 46, 52, 55, 57, 58, 59, 61 and 62 shall be deemed in any way to affect—
(a) the terms or incidents of any transfer of property made or effected before the first day of April, 1930,
(b) the validity, invalidity, effect or consequences of anything already done or suffered before the aforesaid
date,
(c) any right, title, obligation or liability already acquired, accrued or incurred before such date, or
(d) any remedy or proceeding in respect of such right, title, obligation or liability;
and nothing in any other provision of this Act shall render invalid or in any way affect anything already done before
the first day of April, 1930, in any proceeding pending in a Court on that day; and any such remedy and any such
proceeding as is herein referred to may be enforced, instituted or continued, as the case may be, as if this Act had
not been passed."
Amending Act , 2002 (3 of 2003) retrospective effect of.—

Section 3 of the Amending Act of 2002 specifically provides that the amended provision shall apply to :
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of the
amending Act ; and
(b) (b) all notices which have been issued before the commencement of the
amending Act , but where no suit or proceedings has been filed before such
commencement.
Page 18 of 41
Therefore, the amendment applies to all present as well as future proceeding. ‘Suit or proceeding’ would include
appeals, revisions, etc.
1 Arding v. Bonner , (1856) 2 Jur. N.S. 763; Ewart v. Williams , (1854) 3 Drew 21 : 61 ER
808.
2 Romesh Chunder Sannyal v. Hiru Mondal ,

(1890) 17 Cal 852 ; Queen-Empress v. Kartick Chunder ,
(1887) 14 Cal 721 .
3 Kishorilal v. Krishna-Kamini ,
(1910) 37 Cal 377 (382); Deo Narain Rai v. Kukur Bind ,
(1902) 24 All 319 (332); Tajjo Bibi v. Bhagwan Prasad ,
(1894) 16 All 295 (298).
4 Rajah Parthasarathy v. Rajah Venkatadri , (1923) 46 Mad 190 (222); Kishorilal v.

Krishna-Kamini ,
(1910) 37 Cal 377 (382); Promotko Nath Mitter v. Kali Prasanna ,
(1901) 28 Cal 744 (748); N. Ramaiah v. Nagaraj S .,
AIR 2001 Kant 395 [
LNIND 2001 KANT 175 ] (398) (DB); Koragappa Gowda v. Jinnappa Gowda , 1998
AIHC 1147 (1149) (Kant); Raja Surendra Vikaram Singh v. Rani Munia Kunwar ,
AIR 1944 Oudh 65 .
5 Salkeld v. Johnson , (1848) 2 Exch. 256, 154 ER 487.
6 Fenton v. Thorley & Co. Ltd.,

(1903) AC 443 ; Re. Boaler,
(1915) 1 KB 21 ; Johnson v. Upham,
(1859) 28 LJQB 252 , 121 ER 95.
7 Vacker & Sons . v. London Society of Compositors,

(1913) AC 107 ; National Telephone Co. Ltd. v. Postmaster-General,
(1913) AC 546 .
8 Sage v. Eicholz,
(1919) 2 KB 171 .
9 Poppatlal Shah v. State of Madras , AIR

1953 SC 274 :
(1953) SCR 677 [
LNIND 1953 SC 38 ].
10 In re The Kerala Education Bill , AIR

1958 SC 956 (974) :
(1959) SCR 995 ; Biswambhar Singh v. The State of Orissa , AIR
1954 SC 139 :
Page 19 of 41
(1954) SCR 842 [

LNIND 1953 SC 122 ].
11 Manohar Lal v. State of Punjab , AIR

1961 SC 418 (419) :
(1961) 2 SCR 343 [
LNIND 1960 SC 265 ].
12 Bhinka v. Chapran Singh , AIR

1959 SC 960 (966) : 1959 Supp (2) SCR 798.
13 Pradeep Oil Corporation v. Municipal Corporation of Delhi2011 , AIR

SC 1869 (1875) :
(2011) 5 SCC 270 [
LNIND 2011 SC 381 ] : 2011 AIR SCW 2534 : J, T 2011 (5) SC 94 :
2011 (4) SCALE 422 [
LNIND 2011 SC 381 ]
[2011] 4 SCR 74 .
14 Salkeld v. Johnson , (1848) 2 Exch. 256, 154 ER 487; Girija Nandan Kalwar v. Hanuman
Das ,
(1927) 49 All 25 .
15 Salkeld v. Johnson , (1848) 2 Exch. 256, 154 ER 487; St. Catharini’s College v. Rosse ,
(1916) 1 Ch. 73; Chinna Aiyan v. Mahomed Fakr-u-din Saib , (1865) 2 Mad HC 322.
16 Rashtriya Mill Mazdoor Sangh v. NTC (South Maharashtra , AIRLtd.)

1996 SC 710 (713) :
(1996) 1 SCC 313 [
LNIND 1995 SC 1187 ] ; Burrakur Coal Co. Ltd. v. Union of India , AIR
1961 SC 954 (956, 957) :
(1962) 1 SCR 44 [
LNIND 1961 SC 55 ].
17 Hiten P. Dalal v. Bratindranath Banerjee,

(2001) 6 SCC 16 [
LNIND 2001 SC 1311 ] :
2001 SCC (Cri) 960 [
LNIND 2001 SC 1311 ]).
18 Tribhuban Prakash v. Union of India AIR ,

1970 SC 540 (543) :
(1969) 3 SCR 99 ; Hiten P. Dalal v. Bratindranath Banerjee
(2001) 6 SCC 16 [
LNIND 2001 SC 1311 ] :
2001 SCC (Cri) 960 [
LNIND 2001 SC 1311 ].
19 Sital Chandra v. (Mrs.) Delanney ,

(1916) 20 CWN 1158 .
20 Keshab Panda v. Bhobani Panda, (1913) 18 CLJ 187.

Page 20 of 41
21 Chilton v. Progress Printing and Publishing Co. , (1895) 2 Ch. 29.
22 The Corporation of Calcutta v. Kumar Arun Chandra Singha, (1934) 60 CLJ 312 ; Raj Mal
v. Harnam Singh , (1927) 9 Lah 260 ; Doe v. Brandling , (1828) 7 B. & C. 643; Fellows v. Clay,
(1843) 4 QB 313 ; Sussex Peerage Case , (1844) 11 Cl. & F. 85.
23
(1899) AC 143 (157); Queen-Empress v. Indarjeet ,
(1889) 11 All 262 .
24 Sage v. Eicholz
(1919) 2 KB 171 ; Raj Mal v. Harnam Singh , (1928) 9 Lah 260 ; Sussex Peerage
Case , (1844) 11 Cl. & F. 85, 143; Powell v. Kempton Park Racecource Co.,
(1899) AC 143 , 157; Secretary of State v. Maharaja of Bobbili , (1919) 43 Mad 529,
46 IA 302; Mani Lal Singh v. Trustees for the Improvement of Calcutta ,
(1917) 45 Cal 343 (FB).
25 Aswini Kumar Ghosh v. Arabinda Bose , AIR

1952 SC 369 (373) :
(1953) SCR 1 [
LNIND 1952 SC 94 ].
26 Chiranjit Lal Chowdhuri v. Union of India , AIR

1951 SC 41 (45) :
(1950) SCR 869 [
LNIND 1950 SC 55 ].
27 Novartis A.G. v. Union of India, AIR 2013

SC 1311 (1320) :
JT 2013 (4) SC 195 [
LNIND 2013 SC 250 ]:
2013 (5) SCALE 12 [
LNIND 2013 SC 250 ].
28 S.S.Bola v. B.D. Sardana , AIR

1997
SC 3127 (3208) :
(1997) 8 SCC 522 [
LNIND 1997 SC 930 ] ; Raymond Ltd. v. State of Chattisgarh , AIR 2007
SC 2854 (2859) :
(2007) 3 SCC 79 [
LNIND 2007 SC 200 ] ; Rasila S. Mehta v. Custodian, Nariman Bhavan Mumbai,
AIR 2011
SC 2122 (2128) : (
2011 6 SCC 220 [
LNIND 2011 SC 498 ] : 2011 AIR SCW 3002 ; State of Tamil Nadu v. K. Shyam
Sunder, AIR 2011
SC 3470 (3488) : 2011 (8) SCALE 474 : 2011 AIR SCW 5014 :
JT 2011 (9) SC 166 [
LNIND 2011 SC 737 ]].
29 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, AIR

2006 SC 212 (232) :
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ].
Page 21 of 41
30 Miten S/o Shyamsunder v. U.O.I. ,

2008 (5) Mah LJ 27 (46) (Bom-DB).
31 Karnataka State Financial Corporation v. N. Narasimahaiah , AIR 2008

SC 1797 (1805).
32 Princl. Chief Conservator of Forest v. J.K. Johnson, AIR

2013 SC 61 (71).
33 See Principles of Statutory Interpretation by Justice G.P. SINGH, 8th Edn. 2001, pp. 206-99; Bhaiji v. Sub-
Divisional Officer, Thandla,
(2003) 1 SCC 692 (700):
(2002) 10 JT 353 .
34 Bakthawar Trust v. M.D. Narayan , AIR

2003 SC 2236 :
(2003) 5 SCC 298 .
35 Subhash Rajkumar Bind v. State of Maharashtra , AIR

2003 SC 269 (276, 277) :
(2003) 1 SCC 506 [
LNIND 2002 SC 695 ].
36 Raj Mahal v. Harnam Singh , (1928) 9 Lah 260 ; The Administrator-General of Bengal v.
Prem Lal Mullick ,
(1895) 22 Cal 788 , 22 IA 107; Kandakuri Balasurya v. The Secretary of State ,
(1917) 40 Mad 886 ; Krishna Ayyangar v. Nallaperumal Pillai , (1919) 43 Mad 550, 47 IA 33; Zamindar of Ethiyapuram
v. Chidambaram , (1920) 43 Mad 675, (687); Shantanand Gir v. Basudevanand Gir ,
(1930) 52 All 619 ; Queen-Empress v. Bal Gangadhar Tilak , (1898) 22 Bom 112 ;
Gopal Pandey v. Parsotam Das ,
(1882) 5 All 121 , (135); Kadri Bakhsh v. Bhawani Prasad ,
(1892) 14 All 145 ; Gurdial Singh v. The Central Board Local Committee , (1928) 9
Lah 689.
37 Shaik Moosa v. Shaik Essa , (1894) 8 Bom 241 (247); Fadu Jhala v. Gour Mohun ,
(1892) 19 Cal 544 (567); Mootlora Kant v. The India General Steam Navigation Co.
,
(1883) 10 Cal 166 ; Queen- Empress v. Kartik Chunder Das ,
(1887) 14 Cal 721 .
38 Gurdial Singh v. The Central Board Local Committee , (1928) 9 Lah 689.
39 Millar v. Taylor , (1769) 4 Burr. 2303 : 98 ER 201; Hollinshead v. Hasleton,

(1916) 1 AC 428 ; Rhondda’s (Viscountess) Claim,
(1922) 2 AC 339 ; R.S. Ruikar v. Emperor , (1935) 31 Nag LR 318.
40 Nabin Chandra v. Prankrishna De ,

(1914) 41 Cal 108 .
41 Edward v. Shenen , (1843) 11 M&W 595 : 152 ER 943.

Page 22 of 41
42 Ebbs v. Benlnois , (1875) as reported in 10 Ch. App. 479; Cholomeley School, Highgate
v. Sewell,
(1894) 2 QB 906 .
43 Wood v. Riley , (1867) as reported in LR 3 C.P. 26; Amar Chand Roy v. Prasanna Dasi ,
(1921) 25 CWN 9 .
44 In re. Mrs. Besant , (1916) 39 Mad 1164.
45 R. v. Taunton St. James (Inhabitants) , (1829) 2 B&C 831 : 109 ER 309.
46 State of Karnataka v. Krishnappa , AIR 2000

SC 1470 (1474) :
(2000) 4 SCC 75 [
LNIND 2000 SC 551 ].
47 Hyderabad Asbestos Cement Products v. Union of India , AIR

2000 SC 314 (316) :
(2000) 1 SCC 426 [
LNIND 1999 SC 1101 ].
48 Sales Tax Commissioner v. B.G. Patel, AIR

1995 SC 865 :
(1995) 1 SCALE 348 ; Ali M.K. v. State of Kerala,
(2003) 11 SCC 632 [
LNIND 2003 SC 463 ] : AIR
2003 SC 4006 .
49 Rohitash Kumar v. Om Prakash Sharma, AIR

2013 SC 30 (35, 36) :
(2012) 11 SCALE 30 ; (vide CIT, Mysore v. Indo Mercantile Bank Ltd., AIR
1959 SC 713 [1959] Supp (2) SCR 256; Kush Sahgal v. M.C. Mitter, AIR
2000 SC 1390 : 2000 AIR SCW 1151 :
JT 2000 (3) SC 563 [
LNIND 2000 SC 528 ]:
2000 (2) SCALE 593 [
LNIND 2000 SC 528 ] :
JT 2005 (10) SC 383 : 2003 (10) SCALE 1110 : [2003] Supp 6 SCR 1039; Haryana
State Co-operative Land Development Bank Ltd. v. Haryana State Co-operative Land Development Bank Employees
Union,
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ] :
2008 (13) SCALE 228 [
LNIND 2008 SC 2011 ]
JT 2008 (11) SC 212 [
LNIND 2008 SC 2011 ]; Nagar Palika Nigam v. Krishi Upaj Mandi Samiti, AIR
2009 SC 187 : 2008 AIR SCW 7114 :
JT 2010 (2) SC 660 [
LNIND 2010 SC 61 ]:
2010 (2) SCALE 839 [
LNIND 2010 SC 61 ] : [2000] 4 SCR 1; State of Kerala v B. Six Holiday Resorts
Private Limited,
(2010) 5 SCC 186 [
LNIND 2010 SC 61 ] : AIR 2010 SC (Supp) 953 : 2010 AIR SCW 2168 :
2012 (11) SCALE 30 ).
Page 23 of 41
50 Sundaram S. Sundarampillai v. V.R. Pattabhuraman , AIR

1985 SC 582 (592) :
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ] ; Ali M.K. v. State of Kerala,
(2003) 11 SCC 632 [
2003 SC 4006 .
51 Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Sales Tax Officer , AIR
1966 SC 12 , (14) (Para 8 ) :
1965 (3) SCR 626 [
LNIND 1965 SC 114 ]; Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai , AIR
1966 SC 459 (465) :
1966 (1) SCR 367 [
LNIND 1965 SC 186 ]; Nizam’s Religious Endowment Trust, Hyderabad v. CIT,
A.P., AIR 1966
SC 1007 (1010) :
(1966) 2 SCR 384 [
LNIND 1965 SC 273 ] ; Kush Sahgal v. M.C. Mitter , AIR 2000
SC 1390 (1398) :
(2000) 4 SCC 526 [
LNIND 2000 SC 528 ] ; Maulavi Hussein Haji Abraham Umarji v. State of Gujarat,
AIR
2004 SC 3946 (3949, 3950) :
(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ] ; Union of India v. Sanjay Kumar Jain , AIR 2004
SC 4139 (4142) :
(2004) 6 SCC 708 [
LNIND 2004 SC 778 ].
52 Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha ,
AIR 1961
SC 1596 (1690) :
(1962) 2 SCR 159 [
LNIND 1961 SC 194 ] ; S. Sundarma Sundaram Pillai v. Pattabhiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ] (608) : AIR
1985 SC 582 ; Motiram Ghelabhai v. Jagan Nager,
(1985) 2 SCC 279 [
LNIND 1985 SC 70 ] (285) : AIR
1985 SC 709 ; Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, AIR
2004 SC 3946 (3949, 3950) :
(2004) 6 SCC 672 [
SC 4139 (4142) :
(2004) 6 SCC 708 [
LNIND 2004 SC 778 ].
53 CIT Mysore etc. v. Indo Mercantile Bank Ltd., AIR

1959 SC 713 (717) : 1959 Supp (2) SCR 256. See further Kedarnath Jute
Manufacturing Co. Ltd. v. Commercial Sales Tax. Officer , AIR
1966 SC 12 (14) :
1965 (3) SCR 626 [
LNIND 1965 SC 114 ]; T.M. Kanniyan v. ITO, Pondicherry , AIR
1968 SC 637 (641) :
1968 (2) SCR 103 [
LNIND 1967 SC 310 ]; Dibya Singh Malana v. State of Orissa , AIR
1989 SC 1737 (1739, 1740) : (1989) Supp (2) SCC 312; J.K. Industries v. Chief
Inspector of Factories and boilers ,
1996 (7) SCALE 247 [
LNIND 1996 SC 1547 ] (261) :
1996 (6) SCC 665 [
LNIND 1996 SC 1547 ]; Maulavi Hussein Haji Abraham Umarji v. State of Gujarat,
Page 24 of 41
AIR
2004 SC 3946 (3949, 3950) :
(2004) 6 SCC 672 [
SC 4139 (4142) :
(2004) 6 SCC 708 [
LNIND 2004 SC 778 ].
54 South Asia Industries v. Sarup Singh , AIR

1966 SC 346 (350) :
(1965) 3 SCR 829 .
55 Punardeo Narain Singh v. Ram Sarup Roy ,

(1898) 25 Cal 858 ; Dukhi Mollah v. Halway ,
(1895) 23 Cal 55 ; Sutton v. Sutton , (1882) 22 Ch. D. 511; Wilkes v. Goodwin,
(1923) 2 KB 86 ; De Beauvis v. Green,
(1906) 22 TLR 816 .
56 A.-G. v. Great Eastern Ry. Co. , (1879) 11. Ch. 449; Re. Penrhyn’s (Lord) Settlement
Trusts, Penrhyn v. Robarts , (1923) 1 Ch. 143; Balaji Singh v. Gangamma ,
AIR 1927 Mad 85 [
LNIND 1926 MAD 247 ].
57 Guntaiah v. Hambamma , AIR 2005

SC 4013 (4016).
58 Brihan Mumbai Electric Supply Transport Undertaking v. Laqshya Media P. Ltd., AIR
2010 SC 5 (12) :
(2010) 1 SCC 620 [
LNIND 2009 SC 2042 ] :
2009 (14) SCALE 247 [
LNIND 2009 SC 2042 ] : 2009 AIR SCW 7528 :
[2009] 15 SCR 1218 [
LNIND 2009 SC 2042 ] :
JT 2009 (14) SC 495 [
LNIND 2009 SC 2042 ].
59 Uttam Das Chela Sunder Das v. Shiromani Gurudwara Prabandhak Committee , AIR
1996
SC 2133 (2137) :
(1996) 5 SCC 71 [
LNIND 1996 SC 996 ].
60 S.P. Gupta v. Union of India , AIR

1982 SC 149 : (1981) Supp SCR 87 ; Prakash Nath Khanna v. I.T. Commr. , AIR
2004
SC 4552 (4558) :
(2004) 9 SCC 686 .
61 Nalinakhya Bysack v. Shyam Sunder Haldar , AIR

1953 SC 148 :
(1953) SCR 533 [
LNIND 1953 SC 11 ].
62 Dilawar Babu Khurana v. State of Maharashtra, 2002 AIR SCW 146 (149).
Page 25 of 41
63 Pheku v. Harish Chandra ,

1953 All 406 [
LNIND 1953 ALL 8 ].
64 Corporation of Calcutta v. Arunchandra ,

(1933) 60 Cal 1470 ; Balaji Singh v. Gangamma ,
(1927) 51 MLJ 641 ; Balraj Kunwar v. Jagatpal Singh ,
(1904) 26 All 393 : 31 IA 132.
65 Ram Saran Das v. Bhagwat Prasad ,

(1929) 51 All 411 ; Secretary of State for India v. Bombay Municipality , (1935) 59
Bom 681.
66 Oblum Electrical Industries Pvt. Ltd. v. Collector of Customs, Bombay , AIR 1997
SC 3467 (3471) :
(1997) 7 SCC 581 [
LNIND 1997 SC 1900 ] ; Bhita Co-operative Development Cane Marketing Union
Ltd. v. Bank of Bihar , AIR
1967 SC 389 (392) :
(1967) 1 SCR 848 [
LNIND 1966 SC 253 ].
67 S. Sundaram v. V.R. Pattabhiraman, AIR

1985 SC 582 (593) :
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ].
68 Raj Kumar Jaiswal v. Ramesh Kumar Jaiswal,

AIR 2007 Cal 94 [
LNIND 2006 CAL 679 ] (103) (DB).
69 Hardeo Motor Transport v. State of M.P., AIR

2007 SC 839 (846) :
(2006) 8 SCC 613 [
LNIND 2006 SC 866 ].
70 C.N. Krishna Murthy v. Abdul Subhan ,

AIR 1965 Mys 128 .
71 Hemchandra v. Narendranath ,
(1934) 61 Cal 148 ; Mahomed Syedol Ariffin v. Yeoh Woi Gark,
(1916) 2 AC 575 : 43 IA 256 : 19 Bom LR 157. But see Krishnadas v. Dwarkadas ,
(1937) Bom 679.
72 Shambu Nath Mehra v. State of Ajmer , AIR

1956 SC 404 (406) :
(1956) SCR 199 [
LNIND 1956 SC 23 ].
73 Jumma Masjid v. Kodimaniandra Deviah, AIR

1962 SC 847 (851) : 1962 Supp (2) SCR 554.
Page 26 of 41
74 Mahesh Chand Sharma v. Raj Kumari Sharma , AIR

1996 SC 869 :
(1996) 8 SCC 128 [
LNIND 1995 SC 1223 ].
75 Mahomed Sydeol Ariffin v. Yeah Oai Gark, 43 IA 256, p. 263 :

(1916) 2 AC 575 (581) (PC); Muralidhar Chatterjee v. International Film Co., AIR
1943 PC 34 , p. 38; Sopher v. Administrator General of Bangal, AIR
1944 PC 67 , p. 69; Jumma Masjid v. Kodimaniandra Deviah, AIR
1962 SC 887 (851) : 1962 Supp (2) SCR 554. But See Mahesh Chandra Sharma v.
Raj Kumari Sharma (Smt.), AIR
1996 SC 869 (877) :
(1996) 8 SCC 128 [
LNIND 1995 SC 1223 ] where it is said that "illustrations to the Section are parts of
the Section and help to elucidate the principle of the Section".
76 Bengal Nagpur Railway Co. Ltd. v. Ruttanji , AIR

1938 PC 67 (70); Aniruddha Mitra v. Administrator General of Bengal , AIR
1949 PC 244 (250); Shambhu Nath Mehra v. State of Ajmer , AIR
1956 SC 404 (406) :
1956 SCR 199 [
LNIND 1956 SC 23 ].
77 Durga Priya Chowdhury v. Durga Pada Roy ,

(1928) 55 Cal 154 .
78 Kamalamal v. Peru Meera , (1897) 20 Mad 481 (483); Koylash Chunder v. Sonatun
Chung ,
(1881) 7 Cal 132 ; Nanak Ram v. Mehin Lal ,
(1887) 1 All 487 .
79 Satya Priya Ghoshal v. Gobindo Mohon Roy ,

(1909) 14 CWN 414 .
80 The Eastern Counties London and Blackwall Railway Cos. v. Marriage , (1860) 9 H.I.C.
32; R. v. Local Government Board , (1882) 10 QBD. 309; Inglis v. Robertson,
(1898) AC 616 ; Dwarkanath v. Tafazar ,
(1917) 44 Cal 267 ; Janki Singh v. Mahanath Jagannath Das ,
(1919) 3 Pat LJ 1 ; Ram Shankar Lal v. Ganesh Prasad ,
(1907) 29 All 385 (414).
81 Hammersmith & City Ry. Co. v. Brand,

(1869) 4 HL 171 ; Toronto Corporation v. Toronto Railway,
(1907) AC 315 ; Prakash Nath Khanna v. I.T. Commr. , AIR 2004
SC 4552 (4558) :
(2004) 9 SCC 686 .
82 Re. Penrhyn’s (Lord) Settlement Trusts, Penrhyn v. Robarts , (1923) 1 Ch. 143.
83 R. v. Fulham Guardians,
(1909) 2 KB 504 ; Y.L. eServices Pvt. Ltd. v. Silverline Business & Tech. Park Ltd.
AIR 2008 Kar 127 : (2008) 4 Kar LJ 259.
Page 27 of 41
84 Iqbal Singh Marwah v. Meenakashi Marwah , AIR 2005

SC 2119 (2125) :
(2005) 4 SCC 370 [
LNIND 2005 SC 261 ].
85 R. Krishnaiah v. State of Andhra Pradesh ,

AIR 2005 AP 10 (13, 14):
(2004) 2 ALT 730 :
(2004) 2 ALD 94 .
86 Brihan Mumbai Electric Supply Transport Undertaking v. Laqshya Media P. Ltd., AIR
2010 SC 5 (12) : 2009 AIR SCW 7528 :
(2010) 1 SCC 620 [
LNIND 2009 SC 2042 ] :
2009 (14) SCALE 247 [
LNIND 2009 SC 2042 ] :
[2009] 15 SCR 1218 [
LNIND 2009 SC 2042 ] :
JT 2009 (14) SC 495 [
LNIND 2009 SC 2042 ].
87 Bhinka v. Charan Singh , AIR

1959 SC 960 : 1959 Supp (2) SCR 798.
88 M. Ram Chandra Bali v. M.R. Kanniah, 1996 Mad 401 : 1996.
89 Bhinka v. Charan Singh , AIR

1959 SC 960 : 1959 Supp (2) SCR 798, p. 966; Director of Public Prosecutions v.
Schildkamp ,
(1969) 3 All ER 1640 (HL).
90 Raichurmatham Prabhakar v. Rawatmal Dugar , AIR 2004

SC 3625 (3630) :
(2004) 4 SCC 766 [
LNIND 2004 SC 462 ].
91 A.-G. v. Lamplough , (1878) 3 Ex. D. 214.
92 Re. Baines , (1840) Cr. & Ph. 31, 41 ER 401; Allen v. Flicker , (1839) 10 Ad. & El. 639 :
113 ER 243; Panagotis v. S.S. Pontiac,
(1912) 1 KB 74 .
93 Mohd. Siddiq Ali Khan v. Shahsun Finance Ltd .,

AIR 2005 AP 274 (283):
(2005) 2 ALT 503 (FB).
94 Jagdish Prasad v. State of Rajasthan and others, AIR

2011
SC 3189 (3196) :
(2011) 7 SCC 789 [
LNIND 2011 SC 2697 ] : 2011 AIR SCW 4449 :
2011 (7) SCALE 552 [
Page 28 of 41
LNIND 2011 SC 2697 ] :

JT 2011 (7) SC 384 .
1 Claydon v. Green , (1868) 37 LJC.P. 226; Devonshire(Duke) v. O’Connor,

(1890) 24 QBD 468 ; R. v. Speyer, R. v. Cassel,
(1916) 1 KB 595 ; R. v. Casemeni,
(1917) 1 KB 98 ; Mansa Ram v. Ancho ,
(1933) 55 All 700 .
2 A.K. Gopalan v. State of Madras , AIR

1950 SC 27 :
(1950) SCR 88 [
LNIND 1950 SC 22 ].
3 Aswini Kumar Ghosh v. Arabinda Bose , AIR

1952 SC 369 (383) :
(1953) SCR 1 [
LNIND 1952 SC 94 ].
4 The Maharani of Burdwan v. Krishna Kamini ,

(1887) 14 Cal 365 (372) : 14 IA 30.
5 AIR
1989 SC 1247 (1252, 1253) :
(1989) 2 SCC 95 [
LNIND 1989 SC 96 ] (103, 104) :
(2000) 2 SCC 230 [
LNIND 2000 SC 42 ] (252).
6 Mithlesh Kumari v. Prem Behai Khare , AIR

1989 SC 1247 (1252, 1253) :
(1989) 2 SCC 95 [
LNIND 1989 SC 96 ] ; Society for Un-Aided Private School of Rajasthan v. U.O.I.,
AIR 2012
SC 3445 (3473) : 2012 (4) SCALE 272 : 2012 AIR SCW 3400 ; see also Ravinder
Kumar Sharma v. State of Assam,
(1999) 7 SCC 435 [
1999 SC 3571 : 1999 AIR SCW 3578 :
JT 1999 (6) SC 565 [
LNIND 1999 SC 801 ]:
1999 (5) SCALE 467 [
LNIND 1999 SC 801 ] : 1999] Supp 2 SCR 339.
7 Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf , AIR

1959 SC 135 (139, 140) :
1959 SCR 1350 [
LNIND 1958 SC 107 ].
8 Cadila Health Care Ltd. v. Cadlia Pharmaceuticals, AIR

2001 SC 1952 : 2001 (3) KLT (SC)(SN) 4.
9 S. Samuel v. Union of India , AIR

2004 SC 218 (222) :
(2004) 1 SCC 256 .
Page 29 of 41
10 Dy. Chief Controller of Imports and Exports v. K.T. Kosalram , AIR 1971
SC 1283 (1289) :
(1971) 2 SCR 507 [
LNIND 1970 SC 399 ].
11 I.T. Commr. Bangalore v. Venkateswara Hatcheries (P), Ltd , AIR 1999

SC 1225 (1228) :
(1999) 3 SCC 632 [
LNIND 1999 SC 299 ].
12 State of Maharashtra v. Praful B. Desai (Dr.) , AIR

2003 SC 2053 :
(2003) 4 SCC 601 [
LNIND 2003 SC 380 ].
13 Lindsey v. Cundy,
(1876) 45 LJQB 781 .
14 R. v. Pearce,
(1880) 5 QBD 386 .
15 Rehmat Aslam v. Crown ,

AIR 1950 Lah 232 (234); Badrilal v. Sita Bai,
AIR 2011 MP 181 [
LNIND 2011 MP 210 ] (185) (FB) : 2011 (2) MPHT 74].
16 Swedish Match AB v. Securities & Exchange Board, India , AIR 2004

SC 4219 (4229) :
(2004) 6 SCC 485 [
LNIND 2004 SC 749 ].
17 M. Nagraj v. Union of India , AIR

2007 SC 71 (81) :
(2006) 8 SCC 212 [
LNIND 2006 SC 857 ].
18 State of Gujarat v . R.A. Mehta,

(2013) 3 SCC 1 (47, 48) :
2013 (3) SCALE 531 [
LNINDORD 2013 SC 34637 ] : AIR
2013 SC 1563 .
19 Feroze N. Dotivala v. P.M. Wadhwani,

(2003) 1 SCC 433 [
LNIND 2002 SC 760 ] (443):
(2002) 9 SCALE 1 [
LNIND 2002 SC 760 ].
20 Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock & Chem. Ltd. , AIR 2007
SC 2458 (2474) :
(2007) 8 SCC 705 [
LNIND 2007 SC 668 ].
Page 30 of 41
SC 2458 (2474) :
(2007) 8 SCC 705 [
LNIND 2007 SC 668 ].
22 B.S. Council of Ayurvedic and Unani Medicine v. State of Bihar , AIR

2008 SC 595 (606).
23 Miten S/o Shyamsunder v. U.O.I. ,

2008 (5) Mah LJ 27 (46) (Bom-DB).
24 Kewala Devi v. Sri Krishna Devi ,

2013 (1) PLJR 176 [
LNINDORD 2012 PAT 10232 ] (178, 179) (Pat).
25 Union of India v. Hansoli Devi , AIR 2002

SC 3240 (3246) :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ].
26 Girnar Traders v. State of Maharashtra, AIR 2007

SC 3180 (3191) :
(2007) 7 SCC 555 [
LNIND 2007 SC 1007 ].
27 S.R. Batra v. Tarunka Batra, AIR 2007

SC 1118 (1121) :
(2007) 3 SCC 169 [
LNIND 2006 SC 737 ].
28 Bajaj Departmental Stores v. M.C.D.,

AIR 2002 Del 520 [
LNIND 2002 DEL 852 ] (528) (FB) :
2002 (65) DRJ 570 [
LNIND 2002 DEL 852 ].
29 B. Premanand v. Mohan Koikal, AIR 2011

SC 1925 (1928) :
(2011) 4 SCC 266 [
LNIND 2011 SC 301 ] : 2011 AIR SCW 2546 :
2011 (3) SCALE 598 [
LNIND 2011 SC 301 ].
30 Salem Advocate Bar Assocn. v. Union of

2005 India,
SC 3353 (3360) :
(2005) 6 SCC 344 [
LNIND 2005 SC 573 ] ; M/S Delhi Airtech Services Pvt. Ltd. v. State of U.P., AIR
2012 SC 573 :
(2011) 9 SCC 354 [
LNIND 2011 SC 788 ] : 2012 AIR SCW 129 :
(2011) 9 SCALE 201 [
LNIND 2011 SC 788 ] : 2012 (1) All LJ 681 (SC)].
Page 31 of 41
31 Easland Combines v. Collector of Central Excise , AIR

2003 SC 843 (850) :
(2003) 3 SCC 410 [
LNIND 2003 SC 18 ].
32 K.P. Sudhakaran v. State of Kerala, AIR 2006

SC 2138 (2144) :
(2006) 5 SCC 386 [
LNIND 2006 SC 383 ].
33 Union of India v. Alok Kumar, 2010 AIR

SC 2735 (2753) :
(2010) 5 SCC 349 [
LNIND 2010 SC 362 ] : 2010 AIR SCW 3804 : 2010 All LJ 256 :
2010 (4) SCALE 92 [
LNIND 2010 SC 362 ].
34 Special Reference No. 1 of 2002, AIR

2003 SC 87 (101):
(2003) 8 SCC 237 .
35 Rohitash Kumar v. Om Prakash Sharma, AIR

2013 SC 30 (35) :
2012 (11) SCALE 30 .
36 Nafis Ahmad v. State of U.P., AIR 2012

SC 3901 (3905) : 2012 (6) SCALE 643 : 2012 AIR SCW 4282 : 2012 (5) All LJ 293
37 N.B. Posiya v. Director of Agri. Mktg. & Rural Finance ,

AIR 2002 Guj 348 [
LNIND 2002 GUJ 111 ] (358) (FB) : 2002 (2) Guj LR 1132 : 2002 AIHC 3962.
38 State of U.P. v. Hari Ram, AIR 2013

SC 1793 (1799) :
JT 2013 (4) SC 275 [
LNIND 2013 SC 190 ]: (2013) 4 LSCC 280.
39 Suresh Khullar v. Vijay Kumar Khullar ,

AIR 2008 Del 1 [
LNIND 2007 DEL 906 ] (6):
(2008) 148 DLT 685 (DB).
40 State of Gujarat v. R.A. Mehta, AIR

2013 SC 693 (722) :
JT 2013 (1) Sc 276 : 2013 (1) SCALE 7.
41 Jyoti Prakash v. Kamal Kant,

AIR 2011 HP 116 [
LNIND 2011 HP 272 ] (119).
Page 32 of 41
42 Sri Jayaram Educational Trust v. A.G. Syed Mohideen, AIR

2010 SC 671 (674) :
JT 2010 (1) SC 391 [
LNIND 2010 SC 95 ]:
2010 (1) SCALE 561 [
LNIND 2010 SC 95 ] [2010] 2 SCR 1127.
43 Shamrao Vithal Co-op. Bank v. Star Glass Works ,

AIR 2003 Bom 205 [
LNIND 2002 BOM 1084 ] (213).
44 Rohitash Kumar v. Om Prakash Sharma,

AIR
2013 SC 30 (36) :
2012 (11) SCALE 3 ; (vide Commissioner of Agricultural Income Tax, West Bengal
v. Keshab Chandra Mandal, AIR
1950 SC 265 ; D.D. Joshi v. Union of India, AIR
1983 SC 420 :
1983 (1) SCALE 226 [
LNIND 1983 SC 412 ] :
[1983] 2 SCR 448 [
LNIND 1983 SC 412 ].
45 Institute of C.A. of India v. Ajit Kumar Iddya,

AIR 2003 Kant 187 [
LNIND 2003 KANT 38 ] (189); Promoters & Builders Association of Pune v.
Municipal Corporation, AIR 2007
SC 1956 (1961) :
(2007) 6 SCC 143 [
LNIND 2007 SC 642 ]. (Where the language of the section is clear, and words are
unambiguous, they have to be given their natural meaning).
46 State of Himachal Pradesh v. Surinder Singh Banolta, AIR

2007 SC 903 (906) :
(2006) 12 SCC 484 [
LNIND 2006 SC 1040 ].
47 Indian Bank v. Ekm. Dist. Harijan Girijan M.T. Co-op. Socy. Ltd. ,
AIR 2006 Ker 154 [
LNIND 2005 KER 785 ] (161):
(2006) 1 KLT 479 [
LNIND 2005 KER 785 ].
48 Rohitash Kumar v. Om Prakash Sharma,

AIR
2013 SC 30 (37) :
(2012) 11 SCALE 30 ; (vide Nalinakhya Bysack v. Shyam Sunder Haldar, AIR
1953 SC 148 :
[1953] 4 SCR 533 [
LNIND 1953 SC 11 ]; Sri Ram Ram Narain Medhi v. State of Bombay, AIR
1959 SC 459 : [1959] Supp 1 SCR 489; M. Pentiah v. Muddala Veeramallappa, AIR
1961 SC 1107 :
[1961] 2 SCR 295 [
LNIND 1960 SC 260 ]; The Balasinor Nagrik Cooperative Bank Ltd. v. Babubhai
Shankerlal Pandya, AIR
1987 SC 849 :
JT 1987 (1) SC 462 : 1987 (1) SCALE 348; Dadi Jagannadham v. Jammulu
Ramulu & Ors.,
(2001) 7 SCC 71 [
LNIND 2001 SC 1790 ] : AIR
Page 33 of 41
2001 SC 2699 : 2001 AIR SCW 3051 :

JT 2001 (6) SC 693 : 2001 (5) SCALE 402).
49 Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. , AIR

2003 SC 511 (516) :
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ].
50 Muzaffar Alam Sekendar v. State of Tripura,

AIR 2013 Gau 104 [
LNIND 2012 GAU 164 ] (109).
51 Ibid.
52 R.N. Jadi and Brothers v. Subhashchandra, AIR 2007

SC 2571 (2574) :
(2007) 6 SCC 420 [
LNIND 2007 SC 843 ].
53 Union of India v. Braj Nandan Singh, AIR 2005

SC 4403 (4405) :
(2005) 8 SCC 325 [
LNIND 2005 SC 818 ].
54 Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd.

AIR ,
2003 SC 511 (517) :
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ] ; Oriental Insurance Co. Ltd. v. Hazara,
AIR 2012 Del 26 [
LNIND 2011 DEL 2709 ]].
55 Badrilal v. Sita Bai,

AIR 2011 MP 181 [
LNIND 2011 MP 210 ] (185) (FB) : 2011 (2) MPHT 74.
56 S. Gopal Reddy v. State of A.P ., AIR 1996

SC 2184 (2188) :
(1996) 4 SCC 596 [
LNIND 1996 SC 1040 ].
57 Nathi Devi v. Radha Devi Gupta , AIR

2005 SC 648 (657) :
(2005) 2 SCC 271 [
LNIND 2004 SC 1268 ].
58 P.S. Sathappan v. Andhra Bank Ltd. , AIR 2004

SC 5152 (5186) :
(2004) 11 SCC 672 [
LNIND 2004 SC 1053 ].
59 Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of Stamps, UP , AIR
1968 SC 102 (104) :
Page 34 of 41
1967 (3) SCR 920 [

LNIND 1967 SC 184 ]; Institute of Chartered Accountants of India v. Price
Waterhouse , AIR
1998 SC 74 (90) :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ].
60 R.M.D. Chamarbaugwala v. Union of India ,

AIR
1957 SC 628 (631) :
1957 SCR 930 ; Chief Justice, Andhra Pradesh v. L.V.A. Dikshitulu, AIR
1979 SC 193 (205) :
(1979) 2 SCC 37 ; Prithi Pal Singh v. Union of India , AIR 1982
SC 1413 (1419) :
(1982) 3 SCC 140 [
LNIND 1982 SC 123 ] ; Girdharilal and sons v. Balbirnath Mathur , AIR
1986 SC 1499 :
(1986) 2 SCC 237 [
LNIND 1986 SC 45 ] ; Stock v. Frank Jones (Tipton) Ltd.,
(1978) 1 All ER 948 , p. 951 (HL); Maunsell v. Olins,
(1975) 1 All ER 16 , p. 19 (HL).
61 SALMOND : " Jurisprudence ", 11th Edition, p. 152. "The object of interpreting a statute is to ascertain the
intention of the Legislature enacting it"; South Asia Industries (Pvt.) Ltd. v. S. Sarup Singh , AIR
1966 SC 346 (348) : 1965 (3) SCR; S. Narayanaswami v. G. Panneerselvam, AIR
1972
SC 2284 (2285) :
(1972) 3 SCC 717 [
LNIND 1972 SC 221 ] ; Kartar Singh v. State of Punjab, JT
(1994) 2 SC 423 (463) :
1994 (3) SCC 569 :
1994 Cr LJ 3139 (SC); Institute of Chartered Accountants of India v. Price
Waterhouse, AIR
1998 SC 74 (90) :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ].
62 R. v. Secretary of State for the Environment Ex-parte Spath Holme,

(2001) 1 All ER 195 p. 216 (HL).
63 Venkataswami Naidu, R. v. Narasram Naraindas , AIR

1966 SC 361 (363) :
1966 (1) SCR 110 [
LNIND 1965 SC 152 ].
64 Godwat Pan Masala Products I.P. Ltd. v. Union of India , AIR 2004
SC 4057 (4067) :
(2004) 7 SCC 68 [
LNIND 2004 SC 737 ].
65 Jayesh Dhanesh Goragandhi v. Municipal Corporation of Greater Bombay, AIR

2013 SC 882 (889) :
JT 2013 (12) SC 220 : 2012 (11) SCALE 645.
SC 2458 (2475) :
(2007) 8 SCC 705 [
LNIND 2007 SC 668 ].
Page 35 of 41
67 Dr. Indramani Pyarelal Gupta & Ors. v. W.R. Nahtu & AIROrs.,
1963 SC 274 :
[1963] 1 SCR 721 [
LNIND 1962 SC 159 ]; State of Gujarat v. R.A. Mehta, AIR
2013 SC 693 (712) :
JT 2013 (1) SC 276 : 2013 (1) SCALE 7.
68 Muzaffar Alam Sekendar v. State of Tripura,

AIR 2013 Gau 104 [
LNIND 2012 GAU 164 ] (109).
69 New Piece Goods Bazar Co. Ltd. v. CIT Bombay , AIR

1950 SC 165 (168) :
1950 SCR 553 [
LNIND 1950 SC 28 ] ; Ramkrishan v. State of Delhi, AIR
1956 SC 476 (478); Kanailal Sur v. Paramnidhi Sadhukhan , AIR
1957 SC 907 (910) :
1958 SCR 360 [
LNIND 1957 SC 83 ] ; Ramkrishan Ram Nath v. Janpad Sadha , AIR 1962
SC 1073 (1079) : 1962 Supp (3) SCR 70; Controller of Estate Duty v. Kantilal
Tikamlal , AIR 1976
SC 1935 (1939) : 1977 SCC (Tax) 90. ("Law to a large extent, lives in the language
even if it expands with the spirit of the statute"); Union of India v. Sankalchand Himmatlal Sheth , AIR 1977
SC 2328 (2337) :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] ; Chief Justice of Andhra Pradesh v. LVA Dikshitulu , AIR
1979 SC 193 (205) :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] ; Om Prakash Gupta v. Digivijendrapal Gupta , AIR 1982
SC 1230 (1233) :
(1982) 2 SCC 61 [
LNIND 1982 SC 63 ] ; Badaji Kondaji Garod v. Nasik Merchnts Co-operative Bank
Ltd .,
(1984) 2 SCC 50 [
LNIND 1983 SC 323 ] (59) : AIR
1984 SC 192 ; Doypack Systems Pvt. Ltd. v. Union of India , AIR
1988 SC 782 (801) :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ]; Member Secretary, Andhra Pradesh State Board for
Prevention and Control of Water Pollution v. Andhra Pradesh Rayons Ltd , AIR
1989 SC 611 (615) :
1989 (1) SCC 44 [
LNIND 1988 SC 494 ]; Keshavji Ravji and Co. v. Commissioner of Income Tax , AIR
1991 SC 1806 (1812); Bola v. B.D. Sardana , AIR
1997 SC 3127 (3208, 3209) :
(1997) 8 SCC 522 [
LNIND 1997 SC 930 ].
70 Kannailal Sur v. Paramnidhi Sadhukhan , Supra.
71 See Newbury District Council v. Secretary of State for the Environment ,

(1980) 1 All ER 731 731 (HL) :
(1981) AC 578 .
72 See Utkal contractors and Joinery Pvt. Ltd. v. State of Orissa,

(1987) 3 SCC 279 [
LNIND 1987 SC 466 ] (288) : AIR
Page 36 of 41
1987 SC 1454 . ("A statute is best understood if we know the reasons for it", per
CHINAPPA REDDY, J.)
73 BLACKSTONE, Commentaries on the Laws of England, Vol 1, p. 59; referred to in Atmaram Mittal. v.
Iswar Singh Punia , AIR 1988
SC 2031 (2034) :
(1988) 4 SCC 284 [
LNIND 1988 SC 401 ] ; Member Secretary Andhra Pradesh State Board for
Prevention and Control of Water Pollution v. Andhra Pradesh Rayon’s Ltd ., AIR
1989 SC 611 (615) :
(1989) 1 SCC 44 [
LNIND 1988 SC 494 ] ; Collector of Central Excise v. Parle Exports, AIR
1989 SC 644 (652) :
(1989) 1 SCC 345 [
LNIND 1988 SC 559 ] ; State of U.P. v. Radheyshyam, AIR
1989 SC 682 (690) :
1989 (1) SCC 591 [
LNIND 1989 SC 14 ].
74 Sangeeta Singh v. Union of India, AIR 2005

SC 4459 (4461) :
(2005) 7 SCC 484 [
LNIND 2005 SC 631 ].
75 Sangeeta Singh v. Union of India , AIR 2005

SC 4459 (4461) :
(2005) 7 SCC 484 [
LNIND 2005 SC 631 ].
76 Globe Cogeneration Power Ltd. v. Sri H.S.S.K. Niyamit,

AIR 2005 Kant 94 [
LNIND 2004 KANT 183 ] (104):
(2004) 7 Kar LJ 124 [
LNIND 2004 KANT 183 ] (DB).
77 Sen, P.A. v. Co-op. Medical College, Kochi ,

AIR 2005 Ker 245 [
LNIND 2005 KER 28 ] (248):
(2005) 1 KLT 612 [
LNIND 2005 KER 28 ] (DB).
78 State of U.P. v. Hari Ram, AIR 2013

SC 1793 (1799) :
JT 2013 (4) SC 275 [
LNIND 2013 SC 190 ]:
2013 (3) SCALE 348 [
LNIND 2013 SC 190 ].
79 Aneeta Hada v. M/s. Godfather Travels & Tours Private Ltd., AIR
2012 SC 2795 (2807, 2808) :
2012 (5) SCC 661 [
LNIND 2012 SC 260 ] : 2012 AIR SCW 2693 :
2012 (4) SCALE 644 [
LNIND 2012 SC 260 ] :
2012 CrLJ 2525 :
2012 (4) SCALE 644 [
LNIND 2012 SC 260 ].
Page 37 of 41
80 Carter v. Bradbeer,
(1975) 3 All ER 158 , p. 161 (HL) (Lord DIPLOCK).
81 Avishek Goenka v. Union of India, AIR 2012

SC 3230 (3235) : 2012 AIR SCW 4578 :
2012 (7) SCALE 97 [
LNIND 2012 SC 448 ].
82 R.S Raghunath v. State of Karnataka , AIR

1992 SC 81 (89) :
1992 (1) SCC 335 [
LNIND 1991 SC 516 ]; Powdrill v. Watson,
(1995) 2 All ER 65 , p. 79 (HL).
83 Union of India v. Elphinstone Spinning and Weaving Co. Ltd., AIR

2001 SC 724 (740) :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ]. (
Constitution Bench).
84 Naresh Kumar Madan v. State of M.P., AIR

2008 SC 385 (386, 387):
(2007) 4 SCC 766 .
85 Ahmedabad Pvt. P.T. Assocn. v. Administrative Officer , AIR 2004

SC 1426 (1429) :
(2004) 1 SCC 755 .
86 Associated Indem Mechanical (P) Ltd. v. West Bengal Small Industries Development
Corpn. Ltd. , AIR
2007 SC 788 (793) :
(2007) 3 SCC 607 [
LNIND 2007 SC 13 ].
87 Mahadeo Govind Gharge v. Spl. Land Acquisition Officer, Upper Krishna Project,
Jamkhandi, AIR 2011
SC 2439 (2448) :
(2011) 6 SCC 321 [
LNIND 2011 SC 509 ] : 2011 AIR SCW 3220 :
(2011) 6 SCALE 1 :
JT 2011 (1) SC 100 [
LNIND 2011 SC 2838 ].
88 Indian Medical Association v. Union of India, AIR 2011

SC 2365 (2389) : 2011 (6) SCALE 86 : 2011 AIR SCW 3469 :
JT 2011 (6) SC 505 .
89 M. Pentiley Pentiah v. Veeramallappa Muddala , AIR 1961

SC 1107 (1111) : 1961 (2) SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of
Assam,
1990 SC 123 (152) :
(1989) 3 SCC 709 [
LNIND 1989 SC 726 ].
Page 38 of 41
90 Corporation of Calcutta v. Liberty Cinema , AIR

1965 SC 1107 (1113, 1114) :
1965 (2) SCR 477 [
LNIND 1964 SC 354 ].
1 Salman v. Duncombe,
(1886) 11 AC 627 (634) (PC).
2 Fawcett Properties v. Buckingham County Council ,

(1960) 3 All ER 503 (507) (HL) (Lord COHEN). A law which affects fundamental
rights and is so vague that the persons applying it are in a boundless sea of uncertainty, may be declared
unconstitutional and void : K.A. Abbas v. Union of India , AIR
1971 SC 481 (496) : : AIR
1971 SC 481 :
1970 (2) SCC 780 [
LNIND 1970 SC 388 ]. It is the basic principle of legal jurisprudence that an
enactment is void for vagueness if its prohibitions are not clearly defined : Karat Singh v. State of Punjab ,
JT 1994 (2) SC 423 (466) :
1994 (3) SCC 569 . But a law may not be declared void for mere vagueness;
Municipal Committee, Amritsar v. State of Punjab, AIR
1969 SC 1100 :
1969 (3) SCR 447 [
LNIND 1969 SC 27 ].
3 Tinsukhia Electric Supply Co. Ltd. v. State of Assam , AIR

1990 SC 123 (152) :
(1989) 3 SCC 709 [
LNIND 1989 SC 726 ].
4 National Insurance Co. Ltd. v. Laxmi Narian Dhut, AIR 2007

SC 1563 (1572) :
(2007) 3 SCC 700 [
LNIND 2007 SC 275 ].
5 Shreenath v. Rajesh, AIR 1998

SC 1827 (1828) :
(1998) 4 SCC 543 [
LNIND 1998 SC 435 ].
6 A.N. Roy v. Suresh Sham Singh, AIR 2006

SC 2677 (2681) :
(2006) 5 SCC 745 [
LNIND 2006 SC 464 ].
7 C. Abdul Nasar v. Secretary, Regional Transport Authority,

AIR 2012 Ker 142 (147) (DB).
8 P.V. Narsimha Rao v. State (CBI/SPE), AIR 1998

SC 2120 (2158) :
(1998) 4 SCC 626 [
LNIND 1998 SC 1259 ].
Page 39 of 41
9 ICICI Bank Ltd. v. SIDCO Leather Ltd., AIR 2006

SC 2088 (2096) :
(2006) 10 SCC 452 [
LNIND 2006 SC 328 ].
10 Rania Bratch Co-operative Transport Society Ltd. v. State of Haryana, AIR 2012 P&H 81
(84) :
(2012) 166 PLR 30 (FB).
11 Bhuri Nath v. State of J & K, 1997 A

SC 1711 (1724) :
(1997) 2 SCC 745 [
LNIND 1997 SC 1972 ] ; State of Bihar v. Bihar Distillery Ltd ., A
1997 SC 1511 :
(1997) 2 SCC 453 [
LNIND 1996 SC 2869 ].
12 State of Rajasthan v. Fakir Mohd.,

2000 Cri LJ 4289 (4293) (Raj) :
2000(3) Raj LR 44 .
13 S.P. Industries Co. Ltd. v. Electricity Inspector and E.T.I.O., AIR 2007
SC 1984 (1999) :
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ].
14 Suresh Lohiya v. State of Maharashtra,

(1996) 10 SCC 397 [
LNIND 1996 SC 1318 ] (401) :
(1996) 3 Crimes 149 .
15 Indian Handicrafts Emporium v. Union of India,

(2003) 7 SCC 589 [
LNIND 2003 SC 718 ] (625): AIR
2003 SC 3240 .
16 Gyan Prakash v. General Manager, Ordinance Factory, Khamaria ,

AIR 2007 MP 118 (126) (DB).
17 M/S Delhi Airtech Services Pvt. Ltd. v. State of U.P., AIR

2012 SC 573 (602) :
JT 2011 (9) SC 440 [
LNIND 2011 SC 788 ]:
2011 (9) SCALE 201 [
LNIND 2011 SC 788 ] :
[2011] 12 SCR 191 [
LNIND 2011 SC 788 ].
18 Kotak Mahindra Investment Ltd. v. Kitply Industries Ltd.,

AIR 2012 Cal 24 [
LNIND 2011 CAL 1124 ] (26) (DB).
Page 40 of 41
19 Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group , AIR 2006
SC 1489 (1511) :
(2006) 3 SCC 434 [
LNIND 2006 SC 164 ].
20 Indra Kumar Patodia v. Reliance Industries Ltd., AIR

2013 SC 426 (431) :
2012 (11) SCALE 271 [
LNIND 2012 SC 737 ].
21 Maruti Udyog Ltd. v. Ram Lal , AIR

2005 SC 851 (861) :
(2005) 2 SCC 638 [
LNIND 2005 SC 81 ].
22 Nathi Devi v. Radha Devi Gupta , AIR

2005 SC 648 (657) :
(2005) 2 SCC 271 [
LNIND 2004 SC 1268 ].
23
Employees Provident Fund Commissioner v. O.L. of Esskay Pharmaceuticals Ltd., AIR
2012 SC 11 .
24 Ishwar Nagar Co-operative Housing Building Society v. Parma Nand Sharma, AIR
2011 SC 548 (555) :
(2010) 14 SCC 230 [
LNIND 2010 SC 1095 ] :
JT 2010 (12) SC 355 .
25 B. Premanand v. Mohan Koikal, AIR 2011

SC 1925 (1931) :
(2011) 4 SCC 266 [
LNIND 2011 SC 301 ] : 2011 AIR SCW 2546 :
2011 (3) SCALE 598 [
LNIND 2011 SC 301 ] :
JT 2011 (9) SC 130 .
26 G.V. Sreerama Reddy v. Returning Officer, AIR

2010 SC 133 (136) :
(2009) 8 SCC 736 [
LNIND 2009 SC 1665 ] :
2009 (11) SCALE 432 [
LNIND 2009 SC 1665 ] :
JT 2009 (10) SC 316 [
LNIND 2009 SC 1665 ].
27 Kari Singh v. Emperor ,

(1913) 40 Cal 433 ; Gokul Mandar v. Pudmanund Singh ,
(1902) 29 Cal 707 .
28 Satyabadi Behara v. Hirabatti ,

(1907) ILR 34 Cal 223; Bangsa Das v. Gena Lal , (1911) 12 Ind Cas 155 (Cal);
Mohammad Shafikul Haq v. Krishna Gobinda , (1918) 47 Ind Cas 428 (Cal); Chotesa v. Maktum Bi ,
Page 41 of 41
AIR 1928 Nag 223 ; Raj Narain v. Sukha Nand Ram Narain ,
AIR 1980 All 78 (81, 82) (DB) : 1979 All WC 637.
29 Vasudev Ram Chandra Shelat v. P.J. Thakar,

(1974) 2 SCC 323 [
LNIND 1974 SC 195 ] (329) : AIR 1974 SC (1728). ; Lachhminarayan v. Janmaiji
Mahton ,
AIR 1953 Pat 193 : 1953 BLJR 135 (DB).
30 Bharat Petroleum Corporation Ltd. v. P. Kesavan , AIR 2004

SC 2206 (2210) :
(2004) 9 SCC 772 [
LNIND 2004 SC 434 ].
31 The Corporation of Calcutta v. Kumar Arun, (1935) 60 CLJ 312 ; Satyabadi v. Harabadi ,
(1907) 34 Cal 223 ; Jatindra Chandra v. The Ranpur Tobacco Co. Ltd. ,
AIR 1924 Cal 990 ; Mayashankar v. Burjorji ,
(1925) 27 Bom LR 1449 ; Kishorilal v. Krishna-Kamini ,
(1910) 37 Cal 377 (382); Chotesha v. Maktum Bi ,
AIR 1928 Nag 223 ; Hotchand v. Kishinchand , AIR 1924 Sind 23 ; Shafikul Huq v.
Krishna Gobinda ,
(1918) 23 CWN 284 ; Bhupendra Nath v. Wajihunnissa , (1918) 2 P.LJ 293; Amir
Bibi v. Arokiam,
(1918) 34 MLJ 184 [
LNIND 1917 MAD 287 ] (187); Thiruvengadachariar v. Ranganath Iyengar,
(1903) 13 MLJ 500 [
LNIND 1903 MAD 69 ] ; Alamelu Ammal v. Balu Ammal,
(1914) 28 MLJ 685 ; Latchmiammal v. Gangammal , (1910) 34 Mad 72 ; Gyannessa
v. Mabarakannessa ,
(1897) 25 Cal 210 ; Pallayya v. Ramavadhamulu,
(1903) 13 MLJ 364 [
LNIND 1903 MAD 38 ] ; H.V. Low & Co. Ltd. v. Pulinbiharilal , (1932) 59
Cal 1372 (1384).
32 Kalyan Das v. Jan Bibi ,

(1929) 51 All 454 ; Maharaja of Jeypore v. Rukmini , (1919) 42 Mad 589 (598);
Mayashankar v. Burjorji ,
(1925) 27 Bom LR 1449 : 59 IA 236 (246); Muhammad Raza v. Abbas Bandi Bibi ,
59 IA 236 (246).
33 (1887) 11 Bom 551 : 14 IA 89 (96).
34 Venkatacharyulu v. Venkatasubba Rao , (1925) 48 Mad 821 (824).
End of Document
S. 1. Short title, Commencement, Extent
Darashaw Vakil
VOLUME I > CHAPTER I PRELIMINARY
Chapter I PRELIMINARY
Short title. This Act may be called the

TRANSFER OF PROPERTY ACT, 1882 .
Commencement.
It shall come into force on the first day of July, 1882.
Extent.
1
[It extends 2 in the first instance to the whole of India except 3 [the territories which,
immediately before the 1st November, 1956, were comprised in Part B States or in the States of] Bombay,
Punjab and Delhi.]
4
[But this Act or any part thereof may by notification in the Official Gazette be
extended to the whole or any part of the 5 [said territories] by the 6 [State] Government concerned.]
7 [And any State Government may 8 [* * * *] from time to time, by notification in the
Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by
such State Government from all or any of the following provisions, namely : —
Sections 54, paragraphs 2 and 3, 59, 107 and 123.]
9 [Notwithstanding anything in the foregoing part of this Section section, 54,
paragraphs 2 and 3 and Sections 59, 107 and 123 shall not extend or be extended to any district or tract of
Page 2 of 3
country for the time being excluded from the operation of the Indian
Registration Act ,10 [1908] (16 of 1908), under the power conferred by the first section of that Act
or otherwise.]
1 Subs. by the A.O. 1950, for original third paragraph.
2 The application of this Act was barred in the Naga Hills District, including the Mokokchang Sub- Division,
the Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasea and Jaintia Hills and the Mikir Hills
Tract, by notification under Section 2 of the Assam Frontier Tracts Regulation, 1880 (2 of 1880). These areas now form
parts of Nagaland and Meghalaya States and Union Territories of Mizoram and Arunachal Pradesh, see Act 81 of 1971.
The Acthas been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929),
Section section, 2, and continued in force, with modifications, in the territory transferred to Delhi Province by the Delhi
Laws Act, 1915 (7 of 1915), Sec tion 3 and Sch. III. It has also been partially extended to Berar by the
Berar Laws Act, 1941 (4 of 1941). The Act has been extended with effect from 1st January, 1893, to
the whole of the territories, other than the Schedule Districts, under the administration of the Govt. of Bombay. Sections
section, 54, 107 and 123 have been extended from 6th May, 1935 to all Municipalities in the Punjab and to all notified
areas declared and notified under Section 241 of the Punjab Municipal Act, 1911 (Pun. Act 3 of 1911),see Punjab
Gazette, Extra., 1925, p. 27. These sections and Section 129 have been extended to certain areas in Delhi Province,
see Notifications No. 198/38-III, dated 30th May, 1939, Gazette of India, 1939, Pt. I, p. 918, and No. 61/40-Judl., dated
16th November, 1940, Gazette of India, 1940, Pt. I, p. 1639, respectively. The Act has been extended to Manipur by the
Union Territories (Laws) Amendment Act, 1956 (68 of 1956). It has been rep. as to Government Grants by the
Government Grants Act, 1895 (15 of 1895) and rep. or modified to the extent necessary to give effect
to the provisions of the Madras City Tenants Protection Act, 1921 (Mad Act 3 of 1921) in the City of Madras;see Section
13 of that Act.
It has been amended in Bombay by Bombay Act 14 of 1939, and in Uttar Pradesh by Uttar Pradesh Act (24 of 1954).
It has been extended to Pondicherry by Act (24 of 1954). S. 3, Sch., Part 1.
It has been extended to Sikkim w.e.f. 1-9-1984 vide S.O. 529(E) of 1983 and S.O. 640(E) of 1984.
3 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "Part B States".
4 Subs. by the A.O. 1937, for the original paragraph.
5 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "said States".
6 Subs. by the A.O. 1950, for "Provincial".
7 Subs. by Act 3 of 1885, S. 1, for the original para.
8 The words "with the previous sanction of the Governor General in Council" omitted by Act 38 of 1920, S. 2
and Sch. I.
9 Added by Act 3 of 1885, S. 2 (with retrospective effect). Section 54, paras 2 and 3 and sections 59, 107
and 123 extend to every cantonment— see S. section, 287 of the
Cantonments Act, 1924 (2 of 1924).
10 Subs. by Act 20 of 1929, S. 2, for "1877".

Page 3 of 3
End of Document
S.1(A)
Darashaw Vakil
COMMENTS
Legislative Changes. —The only change made by the Transfer of Property (Amendment) Act, 20 of
1929, is to substitute for the year "1877" the year of the
Registration Act now in force, namely, "1908."
Scope and application. —The Act deals with transfers inter vivos only.
The
Transfer of Property Act, 1882 embodies mostly the principles of justice, equity and good conscience. In
view of the codification of such principles in India, the principles of equity shall stand modified to the extent of
provision otherwise in the
Transfer of Property Act .11 The scope of the
T.P. Act , is confined to transaction, in other words, create or extinguish right, title or interest of any
property and the meaning of such transfer of such right, title and interest.12
The mortgage was executed in an area where the

T.P. Act was not applied at the relevant time. This fact does not come in the way of declaring a clog on
the equity of redemption if the circumstances so demanded.13
Where a case is not contemplated by any of the provisions of the

T.P. Act , High Courts as Courts of Equity are entitled to administer principles of equity as laid down by
English or Indian decisions not distinctly prohibited by statute.14 The Courts should be very careful in applying
statutory provisions and the assistance of the
Transfer of Property Act as a guide on matters which have been excluded from the purview of the Act by
express words should not be invoked, unless the provisions of the Act embody principles of general application.15
The provisions of
T.P. Act , are applicable in cases of public premises.16 The
Transfer of Property Act operates prospectively. Section 114-A applies only to leases executed under
Page 2 of 10
S.1(A)
the
T.P. Act .17
The
Transfer of Property Act has not been repealed by the UP Rent Control and Eviction Act, 1947(3 of
1947).18
Commencement. —The Act came into force on the 1st day of July, 1882 on which date it was made to
extend to the whole of British India except the territories administered by the Governors of Bombay, the Punjab and
British Burma.
Extent. —The
Transfer of Property Act , when enacted was extended to the whole of British India except certain parts
of it and did not apply in former princely States. On 26.1.1950, New India emerged, consisting of the former British
India and the formerly princely States, India then consisted of States mentioned in Part A, Part B and Part C of the
First Schedule to the
Constitution of India and the territories mentioned in Part D of the said First Schedule. The Adaptation of
Laws Order, 1950, amended paragraph 3 of Section 1 and the Act was extended to whole of India except Part B
States, Bombay, Punjab and Delhi.
The application of this Act was barred in the Naga Hills District, including the Mokokchang Sub-division, the
Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasia and Jaintia Hills, and the Mikir Hills
Tract, by notification under Section 2 of the Assam Frontier Tracts Regulation, 1880 (2 of 1880). 19 It does not
extend to Native States save in certain States where it has been enacted as a Regulation, the word "Act" being
substituted by the word "Regulation".
Rajkot, 20 Wadhwan, 21 Kathiawar, 22 Secunderabad 23 were not British Indian territory nor were lands occupied by an
Indian Independent State Railway. 24
Other references. —The Lieutenant-Governor of the Punjab is now Governor of the Punjab. British
Burma is now Lower Burma. 25 The Chief Commissioner of British Burma is now Governor of Burma.
Bombay. —Act IV of 1882 has been extended with effect from 1st January 1893, to the whole of the
territories other than the Scheduled Districts, under the administration of the Government of Bombay. 26
Sind. —The whole Act has been extended with effect from 1st January 1915, to the province of Sind. 27
Page 3 of 10
S.1(A)
Berars. —The Act was extended to Berars in 1907. 28 Prior to 1907 the principles embodied in the Act
were applied as principles of equity and good conscience. It is foreign territory. 29
Burma. —The whole Act has been extended with effect from 22nd December 1924 to the whole of
Burma except certain specified areas. 30
Bangalore. —The Civil and Military Station of Bangalore is an area in the Mysore State. A notification
made under the Indian Foreign Jurisdiction Order, 1902, has declared that the Act shall apply in the station so far
as applicable thereto. 31
Mysore. —Enacted as Regulation IV of 1918 it has been extended to the whole of Mysore. It received
the assent of His Highness the Maharaja on the 14th day of March 1918. 32
Secunderabad and Aurangabad. —Only Section 10833 is made applicable. 34 The whole of it is now
extended by notification No. 418 of the Foreign Department dated 2nd August 1932. The Hyderabad State
Transfer of Property Act is on the same lines as the Act with slight modification to suit local conditions. It
came into force on 5th April, 1928.
Other Cantonments. —The Act has been applied to Mhow, Neemuch and Nowgong and the Indore
Residency Bazars, being administered areas in Central India. 35
Pepsu. —Though the

T.P. Act does not apply to the State of Pepsu, but the principles underlying the Act would apply.36
The Punjab. —In the Punjab the principles of the Act apply but it is necessary to show that a principle
has been transgressed as opposed to the non-observance of prescribed formalities. 37 Though the provisions of
T.P. Act , are not applicable to the State of Punjab, the principle enunciated in Section 55(6) (b) has been
held applicable on the grounds of justice, equity and good conscience.38 The general principles of the
Transfer of Property Act relating to lease are applicable in the State of Punjab.39
Although the equitable principles underlying the Act are followed, the Act itself with its technicalities does not apply.
40
Delhi. —In the absence of any notification under

Section 1 of the Transfer of Property Act extending that Act to Delhi the mere fact that Delhi ceased to
Page 4 of 10
S.1(A)
be a part of the Punjab did not automatically bring the Act into operation in Delhi.41 The Transfer of Property was
extended to Union Territory of Delhi from 1st December 1962. 42
Where tenancy commenced prior to 01.12.1962, the notice need not strictly comply with
Section 106 of the T.P. Act . Notice of 15 days’ time is sufficient to determine the monthly tenancy in
such cases.43
Madras. —The Act has been repealed or modified to the extent necessary to give effect to the
provisions of Madras Act 3 of 1922, in the City of Madras. 44
Kerala State. —The provisions of the

Transfer of Property Act were made applicable to Travancore area of the State of Kerala in respect of
agriculture lands from 1st July 1955. Before that though the provisions of
T.P. Act , did not apply proprio vigore , they were applied as principles of justice, equity and good
conscience. 45
When the
T.P. Act , was not applicable to the area erstwhile Travancore State, the questions relating to transfer of
property were decided in the concerned area, when the matter was not covered by the rules of common law, on
general rules of justice, equity and good conscience.46
Madhya Bharat. —The

Transfer of Property Act came into force in the State of Madhya Bharat on 1st April, 1951.47
Sikkim. —The provisions of the

T.P. Act , did not apply to Sikkim,48 and the Act was enforced in the State from 1.9.1984.
Crown grants. —The Act has been repealed as to Crown grants by the Crown Grants Act, 1895 (15 of
1895).
Power to extend. —Powers are reserved by the Act to the Governors of Bombay, the Punjab and
British Burma to extend the whole or any part of the Act to the whole or any specified part of the territories under
their respective administration from time to time by notification in the local official Gazette .
Extend this Act or any part thereof. 49 —The power to extend any part of the Act did not
authorize a Local Government to extend particular sections of the Act so as to give those sections a different
Page 5 of 10
S.1(A)
operation from that which they had in the Act itself read as a whole. The Local Government of Lower Burma by
notification extended in 1904 various sections including Section 123 but not in terms Section 129 to the Pegu
District. The rule of Mahomedan Law that a gift is not valid unless possession has been delivered is preserved by
Section 129 of the Act. In 1914 a Mahomedan conveyed immovable property in the Pegu District to his wife by a
registered deed. He effected mutation into her name but continued to manage the property himself. It was held that
the Local Government was not authorised by section 1 to extend Section 123 apart from Section 129 and
consequently that the above rule of Mahomedan Law applied and the gift was valid. 50 Legislation, conditional on
the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in
whom it places confidence, is not uncommon and, in many circumstances, it may be highly convenient. 51
In the undermentioned case the Supreme Court expressed great concern as to why the
Transfer of Property Act is not being extended to the concerned states even now. Its extension would
ensure that no transfer is effected without satisfying the requirements of that Act and of the Stamp and Registration
Acts.52
Exemption for certain provisions. —Powers are given to the Local Governments from time to time by
notification in the Official Gazette to exempt any part of the territories administered by them either retrospectively or
prospectively from all or any of the following provisions, namely, Section 54, paragraph 2 (transfer of tangible
immovable property of the value of one hundred rupees or upwards or in the case of a reversioner or other
intangible things) and paragraph 3 (transfer of tangible immovable property of a value less than one hundred
rupees), Section 59 (mortgage where to be by assurance), Section 107 (leases of immovable property how made),
and Section 123 (gift of moveable and immovable property how effected).
Limit of Local Governments on powers of extension. —The powers of the Local Governments
mentioned in the section to extend the whole or part of the Actare limited so as not to extend to any district or tract
of country excluded from the operation of the
Registration Act, 1908 , under the power conferred by the first section of that Act or otherwise.
The excepted sections. —Sections 54 (paragraphs 2 and 3), 59, 107 and 123 of the Act have been
extended with effect from 1st January 1908 to the Settlement of Aden and to Sheikh Othman 53 and to every
cantonment in British India. 54
Notification.—Notification cannot override the related statutory provisions of the

Transfer of Property Act .55
State Financial Corporation Act .—Provisions of the

State Financial Corporation Act , override any inconsistent provisions in other laws. At the same time,
they are in addition to and not in derogation of any other law applicable to an industrial concern. In the area of
remedies and reliefs, the provisions of the
State Financial Corporation Act , would apply even though they are inconsistent with the provisions of the
Transfer of Property Act or the
Code of Civil Procedure, 1908 , at the same time, they provide additional remedies and reliefs, in
addition to those provided in the
Page 6 of 10
S.1(A)
Transfer of Property Act or the

Code of Civil Procedure, 1908 .56
Public Premises (Eviction of Unauthorized Occupants) Act, (40 of 1971). —The provisions of Public
Premises (Eviction of Unauthorized Occupants) Act, (40 of 1971) have an overriding effect over the provisions of
Transfer of Property Act and a lessee of the public premises cannot be allowed to have recourse to the
provisions of
Transfer of Property Act after the expiry of his lease.57
U.P. Industrial Area Development Act, 1976. —The U.P. Industrial Area Development Act, 1976 is a
special law, and hence it will prevail over the
Transfer of Property Act which is a general law in case of any inconsistency.58
Repeal of Act s.
11 Nalakath Sainuddin v. Koorikadan Sulaiman , AIR 2002

SC 2562 (2570) :
(2002) 6 SCC 1 [
LNIND 2002 SC 410 ].
12 Murat Viniyog Ltd. v. Registrar of Assurances ,

AIR 1989 Cal 65 [
LNIND 1988 CAL 19 ] (70).
13 Ghanchi Aliaamad Umar v. G.G. Ranganathgarji ,

1995 AIHC 134 (149) (Guj).
14 Raj Narain v. Sukha Nand Ram Narain ,

AIR 1980 All 78 (82) (DB) : 1979 All WC 637.
15 Namdeo Lokman Lodhi v. Narmadabai , AIR

1953 SC 228 (232) :
(1953) SCR 1009 [
LNIND 1953 SC 25 ] ; Krishna Shetti v. Gilberi Pinto ,
AIR 1919 Mad 12 : (1919) 42 Mad 654.
16 Prabhakari Adhikari Devasthan Dept, Jodhpur v. Jamsher Ali ,

1999 AIHC 225 (227) :
1998 (3) Raj LW 1918 (Raj).
Page 7 of 10
S.1(A)
17 S.G. Gadi v. M.M.S.R. Desai ,

AIR 1969 Goa 42 .
18 Janki Prasad v. Harish Chandra ,

AIR 1960 All 211 [
LNIND 1959 ALL 124 ] (212) (DB) :
ILR (1959) 2 All 284 .
19 Assam Local Rules and Orders, Vol. 1, pp. 616-18.
20 Queen-Empress v. Abdul Latib , (1885) 10 Bom 186.
21 Emperor v. Chimanlal ,
(1912) 14 Bom LR 876 [
LNIND 1912 BOM 145 ].
22 Hemchand Devchand v. Chhotamlal ,

(1906) 33 Cal 219 : 33 IA 1.
23 Hoosain Ali v. Abid Ali ,

(1894) 21 Cal 177 ; Anantapadmanabhaswami v. The Official Receiver of
Secunderabad,
(1933) 35 Bom LR 747 .
24 Muhammad v. Queen-Emress ,
(1897) 25 Cal 20 : 24 IA 137.
25 Burma Laws Act, 1898 (13 of 1898).
26 Bombay Rules and Orders , Vol. II, pp. 19-95.
27 Bombay Rules and Orders, Vol. II, p. 195.
28 Sheoram v. Jamnabai , (1923) 19 Nag LR 18; Kisanlal v. Abdulla ,

AIR 1923 Nag 88 .
29 Gangaram Tekchand v. Dharamsi Jetha & Co. , (1936) 31 Nag 43, 2nd Supp.; Syed
Imam v. Mahomed Sikander , (1908) 4 Nag LR 357; Barijrao v. Sardarmal , (1934) 31 Nag LR 357.
30 Burma Gazette, 1924, Pt. 1, p. 1082.
31 Papiah Naidu v. Naganatha ,

(1931) 58 IA 333 .
Page 8 of 10
S.1(A)
32 Mysore Code , Volume VI.
33 Krishnachandra v. President, Agency District Board , (1929) 52 Mad 1.
34 See British Enactments in force in Indian States, Vol. 5, p. 1.
35 See British Enactments in force in Indian States, Vol. 3, p. 3.
36 Ram Chand Jagta Mal Aggarwal v. Mathura Das Jiwan Mal Kalak Ram ,
AIR 1955 NUC 4003 (Pepsu).
37 Jhunam v. Dulia , (1923) 4 Lah 439 (destruction of the equity of redemption).
38 Tara Singh v. Kehar Singh , AIR 1989

SC 1426 (1430) : 1989 Supp (1) SCC 316; Tilkram Rambaksh v. Bank of Patiala ,
AIR 1959 P&H 440 (DB) : ILR 1959 P&H 1384; Ram Gopal Dula Singh v. Sardar Gurbux Singh ,
AIR 1955 Punj 215 (DB); Shankari v. Milkha Singh,
AIR 1941 Lah 407 (FB) :
1971 SC 282 :
(1941) 43 PLR 656 ; Fazal Karim v. Mahomed Karim ,
AIR 1942 Pesh 43 .
39 Surjit Singh v. Rattan Lal , AIR 1980 P&H 319 (320) (DB).
40 Teja Singh v. Kalyan Das-Chet Ram , (1925) 6 Lah 487 (oral assignment of debt); Mool
Chand v. Ganga Jal , (1930) 11 Lah 258 (lis pendens) Dula Singh v. Bela Singh ,
AIR 1925 Lah 92 (covenant for title); Kanwar Ram v. Ghugi ,
AIR 1928 Lah 148 ; Sheik Mohammad Abdullah v. Mohammad Yasin ,
AIR 1933 Lah 151 .
41 Ralli Brothers v. Punjab National Bank Ltd ., (1930) 11 Lah 564.
42 Manohar Singh v. Ram Nath Chitkara ,

AIR 1981 Del 129 [
LNIND 1981 DEL 38 ] (131).
43 Manohar Singh v. Ram Nath Chitkara ,

AIR 1981 Del 129 [
LNIND 1981 DEL 38 ] (131); Batoo Mal v. Rameshwar Nath ,
AIR 1971 Del 98 [
LNIND 1970 DEL 99 ].
44 Section 13 of Madras Act, 3 of 1922.
45 Lakshmi Pillai v. Easware Pillai ,

AIR 1977 Ker148 [
LNIND 1977 KER 85 ] (151) :
Page 9 of 10
S.1(A)
(1977) 2 Ker 187 :

(1977) KLT 464 (FB).
46 Krishna Menon Bhaskara Menon v. Madhavan ,

AIR 1976 Ker 62 [
LNIND 1974 KER 153 ] (64) (DB).
47 Madan Gopal v. Sohan Lal ,

AIR 1957 MB 133 (134).
48 Bishnu Kala Karki Dholi v. Bishnu Maya Darjeeni, AIR 1980 Sik 1 (6); Kul Bahadur
Gurung v. Gajendra Gurung ,
AIR 2007 Sikkim 23 (27) :
2007 AIHC 260 NOC : (2007) 2 AIR Jhar (NOC) 565.
49 Inserted by S. 2 of the Transfer of Property (Amendment) Act, 1904 (6 of 1904).
50 Ma Mi v. Kallander Ammal, (1927) 5 Rang 7 : 54 IA 23; Emnabai v. Hajirabai , (1888) 13

Bom 352 ; Amina Bibi v. Katja Bibi , (1864) 1 Bom HC 157 approved.
51 Queen v. Burah ,
(1879) 4 Cal 172 , 5 IA 178.
52 Som Dev v. Rati Ram , AIR

2006 SC 3297 (3303, 3304) :
(2006) 10 SCC 788 [
LNIND 2006 SC 693 ].
53 Bombay Rules and Orders, Vol. II, p. 194.
54
Section 287, Cantonments Act, 1924 (2 of 1924).
55 Bishnu Kumar Rai v. Mahendra Bir Lama ,

AIR 2005 Sikkim 33 (39) (DB).
56 Thressiamma Varghese v. K.S.F. Corpn .,

AIR 1986 Ker 222 [
LNIND 1986 KER 124 ] (226) (DB).
57 Delhi State Industrial Development Corpn. Ltd. v. K.C. Bothra,

2004 AIHC 145 (157) :
2003 (108) DLT 447 : 2004 (16) All India Cases 344 (Del).
58 NOIDA v. Dabur Containers (Pvt.) Ltd. , 2004

AIHC 2873 (2877) (DB) (All).
Page 10 of 10
S.1(A)
End of Document
(IN) Darashaw Vakil: The Transfer of Property Act
Darashaw Vakil
S. 2.
S. 2. In the territories to which this Act extends for the time being the
enactments specified in the Schedule hereto annexed shall be repealed to
the extent therein mentioned. But nothing herein contained shall be deemed
to affect—
Saving of certain enactments, incidents, rights, liabilities, etc .
( a ) the provisions of
any enactment not hereby expressly repealed;
( b ) any terms or
incidents of any contract or
constitution of property which are consistent with the provisions of this Act, and
are allowed by the law for the time being in force;
( c ) any right or
liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any
such right or liability; or
( d ) save as
provided by Section 57 and Chapter IV of this Act, any transfer by operation of law, or by, or in execution of, a
decree or order of a Court of competent jurisdiction,
And nothing in the second chapter of this Act shall be deemed to affect any rule of
59 [* * *] Muhammadan 60 [* * *] law.
59 The word "Hindu" omitted by Act 20 of 1929, Section 3.
60 The words "or Buddhist" omitted by Act 20 of 1929, Section 3.

Page 2 of 2
End of Document
S.2(A)
Darashaw Vakil
COMMENTS
Legislative Changes. —Hindus and Buddhists were formerly excluded from the operation of the
second chapter relating to Transfer of Property whether moveable or immovable. By the
Amending Act , 20 of 1929, it has been made applicable to them.
Scope and application. —The transfer of property where the

Transfer of Property Act , applies has to be under the provisions of the
T.P. Act only, and Mohammedan Law of transfer of property cannot override the statute law.61 Wherever
the
T.P. Act , is in force Mohammedan Law or any other personal law is inapplicable to transfer and no title
passes except in accordance with that Act.62
The Courts should be very careful in applying statutory provisions and the assistance of the
Transfer of Property Act as a guide on matter which have been excluded from the purview of the Act by
express words should not be invoked, unless the provisions of the Act embody principles of general application.63
Section 59 of the T.P. Act does not come into play in regard to instruments falling within the purview of
O. 21, R. 34. In case of conflict between the two, the former must yield to the latter by reason of Cl. (a) of Section
2.64
"Herein". —This word means "in this Act" and not "in this section" 65 but in Srinath Das v. Khetter
Mohun Sing 66 Lord Hobhouse, delivering judgment, stated as follows:—
"The subsequent creation of suits for foreclosure could not, except by clear enactment, revive the extinct right, and
in effect the clear enactment is the other way, for Section 2, cl. (c) of the
Transfer of Property Act says that nothing therein shall affect ‘any right or liability arising out of legal
Page 2 of 15
S.2(A)
relation constituted before this Act comes into force, or any relief in respect of such right or liability.’ "
Here the word "therein" governs Section 2, clause (c). As for the case of Jibanti Nath Khan v. Gokool Chunder
Chowdry , 67 it is enough to say that that case was decided without reference to the Act; the patni lease in that case
was granted and the patni created before the Act came into operation.
"Affect." —This is a term which means either validate or invalidate. The phrase "be deemed to affect"
has frequently been interpreted to mean "shall apply to"—a construction which it is submitted is erroneous.
Clause (a). —Clause (a) saves enactments not expressly repealed.
Repeal of Acts. —This Act repeals Statutes, Acts and Regulations specified in the Schedule but saves
enactments, incidents, rights, liabilities and transfers mentioned in the clause that follow :
As observed by Bovill, C.J., in R. v. Champneys : 68 "It is a fundamental rule in the construction of statutes, that a
subsequent statute in general terms is not to be construed to repeal a previous particular statute, unless there are
express words to indicate that such was the intention, or unless such an intention appears by necessary
implication." The reason for the presumption against a repeal by implication in these cases, as stated by WOOD,
V.C., is "in passing a special Act, the Legislature had their attention directed to the special case which the Act was
meant to meet, and considered and provided for all the circumstances of that special case ; and, having done so,
they are not to be considered by a general enactment passed subsequently, and making no mention of any such
intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised
and regulated". 69
C , a registered khatedar of certain unalienated lands, executed a rajinama on August 11, 1904 of the
khata in favour of D , who undertook to pay the land revenue thereafter. In 1911, C , by a registered sale deed, sold
the lands to the plaintiff, who filed a suit for possession from D . It was held that the method of relinquishment
adopted in 1904 was that provided by Section 74 of the Land Revenue Code made more easy by 90 of the
Registration Act (XVI of 1908) which exempted such rajinama from registration. The contention that in
the absence of a registered sale deed as required by Section 54 of the present Act the deed of relinquishment could
not operate to transfer ownership to D was rejected, inasmuch by reason of clause (a) of section 2 nothing in the
present Act could affect a relinquishment made by law then existing. 70 A patnidar is entitled to manufacture bricks
in the absence of a clause in the patni lease forbidding it. Patni taluks are really grants of the zemindar’s interest
without restrictions unless specially mentioned in the pattah . It is not possible to apply all the provisions of the
Transfer of Property Act by analogy to patni taluks. The
Transfer of Property Act contains a saving clause for the patnis governed by Regulation VIII of 1819. 71
Clause (b). —This clause relates to saving of terms or incidents of any contract or property. As an
illustration of clause (b) in this country a partition between co-owners does not require to be effectuated or
evidenced by a written document, and there is nothing in the Act to warrant the suggestion that the Legislature
intended to make any alteration in the recognized law on the subject. 72 Nor is there any provision of law requiring
Page 3 of 15
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that partitions or family settlements must be reduced to writing and the writing registered, though when reduced to
writing the point of registration may arise. 73 There is no prohibition in the
Transfer of Property Act 74
prohibiting an oral partition. A document affecting a division of status is not a
transaction affecting immovable property, such an interest is created not by virtue of the instrument but by operation
of the rules of Hindu Law. 75 The fact of partition may be proved by oral evidence although the deed embodying the
terms of partition cannot be proved for want of registration. 76 The date of giving and taking of possession by the
several sharer of their several lots would be held to be the date on which the joint holding ceased to be joint and
became several. 77 Right of partition is an incident of property held in joint tenancy or tenancy in common which by
virtue of
Section 2 (b) of T.P. Act is not affected by the said Act and partition of such property can by virtue of
Section 2 (b) be made orally. This is true not only of partitions between members of Joint Hindu Family but also of
partition between co-owners who hold property in joint tenancy or tenancy in common.78
Clause (c). —The general rule is that Acts are prospective and not retrospective in their operation. 79 To
this rule there are two exceptions. First, when Acts are expressly declared to be retrospective or placed in a
statutory form the rules of law which had already been adopted by the Courts in India 80 which are directed by the
several charters to proceed when the law is silent with justice, equity and good conscience and thus adopt the
English Law, 81 and secondly when they only effect the procedure of the Court. 82 A right of appeal is not a matter of
procedure. 83 Where a section mixes procedure and rights so much of it as regulates procedure is given a
retrospective effect, which is denied to the residue, 84 a proposition distinguished in a later case 85 both being under
the Deccan Agriculturist Relief Act XVII of 1879. Retrospective effect was given in the case of a mortgage of 1859
in the absence of a rule of law that prevailed at the time or on failure to establish that whatever was the law that
prevailed at the date of the mortgage it was not in conflict with the provisions of the Act and thus the specific rule in
Section 63 as to compensation between a mortgagor and mortgagee was applied and not the general rule laid
down in Section 51. 86 But it has been held that it was not possible to apply all the provisions in the
Transfer of Property Act by analogy to patni taluks. 87 The sections of the
Transfer of Property Act, 1882 , which related to procedure were consigned to the
Section 2 and
6 of the
General Clauses Act (X of 1897) came up for consideration in a suit for foreclosure under a deed of
conditional sale under Regulation XVII of 1806. Under the law in force by virtue of that Regulation a mortgagee had
the right of foreclosing the mortgage by notice served through the Court. This was a substantive right vested in the
mortgagee, for on the expiration of a year of grace he became absolute owner. It was held that this right was not
affected by theAct for it arose out of a relationship between the mortgagor and mortgagee constituted before the Act
came into operation. Consequently the right accruing to the mortgagee under the Regulation was saved by clause
(c). Then again, on the service of the notice for foreclosure a certain liability on the part of the mortgagor arose out
of that relation,viz. , losing the right of redemption. That liability also remained unaffected by this clause. A similar
effect follows from the provisions of clause 6 of the
General Clauses Act, 1897 .88 The same principle was applied where the mortgagee had acquired the
right of an absolute owner while the Regulation was in force, and sued for possession after the passing of the
present Act, the Court holding that the mortgagee was entitled to a decree such as he would have had if the
Regulation had been still in force. 89
Yet another case arose under the same Regulation which went up to the Privy Council which refused to revive an
extinguished right under the following circumstances:— The mortgagor’s right of possession under the Regulation
was brought to an end without a foreclosure suit and a right of entry accrued to the mortgagee whose suit for
possession became barred on the lapse of 12 years from the date the mortgagor’s right to possession determined.
The mortgagor sold parcels of the mortgaged land to purchasers without notice of the proceedings under the
Regulation. In a suit after the passing of the
Transfer of Property Act against the purchasers and the mortgagor for foreclosure and possession by a
transferee of the mortgagee’s interest, it was held that the mortgagor’s right of possession having been determined
in 1866, the mortgagor’s right of suing for possession became extinguished in 1878, such right was not revived by
the subsequent creation of suits for foreclosure on the coming into operation of the
Transfer of Property Act, 1882 , and that the title of the mortgagee’s transferee was barred by time, and
Page 4 of 15
S.2(A)
the suit against the purchasers was dismissed; as against the mortgagor who made no defence the right of
possession in the mortgagee consequent on the proceedings under the Regulation in force till its repeal in 1882
supported the decree made against him by the Courts below, from which he had not appealed.90 The Act deals with
substantive rights only and this saving clause has reference to rights acquired and liabilities incurred before the first
day of July 1882, the date on which the Act came into force. As distinguished from the first part of the clause the
latter part refers to the enforcement of that right or imposition of that liability. Hence the word "relief" has no
reference to the mode of that enforcement or imposition which is a matter of procedure prescribed by adjective law.
Thus the clause reproduces one of the canons for the interpretation of statutes, that a legal relation created before
the Act cannot be disturbed by any of its provisions. The provisions of Section 108, clause (o) prohibiting a lessee
from working mines or quarries not open when the lease was granted do not apply to a lease granted to 1865. 91 A
usufructuary mortgage was executed in 1846 under which the mortgagee had obtained possession and the profits
from the property had discharged the mortgage money with interest at 12 per cent per annum. Regulation XXXIV of
1803 was in force at the date of the mortgage. The mortgagor contended that he was entitled to redeem. The
mortgagee resisted redemption on the ground that the transaction was regulated by Act IV of 1882 and that he was
entitled to interest at the contract rate which was more than 12 per cent per annum. It was held by virtue of clause
(o) of Section 2, the rights and liabilities were saved and the provisions of the Regulation had not been disturbed by
operation of any subsequent legislation. 92 Again, the sections of the Act relating to notice do not apply to suits in
ejectment before the Act came into operation. 93 In a mortgagedeed executed before the Act its provisions do not
affect the rights and liabilities of the parties to the mortgage or the relief in respect of such rights or liabilities. 94
A had a money decree on 20-11-1881 against B and a mortgage-deed dated 6-10-1875. In execution of the money
decree A had the mortgage lands attached on 9-3-1882 and sold subject to the mortgage. He purchased them with
the permission of the Court and transferred to C and D . The order for sale was in April 1882. The Act came into
force on 1st of July 1882. It was held that the Act had no retrospective effect so as to disturb the legal relations
created before the Act came into force. 1 And so the incident of nontransferability attached to ordinary tenancies of
agricultural lands and tenancies from year to year of homestead lands are not affected by Section 108 (i) of this Act.
2 Nor does the Act affect a non-permanent tenure created before the Act. 3
The provision of
Section 111, T.P. Act , will not apply to the lease executed before the said Act came into force. Leases
executed before the
Transfer of Property Act came into force would thus be governed by the law that obtained before the
T.P. Act came to apply and that law consisted of the common law principles, which were usually held
applicable by all Courts in India. In case not governed by the
Transfer of Property Act , it is not necessary for a landlord to do any overt act showing an intention to
determine the lease nor is any notice to determine the lease necessary.4
Section 11 of the Bengal Tenancy Act imports that non-permanent tenures are not to be regarded as transferable.
Instances of sales of holdings recognized on payment of nazarana by the landlord do not prove usage of
transferability. The usage to be proved is a usage of sale. 5 A mokurari was created before the Act and patni was
granted of the zemindary within which the mokurari was created. In 1886 both the mokurari and patni were acquired
by the same individual. It was held that Section 111 (d) did not cause a merger of the two interests. 6 In cases
unaffected by the provisions of the Act the union of a superior and subordinate interest do not necessarily merge
yet the conduct of the party may show that he did not intend to keep the two interests alive as mutually distinct
rights. 7 The Privy Council, dealing with a case of denial of landlord’s title, refused to apply Section 111 (g) of the
Act as the provision was not retrospective and did not govern the case. 8 Hence the Act is not retrospective but a
different rule prevails in matters of procedure.
The right to relief arising from a certain jural relation existing between parties is a matter of adjective law and
Page 5 of 15
S.2(A)
consequently the parties are entitled, where a new remedy has been provided by a new Act at the time when the
relation subsists, to take advantage of that remedy in a Court of Law. And so where a mortgage by conditional sale
before the Act did not purport to sell but only contained a covenant by the mortgagor to relinquish all rights in the
property as if it had been sold on case of default in payment or stipulated date, the document was construed as a
mortgage by conditional sale and the remedies given by Section 67 was made available and that there was nothing
in Section 2 (c) to disentitle them from so doing. 9 In a suit for ejectment to avail of clause (c) defendant must
establish that her right as it exists at present arose of a legal relation constituted before the Act came into force. 10
Although the legal relation of mortgagor and mortgagee was constituted in 1879 the right to attach the property and
bring it to sale and the relief in respect of such right arose only out of the decree of 1884 which was subsequent to
the
Transfer of Property Act . The right to enforce the decree is a substantive right but the mode of enforcing
it is a matter of procedure.11 On a single mortgage bond dated 5th April 1879 the mortgagee filed a suit on 21st
January 1881 and obtained a decree on 31st July 1882. It was held that the pending suit was not governed by the
Act. It was not the intention of that section to render ineffectual suits instituted and decrees made under the
procedure in force before the Act was passed for every decree-holder would be obliged to file a suit under Section
67. 12 Before the Actthere was no distinction between agricultural and nonagricultural tenancies. And there was no
law before the
Transfer of Property Act under which agricultural holdings could be transferred against the will of the
landlord or subdivided without his consent.13 The provisions of
Sections 106 and
116 of
T.P. Act would not apply to lease executed before the enforcement of the Act.14
The provisions of the

Transfer of Property Act apply to the assignment of a mortgage made after that Act came into force
although the mortgage may have been made before the commencement of the Act.15
Clause (d). — Section 2, cl.(d) specifically provides that nothing contained in the
T.P. Act shall be deemed to affect any transfer by operation of law or by or in execution of a decree or
order of a Court of competent jurisdiction, same as provided by Section 57 and Chap. IV of the Act. The provisions
of the Act would not apply to the mortgagees created by the Court’s decree before the enforcement of the
T.P. Act in the State of Kerala.16 Section 2(d) clearly excludes the application of the provisions of Section
105 to the relationship, which has been created by a decree. The provisions of the said section would be invoked as
matters of justice, equity and good conscience, and in that respect the position may not be substantially different
from the position under the English law. 17 This clause does not exclude transfers mentioned from the operation of
this Act. It only enacts that the provisions of the Act shall not "affect" them. Even before the passing of the Act it
was held that under an execution sale the purchaser acquired title by operation of law. 18 A sale by the Official
Receiver under the
Provincial Insolvency Act is not a transfer by operation of law or by or in execution of a decree or order19
nor is a change created by a liquidator on the assets of a company in course of being wound up by authority of the
Court. 20 By reason of this clause the implied covenant for title in Section 55(2) is not annexed to the interest of a
transferee at a Court-sale. 21
Clause (d) of Section 2 read with the preamble makes it clear that the Act does not apply to transfers by operation
of law or by or in execution of a decree or order of a Court of competent jurisdiction. The transfers governed by this
Act are transfers by "act of parties". 22 A purchase at an auction sale is not a transfer as contemplated by the
Transfer of Property Act and is, therefore not validated or invalidated by anything contained in the Act.23
The provisions of the
Page 6 of 15
S.2(A)
Transfer of Property Act generally dealing kinds of transfers do not affect transfer by operation of law, or
by or in execution of a decree or order of a Court of competent jurisdiction under Section 2 (d)of the
If the property of the minor sold under the direction of the Guardians Court, such a sale is governed by Section 2 (d)
and would not be hit by Section 54. Such a sale would not require registration under Section 54, being a transfer in
execution of an order of a Court of competent jurisdiction. 25
"Dakhalnama" which is simply a document of delivery of possession cannot be said to be title deed and it can also
not be said to be the basis of claim or defence. 26
Where there was no transfer earlier in favour of the plaintiff making him owner of the suit property nor was there any
deed executed in this behalf, in the absence of any transfer as such, the plaintiff could not get declaration of his
being the owner of the suit land on the strength of the decree unless it was duly registered as provided under
Section 17 of the Registration Act, 1908 . In that situation the decree violated the provisions of
Section 17 of the Registration Act, 1908 and the defendant could not claim himself to be the owner of
the suit land on the basis of the decree alone even if it be assumed that there was no collusion or fraud as such
alleged or proved by the plaintiff.27
Nor do the provisions of Section 36 as to apportionment of rent 28 or those of Section 51 relating to improvements
made by bona fide holders under defective titles 29 apply to execution sales. Prior to its repeal by Act 2 of 1900 the
original Section 135 of the Act was held not to affect transfers in execution. 30 And a purchase by a legal practitioner
of a claim under a life insurance policy in execution is enforceable notwithstanding Section 136. 31 A security bond
obtained by the Court hypothecating immovable property to secure moneys due to minors is not affected by the Act
and an assignment thereof to the minors on attaining majority to enable them to realize the money from the security
need not be stamped or registered but may be made by an order of the Court nor is such an assignment to a third
person a transfer of an interest in immovable property being an authorization by the Court to sue upon it. 32
Holding that the purchase of a patni lease by the purchaser who was at that time zemindar of the property, affected
a merger under Section 11179 of the
Transfer of Property Act , it was pointed out that there was no distinction quo the law of merger between
the result of a transfer by act of parties and one by operation of law and that
what clause (d) of Section 2 meant was that the various provisions in the Act regulating and codifying the law as to
actual transfers by act of parties should not affect transfers by operation of law. 33
Clause 2(d) and Section 5. —The positive provision contained in Section 2 (d) prevails over the
definition of "transfer of property" prescribed by Section 5. 34
Page 7 of 15
S.2(A)
Where the transfer is not a transfer by operation of law or by or in execution of a decree of Court, then it would not
fall within the exception under
Section 2 (d) of the T.P. Act .35
The provisions of the T. P. Act shall not affect any transfer by operation of law or in execution of a decree or order
of a Court of competent jurisdiction. 36
The provisions of
Transfer of Property Act shall not affect any transfer by operation of law or in execution of a decree or
order of a Court of competent jurisdiction.37
The Punjab. —The Act has not been extended to the Punjab though the Courts there apply its
provisions as embodying the principles of the common law based on equity, justice and good conscience. It has,
however, been held there that clause (d) contains a highly technical provision which could not be invoked to defeat
a creditor’s suit for a declaration that the debtor has transferred property to defeat or delay creditors. 38 A contrary
view is, however, held by the Allahabad High Court which applied the principles embodied in Section 53 to a
transfer by virtue of a decree on an award though the provisions of Section 53 of the Act did not in terms apply
thereto. 39
Hindu Law. —Prior to the

Amending Act , 20 of 1929, it was enacted that rules in the second chapter shall not affect any rule of
Hindu Law. Subsequent legislation such as the
Hindu Disposition of Property Act , XV of 1916, the MadrasAct I of 1914 and the Madras Act VIII of 1921
has rendered retention of the word "Hindu" in the section unnecessary, for the inconsistencies that subsisted have
now been removed by the above legislation and by Sections 11, 12 and 13 of the Transfer of Property
(Amendment) Supplementary Act, 21 of 1929, amending the aforesaid Acts.
Mahomedan Law. —The section declares that the provisions of the second chapter relating to transfers
of property whether moveable or immovable shall not be deemed to affect any rule of Mahomedan Law. 40 The
reason for this express enactment is to save the rules of Mahomedan Law in various branches of transfer which are
inconsistent with the law as laid down in the Act. Thus the creation of life-interests amongst Sunnis whether or not
followed by vested remainders are not recognized by Mahomedan Law. 41 The formalities necessary for a valid gift
in Mahomedan Law differ from those laid down in Chapter VIII of the Act and remain unaffected by them. Again, a
Mahomedan may make an oral gift of immovable property a privilege unknown to the law as laid down in the Act.
The rule of equity in Section 52 of the Act is not opposed to the principles of Mahomedan Law as to preclude its
application to Mahomedans. 42 The Courts in India permit Mahomedans through the instrumentality of a wakf to
trench on the law of perpetuity as laid down in
Section 14 of the Transfer of Property Act . The peculiar rules of the law of pre-emption are preserved to
them and the creation of joint tenancies unknown to English Law are favoured. But the Act does not state that
Chapter II shall not apply to Mahomedans. The word "affect" occurring in the first part of the section is repeated in
the concluding portion thereof and so where a question arose whether a partial restraint on alienation was valid, the
Privy Council applied the rule in
Section 10 of the Transfer of Property Act, 1882 , recognizing the validity of a partial restraint on
alienation in the absence of any authority suggesting that prior to the. Act different principle was applied by the
Page 8 of 15
S.2(A)
Courts in India.43
Where a Muslim had created Wakf-alal-aulad , the settlor had executed trust, had settled the properties for benefit
of the family, children or descendants from generation to generation and ultimately the property was to go to the
holy shrine for its maintenance, held that a valid trust was created and there was no violation of the rule of
perpetuity envisaged in Sections 13 o 14 of the
Transfer of Property Act . On the date of his death the settlor did not have any interest in the properties
nor had he reserved any interest to himself under these trust. On the day of the execution of the Wakf deed the
properties ceased to be the properties of the settlor, the properties could not be included in the settlor’s estate for
the purposes of payment of estate duty. 44
T.P. Act and Mohamedan Law of pre-emption.—The Mohamedan Law of preemption does not
override the provisions of the
T.P. Act .45 The transfer of property where the
T.P. Act applies, has to be under the provisions of
T.P. Act only and Mahomedan Law of transfer of property cannot override the statute law.46
Buddhist Law. —The rules relating to transfers, whether moveable or immovable property, in Chapter II
were declared prior to the
Amending Act , 20 of 1920, not to affect rules of Buddhist Law but the inconsistencies anterior to the
amendment having disappeared, no occasion remains for the retention of the word "or Buddhist" in the section.
Interpretation clause.
61 Radhakishan v. Shridhar, AIR 1960

SC 1368 (1371) :
(1961) 1 SCR 248 [
LNIND 1960 SC 405 ].
62 Radhakishan v. Shridhar, AIR 1960

SC 1368 (1372) :
(1961) 1 SCR 248 [
LNIND 1960 SC 405 ].
63 Namdeo v. Narmadabai , AIR

1953 SC 228 (232) :
(1953) SCR 1009 [
LNIND 1953 SC 25 ] ; Krishna Shetti v. Gilbert Pinto,
AIR 1919 Mad 12 : (1919) 42 Mad 654 : 50 IC 899 (FB).
Page 9 of 15
S.2(A)
64 Genamal v. Ramaswamy ,
AIR 1960 AP 465 [
LNIND 1959 AP 200 ] (467) (DB).
65 Ulfat Hoosain v. Gayani Dass ,

(1909) 36 Cal 802 (806); Promotho Nath v. Kali Prasanna ,
(1901) 28 Cal 744 (748).
66
(1889) 16 Cal 693 : 16 IA 65.
67
(1891) 19 Cal 760 .
68 (1871) 40 LJCP 95.
69 Fitzgerald v. Champneys, (1861) 30 LJCP 777, 70 ER 958; Gunepally v. Sri Rajah

Tyadappusapati ,
(1930) MWN 475 ; Phool Chand v. Ram Nath ,
(1928) 50 All 430 ; Kundamul v. Dyer ,
(1925) 52 Cal 551 .
70 Motibhai v. Desaibhai , (1917) 41 Bom 170.
71 Surendra Narain v. Bijoy Singh ,

(1925) 52 Cal 655 .
72 Gyannessa v. Mobarakanessa ,
(1898) 25 Cal 210 .
73 Rangu v. Lakshman ,
(1930) 32 Bom LR 948 ; Ram Kishen v. Sheo Sagar ,
AIR 1924 All 304 .
74 Maung Po Kin v. Maung Shwe Bye , AIR 1924 Rang 155.
75 Saraswatamma v. Paddayya , (1923) 46 Mad 349 ; Girja Bai v. Sadashi ,

(1916) 43 Cal 1031 , P.C.; Varada Pillai v. Jeevarathnammal , (1920) 43 Mad 244 :
46 IA 285.
76 Maung Tun Sein v. Ko Tu ,

AIR 1928 Rang. 196 ; Chhotalal v. Bai Mahakore , (1917) 41 Bom 466.
77 Hadayat Khan v. Shah Amand ,

AIR 1924 Lah 155 .
Page 10 of 15
S.2(A)
78
(1969) 71 Bom LR 165 :
1969 Mah LJ 379 :
ILR (1969) Bom 134 .
79 Ramjhari Kuer v. Gokhul Singh ,

AIR 1930 Pat 61 ; Sheopujan Rai v. Bishnath Rai ,
AIR 1930 All 706 ; Shiba Kali v. Chuni Lal ,
AIR 1927 Cal 748 ; Veerabhadrayya v. Zamindars of North Vallur , (1927) 50 Mad
201 ; Hindu Singh v. Mangal , (1923) 19 Nag LR 110; Lahani v. Bala , (1922) 18 Nag LR 85; Paras Ram v. Mewa
Kunwar , (1930) A.LJ 890; Bhai (Kirpa) Singh v. Rassalldar , (1928) 10 Lah 165 ; Javanmal v. Muktabhai , (1890) 14
Bom 516 ; Gopi Lal v. Abdul Hamid ,
AIR 1928 All 381 .
80 Maharaja of Jeypore v. Rukmini , (1919) 42 Mad 589, 46 IA 109; Kally Dass v.

Monmohines ,
(1897) 24 Cal 440 .
81 Nizamuddin v. Mamtozuddin ,
(1900) 28 Cal 135 .
82 Jankinath v. Nirodbaran,
(1930) 57 Cal 148 ; Shib Narain v. Lachmi Narain,
AIR 1929 Lah 761 ; Gokal Prasad v. Govindrao,
AIR 1929 Nag 282 ; Sri Raja Satrucherla v. Maharaja of Jaipur,
AIR 1928 Mad 1194 ; Nisar Husain v. Sundar Lal,
AIR 1927 All 657 ; Rajib Lochand v. Jogesh Chandra,
AIR 1924 Cal 983 ; Nataraja v. Rangaswamy, (1924) 47 Mad 384 ; Janak Dulari v.
Bishamber Nath,
AIR 1929 All 745 ; Bai Ganga v. Rajaram, (1911) 35 Bom 248 ; Official Assignee of
Madras v. Mary Dalgarins, (1903) 26 Mad 440.
83 Ram Singha v. Shankar Dayal,

(1928) 50 All 965 ; Sakeena Bibi v. C. Stephens,
AIR 1926 Rang. 205 ; Kirpa Singh v. Rasalldar,
AIR 1928 Lah 627 ; Shepujan Rai v. Bisnath Rai,
AIR 1930 All 706 ; Vasudeva Samiar, In re. (1929) 52 Mad 361 ; The Colonial
Sugar Refining Co., Ltd. v. Irving, (1905)_AC 360; Delhi Cloth and General Mills Co. Ltd. v. Income Tax Commissioner,
(1927) 9 Lah 284 ; Daivanayaka v. Rennukambal, (1927) 50 Mad 857 ; Bala Prasad v. Shyam Behari, (1928) 26 A.LJ
406; Zamin Ali Khan v. Genda,
(1904) 26 All 375 , overruled.
84 Fatma Bibi v. Ganesh , (1907) 31 Bom 630.
85 Narasangji v. Ranchhodbhai ,
(1911) 13 Bom LR 109 .
86 Gopi Lal v. Abdul Hamid ,

AIR 1928 All 381 .
87 Surendra v. Bijoy Siongh ,

(1925) 52 Cal 655 .
Page 11 of 15
S.2(A)
88 Umesh Chunder v. Chunchun Ojha ,

(1888) 15 Cal 357 ; Mohabir Pershad v. Gunghadar Pershad ,
(1887) 14 Cal 599 .
89 Baij Nath v. Moheswari ,

(1887) 14 Cal 451 .
90 Srinath Das v. Khetter Mohun Singh ,

(1889) 16 Cal 693 , 16 IA 65.
91 Megh Lal v. Rajkumar ,

(1907) 34 Cal 358 .
92 Samar Ali v. Karim-ul-Lah ,

(1886) 8 All 402 .
93 Ambabai v. Bhau , (1896) 20 Bom 759.
94 Nanu v. Raman , (1893) 16 Mad 335.
1 Naranappa v. Samacharlu , (1896) 19 Mad 382 ; Dinendra Nath v. Chandra Kishore ,

(1886) 12 Cal 436 .
2 Madhu Sudan v. Kamini Kanta ,

(1905) 32 Cal 1023 ; Hari Nath v. Raj Chandra ,
(1897) 2 CWN 122 ; Sarada Kanta v. Nabin Chandra ,
(1927) 54 Cal 333 ; Madhab Chandra Pal v. Bejoy Chand Mahtab ,
(1900) 4 CWN 574 ; Ramcharan v. Hari Charan, (1908) 7 CLJ 107 ; Sulin Mohan v.
Raj Krishna ,
(1920) 25 CWN 420 ; Ananda Mohan Saha v. Gobinda Chandra Ray ,
(1915) 20 CWN 322 .
3 Chota Nagpur Banking Association Ltd. v. Kumar Kamakhya , (1928) 7 Pat 341 ; Hira
Moti v. Annoda Prasad, (1908) 7 CLJ 553.
4 Karsandas v. Karsanji , AIR 1953 Sau 113 (118); Manoharlal v. Ramnarayan , AIR 1953
NUC (MB) 3694.
5 Kailash Chandra v. Hari Mohan ,

(1909) 13 CWN 541 .
6 Hirendra Nath v. Hari Mohan ,

(1914) 18 CWN 860 .
Page 12 of 15
S.2(A)
7 Ram Beisen Dutt v. Haripada Mukerji ,

(1919) 23 CWN 830 .
8 Maharaja of Jeypore v. Rukmini , (1919) 42 Mad 589.
9 Bikkina Ramayya v. Adabala

Seshayya,
(1916) 30 MLJ 338 [
LNIND 1916 MAD 70 ] ; Pergash Koer v. Mahabir Pershad ,
(1885) 11 Cal 582 ; Bhobo Sundari v. Rakhal Chunder ,
(1886) 12 Cal 583 ; Kaveri v. Ananthayya , (1886) 10 Mad 129 ; Mata Din v. Karim
Hussain ,
(1891) 13 All 432 ; Umda v. Umrao Begum ,
(1889) 11 All 367 ; Ganga Sahai v. Kishen Sahai ,
(1884) 6 All 262 ; Ammanna v. Gurumurthi , (1892) 16 Mad 64.
10 Durgi Nikarini v. Gobordhan Bose ,

(1914) 19 CWN 525 .
11 Kaveri v. Ananthayya , (1887) 10 Mad 129.
12 Makund Ram v. Ram Sarup , (1884) AWN 274.
13 Madhab Chandra Pal v. Bejoy Chand Mahtab ,

(1900) 4 CWN 574 .
14 Manohar Lal v. Ramnarayan , AIR 1955 NUC (MB) (3694).
15 Lala Jugdeo v. Brij Behari Lal ,

(1886) 12 Cal 505 ; Rattnasami v. Subramaya , (1888) 11 Mad 56.
16 Narayani Pillai v. Narayanani Prabhakaran , AIR 1955 Trav-Co. 130 (131) (DB).
17 Ramjibhai Virpal v. Gordhandas Maganlal ,

AIR 1954 Bom 370 [
LNIND 1954 BOM 2 ] (378) (DB) : 56 Bom LR 365 : (1954) Bom 615.
18 Dinendronath v. Ramkumar ,
(1881) 7 Cal 107 , 8 IA 65.
19 Narasappah v. Hussain , (1934) 67 M.LJ 746; Basava v. Anjaneyulu , (1927) 50 Mad

135.
20 Motilal v. Poona Cotton and Silk Mfg. Co .,

(1917) 19 Bom LR 602 [
LNIND 1917 BOM 22 ].
Page 13 of 15
S.2(A)
21 Natesa v. Gopalaswami , (1928) 51 Mad 688.
22 Mahendra v. Suraj Prasad ,

AIR 1958 Pat 568 (570); Madhu Intra Ltd. v. Registrar of Companies, West Bengal ,
2004 (3) Cal HN 607 :
2004 (1) Cal LJ 267 [
LNIND 2004 CAL 49 ] (DB) (Cal).
23 Mahendra v. Suraj Prasad ,

AIR 1958 Pat 568 (570).
24 Suburban Ply & Panels (P) Ltd. v. Regional Provident Fund Commissioner , (2004) 97
Cut LT 346 (353) (DB) (Ori).
25 Prem Nath v. Mt. Sundarawati ,

AIR 1960 Punj 630 (DB) : (1959) Punj 753.
26 Krishna Mohan v. Bal Krishna Chaturvedi (D) by LRs ,

AIR 2001 All 334 [
LNIND 2001 ALL 624 ] (340).
27 Nachhittar Singh v. Jagir Singh , AIR 1986 P&H 197 (200, 201).
28 Mathewson v. Shyam Sunder ,

(1906) 33 Cal 786 ; Satyendra v. Nilkantha ,
(1894) 21 Cal 383 .
29 Nannu Lal v. Ram Chandra ,

(1931) 53 All 334 .
30 Krishnan v. Perachan , (1892) 15 Mad 382.
31 National Insurance Co. Ltd. v. Haridas ,

AIR 1927 Cal 691 .
32 Ram Saran v. Yudhishtir ,

(1931) 53 All 786 .
79 Jagdeo Singh v. Ram Saran , (1927) 6 Pat 245 ; Nitya Gopal v. Nani Lal ,
(1920) 47 Cal 990 ; Narasingha v. Prolhadman ,
(1919) 46 Cal 455 ; Jati Kuar v. Mukunda Deb ,
(1912) 39 Cal 227 ; Eshan Chunder v. Monmohini ,
(1879) 4 Cal 683 .
33 Promotho Nath v. Kali Prasanna ,

(1901) 28 Cal 744 .
Page 14 of 15
S.2(A)
34 Laxmi Devi v. Mukand Kanwar , AIR

1965 SC 834 (838) :
(1965) 1 SCR 726 [
LNIND 1964 SC 366 ].(Approving
AIR 1943 All 145 (FB), overruling
AIR 1940 Mad 701 [
LNIND 1939 MAD 360 ]&
AIR 1937 Cal 129 ).
35 In Re The Official Liquidator, High Court, Madras,

(2010) 3 MLJ 369 [
LNIND 2009 MAD 5132 ] (378) (Mad).
36 Lalji Agarwal v. Stateof U.P., 2012 (117) RD 823 (827) (All).
37 Lalji Agarwal v. State of U.P.,

2013 (96) All LR 339 [
LNIND 2012 ALL 1271 ] (343) (All).
38 Chattur Mal v. Majidan ,

AIR 1934 Lahore 460 .
39 Akram-un-niss v. Mustafa-un-missa ,
(1929) 51 All 595 .
40 Trustees of Sahebazadi Oalia Kulsum Trust v. C.E.D , AIR

1998 SC 2986 :
(1998) 6 SCC 267 [
LNIND 1998 SC 690 ] (274).
41 See Saroobai v. Hussein Somji , (1937) Bom 18.
42 Durgosi Rao v. Fakeer Sahib , (1907) 30 Mad 197 ; Babu Lal v. Ghansham Das ,
(1922) 44 All 633 ; State of A.P. v. Babbiti Subba Reddy ,
AIR 2007 NOC 1174 (AP); K. Mohamed Muthu v. Ms. Habeeba Beebi , 2004 (3)
Mad LJ 84 (87) (DB) (Mad); Qamarunnisa Begum v. Fathima Begum ,
AIR 1968 Mad 367 [
LNIND 1966 MAD 31 ] (DB) :
ILR (1968) 1 Mad 64 ; State of A.P. v. Babbiti Subba Reddy ,
AIR 2007 NOC 1174 (AP).
43 Muhammed Raza v. Abbas Bandi Bibi,

(1932) 59 IA 236 .
44 Trustees of Sahebzadi alia Kulsum Trust v. Controller of Estate Duty, AIR 1998
SC 2986 (2990) :
(1998) 6 SCC 267 [
LNIND 1998 SC 690 ].
Page 15 of 15
S.2(A)
45 Radhakishan v. Shridhar , AIR 1960

SC 1368 (1371) :
(1961) 1 SCR 248 [
LNIND 1960 SC 405 ].
46 Radhakishan v. Shridhar , AIR 1960

SC 1368 (1371) :
(1961) 1 SCR 248 [
LNIND 1960 SC 405 ].
End of Document
Darashaw Vakil
S. 3.
In this Act, unless there is something repugnant in the subject or context,—
"Immovable property"
"immovable property" does not include standing timber, growing crops or grass;
"Instrument"
"instrument" means a non-testamentary instrument;
47 ["attested", in relation to an instrument, means

and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the
executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the
presence and by the direction of the executant, or has received from the executant a personal acknowledgment of
his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the
presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been
present at the same time, and no particular form of attestation shall be necessary;]
"registered" means registered in 48
[ 49 [any part of the territories] to which this Act

extends] under the law 50 for the time being in force
regulating the registration of documents; "attached to the earth" means —
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that
to which it is attached;
51 ["actionable claim" means a claim to any debt,

other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property,
or to any beneficial interest in movable property not in the possession, either actual or constructive, of the
claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest
be existent, accruing, conditional or contingent;]
52 [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.
Page 2 of 3
Explanation I . — Where any transaction relating to

immovable property is required by law to be and has been effected by a registered instrument, any person
acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of
such instrument as from the date of registration or, where the property is not all situated in one subdistrict, or
where the registered instrument has been registered under subsection (2) of Section 30 of the Indian
Registration Act, 1908 (16 of 1908), from the earliest date on which any
memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part
of the property which is being acquired, or of the property wherein a share or interest is being acquired, is
situated:]
Provided that —
(1) the instrument has been registered and its registration completed in the manner
prescribed by the Indian
Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument or memorandum has been duly entered or filed, as the case may
be, in books kept under Section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have
been correctly entered in the indexes kept under Section 55 of that Act.
Explanation II. — Any person acquiring any immovable property or any share or
interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time
being in actual possession thereof.
Explanation III. — A person shall be deemed to have had notice of any fact if his
agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the

fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud.
47 Ins. by Act 27 of 1926, Section 2 as amended by Act 10 of 1927, Section 2 and Sch. I.
48 Subs. by Act 3 of 1951, Section 3 and Sch., for "a Part A State or a Part C State" (w.e.f. 1-4-
1951).
49 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "any State".
50 See the Indian

Registration Act, 1908 (16 of 1908).
51 Ins. by Act 2 of 1900, Section 2.
52 Subs. by Act 20 of 1929, Section 4 as amended by Act 5 of 1930, Section 2 for the original
paragraph.
Page 3 of 3
End of Document
S.3(A)
Darashaw Vakil
COMMENTS
Amendments. — Section 3 repeated the general principles of law enacted in 229 of the
Indian Contract Act, 1872 . But this definition was found to be defective as the words "given to or
obtained by his agent" suggested that the rule was restricted to the facts of which the agent had express notice53
and the reference to the section of the
Indian Contract Act, 1872 did not extend the scope of the definition in
Section 3 of the Transfer of Property Act . This paragraph with the explanations was substituted for the
original paragraph by Section 4 of the Transfer of Property (Amendment) Act, 1929 (20 of 1929). By the
amendment the following words which followed the paragraph as it stands now were deleted, namely, "when
information of the fact is given to or obtained by his agent under the circumstances mentioned in the Section 229 ."
These words have been omitted and the explanations have been added as to when a person is deemed to have
notice of a fact by reason of registration or possession or the employment of an agent.
The Select Committee observed :—
" Clause 4, Section 3. —‘Notice’ as defined in Section 3,includes both actual and constructive notice. There is a
conflict of decisions whether the registration of a document under the Indian
Registration Act is of itself constructive notice of the transaction effected by the document. The High
Courts of Bombay and Allahabad hold that it is (ILR 6 Bom1689 Bom 427, 26 Bom 538 : 16 All 478). The Madras
High Court holds that registration does not amount to notice in any case. In ILR 15 Mad 268, it was observed that if
the Legislature desired to regard registration as notice, it would have said so in express words. In some cases the
Calcutta High Court took the same view as the Madras High Court." 54
In 2 CWN 250, Sir LAWRENCE JENKINS observed : —
"Apart from authority, I should have thought, having regard to the statutes applicable in this country, that the
proposition involved is not one of law but of fact, that as each case arises it should be determined whether in that
individual case the omission to search a register, taken together with other facts amounts to such gross negligence
as to attract the consequence which results from notice; and it may well be that this test will serve to reconcile the
apparent conflict of view that at first sight the cases suggest."
Following that decision 7 CWN 11, the same High Court held as follows : "Whether registration is or is not notice in
itself depends, we think, upon the facts and circumstances of each case, upon the degree of care and caution
which an ordinary prudent man would necessarily take for the protection of his own interest by search into the
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registers kept under the

Registration Act ."
The question was considered by the Judicial Committee in Tilakdhari Lal v. Kheldan Lal . 55 After reviewing all the
Indian decisions, their Lordships of the Privy Council approved of the view taken in the Calcutta cases in 2 CWN
750 and 7 CWN 11, and observed:—
"Their Lordships are impressed with the view that, since registration has for nearly two centuries been held not to operate
as constructive notice in this country, and the knowledge of this law, which was then old, must have been present to the
Indian Legislature when they framed the different Indian Registration Acts, and the definition of notice in the
Transfer of Property Act , yet none the less they have omitted to state the principle for which according to the
appellants’ contention, it is essential that the register should provide. .... For these reasons, there Lordships think that
notice cannot in all cases be imputed from the mere fact that a document is to be found upon the Indian register of deeds."
The test laid down in 2 CWN 750 and approved by the Privy Council would, as stated by SIR RASH BEHARY
GHOSE, inevitably lead to much prejury and litigation. 56 At page 252 of the report in Tilakdhari’s case, the Judicial
Committee also observe that the real purpose of registration is to secure that every person dealing with property,
where such dealings require registration may rely with confidence upon the statements contained in the register as
a full and complete account of all transactions by which his title may be affected, unless indeed he has actual notice
of some unregistered transaction which may be valid apart from registration.
In America, registration of a conveyance has been deemed to operate as constructive notice to all subsequent
purchasers of any estate legal or equitable in the same property. The reason assigned for the application of this
doctrine is as follows :
"The reasoning upon which this doctrine is founded is the obvious policy of the Registry Act, the duty of the party
purchasing under such circumstances to search for prior encumbrances, the means of which search are within his power,
and the danger of letting in parol proof of notice or want of notice of the actual existence of the conveyance. This doctrine
certainly has the advantage of certainty and universality of application; and it imposes upon the subsequent purchasers a
reasonable degree of diligence only in examining their titles to estates." 57
In England also in the counties of Middlex and Yorkshire, where the system of local deed registries prevails, Section
197 of the Law of Property Act, 1925, provides that registration in a local deed registry of a memorial of any
instrument transferring or creating a legal estate or charge shall be deemed to constitute actual notice of the
transfer or the creation of the legal estate or charge to all persons and for all purposes whatsoever as from the date
of registration and so long as the registration continues in force. So also under Section 198 in the case of
instruments, which are registered under the Land Charges Act, 1925, it has been provided that registration shall be
deemed to constitute actual notice of such instrument to all persons and for all purposes connected with the land
affected.
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In our opinion, in a country like India, where the system of registration has been generally applied, if registration
were to be held as not implying notice, one of the objects for which instruments are required to be registered would
be defeated. Moreover, as will be seen below, one of the important changes suggested by us is "compulsory
registration." It is, therefore, necessary that express provisions should be made in the Act making it clear that
registration of an instrument relating to immovable property amounts to notice of the instrument from the date of the
registration. For this purpose we propose to add Explanation 1 to the definition of ‘Notice’ in Section 3.
It is not clear how far possession is to be regarded as notice. In some cases it has been held that possession
amounts to such notice of title as the person in possession may have. 58 In other cases, Courts have felt difficulty in
expressing any opinion on the point. 59 Possession, which operates as notice, however, must be an actual
possession. It does not seem reasonable that a person entering into a transaction regarding immovable property
should be in a position to ignore the question of possession or should neglect to inquire into the nature of the
possession or the title of the person who is in actual possession of such property, if he is not the person with whom
he is dealing. We propose to add Explanation II to the definition of ‘notice’ providing that the person dealing with
any immovable property shall be deemed to have notice of the title of any person who for the time being, is in actual
possession thereof. It may be noted that notice in the case is not extended to possession, which is merely of a
constructive nature. The Explanation is in accordance with Illustration 3 to
Section 27(b) of the Specific Relief Act .
The last portion of the existing definition of notice, which relates to notice through an agent seems to us to be
defective. It provides that a person has notice of the fact when information of the fact is given to or obtained by his
agent under the circumstances mentioned in
Section 229 of the Indian Contract Act, 1872 . The words "given to or obtained by his agent" used in the
definition suggest that the rule is restricted to the facts of which the agent has actual knowledge, or, in other words,
express notice.60 The reference to
Section 229 of the Indian Contract Act, 1872 does not extend to the scope of the definition. That Section
merely provides that in order that notice to an agent should be notice to a principal, it must be given to, or the
information must be obtained by the agent in the course of business transacted by him for the principal. According
to a wellestablished principle the general rule is that an agent stands in the place of the principal for the purpose of
the business in hand, his acts and knowledge being considered as the acts and knowledge of the principal. As
observed by the Judicial Committee in Rampal Singh v. Balbaddar Singh , 61 "it is not a mere question of
constructive notice or inference of fact, but a rule of law which imputes the knowledge of the agent to the principal,
or (in other words) the agency extends to receiving on behalf of his principal, of whatever is material to be stated in
the course of the proceedings." In Mohori Bibee v. Dhurmodas Ghose , 62 their Lordships of the Privy Council held
that, although the principal was absent from Calcutta and personally did not taken part in the transaction, his agent
in Calcutta stood in his place for the purposes of the transaction and the acts and knowledge of the latter were the
acts and knowledge of the principal. If notice to the agent, whether actual or constructive, is not made notice to the
principal, it has been said that "notice would be avoided in every case by employing agents." 63
The general rule that the knowledge of the agent is the knowledge of the principal has no doubt certain limitations. It
is necessary that the matter for which the agent was employed should be taken into consideration. It is necessary
that the agent should be acting in the course of the particular business for which he was employed. 64 This general
principle is now embodied in Section 199 of the English Property Act, 1925. We propose, therefore, to add
Explanation III to the definition" . See Notes on Clauses. 65
SECOND REPORT ON THE TRANSFER OF PROPERTY (AMENDMENT) BILL, 1929.
" Clause 4. —In regard to Explanation I which it is proposed to add to the definition of ‘notice’ in
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Section 3 of the Transfer of Property Act, 1882 (in this Report referred to as the principal Act), it has been
pointed out that the provision that the registration of a document amounts to notice from the date on which it is registered,
will cause difficulties in a case in which the document has not been registered at the place where the property is situate.
This objection has some force. We have, therefore, added at the end of Explanation I the following words : ‘or if the
instrument has been registered under sub -section (2) o 30 of the Indian
Registration Act, 1908 , from the earliest date on which a memorandum thereof has been filed by any Sub-
Registrar under Section 66 of that Act.’
Explanation III which provides that notice to an agent whilst acting in the course of business is notice to his principal has
been properly criticised as being too general and vague. We have added provisions to the effect that the notice must be of
a fact which is material to the course of the business in which the agent is engaged, and that the agent must not
fraudulently have concealed the fact from his principal." . See Notes on Clauses.
Interpretation clause. —See the same caption in the commentaries to the preamble.
"Immovable property". —Immovable property is not defined in the Act which enumerates certain items
by way of exclusion. This enumeration is neither comprehensive nor exhaustive as is indicated by the word
"include". 66 The exclusion is intended to avoid conflict with the law of attachment. Under
Section 2(9)of the Registration Act, 1908 these items are moveables. It has also received interpretation
in the Indian Trustees Act67 and the Trustees and Mortgagees Powers Act68 and defined in the
Registration Act 69 and the
General Clauses Act .70 By virtue of
Section 4 of the General Clauses Act, 1897 the definition of immovable property in Section 3(26)
General Clauses Act, 1897 , will apply to the
T.P. Act , unless there is anything repugnant in the subject of context.71 The term has come up for judicial
determination under various enactments. Apart from the
Registration Act, 1908 the Courts have held that a right of ferry is72 but a right of way is not 73 immovable
property for the purpose of
Section 9 of the Specific Relief Act , 1877. Nor is ahat the possession of which is held by collecting tolls
or rents. 74 For the purpose of the
Registration Act, 1908 a right to collect market dues is a benefit to arise out of land.75 Again, a lease of a
hat or the right to collect market dues 76 and a hat can be the subject of a valid mortgage. 77 The right to collect
market dues in respect of a market held on that piece of land is also an immovable property which can be subject to
transfer by lease or otherwise. 78 But a pala or term of worship is not immovable property 79 nor is a karch-i-pandan
a personal allowance by a Mahomedan husband to his wife even though secured by a charge on immovable
property. 80
The "coal land" possesses all the essential attributes of "immovable property". 81 Golf course is an immovable
property. 82
Where an article is an immovable property, it cannot be termed as "excisable goods". 83 In an immovable property
there is neither mobility nor marketability as understood in the excise law. 84 Everything embedded in the earth is
not immovable property. 85 Just because a plant and machinery are fixed in the earth for better functioning, it does
not automatically become an immovable property. 86 Paper making machine was held not immovable property. 87
The meaning of the word "immovable" means permanent, fixed, not liable to be removed. For a chattel to become
immovable property, it must be attached to the immovable property permanently as a building or as a tree attached
to earth. Though a movable property is attached to earth permanently for the beneficial use and enjoyment, is still a
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movable property. For an illustration, though a sugar cane machine/or an oil engine is attached to earth, it is
movable property. 88
Centerless Bar Turning Machine measuring 80’ in length and 10’ in width and 5’ in height embedded to the earth by
mounting the same on cement base and fastened to it with bolts and nuts cannot be called as immovable property.
89
Structure, which is permanently fixed to the land, is immovable property. 90 Structure so long as it is there, over the
land would remain immovable property. 91 A super structure on land, being a thing attached to earth, would be
immovable property both under
T.P. Act and
General Clauses Act, 1897 . In case of severance, this proposition would not apply and therefore the
super structure would become movable property on severance.92
The right to parsipan in Nimar is similar to pala and is not immovable property. 93 A right to rents and income
bequeathed by will to the widow during the term of her natural life subject to the maintenance and education of the
children is immovable property. 1 Within the meaning of the
Limitation Act a claim to possession and management of jaghir villages known as Saranjams is an
interest in immovable property2 but the right of a purchaser to have lands registered in his name in the revenue
records is not an interest in immovable property. 3 A right to officiate as priest at funeral ceremonies of Hindus is in
the nature of immovable property. The right ranks amongst immovable property in Hindu Law. 4 The texts on the
subject are collected in two Bombay cases. 5 After referring to the rule of construction in these two cases, the Privy
Council observed : "To the application of this rule within proper limits, their Lordships see no objection. The
question must in every case, be whether the subject of the suit is in the nature of immovable property or of an
interest in immovable property; and if its nature and quality can be only determined by Hindu Law and usage, the
Hindu Law may properly be invoked for that purpose". 6 The "nature and quality" of the property in such a case can
only be determined by Hindu Law, because it is not recognized as property in any other system of law.
A Yajman Vritti , an obligation imposed upon the purohit or family priest to perform certain religious rites carrying
with it certain emoluments is not immovable property. 7 A jalkar or right of fishery is immovable property within the
General Clauses Act, 1897 .8 A suit for rent of a fishery is immovable property within
Section 18 of the Code of Civil Procedure, 1908 .9 When a grant is merely of a fishery, the lessee
acquires no interest in the sub-soil and is not entitled to retain possession when the water dries up. 10 A lease
granted for fishing creates an interest in immovable property but not for Singhara cultivation. 11 Right to catch and
take away fish from lake/pond is an immovable property. 12 A right to extra-territorial fishery is not immovable
property for all purposes; but it is an interest in immovable property. 13 A right to collect rents of shops or houses
from persons actually occupying them is immovable property. 14 Future rent is immovable property as it is benefit
arising out of land. 15 Nibandha such as a right to assessment 16 or a right to levy toll on exports of paddy
from foreign territory is immovable property. 17 So also a grant by a Hindu sovereign to a Hindu temple. 18 Right to
rear lac is an interest in immovable property. 19 Right to rear and pluck fruits of the trees for a certain period does
not create interest in land. 20 Where the right to take yield from mango trees is granted and possession is also
delivered and a document sammathapathram is executed, such a document requires registration as such trees are
neither just timber nor growing crops, and such a transaction amounts to transfer of immovable property. 21 An
interest of lessee of immovable property has been held as immovable property. 22
In a partition suit, before the final decree is passed in the suit, assignment of his share by one co-sharer would be
invalid. 23
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Both before and after the Act was passed it was held that malikana which is an annual recurring charge on
immovable property, constitutes an interest in land, 24 so also varhasans or annual allowance charged on the
revenue of villages in the Nizam’s territory. 25 A mortgage of immovable property is itself immovable property
whatever may be the form of the mortgage. 26 The interest of a mortgagee is immovable property 27 but it is not
according to the Madras High Court. 28 The Bombay and Allahabad High Courts have taken the same view as the
Calcutta High Court. 29 A second mortgage like the first is also immovable property. 30 A mortgage debt is
immovable property. 31 The right of a mortgagor, known as the equity of redemption, is also immovable property 32
though not for the purpose of determining the procedure appropriate to attachment. 33 And so is air space above
land. 34
An agreement to grow trees on land belonging to one of the parties and to divide the fruits of the trees creates an
interest in land, requires registration and failure to do so would render the deed inadmissible in evidence. 35
Profit a prendre. —In order to be a profit a prendre two things are necessary. Firstly, the person
claiming must have interest in the land and secondly, it must be in respect of a produce or profit of the soil. 36 Where
by a deed the company was given right to take water from the river but not any interest in the land, the water not
being the product of the soil, the right given to the company was held not a "profit a prendre". 37
Right to catch fish and carry away fish — If registration necessary. —The right to catch and carry
away the fish being a ‘profit a prendre’ i.e . a profit or benefit arising out of the land, it has to be regarded as
immovable property within the meaning of the
T.P. Act read in the light of Section 3 o (26)of the
General Clauses Act, 1897 . If a ‘profit a prendre’ is tangible immovable property, its sale has to be by
means of a registered instrument in case its value exceeds Rs 100/- because of
Section 54 of the T.P. Act . If it is intangible, its sale is required to be effected by a registered instrument
whatever its value. There, in either of the situations, the grant of the "profit of prendre’ has to be by means of
registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected
by means of a registered instrument would pass no title or interest.38
Where there is a tidal navigable river, then a mere right to fish in it is an incorporeal right unconnected with the soil.
It is not ‘land’ as defined in the
Land Acquisition Act . It may however be considered as a profit a prendre, a benefit arising out of land.39
Standing timber. —According to the interpretation clause this item is excluded from the category of
immovable property. Here we have a negative definition but it is apparent that standing timber was intended to be
ejusdem generis with "growing crops" or "grass" and the latter articles not only do not connote the idea of
permanence but their use and enjoyment can be secured by the use of the sickle. The subject whether a tree is
moveable or standing timber or an interest in immovable property is one about which there has been considerable
difference of opinion in this country and the decisions somewhat conflicting. The trend of authorities is to divide
trees into two groups, one in which the timber is to be used for building purposes and the other where the purpose
is to enjoy the fruits from it. The latter is regarded as immovable property while the former as moveable. The
conflict, however, arises when the same kind of tree is regarded by one Court as moveable and by another as
immovable property. For general law reference may be made to Marshall v. Green , 40 a case under the statute of
frauds which does not apply to this country in which is to be found the following statement of law:
"The principle of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the
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purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from the nutriment to
be afforded by the land, the contract is to be considered as for an interest in land: but where the process of vegetation is
over or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a
mere warehouse of the thing sold and the contract is for goods."
The aforesaid principle has the high authority of SIR EDWARD VAUGHAN WILLIAMS and has a classic flavour
about it. This principle would be applicable to India though the statute is not. The test is to look to what the parties
intended to contract for. If the intention is to enjoy the fruit only it is immovable. 41 A mortgage of fruit-bearing trees
has been held to be of immovable property. 42 So also a lease which gave a right to the enjoyment of forest
produce, grass, etc. 43 but a theka of a certain portion of a forest "for all kinds of trees" is not of an interest in
immovable property. 44 Where the intention is to cut and remove, the tree is moveable, and so a contract for cutting
all kinds of trees to be converted into charcoal upon the ground, was held to be standing timber within the meaning
of this definition. 45 Where during the currency of the contract to take toddy and fruit during a specified period the
trees were to remain available for the use specified in it and there was no limitation on the transferor’s enjoyment of
the land as such, it was held that the contract did not affect the nutriment the land afforded to the trees, their juice or
fruit and that no interest in immovable property was transferred. 46 As regards trees which produce fruit or other
forest produce they have been regarded as immovable, such as a mahua grove, 47 a mango tree. 48 A fruit tree may
not always come within the term "standing timber" unless by custom of the locality its wood is used in building
houses. 49
Whether a tree is a timber tree or not, would depend upon its nature and use to which it is generally put and not
upon whether there is a present intention in the mind of its owner of cutting it sooner or later. 50 Where the intention
of the parties was that the trees should be cut immediately which was evident from the fact that as many as more
than 900 trees were cut within a short period, it was held that the agreement to sale related to "standing timber"
which is not immovable property and did not require registration. 51 If under the contract of sale title to the goods
has not passed, than there is an agreement to sale and not a complete sale. 52
"Immovable property" does not include standing timber, growing crops or grass. 53 In the larger definition of
"immovable property" anything attached to the earth would normally be treated as immovable property and a tree
which is attached to the earth and seeks its nourishment and sustenance from the soil in which it stands shall be
deemed to be attached to the earth with the only distinction that if it was a tree of a kind which is usually used as a
timber and was of sufficient size so as it could be used as such and is intended to be severed from the soil
reasonably thereafter, it may be treated to be immovable property. 54 Where the defendants had purchased trees
and bamboo clumps in an auction sale and never showed intention to cut them for a period of ten years, the trees
and bamboo clumps were held to be immovable property. 55 Before a tree can be regarded as "standing timber", it
must be in such a state that, if cut, it could be used as timber and when in that state it must be cut reasonably early.
56
The benefit of the standing trees, which draw their nourishment from, the soil underneath goes to the grantee. Such
a right is profit a pendre benefit arising from the land and therefore, an immovable property. Standing timber,
growing crops or grass are specifically excluded by
Section 3 of the Transfer of Property Act . Trees not being so excluded come within the category of
immovable property. In a case where such standing trees of the value of Rs. 100 or upwards to be cut and removed
in future are transferred, it must be done by means of a registered deed as laid down in
Section 54 of the Transfer of Property Act .57
"Trees" are regarded as immovable property because they are attached to or rooted in the earth. Section 2 o (6)of
the
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Registration Act, 1908 expressly says so and, though the Transfer of PropertyAct does not define
immovable property beyond saying that it does not include "standing timber, growing crops or grass", trees attached
to earth (except standing timber) are immovable property, even under the
Transfer of Property Act , because of Section 3 o (26)of the
General Clauses Act, 1897 . The trees (except standing timber) are immovable property.58
The Bombay and Allahabad High Courts, as seen, have held that a mango tree is immovable property, a view
doubted by the Patna High Court 59 and accepted with limitation by the Madras High Court. The Bombay High Court
has qualified the term "timber" as meaning property in such trees only as are fit to be used in building and repairing
houses. The Madras High Court while holding that karuvela and velvela trees were timber within the meaning of the
section, took exception to the limitation by saying that the term timber cannot be limited to the class of trees the
timber of which is used for building purposes and that whatever may be the purpose to which a mango tree is put in
the Bombay Presidency, in Southern India mango-planks were used for doors, windows and other articles of
wooden furniture. 60 When there is no actual removal of the thing sold the governing principle would be whether
there is actual possession of the thing sold and something actually done to the thing sold by the buyer which could
only be properly done by an absolute owner. Under the
Indian Forest Act (XVI of 1927), Sec tion 2, clause 4(a), forest produce includes "timber, charcoal,
caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds and myrabolams."
Bamboos and Timber. —Bamboos and timber are movable properties. 61
Crops. —These are moveable property according to the interpretation clause. The word is used in
Section 51 and crops to grow in future are immovable property. 62 A mortgage of indigo crops that may be grown
was held to be a transaction not governed by the Act. 63 By
Section 2(7)of the Sale of Goods Act (III of 1930), "goods" include,inter alia , growing crops, grass and
things attached to or forming part of the land which are agreed to be severed before sale or under the contract of
sale, and "future goods" means goods to be manufactured or produced or acquired by the seller after the making of
the contract for sale. The contract for the sale of goods will be found in Sections 6, 7 and 8 of the same Act.
Growing crops are not immovable property. A mortgage of such crops amounts to an agreement to hypothecate
future crops. When the crops grow the hypothecation attaches to the crops, creating an equitable interest in the
lender. 64 Under the Section 2(13), "moveable property" includes growing crops. The Calcutta High Court in dealing
with a suit for damages for wrongful seizure of standing crops under distress, held that they were immovable
property 65 and so are they also under
Section 3(25)of the General Clauses Act, 1897 , which is a wider definition. Bamboo clumps as standing
crops were held immovable66 though a crop of sugarcane was held moveable. 67 The bamboo contract is a grant of
profits a prendre, which in Indian law is a benefit to arise out of land, and thus creates an interest in immovable
property. 68 A mortgage of property which is to come into existence in the future is a valid transaction enforceable by
Courts of Equity. 69 Under the
Indian Forest Act (XVI of 1927), Sec tion 2, clause 6, "timber" includes trees when they have fallen or
have been felled, and all wood whether cut up or fashioned or hollowed out for any purpose or not, and under
clause 7 "tree" includes bamboos, stumps, brushwood and canes.
Pan creepers which have no existence apart from their produce as they are uprooted when the pan has
been gathered are moveables. 70 A transfer of possession of parsa or palas tree with a right to take the crops of lac
each year is a transaction relating to immovable property. 71
Yield from jack trees and mango trees do not constitute "growing crops". 72
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Grass. —Standing timber does not include growing crops or grass. 73 The Madras High Court, in Seeni
Chettiar v. Santhanathan , 74 observed it has long been settled that an agreement for the sale and purchase of
growing grass, growing timber or underwood, or growing fruit, not made with a view to their immediate severance
and removal from the soil and delivery as chattels to the purchaser, is a contract for the sale of an interest in land. It
is included in the term "goods" under the
Sale of Goods Act (III of 1930).
Trees. —Under Section 3 (a), all things attached with the earth are included in the land. Thus standing
trees being embodied in the earth are part of the land. In view of Section 8 of the Act, when a vendor sells a
property, he sells all his rights embedded in the property unless it is specifically or impliedly excluded. 75 There is no
definition of immovable property in
T.P. Act , in the absence the general definition of immovable property contained in
General Clauses Act, 1897 would prevail, trees are part of the land, on transfer of the land, the
ownership of the trees also vest in the transferee in the absence of any stipulation to the contrary. The trees are not
sold separately.76
Right to hold Bazar. —The right to hold bazar is an interest in land is immovable property, as it is
integral to immovable property. 77
Transfer of trees — Land if also transferred? —There may be presumption that when land is
transferred, all the things attached to the earth, such as trees and shrubs, are also transferred along with the land in
view of the provisions of
Section 3 of the T.P. Act . But there can be no presumption in a case vice versa . The transfer of the
trees will not by itself justify the inference that the land was also transferred. 78
Jamun tree immovable property. —Jamun tree is immovable property. 79
Right to take out by digging manure etc . — Immovable property. —A right to

take out by digging manure and rubbish accumulated in specific trenches and drains and carrying away the same
and sell it amounts to a benefit arising out of land and as such it is immovable property within the meaning of
Machinery. —A machinery or other part of machinery cannot be termed as immovable property, if sold
separately. 81
Machinery affixed on land/building — Immovable property. —The question whether any machinery
such as an oil engine imbedded in earth or permanently fastened to anything attached to the earth is movable or
immovable property, is a mixed question of fact and law depending upon the facts and circumstances of each case.
82 The tests to determine the character and nature of the property are:
(i) What is the intendment, object and purpose of installing the machinery— Whether it is the beneficial
enjoyment of the building, land or structure, or the enjoyment of the very machinery?
(ii) The degree and manner of attachment or annexation of the machinery to the earth. 83
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The question whether machinery, which is embedded in earth, is movable or an immovable property, depends upon
the facts and circumstances of each case. Primarily, the Court will have to take into consideration the intention of
the parties when it decided to embed the machinery, whether such embedment was intended to be temporary or
permanent. 84 Machinery embedded in earth was held immovable property. 85 Fertilizer plant embedded
permanently is immovable property. 86 Plants and machinery permanently fastened to the earth were held
immovable property. 87
An anaerobic digestion plant embedded to the earth and being used for beneficial enjoyment of the land, is an
immovable property. 88
For a chattel to become part of immovable property and to be regarded as such property, it must become attached
to the immovable property as permanently as a building or a tree is attached to the earth. If, in the nature of things,
the property is a movable property and for its beneficial use or enjoyment, it is necessary to imbed it or fix it on
earth, though permanently, that is, when it is in use, it should not be regarded as immovable property for that
reason. 89 The attachment of the oil engine to earth, though it is undoubtedly a fixture, is for the beneficial
enjoyment of the engine itself and in order to use the engine, it has to be attached to the earth and the attachment
lasts only so long as the engine is used. When it is not used, it can be detached and shifted to some other place.
The attachment, in such a case, does not make the engine part of the land and as immovable property. The engine
and the pumping set were held not immovable property, it was immaterial that the engine remained affixed in the
earth for a long period. 90
Where the machinery and the building or land on which it is installed, are owned by one and the same person,
normally it should be inferred, unless the contrary is proved, that the object and purpose of installing the machinery
is to have beneficial enjoyment of the very machinery itself. However, where the machinery imbedded or installed
and the building or land belong to two different persons, the intendment and object of the person who is in
possession and enjoyment of the property in installing or annexing the machinery must normally be presumed, until
the contrary is proved, to be to exploit the benefit of the machinery alone, as he is not interested in the building or
the land. 91
Where a usufructuary mortgagee of land ran a touring cinema with cinema equipments as the intendment and
object of installing the equipment is only to have beneficial enjoyment of the very equipment during the period of
mortgage, cinema equipment was held movable property. 92
Lottery tickets. —The lottery tickets are not actionable claims but are goods. 93
Hereditary office of a Shebait. —The hereditary office of a Shebait, which would be enjoyed by a
person by turn, has been held to be an immovable property. 94
Nazul Land. —The term ‘Nazul land’ has a definite connotation. It inter alia means "land or buildings in
or near towns or villages which have escheated to the Government; property escheated or lapsed to the State;
commonly applied to any land or house property belonging to Government either as an escheat or as having
belonged to a former Government." 95
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Title to immovable property in more than one person. —Although title in respect of an immovable
property may have different concepts, it is fundamental that title of the same nature cannot be found to be existing
in two different persons where their claims thereover are opposite. 96
"Instrument". —The word is not defined. By way of interpretation it includes a non-testamentary

instrument as opposed to a will or testamentary instrument. Under
Section 2(14)of the Indian Stamp Act, 1899 , it includes "every document by which any right or liability is,
or purports to be, created, transferred, limited, extended, extinguished or recorded." A definition which has been
held to cover an account written on a sheet of paper97 as also an entry in a book purporting to be a register of sums
payable with respect to the letting out of wooden machines and rollers. 98 All fiscal enactments are, however,
construed strictly. In construing Section 49 of the Indian
Registration Act , XX of 1866, it was held that the word was used on the understanding that the writing
was not merely evidence of the transaction but was the transaction itself.99
Settlement held not transfer. —Where the testator husband had bequeathed house to his wife and
thereafter to the son, with condition that the wife would not transfer/alienate the house in any manner, after the
death of the testator suits were filed challenging the validity of the Will, in which by compromise the title of the son
to the house was upheld, mother was also given certain amount by way of maintenance, the settlement so arrived
was the claims of both the parties under the Will, held that the settlement did not amount to transfer. 1
Attested. —See also under Section 59. The attestation of persons to a document is to ensure that there
is no fraud or other vitiating circumstances in the execution of the document. 2
Essential conditions for attestation. —The essential conditions of a valid attestation are that two or
more witnesses must have seen the executant sign the instrument or have received from him a personal
acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant. 3
No particular form of attestation is required. 4 Where a document has been executed and attested at the same time,
omission on the part of the attesting witness to depose before the Court that he signed the document in the
presence of the executant has no significance and does not affect the validity of the document. 5
An agreement of reconveyance does not require attesting witness at all. Merely because the appellate Court has
used the word "attestor",
Section 3 of the T.P. Act , which defines attestation does not apply.6
Attestation means the Act of witnessing the execution of a document and subscribing the name of the witness in
testimony of such fact. Mere writing of a document does not mean execution. 7 Execution means signing or affixing
the mark of the person executing the document. Unless the document is executed that is signed or marked by the
executant, the question of bearing witness to the execution does not arise. 8 Affixing of his mark by the attesting
witness amounts to affixation. 9 It is implicit in definition of ‘attested’ in Section 3 that the executant should have
signed or affixed his mark first and then the attesting witnesses should attest it. Where a person makes the
attestation before signature is put by the executant he cannot be treated as attesting witness. 10
There is no substantial difference between the definition of attestation as contained in

S.3, T.P. Act and Cl. (c), of the
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Indian Succession Act, 1925 , which lays down the manner in which a Will shall be attested, but in the
case of a Will it is proper to refer toS.63, 63,Cl. (c) of the
Indian Succession Act, 1925 . The law does not require the production of both the attesting witnesses.11
Neither
Section 3 of the T.P. Act , nor
Section 68 of the Indian Evidence Act, 1872 , stipulates any qualifications or disqualifications, or the
persons to figure as attesting witness. The only requirement is that the attestor must have seen the executant of the
document, sign or affix his mark on the document, or has seen some other person sign the instrument, in the
presence and on the direction of the executant. It is also permissible in law for an attestor, to sign the document,
though he has not seen the executant signing it, provided the latter acknowledges his signature or mark.12 Where
the evidence of attesting witnesses is found reliable, their evidence cannot be jettisoned on the ground that they
had no acquaintance with the vendor. 13
The essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the
executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a
view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the
executant. It is essential that the witness should have put his signature animo attestandi , that is, for the purpose of
attesting that he has seen the executant sign or has received from him a personal acknowledgement of his
signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe
or an identifier or a registering officer, he is not an attesting witness. 14 If a person is to be called as an attesting
witness, he should have attested the document, seeing the testator signing or affixing his name or mark in the
instrument and the testator seeing the signing of the attesters in the Will, thereby meaning, attesters also should
sign in the presence of the testator or the executant. 15 The endorsements made by the Registrar at the time of
registration are relevant to the letters of registration only. These by itself do not prove execution. For attestation
under
Section 3, T.P. Act it is necessary that the witnesses made their signatures in the presence of
executant.16 In case of a Will the Sub-Registrar and the identifying witnesses may become attesting witnesses if
they conform to the law regarding attestation. 17 Where an indentifier merely signs his name before the Sub-
Registrar, it does not amount to attestation. 18 Where the attesting witness was neither present at the time of writing
the document nor has seen the executant putting his signature on the Will nor has he personal knowledge of the
signing of the executant, under such circumstances, it cannot be held that the Will is duly proved. 19 The mere fact
that the plaintiff and the 2nd defendant have attested mortgage would not clothe them with any right in the said
property. 20
For the validity of an instrument, attestation by two or more witnesses in necessary. The attesting witness’s
signature must be made in the presence of the executant. 21
The attestation consists in witnessing the fact of the execution of a document. 22 If the witnesses present have seen
the executant executing the document it is enough. 23 Where the scribe authenticates the executant’s pen mark, he
cannot be said to be executing the deed on behalf of the executant, the attestation cannot be said to be improper. 24
Section 59 of the T.P. Act , which amongst other things, provides that a mortgage deed shall be attested
by at least two witnesses does not in terms debar the lender of money from attesting the deed. The object of
attestation is to protect the executant from being required to execute a document by the other party thereto by
force, fraud or undue influence.25
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No doubt, neither the definition of ‘attested’ nor

Section 59 of the T.P. Act debars a party to a mortgage deed from attesting it. It must, however, noted
that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at
least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from
attesting a document, which is required by law to be attested. Where, however, a person is not a party to the deed
there is no prohibition in law to the proof of the execution of the document by that person.26
Where an attesting witness deposes before the Court that he attested a mortgage bond and other attesting
witnesses also witnessed the execution of the document, the attestation was held proved in the case. 27 Where the
statement is that the attesting witness signed in the presence of executant and that other attesting witness signed in
his presence and that he signed at the instance of the executant, attestation is proved. 28 When the attestation of a
document is not specifically challenged and no cross-examination is made regarding the details of the attestation, it
would be sufficient to say that the deed was attested by other witnesses and himself and this is enough to prove the
attestation. If the other side wants to challenge the statement it is its duty, quite apart from raising it in the
pleadings, to cross-examine the witness on these lines. 29 . When a mortgage deed was executed in favour of A & B
and thereafter A assigned his mortgage rights in favour of X and B attested the assignment, such attestation cannot
amount to transfer the rights of B to X . 30
Where the document is attested on the same day it is executed but before it is executed i.e. signed by the party,
there is no valid attestation in the eye of law. 31
Mere attestation is not enough to impute the witnesses with knowledge of the contents of the deed. 32 This is
equally true of the witnesses who identify the executant before the Registrar at the time of registration. 33 If a person
has a tangible interest in the property affected by a deed and attests that deed, his attestation is proof of his
consent. 34 But in certain cases the fact of attestation has to be taken in conjunction with other circumstances and
other connected events, which may justify an inference that the attesting witness had the knowledge of the contents
of the document and had agreed to them. 35
It is essential that the witness should have put his signature animo attestandi , that is, for the purpose of attesting
that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a
person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier
or a registering officer, he is not an attesting witness. 36
Circumstantial evidence as a mode of proof of execution of a document cannot be excluded and in a given case
such evidence can prove the due execution, which includes attestation of document, in accordance with law. Such
circumstantial evidence may consist of the internal evidence contained in the document itself, and it can be in
another form also. In a given case the presence of both of the attesting witnesses at the time of execution of the will
and the attestation by each of them can be inferred. Where the evidence shows that all series of acts towards the
execution of the document took place at one and the same time, merely because, one attesting witness perhaps
due to lapse of memory, could not say as to whether, the other attesting witness, also signed in his presence, it
cannot be said that the attestation of document did not take place in accordance with
Section 123 read with
Section 3 of the
T.P. Act .37 Where the whole of the gift deed was written in the same ink, the signature of scribe
appeared at the bottom after the signatures of the donor and the two attesting witnesses, the circumstances led to
an inference that the entire document was executed at one and the same time. 38
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Where a person alleges that the executant was not in a fit mental state to know real nature of execution, he is
required to prove the due and proper attestation of the document. 39
Under
Section 3 of the T.P. Act , it is not essential for an attesting witness to actually see the executant sign the
document in question. It is sufficient if the attesting witness receives from the executant a personal
acknowledgement of his signature or mark in the document in question and he (the attester) signs the said
instrument in the presence of the executant.40 It is not always necessary that the attesting witness should actually
see the testator signing the will. Even an acknowledgement by him would be sufficient. 41 The attesting witnesses
cannot be expected to know the correct age of each and every one of the parties to the document and these
witnesses would not be interested in such matters. There can be no presumption from the attestation that the
witnesses would not have attested the document if they know that one of the parties to the document attested was
minor. 42
Attestation by an illiterate person. —Attestation by an illiterate person is valid, as an illiterate person

can be an attesting witness. 43
Registering officer as attesting witness. —The registering officer is required to affix the date and his
signature to the endorsements (
Section 59, Registration Act, 1908 ).Prima facie , the registering officer puts his signature on the
document in discharge of his statutory duty under
Section 59 of the Registration Act, 1908 , and not for the purpose of attesting it or certifying that he has
received from the executant a personal acknowledgement of his signature.44 A registering officer or a person
identifying the executant cannot be an attesting witness. 45 The endorsements made by the Registrar at the time of
registration are relevant to the letters of registration only. These by itself do not prove execution. For attestation
under Section 3, T. P. Act, it is necessary that the witnesses made their signatures in the presence of executant. 46
In case of a Will the Sub- Registrar and the identifying witnesses may become attesting witnesses if they conform to
the law regarding attestation. 47 Where an indentifier merely signs his name before the Sub-Registrar, it does not
amount to attestation. 48
A registering officer can be attesting witness if he has signed the document for the purposes of authenticating the
signature of the executant and has made his signature as an attesting witness with such an animus and in the
executant’s presence. 49
Attestation of Will. —It is provided in

Section 68 of the Indian Evidence Act, 1872 that a document required by law to be attested, shall not be
used as evidence until one attesting witness at least has been called for the purpose of proving its execution. In the
instant case as no attesting witness of the Will was examined by the defendant, held, the execution of the Will was
not proved in the case.50 Where the deceased in the presence of the witness put his signatures and executed the
Will, the witnesses put their signatures in the presence of the deceased, the Advocate who prepared the Will put his
signatures after seeing that the executant and the other two witnesses have put their signatures as attesting
witnesses on the Will in the presence of each other, it was held that the document was not only executed and
attested by the executant and the witnesses, but in fact to it was really executed and attested. 51
Where the attesting witness deposed that the executant executed the Will in his presence, and the signatures of the
witness appeared just below the thumb impression of the executant, it was held that execution of the Will was
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proved. 52
Party to document—If can be attesting witness?— A party to a document cannot be a valid attesting
witness. 53
Scribe as attesting witness. —The signature of the scribe cannot be treated as a signature of an
attested witness; the scribe cannot be equated with the attested witness. 54 The presence of the scribe and his
signatures appearing on the document does not by itself be taken to be proof of a due attestation unless the
situation is so expressed in the document itself. 55 A close analysis of the judgment of the Supreme Court in N.
Kamalam’s case, 56 reveals that except the scribe, no other witnesses were examined, and his evidence
also did not satisfy the requirements of an attesting witness. It is difficult to discern from the said judgment, an
unequivocal proposition, that a scribe can never figure as an attestor. The doubt if any, in this regard, stood clarified
with the judgment of the Supreme Court, in Mathew Oommen v. Suseela Mathew . 57 In that case, the plea that a
scribe cannot be recognized as an attestor, is repelled. The relevant portion of the judgment reads as under :
"The learned counsel for the respondent also urged that the Will had not been attested by two attesting witnesses as
required under the law. In support of this argument it was submitted that one of the alleged attesting witnesses is only
scribe of the Will and is not attesting witness. Regarding this objection we may note that there is no requirement in law that
a scribe cannot be an attesting witness. The person concerned has appeared in the witness box as P.W. 1 and has clearly
stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an
intention to attest which is clear from the statement of P.W. 1. He categorically stated that he has signed as an attestor and
scribe. In our view, the requirement of attestation of the Will by two witnesses is fully met in the present case." 58
In the undermentioned case, 59 the evidence of PW2 scribe was held as evidence of the attesting witness. PW2
deposed that after scribing the document, he read over the contents, and thereafter, the executant signed the
document, followed by the signatures of attestors. It is after these steps, that he put his signature on the document.
Though he signed as a scribe, the fact remains that he signed after the executant put her signature on the
document. In the cross examination nothing was elicited through this witness, to discredit his version. The position
would have been different had PW2 signed the Will soon after he read it, without waiting till the executant and other
witnesses had signed it. Where a person puts his signature as scribe, he is not attesting witness, his evidence
would not prove execution of document. 60
The scribe of a document may perform a dual role. He may be an attesting witness as well as the scribe, but he will
not be so unless he intends to sign the document as an attesting witness. A person can be called an attesting
witness when he has witnessed the execution of the document and has put his signature by describing himself as
an attesting witness. When a person puts his signatures on the document both as scribe and as attesting witness,
the inference is that he functioned both as a scribe and as attesting witness. 61
A security bond - Attestation if necessary. —A security bond is not required to be attested. 62
"Signature". —A signature is the writing or otherwise affixing a person’s name or a mark to represent
his name, by himself or by his authority with the intention of authenticating a document as being that of or as
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binding on the person whose name or mark is so written or affixed. The insertion of the name, in any part of the
writing in manner to authenticate the instrument is sufficient. Although the signature be in the beginning or middle of
the instrument it is binding as if at the foot of it. The question always is, whether the party, not having signed it
regularly at the foot, yet meant to be bound by it as it stood, or whether it was left, so unsigned because he refused
to complete it but when it is ascertained that he meant to be bound by it as a complete contract, the signature is, for
purposes of execution, effective. 63
Where the vendor had signed two sheets and not the third sheet of the agreement for sale, looking to the facts and
the circumstances of the case, the agreement was found to be validly executed. 64
Self-attestation. —The purpose of attestation is to ensure authenticity and correctness of document

filed. The attestation should be by a competent person and does include a self attestation. 65
Registered. —This subject is treated in Section 49,q.v.
Where a company carrying business of exhibition of cinematographic films at the time of opening cash credit
account in bank by agreement pledged with the bank only the machinery furniture and equipment etc. and not the
lease hold rights in the cinema house, since the document did not purport to transfer any interest in any immovable
property of the company, it did not require registration, and its non-registration did not affect the validity or the
existence of the pledge of the assets of the company in favour of the bank. 66
Registration of a document gives notice to the world that such a document has been executed. Registration
provides safety and security to transactions relating to immovable property, even if the document is lost or
destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to
transactions and execution of documents. 67
Re-conveyance-deed. —A re-conveyance deed would not fall within the meaning of Section 17(1), (b)
or (c), and as such does not require to be registered. Neither would such a document require registration. 68 As
such the non-production of a witness to prove the attestation of the document would not be fatal. 69
"Attached to the earth". —This phrase is defined to mean as rooted in the earth or imbedded in the
earth. Clause (c) is an enlargement of clause (b). It implies a union with the hereditaments as to form an integral
part thereof. Clause (a) refers to what is attached by nature, clause (b) to annexations of a personal nature or
physical annexation. The phrase is used in Sections 8 and 108 (h) of this Act and in
Section 3(25)of the General Clauses Act, 1897 . The presumption which arises from the definition may
be rebutted by the subject or context wherever there is a contrary intention in determining whether or not a chattel
has become a fixture : the intention of the person affixing it to the soil is material only so far as it can be presumed
from the degree and object of annexation.70 In English law this subject is dealt with under the law of fixtures. The
principles on which they rested were relaxed in favour of agriculture as also trade and between landlord and tenant
when affixed for ornament and convenience. There the law was originally founded on the maxims, " quic quid
inaedificatur solo solo cedit " and " quic quid plantatur solo solo cedit " which have not received so wide an
application here as there.
The word ‘fixture’, though of common use in English law, has no precise legal meaning. 71 In England it does not
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necessarily mean annexed to the freehold though in India for anything to be a fixture it must be "attached to the
earth" as that expression is defined in Section 3 of this Act. Following the observations in Thakoor Chander
Poramanick v. Ram Dhone Bhuttacharjee , 72 the Privy Council held that in India there is no absolute rule of law that
whatever is affixed or built on the soil becomes part of it, and is subject to the same rights or property as the soil
itself. 73 It must further be remembered that the tendency under English law has been to restrict rather than to
enlarge the scope and operation of the law of fixtures and various exceptions have been allowed. Under such
circumstances it would obviously be inappropriate to extend the English doctrine of fixtures to this country as based
on equitable grounds, and this position is fortified for neither the Hindu law, as pointed out by Sir Barnes Peacock,
C.J., in Paramanick’s case 74 nor the Mahomedan Law, as pointed out by the Privy Council in Secretary
of State v. Charlesworth Pilling & Co., 75 recognized any law of fixtures. The
Transfer of Property Act substantially reproduces the law on the subject as recognized by Hindu and
Mahomedan jurisprudence.76
The expression "attached to the earth" has three distinct dimensions viz. (a) rooted in the earth as in the case of
trees and shrubs, (b) imbedded in the earth as in the case of walls or buildings, or (c) attached to what is imbedded
for the permanent beneficial enjoyment of that to which it is attached. Attachment of the plant with the help of nuts
and bolts to a foundation not more than 1 feet deep intended to provide stability to the working of the plant and
prevent vibration/wobble free operation does not qualify for being described as attached to the earth under any one
of the three clauses stated above. That is because attachment of the plant to the foundation is not comparable or
synonymous to trees and shrubs rooted in earth. It is also not synonymous to imbedding in earth of the plant as in
the case of walls and buildings, for the obvious reason that a building imbedded in the earth is permanent and
cannot be detached without demolition. Imbedding of a wall in the earth is also in no way comparable to attachment
of a plant to a foundation meant only to provide stability to the plant especially because the attachment is not
permanent and what is attached can be easily detached from the foundation. So also the attachment of the plant to
the foundation at which it rests does not fall in the third category, for an attachment to fall in that category it must be
for permanent beneficial enjoyment of that to which the plant is attached. 77
Nature of attachment material–extent of application. —The occasion for the limited and yet guarded
application of the English rule as to fixtures arises when the question is whether an article is "attached to the earth"
as defined by clauses (b) and (c). The English Courts have held that the mode of annexation and the object and
purpose of annexation must be looked at. 78 The same principle is embodied in clauses (b) and (c). Holding that
machinery fixed by screws, some into the wooden floors of a cotton mill and some by being sunk into the stone
flooring and secured by molten lead, was not a part of the freehold, Parke B., said : "The only question is, whether
the machines when fixed were parcel of the freehold and this is a question of fact, depending on the circumstances
of each case, and principally on two considerations : first, the mode of annexation to the soil, or fabric of the house
and the extent to which it is united to them, whether it can easily be removed, integre, salve, et commode , or not,
without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it
was for the permanent and substantial improvement of the dwelling, or merely for a temporary purpose, or the more
complete enjoyment and use of it as a chattel." 79 The doctrine which was the basis of many of the older cases that
whatever is affixed, however slightly, to the soil, becomes part of the freehold, has been dissipated once for all by
Leigh v. Taylor . 80 The principle laid down in Hellawell v. Eastwood 81 was discussed in several cases
including Holland v. Hodgson . 82 In that case, Blackburn, J., laid down the true principle that the onus of showing
that a chattel is not a fixture lies on those who assert the contrary, a principle relied on by Sargant, J., in Vaudeville
Electric Cinema Ltd. v. Muriset , 83 a case of seats affixed solidly to a cinema floor. He said : "Now what is the
position with regard to those seats? That they are in fact affixed somewhat solidly to the floor, there can of course
be no question. That being so, it seems to me, on the principle laid down by Lord Blackburn, when he was
Blackburn, J., in Holland v. Hodgson , 84 that the onus of showing they are not fixtures lies on those who assert the
contrary. There is no doubt that for the purpose of determining whether they are fixtures or not, one very material
circumstances, perhaps the most material circumstances, to be taken into account is, the purpose for which they
were fixed. The classic illustration which was given is in regard to an anchor. What Blackburn, J., said was this :
‘There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land :
but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this
purpose.’ It is a question which must depend on the circumstances of each case, and mainly on two circumstances,
as indicating the intention, viz. , the degree of annexation and the object of the annexation. When, the article in
question is no further attached to the land than by its own weight it is generally to be considered a mere chattel; see
Wiltshear v. Cottrell 85 and the cases there cited. But even in such a case, if the intention is apparent to
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make the articles part of the land, they do become part of the land. See D’Eyncourt v. Gregory . 86 Thus 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. On the other hand, an article may be
very firmly fixed to the land, and yet the circumstances may be such as to show that it was never intended to be
part of the land and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in
the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even
though it should chance that the shipowner was also the owner of the fee of the spot where the anchor was
dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension
bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by
their own weight are not to be considered as part of the land, unless the circumstances are such as to show that
they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert
that they ceased to be chattels, and that, on the contrary, 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 shew that it was intended all along to
continue a chattel, the onus lying on those who contend that it is a chattel. Applying that to the present case here, I
find the seats were affixed to the land, and therefore, as I have said, the onus lies on those who say they were not
fixtures."
This case went in a direction opposite to what was decided in Lyon & Co. v. London and City and Midland Bank
87 but there are certain distinguishable features. The contest there was between the persons who owned the chairs
and the bank, who were the mortgagees of the interest of the hirer, while in the present case the object and effect of
their annexation was the permanent improvement of the building as a place of public entertainment. In the other
case the chairs were kept on hire for a comparatively short time. The above rule as to onus does not mean that
there must be an inquiry into the motive of the persons who annex them but a consideration of the object and
purpose of the annexation as it is to be inferred from the circumstances of the case. 88 It must be conceded that
there are dicta in other cases and even decisions which shew that for some purposes even machines fixed in
concrete beds by bolts and nuts, as in Reynolds v. Ashby & Son , 89 have been treated as chattels. There is
Hellawell v. Eastwood , 90 a case of distress which has been much commented on in later cases and is of
questionable authority; there are rating cases such as Chidley v. West Ham 91 and Tyne Boiler Works
92
Co. v. Overseers of Longbenton ; there is the case of the miners huts, Wake v. Hall 93 which arose
between miners in the Peak District and landowners, and turned entirely on a local custom; there is the tapestry
case, Leigh v. Taylor , 94 which arose between a tenant for life and a remainderman; there is Fisher v. Dixon , 95
which arose between the heir and the executors of the deceased owner of the land and the machinery fixed to it.
Reynolds v. Ashby & Son 96 afforded the House of Lords an opportunity of re-establishing the true
principle. It was there held that machines fixed in a concrete bed by nuts and bolts is a fixture and not a chattel.
Where a chattel is for the permanent benefit of the property or where it is essentially a part of the building itself it is
a fixture in English law. Thus a stone garden seat, 97 bolts and bars, locks, keys, doors and windows, 1 chimney-
piece, not ornamental, or brick or mortar pillars built on a dairy floor to hold pans, 2 grate built into a chimney, 3
advertisements exhibited on substantially fixed boardings, 4 boiler screwed to a stone foundation, 5 furnaces, 6 are
fixtures, but not the pipes of a heating apparatus connected with the boiler by screws. 7 Exceptions have been
engrafted on the above rules in favour of trade, 8 and in a minor degree for agriculture. Accessories or adjuncts to
trade fixtures and which have no other existence or purpose may be removed but not brick buildings let into the
freehold although used as such accessories. 9 One cannot profess to reconcile all the cases on fixtures under
English law, but a fire-engine to work a colliery, 10 copper and brewing vessels, 11 sheds, 12 engines and boilers, 13
the pipes of a heating apparatus, 14 lime-kilns 15 have all been held to be moveable as a latitude to trade. The same
indulgence has been carried still further in case of ornamental fixtures such as chimney-pieces, pier-glasses,
hangings, wainscot fixed only by screws and the like, 16 as also pumps, stoves, grates and other articles of domestic
convenience. 17 Similarly, chairs in a theatre screwed to the floor. 18 Unless, as already observed, the articles form
an essential and integral part of the property to which they are attached and are for the permanent benefit thereof.
Gasaliers are not, 19 though electric filament lamps are, 20 chattels; the former are necessary to the practical
enjoyment of the gas-pipes to which they are attached, in the latter case the electric installation is complete without
the lamps.
In India also doors and windows, 21 tiled huts, 22 materials of a house before it is pulled down, 23 have been held to
be attached to the earth. A factory is a part of the land, so also fixed machinery comprised therein, 24 but a baling
press placed under a building intended to shelter it, was held to be moveable on the ground that it was not attached
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to a building imbedded in the earth for the beneficial enjoyment thereof but on the other hand the building was put
up for the purpose of sheltering the machinery from weather. 25
The question whether particular machinery or any particular item of property is imbedded in earth within the
meaning of
Section 3 of the T.P. Act is a question, which depends upon the facts and circumstances of each case.26
The machinery attached to earth need not necessarily be an immovable property; it all depends on the intention of
the parties. In the instant case from the surrounding circumstances and the facts of the case, it was held that the
parties intended that the machinery be treated as movable property and not immovable property and the mortgagee
was held entitled to claim a charge degree over the machinery movable property in the case. 27
Where a person had affixed machinery on the land belonging to another person, it was held that he did not intend
the machinery part and parcel of immovable property to which it was attached. 28
The Madras High Court, refusing to apply the technical English law of fixtures, observed that it would be "a
dangerous doctrine to hold in this country that plant and machinery brought into a building for the purpose of trade
being carried on whether by the owner or by the mortgagee were so annexed to the building as to make them pass
for fixtures merely because the building is sold either by the owner or by the Court in execution" and held that a sale
of a distillery did not include vats, pipes and stills, 29 and where machinery was brought in by a mortgagor after his
purchasing the land it was held to be included in his security where under Section 8 it would pass to the purchaser
on a sale. 30 Thus a fixture as understood in English law may or may not be under Indian law "attached to the earth."
The English law itself on the subject is not easily reconcilable. What is not a fixture by that law is also in our law not
"attached to the earth." The test whether a structure is "attached to the earth" is incorporation with or adherence to
the soil or physical incorporation as part of a structure so incorporated with or adhering to the soil.
Hire-purchase system. —There are cases, however, where, in spite of the protection afforded, trade
fixtures have been absorbed by the owner of the freehold or by the mortgagee and so where a machine was
fastened down to its concrete bed by bolts and nuts the House of Lords, in a contest between the mortgagee and
the owner of the machine who had supplied it to the mortgagor on the hire-purchase system, held that the machine
had been so fixed as to pass by the mortgage to the mortgagee. There Lord Lindley observed that "in dealing with
them attention must be paid not only to the nature of the thing and to the mode of attachment but to the
circumstances under which it was attached, the purpose to be served and last but not least to the position of rival
claimants to the things in dispute". 31 And in such cases any intention to be inferred from the terms of the hiring
agreement that it should remain a chattel did not prevent it from becoming a fixture. 32 In the latter case the
mortgage was after the hiring agreement and without notice of it, where an engine was affixed to the freehold by
bolts and screws to prevent it from rocking. In the former mortgage was before the hiring agreement.
Buildings. —The question which frequently arises is whether a building is a parcel of the tenement? To
be so it must be part and parcel of the freehold. It cannot be so unless it is affixed to it or to something previously
connected with it. Thus, a barn set upon pillars 33 or on a foundation of brick and stone, 34 the foundation being let
into the ground but the barn resting upon it by its own weight alone, and so a wooden shed which could be taken
down and removed, 35 is a mere chattel. In a Bombay case where a shed was no further attached to the land than
by its own weight it was considered to be a chattel. 36 Prior to the passing of the Act, oil and flour mills and steam
engine and boiler seized in execution of a decree, 37 so also a hut 38 and a superstructure of a house referred to in a
hypothecation bond which excluded the land beneath, 39 were held to be fixtures while the observations of the Full
Bench case in Thakoor Chunder Poramanick 40 are "we have not been able to find in the law or custom
of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil
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becomes a part of it, and is subjected to the same rights of property as the soil itself."
Even if the title deed or the schedule of property attached thereto does not mention that the house in the property
which is the subject of transfer is also transferred, the transferee would get title to the house situated in the
property. 41
Actionable claim meaning.— 1. A claim to any debt other than a debt secured
(a) by mortgage of immovable property, or

(b) by hypothecation or pledge of moveable property, or
2. A claim to any beneficial interest
(a) in moveable property

(b) not in possession, actual or constructive, of the claimant
3. Which the Civil Courts recognize as affording grounds for relief,
4. Whether such debt or beneficial interest be
(1) existent,
(2) accruing,
(3) conditional, or
(4) contingent. 42
Distinct elements are deducible from the definition of ‘actionable claim’ in

Section 3 of the T.P. Act . An actionable claim is of course as its nomenclature suggests, only a claim. A
claim might connote a demand, but in the context of the definition it is right, albeit an incorporeal one. Every claim is
not an actionable claim. It must be a claim either to a debt or to a beneficial interest in movable property. The
beneficial interest is not the movable property itself, and may be existent, accruing, conditional or contingent. The
movable property in which such beneficial interest is claimed, must not be in the possession of the claimant. An
actionable claim is therefore an incorporeal right.43
The rights and benefits under a contract are beneficial interest in movable properties, which can only be enforced
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by action of law. 44
No consideration is required to be shown to transfer/assignment of a decree for specific performance of contract,

which is an actionable claim. 45
The core of definition of an ‘actionable claim’ is that a claimant should be entitled to knock at the door of the Court
and the Court should recognise the claim for granting relief to him. 46
Where the owner of a land was entitled to receive installment of the purchase price from the tenant under the
provisions of Punjab Security of Land Tenures Act (24 of 1954).Section 18, the amount of installment can be
included in immovable property. Immovable properties according to Section 123 can be gifted either by registered
instrument or by delivery. The installments payable to the landowner could not be gifted by mere delivery; the only
method possible for making a gift of the amount of installment was a registered instrument. 47
A benefit under a Letter of Credit has been held to be a chose in action. 48
What are actionable claims. —In its primary sense an actionable claim is a liquidated money
obligation. 49 An unpaid dower debt, 50 right to recover insurance moneys on death of assured, 51 a policy of life
insurance, 52 amount of Provident Fund payable upon retirement. 53 Amount due on adjustments of cross
transactions, 54 deposit of moneys for due performance of duties, 55 copyright and patent, 56 claim for interest under
Section 73, Indian Contract Act, 1872 ,57 rents current due, 58 claim to future rents, 59 arrears of rents, 60
arrears of rent and royalty. Claim to debt would come within the definition of actionable claim. 62 Benefits under a
61
contract which an assignor can pass to his assignee, 63 claim to mesne profits, 64 claim to refund of earnest money,
part of price, interest and damages from a defaulting vendor, 65 a partner’s right to sue for an account of a dissolved
partnership, 66 claim to partnership share and accounts by assignee of partner, 67 right to annuity. 68 To recover
arrears of annuity charged on immovable property, 69 The right of a subscriber to a provident fund, 70 a definite sum
of money which the lessee was bound by his contract with the lessor to repay him, 71 are actionable claims. A right
to sum of money is property. Merely because the claims pending before the Arbitrator are liable to be reduced in the
Award to be passed by him, or that the Court would not allow enhancement of the awarded amount for which it is
pending in Court would make no difference. 72
Decree for specific performance is an actionable claim. 73
What are not actionable claims.— But the followings are not actionable claims: damages for breach of
contract, 74 mesne profits, 75 a decree, 76 unpaid balance of consideration on a bond, 77 a right to recover arrears of
profits assigned in a conveyance of a village share, 78 unpaid balance in hands of a unufructuary mortgagee, 79 the
interest of a partner in partnership. 80 Debt secured by hypothecation of moveable properties would not be an
actionable claim. 81 Credit entry in the Duty Entitlement Pass Book (DEPB) issued under the Import Policy (1977-
2002) cannot be described as an actionable claim. 82
Debentures. —"Debentures" includes actionable claims except where they are secured by mortgage of
immovable property or hypothecation or pledge of immovable property. 83
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REP licence/Exim Scrip. —Import licence called REP licence/Exim Scrip is neither a chose in action
nor an actionable claim. It is also not in the nature of a title deed. It has a value of its own, it is by itself a property
and it is for this reason that it is freely bought and sold in the market. For all purposes and intents, it is good. 84
A "debt" refers to an ascertained sum due from one person to another, as contrasted from un-liquidated damages
and claims for compensation which require ascertainment/assessment by a Court or tribunal before it becomes due
and payable. 85
Unsecured debt. —This term means a sum of money due by one person to another either payable
immediately or at a future date. 86 In either case it must be an ascertained sum of money. That is a liquidated
obligation. 87 On an assignment the assignor must hold to the credit of the assignee any amount realised by him. 88
The mere fact that a calculation would have to be made before determining the exact amount would not make that
amount any the less a debt. 89 At Common Law a debt was looked upon as a strictly personal obligation and an
assignment of it was regarded as a mere assignment of a right to bring an action at law against the debtor. Hence
the assignment was looked upon as open to the objection of maintenance. After a time the Common Law Courts
recognized the right of anyone who had a pecuniary interest in the debt to sue in the name of the creditors. But
Courts of Equity took a different view. They admitted the title of an assignee of a debt regarding it as a piece of
property, an asset capable of being dealt with like any other asset, and treating the necessity of an action at law to
get it in as a mere incident. 90 In order to constitute an assignment of a debt or other chose in action in equity no
particular form is necessary. In India it must be signed by either the transferor or his duly authorized agent, but no
particular form of words seems to be necessary. The language is immaterial if the meaning is plain. 91 An order for
payment of money is not the same thing as an assignment of the debt, but a direction in writing to pay the amount
due on instrument endorsed on such instrument by the payee thereof, coupled with the delivery of the instrument so
endorsed to the person to whom payment is directed, is a valid assignment within the meaning of Section 130. 92
The test is whether or not the right of the seller of the goods to the price of the same has been transferred to a third
party by an effectual assignment that the assignee becomes entitled as of right to the payment.
The endorsement on the back of a bill was in these terms : "K kindly remit to B who will collect on behalf of E" Held
that the endorsement did not amount to an assignment of the debt which was owing by K to E and that it was
nothing more than an order to pay. 93 Where an endorsement on a bond was worded as follows : " Is ruppa ko
wasul karne ka malik Nanak Chand haiga, main ne ruppa ko Nanak Chand hath baich dai haiga . Dastkhat
Bishambar Dayal. Miti Bhadon Sudi 9, Samat 1979" and immediately after there was another enforcement to the
following effect : " Is ruppa ka rupai biyaj Nanak Chand Kishori Lal set le lie . Dastkhat Bishambar Dayal. Rupai sab
aur biyaj le lie . Dastkhat Bishambar Dayal. Bhadon Sudi 9, Sambat 1979" and the endorsement was also thumb-
marked by Bishambar Dyal, held, that the words ruppa ko Nanak Chand hath baich diya haiga clearly indicate that
a complete assignment was effected. 1 An agreement between a debtor and a creditor that the debt owing shall be
paid out of a specific fund coming to the debtor or an order given by a debtor to his creditor to pay such funds to the
creditor operates as an equitable assignment. 2 In order to constitute an equitable assignment there must be an
engagement to pay out of a particular fund 3 and may take the form of an order upon a debtor. 4 But a cheque is not,
5 nor is a letter of credit, 6 though a banker’s deposit receipt duly endorsed and delivered would be a good gift
though non-transferable. 7
Part of a debt. —There has been a difference as to whether a partial transfer of a debt is valid. Under
the Judicature Act, 1873, an assignment of an amount due or to become due has been upheld and so an
ascertained part of an existing debt. 8 In a later case such an assignment was held not to pass a legal but only an
equitable right so as to constitute the assignee a creditor of the original debtor. 9 But a judgment debt cannot be split
up. 10 In India the partial transfer of a debt has been regarded as valid. 11 The same Court in an earlier case held
that the assignment of a debt must be of the whole debt. 12 This was followed by the Calcutta High Court. 13
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Hypothecation or pledge. —See commentaries on Section 58,post .
Beneficial interest. —To attract the application of Chapter VIII this must relate to moveable property
only. The benefit of a contract as distinguished from the liability thereunder is assignable because the term "benefit"
connotes beneficial right or interest with the attendant right to sue and therefore falls within the definition of
actionable claim. Such assignments are, however, subject to two qualifications. First, that the benefit sought to be
assigned is not coupled with any liability or obligation that the assignor is bound to fulfil and, secondly, that the
contract is not one which has been induced by personal qualifications or considerations as regards the parties to it.
14 Examples of transfer of benefits of contracts are found in brewers’ leases, 15 contract for the purchase of
reversionary interest. 16 Not uncommon are assignments of contracts for the purchase of lands and of builders’
leases where persons buy building plots and sell them before buildings are erected thereon. But, as observed
above, as liabilities cannot be transferred all acts are done and obligations fulfilled in the name of the assignor by
the assignee, the assignor remaining liable till the contract is carried out to the original party. A vendor’s right under
an executory contract to exercise an option at a certain future date to obtain a reconveyance of immovable property
at a certain price is assignable. 17 The benefit of a contract under a "counterpart document" to reconvey property
sold has been held assignable. 18 But a personal right or covenant cannot be validly transferred. 19
Civil Courts. —The claim to the "debt" or "beneficial interest" must be one cognizable by a Civil Court.
Where the claim is one which would lie in a Revenue Court 20 or a Criminal Court it would not be an actionable
claim.
Copyright, if can be transferred. —In India ‘copyright, which is a chose-in-action in England, is a

beneficial interest in movable property in the actual or constructive possession of the owner thereof, although
strictly not an actionable claim, but capable of being transferred by assignment evidenced by a writing executed by
the assignor or by his duly authorized agent. The writing containing such assignment need not be registered. 21
Notice. —By virtue of Section 3, a person is said to have "notice" of a fact when he actually knows that
fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross
negligence, he would have known it. 22 Notice includes within its ambit both actual and constructive notice. 23 Mere
rumours, 24 casual conversation, 25 statements by strangers, 26 do not amount to notice. An advertisement is not
notice unless it is proved to have reached the knowledge of the person sought to be charged. 27 Notice may be
actual or costructive or, as sometimes termed, "imputed" in dealings where an agent represents a principal. The
definition and explanation have been held not to have a retrospective effect. 28
Actual notice. —Actual notice must be given to a person in the character in which the notice is intended
to affect him and not in any other character. 29 It must be given not by a stranger but must proceed from a person
interested in the property. 30 It will bind, though inaccurate in particulars or extent of interest claimed. 31 It will not be
carried beyond the reason of the rule. 32 The fact that for some purpose at some time or other the mortgagee
informed the Court of the mortgage is not evidence of notice on the auction purchaser. 33 Actual notice is notice
whereby a person acquires actual knowledge of fact. It must be definite information given in the course of
negotiations by a person interested in the property for a person is not bound to attend to vague rumours. 34
Imputed notice. —Imputed notice has been dealt with in the commentaries to explanation III.
Constructive notice. —The cases on constructive notice resolve themselves into two classes : first,
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where a party charged has had actual notice that the property has in some way been charged or encumbered : and
where he has been held to have had notice of the particular charges or encumbrances affecting it and, secondly,
where the Court has been satisfied that the party charged has designedly abstained from inquiry for the very
purpose of avoiding notice. The proposition of law, upon which the former class of cases proceeds, is, not that the
party charged had notice of a fact or instrument but that he had actual notice that it did so relate. The proposition of
law upon which the second class of cases proceeds, is, not that a party charged has incautiously neglected to make
inquiries but that he had designedly abstained from making inquiries for the purpose of avoiding knowledge, a
purpose which if proved would clearly shew that he had a suspicion of the truth and a fraudulent determination not
to learn it. 35 It was held in the case of Hewitt v. Loosemore 36 that constructive notice is knowledge
which the Court imputes to a person, from the circumstances of the case, upon a legal presumption so strong that it
cannot be allowed to be rebutted, that the knowledge must exist though it may not have been formally
communicated. 37 In an earlier case this presumption was described as so violent that the Court will not allow even
of its being controverted. 38 It follows when a person closes his eyes to a single fact or procession of facts which he
would have discovered had he made the usual inquiries or searches which he ought to have made or where but for
his gross negligence in failing to follow up an inquiry or making an inquiry he would have known it. Further,
constructive notice is affected apart from the case of principal and agent by registration as well as by possession.
Notice must be in the same transaction. 39 The doctrine of constructive notice ought not to be extended but confined
within certain boundaries. 40 It has gone to its full length and must not be extended and it has never been held that it
is the duty of a proposed purchaser or mortgagee to inquire of every person who may be on the premises or any
part of those premises. Nor has it been suggested that occupation of a part of the premises would put him on
inquiry as to the possible rights of the occupier of that portion over the remainder of the premises. 41 The Bombay
High Court refused to extend the doctrine of constructive notice to a bank in which an executor and trustee opened
a number of deposit accounts with corresponding current account to which interest was credited holding that there
was nothing in the nature of his dealings with the bank to shew that he was using trust assets for improper purpose
at the time. 42 The tendency of modern decisions is unwillingness to apply the principle to companies or persons
with knowledge of facts of which they had no knowledge whatever. 43 This equitable doctrine is not applicable to
commercial and mercantile transactions. 44 In this country English decisions on constructive notice should be
applied with care and only when the Court is sure that circumstances are similar. The doctrine of constructive notice
is based on good sense, and is designed to prevent frauds on owners of property; but the doctrine must not be
carried to such an extent as to defeat honest purchasers : and although this limitation has sometimes been lost
sight of, still the limitation is as important and is as well known as the doctrine itself.
It is not the turning away from every information that amounts to constructive notice. 45 The question whether seeing
a window was notice was answered in the negative in Allen v. Seckham , 46 where the dictum of Lord Chelmsford in
Miles v. Tobin , 47 that the existence of windows was constructive notice of a right of access to them, was not
followed. That doctrine, as applied by the Vice-Chancellor, would come to this, that a purchaser is to be held to
have constructive notice of every agreement relating to any structure which he sees on the adjoining ground. The
case of Miles v. Tobin 48 was one in which the defendants had taken a lease of building land with
knowledge that the same lessees had let other land to the plaintiffs for building purposes and that under that lease
a building had been erected with windows overlooking the land taken by the defendants. The doctrine of
constructive notice ought to be narrowly watched and not enlarged. Indeed, anything "constructive" ought to be
narrowly watched because it depends on a fiction. Disputes having arisen between the plaintiff and W. whether a
window in the plaintiff’s house overlooking W.’s land was an ancient light an agreement was entered into between
them whereby plaintiff agreed to keep the window opaque and make it open only in such a way that no person
could look out of it. W.’s land was afterwards sold to the defendants who had no actual notice of the agreement but
knew of the existence of the window. It was held that the mere fact of there being windows in an adjoining house
which overlook a purchased property is not constructive notice of any agreement giving a right to the access of light
to them. 49 Where a person makes an inquiry and receives an answer which he may reasonably believe to be true,
he is entitled to act upon it. 50 In Malabar a person who takes a melkanam the term of which is to begin after the
expiry of a kanam in force in favour of a third party must be held to have had notice of an agreement for renewal
obtained by the kanamdar. 51
The question of constructive notice is a question of fact, which falls to be determined on the evidence and
circumstances of each case. 52 The principle is that intending purchaser of a property within a municipal area where
the property is subject to municipal tax which had been made a first charge on the property by statute, must be
deemed to have been with knowledge of the possibility of some arrears being due to the municipality and it,
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therefore, becomes his duty before acquiring the property whether it be a private or at a Court sale, to make
enquiries as to the amount of tax which is due or which may be due. If he fails to make this enquiry this failure
amounts to a willful abstention or gross negligence within the meaning of
Section 3, T.P. Act and a notice must be imputed to him.53 When a person other than the vendor is in
actual possession of the property it behoves a prospective purchaser to ascertain what all rights the person in
actual possession really has in respect of the property. And if he omits to do so and if equities exist in favour of the
person in possession the prospective purchaser would be bound by them. 54
A person may have knowledge of a transaction by way of publication in a newspaper, which is a constructive notice
contemplated under
Section 3 of the T.P. Act .55
Where transferee had not given any notice of transfer by registered post to the landlord, the evidence also did not
show that landlord had knowledge otherwise of the transfer, Section 3 cannot be invoked and it cannot be said that
the transfer of the property by registered notice itself amounted to notice to the landlord that the sale deed had been
executed. 56
Any person acquiring any immovable property or any share or interest in such property shall be deemed to have
notice of the title if any of the person who is for the time being in actual possession thereof. 57 Where a person
purchases property in occupation of the tenant, he would be deemed to have been notice of the earlier agreement
for sale existing in favour of the tenant. 58 The mere fact of continuance of possession is not enough to charge the
transferee with notice of the contract to sell. If the character of possession changes from that of a tenant to that of a
vendee in part performance of the contract, it must be proved that the subsequent transferee had notice thereof. 59
There is no principle or firm rule of law imputing to all intending purchasers of property in Municipal area where
Municipal taxes are a charge on the property, constructive knowledge of the existence of such Municipal taxes and
of the reasonable possibility of those taxes being in arrears. The question of constructive knowledge or notice has
to be determined on the facts and circumstances of each case. 60
Where in execution of a single money decree obtained for some of the instalments due on his mortgage bond a
mortgagee brought to sale the property which he held in mortgage, but in his application for execution did not
mention his lien on the property for the instalments that were still to fall due, the purchaser was held to have
purchased the property free of the mortgagee’s claim if he supposed that he was buying the full proprietary title. 61 A
contrary decision of the same Court proceeded on the theory of registration being notice. 62
Notice of a deed. —Notice of a deed has been held to be notice not only of its contents but of the facts
the knowledge of which then insisting on its production would have necessarily led to. 63 And this rule has been
extended where the original deed was lost or destroyed and what purported to be a true copy was produced to the
purchaser which subsequently proved to be defective inasmuch as a restrictive building covenant contained in the
original deed was absent from the copy and the purchaser was held liable. 64 In this case the purchaser had notice
that the original was in existence and was aware of the provisions of the deed before he commenced to build. So
also where a sale is subject to an agreement by the vendor to execute a mortgage the purchaser is bound by the
terms which the vendor and mortgagee may agree to insert in the mortgage. 65 A recital in a deed is notice of the
contents of that deed. 66 The true inquiry seems to be in every case whether the absence of the deed recited throws
any reasonable doubt upon the title of the vendor. 67 A general recital in a deed that there were mortgages on the
estate, was held to affect parties claiming under the deed with notice on a mortgage not specified therein. 68
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The recital of a settlement conveys notice of the will referred to therein. 69 Even though the will be inaccurately
recited in a conveyance the purchaser has notice of the real contents of the will. 70 In the case of leases general
notice to purchaser that there are leases is notice of all their contents. 71 A leasehold title puts the purchaser on
notice as to restrictions contained in the lease. 72 A purchaser of leasehold has notice of ordinary but not unusual
covenants in the original lease. 73 And this rule is equally applicable to sales by auction. 74 In case of an underlease
the grantee has constructive notice of the original lease provided he has had a fair opportunity of ascertaining the
terms. 75
In Patman v. Harland , 76 Jessel, M.R., held that a purchaser or lessee having notice of a deed forming part of the
chain of title of his vendor or lessor has constructive notice of the contents of such deed and is not protected from
the consequences of not looking at the deed even by the most express representation on the part of the vendor or
lessor that it contains no restrictive covenants nor anything in any way affecting the title. There is a class of cases of
which Jones v. Smith 77 is most notorious, where the purchaser was told of a deed which might or might
not affect the title and was told at the same time that it did not affect the title. That line of cases has no bearing at all
on a case where you know that the deed does affect the land and the question as to the extent to which it does
affect the land is to be ascertained only by looking at the deed itself. 78 Where a mortgagee taking a mortgage in
one of the towns mentioned in Section 59 where he knows that mortgages by deposit of title-deeds were legal and
usual and does not ascertain whether the title-deeds are already pledged there is such an abstention from an
inquiry which he ought to have made or such negligence as to infer notice in terms of the section. 79
Wilful abstention from inquiry or search. —This is another form of constructive notice. It arises from
disregard of information as where a person who has the means of knowledge of facts neglects to avail himself of
them, it will be concluded as though he had actual knowledge. Means of knowledge is equivalent to knowledge. 80
Knowledge must be available. 81 A purchaser, which term includes a mortgagee or a transferee of a mortgage of
land, will be deemed to have notice of all facts which he would have learned upon a proper investigation of title
under a contract containing no restriction of his rights in that respect. 82 Further, the observations of Lord Selborne
in Agra Bank v. Barry , 83 throw a considerable light on the question as to what is the duty which is cast upon a
person to make inquiry or search the abstention from which amounts to notice. His Lordship observed that the duty,
if there is a duty, is not a duty which is owed to the possible holder of a latent title or security. It is a duty merely
which a person owes to himself and the non-observance of which, unless it is explained, affects his own bona fides
. What is a sufficient explanation must always be a question to be decided with reference to the nature and
circumstances of each particular case. But if there is not actual notice, and no wilful or fraudulent turning away from
an inquiry into, and consequent knowledge of, facts which the circumstances would suggest to a prudent mind, then
the doctrine of constructive notice ought not to be applied. 84 The words "wilful abstention from inquiry and search"
must be taken to mean such abstention from inquiry or search as would show want of bona fides on the part of the
purchaser or mortgagee. 85 A mere omission to make inquiry would not amount to constructive notice within
Section 3 T.P. Act .86 A mortgagee who is informed that there are "charges" affecting the property, and is
cognizant of two only, cannot claim to be a purchaser without notice of other charges, because he believes that the
two, which satisfy the word "charges", are all the charges upon it. He is bound to inquire whether there are any
others. The rule with respect to the consequence of a purchaser abstaining from making inquiries, does not depend
exclusively on a fraudulent motive from such abstinence. When the circumstances of a case put a purchaser on
inquiry, a false answer or a reasonable answer given to an inquiry, may dispense with the necessity of further
inquiry; but where no inquiry has been made, it is impossible to conclude that a false answer would have been
given if an inquiry had been made, or such as would have precluded the necessity of any further inquiry. 87 A
purchaser or mortgagee who does not investigate the title is affected with constructive notice of what he would have
discovered on investigation although not of such matters as he would not have ascertained without going behind
the documents of title themselves. 88
When the prudence of a person requires him to make an enquiry, but due to his own negligence he failed to make
enquiry, he falls in the category of a person, with notice. 89
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A transferee of an immovable property may be fastened with the constructive notice of any prior transaction
affecting the title of the transferor, if he willfully refrains from making any inquiry, which is required from a prudent
and reasonable person. When the circumstances do not require him to make any inquiry, he cannot be fastened
with constructive notice of the prior transaction. 90
Where there is wilful abstention from inquiry or search it is not open to the plaintiff to plead Section 55(1) (a)of the
Transfer of Property Act nor to charge the defendant with fraud within the meaning of the last paragraph
of that section. The same result follows from the consideration of the sections relating to fraud and
misrepresentation in the
Indian Contract Act, 1872 .91 The occupation of land by a tenant affects a purchaser of the land with
constructive notice of all that tenant’s rights, but not with notice of his lessor’s title or rights. Actual knowledge by the
purchaser that the rents of the land are paid by the tenants to some person whose receipt of them is inconsistent
with the title of the vendor is constructive notice of that person’s right but mere knowledge that the rents are paid to
an estate agent affects the purchaser with no notice at all. 92 The Court will not apply the doctrine of constructive
notice where the party seeking the benefit of that doctrine has been guilty of secrecy in the transaction with
constructive notice of which he seeks to affect a purchaser. 93 Such a case does not fall within the exception to
Section 19 of the Indian Contract Act, 1872 . A mortgagee advancing money on the security of a
considerable estate, and omitting to investigate the title to a particular portion of it, will not be affected with notice of
equities affecting the residue of the estate, which upon such investigation he might possibly have discovered.94 This
doctrine of constructive notice was also qualified by the Calcutta High Court where the owner after carrying an
estate numbered them 93 and 93A. An absolute sale of the former dated 11th April 1911, contained a recital of two
encumbrances created by the vendor on 93A. A sale on 19th September 1911 of 93A contained a recital by the
vendor that it was not encumbered by mortgage or otherwise, a statement contradicting the recital in the former
conveyance. The Court held that the purchaser could not be said to have constructive notice of the encumbrances.
95 The ground of the decision rested on the well-known principle enunciated by Lord Redesdale in Hamilton v.
Royse 96 and quoted with approval by Smith, M.R., in Tressilian v. Canifee . 97 "If a man purchases an
estate under a deed, which happens to relate also to other lands not comprised in that purchase and afterwards
purchases the other lands to which an apparent title is made, independent of that deed, the former notice of the
deed will not of itself affect him in the second transaction, for he was not bound to carry in his recollection those
parts of a deed which had no relation to the particular purchase he was then about, not to take notice of more of the
deed than affected his then purchase."
Ought. —"Ought" here does not import a duty or obligation; for a purchaser need make no inquiry. It
means a matter of prudence, having regard to what is usually done by men of business under similar
circumstances. 98
Explanation 1. —The rule as to how far registration operates as notice has been laid down in
explanation I added to the definition of notice under Section 3, which addition has been made by Section 4 of the
Transfer of Property (Amendment) Act, 20 of 1929. Explanation – 1 to
Section 3 of Transfer of Property Act , draws a presumption that where any transaction relating to
immovable property is required by law to be and has been effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in such property shall be deemed to have notice of such instrument
as from the date of registration, provided that instrument has been registered and its registration completed in the
manner prescribed by the Indian
Registration Act, 1908 and the rules made thereunder, and the instrument of memorandum has been
duly entered or filed, as the case may be, in books kept under Section 51 of the Act, and the particulars regarding
the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of
the Act.1
The object of Expl. 1 to Section 3 is to safeguard the interests of a third party who has acquired good title under a
previous registered instrument, but does not in any way alter or modify the criminal liability of a person who
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deliberately suppresses earlier facts or misstates certain facts. 2 The doctrine of constructive notice as set out in
Explanation to Section 3 has no relevance for the purpose of determining whether a person has committed the
offence of cheating or not. 3
The explanation makes amply clear that the expression "a person is said to have notice" takes in all such
knowledge which would have been well within its know of. Thus, in its legal sense notice can be termed as an
information concerning a fact actually communicated to a party by an authorized person, or actually derived by him
from a proper source, or else presumed by law to have been acquired by him, which information is regarded as
equivalent to knowledge in its legal consequences. It therefore follows that the notice is the making something
known, of what a man was or might be ignorant of before. Hence, knowledge of any fact would put a prudent man
upon inquiry. 4
Registration as notice. —Previous to the amendment above referred to opinions in India differed as to
whether registration of a document under the Indian
Registration Act was itself a constructive notice of the transaction affected by the instrument. The
Madras5 High Court uniformly held that registration was not notice and such has been the view of the Nagpur
Courts. 6 A contrary opinion was expressed by the Lahore, 7 Patna, 8 and Rangoon 9 High Courts.
The view of the Bombay High Court that registration was notice 10 was subsequently modified in a later case when it
was held that registration did not necessarily give notice to anybody of anything unless the registered document
was so indexed as would come to the notice of an inquirer anxious to know whether there were any documents
relating to the property. 11 The modified view as adopted by the Allahabad High Court. 12 In the Calcutta High Court
the decisions were not uniform, one line of decisions was that registration was not notice, 13 while another line held
that registration was notice. 14 Yet a third view was expressed by the same Court, which held that whether
registration was or was not notice in itself depended upon the facts and circumstances of each case and upon the
degree of caution which an ordinary prudent man would necessarily take for the protection of his own interest by
search in the registers kept under the
Registration Act .15 On the matter coming up for determination before the Judicial Committee of the Privy
Council their Lordships approved the last view 16 which the Indian Courts subsequently adopted. 17 To set this
conflict at rest the Legislature had codified the law of notice.
Registration of the document is a notice to all the subsequent purchasers of the property. 18 Mere registration of a
document does not amount to notice to the entire world. Unless there are circumstances from which a presumption
could be raised, the mere fact that the deed was registered does not fix the plaintiff with the knowledge of it’s
execution on that date. 19 Where the name of the plaintiff’s mother was recorded in the revenue records on the
basis of plaintiff’s affidavit that his mother was real owner of the property, the plaintiff’s mother was also in physical
possession of the land, no further enquiry into the title of the mother of the plaintiff was expected of a prospective
vendor. Even if some enquiry was made in the office of the sub-registrar, by the defendant that would not have
yielded any result nor would have it intended that the mother of the plaintiff, who was recorded as owner in
possession in the revenue papers and was in physical possession of the property was not the owner, where no
change in the ownership of the property by any registered document had taken place after the execution of the sale
deed in favour of the plaintiff. 20
Everyone taking transfer of immovable property is under obligation to have search of the index maintained in the
Registry office, if he fails to do so, he is guilty of gross negligence and is not entitled to benefit of
Section 41, T.P. Act .21
Where a transfer in favour of first transferee was effected by a registered deed and the transferees were found in
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possession of the land, thereafter a subsequent transferee got obtained a transfer deed in respect of the same land,
the subsequent transferees would not be said to be transferees without notice. 22
A vendee of the property cannot be imputed notice of the fact that the property was a wakf property simply because
wakf had been created through a registered Will as Will is not required to be registered under the law. 23
Registration notice. —Registration to operate as notice must comply with the following conditions :—
(1) The instrument must be registered according to the Act and rules thereunder. (2) A memorandum of the
transaction must be duly entered in books kept under the Act. (3) The particulars of the transaction must be
correctly indexed.
The registration of a document has the effect of notice to the world at large in respect of transaction relating to the
property, but the doctrine of notice can have effect in a limited ambit only the ambit being the one provided by the
Transfer of Property Act . If a person wants to enter into a transaction in respect of the property, he has
to be wary and circumspect. He has to make inquiries about the legal encumbrances subsisting over the property
and if he has notice of these encumbrances, the same would bind him. Registration of a document would amount to
such a notice and, hence, the person would be bound by such encumbrances, which are registered
encumbrances.24 But all this is before a party has occasion to deal with the property. Once a property has been
dealt with, whatever happens subsequently to the property could not affect the person who had already dealt with
the property. 25 In the instant case one A had already leased the property to one of the defendants, if the defendant
effected even the registered sale deed in respect of property, it would have no effect upon A. What the defendant
had done was to effect registered sale deed. But such a registration of the lease deed would be of no effect
whatsoever so far as A was concerned. 26
Where the sale deed was a registered sale deed, and possession of land in suit on the basis of sale deed was
admitted. Held, registration of the sale deed and possession constituted notice. 27
Registration of a document transferring interest in immovable property amounts to a notice only for such person,
who acquires the property later than the date of the registration of the document. Registration of the document
subsequently could not be a notice for a person, who had previously purchased the land. 28
When a document was duly filed and particulars entered in the indexes under
Section 51 and
55 of
Registration Act, 1908 , it would amount to notice and the presumption under
Section 114 of the Indian Evidence Act, 1872 . But this presumption is not conclusive nor notice can be
inferred when there is no evidence that the document was filed in another district.29 Where a transfer in favour of
first transferee was effected by a registered deed and the transferees were found in possession of the land,
thereafter a subsequent transferee got obtained a transfer deed in respect of the same land, the subsequent
transferees would not be said to be transferees without notice. 30 Registration of a new partnership was held as
notice to all the creditors of the earlier concern. 31
What transactions are within the rule. —All transactions relating to immovable property required by
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law to be and which have been effected by a registered instrument are within the rule. Constructive notice of a deed
is constructive notice of its contents. 32 The qualification as to unregistered instruments engrafted by the Bombay
High Court 33 is not law now.
The date from which the notice operates. —Registration operates as notice from the date of
registration or where property is not all situated in one district or where the instrument registered has been
registered under sub-section (2) of Section 13 of the Indian
Registration Act of 1908 from the earliest date on which any memorandum of such registered instrument
has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired or of
the property wherein a share or interest is being acquired is situated.
Who is deemed to have notice. —A subsequent and not a prior transferee is affected by registration.
This is made clear by the words "any person acquiring." Hence payment by a mortgagor without knowledge of a
registered sub-mortgage does not vitiate the payment. 34 There is no duty on the part of a mortgagee to keep on
searching the registers or further dealings of the mortgagor with the property comprised in his mortgage and a prior
mortgagee cannot be said to have notice of subsequent encumbrances. 35 Registration of a prior transaction is
notice to a party entering into a transaction with respect to the same property on a subsequent date. 36
Mutation entry. —A purchaser who with ordinary care could have pursued his investigations beyond
the point he did, cannot complain of fraud on the part of his vendor. Both under Section 55 (1)(a) and the definition
of "notice" in Section 2 there would be want of care or a wilful abstention from inquiry or search. 37
Testamentary documents .—The notice contemplated under Explanation 1 to Section 3 by registration

of a document relates to transaction with regard to immovable property which is required by law to be and has been
effected by a registered instrument and that also for the person acquiring such property or any part or share or
interest in such property. It is not notice in rem . Testamentary documents do not come within the purview of notice
as contemplated by that section. 38
Registration by mistake in a wrong book. —Non-compliance with the provisions of the

Registration Act, 1908 does not affect any immovable property comprised therein.39 And on a failure to
make a proper index in the registration office primarily due to the negligence of the mortgagee in giving proper
description of the properties the subsequent purchaser was preferred to him. 40 When there is such an error
registration would not be notice according to provisos 2 and 3. The rulings of the various High Courts to the contrary
are no longer law. 41
Error of procedure. —Registration of an instrument not duly stamped, contrary to

Section 35 of the Indian Stamp Act, 1899 , is an error of procedure, not an act done without jurisdiction,
consequently, if it is done in good faith the registration is valid under Section 87 of the Indian
Registration Act, 1908 , and upon payment of the proper duty and penalty the instrument is admissible in
evidence.42
A.P. Record of Rights in Land and Pattadar Pass Books Act (24 of 1954). S. 5-A(4). —Under
Section 47 of the Registration Act, 1908 when a sale deed draft is registered, the same relates back to
the date of execution. But in view of the specific provision under sub-section (4) of Section 5 -A of the Act, such a
presumption cannot be drawn, at best, against the unregistered sale deeds validated under Section 5 -A of the Act
and the same will be validated only from the date of such certificates. If that be the case, the registered sale deed
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obtained by a claimant in earlier point of time will have priority over the certificates issued.43
Explanation II. —The explanation is in accordance with the third illustration to clause (b) of
Section 27 of the Specific Relief Act , 1877, which authoritatively declares the law in accordance with the
case of Daniels v. Davison , 44 repeatedly acted upon, and the remark of Wigram, V.C., in Jones v. Smith , 45 "that
possession is prima facie evidence of seisin in fee." In India it is ordinarily a presumptive proof of title. 46 Prior to this
addition it was not clear how far possession was to be regarded as notice. Till then possession was considered as
sufficient to put the would-be transferee on inquiry as to the title of such person. Dealing with the case of a tenancy,
their Lordships of the Privy Council, in Barnhart v. Greenshields , 47 observed, "in all the cases to which we have
referred it will be observed that possession relied on was the actual occupation of the land; and that the equity
sought to be enforced was on behalf of the party so in possession. There is no authority in these cases for the
proposition that notice of a tenancy is notice of the title of the lessor; or that a purchaser neglecting to inquire into
the title of the occupier is affected by any other equities than those which such occupier may insist on." That case is
referred to and cited in a number of decisions of the High Courts in this country. The earliest decision of the
Bombay High Court is Mancharji Sorabji Chulla v. Kongscoo , 48 in which it was held by Chief Justice Couch that the
English authorities on the question were applicable where a person bought an estate of which someone, not the
vendor, had possession. The leading case cited was Daniels v. Davison , 49 in which the doctrine of constructive
notice was pushed to the extreme where the Lord Chancellor held, "that where there is a tenant in possession
under a lease or an agreement a person purchasing part of the estate must be bound to inquire on what terms that
person is in possession . .. that this tenant being in possession under a lease, with an agreement in his pocket to
become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent
purchaser who made no inquiry as to the nature of his possession." That principle was followed in Sharafudin v.
Govind . 50 Prior and subsequent decisions of the same Court have adopted the same long and undisputed
principle. 51 To the same effect is the view of the Patna High Court. 52
According to the Calcutta High Court, occupation of property by tenant ordinarily affects one who would take a
transfer of that property with notice of that tenant’s rights and if he chooses to make no inquiry of the tenant, he
cannot claim to be a transferee without notice. 53 Such a transferee is liable to any equity which the tenant in
occupation could raise against him; but he is not bound by notice of the lessor’s title and he has no equity whatever.
54 The Allahabad High Court has held, where an encumbrancer is in possession the fact of such possession is
sufficient to put the would-be mortgagee on inquiry as to the title of such person. 55 The Madras High Court has held
that where it is proved that a subsequent encumbrancer under a registered conveyance had notice of a valid prior
unregistered encumbrance and of possession by such encumbrancer or of such conveyance without possession
the Courts are not bound to interpret the
Registration Act so as to defeat the title of the prior encumbrancer.56 There is no duty to attend on the
premises and examine narrowly every person 57 and the English decisions in regard to principle of constructive
notice must be applied with care. 58
A statutory presumption of "notice" arises against any person who acquires any immovable property or any share or
interest therein of the title, if any, of the person who is for the time being in actual possession thereof. 59 Notice in
Expl. 11 to Section 3 embraces constructive notice. 60 If the purchaser has relied upon the assertion of the vendor
or on his own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, he
cannot escape from the consequences of the deemed notice under explanation II to
The use of the word ‘title’ in Explanation II does not mean that the general principles with regard to constructive
notice embodied therein will not be applicable to the notice referred to in the proviso to Section 53 -A. 62 The word
‘title’ as used in the Explanation II means not only a completed title in accordance with law but also includes an
equitable interest which a transferee may acquire in any property by virtue of and under the contract of transfer. A
subsequent purchaser of an immovable property would be affected with notice of the interest of a tenant who is in
possession of the property in part performance of an unregistered agreement with the lessor and consequently with
notice of such agreement and would not succeed in defeating the tenant’s claim to retain possession under the
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protection given to him by Section 53 -A of the Act. 63 As stated by Sir Lawrence Jenkins in Baburam v. Madhab
Chandra , 64 "the occupation of property by a tenant ordinarily affects one who would take a transfer of that property
with notice of that tenant’s rights and if he chooses to make no inquiry of the tenant, he cannot claim to be a
transferee without notice."
The concept of notice as envisaged in Section 3, Explanation II shall have to be applied in determining the same
under
Section 19(b) of the Specific Relief Act, 1963 .65 Where in pursuance of the agreement for sale between
the parties, defendant has delivered mere possession of the property to the plaintiff but has not executed the sale
deed, on the other hand, the defendant transferred the property to other person, as the plaintiff did not acquire any
title, transferee cannot be imputed with the knowledge with the plaintiff’s title to the property. The plaintiff cannot be
granted decree for specific performance of the contract; the defendants’ transferees were held bona fide purchasers
of the property. 66 The construction of the word "title" occurring in Expl. II to Section 3 cannot be imported to the
construction of the expression ‘title’ and ‘transferee’ occurring in clause (b) of
Section 19 of the Specific Relief Act, 1963 . The context in which the word ‘title’ has been used in Section
19 (b) is entirely different from the context in which the word ‘title’ has been used in Explanation II to
Where the defendants alleged that they had knowledge of the nature of the possession of the plaintiff over the
property as tenant and there was no need to make any enquiry, the defendants were held not bona fide purchaser
for value and without notice of the original contract in plaintiff’s favour. 68
Where the plaintiff is in possession of the property as owner under re-conveyance of deed, it is the duty of the
defendant transferee to enquire from the plaintiff about his right under Section 3 Explanation II. 69 Where a previous
purchaser is in possession, the subsequent purchaser cannot be said to be bona fide purchaser without notice of
the previous agreement for sale. 70 An auction purchaser is duty bound to inquire about encumbrances of property
and failure to make such an enquiry would justify the inference that he had constructive notice of encumbrance. 71
The burden of proving that a subsequent purchaser is a bona fide purchaser and for value and without notice lies
on him. 72
A person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an
enquiry or search which he ought to have made or gross negligence, he would have known it. 73
From the definition of the expression, "a person is said to have notice" in
Section 3 of the T.P. Act , it is plain that the word ‘notice’ is of wider import than the word ‘knowledge’. A
person may not have actual knowledge of a fact but he may have notice of it having regard to the definition and
Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and
abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the
consequences of the deemed notice under Explanation II to
Section 3 of the T.P. Act .74 In view of the Explanation II, a statutory presumption of notice arises against
any person, who acquires any immovable property or any share or interest of the title, if any, of the person who is
for the time being in actual possession thereof. 75
In the case of R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab (D) By L.Rs. , 76 the Supreme Court held thus :
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"One of the circumstances that was held against the subsequent purchasers was that the parties were residents or
had shops in the same vicinity and it was not probable that the subsequent purchasers would not have come to
know of the execution of the agreement.
In view of what is stated above, it is clear that the defendants 2 to 5 were not bona fide purchasers for value without prior
notice of the original contract and that they were required to make inquiry as to the nature of possession of title or further
interest, if any, of the plaintiff over the suit property at the time when they entered into sale transaction notwithstanding they
were already aware that the plaintiff was in possession of the property as the tenant. What is material is the inquiry at the
time when subsequent sale transaction was entered into."
Whenever possession of a property is in the hands of a tenant, the intended purchaser must make enquiry with that
tenant to ascertain the nature of possession. Explanation II was introduced into the
Transfer of Property Act by the
Amending Act 21 of 1929. Even prior to that amendment also, the law as declared in decided cases,
was that, when a person purchased property from the owner knowing that it is in the possession of another, he is
under a duty to inquire into the nature of that possession and in the absence of such inquiry, knowledge of title
under which possession is held should be attributed to the purchaser.77 The second defendant vendee friend of the
first defendant vendor was held to have constructive knowledge of the charge for maintenance of the plaintiff wife of
the first defendant over the sold property. 78 Where the subsequent purchaser resided in near vicinity from suit
property in possession of tenant, was aware of the fact that the tenant was in possession of property since more
than 38 years, held subsequent purchaser had constructive notice of agreement of sale executed in favour of
tenant/plaintiff, he could not be held to be bona fide purchaser without notice, the tenant/plaintiff was entitled to
relief of specific performance. 79
Where the plaintiff alleged that he had entered into an agreement for sale earlier, the alleged agreement was
entered into at a place far away from the place where the land was located, the plaintiff was not in possession of the
suit land, it was held that the purchaser could not have constructive or implied notice of prior agreement and that
there was willful abstention in making enquiry or gross negligence on the plaintiff’s part. 80
Constructive possession. —Constructive possession is not possession of such a nature as to be

notice of a prior title. 81
Possession is the notice of title of the person to the whole world under
Section 3 of the Transfer of Property Act . Therefore, the previous possession of a person in respect of
the property has got to be protected in Courts of law against the whole world except the true owner unless the
remedy of the true owner is barred by limitation.82
Explanation III. —Notice to agent in the course of business has the same effect as if it had been given
to or obtained by the principal. 83
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Notice to agent is notice to principal. —It is not a mere question of constructive notice or inference of
facts but a rule of law which imputes the knowledge of the agent to the principal. 84 In a later decision the same
Tribunal while holding a minor’s contract void observed that the money-lender was throughout the transaction
absent from Calcutta and personally did not take part. It was entirely in charge of his attorney whose full authority to
act was not disputed and who stood in his place for the purpose of the mortgage and his acts and knowledge were
acts and knowledge of his principal. 85 To
affect the principal with constructive notice the agent’s knowledge must have been derived in the particular
transaction in hand; it must have been knowledge of something material to the particular transaction and something
which it was the duty of the agent to communicate to his principal. 86 Constructive notice is of two kinds. There is the
notice through an agent which Lord Chelmsford in Espin v. Pemberton 87 had called imputed notice. The
other is which Lord Chelmsford thought would more properly be called constructive notice, that kind of notice which
the Courts have inferred against a person from his wilfully abstaining from making inquiry or inspecting documents.
Where the mortgagor constituted his solicitor as general agent the knowledge of the solicitor must be imputed to
him. 88 A mortgagee is to be taken to have notice that there was a charge on the land leading him to make proper
inquiries as to its character from the mortgagor. 89
Where a solicitor is employed by a mortgagee his knowledge is the imputed knowledge of his client. 90 Evidence will
not be admitted to prove that a solicitor did not in fact communicate his knowledge to the client. 91 A solicitor
employed by both parties in a mortgage transaction by whom it was not completed concealed from the mortgagee
the existence of a settlement, notice was not imputed to him. 92 So a purchaser who does not ask to have the title-
deeds delivered, 93 or if they also relate to other property, to have them produced, 94 is deemed to have notice if they
turn out to be in the possession of a stranger and of that stranger’s rights, whatever they may be. It is quite
immaterial whether the purchaser employs a solicitor or not. 95
The above rule is, however, subject to certain limitations, viz. , that the matter for which the agent was employed
should be taken into consideration and it is necessary that the agent should be acting in the course of a particular
business for which he was employed. This general principle will be found embodied in Section 199 of the English
Property Act, 1925. The doctrine of constructive notice imputing to the principal the knowledge of the agent cannot
be extended to knowledge acquired by the agent prior to the agency being established. An auction purchaser
completed his contract to purchase without notice of the depreciatory condition of the sale described by the
mortgagee. It was observed that his employment of the mortgagee’s solicitors subsequently to the contract did not
affect him with constructive notice so as to upset a transaction of a date before the agency commenced. 96 Again, if
the agent had an interest which would lead him not to disclose to his principals the information which he has
obtained, you are not to impute to his principals knowledge by reason of the fact that their agent knew something
which it was not his interest to disclose and which he had not disclosed 97 ; without considering earlier decisions it is
sufficient to refer to the two cases of Cave v. Cave 98 and In re David Payne & Co . 99 In the former a
solicitor, who was the sole trustee of a settlement, paid the trust money in the joint name of his brother and himself
and used the fund in the purchase of land, which was conveyed to his brother alone. The property was then
mortgaged in favour of a mortgagee for whom the trustee acted as solicitor; but it was decided that this fact could
not affect the mortgagee with notice of the improper use of the trust money in the purchase of the estate. In the
latter case, the director of a company induced the advance by them of 6,000 on the security of a second mortgage
debenture in another company, with the intention of using the money for the purpose of forwarding a scheme in
which he was personally interested, a scheme outside the scope of their business. No other director of the lending
company knew anything of the circumstance. It was sought to affect the lending company by the knowledge which
the director possessed. It was decided that no such knowledge could be imputed. The knowledge of the agent must
have come to him in the transaction in which he was employed. 1 When one person is an officer of two companies
his personal knowledge is not necessarily the knowledge of both companies. The knowledge acquired by him as
officer of one company will not be imputed to the other company unless he has some duty imposed on him to
communicate his knowledge to the company sought to be affected and some duty imposed on him by that company
to receive the notice. 2 An employment of a solicitor in effecting an investment does not make him an agent to
receive notice of subsequent encumbrances or dealings by cestuis que trust of that trust fund. 3
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In a case, the proviso in Explanation III stated that the principal would not be charged with notice thereof as against
any person, who was a party to or cognizant thereof. This exclusion is possible only if the other party, who was
acting through the agent was himself cognizant of such fraud. It has to be, therefore, established that not merely the
agent but the purchaser had also participated in the fraud by active collusion amongst themselves. 4
A principal cannot be imputed with knowledge of agent not acquired in the course of his employment 5 unless the
agent has it at the time of his transaction with him 6 or acquired accidentally, 7 or in a casual conversation 8 when
there is no duty to communicate. 9 Where it is certain the agent will not communicate 10 or tells the third party he will
not communicate. 11
Concealment of fact. —Knowledge of agent is not to be imputed to the principal where the
circumstances of the case shew that the agent intented a fraud which required the suppression of the knowledge
from the principal. 12 So also where a third party and agent conspire to conceal notice. 13 The presumption which
arises from the duty of an agent to communicate what he knows to his principal may be repelled by showing that
whilst he was acting as agent he was also acting in another character, viz. , a party to a scheme or design of fraud
and the knowledge which he attained was attained by him in the latter character and therefore there is no ground on
which you can presume that duty of the agent was performed by the person who filled that double character. 14
Where an agent acts for an undisclosed principal and that fact is known to the agent of the other party the principal
of the latter is affected by such knowledge. 15 Where an agent is clothed with ostensible authority no private
instructions prevent his acts within the scope of that authority from binding his principal. 16 Where his authority
depends, and is known to those who deal with him to depend, on written mandate it may be necessary to produce,
or account for the non-production of that writing to prove the scope of his authority. 17 If the same person is agent
both for the vendor and purchaser or is himself vendor and agent for the purchaser, whatever notice he may have
will affect the purchaser. 18
The doctrine of imputed and constructive notice. —In Kettlewell v. Watson , 19 this doctrine was
discussed by Fry, J. That was a case which exhibited in a forcible manner the dangers to which purchasers of small
plots of land were exposed in not investigating the title according to the regular forms of conveyancing. After stating
the facts, his Lordship observed : "Constructive notice is of two kinds. There is the notice through an agent, which
Lord Chelmsford called imputed notice. The other, which Lord Chelmsford thought would more properly be called
constructive notice, which the Courts have inferred against a person from his wilfully abstaining from making inquiry
or inspecting documents. Fraud is a ground upon which the Courts have relieved against registered conveyances,
or even against a prior legal title. The fraud may be in an agent, . .. or the fraud may be in the principal himself. The
first question then which arises is, did the principal know of the charge? If he did not, had he an agent who knew of
the charge? Then the next question is, was it the agent’s duty to communicate that fact to the principal? If it was,
the Court always holds that he did communicate it, not because, he did in fact communicate it, but because, it
would be too dangerous to inquire whether the communication was really made; it would open the door to perjury.
Having found then that the agent both knew the fact and communicated it to his principal, the next step is to inquire
whether the principal did an act which was unconscientious, having regard to the knowledge which the Court so
imputes to him? The Court, therefore, receives evidence of the agency, and it receives evidence of the act of the
principal, but it will not receive evidence whether the agent recollected the fact at the time or whether he
communicated it to his principal. It deals with those matters by way of irrebuttable presumption when the
circumstances are known. This is Lord Chelmsford’s imputed notice. The principle which applies to the other kind of
notice is that what is said to be derived from the wilful shutting of the eyes to documents or to facts. That appears to
rest really on the same principle, viz. , that, if you see a man behaving in a way which shews that he desires to
avoid knowing something, or having the knowledge of it brought home to him, then you conclude that he knew
enough to make him desire not to have evidence of knowledge against him, and, therefore, it has been said there
may be negligence which amounts to fraud. That language has always seemed to me not strictly accurate. What a
man does through negligence he does not do from a fraudulent motive. Fraud imports design and purpose;
negligence imports that you are acting carelessly and without that design. But what is meant is this—that conduct
which might be negligent, or which might be attributable to negligence, is really attributable to a design not to know
any more and is, therefore, an indication that you knew that of which you desired to avoid the evidence." There is
Page 36 of 81
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another principle which undoubtedly is well established, and is an exception from the doctrine of imputed notice,
that which is familiarly known by reference to the case of Kennedy v. Green . 20 There, a solicitor was acting for both
mortgagor and mortgagee and it was held that the presumption, which arises from the duty of the agent to
communicate what he knows to his principal, may be repelled by shewing that, whilst he was acting as agent, he
was also acting in another character. So in the case of a vendor and purchaser, where the latter employs the
former’s solicitor even though the purchaser be an infant and the sale under the sanction of the Court. 21
An agreement for mortgage does not require registration, if registered it would not amount to constructive notice of
the agreement to the subsequent transferee. 22
Gross negligence. —Negligence imports the neglect of some duty towards the person injured. 23 It
supposes the disregard of a fact known to the purchaser and may without a fraudulent motive be so gross as to
justify the charge of constructive notice. 24 "Gross negligence" or its convertible term "culpable negligence"
sometimes called "wilful blindness" 25 is the same thing as negligence with the addition of a vituperative epithet. 26 In
Ware v. Lord Egmont , 27 Lord Cranworth stated no definite rule as to what will amount to gross or culpable
negligence can be laid down. "Where a person has actual notice of any matter of fact there can be no danger of
injustice if he is held to be bound by all the consequences of that which he knows to exist. But where he has not
actual notice, he ought not to be treated as if he had notice, unless circumstances are such as to enable the Court
to say, not only that he might have acquired, but also that he ought to have acquired, the notice with which it is
sought to affect him—that he would have acquired it but for his gross negligence in the conduct of the business in
question." That was the law laid down in Wyld v. Pickford 28 and upheld and recognized in the
Exchequer Chamber in the judgment of Mr. Justice Crompton in Beal v. The South Devon Railway Company . 29
The confusion seems to have arisen in using the word "negligence" as if it was an affirmative word whereas in truth
it is a negative word; it is the absence of such care, skill and diligence as it was the duty of the person to bring to
the performance of the work which he is said not to have performed. Therefore "gross" is a word of description not
as a definition. 30 In the same case, Erle, C.J., said : "I advisedly abstained from using a word to which I can attach
no definite meaning and no one as far as I know ever was able to do so." The question of liability for negligence
cannot arise at all until it is established that the man who has been negligent owed some duty to the person who
seeks to make him liable for his negligence. A man is entitled to be as negligent as he pleases towards the whole
world if he owes no duty to them. Negligence, however great, does not of itself constitute fraud. 31 Negligence is
passive while fraud is active. Referring to the duties of directors in Lagunas Nitrate Company v. Lagunas Syndicate
, 32 Lindley, M.R., said : "Their negligence must be not the omission to take all possible care; it must be much more
blamable than that; it must be a business sense culpable or gross." In his observations in Giblin v. McMullen , 33
Lord Chelmsford has justified the use of the term "gross negligence," tracing it as far back as Lord Holt’s celebrated
judgment in Coggs v. Bernard . 34 Lord Lindley, in Bailey v. Barnes , 35 referring to the above cited passage in Ware
v. Lord Egmont , 36 stated that "gross or culpable negligence" in that passage does not import any breach of a legal
duty, for a purchaser of property is under no legal obligation to investigate his vendor’s title. In the judgment of Vice-
Chancellor Wigram in Jones v. Smith , 37 the cases of constructive notice are reduced to two classes to which
reference has already been made. The Conveyancing Act, 1882, really does no more than state the law as it was
before, but its negative form shows that a restriction rather than an extension of the doctrine of notice was intended
by the Legislature. It is carelessness of so aggravated a nature as to indicate an attitude of mental indifference to
obvious risks. 38 It cannot be evidence of fraud although no doubt the facts proved may be evidence of negligence
or evidence of fraud. In Northern Counties of England Fire Insurance Company v. Whipp , 39 Lord Justice Fry
observed that "the expression ‘gross negligence’ that amounts to evidence of a fraudulent intention is certainly
embarrassing for negligence is the not doing of something from carelessness and want of thought or attention;
whereas a fraudulent intention is a design to commit some fraud and leads men to do or omit doing a thing not
carelessly but for a purpose." The doctrine of equity upon which Jenkins, J., relied in Monindra Chandra v.
Troyluckho , 40 that gross neglect in Section 78 of this Act means neglect that amounts to evidence of fraud as laid
down in the cases of Evans v. Bicknell , 41 Martinez v. Cooper , 42 Farrow v. Rees , 43 has not
been approved or followed in recent cases and the true rule that regulates the postponement of "legal" mortgages
in England was laid down by Lindley, M.R., in Oliver v. Hinton . 44 His Lordship held that "to deprive a purchaser for
value without notice of a prior encumbrance of the protection of the legal estate it is not, in my opinion, essential
that he should have been guilty of fraud; it is sufficient that he has been guilty of such gross negligence as would
render it unjust to deprive the prior encumbrancer of his priority." And the same was in substance stated to be the
meaning and effect of the rule for postponement in this country on the ground of "gross neglect" as used in Section
78 of this Act by the Calcutta High Court when that term came up for interpretation. 45 Wilful departure to avoid
Page 37 of 81
S.3(A)
knowledge of vendor’s title or the earlier title-deeds 46 or that the title-deeds are with another 47 or whether they are
with vendor who asserts 48 or avoiding information obtainable by search of public records, 49 wilful blindness to a
vendor’s lien apparent on the face of the deed 50 unless the vendor by acknowledgment of the whole purchase
money voluntarily arms the purchaser with means of dealing with the estate free from every shadow of
encumbrance, 51 omission to inquire into the facts disclosed in the recital and deeds or whether there are tenancies
or easements, 52 or to investigate leasehold title for onerous 53 restrictive 54 covenants, or to inquire into the
mortgagor’s equity of redemption, or into the validity of transfer or to verify the abstract, which is no evidence of title,
or whether the deeds are subject to surety bond, or that the vendor or mortgagor is under disability or the vendor
being a guardian has failed to give security, are examples of gross negligence. Further, failure to examine earlier
title deeds, 55 turning away from information that another is in actual possession is gross negligence, 56 but not
omission to investigate title of, 57 or make inquiry as to access of light to the adjoining property, 58 or to investigate
deeds which are neither directly nor presumptively connected with the property. 59 The defendant was the prior
purchaser of an unrecognized portion of a bhag from their owner and entered into possession. The plaintiffs, who
were subsequent purchasers of the whole bhag , were sued for possession from the defendant being purchasers
without notice of the defendants’ sale and having been assured by the owner and the talati that the defendant was
the tenant, it was held that abstention from inquiry from the defendant was not wilful or gross negligence amounting
to constructive notice in the absence of evidence that the plaintiffs deliberately refrained from going to the
defendant because they doubted the information of the vendor and the talati as to record of rights. 60 Observing
informality in the attestation of a will is not constructive notice of its being forged. 61
Encumbrance certificate. —The term ‘encumbrance’ in laws refers to a burden, a charge, a legal
claim, lien or liability attached to or upon a property. In the strict sense of the word, a sale, partition or release is not
an instrument. Mortgage is an encumbrance. An encumbrance relating to an immovable property issued by the
Registration Office is not only of the encumbrances, but of ‘all acts and encumbrances affecting such property. It is
an enumeration of all the documents relating to the specified immovable property, which has been registered and
entered in the Book No. 1 (and index relating to Book No.1) during the period for which search is sought. As such
an encumbrance certificate is nothing but an extract of the entries, it is not a document of title. 62
Miscellaneous. —Where a deed in question is executed by an old illiterate lady in English language,
not knowing the language and there is no evidence to show that the contents of the deed were explained to her, the
attesting witnesses also did not know the English language, the execution of the deed is invalid. 63 Where the
erasers, omissions, alteration or edition have been made in deed but evidence does not show that all such
alterations were made with the prior approval of the executant and prior to the executant made her signature on the
deed, the document is invalid. 64
Where the executant was an old and illiterate lady, the evidence of the attesting witness was not sufficient to prove
the due execution of the sale deed by her, he did not say that the executant understood the contents of the
document before she touched the pen of the scribe satisfying the execution of the sale-deed, the evidence was
equally insufficient to prove the passing of the consideration under the sale deed, it was found that the vendee did
not acquire any title to the property conveyed under the sale-deed. 65 Where the tenant had erected water tank on
the open space adjoining the open space in his possession, the overhead cement concrete tank had been placed
on the cement pillars, the structure appeared to be of a temporary nature, the construction did not amount to
permanent construction. Merely because the bricks and cement have been used in the construction would not
render the construction a permanent construction. 66
Enactments relating to contracts to be taken as part of Contract Act and supplemental to the
Registration Act .
Page 38 of 81
S.3(A)
53 Greender Chunder v. Mackintosh ,

(1879) 4 Cal 897 .
54 ILR 23 Cal 790 : 27 Cal 7.
55 LR 47 IA 239.
56 GHOSE on Mortgage , Vol. 1, p. 473.
57 STORY on Equity Jurisprudence , Art. 534, pp. 510 and 511.
58 Krishnamma v. Suranna , ILR 25 All 366 : (1893) 16 Mad 148.
59 Narain Chunder v. Data Ram Roy ,

(1882) ILR 8 Cal 597.
60 Vide observations of PONTIFEX, J., in ILR 4 Cal 897.
61 29 IA 203 : 25 All 1.
62
(1903) 30 IA 114 : 30 Cal 539.
63 Berwick & Co. v. Price, (1905) I Ch 632.
64 34 IA 179.
65 Vide Report of the Select Committee, First Report on the Transfer of Property
(Amendment) Bill, 1929.
66 Balvantrav v. Purshotam , (1872) 9 Bom HC 99; Empress v. Ramanjiyya , (1878) 2 Mad

5 ; Mangaldas v. Jewanram , (1899) 23 Bom 673 ; Nasiben v. Preosunker ,
(1882) 8 Cal 534 ; Empress v. Ashootosh ,
(1879) 4 Cal 483 , 493; Shiv Dayal v. Puthe Lal ,
(1932) 54 All 437 .
67 XXVII of 1866, Section 2.
68 XXVIII of 1866, Section 1.
69 XVI of 1908, Section 2 (6).
70 X of 1897, Section 3 (25).

Page 39 of 81
S.3(A)
71 Jnan Chand Chugh v. Jugal Kishore Agarwal ,

AIR 1960 Cal 331 [
LNIND 1959 CAL 186 ].
72 Krishna v. Akilanda , (1890) 13 Mad 54.
73 Mangaldas v. Jewanram , (1899) 23 Bom 673 ; Bejoy Chandra v. Bunker Behari ,

(1908) 13 CWN 451 .
74 Fuzlur Rahman v. Krishna Prasad ,

(1902) 29 Cal 614 ; Jagannatha v. Ram Rayar , (1905) 28 Mad 238 contra.
75 Sikandar v. Bahadur ,
(1905) 27 All 462 .
76 Surendra Narain v. Bhai Lal ,

(1895) 22 Cal 752 ; Dropadi Devi v. Ram Das ,
AIR 1974 All 473 (475) (DB).
77 Golam Mohiuddin v. Parbati ,

(1909) 36 Cal 665 .
78 Dropadi Devi v. Ram Das ,

AIR 1974 All 473 (475) (DB) :
ILR (1974) 1 All 434 (DB).
80 Atlaf Begam v. Brij Narain ,

(1929) 51 All 612 .
81 Pashupati Nath v. Sankari Prosad ,

AIR 1957 Cal 128 [
LNIND 1955 CAL 207 ] (133).
82 Punjab Urban Development Authority v. Dashmesh Educational Society ,

2005 (1) Punj LR 238 (266) (DB) (P&H).
83 Triveni Engineering & Industries Ltd. v. CCE , AIR

2000 SC 2896 :
(2000) 7 SCC 29 [
LNIND 2000 SC 1069 ] (33).

2000 SC 2896 :
(2000) 7 SCC 29 [
LNIND 2000 SC 1069 ] (33).
85 Sirpur Paper Mills Ltd. v. CCE, AIR

1998 SC 1489 :
Page 40 of 81
S.3(A)
(1998) 1 SCC 400 [

LNIND 1997 SC 2083 ] (402).

2000 SC 2896 :
(2000) 7 SCC 29 [
LNIND 2000 SC 1069 ] (33).
87 Triveni Engineering & Industries Ltd. v. CCE, AIR

2000 SC 2896 :
(2000) 7 SCC 29 [
LNIND 2000 SC 1069 ] (33).
88 Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd .,

AIR 2005 Kant 287 [
LNIND 2005 KANT 171 ] (288):
(2005) 2 Kar LJ 472 [
LNIND 2005 KANT 171 ].
89 Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd .,

AIR 2005 Kant 287 [
LNIND 2005 KANT 171 ] (289):
(2005) 2 Kar LJ 472 [
90 Jalla Begum v. Ghulam Johra , AIR 1959 J&K 33 (34) (DB).
91 Ajit K. Shah v. Nagendra N. Shah ,

AIR 1960 Cal 484 [
LNIND 1960 CAL 40 ].
92 Thangammal v. Murngammal ,
AIR 1970 Mad 325 [
LNIND 1969 MAD 131 ].
93 Kaluram v. Nagulal ,
AIR 1929 Nag 81 .
1 Natha v. Dhunbaiji , (1899) 23 Bom 1.
2 Narayan v. Vasudeo , (1891) 15 Bom 247.
3 Bhikaji v. Pandu , (1895) 19 Bom 43.
4 Sukh Lal v. Bishambhar ,

(1917) 39 All 196 ; Raghoo Pandey v. Kassy Parey ,
(1884) 10 Cal 73 .
Page 41 of 81
S.3(A)
5 Krishnabhat v. Kapabhat , (1869) 6 Bom HC 137; Balvantrav v. Pirshotam , (1872) 9 Bom

HC 99.
6 Futtehsangji v. Desai Kallian , (1874) 13 Beng LR 254 : 1 IA 34.
7 Kodulal v. Beharilal ,
AIR 1932 Sind. 60 .
8 Bhundal Panda v. Pandol Pos , (1888) 12 Bom 221 ; Ram Gopal v. Nurumuddin ,
(1893) 2 Cal 446 ; Parbuttey v. Mudho ,
(1878) 3 Cal 276 ; Sitaram v. Pelia , (1918) 14 Nag 35.
9 Shib Haldar v. Gapi Sundari ,

(1897) 24 Cal 449 .
10 Nahananda v. Mongala ,
(1904) 31 Cal 937 .
11 Manya v. Sitaram , (1927) 23 Nag 16.
12 Ananda Behera v. State of Orissa , AIR

1956 SC 17 (19) :
1955 (2) SCR 919 [
LNIND 1955 SC 84 ].
13 Lokenath v. Jahania, (1911) 14 CLJ 572.
14 Babu Lal v. Bhawani Das,

(1912) 9 ALJ 776 ; Bhudels Chandra Roy v. Bhik Shanker Patnaik,
AIR 1942 Pat 120 .
15 Bhudeb Chandra Roy v. Bhik Shanker Patnaik ,

AIR 1942 Pat 120 ) : (1942) 1961 C 837.
16 Madhavrao v. Kashibai , (1910) 34 Bom 287.
17 Krishnaji Pandurang v. Gajanan Balvant , (1909) 33 Bom 373.
18 Collector of Thana v. Krishnanath , (1881) 5 Bom 322.
19 Kamal Singh v. Kati Mahto ,

AIR 1955 Pat 402 (404) (DB); Ramlal Ganjhee v. Lodha Munda ,
AIR 1952 Pat 201 .
20 Manoharlal v. State of M.P. ,

AIR 1959 MP 120 (DB) :
1959 MPLJ 268 .
Page 42 of 81
S.3(A)
21 Velayudhan Padmanabhan v. Thyagarajan ,

2011 (3) KLT 867 (875) (Ker).
22 Michel Michel v. Narayan Potti , AIR 1955 NUC (Trav-Co.) 1040.
23 Durga Matha Building Constructions Co-op. H. Socy. Ltd., v. S. Yellaiah ,

AIR 2010 A.P. 231 [
LNIND 2010 AP 503 ] (235, 236) (DB).
24 Churaman v. Balli ,
(1887) 9 All 591 ; Herranund v. Ozecrun , (1868) 9 W.R. 102; Bhoalee Singh v.
Nemoo Behoo , (1869) 12 W.R. 498; Hurmuzi Begum v. Harday Narain ,
(1880) 5 Cal 921 ; Gobind Chunder v. Ram Chunder , (1873) 19 W.R. 94.
25 Keshav v. Vinayak , (1899) 23 Bom 22 ; Collector of Thana v. Hari Sitaram , (1882) 6

Bom 546 ; Maharana Fatesangji v. Desai Kallianrayaji , (1873) 10 Bom HC 281; Balvantrav v. Purshotam , (1872) 9
Bom HC 99.
26 Elumalai v. Balakrishna , (1921) 44 Mad 965.
27 Paresh Nath v. Nabogopal ,

(1902) 29 Cal 1 .
28 Chullile v. Othenam,
(1914) 27 MLJ 339 .
29 Jang Bahadur v. Bhagatram ,

(1930) 52 All 232 .
30 Kanti Ram v. Kutubuddin ,

(1895) 22 Cal 33 ; Ram Shankar Lal v. Ganesh Prasad ,
(1907) 29 All 385 .
31 Elumalai v. Balakrishna , (1921) 44 Mad 965.
32 Parashram v. Govind , (1897) 21 Bom 226 ; Kanti Ram v. Kutubuddin ,

(1895) 22 Cal 33 ; Mahalavu v. Kusaji , (1894) 18 Bom 739.
33 Lai Umrao v. Lal Singh ,

(1924) 46 All 917 ; Karim-un-nissa v. Phul Chand ,
(1893) 15 All 134 ; Tarvadi v. Bai Kashi , (1901) 26 Bom 305 ; Nataraja v. The South
Indian Bank of Tinnevelly , (1911) 37 Mad 51 ; Debendra v. Rup Lall ,
(1886) 12 Cal 546 .
34 Indore State v. Visheshwar ,

(1935) 57 All 353 .
Page 43 of 81
S.3(A)
35 Appalaraju v. Yendukondalu ,
AIR 1958 AP 713 (715) (DB).
36 Chief Controlling Rev. Authority v. A.B. Project ,

AIR 1979 All 355 (359) : 1979 All LJ 990 (SB).
37 Chief Controlling Rev. Authority v. A.B. Project ,

AIR 1979 All 355 (358, 359) : 1979 All LJ 990 (SB); Ganesh Chandra v. State of
West Bengal ,
AIR 1958 Cal 114 [
LNIND 1957 CAL 152 ] (116) : 62 CWN 49.
38 Bihar E.G.F. Co-op. Society v. Sipahi Singh, AIR

1977
SC 2149 (2153) :
(1977) 4 SCC 145 [
LNIND 1977 SC 261 ] ; Ananda Behera v. The State of Orissa , AIR
1956 SC 17 : AIR (
1956 SC 17 ; Ganesh Chandra v. State of West Bengal ,
AIR 1958 Cal 114 [
LNIND 1957 CAL 152 ] (116) : 62 CWN 49.
39 Ganesh Chandra v. State of West Bengal ,

AIR 1958 Cal 114 [
LNIND 1957 CAL 152 ] (116) : 62 CWN 49.
40 (1875) 1 C.P.D. 35.
41 Ashloke Singh v. Bodha Ganderi ,

AIR 1926 Pat 125 (mango tree) confirmed on appeal (1926) 5 Pat 765 on another
point.
42 Shiv Dayal v. Puttu Lal ,

(1932) 54 All 437 (mango and jamban) trees; Chandi v. Sat Narain ,
AIR 1925 Oudh 108 (mahua grove); Katwaru Chamar v. Ram Adhin , (1912) 10
A.LJ 516 (mango, mahua and plum trees).
43 Seeni Chettiar v. Santhanathan , (1896) 20 Mad 58.
44 Mathura Das v. Jadubir Thapa ,

(1906) 28 All 277 .
45 Alisaheb v. Mohidin ,
(1911) 13 Bom LR 874 [
46 Natesa v. Tangavelu , (1915) 38 Mad 883 (887).
47 Chandi v. Sat Narain ,

AIR 1925 Oudh 108 ; Katwaree Chamar v. Ram Adhin ,
(1912) 10 ALJ 516 .
Page 44 of 81
S.3(A)
48 Krishnarao v. Babuji , (1900) 24 Bom 31 ; Katwaree Chamar v. Ram Adhin ,

(1912) 10 ALJ 516 .
49 Krishnarao v. Babuji , (1900) 24 Bom 31 ; Nahanchand v. Modi , (1907) 31 Bom 183

(197).
50 State v. Motilal Partap Singh & Co.,

AIR 1981 HP 8 [
LNIND 1980 HP 27 ] (11) (DB); Baijnath v. Ramadhar ,
AIR 1963 All 214 [
LNIND 1962 ALL 179 ] (FB) : 1963 All LJ 33.
51 State v. Motilal Partap Singh & Co. ,

AIR 1981 HP 8 [
LNIND 1980 HP 27 ] (11) (DB); Ajit Kumar v. State of West Bengal ,
AIR 1957 Cal 350 [
LNIND 1956 CAL 172 ]: 60 CWN 714.
52 State v. Motilal Partap Singh & Co.,

AIR 1981 HP 8 [
LNIND 1980 HP 27 ] (12) (DB); State of Madras v. Gannon Dunkereley & Co., AIR
1958 SC 560 :
1959 SCR 379 [
LNIND 1958 SC 39 ] : 60 CWN 714.
53 Jagdish v. Mangal Pandey ,

AIR 1986 All 182 [
LNIND 1985 ALL 285 ] (183); Ajit Kumar v. State of West Bengal ,
AIR 1957 Cal 350 [
LNIND 1956 CAL 172 ].

AIR 1986 All 182 [
LNIND 1985 ALL 285 ] (184); District Board Benares v. Churhu Rai ,
AIR 1956 All 680 [
LNIND 1956 ALL 46 ]: 1956 All LJ 872.

AIR 1986 All 182 [
LNIND 1985 ALL 285 ] (185).
56 Joseph v. Joseph Annamma ,

AIR 1979 Ker 219 [
LNIND 1979 KER 9 ] (223).
57 Walamji v. Anil Charan ,

AIR 1975 Cal 92 [
LNIND 1974 CAL 98 ] (96) (DB).
58 Shantabai v. State of Bombay , AIR

1958 SC 532 (536) :
1959 SCR 265 [
Page 45 of 81
S.3(A)
LNIND 1958 SC 28 ] ; see also Pushpapriya Devi v. State of Maharashtra, AIR

1978 SC 107 :
(1978) 2 SCC 534 [
LNIND 1978 SC 117 ].
59 Bodha Ganderi v. Ashloke Singh , (1926) 5 Pat 765.
60 Vellachami v. Samusuvava ,
AIR 1928 Mad 392 [
LNIND 1927 MAD 132 ].
61 State of Orissa v. Titaghur Paper Mills Co. Ltd., AIR

1985 SC 1293 (1310, 1311) : (1985) Supp SCC 280 ; see however— Bharat
Sebaigrass Ltd. v. State of Madhya Pradesh , AIR 1955 NUC (Cal) 5612 (DB) (Bamboos held immovable property).
62 Seeni Chettiar v. Santhanathan , (1897) 20 Mad 58.
63 Misri Lal v. Mozhar Hossain ,

(1886) 13 Cal 262 .
64 Babu Ram v. Ram Sarup ,

AIR 1926 All 164 ; Bansidhar v. Sant Lal ,
(1888) 10 All 133 ; Misri Lal v. Mozhar Hossain ,
(1886) 13 Cal 262 .
65 Hari Charan v. hari Kar ,

(1905) 32 Cal 459 .
66 State of Orissa v. Titaghur Paper Mills Co. Ltd , AIR 1985

SC 1293 (1350) : 1985 Supp SCC 280 ; Jagmohan Singh v. Emperor ,
AIR 1932 Pat 344 .
67 Kalka Prasad v. Chandan Singh ,

(1888) 10 All 20 .
68 State of Orissa v. Titaghur Paper Mills Co. Ltd , AIR 1985

SC 1293 (1350) : 1985 Supp SCC 280.
69 Baldeo Pershad v. Miller ,

(1904) 31 Cal 667 .
70 Atmaram v. Doma, (1896) 11 CPLR 87.
71 Parmanand v. Birkhu , (1909) 5 Nag 21.
72 Velayudhan v. State Co-operative Employees Pension Board ,

2011 (3) KLT 867 :
2011 (3) KLJ 146 .
Page 46 of 81
S.3(A)

AIR 1986 All 182 [
LNIND 1985 ALL 285 ] (184); Walamji v. Anil Charan ,
AIR 1975 Cal 92 [
LNIND 1974 CAL 98 ] (96).
74 (1897) 20 Mad 58.
75 Suresh Chand v. Kundan,

(2001) 10 SCC 221 (224) :
2000 (7) SCALE 620 .

(2001) 10 SCC 221 (224, 225) :
2000 (7) SCALE 620 .
77 Bibi Sayeeda v. State of Bihar , AIR

1996
SC 1936 (1944) :
(1996) 9 SCC 516 [
LNIND 1996 SC 867 ]. See also State of Bihar v. Rameshwar Pratap Narain Singh ,
AIR
1961 SC 1649 :
1962 (2) SCR 382 [
LNIND 1961 SC 204 ].
78 Vishwanath v. Ramraj ,
AIR 1991 All 193 [
LNIND 1990 ALL 107 ] (195).
79 Fatmabibi v. Irfana Begam ,

AIR 1980 All 394 (395); Baijnath v. Ram Adhar,
AIR 1963 All 214 [
LNIND 1962 ALL 179 ] (FB) : 1963 All LJ 33 (FB).
80 Haji Shukhan v. Board of Revenue ,

AIR 1979 All 310 (312) (SB) : 1979 All LJ 887.
81 State Bank of Patiala v. Cohan Hutamaki (India) P. Ltd .,

AIR 1982 HP 27 [
LNIND 1981 HP 7 ] (28).
82 Bamadev v. Monorama ,
AIR 1974 AP 226 [
LNIND 1973 AP 66 ] (230, 231) (DB) :
(1974) 1 APLJ 32 [
LNIND 1973 AP 66 ] ; Duncan’s Industries Ltd. v. State of U.P , AIR
2000 SC 355 :
(2000) 1 SCC 633 [
LNIND 1999 SC 1096 ] (639, 640);
(1944) 2 MLJ 60 [
LNIND 1944 MAD 117 ] (Plant and Machinery of bone mill).
Page 47 of 81
S.3(A)
AIR 1974 A.P. 226 [
LNIND 1973 AP 66 ] (230, 231) (DB).
84 Duncans Industries Ltd. v. State of U.P ., AIR

2000 SC 355 :
2000 (1) SCC 633 [
LNIND 1999 SC 1096 ] (649) (633) (640).
85 Ratansjo D. Patel v. Srigopal Bagla , 2006 (3) Cal HN 584 (590) (DB) (Cal).
86 Duncans Industries Ltd. v. State of U.P ., AIR

2000 SC 355 :
2000 (1) SCC 633 [
LNIND 1999 SC 1096 ] (649) (633) (640)
87 Inox Air Products Ltd. v. Rathi Ispat Ltd.,

(2007) 136 DLT 101 [
LNIND 2006 DEL 1217 ] (107) (DB) (Del).
88 Timothy Bowen v. Clenergen Corporation,

2011 (6) CTC 835 [
LNIND 2011 MAD 4184 ] :
2012 (110) AIC 710 (Mad).
89 Perumal Naichker v. T. Ramaswamy Kone ,

AIR 1969 Mad 346 [
LNIND 1967 MAD 177 ] (DB) :
(1968) 2 MLJ 493 [
LNIND 1967 MAD 177 ].
90 Perumal Naichker v. T. Ramaswamy Kone ,

AIR 1969 Mad 346 [
LNIND 1967 MAD 177 ] (DB) :
(1968) 2 MLJ 493 [
LNIND 1967 MAD 177 ] : 62 CWN 49 (
AIR 1955 Mad 620 [
LNIND 1955 MAD 59 ] (FB) &
AIR 1940 Mad 527 followed ).
AIR 1974 AP 226 [
LNIND 1973 AP 66 ] (230, 231) (DB) :
(1974) 1 APLJ 32 [
LNIND 1973 AP 66 ].
AIR 1974 AP 226 [
LNIND 1973 AP 66 ] (231) (DB) :
(1974) 1 APLJ 32 [
LNIND 1973 AP 66 ].
Page 48 of 81
S.3(A)
93 Dipak Dhar v. State , AIR

1986 SC 63 (75) :
(1986) 1 SCC 414 [
LNIND 1985 SC 319 ].
94 Ram Rattan v. Bajrang Lal , AIR 1978

SC 1393 (1397) :
(1978) 3 SCC 236 [
LNIND 1978 SC 159 ].
95 Narain Prasad Aggarwal v. State of M.P. , AIR 2007

SC 2349 (2354) :
(2007) 11 SCC 736 [
LNIND 2007 SC 739 ].
96 Narain Prasad Aggarwal v. State of M.P. , AIR 2007

SC 2349 (2355) :
(2007) 11 SCC 736 [
LNIND 2007 SC 739 ].
97 Mulchand v. Kashibullav ,
(1908) 35 Cal 111 .
98 Mutasaddi v. Harkash ,
(1914) 36 All 11 .
99 Somu v. Rangammal , (1871) 7 M.HC 13.
1 Mahesh Chand Sharma v. Raj Kumari Sharma , AIR

1996 SC 869 (879) :
(1996) 8 SCC 128 [
LNIND 1995 SC 1223 ])
2 Gomathi Ammal v. Krishna Iyer ,

AIR 1954 Mad 126 [
LNIND 1953 MAD 37 ] (127) :
(1953) 2 MLJ 303 ; Mahagopal Singh v. Neela Singh,
2009 (1) ALD 226 :
2008 (6) ALT 154 (DB).
3 Dhruba v. Paramananda ,
AIR 1983 Orissa 24 (25) : (1982) 54 CutLT 560; B. Rajegowda v. H.B.
Shankargowda ,
AIR 2006 Kant 48 [
LNIND 2005 KANT 496 ] (53) :
2006 AIHC 401 ; Sayed Zaharul Hussain v. Mahadeo Ramji ,
AIR 1944 Nag 149 ; P. Ramchandran Nair v. Surpana Tapan Das ,
AIR 2003 Bom 457 [
LNIND 2003 BOM 455 ] (465); Jagdeo v. Deo Chaudhary ,
AIR 1958 Pat 566 (567)
Page 49 of 81
S.3(A)
4 P. Ramchandran Nair v. Surpana Tapan Das ,

AIR 2003 Bom 457 [
LNIND 2003 BOM 455 ] (465).
5 Dhruba v. Paramananda,
AIR 1983 Orissa 24 (26); Naresh Charan Das Gupta v. Paresh Charan Das Gupta ,
AIR
1955 SC 363 :
(1955) 1 SCR 1035 [
LNIND 1954 SC 16 ].
6 H.S. Rludrappa v. H.Y. Shivalingappa , 1999

AIHC 4543 (4544) (Kant).
7 S.T. Singh v. S.K. Singh ,

AIR 1973 Gau 64 (66).
8 S.T. Singh v. S.K. Singh ,

AIR 1973 Gau 64 (66); Sant Lal Mahton v. Kamala Prasad , AIR
1951 SC 477 :
1952 SCR 116 [
LNIND 1951 SC 57 ] ; Pran Nath Sarkar v. Jadu Nath Saha ,
(1905) ILR 32 Cal 729; Godawaribai v. Sampat ,
AIR 1923 Nag 45 ; Dhana Mohammed v. Nastulla Molla
AIR 1926 Cal 637 : (1926) 921 C 948 ; Dahu v. Janardan,
AIR 1950 Pat 368 . 28 Pat 158.
9 Hira Lal v. Gokul ,

AIR 1944 All 61 : (1944) All LJ 7 ; Chiranji Lal v. Poorna ,
AIR 1914 All 306 : (1914) 12 All LJ 1114 : 261 C 84; Dahu v. Janardan ,
AIR 1950 Pat 368 : 28 Pat 158.
10 Tarachand v. Kesrimal , AIR

1973 Raj 123 (127); Nathu v. Ghisia,
1967 Raj LW 51 .
11 Bala Prasad v. Bhola Nath ,

AIR 1981 NOC 29 (All-DB).
12 Atha Dubba Rajam v. Atha Pochaiah ,

AIR 2007 AP 137 [
LNIND 2006 AP 1359 ] (140) :
2007 AIHC 321 NOC :
(2007) 4 Andh LT 260 [
LNIND 2006 AP 1359 ].
13 Pidikiti Venkatarathnam v. Dr. Ramanavarapu Sampath Kumar ,

2010 (5) ALD 387 :
2010 (5) ALT 136 .
14 Abdul Jabbar v. Venkata Sastri, AIR 1969

SC 1147 (1151) : 1969 (3) SCR 513; Sri Gajanan Stores Hyderabad v. Shailaja
Khadilkar,
Page 50 of 81
S.3(A)
2012 (4) ALD 732 :

2012 (5) ALT 43 (A.P.) (DB).
15 Marcus R. Dare (Capt.) v. Euice Rani Sankaran (Dr. Mrs.), 2006 (3) Mad LJ 1 (12) (Mad).
16 Mayur Banj State Bank v. Bhabatosh Das ,

AIR 1961 Ori 178 (DB) (AIR
1939 PC 117 followed ).
17 Ammu D/o P. Kannu v. Krishnan S/o T. Kunhunni ,

AIR 1965 Ker 32 [
LNIND 1964 KER 160 ].
18 Dharamdas v. Kashi Nath ,

AIR 1959 Cal 243 [
LNIND 1958 CAL 76 ] (247) (DB) :
(1959) 64 CWN 332 , though a Full Bench of Madras High Court in the under
mentioned case (Verrappa Chettiar v. Subramanya Ayyar ,
AIR 1929 Mad 1 [
LNIND 1928 MAD 202 ] (FB), had taken a contrary view.
19 B. Rajegowda v. H.B. Shankargowda ,

AIR 2006 Kant 48 [
LNIND 2005 KANT 496 ] (54) :
2006 AIHC 401 .
20 Guruswami Mudaliar v. M. Murugesan ,

2003 (2) Mad LW 493 (501) (Mad).
21 Sri Gajanan Stores Hyderabad v. Shailaja Khadilkar,

2012 (4) ALD 732 :
2012 (5) ALT 43 (A.P.) (DB).
22 Jagdeo v. Deo Chaudhary ,

AIR 1958 Pat 566 (567).

AIR 1958 Pat 566 (567).

AIR 1958 Pat 566 (567).
25 Harish Chandra v. Bansidhar , AIR 1965

SC 1738 (1739) :
(1966) 1 SCR 153 [
LNIND 1965 SC 159 ].
26 Harish Chandra v. Bansidhar , AIR 1965

SC 1738 (1739) :
(1966) 1 SCR 153 [
LNIND 1965 SC 159 ].
Page 51 of 81
S.3(A)
27 Kishore Chandra v. Ganesh Prasad, AIR

1954 SC 316 (319) :
1954 SCR 919 [
LNIND 1954 SC 32 ].
28 Gansi Lal v. Bhuri Devi , AIR

1964 Raj 39 . (Kundan Lal v. Mt. Musharrafi Begam , AIR
1936 PC 207 ; N.C. Das Gupta v. P.C. Das Gupta , AIR
1955 SC 363 :
(1955) 1 SLR 1035 relied on ); In Umrao v. Bakshi Gopal Bux ,
AIR
1957 Raj 180 :
(1955) 5 Raj 971 :
1956 Raj LW 534 , the executant had not signed the Will in the presence of the
witness nor did the executant acknowledged the signatures on the Will before the attesting witness — Attestation not
proved)
29 Sakina Bai v. Sakina Bai ,

AIR 1963 MP 286 [
LNIND 1962 MP 69 ] (DB) (
AIR 1950 Nag 83 relied on).
30 P.K. Sivagaminatha Pillai v. N.K.S. Dharmalinga Mudaliar ,

AIR 1963 Mad 21 [
LNIND 1962 MAD 73 ].
31 Sant Lal v. Kamala Prasad , AIR

1951 SC 477 (480, 481) :
1952 SCR 116 [
LNIND 1951 SC 57 ].
32 Rajammal v. Sabapathi Pillai , AIR

1945 PC 82 (83) : (1945) All LJ 264 : (1945) 1 Mad LJ 397; Badri Narayanan v.
Rajabagyathammal,
(1996) 7 SCC 101 (Attestation by an illiterate person by thumb impression);
Abbasali Shah v. Mohd. Shah ,
AIR 1951 MB 92 (95, 96) : 1951 Bh LR MB 57.
33 Rajammal v. Sabapathi Pillai , AIR

1945 PC 82 (83) : (1945) All LJ 264 ; Dharam Das v. Kashinath ,
AIR 1959 Cal 243 [
LNIND 1958 CAL 76 ] (247) (DB) :
(1959) 64 CWN 332 .
34 Alamelu Ammal v. Govindasamy Naicker,

(2003) 2 MLJ 99 [
LNIND 2003 MAD 451 ].
35 Abbasali Shah v. Mohd. Shah ,

AIR 1951 MB 92 (95, 96) : 1951 Bh LR MB 60.
36 See M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons, AIR
1969 SC 1147 :
Page 52 of 81
S.3(A)
1969 (3) SCR 513 [

LNIND 1969 SC 37 ]; Pyare Mohan v. Narayani , AIR
1982 Raj 43 (46) :
1981 Raj LW 553 .
37 Pyare Mohan v. Narayani , AIR

1982 Raj 43 (46) :
1981 WLN 616 .
38 Pyare Mohan v. Narayani , AIR

1982 Raj 43 (46, 47) :
1981 Raj LW 553 .
39 Radhamohan alias Sridhar Mohapatra v. Haribandhu Sathua ,

AIR 1991 NOC 109 (Ori).
40 Sugra Khatun v. Bhagaban Das

,
AIR 1977 Ori 146 [
LNIND 1977 ORI 56 ] (148); Venkatrao v. Venkateswarrao ,
AIR 1956 Andh 1 (6) (DB) : 1955 Andh WR 783.
41 Venkatrao v. Venkateswarrao ,
AIR 1956 Andh 1 (6) (DB) : 1955 Andh WR 783.
42 V.M. Nampoothiri v. K.K. Kuruvila ,

AIR 1957 Ker 103 [
LNIND 1957 KER 13 ] (105) :
ILR 1957 Ker 367 :
1957 Ker LT 799 .
43 Biswanath v. Babu Ram ,

AIR 1957 Pat 485 (486) (DB); see also Maikoo v. Santoo ,
AIR 1936 All 576 (FB).
44 Abdul Jabbar v. Venkata Sastri , AIR 1969

SC 1147 (1151) : 1969 (3) SCR 513.

SC 1147 (1151) : 1969 (3) SCR 513; See also Sakharam Shrinivas v. Sushilalbal,
AIR 1953 Nag 339 : 1953 Nag LJ 425.
46 Mayur Banj State Bank v. Bhabatosh Das ,

AIR 1961 Ori 178 (DB) (AIR
1939 PC 117 followed ).
47 Ammu D/o P. Kannu v. Krishnan S/o T. Kunhunni ,

AIR 1965 Ker 32 [
LNIND 1964 KER 160 ].
48 Dharamdas v. Kashi Nath ,

AIR 1959 Cal 243 [
Page 53 of 81
S.3(A)
LNIND 1958 CAL 76 ] (247) (DB) :

(1959) 64 CWN 332 , though a Full Bench of Madras High Court in the under
mentioned case (Verrappa Chettiar v. Subramanya Ayyar ,
AIR 1929 Mad 1 [
LNIND 1928 MAD 202 ] (FB)), had taken a contrary view.
49 Ramesh Dutt Salwan v. The State ,

AIR 1989 NOC 47 : (1988) Rajdhani LR 387 (Del); Umarao v. Bakshi Gopal Bux ,
AIR
1957 Raj 180 : ILR
(1955) 5 Raj 971 :
1956 Raj LW 534 .
50 Sarabjeet Kaur v. Gurmeet Kaur,

(2009-1) 153 Punj LR 408 (411) (P&H).
51 Jamunabai v. Surendrakumar ,
AIR 1995 MP 274 [
LNIND 1995 MP 80 ] (281).
52 Roked Chand v. Smt. Rajeshwari Devi ,

AIR 2009 (NOC) 3009 (Raj).
53 Gomathi Ammal v. Krishna Iyer ,

AIR 1954 Mad 126 [
LNIND 1953 MAD 37 ] (128) : (1953) 2 Mad LJ 303.
54 N. Kamalam (D) v. Ayyaswamy , AIR

2001 SC 2802 (2810, 2811) :
(2001) 7 SCC 503 [
LNIND 2001 SC 1589 ] ; Chikkanan v. A.R. Perumal ,
AIR 2005 NOC 43 : (2004) 3 Mad LJ 662 (Mad).
55 N. Kamalam (D) v. Ayyaswamy, AIR 2001

SC 2802 (2811) :
(2001) 7 SCC 503 [
LNIND 2001 SC 1589 ].
56 AIR
2001 SC 2802 :
(2001) 7 SCC 502 .
57 AIR
2006 SC 786 :
(2006) 1 SCC 519 [
LNIND 2006 SC 7 ].

AIR 2007 AP 137 [
LNIND 2006 AP 1359 ] (140) : (
2007 AIHC 321 NOC :
(2007) 4 Andh LT 260 [
LNIND 2006 AP 1359 ].
Page 54 of 81
S.3(A)

AIR 2007 AP 137 [
LNIND 2006 AP 1359 ] (140) : (
2007 AIHC 321 NOC :
(2007) 4 Andh LT 260 [
LNIND 2006 AP 1359 ].
60 Chikkanan v. A.R. Perumal ,

AIR 2005 NOC 43 : (2004) 3 Mad LJ 662 (Mad).
61 Dhruba v. Paramananda ,
AIR 1983 Ori 24 [
LNIND 1982 ORI 4 ] (26) : (1982) 54 CUTLT 560; see also Umarao v. Bakshi Gopal
Bux , AIR
1957 Raj 180 : ILR
(1955) 5 Raj 971 :
1956 Raj LW 534 .

SC 1147 (1153) : 1969 (3) SCR 513; See also Sakharam Shrinivas v. Sushilalbal ,
AIR 1953 Nag 339 : 1953 Nag LJ 425.
63 Eziekiel and Company v. Annoda Charan Sen ,

AIR 1923 Cal 35 ; see also Har Kaur v. Gaura Singh , AIR 1988 P&H 41 (42).
64 Har Kaur v. Gaura Singh , AIR 1988 P&H 41 (42).
65 R. Sudhakar Reddy v. Government of A.P. ,

AIR 2005 NOC 553 : (2005) 1 Andh LT 797 (AP).
66 Ideal Bank Ltd. v. Pride of India Pictures ,

AIR 1983 Del 546 [
LNIND 1983 DEL 26 ] (550).
67 Suraj Lamp & Industries (P) Ltd. v. State of Haryana, AIR

2009
SC 3077 (3080) :
(2009) 7 SCC 363 [
LNINDORD 2009 SC 574 ] : 2009 AIRSCW 4944 :
2009 (9) SCALE 36 [
LNINDORD 2009 SC 574 ].
68 Nawal Singh v. Panchiya , Ram

AIR 1983 All 1 [
LNIND 1982 ALL 98 ] (4) :
(1982) 8 All LR 700 ; Ram Sagar Devi v. Most. Ghutru Devi @ Mahabati Devi ,
AIR 2008 Pat 187 .
69 Nawal Singh v. Panchiya Ram ,

AIR 1983 All 1 [
LNIND 1982 ALL 98 ] (4) : 1982 All WC 717.
Page 55 of 81
S.3(A)
70 Hobson v. Gorringe , (1897) 1 Ch. 182.
71 Wiltshear v. Cottrell,
(1853) 22 LJQB 177 : 118 ER 589.
72
(1866) 6 WR 228 .
73 Narayan Das v. Jatindra Nath ,

(1927) 54 Cal 669 : 54 IA 218; Sitabai v. Sambhu , (1914) 38 Bom 716.
74
(1866) 6 WR 228 .
75 (1901) 26 Bom 1.
76 Ismail Kani v. Nazarally , (1903) 27 Mad 211 ; Mofiz Shaikh v. Rasik Lal ,
(1910) 37 Cal 815 ; Narayana Sa v. Balaguruswami ,
AIR 1924 Mad 187 [
LNIND 1923 MAD 125 ].
77 CCE v. Solid & Correct Engg. Works,

(2010) 5 SCC 122 (130) :
(2010) 3 SCALE 598 .
78 Elliott v. Bishop , (1854) 10 Exch. 496 : 156 ER 534.
79 Hellawell v. Eastwood , (1851) 6 Exch. 295 : 155 ER 554.
80
(1902) AC 157 .
81 (1851) 6 Exch. 295 : 155 ER 554.
82 (1872) 7 C.P. 328.
83 (1923) 2 Ch. 74.
84 (1872) 7 C.P. 328, 334.
85 (1853) 1 E. & B. 674 : 118 ER 589.
86 (1866) LR Eq. 382.

Page 56 of 81
S.3(A)
87
(1903) 2 KB 135 .
88 Re. De Falbe, Ward v. Taylor , (1901) 1 Ch. 523.
89
(1904) AC 466 .
90 (1872) 6 Exch. 295 : 155 ER 554.
91
(1874) 32 LT 486 .
92 (1886) 18 QBD. 81.
93
(1883) 8 AC 195 .
94
(1902) AC 157 .
95 (1845) 12 Cl. & F. 312 : 8 ER 1426.
96
(1904) AC 466 .
97 DeEyncourt v. Gregory ,
(1866) LR 3 Eq. 382.
1 Bishop v. Elliott , (1855) 11 Exch. 113 : 156 ER 766; Climic v. Wood ,

(1869) LR 4 Exch. 328.
2 Leach v. Thomas , (1835) 7 C. & P. 327.
3 R. v. Lee (Inhabitants),
(1866) 1 QB 241 .
4 Provincial Bill Posting Co. v. Law Moor Iron Co .,

(1909) 2 KB 344 .
5 Metropolitan Counties, etc. Society v. Brown , (1859) 26 Beav. 454.
6 Simpson v. Hartoff , (1744), Willes 512 : 125 ER 1295.

Page 57 of 81
S.3(A)
7 Jenkins v. Gething , (1862) 2 John. & H. 520, 70 ER 1165.
8 Elwes v. Maw , (1802) 3 East 38, 102 ER 510; Gibson v. Hammersmith and City Railway
Co. , (1863) 32 LJ Ch. 337, 62 ER 748; Climie v. Wood , (1869) 4 Exch. 328.
9 Whitchead v. Bennett , (1858) 27 LJ Ch. 474; Wake v. Hall , (1880) 7 QBD. 295; Pole-
Carew v. Western Counties and General Manure Co. , (1920) 2 Ch. 97.
10 Dudley (Lord) v. Warde (Lord) , (1751) Amb. 113 : 27 ER 73.
11 Lawton v. Lawton , (1743) 3 Atk. 13 : 26 ER 811.
12 Dean v. Allaley , (1799) 3 Esp. 11 N.P.
13 Climie v. Wood , (1869) 4 Exch. 328.
14 Jenkins v. Gething , (1862) 2 John & H. 520 : 70 ER 1165.
15 Thresher v. East London Water Works Co. , (1824) 2 B&C 608 : 107 ER 510.
16 Elwes v. Maw , (1802) 3 East 38 : 102 ER 510.
17 Grymes v. Boweren , (1830) 6 Bing. 437 : 130 ER 1349.
18 Lyon & Co. v. London City and Midland Bank,

(1903) 2 KB 135 ; Vaudeville Electric Cinema Ltd. v. Muriset, (1923) 2 Ch. 74
contra.
19 Lewell v. Angerstein,
(1868) 18 LT 300 .
20 British Economical Lamp Co. Ltd. v. Empire Mile End Ltd.,

(1913) 29 TLR 386 .
21 Peru Bepari v. Ronuo Maifarash ,

(1885) 11 Cal 164 ; Purushottama v. Municipal Council of Bellary , (1891) 14 Mad
467 ; Krishnasami v. Venkatarama , (1890) 13 Mad 319.
22 Deno Nath v. Adhor Chunder ,

(1900) 4 CWN 470 .
23 Punnayya v. Venkatappa ,
AIR 1926 Mad 343 .
Page 58 of 81
S.3(A)
24 Amratlal v. Keshavlal ,
(1926) 28 Bom LR 939 .
25 Meghraj v. Krishna ,
(1924) 46 All 286 .
26 L.T. Commissioner v. Bhurangiya Coal Co. ,

AIR 1953 Pat 298 (300) (DB) : 24 ITR 306.
27 South Indian Bank Ltd. v. V.K. Chettiar & Bros

,
AIR 1976 Mad 215 [
LNIND 1974 MAD 341 ] (220) :
(1975) 2 MLJ 431 [
LNIND 1974 MAD 341 ] ; J.H. Subhiah v. Gundrao ,
AIR 1953 Nag 224 (226) (DB) :
ILR 1953 Nag 488 : 1953 NLJ 104.
28 J.H. Subhiah v. Gundrao ,

AIR 1953 Nag 224 (226) (DB) :
ILR 1953 Nag 488 .
29 Narayana Sa v. Balaguruswami Nadar ,

AIR 1924 Mad 187 [
LNIND 1923 MAD 125 ].
30 Veerappa v. Ma Tin ,
AIR 1925 Rang. 250 .
31 Reynolds v. Ashby & Son,

(1904) AC 466 .
32 Hobson v. Gorringe , (1897) 1 Ch. 182.
33 R. v. Otley Suffolk (Inhabitants) , (1830) 1 B. & Ad. 161 : 109 ER 747.
34 Wandsborough v. Maton , (1836) 4 Ad. & El. 884 : 111 ER 1016; Wiltshear v. Cottrell,
(1853) 22 LJQB 177 : 118 ER 589.
35 Stedman v. Moore,
(1847) 10 LTOS 289 .
36 Chaturbhuj v. Bennett , (1905) 29 Bom 323.
37 Miller v. Brindabun ,
(1879) 4 Cal 946 .
38 Nathu Miah v. Nand Rani , (1872) 8 Beng LR 508.

Page 59 of 81
S.3(A)
39 Narayana Pillay v. Ramaswamy , (1875) 3 Mad HC 100.
40 (1866) 6 W.R. 228.
41 V.P. Fakrudheen Haji v. State Bank of India,

AIR 2009 Ker 78 [
LNIND 2008 KER 696 ] (83) (DB) :
2009 (1) KLT 322 [
LNIND 2008 KER 482 ].
42 Laxmidhar Behera v. Bansidhar Khatei ,

AIR 1989 Ori 182 [
LNIND 1988 ORI 115 ] (184).
43 Sunrise Associates v. Government of NCT of Delhi , AIR

2006 SC 1908 (1918):
(2006) 5 SCC 603 [
LNIND 2006 SC 324 ].

AIR 1989 Ori 182 [
LNIND 1988 ORI 115 ] (184); Mulji Deoji v. Union of India ,
AIR 1957 Nag 31 (44) : 1956 NLJ 791.
45 Amol v . Deorao, 2011 AIR CC 3164 (3183) (Bom).
46 Gurbachan Singh v. Rajinder , AIR 1976 P&H 336 (338) : 78 Pun LR 734.
47 Gurbachan Singh v. Rajinder , AIR 1976 P&H 336 (338) : 1976 Pun LJ 510.
48 Joseph Pyke & Sons v. Kedarnath ,

AIR 1959 Cal 328 [
LNIND 1958 CAL 146 ] (335) (DB); Trans Trust S.P.L.R. v. Danubian Trading Co.
Ltd,
(1952) 2 QB 297 .
49 Moti Lal v. Radhey Lal ,

(1933) 55 All 814 .
50 Amir Hasan v. Mahomed Nasir ,

(1932) 54 All 499 .
51 Shamdas v. Savitribai ,
AIR 1937 Sind. 181 ; Sunrise Associates v. Government of NCT of Delhi, 2006
SC 1908 (1909) :
(2006) 9 SCC 531 [
LNIND 2006 SC 323 ].
Page 60 of 81
S.3(A)
52 National Insurance Co. v. Haridas Bosu, (1927) 46 CLJ 225 ; Lee v. Ardy,
(1886) 17 QBD 309 ; Shamdas v. Savitribai , AIR 1937 Sind 181.
53 Official Trustees of Bengal v. Chippendale ,

AIR 1944 Cal 335 ; Money debt Ram Krishna Mohan Lal v. Gurdial Mal Sagar Mal ,
AIR 1941 Lah 337 ; Laxmidhar Behera v. Bansidhar Khateri ,
AIR 1989 Ori. 182 [
LNIND 1988 ORI 115 ] (184).
54 Nagappa v. Badridas ,
(1930) 32 Bom LR 894 .
55 Gulabchand v. Pathi Gundappa ,

(1934) MWN 577 .
56 Colonial Bank v. Whinney , (1885) 30 Ch. D. 261, 284; WILLIAMS on Personal Property ,
9th Ed., pp. 6, 20.
57 Indar v. Raghubir Singh ,

(1930) 5 Luck 547 .
58 Rameshwar Narayan Singh v. Rani Rennath Koeri ,

AIR 1923 Pat 165 .
59 Poothakka v. Annamalai ,
AIR 1926 Mad 1173 [
LNIND 1926 MAD 174 ].
60 Sheo Gobind v. Gouri Prasad , (1925) 4 Pat 43 ; Rameshwar Narayan Singh v. Rani
Rennath Koeri ,
AIR 1923 Pat 165 .
61 Madhabilata Devi v. Butto Kristo Roy ,

AIR 1944 Pat 129 ; Sunrise Associates v. Government of NCT of Delhi, 2006
SC 1908 (1909) :
(2006) 9 SCC 531 [
LNIND 2006 SC 323 ].

AIR 1989 Ori 182 [
LNIND 1988 ORI 115 ] (184); Shah Mulji Deoji, Firm v. Union of India ,
AIR 1957 Nag 31 ; Purna Chandra v. Barna Kumai Devi ,
AIR 1939 Cal 715 .
63 Jaffer Meher Ali v. Budge Budge Jute Mills Co. ,

(1907) 34 Cal 289 ; Kodusao v. Surajmal , (1935) 31 Nag LR (Supp.) 154.
64 Joint and United Hindu Family of K.V. Tiruvalur v. P.L.P.K.R.M. Chettyar , AIR 1927
Rang 39 ; Jai Narayan v. Kishun Dutta , (1924) 3 Pat 575.
Page 61 of 81
S.3(A)
65 Lalchand v. Hussainio , AIR 1927 Sind 78.
66 Thawerdas v. Vishnidas , AIR 1925 Sind 72.
67 Shrinath v. Kanhaiyalal ,
AIR 1924 Nag 145 .
68 The Commissioner of Income Tax, Andhra Pradesh, Hyderabad v. H.E.H. Mir Osman
Bahadur (died) H.E.H. Nawab Mir Barkat Ali Khan Bahadur Nizam of Hyderabad ,
AIR 1970 AP 397 [
LNIND 1969 AP 88 ] (DB), Rights and benefits under a contract of carriage. Mulji
Deoji v. Union of India,
AIR 1957 Nag 31 (44) : 1956 NLJ 791.
69 Rai Satindra Nath v. Rai Jatindra Nath,

(1935) 39 CWN 1191 PC.
70 Bhupati Mohan Das v. Phanindra Chandra, (1935) 62 CLJ 359 ; Sunrise Associates v. Government of
NCT of Delhi, 2006
SC 1908 (1909) :
(2006) 9 SCC 531 [
LNIND 2006 SC 323 ].
71 Manmatha Nath Mullick v. Sheik Hedait Ali , (1932) 11 Pat 266 : 59 IA 41.

AIR 1989 Ori 182 [
LNIND 1988 ORI 115 ] (185); State of Madhya Pradesh v. I. Ranjirao Shinde , AIR
1968 SC 1053 :
1968 (3) SLR 489 .
73 Amol v . Deorao, 2011 AIR CC 3164 (3183) (Bom) :

AIR 2011 (NOC) 215 . 74. Hirachand v. Nemchand , (1923) 47 Bom 719 ; Nakula v.
Kokaya ,
AIR 1923 Nag 67 ; Moti Lal v. Radhey Lal ,
(1933) 55 All 814 ; Powri v. Shiwa , (1935) 31 Nag LR 142.
75 Jai Narayan v. Kishun Dutt, (1924) 3 Pat 575. But see Joint and United Hindu Family of K.V. Tiruvalur v.
P.L.P.K.R.M. Chettyar,
AIR 1927 Rang. 39 .
76 Krishnaswami Naidu v. Karuppan Chettiar , (1928) 51 Mad 681 ; Govindarajulu v. Ranga

Rao , (1921) 40 M.LJ 124; Devkinandan v. State of M.P.,
2012 (110) AIC 341 (M.P.) :
2011 (4) MPLJ 633 .
77 Ghulam Shah v. Hakam Rai ,

AIR 1930 Lah 100 .
78 Kamal Narayan v. Shyamlal ,

AIR 1936 Nag 217 .
Page 62 of 81
S.3(A)
79 Tikam Singh v. Bhola Nath , (1937) A.LJ 518.
80 Jasraj v. Purushottamlal , AIR 1950 Nag (89) (90); Bharat Prashad v. Paras Singh ,
AIR 1964 All 15 [
LNIND 1963 ALL 84 ] (16). See also Shanmugha Mudaliar v. P.V. Tathina Mudaliar ,
AIR 1948 Mad 187 [
LNIND 1947 MAD 19 ]: (1947) 2 Mad LJ 241.
81 Charubala Dutta Roy v. Anantmayee Nag,

AIR 1963 Ass 11 (DB).
82 Jindal Drugs Ltd. v. State Maharashtra ,

2004 (1) Mah LJ 87 (94) (DB) (Bom).
83 R.D. Goyal v. Reliance Industries Ltd .,

(2003) 1 SCC 81 [
LNIND 2002 SC 717 ] (88):
(2002) 8 SCALE 488 [
LNIND 2002 SC 717 ].
84 Vikas Sales Corpn. v. Commr., Commercial Taxes, AIR 1996

SC 2082 (2089) :
(1996) 4 SCC 433 [
LNIND 1996 SC 2467 ].
85 Economic Transport Organization v. Charan Spinning Mills (P)

Ltd.,
(2010) 4 SCC 114 [
LNIND 2010 SC 183 ] :
(2010) 2 SCC (Civ) 42 :
(2010) 2 CTC 295 :
(2010) 2 CHN 119 :
(2010) 88 AIC 177 : (2010) 3 All LJ 281 :
[2010] 2 SCR 887 [
LNIND 2010 SC 183 ] :
JT 2010 (2) SC 271 [
LNIND 2010 SC 183 ]:
2010 (2) SCALE 427 [
LNIND 2010 SC 183 ].
86 Subramanian v. Arunachalam , (1902) 25 Mad 603, 29 IA 138; Venkata Gurunadha v.

Kesava Ramiah , (1926) 50 M.LJ 54.
87 Powri v. Shiwa , (1935) 31 Nag LR 142; Moti Lal v. Radhey Lal ,

(1933) 55 All 814 .
88 Ram Das v. Dwarka Das ,

AIR 1930 All 875 ; Jat Mal v. Hakim Mal ,
AIR 1930 Lah 820 .
89 Mathu v. Achu , (1934) 57 Mad 1074.

Page 63 of 81
S.3(A)
90 Rwo v. Dawson , (1749) 1 Ves. 331; Prosser v. Edwards , (1835) 1 Y. & C. 481.
91 Brandts v. Dunlop Rubber Co.,

(1905) AC 454 .
92 Rama Iyer v. Venkatachellam , (1906) 30 Mad 75.
93 Kisen Gopal v. Bavin ,

AIR 1926 Cal 447 .
1 Firm Nanak Chand v. Firm Ram Sarup,

AIR 1924 Lah 684 .
2 Thakar Das Bhatia v. Malik Chand , (1933) 14 Lah 325.
3 Watson v. Wellington (Duke) , (1830) 1 Russ & M. 602 : 39 ER 231.
4 Diplock v. Hammond , (1854) 23 LJ Ch. 550, 43 ER 893; Fisher v. Calvert ,

(1879) 27 WR 301 ; Greenway v. Atkinson ,
(1881) 29 WR 560 .
5 Hopkinson v. Forster ,
(1874) 22 WR 301 .
6 Morgan v. Lariviere,
(1875) 7 HL 423 .
7 Griffin v. Griffin , (1899) 1 Ch. 408; see Sethna v. Hemingway , (1914) 38 Bom 618.
8 Brice v. Bannister , (1878) 3 QBD. 569; Skipper and Tucker v. Holloway and Howard,
(1910) 2 KB 630 .
9 Re. Steel Wing Co. Ltd. , (1921) 1 Ch. 349.
10 Forster v. Baker,
(1910) 2 KB 636 .
11 Raja of Ramnad v. Subramaniam Chettiar , (1929) 52 Mad 465.
12 Doraiswamy Mudaliar v. Doraiswamy Iyangar,

(1925) 48 MLJ 432 [
LNIND 1924 MAD 354 ].
13 Ghisulal v. Gumbhirmall ,
(1935) 39 CWN 606 .
Page 64 of 81
S.3(A)
14 Jaffer Meher Ali v. Budge Budge Mills Co. ,

(1906) 34 Cal 28 ; Kodusao v. Surajmal , (1935) 31 Nag LR (Supp.) 154; Hunsraj v.
Nathoo ,
(1907) 9 Bom LR 838 .
15 Manchester Brewery Co. v. Coombs , (1901) 2 Ch. 608.
16 Torkington v. Magee,
(1902) 2 KB 427 .
17 Munuswami Naidu v. Sagaloguna Nayudu , (1926) 49 Mad 387.
18 Sakalaguna Naidu v. Chinna Munuswami Nayakar , (1928) 51 Mad 533.
19 Desa v. Girdharilal Ghanshamdas , AIR 1932 Sind 128 ; Gobardhan v. Raghubir Singh ,
(1930) 28 ALJ 799 .
20 Lallu Singh v. Chandra Sen ,

(1934) 56 All 624 .
21 Gramophone Company of India Ltd. v. Shanti Films Corpn .,

AIR 1997 Cal 63 [
LNIND 1996 CAL 125 ] (79).
22 Lata Chauhan v. L.S. Bisht,

2010 (117) DRJ 715 (Delhi).
23 Motilal Jain v. Prakash Bhartiya ,

AIR 2007 (NOC) 377 (MP).
24 Cornwallis’s case , (1595) Toth 186, 21 ER 163; Wildgoose v. Wayland , (1601) Gouldsh
147, 75 ER 1056.
25 Lloyd v. Banks , (1868) 3 Ch. App. 488.
26 Barnhart v. Shields ,
(1853) LR 2 Eq. 1217.
27 Nagle v. Baylor , (1842) 3 De. & War. 60.
28 Syed Aziz v. Arifa Begum ,

AIR 1937 Oudh 1 .
29 Beioley v. Carier , (1869) 4 Ch. App. 230.

Page 65 of 81
S.3(A)
30 Barnhart v. Greenshields , (1853) 9 Moo. P.C. 80 : 40 ER 204.
31 Gobind Chunder v. Doorgapersad , (1874) 22 WR 248 : (1875) 14 Beng LR 337.
32 Fuller v. Benett , (1843) 2 Hare. 394 : 67 ER 162.
33 Nursing v. Roghoobur ,
(1884) 10 Cal 609 .
34 N. Kashinath (Dr.) v. Arun R. Rawell , 2008 (67) AIC (Summary) 7 : 2008

AIHC 2294 (2301) :
AIR 2008 (NOC) 1620 (Kant).
35 Jones v. Smith , (1841) 1 Hare 43 : 66 ER 943; Doorga Narain v. Baney Madhub ,

(1881) 7 Cal 199 ; Macneil & Co. v. Saroda Sundari ,
AIR 1929 Cal 83 ; Manji v. Hoorbai , (1911) 35 Bom 342.
36 (1851) 9 Hare 449.
37 Espin v. Pernbuton , (1859) 28 LJ Ch. 311 : 44 ER 1380; Cave v. Cave , (1880) 15 Ch.
D. 639.
38 Plumb v. Fluitt , (1791) 2 Anst 432 : 145 ER 926.
39 Warrick v. Warrick , (1745) 3 Atk. 291 : 26 ER 970; Bulpett v. Sturges,

(1870) 22 LT 739 ; Meyer v. Charters , (1918) 34 LTR. 589.
40 Wyllie v. Pollen , (1863) 32 LJ Ch. 782 : 46 ER 767; Knight v. Bowyer , (1858) 27 LJ Ch.
520 : 44 ER 1053; Ware v. Egmont (Lord) , (1854) 24 LJ Ch. 361 : 43 ER 586.
41 Parthasarathy v. Subbaraya, (1924) AIR Mad 67 ; Manji v. Hoorbai , (1911) 35 Bom 342 ;
Hunter v. Walters , (1901) 1 Ch. 428.
42 The Bank of Bombay v. Fazulbhoy ,

(1922) 24 Bom LR 513 [
43 The Birnam Wood , (1907) P. 1.
44 Manchester Trust v. Furness,

(1895) 2 QB 539 ; The Draupner , (1909) P. 219; Lloyds Bank Ltd. v. Swiss
Bankverin,
(1913) 108 LT 143 .
Page 66 of 81
S.3(A)
45 Miles v. Tobin,
(1867) 17 LT 432 ; Ramji v. Municipal Board ,
AIR 1937 Oudh 31 .
46 (1879) 11 Ch. D. 790.
47
(1867) 17 LT 432 .
48
(1867) 17 LT 432 .
49 Allen v. Seckham , (1879) 11 Ch. D. 790; Chaturbhuj v. Man Sukhtam ,

(1925) 27 Bom LR 73 .
50 Macbryde v. Eykyn,
(1871) 25 LT 192 .
51 Kalyani v. Krishnan , (1932) 55 Mad 519.
52 Chanduram v. Municipal Commissioners ,

AIR 1951 Cal 398 (400) (DB) : 1951 Bh LR Cal 117.
53 Chanduram v. Municipal Commissioners ,

AIR 1951 Cal 398 (400) (DB) : 1951 Bh LR Cal 117.
54 Parvathatammal v. Sivasankara ,
AIR 1952 Mad 265 [
LNIND 1951 MAD 20 ] (266) :
(1951) 2 MLJ 191 [
55 Mohideen Sahib v. A. Amena Bi ,

AIR 2007 Mad 133 [
LNIND 2006 MAD 3061 ] (136) :
2007 AIHC 342 NOC.
56 Durga Charan Panda v. Jairam Panda ,

AIR 1983 NOC 143 (Ori).
57 N. Kashinath (Dr.) v. Arun R. Rawell , 2008 (67) AIC (Summary) 7 : 2008

AIHC 2294 (2301) :
AIR 2008 (NOC) 1620 (Kant).
58 Mam Chand v. Chandrawati ,

AIR 1979 NOC 192 (All).
Page 67 of 81
S.3(A)
59 Murali Dhar Marwari v. Lalit Mohan Sahu ,

AIR 1962 Ori 86 [
LNIND 1961 ORI 47 ] (
AIR 1952 Ori 163 relied on ).
60 Ahmedabad Municipality v. Haji Abdul , AIR 1971

SC 1201 (1208) :
(1971) 1 SCC 757 [
LNIND 1971 SC 183 ] ; Nawal Kishore v. Municipal Agra ,
ILR (1943) All 453 :
AIR 1943 All 115 (FB) : 2951 C 539.
61 Ramchandra v. Jairam , (1898) 22 Bom 686.
62 Dhondo v. Raoji , (1896) 20 Bom 290.
63 Peto v. Hammond , (1861) 31 LJ Ch. 354, 54 ER 981; Morland v. Cook ,

(1868) LR 6 Eq. 252; Oliver v. Hinton , (1899) 2 Ch. 264; Rajaram v. Krishnasami ,
(1893) 16 Mad 301 ; Bank of Bombay v. Suleman Somji , (1909) 33 Bom 1 : 35 IA 139.
64 Hooper v. Bromet,
(1903) 89 LT 37 varied in
(1904) 90 LT 234 .
65 Leigh v. Lloyd , (1865) 34 LJ Ch. 646 : 46 ER 403.
66 Plumb v. Fluitt , (1791) 2 Anst. 432 : 145 ER 926.
67 Prosser v. Watts , (1821) 6 Mad 59 : 56 ER 1012.
68 Farrow v. Rees , (1840) 4 Beav. 18 : 49 ER 243.
69 Davies v. Thomas , (1836) 7 LJ Exch. Eq. 21 : 160 ER 383; Jones v. Smith , (1841) 1
Hare 43, 66 ER 943.
70 Hope v. Liddell , (1855) 25 LJ Ch. 90 : 52 ER 829.
71 Taylor v. Stibbert , (1794) 2 Ves. 437 : 30 ER 713; Hiern v. Mill , (1806) 13 Ves. 114;
Lewis v. Stephenson,
(1898) 67 LJQB 296 .
72 Lewis v. Bond , (1853) 18 Beav. 85 : 52 EP 34.
73 Wilbraham v. Livesey , (1854) 18 Beav. 206 : 52 ER 81; Parker v. Whyte , (1863) 32 LJ

Ch. 520, 71 ER 73; Reeve v. Berridge , (1888) 20 QBD. 523; Re. White and Smith’s Contract , (1896) 1 Ch. 637;
Melzak v. Lilienfeld , (1926) 1 Ch. 480.
Page 68 of 81
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74 Re. White and Smith’s Contract , (1896) 1 Ch. 637; Hone v. Gakstatter , (1909) 53 Sol.
Jo. 288.
75 Hyde v. Warden , (1877) 3 Exch. D. 72.
76 (1881) 17 Ch. D. 353.
77 (1841) 1 Hare 43 : 66 ER 943.
78 Ramcoomar Koondoo v. John and Maria McQueen , (1873) 11 Beng LR 46; Nursingh v.
Raghobar ,
(1883) 10 Cal 609 ; Jolland v. Stainbridge , (1797) 3 Ves. 478 : 30 ER 1114.
79 Imperial Bank of India v. U. Rai Gynw Thu & Co. Ltd.,

(1924) 51 Cal 86 : 50 IA 283; Kshetra Nath v. Harasukdas ,
AIR 1927 Cal 538 .
80 Milness v. Duncan , (1827) 2 B&C 671 : 108 ER 598; Balakrishna v. Bhawanipur Banking
Corporation Ltd. ,
(1932) 59 Cal 662 ; Hamiduddin v. Ramani ,
AIR 1933 Cal 321 .
81 Broadbent v. Barlow , (1861) 30 LJ Ch. 569 : 45 ER 999.
82 Berwick & Co. v. Price , (1905) 1 Ch. 632.
83
(1874) LR 7 HL 135; Lee v. Chilton , (1876) 46 LJ Ch. 48; Northern Counties of
England Fire Insurance v. Whipp , (1884) 26 Ch. D. 482.
84 Doorga Narain Sen v. Baney Madhub Mozoomdar ,

(1881) 7 Cal 199 .
85 Joshua v. Alliance Bank of Simla ,

(1895) 22 Cal 185 (203); Kausalal Ammal v. Sankara Muthiah Pillai ,
AIR 1941 Mad 707 [
LNIND 1940 MAD 429 ]; N. Kashinath (Dr.) v. Arun R. Rawell , 2008 (67) AIC
(Summary) 7 : 2008
AIHC 2294 (2301) :
AIR 2008 (NOC) 1620 (Kant).
86 Kausalal Ammal v. Sankara Muthiah Pillai ,

AIR 1941 Mad 707 [
LNIND 1940 MAD 429 ]) : 1941 Mad LJ 815 : 53 Mad LW 744.
87 Jones v. Williams , (1857) 24 Beav. 47 : 53 ER 274.
88 Gainsborough (Earl) v. Watcombe Terra Cotta Clay Co. Ltd ., (1885) 54 LJ Ch. 991.
Page 69 of 81
S.3(A)
89 B. Suresh Chand v. State of Tamil Nadu , 2006 (4) Mad LJ 850 (851) :
2006 (4) Mad LW 409 (FB) (Mad); Lata Chauhan v. L.S. Bisht ,
2010 (117) DRJ 715 (Del).
90 Radha Rai v. Ram Rekha Rai ,

AIR 1964 Pat 144 (DB).
91 Harilal v. Mulchand , (1928) 52 Bom 883.
92 Hunt v. Luck , (1902) 1 Ch. 428.
93 Hormasji Temulji v. Mankuvarbai , (1875) 12 Bom HCR 262; Morgan v. The Government
of Haiderabad , (1888) 11 Mad 419.
94 Hunter v. Walters , (1871) 7 Ch. App. 75.
95 Bepin Krishna v. Priya Brata ,

(1921) 26 CWN 36 .
96 (1804) 2 Sch. & Lef. 315.
97 (1855) 4 Ir. Ch. Rep. 399.
98 Bailey v. Barnes , (1894) 1 Ch. 25 (35).
1 Mettu Pentaiah v. P. Veeraiah ,

AIR 2007 AP 284 [
LNIND 2007 AP 340 ] (285) :
(2007) 4 Andh LT 722 [
LNIND 2007 AP 340 ] (DB).
2 Kuldip Singh v. State ,

AIR 1954 Punj 31 (32, 33) (DB) :
ILR 1954 Punj 691 : 55 Punj LR 431.
3 Kuldip Singh v. State ,

AIR 1954 Punj 31 (33) (DB) :
ILR 1954 Punj 691 : 55 Punj LR 431.
4 C. Yemuna v. P. Manohara ,
AIR 2004 AP 317 [
LNIND 2004 AP 248 ] (319) :
(2004) 4 Andh LT 169 .
Page 70 of 81
S.3(A)
5 Damodara v. Somasundara , (1889) 12 Mad 429 ; Madras Building Co. v. Rowlandson ,

(1890) 13 Mad 383 ; Shan Maun Mull v. Madras Building Co. , (1892) 15 Mad 268 ; Rangasami v. Annamalai , (1908)
31 Mad 7.
6 Kasturi v. Baliram ,
AIR 1923 Nag 15 .
7 Punjab Banking Co. Ltd. v. Muhammad Hassan , (1925) 6 Lah 344.
8 Waji-hun-nissa v. Valmiki ,
AIR 1924 Pat 359 .
9 Aung Kaing v. Maung San , AIR 1923 Rang 41.
10 Lakshmandas v. Dasrat , (1882) 6 Bom 168 ; Dundaya v. Chenbasapa , (1885) 9 Bom

427 ; Chintaman v. Dareppa , (1890) 14 Bom 506 ; Narayan v. Bapu , (1893) 17 Bom 741 ; Dina v. Nathu , (1902) 26
Bom 538 ; Mahomed v. Bai Cooverbai ,
(1904) 6 Bom LR 1043 ; Tatyarao v. Puttappa ,
(1910) 12 Bom LR 940 [
11 Gordhandas v. Mohanlal , (1921) 45 Bom 170.
12 Ashiq Husain v. Chatarbhuj ,

(1928) 50 All 328 ; Janki Prasad v. Kishen Dat ,
(1894) 16 All 478 .

(1895) 22 Cal 185 ; Inderdawan v. Gobind ,
(1896) 23 Cal 790 ; Preonath v. Ashutosh ,
(1900) 27 Cal 358 ; Nanda Lal v. Abdul Aziz ,
(1916) 43 Cal 1052 .
14 Magniram v. Mehdi Hossein ,

(1904) 31 Cal 95 (102).
15 Manindra v. Troylukho ,
(1898) 2 CWN 750 ; Bunvari v. Ramjee ,
(1902) 7 CWN 11 .
16 Tilakdhari Lal v. Khedan Lal ,

(1921) 48 Cal 1 : 47 IA 239.
17 A.L.R.M. Firm v. L.P.R. Chettiar Firm,

AIR 1926 Rang. 195 ; Gunabai v. Motilal ,
AIR 1925 Nag 398 ; Parbhu Lal v. Chattar ,
AIR 1925 All 557 ; Kali Din v. Madho ,
AIR 1923 All 169 ; Gulam Muhammad v. Mirza ,
AIR 1925 Lah 25 ; Jhand Singh v. Harnam Singh ,
AIR 1926 Lah 415 ; Begraj v. Alisher , AIR 1923 Sind 50 ; Maung Hlaw v. M.N.S.
Chettyar Firm ,
Page 71 of 81
S.3(A)
AIR 1933 Rang. 153 ; Nasir Khan v. Tara Chand ,

AIR 1927 All 357 ; Ashiq Husain v. Chaturbhuj ,
AIR 1928 All 159 ; Pran Dei v. Sat Deo Tiwari ,
AIR 1929 All 85 .
18 Kenchegowda v. Chianniya ,
AIR 1953 Mys 22 : ILR 1953 Mys 152 : 32 Mys LJ 123.
19 Teja Singh v. Hawer Singh ,

AIR 1952 Pepsu 31 (33).
20 Sushma Kishandev Kaushal v. Council for Tibetan Education ,

AIR 2006 HP 122 [
LNIND 2006 HP 29 ] (127) : 2006 (2) Shim LC 184.
21 Kausal Chand Bhagchand v. Trumbak ,

AIR 1947 Bom 49 ).
22 Annapurna v. Munshi ,
AIR 1967 All 531 [
LNIND 1966 ALL 145 ]:
1967 ALJ 315 .
23 Ashrafi Devi v. Prem Chand ,

AIR 1971 All 457 (464, 465).
24 Dinkar v. Ganpat ,
AIR 1981 Bom 190 [
LNIND 1980 BOM 145 ] (202) :
1981 Bom CR 431 [
LNIND 1980 BOM 145 ] ; Jai Singh Rais v. Harnam Das ,
AIR 1964 All 381 [
LNIND 1963 ALL 172 ] (383) (DB) (Para 7 ). (Entry about mortgage in the
Ragistrar’s office, notice of encumbrance imputed to the purchaser).
AIR 1981 Bom 190 [
LNIND 1980 BOM 145 ] (202) :
1981 Bom CR 431 [
LNIND 1980 BOM 145 ].
AIR 1981 Bom 190 [
LNIND 1980 BOM 145 ] (202) :
1981 Bom CR 431 [
LNIND 1980 BOM 145 ].
27 Janardhanam Prasad v. Ramdas,

(2007) 15 SCC 174 [
LNIND 2007 SC 119 ] :
JT 2007 (3) SC 187 [
LNIND 2007 SC 119 ]:
2007 (2) SCALE 442 [
Page 72 of 81
S.3(A)
LNIND 2007 SC 119 ] :

[2007] 2 SCR 151 [
LNIND 2007 SC 119 ].
28 Suthara v. Samsu Nisha , 1997

AIHC 1751 (1756) (Pat).
29 Rajo Keur v. Brij Behari Prasad ,

AIR 1962 Pat 236 (DB). (
AIR 1936 Lah 482 relied on ).
30 Annapurna v. Munshi ,
AIR 1967 All 531 [
LNIND 1966 ALL 145 ]:
1967 ALJ 315 .
31 Bhimraj Bansidhar v. I.T. Commr. ,

AIR 1955 Pat 172 (DB) : 26 ITR 185.
32 Rajaram v. Krishnasami , (1893) 16 Mad 301 ; Patman v. Harland , (1881) 17 Ch. D. 353.
33 Sharfudin v. Govind , (1903) 27 Bom 452 ; Chunilal v. Ramchandra , (1898) 22 Bom 213.
34 Sahadev Ravji v. Shekh Papa Miya , (1905) 29 Bom 199.

(1921) 48 Cal 1 : 47 IA 239; Ashiq Husain v. Chatarbhuj ,
(1928) 50 All 328 ; Ram Narain v. Bandi Pershad ,
(1904) 31 Cal 737 .
36 Ram Lal v. Shiama Lal ,

AIR 1931 All 275 .
37 Harilal v. Mulchand , (1928) 52 Bom 883.
38 24 Parganas Lawyer’s Clerk Association v. State,

AIR 1986 Cal 205 [
LNIND 1984 CAL 108 ] (212).
39 Indra Bibi v. Jain Sirdar ,

(1908) 35 Cal 845 ; Narasamma v. Subbarayudu , (1895) 18 Mad 364 ; Najibulla v.
Nusir Mistri ,
(1881) 7 Cal 196 .
40 K.V. Galliara v. U. Thet ,

AIR 1929 Rang. 117 .
Page 73 of 81
S.3(A)
41 Parasharam v. Rama , (1910) 34 Bom 202 ; Subbalakshmi v. Narasimiah , (1927) 52

M.LJ 482; Gordhandas v. Mohanlal , (1921) 45 Bom 170.
42 Ma Paw May v. S.R.M.M.A. Chettyar Firm , (1929) 7 Rang. 624, 56 IA 379; Sarada Nath
v. Gobinda Chandra ,
(1919) 23 CWN 534 .
43 Mettu Pentaiah v. P. Veeraiah ,

AIR 2007 AP 284 [
LNIND 2007 AP 340 ] (286) :
(2007) 4 Andh LT 722 [
LNIND 2007 AP 340 ] (DB).
44 (1809) 16 Ves. 249, 33 ER 978.
45 (1841) 1 Hare 43, 66 ER 943.
46 See S.
Section 110, Indian Evidence Act, 1872 .
47 (1889) 9 Moo. (PC) 18.
48 (1869) 6 Bom HC (O.C.T.) 59.
49 (1809) 16 Ves. 249, 33 ER 978.
50 (1902) 27 Bom 452.
51 Lakshmandas v. Dasrat , (1880) 6 Bom 168 ; Dundava v. Chenbasappa , (1883) 9 Bom

427 ; Waman v. Dhondiba , (1879) 4 Bom 126 ; Sobhagchand v. Bhaichand , (1882) 6 Bom 193 ; Balaram v. Appa ,
(1872) 9 Bom HCR. 121; Mancharji v. Kongscoo , (1869) 6 Bom HCR. 59; Nagesh v. Balvantrav , (1872) 9 Bom HCR.
151; Manmal v. Dashrath , (1872) 9 Bom HCR. 147; Moreshwar v. Balkrishna v. Dattu , (1888) 12 Bom 569 ; Shivram
v. Genu , (1882) 6 Bom 515 ; Hathising v. Kuvarji , (1885) 10 Bom 105 ; Sharafudin v. Govind , (1903) 27 Bom 453 ;
Kondiba v. Nana , (1903) 27 Bom 408 ; Faki Ibrahim v. Faki Gulam , (1921) 45 Bom 910 ; Manji v. Hoorbai , (1911) 35
Bom 342.
52 Balchand v. Balaki ,
AIR 1929 Pat 284 .
53 Baburam v. Madhab Chandra ,

(1930) 40 Cal 565 ; Tiloke Chand v. Beattie & Co. ,
AIR 1926 Cal 204 ; Magu Brahma v. Bholi Das ,
(1913) 18 CWN 657 ; Jugul Kishore v. Kartic Chunder ,
(1894) 21 Cal 116 ; Denonath Ghose v. Auluck Moni ,
(1881) 7 Cal 753 .
54 Gunamoni v. Bassant Kumari ,

(1889) 16 Cal 414 ; Nani Bibee v. Hafizullah ,
Page 74 of 81
S.3(A)
(1884) 10 Cal 1073 ; Narain v. Dataram ,

(1882) 8 Cal 597 .
55 Bhikhi Rai v. Udit Narain ,

(1903) 25 All 366 ; Ram Autar v. Dhanauri ,
(1886) 8 All 540 .
56 Krishnamma v. Suranna , (1893) 16 Mad 148.
57 Parthasarathy v. Subbaraya ,
AIR 1924 Mad 67 [
LNIND 1923 MAD 13 ]; Baba Sah v. Hajee Mohamad ,
AIR 1923 Mad 563 [
LNIND 1923 MAD 3 ].
58 Kalyani v. Krishnan , (1932) 55 Mad 519.
59 Ram Niwas v. Bano , AIR

2000 SC 2921 :
(2000) 6 SCC 685 [
LNIND 2000 SC 1033 ] (689).
60 Yella Reddi v. Subbi Reddi ,

AIR 1955 Andhra 20 .
61 Gyaneshwar v. Smt. Moongabai @ Muneshwaribai ,

2006 (2) Jab LJ 170 (176) (MP).
62 M.K. Lingarkar v. S.B. Kesarkar ,

AIR 1972 Bom 100 [
LNIND 1970 BOM 55 ] (103).
63 M.K. Lingarkar v. S.B. Kesarkar ,

AIR 1972 Bom 100 [
LNIND 1970 BOM 55 ] (103); Ramkrishna v. Mahadei ,
AIR 1965 Pat 467 : 1965 BLJR 243.
64
(1913) ILR 40 Cal 565.
65 Abdul Mazid v. Burhanuddin Ahmed ,

AIR 1980 Gau 44 (55).
66 Abdul Mazid v. Burhanuddin Ahmed ,

AIR 1980 Gau 44 (55).
67 Sujata Sanzgiry v. Ankush R. Naik ,

AIR 2005 Bom 404 [
LNIND 2005 GOA 141 ] (408):
Page 75 of 81
S.3(A)
(2006) 2 Bom CR 179 [

LNIND 2005 GOA 141 ].
68 R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab,

(2000) 6 SCC 402 (410, 411)
69 H.N. Narayanaswamy v. Deveeramma ,

AIR 1981 Kant. 93 [
LNIND 1980 KANT 238 ] (95) :
(1981) 1 Kant LJ 259 .
70 Ram Bilas v. Muni , AIR 1978

SC 1094 (1095) :
(1979) 1 SCC 31 [
LNIND 1978 SC 528 ] ).
71 Mt. Rajo Keur v. Brij Behari Prasad ,

AIR 1962 Pat 236 (DB).
72 Murlidhar Bapuji Valve v. Yallappa Lalu Chaugule, AIR 1994 Bom (358) (369).
73 Harakchand v. Sohanraj , AIR

1990 Raj 109 (111).
74 Ram Niwas v. Bano , AIR 2000

SC 2921 (2924) :
(2000) 6 SCC 685 [
LNIND 2000 SC 1033 ] :
(2000-I) Punj LR 428) ; Bhagwan B. Kedari v. Dwarkanath K. Bagare ,
AIR 2005 Kant 108 [
LNIND 2004 KANT 529 ] (113):
(2005) 1 Kar LJ 625 .
75 Bhagwan B. Kedari v. Dwarkanath K. Bagree ,

AIR 2005 Kant 108 [
LNIND 2004 KANT 529 ] (111):
(2005) 1 Kar LJ 625 .
76 AIR
2001 SC 1658 :
(2000) 6 SCC 402 .
77 Bhagwan B. Kedari v. Dwarkanath K. Bagare ,

AIR 2005 Kant 108 [
LNIND 2004 KANT 529 ] (113):
(2005) 1 Kar LJ 625 .
78 Balasubramaniam v. Vijaya ,
2005 (4) Mad LW 293 (296, 297) (Mad).
Page 76 of 81
S.3(A)
79 Bhagwan B. Kedari v. Dwarkanath K. Bagare,

AIR 2005 Kant 108 [
LNIND 2004 KANT 529 ] (113).
80 Harakchand v. Sohanraj , AIR

1990 Raj 109 (111).
81 Chunilal v. Ramchandra , (1898) 22 Bom 213 ; Moreshwar v. Dattu , (1888) 12 Bom 569.
82 Srinath v. Kali Bhawani Prasad ,

AIR 1972 Pat 138 (140) (DB).
83 Haroon v. Meherali , AIR 1927 Sind 24 ; Kanhaya Lal v. Devi Das ,

AIR 1927 Lah 227 .
84 Raja Rampal Singh v. Balbahaddar Singh ,

(1904) 24 All 1 : 29 IA 203.
85 Mohori Bibee v. Dhurmodas Ghose ,

(1903) 30 Cal 539 : 30 IA 114 (121).
86 Wyllie v. Pollen , (1863) 32 LJ Ch. 782 : 46 ER 767.
87 (1859) 3 De G. & J. 547 : 44 ER 1380.
88 Dixon v. Winch , (1900) 1 Ch. 736.
89 In re The Alms Corn Charity , (1901) 2 Ch. 750; Jones v. Smith , (1841) 24 Beav. 62 : 66
ER 943; Jones v. William , (1857) 24 Beav. 47 : 53 ER 274.
90 Rolland v. Hart , (1871) 6 Ch. 678; Bradley v. Riches , (1878) 9 Ch. D. 189; Le Neve v.
Le Neve , (1747) 3 Atk. 646, 26 ER 1172; Berwick & Co. v. Price , (1905) 1 Ch. 632.
91 Bradley v. Riches , (1878) 9 Ch. D. 189; Kettlewell v. Watson , (1882) 21 Ch. D. 685;
Bomsot v. Savage ,
(1866) LR 2 Eq. 134.
92 Sharpe v. Foy , (1868) 4 Ch. App. 35.
93 Worthington v. Morgan , (1849) 16 Sim. 547 : 60 ER 987; Maxfield v. Burton ,

(1873) LR 17 Eq. 15; Lloyd’s Banking Co. v. Jones , (1885) 29 Ch. D. 221.
94 Oliver v. Hinton , (1899) 2 Ch. 264.

Page 77 of 81
S.3(A)
95 Atterbury v. Wallis , (1856) 2 Jur. (N.S.) 343 : 44 ER 465; Oliver v. Hinton , (1899) 2 Ch.
264.
96 Chabildas Lalloobhai v. Dayal Mowji , (1907) 31 Bom 566 : 34 IA 179.
97 Texas Company v. Bombay Banking Company , (1920) 44 Bom 139 : 46 IA 250.
98 (1880) 15 Ch. D. 639.
99 (1904) 2 Ch. 608.
1 In re Cousins , (1886) 31 Ch. D. 671.
2 In re Hamshire Land Company, (1896) 2 Ch. 743.
3 Saffron Waldon Second Benefit Building Society v. Rayner , (1880) 14 Ch. D. 406.
4 Bhagwan Kaur v. Land Acquisition Collector, Ludhiana,

(2012-4) Punj LR 563 (566) (P&H).
5 Wells v. Smith,
(1914) 3 KB 722 .
6 Steed v. Whitaker , (1740) Barn. Ch. 220 : 27 ER 621.
7 Bolekow v. Fisher,
(1882) 10 QBD 161 .
8 Re. Croggan Ex-parte Carbis , (1834) 4 Deae & Ch. 354.
9 Gould v. Oliver , (1840) 2 Man. & G. 208 : 133 ER 723.
10 Kennedy v. Green , (1834) 3 My. & K. 699 : 40 ER 266.
11 Sharpe v. Foy , (1868) 4 Ch. App. 35.
12 Roland v. Hart , (1871) 6 Ch. App. 678.
13 Wells v. Smith,
(1914) 3 KB 722 .
14 Kennedy v. Green , (1834) 3 My. & K. 699 : 40 ER 266; Kettlewell v. Watson , (1882) 21
Ch. D. 685.
Page 78 of 81
S.3(A)
15 Dresser v. Norwood, (1864) 34 LJCP 48 : 144 ER 188.
16 National Bolivian Navigation Co. v. Wilson,

(1880) 5 AC 176 (209).
17 National Bolivian Navigation Co. v. Wilson,

(1880) 5 AC 176 (209).
18 Dryden v. Frost , (1837) 8 LJ Ch. 235 : 40 ER 1084.
19 (1882) 21 Ch. D. 685.
20 (1834) 3 My. & K. 699 : 40 ER 266.
21 Toulmin v. Steere , (1817) 3 Mer. 210 : 36 ER 81; Jones v. Frost ,

(1872) 20 WR 793 .
22 Hirachand Himat Lal v. Kashinath Thakurji , AIR 1942 Bom (339) :

(1942) 44 Bom LR 227 .
23 Rimmer v. Webster , (1902) 2 Ch. 163; Swan v. North British Australasian Co. , Ltd. ,
(1863) 2 H. & C. 175.
24 West v. Reid , (1843) 2 Hare 249 : 67 ER 104.
25 Henderson v. Comptoir D’Escomple ,

(1873) LR 5 PC 253.
26 Wilson v. Brett , (1843) 11 M&W 113 : 152 ER 757.
27 (1854) 4 D. M. & G. 460 : 43 ER 586; Re New Chile Gold Mining Co.,

(1892) 68 LT 15 .
28 (1841) 8 M&W 443 : 151 ER 1113.
29
(1864) 11 LT 184 : 159 ER 560.
30 Grill v. General Iron Screw Colliery Co., (1866) 35 LJCP 321 (330); Blyth v. Birmingham
Water Works Co. , (1856) 25 LJ Ex. 212 : 156 ER 1047.
31 Le Lievre v. Gould,
(1893) 1 QBD 491 . 32. (1899) 2 Ch. 392 (435).
Page 79 of 81
S.3(A)
33
(1869) LR 2 PC 317 (336) : 16 ER 578.
34 (1703) 2 Ld. Raym. 909 : 92 ER 107.
35 (1894) 1 Ch. 25.
36 (1854) 4 D.M. & G. 460 : 43 ER 586.
37 (1841) 1 Hare 43 : 66 ER 943.
38 Hudston v. Viney , (1921) 1 Ch. 98.
39 (1884) 23 Ch. D. 482.
40
(1898) 2 CWN 750 .
41 (1801) 6 Ves. 174 : 31 ER 998.
42 (1826) 2 Russ. 193 : 38 ER 309.
43 (1840) 4 Beav. 18 : 49 ER 243.
44 (1899) 2 Ch. 264, 274.
45 Lloyds Bank Ltd. v. P.E. Gurdar & Co .,

(1929) 56 Cal 868 .
46 Chaturbhuj v. Mansukhram ,
(1925) 27 Bom LR 73 .
47 Imperial Bank of India v. U. Rai Gyaw ,

(1924) 51 Cal 86 : 50 IA 283; Kshetra Nath v. Harasukdas ,
AIR 1927 Cal 538 .
48 Oliver v. Hinton , (1899) 2 Ch. 264.
49 See notes to Explanation I.

Page 80 of 81
S.3(A)
50 S. Alwar Chetty v. K. Jagannatha,

(1926) 54 MLJ 109 ; Peto v. Hammond , (1861) 30 Beav. 495 : 54 ER 981; Tehilram
v. Kashibai , (1909) 33 Bom 53.
51 Rimmer v. Webster , (1902) 2 Ch. 163; Lickbarrow v. Mason , (1787) 5 Term Rep. 367 : 2
ER 39; Rice v. Rice , (1854) 2 Drew 73 : 61 ER 646.
52 Re. Alms Corn Charity , (1901) 2 Ch. 750; Nottingham Patent Brick and Tile Co. v. Butler,
(1886) 16 QBD 778 .
53 Reeve v. Berridge,
(1888) 20 QBD 523 ; Re. White and Smith’s Contract , (1886) 1 Ch. 637; Molyneux
v. Hawtrey,
(1903) 2 KB 487 .
54 Rogess v. Hosegood , (1900) 2 Ch. 388; Rowell v. Satchell , (1903) 2 Ch. 212; Osborne
v. Bradley , (1903) 2 Ch. 446; Elliston v. Reacher , (1908) 2 Ch. 374; Sobey v. Sanisbury , (1913) 2 Ch. 513.
55 Peto v. Hammond , (1861) 31 LJ Ch. 354 : 54 ER 981; Morland v. Cook ,

(1868) LR 6 Eq. 252; Oliver v. Hinton , (1899) 2 Ch. 264; Rajaram v. Krishnasami ,
(1893) 16 Mad 301 ; Bank of Bombay v. Suleman Somji , (1909) 33 Bom 1 : 35 IA 139.
56 See notes on Explanation II.
(1925) 27 Bom LR 73 .
58 Allen v. Seckhan , (1879) 11 Ch. D. 790.
59 West v. Reid , (1843) 2 Hare 249 : 67 ER 104.
60 Zaverchand v. Jesang ,
(1931) 33 Bom LR 499 .
61 Jones v. Powles , (1834) 3 LJ Ch. 210 : 40 ER 222.
62 M. Ramakrishna Reddy v. Sub-registrar, Bangalore ,

AIR 2000 Kant 46 [
LNIND 1999 KANT 97 ] (48) :
1999 (6) Kant LJ 68 .
63 Sivakoti Dasaradharam v. Sivakoti Yoganandam ,

AIR 1996 AP 273 [
LNIND 1996 AP 26 ] (279, 280) :
1996 (1) ALT 306 .
Page 81 of 81
S.3(A)
64 Sivakoti Dasaradharam v. Sivakoti Yoganandam ,

AIR 1996 AP 273 [
LNIND 1996 AP 26 ] (279, 280) : 1996 (1) ICC 654.
65 Bhagabat Prasad Das v. Haimabati Devi ,

AIR 1990 Ori 70 (73) (DB) : (1989) 68 CutLT 444.
66 Parvati v. Madanlal,
AIR 1988 Bom 354 [
LNIND 1987 BOM 215 ] (357).
End of Document
Darashaw Vakil
S. 4.
The Chapters and sections of this Act which relate to contracts shall be
taken as part of the Indian Contract Act, 1872 (9 of 1872);
67 [And Section 54, paragraphs 2 and 3, Sections 59, 107 and 123 shall be read as
supplemental to the Indian
Registration Act ,68 [1908 (16 of 1908)]].
67 Added by Act 3 of 1885, Sec. 3.
68 Subs. by Act 20 of 1929, Sec. 5, for "1877".
End of Document
S.4(A)
Darashaw Vakil
COMMENTS
Amendment in the section. —The figures "1877" in paragraph two were substituted by the fitures
"1908" by Section 5 of Act20 of 1929. It will be observed that in the cases in which the controversy arose over the
second paragraph "1908" was referred for "1877" even prior to the amendment therein. Such a reference was
sanctioned by the
General Clauses Act 10 of 1897, Sec tion 8.
Scope and application. —

Section 4 of the T.P. Act provides that the chapters and sections of the
Transfer of Property Act , which relate to contracts are to be taken as part of the
Indian Contract Act, 1872 . That section however does not enact and cannot be read as enacting that the
provisions of the
Indian Contract Act, 1872 are to be read into the
From the provisions contained in

Section 4 of the T.P. Act , it is clear that all the provisions of the
Indian Contract Act, 1872 are not made applicable to transfer of immovable properties. Therefore, the
provisions of the
Indian Contract Act, 1872 , as a whole, cannot be read as part of the Transfer of PropertyAct. It is only
such parts or provisions of the
Transfer of Property Act , which relate to contract alone, are to be read as part of the
Indian Contract Act, 1872 . Therefore, such of the provisions in the
Transfer of Property Act , which relate to contracts, shall have to be interpreted in the light of the
provisions contained in the
Indian Contract Act, 1872 . Transfer of ownership of immovable property is effected by compliance with
certain legal formalities, in accordance with the provisions contained in the
Transfer of Property Act and
Registration Act . Once there is a completed conveyance, the matter does not remain in the domain of
contract, and the consequence of the distinction between an agreement, which is normally executory, and a
completed conveyance are attracted. A mortgage is both a debt and a conveyance.70
Where the husband transfers immovable property to his wife in lieu of maintenance, but no registered document is
Page 2 of 5
S.4(A)
executed, it passes no title to the wife and the husband continues to be the owner of the property. 71
Under Section 5 of the MP Ceiling on Agricultural Holdings Act (24 of 1954). there is bar on the transfer of the land
without the permission of the Collector and the ban operates till final order under Section 11 is passed. Though
Section 5 of the Act does not provide that transfer made without the permission of the Collector is void and invalid,
but in view of the provisions of
Section 23, Indian Contract Act, 1872 , read with
Section 4 of the T.P. Act , in view of the prohibition contained in Section 5 of the MP Ceiling on
Agricultural Holdings Act (24 of 1954). the transfer is void.72
Enactments relating to contracts. —These are, according to Section 4, to be taken as part of the
Indian Contract Act, 1872 , but not vice versa . They are scattered over the Act, being such portions
thereof as relate to transactions antecedent to actual transfer or to conduct vitiating a transfer or to the rights and
obligations of the parties resulting on a transfer. 73
The second paragraph. —This paragraph had no existence prior to 1885. According to the law as it
then stood, while a transfer of immovable property of a value less than Rs. 100 could be effected without
registration, such a transfer by virtue of paragraph 3 of Section 54 of this Act could only be by a registered
instrument or by delivery of the property so that where a transaction was not effected by delivery, registration was
compulsory while under
Section 17 of the Registration Act its registration was optional. To rectify this inconsistency this
paragraph was added by the
Amending Act 3 of 1885 making paragraphs 2 and 3 of Section 54 supplemental to the Indian
Registration Act , 1877. This amendment led to further discussion in the various High Courts as to
whether the sections of the
Transfer of Property Act enumerated in this paragraph fell within the comprehensive and stringent
prohibition of
Section 49 of the Registration Act, 1908 . The effect of the decisions of the Madras74 and Allahabad 75
High Courts and of one of the Judges of the Bombay High Court 76 was that any unregistered deed of transfer of
immovable property below the value of Rs. 100 would not only not be effectual to transfer the property but would
not fall within Section 49 and could be admitted in evidence of the transaction. By clause (a) of sub-clause (3) of
Section 10 of Act 21 of 1929
Section 49 of the Registration Act, 1908 has been amended subjecting documents registrable under the
provisions of the
Transfer of Property Act under the same disability as those under the
Registration Act, 1908 . In the Madras case an unregistered lease for a period of less than one year,
required to be registered under
Section 107 of the Transfer of Property Act but not under
Section 17 of the Registration Act, 1908 was admitted in evidence to prove the nature of the evidence
under the instrument. Among the specified sections in this paragraph, Sec tion 123 requires that a gift of moveable
property may be effected either by registered instrument or delivery while under Section 17 of the Registration,
1908 a gift of moveable property does not need registration. As applicable to mortgages the section does not in any
way do away with the effect of Section 59 which expressly provides that in certain areas a mortgage can be only by
means of a written instrument,77 nor does it apply to a charge under Section 100. 78
By virtue of
Section 4, T.P. Act ,
Section 59, T.P. Act has to be read as being supplemental to
Section 17 of the Registration Act, 1908 .79 The combined effect of
Page 3 of 5
S.4(A)
Sections 4 ,
59 and
100 of the
T.P. Act is to make all charges in respect of immovable properties compulsorily registrable under the
Registration Act, 1908 provided the amount secured exceeds Rs. 100.80 A security bond has to be
registered "where the principal money secured is one hundred rupees or upwards" in order to affect any immovable
property comprised therein. 81
"Dam-dupat." —A rule of Hindu Law that the amount of interest recoverable at any one time cannot
exceed the principal 82 though you may take any amount as interest by degrees. It does not apply when the debtor
is other than a Hindu. It has nothing to do with any legality or illegality of any contract but it is rather a rule of
limitation, which applies to all loans, whether unsecured or secured, on moveable or immovable property. 83 But the
Madras High Court held that a claim for interest exceeding principal was maintainable after the repeal of Regulation
XXXIV of 1802 and that as a rule of Hindu Law it was not binding in the mofussil since the passing of Act XXVIII of
1855. 84 It does not, however, apply where the mortgagee has been placed in possession and is accountable for
profits received by him as against the principal and interest due, 85 but where these profits are, by the terms of the
bond, received for only a portion of the interest on the mortgage debt, the general rule of Dam-dupat will govern
such mortgage accounts. 86 The Act for the repeal of the usury laws (XXVIII of 1855) which deals exclusively with
the rate of interest is not inconsistent with the rule in question. 87 It is in force in the Presidency of Bombay 88 and in
the town of Calcutta 89 but not in other parts of the Presidency of Bengal 90 on the ground adopted by the Madras
High Court, where it was considered not binding, as aforesaid, and abrogated by the
Transfer of Property Act ,91 overlooking the provision of
Section 4 of the Transfer of Property Act taken with
Section 37 of the Indian Contract Act, 1872 .92 The principle is restricted to transactions where the
contract is between Hindus. 93 It ceases to operate if the original debtor ceases to be a Hindu by transfer or
otherwise. In Bombay the original debtor alone need be a Hindu. But if the Hindu debtor’s interest is transferred to a
Mahomedan the stop is removed and interest which may have ceased begins to run again. 94 Where the original
debtor is a Mahomedan the rule does not apply though the original creditor be a Hindu not even if the debt be
transferred to a Hindu. 95 Where the original mortgagor, a Mahomedan, transferred the lands to a Hindu, the
security being a san-mortgage, no question of personal liability arose. 96 Capitalisation of interest is supported by
texts of Codes of Hindu Law, but in no case is it suggested that arrears of interest cannot by a subsequent
adjustment, be capitalised. 97 In this state of the authorities the capitalisation clause in an English mortgage cannot
override the rule.
In mortgage transactions, the Rule of Damdupat does not apply in the State of Andhra Pradesh. Unless the
contractual rate of interest is shown otherwise usurious in nature or penal, it would be allowed. 98
69 Dhruv Dev v. Harmohinder Singh , AIR 1968

SC 1024 (1026) : 1968 (3) SCR 339; Thomas v. Moram Mar Baselious ,
AIR 1979 Ker 156 [
LNIND 1979 KER 3 ] (159, 160) :
1979 Ker LT 596 :
ILR (1979) 1 Ker 577 .
70 L.I.C. of India v. Devendrappa ,

AIR 1987 Kant 129 [
LNIND 1986 KANT 196 ] (134) (DB).
Page 4 of 5
S.4(A)
71 Rukhaiya Begum v. Fazalur Rahman ,

AIR 1998 Pat 1 (9).
72 State v. Board of Revenue, Gwalior ,

AIR 1983 MP 111 [
LNIND 1983 MP 1 ] (121) (DB).
73 Dip Narain Singh v. Naheshar Prasad ,

(1930) 52 All 338 ; Tatia v. Babaji , (1898) 22 Bom 176.
74 Rama Sahu v. Gowro Ratho , (1920) 44 Mad 55.
75 Sohan Lal v. Mohan Lal ,

(1928) 50 All 996 .
76 Dawal v. Dharma , (1917) 41 Bom 550.
77 Gurdas v. Punjab-Sind Bank Ltd. ,

AIR 1933 Lahore 972 .
78 Maneckchand v. Ganeshlal ,
(1933) 35 Bom LR 588 .
79 Ilahi Bux v. Jamila Bai , AIR

1959 Raj 143 (144) :
(1959) 9 Raj 331 .
80 K.D. Bhargava v. Official Liquidator U.P. Oil Industries ,

AIR 1962 All 101 [
LNIND 1961 ALL 25 ] (AIR
1929 PC 141 :
AIR 1939 Mad 202 [
LNIND 1938 MAD 401 ] followed ).
81 R.M. Palat v. P.A. Nedungadi ,

AIR 1958 Ker 377 [
LNIND 1958 KER 152 ] (379) (FB) :
1958 Ker LT 635 [
LNIND 1958 KER 152 ] :
ILR 1958 Ker 992 [
LNIND 1958 KER 152 ].
82 Narayan v. Satvaji , (1872) 9 Bom HC 83; Dhondu v. Narayan , (1863) 1 Bom HC 47;
Ram Lal v. Haran , (1869) 3 Beng LR 130.
83 Nathubhai v. Mulchand , (1868) 5 Bom HC 196; Narayan v. Satvaji , (1872) 9 Bom HC

83; Narayan v. Gangaram , (1868) 5 Bom HC 157 contra ; Sundarabai v. Jayavant , (1900) 24 Bom 114.
Page 5 of 5
S.4(A)
84 Annaji v. Ragubai , (1871) 6 Mad HC 400.
85 Sundarabai v. Jayavant , (1900) 24 Bom 114 ; Dhondshet v. Ravji , (1898) 22 Bom 86 ;

Gopal v. Gangaram , (1896) 20 Bom 721 ; Nathubhai v. Mulchand , (1868) 5 Bom HC 196 (199).
86 Sundarabai v. Jayavant , (1900) 24 Bom 114.
87 See Nobin Chunder v. Romesh Chunder ,

(1887) 14 Cal 781 (and cases cited there).
88 Dhondu v. Narayan , (1863) 1 Bom HC 47; Narayan v. Satvaji , (1872) 9 Bom HC 83;
Khusalchand v. Ibrahim , (1866) 3 Bom HC 23; Ramkrishnabhai v. Vittoba , (1866) 3 Bom HC 25.
89 Kunja Lal v. Narasamba ,

(1915) 42 Cal 826 ; Nobin Chunder v. Romesh Chunder ,
(1887) 14 Cal 781 .
90 Het Narain v. Ram Dein ,

(1883) 9 Cal 871 ; Surjya Narain v. Sridhany Lall ,
(1883) 9 Cal 825 ; Deen Doyal v. Koylash Chunder ,
(1876) 1 Cal 92 .
91 Madhwa v. Venkataramanjulu , (1903) 26 Mad 662.
92 Kunja Lal v. Narasamba ,

(1915) 42 Cal 826 .
93 Nobin Chunder v. Romesh Chunder ,

(1887) 14 Cal 781 .
94 Ali Saheb v. Shabji , (1897) 21 Bom 85.
95 Harilal v. Nagar , (1897) 21 Bom 38 ; Dawood v. Vullubhdas , (1894) 18 Bom 227 ;

Nanchand v. Bapusaheb , (1879) 3 Bom 131.
96 Harilal v. Nagar , (1897) 21 Bom 38.
97 Sakalal v. Bapu , (1900) 24 Bom 305.
98 S. Ravi Kumar v. P. Rama Rao,

AIR 2009 (NOC) 2745 (A.P.)
End of Document
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
Darashaw Vakil
VOLUME I > CHAPTER II OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
Chapter II Nothing in Chapter II is to be deemed to

affect any rule of Muhammadan Law, see Section 2, supra. OF
TRANSFERS OF PROPERTY BY ACT OF PARTIES
(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE
"Transfer of property" defined.
1 Nothing in Chapter II is to be deemed to affect any rule of Muhammadan Law, see Section 2, supra .
End of Document
Darashaw Vakil
S. 5.
In the following sections "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, 2 [or to himself] and one or more other living persons; and "to
transfer property" is to perform such act.
3 [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.]
2 Ins. by Act 20 of 1929, Sec. 6.
3 Ins. by Act 20 of 1929, Sec. 6.
Legislative Changes. —In paragraph 1, the words "or to himself" were added by Section 6 of
the Transfer of Property Amendment Act, 1929 (20 of 1929), in order to make it clear that a transfer can be made
by a person to himself as when he makes a settlement or trust in which he constitutes himself a trustee. Paragraph
2 has been added by way of explanation as to what is included in the words "living person" by the same section.
" Clause 6. —We have amended Section 5 to make it clear that a transfer can be made by a person to himself as,
for instance, by a person making a settlement or trust in which he constitutes himself a trustee. An Explanation has
also been added to the section to make it clear that the words "living person" include corporations and other
associations of persons." See Notes on Clauses. 4
Scope and application. —The

Transfer of Property Act deals with transfers intervivos, the act of a living person, conveying
property in present or in future, to one or more living persons. The provisions of the Transfer of the Property Actare
inapplicable to testamentary succession which are governed by the provisions of the
Indian Succession Act, 1925 .5 The transfer of property is an act by which
Page 2 of 34
(a) Property is conveyed
(b) In present or in future
(ii) By a living person
(1) To one or more other living persons
(2) or to himself
(3) or to himself and one or more other living persons.
Conveyance of property in present or in future by a living person to another living person is ‘transfer of property’ as
per
The definitions of transfer of property given in the section includes a transfer purporting to be made by deed of
appointment. 7 In England it has been held that "property" and "power" are two distinct ideas and that "power" is not
"property" within the meaning of that word as used in law. 8
Apart from inheritance, title to immovable property could be acquired either under a testament or by way of transfer
inter vivos . It is open to the full holder of an estate to bequeath his property by means of a testament or to convey it
in praesenti by an instrument as required by the
Transfer of Property Act .9 If a Hindu dies intestate, the property would devolve on his heirs.
The mode of creating an interest in immovable property is prescribed in the
Transfer of Property Act . It is only by conforming to the requirements in that behalf that a valid
title to the property could be created. When the law prescribes a particular method of conveying the property it
implies a statutory prohibition against its being given in any other manner.10 A mere engagement between the last
male-holder and another person would not pass title in the property. 11
In any sale transaction the basic and material thing is the consideration and the date by which consideration is to be
paid by the purchaser to the seller. It is because the prices in the market keep varying. 12
The owner of property normally has right to use and enjoy his own property which right includes power of
management of his property to the best of its utility as well as to consume or alienate the same. At best this right
can be, and, in fact, has been regulated by statutory provisions and the statutory authorities created to ensure due
implementation of such regulations are expected and required to act according to those statutory provisions relating
to the regulation of such right within the parameters of the powers bestowed upon such authorities under the statute
under which they are created. Transgression of such powers can result in their actions bad and decisions being
void and/or illegal. 13
"Transfer of property". —The word "transfer" is defined with the reference to the word
"convey". This word in English Law in its narrower and more usual sense refers to the transfer of an estate in land;
but it is sometimes used in a much wider sense to include any form of an assurance inter vivos . The definition in
Section 205 (1) (ii) of the Law of Property Act is—"Conveyance includes a mortgage, charge, is, assent, vesting
declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein
by any instrument except a Will." The word "conveys" in Section 5 of the Indian
T.P. Act is obviously used in the wider sense referred to above. ‘A transfer of property" as
defined in the present section does not necessarily involve the execution of an instrument of transfer or a
conveyance. In the case of movables and generally in the case of immovable property of a value of less than Rs.
100/-, a transfer may be effected by delivery of possession.14
The words "living person" exclude transfers by Will, for a Will operates from the death of the testator. 15
The term ‘transfer’ is not defined in the Act. Both

Sections 4 and
5 of the
T.P. Act give an extended meaning to the term ‘transfer’ by illustrating sale, gift, exchange
followed by ‘or otherwise’ so as to give an indication of legislative intent that ‘transfer’ in any form whatsoever and
Page 3 of 34
however styled, if it has the result of effecting the holding held by the holder, it was covered. Even the transfers
covered by or made pursuant to decree of a Civil Court are not saved. Such decrees which would have the effect of
extinguishing the title of the holder and vesting the same in someone also though not falling within the ordinary
meaning of the phrase ‘transfer of property’ would be ‘transfers’ within the meaning of the term as used in Sections
4 and 5 of the Act.16 Therefore the decree of the civil Court, which has the effect of transferring land of a landholder,
is liable to be ignored when the transferee fails to establish that the transfer of title from landholder to him is not
motivated to defeat the provisions of the
T.P. Act .17
Section 5 gives a wide connotation to "transfer of property". All that it requires is that the transferor must be living at
the time of transfer recognised by the Act. 18 Transfer of Property is not an exhaustive legislation covering every
transfer by every mode. Change of ownership from that of an individual to partnership firm is also a transfer. 19
An actionable claim constitutes property. 20 It has been doubted whether the definition in the section applies to the
term "transfer" used in Section 130. 21 It is often used as a convertible term with "alienation," "conveyance," and
"assignment," a distinction based on the tenure of the property. The word is used in its generic signification
comprehending all the species of contracts which pass real right in property from one person to another. 22 It does
not apply to the Presidency Town Insolvency Act. 23
The mere fact that documents of title were delivered does not either show or constitute a transfer of the property. 24
The phrase excludes a partition according to the Allahabad High Court 25 though a contrary view is adopted by the
Madras 26 and Calcutta 27 High Courts. An exchange under Section 118 of the Act is a transfer of property but a
compromise is not, 28 nor is the creation of an easement. 29 Similarly, recital of acts done 30 and entries in records
of Survey or of the Municipality or the Police Department 31 do not supply the conditions of the law of transfer. The
Bombay High Court has held that a legal presumption arose on the passing of the rajinama and kabuliyat that a
transfer of ownership was intended to be effected and that accordingly it operated just as if it was a sale to
extinguish the equity of redemption. The earlier cases 32 did rather go that way but later decisions took a contrary
view. 33
Where plants and machineries fastened to earth, but removable are transferred and the transferor has no right or
interest in the land, the transferee does not acquire any interest in the land, the document of transfer is a
conveyance and as such chargeable with stamp duty under Section 23 of the Stamp Act. 34
Where the sale deed was challenged as without consideration, the allegations made in the plaint were vague, no
issue was framed or decided on the question of consideration, the Courts below adjudged the sale-deed for
consideration, the finding was not interfered in special appeal before the Supreme Court. 35
If the membership of the co-operative society in the flats is transferred in favour of the nominee, the flats cannot by
virtue of the
Co-operative Societies Act be transferred in favour of any other persons. A person, who is not
a member of the Society, cannot hold even the property.36
Where the assessee transfers the shares of the limited companies into the partnership firm, as his contribution to its
capital there is a transfer of a capital asset within the meaning of
Section 45 of the Income Tax Act . 37
Where a person executes an agreement and transfers his right in favour of another person, it does not amount to
transfer of property. 38 But where in the execution of a decree for specific performance if the Court executes a
deed, it would be a transfer. 39 Delivery of possession of the property at the time of executing the agreement of sale
is not a transfer of interest in the property. 40
In order to determine the nature of an instrument; neither the nomenclature nor the language which the parties may
choose to employ in framing the document is decisive. What is decisive is the actual nature and the character of the
transaction intended by the executant. 41
Where a person releases and disclaims his right in property, it does not amount to transfer of property. 42
Where the deed of release relied upon by the plaintiff amounted to deed of conveyance, the plaintiff was entitled to
redeem and after execution of the deed of release in his favour by his two brothers, he was the sole person to
redeem the usufructuary mortgage. 43
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In the case of surrender by life tenant in favour of the remainder men, there is no transfer of property from the life
tenant within the ambit of Section 5 and there is merely an effacement or extinguishment of the rights of the life-
tenant with the result the rights of the remainder men get accelerated. 44
The word "convey" in Section 5 has been used in wider sense to include any form of an assurance inter vivos ". 45
A release deed is a transfer. 46
The positive provision contained in Section 2 (d) prevails over the definition of "transfer of property" prescribed by
Section 5. 47 The provisions of Section 57 and those contained in Chapter IV must apply to transfer by operation of
law. 48
The mere mutation of the property in revenue records in the name of a person bestows no title unless the real
owner transfers the property to such a person under the provisions of the
T.P. Act .49 Gayawali business is property, not merely an office or an office of a religious nature
attached to a particular locality or place. 50 An alienation of Gayawali gaddi is valid. 51
On the dissolution of a partnership firm, the receipt of the assets of a dissolved firm cannot be construed as
transfer. The deed of release was only a sort of acknowledgement of the title of the partners to the immovable
properties which was conferred on them by the deed of dissolution. It could not by any stretch of imagination be
treated as a conveyance of the properties because the releasers had no right to the properties at the time of the
release. 52
Transfer of land cannot be made on the basis of an unregistered deed. 53
Transfer and a Will-Distinction. —The differences between a transfer and a Will are well
recognised. A transfer is a conveyance of an existing property by one living person to another (that is transfer inter
vivos ). On the other hand, a Will does not involve any transfer, nor effect any transfer inter vivos , but is a legal
expression of the wishes and intention of a person in regard to his properties which he desires to be carried into
effect after his death. A Will regulates succession and provides for succession as declared by it (testamentary
succession) instead of succession as per personal law (nontestamentary succession). The concept of transfer by a
living person is wholly alien to a Will. 54
Oral partition. —A partition may be effected orally, but if subsequently reduced to the form of
a document and that document purports by itself to effect a division and embodies all the terms of a bargain, it will
be necessary to register it. 55
Partition—Not transfer. —A partition of the joint family property takes place by the actof the
parties, it is not a transfer within the meaning of
Section 5 of the T.P. Act . But if a suit for partition is filed and the partition is brought about
through a decree of the Court, it would amount to a transfer.56 A partition may be affected orally. 57 Partition of the
joint property is not transfer within Section 5. 58 In a partition, no one transfers title which he possesses in favour of
a person who does not possess a title. Everyone has an antecedent title. Therefore, no conveyance is involved, in
the process as conferment of a new title is not necessary. It does not amount to transfer. Therefore, partition is not
a transfer and by partition no body acquires title to any property for the first time. The partition deed only recognizes
an existing right, which each party to the deed has in the joint property and no right spring from the deed of
partition. 59 Partition is not a transfer. It is only renouncement of existing rights in common properties in
consideration of getting exclusive right and possession over the specific plots. Partition is only a process of mutual
renunciation by which common unspecified rights in large extents are located into exclusive right over specific plots.
60 Partition really means that whereas initially all the coparceners have subsisting title to the totality of the property
of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in
respect of several items of properties allotted to them respectively. It cannot be said that partition of an undivided
Hindu family property must necessarily mean transfer of the property to the individual coparceners. 61 As was
observed by the Privy Council in Girja Bai v. Sadashiv Dhundiraj . 62
"Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his
own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers".
Partition is not a transfer in the terms of

Section 5 of the T.P. Act .63 It is true that a partition is not actually covered by Section 109 but
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though the Section does not in terms apply the principle of Section is applicable as embodying a rule of justice,
equity and good conscience. 64
A document a record of partition cannot be construed as a partition deed, would not require registration. 65
Assuming, however, that partition and for that matter release deed does not amount to transfer, within the meaning
of the term transfer of property as prescribed in Section 5 and, therefore, not within the purview of Section 53, the
principle of that section can be invoked and would apply even though the section may not apply in terms since the
principle underlying it is of wider application and Section 53 is not exhaustive. If the object of a given instrument of a
partition or a release deed is not merely to give to a sharer his rightful share in the family properties but to effect a
partition in such a way that such a sharer would be able to defeat the creditors, it would amount to a fraudulent
partition. 66
Where a Muslim mother acting as de facto guardian of her minors declared, conveyed and extinguished rights and
interests in immovable property belonging to those minors by the deed of partition, the partition was held transfer of
the property. 67 Where a family arrangement itself neither creates any title in the plaintiff nor declares his title, it
does not require registration. 68
Family settlement or arrangement. — Section 5 contemplates transfer of property by a

person who has a title in the said property to a person who has no title. A family arrangement on the contrary, is a
transaction between members of the same family for the benefit of the family so as to preserve the family property,
the peace and security of the family. Such an arrangement is based on the assumption that there was an
antecedent title in the parties and the agreement acknowledges and defines what title is. It is for this reason that a
family arrangement by which each party takes share in the property has been held as not amounting to a
"conveyance of property" from a person who has title to it to person who has no title. 69 A family settlement is not a
transfer of property. 70 The settlement as a mode of transfer is not known under the Law of properties. The
Transfer of Property Act finds no place for such a transaction. Where the defendant no. 1 had
no share or right to share in he property, by a settlement there can never be a partition or division of shares or
arrangement among the members of a joint family of which the defendant no. 1 was an outsider.71 A family
arrangement is not transfer. 72
HALSBURY writes :—
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for
the benefit of the family (a) either by compromising doubtful or disputed rights or by preserving the family property (b) or the
peace and security of the family by avoiding litigation (c) or by saving its honour. "The agreement may be implied from a
long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family
arrangement" is applied.
"Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when
deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the
broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with
transactions between persons not members of the same family, would not be taken into account. Matter which would be
fatal to the validity of similar transaction between strangers are not objections to the binding effect of family arrangements."
73
The word ‘family’ has been given extensive meaning. Any member of the family may be a party to a family
arrangement and thus arrangement between parent and children—both illegitimate and legitimate, uncles and
nephews have all been supported as family arrangements. 74
A family settlement can be among not only heirs of a particular class, but also can take in its fold, persons outside
the purview of succession. 75
Where a family settlement seeks partition of joint family property, it cannot be relied upon unless it is signed by all
co-sharers. 76
The Courts will generally lean towards upholding family settlements, as it is intended to bring about family peace
and to avoid future disputes, which may ruin family. 77
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A family settlement which does not suffer from ambiguity should invariably be favoured. 78
The essentials of a valid family settlement are:—
(i) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair
and equitable division or allotment of properties between the various members of the family. 79
(ii) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence. 80
(iii) A family arrangement may be even oral. 81
(iv) The members who may be parties to the family arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is acknowledged by the parties to the settlement. 82
(v) Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona
fide family arrangement which is fair and equitable the family arrangement is final and binding on the
parties to the settlement. 83
A family settlement is treated differently from any other formal commercial settlement as such settlement in the
eyes of law ensures peace and goodwill among the family members. Such family settlements generally meet with
approval of the Courts. Such settlements are governed by a special equity principle where the terms are fair and
bona fide taking into account the well being of a family. 84
The concept of ‘family agreement or settlement’ should be treated differently. Technicalities of limitation etc. should
not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace
and harmony in a family. Any such arrangement would be upheld if family settlements were entered into ally
disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to
maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say
affection, may suffice. 85
If by execution of the document, right is transferred in praesenti , it can only be treated as a settlement deed. On the
other hand, if no right is transferred in praesenti and by execution of the document, provision is made only for
transfer of the right, after the death of either or both of the executants, it could only be treated as a Will. 86
A family arrangement, which is for the benefit of the family generally, can be enforced in a Court of law. But before
the Court could do so, it must be shown that there was an occasion for effecting a family arrangement and that it
was acted upon. 87 Whereby the parties were to get the property by inheritance in their respective branches, there
was no chance of any litigation, for the avoidance of which necessity of family arrangement was felt, as by the
family arrangement the legitimate rights of the appellant were going to be affected, it could not be said that the
consideration for the document was to enure amity and good will amongst the parties, the family arrangement did
not fulfill the essential requisites of a valid family arrangement and was not enforceable. 88 A family settlement is
normally effected for peaceful, better and convenient user and enjoyment of the family property. Rights of other
members are not extinguished in a specific portion allotted to a particular member in family settlement. Thus unless
a family settlement is effected with an intention of bringing an end to the joint status of the family, it cannot be
equated to a family partition. 89
A family arrangement would not bind the persons who are not signatories to the document. 90
Family settlement can take place only among those family members who have got right (share) in the property.
Agricultural land in dispute was admittedly Bhumidhari land of L and his daughters could not have any share in the
land during life time of their father L. Hence, family settlement by which the agricultural land of L was given to his
two daughters had no value as it was simply transaction of sale, which could be effected through registered sale
deed. The family settlement or memorandum of family settlement was found not enforceable as it amounted to
transfer. 91
If the members of the family sit together, try to embody an arrangement in a document effecting the interest of all
the members, then it is essential that the members whose interest have been affected by the arrangement should
give his consent later to the arrangement. 92 But, where the members of the family do not consider any person as
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constituting a member of the family and interested in the property, it cannot be said that the members when they
arrive at the arrangement, intended to affect the interest of the other member who is no party to the arrangement. In
such a circumstance, it cannot be said that the family arrangement is not binding and enforceable even as against
the consenting parties and cannot by regarded as a family arrangement. 93 Where one L father of the plaintiff
settled the properties inherited from his mother in favour of his brother defendant in the case, ignoring his own
children plaintiff of the case, the mental capacity of L to execute the deed was proved, held the document was a
family settlement and not a benami transaction. 94 Family settlement is not synonymous to partition, the former
does not cause severance of status, while the latter does. 95
Before a family settlement can be accepted as valid, it is necessary that it should appear to be bona fide and to
resolve family dispute and rival claims, it is also necessary that members who may be parties to the family
arrangement must have some antecedents title, claim or interest or even a possible claim in the property. 96
Where the family settlement was arrived at to avoid dispute in the family, and a decree in civil suit was passed on
the basis of that family settlement, the family settlement was held bona fide , and the decree passed on the basis of
family settlement was upheld. The suit for cancellation of the decree based on the family settlement was dismissed.
1
Family settlement is one of the recognized modes of transfer of movable and immovable properties under Hindu
law. The Courts have accepted such mode as legal and valid mode of transfer of properties. In order to find out the
correct intent of the settlor the settlement deed has to be read as a whole and draw their inference of its content,
the terms of the settlement should be closely examined and the intention of the settlor should be given effect to.
Sometimes there is absolute vesting as contemplated in
Sections 19 and
21 of the
T.P. Act , 1882. In order to ascertain the true intention of the settlor one has to closely
scrutinize the settlement deed, whether the intention of the settlor was to divest the property in his life time or to
divest the property contingency on the happening of certain event.2
The validity of a compromise or family arrangement of disputed rights depends on the facts existing at the time, and
will not be affected by subsequent judicial determinations, showing the rights of parties to be different from what
was supposed, or that one party had nothing to give up. 3 Where the fact that the settlor continues to live in the
property alleged to have been settled, by paying the electricity charges and disputes the alleged settlement on the
ground of fraud (under given facts and circumstances) the settlement deed cannot be a true and valid document. 4
Where after family settlement all the three sons are in possession of their respective shares, have made
improvements, it would be held that the family settlement has been acted upon. 5
Where a clause in family settlement is unambiguous, clear and categoric, is not vitiated by fraud, or is illegal, or is in
breach of any statutory provision, or against public policy or hit by the principle of possibility of performance, the
settlement was made bona fide by the parties to resolve all their disputes and all facts were known to the parties
when they reached the settlement, with their eyes open and fully aware of their experience of the past, they agreed
to share the property, no deduction shall be made from the value of the assets of the anticipated capital gains tax
liability on the hypothetical sale under the settlement. 6
A family arrangement can be made orally and, if made orally, there being no document, no question of registration
arises and what is required to be found out is, whether the family arrangement is bona fide or not. 7 In the instant
case the suit properties were entrusted to the plaintiff by her husband by way of oral family arrangement towards
maintenance and at the time of the introduction of
Hindu Succession Act 1956 , she was in possession of the properties, had been frequently
leased out by her to third parties, both for agricultural purposes and running a cinema theatre. Held, the plaintiff had
preexisting right in the property and on the enforcement of the Act, she become full and absolute owner of that
property.8
Family arrangement can be arrived at orally. It is only when the parties reduce the family arrangement in writing
with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought
about by the document as such, that the document would require registration. 9 Where a document recorded the
statements which the three brothers made each referring to others as brothers and referring to properties as joint
property, the document was intended to serve the purpose of the proof or evidence of what had been decided
between the parties, it was held to be a memorandum of what had taken place between the brothers and did not
require registration. 10
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In Hiran Bibi v. Sohan Bibi , 11 approving the earlier decision in Khunni Lal v. Govind Krishna Narain , 12 the Privy
Council held that a compromise by way of family settlement is in no sense an alienation by a limited owner of family
property. The transaction does not amount to a transfer. 13
Family arrangement/settlement is accepted as a transfer of interest in the property in favour of a person between
whom the family arrangement or settlement is made. The family settlement conceives of a pre-condition of interest
or title in the property amongst the members participating in the settlement or the arrangement. But it does not
preclude persons who may not have any interest in the property nor can his interest be ignored if the person derives
title to the property through family settlement or family arrangement. 14
It is not necessary that every party taking benefit under a family settlement must necessarily be shown to have,
under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one
another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some
other ground as, say, affection. 15
Family settlement/arrangement—Revocation of. —Where the division of the properties by

way of a document follows a family settlement/arrangement and the parties thereto have taken advantage thereof
by disposing properties to third parties, they cannot resile from the same nor can revoke it. 16 Mere recital in the
settlement deed that the settlor reserves the right of revocation cannot give him a power of revocation, unless the
contingencies in which the document can be revoked are mentioned in the deed. 17 Even if bona fide disputes,
present or possible which may not involve legal claims are resettled by a bona fide family arrangement, which is fair
and equitable, the family arrangement is final and binding on the parties to the settlement. 18 (Muchalikas executed
by defendants in presence of panchayatdars followed by division of properties under a document). Where the
settlor has reserved the power of revocation in the deed of family settlement, it is open to the settlor to revoke the
family settlement, and there is no bar. 19
Where a person has disposed of his property by will, his successor, has indicated the manner of the disposition of
the property, his successors cannot by way of a family arrangement change the devolution or mode of succession.
The heirs of the testator have no right to meddle with the property in any manner contrary to the wishes of the
testator. 20
The members who may be the parties to the family arrangement, while must have some antecedent title, claim or
interest and even a possible claim in the property, yet one of the parties to the settlement might have no title but
under the arrangement if the other party relinquishes all claims or titles in favour of such a person and
acknowledges him to be the sole owner, then antecedent title must be assumed and the family arrangement would
be upheld. 21
Where the plaintiffs co-owners who are brothers have made arrangement of living together in their respective
portions of house property out of love and affection, the mere fact that they are living in their respective portions of
property and same had been constructed, renovated or altered by them, will not lead to conclusion that there had
been oral family agreementBurden to prove oral family agreement is on the party alleging. 22
Where in a suit filed by the adoptive mother disputing the adoption of the adopted son, on contest, a compromise
was arrived between the parties whereunder shares were given to both, since both the parties had antecedent titles
or at least possibility of such antecedent titles and the compromise was arrived at so as to achieve peace and amity
it was held that without doubt a family arrangement had been reached by the parties in the suit. 23
Memorandum of arrangement may be treated as family settlement. —Memorandum of

arrangement may be treated as a family settlement. It is, however, well-known that intention of the parties to an
instrument must be gathered from the terms thereof examined in the light of the surrounding circumstances. 24
Where by settlement deed the father gave all the properties to one daughter and her, children attending her, no
share was given in his property thereunder to other daughters or wife, father was old and admitted to hospital at
time of execution of settlement deed, alleged Will and other documents executed by him showed that he was
treating all daughters equally, he had no ill-feelings towards other daughters, evidence of witnesses showed that he
was not in sound state of mind at time of execution of settlement deed, he was not in position to understand things
and died soon after discharge from hospital, no reason was given for exclusion of other heirs in preference to only
one daughter, held settlement deed was not a voluntary act of the executant father, and was not valid. 25
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Where the defendants did not challenge the deed of family settlement as vitiated by fraud or undue influence in their
original W.S., but such a new case was taken only in the additional W.S., subsequently filed, challenge to the
validity of the family settlement was rejected, and the family settlement was held valid. 26
An unfounded claim or defence can in certain circumstances sustain family settlement but such a claim must have
been set up in good faith. 27 For a valid family settlement it is not necessary that there should be a dispute in
existence when the settlement is made. If in order to prevent the arising of disputes and in order to secure peace
and happiness in the family, the parties arrive at a settlement amongst themselves, the settlement arrived at must
be deemed to be valid. 28
The plaintiffs had executed a settlement deed in respect of a portion of the leased property in favour of the
defendant temple. The plaintiffs took the plea that the deed was vitiated by fraud and misrepresentation, they had
affixed their thumb impression on the deed without reading the contents thereof. There was no evidence that the
plaintiffs suffered from any disability and they were not in a position to read the document of settlement. The
plaintiffs had retained a piece of the leased property with them. From the fact that the plaintiffs paid the registration
charges on the deed showed that they had knowledge about the execution of the deed of settlement and the deed
was verified by the Office of the Sub-Registrar. Held, the deed of settlement was not vitiated by any fraud or
misrepresentation. 29
Family settlement—Registration of. —Where the composition deed is transaction between

members of same family, is for mutual benefit of such members, and under the agreement the parties have been
enjoying benefits under the agreement, and the agreements had merged in decree of Court, such a composition
deed would not be challenged for non- registration. 30
A family settlement does not require registration. 31
A family arrangement can be oral, but if it is by way of memorandum, it shall be recorded in writing. If it relinquishes
any right, title or interest in immovable property, it would require registration. 32
A settlement, which does not create any right ‘in praesenti’ cannot be treated as inadmissible, on the ground that it
is not registered. 33
Where the adoptive father executed a deed in favour of his adopted son and his natural father for the proper
management of the property as the latter did not stood upto his expectations, also son reserved power to revoke
the deed, held the transaction did not amount to transfer of the property to his adopted son and his natural father
but was merely a deed of family settlement. 34
A consent decree was passed on the basis of a family settlement. By the family settlement, the deceased
relinquished his share in favour of the defendants. Held, the family settlement did not require registration. In
subsequent suit(s), it would not be necessary to prove the family settlement again. 35
Will. —A Will denotes a testamentary document. It means a legal declaration of the intention of
a testator with respect to his property which he desires to be carried into effect after his death. It is in its own nature
ambulatory and revocable during his life. 36 A testator by his Will, may make any disposition of his property subject
to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. A Will
of a man is the aggregate of his testamentary intention so far as they are manifested in writing. 37 See also the
undermentioned case. 38 It is settled principle of law that a Sada deed of family arrangement i.e. an unregistered
deed of family arrangement can be legally used in evidence for collateral purpose i.e. for the purpose of showing
the nature and character of possession of the parties in pursuance of the family settlement but for establishing this
fact that the possession of a particular party over a portion of the property is by virtue of the partition or
arrangement made through the said document it is mandatory to prove that such family arrangement was in
accordance with law. 39 Where the family arrangement Ext X was executed for settling the difference between the
husband of the contesting defendant A , and his father S for running of the business and occupation of the house,
no other heir of S had participated in the family arrange Ext. X, the share of the heir of S in the property was not
defined, held, the family arrangement Ext X was not a legal document establishing the claim of the contesting
defendant A that all the heirs of S had separated and they are in possession of the property according to their
share. The family arrangement Ext X was not admissible. 40 A Will is not a transfer within the meaning of
Section 5 of the T.P. Act 41 but it is a mode of devolution. 42
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An ineffective Will sometimes though not always, if otherwise consented by all adult members, may be effective as
a family arrangement under the guise of exercising the power of partition, the power which undoubtedly he has but
which he has failed to effectively exercise, cannot in the absence of consent of all male members bind them as a
family arrangement. 43 A gift would not be branded as a Will merely because of reservation of life interest or the
provision of maintenance for the executant. 44 Where the testator has executed a registered will in favour of his wife
and daughter, the mere fact that subsequently the testator has bequeathed substantial property to his son by
unregistered will, would not be a suspicious/unfavourable circumstance casting aspersion on the registered will
executed in favour of the daughter. 45
Where under the deed the property absolutely devolved on the plaintiff, but the executor was to enjoy the property
during her life time, only after her life time the plaintiff was to enjoy the property, the deed also provided that the
seller had no right to revoke the said document, held the document was not a will but a settlement deed. 46
Where the document jointly executed by the wife and husband provided that they shall jointly possess the
properties and enjoy them, and A schedule properties are available then, the surviving executant shall possess the
same absolutely with the right of alienation. If on the death of the surviving executant, the properties are available,
they shall go to their children. Held, there was no transfer of the right of one of the executants, during his/her
lifetime on the other. Thus, there was no transfer of any right in praesenti on the other executant. Hence, the
document in question was Will and not a settlement deed. 47
Will is not required to be registered at all. Therefore, there is no question of making any payment of stamp duty. Still
in the present case, will came to be registered with the Authority. The will comes into effect only after the death of
the executant. During the life time no rights, titles are transferred in favour of the person in whose favour the will is
made. Even during the life time, the executant can change the will also. Considering the aforesaid facts and
circumstances, the will cannot be considered as a mortgage deed. 48
Shebaitship. —Shebaitship can be subject matter of a Will. A Will being not a transfer, the bar
contained in Section 6 (d) will have no application. 49
Where the conduct of the parties and surrounding circumstances following the execution of the document viz. the
retention of the possession of the property and the assessment continuing in the name of the executor in the
revenue records clearly indicated the desire of the executor was not to transfer the suit property in favour of
defendant, held the document was a will and not a family settlement. 50
Lease. —Transfer of Property includes lease of property. 51 The interest of a lessor is a

reversion, that is to say a future estate capable of being reduced to possession on the termination of the existing
lease and can be validly transferred under Section 5. 52
"Property". —There is no definition of this term in the Act. It includes both moveable and
immovable property. The enactment must be read subject to the interpretation required by the
General Clauses Act , 1 of 1868. According to Section 2, clause 34 of that Act, "moveable
property" has been defined to mean property of every description except immovable property and the latter,
according to sub-clause 25, is said to include benefits to arise out of land and things attached to the earth or
permanently fastened to anything attached to the earth. The Act itself in Section 3 excludes from the phrase
"immovable property," standing timber, growing crops or grass. But Section 6 dealing with the subject of transfer,
excludes what according to the Act would not be property and thereby indicates what the enactment considers to be
the meaning of property. Under English Law the main distinction is between real and personal property. "It is
generally understood that those things are a man’s property which are the object of ownership on his part...The
owner in possession of a thing has a right to exclude all others from the possession or enjoyment of it...This right to
maintain or recover possession... is an essential part of ownership...Ownership may be absolute or else limited or
restricted. Absolute ownership would seem to include the right of free as well as right of exclusive enjoyment...
Another incident of absolute ownership is free power of disposition and...it is essential to an absolute ownership that
it should be of indeterminate duration...The word property is mainly used by lawyers (1) as denoting right of
ownership, (2) as denoting the object of the right of ownership, and (3) as denoting valuable things...things which
can be turned to money or assessed at a money value."53 Further, English Law classifies property as consisting of
corporeal or incorporeal things, a distinction observed in Section 54 of our Act which refers to tangible immovable
property or intangible thing. It also includes every interest in property in present or in future. In short, everything is
included in this term other than those excepted in Section 6 of the Act. The property must be in existence. Of future
property there can be no transfer, but a contract to transfer property which is to come into existence in future is a
Page 11 of 34
valid transaction enforceable by Courts of Equity. 54 In Collyer v. Isaacs , 55 Jessel, M.R., remarked, "A man can
contract to assign property which is to come into existence in the future and when it has come into existence, equity
treating as done that which ought to be done, fastens upon that property and the contract to assign then becomes a
complete arrangement." The same view was taken where G. executed a lease in favour of J. and stipulated that J.
was to defray costs of litigation for redeeming the property under lease and that if he succeeded in redeeming it, he
was to obtain possession of it and was to pay rent to G. from the date of such possession, and it was held that such
a document could not transfer the property leased but was only a contract to be performed in future and upon the
happening of a contingency. 56 The above view is supported by the decision of the Privy Council in the cases of
Rajah Sahib Perhlad Sein v. Doorga Persaud Tewarree 57 and Ranee Bhobo Soondree v.
Issur Chunder Dutt 58 . The Calcutta High Court held that in India hypothecation of moveables
existing on the premises at the time and also of moveables which may be subsequently acquired and brought there
is valid. 59
"Property" is a term of the widest import and business would undoubtedly be property unless there was something
to the contrary in the enactment. 60
The property must be in existence before its transfer can be made. 61 The hereditary trusteeship of a temple is
property. 62
Section 6 lays down that "property of any kind may be transferred" subject to certain exception. Shares in a
company are a form of property. 63
Stamp Vendor’s licence is not property, hence cannot be inherited. 64
The co-owners have unity of possession and it is not open to the defendant co-owner to resist the plaintiff co-
owner’s suit for partition on the ground of limitation. 65
"Living person". —These words are used as the transfer under the Act must be by a deed
inter vivos and not by will. According to the section, both the transferor and the transferee must be living, which
includes under Section 13 a person not in existence at the date of the transfer. The explanation to the section
further includes in the phrase a company or association or body or individuals whether incorporated or not. So does
also "person" according to the
General Clauses Act, 1897 .
A transfer inter-vivos would include a transfer in the present between the parties who are in existence at the time of
the transfer. Such person would take into its ambit not only natural persons but artificial persons including juristic
persons. 66
The expression ‘ inter vivos ’ refers to transfer or conveyance of the property from one living person to another.
Thus it is an act between two living persons who are parties to such transaction, which takes place between the
two. That also is the thrust of
Sec. 5 of the Transfer of Property Act . It is significantly more clear and explicit when it says
that "transfer of property" means ‘an actby which is living person conveys property to one or more other living
persons’.
Section 5 of the T.P. Act also uses expression "conveys property" to denote transfer of
property. Therefore, the word "conveyance" of immovable property inter vivos read in the aforesaid context clearly
indicates that an instrument of conveyance envisaged under the Stamp Act can only refer to such an instrument
transferring or purporting to the transfer or conveying property between two living persons who are party to such
instrument and not a stranger to instrument. 67
Transfer of Property inter vivos under the

Indian Stamp Act, 1899 cannot be different and distinct from the transfer of property under
A deity is not included in the definition of person in

Section 5 of the T.P. Act .69 If a deity is not a person, the provisions of the
Transfer of Property Act , including
Section 3 of the T.P. Act , do not govern a transfer of property made in favour of the deity.70
The Almighty is not a living person and a gift to Him does not require registration. 71 Though an idol is considered
Page 12 of 34
by a fiction of law as a juristic person clothed for some purposes with rights of persons yet a juristic person is not a
living person for all purposes. 72 A Hindu idol is a "juristic entity." It has a juridical status with power of suing and
being sued. 73 It is conceived as a living being and is treated in the same way as a master of the house would be
treated by his humble servant. 74 The provisions of
Section 123 of the T.P. Act apply also to gifts through the intervention of a trust and therefore
title in an endowment property passes to the idol which must be treated as a juristic person on the execution of the
deed of endowment.75
In Bhupati Nath v. Ram Lal , 76 a Full Bench of the Calcutta High Court, dealing with a Hindu will, held that the
principle of Hindu Law which invalidates a gift other than to a sentient being capable of accepting it does not apply
to a bequest to the trustees for the establishment of an image and the worship of a Hindu deity after the testator’s
death nor does it make such a bequest void. The Full Bench, after examining the Hindu texts and authorities,
observed that according to strict Hindu juridical notion there can be no gift in favour of the gods for in the case of
deities there cannot be any acceptance and therefore necessarily any gift.
Where a promoter of a company though fulfils some fiduciary duties, he cannot be described as a trustee, he
occupies a peculiar position of a quasi trustee. The declaration of promoter that the property held by him for the
company to be formed does not constitute sale, mortgage, lease, exchange or deed, the company before its
incorporation is not a living person and hence the provisions of
Section 5 of the T.P. Act are not attracted. Such declaration also does not constitute a transfer
to himself and the company has not come into force as a beneficiary and hence it will not become a trust. Hence
the transaction is outside the purview of
Section 5 of the T.P. Act and also Trust Act and it does constitute a conveyance as a vesting
instrument or other assurance of the company and can be made orally under
A club or an unregistered society is not a living person within the meaning of

Section 5, T.P. Act . An application by the members of the club for right of pre-emption would
not lie.78
"In present or in future". —These words mean that the conveyance may be one which takes
effect immediately on execution or at some distant date, that is to say, the interest of the transferee arises
immediately on the execution of the document or at a date fixed by the parties. In Re. Mahomed Hasham & Co. , 79
Marten, J., in holding that Section 5 did not apply to the Presidency Town Insolvency Act, observed : "I am not
absolutely sure what the words ‘in presentor in future’ refer to. I should have thought grammatically they refer to
property." In Shumsuddin v. Abdul Husein , 80 Jenkins, C.J., remarked, "there is no definition in the Act of ‘convey’
or of ‘property,’ but it is to be noticed that a transfer means a conveyance of property not only in present but also in
future.
In view of
Section 5 of the T.P. Act , any transfer of property provided in the said Act can be given effect
to either from the date of execution and registration or from a future date but there is no scope of giving effect to
any transfer from an earlier date.81
Section 5, T.P. Act defines a "transfer of property" as an act by which the transferor conveys
property in present or in future to the transferee or transferees. A transfer of a decree by assignment in writing may
be effected by conveying the decree in present or in future to the transferee. But even for the transfer to operate in
future the decree, which is the subject matter of the transfer, must be in existence at the date of the transfer.82 A
conveyance may be in present or in future, but the conveyance should be of a property in existence. A purported
transfer of property, not in existence at the time of the contract, can only operate as a contract to be performed in
future. 83
The words "in present or in future" qualify the word "conveys" and not the word "property" in the Section. A transfer
of property that is not in existence operates as a contract to be performed in the future which may be specifically
enforced as soon as the property comes into existence. 84
A judgment debt or decree is not an actionable claim for no action is necessary to realize it. It has already been the
subject of an action and is secured by the decree. A decree to be passed in future also does not come as such
within the definition of an actionable claim and an assignment or transfer thereof need not be effected in the manner
Page 13 of 34
prescribed by
Section 130, Transfer of Property Act . If therefore the assignment or transfer of a decree to be
passed in the future does not require to be effectuated in the manner prescribed in the statute there would be no
objection to the operation of the equitable principle above enunciated and the contract to assign evidenced by the
assignment in writing becoming a complete equitable assignment of the decree when passed.85
"Or to himself". —These words have been added by the

Amending Act , 1929. Prior to the amendment, the words "
Transfer of Property Act " had been defined in the section as to exclude a conveyance or
delivery of property by a man to himself. The change has been made to enable a person to transfer property to
himself as trustee on the execution of a settlement or trust of his own property.86 The authorities, however, prior to
the amendment were against a person transferring property to himself as when he is a trustee or executor
conveying property to himself as beneficiary.
Exchange. —Exchange is a recognised mode of transfer like sale, gift, part performance etc.
under the
Transfer of Property Act .87 A party to exchange cannot take the plea of adverse possession. 88
Where exchange affects transfer of immovable property worth Rs. 100/- or more, registration is required, oral
exchange is not permissible. 89
Supplementary lease deed. —Where the Government had granted lease of land for industrial
unit to a Company, the Company transferred its unit to its subsidiary company, the Government executed
supplementary lease deed in favour of the subsidiary company execution of supplementary lease deed in favour of
the subsidiary company by the State Government was held not an instrument of conveyance. 90
Mutation entry. —Merely on the basis of mutation entry in revenue records, a legal transfer of
right, title and interest in the immovable property is not effected. The mutation entry is not the form of a registered
document evidencing transfer of immovable property. Transfer of immovable property, it is trite to be legal, must be
in accordance with the
Transfer of Property Act, 1882 . In the absence of a registered document of transfer of
immovable property, a mutation entry ‘per se’ cannot constitute a valid and legal transfer of immovable property.91
The correct proof of ownership is a registered sale deed in favour of a person. Revenue entry or revenue receipts
have nothing to do with the ownership and they cannot be treated as a conclusive evidence of the ownership of the
property. 92 Mere mutation does not confer right or title to property. 93
For proving ownership of land, proof of mutation entry is not necessary as mutation entry neither creates nor
extinguishes title or ownership of the land. 1
Registration of a document is a solemn act to be performed in the presence of competent officer whose function is
to ensure that proper person was before him in his official capacity and verified by his signatures will be presumed
to be in order and duly done. Thus, registered sale deed would be a proof of admission of receipt of consideration
made before the Registrar. 2
This section and Chotanagpur Tenancy Act (6 of 1908), Surrender. —The expression
‘transfer’ appearing in Chotanagpur Tenancy Act (6 of 1908), must be liberally construed and the surrender made
by a tribunal should be construed as a transfer under the said Tenancy Act. 3
Transfer of share of a company. —Where under the

Companies Act, 1956 or
Transfer of Property Act , the shares are transferable like any other movable property. The only
restriction on the transfer of the shares of a company is as laid down in its Articles, if any. A restriction, which is not
specified in the Articles, is, therefore, not binding either on the company or on the shareholders. The vendee of the
shares cannot be denied the registration of the shares purchased by him on a ground other than that stated in the
Articles.4
Will under the Mohammedan Law. —Under the Mohammedan Law for the execution of a
Will no form is required and writing by way of a testamentary disposition by a Mohammedan is valid and binding on
he persons claiming his estate. 5 Even a verbal declaration is a Will so long as the intention of the testator can be
Page 14 of 34
ascertained. 6 Where the testator declared his daughter and the nephew to be his heirs entitled to the share in the
property mentioned in the alleged Will, divided the property in species and also delivered possession, it was held
that the document though styled as a Will was a mere conveyance designed by the testator to dispose his
properties, and it being invalid was held not binding on the heirs of the testator. 7
Deed of relinquishment. —It is well settled that no valid title can be created by relinquishment
or release. The release pre-supposes the existence of title in a third person and does not purport to re-convey that
title to him. It tantamounts to an admission of existing fact by the ostensible owner. 8 A deed of relinquishment is in
the nature of deed of gift, where the various properties dealt with are always separable, and the invalidity of the
deed of gift in respect of one item cannot affect its validity in respect of another. 9 Renouncement of a coparcenary
right in favour of one or more coparceners would enure to the benefit of all other co-parceners in whose favour the
renouncement or release was made. 10 Where the deed of relinquishment, was in respect of the individual interest
of the three brothers in the assets of the partnership firm in favour of the Trust, and consequently, did not require
registration, even though the assets of the partnership firm included immovable property, and was valid without
registration. 11 A release deed would not be effective to transfer title. A release deed can only feed title but cannot
transfer title. 12
If there are two co-owners and one of the co-owners relinquishes his share in favour of the other, the result of the
relinquishment is the enlargement of the share of the other co-owner. In the instant case, plaintiff No. 1 had
relinquished her 3/8th undivided share in favour of plaintiff No. 2, who had a 5/8th undivided share in the property
and as a result the ownership of plaintiff No. 2 in the suit became complete and whole. Held, the release deed was
in accordance with law and hence, plaintiff No. 2 had the locus standi to issue the notice of termination and also file
the suit. 13
If the person executing the release deed himself holds some right, title or interest in the property, release of that
interest would amount to conveyance which has to be for a consideration. The question of consideration does not
arise for the release of the property in respect of which he was only benamidar because benamidar himself has no
right, title and interest in the property. 14
A release deed can be validly executed also for some benefit accruing to releaser simultaneously. A release deed is
valid not only when it is gratuitous but also when it is executed for some benefit accruing to releaser. 15
A released deed procured by the brothers from their sister on false representation of her interest in immovable
property was held void and not acted upon. 16 Where property is owned by two owners and one of them effaces
himself in respect of his right and title to possession, in favour of another, it is a deed of release and not
conveyance. 17
Deed of relinquishment, gift and partition deed. —A deed of relinquishment, or a deed of

gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some
properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to
the properties subject to partition as a whole. 18 Relinquishment of right by a member of a joint family in property by
waiver does not involve transfer and as such does not require registration. 19 In cases of adverse possession, the
starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff e.g.
by partition deed but it commences from the date when the defendants’ possession became adverse. 20
A release can be usefully employed as a form of conveyance by a person having some right or interest to another
having a limited estate, e.g. by a remainder man to a tenant for life, and the release then operates as an
enlargement of the limited estate. 21 A release deed can by the use of the words of sufficient amplitude, transfer
title to one having no title before the transfer. 22
Surrender, Sale and relinquishment. —A sale or a transfer presupposes the existence of the
property, which is sold or transferred. It presupposes the transfer from one person to another of the right in
property. On the other hand, relinquishment means the extinction of a right or the destruction of a property, and if
the property is destroyed or the right is extinguished, there is nothing left to transfer or to sell. 23
A surrender or relinquishment of right in immovable property is a transfer of property if it is made in favour of a

person having no interest in it. Any transfer of immovable property worth more than Rs. 100/- requires registration.
A relinquishment of share in the joint property of Hindu may not require registration whenever such surrender is
effected at the time of partition, since it is a transfer of interest in favour of person having an interest in it. 24
Page 15 of 34
For transfer of the ownership of a building, execution of conveyance deed is necessary. 25
Copy of deed of transfer. —Mere filing of copy of deed of transfer does not prove ownership
of land. 26
Miscellaneous. —Where the owner of the bus agrees to give bus to the hirer and on payment
of the entire amount the hirer was to become the absolute owner of the bus and on failure to pay the hire amount,
the owner would be entitled to seize the bus, if the hirer fails to pay the hire amount the owner has right to seize the
bus, the hirer cannot take the plea that the owner can claim compensation under Section 74, of the Contract Act as
Section 74 does not apply in such cases. 27
Where on the construction of a document transferring title to hold a property, it is clear that the intention of the
parties was to transfer a plot of land within well-defined boundaries, any erroneous statement or omission to state
survey number, should be rejected as false demonstratis. 28
Where on account of improper focus of the computer camera or for some other reason, the photograph on the deed
did not appear properly, it did not render the transfer deed invalid. 29
A property, which is not in existence on the day of the contract but would be available in due course of time,
becomes potential property and a sale in respect of such property is established by contract. The title in such
property passes unto the purchaser although the seller holds it in the capacity of a trustee. 30 A purported transfer
of property, not in existence at the time of the contract, can only operate as a contract to be performed in future. 31
In a contract for the supply of huge quantity of the coal ash, in the case of breach compensation is not the adequate
remedy. 32 In public auction of corner sites with intention to fetch best possible price, the petitioners bids and the
deposit of 25% of the said bids do not constitute a transfer of property nor by offering the bids the petitioners
acquired any vested rights. 33
4 Vide REPORT OF THE SELECT COMMITTEE, SECOND REPORT

ON THE TRANSFER OF PROPERTY (AMENDMENT) BILL, 1929.
5 N. Ramaiah v. Nagaraj S .,
AIR 2001 Kant 395 [
LNIND 2001 KANT 175 ] (398) (DB) :
2001 (4) Kant LJ 12 : ILR (Kant)
2001 (3) Kar 3466 .
6 Vuppuluri Veera Venkata Raju v. Special Deputy Tahsildar, Tribal

Welfare ,
2007 (5) Andh LT 418 (423) (AP); Lalji Agarwal v. State of U.P.,
2012 (117) RD 823 (827) (All).

(1895) 22 Cal 185 , 202.
8 Re. Armstrong, Ex-parte Gilchrist , (1886) 17 QBD. 521; Stamp Duties

Commissioner v. Stephen,
(1904) AC 137 ; Tremayne v. Rashlingh, (1908) 1 Ch. 681.
9 Narasayya v. Ramchandrayya ,
AIR 1956 AP 209 (211, 212).
Page 16 of 34
AIR 1956 AP 209 (211, 212).
AIR 1956 AP 209 (211, 212).
12 Sobhag Narain Mathur v. Pragya Agarwal ,

2009 (165) DLT 274 (Delhi).
13 Gango Co-op. Housing Socy. Ltd. v. Municipal Corpn., Greater

Bombay ,
AIR 2004 Bom 64 [
LNIND 2003 BOM 670 ] (67) :
(2004) 1 Bom LR 475 [
LNIND 2003 BOM 670 ]..
14 Koragappa Gowda v. Jinnappa Gowda , 1998

AIHC 1147 (1149) (Kant); Lala Devi Dass v. Panna Lal , AIR
1959 J&K 62 (FB).
15 Koragappa Gowda v. Jinnappa Gowda , 1998

AIHC 1147 (1149) (Kant); Lala Devi Dass v. Panna Lal , AIR
1959 J&K 62 (FB).
16 Jagdish v. State ,
AIR 1993 MP 132 [
LNIND 1992 MP 39 ] (134, 135); Christine Pais v. K. Ugappa
Shetty ,
AIR 1966 Mys 299 .
17 Jagdish v. State ,
AIR 1993 MP 132 [
LNIND 1992 MP 39 ] (134, 135).
18 Vasudev Ram Chandra Shelat v. P.J. Thakar , AIR

1974 SC 1728 :
(1974) 2 SCC 323 [
LNIND 1974 SC 195 ] (329) :
(1975) 1 SCR 534 [
LNIND 1974 SC 195 ].
19 Sudhanshu Kanta v. Manindra Nath ,

AIR 1965 Pat 144 (DB) :
1965 BLJR 252 (
AIR 1963 Pat 221 relied on ).
20 Rudra Perkash v. Krishna Mohun ,

(1887) 14 Cal 241 ; Muchiram v. Ishan Chunder ,
(1894) 21 Cal 568 , 586.
Page 17 of 34
21 Bhopatrao v. Shri Ramchandra ,

AIR 1926 Nag 469 .
22 Gopal v. Badri ,
(1888) 5 All 121 ; Mata Din v. Kazim Husain ,
(1891) 13 All 432 .
23 In re Mahomed Hasham & Co. ,

(1922) 24 Bom LR 861 [
LNIND 1922 BOM 113 ].
24 Kalusa v. Madhaorao ,
AIR 1926 Nag 357 .
25 Pohkar v. Dulari ,
(1930) 52 All 716 , 727.
26 Rasa Goundan v. Arunachela Goundan ,

AIR 1928 Mad 577 .
27 Atrabanessa Bibi v. Safatullah Mia ,

(1916) 43 Cal 504 .
28 Barati Lal v. Salik Ram ,

(1916) 38 All 107 ; Basangowda v. Irgawdatti , (1923) 47 Bom
597 ; Krishna Tanhaji v. Aba Shetti , (1910) 34 Bom 139 ; Pohkar v. Dulari ,
(1930) 52 All 716 , 727; Khunni Lal v. Gobind ,
(1911) 33 All 356 : 38 IA 87; Hanuman v. Abbas Bandi , (1929) 4
Luck. 452; Ram Gopal v. Tulshi Ram ,
(1929) 51 All 79 ; Hiran Bibi v. Lohan Bibi ,
(1914) 18 CWN 929 .
29 Sital Chandra v. Delanney ,

(1916) 20 CWN 1158 .
30 Immudipattam v. Periya Dorasami , (1901) 24 Mad 377 : 28 IA 46.
31 Kartar Singh v. Mehr Nishan , (1935) 16 Lah 313 ; Muhammad

Sulaiman v. Sakina Bibi ,
(1922) 44 All 674 ; Merwanj Muncherji Cama v. The Secretary of
State for India in Council ,
(1915) 19 CWN 1056 PC; Kumar Raj Krishna v. Barabani Coal
Concern, Ltd ., (1934) 60 CLJ 477.
32 Venkaji Narayan v. Gopal Ramchandra , (1914) 39 Bom 55 ; Imam

Valad Ibrahim v. Bhau Appaji , (1917) 41 Bom 510 ; Narso Ramaji v. Nagava , (1918) 42 Bom 359.
33 Chandanmal v. Bhaskar ,
(1919) 22 Bom LR 140 ; Rachappa v. Ningappa , (1925) 49 Bom
847.
Page 18 of 34
34 Orai Oil Chemicals Pvt. Ltd. v. State ,

AIR 1997 All 92 [
LNIND 1996 ALL 308 ] (96, 97).
35 Hans Raji v. Yasodanand , AIR

1996 SC 761 (763) :
(1996) 7 SCC 122 [
LNIND 1995 SC 1182 ].
36 Kusum Debi Jhinijhani v. Pushpa Devi Khurda ,

AIR 1990 Cal 2054 (215).
37 Sunil v. I.T. Commr, Ahmedabad, AIR 19 86 SC 368 (373, 374) :

(1985) 4 SCC 519 [
LNIND 1985 SC 303 ].
38 Municipal Corporation of Delhi v. Veena Mehta , AIR 1977 NOC (Del) :

1977 Raj LR 126 ; Majidan v. Ishaq , 2008
AIHC 1473 (1476) (Uttra) (Agreement to sell is not transfer of
property).
39 Christine Pais v. K. Ugappa Shetty ,

AIR 1966 Mys 299 .
40 Majidan v. Ishaq, 2008

AIHC 1473 (1476) (Uttra).
41 A.S. Krishna Murthy v. C.N. Revanna,

2009 (5) Kar LJ 454 [
LNIND 2009 KANT 187 ] (Kar).
42 Savitri Devi Abdali v. Ram Bhaj Datta ,

AIR 1977 NOC 204 (Del).
43 Harish Chandra v. Chandra Shekher ,

AIR 1977 All 44 (47).
44 Palanivelu v. Ouseph Mathai ,

AIR 1973 Mad 309 [
LNIND 1972 MAD 247 ] (310).
45 Official Assignee v. T.D. Tehrani ,

AIR 1972 Mad 187 [
LNIND 1971 MAD 192 ] (188) : (72) 1 Mad LJ 48.
46 Official Assignee v. T.D. Tehrani ,

AIR 1972 Mad 187 [
LNIND 1971 MAD 192 ] (188) : (72) 1 Mad LJ 48.
Page 19 of 34

1965 SC 834 (838) :
1965 (1) SCR 726 [
LNIND 1964 SC 366 ].

1965 SC 834 (838) :
1965 (1) SCR 726 [
LNIND 1964 SC 366 ].
49 Roop Raj Laxmi v. Sub. Divnl. Officer ,

2001 AIHC 284 (287) (Raj).
50 Murari Lal v. Narayan Lal ,

AIR 1956 Pat 345 (349) (DB) :
1956 BLJR 88 .

AIR 1956 Pat 345 (349) (DB) :
1956 BLJR 88 .
52 Balbir Singh v. State of U.P.,

AIR 2012 All 113 [
LNIND 2012 ALL 12 ] (117) : 2012 (4) All LJ 430.
53 Ghanshyam Mandal v. State of Bihar,

2003 (8) AIC 248 (250) (Pat).
54 N. Ramaiah v. Nagaraj S
.,
AIR 2001 Kant 395 [
LNIND 2001 KANT 175 ] (398) (DB) :
2001 (4) Kant LJ 12 ; Lala Devi Dass v. Panna Lal , AIR 1959
J&K 62 (FB).
55 Nanni Bai v. Gita Bai ,

AIR
1958 SC 706 :
1959 SCR 479 [
LNIND 1958 SC 50 ] ; Roshan Singh v. Zile Singh , AIR
1988 SC 881 (885); Hans Raj Agarwal v. C.I.T .,
(2003) 2 SCC 295 (308): AIR
2003 SC 807 .
56 S.K. Sattars Sk. Mohd. v. Gundappa Ambadas,

(1996) 6 SCC 373 [
LNIND 1996 SC 1681 ] (383).
57 Hans Raj Agarwal v. C.I.T .,

(2003) 2 SCC 295 (308); Naini Bai v. Gita Bai , AIR
1958 SC 706 (713) :
1959 SCR 479 [
LNIND 1958 SC 50 ] ; Roshan Singh v. Zile Singh , AIR
1988 SC 881 ;
Page 20 of 34
(2002) 2 SCC 624 [

LNIND 2002 SC 86 ] ); Panchapagesa v. Kalyanasundaram ,
AIR 1957 Mad 472 [
LNIND 1956 MAD 66 ] (DB).
58 Amb Singh v. Sub-divisional Officer, Bhinmal ,

(1997) AIHC 867 (869) (DB) (Raj); Bansilal v. Shri Bhagwan ,
AIR
1955 Raj 167 : 5 Raj LW 129; Smat Zaveri v. Jihi , AIR 1954 Sau
46 (DB) : 6 Sau LR 100.
59 Aralapa v. Jagannath ,
AIR 2007 Kar 91 (97).
60 V.P.R. Prabhu v. S.P.S. Prabhu ,

AIR 1985 Ker 265 (271); Panchali v. Manni,
1963 Ker LT 168 :
AIR 1963 Ker 66 [
LNIND 1962 KER 174 ] (FB).
61 V.N. Sarin v. Ajit Kumar , AIR

1966 SC 432 (435) :
1966 (1) SCR 349 [
LNIND 1965 SC 184 ].
62 43 Ind App 151 at p. 161 : AIR

1916 PC 104 at p. 108.
63 Gujarat Mineral Development Corpn. v. V.L. Bhil ,

AIR 1979 Guj 25 (26); V.N. Sarin v. Ajit Kumar Poplai , AIR
1966 SC 432 :
1966 (1) SCR 349 [
LNIND 1965 SC 184 ]; Bansilal v. Shri Bhagwan , AIR
1955 Raj 167 : 5 Raj LW 129; Smat Zaveri v. Jihi , AIR 1954 Sau
46 (DB) : 6 Sau LR 100; Veerappa v. Halavva S. Heggeri , 2008
AIHC 2449 (2454) (Kant) :
AIR 2008 (NOC) 2172 .
64 Mohar Singh v. Devi Charan , AIR 1988

SC 1365 (1368) :
(1988) 3 SCC 63 [
LNIND 1988 SC 598 ].
65 Veerappa v. Halavva S. Heggeri ,

2008
AIHC 2449 (2454) (Kant) :
AIR 2008 (NOC) 2172 ; Kishan Chand v. Prem Chand ,
AIR 2008 (NOC) 2176 (P&H). (A memorandum of past
transaction).
66 Sushilabehn v. Anandilal Bapalal ,

AIR 1983 Guj 126 [
LNIND 1982 GUJ 217 ] (133) (DB).
Page 21 of 34
67 S.K. Mohd. Zafir v. S.K. Amiruddin ,

AIR 1963 Pat 108 (DB) (AIR 1954 Trav-Co. 370 : AIR 1951
Trav-Co. 118 (FB) : AIR 1918 PC Trav-Co. relied on ).
68 Tek Bahadur v. Debi Singh ,

AIR 1959 Ass 109 (112) (DB); Y. Yenkataraju v. Y. Yedukondalu
,
AIR 1958 AP 145 (DB) :
1957 Andh LT 179 : (1957) 2 Andh WR 16.
69 Sk. Sattar Sk. Mohd. v. Gundappa Ambadas ,

1996 (6) SCC 373 [
LNIND 1996 SC 1681 ] (380, 381); Bulkan Shah v. Ganga Devi
Nathani ,
AIR 1964 Pat 214 (DB); Baikunth Singh v. Jhulan Singh ,
AIR 1950 Pat 488 .
70 Ganeshi v. Ashok, AIR 2011

SC 1340 (1342) : 2011 (4) SCALE 226 :
[2011] 4 SCR 215 [
LNIND 2011 SC 354 ].
71 Atava Akkulamma v. Gajella Papi Reddy ,

AIR 1995 AP 166 [
LNIND 1994 AP 469 ] (171).
72 Ram Charan Das v. Girja Nandini Devi , AIR

1966 SC 323 ) :
(1965) 3 SCR 841 [
LNIND 1965 SC 141 ] ; Dulal Chandra Chatterjee v. Moni Mohan
Mukherjee , 2004 (4) Cal HN 563 (569) : 2005 (1) Cal LT 119 (Cal-DB); Bulkan Shah v. Ganga Devi Nathani ,
AIR 1964 Pat 214 (DB); Ram Charan v. Girjanandami Devi ,
AIR 1959 All 473 [
LNIND 1958 ALL 152 ] (DB) : 1959 All WR HC 85.
73 See HALSBURY’S Laws of England , Vol 17 p. 215, 216; Hansa Industries Pvt. Ltd. v. Kidarsons
Industries Pvt. Ltd. , AIR
2007 SC 18 (22) :
(2006) 8 SCC 531 [
LNIND 2006 SC 822 ].

AIR 1959 Ass 109 (110) (DB)
75 Zaheda Begum v. Lal Ahmed Khan ,

AIR 2010 A.P. 1 [
LNIND 2009 AP 582 ] (4).
76 Narendra Kante v. Anuradha Kante, 2010 AIR SCW 305 :

JT 2009 (15) SC 477 .
77 K.C. Mandal v. Mt. Aita Bala Dassi ,

AIR 1968 Pat 487 (DB); Amteshwar Anand v. Virender Mohan
Page 22 of 34
Singh , AIR
2006 SC 151 (159) :
(2006) 1 SCC 148 [
LNIND 2005 SC 812 ].
78 Anup Kr. Debbarma v. Ahindra Kr. Dbbarma ,

AIR 2009 (NOC) 588 (Gau) (DB).
79 Kale v. Dy. Director of Consolidation , AIR

1976 SC 807 (813) :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ] ; Kauleshwari Kuer v. Surajnath ,
AIR 1957 Pat 456 (DB) :
1957 BLJR 319 ; Jatru Pahan v. Ambikajit Prasad ,
AIR 1957 Pat 570 .

1976 SC 807 (813) :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ].

1976 SC 807 (813) :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ] ; Pappayammal v. Palamisamy ,
AIR 2005 Mad 431 [
LNIND 2005 MAD 691 ] (440) :
(2005) 3 MLJ 32 [
LNIND 2005 MAD 691 ] ; A.C. Laxmipathy v. A.M. Chakrapani
Reddiar ,
AIR 2001 Mad 135 [
LNIND 2000 MAD 1031 ] (DB):
(2001) 1 LW 257 .

1976 SC 807 (813) :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ].

1976 SC 807 (813) :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ].
84 Hari Shankar Singhania v. Gaur Hari Singhania , AIR 2006

SC 2488 (2495) :
(2006) 4 SCC 658 [
LNIND 2006 SC 237 ].
85 Hari Shankar Singhania v. Gaur Hari Singhania , AIR

2006 SC 2488 (2495, 2496) :
(2006) 4 SCC 658 [
LNIND 2006 SC 237 ].
Page 23 of 34
86 Narayani v. Sreedharan,
AIR 2012 Ker 72 [
LNIND 2011 KER 754 ] (76) :
(2011) 4 KLJ 544 .
87 Potti Lakshmi Perumallu v. Potti Krishnavenamma , AIR

1965 SC 825 :
1965 (1) SCR 26 [
LNIND 1964 SC 198 ].
88 Kasturchand v. Kapurchand ,
AIR 1975 MP 136 [
LNIND 1974 MP 4 ] (141); Sahu Madho Das v. Mukand Ram ,
AIR
1955 SC 481 :
1955 (2) SCR 22 [
1972 SC 1279 .
89 Jagram Shakya v. Gokul Prasad ,

2008 (1) MPLJ 517 (520) (MP).
90 Mariyamma Thomas v. Remi Joseph ,

AIR 2009 (NOC) 1076 (Ker).
91 Nirmala Devi v. Additional Commissioner, Allahabad ,

AIR 2007 All 184 (184, 185).

AIR 1959 Ass 109 (111) (DB).

AIR 1959 Ass 109 (111) (DB).
94 Theresa Vas v. Allan J. Veigas , 2007

AIHC 3458 (3467) (Kant).
95 Jagram Shakya v. Gokul Prasad ,

AIR 2008 (NOC) 359 (MP).
96 Jagdish v. Ranwanti , AIR 2008 P&H 27 (30); Jagram Shakya v. Gokul

Prasad ,
AIR 2008 NOC 359 (MP).
1 Ganeshi v. Ashok, AIR 2011

SC 1340 (1342) : 2011 (4) SCALE 226.
2 Kokilambal v. N. Raman , AIR 2005

SC 2468 (2470) :
(2005) 11 SCC 234 [
LNIND 2005 SC 412 ].
Page 24 of 34
3 Lawton v. Campion , (1854) 18 Beav 87 ; Ponnammal v. R.

Srinivasarangan , AIR
1956 SC 162 (165).
4 Kader Mahideen v. K.P.M. Peer Mohamed , 2007 (5) Mad LJ 341

(347, 348) (Mad).
5 Gurcharan Ram v. Tejwant Singh ,

AIR 2008 (NOC) 1650 (P&H).
6 Hansa Industries Pvt. Ltd. v. Kidarsons Industries Pvt. Ltd ., AIR

2007 SC 18 (23, 24) :
(2006) 8 SCC 531 [
LNIND 2006 SC 822 ].
7 Pappayammal v. Palanisamy ,
AIR 2005 Mad 431 [
LNIND 2005 MAD 691 ] (440) :
(2005) 3 MLJ 32 [
LNIND 2005 MAD 691 ].
8 Pappayammal v. Palanisamy ,
AIR 2005 Mad 431 [
LNIND 2005 MAD 691 ] (442) :
(2005) 3 MLJ 32 [
LNIND 2005 MAD 691 ].
9 Tek Bahadur Bhujil v. Debi Singh , AIR

1966 SC 292 (295); Golak Behari Biswal v. Karunakar Rout ,
AIR 1987 Ori 236 [
LNIND 1987 ORI 137 ] (239).
10 Tek Bahadur v. Debi Singh , AIR

1966 SC 292 (295).
11 AIR
1914 PC 44 .
12 ILR 33 All 356 (PC).
13 Ram Charan v. Girja Nandini , AIR

1966 SC 323 (329) :
1965 (3) SCR 841 [
LNIND 1965 SC 141 ].
14 Dulal Chandra Chatterjee v. Moni Mohan Mukherjee , 2004 (4) Cal HN

563 (570) : 2005 (1) Cal LT 119 (DB) (Cal).
Page 25 of 34
15 Ram Charan v. Girja Nandini AIR ,

1966 SC 323 (329) :
1965 (3) SCR 841 [
LNIND 1965 SC 141 ]; Ranagasami Gounden v. Nachiappa
Gounden , 46 Ind App 72 : AIR
1918 PC 196 ).
16 K. Jagannathan v. A.M. Vasudevan , Chettiar

AIR 2001 Mad 184 [
LNIND 2001 MAD 92 ] (193) (DB) : 2001 (1) Mad LJ 614; Kale v.
Dy. Director of Consolidation , AIR
1976 SC 807 :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ].
17 Dhanalakshmi v. S. Thangavelu ,
AIR 2006 Mad 1 [
LNIND 2005 MAD 1433 ] (4) :
2006 AIHC 542 : 2005 (4) Mad LJ 300).
18 K. Jagannathan v. A.M. Vasudevan Chettiar,

AIR 2001 Mad 184 [
LNIND 2001 MAD 92 ] (193) (DB) :
2001 (2) Mad LW 492 [
19 Subbegowda v. Thimmegowda , AIR 2004

SC 2428 (2429) :
(2004) 9 SCC 734 [
LNIND 2004 SC 503 ].
20 Chetti Balakrishnamma v. Chetti Chandra Sekhar Rao ,

AIR 1991 Orissa 332 (336) (DB).
21 Golak Behari Biswal v. Karunakar Rout,

AIR 1987 Ori 236 [
LNIND 1987 ORI 137 ] (239); Ram Charan Das v. Girja Nandini
Devi , AIR
1966 SC 323 :
1965 (3) SCR 841 [
LNIND 1965 SC 141 ]; Sahu Madho Das v. Mukand Ram , AIR
1955 SC 481 :
(1955) 2 SCR 22 [
LNIND 1955 SC 25 ] ; Maturi Pullaiah v. Maturi Narasimham ,
AIR
1966 SC 1836 ; Kale v. Deputy Director of Consolidation , AIR
1976 SC 807 :
(1976) 3 SCC 119 [
LNIND 1976 SC 19 ].
22 Lala Om Prakash v. Hari Ram ,

AIR 2005 Delhi 190 [
LNIND 2004 DEL 1116 ] (193, 194, 195) : (2006) 1 AIR Kant
HCR 133 N :
(2005) 116 DLT 71 [
LNIND 2004 DEL 1116 ] (DB).
Page 26 of 34
23 Golak Behari Biswal v. Karunakar Rout

,
AIR 1987 Ori 236 [
LNIND 1987 ORI 137 ] (239); see also Draupadi v. Sambari ,
AIR 1958 Ori 242 [
LNIND 1958 ORI 24 ] (DB) (Dispute or question of antecedent
title not involved—No family settlement).
24 Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel , AIR

2006
SC 3304 (3312) :
(2006) 8 SCC 726 [
LNIND 2006 SC 670 ].
25 Kunche China Mangamma v. Kollapu Mangamma (died) ,

AIR 2005 NOC 573 : 2005
AIHC 3475 (3492) (AP).
26 Arukkani v. Subramaniam ,
AIR 2007 NOC 2118 (Mad).
27 Gangabai v. Punari Rajawa ,

AIR 1956 Nag 261 (262) : 1956 NLJ 427 :
ILR 1956 Nag 659 .
28 Kochunni Kochu v. Kunju Pillai , AIR 1956 Trav-Co. 217 (219, 220)
(DB); Chhatrapal Singh v. Sant Baksh Singh ,
AIR 1938 Oudh 190 .
29 S. Narayanasamy Gounder v. Adi Parasakthi Charitable Medical ,

AIR 2007 (NOC) 1858 (Mad).
30 Amteshwar Anand v. Virender Mohan Singh

AIR ,
2006 SC 151 :
(2006) 1 SCC 148 [
LNIND 2005 SC 812 ] ; Lichhami Devi v. Bharpai, 2012 AIR CC
595 (P&H).
31 Anup Kr. Debbarma v. Ahindra Kr. Dbbarma ,

AIR 2009 (NOC) 588 (Gauh) (DB).
32 D.V. Narayana Sah v. A.G. Nagammal ,

AIR 2009 (NOC) 1061 (Mad).
33 Zaheda Begum v. Lal Ahmed Khan ,

AIR 2010 A.P. 1 [
LNIND 2009 AP 582 ] (4) :
(2009) 6 ALD 432 :
(2009) 6 ALT 565 .
34 Subbegowda v. Thimmegowda , AIR 2004

SC 2428 (2429) :
Page 27 of 34
(2004) 9 SCC 734 [

LNIND 2004 SC 503 ].
35 Lichhami Devi v. Bharpai, 2012 AIR CC 595 (P&H).
36 S. Rathinam v. L.S. Mariappan , AIR 2007

SC 2134 (2138) :
(2007) 6 SCC 724 [
LNIND 2007 SC 732 ].

SC 2134 (2138) :
(2007) 6 SCC 724 [
LNIND 2007 SC 732 ].
38 Arukkani v. Subramaniam ,
AIR 2007 NOC 2118 (Mad). (Father cancelled family settlement
whereby he had given property to the plaintiff his son and excluded defendants his other sons on the ground that
plaintiff was not maintaining him. Cancellation proper.)
39 Sharda Devi v. Chandbala Devi ,

AIR 2007 Pat 162 (165):
(2007) 4 PLJR 2 .
40 Sharda Devi v. Chandbala Devi ,

AIR 2007 Pat 162 (165):
(2007) 4 PLJR 2 .

SC 2134 (2138) :
(2007) 6 SCC 724 [
LNIND 2007 SC 732 ] ; Beru Ram and Others v. Shankar Dass &
Others , AIR 1999 J&K 55; Asharfi Devi v. Prem Chand ,
AIR 1973 All 457 (464); Koragappa Gowda v. Jinnappa Gowda ,
1998
AIHC 1147 (1149) (Kant); Raja Surendera Vikram Singh v. Ram
Munia Kunwar ,
AIR 1944 Oudh 65 ; Lala Devi Dass v. Panna Lal , AIR 1959
J&K 62 (FB); Mahboob Sirfaz Vanth Sri Rajah Parthasarthy Apparao Zamindar of Badrachalam v. Sri Raja Venkatadri
Appa Rao ,
AIR 1922 Mad 457 ).

SC 2134 (2138) :
(2007) 6 SCC 724 [
LNIND 2007 SC 732 ] ).
43 Kalyani v. Narayanan , AIR 1980

SC 1173 (1179) : 1980 Supp SCC 298.

AIR 1956 Pat 345 (347)(DB) :
1956 BLJR 88 .
Page 28 of 34
45 Narukurti Sundaramma v. Pendurthi Venkata Rao ,

AIR 2006 NOC 499 (AP).
46 Rajammal v. Pappayee Ammal ,

AIR 2004 NOC 280 : (2002) 4 Cur CC 340 (Mad)..
47 Narayani v. Sreedharan,
AIR 2012 Ker 72 [
LNIND 2011 KER 754 ] (77) :
(2011) 4 KLJ 544 .
48 H.M. Patel v. State of Gujarat ,

AIR 2005 Guj 177 (178) :
(2006) 1 Land LR 126 ..

SC 2134 (2140) :
(2007) 6 SCC 724 [
LNIND 2007 SC 732 ]..
50 Arthur Mary Ammal Aruldoss Pillai ,

AIR 2004 Mad 57 [
LNIND 2003 MAD 1094 ] (66) : (2003) 3 Mad LJ 229 (DB).
51 Krishna Kumar Khemka v. Grindlays Bank P.L.C ., AIR

1991 SC 899 :
(1990) 3 SCC 669 [
LNIND 1990 SC 290 ] (677).
52 Venkayya v. Subbarao ,
AIR 1957 AP 619 [
LNIND 1955 AP 202 ] (622) (DB) : 1956 Andh WR 1093.
53 WILLIAMS on Real Property , 24th Ed., pages 1-3.
54 Baldeo Parshad v. Miller ,

(1904) 31 Cal 667 ; Clements v. Matthews,
(1883) 11 QBD 808 ; Holroyd v. Marshall,
(1862) 10 HL 191 ; Bandsidhar v. Sant Lal ,
(1887) 10 All 133 ; Misri Lal v. Mozhar Hossain ,
(1886) 13 Cal 262 .
55 (1881) 19 Ch. D. 342.
56 Mohendra Nath v. Kali Proshad ,

(1903) 30 Cal 265 .
57 (1869) 12 M.IA 286 : 2 Beng LR 111.

Page 29 of 34
58 (1872) 11 Beng LR 36.
59 H.V. Low & Co. v. Pulinbiharilal ,

(1932) 59 Cal 1372 .
60 J.K. Trust, Bombay v. Commissioner of Income Tax, Excess Profits

Tax, Bombay , AIR
1957 SC 846 :
1957 (32) ITR 535 [
LNIND 1957 SC 63 ] ; I.T. Commr v. P Krishna Warriar , AIR
1965 SC 59 (63) :
(1964) 8 SLR 36 .
61 Kamal Singh v. Kali Mahto ,

AIR 1955 Pat 402 (DB).
62 Shanmugasundaram Pillai v. M. Somasundaram Pillai , AIR 1955

NUC (Mad) 2419.

1974 SC 1728 :
(1974) 2 SCC 319 (329).
64 Joydev Sen v. State of West Bengal ,

AIR 2010 (NOC) 256 (Cal).
65 Lala Om Prakash v. Hari Ram,

AIR 2005 Delhi 190 [
LNIND 2004 DEL 1116 ] (193) : (2006) 1 AIR Kant HCR 133 N :
(2005) 116 DLT 71 [
LNIND 2004 DEL 1116 ] (DB).
66 Delhi Towers Ltd. v. G.N.C.T. of Delhi ,

2009 (165) DLT 418 (Del).
67 State of Rajasthan v. Bhilwara Spinners Ltd., AIR

2001 Raj 184 (198) (DB) :
2001 (2) Raj LR 311 .
68 State of Rajasthan v. Bhilwara Spinners Ltd., AIR

2001 Raj 184 (200) (DB) :
2001 (3) Raj LW 1398 .

AIR 1971 All 457 (464).

AIR 1971 All 457 (464); Kalika Singh v. Radhakrishna Ji
Maharaj,
Page 30 of 34
AIR 1946 Oudh 256 ; See also Kumar Pashupati Nath Mullah v.
State of W.B., AIR
1974 SC 663 :
(1974) 4 SCC 696 [
LNIND 1974 SC 162 ].
71 Narasimha v. Venkatalingum , (1927) 50 Mad 687 ; Harihar v.

Gurugranth ,
AIR 1930 Pat 610 .
72 Narasimha v. Venkatalingum , (1927) 50 Mad 687 ; Tammireddy v.

Gangireddy , (1922) 45 Mad 281 ; Ramalinga v. Sivachidambara , (1919) 42 Mad 440 ; Pallayya v. Ramavadhanulu,
(1903) 13 MLJ 364 [
73 Pramatha Nath v. Pradyumna ,

(1925) 52 Cal 809 : 52 IA 245; Jodhi Rai v. Basdeo Prasad ,
(1911) 33 All 735 ; Bhopatrao v. Shri Ramchandra ,
AIR 1926 Nag 469 .
74 Rambrahma v. Kedar Nath, (1922) 36 CLJ 478.
75 Shaukat Begam v. Shri Thakurji ,

AIR 1931 Oudh 14 .
76
(1910) 37 Cal 128 .
77 V. Pattabhirama Rao v. Sri Ramanuja G. & R Factory (P) Ltd,

1984 AP 176 (181) (DB).
78 Usha Rani Kundu v. Agradut Sangha ,

AIR 2006 NOC 911 (Cal- DB) : 2006 (3) Cal HN 77 :
2006 (1) Cal LJ 627 [
LNIND 2006 CAL 154 ].
79
(1922) 24 Bom LR 861 [
LNIND 1922 BOM 113 ].
80 (1907) 31 Bom 165.
81 Binny Ltd. v. Alliance Properties & Industries Ltd. , 2006 (3) Cal HN
322 (326) (Cal-DB)..
82 Jugalkishore v. Rao Cotton Co. Ltd., AIR

1955 SC 376 (398) :
1955 (1) SCR 1369 [
LNIND 1955 SC 21 ].
Page 31 of 34
83 Chief Controlling Revenue Authority, Madras v. Sudarshan Picture ,

AIR 1968 Mad 319 [
LNIND 1967 MAD 57 ] (FB).
84 Jugalkishore v. Rao Cotton Co.Ltd., AIR

1955 SC 376 (398) :
1955 (1) SCR 1369 [
LNIND 1955 SC 21 ].
85 Jugalkishore v. Rao Cotton Co.Ltd., AIR

1955 SC 376 (379) :
1955 (1) SCR 1369 [
LNIND 1955 SC 21 ].
86 Bai Mahakore v. Bai Mangla , (1911) 35 Bom 403 ; Essar Shipping

Ltd. v. R.C. Coastal Exports Pvt. Ltd .,
2009 AIHC 177 (181) (Bom).
87 Bal Kishore v. Braham Das , 2002

AIHC 3819 (3820) (HP-DB).
88 Bal Kishore v. Braham Das , 2002

AIHC 3819 (3820) (HP-DB).
89 Satyawan v. Rahbir ,
(2002-2) Punj LR 467 (474) (P&H).
90 State of Rajasthan v. Bhilwara Spinners Ltd ., AIR

2001 Raj 184 :
(2001) 4 WLC 14 :
(2001) 2 WLN 536 (DB).
91 Avvamma M. Taqlawar v. State of Karnataka ,

AIR 2006 NOC 1598 : 2006
AIHC 3159 (3161) (Kar).
92 Shankar Yadav v. State of Jharkhand ,

AIR 2012 Jhar 21 [
LNIND 2011 JHAR 992 ] (26).
93 Dharamsheela Kumari v. Union of India,

2011 (1) Pat LJR 600 (602) (Pat) (DB) (2004 AIR SCW 5490
relied on.
1 Tuntun Das v. Union of India ,

2007 (1) PLJR 82 (84, 85) (DB) (Pat); Suman Verma v. Union of
India,
(2004) 12 SCC 58 .
2 Raj Kumar v. Hardwari ,

2007 (2) Punj LR 583 (586) (P&H).
Page 32 of 34
3 Brisa Munde v. Chando KumariAIR ,

1996 SC 704 (706) :
(1996) 9 SCC 545 [
LNIND 1995 SC 1132 ] ; Pandey Oraon v. Ram Chander Sahu ,
AIR
1992 SC 195 : 1991 AIR SCW 2909 : 1992 Suppl (2) SCC 77.
4 V.B. Rangaraj v. V.B. Gopalakrishnan, AIR

1992 SC 453 (455) :
(1992) 1 SCC 160 [
LNIND 1991 SC 637 ].
5 Vazeer Bee v. Putti Begum ,

AIR 1986 AP 159 [
LNIND 1984 AP 323 ] (161) : 1985 (2) APLJ (HC) 90.

AIR 1986 AP 159 [
LNIND 1984 AP 323 ] (161) : 1985 (2) APLJ (HC) 90.

AIR 1986 AP 159 [
LNIND 1984 AP 323 ] (162) : 1985 (2) APLJ (HC) 90.
8 Baidyanath v. Jai Kumari ,

AIR 1957 Pat 706 (709) (DB) :
1957 BLJR 109 ; Sudhir Kumar v. Pribhuti Bhusan ,
AIR 1956 Cal 668 [
LNIND 1955 CAL 198 ]: 60 CWN 222.
9 Perumal Ammal v. Perumal Naicker ,

AIR 1921 Mad 137 : ILR 44 Mad 196 : 611 C 461.
10 M. Krisha Rao v. M.L. Narasikha

, Rao
AIR 2003 AP 498 [
LNIND 2003 AP 535 ] (499, 500) (DB); Subbanna v. Bala Subba
Reddy ,
AIR 1945 Mad 142 [
LNIND 1944 MAD 237 ]:
ILR 1945 Mad 610 (FB); A.S. Krishna Murthy v. C.N. Revanna,
2009 AIHC 2638 (Kant) (DB).
11 Commer of I.T., W.B. v. Juggilal , AIR

1967 SC 401 (404, 405) :
(1967) 1 SCR 784 [
LNIND 1966 SC 243 ].
12 K.H. Gwnder v. H.B. Gowder ,

AIR 1960 Mad 33 [
LNIND 1959 MAD 2 ] (DB) :
(1959) 2 MLJ 324 [
LNIND 1959 MAD 2 ] :
ILR 1959 Mad 552 .
Page 33 of 34
13 A.S. Krishna Murthy v. C.N. Revanna, 2009

AIHC 2638 (2645) (Kant) (DB) :
AIR 2009 (NOC) 2692 .
14 Suresh Chand Gupta v. Man Mohan Gupta ,

AIR 2004 Delhi 282 (288) :
(2003) 107 DLT 1160 [
LNIND 2003 DEL 866 ].
15 Mary George v. Lilly,

2009 (1) KLT 265 (272) :
ILR 2009 (1) Ker 173 .
16 R. Sarvadamulu v. Special Tahsildar (Land Acquisition), Madras, 2000

AIHC 1176 (1192) (Mad).
17 A.S. Krishna Murthy v. C.N. Ravanna and other ,

2009 (5) Kar LJ 454 [
LNIND 2009 KANT 187 ] (Kar).
18 Commr. of I.T., W.B. v. Juggilal , AIR

1967 SC 401 (405) :
(1967) 1 SCR 784 [
LNIND 1966 SC 243 ].
19 Gangubai Baqpassa Hadapad v. Mahagundappa Shankarappa

Hadapad ,
AIR 2006 NOC 142 (Kant) : 2006 (1) AIR Kar 117 : 2006 AIHC
393 :
2006 (5) Kant LJ 428 (Kant-DB).
20 Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak , AIR 2004

SC 1893 (1895) :
(2004) 3 SCC 402 [
LNIND 2004 SC 1328 ].
21 Kuppuswami v. Arumugam , AIR 1967

SC 1395 (1397) : 1967 (1) SCR 275.

SC 1395 (1397) : 1967 (1) SCR 275.
23 Provident Investment Co. v. I.T. Commr. ,

AIR 1954 Bom 95 [
LNIND 1953 BOM 42 ] (99) (DB) : 55 Bom HR 804.
24 Khurshid Bano Mohd. Ayub v. Mohd. Afsar Mohd. Samsher ,

2008 (2) Bom CR 196 [
LNIND 2007 NGP 586 ] (197) (Bom).
Page 34 of 34
25 Nagar Palika Parishad Seoni v. State of M.P .,

2013(2) MPLJ 157 (163) :
AIR 2013 MP 56 .
26 Tuntun Das v. Union of India ,

2007 (1) PLJR 82 (84, 85) (Pat-DB).
27 Hameed v. Jayabharat Credit & Investment Co. Ltd.,

AIR 1986 Ker 206 [
LNIND 1985 KER 332 ] (208, 209) :
1986 Ker LT 997 [
LNIND 1985 KER 332 ].
28 Chumar v. Narayanan Nair ,

AIR 1986 Ker 236 [
LNIND 1985 KER 294 ] (237).
29 Gulwant Singh v.Girbakshish Singh,

(2010-4) Punj LR 412 (414) (P&H).
30 U.P.S.E. Board v. Ram Barai Prasad ,

AIR 1985 All 265 [
LNIND 1984 SC 342 ] (270).
31 Chief Controlling Revenue Authority, Madras v. Sudarshan Picture ,

AIR 1968 Mad 319 [
LNIND 1967 MAD 57 ] (FB).

AIR 1985 All 265 [
LNIND 1984 SC 342 ] (270).
33 Ismail v. Hubli Dharwad Urban Development Authority, Hubli,

2007 (3) Kant LJ 57 (63) (Kant).
End of Document
Darashaw Vakil
S. 6.
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,—
What may be transferred.
( 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 any one except the owner of the property affected thereby;
(c) An easement cannot be transferred apart from the dominant heritage;
(d) All interest in property restricted in its enjoyment to the owner personally
cannot be transferred by him;
34 [(dd) A right to future maintenance, in

whatsoever manner arising, secured or determined, cannot be transferred;]
(e) A mere right to sue 35 [* * *] 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, 36 [naval], 37 [air-force] and civil pensioners of the 38 [Government] and political pensions cannot
be transferred;
(h) No transfer can be made (1) in so far as it is opposed to the nature of the
interest affected thereby, or (2) 39 [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;
40 [(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.]
Page 2 of 2
35 The words "for compensation for a fraud or for harm illegally caused" omitted by Act 2 of 1900,
Section 3.
36 Ins. by Act 35 of 1934, Section 2 and Sch.
37 Ins. by Act 10 of 1927, Section 2 and Sch I.
38 The word "Government" successively subs. by the A.O. 1937 and the A.O. 1950 to read as
above.
39 Subs. by Act 2 of 1900, Section 3, for "for an illegal purpose".
40 Added by Act 3 of 1885, Section 4.
End of Document
S. 6 (A).
Darashaw Vakil
COMMENTS
Legislative Changes. —Clause (dd) was inserted by Section 7 of the Transfer of Property
(Amendment) Act, 1929 (20 of 1929). The Select Committee observed :—
" Clause 6, Section 6. — Section 6, which enumerates property of different kinds, which cannot be transferred,
includes in clause (d) an interest in property restricted in its enjoyment to the owner personally. A right to receive
maintenance is a personal right, although any particular property or the income thereof may be charged with it. It is
in accordance with public policy that these rights, which are generally created for the maintenance or personal
enjoyment of a qualified owner e.g., a Hindu female ought to be inalienable; but in some cases it has been held that
if the amount of maintenance is fixed by an agreement or by a decree, it can be assigned. 41 Although an
agreement or a decree would make such right definite, it is nevertheless a right created for the personal benefit of
the qualified owner and should not be alienable.
Section 60 of the Civil Procedure Code , which protects such right from the process of a Civil Court, does
not make any exception in the case of maintenance fixed by agreement or decree. The above reasoning, however,
does not apply to arrears of maintenance, which have accrued due. To make the position clear, we suggest that the
following clause should be inserted as clause (dd),viz. : —
"(dd) a right to future maintenance in whatsoever manner arising or secured or determined cannot be transferred."
See Notes on Clauses. 42
In clause (e) the words "for compensation for a fraud or harm illegally caused" were omitted by
Section 3(i) of the Transfer of Property Act (2 of 1900). The words "air force" in clause (g) were inserted
by Section 2 of Schedule I of the Repealing and
Amending Act of 1927 (10 of 1927). In clause (h) the words "for an illegal purpose" were omitted and the
words "for unlawful object or consideration" within the meaning of
Section 23 of the Indian Contract Act, 1872 , were inserted instead of them by
Section 3 (ii) of the Transfer of Property Act , 1900 (2 of 1900). Clause (i) was added by
Section 4 of the Transfer of Property Act (1882) Amendment Act, 1885 (3 of 1885).
Scope of the section. —The section deals with what may be the subject of transfer under the Act. It
proceeds on the maxim " expressio unius exclusio alterius " in that every property except those specified in the
section may be transferred. The word ‘property’ as here used includes interest in property. As already seen in
Section 5 under the caption "property" that only is a man’s property which is the object of ownership of his part
accompanied by possession or enjoyment of it to the exclusion of all others and giving him a free power of
disposition. Where any one of the three ingredients are not absolute in their nature the usual term "property" used
to denote the object or ownership is not used but the phrase "interest in property" is used, thereby connoting that
Page 2 of 69
S. 6 (A).
the essential elements of property are wanting and that the right is restricted or limited in some sense, hence the
right of a mortgagee in property is denoted by the word ‘interest’ in property. So also is the case of a lessee, co-
sharer or co-owner or a Hindu coparcener or a Hindu widow whose right to maintenance is made chargeable on the
property.
The transfer of the property can be prohibited only by provision of the law and not by the judgment or direction
referred in the writ petition unde r 226 of the
Constitution of India .43
The transfer of ownership is distinct and different from transfer of interest in the property. 44 A transferor cannot
transfer more than/better than title he has interest in the property. 45 A licensee of property would not be competent
to transfer leasehold rights in the property. 46
Wide connotation of "property" in Section 6 includes not merely shares as transferable movable property but would
cover as a separable form of property, a right to obtain shares which may be antecedent to the accrual of rights of a
shareholder upon the grant of a share certificate in accordance with the articles of association of a company. 47 In
the instant case through the of the gift deed, donor had very clearly transferred to the donees ownership and title in
respect of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in the
property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no
prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment. 48
In equity there can be a valid transfer of property, which can be acquired afterwards even though the creditor will
have to wait till property comes into existence. There is no bar to creating an assignment of a fund in favour of a
creditor even though the fund, ultimately becoming available may overtop the creditor’s due. 49 The transfers of
nonexistent, conveniently called acquired property, provided they are not of the nature contemplated in Section 6
(a) are perfectly valid. 50
When once the settlement deed is made in favour of the plaintiff to the entire extent of 48 guntas , the land which is
retained by the settlor to the extent of 10 guntas as a life interest, is only a limited estate and not the absolute right
and subsequently, any such settlement made in favour of the defendant to the extent of 10 guntas out of 48 guntas
was void. 51
Code of Civil Procedure, 1908 .—Section 60 of the Code gives particulars of properties not liable to
attachment or sale. No sale can take place without an attachment but the decisions under this section of the Code
cannot be appropriately applied in dealing with properties declared to be non-transferable under
Section 6 of the Transfer of Property Act . Much under the law cannot be sold in execution which is
capable of being dealt with under a voluntary transfer.52 The prohibitions against attachment in Section 60 of the
Code and the prohibition against transfer in Section 6 of the present Act rest on grounds of public policy. Prohibition
against attachment so far as it relates to some properties mentioned in Section 60 of the Code is not intended to
interfere with the right of the owner to effect private alienations of those properties. 53
What is property. —The interest of a person’s holding on which he has planted a grove. 54 A Hindu
religious endowment cannot be sold or permanently alienated though the income may be temporarily pledged for
necessary purposes, such as repairs of the temple. 55 A sale by Receiver of the property of an insolvent when his
claim to it is in dispute is void. 56 In the term "property" may be included a mortgagee’s rights of his mortgagor. 57
Page 3 of 69
S. 6 (A).
The equity of redemption, 58 a lease from year to year, a hat , a vested remainder, a reversion expectant on the
determination of a lease, a Hindu idol, 59 a contingent remainder, an estate of an adopted son postponed during the
life of the widow, 60 vested right in income and contingent right in corpus of settled property. 61 Right to receive
offerings made at a temple independent of an obligation to render services involving qualifications of a personal
nature is property. 62 Remuneration which Maha Brahmins receive for services rendered at Hindu funerals is
property. 63 Offerings made at Mahomedan shrine 64 or in a Hindu temple unconnected with personal service is
property. 65 Right of worship is property but has not all the incidents of property. 66 A distinction must be drawn
between cases where emoluments are attached to a priestly office and where offerings are made to a deity and the
persons who receive the same are not to render services of a personal nature as consideration for receipt of the
offering. The former right is not ordinarily transferable while the latter is. 67 A document by which a Hindu widow
consents to give possession of the property to the reversioner is not a transfer of property. 68 Whatever is
compulsorily registrable under Section 17 of the Indian
Registration Act, 1908 , would be property. A mortgage of a chargee’s rights is valid in law. The right to
hold immovable property as security for repayment of a loan and the further rights corresponding to the rights of a
mortgagee given to a chargee are property within the meaning ofSections 5 and 6.69 A deed of relinquishment does
not confer a title and that title to land cannot pass by admission when the statute requires a deed and so parties
cannot effect by release what could only be effected by a conveyance. 70
Know how of a mining company is neither a capital asset nor a tangible asset and is not capable of being sold. 71
Passage provided to a member of the public services is not property. 72
Stamp Vendor’s licence is not property, hence it cannot be inherited. 73
Statutory rights. —The statutory rights of claimants to compensation, which crystallize on assessment
and verification of claims, are separate rights to property of each claimant covered by the wide definition of
"property" in
Section 6 of the Transfer of Property Act . They cannot evaporate or vanish.74
What may be transferred. —According to the general law all property is transferable under this section
75 unless there is some legal restriction to the contrary. 76 Section 6 makes property of any kind alienable subject to
the exception set out which cannot be supposed to be selected by reason of the future character of the chances.
The truth is that an attempted conveyance of non-existent property may, when made for consideration, be valid as a
contract and when the object comes into existence equity fastens upon the property and the contract to assign
becomes a complete assignment. This was precisely the point of view of the Judicial Committee in Budhoo Singh v.
Perhlad Sein . 77 The principle underlying Holroyd v. Marshall and Tailby v. Official Receiver makes it clear that an
instrument which purports to be a transfer of a chance or possibility mentioned in Section 6, clause (a), can as such
have no operation. Thus when an instrument of mortgage was executed by a person next in succession it was ruled
that a mortgage suit could not be instituted against him after his succession. 78 To the same effect was the decision
in Nund Kishore v. Kanee Ram . 79 Further illustrations of this principle may be found in the undermentioned cases.
80 It is well settled that a transfer of property clearly contemplates that the transferor has an interest in the property,
which is sought to be conveyed. He cannot sever from his rights in the property and yet convey it to the transferee.
81 An agreement to convey property to be acquired in future was held not enforceable, as the
T.P. Act had not been enforced in the State of Travancore- Cochin.82
A decree is a transferable property, hence, it can be transferred. 83

Page 4 of 69
S. 6 (A).
Clause (a)—Chance of an heir apparent etc.
Distinction between Sections 6 (a) and 43. —Transfers which come within the purview of Section 6
(a) are void ab initio and do not include the case of a person who transfers property which he erroneously believes
to be his own. The latter transfers are governed by Section 43. 84
Sections 6(a) 43 relate to two different subjects, and there is no conflict between them. Section 6 (a) deals within
certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests.
Section 43 deals with representations as to title made by a transferor subsequently acquired. Section 6 (a) enacts a
rule of substantive law, while Section 43 enacts a rule of estoppel, which is one of evidence. The two provisions
operate on different fields, and under different conditions, and there can be no ground for reading a conflict
between them or for cutting down the ambit of the one by reference to the other. Both of them can be given full
effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes
successionis at the date of transfer are not within the protection afforded by Section 43 would destroy its utility to a
large extent. 85 Where a transferor has only a spes successionis ts, representing that he has a present interest, the
transferee can invoke the benefit of Section 43, if he can show that acting on that representation he has taken the
transfer in good faith and for consideration. 86
S. 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to
allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts
bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee
has been misled. 87
Prior to 1929 Amendment, the relevant words of Section 43 were "where a person erroneously represents", and
now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that
emphasizes that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently
in making the representation, and that what is material is that he did make a representation and the transferee has
acted on it. Where the transferee knew as a fact that the transferor did not possess the title, which he represents,
he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no
application, and the transfer will fail under Section 6 (a). But where the transferee does act on the representation,
there is no reason why he should not have the benefit of the equitable doctrine embodied in Section 43, however
fraudulent the act of the transferor might have been. 88
Interests vested or contingent. —In dealing with clause (a) the distinction between vested interest,
contingent interest and spes successionis has to be noted. An estate or interest is vested as distinguished from
contingent, either when enjoyment of it is presently conferred or when its enjoyment is postponed, but the time of
enjoyment will certainly come to pass; in other words, an estate or interest is vested when there is an immediate
right of present enjoyment or a present right of future enjoyment. An estate or interest is contingent if the right of
enjoyment is made to depend upon some event or condition which may or may not happen or be performed, or in
the case of a gift to take effect in future, it cannot be ascertained in the meantime whether there will be anyone to
take the gift; in other words, an estate or interest is contingent when the right of enjoyment is to accrue, on an event
which is dubious or uncertain. And as regards certainty, the law does not regard as uncertain the event of a person
attaining a given age or of the death of somebody beyond which his enjoyment is postponed; because if he lives
long enough the event is sure to happen. A spes successionis is merely an expectation or hope of succeeding to
the property; a chance or possibility which may be defeated by an act of somebody else. 89 In the case of a gift to a
person contingent on his surviving up to a certain date, his interest in the corpus cannot be said to be a mere spes
Page 5 of 69
S. 6 (A).
successions. 90 Transfer of an estate vested 91 or contingent 92 or where it consists of a vested right in income and
contingent right in corpus of settled property 93 is not obnoxious to the rule in this clause.
The interest of a reversioner is a spes successionis within the meaning of

Section 6 of the T.P. Act . A transfer of aspes successionis is a nullity and it has no effect in law. 94
During the lifetime of the widow the reversioner has no interest in praesenti in the suit property. Her right is only
Spes Successionis or a mere chance of succession, within the meaning of
Section 6 of the Transfer of Property Act . It is not a vested interest, but only an interest expectant on the
death of a limited heir. It cannot, therefore, be sold, mortgaged or assigned, nor can it be relinquished. A transfer of
aspes successionis is nullity. 95
Where by way of family settlement the parties agreed not to claim share in the property in the possession of widows
during the life time of the widows, but after widows’ death they would share the property equally, it was not a
transfer of a spes successionists or an agreement to transfer the same, was not hit by Section 6 (a),
T.P. Act and held valid and binding.96
Where the divorce deed between the plaintiff’s father and mother certain property was given to the plaintiff’s mother
for the maintenance of the plaintiff he being minor at that time, with stipulation that the plaintiff would not be entitled
to any share in the property of his father, on his father’s death the plaintiff was entitled to have one half share in the
property of his father. On the date of execution of divorce deed the plaintiff had no right in the property of his father
but only a chance of succession in the property of his father in case he died intestate. This was clearly not an
interest in the property which was capable of being transferred. 97
A mortgage of the income derivable in future from the scavenging work to be done would be invalid being an
expectancy or a possibility within the meaning of Section 6 (a),
T.P. Act .98
A compromise would contravene Section 6 (a) only when the object is to deal with a spes successionis. 99 When an
agreement decides an antecedent title to the estate, in the hands of the widow, the compromise is valid even
though indirectly it affects the rights of the reversioners. 1
Clause (a)—Expectancies or Possibilities.
Heir-apparent. —An heir-apparent is one whose right to inherit is indefeasible provided he outlives the
ancestor.
Under
Section 6 (a) of the T.P. Act and under the principles of Mohammedan Law, an heir apparent cannot
transfer his chance of succeeding to an estate.2
Once the heir apparent has relinquished the possibility of her right of inheritance for a consideration, the same is
not covered under Section 6 (a)of the
Page 6 of 69
S. 6 (A).
Transfer of Property Act , but, the principle of estoppel under Section 115 115, 1972 would apply.3
Legacy. —This is a gift by will of property. It may be general, specific or demonstrative. 4 Residue is not
legacy. 5
The chance. —Known to English Law as spes successionis , it is not capable of valid assignment and
any purported assignment thereof operates only by way of covenant which will not be enforced in favour of a
volunteer. 6 A testator bequeathed a sum of money to his daughter for life and in case she died without issue for
her next of kin. During the lifetime of the daughter her mother as presumptive next of kin, by a voluntary deed,
assigned her expectant interest in reversion to the husband. Held, on the death of the daughter without issue, the
assignment operated only as a covenant and being voluntary was not enforceable. 7 A spes successionis is not a
title to the property by English Law and confers no interest in property. 8
Bare expectation of future right. —There is a distinction between an interest that has arisen and is
represented and an interest that has not arisen and that never may arise but with regard to which there is a remote
possibility that the event which has not occurred, and upon which it is made to hang, may hereafter occur. The latter
is not an interest, it is not a right, it is nothing more than a bare expectation of a future right. The expectation of a
future interest, or rather of a future event that may give an interest, is not a thing which would justify a Court of
Equity in entertaining a suit at the instance of a party having that and nothing more. A testator by his will
bequeathed a legacy to a specified nephew on his marrying a specified niece of the testator to be held in trust for
him and after his decease for his eldest or only child who should attain twenty-one, directing that if he did not marry
the particular niece the bequest was not to take effect. The nephew married, with the testator’s assent, a person
other than the niece. He died leaving the nephew, nephew’s wife and son of the nephew and also the named niece
who was unmarried. Held, the possibility of the nephew marrying the niece was not sufficient to entitle the son to file
a bill to have his share secured. 9 The words "in expectancy" seem to have been taken from the Infants Settlements
Act, 1855 (18 and 19 Vict. c. 43), Section 1. In re Johnson 10 affords an interpretation of the words as
used in that section. They are to be found in Key and Elphinstone’s Precedents in Conveyancing, 9th Ed., Vol. II, p.
577.
There is a distinction between possibility coupled with interest and bare or naked possibility, such as the hope of
inheritance entertained by the heir. 11 A provision made for the division of property between the parties on their
death would not offend the provisions of
Section 6 (a) of T.P. Act .12 Where a person files suit claiming past and future maintenance, pending suit
the claim cannot be assigned. 13
A bare renunciation of an expectation to inherit cannot bind the expectant heir’s conduct in future. But, if the
expectant heir goes further and receives consideration and so conduct himself as to mislead an owner into not
making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it
does unquestionably vest in him, the principle of estoppel is attracted. 14 Where the relinquishment is of a
contingent right of inheritance of a Muhammedan heir, it is invalid, but where supported by consideration e.g., family
settlement for keeping peace in family, it is valid. 15
Where a person transfers property representing that he has a present interest therein, whereas he has, in fact, only
a spes successionis , the transferee is entitled to the benefit of Sections 43, if he has taken the transfer on the faith
of that representation and for consideration. 16
Page 7 of 69
S. 6 (A).
Possibility. —At law a possibility could not be assigned though it might be released. 17 A person
attempting to deal with it has no present interest. He has an expectation of the possibility of a future event which if it
occurs may give birth to an interest. 18 Any other possibility of a like nature referred to in the section is a possibility
of a nature akin to the two chances expressly mentioned. The possibility in clause (a) is "mere", that is, a bare or
naked possibility such as the hope of an inheritance entertained by the heir distinguished from a possibility coupled
with an interest, such as a contingent remainder, executory devise springing or shifting use. The latter class may
with propriety be denominated contingent interests, the former mere expectancies, inasmuch as a possibility
coupled with an interest is more than a possibility and is a present devisable interest. 19 While the expectancy of an
heir-apparent during the lifetime of his ancestor is less than a possibility, being but a mere hope or anticipation. It is
indisputable law that no one can have any estate or interest at law or in equity, contingent or other, in the property
of a living person to which he hopes to succeed as heir-at-law or next of kin; during the life of such person no one
can have more than a spes successionis , an expectation or hope of succeeding to his property nemo est hoeres
viventis . This doctrine is not peculiar to English jurisprudence. The right to receive offerings from pilgrims resorting
to temples or shrines is inalienable because "the chance that future worshippers will give offerings is a mere
possibility". 20 Where the right to receive offerings cannot be separated from the duty of officiating at the worship
the law disfavours the transfer of such emoluments. 21 An assignment of rent does not operate in respect of future
possible leases that may come into existence as a result of renewal. 22 The right of a vendor of immovable property
to the purchase money payable on execution of the conveyance is a mere possibility. 23
Where an agreement to sale is in respect of evacuee property, on the date of the agreement the vendor had given
the highest bid in the auction of the property, it cannot be said that the vendor had no title in the property, he had a
"imperfect title" within the meaning of
Section 18 of the Specific Relief Act, 1963 . Suit for specific performance of the contract is maintainable.
The possibility of the vendors acquiring the property which he had agreed to sale is neither remote nor of the same
category as enunciated in Section 6 (a)of the
Transfer of Property Act which deals with the cases of the nature of "Spec Successionis ", a mere
chance of succession. Though on the date of the agreement for sale, the execution of the sale deed might have
depended on the ultimate sanction of the Custodian General but since the vendor - auctioner purchaser had already
paid a portion of the sale price and as such the sanction did not depend on a mere chance or whim of the
Custodian General. 24
By mutual consent the two widows could enter into any arrangement regarding their respective rights in the
properties during the continuance of the widow’s estate, and could absolutely divide the properties, so as to
preclude the right of survivorship of each to the portion allotted to the other. 25 Likewise, two daughters succeeding
to their father’s estate as joint tenants with right of survivorship could enter into a similar arrangement. 26 Such an
arrangement was not repugnant to Section 6 (a). The interest of each widow in the properties inherited by her was
property, and this property together with the incidental right of survivorship could be lawfully transferred. 27
Section 6(a) of the T.P. Act prohibits the transfer of the bare chance of the surviving widow taking the
entire estate as the next heir of her husband on the death of the cowidow, but it does not prohibit the transfer by the
widow of her present interest in the properties inherited by her together with the incidental right of survivorship. The
widows were competent to partition the properties and allot separate portions to each, and incidental to such an
allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other.28
Where co-widows, who inherit property of their husband as joint-tenants and have rights of survivorship, affect
absolute partition of their property and relinquish the right of survivorship such an arrangement does not offend
Section 6 (a). 29
Page 8 of 69
S. 6 (A).
Offerings to a temple. —A sacerdotal office which belongs to the priest of a particular temple cannot be
transferred. 30 So also offerings from pilgrims resorting to a temple or shrine. 31 Again, offerings made to a deity
and appropriated by the officiating priest is not a right in which he is entitled to traffic. 32 The Allahabad High Court,
referring to the case of Puncha Thakur v. Bindeswari , 33 observed that the offerings at a temple do not stand on
the same basis as remuneration which Maha Brahmins receive for the services they perform at a Hindu funeral,
holding that there is nothing in law to prevent a Maha Brahmin from mortgaging his right to offerings receivable by
him in his personal capacity. 34 In a later case 35 the same Court, following its earlier decision, 36 drew a distinction
between cases in which emoluments are attached to a priestly office and cases where offerings are made to a deity
and the persons who receive the same have not to render services of a personal nature as a consideration for the
receipt of the offerings, and held that emoluments of the former kind were not transferable while the latter were.
Although the right to receive the offerings from the pilgrims resorting to shrine, depends upon the chance that future
pilgrims and worshippers will give offerings, the right to receive the offerings made is a valuable, definite, and
tangible right and is not merely a possibility of the nature referred to in Section 6 (a)of the
In a recent case, the Allahabad High Court has held that the right to receive offerings of a temple is dependent upon
the right of performance of pooja , which right is non alienable and as such cannot be transferred. 38
The right of the baridars to receive offerings of deity is transferable. 39
Agreement between expectants. —A fair agreement between expectants or their heirs to divide the
property which might be left between them or to any one of them has been held not to be contrary to public policy
and capable of being enforced in equity. In a case 40 before the
Transfer of Property Act , a compromise deed was held not a conveyance of expectant right but an
agreement between expectants to divide a particular property in a certain way on the happening of a particular
contingency. This was mentioned with approval in a subsequent case41 by the Allahabad High Court.
The co-widows may enter into a mutual arrangement, the effect of which would be to preclude the right of
survivorship each to the portion allotted to other. 42
Hindu Law. —The interest of a reversioner does not constitute a present or vested interest in the estate
which is completely represented by the female heiress, during her lifetime, with a restricted power of alienation. It is
neither devisable nor transmissible by inheritance. Ordinarily he is an expectant heir with a spes successionis . 43 If
a reversioner proposes to relinquish his interest in favour of the widow, the widow’s interest is not thereby enlarged,
since the reversioner has nothing to relinquish. 44 A transfer of an expectancy which has most frequently come
before the Courts is a transfer by a Hindu reversioner. The exposition of the law in clause (a) will be found in an
elaborate judgment of Mookerjee, A.C.J., in Annanda Mohan Roy v. Gour Mohan Mallik 45 affirmed on
appeal by the Judicial Committee of the Privy Council. 46 That was a case for specific performance of the contract
for sale executed by defendant on the 7th May 1908 and confirmed on the 20th November 1909. The subject-
matter was a share in an estate left by one G , the maternal uncle of the defendant, who died intestate on the 25th
May 1902 leaving two widows and five nephews (sister’s sons) including the defendant. After the death of G , a will
was set up which was pronounced a forgery by the Judicial Committee so that the estate left by G vested in the two
widows with the right of survivorship inter se . On the death of both of them the estate would pass to such of the
nephews as were alive when the succession opened. Pending the litigation mentioned, the defendant agreed to
convey for consideration to the plaintiff his interest in the estate of his paternal uncle, whether it was on the basis of
the will or on the basis of his position as a reversionary heir. On the pronouncement above mentioned against the
will, the defendant executed a supplementary agreement on the 20th November 1900 to convey his interest in the
estate of his maternal uncle whenever and howsoever which may vest in him. In consequence of diverse events
which thereafter happened, the defendant obtained one-fifth of a half share of the estate of G , under a consent
Page 9 of 69
S. 6 (A).
decree whereupon the plaintiff sought to enforce the agreement for sale of the 7th May 1908, confirmed on the 20th
of November 1909. His claim was resisted on the ground that it was void, illegal and unenforceable, as it was an
expectancy. It was held that so long as the estate vested in a female heiress the interest of the reversioner was a
mere chance of succession and could not form the subject of any contract, surrender or disposal. This view is now
generally accepted in nearly all the High Courts 47 except in the Punjab, as hereafter stated.
The true position of a Hindu reversioner formed the subject of consideration by the Judicial Committee on more
than one occasion during the last quarter of a century. He could not by Hindu Law make a disposition of or "bind his
expectant interest" or his "future rights". 48 Following this, it was held that the interest of a Hindu reversioner
expectant on the death of a Hindu female could not be validly mortgaged by him, 49 and the contrary opinion
expressed in Brahmadeo v. Harjan 50 must be regarded as overruled. The same view was reiterated by
the Judicial Committee holding that his reversionary right is a mere possibility or spes successionis . 51 In Janakai
v. Narayanasami , 52 LORD SHAW described the situation of the reversionary heirs as having those contingent
interests which, though differentiated little if at all from a spes successionis , is recognized by Courts of Law having
a right to demand that the estate be kept free from waste. Although entitled to appear and be heard in probate
proceedings 53 he has no right or interest in presenti in the property. His right becomes concrete only on the demise
of the female owner, until then it is mere spes successionis . It cannot be sold, mortgaged, assigned or relinquished
for a transfer as a spes successionis is a nullity and has no effect in law. 54 The prohibition in Section 6 (a) being
based on principle of public policy, the Court cannot allow such transactions to be affected by a consent decree
unless in the meantime the succession opens and the reversion has fallen into possession and the reversioners in
law are able to transfer their rights. 55 It is true that the reversion is an expectancy but an expectant reversioner’s
right to sue for a declaration has statutory recognition. 56 By becoming a party to a compromise 57 or family
arrangement 58 and by taking the benefit thereof the reversioner may be estopped from claiming as a reversioner.
A family arrangement to be valid need not necessarily be a compromise of doubtful rights or claims. The existence
of a family dispute is not essential to the validity of a family arrangement. 59
It is of the essence of a family settlement that the deed presupposes a bona fide claim on either side and an honest
settlement thereof. There must be either a dispute or at least an apprehension of a dispute, a situation of a contest,
which is avoided by a policy of giving and taking. 60 Hence the possibility of a Hindu reversioner succeeding to the
estate of the last full owner on the termination of the estate of the intermediate female heiress falls within clause (a)
of Section 6. There is no escape from this position, nor can reliance be placed on the principles of equity which may
be invoked by a transferee of non-existent future property as laid down in Holroyd v. Marshall , 61 Tailby
v. Official Receiver , 62 Walsh v. Lonsdale 63 which reached this country in Mahomed Musa’s
case 64 and ultimately found its way into Section 53A of this Act. That "equity regards that as done which
should have been done." And a contract by a Hindu to sell immovable property to which he is the nearest
reversionery heir, expectant upon the death of the widow in possession, and to transfer it upon possession accruing
to him is void; the
T.P. Act , 1882, Section 6 (a), which forbids the transfer of expectancies, would be futile if a contract of
the above character were enforceable,65 nor can be doctrine of estoppel enunciated in Section 43 of the Act and
which corresponds to the English doctrine of feeding the estoppel be relied upon. There is a fundamental difference
between noncompliance with the formal requisites prescribed for a transaction whereby alienable property is
transferred and an attempt to accomplish a transfer of property which has been rendered inalienable by a statutory
provision nor can the doctrine of feeding the estoppel be made applicable to such cases as that principle has no
application to a contract of assignment of property expressly rendered inalienable by the Legislature. The doctrine
of estoppel being that if a man who has no title to the property, grants it and subsequently acquires an interest
sufficiently to satisfy the grant, the estate instantly passes. 66
But the consideration for the transfer by a Hindu reversioner could be recovered on the agreement being
discovered to be void under
Section 65 of the Indian Contract Act, 1872 , with interest from the date of the suit, the period of limitation
not running until the rights of the purchaser were discovered to be unenforceable.67 Distinguished from a sale or an
agreement to sell, a reversionary interest is the settled law that an alienation by a widow in excess of her powers is
not altogether void but only voidable by the reversioners who may either singly or as a body be precluded from
exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding. 68 The
Page 10 of 69
S. 6 (A).
position of such a reversioner is in no way affected by the fact that a co-reversioner who had not consented to the
alienation had sued for and obtained a declaratory decree in respect of half the property alienated by the widow. 69
The case of Parvati v. Dayabhai Muncharam 70 could be distinguished. In that case the widow had
transferred her life estate and the reversioner had transferred his reversionary rights. It was held that the
reversionary right was not transferable. Moreover, the question of estoppel was not argued in that case. The case
was subsequently explained and distinguished in Basappa v. Fakirappa . 71 The Allahabad High Court 72 refused to
follow the former case. The case of Gur Narayan v. Sheo Lal Singh 73 is also distinguishable. In that
case a remote reversioner who had given his consent to a transfer by a widow was allowed to question the
transaction not in his own capacity but as a legal representative of the actual reversioners who had not given their
consent to the transfer. A consent even when given after the transaction would be operative 74 whether as an
estoppel has been the subject of judicial comment. 75 More recently the Courts have, on the ground of election,
upheld a gift as against the particular reversioner who has consented to the gift by the widow during her lifetime.
The authority of Bai Parvati’s case 76 must be taken to have been still weakened by the decision of the
Full Bench in Akkawa v. Syadkhan , 77 affirming the principle in Basappa v. Fakirappa 78 not indeed on
the ground of estoppel on which it actually proceeded but on the ground of election, referred to by their Lordships of
the Privy Council in Rangasami Gounden v. Nachiappa Gouden . 79 In the Full Bench case a Hindu widow sold her
husband’s property without legal necessity with the consent of the next presumptive reversioner as evidenced by
his joining in the deed. The Court held that the reversioner could not, having regard to his election, impugn the
validity of the sale after the widow’s death. The Full Bench case was followed in a later case by the same Court. 80
There a Hindu widow who had succeeded to the estate of her son made a gift of a portion of it to her daughter with
the consent of the widow of another son in consideration of the daughter agreeing to maintain both the widows.
After the death of the widow and the daughter the daughter-in-law sued to set aside the gift. It was held that the
daughter was precluded by her own election from maintaining the suit. The same view in regard to election is taken
by the Full Bench of the Allahabad High Court.
Where reversioners are parties to a family settlement, Section 6 (a),

T.P. Act would not bar such family settlement.81
As to whether creditors of a consenting reversioner can impeach his transaction is not covered by authority, but it is
submitted that they cannot have a higher claim than their own debtor. 82
Section 2 of the Transfer of Property Act provided that nothing in the second chapter shall be deemed to
affect any rule of Hindu, Mahomedan or Buddhist Law but there is nothing in the Hindu texts that the interest of a
reversionary heir is alienable. By the
Amending Act (32 of 1956), the second chapter is now made applicable to Hindus. As the
Transfer of Property Act is not made applicable to the Punjab such a contract as a sale of reversionary
right will be enforced where the inheritance falls into possession.83
The interest of a reversioner is a spes successionis within the meaning of

Section 6 of the T.P. Act . A transfer of aspes successionis is a nullity and it has no effect in law. 84
Section 6(a) in terms applies only to transfers of immovable property. As contract of sale does not pass any title
from the settlor to the purchaser by virtue of Section 54, that section does not directly make actual conveyance
illegal. But where an actual conveyance of a thing would be illegal by reason of Section 6 (a), as far instance the
sale of the so called interest of a Hindu reversioner of the last male owner when his widow is alive, an agreement to
sell that interest would also be bad. 85
An agreement to transfer property whereby the property which would have come to the reversioners on the death of
a widow, during widow’s life time would offend Section 6 (a). 86 An arrangement between the next reversioner and
the member of the family that they would remain in possession of property during widow’s life time and would share
the property equally after widow’s death would not offend the provisions of Section 6 (a). 87 An agreement between
Page 11 of 69
S. 6 (A).
parties that neither of them would claim any share/title in the properties allotted to each other on their death would
not offend Section 6 (a). 88
Mahomedan Law. —Under the Mahomedan Law, a mere possibility, such as the expectant right of an
heir-apparent, is not regarded as a present or vested interest, and cannot pass by succession, bequest, or transfer
so long as the right has not actually come into existence by the death of the present owner. This principle of
Mahomedan Law is uniform in its application to matters of bequest, inheritance or otherwise. 89 There is a large
preponderance of authority in favour of the view that a transfer or a renunciation of the right of inheritance before
that right vests is prohibited under the Mahomedan Law. 90 It is now well settled that though Section 6 (a),
T.P. Act does not apply to Muhammadans, a transfer or renunciation of a contingent right of inheritance
is prohibited by Mohammdan Law itself.91 The renunciation by a Muhammadan presumptive before the inheritance
opens is invalid and cannot be justified as a family arrangement or on the basis of estoppel or illegality. The
doctrine of election would not be available to cure an illegality. 92 Relinquishment of rights to share in father’s
property on the heirs of a Mohammedan on his death, would be within the prohibition of
Section 6 (a) of T.P. Act , the heirs, therefore are not bound by such relinquishment or agreement to
relinquish.93 The rules of Mahomedan Law are not affected by the
Transfer of Property Act though Section 2 of the Act excludes the operation of this chapter to
Mahomedans.
The chance of a Mohammedan heir succeeding to an estate is also a mere spes successionis and cannot be the
subject matter of a transfer. Hence, under
Section 6 (a) of the T.P. Act and under the principles of Mohammedan Law, an heir-apparent cannot
transfer his chance of succeeding to an estate.94
The chance of a Mohammedan heir-apparent succeeding to an estate cannot be subject of a valid transfer on
lease, but renunciation of an expectancy in respect of a future share in a property in a case where the concerned
party himself chose to depart from the earlier views, was not only possible, but legally valid. Where the heir
apparent has accepted the consideration and has relinquished a future claim or share in the estate of the deceased,
it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successionis . In
such cases, the principle of estoppel would be attracted. 95
Punjab. —The Hindu Law and Section 6 (a)of the

Transfer of Property Act govern cases under the Punjab Customary Law as it is well settled that the
respective rights of a widow in possession of her husband’s estate and her reversioners are analogous under both
these systems.1
Alternative promise. —One of the parties to a transaction were reversioners and the other a mortgage
of their father claiming balance of the mortgage money and the agreement stipulated that on the death of the widow
or on her executing a deed of relinquishment in their favour when they became owners of certain shares in three
villages they would execute a deed of transfer in favour of the mortgagee. The deed provided that if for any reason
they were not able to obtain proprietary possession of the shares in the three villages within a year after the death
of the lady or in spite of obtaining possession they did not execute the sale deed, they would execute a sale deed in
respect of a share in another property which they had no partition. It was held that were alternative promises, an
option being given to the reversioners either to transfer their inheritance or to transfer their share which they had
obtained on partition and the case was governed by
Section 58 of the Indian Contract Act, 1872 , which provides that in case of an alternative promise one
branch is legal and the other illegal, the legal branch alone can be enforced and that as the first branch defeated
the provisions of the law enacted in Section 6 (a) the second branch was enforceable.2
Page 12 of 69
S. 6 (A).
Clause (b) Transfer of a Right of Re-entry.
Proviso for re-entry. —Usually inserted in a lease though limited to non-payment of rent only where the
lease is to contain "usual covenants and provisions" it is a right reserved to a lessor on the execution of a lease
giving him a right to re-enter the premises leased and determine the lease by forfeiture resulting from the breach or
non-observance of a covenant on the part of the tenant. It is one of the modes provided by Section 111 for
determining a lease of immovable property on breach of an express condition which provides that on breach thereof
the lessor may re-enter. This is further emphasized by Section 114A,viz. , that there must be a forfeiture incurred by
the lessee and enforced by the lessor by due notice. Reading Sections 111(g) and 114A together, this right of
reentry can be exercised only by the owner of the reversion. In England only the legal owner of the reversion can
exercise this right so that a mortgagor in possession subject to a lease has no right of re-entry for breach of the
covenants of the lease. 3 In a Bombay case there was a proviso for re-entry on breach of covenant. After a breach,
the lessor assigned the lease to the plaintiff. It was held that the plaintiff was entitled to exercise his right of re-entry.
One of the learned Judges constituting the Division Bench held that the case was covered by the words of
Section 109 of the Transfer of Property Act while to the other it seemed that section had no bearing on
the point and that on general principles of English Law the right of re-entry could be exercised in case of a breach of
covenant prior to transfer.4 A similar view was held by the Calcutta High Court in the case of a lease executed prior
to the
Transfer of Property Act .5 A right of entry always supposes an estate : for what is a right of entry without
a right to hold and receive the profits. Therefore, if an estate is granted to a man reserving rent, and in default of
payment a right of entry was granted to a stranger, it was void. A right of entry cannot subsist without an estate. 6 A
proviso for re-entry cannot be enforced unless there is a forfeiture clause.
Not a "usual covenant" in a lease. —A power of re-entry in a lease if the lessee or his assigns
becomes bankrupt or makes a composition with his creditors is unusual and an intended assignee is not bound to
accept the assignment of lease containing such covenant. 7
Re-entry on "non-performance" or "non-observance." —A power of re-entry on non-performance of

covenants does not entitle the lessor to re-enter for breach of a negative covenant, such as a covenant not to
assign without consent. 8 While a power of re-entry for non-observance of covenant applies only to negative
covenants. 9 Prior to Harman v. Anislie , 10 it was held that "non-performance" of a covenant applied only to
positive covenants while "non-observance" to negative covenants. That case, however, decided that "non-
performance" was appropriate to breaches of both covenants. A conveyance should, however, use both
expressions to avoid complicity.
Notice inoperative to determine lease. —Actual re-entry or its equivalent, the issue and service of a
writ to recover possession, is necessary in order to determine the lease. A notice is inoperative for this purpose. A
notice by the lessor of his intention to re-enter and demand possession is not entry or equivalent to entry and is not
sufficient to determine the lease. 11 In an action to recover possession it is not necessary that plaintiff should in fact
re-enter the premises. 12
Effect of proviso for re-entry. —It is well settled that on a true construction the proviso does not avoid
the lease but renders it voidable at the option of the lessor. Consequently, if the lessor exercises the option that it
shall continue, the lease is rendered valid; if he elects that it shall end the lease must be determined. 13
Requisite formalities to re-enter. —For mere non-payment advantage cannot be taken of the default
in payment to re-enter. There must be, according to Section 114A, a formal demand and the observance of other
Page 13 of 69
S. 6 (A).
formalities.
Severance of reversion. —A severance of the reversion is distinctive of the power of re-entry but
where two distinct properties held under separate titles are comprised in one lease and the reversion of one of them
becomes vested in the lessee, this does not extinguish a right of re-entry in respect of the property of which the
reversion remains in the lessor; the rules as to severance of reversion by assignment to third parties not being
applicable to cases where a portion of the reversion is vested by assignment in the lessee himself. 14 The latter is
illustrated by the following case. H. demised a farm to certain lessees whose interest was vested in defendant.
During the continuance of the lease H. died, and under his will the reversion was severed and became vested in
several tenants in common, of whom plaintiff was one; held plaintiff could, without joining the other tenants in
common, maintain an action to recover damages for wrongful acts causing injury to the reversion, and for breach of
a covenant running with the land. 15 See now the Law of Property Act, 1925 (c. 20), Sections 140-142.
Condition subsequent. —This is dealt with in Section 31, the effect of which is that on breach of an
expressed condition provided in the lease the lessee is deprived of his interest and the property reverts to the
lessor.
Clause (c)—Easements.
Easements generally. —Two tenements are necessary for the existence of an easement and they
must belong to different owners. 16
Transfer of dominant heritage. —Where a dominant heritage is transferred or devolves by act of

parties or operation of law, the transfer or devolution, unless a contrary intention appears, must be deemed to pass
the easement to the person in whose favour the transfer or devolution takes place. 17 Hence an existing easement
is not transferable, apart from the dominant heritage, and this is the rule in Section 6 (c).
Creation of an easement. —The creation of an easement by grant is not such a transfer of ownership
as is contemplated by Section 54 of the Act. Where an easement is transferred it must be transferred along with the
dominant heritage. There is no other way of transferring it and this arises by reason of the nature of the right. It
exists only for the benefit of the heritage and to supply its wants. 18
"Profits a prendre." —This class of beneficial enjoyment is not technically regarded as an easement in
English Law, but the Easements Act includes this under easement. In the explanation to Section 4 of the
Easements Act (V of 1882), the expression "to do something" includes removal and appropriation by the dominant
owner for the beneficial enjoyment of the dominant heritage of any part of the soil of the servient heritage or
anything growing or subsisting thereon. Illustration (d) to that section mentions the right to pasture cattle on
another’s field or to take water or fish out of another’s tank or timber out of another’s wood or to use, for the
purpose of manuring his lands, the leaves which have fallen from another’s lands, as instances of easements.
Where the plaintiff claimed and proved a prescriptive right of using certain land belonging to the defendant’s
mortgagor for a part of every year for raising rice-plants to be afterwards transplanted to his own land, the right was
regarded as an easement of the nature known in French Law as profits a prendre . 19 And so is a prescriptive right
of fishery. 20 The right of "lagan" attached to the ownership of the front part of the "ghat" to use the back part under
certain conditions is an easement. 21
Page 14 of 69
S. 6 (A).
Clause (d)—Transfer of Interest Restricted in Enjoyment.
Under
Section 6 of Transfer of Property Act , the property of any kind may be transferred but as per Section 6
(d), an interest in the property restricted in its enjoyment to the owner personally cannot be transferred by such
owner. Under Section 3(2) (g) of Inams Abolition Act, an inamdar or any other person whose rights have been
vested in the State under Section 3(2) (b), shall be entitled to only compensation as provided under the Inams
Abolition Act and different categories of occupants are entitled to such rights and privileges subject to such
conditions as provided under the Act. Therefore, though after the date of vesting the occupants or inamdars are
entitled to continue in occupation, they are entitled to transfer such limited interest of enjoyment to third parties.22
Service tenures. —This clause forbid alienation of lands or interest in lands or of an office restricted in
its enjoyment to the owner personally as there would be no security that the transferee would be a fit and proper
person to discharge the duties attached to such land, interest or office. Illustrations of these are found in ghatwali
tenures in Bengal, the office of karnam in Madras and religious offices. In Bengal a ghatwali tenure being ancient
and of unknown origin, descended from father to son, and was held by hereditary right. In Moghul times such grants
were common. Ghatwali duties may be divided into police duties and quasi-military duties. Though both classes
have lost much of their importance, the latter in any strict form is very rarely rendered. Personal performance of the
ghatwali services is not essential so long as the grantee is responsible for them and procures them to be rendered.
23 For this purpose they were accustomed to employ armed retainers to guard against hostile inroads, as well as a
general police force, under the description of thannadars, paiks and chowkidars to repress crime in the villages. 24
Ghatwali tenures were not resumable on the Government assuming charge of the police. 25 The office cannot,
except by special custom, grant or other arrangement, either run with lands or be severed from them. If the lands
are alienated piecemeal—and this must be involved in a right to alienate them all—the same difficulty arises in
another form, for here, the office being indivisible, the question is to which of a number of several purchasers of the
lands is it to pass? 26 A tenure so granted is inalienable and indivisible 27 and cannot be sold in execution of a
decree against the person of the incumbent of the office of ghatwal for the time being. 28 In Binode Ram Sein v.
Deputy Commissioner of Sontah Parganas 29 it was held, and, in the opinion of their Lordships who
heard Nilmoni Singh v. Bakranath Singh , 30 rightly, that the surplus proceeds of a Birbhum ghatwali tenure which
had passed by descent from ancestor to heir, were not liable, in the hands of the heir, for the debts of the ancestor.
The jaghir is strictly a life tenure as far as the jaghirdar is personally concerned. He holds the land in lieu of pay. A
newly elected jaghirdar would not be held responsible for the debts of his predecessor, as were he to be so, he
would lose the benefit of his pay. 31 Ghatwali is a combination of clauses (d) and (f), being public services rendered
by a private individual. In the absence of special circumstances, a ghatwal is as a general rule, not competent to
grant a lease of the tenure in perpetuity, and his successors are not bound to recognize such an encumbrance. 32
Where the enjoyment of the tenancy right has not been restricted to the tenant personally under the terms of the
lease under which the lease was created nor there is any enactment, which restricts the enjoyment of the property,
the right of the tenant has been held a property. 33
An agreement for sale executed by the life interest holders who have been given mere right of residence in the
building is not in accordance with law as under
Section 6 Clause (d) of the T.P. Act , the life- interest holders are not entitled to transfer their restricted
interest in the suit property. Such an agreement is not a legal agreement and the same cannot be enforced.34
If by the terms of the instrument the rights are created against the property, the matter is taken out of the purview of
Section 6 (d),
T.P. Act .35 Property in which a person has only a life interest can be sold for realization of tax dues of
the State, Section 6 (d) has no application to such a case. On the death of the person having life interest the
Page 15 of 69
S. 6 (A).
purchaser would cease to have interest in the property. 36 Where in a partition the eldest son, having no interest in
family properties was given same property by way of maintenance of his family without any power of alienation nor
to lease it out and such rights were given till his death, it was held that only interest given to him was of enjoyment
of the property personally, and he was not entitled to transfer the properties. Transfer so made would be void and
inoperative even during his lifetime. 37
Future rents and profits which may become due to a ghatwal cannot be attached, for a ghatwal prevented from
recovering the rents in future would not be in a position to pay the wages of the chowkidars and so to perform the
duty which devolves upon him as a ghatwal. 38 A receiver of future rents and profits may be appointed for such a
receiver could make provisions for payment of wages and other incidental expenses. However, after deduction of all
necessary outgoings from the total rents due to a ghatwal, the residue being his personal property, is as such liable
to be seized and appropriated by his decree-holder. 39 A tenant who has already acquired a right of occupancy in
chowkidari chakran lands is protected by Section 51 of Act VI of 1870 and such a right is not destroyed by the
Bengal Tenancy Act.40
In Bombay an alienation of service vatan land by the holder of it is good against himself unless the alienation is
made to a vatandar. 41 The subsequent abolition of the service renders the title of the alienee in possession
undisputable by the alienor’s heirs, assuming that there is no family custom operating apart from the law which
preserves service lands for the intended uses. 42 But though the political and public tie, which kept a vatan estate
together, may thus have failed, a concurrent family custom producing an effect wholly or partly the same, may
continue and may singly bind the hands of the successive holders of the property as strictly as before. 43 It is only
necessary to bear in mind that this "estate," the proprietary relation of a family to certain lands, is not by Hindu Law
a quality of the lands; it is a jural character of the family. 44 The daughter of a vatandar is not a vatandar of the
same vatan during her father’s lifetime. 45 The fact that vatan land is attached to the office, deprives it of some of
the incidents, which would attach to it if it were ordinary land in the possession of a Hindu family. According to the
decisions of the Bombay High Court, the vatandar is entitled to alienate the land for the term of his natural life and
his children, although not separate in interest from him, have no right to object to such alienation until after his
death. 46 Amongst Sudras governed by the Mitakshara an illegitimate son cannot inherit a vatan collaterally in
preference to legitimate heirs. The right to sue for a declaration of heirship to a vatan does not accrue until the
death of the widow of the last male holder of the vatan, the widow having a vested interest in it as the nearest heir.
47 In Madras military service tenures were known as palayam. They were not inalienable. And none of the
successive tenants could by his dealings deprive the next holder of the source from which his duties might be
discharged. 48
Lands held on Swastivachakam service tenure are not subject to attachment in execution of a decree, for the sale
of such land is opposed to public policy and the nature of the interest affected. 49 The land which formed the
emolument of the office of a karnam did not become the family property of the person appointed to the office
although he may have had a hereditary claim to the office. The land was designed to be the emolument of the
person in whose hand the office of the karnam might pass and was inalienable by him. 50 A woman cannot hold the
office of a karnam and when the immediate heir is incapacitated, the nearest male sapinda of the deceased karnam
is entitled to succeed to the office. 51 Deducible from the above authorities is that freedom from service caused by
commutation of money payment or abolition of military service, is destructive of the incident of inalienability of these
service tenures. 52
In the instant case the Respondent No. 2 did not hold any personal interest which would come within the purview of
Section 6 (d) of the Act. An interest in an open ended investment scheme known as CANCIGOS was not created in
the Respondent No. 2 in his personal capacity.
Section 6 (d) of the Transfer of Property Act would apply when a transfer is in violation of such
stipulation which would defeat the object thereof. Held, invocation of
Section 6 (d) T.P. Act in the case was improper.53
Page 16 of 69
S. 6 (A).
An interest in the decree cannot be carved out separately. If the entire decree is transferred, it is not possible to
retain part of the rights or interests contained in that decree. The right to occupy and possess the property in
pursuance of the decree is not an interest in the property restricted in its enjoyment to the owner personally, as
such a decree passed under the Rent Control Act for enjoyment of the property can be transferred. 54
Distinction between grant of office remunerated by use of land and grant of land burdened with
service. —In the former case the land is prima facie , resumable, in the latter case it is not; but the terms of the
grant or the circumstances in which it was made may establish a condition of the grant that it was resumable. The
onus will be upon the grantor to make out such a condition. 55
"Res extra commercium". —There are certain rights, chief among them being spiritual duties and
privileges attached to a religious office, that cannot be transferred. They are res extra commercium , for instance, a
sacerdotal office which belongs to the priest of a particular class. Similarly, a right to receive offerings from pilgrims
resorting to a temple or shrine is inalienable. Whenever an image or idol is set up and consecrated there must be a
shebait to serve and sustain the deity. His office is a sacred one and it does not follow, because in certain
circumstances he may be entitled to alienate the temporalities of the deity, that in similar or any circumstances he is
entitled to transfer the spiritual duties and privileges which appertain to his office. 56 On the death of a husband his
widow would take the shebaitship. 57 Among the members of a Mitakshara family the right of shebaitship passes by
survivorship. 58 An alienation of a pala or turn of worship only, apart from the debutter land, is unreasonable in the
absence of a custom established to that effect, 59 nor is a sub-division of pala valid and a transfer by a shebait of
his turn of worship to two persons in different shares is unreasonable. 60 Being a point of law, objection to such a
division may be taken in second appeal. A shebait is incompetent to sell his religious office for his own pecuniary
benefit even if he sells to the person next in succession to the office. 61 But the Privy Council has said that where
custom relied on as sanctioning a transfer of their office and duties implies a right to sell the trusteeship for the
pecuniary advantage of the trustees that circumstance alone justified the decision that the custom relied on is bad
in law. 62 The urallers or managers of a pagoda have no power to transfer their uramia right. 63 A term of worship is
not an interest in immovable property 64 and therefore a sale thereof does not require registration. 65 A right to
receive offerings from pilgrims resorting to temples or shrines is inalienable. 66 The privileges of a village priest to
recover fees for the performance of religious ceremonies, no matter by whom they are performed, cannot be
invaded. 67 The office of a Maha Brahmin or Birtacharji is a right to perform personal service and not susceptible of
transfer. 68 Vritti , a "right of personal service", 69 is inalienable, being in essence a sacred and personal
right. 70 Under Hindu Law Vrittis are regarded as generally extra commercium . 71 As to transfer of the right of
management vested in the mahant of a mutt it is settled beyond controversy that such a transfer is beyond his legal
competence. This principle is based on the ground that if the office to which is attached the conduct of religious
worship and performance of religious duties were to be held transferable, the very object of the religious foundation
might be defeated. 72 An archaka , (a priest who alone is allowed personally to attend upon the idol) cannot sell the
emoluments of paricharika , (assistant to the archaka not allowed to touch the idol). 73 An alienation by a pujari of
his office is not recognized. 74 Nor is a purchase of an office involving the performance of Hindu religious worship.
75 A karima right in a pagoda is unsaleable. 76 The office of an archaka in a temple could not be alienated where
the alienation contemplated the introduction of a different ritual. 77 The sale of religious trust is illegal. 78
There is a dictum by the Privy Council that although in the case of a family idol the consensus of the family might
give existing dedication another direction, this could not be done in the case of a public temple by consensus of the
trustees. 79 Gift of a grant for grantee’s parwarish for lifetime is invalid. 80 An hereditary dharmakarta of a temple
who has assigned his office to a zemindar and consented to a decree being passed on the footing of such
assignment is competent, nevertheless, to bring a suit to set aside a Court sale of temple lands treating such
assignment as nullity. 81 A transfer of Malabar Devaswam, the right to manage a Malabar temple and its lands by
way of lease for a sum of money, is illegal. 82
An alienation by the hereditary managers of the management and lands with which a religious foundation was
endowed is void, 83 unless an alienation is made of a hereditary office in favour of a person standing in the line of
Page 17 of 69
S. 6 (A).
succession and not disqualified for the performance of the office by personal unfitness. 84 The right of managing a
temple, of officiating at the worship and receiving offerings at the shrine cannot be alienated. 85 Property annexed
to the office of kurnum is inalienable notwithstanding that for some time it may have been enjoyed as private
property. 86 The office of sajjada nashin or mutawali of a religious endowment or wakf cannot be transferred. 87 Nor
is the sale of a Mahomedan office to which are attached substantially the conduct of a religious worship and the
performance of religious duties valid. 88 An inam land held by a kazi in view of remuneration for his services is
inalienable. 89
The right of birt khakrobi (scavenging right) is not a transferable right or a right in immovable property and could not
be the subject matter of a lease, unless it is shown that there was any custom, grant or agreement to show that it
was a transferable right. 90
Transferability of palas. —There is no question that though probably religious offices were originally
indivisible they are now deemed partible. 91 Indeed, the very name pala or turn of worship shows that the right is
partible. This involves by necessary implication the attribute of transferability as amongst the members of the family
of shebaits . It is also devisable. It follows consequently that the customary right to make a sale, mortgage, gift or
lease of a pala in favour of persons within a limited circle is closely associated with and possibly developed out of
the heritable, devisable and partible character of a pala . A custom of this description cannot be characterised as
unreasonable or opposed to public policy. 1 Where by custom a right to perform puja by turns was conferred on
Brahmins only a transfer of such a right in favour of a non- Brahmin is not valid. 2 A sale followed by agreement to
reconvey amounts to a contract creating a personal right and is not transferable. 3 An interest in the income of
immovable property assigned by way of maintenance to a Hindu widow by members of a family is not capable of
being attached and sold in execution of a decree against the widow. 4 So also is exempted from attachment and
sale land which is assigned for maintenance of a widow with a proviso against alienation. 5 But a heritable right to
receive a certain monthly allowance originally assigned in lieu of a share of landed property is not a mere right to
maintenance or anything else exempted by the proviso to
Section 266 of the Civil Procedure Code and is saleable in execution of a decree.6
Building leases. —A transfer may be prohibited by contract between the parties. Amongst examples of
such contracts are building leases where land is agreed to be leased by the freeholder for a period of 999 years
entitling a builder to a lease contingently on his erecting and completing specified buildings. Such agreements
usually contain a clause that the lessee shall not underlet or part with or otherwise assign the benefit of the
agreement without the consent of the lessor except by way of mortgage subject to the terms of the agreement. In
the absence of a prohibition the benefit of a contract that is the beneficial right or interest of a party under the
contract and the right to sue to recover the benefits created thereby are assignable provided that (a) benefit is not
coupled with any liability or obligation that the assignor is bound to discharge, and (b) the contract has not been
induced by personal qualifications or considerations as regards the parties to it. 7
Property under a contract which an assignor can pass to an assignee is an "actionable claim" within the meaning of
Section 3 of the Transfer of Property Act unless vitiated by fraud.8 When personal considerations from
the material element of the contract it cannot be assigned without the promisor’s consent. 9
Pre-emption. —A right to pre-emption is a right of substitution 10 and is inalienable. It is not a

repurchase and operates from the date of the sale in favour of the original purchaser. 11 It is incident to the
ownership of one land and a burden on the ownership of another land. On general principles the incident and the
burden respectively will follow such lands. 12 The sole object of the right of pre-emption is the exclusion of such
strangers as are objectionable to the pre-emptive co-sharers of the vendor. It is purely a personal right which
cannot be transferred to anyone except the owner of the property affected thereby. 13 A decree for pre-emption
cannot be transferred as the effect would be to place the transferee in possession without the trial of the question
whether such a transferee had a pre-emptory right in preference to the purchaser against whom the decree was
Page 18 of 69
S. 6 (A).
obtained. 14 From its very origin and nature it is a transient right in its very conception and nature and being a
personal privilege of the pre-emptor cannot be made the subject of sale or bargain of any other kind. 15
This doctrine of pre-emption is peculiar to Mahomedan Law and based upon justice, equity and good conscience.
Applying this doctrine, a co-sharer in a village who had under the Wajib-ul-arz a right to the mortgage of a share in
such village and in anticipation of obtaining the mortgage mortgaged such share to a stranger thereby forfeited such
right. 16 There is no objection to a pre-emptor being a Mahomedan and the vendor and purchaser being Hindus. 17
The Hindus of Bihar have adopted the Mahomedan Law of pre-emption for a long time. 18 Where the existence of
the custom under which the Hindus have the same right of pre-emption under Mahomedan Law as Mahomedans in
any district is generally known and judicially recognized it is not necessary to assert or prove it. 19 There must be no
delay in the assumption of the claim of pre-emption. 20 There is no right to pre-emption where property is
transferred in consideration of a partial release by a Mahomedan wife in respect of dower debt 21 or where a sale is
made in exchange for the maintenance right 22 nor is there any right of pre-emption in case of an exchange 23 or
mortgage 24 or perpetual lease 25 unless the annual rent is substantially equal to the Government revenue
assessed and no right of reentry is reserved. 26 A relinquishment for consideration by the reversioner to the vendee
of the widow of his right to sue to set aside the sale does not amount to a sale for purposes of pre-emption 27 but a
sale of the bankrupt’s property by the Official Assignee 28 or by the Official Receiver 29 is subject to the right of pre-
emption and does not defeat that right. And a mortgage by a pre-emptor who had obtained a decree for possession
of the pre-empted property, to a stranger to provide the pre-emptive price does not destroy his pre-emptive rights
under the decree. 30 Under Mahomedan Law, before it can be held that the sale is complete there must be
cessation of the right of the vendor in the property and the solution of this matter is to be found in determining in
each case what the intention of the party was. 31
Muhammedan Law, dower Debt—Whether alienable? —The dower debt of Mohammedan widow is
not alienable since it is not a charge over the property of her husband but is an interest restricted in its enjoyment to
her personally within the meaning of
Section 6 (d) of T.P. Act .32
Gift deed without delivery of possession. —Clause (d) of Section 6 would not attracted on the terms
of the gift deed in the instant case because it was not a property, the enjoyment of which was restricted to the
owner personally, she was absolute owner of the property gifted and it was not restricted in its enjoyment to herself.
She had inherited it from her maternal father as a full owner. The gift deed was not ineffectual merely because the
donor had reserved to herself the possession and enjoyment of the property gifted. 33
Clause (dd)—Future Maintenance.
Amendment. —This clause was added by Section 7 of the Transfer of Property (Amendment) Act, 1929
(20 of 1929), for the protection of maintenance to which qualified owners are entitled and to set at rest conflicting
decisions.
Future maintenance. —The rule prohibits the assignment of future maintenance only in whatsoever
manner arising, secured or determined. Arrears of maintenance may be assigned.
S. 6(dd),
T.P. Act and Section 60 (i)(h),
CPC were enacted for a limited purpose, intended to protect maintenance holders against themselves
Page 19 of 69
S. 6 (A).
and to see that they are not deprived of their livelihood.34 A right to future maintenance is neither attachable nor
assignable. The provisions would not apply to cases where heritable and transferable interests such as annuities in
favour of third parties are created. 35
In whatever manner arising. —Maintenance of a Hindu widow may arise in several different ways,
either as the widow of a coparcener in a joint family or as widow of the last male holder or it may arise under the will
of a testator or by deed. Besides the widow, in Hindu Law other females are also entitled to maintenance. Under
Section 488 of the Criminal Procedure Code , 1898, an illegitimate child is entitled to maintenance, and
so in matrimonial proceedings is a wife entitled to alimony. Every father is under a legal obligation to maintain his
child during minority.
Secured. —Maintenance of a Hindu widow is not a charge upon the property unless the charge is
created by agreement between the parties or by a decree of the Court. 36 Future maintenance so secured cannot
be the subject of an assignment.
Determined. —Maintenance may be a personal right or may be fixed by agreement or by decree of the
Court. Prior to the insertion of this clause the Calcutta High Court held that where future maintenance is merged in
a judgment the right under the judgment is assignable. 37 To the same effect was a dictum of the Bombay High
Court. 38 A Full Bench of the Madras High Court followed the same view. 39 A contrary view was held by the latter
Court where the right was personal. 40 The conflict has been set at rest, for although an agreement or decree would
make such a right definite this clause enacts that such a right, being nevertheless created for the personal benefit of
the qualified owner, is inalienable.
Property in lieu of maintenance. —Where property has been given in lieu of

maintenance the transfer of such property during the lifetime of the person entitled to maintenance is valid. 41
Allowances. —Where allowances are reservations out of the income of the estate to which a settlor is
fully entitled they are his property and are not in the nature of maintenance grants personal to and inalienable by
the holder of the allowances. 42 Hereditary grant of an allowance of paddy out of the melvaram of certain land is not
a right to future maintenance and is not exempt from attachment. 43
Surrender of life-interest. —Where a widow who had succeeded as heir to her husband’s properties
surrendered her life-interest therein to the nearest reversioner who in return agreed to her residing in the family
house and sharing the meals of the family or to her receiving a certain amount of paddy annually if she chose to live
away from the family house, the option being exercisable by her at her will and without her being subject to any
liability to elect once and for all, it was held that the right to maintenance conferred on the widow was purely
"personal" to her, and was not transferable. 44
Attachment. —Under
Section 60 (n) of the Code of Civil Procedure, 1908 , a right to future maintenance is not liable to
attachment or sale.45 An annuity given by will can be attached and sold as it is not a right to future maintenance. 46
Alienation. —A compromise by a Hindu widow with the reversioner in relation to her husband’s property
restricting alienation prevents her from having a disposing power and consequently the property cannot be
Page 20 of 69
S. 6 (A).
attached. 47 A mortgage by a Hindu widow of property transferred to her in lieu of maintenance for the period of her
limited interest does not infringe the rule. 48
A deed of gift was made by a Hindu widow and her mother-in-law to the daughter of the latter in consideration of the
daughter agreeing to maintain both the donors. The transaction was held to be a family arrangement binding upon
the parties to it. 49
Alimony. —This is maintenance awarded against an erring husband and as such is a personal right of
an aggrieved wife, consequently it is not alienable. 50
Residence. —The right of residence in not dealt with by this clause but it would be included in clause
(d) as did maintenance prior to the amendment.
Babuana property. —This is property granted in accordance with the family custom of the Darbhanga
Raj to the junior male members in lieu of maintenance subject to the proprietary rights of the grantor and his
ultimate claim as reversioner on the extinction of the grantee’s descendants in the male line. The grantee has a
right to alienate the property subject only to the contingent interest of the grantor. 51
Kharch-i-pandan. —This is a personal allowance, and in the absence of any clear provision in the deed
signed by the prospective husband, fixing the allowance in favour of his wife, that it was alienable, it could not be
held so on the mere fact that the payment was secured by a charge on immovable property. 52
Clause (e)—Mere Right to Sue.
Legislative Changes. —This clause was amended by

Section 3(i) of the Transfer of Property Act , 1900 (2 of 1900), by the omission of the words "for
compensation for fraud or for harm illegally caused," thus making it wider than it originally stood.
Mere right to sue. —The provisions of Section 6 (a) are based on public policy and principle that
assignment of a mere right to sue is as much opposed to public policy as gambling in litigation. 53 Section 6(e) of
T.P. Act bars transfer of a mere right to sue.54 In the section the word "mere" means bare or naked. 55 It
is used in the same sense as in subclause (a). Prohibition against transfer in clause (e) is principally aimed at suits
for recovery of mesne profits and damages arising either in tort or in contract. It is a personal right. A transfer of an
actionable claim is not a transfer of a mere right to sue. A mere right to sue for breach of a contract is not
assignable either under the
Transfer of Property Act or under the Common Law even though the breach was in respect of the
discharge of an obligation binding on the transferee.56 A mere right to sue cannot be transferred. 57 The right of a
co-sharer to receive share of his profits not due is a mere right to sue and cannot be transferred. 58
Under
Section 6 (e) of T.P. Act , a right to sue alone cannot be transferred because such a right is personal to
the party, but when the right to recover anything is incidental to the property transferred it is not covered by clause
Page 21 of 69
S. 6 (A).
(e) and the right to recover would pass to transferee along with the transfer of the property by virtue of
Section 8 of T.P. Act .59 A right to be indemnified under an indemnity bond can be assigned. 60 Transfer
of right to recover profits arising out of land along with land would not be hit by Section 6 (e),
T.P. Act .61 A right to recover damages/compensation in respect of property, along with the property can
be transferred, Section 6 (e), would not be bar. 62
Section 6(e) of the Transfer of Property Act does not recognize transfer of "a mere right to sue" without
creating any interest in the immovable property.63
The expression "a mere right to sue" means a right to sue unconnected with the ownership of any property. Mere
right to sue is not property but is merely a title to get future property, where the right to recover damages in respect
of a property is transferred of a right to sue for damages is in such a case incidental to the property itself, it is
intimately connected with the enjoyment of the property. 64 A transfer of land together with the right to recover
damages is not barred by Section 6 (e),
T.P. Act .65 Section 6(e) provides that mere right to sue cannot be transferred, the word used is ‘mere’.
Transfer of a bare right to sue and of nothing else is prohibited. Property with an incidental right to sue for damages
may be transferred. 66 The transfer of entire business or undertaking along with right to sue is not tabboed. 67 The
right to recover interest provided in the mortgage deed cannot be treated as a mere right to sue or a right to recover
damages for breach of contract. 68
A suit was filed for declaration that the impugned Will executed by the plaintiff’s brother in favour of the defendant
was a forged one. On the death of the plaintiff, his son on the basis of the Will executed by the plaintiff in his favour
was allowed to continue the suit. The plaintiff had not transferred mere right to sue, rather by virtue of the Will the
son had become the owner of the property, as such had right to pursue the suit. 69
Where an owner of property transfers property, the vendee undertaking that he would fight out litigation in respect
of that property and in the event of success would pay fifty percent consideration was held valid, as there was not
transfer of a mere right to sue, but the property itself was transferred. 70
The right of company to claim damages against the transport company is neither assignable nor transferable. 71
Where a manufacturing company had insured the goods with the Insurance company so that in event of loss of
goods, the loss may be compensated by the Insurance company and the later company in turn may institute
proceedings against the transporter for the loss of goods caused and the manufacturing company had executed a
document in favour of the insurance company and subrogated its rights in respect of the damage to the goods in
consideration of amount payable to the insurance company, the document was not a document of conveyance
since the right of the manufacturing company was mere right for damages. 72
Acquiring sale deed in respect of the acquired land gives the transferee right to receive compensation, as there is
no transfer of right to sue, Section 6 (a), does not apply. 73
A right to sue for ejectment of the tenant accrued to the earlier landlord under the Rent Control Law cannot be
transferred. 74
A sale by the Official Receiver of an insolvent’s property of which he had never been in possession and which was
Page 22 of 69
S. 6 (A).
of a nebulous nature is a mere right to sue 75 and so also a sale by the Official Assignee in insolvency of lands in
possession of alienees from the insolvent are sales of the right to litigate and are to be deprecated, for even if they
are not within this clause they are open to the same objection. 76 A right to take accounts and to recover such sum
as may be found due by an agent is not assignable, being a mere right to sue, 77 but a right to recover an
ascertained and definite debt from an agent is transferable, 78 though in both cases there cannot be a purchase of
a mere right to sue for accounts. 79 The right of a co-sharer to profits against his co-sharer is alienable. 80 Nor can
an agent assign his right of indemnity before rendering accounts. 81 The test of transferability is whether the
inchoate right is attachable.
A mere right of action cannot be transferred. 82
But where money is due by an agent or purchaser to his principal or vendor the claim of the latter may be attached
and sold in execution of a decree against him although the amount of the debt is unascertained at the time. 83
Interest on a debt due prior to the assignment is not transferable as it is mere right to sue. 84 A claim for interest by
way of damages under
Section 73 of the Indian Contract Act, 1872 is a mere right to sue and cannot be transferred.85 There is
no provision in the
Indian Contract Act, 1872 , for the recovery of earnest money. The remedy is merely one for loss or
damage caused as on a contract broken under
Section 73 of the Indian Contract Act, 1872 which benefit is merely a right to sue and cannot be
transferred.86 Where a chitti containing a list of borrowed articles with their price was assigned it was held that the
assignment was of a personal claim which could not be transferred. What was recoverable was money in the form
of damages which after a breach is not an actionable claim but a mere right to sue. 87 A claim to damages for use
and occupation from a tenant holding over is a mere right to sue and not assignable. 88 Nor can a mere right to sue
for the remainder of maintenance allowance that may fall due in future be transferred. 1 Right to claim
compensation for use and occupation of the property from a third person cannot be transferred. 2 An assignment of
rights under an executory contract for the future sale of immovable property is not a mere right to sue, although a
right to sue is involved in it on breach of its conditions. 3 And a contract providing that the purchaser shall reconvey
the property to the vendor for consideration if the vendor offered to purchase the same at the time stated and for the
amount mentioned is enforceable by the assignee. It was not an incomplete contract the benefit of which could not
be assigned to a stranger until the offer has been accepted by the tender of the price. 4 Whether a claim for
damages arising out of a breach of contract or in tort is a mere right to sue is a question to be decided on the facts
of each case. 5 A suit to enforce an agreement to lend money on a mortgage is not maintainable. Though it is open
to the mortgagor to sue for damages for breach of the agreement to lend money he cannot transfer such a right.
Hence an assignee of his for part of the consideration due for a mortgage not paid is not entitled to recover. 6 But a
personal right under a settlement is transferable 7 and so is a right to contribution. 8
Where the consignment of goods insured by consignee was damaged during the course of transit, as a result of the
carrier’s negligence and the insurer made payment of the insured amount to the consignee, it did not discharge the
carrier of its liability for its negligence. However, the insured consignee was not held entitled to any additional
amount from carrier, the doctrine of subrogation was held step in and insurer of the consignee was held entitled to
get amount. 9
An agreement for the sale or purchase of immovable property is a contract and the benefit under the contract can
be assigned unless performance depends upon something personal or special. It is not a mere right to sue. 10 A
‘mere right to sue’ is a right, which arises out of contract, which is not specifically enforceable, or a right, whose
specific performance of contract cannot be obtained. Since a contract for sale of immovable property creates an
obligation annexed to the ownership of the land and the obligation arising thereunder is specifically enforceable,
such a right cannot be regarded as a mere right to sue, within the meaning of
Page 23 of 69
S. 6 (A).
Section 6 (e) of the T.P. Act , and such a right, in the light of the provisions of Section 15 (b) of Section
15(b) of
Specific Relief Act , is transferable and/or assignable.11 A right to re-conveyance of land is a property
and not a mere right to sue; such right can be assigned and the assignee can enforce the same. 12 Right to receive
offerings at mela can be transferred. 13 Right to receive offerings at the place of worship can be transferred. 14
A Decree is a transferable property, hence, it can be transferred. 15
When attachment is affected, right of a minor to have the sale set aside was not a mere right to sue but his interest
in his property. If this right were available to the legal representative of a minor who dies without avoiding the
transfer, it would also be available to a transferee. 16
Where an ex-minor transfers property unauthorizedly sold by his guardian during his minority, he transfers not a
mere right to sue but his interest in the property, though a suit may be necessary to avoid the transfer by the
guardian and recover possession from his alienee. 17 Assignment by the principal of the right recovery of money
dues to the agent after the preliminary decree in suit was held valid. 18
Assignment of Trade Mark along with its goodwill. —The owner of registered trademark has a
proprietary interest therein. The registered trademark is looked upon as property and it can be assigned or
transmitted whether with or without the goodwill of business concerned. 19
Where the owner of registered trademark had filed a suit for infringement of trademark claiming injunction, rendition
of accounts and damages, during the pendency of the suit, the plaintiff by a deed of assignment assigned the
trademark along with its goodwill, assignment was held perfectly legal and valid falling within the ambit of O. 22,
Rule 10,
C.P.C. ; the assignee was held competent to continue the suit.20
Mesne profits. —A right to sue for mesne profits is not transferable 21 even though they be in the
nature of damages. 22 Mesne profits are unliquidated damages. It is not a claim to any debt or to any beneficial
interest in immovable property. Like other profits, ‘mesne’ are the difference between the amount realised and the
expenses incurred in realising it. 23
According to
Section 2(12), CPC 1908 , "mesne profits" mean those profits which the person in wrongful possession
of such property actually received or might with ordinary diligence have received therefrom, together with interest
on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
These words may be sub-divided into two parts. The cases distinguish between an assignment of an interest to
which a right to sue is incident and the sale of a mere right to sue. The former is valid while the latter is not. 24
Defendants 1 to 4 and one Aminabai were entitled to a certain property which was decreed to them on partition.
Aminabai sold to plaintiff her one-fifth share with a right to recover mesne profits for four years from the defendants.
It was held that a sale of land together with an incidental right to recover mesne profits attached to the property
itself is valid. Section 6 (e) does not apply to such a sale. 25
Page 24 of 69
S. 6 (A).
The Courts of Calcutta, 26 Allahabad, 27 Patna 28 and Nagpur 29 have adopted the same view, viz. , that the
assignment of a mere right to sue does not convey any property but it would be otherwise if the property itself be
transferred. The Madras decisions have not been uniform. It was there held that a transfer of claim for past mesne
profits is invalid. Their soundness was doubted in a subsequent case by the same High Court. 30 Again, a right to
mesne profits accrued before sale cannot be transferred. 31 Turning to the English case they also emphasise the
distinction between assignment of a bare right of action for damages and the sale of property with all incidents
attached to it and uphold the validity of the latter, 32 Seetamma’s case and the earlier cases of the
Calcutta, 33 Allahabad 34 and Madras 35 High Courts were the result of an unnecessary close adherence to the law
of Torts in English Courts overlooking the distinction between a bare right to sue and a right only subsidiary to the
enjoyment of the property itself. The Madras decision above referred to was to recover damages from an agent for
being negligent in collecting rents and it was held that it was a mere right to sue within the meaning of Section 6 (e).
A transfer of a right to part mesne profits is invalid. 36 Where a right to mesne profits has been declared by a decree
but the exact amount has been left to be ascertained at a future stage in the same suit a transfer of such right is not
invalid. 37 Here the mesne profits are merged in the judgment before the assignment and the right under the
judgment is assignable although the original cause of action is not. Transfer of property which is the subject of
litigation is not a transfer of a mere right to sue. 38
Chemist shop in Government Hospital. —Where after tender notice, the lease of the shop in a
Government hospital for a period of 22 months was given to the petitioner, renewable for eleven months on
enhanced rents, the terms of the lease expressly provided that the lease could be terminated in the event of non-
payment of rent without notice, held the lease was a temporary one, could not be called a lease in perpetuity. The
petitioners had no right to seek extension of their lease, could not assert such right merely because the petitioners
had been holding over after the expiry of initial lease deed or extended deed. 39
Compensation. —Transfer of a mere right to pursue the litigation to recover compensation is clearly
prohibited by
Section 6 (e) of the T.P. Act . A transferee of the original claimants has no right to get compensation as a
mere right to sue cannot be transferred.40
Damages. —Damages follow on a breach of contract. The benefit of a contract is assignable. 41 What is
prohibited is the transfer after a breach of a right to sue for damages whether founded on contract or on tort. On
breach of contract by the seller the purchaser who was entitled to claim damages transferred his right to recover the
same to the plaintiff. It was held that the transfer was not of an actionable claim but of a mere right to sue prohibited
by clause (e) of the section. 42 And where after the seller’s breach the purchasers became insolvent and the Official
Assignee assigned the claim to one S.C., who again assigned it to the plaintiff who instituted the suit for recovery of
damages, it was held that the assignment of a claim for damages for breach of contract after breach was not an
actionable claim but a mere right to sue within the meaning of Section 6 (e) and therefore not transferable. 43 Both
these were cases of unliquidated damages for breach of contract. A claim for unascertained damages for breach of
contract is not assignable. 44 Applying the last mentioned case, the Madras High Court held that a mere right to
recover damages for negligence of an agent in failing to collect rent cannot be transferred. 45 Where a claim is
founded on tort it is well settled that the claim is not assignable. 46 But where a broken contract gives right to
specific performance a transfer of such a right is not opposed to law. 47 Under the Section 60 (e), a mere right to
sue for damages is not liable to attachment and sale and therefore there can be no assignment of a mere right to
sue.
A Full Bench of the Andhra Pradesh in the under mentioned case held that transfer of right to recover profits arising
out of land along with land would not be hit by Section 6 (e),
T.P. Act .48
Page 25 of 69
S. 6 (A).
Where all the partners of an unregistered firm retired, only one remaining partner continued to carry the business of
the firm, all the rights and liabilities of the firm were transferred to him, and incidentally right to sue for damages for
breach of a contract entered into with the Government was also transferred, suit filed by the sole remaining partner
for recovery of damages for breach of contract was held maintainable, would not be hit by Art. 6(e),
T.P. Act .49
Actionable claim. —This is defined by Section 3 of the Act and differs materially from a "mere right to
sue." The former is attachable and can be sold in execution while the latter cannot. Actionable claim can be
assigned while under this clause the assignment of a "mere right to sue" is prohibited. The definition of actionable
claim was inserted by
Section 2 of the Transfer of Property Act , 1900 (2 of 1900). Where as a result of cross transactions of
sale and purchase the total amount of difference in favour of the plaintiff No. 1 amounted to a certain sum and he
assigned the right to recover the amount to plaintiff No. 2 in discharge of a debt due by him, the defendant’s
contention that the amount of differences was really damages for breach of contract and plaintiff No. 1 had merely a
right to sue to recover the amount and the assignment to No. 2 was invalid under this clause was disallowed.50 On
a transfer of land a covenant running with the land follows with it. A suit on such a covenant is not within this clause.
51 Again, money due under a licence is not damages and may be validly assigned. 52 Nor is a suit to recover
money found due on taking of partnership accounts by the assignee of the partner founded on a mere right to sue
but is an actionable claim. 53 But where a partner having assigned his share to a stranger without the consent of his
other partners, it was held that no immediate rights accrued to the assignee against the others. Such an assignment
did not operate as an immediate dissolution of the firm nor has the assignee a right to call for an account of the
profits. He has to accept the profit as agreed to by the partners. It is only when dissolution occurs that the right of
the assignee arises to take action in the same way as his assignor could have done to claim an account as from the
date of the dissolution. 54 Here the Bombay High Court dissented from the view taken by the Calcutta High Court
that the assignment operated as dissolution of the partnership and entitled the assignee to sue. 55 This is in
accordance with
Section 29(i) of the Partnership Act, 1932 , sub-section (2) of which enacts that if the firm is dissolved, or
if the transferring partner ceases to be a partner, the transferee is entitled as against the remaining partners to
receive the share of the assets of the firm to which the transferring partner is entitled, and, for the purpose of
ascertaining that share, to an account as from the date of the dissolution. A claim to recover sums which the agent
fraudulently omits to bring into account with the principal from the agent if he has collected them, if he has not, from
the persons from whom they are due, is an actionable claim and not merely a right to sue and can be validly
assigned.56 A transfer of rents due prior to the transfer of immovable property does not fall under Section 8 of the
Act and clause (e) is not a bart to the maintainability of the suit 57 but a claim to damages for use and occupation
from a tenant holding over is a mere right to sue and not assignable. 58 And an assignment of rents cannot operate
in respect of future possible leases that may come into existence as the result of a renewal.
The plaintiff had made payment of the value of bunkers to the Petro Trade, the physical supplier of the bunkers.
The claim of the physical suppliers for the value of the bunkers was held actionable claim capable of being
assigned. The assignment of the claim made by the Petro Trade in favour of the plaintiff was valid and the plaintiff’s
suit on the basis of assignment was held maintainable. 59
A lessee covenanted to pay Government revenue and rendered himself liable in damages for breach of covenant.
The lessor sold the property to the purchaser after the lessee had failed to pay instalments of revenue which was
paid by the purchaser and deducted from the purchase price. Later the lessor executed a deed by which he
assigned to the purchaser his right to recover instalments, appointing him an attorney to sue for them. It was held
that the assignment was not a transfer of a right to sue but a definite sum of money and was a transfer of actionable
claim under Section 130 of the Act. 60 An assignment of a debt uncertain in amount which will become certain when
accounts are finally dealt with does not offend against the terms of clause (e) of the section. 61
Page 26 of 69
S. 6 (A).
Action for damages in tort. —An action for damages in tort for trespass is not assignable. 62
Right of indemnity. —An agent who has a right of indemnity from his principal is entitled to sue upon it
after rendering accounts, but not before he has accounted. It is a mere personal right to sue which cannot be
assigned under
Section 6(e) of the Transfer of Property Act .63
S. 6(e), and
Hindu Minority and Guardianship Act (32 of 1956), Sec tion 8(3).— Where a natural guardian of
minor alienates property without legal necessity and without permission of the Court, the transferee of property from
the minor within 3 years of attaining of majority by the minor can institute suit to set aside the sale by minor’s
guardian.
Section 8(3)of the Hindu Minority and Guardianship Act (32 of 1956), confers a right of suit in the special
circumstances postulated in that provision. The object of theAct being the protection of the minor, the legislature
has thought it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to
whom the minor has transferred his rights. The right transferred is an interest in property which is capable of
enforcement at the instance of the transferee as it was at the instance of the exminor prior to the transfer. Such a
provision, intended specially for the protection of the interests of the minor, must be read in harmony and
consistently with the general provisions contained in
Section 6 of T.P. Act .64
An order passed by a Railway Claims Tribunal has all the incidents of a decree and as such can be transferred. 65
Clause (f)—Public Office.
Public office. —In England the sale of public offices is governed by Statutes 5 and 6, Edw. 6. There is
no definition of a public office in the Act, but a public office would be one held by a public officer. According to
Section 134(5)of the Government of India Act, "office" includes place and employment. Under this clause a public
office cannot be transferred. To make an office a public office the pay must come out of national and not out of local
funds.66 A partnership agreement is not an assignment as to be void as infringing the Sale of Offices Act, 1551, and
Sale of Offices Act (1809). 67
An office of worship in a temple, which is heritable and partible, is not a public office. 68
Salary of a public officer. —This cannot be transferred whether before or after it has become payable.
A public officer is defined in
Section 2(17) of the Code of Civil Procedure, 1908 ; under Section 60, sub-clauses (h) and (i), the salary
or allowance of a public officer is not liable to attachment and sale except as therein provided. A receiver appointed
in a suit is a public officer.69 So also one appointed in insolvency. 70 A Cantonment Committee, 71 a British officer
in the Indian Army, 72 an officer in the Indian Staff Corps, 73 are public officers. An assignment by a Puisne Judge of
the Supreme Court of Madras of the sum to be paid to the "legal personal representatives" of such Judge not being
payable during the lifetime of the Judge is not an assignment of salary, within the Sale of Offices Act s, 1551 (c. 16)
and 1809 (c. 126) contrary to public policy. 74
Page 27 of 69
S. 6 (A).
When one brought up and educated his brother and there was an agreement between them that after entering into
vocation the brother so brought up would pay a percentage of his income to the other, such an agreement cannot
be said to be void, in case the brought up brother got employment in public services. Even
Section 74 of Indian Contract Act, 1872 , would not apply in such a case. The payment was neither in the
nature of penalty nor unconscionable or inequitable.75
Clause (g)—Stipends and Political Pensions.
Stipends to pensioners of Government. —Stipends allowed to military, air force and civil pensioners
of Government are not transferable. The words "air force" were inserted by Section 2 and 1 of the Repealing and
Amending Act , 1927 (X of 1927). There is no mention of naval pensions in sub-clause (g).
The word "pension" (pensionem payment) in its widest etymological sense can be construed as including all
payments of every kind and description to a retiring Government servant. 76 "Pension" in
Section 11 of the Pensions Act, 1871 , is a periodical allowance on account of past services or particular
merits or as compensation to dethroned princes, their families and dependants77 or periodical allowances made by
Government on political considerations or on account of past services or present infirmities or as a compassionate
allowance. 78 Evidently "pension", "pay", or "allowance" are treated as all of them ejusdem generis , importing
persons entitled to periodical money payments. The money paid to a retired military officer for the commutation of
pension does not retain its character as pension so far as to prevent it from being taken in execution. 79 A
percentage received by a khot for collecting the assessment is not "salary", nor is such a khot a "public officer",
within the contemplation of Section 60, clause (h) of the
Civil Procedure Code, 1908 .80 A personal covenant by a coroner to pay percentage of fees received at
every inquest is not illegal. 81 Bonus granted by the Government in addition to pension to an officer compulsorily
made to retire on account of reduction in the public service is not a pension. 82 Zamindari granted as a reward for
services rendered to Government is not a pension. 83 Immovable property granted in lieu of pension is not a
pension. 84 A grant which purports to be a grant only of the royal share of the revenue given in commutation of cash
is a grant of revenue only. 85
Pension is transferable. What is provided by Cl. (g) of Section 6 is that stipends allowed to Military, Naval, Air Force
and Civil Pensioners of the Government and political pension cannot be transferred. What is made non-
transferable, is, therefore stipend paid to Civil Pensioners and not the pension of that Civil Pensioner. 86
A grant of land revenue is not a pension 87 but it may take the form of an assignment of land revenue depending
upon the circumstances of each case whether or not a particular assignment of land revenue is a pension. 88 There
is no prohibition against an assignment of a pension not granted on political considerations or on account of past
services or present infirmities or as a compassionate allowance. The same Court, however, was divided in opinion
as to whether a pension included a grant of land revenue. 89
Political pensions. —These are exempt from attachment under Section 60, subsection (g). A pension
guaranteed payable by the Government of India by a treaty obligation contracted with another sovereign power is in
the strictest sense a political pension. 90
A pension payable to a political prisoner by the Government of India under Regulation III of 1818 does not cease to
be a political pension because the Government of India under some arrangement gets a foreign State to remit the
Page 28 of 69
S. 6 (A).
amount to the Government Treasury for payment. But it falls under the Pension Act, XXIII of 1871. An agreement
entered into by such prisoner with a creditor empowering the latter to withdraw the amount from time to time in
discharge of his debt is void under the provisions of the
Pensions Act as well as clauses (d) and (g) of
Section 6 of the Transfer of Property Act .91 Even though the political pension be unpaid at the time of
the prisoner’s death it is not liable to attachment. The character of the fund remained unchanged so long as it
remained unpaid in the hands of the Government. 92 There is no presumption that a jaghir is a political pension.
The onus is on the person who alleges it. 93
Gratuity. —Gratuity payable under the provisions of the

Payment of Gratuity Act is certainly property within the meaning of
Section 6, T.P. Act and therefore can be transferred.94
Clause (h)—Transfer Opposed to Interest or Against Public Policy or to a Disqualified Person.
Sub-clause (1). —This clause is sub-divided into three parts. The first part forbids the transfer of an
interest in property where the act of transfer is foreign to such interest, for example, lands held on Swastivachakam
(service tenure) cannot be transferred as the sale of lands is opposed to the nature of interest affected. 1 Land
burdened with performance of service of a public nature is inalienable, as already seen in dealing with clause (d).
Neither titles nor can medals and decorations be disposed of except according to regulations laid down by royal
warrant. 2 Property settled on trust which does not contain a power of alienation cannot be transferred. A
compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being
assigned or charged. 3 And where property is transferred to a married woman or for her benefit on condition that
she shall have no power during her marriage to transfer or charge the same or her beneficial interest therein cannot
be transferred. 4
There is nothing in the

T.P. Act disqualifying a minor to be a transferee. When a lease is created, it does not amount to transfer
of immovable property or interest therein simpliciter in favour of minor since a minor is also under an obligation to
pay stipulated rent. Besides payment of rent, he has to perform several obligations given under Section 108 -B,
T.P. Act . A guardian has no authority to impose any personal liability on the minor.5 The statutory
provision enacted in Section 6 (h) is that if the service holder had placed himself beyond the reach of the income
from the inam which is attached to the office by a transaction be it a lease or a mortgage or a sale, it would be
inoperative and invalid. The principle behind is that by being deprived of the income therefrom he cannot render
services for which inam was granted. 6
Primogeniture is a custom only and not a right. 7 The rule of primogeniture which prevails in England is applied to
impartible estates in India, some of which by custom have been held not to be alienable. In India succession to
certain ancestral estates are governed by family custom according to the rule of lineal primogeniture. According to
the law as understood prior to the decision in Sartaj Kuari v. Deoraj Kuari , 8 an impartible Raj had been considered
inalienable, but it was recognized in that case that the general rule thus established might be displaced by proof of
family local custom restricting alienation; the onus of proving the custom being cast upon the person who alleged it.
The trend of modern decisions is that the holder of impartible estates can alienate it by deed inter vivos 9
or by will. 10 In the Madras Presidency a single family cannot, by not alienating property for a number of years,
create a custom which would compel a Court to uphold that the property is inalienable. 11
Religious endowments in this country, whether they are Hindu (Devasathan or Sevasthan) or Mahomedan (wakf ),
Page 29 of 69
S. 6 (A).
are not alienable though their income may be temporarily pledged for necessary purposes. 12
A transfer of standing crops, which are at the absolute disposal of the archaka, is not opposed to public policy. 13
Sub-clause (2)—Transfer for immoral purpose. —This clause is a restraint on transfers for an
unlawful object or consideration within the meaning of
Section 23 of the Indian Contract Act, 1872 . The word ‘or’ between "consideration" and "object" as
occurring in that section is disjunctive and not conjunctive. These two words are not synonymous but distinct in
meaning. The word "object" means "purpose".14 This clause has been discussed at length in Section 25. Every
agreement of which the object or consideration is unlawful according to
Section 23 of the Indian Contract Act, 1872 is void, but possession under a void agreement brings the
transaction within the maxim "Pari delicto potior est conditio possidentis " and if the Court comes to the conclusion
that the parties were acting together with a view to perpetrate a fraud and did in fact perpetrate that fraud and that
there is no difference in the degree of guilt of the plaintiff who seeks redress and that of the defendant the duty of
the Court is not to assist either party. In such cases the law favours him who is actually in possession. 15 The above
rule is subject to the exceptions laid down in Section 84 of the Indian Trust Act, II of 1882. A further discussion on
the subject will be found in Section 53 of the Act.
It is true that section

Section 23 of the Indian Contract Act, 1872 applies to a contract as distinguished from transfer governed
by the provisions of the Transfer of the Property Act, but since a contractual tenancy is based upon the principles of
Contract, the related provisions of the
Indian Contract Act, 1872 would govern the validity of such a lease apart from the provisions contained
in this regard in the Transfer of the PropertyAct. That apart by virtue of the provisions of Section 6 (h) the said Act,
the provisions of
Section 23 of the Indian Contract Act, 1872 continue to govern the validity of a lease.16
Section 6 of the Transfer of Property Act , which deals with the topic of "what may be transferred",
provides that no transfer can be made for an unlawful object or consideration within the meaning of
Section 23 of the Indian Contract Act, 1872 . The result is that the validity of a transfer of property must
be tested in the light of
Section 23 of the Indian Contract Act, 1872 . Apart from
Section 6(h) of the Transfer of Property Act , which makes only
Section 23 of the Indian Contract Act, 1872 applicable to transfer of property, there is no other provision
in the
Transfer of Property Act , which makes
Section 24 of the Indian Contract Act, 1872 applicable to transfer of property.17 If the receipt of Selami
forms part of the consideration for the transfer, and the same is forbidded by law, the Court would not enforce such
agreement, which would run contrary to the provisions of Section 6 (h),
T.P. Act .18
Where the donor had adulterous cohabitation and executed a gift deed in favour of the woman, the motive for the
gift deed may be immoral, but not its consideration or object, such gift deed is not void and not hit by the provisions
of
Section 6 (h) of the T.P. Act . Past cohabitation which though was adulterous was only motive and not
the consideration or object of the gift. Therefore, the provision of
Section 23 of the Indian Contract Act, 1872 , were held not attracted in the case, as it only applies to
consideration or object of an agreement which the Court regards immoral or opposed to public policy.19
Page 30 of 69
S. 6 (A).
When transfers are tainted by immorality, the Court has a discretion which must be exercised judiciously, having
regard to all the facts and circumstances of the case, to decide whether the plaintiff is entitled to the relief by way of
restitution of the proper transfer even though such transfers may be void on the ground that its object or
consideration is immoral or opposed to public policy. The Court should not readily infer the object as future illicit
cohabitation easily alleged by one party and denied by the other without any regard for truth as in the present case.
20 Where a gift deed is without consideration, the question of unlawful consideration would not arise. 21
Where a matured person, a local rich politician and a Municipal Councilor also, had sexual relations with a woman
for about 5 years, transferred property to her and when quarrel started between the two filed suit for setting aside
the transfers, the Court refused to set aside the transfers. A Division Bench of the Bombay High Court observed
that apart from these statutory provisions, for more than two hundred years in this country the English equitable
principles have been followed in cases like to present one. The plaintiff is denied assistance of the Court on the
ground that the Court would not assist the plaintiff to benefit from his own immorality or fraud or illegality, either on
the basis of the maxim ‘he who seeks equity must do equity’ or he who comes into equity must come with clean
hands; or on the basis of such doctrines like: (1) Courts do not aid a party to an illegal undertaking: or (2) that the
law does not permit a party deliberately to put his property out of his control for an immoral purpose and then seek
intervention of the Court to regain the same after the immoral purpose is executed or accomplished; or (3) where
both parties are equally guilty law leaves the parties where it finds them and keeps itself comfortably aloof from the
obligation to determine the rights as between the guilty parties; or (4) that a party who claims an equitable relief
must come into Court with clean hands; or (5) that the party could not be allowed to blow hot and cold; or (6) to let
the mischief lie where its exists. 22 The only just and fair thing for the Court to tell such a person ordinarily, would be
"Let the property lie where your sexual dalliance and immoral pleasures placed it. The Court will not assist you now
to deprive further a fallen woman after you, perhaps with others like you, have robbed her of her youth, charms, all
social virtues, her life, her light and her love. The Court will say: Let her enjoy in her old age darkness the fruits of
her sins as you have enjoyed at least equally her sins". 23
In Balo v. Parbati , 24 the Court held that the assignment of mortgagee’s rights to a woman in consideration of past
cohabitation was not hit by
Section 6(h) of the Transfer of Property Act and is valid. The past cohabitation was the motive and not
the consideration for the assignment. The assignment was without consideration by way of gift and as such was not
hit by Section 6 (h). Where past cohabitation is the motive for the gift the gift was valid.25 Lease of the house for
running a brothel is for unlawful purpose, is invalid. 26
Transaction partly lawful. —Where the defendant had executed a simple mortgage in favour of the
plaintiff an insurance company before the company was merged in the Life Insurance Corporation of India and the
company retained a sum of Rs. 12000/- of the mortgage amount of Rs. 30,000/- advanced on a simple mortgage
executed in the year 1952, as interest free to be adjusted against subsequent allotment of share in favour of the
mortgagor, insurance company latter transferred it to share account, the adjustment of such amount was unlawful
as it was hit by Section 54 o A(2)of the Indian
Companies Act , 1913 (
Section 77 of the Companies Act, 1956 read with
Section 23 of the Indian Contract Act, 1872 ). Further in view of the fact that the Articles of Association of
the Company also prohibited the company from giving directly or indirectly any financial assistance by any means
for the purpose of or in connection with a purchase made or to be made by any person or any shares in the
company, it was held that the entire mortgage transaction was not invalid as the valid portion of the transaction was
severable from the valid portion. The suit of the Life Insurance Corporation of India for the recovery of the sum of
Rs. 12000/- was held not maintainable.27
Sub-clause (3). —This sub-clause prohibits the transfer to persons who are not competent to purchase
property by any law or enactment in force. It is the converse of Section 7 of the Act. Persons disqualified to be
Page 31 of 69
S. 6 (A).
transferees are those enumerated in Section 136 of this Act and O. 21, r. 73 of the
Code of Civil Procedure, 1908 . Although a minor is qualified to be a transferee such transfers are,
however, confined to sales28 and mortgages 29 and not to leases 30 which are after the amendment of Section 107
by Act 20 of 1929 required to be executed both by the lessor and the lessee. Again, a person appointed as
guardian of a minor cannot purchase property even under an order of the Court if he has failed to furnish the
security required of him as a guardian. The disqualification does not extend to a transfer prohibited to a person not
holding a certain certificate required to be obtained by him, 31 nor does it attach to a Buddhist monk who may hold
property such as paddy land. 32
When the statute e.g.

Foreign Exchange Regulation Act itself provides for the consequences of the violation of the provisions
of the Act and when it is not provided that the violation will result in the transaction becoming void, it cannot be held
that such transfers are void in law and no right was obtained by the plaintiff by reason of such provision.33
Clause (i)—Other Non-transferable Interest.
Generally. —Clause (i) was added by

Section 4 of the Transfer of Property Act (1882) Amendment Act, 1885 (III of 1885). It lays down three
exceptions to the general rule enunciated in the section that property of any kind may be transferred. Exception to
clause (j) of Section 108 is a reproduction of this clause. By reason of Section 117 that exception cannot be
extended to agricultural leases whereas this restriction would apply to such leases.
Exception (1). —This exception lays down that nothing in this section shall be deemed to authorize a
tenant having an untransferable right of occupancy to assign his interest as such tenant. There are various local
Acts the policy of which is to secure proprietary rights and all devices for the relinquishments of such rights are
contrary to law and are illegal and void. 34 An occupancy holding is a holding in respect of which there is an
occupancy right. Whether a right of occupancy which is not transferable by custom or local usage is a right which
can be transferred at all was considered by a Full Bench of the Calcutta High Court which laid down that :— In
transfer for value of occupancy holdings apart from custom or legal usage :
(1) The transfer of the whole or a part is operative against the raiyat
(2) where it is made voluntarily
(3) where made involuntarily and the raiyat with knowledge fails or omits to have it set aside.
(4) The transfer is operative as against a landlord in all cases in which it is operative against the raiyat,
provided the landlord has given his previous or subsequent consent.
(5) The transfer of the whole or a part is operative as against all other persons where it is operative against the
raiyat. 35
In the same Court in a suit to recover joint possession of an occupancy holding in respect of his share by a co-
sharer landlord on the ground that the defendant acquired no title by purchase as it was not transferable by custom
and there was an abandonment of the holding by the former tenant the defence was that the plaintiff was not
entitled to joint possession and that he could not get any relief except by bringing a partition suit. It was held that the
plaintiff was entitled to relief claimed and that the claim for joint possession without partition was maintainable. 36 A
mortgage of an occupancy holding is void in its entirety and no decree can be obtained on the personal covenant.
To enforce such an agreement would be contrary to the provisions of Sections
Page 32 of 69
S. 6 (A).
Section 23 and
24 of the
Indian Contract Act , IX of 1872.37 The inclusion of non-transferable occupancy holding along with other
properties which could be legally transferred did not make the whole transaction illegal. 38
This provision is intended to apply to cases where by virtue of contract or even by law, right of occupancy of tenant
is un-transferable. A tenant at sufferance cannot be treated as a tenant as such. He is only a former tenant who
holds over. 39
Neither a relinquishment 40 nor a hypothecation 41 by an occupancy tenant of his holding is a transfer within the
prohibition of Section 9 of Act XVIII of 1873 (N.W.P. Rent Act ), but a mortgage with possession is. 42 The policy of
the Oudh Rent Act is to keep the relationship of landholder and tenant subsisting in spite of either or both of them
and it can be terminated only in the manner provided by the Act. 43 On the execution of a usufructuary mortgage of
a non-transferable holding and the abandonment of it by the tenant the landlord is entitled to treat the mortgagee as
trespasser and to ask for his ejectment. 44 As to sale of occupancy right with zemindar’s consent a Division Bench
of the same court was divided in opinion. 45
Before the passing of the

Transfer of Property Act, 1882 , a lease of homestead and was not transferable by law.46 It has been
observed that although occupancy land is declared by the Agra Tenancy Act and by
Section 6(i) of the Transfer of Property Act to be non-transferable, a transfer thereof is not expressly
prohibited by law or declared to be otherwise unlawful within the meaning of Sections
Section 23 and
24 of the
Indian Contract Act, 1872 or
Section 6(h) of the Transfer of Property Act .47 It is respectfully submitted that the above observations
are open to criticism.
Exception (2). —The clause forbids an assignment of an estate by a farmer who is in default in paying
land revenue. Arrears of land revenue due on account of land by any landholder are a paramount charge on the
holding and every part thereof and failure in payment renders the holding liable to forfeiture. 48
Similar provisions are available in the Revenue Codes of other provinces.
Exception (3). —The Court of Wards established by Legislative enactment is for superintendence and
protection of persons and properties of minors and other disqualified properties of land. There are various Courts of
Wards established for the several provinces of India. In the Bombay Presidency there is ActI of 1905 which extends
to the whole of the Presidency except the City of Bombay and Aden. In Madras there is the Court of Wards Act,
1902, and in Bengal,Act IX of 1879 as amended by Act III of 1881 and I of 1906. In the United Provinces of Agra
and Oudh there is the Court of Wards Act, IV of 1912, in the Punjab,Act II of 1903, in the Central Provinces Act
XXIV of 1899, in the provinces of Bihar and Orissa Act IV of 1912 and in Ajmer and Merwara Regulation I of 1888.
A lessee of an estate under the management of a Court of Wards cannot assign his lease under Section 6,clause (i)
of the
Transfer of Property Act, 1882 . No ward is competent, without the sanction of the Court of Wards, to
create any charge upon or interest in his property or any part thereof. Hence a surrender by two Hindu widows,
Page 33 of 69
S. 6 (A).
disqualified proprietors under the Court of Wards Act, 1879, to reversionary heirs without the sanction of the Court
of Wards, was declared void and the transaction was ineffectual to vest the property in them.49
Agreement for sale. —In case the agreement for sale does not materialize in a sale deed duly
executed and registered, no title in the subject matter of the agreement can pass to the other party. 50
Miscellaneous. —A property, which is not in existence on the day of the contract but would be available
in due course of time, becomes potential property and a sale in respect of such property is established by contract.
The title in such property passes unto the purchaser although the seller holds it in the capacity of a trustee. 51 In a
contract for the supply of huge quantity of the coal ash, in the case of breach compensation is not the adequate
remedy. 52
Construction of a document. —When a person takes properties under a document the initial and the
normal presumption is that he takes them under a legal right, unless the recitals in the document or at least the
circumstances indicate otherwise indicate that what is being given to him is a gift or a bequest. 53
Persons competent to transfer.
41 ILR 5 Bom 99 : 38 Cal 13.
42 Vide REPORT OF THE SELECT COMMITTEE, FIRST REPORT ON THE TRANSFER

OF PROPERTY (AMENDMENT) BILL, 1929.
43 Kansing Kalsung Thakore v. Rabari Magnbhai Vashrambhai,

(2006) 12 SCC 360 (367):
(2006) 12 SCALE 360 .
44 Mohd. Noor v. Mohd. Ibrahim,

(1994) 5 SCC 562 [
LNIND 1994 SC 1535 ] (565) :
(1994) 5 SCC 562 [
LNIND 1994 SC 1535 ].
45 Chandy Varghese v. Abdul Khader,

(2003) 11 SCC 328 :
(2003) 6 SCALE 173 .
46 Chandy Varghese v. Abdul Khader, (2003) 11 SCC 328 :

(2003) 6 SCALE 173 .

1974 SC 1728 :
(1974) 2 SCC 319 (328, 329).
Page 34 of 69
S. 6 (A).
48 K. Balakrishnan v. K. Kamalam , AIR 2004

SC 1257 (1260) :
(2004) 1 SCC 581 .
49 Mohini Mohan Chakravarthy v. Mohan Lal Thalia ,

AIR 1964 Cal 470 [
LNIND 1964 CAL 48 ] (DB).
50 Prem Sukh Gulgulia v. Habibullah ,

AIR 1945 Cal 355 (358) (DB) : 49 CWN 371.
51 Siddaraju v. Ganghadhara,
AIR 2012 Kant 143 [
LNIND 2012 KANT 57 ] (144, 145).
52 Brahmadeo v. Harjan Singh ,

(1898) 25 Cal 778 .
53 Palikandy v. Krishnan Nair , (1917) 40 Mad 302.
54 Lal Baijnath v. Chandrapal ,

(1925) 47 All 55 ; Mahomed Ali v. Maderisah ,
AIR 1927 Oudh 297 ; Sheo Mangal v. Jagan Lohar ,
AIR 1930 All 377 .
55 Collector of Thana v. Hari Sitaram , (1882) 6 Bom 546.
56 Nazir Hasan v. Matin-uz-Zamin ,

AIR 1925 Oudh 299 .
57 Ram Shankar Lal v. Ganesh Prasad ,

(1907) 29 All 385 .
58 Kanti Ram v. Kutubuddin ,

(1895) 22 Cal 33 ; Mata Din v. Kazim Husain ,
(1891) 13 All 432 .
59 Golam v. Parbati ,
(1909) 36 Cal 665 ; Surendra Narain v. Bhai Lal Thakur ,
(1895) 22 Cal 752 .
60 Balwant Singh v. Joti Prasad ,

(1918) 40 All 692 .
61 Ma Yait v. The Official Assignee ,

(1930) 32 Bom LR 125 (1930) 8 Rang 8 : 57 IA 10.
Page 35 of 69
S. 6 (A).
62 Balmukund v. Tula Ram ,

(1928) 50 All 394 ; Bhagwan Deen v. Billeshur ,
AIR 1937 Oudh 15 .

(1916) 39 All 196 .
64 Ahmad-ud-din v. Ilahi Baksh ,

(1912) 34 All 465 .

(1928) 50 All 394 .
66 See Nitya Gopal v. Nani Lal ,

(1920) 47 Cal 990 , 1001.

(1928) 50 All 394 .
68 Kalka Singh v. Jagwant Kunwar ,

AIR 1926 Oudh 69 .
69 Mohan Singh v. Sewa Ram ,

AIR 1924 Oudh 209 .
70 Munshi Gobind v. Jagdeep Lal ,

AIR 1924 Pat 185 ; Jadunath v. Ruplal ,
(1906) 33 Cal 967 ; Dharam Chand v. Mouji Sahu, (1912) 16 CLJ 436.
71 The Metal Corpn. of India v. Union of India ,

AIR 1970 Cal 15 [
LNIND 1969 CAL 75 ]: 73 CWN 676 (FB).
72 N. Bakshi v. Accountant General ,

AIR 1957 Pat 515 (DB) :
1957 BLJR 299 : ILR 36 Pat 557.
73 Joydev Sen v. State of West Bengal ,

AIR 2010 (NOC) 256 (Cal).
74 Union of India v. Iqbal Singh , AIR

1976 SC 211 (212) :
(1976) 1 SCC 570 [
LNIND 1975 SC 505 ].
75 Lal Baijnath v. Chandrapal ,

(1925) 47 All 55 ; Mahomed Ali v. Maderisah ,
AIR 1927 Oudh 297 .
Page 36 of 69
S. 6 (A).
76 Katar Singh v. B. Bishamber ,

AIR 1929 All 578 .
77 (1869) 12 M.IA 292, 307.
78 Ramasami v. Ramasami , (1906) 30 Mad 255.
79 (1906) 30 Mad 255.
80 Laliteshwar v. Rameshwar ,
(1909) 36 Cal 481 ; Hargowan v. Baijnath ,
(1909) 32 All 88 ; Dhoorjeti v. Dhoorjeti , (1906) 30 Mad 201 ; Pindiprolu v.
Pindiprolu , (1907) 30 Mad 486 ; Abdool v. Goolam , (1905) 30 Bom 304.
81 Samrathi v. Parasuram ,
AIR 1975 Pat 140 (143).
82 Chacko Thomas v. Mathai Abraham , AIR 1954 Trav-Co. 357 :

1954 KLT 111 .
83 Krishnakumar G. v. Union of India,

AIR 2011 Ker 166 [
LNIND 2011 KER 648 ] (175) (DB) :
2011 (4) TAC 77 .
84 Shyam Narain v. Mangal Prasad ,

(1935) 57 All 474 ; Syed Bismilla v. Manulal ,
AIR 1931 Nag 51 .
85 Jumma Masjid v. Kodimaniandra Deviah , AIR

1962 SC 847 (850) : 1969 Supp (2) SCR 554; Jumma Masjid v. K.A. Devaiah ,
AIR 1953 Mad 637 [
LNIND 1952 MAD 261 ] (FB) :
ILR 1953 Mad 42 :
(1953) 1 MLJ 388 .

1962 SC 847 (852, 853) : 1969 Supp (2) SCR 554; Jumma Masjid v. K.A. Devaiah ,
AIR 1953 Mad 637 [
LNIND 1952 MAD 261 ] (FB) :
ILR 1953 Mad 42 :
(1953) 1 MLJ 388 .
87 Jumma Masjid v. Kodimaniandra Deviah, AIR

1962 SC 847 (852) : 1969 Supp (2) SCR 554.

1962 SC 847 (852) : 1969 Supp (2) SCR 554.
Page 37 of 69
S. 6 (A).
89 Basantakumar Basu v. Ramshankar Ray ,

(1932) 59 Cal 859 ; Comm. of Wealth Tax Gujarat, Ahmedabad v. Ashok Kumar
Ramanlal ,
AIR 1967 Guj 161 ; Ma Yait v. The Official Assignee , AIR
1930 PC 17 : (1930) 8 Rang 8.
90 Comm. of Wealth Tax Gujarat, Ahmedabad v. Ashok Kumar Ramanlal ,

AIR 1967 Guj 161 ; Ma Yait v. The Official Assignee , AIR
1930 PC 17 .
91 Balwant Singh v.
Joti Prasad ,
(1918) 40 All 692 ; Basantakumar v. Ramshankar ,
(1932) 59 Cal 859 ; Ma Yait v. Mahomed Ebrahim , AIR 1927 Rang 165(1927) 5
Rang 145 ; Shujaul v. Muhammad ,
(1927) 25 ALJ 41 ; Umesh Chandra v. Zahur Fatima ,
(1891) 18 Cal 164 , 176 : 17 IA 201.
92 Phulwanti v. Janeshar ,
(1924) 46 All 575 , 592; Ma Yait v. Official Assignee ,
(1930) 32 Bom LR 125 (1930) 8 Rang 8 : 57 IA 10.
93 Ma Yait v. Official Assignee ,

(1930) 32 Bom LR 125 : (1930) 8 Rang 8 : 57 IA 10.
94 E.Adinarayan v. Ramahari ,
AIR 1980 Ori 95 [
LNIND 1980 ORI 67 ] (97) (DB); Subbareddi v. Govindareddi ,
AIR 1955 Andhra 49 (53); Mylapuram Krishna Reddy v. Thota Yaganti Reddy , AIR
1955 NUC (Andhra) 3617 : (1954) 2 MLJ (Andh) 117; Mookammal v . Subramanian,
(2010) 2 MLJ 576 [
LNIND 2009 BMM 1237 ] (579) (Mad).
95 Subbareddi v. Govindareddi ,
AIR 1955 Andhra 49 (53); Mylapuram Krishna Reddy v. Thota Yaganti Reddy , AIR
1955 NUC (Andhra) 3617 : (1954) 2 MLJ (Andh) 117.
96 Bachhu Singh v. Harbans Singh ,

AIR 1953 All 213 [
LNIND 1951 ALL 190 ] (214, 215) : 1952 All WR HC 52.
97 Krishna v. Damodara , AIR 1952 Trav-Co 351 (353) :

1952 KLT 203 (DB).
98 Radhya v. Kamraya ,
AIR 1951 MB 120 (121).
99 Chanderjit Das v. Debi Das ,

AIR 1951 All 222 (227) (DB) :
ILR (1953) 1 All 437 .
1 Chanderjit Das v. Debi Das ,

AIR 1951 All 222 (227) (DB) :
Page 38 of 69
S. 6 (A).
ILR (1953) 1 All 437 ; Uma Shankar v. Ram Charan ,

AIR 1939 All 689 : 1939 All LJ 950 (FB).
2 Hameed v. Jameela,
AIR 2010 Ker 44 [
LNIND 2009 KER 796 ] (47).
3 Mookammal v. Subramanian,
(2010) 2 MLJ 576 [
LNIND 2009 BMM 1237 ] (580) (Mad).
4 See Indian Lunacy Act, 1925, Sections 142 and 150.
5 Ward v. Grey , (1859) 29 LJ Ch. 75.
6 Re. Ellenborough, Towry Law v. Burne , (1903) 1 Ch. 697.
7 Meck v. Kettlewell , (1843) 13 LJ Ch. 28 : 41 ER 662.
8 Re. Parsons, Stockley v. Parsons , (1890) 45 Ch. D. 51; Allcard v. Walker , (1896) 2 Ch.
369; Re Mudge , (1914) 1 Ch. 115; Re. Green, Green v. Meinall , (1911) 2 Ch. 275; see The Section 60 (m).
9 Davies v. Angel , (1862) 4 De. G.F. & J. 524 : 45 ER 1287; Bright v. Tyndall , (1876) 4
Ch. D. 189; Clowes v. Hilliard , (1876) 4 Ch. D. 413.
10 (1891) 3 Ch. 48.
11 Mukteshwar Rai v. Ram Kewal Rai ,

AIR 1962 Pat 28 (DB).
12 Mukteshwar Rai v. Ram Kewal Rai ,

AIR 1962 Pat 28 (DB); R.K. Singh v. A.K. Singh ,
AIR 1948 Pat 362 .
13 Abdul Kadir v. Ahmad Jaragavar ,

AIR 1956 Mad 681 (682); see also Jagannada Raju v. Sri Rajah Prasazda Rao ,
AIR 1916 Mad 579 ; Dhanapala Chettiaar v. Krishna Chettiar ,
AIR 1955 Mad 165 [
LNIND 1954 MAD 163 ]:
ILR 1955 Mad 1122 :
(1955) 1 MLJ 72 .
14 Gulam Abbas v. Haji Kayyum Ali , AIR

1973 SC 554 (557) :
(1973) 1 SCC 1 [
LNIND 1972 SC 442 ].
Page 39 of 69
S. 6 (A).
15 Kochunni Kochu v. Kunju Pillai , AIR 1956 Trav-Co. 217 (DB):

1956 Ker LT 96 [
LNIND 1955 KER 182 ] :
ILR 1956 TC 277 [
LNIND 1955 KER 182 ] ; Latafat Hussani v. Hedayat Hussain ,
AIR 1936 All 573 .
16 Jameela Beevi v. Basheer,

AIR 2012 Ker 107 [
LNIND 2012 KER 347 ] (109) : 2012 (2) KLT SN 27 :
2012 (2) KLJ 273 .
17 Thomas v. Freeman , (1706) 2 Vern. 563 : 23 ER 967.
18 Davies v. Angel , (1862) 4 De G.F. & J. 524 : 45 ER 1287; see the Section 60 (m).
19 Perry v. Phelips , (1810) 17 Ves. 173 : 34 ER 67; Re. Parsons Stockley v. Parsons ,
(1890) 45 Ch. D. 51.
20 Puncha Thakur v. Bindeswari Thakur ,

(1915) 43 Cal 28 .
21 Rajah Varmah v. Eavi Varmah ,

(1876) 4 IA 76 ; Durga Bibi v. Chanchal Ram ,
(1881) 4 All 81 ; Srimati Mallika v. Ratnamani ,
(1897) 1 CWN 493 .
22 Rama Pottar v. Kumaran Chidayath ,

AIR 1923 Mad 316 .
23 Ahmad-ud-din v. Majlis Rai ,

(1881) 3 All 12 .
24 Ehsanul Haq v. Mohd. Umar ,

AIR 1973 All 425 (426) : 1973 All LJ 510.
25 Ramakkal v. Ramasami Naickan , ILR 22 Mad 522; Sudalai Ammal v. Gomalthi Ammal ,
23 Mad LJ 355; Karpagathachi v. Nagarathinathachi , AIR
1965 SC 1752 (1753, 1754) :
(1965) 3 SCR 335 [
LNIND 1965 SC 76 ].
26 See Kailash Chandra Chuckerbutty v. Kashi Chandra , ILR 24 Cal 339; Subbammal v. Krishna Aiyar, 26
Mad LJ 479:
AIR 1914 Mad 327 [
LNIND 1913 MAD 256 ]; Ammani Ammal v. Periasami Udayan , 45 Mad LJ 1:
AIR 1924 Mad 75 [
LNIND 1923 MAD 36 ]; Karpagathachi v. Nagarathinathachi, AIR
1965 SC 1752 (1753, 1754) :
(1965) 2 SCR 335 .
Page 40 of 69
S. 6 (A).
27 Karpagathachi v. Nagarathinathachi , AIR 1965

SC 1752 (1754) :
(1965) 3 SCR 335 [
LNIND 1965 SC 76 ].
28 Karpagathachi v. Nagarathinathachi , AIR

1965 SC 1752 (1753, 1754) :
(1965) 3 SCR 335 [
LNIND 1965 SC 76 ].
29 Karpagathachi v. Nagarathinathachi , AIR

1965 SC 1752 (1753, 1754) :
(1965) 3 SCR 335 [
LNIND 1965 SC 76 ].
30 Lakshmanaswami v. Rangamma , (1902) 26 Mad 31.
31 Puncha Thakur v. Bindeswari ,

(1916) 43 Cal 28 ; Kashi Chandra v. Kailas Chandra ,
(1899) 26 Cal 356 .
32 Dino Nath v. Pratap Chandra ,

(1899) 27 Cal 30 , 32; Shoilojanund Peary Charan ,
(1902) 29 Cal 470 .
33
(1916) 43 Cal 28 .

(1917) 39 All 196 .

(1928) 50 All 394 .
36 Ahmad-ud-din v. Ilahi Baksh ,

(1912) 34 All 465 .
37 Badri Nath v. Punam , AIR 1973 J&K 7(9) (FB). A Division Bench of the Allahabad High
Court in Balmukund v. Tula Ram ,
AIR 1928 All 21 : (1528) 50 All 394 : 131 C 242 observed.
38 Dani Ram v. Jamuna Das, 2010

AIHC 1058 (1060) (All) :
AIR 2010 (NOC) 524 (All) : 2010 (1) All LJ 706 :
2009 (77) All LR 708 .
39 Badri Nath v. Punna ,

AIR 1979 SC1314 [
LNIND 1979 SC 127 ] (1318) :
(1979) 3 SCC 71 [
LNIND 1979 SC 127 ].
Page 41 of 69
S. 6 (A).
40 Ram Nirunjun v. Payag Singh ,

(1881) 8 Cal 138 .
41 Nasirul Haq v. Faiyazul ,

(1911) 33 All 457 .
42 Bindumati v. Narbada Prasad, AIR

1977 SC 394 (396) :
(1976) 4 SCC 626 [
LNIND 1976 SC 398 ].
43 Basanta Kumar v. Ramshankar ,

(1932) 59 Cal 859 ; Ponnambala v. Sivagnan , (1894) 17 Mad 343 :
21 IA 71; Bahadur Singh v. Mohar Singh ,
(1901) 24 All 94 : 29 IA 1; Narayan Ganesh v. Baliram ,
(1918) 46 Cal 76 : 45 IA 179; Mata Prasad v. Nageshar Sahai ,
(1925) 47 All 883 : 52 IA 398.
44 Basantkumar Basu v. Ramshankar Ray ,

(1932) 59 Cal 859 .
45
(1921) 48 Cal 536 .
46 Annada Mohan Roy v. Gour Mohan Mallik ,

(1923) 50 Cal 929 : 50 IA 69.
47 Nund Kishore v. Kanee Ram ,

(1902) 29 Cal 355 ; Ram Chandar v. Kallu ,
(1908) 30 All 497 ; Jagannath v. Dibbo ,
(1908) 31 All 53 ; Sham Sundar v. Achhan Kunwar ,
(1898) 21 All 71 : 25 IA 183; Bhana v. Guman Singh ,
(1918) 40 All 384 ; Manickam v. Ramalinga , (1905) 29 Mad 120 ; Pindiprolu v.
Pindiprolu , (1907) 30 Mad 486 ; Dhoorjeti v. Dhoorjeti , (1906) 30 Mad 201 ; Muthuveeru v. Vythilinga , (1908) 32 Mad
206 ; Narasimham v. Madhava,
(1903) 13 MLJ 323 [
LNIND 1903 MAD 31 ] ; Subbaraya v. Muthayammal,
(1918) 35 MLJ 684 [
LNIND 1918 MAD 22 ] ; Marangami v. Meera Labbai,
(1913) 24 MLJ 258 [
LNIND 1912 MAD 570 ].
48 Sham Sundar v. Achhan Kunwar ,

(1898) 21 All 71 : 25 IA 183.
49 Nandkishore v. Kanee Ram ,

(1902) 29 Cal 355 .
50
(1898) 25 Cal 778 .
Page 42 of 69
S. 6 (A).
51 Bahadur Singh v. Mohar Singh ,

(1901) 24 All 94 : 29 IA 1; Venkatanarayana v. Subbammal , (1915) 38 Mad 406 :
42 IA 126; Joti Lal v. Beni Madho ,
AIR 1937 Pat 280 .
52 (1916) 39 Mad 364 : 43 IA 207.
53 Brindaban v. Sureswar, (1909) 10 CLJ 263.
54 Amrita Narayan v. Gaya Singh ,

(1917) 45 Cal 590 : 45 IA 35; Harnath Kunwar v. Indar Bahdur Singh ,
(1923) 45 All 179 : 50 IA 69; Ramasami v. Ramasami , (1906) 30 Mad 255 ; Nund
Kishore v. Kanee Ram ,
(1902) 29 Cal 355 ; Dwarka Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 ; Mahadeo Prasad v. Mathura Chaudhari ,
AIR 1931 All 589 ; Sri Jagannada v. Sri Rajahprasada , (1916) 39 Mad 554 ;
Venkatasubbayya v. Subramaniam ,
AIR 1925 Mad 941 .
55 Ramasami v. Ramasami , (1907) 30 Mad 255 ; Durga Prasad v. Narain ,

AIR 1929 Oudh 63 .
56 Kondama Naicker v. Kandasami Goundan , (1924) 47 Mad 181 (189) 51 IA 145.
57 Kanhai Lal v. Brij Lal ,

(1918) 40 All 487 : 45 IA 118; Khuni Lal v. Gobind Krishna ,
(1911) 33 All 356 ; Hiran Bibi v. Sohan Bibi ,
(1914) 18 CWN 929 ; Upendra v. Bindesri ,
(1915) 20 CWN 210 ; Pulliah Chetty v. Varadarajalu , (1908) 31 Mad 474 ; Barati Lal
v. Salik Ram ,
(1916) 38 All 107 ; Chahlu v. Parmal ,
(1919) 41 All 611 .
58 Hardei v. Bhagwan Singh ,

(1919) 24 CWN 105 ; Mathuraman v. Ponnuswamy,
(1915) 29 MLJ 214 ; Basangowda v. Irgowdatti , (1923) 47 Bom 597 ; Annu v.
Shripati ,
(1930) 32 Bom LR 705 ; Bahadur Singh v. Ram Bahadur ,
(1923) 45 All 277 ; Moti Shah v. Gandharp Singh ,
(1926) 48 All 637 ; Raghubir Datt v. Narain Datt ,
AIR 1930 All 498 ; Kanta Chandra v. Ali Nabi ,
(1911) 33 All 414 ; Mangal Singh v. Ghasita ,
AIR 1929 Lah 485 .
59 Pokhar Singh v. Dulari Kunwar ,

(1930) 52 All 716 ; Ram Charan v. Girjanandami Devi ,
AIR 1959 All 473 [

(1932) 59 Cal 859 , 884.
Page 43 of 69
S. 6 (A).
61 (1861) 10 HLC. 191.
62
(1888) 13 AC 523 .
63 (1882) 21 Ch. D. 9.
64
(1914) 42 Cal 801 : 42 IA 1.

(1932) 59 Cal 859 ; Annada Mohan Roy v. Gour Mohan Mullick ,
(1923) 50 Cal 929 : 50 IA 239.
66 Tilakdhari v. Khedanlal ,
(1920) 48 Cal 1 ; Bhairab Chandra v. Jivan Krishna, (1920) 33 CLJ 184 ; Dwarka
Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 ; Bindeswari Singh v. Har Narain Singh ,
AIR 1929 Oudh 185 : 4 Luck 622.
67 Harnath Kunwar v. Indar Bahadur Singh ,

(1923) 45 All 179 : 50 IA 69.
68 Ramgowda v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396; Basappa v. Fakirappa , (1922)

46 Bom 292 ; Fateh Singh v. Thakur Rukmini ,
(1923) 45 All 339 .
69 Fateh Singh v. Thakur Rukmini ,

(1923) 45 All 339 .
70 (1919) 44 Bom 488.
71 (1921) 46 Bom 292.
72 Mahadeo Prasad v. Mata Prasad ,

(1921) 44 All 44 .
73
(1918) 46 Cal 566 .
74 Bajrangi v. Manokarnika ,
(1907) 30 All 1 : 35 IA 1.
75 See also Rangasami Gounden v. Nachiappa Gounden , (1919) 42 Mad 523, 538 : 46 IA 72.
76 (1919) 44 Bom 488.

Page 44 of 69
S. 6 (A).
77 (1927) 51 Bom 475.
78 (1921) 46 Bom 292.
79 (1919) 42 Mad 523 : 46 IA 72.
80 Annu v. Shripati ,
(1930) 32 Bom LR 705 .
81 Ram Charan v. Girjanandami Devi ,

AIR 1959 All 473 [

(1923) 45 All 339 ; but see Pokhar Singh v. Dulari Kunwar ,
(1930) 52 All 716 , 727.
83 Naranjan Singh v. Dharam Singh ,

AIR 1930 Lah 928 .
84 E. Adinarayan v. Ramahari ,
AIR 1980 Ori 95 [
LNIND 1980 ORI 67 ] (97) (DB) : 49 CLT 343.
85 Prem Sukh Gulgulia v. Habib Ullah ,

AIR 1945 Cal 355 (358) (DB) :
(1954) 2 Cal 375 : 49 CWN 371.
86 Baikunth Singh v. Jhulan Singh ,

AIR 1950 Pat 488 .
87 Ram Pratap v. Indrajit ,

AIR 1950 All 320 [
LNIND 1949 ALL 223 ].
88 Raikumar Singh v. Abhai Kumar Singh ,

AIR 1948 Pat 362 .
89 Abdul Valid Khan v. Mussumat Nuran Bibi ,

(1885) 12 IA 91 ; Shehammal v. Hassan Khani Rawther, AIR 2011
SC 3609 (3614) : 2011 (8) SCALE 186 :
(2011) 9 SCC 323 :
(2011) 89 All LR 236 :
(2012) 1 Raj LW 352 (SC).
90 Asa Beevi v. Karuppan Chetty , (1918) 41 Mad 365 ; Marangami Rowther v. Nagur
Meera,
(1913) 24 MLJ 258 [
Page 45 of 69
S. 6 (A).
LNIND 1912 MAD 570 ] ; Abdul Kafoor v. Abdul Razack ,

AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (DB) :
(1958) 2 MLJ 492 [
LNIND 1958 MAD 44 ] ; Sumsuddin v. Abdul Hussain , (1907) 31 Bom 165 ; Rebati
Mohan Das v. Ahmed Khan, (1909) 9 CLJ 50 ; Hasan Ali v. Nazo ,
(1889) 11 All 456 ; Abdool Hoosein v. Goolam Hoosein , (1906) 30 Bom 304 ; Kunhi
Avulla v. Kunhi Avulla ,
AIR 1964 Ker 200 [
LNIND 1963 KER 246 ] (DB); Abdul Kafoor v. Abdul Razak ,
AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ]:
(1958) 2 MLJ 492 [
91 Abdul Kafoor v. Abdul Razack ,

AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (DB) :
(1958) 2 MLJ 492 [

AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (DB) :
(1958) 2 MLJ 492 [
LNIND 1958 MAD 44 ] ; Sulaiman Sahib v. Ibrahim Meeral Beevi ,
AIR 1953 Mad 161 [
LNIND 1952 MAD 220 ]:
(1952) 2 MLJ 104 : 65 LW 496; Shehammal v. Hassan Khani Rawther, AIR 2011
SC 3609 (3614) :
(2011) 9 SCC 323 :
2011 (8) SCALE 186 [
LNIND 2011 SC 712 ]).
93 Kunhi Avulla v. Kunhi Avulla ,

AIR 1964 Ker 200 [
LNIND 1963 KER 246 ] (DB); Abdul Kafoor v. Abdul Razak ,
AIR 1959 Mad 131 [
(1958) 2 MLJ 492 [
94 Hameed v. Jameela,
AIR 2010 Ker 44 [
LNIND 2009 KER 796 ] (47) :
2009 (4) KLT 531 [
LNIND 2009 KER 796 ] :
ILR 2009 (4) KLT 611 .
95 Shehammal v. Hassan Khani Rawther, AIR 2011

SC 3609 (3616) : (2011) 8 SCALE 186 :
(2011) 9 SCC 323 .
1 Thakar Singh v. Uttam Kaur , (1929) 10 Lah 613,

AIR 1929 Lah 295 .
Page 46 of 69
S. 6 (A).
2 Mahadeo Prasad v. Mathura Chaudhari ,

AIR 1931 All 589 .
3 Mathews v. Usher,
(1900) 2 QB 535 .
4 Visheshwar v. Mahableshwar , (1919) 43 Bom 28 ; Vaguran v. Rangayyangar , (1892) 15

Mad 125.
5 Kristo Nath v. Brown ,

(1887) 14 Cal 176 .
6 Smith v. Packhurst , (1741) 3 Atk 135 : 26 ER 881.
7 Hyde v. Warden,
(1877) 47 LJQB 121 .
8 Hyde v. Warden,
(1877) 47 LJQB 121 ; West v. Dobb,
(1870) 39 LJQB 190 ; Evans v. Davis , (1878) 10 Ch. D. 747.
9 Times v. Baker,
(1883) 49 LT 106 .
10
(1904) 1 KB 698 .
11 Moore v. Ullcoats Mining Co. Ltd. , (1908) 1 Ch. 575; Jones v. Carter , (1846) 15 M&W
718 : 153 ER 1040; Fenn v. Smart , (1810) 12 East 444.
12 Ware v. Booth,
(1894) 10 TLR 446 .
13 Jones v. Carter , (1846) 15 M&W 718 : 153 ER 1040; Abraham, S.S. Co. v. Westville
Shipping Co.,
(1923) AC 773 .
14 Hyde v. Warden,
(1877) 47 LJQB 121 .
15 Roberts v. Holland,
(1893) 1 QB 665 .
16 See Section 4, the Easements Act, V of 1882; Mormsey v. Ismay , (1865) 34 LJ Ex. 52 : 159 ER 621; A.-
G. v. Copeland,
(1901) 2 KB 101 .
Page 47 of 69
S. 6 (A).
17 Section 19, the Easements Act, V of 1882; Ackroyd v. Smith,

(1850) 10 CB 164 : 138 ER 68.
18 Sital Chandra v. Delanney ,

(1916) 20 CWN 1158 ; Bhagwan Sahai v. Narsingh ,
(1909) 31 All 612 ; Kondayya v. Veeranna ,
AIR 1926 Mad 543 ; Satyanarayana v. Lakshmayya ,
AIR 1929 Mad 79 ; Krishna v. Rayappa , (1868) 4 MHCR 98.
19 Sundrabai v. Jayawant , (1899) 23 Bom 397.
20 Chundee Churn v. Shib Chunder ,

(1880) 5 Cal 945 .
21 Brij Mohan v. Bhikhuji ,

AIR 1931 All 207 .
22 Chama Narasimha Reddy v. Joint Collector, Ranga Reddy District at Hyderabad ,

2007 (3) Andh LT 265 (276) (AP).
23 Shib Lal Singh v. Moorad Khan , (1868) 9 Suth WR 126.
24 Joykishen Mookerjee v. The Collector of Burdwan , (1855) 10 MIA 16 ; Joykishen

Mookerjee v. The Collector of Burdwan , (1864) 10 MIA 16.
25 Rajah Lelanund v. The Government of Bengal , (1855) 6 MIA 101.
26 Hurlal Singh v. Jorawun Singh , (1837) 6 SDA 169 ; Lelanund Singh v. Government of
Bengal , (1855) 6 MIA 101 ; Nilmoni Singh v. Bakranath Singh ,
(1882) 9 IA 104 ; Leelanund Singh v. Munooranjan Singh , (1873) IA Supp. 181.
27 Narayan Singh v. Niranjan Chakravarti , (1924) 3 Pat 183 : 51 IA 37.
28 Nilmoni Singh v. Bakranath Singh ,

(1883) 9 Cal 187 : 9 IA 104; Joykishen Mookerjee v. Collector of East Burdwan ,
(1864) 10 MIA 16.
29
(1867) 7 WR 178 .
30
(1883) 9 Cal 187 .
31 Rajah Nilmoney v. Bakranath Singh ,

(1868) 10 WR 255 .
Page 48 of 69
S. 6 (A).
32 Narain Mullick v. Badi Roy ,

(1902) 29 Cal 227 .
33 Naresh Chand v. Paresh Chandra ,

AIR 1959 Ass 61 (63) (DB).
34 Sriman Prabahan v. Madhuri ,

AIR 1985 Cal 368 [
LNIND 1985 CAL 106 ] (378) (DB).
35 Krishnayya v. Raghavulu ,
AIR 1958 AP 658 (660) (DB) :
(1956) AP 510 .
36 Inderjeet v. State of H.P., 1995

AIHC 1003 (1025) (HP-DB).
37 Abhiram Sabat v. Shyam Sunder Sabat ,

AIR 1964 Ori 59 (DB).
38 Udoy Kumari v. Hari Ram ,

(1901) 28 Cal 483 ; Haridas Acharjia v. Baroda Kishore ,
(1899) 27 Cal 38 .
39 Rajkeshwar Deo v. Bunshidhur ,

(1896) 23 Cal 873 ; Kustoora Kumari v. Benoderam Sen , 4 WR Misc. Rul. 5.
40 Ram Kumar v. Ram Newaj ,

(1904) 31 Cal 1021 .
41 Narayan v. Kalgaunda , (1890) 14 Bom 404 ; Jagjivandas v. Imdad Ali , (1882) 6 Bom
211.
42 Radhabai v. Anantrav , (1885) 9 Bom 198.
43 Keval Kuber v. The Talukdari Settlement Officer , (1877) 1 Bom 586 ; Rajah Leelanund v.
Thakur Munrunjun , IA Sup. Vol. 181.
44 Rany Padamavati v. Baboo Doolar Singh , (1847) 4 MIA 259 ; Rany Srimuty Dibeah v.
Rany Koond Luta , (1847) 4 M.IA 292; Chundro Sheekhur Roy v. Nobin Soondur Roy , (1865) 2 CWR 197.
45 Muktabai v. Antaji , (1899) 23 Bom 715.
46 Narsinh v. Vaman , (1910) 34 Bom 91.
47 Ravji v. Sakuji , (1910) 34 Bom 321.

Page 49 of 69
S. 6 (A).
48 Appayasami Naicker v. Midnapore Zamindari Co. Ltd ., (1921) 44 Mad 575 : 48 IA 100.
49 Anjaneyalu v. Sri Venugopala , (1922) 45 Mad 620.
50 Venkatarayadu v. Venkataramayya , (1892) 15 Mad 284 ; Papaya v. Ramana , (1884) 7

Mad 85.
51 Chandramma v. Venkataraju , (1887) 10 Mad 226.
52 Bansidhar v. Ashutosh , (1925) 4 Pat 272 ; Appayasami Naicker v. Midnapore Zamindari

Co., Ltd. , (1921) 44 Mad 575 : 48 IA 100.
53 Canbank Financial Services Ltd. v. Custodian , AIR

2004 SC 5123 :
(2004) 8 SCC 355 [
LNIND 2004 SC 892 ].
54 Ramgopal v. Satyanarayan ,
AIR 1978 Bom 14 [
LNIND 1976 BOM 248 ] (18) : 1977 Mh LJ 474 : (1978) 1 Ren CR 293.
55 Lakhamgounda v. Baswantrao ,
(1931) 33 Bom LR 974 ; Forbes v. Meer Mahomed Tuquee , (1870) 13 MIA 438.
56 Nagendra Nath v. Rabindra Nath ,

(1926) 53 Cal 132 .
57 Surendro v. Doorga ,
(1892) 19 Cal 513 : 19 IA 108.
58 Kokilasari v. Mohunt Rudranand, (1874) 5 CLJ 527.
59 Nitya Gopal v. Nani Lal ,

(1920) 47 Cal 990 .
60 Nitya Gopal v. Nani Lal ,

(1920) 47 Cal 990 .
61 Panchanan v. Surendra Nath ,

AIR 1930 Cal 180 .
62 Rajah Vurmah v. Ravi Vurmah , (1876) 1 Mad 235 : 4 IA 76.
63 Rajah Vurmah v. Ravi Vurmah , (1876) 1 Mad 235 : 4 IA 76.

Page 50 of 69
S. 6 (A).
64 Mahamaya v. Haridas ,
(1915) 42 Cal 455 ; Jagdeo Singh v. Rama Saran ,
AIR 1927 Pat 7 ; Jati Kar v. Mokunda ,
(1912) 39 Cal 227 ; Eshan Chunder Roy v. Monmohini Dasi ,
(1878) 4 Cal 683 .
(1915) 42 Cal 455 ; Jagdeo Singh v. Rama Saran ,
AIR 1927 Pat 7 .
66 Puncha Thakur v. Bideswari ,

(1916) 43 Cal 28 .
67 Waman v. Balaji , (1890) 14 Bom 167.
68 Durga Prasad v. Shambhu ,

(1919) 41 All 656 .
69 Ganesh v. Shankar , (1886) 10 Bom 395.
70 Manjunath v. Shankar , (1915) 39 Bom 26 ; Rajaram v. Ganesh , (1898) 23 Bom 131.
71 Govind v. Ramakrishna , (1888) 12 Bom 366 ; Ganesh v. Shankar , (1886) 10 Bom 395.
72 Parayad Das v. Mohunth Kriparam, (1908) 8 CLJ 499.
73 Narasimma v. Anantha , (1882) 4 Mad 391.
74 Kuppa v. Dorasami , (1883) 6 Mad 76.
75 Juggarnath v. Pershad Surmah , (1867) 7 W.R. 266.
76 Kanni v. Achuda , (1868) 3 MHCR 380.
77 Venkatarayar v. Srinivasa , (1874) 7 MHCR 32.
78 Rajah of Cherakal v. Mootha Rajah, (1874) 7 MHCR 210.
79 Konwar Doorganath Roy v. Rau Chunder Sen ,

(1875) 2 Cal 347 : 4 IA 58.
80 Mohammed Shabbar v. Harnath Kuar ,

AIR 1927 Oudh 436 .
Page 51 of 69
S. 6 (A).
81 Subbarayudu v. Kotayya , (1892) 15 Mad 389.
82 Rama Varma v. Raman Nayar , (1882) 5 Mad 89.
83 Gnanasambanda v. Velu Pandaram , (1890) 23 Mad 271 : 27 IA 69.
84 Muncharan v. Pranshankar , (1882) 6 Bom 298 ; Dubo Misser v. Srinivas , (1869) 5 Beng
LR 617.
85 Durga Bibi v. Chanchal Ram ,

(1882) 4 All 81 .
86 Seshaiya v. Gauramma ,
(1869) 4 MHC 336 .
87 Haji Ali v. Anjuman-i-Islamia ,

AIR 1931 Lah 379 ; Wahid Ali v. Ashruff Hossain ,
(1882) 8 Cal 732 .
88 Sarkum v. Rahaman ,
(1897) 24 Cal 83 .
89 Deviprasad v. Syed Waziruddin , (1935) Nag LR 217.
90 Dhandu v. Girdharilal ,
AIR 1961 All 518 [
LNIND 1960 ALL 172 ]: 1961 All LJ 565 ; Budha v. Balwanta ,
AIR 1958 All 699 [
LNIND 1957 ALL 261 ]; P. Raghudu v. N. Erraiya ,
AIR 1938 Mad 881 [
LNIND 1938 MAD 325 ]; Radhya v. Kamraya ,
AIR 1951 MB 120 ; Durga Prasad v. Shambhu ,
AIR 1919 All 208 : (1919) 41 All 656.
91 Trimbak v. Lakshman , (1895) 20 Bom 495 ; Mitta Kunth v. Neeranjan , (1874) 14 Beng
LR 166; Sethuramaswamiar v. Merswamiar , (1909) 34 Mad 470 ; Damodardas v. Uttamram , (1892) 17 Bom 271 ;
Nagia v. Muthacharry,
(1900) 11 MLJ 215 , 222; Limba v. Rama , (1888) 13 Bom 548 ; Raman v. Gopal ,
(1897) 19 All 428 ; Rajeshwar v. Gopeshwar ,
(1907) 34 Cal 828 ; Anund v. Boykantnath ,
(1867) 8 WR 193 ; Ram v. Taruck ,
(1872) 19 WR 28 ; Debendro v. Odit ,
(1878) 3 Cal 390 ; Eshan Chunder v. Monmohini ,
(1878) 4 Cal 683 ; Goopee v. Thakoordas ,
(1882) 8 Cal 807 .
(1915) 42 Cal 455 ; Jagedeo Singh v. Ram Saran ,
AIR 1927 Pat 7 .
Page 52 of 69
S. 6 (A).
(1915) 42 Cal 455 ; Jagdeo Singh v. Ram Saran ,
AIR 1927 Pat 7 .
3 Uthandi v. Ragavachari , (1906) 29 Mad 307.
4 Gulab Kuar v. Bansidhar ,

(1893) 15 All 371 .
5 Diwali v. Apaji Ganesh , (1886) 10 Bom 342.
6 Salamat Hossein v. Luckhi Ram ,

(1884) 10 Cal 521 .
7 Nathu Gangaram v. Hunsraj Morarji ,

(1907) 9 Bom LR 114 [
LNIND 1906 BOM 143 ]; Jaffer Meher Ali v. Budge Budge Jute Mills Co. ,
(1906) 33 Cal 702 ; Namasivaya v. Kadir Ammal , (1894) 17 Mad 168 ; Farrow v.
Wilson , (1869) 4 C.P. 744; Humble v. Hunter, (1848) 12 QBRP 310.
8 Jaffer Meher Ali v. Budge Budge Jute Mills Co .,

(1907) 34 Cal 289 .
9 Toomey v. Rama ,
(1890) 17 Cal 115 .
10 Shiwaji v. Ratiram ,
AIR 1926 Nag 171 .
11 Collector Singh v. Madari Lal ,

AIR 1925 Oudh 132 .
12 Mirza Sadiq Husain v. Mahomed Karim ,

AIR 1922 Oudh 289 .
13 Jasudin v. Sakharam , (1912) 36 Bom 139.
14 Ram Sahai v. Gaya ,

(1885) 7 All 107 .
15 Rajjo v. Lalman ,
(1883) 5 All 180 .
16 Rajjo v. Lalman ,
(1883) 5 All 180 .
Page 53 of 69
S. 6 (A).
17 Zamir Husain v. Daulat Ram ,

(1883) 5 All 110 .
18 Jadu Lal v. Janki Koer ,

(1908) 35 Cal 575 ; Fakeer Rawot v. Sheikh Emambuksh , (1863) W.R. (FB) 143.

(1908) 35 Cal 575 .

(1908) 35 Cal 575 .
21 Talib Ali v. Kaniz Fatima Begam ,

AIR 1927 Oudh 204 .
22 Rajjo v. Lajja ,
AIR 1928 All 204 .
23 Samar Bahadur v. Jit Lal ,

AIR 1924 All 390 .
24 Mutsaddi Lal v. Bhola Nath ,

AIR 1925 Lah 55 .
25 Bhairo Tewari v. Ramnath Rai ,

AIR 1924 All 60 .
26 Zulfar Khan v. Sant Baksh Singh ,

AIR 1922 Oudh 81 .
27 Nihala Ram v. Pannum Ram ,

AIR 1927 Lah 147 .
28 Sheo Baran Singh v. Kulsum-un-nissa ,

(1927) 49 All 367 : 54 IA 204.
29 Brij Narain v. Kedar Nath ,

(1923) 45 All 186 .
30 Bela Bibi v. Akbar Ali ,

(1902) 24 All 119 .

(1908) 35 Cal 575 .
32 Jobair Ahmed v. Jai Nandan Prasad Singh ,

AIR 1960 Pat 147 (DB) : ILR 39 Pat 1 (
Page 54 of 69
S. 6 (A).
AIR 1944 Pat 163 : AIR 1944 174 relied on ;

AIR 1923 Pat 72 :
AIR 1923 Pat 33 held no longer good law in view of AIR
1925 PC 63 ).
33 K. Balakrishnan v. K. Kamalam , AIR 2004

SC 1257 (1260) :
(2004) 1 SCC 581 .
34 Laxmivenkayamma v. Suryarao Bahadur ,

AIR 1957 AP 215 [
LNIND 1955 AP 109 ] (220) (DB) : 1956 Andh WR 37 :
1956 Andh LT 72 [
LNIND 1955 AP 109 ] :
ILR 1955 AP 370 .
35 Laxmivenkayamma v. Suryarao Bahadur ,

AIR 1957 AP 215 [
1956 Andh LT 72 [
LNIND 1955 AP 109 ] :
ILR 1955 AP 370 ; Nageshwar Prasad Singh v. Chhotey Lal ,
AIR 1944 All 91 ; Ashfaq Mahomed Khan v. Mt. Nazir Babu ,
AIR 1942 Oudh 410 : (1942) OWN 359 ; Anuruddha Mitra v. Official Receiver ,
AIR 1942 Cal 241 : (1942) 1 Cal 427 : 201 IC 568.
36 See commentaries on Section 39 of the Act.
37 Asad Ali v. Haidar Ali ,

(1911) 38 Cal 13 .
38 Narbadabai v. Mahadeo , (1881) 5 Bom 99.
39 Thimmanayanim v. Venkatappa ,
AIR 1928 Mad 713 [
LNIND 1927 MAD 210 ]; Ranee Annapurni v. Swaminatha , (1911) 34 Mad 7 ; See
also Dhanapala v. Krishna Chettiar ,
AIR 1955 Mad 165 [
LNIND 1954 MAD 163 ] (DB) :
ILR 1955 Mad 1122 :
(1955) 1 MLJ 72 ; Chittory Venkataraj v. Themma Sathraju ,
AIR 1954 Mad 946 [
(1954) 2 MLJ 324 :
1954 MWN 451 . (Right to future maintenance—When attachable?).
40 Subraya v. Krishna , (1923) 46 Mad 659.
41 Dhup Nath v. Ram Charitra ,

(1932) 54 All 366 .
42 Rajah of Ramnad v. Subramaniam , (1929) 52 Mad 465 (494).

Page 55 of 69
S. 6 (A).
43 Vaidyanatha v. Eggia , (1907) 30 Mad 279.
44 Subraya v. Krishna , (1923) 46 Mad 659.
45 Palikandy v. Krishnan Nair , (1917) 40 Mad 302 ; Kuppayee v. Guruswami ,

AIR 1975 Mad 267 [
LNIND 1974 MAD 309 ] (270); Asad Ali v. Haidar Ali ,
(1911) 38 Cal 13 ; Nanammal v. The Collector of Trichinopoly,
(1910) 20 MLJ 97 [
LNIND 1909 MAD 173 ] ; Tara Sundari v. Saroda Charan, (1910) 12 CLJ 146 ;
Haridas v. Baroda ,
(1900) 27 Cal 38 ; Basangowda v. Irgowdatti , (1923) 47 Bom 597.
46 Gopal Lal v. Marsden ,

(1905) 10 CWN 1102 .
47 Basangowda v. Irgowdatti , (1923) 47 Bom 597.
48 Bal Krishna v. Paij Singh ,

(1930) 52 All 705 .
49 Annu v. Shripati ,
(1930) 32 Bom LR 705 .
50 In re. Robinson , (1884) 27 Ch. D. 150.
51 Ram Chandra v. Mudeshwar ,

(1906) 33 Cal 1158 ; Rameshwar v. Jibender ,
(1905) 32 Cal 683 .
52 Altaf Begam v., (1910) 12 CLJ 146.
53 Mathura Das v. Bhagwan Das, 1944 MLR 63 (Civ.).
54 Ansul 655 (Del).
55 Shankarappa v. Khatumbi , (1932) 56 Bom 403.
56 Gopala Iyer v. Ramaswami,

(1911) 21 MLJ 153 [
LNIND 1909 MAD 282 ] and
(1912) 22 MLJ 207 [
LNIND 1911 MAD 126 ].
57 McDowell v. S.C. Chunder ,

(1909) ILR 36 Cal 345) : 1 IC 827.
Page 56 of 69
S. 6 (A).
58 Ram Das v. Har Narain , 1943 ALW 302.
59 Radhagovinda Rai v. Kha Dharmaband Colliery Co. Ltd .,

AIR 1963 Pat 160 (DB).
60 Radhagovinda Rai v. Kha Dharmaband Colliery Co. Ltd .,

AIR 1963 Pat 160 (163, 164) (DB).
61 Gangaraju v. Gopala ,
AIR 1957 AP 190 (FB) :
(1957) AP 215 (
AIR 1921 Mad 56 [
LNIND 1920 MAD 129 ], follow ;
AIR 1916 Mad 473 (i) overruled ).
62 Murlidhar v. Rupendra ,
AIR 1953 Cal 321 [
LNIND 1951 CAL 162 ]: 56 CWN 260; Chiranjilal Sushil Kumar v. Ramchandar
Kanahaiyalal ,
2007 (1) Cal LJ 175 [
LNIND 2006 CAL 640 ] (185) (Cal).
63 Sambhunath Mitra v. Khaitan Consultant Ltd. ,

AIR 2005 Cal 281 [
LNIND 2005 CAL 215 ] (290) : (2005) 2 Cal HN 72 (DB).
64 Uchab v. Brundaban ,
AIR 1969 Ori 142 [
LNIND 1968 ORI 102 ] (143); Jagannath Marwari v. Kalidas Raha ,
AIR 1929 Pat 245 ; Manmatha Nath Dutta v. Matilal Mitra ,
AIR 1929 Cal 719 ; Murlidhar Agarwal v. Rupendra Nath Mitter ,
AIR 1959 Cal 352 [
LNIND 1959 CAL 33 ]; New Central Jute Mills Co. Ltd. v. Rivers Steam Navigation
Co. Ltd .,
AIR 1953 Cal 352 [
LNIND 1951 CAL 153 ].
65 Uchhav Atra v. Brindaban Mallik ,

AIR 1969 Ori 142 [
LNIND 1968 ORI 102 ]: 35 Cut LT 86.
66 N.C. June Mills v. R.S. Nanagbaon ,

AIR 1959 Cal 352 [
LNIND 1959 CAL 33 ] (353) (DB) :
(1959) 29 Com Cas 357 .
67 N.C. June Mills v . R.S. Nanagbaon ,

AIR 1959 Cal 352 [
LNIND 1959 CAL 33 ] (353) (DB) :
(1959) 29 Com Cas 357 .
Page 57 of 69
S. 6 (A).
68 M. Bhargavi v. A. Kochan ,
AIR 1959 Ker 163 [
LNIND 1958 KER 82 ] (165) (DB).
69 Kahan Singh v. Mast Ram, 2011 AIR CC 2020 (2025) (H.P.).
70 Beni Madho v. A.V. John ,

AIR 1947 All 110 : 1947 All LJ 283.
71 McDowell and Co. Ltd. v. District Registrar,

AIR 2000 AP 374 [
LNIND 2000 AP 210 ] (378) (SB) : 2000 AIH C 3540.
72 McDowell and Co. Ltd. v. District Registrar ,

AIR 2000 AP 374 [
LNIND 2000 AP 210 ] (378) (SB) :
2000 CLC 1498 .
73 U.P. Avas Evam Vikas Parishad v. Kanak , 1999

AIHC 1555 (1565) : 1999 All LJ 153 (All-DB).
74 Suhara v. Abdul Shukkur ,

1997 AIHC 1083 (1086, 1087) (Ker-DB).
75 Nazir Hasan v. Matin-uz-zaman ,

AIR 1925 Oudh 299 .
76 Chockalingam Chetty v. Seethai Ache ,

(1927) 32 CWN 281 PC.
77 Lachumi Narayan v. Dharam Chand ,

AIR 1926 Nag 396 ; The Joint and United Hindu Family v. Chettiyar , AIR 1927
Rang 39 ; Khetra Mohan Das v. Biswa Nath ,
(1924) 51 Cal 972 ; Kalusa v. Madhorao,
AIR 1926 Nag 357 .
78 Ramaseshiah v. Ramiah ,
AIR 1926 Mad 417 ; Rajeshwar v. Sheikh Yadali ,
AIR 1933 Cal 461 .
79 Khetra Mohan Das v. Biswa Nath ,

(1924) 51 Cal 972 ; Ramaseshiah v. Ramiah ,
AIR 1926 Mad 417 .
80 Susai Lazar v. Ramaswami ,

AIR 1933 Mad 710 [
LNIND 1933 MAD 144 ].
Page 58 of 69
S. 6 (A).
81 Ghisulal v. Gambhirmall ,
(1935) 39 CWN 606 .
82 Union of India v. Sri Sarada Mills Ltd. , AIR

1973 SC 281 :
(1972) 2 SCC 877 [
LNIND 1972 SC 469 ].
83 Madho Das v. Ramji Patak ,

(1894) 16 All 286 .
84 Baijnath v. Parmeshwar Dayal ,

AIR 1934 Oudh 240 .
85 Indar v. Raghubir ,
AIR 1930 Oudh 88 .
86 Union of India v. Ram Iron Foundary , AIR 1974

SC 1265 (1273) :
(1974) 2 SCC 331 ; Pyare Lal v. Meen Mal-Bal ,
AIR 1927 All 621 .
87 Nakhela v. Kokaya ,
AIR 1923 Nag 67 .
88 Goundasawmi v. Ramasawmi,
(1916) 30 MLJ 492 [
LNIND 1916 MAD 106 ].
1 Altof Begam v. Brij Narain ,

(1929) 51 All 612 .
2 Bhupati Bhusan Dey v. Hafijuddin Ahmed ,

AIR 1984 NOC 63 (Gauh).
3 Akhtar Beg v. Haq Nawaz ,

AIR 1924 Lah 709 .
4 Sakalaguna v. Chinna Munuswami , (1928) 51 Mad 533 : 55 IA 43; Rajah Bahadur

Narsingerji v. Rajah Panuganti ,
AIR 1921 Mad 498 ; Andalammal v. Alamelu Ammal ,
AIR 1962 Mad 378 [
LNIND 1961 MAD 129 ].
5 Vishindas v. Thaweredas , AIR 1925 Sind 18.
6 Yadavendra v. Srinivasa , (1924) 47 Mad 698.

Page 59 of 69
S. 6 (A).
7 Ma Yait v. Mahomed Ebrahim , AIR 1927 Rang 165.
8 Ramaswamy Iyer v. Deivasigamani ,

AIR 1922 Mad 397 [
9 Hindustan Corporation (Hyderabad) Pvt. Ltd. v. United India Fire Gen. Insu. Co. Ltd .,
AIR 1997 AP 347 [
LNIND 1996 AP 422 ] (352) (DB) :
ILR 1943 Nag 643 : 209 IC 25.
10 Bhabootmal v. Mool Chand,

AIR 1943 Nag 266 (268); Sakalaguna Nayudu v. Chinna Munuswami Nayakar, AIR
1928 PC 174 : 109 IC 765 : (1928) 51 Mad 533 ; Prabir Kumar Daxs v. Amulya
Bhushan Paul ,
AIR 2005 Gauhati 128 (137) : (2003) 3 Gau LT 364 (DB).
11 Prabir Kumar Das v. Amulya Bhushan Paul ,

AIR 2005 Gau 128 [
LNIND 2005 GAU 21 ] (137) : (2005) 3 Gau LT 364 (DB).
12 Andalammal v. Alamelu Ammal ,

AIR 1962 Mad 378 [
LNIND 1961 MAD 129 ].
13 Subh Ram v. Ram Kishan ,

AIR 1943 Lah 265 : 45 PLR 284 : 210 IC 262.
14 Zaharia Mal v. Parmeshri Das,

AIR 1942 Lah 284 : 44 PLR 403 : 203 IC 348.

AIR 2011 Ker 166 [
LNIND 2011 KER 648 ] (175) (DB).
16 Veeyayya Pillai v. K Ramanatha,

AIR 1977 Mad 263 [
LNIND 1976 MAD 243 ] (266) : (1977) 1 Mad LJ 513.
17 Palianppa v. Nallappa ,
AIR 1951 Mad 816 [
LNIND 1950 MAD 224 ] (821) :
(1951) 1 MLJ 265 [
18 Sheikh Muhammed Maracair v. Bathummal Beerl ,

AIR 1948 Mad 458 [
LNIND 1947 MAD 222 ]:
(1948) 1 MLJ 298 [
LNIND 1947 MAD 222 ].
Page 60 of 69
S. 6 (A).
19 Thermofriz Insulations Pvt. Ltd. v. Vijaya Udyog ,

AIR 1981 Del 385 [
LNIND 1981 DEL 15 ] (389).
20 Thermofriz Insulations Pvt. Ltd. v. Vijaya Udyog ,

AIR 1981 Del 385 [
LNIND 1981 DEL 15 ] (389).
21 Bal Krishna v. Paij Singh ,

AIR 1930 All 593 .
22 Durga Chunder Roy v. Koilas Chunder ,

(1897) 2 CWN 43 .
23 Jai Narayan v. Kishun Dutta ,

AIR 1924 Pat 551 ; Secretary of State v. Saroj Kumar ,
(1934) 39 CWN 405 P.C.
24 Dickinson v. Burrell , (1866) 35 LJ Ch. 371; Prosser v. Edmonds , (1835) 1 Y. & C. Ex.
481 : 160 ER 196.
25 Shankarappa v. Khatumbi , (1932) 56 Bom 403.
26 Monmatha v. Matilal ,
(1928) 33 CWN 614 .
27 Ganga Din v. Piyare ,

AIR 1929 All 63 .
28 Jagannath v. Kalidas ,
AIR 1925 Pat 245 ; Jai Narayan v. Kishun Dutta ,
AIR 1924 Pat 551 .
29 Deorao v. Sadasheo , (1906) 2 Nag LR 17.
30 Venkatarama v. Ramasami ,
AIR 1921 Mad 526 : (1920) 44 Mad 539.
31 Chandrasekaralingam v. Nagabhushan ,
AIR 1927 Mad 817 .
32 Ellis v. Torrington,
(1920) 1 KB 399 ; Glegg v. Bromley,
(1912) 3 KB 474 ; Dawson v. Great North Eastern Railway,
(1905) 1 KB 260 ; Dickinson v. Burrell ,
(1866) LR 1 Eq. 337.
Page 61 of 69
S. 6 (A).
33 Shyam Chand v. Land Mortgage Bank of India ,

(1883) 9 Cal 695 .
34 Pragi Lal v. Fateh Chand ,

(1882) 5 All 207 .
35 Varahaswami v. Ramchandra Raju , (1915) 38 Mad 138.
36 Seetamma v. Venkataramanayya , (1915) 38 Mad 308 ; Varahaswami v. Ramchandra,

(1913) MLJ 298 .
37 Venkatarama v. Ramasami , (1921) 44 Mad 539 ; Prasanno v. Ashutosh Ray ,

(1913) 18 CWN 450 ; Hari Parasad v. Kodo Marya ,
(1916) 1 Pat LJ 427 ; Ramiah v. Rukmani,
(1913) 24 MLJ 313 [
LNIND 1912 MAD 530 ].
38 Khadiram v. Shomnath ,
AIR 1933 Cal 454 .
39 K.B. (Chemists) Pvt. Ltd. v. Union Territory of Chandigarh , AIR 2006 P&H 100 (101,
102) : 2006 AIHC (NOC) 242 (DB).
40 Agra Development Authority v. State of U.P. , 2004

AIHC 3234 (3236) (All-DB).
41 Jaffer Meher Ali v. Budge-Budge Jute Mills ,Co.

(1906) 33 Cal 702 and
(1907) 34 Cal 289 ; Nathu v. Hansraj ,
(1907) 9 Bom LR 114 [
LNIND 1906 BOM 143 ]; Moti Lal v. Radhey Lal ,
AIR 1933 All 642 ; Punjaram v. Harisao ,
AIR 1934 Nag 268 .
42 Hirachand v. Nemchand , (1923) 47 Bom 719 ; Ratansi v. Kuwarji ,

AIR 1930 Nag 22 .
43 Abu Mahomed v. S.C. Chunder ,

(1909) 36 Cal 345 .
44 Jewan Ram v. Ratan Chand ,

(1921) 26 CWN 285 ; Mathra Das v. Bhagwan Das, 1944 MLR 63 (Civ).
45 Varahaswami v. Ramchandra Raju , (1915) 38 Mad 138.
46 Varahaswami v. Ramchandra Raju , (1915) 38 Mad 138 ; Dawson v. Great Northern City
Railway,
(1905) 1 KB 260 ; Defries v. Milne , (1913) 1 Ch. 98.
Page 62 of 69
S. 6 (A).
47 Doraiswamy v. Thangavelu ,
AIR 1929 Mad 251 [
LNIND 1928 MAD 334 ].
48 Gangaraju v. Gopala ,
AIR 1957 AP 190 (FB) :
(1957) AP 215 (
AIR 1921 Mad 56 [
LNIND 1920 MAD 129 ], follow ;
AIR 1916 Mad 473 (i) overruled ).
49 Gujarat Water Supply and Sewerage Board v. S.H. Shivamani ,

AIR 1991 Guj 170 [
LNIND 1990 GUJ 202 ] (173) (DB).
50 Nagappa v. Badridas ,
(1930) 32 Bom LR 894 ; Forysthe Trading Services Ltd. v. M.V. Nizuru ,
2004 (5) Bom CR 806 (816) (Bom) (Actionable claim can be assigned).
51 Jagannath v. Kalidas , (1929) Pat 245.
52 Ramaswami v. Abdul Kaddus ,

AIR 1926 Mad 978 [
LNIND 1926 MAD 138 ].
53 Shrinath v. Kanhaiyalal ,
AIR 1924 Nag 145 ; Thawerdas v. Vishandas , AIR 1925 Sind 72.
54 Dhanaji v. Gulabchand ,
(1925) 27 Bom LR 409 .
55 Juggut Chunder v. Rada Nath ,

(1884) 10 Cal 669 .
56 Ramiah v. Rukmani,
(1913) 24 MLJ 313 [
LNIND 1912 MAD 530 ].
57 Kowtah v. Yarudala Venkayya ,

AIR 1923 Mad 177 ; Ram Charan v. Nazeeran ,
AIR 1935 All 342 .
58 Govindasawmi v. Ramasawmi,
(1916) 30 MLJ 492 [
LNIND 1916 MAD 106 ] ; Rama Pattar v. Raman Kutty,
(1923) 44 MLJ 236 .
59 Forysthe Trading Services Ltd. v. M.V. Nizuru ,

2004 (5) Bom CR 806 (816) (Bom).
Page 63 of 69
S. 6 (A).
60 Manmatha Nath v. Hedait Ali ,

(1932) 34 Bom LR 489 : 59 IA 41.
61 Mathu v. Achu , (1934) 57 Mad 1074 ; O’Driscoll v. Manchester Insurance Committee,

(1915) 3 KB 499 .
62 Frenchu v. James ,
(2005) 3 Ker LT 4 (4) (SN) (Ker).
63 Ghisulal v. Gabhirmall ,
(1935) 39 CWN 606 .
64 Amirtham Kudumbah v. Sarnam Kudumban

, AIR
1991 SC 1256 (1259, 1260) :
(1991) 3 SCC 20 [
LNIND 1991 SC 214 ] ; The J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State
of Uttar Pradesh , AIR 1961
SC 1170 (1174) : 1961 (3) SLR 185 and Ashoka Marketing Ltd. v. Punjab National
Bank , AIR
1919 SC 855 :
(1990) 4 SCC 406 :
JT 1990 (3) SC 417 , 439.

AIR 2011 Ker 166 [
LNIND 2011 KER 648 ] (175) (DB).
66 Re. Mirams,
(1891) 1 QB 594 .
67 Sterry v. Clifton, (1850) 19 LJCP 237.
68 Seshacharyulu v. Venkatacharyulu ,
AIR 1957 AP 876 [
LNIND 1956 AP 108 ] (877) (DB); Hanmappa v. Hanmantgand ,
AIR 1948 Bom 233 : ILR (1947) Bom 789.
69 Prasaddas v. K.S. Bonnerjee ,

(1930) 57 Cal 1127 ; Radharam v. Purna Chandra ,
(1930) 34 CWN 671 .
70 DeSilva v. Govind , (1920) 44 Bom 895.
71 Cecil Gray v. Cantonment Committee , (1910) 34 Bom 583.
72 Kering v. Murray , (1919) 42 Bom 716 ; Husain Baksh v. Briggin Shaw ,

(1933) 55 All 648 ; Hay v. Ram Chandar ,
(1917) 39 All 308 .
Page 64 of 69
S. 6 (A).
73 Watson v. Lloyd , (1901) 25 Mad 402 ; Calcutta Trades Association v. Ryland ,

(1896) 24 Cal 102 .
74 Arbuthnot v. Norton , (1846) 3 MIA 435 : 13 ER 474 PC.
75 B. Ananthayya v. B. Subba Rao ,

AIR 1960 Mad 188 [
LNIND 1959 MAD 103 ]) : (1960) Mad 87 :
(1960) 1 MLJ 164 [
LNIND 1959 MAD 103 ] (
AIR 1927 Mad 818 [
LNIND 1926 MAD 422 ] distinguished ).
76 State of Gujarat v. R.B. Chandrachud , AIR

1971 SC 846 (853) : 19969 (1) SCR 300; Secy. of State v. Khemchand Jeychand ,
(1880) ILR 4 Bom 432 (436).
77 The Secretary of State for India in Council v. Khemchand Jeychand , (1880) 4 Bom 432.
78 Subraya Mudali v. Velayuda Chetty , (1907) 30 Mad 153 ; Jiban Krishna v. Sripati Charan
Dey ,
(1904) 8 CWN 665 .
79 Crowe v. Price,
(1889) 22 QBD 429 .
80 Ravji Moreshwar v. Sayajirao Ganpatrao , (1889) 13 Bom 673.
81 Pugh v. Carttar,
(1851) 17 LTOS 107 .
82 Khasim v. Carlier , (1882) 5 Mad 272.
83 Lachmi Narain v. Makund Singh ,

(1904) 26 All 617 .
84 Amna Bibi v. Najman-Nissa ,

(1909) 31 All 382 .
85 Balvant Ramchandra v. The Secretary of State , (1905) 29 Bom 480.
86 Suraj Devi v. Sita Devi , AIR

1996 Raj 6 (9) : (1996) (2) Cur CC 409.
87 Duni Chand v. Gurmukh Singh ,

AIR 1930 Lah 816 .
Page 65 of 69
S. 6 (A).
88 Atma Ram v. Kehar Singh ,

AIR 1930 Lah 904 .
89 Bhoopal Rai v. Shiam Sunder ,

AIR 1929 All 781 .
90 Bishambar Nath v. Imdad Ali Khan ,

(1891) 18 Cal 216 : 17 IA 181.
91 Satraji Dongerchand Firm v. Madho Singh , (1927) 50 Mad 711 ; Muthusami Naidu v.
Prince Alagia , (1903) 26 Mad 423.
92 Valia Thamburatti v. Anujani Kunhunni , (1903) 26 Mad 69.
93 Duni Chand v. Gurmukh Singh ,

AIR 1930 Lah 816 .
94 Suraj Devi v. Sita Devi , AIR

1996 Raj 6 (9) : 1996 (2) Cur CC 409.
1 Anjaneyalu v. Sri Venugopala , (1922) 45 Mad 620.
2 Section 11, Regimental Debts Act (1893) 56 Vict. Ch. V.; also see Section 30 of the same Act.
3
Section 3, Provident Fund Act , XIX of 1925.
4 Section 8, Clause 2 (a), Married Women’s Property Act, III of 1874.
5 Jay Kant Harkishen Das Shah v. Durga Shanker Valjee Pandya ,

AIR 1970 Guj 106 [
LNIND 1968 GUJ 65 ]: (1969) 11 Guj LR 178 (The power of a guardian to take
property on lease in the name of the minor discussed in the light of earlier decision in
AIR 1943 Bom 187 and
AIR 1953 Bom 273 [
LNIND 1952 BOM 48 ]).
6 Suryanarayana v. V. Suryanarayana ,
AIR 1958 AP 286 (288) : (1957) 2 Andh WR 471.
7 WILLIAMS on Real Property , 24th Ed., p. 185.
8
(1888) 10 All 272 : 15 IA 51.
9 Sartag Kuari v. Deoraj Kuari ,

(1888) 10 All 272 : 15 IA 51.
Page 66 of 69
S. 6 (A).
10 Protap Chandra v. Jagadish Chandra ,

(1927) 54 Cal 955 : 54 IA 289; Venkata Surya v. Court of Wards, (1899) 22 Mad
383 : 26 IA 83.
11 Thirumalai v. Venkatachalam ,
AIR 1929 Mad 234 .
12 The Collector of Thana v. Hari Sitaram , (1882) 6 Bom 546 ; Narayan v. Chintaman ,
(1881) 5 Bom 393.
13 C.V. Kutumba Rao v. Govardhanam ,

AIR 1957 AP 349 (350) :
ILR 1957 AP 484 .
14 Jaffer Meher Ali v. Budge Budge Jute Mills Co.,

(1906) 33 Cal 702 .
15 Vilayat Husain v. Misran ,

(1923) 45 All 396 ; Raghupati v. Nrishingha ,
AIR 1923 Cal 90 ; Banka Behary v. Raj Kumar ,
(1900) 27 Cal 231 ; Goberdhan Singh v. Ritu Roy ,
(1896) 23 Cal 962 ; Govinda Kuar v. Lala Kishun ,
(1901) 28 Cal 370 ; Deivanayaga v. Muthu Reddi , (1921) 44 Mad 329.
16 Nutan Kumar v. IInd Addl. District Judge, Banda ,

AIR 1994 All 298 [
LNIND 1993 ALL 220 ] (313) (FB).
17 L.I.C. of India v. Devendrappa Bujjappa Katabi,

AIR 1987 Kant 129 [
LNIND 1986 KANT 196 ] (134) (DB); Eastern Mercantile Bank Ltd. v. N.T. Phillip ,
AIR 1960 Ker 194 [
LNIND 1959 KER 286 ]:
1959 Ker LJ 111 :
1959 Ker LT 1268 [
LNIND 1959 KER 286 ].
18 Mohan Chand v. Manindra Nath ,

AIR 1955 Cal 442 [
LNIND 1955 CAL 9 ] (447).
19 Pyare Mohan v. Narayani, AIR

1982 Raj 43 (48) :
1981 Raj LW 553 :
1981 WLN 616 .
20 Kamarbai v. Badrinarayan ,
AIR 1977 Bom 228 (236) (DB) : 78 Bom LR 579.
21 Lakshmi Amma v. Kunji Pillai , AIR 1954 Trav-Co. 348 (350, 351).
Page 67 of 69
S. 6 (A).
AIR 1977 Bom 228 (235, 236) (DB) :
1977 Mah LJ 115 .
AIR 1977 Bom 228 (240) (DB) : 78 Bom LR 579.
24
ILR (1940) All 371 :
AIR 1949 All 385 .
25 Nagaratnamba v. Kunuku Ramayya, AIR

1968 SC 253 (254, 255) :
(1968) 1 SCR 43 [
LNIND 1967 SC 207 ] ; Istak Kamu v. Ranchhod Zipru,
ILR (1947) Bom 206 (217) :
AIR 1947 Bom 198 (202).
26 Pranballav v. Tulsibala Dasi ,

AIR 1958 Cal 713 [
LNIND 1958 CAL 139 ] (730) (DB) :
(1958) CWN 258 .
27 L.I.C. of India v. Devendrappa Bvjjappa Kadaloi ,

AIR 1987 Kant 129 [
LNIND 1986 KANT 196 ] (137) (DB).
28 Munni Kunwar v. Madan Gopal ,

(1916) 38 All 62 ; Narain Das v. Musammat Dhania ,
(1916) 38 All 154 ; Ulfat Rai v. Gauri Shankar ,
(1911) 33 All 657 ; Thakar Das v. Putli ,
AIR 1924 Lah 611 ; Subba Reddy v. Guruva Reddy ,
AIR 1930 Mad 425 [
LNIND 1929 MAD 182 ]; Munia Konan v. Perumal Konan , (1914) 37 Mad 390.
29 Raghava v. Srinivasa , (1917) 40 Mad 308 ; Zafar Ahsan v. Zubaide Khatun ,

AIR 1929 All 604 ; Balwant Singh v. R. Claney ,
(1912) 38 All 296 : 39 IA 109.
30 Govinda Kurup v. Chowakkaran,

(1931) 59 MLJ 941 ; Indian Cotton Co. Ltd. v. Raghunath ,
(1931) 33 Bom LR 111 .
31 Maung Ye v. M.A.S. Firm , AIR 1928 Rang 136 : AIR 1928 Rang 3overruled.
32 U. Pyinnya v. Maung Law , AIR 1929 Rang 354.
33 Sebastian v. Mathai ,
(2005) 4 Ker LT 791 (800) (Ker-DB).
Page 68 of 69
S. 6 (A).
34 Moti Chand v. Ikram-Ullah Kahn ,

(1917) 39 All 173 : 44 IA 54.
35 Dayamayi v. Ananda Mohan Roy ,

(1915) 42 Cal 172 .
36 Dilbar Sardar v. Hosein Ali ,

(1899) 26 Cal 553 .
37 Har Prasad Tiwari v. Sheo Gobind Tiwari ,

(1922) 44 All 486 ; Murlidhar v. Pem Raj ,
(1899) 22 All 205 ; Bhawani Prasad v. Ghulam Muhammad ,
(1895) 18 All 121 ; Makund Lal v. Sunita ,
AIR 1931 All 461 ; Mohammad v. Madad Ali ,
AIR 1931 Oudh 309 .
38 Dip Narain Singh v. Nageshar Prasad ,

(1930) 52 All 338 .
39 Vasudeva Menon v. K.J. Plantation,

2012(3) KLT 7340 :
ILR 2012 (3) Ker 404 .
40 Lalji v. Nuran ,
(1883) 5 All 103 .
41 Gopal Pandey v. Parsotam Das ,

(1883) 5 All 121 .
42 Ganga Din v. Dhurandhar Singh ,

(1883) 5 All 495 .
43 Amar Nath v. Har Prasad ,

AIR 1932 Oudh 79 .
44 Rasik Lal v. Bidhumukhi ,

(1906) 33 Cal 1094 .
45 Durga v. Jhinguri ,
(1885) 7 All 511 .
46 Kamala Mayee v.
Nibaran Chandra ,
(1932) 36 CWN 149 ; Sarada Kanta v. Nabin Chandra ,
(1927) 54 Cal 333 ; Sulin Mohan Banerjee v. Raj Krishna Ghose, (1920) 33 CLJ 193
; Manmoth Nath Mitter v. Anath Bandhu Pal ,
(1918) 23 CWN 201 ; Madhusudan Sen v. Kamini Kanta Sen ,
(1905) 32 Cal 1023 ; Madhab Chandra Pal v. Bijoy Chand Mahatab ,
(1900) 4 CWN 574 .
Page 69 of 69
S. 6 (A).

(1930) 52 All 338 .
48 Section 56, Land Revenue Code (Bombay Act V of 1879).
49 Man Singh v. Nowlakhbati , (1926) 5 Pat 290 : 53 IA 11.
50 Parmeshwar Singh v. Joint Director, Consolidation, Muzaffarpur ,

2007 (4) PLJR 115 (117) (Pat).

AIR 1985 All 265 [
LNIND 1984 SC 342 ] (270).

AIR 1985 All 265 [
LNIND 1984 SC 342 ] (270).
53 R.R. Reddiar v. Controller, Estate Duty ,

AIR 1971 Ker 202 (204) (DB) : 81 ITR 521.
End of Document
Darashaw Vakil
S. 7.
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.
End of Document
S. 7 (A).
Darashaw Vakil
COMMENTS
Scope and application. —The qualifications necessary for a transfer are :—
(1) capacity to contract and
(2) be entitled to transferable property or

(3) authorized to dispose of transferable property not his own.
Such a person may transfer such property
(a) either wholly or in part and

(b) either absolutely or conditionally
to the extent and in the manner prescribed by any law in force.
A transfer/alienation of property by a person not competent to transfer is void in law, subsequent ratification cannot
render it valid. 54 Where a person is not the owner of the property, he cannot execute a valid agreement of sale in
respect of such property and such an agreement of sale would not bind the transferee. 55
Where the younger brother owner of the property was studying at other place, transfer of property by the elder
brother who had been managing the property in the knowledge of the former, was held valid and binding and could
not be challenged. A case of implied agency was found established. 56
Title to a property has a definite connotation. It is not the same as user. 57
Limited estate holders. —Unless armed with authority to transfer a man cannot transfer property not
his own 58 and where his estate is limited to the extent of his interest only. The rights of such estate holders are
Page 2 of 50
S. 7 (A).
discussed below.
Administrator General. —By Section 11 of the Administrator General’s Act, III of 1913 (1), the
Administrator General has power to sell property according to the directions of the Court. In default of such
directions, according to the provisions of the Act on sale, he can enter into covenant against his own
encumbrances. A grant of Letters of Administration of the estate of a deceased Hindu vests the property in him and
enables him to dispose of immovable property without the consent of the Court. 59 Nothing in
Section 80 of the Code of Civil Procedure, 1908 , shall apply to any suit against the Administrator
General in which no relief is claimed against him personally.60
Official Trustee. —Section 7, clause 2 of Act II of 1913, 61 precludes an Official Trustee from selling
immovable property without an order of the Court. He has the same powers and is subject to the same control and
orders as any other trustee acting in the same capacity. He is not an officer of the Court within the meaning of Rule
13 of Part II of the Original Side Rules of the Bombay High Court.62 And nothing in
Section 80 of the Code of Civil Procedure, 1908 , shall apply to any suit against him in which no relief is
claimed against him personally.63
Executor or administrator. —Under the

Indian Succession Act , XXXIX of 1925, the powers of an executor or administrator are subject to the
following rules:—
(1) An executor or administrator is the legal representative of a deceased person and all the property of the
deceased vests in him as such unless the deceased was a Hindu, Mahomedan, Buddhist, Sikh or Jain and
such property would otherwise have passed by survirorship to some other person. 64
(2) No right as executor can be established in any Court of Justice unless Probate or Letters of Administration
with the will annexed have been granted by a Court of competent jurisdiction in British India. This rule does
not apply in the case of wills made by Mahomedans, and in the case of a Hindu, Buddhist, Sikh or Jain
where such wills are of the classes specified in clauses (a) and (b) of Section 57. 65
(3) No right as administrator can be established in a Court of Justice unless Letters of Administration have first
been granted by a Court of competent jurisdiction. This rule has no application in the case of intestacy of a
Hindu, 66 Khoja, 67 Buddhist, Jain or Indian Christian. 68
(4) When probate is granted it establishes the will from the death of the testator and renders valid all
intermediate acts of the executor as such. 69
(5) When probate has been granted to several executors and one of them dies the entire representation of the
testator accrues to the surviving executor or executors. 70
(6) An executor or administrator has power to dispose of the property of the deceased vested in him either
wholly or in part, in such manner as he may think fit. 71
(7) The power of disposal of an executor or administrator, 72 in the case of a Hindu, Mahomedan, Buddhist,
Sikh or Jain shall be subject to the following restrictions and conditions :—
(8) Such as may be imposed by the will unless the Court which granted the probate permits him by an order in
writing notwithstanding the restriction to dispose of any immovable property specified in the order in the
manner permitted by the order.
(9) An administrator may not without the previous permission of the Court by which the Letters were granted.
(10) transfer by sale any immovable property vested in him under Section 211.
Page 3 of 50
S. 7 (A).
(11) A disposal of property in contravention of clause (a) or clause (b) by an executor or administrator is not
void but is only voidable at the instance of any other person interested in the property. 73 An order giving
power to sell does not include a power to mortgage. 74
(12) An alienation with permission is not absolute so as to exclude all inquiries in the question whether
permission was obtained through fraud or misrepresentation. All the essential elements of the transaction
must be placed before the Court before the sanction is obtained. Non-disclosure would entitle the Court to
go behind such permission. 75
(13) If an executor or administrator purchases, either directly or indirectly, any part of the property of the
deceased, the sale is voidable at the instance of any other person interested in the property sold. 76
(10) Powers of several executors or administrators may, in the absence of a direction to the contrary, be
exercised by any one of them who has proved the will or taken out Letters of Administration. 77
(11) On the death of one or more of several executors or administrators, in the absence of any direction to the
contrary in the will or grant, all the powers of the office become vested in the survivors or survivor. 78
(12) The administrator of effects unadministered, namely, an administrator de bonis non , has the same powers
on a cessate grant as the original executor or administrator. 79 Such an administrator is appointed either on
the death of a sole executor or last surviving executor if there be more than one or on the death of an
administrator when the estate at the time of such death is left unadministered.
(13) On discharge of funeral and testamentary expenses and debts and legacies an executor ceases to be an
executor. His rights, duties and liabilities are those of a trustee. 80
(14) By Section 2 of the Trustees Act81 the words "trust" and "trustee" shall extend to and include the duties
incident to the office of executor or administrator of a deceased person.
(15) On bankruptcy probate is not refused otherwise than when executor becomes non compos because that is
a natural disability. 82
(16) Property held by the insolvent on trust for any other person is not divisible amongst his creditors. 83 This
rule extends to executors and administrators.
(17) The Court has jurisdiction to restrain a bankrupt executor from acting. Usually in such cases a receiver is
appointed. 84 A receiver is unnecessary where there is a co-executor who can and will act alone, when the
other is restrained. 85 In the absence of proceedings the bankrupt may continue to act on bankruptcy of one
or two executors who are also trustees. It may be necessary for the plaintiff to take steps to remove the
defendant as trustee and to have a new trustee appointed in his place.
(18) If a testator when he makes his will is aware of the circumstances and position of his executors and
trustees the Court will not lightly interfere with their discretion; and although the circumstances of an
executor being an insolvent may be a reason for appointing a receiver, yet, if the testator was aware of his
insolvency, the Court will not on that ground alone take the property out of his hands. 86
Official Assignee. —On an adjudication order being made, the estate of the insolvent vests in the
Official Assignee under Section 17 of the Presidency Towns Insolvency Act, III of 1909, and under
Section 28 of the Provincial Insolvency Act , V of 1920, in the Official Receiver. The former under Section
68 and the latter under Section 59 has power to sell all or any part of the property of the insolvent either by public
auction or by private treaty.87 It is the duty of the Official Assignee to make the sale with all convenient speed. The
Court’s sanction is not necessary and the Court has no power to set aside a completed sale. 88 It is submitted that
in such a case relief may be sought in a regular suit. Conveyance of property sold by the Official Receiver in
insolvency is not exempt from the requirements of Section 5489 and unless guarded by express stipulation he is
bound as other persons to make a good title. 90 Conveyance by the Official Assignee is exempt from payment of
stamp duty. 91
A sale by an Official Receiver without a vesting order is invalid 92 and confers no title on the purchaser. 93 He is not
Page 4 of 50
S. 7 (A).
an agent of the Court so as to enable the Court to ratify his act. A sale made by him before his appointment as
receiver would be operative under
Section 43 of the Transfer of Property Act on his subsequent appointment as such receiver.94 An order
of discharge either under the Presidency Towns Insolvency Act or the
Provincial Insolvency Act , V of 1920, does not put an end to the insolvency proceedings and the power
of sale can be exercised under the directions of the Court even after discharge.95
An Official Receiver’s sale by public auction is subject to the rules of the

Code of Civil Procedure, 1908 , in that behalf. A change in the sale proclamation on day of sale would be
an irregularity vitiating the sale which may be set aside.96 It is not necessary that there should be mala fides on the
part of the Official Receiver or the purchaser to warrant interference. 97 The Calcutta High Court has held that the
procedure for sales in execution of decrees under the
Code of Civil Procedure does not apply to the Official Receiver.98 The property, moveable or
immovable, acquired by an insolvent after the adjudication order but before his final discharge, can be transferred
by him, provided the transaction is bona fide and for value and is completed before the intervention of the Official
Assignee. 1
Receiver. —A receiver is appointed under the

Code of Civil Procedure, 1908 . The powers conferred upon him are enumerated in Order 40, Rule 1(d)
of the Code. It is the practice to make an order vesting the property in the receiver and authorizing him to make the
conveyance. Although the vesting order is made in almost all cases and required by conveyancers as necessary for
the purpose of validating the title, it is somewhat difficult to understand on what law this practice is based, for the
proper course is, when a receiver is appointed, that he should sell the property and the parties interested should
execute the conveyance. With termination of the proceedings in which the receiver is appointed, the receivership
comes to an end.2 A receiver of an estate may be either a private person or an Official Receiver. The powers of
both are the same. In the case of private person, question often arises as to security. If he be offered to give
security and the security is not completed the order is not effective and in spite of the order empowering him to sell
he cannot sell without furnishing the requisite security. 3 This rule applies when the order is conditional and not
absolute in its terms. 4 A receiver is a public officer within the meaning of sub-clause (b) and also (h) of clause 17 of
Section 2 of the Civil Procedure Code, 1908 ,5 so that under
Section 80 of the Civil Procedure Code he is entitled to the statutory notice before a suit is filed against
him. The provisions of Section 80 are mandatory.6 Even so as regards description and place of residence. 7 The
words of the section as to how notice is to be served are also mandatory. The plaint must contain the required
announcement as to service of such notice. 8 A receiver occupies a position towards an estate in his hands
different from that of an executor and trustee. 9 He cannot, without sanction of the Court, purchase property of
which he is receiver. 10 A receiver is an officer of the Court and not an agent for the party for whom he is appointed.
11 The property is in the custody of the Court. 12 No suit can be brought against him without leave of the Court
which may be obtained subsequent to institution. 13 He cannot sell property without the sanction of the Court. The
sale may be by public auction or private treaty with the consent of the parties. On a sale by public auction he may
fix a reserve bid. The receiver is often authorized to execute the conveyance by the Court. A receiver cannot
delegate his powers. 14 A defendant will not be permitted to question the propriety, regularity or necessity of his
appointment. 15 He cannot enter into any covenant other than the covenant against his own encumbrances. A
purchase by a receiver of property of which he is appointed receiver would be set aside at the instance of the
beneficiary but he would be entitled to a charge for the purchasemoney and interest subject to which he would hold
the property in trust for the beneficiary. 16 A receiver’s sale is sometimes subject to sanction of the Court. Such a
condition does not entitle him to test the market.
Trustees. —By
Section 21 of the Specific Relief Act (I of 1877), contracts of trustees either in excess of their powers or
in breach of their trust cannot be specifically enforced. The summary powers conferred by the Trustees Act (XXVII
of 1866) may be exercised by the High Court in the case of Hindu trusts17 as well as Mahomedans. 18 Section 31 of
the said Act is repealed by the
Transfer of Property Act . That Act19 consolidates and amends the laws relating to the conveyance and
transfer of moveable and immovable property in British India vested in mortgagees and trustees in cases to which
Page 5 of 50
S. 7 (A).
the English Law is applicable. It defines immovable property as extending to and including messuages,
hereditaments and tenements, corporeal or incorporeal, of every tenure or description whatever may be the estate
or interest therein, and trustee as extending to and including implied and constructive trusts.
A direction to dispose of an estate does not import a power to sell but to manage. 20 Sale is not exchange. Power of
exchange does not include a power of sale, 21 nor does a power to invest, reinvest and land. 22 A trust for sale is
not spent by the beneficiaries attaining vested interests, 23 provided the power in its creation does not offend the
rule against perpetuities and the cestui que trust have not put an end to the trusts by electing to take the property as
it stands. 24 The question, however, depends on the intention of the donor of the power. 25
Trustees must sell at the best price. 26 Test of adequate price is not valuation but market value. 27 When there was
no evidence of market value a sale on the advice of auctioneers of repute was upheld. 28 A sale may be by private
treaty or public auction 29 and subject to a reserve 30 and either together or in lots and either at one time or at
several times. 31 For the purpose of completing any such sale a trustee has power to convey, 32 but a trustee is
incapable of exercising his power of sale or executing a conveyance without an order of the Court. Trustees may
sell trust property conjointly with property not subject to the trust. 33 The circumstances under which the trustees of
one property may join with the owner of another in selling both properties together was considered in the
undermentioned case, 34 where it was laid down that the duty of trustees who having a trust or power to sell joining
with the owner of another property in selling both properties together was first to see that such a mode of sale was
beneficial to their cestui que trust; secondly, to see their share of the purchase-money was apportioned before the
completion of the purchase and to obtain payment of such apportioned share; thirdly, to apportion the share
themselves, taking care to act under proper advice. The proper mode of apportioning the life estate and reversion
when sold together for a lump sum is to value both interests separately and not to put a value on one and deduct
that from the total price.
At the instance of a cestui que trust a purchaser would be retrained from completing a sale by trustees with
depreciatory conditions inserted without any reasonable grounds. The smallness of the plaintiff’s interest and the
fact of his infancy are not reasons against granting an injunction. 35 Trustees for sale put up certain land for sale by
auction in lots which were sold "subject to the existing tenancies, restrictive covenants and all easements and quit
rents, if any, affecting the same" and the purchasers were to indemnify the vendor against the breach of any
restrictive covenants contained in the abstracted muniments of title. There were also certain general conditions
restricting the occupation of the land. The abstracted documents contained no other restrictive covenants than
those comprised in the general conditions and the vendors stated that they knew of no other restrictive covenants
and of no existing tenancies, easements or quit rents affecting the property. Held that the conditions as to existing
tenancies and existing covenants were depreciatory and the objection was a good defence to an action for specific
performance by the trustees against the purchaser. 36 Where a trustee is empowered to sell he may sell subject to
a prior charge or not. 37 On sale the only covenant that can be required of a trustee is that so far as his own acts
are concerned he has not encumbered the property. On a covenant for production of scheduled deeds a trustee
covenants to be personally liable so long as the deeds remain in his custody and for the purpose of binding those in
whose custody they may thereafter go but not further or otherwise. Power of sale coming into operation on the
death of a tenant for life is not exercisable with the concurrence of such tenant. 38
Where an authority to deal with the trust property is given to several trustees and one of them disclaims or dies, the
authority may be exercised by the continuing trustees unless from the terms of the instrument of trust it is apparent
that the authority is to be exercised by a number in excess of the number of remaining trustees. 39 The English rule
is the other way. 40 An alienation for necessity by one without the consent of the other is not enforceable. 41
Bona fide payment and receipt of purchase-money of a person to whom money is payable under an express or
implied trust shall discharge the person making payment to see to its application or being answerable for its
misapplication. 42 Trustee for sale is prohibited from purchasing the trust property owing to his fiduciary character
unless the trust is dissolved or the trustee and cestui que trust agree to stand in the relation of vendor and
purchaser. This rule is general and extends to a secret or benami purchase by a trustee. 43 Being in a fiduciary
capacity a trustee cannot delegate his duties. 44 When the instrument of trust is silent or there is an express
Page 6 of 50
S. 7 (A).
prohibition as to sale, a trustee cannot sell and the sanction of the Court cannot be obtained, but there are
exceptional cases, known as cases of "emergency", where in spite of prohibition or absence of any such direction
the Court can in its extraordinary jurisdiction sanction the sale. Such jurisdiction is of an extremely delicate
character and has to be exercised with the greatest caution. 45 Such jurisdiction was exercised when the settlor
never contemplated the possibility of a setback nor of municipal requirements necessitated by the property
becoming extremely old and in need of repairs. 46 It was also exercised on the ground that a refusal would subject
the parties to a partition suit and a sale of the property by the Court which would be obviously injurious to the
beneficiaries for at a Court’s sale the property would hardly realize the price offered at a private sale. 47
Unless authorized by the instrument creating the trust a trustee cannot invest in purchase and when trustees have
such power they cannot combine two trusts for the purchase of one immovable property. 48
Vendor selling as trustee without power of sale. —A contract for sale stated that the trustee under
the will of a certain deceased person was selling the properties under the trusts and powers vested in him
thereunder and that the tenant for life would join for releasing her life-interest. On investigation it was discovered
that the trustee had no power or trust for sale. The contract was, however, made by him at the request of the tenant
for life and other beneficiaries, including himself, so that he could compel them to join. It was held that the vendor
had shown a good title. 49 But a trustee vendor who offered to procure a conveyance from the life tenant who was
not bound to convey at his request 50 or offered the concurrence of beneficiaries after the time for completion had
expired and long after the contract had been repudiated by the purchaser and the beneficiaries were not even then
bound to concur, 51 cannot be said to have made a good title. Where trustees under a will have power to sell with
the consent in writing of a named individual, a prospective assent in writing to any sale which they may make will
not enable them to enforce specific performance of a particular contract for sale. 52
Mortgagee. —A mortgagee can sell by public auction or by private treaty. A sale by him is governed by
Section 69 of the Transfer of Property Act and by contract between the parties. The only covenant that
can be required of him is one against encumbrances. If a mortgagor joins in the sale for concurrence or
confirmation he enters into the usual covenants for title given by a vendor, thus superseding his absolute covenants
in a mortgage deed. A subsequent mortgagee is entitled to redeem under
Section 91 of the Transfer of Property Act . If once the prior mortgagee has acquired a right to sell and
he enters into an agreement to sell in exercise of his power of sale, it is submitted that the subsequent mortgagee
cannot come in and redeem. When the first mortgagee is not entitled to sell without notice to the mortgagor the
purchaser is entitled to rescind if no notice has been given even though the mortgagor subsequently waives such
notice for the mortgagor could not waive notice as against the subsequent mortgagees.53 The second mortgagee is
not only entitled to such a notice but would be entitled to damages for default in giving such notice. 54 But the notice
by contract between the parties is in certain events dispensed with, in which case the mortgagee need not give the
notice. Again, the mortgagee is protected by the clause making a sale valid notwithstanding irregularity or
impropriety. Ordinarily when a mortgagee purchases a part of the equity of redemption, the integrity of the mortgage
is broken and the parties interested in the other portions of the equity of redemption can redeem piecemeal, but
where the mortgagee purchases a part of the mortgaged property at a sale free from all encumbrances, he can
throw the whole burden of the mortgage debt on the remaining mortgaged property. 55 A co-mortgagor is jointly
liable though he receives no part of the consideration. 56
A co-sharer in possession of land of his share is competent to transfer the same with possession. 57
Partners. —Law of partnership in India is regulated by the

Indian Partnership Act, 1932 , according to which a partner has no implied authority to acquire
immovable property on behalf of the firm or transfer such property belonging to the firm.58 Further, Section 8 of this
Act is a bar to a partner transferring the partnership property. Although partners were joint owners there is no
survivorship between them. 59 By mutual consent partnership property may be sold. All partners must join in the
Page 7 of 50
S. 7 (A).
conveyance. If some of them are dead the concurrence of the personal representatives of such of them as are dead
must be obtained as death operates as a dissolution of the firm. There are several forms of habendum which may
be adopted on a conveyance of freehold land to partners for partnership purposes. It may be to them as joint
tenants without the addition of any words showing what the equitable interest of the partners are, it may be to them
as joint tenants with the addition of words "as part of their partnership property" or "in trust for the partners as
tenants in common as part of their partnership property." Or it may be to the partners as tenants in common either
with or without the words "as part of their partnership property". 60 The powers of an individual partner under Indian
Law are sufficiently doubtful to justify a purchaser in refusing to accept a release or reconveyance executed by that
one partner only. 61 Where a mortgage executed by a partnership firm on dissolution is substituted and for any
reason found to be defective, there is always a presumption that the mortgagee intended to keep the prior mortgage
alive for his benefit. 62
Drunkard. —This is dealt with by

Section 12 ,
3 of the
Indian Contract Act (IX of 1872) which enacts that a person who is usually of sound mind but
occasionally of unsound mind may not make a contract when he is of unsound mind and illustration (b) to that
section states that a sane man who is delirious from fever or who is so drunk that he cannot understand the terms
of a contract or form a rational judgment as to its effect on his interests he cannot contract while such delirium or
drunkenness lasts. Although the executant might have been drinking hard and may frequently have been of
unsober and unsound mind yet it must be established that at the time when the deed was executed he was of
unsound mind.63 A drunkard by his own act becomes non compos mentis . 64
Person of weak intellect. —Where a party to a contract is weak but has ample protection and
independent advice and the other party is not shown to have taken any undue advantage of his weakness the Court
will not extend its protection in favour of such weak party. Mere loss of vigour and infirmity on account of old age is
not sufficient to invalidate a contract. With increasing old age there may come a time when there is a vacuity of
mind, but all transactions made by the man prior to his mind becoming blank cannot be set aside. In cases of weak
intellect the question may be looked at from the same point of view as in the case of a purdanashin lady. 65
Lunatics. —Lunatic means an idiot or person of unsound mind. 66 An idiot is a person of unsound mind,
incapable of understanding and acting in the ordinary course of life. 67 A person is of unsound mind when he is not
sufficient for the government of himself, 68 though on inquisition he may not be found to be a lunatic. 69 The true
test is the existence or non-existence of delusion as delusion and insanity may be looked upon as convertible
terms. 70 A person suffering from delusions may perform acts not influenced by such delusions and when it is
sought to set aside a transaction on this ground the Court must be satisfied that it was influenced by delusion. 71
The term unsound mind comprehends imbecility, whether congenital or arising from old age, as well as lunacy or
mental alienation resulting from disease. 72 Between imbecility and unsound mind there is a distinction without a
difference. 73 Loss of mental power arising from natural decay or paralysis or softening of the brain amounts to
lunacy. 74 The jurisdiction under Sections 62 and 38 of the Indian Lunacy Act, IV of 1912, are not concurrent and
before a District Court can institute inquisition it must be satisfied not only as to the alleged lunatic’s residence
within jurisdiction but that he is not subject to the jurisdiction of the High Court. 75 The Judge’s functions cannot be
delegated to an arbitrator or commissioner to make a report as to the alleged lunatic’s state of mind. 76 Before an
inquisition is ordered under Sections 38 and 62 there must be a thorough and careful preliminary inquiry and
consideration of evidence including affidavit of applicant, medical certificate as to condition, 77 and personal
interview by the Judge with a view to ascertain the abnormality of the mind. 78 The Act contemplates the question of
lunacy or sanity at the date of inquiry and not when the alleged lunatic first became of unsound mind. 79 According
to Section 2 of the Indian Trustees Act, 80 a lunatic shall mean any person who shall have been found by due
course of law to be of unsound mind and incapable of managing his affairs and a "person of unsound mind" shall
mean any person not a minor who not having been found to be a lunatic shall be incapable from infirmity of mind to
manage his own affairs.
Page 8 of 50
S. 7 (A).
Section 12 of the Indian Contract Act , IX of 1872, lays down rules as to what is sound mind for the
purpose of contracting. The cases which may be included in the
Indian Contract Act , IX of 1872, are cases which are outside the Indian Lunacy Act, IV of 1912, for when
once it is established by inquisition that a person is a lunatic no further question arises of lucid interval or of sound
mind at any stage until he is declared to be able to manage his affairs.
Any person of unsound mind is not at all competent to transfer any property belonging to him in view of the
provisions of
Section 7 of the T.P. Act . A person of unsound mind he in view of the provisions
Section 11 of the Indian Contract Act, 1872 is not competent to contract and competent to transfer any
property by a deed of gift etc. , a transfer by him would therefore be void ab initio . 81
Minority does not preclude devolution of lease hold interest. The devolution does not require any contract. The
minors on attaining majority need not be represented by the guardian. 82
Where in case of joint property partition was proved, the respondent had transferred his share, the plaintiff’s plea
that the respondent-transferor was lunatic and hence incapable of transferring the property, was found devoid of
substance, the co-owner cannot resist delivery of possession to the transferee. 83
A sale at great undervalue from one afterwards found lunatic was set aside but the conveyance would stand as
security for what was really paid. 84 So also in the case of sale by a vendor of feeble intellect not absolutely
incapable of managing his own affairs but in such a state of mental incapacity as to make it necessary that he
should have protection. 85 It is a fraud to obtain conveyance from an insane person long before a commission of
lunacy issued and it should be set aside. Similarly, in case of purchase by lunatic the sale would be void, nor would
the auctioneer be liable for any difference between the price obtained at that sale and the subsequent sale. 86 In a
case, however, where a person of unsound mind made a contract for purchase and subsequently on inquisition was
found to be of unsound mind, a committee was appointed to complete the purchase. 87 Here the direction to the
committee to complete the purchase amounted to an election by the lunacy authorities to adopt the voidable
contract.
A sale by manager of a judicially decreed insane Mahomedan is void and incapable of ratification. 88 So also when
a Hindu woman having a lunatic husband and minor sons and appointed guardian of the lunatic’s estate alienated
the family property such alienation was held binding as regards the minors but not as regards the lunatic. 89 In
cases of joint Hindu family the interference of the Courts is strictly limited to acts of the guardian as imperil the
lunatic’s interest; the Court has no power to interfere with the joint family property. 90 The same principle applies to
purchase by a lunatic as by a minor, namely, that the
Transfer of Property Act does not prohibit a transfer to a person incompetent to contract. Lunacy
proceedings are set aside under Sections 60 and 82 of the Act. In order to avoid a contract on the ground of
unsoundness of mind of one of the contracting parties it must be decided whether such a person was of unsound
mind at the date of the contract which largely depends upon the inference to be drawn from the evidence.1 Where a
person has been found lunatic by inquisition, so long as the inquisition has not been superseded but continues in
force he cannot, even during a lucid interval, execute a valid deed dealing with or disposing of his property. 2 When
a person having contracted to sell his estate afterwards becomes a lunatic, the Court may, under Section 51 of the
above Act, order the manager to execute the conveyance if the Court thinks that the contract is such as ought to be
performed. Again, the Court may, if it appears to be just or for the lunatic’s benefit, order immovable property of the
lunatic, whether in possession, reversion, remainder or contingency, to be sold for any of the purposes mentioned
in Section 49 of the Indian Lunacy Act, 1912, and the manager of the lunatic’s estate may execute all conveyances
as the Court may order in the name and on behalf of the lunatic.
Page 9 of 50
S. 7 (A).
Manager. —Merely because a person collects rent and manages an estate of the landlord does not
empower him to alienate the land as the agent of the landlord. 3
Joint managers. —Where there is no provision for survivorship in the order of appointment of joint
managers the office of the survivor terminates on the death of his co-manager. 4
Minor’s sale. —A minor means a person who, under the provisions of the Indian
Majority Act, 1875 , is to be deemed not to have attained majority. The Privy Council has held that a
minor’s contract is void.5 A contract for sale of immovable property being a contract that a sale of such property
shall take place on terms settled between the parties, 6 it follows that a sale by a minor is void. The same decision is
an authority for the proposition that under
Section 41 of the Specific Relief Act , I of 1877, the Court may, on adjudging the cancellation of an
instrument, require the party to whom such relief is granted to make compensation to the other.7 But the purchaser
was held not entitled to the return of his purchase-money where no fraud was practised by a vendor and the
purchaser could have ascertained the age of the vendor by due diligence. 8
A minor may ratify on attaining majority, as by acceptance of the surplus left after satisfying a decree against him. 9
A minor for whose benefit a contract was entered into by is de facto guardian is entitled to sue upon it. 10 He may
repudiate by sale, on attaining majority, to a third person. 11 So also may his heir. 12 The plea of invalidity of a sale
by a minor’s guardian is available not only to the minor on coming of age but also to the transferee. 13 Where there
was no equity restoration was refused. 14 The jurisdiction of the Indian Courts in regard to the appointment of
guardians for infants is derived from the Guardian and Wards Act, VIII of 1890. Where a guardian has been
appointed by will or other instrument his power to transfer by sale immovable property belonging to his ward is
subject to the restriction imposed by the instrument; unless he has been declared a guardian under the Guardian
and Wards Act, VIII of 1890, and the Court which made the declaration permits him by order in writing
notwithstanding the restriction to dispose of any immovable property specified in the order in a manner permitted by
the order. 15 The right of a guardian appointed by the Court to transfer by sale the property of his ward is limited
and is subject to the previous sanction of the Court. 16 A disposal of immovable property by him in contravention to
the above provisions is voidable at the instance of any other person affected thereby. 17 A sanction of the Court
given in 1896 could not validate a sale in 1906. This was held where a Hindu died leaving a widow and two minor
sons. The widow was appointed guardian in 1890 and in 1891 obtained sanction of the Court for sale of half the
property of the minors. In 1906 a sale of less than half the property was effected by the widow and one of the sons
who had attained majority. 18 A widow appointed guardian of the person and property of her two minor sons cannot
effect a sale of joint family property by joining her eldest son who was a major as the interest of a member of the
joint family was not individual property. 19 A purdanashin lady may be appointed guardian of a minor’s property. 20
An Official Trustee cannot be appointed guardian of the property of a minor. 21 The power of a manager or de facto
guardian to alienate the estate of an infant is under Hindu Law both limited and qualified. It can only be exercised in
case of legal necessity which under certain circumstances means benefit to the estate. 22 In so doing the Courts
considered they were following the decisions of the Privy Council. 23 A contrary view was, however, taken by the
Madras High Court in Narayanan v. Ravunni 24 and by the Bombay High Court in Limbaji v. Rahi , 25 nor
is such power possessed by a manager or de facto guardian in case of a Mahomedan 26 or Indian Christian 27 or
Buddhist 28 and their sales are void. A Full Bench of the Bombay High Court, after a review of the case law, held
that it would not be accurate to say that no transaction could be for the benefit of a minor which was not of a
character to protect or preserve the property of the minor. The sale of land which cannot conveniently be cultivated
with other property of the minor, and the investment of the purchase-money in lands which could be so conveniently
cultivated; or the sale of lands in order to raise money to secure irrigation or permanent improvement of the other
lands of the minor; or a beneficial exchange; or a sale in order to prevent destruction of the minor’s property, are
transactions which would be for the benefit of the estate.
The mother and guardian of a Hindu minor sold for Rs. 900 a small strip of land normally worth not more than Rs.
600. The purchase-money was invested by the mother in the money-lending business which had been carried on
Page 10 of 50
S. 7 (A).
by the minor’s father and was at the date of the sale carried on by the mother. The minor on attaining the age of
majority sued to set aside the sale. Held by the Full Bench that the sale in question could not be justified as being
for the benefit of the estate. 29 A Division Bench of the Bombay High Court has held that a person who purported to
sell an infant’s property was not in fact a de facto guardian but a guardian de hoc . 30 In this state of authorities the
question came before a Full Bench of the Bombay High Court as to whether under the Hindu Law a de facto
guardian of a minor can validly sell his property to a third person for legal necessity. The two underlying facts that
he was a de facto guardian and there was legal necessity were assumed. The majority held that he could,
overruling Limbaji Rowji v. Rahi . 31 The dissenting judgment of the Chief Justice was that he could not and that his
position was not analogous to that of a manager of Hindu joint family, pointing out the strangeness of the conclusion
resulting therefrom, that power should be annexed to an office held without authority which would not be so
annexed if the office were held under legal sanction. A so-called guardian de facto is not a guardian at all but is
merely a person who has assumed, without authority, to act as guardian and it is a strong thing to hold that by such
assumption he has acquired the right to deal with the minor’s immovable property. 32 Alienation by Mahomedan
brothers on behalf of a minor brother is not binding on the latter nor is such an unauthorized transaction bettered by
describing them as de facto guardians. In the latter capacity they may assume important responsibilities but they
cannot clothe themselves with legal power to sell. The sale must be under the authority of an appointment by the
Court. 33 Where a minor is, however, a member of a joint Hindu family, no guardian can be appointed under the
Guardian and Wards Act, 1890 of his undivided interest as the interest of such a member in the joint family is not
individual property. 34 But a chartered High Court has power to appoint a managing member as guardian of such
interest with power to alienate the same. 35 The Guardian and Wards Act, 1890 specially preserves pre-existing
powers possessed by a chartered High Court. 36 An alienation by a guardian of a minor with the sanction of the
Court can be relied on by the alienee unless the latter has been a party to a fraud or collusion or guilty of underhand
dealing. 37 The fact that the order granting sanction has not recited, as required by Section 31(2) of the Guardian
and Wards Act, 1890, the necessity for the loan, does not render the sanction invalid. Such a defect is a mere
irregularity. The Court must be taken as having adopted the grounds set forth in the petition and affidavits though
not reproduced in the order. 38 Where the order was cancelled by the Court subsequently, the order of cancellation
having had no connection with the validity of the debt itself, but the money was advanced by the lender while the
order was in existence, held, that the lender was still entitled to rely implicity on the order. 39 But where a guardian
appointed under the Guardian and Wards Act, 1890, makes a transfer of the minor’s property without obtaining the
permission of the District Judge, the latter has no power to cancel it in the sense that the transfer becomes
inoperative by force of that order. Any question as regards the validity of the transfer is to be determined by a
competent Court in a regular suit. 40
A private alienation though confirmed by the execution Court under O. 21, r. 83 of the
Code of Civil Procedure, 1908 , is not validated if such alienation is made by a certificated guardian and
the transaction is not confirmed by the Court which appointed the guardian. The inquiry under Section 29 of the
Guardian and Wards Act, 1890 is for the benefit of the infant while under the
Code of Civil Procedure it is for the protection of the execution creditor, though such a transaction is
liable to be avoided in proper proceedings under Section 30 of the Guardian and Wards Act, 1890, it can, however,
be only on the principle that he who seeks equity must do equity and the person seeking to avoid the transaction
must be prepared to reimburse the purchaser whose money has benefited the infant.41 The Court, while granting
permission to a certified guardian of a minor to transfer the minor’s property, can impose conditions on the
guardian. A distinction must be drawn between condition precedent and a condition subsequent imposed on the
guardian. Non-compliance with the former will vitiate the transfer. The same cannot be said with regard to the latter
unless there is something in the order granting permission casting an obligation on the transferee of that property to
do some act subsequent to the execution of the deed of transfer in his favour. The only duty cast upon the
transferee by law is that he must satisfy himself that the order sanctioning transfer has been strictly complied with
up to the time of the execution of the deed of transfer and that no condition precedent imposed by the order has
been violated. 42 On a sale by a guardian with the sanction of the Court:—
(a) Apart from any covenant personally binding the guardian he is not liable in damages if the purchaser is
deprived of the whole or part of the property in consequence of the sanction of the Court found to be
invalid.
(b) Covenants in the deed executed by the guardian as such should be considered covenants binding on the
minor if such covenants are valid.
Page 11 of 50
S. 7 (A).
(c) Merely because the guardian acts on behalf of the minor he does not incur any vicarious liability on the
failure of the transaction by reason of the Court’s sanction being held to be ineffective.
(d) If the guardian has agreed expressly or by necessary implication in his personal capacity wholly apart from
his capacity as guardian of the minor to indemnify the purchaser he would be personally liable. 43
A natural guardian of a Hindu minor is not competent or authorised to dispose of the transferable property of the
minor, without the previous permission of the court. The natural guardian can dispose of the transferable property of
a minor after obtaining the previous permission of the court, only if such transfer is necessary or reasonable and
proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate. 44
A guardian appointed by the Court is required to give security. Till such security has been completed, he is not a
guardian so that if a guardian appointed by the Court has not given security a transfer made by him would be void.
In the absence of any directions in the order a guardian must furnish security. Under Rule 453 of THE RULES OF
THE HIGH COURT of Bombay a person appointed guardian shall, unless otherwise ordered, first give security. A
minor’s guardian cannot be compelled to give covenants for title, as no guardian can render a minor liable. 45
Transfer of property by minor-Ratification by minor on attaining majority. — The sale of property

of the minor is void; the minor on attaining majority cannot validate it. 46
Minors’ agreement for purchase. —Neither the guardian of a minor nor his manager is competent to
bind the minor or his estate by contract for the purchase of an immovable property and as a minor is not bound by
the contract there being no mutuality he cannot, on attaining majority, obtain specific performance of the contract. 47
Purchase by minor. —As regards sale in favour of a minor the Madras High Court held, on the
authority of the Privy Council, 48 that imposition of liabilities by
Section 55 of the Transfer of Property Act involved the notion of competency to contract and as it was
impossible to conceive of a sale without a reciprocal promise, past or concurrent, there could be no legal sale in
favour of a minor.49 The view of the Allahabad High Court is that nowhere in the Act is it provided that a minor is
incapable of being a transferee of the property and, moreover,
Section 127 of the Transfer of Property Act by necessary implication shows that the person who is not
competent to contract may be a donee of immovable property, therefore a minor in whose favour a valid deed of
sale is executed is competent to sue for possession.50 A gift, however, is not the result of contract between the
donor and the donee. A Full Bench of the Madras High Court, deciding that a mortgage in favour of a minor was
valid, 51 overruled its previous decision. 52 The state of the law on the subject is unsatisfactory. In case of sales of
freehold as well as leasehold a vendor enters into covenants for title. When a purchaser is a minor, with whom is he
to enter into these covenants? Again, in the case of leasehold the purchaser of leasehold property enters into a
covenant that he will regularly pay the rents and observe the covenants of the lease and indemnify the vendor
against any breach thereof. How can a minor enter into such a contract? In this connection reference may be made
to Section 7 of the Act which enacts that every person competent to contract and entitled to transferable property or
authorized to dispose of transferable property not his own is competent to transfer such property. Further, Section
6, clause (h) (3) enacts that no transfer can be made to a person legally disqualified to be a transferee. The word
"transferee" is nowhere defined in the Act. Again, every sale is the result of a contract between a vendor and
purchaser.
There is nothing in the

T.P. Act disqualifying a minor to be a transferee.53 When a lease is created, it does not amount to
transfer of immovable property or interest therein impliciter in favour of minor since a minor is also under an
Page 12 of 50
S. 7 (A).
obligation to pay stipulated rent. Besides payment of rent, he has to perform several obligations given under
Section 108 -B, T.P.Act. A guardian has no authority to impose any personal liability on the minor. 54
Estoppel. —As regards the doctrine of estoppel, it has been held that
Section 115 of the Indian Evidence Act, 1872 does not apply to infants.55 But the Bombay High Court
has held that where there is a false and fraudulent representation as to age the minor is estopped. 56 The same
view has been adopted by the High Courts of Allahabad 57 and Calcutta. 58 The Privy Council has laid down that
this rule of estoppel does not bind a minor. 59 This was followed by a Full Bench of the Bombay High Court 60
overruling its previous decisions 61 approving the decision of the Madras High Court. 62 On a sale by a guardian of
a minor the purchaser cannot insist upon covenants for title except as against his own encumbrances. 63 In England
sales and purchases by infants are regulated by special legislation such as the Infants Relief Act of 1874 and the
Settled Land Act of 1925.
Custody of minor. —If a minor is in the actual custody of another person with the permission of the
guardian he is deemed to be in the constructive custody of the guardian. 64
What "guardian" includes. —The term "guardian" in the Act has been used in a wide sense. It does
not necessarily mean a guardian duly appointed or declared by the Court, but includes a natural guardian or a de
facto guardian. A father is the natural guardian of his minor son. 65
Residence of guardian. —It is not necessary that the proposed guardian should be resident within the
jurisdiction of the Court. 66
Willingness of guardian. —The willingness of the proposed guardian need not be intimated by a
signed and attested declaration. 67
Covenant to repurchase. —A contract of sale by a guardian on behalf of the minor containing a

covenant to repurchase if the vendee desires to sell is not a standing offer but a completed contract unenforceable
by either party for want of mutuality. 68
Joint tenants. —Their holding is to all others except themselves as one single owner. Inter se they
have separate rights which are equal in all respects, it not being possible for one of them to have a greater interest
than another in the subject of the tenancy. It is distinguished by unity of possession, unity of interest, unity of title,
and unity of time at the commencement of such title. The property is limited to them and their heirs or to them and
their heirs and assigns although the heirs of one of them will only succeed to the inheritance provided the joint
tenancy be allowed to continue. A proper form of assurance between joint tenants is a release by deed and this
release operates rather as an extinguishment of right than as a conveyance. The incidents of joint tenancy last only
so long as the joint tenancy exists. Prior to the Law of Property Act, 1925, any one of them had power to sever the
tenancy by disposing of his own share in the estate and destroy the joint tenancy. 69 He may now sever the joint
tenancy in an equitable but not in a legal estate so as to create a tenancy in common. A joint tenancy is severed
upon bankruptcy 70 but not on marriage. 71 If the effect is to vest the property in the husband then there will be a
severance of the joint tenancy. From the moment of severance, unity of interest and title is destroyed, but unity of
possession continues, and the share disposed of is discharged from the incidents of joint tenancy and becomes the
subject of a tenancy in common. If there are three joint tenants and one of them severs his interest in favour of a
stranger the latter holds an undivided third part of the lands as tenant in common with the remaining two. These two
would remain joint tenants of their two-third share. Between a joint tenancy and tenancy in common the only
Page 13 of 50
S. 7 (A).
similarity that exists is the unity of possession. 72 The incidents of a joint tenancy in a Hindu coparcenery are
peculiar to that law. I have not been able to find any text writer dealing with this subject whether a joint tenancy can
be contract be created in unequal shares, for example, two joint tenants, one having a third and the other a two-
third share in joint tenancy with the chance of survivorship. It is submitted that such an interest cannot be created
as being repugnant to law. The point arose in the Bombay High Court in suit No. 663 of 1921, Gordhandas T.
Mangaldas v. Kissondas T. Mangaldas , but the suit was compromised. It also arose in the Calcutta High Court. By
a deed of Sharkatnama the members of a Hindu family, governed by the Mitakshara Law, declared that each of the
members was entitled to a definite fractional part of the whole estate. It was held that this was not sufficient to
constitute a valid partition according to Hindu Law. No doubt the expression of a joint tenant’s interest in the joint
estate as a half or a third or any other fraction, is not strictly consistent with the theory of the joint family property as
set forth in the judgment of Appoovier v. Rama Subba , 73 yet a mere definition of the whole without any indication
of intention to divide interest and liabilities is not sufficient to constitute a legal dissolution of the joint family. It is
impossible to overrule the expressed declaration of continuing joint ownership because the parties have by deed
given definitions of their shares by describing them as what they would be if anyone claimed a partition. Even if for
common conveniences they took the rents and profits of the estate in certain defined shares yet, in face of this
distinct declaration that the community of interest remained unbroken, it would be no evidence of separation. 74 A
passage in Dart 75 shows that joint tenants are sometimes made to covenant both jointly and severally and it seems
that where they contract without disclosing their separate interests the vendor will be entitled to such covenants :
though it appears more reasonable to restrict their covenants to the extent of such shares as they would be entitled
to on a severance, leading one to infer that a joint tenancy can be held in unequal shares. A joint tenant may
alienate his interest in his lifetime but this, subject to that right, devolves on the survivor. Where one of two joint
tenants agreed to sell his moiety and died, the purchaser could enforce specific performance of the contract against
the survivor. 76 If two persons being joint tenants perish by one blow, the estate will remain in joint tenancy in their
respective heirs. 77 When there are three joint tenants and one of them disposes of his interest to a stranger the
latter is a tenant in common with the other two who continue as joint tenants of the two-thirds with the chance of
survivorship. 78 Effect of demise by joint tenants to one of them is a severance during the term. 79 A corporation
and a natural person may be tenants in common but not joint tenants for two reasons, first, a corporation has
perpetual succession and, second, the legal ownership of a natural person which passes to his heirs and
representatives is so essentially different from that of a corporation that the law regards them as incapable of
coalescing in the manner necessary for the creation of a joint tenancy. 80 An undivided share in immovable property
cannot by contract be held in joint tenancy nor is it possible for the owner of such share to create one by way of
trust. In Mahomedan Law an undivided interest in property is known as Mushaa . As to making a wakf of a Mushaa
, the Courts in India are divided in opinion. According to the follower of Iman Abu Yusuf, 81 such a wakf may be
created by mere declaration whilst according to the follower of Iman Muhammad it cannot unless the wakf should
actually divest himself of possession. 82 Hence where parties are subject to the latter school of thought no joint
tenancy by the creation of trust or contract is possible.
Tenants in common. —Tenants in common are such as have a unity of possession but distinct and
several titles to their shares which are by no means necessarily equal so that one tenant in common may have but
a life or other limited interest in his share, another may be seized in fee of his. A tenant in common is as to his own
undivided share, precisely in the position of the owner of an entire and separate estate. 83 On the death of a
Mahomedan his heirs take their share in severalty. 84 Tenants in common, when severing, must take mutual
conveyances. It cannot be transferred by mere agreement. With regard to covenants by tenants in common, each
one of them enters into usual covenants for title as to his own share or interest in the property. 85 Acts,
circumstances and dealings may rebut the presumption of joint tenancy. The Court is at liberty to receive evidence
of the acts of joint tenants shewing that they considered themselves entitled as tenants in common.
1. A joint letter written to trustees of a will signifies acceptance of privilege given by a testator to purchase a
warehouse. 86
2. When a purchase is made out of moneys standing in joint account in a bank it is not necessarily joint
tenancy. The origin of the money and the acts and intention of the parties must be looked to and a
conclusion in favour of the tenancy in common drawn from the circumstances. 87
3. Notwithstanding insertion of the joint account clause the mortgagees were entitled to the mortgage-moneys
as tenants in common. 88
Page 14 of 50
S. 7 (A).
An estate conveyed to persons in form as joint tenants has been adjudged to have been held by them as tenants in
common when the purchase was for a joint speculation. 89 There is no fiduciary relationship between tenants in
common nor can one co-tenant impose upon another an obligation of a fiduciary character by leaving the
management of the property in his hands. 90 A purchaser from a coparcener is not a tenant in common with the
other members. 91 The subject is dealt with in Sections 44 to 47 of the Act.
Coparcener. —As to alienation of undivided interest in coparcenery property, in Bombay, according to

the Mitakshara Law, it is now well established that a coparcener can alienate his own interest in joint family property
provided there is valuable consideration for it. 92 The same rule applies in Madras 93 which has gone so far as to
recognize an alienation by way of gift. The view adopted under the same text in Calcutta and Allahabad is to the
contrary. The Privy Council in a case from Bengal held that as to ancestral estate under the Mitakshara Law so long
as the estate is undivided and the share of a member of the family is indefinite it is not competent to a coparcener
to alienate his share without the consent of the other coparceners. 94 The same tribunal, in a case from Allahabad
where father and son constituted a joint family holding ancestral estate, held that under the Mitakshara Law as
administered by the High Courts of the United Provinces and Bengal, an undivided share in ancestral estate held by
a son as a member of the joint family in coparcenery cannot be alienated by him without the consent of those who
share the joint estate. 95 The same rule was extended to father’s alienation which was neither for legal necessity
nor for an antecedent debt. 96 As to Berar, the Judicial Committee accepted the view that Mitakshara is to be
interpreted there in the same manner as in Bombay. 97 A similar view is prevalent in the Central Provinces. 98 The
above rules do not extend to a surviving coparcener whether the alienation be for or without consideration. 1 Again,
no coparcener can make a gift of his undivided interest 2 except with the consent of the others. 3
Severance of joint family. —Marriage under the

Special Marriage Act (III of 1872) of any member of an undivided family affects a severance from such
family.4
Hindu widow. —Where a property is held by a husband as a limited and restricted owner of the
property, the wife does not become absolute owner of the property by virtue of
Section 14(1)of the Hindu Succession Act, 1956 .5 The power of disposition which the law denies to a
Hindu widow who has inherited property of her husband may be exercised when supported on the ground either of
legal necessity or the performance of religious acts. The Hindu system recognizes two sets of religious acts. One in
connection with actual obsequies of the deceased and the periodical performance of the obsequial rites described
in the Hindu religious law, which are considered as essential for the salvation of the soul of the deceased. The other
relates to acts which although not essential or obligatory, are still pious observances which conduce to the bliss of
the deceased’s soul. With regard to the first set her powers are wider than in respect of the acts which are simply
pious, and if performed are meritorious so far as they conduce to the spiritual benefit of the deceased. In the first
case, if the income of the property or the property itself be not sufficient to cover the expenses, she would be
entitled to sell the whole of it. In the other case she can alienate only a small portion for pious or charitable
purposes as she may have in view. 6 In the first set would be included payment of husband’s debts though barred 7
unless her deceased husband had repudiated the debts before his death, 8 or she had discharged the debt in his
lifetime. 9 Pilgrimage for the benefit of the husband’s soul 10 or to Pandarpur 11 or Gaya 12 but not to Benares, 13
the digging of tanks, 14 building of temples, 15 performance of father’s shraddha ceremony. 16 Gifts for the
observance of bhog (food offerings) to a deity and for the maintenance of priests for the salvation of her deceased
husband, his family and widow, 17 or by way of suphal sankalp to a priest of Gaya, 18 or in favour of a family deity
when also the test is the proportion of the property and not the necessity of the deity, 19 fall in the second set of
religious acts. In Lachmi Kunwar v. Durga Kunwar , 20 a gift made by a Hindu widow for the spiritual benefit of her
husband, after she had returned from a pilgrimage, was upheld, and in Gobind Upadhya v. Lakhrani, 21
a similar gift made by a widow on her return from a pilgrimage to Gaya was treated as valid and binding on the
reversionary heirs of her husband. In drawing the above distinction their Lordships sounded a note of warning that
the distinction was in no small degree embarrassing and care should be taken to avoid the confusion which arose
by mixing up an indispensable or obligatory duty with a pious purpose which, although optional, was spiritually
beneficial to the deceased. 22 The texts of almost all Rishis were quoted in Ram Sumaran Prasad v. Gobind Das ,
Page 15 of 50
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23 and received the interpretation of TURNER, L.J., who stated thus:—"For religious or charitable purposes, or
those which are supposed to conduce to the spiritual welfare of her husband, she has a larger power of disposition
than that which she possesses for purely wordly purposes. To support an alienation for the last she must shew
necessity". 24 But a widow whose right is only confined to maintenance and is not in possession of the property has
no such power as aforesaid. 25 This was the case of a mother who had not inherited the property and whose
authority to act for the spiritual benefit of her deceased son was not on the same footing as a similar act would have
been by the widow or by the minor sons as in Bai Chanchal v. Chimanlal 26 where also the widow was
not in possession. As to moveables inherited by a widow, her power of disposal depends upon the law by which she
is governed. In that part of the Presidency of Bombay where Mayukha prevails she has an absolute power of
disposal. 27 In the other provinces, including that part of the Presidency of Bombay where the Mitakshara prevails,
her power over moveables inherited by her is analogous to that over immovable property. 28 This does not include
testamentary power over inherited property. 29 Again, a widow’s power according to Mayukha over moveables
acquired on partition with her sons is absolute. 30
Alienation with consent of reversioner. —Alienation by a Hindu widow with consent of the
reversioners may be :—
(a) for legal necessity, actual or presumed;

(b) without legal necessity.
As to (a), their Lordships of the Privy Council stated that where the alienation of the whole or part of the estate is to
be supported on the ground of necessity (then, if such necessity is not proved aliunde , and the alienee does not
prove inquiry on his part, and honest belief in the necessity) the consent of such reversioners as might fairly be
expected to be interested to quarrel with the transaction will be held to afford a presumptive proof which, if not
rebutted by contrary proof, will validate the transaction as a right and proper one. 31 That is to say, the consent is
not conclusive proof of the existence of legal necessity but raises a presumption of the existence of such necessity.
32 The operation of the above rule must ordinarily be limited to transfers for consideration and cannot appropriately
be extended to voluntary transfers by way of gift where there is no question of legal necessity. 33 Further, the
alienation must be to a stranger and not to a sole reversioner or to one of the reversioners with the consent of the
others. 34 Where part of the consideration for a transfer by a widow is found to have been applied to the payment of
the husband’s debts, the transaction should be set aside on terms that the reversioners pay to the transferee the
sum so applied. 35 As to (b), when she alienates without legal necessity with the consent of the reversioner, the
latter cannot dispute its validity, 36 and herein the existence or otherwise of consideration is immaterial. 37
Alienation without the consent of the reversioner. —An alienation by a Hindu widow without the
consent of the reversioner may be :—
(a) for legal necessity,

(b) without a legal necessity.
As to (a) her powers are no less than those of a manager of an infant’s estate. 38 She may not alienate in order to
improve the husband’s estate but she can make a permanent alienation if justified on the ground of necessity. The
"necessity" involves some notion of pressure from outside and not merely a desire to better or develop the estate. 39
Section 38 of the present Act permits an alienation by a Hindu widow where the property is insufficient for her
maintenance if the transferee after using reasonable care to ascertain the existence of such circumstances has
acted in good faith. In case (b) the transfer is not valid beyond her lifetime, 40 and the reversioners are not bound. 41
It is settled law that an alienation by a widow in excess of her power is not altogether void but only voidable by the
Page 16 of 50
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reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express
ratification or by acts which treat it as valid or binding. 42
Necessity. —Necessity to justify alienation by a Hindu widow includes the right to mortgage for her own
maintenance and support of dependent relatives of her husband and those of persons for the maintenance of whom
the deceased would have been liable if alive, 43 and a sale of the estate for debts contracted for the thread and
marriage ceremonies of one of her daughter’s sons. 44 So also an alienation for expenses of marriage of the
deceased owner’s uncle’s son’s daughter 45 and those of daughters 46 and son’s daughter 47 or the betrothal of her
daughter. 48 An alienation to provide for dowry for the widow’s daughter provided it is reasonable cannot be
questioned, it being immaterial whether the deed was executed before or after the marriage ceremony, 49 and so
also a gift upon the occasion of her daughter’s gowna ceremony. 50 And a mother who has acquired the estate of
her deceased son could make a valid gift to her son-in-law on the occasion of his marriage with her daughter
provided it was found to be otherwise reasonable in extent. 51 The execution of a mortgage to pay for shraddha
ceremony of her mother, Government revenue, costs of succession certificate and a rent decree was held to have
been made for legal necessity. 52
But payment of money to recover property sold for arrears of road-cess is not a legal necessity but a personal debt.
53 Family debts not incurred by the widow and costs of defending law suits are also cases of legal necessity. 54
Where there was an actual existing necessity the circumstances that the widow’s mismanagement contributed
towards it will not affect the alienation unless it be shown that the lender acted mala fide . 55
Benefit of the estate. —Yet a third ground on which her power of alienation has been upheld is where it
is for "the benefit of the estate," a phrase as to the interpretation of which the Courts in India are not unanimous, as
will appear from the undermentioned cases. 56
Reversioner how far bound. —Attestation is not evidence of consent. 57 A reversioner who is a party
to an instrument and takes benefit under the transaction evidenced thereby is precluded from questioning any part
of it. 58 But a reversioner who has not by any act or omission debarred himself from insisting on this contention
may, notwithstanding the reversion is an expectancy, sue for a declaration, for an expectant reversioner’s right to
sue for a declaration has statutory recognition. 59 Lapse of time raises a presumption that the parties to the
document included all persons who had an actual or possible interest in the properties, 60 but not that it was
justified by legal necessity. 61 A reversioner who has not consented may ratify the transaction or impeach it by
treating it as a nullity without the intervention of the Court after the death of the alienating widow. 62 This right in a
Bombay case has been described as "election". 63 Where the reversioner is a female the consent must be of the
male reversioner, for if the next reversioner be a female her concurrence would be of no avail. In order to render
alienation indefeasible the consent of the reversioner immediately next to such female reversioner must also be
obtained, and this is the law even where a female, as in Bombay, takes an absolute estate. 64 A reversioner who
joins in a widow’s mortgage of her husband’s estate is not liable to satisfy the debt. 65
Indian Succession Act .—A fourth mode of alienation open to a widow on the ground of legal
necessity is with leave of the Court first had and obtained under
Section 307 of the Indian Succession Act . Where a Hindu widow has obtained a grant of Letters of
Administration and subsequently adopted a son, her estate is divested and she cannot obtain an order under this
section. Her proper course is to have the grant revoked under
Section 262 of the Indian Succession Act and apply for the appointment of a guardian for the adopted
son and obtain an order to alienate under the Guardian and Wards Act, 1890.
Page 17 of 50
S. 7 (A).
Borrowing on personal credit. —Ordinarily, a Hindu widow raises money for necessity either by sale
or mortgage. The Courts in India differ on the question whether property in the hands of a reversioner is liable to
satisfy a personal debt not secured, on such debt which a widow, while enjoying a widow’s estate, has property
incurred in the course of management of the property. The Calcutta High Court 66 admitted her right to borrow
moneys on her personal credit rendering the estate liable. This view was recently adopted by a Full Bench of the
Bombay High Court, 67 overruling its previous decisions 68 and dissenting from the Allahabad 69 and Madras 70
High Courts.
Joint widows. —The settled law is that if a Hindu dies leaving two widows they succeed as joint tenants
with a right of survivorship. They may partition the estate between themselves and each may enjoy the income of
her share. Each can deal with her life-interest but she cannot alienate the corpus as to prejudice the survivor or
future reversioner. Together they can burden the reversion for a legal necessity but one of them acting without
authority of the other cannot prejudice the right of survivorship by burdening or alienating any part of, the estate. It
has, however, been observed, although the case has not arisen, that if the concurrence of the co-widow was asked
for borrowing, and unreasonably refused, a mortgage under those circumstances would bind the estate. 71 Further,
each of them may also relinquish her right of survivorship in that portion of the estate which is held by the other.
The effect of such an arrangement would be that on the death of one the estate in her possession will not revert to
the other who has relinquished her right but will go to her heirs as if it was her stridhan and the heirs, or, if she
makes an alienation of any portion of the estate, the alienee will continue in possession of the estate till the death of
the last survivor. 72 The two cases 73 mentioned below form an exception to the general current of authority on the
ground that the senior widow has power to alienate without concurrence of the junior for necessary purpose—a
proposition not supported by the actual decision. It is explained in a recent case that the Judges there were of
opinion that the senior widow was recognized as manager or agent of the other, an inference which could be made
only in a case where there was no known hostility between the widows. 74 It has been observed that a mortgage by
one for legal necessity where concurrence of the other has been withheld unreasonably would bind the estate. 75
Duty of purchaser or mortgagee. —It is the duty of the purchaser or mortgagee from the manager of a
joint Hindu family to satisfy himself of the existence of necessity as would entitle him to enter into the transaction
binding the minor members. This obligation cannot be cast on the Court and he cannot insist that unless the Court
sanctions the transaction he will not enter into it. If, however, on proper and reasonable inquiries he is satisfied as
to necessity, he is justified in entering into the transaction. 76 This was commented on by a Division Bench of the
same Court. 77
Surrender by a Hindu widow. —This doctrine of surrender and consequent acceleration of the
reversionary estate has not been incorporated by judicial decisions but is to be found in original texts of Hindu Law.
78 Surrender is the effacement of the widow by renunciation of her interest to the nearest reversioner if one or to all
reversioners nearest in degree, if more than one at the moment of alienation, thereby accelerating their interest. If
there be more than one widow all of them must efface themselves. 79 It may be accomplished by a single act or by a
series of alienations the cumulative effect of which is the total effacement of the widow. 80 In such circumstances
the question of necessity 81 does not arise. But it must be bona fide and not a device to enlarge her own estate with
the reversioner. 82 The validity of the surrender does not depend upon the widow’s motive. 83 It must be of the
entire estate so that the widow’s estate is completely destroyed and extinguished. 84 Being an effacement of the
widow there cannot be a widow partly effaced and partly not so. Next reversioners cannot confer an unrestricted
prospective power of alienation on the widow. The power of accelerating the reversioner’s estate cannot be used by
the widow as a means of enlarging her own estate or effecting alienations to strangers as it will be an abuse on the
limited power vested in her. The reversioner’s right to validate alienations is not derived from the power to
surrender. The former is analogous to the power of sapindas to consent to an adoption : the latter is based upon the
application of the English doctrine of merger. 85 There is a distinction when a surrender is made to a female
reversioner who takes, as in Bombay, an absolute estate and who, as in Benares and other provinces, takes a
limited estate. In the former case the surrender is indefeasible 86 whilst in the latter case the effect is merely to
accelerate her succession and put her by anticipation in possession of her life estate so that on the death of the
widow it reverts to the nearest male reversioner. 87 The validity of the renunciation is independent of the validity of
the agreement as to the subsequent disposal of the property by the alienee. 88 A widow cannot by the device of
Page 18 of 50
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surrender enlarge her estate and therefore with the consent of the presumptive reversioner she cannot convert her
life estate in any portion of her husband’s estate which she retains for herself into an absolute estate freed from the
shackles on alienation. 89
To the general principle established in Goundan’s case, 90 that the surrender must be total, a somewhat anomalous
sanction was accorded by Bhagwat Koer’s case 91 and Misser’s case. 92 Both these cases imposed on the general
principle a qualification that on a surrender the widow may retain a small part of the estate for her maintenance.
These cases were results of compromise. The Bombay High Court, not being able to reconcile the qualification with
the principle held, in a case where the widow reserved 42 acres and 31 gunthas inherited from her husband for her
maintenance, that it was a device on her part to divide the estate with the reversioner. 93 The same Court has,
however, held valid a surrender of a life estate by a widow to the next reversioner who agreed to maintain the
widow for her life. 94 Misser’s case was explained and distinguished in Mansingh’s case 95 where their
Lordships declared the surrender which reserved maintenance allowance to the widow as invalid being not only in
contravention of Section 60 of the Court of Wards Act, the widows being wards of the Court, but also void under
Hindu Law. Where a Hindu widow gave up all her rights in her husband’s estate in favour of her co-widow and the
latter predeceased the former, the reversioner’s estate is not accelerated.1 On a surrender by a Hindu widow all
prior alienations in excess of her powers are liable to be challenged by the reversioner immediately just as they
could be impeached on her death. He has not to wait till the widow’s death. 2
Manager of a Hindu family. —The principle laid down by the Privy Council in Hanuman Prasaud v.
Musammat Babooee 3 as to the power of a manager for an infant heir to charge an estate not his own,
was adopted by that tribunal in case of a sale 4 by a manager of a joint family consisting of a father and sons who
constituted the coparcenery. In a coparcenery the manager, known as karta , is naturally the father, 5 and in his
absence the senior members of the family. A younger member when put forward to the outside world by the elder
members as a manager may also alienate. 6 The power is a limited and qualified one which can only be exercised
rightly by the manager in case of need 7 or for the benefit of the estate. 8 The actual pressure on the estate, the
danger to be averted or the benefit to be conferred in the particular instance are the criteria to be regarded. 9 In the
case above referred to, their Lordships held that a sale of joint property should not be set aside merely because
part of the proceeds, which is not a small part, is not proved to have been applied for purposes of necessity. The
real question to be considered is whether the sale itself was justified by necessity; if the purchaser has acted
honestly and made due inquiry as to existence of necessity he is not bound to account for the application of the
price. 10 The rights of the coparceners in a joint Hindu family consisting of a father and his sons, grandsons and
great grandsons, do not differ from those of the coparceners in a like family consisting of undivided brethren, except
in so far as the sons are affected by the obligation of the Hindu Law to pay their father’s debts, and by the fact that
he is naturally the manager of the joint family estate. 11 All schools are agreed that a father can alienate
coparcenery property in case of legal necessity or for the benefit of the estate or to discharge an antecedent debt of
his own provided the debt was not contracted by the father for an illegal or an immoral purpose. Equally agreed are
they that where the share of a coparcener has passed out of the joint family by sale in execution of a decree such
sale cannot be impeached, 12 but if the coparcener dies before attachment in his lifetime, then the right by
survivorship is in conflict with the right in execution and being prior in point of time, defeats the rights of the
execution creditor. 13 It has been observed that the term "necessity" must not be strictly construed. The benefit to
the family may under certain circumstances mean a necessity for the transaction, 14 nor is a sale to be set aside
because a portion of the consideration unsupported by legal necessity is only an insignificant proportion of the
whole. The father of a joint Hindu family governed by the Mitakshara can only sell or mortgage the joint family
property so as to bind his sons in two cases—namely, (1) where the alienation is for family necessity; (2) where the
alienation is made to discharge a debt which was antecedent to the alienation. 15
Further, during the father’s lifetime an alienation by him is effective only in the first case, since its validity in the
second case rests upon the pious duty of the sons to discharge their father’s debt and that duty arises only upon his
death. 16 Dealing with an alienation by a father as manager of a joint family consisting of himself and his two minor
sons, the Judicial Committee exhaustively reviewed the authorities and as a result of which summed up the
following propositions 17 :—
Page 19 of 50
S. 7 (A).
(1) The managing coparcener (which expression includes the father of a joint undivided estate) cannot
alienate or burden the estate qua manager except for purpose of necessity. 18
(2) If he is the father, which expression includes the grandfather and great grandfather, and the reversioners
are the sons (which expression includes the grandsons and great grandsons) he may, by incurring debt, so
long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a
decree for payment of that debt. 19 The burden of proving the nature of the debt is on the sons, proof of
general extravagance or profligacy on the part of the father is sufficient. 20
(3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent
debt, it would not bind the estate. 21
(4) An antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly
independent and not part of the transaction impeached. 22
(5) There is no rule that this result is affected by the question whether the father who contracted the debt or
burdened the estate, is alive or dead. 23 Instances of sale being permitted when the father for whose debt
the sale was made was still alive may be found in the below mentioned cases. 24
The touchstone of a manager’s alienation is the existence of a legal necessity 25 If this be established the alienation
is valid in spite of absence of consent among the members of the family. 26 He cannot bind the estate at his own
free will and without any compelling cause so as to bind the repudiating reversioners. He may, however, alienate
with the consent of some or all the coparceners. In the latter case the alienation cannot be questioned though there
be no legal or justifying necessity. In the former case, in Bombay and Madras and Berars, it would bind such as
have consented, 27 but in the other provinces it would not bind the share of any member of the family, not even the
manager. 28 An alienation of family property made by the manager of a joint Hindu family without legal necessity is
not absolutely void. It is voidable at the instance of persons whose interests are affected by it, viz. , the coparceners
in the property. The repudiating coparceners may uphold the sale or seek to repudiate it. 29 A sale was effected by
a grandfather as manager of a joint family to discharge encumbrances upon the interest which the plaintiffs
acquired upon their birth. They not being for an immoral consideration were held as antecedent debts incurred
before birth of the plaintiffs to discharge which the joint family property could validly be sold. 30 Again, a manager of
a joint Hindu family of traders has power to sell for the benefit of the family. In a case where in return for balance
due from a customer the joint Hindu family of traders consisting of two brothers, of whom one had a major and two
minor sons, had to purchase the land from the said customer at some loss, and in order to reduce the loss the
father and manager of the family agreed to sell the land to the plaintiff at a certain price, it was held that the plaintiff
was entitled to enforce specific performance of the contract to sell against the minor members also. 31 It has been
held also that such a contract on the death of the manager can be enforced against the survivors when they are
majors. 32 But in the absence of proof of an antecedent debt or of necessity an alienation of the joint family property
of a Mitakshara family by its karta is void; the transaction itself gives to the alienee no rights against the karta’s
interest in the joint family property. 33 It must be observed that a purchaser cannot sue for partition and obtain an
allotment by metes and bounds of his vendor’s share but he must file a suit for general partition 34 though it has
now been settled by decision of a Full Bench that there is no fluctuation in the share to which an alienee is entitled,
his share being the share of the vendor at the date of the alienation. 35
Only gifts made by the managing member of a joint Hindu family in favour of the daughters as a marriage provision
either at the time of the marriage or later in pursuance of an earlier provision are valid, if the properties gifted are
found to be reasonable, having regard to the extent of the properties of the joint family. 36 A gift by the managing of
the family to any other person on the ground of religious pious or meritorious purpose is not valid. 37 A gift made by
the son in favour of his mother was held invalid. 38
Enforceability of contract of sale against minors. —A contract for the sale of joint ancestral property
for legal necessity or benefit of the family entered into by the manager of a joint Hindu family where some
coparceners are minors can be specifically enforced against the joint family including the minor caparceners. To
such a case the rule in Mir Sarwarjan v. Fakhruddin 39 does not apply. Such a contract stands on a
different footing from contracts made by the guardian of a minor or manager of a minor’s estate. In the former case
Page 20 of 50
S. 7 (A).
the manager represents the whole family as one unit, in the latter case the contracting party is the minor alone who
acts through his guardian. In the former case no question of want of mutuality on the ground of minority can arise. 40
Property passing out of the joint family. —A distinction subsists between a private alienation and an
auction sale. As soon as the joint family property has passed to the auction purchaser by virtue of the sale and its
confirmation and whether delivery has taken place or not, the property has "passed out of the joint family under a
sale in execution of a decree" within the scope of the rule in Suraj Bansi’s case 41 and the auction purchaser is
entitled to protect himself against a suit by the son unless the latter establishes that the debt was contracted for an
illegal or immoral purpose and when the auction purchaser is a stranger it must further be established that he had
notice of the nature of the debt. 42
Purchase of property after land acquisition proceedings. —A person can only purchase a property
from the one who is the owner of the property. When the erstwhile owner ceases to be the owner of the property on
acquisition of land under the
Land Acquisition Act then the subsequent purchase from him is meaningless.43
Purdanashin lady. —It is not necessary nor desirable in such a case to insist upon a clear
understanding of each detail of a matter which may be much involved in legal technicalities. It is sufficient that the
general result is understood by the lady and that she had people disinterested and competent to give advice with a
fair understanding of the whole matter who advised her that she should execute the deed. 44 Where both a
purdanashin and illiterate lady put her thumb impression by remaining behind the purdah not having seen the
attesting witness and where the deed was designed for payment of debts of her husband, a man of violent temper
and addicted to drinks and prostitutes, it was held that there was no intelligent execution of the deed by her. 45
Although the extent and character of the explanation required must depend upon circumstances, the disposition
made must be substantially understood by her. It must really be her mental act as the execution is her physical act.
46 To entitle her to protection it is not enough to prove that she lives in some degree of seclusion. So where a lady
who had stood in the witness-box, put in tenants, fixed and recovered rent from them, paid municipal rates and
taxes, was not regarded as purdanashin lady. 47 In Farid-un-nissa v. Mukhtar Ahmad , 48 the Privy Council
considered the nature and extent of the onus of proof in such cases as appearing from the decisions of the Judicial
Committee. In the case of a document executed by a purdanashin woman it is not sufficient to shew that the
document was read out to her; it must further be proved that it was explained to her, and that she really understood
its nature and effect. The onus of proof in such a case is on the party seeking to uphold the transaction effected by
the document and the quantum of evidence required depends upon the circumstances of each case. The mere fact
that the woman lives in seclusion or sits behind a purdah does not necessarily show that she is weakminded,
ignorant or incapable of understanding her affairs. 49 An admission will into be binding and conclusive in the case of
a purdanashin lady. 50
Mahant. —A math is a distinct entity endowed with juristic personality and as such competent to acquire
and become possessed of property by gifts or by endowments. 51 An asthal , commonly known in Northern India as
a math , is an institution of a monastic nature established for the service of a particular cult. The mahant is the
head, he manages the property, administers its affairs, and the whole assets are vested in him as the owner thereof
in trust for the institution itself. The nature of the ownership is an ownership in trust and although large
administrative powers are vested in him this trust does exist and must be respected. 52 Any property that stands in
the name of an idol or an institution represents a dedication to the Almighty and is debuttar property. The shebait or
mahant is only a custodian of the property. To exempt such property from attachment and sale in execution, the
onus is on the mahant to prove that the ownership rests with the idol. A mahant , even though an ascetic, is capable
of holding personal property. The test to determine whether the property is dedicated to a math or is the absolute
property of the mahant is whether the math is subservient to the mahant or vice versa , and whether the mahant is
under a legal obligation to apply the income of the property in his possession solely to the purpose of the institution,
or whether, in order to justify his profession as an ascetic, he devotes at his discretion a fraction of the income to
the purposes of the math . 53 The power of a mahant to alienate debuttar property being, like the power of a
manager for an infant heir, limited to cases of unavoidable necessity, a permanent lease at a fixed rent, though
Page 21 of 50
S. 7 (A).
adequate at the time, is a breach of duty in the mahant , and on the most favourable construction could only ensue
for the life of the grantor and was not binding on his successor. 54 If the lender acts honestly and makes proper
inquiries he is protected though there be no real necessity. 55 Loan for daily worship is a necessity. 56 An idol
cannot be regarded perpetually as a minor. 57 The head of a math is not a trustee in the sense in which that term is
understood in English Law. The conception of a trust in the English legal sense is unknown in the Hindu system
pure and simple. He is nevertheless, in view of the obligations and duties resting on him, answerable as a trustee in
the general sense for proper administration. 58 Alienation not justified by legal necessity is void. 59 In case of a
mortgage, the immediate cause of borrowing should be considered. 60 He may mortgage or sell for sradh of a
deceased mahant . 61 When a loan is applied for discharging duties for which he is responsible as head it can be
recovered from the succeeding head of the math and in the event of his default by the appointment of a receiver of
the income of the math so that his beneficial interest may be applied to discharge the decree. 62
A decree may be made charging temple funds where moneys are borrowed for temple purposes under a promise to
pay out of temple funds but not creating a charge thereon. 63 To recover moneys due on a mortgage of debuttar
property the decree may be passed against the property. 64 Although an assignment or disposition of a math and its
properties by the mahant is void, either a sale or permanent lease by him of an item of property appertaining to the
math , even if not for necessity, is valid during the tenure of office of the mahant . 65 A consent decree in a suit, in
which the debuttar estate is not properly impleaded, cannot terminate the debuttar character of the endowed
property. 66 And where the ultimate benefit is for persons other than the family deity, it is not an absolute debuttar.
Where it appeared that the existing property was the property of the idol and the idol was duly worshipped, a proper
dedication could be presumed. A debuttar property can be transferred under certain circumstances, viz. , (i) where
such transfer was allowed by custom, (ii) where such transfer was made by one of the shebaits to a co- shebait ,
and (iii) where all the shebaits combined to make the transfer to a stranger. 67 The duties of a hereditary office and
the emoluments appertaining thereto remain within the family of the original grantee. A member of the family could
alienate his share in favour of the remaining members of the family but he could not endeavour to alienate either to
a person outside the family or to the original grantor or a descendant from him. 68 A pujari has no right of beneficial
enjoyment. 69 In the Madras Presidency, where private temples are practically unknown, the presumption is that
temples are public, but in case of Malabar temples there is no presumption one way or the other. 70
The manager of a temple is known as the shebait who is by virtue of his office the administrator of the property. As
regards the service of the temple and the duties appertaining to it, he is in the position of the holder of an office or
dignity. 71 The word uralan means the guardian or manager of a temple and uraima the office of uralan . 72 Both
idols and maths are juristic persons whilst a temple is not. 73
Judgment debtor. —So long as the Collector has been authorized to exercise the powers or duties
conferred or imposed on him by paragraphs 1 to 10 of
Schedule 3 of the Code of Civil Procedure, 1908 , the judgment debtor or his representative in interest
shall be incompetent to mortgage, charge, lease, or alienate such property except with the written permission of the
Collector and this restriction is absolute and no implied limitation can be read into it; hence a mortgage of such
property is void74 so also a gift. 75 With this may be compared the bar of
Section 64 of the Civil Procedure Code, 1908 , and
Section 52 of the Transfer of Property Act .
Crown. —The Crown has power to buy and sell property. On the sale of property by the Crown no
covenants for title can be demanded.
Sub-Registrar’s power to refuse registration of sale deed. —A Sub-Registrar cannot refuse/withhold

Page 22 of 50
S. 7 (A).
registration of a sale deed on the ground that the vendor has no title. 76
Miscellaneous. —The words used in the document themselves provide guideline for the interpretation
of a document. 77
Where the land was acquired by the Government of Karnataka for Bangalore Dairy Project, the assets and liabilities
of the Diary Project were transferred by a Government order in favour of Karnataka Diary Development
Corporation, which subsequently became Karnataka Mill Federation, but no agreement required under the law was
executed, held the property continued the property of the State Government and as such the transfer of the land by
the State Government to the petitioners was a valid one. 78
While valuating the assets of a company no deduction shall be made from the value of the assets of the anticipated
capital gains tax liability on the hypothetical sale under the settlement. 79
Operation of transfer.
54 K. Kamamma v. Y. Appanna ,
AIR 1973 AP 201 [
LNIND 1972 AP 89 ] (203) : (1975) 2 Andh WR 74.
55 Attaur Raheman Fateh Mohammed v. Hari Peeraji Burud , 2008

AIHC 1817 (1821) (Bom).
56 Foujdar Kameshwar Dutt Singh v. Ghanshyamdas , 1987 (Supp) SCC 689 (690).
57 M.P. Wakf Board v. Subhan Shah,

(2006) 10 SCC 696 [
LNIND 2006 SC 892 ] (701):
(2011) 11 SCALE 71 .
58 Muninanjappa v. R. Manual
(2001) 5 SCC 363 [
2001 SC 1754 Chitu v. Charan Singh ,
AIR 1923 All 563 .
59 Alwar Chetty v. Chidambara Mudali , (1915) 38 Mad 1134.
60 Section 41, Administrator General’s Act, III of 1913.
61 Official Trustee’s Act, 1913.

Page 23 of 50
S. 7 (A).
62 Omar Tyab v. Ismail Tyab ,

(1928) 39 Bom LR 177 .
63 Section 16, Official Trustee’s Act, 1913.
64 Section 211.
65 Section 213.
66 Chidambara v. Krishnasami , (1916) 39 Mad 365.
67 Abdul Karim v. Karmali ,

(1920) 22 Bom LR 708 [
LNIND 1920 BOM 74 ]; Mahomed Yusuf v. Hurgovandas , (1923) 47 Bom 231 ;
Shaik Moosa v. Shaikh Essa , (1884) 8 Bom 241.
68 Section 212.
69 Section 227.
70 Section 226.
71 Section 307.
72 Section 307, sub-section 2.
73 Jnanendra v. Shorashi ,
(1922) 49 Cal 626 ; Chandbi v. Abdul Karim , (1927) 51 Bom 16.
74 Chandbi v. Abdul Karim , (1927) 51 Bom 16.
75 Musammat Jaibai v. Rewaram ,

AIR 1927 Nag 57 .
76 Section 310.
77 Section 311.
78 Section 312.
79 Section 313.
Page 24 of 50
S. 7 (A).
80 Ex-parte Amerchand Madhowji, (1905) 29 Bom 188.
81 XXVII of 1866.
82 Hill v. Mills, (1691) 1 Salk 36 : 91 ER 37.
83 Section. 52 (1) (a), Presidency Towns Insolvency Act, III of 1909.
84 Utterson v. Mair , (1793) 2 Ves. 95 : 30 ER 540; Gladdon v. Stoneman , (1808) 1 Mad

143 n. : 56 ER 54; Rex. v. Simpson , (1764) 1 W.Bl. 456.
85 Bowen v. Phillips , (1897) 1 Ch. 174.
86 Stainton v. Carron Company , (1854) 18 Beav. 146 : 52 ER 58.
87 Entazuddi Sheikh v. Ram Krishna Banik ,

(1920) 24 CWN 1072 .
88 Woonwalla & Co. v. N.C. Macleod , (1906) 30 Bom 515.
89 Abdul Hashim v. Aman Krishna Saha ,

(1919) 46 Cal 887 .
90 M’Donald v. Hanson , 12 Ves. Jun. 277 : 33 ER 106.
91 Section 115, Presidency Towns Insolvency Act, III of 1909.
92 Subba Aiyar v. Ramaswami Aiyangar , (1921) 44 Mad 547 ; Official Receiver of

Trichinopoly v. Samasundaram,
(1916) 30 MLJ 415 [
LNIND 1916 MAD 54 ] ; Rama Aiyar v. Official Receiver of Tinnevelly,
(1917) 32 MLJ 520 [
LNIND 1917 MAD 10 ] ; Kavali Sankara Rao v. Ramakrishnaya,
(1924) 46 MLJ 184 [
LNIND 1923 MAD 260 ] ; Sankaranarayana Pillai v. Rajamani , (1924) 47 Mad 462 ;
Muthusami v. Somoo Kandiar , (1920) 43 Mad 869.
93 Vythilinga v. Ponnuswami,
(1921) 41 MLJ 78 .
94 Basava Sankaran v. Ganapati Anjaneyulu , (1927) 50 Mad 135.
95 K.P.S.P.P.L. Firm v. C.A.P.C. Firm, AIR 1929 Rang 168 ; Rowe & Co. Ltd. v. Tan Thean
Taik , AIR 1925 Rang 105.
Page 25 of 50
S. 7 (A).
96 Tiruvenkatachariar v. Thanayiammal , (1916) 39 Mad 479.
97 Ramabadra Chetty v. Ramaswami Chetty,

(1923) 44 MLJ 284 [
LNIND 1922 MAD 166 ].
98 Entazuddi Sheikh v. Ram Krishna Banik ,

(1918) 22 CWN 1072 .
1 Chhot Lal v. Kedar Nath ,

AIR 1924 All 703 ; Alimahmad v. Vadilal , (1919) 43 Bom 890 ; Kristocomul Mitter v.
Suresh Chunder ,
(1882) 8 Cal 556 ; Cohen v. Kitchell,
(1890) 25 QBD 262 ; Lakhmi Chand v. Kedar Nath ,
AIR 1928 All 12 ; Official Assignee v. N.P.A.K. Chettyar Firm, (1927) 5 Rang 229.
2 Rabeholme v. Smith ,
(1907) 34 Cal 336 .
3 Edwards v. Edwards , (1876) 2 Ch. D. 291; Srinivas v. Kesho, (1911) 14 CLJ 489.
4 Bhairab v. Nandiram ,
(1919) 46 Cal 70 .
5 Prasaddas v. K.S. Bannerjee ,

(1930) 57 Cal 1127 ; Raja Jagadish Chandra Deo v. Rai Debendra Prasad ,
(1930) 35 CWN 161 .
6 Bhagchand v. The Secretary of State for India , (1927) 51 Bom 725 : 54 IA 338.
7 Prasaddas v. KB Bannerjee ,
(1930) 57 Cal 1127 .
8 Raja Jagadish Chandra Deo v. Rai Debendra Prasad ,

(1930) 35 CWN 161 .
9 Mohari Bibi v. Shyama Bibi ,

(1903) 30 Cal 937 .
10 Nugent v. Nugent , (1907) 2 Ch. 292; Jiteswar v. Sudha ,

(1932) 59 Cal 956 .
11 Ward v. Shew , (1833) 9 Bing. 608 : 131 ER 742; Re. Flowers & Co.,
(1897) 1 QB 14 .
12 Musadee Mahomed Cassum Sherazee v. Meerza Ally Mahomed Shoostry , (1851) 6 MIA
27 : 19 ER 11.
Page 26 of 50
S. 7 (A).
13 Jamshedji v. Husseinbhai , (1920) 44 Bom 903.
14 Balaji v. Ramchandra , (1895) 19 Bom 660.
15 Greenawalt v. Wilson , (1893) 52 Kan 104 : 34 Pac. 403.
16 Nugent v. Nugent , (1907) 2 Ch. 292.
17 In the matter of the petition of Khandas Narandas, (1881) 5 Bom 154 ; Lang v. Moolii,
(1919) 21 Bom LR 1111 [
LNIND 1919 BOM 110 ].
18 Fakrunnessa v. District Judge ,

(1920) 47 Cal 592 ; Habihar v. Saidannessa Bibi ,
(1924) 51 Cal 331 .
19 XXVII of 1866.
20 Sheffield v. Orrery (Lord) , (1745) 3 Atk 282 : 26 ER 965.
21 McQueen v. Farquhar , (1805) 11 Ves. 467 : 32 ER 1168.
22 Re. Holloway, Holloway v. Holloway,

(1888) 60 LT 46 .
23 Re. Tweedie & Miles , (1884) 27 Ch. D. 315; Re. Powell, Bodvel-Roberts v. Poole ,
(1918) 1 Ch. 407.
24 Re. Cotton’s Trustees & The School Board for London , (1882) 19 Ch. D. 624.
25 Re. Jump, Galloway v. Hope , (1903) 1 Ch. 129; Re. Sadley (Lord) & Baines & Co .,
(1894) 1 Ch. 334.
26 Ord. v. Noel , (1820) 5 Mad 438 : 56 ER 962.
27 Wilton v. Hill , (1855) 25 LJ Ch. 156.
28 Grove v. Search, Griffin v. Search,

(1906) 22 TLR 290 .
29
Section 37, Indian Trusts Act , II of 1882.
Page 27 of 50
S. 7 (A).
30 Re. Peytons Settlement , (1862) 30 Beav. 252 : 54 ER 885.
31
32
33 Rede v. Oakes , (1864) 34 LJ Ch. 145.
34 In re. Cooper & Allen’s Contract for sale to Harlech , (1876) 4 Ch. 802.
35 Dance v. Goldinham , (1873) 8 Ch. App. 902.
36 Dunn v. Flood , (1885) 28 Ch. D. 586.
37
Section 37, Indian Trusts Act II of 1882.
38 Re. Bryant & Barningham’s Contract , (1890) 44 Ch. D. 218.
39 Section 44 of the Trust Act, II of 1882.
40 Lane v. Debenham , (1853) 11 Hare 188 : 68 ER 1241.
41 Parkum Chirathodi v. Narayanan , (1919) 42 Mad 335.
42 Section 31, Trustees and Mortgagees Act (XXVIII of 1866).
43 Peary Mohan Mukerji v. Monohar Mukerji ,

(1921) 23 Bom LR 913 [
LNIND 1921 BOM 63 ], P.C.
44 Bonnerji v. Sitanath Das ,

(1922) 49 Cal 325 : 49 IA 46; Parasurama v. Thiruma , (1921) 44 Mad 636.
45 In re New , (1901) 2 Ch. 534; In re. Tollemeche , (1903) 1 Ch. 955.
46 In re Shirinbai Merwanji , (1919) 43 Bom 518.
47 De Souza v. Daphtary ,
(1923) 25 Bom LR 610 [
LNIND 1923 BOM 106 ].
Page 28 of 50
S. 7 (A).
48 Section 20, The Trust Act, II of 1882.
49 Re. Baker & Selmon’s Contract , (1907) 1 Ch. 238; Re. Atkinson & Horsell’s Contract ,
(1912) 2 Ch. 1; Re. Hailes & Hutchinson’s Contract , (1920) 2 Ch. 233.
50 In re Bryant & Barningham’s Contract , (1890) 44 Ch. D. 218.
51 In re Head’s Trustees & Macdonald , (1890) 49 Ch. D. 310.
52 Illustration (b),
Section 25, Specific Relief Act (I of 1887).
53 Foster v. Hoggart,
(1850) 15 QB 155 .
54 Hoole v. Smith , (1881) 17 Ch. D. 434.
55 Mohendra Nath Banerji v. Rani Sm. Harshamukhi Dassi ,

(1935) 40 CWN 108 .
56 Sm. Annamovi v. Umesh Chandra ,

(1936) 40 CWN 339 .
57 Ram Dass v. Shisha Singh ,

(2001) 3 Punj LR 544 (552) (P&H).
58 See Section 19, sub-section 2, clauses (f) and (g).
59 Morris v. Barrett , (1829) 3 Y&J 384 : 148 ER 1228.
60 Encyclopaedia of Forms, 1st Ed., Vol. 12, p. 503.
61 Hirachand v. Jayagopal , (1925) 49 Bom 245 (267).
62 Punjab and Sind Bank Ltd. v. Kishen Singh Gulab Singh , (1935) 16 Lah 881.
63 Jai Narain v. Mahabir Prasad ,

AIR 1926 Oudh 470 .
64 Beverley’s case , (1603) 4 Co. Rep. 123b : 76 ER 1118.

Page 29 of 50
S. 7 (A).
65 Ram sundar v. Raj Kumar ,

(1928) 55 Cal 285 .
66 Section 3 (5), The Indian Lunacy Act, IV of 1912.
67 Ball v. Mannin , (1829) 1 Dow. & Cl. 380 : 4 ER 1241.
68 Ex-parte Canmer , (1806) 12 Ves. 445 : 33 ER 168.
69 R e. Martin’s Trusts, Land, Building Investment & Cottage Improvement Co. v. Martin, Re. Martin , (1887)
34 Ch. D. 618.
70 Dew v. Clark & Clark , (1826) 3 Add. 79 : 162 ER 410, 414.
71 Monosseh v. Shapurji ,
(1908) 10 Bom LR 1004 [
LNIND 1908 BOM 103 ].
72 In re Cowasji Byramji Lialaoovala , (1883) 7 Bom 15.
73 Empress v. Husen , (1881) 5 Bom 262.
74 R. v. Shaw,
(1868) 18 LT 583 .
75 Srimati Anilabala v. Dhirendra Nath Chowdhury ,

(1921) 48 Cal 577 .
76 Murlidhar Pande v. Lachmi Pande ,

(1921) 43 All 459 .
77 Tawassul Husain v. Abrar Husain ,

(1927) 49 All 3 ; Muhammad Yakub v. Nazir Ahmed ,
(1921) 42 All 504 followed.
78 Muhammad Yakub v. Nazir Ahmad ,

(1921) 42 All 504 ; Muhammad Munwar Sultan v. Shamunessa Begum ,
(1923) 51 Cal 480 ; Saroj Basini Debi v. Mahendra Nath Bhadurji ,
(1927) 54 Cal 836 .
79 Cassim Mamooji v. KB Dutt ,

(1915) 19 CWN 45 .
80 XXVII of 1866.
Page 30 of 50
S. 7 (A).
81 Tarkeshwar Upadhya v. Mahesh Kahar ,

AIR 1981 Pat 348 (350, 351).
82 Habibur Rahman v. Rasheed Ahmed , 2000

AIHC 4076 (4079) : 2000 All LJ 1741 (All).
83 Karumanda Gounder v. Muthuswamy Gounder , AIR

1996 SC 1002 :
(1996) 1 SCC 720 [
LNIND 1996 SC 69 ].
84 Addison v. Dawson , (1711) 2 Vern. 678 : 23 ER 1040.
85 Longmate v. Ledger,
(1860) 2 LT 256 : 66 ER 67; Cassim Mamooji v. K.B. Dutt ,
(1915) 19 CWN 45 .
86 Samuel v. Robinson,
(1846) 7 LTOS 301 ; Frost v. Beaven , (1853) 22 LJ Ch. 638.
87 Baldwyn v. Smith , (1900) 1 Ch. 588.
88 Masihuddin v. Matu Ram , (1919) 1 Lah 109.
89 Annapurnabai v. Durgopa , (1896) 20 Bom 150.
90 Trimbaklal v. Hiralal , (1896) 20 Bom 659.
1 Ram Sunder v. Kali Narain ,

AIR 1927 Cal 889 .
2 Subba Naiker v. Solaippa , (1933) 56 Mad 904 ; In re Walker , (1905) 1 Ch. 160.
3 B.C. Mondal v. Indurekha Debi , AIR

1973 SC 782 (783, 784) :
(1973) 1 SCC 284 .
4 Nabakumar v. Fateh Singh ,

(1934) 61 Cal 986 ; Ex-parte Lyne , (1735) Talb. 142 : 25 ER 707; Exparte Clarke ,
(1822) Jac. 589 : 37 ER 975; Bradshaw v. Bradshaw , (1826) 1 Russ. 528 : 38 ER 203.
5 Mohori Bibee v. Dharamdas Gosh ,

(1903) 30 Cal 539 : 30 IA 114.
6
S. 54, Transfer of Property Act, 1882 .
Page 31 of 50
S. 7 (A).
7 Dattaram v. Vinayak , (1904) 28 Bom 131 ; Rang Ilahi v. Mahbub Ilahi , (1926) 7 Lah 35 ;
Muhammad Said v. Bishambhar Nath ,
(1923) 45 All 644 ; Limbaji v. Rahi , (1925) 49 Bom 576 ; Tejpal v. Ganga ,
(1903) 25 All 59 ; Khiam v. Dheru ,
AIR 1927 Lah 722 ; Hamidan v. Nanhe Lal ,
AIR 1933 All 372 ; Dyaviah v. Shivamma ,
AIR 1959 Mys 188 (199) (A sale transaction entered into by a minor is void).
8 Umar Din v. Abdul Haq ,

AIR 1934 Lah 304 .
9 Midnapore Zamindary Co., Ltd. v. Abdul Zalil Mia ,

(1933) 60 Cal 753 .
10 Great American Insurance Co., Ltd. v. Madanlal , (1935) 59 Bom 656.
11 Kamarajee v. Gunayya ,
AIR 1924 Mad 322 [
LNIND 1923 MAD 107 ]; Muthkumara Chetti v. Anthony Udayar , (1915) 38 Mad
867.
12 Bepanna v. Parachuri ,
AIR 1925 Mad 1288 [
LNIND 1925 MAD 100 ]; Sadhu Saran v. Sheo Prasad Kanu ,
AIR 1959 Pat 278 (DB) : (1959) 37 Pat 1078.
13 Mohanlal v. Ratan , (1921) 17 Nag 53 ; Hafizullah Khan v. Bulaqui Mal ,

AIR 1923 Lah 299 contra .
14 Gurushiddaswami v. Parawa , (1920) 44 Bom 175.
15 S. 28, Guardian and Wards Act, VIII of 1890.
16 S. 29, Guardian and Wards Act, VIII of 1890.
17 S. 30, Guardian and Wards Act, 1890; Solema Bibi v. Hafez Mahomed ,
(1927) 54 Cal 687 .
18 Shami Nath v. Lalji Chanbe ,

(1913) 35 All 150 .
19 Gharib-ullah v. Khalak Singh ,

(1903) 25 All 407 : 30 IA 165.
20 Jaiwanti Kumri v. Gajadhar Upadhya ,

(1911) 38 Cal 783 .
Page 32 of 50
S. 7 (A).
21 Omar Tyab v. Ismail Tyab ,

(1928) 30 Bom LR 177 .
22 Hanuman Persad v. Mussammat Babooee , (1856) 6 MIA 393 (mother); Nagindas v.

Mahomed , (1922) 46 Bom 312 (adult co-parcener); Jado Singh v. Nartha Singh ,
(1926) 48 All 592 (father); Pandharinath v. Ramchandra ,
(1931) 33 Bom LR 104 (mother); Seetharamanna v. Appiah , (1925) 49 Mad 768
(maternal uncle); Mohanund v. Nafur ,
(1899) 26 Cal 820 (paternal grandmother).
23 Hunoomanpersaud v. Babooee , (1856) 6 MIA 393.
24
(1924) 47 MLJ 686 [
LNIND 1924 MAD 207 ] (step-mother).
25 (1925) 49 Bom 576 (step-mother).
26 Mata Din v. Ahmad Ali ,

(1912) 34 All 213 : 39 IA 49; Fakiruddin v. Abdul Hussain , (1911) 35 Bom 217 ;
Imambandi v. Mutsaddi ,
(1918) 45 Cal 878 : 45 IA 73; Ayderman v. Syed Ali , (1914) 37 Mad 514 ; Sheikh
Rajab Ali v. Sheikh ,
(1916) 1 Pat LJ 188 ; Mohsiiddin Ahmed v. K. Ahmed ,
(1920) 47 Cal 713 ; Mohammad Ejaz Husain v. Mohammad Iftikhat Husain ,
(1912) 34 All 213 : 39 IA 49.
27 Sundara Nandan v. Annamalai,

(1931) 60 MLJ 695 [
LNIND 1931 MAD 10 ] ; Bangarammal v. Lydia Kent , (1934) 57 Mad 1062 (sale
held voidable).
28 Ranja Khan v. Ma Chit , AIR 1931 Rang 178.
29 Hemraj Dattubuva v. Nathu , (1935) 59 Bom 525 ; Jagat Narain v. Mathura Das ,
(1928) 50 All 969 FB, dissented from ; Ragho v. Zaga Ekoba , (1928) 53 Bom 419
discussed.
30 Harilal Ranchhod v. Gordhan Keshav , (1927) 51 Bom 1040 (separated uncle).
31 (1925) 49 Bom 576.
32 Tulsidas v. Raisinghji , (1933) 57 Bom 40.
33 Mata Din v. Ahmad Ali ,

(1912) 34 All 213 : 39 IA 49.
34 Gharib-ullah v. Khalak Singh ,

(1903) 25 All 407 : 30 IA 165.
Page 33 of 50
S. 7 (A).
35 In re Jairam Luxman , (1892) 16 Bom 634 ; In re Jagganath Ramji , (1895) 19 Bom 96 ;

In re Manilal Hargovan , (1901) 25 Bom 353 ; In re Hari Naraindas ,
(1923) 50 Cal 141 .
36 Sections 3 and 6, Guardian and Wards Act, VIII of 1890.
37 Raman Chettiar v. Tirugnanasambandam Pillai , (1927) 50 Mad 217 ; Gangapershad v.

Maharani Bibi ,
(1884) 11 Cal 379 followed ; Venkatasami v. Viranni , (1922) 45
Mad 429, dissented from ; Ramdeo Prasad v. Sheonandan Mahaseth , (1935) 14 Pat 410.
38 Raman Chettiar v. Tirugnanasambandam Pillai , (1927) 50 Mad 217 ; Budhoo v. Sheo

Charan , (1924) 22 All LJ 851 followed.
39 Ramdeo Prasad v. Sheonandan Mahaseth , (1935) 14 Pat 410 ; Ganga Prasad v.

Maharani Bibi ,
(1884) 11 Cal 379 , P.C.; Mahant Mahabir Das v. Jamuna Prasad , (1928) 8 Pat 48.
40 Kundan Lal v. Bhagwati Saran ,

(1935) 57 All 485 .
41 Dwijendra Mohan Sarma v. Manorama Dasi ,

(1922) 49 Cal 911 ; Dattaram v. Gangaram , (1896) 23 Bom 287 ; Sarju v. District
Judge of Benares ,
(1909) 31 All 378 .
42 Subhan Ali v. Chittu ,

AIR 1927 All 631 .
43 Maida v. Kishan ,
(1934) 56 All 997 .
44 Baliram Sahebrao Tidke v. Saheba,

2010 (2) Mah LJ 117 (127) (Bom).
45 Surendra Nath v. Atul Chandra ,

(1907) 34 Cal 892 ; Ranmalsinghji v. Vadilal , (1896) 20 Bom 61 ; Waghela v. Shekh
Masludin , (1887) 11 Bom 551.
46 Hari Satya v. Mahadev,

AIR 1983 Cal 76 [
LNIND 1982 CAL 108 ] (83); Narendra Nath v. Hrishikesh ,
AIR 1919 Cal 875 .
47 Mir Sarwarjan v. Fakhruddin Mahomed ,

(1912) 39 Cal 232 : 39 IA 1.
Page 34 of 50
S. 7 (A).
48 Mohori Bibee v. Dharamdas Ghose ,

(1903) 30 Cal 539 : 30 IA 114.
49 Navacoti v. Loyalinga , (1910) 33 Mad 312.
50 Munni Kunwar v. Madon Gopal ,

(1916) 38 All 62 ; Narain Das v. Musammat Dhania ,
(1916) 38 All 154 ; Muniya Konan v. Perumal Konan , (1904) 24 Mad LJ 352; Ulfat
Rai v. Gauri Shankar ,
(1911) 33 All 657 .
51 Raghava Chariar v. Srinivasa , (1917) 40 Mad 308.
52 Navacoti v. Loyalinga , (1910) 33 Mad 312.
53 Jay Kant Harkishen Das Shah v. Durga Shanker Valjee Pandya ,

AIR 1970 Guj 106 [
LNIND 1968 GUJ 65 ]: (1969) 11 Guj LR 178.
54 Jay Kant Harkishen Das Shah v. Durga Shanker Valjee

, Pandya
AIR 1970 Guj 106 [
LNIND 1968 GUJ 65 ]: (1969) 11 Guj LR 178 (The power of a guardian to take
property on lease in the name of the minor discussed in the light of earlier decision in
AIR 1943 Bom 187 and
AIR 1953 Bom 273 [
55 Brahmo Dutt v. Dharma Das Ghose ,

(1899) 26 Cal 381 .
56 Ganesh Lala v. Bapu , (1897) 21 Bom 198 ; Dadasaheb Dasrathrao v. Bai Nahani ,
(1917) 41 Bom 480.
57 Jagar Nath Singh v. Lalta Prasad ,

(1909) 31 All 21 ; Shiam Lal v. Ram Piari ,
(1910) 32 All 25 .
58 Surendra Nath Roy v. Krishna Sakshi Dasi ,

(1911) 15 CWN 239 .
59 Sadiq Ali v. Jai Kishore ,

(1928) 30 Bom LR 1346 PC.
60 Gadigoppa v. Balangowda , (1931) 55 Bom 741.
61 Ganesh Lala v. Bapu , (1895) 21 Bom 198 ; Dadasaheb v. Bai Nahani , (1917) 41 Bom
480 ; Jasraj v. Sadashiv , (1921) 46 Bom 137.
Page 35 of 50
S. 7 (A).
62 Vaikuntarama v. Authimoolam , (1914) 38 Mad 1071.
63 Gangabai v. Sonabai ,
(1915) 17 Bom LR 303 [
LNIND 1914 BOM 163 ].
64 Noshirwan v. Sharoshbanu , (1934) 58 Bom 724.
65 Noshirwan v. Sharoshbanu , (1934) 58 Bom 724 ; Dayabhai v. Parvati , (1915) 39 Bom

438.
66 Beni Prasad v. Parbati ,

(1934) 56 All 20 .
67 Narotam v. Tapesra ,
(1935) 57 All 208 .
68 Venkatachalam v. Sethuram Rao , (1933) 56 Mad 433.
69 WILLIAMS on Real Property , 24th Ed., pp. 293-294.
70 In re Butler’s Trust , (1888) 38 Ch. D. 286.
71 Thomason v. Frere , (1809) 10 East 418 : 103 ER 834; Morgan v. Marquis , (1853) 9 Ex.
145, 156 ER 62.
73 (1866) 11 MIA 75.
74 In the matter of the petition of Mussamat, Phuljhari Koer, (1872) 8 Beng LR 385.
75 On Vendors and Purchasers, 7th Ed., p. 573.
76
Specific Relief Act , I of 1887, Section 27 (c).
77 Bradshaw v. Toulmin , (1784) 2 Dick 633 : 21 ER 417.
79 Napier v. Williams , (1911) 1 Ch. 361; Cooper v. Fletcher , (1865) 6 B&S 464 : 122 ER
1267.
Page 36 of 50
S. 7 (A).
80 Law Guarantee and Trust Society v. Governor and Company of Bank of England,
(1890) 24 QBD 406 ; see In re Thompson’s Settlement Trusts, Thompson v.
Alexander, (1905) 1 Ch. 229.
81 Huseinbhai v. The Advocate General of Bombay ,

(1920) 22 Bom LR 846 [
LNIND 1920 BOM 44 ] (deed); Abdul Rajak v. Jai Jimbabai ,
(1912) 14 Bom LR 295 [
LNIND 1911 BOM 163 ] (deed); Janjira v. Mahammad Fakirulla ,
(1922) 49 Cal 477 (deed); Ma E. Khin v. Maung Sein , AIR 1925 Rang 71 (oral
declaration).
82 Muhammad Shafi v. Muhammad Abdul Aziz ,

(1927) 49 All 391 ; Muhammad Yunus v. Muhammas Ishaq ,
(1921) 43 All 391 ; Muhammad v. The Legal Remembrancer ,
(1893) 15 All 321 .
84 Abdul Khader v. Chidambaram , (1909) 32 Mad 276 ; Abdul Majeeth Khan v.

Krishnamachariar , (1917) 40 Mad 243 ; Rajeswar Prosad v. Anil Komar ,
(1928) 55 Cal 35 .
85 Rajeswar Prosad v. Anil Komar ,

(1928) 55 Cal 35 .
86 Harrison v. Barton , (1869) 30 LJ Ch. 213.
87 Robinson v. Preston , (1858) 27 LJ Ch. 395.
88 In re Jackson, Smith v. Sibthorpe , (1887) 34 Ch. D. 732.
89 Lake v. Braddock , (1732) 3 P. Wms. 158 : 24 ER 1011; Stuart v. Blakeway , (1869) 4

Ch. 603; Re. Hulton, Hulton v. Lister,
(1890) 62 LT 200 .
90 Kennedy v. De Trafford,
(1897) AC 180 .
91 Deen Dayal v. Judgdeep Narain ,

(1876) 3 Cal 198 : 4 IA 247; Suraj Bansi Koer v. Sjeoprasad Singh ,
(1878) 5 Cal 148 : 6 IA 88; Hardi Narain Sahu v. Ruder Perkash ,
(1883) 10 Cal 626 : 11 IA 26; Manjaya v. Shanmuga , (1915) 38 Mad 684 ; Pandu
v. Goma , (1919) 43 Bom 472.
92 Pandoo Vithoji v. Goma Ramji , (1919) 43 Bom 472 ; Pandurang v. Bhagwandas , (1920)
44 Bom 341 ; Lakshman v. Ram Chandra , (1880) 5 Bom 48 : 7 IA 181.
Page 37 of 50
S. 7 (A).
93 Vadivelam v. Natesam , (1914) 37 Mad 435 ; Marappa Goundan v. Rangasami Goundan

, (1900) 23 Mad 89 ; Subba v. Venkatrami , (1915) 38 Mad 1187 ; J. Rajacharlu v. J.V. Venkataramaniah , (1869) 4
Mad HCR. 60; Palanivelappa Kaundan v. Mannaru Naikar ,
(1865) 2 Mad HCR 416 ; Peddamthulaty v. N. Timma Reddy ,
(1865) 2 Mad HCR 270 ; Nanjunda v. Kanagaraju , (1919) 42 Mad 154.
94 Mahdho Parshad v. Mehrban Singh ,

(1891) 18 Cal 157 : 17 IA 194; Sadabart Prasad v. Foolhart Koer , (1869) 3 Beng
LR 31.
95 Balgobind Das v. Narain Lal ,

(1893) 15 All 339 : 20 IA 116; Chandra Kishore v. Dampat Kishore ,
(1894) 16 All 369 ; Rama Nand Singh v. Govind Singh ,
(1883) 5 All 384 .
96 Kali Shankar v. Nawab Singh ,

(1909) 31 All 508 ; Chandradeo v. Mata Prasad ,
(1909) 31 All 176 ; see also Muhammad Muzmilullah Khan v. Mithu Lal ,
(1911) 33 All 783 ; Mahraj Singh v. Sarup Kuar ,
(1886) 8 All 205 ; Bhagirathi Misr v. Sheobhik ,
(1898) 20 All 325 .
97 Syed Kasam v. Jorawar Singh ,

(1923) 50 Cal 84 : 49 IA 358.
98 Bhojraj v. Nathuram , (1917) 12 Nag LR 161; Hiraram v. Uderam , (1914) 9 Nag LR 74;
Nathu v. Gulabchand , AIR 1934 Nag LR 13.
1 Suraj Prasad v. Makhan Lal ,

(1922) 44 All 382 ; Partab Singh v. Bohra Nathu ,
(1923) 45 All 49 ; Lal Bahadur v. Ambika Prasad ,
(1925) 47 All 795 : 52 IA 443; Hitendra v. Sakhdeb , (1929) 8 Pat 558 ; Bholanath v.
Kartick Kissen ,
(1907) 34 Cal 372 .
2 Kalu v. Barsu , (1895) 19 Bom 803 ; Vrandavandas v. Yamunabai , (1875) 12 Bom HC

229; Gangubdi v. Ramanna , (1863) 3 Bom HC 66; Rottala v. Pulicat , (1904) 27 Mad 162 (166); Ponnusami v. Thata ,
(1886) 9 Mad 273.
3 Tagore v. Tagore , (1872) 9 Beng LR 377 (396).
4 Section 22.
5 Muninjappa v. R. Manual , AIR

2001 SC 1754 :
(2001) 5 SCC 363 [
LNIND 2001 SC 940 ].
6 Sardar Singh v. Kunj Bihar Lal ,

(1922) 44 All 503 (511) : 49 IA 383 (391); Raj Lukhee Dabea v. Gokool Chunder
Chowdry , (1869) 13 MIA 209 ; Collector of Masulipatam v. Cavaly Vencata , (1861) 8 MIA 529 ; Rama v. Ranga ,
(1885) 8 Mad 552 ; Vuppuluri Tatayya v. Garimilla Ramakrishnamma , (1910) 34 Mad 288 ; Khub Lal Singh v. Ajodhya
Page 38 of 50
S. 7 (A).
Misser ,
(1915) 43 Cal 574 .
7 Ashutosh Sikdar v. Chidam Mandal ,

(1930) 57 Cal 904 ; Tulshi Prasad v. Jahmohan Lal ,
(1935) 57 All 422 ; Udai Chunder v. Ashutosh Das ,
(1893) 21 Cal 190 ; Tarini Prasad v. Bhola Nath ,
(1891) 21 Cal 190 .
8 Bhagwat v. Nivratti , (1915) 39 Bom 113.
9 Bhawani v. Himmat ,
(1911) 33 All 342 P.C.
10 Darbari Lal v. Gobind Saran ,

(1924) 46 All 822 .
11 Bai Chanchal v. Chimanlal ,

(1928) 30 Bom LR 685 ; Ganpat v. Tulsiram , (1912) 36 Bom 88.
12 Muteeram v. Gopal , (1873) 11 Beng LR 416; Collector of Masulipatam v. Cavaly

Vencata , (1861) 8 MIA 529.
13 Hari Kissen v. Bagrang Sopai ,

(1909) 13 CWN 544 .
14 Khub Lal v. Ajodhya ,

(1916) 43 Cal 574 ; Ram Surat v. Hitanandan , (1931) 10 Pat 474.
15 Indar Bux v. Sheo Naresh ,

(1927) 2 Luck 713 .
16 Bai Chanchal v. Chimanlal ,

(1928) 30 Bom LR 685 ; Tatyya v. Ramakrishnamma , (1910) 34 Mad 288.
17 Sardar Singh v. Kunj Bihari Lal ,

(1922) 44 All 503 .
18 Baldeo Prasad v. Fateh Singh ,

(1924) 46 All 533 .
19 Madan Mohan v. Rakhalchandra ,

(1930) 57 Cal 570 .
20
(1918) 40 All 619 .
Page 39 of 50
S. 7 (A).
21
(1921) 43 All 515 .
22 Sardar Singh v. Kunj Bihari Lal ,

(1922) 44 All 503 (511) : 49 IA 383 (391).
23 (1926) 5 Pat 646.
24 Collector of Masulipatam v. Cavaly Vencata , (1861) 8 MIA 529 ; Ram Surat v.

Hitanandan , (1931) 10 Pat 474.
25 Ramabai v. Dattatraya ,
(1931) 33 Bom LR 1244 (confirmed on second appeal and also under Letters
Patent Appeal). See last lines of the same report.
26
(1928) 30 Bom LR 685 .
27 Bhagirathibai v. Khanujirav , (1887) 11 Bom 285 (297).
28 Pandarinath v. Govind , (1908) 32 Bom 59 ; Durga Nath v. Chintamoni ,

(1904) 31 Cal 214 ; Buchi v. Jagapathi , (1885) 8 Mad 304 ; Bhugwandeen v. Myna
Baee , (1867) 11 MIA 487.
29 Sarat Chandra v. Charusile ,

(1928) 55 Cal 918 ; Tirath Ram v. Kahan Devi , (1920) 1 Lah 588 ; Jagdeo Singh v.
Raja Kuer , (1927) 6 Pat 788 ; Thakoor Deyhee v. Rai Baluk Ram , (1866) 11 MIA 139 ; Gadadhar Bhat v.
Chandrabhagabai , (1892) 17 Bom 690.
30 Chamanlal v. Bai Parvati , (1934) 58 Bom 246.
31 Rangasami Gounden v. Nachiappa Gounden , (1919) 42 Mad 523.
32 Annada Kumar v. Indra Bhusan ,

(1907) 12 CWN 49 ; Hem Chander v. Sarnamoyi ,
(1894) 22 Cal 354 ; Nobokishore v. Harinath ,
(1880) 10 Cal 1102 ; Pulin Chandra v. Bolai Mandal ,
(1908) 35 Cal 939 ; Debi Prasad v. Gholap Bhagat ,
(1913) 40 Cal 721 ; Tangasami Goundan v. Nachiappa Goundan , (1919) 42 Mad
523 : 46 IA 72; Mahomed Said v. Kunwar darshan ,
(1928) 50 All 75 ; Darbari Lal v. Gobind Saran ,
(1924) 46 All 822 ; Bhup Singh v. Jhamman Singh ,
(1922) 44 All 95 ; Ghisiawan v. Raj Kumari ,
(1921) 43 All 534 ; Bajrangi Singh v. Manokarnika ,
(1908) 30 All 1 : 35 IA 1; Moti v. Laldas , (1917) 41 Bom 93 ; Ramakrishna v.
Tripurabai ,
(1911) 13 Bom LR 940 [
LNIND 1911 BOM 73 ]; Pilu v. Babaji , (1910) 34 Bom 165 ; Vinayak v. Govind ,
(1901) 25 Bom 129.
Page 40 of 50
S. 7 (A).
33 Pilu v. Babaji , (1910) 34 Bom 165 ; Bajrangi Singh v. Manokarnika ,

(1907) 30 All 1 35 IA 1; Vinayak v. Govind , (1900) 25 Bom 129 ; Harihar v.
Udainath ,
(1923) 45 All 260 ; Bindeshwari v. Harnarain Singh ,
(1929) 4 Luck 622 .
34 Santi Kumar Pal v. Mukunda Lal Mandal ,

(1934) 39 CWN 226 .

(1934) 39 CWN 226 .
36 Rangasami Goundan v. Nachiappa Goundan , (1919) 42 Mad 523 : 46 IA 72; Rup Narain
v. Gopal Devi ,
(1909) 36 Cal 780 : 36 IA 103; Fateh Singh v. Thakur Rukmini ,
(1923) 45 All 339 ; Babu Singh v. Rameshwar ,
(1932) 7 Luck 360 ; Baburao v. Tukaram ,
(1931) 33 Bom LR 235 ; Akkawa v. Sayad Khan , (1927) 51 Bom 475 ; Ramgaunda
v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396; Basappa v. Fakirappa , (1922) 46 Bom 292 ; Jai Narain v. Munna Lal ,
(1927) 50 All 489 .

(1923) 45 All 339 ; Akkawa v. Sayad Khan , (1927) 51 Bom 475 ; Basappa v.
Fakirappa , (1922) 46 Bom 292 ; Babu Singh v. Rameshwar ,
(1932) 7 Luck 360 .
38 Dayamani Debi v. Srinibash Kundu ,

(1906) 33 Cal 842 ; Hunooman Persaud v. Mussamat Babooee , (1856) 6 MIA 393 ;
Kameswar Pershad v. Run Bahadur Singh ,
(1881) 6 Cal 843 .
39 Ganap v. Subbi , (1908) 32 Bom 577 ; Ramsumran Prasad v. Shyam Kumari , (1922) 1
Pat 741 : 49 IA 342.
40 Dhanji v. Dhuma ,
(1924) 26 Bom LR 277 [
LNIND 1924 BOM 5 ]; Chidambaramma v. Husainamma , (1916) 39 Mad 565 ;
Gowardhandas v. Vira Mal , (1920) 1 Lah 48.
41 Ramgouda v. Bhausaheb , (1927) 52 Bom 1 : 54 IA 396; Kondama Naicker v.

Kandasamy Goundar , (1924) 47 Mad 181 : 51 IA 145.
42 Ramgouda v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396.
43 Sadashiv v. Dhakoobai , (1881) 5 Bom 450 ; Dharbari Lal v. Gobind Saran ,

(1924) 46 All 822 ; Baijnath v. Mangla , (1926) 5 Pat 350.
44 Venkatasubba Rao v. Ananda Rao , (1934) 57 Mad 772.
45 Baijnath v. Mangla , (1926) 5 Pat 350.

Page 41 of 50
S. 7 (A).
46 Makhan v. Gayan ,
(1911) 33 All 255 ; Bhagavati v. Ram Jatan ,
(1923) 45 All 297 ; Mahadev Prasad v. Dhanraj ,
(1926) 1 Luck 477 .
47 Ramkumar v. Ichamoyi ,
(1880) 6 Cal 36 .
48 Ganpat v. Tulsiram , (1912) 36 Bom 88.
49 Udai Dat v. Ambika Prasad ,

(1927) 2 Luck 412 ; Jowala Ram v. Hari Kishen ,
AIR 1924 Lah 429 .
50 Jowala Ram v. Hari Kishen ,

AIR 1924 Lah 429 ; Churaman Sahu v. Gopi Sahu ,
(1909) 37 Cal 1 .
51 Ramasami Ayyar v. Vengidusami Ayyar, (1899) 22 Mad 113.
52 Srimohan v. Brijbehary ,
(1909) 36 Cal 753 ; Raj Chandra v. Sheeshoo Ram , (1867) 7 W.R. 146.
53 Srimohan v. Brijbehary ,
(1909) 36 Cal 753 ; Shekaat Hosain v. Sasi Kar ,
(1892) 19 Cal 783 ; Mahanund v. Banimadhub ,
(1896) 24 Cal 27 ; Rupram v. Iswar ,
(1902) 6 CWN 302 .
54 Debi Dayal v. Bhau Pertap ,

(1904) 31 Cal 433 .
55 Rajeshar v. Har Kishen ,

(1933) 8 Luck 538 .
56 Ragho v. Zaga Ekoba , (1929) 53 Bom 419 ; Nagindas v. Mahomed Yusuf , (1922) 46
Bom 312 ; Jagat Narain v. Mathura Das ,
(1928) 50 All 969 ; Inspector Singh v. Kharak Singh ,
(1928) 50 All 776 ; Rattan Chand v. Sri Thakur Ram ,
(1928) 26 ALJ 777 ; Jado Singh v. Nathu Singh ,
(1926) 48 All 592 ; Shankar Sahai v. Bechu Ram ,
(1925) 47 All 381 ; Mahabir Prasad v. Awla Prasad ,
(1924) 46 All 364 ; Bhagwan Das v. Mahdeo Prasad ,
(1923) 45 All 390 ; Tula Ram v. Tulshi Ram ,
(1920) 42 All 559 .
57 Ramgowda v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396; Thakur Prasad v. Dipa Kuer ,

(1931) 10 Pat 352 ; Har Mitra v. Raghubar ,
(1928) 3 Luck 645 ; Banga Chandra v. Jagat Kishore ,
(1916) 44 Cal 186 : 43 IA 249; Raja Lukhee v. Gokul Chunder , (1869) 13 MIA 209 ;
Page 42 of 50
S. 7 (A).
Hari Kishen v. Kashi Prasad ,

(1914) 42 Cal 876 : 42 IA 64.
58 Ramgowda v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396.
59 Kondama Naicker v. Kondasami Gounden , (1924) 47 Mad 181 : 51 IA 145.
60 Ramgowda v. Bhausaheb , (1928) 52 Bom 1 : 54 IA 396.
61 Bhojraj v. Sitaram ,
(1936) 40 CWN 257 PC.
62 Kondama Naicker v. Kandasami Goundan , (1924) 47 Mad 181 : 51 IA 145; Bijoy Gopal
v. Kishna Mahishi ,
(1907) 34 Cal 329 : 34 IA 87.
63 Akkawa v. Sayad Khan , (1927) 51 Bom 475.
64 Vinayak v. Gobind , (1901) 25 Bom 129 ; Varjivan v. Ghelji , (1881) 5 Bom 563 ; Pilu v.
Babaji , (1909) 34 Bom 165.
65 Sm. Annamoyi v. Umesh Chandra ,

(1936) 40 CWN 339 .
66 Hurry Mohun v. Ganesh Chunder,

(1884) 10 Cal 823 ; Ramcoomar Mitter v. Ichamoyi Dasi,
(1880) 6 Cal 36 .
67 Dhondo v. Mishrilal ,
(1936) 38 Bom LR 6 .
68 Bhagwantrao v. Ramnath , (1928) 52 Bom 542 ; Gadgappa Desai v. Apaji Jivanrao ,

(1879) 3 Bom 237.
69 Kallu v. Faiyaz Ali Khan ,

(1908) 30 All 394 ; Dhiraj Singh v. Manga Ram ,
(1897) 19 All 300 .
70 Ramasami v. Sellattammal , (1881) 4 Mad 375.
71 Gauri Nath v. Gaya Kuar ,

(1928) 55 IA 399 ; Gajapati v. Pusapati , (1892) 16 Mad 1 : 19 IA 184.
72 Dulhin Parbati Kuer v. Baijnath Prasad , (1935) 15 Pat 518.

Page 43 of 50
S. 7 (A).
73 Kalliyansundaram Pillai v. Subba Moopanar , (1904) 14 Mad LJ 139; Jai Narain Singh v.
Muna Lal ,
(1928) 50 All 489 .
74 Valluru Appalasuri v. Sasapu Kanndmma , (1925) 49 Mad LJ 479.
75 Gauri Nath v. Gaya Kuar ,

(1928) 55 IA 399 .
76 In re Dattatraya Govind Haldankar ,

(1932) 34 Bom LR 1156 .
77 Mahadeo Krishna Rupji, in re ,

(1936) 38 Bom LR 1286 .
78 Ram Krishna v. Sm. Kousalaya ,

(1935) 40 CWN 208 .
79 Dulhin v. Baijnath , (1935) 14 Pat 518.
80 Behari Lal v. Madho Lal ,

(1892) 19 Cal 236 : 19 IA 30; Raj Kishore v. Durga Charan ,
(1906) 28 All 71 .
81 Maru v. Hanso ,
(1926) 48 All 485 .
82 Rangasami Goundan v. Nachiappa Goundan , (1919) 42 Mad 523 : 46 IA 72; Shanti

Kumar Pal v. Mukundalal Mandal ,
(1935) 62 Cal 204 ; Bhagwat Koer v. Dhanukhdhari ,
(1919) 47 Cal 466 : 46 IA 259; Sureshwar Misser v. Maheshrani ,
(1920) 48 Cal 100 : 47 IA 233; Thakur Prasad v. Dipa Kuer , (1931) 10 Pat 352 ;
Santi Kumar Pal v. Mukunda Lal Mandal ,
(1934) 39 CWN 226 ; Moti v. Lal Das , (1917) 41 Bom 92.
83 Subbalakshmi v. Narayana , (1935) 58 Mad 150 ; Challa v. Subbiah Palury , (1908) 31

Mad 446.

(1934) 39 CWN 226 ; Rangappa v. Kamti Naik , (1908) 31 Mad 366 ; Naru Hari v.
Tai Kom Devji , (1923) 47 Bom 431 ; Sakharam v. Thama , (1927) 51 Bom 1019 ; Sartaji v. Ramjas ,
(1923) 46 All 59 .
85 Per WALLIS, J., in Rangappa v. Kamti Naik , (1908) 31 Mad 355 ; see Naru Hari v. Tai , (1923) 47 Bom
431.
86 Naru Hari v. Tai Kom Devji , (1923) 47 Bom 431.

Page 44 of 50
S. 7 (A).
87 Bhupal Ram v. Lachma Kuar ,

(1888) 11 All 253 ; Rup Ram v. Musammat Rewati ,
(1909) 32 All 582 ; Sitanna v. Viranna , (1934) 57 Mad 749 ; Sartaji v. Ramjas ,
(1923) 46 All 59 .
88 Challa Subbiah v. Palury , (1908) 31 Mad 447.
89 Hem Chunder v. Sarnamoyi Debi ,

(1894) 22 Cal 354 .
90 (1918) 42 Mad 523 : 46 IA 72.
91
(1919) 47 Cal 466 : 46 IA 259.
92
(1920) 48 Cal 100 : 47 IA 233.
93 Gangadhar v. Parbhudha , (1932) 56 Bom 410.
94 Rama Nana v. Dhondi , (1923) 47 Bom 678.
95 (1926) 5 Pat 290 : 53 IA 11.
1 Chengappa v. Buradagunta , (1920) 43 Mad 855.
2 Ram Krishna v. Sm. Kousalaya ,

(1935) 40 CWN 208 ; Prafulla v. Bhabani ,
(1925) 52 Cal 1018 .
3 (1856) 6 MIA 393.
4 Sri Kishan Das v. Nathu Ram ,

(1927) 49 All 149 : 54 IA 79.
5 Suraj Bunsi Koer v. Sheo Persad Singh ,

(1878) 5 Cal 148 : 6 IA 88.
6 Mudit Narayan Singh v. Ranglal Singh ,

(1902) 29 Cal 797 .
7 Sham Sunder v. Achan Kunwar ,

(1899) 21 All 71 : 25 IA 183; Gharibullah v. Khalak Singh ,
(1903) 25 All 407 : 30 IA 165; Lal Bahdur Lal v. Kamleshwar Nath ,
(1926) 48 All 183 ; Ganap v. Subbi , (1908) 32 Bom 577 ; Biswanath v. Jagdip ,
(1913) 40 Cal 342 .
Page 45 of 50
S. 7 (A).
8 Jagmohan v. Prag Ahir ,

(1925) 47 All 452 ; Jado Singh v. Nathu Singh ,
(1926) 48 All 592 ; Nagindas Maneklal v. Mahomed Yusuf , (1922) 46 Bom 312.
9 Hunooman Persaud v. Musammat Babooee, (1856) 6 MIA 393.
10 Sri Kishan Das v. Nathu Ram ,

(1927) 49 All 149 : 54 IA 79.
11 Suraj Bunsi Koer v. Sheo Persad Singh ,

(1878) 5 Cal 148 : 6 IA 88.
12 Suraj Bunsi Koer v. Sheo Pershad Singh ,

(1878) 5 Cal 148 : 6 IA 88; Lachmi Narain v. Kunji Lal ,
(1894) 16 All 449 : 6 IA 88; Madho Pershad v. Mehrban Singh ,
(1891) 18 Cal 157 : 17 IA 194; Bittal Das v. Nand Kishore ,
(1901) 23 All 106 ; Faquir Chand v. Sant Lal ,
(1926) 48 All 4 .
13 Suraj Bunsi Koer v. Sheo Pershad Singh ,

(1878) 5 Cal 148 : 6 IA 88; Madho Prasad v. Mehrban Singh ,
(1891) 18 Cal 157 : 17 IA 194.
14 Nagindas v. Manecklal v. Mahomed Yusuf , (1922) 46 Bom 312.
15 Lal Bahadur Lal v. Kamleshwar Nath ,

(1926) 48 All 183 .
16 Sahu Ram Chandra v. Bhup Singh ,

(1917) 39 All 427 : 44 IA 126.
17 Brij Narain v. Mangal Prasad ,

(1924) 46 All 95 : 51 IA 129; Sahu Ram Chandra v. Bhup Singh ,
(1917) 39 All 437 : 44 IA 126 explained and observations therein not followed;
Armugham Chetty v. Muthu Kundan , (1919) 42 Mad 711 as to "antecedent debt" approved; Badri Prasad v. Madan Lal
,
(1893) 15 All 75 ; Govind Krishna Gujar v. Sakharam Narayan , (1894) 18 Bom 383
; Ramasami Nadan v. Ulaganatha Goundan , (1899) 22 Mad 49, as to the pious obligation upon sons during their
father’s lifetime, approved.
18 Hanuman Persad v. Musammat Babooee , (1856) 6 MIA 393 ; Doulatram v. Meherchand

,
(1888) 15 Cal 70 : 14 IA 187; Shamsunder v. Achhan Kunwar ,
(1899) 21 All 71 : 25 IA 183; Gharibullah v. Kalak Singh ,
(1903) 25 All 407 : 30 IA 165; Biswanath v. Jagdip ,
(1913) 40 Cal 342 .
19 Muddun Thakoor v. Kantoo Lall , (1874) 14 Beng LR 187 : 1 IA 333; Suraj Bunsi Keer v.
Sheo Pershad Singh ,
(1878) 5 Cal 148 : 6 IA 88; Nanomi Babuasin v. Modhun Mohun ,
Page 46 of 50
S. 7 (A).
(1886) 13 Cal 21 : 13 IA 1; Masit Ullah v. Danodhar Prasad ,

(1926) 48 All 518 : 53 IA 204; Chet Ram v. Ram Singh ,
(1922) 44 All 368 : 49 IA 228, deemed to be overruled.
20 Baghut Pershed Singh v. Girja Koer ,

(1888) 15 Cal 717 : 15 IA 99; Chintamanrav v. Kasinath , (1890) 14 Bom 320 ;
Vasudev v. Krishnaji , (1896) 20 Bom 534 ; Dhullipallia v. Kuppa Venkatakrishnayya,
(1919) 36 MLJ 296 [
LNIND 1919 MAD 14 ] ; Babu Singh v. Bihari Lal ,
(1908) 30 All 156 ; Debi Dat v. Jodu Rai ,
(1902) 24 All 459 ; Karan Singh v. Bhub Singh ,
(1905) 27 All 16 ; Maharaj Singh v. Balwant Singh ,
(1906) 28 All 508 ; Tulshi Ram v. Bishnath Prasad ,
(1928) 50 All 1 ; Chandradeo v. Mata Prasad ,
(1909) 31 All 176 .
21 Jogi Das v. Gangaram ,

(1917) 21 CWN 857 ; Narain Prasad v. Sarnamsingh ,
(1917) 39 All 500 : 44 IA 163; Sahu Ram v. Bhup Singh ,
(1917) 39 All 437 : 44 IA 126; Chetram v. Ram Singh ,
(1922) 44 All 368 : 49 IA 228; Ram Reka Singh v. Ganga Prasad ,
(1927) 49 All 123 .
22 Venkataramanaya v. Venkatramana Doss , (1906) 29 Mad 200 ; Chidambara v.

Koothaperumal , (1904) 27 Mad 326, dissented from ; Sami Ayyangar v. Ponnammal , (1898) 21 Mad 28, approved;
Khalilul Rahman v. Govind Persad ,
(1893) 20 Cal 328 ; Chandradeo v. Mata Prasad ,
(1909) 31 All 176 ; Armugham Chetty v. Muthu Koundan , (1919) 42 Mad 711 ;
Badagala Jogi v. Bendalam Papiah,
(1918) 35 MLJ 382 [
LNIND 1918 MAD 76 ], overruled.
23 Govind v. Sakharam , (1904) 28 Bom 383.
24 Girdharee Lall v. Kantoo Lall , (1874) 14 Beng LR 187 : 1 IA 321; Deendyal Lal v.
Jugdeep Narain Singh ,
(1877) 3 Cal 198 : 4 IA 247; Nanomi Babuasin v. Modhun Mohun ,
(1886) 13 Cal 21 : 13 IA 1; Bhagbut Pershad v. Girja Koer ,
(1888) 15 Cal 717 : 15 IA 99; Minakshi Nayudu v. Immudi Kanaka Ramaya
Gounden , (1889) 12 Mad 142 : 16 IA 1; Mahabir Pershad v. Moheswar Nath Sahai ,
(1894) 17 Cal 584 : 17 IA 11; Sripat Singh v. Tagore ,
(1917) 44 Cal 524 : 44 IA 1.
25 Thandavaroya v. Shunmugam , (1909) 32 Mad 162.
26 Sham Sunder Lal v. Achan Kunwar ,

(1899) 21 All 71 : 25 IA 183.
27 Marappa Goundan v. Rangasami Goundan , (1900) 23 Mad 89.
28 Madho Pershad v. Mahrban Singh ,

(1891) 18 Cal 157 : 17 IA 194; Balgobind Das v. Narain Lal ,
(1893) 15 All 339 : 20 IA 116; Ram Sahai v. Parbhu Dayal ,
(1921) 43 All 655 ; Daya Ram v. Harcharan Das ,
AIR 1928 Lah 111 ; Kali Shankar v. Nawab Singh ,
Page 47 of 50
S. 7 (A).
(1909) 31 All 507 ; Chandradeo Singh v. Mata Prasad ,

(1909) 31 All 176 .
29 Jagesar v. Deo Dat Pande ,

(1923) 45 All 654 ; Subba Goundan v. Krishnamachari , (1922) 45 Mad 449 ;
Sankara v. Ummer , (1923) 46 Mad 40.
30 Lal Bahadur v. Ambika Prasad ,

(1925) 47 All 795 : 52 IA 443; Bholanath v. Kartick Kirsen Das ,
(1907) 34 Cal 372 ; Naro Gopal v. Paragowda ,
(1917) 19 Bom LR 69 [
LNIND 1916 BOM 144 ].
31 Narayanan Chetty v. Muthiah Chetty , (1924) 47 Mad 692.
32 Venkateswara v. Raman , 3 L.W. 435.
33 Narain Prasad v. Sarnam Singh ,

(1917) 39 All 500 : 44 IA 163; Madho Parshad v. Meherban Singh ,
(1891) 18 Cal 157 : 17 IA 194.
34 Palani v. Masakonan , (1897) 20 Mad 243.
35 Chinnu Pillai v. Kalimuthu , (1912) 35 Mad 47.
36 Tiurupurasundari v. Kalyanaraman,
AIR 1973 Mad 99 [
LNIND 1972 MAD 24 ] (104) : (1972) 2 Mad LJ 283.
37 Tiurupurasundari v. Kalyanaraman ,
AIR 1973 Mad 99 [
LNIND 1972 MAD 24 ] (104) : 85 Mad LW 684.
38 Tiurupurasundari v. Kalyanaraman ,
AIR 1973 Mad 99 [
LNIND 1972 MAD 24 ] (104) : (1972) 2 Mad LJ 283.
39
(1911) 39 Cal 232 : 39 IA 1.
40 Dhapo v. Ramchandra ,
(1935) 57 All 374 .
41
(1879) 5 Cal 148 : 6 IA 88.
Page 48 of 50
S. 7 (A).
42 Jahan Singh v. Hardat Singh ,

(1935) 57 All 357 ; Gajadhar Pande v. Jadubir Pande ,
(1924) 47 All 122 .
43 Muthulakshmi v. State of Tamil Nadu , 2005

AIHC 2774 (2775) : 2005 (2) LACC 611 (Mad).
44 Sunitabala Debi v. Dhara Sundari ,

(1920) 47 Cal 175 P.C.; Sumsuddin v. Abdul Husein , (1907) 31 Bom 165 ; Sudisht
Lal v. Sheobarat Koer ,
(1881) 7 Cal 245 : 8 IA 39; Shambati Koeri v. Jago Bibi ,
(1902) 29 Cal 749 .
45 Mushrafi Begum v. Kundan Lal ,

AIR 1933 Oudh 365 .
46 Farid-un-nissa v. Mukhtar Ahmad ,

(1925) 47 All 703 : 52 IA 342; Laxmi Narain v. Mohmdi Begam ,
(1932) 7 Luck 454 .
47 Shaik Ismail v. Amirbibi ,

(1902) 4 Bom LR 146 ; Ismail Mussajee v. Hafiz Boo ,
(1906) 33 Cal 773 .
48
(1925) 47 All 703 : 52 IA 342.
49 Lala Kalyan Mal v. Ahmad Uddin Khan ,

(1934) 36 Bom LR 981 .
50 Bholanath v. Mrityunjoy, (1934) 59 CLJ 532.
51 Mahant Ganeshgir v. Fatehchand Bani , (1935) 31 Nag 282 ; Vidya Varuthi v. Balusami
Ayyar , (1921) 44 Mad 831 : 48 IA 302; Ram Parkash v. Anand Das ,
(1916) 43 Cal 707 : 43 IA 71; Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami ,
(1903) 27 Mad 435 ; Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiram , (1886) 10 Mad 375 ;
Samnantha Pandara v. Sellappa Chetti , (1879) 2 Mad 175.
52 Ram Parkash v. Anand Das ,

(1916) 43 Cal 707 : 43 IA 73; Gobinda v. Mohunt Ram, (1935) 62 CLJ 153.
53 Mahant Ganeshgir v. Fatechand Bani , (1935) 31 Nag 282.
54 Palaniappa v. Sreemath Devasikamony , (1917) 40 Mad 709 : 44 IA 147; Abhiram

Goswami v. Shyami Charan ,
(1909) 36 Cal 1003 ; Prosunno Kumari v. Golab Chand , (1875) 14 Beng LR 450 : 2
IA 145; Shiessouree Debia v. Mothooranath , (1869) 13 MIA 270 (275); Sri Chidambara v. Manickam Pillai,
(1933) 64 MLJ 577 [
Page 49 of 50
S. 7 (A).
55 Venkataraman v. Sivagurunatha ,
AIR 1933 Mad 639 [
LNIND 1932 MAD 2 ].
56 Venkataraman v. Sivagurunatha ,
AIR 1933 Mad 639 [
LNIND 1932 MAD 2 ].
57 Surendrakrishna v. Shree Shree Ishwar ,

(1933) 60 Cal 54 ; Periyanan v. Govind Rao,
(1931) 62 MLJ 496 ; Damodar Das v. Lakhan Das ,
(1910) 37 Cal 885 : 37 IA 147.
58 Mahant Kesho Das v. Amar Dasji , (1935) 14 Pat 379 ; Ram Parkash Das v. Anand Das ,
(1916) 43 Cal 707 : 43 IA 73; Vidya Varuthi v. Balusami Ayyar , (1921) 44 Mad 831
: 48 IA 302; Nelliappa v. Punnaivanam , (1926) 50 Mad 567 ; Beharilal v. Murlidhar ,
AIR 1926 Cal 287 .
59 Sivaswami Iyer v. Thirumudi Chettiar,

AIR 1930 Mad 405 [
LNIND 1928 MAD 200 ]; Thirtha Swamiar v. Thirtha Swamiar,
AIR 1923 Mad 288 [
LNIND 1922 MAD 163 ].
60 Niladhri Sahu v. Mahant Chaturbhuj Das , (1927) 6 Pat 139 : 53 IA 253.
61 Ram Narayan v. Mahant Gopal Das ,

AIR 1924 Pat 611 .
62 Vibhudapriya v. Lakshmindra , (1927) 50 Mad 497 : 54 IA 228; Niladhri Sahu v. Mahant

Chaturbhuj Das , (1927) 6 Pat 139 : 53 IA 253.
63 Sundaresan v. Viswananda , (1922) 45 Mad 703 ; Lakshmindrathirtha v. Raghavendra ,

(1920) 43 Mad 795.
64 Premdas v. Sheoprasad ,
AIR 1934 Nag 222 .
65 Mahanth Ram Charan v. Naurangi Lal , (1933) 12 Pat 251 : 60 IA 124.
66 Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani ,

(1933) 60 Cal 54 .
67 Annadaprosad Adak v. Mihilal Adak, (1934) 59 CLJ 514.
68 Raghunath v. Purnanand , (1923) 47 Bom 529.

Page 50 of 50
S. 7 (A).
69 Vellachami v. Alagarsami ,
(1934) MWN 1205 .
70 Mundancheri v. Achutan, (1934) 60 CLJ 344 : 61 IA 405; Koman Nair v. Achutan Nair ,
(1935) 58 Mad 91.
71 Ramanathan Chetti v. Murugappa Chetti , (1906) 29 Mad 283 : 33 IA 139.
72 Koman Nair v. Achutan Nair , (1935) 58 Mad 91 PC.
73 Narasimha v. Venkatalingam , (1927) 50 Mad 687 ; Chhotalal v. Manohar , (1900) 24

Bom 50 : 26 IA 199; Thakardwara v. Ishar Das , (1928) 9 Lah 588.
74 Gaurishankar v. Chinnumiya ,
(1919) 46 Cal 183 : 45 IA 219; Salu Bai v. Rajat Khan , (1917) 13 Nag LR 130;
Murray v. Murat Singh , (1912) 36 Bom 510, dissented from ; Ramkishan Singh v. Mahomed ,
(1928) 32 CWN 1149 ; Sarjoo Prasad v. Ramsaran Lal ,
AIR 1931 All 541 .
75 Abdull Rahman v. Gaya Prasad ,

(1929) 5 Luck 384 .
76 Shakuntala Devi. State of Jharkhand,

AIR 2010 Jhar 56 [
LNIND 2009 JHAR 33 ] (59) :
2010 AIHC 1090 .
77 N. Ramaswamy Naicker v. V.G. Ramaswamy Naicker ,

AIR 1977 NOC 341 (Mad).
78 Y.N. Gangadhara Setty v. Karnataka Mills Federation , 2004

AIHC 3438 (3442) (Kant).
79 Hansa Industries Pvt. Ltd. v. Kidarsons Industries Pvt. Ltd., AIR

2007 SC 18 (24) :
(2006) 8 SCC 531 [
LNIND 2006 SC 822 ].
End of Document
Darashaw Vakil
S. 8.
Unless a different intention is expressed or necessarily implied, a transfer of
property passes forthwith to the transferee all the interest which the
transferor is then capable of passing in the property and in the legal
incidents thereof.
Such incidents include, where 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 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;
and, where property is money or other property yielding income, the interest or
income thereof accruing after the transfer takes effect.
End of Document
S. 8 (A).
Darashaw Vakil
COMMENTS
79. Hansa Industries Pvt. Ltd. v. Kidarsons Industries Pvt. Ltd., AIR
2007 SC 18 (24) :
(2006) 8 SCC 531 [
LNIND 2006 SC 822 ].
Scope of the section. —This section lays down the effect of transfer of property. According to this
section the transfer of property passes forthwith to the transferee all the interests, which the transferor is capable of
passing in the property and the legal incidents thereof. 80
S. 8 of the T.P. Act inter alia provides that unless a different intention is expressed or
necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is
then capable of passed in the property and in the legal incidents. 81 A person in possession pursuant to a contract
for sale does not get title to the land unless there is a valid document of title in his favour. 82 But even in the
absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and
the transferee is entitled to remain in possession. If perchance he is dispossessed by the transferor, he can recover
possession. The transferor cannot file any suit for getting back possession but all the same he will continue to be
the owner of the land agreed to be transferred. 83
Donation of land under the Madras Boodan Yogna Act (32 of 1956), does not require registration and as such for
want of registration is not invalid. 84
According to this section, when a transfer of property flows from the transferor to the transferee it carries along with
it two feeders, viz ., the entire estate of the transferee in the property and what is legally appurtenant to such
property. Section 8 does not operate to pass any future property, for what that section passes all interest which the
transfer can ‘then’, i.e. , at the date of the transfer, pass. 85 The interest of a co-sharer in common property can be
transferred leased or mortgaged to another co-sharer or a stranger and there is no bar. 86 A lessee from a co-
sharer is entitled to the rights of the lessor and can even enforce a partition, if it is necessary to give effect to his
lease. 87
Law of Property Act, 1925, Section 63. —This section re-enacts Section 63 of the Act of 1881. 88
Page 2 of 51
S. 8 (A).
(1) Every conveyance is effectual to pass all the estate, right, title, interest claim and demand which the
coveying parties respectively have in, to, or on the property conveyed, or expressed or intended so to be,
or which they respectively have power to convey in, to, or on the same.
(2) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has
effect subject to the terms of the conveyance and to the provisions therein contained.
(3) This section applies to conveyances made after the thirty-first day of December, eighteen hundred and
eighty-one.
Operation of transfer. —This enactment, like Section 63 of the Act of 1881, was intended to curtail
general words used in a conveyance. Neither, however, in England nor in this country were these enactments
heeded. The practical use of the doctrine enunciated in the section is to be found in that part of the deed of
alienation which follows the statement of the consideration and the receipt. In instruments of alienation in the case
of freeholds the general words used are "grant, convey and assure" followed by the description of the property
technically known as "the parcels." To the description are added "general words," descriptive not only of every kind
of easements, privileges and appurtenances belonging to the property but also fixtures, trees and timber. These
general words are followed by what is commonly known as "all the estate clause" which conveys or purports to
convey all the estate, right, title, interest, claim and demand whatsoever of the executing party. The all-estate
clause transfers, under Section 8, all the interest which the transferor is then capable of passing in the property
while the general words which precede this clause transfers the legal incidents in the property. Exceptions and
reservations, if any, intended by the parties, expressly follow the estate clause unless the law presumes a
reservation of such rights and easements as are specified in Sections 13, 14, and 15 of the Easements Act. The
legal expression "all other estate, right, title, interest, claim and demand" is understood to mean the quality of
interest which the transferor has in a particular given property. Where in a deed of composition the words "and all
the other estate, if any," of the debtor following the estate clause came up for construction, it was contended that
these words included an estate not specified in the Schedule to the deed of composition. The Court of Appeal held
that the general words of the assignment were controlled by the recital that the deed included property in the
Schedule and that the life-interest of the settlor in the settlement not referred to in the Schedule did not pass to the
trustee of the deed of composition 89 the words "and all other estate, if any," being treated as surplusage. Now
there are three rules applicable to the construction of such an instrument. If the recitals are clear and the operative
part is ambiguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear,
the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with
each other, the operative part is to be preferred. Where plaintiff purported to convey the fee to the defendant, an
equitable estate to the extent of a leasehold interest, was held to have passed to the defendant. 90
In land possessed under Inam granted by Ruler of the Indian States, the licensees were given right to graze the
cattle and not to cut the trees. 91
"Unless a different intention". —These words indicate that unless there is an exception or reservation
in a transfer everything passes by a transfer where the transferor conveys as owner. To that extent the rule is a rule
of construction. On a construction of a mortgage, a sale and certificate of sale of shares in a zamindari where the
documents contained no words of exception or reservation that they conveyed all interest of the mortgagor, vendor
and judgment-debtor respectively in the zamindari, their interests in the houses on the land and in the profits and
rents derived from them passed in the absence of any words showing an intention to retain or exclude them. 92 A
gift which enjoined the performance of religious ceremonies and celebration of festivals, including a provision for the
support of the donee, was held to confer on the latter a life-interest only. 93 A maintenance grant by a Raja to a
member of the family was held not to carry with it the right to open mines and raise minerals. 94 It has been held
that an estate for the life of A and afterwards to the heirs of his body was recognized by the Act as creating an
absolute estate. 95
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the
Page 3 of 51
S. 8 (A).
transferee all the interest which the transferor is then capable of being passed in the property and in the legal
incidents thereof and Section 66(6) (a), shows that where the ownership of the property has passed to a buyer, he
is entitled to the benefit of improvement in or increase in value of, the property and to the rents and profits thereof.
Even in a case of land sold or allotted by the State Government or the Municipality, the provisions of Section 8 and
Section 58(6) (a) of the T.P. Act are applicable and therefore if the sale or allotment of land by the
Municipality or the State Government is without any condition, restraining the purchaser from using the land for a
specified purpose only, the Municipality cannot demand any conversion charges under Section 173-A of the
Rajasthan Municipalities Act, 1959.96
A combined reading of
Section 8 and
Section 54 of the
Transfer of Property Act suggests that though on 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. It follows that on execution and registration of a sale
deed, the ownership, title and all interest in the property pass to the purchaser unless a different intention is either
expressed or necessarily implied; which has to be proved by the party asserting that title has not passed on
registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in
the sale deed itself or by other attending circumstances subject, of course, to the provisions of
Section 92 of the Indian Evidence Act, 1872 .1
Where first purchaser plaintiff had purchased the property from the defendant under registered sale deed, under the
terms of the sale deed, the first purchaser was to make certain payments, which he did not and so subsequently the
vendor executed second sale deed in favour of third persons, the intention of the parties at the time of execution of
first sale deed was to execute conveyance of title, the first purchaser was put in possession of the property and as
such the first sale deed was valid. The intention of the parties has to be inferred from the contents of the document,
the mere fact that the vendor did not hand over the registration receipt to the first purchaser would not invalidate the
first sale deed. 2
When a person purchases property, he can claim only through the vendor and any order passed prior to the date of
purchase is binding on the purchaser, even though the order is ex parte . 3
Transfer of land on which lessee has building. —In the instant case, the owner of the land had
leased out land for thirty years, with permission to raise a hotel building, and the lessee constructed the hotel
building thereon. The building did not belong to the owner of the hotel building. On the death of the owner, his wife
had inherited rights of ownership only, and transferred the land by sale deed which categorically stated that she
was not the owner of the building. Held, Section 8 got attracted in the case. The transferee only acquired ownership
right in the land, and was entitled to realize lease rent only. The tenants continued to be the owner of the building
and the lessee of the land. Section 8 ousted the general principle that transfer of land would include all things
attracted to it i.e. superstructure. 4
"All the interest which the transferor is then capable of passing". —As a general principle, where a
person has two estates, one larger and the other smaller, and purports to convey the entire property without any
words of limitation, he must be taken to be conveying the highest estate he has, that is to say, if an executor having
a one-third personal beneficial interest in the estate purports to convey the whole of it, without qualification or
limitation, he must be taken to be conveying in his character as executor and not in that of one having a beneficial
interest only in a fraction of the whole estate purported to be conveyed. 5 The same construction was adopted
where a Hindu widow who obtained probate of the will of her husband executed a conveyance which did not
expressly mention in what particular capacity she sold but who purported to convey "all the estate, right, title,
interest, etc ." she had in the property. 6 A somewhat curious case arose before the Full Bench of the Allahabad
Page 4 of 51
S. 8 (A).
High Court. There one M. executed a sale deed of a certain property to his mother, one of his heirs, who was
authorized to spend the purchase-moneys on certain charities to be determined by her. He died three days after.
The mother instead of expending the moneys in charities, dedicated the property by way of wakf , constituting
herself, and after her, one of the four heirs of the deceased, mutavali . Later the heirs of M. other than the mother
and the mutavali successfully asserted their right of inheritance and repudiated the deed of sale as being a gift in
disguise to an heir not sanctioned by Mahomedan Law. The sale deed was set aside but a majority of the Full
Bench held that the wakf was valid to the extent of the share of the mother, if not being expressly or impliedly
excluded. The dissenting judgment, which their Lordships of the Judicial Committee held to be correct, was that the
sale deed being void, the wakf was inoperative and fell with it. 7
"Legal incidents thereof". —On a transfer not only does the whole interest of the transferor pass in the
property but also whatever is appurtenant to the estate or the property passes forthwith to the transferee. These
incidents are enumerated in the section. This list is by no means exhaustive and must be considered only as
illustrative.
"Easements annexed thereto" (First Para). —There is no definition of the word "annexed" either in
this Act or in the Easements Act, V of 1882. The latter Act defines what an easement is and their sub-divisions.
Section 7 of the said Act enacts what easements are. Section 13 deals with easements of necessity and quasi-
easements. Two properties which had remained united in one owner became ultimately vested, one in the plaintiff
and the other in the defendant. The former was entitled to use a particular right of way but refused to put in
evidence the deed under which he became the owner, and a presumption was raised against him from refusal to
produce the title-deeds. The Court decided that no easement passed by Section 8 to the plaintiff as a legal incident
of the property, as plaintiff by refusing to produce the title-deeds prevented the Court from ascertaining whether a
different intention was expressed or necessarily implied in the conveyance to him, and it is only when a different
intention is not expressed or necessarily implied in the transfer of property that "easements annexed thereto" pass
by virtue of this section. 8 These are included in the legal incidents on a transfer of property, whether it be "land" or
"house". They must be existing at or before the transfer. 9 It is settled law that once an easement has become
legally appurtenant to a dominant tenement, it will ipso facto pass on a conveyance of that dominant tenement, no
express mention thereof in the deed of conveyance being necessary. 10 Where the three brothers had joint and
common rights in a well, the land is sold to the plaintiff and the defendant, but the plaintiff purchased the land along
with the well, the plaintiff alone is entitled to use the well, the defendant subsequent purchaser cannot claim joint
and common rights in the well. 11 Where at the time of sale the heirs who sold the property were themselves the
owner of the property, hence there was no question of easement of common passage, such right would not pass
with the transfer of shares under Section 8. 12 Where the plaintiff claims right to enjoyment of common cart
pathway, omission of such a right in dominant heritage is of no consequence when it is mentioned in the servient
heritage and is shown/mentioned in the latest field survey map. 13
Where plaintiff had purchased the property from the heir of one ‘L’, held the right of easement which was enjoyed
by ‘L’ and/or his heir pursuant to the agreement could be enjoyed by the plaintiff, as the said right of easement
passed to the plaintiff with the property which he had purchased from the heir of ‘L’. 14
Sale of building only—Land if passes? —Generally, any sale of a building without any specific
reference to the land whereon it stands cannot necessarily convey the land along with it and what is provided in
Section 8 of the Transfer of Property Act as to easement cannot apply to the land on which the buildings
stand for there is no easement in law which gives any exclusive and unrestricted use of land and if the grant is
exclusive and unrestricted, it beyond all questions passes the ownership of the land.15
Permanent injunction decree—If enforceable against the transferee judgmentdebtor. — No doubt

injunction is a remedy in personam , yet the enforcement of the decree for injunction against the legal
representative of the deceased or against the purchaser of the suit property pendente lite is saved by
Page 5 of 51
S. 8 (A).
Section 50 CPC and

Section 52 of the T.P. Act .16 As an easement is a transferable and heritable right along with the
dominant heritage to which it is appurtenant, unless modified, altered or extinguished by the operation of law or by
agreement of the parties or by reason of change in material circumstances, when a servient heritage is also
transferred, corresponding burden of easementary right annexed to it also passes with its transfer to every
subsequent owner. 17 The transferee judgment debtor is also bound by the decree respecting the decreeholder’s
easementary right of way and is liable thereunder in relation to the said servient tenement to the same extent as his
predecessor in title were bound by that decree. A decree for permanent injunction respecting the right of way is
executable against the transferee-judgment-debtor. 18 Section 8 makes it clear that an easementary obligation or
burden annexed with the servient heritage will also pass therewith to the transferee thereof on its valid transfer by
its vendor, as legal incident of the transfer. 19
A decree for permanent injunction cannot be a decree for personam since the easementry right of way in respect of
which the remedy of injunction is granted under it runs with both the dominant heritage and the servient heritage as
well. 20
"Rents" (First Para). —Both on a transfer of "land" as well as "house" rents accruing after the transfer
pass to the transferee but not rents accrued due before the transfer 21 unless there is a different intention expressed
or necessarily implied. A purchaser could, however, recover arrears of rent by contract. Such a contract must fulfil
the requirements of Section 130 of this Act. 22 How rents should be apportioned is enacted in Section 36 while
Section 55 in sub-clause (a) of clauses (4) and (6) states when the relative right of the vendor determines and that
of the purchaser commences to the rents and profits.
"Profits" (First Para). —These are legal incidents on a transfer of land and not of a house.
House. —On a transfer of a house the easements annexed thereto and rents accruing after the transfer
are legal incidents in common with a transfer of land. It also passes with it the locks, doors, bars, windows and
other things provided for permanent use with the house. The doors and window shutters have no separate
existence. 23 They cannot be removed in execution on a warrant of distress, 24 nor attached as moveable property.
25 On a sale of distillery buildings the vats and pipes do not go with them. 26
The English Law of fixtures does not apply to India. When a house or immovable property is sold all rights and
privileges concomitant to it and previously enjoyed by the owner go with it, specially when there is no provision to
the contrary in the deed of sale, and it is of no use to the seller to reserve them. 27 When a share in a village is
transferred the house and kotha are incidental to it 28 so also a house or grove situate in a village. 29 A lease for
cultivation carries with it trees and shrubs standing on it. 30 An auction purchaser at a Court sale acquires bamboo
clumps standing on the land. 31 The word "tenement" is obviously used synonymously with "dwelling house". 32
Although being part of the house it means a house. 33 The word "hereditament" in its settled sense is used to
denote such things as may be the subject-matter of inheritance but not the inheritance itself. 34 The word is applied
to things which are the subject of occupation. 35
Mortgage of structures. —Even though the title deed deposited relates to land only, if at the time the
deposit was made there were any tructures on it, equitable mortgage would be created both with regard to the land
as well as structures thereon. 36
"Machinery" (Second Para). —On a transfer of machinery attached to the earth the moveable parts
Page 6 of 51
S. 8 (A).
are the legal incidents. It does not pass with a transfer of the land unless attached to it for the permanent beneficial
enjoyment thereof. 37
"Other property yielding income" (Last Para). —These would include such properties as Government
securities, shares and stocks. On transfer of such property income accruing after the transfer would pass to the
transferee while that which had accrued up to the date of the transfer would belong to the transferor. This too is
subject to a different intention being expressed by the parties, for it often happens that shares are sold with the
dividends annexed, in which case the dividends belong to the transferee, they being included in the price paid by
the transferee to the transferor.
Title-deeds. —Title-deeds are not mentioned amongst the incidents but the transferor would
nevertheless be entitled to them as title-deeds are incident to the possession under a freehold title. 38 L conveyed
to plaintiff, by way of mortgage, certain land and deposited with him an indenture conveying the land from G to T
and also a document purporting to be an indenture by which the land was conveyed by T to L This document was in
fact a forgery. L afterwards deposited with defendants, by way of equitable mortgage, a document purporting to be
the conveyance from G to T but which was in fact a forgery, and also the genuine indenture of conveyance from T
to L Held that the plaintiff might maintain detinue against defendant for the recovery of the latter indenture. The
operation of the mortgage was to give to plaintiff property in all the deeds. 39
Delivery of possession. —The right of possession over a property is a facet of title. As soon as a deed
of sale is registered, the title passes to the vendee. The vendor, in terms of the stipulations made in the deed of
sale, is bound to deliver possession of the property sold. If he does not do so, he makes himself liable for damages.
40
Transfer by operation of law. —The applicability of this section is confined to transfers by act of
parties. Section 2, sub-section (d) excludes the operation of this section to any transfer by operation of law or by or
in execution of a decree or order of a Court of competent jurisdiction. A sale in execution of a decree is a sale not of
the property but of such right, title and interest which the judgment-debtor has in the property. 41 Section 8 does not
apply to transfer which takes place by operation of law or by a Court sale. 42 The section was held to be no bar to
the vendor’s lien for unpaid purchase-money passing to the purchaser in execution. 43
A change of law, however, is not retrospective. In execution of a decree against the holder (by custom of
primogeniture) of an impartible zemindari who was a member of a joint family, his right and title and interest was
sold. By the law as then interpreted it was a limited interest subject to alienation in special justificable causes.
Subsequently the interpretation of law was reversed by the Judicial Committee which held that such a holder had
an absolute estate. In a purchaser’s suit it was held that the reversal of the previous accepted interpretation of the
law did not displace its application to the contract contained in the certificate of sale, the parties were bound by the
law as then understood and that only the life-interest of the then holder passed by the sale. 44 All that passes at the
auction is the right, title and interest of the judgment-debtor. The purchaser is placed exactly in the shoes of the
judgment-debtor as regards the land sold. As agricultural rents are not apportionable for they accrue once and for
all at the time the crops are reaped and do not accrue day to day, there could be no question of apportionment and
the purchaser is entitled to the rent, apart from Section 8, and entirely on first principles. 45 Neither Section 8 no r 36
of the
Transfer of Property Act applies to agricultural rents. Both under this section and under
Section 65 of the Civil Procedure Code the purchaser in a Court sale is entitled to the property from the
date of the sale and not from the date of the confirmation thereof.46
Revenue sales. — Section 8 has no application to such sales. The rights of a purchaser at a revenue
Page 7 of 51
S. 8 (A).
sale are entirely and radically different from those of a purchaser at a voluntary sale. In a sale under Act XI of 1859
(Land Revenue Sales Act ), the estate is sold in the condition in which it stood at the time of the settlement; the
purchaser does not derive his title from the defaulting proprietor, but takes the estate from the Crown in the state in
which it was at the inception. 47 The franchise of a ferry is not necessarily appurtenant to land. 48 There is no
statute law in India defining the mode of acquisition of ferry right. Where ferry rights across the river are settled by
Government with one person he has a right to restrain another from running his ferry over the same spot unless he
used it exclusively for the conveyance of his own servants and ryots. 49
Mines. —There is no definition of land in the Act, but ownership of land carries with it everything from
the centre of the earth to the heaven above. 50 The maxim is " cujus est solum ejus est usque an coelum et ad
inferos ." Under the Settled Land Act, 1925, 51 land includes mines and minerals, whether or not held apart from the
surface, buildings or parts of buildings. Hence a transfer includes all mines and minerals below the surface. 52 But
they do not include royal mines such as gold and silver. In such cases the ancient prerogative of the Crown remains
unaffected, and the mine cannot be worked by a subject even on his own land, without the licence of the Crown. 53
By statute, 54 searching and boring hole and getting petroleum is prohibited to persons other than a person acting
on behalf of or holding a licence from the Crown. In India as in England land includes on a transfer mines and
minerals below the surface. What it includes is stated in the
Land Acquisition Act 55 but that definition is restricted to that particular enactment and cannot
be imported in this Act. But a "grant" in India has not the special and technical meaning attached to the same word
in English Law. Minerals will not be held to have formed part of the grant in the absence of express evidence to that
effect. 56 Sub-soil rights in land forming part of a permanently settled zemindari are to be presumed at all events
when they are not claimed by the Crown to belong to the zemindar. Proof of possession of the surface rights would
not include sub-soil rights. 57 The essential characteristics of a mokarari lease are occupation and enjoyment and
unless there be, by the terms of the lease, an express or implied grant of mineral rights they remain reserved to the
zemindar. 58 In case of patni taluks the Calcutta High Court, following Ali Quadar Hossain v. Jogendra Narain Roy ,
59 which the Privy Council pointed out 60 was not overruled by that Board, held that where there was no express
grant of underground rights, in the absence of any explicit reservation the grant of patni conveys all rights including
underground rights which belong to the zemindar. 61
Where the terms of the grant showed that there was no transfer of property in the soil, the intention being that the
patnidar should be a leaseholder only, it was held that the patnidar and those claiming under him were not entitled
to excavate the soil for the purpose of making bricks. 62 Patni tenures generally are on the same footing
as to sub-soil rights as other permanent heritable and transferable tenures created by a zemindar—that is to say,
the sub-soil rights pass to the patnidar only when granted in express terms; general vernacular words signifying
"with all rights" are insufficient for that purpose. 63
Land in a zemindari is to be presumed to be the property of the zemindar and held from him. It is well settled that as
between a zemindar and a jaghirdar holding from him the zemindar is entitled to the minerals. 64 It is well
recognized that there can be separate ownership of different strata of the sub-soil, at all events where minerals are
involved. 65 In England almost every kind of clay of commercial use has been recognized as a mineral. Where title
is founded on adverse possession the extent of possession enjoyed may be an inference of fact and in applying the
rule to the case of a mineral field regard is to be had to the nature of the subject and the possession to which it is
susceptible. A coal company which held a mokarari lease of a village believed itself entitled to the subjacent
minerals and carried on mining operations for twelve years. A suit by the zemindar claiming minerals under the
village, was held barred by limitation as the company had been in adverse possession of the minerals for more than
twelve years. 66
Right to dig shells. —Though a tenant of lands for the cultivation of paddy may, possibly, be justified in
digging up shells from the land for the cultivation of the land in a proper and husband-like manner, the property in
the shells so dug up is (in the absence of a local custom) not in the tenant but in the landlord, and the tenant has no
right to convert them to his own use. 67
Page 8 of 51
S. 8 (A).
"All things attached to the earth" (First Para). —Used in connection with a transfer of land the phrase
is defined in Section 3. It occurs in Section 108 (h) also. The English Law of fixtures has limited application in this
country. 68 And the English maxim " omne quod inoedificatur solo cedit " has no application in this country. 69
According to the definition of the words "attached to the earth," on a transfer of land, building would pass therewith
unless the deed contains words shewing an intention to retain or exclude them. 70 The maxim quicquid plantatur
solo, solo cedit is a rule of considerable antiquity, but is inapplicable in India. Buildings and improvements made
over the land would not become the property of the owner of the soil merely because the improvements were
attached to the soil. 71
The property in trees growing on land is by the general law vested in the proprietor of the land subject to any
custom to the contrary. Under Section 23 of the Bengal Tenancy Act (VIII of 1885) the onus is on the landlord to
show that a tenant with occupancy right is debarred from cutting down the trees on the land and not on the tenant to
prove a custom giving him the right to do so. The right to appropriate them when cut down is a different question
and the onus is on the tenant to prove the custom giving him the right to sell the trees.72 The Allahabad High Court
has held that when a tenant, either occupancy or a tenant at will, plants trees on his holding the property in those
trees, in the absence of custom or contract to the contrary, attaches to the land and the tenant has no power of
selling or otherwise transferring those trees. 73 Trees being attached to the earth, are included in the legal incidents
of the land and pass to the transferee under a deed of sale of the land on which they stand, unless a different
intention is expressed or necessarily implied. No such intention is necessarily implied because the trees are
mortgaged prior to the sale and no mention of the mortgage is made in the sale deed. 74
The word "fixture" is of common use in English Law but it is not so familiar in India. The maxim " quicquid plantatur
solo, solo cedit " has never received so wide an application as in England, for anything to be a fixture it must be
attached to the earth as that expression is defined in
Section 3 of the Transfer of Property Act . So where a shed consisting of pillars which supported a roof of
tiles but was not fixed to the ground and merely rested by its own weight, was held to be a chattel and not a
fixture.75 In the absence of a special agreement a tenant has as against his landlord a right to insist that so long as
his tenancy continues the landlord shall not cut down trees standing on the tenant’s holding. 76
Even if the title deed or the schedule of property attached thereto does not mention that the house in the property
which is the subject of transfer is also transferred, the transferee would get title to the house situated in the
property. 77
Where the wife of the owner of the land, the hotel building standing thereon, transferred only land and not the
building, the building stood excluded by virtue of
Section 8 of the T.P. Act . The authorities under the
Indian Stamp Act, 1899 , were not competent to add the value of the building in the value of land for
assessing the market value of the property transferred under the above sale deed.78
Can Registering Authority refuse registration. —Registering Authority can refuse registration, if, on a
cursory enquiry, it is clear that the person purporting to have executed the cancellation deed is not the person
entitled to the property as on the date of execution. This he can easily do by merely looking at the document and
the previous documents registered in respect of the property as per the register available in his office in respect of
the property, which would show who is the present owner of the property. 79
Freehold and leasehold property. —The Act makes no distinction between freehold and leasehold for
Page 9 of 51
S. 8 (A).
the purpose of the rule of law embodied in this section. 80
Debt. —The word "debt" in clause 5 of Section 8 should be confined to such debts as fall within the
general category of actionable claims. 81 Prior to Act 2 of 1900 which amended Chapter VIII of the present Act,
there was a conflict of decisions as to whether a mortgage debt was within the rule in Section 8. To set the conflict
at rest Act 2 of 1900 was passed by substituting a new chapter dealing with the transfer of actionable claims and
inserting in Section 3 a definition of "actionable claim" which excluded any "debt secured by mortgage of immovable
property or by hypothecation or pledge of moveable property." Still controversy ranged around mortgages by
deposit of title-deeds. In Perumal Ammal v. Perumal Naicker , 82 Wallis, C.J., held that where the law still admits of
the separate transfer of the mortgage debt as by the endorsement of promissory notes secured by a deposit of title-
deeds or by attachment and sale in execution of a mortgage debt under the
Civil Procedure Code, 1908 ,
Section 8 of the Transfer of Property Act still operates to carry the security with it. This view was,
however, dissented from by the same Court which held that the endorsee for value of a negotiable instrument the
amount of which had been secured by a mortgage by deposit of title-deeds cannot claim to enforce the mortgage in
the absence of a registered instrument conveying the mortgage right to him.83 It may, however, be mentioned that
Court sales of mortgage debts are governed by the special provisions of the
Code of Civil Procedure, 1908 and where a mortgage by deposit of title-deeds is accompanied by a
promissory-note the deposit is merely a collateral security for the debt and a transfer of such a mortgage can be by
endorsement of the promissory-note accompanied by re-deposit of title-deeds. The transfer of a debt without
transfer of security came up for consideration before the Privy Council where their Lordships observed that the
view, that as a secured debt was not within the definition of actionable claim a debt without security could not be
made the subject of transfer at all, appeared to be creating disabilities not expressed in theAct and indeed were
inconsistent with it for by Section 6 of the Act of 1882 "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." The effect of the amendment in 1900 is to
restrict the statutory rights on transfer such as the right to sue in the transferee’s name,etc ., to such transfers as
are transfers of actionable claims as defined. There appears to be no difficulty in a transfer of a debt without the
security; as the original debtor can always redeem, the relations between him and his original creditor are not
altered. The transferee takes no further interest than the transferor was able to give him. 84 A pledge is governed by
Section 176 of the Indian Contract Act,1872 ; there a creditor has two rights which are concurrent and
the right to proceed against the property pledged is not merely accessory to the right to proceed against the debtor
personally on the promissory-note. For the pledge may have a right to sue for the property even in the absence of a
right to sue for a personal decree. The same principles would apply to the case of hypothecation mortgages of
moveable property.85 A charge under Section 55, sub-section (4), clause (b) may be transferred together with its
security. 86
A debt distinguished from mortgage can be transferred registered document would not be required. 87
In case of transfer of debt due under the decree the securities in respect of the debt also vest in the transferee, and
the latter is entitled to the securities also in view of the provisions of Section 8. 88
Interest on a debt. —On a transfer of a debt arrears of interest accrued due before the transfer do not
pass to the transferee.
Joint right. —A joint right in the sehdaries and a gateway, in the absence of reliable evidence to the
contrary, raises a presumption that it passes on a transfer. 89
Settlement deed or Will. —The nature of the document depends on the actual recitals in it but not on
Page 10 of 51
S. 8 (A).
its form or nomenclature. The word ‘settlement’ is not defined any where in the
T.P. Act . It is disposition of property either for the purpose of settling the disputes among the family, for
religious purposes or in consideration of marriage.90 While construing a settlement deed it would be harmoniously
interpreted so that the legitimate interests of none of the beneficiaries is jeopardized and full effect is given to the
intention of settlor. 91
Settlement is one of the recognized modes of transfer of movable and immovable properties. In order to find out the
correct intention of the settlors, the deed of settlement has to be read as a whole. 92
The settlor, by document, created in herself a life interest in the property and vested remainder in favour of her
daughter. It is settled law that the executant while divesting herself of the title to the property could create life
interest for her enjoyment and the property would devolve on the settlee with absolute rights on settlor’s demise.
Thus, by deed, the settlor created right and interest in praesenti in favour of her daughter in respect of the property
mentioned in the deed, with life interest for her enjoyment during her life time. The settlee was to acquire absolute
right to the property on the death of the settlor. It was held that the document was a settlement deed and not a Will.
93
Where under the document only possession of the property was given to the beneficiary, executor remained
absolute owner of the property, the possession and enjoyment of the property were to be as per wishes of the
executant, the property was to pass to the beneficiary only after the death of the executor, it was held the document
was a Will and not a settlement or gift. 94
A Will need not be written on stamp but if the parties get the Will registered with a view to avoid any dispute about
the execution of the Will, the fact of the registration alone will not render the document a settlement if it in other
words is a will. 95 A Will need not be written on stamp paper neither it be registered while its registration costs less
than the registration of a deed of settlement. Had the executant intended the document to be a Will, he would hardly
have undergone this extra expenditure. 96
Where a testator executed a deed giving his property to his wife, brother and sister on account of his love and
affection, beneficiaries were to get the properties after the death of the testator. They were not permitted to transfer
the property during the lifetime of the testator. The testator was also denied right of transfer of property. Though the
document was prepared on stamp paper and registered, it was held that it was a deed of settlement and not a Will,
which could not be revoked by the testator. 97
‘A’ had executed the settlement deed whereby he transferred certain properties in favour of his mother-in-law ‘P’.
The settlement deed contained a clause, "In view of my desire to give certain properties to be enjoyed by you and
after your life time, by ‘S’, the son born of you to ‘V’ from generation to generation, paramparaya, for all time.......... I
hereby agree that you, and after you, your son, and his descendants from generation to generation for all time may
hold the properties and enjoy the same from this day onwards." ‘S’ died in the year 1935 and later on the death of
‘P’ in the year 1951 ‘G’ the widow of ‘S’ instituted a suit for possession of the properties given by the deed to of ‘P’.
It was held that under the deed "S" had been given the absolute estate in the properties subject to the life estate
created in favour of ‘P’, which could not be defeated by his death before he obtained possession, as such his widow
‘G’ was, entitled to the said properties on the termination of the life estate of ‘P’. 1
Sale deed—Misdescription of property. —Where there is mis-description of property, as to plot

number or khata number, boundaries of the property however have been given correctly, title can be adjudicated on
Page 11 of 51
S. 8 (A).
the basis of the boundaries given in the deed. 2
Government grant. —It is well settled that the intention of the parties to a document of grant has to be
gathered by the words used by the parties themselves. One must have regard not to the presumed intention of the
parties, but to the meaning of words they have used. A departure can be made from the literal construction rule if
there be any ambiguity. Where the grantor is the sovereign, the grantor’s document has to be interpreted strictly
against it and in favour of the grantee. 3
Where a particular property is governed under

Government Grants Act, 1895 , T.P.Act does not apply and rights under the
T.P. Act cannot be claimed in respect of such grant as envisaged in
Section 3 of the Government Grants Act .4
Trees. —Under Section 3 (a), all things attached with the earth are included in the land. Thus standing
trees being embodied in the earth are part of the land. In view of Section 8 of the Act, when a vendor sells a
property, he sells all his rights embedded in the property unless it is specifically or impliedly excluded. 5 There is no
definition of immovable property in
T.P. Act , in the absence the general definition of immovable property contained in
General Clauses Act would prevail, trees are part of the land, on transfer of the land, the ownership of
the trees also vest in the transferee in the absence of any stipulation to the contrary. The trees are not sold
separately.6
Transfer of trees—Land if also transferred? —There may be presumption that when land is
transferred, all the things attached to the earth, such as trees and shurbs, are also transferred along with the land in
view of the provisions of
Section 3 of the T.P. Act . But there can be no presumption in a case vice versa . The transfer of the
trees will not by itself justify the inference that the land was also transferred. 7
Well. —Where by sale deed the plaintiff has sold land with all appurtenances, well situated in the land
also stood transferred to the defendant, the mere omission to mention well in the sale deed would not preclude the
defendant from claiming the well. 8
Family settlement/arrangement. —A family arrangement per se is not exempt from registration. The
caption given to a document by parties is not decisive of what it amounts to. Its contents have to be read as a whole
to determine the true nature of the transaction it incorporates. 9
Section 10 of the Transfer of Property Act applies to transfer the property. It is not applicable to the
family settlement which only recognize preexisting rights.10
Where a family arrangement is not pleaded in written statement but filed in Court after trial has made substantial
progress, the genuineness of the deed is not beyond doubt. 11
Non-payment of sale consideration. —The question as to whether, upon the execution of the sale
deed, title passes to the vendee or not depends upon the intention of the parties. In terms of
Section 54 read with
Page 12 of 51
S. 8 (A).
Section 8 ,
T.P. Act ordinarily the title of the vendor passes to the vendee on the registration of the deed of sale,
irrespective of the fact as to whether the consideration money either in whole or in part has been paid by the
vendeee to the vendor or not, subject of course to a contrary intention of the parties appears to the said
transaction.12 A registered deed of sale carries with it a sanctity of a genuine transaction, and the burden lies on the
vendor to show that on the execution and registration of the sale-deed, no title passed on to the vendee as he did
not pay the sale consideration amount in view of the intention of the parties that unless consideration amount is
paid, no title will pass on to the vendee. 13 Where the vendor plaintiff failed to establish that no consideration was
paid at the time of the execution and registration of the sale deed, the plaintiff-vendor’s suit for declaration of title
and possession over the vended property was dismissed. 14
It is now well settled that the question as to whether a title passed to the vendee, even if the consideration amount
or part thereof has not been paid depends upon the intention of the parties. Such, an intention has to be gathered
primarily from the recitals made in the deed of sale as also circumstances surrounding thereto. In terms of Section
54 a sale may become complete, although the consideration amount has not been paid or but promised to be paid.
15 In terms of Section 8 title passes forthwith upon the registration of the deed to the transferee with all the interest
which the transferor had been capable of passing in the property and in the legal incidents thereof unless different
intention as such is expressly or necessarily implied. 16 The sale deed may provide that the title in the property
would pass only on payment of entire sale consideration. 17
There cannot be a vacuum or interregnum where there is a life estate followed by an absolute estate, because the
residue must rest somewhere and that what is deferred is only the possession of the properties in favour of the
settlees and not the vesting of interest. In other words, only the possession of the properties would be postponed
but not the vested interested created under the document. 18
Land with saplings—Transfer of. —Where saplings existed on the land sought to be transferred on
the date of the agreement for sale but such saplings were not mentioned in the agreement for sale, the principle
that trees would not go with the land would apply, the parties never intended that the saplings were also intended to
be sold. 19
"Quic quid inaedificatur solo solo cedit". —The principle "quic quid inaedificatur solo solo cedit", ie.
whatever is affixed on the soil belongs to the soil has been held not applicable in India. 20 Here the super structures
and the land underneath thereof can be owned by two different persons. 21
Conveyance or release deed—Determination of. —It is now well settled that in order to determine the
nature of an instrument, neither nomenclature nor the language which the parties may choose to imply in framing
the document is decisive. What is decisive is the actual nature and character of the transaction intended by the
executant. 22
A deed of release is an instrument by which one of the co-owners releases or renounces his interest in the specified
property and the result of such release would be the enlargement of the share of the other co-owner. 23 Where by
four separate documents, four out of ten co-sharers relinquished their share in the property in favour of the
remaining co-owners, it was found that the deeds were deeds of conveyance and not release deeds. 24
Creation of new lease. —Where in a suit for eviction by compromise entered into the parties three
years’ time is given to the judgment debtor for vacation of the premises, no new rights are created, no new lease is
Page 13 of 51
S. 8 (A).
created thereby, which would require registration. 25
Where plans/maps appended to the deed. —A document has to be construed as a whole. A stray
sentence here and there cannot be picked out to construe a document. To understand the tenor of the document
and the intention of the parties it has to be read as a whole. The real intention of parties has to be gathered not
merely from what ex facie is stated in the description of the property in the schedule but from the totality of the
recitals in the document. 26
Very often plans are not appended to documents and the parties are satisfied with the description of the properties
and the boundaries. In cases where executants of the documents take particular pains to have plans appended to
documents, their importance cannot be lightly ignored as they form part of the documents. 27
One principle of construction of documents is that when the property has been sufficiently identified in a deed and
subsequent details are inconsistent with it, the latter has to be disregarded. Assuming that there are inconsistencies
in the recitals in the body of documents and the description of the properties in the schedule, the latter cannot
merely be accepted ignoring the former. In this context the plans appended to sale deeds would assume
considerable importance. 28 Where there was specific averment in the sale deeds that though the title deeds of the
plaintiffs disclose the extent of property as 23 acres and 80 cents, but the real extent was only 19 acres 50 cents as
ascertained by actual measurement on the spot and the vended plots had been shown by A, B, C, D, and site plan
was attached to the sale deeds, it was held that the description of the property in the site plan to the documents
could not be given any over-riding importance over the actual area specified in the document as the extent
determined on measurement. The defendants could not claim the extent of property as shown in the site plan to
these sale deeds. 29
Omission of survey number/ area of the land transferred—effect of. —Where the agreement for
sale contains name/description of the land and not survey number, merely because it does not contain the survey
number or not the area, the document cannot be branded as a void document. In villages the lands are known by
name rather than by its survey number. This custom of naming a piece of agricultural land seems to be based upon
the legendary illiteracy of the country. 30
Adoption deed failing as such, can be given effect to as a Will. —Where an adoption deed fails as
such, it can be given effect to as a Will, if intention to settle property upon adopted son soon after the death can be
found in the deed. 31 The intention that is to be gathered from a document of the kind is as to whether the executor
of the document merely intended it to be an adoption deed, in other words, merely intended to give effect to his
desire to adopt a son or he also intended to settle his property upon his after his death. 32
Map annexed with the grant. —Where in the map appended to the deed of grant, the area of the land
shown is less than what is stated in the document of grant, the area as shown in the deed of grant shall prevail. It is
well settled that in such cases where the map differs from the terms of the grant, the terms of grant shall prevail. 33
Lease deed accompanied with plan—Area given in the plan to prevail. —Where the lease deed
specifically provides that the plot shown in the deed can be delineated from the plan appended to the deed, in case
of dispute the area, boundaries etc., as given in the plan would prevail. 34
Page 14 of 51
S. 8 (A).
Adoption deed or Will. —Where it is mentioned in the adoption deed that the adopted child shall be the
owner of the property of the donor, it clearly shows that the adoptive father intended to adopt the adopted son. The
document was held to be an adoption deed and not a Will. 35
Where by a settlement deed the executant had created life interest in his favour, his foster son and his wife and the
remaining property was given to the two sons of his fosters son of the settlor, it was held that on the date of
execution of the deed, the two sons of the settlor executant acquired a vested interest in the property. 36
Compromise decree—If creates fresh tenancy. —Where in an eviction suit a compromise decree was
passed and the decree provided that the plaintiff landlord would not execute the decree if the arrears of rents and
mesne profits were paid within a certain period of time and the defendant was permitted to stay in the suit premises
till that time on payment of monthly mesne profit, the terms in the compromise decree could not in any way be
interpreted as creating a demise of the suit premises in favour of the defendant and no fresh tenancy was created
thereby. 37
Gift or Will. —The main test to find out whether the document constitutes a Will or a Gift is to see
whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the
disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of
executant, it would be a Will. But if the executant divests his interest in praesenti in the settlee, the document will be
a settlement. The general principle also is that the document should be read as a whole and it is the substance of
the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in
the document are only a guide to find out whether there was an immediate divestiture of the interest of the
executant or whether the disposition was to take effect on the death of the executant. 38 Where the document was
named as settlement, the executant was to enjoy the income from the properties during her life time and she was
not given any right to encumber the property or in any way dispose of the same during her life time, the clause was
normally consistent with the document being a settlement and a transfer of an interest in praesenti but the right to
possession and the right to income being postponed to a future date. As there was no present disposition and the
disposition was to take effect on the death of the executant, the clause relating to enjoyment of the income
restraining the powers of alienation of the executant would be ineffective and will not enlarge the disposition nor
affect the rights available to the executant under the law. On the aforesaid facts, the document was held a will and
not a settlement. 39
Coparcenary interest—Transfer of. —Even a coparcenary interest can be transfered subject to the
condition that the purchaser without the consent of his other coparcencers cannot get possession. He acquires a
right to sue for partition. 40
Transfer of vehicle by a person having hire purchase agreement. —Where a person is in

possession of a vehicle under hire purchase agreement he is merely a prospective owner and he can become
absolute owner if he pays the entire amount under the agreement. A person therefore if transfers a vehicle having
under hire purchase agreement, the transferee acquires the right of prospective owner only. 41
Gift Deed or deed of release. —Where the operative part of the deed is unambiguous and is intended
transfer whatever rights and interest the executant had in the said property in favour of the person claiming release
and the document is attested by two witnesses, the document will operate as a Gift Deed. 42
Page 15 of 51
S. 8 (A).
Deed of release . — It is well settled rule of interpretation of deeds of release that

however wide and general the covenant of release may be, its operation must be restricted to the rights which are
in the contemplation or in controversy between the parties and would not cover or comprehend rights which are
never in the minds of the parties at that time. 43 In Chinnathayi v. Kulasekara , 44 the Supreme Court observed :
"It is well settled that general words of release do not mean release of rights other than those then put up and have to be
limited to the circumstances which were in the contemplation of the parties when it was executed".
It is well settled that no valid title can be created by relinquishment or release. The release pre-supposes the existence of
title in a third person and does not purport to re-convey that title to him. It tantamounts to an admission of existing fact by
the ostensible owner. 45
Where a son by a release deed was said to have relinquished his right in the property of the father, the joint family
property did not exist by that time, and subsequently the self-acquired property of the father was converted into joint
family property, the son continued to be a member of joint family, he was held not to have released his share in the
joint family property. 46 A registered instrument styled as release deed releasing right, title and interest of the
executant in any property in favour of the releases for valuable consideration may operate as a conveyance, if the
document clearly discloses an intention to affect a transfer. 47
Trees if pass on sale. —The general principles as to the trees which are attached to the earth and
referable to the English maxim quicquid plantatur solo, solo cedit cannot replace the statutory intendments. That
maxim means and is understood to convey whatever is affixed to the soil as belonging to the soil, passes to the
person who takes the soil. The trees being the part of soil or the thing belonging to the soil, normally would stand
conveyed under this maxim upon a transfer to the transferee. This maxim is, the basis of even
Section 8 of the Transfer of Property Act .48 Under
Section 8 of the T.P. Act , unless a different intention is expressed or implied, the transfer of land would
include trees standing on it.49 In the absence of contract to the contrary on settlement of land, the settlee becomes
entitled to the trees existing on the land and also to the produce thereof. 50
Where the land is purchased by the tenant, the ownership of all the trees standing on the land do not automatically
vest in him, only such trees will automatically go to him which are part of his lease. 51
The English maxim quicquid plantatur solo, solo cedit or the provisions of Section 8 of the Transfer of the Property
Act do not apply to compulsory sales affected under the provisions of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958. 52
Minerals if pass with surface . —Prima facie the owner of a surface of the land
is entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals
necessarily pass with the rights to the surface. 53 A transfer of the right to the surface conveys right to the minerals
underneath unless there is an express or implied reservation in the grant. A contract, therefore, to sell or grant a
lease of land will generally include mines, quarries and minerals beneath or within it. 54
Page 16 of 51
S. 8 (A).
Family settlement or out-right partition. —In 1900, when the deed was executed, one or more
members of a joint family governed by the Aliyasanthana law of inheritance had no right to claim a partition of the
joint family properties, but by a family arrangement entered into with the consent of all its members, the properties
could be divided and separately enjoyed. In such families an arrangement for separate possession and enjoyment
without actual disruption of the family was common. An arrangement for separate enjoyment did not effect a
disruption of the family, unless it completely extinguished the community of interest in the family properties. The
deed showed that the properties were divided into two shares. Each branch was to enjoy its share in perpetuity
from generation to generation without any interference from the other branch. There would be separate mutations
and separate pattas in respect of the properties allotted to each branch. The assessments were to be paid
separately. Each branch would have a separate manager. The share of the common debt allotted to each branch
and the interest thereon would be paid separately. All these features coupled with other circumstances would
indicate a complete disruption of the family. 55 But the other features of the deed indicated that it did not effect an
out-right partition. The object of the deed was to prevent disputes and wastage of properties and to preserve the
dignity of the family. In terms, the deed did not declare that there was a complete disruption of the family. The
members of the two branches were restrained from incurring debts binding on the family properties and from
alienating the properties or any portion thereof and the granting any leases except in the ordinary course of
management. These restrictions were obviously placed for the purpose of preserving the family properties intact for
the benefit of both branches and such the conditions restraining alienations were void under
Where a party has no antecedent title in property, the question of family arrangement would not arise in the case
Dhiren Chakraborty v. State of Assam. 57
Family arrangement—Mohammadan Law. —A family arrangement is not foreign to Mahomedan Law,

is binding on the parties inter se, the same way an arrangement binds the Hindus as principles governing such
family settlements are the same. 58
Grant. —The grant should be construed to include all rights, title and interest of the grantor, unless there
is a contrary provision either expressly made, or implied by necessary implications. 59
The grant of the soil of the village including the bed of the river must not necessarily include the grant of the title to
the flowing water of the river. 60
Fixtures. — Section 8 provides that unless a different intention is expressed or necessarily implied, a
transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing
in the property and in the legal incidents thereof, and those incidents include all things attached to the earth.
Fixtures will pass under this section to the transferee unless it is provided otherwise. 61
Grant by Sovereign authority. —It is well settled that the ordinary rule applicable to grants made by a
subject does not apply to grants made by the Sovereign authority; and grants made by the Sovereign are to be
construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in
favour of the subject. If the intention is obvious, a fair and liberal interpretation must be given to the grant to enable
it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the
recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the
honour of the Sovereign; and where two constructions are possible, one valid and the other void, that which is valid
ought to be preferred, for the honour of the Sovereign ought to be more regarded that the Sovereign’s profit. 62
Page 17 of 51
S. 8 (A).
Trust—Dedication whether complete/partial. —Dedication of a property to religious or charitable

purposes may be either complete or partial. If the dedication is complete, a trust in favour of public religious charity
is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the
charity is attached to, and follows, the property which retains its original private and secular character. Whether or
not dedication is complete would naturally be a question of fact to be determined in each case in the light of
material terms used in the document. 63
Where grant in favour of a limited owner. —The Privy Council decision in Mahomed Shumsool v.
Shewukram , 64 held that a bequest to a daughter-in-law passed a limited estate.
The proposition laid down in Mahomed Shumsool’s case (supra ) was construed by the High Courts in India to
mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of
inheritance which she could alienate at her pleasure unless the deed or will gave her in express terms a heritable
estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used
conferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being conferred
by express and additional terms. 65
Shumsool’s case (supra ) was examined in some High Courts and it has been observed that according
to the law as understood at present there is no presumption one way or the other and there is no difference
between the case of a male and the case of a female, and the fact that the donee is a woman does not make the
gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. 66 The matter
has now been set at rest by the decision of the Supreme Court in Ram Gopal v. Nand Lal . 67 In this case the
Supreme Court observed as follows :
"It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable
property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power
is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Kollani Kuar v. Luchmee
Parasad , 68 which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be
unassailable.
"It was held by the Privy Council as early as in the case of ‘Jotendromohum Tagore v. Ganendramohun Tagore’ , 69 that if
an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context carry,
by Hindu law, an estate of inheritance. This is the general principle of law which is recognised and embodied in
Section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female
means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a ‘widow’s estate’, there is no
jurisdiction for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied
in support of the same.
"The position therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be
given; it is enough if words are used of such amplitude as would convey full rights of ownership."
Page 18 of 51
S. 8 (A).
Deed construction of. —Meaning of every word in the document always depends upon the setting in
which it is made, the subject to which it relates and the locality of the grantor from which it takes its true shade of
meaning. Oral evidence to determine the effect of an instrument is also permissible where there remains a doubt as
to its true meaning and the evidence of the act done under it is a guide to the intention of the parties, particularly,
when acts are done shortly after the date of document. 70 Interpretation is the question of law. 71 For finding out
true construction, extrinsic evidence may also be admissible. 72
A document, as is well known, must primarily be construed on the basis of the terms and conditions contained
therein. It is also trite law that while construing a document the Court shall not supply any words which the author
thereof did not use. 73 In construing a document, whether in English or in any Indian language, the fundamental rule
to be adopted is to ascertain the intention adopted from the words employed in it. 74
When two interpretations of a deed are possible, the duty of the Courts is to lean towards such an interpretation,
which advances the cause of justice. 75 The true nature of document cannot be disguised by labelling it to suit
convenience of any party is an established proposition of law. 76 Where the language is plain and unambiguous,
the same has to be adhered to. 77
It is settled principle of law that when the agreement is ambiguous or vague on any aspect, oral evidence can be
adduced but when the agreement is specific and definite in its terms, no evidence can be let in. 78
Nomenclatures are not normally the nucleus to understand the nature of any agreement, the guiding factors being
always intent and the surrounding circumstances. 79
The intention of the parties to be gathered from the document is the determination factor. If any ambiguity
permeates, the document, the surrounding circumstances can be looked into for the construction of the document.
80
A document, must be read in its entirety. When character of a document is in question, although the heading
thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the
document itself but therefore circumstances attending thereto would also be relevant; particularly when the
relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should
be read in their entirety. 81
Courts ought not to be guided merely by the nomenclature and the description given to a particular document by the
parties. If, on a general reading of the document concerned, a different legal or jural relationship could be carved
out in the peculiar facts and circumstances of a given case, then the mere description given to a document by the
parties may not have the weightage it would normally demand. 82
For construction of the contract, it is settled law that the intention of the parties is to be gathered from the words
used in the agreement. If words are unambiguous and are used after full understanding of their meaning by experts,
it would be difficult to gather their intention different from the language used in the agreement. If upon a reading of
the document as a whole, it can fairly be deducted from the words actually used therein that the parties had agreed
on a particular term, there is nothing in law, which prevents them from setting up that term. 83 The terms of a
Page 19 of 51
S. 8 (A).
contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either
of the parties adversely. 84 In construing a contract, the Court must look at the words used in the contract unless
they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is
very little the Court can do about it. 85 With a view to ascertain the nature of a transaction the document has to be
read as a whole. A sentence used or a term used may not be determinative of the real nature of transaction. 86
Where the consequences of the revocation of a licence are penal in nature, such penal provision is required to be
strictly construed. 87
In construing a document it is always necessary to find the intention of the party executing it. The intention has to
be gathered from the recitals and the terms in the entire document and from the surrounding circumstances. How
the parties or even their representatives-in-interest treated the deed in question may also be relevant. It is also well
settled that the nomenclature given to a document by the scribe or even by the parties is not always conclusive.
The word " otti ", as such, used in the document, was not held of much consequence. 88 When there are some
mixed elements in an instrument disclosing features of mortgage as well as of lease, the Court will have to find out
the predominant intention of the parties executing the document viewed from essential aspect of the reality of the
transaction. 89 Even though the word "otti" was used in the document, the possession of the land was given to the
transferee for a period of 72 years and the transferee was given liberty to appropriate the income of the land
towards the interest on the advance given, he was to pay the land revenue also, the transaction was held a lease
and not a mortgage. 90 It is the intention of the parties and not the opinion of lawyers, which should weigh in
construing true meaning of the deed. 91
A piecemeal reading of the document either of recital or operative portion or the covenants cannot bring about a fair
and proper construction of a document. 92 A document must be construed in its entirety. 93
To find out the intention of the parties from the language that can be gathered from the recitals in the deed itself. If
the words are express and clear, effect must be given to them and an extraneous enquiry into what was thought or
intended is not permissible. The real question is what is the legal effect of the words used by the parties in the
deed. If there is no ambiguity in the language employed in the deed, the intention, that is found from the language
without any straining there of must be given effect to. If, however, there is ambiguity in the language used in the
document, then the intention may be ascertained from the contents of the deed with such extrinsic evidence as may
be admissible in law to show in what manner the language of the deed was related to the existing facts. 94 Oral
evidence is not admissible in interpreting the terms of the deed. Evidence of contemporaneous conduct is
admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is not admissible.
95 Surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and
not otherwise. 96
It is well established that a document must be read as a whole. In a document meant for a transfer of ownership,
the purpose is generally stated clearly to be that the property given will be owned and possessed henceforth by the
donee in such a way that he could use it or deal with it as he liked. 1 A transfer of ownership would in the ordinary
course, be expected to be evidence by much more clear and unequivocal language. The appropriate proceeding
after a gift is that of mutation in Municipal records. 2
The preamble of a document would not control its operative part. 3 The form of transaction would not be ignored. 4
The golden rule of construction is to ascertain the intention of the parties to the instrument after considering all the
words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of
the document as a whole and also to take into account the circumstances under which the particular words were
used. 5 When the property is given by father to both the daughters under a single document with a direction to them
Page 20 of 51
S. 8 (A).
to enjoy in "equal shares" the produce from the said property till their male issues attain their ages of majority, it is
to be construed that the intention of the father is to benefit in equal measure the two branches, namely, each
branches represented by each of his two daughters. 6
Very often the status and the training of the parties using the words have to be taken into consideration. Very many
words are used in more than one sense and that sense differs in different circumstances. Again, even where a
particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense
in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation
of the word when used by one who is not so equally skilled in the art of conveyancing. 7 Some times it happens in
the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary
instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar
instance of this is where in an earlier part of the document some property is given absolutely to one person but later
on, other directions about the same property are given which conflict with and take away from the absolute title
given in the earlier portion. It is well settled that in case of such a conflict the earlier disposition of absolute title
should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the
title already given. 8 An attempt should always be made to read the two parts of the document harmoniously, if
possible; it is only when this is not possible, e.g. , where an absolute title is given in clear and unambiguous terms
and the later provisions trench on the same, that the later provisions have to be held to be void. 9
A document may be partly testamentary and partly immediately effective as settlement. Intention has to be gathered
from the document itself. 10
In construing documents, the usefulness of precedents is usually of a limited character; after all Courts have to
consider the material and relevant terms of the document with which they are concerned; and it is on a fair and
reasonable construction of the said terms that the nature and character of the transaction evidenced by it has to be
determined. 11
The true nature of document cannot be disguised by labeling it something else. 12
In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from
the words used; the surrounding circumstance are to be considered but that is only for the purpose of finding out
the intended vide. 13
If the terms of the conveyance are clear, they would override the contract, but if part of the conveyance is to be
rejected it is legitimate to lean towards the rejection of that part which is inconsistent with the contract. 14
Where one brother relinquished his share in suit property in favour of his brotherpetitioner, later petitioner applied
for deletion of the name of the brother from the records of right, rejection of the prayer was held not proper as a
release deed or relinquishment deed cannot be said to be a conveyance deed. 15
Where there is transfer of interest in favour of the settlees on the date of execution, it is a deed of settlement and
not a Will. 16
Page 21 of 51
S. 8 (A).
The cardinal principle in construing the terms of Wills and other instruments is that clear and unambiguous
dispositive words should be given their full effect and should not be controlled or qualified by general expression of
intention. The Court is not concerned with what the parties intended but with the meaning of the words used and if
the language is clear and consistent it should receive its literal construction unless there is something in it to
suggest a departure from it. 17 Simply because a grant is in favour of a Hindu female, there is no presumption that it
is in respect of a life estate. Merely because a document recites the purpose to be one for maintenance, this cannot
be the decisive factor to constitute the document as a life grant, if the words "disposing of the property" clearly
indicate that it is in respect of the absolute interest of the donor. The fundamental rule in construing a document is
to construe it as a whole in order to reach the intention of the donor. 18 The intention must be gathered from the
words used in the document, if they are unambiguous, the surrounding circumstances are to be considered only for
the purpose of finding out the intended meaning of the words, which have actually been employed. 19
Where it was stated in the deed that the transferor required money to pay hand loans and therefore was conveying
property by way of absolute sale, on receipt of consideration before Registrar (Registration), vacant possession of
the property was also delivered and it was also stated in the deed that title interest henceforth will be enjoyed by the
transferee, hitherto enjoyed by the transferor, there was no deed for reconveyance, the deed was held out and out
sale. 20
Misconstruction of a document is not a ground of second appeal. 21 When a sentence in a document can be
interpreted in two ways and the trial Court has interpreted the same in one way, the appellate Court is not justified
in interpreting the same in a different way without any supporting evidence. 22
Where two documents are executed at the same time, merely because on the disputed document, the marginal
witnesses are different, it cannot be inferred that the disputed document is a forged one. May be it would be more in
line with the normal behaviour that there would be common marginal witnesses in such circumstances. But it cannot
be ruled out that each set of parties to a document may prefer to have witnesses of their own choice and liking. 23
Construction of one document cannot be an authority for construction of another; each case depends on the terms
of the document in a particular case. 24
Where the document was named as an agreement for sale, the vendor and not the vendee was to bear the
expenses of the execution of the sale deed, the sale deed was to be executed within a period one year, the
document was held not an agreement for sale but simply a bond for the loan paid. 25
The best interpretation is made from the context. Every contract is to be construed with reference to its object and
the whole of its terms. The whole context must be considered to ascertain the intention of the parties. In the
construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if
that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter
to which it was designed and intended they should apply. 26
There is no doubt, a discernible difference between the case of settlement of property with reservation of a benefit
to the settlor on the one hand and the case where what is settled is only a share or interest or part of the property,
excluding the part or the share corresponding to the benefit that the settlor has chosen to retain. There is, indeed,
no transfer at all in the latter case. 27 Lord Radcliffe brought out his distinction between what was transferred and
what was retained :
Page 22 of 51
S. 8 (A).
"...It is the possession and enjoyment of the actual property given that has to be taken account of, and that if that
property is as it may be, a limited equitable interest or an equitable interest distinct from another such interest which
is not given or an interest in property subject to an interest that is retained, it is of no consequence for this purpose
that the retained interest remains in the beneficial enjoyment of the person who provides the gift..."
Where the deceased executed certain trust deeds and transferred certain properties to himself for the conduct of
the daily worship and sewas of deity and other charitable trust, it was also provided in the trust deeds that share in
the income from the properties was to be used for the worship of the deity, it was held that the subject matter of the
trust deeds was the whole properties of which the trust was created and not only shares in the income of the
property. 28
The question whether a document is an instrument of transfer depends on the construction of the document itself,
and not on the question whether in fact portion has been made or not. 29
Where in a partition deed, the father is given life interest in his share with full rights to transfer the property in his life
time but the son and daughters are given absolute right/interest in the property in case the father has not disposed
of his interest during his life time, the interest of the son and daughters is vested interest and not contingent
interest. The deed has to be read a whole to gather the intention of the party. The sons and daughters had vested
interest and not contingent as the death of their father was certain to happen, they would become entitled to actual
possession of the property. 30
Where a partition deed divides the property and earlier clause gives power to a sharer to transfer the property, a
later clause in the deed unless that expressly debars a sharer from transferring the property cannot put fetter on the
power of a co-sharer to transfer/alienate the property. 31
The cardinal rule of construction is that a document must be read as a whole with a view to arrive at a harmonious
interpretation. 32 The substance of the transaction as disclosed by whole of the instrument has to be looked to and
not merely the operative part of the instrument. 33 When both parties give a particular form to a transaction different
from its real nature, the Court may tear of the veil and take into account its real nature. Courts, in such cases are
not bound by the outward appearance of the transaction. In a case of possessory mortgage with a
contemporaneous lease back, when the rent was equal to the amount of interest on mortgage, the Court was held
entitled to look to the transaction different from its nature so expressed in the deeds. 34 The name given by the
parties to a document is not conclusive as to its real legal nature and effect. Name given by the parties who were
zamindars and not professional traders, to a document is not conclusive as to its real legal nature and the effect
where the language used in the document is unambiguous and clear, the real nature of the document is to be
determined by its contents, uninfluenced by any intention of the party. The question about the intention of the
parties, in order to determine the real nature of a document, becomes relevant and material only if the language of
the document is vague or ambiguous. 35
When a document uses both the expressions "release" as well as "transfer", the name given to the document is
wholly irrelevant and object sought to be achieved should be employed to find its true meaning. 36 Whether a deed
described as "Kanyadharam" was a Kanom or a mortgage would depend upon a true interpretation of the
document. For finding out whether a deed was a Kanom or a mortgage with possession, the true object for which
the transaction was entered into should be looked into. 37
Page 23 of 51
S. 8 (A).
If the agreement between the parties were arrived at with the intention that one of them would apply for allotment in
his favour and if and when he becomes a valid tenant, the term of that agreement would determine the terms of
tenancy between the parties, then the earlier agreement by itself would not create tenancy. 38
The question whether property in the hands of sons is ancestral or their individual one has to be decided on the
intention of the father, which, will have to be gathered from the terms of the language he has employed in
expressing his wishes as to the disposition of the property. Though description of the transaction in the document
cannot be ignored, it cannot be decisive on the intention relating to the character of the transaction. In ascertaining
the intention, one must bear in mind that there should be no pre conceived approach and the words would have to
be read and understood in their plain meaning without reference to any presumption of any kind. 39
The question whether a document amounts to an absolute dedication of property in favour of a charity or whether it
is merely a charge on the property cannot be decided purely on a consideration as to who takes the surplus after
meeting the expenses of the charity, but has to be decided on a conspectus of all the terms thereof in the light of
the numerous circumstances. The fact that some amounts are to be paid out of the surplus, found after meeting the
expenses of the charity does not mean that what is given to the charity is merely a charge on the property and that
the relatives of settlor could take the property. 40
In construing an instrument, reference must be made to the general scope of the intention of the instrument, the
nature of the transaction and the legal rights, and situation of the party’s interested. Grammatical construction
should not be strictly followed, if the meaning of the instrument is apparent. 41 The golden rule of construction is
that the words are to be construed according to their natural meaning unless such a construction would either
render them senseless or would be opposed to the general scope and intent of the instrument or unless there be
some very cogent reason of convenience in favour of a different interpretation. 42
Deed of partnership has to be read as a whole and construed reasonably. 43 The right approach would be to read
the document as a whole, not to each clause as an isolated provision, and to construe the document in the light of
all the provisions therein, trying as far as possible to give effect to all the provisions and seeing whether the
apparently conflicting provisions could be reconciled with each other and rejecting only such provisions as are really
inconsistent with the intentions of the parties as gatherable on a reading of the whole document. 44 The real test as
to whether a document is a partition or only a maintenance arrangement is the intention of the parties who executed
it and that their intention has to be gathered on a reading of the document as a whole and not by reading isolated
passages, intention is the real test in such cases. 45
If a transaction is contained in more than one document between the same parties, then all the documents must be
read and interpreted together. 46
Business efficacy test. —The principle of business efficacy is normally invoked to read a term in an
agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent
businessmen. Business efficacy means the power to produce intended results. The business efficacy test, should
be applied only in cases where the term that is sought to be read as implied is such which could have been clearly
intended by the parties at the time of making of the agreement. 47
Subsequent events, conduct of parties. —Subsequent events or conduct of parties after the
execution of the document shall not be taken into consideration in interpreting a document especially when there is
Page 24 of 51
S. 8 (A).
no ambiguity in the language of the document. But one may refer to those events also only to re-enforce the fact
that there is no ambiguity in the language employed in the document. 48
Doctrine of false demonstration. —The doctrine of false demonstration, which has been often
described as the blue pencil theory, authorizes a Court in certain circumstances to strike out from a deed a few
repugnant and insensible words. But where the words in themselves are quite sensible and the document taken at
its face value is perfectly consistent, the Court cannot ignore the plain meaning of the document and strike out a
few words only to make the document conform to the actual facts of the case. The Court’s power is confined to
correct such in consistency and insensibleness as appears from intrinsic evidence. The wrong grammar or spelling
may be corrected, words that are merely insensible or that are repugnant or that have been obviously left in by
mistake or that have been immaterial and surplusage and whole provisions may be rejected. Alterations can be
done only when clearly required to avoid absurdity, repugnancy or inconsistency. 49 Where on a construction of the
sale deed, it is clear that intention of the parties is to sell a parcel of the land within well-defined boundaries, any
erroneous statement regarding its extent should be rejected as falsa demonstratio . 50
Construction of trust. —Where the trust deed bestowed similar interests on the grandsons in the trust
property, the trust deed had been executed by both female and male members of the family, principles of Hindu
Law regarding devolution of property in the case of property passing father to his son and grandson cannot be
invoked. 51 Normally when the Court interprets the trust deed or wakf deed, they should give due importance to the
wishes of the wakf , only in exceptional cases the intention of the author to be deviated. 52
Where a trust was executed whereby a trust was set up to preserve sacred fire and fire temple forever, provision
was also made for the house and building for the residence of the priest, it could not be interpreted that the house
and building at the present site could not be shifted, re-allocated or redeveloped. The provisions of the trust could
only be interpreted to mean that the place for the residence of the priest was earmarked, the same had to be
preserved. 53
Grant—Rules of construction. —The tests laid down for constructing the words of grant in favour of a
male and female under the Hindu law are not different. The words employed for a grant in favour of a male Hindu
would connote the same meaning as those employed for the grant in favour of a female Hindu and vice versa .
Section 8 of the T.P. Act no doubt contemplates the case of transfer inter vivos by the act of parties; but
the principle is the same in respect of transfer mortis causa or one which materializes by virtue of any order or
decree of a Court. 54
Conflict between area and boundary of the property. —In the event of conflict between area and the
boundary of the property given in a deed, description of the boundary would prevail. 55
Description of the property in the deed. —There can be no doubt that the description of the property
to be sold is essential to the validity of the agreement. Ordinarily, it may be inserted in the body of the deed or in the
schedule annexed to the deed. If the description is short and, therefore, may conveniently be entered in the body of
the deed, there may not be any objection to such incorporation. The description of the property to be sold should,
however, be sufficient for the purpose of identification of the property. The area, situation, and holding or premises
number should be given, the character of the land, the boundaries thereof, its existing or former occupancy may
sometimes be necessary. The conveyancer would do well to insert such description of the property as is in
conformity with the provisions of Sections
Section 21 and
22 of the
Page 25 of 51
S. 8 (A).
Registration Act, 1908 .56
On the facts of the case it was found that the details of the land sought to be transferred by an agreement of sale
were sufficient to find out the location of the land. 57
Maps. —Maps not annexed to the sale deed cannot be deemed to be a part of the sale deed by
incorporation or otherwise. 58
Conditional and restricted transfer distinguished. —Now the general principle embodied in
Section 8 of the Transfer of Property Act is that, a grant prima facie carried with all the legal incidents
thereof, but that it may be modified according to the wish of the parties, the maxim being modus at conventio
vincunt legem —the form of agreement and the convention of parties overrule the law. Where a grant does not
carry with it all the legal incidents thereof, but is modified by conditions and restrictions, it is a conditional or
restricted transfer. Where however it carries with it all the legal incidents thereof, it is an absolute transfer. 59
The distinction between the conditional or restricted transfer and an absolute transfer has relevancy because they
produce different results. In cases where a conditional or restricted transfer is made, whether such condition or
restriction is prior or subsequent, the transfer is defeated, if the condition or restriction in either case is not satisfied.
Whereas in cases of absolute transfers, the property with all legal incidents passes to the transferee. If the terms of
the transfer in such case at the same time direct that the property is to be enjoyed with certain restrictions, the
restrictions are to be disregarded. The reason is that the direction restricting the enjoyment of the property is
inconsistent with or repugnant to the intention to make an absolute transfer, that is, a transfer which will carry with it
the right of unrestricted enjoyment of the property as a legal incident thereof, and, since the Court cannot give effect
to both at the same time, the main provision will be given effect to and the repugnant one disregarded. 60
Whether a particular document evidencing transfer of property is a conditional or restricted transfer or is an absolute
transfer must necessarily depend upon the contents of the document itself. 61
Discrepancy between survey plot number and boundary. —Where dispute arises about the identity
of the land, in case of discrepancy between survey plot number and boundary, the boundary prevails. The mistake
in plot number would be treated as a misdescription and identity should be established with reference to
boundaries. 62
Construction of Will. —Where the Will provided that the entire property should be in the possession of
both the foster children, both of them should enjoy through out their life time the said property and that after their
death the children that may be born to them should enjoy the same, it was held that the joint tenancy unknown to
the Hindu law could not be spelled out of the construction of the Will. 63
The operative part of a document or its legal effect cannot be controlled by the preamble of the document. 64
Partition deed. —A partition deed was executed by an illiterate lady. She deposed before the Court that
she did not understand purport and content of partition deed and same was executed by her on fraud and
Page 26 of 51
S. 8 (A).
misrepresentation perpetrated by her son. The scribe of the deed was not examined as a witness. There was no
endorsement on deed that the deed was "read over and explained" to the executant lady. In the deed shares were
not allotted properly and proportionately. Simply because executant lady had come along with her sons when she
had executed said deed, it could not be said that she knew the contents of partition deed when it was being
executed. Held, the partition deed was void and would be set aside. 65
Partnership deed/licence. —The language of the document has to be seen for determining whether
the document in question is a partnership or a license. Where the plaintiff contributed the land and the defendant
constructed the cinema building, the business was to continue for a period of 42 years as stipulated in the deed, it
was held that the document was a partnership deed and not a mere license deed to use the land. 66
Hypothecation and Hire Purchase Agreement. —The distinction between hypothecation and a hire
purchase agreement is that while the former is the species of a pledge where possession is transferred from the
pawner to the pawnee; a hire purchase is a bailment with an option to purchase. The latter sometimes includes an
irrevocable agreement to buy on instalment terms with the proviso that the title shall not pass until the instalments
are paid. The transaction is compounded of the element of both the law of hire and sale and it would be wrong to
assimilate it to a hypothecation of movable property. Where the agreement is only a device or cloak to conceal a
loan, it is open to the Court to ascertain the real transaction. 67
Commercial document. —Commercial documents must be construed in a manner as an understood in

commercial parlance. A commercial document must be read reasonably, it must be construed in such a manner so
that it made so workable. 68
Allotment of flat/land by Development AuthorityExemption clause.— Where the eligibility condition

provided that the applicant should not own property in Delhi, but if individual share of the applicant in the jointly
owned plot or land under the residential house is less than 65 sq.m., an application for allotment of plot can be
entertained. Persons who own a house or a plot allotted by the Delhi Development Authority on an area of even
less than 65 sq.m., shall not, however, be eligible for allotment. Since the flat acquired by the applicant measured
only 62.22 sq.m., which was less than 65 sq.m., the applicant was entitled to the allotment of the flat made by the
Development Authority. The Court held that though the intention of Development Authorities in general is to allot
plots to the houseless, the policy and scheme has to be given effect with reference to the specific wording of the
eligibility provision. The Development Authority chose to make the eligibility clause subject to an exemption. If it
chose to exempt certain categories, such exemption has to be given effect. When the term of exemption is specific
and unambiguous, it is not possible to restrict its applicability or read into it, a meaning other than the plain and
normal meaning, on the assumption that the general object of the Scheme was different from what is spelt out in the
term. 69
Miscellaneous. —Unless the right of re-conveyance is personal, the assignee can seek specific
performance of the deed of re-conveyance. 70
Sub-section (6) of
Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 is not inconsistent with
Sections 8 ,
48 and
109 of the
Transfer of Property Act, 1882 . On the other hand, sub-section (6) of
Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
Page 27 of 51
S. 8 (A).
2002 is in tune with

Sections 8 ,
48 and
109 of the
Transfer of Property Act, 1882 .71
Where the rights and liabilities or the legal position of the parties in the original sale deed and the agreement to re-
convey were the same, the agreement to re-convey was not held void because some interpolation of words had
been made in it. 72
In respect of covenants which run with the land which includes rent accrued after transfer, the transferee gets all the
lessor’s rights by virtue of sections 8 and 109 and the relationship of landlord and tenant is created between the
transferee and the selling lessee by statutory attornment and no contractual attornment is necessary. 73 Where the
sale deed recited that only symbolic and not actual possession was delivered to the vendee, the defendant’s case
that the vendor was in possession of the land and he transferred to the vendee was disbelieved. 74
Though the presumption available under law "possession follows title", is not absolute, where the property of its
very nature would not admit of, actual or exclusive possession, like a kattapuni (ridge) accessible to all alike, that
principle can definitely be applied especially where it is proved that the plaintiff has title over the property and, in
fact, over a major portion thereof such title was obtained from one of the contesting defendants and the conveyance
deed speaks of transfer of possession with the title. 75
80 Nadupari narayana v. Ijjada Narayana ,

AIR 2002 AP 387 [
LNIND 2002 AP 164 ] (388, 389) :
2002 (3) Andh LT 681 [
LNIND 2002 AP 164 ].
81 Prabhat Kumar v. Tahara Khatun ,

AIR 1978 Ori 219 [
LNIND 1977 ORI 32 ] (221).
82 State of A.P. v. Mohd. Ashrafuddin , AIR

1982 SC 913 (915) :
(1982) 2 SCC 1 [
LNIND 1982 SC 61 ].
83 AIR
1982 SC 913 (915) :
(1982) 2 SCC 1 [
LNIND 1982 SC 61 ].
84 Rajammal v. Mookan , AIR

1981 SC 1664 (1667, 1668) :
(1981) 3 SCC 518 [
LNIND 1981 SC 330 ].
Page 28 of 51
S. 8 (A).
85 Jugal Kishore v. Raw Cotton , AIR

1955 SC 376 (383) :
1955 (1) SLR 1369 .
AIR 1957 AP 619 [
AIR 1957 AP 619 [
88 Conveyancing and Law of Property Act, 1881 (44 and 45 Vict. c. 41).
89 Ex-parte Dawes, in re Moon,

(1886) 17 QBD 275 .
90 Thellusson v. Liddard , (1900) 2 Ch. 635.
91 Inderjeet v. State of H.P .,

1995 AIHC 1003 (1038, 1039) (HP-DB).
92 Asghar Reza Khan v. Mahomed Mehdi Hoosein Khan,

(1903) 30 Cal 556 : 30 IA 71.
93 Kalidas Mullick v. Kanhaya Lal ,

(1885) 11 Cal 121 : 11 IA 218.
94 Tituram v. Cohen ,
(1906) 33 Cal 203 : 32 IA 185.
95 Raja Deo v. Brahmdeo Rai ,

AIR 1937 All 235 .
96 Municipal Corporation, Jodhpur v. Rajendra Bhandari , AIR

2001 Raj 9 (13) :
2000 (2) Raj LR 644 :
2000 (3) Raj LW 1611 .
1 Bishundeo Narain Rai v. Anmol Devi , 1998 AIR

SC 3006 (3009) :
(1998) 7 SCC 498 [
LNIND 1998 SC 781 ] ; Ashok Kumar v. Chief Controlling Revenue Authority,
Allahabad ,
AIR 2011 All 142 [
LNIND 2011 ALL 61 ] (145, 146).
Page 29 of 51
S. 8 (A).
2 Bishundeo Narain Rai v. Anmol Devi , AIR

1998 SC 3006 (3010, 3011) :
(1998) 7 SCC 498 [
LNIND 1998 SC 781 ].
3 Swamy Metal Works v. T.M. Sarangapani ,

1999 AIHC 4481 (4484, 4485) (Mad).
4 Ashok Kumar v. Chief Controlling Revenue Authority, Allahabad,

AIR 2011 All 142 [
LNIND 2011 ALL 61 ] (145, 146) : 2011 (114) Rev Dec. 8.
5 Gangabai v. Sonabai , (1916) 40 Bom 69, 73(n); In re Venn & Furze’s Contract , (1894) 2
Ch. 101.
6 Mithibai v. Meherbai , (1922) 46 Bom 162 ; Bijraj Nopani v. Pura Sundary Dasee ,
(1915) 42 Cal 56 : 41 IA 189.
7 Sahu Har Prasad v. Fazal Ahmad ,

(1933) 55 All 83 m : 61 IA 116.
8 Wutzler v. Sharpe ,
(1893) 15 All 270 ; Santosh Kumar Dey v. Jayanti Sanyal , 2005 (1) Cal HN 423
(430) :
2006 (1) Cal LJ 244 [
LNIND 2005 CAL 481 ] (Cal).
9 Ahmad Ali v. Dhandba , (1937) Nag LR 204.
10 International Teas Stores Co. v. Hobbs , (1903) 2 Ch. D 165; Vishnu v. Rangi Ganesh ,
ILR 18 Bom 382; Rajpur Colliery Co. v. Pursottam ,
AIR 1959 Pat 463 (471) (DB) : (1959) 38 Pat 443.
11 Nadupari Narayana v. Ijjada Narayana ,

AIR 2002 AP 387 [
LNIND 2002 AP 164 ] (388, 389) :
2002 (3) Andh LT 681 [
LNIND 2002 AP 164 ].
12 Bibi Hamida Khatoon v. Panchayat of Mohalla Daryapore ,

AIR 1947 Pat 122 : 225 IC 532.
13 Chinna Poojari v. K. Ramasami ,

AIR 2007 NOC 1795 (Mad).
14 Santosh Kumar Dey v. Jayanti Sanyal , 2005 (1) Cal HN 423 (430) :
2006 (1) Cal LJ 244 [
LNIND 2005 CAL 481 ] (Cal).
Page 30 of 51
S. 8 (A).
15 Katihar Jute Mills v. Calcutta Match Works ,

AIR 1958 Pat 133 (142) (DB).
16 Ramachandra Despande v. Laxmana Rao Kulkarni ,

AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (306) (DB) :
2000 (5) Kant LJ 477 [
17 Ramachandra Despande v. Laxmana Rao Kulkarni,

AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (306) (DB) :
2000 (5) Kant LJ 477 [

AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (307) (DB)
ILR 2000 (Kant) 2341 [
19 Ramachandra Despande v. Laxmana Rao Kulkarni

,
AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (307) (DB); Muthukaruppa Pillai v. Ganeshan , (1995)
Suppl (3) SCC 69; Kanhaiyalal v. Babu Ram,
(1999) 8 SCC 529 .

AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (308) (DB) :
2000 (5) Kant LJ 477 [
21 Bhogilal v. Jethalal ,
(1928) 30 Bom LR 1588 .
22 Sheo Gobind v. Gouri Prasad ,

AIR 1925 Pat 310 .
23 Peru Bepari v. Ronuo Maifarash ,

(1885) 11 Cal 164 .
24 Purushottama v. Municipal Council of Bellary , (1891) 14 Mad 467.
25 Queen-Empress v. Shaik Ibrahim , (1890) 13 Mad 518.
26 Narayana v. Balaguruswami ,
AIR 1924 Mad 187 [
LNIND 1923 MAD 125 ].
Page 31 of 51
S. 8 (A).
27 Prabhu Mal v. Banwari Lal ,

AIR 1927 Lah 351 .
28 Narayan v. Vithoba , (1927) Nag LR 177.
29 Krishna Kumari v. Rajendra ,

AIR 1927 Oudh 240 .
30 Ganapati v. Sonaji , (1924) Nag LR 96 ; Hiria v. Mahomed , (1908) 4 Nag LR 104.
31 Jagmohan Singh v. Emperor ,

AIR 1932 Pat 344 .
32 Cornish v. Cleife , (1864) 34 LJ Ex. 19 : 159 ER 605.
33 Yorkshire Insurance Co. v. Clayton,

(1881) 8 QBD 421 .
34 Moor v. Denn , (1800) as reported in 2 Bos. & P. 247 : 126 ER 1263.
35 Colebrooke v. Tickell , (1836) 4 Ad. & El. 916 : 111 ER 1028.
36 B.N. Murthy & Sons v. V.V. Suguna ,

AIR 1978 AP 257 [
LNIND 1977 AP 52 ] (262) (DB).
37 Veerappa v. Ma Tin , AIR 1925 Rang 250 ; Narayana v. Balaguruswami ,

AIR 1924 Mad 187 [
LNIND 1923 MAD 125 ].
38 Strode v. Blackburne , (1796) 3 Ves. 222 : 30 ER 979; Harrington v. Price , (1832) 3 B. &
Ad. 170 : 110 ER 63; Shri Bhavani v. Devrao , (1887) 11 Bom 485.
39 Newton v. Beck , (1858) 27 LJ Ex. 272 : 157 ER 452.
40 Vimal Chand Ghevarchand Jain v. Ramakant Eknth Jadoo,

(2009) 5 SCC 713 [
LNIND 2009 SC 646 ] (730) :
(2009) 5 SCALE 59 [
LNIND 2009 SC 646 ] :
(2009) 4 SCR 794 .
41 Subbaraju v. Seetharamaraju , (1916) 39 Mad 283.
42 Krishna Mohan v. Bal Krishna Chaturvedi (D) by LRs,

AIR 2001 All 334 [
LNIND 2001 ALL 624 ] (338) : 2001 All LJ 2532.
Page 32 of 51
S. 8 (A).
43 Sambasiva Iyer v. Venkatarama ,

AIR 1926 Mad 903 [
44 Abdul Aziz Khan v. Appayasami Naicker , (1904) 27 Mad 131 : 31 IA 1.
45 Ma Hawa Bi v. Sein Kho , AIR 1928 Rang 67.
46 Hariharan v. Narayan ,
AIR 1933 Mad 482 [
LNIND 1932 MAD 286 ].
47 Jatindra Nath v. Narayan Das ,

AIR 1925 52 Cal 862 ; Maharaja Surja Kanta v. Sarat Chandra ,
(1914) 18 CWN 1281 .
48 Nityahari Roy v. Dunne ,

(1891) 18 Cal 652 .
49 Dhanpat v. Pasput ,
(1931) 53 All 764 ; Luchmessur Singh v. Leelanund Singh ,
(1878) 4 Cal 599 .
50 Metropolitan District Ry. Co. v. Cosh , (1880) 13 Ch. D. 607.
51 15 Geo. 5, C. 18, Section 117, clause (1) sub-clause (19).
52 Newton Chambers & Co., Ltd., v. Hall,

(1907) 2 KB 446 ; Mitchell v. Moseley , (1914) 1 Ch. 438.
53 Attorney-General v. Morgan , (1891) 1 Ch. D. 432; The Case of Mines , (1568) 1 Plowd
310.
54 8 & 9 Geo 5 : C. 52.
55 1 of 1894, Section 3 (a).
56 Shashi Bhusan v. Jyoti Prasad ,

(1917) 44 Cal 585 : 44 IA 46; Hari Narayan v. Sriram Chakravarti ,
(1910) 37 Cal 723 : 37 IA 136; Durga Prasad v. Brojoho Nath ,
(1912) 39 Cal 696 : 39 IA 133; Tituram Mukerji v. Cohen ,
(1906) 33 Cal 202 : 32 IA 185.
57 Gobindanarayan v. Shyamlal Singh ,

(1931) 58 Cal 1187 : 58 IA 125.
Page 33 of 51
S. 8 (A).
58 Raj Kumar Thakur v. Megh Lal ,

(1918) 45 Cal 87 : 44 IA 246; Hari Narayan v. Sri Ram Chakravarti ,
(1910) 37 Cal 723 : 37 IA 136; Durga Prasad v. Brojo Nath ,
(1912) 39 Cal 696 : 39 IA 133; Shashi Bhusan v. Jyoti Prasad ,
(1916) 44 Cal 585 : 44 IA 46.
59 (1889) 16 CLJ 7.
60 Satya Niranjan v. Ram Lal , (1924) 4 Pat 244 : 52 IA 109.
61 Rajeswar Prosad v. Anil Kumar Roy ,

(1928) 55 Cal 35 .
62 Bejoy Singh v. Surendra Narayan Singh ,

(1929) 56 Cal 1 : 55 IA 320.
63 Bhupendra Narayan v. Rajeswar Prosad ,

(1932) 59 Cal 80 : 58 IA 228; Bejoy Singh v. Surendra Narayan ,
(1929) 56 Cal 1 : 55 IA 320; Giridhari Singh v. Megh Lal Pandey ,
(1918) 45 Cal 87 : 44 IA 246.
64 Bageswari Charan v. Kumar Kamakhya Narain , (1931) 10 Pat 296 : 58 IA 9; See also
Onkarmal v. Bireswar ,
AIR 1959 Cal 195 [
LNIND 1957 CAL 71 ] (DB) :
(1959) 61 CWN 970 . (Mineral rights vest in the Government).
65 Cox v. Glue , (1848) 5 C.B. 533; Rowbotham v. Wilson , (1857) 8 E. & B. 123.
66 Nageshwar Bux Roy v. Bengal Coal Co., Ltd. , (1931) 10 Pat 407 : 58 IA 29.
67 Chaladom Tholan v. Kakkath Kunhambu , (1902) 25 Mad 669.
68 Jatindra Nath Roy v. Narayan Das ,

(1925) 52 Cal 862 .
69 Jatindra Nath Roy v. Narayan Das ,

(1925) 52 Cal 862 ; Takoor Chunder Poramanick v. Ramdhone Bhattacharjee ,
(1866) 6 W.R. 228; Shib Dass Banerjee v. Bonun Doss Mookerjee , (1871) 15 W.R. 360.
70 Asghar Reza Khan v. Mahomed Mehdi Hoosein Khan ,

(1903) 30 Cal 556 ; Macleod v. Kissan , (1906) 30 Bom 250.
71 Mammunhi v. Kunhib ,
AIR 1961 Ker 147 : (1959) 3 KLJ 1349 (DB) :
ILR 1960 Ker 115 ; (
AIR 1953 TC 349 & AIR
1927 PC 135 relied on ).
Page 34 of 51
S. 8 (A).
72 Nafar Chandra v. Ram Lal ,

(1895) 22 Cal 742 .
73 Janki v. Sheoadhar ,
(1901) 23 All 211 ; Kausalia v. Gula Kunwar ,
(1899) 21 All 297 ; Imdad Khatun v. Bhagirath ,
(1888) 10 All 159 ; Ajudhia Nath v. Sital ,
(1881) 3 All 567 .
74 Pandurang v. Bhimrav , (1898) 22 Bom 610.
75 Chaturbhuj v. Bennett , (1905) 29 Bom 323.
76 Badam v. Ganga Dei ,

(1907) 29 All 484 .
77 V.P. Fakrudheen Haji v. State Bank of India,

AIR 2009 Ker 78 [
LNIND 2008 KER 696 ] (83) (DB) :
2009 (1) KLT 322 [
LNIND 2008 KER 482 ].
78 Ashok Kumar v. Chief Controlling Revenue Authority, U.P., Allahabad, 2011 (5) All LJ
329 (332) (All).
79 Noble John v. State of Kerala,

2010 (3) KLT 941 [
LNIND 2010 KER 547 ] (953) (Ker) :
ILR 2010 (3) Ker 979 .
80 Macleod v. Kissan , (1906) 30 Bom 250.
81 Arunachellam Chetti v. Cubramanian Chetti , (1907) 30 Mad 235.
82 (1921) 44 Mad 196.
83 Elumalai Chetty v. Balakrishna Mudaliar , (1921) 44 Mad 965.
84 Imperial Bank of India v. Bengal National Bank ,

(1931) 58 Cal 136 : 58 IA 323.
85 Gulamhuseein v. Clara D’Souza , (1929) 53 Bom 819 ; Nim Chand v. Jagabundhu ,

(1894) 22 Cal 21 ; Mahalinga v. Ganapathi , (1902) 27 Mad 528.
86 Sehonandan Lal v. Zainal Abdil ,

(1915) 42 Cal 849 ; Sambasiva Iyer v. Venkatarama Iyer ,
AIR 1926 Mad 903 [
Page 35 of 51
S. 8 (A).
87 Seetaramayya v. Venkatta Bapamma , AIR 1955 NUC (Andhra) 5840. (AIR

1935 PC 108 : AIR
1931 PC 245 , relied on ).
88 Bhagirath Prasad v. Jamuna Devi ,

AIR 1950 Pat 211 .
89 Ram Sarup v. Girdhari Lal ,

AIR 1929 All 371 .
90 Narasimhulu Chetti v. S. Pandurangaiah Chetti ,

AIR 1996 AP 24 [
LNIND 1995 AP 306 ] (28, 29) (DB) :
1996 (1) Hindu LR 297 .
91 Commissioner of Wealth Tax v. Her Highness Maharani Gayatri Devi , AIR

1968 Raj 129 (DB).
92 Satyendra Narayan Banjerjee v. Puboli Bannerjee, (2012) 1 Cal LT 46 (Cal) : 2012 (113)
AIC 456 (Cal).
93 N.B. Subrahmanyam v. A. Hymavathi , AIR 1996

SC 2220 (2221) :
(1996) 9 SCC 388 [
LNIND 1996 SC 709 ].
94 Narasimhulu Chetti v. S. Pandurangaiah Chetti,

AIR 1996 AP 24 [
LNIND 1995 AP 306 ] (29) (DB) :
1996 (1) Hindu LR 297 .
95 Duraisami v. Saroja Ammal ,

AIR 1981 Mad 351 [
LNIND 1981 MAD 40 ] (353) : 1981 Legal Supr 79.

AIR 1981 Mad. 351 [

AIR 1981 Mad. 351 [
1 A. Sreenivasa Pai v. Saraswathi Ammal , AIR

1985 SC 1359 (1362, 1363) :
(1985) 4 SCC 85 [
LNIND 1985 SC 220 ].
Page 36 of 51
S. 8 (A).
2 Babaji Dehuri v. Biranchi , Ananta

AIR 1996 Ori 183 [
LNIND 1996 ORI 155 ] (187); Shehodhyan Singh v. Sanichara Kuer , AIR
1963 SC 1879 :
(1962) 2 SCR 753 [
LNIND 1961 SC 233 ] ; Dinbandhu Sathi v. Chintamani Sahu ,
AIR 1971 Ori 215 ; Dhoboi Behera v. Nabaghana Senapati , 1973 (2) CWR 1255.
3 S.G.H. Co-op. Housing Society Ltd. v. Addl. Collector, Bombay ,

AIR 1992 Bom 263 [
LNIND 1991 BOM 115 ] (267):
(1992) 1 Bom CR 126 [
LNIND 1991 BOM 115 ].
4 Mahadeo Prasad Agarwal v. State of West Bengal , 2002

AIHC 3002 (3004) (Cal).

(2001) 10 SCC 221 (224).

(2001) 10 SCC 221 (224, 225).
7 Vishwa Nath v. Ramraj ,

AIR 1991 All 193 [
LNIND 1990 ALL 107 ] (195) : 1991 All LJ 165.
8 Rajendran v. Chinnathambi Gounder ,

AIR 2007 NOC 1325 (Mad).
9 Nilkanth v. Ramchandra ,
AIR 1991 Bom 10 [
LNIND 1990 BOM 253 ] (15):
(1990) 3 Bom CR 328 [
LNIND 1990 BOM 253 ].
10 Hariram v. Ram Asrey ,

AIR 2006 All 331 (332) :
2006 AIHC 3725 .
11 Ali Bewa v. Sauri Bewa ,

1997 AIHC 535 (536) (Ori); Dhanalakshmi v. S. Thangavelu ,
AIR 2006 Mad 1 [
LNIND 2005 MAD 1433 ] (4) :
2006 AIHC 542 : 2005 (4) Mad LJ 300.
12 Lakshmi Narain Barnwal v. Jagdish Singh ,

AIR 1991 Pat 99 (105); Harbans Singh v. Tekamani Devi ,
AIR 1990 Pat 26 : (1989) 2 BLJ 587.

AIR 1991 Pat 99 (105).
Page 37 of 51
S. 8 (A).

AIR 1991 Pat 99 .
15 Harbans Singh v. Tekamani ,Devi

AIR 1990 Pat 26 (31) :
(1989) 2 BLJ 587 ; Sumitra Devi v. Smt. Sudha Devi @ Sudhiya ,
(2006) 1 BLJR 318 (323) (Pat-DB).
16 Harbans Singh v. Tekmaani ,Devi

AIR 1990 Pat 26 (31) :
(1989) 2 BLJ 587 ; Sumitra Devi v. Smt. Sudha Devi @ Sudhiya ,
(2006) 1 BLJR 318 (323) (Pat-DB).
17 Sumitra Devi v. Smt. Sudha Devi @ Sudhiya ,

(2006) 1 BLJR 318 (323) (Pat-DB); See also Sudama Devi v. Bibi Shalma Khatoon
,
(2007) 1 BLJR 505 :
(2007) 1 PLJR 573 (Pat); Mossomast Rampati Kuer v. Mostt Simreka Devi ,
2004 (2) PLJR 136 (Pat).
18 P. Ram Mohan v. Lalitha ,

AIR 1976 Mad 333 [
LNIND 1975 MAD 255 ] (336) (DB).
19 Kundan v. Ist Addl. District Judge, Bulandshahr

,
AIR 1990 All 121 [
LNIND 1990 ALL 106 ] (123); see also Fitrat Husain v. Liaqat Ali ,
AIR 1939 All 291 (FB) :
ILR 1939 All 518 ; Bhoop Singh v. Sri Ram ,
AIR 1940 All 427 (DB) :
ILR 1940 All 599 ; Mahmood Hasan Khan v. Bhikhari Lal,
AIR 1953 All 705 [
LNIND 1953 ALL 93 ] (DB) : 1953 All LJ 391.
20 Park View Enterprises v. State ,

AIR 1990 Mad 251 [
LNIND 1989 MAD 399 ] (282, 283) (DB) :
1989 TNLJ 375 .
21 Park View Enterprises v. State ,

AIR 1990 Mad 251 [
LNIND 1989 MAD 399 ] (282, 283) (DB) :
1989 TNLJ 375 .
22 K.V. Subba Rao v. Dist. Registrar of Assurances Guntur ,

AIR 1986 AP 42 [
LNIND 1985 AP 193 ] (44) (SB) :
(1985) 2 Andh LT 437 [
LNIND 1985 AP 193 ] : (1985) 3 APLJ (HC) 50.
23 K.V. Subba Rao v. Dist. Registrar of Assurances Guntur,

AIR 1986 AP 42 [
LNIND 1985 AP 193 ] (44) (SB) :
Page 38 of 51
S. 8 (A).
(1985) 3 AP LJ (HC) 50 [
LNIND 1985 AP 193 ].
24 K.V. Subba Rao v. Dist. Registrar of Assurances Guntur ,

AIR 1986 AP 42 [
LNIND 1985 AP 193 ] (50, 51) (SB) : (1985) 2 Andh LJ 437.
25 Bhairo Prasad v. Pradeep Kumar ,

AIR 1985 All 366 [
LNIND 1985 ALL 95 ] (367) : (1985) 1 All Ren Cas 464.
26 Sumathy Amma v. Sankara Pillai ,

AIR 1987 Ker 84 (86); Andiappa v. Meyyappan , AIR
1944 PC 80 : ILR (1945) KPC 4.

AIR 1987 Ker 84 (87).
28 Sumathy Amma v.
Sankara Pillai ,
AIR 1987 Ker 84 (87); Umrao Babu v. Ramkrishna Babu ,
AIR 1938 Nag 93 : ILR 1938 Nag 50 : 1721 C 678.

AIR 1987 Ker 84 (87, 88).
30 Mithu Khan v. Pipariyawali ,

AIR 1986 MP 39 [
LNIND 1984 MP 97 ] (40) :
1985 MPLJ 119 :
1985 Jab LJ 169 .
31 Mohammad Shaffi v. Tallai Ram , AIR 1985 P&H 121 (123) :

(1985) 87 PLR 142 [
LNIND 1984 PNH 156 ].
32 Mohammad Shaffi v. Tallai Ram , AIR 1985 P&H 121 (123) : ILR (1985) 1 (P&H) 368.
33 Narain Prasad Singh

v. State ,
AIR 1983 Pat 244 (245) (DB); Horne v. Struben ,
(1902) App Cas 454 ; Ghulam Sibtain v. Kaniz Khatoon , AIR 19 20 pat 383 (1); LPE
Pugh v. Ashutosh Sen, AIR
1929 PC 69 .
34 Khwaja Printing and Process Pali v. Rajastahn State Industrial Development &
Investment Corportion Ltd, Jaipur ,
AIR 1981 NOC 190 (Raj).
35 Nanak Chand v. Chander , Kishore

AIR 1982 Del 520 [
LNIND 1982 DEL 155 ] (526, 527); Peary Lal v. Rameshwar Das , AIR
1963 SC 1703 : 1963 Sup (2) SCR 834.
Page 39 of 51
S. 8 (A).
36 P. Ram Mohan v. Lalitha,

AIR 1976 Mad 333 [
LNIND 1975 MAD 255 ] (336, 337) (DB) : 89 Mad LW 175.
37 Purban Pvt. Ltd. v. Deb Kumar Shaw ,

AIR 1978 Cal 33 [
LNIND 1977 CAL 128 ] (37) (DB) : 81 CWN 953.
38 Ramaswami v. Gopalkrishna,
AIR 1978 Mad 54 [
LNIND 1977 MAD 54 ] (55) : 90 Mad LW 430 : (
ILR (1977) 3 Mad 311 [
39 Ramaswami v. Gopalkrishna,
AIR 1978 Mad 54 [
LNIND 1977 MAD 54 ] (56) : 90 Mad LW 430 :
ILR (1977) 3 Mad 311 [
40 Hardeo Rai v. Sakuntala Devi,

(2008) 7 SCC 46 [
LNIND 2008 SC 995 ] (52): AIR
2008 SC 2489 .
41 Finance Centre v. Ram Prakash ,

AIR 1977 NOC 269 : 1977 Kash LJ 218 (Kash).
42 Satyesh Chandra Banerjee v. Rani Banerjee ,

AIR 1977 Cal 509 [
LNIND 1977 CAL 169 ] (511).
43 Raja Gopal Pillai v. Pakkiam Ammal , AIR

1975 SC 895 (897) :
(1976) 1 SCC 299 .
44
1952 SCR 241 [
1952 SC 29 .
45 Baidyanath v. Jai Kumari ,

AIR 1957 Pat 706 (709) (DB) :
1957 BLJR 109 ; Sudhir Kumar v. Pribhuti Bhusan ,
AIR 1956 Cal 668 [
LNIND 1955 CAL 198 ]: 60 CWN 222.
46 Rajagopal Pillai v. Pakkiam Ammal , AIR

1975 SC 895 (897, 898) :
(1976) 1 SCC 299 .
Page 40 of 51
S. 8 (A).
47 Lakshman Naik v. Sushila ,

AIR 1968 Pat 274 .
48 Shriniwas v. Sundarbai ,
AIR 1974 Bom 203 [
LNIND 1973 BOM 9 ] (212) : 1974 Mh. LJ 51; Ram Chandra v. Kalyan Singh ,
AIR 2006 All 184 (185) :
2006 AIHC 2136 .
49 Divnl. Forest Officer v. Daut AIR ,

1968 SC 612 (614) :
1968 (2) SCR 112 [
LNIND 1967 SC 311 ]; Ram Chandra v. Kalyan Singh ,
AIR 2006 All 184 (185) :
2006 AIHC 2136 ; Raja Ram Singh v. Kanhaiya Rai , see also
AIR 1950 Pat 284 : 5 DLR Pat 177.
50 Raja Ram Singh v. Kanhaiya Rai ,

AIR 1950 Pat 284 : 5 DLR Pat 177.
AIR 1974 Bom 203 [
LNIND 1973 BOM 9 ] (212) : 1974 Mh. LJ 51.
AIR 1974 Bom 203 [
LNIND 1973 BOM 9 ] (214) : 1974 Mh. LJ 51.
53 HALSBURY’S Laws of England , 3rd Edn., Vol. 26 p. 325.
54 MOSLEY, 1914-1 Ch. 438 (450); Raja Anand v. State of U.P ., AIR 1967
SC 1081 (1088) : 1967 (1) SCR 373.
55 Sulaiman v. Biyaththumma , 32 Mad LJ 137 : AIR

1916 PC 217 .
56 Gummanna v. Nagaveniamma , AIR

1967 SC 1595 (1597, 1598) :
1967 (3) SCR 932 [
LNIND 1967 SC 183 ].
57 1996
AIHC 1582 (1589) (Gau).
58 Syed Abdul Jani v. Sharafi Bibi ,

1996 AIHC 326 (328) (Ori).
59 S.N. Ranade v. Union of India , AIR

1964 SC 24 (26) :
(1964) 2 SCR 885 [
LNIND 1963 SC 97 ].
Page 41 of 51
S. 8 (A).
60 S.N. Ranade v. Union of India , AIR

1964 SC 24 (27) :
(1964) 2 SCR 885 [
LNIND 1963 SC 97 ].
61 I.T. Commer. v. Bhurangya Coal Co., AIR

1959 SC 254 (257) :
(1958) 34 ITR 802 .
62 HALSBURY’S Laws of England , (Simonds Edition) Vol. VII, para 670 (315); Rajinder Chand v. Sukhi ,
AIR
1957 SC 286 (292) :
1956 SCR 889 [
LNIND 1956 SC 83 ].
63 M. Dasaratharami Reddi v. D. Subba Rao , AIR

1957 SC 797 (800) :
1957 SCR 1122 [
LNIND 1955 SC 87 ].
64 2 Ind App 7 (PC).
65 Nathoo Lal v. Durga Prasad, (Chunchun) Jha v. Esadat Ali , AIR

1954 SC 355 (358, 359) :
1955(1) SCR 51 [
LNIND 1954 SC 63 ].
66 Nagammal v. Subbalakshmi Ammal,

AIR 1947 Mad 319 [
LNIND 1946 MAD 179 ]:
1947 (1) MLJ 64 [
LNIND 1946 MAD 179 ] :
1947 MWN 97 .
67 AIR
1951 SC 139 (C) :
1950 SCR 766 [
LNIND 1950 SC 42 ].
68 24 WR 395.
69 9 Beng LR 377 (PC).
70 Inderjeet v. State of H.P ., 1995

AIHC 1003 (1025) (HP-DB); Gulabchand v. Kudilal ,
AIR 1959 MP 151 [
LNIND 1959 MP 99 ] (FB) :
1959 Jab LJ 78 .
Page 42 of 51
S. 8 (A).
71 Bijibai Saldhana v. Rama Manohar Thannu Mishra ,

AIR 1969 Bom 103 [
LNIND 1968 BOM 16 ]:
ILR 1969 Bom 536 [
72 Belapur Company Ltd. v. Maharashtra State Farming Corporation ,

AIR 1969 Bom 231 [
73 State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd. , AIR 2007
SC 2361 (2365) :
(2006) 6 SCC 293 [
LNIND 2006 SC 478 ].
74 Mathai Samuel v. Eapen Eapen, AIR

2013 SC 532 (540); Rajendra Prasad Bose v. Gopal Prasad Sen, AIR
1930 PC 242 ; C. Cheriathan v. P. Narayanan Embranthiri,
(2009) 2 SCC 673 [
LNIND 2008 SC 2479 ] : AIR
2009 SC 1502 : 2009 AIR SCW 996 :
JT 2008 (13) SC 542 [
LNIND 2008 SC 2479 ]:
(2009) 1 SCALE 430 .
75 Firm Chunni Lal Tukkimal v. Firm Mukat Lal Ram Chandra ,

AIR 1968 All 164 [
LNIND 1967 ALL 8 ].
76 Uttam Chand v. Radhabai,

AIR 1991 MP 296 [
LNIND 1990 MP 186 ] (301); CIT v. Panbari Tea Co., AIR
1965 SC 1871 :
(1965) 3 SCR 811 [
LNIND 1965 SC 140 ] ; Mangala Kunhimina, AIR
1971 SC 1575 :
(1971) 1 SCC 562 [
LNIND 1971 SC 83 ].
77 Shyam Sunder Ganeriwalla v. Delta International Ltd. ,

AIR 1998 Cal 233 [
LNIND 1997 CAL 289 ] (239) (DB) : 1998 (2) 1 CC 298.
78 Premjit Theatures v. Rashi Mehata & Co.,

AIR 1990 AP 272 [
LNIND 1989 AP 214 ] (275) (DB) :
(1989) 3 ALT 268 .
79 S.A.A. Pvt. Ltd. v. Municipal Corpn. for Greater ,Bombay

AIR 1990 Bom 338 [
LNIND 1990 BOM 46 ] (340); Achintya Kumar Saha v. Nanee Printers , AIR 2004
SC 1591 (1594) :
(2004) 12 SCC 368 [
LNIND 2004 SC 137 ].
Page 43 of 51
S. 8 (A).
80 S.G. Mohammed Ali Sahib v. Syed Ali Khadar Sahib ,

AIR 1978 NOC 52 (Mad-DB).
81 C. Cheriathan v. P. Narayanan Embranthiri, AIR

2009
SC 1502 (1504) :
(2009) 2 SCC 673 [
LNIND 2008 SC 2479 ] : 2009 AIR SCW 996 :
(2009) 1 SCALE 430 .
82 Sultan Moideen v. Official Trustee

,
AIR 1978 Mad 248 [
LNIND 1977 MAD 140 ] (251) (DB) : (1978) 1 Mad LJ 190; Achintya Kumar Saha v.
Nanee Printers , AIR 2004
SC 1591 (1594) :
(2004) 12 SCC 368 [
LNIND 2004 SC 137 ] ; Shalinibai Trimbakrao Begde v. Narayan Harnaji Bhalme ,
2006 (6) Mah LJ 752 (758) (Bom-DB) (Document was not a sale deed, but
executed towards security.)
83 Modi and Co. v. Union of India AIR ,

1969 SC 9 :
(1968) 2 SCR 565 [
LNIND 1967 SC 364 ] ; Oil Natural Gas Corpn. Ltd. v. SAW Pipes Ltd. , AIR 2003
SC 2629 (2646) : (2003) 2 Arb LR 5 :
(2003) 5 SCC 705 [
LNIND 2003 SC 444 ].
84 Rajasthan State Industrial Development and Investment Corporation v. Diamond and

Gem Development Corporation Ltd ., AIR 2013
SC 1241 (1250) : 2013 (2) SCALE 452 :
JT 2013 (3) SC 417 [
LNIND 2013 SC 330 ]; United India Insurance Co. Ltd. v. Harchand Rai Chandan
Lal , AIR
2004 SC 4794 : 2004 AIR SCW 5481 ; Polymat India P. Ltd. v. National Insurance
Co. Ltd ., AIR
2005 SC 286 : 2004 AIR SCW 6924 :
JT 2004 (10) SC 292 [
LNIND 2004 SC 1755 ]:
2004 (10) SCALE 99 [
LNIND 2004 SC 1755 ].
85 Provash Chandra Dalui v. Biswanath Banerjee , AIR

1989 SC 1834 : 1989 Supp (1) SCC 487; Oil Natural Gas Corpn. Ltd. v. SAW Pipes
Ltd , AIR 2003
SC 2629 (2646) : (2003) 2 Arb LR 5 :
(2003) 5 SCC 705 [
LNIND 2003 SC 444 ].
86 Bishwanath Prasad Singh v. Rajendra Prasad , AIR 2006

SC 2965 (2969) :
(2006) 4 SCC 432 [
LNIND 2006 SC 146 ].
87 Union of India v. M/s. Millenium Mumbai Broadcast Pvt. Ltd ., AIR 2006
SC 2751 (2757) :
(2006) 10 SCC 510 [
LNIND 2006 SC 320 ].
Page 44 of 51
S. 8 (A).
88 Puzhakkal v. C. Bhargavi , AIR

1977 SC 105 (106) :
(1977) 1 SCC 17 [
LNIND 1976 SC 351 ].

1977 SC 105 (108) :
(1977) 1 SCC 17 [
LNIND 1976 SC 351 ].

1977 SC 105 (108) :
(1977) 1 SCC 17 [
LNIND 1976 SC 351 ].
91 Firm Surajmal Radha Krishna v. Firm Sevbux Rai Hadutta Roy ,

AIR 1960 Ori 165 (DB) :
ILR 1960 Cut 307 .
92 Jagannath v. Byomkesh,
AIR 1973 Cal 397 [
LNIND 1972 CAL 172 ] (399).
93 Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo,

(2009) 5 SCC 713 [
LNIND 2009 SC 646 ] (728) :
JT 2009 (6) SC 570 [
LNIND 2009 SC 646 ]:
2009 (5) SCALE 559 [
LNIND 2009 SC 860 ] :
[2009] 5 SCR 94 .
94 Kameswar Singh v. Khaichow Singh ,

AIR 1973 Gau 43 (46, 47) (DB).
95 Kameswar Singh v. Khaichow Singh ,

AIR 1973 Gau 43 (46, 47) (DB).
96 State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd. , AIR 2007
SC 2361 (2365) :
(2006) 6 SCC 293 [
LNIND 2006 SC 478 ].
1 State of U.P. v. Sayed Abdul, 1972

SC 1290 (1292) :
(1973) 2 SCC 26 [
LNIND 1972 SC 77 ] ; M.B. Tharada v. State of Gujarat ,
AIR 1969 Guj 362 [
LNIND 1968 GUJ 41 ] (DB).
2 State of U.P. v. Sayed Abdul, 1972

SC 1290 (1292) :
Page 45 of 51
S. 8 (A).
(1973) 2 SCC 26 [
LNIND 1972 SC 77 ].
3 I.T. Commer., A.P. v. M & G Stores, AIR

1968 SC 200 (204) :
(1967) 3 SCR 876 [
LNIND 1967 SC 176 ].
4 Jagta v. Hari Chand , AIR 1959 J&K 103.
5 Ramkishorelal v. Kamlanarayan , AIR

1963 SC 890 (893, 894) : (1963 Supp (1) SCR 417; Pran Krishna Das v. Controller
of Estate Duty ,
AIR 1968 Cal 496 [
LNIND 1967 CAL 141 ] (DB).
6 Jayarama Naidu v. M. Nllaiah ,

AIR 2003 AP 357 (377):
(2003) 4 ALT 491 : (2003) ZALD 687.
7 Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo,

1960 3 SCR 604 [
LNIND 1960 SC 132 ] (611) : AIR
1960 SC 953 (957).
8 Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo,

(1960) 3 SCR 604 [
LNIND 1960 SC 132 ] (611) : AIR
1960 SC 953 (957).
9 Ramkishorelal v. Kamlanarayan, AIR

1963 SC 890 (894) : 1963 Supp (1) SCR 417.
10 Isakki Amml v. Pappammal ,

AIR 1968 Mad 61 [
LNIND 1966 MAD 102 ].
11 Triveni Bai v. Lilabai , AIR

1959 SC 620 (626) : 1959 Supp (2) SCR 107.
12 Shantabai v. State of Bombay , AIR

1958 SC 532 (535) :
1959 SCR 265 [
LNIND 1958 SC 28 ].
13 Rajendea Prasad v. Gopal Prasad, 57 IA 296 : AIR

1930 PC 242 ; Ram Gopal v. Nand Lal , AIR
1951 SC 139 (141) :
1950 SCR 766 [
LNIND 1950 SC 42 ].
Page 46 of 51
S. 8 (A).
14 Krishnaswami v. Perumal, AIR

1950 PC 105 (108) : 64 MLW 1.
15 Jatinder Nath v. Delhi Development Authority,

AIR 2001 Del 89 [
LNIND 2000 DEL 831 ] (90) :
2001 (89) DLT 1 [
LNIND 2000 DEL 831 ].
16 Appandianatha Nainar v. Appadura, (2003) 1 Mad LJ 805 (811) (Mad-DB).
17 Venkatasubba Rao v. Krishnamurthy ,

AIR 1958 AP 447 (448) :
1958 Andh LT 413 .
18 Kshetra Sahu v. Syama Sahu ,

AIR 1958 Ori 254 (255) : 24 Cut LT 127 :
ILR 1958 Cut 234 .
19 Kshetra Sahu v. Syama Sahu ,

AIR 1958 Ori 254 (255) : 24 Cut LT 127 :
ILR 1958 Cut 234 .
20 Ramu v. Papaiah ,
AIR 1996 Kant 51 [
LNIND 1995 KANT 288 ] (54):
(1995) 4 Kar LJ 421 [
21 Annapurna Barik Dei v. Inda Bewa,

AIR 1995 Ori 273 [
LNIND 1995 ORI 176 ] (276).
22 Kondamuri Anasuyamma v. District Judge ,

AIR 1991 AP 47 [
LNIND 1990 AP 184 ] (48, 49) : (1990) 2 Andh WR 300.
23 Tribhuwan Dutt Tripathi v. Ramji Tiwari ,

AIR 1991 All 268 [
LNIND 1991 ALL 272 ] (271) : 1991 All WC 693.
24 A. Bapiraju v. District Registrar Registration and Stamps ,

AIR 1968 AP 142 [
LNIND 1966 AP 218 ] (FB).
25 Uttam Chand, v. Radhabai ,

AIR 1991 MP 296 [
LNIND 1990 MP 186 ] (301).
26 Provash Chandra Dalui v. Biswanath Banerjee , AIR 1989

SC 1834 (1838) : 1989 Supp (1) SCC 487.
Page 47 of 51
S. 8 (A).
27 D.N. Srimani v. Controller of Estate Duty , AIR

1988
SC 1511 (1516) :
(1988) 3 SCC 488 [
LNIND 1988 SC 301 ] In St. Aubyn v. Attorney General (See
1951) 2 All ER 473 (496), quoted in D.N. Srimani v. Controller of
Estate Duty , AIR 1988
SC 1511 (1516) :
(1988) 3 SCC 488 [
LNIND 1988 SC 301 ].
28 D.N. Srimani v. Controller of Estate Duty, AIR 1988

SC 1511 (1516).
29 Satya Naran v. Ranna Devi ,

AIR 1981 NOC 126 (All).
30 Chikkaraj v. K.N. Viswanathan ,

AIR 1979 Mad 103 [
LNIND 1977 MAD 218 ] (113, 114) (DB) :
ILR (1979) 1 Mad 138 [
LNIND 1977 MAD 218 ].
31 Jaggavarapu Krishna Reddy v. Jaggavarapu Chillenimma, 1998

AIHC 3834 (3838).
32 Sri Digamber Jain v. Sub-Registrar , Stamp,

AIR 1970 MP 23 ; See also Chief Controlling Revenue Authority v. Chdambaram ,
AIR 1970 Mad 5 (Where the recitals in the document were only making declaration
of a pre-existing trust coupled with transfer of its management and were not by itself transferring the ownership, the
deed was not treated as a conveyance).
33 Bal Krishna Bihari Lal v. Board of Revenue, M.P .,

AIR 1970 MP 74 [
LNIND 1969 MP 56 ] (FB).
34 Trustees of Moti Das Bairagi Sadhu Ratlam Trust Board v. Ram Jatan Ram Prasad
Sonar ,
AIR 1963 MP 265 [
LNIND 1962 MP 42 ] (DB).
35 Laiqram v. Agardas ,
AIR 1967 HP 29 [
LNIND 1966 HP 10 ] (AIR
1936 PC 171 relied on ).
36 S. Rajanna v. S.M. Bhondusa ,

AIR 1970 Mys 270 (DB).
37 K.K. Nambiar v. P. Kurup ,

AIR 1970 Ker 16 [
LNIND 1968 KER 141 ] (FB) :
Page 48 of 51
S. 8 (A).
1969 Ker LT 62 :
ILR 1968 (2) Ker 583 .
38 Daulat Ram Sahni v. Triloki Nath ,

AIR 1962 All 147 (FB).
39 S. Parthasarthi v. Comm. of I.T. Madras ,

AIR 1967 Mad 227 [
LNIND 1965 MAD 189 ] (DB) (AIR
1953 SC 495 followed ).
40 M.S. Vadivelu Mudaliar v. N.S. Rajabada Mudaliar ,

AIR 1967 Mad 175 [
LNIND 1964 MAD 28 ] (DB).
41 Union of India, (S.E. Railway) v. Amrendera Nath Sarkara ,

AIR 1967 Cal 119 [
42 Union of India (S.E. Railway) v. Amrendera Nath Sarkara ,

AIR 1967 Cal 119 [
43 Dharamchand Kedarnath v. C.I.T. ,

Lucknow U.P.
,
AIR 1967 All 590 (DB) (AIR
1966 SC 15 followed ;
AIR 1953 Mad 315 [
LNIND 1952 MAD 55 ] and
AIR 1958 Pat 177 , no longer a good law, having been overruled in AIR
1961 SC 680 and disapproved by Allahabad High Court).
44 Raman Nmbiar v. Krishnan ,

AIR 1958 Ker 265 [
LNIND 1957 KER 186 ] (267) :
1957 Ker LJ 980 :
1958 Ker LT 29 .
45 A. Raman Nmbiar v. , Krishnan

AIR 1958 Ker 265 [
LNIND 1957 KER 186 ] (267) :
1957 Ker LJ 980 :
1958 Ker LT 29 ; Kochukutty Amma v. Bhargavi Amma , ILR 1953 Trav-Co. 943 :
AIR 1954 Trav-Co. 169.
46 Narayani Amma v. Bhankaran Pillai ,

AIR 1969 Ker 214 [
LNIND 1968 KER 254 ].
47 Satya Jain v. Anis Ahmed Rushdie, AIR

2013 SC 434 (444, 445) :
JT 2012 (12) SC 30 [
LNINDORD 2012 SC 456 ]: 2012 (11) SCALES 570.
Page 49 of 51
S. 8 (A).
48 Mathai Samuel v. Eapen Eapen, AIR

2013 SC 532 (541) : 2012 (11) SCALES 167.
49 Parekh Brother v. Kartick Chandra Saha ,

AIR 1968 Cal 532 [
50 Chacko Joseph v. Vargheese Markose ,

AIR 1957 181 (185 ) :
(1957) Ker 475 (DB).
51 I.T. Commr., M.P. v. Maharaja Bhadur Singh , AIR

1987 SC 518 (520, 521) :
(1986) 4 SCC 512 [
LNIND 1986 SC 376 ].
52 M.M.S. Abdul Wahab v. A.P. Abdul Hameed, 1999

AIHC 4037 (4040) : 1999 (2) Mad LJ 735 (Mad).
53 Bomi Jal Mistry v. Jt. Charity Commissioner ,

AIR 2002 Bom 342 [
LNIND 2002 BOM 308 ] (360) (DB) :
2002 (4) Bom CR 13 [
LNIND 2002 BOM 308 ] : 2002 (4) Mah LR 78.
54 Krishnabai v. Dnyandeo,
AIR 1982 Bom 107 (111).
55 Roy & Co. v. Nani Bala

,
AIR 1979 Cal 50 [
LNIND 1978 CAL 424 ] (52); Thalari Nookayya v. Konatha Jaggarajo , 1955 Andh
WR 659 ; Bengal Coal Co. Ltd. v. Balmukunda Goenka ,
ILR (1951) 1 Cal 168 (DB); Velusami Goundan v. K. Palani Goundan , AIR 1953
NUC (Mad) 24345.
56 E.N. Rao v. D.C. Verma

,
AIR 1976 MP 205 [
LNIND 1975 MP 52 ] (206) :
1976 MPLJ 454 ; Thalari Nookayya v. Konathala Jaggarajo , 1955 Andh WR 659 ;
Bengal Coal Co. Ltd. v. Balmukunda Goenka ,
ILR (1951) 1 Cal 168 (DB); Velusami Goundan v. K. Palani Goundan , AIR 1953
NUC (Mad) 24345.
57 E.N. Rao v. D.C. Verma ,

AIR 1976 MP 205 [
LNIND 1975 MP 52 ] (206) :
1976 MPLJ 454 .
58 Banwari Lal v. Sukhdarshan , AIR

1973 SC 814 (815) :
(1973) 1 SCC 294 .
Page 50 of 51
S. 8 (A).
59 K. Venkatasubbaiah v. S. Narayananamma ,
AIR 1972 AP 341 [
LNIND 1971 AP 205 ] (344) :
(1972) 1 Andh LT 114 .
60 K. Venkatasubbaiah v. S. Naryananamma ,
AIR 1972 AP 341 [
LNIND 1971 AP 205 ] (344) :
(1972) 1 Andh LT 114 .
61 K. Venkatasubbaiah v. S. Naryananamma ,
AIR 1972 AP 341 [
LNIND 1971 AP 205 ] (344) :
(1972) 1 Andh LT 114 .
62 D. Sethi v. C. Shau ,
AIR 1971 Ori 215 (216, 217) : AIR
1963 SC 1879 relied on 6, 207).
63 Buddu Venkatakrishna Rao v. Boddu Satyavathi, AIR

1968 SC 751 (753) :
(1968 (2) SCR 395 [
LNIND 1967 SC 342 ].
64 I.T. Commr. A.P. v. M & G. Stores , AI

1968 SC 200 (204) :
(1967) 3 SCR 876 [
LNIND 1967 SC 176 ].
65 Bituljan Bibi v. Abdul Kasem Sahow ,

AIR 2005 NOC 378 : 2005 AIHC 2388 (Cal).
66 Jai Narayan Misra v. Hasnmathunnisa Begum,

AIR 2002 AP 389 (397) :
2002 (3) Andh LT 689 .
67 V.D. Mudaliar v. General and Credit Corpn. (India) Ltd .,

AIR 1960 Mad 328 [
LNIND 1959 MAD 172 ].
68 Administrator, U.T.I. v. Garware Polyster Ltd. , AIR 2005

SC 2520 (2528) :
(2005) 10 SCC 682 [
LNIND 2005 SC 1056 ].
69 Delhi Development Authority v. Jitender Pal Bhardwaj, AIR

2010 SC 497 (498, 4499) :
(2010) 1 SCC 146 [
LNIND 2009 SC 1899 ] : 2009 AIR SCW 7051 :
2009 (11) SCALE 391 :
JT 2009 (14) SC 220 [
Page 51 of 51
S. 8 (A).
70 Habiba Khatoon v. Ubaidul Huq , See AIR

1997 SC 3236 (3242, 3243) :
(1997) 7 SCC 452 [
LNIND 1997 SC 1053 ].
71 N.P. Pushpangadan v. Federal Bank Ltd.,

2011 (4) KLT 134 [
LNIND 1999 KER 218 ] (150) (FB).
72 Shafiq Ahmad v. Sayeedan ,

AIR 1984 All 140 (141, 142) : 1984 All WC 187.
73 Rajpal Singh v. Devendra Kumar ,

2003 AIHC 188 (193, 194) : 2002 All LJ 2400 (All).
74 Ratni Devi (Smt.) v. Chankanda Ram ,

2007 (2) Punj LR 736 (738) (P&H).
75 K. Subbanna Rai v. Deranna Rai,

2011 (3) KLT 142 [
LNIND 2010 KER 826 ] (146) (Ker).
End of Document
Darashaw Vakil
S. 9.
A transfer of property may be made without writing in every case in which a
writing is not expressly required by law.
COMMENTS
Scope. —A transfer of property may be made orally unless expressly required

by law to be in writing. Prior to the passing of the
Transfer of Property Act no writing was necessary for such transfers.76 After
the passing of the Act certain specified transactions are required to be in writing. 77 Title to the land cannot
pass by mere admission when a statute requires a deed. 78
Section 9 says that a transfer of property may be made without writing in every case in which a writing is not
expressly required by law. The
Transfer of Property Act is not exhaustive of the kind of transfers.79
Ramaswami J., of Madras High Court in Sarandaya Pillai v. Sankarlinga Pillai,
80 observed "the test, therefore, in this country to determine whether a transaction (be it a transfer or not) can
be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a ‘transfer
of property’ and there is no express provision of law requiring it to be in writing, Section 9 will enable it to be
made without writing. If on the other hand, the transaction is not a ‘transfer of property’ and there is no express
provision of law requiring it to be in writing, the general principle referred to above will enable it to be validly
made without writing." Section 9 underlines the general principle that everything is to be taken permissible
unless there is a prohibition against it and has been inserted in the statute ex abundanti cautela . 81
Where a promoter of a company though fulfils some fiduciary duties, he cannot be described as a trustee, he
occupies a peculiar position of a quasi trustee. The declaration of promoter that the property held by him for the
company to be formed does not constitute either sale, mortgage, lease, exchange or deed, the company before
its incorporation is not a living person and hence the provisions of
Section 5 of the T.P. Act are not attracted. Such declaration also does not
constitute a transfer to himself and the company has not come into force as a beneficiary and hence it will not
become a trust. Hence the transaction is outside the purview of
Section 5 of the T.P. Act and also
Indian Trusts Act, 1882 , and it does constitute a conveyance as a vesting
instrument or other assurance of the company and can be made orally under
Exception. —The English doctrine of part-performance extended by the Privy

Council to this country in Mahomed Musa’s case 83 which subsequently found its way into
Page 2 of 8
Section 53A of the Amending Act , 20 of 1929, violates the rule in this section
under circumstances mentioned therein.
Writing necessary. —The Act requires transactions specified in Sections 54,

58 (except mortgage by deposit of title-deeds), 105, 118, 122, 130 to be in writing. So also under
Section 5 of the Indian Trusts Act , II of 1882, transfers which parties desire to
register must be in writing. Gift of immovable property at the time of marriage must be in writing and must also
be registered.
Section 9 of T.P. Act would not apply to a case of transfer of immovable
property made at the time of marriage by a Hindu.84
Writing not necessary. —

Transfer of Property Act clearly recognizes oral transfers. Section 9 of the Act
provides that "a transfer of property may be made without writing in every case in which a writing is not
expressly required by law." It follows, therefore, that an oral transfer of property is rule unless there is law which
expressly requires that it should be made in writing.
Transfer of Property Act contains various transfers where writing is necessary.
Under Section 54, a sale of tangible immovable property of the value of Rs. 100/- or upwards of a reversion or
other intangible thing is required to be made only by a registered instrument. Under Section 59, a writing is
necessary in the case of a simple mortgage or in the case of all other mortgages except a mortgage by deposit
of title-deeds where the principal sum secured is Rs. 100/- or upwards. Under Section 107, a lease of
immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is
required to be made in writing. Under Section 123, a gift of immovable property can only be made by a writing.
Under Section 130, all transfers of actionable claims have to be made by writing and, under Section 118,all
exchanges are subject to the same rules as are applicable to sales. Thus, when the law requires that there
should be an instrument in writing and that instrument must be registered, the transfer can only be effected in
that manner. But where no writing is required by the
Transfer of Property Act or any other law, the transfer may be made orally.85
A relinquishment by the mother of her interest in the joint family property, even when the property consists of
immovable property and the value of the share therein exceeds Rs. 100/-, can be made without writing, and
registered instrument is not required. 86
An alienation needs no written instrument. It is sufficient if the person entitled to the property does an act which
necessarily results in its transfer. 87 All that the Act provides for is that certain specified transfers shall only be
made in writing duly registered. An award relating to immovable property need not be in writing. 88 A
compromise of disputes resulting in transfer of immovable property, 1 a partition of immovable property, 2 a
transfer by possession followed by a deed of gift incomplete owing to absence of registration, 3 and a transfer
of land by husband to his wife during her lifetime in discharge of future maintenance may be made without
writing, 4 and so a surrender of lease. 5
When the Custodian sells the evacuee property under

Section 10(2) (o) of the Administration of Evacuee Property Act,1950 , he sells
it, in effect, for the evacuee in exercise of his statutory power. The property sold by him may in one case be
worth less than Rs. 100/-. To either sale, prima facie , the provisions of the
Transfer of Property Act would apply.6 Sale of a property worth less than Rs.
100/- may be made either by a registered instrument or orally by delivery of possession. Title to such property
shall pass to the vendee on his taking possession. The sale of property worth Rs. 100/- or more may be made
only by a written and registered sale deed. 7
Registration. —Transfer which are not expressly required by law to be in

writing, if made in writing, are subject to the requirement of registration if they purport or operate to declare,
assign, limit or extinguish a right, title or interest to or in immovable property of the value of Rs. 100 and
upwards. 8 Gift of immovable property at the time of marriage must be in writing and must also be registered.
Section 9 of T.P. Act would not apply to a case of transfer of immovable
property made at the time of marriage by a Hindu.9
Family arrangement. —A transaction cannot be a family settlement simply

Page 3 of 8
because a party choose to call it so. The nature of the document has to be gathered from the document and
from the surrounding circumstances, if the document is vague. 10 Where a family arrangement is reduced into
writing for proof of arrangement in future, it requires proper stamp and registration under the provisions of the
Indian Stamp Act, 1899 and the
Registration Act, 1908 . An unstamped and unregistered family arrangement is
inadmissible in evidence and cannot be looked into for any purpose whatsoever in view of the provisions of
Section 35 of the Indian Stamp Act, 1899 .11 Where a family arrangement itself
neither creates any title in the plaintiff nor declares his title, it does not require registration. 12
Deed of surrender simpliciter. —It is well settled that a deed of surrender

simpliciter cannot affect any transfer of the title of the releaser in favour of the releasee. 13
Oral mortgage. —Where the sum secured is more than one hundred rupees,
an oral mortgage is not valid, and no evidence can be adduced to prove such mortgage. 14 Where a mortgage
has not been effected in accordance with law, it cannot be proved by any other evidence. 15
Deed of relinquishment. —A deed of relinquishment is in the nature of deed

of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in
respect of one item cannot affect its validity in respect of another. 16 Where the deed of relinquishment, was in
respect of the individual interest of the three brothers in the assets of the partnership firm in favour of the Trust,
and consequently, did not require registration, even though the assets of the partnership firm included
immovable property, and was valid without registration. 17
Deed of relinquishment, gift and partition deed. —A deed of relinquishment,

or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in
respect of some properties and not in respect of others, because rights of persons being partitioned are
adjusted with reference to the properties subject to partition as a whole. 18
Partition. —
Section 9 of the Transfer of Property Act says that a transfer of property may
be made without writing in every case in which a writing is not expressly required by law. A partition between
co-owners it may perhaps be said to involve a transfer of property because in the specific properties allotted to
a particular co-owner the interest which the other co-owners had previous to the partition is given up and to that
extent it may be said to be a transfer of property. But the
Transfer of Property Act itself does not expressly require such a partition to be
in writing and there is no other provision of law requiring such a partition to be evidenced by writng.19
To enable the parties to come to an agreement, namely, to treat a sale as a mortgage by a subsequent
agreement, no writing need be executed by and between the parties. There are various instances of oral
transfers. 20
Oral partition. —A partition may be effected orally, but if subsequently reduced

to the form of a document and that document purports by itself to effect a division and embodies all the terms of
a bargain, it will be necessary to register it. 21
Release. —A release can be usefully employed as a form of conveyance by a

person having some right or interest to another having a limited estate, e.g. by a remainder man to a tenant for
life, and the release then operates as an enlargement of the limited estate. 22 A release deed can by the use of
the words of sufficient amplitude, transfer title to one having no title before the transfer. 23
A plaintiff is not entitled to relief of declaration of title unless he establishes that he has good title to the suit
property. When there is nothing to show that a party gained possession by any unfair means just prior to suit
and possession is proved, such possession is entitled to be protected, thereby entitling the party to relief of
injunction as prayed for until evicted by due process of law. Transfer of tangible immovable property of value of
one hundred rupees and upwards is to be made only through a registered instrument and no legal title is
passed on to the purchaser though oral sale is established. In the instant case, the plaintiff was alleged to have
purchased property orally in the year 1977 for a consideration of Rs. 2000/-. The plaintiff had been in
possession of the property since then, a fact which was not denied by the defendant. Since the transfer of the
Page 4 of 8
property had not been legally effected as contemplated under

Sections 9 and
54 of the
T.P. Act , the relief of declaration could not be granted. However, the plaintiff
was granted the relief of injunction restraining the defendant from interfering with the plaintiff’s possession
unless evicted by due course of law.24
Sale at market rate. —There is no law which says that the seller must sale the
property at market rate. He can always sale at any rate of his choice. The only constraint that is imposed on
him would be to pay the stamp duty required to be paid on the prices fixed by the Ready Reckoner of the
Government so that there could be no loss of the Government Revenue. The sale-deed cannot become void for
inadequacy of prices after the parties have mutually accepted the prices as the correct price. 25
Condition restraining alienation.
76 Mahomed Musa v. Aghore Kumar Ganguli ,

(1915) 42 Cal 801 : 42 IA 1.
77 Immudipattam v. Periya Dorasami , (1901) 24

Mad 377 ; Bishan Dial v. Ghazi-ud-din ,
(1901) 23 All 175 .
78 Keshri Mull v. Sukan Ram ,

AIR 1933 Pat 264 ; Jadu Nath v. Rup Lal ,
(1906) 33 Cal 967 ; Bhupendra Narayan v.
Rajeswar Prosad ,
(1927) 55 Cal 35 .
79 Weavers Mills v. Balkis Ammal,

AIR 1969 Mad 462 [
LNIND 1967 MAD 164 ] (469, 470) :
(1969) 2 Mad LJ 509.
80 1959 (2) Mad LJ 502 (503).
81 Weavers Mills v. Balkis Ammal ,

AIR 1969 Mad 462 [
LNIND 1967 MAD 164 ] (469, 470) :
(1969) 2 Mad LJ 509. Oral transfer.
82 V. Pattabhirama Rao v. Sri Ramanuja G.& R.

Factory (P) Ltd., A.P.,
AIR 1984 AP 176 [
LNIND 1983 AP 360 ] (188) (DB).
83 Gobind Prasad v. Jagdeep Sahai ,

AIR 1924 Pat 185 : (1915) 42 Cal 801 : 42
IA 1.
Page 5 of 8
84 Gangadhara Rao v. G. Gangarao ,

AIR 1968 AP 291 [
LNIND 1967 AP 71 ].
85 Ramdas v. Pahlad ,
AIR 1965 Bom 74 [
LNIND 1964 BOM 11 ] (75, 76) : 66 Bom
LR 499; Subramniyan v. Venkatachalam Pillai,
(2011) 6 MLJ 743 [
LNIND 2011 MAD 3612 ] (752) (Mad).
86 Ramdas v. Pahlad ,
AIR 1965 Bom 74 [
LNIND 1964 BOM 11 ] (75, 76) : 66 Bom
LR 499.
87 Bhuta Singh v. Mangu ,

AIR 1930 Lah 9 ; Ram Sarup v. Ram Dei ,
(1907) 29 All 239 ; Sheo Singh v. Jeoni ,
(1897) 19 All 524 .
88 Bhagwatibai v. Bhagwandas , AIR 1927 Sind

206.
1 Thiru Vengidachariar v. Ranganatha Aiyangar,

(1903) 13 MLJ 500 [
LNIND 1903 MAD 69 ] ; Krishna v. Aba
Shetti , (1909) 34 Bom 139.
2 Madam Pillai v. Badrakali , (1922) 45 Mad 612 ;

Imperial Bank of India v. Bengal National Bank Ltd .,
(1931) 58 Cal 136 ; Gyannessa v.
Mobarakannessa ,
(1898) 25 Cal 210 ; Satya Kumar v. Satya
Kripal, (1909) 10 CLJ 503.
3 Hiralal v. Gaurishanker ,
(1928) 30 Bom LR 451 .
4 Madam Pillai v. Badrakali , (1922) 45 Mad 612.
5 Brojonath v. Maheswar, (1918) 28 CLJ 220 ;

Elias Meyer v. Manoranjan ,
(1918) 22 CWN 441 ; Fowler v. The
Secretary of State ,
AIR 1921 Mad 363 ; Imperial Bank of
India v. Bengal National Bank Ltd .,
(1931) 58 Cal 136 .
Page 6 of 8
6 Mazharul v. Khacher Bux ,

AIR 1969 All 554 (555, 556) : 1968 All LJ
555.
7 Mazharul v. Khacher Bux ,

AIR 1969 All 554 (555, 556) : 1968 All LJ
555.
8 Imperial Bank of India v. Bengal National Bank

Ltd .,
(1931) 58 Cal 136 .
9 Gangadhara Rao v. G. Gangarao ,

AIR 1968 AP 291 [
LNIND 1967 AP 71 ].
10 K.C. Mandal v. Mt. Anila Bala Dasi ,

AIR 1968 Pat 487 (DB).
11 A.C. Lakshmipathy v. A.M. Chakrapani

Reddiar,
AIR 2001 Mad 135 [
LNIND 2000 MAD 1031 ] (146, 147) (DB) :
2001 (1) Mad LJ 1 :
2001 (1) Mad LW 257 [
LNIND 2000 MAD 1031 ].

AIR 1959 Ass. 109 (112) (DB); Y.
Yenkataraju v. Y. Yedukondalu ,
AIR 1958 AP 145 (DB) :
1957 Andh LT 179 : (1957) 2 Andh WR
16.
13 Samrathi v. Parasuram ,
AIR 1975 Pat 140 (143).
14 Ramprasad v. Kalyani, AIR

1973 Raj 208 (209, 210):
1972 WLN 84 .
15 Ramprasad v. Kalyani , AIR

1973 Raj 208 (209, 210):
1972 WLN 84 ..
16 Perumal Ammal v. Perumal Naicker, ILR 44

Mad 196 :
AIR 1921 Mad 137 .
Page 7 of 8
17 Commer of I.T ., W.B. v. Juggilal , AIR

1967 SC 401 (404, 405) :
1967 (1) SCR 784 [
LNIND 1966 SC 243 ].
18 Commer of I.T ., W.B. v. Juggilal, AIR

1967 SC 401 (405) :
1967 (1) SCR 784 [
LNIND 1966 SC 243 ].
19 P. Reddiar v. K. Reddi ,
AIR 1966 Mad 419 [
LNIND 1965 MAD 203 ] (421).A partition
my be affected orally. Hansraj Agarwal v. CIT,
(2003) 2 SCC 295 (308); Nanni Bai v.
Gita Bai , AIR
1958 SC 706 (713) :
1959 SCR 479 [
LNIND 1958 SC 50 ] ; Roshan Singh v.
Zile Singh , AIR
1988 SC 881 :
[1988] 2 SCR 1106 .
20 Narsingdas v. Radhakisan ,
AIR 1952 Bom 425 [
LNIND 1951 BOM 193 ] (434, 435) : 54
Bom LR 492.
21 Nanni Bai v. Gita Bai AIR,

1958 SC 706 (713) :
1959 SCR 479 [
LNIND 1958 SC 50 ] ; Roshan Singh v.
Zile Singh , AIR
1988 SC 881 (885):
[1988] 2 SCR 1106 ; Hans Raj Agarwal v.
C.I.T .,
(2003) 2 SCC 295 (308).

SC 1395 (1397) : 1967 (1) SLR 275.

SC 1395 (1397) : 1967 (1) SLR 275.
24 Subramniyan v. Venkatachalam Pillai,

(2011) 6 MLJ 743 [
LNIND 2011 MAD 3612 ] (749, 752)
(Mad).
25 Dashrath Narayan Shinde v. Gangaram Ghag

Laxman,
2010 (4) Mah LJ 392 (394) (Bom) :
(2010) 3 Bom CR 641 [
Page 8 of 8
End of Document
Darashaw Vakil
S. 10.
Where property is transferred subject to a condition or limitation absolutely
restraining the transferee or any person claiming 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.
COMMENTS
Scope and application. — Sections 10, 11 and 12 grouped together forbid

fetters on freedom of ownership.
Sections 10to 17 of the
T.P. Act have been enacted to encourage free alienation and circulation of
property.26 Any condition which restrains the transferee or any person claiming under him from alienating or
parting with or disposing of his right in the property is void as per Section 10. 27
Section 10 of the T.P. Act defines the pre-dominant characteristics of a
transfer, which without the right of alienation by the transferee is void.28
Section 10 of the T.P. Act relieves a transferee of immoveable property from an

absolute restraint placed on his right to deal with the property in his capacity as an owner thereof. As per
Section 10, a condition restraining alienation would be void. The section applies to a case where property is
transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest
in the property. For making such a condition invalid, the restraint must be an absolute restraint. It must be a
restraint imposed while the property is being transferred to the transferee.29
The principle underlying the Section 10 is that a right of transfer is incidental to and inseparable from, the
beneficial ownership of property. If an absolute estate is created and after the creation of such estate, a
condition which brings a diminution of that absolute estate is imposed on the person in whose favour the
absolute estate is created, the said condition being repugnant to the very nature of the estate which was
created is void and unenforceable. The principle is founded on the principle of public policy allowing free
disposition of property. 30
Page 2 of 29
In cases where act or deed does not transfer any property, Section 10 would not apply. 31 The principle behind
Section 10 is that absolute restraint on the right of transfer of property is repugnant to the nature of the estate
and that way any such condition or limitation is imposed in the very transfer of the property saying that
transferee shall not alienate the property to any one, such a condition or limitation would be void and that the
alienation effected would remain, and it would not be affected by any such condition or limitation imposed
therewith. Section 10, therefore, would apply only to cases where property is transferred and some such
absolute restraint is created by imposing any conditions or limitation in that transfer. 32
Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of
property. Entire transfers are not vitiated simply because there may happen to be some clauses in the deeds
which are repugnant to the free transfer and circulation of property; such restrictive clauses are to be treated as
void.33 Section 10 relates only to transfers made by act of parties. It does not apply to sales under the
Companies Act, 1956 , nor to transfers by operation of law taking effect ‘in
invitum’ at a sale in execution of a decree.34 A family arrangement and a compromise of disputed claims are
not transfers, and the section does not in term apply to them. 35 But the principle would be applicable where the
condition involves an absolute restraint on alienation. 36 Similarly, the section does not apply to partitions; but
restraints clearly offending the rule must be held to be void. 37
Unless it is proved that the upset price was on par with the actual market price at the time of grant, the
provisions of
Section 10 of the T.P. Act can never be attracted.38
The equitable principle of law enacted in Section 10 governs the restraint upon the power of alienation
independent of the provisions of the
Transfer of Property Act . This was a well-recognised and well-settled principle
of law even before the
Transfer of Property Act came into force, and by this enactment the principle
already in force was given a statutory recognition. This principle is based upon very sound reasons. It is
manifest that any covenant against alienation is repugnant to the nature of the estate created by permanent
conveyance of property by sale, gift or otherwise.39 The provisions of Section 10 do nothing beyond laying down
the well-recognized equitable principle and this principle applies even to cases, which do not directly come
within the purview of the
The principle underlying Section 10 is that a right of transfer is incidental to, and, inseparable from, the
beneficial ownership of property. An absolute restraint, therefore, on that power is repugnant to the nature of
the estate, and an exception to the very essence of the grant. It is the essence of an immovable property that it
confers free power of alienation, and alienation of such a property cannot be made upon the condition that the
alienee shall not alienate the land to any. 41 The rule in this section that a condition of absolute restraint of
alienation is void is founded on the principle of public policy allowing free circulation and disposition of property.
The Courts have always leant against any device to render an estate inalienable. This is the general and basic
principal underlying this section. 42
It is a trite law that once a sale is complete it clothes the vendee with the beneficial ownership of property and a
right to transfer or alienate is incidental to and inseparable from such a right and any absolute restraint on such
right is repugnant to the concept of sale. Where land was sold through a registered deed, immediately after the
execution of the sale deed an agreement was arrived at between the parties that the vendee or his heirs will not
alienate or dissipate or fritter away the land, the agreement was held violative of
The land was purchased by the State Government for the purpose setting up the University; subsequently land
was transferred by the State Government to the Punjab Urban Development Authority (PUDA) for the purpose
of development of residential complex, to which the University did not object. Mere change of user did not
entitle the landowners to dispute the sale deeds. 44
Where a clause in the sale deed provided that the vendee could not transfer the property to any one outside the
Page 3 of 29
family of the vendor, it violated the rule against perpetuity and the condition was void. 45 Where by gift properly
was given subject to the condition that the donee would have no power to alienate the property in any way, the
condition being absolute restrain was held void being hit by Section 10. 46 A life tenancy co-terminus with the
extinction of the business is illegal under
Sections 10 and
11 of the
T.P. Act and was found also inequitable on the facts of the case.47
Where the partition deed contained a restriction that during the lifetime of the father if the allottees wanted to
transfer the share allotted to them, they could do only with the consent of the father and with the juncion of the
father in the deed of sale, the restriction operated as absolute restrain on the alienation and was not valid. 48
Restraint against alienation. —The section answers the question whether a

general restraint could be annexed to the alienation of property. In all cases absolute restraints are void even in
the excepted instances of leases and married women. What the section exempts are transfers to married
women (excluding those mentioned in the section) during marriage and conditions in leases for the benefit of
the lessor. There is no objection to a transfer of property subject to a condition or limitation, only the condition
or limitation must not be in absolute restraint of alienation. The right of voluntary alienation and liability to
involuntary alienation are the natural incidents of an estate; with the free right of enjoyment co-exists the free
and exclusive power of disposition. 49 Equally inherent to this right is the liability to involuntary alienation. As
long as the power of disposition subsists so long also is the property liable to attachment and sale to meet the
demands of creditors. 50 An incident of an estate which cannot be directly taken away or prevented by the
donor cannot be taken away indirectly by a condition which would cause the estate to revert to the donor, or by
a conditional limitation or executory devise which would cause it to shift to another person. Bankruptcy or
judgment and execution effect an involuntary alienation. Can a fee simple estate be divested by an executory
devise on that event? The liability of the estate to be attached by creditors on a bankruptcy or judgment is an
incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid. If a
testator after giving an estate in fee simple to A, were to declare that such estate should not be subject to the
bankruptcy laws, that would clearly be inoperative. This is the test.
The principle of the section is that the power of alienation which is necessarily incident to an estate in fee
cannot be fettered by a subsequent condition. The two things are repugnant and cannot stand together and the
original gift must prevail.
Once an absolute right had been vested in the legatee, in respect of the properties bequeathed to him by way
of Will, no further condition could have been imposed, as per
sections 10 and
11 of the
T.P. Act , 1882, restraining the alienation of the property or by creating a
restriction repugnant to the interest created in such a property.51
Persons affected by the section. —The restraint is on the transferee or

lessee and not on the transferor or lessor. It must be for the benefit of the lessor but the section is silent as to
whether it may be for the benefit of the transferor and presumably every such restraint must be so. A restraint
for the benefit of the transferee or lessee is not within the scope of the section.
What is it which is void. —Under the section it is not the transfer which is
void, it is the condition or limitation which is void as repugnant to the principle of the transaction upon which it is
sought to engraft it.
Absolute restraint. —Just as general restraint of marriage was held to be bad

but a partial restraint good, so in the same way although an absolute restraint was decided to be bad a restraint
on alienation to one individual or his issue was thought not to be bad. In Muschamp v. Bluet
52 an attempt was made to introduce a converse condition, viz. , that the devisee should alienate only to one
individual named and that was held to be bad. Yet the principle of this decision was departed from in later times
in Daniel v. Ubley 53 and Doe v. Pearson 54
followed by Attwater v. Attwater 55 before Lord Romilly, M.R., and finally in In re

Macleay . 56 These cases were of restraint of alienation except to a particular class of persons. In Daniel v.
Page 4 of 29
Ubley the widow was to alienate to one of her sons. In Doe v. Pearson the discretionary power of alienation
was limited "to her sister or sisters or their children." In Attwater v. Attwater 4
the injunction was never to sell the property out of the family but if sold at all "it must be sold to one of his
brothers." In Attwater v. Attwater 57 Lord Romilly, M.R., challenged the
correctness of the decision in Doe v. Pearson 58 but Sir George Jessel refused
to go contrary to it as it was decided as far back as 1805 and in In re Macleay

59 he followed the rule in that case and decided that the condition was a valid condition. There the devise was
"to my brother J on the condition that he never sells out of the family," followed by gifts to other relatives. In re
Macleay was dissented from by PEARSON, J., in re. Rosher, Rosher v. Rosher . 60 There the learned Judge
held that an absolute restraint against sale during the life of the widow though its operation was limited to a
particular time was repugnant to the nature of an estate in fee. The same case was considered in re. Dugdale,
Dugdale v. Dugdale , 61 where the trust created for the benefit of a son was to cease and determine if by his
own act or by operation of law he was deprived of the personal beneficial enjoyment of the premises in his
lifetime with a gift over in trust for his wife or if no wife then living for his children equally. It was held that the
son took an absolute interest under the gift and that the attempted executory gift over was void for repugnancy.
In Cockerill, Mackaness v. Percival 62 it was observed that Doe v. Pearson
63 and In re Macleay 64 were cases where partial restrictions have been held
not to avoid the condition operating as a restriction on alienation. There the devisee was not restrained from
selling to a particular person but from selling it to anybody except a particular person, creating a state of facts
not found in any reported case in which a condition imposing partial restraint was treated as an exception to the
general rule. Accordingly, the condition was held to be repugnant in accordance with the decision in Muschamp
v. Bluet 65 and in Rosher, Rosher v. Rosher , 66 on the ground of repugnancy.
The following alienation were held void :— A devise with an earnest hope that the devisee would not sell except
by way of exchange or for reinvesting in other estates. 67
Absolute devise to A to cease if B or his wife or their children should become entitled to any part of the estate
by gift, sale, etc . from A. 68 The share of a nephew or niece in the testator’s residuary estate to cease if he or
she should alienate. 69 A bequest of a stock to be laid in the purchase of an annuity for A to cease if he should
sell. 70 A gift to a son of real estate and shares to be held by trustees on the express condition that the son
should not during his life have power to mortgage, sell, alienate, charge or encumber any part of the same and
in the event of his so doing the trustee should stand possession of his share upon trust for other persons. 71
Where an absolute right is transferred in favour of a person and the transfer deed contains a condition limiting
that right restricting the right of the assignee free to sell the property except to the assignor, the said condition
would come within the mischief of Section 10 and would be void. 72 Where the sale deed categorically stated
that in case the assignee failed to construct college on the land, the property would be re-conveyed back to the
assignor at the same price, held it is an absolute restraint on the right of the assignee to deal with the property
and as such void in view of the provision of Section 10. 73 A testator left real estate to trustees with a direction
that "the same shall not be disposed of or mortgaged or encumbered in any way whatsoever but shall remain
for the benefit of my wife and children free from the control of their respective husbands and wives so that the
same shall remain in my family from time to time for ever hereafter." 74
Where property is transferred, subject to a condition or limitation which absolutely restrains the transferee or
any person claiming under him from parting with or disposing of his interest, such a condition would be void
except in the case of a lease where the condition is for the benefit of lessor. 75 Restraint on alienation, even for
a short period is void under Section 10. 76
In the instant case, the corporation had taken a decision to allot lands to the beneficiaries of a scheme.
However, the assignment deed contained a provision that the allottee shall not alienate the land allotted for a
period of twenty years. Held, the condition imposed was a total restriant and was void under
Partial restraint. —Under Section 10 a condition absolutely restraining a

transferee from disposing of the property is void, and the section is wholly silent as to the validity of qualified
restraints on alienation. A condition imposing a partial restraint on alienation is not void. 78 A stipulation taking
away the whole power of alienation substantially is a question of substance and not of form. Section 10 limits
the application of such stipulation. 79
A partial restraint on transfer is permissible. 80 A restraint on the right of the cosharers on the partition of the
property by metes and bounds is not partial but absolute one, void under Section 10. 81 Where there was a
Page 5 of 29
condition in a partition deed that in case any of the sharers desired to sell the share allotted to him (or her), it
shall be sold to whomever amongst the other sharers who offer to purchase it, it was held that it was a limited
restraint, and was valid. 82 But a restrain that the owners of a share could only sell it to the members of his
community is only a partial restraint and valid in law. 83
A condition in the sale deed that the purchaser when he intends to transfer the conveyed property, he shall first
offer to the vendor at the market price is a condition partial restraint and not void, Section 10 is not attracted. 84
A condition in the policy decision of the Government for regularizing possession of hutment by trespassers, that
such persons shall not transfer the land for ten years is not absolute restraint, but partial restraint, not hit by
Section 1085 .
Will by a person having limited interest in property. —Where a person has

limited interest in the property e.g. only for maintenance during life time, he/she has no right to execute a Will in
respect of the said property. 86
Various modes of restricting alienation. —Every restriction, however limited

in character, upon the right of alienation is not invalid in law. 87 One has to say whether the case falls in any of
the exceptions which have been allowed, such, for instance, as those admitted by Sir George Jessel in the
much discussed case in re. Macleay , 88 where a devise was "to my brother J on condition that he never sells
out of the family" followed by gifts to other relatives and the Master of the Rolls said, "Now you may restrict
alienation in many ways. You may restrict alienation by prohibiting a particular class of alienation, or you may
restrict alienation by prohibiting it to a particular class of individuals, or you may restrict alienation by restricting
it to a particular time. In all those ways you may limit it, and it appears to me that in two ways, at all events, this
condition is limited. First, it is limited as to the mode of alienation, because the only prohibition is against selling.
There are various modes of alienation besides sale; a person may lease, or he may mortgage, or he may settle;
therefore, it is a mere limited restriction on alienation in that way. Then again, it is limited as regards class; he is
never to sell it out of the family but he may sell it to any one member of the family. It is not, therefore, limited in
the sense of there being only one person to buy; the will shows there were a great many members of the family
when she made her will; a great many are named in it; therefore you have a class which probably was large,
and was certainly not small. There it is not, strictly speaking, limited as to time, except in this way, that it is
limited to the life of the first tenant in tail; of course, if unlimited as to time, it would be void for remoteness
under another rule. So that this is strictly a limited restraint on alienation, and unless Coke upon Littleton has
been overruled, or is not good law, this is a good condition." Restrictions as to time and individuals are also
recognized in this country.
The exposition, perhaps, tends to support the view that a restraint on alienation qualified as to time may be
valid. These were the observations of Mookerjee, J. where a clause for restraint upon alienation by the
reversioners in a deed of family settlement between two Hindu widows and the reversionary heirs, although
held to be bad in view of Section 11, was held to be binding on the alienees from the reversioners who had
accepted a mortgage contrary to the provisions of the family settlement on the ground that the object of the
restraint on alienation by the reversioners was for the protection of the widows to receive maintenance from
what had been the estate of their husbands. 89 A contract between two Shia Mahomedans in compromise of a
litigation provided that the female party thereto should be the absolute owner and free to make any transfer she
pleased within the ambit of the family but not to a stranger. It was held that this was a partial restraint on
alienation and was not repugnant. 90
On the same day as the deed of gift the donee executed a registered deed not to alienate the property without
the knowledge, consent and permission of the donor and that if he did so he would return the property to the
donor. It was held that the effect of the two documents was that on the happening of a specified event which did
not depend on the will of the donor the gift should be suspended or revoked under
Section 126 of the Transfer of Property Act and that in this view the agreement
did not contravene the provisions of Section 10, there being no absolute restraint on the transferree.91 The
same principle was applied to a Mahomedan gift prior to the passing of the Act. 92 But a condition restraining
the grantee from transferring the property to any person other than the grantor has been held to amount to an
absolute restriction on the right of transfer and void. 93 So also where alienation was permitted only on the
ground of necessity. 94 So also a right of alienation to be exercised only in favour of a certain class of persons
and no others is a restraint and therefore void. 95 Again, an absolute restraint limited to a period of uncertain
duration is void. 96
Page 6 of 29
As to leases, unless there is a restriction against alienation of a portion, a restraint upon alienation of the
demised premises does not prevent an alienation of a portion. 97
Increase of rents. —A restriction against increase of rents is void. 1
Limitation. —In English Law the word "limitation" defines the interest which a
grantee is intended to take, that is "the extent of the feoffee’s interest should be ascertained by proper technical
words. Thus if it were intended to convey an estate of inheritance to the feoffee it was essential that the gift
should be made to him and his heirs..." This necessity of using the word heirs to make out or limit an estate in
fee seems to have been derived from the times before the alienation of land was freely permitted and though
tenants in fee simple were afterwards enabled to dispose of their lands so as to defeat the expectation of their
heirs, the liberty so gained was treated as an incident to their estates so that what remained essential on the
gift of a fee simple was to use apt words to confer an hereditary estate, to which the law would annex the power
of alienation. 2 In re. Machu 3 it was said that the word "limitation" is ordinarily
used to express a more general idea, viz. , the definition or circumscription in any conveyance of the interest
which the grantee is intended to take. The
Indian Succession Act, 1925 , while laying down rules of construction, mentions
inSections 93 and 94 certain instances of limitations. The limitation of a remainder in tail or in fee simple to a
person who had already an estate of freehold, as for life, was governed until 1926 by a rule of law known by the
name of the "Rule in Shelley’s case". This rule is abolished as regards instruments coming into operation on or
after 1st January 1926. 4 The rule of Shelley’s case is of feudal growth and not one applicable to India where
deeds would be construed independently of the English rules of tenure.
Limitation of descent. —Lease was granted by a patta and an ekrarnama the

letter deed providing that the lessee’s daughter or daughter’s son should not be entitled to succeed as heirs. It
was held that a subject has no right to impose on land or other property any limitation of descent at variance
with the ordinary law and that the proviso was void. 5
Creation of future interest. —The rule in the section affects the creation of
future interest in property. It has no application to a charge where a present interest is created and there is no
transfer of an interest in property which is merely made security for payment of money. 6
Family settlement. —Such a deed is not a transfer within the meaning of the
section and restraint on alienation would be valid and enforceable when forming part of family settlement. 7
Section 10 of the Transfer of Property Act applies to transfer the property. It is
not applicable to the family settlement which only recognize pre-existing rights.8
Partition, family settlement. —

Section 10 of the T.P. Act applies to transfer; and family settlement/partition are
not covered by the expression "transfer" occurring in the section.9 But where a term in a family settlement
imposes an absolute restraint on alienation, on the grounds of public policy it would be invalid and
unenforceable on general principles of law. 10
Upon partition of joint family property, share of each coparcener is determined and separated. 11
Section 10 can have no application to family arrangement into which two or more persons may choose to enter
under which an absolute estate is created in favour of the some parties and a limited estate is created in favour
of others. 12
Section 10 would not apply to the parties and family settlement, since there is no transfer of title contemplated
in a partition. However on the ground of sound public and total restraint on the right of alienation in respect of
immovable property which prevents free circulation is to be held void, but, any partial restraints or limitation
would be valid and binding. 13 The restriction of alienation by the allottee in a deed which is either a partition
deed or a family arrangement deed in respect of joint family properties is not hit by and does not come within
the purview of
Section 10 of the Transfer of Property Act .14 Where by a family settlement
dated 31.3.1961, the married daughter of the settlee was denied inheritance in the property, the married
Page 7 of 29
daughter was not in the line of succession under the then existing un-amended Section 171 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950, it is only after the amendment of Section 171 by Section 40 of
U.P. Act 37 of 1985, the married daughter was given a right to succeed to her father over agricultural land, the
parties understood the law as it was on 31.3.1961 the date the family settlement was arrived at, held, the family
settlement as such, on the date it was entered into by the parties was not against the public policy and did not
violate Section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 15 In the instant case the
settlees were given the right to enjoy the properties during their life time and if during their life time, for more
beneficial enjoyment they were compelled to sell the property, then such sale would be followed during their life
time and after their life time the purchasers have to give up the property in favour of the absolute owners
namely, male issue of the settlees. Held, there was nothing repugnant to any law in the various provisions of
the settlement deed. Section 10 was not at all attracted. 16
A condition in a family settlement which imposes ban on the transfer/alienation of the property is inoperative
and void. 17 To impose a total restrain on transfer of property or to impose rules which keeps it out of circulation
for ever offends public policy. 18
Hindus. —The principle underlying the section has been applied in the case of
Hindus including married women. 19
Ban on Shebait’s power to alienate the property. —The primary, nay, the
sole object, of the dedication of the property to deity is performance of service and worship of the deities. As a
necessary corollary to this paramount object of dedication is the power of shebait or a mahant in charge of the
dedicated property to alienate wholly or in part such property for the purpose of keeping up the religious
worship and for the benefit and preservation of the property. A mahant or shebait has power to incur debts and
alienate the dedicated property either by sale or mortgage "in a case of need or for the benefit of the estate". It
is, therefore, recognized that for unavoidable necessity the mahant or the shebait in charge of the property for
the time being can create even a permanent lease of the debutter property. 20 The rule against perpetuities
does not apply to a religious endowment, a condition in the deed, that the manager or shebait or trustee, acting
for the idol, in whose favour the endowment is made, shall not be able to dispose of or part with the property is
valid and does not offend
Where property has been dedicated to an idol, imposition of condition restricting the power of the shebait to
alienate the property even in event of necessity for the proper maintenance of idol is void. 22
Mahomedan Law. —The rule in this section has been applied to Mahomedans
including married women. 23 A settlement by a Mahomedan in favour of his sons "with all rights absolute"
prohibiting alienations but giving to their descendants the right of alienation was held to confer an absolute
estate. 24
Exemption. —Where an absolute interest is transferred the covenant in

restraint of alienation is void 25 even though embodied in a separate instrument. 26 The section makes two
exceptions, one in the case of a married woman not being a Hindu, Mahomedan or Buddhist, the section
permitting restraint on her power of alienation during marriage. The other exception is in the case of the lessor
where the condition is for his benefit or those claiming under him. Restraints imposed by statute are not within
the rule.
Where property dedicated to idol—Applicability of Section 10. —The

prohibition against a condition absolutely restraining the transferee from transferring the interest transferred to
him as laid down in
Section 10, Transfer of Property Act does not affect the idol to whom the
transfer is made, because an idol by itself is incapable of making ay transfer or disposing of its interest in the
property. If the disposal has to be made, it has to be made by someone else and the conditions under which
that some one else can make the disposal must be governed by some other law and not be
Section 10,Transfer of Property Act .27
There is nothing in law to prevent a donor from laying down as one of the conditions of the endowment, that the
Page 8 of 29
manager or shebait or trustee, acting for an idol, in whose favour the endowment is made, shall not be able to
dispose of or part with the property. 28
The first and foremost duty of a Mahant or a Shebait of an idol is to preserve and maintain the idol, that is to
say, as an object of worship inasmuch as a temple, the abode of the idol is to be preserved and maintained at
any cost. Property other than the temple endowed for the purposes of the idol may have to the alienated if it is
absolutely legally necessary for the purpose of preservation of the idol and its temple and there is no restriction.
No Shebait or Mahant/Manager can, therefore, have the right of alienating the temple itself. As the temple has a
special sanctity distinct from other endowed property, to alienate the temple itself is to cut root of the very
existence of the idol in the habitation intended by the founder. Hindu sentiment views the alienation of a temple
as a sacrilege. 29
Annuity. —Annuity made payable personally to the judgment-debtor and

charged on property may be attached and sold in execution. A clause making the allowance inalienable and
payable only to the vendor is an illegal restraint on alienation. Such an annuity is not a mere right to receive
future maintenance within clause (n) of the proviso to
Section 60 of the Code of Civil Procedure, 1908 .30
Agreement by donee not to alienate. —On the same day as the deed of gift
the donee executed a registered deed not to make a gift or transfer or sell or mortgage the property without the
knowledge, consent and permission of the donor, and if he did so the property was to go to the donor. The two
deeds forming part of the same transaction, were construed as not contravening the provisions of Section 10
and that the case was covered by
Gift. —The incidents of a gift between Mahomedans are governed by their law
and not by the Act. A provision in a deed of gift purporting to take away the donee’s power of transfer being
invalid under Mahomedan Law the donee takes an absolute estate, 32 but a condition in a gift that the land was
liable to be taken back if the donee transferred it, was held not to be repugnant on the ground that the gift was
subject to a power of revocation. 33
It is now settled law that a gift which is a transfer of property is subject to the rules enacted in Chapter II of the
Transfer of Property Act . If an absolute gift is made subject to a condition
restricting alienation, the condition would be void under
A condition imposed in the gift-deed that the donee would not transfer or alienate property in any manner during
the life time of the niece of the donor as she had been given right to possess the property during her life time
was held invalid in view of the provisions of Sections 10 and 11. 35
Where an unconditional gift deed and an agreement containing certain conditions about the said property
subject-matter of the gift-deed are executed the same day, both the deeds are to be read together and part and
parcel of the same transaction. 36 The donor had executed gift deed in respect of a certain plot of land for the
construction of the college building. Simultaneously the same day an agreement was also executed between
the donor and the donee, which provided that there were built up chabutras and samadhi of the donor’s father
and mother in the said plot, which shall be maintained in the same condition. The agreement further provided
that the college building shall be constructed within a period of six months, on failure the gift deed shall be deed
to have been cancelled, the plaintiff shall be considered to be the owner of the land, till the building is raised,
the donor shall remain in possession of the land, and the plaintiff shall be entitled to take appropriation action
under the law. If the college building is raised with the stipulated period, the donor shall have no right in the
land. All these terms and conditions though were not incorporated in the gift deed, but there were to be treated
as part of the gift deed. In view of these terms and conditions, the gift-deed was held not absolute and or
unconditional. 37
Married woman. — Section 8 of the Married Woman’s Property Act, III of

1872, deals with a wife’s liability for post-nuptial debts.
Section 10 of the Transfer of Property Act recognizes and renders enforceable
conditions in restraint of anticipation and is not affected by Section 8 of the Married Woman’s Property Act. The
Page 9 of 29
income of property belonging to a married woman subject to a restraint on anticipation, accruing due after the
date of a decree against such married woman’s separate property under Section 8 of the Married Woman’s
Property Act is not liable to attachment in execution of such decree.38 The exemption is, however, during the
marriage and in favour of a woman not being a Hindu, Mahomedan or Buddhist. The Married Woman’s
Property Act extends to Sikhs and Jains as well. To Section 8 of the Married Woman’s Property Act a proviso
has been added by Section 2 of Act XXI of 1929 exempting from attachment and sale property transferred to a
woman or for her benefit on condition that she shall have no power during her marriage to transfer or charge
her beneficial interest therein. In interpreting Section 8 of that Act the Calcutta High Court, in Hippolite v. Stuart
, 39 held that the terms of the section authorized judgment to be given even against separate property which
was subject to a restraint upon anticipation. The Bombay High Court 40 though doubting, followed this decision.
A dictum to the contrary of FARRAN, J., in the Bombay case was followed by the Madras High Court 41 which
on a full consideration of the whole question declined to follow the Calcutta decision. However this may be, the
question is now settled by the terms of
Section 10 of the Transfer of Property Act, 1882 , and the proviso to Section 8
of the Married Woman’s Property Act. As explained by Sir George Jassel in In re Ridley Buckton v. Hay , 42
restraint on anticipation is only a restraint on alienation and is an exception established by equity in favour of
married women to the general rule of law which regards conditions in transfers of property restraining alienation
as null and void. Whether the words are without any power of "alienation" or of "anticipation" the effect is the
same. 43
Partition. —A right to partition is one of the incidents of ownerships in property.

A covenant making it impartible at all times to come is a restraint on alienation, it being settled law that as
against parties not actually convenanting a restriction against partition is void. 44 A clause is a deed of partition
prohibiting alienation except with the consent of the other sharer is void as opposed to public policy. 45
Section 10 of the T.P. Act applies to transfer; and family settlement/partition are
not covered by the expression "transfer" occurring in the section.46
Section 10 can have no application to family arrangement into which two or more persons may choose to enter
under which an absolute estate is created in favour of the some parties and a limited estate is created in favour
of others. 47
Section 10 would not apply to the parties and family settlement, since there is no transfer of title contemplated
in a partition. However on the ground of sound public and total restraint on the right of alienation in respect of
immovable property which prevents free circulation is to be held void, but any partial restraint or limitation would
be valid and binding. 48
Where under a partition deed, properties were allocated to share of father and mother with stipulation that they
would enjoy it during their life time in manner they liked, but after their death property would devolve in equal
shares on two sons, it was held that the partition was absolute and not limited estate was granted to the
parents. 49
The point in issue was whether the deed effected an outright partition. The restrictions on alienation indicated
that the parties did not intend to effect an outright partition, and they wanted division for convenience of
enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a
division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were
not hit by
Where the deed indicated that it did not effect an outright partition, did not declare that there was a complete
disruption of the family, the members of the two branches were restrained from incurring debts binding on the
family properties and from alienating the properties or any portion thereof and granting any leases except in the
ordinary course of management, these restrictions were obviously placed for the purpose of preserving the
family properties intact for the benefit of both branches and as such the conditions restraining alienations were
not void under
Page 10 of 29
Where by a family arrangement a certain property in full proprietorship is given to a member with restriction that
he shall not alienate the property, the income of which would be used for charitable purpose, the restriction
would be binding on that member, but not his successors it offending rule against perpetuity envisaged in
Section 10. 52 But in case the member did not use the income of the property allotted to him for charitable uses,
the other members would have right to take the property, the said condition did not violate the rule against
perpetuity. 53
Distinction between a contract for purchase or an option to purchase and

a conditional limitation. —In London and South-Western Railway Co. v. Gomm
54 Jessel, M.R., observed, that between these two there was in a Court of Equity no distinction. In each case
there was the same fetter on the estate and on the owners of the estate for all time and the rules as to
remoteness applied to one case as much as to the other. By way of example, he said: "Is there any difference
in substance between the case of a limitation to A in fee with a proviso whenever a notice in writing is sent and
100 paid by B or his heirs to A or his heirs the estate shall vest in B and his heirs and a contract that whenever
such notice is given and such payment made by B or his heirs to A or his heirs, A shall convey to B and his
heirs?" The same rules applied where the option was given for charitable purposes, inasmuch as the interest of
the charity did not become effective till the happening of the future event. 55
Sale-deed with a re-conveyance clause. —Where agreement provided that if

the vendor offers the sum of Rs. 1200/- within a period of five years to him, the vendee would transfer the land
back to him, it was held that it was not hit by Section 10 or Section 11. It permitted the transferee to part with or
dispose of his interest to any person but not within the period of five years; the transferee was not absolutely
restrained from transferring the land to any one. 56
In the instant case, an agreement to re-convey property within a period of ten years was executed between the
vendor and the vendee. Subsequently the vendor transferred his rights to the plaintiff. Held, the plaintiff was
entitled to re-purchase the property in view of the agreement between the parties. The right of re-purchase is
assignable/transferable, and cannot be treated as personal to the contracting parties. 57
Resumption. —The power to resumption of the property is not unqualified. A

right of transfer in a property is a necessary incident of ownership and any restriction of such user shall be
strictly construed. Even as per
Section 10 of the Transfer of Property Act , a property which is transferred
subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from
parting with or disposing of his interest would be void, except in the case of a lease where the condition is for
the benefit of the lessor. The power of resumption shall be statutorily rooted and the covenant to restrict the
transfer ought to be available through specific legislative sanction and cannot be always inferred merely
because the transfer instrument contains restrictions.58
Pre-emption. —A clause in a deed of sale that if either party to the deed

should wish to transfer the whole or part of his share to a third person the other party should have the right to
pre-empt, is common in India having for its object the desire to keep out third persons. Such a clause, although
not amounting to an interest in the land, entitles the parties to it to the benefit of the obligation arising out of the
contract. It is not a restraint on alienation. 59 A pre-emptive right given under a document does not offend
Section 10 of the Transfer of Property Act ; it is only a partial restraint.60
Premium. —A condition against transfer is often inserted merely as a

foundation for a claim to nazar or premium when a transfer is made and if it is not void it does not render an
assignment or transfer of the lease inoperative when there is no clause for re-entry. 61
Bequests. —
Section 10 of the Transfer of Property Act applies to transfers inter vivos and
not to testamentary dispositions. 62 Restrictions imposing conditions repugnant to an absolute estate are void.
63
Once an absolute right had been vested in the legatee, in respect of the properties bequeathed to him by way
of a Will, no further condition could have been imposed, as per
Page 11 of 29
Sections 10 and
11 of the
T.P. Act , 1882, restraining the alienation of the property or by creating a
restriction repugnant to the interest created in such a property.64
Compromise, settlement of disputed claims—not a transfer. —The section

is to be construed strictly and must not be used to defeat well recognized provisions. By a family settlement an
estate contrary to law cannot be created but conditions may be introduced which though not valid in the case of
other transfers would be enforceable when forming part of family settlements. A family settlement is not a
transfer within the meaning of the section but is a recognition of pre-existing title or of conflicting claims. 65
Where an impugned condition is embodied in an agreement and not in a document of transfer and moreover
the agreement does not amount to an absolute restraint,
Section 10, T.P. Act would not apply.66
Section 10 of the T.P. Act does not apply to an agreement embodied in a
compromise decree.67 Where in an agreement there is not absolute restraint on the transfer but contains a
clause for pre-emption, Section 10 would not apply. 68
A compromise or family arrangement is not a transfer of property as defined in Section 5 of the Act. The
distinction is pointed out by Lord Moulton in Musammat Hiran Bibi v. Musammat Sohan Bibi , 69 where the
compromise was held not to be an alienation but a family settlement in which each party took a share of the
family property by virtue of an independent title which was to that extent and by way of compromise admitted by
other parties. A clause in a compromise decree that a party thereto and his heirs shall have no power to
alienate or encumber the property by gift, mortgage or sale, is no bar to the property being attached and sold. 70
In a Lahore case it was held that a restriction contained in a compromise on the power of alienation is a
derogation from the full proprietary rights and is consequently void. 71 A Hindu executed three documents,
described as mirash talukdari puttas and patni talukdari pattas , the former implying a permanent and heritable
estate, the latter importing a permanent heritable estate subject to a fixed rent. By the said three leases he
granted immovable property to his daughter, her sons and their sons successively and her daughters subject to
a fixed rent with the right to transfer by sale or gift, according to conditions, namely, (1) that the properties were
not to pass to the heirs of the grantee’s daughters, (2) that they were not to be transferred by gift except to a
limited extent for religious purposes, and (3) that the grantor and his heirs were to have a right of pre-emption in
certain events; there was also a defeasance clause whereby the properties were to revert, upon a failure of the
designated heirs of the grantee. The appellants contended that the leases conferred a series of life-interests,
but that if the grantee took absolutely, the property passed to them, as heirs of the grantor, the grantee having
died without heirs as designated.
Held, that as the words of gift in the second and third leases constituted the grantee malik and in the first
equivalent words were used, the grantee took an absolute estate with power to transfer by deed or will, unless
the context indicated an intention to the contrary, and that the conditions had not that effect. Conditions (1) and
(2) appeared rather to be intended as conditions upon an absolute estate—so regarded (1) was void under
Tagore v. Tagore , 72 as an attempt to alter the legal course of succession, and (2) was void under Lalit Mohun
Singh Roy v. Chukkun Lal Roy , 73 as a repugnant restriction. The defeasance clause was void as it was not a
valid executory gift, the event referred to being an indefinite failure of male issue; Soorjeemoney Dossee v.
Denobundoo Mullick 74 distinguished. The condition as to pre-emption was
disposed of by their Lordships as being inconsistent with the notice of an estate for life. 75 In the under
mentioned case 76 where by a compromise deed absolute inheritance was given to a person, a subsequent
clause in the deed which imposed absolute restraint on the power to alienate the property was found invalid.
Compromise/settlement of disputed claims between the parties is not a transfer; the restrictions contained in
Section 10 would not apply. 77
Punjab. —The section embodies an equitable principle which applies to the

Punjab. 78
Government Grant. —On any principle a Government grant cannot be

equated to a disposal by a private person in favour of another private person. 79 A grant made by Government
or by its authorised officer in accordance with law cannot be treated as a transfer within the meaning of
Page 12 of 29
Section 5 of the T.P. Act . As such Section 10 has no application to Government

grants.80
The legal principle of rule against perpetuities or that an absolute restraint on an alienation being opposed to
public policy is void incorporated in Section 10 is not applicable to Government grants. 81
Where in a Government grant condition in the nature of permanent/or partial embargo on the transfer of the
land is imposed, the condition does not offend the rule against perpetuities incorporated in Section 10 as such
is not void, but is a valid condition. 82
Grant made by the Crown with a restraint on alienation is valid. The Crown Grants Act (XV of 1895) enacts that
grants by the Crown of estates unknown to the law are not invalid. 83
Conditions in a lease for the benefit of the lessor. —Another exception to

the rule enunciated in the section is made in the case of a lease provided the condition restricting alienation is
for the benefit of the lessor or those claiming under him. The usual form of restraining a lessee is that he shall
not assign, sub-let or under-let without the written consent of the lessor, followed by the phrase "such consent
not to be unreasonably withheld." A condition which retrains the lessee from alienating the leasehold property is
not in any way illegal or void. Section 10 does not carve any exception with regard to permanent or temporary
lease. It applies to permanent or temporary lease. 84 Unless on a breach of condition a right of re-entry is
reserved to the lessor, a condition cannot be for his benefit, hence a condition in a lease restraining alienation
not reserving to the lessor a right of re-entry would be void, and this is rendered clear by the amendment of
Section 111(g) and the addition of Section 114A by the
Amending Act , 20 of 1929, wherein the word "condition" and not "covenant" is
used.85
In a lease, permanent or otherwise, when no right of re-entry is reserved a covenant against alienation is not
operative. The principle is that the covenant is inconsistent with the interest sought to be created by the
instrument and the assignment is operative notwithstanding the covenant, 86 and on that footing the lessor is
entitled to damages 87 and not to injunction or forfeiture of the lease. In dealing with clauses in restraint of
alienation in leases, the Courts have construed them not as conditions but as covenants following Shaw v.
Coffin , 88 approved in Crawley v. Price , 89 and distinguished from Doe v. Watt , 90 where well-known words of
condition are used. A power of re-entry reserved only to the lessor is wide enough to admit his "heirs,
successors or assigns." 91 Where a lease was made before the
Transfer of Property Act , the principles of law enunciated in Sections 10 and
111 (g) were applied.92 A covenant in a lease provided that if the lessee sold any portion of the land or the
trees one-fourth share of the proper value should be paid to the lessor otherwise the latter should not be bound
and the sale should not be valid. It was held that this was a covenant running with the land and the purchaser
was bound to pay the one-fourth share. 93
A similar principle was reiterated where the plaintiffs claimed to have acquired proprietary interest as well as
several subordinate rights in certain lands. The defendants set up a title to the disputed land under a lease of
27th July 1901, granted by one N.D. In 1901 the sons of G.D. were the darpatnidars under a lease of 6th
September 1886 by one J.M., who was a patnidar of a half share. The purport of the lease was to the effect that
the darpatnidars should have full rights to grant leases and create encumbrances subject only to the restriction
that if the darpatni was sold for arrears of rents the subordinate title created by the darpatnidar should at the
same time come to an end. N.D., one of the sons of Gangaram, was appointed common manager of the estate,
and as such granted, on the 27th July 1901, to the defendant’s predecessors in title a permanent under-tenure.
The darpatnidars having defaulted to pay rent, J.M. obtained a decree and in execution purchased the darpatni
interest and such sale was confirmed on the 20th March 1905. The receiver of the estate of J.M. appointed by
decree in an administration suit in respect of a half share without the permission of the District Judge, granted a
darpatni to the plaintiff in 1906; it was held that the condition in the lease not being an absolute restraint on
alienation and being for the benefit of the lessor, Section 10 applied; that the restriction was one of the incidents
of the under term and ran with the land so as to be operative not only between grantors and grantees but also
their representatives in interest and the holders of derivative titles from them. 94
A right of transfer is not a necessary incident of the legal status of a perpetual lessee, and therefore a condition
making the rights of the perpetual lessee of a village nontransferable but heritable is not illegal. 95
Page 13 of 29
Where a right of re-entry on breach of such condition is reserved by the lessor, the condition is immediately and
demonstrably for the benefit of the lessor. But even in the absence of such condition, facts and circumstances
might be brought out to show that the condition was for the benefit of the grantor though that benefit may not be
immediate. 96
The mere existence of a condition in general terms against sub-letting is not of itself sufficient to prove that the
condition is for the benefit of the lessor within the meaning of Section 10. There must be something else either
in the circumstances of the case or in the nature of the property or the wording of the lease from which it might
be inferred that it was for the benefit of the lessor. 97 A condition in a permanent lease restraining alienation is
not void. 98
Involuntary alienation. —An assignment by operation of law is not per se a

breach of a covenant against alienation. Weatherall v. Geering 1 may be
2
quoted as an authority; also Doe v. Carter . In the same case the distinction is made between an alienation
effected involuntarily by process of execution and a voluntary procuring of execution by the defaulting tenant
against himself, in order to bring about the alienation desired. In this latter case it was held that an alienation so
procured was a breach of the covenant. The restriction imposed by Section 10 has no application to an
involuntary alienation or alienation by operation of law such as an attachment and sale in execution of a decree.
3 Sections 10 and 12 of the Act relate only to transfers by act of parties. 4
Restrain on a member of society for alienating property. — Section 10

provides that where property is transferred subject to a condition or limitation absolutely restraining the
transferee or any person claiming under him from parting with or disposing of his interest in the property, the
condition is void. A condition imposed by bye-laws of a society on its member that he cannot alienate the
property to a non-Parsi would be prima facie illegal. 5
When a person accepts membership in co-operative society by submitting himself to its bye-laws and secures
an allotment of a plot of land or a building in terms of the byelaws and places on himself a qualified restriction in
his right to transfer the property by stipulating that the same would be transferred back to the society or with the
prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an
absolute restraint on alienation offending
Section 10 of the Transfer of Property Act . He has voluntarily submerged his
rights in that of the society.6 The fact that the rights of a member or an allottee over a building or plot is
attachable and saleable in enforcement of a decree or an obligation against him cannot make a provision like
the one found in the bye-laws, an absolute restraint on alienation to attract
Section 10 of the Transfer of Property Act . Of course, it is property in the hands
of the member on the strength of the allotment. It may also be attachable and saleable in spite of the volition of
the allottee. But that does not enable the Court to hold that the condition that an allotment to the member is
subject to his possessing the qualification to be a member of the cooperative society or that a voluntary transfer
by him could be made only to the society itself or to another person qualified to be a member of the society and
with the consent of the society could straightway be declared to be an absolute restraint on alienation and
consequently an interference with his right to property protected by 300A of the
Constitution of India .7
Restriction repugnant to interest created.
26 K. Muniswamy since deceased by L.Rs. v. K.

Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248) :
2001 (4) CCC 103 ).
27 Zoroastrian Co-op. Hsg. Socy. Ltd. v. Dist

Registrar Co-op. Societies (Urban) , AIR
Page 14 of 29
2005 SC 2306 (2325, 2326) :

(2005) 5 SCC 632 [
LNIND 2005 SC 384 ] ; Alika Begum v.
Haji AAM Abdulla ,
2002 (2) CCC 119 (125) (Mad-DB);
Achammal v. Rajamanickam Karthikeyan, (2010) 2
MLJ 1210 (1216) (Mad).
28 Dulal Chandra Chatterjee v. Moni Mohan

Mukherjee , 2004 (4) Cal HN 563 (569) : 2005 (1) Cal LT 119 (Cal-DB); DCM Limited v. The State of Haryana,
(2010-3) Punj LR 629 (P&H)].

Registrar Co-op. Societies (Urban) , AIR 2005
SC 2306 (2325) :
(2005) 5 SCC 632 [
LNIND 2005 SC 384 ] ; Achammal v.
Rajamanickam Karthikeyan ,
AIR 2010 Mad 34 [
LNIND 2009 MAD 3158 ] (39).
30 Bhavani Amma Kanakadevi v. C.S.I. Dekshina

Kerala Maha Idavaka ,
AIR 2008 Ker 38 [
LNIND 2007 KER 622 ] (41):
(2008) 2 KLT 340 :
(2008) 1 KLJ 28 .
31 Pathak Haygriv Vishwanath v. Pathak Thakerlal

Manilal ,
AIR 1967 Guj 192 ; Zoroastrian Co-op.
Hsg. Socy. Ltd. v. Dist Registrar Co-op. Societies (Urban) , AIR
2005 SC 2306 (2325, 2326) :
(2005) 5 SCC 632 [
LNIND 2005 SC 384 ].
32 Pathak Haygriv Vishwanath v. Pathak Thakerlal

Manilal ,
AIR 1967 Guj 192 (194).
33 Vencatachellum v. Kabalamurthy ,
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358).
34 Nil Madhab v. Narottam Sikdar , 17 Cal 876; In

the matter of the West Hopetown Tea Co. Ltd. , 12 All 192; Golaknath v. Mathura ,
(1893) 20 Cal 273 .
35 Rani Mewa Kuwar v. Rani Hulas Kuwar. , 1 Ind

App 157 at p. 166 (PC)); Khunnilal v. Gobinda ,
(1911) 33 All 356 (PC); Kapura v.
Madsodan Das ,
AIR 1943 Lah 168 : 209 IC 609.
Page 15 of 29
36 Prithvi Chand v. Sunder Das ,

AIR 1946 Pesh 12 .
37 Muthuraman Chettiar v. Ponnusami ,

AIR 1915 Mad 1191 [
LNIND 1915 MAD 158 ]:
(1915) 29 MLJ 214 ; T.V. Sangam Ltd. v.
Shanmugha Sundaram ,
AIR 1939 Mad 769 [
LNIND 1939 MAD 120 ]; Vencatachellum
v. Kabalamurthy ,
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358).
38 Ninan Chacko v. The Deputy Commissioner,

Bangalore Rural District, Bangalore ,
2011 (5) Kar LJ 604 (Kar).
39 Ramchandraji Maharaj v. Lalji Singh ,

AIR 1959 Pat 305 (309) : (1959) 38 Pat
49.

AIR 1959 Pat 305 (309) : (1959) 38 Pat
49.
41 Jatru Pahan v. Ambikajit Prasad ,

AIR 1957 Pat 570 (573) (DB).
42 Jatru Pahan v. Ambikajit Prasad ,

AIR 1957 Pat 570 (573) (DB).
43 Brahama Nand v. Roshani Devi ,

AIR 1989 HP 11 [
LNIND 1988 HP 12 ] (13, 14).
44 Jagtar Singh v. State of Punjab, AIR 2012 P&H

145 (157) (DB).
45 Manohar v. Mahadeo ,
AIR 1988 Bom 116 [
LNIND 1987 BOM 434 ] (117, 118) : 1987
Mh LJ 1118 ; Gayashi Ram v. Shahabuddin ,
AIR 1935 All 493 (DB).
46 Giani Ram v. Balmakand ,

AIR 1956 Punj 255 : (1956) 58 Punj LR
114; Brij Devi v. Shiva Nanda ,
AIR 1939 All 221 : (1939) All 298.
Page 16 of 29
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358).
48 Ittiyachan v. Tomy ,
2001 (3) KLT 117 [
LNIND 2001 KER 349 ] (121, 122) (DB).
49 Bradley v. Piexoto , (1797) 3 Ves. Jun. 324 : 30

ER 1034; Ross v. Ross , (1819) 1 Jac. & W. 154 : 37 ER 334; Ware v. Cann , (1830) 10 B. & C. 433 : 109 ER 511.
50 Brandon v. Robinson , (1811) 18 Ves. 429 : 34

ER 379.
51 Achammal v. Rajamanickam Karthikeyan ,

AIR 2010 Mad 34 [
LNIND 2009 MAD 3158 ] (39).
52 (1617) J. Bridg. 132 : 123 ER 1253.
53 (1626) Benl. 178 : 73 ER 1038.
54 (1805) 6 East 173 : 102 E.R 1253.
55 (1853) 18 Beav. 330 : 52 ER 131.
56 (1875) L.R. 20 Eq. 186.
57 (1853) 18 Beav. 330 : 52 ER 131.
58 (1805) 6 East 173 : 102 ER 1253.
59 (1875) L.R. 20 Eq. 186.
60 (1884) 26 Ch. D. 801.
61 (1888) 38 Ch. D. 176.
62 (1929) 2 Ch. 131.
63 (1805) 6 East 173 : 102 ER 1253.

Page 17 of 29
64 (1875) L.R. 20 Eq. 186.
65 (1617) J. Bridg. 132 : 123 ER 1253.
66 (1884) 26 Ch. D. 801.
67 Hood v. Oglander , (1865) 34 Beav. 513 : 55

ER 733.
68 Ludlow v. Bunbury , (1865) 35 Beav. 36 : 55 ER

807.
69 Re. Jones’ will,

(1870) 23 LT 211 ; Re. Smith, Smith v.
Smith , (1916) 85 LJ Ch. 473.
70 Hunt, Foulston v. Furber , (1876) 3 Ch. D. 285.
71 Corbett v. Corbett,
(1888) PD 7 .

AIR 2008 Ker 38 [
LNIND 2007 KER 622 ] (40) :
2008 (2) KLT 340 .

AIR 2008 Ker 38 [
LNIND 2007 KER 622 ] (42) :
2008 (2) KLT 340 .
74 Gardiner (W) & Co. v. Dessaix,

(1915) AC 1096 .
75 DCM Ltd v. State of Haryana, 2010 (3)

1559 PLR 629 (P&H).
76 Rajan v. Kumari Kamalam, 2010 (2) KLT SN 30

(C.No. 37) : 2010 (2) GLR (NOC) 52 (SC) :
ILR 2010 (2) Ker 810 (SC).
77 Gouri v. Benny, 2012 (3) KLT SN 71.

Page 18 of 29
78 Canbank Financial Services Ltd. v. Custodian ,

AIR 2004
SC 5123 (5132) :
(2004) 8 SCC 355 [
LNIND 2004 SC 892 ] ; Thomas v. Dr. A.A.
Henry ,
AIR 2008 (NOC) 1414 (Ker-DB); Atanlal
v. Ramanujdas ,
AIR 1944 Nag 187 : ILR 1945 Nag 174 ;
Mohomed Raza v. Mt. Abbas Bandi Bibi , AIR
1932 PC 158 ; Kaliyani Amma v. Narayani
Amma,
1949 TLR 116 ; Velayudhan Nair v.
Narayani Amma , AIR 1957 Trav-Co. 156 (157) :
(1956) Ker LT 691 .; Vencatachellum v.
Kabalamurthy,
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358) :
ILR 1951 Mad 535 .
79 Canbank Financial Services Ltd. v. Custodian ,

AIR 2004
SC 5123 (5132) :
(2004) 8 SCC 355 [
LNIND 2004 SC 892 ].
80 Alika Begum v. Haji A.A.M. Abdulla ,

2002 (2) CCC 119 (125) (Mad-DB);
Pareshar v. Municipal Board, Mount Abu, 1997
AIHC 1897 (1899) (Raj); Ramchandra
Bhakta v. Krishna Chandra Bhakta , 1999
AIHC 4194 (4196) : 1999 (2) Ori LR 105.
81 Alika Begum v. Haji AAM Abdulla,

2002 (2) CCC 119 (125) (Mad-DB).
82 Velayudhan Nair v. Narayani Amma , AIR 1957

Trav-Co 156 (157) :
1956 Ker LT 691 .
83 Alika Begum v. Haji AAM Abdulla,

2002 (2) CCC 119 (125) (Mad-DB).
84 Ramchandra Bhakta v. Krishna

Chandra
Bhakta , 1999
AIHC 4194 (4196) : 1999 (2) Ori LR 105.
85 Paresar v. Municipal Board, Mound Abu , 1997

AIHC 1897 (1899) (Raj).
86 B. Rajegowda v. H.B. Shankargowda ,

AIR 2006 Kant 48 [
LNIND 2005 KANT 496 ] (53) :
2006 AIHC 401 .
Page 19 of 29
87 Mahananda Roy v. Saratmani Debi, (1911) 14

CLJ 585.
88 (1875) L.R. 20 Eq. 186.
89 Chamaru Sahu v. Sona Koer, (1911) 14 CLJ

303.
90 Muhammad Raza v. Abbas Bandi ,

(1932) 7 Luck 257 : 59 IA 236.
91 Ma Yin Hu v. Ma Chit May , AIR 1929 Rang

226 (228).
92 Hussain Khan v. Nateri ,

(1871) 6 MHC 356 .
93 Asghari Begam v. Moula Baksh ,

AIR 1929 All 381 .
94 Rai Deo v. Brahmdeo Rai ,

AIR 1937 All 235 .
95 Teja Singh v. Moti Singh ,

AIR 1925 Oudh 125 .
96 Nageshar v. Mata Prasad ,

AIR 1922 Oudh 236 .
97 David Cutinha v. Salvadora , (1927) 50 Mad

331 ; Chatterton v. Terrell,
(1923) AC 578 .
1 Attorney General v. The Master & Fellows of

Catherine Hall, Cambridge , (1820) Jac. 381 : 37 ER 894.
2 WILLIAMS on Real Property, 24th Ed., pp. 426, 427.
3 (1882) 21 Ch. D. 838.
4 WILLIAMS on Real Property, 24th Ed., p. 211; statute 15 Geo. 5, Ch. 20, Section
131.
Page 20 of 29
5 Panchubala Deby v. Jatindra Nath ,

(1926) 53 Cal 816 ; Rajindra Bahadur v.
Raghubans Kunwar ,
(1918) 40 All 470 .
6 Kanai Lal v. Basanta Behari ,

AIR 1926 Cal 451 .
7 Hanuman Sahu v. Abbas Bandi ,

AIR 1929 Oudh 193 ; Ahmad Azim v. Safi
Jan ,
AIR 1926 Oudh 561 ; Mata Prasad v.
Nageshar Sahai ,
(1925) 47 All 883 : 52 IA 398; Hariram v.
Ram Asrey ,
AIR 2006 All 331 (333) :
2006 AIHC 3725 ; Parvathi Pillai
Bhageerathi Pillai v. Neelam Nadar Sothi Nadar , AIR 1955 Trav-Co. 231 :
1955 KLT 299 .

AIR 2006 All 331 (332) :
2006 AIHC 3725 .
9 Prithmi Chand Chandumal v. Sunder Das Shital

Mal ,
AIR 1946 Pesh 12 : 228 IC 141; K.
Muniswamy since deceased by L.Rs. v . K. Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (249, 250) :
2000 (6) Kant LJ 487 ; Jatru Pahan v.
Ambikajit Prasad ,
AIR 1957 Pat 570 (DB); Parvathi Pillai
Bhageerathi Pillai v. Neelam Nadar Sothi Nadar , AIR 1955 Trav-Co. 231 :
1955 KLT 299 ; Hariram v. Ram Asrey ,
AIR 2006 All 331 (333) :
2006 AIHC 3725 .
10 Prithvui Chad v. Sunder Das ,

AIR 1946 Pesh 12 : 1946 Pesh LJ 12.
11 Prabhakar Rajaramji Lambat v. Shantaram

Rajaramji Lambat ,
2010 AIHC 714 (715) (Bom).
12 Channabassappa v. Shankaraiah ,
1961 Mys LJ 443 ; K. Muniswamy since
deceased by L.Rs., v. K. Venkataswamy,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (250) : 2000 (6)
Kant LJ 487; Intaz Ali Chaudhury v. Said Mia Choudhury ,
2005 (2) Gau LR 429 (434) (Gau).
Page 21 of 29
13 K. Muniswamy since deceased by L.Rs., v. K.

Venkataswamy,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (250) :
2000 (6) Kant LJ 487 ; Intaz Ali Chaudhury
v. Said Mia Choudhury ,
2005 (2) Gau LR 429 (434) (Gau).

AIR 2006 All 331 (333) :
2006 AIHC 3725 .

AIR 2006 All 331 (333) :
2006 AIHC 3725 .
16 Ramasamy, S. v.Raman ,
2003 (1) Mad LW 468 (475) (Mad);
Badigera Veeravva v. Badigera Bhadrachari ,
1998 (1) Kar LJ 413 [
LNIND 1997 KANT 314 ] (Kant).
17 Fatima v. K. Saraswathi Amma ,

AIR 1986 Ker 56 [
LNIND 1985 KER 21 ] (59) (DB) :
1985 Ker LJ 433 :
ILR (1985) 2 Ker 218 .
18 Fatima v. K. Saraswathi Amma ,

AIR 1986 Ker 56 [
LNIND 1985 KER 21 ] (59) (DB) :
1985 Ker LJ 433 :
ILR (1985) 2 Ker 218 .
19 Asutosh Dutt v.
Doorga Churn ,
(1879) 5 Cal 438 : 6 IA 182; Chandi
Churn v. Sideshwari ,
(1888) 16 Cal 71 : 15 IA 149; Anantha
Tirtha v. Nagamuthu Ambalagaren , (1882) 4 Mad 200 ; Lalit Mohan v. Chukkun Lal ,
(1897) 24 Cal 834 : 24 IA 76; Lala Ram v.
Dal Koer ,
(1897) 24 Cal 406 ; Mahram Das v.
Ajudhia ,
(1886) 8 All 452 ; Bhairo v. Parmeshri ,
(1885) 7 All 516 ; Rukminibai v. Laxmibai ,
(1920) 44 Bom 304 ; D’Cruz v. Nagiah Naidu ,
AIR 1929 Mad 64 ; Muthukumara Chetty
v. Anthony Udayan , (1914) 38 Mad 867 : 24 IA 120; Kristna v. Mudaliar ,
(1871) 6 MHC 248 .

AIR 1959 Pat 305 (309) : (1959) 38 Pat
49.
Page 22 of 29
21 Sankar Nath Mullick v. Lakshmi Sona Datta ,

2004 (2) Cal LJ 393 [
LNIND 2004 CAL 373 ] (404) (Cal-DB).

AIR 1959 Pat 305 (309) : (1959) 38 Pat
49.
23 Muhammad Raza v. Abbas Bandi ,

(1932) 59 IA 236 ; Hanuman Sahu v.
Abbas Bandi ,
AIR 1929 Oudh 193 ; Hussain Khan v.
Nateri Srinivasa ,
(1871) 6 MHC 356 ; Lali Jan v.
Muhammad Shafi Khan ,
(1912) 34 All 478 ; Allibhai v. Dada ,
(1931) 33 Bom LR 1296 .
24 Abdul Rahiman v. Uthumansa ,

AIR 1925 Mad 997 [
25 D’Cruz v. Nagiah Naidu ,

AIR 1929 Mad 64 .
26 Allibhai v. Dada ,
(1931) 33 Bom LR 1296 .
27 Mukundji Maharaj v. Persotam Lalji ,

AIR 1957 All 77 [
LNIND 1955 ALL 93 ] (80, 81) (DB) :
ILR (1956) 1 All 421 ; Shyam Ranjan
Mukherjee v. Nirmal Ranjan Mukherjee , 2007 (6) All LJ 778 (794) (All) :
AIR 2008 (NOC) 568 ).
28 Mukundji Maharaj v. Persotam Lalji

,
AIR 1957 All 77 [
LNIND 1955 ALL 93 ] (80, 81) (DB) : ILR
(196) 1 All 421; Sankar Nath Mullick v. Lakshmi Sona Datta ,
2004 (2) Cal LJ 393 [
LNIND 2004 CAL 373 ] (404) (Cal-DB).
29 Shyam Ranjan Mukherjee v. Nirmal Ranjan

Mukherjee , 2007 (6) All LJ 778 (794) (All) :
AIR 2008 (NOC) 568 .
30 Padmanund Singh v. Rama Proshad Mohi ,

(1912) 17 CWN 662 .
31 Ma Yin Hu v. Ma Chit May , AIR 1929 Rang

226.
Page 23 of 29
32 Babu Lal v. Ganesham Das ,

(1922) 44 All 633 ; Lali Jan v. Muhammad
Shafi Khan ,
(1912) 34 All 478 .
33 Mukund Prasad v. Rajrup Singh , (1907) 4 All

LJ 708.
34 Ramasamy, S. v. Raman ,
2003 (1) Mad LW 468 (473) (Mad).
35 Gorachand Mukherjee v. Malabika Dutta ,

AIR 2002 Cal 26 [
LNIND 2001 CAL 341 ] (32) :
2002 CWN 213 .
36 Thakur Raghunathji Maharaj v. Ramesh

Chandra , AIR 2001
SC 2340 (2341) :
(2001) 5 SCC 18 [
LNIND 2001 SC 1254 ].
37 Thakur Raghunathji Maharaj v. Ramesh

Chandra, AIR 2001
SC 2340 (2341) :
(2001) 5 SCC 18 [
LNIND 2001 SC 1254 ].
38 Goudoin v. Venkatesa Moodally , (1907) 30

Mad 378.
39
(1886) 12 Cal 522 .
40 Cursetji v. Rustomji , (1887) 11 Bom 348.
41 Mantel v. Mantel , (1895) 18 Mad 19 ; Goudoin

v. Venkatesa Moodally , (1907) 30 Mad 378.
42 (1879) 11 Ch. D. 645.
43 Re. Brown, O’Halloran v. King ,(1883) 27 Ch.

D. 411.
44 Murid Hussain v. Jowala Sahai ,

AIR 1929 Lah 648 .
Page 24 of 29
45 Mudara v. Muthu , (1934) M.W.N. 942.
46 Prithmi Chand Chandumal v. Sunder Das Shital

Mal,
AIR 1946 Pesh 12 : 2281 C 141 ; K.
Muniswamy since deceased by L.Rs. v. K. Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (249, 250) :
2000 (6) Kant LJ 487 .
47 Channabassappa v. Shankaraiah ,
1961 Mys LJ 443 ; K. Muniswamy since
deceased by L.Rs. v. K. Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (250) :
2000 (6) Kant LJ 487 .

Venkataswamy,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (250) :
2000 (6) Kant LJ 487 .

Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (250, 251) :
2000 (6) Kant LJ 487 .
50 Gummanna v. Nagaveniamma , AIR 1967

SC 1595 (1598) : 1967 (3) SCR 932.
51 Gummanna v. Nagaveniamma, AIR

1967 SC 1595 (1597, 1598) :
1967 (3) SCR 932 [
LNIND 1967 SC 183 ].
52 Kamalnarayan v. R. Kishorelal ,
AIR 1958 MP 246 [
LNIND 1957 MP 95 ]:
1958 (3) MPLJ 198 .
AIR 1958 MP 246 [
LNIND 1957 MP 95 ]:
1958 (3) MPLJ 198 .
54 (1882) 20 Ch. D. 562.

Page 25 of 29
55 Worthing Corporation v. Heather , (1906) 2 Ch.

532.
56 Loknath Khoud v. Gurnaram Kalitra ,

AIR 1986 Gauh 52 (53); Mohammed Ali
Majumdar v. Brikodar Nath ,
AIR 1960 Ass 178 (DB); (Moulvi Ali v.
Rajkumar Haldar ,
AIR 1943 Cal 417 ; 47 CWN 557 relied
on ).
57 Shyam Singh v. Daryao Singh,

AIR 2012 Utr 100 (104) (Shyam Singh v.
Daryao Singh , AIR
2004 SC 348 , relied on.
58 DCM Limited v. State of Haryana,

(2010-3) Punj LR 629 (633) (P&H).
59 Aulad Ali v. Ali Athar ,

(1927) 49 All 527 ; Basdeo Rai v. Jhagru
Rai ,
(1924) 46 All 333 .
60 A. Ismail Khan v. Lalitha Devi , 2007 (5) Mad LJ

1314 (1323) :
2007 (3) Mad LW 465 (Mad); Atika
Begum v. Haji A.A.M. Abdulla , (2002) 4 Mad LJ 4 (Mad-DB).
61 Jogesh Chandra Roy v. Mokbul Ali Chowdhury,

(1920) 25 CWN 857 .
62 Makhrana v. Bindeshri Prasad ,

AIR 1922 Oudh 1682 .
63 Raghunath Prasad v. Deputy Commissioner,

Pratabgarh ,
(1929) 4 Luck 483 : 56 IA 372; Bhaidas
Shivdas v. Bai Gulab , (1921) 46 Bom 153 : 49 IA 1.
64 Achammal v. Rajamanickam Karthikeyan,

(2010) 2
MLJ 1210 (1216) (Mad).
65 Kuldip Singh v. Khetrani Koer ,

(1898) 25 Cal 869 ; Khunni Lal v. Gobind
Krishna ,
(1911) 33 All 356 : 38 IA 87; Abubekar v.
Maibibi , (1869) 6 Bom HC (ACJ.) 77; Diwali v. Apaji , (1886) 10 Bom 342 ; Basangowda v. Irgowdatti , (1923) 47 Bom
597 ; Hanuman Sahu v. Abbas Bandi ,
AIR 1929 Oudh 193 ; Nageshar v. Mata
Page 26 of 29
Prasad ,
AIR 1922 Oudh 236 ; Kapura v.
Madsodan Das ,
AIR 1943 Lah 168 ; Gurdit Singh v. Babu ,
AIR 1953 Punj 282 (DB) : (1954) Punj
165.
66 Bai Mangu v. Bai Vijli ,

AIR 1967 Guj 81 [
LNIND 1965 GUJ 118 ] (84) : (1967) 6 Guj
LR 915; Govindwaman v. Muralidhar Shriniwas ,
AIR 1953 Bom 412 [
LNIND 1952 BOM 113 ]: 55 Bom LR 670 :
(1967) 6 Guj LR 915.

AIR 1967 Guj 81 [
LNIND 1965 GUJ 118 ] (84);
Govindwaman v. Muralidhar Shriniwas ,
AIR 1953 Bom 412 [
LNIND 1952 BOM 113 ]: 55 Bom LR 670 :
(1967) 6 Guj LR 915.

AIR 1967 Guj 81 [
LNIND 1965 GUJ 118 ] (85);
Govindwaman v. Muralidhar Shriniwas ,
AIR 1953 Bom 412 [
LNIND 1952 BOM 113 ]: 55 Bom LR 670 :
(1967) 6 Guj LR 915.
69
(1914) 18 CWN 9 ; Gurdit Singh v. Babu ,
AIR 1953 Punj 282 (DB) : (1954) Punj
165.
70 Bachumal v. Vessimal , AIR 1926 Sind 143.
71 Pratap Das v. Nand Singh ,

AIR 1924 Lah 729 .
72
(1872) 9 BLR 377 , IA Sup. Vol. 47.
73
(1897) 24 Cal 834 : 24 IA 76.
74 (1862) 9 MIA 123 distinguished.
75 Sarajubala Debi v. Jyotirmayee Debi ,

(1932) 59 Cal 142 : 58 IA 270.
Page 27 of 29
76 Parmodh Singh v. Labh Singh ,

AIR 1955 Punj 49 (50) : 56 Punj LR 361.
77 Balak Ram v. Surat Ram ,

AIR 1958 HP 5 (8); Prithmi Chand v.
Sunder Das ,
AIR 1946 Pesh 12 : 1946 Pesh LJ 12 :
228 IC 141; Parmodh Singh v. Labh Singh ,
AIR 1955 Punj 49 : 56 Punj LR 361.
78 Nand Singh v. Mahant Pratap Das ,

AIR 1924 Lah 674 .
79 Laxamma v. State of Karnataka,

AIR 1983 Kant 237 [
LNIND 1983 KANT 2 ] (243) :
(1983) 1 Kant LJ 417 .
80 Laxamma v. State of Karnataka ,

AIR 1983 Kant 237 [
LNIND 1983 KANT 2 ] (243) :
(1983) 1 Kant LJ 417 .
81 Laxamma v. State of Karnataka ,

AIR 1983 Kant 237 [
LNIND 1983 KANT 2 ] (243) :
(1983) 1 Kant LJ 417 .
82 Laxamma v. State of Karnataka,

AIR 1983 Kant 237 [
LNIND 1983 KANT 2 ] (245):
(1983) 1 Kant LJ 417 .
83 The Secretary of State v. Raja Parthasarathy, (1926) 49 Mad 349.
84 Raghuram Rao v. Eric P. Mathias , AIR

2002 SC 797 (801) :
2002 (1) CHN 537 :
(2002) 2 SCC 624 [
LNIND 2002 SC 86 ]:
2002 (1) CCC 130 ; Sachindra v. Dist.
Magistrate,
AIR 1956 Trip 9 .
85 Sachindra v. Dist. Magistrate ,

AIR 1956 Trip 9 .
86 Subbaraya v. Krishna , (1883) 6 Mad 159 ;

Tamaya v. Timapa , (1883) 7 Bom 262 ; Khetra Nath v. Baharali ,
AIR 1929 Cal 228 ; Mahananda Roy v.
Page 28 of 29
Saratmani Debi, (1911) 14 CLJ 585 ; Goluk Nath Roy v. Mathura Nath Roy ,
(1891) 20 Cal 213 ; Kesar Lal v. Harasit
Ghose, (1910) 12 CLJ 126 ; Sital Prasad v. Dildar Ali Khan ,
(1916) 1 Pat LJ 1 ; Subbaraya v. Krishna ,
(1882) 6 Mad 159 ; Narayan Dasappa v. Ali Saiba , (1894) 18 Bom 603 ; Madar Saheb v. Sawnabawa , (1897) 21 Bom
195 ; Udipi Seshagiri v. Seshamma , (1920) 43 Mad 503 ; Akram Ali v. Durga Prasanna, (1911) 14 CLJ 614 ; Basrat Ali
Khan v. Manirulla ,
(1909) 36 Cal 745 ; Nil Madab v. Narattam
,
(1890) 17 Cal 826 ; Parmeshri v. Vittappa ,
(1902) 26 Mad 157 ; Netropal Singh v. Kalyan Das ,
(1906) 28 All 400 .
87 Williams v. Earle,
(1868) 3 QB 739 .
88 (1863) 14 C.B.N.S. 372 : 143 ER 490.
89
(1875) 10 QB 302 .
90 (1828) 8 B. & C. 308 : 108 ER 1057.
91 Kristo Nath v. Brown ,

(1887) 14 Cal 176 .
92 Parameshri v. Vittappa , (1903) 26 Mad 157 ;

Tamaya v. Timappa , (1888) 7 Bom 262 ; Nil Madhab v. Narattam ,
(1890) 17 Cal 826 .
93 Kumarchandra v. Narendranath ,
(1930) 57 Cal 953 ; Saradakripa v.
Bepinchandra, (1922) 37 CLJ 538 ; Parbhu Narain Singh v. Ramzan ,
(1919) 41 All 417 .
94 Madhusudan v. Midnapore Zemindari Co .,

(1918) 45 Cal 940 .
95 R.J.R.M. P. Singh v. Baqriden,

AIR 1973 All 11 (13); Bhairo Singh v.
Ambika Baksh Singh ,
AIR 1942 Oudh 374 : ILR 17 Luck 805 :
1942 OWN 225 .
96 R.J.R.M. P. Singh v. Baqriden ,

AIR 1973 All 11 (15).
97 Sital Prasad v. Dildar Ali Khan ,

(1916) 1 Pat LJ 1 .
Page 29 of 29
98 Keshav Lal v. Haraut Ghose, (1910) 12 CLJ

126 ; Bhairo Singh v. Lal Amabika Singh ,
AIR 1942 Oudh 374 .
1 (1806) 12 Ves. 504 : 33 ER 191.
2
(1799) 18 LJQB 305 : 115 ER 1505.
3 Padmanund Singh v. Rama Proshad Mohi ,

(1912) 17 CWN 662 ; Bachumal v.
Mulchand , AIR 1926 Sind 143 ; Tamaya v. Timapa , (1883) 7 Bom 262 ; Golaknath v. Mathura Nath ,
(1893) 20 Cal 273 ; Kasturi v. Baliram ,
AIR 1924 Nag 222 ; Mohendra Kumar v.
Gagan Chandra ,
AIR 1925 Cal 471 ; Nilamadhab v.
Narattam ,
(1890) 17 Cal 826 ; Promode Ranjan v.
Aswini Kumar ,
(1914) 18 CWN 1138 ; Vyankatraya v.
Shivrambhat , (1883) 7 Bom 256.
4 In the matter of the West Hopetown Tea Co. Ltd.,

(1890) 12 All 192 ; Subbaraya v. Krishna
Kamti , (1883) 6 Mad 159.
5 Zoroastrian Co-op. Hsg. Socy. Ltd. v. Dist.

Registrar, Co-op Societies (Urban) ,
AIR 1997 Guj 136 (146, 148); Zoroastrian
Co-op. Hsg. Socy. Ltd. v. Dist Registrar Co-op. Societies (Urban), AIR
2005 SC 2306 (2325, 2326) :
(2005) 5 SCC 632 [
LNIND 2005 SC 384 ].
6 Zoroastrian Co-op. Hsg. Socy. Ltd. v. Dist.

Registrar Co-op. Societies (Urban) , AIR 2005
SC 2306 (2326) :
(2005) 5 SCC 632 [
LNIND 2005 SC 384 ].

Registrar Co-op. Societies (Urban) , AIR
2005 SC 2306 (2325, 2326) :
(2005) 5 SCC 632 [
LNIND 2005 SC 384 ].
End of Document
Darashaw Vakil
S. 11.
Where, on a transfer of property, an interest therein is created absolutely in
favour of any person, 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.
8 [Where any such direction has been made in
respect of one piece of immovable 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.]
8 Subs. by Act 20 of 1929, Section 8, for the original paragraph.
End of Document
S. 11(A)
Darashaw Vakil
COMMENTS
Legislative Changes. —The second paragraph of Section 11 has been amended by

Section 8 of the Transfer of Property Act , 20 of 1929. Prior to the amendment the second paragraph was
as follows :— "Nothing in this section shall be deemed to effect the right to restrain, for the beneficial enjoyment of
one piece of immovable property, the enjoyment of another piece of such property, or to compel the enjoyment
thereof in a particular manner." The amendment was necessitated owing to the words "to compel its enjoyment"
which found their way both in paragraph 2 of this section and in the first part of Section 40 indicating that an
affirmative covenant for the beneficial enjoyment of one piece of property of which the other piece has been
transferred, can in all cases be enforced. The amendment was necessitated as the above paragraphs of the two
sections were presumably based on the observations of Lord Cottenham in Tulk v. Moxhay , 9 a case of an
affirmative covenant disapproved in later English decisions such as Haywood v. Brunswick Building Society , 10 an
instance of a negative covenant and it is now settled that except in certain cases affirmative covenants cannot be
specifically enforced. In Austerbury v. Corporation of Oldham , 11 a covenant to spend money on land was held not
binding on the purchaser who had notice thereof. The same principle had been followed in India. 12 These
principles do not apply to leases.
"Clauses 7 and 11, Sections 11 and 40. —Sections 11 and 40 of the Act refer to affirmative and
negative covenants in a transfer. Section 11 refers to rights as between a transferor and a transferee, while Section
40 relates to the rights of third parties against transferees. The words "to compel its enjoyment" used in the second
paragraph of Section 11 and in the first paragraph of Section 40, indicate that affirmative covenants for the
beneficial enjoyment of one piece of the property of which the other piece has been transferred can in all cases be
enforced. This paragraph seems to have been based on the observations of Lord Cottenham in Tulk v. Moxhay , 13
a case decided in 1848. But in later English decisions, such as Haywood v. Brunswick Building Society,
14 the observations in Tulk’s case were not approved and it is now settled that except in certain special cases
affirmative covenants cannot be specifically enforced. Thus, in Austerberry v. Corporation of Oldham , 15 a

covenant to spend money on the land was held as not binding on the purchaser of the land, although he had notice
of the same. Indian Courts have followed the same principle. 16 We propose that the second paragraph of Section
11 and the first paragraph of Section 40 should be so amended as to make it clear that, although an affirmative
covenant is not by itself invalid as between a transferor and transferee (Section 11), negative or restrictive
covenants only can be specifically enforced against a third person (Section 40)." See Notes on Clauses . 17
Where Act does not apply. —The rule laid down in the section is not peculiar to those provinces only in
Page 2 of 13
S. 11(A)
which the statute is in force. 18

Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.19 Section 11
recognises the elementary principle that a transferee of property who takes an absolute interest, as for instance a
donee or purchaser cannot be restrained in his enjoyment or disposition of it by any condition inserted in the
transfer. 20 Any condition which restrains the transferee or any person claiming under him from alienating or parting
with or disposing of his right in the property is void as per Section 10. 21 A term in the sale deed directing enjoyment
of the property in a particular manner is repugnant to Section 11 and is to be ignored. 22
If by a deed of transfer absolute right, title and interest are created in favour of a person, after creation of such
interest, the transferee cannot be restrained from selling or transferring the property nor can such transferee be
directed to use the property only for a particular purpose desired by the transferor. If such a restriction is created,
the same should be treated to be void. 23
By virtue of Section 11, the transferors should not be allowed to put a clog or restriction on the right of a vendee so
as to be repugnant to the property sold. The main provision in a transfer is to be given effect and the repugnant one
discarded. 24
Where a Muslim Wakf was created from the date of the execution of the deed, the executor ceased to own the
properties, but was given power to enjoy the property, the successive Mutwallis would have no power of
transfer/alienation of the wakf property, the restraint on the power of alienation was not repugnant or bad. 25
When a property is transferred absolutely, it must be transferred with all its legal incidents, the vendor is not
competent to sever from the right of the property incidents which the law inseparably annexes to it, and thereby to
abrogate the law by private arrangement, creating a life estate in favour of the vendee in a deed of Conveyance. 26
For application of Section 11,it is necessary that the transfer of interest must be complete. For a transferee to deal
with interest in the property transferred "as if there were no such direction" regarding the particular manner of
enjoyment of the property, the instrument of transfer should evidence that an absolute interest in favour of the
transferee has been created. This is clearly discernible from
Section 11 of the T.P. Act .27 Where transfer is not absolute, Section 11 has got no application. 28
It any condition or limitation is imposed in the deed of conveyance that is repugnant to Section 11. 29 Restrictions
imposed in the habendum in the deed of conveyance were invalid and repugnant under Section 11. 30 Where a gift
deed in the last contained clause that the donee would render services to the donor and would also meet out the
donor’s funeral expenses also, the latter directions were mere donor’s pious wishes and on failure to comply would
not entitle the donor to revoke the gift. 31 Where the donor reserves for himself the profits of the subject matter of
Page 3 of 13
S. 11(A)
the gift for his lifetime, the gift would not be invalid. 32
Where the donor gifts the entire building to her daughter for life and thereafter to the sons of her daughter, and by
the same deed confers a conditional right on her son to enjoy a portion of the building, Section 11 held no
application in the case. The gift deed was held valid. 33
The principle embodied in Section 11 is that there can be no restriction on the enjoyment of property which has
been transferred absolutely. 34 The vendee is entitled to ignore a condition which cuts down his enjoyment of the
absolute right of property. 35 Where property has passed absolutely to the vendees any restriction in the sale deed
which is contrary to the enjoyment of such absolute estate is void and unenforceable. 36 In the instant case, the suit
was filed by plaintiff/respondent for injunction restraining the defendant from amending its Rules and Regulations
and to direct it to accept 5 nominees of the plaintiff on the council of management of the defendant. The basis on
which the suit as filed was, plaintiff was the owner of property, that it had constructed buildings for running a school
and boarding house; that on 15.5.1943 it had transferred the said property to the defendant with a condition that
defendant shall run the school by electing 5 of the representatives of the plaintiff annually to its council of
management but during years 1980-81 and 1981-82 the defendant refused to accept 5 nominees of the plaintiff.
Held, that the suit was not maintainable and the condition imposed to take 5 nominees of plaintiff on the council of
management of defendant is void under
If the covenant bound the land at the inception, it goes with the land for the benefit of the assignee of convenantee
and a specific assignment of the covenant in favour of the assignee (of the convenantee) is not necessary. 38
Section 11 of T.P. Act embodies principles of universal application that when the main object of
transferor is to make an absolute transfer, an inconsistent provision therein cannot be given effect to. The very
object of Section 11 is to provide that the transferor shall not be allowed to put a clog or restriction on the right of a
vendee so as to be repugnant to the property sold.39
Where a person owning a property conveys such property to another person and at the same time reserves for
himself a subordinate or tenancy right under the transfer, the reservation should not be regarded as a restriction
repugnant to the interest transferred by the document. Such a transfer should be regarded not as a transfer of the
entire interest of the owner, but only of a portion—actual possession of the property remaining with the transferor on
his undertaking to pay rent to the transferee. The right which is transferred, namely, the right to receive rent not
being fettered by any condition or limitation, there is no infringement of the provision of
Section 11,Transfer of Property Act . There is nothing in that section or in any other law, which would
invalidate such reservation in favour of the transferor.40
A vendor who wants to covert a sale into a perpetual lease cannot be permitted to so under the beneficial
provisions in favour of the transferee contained in
Section 11 T.P. Act .41
Page 4 of 13
S. 11(A)
The provision of Section 11 of the Actis in no way inconsistent or repugnant to the relevant provisions of the
T.P. Act , providing for the determination of a monthly tenancy, but for the Rent Control Legislation a
landlord could terminate a tenancy by giving a requisite notice to the tenant. Under the Rent Control Legislation, a
further protection is given to the tenant providing conditions for determining a tenancy. The conditions of both have
to be satisfied. The statutory tenancy does not wipe off the privileges accruing to a tenant under his contractual
tenancy, but it gives an added protection to the tenant. Both the requirements, therefore, have to be fulfilled by a
landlord before he can eject a tenant.42
Section 11 rests on a principle that any condition which is repugnant to the interest created is void and when
property is transferred absolutely it must be done with all its legal incidents. 43 Where the land was allotted by
Industrial Corporation and the deed of conveyance provided that if the construction of the building for the proposed
building was not completed by the allottee a particular date the plot shall be resumed by the Corporation, and the
interest of the allottee in the land shall cease, the agreement was held valid and binding on the parties. 44
The rule in the section applies to absolute and not to limited transfers though it has been observed by the Allahabad
High Court that the principle of Section 11 applies as much to mortgages or leases as to gifts or sales. 45 It is an
extension of Section 10. According to Section 10, on an absolute transfer no restriction can be imposed. This
section further provides that the terms of the transfer shall not even direct that the interest of the transferee shall be
applied or enjoyed by him in a particular manner. Hence, not only is an absolute restraint void under Section 10 but
on a transfer made absolutely you cannot direct the application or enjoyment of that interest in a particular manner.
The section recognizes the elementary principle that a transferee of property who takes an absolute interest as, for
instance, a donee or a purchaser cannot be restrained in his enjoyment or disposition of it by any condition inserted
in the transfer. Such a condition deprives the property of its legal incidents and is inconsistent or repugnant to the
main purpose of the transfer. It is consequently arbitrary and not enforceable in a Court of Law. 46 The effect of the
section is that when a man relinquishes his entire interest in the property reserving no right over it for himself or any
other person, he cannot at the same time impose upon his transferee any condition restraining his enjoyment or
disposition of the property. Such a condition is repugnant to law and will be disregarded; but where for the beneficial
enjoyment of one piece of immovable property the vendor stipulates that the vendee should enjoy another piece of
property in a particular manner, the case stands on a different footing. 47
By an agreement not to divide, a Hindu family could not tie up their family estate so as to deprive a purchaser of
one of the shares of a right to enforce partition, as the law gives to a member of a Hindu joint family a right to
demand partition from his comembers. 48 But the members can bind themselves for their own lifetime and a similar
agreement can be entered into by the remaining members of the family after one has demanded a partition and
separated his share. 49 As regards gifts, the rule in Mahomedan Law is that where a gift is made subject to a
condition restricting alienation the condition is void and the gift takes effect as if no condition were attached to it. 50
The incidents of a gift as between two Mahomedans are governed by the Mahomedan Law and not the
Transfer of Property Act, 1882 . A provision purporting to take away the donee’s power of transfer being
under the Mahomedan Law invalid, the donee will despite thereof take an absolute estate.51 According to Hindu
Law a restriction against alienation in a gift of land to Brahmins is inoperative as being a condition repugnant to the
nature of the grant. 52 Similarly, the Bombay High Court held that a condition necessitating residence was only
recommendatory and not enforceable at law. There was a gift imposing on the donee and his descendants in
perpetuity the obligation not to lease the village without forfeiting the gift. 53 A condition imposed in the gift-deed
that the donee would not transfer or alienate property in any manner during the life time of the niece of the donor as
she had been given right to possess the property during her life time was held invalid in view of the provisions of
Sections 10 and 11. 54 And the Privy Council in a Calcutta case held void a restriction upon an absolute estate
which attempted to alter the legal course of succession. 55
Page 5 of 13
S. 11(A)
Sections 10 and 11 distinguished.—
Section 10 of the Transfer of Property Act deals with a restriction against the transfer of interest
conveyed absolutely.
Section 11 of the T.P. Act deals with the restrictions on the enjoyment of such interest conveyed
absolutely. While Section 10 refers to a restriction on the transfer of property, Section 11 refers to a restriction on
the enjoyment of the property. The principle behind Section 11 is that a condition repugnant to the interest created
absolutely, is void.56
Affirmative and negative covenants. — Section 11 applies to affirmative covenants between

transferor and transferee while Section 40 to negative or restrictive covenants enforceable against third parties.
Section 11 refers to positive covenants and Section 40, negative covenants. Even between the transferor and
transferee a condition that the property would be enjoyed by the transferee in a particular manner would be void.
But such a restriction will be saved if it is for the beneficial enjoyment of the property retained by the transferor, by
the second part of Section 11. 57
Indian Succession Act . —Section 138 of this Act is similar to Section 11. It enacts that where an
absolute bequest of a fund is followed by a direction that it shall be applied or enjoyed in a particular manner the
legatee shall be entitled to receive the fund as if the will contained no such direction. The word "fund" includes
legacies, both moveable and immovable.
Sale-deed with a re-conveyance clause. —Where agreement provided that and if the vendor offers
the sum of Rs. 1200/- within a period of five years to him, the vendee would transfer the land back to him, it was
held that it was not hit by Section 10 or Section 11. It permitted the transferee to part with or dispose of his interest
to any person but not within the period of five years; the transferee was not absolutely restrained from transferring
the land to any one. 58
Will. —Will is not a transfer and as such Section 11 would not hit the provisions of the Will. 59 Where by
a will only right to stay in the premises was given to the donee, and ban was imposed on the transfer of the
property, it was held that the ban on transfer/alienation was not void in view of the provisions of
Section 11,Transfer of Property Act , as Section 11 does not apply to Will.60
Once an absolute right had been vested in the legatee, in respect of the properties bequeathed to him by way of a
Will, no further condition could have been imposed, as per
sections 10 and
11 of the
T.P. Act , 1882, restraining the alienation of the property or by creating a restriction repugnant to the
Page 6 of 13
S. 11(A)
interest created in such a property.61
Partition. —A right of partition being an incident of joint ownership of property, any restriction repugnant
to such right or interest is invalid as per provisions of Section 11. 62 A restriction imposed in the deed on partition of
the property amongst the cosharers by metes and bound is not valid in law. 63
Settlement deed. —In a case where the donor grants an absolute estate to the donee and in a
subsequent clause in the deed provides that on the happening of a contingency the absolute estate would be
curtailed to a life estate after the death of the donee by exclusion of all the heirs at law of the donee from
inheritance, such a clause is a defeasance clause as it defeats or extinguishes the absolute estate and not a
repugnant clause. 64
Where through deed of settlement the settlor had transferred the properties to his wife for her life and thereafter to
his son absolutely with right to transfer by way of sale or gift and enjoy the properties in any manner he liked being
succeeded by his heirs from generation to generation the settlement deed contained a further clause that if both the
wife and the son of the settlor died during the settlor’s lifetime, the properties would revert to the settlor as an
absolute estate, then the said clause would be a defeasance clause and not a clause repugnant to the grant of
absolute estate to the settlor’s son, because the effect of that clause was to reduce or curtail the absolute estate
granted to the son of the settlor to a life estate on the happening of the contingency. As such, on the death of the
settlees during the lifetime of the settlor, the property reverted to the settlor and he having become the absolute
owner thereof was competent to transfer it. 65
Second paragraph of Section 11 —Any restriction on the enjoyment of the transferee of the property
transferred absolutely is void in view of the provisions of first part of S.11. But second part of the section which
provides an exception to this general rule permits creation of such restriction on the enjoyment of the property
transferred, if it is for the beneficial enjoyment of another adjoining property of the transferor. The existence of
decree against the transferor judgment-debtor was held binding on the transferee. 66 The ‘immovable property’
contemplated by the second paragraph of Section 11 can hardly be said to be an incorporeal right. 67
In the instant case, the plaintiff sold a suit shop to the defendant. The condition incorporated in the sale deed was
that the purchaser shall not be entitled to construct any basement or any pakka construction. Held, the direction
contained in the sale deed was made for the purpose of securing the beneficial enjoyment of another property
belonging to the plaintiff. The condition imposed in the sale deed was contrary to the mandate of law contained in
Section 11. 68
A condition in the deed of gift whereby properties are transferred to the son by his deceased father to provide
maintenance to the donor and/or his dependants is not in any way repugnant to the interest created by the
instrument and the condition is valid and enforceable and not hit by the provisions of Section 11. The son was held
bound to maintain his step mother, under the express terms of the gift deed. 69
Restrictions on the enjoyment of transfer of property, who can impose. — Second paragraph of
Page 7 of 13
S. 11(A)
Section 11 of Transfer of Property Act is rather an exception to the first paragraph. It was incorporated in
recognition of the rule laid down in Tulk v. Moxhay , 70 that the transferor may impose conditions restricting
enjoyment of the land transferred if such restrictions are for the benefit of his adjoining land. The second paragraph
relates to the enforcement of the restrictions by the transferor against the transferee. The words used are "nothing
in the 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 the breach thereof and is for "securing beneficial enjoyment of another
piece of such property" which belonged to the transferor at the time of the transfer on the basis of which the right is
claimed. The only person entitled to impose and enforce such a condition is the transferor and that too only for the
beneficial enjoyment of the portion retained by him at the time of transfer. It cannot be enforced by the transferee of
another portion. A contract only binds the parties or their privies. The transferor cannot impose such a condition for
the benefit of another person. The restrictive covenant could be enforced only by the transferor or a subsequent
assignee from the transferor or the property for the benefit of which the covenant was made. 71
Under the second part of the section only the transferor has been given right to impose/enforce any direction
regarding the enjoyment of the property which has been transferred; he alone would have a remedy in respect of a
breach thereof. 72 It is not permissible for the transferor to impose condition for the benefit of another property
which he is transferring or is intending to transfer to any person on the same day. 73
The second part of Section 11 provides for an exception to general rule namely that it is permissible to the
transferor to impost any condition regarding the enjoyment of the property which has been transferred. In other
words if one part of the property has been sold and the other part has been retained by the transferor, the latter can
impose a condition restricting the enjoyment of the property sold, if such restriction is for the beneficial enjoyment of
the property, which has been retained by the transferor. 74
In the instant case, the condition not to construct any portion of the building within a space of 12 fingers from the
common wall on either side was stipulated in the covenant of transfer for the protection of the existing common wall
which was necessary for enjoyment of the respective portions of the building. That covenant being negative in
character, bound the land at the very inception and runs with the land for the beneficial enjoyment of which it was
imposed. Hence, a specific assignment of the benefit of the covenant in favour of the assignee of the covenantee
was not required. The assignee of the covenantee was entitled to enforce the covenant against the respondent. 75
Second Paragraph of Section 11 and Section 40. —The second part of Section 11 provides for an
exception to general rule namely that it is permissible to the transferor to impost any condition regarding the
enjoyment of the property which has been transferred. If one part of the property has been sold and the other part
has been retained by the transferor, the latter can impost a condition restricting the enjoyment of the property sold,
if such restriction is for the beneficial enjoyment of the property, which has been retained by the transferor. 76 In
second part of Section 11 an exception has been made by law only to protect the right of the transferor, the
transferee no doubt has right to transfer the benefit to another person. 77
Section 40 had no application to the instant case because this section only deals the rights of the transferee of
some land which has burdened with restricted covenants. 78
Under Part Second of Section 11, transferor cannot transfer such benefits to other transferee, although the
Page 8 of 13
S. 11(A)
conditions imposed are intended for beneficial enjoyment of the portion transferred to such other transferees. 79
9 (1848) 18 LJ Ch. 83 : 47 ER 1345.
10 9 QBD 403.
11 (1885) 29 Ch. D. 750; Smith v. Colbourne , (1914) 2 Ch. 533.
12 Chaturbhuj v. Mansukhram , (1925) 27 B.L.R. 73.
13 2 Ph. 774.
14 8 QBD 403.
15
(1885) 29 Ch D 750 .
16 27 Bom LR 73.
17 Vide FIRST REPORT ON THE TRANSFER OF PROPERTY (AMENDMENT) BILL,

1929.

AIR 1929 Lah 648 .
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358); K. Muniswamy v. K. Venkataswamy ,
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248):
(2000) 6 Kar LJ 487 [
20 Chamaru Sahu v. Sona Koer,

(1911) 14 Cal LJ 303 : 16 CWN 99 : 11 IC 301; Gorachand Mukherjee v. Malabika
Dutta ,
AIR 2002 Cal 26 [
LNIND 2001 CAL 341 ] (32) :
2002 (1) CHN 537 :
2002 CWN 213 .
Page 9 of 13
S. 11(A)
21 Alika Begum v. Haji AAM Abdulla ,

2002 (2) CCC 119 (125) (Mad-DB); Subal Chandra Matty v. Usha Banerjee,
AIR 2009 Cal 210 [
LNIND 2009 CAL 339 ] (212, 213) (DB).
22 State of Rajasthan v. Jeo Raj , AIR

1990 Raj 90 (94):
(1989) 2 WLN 550 .
23 Subal Chandra Matty v. Usha Banerjee,

AIR 2009 Cal 210 [
LNIND 2009 CAL 339 ] (213) (DB).
24 Sarla Mehra v. Praleen Chopra, 2010 (3) AD (Del) 313.
25 Kani Ammal v. T.N. Wakf Board ,

AIR 1983 Mad 189 (194) (DB).
26 Manjusha Debi v. Sunil Chandra ,

AIR 1972 Cal 310 [
LNIND 1972 CAL 77 ] (312).
27 Indu Kakkar v. Haryana State I.D.C., AIR

1999 SC 296 (299) :
(1999) 2 SCC 37 [
LNIND 1998 SC 1066 ].
28 Manjusha Debi v. Sunil Chandra,

AIR 1972 Cal 310 [
LNIND 1972 CAL 77 ] (313):
(1972) 1 Cal LJ 346 .
29 Manjusha Debi v. Sunil Chandra,

AIR 1972 Cal 310 [
LNIND 1972 CAL 77 ] (313):
(1972) 1 Cal LJ 346 ..
30 Manjusha Debi v. Sunil Chandra ,

AIR 1972 Cal 310 [
LNIND 1972 CAL 77 ] (313):
(1972) 1 Cal LJ 346 ..
31 Ganapathi Subramania Ayyer v. Kaluthu Ayyar Sankare Ayyear , AIR 1955 NUC (Trav-
Co.) 1046 (DB)
32 Kathiru Kunju Seyuembakunju v. Muhammad Kunju Abdurahman , AIR 1955 NUC (Trav-
Co.) 1249 (DB) :
ILR 1954 TC 355 .
Page 10 of 13
S. 11(A)
33 Subal Chandra Matty v. Usha Banerjee,

AIR 2009 Cal 210 [
LNIND 2009 CAL 339 ] (212, 213) (DB).
34 Lilawati v. Firm R.D.S.B., AIR 1971 P&H 87 (87).
35 Lilawati v. Firm R.D.S.B., AIR 1971 P&H 87 (87).
36 Lilawati v. Firm R.D.S.B., AIR 1971 P&H 87 (87); Shiv Nath Kunwar v. Lachhmi Narain,
AIR 1938 Oudh 17 : ILR Luck 662 :
1937 OWN 1138 .
37 The Women’s National Education Society v. The Mangalore Theospohical Society ,

ILR (2004) Kant 4513 (4517) (Kant).
38 Princy v. Jose,
AIR 2010 Ker 1 [
LNIND 2009 KER 225 ]:
2009 (2) KLT 426 [
LNIND 2009 KER 225 ] :
ILR 2009 (2) Ker 533 : 2009 (2) KLJ 335 : AIR
2010 Ker (1) 5 .
39 Bhavani Amma Kanakadevi v. C.S.I. Dekshina Kerala Maha Idavaka ,

AIR 2008 Ker 38 [
LNIND 2007 KER 622 ] (40, 41).
40 Bejoy Krishna v. Iswar Damodar ,

AIR 1954 Cal 400 [
LNIND 1954 CAL 10 ] (402) (DB) : 57 CWN 67.
41 Lilawati v. Firm R.D.S.B ., AIR 1971 P&H 87 (88).
42 Parshotam Lal v. Kalyan Singh , AIR 1971 J&K 20 (24).
43 Indu Kakkar v. Haryana State I.D.C., AIR

1999 SC 296 (299) :
(1999) 2 SCC 37 [
LNIND 1998 SC 1066 ].
44 Indu Kakkar v. Haryana State I.D.C ., AIR

1999 SC 296 (299) :
(1999) 2 SCC 37 [
LNIND 1998 SC 1066 ].
45 Mahram Das v. Ajudhia ,

(1886) 8 All 452 (459).
Page 11 of 13
S. 11(A)
46 Chamaru Sahu v. Sona Koer, (1911) 14 CLJ 303 ; Mahram Das v. Ajudhia ,
(1886) 8 All 452 .
47 Dhannu Lal v. Bansidhar ,

AIR 1929 Pat 349 .
48 Ramlinga v. Virupakshi, (1883) 7 Bom 538 ; Anand Chandra Ghose v. Prankisto Dutt ,
(1886) 3 Beng LR 14 O.C.J.; Mokoonda Rajendur Dutt v. Sham Chunder Mitter ,
(1881) 6 Cal 106 .
49 Rup Singh v. Bhabhuti Singh ,

(1920) 42 All 30 .

AIR 1929 Lah 648 ; Lali Jan v. Muhammad Shafi Khan ,
(1912) 34 All 478 ; Muhammad Abdul Majid v. Fatima Bibi ,
(1886) 8 All 39 : 12 IA 159.
51 Babu Lal v. Ghansham Das ,

(1922) 44 All 633 ; Abdul Karim Khan v. Abdul Qayum Khan ,
(1906) 28 All 342 ; Nizam-ud-din v. Abdul Ghafar , (1888) 13 Bom 264.
52 Anantha Tirtha v. Nagamutha , (1882) 4 Mad 200.
53 Rukminibai v. Laxmibai , (1920) 44 Bom 304.
54 Gorachand Mukherjee v. Malabika Dutta,

AIR 2002 Cal 26 [
LNIND 2001 CAL 341 ] (32) :
2002 (1) CHN 537 :
2002 CWN 213 .
55 Surajubala Debi v. Jyotirmoyee Debi ,

(1932) 59 Cal 142 : 58 IA 270.

2002 (2) CCC 119 (125) (Mad-DB); Bhavani Amma Kanakadevi v. C.S.I. Dekshina
AIR 2008 Ker 38 [
LNIND 2007 KER 622 ] (40, 41):
(2008) 1 KLJ 28 :
(2008) 2 KLT 340 .
57 Princy v. Jose,
AIR 2010 Ker 1 [
LNIND 2009 KER 225 ] (4) :
2009 (2) KLT 426 [
LNIND 2009 KER 225 ] :
ILR 2009 (2) Ker 533 : 2009 (2) KLJ 335.
Page 12 of 13
S. 11(A)
58 Loknath Khoud v. Gurnaram Kalita ,

AIR 1986 Gau 52 (53).
59 Ram Kali v. Sumitra ,

AIR 1983 All 429 (433); Surendra Vikram Singh v. Munia Kunwar ,
AIR 1944 Oudh 65 : ILR 19 Luck 320 : 1612 Oudh 247.
60 Ram Kali v. Sumitra ,

AIR 1983 All 429 (433).
61 Achammal v. Rajamanickam Karthikeyan, (2010) 2

MLJ 1210 (1216) (Mad) :
AIR 2010 Mad 34 [
LNIND 2009 MAD 3158 ].

2002 (2) CCC 119 (125) (Mad-DB).

2002 (2) CCC 119 (125, 126) (Mad-DB).
64 Kali Sadhan v. K.K. Banerji ,

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159) :
(1982) 1 CHN 73 [
LNIND 1981 CAL 342 ] : 86 CWN 583.

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159, 160) :
(1982) 1 CHN 73 [
LNIND 1981 CAL 342 ] : 86 CWN 583.
66 Ramchandra Despande v. Laxmana Rao Kulkarni,

AIR 2000 Kant 298 [
LNIND 2000 KANT 284 ] (308) (DB) :
2000 (5) Kant LJ 477 [
LNIND 2000 KANT 284 ]; Princy v. Jose,
AIR 2010 Ker 1 [
LNIND 2009 KER 225 ] (4).
67 N.C.M. Industries v. I.T. Commr.,

AIR 1956 Cal 480 [
LNIND 1955 CAL 206 ] (484) (DB) : 29 ITR 629.
68 Umashankar Agrawal v. Daulatram Sahu, AIR 2011 Chh 72 (73).

Page 13 of 13
S. 11(A)
69 Panna Lal v. Fulmoni,

AIR 1987 Cal 368 [
LNIND 1986 CAL 191 ] (369, 370).
70
(1848) 41 ER 1143 (Reprint) : 2 Phill 774.
71 Leela v. Ambujakshy,
AIR 1989 Ker 308 [
LNIND 1989 KER 169 ] (310):
ILR 1989(2) Ker 690 Bhagwat Prasad v. Damodar Das,
AIR 1976 All 411 .
72 Bhagwat Prasad v. Damodar Das ,

AIR 1976 All 411 (413).

AIR 1976 All 411 (413).

AIR 1976 All 411 (412, 413).
75 Princy v. Jose,
AIR 2010 Ker 1 [
LNIND 2009 KER 225 ] (5).

AIR 1976 All 411 (412, 413).

AIR 1976 All 411 (412, 413).
78 Bhagwat Prasad v. Damodar Das,

AIR 1976 All 411 (413).

AIR 1976 All 411 (413).
End of Document
S.11(AA)
Darashaw Vakil
Condition making interest determinable on insolvency or attempted alienation.
End of Document
Darashaw Vakil
S. 12.
Where property is transferred subject to a condition or limitation, making
any interest therein, reserved or given to or for the benefit of any person, to
cease on his becoming insolvent or endeavoring to transfer or dispose of
the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor
or those claiming under him.
COMMENTS

Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.
Entire transfers are not vitiated simply because there may happen to be some clauses in the deed which are repugnant to
the free transfer and circulation of property; such restrictive clauses are to be treated as void.1 By implication the words of
Section 12 of T.P. Act apply to conditions in transfer deeds which provide for forfeiture in
the event of property being sold in execution.2
Section 12, T.P. Act , refers to the transferee "becoming insolvent", not "being adjudicate
an insolvent". The section cannot be restricted to conditions which would take effect only on adjudication.3
True meaning of
Section 12, T.P. Act , is that any condition on transfer whereby the interest transferred
would cease on the happening of an even on which the transferee is liable to be adjudicated insolvent is void.4
In a kharposh grant, a condition which imposed restrain on involuntary alienation was held void offending Section 12. 5
Section 12 applies not only to leases, cover such covenants or conditions in all transfer deeds whether leases or not. 6
Where the deed provided that if the property be sold in auction for the debts of the defendant, the grant will be forfeited and
the property will revert to the possession of the grantor was held covered by Section 12 and was held invalid. 7
Condition or limitation. — Section 12 is an exception to Section 10. Under Section 10 a

partial restraint is not forbidden, but Section 12 enacts that restraints of the nature enumerated in this section, though
partial, will not be permitted and that a condition of a transfer that the interest thereby created shall determine on bankruptcy
of, or attempted alienation by, the transferee is void. The rule in Section 12 forbids conditions as to determination of an
Page 2 of 5
estate on a transfer of property on bankruptcy or attempted alienation. The law is different as to wills, 8 for although a
condition in a transfer inter vivos which determines it on bankruptcy or attempted alienation is void, it is not so under a will,
provided there is a gift over in the absence of which the legatee or devisee takes an absolute estate so that such a clause in
a will will have a similar effect as in a deed. The distinction pointed out by the Calcutta High Court 9 is not complete and falls
short of the distinction as shown above.
The expression ‘usufructuary mortgage’ as understood in the context of

Transfer of Property Act does not apply to the said expression as used in Section 12 of
the Bihar Money Lenders Act (22 of 1975).. Where the recital in the mortgage deed did not fall strictly within the definition of
‘usufructuary mortgage’ as used in Section 58 (d),of The
Transfer of Property Act , the benefit of the provision of Section 12 of the Bihar Money
Lenders Act (22 of 1975). could not be denied to the mortgagor.10
Insolvency. —A condition in a deed of settlement that the interest of the beneficiary shall
cease on his insolvency is void as it affects his creditors. In English Law a distinction is made, for the interest of the settlor
himself cannot be qualified by a condition determining his interest on his own bankruptcy to the disappointment of his
creditors, although on a transfer to a third party he may qualify the interest of the transferee with a similar condition. 11 In
settlements in English forms where a protected life-interest is given such a clause is permissible. But in India such a clause
is void under this section. Further, under Section 53 of this Act every transfer made with intent to defeat or delay creditors of
the transferor shall be voidable at the option of any creditor so defeated or delayed and under Section 9 (b) of the
Presidency Towns Insolvency Act, III of 1929, it is an act of insolvency to make a transfer of property or any part thereof
with intent to defeat or delay creditors.
Petition to be adjudicated insolvent. —Such a petition is in effect a voluntary transfer of

interest in property to the Official Assignee and amounts to an alienation. 12
Effect of withdrawal of petition in insolvency. —A deed of settlement provided that in

case any beneficiary should become insolvent, "or do or suffer anything whereby his share or any part thereof would
through his act or default or by operation of law" become vested in or payable to other persons, then the share or interest of
such person should cease and the income should be paid for the remainder of his life for the maintenance and support of
the family of such person. In July 1894 plaintiff, a son of the settlor, filed his petition in insolvency and withdrew it on 8th
December 1894. Held that the forfeiture clause did not take effect and the plaintiff was entitled to be paid by the trustees his
share of the income of the trust property. 13 Here the settlement was prior to the passing of the
Transfer of Property Act and the Court regarded that the insolvency was not as
contemplated by the settlor, for the withdrawal was within less than five months of the filing of the petition without the fund
being in any way claimed or interrupted by the Official Assignee.
Endeavouring to transfer or dispose of. —According to this section a provision against

an attempted alienation is void. A cessor clause of this nature is to be found in settlements created by deed or Will. We are
here concerned with settlements created by deed. The clause against which the section aims is a clause which in English
Law gives a protected life-interest to an improvident child. The usual form of the clause is "Upon trust to pay the said income
to my son (name) during his life unless and until either during my lifetime or after my death he shall have committed or
suffered any act, default or process of law whereby such income or any part thereof if belonging absolutely to him would
become vested in or payable to any other person or persons (and from and after the determination or failure of this trust in
the lifetime of my said son)". 14 In India, an assignment of his life-interest by any person by act inter vivos or in execution is
not void and the assignee, whether a creditor or purchaser, is entitled to the income thereof for the rest of the life of the
tenant for life.
Membership of a voluntary association. —Membership in a voluntary association

involves no transfer of property and the section does not apply. It was so held where a member of the Bombay Native Share
and Stock-Brokers’ Association who having been declared defaulter was adjudged insolvent under the Presidency Towns
Insolvency Act, 1909. His card was claimed by the Official Assignee which claim was resisted on the ground that he had no
interest which could pass to the Assignee as according to the rules a defaulter was expelled from the Association and
whether the expulsion was before or after the commencement of the insolvency. 15
Provident fund. —The rule of the provident fund of a company provided that a member’s
claim to a fund arose only upon his discharge from service but that if during the service he attempted to transfer his interest
his claim to the fund would be forfeited to the company. A member was adjudged insolvent on his own petition and
subsequently discharged from the service. It was held that the above rule which determined the member’s interest on an
attempted alienation was void under the section and that his claim to the fund vested in the Official Assignee on the
termination of his service. 16
Wakf under Mahomedan law. —Where a Wakf has

Page 3 of 5
been created for the benefit of the wakf , members of his family and his descendents, the wakf offends the rule against
perpetuity and is hit by the provisions of Section 12 of the Act. 17
Lease Exemption. —An exception of leases in Section 12 is based on a very definite

principle. The definition of lease in
Section 105, T.P. Act , beings with the words "a lease of immovable property is a transfer
of a right to enjoy such property". It is thus not a transfer of the property itself which remains the property of the lessor.
Clearly the Legislature has recognised as a fundamental principle that the owner of immovable property should be able to
transfer by way of leases a right to enjoy such property without necessarily rendering himself liable to accept as a tenant
some person who may on various grounds be obnoxious to him. The Legislature has clearly recognised this principle as of
such importance as to override the general principle embodied in
Section 10, T.P. Act , that the owner of an interest in property should not be absolutely
restrained from disposing of his interest.18 Leases have been exempted from the general principles embodied in
Section 12, T.P. Act .19 The rule in the section excludes leases from its operation so far as
it contains a condition for the benefit of the lessor or those claiming under him. A covenant in a lease to pay to the landlord
one-fourth of the purchase money on a transfer is valid. 20
By the
Amending Act , 20 of 1929, in Section 111 (g) a new clause has been added whereby a
lease of immovable property is made to determine by forfeiture if a lessee is adjudged insolvent and the lease provides that
on the happening of such event the lessor may re-enter. Both prohibitions referred to in this section are not only permissible
in a lease but are usually inserted in a lease. A lessor may therefore provide that the lease shall be forfeited on the
bankruptcy of the lessee or on an assignment, the latter condition is usually qualified by a clause that the assignment shall
not be without the consent of the lessor, such consent not to be unreasonably withheld.
Evasion of the section. —The rule in the section can be evaded. For instance where a
settlor by deed has settled the income of, say, a sum of Rs. 10,000 on a child, he may make a gift to that child by will of a
similar sum or larger sum and provide that in the event of the child assigning his or her right under the deed of settlement
the gift under the will shall become void and go over to a person named. In that case the child is put to an election and if he
elects under the will he imposes a self-restraint which does not trench upon the rule in the section.
Transfer for benefit of unborn person
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (357).
2 Shiba Prosad v. Lekhraj & Co.,

AIR 1945 Pat 162 (177) (DB) : ILR 23
Pat 871.

AIR 1945 Pat 162 (177) (DB) : ILR 23
Pat 871.

AIR 1945 Pat 162 (177) (DB) : ILR 23
Pat 871.

AIR 1945 Pat 162 (167, 168) (DB) :
ILR 23 Pat 871.
Page 4 of 5

AIR 1945 Pat 162 (178) (DB) : ILR 23
Pat 871.

AIR 1945 Pat 162 (179) (DB) : ILR 23
Pat 871.
8 See Section 120, illus. (vii).
9 In re. Ernest Clarence O’Brien ,

(1933) 60 Cal 926 (931).
10 Surendra Prasad v. Member, Board of

Revenue ,
AIR 1995 Pat 69 (72).
11 Whitmore v. Mason , (1861) 2 Jo. & H. 209 :

70 ER 1031, Encyclopaedia of Forms, 2nd Ed., Vol. 16, p. 87.
12 In re Ernest Clarence O’Brien ,

(1933) 60 Cal 926 .
13 Hormasji Nowroji Davar v. Dadabhoy

Nowroji Davar , (1896) 20 Bom 310.
14 Encyclopaedia of Forms, 2nd Ed., Vol. 18, p. 543.
15 Official Assignee v. Shroff , (1932) 56 Bom

374 : 59 IA 318.
16 In re Ernest Clarence O’Brien ,

(1933) 60 Cal 926 .
17 Mohd. Ismail v. Sabir Ali , AIR 1962

SC 1722 (1729) :
(1963) 1 SCR 20 [
LNIND 1962 SC 126 ].

AIR 1945 Pat 162 (177) (DB) : ILR 23
Pat 871.

AIR 1945 Pat 162 (177) (DB) : ILR 23
Pat 871.
Page 5 of 5
20 Saradakripa Lala v. Bepin Chandra Pal,

AIR 1923 Cal 679 ; Abhiram v.
Shyama Charan, (1909)
End of Document
Darashaw Vakil
S. 13.
Where, on a transfer of property, an interest therein is created for the benefit
of a person not in existence at the date of the transfer, subject to a prior
interest created by the same transfer, the interest created for the benefit of
such person shall not take effect, unless it extends to the whole of the
remaining interest of the transferor in the property.
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.
End of Document
S. 13. (A)
Darashaw Vakil
COMMENTS
Scope and application. —This section is an attempt to import into India what used to be known in
England "the rule against double possibilities". The principle is clear, namely that a person disposing of property to
another shall not fetter the free disposition of that property in the hands of more generation than one. The rule is
quite distinct from the rule against perpetuity, though their effects some times overlap. 21
Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.22
Section 13 requires two conditions to be fulfilled :
(1) The transfer inter vivos cannot be directly made to an unborn person but must be preceded by a prior
disposition in favour of a living person.
(2) The interest given to the unborn person is the whole of the interest remaining in the transferor. 23
The expression "the whole of the remaining interest of the testator" does not mean the whole property of the
testator but even a fractional interest in any property can be given to unborn person provided it is not subject to
other conditions. 24 The word "extends" is directed to the extent of the subject matter, and to the absolute nature of
the estate conferred and not to be certainty of its vesting. Vesting must take place within the limits prescribed by
Section 15. 25
Interest created in favour of an unborn person such as referred to in Section 13 is dissimilar to the interest
envisaged by Section 20. Section 20 refers to the creation of a limited interest by the transferor in favour of
someone in the first instance and the creation of a successive interest in someone else thereafter. What Section 13
forbids is the creation of an interest in favour of a second person unless that interest is the entire interest possessed
by the transferor after the creation of the interest on the first occasion. Section 13, therefore, has application only to
cases where the interest created on the first occasion is a limited interest and such transfer is followed up by the
creation of another interest. 26 The provisions of Section 13 do not control the provision of Section 20. 27
Sections 13, 15, 16 & 20 are restrictive in character and limit the freedom of disposition. They must be read in
conjunction with Sections 19 and 21, which define a vested interest and a contingent interest, and also in
conjunction with Section 22 which deals with class gifts which vest at a particular age, also Section 14, which may
Page 2 of 9
S. 13. (A)
be conveniently described as the regulation against perpetuities. 28
By clause 4 in the document the widow and the sons of the first party were given absolute interest on the death of
the first party. Similarly, by clause 5 the sons of the second party were given the absolute interest on the death of
the second party. Clause 6 provided that if the first party died without getting married, those sons of the second
party who would be alive then will get the entire 16 annas of the property mentioned in the schedule in equal shares
in absolute right. 29 The proviso to Clauses 4, 5 and 6 specifically mentioned and it provided that the settlement
made in favour of the persons in Clauses 4, 5 and 6 would take effect in absolute right only after the death of the
first, second and third party, and until then those persons would have mere right of residence. 30 A part of a
document may be a Will notwithstanding that the same document may contain other provisions which was meant to
be carried into effect during the lifetime of the executant of that document. 31 Clauses 4, 5 and 6 read with the
proviso, therefore, operated as a Will. 32
The rule in this section has been enacted to regulate settlements created by nontestamentary instruments as the
illustration to the section shows.
Wills. —In the

Indian Succession Act , XXXIX of 1925, a rule similar to the one enacted in this section as to non-
testamentary instruments has been enacted in Section 113 for regulating testamentary dispositions.
Child "in gremio matris." —By rule now generally adopted in jurisprudence, a child in embryo at the
date of the instrument who afterwards comes into existence is in contemplation of law in existence at the date of the
transfer. 33 Accordingly, the prior instrument may be for the benefit of such child. 34
Adoption. —Another exception to the rule that the subsequent transferee must be capable of taking at
the time when the transfer takes effect on the determination of the prior interest is the case of an adopted son. A
boy adopted on a man’s death is in contemplation of law begotten by that man. Cases are frequently met with
where an adoption is made on the day following the execution of a settlement whereby the adopted son takes the
property on the determination of a prior interest. 35
Moveables. —Forming part of Chapter II, the section applies to both moveable and immovable
properties.
Remoteness. —The provisions of this section are enacted to prevent an attempt to create an interest in
favour of future generations by declaring such a transfer, if attempted, to be void for remoteness and such has been
the law whether the case is governed by general principles or by the present section or by Hindu or Mahomedan
Law if the operation of the section is excluded by Section 2 (d) of the Act in their case.
When a transfer under the section is void. —On the ground of remoteness of limitation a transfer is
void when (1) it is made in favour of a living person as required by Section 5 of this Act, or (2) in favour of one not in
existence at the date of the transfer subject to a prior interest, provided the latter interest extends to the whole of
the remaining interest of the transferor in the property. By reason of the rule enacted in this section the words "living
person" in Section 5 includes a person not in existence at the date of the transfer.
Page 3 of 9
S. 13. (A)
Prior interest. —A prior interest is not effected by reason of the subsequent interest being rendered
void by this rule. 36 It is neither extinguished nor enlarged.
Subsequent interest. —The latest date when the subsequent transferee should come into existence is
the date when the prior interest determines, for if at the date the prior interest comes to an end the subsequent
transferee is a person not in existence on that date there would be a resulting trust. The period of gestation would
be allowed.
Resulting trust. —Where a transfer offends the rule enacted in this section on the determination of the
prior interest the estate reverts back to the settlor or his estate as the case may be, and there is a resulting trust in
favour of the settlor under
Section 83 of the Indian Trusts Act , II of 1882.
Absence of present interest in an agreement to grant land at request. —In compromise of litigation
the proprietor of a hill agreed with a society of Jains that if the society should require a site thereon for the erection
of a temple, he and his heirs would grant a site free of cost. The proprietor afterwards alienated the whole hill. The
society by their representative sued the alienees for possession of a site defined by boundaries, alleging notice to
the proprietor requiring that site, and that they had taken possession but had been dispossessed. Held that the
action failed because the agreement conferred on the society no present estate or interest in the site and was
unenforceable as a covenant since it did not run with the land and infringed the rule against perpetuities. 37
Gift in favour of unborn persons. —It is quite true that no interest could be created in favour of an
unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some
are not, it does not fail in its entirety; it is valid with regard to the persons, who are in existence at the time of the
testator’s death and is invalid as to the rest. 38 A bequest made in favour of unborn children is valid. 39
Vested interest created on the unborn children who were not in existence at the date of transfer and that too without
any right of alienation for generations was held invalid. 40
Rights of sons of donee subsequent to the transfer is not just spes successions , but vested right as property stood
in them on their birth. Hence, sale of property made by donee after the birth of his sons was held invalid. 41
A gift deed made in favour of unborn persons must be in respect of the whole property of the testator. 42 The fact
that unborn child gets share in the gifted properties is immaterial if the provisions of Sections 13 and 14 are not
violated. 43
Under
Section 13 of T.P. Act transfer cannot be made directly to an unborn person as the definition of transfer
in
Section 5 of T.P. Act is limited to living persons. The transfer in favour of an unborn person can be made
by a machinery. It is intended to express this distinction by the words "for the benefit of" the trustees being the
transferees who hold the property for the benefit of the unborn persons. The estate must vest in some person
Page 4 of 9
S. 13. (A)
between the date of the transfer and the coming into existence of the unborn person. The interest of the unborn
person must therefore be in every case preceded by a prior interest. Section 13 says that the interest of the unborn
person must be the whole remainder. The illustration to Section 13, that the interest created for the benefit of the
unborn eldest son is only a life interest and it therefore fails.44 What is given to unborn person need not necessarily
vest in him at his birth. Vesting must, however, takes place other than the limitations prescribed by Section 14.
Section 14 of the T.P. Act controls
Section 13 of the T.P. Act and as such both these sections should be read together.45 In
F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat , 46 their Lordships of the Supreme Court held
:—
"There is no ban on the transfer of interest in favour of an unborn person. Section 20 permits an interest being created for
the benefit of an unborn person who acquires interest upon his birth. No provision has been brought to our notice which
stipulates that full interest in a property cannot be created in favour of unborn person. Section 13 has no applicability to the
facts and circumstances of the present case. In the present case, the donor gifted the property in favour of the appellant,
then living, and also stipulated that if other male children are later born to her brother they shall be joint holders with the
appellant. Such a stipulation is not hit by Section 13 of the Act. Creation of such a right is permissible under Section 20 of
the Act. The respondent thus, became entitled to the property on his birth."
Where a donor by gift deed gave property to her brother’s son then living and also stated in the gift deed that other
male children born to her brother would also be joint holders with the donee, held the gift deed was valid in view of
the provisions of Section 20 and was not hit by the provisions of
Where the gift deed made in favour of unborn grand children was not in respect of the whole interest in the
property, the gift was held a void document. 48 Plaintiffs who were not born at the time of the execution of the
settlement deed in their favour, are bound by the acts of the life estate holder, which resulted in a Court auction sale
of the property covered under the settlement deed. 49
Where a donor, by gift deed, had given the property to his grandson R . The gift deed further provided that on the
death of R , the property would vest in the male children of the grandson. Held, the gift deed created life interest in
the grandson and an absolute interest in his unborn sons. The condition in the gift deed restraining alienation of
property by his grandson was not void. 50
A gift can be made to an unborn person subject to the following conditions : (i) that the gift shall be the whole of the
remaining interest of the testator in the thing bequeathed and not of a limited interest; and (ii) that the vesting is not
postponed beyond the life in being and 18 years, being the rule against perpetuating as laid down in Section 114. 51
Hindu Law. —Under Hindu Law a gift or bequest to a person unborn is void. A donee must be a person
in fact or in contemplation of law in existence and capable of taking at the time when the gift takes effect. 52 The
same rule has been enacted for transfers in Section 13. But Section 2 (d) excluded the operation of this section so
far as it applied to Hindus prior to the amendment by Act XX of 1929. The amendment has not been given a
Page 5 of 9
S. 13. (A)
retrospective effect. In consequence of the amendment, Section 2 (d) does not exclude the operation of Section 14
to Hindus. The
Hindu Disposition of Property Act , XV of 1916, was enacted to remove certain then existing disabilities in
respect of the power of disposition of property of Hindus for the benefit of unborn persons within certain prescribed
limits. According to Hindu Law as then administered in British India, a gift or transfer in favour of a person not in
existence was void. ThisAct enacted that within certain limits prescribed in Chapter II of the
Transfer of Property Act, 1882 , no disposition of property by a Hindu by transfer inter vivos shall be
invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of
such disposition. The Act is not retrospective. It extends to the whole of British India except the province of Madras.
The Madras Act, VIII of 1921, applies to the town of Madras and Madras Act I of 1914 to the Presidency of Madras.
Mahomedan Law. —A gift or transfer of property to an unborn person is void under Mahomedan Law. 53
The operation of Section 13 in the case of Mahomedans is excluded by Section 2 (d) of this Act. Moreover, the
Mussalman Wakf Validating Act, 1913 , enables persons professing the Mussalman faith to create wakfs
which are in all respects in accordance with the provisions of Mahomedan Law, for themselves, their families,
children and descendants for generation after generation, provided the ultimate benefits are reserved for the poor or
other religious, pious or charitable purposes of a permanent character recognized as such by Mussalman Law.
Prior to the Act 54 giving it a retrospective effect, the Courts in India held that the Act was not retrospective. 55 What
the law requires is that the properties must be substantially dedicated to charity and not that the gift to charity
should be substantial.
Where a Muslim had created Wakf-alal-aulad, the settlor had executed trust, had settled the properties for benefit of
the family, children or descendants from generation to generation and ultimately the property was to go to the holy
shrine for its maintenance, held that a valid trust was created and there was no violation of the rule of perpetuity
envisaged in
Sections 13 /
14 of the
the purposes of payment of estate duty.56
Limited estate. —A limited estate cannot be created for the benefit of an unborn person even though it
be subject to a prior interest in favour of a living person.
Maintenance and marriage expenses. —Provisions are met with in settlements wherein the interest
created for persons not in existence is made subject to the maintenance of widows and marriage expenses of
daughters of the family. Such provisions are valid under this rule provided they do not infringe the rule in the next
section.
Trust how extinguished. —A trust which is void under this section may be extinguished with the
consent of the person beneficially entitled. In the illustration, A could extinguish the trust with the consent of his wife
under
Time for ascertainment of facts. —The unborn person is determined on the termination of the prior
interest, particularly when described in general terms as heirs, for until the prior interest determines the heirs of the
settlor cannot be determined and it may be that such heir or heirs may be a person or persons living at the date of
Page 6 of 9
S. 13. (A)
the transfer. Trusts as in the illustration would receive a different construction for in such cases the person taking
the subsequent interest is determined at the date of the instrument.
The English rule of double possibility. —Though by rules of law an estate may be limited by way of
contingent remainder to a person not in esse for life or as an inheritance, yet a remainder to the issue of such
contingent remainderman as a purchaser, is a limitation unheard of in law nor even attempted. 57 This rule of law
forbids raising of successive estates by purchase to unborn children, that is, to an unborn child of an unborn child.
58 It applies to equitable 59 as well as legal estates. 60 It was antecedent to and independent of the modern rule of
perpetuities in respect of legal estates. 61 This rule of law prohibiting the limitation after a life-interest to an unborn
person of an interest in land to the unborn child or other issue of an unborn person is abolished. 62
Rule against perpetuity.
21 Ardeshir Baria v. Dadabhoy Baria,

AIR 1945 Bom 395 (396); Subramania Nadar v. Varadharajan , (2003) 2 MLJ (224)
(230).
AIR 1955 Mad 350 [
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248):
(2000) 6 Kar LJ 487 [
23 J. Venkata Satyanarayana v. P. Manickyan ,

AIR 1983 AP 139 [
LNIND 1982 AP 274 ] (140) (DB) :
(1982) 2 ALT 492 : (1983) 1 APLJ (HC) 22.
24 Subramania Nadar v. Varadharajan , (2003) 2 MLJ (224) (229, 230).
25 Framroze Dadabhoy v. Tehmina ,

AIR 1948 Bom 188 (192) (DB) :
(1947) 49 Bom LR 882 .
26 K. Vasanthappa v. K. Channabasappa ,
AIR 1962 Mys 98 (100).
AIR 1962 Mys 98 (100).
28 Framroze Dadabhoy v. Tehmina ,

AIR 1948 Bom 188 (192) (DB) :
(1947) 49 Bom LR 882 .
Page 7 of 9
S. 13. (A)
29 Pannalal v. Dilip Kumar ,

AIR 1977 Cal 297 [
LNIND 1977 CAL 143 ] (302) : 81 CWN 960 :
(1977) 2 Cal LJ 54 [
LNIND 1977 CAL 143 ].

AIR 1977 Cal 297 [
LNIND 1977 CAL 143 ] (302) : 81 CWN 960 :
(1977) 2 Cal LJ 54 [
LNIND 1977 CAL 143 ].

AIR 1977 Cal 297 [
LNIND 1977 CAL 143 ] (303) : 81 CWN 960 :
(1977) 2 Cal LJ 54 [
LNIND 1977 CAL 143 ]; Chandmul v. Lachhminarain,
(1900) ILR 22 All 162.
32 Pannalal v. Dilip Kumar,

AIR 1977 Cal 297 [
LNIND 1977 CAL 143 ] (303) : 81 CWN 960 :
(1977) 2 Cal LJ 54 [
LNIND 1977 CAL 143 ].
33 Jatindra Mohan Tagore v. Ganendra Mohan Tagore , (1872) 9 Beng LR 377; In re.
Wilmer’s Trusts, Moore v. Wingfield , (1903) 2 Ch. 411.
34 Long v. Blackall , (1797) 7 Term. Rep. 100 : 101 ER 875.
35 Jatindra Mohan Tagore v. Ganendra Mohan Tagore , (1872) 9 Beng LR 377.
36 Mahomed Shah v. Official Trustee of Bengal ,

(1909) 36 Cal 431 .
37 Maharaj Bahadur Singh v. Bhalchand , (1920) 25 W.N. 770 : 48 IA 376.
38 Raj Bajrang Bahadur v. Bakhtraj Kuer , AIR

1953 SC 7 (10) :
1953 SCR 232 [
LNIND 1952 SC 66 ].
39 P. Seetharamaswamy v. P. Sujya Kumar ,

2004 (2) Andh LT 308 (313) (AP) (Following AIR
1949 PC 244 :
AIR 1944 Mad 22 ; Sridhar and another v. N. Ravanna & others,
2012 (2) Kar LJ 202 (Kar)].
40 Esakkimutu v. Manickavadivoo,
(2010) 3 MLJ 945 [
LNIND 2009 BMM 1097 ] (949) (Mad).
Page 8 of 9
S. 13. (A)
41 Sridhar and another v. N. Ravanna & others ,

2012 (2) Kar LJ 202 (Kar).
42 Sopher v. Administrator General of Bengal , AIR

1944 PC 67 (70) : 71 IA 93 : 46 Bom LR 86.
43 Geeverghese v. Krishnan , AIR 1953 Trav-Co 89 (DB) : 8 DLR TC 170.
44 Subramania Nadar v. Varadharajan,

(2003) 2 MLJ 224 [
LNIND 2003 MAD 693 ] (229); F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi
Bhat , AIR 2004
SC 2665 (2669) :
(2004) 2 SCC 504 ..

(2003) 2 MLJ 224 [
LNIND 2003 MAD 693 ] (230).
46 AIR 2004
SC 2665 (2669) :
(2004) 2 SCC 504 .
47 F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat , AIR

2004 SC 2665 (2668, 2669) :
(2004) 2 SCC 504 .
48 Issac Nissim v. Official Trustee, Bengal ,

AIR 1957 Cal 118 [
LNIND 1956 CAL 81 ] (119).
49 C. Manoharan v. C.V. Subramaniam , 2006 (4) Mad LJ 898 (904, 905) :

2007 (1) Mad LW 391 (Mad).
50 Sridhar v. N. Revanna,
AIR 2012 Kant 79 [
LNIND 2012 KANT 25 ] (83, 84).

(2003) 2 MLJ 224 [
LNIND 2003 MAD 693 ] (230).
52 Jatindra Mohan Tagore v. Ganendra Mohan Tagore , (1872) 9 Beng LR 377; Sri Raja
Venkata v. Sri Rajah Suraneni , (1908) 31 Mad 310.
53 Mahomed Shah v. Official Trustee of Bengal ,

(1909) 36 Cal 431 ; Abdul Fata Mahomed v. Rasamaya ,
(1895) 22 Cal 619 .
Page 9 of 9
S. 13. (A)
54 The
Mussalman Wakf Act , XXXII of 1930.
55 Rukeya Banu v. Najira Banu ,

(1928) 55 Cal 448 ; Balla Mal v. Ata Ullah , (1927) 9 Lah 203 : 54 IA 372; Khajeh
Solehman v. Salimullah ,
(1922) 49 Cal 820 : 49 IA 153; Naim-ul-haq v. Muhammad ,
(1919) 41 All 1 ; Mutu Ramanandan v. Vava Levvai , (1917) 40 Mad 116 : 44 IA 21;
Amir Bibi v. Aziazabibi , (1915) 39 Bom 563.
56 Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty , AIR 1998
SC 2986 (2990) :
(1998) 6 SCC 267 [
LNIND 1998 SC 690 ].
57 Marlborough (Duke) v. Godolphin (Earl) , (1759) 1 Eden. 404 : 28 ER 741.
58 Monypenny v. Dering , (1852) 22 LJ Ch. 313 : 42 ER 826.
59 In re Nash, Cook v. Frederick , (1910) 1 Ch. 1; In re Oliver’s Settlement , (1905) 1 Ch. 191.
60 Whitby v. Mitchell , (1890) 44 Ch. D. 85.
61 Whitby v. Mitchell , (1890) 44 Ch. D. 85.
62 Law of Property Act, (1925) C. 20, S. 161.
End of Document
Darashaw Vakil
S. 14.
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.
End of Document
S. 14(A)(A)
Darashaw Vakil
COMMENTS

Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.63 The object of rule
against perpetuity as embodied in
Section 14 of the Transfer of Property Act is to restrain the creation of future conditional interest in the
property. It concerns rights of property only and does not affect the making of contracts which do not create rights of
property. It does not, therefore, apply to personal contracts which in effect do not create interest in property. An
ordinary contract for purchase entered into after the
Transfer of Property Act does not by itself create any interest in land but the obligation can be enforced
against a subsequent gratuitous transferee from the vendor of a transferee of value but with notice. The rule against
perpetuity has no application to contracts which create no interest in land.64 The rule against perpetuity as quoted in
Section 14 of the Transfer of Property Act begins with these words, "no transfer of property can operate
etc. The provision of Section 14 would therefore not apply to those cases in which there is no "transfer of
property".65 An agreement for sale is not a transfer of property at all. Therefore, Section 14 has no applicability. 66
The rule against perpetuity would come into operation where the transfer of property creates an interest, which is to
take effect after the lifetime of one or more persons living at the date of the transfer. 67
Where a condition is provided in the sale deed that before the vendee proposes to transfer the property to some
other person, he shall first offer to the vendor, the condition so imposed does not create any interest in the property,
does not offend the rule of perpetuity envisaged in Section 14. 68 The plea of the defendants appellants that the
deed of settlement was affected by rule against perpetuity and in view of Section 14 the plaintiff’s did not acquire
title, on the facts of the case was repelled. 69
From time immemorial the owner of property has a vested right inhered in him to deal with it in accordance with his
discretion. The right of disposition or alienation, which is co-existent with a right of ownership is so absolute that it is
easy to comprehend the potential force of that right. But equally salient and time honoured is the well-known rule
against perpetuity which is based on public policy which necessarily had to make certain dents on the exercise of
such absolute power in case it is sought to be abused. 70
Perpetuity has been said to be odious in law, destructive, to the common wealth, and an impediment to commerce,
by preventing the wholesome circulation of property. It is in this context that public policy enters into the picture and
discountenances, in equity, such dispositions, the result of which is to take away from the owner the power to
alienate the property or give the owner the power to create future unknown interests. The underlying principle is that
restraints in alienations and the rule against remoteness being the two principles well knit as between each other
ought not to be encouraged by Courts of law, which administers not only law but also equity and good conscience.
71 As pointed out in HALSBURY’S Laws of England , 3rd Edn. Volume 29, although the principle of private
Page 2 of 24
S. 14(A)(A)
ownership requires that an owner of property shall have power to dispose as he thinks fit, either during life or on
death, of his whole interest in the property he owns, yet public policy requires that the power should not be abused.
72
Where a clause in a trust deed dealt with division of the net income as between the named individuals in existence
and to be born, the clause offended the rule against perpetuities. 73
The rule against perpetuity is founded on the principle that the liberty of alienation shall not be exercised to its own
destruction and that all contrivances shall be void which tend to create a perpetuity or place property forever out of
the reach of the exercise of the power of alienation. 74
In English law a contract for purchase of real property is regarded as creating an equitable interest, and if, in the
absence of a time limit, it is possible that the option for repurchase might be exercised beyond the prescribed period
fixed by the perpetuity rule, the covenant is regarded as altogether void. 75
In the case of an agreement for sale entered into prior to the passing of the
Transfer of Property Act , it was the accepted doctrine in India that the agreement created an interest in
the land itself in favour of the purchaser, and following this doctrine the view was that a covenant for pre-emption
contained in a deed of partition, which was unlimited in point of time, was not enforceable in law.76 But there has
been a change in the legal position in India since the passing of the
Transfer of Property Act . Section 54 of the Act states that contract for sale of immovable property "does
not of itself, create any interest in or charge on such property". The second paragraph of Section 40 of that Act
taken with the illustration under that section establishes two propositions : (1) that a contract for sale does not
create any interest in the and, but is annexed to the ownership of the land and (2) that the obligation can be
enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice.77 The
rule against perpetuity which applies to equitable estates in English Law cannot be applied to a covenant of pre-
emption because
Section 40 of T.P. Act does not make the covenant enforceable against the assignee on the footing that
it creates an interest in the land.78 An agreement to sell immovable property does not, of itself, create any interest
in or charge on such property. Therefore a bare agreement to sell immovable property in future on demand by a
party to the agreement would not infringe the rule against perpetuities. 79
Where tenancy of land was created before the

T.P. Act with the express purpose of construction of pucca building for the residence and as such
tenancy was ordinarily transferable, restriction imposed against alienation in the Kabuliat was held offending the
rule against perpetuities, and as such was void.80
Where property was gifted to donor’s one daughter, giving her absolute right to alienate half of the property for
charitable purpose, the remaining half was to go to donor’s second daughter on donor’s death it was a case of
absolute gift in favour of the donee and not case of life interest only. 81 Where a sale deed provided that the vendee
would re-convey the property to the vendor if within a period of 15 years and after 2 years from the date of sale the
latter pays the purchase price, as the sale deed did not create any interest in the immovable property, rule against
perpetuity was held not applicable in the case. 82 The fact that unborn child gets share in the gifted properties is
immaterial if the provisions of Sections 13 and 14 are not violated. 83
Where the settlor settled the property in favour of his son-in-law M and also handed over documents of title to the
Page 3 of 24
S. 14(A)(A)
property to him indicating that he had divested himself of all the rights in the property, condition in the settlement
that M would have no power to alienate the property was held void, the sale deed executed by M’s daughter was
held valid. 84
Construction. —The Court struggles against a construction leading to the application of the rule and
will avoid a construction leading to a perpetuity. 85 The words "as near as the rules of law and equity will permit"
would not by their own force have controlled the construction. B devised freeholds upon trust for the use of E, his
nephew, for life with remainders to the use of his first and other sons of the successive tenants for life in tail male
and he bequeathed his residuary personal estate upon such trusts, etc ., as were thereby declared concerning the
devised freehold hereditaments "or as near thereto as the rules of law and equity would permit," provided
nevertheless that such residuary personal estate should not vest absolutely in any tenant in tail unless such person
should attain the age of 21 years. Held the words that "as near as the rules of law and equity will permit" would not
by their own force have controlled construction. 86
A Hindu settlor after distributing a portion of his estate settled the remainder in trust for himself for life and on his
death one-fourth of the income was settled on his son R for life and after his death to "all the male heirs of" R share
and share alike. A similar provision was made in favour of his daughter K and her "male heirs" as well as his
daughter P and her "children". The settlor died in 1894, K died in 1897 leaving six sons who were in existence at
the date of the settlement, R died in 1908 leaving five sons existing at the same time and P died in 1898 leaving a
daughter also in existence at the date of the deed. The sons of R filed a suit for construction of the trust deed which
was held as intended to create a perpetuity as regards the properties. 87
For the longest period allowed by law. —Such an expression does not save a limitation but the
instrument is void not on the ground of perpetuity but uncertainty as it is impossible to ascertain when the last life
would be extinguished and it is therefore impossible to say when the period of 21 years would commence. A
testatrix bequeathed a sum of 500 New Consols to trustees upon trust to apply the dividends thereof in maintaining
and keeping in repair the tomb of her brother in Africa, "for the longest period allowed by law, that is to say, until the
period of 21 years from the death of the last survivor of all persons who shall be living at my death." Held that such
a gift was void for uncertainty. 88 The language of all the cases is that property may be so limited as to make it
unalienable during any number of lives not exceeding that, to which testimony can be applied, to determine when
the survivor of them drops.
The parties to a family arrangement cannot ignore the rule of perpetuity embedded in Section 14. 89
Presumption against child-bearing. —It has been laid down on many occasions that it is not
permissible in determining rights in law to inquire into the capacity of a woman to bear children. 90
Uncertainty not perpetuity. —When a transfer is void for uncertainty it is unnecessary to consider
whether it transgresses the rule against perpetuity. 91
Moveable property. —The section applies to moveable property being part of Chapter II rendered
applicable by the Act to transfer of properties whether moveable or immovable. 92
Wills. —A similar rule 93 prevails in case of wills with this difference, that in case of a non-testamentary
Page 4 of 24
S. 14(A)(A)
instrument the validity of the interest created by the transfer of property is determined at the date of the instrument
while in the case of a will in considering the validity of the bequest the state of the family at the death of the testator
and not at the date of the will is to be regarded. A will is an ambulatory document having no force or effect until
death of the testator. 94
The rule against perpetuities. —The origin and growth of the rule of law against perpetuities, based as
it is upon public policy, is described in Cadell v. Palmer 95 and Thelluson v. Woodford . 96 According to
the rule every estate or interest must vest, if at all, not later than 21 years after the determination of some life in
being at the time of the creation of such estate or interest and not only must the person to take be ascertained but
the amount of his interest must be ascertained within the prescribed period. 97 A perpetuity, as it is a legal word or
term of art, is the limiting an estate either of inheritance or for years, in such manner as would render it inalienable
longer than for a life or lives in being at the same time and some short or reasonable time thereafter. The 21 years
are allowed because the law considers that time reasonable. The particular estate and the remainder must be
created at one and the same time as making part of the same estate. This is undoubtedly the general rule. The law
does not recognize dispositions which would practically make the property inalienable for ever. It is an equity
doctrine, the invention of Chancellors, in favour of alienation, that property could not be tied up longer than for a life
in being and 21 years after. 98
This is the rule against perpetuities. It started with limiting alienations to a life or lives in being, and later stretched to
include the period of gestation. And in Stephens v. Stephens 99 the Court extended it still further to 21
years, saying that this would not create a perpetuity. There are two well-known rules to the vesting of all executing
trusts and limitation. The one is that they must take effect within the period of a life or lives in being and 21 years
after with a sufficient allowance in addition for the birth of a posthumous child. It is not sufficient that it may vest
within that period; it must be good in its creation; and unless it is created in such terms that it cannot vest after the
expiration of a life or lives in being and 21 years and the period allowed for gestation, it is not valid, and subsequent
events cannot make it so. The other rule is that if at the time of its creation the limitation is so framed, as not, ex
necessitate , to take effect within the prescribed period, that is, if it is bad in its inception, it will not become valid by
reason of the happening of the subsequent events which may bring the time of actual vesting and taking effect
within the prescribed period by law. 1 The rule against perpetuities is that an executory trust or limitation not only
may but necessarily must take effect, if it takes effect at all, within a life or lives in being and 21 years after, and if at
the time of its creation the limitation is so framed as that an event can be named in which, if it should happen, the
rule would be infringed, the limitation is bad. If, therefore, the limitations being known, an event can be pointed to
such that if it happens the rule will be infringed, the limitation is bad. It is wrong and inconsistent with the decisions
to affirm that if at the date of the instrument (in this case the will) the limitations are not known, but are to be
determined in an indicated manner, the devise must fail because it may turn out when they are known that they
infringe the rule against perpetuities. 2
Where by a family arrangement a certain property in full proprietorship is given to a member with restriction that he
shall not alienate the property, the income of which would be used for charitable purpose, the restriction would be
binding on that member, but not his successors it offending rule against perpetuity envisaged in Section 10. 3 But in
case the member did not use the income of the property allotted to him for charitable property, the other members
would have right to take the property, the said condition did not violate the rule against perpetuity. 4 Where as per
recital of the Will, the property was given to the widow of the testator for her life, and after her death to two
grandsons, it was held that if was a perfectly legitimate manner of testamentary disposition, the widow could gift the
property to her next heirs which were grandsons, the gift was no more than acceleration of succession and there
was nothing illegal or irregular about the gift. 5
The recitals in the settlement deed that after the death of the settlee, her legal heirs should enjoy the property
Page 5 of 24
S. 14(A)(A)
without any right of alienation for generation after generation was held hit by the rule against perpetuity. 6
Number of lives. —There is no restriction as to the number of lives to which an estate may be limited.
The limitation of a term to several persons in remainder, one after another, if those persons were in being and
particularly named, could in no wise tend to the creation of perpetuity. 7
Number of lives do not count whether three or twenty, as they are all spending at the same time, all the candles
lighted up at once, all these limitations would be good; for in effect it is only for one life, viz. , that which shall
happen to the survivor. 8 In such cases it is the vagueness of the statement as to the persons during whose lives
the trust is to last that makes it an uncertainty and therefore void. In Thelluson v. Woodford , 9 MACDONALD, C.B.,
said as to the number of lives during which an executing devise is permitted by the rules of law, that it might be for
any number of lives the extinction of which would be proved without difficulty.
Persons living at the date of the transfer. —The section does not require that the lives chosen under
the section need be interested in the property for it is not material to restrain it to the life of the tenant for life. All that
the section requires is that it should be restrained to a life or lives in being. 10
Minority. —The legal period under the rule for a limitation is life or lives in being and the minority of
some person who shall be in existence at the expiration of the period and to whom if he attains full age the interest
created is to belong. In India, both under the Succession Act and the present Act the rule is that the minority must
be of the person interested. In English Law this is not necessary. 11 Unlike the fixed rule of 21 years in England, the
law here has stretched the period of limitation to minority. Minority in India is regulated by the Indian
Majority Act , IX of 1875.
Equitable interest in land. —Although the Act does not recognize equitable interests in land, contracts
for conveyance of land stand in a class by themselves and if they purport to do indirectly what the law forbids to be
done directly they are void, and the principles applicable are the same in India as in England. 12
All possible contingencies. —It should be borne in mind that in construing a covenant from the point
of view of the doctrine of perpetuities or to test it on the ground of remoteness it is the invariable practice of the
English Courts to pay regard to all possible contingencies and not to actual events only. 13 And this practice has
been followed in the Indian Courts. 14 It has been laid down with great force on many occasions that it is not
permissible in determining rights in law to inquire into the capacity of persons to beget or bear children. 15
Immediate parties. —A covenant which is affected by the vice of remoteness is void and ineffectual
even as between the immediate parties thereto. 16
Period of gestation. —A child en ventre sa mere is in contemplation of law treated as being alive. 17
There is no fixed rule of construction which compels a Court to hold that a child was born in the lifetime of the
testator because it was at that time en ventre sa mere . That peculiar rule of construction is limited to cases where
that construction of the word "born" is necessary for the benefit of the unborn child, as decided by Lord Westbury,
L.C., in Blasson v. Blasson . 18
Page 6 of 24
S. 14(A)(A)
The English authorities relating to the construction of the words "life in being" in the rule against perpetuities
establish this, that in construing the rule a child en ventre may be deemed a "life in being" and the period of
gestation might be added at both ends of the period of 21 years mentioned in the rule as this trifling prolongation of
the period during which property may be tied up did not in any way bring about the mischief against which the rule
was directed. 19 But the extension is for the benefit of such child only and not for any third person.
The whole of such years and months is not to be taken in gross. The Court considered 21 years as the limit and the
period of gestation to be allowed in those cases only in which gestation exists. 20
Vesting suspended for more than 21 years. —If the interest of an unborn child of a person in being
does not vest when that unborn child attains 21 the gift is too remote and void and the limitations over are void also.
21
Exceptions to the rule. —This rule has no application— 1. To personal contracts, 22 although there is
some connection with a reference to land. 23
2. To a revocable licence to enter and build up windows in default of the owner of the building doing so, 24 for
it does not give the adjoining owner any interest in land. If it did such an interest would be void for
perpetuity.
3. To covenants which run with the land, because they are so annexed to the land as to create something in
the nature of an interest in the land. 25
4. To transfers for benefit of public. 26
5. To a covenant giving a mortgagee a right of pre-emption. 27
6. To equity of redemption which is a present interest in property in exercise of which the property is sought to
be redeemed. 28
7. To a restrictive covenant or contract not being a limitation of property. 29
8. To general powers. 30
9. To an agreement to sell or to recovery land. 31
10. To an easement acquired in virtue of a local custom known as customary easement. 32
11. To a covenant for pre-emption. 33
12. To a covenant in a lease for perpetual renewal. 34
13. To a covenant in the lease deed which gives option to the lessor to terminate lease under given conditions.
35
14. To intents created or allowed by statute, 36 for example, a lease in perpetuity. 37
15. To corporations. 38
16. To payment of the debts of the transferor or any other person taking any interest under the transfer. 39
17. To provision of portions for children or remoter issue of the transferor or of any other person taking any
interest under the transfer.
Page 7 of 24
S. 14(A)(A)
18. To preservation or maintenance of the property transferred.
Easement "in futuro." —The reservation of an easement in futuro which may come into force at a time
beyond the period allowed by the rule against perpetuities is bad. 40
Remoteness when ascertained. —The rule in the section is directed against the first taking effect of
limitation and not in the determination thereof.
By a deed of settlement made in 1847 on the marriage of W, property was settled upon trust to pay the income to W
for life and after her death for such one or more of the children of the marriage in such shares and subject to such
conditions and limitations and in such manner as W should appoint by deed. There were three children of the
marriage, T.J. and H., and in 1890 W, by deed, appointed that after her death one-third of the property should be
held in trust for T, one-third in trust for J., and as to the remaining one-third upon trust to pay the income to H. If not
then a member of the Roman Catholic Church or of any sisterhood or until she should become a member of either
and subject as aforesaid as to capital and income to T and J. W died in 1893 and H became a member of a
sisterhood in 1895. Held, in accordance with the dicta in Boughton v. James , 41 that the appointment was not open
to objection on the ground of remoteness. 42
Limitations following a limitation void. —It has been held many times that limitations depending or
expectant upon a prior limitation which is void for remoteness is invalid. The reason appears to be that the person
entitled under the subsequent limitation are not intended to take unless and until the prior limitation is exhausted;
and as the prior limitation which is void for remoteness can never come into operation, much less be exhausted, it is
impossible to give effect to the intentions of the settlor in favour of the beneficiaries under the subsequent limitation.
43 And so is a life-interest given to a living person dependent upon an event which may transgress the rule invalid.
44 But limitations in default of appointment under a power which is void for remoteness are not necessarily invalid
unless they are themselves obnoxious to the rule against perpetuities. 45
Void restrictions on valid limitations. —The principle cannot be disputed that if the first estate in the
order of succession is not void for remoteness; if it is a good estate it would not be affected by the fact of the
successive estates being void on that account but the first or prior estate would not be benefited by the failure of the
successive estates. 46 Testatrix, in pursuance of a power in her marriage settlement, appointed a fund to her son C
for life, with remainder to his eldest son, provided that, in the event of their refusal to comply with a request by her
son. A to release their interests in certain other property their interests in the fund were to go over to her son A
absolutely. Held the condition was void as being contrary to the rule against perpetuities. 47
Future husband or wife. —A testator made a provision in his will as follows, "In case any of my said
children shall marry and have issue and any such child or children and his, her or their issue shall all die in the
lifetime of any husband or wife with whom any of my said children shall have so inter-married then I give the share
or shares of my said children respectively unto such other of my said children as shall be then surviving and to the
respective issue of such of them as shall be then dead. It being my will and mind and full determination that none of
the son’s wives or daughter’s husbands shall become heirs to their children’s property." It was held that the gift over
in case any of his children and their issue should die in the lifetime of any husband or wife with whom his children
should have inter-married was too remote. 48
Covenant for pre-emption. —Such a covenant, prior to the

Transfer of Property Act at any rate, was within the mischief of the rule against perpetuities.49 Now the
Page 8 of 24
S. 14(A)(A)
settled position of law is that a covenant for pre-emption does not offered the rule against perpetuities and cannot
be considered to be void in law. 50
A covenant binding one party and his successors to sell to another and his successors is a covenant unlimited in
point of time and therefore not enforceable. 51
Instances in which the Courts have refused to enforce such or similar covenants when they were sought to be
enforced by or against the successors in interest of the covenantors themselves are common. 52
Contract for transfer of immovable property. —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. It does not of itself create
any interest in such property and is therefore not within the rule against perpetuities. 53 A bare agreement to sell
immovable property in future by a party to the agreement cannot infringe the rule against the perpetuity embodied in
Section 14 applies as much to contracts for transfer as to actual transfers though Section 54 enacts an important
distinction between the two. The rule against perpetuities vitiates the offending covenant from end to end. The
words of Section 14 are "no transfer can operate to create an interest." The agreement cannot be split up into two
parts, viz. , that which would create an interest and therefore valid and the other which may not create an interest.
The covenant is forbidden by law and is absolutely void even in part and void ab initio , and this whether the
covenant is between the immediate parties or their successors, and they come within the mischief of the rule. Prior
to the
Transfer of Property Act the Indian Legislature recognized that a contract for the sale of immovable
property as under English Law created an equitable interest in the property and made the purchaser the owner in
equity. And this followed from illustration (g) to Section 3 and illustration (a) to Section 13 and Section 27, clause (b)
of the
Specific Relief Act , I of 1877, also Section 17, (2)of the
Registration Act , XX of 1866, and Section 17,clause (b) of the
Registration Act , III of 1877. The only decision of the Privy Council on the subject is Maharaj Bahadur
Singh v. Balchand Choudhury . 55 Where the proprietor of a hill had in 1872 agreed with a society of Jains that if the
latter required a site thereon for the erection of a temple he and his heirs would grant the same free of cost and
thereafter alienated the hill in favour of a third party. The society then sued the alienees for possession alleging that
they had given notice to the proprietor requiring the site and further alleging that they had taken possession but had
been dispossessed. The Judicial Committee held that such a covenant as this cannot and does not run with the
land and could not be so enforced. Further, if it could be regarded in another light, viz. , an agreement to grant in
future whatever land might be selected which is a site for a temple, as the only interest created would be one to
take effect by entry at a later date and as this date was uncertain, the provision offends the rule against
perpetuities. This pronouncement is sufficient authority for the proposition that a covenant for preemption prior to
the
Transfer of Property Act , at any rate, was within the mischief of the rule against perpetuities. The
Madras High Court in Ramasami v. Chinnan Asari , 56 while dealing with the case of a more restricted power of a
Hindu by virtue of clause (d) of
Section 2 of the Transfer of Property Act , doubted whether the English doctrine of perpetuities and
Section 14 of the Transfer of Property Act which applied to transfer of interest in land would apply to
contracts for sale of land in India, observing that there was really no substantial difference between English and
Indian Law in respect of contract of sale of immovable property and it did not seem reasonable and in accordance
with the principles of general jurisprudence that there should be some limit of time beyond which the performance of
contracts for the transfer of property by way of sale, pre-emption or otherwise must not be allowed to be held in
suspense or postponed.
Page 9 of 24
S. 14(A)(A)
In India, on the one hand, a substantive law of property, viz. ,

Transfer of Property Act , IV of 1882, does not recognize equitable interest in land and the rule of English
Law that the contract for sale of real property making the purchaser the owner in equity of estate has no application
to those parts of India where the
Transfer of Property Act is in force,57 while on the other hand Section 27 (a)of the
Specific Relief Act, 1963 recognizes that contracts with regard to land can be specifically enforced
against third parties in certain cases.Section 91 of the Indian Trust Act, 1882 also lays down that a transferee taking
with notice of a prior contract in favour of another, must hold the right obtained under the transfer as a trustee for
the previous promisee. A series of judicial decisions has settled the view that contracts of this description, if they
purport to do indirectly what the law forbids to be done directly, are void and the principles applicable to them are
the same in India as in England. In the latter country, what may now be considered to be the leading case on the
point is that of London and South Western Railway Co. v. Gomm , 58 where the Court of Appeal held that an option
to purchase gave an equitable interest which was within the rule against perpetuities. The authority of this is
supreme at the present moment and it is unnecessary to deal with subsequent decisions which have explained or
followed this principle. 59 Another principle that should be borne in mind is that in construing a covenant from the
point of view of the doctrine of perpetuities or to test it on the ground of remoteness it is the invariable practice of
the English Courts to pay regard to all possible contingencies and not to actual events only, 60 and this practice has
been followed in Indian Courts. 61 Now contracts of pre-emption admit of different varieties according as the
promise is made by one person in favour of another or by one person for himself and his heirs, etc ., in favour of
another or in favour of another and his heirs, etc ., and there may be also further varieties caused by the promise on
the side being made by one person or by one person for himself and one person for himself and his heirs and so
on. There is nothing inherently wrong or objectionable in a contract between persons tying up property for a limited
time for a definite purpose or for the sake of mutual convenience. To a personal contract the doctrine of perpetuities
or of remoteness has no application. 62 On the other hand, a covenant binding one party and his successors to sell
to another and his successors is a covenant for pre-emption unlimited in point of time, and has been held not
enforceable in numerous cases in different Courts in this country. So a case where A and B respectively for
themselves and their heirs for all times agreed to a right of pre-emption for each other and their heirs, is bad as
offending the rule against perpetuities and on the ground of remoteness. It is a covenant which amounts to an
agreement to convey immovable property upon happening of an event which might occur at a more remote period
that the lives in being and 18 years afterwards. 63 Instances in which Courts have refused to enforce such or similar
covenants when they were sought to be enforced by or against the successive interests of the covenantors
themselves are common. Amongst such instances may be cited a case in which a conveyance executed by the
plaintiffs in favour of the defendant’s father it was provided that if the latter sold the property subsequently he would
be bound to give preference to the plaintiff and the covenant was sought to be enforced against the defendants who
were the sons of one of the contracting parties. 64
In Nabin Chandra v. Rajani Chandra , 65 a Hindu transferred certain immovable property to his son-in-law,
reserving a condition that if the transferee or his successor found it necessary to sell the property he must sell it to
the vendor or his nephew or his heirs at a specified price and the son of the son-in-law having sold the property to
strangers the nephew unsuccessfully sued for enforcement of his right of pre-emption. In Kolathu Ayyar v. Ranga
Vadhyar , 66 a covenant of pre-emption between two persons was sought to be enforced against the heirs of one of
them and the Court observed that one who had obtained a promise for the conveyance of the land had by virtue of
Section 27(b) of the Specific Relief Act and Section 91 of the Trust Act "a substantial interest in it." This
case was later distinguished by the same Court which held that a contract to reconvey whenever demanded was
personal and that it created no interest in land and was not void under this rule.67 In a recent case the Madras High
Court while dealing with a counter-part agreement by the purchaser on the same day as the sale deed to convey
the land to the vendor on his paying the sale price in a limited period mentioned in the agreement, on the ground
that such an agreement did not create any interest in land, held that the undertaking by the purchaser was not a
mere standing offer but an executory contract giving a right to the vendor to get a conveyance from the purchaser,
that it was assignable by the vendor and was not void as offending the rule against perpetuities. 68 In a Bombay
case 69 the dispute was for right of pre-emption in favour of the vendor and his heirs against the purchaser and his
heirs where on an originating summons the covenant in question was held void as offending the rule of perpetuities.
The agreement was of 18th September 1878 and being prior to the
T.P. Act , was regarded as creating an equitable interest in the property.
Page 10 of 24
S. 14(A)(A)
A similar agreement prior to the

Transfer of Property Act was held to create an equitable interest in the property. There, in execution of a
decree against the plaintiff’s father, land belonging to him was sold at a Court sale and purchased by an auction
purchaser who sold it to defendants’ father on 14th May 1874. The latter on the same day agreed to reconvey the
land to a brother of the plaintiff on payment of a certain sum of money. It was held that the agreement was void as
offending the rule against perpetuities.70 A later Full Bench decision of the same Court held that the sale passes
the title absolutely to the purchaser and the agreement to resell in no way limits his right as owner. 71 The
Allahabad High Court has held that a contract of pre-emption was not void for uncertainty nor as being opposed to
public policy, neither did it offend the rule against perpetuities, inasmuch as it did not create an interest in
immovable property. 72 A contrary view has been taken by the Patna High Court that a covenant for pre-emption
unlimited in point of time was void as offending the rule. 73 But the same Court has held that a covenant in a
mortgage creating a right of pre-emption in favour of the mortgagee the operation of which is not to extend beyond
the lifetime of the parties is not obnoxious to the rule. 74
Hindu Law. —The section prior to the

Amending Act , 20 of 1929, did not apply to Hindus by virtue of Section 2 (d)as it then stood. Now this
section applies to Hindus. Further, the
Hindu Disposition of Property Act , XV of 1916, makes provision for the application of limitations
described in Chapter II of the
Transfer of Property Act to transfers inter vivos by Hindus. This Act applies to British India except the
province of Madras where the Madras Act I of 1914 is enacted for the Presidency of Madras and for the town of
Madras Act VIII of 1921. An agreement between coparceners never to divide certain property is invalid under Hindu
Law as tending to create a perpetuity. 75 Under Sections 14, 16, 17 and 18, non-charitable dispositions, void for
perpetuity, will not be validated by the presence of charitable trusts. 76 The device which gives absolute right to the
legatee in existence after the death of the widow who is given a limited interest therein cannot be said to be one in
contravention of the principle of Hindu Law. 77
Parties to a family arrangement cannot ignore/disregard the rule against perpetuities envisaged in Section 14. 78
Mahomedans. —The section does not apply to Mahomedans. Under the

Mussalman Wakf Validating Act of 1913 made retrospective by Act XXXII of 1930, it is lawful for a
person professing the Mussalman faith to create awakf of his property which is in all respects in accordance with
the provisions of the Mussalman Law by settling the same for the benefit of his generations in perpetuity for the
maintenance and support, wholly or partially, of his family, children or his descendants or where he is Hanafi
Mussalman for his own maintenance and support till his life, provided that the ultimate benefits are reserved for the
poor or a purpose recognized by Mahomedans as pious, religious or charitable of a permanent character.
Where a Muslim had created wakf-alal-aulad , the settlor had executed trust, had settled the properties for benefit of
the family, children or descendants from generation to generation and ultimately the property was to go to the holy
shrine for its maintenance, held that a valid trust was created and there was no violation of the rule of perpetuity
envisaged in sections 13 o 14 of the
the purposes of payment of estate duty.79
Where a Wakf has been created for the benefit of the wakif, members of his family and his descendents, the wakf
offends the rule against perpetuity and is hit by the provisions of Section 12 of the Act. 80
Page 11 of 24
S. 14(A)(A)
Clause for re-entry in a lease. —A clause entitling the lessor to terminate a permanent lease at any
time does not offend against the rule of perpetuities. 81
Covenant for renewal of lease. —A covenant in a lease for renewal from time to time at the option of
the lessee is not void as being in violation of this rule. Covenants for renewal differ from covenants for pre-emption
in regard to this rule. 82 The option given by the lessee to the lessor to resume the leasehold land is merely a
personal covenant which creates an interest in land and so the rule against perpetuity contained in Section 14 of
the Act would not be applicable. The clauses containing the option to get the lease renewed on the expiry of each
term of ten years can by no means be regarded as creating an interest in property of the nature that would fall
within the ambit of Section 14. 83
A covenant in a lease that if the lessee or his representative intended to transfer the whole or any portion of the
lease the transfer would be made in favour of the lessor for a proper price offends the rule against perpetuities.
Cases of pre-emption stand on their own peculiar law. 84
Where a lessor by a patni pattah after easing a mauzah exempted from its operation certain lands and covenanted
that on certain contingencies happening the lessee should acquire a right thereto as patnidar but no time was
specified within which the contingency was to happen in order to vest the right in the patnidar, held such a covenant
was void as offending the rule even as between the parties to the covenant. 85
"Interesse termini." — Interesse termini , which a reversionary lease (say for a term to commence
more than 21 years after its date) confers on the lessee, is not an executory but an immediate vested interest. Such
a reversionary lease therefore does not offend the rule against perpetuities. 86
Lease in perpetuity. —A executed in favour of W. an ijara lease for a term of years which contained the
following covenant on the part of the lessor, "If out of the Ijara Mehal you require any land for the purpose of
erecting any indigo factory or silk factory or excavating any bund or tank or for construction of any cutchery house I
shall grant you a Mourasi Mocurrari Pattah for it on proper rent." It was held that the lease was valid and that the
covenant did not infringe the rule against perpetuities. 87
Rule against perpetuities and contracts. —The rule against perpetuities falls within the branch of the
law of property and its true object is to restrain the creation of future conditional interest in property. The rule
against perpetuities is not concerned with contracts as such or with contractual rights and obligations as such. It is
well established that the rule of perpetuity concerns rights of property only and does not affect the making of
contracts which do not create rights of property. The rule does not apply to personal contracts which do not create
interest in property even though the contract may have reference to land. 88
Contract of indemnity. —A security bond was executed by a third party to a purchaser undertaking to
compensate the latter with equivalent lands in case the purchaser or his representative was deprived of possession.
It was held that the bond was only a covenant for indemnity and not a covenant for title; that a covenant for
indemnity was not one running with the land and therefore not enforceable and even if such property was rendered
pemanently liable to the purchaser or his assigns it would be unenforceable as offending the rule against
perpetuities. 89
Page 12 of 24
S. 14(A)(A)
Transaction not amounting to a transfer of interest. —The rule in the section does not apply to a
transaction which does not amount to a transfer of interest. An agreement to pay maintenance allowance to a
person and to continue to pay the same to his descendants from generation to generation making it a charge over
the property creates a charge and not a mortgage and does not offend the rule. 90
Section 14 of the T.P. Act can only come in play when there is transfer of interest in property. The
creation of a charge is not a transfer of an interest in property. Creation of an annuity in perpetuity does not go
against Section 14.91
"Cy pres" doctrine. —A settlor made a trust in the following words :— "To expend after the liquidation
of all the debts the sum of Rs. 500 per month for such medical and educational charities within the zemindaris of
the settlor as shall with the approval of the settlor appear just to the trustee." He died before approving any trust
and the zemindari was sold before any charitable trust was selected by the trustees. It was held that the conditions
precedent to the
constitution of the trust were not satisfied and it failed.
The question whether a charitable trust, if otherwise valid, is vitiated by the rule against perpetuities was left open,
but it was pointed out that the preponderance of authority was for the proposition that the doctrine of cy pres was
applicable only in wills and not in deeds.
Between the applicability of the cy pres doctrine and the failure of a charitable trust for the non-satisfaction of a
condition precedent, the distinction is that in the former there is the breakdown of the machinery required to carry
out validly-created charitable trusts and in the latter there is the initial failure of the conditions essential to bring the
trust into existence. 92
Where the dominant intention in creating the trust was to benefit the members of the family of the author of the trust
and to see that the property were not alienated by them forever, there was only a partial dedication under the trust
deed for religious purposes, the properties retained their private and secular character, and were only subject to a
charge for religious purposes, it was held that in the circumstances, the provision for the benefit of the trustees and
other heirs and relatives of the author of the trust failed as it was hit by the rule against perpetuities. 93
Indefinite failure of issue. —Two brothers, K and N, subject to the Dayabhaga School of Hindu Law,
executed on 28th March 1866, a document whereby after reciting that, "whereas body is mortal it is impossible to
say what may befall at what time, and as ruin may ensue from disputes relating to the shares arising in future
among son, daughter, daughter’s son and childless widow unless some rules are regularly framed, and it has
accordingly become necessary to prescribe a set of rules in that behalf, and hence the rules mentioned below are
laid down : these shall become operative and come into force on our death," they purported to provide for the
permanent devolution of their respective properties in the direct male line, including adopted sons, with the
conditions that in case of failure of lineal male heirs in one branch the properties belonging to that branch should go
to the other, subject to the same rule, and only in the absence of male descendants in the direct line in either
branch were the properties to go to female heirs and their descendants. K died in 1868, leaving a son A, a daughter
D, his brother N, and their mother C. A died in 1872 without any issue and C in March 1901. The plaintiffs
(appellants), who were the sons of D, instituted this suit on 29th July 1901, against N claiming as next reversioners
to A, their maternal uncle, the properties which originally belonged to K and which had since come into the
possession of N, the defendant. N died shortly after the suit was brought, his sons (the respondents) being
substituted for him on the record. Their contention was that under the instrument of 1866 the properties in dispute
passed on the death of A to N and on his death to them.
Page 13 of 24
S. 14(A)(A)
The Judicial Committee held that the clear intention of the instrument of 1866 was to vary the rules of Hindu Law
and to control the devolution of the properties until the indefinite failure at some remote period of the male line of K
and N, and that such an attempt to alter the mode of succession was, on the principles laid down in the case of
Jatindra Mohan Tagore v. Ganendra Mohan Tagore , 94 illegal and void. Throughout the instrument there was no
indication of an intention to make a gift to any person; and there was no warrant for the contention that there was a
devise in favour of A with a gift over to N, his uncle. The question was not whether the gift was good in the event
which happened, but whether it was good in its creation. 95
Powers. —General powers are exempt from the restriction of this rule for there exists, by the existence
of the power, a present, immediate and unrestrained alienability. Particular or special powers such as a power to
appoint among a named class of persons differ from general powers in that the donee has not an unrestricted
power of alienation and in that case the rule against perpetuity requires that all limitations made in pursuance of the
power shall be such only as would have been valid if inserted in the original will or settlement. When the power is
exercised the limitations created under it are to be written into the instrument which created the power and if and so
far as they do not exceed the rule against perpetuities they are good. 96
Sections 13 and 14. —Both sections deal with limitations on disposition and aim at setting bounds to
the disposing power of property laying down restrictions against the natural wishes of men to perpetuate property in
their own families. Section 13 deals with remoteness of limitation while Section 14 prevents property from being
chained longer than the period prescribed therein and enacts that the vesting must be within the compass of life or
lives in being and the minority of a person who shall be in existence at the death of the survivor. Section 13 dealing
with remoteness enacts that a transfer of property may be made in favour of an unborn person subject to a prior
interest provided that such unborn person takes the whole of the remaining interest of the transferor in the property.
This section leaves it open to allow the estate to remain in abeyance or suspense between a prior interest and the
taking effect in favour of an unborn person so that any number of years may elapse between the extinction of a
prior interest and the interest in favour of an unborn person taking effect. To guard against this abuse tending to
perpetuate the property in the family Section 14 enacts that a settlor shall not lock his property for a greater period
than a life or lives in being and the minority of a person who shall be in existence at the death of the longest
survivor. In either case the law’s anxiety is to set a restraint on alienation.
Section 14 and 15. —By a deed of trust dated the 27th April 1921, C.D., settled various properties on
trust for himself and his family and after his death, the trustees were directed to pay Rs. 20 per month "to the
daughter or each of the daughters, if more than one, for and during the term of her or their natural life and lives,
commencing from the date of her or their marriage."
Held, that the principle in Leake v. Robinson 1 applied to Hindus, and, in the case of a gift covered by
Section 14 of the Transfer of Property Act , Section 15 of the Act applies, subject to it being shown that
there is some rule of Hindu Law at variance with that section. Section 3 (a)of the
Hindu Disposition of Property Act, 1916 does not exclude the application of
Section 15 of the Transfer of Property Act , in a case which is covered by Section 14 of the Act.
Therefore the gift to the daughters was bad.2
Life estate in wife’s favour—Rule against perpetuity. —Where both the wife and the husband are
living and they intend to have benefit of the property for their life and vested remainder to their unborn children,
there is nothing to have the remaining vested remainder to their unborn children creating life interest in themselves.
This life estate created in favour of the wife, the better half of the husband, is entitled to enjoy for life along with the
husband and on his demise for her residue period. Thus created an interest in them to appropriate in presenti of its
usufruct for the personal benefit. So it cannot be said that the life estate created in favour of the wife offends the
principle of perpetuity envisaged by
Page 14 of 24
S. 14(A)(A)
Section 14 of the T.P. Act .3 Both the executant husband and the wife are competent to transfer only life
interest and not the title in the property. 4
Transfer for benefit of the public. —The restriction in this section does not apply when a transfer of
property is made for the benefit of the public in the advancement of religion, knowledge, commerce, help, safety or
any other object beneficial to mankind. 5
Transfer to class some of whom come under Sections 13 and 14.
AIR 1955 Mad 350 [
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248):
(2000) 6 Kar LJ 487 [
64 Jagar Nath v. Chhedi Dhobi ,

AIR 1973 All 307 (309) : 1973 All LJ 202.

AIR 1973 All 307 (309) : 1973 All LJ 202.

AIR 1973 All 307 (309) : 1973 All LJ 202.
67 Kannamal v. Rajeswar ,
AIR 2004 NOC 8 : 2003
AIHC 3628 (3630) (Mad); Rajeswari v. Kammammal ,
2007 (3) Mad LW 116 (119, 120) (Mad-DB) (Life interest created in favour of one
KMN, thereafter the property would go to the successors, restriction relating to alienation was held void).

AIR 1973 All 307 (309) : 1973 All LJ 202.
69 Rajeswari v. Kammammal ,
2007 (3) Mad LW 116 (119, 120) (Mad-DB).
70 M. Kesava Gounder v. D.C. Rajan,

AIR 1976 Mad 102 [
LNIND 1974 MAD 226 ] (109) (DB) : 89 Mad LW 205.
71 M. Kesava Gounder v. D.C. Rajan ,

AIR 1976 Mad 102 [
LNIND 1974 MAD 226 ] (109) (DB) : (1976) 1 Mad LJ 56.
Page 15 of 24
S. 14(A)(A)

AIR 1976 Mad 102 [

AIR 1976 Mad 102 [
74 R. Kempraj v. Burton Son and Co., AIR 1970

SC 1872 (1874) :
(1969) 2 SCC 594 [
LNIND 1969 SC 302 ].
75 Ram Baran v. Ram Mohit , AIR

1967 SC 744 (748) :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ].
76 Tripoota Soonduree v. Juggur Nath Dutt , (1874) 24 Suth WR 321; Maharaj Bahadur
Singh v. Bal Chand , AIR
1922 PC 165 ; Allibhai Mahomed v. Dada Alli ,
AIR 1931 Bom 578 .

1967 SC 744 (747, 748, 749) :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ].

1967 SC 744 (749) :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ]; Shivji v. Raghunath , AIR
1997 SC 1917 :
(1997) 10 SCC 309 [
LNIND 1997 SC 318 ] (311).
79 R.S. Ghadge v. L.S. Ghadge ,

AIR 1960 Bom 105 [
LNIND 1959 BOM 36 ]: 61 Bom LR 1170 :
ILR 1959 Bom 1705 [
80 Bishunpuria v. Panchkari ,
AIR 1954 Cal 541 [
LNIND 1954 CAL 30 ] (DB) : 93 Cal LJ 219.
81 Vimala v. B. Marayanaswamy ,
1996 AIHC 4170 (4176, 4177) (Kant).
82 Rashid Ali v. Dharparam Namasudra ,

AIR 1954 Ass 95 (96).
Page 16 of 24
S. 14(A)(A)
83 Geeverghese v. Krishnan , AIR 1953 Trav-Co. 89 (DB) : 8 DLR TC 170.
84 Kanhamal v. Rajenswar ,
AIR 2004 NOC 8 : 2003
AIHC 3628 (3630) (Mad).
85 Boughton v. James , (1848) 1 HL Cas. 406 : 9 ER 815; Exel v. Wallace , (1751) 2 Ves.
Sen. 117 : 28 ER 77.
86 Christie v. Gosling , (1866) 35 LJ Ch. 667.
87 Balabhai v. Motabhai ,
(1925) 27 Bom LR 906 .
88 In re Moore, Prior v. Moore , (1901) 1 Ch. 936.
89 Surendera Vikaram Singh v. Munia Kunwar ,

AIR 1944 Oudh 65 : ILR 19 Luck 320.
90 In re Deloitte, Griffiths v. Deloitte , (1926) 1 Ch. 56; Ward v. Van Der Loeff,
(1924) AC 653 ; Re. Hocking, Mitchell v. Loe , (1898) 2 Ch. 567; In re Dawson,
Johnston v. Hill , (1888) 39 Ch. D. 155; Re. Sayer’s Trust , (1867) 36 LJ Ch. 350; Jee v. Audley , (1787) 1 Cox. 324 : 29
ER 1186.
91 In re Moore, Prior v. Moore , (1901) 1 Ch. 936.
92 Cowasji v. Rustomji , (1896) 20 Bom 511.
93
Section 114 of the Indian Succession Act , XXXIX of 1925.
94 Re . Thompson, Thompson v. Thompson , (1906) 2 Ch. 199.
95 (1833) 1 Cl. & Fin. 372 : 6 ER 956.
96 (1805) 11 Ves. 112 : 32 ER 1030.
97 Re . Thompson, Thompson v. Thompson , (1906) 2 Ch. 199.
98 In re. Ridley, Brickton v. Hay , (1879) 11 Ch. D. 645.
99 (1736) Cas. Temp. Talb. 228 : 25 ER 751.

Page 17 of 24
S. 14(A)(A)
1 Dungannon (Lord) v. Smith , (1846) 12 Cl. & Fin. 546 : 8 ER 1523.
2 In re. Fane, Fane v. Fane , (1913) 1 Ch. 404.
AIR 1958 MP 346 (352) :
1958 Cr LJ 1318 :
1958 MPLJ 449 .
AIR 1958 MP 346 (352) : 1958 Cr LJ 1318 :
1958 MPLJ 449 .
5 Gori v. Munshi Ram ,

AIR 1956 Punj 145 (146) :
ILR 1956 Punj 157 .
6 Esakkimutu v. Manickavadivoo,
(2010) 3 MLJ 945 [
LNIND 2009 BMM 1097 ] (949) (Mad).
7 Goring v. Bickerstaff , (1662) 1 Cas. in Ch. 4 : 22 ER 665.
8 Low v. Burron , (1734) 3 P. Wms. 262 : 24 ER 1055.
9 (1805) 11 Ves. 112 : 8 ER 104.
10 Hopkins v. Hopkins , (1738) 1 Atk. 581 : 26 ER 365.
11 Packer v. Scott , (1864) 33 Beav. 511 : 55 ER 467.
12 Kalachand v. Jatindra ,
(1929) 56 Cal 487 ; London South Western Railway Co. v. Gomm , (1882) 20 Ch. D.
562; Edwards v. Edwards,
(1909) AC 275 .
13 Dungannon (Lord) v. Smith , (1846) 12 Cl. & F. 546 : 8 ER 1523; Jee v. Audley , (1787) 1
Cox. Eq. Cas. 324 : 29 ER 1186.
14 Srimati v. Jages Chandra , (1871) 8 Beng LR 400; Soudaniney v. Jogesh Chunder ,

(1877) 2 Cal 262 ; Nabin Chandra v. Rajani Chandra ,
(1920) 25 CWN 901 ; Ranganadha v. Bhagirathi , (1906) 29 Mad 412 ; Ram Newaz
v. Nankoo ,
AIR 1926 All 283 .
15 In re Deloitte, Griffiths v. Deloitte , (1926) 1 Ch. 56.

Page 18 of 24
S. 14(A)(A)
(1929) 56 Cal 487 ; Anatt Natt v. Kumar Keshav ,
(1910) 14 CWN 601 ; London & South Western Railway Co. v. Gomm , (1882) 20
Ch. D. 562.
17 Thellusson v. Woodford , (1805) 11 Ves. 112 : 32 ER 1030; Re. Wilmer’s Trust, Moore v.
Wingfield , (1903) 2 Ch. 411.
18 (1864) 34 LJ Ch. 18 : 46 ER 534.
19 Villar v. Gilbey,
(1907) AC 139 .
20 Cadell v. Palmer , (1833) 1 Cl. & Fin. 372 : 6 ER 956 (974).
21 Palmer v. Holdford , (1828) 4 Russ. 403 : 38 ER 857.
22 Matura Subba Rao v. Surendranath Sahu , (1929) 8 Pat 243 ; Mackenzie v. Himalaya
Assurance Co. Ltd .,
AIR 1926 Cal 745 ; Bimal Jati v. Biranja Kuar ,
(1900) 22 All 238 ; Kalimuddin v. Reazuddin ,
(1909) 14 CWN 295 ; Harris Paik v. Jahuruddi Gazi ,
(1897) 2 CWN 575 ; London & South Western Rly. Co. v. Gomm , (1882) 20 Ch. D.
562; Borland’s Trustee v. Steel Bros. & Co. Ltd ., (1901) 1 Ch. 279.
23 South Eastern Rly. Co. v. Associated Portland Cement Manufacturers , (1900) Ltd.,
(1910) 1 Ch. 12; Kalimuddin v. Reazuddin ,
(1909) 14 CWN 295 ; Jogesh Chandra v. Asabi Khatun , AIR 1927 Cal 41.
24 Smith v. Colbourne , (1914) 2 Ch. 533.
25 Muller v. Trafford , (1901) 1 Ch. 54.
26
Section 18,Transfer of Property Act , IV of 1882.
27 Haris Paik v. Jahuruddi Gazi ,

(1897) 2 CWN 575 ; Bimal Jati v. Biranja Kuar ,
(1900) 22 All 238 ; Biggs v. Hoddinoth , (1898) 2 Ch. 307; Santley v. Wilde , (1899)
2 Ch. 474; Orby v. Trigg , (1722) 9 Mod. 2 : 88 ER 276.
28 Padmanappa v. Sitarama Ayyar ,

AIR 1928 Mad 28 [
LNIND 1927 MAD 262 ]; Shahzadi Bibi v. Sheikh Jamal ,
(1913) 17 CWN 1053 .
29 Mackenzie v. Childers , (1889) 43 Ch. D. 265.

Page 19 of 24
S. 14(A)(A)
30 In re Fane, Fane v. Fane , (1913) 1 Ch. 404.
31 Avula Charamudi v. Marriboyma Raghavulu,

(1915) 28 MLJ 471 [
LNIND 1915 MAD 74 ] ; R.S. Ghadge v. L.S. Ghadge ,
AIR 1960 Bom 105 [
LNIND 1959 BOM 36 ]: 61 Bom LR 1170 :
ILR 1959 Bom 1705 [
32 Section 18, the Easements Act (V of 1882).
33 Birmingham Canal Co. v. Cartwright , (1879) 11 Ch. D. 421.
34 Hare v. Burges , (1857) 27 LJ Ch. 86 : 70 ER 19.
35 Ganesh Sonar v. Purnendu Narayan Singha ,

AIR 1962 Pat 201 (DB); Ali Hossain Mian v. Raj Kumar Haldar ,
AIR 1943 Cal 417 (DB) :
ILR (1943) 2 Cal 605 .
36 Sevenoaks Maidstone & Tunbridge Rly. Co. v. London Chatham & Dover Rly. Co .,
(1879) 11 Ch. D. 625.
37
Section 105 of the Transfer of Property Act , IV of 1882.
38 Mulliner v. Midland Railway Co ., (1879) 11 Ch. D. 611; Queen v. South Western Railway
Co .,
(1850) 14 QB 902 .
39 Section 17 o (2)of the

Transfer of Property Act , IV of 1882.
40 Sharpe v. Durant , (1911) 55 Sol. Jo. 423.
41 (1840) 1 HLC. 406 : 9 ER 815.
42 Wainwright v. Miller , (1897) 2 Ch. 255; Purnashashi Bhattacharji v. Kalidhan Rai

Chowdhuri ,
(1911) 38 Cal 603 : 38 IA 112.
43 Monypenny v. Dering , (1852) 2 De M. & G. 145 : 42 ER 826; Beard v. Westcott , (1822)

5 B. & Ald. 801 : 106 ER 1383.
44 In re Hewett’s Settlement, Hewett v. Eldridge , (1915) 1 Ch. 810; In re. Thatcher’s Trusts
, (1859) 26 Beav. 365 : 53 ER 939.
Page 20 of 24
S. 14(A)(A)
45 In re Abbott, Peacock v. Frigout , (1893) 1 Ch. 54; Rutledge v. Dorril , (1794) 2 Ves. 357;
Robinson v. Hardcastle , (1788) 2 Term Rep. 241 : 100 ER 131.
46 Dungannon (Lord) v. Smith , 12 Cl. & Fin. 546 : 8 ER 1523; Tregonwell v. Syndenham ,
(1815) 3 Dow. 194 : 3 ER 1035.
47 Re. Staveley, Dyke v. Staveley , (1920) 90 LJ Ch. 111.
48 Hodson v. Ball , (1845) 14 Sim. 558 : 60 ER 474.
(1929) 56 Cal 487 ; Ram Baran Prasad v. Ram Mohit Harzra , AIR
1967 SC 744 ; Shivji v. Raghunath,
(1997) 10 SCC 309 [
LNIND 1997 SC 318 ] (311):
(1997) 2 SCALE 346 [
LNIND 1997 SC 318 ]; AIR
1997 SC 1917 ; Ali Hossain Miya v. Raj Kumar Haldar,
AIR 1943 Cal 417 (FB); Maharaj Bahadur v. Balchand ,
(1926) Pat LJ 163 : 48 IA 376.
50 Ram Baran Prasad v. Ram Mohit Hazra, AIR

1967 SC 744 :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ]; Shivji v. Raghunath , AIR
1997 SC 1917 :
(1997) 10 SCC 309 [
LNIND 1997 SC 318 ] (311); Ali Hossain Miya v. Raj Kumar Haldar ,
AIR 1943 Cal 417 (FB); Sheonandan Prasad v. Kanhniyalal ,
AIR 1956 Nag 243 (244) (DB) :
ILR 1956 Nag 116 : 1956 NLJ 176.
(1929) 56 Cal 487 ; Sreemutty Tripoora v. Juggur Nath ,
(1875) 24 WR 321 ; Stocker v. Dean , (1852) 16 Beav. 161 : 51 ER 739.
52 Nobin Chandra v. Nabab Ali ,

(1900) 5 CWN 343 ; Nabin Chandra v. Rajani Chandra ,
(1920) 25 CWN 901 ; Kolathu Ayyar v. Ranga Vadhyar , (1912) 38 Mad 114 ;
Dinkarrao v. Narayan , (1922) 47 Bom 191.
53
Section 54, Transfer of Property Act , IV of 1882;Sheonandan Prasad v. Kanhniyalal ,
AIR 1956 Nag 243 (244) (DB) :
ILR 1956 Nag 116 : 1956 NLJ 176 ; Ali Hossain Miya v. Raj Kumar Haldar ,
AIR 1943 Cal 417 ; Ram Baran v. Ram Mohit , AIR
1967 SC 744 (747) :
(1967) 1 SCR 293 [
LNIND 1966 SC 173 ].

AIR 1967 Guj 81 [
LNIND 1965 GUJ 118 ]; Rakhama Sitaram v. Laxman Sitaram ,
Page 21 of 24
S. 14(A)(A)
AIR 1960 Bom 105 [

LNIND 1959 BOM 36 ]: 61 Bom LR 1170; Ram Baran v. Ram Mohit , AIR
1967 SC 744 (747) :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ].
55
(1920) 6 Pat LJ 163 : 48 IA 376.
56 (1901) 24 Mad 449.
57 Maung Shwe Goh v. Maung Inn ,

(1916) 44 Cal 542 : 45 IA 15.
58 (1882) 20 Ch. D. 562.
59 Trevelyan v. Trevelyan,
(1885) 53 LT 853 ; Woodall v. Clifton , (1905) 2 Ch. 257; Worthing Corporation v.
Heather , (1906) 2 Ch. 532; Edwards v. Edwards,
(1909) AC 275 .
60 Dungannon (Lord) v. Smith , (1846) 12 Cl. & F. 546 : 8 ER 1523; Jee v. Audley , (1787) 1
Cox. Eq. Cas. 324 : 29 ER 1186.
61 Srimati Bramamayi v. Jages Chandra , (1871) 8 Beng LR 400; Soudaminey v. Jogesh

Chunder ,
(1877) 2 Cal 262 ; Nabin Chandra v. Rajani Chandra ,
(1920) 25 CWN 901 ; Pan Kuer v. Ram Narain ,
AIR 1929 Pat 353 ; Ranganadha v. Bhagirathi , (1900) 29 Mad 112.
62 Kalimuddin v. Reazuddin ,
(1909) 14 CWN 295 ; Haris Paik v. Jahuruddi Gazi ,
(1897) 2 CWN 575 ; Bimal Jati v. Biranja Kuar ,
(1900) 22 All 238 .
(1929) 56 Cal 487 .
64 Nabin Chandra v. Nabab Ali ,

(1900) 5 CWN 343 .
65
(1920) 25 CWN 901 .
66 (1912) 38 Mad 114.
67 Charamudi v. Raghavulu , (1916) 39 Mad 462.

Page 22 of 24
S. 14(A)(A)
68 Munuswami v. Saglaguna , (1926) 49 Mad 387.
69 Dinkarrao v. Narayan , (1922) 47 Bom 191.
70 Allibhai v. Dada Alli ,

(1931) 33 Bom LR 1926 .
71 Harkissondas v. Bai Dhanu , (1926) 50 Bom 566.

(1927) 49 All 527 overruling Balli Singh v.
Raghubar Singh ,
(1923) 45 All 492 ; Gopiram v. Jeotram ,
(1923) 45 All 478 ; Basdeo Rai v. Jhagru Rai ,
(1924) 46 All 333 .
73 Maharaj Rajaramji v. Ramnath ,

AIR 1927 Pat 412 .
74 Matura Subba Rao v. Surendra Nath , (1929) Pat 243 ; Bimal Jati v. Birenja Kuer ,
(1900) 22 All 238 ; Hari Paik v. Jaharuddi Gazi ,
(1897) 2 CWN 575 ; Rajaram v. Krishna , (1893) 16 Mad 301 ; Kalimuddin v.
Reazuddin, (1900) 10 CLJ 626.
75 Ramlinga v. Viru Pakshi , (1883) 7 Bom 538.
76 Kayastha Pathshala v. Bhagwati ,

(1937) 41 CWN 262 P.C.
77 Rajagopalachari v. Venkat Chndamma ,

AIR 1956 Hyd 153 (158) (DB) :
ILR 1956 Hyd 107 .
78 Surendera Vikram Singh v. Munia Kumwar ,

AIR 1944 Oudh 65 : (1943) 19 Luck 320.
79 Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty , AIR 1998
SC 2986 (2990) :
(1998) 6 SCC 267 [
LNIND 1998 SC 690 ].
80 Mohd. Ismail v. Sabir Ali , AIR 1962

SC 1722 (1729) :
(1963) 1 SCR 20 [
LNIND 1962 SC 126 ].
81 Rama Rao v. Thimmappa ,

AIR 1925 Mad 732 [
LNIND 1924 MAD 328 ]; Ganesh Sonar v. Purnendu Narayan Singha ,
Page 23 of 24
S. 14(A)(A)
AIR 1962 Pat 201 (DB); Ali Hossain Mian v. Raj Kumar Haldar ,
AIR 1943 Cal 417 (DB).
82 Pichi Naidu v. Jefferson , (1921) 44 Mad 230.
83 R. Kempraj v. Burton Son and Co ., AIR

1970
SC 1872 (1875) :
(1969) 2 SCC 594 [
LNIND 1969 SC 302 ] ; Ganesh Sonar v. Purendu Narayan Sinha ,
AIR 1962 Pat 201 .
84 Swarma Kumar Ghosh v. Prahlad Chandra ,

AIR 1922 Cal 474 : 26 CWN 874.
85 Anath Nath Maitra v. Kumar Keshah Chandra,

(1910) 14 CWN 601 .
86 Mann, Crossman & Paulin v. Land Registry (Registrar), (1918) 1 Ch. 202.
87 Mathewson v. Rani Kenai Singh ,

(1909) 36 Cal 675 .
88 Walsh v. Secretary of State for India, (1863) 10 HLC 367 ; Ram Baran v. Ram Mohit ,
AIR
1967 SC 744 (747) :
1967 (1) SCR 293 [
LNIND 1966 SC 173 ]; K. Appu Alia Raman v. Mary ,
AIR 1965 Ker 27 [
LNIND 1964 KER 86 ] (AIR
1918 PC 156 :
AIR 1933 All 934 (DB) relied on ); Sheonandan Prasad v. Kanhniyalal ,
AIR 1956 Nag 243 (244) (DB); Ali Hossain Miya v. Raj Kumar Haldar ,
AIR 1943 Cal 417 .
89 Natesa v. Gopalaswami , (1928) 51 Mad 688.
90 Matlub Hasan v. Kalawati ,

AIR 1933 All 934 .
91 K. Appu Alia Raman v. Mary ,

AIR 1965 Ker 27 [
LNIND 1964 KER 86 ] (AIR
1918 PC 156 :
AIR 1933 All 934 (DB) relied on ).
92 Santana Ray v. The Advocate General of Bengal ,

(1921) 48 Cal 124 .
93 Controller, E.D.W.B v. Usha Kumar , AIR

1980 SC 312 (315) :
(1980) 1 SCC 315 [
Page 24 of 24
S. 14(A)(A)
LNIND 1979 SC 466 ] ; Fazil Karim v. Mohamed Karim ,

AIR 1942 Pesh 43 : 201 IC 165.
94 (1872) 9 Beng LR 377.
95 Purna Shashi Bhattacharji v. Kalidhan Rai Chowdhuri ,

(1911) 38 Cal 603 : 38 IA 112.
96 Section in re Fane, Fane v. Fane , (1913) 1 Ch. 404.
1 (1817) 2 Mer. 363 : 35 ER 979.
2 Sewdayal Ramjeedas v. Official Trustee of Bengal ,

(1931) 58 Cal 768 .
3 P. Venkata Subbanna v. D. Chinna Panayya ,

AIR 1989 AP 34 [
LNIND 1987 AP 351 ] (36, 37) :
1988 (1) Andh LT 348 .
4 P. Venkata Subbanna v. D. Chinna Panayya ,

AIR 1989 AP 34 [
LNIND 1987 AP 351 ] (37) :
(1988) (1) Andh LT 348 .
5
Section 18,Transfer of Property Act , IV of 1882.
End of Document
Darashaw Vakil
S. 15.
S. 15. 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 6 [in regard to
those persons only and not in regard to the whole class].
6 Subs. by Act 20 of 1929, Section 9, for "as regards the whole class"
End of Document
S. 15. (A)
Darashaw Vakil
COMMENTS
Legislative Changes. —
Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.7 The section being
a rule of construction was modelled on the rule of construction laid down in Leake v. Robinson 8 and
settled by antecedent decisions. The old section laid down that when there was a transfer to a class of persons with
regard to some of whom the transfer could not take effect owing to the vice of remoteness or as offending the rule
of perpetuity the interest created for the benefit of the class failed as regards the whole class. Leake v. Robinson
was a case of construction of a will making bequests not to individuals but to a class. The Court had to determine
whether the class could take and the Master of the Rolls said, "I must make a new will for the testator, if I split into
portions his general bequest to the class, and say, that because the rule of law forbids his intention from operating
in favour of the whole class, I will make his bequests, what he never intended them to be, viz. , a series of particular
legacies to particular individuals or what he had as little in his contemplation, distinct bequests, in each instance, to
two different classes, namely, to grandchildren living at his death, and to grandchildren born after his death."
By the
Amending Act , 20 of 1929, the words "as regards the whole class" have been substituted by the words
"in regard to those persons only and not in regard to the whole class," thus departing from the rule in Leake v.
Robinson . 9 Prior to the amendment the persons belonging to the class stood or fell together.
The rule that a Hindu could not dispose of his property by gift or sale in favour of an unborn person fettered the free
disposition of property. To remove this disability three Acts were passed, namely, (1) Madras ActI of 1914, (2) the
Hindu Disposition of Property Act , XV of 1916, and (3) MadrasAct VIII of 1921. The Madras ActI of 1914
applies to the Madras Presidency except the town of Madras; the Madras Act VIII of 1921 applies to the town of
Madras; and the
Hindu Disposition of Property Act, 1916 extends to the whole of British India except the province of
Madras.
"Clause 8, Section 15. —

Section 15 of the Transfer of Property Act deals with a gift to a class. It reproduces with slight verbal
alterations the provisions of
Page 2 of 8
S. 15. (A)
Section 102 of the Indian Succession Act , 1865 (now

Section 115 of the Indian Succession Act, 1925 ), which was enacted on the principle of the decision in
Leake v. Robinson . 10
The principle is thus stated by THEOBALD on Wills : —
"Where there is a gift to a class, any members of which may have to be ascertained beyond the limits of perpetuity-for
instance, to the children of a living person who shall attain twenty-five-the whole gift is void."
It will be observed that the rule applies only to gifts to a class, which offend the rule against perpetuities.
Section 102 of the Indian Succession Act , 1865, enacts that if a bequest is made to a class of persons
with regard to some of whom it is inoperative—
(1) by reason of the rule contained in Section 100, as where a limited interest is given to an unborn person, or
(2) by reason of the rule contained in Section 101, being the rule against perpetuity. Such bequest shall be
wholly void.
Prior to certain Special Act s, to be presently noted, Hindu Law did not permit a gift in favour of a person who was
not in existence at the date of the gift, or a bequest in favour of a person who was not in existence at the death of
the testator, 11 on the ground that a person capable of taking must be in existence at the material date. Difficulties,
however, arose where a gift was made to a class of persons of whom some were and some were not in existence
at the date of the gift. The leading case on the subject is that of Rai Bishen Chand v. Musammat Asmaida Koer , 12
wherein a Hindu made a gift of his property to his grandson S who was then in existence "and his (S’s ) brothers
who may be born thereafter." It was argued on the strength of the rule in Leake v. Robinson and the analogy of
Section 102 of the Indian Succession Act , 1865, that as the gift to the unborn grandsons was invalid
according to the Hindu Law, no benefit could be taken even by the grandson who was in existence at the date of
the gift. But this contention was overruled by the Judicial Committee. As to Section 102, it was observed that it did
not apply to the facts of the case because the gift to the unborn grandsons did not fail by reason of the rules
contained in Section 100 or Section 101, but by reason of the personal incapacity of the unborn grandsons to take.
In the course of the judgment their Lordships said :
"It may be that illustration (b) to Section 102 imports into India and English rule of construction which usually defeats the
intention of the testator." and later on :
"But their Lordships conceive that it is not necessary to view this transaction as though it were to be determined by rules of
construction drawn from English Law and applicable to English deeds of gifts."
Page 3 of 8
S. 15. (A)
The rule in Leake v. Robinson was applied by the High Court of Calcutta in several cases, e.g. , 8 Beng LR 400 : 2
Cal 262 : 4 Cal 455; but the tide turned after the decision of the Judicial Committee in Rai Bishen Chand v.
Musammat Asmaida Koer , and the principle of this decision has been followed in a large number of cases in India.
The true scope of the rule in Leake v. Robinson was pointed out by Sir Lawrence Jenkins in Radha Prasad v.
Ranimoni Dasi . 13 Dealing with that rule the learned Judge said at page 199;
"On behalf of Ranimoni it is contended that as some of the class cannot take, the whole gift is void and in support of this
Leake v. Robinson has been cited. But this contention proceeds on a misapplication of this case and a misconception of the
true nature of a gift to a class. In Leake v. Robinson the gift to the class failed because the class could not be ascertained
within the period allowed by the rule against perpetuities. The gift here in no way offends that rule; its only fault is that the
class of legatees includes some who were not in existence at the date of the testator’s death and were thus under a
personal incapacity. And the difference is obvious. In a gift to a class the testator looks to the body as a whole rather than
to the members constituting that body, 14 and the class is in a sense personified. But if that class cannot be ascertained
until a time beyond that permitted by the rule against perpetuity, there is no class to which the gift can legally be made. But
if, as here, the fault is not that a class cannot be ascertained within the period permitted by law, but that certain members of
the class are incapable of taking, different considerations apply."
The whole question of gifts to a class was gone into at considerable length by Wilson, J., in Ramlal v. Kanai Lal Sett
. 15 In that case the learned Judge disposed of the cases, which had been treated in India as authority for
introducing into the construction of Hindu wills the rule in Leake v. Robinson . He showed that the rule was
introduced into India owing to a mistaken analogy and observed as follows:—
"It is no new doctrine that rules established in English Courts for construing English documents are not as such applicable
to transactions between natives of this country. Rule of construction are rules designed to assist in ascertaining intention :
and the applicability of many of such rules depends upon the habits of thought and modes of expression prevalent amongst
those to whose language they are applied. English rules of construction have grown up side by side with a very special law
of property and a very artificial system of conveyancing, and the success of those rules in giving effect to the real intention
of those whose language they are used to interpret, depends not more upon their original fitness for that purpose than upon
the fact that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction
which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus
who view most transactions from a different point, think differently, and speak differently from Englishmen, and who have
never heard of the rules in question."
At the end of the judgment the learned Judge stated that he should be "prepared to hold as the general rule that
where there is gift to a class, some of whom are or may be incapacitated from taking, because not born at the date
of gift or the death of the testator, as the case may be, and where there is no other objection to the gift, it should
ensure for the benefit of those members of the class who are capable of taking."
Page 4 of 8
S. 15. (A)
The judgment of Wilson, J., was referred to by their Lordships of the Privy Council in Bhagvati v. Kali Charan Singh
, 16 at some length, and their Lordships expressed "their entire concurrence in the judgment."
It must also be observed that the rule in Leake v. Robinson, has not escaped criticism even in England. In Bhagvati
v. Kali Charan Singh , 17 Maclean. C.J., said :
"But even in England the rule in Leake v. Robinson, has been followed not without expressions of reluctance. In Leake v.
Robinson itself Sir William Grant said : Perhaps it might have been as well if the Courts had originally held an executory
devise transgressing the allowed limits to be void only for the excess, where that excess could be clearly ascertained." In re
Mosley’s Trusts ,
(1879) 11 Ch D 555 , the Lords Justices similarly expressed their non-concurrence with the
reason of the rule though they were bound to follow it, and in Pearks v. Mosley , 18 which was an appeal from the decision
of the Lord Justice in In re Mosley’s Trusts Lord Selborne, Lord Penzance and Lord Blackburn sufficiently indicated their
inclination against the rule, which, however, was settled in England by a long series of cases and could not be disturbed
except by legislation."
The rule that a Hindu could not dispose of his property by gift or sale in favour of an unborn person fettered the free
disposition of property. To remove this disability three Acts were passed, namely, (1) Madras Act1 of 1914, (2) the
Hindu Disposition of Property Act , XV of 1916, and (3) MadrasAct VIII of 1921. The Madras Act1 of 1914
applies to the Madras Presidency except the Town of Madras : the Madras Act VIII of 1921 applies to the Town of
Madras : and the
Hindu Disposition of Property Act extends to the whole of British India except the province of Madras.
The following is a synopsis of the three Acts.
(1) It is declared by all the three Acts that a transfer inter vivos or disposition by will of any property shall not
be invalid by reason only that the transferee or legatee is an unborn person at the date of the transfer or
the death of the testator, as the case may be. Since gifts and bequests to, unborn persons were declared
to be valid, it became necessary to fix a limit of time within which the gift or bequest should vest. This was
effected by applying to such gifts and bequests the provisions respectively of
Section 14 of the Transfer of Property Act and
Section 101 of the Indian Succession Act , 1865, which contains the rule against
perpetuities.
(2) Further, by the

Hindu Disposition of Property Act , the provisions of
Section 100 of the Indian Succession Act , 1865, were extended to gifts and bequests to
unborn person, but it was not so done by the Madras Act s.
(3) All the three Acts left
Section 102 of the Indian Succession Act , 1865, which relate to gifts and bequests to a
class, severely alone.
One important consequence of the above Acts must be noted here. Prior to the passing of the three Acts if a
bequest was made by a Hindu in a case governed by the Hindu Wills Act, 1870, in favour, say, of his daughter for
Page 5 of 8
S. 15. (A)
her life and after her death to "such of her children who shall attain the age of 21 years", and some of the children
were born before and others after the death of the testator, the bequest, though it failed as to those that were not in
existence at the death of the testator, did not fail in its entirety but enured for the benefit of those who were in
existence at the death of the testator. The reason was that in such a case the bequest to the unborn persons failed
not by reason of the rule against perpetuity contained in
Section 101 of the Indian Succession Act, 1925 but by reason of their personal incapacity to take. But
the bar of personal disability was removed by the three Acts with the result that a bequest to the unborn children in
the case put above would now fail by reason of the rule against perpetuities contained in Section 101, the gift being
to such "children who shall attain the age of 21 years", and the gift would, therefore, fail in regard to the whole
class. Before the passing of the three Acts an unborn person could not take at all, and there would, therefore, be no
scope for the operation of the rule against perpetuities. Since the enactment of the three Acts, an unborn person
can take, but if he is to take on his attaining the age of 21 years, the bequest offends the rule against perpetuities
and it, therefore, fails by reason of the rule contained in Section 101, with the result that Section 102 applies and
renders the bequest void in regard to the whole class. And this is in fact, what happened in Sundara Rajan v.
Natarajan . 19 Thus, while before the three Acts were passed, a bequest to a class of persons some of whom were
not in existence at the death of the testator did not fail in regard to the whole class, these Acts have brought about a
result which, it is conceived, was hardly contemplated when the Acts were passed.
In view of what is stated above, it is proposed to alter

Section 15 of the Transfer of Property Act as follows :
" 15. Transfer to class some of whom come under Sections 13 and 14. —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."
It is also proposed to alter

Section 115 of the Indian Succession Act as follows : —
"115. Bequest to a class some of whom may come under rules in Sections 13 and 114. —If a bequest
is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of Section 113 or
Section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class."
For the reasons stated above, we suggest that the three acts, namely, Madras Act I of 1914,
Hindu Disposition of Property Act , XV of 1916, and Madras Act, VIII of 1921, should be repealed."See
Notes on Clauses . 20
Class. —A gift is said to be to a "class" of persons, when it is to all those who shall come within a
certain category or description defined by a general or collective formula, and who, if they take at all, are to take
one divisible subject in certain proportionate shares. 21 A gift to all the children of testatrix "with the exception of
Page 6 of 8
S. 15. (A)
one, viz .,..." has been held not to be effected by the incomplete exception. 22
The gift to the class is not defeated by the words which follow as the testatrix had not made up her minds whether
she except any of her grandchildren or which of them she would except from the benefit of her bequest. But if the
devise be to one of the sons of J.S. who hath several sons the devise is void. 23
Transfer to take effect on death of lineal descendants. —Such a transfer offends the rule in the
section and is therefore void. The fact that it happened to fall within the legal period is not the test. What one has to
see is whether the events can be postponed to beyond the period of a life or lives in being and 21 years after and
not what in fact happened. A sale deed of a 9-pie odd share minus the 2 bighas specifically numbered stated as
follows :—"Let this be known that the bighas of nankar land which I have excluded from the sale shall remain in my
possession for life and after my death in the possession of my aulad khas without payment of rent or Government
revenue. I or my lineal descendants have no right to transfer the property excluded either permanently or
temporarily. If none of my lineal descendants is alive in my family then the said land shall be declared to be the own
property of the vendee and his heirs and the persons of my family shall have no claim to the same." It was held that
the transfer offended the rule laid down in Section 15. 24
Hindu Disposition of Property Act .—In Section 3, clause (a) for the words and figures "sections 13,
14 and 20" the word and figure "Chapter II" have been substituted so that the present section applies to Hindus.
The Calcutta High Court decided before the amendment that Section 3 (a) did not exclude the application of
Section 15 of the Transfer of Property Act in a case covered by Section 14 of the Act.25
Gift in favour of unborn persons. —It is quite true that no interest could be created in favour of an
unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some
are not, it does not fail in its entirety; it is valid with regard to the persons, who are in existence at the time of the
testator’s death and is invalid as to the rest. 26
Gift to a class. —A gift to a ‘class’ as distinguished from a gift to individuals has a well-recognised
meaning in law. The expression undoubtedly has its origin in English Courts, but it has been adopted in the
Succession Act, and the provisions relating to it are applicable to the Hindus also. As was said by Lord Cottenham :
"A gift to a class implies an intention to benefit those who constitute the class, and to exclude all others; but a gift to
individuals described by their several names and descriptions, though they may together constitute a class implies an
intention to benefit the individuals named. 27 "
Important legal consequences flow from this distinction. Thus, the addition or diminution of members does not affect
a class, the share of each being dependent upon the ultimate number of persons. Again in case of death of a
member of the class, the legacy does not lapse but passes by survivorship to the other members. Ordinarily, a
class gift means gift to a class of persons who are included and comprehended under some general description and
bear a certain relation to the testator. The true test is, however, the intention of the testator and the gift would rank
as a class gift if the testator intended that the donees should take as a class. 28 In the instant case the bequest was
Page 7 of 8
S. 15. (A)
made to testator’s grand sons as a class and all the members of the class were to take per capita. 29
Wills. —Testamentary dispositions are governed by

Section 115 of the Indian Succession Act, 1925 which corresponds with
Section 15 of the Transfer of Property Act . The former section, also based on the rule in Leake v.
Robinson , 30 has been amended on the same lines as the present section by Section 14 (1) (a) of the Transfer of
Property (Amendment) Supplementary Act, 21 of 1929. The rule in Leake v. Robinson 30 was held not to
apply to a Khoja will.
Transfer to take effect on failure of prior interest.
31 [
AIR 1955 Mad 350 [
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248).
8 (1817) 2 Mer. 363 : 35 ER 979.
9 (1817) 2 Mer. 263 : 35 ER 979; See also Ardeshir Baria v. Dadabhoy Baria ,
AIR 1945 Bom 395 (398).
10 (1817) 2 Mer 363.
11 Tagore v. Tagore , (1872) 9 Beng LR 377, 397, 400 : IA Sup Vol. 47.
12
(1884) 11 IA 164 : 6 All 560.
13
(1911) 38 Cal 188 (Affirmed in 41 IA 176).
14 Kingsbury v. Walter,
(1901) AC 187 , 191.
15
(1886) 12 Cal 663 .
16
(1911) 38 IA 54 .
Page 8 of 8
S. 15. (A)
17
(1905) 32 Cal 992 (affirmed in 38 IA 54).
18
(1880) 5 App Cas 714 .
19
(1925) 52 IA 310 .
20 FIRST REPORT ON THE TRANSFER OF PROPERTY AMENDMENT) BILL, 1929.
21 Pearks v. Moseley,
(1880) 5 AC 714 ; Kingsbury v. Walter,
(1901) AC 187 .
22 Illingworth v. Cooke , (1851) 9 Hare. 37 : 68 ER 404.
23 Strode v. Russell , (1707) 2 Vern. 621 : 23 ER 1008.
24 Ram Newaz v. Nankoo ,

AIR 1926 All 283 .
25 Sewdayal v. Official Trustee of Bengal ,

(1931) 58 Cal 768 .
26 Raj Bajrang Bahadur v. Bakhtraj Kuer , AIR

1953 SC 7 (10) :
1953 SCR 232 [
LNIND 1952 SC 66 ].
27 V ide, Barber v. Barber, (3 My. & C. 688).
28 Jiban Krishna v. Jitendra Nath ,

AIR 1949 FC 64 (69) :
1948 FCR 239 : 51 Bom LR 442.
29 Jiban Krishna v. Jitendra Nath ,

AIR 1949 FC 64 (69, 70) :
1948 FCR 239 : 53 CWN (FR) 29.
30 (1817) 2 Mer 363 : 35 ER 979; Advocate General v. Karmali , (1905) 29 Bom 133.
31 Subs. by Act 20 of 1929, Section 10, for the original Sections 16 to 18.
End of Document
Darashaw Vakil
S. 16.
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.]
End of Document
S. 16 (A)
Darashaw Vakil
COMMENTS
Legislative Changes. —This section has been amended by the

Transfer of Property Act , 20 of 1929. Owing to the amendment made therein Section 15 will no longer
provide for the case of a failure of transfer, reference to it has been omitted in Section 16. But a transfer may fail as
to all the members of a class by reason of Sections 13 and 14 as where a gift over is intended to take effect after a
prior gift in favour of a class and the prior gift fails. To make this clear Section 16 has been amended by the addition
of the words "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" before the words "any interest." Special Committee observed:
"As Section 15 of the Act when amended as above will no longer provide for the failure of a transfer, reference to
that section in Section 16 is unnecessary and should be omitted. It is however, necessary to provide for a case
when the transfer may fail as to all the members of the class by reasons of the rules contained in Sections 13 and
14. Such a case would arise where a gift over is intended to take effect after a prior gift in favour of body or a class
of persons but the prior gift fails. In such a case if the prior gift in favour of the class of persons fails by reasons of
the provisions of Sections 13 and 14, the gift over also fails. In order to make this point clear Section 15 should be
amended."
Analogous Law. —This is akin to the provisions of Section

section 116 of the Indian Succession Act, 1925 , which provides as under :
"S. 116. Bequest to take effect on failure of prior bequest. —Where by reason of any of the rules
contained in Sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such
person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure
of such prior bequest is also void.
Illustrations
(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of
25, for his life, and after the decease of such son to B . A and B survive the testator. The bequest of B is
Page 2 of 5
S. 16 (A)
intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which
bequest is void under Section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of
25, and, if no son of A shall attain that age, to B . A and B survive the testator. The bequest to B is
intended to take effect, upon failure of the bequest to such of A ’ s sons as shall first attain the age of 25,
which bequest is void under Section 114. The bequest to B is void."

Sections 10 to
17 ,
T.P. Act have been enacted to encourage free alienation and circulation of property.32 The rule in the
section which is one of construction enacts that if a subsequent limitation depends upon a prior estate which is void
the subsequent limitation must fall together with it. 33 The reason appears to be that the persons entitled under the
subsequent limitation are not intended to take unless and until the prior limitation is exhausted; and as the prior
limitation which is void for remoteness can never come into operation, much less be exercised, it is impossible to
give effect to the intentions of the settlor in favour of the beneficiaries under the subsequent limitation."
Section 16 embodies the English law that a limitation following upon a limitation void for remoteness is itself void
even though it may not of itself transgress the rule against perpetuity. Three conditions must be present before the
said section is attracted:-
(1) There should be an interest created for the benefit of a person or class of persons which must fail by
reason of the rules contained in Sections 13 and 14.
(2) There should be another interest created in the same transaction.

(3) The other interest must intend to take effect after or upon failure of the prior interest. 34
Section 16 embodies the rule that if any gift made in favour of unborn person fails by reason of the rule contained in
Sections 13 and 14, the subsequent interest created in the same transaction also fails. 35
One ‘ A ’ gifted away property to ‘ B ’ for life subject to the condition that the property should pass on the death of B
in the first place absoluletly to any sons or grandsons of ‘ B ’, who might be alive at the time of her death. If such
sons or grandsons were not alive, then the property should pass as life estate to any daughters of ‘ B ’ who might
be alive at the tome of her death. If no daughters or grand daughters were alive, the property should pass
absolutely to ‘ C ’ father of ‘ B ’. It was held that the gift in favour of ‘ C ’ was dependent upon failure of prior interest
in favour of the daughters, the gift in favour of ‘ C ’ must also fail. 36
Where by settlement deed, the father gave suit property to his son and thereafter on the death of the son property
was to go to the grandsons to be born absolutely, the son by relinquishment deed gave his life estate to his father,
the gift made by the grandfather in favour of the unborn sons would not fail. Once the gift to the unborn sons is valid
under Section 13, no one can defeat such interest and the unborn son acquires vested interest on his birth. The life
estate holder cannot defeat the interests of the unborn person by transferring the life estate to a third person. 37
Page 3 of 5
S. 16 (A)
such absolute power in case it is sought to be abused. 38
Perpetuity has been said to be odious in law, destructive, to the common wealth, and an impediment to commerce,
by preventing the wholesome circulation of property. It is in this context that public policy enters into the picture and
discountenances, in equity, such dispositions, the result of which is to take away from the owner the power to
alienate the property or give the owner the power to create future unknown interests. The underlying principle is that
restraints in alienations and the rule against remoteness being the two principles well knit as between each other
ought not to be encouraged by Courts of law, which administer not only law but also equity and good conscience. 39
As pointed out in HALSBURY’S Laws of England , 3rd Edn., Volume 29, although the principle of private ownership
requires that an owner of property shall have power to dispose as he thinks fit, either during life or on death, of his
whole interest in the property he owns, yet public policy requires that the power should not be abused. 40
Where a clause in a trust deed dealt with division of the net income as between the named individuals in existence
and to be born, the clause offended the rule against perpetuities. 41
A gift made to an unborn person should not offend Section 13 or Section 14. 42
The failure contemplated by

Section 27, T.P. Act , and Section 129, Succession Act, is the failure of a valid gift. When the gift is ab
initio void , the subsequent gifts must also fail as provided by
Section 16, T.P. Act , and Section
section 116, Indian Succession Act, 1925 . The principle of English law is also similar, and that is
expressed in the phrase that a limitation following upon a limitation void for remoteness is itself void even though it
may not of itself transgress the rule against perpetuity.43
Invalid power of appointment. —It is settled that any limitation depending or expectant upon a prior
limitation which is void for remoteness is invalid but limitations in default of appointment under a power which is void
for remoteness are not necessarily invalid unless they are themselves obnoxious to the rule against perpetuities. 44
Independent and alternative limitations. —If a subsequent limitation is not dependent upon the other
it might then take place notwithstanding the first was bad. If a limitation is made dependent on the happening of
either of two events one of which is too remote but the other is not it will take effect if the latter event happens. 45
When the ultimate gift is independent of the original gift and is an alternative gift which comes into operation on an
event which can be determined and fixed within the limits of the rule in sections 13 and 14 it is valid.
The invalidity of one alternative will not necessarily defeat the other. 46
The void alternative is disregarded. 47
Benefit. —This covers expenditure which does not strictly come under the heads of "maintenance" or
Page 4 of 5
S. 16 (A)
"education". 48
Indian Succession Act . —Section 116 enacts a similar rule. See the illustrations to
it.
Transfer for benefit of the public. —The restriction in this section does not apply when a transfer of
property is made for the benefit of the public in the advancement of religion, knowledge, commerce, help, safety or
any other object beneficial to mankind. 49
Direction for accumulation.
50 [
AIR 1955 Mad 350 [
AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248).
33 Robinson v. Hardcastle , (1788) 2 Term. Rep. 241 : 100 ER 131; Palmer v. Holford ,
(1828) 4 Russ. 403 : 38 ER 857; Beard v. Westcott , (1822) 5 B. & Ald. 801 : 106 ER 1383; Moneypenny v. Daring ,
(1852) 2 De G.M. & G. 145 : 42 ER 826; Re. Thatcher’s Trust , (1859) 26 Beav. 365 : 53 ER 939. In re Hewett’s
Settlement, Hewett v. Eldridge , (1915) 1 Ch. 810; see notes of Section 14 under the caption "Limitations following a
limitation void."

AIR 1983 AP 139 [
LNIND 1982 AP 274 ] (140) (DB) :
(1982) 2 ALT 492 ; Girijish Dattt v. Data Din ,
AIR 1934 Oudh 35 (40) (FB).

AIR 1983 AP 139 [
LNIND 1982 AP 274 ] (140) (DB) : (1983) 1 APLJ (HC) 22 :
(1982) 2 ALT 492 .
36 Girijish Dattt v. Data Din ,

AIR 1934 Oudh 35 (39, 40) (FB).
Page 5 of 5
S. 16 (A)

AIR 1983 AP 139 [
LNIND 1982 AP 274 ] (141) (DB) : (1983) 1 APLJ (HC) 22.

AIR 1976 Mad 102 [
LNIND 1974 MAD 226 ] (109) (DB).

AIR 1976 Mad 102 [

AIR 1976 Mad 102 [
41 M. Kesava Gounder v. D.C. Rajan,

AIR 1976 Mad 102 [
42 J. Venkata Satyanarayana v. P. Manickyan,

AIR 1983 AP 139 [
LNIND 1982 AP 274 ] (140) (DB) : (1983) 1 APLJ (HC) 22 :
(1982) 2 ALT 492 .
43 Ismail Haji v. Umar Abdulla ,

AIR 1942 Bom 155 (158) : 44 Bom LR 256.
44 Re. Abbott, Peacock v. Frigout , (1893) 1 Ch. 54.
45 Minter v. Wraith , (1842) 13 Sim. 52 : 60 ER 21; Goring v. Howard , (1848) 16 Sim. 395 :
60 ER 926; Watson v. Young , (1885) 28 Ch. D. 436; Re. Davies & Kent’s Contract , (1910) 2 Ch. 35; Re. Davey, Prisk
v. Mitchell , (1915) 1 Ch. 837.
46 Evers v. Challis , (1859) 7 HL Cas. 531 : 11 ER 212.
47 Wilkinson v. South , (1798) 7 Term Rep. 555 : 101 ER 1129.
48 Tattersall v. Peel , in re Peel , (1936) 1 Ch. 161.
49
Section 18, Transfer of Property Act , IV of 1882.
50 Subs. by Act 20 of 1929, Section 10 for the original Sections 16 to 18.
End of Document
Darashaw Vakil
S. 17.
(1) Where the terms of a transfer of property direct that the income arising
from the property shall be accumulated either wholly or in part during a
period longer than—
(a) the life of the transferor, or
(b) a period of eighteen years from the date of transfer,
such direction shall, save as hereinafter provided, be void to the extent to which
the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of
such last-mentioned period the property and the income thereof shall be disposed of as if the period during which
the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of —
(i) the payment of the debts of the transferor or any other person taking any interest
under the transferor; or
(ii) the provision of portions for children or remoter issue of the transferor or of any
person taking any interest under the transfer; or
(iii) the preservation or maintenance of the property transferred, and such direction
may be made accordingly.]
End of Document
S. 17.(2) (A)
Darashaw Vakil
COMMENTS
Legislative Changes. —The present Section 17 is substituted 51 in place of the old Section 18.
According to the old section, accumulation for a period of one year was allowed in certain cases. This worked great
hardship, because even in England a much longer period was allowed, and in certain cases restriction against
accumulation was not applicable at all. According to the new section, therefore, accumulations are allowed for
longer periods than was originally allowed by the old Section 18 and in three cases exceptions are made permitting
accumulations.
Analogous Law. —This is akin to Section

"117. Effect of direction for accumulation. —(1) Where the terms of a will direct that the income arising
from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years
from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period
during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the
property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be
made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of—
(i) the payment of the debts of the testator or any other person taking any interest under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any
interest under the will, or
(iii) the preservation or maintenance of any property bequeathed; and such direction may be made
accordingly."

Sections 10 to
17 of the
Page 2 of 10
S. 17.(2) (A)
T.P. Act have been enacted to encourage free alienation and circulation of property.52
such absolute power in case it is sought to be abused. 53 A direction to accumulate with gift of the accumulations is
not fundamentally bad, it only fails if it offends some independent rule of HIndu law. 54 In a religious endowment a
direction for accumulation cannot he held illegal if such a direction does not benefit the settlor, or the members of
his family at the expense of the idol, nor is its object so unreasonable as to be opposed to public policy. 55
If the direction for accumulation is hit by

Section 17 of the T.P. Act , that in itself would not render the dedication invalid.56
Part of the income. —The direction for accumulation may be of the whole income or part of it.
Wills. —Subject to the three exceptions enumerated, Section

section 117 of the Indian Succession Act , XXXIX of 1925, forbids accumulation. Section 57 makes this
section applicable to Hindus. Prior thereto they were governed by the Hindu Wills Act, which made applicable to
them certain portions of the
Indian Succession Act of 1865.Section 104 of that Act dealt with the effect of directions for accumulation
contained in a will. This was omitted in the Hindu Wills Act and it therefore became necessary for the Courts to
examine whether a direction to accumulate was contrary to the provisions of Hindu Law. As early as 1841, the
Supreme Court of Calcutta thought it competent to a Hindu testator to provide for the accumulation of the surplus
income of his estate within the limits allowed by law. 57 After this followed two other cases 58 which although they
did not decide that a direction to accumulate was good it is clear from them that the practice of directing
accumulation was of long standing and that at the time it was considered that such a direction would have effective
operation. There is nothing illegal in a direction to accumulate unless it be against public policy or for an illegal
object or inconsistent with Hindu Law. 59 A direction to accumulate for the marriage expenses of the testator’s son
60 or till a boy to be adopted attained the age of 18 61 was upheld. A direction to accumulate for 99 years was held
bad 62 but it obviously offended the rule against perpetuities and so a direction which aimed at postponing the
enjoyment of a presently vested interest created by the testator’s will failed for repugnancy. 63 So far the cases
present no difficulty but in Amrito Lall Dutt v. Surnomoni Dasi , 64 Trevelyan, J., said, "I cannot see how a direction
to accumulate can be valid unless there be a present gift to support the direction to accumulate." The other
members of the Bench declined to express an agreement with this view. If, as the decisions above cited imply, it
was within the power of a Hindu testator to direct the accumulation of property then there would seem to be no
difficulty in the way of making a gift of it to a person who under the same gift may become entitled to the original
corpus of the testator’s property. The result of the authorities is that a direction to accumulate is not contrary to
Hindu Law, for so long a time as an absolute vesting of the entire interest can be withheld, or for so long a time as
that during which the corpus of the property can be rendered inalienable or its course or its devolution can be
directed and controlled by a testator. 65 A direction in a will to accumulate the income till the boy to be adopted
attained the age of 16 years, was not a direction to accumulate it for ever and could not be treated as infringing the
law as to perpetuities. 66
A trust for perpetual accumulation is, however, void. A Hindu testator attempted to create a trust for accumulation
for 99 years of the surplus income of his estate in the purchase of zemindaris from time to time and empowered the
trustees to continue the trust after the expiration of the 99 years’ term. The will contained no disposition of the
beneficial interest in the zemindaris so to be purchased. The trust was held void. 67
Page 3 of 10
S. 17.(2) (A)
A trust was held to have failed as creating a perpetuity, where a testator directed the interest to accumulate till the
aggregate sum was Rs. 3 lakhs to be transferred to and divided amongst his sons and the survivors or survivor
together with the descendants of such of them as may be deceased, per stirpes and as soon as the new
accumulation arose in the hands of the trustees the same be again in like manner divided. 68
Mahomedan Law. —A provision for accumulation which will enure solely for the benefit of charitable
purposes will not be bad as offending the rule of perpetuities. The performance of Fateha (distribution of alms to the
poor accompanied with prayers for the welfare of the soul of deceased persons), which so far as it involves the
expenditure of any money consists in feeding the poor, is a valid object of wakf . 69 It is, however, competent for a
Mahomedan to create a trust in perpetuity under the Wakf Act, VI of 1913. A direction for accumulation of income in
wakf is valid.70
Principle of the section. —This section is framed on the lines of English Law now consolidated in
Sections 164-166 of the Law of Property Act 1925 71 which re-enacts with certain alterations, the Accumulation Act
of 1800 known as the Thellusson Act, 72 which is not an enabling but a disabling Act. Prior to the passing of that Act
an accumulation could be directed for any period provided it did not violate the perpetuity rule. The section has
been enacted to restrict accumulation and to prevent settlors from taking full advantage of the liberty which they had
to tie up property for successive lives. It only permits accumulation in respect of two periods, viz., life of the
transferor and an alternative period of 18 years from the date of the transfer. A transferor and an alternative period
of 18 years from the date of the transfer. A transferor may direct accumulation for the life of himself or 18 years from
date of transfer, whichever be the longer of the two. He is not bound to mention only one of the two periods, which
are alternative and not cumulative. It also permits accumulation as to three objects which are specified in sub-
section (2), viz. , (a) payment of debts of the transferor or person taking interest under the transfer, or (b) provisions
for raising portions for children or remoter issue of the transferor or any of the other person taking an interest in the
transfer, or (c) preservation or maintenance of the property transferred.
Void to what extent. —The effect of an invalid provision is to render void accumulation which exceeds
the longer of the two statutory periods. In the event of a direction for accumulation exceeding the longer of the two
statutory limits, the accumulation for the entire period is not void but only so far as it infringes the period allowed by
the statute.
Illustrations
(a) A settlor by deed directs accumulation for 25 years and himself lives for 40 years, from the date of the
transfer. The accumulation for 25 years is good.
(b) A settlor directs accumulation for 25 years and lives for 17 years. The accumulation for 18 years is good.
(c) A transferred stock to trustees with a direction to accumulate the dividends during the joint lives of M . and
N . The direction is good for so much only of the joint lives as expired between the date of the deed and A
.’s death. Re. Rosslyn’s (Lady) Trust , (1848) 16 Sim. 391, 60 E.R. 925.
The property and the income thereof shall be disposed of. —In the event of the accumulation being
directed for a period longer than either of the two permitted limits the accumulation will be allowed till the longer of
the two periods permitted by the section expires and at the determination of such period the property and the
income shall be disposed of as directed on the expiration of the accumulated period.
Page 4 of 10
S. 17.(2) (A)
Illustration.
A settles property in trust for B and directs it to be delivered to the latter with the accumulated income at
the end of 25 years. A dies five years after the settlement, the property shall be delivered to B with the accumulated
income at the end of 18 years from the date of the instrument.
Life estate. —The restrictions as to accumulation imposed by the section relate to all classes of interest
created by deed. If an interest is given to a person for life no accumulation of income of the whole or part which
infringes the rule laid in the section will be permitted. The section does not recognize any accumulation being made
other than for the three objects excepted as also during the two periods permitted. The words "transfer of property"
used in the section are defined by Section 5 to mean an act by which property is conveyed by a living person in
present or in future to one or more other living persons, or to himself, or to himself and one or more living persons.
This definition is wide enough to cover trusts and settlements so that a person obtaining a life estate under a
settlement would be included in Section 17.
At the end of the last mentioned period. —These words refer to the words of the section immediately
preceding them, viz. , "the longer of the aforesaid periods."
Effect of an invalid direction. —In case of an absolute gift a trust for accumulation which exceeds the
prescribed period is rejected as to the excess and the gift takes effect free from such excess. 73 When the primary
gift is not absolute the effect is not to accelerate the interest of those who take subject to such trusts. 74 If a trust for
accumulation has been allowed to continue after the statutory period for accumulation there would be a resulting
trust of the income arising during the forbidden period in favour of the settlor and if he be dead it will revert to his
estate. 75
Exceptions within certain limited periods. —The section deals with restrictions as to accumulation
but provides two periods during which and three objects for which a condition as to accumulation shall be held valid.
With regard to the periods, the section first contemplates the case of a man who settles property otherwise than by
will, in which case he may direct that the rents and profits be accumulated during his life. The settlor cannot direct
an accumulation during his life and some further period. The second of the two periods contemplates an
accumulation which is to commence from the date of the settlement and to last for a period of 18 years thereafter.
No such accumulation is to go on for more than 18 years. The two periods are alternative and not cumulative. The
settlor can select one of the two and not attempt to add one to the other so that the accumulations cannot be
permitted to be endured during both the periods. 76 Therefore when one period has been applied and exhausted a
second period cannot be applied in order to extend the time for accumulation. 77
Exception from statutory restrictions :—
Payment of debt. —
(a) of the transferor, or

(b) any other person taking any interest under the transfer.
Page 5 of 10
S. 17.(2) (A)
The provision of portions. —
(a) For children or remoter issue of the transferor.

(b) For children or remoter issue of any person taking any interest under the transfer.
Preservation or maintenance. —
(a) of the property transferred.
Debts within the exception. —Debts may be secured 78 or unsecured, may be present, future or
contingent, 79 may be due by the transferor or a stranger, 80 but the exception will not include a provision for
accumulating income to recoup capital applied in discharge of a debt. 81 A trust for payment of debts unlimited in
duration is not valid. 82 The provision for payment of debts must be bona fide . 83 After debts are satisfied the
accumulation can only be for the statutory periods and subject to the statutory restrictions.
Portions for children. —These are within the exception to the prohibition against accumulation. A
portion means a sum of money secured to a child out of property, out of the income of which, a provision is made
for the parent. 84 They are not restricted to children in existence but include remoter issue who may be children
coming into existence afterwards. 85 It includes portions directed to be raised by an instrument other than the trust
which contains a clause for accumulation. 86 The law as to accumulation in England prior to its repeal by the Law of
Property Act, 1925, was the Accumulation Act, 1800, known as the Thellusson Act.
Preservation or maintenance of the property transferred. —This exception provides for the
accumulation of income in respect of the maintenance or preservation of the property which forms the subject-
matter of the transfer. This is commonly found in trusts and settlements of immovable properties where the settlor
makes a provision that a certain definite proportion of the income should be allowed to accumulate as a reserve
fund for the purpose of repairing the property should occasion arise. The rule which prevents accumulation beyond
the two permitted limits does not apply to such a case. The provision, however, must be made for repairs, that is,
keeping up the property in good and tenantable condition, commonly known as the sinking fund. A direction to lay
out money for building houses on the land would be within the section whilst improvements which in substance
could be regarded as "maintaining in good habitable repair houses and tenements on the property would be outside
the accumulation clause". 87 The provision must be in respect of the property transferred.
Transfer of property for benefit of the public. —Transfers of property for the benefit of the public in
the advancement of religion, knowledge, common health, safety, or any other object beneficial to mankind are not
within the restrictions imposed by this section. 88 The meaning of public purposes is wider than charitable purposes.
Savings out of income. —Savings out of income are not within the operation of the section and
therefore trustees are not prevented by reason of this section from making accumulations on savings. 89
Page 6 of 10
S. 17.(2) (A)
Presumed intention of the Act. —It must not, however, be supposed that the Act prevents
accumulation during minority or the respective minorities of beneficiaries under the settlement or even successive
accumulations, for instance, accumulation during the life of the transferor and thereafter for the benefit of the child
during minority may be made. Here there are successive accumulations to be made of what practically, if not
theoretically, is the same fund, which accumulations taken together may last a considerable time. These periods
may when added together amount to considerable time yet the periods in question are not really within the vice
against which the Act is directed. A settlement may be made directing accumulation during the life of the transferor
and thereafter a life-interest may be given to a child. In such a case the life of the transferor may lengthen out for
more than 50 years at the end of which a child may be born who may not attain majority till 21 years after the
settlor’s death and therefore accumulation would go on for 71 years. When a benecificiary is of full age a trust for
accumulation operates to postpone his enjoyment, but in the case of an infant his inability to give a receipt would in
any case postpone his enjoyment during his minority. A man may direct a settlement of property upon A. for life and
after his death upon his children on attaining 18 years and if he goes on to provide that during the minority or
respective minorities of his children the income of the property shall be accumulated, it is only a clause in common
form the validity of which has never been doubted. 90 The restrictions apply to a lunatic. 91
Instances where the section does not apply. —The section does not apply to a direction to keep up a
policy on foot, 92 or to property situate in foreign lands to which the Act does not apply, 93 or when funds are settled
by a foreign settlement, 94 or where the settlor is domiciled in a foreign land to which the Act does not apply, though
he settles a fund in the land to which the Act applies 95 or to savings of income.
Law of Property Act, 1925. —Section 164 runs as under :—
(1) No person may by any instrument or otherwise settle or dispose of any property in such manner that the
income thereof shall, save as hereinafter mentioned, be wholly or partially accumulated for any longer
period than one of the following, namely :—
(a) the life of the grantor or settlor; or
(b) a term of 21 years from the death of the grantor, settlor or testator; or
(c) the duration of the minority or respective minorities of any person or persons during or en ventre sa
mere at the death of the grantor, settlor or testator; or
(d) the duration of the minority or respective minorities only of any person or persons who under the
limitations of the instrument directing the accumulations would, for the time being, if of full age, be
entitled to the income directed to be accumulated.
In every case where any accumulation is directed otherwise than as aforesaid, the direction shall (save as
hereinafter mentioned) be void and the income of the property directed to be accumulated shall, so long as the
same is directed to be accumulated contrary to this section, go to and be received by the person or persons who
would have been entitled thereto if such accumulation had not been directed.
(2) This section does not extend to any provision—
(i) for payment of the debts of any grantor, settlor, testator or other person
Page 7 of 10
S. 17.(2) (A)
(ii) for raising portions for—
(a) any child, children or remoter issue of any grantor, settlor or testator; or
(b) any child, children or remoter issue of a person taking any interest under any settlement or other
disposition directing the accumulations or to whom any interest is thereby limited;
(iii) respecting the accumulation of the produce of timber or wood;
and accordingly such provisions may be made as if no statutory restrictions on accumulation of income had been
imposed.
(3) The restrictions imposed by this section apply to instruments made on or after the twenty-eighth day of July
eighteen hundred, but in the case of wills only where the testator was living and was of testamentary capacity after
the end of one year from that date.
In case of direction for excessive accumulation the law is different in India and in England. Suppose A makes a
settlement of his property directing accumulation for 100 years and dies at the end of 19 years after the date of
settlement. In such a case the accumulation would be good for the life of the transferor which is the longer of the
two periods permitted by the section. On death of the settlor, "which would be the end of the last mentioned period,"
the property and the income, according to the section, is to be disposed of as if the 100 years during which the
accumulation had been directed had elapsed. Now under the English Act, Section 164, a direction contrary to the
four periods permitted therein is altogether void. Further, the Indian Act provides that at the end of 19 years the
property and the income shall be disposed of as if the period had elapsed.
Sections 14 and 17. —Except within certain limits specified, both sections aim against tying up in
perpetuity, the one, of lands, and the other, of the income arising therefrom.
Transfer in perpetuity for benefit of public.
96 [
51 See Section 10 of Act 20 of 1929.

Page 8 of 10
S. 17.(2) (A)
52 K. Muniswamy since deceased by L.Rs., v. K. Venkataswamy,

AIR 2001 Kant 246 [
LNIND 2000 KANT 310 ] (248) :
2000 (6) Kant LJ 487 ; Vencatachellum v. Kabalamurthy ,
AIR 1955 Mad 350 [
LNIND 1954 MAD 133 ] (358).

AIR 1976 Mad 102 [
LNIND 1974 MAD 226 ] (109) (DB) : 89 Mad LW 205 : (1976) 1 Mad LJ 56.
54 Watkins v. Admr. GL .,
AIR 1920 Cal 951 (954).
55 Bhabatarini Debi v. Ashmantara Debi,

AIR 1938 Cal 490 (496) : 179 IC 847.
56 Bhabatarini Debi v. Ashmantara Debi ,

AIR 1938 Cal 490 (496) : 179 IC 847.
57 Soorjeemoney Dossi v. Denobundo Mullick, 6 MIA 526.
58 Bissonauth Chunder v. Bamasoondery Dossee , 12 MIA 41; Sonatun Bysack v. Juggut

Soondree , 8 MIA 66.
59 Rajendra Lall v. Raj Coomari Debi ,

(1906) 34 Cal 5 .
60 Nafor Chandra v. Ratan Mala ,

(1910) 15 CWN 66 .
61 Jamnabai v. Dharsey ,
(1902) 4 Bom LR 893 .
62 Kumara Asima v. Kumara Kumara Krishna , (1868) 2 Beng LROC 11.
63 Bramamoyi Dasi v. Joges Chandra , (1871) 8 Beng LR 400; Mokoondo Lall v. Ganesh
Chandra ,
(1875) 1 Cal 104 .
64
(1898) 25 Cal 662 .
65 Watkins v. The Administrator General of Bengal ,

(1920) 47 Cal 88 .
66 Jamnabai v. Dharsey Takersey ,

(1902) 4 Bom LR 893 ; Amrito Lall v. Surnomoyee , 24 Cal 589, followed.
Page 9 of 10
S. 17.(2) (A)
67 Kumari Asima v. Kumara Kumara Krishna , (1869) 2 Beng LROC 11.
68 Krishnaramani v. Ananda Krishna , (1869) 4 Beng LROC 231.
69 Ramanadham v. Vada Levvai , (1911) 34 Mad 12.
70 Ramanandan v. Vava Levvai , AIR

1916 PC 86 (89).
71 15 Geo. V.C. 20.
72 39 and 40 Geo. 111, C. 98.
73 Trickey v. Trickey , (1832) 3 My. & K. 560 : 40 ER 213; Combe v. Hughes , (1865) 34 LJ
Ch. 344 : 46 ER 531.
74 Nettleton v. Stephenson , (1849) 18 LJ Ch. 191 : 64 ER 518; Green v. Goscoyne , (1865)

34 LJ Ch. 268 : 46 ER 1038.
75 Re. Rosslyn’s (Lady) Trust , (1848) 13 Jur. 27 : 60 ER 925.
76 Wilson v. Wilson , (1851) 20 LJ Ch. 365 : 61 ER 111.
77 Jagger v. Jagger , (1883) 25 Ch. D. 729.
78 Bacon v. Proctor , (1822) Turn & R. 31 : 37 ER 1005; Bateman v. Hotchkin , (1847) 10

Beav. 426 : 50 ER 646.
79 Varlo v. Faden , (1859) 6 Jur. N.S. 257 : 45 ER 339; Re. Hurlbatt, Hurlbatt v. Hurlbatt ,
(1910) 2 Ch. 553.
80 Barrington v. Liddell , (1852) 17 Jur. 241 : 42 ER 958.
81 Re. Heathcote, Heathcote v. Trench , (1904) 1 Ch. 826.
82 Bateman v. Hotchkin , (1847) 10 Beav. 426 : 50 ER 646.
83 Mathews v. Keble , (1868) 3 Ch. 691.
84 Jones v. Maggs , (1852) 9 : 68 ER 654.

Page 10 of 10
S. 17.(2) (A)
85 Beech v. St. Vincent (Lord) , (1850) 19 LJ Ch. 130 : 64 ER 658; In re. Stevens, Kilby v.
Betts , (1904) 1 Ch. 322.
86 Bourne v. Buckton , (1851) 21 LJ Ch. 193 : 61 ER 275; Beech v. St. Vincent (Lord) ,
(1850) 19 LJ Ch. 130 : 64 ER 658.
87 Vine v. Raleigh , (1891) 2 Ch. 13; Re. Gardiner, Gardiner v. Smith , (1901) 1 Ch. 697;
Re. Mason, Mason v. Mason , (1891) 3 Ch. 467.
88 See
89 LINDSAY’S Trustees
(1911) S.C. 584 ;
Section 41, Indian Trusts Act, 1882 ; see Tattersall v. Peel, in re. Peel , (1936) 1 Ch. 161.
90 Tench v. Cheese , (1855) 6 De G.M. & G. 453: 43 ER 1309; see

Section 41 of the Indian Trusts Act 11 of 1882; Section 42, Conveyancing and Law of Property Act, 44
and 45 Vic. c. 41.
91 Mathews v. Keble , (1868) 3 Ch. App. 691.
92 Bassil v. Lister , (1851) 9 Hare : 177 : 68 ER 464; Re. Vaughan, Halford v. Close , (1883)
W.N. 89; Vine v. Raleigh , (1891) 2 Ch. 13; Re. Gardiner, Gardiner v. Smith , (1901) 1 Ch. 697.
93 Ellis v. Maxwell , (1849) 12 Beav. 104 : 50 ER 1000.
94 Heywood v. Heywood , (1800) 29 Beav. 9 : 54 ER 527.
95 Haldane v. Eckford,
(1871) 24 LT 934 .
96 Gosavi Shivagar v. Rivett-Carnac , (1889) 13 Bom 463 ; Gosling v. Gosling , (1859) Joh.
265 : 70 ER 423 followed ; Husenbhoy v. Ahmedbhoy , (1901) 26 Bom 319.
End of Document
Darashaw Vakil
S. 18.
The restrictions in Sections 14, 16 and 17 shall not apply in the case of a
transfer of property for the benefit of the public in the advancement of
religion, knowledge, commerce, health, safety or any other object beneficial
to mankind.]
End of Document
S. 18. (A)
Darashaw Vakil
COMMENTS
Legislative Changes. —Mention of Section 15 has been omitted and Section 17 has been added.
Reference to Section 15 has been omitted both from the present section as well as Section 16 in view of the fact
that as amended it no longer provides the case of a failure of a transfer. Section 17 has been added as restrictions
as to accumulation are not to be applicable to charities. It has already been pointed out that in India, although
infringing the rule against perpetuities, Hindu and Mahomedan religious endowments have been upheld. 97
96. Subs. by Act 20 of 1929, Section 10, for the original Sections 16 to 18.
97. Rajendra Lall v. Raj Coomari ,

(1907) 34 Cal 5 ; Ramanadham v. Vada Levvai , (1911) 34 Mad 12 ; Sarojini v. Gnanendra,
(1916) 23 CLJ 241.
Section 18 of the T.P. Act provides that the restrictions in Sections 14, 16 and 17 of the Act shall not
apply in the case of transfer of property for the benefit of the public in the advancement of religion, knowledge,
commerce, health, safety or any other object beneficial to the mankind. The exception so created is in favour of a
transfer under which the public becomes the beneficiary so far as the objects of the transfer are concerned.1
The Special Commitee observed :—
" Section 18. — Section 18 relates to the rule against accumulation and provides how long the income of any property
transferred can be directed to be accumulated so as to prevent its being received and enjoyed by the transferee. This
section and Section
Sections 117 of the Indian Succession Act allow accumulations for a period of one year only in certain
cases. In England the ThellussonAct allowed a much longer period. Moreover, in certain cases, the restriction against
accumulations was not applicable at all. Thus, that Act allowed accumulations for the payment of debts and for providing
funds for children. Accumulations are also allowed in English Law for maintaining property in good repair. 2 By the
Accumulation Act, 1892, and by the Property Act, 1922, some more exceptions were added to the rule enacted in the
Thellusson Act. The whole law is now consolidated in Sections 164-166 of the Property Act, 1925 (15 Geo, V, c. 20).
Page 2 of 10
S. 18. (A)
In their report, the Second Indian Law Commission remarked :
"As to the rule prohibiting accumulation, we all should prefer the more liberal enactments of the Thellusson Act (39 and 40
Geo. III, c. 98), which allow an accumulation for 21 years and do not affect provisions for payment of debts or for raising
portions. But as the rule embodied in the Succession Act, Section 104, has now been in force for 14 years, Mr. Stoges and
Mr. West do not press its alteration." Sir Charles Turner was, however, of opinion that the above exemptions were
frequently required by the circumstances of large zamindari properties.
In cases which were not governed by Section 18 of this Act or Section Sections 104 Indian Succession Act, 1865 (
Section 117 of the Indian Succession Act, 1925 ), the rule followed was that if there was nothing per se illegal
in a direction to accumulate and if such direction was neither so unreasonable in its conditions as to be against public policy
nor given for the purpose of carrying out an illegal object, the direction should be given effect to. 3 In a case quoted in a
footnote in ILR 47 Cal 88 at page 93, Sir Lawrence Jenkins, after reviewing English and Indian authorities on the subject,
remarks—"A direction to accumulate with a gift of the accumulations is not fundamentally bad; it only fails if it offends some
independent rule of Hindu Law....Or the direction to accumulate may be repugnant and so void, as an attempt to deprive a
person of the enjoyment of that which has become his property. But, if, as the decisions I have cited imply, it was within the
power of a Hindu testator to direct the accumulations of property to be added to or made part of his own property, then
there would seem to be no difficulty in the way of his making a gift of it to a person who under the same gift may become
entitled to the original corpus of the testator’s property....What then is the period during which an accumulation can be
validly directed? On principle, I think, it must be for so long a time as the absolute vesting of the entire interest can be
withheld, or for so long a time as that during which the corpus of the property can be rendered inalienable, or its course or
its devolution can be directed and controlled by a testator." Although these decisions show that accumulations may be
directed with certain restrictions, they do not lay down any rule which is definite and which Courts can easily follow. It is
desirable to lay down definitely on the lines of the English Law the periods and the objects for which a condition as to
accumulation should be held valid. It is, however, difficult to adopt the English Law contained in the Property Act, 1925 in its
entirety. Section 164 prescribes four periods during which accumulation can validly be directed, viz .—
(a) the life of the grantor or settlor;
(b) a term of 21 years from the date of the grantor, settlor or testator;
(c) the duration of the minority or respective minorities only of any person or persons living or en ventre sa mere at
the death of the grantor, settlor or testator;
(d) the duration of the minority or respective minorities only of any person or persons who under the limitations of
the instrument directing the accumulations would, for the time being, if of full age, be entitled to the income directed
to be accumulated.
Rules regarding accumulation are closely connected with the rule against perpetuities. 4 The English rule of
perpetuities has a historical origin and has not been wholly adopted in India. According to the English Law the
perpetuity period is the life of any person or of the survivor of any number of persons, who is or who are alive or en
ventre sa mere at the moment when the deed or the will which creates the interest begins to operate, plus a period
Page 3 of 10
S. 18. (A)
of 21 years from the time when such designated person or the survivor of several designated persons dies. 5 The
rules against perpetuities in India so far as a transfer inter vivos is concerned and contained in Sections 13 and 14.
Under Section 14 no transfer of property can operate to create an interest which is to take effect after the lifetime 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. The periods in
Section 164 of the Property Act, 1925, cannot be incorporated in their entirety in the
Transfer of Property Act without affecting the provisions of Sections 13 and 14. We, therefore, consider
it desirable to permit accumulations during the following periods only—
(1) the life of the transferor; or

(2) a period of 18 years thereafter,
This would avoid any difficulty of construction. At the same time we think it desirable to accept certain well
recognised exceptions in law such as those relating to provisions for the payment of debts, raising portions for
children and the repairs to the property transferred. Section 18, therefore, should be amended accordingly." 6
Private charities. —The section does not apply to charities in which the public are not interested.
Resulting trust. —
Section 83 of the Indian Trusts Act (II of 1882) enacts "where a trust is incapable of being executed, or
where the trust is completely executed without exhausting the trust-property, the trustee in the absence of a
direction to the contrary, must hold the trust-property or so much thereof as is unexhausted, for the benefit of the
author of the trust or his legal representative."
Illustration (c) to the section is as follows :—
(c) A conveys lands to B upon trust to sell it and apply one moiety of the proceeds for certain charitable purposes
and the other for the maintenance of the worship of an idol. B sells the land, but the charitable purposes wholly fail
and the maintenance of the worship does not exhaust the second moiety of the proceeds. B holds the first moiety
and the part unapplied of the second moiety for the benefit of A or his legal representative.
Indian Succession Act . —Section 118 of this Act, while controlling bequests to religious or charitable
uses enumerates, by way of illustrations, the following examples of religious or charitable uses: (1) relief of poor
people, (2) maintenance of sick soldiers, (3) erection or support of a hospital, (4) education and preferment of
orphans, (5) support of scholars, (6) erection or support of a school, (7) building and repairs of a bridge, (8) making
of roads, (9) erection or support of a church, (10) repairs of a church, (11) benefit of ministers of religion, (12)
formation or support of a public garden.
Charity. —The purposes mentioned in the section are charitable purposes or objects for the public
benefit. The word "charity" is not defined by the Act but it must be understood in the sense in which lexicographers
use it and not in any way connoting anything which English lawyers understand by that term. The English cases
upon the technical meaning of the word "charity" are no guide nor are we concerned with the preamble of the
Page 4 of 10
S. 18. (A)
English Statute, 43 Eliz., c. 4.
In England, under the Statute 43 Eliz., c. 4, the word "charitable" has a specific meaning much wider than its natural
signification, and the statute may be referred to for the definition of what is "charitable". In order to ascertain what
are charitable purposes, recourse is usually had to the preamble of the Statute 43 Eliz., c. 4, which preamble has
been reproduced in the Mortmain and Charitable Uses Act (1888) (51 and 52 Vict. c. 42), though the latter
enactment otherwise repeals the former. In Commissioners for Special Purposes of Income-tax v. Pemsel , 7 it was
held that the word "charity" is by no means limited to the exact forms of it enumerated in the Statute of Elizabeth
and that in its legal sense it comprises four principal divisions viz :
(1) trust for the relief of poverty;
(2) trust for the advancement of education;
(3) trust for advancement of religion; and

(4) trust for other purposes beneficial to the community not falling under any of the preceding heads.
But in India there is no such statute and it must not be assumed that the word "charitable" in both countries
represents the same category of interests.
The proper approach is to take all the clauses of a document together, to read all the clauses, harmonise them with
each other and to deduce therefrom namely from the whole document what is the paramount intent of the settlor
and what is the object of the charity. 8
"Such charitable or public purposes as may trustee thinks proper." —Such a direction, by the
House of Lords, has been held as void for uncertainty. 9 It is in effect giving someone else power to make a will for
him instead of making a will for himself. The Bombay High Court has held that a gift by will of the residue to "such
charities as the trustees may think deserving" is a good gift, the objects being wholly charitable, 10 following
Moggridge v. Thackwell , 11 in which it was held that where the execution is to be by a trustee with general or some
objects pointed out there, the Court will take the administration of the trust. The Court of the Judicial Commissioner
of Nagpur has held such a bequest void. 12
Christians. —It has been held that a devise for the support of hospitals by an Englishman was a valid
devise and one to which the Court would give effect as being a charitable trust within the scope of 43 Eliz., c. 4. The
Statutes of Mortmain not being applicable to India, the Court will carry out such a trust when the subject is
immovable property just as it would if it had been personal property. 13 In British India a bequest for a purpose which
is charitable within the meaning of that term in English is valid and the
Indian Trusts Act, 1882 , will apply to it. But if it is a devise in the alternative for purposes which are not
charitable though benevolent or philanthropic then it is void.14
The feeding of poor pilgrims at grave advances religion according to tenets of Roman Catholics, and is "for the
benefit of the public" within the meaning of Section 18. 15
Hindus. —Under Hindu Law, even prior to the

Page 5 of 10
S. 18. (A)
Amending Act of 1929, if there was a valid dedication for religious purposes it was not invalid because it
transgressed the rule forbidding the creation of perpetuities. A Hindu idol is capable of being endowed with property
and no express words of gift to such idol in the shape of trust or otherwise are required to create a valid
dedication.16 The establishment of an image and the worship of a Hindu deity are valid charitable objects. 17 A
direction to spend the income in feeding poor indigent Hindus is valid. 18
So also a trust for the performance of ceremonies and giving feast to Brahmins is valid. 19
The establishment and maintenance of a sadavarat , the building of a well and cistern for animals to drink water
from, have been held to be charitable objects. 20
A direction for distribution of an ascertained sum amongst poor relatives, dependents and servants as also a gift to
a University, are valid charitable objects. 21
Where there was a Hindu temple with dharmasala and sadavarat attached to it and the surplus funds not required
for the service of the temple were to be applied for feeding travellers and maintaining a sadavarat , it was held that
the intention of the founder was to devote the property to public religious and charitable purposes. 22
To feed the really needy and poor, to spend for the annual sradhas or anniversaries of the father, mother and
grandfather, the feeding of Brahmins, expenditure for marriage of daughters of poor and of the poor Brahmins and
towards the education of the sons of the poor as the trustee shall think fit, are valid charitable purposes. 23
Giving of alms for the testator’s spiritual benefit is void for uncertainty. 24
Trust for the performance of Durga and Lakshmi Pujahs are valid. 25
Gifts to hospitals are valid. The institution to be benefited need not be a corporate body. It is sufficient if there be
some responsible authority charged with the general administration of the funds of the institution. 26 A bequest for
feeding Brahmins on the day following the night of Sivratri is valid. 27 Offerings by followers of the Radha Swami
religion to the spiritual head do not constitute a charitable trust. 28
Mahomedans. —Transfers by a Mahomedan for the benefit of the public are governed by the
Mussalman Wakf Validating Act , VI of 1913, made to operate retrospectively byAct 32 of 1930. The
application of the rule in this section is excluded by Section 2 of the present Act. As wakfs , transfers for the
following purposes have been held valid religious and charitable purposes or objects.— Fateha and kadam sharif ,
29 the celebration of the birth of Ali Murtaza, the expenses of keeping tazias in the month of Muharram, the
anniversaries of the deaths of members of the waqif’s family and the expenses for repairs of imambara , 30 the
expenses of the annual fateha of the waqif , of her husband and members of her family, the annual expenses of
burning lamps in a mosque and the salary of hafiz and readers of Koran. 31
Page 6 of 10
S. 18. (A)
A trust for the benefit of the poor for aiding pilgrimages and marriages, and for the support of wells and temples are
charitable objects. 32
Dedication for the upkeep of and other ceremonies at a private tomb is not valid, it being neither religious nor
charitable, 33 unless it has relation to shrines and tombs of great religious teachers and saints, 34 nor is the reciting
of Koran over the tomb of a private person. 35
Parsis. —Trusts and bequests of lands or money—for the purpose of devoting the incomes thereof in
perpetuity for the purpose of performing muktad, baj, yejushni and other like ceremonies, are valid "charitable"
bequests. 36
Trust for ‘masses’. —In England these trusts were at one time held bad under the effect given to the
Statute of Edward VI and on general grounds of public policy as being superstitious. The question whether or not
this was part of the law brought by the English into India was answered in the negative as to Hindus in Advocate
General v. Vishvanath , 37 as regards Christians in Andrews v. Joakim , 38 and as to Armenians in Colgan v.
Administrator General of Madras. 39
A recent decision of the English Court has held that a gift for the saying of masses is charitable as being for the
advancement of religion, (1) because it enables a ritual act to be performed which is the central act of religion of a
large proportion of Christian people, and (2) because it assists in the endowment of priests whose duty it is to
perform the act. 40
Idol, not moveable property. —There may be purposes for which an idol, considered with reference to
the material substance of which it is composed, may be regarded as moveable property. But an image considered
as a legal or spiritual entity cannot properly be said to be the subject of gift. 41
Dharam. —A gift to dharam is void. 42 The objects which can be considered to be meant by that word
are too vague and uncertain for the administration of them to be under any control. 43 The law on this point is the
same in the mofussil as in the Presidency towns. 44
Kherat. —The word kherat is used by Mahomedans as dharam is used by Hindus as expressing alms
or charity. Cases are met with where Mahomedans have used the words dharam and kherat together, which may
be construed as a composite phrase. But these words are synonyms, one derived from the Sanskrit and the other
from the Arabic, the former probably due to Hindu ancestry, the latter to Islamic religion. It cannot, however, be said
that the vagueness of the word dharam is clarified by its conjunction with the more definite term kherat ; for it might
with equal justice be said that the definiteness of the word kherat is obscured by the word dharam nor is it easy to
concede that kherat is a definite term. A bequest so made was considered void for uncertainty by the Bombay High
Court (Crump, J.,) where the parties were Borahs, 45 but a bequest for dharma-kriya was held valid by Mirza, J.,
where the parties were Cutchi Memons. 46
Limitation over of property from one charity to another. —A contingent limitation over of property
from one charity to another is not within the principles of the rule against perpetuities because a valid perpetuity is
created by the first gift and so the gift over on an event beyond the limit of perpetuities cannot tend to make the
Page 7 of 10
S. 18. (A)
property more inalienable. That is to say, a gift to a charity for charitable purposes with a gift over on an event which
may be beyond ordinary limits of perpetuities by another charity is not illegal. 47 The exception to the rule of
perpetuities in favour of a charitable bequest as laid down in Christ’s Hospital v. Grainger 48 not having
been embodied in Section

Sections 114 of the Indian Succession Act , the Calcutta High Court did not apply that decision to this
country.49 That case was of a will. There is nothing in the
Indian Succession Act, 1925 , corresponding to
Section 18 of the Transfer of Property Act and it is submitted that a case under this section would be
decided on the lines of Christ’s Hospital v. Grainger .
Cy-prs doctrine. —The preponderance of authority is for the proposition that this doctrine is applicable
in wills and not in deeds. Between the applicability of the cy-prs doctrine and the failure of a charitable trust for the
non-satisfaction of a condition precedent, the distinction is that in the former there is the breakdown of the
machinery required to carry out a validly created charitable trust and in the latter there is the initial failure of the
conditions essential to bring the trust into existence. 50
Language and religion. —A Division Bench of the Madras High Court, while differing as to whether a
trust for the spread of the Sanskrit language was void or not, held that a trust for the spread of the Hindu religion
was void for uncertainty of its object. 51
Superstitious uses. —The English Law relating to superstitious uses does not apply in India. 52
Vested interest.
97 Pulsford v. Hunter , (1792) 3 Bro. C.C. 416 : 29 ER 618; Re. Martin, Tuke v. Gilbert,
(1887) 57 LT 471 ; Re. Wintle, Tucker v. Wintle , (1896) 2 Ch. 711.
1 Dalogovinda Sethi v. Kanika Museum ,

AIR 1989 Ori 60 [
LNIND 1988 ORI 96 ] (63, 64)
2
(1891) 2 Ch 13 .
3 ILR 34 Cal 5.
4 CHESHIRE on Modern Real Property , p. 482; FEARNE on Contingent Remainders , p. 537.
5 Cadell v. Palmer , (1833) 1 Cl. and F. 372.
6 See REPORT OF THE SELECT COMMITTEE, FIRST REPORT ON THE TRANSFER OF PROPERTY
(AMENDMENT) BILL, 1929.
Page 8 of 10
S. 18. (A)
7
(1891) AC 531 .
8 Padmavati v. Narsill ,
AIR 1956 Bom 81 [
LNIND 1954 BOM 75 ] (85).
9 Grimond v. Grimond,
(1905) AC 124 ; Blair v. Duncan,
(1902) AC 37 .
10 Smith v. Massey , (1906) 30 Bom 500.
11 (1803) 7 Ves. 36 : 32 ER 15.
12 Elkins v. Cullen , (1917) 13 NLR 51.
13 Broughton v. Mercer , (1875) 14 Beng LR 442.
14 Elkins v. Cullen , (1917) 13 NLR 51.
15 R.M.S. Firm v. Muthuswami Odayar ,

AIR 1941 Mad 188 [
LNIND 1940 MAD 33 ] (191, 192) (DB) :
1940 (2) MLJ 803 [
LNIND 1940 MAD 33 ] :
1940 MWN 1180 .
16 Bhuggobutty v. Gooroo Prosonno ,

(1898) 25 Cal 112 ; Manohar v. Lakhmiram , (1887) 12 Bom 247.
17 Bhupati v. Ram Lal ,

(1910) 37 Cal 128 .
18 Rajendra Lall v. Raj Coomari ,

(1907) 34 Cal 5 .
19 Lakshmishankar v. Vaijinath , (1882) 6 Bom 24.
20 Jamnabai v. Khimji Vullubdass , (1890) 14 Bom 1.
21 Manorama v. Kali Charan ,

(1904) 31 Cal 166 .
22 Jugalkishore v. Lakshmandas , (1899) 23 Bom 659.

Page 9 of 10
S. 18. (A)
23 Dwarkanath v. Burroda ,
(1879) 4 Cal 443 .
24 Joseph Ezekiel v. Aaron Hye , (1870) 5 Beng LR 433.
25 Prafulla Chunder Mullick v. Jogendra Nath Sreemany,

(1905) 9 CWN 528 .
26 Fanindra Kumar v. The Administrator General of Bengal,

(1901) 6 CWN 321 .
27 Kedar Nath v. Atul Krishna ,

(1908) 12 CWN 1083 .
28 Chhotabhai v. Jnan Chandra ,

(1935) 57 All 330 .
29 Phul Chand v. Akbar Yar Khan ,

(1897) 19 All 211 ; Ramanandan v. Vada Levvai , (1917) 40 Mad 116 : 44 IA 21.
30 Biba Jan v. Kalb Husain ,

(1909) 31 All 136 .
31 Mazhar Husain Khan v. Abdul Hadi Khan,

(1911) 33 All 400 .
32 Fatmabibi v. The Advocate General of Bombay, (1882) 6 Bom 42.
33 Kaleloola v. Nuseerudeen , (1895) 18 Mad 201 ; Zooleka Bibi v. Syed Zynul ,

(1904) 6 Bom LR 1058 .
34 Zooleka Bibi v. Syed Zynul ,

(1904) 6 Bom LR 1058 ; Kaleloola v. Nuseerudeen , (1895) 18 Mad 201.
35 Kunhamuthy v. Ahmad , (1935) 58 Mad 204.
36 Jamshedji v. Soonabai , (1909) 33 Bom 122 ; Limji Nowroji v. Bapooji Ruttonji , (1887) 11
Bom 441, dissented from.
37 (1870) 1 Bom HCR. App. p. 9.
38 (1869) 2 Beng LR 148.
39 (1892) 15 Mad 424.

Page 10 of 10
S. 18. (A)
40 In re Caus, Lindeboom v. Camille , (1934) 1 Ch. 162; West v. Shuttleworth , (1835) 2 Myl.
& K. 684 : 39 ER 1106 and Heath v. Chapman , (1854) 2 Drew 417 : 61 ER 781 dissented from.
41 Pradyumna Kumar v. Pramatha Nath ,

AIR 1923 Cal 708 .
42 Morarji v. Nenbai , (1893) 17 Bom 351 ; Devshankar v. Motiram , (1894) 18 Bom 136 ;
Runchordas v. Parvatibai , (1899) 23 Bom 725 : 26 IA 71; Parthasarathy v. Thiruvengada , (1907) 30 Mad 340.
43 Runchordas v. Parvatibai , (1899) 23 Bom 725 : 26 IA 71; Morice v. The Bishop of

Durham , (1805) 10 Ves. 522, followed 32 ER 947.
44 Devshankar v. Motiram , (1894) 18 Bom 135.
45 Mariambai v. Fatmabai ,
(1929) 31 Bom LR 135 .
46 Abdulsakur v. Abubakkar ,
(1930) 32 Bom LR 215 .
47 Christ’s Hospital v. Grainger , 1 Mac. & G. 460 : 41 ER 1343; In re Tyler, Tyler v. Tyler ,
(1891) 3 Ch. 253.
48 1 Mac. & G. 460 : 41 ER 1343.
49 Jones v. The Administrator General of Bengal ,

(1919) 46 Cal 485 .
50 Santana Ray v. The Advocate General of Bengal ,

(1921) 48 Cal 124 .
51 Venkatanarasimha v. Subba Rao , (1923) 46 Mad 300.
52 Khusalchand v. Mahadevgiri , (1875) 12 B.HC 214; The Advocate General v. Vishvanath

, (1870) 1 Bom HC App. 9; Joseph Ezekiel v. Aaron Hye , (1870) 5 Beng LR 433.
End of Document
Darashaw Vakil
S. 19.
Where, on a transfer of property, an interest therein is created in favour of a
person without specifying the time when it is to take effect, or in terms
specifying that it is to take effect forthwith, or on the happening of an event
which must happen, such interest is vested, unless a contrary intention
appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains
possession.
Explanation. — An
intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment
thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person,
or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or
from a provision that if a particular event shall happen the interest shall pass to another person.
End of Document
S. 19.(A)
Darashaw Vakil
COMMENTS
Scope. —On a transfer of property—an interest is said to be vested when
(1) no time is specified as to when it is to take effect, or
(2) according to the terms thereof it is to take effect immediately, or

(3) it is to take effect on the happening of an event which must happen.
Death of transferee before possession does not divest a vested interest.
There is no presumption against a vested interest by reason of
(a) the enjoyment having been postponed to a future date, or
(b) a prior interest is given or reserved to another in the same property, or
(c) income is to be accumulated till arrival of the date of enjoyment, or

(d) the interest is to pass to another on the happening of a particular event.
Sections 19 to 34 relate to rules of construction.
The law is always in favour of construction which vests the estate absolutely and indefeasibly at the earliest
moment. 53
According to the section, unless a contrary intention appears from the terms of the transfer, an interest therein vests
immediately when created in favour of a person:
(a) without specifying the time when it is to take effect, or

Page 2 of 14
S. 19.(A)
(b) in terms specifying that it is to take effect forthwith, or

(c) on the happening of an event which must happen.
If a bequest is to a person for life and after his death to his children the vesting is not postponed to the death of the
life tenant. 54
In case of doubt the Court leans to that construction which leads to an early vesting. 55
An estate or interest may vest either in possession or in interest. When it gives a present right to immediate
enjoyment or possession it is said to be vested in possession. It is said to be vested in interest when it gives a
present right to future possession or enjoyment.
Illustration
A trust is made for A for life and after his death to B absolutely. A ’s estate is vested in possession and B
’s in interest. If B dies before obtaining possession the estate passes to his representatives. The word "vested"
prima facie means vested in interest, but by force of a context it may have a different meaning such as "vested in
possession" or "indefeasibly vested". 56 It means "come into possession" and not "accrue in point of interest". 57
Words of futurity when introduced in a deed of transfer raise the question whether the enjoyment and possession of
the estate are deferred or merely the vesting is postponed.
The words "to hold for the use and benefit of" the son or sons strongly support an immediate vesting of the interest.
The words "to be made over" are more consistent with the postponement of the vesting in possession of that which
is vested in interest, than with the postponement of the vesting in interest itself as is implied by such words as "to
be transferred". 58 As to the words "on his attaining" and "when" or "if" he shall attain "twenty-three" or "at twenty-
three" there is no difference. All equally import contingency when they are contained in the gift itself and are
uncontrolled by other portions of the deed. 59 The expression "after his death" is taken to indicate merely the time
when the gift over becomes reduced to possession and not the time when the right to such possession vests. But if
the bequest is to such children as may survive the testator or be living at is death, then the condition of surviving or
being alive on his death would be a condition precedent to the vesting and no child that does not survive will
acquire a vested interest. 60 In considering the vesting of estate under a bequest the Judicial Committee held that
the vesting of the estate in the son was not suspended by the direction that the estate should remain in the hands of
the executor, who should "make over the share" of each on his attaining twenty-one years; those words merely
pointed to the possession and enjoyment of the shares, which had already been vested. 61
Sale of property by life estate holder and her sons in her life time without the knowledge of executor of property and
without permission of the Court granting probate is improper. 62
Where by the settlement deed the property was settled in favour of the plaintiff, in the event of her death, the
property was to go her unborn children, the interest created in the plaintiff was vested and not contingent interest
Page 3 of 14
S. 19.(A)
and that of the unborn children contingent interest. Under the deed of settlement an interest was crated in favour of
the children of the plaintiff, the interest was to take effect on the happening of a specified uncertain event, namely
the death of the plaintiff, till the death of the plaintiff, the interest of the children would be contingent, nothing short
of spes successionis . 63
The plaintiff limited owner holding the life estate was given the right to administer the estate after she attained
majority. Administration of the estate would normally include leasing of the property except where a specific
condition is prescribed precluding the administrator from leasing the property. There was no such limiting or
restrictive condition prohibiting the plaintiff in the course of her management from leasing the land. The plaintiff as
beneficiary after attaining majority took over the administration and as part of the administration leased the land, the
person so inducted by her on the land would be lawfully cultivating the land belonging to the plaintiff and being not
in any of the excepted categories would be deemed to be a tenant. 64
Partition deed. —Where in a partition deed, the father is given life interest in his share with full rights to
transfer the property in his life time but the son and daughters are given absolute right/interest in the property in
case the father has not disposed of his interest during his life time, the interest of the son and daughters is vested
interest and not contingent interest. The deed has to be read a whole together with the intention of the party. The
sons and daughters had vested interest and not contingent as the death of their father was certain to happen, they
would become entitled to actual possession of the property. 65
Contingent and vested interest. —An interest is said to be vested interest when there is immediate
right or present enjoyment for future enjoyment. An interest is said to be contingent if the right of enjoyment is made
dependent upon some event or condition which may not happen. On the happening of the event or condition a
contingent interest becomes a vested interest. 66 One of the features of a contingent interest is that if a person dies
before the contingency disappears and before the vesting occurs, the heirs of such a person do not get the benefit
of the gift. 67 Where an estate, even if equitable estate is to vest on the happening of a certain condition, strict
compliance/fulfillment of the condition is necessary before the estate could be said to have vested. 68
The determination of the question as to whether an interest created by such a deed is vested or contingent has to
be guided generally by the principles recognised under
Sections 19 and
21 of the
Transfer of Property Act, 1882 , and
Sections 119 and
120 of the
Indian Succession Act, 1925 .69 Whether an interest is vested or contingent interest, the Court while in
construing a document has to have a bias in favour of vested interest, unless the intention to the contrary is definite
and very clear. 70
In the instant case, the Court noticed that the

Transfer of Property Act, 1882 as well as the
Indian Succession Act, 1925 recognise this difference (between "vested" interest and a "contingent"
interest).71
Where a father executed a trust in respect of his trust properties, his son X was appointed as sole trustee, on the
death of the settlor and discharge of all debts, some of the properties mentioned in the deed were to go X and his
brother B , the interest acquired by X and Y was held vested and not contingent interest. 72
Page 4 of 14
S. 19.(A)
Where certain properties between brothers and sisters were divided, brothers gifted their shares to their children,
however, retained the right to retain possession of the properties during their lift time, the case was held covered by
Section 19, as the happening of the event was certain, the children had obtained vested interest in the gifted
property. 73
Right of maintenance — Vested interest. —Right of maintenance under a maintenance deed is

vested interest. 74
Where the testator in a Will provided that his wife shall enjoy all the properties movable and immovable till his death
and on the death of the wife, his daughter shall inherit the property, though the words " in lieu of maintenance were
not used in the Will, it was held that the testator’s wife was given property in lieu of maintenance and as such on the
enforcement of
Hindu Succession Act, 1956 , she became the absolute owner of the property. Since the wife’s right got
enlarged into an absolute estate and she became an absolute owner of the property,
Section 19 of the T.P. Act , was not applicable.75
Statutory vesting. —The word ‘vest’ is used specially to denote a transfer under a statute. Notable
instances are—under the Presidency Towns Insolvency Act, III of 1909, 76 on a person being adjudicated insolvent
his property vests in the Official Assignee— so also under various provisions of Trustees Act, XXVII of 1866, the
Trustees and Mortgagees Powers Act, XXVIII of 1866, the
Indian Succession Act, 1925 ,77 the
Code of Civil Procedure, 1908 , in case of trustees of public charities78 and sale of moveable property by
the Court. 79
Limitation Act, 1963 .—The words "vested in trust" are used in Section Sections 10 of the Indian
Limitation Act . It has been held while transfer of proprietary rights is not intended, mere transference of
management or control is not enough to satisfy the requirements of "vesting" as contemplated by this section; a
right to call for a transfer and to possess the property for the purpose of the trust and also the power to dispose of it
according to the terms of the trust without reference to the owner are the essentials that constitute the "vesting".80
Indian Succession Act, 1925 . —Section 119 is the vesting section as to wills. There are a number of
illustrations to this section, but it is doubtful how far, if at all, it is permissible to refer to illustrations in one statute for
the purpose of construing another in similar terms.
"Contrary intention". —The explanation to the section illustrates what is not a contrary intention. There
is no definition in the Act of "convey" or of "property" but it is to be noticed that a transfer under Section 5 of the Act
means a conveyance of property not only in the present but also in future. 81 The explanation to the section gives
examples of vested interests which import a contingency.
Transferee’s representatives. —On death of a transferee whose interest in property has vested, his
representatives are entitled to the same. This is exemplified by illustration (i) to Section
Sections 119 of the Indian Succession Act, 1925 . And according to the present section a vested interest
Page 5 of 14
S. 19.(A)
is not defeated by the death of the transferee before he obtains possession.
Enjoyment of interest postponed. —The explanation to the section deals with certain rules of
presumption, one of them being that an inference should not be drawn against the vesting of interest by reason of a
provision in the instrument whereby the enjoyment of the interest is deferred. A similar provision is added in the
explanation to Section
Sections 119 of the Indian Succession Act, 1925 , which is explained by illustration (ii) as follows :—
A bequeaths to B Rs. 100 to be paid to him upon his attaining the age of 18 years. Upon A ’s death the
legacy becomes vested in B .
A testator died in 1896 bequeathing his property, with the exception of an annuity to his wife and some other
specific legacies, to his only son who had attained his majority at the date of his father’s death, subject to restriction
that he should not be allowed to enjoy it until the end of the year 1900. The Court held that the son took an
immediate vested interest in the estate of the testator and the condition restricting his immediate enjoyment was
repugnant and thus invalid. 82 Reference was made to Hanson v. Graham 83 in which case the subject
of immediate gifts postponing enjoyment and gifts postponed to or contingent on the donee attaining a certain age
has been discussed.
The rule under which the Courts will set aside or disregard conditions or restrictions as repugnant to a previous gift
is well recognized in England and is thus stated by Lindley, L.J., in the case of Harbin v. Masterman . 84 Now
notwithstanding the general principle that a donee or legatee can only take what is given him on the terms on which
it is given yet by our law there is a remarkable exception to this general principle. Conditions which are repugnant to
the estate to which they are annexed are absolutely void and may consequently be disregarded. This doctrine
underlines the rule laid down in Saunders v. Vautier 85 and enunciated with great clearness by Vice-
Chancellor Wood in Gosling v. Gosling 86 and in Weatherall v. Thornbugh 87 by Lord Justice
James. The Judicial Committee of the Privy Council in Harris v. Brown 88 held that the vesting was not
suspended by the direction that the estate should remain with the executor who should "make over the share" of
each of the sons on his attaining twenty-one years, and that these words merely pointed to the possession and
enjoyment of the shares which had already vested. It must be remembered that it is within a comparatively recent
period that Indian settlors and testators have adopted English modes of creating interests in their estates. The only
safe course is to give to the words their plain ordinary meaning. The postponement of an adopted son’s estate
during the widow’s life by agreement does not make the son’s interest contingent, but he has a vested interest
which he is entitled to deal with during the life of the adoptive mother. 89 A settlor after making provision for his
widow for life directed the trustee to hold the rest of the trust estate for the use and benefit of the son or sons of the
settlor "to be made over" to such son or sons on the attainment by him or them of the age of twenty-one years. It
was held that the gift to the sons vested on the death of the tenant for life subject to a possibility of being divested in
the case of sons who should fail to attain the age of twenty-one, and therefore, the gift was good. 90
A Portuguese inhabitant of Bombay by his Will of 1866 devised his estate in trust to pay the dividends for the
maintenance and education of his children until each of his sons should attain the age of twenty-one when his or
their share was to be paid unto him or them. He further directed that whatever might remain of the moneys collected
by the executors after all the sons had attained twenty-one and the daughters had married, should be distributed in
equal parts between the sons and daughters that might be surviving at the time and in case any of his children
should happen to die under twentyone his or her share should be given to the survivors or survivor of them. It was
held that the sons took a vested interest on attaining the age of twenty-one and that the provision which related to
distribution did not divest the shares so vested. 91
Page 6 of 14
S. 19.(A)
A prior interest in the same property is given or reserved to some other person. —The second
rule in the explanation is that vesting is not delayed by reason of the fact that a prior interest precedes. This is
illustrated by illustration (iii) of Section
Sections 119 of the Indian Succession Act, 1925 .
A fund is bequeathed to A for life and after his death to B . On the testator’s death the legacy to B becomes vested
in interest in B .
A Hindu testator after giving his wife and his mother possession of his properties, directed that on their death the
sons of his sisters should hold the properties in possession and enjoyment. It was held by the Privy Council that the
sons of the testator’s sisters took a vested interest in their respective shares at the testator’s death though their
possession and enjoyment were postponed until the deaths of the mother and widow. 92 The fact that the estate
was subject to partial trusts or charges did not delay vesting. 93
Direction to accumulate the income until time of enjoyment. —A gift of the interim income does not
lead to the inference that there was an intention to delay the vesting. Where a legacy is directed to be paid at a
particular age and the whole income is given in the meantime, that gives a present vested interest. 94 There is not
only a gift of the intermediate interest indicative of an intention to make an immediate gift, because, for the purpose
of the interest, there must be an immediate separation of the legacy from the bulk of the estate; but a positive
direction to separate legacy from the estate, and to hold it upon trust for the legatee when he shall attain twenty-
five. 95 The practice of the English Courts in disregarding direction for postponement of the enjoyment after coming
of age of the devisee is followed in this country, and consequently, where a testator by his will directed that out of
the net income of the estate he should spend Rs. 500 every year for maintenance of each of his two disciples and
when one of them, J , should attain the age of 30 years should give to him the net residue of his property or in case
of his decease to the other disciple S , it was held that the income of the property including all income accrued since
majority must be paid to J , the Official Trustee retaining the corpus until J should attain the age of thirty years. 96
This is so under Section

Sections 119 of the Indian Succession Act, 1925 , as per illustration (v).A bequeaths the whole of his
property to B upon trust to pay certain debts out of the income and then to make over the fund to C . At A’s death
the gift to C becomes vested in interest in him.
Gift of interim maintenance. —Maintenance is not equivalent to "interest" for the purpose of vesting a
legacy. 97
Vested subject to being divested. —These words mean that the estate when vested is defeasible on
the happening of a particular event. Divesting clauses receive a strict construction, as the law does not favour
divesting. The condition for divesting and the intention to divest should be clearly made out. 98 The fourth rule in the
explanation that where there is a provision that on the happening of a particular event, the interest shall pass to
another person, does not import a postponement of vesting. Similar provision is made in explanation to Section
Sections 119 of the Indian Succession Act, 1925 , of which illustration (vi) affords an example. A testator
gave his residuary estate to trustees upon trust to invest and divide the same among the children of his brothersA
and B , the share of each son to be paid on his attaining the age of twenty-one and the share of the daughter on
attaining that age or previously marrying with benefit of survivorship between and among all the said sons and
daughters. The testator left surviving his two brothers and a sister C . A and B both died before the eldest of the
testator’s nephews or nieces attained twenty-one or married. In a suit by the widow and executrix of A for a
declaration that the bequests were void, it was held that the legatees took vested interests, subject to being
Page 7 of 14
S. 19.(A)
divested on death before the contingencies in the will happened, and that the period of distribution alone was
postponed and the bequests were valid. 1 A bequest to A for life and afterwards to B but if he should be then dead
to C and D in equal shares or the whole to survivor of them. B died in the lifetime of the tenant for life as did also C
and D . Held the gift to C and D was a vested interest in them as tenants in common subject to be divested if one
only should survive the tenant for life. 2 And where in a compromise of a suit between two brothers for possession
of immovable property it was provided that certain property should he held by one brother for his life and afterwards
should go to the second brother if he survives the first the second brother was held to have taken a vested interest.
3 So where a settlor made a trust for himself and his family and after his death, directed the trustee, after making
provision for a monthly payment of Rs. 30 to the widow for life, to hold the rest of the trust estate "for the use and
benefit of the son or sons" of the settlor, "to be made over" to such son or sons on the attainment by him or them of
the age of twenty-one years, it was held the gift to the sons vested on the death of the tenant for life, subject to a
possibility of being divested in the case of sons who should fail to attain the age of twenty-one and, therefore, the
gift was good. 4
Mahomedan Law. —The application of this section to Mahomedans is excepted. 5 Gifts of future and
limited estates resembling what we call vested remainders 6 are not recognized by the Sunni Mahomedan Law, but
they are so recognized by the Shia Law. 7 The latter point is not, however, free from doubt. 8 A mere spes
successionis is unknown and not recognized. 9
Life estate and vested remainder. —Certain lands were conveyed to a trustee in trust for A during his
life and on his death to convey the lands to R provided that the trustee should at any time convey the lands to R if A
should so desire. Held that the right of R was a vested interest. 10 On a partition between a Hindu father and his
three sons the father was given a life estate in certain lands and on his death the same to be divided between his
three sons in certain proportions; held the interest of the sons was a vested remainder in the land. 11 Under Hanafi
Law a life estate is not recognized, nor can it be created. A Sunni Mahomedan female made a will in favour of her
daughter whereby she was to enjoy the property during her life but was forbidden to alienate it by way of sale,
mortgage, gift, etc . She further directed that on the death of the daughter her step-son and his descendants should
take the property as absolute owners. The step-son having died during the lifetime of the daughter, it was held by
Beaumont, C.J., that under the will the daughter did not take an absolute interest but a life-interest with remainder
to the step-son but the remainder failed to take effect as he did not survive the daughter. Held by Rangnekar, J.,
that the grant of a lifeestate to the daughter operated under Mohamedan Law as a grant of an absolute estate.
Mahomedan Law does not recognize a vested remainder. 12
Where performance of an act is not a condition precedent; the transferee takes a vested interest.
—A certain person made a disposition of his property in favour of his wife by means of a will which provided that the
son should get the property after performing the obsequies of the mother in whose favour the disposition was made.
No provision was made in the will for the enjoyment of the property in case the son should die before performing the
obsequies. Held, the condition of performing the obsequies was not a condition precedent and the son got a vested
interest in the property. 13
Interest dependent on the death of present holder. —Where in a compromise suit between two
brothers for possession of immovable property it was provided that certain property should be held by one brother
for his life and afterwards should go to the second brother if he survived the first, it was held that the second brother
took a vested and not a contingent interest in the property so settled. 14
Transferable and attachable. —A vested interest is transferable 15 and is therefore susceptible of

being attached and sold in execution of a decree. 16
Page 8 of 14
S. 19.(A)
Postponement of adopted son’s estate during the widow’s life. —An agreement depriving the
adopted son of his right to take possession of the property of an adoptive father is not prohibited by law. Where
such an agreement gives a life estate to the adoptive mother and the remainder to the adopted son, the latter’s
interest is not that of a contingent collateral Hindu reversioner, but that he has a vested interest which he is
competent to deal with subject to the life estate of the mother. He is not barred by the provisions of Section 6 (a)of
the
Transfer of Property Act of 1882 from dealing with the property.17
Beneficiary’s right to transfer of possession. —Under Section 56 of the Indian Trust Act, II of 1882,
where there is only one beneficiary and he is competent to contract, or where there are several beneficiaries and
they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust property
to him or them, or to such person as he or they may direct.
Illustrations
(a) Certain Government securities are given to trustees upon trust to accumulate the interest until A attains the
age of 24 and then to transfer the gross amount to him. A on attaining majority may, as the person
exclusively interested in the trust property, require the trustees to transfer it immediately to him.
(b) A bequeaths Rs. 10,000 to trustees upon trust to purchase an annuity for B , who has attained his majority
and is otherwise competent to contract. B may claim the Rs. 10,000.
(c) A transfers certain property to B and directs him to sell or invest it for the benefit of C who is competent to
contract. C may elect to take the property in its original character.
Right of inheritance. —The right of a son or daughter or other heir of a person to inherit his property is
not an estate in remainder or in reversion in immovable property or an estate otherwise deferred in enjoyment. It is
neither a vested nor a contingent right. It does not come within the definition of a "vested interest" in
Section 19 of the Transfer of Property Act , IV of 1882, or of "a contingent interest" in Section 21 of the
Act and Section
Sections 119 of the Indian Succession Act, 1925 . So far from being a vested or a contingent right, or a
right in present or in future, it is, in the language of clause (a) of
Section 6 of the Transfer of Property Act (IV of 1882), "the chance of an heir-apparent succeeding to an
estate" or "a mere possibility" of succession which cannot be transferred.
A mere spes successionis is unknown to, and not recognized by, Mahomedan Law. 18
Vested or contingent interest for what purpose treated alike. —In New’s case 19 it was held that
where there arises an emergency or a state of circumstances which, it may reasonably be supposed, was not
foreseen or anticipated by the author of the trust and is unprovided for by the trust instrument, and which renders it
desirable and perhaps even essential, in the interests of the beneficiaries, that certain acts should be done by the
trustees which they themselves have no power to do, and to which the consent of all the beneficiaries cannot be
obtained by reason of some not being sui juris or not yet in existence, the Court will exercise its general
administrative jurisdiction by sanctioning on behalf of all parties interested, those acts being done by the trustees.
This case constitutes the high-water mark of the exercise by the Court of its extraordinary jurisdiction in relation to
trusts. It shows how far the Court will go and beyond what point it will not go. When an advance under the above-
mentioned circumstances was sought out of the estate for the benefit of a minor who was a beneficiary with a
Page 9 of 14
S. 19.(A)
vested or contingent interest, the Court exercised its extraordinary jurisdiction and granted a reasonable amount. 20
Onus. —The burden of showing that in a transfer of property there is no vesting of interest, is on those
who assert it. 21 And the weight of the burden is aggravated by the elimination, in the explanation, of
circumstances, which might, apart from the explanation, be thought sufficient to discharge it.
Limitation expressed in form contingent construed as vested. —A leading authority for this
construction is Boraston’s case. 22 Lands were devised for eight years and afterwards to remain with the executors
till such time as H. should accomplish the age of twenty-one and thereupon to him and his heirs and assigns for
ever. H. died before attaining twenty-one. It was contended that the remainder had not vested in him but the Court
held otherwise, observing that the adverbs "when" and "then" only denoted the time when the remainder was to
take effect in possession and not when it was to vest. The authorities on the subject were summed up in Maddison
v. Chapman , 23 in which it was laid down that a vested interest previously given is incapable of destruction except
upon the clearest terms to that effect, contained in the limitation over and where a limitation over which though
expressed in the form of a contingent limitation is in fact merely dependent upon a condition essential to the
determination of the interest previously limited, the Court is at liberty to hold that notwithstanding the words in form
import contingency, they mean no more in fact than that the person to take under the limitation over is to take
subject to the interest so previously limited. The true test is, can the words which in form import contingency be
read as equivalent to "subject to the interest previously limited?"
When unborn person acquires vested interest on transfer for his benefit.
53 Hervey-Bathurst v. Stanley , (1876) 4 Ch. D. 251; Re. Merrick’s Trust , (1866) 35 LJ Ch.
418.
54 Adams v. Gray ,
AIR 1925 Mad 599 [
LNIND 1924 MAD 425 ]; Maitland v. Chalie , (1822) 6 Mad 243 : 56 ER 1084.
55 Brocklebank v. Johnson , (1855) 25 LJ Ch. 505 : 52 ER 581.
56 Re. Stevens, Clarke v. Stevens , (1896) 40 Sol. Jo. 296.
57 Richardson v. Robertson,
(1862) 6 LT 75 .
58 Sewdayal v. The Official Trustee of Bengal ,

(1931) 58 Cal 768 .
59 In re Francis, Francis v. Francis , (1905) 2 Ch. 295.

Page 10 of 14
S. 19.(A)
60 Adams v. Gray ,
AIR 1925 Mad 599 [
LNIND 1924 MAD 425 ]; Halifax v. Wilson , (1809) 16 Ves. 168 : 33 ER 947.
61 Harris v. Brown ,
(1901) 28 Cal 621 .
62 V. Nagarathinam v. Padmadevi ,
AIR 2001 Mad 53 [
LNIND 2000 MAD 882 ] (61).
63 Rukhamanbai v. Shivram , AIR

1981 SC 1881 (1886, 1887) :
(1981) 4 SCC 262 [
LNIND 1981 SC 371 ].
64 Rukhamanbai v. Shivram , AIR

1981 SC 1881 (1886, 1887) :
(1981) 4 SCC 262 [
LNIND 1981 SC 371 ].
65 Chikkaraj v. K.N. Viswanathan ,

AIR 1979 Mad 103 [
LNIND 1977 MAD 218 ] (113, 114) (DB).
66 Usha Subbarao v. B.N. Vishveswariah , AIR 1996

SC 2260 (2263) :
(1996) 5 SCC 201 ; Chinna Reddy v. Pujari Keshanna ,
AIR 1954 Hyd 185 (DB) :
ILR 1954 Hyd 250 ; Sarla Mehra v. Praleen Chopra,
2010 (3) AD (Delhi) 313 ; Sarvjit Singh Sareen v. Ritu Menon,
2010 (166) DLT 242 .
67 Rajes Kanta v. Shanti Debi , AIR

1957 SC 255 (263) :
1957 SCR 197 .
68 Chinna Reddy v. Pujari Keshanna ,

AIR 1954 Hyd 185 (DB) :
ILR 1954 Hyd 250 .

1957 SC 255 (263) :
1957 SCR 197 .
70 Rajes Kanta v. Shanti Debi ,

AIR
1957 SC 255 (263) :
1957 SCR 197 ; Usha Subbarao v. B.N. Vishveswariah , A 1996
SC 2260 (2264) :
(1996) 5 SCC 201 .
Page 11 of 14
S. 19.(A)
71 Sarvjit Singh Sareen v. Ritu Menon ,

2010 (166) DLT 242 .
72 Rajes Kanta v. Shanti Debi,

AIR
1957 SC 255 (263) :
1957 SCR 77 [
LNIND 1956 SC 100 ] ; See also Chabrolu Thayaramma (deceased LRs) v. South
India Educational Trust & Others ,
AIR 2008 (NOC) 481 (Mad).
73 A. Damodran v. Illa Kesavan , AIR 1955 NUC (Trav-Co.) 5101 (DB).
74 N. Ramaswamy Naicker v. V.G. Ramaswamy Naicker ,

AIR 1977 NOC 341 (Mad)
75 Palchuri Henumayamma v. Tadikamalla Kotlingam (D) by LRs , AIR 2001

SC 3062 (3067) :
(2001) 8 SCC 552 [
LNIND 2001 SC 1985 ].
76 Section 17, Presidency Towns Insolvency Act, 1909.
77 Section
Sections 211, Indian Succession Act, 1925 .
78
Section 92, Code of Civil Procedure, 1908 .
79 O. 21 r. 81,
Code of Civil Procedure, 1908 .
80 Bidhutibhushan v. Anadinath ,
(1934) 61 Cal 119 ; Mahomed Habeeb Alum v. Anjuman Ara Begum ,
(1935) 62 Cal 393 .
81 Sumsuddin v. Abdul Husein , (1907) 31 Bom 165, 172.
82 Lloyd v. Webb ,
(1896) 24 Cal 44 .
83 (1801) 6 Ves. 239 : 31 ER 1030.
84 (1894) 2 Ch. Div. 184.
85 (1841) 4 beav. 115 : 41 ER 482.
86 (1859) Joh. 265 : 70 ER 423.

Page 12 of 14
S. 19.(A)
87 (1878) 8 Ch. D. 261.
88
(1901) 28 Cal 621 .

(1918) 40 All 692 .

(1931) 58 Cal 768 .
91 De Souza v. Vaz , (1888) 12 Bom 137.
92 Bhagabati v. Kalicharan ,
(1911) 38 Cal 468 .
93 Cally Nath v. Chunder Nath ,

(1882) 8 Cal 378 ; Chunilal v. Bai Muli , (1900) 24 Bom 420 ; Lallu v. Jugmohan ,
(1898) 22 Bom 409 ; Jairam v. Kuverbai , (1885) 9 Bom 491 ; Badridas v. Sundar Das ,
AIR 1927 Lah 166 ; Bilaso v. Munni Lal ,
(1911) 33 All 558 ; Ranganatha v. Mohanakrishna ,
AIR 1926 Mad 645 [
LNIND 1925 MAD 332 ]; Subramaniam v. Subramaniam , (1882) 4 Mad 124.
94 Re. Peek’s Trusts , (1873) L.R. 16 Eq. 221; Hanson v. Graham , (1801) 6 Ves. 239 : 31
ER 1030.
95 Saunders v. Vautier , (1841) 4 Beav. 115 : 41 ER 482.
96 Gosavi Shivagar v. Rivett-Carnac , (1889) 13 Bom 463 ; Gosling v. Gosling , (1859) Joh.
265 : 70 ER 423 followed ; Husenbhoy v. Ahmedbhoy , (1901) 26 Bom 319.
97 Pulsford v. Hunter , (1792) 3 Bro. C.C. 416 : 29 ER 618; Re. Martin, Tuke v. Gilbert,
(1887) 57 LT 471 ; Re. Wintle, Tucker v. Wintle , (1896) 2 Ch. 711.
98 De Souza v. Vaz , (1888) 12 Bom 137 ; Adams v. Gray ,

AIR 1925 Mad 599 [
LNIND 1924 MAD 425 ].
1 Maseyk v. Fergusson ,
(1879) 4 Cal 304 .
2 Browne v. Kenyon (Lord) , (1818) 3 Mad 410 : 56 ER 556; Re. Pickeworth, Snaith v.
Parkinson , (1899) 1 Ch. 642.
Page 13 of 14
S. 19.(A)
3 Sunder Bibi v. Lal Rajendra ,

(1925) 47 All 496 .

(1931) 58 Cal 768 .
5
Section 2, Transfer of Property Act, 1882 .
6 Abdul Wahid v. Nuran Bibi ,

(1885) 11 Cal 597 .
7 Banoo Begum v. Mir Abed Ali , (1908) 32 Bom 172.
8 Jainabai v. R.D. Sethna , (1910) 34 Bom 604 (612); Cassamally v. Currimbhoy , (1912)
36 Bom 214 (253).
9 Abdool Hoosein v. Goolam Hoosein , (1906) 30 Bom 304.
10 U. Zoe v. Ma Mya May , AIR 1930 Rang 184.
11 Raghunath v. Madhav ,
(1923) 25 Bom LR 456 .
12 Rasoolbibi v. Yusuf ,
(1933) 35 Bom LR 643 ; Abdul Wahid Khan v. Mussamat Nuran Bibi ,
(1885) 11 Cal 597 : 12 IA 91; Abdul Karim Khan v. Abdul Qayum Khan ,
(1906) 28 All 342 ; Harpal Singh v. Lakhraj Kunwar ,
(1908) 30 All 406 ; Abdool Hoosein v. Goolam Hoosein , (1905) 30 Bom 304 ; but
see Saroobai v. Hussein Somji , (1937) Bom 18.
13 Narayana Ayyar v. Subbaraya Ayyar ,

AIR 1929 Mad 32 [
LNIND 1928 MAD 215 ].
14 Sundar Bibi v. Lal Rajendra ,

(1925) 47 All 496 .
15 Badri Das v. Sundar Das ,

AIR 1927 Lah 166 ; Sundar Bibi v. Lal Rajendra ,
(1925) 47 All 496 ; Bilaso v. Munni Lal ,
(1911) 33 All 558 ; Bhagabati v. Kali Charan ,
(1911) 38 Cal 468 ; Umes Chunder Sirear v. Zahur Fatima ,
(1891) 18 Cal 164 : 17 IA 201; U. Zoe v. Ma Mya May , AIR 1930 Rang 184.
16 Sundar Bibi v. Lal Rajendra ,

(1925) 47 All 496 ; U. Zoe v. Ma Mya May , AIR 1930 Rang 184.
Page 14 of 14
S. 19.(A)

(1918) 40 All 692 .
18 Abdool Hoosein v. Goolam Hoosein , (1906) 30 Bom 304.
19 (1901) 2 Ch. 534.
20 Rajagopala Gramani v. Baggiammal , (1933) 56 Mad 508.
21 Sewdayal v. Official Trustee of Bengal,

(1931) 58 Cal 768 .
22 (1587) 3 Co. Rep. 16a : 76 ER 664.
23 (1858) 4 K. & J. 709 : 70 ER 294.
End of Document
Darashaw Vakil
S. 20.
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 thereof immediately on his birth.
End of Document
S. 20. (A)
Darashaw Vakil
COMMENTS
Scope. —On a transfer made for the benefit of a person not born, he takes a vested interest although
the enjoyment may be deferred beyond his birth. Thus where a settlement is made in trust for A for life and on his
death in trust for his child B for life and on the death of B in trust to the children of B absolutely, although the
children of B are not entitled to the property till the death of B , they take a vested interest in the property on birth.
But a trust for the benefit of an unborn person must not infringe the rule in Section 13.
Section 20 is not controlled by the provisions of Section 13. 24
A donor transferred his property by gift in favour of H a living son of his daughter (donor’s daughter). In
the gift deed it was also provided that the property gifted shall also be enjoyed by other sons who might be born to
donor’s daughter before H attained majority. T was born to donor’s daughter before H attained majority. H
transferred the entire gifted property. It was held that T on birth acquired 1/2 share in the gifted property in view of
Section 20 and T was entitled to partition and recover possession of his 1/2 share in the property. 25 Where a donor
by gift deed gave property to her brother’s son then living and also stated in the gift deed that others male children
born to her brother would also be joint holders with the donee, held the gift deed was valid in view of the provisions
of Section 20 and was not hit by the provisions of
Relinquishment is not transfer of property. Where a member of Mitakshra joint Hindu family, relinquishes his share
in favour of other members and his unborn sons Section 20 would not apply, after begotten sons acquire no benefit.
27
"Contrary intention". —An interest may be vested or contingent; when the intention is against a vested
interest it must be a contingent interest.
Sections 19 and 20. —The former section deals with vested interests in favour of living persons, the
Page 2 of 2
S. 20. (A)
latter with unborn persons.
Particular estate and deferred estate. —In transfers referred to in Sections 19 and 20 there are
necessarily two estates, the particular estate and the deferred estate. The prior estate is known as the particular
estate and the subsequent estate as the deferred estate.
Contingent interest.
AIR 1962 Mys 98 (100).
AIR 1962 Mys 98 (100); F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat ,
AIR
2004 SC 2665 (2668, 2669) :
(2004) 2 SCC 504 .
26 F.M. Devaru Ganapati Bhat v. Prabhakar Ganapathi Bhat , AIR

2004 SC 2665 (2668, 2669) :
(2004) 2 SCC 504 .
27 Anjaneyulu v. Ramayya,
AIR 1965 AP 177 [
LNIND 1964 AP 149 ] (183) (FB).
End of Document
Darashaw Vakil
S. 21.
Where, on a transfer of property, an interest therein is created in favour of a
person to take effect only on the happening of a specified uncertain event,
or if a specified uncertain event shall not happen, such person thereby
acquires a contingent interest in the property. Such interest becomes a
vested interest, in the former case, on the happening of the event, in the
latter, when the happening of the event becomes impossible.
Exception . — Where, under a transfer of property, a
person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him
absolutely the income to arise from such interest before he reaches that age, or directs the income or so much
thereof as may be necessary to be applied for his benefit, such interest is not contingent.
End of Document
S.21(A)
Darashaw Vakil
COMMENTS
Analogous law. —This corresponds to Section

"Date of vesting when legacy contingent upon specified uncertain event —
(1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event
happens.
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the
happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent."
Exception. —Where a fund is bequeathed to any person upon his attaining a particular age, and the Will
also gives him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so
much of it as may be necessary, to be applied for his benefit, the benefit of the fund is not contingent.
Illustrations
(i) A legacy bequeathed to D in case A, B and C shall all die under the age of 18, D has a contingent interest
in the legacy until A, B and C all die under 18, or one of them attains that age.
Contingent interest Sec. 21 335
(ii) A sum of money is bequeathed to A "in case he shall attain the age of 18", or "when he shall attain the age
of 18". A ’s interest in the legacy is contingent until the condition is fulfilled by his attaining that age.
(iii) An estate is bequeathed to A for life, and after his death to B , if B shall then be living: but if B shall not be
then living to C, A, B and C survive the testator. B and C each take a contingent interest in the estate until
the event which is to vest it in one or in the other has happened.
(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C . Upon the death of
B, C acquires a vested right to obtain possession of the estate upon A ’s death.
Page 2 of 11
S.21(A)
(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the
consent of B , with a proviso that, if she neither attains 18 not marries under that age with B ’s consent, the
legacy shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A
becomes absolutely entitled to the legacy although she may have married under 18 without the consent of
B.
(vi) An estate is bequeathed to A until he shall marry and after that even to B. B ’s interest in the bequest is
contigent until the condition is fulfilled by A ’s marrying.
(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and
after that even to B. B ’s interest in the bequest is contingent until A takes advantages of such a law.
(viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A ’s interest in the bequest is contingent until
he has paid 500 rupees to B .
(iv) A leaves his farm of Sultanpur Khurd to B , if B shall convey his own farm of Sultanpur Buzurg to C. B ’s
interest in the bequest is contingent until he has conveyed the latter farm to C .
(x) A fund is bequeathed to A if B shall not marry C within five year after the testator’s death. A ’s interest in
the legacy is contingent until the condition is fulfilled by the expiration of the five years without B ’s having
married C , or by the occurrence within that period of an event which makes the fulfillment of the condition
impossible.
(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until B
’s death.
(xii) A bequeaths to B 500 rupees a year upon his attaining the age of 18, and directs that the interest, or a
competent part thereof, shall be applied for his benefit until he reaches that age. The legacy is vested.
(xiii) A bequeaths to B 500 rupees when he shall a certain sum, out of another fund, shall be applied for his
maintenance until he arrives at that age. The legacy is contingent."
Scope and application. —On a transfer of property an interest is said to be contingent when it is to
take effect only if a specified uncertain event
(a) shall happen or

(b) shall not happen.
Every contingent interest must become vested at one time or other, in case (a) on the happening of the event, in
case (b) when the happening of the event becomes impossible.
An interest is said to be vested interested when there is immediate right or present enjoyment for future enjoyment.
An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which
may not happen. On the happening of the event or condition a contingent interest becomes a vested interest. 28
One of the features of a contingent interest is that if a person dies before the contingency disappears and before
the vesting occurs, the heirs of such a person do not get the benefit of the gift. 29 The settlor can cancel the
settlement made and is competent to make fresh settlement. 30 The determination of the question as to whether an
interest created by such a deed is vested or contingent has to be guided generally by the principles recognised
under
Sections 19 and
21 of the
Transfer of Property Act, 1882 , and Sections
section 119 and
Page 3 of 11
S.21(A)
120 of the
Indian Succession Act, 1925 .31 Where a father executed a trust in respect of his trust properties, his son
X was appointed as sole trustee, on the death of the settlor and discharge of all debts, some of the properties
mentioned in the deed were to go X and his brother B , the interest acquired by X and Y was held vested and not
contingent interest. 32 Contingent interest is property and it is clearly transferable. 33
Contingent interest, does not necessarily require a prior interest for its support and does not, always, take effect
after the termination of a prior interest. 34 When the vesting of some estate is dependent upon an event, that may or
may not happen, such an estate is called contingent interest and if the event is bound to happen, then it is vested
interest. 35 An estate or interest is vested when there is an immediate right of present enjoyment or a present right
of future enjoyment. An estate of interest is contingent if the right of enjoyment is made to depend upon some event
or condition which may not happen or be performed, or if in the case of a gift to take effect in future, it cannot be
ascertained in the meantime whether there will be anyone to take the gift; in other words, an estate or interest is
contingent when the right of enjoyment is to accrue, on an event which is dubious or uncertain. 36
Where the settlement deed executed by husband in favour of a wife stipulated that wife’s interest in the property is
dependent upon the event of any disagreement between her and her husband, the wife has only a contingent
interest in the property till the contingency has arisen. 37
Sale of property by life estate holder and her sons in her life time without the knowledge of executor of property and
without permission of the Court granting probate is improper. 38
Devises and bequests contingent. —These are dealt with in Section

section 120 of the Indian Succession Act, 1925 , which contains numerous illustrations of which (i) to (iii)
and (v) to (ix) are examples of bequests and devises to take effect in case a specified uncertain event shall happen,
while illustrations (x) and (xi) are examples of bequests and devises in case a specified uncertain event shall not
happen. Illustrations (xii) and (xiii) exemplify the exception to that section. This section of the
Indian Succession Act, 1925 is parallel to
Section 21 of the Transfer of Property Act , but the two sections are in conflict with one another in the
case of a gift over by reason of
Section 12 of the Transfer of Property Act , of which there is no parallel section in the
Indian Succession Act , so that a condition like the one referred to in illustration (vii) to Section
section 120 of the Indian Succession Act would be void in the case of a transfer inter vivos under
Section 12 of the Transfer of Property Act . A Bengali Hindu by his Will authorized his widow to adopt a
son, one after another, five in succession. He further directed that if his wife died without adopting or the adopted
boy pre-deceased her without leaving male issue his estate on the death of his wife should pass to the sons of his
sister living at his death. The widow adopted a boy who died childless and unmarried. She then died after him. It
was held that there was a valid contingent bequest in favour of the testator’s nephews.39
Where the terms of a bequest were "if both my daughters have issue they shall divide the properties equally, those
who have no issue shall enjoy the income for their lives and those who have issue shall enjoy the whole property," it
was held that birth of issue was a contingency on which the gift in each case was absolute. 40
Providing for his daughters, a Hindu testator directed "when they will be married" separate houses should be
provided for them. The direction was coupled with a gift for maintenance to each of Rs. 600 a year and that "as long
as the daughters will live in the separate houses they would get the fixed allowances and if they do not live in this
place they would get Rs. 10." The daughters were married and lived in separate houses. Held that the payment of
Page 4 of 11
S.21(A)
maintenance was not contingent on the daughter’s marriage or any other future event. 41
A Hindu died in 1875 leaving a widow, I , and a son’s daughter, B By his will he authorised his widow to adopt,
prohibiting her from doing so if B had a son. He further provided that if I died without adopting B , her sons were
owners of the property. B gave birth to a son in 1891. In 1896, I adopted a son. B died in 1897 and I three weeks
later. In a suit by B’s son for possession of the property it was held that there was no direct gift of the remainder to
B but a gift contingent on the happening of an uncertain event, viz. , the dying of I without having taken a boy in
adoption. The contingency could not be regarded as having occurred in view of the fact that I did not adopt. 42
Spes successionis and contingent interest. —A spes successionis is a bare or naked

possibility such as 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 possibility of a like nature which must be distinguished from a
possibility coupled with interest. Where interest in corpus is given to a donee under a settlement and such interest
is contingent on the happening of an uncertain event, the donee acquires a contingent interest in the corpus which
becomes vested on the happening of the uncertain event and such contingent interest though dependent on a
possibility for its vesting is very much different from a spes successionis . 43
Settlement/Will — Vested or contingent interest. —Where the question is as to whether an interest

granted under a settlement or Will is vested or contingent, the well settled rule of construction is that the interest is
to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness. 44
Another rule of equal cogency is that in all these cases the question is really "one of intention to be gathered from a
comprehensive view of all the terms of the document". 45
While interpreting an instrument to find out whether it is of a testamentary character, which will take effect after the
lifetime of the executant or it is an instrument creating a vested interest in praesenti in favour of a person, the Court
has to very carefully examine the document as a whole, look into the substance thereof, the treatment of the subject
by the settlor/executant, the intention appearing both by the expressed language employed in the instrument and by
necessary implication and the prohibition, if any, contained against revocation thereof. Form or nomenclature of the
instrument is not conclusive and the Court is required to look into the substance thereof. Where the settlor
expressed his intention, in no uncertain terms, to settle the property in favour of 16 persons who were none else
than his own relatives and declared that "from this day onwards I and you shall enjoy the land and house without
creating any encumbrance or making any alienation whatsoever", which was an unequivocal creation of right in
favour of 16 persons in praesenti , though, the beneficiaries were to become absolute owners of their respective
shares after the death of the settlor, the language of the document clearly showed that all of them were to enjoy the
property along with settlor during his lifetime, and after his death, each of the beneficiaries was to get a specified
share, in the concluding portion. The settlor made it clear that he will have no right to cancel the settlement deed for
any reason whatsoever or to alter the terms thereof. Held, the document in question was a settlement deed and not
Will. 46
In the undermentioned case, the settlement deeds recited that since the settlor K had no son and her husband
during his life time has bestowed his love and affection on settlee V , the son of his elder sister as such, out of love
and affection, she has settled that the income derived from the house properties D shall be enjoyed by herself and
settlee V , till her life time and after her demise, it shall be enjoyed by settlee absolutely. The settlor K further
authorized him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc.,
and the remainder rental amount shall be enjoyed by the settlor and settlee in moiety. The settlor K further settled
that she would not alienate the property but both of them reserve the right to alienate the property jointly. Held,
settlement deeds in no uncertain terms laid down that the properties in question would vest absolutely after the
death of the settlor and during their life time, both will enjoy the usufructs but settlee would collect the rental income
of the aforesaid property. Thus, these settlement deeds clearly made out that settlee V was not made absolute
owner of the property during the life time of the settlor K . In the aforesaid circumstances, on the death of settlee V
Page 5 of 11
S.21(A)
during life time of settlor K , the settlor K had not completely divested her right in favour of the deceased settlee but
it was a contingent one that it would vest after her death. Therefore, the intention of the settlor was very clear that
the settlement was to come into effect after the death of settlor. Since the settlor K survived after setlee V , the
settlor K had right to revoke the settlement deeds and issue a fresh settlement in favour of other party. On account
of the death of settlee, the settlor remained the sole owner of the suit property because settlement deed had come
to an end on account of the death of settlee. The settlor had the right to execute fresh deed of settlement. 47
Remainders. —These are of two kinds, vested and contingent. The former is one which is always ready
to come into enjoyment or possession the moment the prior estate determines. In case of a vested remainder the
gift is complete, only the enjoyment is deferred till the particular or prior estate determines. A contingent remainder
is a future estate. In a contingent remainder the estate depends upon the determination of the prior estate but,
unlike a vested remainder, it is not ready to come into possession the moment the particular estate determines. A
vested remainder is alienable. A contingent remainder is not. Every contingent remainder of an estate of freehold
must have a particular estate of freehold to support it. 48 In a vested remainder it is uncertain or conditional. A by
her will devised that the yearly income of her settled estate should be equally divided between her daughters L and
M and that in the event of the death of either the survivor should receive the whole income. It was held that gift to
the survivor was a contingent and not a vested estate, for it was uncertain which of the two would be the survivor. 49
To enable a remainder to be vested the gift must be direct. 50
Mahomedan Law. —A vested remainder is not recognized by Mahomedan Law. 51
Discretionary trust to apply intermediate income in maintenance. —A testatrix devised her estate to
trustees upon trust to convey and transfer the same to U "when and so soon as he shall attain the age of twenty-
five years." She then directed her trustees to apply "the whole or such part as they in their absolute discretion think
fit" of the income for the "maintenance, education or benefit" of the person "presumptively entitled" to her residuary
estate and "during the suspense of absolute vesting" to accumulate the surplus income (if any) in augmentation of
her residuary estate with power to resort to accumulations as income in any subsequent year for the purpose
aforesaid. Held, following Fox v. Fox 52 and In re Williams , 53 that U took a vested interest at the
testatrix’s death and on attaining twenty-one was entitled to an immediate conveyance and transfer. 54
A discretionary power to the trustees "to spend such sum or sums out of the income for the maintenance,
education, etc . of such son or sons as trustee or trustees shall think fit" does not bring a contingent gift within the
exception. 55
A discretionary power to the trustees "to spend such sum or sums out of the income for the maintenance,
education, etc . of such son or sons as trustee or trustees shall think fit" does not bring a contingent gift within the
exception. 56
Gifts to a class. —These would be governed by the same rules as are prescribed in the section for an
individual.
Exception. —Exception applies only to the case where a fund is given to any person "on his attaining a
Page 6 of 11
S.21(A)
particular age" It has no relation to any other contingency, e.g. , to his serving a named person. 57
What the exception to Section 21 requires is that there must be a direction to apply the income or so much part
thereof as may be necessary for the benefit of the donee, it the gift to the donee apparently contingent is to be held
to be vested. If there is a mere discretionary power to apply the income for the benefit of the donee, that would not
be sufficient to vest the gift. 58
Where a trust deed provided that the income of the trust would be applied to the benefit of the beneficiary and his
wife and the corpus shall be delivered to the beneficiary after a certain period, the case fell under exception Section
21 and the beneficiary acquired contingent interest. 59
Person entitled to interest upon attaining a particular age. —The exception to the section deals with
the case where under a transfer a person becomes entitled to the interest therein upon attaining a particular age.
These words, though apparently importing a contingency, 60 do not prevent the vesting of the estate and the
transferee is deemed to have taken a vested interest where the income of the property is given to him absolutely till
he reaches that particular age or where there is a direction in the transfer that the income or so much thereof as
may be necessary shall be applied for his benefit until he reaches that age. Section
section 120 of the Indian Succession Act, 1925 , contains a similar provision. But Section 172 of that Act
enacts that where a bequest of the interest of a fund is made to a person without affording any indication of an
intention that the enjoyment of the bequest should be of limited duration, the principal as well as the interest
belongs to the legatee.
In a Bombay case a Parsi by his will directed his executor to maintain himself and the testator’s son and to defray
the expenses of educating the son out of the testator’s "property and effects" and to make over the "remaining
properties" to the son upon reaching his majority. The son died an infant. It was attempted to bring the case within
the exception to Section
section 120 of the Indian Succession Act, 1925 , but the Privy Council held that the case did not fall
within the exception and the bequest of the residue to the son was contingent on his attaining the age of majority.61
A devise of real estate to a devisee when he shall attain a certain age, or if he shall attain a certain age, without any
further context to assist, is contingent, and the attainment of the prescribed age is a condition precedent to the
estate vesting in him. 62
The context may enable the Court to declare the estate to be a vested estate defeasible on death under the
prescribed age : for instance, there may be in terms a disposition of the intermediate income, or a gift over in the
event of the devisee failing to attain the necessary age or some other sufficient context. The rule, however, is that if
possible, you hold a condition to be subsequent rather than precedent. 63 It has been much contested whether this
rule in Edwards v. Hammond 64 can be applied where attainment of the given age is made part of the
description of the devisee; and that when it is a part of the description until there is a person who answers that
description there can be no vesting of the property in question, for there could be a vesting in an unascertained
person. The proper way of dealing with a question of this sort is to see if the authorities prevent one from giving the
words the natural construction which they would otherwise have. There are certain cases, of which Phipps v.
Ackers 65 is an example, in which a gift to a named person if and when he attains the age of twenty-one
years, with a gift over in the event of his dying under the age, was held to confer upon the original devisee a vested
estate liable to be divested. The origin of that rule is not in doubt. It was derived from the anxiety of the Court to
prevent the failure of a contingent devise taking effect in the future, for default of an estate of freehold sufficient to
support it. Of the other class of authorities, the leading case of Duffield v. Duffield 66 is the best
example. That was the case of a gift to a person not definitely described by name or description but to a person
who may or may not fulfil a particular description and a devise to him if he does fulfil that description, with an
alternative devised, or even a devise over, if there should be no such person. In those cases it has been held that
the gift is contingent. It is an established principle of law that estates must remain contingent until there be a person
Page 7 of 11
S.21(A)
having all the qualifications that the testator requires and completely answering the description given of the object of
his bounty in his will. A testator by his will dated 1917 devised and bequeathed his properties "upon trust in fee
simple or absolutely for such son of my son W. A. as first or alone attains the age of twenty-one years or failing any
such son, then upon trust as part of my residuary estate." He gave the residue of his estate in trust for both or either
of his sons W. A. and J. J. A. who should survive him, and if both, in equal shares. It also provided that if and so
long as some son of his son. W. A. should be living, the property should not become absolutely vested beneficially
in any such son but the trustee should out of the residuary estate maintain and keep up the establishment and allow
the same to be used by any of the persons for the time being entitled in expectancy thereto. The testator died in
1919 and his two sons survived. W. A. had four sons living at the testator’s death, the eldest son being thirteen
years of age. Held that the interests of the grandsons were contingent, and until one of them attained the age of
twenty-one or all of them died without attaining that age, W.A. and J. J. A. were entitled to the intermediate rents
and profits of the property. 67
Where a testatrix directed that certain moneys should be held upon trust to pay the dividends unto her daughter for
life and after her death in trust for the lawful children of the said daughter who being sons or a son shall attain the
age of twenty-one years or being daughters or a daughter shall attain that age or marry and if more than one in
equal shares, it was held that attaining of twenty-one years was a condition precedent and that no child who did not
attain twenty-one years could take. 68
A single Judge of the Calcutta High Court, dealing with a will prior to the Succession Act and, therefore, construing
it according to the rules of the English Law, held that "where the words of contingency form part of the description of
the class of persons to take, where, as in this case, the gift is to those "who shall attain the age of twenty-one" the
words must receive their natural construction, and no estate vests in any one till he attains the prescribed age. Of
this class of cases, Festing v. Allen 69 and Bull v. Pritchard 70 are leading cases. It is true
that in Browne v. Browne 71 Stuart, V.C., refused to follow Festing v. Allen and in Jull v. Jacobs , 72
Malins, V.C., expresses disapproval of the same case : "I think it clear, however, upon all the authorities, that in
such cases there must, at any rate, be something in the context pointing to a different construction, or something in
the will inconsistent with the literal construction, to justify a Court in adopting any but the literal construction." 73
Transfer to members of a class who attain a particular age.
28 Usha Subbarao v. B.N. Visheswariah , AIR 1996

SC 2260 (2263) :
(1996) 5 SCC 201 ; Kokilambal v. N. Raman , AIR
2005 SC 2468 (2471, 2472, 2473) :
(2005) 11 SCC 234 [
LNIND 2005 SC 412 ].

1957 SC 255 (263) :
1957 SCR 77 [
LNIND 1956 SC 100 ].
30 Kokilambal v. N. Raman , AIR

2005 SC 2468 (2471, 2472, 2473) :
(2005) 11 SCC 234 [
LNIND 2005 SC 412 ].
Page 8 of 11
S.21(A)

1957 SC 255 (263) :
1957 SCR 77 [
LNIND 1956 SC 100 ].

1957 SC 255 (263) :
1957 SCR 77 [
LNIND 1956 SC 100 ].
33 Ma Yait v. Official Assignee , 57 Ind App 10 (13) : AIR

1930 PC 17 (18); Indralok Studio Ltd. v. Santi Devi ,
AIR 1960 Cal 609 (615) (DB).
34 Indralok Studio Ltd. v. Santi Devi,

AIR 1960 Cal 609 (615) (DB).
35 Chinha Reddy v. Pujari Kishanna ,

AIR 1954 Hyd 185 (189) (DB) :
ILR 1954 Hyd 250 ; Thayammal v. Adhimoolan,
AIR 1956 Mad 304 [
LNIND 1955 MAD 226 ] (304, 305) : 69 Mad LW 472.
36 Sashi Kantha v. Promode Chandra ,

AIR 1932 Cal 600 (609).
37 Thayammal v. Adhimoolam ,
AIR 1956 Mad 304 [
LNIND 1955 MAD 226 ] (304, 305) : 1956 (1) Mad LJ 75 : 69 Mad LW 472.
38 V. Nagarathinam v. Padmadevi ,
AIR 2001 Mad 53 [
LNIND 2000 MAD 882 ] (61).
39 Bhupendra Krishna v. Amarendra Nath Dey ,

(1916) 43 Cal 432 : 43 IA 12.
40 Gurusami v. Sivakami , (1895) 18 Mad 347 : 22 IA 119; Bai Kamala v. Revashankar ,

(1924) 26 Bom LR 249 [
LNIND 1924 BOM 4 ]; Soorjeemoney Dossey v. Denobundoo Mullick , (1862) 9 MIA
123.
41 Chandra Kishore Roy v. Prasanna Kumari ,

(1911) 38 Cal 327 : 38 IA 7.
42 Natvarlal v. Ranchhod ,
(1920) 22 Bom LR 71 [
LNIND 1919 BOM 124 ].
43 Wealth Tax Commr. v. Ashok Kumar ,

AIR 1967 Guj 161 (164) :
Page 9 of 11
S.21(A)
(1966) 2 ITJ 893 :

(1967) 63 ITR 133 .

AIR 1967 Guj 161 (164, 165) :
(1966) 2 ITJ 893 .

AIR 1967 Guj 161 (165) :
(1967) 63 ITR 133 .
46 P.K. Mohan Ram v. B.N. Ananthachary, AIR

2010 SC 1725 (1733, 1737 :
(2010) 4 SCC 161 [
LNIND 2010 SC 241 ] : 2010 AIR SCW 2132 :
2010 (3) SCALE 7 [
LNIND 2010 SC 241 ] :
JT 2010 (3) SC 122 [
LNIND 2010 SC 241 ].
47 Kokilambal v. N. Raman , AIR

2005 SC 2468 (2471, 2472, 2473) :
(2005) 11 SCC 234 [
LNIND 2005 SC 412 ].
48 WILLIAMS on Real Property , 20 Ed., p. 351.
49 Whitby v. Von Luedecke , (1906) 1 Ch. 783.
50 Natvarlal v. Ranchhod ,
(1920) 22 Bom LR 71 [
LNIND 1919 BOM 124 ].
51 Rasoolbibi v. Yusuf ,
(1933) 35 Bom LR 643 ; Abdul Wahid Khan v. Mussumat Nuran Bibi ,
(1885) 11 Cal 597 : 12 IA 91; Abdul Karim Khan v. Abdul Qayum Khan ,
(1906) 28 All 342 ; Harpal Singh v. Lekhraj Kunwar ,
(1908) 30 All 406 ; Abdool Hoosein v. Goolam Hoosein , (1905) 30 Bom 304.
52 (1879) L.R. 19 Eq. 286.
53 (1907) 1 Ch. 180.
54 In re Ussher, Foster v. Ussher , (1922) 2 Ch. 321; In re Parker, Barker v. Barker , (1880)
16 Ch. D. 44.

(1931) 58 Cal 768 .
Page 10 of 11
S.21(A)

(1931) 58 Cal 768 .
57 Sopher v. Admn. General, Bengal , AIR

1944 PC 67 (70) : 48 CWN 585 : 216 IC 53.

AIR 1967 Guj 161 (165) :
(1966) 2 ITJ 893 .

AIR 1967 Guj 161 (165) :
(1967) 63 ITR 133 .
60 Hanson v. Graham , (1801) 6 Ves. 239 : 31 ER 1030; In re Francis, Francis v. Francis ,

(1905) 2 Ch. 295; Harris v. Brown ,
(1901) 28 Cal 621 .
61 Dadachanji v. Ruttonbai , (1925) 49 Bom 167.
62 In re Francis, Francis v. Francis , (1905) 2 Ch. 295.
63 Edwards v. Hammond , (1693) 3 Lev. 132 : 83 ER 614.
64 (1683) 3 Lev. 132 : 83 ER 614.
65 9 Cl. & F. 583 : 134 ER 453.
66 1 Dow. & Cl. 268 : 4 ER 1334.
67 In re Astor, Astor v. Astor , (1922) 1 Ch. 364.
68 Adams v. Gray ,
AIR 1925 Mad 599 [
LNIND 1924 MAD 425 ].
69 (1843) 12 M. & W. 279 : 152 ER 1204.
70 (1826) 1 Russ. 213 : 38 ER 83.
71 (1857) 26 LJ Ch. 635 : 65 ER 783.
72 (1876) 3 Ch. D. 703.

Page 11 of 11
S.21(A)
73 Ballin v. Ballin ,
(1881) 7 Cal 218 .
End of Document
Darashaw Vakil
S. 22.
Where, on a transfer of property, an interest therein is created in favour of
such members only of a class as shall attain a particular age, such interest
does not vest in any member of the class who has not attained that age.
End of Document
S. 22. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —This corresponds to Section

section 121 of the Indian Succession Act, 1925 , which runs as under:—
" 121.Vesting of interest in bequest to such members of a class as shall have attained particular age — Where a
bequest is made only to such members of a class as shall have attained a particular age, a person who has not attained
that age cannot have a vested interest in the legacy."
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any child of A
shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually entitled, shall be
applied for his maintenance and education. No child of A who is under the age of 18 has a vested interest in the bequest."
Class gifts. —In construing gifts to a class due attention must be paid to two wellknown canons of
construction :—(1) That "where there is a gift to a class any members of which may have to be ascertained beyond
the limits of perpetuity... for instance, to the children of a living person who shall attain twenty-five ... the whole gift is
void." (2) That "where there is no direction as to vesting, it is important to distinguish a gift to a contingent class and
a gift to a class upon a contingency; thus, a gift to children who attain twenty-one, or to such children as attain
twenty-one, though there may be a gift of interest or other circumstances, which in a gift to a class upon a
contingency, as, for instance, at twenty-one, might have the effect of vesting the bequest". 74
It is well settled that if there be a gift to an individual or a class upon the attainment of a certain age, such gift is
prima facie contingent on the specified age being attained, but that where there is also a gift to the same individual
or class of the income to accrue before the specified age be attained, the gift of the corpus, though in form
contingent, will be construed as conferring a vested interest. Further, there is a broad distinction beteen a gift to a
class upon attaining a specified age and a gift to such member of a class as attain a specified age. In the latter case
Page 2 of 3
S. 22. (A)
clearly no one is intended to take unless he attains the age in question. It is no longer a question of construing as
vested a gift which is only prima facie contingent, but of adding to the class of beneficiaries. It is with the latter class
of cases that the present section deals, while the former class is the subject of Section 21 of the Act.
"Such members only of a class as shall attain a particular age". —Under a gift to a class
contingently on their attaining twenty-one, the eldest of the class on attaining twenty-one takes a vested interest in
possession of his share and a contingent interest in the share of other members of the class who have not attained
the age of twenty-one. 75 But where "the gift is to a class on the youngest attaining twenty-one, all who attain
twenty-one will take vested interests whether they survive the time of distribution or not. But a member of the class
dying under twenty-one takes nothing". 76
Gift " prima facie " contingent controlled by other provisions. —Where a
bequest to children of a tenant for life was followed by gift over of the share if such tenant died without issue, a
provision that any beneficiary being entitled to a vested interest in any capital moneys under the will should until
attaining twenty-five years be only entitled to the net income to arise from his "expectant share or interest" was
construed as entitling each of the children to a vested interest before attaining the age of twenty-five years, the
words "expectant share or interest" being construed as having reference to the vested share of a child liable to be
divested upon death under twenty-five years of age. 77
The rules of construction deducible from the authorities are :
(1) Where there is a clear gift to an individual an additional direction to pay does not delay the vesting.
(2) The same rule applies where there is gift to a class and the distribution is postponed for the convenience of
the estate or of division till the members attain a certain age or till the youngest attains twenty-one. 78
(3) If the gift to the individual is in terms apparently made contingent upon his attaining majority, or a certain
age, the giving of the interest in the meantime will have the effect of vesting. 79
(4) The same rule does not apply where there is a gift of an entire fund payable to a class of persons equally
upon their attaining a certain age. There a direction to apply the income of the whole fund, in the
meantime, for their maintenance, does not create a vested interest in the member of the class who does
not attain that age. 80 Where the only gift to a class is contained in the direction to distribute, those alone,
who answer to the description of the persons amongst whom the distribution is to be made at the time of
distribution, are entitled to share. 81
These rules of construction must give way where the words exclude their application.
Bequests and devises. —These are governed by Section

section 121 of the Indian Succession Act, 1925 which corresponds with
Section 22 of the Transfer of Property Act . The illustration to the section renders it clear that in the case
of a gift to such members of a class as attain a specified age the payment of the income of the share to him for his
maintenance and education does not vest the gift in such member of a class as has not attained the specified age.
Transfer contingent on happening of specified uncertain event.

Page 3 of 3
S. 22. (A)
74 THEOBOLD on Wills , 8th Ed., p. 653; Bull v. Pritchard , (1826) 1 Russ. 213 : 38 ER 83; Leake v.
Robinson , (1817) 2 Mer. 363 : 35 ER 979; Lloyd v. Lloyd , (1852) 21 LJ Ch. 596 : 61 ER 338; Dewar v. Brooke , (1880)
14 Ch. D. 529; Re. Hume, Public Trustee v. Mabey , (1912) 1 Ch. 693; Ricketts v. Ricketts,
(1911) 103 LT 278 .
75 Re. Williams’s Settlement, Williams v. Williams , (1911) 1 Ch. 441. In re Holford, Holford
v. Holford , (1894) 3 Ch. 30.
76 Theobold on Wills, 8th Ed., p. 661; Lloyd v. Lloyd , (1852) 21 LJ Ch. 596 : 61 ER 338; Parker v. Sowerby ,
(1853) 1 Drew 488 : 61 ER 539.
77 Re. Campbell, Cooper v. Campbell , (1919) 88 LJ Ch. 239.
78 Parker v. Sowerby , (1853) 1 Drew 488 : 61 ER 539; Vorley v. Richardson , (1856) 8 De

G.M. & G. 126 : 44 ER 337.
79 Hanson v. Graham , (1801) 6 Ves. 239 : 31 ER 1030; In re Hart’s Trust , (1858) 3 De G &
J. 195 : 44 ER 1243.
80 In re Parker, Barker v. Barker , (1880) 16 Ch. D. 44; Leake v. Robinson , (1817) 2 Mer.
363 : 35 ER 979; In re Hunter’s Trust , (1865) 1 Eq. 295; Lloyd v. Lloyd , (1852) 21 LJ Ch. 596 : 61 ER 338.
81 Sansbury v. Read , (1805) 12 Ves. 75 : 33 ER 29.
End of Document
Darashaw Vakil
S. 23.
Where, on a transfer of property, an interest therein is to accrue to a
specified person if a specified uncertain event shall happen, and no time is
mentioned for the occurrence of that event, the interest fails unless such
event happens before, or at the same time as, the intermediate or precedent
interest ceases to exist.
End of Document
S. 23. (A)
Darashaw Vakil
COMMENTS

section 124 of the Indian Succession Act, 1925 , which runs as under :—
"124. Bequest contingent upon specified uncertain event, no time being mentioned for its
occurrence — Where a legacy is given if a specified uncertain even shall happen and no time is mentioned in the Will for
the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund
bequeathed is payable or distributable."
Illustrations
(i) A legacy is bequeathed to A , and, in case of his death, to B . If A survives the testator, the legacy to B
does not take effect.
(ii) A legacy is bequeathed to A , and, in case of his death without children, to B . If A survives the testator or
dies in his lifetime leaving a child, the legacy to B does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B . A attains
the age of 18. The legacy to B does not take effect.
(iv) A legacy is bequeathed to A for life, and after his death to B , and, "in case of B ’s death without children",
to C . The words "in case of B ’s death without children" are to be understood as meaning "in case B dies
without children during the lifetime of A ".
(v) A legacy is bequeathed to A for life, and, after his death to B , and, "in case of B ’s death", to C . The words
"in case of B ’s death" are to be considered as meaning "in case B dies in the lifetime of A ".
Scope. —This section is based on the principle of English Law for the creation of a contingent
remainder. "Of the rules required for the creation of a contingent remainder the first and principal is that the seisin
or feudal possession must never be without an owner and this rule is sometimes expressed as follows :—That
every contingent remainder of an estate of freehold must have a particular estate of freehold to support it."
Accordingly a transfer to A for life and after his decease and one day to B , is void, for the moment that A’s estate is
Page 2 of 3
S. 23. (A)
determined by death, the possession is not to belong to B till one day afterwards. The consequence is that the gift
of the future estate intended to be made to B is absolutely void, as for one day the possession is without an owner.
"As a corollary to the rule above laid down, arises another proposition, frequently itself laid down as a distinct rule,
viz. , that every contingent remainder must vest or become an actual estate during the continuance of a particular
estate which supports it or eo instanti that such particular estate determines". 82
One M executed a settlement deed and by the deed the properties were settled for life in favour of B , if B had any
children they have to take the properties absolutely and if B had no children the properties were to vest after the life
time of B , in heirs of M . M by a subsequent deed during life time of B settled the properties on B . It was held that
by virtue of the first deed a contingent interest had been created on the heirs of M , as there was no vested
remainder in M , as such he had no right to execute the subsequent document before the death of B , which would
have the effect of conveying an absolute right on B . 83
The principle is that if the subsequent interest is to take effect upon the failure of the prior interest and the prior
interest is against the law and so invalid, the subsequent interest would also fail. 84
Contingent interest does not necessarily require a prior interest for its support and does not, always, take effect
after the termination of a prior interest. The case of subsequent contingent interest, arising on the termination of a
prior interest, is separately dealt with in the statute in Section 23 and, obviously, therefore, that type is not
exhaustive of contingent interest as a whole. 85
Contingent bequest. —These are dealt with under Sections

section 124 and
125 of the
Indian Succession Act, 1925 , of which the former section corresponds with
Section 23 of the Transfer of Property Act . Under the former section it is necessary that the event should
happen "before the period when the fund is bequeathed is payable or distributable." While under the
Transfer of Property Act such event must happen "before or at the same time as the intermediate or
preceding interest ceases to exist." A testamentary disposition by a Hindu of his residuary estate to his grandson
who may be born within ten years after his death was held invalid, for until then the estate would not vest in any
person.86 A Hindu testator left three sons, the eldest of full age and the other two minors. He directed, "my three
sons are entitled to enjoy all the moveable and immovable properties left by me equally. Any one of the sons being
sonless, the surviving sons shall be entitled to all the properties equally." It was held that these words gave a legacy
to the survivors contingently on the happening of a specified uncertain event which had not happened before the
property bequeathed was distributable, the period of distribution being the time of the testator’s death. 87 A Hindu
by his will provided that his daughters’ and brother’s daughters should be maliks and come in possession in equal
shares of the property. In the event of his daughter or brother dying childless, "the shares shall devolve in equal
shares on the surviving daughters." It was held that the expression maliks ordinarily implied an absolute gift and
that the provision of survivorship applied only to the case of a daughter dying during the lifetime of the testator and
did not take effect in the present case, the daughter whose share was in question having died several years after
the testator. 88 A Parsi testator bequeathed certain legacies to his son N and directed that in the event of his dying
after the death of the testator, without marrying or if married without an heir, his share should revert to the surviving
sisters or their heirs. The testator died and N claimed the legacies absolutely. Upholding his contention, it was
observed that no time was fixed for the happening of the event and the mere fact that the testator contemplated that
in the ordinary course of nature his son would survive him and die after him would not justify the Court in concluding
that the testator had fixed the time for the occurrence of that event. 89
Acceleration of remainder on failure of life estate. —A gift in remainder expectant on the termination
of an estate for life, does not fail, but is accelerated by reason of the gift of such prior life estate not taking effect. 90
Page 3 of 3
S. 23. (A)
Child "en ventre sa mere." —Such a child is considered in law as actually born for the purpose of
taking any benefit to which if born, he would be entitled. 91
Transfer to such of certain persons as survive at some period not specified.
82 WILLIAMS on Real Property , 20 Ed., pp. 351-353.
83 Kannappa Chettiar v. Kuppuswami Naidu ,

AIR 1975 Mad 256 [
LNIND 1974 MAD 235 ] (257) :
1976 Hindu LR 275 .
84 Bhuth Nath v. Kalipada Mondal ,

AIR 1982 Cal 534 [
LNIND 1982 CAL 183 ] (536) : 1982 East LR 151.
85 Indralok Studio Ltd. v. Santi Debi ,

AIR 1960 Cal 609 (615) (DB).
86 The Official Assignee of Madras v. Vedavalli ,

AIR 1926 Mad 936 [
LNIND 1925 MAD 254 ].
87 Norendra Nath v. Kamal Basini ,

(1896) Cal 563 : 23 IA 18.
88 Lala Ramjewan v. Dal Koer ,

(1897) 24 Cal 406 .
89 Nowroji Padamji v. Putlibai , (1913) 37 Bom 644.
90 Adjudhia v. Rakhman ,
(1884) 10 Cal 182 : 11 IA 1.
91 Re Wilmot’s Trust, Moore v. Wingfield , (1903) 2 Ch. 401.
End of Document
Darashaw Vakil
S. 24.
Where, on a transfer of property, an interest therein is to accrue to such of
certain persons as shall be surviving at some period, but the exact period is
not specified, the interest shall go to such of them as shall be alive when the
intermediate or precedent interest ceases to exist, unless a contrary
intention appears from the terms of the transfer.
Illustration
A transfers property to B for life, and after his death to C and D , equally to be divided
between them, or to the survivor of them. C dies during the life of B . D survives B . At B ’s death the property passes to D .
End of Document
S. 24. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —This corresponds to Sections

section 125 and
112 of the
Indian Succession Act, 1925 , which run as under :—
"125. Bequest to such certain persons as shall be surviving at some period not specified— Where a
bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the
legacy shall go to such of them as are alive at the time of payment of distribution, unless a contrary intention appears by the
Will.
Illustrations
(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A
and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B
survives the testator, it goes to B .
(ii) Property is bequeathed to A for life, and, after his death, to B and C , to be equally divided between them,
or to the survivor of them. B dies during the life of A ; C survives A . At A ’s death the legacy goes to C .
(iii) Property is bequeathed to A for life, and after his death to B and C , or the survivor, with a direction that, if
B should not survive the testator, his children are to stand in his place. C dies during the life of the testator.
B survives the testator, but dies in the lifetime of A . The legacy goes to the representative of B .
(iv) Property is bequeathed to A for life, and, after death, to B and C , with a direction that, in case either of
them dies in the life-time of A , the whole shall go to the survivor. B dies in the lifetime of A . Afterwards C
dies in the lifetime of A . The legacy goes to the representative of C ."
"112. Bequest to person by particular description who is not existence at testator’s death. —Where a
bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who
answers the description, the bequest is void.
Page 2 of 4
S. 24. (A)
Exception . —If property is bequeathed to a person described as standing in a particular

degree of kindred to a specified individual. but his possession of it is deferred until a time later then the death of the
testator, by reason of a prior bequest or otherwise, and if a person answering the description is alive at the death of the
testator, or come into existence between that event and such later time, the property shall, at such later time, go to that
person, or, if he is dead, to his representatives.
Illustrations
(i) A bequeaths 1, 000 rupees to the eldest sone of B . At the death of the testator, B has no son. The
bequests is void.
(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C . At the death of the
testator, C had no son. Afterwards, during the life of B , a son is born to C . Upon B ’s death the legacy
goes to C ’s son.
(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C . At the death of testator,
C had no son. Afterwards, during the life of B , a son, named D , is born to C . D dies, then B dies. The
legacy goes to the representative of D .
(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son C . Up to the death
of B, C has had no son. The bequest to C ’s eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C , to be paid to him after the death of B . At the death of
the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B ’s death
C ’s son is entitled to the 1,000 rupees."
General rule. —Words of survivorship are to be referred to the period of division or enjoyment unless
there be an intention to the contrary. 1 English authorities shew that the same principles apply in construing a deed
as in construing a will. 2 In construing survivorship clauses, the difficulty is to ascertain the time at which the
survivors are to be determined. In case of a gift following a life-interest, the survivors are determined on the death of
the tenant for life. If there be several tenancies for life, the time to determine is when the last tenant for life dies. The
absence of a gift over of the entire fund on the failure of issue of all the tenants for life, is not of itself conclusive to
shew that the words "survivors or survivor" are to be read in their strict literal sense. 3 There are, however, cases 4
which attribute to the words "survivors or survivor" the meaning "others or other." The Courts are reluctant to go so
far 5 though with the assistance of an ultimate gift over, they have frequently done so.
The device which gives absolute right to a legatee in existence after the death of the widow, who is given a limited
interest therein cannot be said to be one in contravention of the principle of Hindu Law. 6
Time of division. —The section lays down the rule of construction of gifts to survivors who outlive the
happening of a particular event or the death of a particular person.
Gift over to survivor. —The general rule as laid down in Cripps v. Wolcott 7 is that where
there is a gift to A for life with remainder to A , B and C and to the survivors or survivor, the survivorship is
ascertained at the death of the tenant for life. In White v. Baker , 8 Turner, L.J., says : "Where there is a bequest to
A for life and after his death to B and C or the survivor of them, some meaning must of course be attached to the
Page 3 of 4
S. 24. (A)
words "the survivor." They may refer to any one of three events—to one of the persons named surviving the other,
to one of them only surviving the testator, or to one of them only surviving the tenant for life, and in the absence of
any indication to the contrary they are taken to refer to the latter event, as being the more probable one to have
been referred to." The above rule and passage were referred to by Cozens-Hardy, M.R., in In re Poultney ,
Poultney v. Poultney , 9 where the testator devised his estate to his wife for life and from and after her death equally
between his eight children named in the will. The last clause in the will provided, "I direct that in case of the death of
one or more of my children that their equal share or shares are to be equally divided between the survivors." The
eight named children survived the testator, but one of them died in the widow’s lifetime, leaving children. Held only
those children who survived the widow were entitled to share in the testator’s estate.
Wills. —In case of testamentary disposition the law is as prescribed in Section

section 125 of the Indian Succession Act, 1925 . Of the four illustrations to that section, in (i) the time of
payment is the death of the testator when the will comes into operation, in (ii) on the termination of the life estate.
Illustration (ii) is similar to the illustration to
Section 24 of the Transfer of Property Act, 1882 . The rule of construction in the section does not apply
to illustrations (iii) and (iv).
Unless a contrary intention appears. —The rule in the section does not apply where an intention to
the contrary is expressed. That is, the survivorship has no reference to the time of division but to some other period.
Exception to rule. —Under an express gift over after an interest for life by words importing a joint
interest, the survivorship is to be referred to the period of distribution. Where a bequest is to A for life and after his
death to B and C and in case either of them dies in the lifetime of A , the whole to the survivor, it is plain that the
words in their natural import refer to the one surviving the other. 10
Presumption of survivorship. —There is no presumption as to survivorship. The presumption under

Section
section 108 of the Indian Evidence Act, 1872 , that a man not heard of for some years is dead, is at the
time when the question is raised and not at some antecedent date.11 A similar view was expressed by the Burma
Chief Court 12 and accepted by the Privy Council.
Conditional transfer.
1 Cripps v. Wolcott , (1819) 4 Mad 11 : 56 ER 613.
2 Cole v. Allcot , (1906) 1 Ch. 47.
3 Powell v. Hellicar , (1919) 1 Ch. 138.
4 In re Friends Settlement, Cole v. Allcot , (1906) 1 Ch. 47; Lucena v. Lucena , (1877) 7
Ch. 255; In re Billham, Buchanan v. Hill , (1901) 2 Ch. 169.
Page 4 of 4
S. 24. (A)
5 King v. Frost,
(1890) 15 AC 548 .
6 Rajgopalachari v. Venkat Chudamma ,

AIR 1956 Hyd 153 (158) :
ILR 1956 Hyd 107 .
7 (1819) 4 Mad 11 : 56 ER 613.
8 (1860) 2 De. G.F. & J. 55 : 45 ER 542.
9 (1912) 2 Ch. D. 541.
10 White v. Baker , (1860) 2 De. G. F. & J. 55 : 45 ER 542.
11 Narki v. Lal Sahu ,

(1910) 37 Cal 103 ; Fani Bhushan v. Surjya Kamta Roy ,
(1907) 35 Cal 25 .
12 Moolla Cassim v. Moolla Abdul ,

(1905) 33 Cal 173 .
End of Document
Darashaw Vakil
S. 25.
An interest created on a transfer of property and dependent upon a
condition fails if the fulfilment of the condition is impossible, or is forbidden
by law, or is of such a nature that, if permitted, it would defeat the provisions
of any law, or is fraudulent, or involves or implies injury to the person or
property of another, or the Court regards it as immoral or opposed to public
policy.
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.
End of Document
S. 25. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —This corresponds to Sections

section 126 and
127 of the
Indian Succession Act, 1925 , which run as under:—
"126. Bequest upon impossible condition. —A bequest upon an impossible condition is void.
Illustrations
(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition that he shall marry A ’s daughter. A ’s daughter was dead at the
date of the will. The bequest is void."
"127. Bequest upon illegal or immoral condition.— A bequest upon a condition, the
fulfillment of which would be contrary to law or to morality, is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall murder C . The bequest is void.
(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void."
Page 2 of 11
S. 25. (A)
Condition. —The word "condition" is not defined in the Act. Being a term in the contract, it is the
essence of it. Conditions have been classified in a variety of ways but we are concerned with conditions precedent
and conditions subsequent. This and the following sections relate to conditions. In the case of a condition precedent
the performance of the condition is essential for the transfer to operate. 13 Till then there is no vesting, the transfer
is suspensory. It is a description of the event on which the transferee is to take. A condition subsequent is one on
the non-performance of which an estate vested is devested. 14 Section 25 treats of conditions precedent and
Section 29 of conditions subsequent. In the former case the non-performance of the condition causes the transfer to
fail. In the latter case the non-performance devests the estate which passes to another. In the former case
substantial compliance is enough, according to Section 26, while in the latter case strict compliance is necessary,
according to Section 29.
The principle is that if the subsequent interest is to take effect upon the failure of the prior interest and the prior
interest is against the law and so invalid, the subsequent interest would also fail. 15
If a condition attached to a devise is capable of being construed either as a condition precedent or as a condition
subsequent the Court will prefer the latter construction. 16 A similar construction would apply to a deed.
Continuing conditions. —These belong to the group of conditions subsequent. A condition requiring a
transferee to reside in a particular house belongs to his class. A testatrix made a charitable bequest and amongst
other conditions made an "abiding condition" that the black gown should be worn in the pulpit. It was held that the
condition was subsidiary to the main charitable object and as the performance had been shown to be impracticable,
the condition might be dispensed with. 17
Time for performance. —The section is silent as to the time within which the condition must be
performed. It is submitted that it must be performed within a reasonable time before it can be imputed to the
transferee that he had failed to perform. 18
When the period is prescribed the Court may enlarge the time and in all cases that lie in compensation it may
dispense with the time even in the case of a condition precedent. 19 A testator gave a legacy to A in the event of B
dying unmarried on the express condition that he should, within three years from the testator’s death, pay to the
executors all moneys due from him to the testator. Held that the condition was substantially performed by payment
after the expiration of three years and the legacy was payable. 20 So where a testator bequeathed a legacy to his
daughter on the express condition that she should settle upon certain trusts of the will a sum to which she was
entitled within a year of his death, it was held that the limit of time was not of the essence or substance of the
condition and it was sufficiently complied with by the execution of a settlement within the year. 21
There is no general rule in computing time from an act or an event, that the day is to be inclusive or exclusive,
depending upon the reason of the thing, according to the circumstances. 22 Under the
Indian Succession Act, 1925 , when time is specified, failure to perform within the specified time amounts
to non-performance of the condition. According to Section 128, illustration (vii), a legacy is bequeathed to A if he
executes a certain document within the time specified in the will. The document is executed by A within a
reasonable time but not within the time specified in the will. A has not performed the condition and is not entitled to
receive the legacy.
Lunacy. —The Court should act for the lunatic to perform a condition as if he were a person of sound
Page 3 of 11
S. 25. (A)
mind and guided by reasonable motives. 23
Condition distinguished from election. —Election is treated in Section 35 of this Act. The rule of
election applies whether the transferor does or does not believe that which he professes to transfer to be his own.
Under Section 26 a man may in making a transfer of his property impose upon the transferee a condition that he
shall dispose of his property in a particular way. In this case the transferor must have known that what he was
disposing of was not his own. The main distinction between the two is that in the former case the transfer fails on
non-compliance, in the latter case the disappointed transferee is compensated.
Conditional conveyances. —The section deals with interests created on a transfer dependent upon a
condition. It enacts that such a transfer shall fail when the condition is such, that if it formed part of the
consideration for an agreement, the agreement would be void. Under Section section 23 and other cognate
sections of the
Indian Contract Act, 1872 , the condition referred to in the section is what is known as a condition
precedent, till the fulfilment of which, the operation of the transfer is suspended. A condition must be performed
according to the intention of the parties. It must be actually performed, not covinously or in an illusory way.
Presumption. —Where a contract is capable of two constructions, the one making it valid and the other
void, it is clear law that the first ought to be adopted. 24 The law presumes against illegality. Those who wish to
prove illegality must establish it. 25 There are two senses in which the word unlawful is commonly used, though
somewhat inaccurately. There are some contracts to which the law will not give effect and, therefore, although the
parties may enter into what, but for the element which the law condemns, would be perfect contracts, the law would
not allow them to operate as contracts, notwithstanding that in point of form the parties have agreed. Some
contracts may be void on the ground of immorality, some on the ground that they are contrary to public policy as, for
example, in restraint of trade, and contracts so tainted, the law will not lend its aid to enforce. It treats them as if
they had not been made at all. 26
Ignorance of condition. —What of notice of the condition does not relieve the transferee of the
consequences, particularly where there is a gift over. It has been held that no duty is cast on an executor to give
notice to a legatee of the condition of a legacy, 27 but this was doubted in a subsequent case. 28
Impossible condition. —
Section 56 of the Indian Contract Act, 1872 , enacts that an agreement to do an act impossible in itself is
void. Hence where the subject-matter of a contract is liable to destruction on a contingency which has already
happened, the contract is void.29 A bequest dependent on a condition made impossible of fulfilment by the testator
cannot take effect. 30 In English Law a distinction prevails when impossibility is brought about by the act or default of
the testator, by excusing performance in case of personality, 31 but not in case of realty. 32
Forbidden by law. —These would be acts declared unlawful by statute, criminal or otherwise, such as
letting premises to a prostitute for an illegal purpose, 33 or to a person for publication of blasphemous lectures. 34
Defeat the provisions of the law. —These would be acts which tend to prevent the course of justice,
such as stifling prosecutions and compounding non-compoundable offences. Any contract having a tendency,
however slight, to affect the administration of justice, is illegal and void, 35 such as securing higher than standard
rent, 36 the transfer of occupancy rights prohibited by statute, 37 a lease of a farm to retain opium without the
Collector’s permission, 38 an agreement in contravention of the
Page 4 of 11
S. 25. (A)
Excise Act , 39 an assignment by a debtor to defeat the provisions of the Insolvency Law, 40 a
usufructuary mortgage in contravention of the Tenancy Act, 1901, 41 a bond given by an insolvent after personal
discharge to his creditor in consideration of the latter not opposing his final discharge, 42 a nominal sale deed and
rent note passed by the defendant to his pleader to indemnify the latter against loss which he might suffer under a
bail bond. 43 The word "any law" in the phrase "would defeat the provisions of any law" has reference to substantive
and not to adjectival law. 44 Section
section 24 of the Indian Contract Act, 1872 is not applicable to transfers of immovable property, see.45
Fraudulent. —As to acts or omissions declared fraudulent, see. 46
Involves or implies injury to the person or property of another. —A familiar instance of this is a clog
on redemption. A contract to give a son in adoption in consideration of an annual allowance to the natural parents
involves an injury to the person and property of the adopted son. 47
Court regards it as immoral. —Contracts not prohibited by positive law nor adjudged illegal by
precedent, may nevertheless be void as against principles. 48 In English Law a deed executed in consideration of
past cohabitation is valid, 49 though not for future cohabitation. 50 In India, past cohabitation is not a good
consideration for the transfer of property. 51 Contracts for letting premises to prostitutes are void. 52 No distinction
can be made between an illegal and immoral purpose. The rule which is applicable to the matter is ex turpi causa
non oritur actio , and whether it is an immoral or illegal purpose in which the plaintiff has participated, it comes
equally within the maxim and the effect is the same. No cause of action can arise out of either one or the other. 53
Further, there is a distinction between an immoral consideration for a gift and an immoral condition which is
subsequently attached to a gift. In the former case the transfer fails altogether, in the latter the gift remains
unaffected. 54
Court regards it as opposed to public policy. —Public policy is something which is really part of the
common law of the land and does not depend on statute. 55 It is a variable thing, fluctuating with the times. 56 It is
well settled that when it is apparent on the face of the contract that it is unlawful, it is the duty of the Judge himself
to take the objection and that too, whether the parties take or waive the objection. 57 Any contract or engagement
having a tendency, however slight, to affect the administration of justice, is illegal and void. Public policy is that
principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or
against the public good. 58 The following bonds or agreements are opposed to public policy :—to obtain or enforce
rights resulting from a man’s own crime, 59 that which creates an interest in death, 60 to use undue influence, 61
trading with enemy in time of war, 62 sale of public offices, 63 an assignment of salaries and pensions, 64 wagering
agreements, 65 agreement relating to marriage such as restraint on marriage, 66 marriage brocage, 67 agreement in
fraud of marriage, 68 concealment of adultery, 69 compromise of divorce suit, 70 or to obtain a divorce, 71 an
agreement before marriage to live separate or apart after marriage, 72 or to marry on obtaining a decree of nullity of
existing marriage, 73 or a promise to marry after decree nisi or before decree absolute, 74 or licence to commit
adultery. 75 A contract entered into by a Hindu living in Assam by which it is agreed that upon the happening of a
certain event a marriage is to become null and void is contrary to public policy. 76 Restraint of trade, 77 fraud on
bankruptcy laws, 78 are opposed to public policy.
Illustrations to the section. —(a) and (b) are instances of an impossible condition, (c) and (d) of
conditions the fulfilment of which would be contrary to law or to morality.
Bequests. —A bequest upon an impossible condition or upon a condition, the fulfilment of which would
be contrary to law or to morality is void. These are dealt with in Sections
section 126 and
Page 5 of 11
S. 25. (A)
127 of the
Indian Succession Act, 1925 , the illustrations of which are similar to illustrations in the present section.
Indian Contract Act, 1872 .—Just as a conditional transfer depends upon a lawful condition, so every
agreement depends upon a consideration or object which is lawful. Where they are unlawful, the agreements are
void. Such agreements are dealt with in Section
section 26 of the Indian Contract Act . Other instances of void agreements in the same Act are referred
to inSections 27, 28, 30, 36 and 56.
Charitable gift. —Where a charitable gift is subject to a condition precedent, the gift fails if the condition
is not satisfied. 79
Vesting of legacy. —Under Section

section 128 of the Indian Succession Act of 1925, a condition imposed by a will before the legatee take
a vested interest is considered to have been fulfilled if substantially complied with.
Condition when not complied with. —In case of a condition precedent, the performance of it
subsequent to the actof event is no performance and this is rendered clear by illustration (v) of Section
section 128 of the Indian Succession Act, 1925 . Where the vendee has undertaken to recover
possession of the property from his trespasser for himself and the vendor but failed to fulfill the undertaking, the
sale would be void at the option of the vendor.80
Capricious retraction of consent. —This does not deprive the legatee of his benefit, according to
illustration (iv) of the above section.
Champerty and maintenance. —Maintenance is the unlawful meddling in other people’s quarrels by
rendering assistance either with money or otherwise from other than charitable motives. 81 Champerty is the
unlawful undertaking to divide the land or other matter sued for, in which the champertor has no personal interest
and which he is to carry on or defend at his own expense. 82 The English laws of maintenance and champerty are
not enforced as specific laws in India either in the mofussil or in Presidency towns. The leading case on the subject
is Ram Coomar v. Chunder Canto . 83 The Privy Council held that an agreement to supply funds to carry on a suit
in consideration of having a share in the property if recovered is not necessarily opposed to public policy, unless
extortionate or made for the purpose of gambling in litigation.
An assignment of property, valued at Rs. 3 lakhs by the next reversioners for Rs. 52,600, of which Rs. 600 was paid
at the time of execution, was held not contrary to public policy, 84 nor where the lender had a share in the property
sued for if recovered. 85 So also a transaction which was a present transfer by the vendor of a moiety of his interest
in the taluk and where it appeared that without such assistance the vendor could not have prosecuted his claim to
the estate, 86 was upheld. In both countries there is no distinction with regard to fruits of success in the action and
whether the plaintiff obtains the same by compromise or by a decree or verdict in his favour. 87 Neither an
agreement to advance money in defence of an existing possession of property, 88 nor the purchase of an equity of
redemption, however speculative, is champertous. 89 Acceptance of an inadequate price on account of need does
not render the transaction invalid as being champertous. 90 But a conveyance of property tending to foster gambling
in litigation is void, 91 so also a bond of Rs. 25,000 in consideration of the obligee agreeing to defray the expenses
of an appeal to the High Court and the obligor only receiving Rs. 3,700, was held unenforceable. The Court,
Page 6 of 11
S. 25. (A)
however, gave a decree for the actual amount advanced. 92 A stipulation by an attorney to retain one moiety of
what might be recovered absolutely and out of the other moiety to repay himself costs and advances made and pay
the residue to the client was held void. 93
Fulfilment of condition precedent.
13 Lester v. Garland , (1808) 15 Ves. 248 : 33 ER 748; Re. Noruse, Hampton v. Noruse ,
(1899) 1 Ch. 63.
14 Popham v. Bamfield , (1682) 1 Vern. 167 : 23 ER 391.
15 Bhuth Nath v. Kalipada Mondal ,

AIR 1982 Cal 534 [
LNIND 1982 CAL 183 ] (536) : 1982 East LR 151.
16 In re Greenwood, Goodhart v. Woodhead , (1903) 1 Ch. 749.
17 In re Robinson, Wright v. Tugwell , (1923) 2 Ch. 332.
18 Ganendra Mohun Tagore v. Rajah Juttendro Mohun Tagore , (1874) 22 W.R. 377 : 1 IA
387, 397.
19 Woodman v. Blake , (1691) 2 Vern. 222 : 23 ER 743.
20 Paine v. Hyde , (1841) 4 Beav. 468 : 49 ER 420.
21 Pickard, Pickard v. Waters , (1920) 1 Ch. 596; Re. Goodwin, Anislie v. Goodwin , (1924)
2 Ch. 26.
22 Lester v. Garland , (1808) 15 Ves. 248 : 33 ER 748.
23 In re Charles William Hilton, Earl of Sifton , (1898) 2 Ch. 378.
24 Norwich Corporation v. Norfolk Railway Company,

(1855) LJQB 105 : 119 ER 143.
25 Hire Purchase Furnishing Co. v. Richens,

(1887) 20 QBD 387 .
26 Mogul Steamship Co. v. McGregor, Gow & Co .,

(1892) AC 25 .
Page 7 of 11
S. 25. (A)
27 In re Lewis, Lewis v. Lewis , (1904) 2 Ch. 656.
28 In re Mackay, Mackay v. Gould , (1906) 1 Ch. 25.
29 Hitchcock v. Giddings , (1817) 4 Price 135 : 146 ER 418; Strickland v. Turner , (1852) 22
LJ Ex. 115 : 155 ER 919; Couturier v. Hastie , (1852) 25 LJ Ex. 253 : 10 ER 1065; The salvadar (No. 1),
(1909) 25 TLR 384 , 385.
30 Rajendra Lal v. Mrinalini ,

(1921) 48 Cal 1100 .
31 Darley v. Langworthy , (1774) 3 Bro. P.C. 359 : 1 ER 1369; Gath v. Burton , (1839) 1
Beav. 478 : 48 ER 1025; Walker v. Walker , (1860) 29 LJ Ch. 856 : 45 ER 619.
32 Re. Turton, Whittington v. Turton , (1926) Ch. 96.
33 Gas Light & Coke Co. v. Turner , (1840) 9 LJ Ex. 336 : 133 ER 127.
34 Cowan v. Milbourn , (1867) 36 LJ Ex. 124.
35 Egerton v. Brownlow , (1853) 23 LJ Ch. 348; see Section

section 28, Indian Contract Act, 1872 .
36 Saleh Abraham v. Maneckji Cowasji ,

(1923) 50 Cal 491 .
37 Durga v. Jhinguri ,
(1885) 7 All 878 .
38 Raghunath v. Nathu Hiru , (1895) 19 Bom 626.
39 Behari Lall v. Jagodish Chunder ,

(1904) 31 Cal 798 .
40 Jaffer Meher Ali v. Budge Budge Jute Mills Co .,

(1907) 34 Cal 289 .
41 Ram Sarup v. Kishan Lal ,

(1907) 29 All 327 ; Madon Lal v. Muhammad Ali ,
(1906) 28 All 696 .
42 Naoroji v. Kazi Sidick , (1896) 20 Bom 636.
43 Laxmanlal v. Mulshankar , (1908) 32 Bom 449.

Page 8 of 11
S. 25. (A)
44 Hukum Chand v. Taharunnessa ,

(1889) 16 Cal 504 .

(1930) 52 All 342 .
46 See Section
47 Esham Kishar v. Haris Chandra , (1874) 13 Beng LR 42 App.; Narayan Laxman v.

Gopalrao Trimbak , (1922) 46 Bom 908.
48 Jones v. Randall , (1774) 1 Corp. 37 : 98 ER 954, contra in Feder v. Mildmay,

(1937) 53 TLR 885 .
49 Re Henderson, Henderson v. Bird,

(1889) 5 TLR 374 ; Re. Wootan, Isaacson Sanders v. Smiles,
(1904) 21 TLR 89 .
50 Ford v. De Pontes , (1861) 30 Beav. 572 : 54 ER 1012; Phillips v. Probyn , (1899) 1 Ch.
811; Thasi Muthu Kannu v. Shunmugavelu , (1905) 28 Mad 413 ; Kandaswami v. Narayanswami,
(1923) 45 MLJ 551 [
LNIND 1923 MAD 87 ] ; Alice Mary Hill v. William Clark ,
(1907) 25 All 266 ; Gumna v. Ram Chandra Rao ,
(1925) 47 All 619 .
51 Husseinali v. Dinbai ,
(1923) 25 Bom LR 252 [
LNIND 1923 BOM 23 ]; Kisondas v. Dhondu , (1920) 44 Bom 542.
52 Appleton v. Campbell , (1826) 2 C. & P. 347;

Ritchie v. Smith,
(1848) 6 CB 462 ; Upfil v. Wright,
(1911) 1 KB 506 ; Bani Mancharam v. Regina Stanger , (1908) 32 Bom 581 ; Choga
Lal v. Piyari ,
(1909) 31 All 58 .
53 Pearce v. Brooks , (1866) 35 LJ Ex. 134.
54 Gumna v. Ram Chandra Rao ,

(1925) 47 All 619 ; Thasi Muthu Kannu v. Shunmugavelu Pillai , (1905) 28 Mad 413
; Ram Sarup v. Bala ,
(1883) 6 All 613 .
55 In the Estate of Hall, Hall v. Knight & Baxter , (1914) 1 P. 1.
56 Naylor Benzon & Co. v. Krainische Industrie Gesellischaft,

(1918) 1 KB 331 ; Janson v. Driefontein Consolidated Mines Ltd .,
(1902) AC 487 ; Re. Bowman, Secular Society Ltd. v. Bowman , (1915) 2 Ch.
Page 9 of 11
S. 25. (A)
447; Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co .,

(1894) AC 535 .
57 Montefiore v. Menday Motor Components Co .,

(1918) 2 KB 241 .
58 Egerton v. Brownlow (Earl) , (1853) 23 LJ Ch. 348 : 10 ER 359.
59 In the Estate of Crippen, (1911) P. 108.
60 Debenham v. Ox , (1749) 1 Ves. Sen. 276 : 27 ER 1029.
61 Beckley v. Newland , (1723) 2 P. Wms. 182.
62 Janson v. Driefontein Consolidated Mines Ltd .,

(1902) AC 484 .
63 Blackford v. Preston , (1799) 8 Term Rep. 89.
64 Liverpool Corporation v. Wright , (1859) 28 LJ Ch. 868 : 70 ER 461.
65 See Section
66 Lowe v. Pears , (1770) 4 Burr. 2225: 98 ER 160; see Section

67 Roberts v. Roberts , (1730) P. Wms. 66 : 24 ER 971.
68 Peyton v. Bladwell , (1684) 1 Vern. 240 : 23 ER 440.
69 Brown v. Brine, (1875) LJ QB 129.
70 Gibbs v. Hume , (1861) 10 W.R. 38; Weekes v. Weekes,

(1905) 21 TLR 227 .
71 Bai Vijli v. Nansa Nagar , (1886) 10 Bom 152.
72 Brodie v. Brodie , (1917) P. 271.
73 Siveyer v. Allison,
(1935) 2 KB 403 .
Page 10 of 11
S. 25. (A)
74 Fender v. Mildmay,
(1937) 52 TLR 102 .
75 Hyman v. Hyman,
(1929) AC 601 .
76 Sitaram v. Ahearee , (1873) 11 Beng LR 129.
77 Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co.,

(1896) AC 535 ; see Section
78 Sections 56 and 55, The Presidency Towns Insolvency Act, 1909; Sections section 54 and 53, The
Provincial Insolvency Act, 1920 .
79 Santona Roy v. The Advocate General of Bengal, (1920) 32 CLJ 453.
80 AIR 1955 NUC (All) 2767 (DB).
81 Anderson v. Radclifft
(1860) 29 LJQB 128 .
82 Stanley v. Jones , (1831) 1 LJ (O.S.) C.P. 51 : 131 ER 143.
83
(1877) 2 Cal 233 : 4 IA 23; Fischer v. Kamala Naicker , (1860) 8 MIA 170 ;
Chedambara Chetty v. Renga Krishna , (1878) 13 Beng LR 509 : 1 IA 241; Ragunath v. Nil Kanth ,
(1893) 20 Cal 843 : 20 IA 112; Achal Ram v. Kazim Husain ,
(1905) 27 All 271 : 32 IA 113; Ramanamma v. Viranna,
(1931) 61 MLJ 94 P.C.
84 Bhagwat Dayal v. Debi Dayal ,

(1908) 35 Cal 420 : 35 IA 48.
85 Rajah Mohkam Singh v. Rajah Rup Singh ,

(1893) 15 All 352 .
86 Achal Ram v. Kazim Husain ,

(1905) 27 All 271 : 32 IA 113.
87 Glegg v. Bromley,
(1912) 3 KB 479 ; Vatsavaya v. Poosapati,
(1924) 47 MLJ 93 : 52 IA 1.
88 Damodhar Madhavji v. Kahandas Narandas , (1871) 8 Bom HCR. 1.

Page 11 of 11
S. 25. (A)
89 Gopal Ramchandra v. Gangaram , (1890) 14 Bom 72.
90 Gurusami v. Subbraya , (1889) 12 Mad 118 ; Bhagwat Dayal v. Debi Dayal ,

(1908) 35 Cal 420 : 35 IA 48; Gossain Ramdhan v. Gossain Dulamir ,
(1909) 14 CWN 191 .
91 Debi Dayal v. Bhan Pertab ,

(1904) 31 Cal 433 .
92 Chunni Kuar v. Rup Singh ,

(1889) 11 All 57 .
93 Grose v. Amirtamayi Dasi , (1869) 4 Beng LR 11; Rajah Mohkam Singh v. Rajah Rup
Singh ,
(1893) 15 All 352 ; Tarasoonduree v. The Court of Wards,
(1873) 20 WR 446 .
End of Document
Darashaw Vakil
S. 26.
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.
Illustrations
(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.
(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.
End of Document
S. 26. (A)
Darashaw Vakil
COMMENTS

section 128 of the Indian Succession Act, 1925 , which runs a sunder :—
"128. Fulfillment of condition precedent to vesting of legacy.— Where a Will imposes a condition to be
fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have
been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B , C , D and E. A marries
with the written consent of B , C is present at the marriage. D sends a present to A previous to the
marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled
the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B , C and D. D dies. A
marries with the consent of B and C. A has fulfilled the condition.
(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B , C and D. A marries in
the life time of B , C and D with the consent of B and C only. A has not fulfilled the conditions.
(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B , C and D. A obtains the
unconditional assent of B , C and D to his marriage with E. Afterwards B , C and D capriciously retract their
consent. A marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B , C and D. A marries
without the consent of B , C and D, but obtains their consent after the marriage. A has not fulfilled the
condition.
(vi) A makes his Wll whereby he bequeaths a sum of money of B if B shall marry with the consent of A’s
executors. B marries during the lifetime of A , and A afterwards expresses his approbation of the marriage.
A dies. The bequest of B takes effect.
Page 2 of 4
S. 26. (A)
(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the Will. The
document is executed by A within a reasonable time, but not within the time specified in the Will. A has not
performed the condition, and is not entitled to receive the legacy."
Conditions. —The old distinction between conditions precedent and conditions subsequent, to which
Lord Coke calls attention as of the first importance, is this : that, where an estate is given on a condition
subsequent, the estate vests till the condition or contingency takes place and then it operates by divesting or
destroying the estate. It is resorted to in order to enforce the object of the donor by the terror of a penalty, and as it
operates by the destruction of estates it is considered as odious and stricti juris . One effect of this disfavour is, that
if the condition is, or by the act of God, becomes impossible, the estate is absolute as if there had been no
condition. So where the condition subsequent is unlawful. Another effect of the odium under which they lie, is that
they are construed strictly. Thus it appears that, in respect to the penal nature of these conditions, the phrase ‘ in
terrorem ’ is peculiarly applicable to them.
The condition precedent is of quite an opposite nature; there the estate cannot commence until the condition is
performed, or the contingency has happened. The condition, therefore, is beneficial, not penal, and is favoured and
benignantly interpreted, according to the intention of the words. The phrase ‘ in terrorem ’ is, therefore, from its
nature, inapplicable to them and actual performance is essential to them, notwithstanding their favourable
interpretation; therefore, though the condition be impossible or illegal, no estate can arise, and it is the same as if
none had been given. The result is, that, although penal conditions to destroy estates may be dispensed with,
beneficial conditions to raise estates must always be complied with. 94
Fulfilment of condition precedent. —This section is supplemental to Section 25. It enacts that a
condition precedent shall be deemed to have been fulfilled if substantially complied with. A Mahomedan widow
agreed not to transfer certain property without the consent of three persons who were the other parties to the
agreement. Two of them died and a transfer by her with the consent of the survivor was not upheld. 95 In the first
illustration to the section where B was to marry with the consent of C , D and E , the condition was deemed to have
been fulfilled by his marrying with the consent of C and D , after E’s death. The Allahabad case is open to criticism
that the person whose consent the widow could obtain was only one at the time of transfer and she had
substantially complied with the agreement.
A bequest was made to the female children of the testator’s sister on their attaining twenty-one or marrying with the
consent of their parents. The elder daughter married while under age with the consent of her mother who then was
a widow. It was held (reversing the decision of Jessel, M.R.), that the consent mentioned in the will must be taken to
be that of parents or parent, if any, and that the daughter who had married with the consent of the surviving parent,
took a vested interest in the land. 96 A legacy was given to plaintiff on marriage with the consent of parents. The
parents in writing gave a general consent. On the death of the surviving parent she married. It was held consent
was necessary during the lifetime of the father or mother or survivor, otherwise the general consent was sufficient. 1
Where a devise determined on the devisee ceasing to use a certain house as residence, no manner or period of
residence being prescribed, it was held that exclusive residence was not meant and that occasional use thereof
was a substantial compliance with the condition. Failure to use the residence for four years owing to judicial
proceedings brought to defeat the title of the devisee and by his inability to obtain possession from the trustees and
by the unfit state thereof owing to want of repairs which were in progress, did not operate to defeat the gift. 2 In
another case before the same tribunal, a bequest dependent on the condition that the legatees "should they after
the final Court’s decision, humbly apply for subsistence" receive a certain allowance, was held not to have been
complied with where letters from the legatee to the Collector of the district administering the estate asserted a right
to be maintained and demanded a sum considerably larger than that given by the will, as also protesting against the
inadequacy of the bequest and demanding "something suitable to our dignity". 3
Page 3 of 4
S. 26. (A)
Where a sale deed is executed with condition that the title, interest in the plaintiff shall pass when the plaintiff shall
pay the balance sale consideration by a certain date, and the balance consideration is not paid by that date, no
title/interest in the property passes to the plaintiff, the fact that now the plaintiff is ready to pay the sale
consideration would not satisfy the condition of the sale deed. The plaintiff’s suit for declaration of title and
possession as against the defendant vendor was dismissed. 4
Consent generally. —Whether conditions be precedent or subsequent, if they are in restraint of

marriage the Courts struggle to prevent a forfeiture. Trustees must consider themselves as parents and readily
consent when there is no objection. 5 After a lapse of 28 years consent was presumed. 6 It may be expressed or
implied. 7 Where the marriage is to be with the consent of trustees, the consent of such as accept office is
sufficient. 8 A trustee is not required to show his reason for dissent. 9 The consent must be free. 10 A consent
required to be in writing shall be deemed to be complied with if given orally. 11 Consent after the act is not
performance of the condition. 12 Consent to marriage may be withdrawn upon good reason 13 but not capriciously.
14
Conditional transfer to one person coupled with transfer to another on failure of prior disposition.
94 Scott v. Tyler , 2 Bro. C.C. 432 : 29 ER 241, 253; Clarke v. Parker , (1812) 19 Ves. 1 : 34
ER 419; Lloyd v. Branton , (1817) 3 Mer. 108 : 36 ER 42; Aislabie v. Rice , (1818) 3 Mad 256 : 56 ER 503.
95 Beni Chand v. Ekram Ahmad ,

AIR 1926 All 181 .
96 Dawson v. Oliver—Massey , (1876) 2 Ch. D. 753.
1 Mercer v. Hall , (1793) 4 Bro. C.C. 326 : 29 ER 917.
2 Ganendro Mohun Tagore v. Raja Juttendro Mohun Tagore ,

(1874) 22 WR 377 : 1 IA 387; In re Moir, Warner v. Moir , (1884) 25 Ch. D. 605.
3 Veerbhadra v. Chiranjivi , (1905) 28 Mad 173 : 32 IA 105.
4 Ramesh Prasad v. Kasi Sao ,

2003 AIHC 378 (381) (All).
5 Daley v. Desbouverie , (1738) 2 Atk. 261 : 26 ER 561.
6 Re. Birch , (1853) 17 Beav. 358 : 51 ER 1072.
7 Clarke v. Parker , (1812) 19 Ves. 1 : 34 ER 419; Harvey v. Aston , (1737) 1 Atk. 361 : 26
ER 230.
Page 4 of 4
S. 26. (A)
8 Ewens v. Addison,
(1858) 32 LTOS 103 ; Worthington v. Evans , (1823) 1 Sim. & St. 165 : 57 ER 66.
9 Clarke v. Parker , (1812) 19 Ves. 1 : 34 ER 419.
10 Re. Stephenson’s Trusts ,

(1870) 18 WR 1066 .
11 Worthington v. Evans , (1823) 1 Sim. & St. 165 : 57 ER 66.
12 See Section 128,illustration (v),

Indian Succession Act, 1925 .
13 Clarke v. Parker , (1812) 19 Ves. lm. 34 ER 419.
14 See Section 128,illustration (iv) to the

Indian Succession Act, 1925 .
End of Document
Darashaw Vakil
S. 27.
Where, on a transfer of property, an interest therein is created in favour of
one person, and by the same transaction an ulterior disposition of the same
interest is made in favour of another, if the prior disposition under the
transfer shall fail, the ulterior disposition shall take effect upon the failure of
the prior disposition, although the failure may not have occurred in the
manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior
disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior
disposition shall not take effect unless the prior disposition fails in that manner.
Illustrations
(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 lifetime. 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. This disposition in favour of B does not take effect.
End of Document
S. 27. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —The first para of this corresponds to Section section 129 and the second para of this
corresponds to
Section 130 of the Indian Succession Act, 1925 , which provide as under:—
"129. Bequest to A and on failure of prior bequest to B

.— Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall
fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have
occurred in the manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B . A dies
without having ever had a child. The bequest to b takes effect.
(ii) A bequeaths a sum of money to B , on condition that he shall execute a certain document within three
months after A ’s death, and, if he should neglect to do so, to C . B dies in the testator’s lifetime. The
bequest to C takes effect."
"130. When second bequest not to take effect on failure of first.— Where the Will shows an
intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner,
the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he
had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that
she died before him, the bequest to B does not take effect."
Page 2 of 4
S. 27. (A)
Scope and application. —The failure contemplated by

section 129, Indian Succession Act, 1925 , is the failure of a valid gift. When the gift is ab initio void , the
subsequent gifts must also fail as provided by
section 116, Indian Succession Act, 1925 . The principle of English law is also similar, and that is
expressed in the phrase that a limitation following upon a limitation void for remoteness is itself void even though it
may not itself transgress the rule against perpetuity.15
The manner of failure of the prior estate as prescribed is not to be construed literally. If the precedent estate by
whatever means is out of the case, the subsequent limitation takes place. 16 The rule of English Law is, where a
testator manifests a clear intention to give a benefit to certain objects on an event which happens, the legatee shall
not be deprived of it although a circumstance inadvertently coupled with it in the language used, does not literally
take place. 17
A testator devised a term of years to his wife for life and after her death to the child she was then enceinte with; but
if such child died before twenty-one then he devised onethird part of the term to his wife. The wife was not enceinte
at the time of the devise. It was held that the devise to her was good though the contingency never happened, 18
and so where the child expected was a son and turned out to be a daughter. 19 In such cases where there is a gift
over at marriage it falls within the well-known rule in Jones v. Westcomb 20 and takes effect either on
death or on marriage. A testator gave property to trustees on trust for his son for life until he should become
bankrupt or insolvent and then over. Such a limitation is good in English Law 21 but would be void under
Acceleration of remainder on failure of life estate. —A gift in remainder expectant on the termination
of an estate for life does not fail but is accelerated by reason of the gift of such prior life estate not taking effect. 22
An award appointed D the dedicator as first manager for twenty-one years and on the expiration of his term
appointed his younger brother R as manager for twenty-one years and on the expiry of his term, S the third son of
the dedicator, was to be manager for twenty-one years, thereafter the eldest son of D . then the eldest son of R and
then the eldest son of S and so on. R died before the completion of the full term of twenty-one years. S had
predeceased R . The eldest son of R claimed the right of management for the unexpired portion of the term of
twenty-one years. Held that the right of managership given to R was personal to him, and on his death before
completion of his term and S dying before R , the result was to accelerate the succession of the eldest son of D . 23
In an earlier case a testator directed his widow to adopt a son but on the death of the adopted son without leaving
issue, his estate was to be divided equally between his two daughters. The authority to adopt having been declared
invalid, it was held that the bequest to adopt a son having failed, such failure did not make the bequest void but the
daughters took an absolute interest under the will of the testator as tenants in common. 24
Proviso. —According to this, the subsequent limitation does not take effect unless the prior disposition
fails in the manner contemplated by the transferor. A similar provision is made in Section
section 130 of the Indian Succession Act, 1925 .
Illustration (b). —Prior to the Law of Property Act, 1925, by the law of England the question of
survivorship in cases, of which the illustration is an example, was a matter of evidence and not of positive regulation
and enactment, as in the French Code, and in the absence of evidence there was no conclusion of law on the
subject. The illustration recalls the case of Underwood v. Wing . 25 The English Law, however, is now altered and
the presumption in simultaneous deaths by the Law of Property Act, 1925, Section 184, is that in all cases where
two or more persons have died in circumstances rendering it uncertain which of them survived the other or others,
such deaths for the purpose of affecting title to the property are to be presumed to have occurred in the order of
Page 3 of 4
S. 27. (A)
seniority and the younger shall be deemed to have survived the elder.
Conditional bequests and devises. —The

Indian Succession Act of 1925 contains provisions similar to
Section 27 of the Transfer of Property Act . The rule enunciated in the is similar to that in Section
section 129 of the Indian Succession Act, 1925 and that in the proviso as in Section 130.
A testator bequeathed the residue of his estate to his grandsons who might be born to his son K. within ten years
after his death and failing such grandsons to his granddaughters equally after the death of his wife. A grandson was
born within ten years of his death. It was held that the bequest in favour of the grandson being to a person not in
existence, was invalid. Further, as the grandson was in existence the bequest in favour of the grand-daughters
could not take effect under Section
section 130 of the Indian Succession Act which applied to Hindu wills. Therefore, the grandson took the
whole estate as heir-atlaw.26 This illustration to Section
section 130 of the Indian Succession Act which is identical with section (b) of the present section recalls
the case of Underwood v. Wing , 27 the first illustration to Section 129,Meadows v. Parry , 28 and the second
illustration, Avelyn v. Ward . 29 Other cases illustrating Section 129 are collected in William on Executors, 12th Ed.,
Vol. II, pp. 820-822, Theobald on Wills, 8th Ed., pp. 738-740, Jarman on Wills, 7th Ed., pp. 2134-2138.
Ulterior transfer conditional on happening or not happening of specified event.
15 Ismail Haji v. Umar Abdulla ,

AIR 1942 Bom 155 (158) :
ILR 1942 Bom 441 : 201 IC 34.
16 Avelyn v. Ward , (1750) 1 Ves. Sen. 420 : 27 ER 1117; Re. Sheppard’s Trust , (1855) 1
K. & J. 269; Underwood v. Wing , (1855) 4 De M. & G. 633 : 43 ER 655; Edgeworth v. Edgeworth,
(1869) 4 HL 35 ; Davies v. Davies,
(1882) 47 LT 40 ; Tennant v. Heathfield , (1855) 21 Beav. 255 : 52 ER 857; Barnett
v. Tugwell , (1862) 31 Beav. 232 : 54 ER 1127.
17 Harman v. Dickenson , (1781) 1 Bro. C.C. 91 : 28 ER 1004.
18 Jones v. Westcomb , (1711) Prec. Ch. 316 : 24 ER 149; Roe d’Fulham v. Wickett , (1741)
Willes, 303 : 125 ER 1184.
19 Okhoymoney Dasee v. Nilmoney Mullick ,

(1888) 15 Cal 282 .
20 (1711) Prec. Ch. 316 : 24 ER 149.
21 In re Mason, Mason v. Mason , (1910) 1 Ch. 695; Etches v. Etches , (1856) 3 Drew. 441 :
61 ER 971.
Page 4 of 4
S. 27. (A)
22 Adjudhia Baksh v. Rakhman Kuar ,

(1884) 10 Cal 482 ; Lainson v. Lainson , (1853) 24 LJ Ch. 46 : 43 ER 1063; Jull v.
Jacobs , (1876) 3 Ch. D. 703; Re. Johnson, Danily v. Johnson,
(1893) 68 LT 20 .
23 Debi Shankar v. Nand Kishore ,

AIR 1932 O. 161 .
24 Radha Prasad v. Ranee Mani ,

(1906) 33 Cal 947 .
25 (1855) 24 LJ Ch. 293 : 43 ER 655; Tennant v. Heathfield , (1855) 21 Beav. 255 : 52 ER 857; Barnett v.
Tugwell , (1862) 31 Beav. 232 : 54 ER 1127.
26 Official Assignee of Madras v. Vedavalli ,

AIR 1926 Mad 936 [
LNIND 1925 MAD 254 ].
27 (1855) 24 LJ Ch. 293 : 43 ER 655; Tennant v. Heathfield , (1855) 31 Beav. 255 : 52 ER 857; Barnett v.
Tugwell , (1862) 31 Beav. 232 : 54 ER 1127.
28 (1812) 1 Ves. & B. 124 : 35 ER 49.
29 (1750) 1 Ves. Sen. 420 : 27 ER 1117.
End of Document
Darashaw Vakil
S. 28.
On a transfer of property an interest therein may be created to accrue to any
person with the condition superadded that in case a specified uncertain
event shall happen such interest shall pass to another person, or that in
case a specified uncertain event shall not happen such interest shall pass to
another person. In each case the dispositions are subject to the rules
contained in Sections 10, 12, 21, 22, 23, 24, 25 and 27.
End of Document
S. 28. (A)
Darashaw Vakil
COMMENTS

section 131 of The Indian Succession Act, 1925 , which provides as under :—
"131. Bequest over, conditional upon happening or not happening of specified uncertain even. —
(1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain even
shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not
happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is subject to the rules contained in Sections 120, 121, 122, 123, 124, 125, 126,
127, 129 and 130.
Illustrations
(i) A sum of money is bequeathed to A , to be paid to him at the age of 18, and if he shall die before he attains
that age, to B . A takes a vested interest in the legacy, subject to be divested and to go to B in case A dies
under 18.
(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a
will, the estate shall go to B . A dispute the competency of the testator to make a will. The estate goes to B
(iii) A sum of money is bequeathed to A for life, and, after his death, to B ; but if B shall then be dead, leaving a
son, such son is to stand in the place of B . B takes a vested interest in the legacy, subject to be divested if
he dies leaving a son in A ’s lifetime.
(iv) A sum of money is bequeathed to A and B , and if either should die during the life of C , then to the survivor
living at the death of C . A and B die before C . The gift over cannot take effect, but the representative of A
takes one-half of the money, and the representative of B takes the other half.
(v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally
among her three children, or such of them as shall be living at her death. All the children of B die in B ’s
lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives."
Scope and application. —This section deals with the subject known to law as condition subsequent or,
Page 2 of 10
S. 28. (A)
to use the phrase in the section, condition superadded. These are dealt with in a group formed of Sections 28, 29
and 30. The considerations applicable to conditions subsequent seem to be totally different from the considerations
applicable to conditions precedent grouped under Sections 25, 26 and 27. In the present group of cases there is a
clear original vested gift in certain defined persons and there is a clear condition subsequent taking the benefits
away from them on specified conditions. The object of conditions subsequent is to determine and divest (upon the
happening of the event specified) estates or interests antecedently vested. If, therefore, the condition be void, the
gift will be absolute.
Section 28 expressly allows the gift of any interest in favour of the donee subject to the condition that on the
happening of a specified uncertain event the interest shall pass to another person. In such a case what is really
conferred on the donee under the first clause is only a life estate even though the interest is described in that clause
as an absolute estate, and the absolute estate, passes to the donee or donees under the second clause on the
happening of the specified uncertain event. 30 Where by a gift deed certain properties were given to A as his
absolute properties, but a subsequent clause in the deed provided that if A died during minority or before marriage,
B and C would take the properties, it was held that under the gift deed A had been given only life estate and as
such the defeasance clause did not offend
In a case where the donor grants an absolute estate to the donee and in a subsequent clause in the deed provides
that on the happening of a contingency the absolute estate would be curtailed to a life estate after the death of the
donee by exclusion of all the heirs at law of the donee from inheritance, such a clause is a defeasance clause as it
defeats or extinguishes the absolute estate and not a repugnant clause. 32
succeeded by his heirs from generation to generation, the settlement deed contained a further clause that if both
the wife and the son of the settlor died during the settlor’s lifetime the properties would revert to the settlor as an
granted to the son of the settlor to a life estate on the happening of the contingency. As such on the death of the
Whereby a deed of absolute estate was given, but clause was added that in case the conferee died issueless, the
estate would revert back to a sister and children of the sister, it was held that the condition for reversion of the
property was in the nature of a defeasance clause, which put an end to the earlier absolute estate by gift to the
conferee and her children. 34 The distinction between an absolute estate with a repugnant provision and an
absolute estate with a defeasance clause was succinctly put by Sundaram Chetty, J., in Govindaraja Pillai v.
Mangalam Pillar ,
AIR 1933 Mad 80 [
LNIND 1932 MAD 143 ] as follows :—
"This distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle
of law seems to be that, where the intention of the donor is to maintain the absolute estate conferred on the donee but he
simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be
repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made
subject to defeasance on the happening of a contingency and where the effect of such defeasance would not be a violation
Page 3 of 10
S. 28. (A)
of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative."
If a condition attached to a devise is capable of being construed either as a condition precedent or as a condition
subsequent, the Court will prefer the latter construction. 35 The condition subsequent must be subsequent to the
actual enjoyment in possession of the estate. The obligation to perform the condition does not arise until after
possession is taken. The obligation to do the act and the immunity from doing it, are both measured by the same
standard, namely, what are the limits of the condition,—when does the obligation arise under the condition? When
you once come to the conclusion that the condition is intended to operate only after the devisee comes into
possession, the occasion for any excuse for his not performing it, arises then and not till then, and it is unnecessary
to consider whether he could or could not perform it before. A clause of defeasance, in order to be operative, must
contain express words or words of necessary implication of a gift over to a definite person. 36 A testator by his will
made a settlement of his property in favour of his grand-children on the express condition that during their
respective minorities they should not reside abroad except for a period not exceeding six weeks in each year. Upon
non-compliance their shares were to be forfeited. Held that the condition was a condition subsequent, and as its
non-compliance was void as being contrary to public policy as tending to the possible separation of parents from
their children, the condition was void. 37 A condition divesting the interest of a devisee or legatee if he enters into
the naval or military services of the country is void as against public policy. 38 A Hindu may create a life estate or
successive life estates. But a series of absolute estates defeasible in succession on the happening of an uncertain
event cannot be considered as a succession of life estates. It can only be considered as an attempt to create a
state of inheritance which is not recognized by Hindu Law. These were the observations in a Bombay case which
was decided on Section
section 131 of the Indian Succession Act, 1925 , corresponding to the present section. A testator
bequeathed his property successively to the three sons of his sister subject to the condition that, if the first died
without male issue surviving, it was to go to the second, who was similarly liable to be defeated if he in his turn died
without leaving male issue, in which event the property was to go to the third son subject to a similar condition.
Ultimately, the property was devised in favour of charity. The first two sons having died without male issue
surviving, the third son sued for construction of the will. Held, the first son took an absolute estate which on his
death would go to his daughter as his heiress. Here the testator intended that the bequest to the first son should be
defeasible. If he died without male issue then there should be a gift over. But he attached a condition to that gift
over, and he attempted to restrict the inheritance of his estate in a manner contrary to the principles of Hindu Law.39
A testator by his will directed that any child of his taking any interest thereunder should, in respect of other funds to
which the child would become entitled, execute a settlement to the satisfaction of the testator’s trustees on the lines
laid down in the will. The will contained a forfeiture clause if the directions as to the settlement were not complied
with. The son of the testator (the settlor) executed a settlement and the recitals in the deed stated his desire to
execute it in accordance with the testator’s directions. The will trustees expressed themselves satisfied with the
settlement. It stated, inter alia : "If the settlor shall not have had any child who under the trusts in default of
appointment hereintofore contained shall attain a vested interest in the trust fund, then .... the trust fund .... shall be
held as to one-half thereof in trust for such person or persons as the settlor shall by will or codicil appoint, and as to
the other half part .... shall be dealt with as if the settlor had died in the lifetime of the (testator) without leaving any
child living at the death of the said (testator)." Held (Lord Blanesburgh dissenting), that the satisfaction of the
trustees was not conclusive; that the recitals and operative part of the settlement, though clear, were inconsistent
and the operative part prevailed; that the settlement reproduced the words of the testator’s will, which referred to
the son’s portion, whereas the settlement referred to the son’s trust fund; that the stated hypothesis of the son’s
death in his father’s lifetime, though apt to determine the destination of the testator’s own property, was not
sufficient to determine that of the son’s own property; that there was a resulting trust to the son; that there was
consequently by the terms of the testator’s will a forfeiture of the settlor’s interest of his portion under the will. 40
Where the estate was conferred upon settlor’s son subject to defeasance if settlor’s son died issueless, the
defeasance clause was not opposed to any rule of law and was held valid. 41
Condition subsequent ineffectual. —Where the condition subsequent is uncertain or is contrary to

public policy or impossible, it is void and ineffectual, although there may be a gift over and the gift over is also
Page 4 of 10
S. 28. (A)
ineffectual. 42
Validity of condition. —A condition subsequent to be valid must be one which, if it forms the
consideration of an agreement or contract, the agreement or contract would be valid.
Time for performance. —The section does not make any reference to the time in which a condition
subsequent must be performed. There is no general rule in computing time. Each case depends upon the reason of
the thing according to the circumstances. 43 Even if it be performed subsequent to the time fixed for performance
and the Court finds that all parties can be put in substantially the same position as they would have been, had the
condition been performed within the proper time, time is not regarded as of the essence and such performance is
treated as a sufficient compliance of the condition. 44
Ignorance of condition subsequent. —Ignorance of a condition subsequent cannot prevent a

forfeiture clause for breach of the condition coming into operation. 45 But where there was a gift over upon "refusal
or neglect" to take the name and arms of the testator, and failure to comply with the condition was through
ignorance of existence of the will, it was held that the estate was not forfeited as the expression "refuse or neglect"
is not equivalent to "fall" or "omit" as it implies a conscious act of volition. 46
Certainty. —One of the cardinal rules on this subject has been this, that where a vested estate is to be
defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court
can see from the beginning precisely and distinctly, upon the happening of what event it was that the preceding
vested estate was to determine. 47 Limitation must be certain not only in expression but also in operation. 48 The
position is similar in the
T.P. Act with regard to a gift.
Section 28 of T.P. Act , corresponding to Section section 131 the
Indian Succession Act, 1925 is subject to the rule contained in
Section 23 of the T.P. Act (corresponding to Section
section 124 of the Indian Succession Act, 1925 ).49
Impossibility. —If a condition annexed to a gift or legacy be impossible at the time of imposing it, the
gift or legacy can never take effect. The testator devised the residue of his estate to J, provided she married with
the consent of his two executors. One of them died. The condition being subsequent became impossible and she
could therefore marry without the consent of the survivor. 50 In such cases the performance is dispensed with and
the gift becomes absolute, 51 but where the consent is to be obtained, as of a guardian, and if there is no guardian,
it cannot be said that the condition was complied with, for a guardian could have been appointed. 52 Whenever the
Courts take notice of a condition impossible, it must be a natural impossibility arising from an act subsequent, which
the party could not avoid, having become impossible by an act of God. 53 Lunacy has been held to be an act of God
making performance of condition impossible, and the condition being subsequent, the legatee takes an absolute
estate. 54 A settlement for two daughters provided that if either married without the consent of their mother, it
should be to her separate use. After proposing and encouraging the marriage of one of them the mother refused to
give her consent out of resentment. The marriage held without her consent was held to be no forfeiture. 55 A
consent may be withdrawn if subsequent circumstances justified it. This power is not unlimited and cannot be
exercised for mere caprice. 56 A bequest to a testator’s son contained a condition prohibiting marriage with two
named persons with a gift over on breach of condition. The son married, but none of the two named persons. It was
held that the condition was not impossible of fulfilment so long as the plaintiff and either of the two ladies survived
and, therefore, the bequest took effect subject to defeasance on breach of the condition at any time. 57
Exemption. —A condition subsequent was that each of the daughters of the settlor should settle her
Page 5 of 10
S. 28. (A)
interest under her mother’s marriage settlement upon certain trusts. The daughters who executed settlements in the
testator’s lifetime with his concurrence were held exempt from the performance of the condition though the trusts of
the settlement were not absolutely identical with the trusts of the will, and in one particular were opposed to the
provisions of the will of the testator, their father. 58 The true principle in this class of cases where conditions are
dispensed with, is not that of considering that the condition has been fulfilled but that the child or other persons
entitled under the will are exempt from the condition altogether, so that the will must be read as if there was no
condition.
Indian Succession Act, 1925 .—Section 28 corresponds to Section 131 of this Actexcept that in the
Transfer of Property Act the dispositions are subject to certain rules enumerated in Section section 28,
while under the
Indian Succession Act it is only the ulterior bequest that is subject to the parallel rules contained in
Section
section 131 of the Indian Succession Act .
Condition of residence. —Residence must be personal. 59 Residence has been decided not to require
that a man shall actually sleep there every night. 60 Although the words of the will were not fulfilled literally, it was
held that there was no forfeiture where the tenant for life was directed to reside upon the message at least every six
calendar months in a year, and on his failure to do so there was a gift over. The tenant for life did not reside as
directed, but had in the house a staff and servants, paid the rates and kept horses and poultry, and his son stayed
in the house on an average on every alternate Saturday till Monday. 61 In a later case, "residing" was held to mean
"personally residing." By his will a testator gave his leasehold house to trustees to permit his niece C to hold and
occupy the same free of rent on the express condition that after his decease his niece C should "remain single and
unmarried," and in the event of her marriage she was to forfeit the bequest and it was to fall in the residue. C
resided until marriage and ten years thereafter and then her husband took another house in the neighbourhood and
she moved into it with him. She let all the rooms but kept one for herself and in it she kept a bed, her books, some
clothes, writing materials, etc ., and retained the key. She went there two or three times a week and occasionally
had meals and slept there. It was held that what C had done did not amount to residing within the meaning of the
will, but reading the subsequent void condition in restraint of marriage into the condition as to residence on
marriage, the latter condition did not apply and there was no forfeiture. 62 But where a direction in a will "provided,
that in the event of my said niece voluntarily ceasing to make the said dwelling house her permanent home as
aforesaids, I direct the said sum of 7,000 and the investment representing the same shall fall in the residue," it was
held that there was no forfeiture where the niece on marriage, in pursuance of her husband’s injunction and
because he wished to make another house the matrimonial home, complied with his instructions. It was there held
that voluntarily meant "freely without compulsion" and "not under any obligation" and that having acted in pursuance
of a legal duty to her husband, she would not cease to use the dwelling house, her permanent home, voluntarily. 63
There are many authorities, ancient and modern, showing that the Courts abhor provisions in instruments of
whatever kind contemplating the interruption of conjugal relations and hold such provisions void as against the
policy of the law. One of the terms of a will was that if any female member of the testator’s family should live in any
other than a holy place for more than three months she should forfeit her rights under the will. The plaintiff, a minor
daughter-in-law, was forcibly removed from her house with the aid of the police, and resided for more than three
months with her mother. It was held that absence under duress did not work a forfeiture. 64 Reference was made to
a passage in the judgment of Lord Campbell in Calvering v. Ellison 65 : "Had the children been included
in the arrest I conceive that their residence abroad under continued duress would not have worked a forfeiture, and
if their residence abroad may be fairly ascribed to the imprisonment of their father by Napoleon, the forfeiture might
be saved on this ground, were there a necessity to resort to it." This case could have been decided equally in the
plaintiff’s favour on the ground of infancy.
But maintenance of an establishment was held insufficient and personal residence considered necessary where
trustees were directed by a testator to pay the income of the residuary estate to the tenant for life of a certain
property during such period of his life as he should reside on the property for a limited period in every year, there
being a gift over of the income in the event of his ceasing or declining so to reside. 66 A Hindu testator directed that
his two wives should live in the family dwelling house or, according to the rules of Hindu religion, in some holy
Page 6 of 10
S. 28. (A)
place, and each should receive a monthly allowance of Rs. 10 for maintenance, with a gift over. If either acted
contrary to the will, she should be deprived of all interest. The younger widow who broke the condition relating to
residence forfeited her interest. 67
Infancy. —An infant is not bound by a condition subsequent requiring residence inasmuch as he has no
power to choose his own place of residence. 68
Repugnant conditions. —If a condition subsequent which is to defeat an estate is against the policy of
the law, the gift is absolute, but if the illegal condition is precedent, there is no gift.
A condition against alienation is void. —The difference between a condition properly so called and a
conditional limitation or an executory devise is that in the case of a condition, the estate is to revert to the grantor or
his heirs, and in other cases it is limited over to other persons. A limitation to the use of A and his heirs till C returns
from London and after the return of C , to the use of B in fee, is in a deed a conditional limitation, in a will an
executory devise. A limitation which defeats a portion of the estate previously given is a conditional limitation as
distinguished from condition, of which only the grantor or his heirs can take advantage. If an estate is given to A for
life with remainder to B absolutely with a proviso that if A should attempt to assign, his life estate should cease,
such a proviso is read as a limitation to A during his life or until he should attempt to assign, and upon that event or
after his death, such a limitation is held to be valid. The general law is that a defeasance, either by condition or by
conditional limitation or executory devise, cannot be well limited to take effect in derogation, nor merely of the right
of alienation, but of any of the natural incidents of the estate which it is intended to divest. 69 An incident of the
estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a
condition which would cause the estate to revert to the donor or by conditional limitation or executory devise which
would cause it to shift to another person. A testatrix gave certain estates to her son, but if he did or suffered any act,
in consequence whereof he would be deprived of the personal beneficial enjoyment thereof, then the trust was to
cease and the estate held in trust for his wife, or, if no wife then living, for his children equally. The son survived his
mother, and was a bachelor.—Held that he took an absolute interest under the gift, and that the attempted
executory gift over was void for repugnancy. 70 The general principle as enunciated above is subject to many
important exceptions, one of them being an executory devise defeating or abridging an estate in fee by altering the
course of its devolution which is to take effect at the moment of devolution and at no other time. Another exception
is that any executory devise which is to defeat an estate and which is to take effect on the exercise of any of the
rights incident to that, is void. It is clear that under the extreme freedom of disposition allowed to testators, a gift by
will which is absolute in the first instance may in general be modified by subsequent words cutting down or divesting
the gift on any contingency the testator may think fit to select. B died leaving a certain immovable property to his
son R under a will with the words, "should my son R die, which God forbid, and should he then leave a son, such
his son shall afterwards be the owner thereof." It was held that R took only a life-interest. 71
But the contingency must not be so selected as to run counter to the general policy of the law. Thus gifts over on
any of the following contingencies, amongst others, are bad, namely, (a) any contingency that is too remote, (b) the
contingency of any marriage whatsoever, (c) the contingency of alienation, (d) the contingency of bankruptcy, or (e)
the contingency of intestacy. The same principle is affirmed in India and there is a large number of decisions of the
Indian Courts which supports this principle. A gift over is void for repugnance where the estate conferred is of an
absolute nature. Where it was found that a testator had intended to give an absolute estate and attempted to limit
the rights of the holder owing to an erroneous view of his powers, the attempt to limit the rights must be rejected on
the ground of repugnance. 72 The same principle has been followed by the Courts of Bombay, 73 Calcutta 74 and
Lahore. 75
Gift over. —It is clearly settled that a gift over upon an attempt to alienate an absolute interest
previously given is as void as a condition. 76
Page 7 of 10
S. 28. (A)
Change of religion. —A testatrix limited to a daughter an exclusive power of appointment by will

amongst her children. The daughter appointed among the objects of the power and declared that if either during her
life or after her death any son or daughter should marry a person not professing the Jewish religion or should
forsake the Jewish and adopt the Christian or any other religion, such son or daughter should forfeit all share in the
fund, which was to accrue and go over to the other children living at the date of forfeiture. A son of the testatrix
married a Christian without her consent. A daughter embraced Christianity after her mother’s death. Both children
were born after the death of the creator of the power. Held, the forfeiture clause was not void against public policy.
The share of the son was forfeited, but as regards the daughter, so far as it affected after the death of the appointor
the share of a child born after the death of the creator of the power, it was void for remoteness and consequently
the daughter had not forfeited her share. 77
Marriage. —All general restraints upon marriage are void. 78 But not if the restraint is with a view to
protect a child or in cases where marriage of a woman is prohibited on the ground that it would lead to the neglect
of the testator’s child or might result in another man’s spending his hard-earned money. 79 Or where a condition
subsequent is in restraint of a marriage of a single woman on the ground of health, or provision being only intended
until marriage. 80 A condition subsequent in partial restraint of marriage is valid if accompanied by a gift over. 81
Fulfilment of condition subsequent.
30 Parvathi v. Velayudhan , AIR 1957 Trav-Co. 167 (169) :

ILR 1956 TC 914 [
LNIND 1956 KER 72 ] :
1956 Ker LT 620 [
LNIND 1956 KER 72 ].
31 Parvathi v. Velayudhan , AIR 1957 Trav-Co. 167 (169) :

ILR 1956 TC 914 [
LNIND 1956 KER 72 ] :
1956 Ker LT 620 [

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159) :
(1982) 1 CHN 184 : 86 CWN 583, See also Govindaraj v. Mangalam Pillai ,
AIR 1933 Mad 80 [
LNIND 1932 MAD 143 ]: 139 IC 867; Rameshwar Kuer v. Shiolal ,
AIR 1935 Pat 401 : 156 IC 33 : ILR 14 Pat 640.

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159, 160).
34 Y. Yohannan v. R. Maria ,
AIR 1973 Ker 96 (97) : 1972 Ker LR 351.
Page 8 of 10
S. 28. (A)
35 In re Greenwood, Goodhart v. Woodhead , (1903) 1 Ch. 749.
36 Amulya Charan v. Kali Das ,

(1905) 32 Cal 861 .
37 In re Boulter, Capital and Counties Bank v. Boulter , (1922) 1 Ch. 75.
38 In re Beard, Reversionary and General Securities Co. Ltd. v. Hall , (1908) 1 Ch. 383.
39 Bai Dhanlaxmi v. Hariprasad , (1921) 45 Bom 1038.
40 Inland Revenue Commissioners v. Raphael,

(1935) 51 TLR 152 ; Same v. Ezra,
(1935) 51 TLR 152 .
41 Tejo v. Chaperamm ,
AIR 1956 Punj 45 (46).
42 Thomas v. Howell , (1692) 1 Salk. 170 : 91 ER 157.
43 Lester v. Garland , (1808) 15 Ves. 248 : 33 ER 748.
44 Re. Goodwin, Ainslie v. Goodwin , (1924) 2 Ch. 26.
45 Astley v. Essex (Earl) , (1874) L.R. 18 Eq. 290.
46 In re Quintin Dick , Cloncurry v. Fenton , (1926) 1 Ch. 992; Partridge v. Partridge , (1894)
1 Ch. 351; In re Edwards , (1910) 1 Ch. 541.
47 Clavering v. Ellison , (1859) 29 LJ Ch. 761 : 11 ER 282; Jeffreys v. Jeffreys,

(1901) 84 LT 417 ; Re. Moore’s Trusts, Lewis v. Moore,
(1906) 96 LT 44 ; Re. Sandbrook, Noel v. Sandbrook , (1912) 2 Ch. 471; Re.
Lanyon, Lanyon v. Lanyon , (1927) 2 Ch. 264.
48 In re. Viscount Exmouth, Viscount Exmouth v. Praed , (1883) 23 Ch. D. 158.
49 Talkeshwari Debi v. Ram Ranvekit Singh ,

AIR 1966 Pat 40 (44). (DB).
50 Peyton v. Bury , (1731) 2 P. Wms. 626 : 24 ER 889; Greydon v. Hicks , (1739) 2 Atk. 16 :
26 ER 407; Dwason v. Oliver Massey , (1876) 2 Ch. D. 753.
51 Collett v. Collett , (1866) 35 Beav. 312 : 55 ER 916; Booth v. Meyer,

(1877) 38 LT 125 ; In re Greenwood, Goodhart v. Woodhead , (1903) 1 Ch. 749;
Peyton v. Bury , (1731) 2 P. Wms. 626 : 24 ER 889.
Page 9 of 10
S. 28. (A)
52 Re. Brown’s Will, Re. Brown’s Settlement, (1881) 18 Ch. D. 61.
53 Franco v. Alvarez , (1746) 3 Atk. 342 : 26 ER 998.
54 Re. Bird, Bird v. Cross , (1894) 8 R. 326.
55 Strange (Lord) v. Smith , (1755) Amb. 263 : 27 ER 175.
56 Re. Brown, Ingall v. Brown , (1904) 1 Ch. 120.
57 In re Bathe, Bathe v. Public Trustee , (1925) 1 Ch. 377.
58 In re Grove, Public Trustee v. Dixon , (1919) 1 Ch. 249; In re Park , (1910) 2 Ch. 322.
59 Walcot v. Botfield , (1854) 534 : 69 ER 226.
60 Per JESSEL, M.R., in Astley v. Essex (Earl) , (1874) 18 Eq. 290.
61 In re Moir, Warner v. Moir , (1884) 25 Ch. D. 605.
62 In re Wright, Mott v. Issott , (1907) 1 Ch. 231.
63 In re Walkinson, Page v. Public Trustee, (1926) 1 Ch. 842.
64 Tin Couri Dassee v. Krishna Bhabini ,

(1893) 20 Cal 15 .
65 (1859) 7 HL Cas. 707 : 11 ER 282.
66 Vivian, Vivian v. Swansea,

(1920) 36 TLR 657 .
67 Bhoba Tarini v. Peary Lall ,

(1897) 24 Cal 646 .
68 Partridge v. Partridge , (1894) 1 Ch. 351.
69 In re Dugdale, Dugdale v. Dugdale , (1888) 38 Ch. D. 176; Webb v. Grace , (1848) 2 Ph.
701 : 41 ER 1114; Rochford v. Hackman , (1852) 9 Hare 475 : 68 ER 597; Joel v. Mills , (1857) 3 K. & J. 458 : 69 RE
1189.
Page 10 of 10
S. 28. (A)
70 In re Dugdale, Dugdale v. Dugdal e, (1888) 38 Ch. D. 176; Re . Moore, Trafford v.

Maconochie , (1888) 39 Ch. D. 116; Re. Hope Johnstone, Hope Johnstone v. Hope Johnstone , (1904) 1 Ch. 470; Re.
Wilkinson, Page v. Public Trustee , (1926) Ch. 842.
71 In re. Ashton, Ballard v. Ashton , (1920) 2 Ch. 481; Gulbaji Ajisji v. Rustomji , (1925) 49
Bom 478 ; Mafatlal v. Kanialal ,
(1915) 17 Bom LR 755 .
72 Jagmohan Singh v. Sheoraj Kuar ,

AIR 1928 Oudh 49 .
73 Anandrao Vinayak v. Administrator General of Bombay , (1896) 20 Bom 450.
74 Sures Chandra v. Lalit Mohun ,

(1916) 20 CWN 463 ; Tripurari Pal v. Jagat Tarini ,
(1912) 40 Cal 274 : 40 IA 37.
75 Mohan Lal v. Niranjan Das , (1921) 2 Lah 175 ; Karan Singh v. Rupawanti ,
AIR 1925 Lah 122 .
76 Bradley v. Peixoto , (1797) 3 Ves. 324 : 30 ER 1034; Ross v. Ross , (1819) 1 Jac. & W.
154 : 37 ER 334; Holmes v. Hodson , (1856) 8 De M. & G. 152 : 44 ER 347; Shaw v. Ford , (1877) 7 Ch. D. 668.
77 Hodgson v. Halford , (1879) 11 Ch. D. 959; Warrington v. Miller , (1897) 2 Ch. 255; Re.
Lanyon, Lanyon v. Lanyon , (1927) 2 Ch. 264.
78 Godfrey v. Hughes , (1847) 1 Rob. Eccl. 593 : 163 ER 1147.
79 Potter v. Richards , (1855) 24 LJ Ch. 488.
80 Re. Hewett, Eldridge v. Iles , (1918) 1 Ch. 458; Jones v. Jones , (1876) 45 LJ Ch. QB
166.
81 In re Whiting’s Settlement, Whiting v. De Rutzen , (1905) 1 Ch. 96; Dashwood v. Bulkeley

(Lord) , (1804) 10 Ves. 230 : 32 ER 832; Lloyd v. Branton , (1817) 3 Mer. 108 : 36 ER 42.
End of Document
Darashaw Vakil
S. 29.
An ulterior disposition of the kind contemplated by the last preceding
section cannot, take effect unless the condition is strictly fulfilled.
Illustration
A transfer Rs. 500 to B , to be paid to him on his attaining his majority or marrying, with a
proviso that, if B dies a minor or marries without C ’s consent, the Rs. 500 shall go to D . B marries when only 17 years of
age, without C ’s consent. The transfer to D takes effect.
End of Document
S. 29. (A)
Darashaw Vakil
COMMENTS

section 132 of the Indian Succession Act, 1925 , which provides as under :—
"132. Condition must be strictly fulfilled. —An ulterior bequest of the kind contemplated by Section
131 cannot take effect, unless the condition is strictly fulfilled.
Illustrations
(i) A legacy is bequeathed to A , with a proviso that, if he marries without the consent of B , C and D, the
legacy shall go to E, D dies. Even if A marries without the consent of B and C , the gift to E does not take
effect.
(ii) A legacy is bequeathed to A , with a proviso that, if he marries without the consent of B , the legacy shall
go to C. A marries with the consent of B . He afterwards becomes a widower and marries again without the
consent of B . The bequest to C does not take effect.
(iii) A legacy is bequeathed to A , to be paid at 18, or marriage, with a proviso that, if A dies under 18 or
marries without the consent of B , the legacy shall go to C. A marries under 18, without the consent of B .
The bequest to C takes effect."
Scope. —This section is supplemental to Section 28.
Condition is strictly fulfilled. —Unlike a condition precedent, the law demands, in the case of a
condition subsequent, literal compliance. The reason is that the law favours vesting and abhors divesting and as
clauses dealing with condition subsequent are in defeasance of estates vested, they are to be construed more
stringently. 82 In a subsequent case 83 Kindersley, V.C., said "that the contingency should be so expressed as not
to leave it in any degree doubtful or uncertain what the contingency is which is intended to defeat the prior estate".
84
Indian Succession Act, Section 132 .—This section corresponds with

Page 2 of 3
S. 29. (A)
Section 29 of the Transfer of Property Act . Illustration (i) to this section and illustration (ii) to Section 128
as well as illustration (a) to
Section 26 of the Transfer of Property Act point out the distinction between the fulfilment of a condition
precedent and a condition subsequent.
Defeasance must "fit" the condition. —Usually in a clause containing a condition subsequent there is
a gift over in default of performance when the condition is not fulfilled and where there is a default, the gift over
takes effect. For this purpose, residue is a gift over but it is doubted if a residuary bequest is such. 85 A gift over
cannot be implied. 86
In construing clauses of defeasance, two rules are to be observed, the first rule is to construe the clause most
strictly. The next rule is that the cesser, and the limitation over must fit in with one another, otherwise the gift is
absolute. Such was the opinion expressed in Catt’s Trusts. 87 In that case the limitation was in fee and the gift over
was that it should cease and be void to all intents and purposes, and was to go over in the same manner as if they
were dead. In a subsequent case the gift was in fee simple and was to go over to those entitled in remainder. As
there could be none such, the clause was held to be absolutely void. 88
Revocation clause. —It is quite clear that if a testator desires a gift to be revoked the mere fact that
there is no gift over will not prevent the revocation from taking effect. For this purpose it is not necessary to consider
whether the condition is precedent or subsequent. If the clause for cesser and the gift over do not fit in with each
other, the whole clause would be ineffectual and the gift would be absolute, on the ground that defeasance does
not fit the condition. 89 In an earlier case a testator gave a legacy to his daughter for his life and the remainder in
trust for her children. By a codicil he revoked the bequest to the daughter in case she became a nun. The daughter
took the veil. Held, the condition was a lawful one although there was no gift over. On breach of the condition, her
interest under the bequest ceased. 90
Effect of a void condition. —If a condition be void in its inception, the gift itself is void if the condition is
a condition precedent. It is absolute if the condition is a condition subsequent.
Prior disposition not affected by invalidity of ulterior disposition.
82 Egerton v. Brownlow , (1853) 23 LJ Ch. 348 : 10 ER 359.
83 Clavering v. Ellison , (1859) 29 LJ Ch. 761 : 11 ER 282.
84 Clavering v. Ellison , (1859) 29 LJ Ch. 761 : 11 ER 282.
85 Lloyd v. Branton , (1817) 3 Mer. 108 : 36 ER 42.
86 In re Evans’s Contract , (1920) 2 Ch. 469; Gulliver v. Ashby , (1766) 4 Burr. 1929 : 98 ER
4.
Page 3 of 3
S. 29. (A)
87 (1864) 33 LJ Ch. 495 : 71 ER 377.
88 Musgrave v. Brooke , (1884) 26 Ch. D. 792; In re Cornwallis, Cornwallis v. Wykeham—

Martin , (1886) 32 Ch. D. 388.
89 Re. Catt’s Trust , (1864) 33 LJ Ch. 495 : 71 ER 377.
90 Re. Dickson’s Trust, ex-parte Dickson , (1850) 1 Sim. (N.S.) 38 : 61 ER 14.
End of Document
Darashaw Vakil
S. 30.
If the ulterior disposition is not valid, the prior disposition is not affected by
it.
Illustration
A transfers a farm to B for her life, and, if she does not desert her husband, to C . B is
entitled to the farm during her life as if no condition had been inserted.
End of Document
S. 30. (A)
Darashaw Vakil
COMMENTS

section 133 of the Indian Succession Act, 1925 , which provides as under :—
" 133. Original bequest not affected by invalidity of second. —If the ulterior bequest be not valid the original
bequest is not affected by it.
Illustrations
(i) An estate is bequeathed to A for his life with condition superadded that, if he shall not on a given day walk
100 miles in an hour, the estate shall go to B . The condition being void. A retains his estate as if no
condition had been inserted in the Will.
(ii) An estate is bequeathed to A for her life and, if she does not desert her husband, to B . A is entitled to the
estate during her life as if no condition had been inserted in the Will.
(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B , at the date of the
testator’s death, had not had a son. The bequest over is void under Section 105, land A is entitled to the
estate during his life."
Gift over void. —Section 30 enacts that if a gift over be void the original disposition is not affected. A
Hindu executed a Deed of Settlement excluding his son from inheritance as he was of bad character and made a
gift of his property to his wife (the Rani) appointing her successor and representative subject to conditions, of which
condition 6 was that if during the succeeding years a lawful son was born to his son who was excluded, he should
take the property on attaining majority. It was held that the grandson took the estate by virtue of a condition
subsequent terminating the estate limited to the Rani and her successors in the event of his attaining majority and
that this condition of defeasance being illegal and void under Hindu Law as being in favour of an unborn person, it
was inoperative and void and left the Rani’s estate unaffected. 91
Prior disposition not enlarged. —This section does not enlarge the nature of the interest created in
the first instance by reason of the subsequent disposition being invalid.
Page 2 of 2
S. 30. (A)
Prior disposition void. —This section enacts that if an ulterior disposition is not valid the prior
disposition is not affected by such invalidity. The converse is not true as under Section 16 if a prior disposition fails
the ulterior disposition falls with it.
Ulterior disposition void. —Circumstances rendering ulterior dispositions void are discussed in the
notes to Sections 28 and 29.
Indian Succession Act, Section 133 .—This section corresponds with

Section 30 of the Transfer of Property Act .See heading Analogous Law ante.
Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.
91 Narsingh Rao v. Maha Lakshmi ,

(1928) 50 All 375 ; Gerrard v. Butler , (1855) 20 Beav. 541 : 52 ER 712; Ring v.
Hardwick , (1840) 2 Beav. 352 : 48 ER 1217; Carver v. Bowles , (1831) 2 Russ & M. 301 : 39 ER 409; Stephens v.
Gadsden , (1855) 20 Beav. 463 : 52 ER 682.
End of Document
Darashaw Vakil
S. 31.
Subject to the provisions of Section 12, on a transfer of property an interest
therein may be created with the condition superadded that it shall cease to
exist in case a specified uncertain event shall happen, or in case a specified
uncertain event shall not happen.
Illustrations
(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease
to have any effect. B cuts down the wood. He loses his life-interest in the farm.
(b) A transfers a farm to B , provided that, if B shall not go to England within three years after the date of the transfer,
his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm
ceases.
End of Document
S. 31 (A)
Darashaw Vakil
COMMENTS
Analagous Law. —This corresponds to Section

"134. Bequest conditioned that it shall cease to have effect in case a
specified uncertain event shall happen, or not happen.— A bequest may be made with the condition
superadded that it shall cease to have effect in case a specified uncertain event shall happen, or in case a specified
uncertain even shall not happen.
Illustrations
(i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, the
bequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate.
(ii) An estate is bequeathed to A , provided that, if he marries under the age of 25 without the consent of the
executors named in the Will, the estate shall cease to belong to him. A marries under 25 without the
consent of the executors. The estate ceases to belong to him.
(iii) An estate is bequeathed to A , provided that, if he shall not go to England within three years after the
testator’s death, his interest in the estate shall cease. A does not go to England within the time prescribed.
His interest in the estate ceases.
(iv) An estate is bequeathed to A , with a proviso that, if she becomes a Nun, she shall cease to have any
interest in the estate. A becomes a nun. She loses her interest under the Will.
(v) A fund is bequeathed to A for life, and, after his death, to B , if B shall be then living, with a proviso that, if B
shall become a nun, the bequest to her shall cease to have any effect. B becomes a Nun in the lifetime of
A . She thereby loses her contingent interest in the fund."
Scope and application. —It is permissible under this section to create an estate by the addition of a
condition subsequent whereby on the happening or non-happening of a specified uncertain event, such an estate is
to determine. An estate so created is known in English Law as a "determinable fee simple. 92 Unlike Section 28,
there is no gift over in the case contemplated by this section. It does not originate but determines an estate. The
estate created may be a qualified estate as in illustration (a) or an absolute estate as in illustration (b). Examples of
Page 2 of 3
S. 31 (A)
conditions subsequent in defeasance of a vested estate are afforded by cases relating to residence, marriage
settlements, name and arms clauses, introduced in English will settlements and leases. A clause in a deed laying
down that an absolute estate was to be divested on the happening of a particular contingency is not to be treated
as invalid. It is neither the law in England nor in India. 93
The illustrations to Section 31 are sufficiently suggestive of the position that a specified event contemplated under
Section 31 must be definite and specific and a wide and a vague clause of the nature of "any other business"
cannot be taken to be a specified event. 94
Where by a gift property was donated for construction of a College, subject to the condition that in case the college
was not built on the very site, the interest of the College Committee in the gifted land, would cease and by another
gift deed, the College Committee was given power to sell the gifted property and realize the proceeds thereof for
the construction of the college but there was no defeasance clause, it was held that the former gift and not the later
gift would be hit by the provisions of
Exceptions. —The rule in the section is subject to exceptions mentioned in Section 12 by which a
condition that an absolute transfer is to determine on the transferee becoming insolvent or endeavouring to transfer
or dispose of the property is void.
Section 134. —This section corresponds with

Section 31 of the Transfer of Property Act .See heading Analogous Law ante.
Hindu Law. —Provisions for defeasance on the occurrence of an uncertain event are legal and
enforceable subject to two limitations, viz. , that no rule of Hindu Law will be infringed and the rights of a transferee
for consideration without notice will be protected. A Hindu made a gift of his property on condition that it should be
restored to him on his return from Port Blair. It was held that the clause of reverter was valid and enforceable
against the transferee as well as his heirs. 96
Performance or non-performance of condition subsequent. —The performance or
non-performance of a condition subsequent under this section differs from the performance or non-performance of
a condition subsequent referred to in Section 28. In Section 31 there is no gift over but a mere cessation of the
interest created. In Section 28 there is a gift over on defeasance. Further, Section 29 which is supplemental to and
follows Section 28 requires the condition subsequent to be strictly fulfilled. No such imposition is laid in case of a
condition subsequent within the meaning of Section 31. This section is founded on an English case. 97
The non-performance of a condition subsequent under Section 31 can be compensated in damages but if the
condition be in the nature of a penalty the Court will relieve against it. 98
Purchaser’s failure to pay within a time fixed. —The vendor who had only received a part of the
purchase-money signed an acknowledgment in the conveyance of 15th July 1925 for the entire consideration. The
Page 3 of 3
S. 31 (A)
purchaser agreed to pay the balance to the vendor’s creditors by the 30th December 1925 and on his failure the
sale deed was to stand cancelled null and void. On the purchaser’s failure the vendor maintained that this was a
superadded condition within the meaning of Section 31 and on its breach the rights of the purchaser automatically
ceased. Their Lordships held that the receipt of the entire consideration by the vendor could not be taken literally,
so as to contradict a clear fact, that the balance had not been paid but was to be paid by the date prescribed and
that in their opinion there was nothing in Section 31 which declared that a limitation upon a condition subsequent
was a lawful method of grant to exclude the right of the Court to give relief to the purchaser who failed to make
payment of the price or part thereof by the date agreed upon in the contract of sale, which in the present case was
embodied in the same deed as the act of transfer. 99
Such condition must not be invalid.
92 Williams on Real Property, 24th Ed., p. 84.
93 Ahmad Azim v. Safi Jan ,

AIR 1926 Oudh 561 .
94 Krishna Chandra v. N.C.& S Works ,

AIR 1957 Ori 35 [
LNIND 1956 ORI 19 ] (37) (DB).
95 Govindamma v. Secy., Municipal First Grade College ,

AIR 1987 Kant 227 [
LNIND 1986 KANT 44 ] (235) :
ILR (1986) Kant 1175 [
96 Venkatarama v. Aiyasami ,
AIR 1923 Mad 67 ; Sreemathi Surjeemoney v. Deenobondo Mullick , (1862) 9 MIA
136 ; Kristoromani Dasi v. Narendra Krishna ,
(1882) 16 Cal 383 : 19 IA 29.
97 Popham v. Bampfeild , (1682) 1 Vern. 80 : 23 ER 325; Munshi Lal v. Ahmad Mirza ,

AIR 1933 Oudh 291 .
98 Sections
section 73 and
74 ,
Indian Contract Act , IX of 1872.
99 Devendra Prasad v. Surendra Prasad, (1935) 62 CLJ 436.
End of Document
Darashaw Vakil
S. 32.
In order that a condition that an interest shall cease to exist may be valid, it
is necessary that the event to which it relates be one which could legally
constitute the condition of the creation of an interest.
End of Document
S. 32. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —This corresponds to Section section 135, of the

Indian Succession Act, 1925 , which is as under :
"135. Such condition must not be invalid under Section 120 .— In order that a condition that a bequest
shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally
constitute the condition of a bequest as contemplated by Section 120 ."
Scope. —A condition subsequent under Section 31 as would effectively determine an estate created
must be such, that if it were a condition precedent, it would not be invalid under Section 25, that is to say, a
condition void in originating an estate is equally void in determining an estate. If a condition be annexed to an
estate which would otherwise be absolute, then on the happening of the condition the estate is defeated.
All that
Section 32 of the Transfer of Property Act provides is that "in order that a condition that an interest shall
cease to exist may be valid, it is necessary, that the event to which it relates be one which could legally constitute
the condition of the creation of an interest." If the condition is invalid it cannot be set up as a condition precedent for
crystallization of the interest created.1 Where the land was allotted by Industrial Corporation and the deed of
conveyance provided that if the construction of the building for the proposed building was not completed by the
allottee by a particular date the plot shall be resumed by the Corporation, and the interest of the allottee in the land
shall cease, the agreement was held valid and binding on the parties. 2
In a case where the donor grants an absolute estate to the donee and in a subsequent clause in the deed provides
that on the happening of a contingency the absolute estate would be curtailed to a life estate after the death of the
donee by exclusion of all the heirs at law of the donee from inheritance, such a clause is a defeasance clause as it
defeats or extinguishes the absolute estate and not a repugnant clause. 3
Page 2 of 3
S. 32. (A)
succeeded by his heirs from generation to generation, the settlement deed contained a further clause that if both
the wife and the son of the settlor died during the settlor’s lifetime the properties would revert to the settlor as an
granted to the son of the settlor to a life estate on the happening of the contingency. As such on the death of the
Effect of invalid condition subsequent. —The effect of a condition invalid under this section is not to
defeat the estate but the transferee takes the estate free from the obligation to perform the condition.
The rule against perpetuities. —In case of an estate limited as in the section the specified uncertain
event may be beyond the limit of the rule against perpetuities.
Numerous decisions in America have sustained conditions violating the rule against perpetuities without any
objection of remoteness occurring to anyone, thus creating an exception, arbitrary though it be, to the rule against
perpetuities. 5 There is no trace in the books of any rule which limited the period during which the determination of
an estate by condition should take effect and it is abundantly clear that the modern rule could not have applied
because the donor took not by way of new limitation but by the determination of the estate given. 6
Section 135. —This section corresponds with Section 32.
Transfer conditional on performance of act, no time being specified for performance.

1999 SC 296 (299) :
(1999) 2 SCC 37 [
LNIND 1998 SC 1066 ].

1999 SC 296 (299) :
(1999) 2 SCC 37 [
LNIND 1998 SC 1066 ].
Page 3 of 3
S. 32. (A)
3 Kali Sadhan v. K.K. Banerji,

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159) :
(1982) 1 CHN 184 : 86 CWN 583.
4 Kali Sadhan v. K.K. Banerji,

AIR 1982 Cal 158 [
LNIND 1981 CAL 336 ] (159, 160) :
(1982) 1 CHN 184 : 86 CWN 583.
5 GRAY, Rule Against Perpetuities , 3rd Ed., p. 294.
6 A.G. v. Cummins,
(1906) 1 IR 406 .
End of Document
Darashaw Vakil
S. 33.
Where, on a transfer of property, an interest therein is created subject to a
condition that the person taking it shall perform a certain act, but no time is
specified for the performance of the act, the condition is broken when he
renders impossible, permanently or for an indefinite period, the performance
of the act.
End of Document
S. 33. (A)
Darashaw Vakil
COMMENTS

"136. Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-
performance of which subject matter to go over.—Where a bequest is made with a condition superadded that, unless the
legatee shall perform a certain act, the subject-matter of the bequest shall go to another person, or the bequest shall cease
to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible
or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without
performing such act.
Illustrations
(i) A bequest is made to A , with a proviso that, unless he enters the Army, the legacy shall go over to B . A
takes Holy Orders, and thereby renders it impossible that he should fulfill the condition. B is entitled to
receive the legacy.
(ii) A bequest is made to A , with a proviso that it shall cease to have any effect if he does not marry B ’s
daughter. A marries a stranger and thereby indefinitely postpones the fulfillment of the conditions. The
bequest ceases to have effect."
Scope. —Where no time is fixed for the performance of a condition on which a transfer depends, it is
deemed to be broken where its performance is rendered impossible either permanently or for an indefinite period by
the grantee. The condition in the section is a condition precedent.
English Law different. —A devise in the following terms, "if either of the devisees should marry into the
families of Rivington or Gosling, and have a son, I give all my estate to him for life with remainders over; if not, to
Randal." The devisees married, but not into the favoured families. Lord Thurlow held that till they married, nothing
could vest, for marriage was a condition precedent : then could anything vest till the whole contingency became
impossible ? That suspends it during their lives. You suppose if they once married, they had lost all chance of
Page 2 of 2
S. 33. (A)
marrying a Rivington or a Gosling; if he had said so, it would have been very well. Suppose the girls had married
against consent, one of the husbands had died, and she had married into one of the favoured families, and had a
son, and that son was here claiming the estate, the Court would not incline to refuse him". 7 In another case, a
testator devised the estate on condition that the devisee take and use the testator’s name. The devisee died without
having taken the testator’s name. For eighteen months previous to his death he had suffered from insanity and for
six months previous to his death was in an asylum. 8 It was held that before the plaintiff could succeed it was
necessary to establish each of the two things, viz. , (1) that the condition in question was not a condition precedent
but subsequent, and (2) that the performance of the condition became impossible by the act of God and not by
mere default of the devisee.
Section 136. —This section differs from Section 33. Estates there referred to do not depend on a
condition precedent but are either a determinable fee or dependent on a condition subsequent with a gift over.
Illustration (i) is an example of the latter and (ii) of the former.
Section 34. —According to the rule in this section, where no time is fixed for performance of a
contingent contract, it shall be deemed impossible of performance when the person on whose conduct it depends,
does anything which renders it impossible within any definite time or otherwise than under further contingencies.
The illustration is an example of a condition precedent.
Transfer conditional on performance of act, time being specified.
7 Randal v. Payne , (1779) 1 Bro. CC 55 : 28 ER 980.
8 In re Greenwood, Goodhart v. Woodhead, (1902) 2 Ch. 198.
End of Document
Darashaw Vakil
S. 34.
Where an act is to be performed by a person either as a condition to be
fulfilled before an interest created on a transfer of property is enjoyed by
him, or as a condition on the non-fulfilment of which the interest is to pass
from him to another person, and a time is specified for the performance of
the act, if such performance within the specified time is prevented by the
fraud of a person who would be directly benefited by nonfulfilment of the
condition, such further time shall as against him be allowed for performing
the act as shall be requisite to make up for the delay caused by such fraud.
But if no time is specified for the performance of the act, then, if its
performance is by the fraud of a person interested in the nonfulfilment of the
condition rendered impossible or indefinitely postponed, the condition shall
as against him be deemed to have been fulfilled.
End of Document
S. 34. (A)
Darashaw Vakil
COMMENTS

"137. Performance of condition, precedent or subsequent, within specified time. Further time in case
of fraud. —Where the Will requires an act to be performed by the legatee within a specified time, either as a condition to be
fulfilled before the legacy is enjoyed, or as a condition upon the non-fulfillment of which the subject-matter of the bequest is
to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified,
unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to
make up for the delay caused by such fraud."
Scope. —The following are within the scope of the section.
(1) Transfer subject to a condition precedent.

(2) Transfer subject to a condition subsequent.
Nature of fraud. —Where time is specified, the fraud must be such as to prevent performance within
the specified time. Where no time is fixed, it must be such as to render performance impossible or indefinitely to
postpone it.
Essential features of fraud. —Fraud is defined in Section

section 17 of the Indian Contract Act, 1872 . To quote the words of Lord Cairns, "There must, in my
opinion, be some active mis-statement of fact, or, at all events, such a partial and fragmentary statement of fact, as
that the withholding of that which is not stated makes that which is stated, absolutely false".9 The statement must
be false to the knowledge of the person making it. "The general rule of law", said Bramwell, L.J., "is clear that no
action is maintainable for a mere statement, although untrue, and although acted on to the damage of the person to
whom it is made, unless that statement is false to the knowledge of the person making it". 10 To this rule should be
added what Lord Herschell said, "First in order to sustain an action of deceit there must be proof of fraud, and
nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been
made, (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I
Page 2 of 3
S. 34. (A)
have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who
makes a statement under such circumstances can have no real belief in the truth of what he states". 11
Who must commit the fraud. —The fraud must be :
(a) Where time is fixed
(i) of the person who would be directly benefited by the non-fulfilment of the condition
(b) Where no time is fixed
(i) of the person interested in the non-fulfilment of the condition.
Remedy for fraud. —(a) When time is specified.
(i) Is to allow the grantee further time as would make up for the delay caused by such fraud.
(b) Where no time is specified,
(i) Is to consider the condition as fulfilled if the performance is rendered impossible or indefinitely
postponed.
Indian Succession Act, Section 137 .—This corresponds to the first half of Section section 34 except
that in the
Indian Succession Act there are three kinds of transfer enumerated instead of two as in Section 34.
ELECTION
Election when necessary.

Page 3 of 3
S. 34. (A)
9 Peek Gurney , (1873) 43 LJ Ch. 19.
10 Dickson v. Reuter’s Telegram Co .,

(1877) 37 LT 370 .
11 Derry v. Peek,
(1889) 14 AC 337 .
End of Document
Darashaw Vakil
S. 35.
(1) Where a person professes to transfer property which he has no right to
transfer, and as part of the same transaction confers any benefit on the
owner of the property, such owner must elect either to confirm such transfer
or to dissent from it; and in the latter case he shall relinquish the benefit so
conferred, and the benefit so relinquished shall revert to the transferor or his
representative as if it had not been disposed of,
subject nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or
otherwise become incapable of making a fresh transfer,
and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee the amount or value of
the property attempted to be transferred to him.
Illustrations
The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B , giving
by the same instrument Rs. 1,000 to C . C elects to retain the farm. He forfeits the gift of Rs. 1,000.
In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B .
The rule in the first paragraph of this section applies whether the transferor does or
does not believe that which he professes to transfer to be his own.
A person taking no benefit directly under a transaction, but deriving a benefit under
it indirectly, need not elect.
A person who in his one capacity takes a benefit under the transaction may in
another dissent therefrom.
Exception to the last preceding four rules. — Where a particular benefit is

expressed to be conferred on the owner of the property which the transferor professes to transfer, and such
benefit is expressed to be in lieu of that property, if
Page 2 of 2
such owner claims the property, he must relinquish the particular benefit, but he is not bound to relinquish any
other benefit conferred upon him by the same transaction.
Acceptance of the benefit by the person on whom it is conferred constitutes an

election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would
influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.
Such knowledge or waiver shall, in the absence of evidence to the contrary, be

presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act
to express dissent.
Such knowledge or waiver may be inferred from any act of his which renders it
impossible to place the persons interested in the property professed to be transferred in the same condition as if
such act had not been done.
Illustration
A transfers to B an estate to which C is entitled, and as part of the same transaction gives
C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B .
If he does not within one year after the date of the transfer signify to the transferor
or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representatives
may, upon the expiration of that period, require him to make his election; and, if he does not comply with such
requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the
transfer.
In case of disability, the election shall be postponed until the disability ceases, or
until the election is made by some competent authority.
End of Document
S. 35. (A)
Darashaw Vakil
COMMENTS
Analogous Law. —The

Indian Succession Act , XXXIX of 1925, enacts a series of rules inSections 180 to 190 as applicable to
testamentary instruments similar to the rules laid down in Section 35 of this Act for the construction of deeds inter
vivos .
Scope and application. —The rule in the section applies to interests immediate, remote, contingent 12
of value or not of value. 13 It applies to persons governed by Hindu 14 and Mahomedan Law. 15
"Election is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or
alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he
should not enjoy both That he who accepts a benefit under a deed or will must adopt the whole contents of the
instrument." 16 By affirming or accepting the validity of the transaction made by a limited owner, a particular
reversioner may preclude himself from challenging the same, loosely called ratification, strictly speaking rule of
election. 17 The doctrine of election is founded on equitable principle that where a person persuades another to act
in a manner to his prejudice and derives any advantage from that, then he cannot turn around and claim that he
was not liable to perform his part as it was void. It applies where a vendor or a transferor of property tries to take
advantage of his own wrong. 18 The doctrine of election is the principle that the exercise of a choice by a person left
to himself of his own free will to do one thing or another binds him to the choice which he has voluntarily made, and
is founded on the equitable doctrine that he who accepts benefit under an instrument or transaction of his choice
must adopt the whole of it and renounce every thing inconsistent with it. The Court exercising jurisdiction in equity
will bind him to his election and preclude him from going behind the same. The principle of election does not require
any ratification even. 19 Election is confined to the case of a gift or Will 20 and does not apply in case of a legal
remedy. 21
Election is a defence available affecting property and "considers that as done which ought to have been done. 22 It
is statutorily recognised by
Section 35 of the Transfer of Property Act . It applies where a person professes to transfer property
which he has no right to transfer. Similarly, on the principle that a person may not approbate and reprobate, "a
species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais.
The principle that a person may not approbate and reprobate expresses two propositions : (1) that the person in
question, having a choice between two courses of conduct, is to be treated as having made an election from which
he cannot resile, and (2) that he will not be regarded, in general at any rate, as having to elected unless he has
taken a benefit under or arising out of the course of conduct which he has first pursued and with which his
subsequent conduct is inconsistent".23
Page 2 of 15
S. 35. (A)
Before there can be election there must be (1) a transfer of property by a person who has no right to transfer; (2) as
a part of the same transaction, he must confer some benefit on the owner of the property and (3) such owner must
elect either to confirm such transfer or to dissent from it. 24
To attract the application of the doctrine of election there must be two sets of properties, one to which the testator is
entitled and the other to which the person who gets a benefit is the owner and it is then that the owner legatee is put
to the necessity of election as to whether he would accept his gift in which case he should allow his property
bequeathed by the testator to devolve in the manner provided by the testator. The essence of the doctrine therefore
is that a person cannot affirm and at the same time dissent from the same document, accept one part and reject the
other, receive the benefit provided and refuse to give full effect to it. 25 It is not a principle which is peculiar to
English or Scottish or any other law but is based on a rule of justice that a person shall not at the same time affirm
and disaffirm the same transaction affirming to the extent of the benefit provided and disaffirming in so far as it is to
his prejudice. The affirmation and disaffirmation must be with reference to the same transaction or instrument. 26
In Master of Rolls in Miller v. Thurgood , 27 it was observed :
"If a testator, having an undivided interest in any particular property, disposes of it specifically, and gives to the co-owner of
the property a benefit under his will, the question of election arises. But if the disposes of it, not specifically but only under
general words, no question of election arises."
But as HALSBURY points out (Vide HALSBURY’S Laws of England , Vol. 14, p. 592, para 1097) in order to raise a
case of election under a will it must be clearly shown that the testator intended to dispose of the particular property
over which he had no disposing power. This intention must appear on the fact of the will either by express words or
by necessary conclusion from the circumstances disclosed by the will. The presumption, however, is that a testator
intends to dispose of his own property and general words will not usually be construed so as to include other
property. 28
Election only arises, where the legatee has to choose between his own property which might have been willed away
to somebody else and the property which belongs to the testator and which the testator has given to the legatee by
the will. 29 HALSBURY writes :—
"Where a testator by his Will purports to give property to A which in fact belongs to B and at the same time out of his own
property confers benefits on B . In such circumstances B is not allowed to take the full benefit given him by the Will unless
he is prepared to carry into effect the whole of the testator’s dispositions. He is accordingly put to his election to take either
under the instrument or against it. If he elects to take under the Will he is bound and may be ordered to convey his own
property to A ; if he elects to take against the Will and to keep his own property, and so disappoints A , then he cannot take
any benefits under the Will without compensating A out of such benefits to the extent of the value of the property of which A
is disappointed." 30
Page 3 of 15
S. 35. (A)
Where the property which the Will gave to one P would in any case have come to him as a member of the joint
family there was no question of election by P in the case. 31
Where a suit was for partition on the basis that the properties are tarward properties, the doctrine of election was
held inapplicable. 32
The doctrine of election is not available to cure an illegality. 33
Where no plea as to election has been raised nor issue framed and tried such a plea cannot be allowed to be raised
for the first time before the High Court 34 Where shebati right is benefit within the meaning of Section 35, is a mixed
question of fact and law and cannot be allowed to be raised for the first time in Letters Patent Appeal. 35
When right of election to the plaintiff transferor has not been given in the sale deed, he cannot be allowed to claim
that in lieu of disputed land he has elected alternative land. 36
Where M who inherited property from her husband by gift gave benefits both to the appellant and her sister, she
gave benefit to persons who had no title to the property, such persons at that time at best an expectancy, as such
there was no question of applying election in the case. 37
Nature of property to which the rule applies. —The rule applies to properties either or both of which
are moveable or immovable.
Doctrine of election. —By the doctrine of election is understood that when a person coming to claim
under an instrument says if it be a will, "pay me the legacy," or "hand over to me the particular property given to me
by that instrument," the executors have the right to say "you must conform to all the provisions of the instrument."
And if the instrument also disposes, or purports to dispose, of property which belongs by paramount title to the
person claiming under it, a case of election arises, and he cannot take under it the benefit which it gives him unless
he is prepared to fulfil the gift which it purports to make of his own property. In short, the rule may be stated in this
form, that no one can take under and against the same instrument, but taking under it such person is bound to fulfil
all its provisions. 38 By the well-settled doctrine which is termed in the Scottish Law the doctrine of "approbate" and
"reprobate" and in our Courts, the doctrine of "election", where a deed or will professes to make a general
disposition of property for the benefit of a person named in it, such a person cannot accept a benefit under the
instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with
them, 39 the maxim being " qui sentit commodum sentire debet et onus ."
Actual election and a duty to elect are distinct. —In all cases of election, a party having two claims
has an option of either and cannot be held concluded by equivocal acts performed in ignorance of the value of the
funds or properties or in ignorance of the necessity of electing. It must be collected from circumstances that there
was an apprehension in his mind that he was under a duty to elect and that the particular acts relied upon to
constitute election were intended by him to have that effect. 40
Page 4 of 15
S. 35. (A)
The rule as to election is to be applied as between a gift under a will and a claim de hors the will and adverse to it
and is not to be applied between one clause in a will and another clause in the same will. 41 The same rule would
apply to a deed.
Election when necessary. —In order to raise a case of election both the transfer of property belonging
to a third person by the transferor and the conferring by him of a benefit on the owner of that property must be part
of one and the same transaction. 42
Dispositions by separate instruments. —The dispositions which give rise to the application of the
doctrine may be by the same instrument or by a separate instrument provided that in the latter case the two deeds
are part of the same scheme or transaction. 43
Owner. —The word is used in a very wide sense and includes persons who have not only vested but
contingent rights, reversionary and remote as well as immediate interests. 44
Benefit. —In order to raise a case of election, the owner of the property must derive some benefit
thereby. If he does not obtain any benefit which is an essential basis of the rule, no question of election can arise. In
such a case the question would arise whether the disappointed transferee would be entitled to compensation if the
nature of the transaction is such as not to confer any benefit on the owner of the property. It is submitted that he
would not be entitled to any compensation as the case would not be one within the doctrine of the rule. A transfer
for a man’s benefit for the purpose of election would be regarded as a transfer made to himself. 45 The benefit may
be moveable or immovable. Both under the rule and the illustration the property transferred to the real owner is
higher in value than his own, otherwise there would be no benefit.
Where the plaintiff has derived benefit from the impugned transaction sale deed in the case, he must allege in the
plaint that he had elected to return the benefit derived by him under the sale deed, in the absence of any such
averment regarding election of his claim in the suit, the plaintiff would not be granted the any relief in the suit for
setting aside the sale deed. 46
Both provisions. —The answer to the question whether the owner of the property can retain his own
property and the benefit conferred on him by the transferor and claim to make good by way of compensation to the
disappointed transferee the value of the property belonging to him, would be, that he cannot have both the
provisions, for if he elects to retain his own property he is deemed to have dissented from the transfer and,
therefore, he must relinquish the benefit conferred on him. The ordinary principle is clear, that if a person gives
property by design or by mistake which is not his to give and gives at the same time to the real owner of it other
property such real owner cannot take both. The English rule applicable to wills permits the real owner to retain both,
subject to his making good the consequent loss to the disappointed legatee. 47
Equitable charge. —The section provides for compensation to the disappointed transferee according to
the amount or value of the property attempted to be transferred to him. Hence the rule enunciated in the section is
sometimes called the doctrine of compensation. The disappointed transferee may say to the owner that a Court of
Equity will not permit him to take away the transferor’s property until he allows him the benefit intended for him. The
very instrument which gives him the benefit, gives him the benefit burdened with an obligation, and the maxim " qui
sentit commodum, sentire debet et onus " applies. Thence arises the doctrine of an equitable charge or right to
realize out of the benefit the sum required to make the compensation. But if such property is not of sufficient value
Page 5 of 15
S. 35. (A)
to make the compensation, is the estate of the transferor liable to make good the deficiency ? The section is silent
on the point. It is submitted the answer should be in the affirmative.
The amount of compensation to which the disappointed transferee is entitled. — The disappointed
transferee is entitled to the amount or value of the property attempted to be transferred to him and not the amount
or value of the benefit attempted to be conferred on the owner of the property whose property the transferor
professes to transfer. The English rule limits compensation to the value of the benefit. 48
Compensation. —An election gives a right to compensation. The compensation provided for the
disappointed transferee is not the benefit conferred on the owner of the property but the amount or value of the
property attempted to be transferred to him and belonging to the owner, viz. , that intended for him. Compensation
is only made (1) where the transfer is gratuitous and the transferor has died before the election or otherwise
become incapable of making a fresh transfer, (2) where transfer is for consideration. Neither the section nor the
illustration refers to interest on the amount of compensation. Being in the nature of damages no interest, it is
submitted, would be allowed. The doctrine of election can never be applied unless there is a fund for compensation
or fee disposable property from which compensation can be made to the disappointed transferee. 49
Election is retrospective. —In case of moveable property this question would not arise, but where the
property attempted to be transferred consists of immovable property, and as a certain amount of time must elapse
between the date of the transfer and the date of election, the question arises, in case of election against the
instrument, as to whether the value of the property belonging to the real owner is to be taken for the purpose of
compensating the disappointed transferee as at the date of the transfer or the date of election to dissent from the
transfer. The English rule applied to Wills is to adopt the date of the death of the testator, that is to say, to revert to
the time of the will and not the date of the election. 50 The same rule, it is submitted, would apply to transfers inter
vivos . The injustice of proceeding on any other basis is obvious when one reflects that if the liability to elect has
been declared, a period is allowed for consideration and determination on the part of the person affected by such
liability and the actual election is frequently not made until some date after the instrument. Under the section a
period of more than a year is allowed and in case of persons under disability the election is postponed until the
disability ceases or some competent authority makes the election.
Belief of transferor. —It is not necessary that the transferor must be under a belief that the property
which he is disposing of is not his own. It is immaterial for the purpose of this rule what his belief was. 51
Deriving benefit indirectly. —Under the section a person who derives benefit independently of the
transaction and by a separate and distinct course need not elect. It is a principle well recognized in all cases of
election that a person taking under a derivative title need not elect. 52
Several benefits. —Where two or more benefits are conferred on the owner of the property professed
to be transferred and one of them is expressed to be in lieu of the property transferred, if the owner dissents from
the transfer he is not bound to abandon any other benefit conferred upon him by the transaction besides the one
conferred upon him expressly in lieu of his property.
Right to information. —A person who has to make an election is entitled to information necessary for
the purpose of enabling him to arrive at a decision and is thus entitled to know the precise value of the benefit
intended before election. 53 Hence a person making an election under a misapprehension of the value 54 or in
ignorance of the value is not bound by the election. 55 In case of a purdanashin woman there is a stricter adherence
Page 6 of 15
S. 35. (A)
to this rule. 56
What constitutes election. —The following rule is laid down in this behalf :—
(1) Acceptance of a benefit by the person on whom it is conferred constitutes an election by him to confirm the
transfer. But this is subject to two conditions :
(a) he must be aware of his duty to elect, and

(b) there must be proof of knowledge of circumstances which would influence the judgment of a
reasonable man in making election or proof of waiver of inquiry into such circumstances.
(i) Enjoyment for two years of the benefit by the person on whom it is conferred without doing any act
to express dissent raises a presumption of knowledge or waiver.
(ii) Such knowledge or waiver may be implied by acts when the person whose property is transferred
renders it impossible to place the person interested in the property professed to be transferred in
the same condition as if such act had not been done. Hence no person can be put to election
unless he has knowledge of both funds or properties and the necessity of electing. 57
Knowledge is not to be imputed as a matter of legal obligation. 58 Wilful abstention from inquiry into circumstances
aforesaid would amount to acceptance of the benefit. 59
English Law. —The following rules are deducible from the English authorities:—
1. The doctrine of election is not properly a rule of positive law but a rule of practice in equity. The knowledge
of it is not therefore to be imputed as a matter of legal obligation. 60
2. Remaining in possession of two estates held under titles not consistent with each other affords no decisive
proof of election. So that receipt of rents of both affords no proof of preference. 61
3. A party claiming under an instrument, raising, as he contends, a case of election in equity against a party in
possession under a legal right, must make out a clear and satisfactory case to entitle him to displace the
legal right. 62
4. To constitute a settled and concluded election there must be, first, clear proof that a person was aware of
the nature and extent of his rights and secondly, that having that knowledge, he intended to elect. 63
5. Where possession is referable to either of two inconsistent rights, the acts of a party bound to elect in order
to constitute election, must imply a knowledge of the rights and an intention to elect. 64
6. In order to establish a case of election by conduct, it must be shown that the person bound to elect has full
knowledge of his rights and acted with an intention to elect. 65
Page 7 of 15
S. 35. (A)
Forcing the election. —If the party liable to elect does not, within one year after the date of the transfer,
signify his intention to confirm or dissent from the transfer, the transferor or his representative may force the
election.
Limit of time. —The rule as to time is
(a) Election must be made within one year after the date of the transfer by the party liable to elect.
(b) By signifying his intention to confirm or dissent from the transfer to the transferor or his representative.
On failure
(c) The transferor or his representative may upon the expiration of a year from the date of the transfer require
him to make the election.
(d) He shall be deemed to have elected to confirm the transfer if within a reasonable time after such requisition
as in (1) he fails to comply with it. Right to enforce is not lost by delay. 66
Election by persons under disability. —A minor or lunatic is a person under disability, and when
election has to be made by such a person the time for election is postponed until (1) cessation of disability, or (2)
election is made by some competent authority.
Minor. —A minor should elect on attaining majority. 67 The powers conferred by Section 29 of the
Guardian and Wards Act (VIII of 1890) do not include the power to direct a guardian to make an election, but the
section in that part of the Act being enabling, it would not prevent the Court from exercising its general jurisdiction in
case of evident advantage.
Lunatic. —A lunatic being also a person under disability is not bound to elect until the disability ceases.
68
Unsound mind. —Where a person is not found so by inquisition still the rule would operate and the
Court would make the election when it was for the advantage of such a person. 69
Court may elect. —In cases of disability the election is not bound to stand over till the disability ceases
but the person interested may compel the election. In cases of infants the Courts in England makes the election by
reference to the Master 70 or when there are sufficient data before it by making the election itself. 71
Within what time should election be made in cases of disability. —The section is silent as to the
time within which election should be made by a person after his disability has ceased. It is submitted that the one
year time generally given by the Act would apply in such cases so that he would have a year after the disability has
ceased. In England, where no time is fixed, a minor was given six months after coming of age to make his election.
Page 8 of 15
S. 35. (A)
72
Cancellation of deed. —In case of election against the instrument the Court will not order the deed to
be delivered up for cancellation. 73
Claim of disappointed transferee. —A disappointed transferee is entitled to the value of the property
attempted to be transferred to him and not the value of the benefit sought to be conferred by the transferor on the
real owner.
Co-owner. —Under English Law, in case of wills it has been held that co-owners may elect separately,
the majority having no right to bind the minority. 74
Dealing with both properties. —If a party being bound to elect between two properties, not being
called upon to do so, continues in the receipt of rents and profits of both, such receipt affords no proof of preference
and so if the other property be under circumstances that it does not yield rent to be received by the party liable to
elect, but such party, particularly if with the knowledge and concurrence of the party entitled to call for such election,
deal with this property as his own, it would seem that such acts ought to be equally unavailable to prove an actual
election for in both cases there is an equal dealing with the two properties and, therefore, an absence of proof of
any intention to elect the one and reject the other. 75
Death of transferor. —The death of the transferor will not affect an election made after his death when
the real owner elects to confirm the transfer, but if he dissents from it the benefit relinquished by him shall revert to
the transferor’s representative as if it had not been disposed of, subject to the charge of making good to the
disappointed transferee the amount or value of the property attempted to be transferred to him.
Death of transferee. —If a transferee dies before election his representative would be entitled to take
the benefit under the transfer for there is nothing so far as the rule is concerned which requires his active part.
Death of owner of property before election. —There is no provision in the section when a party
bound to elect has died before election. It is submitted that no election in that event can be made. In England,
where a husband devised the wife’s jewels to the wife for life, the remainder to his son, and the wife made no
election or to have the jewels as her paraphernalia, it was held that her administrator could not make this claim. 76
Distinguished from this is the case of a son who died before his mother under whose deeds of appointment and will
an election had to be made by him, where it was held that as between his estate and the disappointed legatees of
his mother’s will the latter were entitled to put the son’s estate to election or, in other words, require the estate to
make good the benefits intended for them by the will. 77 In this case the son had left a will the effect of which, under
Section 33 of the Wills Act, was that his estate was in the same position as if he had survived his mother.
Double portions. —The cases of double portions have no analogy to election. It is true they involve
election but they do not depend upon election. 78
Page 9 of 15
S. 35. (A)
Forfeiture. —There is both a forfeiture and compensation involved in the doctrine. In case of dissent by
the real owner there is a forfeiture as regards him of the benefit conferred upon him by the instrument and out of the
benefit so forfeited compensation is payable to the disappointed transferee.
Power. —The principle has been applied where the first gift is made purporting to be in execution of a
power; so that if under a power to appoint children, the donee of the power appoints grand children but the children
are entitled under the instrument to other property, the grand children are entitled to put them to an election. But to
this rule, so far as regards appointments a notable exception is taken, viz. , that when there is an appointment to an
object of the power with directions that the same shall be settled, or upon any trust, or subject to any condition, then
the appointment is held to be a valid appointment, and the superadded direction, trust, or condition is void, and not
only void, but inoperative to raise any case of election. 79
Remainderman. —A remainderman is not bound by the election of the tenant for life. 80
Reversionary interest. —The liability of a party to be called upon to elect will not be affected by lapse
of time so long as his interest in either of the subject-matters or election is reversionary. 81
Undivided moieties. — J.C. , being entitled in fee to undivided moieties of two freehold houses and an
undivided moiety in a leasehold house, devised by his will "all that freehold messuage tenement or garden," etc. ,
referring to one of the houses only. The other moiety in the other house was devised to his co-owner who was
entitled to a moiety in the house devised as aforesaid. Held that the words were a gift of the entirety of the house
referred to, and raised a case of election as against the party entitled to the other moiety and who took beneficially
under the Will. 82
Void disposition. —When one of the dispositions in a Will is void the Court will not aid such an attempt
at disposition either by the application of the doctrine or election or otherwise. 83 The same rule would apply to a
deed. A void transaction cannot be verified. 84
When not put to election. —A person is not put to election :
(a) When he derives a benefit indirectly and not directly under the transaction.
(b) When he fulfils two capacities and if under one he takes a benefit he may in another dissent therefrom.
(c) When a benefit other than the one expressed to be in lieu of the property transferred is conferred upon him
by the transaction.
Mortgagee. —By his conduct a mortgagee may be bound by the doctrine of election. 85
Tenant’s undertaking to vacate the premises — Right of appeal if barred. — Election does not
apply to an undertaking given by a tenant for vacating the premises within specified time. It is not a transfer of
Page 10 of 15
S. 35. (A)
property by a person who has no right to transfer. The doctrine of election cannot be applied to deprive a person of
his statutory right to appeal, a tenant who has given undertaking to vacate the premises is not precluded from
exercising his right to approach higher Court. It is not exercise of option between two remedies open to him but
depriving him of his constitutional right which would be contrary to constitutional guarantee and against law. 86
The principle of "approbate and reprobate" or the law of election cannot be applied appropriately to preclude the
Supreme Court from exercising its jurisdiction under Article 136. The doctrine of election is founded on equitable
principle that where a person persuades another to act in a manner to his prejudice and derives any advantage
from that, then he cannot turn around and claim that he was not liable to perform his part as it was void. It applies
where a vendor or a transferor of property tries to take advantage of his own wrong. This principle cannot be
extended to shut out or preclude a person from invoking the constitutional remedy provided to him under Article
136. 87
Legal remedy—Election.— Election is confined to the case of a gift or Will 88 and does not apply in
case of a legal remedy. 89
APPORTIONMENT
Apportionment of periodical payments on determination of interest of person entitled.
12 See illustrations (ii) and (iii) to Section

Sections 182, Indian Succession Act , XXXIX of 1925.
13 Wilson v. Townshend , (1795) 2 Ves. 693 : 30 ER 846; Mohammad Ali Khan v. Nissar Ali
Khan ,
AIR 1928 Oudh 67 .
14 Rajamannar v. Venkatakrishnayya , (1902) 25 Mad 361 ; Tribhovandas Mangaldas v.

Yorke Smith , (1896) 20 Bom 316 ; Mangaldas v. Ranchhoddas , (1890) 14 Bom 438 ; Sha h Makhan Lal v. Srikishen
Singh , (1869) 12 MIA 157 : 2 Beng LR 44. Forbes v. Ameeroonissa , (1865) 10 MIA 340.
15 Sadik Husain Khan v. Hashim Ali Khan ,

(1916) 38 All 627 : 43 IA 212.
16 C. Beepathuma v. Shankaranarayana , AIR

1965 SC 241 (246, 247) :
(1964) 5 SCR 836 .
17 Kamalini v. Himangshu ,
AIR 1956 Cal 211 [
LNIND 1955 CAL 160 ] (213) (DB).
Page 11 of 15
S. 35. (A)
18 Prashant Ramchandra Deshpande v. Maruti Balaram Haibatti , 1995 Supp (2) SCC 539
(541) :
1995 (2) UJ 305 .
19 K . Shanmugham Pillai v. S. Shanumugham Pillai ,

AIR 1968 Mad 207 [
LNIND 1966 MAD 208 ] (DB).
20 Nihar v. Anath Nath ,

AIR 1956 Pat 223 (226) (DB) :
1956 BLJR 177 .

AIR 1956 Pat 223 (226) (DB) :
1956 BLJR 177 .
(541) :
1995 (2) UJ 305 , citing HALSBURY’S Laws of England , 4th Edn., Vol. 16 para
1372.
(541) :
1995 (2) UJ 305 , citing HALSBURY’S Laws of England , 4th Edn., Vol. 16, para
1507.
24 Dhanpatti v. Devi Prasad ,

1970 (3) SCC 776 (778).
25 Parukutty Amma v. Lakshmi Amma ,

AIR 1954 Mad 556 [
LNIND 1953 MAD 117 ] (559).

AIR 1954 Mad 556 [
LNIND 1953 MAD 117 ] (559).
27
(1864) 10 LT 255 .
28 Mani v. Mani , AIR 1969

SC 1311 (1315) :
(1969) 1 SCC 828 [
LNIND 1969 SC 138 ].
29 Valliammai Achi v. Nagappa Chettiar ,

AIR 1967 SC 1153 [
LNIND 1967 SC 17 ] (1155) :
(1967) 2 SCR 448 [
LNIND 1967 SC 17 ].
Page 12 of 15
S. 35. (A)
30 HALSBURY’S Laws of England, Third Edition, Vol. 14, Page 588, Para 1091.
31 Valliammai Achi v. Nagappa Chettiar , AIR 1967 SC 1153 (1155, 1156) :

(1967) 2 SCR 448 [
LNIND 1967 SC 17 ].

AIR 1954 Mad 556 [
LNIND 1953 MAD 117 ].
33 Abdul Kafoor v. Abdul Razak ,

AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (136) (DB) : 1958 (2) Mad LJ 492.

1970 (3) SCC 776 (778).
35 Radha Gobinda v. Kewala Devi ,

AIR 1974 Cal 283 [
LNIND 1974 CAL 73 ] (286).
36 Piara Singh v. Charan Singh,

AIR 2009 (NOC) 3020 (P&H).

1970 (3) SCC 776 (778).
38 In re Brooksbank Beauclerk v. James , (1887) 34 Ch. D. 160; Cooper v. Cooper , (1874)

L.R. 7 HL 53; Whistler v. Webster , (1794) 2 Ves. 367 : 30 ER 676.
39 Codrington v. Codrington,
(1875) 7 HL 854 .
40 Morgan v. Edwards , (1827) 1 Bli. N.S. 401 : 4 ER 922.
41 Wollaston v. King , (1869) 8 Eq. 165; Nihar v. Anath Nath ,

AIR 1956 Pat 223 (226) (DB) :
1956 BLJR 177 .
42 Mahammad Afzal Khan v. Ghulam Kasim Khan ,

(1903) 30 Cal 843 : 30 IA 190.
43 Douglas Menzies v. Umphelby,

(1908) AC 224 .
44 Mohammad Ali Khan v. Nisar Ali Khan,

AIR 1928 Oudh 67 .
Page 13 of 15
S. 35. (A)
45 See Section
Sections 183, Indian Succession Act , XXXIX of 1925.
46 Srinivasam Pillai v. Subramanian , 2006 (3) Mad LJ 92 (98) (Mad).
47 Pickersgill v. Rodger , (1877) 5 Eq. 163; Streatfield v. Streatfield , (1735) 1 Swan 436 n :
25 ER 724; Ker v. Wauchope , (1819) 1 Bli. 1 : 4 ER 1; Gretton v. Haward , (1819) 1 Swan 409 : 36 ER 443; Re.
Varden’s Trusts , (1884) 28 Ch. 124.
48 Welby v. Welby , (1813) 2 Ves. and B. 187 : 35 ER 290; Codrington v. Codrington,

(1875) 7 HL 854 .
49 Spread v. Morgan , (1865) 11 HLC. 588 : 11 ER 1461; Bristow v. Warde , (1794) 2 Ves.
336 : 30 ER 660; Re. Fowler’s Trusts , (1859) 27 Beav. 362 : 54 ER 142.
50 Re. Hancock, Hancock v. Pawson , (1905) 1 Ch. 16; Re. Macartney, Macfarlane v.
Macartney , (1918) 1 Ch. 300.
51 Coutts v. Ackworth , (1870) L.R. 9 Eq. 519.
52 Brown v. Brown , (1866) 2 Eq. 481; Grissell v. Swinhoe , (1869) 7 Eq. 291.
53 Whistler v. Webster , (1874) 2 Ves. 267 : 30 ER 676.
54 Kidney v. Coussmaker , (1806) 12 Ves. 136 : 33 ER 53.
55 Pusey v. Desbouvrie , (1734) 3 P. Wms. 315 : 24 ER 1081; Harvey v. Ashley , (1748) 3

Atk. 607 : 26 ER 1150.
56 Indubala v. Manmatha ,
AIR 1925 Cal 724 ; Triguna Sundari v. Radharani Dasi, (1923) 37 CLJ 20 ; Sadik
Husain v. Hashim Ali ,
(1916) 38 All 627 : 43 IA 212.
57 Whistler v. Webster , (1794) 2 Ves. 367 : 30 ER 676.
58 Spread v. Morgan,
(1865) 11 HL 588 : 11 ER 1461.
59
Section 2 of the Transfer of Property Act , IV of 1882.
(1865) 11 HL 588 : 11 ER 1461.
Page 14 of 15
S. 35. (A)
(1865) 11 HL 588 : 11 ER 1461.
62 Dillon v. Parker , (1833) 1 Cl. & Fin. 303 : 5 ER 796.
63 Worthington v. Wiginton , (1855) 20 Beav. 67 : 52 ER 527.
64 Dillon v. Parker , (1833) 1 Cl. & Fin. 303 : 5 ER 796.
65 Wilson v. Thornbury , (1875) 10 Ch. App. 239.
66 Spread v. Morgan , (1865) 11 HL Cas. 588 : 11 ER 1461; Padbury v. Clark , (1850) 19 LJ

Ch. 533 : 43 ER 115.
67 Streatfield v. Streatfield , (1735) Cas. temp. Talb. 176 : 25 ER 724; (six months after
attaining majority were allowed); Whistler v. Whistler , (1794) 2 Ves. 367; Cooper v. Cooper,
(1874) 7 HL 53 ; Re. Varen’s Trusts , (1884) 24 Ch. D. 124; Re. Hancock , Hancock
v. Pawson , (1905) 1 Ch. 16.
68 Re. Sefton (Earl) , (1898) 2 Ch. 378.
69 Wilder v. Pigott , (1882) 22 Ch. D. 263.
70 Bigland v. Hudelestone , (1789) 3 Bro. C.C. 285n : 29 ER 539; Ebrington v. Ebrington ,

(1820) 5 Mad 117 : 56 ER 839.
71 Lamb v. Lamb,
(1857) LTOS 372 ; Re. Montagu, Faber v. Montagu , (1896) 1 Ch. 549.
72 Streatfield v. Streatfield , (1735) Cas. temp. Talb. 176 : 25 ER 724.
73 Weale v. Rice , (1834) 4 LJ Ch. 39.
74 Fytche v. Fytche , (1868) 7 Eq. 494.
75 Padbury v. Clark , (1850) 19 LJ Ch. 533 : 42 ER 115.
76 Clarges v. Albemarle , (1691) 2 Vern. 245 : 23 ER 758.
77 Pickersgill v. Rodger , (1877) 5 Ch. D. 163.
78 Pulteney v. Darlington (Lord) , (1776) cited in 3 Ves. at p. 529 : 30 ER 1141.

Page 15 of 15
S. 35. (A)
79 Wollaston v. King , (1869) 8 Eq. 165; Whistler v. Webster , (1794) 2 Ves. 367 : 30 ER
676; In re Brooksbank, Beauclerk v. James , (1887) 34 Ch. D. 160.
80 Ward v. Baugh , (1799) 4 Ves. 623 : 31 ER 321; Long v. Long , (1800) 5 Ves. 445 : 31
ER 674.
81 Padbury v. Clark , (1850) 19 LJ Ch. 533 : 42 ER 115.
82 Padbury v. Clark , (1850) 19 LJ Ch. 533 : 42 ER 115; Fitzsimons v. Fitzsimons , (1860)

28 Beav. 420 : 54 ER 426.
83 Woollaston v. King , (1869) 8 Eq. 165.
84 Abdul Kafoor v. Abdul Razak ,

AIR 1959 Mad 136 (DB) : ILR 33 Cal 363 - Not good law); Maganlal v. Ramanlal ,
AIR 1943 Bom 362 .
85 C. Beepathuma v. Shankaranarayana , AIR

1965 SC 241 (246, 247) :
(1964) 5 SCR 836 .
(541) :
1995 (2) UJ 305 :
(1995) 2 SCALE 804 .
(541) :
1995 (2) UJ 305 :
(1995) 2 SCALE 804 .

AIR 1956 Pat 223 (226) (DB) :
1956 BLJR 177 .

AIR 1956 Pat 223 (226) (DB) :
1956 BLJR 177 .
End of Document
Darashaw Vakil
S. 36.
In the absence of a contract or local usage to the contrary, all rents,
annuities, pensions, dividends and other periodical payments in the nature
of income shall, upon the transfer of the interest of the person entitled to
receive such payments, be deemed, as between the transferor and the
transferee, to accrue due from day to day, and to be apportionable
accordingly, but to be payable on the days appointed for the payment
thereof.
End of Document
S. 36. (A)
Darashaw Vakil
COMMENTS
Scope and application. —The section applies on a transfer of property, whether moveable or
immoveable, as it forms part of a chapter which has been made applicable to both.
The section applies only as between transferor and transferee. One of the parties to the transaction cannot decline
to apportion. The section is mandatory. Section 36 enacts the rule relating to apportionment. The section has to be
read along with Section 8. 90 The principle of Section 36 as a rule of justice, equity and good conscience would
apply even to agricultural rents. 91 An agreement to pay rent of one years lease at a specified date has been held a
contract to the contrary. 92
Rents and profit accruing before the transfer are not legal incidents of the property transferred. 93
Section 36 applies in the absence of a contract or local usage to the contrary, and also applies as between the
transferor and the transferee. There is no room for the application of these provisions as between the subject and
the Crown. 94
The contract to the contrary must of necessity be as between the transferor and the transferee and it is only when
there is no such contract to the contrary that the rents, annuities, pensions, dividends and other periodical
payments in the nature of income become apportionable as between the transferor and transferee, deemed to
accrue due from day to day and be apportionable accordingly. 95 Where the deeds of assignment and transfer
executed by the Sassoons in favour of the transferees transferred all the rights and benefits under the Agency
Agreement to the transferees, there was no question of apportionment of any commission between the Sassoons
and the transferees. 96
The payment of the items mentioned in the rule is deemed to accrue from day to day and to be apportionable
accordingly, but payable on the days appointed for that purpose and not on the day the apportionment is made.
Page 2 of 7
S. 36. (A)
The right to receive such periodical payments as are mentioned in the rule and not the liability to pay is
apportionable. 97
The section comes into operation on a transfer by act of parties of the interest of the person entitled to receive
payments of the description enumerated in the section.
Section 36 of the T.P. Act , provides for apportionment between the transferor and the transferee of
periodical payments in the nature of rents, annuities, pensions, dividends etc. This section is applicable only
between the transferor and the transferee. It does not affect the liability of the tenant which must be determined
independent of it. 1
Where a transferor transfers the premises to the transferee on 14th June 1972, in view of the provisions of Section
8, the transferee plaintiff is entitled to recover rent from the tenant for the entire month of June which fell due on the
1st of July 1972, even in the absence of any assignment of arrears. 2
Execution proceedings. —Though as per Section 2 (d),

T.P. Act , does not apply to sales in execution yet the principle of Section 36, which embodies the rule of
justice, equity and good conscience applies to execution proceedings.3
Joint family partition. —Principle of Section 36 is not applicable to cases of partition of joint families. 4
Section 36 applies only to transfer inter vivos , and it is only on the ground of justice, equity and good conscience
that the section has been applies to other cases. 5
Lease. —The apportionment contemplated by Section 36 is one following the transfer of interest of the
person entitled to receive the rent. Where there was no transfer of interest of the lessor who was entitled to receive
the rent, the provisions of Section 36 would not be attracted. 6
"Other periodical payments in the nature of income". —These words also occur in the English
Apportionment Act, 1870 7 which applies to deeds testamentary and inter vivos to rights as well as liabilities. 8 The
English Courts in construing wills have held that these words do not include partnership profits which are
ascertained and payable at the discretion of certain individuals. They must become due at fixed periods and not
depend upon the state of the business and the discretion of the managing partner. Such a payment is never
apportionable. 9
Deposit for redemption. —On the date of deposit the property is deemed to have been transferred to
Page 3 of 7
S. 36. (A)
the mortgagor and he is entitled to the rents from such date. 10
Time limit in apportionment. —The general principle of apportionment of income is to deem that as
between the transferor and transferee rents are to accrue due from day to day and to be apportionable accordingly
but the payment is to be made on the day appointed for the payment thereof. 11 In case of crops, payments have
been apportioned by the season. 12 There is no warrant for the view taken by the Calcutta High Court that Section
36 does not apply to agricultural leases. 13 The principle of Section 36 as a rule of justice, equity and good
conscience would apply even to agricultural rents. 14
Exceptions to the rule. —The rule in the section has no application when parties are governed by their
contract or there is a law 15 or local usage to the contrary. A stipulation to pay rent of a year’s lease at a particular
date is a contract to the contrary nor does the rule apply to 16 transfers by operation of law 17 or by or in execution
of a decree or order of a Court of competent jurisdiction. 18
Dividend on shares declared subsequent to the date of the purchase. — Ordinarily, in the absence
of a contract to the contrary a purchaser is entitled to all dividends declared after the date of his purchase. This
general rule may be modified by special stipulation. Where shares are sold, whether by private treaty or by public
auction, and it is definitely understood that the shares and not the dividends thereon are the subject of bargain, the
purchaser cannot deprive the original owner of his right to the dividend of a period anterior to the sale even though
the dividend may have been declared subsequent to the date of the purchase. 19 This is contrary to the decision in
Black v. Homersham 20 where certain shares were sold by public auction on the 1st of August and the
deposit paid. Transfers were signed on the 29th August. The conditions of sale were silent as to dividends. On 24th
August a dividend was declared in respect of a period antecedent to the sale by auction. It was held that the
dividend belonged to the purchaser on the ground that the completion of the sale had relation back to the time
when the contract was made.
Rent paid in advance. —The section has no application to rent paid in advance for no rent can be paid
in advance, such a payment being regarded as a loan. The parties may, however, stipulate that the rent shall be
paid monthly or quarterly and in advance. It has been held that the Apportionment Act, 1870, does not apply to
rents, annuities, dividends and other payments in the nature of income which have accrued due before happening
of the event by reason of which it is proposed to apply the Act: the Act, therefore, does not apply to rent payable in
advance and the landlord re-entering on breach was entitled to recover the whole amount. 21
The Apportionment Act which provides that rent shall be considered as accruing from day to day does not alter the
date on which it becomes due. 22
Garnishee. —Rent cannot, before it is payable, be attached under a garnishee order as a debt owing or
accruing due. 23
Apportionment of annuities given by will. —These are regulated by the

Page 4 of 7
S. 36. (A)
Indian Succession Act, 1925 .24
The older English Law. —Cases, however, are met with where the strict application of the rule
enunciated in the section not being applicable, the Courts have resorted to the English Law as it existed prior to the
Statute Law. The English Apportionment Act of 1870 provides that after its passing all rents, annuities and other
periodical payments in the nature of income are, unless it is expressly stipulated that no apportionment is to take
place, to be considered as like interest on money lent, accruing from day to day, and shall be apportionable in
respect of time accordingly. But this Act does not apply in India, nor do any of the earlier English Apportionment Act
s. The principle, therefore, applied in such cases has been the original English Law as it stood apart from statute.
The older English Law on the subject has been stated by Lord Eldon in Ex-parte Smyth . 25 It was applied by the
Privy Council where a question arose of an apportionment between the settlors, executors and successive
beneficiaries. There under a deed of settlement dated 1913 the question arose whether income derived from rents
and shares was apportionable de die in diem , (1) between the estate of the deceased settlor (who had retained a
lifeinterest) and persons benefically entitled for a period of 13 months after death, and (2) between those persons
and persons beneficially entitled after that period. The Judicial Committee held that the income was not so
apportionable since an intention to that effect was not expressed clearly and unambiguously in the deed. 26 The
Madras High Court, on the ground that the section embodies a rule of justice, equity and good conscience,
apportioned rent between a lessor and the transferee of his right in execution 27 and between an assignee from the
lessee and the lessor of rent accruing due after the date of assignment to him upto the time of transfer of his
interest as assignee to a third person, 28 and held that an assignee of a tenant for life was entitled to an apportion
ment of the rent due upto the date of the death of the tenant for life. 29 The section applies only to transfers inter
vivos and not to cases of devolution of interest on death. 30
Apportionment of benefit of obligation on severance.
90 S.K. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate , AIR

1997 SC 998 (1001) :
(1996) 6 SCC 373 [
LNIND 1996 SC 1681 ].
91 Poongavanam Pillai v. Subramanya Pillai ,

AIR 1951 Mad 601 [
LNIND 1950 MAD 141 ] (603) :
1951 (1) MLJ 69 [
LNIND 1950 MAD 141 ].
92 Puthiyaduthlikkadam Nair v. Narikot Meenakshi Ammal ,

AIR 1955 NUC 2450 (Mad).
93 Poongavanam v. Subramanya ,
AIR 1951 Mad 601 [
LNIND 1950 MAD 141 ] (603) :
1951 (1) MLJ 69 [
LNIND 1950 MAD 141 ] :
1951 MWN 184 .
Page 5 of 7
S. 36. (A)
94 Vide Commrs. of Inland Revenue v. Henderson’s Executors’ , (1931) 16 Tax CAs 282 at
p. 291 (Z12); E.D. Sassoon & Co. Ltd. v. I.T. Commr. , Bombay, AIR
1954 SC 470 (486) :
(1955) 1 SCR 313 [
LNIND 1954 SC 94 ].
95 E.D. Sassoon & Co. Ltd. v. I.T. Commr. , Bombay, AIR

1954 SC 470 (486) :
(1955) 1 SCR 313 [
LNIND 1954 SC 94 ].
96 E.D. Sassoon & Co. Ltd. v. I.T. Commr. , Bombay, AIR

1954 SC 470 (486) :
(1955) 1 SCR 313 [
LNIND 1954 SC 94 ].
97 Satyendra v. Nilkantha ,
(1894) 21 Cal 383 .
1 Satyabhamadevi v. Ramkishore ,
AIR 1975 MP 115 [
LNIND 1974 MP 59 ] (125) :
1974 MPLJ 906 .
AIR 1975 MP 115 [
LNIND 1974 MP 59 ] (124) :
1975 Jab LJ 57 .
3 Rangiah Chetty v. Vajravelu Mudaliar

,
AIR 1918 Mad 557 [
LNIND 1917 MAD 209 ] (FB) : (1918) 41 Mad 370 : 43 IC 78; Y.S. David v. Bangaru
Rangaraju ,
AIR 1944 Mad 568 [
LNIND 1944 MAD 119 ] (569) :
1944 (2) MLJ 51 :
1944 MWN 479 . (The rent between the auction-purchaser and the DH was
apportioned in execution proceedings.)
4 Mahamad Kunhi v. Ibrayami Hazi ,

AIR 1959 Ker 208 [
LNIND 1958 KER 48 ] (211) :
1959 Ker LT 75 [
5 Mahamad Kunhi v. Ibrayami Hazi ,

AIR 1959 Ker 208 [
LNIND 1958 KER 48 ] (211) :
1958 Ker LJ 472 .
6 SKG Sugar ltd. v. DG Mehta ,

AIR 1964 Pat 258 (260) (DB).
Page 6 of 7
S. 36. (A)
7 33 and 34 Vict., C. 35, S. 2.
8 Re. Wilson, ex-parte Hastings,

(1893) 62 LJQB 628 ; Rochester v. Le Fann , (1906) 2 Ch. 513; Re. Howell, Ex-
parte Mandleberg,
(1895) 1 QB 844 .
9 In re Cox’s Trust , (1878) 1 Ch. D. 159; Jones v. Ogle , (1872) 8 Ch. App. 182.
10 Lala Ganga Ram v. Mewa Ram Singh ,

AIR 1922 All 275 .
11 Mohammad Ashkar v. Mohammad Abul ,

AIR 1927 Oudh 605 .
12 Nand Kishore v. Ram Sarup ,

(1928) 50 All 18 ; Ma Hawa v. Sein Kho , AIR 1928 Rang 67.
13 Satya Bhupal v. Rajnandini ,

AIR 1924 Cal 1069 .
14 Poongavanam Pillai v. Subramanya Pillai ,

AIR 1951 Mad 601 [
LNIND 1950 MAD 141 ] (603) :
1951 (1) MLJ 69 [
LNIND 1950 MAD 141 ].
15 Ram Ranbijaya v. Harihar Prasad , (1937) 16 Pat 184.
16 Subbaraju v. Seetharamaraju , (1916) 39 Mad 283.
17 Section 2 (d),
Transfer of Property Act , IV of 1882;Mathewson v. Shyam Sunder ,
(1906) 33 Cal 786 ; Aparna Debi v. Shri Shri Shiva Prasad ,
AIR 1924 Pat 451 contra .
18 Section 2 (d),
Transfer of Property Act , IV of 1882;Satyendra v. Nilkantha ,
(1894) 21 Cal 383 ; Subbaraju v. Seetharamaraju , (1916) 39 Mad 283 ; U. Kyaw v.
Ah. Doc , AIR 1924 Rang 365.
19 Co-operative Co. Ltd. v. Bhugwan Das & Co.,

AIR 1930 All 615 .
20 (1878) 4 Ex. D. 24.

Page 7 of 7
S. 36. (A)
21 Ellis v. Towbotham,
(1900) 1 QB 740 .
22 Re. United Club & Hotel Co .,

(1889) 60 LT 665 .
23 Barnett v. Eastman,
(1898) 67 LJQB 517 .
24 XXXIX of 1925, secs. 338 to 340.
25 (1818) 1 Swans 337 : 36 ER 412.
26 Phirozshaw v. Bai Goolbai , (1923) 47 Bom 790 : 50 IA 276.
27 Rangiah Chetty v. Vajravelu , (1918) 41 Mad 370 ; see also Chinnathambiar v. Veerappa
Pandian ,
AIR 1937 Mad 219 and David v. Rangarajir ,
AIR 1944 Mad 568 [
LNIND 1944 MAD 119 ].
28 Kunhi Sou v. Mulloli Chattu , (1915) 38 Mad 36.
29 Lakshminaranappa v. Melothraman , (1903) 26 Mad 540.
30 Pandia Chinna Thambiar v. Veerappa Pandian,

(1937) 1 MLJ 77 [
LNIND 1936 MAD 268 ] ; Shibaprasad v. Prayag Kumari ,
(1933) 61 Cal 711 ; Aparna Debi v. Sree Sree Shiva Prasad , (1924) 3 Pat 367.
End of Document
Darashaw Vakil
S. 37.
When, in consequence of a transfer, property is divided and held in several
shares, and thereupon the benefit of any obligation relating to the property
as a whole passes from one to several owners of the property, the
corresponding duty shall, in the absence of a contract, to the contrary
amongst the owners, be performed in favour of each of such owners in
proportion to the value of his share in the property, provided that the duty
can be severed and that the severance does not substantially increase the
burden of the obligation; but if the duty cannot be severed, or if the
severance would substantially increase the burden of the obligation the
duties shall be performed for the benefit of such one of the several owners
as they shall jointly designate for that purpose :
Provided that no person on whom the burden of the
obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until
he has had reasonable notice of the severance.
Nothing in this section applies to leases for agricultural purposes unless and until
the Local Government by notification in the Official Gazette so directs.
Illustrations
(a) A sells to B , C and D a house situated in a village and leased to E at an annual rent of Rs. 30 and delivery of one
fat sheep, B having provided half the purchase-money and C and D one quarter each. E , having notice of this,
must pay Rs. 15 to B , Rs. 7.50 to C , and Rs. 7.50 to D , and must deliver the sheep according to the joint
direction of B , C and D .
(b) In the same case, each house in the village being bound to provide ten days’ labour each
year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A , B , C and D severally
require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work
in all, according to such directions as B , C and D may join in giving.
End of Document
S. 37. (A)
Darashaw Vakil
COMMENTS
Scope of the section. —Performance of duty on apportionment of estate when as a consequence of

transfer a property
(1) is divided and held in several shares and

(2) therefore passes from one to several owners
The corresponding duty shall be performed
in favour of each such owner
in proportion to the value of his share.
Provided :
(a) Duty can be secured

(b) Severance does not substantially increase the burden of the obligation.
See the first part of illustration (a)
Otherwise
(c) for the benefit of such one of the several owners as they shall jointly designate for that purpose.
See illustration (b) and the second part of illustraion (a)
Provided further :
Page 2 of 5
S. 37. (A)
No person shall be liable for failure to discharge such duty unless he has had reasonable notice of the
severance.
Exception. —The section has also no application—
(d) When there is a contract contrary to that specified in this rule amongst the coowners. Under Section 37 a
tenant liable to pay rent need not be consulted, provided his burden does not increase, whereas under
Section 109 a right is given to the tenant in determination of the rent payable on a transfer.
(e) To agricultural leases excluded by para 3 of this section.

(f) To transfers by operation of law or by or in execution of a decree or order of a Court of competent
jurisdiction according to Section 2 (d) of the present Act.
S. 109 does not apply to a case where only a share in the property leased or a share in any part thereof is
transferred. In such a case Section 37 is applicable. 31 Section 37 is not applicable in cases where the reversion of
the land is severed as a result of partition. 32
Severance of benefit of obligation. —As Section 36 deals with apportionment of interest by time this
section deals with apportionment of benefit of obligation to which a transferee is entitled on disruption of the estate.
Apportionment of obligation. —Section 82 deals with apportionment of obligation. Moveables. —The

section applies to a transfer of property, whether moveable or immoveable.
Notice. —One of the obligations contemplated by this section is the payment of rent by a tenant. There
are various provisions of the Act which deal with the liability of a tenant for payment of rent to the transferor. He is
not liable unless and until
(a) under Section 37 he has had reasonable notice of the severance,
(b) under Section 50 if he in good faith pays such rent to the person of whom he in good faith held such
property,
(c) under Section 109 not having reason to believe that such transfer has been made, pays rent to the lessor.
Notice under (a) must be actual. It need not be in writing. It may be acquired by the agent of the person sought to
be charged.
Apportionment prior to the Act. —A sale of a share in a tenure, let out to a tenant in its entirety, does
not of itself necessarily effect a severance of the tenure or an apportionment of the rent; but if a purchaser of the
share desires to have such a severance, he is entitled to enforce it. If he takes no steps for that purpose, then the
tenant is justified in paying the rent to all the parties jointly entitled to it. But if the purchaser desires to effect a
severance of the tenure and an apportionment of the rent, he must give the tenant due notice to that effect, and
Page 3 of 5
S. 37. (A)
then if the parties cannot agree to an apportionment, the purchaser may sue the tenant for the purpose of having
the rent apportioned, making all the other co-sharers parties to the suit. 33
How rent apportioned. —Under Section 37 the rent is apportioned in proportion to the value of shares
of the transferees provided it can be severed and the severance does not increase the burden of the tenant’s
obligation. No such proviso has, however, been appended to Section 109 dealing with the right of lessor’s
transferee which provides that the lessor, the transferee and the lessee may determine what proportion of the
premium or rent reserved by the lease is payable in respect of the part so transferred, and in case they disagree
such determination may be made by any Court having jurisdiction to entertain a suit for possession of the property
leased. When the lessor recognizes the right of another in the premises demised the tenants are bound to pay to
each of the owners his proportionate share of the rent. 34
Assignee of a lessee. —The title of the assignee of a lessee is complete upon execution and where
necessary registration of the deed. On completion he becomes entitled to claim rent. The tenant is discharged on
proof of payment to the assignor without notice. If he has paid after notice, actual or constructive, he cannot escape
liability merely by proof that the notice he received was from the assignee and not the assignor. 35
Value of his share. —The duty which a person is under an obligation to perform under this section
varies on a transfer towards each of the transferees in proportion to the value of his share in the property
determined according to the rule laid down in Section 45 of this Act.
Enhancement. —One co-sharer cannot enhance the rent of his share, such an enhancement being
inconsistent with the continuance of the lease of the entire tenure. 36
Frame of suit for apportionment of rent. —On the principle that creditors could sever their mutual
relations and sue their debtors separately for their shares of the debt provided this be done in such a manner as to
free the debtor from all further liability to any of them, it has been held that in a suit for apportionment of rent where
other parties interested have been made parties to the suit the rent could be apportioned and the apportionment
may take place in respect of both the arrears alleged to be due and the future rent. 37 In the absence of special
agreement between a tenant and co-sharer to pay their rateable proportion of the rent, a suit by one of the co-
sharers must be for the entire rent due making his co-sharers defendants if they refuse to join as plaintiffs. 38
Co-sharers. —A purchaser is a transferee from the date of execution of the Kobala. If she paid the full
consideration money before that date and without notice of the contract entered into by a prior buyer, she would be
protected under
Section 41 of the T.P. Act .39 The effect of the partition in that there is a surrender of a portion of a joint
right in exchange for a similar right of a co-sharer. The single obligation of the lessee to pay rent to the lessor under
the lease is converted into several obligations to pay rent to the lessor’s individually. 40 When premises in
occupation of the tenant is divided into several shares transferred to several persons, separate shares vest in each
co-sharer separately. There is no right of the tenant to prevent the joint owners or co-lessors from partitioning the
tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be
retained jointly by all the lessor or they would partition it among themselves, is the exclusive right of the lessors to
which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the
property was jointly owned by several persons and that, even if he was being dealt with by only one of them on
behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a
third person by one of the owners or to the partition of the property. 41 It is impossible upon principle to distinguish
cases where a tenure is severed by different portions of the area being sold to different persons, from those where
it is sold to different persons in undivided shares. In all such cases the entirety of the joint interest should be
Page 4 of 5
S. 37. (A)
considered as severable at the option of the purchaser. 42
Arrangement for separate payment of rent. —Where on the consent of all the shareholder landlords a
tenant in an undivided property has agreed to pay the different shares the rent of the tenure in proportion to their
respective shares, it is not open to him to cease from paying the proportionate fraction of the rent due in
accordance with his agreement, except on the consent of the owner of that particular share. 43
Liability of tenant acquiescing in arrangement for separate payment. —Where co-sharers in an

undivided property acquiesce in a decision declaring one of their number the owner of a recognized share in such
property, it is not open to a tenant (who had previously agreed to pay his rent in accordance with the shares of the
respective partowners) to refuse payment of the proportionate share of the rent claimed by such cosharer as the
owner of the recognized share, simply on the ground that he had never before paid rent so proportioned to such co-
sharer. 44
(B) TRANSFER OF IMMOVABLE PROPERTY
Transfer by person authorised only under certain circumstances to transfer.
31 Sardarilal v. Narayanlal ,
AIR 1980 MP 8 [
LNIND 1979 MP 26 ] (11) (FB).
32 Durga Rani Devi v. Mohiuddin , 86 CLJ 198.
33 Ishwar Chunder v. Ram Krishna ,

(1880) 5 Cal 902 .
34 Sri Raja Simhadri v. Prattipati , (1906) 29 Mad 29.
35 Peary Lal v. Madhoji, (1903) 17 CLJ 372.
36 Guni Mahomed v. Moran ,

(1879) 4 Cal 96 .
37 Rajnarain v. Ekadasi ,
(1900) 27 Cal 479 .
38 Pergash Lal v. Akhowri Balgobind ,

(1892) 19 Cal 735 ; Prem Chand v. Mohshoda Debi ,
(1887) 14 Cal 201 ; Sri Raja Simhadri v. Prattipati Ramayya , (1906) 29 Mad 29.
Page 5 of 5
S. 37. (A)
39 Satya Mandarlini v. Sahadur Mondal ,

AIR 1962 Cal 40 [
40 Badri Prasad v. Shyam Lal Jaiswal ,

AIR 1963 Pat 85 (DB) (
AIR 1916 Cal 645 :
AIR 1942 Pat 120 :
AIR 1936 Bom 10 :
AIR 1923 Mad 577 [
LNIND 1923 MAD 41 ] relied on ).
41 Nirmalendu Bhattarcharya v. Smt. Monika Dey ,

2005 (1) Cal LJ 146 [
LNIND 2004 CAL 265 ] (148) (Cal).
42 Ishwar Chunder v. Ram Krishna ,

(1880) 5 Cal 902 .
43 Lootfulhuck v. Gopee Chunder ,

(1880) 5 Cal 941 .
44 Lootfulhuck v. Gopee Chunder ,

(1880) 5 Cal 941 .
End of Document
Darashaw Vakil
S. 38.
Where any person, authorised only under circumstances in their nature
variable to dispose of immovable property, transfers such property for
consideration, alleging the existence of such circumstances, they shall, as
between the transferee on the one part and the transferor and other persons
(if any) affected by the transfer on the other part, be deemed to have existed,
if the transferee, after using reasonable care to ascertain the existence of
such circumstances, has acted in good faith.
Illustration
A , a Hindu widow, whose husband has left collateral heirs, alleging that the property held
by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable, to sell a field, part of
such property, to B . B satisfies himself by reasonable enquiry that the income of the property is insufficient for A ’s
maintenance, and that the sale of the field is necessary, and, acting in good faith, buys the field from A . As between B on
the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.
End of Document
S. 38. (A)
Darashaw Vakil
COMMENTS
Scope and application. —The statutory provision contained in this section is substantially a statement
of the principles deducible from the cases on this point. But this principle obviously has no application where the
transaction is still incomplete; the essential basis of the rule is an actual transfer for consideration. 45 The section
deals with the qualified power of disposition possessed by persons whose rights of alienation vary with
circumstances which in their turn are variable. It enacts a rule of presumption as to existence of circumstances
between the transferor and transferee and other persons affected by the transfer and protects the transferee
against impeachment of such alienation if after using reasonable care to ascertain the existence of such
circumstances he has acted in good faith. The opening words of the section refer to persons having a limited power
of alienation dealt with in Section 7.
The bona fide enquiry implies that one must act with reasonable care and must act in good faith in entering into the
transaction. 46 The law is settled that if the sale is impeached the burden lies on the alienee to prove either that
there was legal necessity in fact or that he made bona fide enquiries as to the existence of the necessity. 47 It is
also the duty of the transferee to make proper enquiry, search the relevant documents and also to make enquiry
from independent sources. 48
Bona fide enquiry by alienee. —The rule as to enquiry finds statutory recognition in
Section 38 of the T.P. Act . An alienation by a Hindu father for payment of antecedent debt could be
justified if the transferee proved that the debt existed and that after an honest and proper enquiry he was satisfied
that monies were required for the discharge of the same. It is not further necessary for the alienee to prove that the
money was actually utilized for the discharge of antecedent debt.49
Other persons. —These are, besides the transferor, persons who would be interested in impeaching
the alienation, as the illustration shows. If such a person is a consenting party to the alienation he would, under
Section 115 of the Indian Evidence Act, 1872 , be estopped from disputing the validity of the alienation
and on that ground no inquiry as required by the section would be necessary.50
Rights acquired by the transferee. —A mortgage of the joint family property of a Mitakshara family by
its karta , unless necessity or antecedent debt is proved, is void; the transaction itself gives to the mortgagee no
rights against the karta’s interest in the joint family. 51 There is, however, a Calcutta case 52 discussed by the
Page 2 of 3
S. 38. (A)
Judicial Committee in Narain Prasad v. Sarnam Singh 53 where a charge was created on the shares of
the persons making the representation that they had power to alienate although there was very little evidence of
such representation, their Lordships observing that that was not the general law. Where the mortgage is for a larger
amount than the necessity warrants, it will only be upheld to the extent of the necessity proved. 54
Does an order of the Court discharge a transferee. —It is not uncommon to obtain orders from the
Court when a transfer is made by a limited owner authorizing him to do so. Such orders, however, do not discharge
transferees from their liabilities under the section.
Gifts. —The section has no application to voluntary transfers, as consideration is an essential element.
Transferor’s liabilities. —See further as to seller’s liabilities, Section 55 (1), subclause (a) and Section
55 (2), and as to a mortgagor’s liabilities, Section 65 (a) of this Act.
Transfer where third person is entitled to maintenance.
45 Jamsetji v. Kashinath , (1902) 26 Bom 326.
46 Jogendra Nath v. Official Receiver ,

AIR 1975 Cal 389 [
LNIND 1974 CAL 295 ] (400).
47 P.P. Elliah v. P. Gangamma ,

AIR 1957 AP 776 (776) : (1957) 1 Andh WR 258 :
1957 Andh LT 336 .
48 Jogendra Nath v. Official Receiver ,

AIR 1975 Cal 389 [
LNIND 1974 CAL 295 ] (400).
49 Meenakshi Achi v. N.M. Manikkam Chettiar ,

AIR 1960 Mad 99 [
LNIND 1959 MAD 77 ] (DB) :
(1960) 1 MLJ 89 [
50 Sarat Chandra Dey v. Gopal Chunder Laha ,

(1893) 20 Cal 296 : 19 IA 203.
Page 3 of 3
S. 38. (A)
51 Anant Ram v. The Collector of Etah ,

(1918) 40 All 171 : 20 Bom LR 524; Narain Prasad v. Sarnam Singh ,
(1917) 39 All 500 : 44 IA 163; Madho Parshad v. Mehrban Singh ,
(1890) 18 Cal 157 : 17 IA 194; Ram Sahai v. Parbhu Dayal ,
(1921) 43 All 655 .
52 Mahabir Persad v. Ramyad Singh , (1873) 12 Beng LR 90.
53
(1917) 39 All 500 : 44 IA 163.
54 Anant Ram v. The Collector of Etah ,

(1918) 40 All 171 : 20 Bom LR 524.
End of Document
Darashaw Vakil
S. 39.
Where a third person has a right to receive maintenance, or a provision for
advancement or marriage, from the profits of immovable property, and such
property is transferred, 55 [* * *] the right may be enforced against the
transferee, if he has notice 56 [thereof] or if the transfer is gratuitous; but not
against a transferee for consideration and without notice of the right, nor
against such property in his hands. 57 [* * *]
55 The words "with the intention of defeating such right" omitted by Act 20 of 1929, S. 11.
56 Subs. by Act 20 of 1929, Section 11, for "of such intention".
57 The illustration omitted by Act 20 of 1929, Section 11.
End of Document
S. 39. (A)
Darashaw Vakil
COMMENTS
Scope and application. —The section is enacted to protect, on a transfer of immoveable property, the
right of a third person (other than the transferor and transferee) entitled to receive out of the profits of such
property—
(1) Maintenance, or
(2) Advancement, or
(3) Marriage expenses.
The transferee with notice of the right takes subject to these liabilites and so does a gratuitous transferee.
But neither a transferee for value without notice nor such property in his hands is liable.
The right may be created by act of parties or by law. Only three items are protected, namely, maintenance,
advancement and marriage expenses. The view which was taken earlier in Pavayammal v. Samiappa Gounder , 58
was that taken under the old section, namely that the transferee was not bound, unless he had notice of the
intention to defeat the right of the widow. The old Section 39, which itself was based upon the principles of an
earlier case 59 was enacted to protect innocent purchases for value and required before a transferee could be made
liable (1) That the transferee must have intended to defeat the right of the third person and (2) the transferee should
have notice of such intention and not merely the existence of such right. But this section was amended as it failed to
give sufficient maintenance etc. against fraudulent transfers in as much as it was extremely difficult to prove in most
cases that the transferee had knowledge of the fraudulent intention of the transferor. In order to relieve against this
hardship Courts had to resort to presumptions of fact. Therefore, the section was amended as it now stands on the
report of the
Transfer of Property Act (Amendment) Bill, 1929. So, now under the new section notice of existence of
the right is sufficient to bind the transferee.60
The plea of plaintiff that she has also contributed towards the sale consideration was contrary to the provisions of
Benami Transaction (Prohibition) Act, 1988, held, plaintiff had no right, title or interest to file the suit challenging the
sale deed executed by the defendant. 61
Page 2 of 15
S. 39. (A)
Section 39 is based on the principle of justice, equity and good conscience. It would be highly unjust to permit a
party to transfer its land which is likely to be required for execution of a decree for maintenance. Such a course
would result into extreme injustice to the decree holder.
Section 52 of the T.P. Act incorporates the doctrine of lis pendens which is based on common law
principle that any transfer made during pendency of the proceeding before the Court would be subject to the result
of the judgment and decree eventually passed. 62
The effect of Section 39 is that if an alienation is made of the husband’s property with notice of the right of the wife
to maintenance, the alienation will not effect her right in any way, she can proceed against the alienated property
and the Court can create charge over the alienated properties. 63 Section 39 is in pari materia with Section 28 of the
Hindu Adoption and Maintenance Act, 1956. 64 Where any transfer is affected, the right to claim maintenance can
be enforced against such transferee unless he has no notice of such right. Right to maintenance exists the moment
a woman gets married to husband and continues to remain. Merely because, no claim is made in any format or no
suit is filed, nor any decree is obtained, would not either affect such right, nor can it be said that the claim only
comes into being on the date of filing of such suit. Any claim for maintenance in a Court of law is only in pursuance
of an existing right as contemplated under the law. 65
In the present case, there was absolutely no averment of the plaintiffs that any maintenance was being claimed by
them from defendant No. 4 or that suit property was a charge for that maintenance claim. There was absolutely no
averment on the part of the plaintiffs that they had any right to receive maintenance from defendant No. 4 or that the
provision for advancement of marriage from the profits of such property had been made at any point of time.
Moreover, transfer is question i.e. sale deed was not gratuitous; rather it was for valuable consideration. Not only
this, there was neither averment of plaintiffs nor evidence that defendant No. 1 i.e. transferee had any notice of the
alleged rights of the plaintiffs so as to claim any sort of maintenance from defendant No. 4 out of the property in
dispute.
Section 39 of the T.P. Act was held not attracted in the case.66
Section 39 relates to a case where no charge has been created but a person has a right to receive maintenance
from the profits of the immovable property. 67 Section 39 does not apply to a case where a charge has been created
and the decree provides that in the event of the non- payment, the amount can be realised by enforcing the charge.
68 In the absence of an agreement or a decree the wife’s right to receive maintenance does not create any charge
on the property. 69
Neither text of Hindu Law nor Section 39 creates any right or interest in the property on the ground of maintenance.
70
Where a property subject to charge of right of maintenance is mortgaged/sold and the mortgagee/purchaser had
notice of the charge, the right of maintenance is enforceable against the mortgagee/purchaser even, if the deed
provides that the property is free from all liabilities. 71 The right of maintenance of a widow has precedence over
other family debts. 72
The question about the notice of charge for maintenance under

Section 39 of the T.P. Act , if not raised before the trial Court, cannot be raised in appeal.73 Where a
person has purchased lottery ticket in the name of his minor child, there is absolutely no reason to think that he
intended to purchase the ticket exclusively for the benefit of his minor child. 74
Page 3 of 15
S. 39. (A)
Where the wife had right to receive maintenance the husband transferred properties in favour of his sisters prior to
claim for maintenance, held the sisters being transferees members of the family, it would be presumed that they
were aware of the right of maintenance, the property could be proceeded against for charges for maintenance. 75
Where evidence is lacking to show that the defendant had knowledge of the plaintiff’s claim for maintenance,
Section 39 would not apply. 76
The old and the amended sections. —The decisive factor, under the new section, is
the transferee’s knowledge of the right of the third person, while under the old section it was his knowledge of
intention on the part of the transferor to defeat the right of such third person. As the section originally stood, proof of
intention on the part of the transferor and notice of intention of the transferee were necessary. 77
In actual practice it was difficult to adduce proof of intention. 78 As it was thought desirable to protect persons,
entitled to benefit of items mentioned in the section from improvident holders of property, the reference to the
transferor’s intention has been omitted and the section amended accordingly. The words "with the intention of
defeating such right" have been omitted and for the words "of such intention" the word "thereof" has been
substituted. The illustration to the old section was not explanatory of the section and, therefore, omitted.
Under the old section, if the intention of the transferor was in defeasance of the right of the third person entitled to
the profits of the immoveable property for maintenance, advancement or marriage, the transferee was liable, on
proof of such intention, to the enforcement of such right of the third person. The amendment has dispensed with the
proof of intention; consequently the intention of the transferor is immaterial and if the transferee could be fastened
with notice of the third person’s right he would be liable. To a gratuitous transferee the amendment has made no
difference. His liability remains unchanged. 79
Before the amendment of Section 39 by

Amending Act 20 of 1929, it was necessary for the plaintiff to prove that the transfer was with the
intention of defeating such a right. This has been taken away under the amendment. Now it is not necessary for the
plaintiff to prove that the transfer was with the intention to defeat his right.80 Soon after the amendment of Section
39, the matter came up for consideration before the Privy Council in Dan Kuer v. Sarla Devi. 81 Their
Lordships of the Privy Council observed : —
"Where property was alienated before the amendment of Section 39 of 1929, but the suit by the claimant to maintenance to
enforce his right of maintenance against the transferee is brought after the amendment Section 39 as amended will apply
and therefore the claimant need not prove the intention on the part of the transferor to defeat the right of maintenance but
only that the purchaser had notice of that right."
Gratuitous transfer. —The right to maintenance is not defeated by a gratuitous transfer by the person
liable to pay maintenance. 82
Page 4 of 15
S. 39. (A)
The Special Committee observed : —
"Clause 10, Section 39. — Section 39 is intended to protect persons who are entitled to receive
maintenance or for whom provision is made for advancement or marriage from the profits of any immovable property. The
section provides that such a right can be enforced against a transferee of the property, if the transfer has been made with
the intention of defeating the right and transferee has notice of the intenion. The Courts have, therefore, always required
proof of the intention of the part of the transferor and also of notice of the intention to the transferee. 83 The illustration to
the section is not consistent with the section itself and does not make any refeence to the intention of the transferor. In
actual practice it is impossible to adduce proof of mere intention. As stated in 12 Bom LR 1075 at pp. 1077 and 1078, in
order to enable such proof to be adduced, a transferor must have announced his fraudulent intention of defeating the rights
of persons entitled to maintenance and the transferee must have heard him doing so. As it is desirable to protect persons
entitled to maintenance or for whom provisions for advancement has been made from improvident holders of the property,
the reference to the transferor’s intention should be omitted from the section, and the section should be amended
accordingly." 84
"Maintenance". —Maintenance to operate as a bar to transfer of immoveable property must not amount
to a personal obligation but must be payable out of the profits of such property. The principal application of this rule
is in the case of Hindu females, chief among them being the widow. Her maintenance is not a charge upon the
property, 85 unless created by deed 86 or made such by a decree of a competent Court. 87 Where the right to
maintenance is personal and not against property, Section 39 is inapplicable. 88 A Hindu widow is on the death of
her husband entitled to maintenance out of the property of her husband if self-acquired 89 or out of the joint family
property if the husband at the time of his death was joint. 90 An unchaste widow’s rights, while leading an immoral
life, are suspended and she forfeits her right of maintenance, 91 but can claim a starving maintenance if she reverts
to a life of chastity. 92 On remarriage the claim to maintenance is lost 93 but not on excommunication. 94 Arrears of
maintenance within the statutory period 95 would be within the scope of the section. The mother of a coparcener is
entitled to have a provision made for her maintenance out of the entire family property. 96 Although a Hindu
governed by the Bengal school is under only a moral liability to maintain the widow of his deceased son, the liability,
when transmitted on his death to his surviving sons, becomes a legal liability, the measure of which, however, is
restricted to the amount of the estate to which they have succeeded from their father. The widow has the above
right to maintenance although her husband, when sui juris , has been party to a deed invalidly adopting him out of
his natural father’s family; nor does she forfeit the right by ceasing to reside with her husband’s family, otherwise
than for unchaste or improper purposes. A vendee on the receipt of notice of maintenance sent by the vendor’s wife
can repudiate the agreement for sale and can file suit for refund of earnest money given under agreement for sale.
97
Where a third person has right to receive maintenance from the profits of immovable property and if such property
is transferred, he is entitled to enforce his right against the transferee subject to the other conditions mentioned in
the section. The wife and the children, who are plaintiffs, are entitled to be included in the category. 1 Where a
husband transfers property to a third person, his wife and children who fall within the ambit of third person do not
have claim for maintenance from the profits of the property held by the husband. 2
The right to receive maintenance can be enforced irrespective of the fact whether the property devolves on the
heirs on succession, intestate or testamentary or on transfer inter vivos gratuitously or for consideration except
where the property is purchased without notice of the right. 3
Page 5 of 15
S. 39. (A)
In the instant case, the Courts below concurrently recorded that the husband had failed to maintain his wife. On
receipt of notice from the wife claiming maintenance, the husband transferred a portion of his property. Held, the
wife was entitled to charge over her husband’s property. Maintenance of Rs.1500/-p.m. was granted. 4
Where the wife living separately from her husband filed suit for maintenance against the latter, the defendant
husband’s brother obtained a collusive decree in respect of the suit property to defeat the plaintiff’s right to
maintenance, sale of property by him was found to be gratuitous, the plaintiff’s right to have right charge on the suit
property was upheld. It would be highly unconscious and unjust to permit a husband to alienate his property with an
oblique motive to defeat the legal right of maintenance of his wife. 5
The Judicial Committee will not interfere with the amount decreed by the High Court for maintenance unless the
Court has proceeded upon inadmissible evidence or upon an erroneous principle. 6 When the alienation was the
result of debts contracted for a family necessity 7 it will take precedence over the widow’s claim to maintenance.
Also where the debt was contracted for joint family trading and the purchaser bought the property from the Official
Assignee. 8 But a charge bona fide created for maintenance takes precedence over the right of a subsequent
purchaser of the same properties in execution of a money decree binding on the family. 9 The dicta to the contrary
of the Allahabad High Court 10 are not supported by any text of Hindu Law.
Section 39 of the Transfer of Property Act does not protect a transferee for consideration, when the
immoveable property transferred has already been declared by decree of Court subject to a charge in favour of a
Hindu widow for her maintenance. The fact that the maintenance claimed accrued due subsequent to the transfer,
does not affect the liability of the property transferred to be sold in execution of a decree for the maintenance so
claimed.11
Section 39 of the Transfer of Property Act does not apply to a case where a charge has been created
and the decree provides that in the event of non-payment the amount can be realized by enforcing the charge.12
Liability of transferee—Where the Act does not apply. —Even before the passing of the Act it was
held that a widow could follow the property for her maintenance into the hands of one who takes it as a volunteer
with or without notice of her having set up her claim for maintenance but not when the property passes into the
hands of a bona fide purchaser without notice. 13
"Advancement". —A creature of English Law, its applicability is confined to those to whom the English
Law applies. In India as in England, owing to the practice which prevails among Mahomedans and Hindus to make
grants and transfers benami , there is no presumption of an intended advancement in favour of a wife 14 or child 15
or mistress. 16 "The criterion in these cases is to consider from what source the money comes from which the
purchase-money is paid". 17 In case of parties born in India of English parents with permanent residence in India,
there is a rebuttable presumption of an intended advancement. The evidence necessary to rebut such a
presumption must be adduced by the party contending against the advancement. It is not sufficient to state that he
did not intend to confer any beneficial interest on the party claiming as an advancement but he must establish, with
reasonable clearness, that he had other and different motives for the action he took and this, whether the person in
whose name the property stands, be the wife 18 or child. 19 Declarations by the parent, if contemporaneous with the
purchase, are admissible to prove such an intention, but declarations subsequent are to be rejected. 20
Marriage expense. —According to Hindu Law, a debt contracted for the marriage of a coparcener in a
joint Hindu family is binding on the other coparceners as a debt contracted for a family purpose and, therefore, for
the benefit of the family. 21 In order to deprive a gratuitous transferee or a transferee with notice of the defence
Page 6 of 15
S. 39. (A)
under the section, the right to receive marriage expenses out of profits must be one to which the claimant is entitled
by virtue of special provisions of the law. A mere personal obligation will not suffice. Marriage being obligatory
amongst the Hindus, expenses incurred, whether for the marriages of males 22 or females, 23 are binding on the
family properties. The ceremonies of Griha Pravesanam and Ruthusanti are essentially connected with the disposal
in marriage of a girl of the Brahmin caste and form a part of the marriage ceremonies. 24 Alienation for the first
marriage is justified. Every second marriage is not a legal necessity. 25
Notice. —Notice under the section, if constructive, will bind the purchaser. A gratuitous transferee is
bound independently of the question of notice. A purchaser with notice is not bound, as has already been seen, if
the alienation be for a family necessity or the debts bind the joint family. A transferee for consideration and without
notice of the right is protected. In order to succeed in such a defence he must prove both payment and want of
notice. The onus is on him. 26 If a person has right to receive maintenance from the profits of immovable property
and such property is transferred, the right can be enforced against the transferee if he has notice thereof. 27 The
onus to prove that the defendant transferee had notice of the plaintiff’s right to receive maintenance shall remain in
the plaintiff. 28
The expression ‘notice’ used under

Section 39 of the Transfer of Property Act has to be read along with the definition clause as contained in
Section 3 thereof, which could only lead to a conclusion that where a person is fully aware of the existing rights of
the parties and more so where such transferee is a member of the family, it cannot be said that he is not aware of
the rights of the other members or persons forming part.29
The second defendant vendee friend of the first defendant vendor was held to have constructive knowledge of the
charge for maintenance of the plaintiff wife of the first defendant over the sold property. 30
Where the husband on acquiring knowledge that his wife intended to file suit for maintenance against him, transfers
property, the transfer is not bona fide without notice and the charge can be made on the property for maintenance
without voiding the sale deed transferring the property. 31
Against such property in his hands. —A purchaser without notice being protected, property in his
hands is entitled to the same protection. Consequently a purchaser with notice from a purchaser without notice can
take advantage of the want of notice of his intermediate purchaser or purchasers.
Residence. —This right is not treated by the Act but it is submitted that it is analogous to the right of
maintenance under this section. Where the sale of ancestral property is necessary in the interest of the family as a
whole, then a bona fide purchaser for value would acquire a right paramount to that of the widow’s either to
maintenance or residence. 32
The right to maintenance in Section 39 includes right of residence also. Where by a settlement deed the husband
had given right to maintenance to the wife in the house and the house is transferred by the husband to someone
else, the plaintiff wife having right of residence in the house given in her life time can successfully resist the suit for
possession by the vendee under
Section 39 of the T.P. Act .33 Two brothers were owners of the building, one brother transferred his
undivided interest in favour of other brother. The wife of such other brother was living in a portion of the building. By
subsequent matrimonial dispute the wife did not forfeit her right to reside in the building. It was held that the position
of the wife remains as was before and her right of maintenance including residence remains as before so long as
Page 7 of 15
S. 39. (A)
the same was not terminated in a matrimonial proceeding by a competent Court, she was not a licensee or
trespasser. The wife can enforce right of maintenance including residence even against the transferee in view of the
provisions Section 39 of the Act. 34
Right to receive maintenance—If includes rights to enhanced maintenance. —A right to receive

maintenance within the meaning of Section 39 will include not only the right to receive maintenance either by
agreement or by way of decree but also the right to claim enhanced maintenance from time to time. 35
Mohamedan Law. —
Section 39 of the T.P. Act , has no application where the Courts have to administer the rules of
Mohamedan Law. However, rules of Mohamedan Law do not differ far from but more or less accord with the
principle on which
Section 39 of T.P. Act has been enacted.36
This section and

Hindu Adoptions and Maintenance Act, 1956 . —Whenever a
person has right to receive maintenance from a person who is legally bound to maintain him and that person has
immovable property, the general law in
Section 39, T.P. Act would apply. Nothing in
Hindu Adoptions and Maintenance Act, 1956 excludes the applicability of
Section 39 T.P. Act to such cases, the Court cannot refuse to create charge for the maintenance on the
immovable property.37
Section 28 of the Hindu Adoptions and Maintenance Act, 1956 has not overridden the provisions of
Burden of obligation imposing restriction on use of land.
S. 40. Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any
interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment 39 [in a particular
manner of the latter property], or
Or of obligation annexed to ownership, but not amounting to interest or easement.
Where a third person is entitled to the benefit of an obligation arising out of contract and
annexed to the ownership of immovable property, but not amounting to an interest therein or easement
thereon,
such right or obligation may be enforced against a transferee with notice thereof or a gratuitous
Page 8 of 15
S. 39. (A)
transferee of the property affected thereby, but not against a transferee for consideration and without
notice of the right or obligation, not against such property in his hands.
Illustration
A contracts to sell Sultanpur to B . While the contract is still in force he sells Sultanpur to C , who has
notice of the contract. B may enforce the contract against C to the same extent as against A .
58
AIR 1947 Mad 376 [
(1947) 1 MLJ 329 [
59 Ram Chandra Joshi v. Satyabhama Bai , ILR 2 Bom 494.
60 Vellayammal v. Srikumara Pillai ,

AIR 1960 Mad 42 [
LNIND 1959 MAD 38 ]: 72 Mad LW 364.
61 Jagmanti v. Ram Kumar,

2009(76) AIC 938 (941, 942) (P&H) :
2009 (1) Punj LR 316 .
62 Sarwan Singh v. Jagir Kaur , AIR 2006 P&H 171 (174) : 2006 (43) All Ind Cases 906 :
2006 (2) Punj LR 304 .
63 Ramaswamy v. Baghyammal ,
AIR 1967 Mad 457 [
LNIND 1965 MAD 124 ] (459) :
ILR (1966) 2 Mad 164 : (1966) 2 Mad LJ 579, see also Maya Devi v. Rupa Devi ,
1982 All LJ 616 (All).
64 Sadhu Singh v. Gurdwara Sahib Nrika , AIR 2006

SC 3282 (3285) :
(2006) 8 SCC 75 [
LNIND 2006 SC 702 ].
AIR 2004 AP 317 [
LNIND 2004 AP 248 ] (319) :
(2004) 4 Andh LT 169 ; Jagmanti v. Ram Kumar,
2009(76) AIC 938 (941, 942) (P&H) :
2009 (1) Punj LR 316 .
66 Jagmanti v. Ram Kumar, (2009-I) 153 Punj LR 316 (319, 320) (P&H).
Page 9 of 15
S. 39. (A)
67 Mahesh Prasad v. Mundar ,

AIR 1951 All 141 [
LNIND 1950 ALL 153 ] (145) (FB) :
1951 ALJ 39 .
68 Mahesh Prasad v. Mundar ,

AIR 1951 All 141 [
LNIND 1950 ALL 153 ] (146) (FB) :
ILR 1951 (1) All 274 .
69 Jogi v. Rajkumar Saheba ,

AIR 1956 Nag 138 : ILR 1956 Nag 181.
70 Veerabhadra Rio v. Lakshmi Devi ,

AIR 1965 AP 367 [
LNIND 1964 AP 200 ] (371).
71 Dan Kuer v. Sarla Devi , AIR

1947 PC 8 (13) : 73 IA 208 : 227 IC 83.

1947 PC 8 (13) : 73 IA 208 : 227 IC 83.
73 Shyam Narain v. Khubal Mahto ,

AIR 1968 Pat 238 (244) (DB).
74 Benoy Bhusan v. Bina ,

AIR 1954 Cal 490 [
LNIND 1953 CAL 171 ] (491) (DB) : 58 CWN 435 (The father’s suit for recovery of
money of lottery ticket was decreed).
AIR 2004 AP 317 [
LNIND 2004 AP 248 ] (320) :
(2004) 4 Andh LT 169 .
76 Gangubai Bhagwan Kolhe v. Bhagwan Bandhu , Kolhe

2007 (3) Bom CR 287 [
LNIND 2006 BOM 1335 ] (292, 293) (Bom); Jagmanti v. Ram Kumar,
2009(76) AIC 938 (941, 942) (P&H) :
2009 (1) Punj LR 316 .
77 Ram Kunwar v. Ram Dai ,

(1900) 22 All 326 ; Bharatpur State v. Gopal ,
(1902) 24 All 160 ; Vellayammal v. Srikumara Pillai ,
AIR 1960 Mad 42 [
78 Yamnabai v. Nanabhai Sadanand ,

(1910) 12 Bom LR 1075 .
Page 10 of 15
S. 39. (A)
79 Ramamurti v. Kanakaratnam ,
AIR 1948 Mad 208 [

1947 PC 8 : 73 IA 208 : 227 IC 83; Ramankutty Purushothaman v. Amminikutty ,
AIR 1997 Ker 306 [
LNIND 1997 KER 49 ] (308); Vellayammal v. Srikumara Pillai ,
AIR 1960 Mad 42 [
LNIND 1959 MAD 38 ]: 72 Mad LW 364.
81 AIR
1947 PC 8 : 73 IA 208 : 227 IC 83 :
1946 2 MLJ 420 .
82 Ramappa Parappa Khot v. Gourwwa ,

AIR 1968 Mys 270 ; Laxmi v. Krishna Bhatta , AR 1968 Mys 288 ; Sarwan Singh v.
Jagir Kaur , AIR 2006 P&H 171 (174) : 2006 (43) All Ind Cases 906 :
2006 (2) Punj LR 304 .
83 ILR 22 All 226 : 24 All 160.
84 Vide REPORT OF THE SELECT COMMITTEE, FIRST REPORT ON THE TRANSFER

OF PROPERTY (AMENDMENT) BILL, 1929.
85 Lakshman v. Satyabhamabai , (1877) 2 Bom 494 ; Behari Lalji v. Bai Rajbai , (1899) 23
Bom 342 ; Bharatpur State v. Gopal ,
(1901) 24 All 160 ; Ram Kunwar v. Ram Dai ,
(1900) 22 All 326 ; Ramanajdan v. Rangammal , (1889) 12 Mad 260 ; Jayanti v.
Alamelu , (1904) 27 Mad 45 ; Soora Koer v. Nath Baksh ,
(1884) 11 Cal 102 ; Sowbagia v. Manicka,
(1917) 33 MLJ 601 [
LNIND 1917 MAD 205 ] ; Bhagat Ram v. Mst. Sahib , (1922) 3 Lah 55 ; Digambari
Debi v. Dhan Kumari Bibi ,
(1906) 10 CWN 1074 ; Sheodani Kuer v. Umashanker Prasad Sahi ,
AIR 1963 Pat 74 : 1962 BLJR 677.
86 Bharatpur State v. Gopal ,

(1901) 24 All 160 ; Yamnabai v. Nanabhai Sadanand ,
(1910) 12 Bom LR 1075 ; Sham Lal v. Banna ,
(1882) 4 All 296 .
87 Lakshman v. Satyabhamabai , (1877) 2 Bom 494 ; Bharatpur State v. Gopal ,

(1901) 24 All 160 ; Yamnabai v. Nanabai Sadanand ,
(1910) 12 Bom LR 1075 ; Sham Lal v. Banna ,
(1882) 4 All 296 .
88 Sheodani kuer v. Umashanker Prasad Sahi ,

AIR 1963 Pat 74 : 1962 BLJR 677.
Page 11 of 15
S. 39. (A)
89 Narbadabai v. Mahadeo , (1881) 5 Bom 99 ; Srimati Bhagabati v. Kanailal , (1872) 8

Beng LR 225; Brinda v. Radhica ,
(1885) 11 Cal 492 (494).
90 Adhibai v. Cursandas , (1887) 11 Bom 199 ; Devi Persad v. Gunwanti ,

(1895) 22 Cal 410 ; Jayanti v. Alamelu , (1904) 27 Mad 45 ; Becha v. Mothina ,
(1901) 23 All 86 .
91 Vishnu v. Manjamma , (1885) 9 Bom 108 ; Romanath v. Rajonimoni ,

(1890) 17 Cal 674 ; Valu v. Ganga , (1882) 7 Bom 84.
92 Bhikubai v. Hariba , (1925) 49 Bom 459 ; Satyabhama v. Kesavacharya , (1916) 39 Mad

658.
93 Section 2, Hindu Widow Remarriage Act, XV of 1856; Vittu v. Govind , (1898) 22 Bom 321 ; Rasul v. Ram
Suran ,
(1895) 22 Cal 589 ; Suraj v. Attar , (1922) 1 Pat 706 ; Santala v. Badaswari ,
(1923) 50 Cal 727 .
94 The
Caste Disabilities Removal Act , XXI of 1850.
95 Art. 128,
Schedule 1, Limitation Act , IX of 1908.
96 Srinivasa v. Thiruvengadathaiyangar , (1915) 38 Mad 556.
97 M. Ramachadraiah v. D. Venkatareddy ,
AIR 2006 NOC 494 (AP).
1 Vijayan v. Sobhana ,
AIR 2007 Ker 177 [
LNIND 2007 KER 119 ] (178):
(2007) 1 KLJ 812 (DB).
2 Vijayan v. Sobhana ,
AIR 2007 Ker 177 [
LNIND 2007 KER 119 ] (178):
(2007) 1 KLJ 812 (DB).
3 Tadikonda Seetha Mahalasmamma v. Mandadapu Daiva Prasad ,

AIR 1984 NOC 265 : (1983) I APLJ (HC) 354); Banda Manikyam v. Banda
Venkayamma ,
AIR 1957 AP 710 [
LNIND 1956 AP 138 ]: 1956 Andh WR 1021 ; Chandramma v. Maniam Venkatreddi
,
AIR 1958 AP 396 [
LNIND 1957 AP 60 ]:
1958 Andh LT 256 [
LNIND 1957 AP 60 ] : 1958 1 Andh LW 46. (Property either acquired or ancestral).
Page 12 of 15
S. 39. (A)
4 A.K. Vijayakumar v. Manimekalai, 2012 AIR CC 671 (676) (Mad).
5 Sarwan Singh v. Jagir Kaur , AIR 2006 P&H 171 (174) : 2006 (43) All Ind Cases 906 :
2006 (2) Punj LR 304 .
6 Rajanikanta Pal v. Sajanisundaree Dasee ,

(1934) 51 Cal 221 (P.C.); Ekradeshwari Bahuasin v. Homeshwar Singh , (1929) 8
Pat 840 : 56 IA 182 followed.
7 Lakshman v. Satyabhamabai , (1877) 2 Bom 494 ; Yamnabai v. Nanabhai Sadanand ,

(1910) 12 Bom LR 1075 ; Soorja Koer v. Nath Buksh ,
(1885) 11 Cal 102 ; Adhiranee Narain v. Shona Malee ,
(1876) 1 Cal 365 ; Jamnabai v. Balakrishna ,
AIR 1927 Mad 1092 [
8 Johurra Bibee v. Sree Gopal ,

(1876) 1 Cal 470 .
9 Somasundaram v. Unnamalai , (1920) 43 Mad 800.
10 Sham Lal v. Banna ,

(1882) 4 All 296 ; Gur Dayal v. Kaunsila ,
(1883) 5 All 367 .
11 Kuloda Prosad Chatterjee v. Jageshar Koer ,

(1900) 27 Cal 194 .
12 Kandasamy v. Selvambal , 2006 (2) Mad LJ 753 (761) (Mad).
13 Srimati Bhagabati v. Kanailal , (1872) 8 Beng LR 225; Jagmanti v. Ram Kumar,

2009(76) AIC 938 (941, 942) (P&H) :
2009 (1) Punj LR 316 .
14 Guran Ditta v. Ram Ditta ,

(1928) 55 Cal 944 : 55 IA 235; Lakshmiah v. Kothandarama , (1925) 48 Mad 605 :
52 IA 286; Mollayya v. Krishnaswami ,
AIR 1925 Mad 95 [
LNIND 1924 MAD 58 ]; Motivahu v. Purshotam Dayal , (1905) 29 Bom 306.
15 Jhonstone v. Gopal Singh ,

AIR 1931 Lah 419 ; The Dharwar Bank Ltd. v. Mahomed Hayat ,
(1931) 33 Bom LR 250 ; Mollayya v. Krishnaswami ,
AIR 1925 Mad 95 [
LNIND 1924 MAD 58 ]; Gopee Krist v. Gungapersaud , (1854) 6 MIA 53 ; Ushur Ali
v. Bebee Ultaf Fatima , (1869) 13 MIA 232.
16 Bilas Kunwar v. Deshraj Ranjit Singh ,

(1915) 37 All 557 : 42 IA 202.
Page 13 of 15
S. 39. (A)
17 Dhurm Das v. Shama Soondri , (1843) 3 MIA 229 ; Jeewan Khatoon v. Mehtab Khatoon ,
AIR 1953 Hyd 77 : ILR (1953) Hyd 165 (DB) (In India no presumption of intended
advancement).
18 Kerwick v. Kerwick ,
(1921) 48 Cal 260 : 47 IA 275; Paul v. Nathaniel Gopal ,
AIR 1931 All 596 contra (it does not appear whether the parties
were Europeans).
19 Paschand v. Paschand ,
AIR 1930 Oudh 441 .
20 Paschand v. Paschand ,
AIR 1930 Oudh 441 ; Gopee Krist v. Gungapersaud , (1854) 6 MIA 53.
21 Sunchabai v. Shivanarayana , (1908) 32 Bom 81 ; Gopala Krishna v. Venkatanarasa ,

(1914) 37 Mad 273 ; Govindarazulu v. Devarabhotla , (1904) 27 Mad 206 overruled ; Kameswara v. Veeracharlu ,
(1911) 34 Mad 422 ; Debi Lal v. Nand Kishore ,
AIR 1922 Pat 22 .
22 Srinivasa Iyengar v. Thiruvengadathaiyangar , (1915) 38 Mad 556 ; Gopalakrishnan v.

Venkatanarasa , (1914) 37 Mad 273 ; Govindarazulu v. Devarabhotla , (1904) 27 Mad 206 overruled ; Sundrabai v.
Shivanarayana , (1908) 32 Bom 81 ; Kameswara v. Veeracharlu , (1911) 34 Mad 422 ; Bhagirathi v. Jokhu Ram ,
(1910) 32 All 575 ; Debi Lal v. Nand Kishore ,
AIR 1922 Pat 22 .
23 Ranganaiki v. Ramanuja , (1912) 35 Mad 728 ; Srinivasa Iyengar v.

Thiruvengadathaiyangar , (1915) 38 Mad 556.
24 Vaikuntam v. Kallipiram , (1903) 26 Mad 497.
25 Bhagirathi v. Jokhu Ram ,

(1910) 32 All 575 .
26 Bhup Narain Singh v. Gokhul Chand , (1930) 13 Pat 242 : 61 IA 115; Pavayammal v.
Samiappa Goundan,
AIR 1947 Mad 376 [
1947 1 MLJ 329 [
LNIND 1947 MAD 84 ] :
1947 MWN 313 (1). ((i) Claim based on right to receive maintenance (ii) Notice
Both necessary to create charge on the property in the hands of the vendee); Jagmanti v. Ram Kumar,
2009(76) AIC 938 (941, 942) (P&H) :
2009 (1) Punj LR 316 .
27 Ramankutty Purushothaman v. Amminikutty ,

AIR 1997 Ker 306 [
LNIND 1997 KER 49 ] (308):
(1997) 1 KLJ 275 , Diwakaran v. Chellamma,
1985 Ker LT 1001 ; Raghavan v. Nagammal ,
AIR 1979 Mad 200 [
LNIND 1978 MAD 141 ]:
1979- 92-LW 10 ; Sheodani Kuer v. Uma Shanker Prasad Sahi ,
Page 14 of 15
S. 39. (A)
AIR 1963 Pat 74 : 1962 BLJR 677 ; Jagmanti v. Ram Kumar, (2009-I) 153 Punj LR
316 (P&H).
28 Mt. Sheodevi Kuer v. Umashanker Sahi ,

AIR 1963 Pat 74 (DB) :
1962 BLJR 677 .
AIR 2004 AP 317 [
LNIND 2004 AP 248 ] (319, 320) :
(2004) 4 Andh LT 169 .
30 Balasubramaniam v. Vijaya ,
2005 (4) Mad LW 293 (296, 297) (Mad).
31 Siddegowda v. Lakkamma ,
AIR 1981 Kant 24 [
LNIND 1980 KANT 181 ] (25); (1983) 2 An.WR 211. (Charge for maintenance); Kare
More Sharabanna Rudrappa v. Basamma ,
AIR 1962 Mys 207 .
32 Yamnabai v. Nanabhai Sadanand ,

(1910) 12 Bom LR 1075 ; Ramanadan v. Rangammal , (1889) 12 Mad 260.
33 Adiveppa v. Tangewwa ,
AIR 1975 Kant 198 [
LNIND 1974 KANT 38 ] (199, 200) :
(1974) 2 KLJ 45 :
ILR (1974) Kant 623 .
34 Basudeb Sarkar v. Smt. Chhaya Dey , Sarkar

AIR 1991 Cal 399 [
LNIND 1991 CAL 25 ] (401, 402) (V. Tulasamma v. Sesha Reddy , AIR
1977 SC 1944 :
(1977) 3 SCC 99 [
LNIND 1977 SC 136 ] ;
AIR 1958 AP 396 [
LNIND 1957 AP 60 ]:
AIR 1957 AP 710 [
LNIND 1956 AP 138 ], followed ).
35 Kaveri v. Parameswari ,
AIR 1971 Ker 216 [
LNIND 1970 KER 103 ] (221) :
1970 Ker LJ 966 :
1971 KLT 299 ; Vedavathi Williams v. Rama Bai ,
AIR 1964 Mys. 265 ; Padmanabha Pillai v. P. Abraham ,
AIR 1971 Ker 154 (158) :
1971 Ker LJ 162 .
36 Ibrahim Fathima v. Mohamed Saleem ,

AIR 1980 Mad 82 [
LNIND 1978 MAD 179 ] (86) : 92 Mad LW 390 :
(1979) 2 MLJ 199 [
LNIND 1978 MAD 179 ].
Page 15 of 15
S. 39. (A)
37 A.B.S. Krishna Kumari v. A. Veralakshmi ,

AIR 1976 AP 365 [
LNIND 1975 AP 225 ] (368, 369, 370):
(1976) 1 APLJ 253 .
38 Ramaswamy v. Baghyammal ,
AIR 1967 Mad 457 [
LNIND 1965 MAD 124 ] (458, 459)
ILR 1966 (2) Mad 164 ; Ramappa Parappa v. Gourwwa ,
AIR 1962 Mys 270 : (1962) 1 Mys LJ 277.
39 Subs. by Act 20 of 1929, Section 12, for "of the latter property or to compel its enjoyment in a particular
manner".
End of Document
S.39 (AA)
Darashaw Vakil
COMMENTS
Legislative Changes. —The words "in a particular manner of the latter property" at the end of para 1
have been substituted for the words "of the latter property or to compel its enjoyment in a particular manner" by
Section 12 of the Transfer of Property (Amendment) Act, 1929 (20 of 1929). The reasons for the amendment will be
found in notes to Section 11 of the present Act. Although an affirmative covenant is not by itself invalid as between
a transferor and transferee (Section 11), negative or restrictive covenants alone can be specifically enforced against
third persons under the first para of this section.
Scope and application. —The section deals with covenants for the beneficial enjoyment of property
unconnected with any interest in that property or with any easement on that property. It is founded on the principle
of English Law dealing with the equitable doctrine of burden of a covenant which runs with the land. 40 In law,
except between landlord and tenant the burden of a covenant never runs with the land though the benefit may. 41
The covenant to create a permanent restraint upon the use of the land must not be vague and indefinite 42 and
must be sufficiently precise to create a real burden. 43 It must be capable of being ascertained with reasonable
definiteness 44 and must not be ultra vires . 45 A restrictive covenant is construed strictly and not so as to create a
wider obligation than is imported by the actual words. 46 In India, restrictive covenants based on equitable principles
of English Law are dealt with in
Section 40 of the Transfer of Property Act while covenants at law which run with the land are treated in
Sections 55(2), 65 and 108(c) of the same Act, as implied covenants. The former cannot be enforced against a
transferee for consideration without notice nor against such property in his hands while the latter are not dependent
for their enforcement on the question of notice.
By virtue of Section 40, where a third party is entitled to the benefit of an obligation arising out of a contract
annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon,
such right or obligation may be enforced against a transferee with notice thereof. 47
Section 40 of the Transfer of Property Act , deals with enforcement of the restriction by the transferor or
his assignee against a purchaser from the transferee. That section also pre-supposes existence of a right to restrain
the enjoyment in a particular manner for the beneficial enjoyment of his own property. Even under the second para
of Section 40, there must be a right or obligation for that purpose arising out of a contract and annexed to the
ownership of immovable property for the purpose of its enforcement against a gratuitous transferee or a transferee
for consideration with notice of the right or obligation. Under Section 40 validity of the covenant creating the right is
Page 2 of 25
S.39 (AA)
a condition precedent for the application of the section.48
Where a contract is personal contract and not a covenant annexed to the ownership of any immovable property,
e.g. a contract for payment of Zare Chauth in the pattas, such contract cannot be enforced against the assigeee. 49
Section 40 deals with easements and restrictive covenant as distinguished from covenants running with the land. 50
The section is not connected with the covenants running with the land. 51
The benefit of a negative restricted covenant with regard to contracts concerning land may be assigned, and so
third parties may acquire such rights under a contract to which they were not privy. If a person acquires interest in
land from another, either by purchase or lease or at the time of dissolution of the partnership, upon terms, which
bind him to observe certain covenants respecting the land, the assignee will take the rights and obligation of that
person and as such will be bound by the restrictive negative covenant, if the conditions imposed under an
agreement are reasonable. 52
Where a mortgagor executes a simple mortgage in plaintiff’s favour and thereafter alienates part of mortgaged
property to third person by registered sale deed and mortgage deed is registered thereafter, the mortgage takes
effect from the date of the execution of the mortgage deed, the purchaser is bound by the mortgage, he cannot
claim protection of
The subsequent transferee with notice of the prior agreement to sell stands in a judiciary capacity and holds the
property in trust to the prior agreement holder, but the prior agreement holder cannot automatically become the
owner by seeking the declaratory relief and has to necessarily file a suit for specific performance impleading both
the vendor and the subsequent transferee. 54
An agreement to sell, confers a right to seek specific performance of the contract, a right to seek refund of the
earnest money and a right to claim damages as spelt out in the agreement or otherwise established. An agreement
to sell, therefore, creates an obligation, that attaches to the ownership of the property. Any subsequent alienation,
therefore, would not be free from obligations flowing from a prior agreement to sell. A decree passed on the basis of
a subsequent agreement to sell, would, therefore, be subject to rights that flow from a prior agreement to sell. The
agreement to sell executed in favour of B was prior in time to the agreement executed in favour of the decree
holder. This principle would apply, and the decree passed in favour of S would prevail. Obligations flowing from the
prior contract for sale executed in favour of B , would not be affected by the subsequent attachment and sale made
pursuant to the decree passed upon the subsequent agreement to sell. 55
Section 40 only deals with the rights of the transferee of some land which is burdened with any restricted
covenants. 56 In the absence of sale the provisions of Section 40 are not applicable. The second and third
paragraphs of Section 40 are attracted on the completion of sale. 57
Page 3 of 25
S.39 (AA)
As revealed by illusion to Section 40, the agreement is enforceable against the subsequent transferee to the same
extent as against the transferor. 58
In the instant case, the condition not to construct any portion of the building within a space of 12 fingers from the
common wall on either side was stipulated in the covenant of transfer for the protection of the existing common wall
which was necessary for enjoyment of the respective portions of the building. That covenant being negative in
character, bound the land at the very inception and runs with the land for the beneficial enjoyment of which it was
imposed. Hence, a specific assignment of the benefit of the covenant in favour of the assignee of the covenantee
was not required. The assignee of the covenantee was entitled to enforce the covenant against the respondent. 59
"Covenant runs with the land.". —The expression "covenant runs with the land" has been taken from
the English Law of real property. It is an exception to the general rule that all covenants are personal. Even on the
footing that the clauses relating to renewal in the lease, in the instant case, contain covenants running with the land
the rule against perpetuity contained in section 14 of the Act, would not be applicable as no interest in property has
been created of the nature contemplated by that provision. 60
If the covenant bound the land at the inception, it goes with the land for the benefit of the assignee of the
convenantee and a specific assignment of the covenant in favour of the assignee (of the convenantee) is not
necessary. 61
Varieties of covenants. —Covenants are of several varieties. Amongst them are covenants affirmative,
that something is already performed or shall be performed hereafter, or negative, that the party has not performed
or will not perform a certain act. In this section we are concerned with the latter class of covenants. 62
Form of covenants. —A covenant is an agreement between two or more persons in writing whereby
some of the parties or one of them agrees with the other or others for the performance or non-performance of some
specified duty. A covenant implies a deed. 63 The party entering into the covenant is called the covenantor and he
with whom it is made the covenantee. 64 In practice the purchaser is the covenantor and the vendor the
covenantee. Words in the form of an exception may also amount to a covenant. 65 Words of recital also may when
joined and considered with the rest of the instrument, be the foundation of an action of covenant. 66
Cases in which restrictive covenants are not enforced. —There are certain classes of cases in
which restrictive covenants are not enforced. One is where the covenant is personal to the vendor, i.e. , where no
land is retained to which the benefit of the covenant can attach. 67 The other is where there is a total change in the
character of the locality. 68 So are covenants collateral such as concern some collateral thing and not the thing
granted 69 or positive covenants. A covenant to pay one-fourth of the sale price received on the sale of property is
not a restrictive covenant but merely a personal obligation of the transferor arising out of the contract. 70 In the
under mentioned case 71 a covenant by a lessee in a registered document of lease to pay Zare Chharam to the
lessor in case of any sale or transfer by him of that leasehold interest was held binding on and enforceable against
the assigns and the transferees. There is no such thing between a vendor and purchaser as a covenant to pay
money running with the land. 72 A covenant for indemnity is not a covenant for title to land and is so remote as not
to touch it. 73 A covenant that runs with the land is something which restricts the user of the land. A positive
covenant never runs with the land either in law or in equity. 74 A covenant involving the expenditure of money is
Page 4 of 25
S.39 (AA)
affirmative and the Court will not enforce it against the assignee of the covenantor whether such assigns takes with
or without notice. 75 The above principle do not apply to covenants in leases.
Benefit annexed to the land. —The more modern view is that the right arising out
of restrictive covenants entered into by the former owner of the land was, as Sir George Jessel, M.R., considered it,
analogous to a negative easement creating a paramount right, in the person entitled to it, over the land to which it
relates. That view, taken in Gomm’s case , 76 stands not only on the great authority of Sir George Jessel but also
upon the authority of other recent cases.
Restrictive covenants are sinews of the land. —When the benefit of a restrictive covenant has been
once clearly annexed to one piece of land there is presumption that it passes by an assignment of that land and it
may be said to run with the land in equity as well as at law without proof of special bargain or representation on the
assignment of the land. The covenant in such a case runs with the land because the assignee has purchased
something which inhered in or is annexed to the land which he bought. The purchaser’s ignorance of the existence
of the covenant does not defeat the presumption though it may be rebutted by proof of facts inconsistent with it. 77
Covenant running with the land. —In order to make a covenant run with the land it must in its
inception bind the land. It must also affect the nature, quality or value of the land coveyed, independently of
collateral circumstances, which latter are sometimes proposed as a test to determine whether a covenant runs with
the land or not. It is said to affect the nature when it tends to prevent the disturbance on the surface and thus to
preserve the natural state and condition of the land. It affects the value, for example, in the case of land properly
drained and let for agricultural purposes. A tenant would be more likely to take it and probably give more for it, if he
were assured that compensation would be payable in the event of the drainage system being dislocated by a
subsidence. 78 It is not sufficient that a covenant is concerning the land; to make it run with the land there must be
privity of estate between the contracting parties. 79 Whether a covenant runs with the land would depend partly on
the nature and partly on the form of the covenant. 80 An option to review the lease runs with the land and the lease-
hold interest and so both the lessors and lessee’s successor-in-title are bound. 81
A covenant for repurchase is not a covenant annexed to the land. 82
Where X obtains a sale deed with knowledge of the agreement of sale in Y’s favour, contract of sale in favour of Y
became annexed to the ownership of the house by virtue of this section and the same could be enforced against X
who had notice of the same. 83
What is essential for the effective annexation of a covenant to a land is the intention of the original parties to the
covenant for discovering which; one has to look to the wordings of the covenant and the surrounding
circumstances. If they show either that the covenant binds the land in its inception or if it affects the nature, quality
or value of the land, 84 it will go with the land to the transferee as being annexed to it. 85 A coal land without any
convenient egress from and ingress to it is without doubt much less valuable than the one with it. 86 Where such a
convenient of egress from and ingress into a coal land has been annexed to the plot A , effectively in order that this
Page 5 of 25
S.39 (AA)
benefit should run with it, when the plaintiff took the lease, he acquired the right to enforce it against the defendant
who had taken the plot B , with notice of the covenant. 87
"Third person". —The expression "third person" in Section 40 includes not only the original covenantee
but also his transferee or successor-in-interest. 88
Restriction on use of land for the beneficial enjoyment of the property of a third person having
no property therein. —On this subject, apart from the question of the equitable doctrine of notice which was
brought to a focus in Tulk v. Moxhay , 89 which is the leading case on that subject, the authorities clearly lay down
that the benefit of a covenant at law imposing restriction on land may run with the land but the burden can never do
so, except as between landlord and tenant. 90 In equity the burden of a covenant, however, runs with the land. It
has never been disputed that the Court has jurisdiction to enforce a contract between the owner of a land and his
neighbour purchasing a part of it, that the latter shall either use or abstain from using it in a particular way. In Tulk v.
Moxhay , a purchaser of land covenanted for himself, his heirs, executors, administrators and assigns, with the
vendor, his heirs, executors and administrators, that the land shall be used as a pleasure garden for the benefit of
occupiers of houses in the neighbourhood which belonged to the vendor. Although the character of the
neighbourhood had altered and its privacy as a place of residence considerably diminished and the occupiers of the
vendor’s house had ceased to use the garden, it was held that he was entitled to an injunction against the
assignees of the purchaser to restrain them from building upon the land.
In Haywood v. Brunswick Building Society , 91 the dictum of LORD COTTENHAN in Tulk v. Moxhay , 92 "If an equity
is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation
than the party from whom he purchased" was referred to as laying down the real principle that an equity attaches to
the owner of the land.
The result of the cases is that only such a covenant as can be complied with without expenditure of money will be
enforced against the assignee on the ground of notice. In Haywood v. Brunswick Building Society 93 the
Court in deciding that the assignee of a grantee was not liable on the covenant to repair, refused to apply the
doctrine of Tulk v. Moxhay , to affirmative covenants compelling a man to lay out money or to do any other act
which may be said to be of an active character. There is not a single case in which it has been held that the burden
and benefit of a covenant both run. In order that the benefit may run with the land the covenant must be one which
relates to or touches and concerns the land of the covenantee. It was pointed out that the doctrine of Tulk v.
Moxhay 94 was restricted to limited stipulations and could not be extended so as to bind in equity a
purchaser taking with notice of a covenant to expend money on repairs or to do something of that kind and that
such a covenant did not run with the land as to bind those who acquired it. 95 The doctrine of Tulk v. Moxhay
96 was considered by Jessel, M.R., to be either an extension in equity of the doctrine of Spencer’s case, 97 to
another line of cases or else an extension in equity of the doctrine of negative easements, such, for instance, as a
right to the access of light which prevents the owner of the servient tenement from building so as to obstruct the
light. The covenant in Tulk v. Moxhay was affirmative in its terms, but was held by the Court to imply a negative.
Where there is a negative covenant, expressed or implied, as, for instance, not to build so as to obstruct a view, or
not to use a piece of land otherwise than as a garden, the Court interferes on one or other of the above grounds.
This is an equitable doctrine establishing an exception to the rules of Common Law which did not treat such a
covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running
with the land or analogy to an easement. 98
Inter-dependent covenants. —Restrictive covenants treated under para 1 of the section become
important when considered with reference to general building schemes or as to how far they bind the covenantor or
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the covenantee and their assigns. The whole theory of inter-dependent covenants appears to point to an
arrangement made once and for all, either on a sale by auction, by conditions of sale stating the covenants and that
other persons will enter into similar covenants, and a plan exhibited at the sale, or by a scheme entered into already
by an antecedent sale, the particulars of which are stated to the purchaser and which are displayed upon a plan
drawn by the purchaser’s deed. "To enable an assignee to take the benefit of the restricted covenants there must
be something in the deed to define the property for the benefit of which they were entered into". 1 The owners in fee
of a residential estate and adjoining lands sold part of the adjoining lands to the defendant’s predecessor in title,
who entered into covenants with the vendors, their heirs and assigns, restricting their right to build on and use the
purchased land. The same vendors afterwards sold the residential estate to the plaintiff’s predecessors in title. The
conveyance contained no reference to the restricted covenants nor was there any contract or representation that
the purchasers were to have the benefit of them. Held, the plaintiffs were not entitled to restrain the defendants from
building in contravention of the restricted covenants entered into by their predecessors in title.
The law on the subject has never been stated more clearly than in Renals v. Cowlishaw by Hall, V.C., 2 whose
opinion was emphatically confirmed in the Court of Appeal 3 and was also approved and followed in the Queen’s
Bench Division. 4 It was there stated by him that it was well settled that the burden of a covenant entered into by a
grantee in fee for himself, his heirs and assigns, although not running with the land at law so as to give a legal
remedy against the owner thereof for the time being, is binding upon the owner of it for the time being in equity,
having notice thereof. From the cases of Mann v. Stephens , 5 Western v. Macdermott 6 and
7
Coles v. Sims , it must be considered as determined that anyone, who has acquired land, being one of the several
lots laid out for sale as building plots, where the Court is satisfied that it was the intention that each one of the
several purchasers should be bound by and should, as against the others, have the benefit of the covenants
entered into by each of the purchasers, is entitled to the benefit of the covenant; and that this right, that is, the
benefit of the covenant, ensures to the assign of the first purchaser, in other words, runs with the land of such
purchaser. This right exists not only where several parties execute a mutual deed of covenant but wherever a
mutual contract can be sufficiently established. A purchaser may also be entitled to the benefit of a restrictive
covenant entered into with his vendor by another or others where his vendor has contracted with him that he shall
be the assign of it, that is, have the benefit of the covenant. And such covenant need not be express but may be
collected from the transaction of sale or purchase. In considering this, the expressed or otherwise apparent purpose
or object of the covenant, in reference to its being intended to be annexed to other property, or to its being only
obtained to enable the covenantee more advantageously to deal with his property, is important to be attended to.
Whether the purchaser is a purchaser of all the land retained by his vendor when the covenant was entered into, is
also important.
To the same effect is Spicer v. Martin . 8 There Martin took his lease last of all. There were seven plots altogether
coveyed to the superior lessor. They were all subject to restrictive covenants. Each conveyance contained a ground
plan showing all seven lots. When the lease was taken by Martin the ground plan containing all the seven lots was
exhibited on the lease and Martin was told that all the other six lots had already been leased subject to similar
covenants. That was held by the House of Lords to be a sufficient statement of the building scheme.
Farewell, J., in Osborne v. Bradley , 9 divided restricted covenants into three classes.
"Negative covenants in conveyance in fee restricting the right of the purchaser to use the land purchased may be
considered as falling under three classes : (1) where the covenant is entered into simply for the vendor’s own
benefit; (2) where the covenant is for the benefit of the vendor in his capacity of owner of a particular property; and
(3) where the covenant is for the benefit of the vendor, in so far as he reserves unsold property, and also for the
benefit of other purchasers, as part of what is called a building scheme." To all three classes the rule enunciated by
Lord Cairns in Doherty v. Allman 10 applies—that is to say, where there are negative covenants which
are binding on the defendant the Court has, speaking generally, no discretion to consider the balance of
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covenience or matters of that nature, but is bound to give effect to the contract between the parties, unless the
plaintiff seeking to enforce the covenant has by his own conduct, or by that of the persons through whom he claims,
become disentitled to sue. Contractual obligations do not disappear as circumstances change, but a person who is
entitled to the benefit of a covenant may, by his conduct or omission, put himself in such an altered relation to the
person bound by it, as makes it manifestly unjust for him to ask a Court to insist on its enforcement by injunction.
The principle was considered in an elaborate judgment by Parker, J., in Elliston v. Reacher . 11 He enunciated the
four requisites for enforcing restricted covenants as between different purchasers as under :—
"In my judgment, in order to bring the principles of Renals v. Cowlishaw 12 and Spicer v. Martin
13 into operation, it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor; (2) that
previously to selling the lands to which the plaintiffs and defendants are respectively entitled, the vendor laid out his estate,
or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively) for sale in lots
subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lots, are
consistent and consistent only with some general scheme of development; (3) that these restrictions were intended by the
common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to
be and were for the benefit of other land retained by the vendor; (4) that both the plaintiff and defendants, or their
predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which
the purchasers were made were to enure for the benefit of the other lots included in the general scheme whether or not
they were also to enure for the benefit of other lands retained by the vendors."
Where these four points are established, the community of interest imports in equity the reciprocity of obligation
which is in fact contemplated by each at the time of his own purchase.
The above statement of the law was approved by the Court of Appeal. 14
Power reserved to vendor to vary stipulations .—The liability of a vendor, to whom power was
reserved to vary the stipulations, was considered in the case where building land was sold in a number of lots
subject to certain conditions as to fencing, repairing the roads, and to restrictions as to the class of houses to be
built. The conditions also provided that a statement to this effect should be inserted in the conveyance. By the 15th
condition the vendor reserved the right of selling the unsold land under different arrangements "and either subject to
or not subject to the stipulations as to fencing and other stipulations contained in the particulars of the conditions." It
was held as to the unsold lot, the vendor was subject to none of the restrictions. 15
For further reference see. 16
Benefit annexed to land dedicated to the public. —The benefit of restrictive covenants relating to the
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mode of building on an estate through which a road runs can be validly annexed to the site and soil of the road so
as to run with it, even after it has been dedicated to the public; but if the road is subsequently taken over by a local
authority a successor in title of the original owner of the road ceases to have such an interest in it, as will entitle him
to enforce the covenants. The surface of the road is no longer vested in him and the restrictions do not touch or
concern such interest in the road as he retains. 17
Covenant " ultra vires ." —Where land is acquired under a Special Act the
purchaser has no power in law to preclude himself or his successor from the exercise of his statutable power over
it.
By a Special Act a railway company were authorized to acquire certain land for the purpose of enlarging their
stations "and for other purposes of and connected with their undertaking." Under this power the railway company
acquired the land by voluntary agreement and covenanted in their conveyance that they and their assigns would at
all times thereafter use the land for a passenger station "and for no other purpose." Afterwards the railway company
contracted to sell part of the land that they did not require, and the purchaser required the covenant to be released.
Following the principle of Ayr Harbour Trustees v. Oswald , 18 the covenant was held to be ultra vires the railway
company and that they could sell free from the restrictions contained in it. 19
Scheme of mutual obligations established by common intention. —There is, however, an

alternative ground unaffected by any questions which may be raised on the operation of covenants at law or their
operation in equity. Where an owner of land deals with his land on the footing of imposing restrictive obligations on
the use of various portions of it as and when he alienates them, for the common benefit of himself (so far as he
retains any of the land) and of the various purchasers inter se , a Court of Equity will give effect to this common
intention, notwithstanding the absence of mutual covenants, provided that an intention that there should be mutual
obligation is sufficiently established 20 and the Court can ascertain with reasonable certainty the geographical area
within which the mutual obligations are intended to operate. 21 If no such geographical area is ascertained such
restriction will be unenforceable. 22 It is not necessary to find any express contract by the vendor or the several
purchasers; it may be collected or inferred from the nature of the transaction. 23 Therefore, if there was or is
evidence from which a scheme can be found to exist, it does not fail because it is not to be found in express terms.
24 This was the doctrine laid down in Torbay Hotel Ltd. v. Jenkins , 25 following Renals v. Cowlishaw 26
and Reid v. Bickerstaff , 27 a question dependent on construction of the covenant itself. It is otherwise where the
case is not one in which the benefit of the covenant was intended to be or was annexed to the houses in question
so that it would pass to any purchaser from him of any one of the houses, but that the vendor was obtaining a
covenant which would be of use to him for the protection of his houses in his own hands to enable him to dispose of
them advantageously to anybody with whom he might deal in the future. Where a restrictive covenant had been
entered into by a purchaser of land for the protection of the vendor’s immediately adjoining land but not so as to
annex the benefit of the covenant to that land, the covenant is not enforceable against an assign of the covenantor
by the executors of the covenantee if he had disposed of the whole of the adjoining property before his death. It can
make no difference even when the executors are persons to whom part of the covenantee’s property had previously
been assigned without an express assignment of the benefit of the covenant. 28
Common building scheme. —In order to establish the existence of a building scheme there must be
definite reciprocal rights and obligations over a defined area. If on a sale of a part of an estate the purchaser
covenants with the vendor, his heirs and assigns not to deal with the purchase property in a particular way, a
subsequent purchaser from the same vendor of another part of the estate does not take the benefit of the covenant
unless he is an express assignee thereof or unless the covenant is expressed to be for the benefit and protection of
the particular parcel purchased by the subsequent purchaser. The benefit of a covenant capable of being annexed
to land, but not expressed to be so annexed either by the deed containing the covenant or by some subsequent
instrument executed by the covenantee, does not pass as an incident of land on a subsequent conveyance. 29
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Where an estate is vested in a trustee who sells plots for building subject to restrictive covenants, each purchaser
has an equity against the other purchaser to compel the observance of the covenants. Such equity may be lost by
acquiescence. In a suit to enforce such an equity the trustees are necessary parties and the remaining purchasers
ought to be represented on the record. 30
Essentials of a building scheme. —There are three or four cases which at the present time show
exactly what is to be found if a scheme is to be inferred. The statement of the law is enunciated in Renals v.
Cowlishaw 31 and accepted in Spicer v. Martin . 32 After these two cases the same point arose in
Rogers v. Hosegood , 33 where Collins, L.J., stated:—"These authorities establish the proposition that, when the
benefit has been once clearly annexed to one piece of land, it passes by assignment of that land and may be said
to run with it." Then in Elliston v. Reacher , 34 which is a conspicuous example of "building scheme" cases, Parker,
J., laid down the four conditions which had to be fulfilled, 35 and in Reid v. Bickerstaff , 36 there has been
superadded to that a little more, and that is, that there must be a defined area.
Repurchase. —A sold part of an estate to B who entered into restrictive covenants for himself, his heirs
and assigns with A , his heirs, executors and administrators, as to buildings on the purchased property; but A did
not enter into any covenants as to the land retained. After this, A sold to other persons, various lots of the parts
retained but nothing appeared as to the contents of their conveyances nor was there any evidence that they were
informed of the covenants entered into by B . After this, A bought back from B what he had sold to him. Held, that
the benefit of B’s covenants did not in equity pass to the subsequent purchasers of other parts of the estate from A ,
and that A after the repurchase could make a title to the repurchased land discharged from the covenants. 37
Sale of estate in lots. —Where a property is put up for sale by a vendor in lots and restrictive
covenants are entered into with the vendor by each of the vendees, it is an inference of fact in each case whether
the purchasers of the different lots are bound inter se by such covenants. If such was in fact their intention, the
Court will enforce those covenants between the different purchasers and their assigns. The mere fact that the
vendor did not bind himself expressly to enforce the covenants which he takes for the benefit of the purchasers is
not material. 38
Injunction or damages. —Where a breach of a restrictive covenant causes substantial damage the
Court has no discretion to award damages in lieu of a mandatory injunction. 39 The real truth is that in the
enforcement of restrictive covenants an assignee with notice is in the same position as a covenantor. 40 That the
Court has a wider discretion to award damages in lieu of injunction in respect of breaches of equitable restrictive
covenants is contrary to a long chain of authorities. 41 An injunction will be granted against a purchaser, 42 an
occupier, 43 a person in possession without title, 44 but not against a covenantor who has parted with all his interest
and has no control over his assignee who persists in breaking the covenant, 45 or against a covenantor who has
himself not violated the covenant. 46 It has, however, been held (the Court of Appeal expressing no opinion on this
point) that the Court has a judicial discretion with regard to granting an injunction to prevent the breach of a
restrictive covenant, where there is no privity of contract between the parties; and it will not grant an injunction
where no damage can be proved by the person seeking to enforce the covenant and the breach is not of a kind to
cause any nuisance or annoyance. 47
Who can annex the burden to the land. —It is submitted that a person cannot burden the land before
he becomes the legal owner thereof. 48 An owner of land, deriving title under a person who has entered into a
restrictive covenant concerning the land, which covenant does not run with the land at law, is not bound in equity by
the covenant even if he took the land with notice of its existence, if the covenantee is not in possession of or
interested in land for the benefit of which the covenant was entered into. In such a case the doctrine of Tulk v.
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Moxhay 49 does not apply 50 and the fact of notice is irrelevant.
Enforceability of covenant against assign of covenantor. —The equitable doctrine enabling

restrictive covenants to be enforced against assigns with notice ought not to be extended in derogation of the
ordinary rights at common law of purchasers and it ought to be applied only where it is sought to enforce the
covenant in connection with the enjoyment of land that the covenant was intended to protect. That appears to apply
quite as much to a case where the original covenantee retained land at the date of the covenant and he or his
successors god rid of the whole of it afterwards, as to a case where the original covenantee either had no land or
had no land which he was retaining. 51
By an agreement dated the 26th day of November 1926, defendant No. 1 agreed to sell certain immoveable
properties to the plaintiff. On the 22nd December 1926, defendant No. 1 sold the same properties to the respondent
by a registered sale deed. The plaintiff filed a suit for specific performance of his agreement. It was held that
although under
Section 54 of the Transfer of Property Act, 1882 , the plaintiff’s agreement for sale did not create by itself
any interest in or charge on the property, he was entitled under
Section 27(b) of the Specific Relief Act , 1877, to enforce the agreement against the respondent, the
subsequent transferee of the property. Under the latter section as read with Sections
Section 103 and
106 of the
Indian Evidence Act , the burden of proof lay upon the later transferee to establish; (a) the payment of his
money, (b) his good faith, and (c) the absence of notice to him of the original contract.52 The case was, however,
distinguished from the somewhat analogous provision of the Insolvency Statute, namely, Section 55 of the
Presidency Towns Insolvency Act, 1909, and
Section 53 of the Provincial Insolvency Act, 1920 ; under these sections the same Board held that the
burden of proof lay on the Official Assignee to prove that a conveyance which he was seeking to set aside
thereunder was not made in good faith and for valuable consideration.53 The above view under the
Specific Relief Act has been taken in a number of cases,Himatlal v. Vasudev , 54 Baburam
Bag v. Madhab Chandra Pollay , 55 Tiruvenkatachariar v. Venkatachariar , 56 Naubat Rai v.
Dhaunkal Singh , 57 Muhammad Sadik Khan v. Masihan Bibi . 58 Their Lordships’ attention was drawn to
only one decision to a contrary effect, viz. , Peerkha Lalkha v. Bapu Kashiba Mali , 59 but their Lordships preferred
the earlier Bombay decision in Himatlal’s case.
Re-entry by covenantor on breach of covenant by his assign. —Can it be, because he has his
estate thrown back upon him with a building upon it which ex-hypothesi was erected in breach of the covenant, that
he is thereby made liable to pull down the buildings so erected, but not by himself ? This question was answered in
the negative in Powell v. Hemsley . 60 There the purchaser of a part of freehold building estate covenanted with the
vendor for himself and his assigns to erect no other than private residences. The purchaser granted a building lease
with similar covenants. The lessee committed a breach and became bankrupt, his trustee in bankruptcy disclaimed
the lease and the purchaser took possession of the land and the offending building. The vendor sold the rest of the
estate to the plaintiff with the benefit of the purchaser’s covenant. The plaintiff brought an action against the
purchaser to compel removal of the building and for damages. It was held that the breach was committed not by the
purchaser but by his assigns and that he had not by his conduct rendered himself liable for the violation of the
covenant and that the plaintiff was not entitled either in law or in equity to any relief. It was there observed that there
was no attempt to assign the benefit of damages for past breaches and therefore it was unnecessary to consider
whether it could be done legally or not.
Stranger to the consideration. —In the instant case, plaintiff and defendant held adjacent plots under
agreements for a lease from the Secretary of State for India. They were on identical terms. It was admitted on
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behalf of the defendant that he having knowledge of the conditions, inserted for the common benefit of a group of
lessees taking sites for buildings intended to be contiguous and to form a block, was bound both to the Secretary of
State and the lessees of the neighbouring plots, and on whom reciprocally, he, on his part, had a claim for the
fulfilment of the like terms by them for his benefit as lessee. It was held that neither the lessee nor his neighbour
could be called a stranger to the consideration. Each was equitable assignee of the covenants which the lessor
made for his benefit as lessee. Each consequently had an equitable right to enforce against the other the obligation
stipulated for in his interest and serving as a part of his inducement to the contract. 61
Defect in title. —A restrictive covenant is a defect in title, entitling the purchaser to be relieved from the
contract. 62
Trustee. —Where a contract is made for the benefit and on behalf of a third person, there is an equity in
that third person to sue on the contract and the person who has entered into the contract may be treated as a
trustee for the person for whose benefit it has been entered into. 63
Obligation annexed to the ownership of immoveable property (Second Paragraph). — Clause 2 of

Section 40 deals with the burden of an obligation annexed to the ownership of immoveable property but not
amounting to an interest or easement thereon. As the illustration to the section shows, an agreement for sale falls
within the purview of this clause. Section 54 states what a contract for sale does not create, while this clause
expressly affirms the first intended purchaser’s right to enforce the benefit of the obligation of his intended vendor
against the second purchaser with notice. 64 The second purchaser is, moreover, according to the
Specific Relief Act, 1963, Section 3 , a trustee for the first intended purchaser of the land purchased by
him. See illustration (g) to that section. Again,
Section 91 of the Indian Trusts Act, 1882 , affirms the same rule as the
Specific Relief Act .
This decision may appear to be inconsistent with the result arrived at in Lalchand v. Lakshman 65 and in
Kurri Veerareddi v. Kurri Bapireddi 66 from which, if rightly decided, it would appear that the first
intended purchaser would have no defence against a suit by his intended vendor for possession although by reason
of the statutory provisions above referred to, he has a complete defence against his vendor’s assignee,
notwithstanding that the latter has no greater knowledge than the vendor possessed.
Where a contract was entered into before the passing of the

Transfer of Property Act
whereby the parties agreed that in case of any future transfer by one party of the immoveable property mentioned in
the contract the transfer was to be made to the other party, although held to be binding on the parties themselves
and their representatives, could not be specifically enforced against a bona fide transferee for value without notice
of the contract. The Court observed, that whether the principles embodied in Section 40 of the Act or the general
principles of justice, equity and good conscience applied to the obligation of the representatives,
Section 27 of the Specific Relief Act, 1963 must apply and the contract could not be specifically enforced
against a transferee for value without notice.67
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Though the agreement of sale does not create any right, title or interest in the property under
Section 64 of the Code of Civil Procedure, 1908 , it creates an interest in the property by operation of
second paragraph of
Section 40 of the Transfer of Property Act, 1882 and this right prevails by operation of Order 38, Rule
10,
Code of Civil Procedure, 1908 .68
The ultimate paragraph of

Section 54 of the Transfer of Property Act , expressly enunciates that a contract for the sale of
immovable property does not, of itself create any interest in or charge on such property. But the ultimate and
penultimate paragraphs of
Section 40 of the T.P. Act , make it clear that such a contract creates an obligation annexed to the
ownership of immoveable property, not amounting to an interest in the property, but which obligation may be
enforced against a transferee with notice of the contract or a gratuitous transferee of the property. Thus, the
equitable ownership in property recognised by Equity in England is translated into Indian Law as an obligation
annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be
enforced against a transferee with notice or gratuitous transferee.69
Easement. —Where the benefit of the obligation amounts to right of easement, paragraph 2 of Section
40 does not apply. 70
Pre-emption. —A contract giving rise to a right of pre-emption clearly falls within the category of clause
2 of Section 40. 71 Whether such a contract offends the rule against perpetuities has been much discussed by the
Courts of this country. The view of the Allahabad High Court was that an agreement for pre-emption is neither void
for uncertainty nor does it offend the rule against perpetuities, 72 while the Bombay High Court has said that the rule
of perpetuities applied to this class of contracts. 73 The Calcutta High Court 74 has also adopted the rule in London
South Western Railway Co. v. Gomm . 75
The matter has been considered by the Supreme Court and the Court has held that when a contract e.g., contract
for pre-emption has been executed in which interest in present has been created, the rule of perpetuity has no
application. An agreement which has created pre-emptive right in favour of the co-owner, is enforceable as and
when an attempt is made by the co-owner to alienate the land to third parties, the rule against perpetuity has no
application. 76
Section 40, Transfer of Property Act , applies to a contract of pre-emption and under the last paragraph
of the section, the right or obligation created by such a contract "may be enforced against a transferee with notice
thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and
without notice of the right or obligation nor against such property in his hands."77 The right of pre-emption available
under
Section 40, T.P. Act is available only against the transferee and not against the transferor78 , and after
the completion of sale and registration of the sale deed. 79 Further, what is necessary for the exercise of right of pre-
emption, is that the person claiming right of pre-emption must file suit within the period of one year prescribed by Art
97 of the Schedule to the
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Limitation Act, 1963 .80
Notice. —A transferee with notice is liable under the section and so is a gratuitous transferee whether
with or without notice. In order that the right or obligation under this section may not be enforceable, the transferee’s
defence must be that he is a transferee for consideration without notice of the right or obligation. Equity favours a
transferee for value without notice. Constructive notice would be a bar to such a defence. 81 Burden lies upon the
transferee to establish (1) payment of money, (2) absence of notice, 82 both together constituting a single defence.
Notice is not binding when performance of the covenant involves a transferee into expense. 83
Against such property in his hands. —This answers the question whether the land in the hands of a
transferee for value without notice is bound so that he can be restrained from using it in a manner contrary to the
covenant. The lessee of premises No. 137, High Street, East Ham, carried on therein the business of a pork
butcher. The lease contained a covenant by which he covenanted not to carry on therein any noisy or offensive
trade other than that of a pork butcher. He was also lessee under a different landlord of premises No. 170 in the
same street, upon which he carried on the business of a general butcher. He sold and assigned to the plaintiff his
interest in the last mentioned premises and the goodwill of his business as a general butcher, covenanting with the
plaintiff (inter alia ) that he, his executors, administrators and assigns, would not "cut, sell or deal in fresh
hindquarter beef, mutton, veal, lamb or poultry at or upon the premises No. 137, High Street, East Ham, or in
connection with the business of a pork butcher now carried on there by him." He afterwards gave up business and
surrendered his lease of No. 137 to the landlord; and a new lease thereof was granted to his son by the landlord,
which lease contained a covenant that the lessee would not carry on upon the premises any noisy or offensive
trade other than—not "that of a pork butcher," as in the old lease, but—"that of a butcher." At the time when the
landlord accepted the surrender, he had not in fact notice of the restrictive covenant entered into by the father with
the plaintiff as regards No. 137, but the son, when the new lease was granted to him, knew of the existence of that
covenant. The son afterwards set up the business of a general butcher on the premises No. 137, High Street.
Held, that under the circumstances of the case the landlord was not affected with constructive notice of the father’s
covenant, and, consequently, could grant to the son a lease free from the restriction of that covenant, and that the
son therefore could not be restrained at the suit of the plaintiff from carrying on the business of a general butcher at
No. 137. That is to say, a purchaser of land from one who has purchased it for value without notice, either actual or
constructive, of a restrictive covenant is not bound by the covenant although he himself had notice of it. 84 That is,
the defendant was entitled to avail himself of those through whom he claimed being purchasers without notice
whether he had notice himself or not. The only exception to this rule is that which prevents a trustee buying back
trust property which he has sold, or a fraudulent man who has acquired property by fraud saying he sold it to a bona
fide purchaser without notice and has got it back again. 85
Judicial sales. —A contract for the sale of immoveable property can be specifically enforced against a
purchaser of the same at a sale subsequently held in execution of a decree against the contractor only if the
purchaser at the judicial sale bought with notice of the contract. "Judicial sales would be robbed of all their security
if vague references to antecedent contracts could be held to invalidate the buyer’s title."
Assuming that Section 64 of the

Section 40 of the Transfer of Property Act has full scope, it is only if the purchaser at the judicial sale
bought with notice of the contract that it could be enforced against him.86 The above remarks were made by the
Privy Council in a case where the only notice given was by the pleader of an intending purchaser at the auction sale
that the debtor had contracted to sell the property to his client which notice the Judicial Committee considered as
Page 14 of 25
S.39 (AA)
insufficient to deprive the transferee of the protection afforded by this section.
Conflict between
Section 64 of the Civil Procedure Code, 1908 , and
Section 40 of the Transfer of Property Act .—The obligation conferred by this section which is
enforceable under an agreement for sale, frequently comes into conflict with a claim enforceable under an
attachment restraining private alienation of the attached property under
Section 64 of the Code of Civil Procedure . The attachment prohibits private alienation while Section 40,
if given its full scope, gives the transferee a right to enforce the contract. The point arose in a Calcutta case 87 in
which it was held that an agreement to sell immoveable property cannot prevail over a subsequent attachment
whether before or after judgment and the fair effect of Section 64 and O. XXXVIII, r. 10 of the
Code of Civil Procedure, 1908 , in the events that had happened was that attaching creditors were
entitled to have the balance receivable under the agreement by the debtor applied to the payment of their debts. In
that case, however, Sec tion 55,clause 6, sub-clause (b) of the
Transfer of Property Act which entitles a purchaser who has paid a part of the purchasemoney to a
charge on the property, was not referred to; for as a matter of fact the purchaser in the Calcutta case had paid a
sum of Rs. 25,000 odd as purchase-money in advance to the vendor before the attachment was levied. It was,
however, observed in that case that it was open to the intended purchaser to compel the transferee at the execution
sale to sell the property to him. The same point arose in a Madras case but there the intended purchaser was in
advance of the attaching creditor and it was held that the attachment could not prevail against the decree for
possession obtained by the purchaser; the distinction between the two cases being, that in the Calcutta case the
transfer to the purchaser was by private alienation, while in the Madras case it was a judicial sale. In either case,
however, it was observed that it was open to the intended purchaser to enforce his agreement for sale by specific
performance. In neither case was it considered that an attachment created a charge on the property.88 In the
Madras case property which the first defendant had contracted to sell to the second defendant was attached by the
plaintiff in execution of a money decree against the first defendant. After the attachment second defendant sued for
specific performance and obtained a decree and possession. He put in a claim to the attached property which was
allowed. In a suit brought by the plaintiff to set aside the order, it was held that the proper course was to file a suit
under
Section 53 of the Transfer of Property Act .89 The matter came before the various High Courts. In later
decision also the Madras High Court held that the purchaser under an antecedent agreement gets good title despite
attachment. 90 The Calcutta High Court in the under mentioned case 91 held that under a contract of sale entered
into before attachment the conveyance after attachment in pursuance of the contract passes on good title in spite of
the attachment. The same view was taken by the Bombay High Court in the undermentioned cases. 92 The High
Court of Travancore-Cochin in the undermentioned case 93 also adopted the same reasoning. The Punjab &
Haryana High Court, however, took a contrary view in the undermentioned case. 94 This was also the observation
of the Lahore High Court in the undermentioned case 95
The Supreme Court in the undermentioned case 96 approved the view taken by Madras, Bombay, Calcutta and
Travancore High Courts and held that the agreement for sale indeed creates an obligation attached to the
ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the
judgment debtor, the attachment cannot be free from the obligations incurred under the contract for sale.
Section 64 of the Code of Civil Procedure, 1908 , no doubt was intended to protect the attaching creditor,
but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment, the
contractual obligation arising there from must be allowed to prevail over the rights of the attaching creditor. The
rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent
agreement for sale of the attached property.
In a later under mentioned case, 97 the Supreme Court held that a sale deed executed prior to the attachment
before judgment, though registered afterwards would prevail over attachment before the judgment.
Page 15 of 25
S.39 (AA)
S. 64, Code of Civil Procedure, 1908 , has been amended by the

Code of Civil Procedure, 1908 , (Amendment) Act, 2002 and the amended provision now provides that
the provision of the section shall not apply to any private transfer or delivery of the property attached or of any
interest therein made in pursuance of any contract for such transfer or delivery entered into and registered before
attachment.
40 Tulk v. Moxhay , (1848) 1 H. & Tw. 105 : 47 ER 1345.
41 Rogers v. Hosegood , (1900) 2 Ch. 388.
42 Murray v. Dunn ,
(1907) A.C. 283 ; Taylor v. Gilbertson , (1854) 2 Drew. 391 : 61 ER 770.
43 Anderson v. Dickie,
(1915) 84 LJPC 219 .
44 Torbay Hotel Ltd. v. Jenkins , (1927) 2 Ch. 225.
45 London and South Western Railway Co. v. Gomm ., (1882) 20 Ch. D. 562; Re. South
Eastern Railway Co. and Wiffin’s Contract , (1907) 2 Ch. 366; Stourcliffe Estates Co. v. Bournemouth Corporation ,
(1910) 2 Ch. 12.
46 Briggs v. Thornton , (1904) 1 Ch. 386; Kemp v. Bird , (1877) 5 Ch. D. 974.
47 S.N. Arora v. Brokers & Brokers Pvt. Ltd .,

2010 (7) AD (Delhi) 243 (DB).
48 Leela v. Ambujakshy ,
AIR 1989 Ker 308 [
LNIND 1989 KER 169 ] (311).
49 Ram Briksh Prasad v. Shyam Suder Prasad Sahu ,

AIR 1962 Pat 193 (
AIR 1958 Pat 467 reversed ).

AIR 1980 All 78 (81) : 1979 All WC 637.

AIR 1980 All 78 (81) : 1979 All WC 637.
Page 16 of 25
S.39 (AA)
52 Hukum Chand v. Jaipur Ice & Oil Mills , AIR

1980 Raj 155 (165) :
1980 Raj LW 306 .
53 K.R. Varadaraja Iyengar v. T. Lakshminarayana Setty ,

AIR 1985 Kant 245 [
LNIND 1985 KANT 36 ] (248) :
(1985) 2 Kant LJ 89 :
ILR 1985 Kant 1268 .
54 Kondappali Satyanaraya v. Kondapalli Maulu ,

AIR 1999 AP 170 [
LNIND 1998 AP 874 ] (173) (DB):
(1999) 2 ALT 79 :
(1999) 2 ALD 175 .
55 Jagroop Singh v. Boria Khan, (2009-I) 153 Punj LR 807 (813) (P&H).

AIR 1976 All 411 (413).
57 In the matter of Titagarh Industries Ltd. , 2008 (1) Cal HN 279 (286) (Cal).
58 (1992) 1 Cur CC 232 (234) (Ker).
59 Princy v. Jose,
AIR 2010 Ker 1 [
LNIND 2009 KER 225 ] (5).
60 R. Kempraj v. Barton Son and Co. , AIR

1970 SC 1872 (1874, 1875) :
(1969) 2 SCC 594 [
LNIND 1969 SC 302 ].
61 Princy v. Jose,
2009 (2) KLT 426 [
LNIND 2009 KER 225 ] :
ILR 2009 (2) Ker 533 : 2009 (2) KLJ 335.
62 Platt on Covenants, p. 19.
Page 17 of 25
S.39 (AA)
67 Tulk v. Moxhay , (1848) 2 Ph. 774 : 47 ER 1345; Renals v. Cowlishaw , (1879) 11 Ch. D.
866; Formby v. Barker , (1903) 2 Ch. 539; Osborne v. Bradley , (1903) 2 Ch. 446; Elliston v. Reacher , (1908) 2 Ch.
665; Milboun v. Lyons , (1914) 1 Ch. 34; London County Council v. Allen ,
(1914) WN 255 .
68 German v. Chapman , (1877) 7 Ch. D. 271; Sages v. Collyer , (1884) 28 Ch. D. 103;
Knight v. Simmonds , (1896) 2 Ch. 294; Sobey v. Samsbury , (1913) 2 Ch. 513.
69 Spencers Case 5 Co. 16; Platt on Covenants, p. 69; Formby v. Barker , (1903) 2 Ch. 539;
re. Fawcett and Holmes Contract , (1889) 42 Ch. D. 150; Groves v. Loomes , (1885) 55 LJ Ch. 53.
70 Haji Abdul Shakur v. Nandlal ,

AIR 1931 All 552 ; Prabhu Narain Singh v. Ramzan ,
(1919) 41 All 417 not approved (case of a lease). See however, Rambriksh v.
Shyamsunder ,
AIR 1958 Pat 467 : 1958 BLJR 554.
71 Rambriksh v. Shyamsunder ,
AIR 1958 Pat 467 : 1958 BLJR 554.
72 Mohini Mohan Roy v. Ramadas Paramhansa,

AIR 1924 Cal 487 .
73 Natesa Vanniyan v. Gopalaswami , (1928) 51 Mad 688 ; Doughty v. Bowman,

(1848) 11 QB 444 : 116 ER 548; Mt. Banti v. Mandu , (1928) 9 Lah 659.
74 Jogesh Chandra Roy v. Asaba Khatun ,

AIR 1927 Cal 41 ; Maharaj Bhadur Singh v. Bal Chand Chowdhury ,
(1920) 25 CWN 770 .
(1925) 27 Bom LR 73 .
76 (1882) 20 Ch. D. 562; Rogers v. Hosegoods , (1900) 2 Ch. 388; Hall v. Ewin , (1887) 37 Ch. D. 74;
Haywood v. Brunswick Permanent Benefit Building Society,
(1881) 8 QBD 403 ; In re Nisbet and Potts Contracts , (1906) 1 Ch. 386.
77 Rogers v. Hosegood , (1900) 2 Ch. 388; Re. Nisbet and Potts (Contracts) , (1906) 1 Ch.
386.
78 Dyson v. Foster , (1909) A.C. p. 98; Rogers v. Hosegood , (1900) 2 Ch. 388; Mathewson
v. Ram Kanai ,
(1909) 36 Cal 675 ; Hoogly Bank Ltd v. Mahendra Malh ,
Page 18 of 25
S.39 (AA)
AIR 1950 Cal 195 ; N.K. Singh v. N.M. Singh ,

AIR 1955 Manipur 37 .
80 Radha Kamal v. Puri Municipality ,

AIR 1954 Ori 110 [
LNIND 1953 ORI 19 ] (112) (DB).
81 Radha Kamal v. Puri Municipality ,

AIR 1954 Ori 110 [
LNIND 1953 ORI 19 ] (112) (DB); Ramesh Chandra Das v. Atul Chandra Sarkar ,
AIR 1959 Ass 22 .
82 N.K. Singh v. N.M. Singh , AIR 1955 Mani 37 (39).
83 Chand Mohammad v. Murtuza Khan Mohd Mustafa Khan ,

AIR 1958 Bom 194 [
84 See Dyson v. Forster,

1909 AC 98 ; Jamini Bala Dasi v. Administrator General of W. Bengal ,
(1953) 1 Cal 34 .
85 Rajpur Colliery Co. v. Pursottam ,

AIR 1959 Pat 463 (472) (DB) : (1959) 38 Pat 443.

AIR 1959 Pat 463 (472) (DB) : (1959) 38 Pat 443.

AIR 1959 Pat 463 (472) (DB) : (1959) 38 Pat 443.
88 Kali Chanran Chakroborty v. Durga Charan Banerjee ,

AIR 1985 NOC 180 : (1984) 1 Cal H.N. 345 (Cal).
89 (1848) 1 H&TW 105 : 47 ER 1345.
90 Austerberry v. Corporation of Oldham , (1885) 29 Ch. D. 750; Bailey v. Stephens , (1862)

12 C.B. (N.S. 91) : 142 ER 1097; Richards v. Harper ,
(1866) LR 1 Ex. 199; Dennett v. Atherton,
(1872) 7 QB 316 .
91
(1881) 8 QBD 403 .
Page 19 of 25
S.39 (AA)
92 (1848) 1 H. & TW 105 : 47 ER 1345.
93
(1881) 8 QBD 403 .
94 (1848) 1 H. & TW 105 : 47 ER 1345.
95 Austerberry v. Corporation of Oldham, (1885) 29 Ch. D. 750.
96 (1848) 1 H. & TW 105 : 47 ER 1345.
97 (1583) 5 Co. Rep. 16a : 77 ER 72.
98 London and South Western Railway Co. v. Gomm , (1882) 20 Ch. D. 562.
1 Renals v. Cowlishaw , (1879) 11 Ch. D. 866.
2 (1878) 9 Ch. D. 125.
3 (1879) 11 Ch. D. 866.
4 Nottingham Patent Brick & Tile Co. v. Butler,

(1885) 15 QBD 261 .
5 (1846) 15 Sim. 377 : 60 ER 665.
6 (1866) 2 Ch. App. 72.
7 (1853) Kay 56 : 69 ER 25.
8
(1888) 14 A.C. 12 .
9 (1903) 2 Ch. 446.
10
(1878) 3 AC 709 .
11 (1908) 2 Ch. 374.

Page 20 of 25
S.39 (AA)
12 (1878) 9 Ch. D. 125.
13
(1888) 14 AC 12 .
14 Elliston v. Reacher , (1908) 2 Ch. 665.
15 Sidney v. Clarkson , (1865) 35 Beav. 118 : 55 ER 839.
16 Mayner v. Payne , (1914) 2 Ch. 555; Kelly v. Barrett , (1924) 2 Ch. 379; Whitehouse v.
Hugh , (1906) 2 Ch. 283; Wille v. St. John , (1910) 1 Ch. 84; Elliston v. Reacher , (1908) 2 Ch. 665.
17 Kelly v. Barrett , (1924) 2 Ch. 379.
18
(1883) 8 AC 623 .
19 In re South Eastern Railway Co. and Wiffin’s Contract , (1907) 2 Ch. 366.
20 Torbay Hotel Ltd. v. Jenkins , (1927) 2 Ch. 225, 240.
21 Torbay Hotel Ltd. v. Jenkins , (1927) 2 Ch. 225; Elliston v. Reacher , (1908) 2 Ch. 374
(384); Renals v. Cowlishaw , (1878) 9 Ch. D. 125.
22 Reid v. Bickerstaff , (1909) 2 Ch. 305.
23 Nottingham Patent Brick and Tile Co. v. Butler,

(1885) 15 QBD 261 .
25 (1927) 2 Ch. 225.
26 (1878) 9 Ch. D. 125.
27 (1909) 2 Ch. 305.
28 Chambers v. Randall , (1923) 1 Ch. 149; Master v. Hansard , (1876) 4 Ch. D. 718; Miles
v. Easter , (1933) 1 Ch. 611.
29 Reid v. Bickerstaff , (1909) 2 Ch. 305.

Page 21 of 25
S.39 (AA)
30 Eastwood v. Lever , (1863) 33 LJ Ch. 355.
31 (1878) 9 Ch. D. 125.
32
(1889) 14 AC 12 .
33 (1900) 2 Ch. 388.
34 (1908) 2 Ch. 374.
35 See caption "Interdependent covenants," ante .
36 (1909) 2 Ch. 305.
37 Keats v. Lyon , (1869) 4 Ch. A. 218; Renals v. Cowlishaw , (1878) 9 Ch. D. 125.
38 Nottingham Patent Bricks and Tile Co. v. Butler,

(1886) 16 QBD 778 ; Harrison v. Good ,
(1871) LR 11 Eq. 338.
39 Achilli v. Tovell , (1927) 2 Ch. 243.
40 See Richards v. Revitt , (1877) 7 Ch. D. 224.
41 Western v. Macdermott ,
(1866) LR 1 . Eq. 499; Leech v. Schweder , (1874) 9 Ch. 463; Nussey v. Provincial
Bill Posting Co. , (1909) 1 Ch. 734.
42 John Brothers v. Holmes , (1900) 1 Ch. 188.
43 Mande v. Falaka , (1891) 2 Ch. 554.
44 Re. Nisbett and Potts Contract , (1906) 1 Ch. 386.
45 Clement v. Welles , (1865) 1 Eq. 200.
46 Powell v. Helmsley , (1909) 2 Ch. 252.

Page 22 of 25
S.39 (AA)
48 Millbourn v. Lyons , (1914) 1 Ch. 34.
49 (1848) 1 H. & TW 105 : 47 ER 1345.
50 London County Council v. Allen , (1914) 3 K.B. 642; Torbay Hotel Ltd. v. Jenkins , (1927)
2 Ch. 225; Kelly v. Barrett , (1924) 2 Ch. 379; Chambers v. Randell , (1923) 1 Ch. 149; Millbourn v. Lyons , (1914) 1
Ch. 34; Formby v. Barker , (1903) 2 Ch. 539.
51 Chambers v. Randell , (1923) 1 Ch. 149; Formby v. Barker , (1903) 2 Ch. 539; London
County Council v. Allen,
(1914) 3 KB 642 .
52 Bhup Narain Singh v. Gokhul Chand, (1934) 59 CLJ 139 PC : 61 IA 115.
53 Official Receiver v. P.L.K., M.R.M. Chettyar Firm, (1930) 53 CLJ 373 : 58 IA 115. Pope v.
Official Assignee, (1933) 58 CLJ 471 : 60 IA 362.
54 (1912) 36 Bom 446.
55
(1913) 40 Cal 565 .
56
(1914) 26 MLJ 218 [
LNIND 1913 MAD 140 ].
57
(1916) 38 All 184 .
58 (1930) 9 Pat 417.
59
(1923) 25 Bom LR 375 [
60 (1909) 2 Ch. 253.
61 Cooverji v. Bhimji , (1882) 6 Bom 528.
62 Pemsel and Wilson v. Tucker , (1907) 2 Ch. 191; Doughtery v. Oates , (1900) 45 So. Jo.
119; In re Cox and Neve’s Contract , (1891) 2 Ch. 109.
Page 23 of 25
S.39 (AA)
63 Lloyd’s v. Harper , (1880) 16 Ch. D. 290; Master v. Hansard , (1876) 4 Ch. D. 718;
Tomlinson v. Gill , (1756) Amb. 330; Lamb v. Vice , (1840) 6 MW 467 ; Cooverji v. Bhimji , (1882) 6 Bom 528.
64 Gangaram v. Laxman , (1916) 40 Bom 498 ; K.R. Varadaraja Iyengar v. T.

Lakshminarayana Setty ,
AIR 1985 Kant 245 [
LNIND 1985 KANT 36 ] (248); Nuniamal v. Duni Chand ,
AIR 1962 Punj 299 .
65 (1904) 28 Bom 466.
66 (1906) 29 Mad 336.
67 Shahzad Singh v. Jiachha Kunwar ,

(1932) 54 All 966 .
68 Adinarayana v. S. Gafoor Sab ,

AIR 2004 AP 377 [
LNIND 2004 AP 243 ] (380, 381) :
(2004) 2 Andh LT 780 [
LNIND 2004 AP 243 ].
69 Bai Dosabai v. Mathuradas , AIR

1980 SC 1334 (1337, 1338) :
(1980) 3 SCC 545 [
LNIND 1980 SC 201 ].
70 Nunia Mal v. Maha Dev ,

AIR 1962 Punj 299 (307) :
ILR (1962) 2 Punj 255 [
LNIND 1961 PNH 165 ].
71 Basdeo Rai v. Jhagru Rai ,

(1924) 46 All 333 .

(1927) 49 All 527 (F.B.); Muhammad Jan v. Fazal-ud-din ,
(1924) 46 All 514 ; Basdeo Rai v. Jhagru Rai ,
(1924) 46 All 333 .
73 Dinkarrao v. Narayan , (1923) 47 Bom 191.
74 Nobin Chandra v. Nabab Ali ,

(1900) 5 CWN 343 .
75 Nobin Chandra v. Rajani Chandra ,

(1920) 25 CWN 901 : (1882) 20 Ch. D. 562.
Page 24 of 25
S.39 (AA)
76 Shivji v. Raghunath , AIR 1997

SC 1917 (1919) :
(1997) 10 SCC 309 [
LNIND 1997 SC 318 ] ; Ram Baran v. Ram Mohit , AIR
1967 SC 744 (749).
77 Mohammad Haji v. Umananda Kamath ,

AIR 1976 Ker 26 [
LNIND 1975 KER 101 ] (26) :
1975 Ker LT 446 .
78 In Re Weighbird India Ltd. ,

AIR 2007 NOC 2677 (Cal).

AIR 2007 NOC 2677 (Cal).

AIR 2007 NOC 2677 (Cal).
81 Patman v. Harland , (1881) 17 Ch. D. 353; Nottingham Brick Co. v. Butler,

(1886) 16 QBD 778 ; Parker v. Whyte , (1863) 1 H. & M. 167; Re. Nisbet and Pott’s
Contract , (1906) 1 Ch. 386; Clements v. Welles , (1865) 1 Eq. 200; Feilden v. Slater , (1869) 7 Eq. 523; Fleetwood v.
Hull,
(1889) 23 QBD 35 ; Jogamaya Dasi v. Tulsa ,
(1926) 48 All 12 ; Kameswaramma v. Sitaramanuja , (1906) 29 Mad 177.
82 Bhup Narain Singh v. Gokhul Chand, (1934) 59 CLJ 139 ; Wilkes v. Spooner,
(1911) 2 KB 473 ; Attorney General v. Biphosphated Guano Co. , (1879) 11 Ch. D.
327; Joseph Souro v. Thommen Micheal ,
AIR 1960 Ker 139 [
LNIND 1959 KER 178 ] (DB) :
1959 Ker LJ 975 :
ILR 1959 Ker 1242 . (The onus to prove that the transferee had no notice of a prior
charge is on the transferee.)
83 Hall v. Ewin , (1887) 37 Ch. D. 74; Clegg v. Hands , (1889) 44 Ch. D. 506; Powell v.
Helmsley , (1909) 2 Ch. 252.
84 Wilkes v. Spooner,
(1911) 2 KB 473 ; Lowther v. Carlton , (1741) 2 Atk. 242 : 26 ER 589; Barrow’s case
, (1880) 14 Ch. D. 432; Sweet v. Southcote , (1786) 2 Bro. C.C. 66 : 21 ER 433.
85 Barrows’ case , (1880) 14 Ch. D. 432.
86 Nur Mahomed v. Dinshaw,

(1923) 45 MLJ 770 .
Page 25 of 25
S.39 (AA)
87 Taraknath v. Sanatkumar ,
(1930) 57 Cal 274 .
88 Suraj Bunsi Koer v. Sheo Proshad Singh ,

(1880) 5 Cal 148 : 6 IA 88, 109; Anantapadmanabhaswami v. Official Receiver of
Secunderabad , (1933) 56 Mad 405 : 60 IA 167, 175.
89 Sankari v. Mudaragaddi Sanyasi,

(1924) 46 MLJ 361 [
LNIND 1924 MAD 4 ].
90 Paparaju Veeraraghavayya v. Killaru Kamala Devi,

AIR 1935 Mad 193 [
LNIND 1934 MAD 387 ]: 68 MLJ 67; Veerappa Thevar v. C.S. Venkatarama Aiyar,
AIR 1935 Mad 872 [
LNIND 1935 MAD 222 ]: 69 MLJ 678; Angu Pillai v. M.S.M. Kasiviswanathan
Chettiar ,
AIR 1974 Mad 16 [
LNIND 1972 MAD 198 ]:
(1973) 1 MLJ 334 [
LNIND 1972 MAD 198 ].
91 Purna Chandra Basak v. Daulat Ali Mollah ,

AIR 1973 Cal 432 [
LNIND 1973 CAL 168 ].
92 Rango Ramchandra Kulkarni v. Gurlingappqa Chinnappa Muthal,

AIR 1941 Bom 198 : 43 BLR 206; Yeshvant Shankar Dunakhe v. Pyaraji Nurji
Tamboli ,
AIR 1943 Bom 145 : 45 BLR 208.
93 Kochuponchi Varughese v. Ouseph Lonan ,

AIR 1952 TC 467 : ILR
1952 TC 201 .
94 Mohinder Singh v. Nanak Singh , AIR 1971 P&H 381 : 73 Punj LR 257
95 Buta Ram v. Sayyad mohammad ,

AIR 1935 Lah 71 : 16 Lah 328.
96 Vannarakkal K. Sreedharan v. Chandramaath Balakrishnan,

(1990) 1 SCR 832 [
LNIND 1990 SC 137 ] :
(1990) 3 SCC 291 [
LNIND 1990 SC 137 ] (293).
97 Hamda Ammal v. Avadiappa Pathar,

(1991) 1 SCC 715 : 1990 Supp (2) SCR 594.
End of Document
S. 40
Darashaw Vakil
Court sale. —In a Court sale, all rights and obligations of the judgment-debtor in relation to the property
sold are transferred to the auction-purchaser. 1
Mere agreement to lease. —A person who has a mere agreement to lease property in his favour and
has to enter into an agreement of lease is not a person having any right to or any interest in land. He, therefore, is
not entitled to any compensation in case the land is acquired under the provisions of
Land Acquisition Act, 1894 . In absence of any enforceable agreement question of the provisions of
Section 40 of the T.P. Act being attracted in the case does not arise at all.2
Miscellaneous. —Where in a suit for specific performance of contract against the vendor and the
subsequent purchaser, the vendor dies substitution of his heirs is necessary. So far the question whether the suit
can proceed against the purchaser, if such a substitution has not been made or disallowed, even though
Section 40 of the T.P. Act read with S. S.19 19 of the
Specific Relief Act, 1963 , permits the enforceability of the contract against the transferee, but the said
person is not the person to complete the contract, since he was not the person who entered into the contract. If no
substitution is made the suit abates as a whole.3
Transfer by ostensible owner
1 Kali Chanran Chakroborty v. Durga Charan Banerjee ,

AIR 1985 NOC 180 : (1984) 1 Cal HN 345 (Cal).
2 Bombay Municipality v. Ramadevi ,

AIR 1982 Bom 391 [
LNIND 1981 BOM 293 ] (396, 399) (DB) : 1982 Mh LJ 377.
3 Munni Devi v. Ramayan Singh ,

AIR 1985 Pat 35 (37) :
1985 Pat LJR 36 [
LNIND 1985 SC 133 ].
Page 2 of 2
S. 40
End of Document
Darashaw Vakil
S. 41.
Where, with the consent, express or implied, of the persons interested in
immovable property, a person is the ostensible owner of such property and
transfers the same for consideration, the transfer shall not be voidable on
the ground that the transferor was not authorised to make it: provided that
the transferee, after taking reasonable care to ascertain that the transferor
had power to make the transfer, has acted in good faith.
End of Document
S .41 (A)
Darashaw Vakil
COMMENTS
Scope and application. —In order to obtain the protection afforded by the section it is necessary for the
transferee to prove the existence of the following conditions 4 :
(1) A person is an ostensible owner of immoveable property
(2) with the consent, expressed or implied, of the person interested therein;
(3) and transfers the same for consideration.

(4) The transferee, after taking reasonable care to ascertain that the transferor had power to make the
transfer, has acted in good faith.
The section is an exception to the general law that a person cannot convey a better title than he himself has in the
property 5 , Section 41 has to be construed strictly. 6 Being an exception the onus certainly is on the transferee to
show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to
ascertain that the transferor had power to make the transfer, acted in good faith. 7
Ingredients of Section 41 include that the transferee had acted in good faith and taken reasonable care to ascertain
that the transferor had power to transfer. Transferees can claim benefit under Section 43 only against their vendors.
8
The section is a statutory recognition, followed in India, 9 of the principle enumerated by the Judicial Committee in
Ram Coomar v. McQueen . 10 It is a principle of natural equity that where one man allows another to hold himself
out as the owner of an estate and a third person purchases it for value from the apparent owner the man who so
allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow
that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice
of the real title or that there existed circumstances which ought to have put him upon an enquiry that, if prosecuted,
would have led to a discovery of it. It is necessary under the section to prove not merely consideration but also
good faith and due inquiry. 11 It is of the essence of the section that the conduct of the real owner must induce a
belief in the transferee that his transferor had power to make the transfer. 12 Section 41 provides that a transfer shall
not be voidable on the ground that the transferor was not authorised to make it where, with the consent express or
implied of the real owner, the transferor is the ostensible owner of such property and transfers the same for
consideration. The section obliges the transferee in all such cases to make reasonable enquiries to ascertain that
the transferor had power to make the transfer, and in addition the transferee must have acted in good faith. This is
based on the principle of equity that one, who allows another to hold himself out as the owner of an estate and a
third party purchased for value from the apparent owner in the belief that he is the real owner, the man, who so
Page 2 of 59
S .41 (A)
allows the other to hold himself out, shall not be permitted to recover upon his secret title, unless he can overthrow
that purchaser by showing either that he had direct notice or something which amounts to constructive notice of the
real title, or that there existed circumstances which ought to have put him upon an enquiry, which if prosecuted
would have lead to a discovery of it. 13
Where a transferee for valuable consideration seeks protection under

Section 41 of the Transfer of Property Act , the transferee must show that it was the real owner, who
permitted or created the apparent ownership of the transferor either by express words or consent or by acts or
conduct, which imply consent. Before one can be considered to be an ostensible owner, it was with the consent,
express or implied, of the true owner that the transferor was enabled to represent himself as the owner of the
property to abona fide purchaser for value without notice. Section 41 incorporates a rule akin to the rule of estoppel
whereby the real owner, who, by reason of his conduct or express or implied consent was responsible for the
creation of an ostensible ownership, cannot be permitted to set up his real ownership to defeat the rights of a bona
fide purchaser acting in good faith and who despite reasonable enquiries could not discover such real ownership. 14
Section 41 applies to an application for pre-emption also. 15 Section 41 for its application does not require that the
transaction must have been entered into with the consent of the real owners. 16 Where the morgagee has not made
enquiry before taking mortgage, he cannot claim benefit of Section 41. 17
Section 41 does not apply in cases of transfer by a limited owner like a Hindu widow either under the customary law
or under the Hindu Law. 18 It also does not apply where the property vests in an idol. 19 A Sarbarkar acts, for the
minor in such a case Section 41 can be invoked against an idol. 20 Section 41 has no application to cases where
property owned by an idol is in possession of or recorded in the name of Mahant. 21 There being no presumption
that the entire Hindu Law applies to Molesalam. Muslim Garsias in Baroda territory, release by one of the co-heirs
of a single promise of the entire mortgage security cannot be effected so as to bind the other co-heirs. In such
cases, the transferee who wants to rely on provisions of
Section 41 of T.P. Act , must prove that the transferor namely, the co-heir effecting the release was the
ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had
the power to make the transfer in good faith.22
A transferee from an ostensible owner is entitled to protection under

Section 41 of the T.P. Act , if he can establish that the sale in his favour was with the consent, express or
implied of the true owner, is for consideration and he has taken reasonable care to ascertain that the transferee has
the power to make the transfer and he acted in good faith. Where the bona fide purchaser had purchased the
property from a person who had purchased the evacuee property in auction, he was held protected under Section
41. 23
To qualify protection under the section alienees have to prove not only that the sales in their favour were supported
by consideration but to go further and establish by requisite evidence that in dealing with alienor, they had acted in
good faith after ascertaining that he had the power to sell the property. 24 Mere proof of passing of consideration
does not entitle a person protection extended by
Section 41, T.P. Act .25 There are two conditions to be fulfilled before the benefit of Section 41 could be
invoked by a transferee. The transferee must first prove that the transferor was ostensible owner of the property,
and that such ostensible owner was holding the property, with the consent, express or implied, of the real owner.
The second condition or term is that the transferee paid the consideration and acted in good faith after an enquiry
conducted with due diligence, or reasonable care. It is not enough that a transferee however bona fide takes the
property in good faith, if the real owner is not standing by acquiescing, expressly or by implication, in an ostensible
owner holding out the title. 26
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Section 51 contemplates possession of the vendor who conveys his interest to an innocent purchaser. 27
Where there was no proof adduced by the transferee to establish good faith or that necessary enquiries were made
before entering into the transaction of sales protection under
Section 41 of the T.P. Act was held not available.28
A transferee of interest pendente lite cannot invoke Section 41. 29
Where the conditions of

Section 41 of the T.P. Act are not fulfilled, protection ofSections 41 is not available.30 Only those
alienees from an ostensible owner are protected under
Section 41 of the T.P. Act who can establish that the sale in their favour was with the consent express or
implied of the true owner and that too only on proving that it was for consideration and they had taken reasonable
care to ascertain that the transferor had the power to make the transfer and they acted in good faith.31 Where there
is absence of reasonable care and ordinary prudence on the part of the transferee to make valid transfer, the
transferee is not entitled to protection extended by Section 41. 32
Where a certain land was allotted to a refugee from Pakistan in lieu of the property held by him in Pakistan but
subsequently the allotment was cancelled and the land was put to auction, the allottee participated in auction but
remained unsuccessful, a subsequent suit filed by the allottee challenging the auction was held not maintainable.
The conduct of the allottee of participation in the auction and the payment of lease money to the rehabilitation
authorities showed that the defendants believed that there was no dispute left between the rehabilitation authorities
and the allottee. 33
Where the developer after developing the old buildings reconstructed a multistoried building on its site, took steps to
get the property free from encumbrances, and all these actions of the developer were in the knowledge of the heirs
who never objected, held Section 41 was attracted in the case, the developer was bona fide purchaser for value
and subsequent transfers made by the developer were protected. 34
Section 41 and Section 43. —There is a substantial difference between the ambit of these two
sections. In Section 41, it is provided that a transfer by an ostensible owner cannot be avoided on the ground that
the transferor was not authorised to make it; and that rule is made subject to an express provision that the
transferee should take reasonable care to ascertain that the transferor had power to make the transfer and act in
good faith before he can claim its benefit. On the other hand, Section 43 enables a transferee to whom a transferor
has made a fraudulent or erroneous representation to lay hold at his option of any interest which the transferor may
subsequently acquire in the property provided his doing so does not adversely affect the rights of any subsequent ’
bona fide ’ purchaser for value without notice. 35 The conditions requisite for the application of Section 41 are that
there must be an ostensible owner with the consent, express or implied of the true owner and the transferee must
have acted in good faith and must have paid consideration. Section 43 is based on the principles of feeding the
grant by Estoppel. Section 43 comes into play when a transfer is made by a person who has no title to the property
transferred but later on he acquires title to that property. 36
Where the husband had granted property to his wife in lieu of her maintenance, the husband sold the property, the
wife instituted suit challenging the alienation made by the husband, on the death of the wife, her husband being
legal heir, would become the owner of the property. Section 43 being attracted in the case. Section 41 was held
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inapplicable in the case. 37
Fraudulent intention. —Fraudulent intention is by no means necessary to create estoppel. The

determining element is not the motive with which the representation has been made nor a state of knowledge of the
party making it but the effect of the representation as having caused another to act on the faith of it. An estoppel
does not in itself give a cause of action, but it prevents a person from denying a certain state of facts. 38
Non-representatives in interest. —Estoppel is purely personal and will not affect others in so far as
they claim a title otherwise than through the person primarily estopped. 39
"Consent express or implied". —It is well settled, and the section 41 is quite clear, that the real owner
must have by his consent express or implied held out the ostensible owner as the owner of the property. If either by
words or by conduct, he induced others to treat such a person as the real owner and to do that from which they
might have abstained, he cannot question the legality of the act to the prejudice of those who acted in good faith.
Mere possession of a Manager cannot be treated as ostensible ownership with the consent of the real owner. 40
For the purpose of Section 41 not only should the transfer by ostensible owner of the property be with the consent,
express or implied, of the real owner, but he must also transfer the same with such consent, express or implied. 41
Independently of other considerations, regarding the clause "with the consent, express or implied," from a
grammatical standpoint I should read it as modifying "is" only and not "transfer" also. The former reading gives to
the word "transfer" its ordinary and natural meaning; the latter distorts it. Some kind of consent of the real owner
has to be proved before Section 41 can be invoked. 42 It is necessary to establish that the vendor was ostensible
owner with the consent express or implied of the person interested in the property. 43
There is no implied authority in favour of the husband in respect of the separate properties of his wife. 44 Where the
husband has executed an agreement for sale in plaintiff’s favour in respect of a house in which his wife had one half
share, express or implied authority in husband’s favour to transfer wife’s one half share was not presumed. The
mere fact that the wife was present at the time of the execution of agreement for sale was held of no consequence
The plaintiff could not invoke Section 41. 45
Mere long possession, occupation or sole enjoyment of the property by a person does not entitle him to claim
consent of other co-sharers and ostensible owner. Mere inaction or silence of co-sharers cannot be interpreted to
be a consent unless it is proved that the person giving consent is aware of his rights, interest or title in the property.
46
The principle of Section 41 is attracted in case of voluntary transfer and not involuntary transfer by an unauthorized
person. 47
Where the defendant no. 1 had already executed sale deed in favour of his brother plaintiff, subsequent transfer of
the same property by the defendant no. 1 in favour of the defendants no. 5 and 6 was the result of fraud and forgery
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committed by defendant no. 1 and as such was invalid. 48
Nature of consent. —The consent, whereby a person becomes an ostensible owner may be either
express or implied of the true owner. It must be intelligent and not induced by misapprehension of legal rights. 49
The express or implied consent has to be valid and free consent. In case, the transfer is procured by fraud and
misrepresentation in absence of bona fide , the plea of bona fide purchase is not available, as the fraud vitiates
everything.
Section 41 of the T.P. Act , will have no application where transfer is held invalid under Sections 19 and
24 of the Act, as no estoppel can be pleaded against the provisions of the statute.50 It must be free and not caused
by the existence of circumstances enumerated in
Section 14 of the Indian Contract Act, 1872 .51 It may be implied by omission causing another’s belief
and action thereon. 52 It must be the true cause of the change of position of the other party. The question whether
there has been a representation amounting to acquiescence or not is a question of fact. 53 In the undermentioned
case, 54 one of the Judges of a Division Bench held that acquiescence was a question of fact while the other held it
to be one of legal inference from facts found. Mere presence is not necessarily equivalent to consent which implies
an intelligent concurrence on due consideration. The consent required is a matter not of form but of substance. 55 It
has been held that the consent mentioned in the section includes a consent based on a mistake 56 which must be
brought within the excepted Sections
Section 20 ,
21 and
22 of the
Indian Contract Act, 1872 . The consent referred to in Section 41 must continue upto the time of
transfer.57 Consent in Section 41 requires that there must be something than mere inaction or silence, by words or
conduct which induced the transferee to believe that the transferor was competent to transfer the property. 58 A
mere inaction or inactivity on the part of the real owner even with the knowledge of the transfer is not implied
consent. 59
Implied consent. —Consent which is inferred from conduct or course of dealing is implied as opposed
to express. Where a Court sees that the rights of one or two innocent parties must be sacrificed, it is entitled to
consider whether anything in the conduct of the party who comes into Court and seeks relief has debarred him from
asserting his right. The above observations were made where for a long term of years no ostensible act of
ownership was exercised by the plaintiff over the house but that on the contrary she allowed her husband’s cousin
to appear and deal with the house as ostensible owner and in consequence of his conduct the respondents were
induced to purchase. 60 The consent of the real owner may be implied where he is ignorant of his rights in the
property transferred. 61 Consent can be inferred form the conduct of the real owner. 62
Acquiescence is quiescence under such circumstances that assent may be reasonably inferred from it and is no
more than an instance of the law of estoppel by words or conduct; in other words, acquiescence does not mean
simply an active, intelligent consent but may be implied if a person is content not to oppose irregular acts which he
knows are being done. 63 The principle applies when one stands by and acquiesces in something that is being
done by another, and if in consequence of such acquiescence some injury is caused to some third party, it is
provided by the section that it is not open to the person so acquiescing to say that what was done by that other
person was not authorized by him. 64 Though mere acquiescence is not equivalent to consent yet consent need not
be by word and may be by act and if consent can be intimated by conduct as well as by act it is clear that
acquiescence may under certain circumstances be taken to be consent. 65 Silence cannot operate as an estoppel
unless it is shown that the transaction took place in consequence of the omission to protest or of the acquiescence
of the party keeping silence. The rule that one who, knowing his own title, stands by and encourages a purchase of
property as another’s, will not be allowed to dispute the validity of the sale implies a wilful misleading of the
purchaser by some breach of duty on the owner’s part. 66 Mere silence or omission to act does not create estoppel
unless there is a duty to speak, 67 and although under the said
Section 14 of the Indian Contract Act, 1872 , it vitiates consent, mere silence as to facts likely to affect
the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that
regard being had to them it is the duty of the person keeping silence to speak, or unless his silence is, in itself,
equivalent to speech.68 Mere inactivity on the part of the real owner with the knowledge of the transfer could not
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amount to implied consent within the meaning of Section 41 and could not debar him from acquiring his property
from the transferee within the period of limitation, unless by some word or conduct on his part he had induced the
transferee to believe that his transferor was competent to make the transfer. 69
The silence of reversioners when a mortgage is being negotiated cannot operate as an estoppel under
Section 115 of the Indian Evidence Act, 1872 , unless it is shown that the taking of the mortgage was in
consequence of the omission to protest or of the acquiescence of the reversioners.70 Their Lordships of the Judicial
Committee think that when a "stringent equity," to use Lord Hobhouse’s expression in the course of the argument in
Jiwan Sing v. Misri Lall , 71 arising out of an alleged consent by the reversioners is sought to be enforced against
them, such consent must be established by positive evidence, that upon an intelligent understanding of the nature
of the dealings they concurred in binding their interests; and that such consent should not be inferred from
ambiguous acts or be supported by dubious oral testimony. 72 On the death of Z , possession of the estate was
taken on behalf of S by the Court of Wards which a year after released the estate to Section The suit was instituted
six years after and some months afterS had completed his spendthrift career by being adjudged insolvent. The
claimants were women who had husbands who understood business. They were not ignorant of the state of the
family and of the descent of the property and of their share in the succession nor of the way in which S was
encumbering the estate and was thus allowed to be the ostensible owner of the property with the implied consent of
the claimants. 73 Certain properties were given as mahr by defendant No. 1 to defendant No. 2 at the time of their
marriage in 1908. This was not evidenced by any writing; and the properties continued as before in the name and
possession of defendant No. 1. In 1916, when defendant No. 1’s son married the plaintiff, defendant No. 1 and his
son gave the properties to the plaintiff under a mahr-nameh . The plaintiff having sued in 1921 to recover
possession of the properties, defendant No. 2 advanced the claim that the properties were hers. Held, negativing
defendant No. 2’s claim, that defendant No. 1 having been in possession as ostensible owner of the properties with
the implied consent of defendant No. 2, the transfer of 1916 was valid. 74
Attestation as estoppel. —The effect of attestation by a reversioner to a female’s alienation was

considered by the Madras High Court which held that a presumption was raised when an adult having a tangible
interest in the property affected by the deed that his attestation was taken as a proof of his consent to and
knowledge of the correctness of the recitals in the deed and it lay upon the person who contended otherwise to
prove to the contrary. 75
In Raj Lukhee Debia v. Gokool Chunder Chowdhry , 76 the Privy Council refused to affirm that mere attestation
imported concurrence. 77 Attestation of a deed by itself estops a man from denying nothing whatever excepting that
he has witnessed the execution of the deed. It is, of course, possible, as was pointed out by their Lordships in the
case of Banga Chandra v. Jagat Kishore , 78 that an attestation may take place in circumstances which would show
that the witness did in fact know the contents of the document but no such knowledge is to be inferred from the
mere fact of attestation 79 unless it can be established by independent evidence that to the signature was attached
the express condition that it was intended to convey something more than a mere witnessing of the execution and
was meant as involving consent to the transaction. Hence by itself it would neither create an estoppel nor imply
consent. 80
Transactions to which the section extends. —The section extends to every "transfer of property" as
defined in Section 5 of this Act.
Person. —The "person" would include Union or the State Government. 81
"Persons interested in immoveable property". —These words mean full owners or the owner. 82
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Fiduciary owners. —Persons who by reason of incapacity cannot contract as trustees, guardians and
others holding a fiduciary capacity are not within the section.
Immoveable property of insolvent. —The doctrine of ostensible ownership does not apply to transfer
of immoveable property by a person who has been adjudged as an insolvent. 83
Minor owners. —The section does not apply where the owners of the property are minors at the date of
transfer. 84 A minor by reason of inability cannot give consent under the section. 85 The guardian is incapable of
consenting to apparent ownership of transferor. 86 Neither is an infant estopped by the acts and omissions of his
mother and natural guardian. 87 Nor are the adult members of a Mitakshara joint family, including the father of a
minor member, competent to give on behalf of the minor express or implied consent to a transferee of property of
the joint family being the ostensible owner of it, so as to enable a purchaser from him to claim the protection of
Section 41 of the Transfer of Property Act, 1882 .88 But where an infant represents fraudulently or
otherwise that he is of age and thereby induces another to enter into a contract with him, then in an action founded
on the contract the infant is not estopped from setting up infancy as a bar to the action. 1 The onus to prove
minority rests on the party who asserts it. Where a deed is executed by a person who alleged himself to be a major
at the time of execution, a heavy burden rests upon him or his representatives when they set up the defence of
minority. 2
Where the respondent was a minor at the time of the sale in favour of the appellants, he could not be held to have
consented expressly or implied to these transactions. 3 Where on presumption the preemptor did not enter into
possession of the property, the previous owners transferred the property through some third person, the respondent
claimed compensation from the preemptor, it was held that the respondent was minor at the time of sale and so the
benefit of the
Section 41 of the T.P. Act was not available.4
"Ostensible owner". —An ostensible owner is a person who has got incidia of ownership such as title,
possession or entries in records made to show ownership. 5 A person in possession as agent or manager cannot
be treated as owner with the consent of the real owner. 6 A true owner of the property is not bound by the
representation made by the ostensible owner. 7 Ostensible owner is a person who is apparently a full and
unqualified owner of the property. A mortgagee is not. 8 A co-heir is not an ostensible owner. 9 Nor can an
assignee of a mortgagee seek protection of the section as his transfer is not by an ostensible owner but by a
mortgagee. 10 The owner of a property on which charge is created by decree is not an ostensible owner for such a
decree reduces his full ownership to a limited ownership. 11 Similarly, a mortgagor is not an ostensible owner, 12
nor is the purchaser of the equity of redemption. 13 Again, permissive possession such as of a licensee or by a
person in occupation on condition of doing menial work in the family does not confer any title to convey as
ostensible owner. 14
Ostensible owner would include even the transferee from the State Government or the Union Government, as in
certain situations, the Union or the State Government can be held to be real owner and the allottee ostensible being
recorded as such in the revenue record, though he is actually not the owner, by legal fiction, as cancellation is to
relate back to date of allotment. 15
Mere possession of the persons as co-owners of the property does not make them the ostensible owner of the
property. 16 In the case of benami transactions as known in India, the ostensible owner is in possession with the
implied consent of the real owner so that a transfer by him cannot be objected to by the latter. 17 If a property is
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purchased in the name of benamidar and the indicia of ownership are in his hands, the real owner can impeach an
alienation by him on proof that it was made without his acquiescence and the purchaser was aware that he was a
benamidar . 18 For creation of ostensible ownership the real owner must be in some way privy to it. 19 Where both
documentary and oral evidence evinced that the plaintiff by his conduct allowed the world at large to believe that he
has no right in the properties and in fact was not in possession of the property, the transactions reflected in the
revenue records and in registered documents fully supported the ostensible title and possession of the defendant
no. 1, held under the circumstances and guided by the land revenue records, the defendants no. 3 and 4 who had
purchased the land through sale deed from the defendant no. 1 were entitled to the protection of
To attract Section 41,the vendor must be the ostensible owner of the property. When it was not even the case of the
vendee that the vendor was the ostensible owner of the property,
Section 41 of the T.P. Act was not attracted.21
The possession of a manager cannot be treated as sufficient evidence of ostensible ownership with consent,
express or implied, of the real proprietor within the meaning of the section 22 nor a co-sharer managing the property
on behalf of other co-sharers. 23 A manager of a joint Hindu family consisting of some minors alienated without
necessity the ancestral property. The alienee transferred the property to third persons. In a suit by the minors for
setting aside the alienation, it was held that the manager was not an ostensible owner of the property within the
meaning of the section. 24 Neither is a mother an ostensible owner of the property of her minor son, whether
Mahomedan 25 or Hindu, 26 nor can apparent ownership of transferor be created by consent of a minor’s guardian.
27 A purchaser, from a member of a joint Hindu family dealing with it as his own property, is not an ostensible
owner. 28 A co-sharer in occupation of a joint family residence even for a long period is not an ostensible owner. 29
Where the defendant also claimed a right over the suit land on the basis of a saledeed by the ostensible owner, and
the Jamabandi showed the names of all vendors including the ostensible owner, the ostensible owner was unable
to disclose as to how his name was mutated. Held, the defendant was not entitled to the protection of Section 41. 30
In case where a person who has allowed another to occupy the position of an ostensible owner has a limited estate,
the rule of Section 41 applies only during the lifetime of the limited owner and is not available to protect transferees
against the claim of the reversioners. 31
A Hindu widow enters into possession of the husband’s estate by right and not with any express or implied consent
of the reversioners. A transferee from her cannot claim protection under the section. 32 A Hindu widow had
mutation effected in favour of her cousin who in his turn transferred the property to one B who purchased it bona
fide . In a suit by the reversioner it was held that B was not protected by the section as the widow was estopped
from questioning the transfer and as the reversioner did not claim under her he could succeed in the suit. 33 When
a husband who puts his wife in the position of true owner and she deals as such he cannot afterwards rely upon the
benami title. 34 Where the sale has been effected by the father of the minor plaintiff, father of the minor would not be
called an ostensible owner when the sale deed itself recites the name of the true owner. The appellant transferee
was not protected under
Section 41 of the Transfer of Property Act .35 Where property is owned by male and female members,
the latter of whom are purdanashin , the former are not ostensible owners. 36 But a sister’s claim was negatived
when on the death of her mother, her brother Habib took exclusive possession of some immoveable property
belonging to the mother and had his name alone entered in the khewat . Some years after in 1896, Habib
mortgaged the property, but afterwards redeemed it. In 1908, and again in 1911, Habib mortgaged the property
afresh to the son of the former mortgagee but it was not till the mortgagee purchased the property in execution of
his decree that Habib’s sister, although living in the same place, sued to set aside the mortgage and recover her
share by inheritance. 37 The position is different in the case of a Hindu family where the manager or the widow has
a certain power of alienation. Hence, if a certain property is admittedly joint family property, a purchaser from one of
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the members of the family dealing with it as his own is not an ostensible owner. 38 But where a person has
deliberately got the name of another on the record as owner of half of the property, he cannot subsequently plead
that he was the real owner of the whole. 39 And where a Hindu widow allowed her husband’s cousin to appeal and
deal with the house as an ostensible owner, in consequence whereof the transferee was induced to purchase, it
was held that he was a bona fide purchaser. 40 So also where certain properties were given as mahr by defendant
No. 1 to defendant No. 2 at the time of their marriage in 1908 but the transaction was not evidenced by any writing
and the properties continued as before in the name and possession of defendant No. 1, the latter was regarded as
ostensible owner. 41
Where co-sharers in a property entrust the management of the property to one cosharer, it does not connote that
they hold him as owner of the property. 42
A Karnavan of a marumakkathayam tarward or illom alienates torwad or illom property standing in his name, cannot
be said to be ostensible owner of the property standing in his name. 43
"Voidable". —The transaction is voidable, not void, at the instance of the real owner. It has been
construed as not necessarily voidable in its entirety and that the section is applicable to transactions where a part
and not the whole is voidable, 44 a construction doubted by the Bombay 45 and Allahabad 46 High Courts.
Real owner’s remedy against transferee. —A transfer in the circumstances mentioned in the section
is not voidable on the ground that the transferor was not authorised to make it. What the section enacts is that a
transfer by an ostensible owner where the transferee does not take reasonable care and act in good faith is
voidable at the instance of the real owner. An agreement enforceable by law is a contract. 47 An agreement which
is enforceable by law at the option of one or more parties thereto but not at the option of the other or others is a
voidable contract. 48 The remedy of the real owner is to sue for rescission of the contract and the Court may order
the transferee to pay to the real owner rents and profits, if any, received by him while in possession. 49 On
adjudging the rescission of a contract the Court may require the party to whom such relief is granted to make any
compensation to the other which justice may require. 50 Again,
Section 86 of the Indian Trusts Act (II of 1882) enacts that where property is transferred in pursuance of
a contract which is liable to rescission or is induced by fraud or mistake the transferee must on receiving notice to
that effect hold the property for the benefit of the transferor subject to repayment by the latter of the consideration
actually paid. Section 96 of the same Act saves the rights of transferees in good faith for consideration, while
Section 95 of the same Act declares that the transferee’s duties, liabilities and disabilities are similar to those of a
trustee of the property for a person for whose benefit he holds it.
Where a real owner of the property allows another person to hold himself out as the owner of the property, and a
third person purchases that property for value from the apparent owner in the belief that he was the real owner, the
real owner is not entitled to recover upon his secret title if he fails to show that the purchaser had direct notice, or
something which amounted to constructive notice of the real title or that there existed circumstances which ought to
have put the purchaser upon an enquiry which if prosecuted properly would have led to a discovery of the real title.
51
Right of real owner against the ostensible owner. —The section is silent as to the real owner’s
remedy against the ostensible owner. The former may file a declaratory suit under
Section 42 of the Specific Relief Act , I of 1877, so long as the ostensible owner has not parted with the
possession and has not conveyed the property to a purchaser as contemplated by the section. In such a case the
Court would order its restoration to the real owner. But in case the property has passed from the hands of the
ostensible owner to that of a purchaser of the character as mentioned in the proviso to the section, the real owner’s
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remedy against the ostensible owner would lie in damages. Reference may be made to
Sections 82 and
95 of the
Indian Trusts Act , II of 1882.
"To make it". —This expression refers to the particular transfer which must include the entirety of the
interest purported to be transferred by the transaction. 52
"Reasonable Care" (Proviso). —The proviso which is the second condition of the section is to the
effect that the transferee from an ostensible owner can defeat the real owner only if, after taking reasonable care to
ascertain that the transferor had power to make the transfer, he has acted in good faith. 53 Reasonable care is such
care as a person of ordinary prudence would take in the absence of some specific circumstances which would have
been the starting point of an inquiry which might be expected to lead to some result. 54 It has been interpreted to
mean such care as an ordinary man of business or a person of ordinary prudence would take. 55 Each case must
depend upon its own particular circumstances. 56
The test is whether the transferee acted like a reasonable man of business and with ordinary prudence. It is not a
pure question of fact and can be reviewed in second appeal. 57 A transferee cannot be said to have acted with
reasonable where he took sale of the property believing the statement of the transferor, that the real owner is
unheard of for a long time and he is now the real owner of the property. 58 A bona fide purchaser is one who makes
prudent enquiry about the ownership and title. Where admittedly no such enquiry is made, no reasonable care is
exercised to ascertain the title of the recorded owners, the purchaser would not be a bona fide purchaser. 59 Where
the first respondent had not acted in good faith and had not taken reasonable care to ascertain that second
respondent had power to execute sale deed on relevant date, Section 41 of Act of 1882 would not save such sale
deed. 60 Where the evidence on record clearly demonstrated that apart from the lack of plea, even otherwise there
was no material to suggest that the transferee appellant had taken reasonable care to ascertain that the transferor
had power to sell, the transferee appellant was held not entitled to the benefit of
Section 41 of the T.P. Act .61 Where the subsequent vendor did not depose before the Court that he
made any enquiry from the village of the vendor where the disputed land is situated, the subsequent vendee cannot
be said to be bona fide purchaser. 62
Merely because there were mutation entries in favour of the vendor, that would not make the transferee a bona fide
purchaser unless he had tried to ascertain the title of the vendor. 63 Where the name of one S was entered in the
revenue records with the consent of the person interested in immovable property, the entry persisted for eleven
years, and on the basis of the said entry the petitioner purchased the disputed land, held S was the ostensible
owner of the immovable property with the consent of the person interested in the immovable property as such the
transfer was valid. 64 Where the person interested in immovable property did not take steps for getting his or her
name recorded in the revenue records before sale deed was executed by the ostensible owner, held as the
ostensible owner was impliedly permitted to remain owner of the disputed property, the sale deed executed by the
ostensible owner was valid. 65 Where the appellants did not make necessary enquiries which were necessary for
them after going through the contents of mutation, the appellants could not be held bona fide purchasers. 66
Where a person merely looks the revenue records and does not make any inquiry he cannot be said where acted
with reasonable care. 67 In the case given below, the land had been transferred by the State Government in favour
of the appellant, but the appellant had not taken any care to ascertain that the State Government was either the
owner or had the power to transfer the land and that he had acted in good faith, on the contrary, it was brought on
record that the appellant had taken the land on lease from the respondent in the year 1989-90 which clearly
demonstrated that he knew that the respondent was the owner of the land, even in the Zamabandi, wherein the
State Government had been shown to be the owner, the possession of the appellant in column No. 5 had been
shown to be through the respondent-Panchayat Samiti. In spite of knowing all these facts the appellant did not take
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care to ascertain the title of his vendor. In these circumstances the appellant was not entitled to the protection
provided under
Where an inquiry would have revealed that the transfer was not the sole proprietor of the property transferred but
no such enquiry was made, transferee was held not entitled to benefit of Section 41. 69 Where the mortgagee knew
that there was dispute about the property mortgaged, he was held not protected by Section 41. 70 Where the
transferee did not make any enquiry about the other co-heirs of the deceased before taking purchase from one heir,
he was held not entitled to protection of Section 41. 71
Where a transferee purchases property from a Muslim co-owner who asserts his vague possessory title without
making further inquiry, he cannot be said to have acted as a man of ordinary prudence. 72 A mere possession of
one co-owner cannot amount to the flaunting of an ostensible title against another. 73
A transferee who has not made enquiry about the title of the transferor to the property is not entitled to benefit of
Section 41. 74 It would not be enough to assert generally that enquiries should be made or that a prudent man
would make enquiries : some specific circumstances should be pointed out as the starting point of an inquiry which
might be expected to lead to some result. 75
Where the appellant contended that the vendor was an ostensible owner as her name was recorded in the
Municipal property register, but no enquiry was made from other coowners, the Municipal record is not evidence of
title. The appellant ought to have ascertained that the transferor had the power to make transfer, and he acted in
good faith, the property was the dwelling house of the plaintiff and the defendants no. 1 to 5 who were sisters. Held,
the sale deed in respect of 1/5th share in the house was valid. 76
What the section requires is reasonable care not generally with regard to every aspect of the transaction but merely
for the purpose of ascertaining that the transferor had power to make the transfer. 77 The ordinary standard of
diligence is calling for the title-deeds and examining them. If the documents disclosed indicate anything to put the
transferee on notice or inquiry leading to the existence of knowledge or any information in the title then the matter
might conceivably be otherwise. 78 Proof of inquiry by purchaser is an essential condition enjoined before seeking
protection under the section. 79 When there are certain avenues of inquiry open the transferee who refuses or omits
to avail himself of them is not entitled to relief. 80 Casual inquiries of irresponsible persons as tenants and
neighbours will not protect him. 81 A person who purchased from a Muslim co-owner, accepting without further
examination his vague claim to possessory title, and the rightful owner of this interest neither expressly permitted
such ostensible title to be flaunted, nor impliedly consented to it, cannot claim the protection of the Court to enforce
his insubstantial title as against the true owner. The mere possession of one coowner cannot amount to the
flaunting of an ostensible title against another. 82
The following remarks of Lindley, L.J., in Bailey v. Barnes , 83 indicate what is meant by "reasonable care" in the
section. "A purchaser of property is under no legal obligation to investigate his vendor’s title. But in dealing with real
property, as in other matters of business, regard is had to the usual course of business; and a purchaser who
wilfully departs from it in order to avoid acquiring a knowledge of his vendor’s title is not allowed to derive any
advantage from his wilful ignorance of defects which would have come to his knowledge if he had transacted his
business in the ordinary way." A person seeking the protection of the section has to satisfy the fulfilment of two
conditions, first, that a particular person was the ostensible owner of the property with the consent, express or
implied, of the person who was the real owner or was interested in the immoveable property, and secondly, to
establish the further fact that the transferee had taken care to inquire about the power of the transferor before
accepting the transfer. 84 A person cannot be said to be an ostensible owner with the consent of the true owner
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within the meaning of the section on the basis of an entry in his favour in a mutation register when the claim to have
his name entered in the register had been disputed by the true owner, and the entry was made because he was in
possession at the time, which facts the transferee could have discovered by inquiries made. 85 In such cases
revenue records are no evidence of title. 86 Mere inspection of khewat is not sufficient inquiry in the case of an
auction purchaser when the judgment debtor is a Mahomedan. 87 Nor the paper title disclosed in the sale deed, it
being the transferee’s duty to make inquiries of the defendant in actual possession as to her title. 88 It has been
held by the Judicial Committee that mutation of names by itself created no proprietary interest. 89
Mere verification in the revenue or municipal records that the property was registered in the name of the ostensible
owner may not suffice where suspicious circumstances exist to put the purchaser on further enquiry. 90 In most
cases coming from Mahomedan families, the names of the sisters and mother, who are also heirs of a deceased
Mahomedan, are never entered in the khewat . It cannot be held, therefore, the Mahomedan sons, simply because
their names alone are down in the khewat , are entitled to give a good title to the transferee and the mother and
sisters shall be precluded from claiming their shares. 91 Entry in a revenue register is not always enough to induce
a person to think that the person whose name is entered was the proprietor and had a right to sell the property
which was entered in his name. 92 Plaintiff, the owner of a house, went on a pilgrimage, leaving the property in
charge of an agent, who had his name entered in the municipal register and thereafter sold the property as his own.
It was held that the vendor was not an ostensible owner. 93 On a suit by collateral heirs for recovery of possession
of the house, a defendant mortgagee not having made proper inquiries as to the mortgagor’s title, was held not
entitled to protection. 94 In case of coparcenary property standing in the name of the eldest member, a lender
making no inquiry, and there being nothing to suggest that representation was made that no other member was in
existence, the section will not apply so as to deprive a coparcener of his rights to the property. 95
Where the intestate heirs of one B , allowed A to represent to the developers that he (A) was the owner of the suit
premises, the inaction on the part of the intestate heirs of B was established, it was held that the developer was the
bona fide purchaser for value, protected by Section 41. 96
Where a person in possession of the property mortgaged was recorded as owner and held the title-deeds of the
property, a mortgagee from him was protected 97 and so also where the person in possession was not only
recorded as owner but had mortgaged the property 20 years ago to the father of the subsequent mortgagee who
had satisfied himself that his name was still in the khewat . 98 The finding as to absence of reasonable care and
good faith is a finding of fact. 99 Raking out the old records of the municipality or of the Police Department cannot
be regarded as a discharge of the obligation under the section as to come within "reasonable care" and "good
faith". 1
Where the transfer is made with the consent of the real owner, the case would fall within the purview of
Section 115, Indian Evidence Act, 1872 , and in such a case proviso to Section 41 would be rendered
nugatory, the conditions required by the proviso to Section 41 need not be satisfied.2
Sale transactions are known to the inhabitants of a small village. Where subsequent purchasers are residents of a
small village, they are presumed to have knowledge of agreement of sale executed in favour of one party of the
same village. 3
Good faith of transferee. —To claim benefit as bona fide transferee, a transferee must have made an
enquiry. 4 The transferee would be protected only if he has acted in good faith after taking reasonable care to
ascertain that the transferor has power to make the transfer. The transferee who willfully shuts his eyes and takes
the transfer without any inquiry is no protected. The transferee is also required to show that he had purchased the
property after taking care to ascertain that the transferor had power to make the transfer. What is reasonable care
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depends upon the facts and circumstances of each case and no hard and fast rules can be laid down. 5 The onus is
on the transferee to show that he acted in good faith. 6 The duty of transferee is to act in good faith and to ascertain
the authority of ostensible owner to transfer it and not to ascertain the nature of the property sought to be
transferred. 7 Where another person is in possession of the property purchased, and the plaintiff was aware of it,
but does not make further inquiry as to how and why the transferor was transferring the property which was not in
his possession, the plaintiff cannot be said to have acted in good faith taking reasonable care to ascertain the real
owner, and is not protected by Section 41. 8
Protection of Section 41 cannot be claimed by a person who did not take reasonable care to ascertain that the
transferor had power to make transfer, and had not acted in good faith. 9
Transferee’s knowledge of the transferor’s want of title vitiates the transfer. 10 Where a Court finds that the rights of
one of two innocent parties must be sacrificed, it is entitled to consider whether anything in the conduct of the party
who comes into Court and seeks relief has debarred him from asserting his right. 11 Only those persons are entitled
to the benefit of the section who have not been able to discover the true owner in spite of inquiries made and who in
full belief that the person making the transfer is the real owner take the transfer from him. 12 A transfer of
immoveable property by an ostensible owner does not pass title to the transferee when he does not make inquiries
and is not acting in good faith. 13 A party wishing to take advantage of the section must be able to show that he had
made an inquiry into the title of the ostensible owner. 14 In order to be a bona fide transferee it is not necessary for
him to go behind the revenue records and make further inquiry unless circumstances create suspicion about the
title. 15
Where the purchaser does not make proper inquiry before taking sale, the mere fact that the name of the purchaser
as recorded in the revnue papers at the relevant time does not make him bona fide purchaser so as to entitle him
the benefit of Section 41. 16 Where there are registered deeds of sale it is not sufficient compliance of the
provisions of Section 41 if a person merely looks at the revenue records and does not go further. 17
A transferee who does not make any inquiry into the title of the transferor cannot be said to have taken the
reasonable care required by Section 41 .The onus is on the transferee to show that he acted in good faith. 18
Where the transferor was not in possession of the property at the time of the purchase and some third person was
in possession but the transferee did not make any enquiry as to how the transferor was transferring the property
when he was not in possession of the property, he cannot be said to have acted in good faith taking reasonable
care to ascertain the real owner. 19
Where the subsequent transferee had knowledge of the earlier agreement, had even delivered possession of the
part of the property, he cannot be held to be bona fide purchaser of the property without notice of the earlier
agreement. 20
Where a little inquiry by the appellant transferee would have revealed that the khasra numbers in dispute had been
allotted to the plaintiff, the joint property had been partitioned by metes and bound between the co-sharers, and the
vendors of the plaintiffs had no right to transfer the suit property in favour of the appellants, the latter were held not
bona fide purchasers entitled to benefit of Section 41. 21
Where in spite of the stay order passed by the appellate court and communicated to the trial court, the decree was
executed by the trial court and as such the landlord got possession of the suit property by mistake of the court,
therefore the restitution in favour of the tenant was allowed by the court and during pendency of revision before the
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High Court, the landlord inducted a new tenant in the premises, as the delivery of the possession of the premises to
the landlord was illegal, the question of the plaintiff petitioner being, in such circumstances, to be a bona fide
transferee was out of question. 22 Where the transferee did not ascertain/inquire about the power of the transferor,
he cannot be deemed to be a bona fide transferee and is not entitled to the benefit/protection of Section 41. 23
Where the appellant was a pendente lite transferee and had purchased the property in breach of an interim
injunction, he was not entitled to the protection of Section 41. 24
Where the evidence showed that the vender was not in possession of the property, but the person for whom the
benami purchase was being made was in possession of the property, it was held that the vendee did not make
reasonable inquiry as required by Section 41, and was not entitled to the benefit of Section 41. 25 Where transferor
was never in possession and someone else was in possession even at the time of the execution of sale deed, good
faith or reasonable care could not be inferred. 26 When there was an entry of lease in Register making reference to
an award then it was incumbent upon a bona fide inquirer to make all inquiries in relation to award. 27 Where the
red entry in the Jamamandi register showed that the land could not be transferred to a non-scheduled caste for a
period of 20 years in view of statute bar, and yet the vendee purchased the land, he would not have acted in good
faith. 28
Before one can be considered to be an ostensible owner, it must be shown that it was with the consent express or
implied of the true owner that he was enabled to represent himself as the owner of the property to a bona fide
purchaser for value without notice. If it is found that the so-called ostensible owner by any fraudulent means created
documents without the knowledge of the real owner and represented himself as the owner of the property, Section
41 of the Transfer of Property will not protect the interest of a transferee from such a person and it must be held that
the ostensible ownership of the property is not created by an act of the real owner or with his consent express or
implied. Indeed such a person cannot claim himself to be an ostensible owner. 29
Section 41, incorporates a rule akin to the rule of estoppel whereby the real owner, who by reason of his conduct or
express or implied consent was responsible for the creation of an ostensible ownership cannot be permitted to set
up his real ownership to defeat the right of a bona fide purchaser acting in good faith and who despite reasonable
enquires could not discover such real ownership. It is, therefore, the conduct of the real owner which gives rise to
an enquiry in favour of a bona fide purchaser acting in good faith. Section 41 is a statutory recognition of this
equitable rule. 30
Where the transferee has not examined the relevant documents before making purchase with regard to title of
transferor, he is not entitled to protection under Section 41. 31 Where there was no proof adduced by the transferee
to establish good faith or that necessary enquiries were made before entering into the transaction of sales,
protection under
Section 41, T.P. Act was held not available.32 Where the plaintiffs daughters and widow of the deceased
claimed suit property left by the deceased on the basis of succession, the defendants brothers of the deceased
contended that they are bona fide transferees, the mutation orders in respect of the property were in their favour,
the mutation orders were null and void as it overlooked the interest of the widow and daughters of the deceased,
the defendants were from the same village and as such must be aware of the deceassed’s share in the property,
the defendants were not entitled to the benefit of Section 41. 33
To qualify protection under the section alienees have to prove not only that the sales in their favour were supported
by consideration but to go further and establish by requisite evidence that in dealing with alienor, they had acted in
good faith after ascertaining that he had the power to sell the property. 34 Mere proof of passing of consideration
does not entitle a person protection extended by
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Where the transferee did not raise the plea of bona fide transferee for good faith in written statement, did not press
the plea before the trial Court, nor even raised in the first appeal, he was not allowed to raise the plea for the first
time in second appeal. 36
Once the properties are found in the possession of third person at the time of sale, the transferee is under
obligation to take reasonable care to ascertain as to how and why the transferor was transferring the properties of
which he was not in possession. 37 By virtue of the statutory definition, transferee must be deemed to have notice
that the real title was in the person in actual possession. If with such statutory requirement the plaintiff did not make
enquiry as to the factum of possession, he could not be said to have acted in good faith taking reasonable care to
ascertain the real owner. 38 The mere examination of the documents of title is not sufficient to hold that the person
making purchase has acted in good faith taking reasonable care to ascertain the real owner. 39 The care required of
a transferee acting in good faith, must be the kind of care, which an ordinary man of business is expected to make.
If the ostensible owner is in possession of the property and he also produces the title deed, the transferee cannot
be expected to make any searching inquiry in the absence of any ground for suspicion that the transferor may not
be the real owner. The standard in nature of the necessary inquiry by the transferee must therefore vary according
to the different circumstances of each case. 40
Where the transferor defendant was not the ostensible owner as the land was still standing in the name of the
deceased, it was the duty of the defendant transferee to ascertain as to who were the heirs left by the deceased.
Where the defendant transferee did not make any enquiry, the defendant transferee was held not protected under
Section 41 of the T.P. Act .41 Where the defendant does not enter in the witness box to assert the factum
of knowledge and search made by him, the Court would drawn adverse inference against him and hold that he is
not a bona fide purchaser for value. 42
Where the agreement was for selling the property for Rs. 350, 000/, but subsequently it was sold for a petty sum of
Rs. 61000/, which was sham and nominal consideration, the subsequent purchaser also did not make bona fide
enquiries in the area where the parties were residing and the property was located, the plea of the subsequent
purchasers that they were bona fide purchasers, for value and without notice was found not tenable. 43 Where there
was a registered agreement for sale, the subsequent transferee neither made enquiries nor ascertained fact about
the same, he would not be allowed to say that he did not have notice of the original contract, the benefit of
Section 41, T.P. Act could not extended to him.44
Where the defendants claimed sale of land in their favour by defendants by earlier agreement, it was alleged that
the earnest money alleged to have been paid by the defendants as per agreement was spread over in -3 sale
deeds of different portions of suit land, no amount was paid before the Sub-Registrar under such sale deeds, there
was also no reference in the sale deeds abut the agreement in favour of the defendants it was held that the
agreement for sale was ante-dated, fabricated and purchasers were not bona fide purchasers. 45 Where the
property is transferred during the pendency of the litigation and the transferee does not make any inquiry about the
genuineness of the transferor’s title, by giving public notice etc. , he is not entitled to the benefit of Section 41. 46
Where a person obtained possession under an appelable decree, the benefit of Section 41 was held not available.
47
Where the defendant no. 1 did not make any enquiry, if he had made any inquiry he would have found that the
defendant no. 2 transferor was not the owner of the property, and was merely a manager of the plaintiff being her
son-in-law, and there was no document of tile to the property in favour of the defendant 2, as he claimed to have
derived title from the plaintiff orally, it was held that the defendant no. 1 failed to make reasonable enquiries, and
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thus he was not entitled to any benefit under Section 41. 48 Where the transferee was aware of the sale deed in
favour of another person but he did not make any enquiry as to the vendor’s right to transfer the property, he was
held not entitled to benefit of Section 41. 49
Once the property is declared to be Wakf property, the transferee cannot claim to be bona fide transferee from the
Wakif and he cannot invoke Section 41. 50 Where the Shebait makes a mortgage of the endowed property, the
transferee should be on its guard to find out the validity of the transaction and therefore the suit by deity for setting
aside the mortgage and asking for possession would not be barred by
Where admittedly title deed executed in favour of vendors was not delivered to the vendee, the claim of the vendee
of bona fide purchaser failed. 52
Mere inspection of record of rights. —A mere inspection of record of rights is not a sufficiently
reasonable inquiry and a transferee who has acted only on such records as evidence of the title of his transferor,
cannot be said to have acted in good faith and would not be entitled to the benefit of Section 41. 53
Revenue records entry. —Where the vendors have been in possession for a long time, and were
shown as owners in the revenue record, and the vendees had purchased the land after verifying their title from the
revenue records, they would be protected on being bona fide purchasers. 54
Mutation. —Where the plaintiff’s father was also the bona fide purchaser of the suit land because when
he purchased the suit land, inheritance mutation had already been sanctioned in favour of the vendor alone. The
plaintiff’s father purchased the land from the vendor. He was, therefore, proved to be the bona fide purchaser of the
suit land for valuable consideration. The fact that the mutation was reviewed subsequently was held immaterial. 55
Inspection of records in the registration office. —In the state of Punjab when oral transfers were
permitted by law, inspection of records in the registration office was not sine qua non while granting protection to
the alienee under Section 41 of the Act. Of course, the facts and circumstances of each case have to be looked into
in order to determine whether reliance on the revenue record without inspecting the record in the registration office
would afford protection to a transferee under Section 41 of the Act. 56 As the property had been mutated in the
names of the vendors, there were no circumstances which would had impelled the transferees to go beyond the
revenue records, inspection of the office of record of sub-registrar was not found necessary and the transferees
were held entitled to the benefit of
Where the defendant transferee has not made any enquiry from the office of the Sub- Registrar about the prior sale,
the Court records finding that the transferee has not taken any care or due care and did not actin good faith while
taking sale deed, the defendant transferee would not be entitled to protection of
Inspection of municipal records. —Merely inspecting the municipal records and property register of
the Municipal Board does not entitle a transferee to the benefit of
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Plea of bona fide purchaser-If can be allowed in second appeal. —Where the
plea of bona fide purchaser was not raised before the trial Court, nor before the first appellate Court it cannot be
allowed to be raised for the first time in second appeal. 60
Where purchaser aware of the defect in vendor’s title. —Where at the time of the purchase, the
purchaser is aware of the defect in vendor’s title, the purchase cannot be said to be made in good faith so as to
attract Section 41. 61
Where the plaintiff transferee knew fully well that one J and the defendant, her grandson, were the owners of the
land, the transferor had no title over the suit land. Held Section 43 was not attracted in the case, and the plaintiff
vendee was not entitled to the benefit of Sections 41 and 43. The consent letter executed by the defendant did not
convey title nor created any interest in the suit land to the plaintiff. 62
Misconception of a right in law does not render a transferee " bona fide ". —
The degradation of a daughter under the Hindu Law on account of incontinence does not put an end to her right to
inherit the stridhan property of her mother so that a conveyance by the son of such property confers no title on the
purchaser who is under a misconception as to the daughter’s right, and is therefore not protected by the section. 63
No protection will be afforded to a transferee whose title depended on a deed to which the ostensible owner was a
party and which amounted to a fraud on the creditor of the real owner. The transferee, being a relative of the
vendors, having lands adjoining the lands in suit, took a sale deed within a week of the death of one of the vendors
from the benamidar , that is, ostensible owner, he was held not to have proved his own good faith and therefore
was disentitled to the protection of the section. 64
Knowledge of family property is a bar to relief. —A creditor who advanced money to the ostensible
owner without inquiring into the title was refused protection as it was found that he resided in the same locality as
the ostensible owner and had been lending money to the family for a long time and could not therefore claim to a
bona fide transferee. 65 But a purchaser from a Hindu wife whose husband misrepresented that the property
belonged to her is a transferee in good faith. 66 So also an effectual concealment of the real owner’s identity caused
by misrepresentation would protect the transferee. 67 Nor can the true owner recover on his secret title after he has
stood by and permitted his undivided brother to sue for possession from the transferee when there was nothing to
put the latter on inquiry as to who was the real owner, 68 for although a benamidar can sue in his own name for the
recovery of immoveable property, it must be held that such a suit was with the consent and approval of the true
owner against whom any adverse decision on title would operate as res judicata . 69 When there is no evidence to
prove that a mortgagee took the mortgage from the ostensible owner after taking reasonable care to ascertain that
the transferor had power to make the transfer and that he acted in good faith, he cannot claim protection. 70 But
when there was nothing to put the mortgagee on inquiry as to the real title the principle of the section was applied.
71 When during the husband’s absence on pilgrimage the wife sold a piece of land which had before her husband’s
departure been mortgaged by her, the purchaser who paid off the mortgage having by proper inquiries satisfied
himself that the wife was owner, it was held that the husband could not recover the land nor was he allowed to
redeem the mortgage. 72 The duty to make inquiry does not bind a purchaser for value to inquire whether the wife
of the alienor is enceinte . 73
Burden of proof. —It is not enough for the party seeking to invalidate a sale to show that proper inquiry
was not made. The onus lies on him to prove that there was something to invoke an inquiry and what that inquiry
would have revealed. 74 It is when the preliminary burden is discharged by the party attempting to invalidate the
sale that proper inquiry was not made that the burden shifts on the transferee of proving that he took reasonable
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care to inquire into the title. 75 Proof that a transferee exercised reasonable care and acted in good faith is not
enough if the transferor be not the ostensible owner of the immoveable property with the consent, express or
implied, of the person interested. 76 It is otherwise when there is nothing in the transaction to require the transferee
to make a further inquiry as to the real title to the property beyond what appeared from the entries in the revenue
records. 77 It is for the transferee to show that he had taken care to ascertain that the transferor had the power to
make the transfer and he had acted in good faith. 78 Where agreement for sale is a registered document, it is
incumbent upon the transferee to make enquiry from the office of the Sub-Registrar that the transferee had the
power to make transfer, where he has not made any such inquiry even has not appeared as witness before the
Court, he would not be entitled to the benefit of Section 41. 79
In order that this section applies, four essential conditions are required to be satisfied :
(a) the transferor is the ostensible owner;
(b) he is so by the consent, express or implied of the real owner;
(c) the transfer is for consideration; and

(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to
transfer. 80 If any one of these elements be wanting, the transferee is not entitled to the benefit of the
section. 81 Mere proof of consideration and good faith alone are not sufficient. 82
It is well settled that it is not the duty of the vendee to ascertain the nature of the property. He/she has to only
ascertain the authority of the ostensible owner to transfer the property and that such owner acted in good faith. 83
The burden of proving the fact that one is a bona fide purchaser for value without notice is on the person asserting
the same. 84 A person having a prior agreement of sale in his favour by the owner held transferee in good faith for
consideration and without notice, protected by
Section 41, T.P. Act .85 If a person has an agreement for sale in his favour earlier in point of time it
supports the plea of bona fide purchaser. 86 Where a person purchases property during the pendency of the suit,
he cannot be said to be a bona fide purchaser. 87 Where the vendor was the last owner of the property recorded in
revenue records, the transferee was held bona fide purchaser for consideration. 88 Where the vendee has not
inspected the index register of immovable property maintained in Registrar Office, he is not entitled to protection of
Section 41. 89 The question of applicability of Section 41 must be clearly pleaded and strictly proved. 90
Duty lies on the transferee not to enquire about value of the property but authority of the ostensible owner to
transfer. 91
Sale deed by power of attorney holder. — Where power of attorney holder on the basis of the power
given by the real owners executed sale deed in defendant’s favour, and the defendants had taken the sale-deed in
good faith, the owners of the land did not take up the case that they did not agree to the sale deed or that the
attorney had acted arbitrarily, the benefit of
Section 41 of the T.P. Act was available to the defendant and the plaintiff’s suit for injunction was barred
by the provisions of
Auction sale. —According to the definition of Section 5 of the Act, there must be some person to
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convey. In the case of an auction no person conveys. It is, in fact, a transfer by law. Section 41 relates to transfer by
ostensible owner, and therefore the case of auction purchaser cannot come under Section 41. 93
It is well settled that where a person sells property of which he is not the owner but of which he afterwards becomes
the owner, he is bound to make good the sale to the purchaser out of his subsequently acquired interest. 94
It is a equally well settled that the doctrine does not apply to a sale when made by or through Court because of its
very nature, it being involuntary from the sufferer’s angle. It is also well settled that neither the provisions of Section
41 nor that of Section 43 of the Act are available for the benefit of the auction of purchaser, for these provisions
come to the rescue of transferees from ostensible owners or of transferees who purchase property in good faith
from un-authorized persons and who subsequently acquire interest in the property transferred. These two
provisions get enlarged in voluntary transfers and not in involuntary transfers, like auction sales. There is no
question of Court ever playing the role of an ostensible owner or a representative owner of the property when
selling, so as to attract the provisions of Section 41 or 43 of the Act. 95
Revenue sales. —The section does not apply to revenue sales. 96
Civil Procedure Code, 1908, Sec tion 66 , old Section 317. —This section lays down the rule that if
the property is brought to sale in a court auction a suit cannot be instituted on the ground that the defendant was
only a benamidar for the plaintiff. 97 This rule extends to the mortgagee of the purchaser. 98 The provisions of
Section 82 of the Indian Trusts Act (II of 1882) do not apply to this section.
Conflict between Sections 41 and 52. — Sections 41 and 52 are mutually exclusive. The estoppel
arising under Section 41 cannot be such as to override the imperative provisions of Section 52. 1
This section and Section 53A. —Whereas under Section 41, the transfer is only an ostensible owner,
but under Section 53A he is really equitable owner whose possession is as strong as the legal owner’s in so far as
he wants to defend his title. 2
Distinction between
Section 115 of the Indian Evidence Act (I of 1872) and Section 41.—An analysis of the two
sections would reveal the obvious distinctions between the application of the ordinary principles of estoppel
enunciated in
Section 115 of the Evidence Act which is a rule of proof and the application of the principles to which
effect has been given in this section which is a statutory qualification and restriction of the general law of estoppel
contained in the
Indian Evidence Act, 1872 .
Under
Section 115, Indian Evidence Act, 1872 it is necessary that the party sought to be estopped should have
intended that the party pleading estoppel shouldact on his representation, but under
Section 41 of the T.P. Act it is not required that the transferee should take a transfer of the property.3
Page 20 of 59
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Section 41 imposes upon the purchaser of immoveable property the duty of exercising reasonable care and
diligence. The Privy Council in Sarat Chunder Dey v. Gopal Chunder Laha , 4 while dealing with title as between
rival purchasers supported by an estoppel affecting the assignee of the person estopped, observed that the law laid
down in Section 115 does not differ from the English Law on that subject and the general principles stated in
Cairncross v. Lorimer . 5 In that case a widow had held benami , from her husband during his life, property as to
which he had executed a hibanama in her favour. After his death she mortgaged the property, her son representing
her in the transaction. After her death, in a suit between rival purchasers of part of the same property comprised in
the hibanama and in the mortgage, the plaintiff derived his title from the son, having purchased his inherited share
of the estate, while the defendants relied on a purchaser at a sale in execution of a decree obtained by the
mortgagee. Held, that
Section 115 of the Indian Evidence Act, 1872 , was applicable. The son had represented that the hiba
gave a right to his mother to mortgage, and consequently neither he nor his representative in estate could be
allowed to deny the truth of this representation, intentionally made on his part, which also had been acted on by the
mortgagee; and it made no difference that the son had not had a fraudulent intention. As a result of the estoppel
upon the son, any purchaser of the mortgagee’s interest, at a sale regularly carried out, would have acquired a valid
title to the property although such purchaser might have been fully aware of all the circumstances. 6
Mesne profits. —In Angammal v. Venkata , 7 it was held that the purchaser was not entitled to
protection under the section, and the plaintiffs were awarded mesne profits at the rate of Rs. 20 per month for three
years prior to the plaint and from date of plaint till delivery of possession. Mesne profits can be claimed only against
a person who is in actual possession. But a claim for them beyond three years at the date of the suit cannot be
sustained as the same would be barred by limitation. 8
Subsequent purchasers. —The section is not limited to purchasers from ostensible owners but
includes subsequent purchasers, and it may safely be maintained that even if one of such purchasers had some
sort of constructive notice, the defendant who is the last purchaser cannot be dislodged from his position as bona
fide purchaser for value without notice without proof of circumstances bringing such notice home to him. 9
Voluntary transfers. —Consideration being an essential element of the section transfers which are
without consideration are not within the section.
Involuntary transfer. —The section does not apply to a transfer made in invitum by an order of the
Court under which the judgment debtor himself does not join in the actual transfer. Under the section it is the
ostensible owner who is the transferor and not somebody else. 10
Fractional interest. —The power to make the transfer by ostensible owner may be limited to a portion
of the property, in which event the principle on which the rule is based would be applicable to such part of the
property to which the power of transfer does not relate. 11 But this has been doubted by the Allahabad High Court.
12 Involving as it does the contention whether a Court could split up the contents of a document relating to a
transaction regarding immoveable property in order to hold that one part of it was genuine while the other part was
benami , MACLEOD, C.J., while refusing to give effect to such a contention in the circumstances of that case, said,
" Benami transactions are generally effected to conceal some fraud, or in order to support some object of a
discreditable nature. But though the Courts have in the past recognized that the ostensible owner in a benami
transaction can be ordered to restore the property to its original owner, I would not be willing to extend that doctrine
and to hold that a transaction can be partly genuine and partly unreal, unless there are very strong reasons for
obliging the Court to come to such a conclusion". 13
Page 21 of 59
S .41 (A)
Pleadings and issues. —It is well settled that the success or failure of a plea under Section 41
depends on findings of facts which must be alleged in the pleadings. Unless a party pleads facts to make out a case
under this section, the other party is taken by surprise, inasmuch as he is unable to adduce any evidence to
demolish such a plea. 14 The appliability of Section 41 should be specifically pleaded and strictly proved. 15 The
foundation has to be laid in order to avail the protection under Section 41. 16 It is not sufficient for a purhaser
alleging himself to be a bona fide purchaser for value without notice to plead simply that he is a purchaser for value;
he must also go on to show that he is a purchaser for value bona fide and without notice. It is necessary that he
must specifically plead that he is a bona fide purchaser for value without notice in his plaint or written statement, as
the case may be. If he does not plead all that, he will not be allowed at the hearing to go in evidence on that point.
17 In a more recent case, it was held that under the section it was necessary to prove not merely consideration but
also good faith and due inquiry. In the absence of such pleadings or issues these questions cannot be raised in
second appeal. 18 Where the defendant has not taken the plea of ostensible owners in the pleadings he cannot fall
back on Section 41,19 In the instant case, the benefit of Section 41 was not given, as the essentials of the section
were not pleaded. 20
Second appeal. —The plea of defence of Section 41 is a mixed question of law and fact, if not taken in
written statement cannot be allowed to be raised for the first time in appeal. 21 The question whether the section
can be applied in second appeal on the facts as found by the Courts below as an inference of law has been
answered in the affirmative by the Allahabad High Court 22 differing from its previous decision. 23 A division Bench
of the Calcutta High Court 24 has, however, differed in opinion. One Judge (Rampini J.) held that the question of
acquiescence or waiver is a question of fact and the finding of the lower appellate Court on such a question is final
and cannot be interfered with in second appeal, while Mookerjee, J., held that acquiescence is not a question of fact
but of legal inference from facts found and it is open to the appellant in second appeal to invite the High Court to
consider whether the question of acquiescence has been properly decided by the lower Court. As remarked by the
Judicial Committee, "questions of law and fact are sometimes difficult to disentangle. The proper legal effect of a
proved fact is essentially a question of law". 25 As regards construction of a document, the same tribunal has
observed that unless there has been a misconstruction of a document which could be treated as contrary to law a
mistaken inference from a document is an error not of law but of fact so that the judgment of a lower appellate Court
is not liable to be reversed in second appeal as being contrary to law. 26
Finding-Interference in second appeal. —In the cases of benami transaction finding as to the sham
and fraudulent transaction is a finding of fact and cannot be interefered in second appeal. 27 Concurrent finding of
the Courts below that sale was not by an ostensible owner would not be interfered in second appeal. 28
Co-sharer managing the common property. —The conduct of co-sharers in permitting one of them to
manage the common property does not by itself raise any estoppel precluding them from asserting their rights. 29
The transferor-co-sharer is not required only to be ostensible owner but he is also required to be authorized by the
other co-sharer for management of the property in respect of their share. 30
Doctrine of advancement. —The doctrine of advancement is not applicable in India and, therefore,
when property is purchased by a father in the name of his son, or by a brother in the name of his widowed sister
dependant on him, it must be presumed that they are benamidars, and if they claims it as their own by alleging that
the father or the brother, intended to make a gift of the property to them, the onus rests upon them to establish such
a gift. 31 Where one ‘G’ had purchased the land in the name of his widowed sister and his son with clear object that
they should be owner of the property and he or any one else should not have any concern with the party, the
mutation of the land was effected in their name also, they dealt with the property as their own property, the
transaction was not held a benami transaction, the purchasers were the real owners of the property. 32
Benami Transactions. —It is too well known that benami transactions are entered into in this country
Page 22 of 59
S .41 (A)
without any motive or reason. In the case of Sahdeo Karan Singh v. Usman Ali Khan , 33 a Division Bench of the
Patna High Court has held that experience has shown that frequently benami transactions are entered into in this
country for no apparent reason. In the case of Gopeekrist Gosain v. Gungapersaud Gosain 34 their
Lordships of the Privy Council observed that benami purchases in the name of children without any intention of
advancement are frequent in India. 35
The genesis of the concept of benami is that consideration for a transfer must flow from one person and the transfer
is taken in the name of the other person and the consideration so flowing for the transfer was not intended to be a
gift in favour of the person in whose name the transfer is taken. 36 The word "benami" really denotes two classes of
transactions which differ from each other in their legal character and instance. In Bhim Singh v. Kam Singh , 37 their
Lordships of Supreme Court brought out the distinction between the two transactions as under :—
"Two kinds of benami transactions are generally recognised in India. Where a person buys a property with his own money
but in the name of another person without any intention to benefit such other person, the transaction is called benami. In
that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he
is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the
owner of the property executes a conveyance in favour of another without the intention of transferring the title to the
property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of
benami transactions referred to above lies in the fact that whereas in the former case there is an operative transfer from the
transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the
purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding
the execution of the conveyance."
The test to determine the case of benami had been repeatedly laid down in various decisions. In Jayadayal Peddar
v. Bibi Hazra , 38 their Lordships of the Supreme Court laid down the following tests :
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase,
(3) motive, if any, for giving the transaction a benami colour;
(4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale, and
(6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the
source from where the purchase money came and the motive why the property was purchased benami are by far
the most important tests for determining whether the sale standing in the name of one person, is in reality for the
benefit of another. 39
The question of ownership in a benami case is important only in early stages of the case. It may assume
importance where no evidence is led, but where evidence has been led, abstract consideration of ownership is out
of place and the case has to be decided on the evidence decided by the parties in which case the Court has to
Page 23 of 59
S .41 (A)
consider about the source of consideration money. 40
The burden of showing that a particular transaction is benami and the owner is not real owner always rests on
person asserting it to be so. 41 The essence of a benami transaction is the intention of the party or parties
concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such
difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests
on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. 42
The role and/or the motive on the part of the person who has advanced the amount of consideration plays an
important role in determination of the nature of transaction. 43 Where the Court held the transaction as benami,
without dilating upon the intention of the father who advanced money for the purchases and other relevant factors,
the judgment of the High Court was found unsustainable. 44 Although motive may not be decisive for determining
whether a transaction is benami but when direct evidence is wanting, the reasonable probabilities and legal
interferences arising from admitted and true facts surrounding circumstances, position of parties, their relation,
motive, subsequent conduct, dealing and enjoyment of property are certainly to be taken into consideration. 45
Where the plaintiff has taken the plea that the defendant was the benamidar of the property, he has first to
discharge his burden and the same would shift on the defendant only upon the plaintiff proving his case to a certain
extent., the burden cannot be shifted entirely on the defendant merely because the plea of benamidar has been
taken by the plaintiff in the alternative. 46 In the absence of evidence being placed to conclusively prove the nature
of the transaction as one of benami in nature, the Court would not arrive at the said conclusion merely based on the
conjectures and surmises. 47
Where the father has purchased property in the name of his minor sons, the minor sons had no separate fund to
acquire the property of their own, the father had also asserted his title to the property, it was held that presumption
would be drawn that the transaction was benami, the father had purchased the property for his benefit in the name
of his minor sons. 48
It is well settled that the burden of proving a transaction to be a benami one is on the person who alleges the same
to be benami, because the apparent state of affairs must be taken to be real unless the contrary is proved. The
burden, however, does not rest in one place but shifts to the other side. Thus while the burden fail if no evidence is
led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further
evidence were adduced by their side. Although the onus of establishing that a transaction is ’benami’ is on the
person asserting it to be so, where it is not possible to obtain evidence which conclusively established or rebuts the
allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or
admitted facts. 49
In order that a transaction may be held to be benami, the motive behind such benami transaction must be proved. 50
Absence of motive cannot be taken to be a circumstance against the benemai character of the transaction. 51
Relatinship is a circumstance which is taken into consideration in determining whether the transaction is benami or
not. 52
Where a father has taken benami sale deed in the name of his minor son as the minor has no money of his own for
Page 24 of 59
S .41 (A)
the purchase of the proprerty, the natural inference is that the father is the owner of the property, and for
transferring such property permission of the District Judge under
Section 8 of the Hindu Minority and Guardianship Act , 1958 is not required, the transfer made by the
father in favour of a third paerson is valid.53
The onus to prove that the transaction was benami lies on the person who sets it.There should be direct evidence
to prove the same. 54
Where in recovery of certain sum due from a Government servant, the house was attached, the wife contended that
the attached house was her personal property, the State urging that the house belongs to the husband, the State
did not allege that the husband Government servant had purchased house as benami in the name of his wife, the
wife led evidence to show that she had sufficient means for purchasing the house, it was held that the house
purchased was not benami transaction, as such the property could not be attached by the Government. 55
The payment of consideration is the primary test for determining whether the transaction is benami or not. If it is
found that the consideration for the transaction has been paid by a person other than the ostensible owner, the
transaction is a benami transaction. 56 It is well settled that intention of the parties is essence of the benami
transaction and the money must have been provided by the party invoking the doctrine of benami. 57
Where the plaintiff was in actual possession of the property and the documents relating thereto were also in his
possession, Kobala was taken in the name of one R , but the purchase money was paid by the plaintiff, held that
the plaintiff was owner of the property, had title thereto, R would be a mere benamidar, his heirs would also not
have any title/interest in the property. 58 Where no consideration was paid on the deed of transfer (Kobala),
execued by one co-sharer in favour of the other co-sharer, there was gross under valuation of the property also, the
transferor continued in possession of the property, the deed of transfer was held to be a benami and sham
transaction, and such no title pssed to the transferee. 59
A decision given in a proceeding brought by or against the benamidar could bind the real owner unless it is shown
that the benamidar could not and did not in fact represent interest of real owner in the proceedings. 60 Two
important circumstances viz. the source of consideration and possession of the property are relevant for
determining whether a transaction is a benami or not. 61 Where X purchased property in the name of Y , later Y
transferred the said property to H without consideration and later H transferred to one P , the possession of the
property remained with X and the original sale deed as per law in the teritory remained in the office of the notary
public, the sale in favour of H and P were mere benami transaction and P did not acquire any title to the property. 62
Mere proof of source of purchase money would not finally establish the benami nature of transaction. 63
Where the plaintiff is the real owner of the property but his father acting as owner of the property executed an
agreement for sale of the land in favour of the defendant, the sale deed is executed in the presence of the plaintiff,
the sale consideration is paid to the plaintiff, the plaintiff is estopped from challenging the validity of the sale deed
on the ground that the father has no authority to transfer the land. 64
The question whether a transaction was a benami transaction is a question of fact and where the Courts of facts
had held against the defendant on this point, the finding could not be challenged in second appeal. 65
Page 25 of 59
S .41 (A)
Where the purchase was made in the name of wife by the husband, no money whatsoever was paid by the
husband for the purchase, the wife alone had been in the possession of the property, the wife produced the title
deeds of the property, wife was held owner and not benamidar of the husbamd of the house property. 66 A person
may for various reasons intend to purchase a property in the name of his wife. It may be for one reason or the
other. There may or may not be a practice in respect thereto. Where the property was purchased in the name of the
wife through power of attorney executed by wife, attested by her husband, mutation and insurance thereof was also
in name of the wife, held the husband intended that the property be purchased for the security and benefit of the
wife and daughters, the transaction was not a benami transaction. 67 In all cases where a real owner comes before
Court setting up the theory that the property stands in the name of the ostensible owner and thereby projects the
theory of benami, it is fundamental that it is for that person to establish, beyond doubt, that he had the requisite
money with him at or about the time when the purchase was made, and that he should have secured such money
for purchase of the specified property. It is only in a case where there is prima facie evidence let in by the person,
challenging title to the property in himself and proving his capacity and ability to purchase such property at or about
the time when the purchase was made, the onus would shift to the other side. 68 Where the person alleging a
transaction to be benami fails to adduce evidence that he had the funds to purchase the suit person, the other
person held the properties for a number of years, it is of no effect that such other person does not enter the witness
box to prove that he or she had the necessary funds at or about the time and property was purchased. 69
It is well established that in a case where it is asserted that an assignment in the name of one person is in reality for
the benefit of another, the real test is the source where the consideration came and that when it is not possible to
obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable
probabilities and legal inferences arising from proved or admitted facts. 70
In the beginning of this century a Hindu husband often used to negotiate and obtain receipts for his wife in his own
name. 71 Mere fact that the consideration had been paid by the husband to the transferor does not necessarily
prove that the husband paid the amount from his own pocket. It is quite probable that the wife had entrusted the
amount to him for payment to the transferor at the time of registration of the document. 72 The general rule of law is
that where a person with funds, supplied by himself buys property in the name of another, there is a resulting trust
in favour of the former; the beneficial interest being in him though the ostensible ownership is in the latter. In
English Law there is an exception to the rule in that where the purchase is made ostensibly in the name of wife or
child, there is a presumption of an intended advancement. No such exception has been admitted in Indian Law.
Therefore, where a husband pays the money and purchases the property in the name of his wife, the burden of
proving lies on the wife to show that the husband purchased the property in her name by way of gift or
advancement. 73
If the wife fails to prove this, the presumption would arise that the husband who in fact provided the money is the
rightful owner. The main criterion is thus the source of the purchase money. 74
On the evidence and the circumstances of the case, it was found that the transactions were not benami transaction,
but documents were consistent with the real ownership of the wife. 75 Plaintiff’s case was that he had purchased
the suit land in the name of his wife in order to screen the property from the creditors of his brother. The names of
the creditors were not given in the plaint. The plaintiff did not provide any money for the purchase of the land in the
name of his wife. Neither in the plaint nor in his deposition the plaintiff explained satisfactorily when the money was
provided by a third person. Neither the person who was alleged to have paid the money nor anyone else on his
behalf has examined as a witness. The reason for purchase of the property in the name of the wife was also not
acceptable. Held, since the original plaintiff failed to prove that he had provided the money for the purchase of the
land and the reasons why he purchased the property benami in the name of his wife, the plea of benami transaction
advanced in the case was repelled. 76
Page 26 of 59
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Where in a suit for possession the defendant took plea that the property was purchased as benami in the name of
the plaintiff, no reason was given as to why the property was purchased in the name of the plaintiff, the plainitff had
been spending money over the maintenance of the property, house tax had also been paid by the plaintiff, it was
held that the defendant failed to prove that the plaintiff was the benamidar and in fact the defendant was the owner
of the property. 77
Where the plaintiff was the taxi driver, was having permit for the same, the defendant was in possession of the
vehicle, and was also in possession of the documents relating to the vehicle, though the vehicle had been
purchased in the name of the defendant, the defendant had paid the loan instalments, there was no evidence that
the defendant had wrongfully taken possession of the vehicle, the plaintiff was held mere benamidar and the
defendant was held the real owner of the vehicle. 78
Where the plaintiff was a property dealer and defendant was a money lender, the plaintiff took up the case that he
used to purchase land in the name of defendant, the consideration was fully paid by the defendant, there was
understanding between the parties that on repayment the defendant would transfer the land to the plaintiff, it was
found that the case was not of a benami transaction. The burden is on the plaintiff to prove that the transaction is a
benami. 79
It is now well settled that the burden is on the person who sets up the case of benami, and that if the burden is not
discharged the ostensible title will prevail. To substantiate a case of benami, several factors have to be taken into
consideration and on an overall assessment of such factors the Court has to render a finding. The relevant factors
are : (a) the consideration; (b) possession and enjoyment of the property; (c) possession of the title deeds; (d)
motive and (e) mutation in the public records. 80 Further, if the benamidar and the real owner were to be related as
wife and husband, or concubine and paramour, the payment of consideration by the husband or paramour, as the
case may be, would not be decisive, for, it is most likely that the husband or paramour intended to benefit the wife
or the concubine. 81
Where in an eviction suit, the instant case under

Section 14(1)(e) of the Delhi Rent Control Act (44 of 1954) it is open to the tenant to contend that the
sale of the property in favour of the landlord is only a sham one intended to enable him to eject the tenant, but it is
not open to him to urge that the landlord is only a benamidar and not the real owner.82 Where in an eviction suit,
the tenant contends that a landlord is only benamidar he cannot raise the question of source of the money with
which the purchase price was paid. Only the heir of the vendor can raise such question. 83
Where the appellant had purchased the land in the name of his brother B , but sale deed remained in V ’s name, V
also continued in possession of the land, it was found that V was the owner of the land. 84 Where the real owner
has not repudiated the title of the benamidar, the latter can maintain a suit for partition. 85
Benami Transaction prohibited. —After the enforcement of the Benami Transaction (Prohibition) Act,
1988, under Section 3 of the Act benami transactions have been prohibited and made an offence punishable with
imprisonment for a term which may extend to three years or with fine or with both. However, the purchases of
property by any person in the name of his wife or unmarried daughter have been saved and there is presumption,
unless the contrary is proved, that the property had been purchased for the benefit of the wife or the unmarried
daughter.
Page 27 of 59
S .41 (A)
Under Section 2 (a) of the Act "Benami transaction" means any transaction in which property is transferred to one
person for a consideration paid or provided by another person.
Benami transactions are prohibited after the coming into force of the
Benami Transactions (Prohibition) Act, 1988 . The Benamidar is bound to restore such property to the
real owner. 86
Benami transaction and sham transaction. —If the sale is sham nothing passes by conveyance
which is no more than a paper transaction. Benami transaction in a sense is not a sham transaction. The essence
of a benami transaction is to give it the appearance of reality, to cloak a fictitious transfer with all the appearance of
a genuine one. The dominant question is one of intention, a benamidar is a mere name lender, he is an apparent
owner. The criterion in these cases is to consider from what source the money came with which the purchase price
was paid. 87
Benami transaction is one in which the real owner pays the consideration and purchases the property in the name
of another. That another person is known as benamidar. In the sham transaction the executor of the sale deed has
no intention to convey the property. The title in the property of the executor remains with the vendor as the same is
not transferred to the vendee in a sham transaction. In sham transaction there is no intention to convey the property
whereas in the benami transaction there is intention to convey the property and the property is conveyed not to the
real vendee but to his benamidar. 88
Nominal transaction and benami transaction. —There is a distinction between a nominal transaction
and a benami transaction; while in the former the title vests with the vendor, and there is no sale consideration
between the vendor and the vendee, in the case of a benami transaction the title vests with the purchaser. 89
Benami transaction—Burden of proof. —The burden to prove that the sale is benami is on the person
asserting it as such. The question, whether a particular sale is benami or not, is largely one of fact. 90
Punjab State. —Though the

Transfer of Property Act does not apply in the State of Punjab but the principles of the Section 41, which
are based on justice, equity, good conscious and sound public policy can be applied.91
Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954). —The Displaced Persons
(Compensation and Rehabilitation) Act, 1954 is a special Act, whereas the
Transfer of Property Act, 1882 , is a general Act. Therefore, the provisions of the
Transfer of Property Act , would have no application to orders passed under Sections 19 and 24 of the
Displaced Persons (Compensation and Rehabilitation) Act.92
Sale of movable property—Application of Section 41. —The principle of Section 43 can be extended
to a sale of movable property where the ingredients of the section are satisfied. 93
Page 28 of 59
S .41 (A)
Miscellaneous. —Where the plaintiff vendor alleged that the sale deed was by way of security for loan
advanced by the defendant, the plaintiff continued in possession even after the sale deed, the defendant had also
admitted in cross-examination that on earlier occasions he had entered into transaction with the plaintiff to keep the
land as security, it was found that the sale deed was by way of security for the loan advanced and not out and out
sale. 94
Transfer by person having authority to revoke former transfer.
4 Gurbaksh Singh v. Nikka Singh , AIR

1963 SC 1917 (1919); Hardev Singh v. Gurmail Singh , AIR 2007
SC 1058 (1060) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ] ; S. Uttamchand v. T.M. Devan , 2007 (5) Mad LJ 1359
(1365) (Mad); Niranjan Kaur v. Financial Commissioner, Revenue, Punjab , AIR 2011 P&H 1 (10) (FB) : 2011 (1) Punj
LKR 48; Kalipatnapu Atchutamma v. Kommana Sambamuthy ,
2003 (2) CCC 267 (274) (AP); Selshumull M. Shgah v. Sayed Abduyl Rashid ,
AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (278); Lakshmi Co . v. Surender Gori ,
AIR 1989 NOC 136 (P&H); Drigpal Singh v. Wife of Laldhari Ojha ,
AIR 1985 Pat 110 (112); Beyas Singh v. Ramjanam Ahir ,
AIR 1961 Pat 16 : ILR 26 All 490 relied on); Rajaram Ahair v. Beyas Singh ,
AIR 1958 Pat 537 : 1958 BLJR 103 ; Surjit Singh v. Mohinder Singh , 1978 Rev LR
291 ; Kanhaiya Lal v. Deep Chand ,
AIR 1947 Lahore 199 ; Gurcharan Singh v. P.S.F.B ., AIR 1989 P&H 127 (129); B.
Sitaram Rao v. Bibhisano ,
AIR 1978 Ori 222 [
LNIND 1978 ORI 25 ] (223, 224): (1978) 46 CLT7; Motimul v. Visalakshi Ammal ,
AIR 1965 Mad 432 [
LNIND 1964 MAD 373 ]; Surenderanath v. Lohit Chandra ,
AIR 1975 Gau 56 (58); Sadiq Hussain v. Co-op Central Bank, Yeotmal ,
AIR 1952 Nag 106 (108); Ram Kissan Agarwalla v. Muktinath Sharma ,
AIR 1956 Assam 151 ; Gurbinder Singh v. Lal Singh ,
AIR 1959 Punj 123 ; Jit Singh v. Kalapati ,
AIR 1962 Punj 46 ; Satyanarayanamurthi v. Padayya ,
AIR 1943 Mad 459 ; Ladhibai v. Ravji Nagshi ,
AIR 1950 Kutch 34 ; Velutha Kunju v. Neelacantan,
1950 KLT 23 ; The Catholic Mission Presentation Covenant v. Subhanna Goverdan
, 1948 Mad 320 ; Zarif-un-Nissa v. Shafiq-uz-Zaman Khan ,
(1928) 55 IA 303 ; Lakshman v. Vasudev ,
(1931) 33 Bom LR 356 ; Ballu Mal v. Ram Kishan ,
(1921) 43 All 263 ; Partab Chand v. Saiyida Bibi ,
(1901) 23 All 442 ; Macneil v. Saroda Sundari ,
AIR 1929 Cal 83 ; Umaram v. Puruk ,
AIR 1925 Cal 993 .
5 Umaram v. Puruk ,
AIR 1925 Cal 993 ; Kanhu Lal v. Palu Sahu ,
(1920) 5 Pat LJ 521 ; Gurbaksh Singh v. Nikka Singh , AIR
1963 SC 1917 (1919); Sadiq Hussain v. Co-op Central Bank, Yeotmal ,
AIR 1952 Nag 106 (108); Sonu Kapri v. Saligram , 28 Pat 542; Khushal Chand
Bhaglchand v. Trumbak ,
AIR 1947 Bom 49 ; Sheonarayan v. Goverdhan ,
AIR 1948 Nag 110 ; Ashok Singh v. Nizamul Islam alia Musa , 2005 (3) All WC
2086 (2088) (All) : 2005 (2) All Rent Cas 11; Rajesh Shankar Mathur v. D.D.A. ,
(2005) 80 DRJ 17 (20) (Del); Kashmir Singh v. Panchayat Samiti, Ferozpur , AIR
2004
Page 29 of 59
S .41 (A)
SC 2438 (2440) :
(2004) 6 SCC 207 [
LNIND 2004 SC 487 ].
6 Sheonarayan v. Goverdhandas ,
AIR 1948 Nag 110 : ILR 1947 Nag 510 ; Rajesh Shankar Mathur v. D.D.A. ,
(2005) 80 DRJ 17 (20) (Del).
7 Gurbaksh Singh v. Nikka Singh , AIR 1963

SC 1917 (1919) : (1963) Supp (1) SCR 55.
8 T. Bheem Reddy v. P. Laxmi Bai & Others,

2012 (4) ALD 618 :
2012 (5) ALT 345 (A.P.).
9 Sheotahal v. Lal Narain ,

AIR 1930 All 422 ; Baidya Nath Dutt v. Alef Jan Bibi ,
AIR 1923 Cal 240 ; Baswantapa v. Ranee , (1885) 9 Bom 86 ; Mahanta Bhagaban
v. Bisweswar ,
AIR 1927 Cal 220 ; Gholam Sidhique v. Jogendra Nath ,
AIR 1929 Cal 916 ; Mir Mahomed v. Kishori Mohan ,
(1895) 22 Cal 909 : 22 IA 129; Lachman v. Kalli Churn ,
(1873) 19 WR 292 ; Mubarakunnissa v. Raza Khan ,
AIR 1924 All 384 ; Khwaja Muhammad v. Muhammad Ibrahim ,
(1904) 26 All 490 .
10 1872, 11 Beng LR 46.
11 Lakshman v. Vasudev ,
(1931) 33 Bom LR 356 ; Ragupathi v. Mishingha ,
AIR 1923 Cal 90 ; Vilayat Husain v. Misran ,
(1923) 45 All 396 .
12 Mohamad Sujat v. Mt. Chandbi ,

AIR 1927 Nag 41 .
13 See Ramcoomar v. Macqueen , (1872) 52 Ind App Sup (40); Seshumull M. Shah v.
Sayed Abdul Rashid ,
AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (276):
(1991) 1 Kar LJ 320 [
14 Inbamathi v. Ramar , 2007 (2) Mad LJ 927 (944, 945) (Mad).
15 Ayetunnissa Bibi v. Jahor Lal , 45 CWN 735.
16 Satyanaranamurthi v. Pydayya ,
AIR 1943 Mad 459 : 1943 1 MLJ 219 : 213 IC 359.
Page 30 of 59
S .41 (A)
17 Har Narain Prasad v. Ashiq Hussain ,

AIR 1942 Oudh 313 : 199 IC 808.
18 Kapura v. Madusudan Das ,

AIR 1942 Lah 168 :
(1943) 44 PLR 183 : 209 IC 609.
19 Ratan Sen v. Suraj Bhan ,

AIR 1944 All 1 (4) (DB); Basdeo Gir Jugraj Prasad ,
AIR 1948 Oudh 247 : 1948 OWN 156 ; Mahant in possession of endowed property
as manager, S. 41 held inapplicable.
20 Ramchandraswami v. Thoonabai, 1942 NLJ 405.
21 Narsingdas v. Sohan Lal ,

AIR 1952 Punj 289 ; Lal Singh Didar Singh v. Guru Granth Sahib ,
AIR 1951 Pepsu 101 : 1951 Bh LR Pep 78. (Where property vested in a religious
institution).
22 Hajarkhan Kalubava v. Kesarkhan Kayamkhan ,

AIR 1968 Guj 229 [
LNIND 1967 GUJ 106 ]: (1967) 9 Guj LR 1066.
23 Lakshmi Co. v. Surender Gori ,

AIR 1989 NOC 136 (P&H).
24 Shiv Dass v. Devki , AIR 1978 P&H 285 (288) :

(1978) 80 PLR 390 .
25 Shiv Dass v. Devki , AIR 1978 P&H 285 (288) : 1978 Cur LJ (Civil) (P&H) 295.
26 Motimul Sowiar v. Visalakshi Ammal ,

AIR 1965 Mad 432 [
LNIND 1964 MAD 373 ] (435) (DB) :
(1965) 2 MLJ 371 [
LNIND 1964 MAD 373 ].
27 Sheonandan Sao v. Urgrah Sao ,

AIR 1955 Pat 189 (192) :
1954 BLJR 33 .

(1978) 80 PLR 390 .
29 Zalfrul Hasan v. Farilduddin , 1944 All LJ 517 :

(1945) 1 MLJ 12 : 49 CWN 115 (PC).
Page 31 of 59
S .41 (A)
30 Ram Krishna v. State of U.P. ,

AIR 1987 All 100 [
LNIND 1986 ALL 42 ] (106) (DB).
31 Surjit Singh v. Mohinder Singh , 1978 Rev LR 291 ; Kanhiya Lal v. Deep Chand ,
AIR 1947 Lah 199 : 48 PLR 454 : 231 IC 383; Gurcharan Singh v. P.S.F.B. , AIR
1989 P&H 127 (129) : (1988) Pun LJ 28.
32 Kanji S/o Ganesh v. Parmanand ,

AIR 1992 MP 208 [
LNIND 1991 MP 172 ] (214, 215) :
(1988) 94 PLR 674 .
33 Quandhara Singh v. Union of India , AIR 1984 P&H 51 (54).
34 Crystal Developers v. Asha Lata Ghosh , AIR 2004

SC 4980 (5003) :
(2005) 9 SCC 375 [
LNIND 2004 SC 1032 ].
35 B.V. Sundariah v. B.R. Ramasastry ,

AIR 1955 Mys 8 (12) :
ILR 1955 Mys 1 .
36 Raj Kumar Rajinder Singh v. H.P. Administration ,

AIR 1964 HP 19 [
LNIND 1961 HP 4 ].
37 Hardev Singh v. Gurmail Singh , AIR 2007

SC 1058 (1062) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ].
38 Sarat Chunder Dey v. Gopal Chunder Dey ,

(1893) 20 Cal 296 : 19 IA 203; Dawson’s Bank Ltd. v. Nippon Menkwa Kabushiki
Kaisha, (1935) 61 CLJ 239 P.C.
39 Umaram v. Puruk ,
AIR 1925 Cal 993 ; Lala Prabhu Lal v. Mylen ,
(1887) 14 Cal 401 .
40 Seshumull M. Shah v. Sayed Abdul , Rashid

AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (278); Surjit Singh v. Mohinder Singh , 1978 Rev LR 291 ;
Kanhiya Lal v. Deep Chand ,
AIR 1947 Lah 199 : 48 PLR 454; Gurcharan Singh v. P.S.F.B. , AIR 1989 P&H 127
(129); Union Bank of India v. Ram Rati ,
AIR 1954 All 595 [
LNIND 1953 ALL 193 ] (DB) :
1954 AWR 108 ; Ashok Singh v. Nizamul Islam alia Musa , 2005 (3) All WC 2086
(2088) (All) : 2005 (2) All Rent Cas 11.
Page 32 of 59
S .41 (A)
41 Shafiq-ullah Khan v. Sami-ullah Khan ,

(1930) 52 All 139 ; Jang Bahadur Charitra Rai v. Burjore Ardeshir Mistry ,
2007 (5) Bom CR 767 [
LNIND 2007 BOM 679 ] (773) :
2007 (6) Mah LJ 321 (Bom); Ganpati Narayan Vihari v. Ramchandra Bhiku Sawant,
2009 (6) Mah LJ 948 (Bom).
42 Shamsher Chand v. Rakshi Mehr Chand

,
AIR 1947 Lah 147 (FB) :
ILR 1947 Lah 749 ; Ram Kissan Agarwalla v. Muktinath Sarma ,
AIR 1956 Ass 154 .
43 Ram Kissan v. Muktinath ,

AIR 1965 Ass 154 (156).
44 Kalipatnapu Atchutamma v. Kommana Sambamuthy ,

2003 (2) CCC 267 (274) (AP).
45 Kalipatnaput Achutamma v. Kommana Sambamuthy ,

2003 (2) CCC 267 (274) (AP).
46 Ashok Singh v. Nizamul Islam alia Musa , 2005 (3) All WC 2086 (2089) (All) : 2005 (2) All
Rent Cas 11.
47 Jang Bahadur Charitra Rai v. Burjore Ardeshir Mistry ,

2007 (5) Bom CR 767 [
LNIND 2007 BOM 679 ] (773) :
2007 (6) Mah LJ 321 (Bom).
48 Jang Bahadur Charitra Rai v. Burjore Ardeshir Mistry ,

2007 (5) Bom CR 767 [
LNIND 2007 BOM 679 ] (773, 774) :
2007 (6) Mah LJ 321 (Bom).
49 Dungariya v. Nand Lal

,
(1906) 3 ALJ 534 :
1983 Mah LJ 221 (Real owner’s constent need not be expressed); Rajaram Ahair v.
Beyas Singh ,
AIR 1958 Pat 537 : 1958 BLJR 103.
50 Niranjan Kaur v. Financial Commissioner, Revenue, Punjab, AIR 2011 P&H 1 (15) (FB) :
2011 (1) Punj LR 48
51 IX of 1872.
52 Sarat Chunder Dey v. Gopal Chunder Laha ,

(1893) 20 Cal 296 : 19 IA 203.
53 Mahanta Bhagaban v. Bisweswar ,

AIR 1927 Cal 220 .
Page 33 of 59
S .41 (A)
54 Ananda v. Parbati, (1906) 4 CLJ 198.
55 Bhimappa v. Basawa , (1902) 29 Bom 400.
56 Ramprasad v. Imratbai , (1922) 18 NLR 27 ; Sarat Chunder Dey v. Gopal Chunder Laha ,
(1893) 20 Cal 296 : 19 IA 203.
57 Sonur Kapri v. Saligram , 28 Pat 542.
58 Mataber paricha v. Numai Charan ,

AIR 1952 Ori 75 [
LNIND 1951 ORI 55 ].
59 Sarju Kairi v. Panchanand Sarma ,

AIR 1959 Ass 15 : ILR (1957) 9 Assam 465; Gurbinder Singh v. Lal Singh ,
AIR 1959 Punj 123 : 60 PLR 528 :
ILR 1958 Punj 2258 ; Jagav v. Chhoto ,
1963 Cur LJ 425 (Punj).
60 Thakuri v. Kundan ,
(1895) 17 All 280 ; Sarju Kairi v. Panchanand Sarma ,
AIR 1959 Ass 15 .
61 Shamsher Chand v. Rakshi Mehr Chand ,

AIR 1947 Lah 147 (FB) : 49 PLR 274.

AIR 1959 Ass 15 : ILR 1957 9 Assam 465.
63 Ananda v. Parbati, (1906) 4 CLJ 198.
64 Mahanta Bhagaban v. Bisweswar ,

AIR 1927 Cal 220 .
AIR 1925 Cal 993 ; Sarat Chunder Dey v. Gopal Chunder Laha ,
(1893) 20 Cal 296 : 19 IA 203. Bhimappa v. Shivbasappa , (1905) 29 Bom 400.
66 Kanchedilal v. Kanhai , (1932) 28 N.LR 327; Joy Chandra v. Sreenath ,

(1902) 32 Cal 357 P.C.; Muhammad Shafi v. Muhammad Said ,
(1929) 52 All 248 ; Mohmed Sujat v. Mt. Chandbi ,
AIR 1927 Nag 41 ; Sarju Kairi v. Panchanand Sarma ,
AIR 1959 Ass 15 : ILR 1957 (9) Ass 465; Gurbinder Singh v. Lal Singh ,
AIR 1959 Punj 123 : ILR 1958 Ass 2258.
AIR 1925 Cal 993 .
Page 34 of 59
S .41 (A)
68
Indian Contract Act, S. 17 , expl.,Joy Chandra v. Sreenath ,
(1905) 32 Cal 357 .
69 Shamsher Chand v. Bakshi Mehar Chand ,

AIR 1947 Lah 147 (FB) :
ILR 1947 Lah 749 ; Gurbinder Singh v. Lal Singh ,
AIR 1959 Punj 123 (128) :
ILR 1958 Punj 2258 .
70 Kanchedilal v. Kanhai , (1932) 28 Nag LR 227.
71
(1895) 18 All 146 : 23 IA 1 (4).
72 Hari Kishen Bhagat v. Kashi Pershad Singh ,

(1915) 42 Cal 876 .
73 Zarif-un-Nisa v. Shafiq-uz-Zaman Khan ,

(1928) 55 IA 303 .
74 Makkama Khadirsaheb v. Masabi Abasali ,

(1925) 27 Bom LR 208 .
75 Narayana v. Rama , (1915) 38 Mad 396 ; Kandasami v. Rangasami,

(1912) 23 MLJ 301 [
LNIND 1912 MAD 291 ].
76 (1869) 13 MIA 209, 228.
77 Banga Chandra v. Jagat Kishore ,

(1917) 44 Cal 186 : 43 IA 249; Mollayya v. Krishnaswami ,
AIR 1925 Mad 95 [
78
(1917) 44 Cal 186 : 43 IA 249.
79 Pandurang v. Markandeva ,
(1922) 49 Cal 334 : 49 IA 16.
80 Bang Chandra v. Jagat Kishore ,

(1917) 44 Cal 186 : 43 IA 249.
81 Niranjan Kaur v. Financial Commissioner, Revenue, Punjab, AIR 2011 P&H 1 (12) (FB) :
2011 (1) Punj LR 48 ) (Relying on AIR
1964 SC 669 & AIR
1997 SC 3297 .
Page 35 of 59
S .41 (A)
82 Jogendra v. Salamat ,
AIR 1930 Cal 92 .
83 Amit Mukherjee v. Bibhabati Devi ,

AIR 1979 Cal 344 [
LNIND 1979 CAL 40 ] (348) : 83 CWN 500 : (1979) 1 CLJ 302.
84 Abdullah Khan v. Mt. Bundi ,

(1912) 34 All 22 ; Dalibai v. Gopibai , (1902) 26 Bom 433 ; Amrao v. Baburao, 1950
NLJ 30 :
ILR (1950) Nag 25 .
85 Shankar v. Daooji , AIR

1931 PC 118 ; Surjit Singh v. Mohinder Singh , 1978 Rev LR 291 ; Kanhiya Lal v.
Deep Chand ,
AIR 1947 Lah 199 ; Gurcharan Singh v. P.S.F.B. , AIR 1989 P&H 127 (129);
Satyanarayanamurthi v. Pydayya ,
AIR 1943 Mad 459 , Pooran Chand v. Radha Raman ,
AIR 1943 All 197 ; Sadiq Hussain v. Cooperative Central Bank , Yeotmal ,
AIR 1952 Nag 106 : ILR (1953) Nag 684.
86 Dambai Singh v. Jawitri ,

(1907) 29 All 292 .
87 Ram Charan v. Joy Ram ,

(1912) 17 CWN 10 .
88 Shankar v. Daooji , 58 IA 206

(1931) 53 All 290 : 58 IA 206.
1 Gadigeppa v. Balangauda , (1931) 55 Bom 741 FB.
2 Sadiq Ali Khan v. Jai Kishori ,

(1928) 30 Bom LR 1346 , PC.
3 Surjit Singh v. Mohinder Singh , 1978 Rev LR 291 ; Kanhiya Lal v. Deep Chand ,
AIR 1947 Lah 199 : 48 PLR 454 : 231 IC 383; Gurcharan Singh v. P.S.F.B. , AIR
1989 P&H 127 (129) : (1988) Pun LJ 528.
4 Gurcharan Singh v. P.S.F.B. , AIR 1989 P&H 127 (129) : (1988) Pun LJ 528.
5 Karamshi Vershi v. Ratanshi Menshi ,

AIR 1952 Kutch 55 (57).
6 Sadiq Hussain v. Co-operative Central Bank , Yeotmal,

AIR 1952 Nag 106 : ILR 1953 Nag 684.
Page 36 of 59
S .41 (A)
7 Sadiq Hussain v. Co-operative Central Bank , Yeotmal,

AIR 1952 Nag 106 : 1952 Bh LR Nag 118.
AIR 1930 Cal 92 .
9 Hajari Khan v. Kesar Khan ,

AIR 1968 Guj 229 [
LNIND 1967 GUJ 106 ] (234) : 9 Guj LR 1066.
AIR 1930 Cal 92 .
11 Kallappa v. Balwant ,
(1925) 27 Bom LR 434 .
12 Amir Jahan v. Khadum Husain ,

AIR 1931 Oudh 253 .
13 Narayan v. Purushottam ,
AIR 1931 Nag 144 .
14 Chooni Lall v. Nilmadhad ,

AIR 1925 Cal 1024 .
15 Niranjan Kaur v. Financial Commissioner, Revenue, Punjab , AIR 2011 P&H 1 (10) (FB) :
2011 (1) Punj LR 48
16 Kanji S/o Ganesh v. Parmanand ,

AIR 1992 MP 208 [
LNIND 1991 MP 172 ] (214):
1992 MPLJ 136 [
LNIND 1991 MP 172 ] : (1993) I DMC 334.
17 Brojonath v. Koylash ,
(1868) 9 WR 593 .
18 Bhugwan Doss v. Upooch Singh ,

(1869) 10 WR 185 .
19 Jit Singh v. Kalapati ,

AIR 1962 Punj 46 .
20 Neelkanth v. Siddalingayya ,
AIR 2004 Kant 258 [
LNIND 2003 KANT 640 ] (261) : 2004 AIR Kant HCR 1061.
Page 37 of 59
S .41 (A)
21 Kammana Sambamurthy v. Kalipatnapu Atchutamma,

(2011) 11 SCC 153 [
2011 SC 103 :
(2011) 99 AIC 186 :
(2011) 85 ALR 221 : (2011) 1 Cal HN 248
JT 2010 (12) SC 92 [
LNIND 2010 SC 978 ]
(2011) 11 SCC 153 [
LNIND 2010 SC 978 ]
22 Muhammad Sulaiman v. Sakina Bibi ,

(1922) 44 All 674 ; Jamna Das v. Uma Shankar ,
(1914) 36 All 308 .
23 Suraj Ratan Therani v. Azamabad Tea Co. Ltd ., AIR 1955 NUC (Cal) 2867 (DB).
24 Shankar v. Daooji ,
AIR 1931 P.C. 118 .
25 Abdullah Khan v. Musammat Bundi ,

(1912) 34 All 22 .
26 Dalibai v. Gopibai , (1902) 26 Bom 433.
27 Dambar Singh v. Jawitri Kunwar ,

(1907) 29 All 292 .
28 Rangaswami v. Sundarapandia ,
AIR 1928 Mad 635 [
29 Ladhibai v. Rajiv Nagshi ,

AIR 1950 Kutch 34 .
30 Deba Kanta Bhuyan v. Dilip Kumar Ray, 2012 (3) Gauhati LR 343 (349) (Gauh)
31 Phool Kuer v. Pem Kuer , AIR

1952 SC 207 (213); State of Punjab v. Surjeet Kuer ,
2002 (2) Raj LW 577 (579) (SC)
32 Shib Deo v. Ram Prasad ,

(1924) 46 All 637 . Jayagavri v. Purshotamdas , (1918) 20 Bom LR177.
33 Pancham Singh v. Balak Ram ,

AIR 1930 All 374 .
34 Nidhee Singh v. Bissonath ,

(1884) 24 WR 79 .
Page 38 of 59
S .41 (A)
35 Haryana State through Collector, Karnal v. Sukhjit Singh ,

2005 (2) Punj LR 25 (31) (P&H).
36 Azima Bibi v. Shamalanand ,

(1913) 40 Cal 378 PC.
37 Mul Raj v. Fazal Imam ,

(1923) 45 All 520 .
38 Rangaswami v. Sundarapandia ,
AIR 1928 Mad 635 [
39 Mathura Prasad v. Mt. Anandi ,

AIR 1924 All 63 .
(1895) 17 All 280 .
41 Makkama Khadirsaheb v. Masabi Abasali ,

(1925) 27 Bom LR 208 .
42 Suraj Ratan Thirani v. Azamabad Tea Co. Ltd ,

AIR 1955 NUC 2867 (Cal-DB).
43 Santhri Anlarjanam v. Kuruvilla Kuriyakose ,

AIR 1958 Ker 325 [
LNIND 1957 KER 173 ]:
1957 KLT 924 .
44 Sethumadhava v. Bacha Bibi ,

AIR 1928 Mad 778 .
45 Appa Dhond v. Babaji Krishnaji , (1922) 46 Bom 85.
46 Mt. Sahodra v. Badri Prasad ,

AIR 1929 All 737 .
47 Section 2 h,
48 Section 2 i,
49
Section 35 of the Specific Relief Act , I of 1877.
Page 39 of 59
S .41 (A)
50
Section 38 of the Specific Relief Act , I of 1877.
51 Dhurba v. Purna ,
AIR 1973 Ori 192 [
LNIND 1973 ORI 23 ] (195); Ramcoomar Koondoo v. Mc Queen , (1872) 18 Suth
WR 166 (PC); Baidya Nath Dutt v. Alef Jan Bibi ,
AIR 1923 Cal 240 : 70 IC 194.

AIR 1928 Mad 778 .
53 Partap Chand v. Saiyida Bibi ,

(1901) 23 All 442 ; Azima Bibi v. Shamalanand ,
(1912) 40 Cal 378 ; Jugmohan Das v. Indar Prasad ,
AIR 1929 Oudh 160 ; Pateshri Pertab v. Nageshar ,
(1911) 8 ALJ 358 ; Kanchedilal v. Kanhai , (1932) 28 N.LR 227; Zangabai v.
Bhawani ,
(1907) 9 Bom LR 388 [
LNIND 1907 BOM 20 ]; Ram Charan v. Joy Ram ,
(1912) 17 CWN 10 ; Sarupa v. Mt. Dhundan ,
AIR 1930 Lah 286 ; Chandi Prosad Ganguly v. Gadadhar Singh Roy ,
AIR 1949 Cal 666 ; Shamsher Chand v. Bakshi Mehar Chand ,
AIR 1947 Lah 147 (FB); Abdul Gafar v. Nawab Ali ,
AIR 1949 Ass 17 ; S.K. Singh (Dr.) v. Co-operative Tribunal, Hyderabad,
2009 92) ALD 474 :
2009 (2) ALT 244 : 2009 (1) LS 405).
54 Macneil & Co. v. Saroda Sundari Debi ,

AIR 1929 Cal 83 ; Chandi Prosad Ganguly v. Gadadhar Singh Roy ,
AIR 1949 Cal 666 :
AIR 1947 Lah 147 (FB).
55 Gholam Sidique v. Jogendra Nath ,

AIR 1926 Cal 916 ; Kanhailal v. Polu Sahu ,
(1920) 5 Pat LJ 521 ; Manji v. Hoorbai ,
(1910) 12 Bom LR 1044 [
LNIND 1910 BOM 110 ].
56 C. Sundarammal v. Arunachala ,
AIR 1927 Mad 1138 [
LNIND 1926 MAD 405 ].

AIR 1959 Ass 15 : ILR 1957 9 Assam 465.

AIR 1959 Ass 15 : ILR 1957 9 Assam 465.
59 Tiptur Taluk Agricultural v. D.C.D.R. Forum ,

2003 (8) AIC 495 (502) (Kar); Kashmir Singh v. Panchayat Samiti, Ferozpur , AIR
2004
SC 2438 (2440) :
Page 40 of 59
S .41 (A)
(2004) 6 SCC 207 [

LNIND 2004 SC 487 ].
60 S. Uttamchand v. T.M. Devan , 2007 (5) Mad LJ 1359 (1365) (Mad).
61 Deba Kanta Bhuyan v. Dilip Kumar Ray,

2012 (3) Gau LR 343 (348) (Gau)
62 Gurbachan Singh v. Gurmit Singh ,

(2004-1) Punj LR 11 (15) (P&H).
63 Tiptur Taluk Agricultural v. D.C.D.R. Forum ,

2003 (8) AIC 495 (502) (Kar).
64 Ram Rajji (Smt.) v. D.D.C, Varanasi , 2006 (5) All LJ 7 (DOC) : 2006 (101) RD 1; Ram
Laut v. Gomti , 2008 (104) RD 388 (390) (All).
65 Har Pal Singh v. Board of Revenue , 2006 (6) All LJ 190 (DOC) (All) : 2006 (101) R.D.
200 (2)..
66 Puran Chand v. Deepak Gosain ,

2007 (1) Punj LR 727 (730) (P&H).
67 Dwarkadas v. Rangilal Munna Lal ,

AIR 1953 Punj 289 (DB); Sadiq Hussain v. Co-operative Central Bank , Yeohmal,
AIR 1952 Nag 106 : ILR 1953 Nag 684.
68 Kashmir Singh v. Panchayat Samiti, Ferozpur , AIR 2004

SC 2438 (2440) :
(2004) 6 SCC 207 [
LNIND 2004 SC 487 ].
69 Suraj Ratan Therani v. Azamabad Tea Co. Ltd. ,

AIR 1955 NUC 2867 (Cal-DB); Mohammed Bux v. Gani Mohammad ,
AIR 1955 NUC 4652 (Raj-DB) : ILR
1954 Raj 197 .
70 Mohammed Bux v. Gani Mohammad ,

1954 Raj 191 .
71 Suraj Ratan Therani v. Azamabad Tea Co. Ltd. ,

AIR 1955 NUC 2867 (Cal-DB); Mohammed Bux v. Gani Mohammad ,
1954 Raj 191 .
72 Hazi Gulam Basheer v. Basheer Ahmed ,

AIR 1960 Mad 399 [
LNIND 1959 MAD 147 ] (400) : 1960 (2) Mad LJ 570.
Page 41 of 59
S .41 (A)
73 Hazi Gulam Basheer v. Basheer Ahmed ,

AIR 1960 Mad 399 [
LNIND 1959 MAD 147 ] (400) : 1960 (2) Mad LJ 570.
74 Shamsher Chand Bakshi v. Mehr Chand ,

AIR 1947 Lah 147 (FB).
75 Natabar Parichha v. Nirmal Charan ,

AIR 1952 Ori 75 [
LNIND 1951 ORI 55 ] (80); Baidyanath v. Alif Jan ,
AIR 1923 Cal 240 : 26 CWN 436 : 65 IC 245.
76 Ajay Kumar Gupta v. Smt. Usha Sharma, 2012 (117) RD 733 (754) (All) (DB)

AIR 1928 Mad 778 .

AIR 1928 Mad 778 ; Lakshman v. Vasudev ,
(1931) 33 Bom LR 356 ; Rajani Kanta v. Bashiram ,
AIR 1929 Cal 636 ; Mt. Kasturi Bibi v. Baliram ,
AIR 1923 Nag 15 .
79 Sheogobind v. Anwar Ali , (1929) Pat 305 ; Hanuman v. Abbas ,

AIR 1929 Oudh 193 .
80 Sheotahal v. Lal Narain,

(1930) AIR 422 ; K.V. Galliara v. U. Thet , AIR 1929 Rang 117 ; Jagmohan Das v.
Inder Prasad ,
AIR 1929 Oudh 160 ; Mt. Rasulan Bibi v. Nand Lal ,
AIR 1930 All 521 ; Abdulla Khan v. Musammat Bundi ,
(1912) 34 All 22 .
81 Amrita Lal v. Pratap Chand ,

AIR 1931 Cal 144 .
82 Haji Gulam Ahmad Mustafa Saheb v. K.T.A. Basheer Ahmad Dawood,

AIR 1960 Mad 399 [
LNIND 1959 MAD 147 ] (DB) :
(1960) 2 MLJ 570 .
83 (1894) 1 Ch. D. 25.
84 Muhammad Shafi v. Muhammad Said ,

(1930) 52 All 248 .
85 Kanchedilal v. Kanhai , (1932) 28 Nag LR 227; Sheogobind v. Anwar Ali ,

AIR 1929 Pat 305 ; Nageshar Prasad v. Raja Pateshri ,
(1915) 20 CWN 265 P.C.
Page 42 of 59
S .41 (A)
86 Sarupa v. Mt. Dhundan ,

AIR 1930 Lah 286 ; Shamsher Chand Bakshi v. Mehr Chand ,
AIR 1947 Lah 147 (FB); Dwarka Das v. Rangi Lal ,
AIR 1953 Punj 289 (290) (DB) : 55 Punj LR 132.
87 Mt. Rasulan v. Nand Lal ,

AIR 1930 All 521 .
88 Vyankapacharya v. Yamanasami , (1911) 35 Bom 269 ; Kondiba v. Nana , (1903) 27

Bom 408.
89 Chokhey Singh v. Jote Singh ,

(1909) 31 All 73 : 36 IA 38; Mohamad Sujat v. Mt. Chandbi ,
AIR 1927 Nag 41 .
90 C. Sundarammal v. Arunachala ,
AIR 1927 Mad 1138 [
LNIND 1926 MAD 405 ]; Dwarka Das v. Rangi Lal ,
AIR 1953 Punj 289 (290) (DB) : 55 Punj LR 132; Shamsher Chand v. Bakshi Mehr
Chand ,
AIR 1947 Lah 147 (FB) :
ILR (1947) Lah 749 .
91 Mt. Rasulan Bibi v. Nand Lal ,

AIR 1930 All 521 ; Mohmad Sujat v. Mt. Chandbi ,
AIR 1927 Nag 41 .
92 Merwanji Muncherji Cama v. The Secretary of State for India in Council ,

(1915) 19 CWN 1056 P.C.; Partap Chand v. Saiyida Bibi ,
(1901) 23 All 442 .
93 Muhammad Sulaiman v. Sakina Bibi ,

(1922) 44 All 674 .
94 Ballu Mal v. Ram Kishan ,

(1921) 43 All 263 .
95 Kokilambal v. Sundarammal ,
AIR 1925 Mad 902 [
LNIND 1924 MAD 199 ]; Kanhu Lal v. Palu Sahu ,
(1920) 5 Pat LJ 521 .
96 Crystal Developers v. Asha Lata Ghosh,

(2005) 9 SCC 375 [
LNIND 2004 SC 1032 ] (406) : AIR
2004 SC 4980 .
97 Gholam Sidhique v. Jogendra Nath ,

AIR 1926 Cal 916 ; Baidya Nath v. Alef Jan Bibi,
Page 43 of 59
S .41 (A)
AIR 1923 Cal 240 ; Khwaja Muhammad v. Muhammad Ibrahim ,

(1904) 26 All 491 .

(1923) 45 All 520 .
99 Mohmad Sujat v. Mt. Chandbi ,

AIR 1927 Nag 41 .
1 Kartar Singh v. Mt. Meher Nishan , (1935) 16 Lah 313 ; (Khanna paimash in the Punjab);
Muhammad Sulaiman v. Sakina Bibi ,
(1922) 44 All 674 ; Merwanji Muncherji Cama v. The Secretary of State for India in
Council ,
(1915) 19 CWN 1056 P.C.
2 Rajaram Ahair v. Beyas Singh ,

AIR 1958 Pat 537 (540) :
1958 BLJR 103 (
AIR 1936 Lah 816 :
AIR 1948 Mad 320 [
LNIND 1947 MAD 270 ]:
AIR 1934 All 197 relied on ).
3 Deep Singh v. Amrik Singh ,

2004 (2) Punj LR 687 (688); Govind Das (Dr) v. Smt. Shanti Bai,
(1972) 74 PLR 227 (SC); Ajit Singh v. Karam Singh ,
(2005) 1 Punj LR 88 (99) (P&H); Ishwar v. Chhander Bhan,
(2007) 4 PLR 431 (438) (P&H) (Parties not strangers).
4 Dahyabhai Chimanlal v. Ambalal Himatlal , AIR 1981

SC 1556 (1561).
5 Laxman Sakharam Salvi v. Balkrishna Balvant Ghatage ,

AIR 1995 Bom 190 [
LNIND 1994 BOM 647 ] (192, 193):
(1995) 2 Bom CR 678 [
LNIND 1994 BOM 647 ]; T. Bheem Reddy v. P. Laxmi Bai & Others,
2012 (4) ALD 618 :
2012 (5) ALT 345 (A.P.).

AIR 1995 Bom 190 [
LNIND 1994 BOM 647 ] (192, 193):
(1995) 2 Bom CR 678 [
LNIND 1994 BOM 647 ].
7 Ashrafi Devi v. Trilokchad ,

AIR 1965 Punj 140 : 66 Punj LR 1130.

AIR 1995 Bom 190 [
LNIND 1994 BOM 647 ] (192, 193):
Page 44 of 59
S .41 (A)
(1995) 2 Bom CR 678 [

LNIND 1994 BOM 647 ].
9 S.K. Singh (Dr.) v. Co-operative Tribunal, Hyderabad,

2009 (2) ALD 474 :
2009 (2) ALT 244 : 2009 (1) LS 405
10 Mollayya v. Krishnaswami ,
AIR 1925 Mad 95 [
(1895) 17 All 280 .
12 Jugmohan v. Indar Prasad ,

AIR 1929 Oudh 160 .
13 Ragho v. Dwarka ,
AIR 1924 Lah 738 .
14 Hanuman v. Abbas ,
AIR 1929 Oudh 193 .
15 Muhammad-din v. Mt. Sardar Bibi ,

AIR 1927 Lah 666 .
16 Mehdi Hasan v. Ram Ker ,

AIR 1982 All 92 (98).
17 Dwarka Das v. Rangi Lal ,

AIR 1953 Punj 289 (290) (DB) : 55 Punj LR 132; Shamsher Chand v. Bakshi Mehr
Chand ,
AIR 1947 Lah 147 (FB) :
ILR 1947 Lah 749 .
18 Laxmsan Sakharam Salvi v. Balkrishna Balvant Ghatage

,
AIR 1995 Bom 190 [
LNIND 1994 BOM 647 ] (192):
(1995) 2 Bom CR 678 [
LNIND 1994 BOM 647 ]; Dalgovind Mohapatra v. Ananthbandhu Naik ,
AIR 1954 Ori 244 [
LNIND 1954 ORI 14 ] (DB).
19 Laxmsan Sakharam Salvi v. Balkrishna Balvant Ghatage

,
AIR 1995 Bom 190 [
LNIND 1994 BOM 647 ] (191):
(1995) 2 Bom CR 678 [
LNIND 1994 BOM 647 ]; Dalgovind Mohapatra v. Ananthbandhu Naik ,
AIR 1954 Ori 244 [
LNIND 1954 ORI 14 ] (DB).
Page 45 of 59
S .41 (A)
20 Bal Singh v. Ravinder Singh ,

2005 (3) Punj LR 632 (634) (P&H-DB).
21 Dhian Singh v. Sheela Devi ,

2008 (1) Punj LR 801 (807) (P&H).
22 Mangi Lal v. Kailash Chand , AIR

1982 Raj 269 (271) :
1982 Raj LW 139 :
1982 Raj LR 325 .
23 Ram Jiei v. Deputy Director of Consolidation, Manpur ,

AIR 1981 NOC 31 (All).
24 Kashmir Singh v. Kali Charan ,

AIR 2009 (NOC) 3019 (P&H)
25 Drigpal Singh v. Wife of Laldhari Ojha ,

AIR 1985 Pat 110 (112, 113).
26 Ramsaran Mahto v. Harihar Prasad ,

AIR 1961 Pat 314 .
27 South Bihar Sugar Mills v. Maharaj Prasad Singh ,

AIR 1966 Pat 75 (DB).
28 Jit Singh v. Piara , AIR 2003 P&H 258 :

(2003) 3 Punj LR 292 .
29 Seshumull M. Shah v. Sayed Abdul Rashid ,

AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (278):
(1991) 1 Kar LJ 320 [
30 Seshumull M. Shah v. Sayed Abdul Rashid ,

AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (278):
(1991) 1 Kar LJ 320 [
31 Jokhan v. Jt. Director of Consolidation ,

AIR 1980 All 215 (220) :
1980 (6) All LR 283 .

(1978) 80 PLR 390 : 1978 Cur LJ (P&H) 295.
Page 46 of 59
S .41 (A)
33 Gurucharan Singh v. Surjit Kaur , AIR 2006 P&H 18 (20, 21) :

2006 AIHC 1017 :
2005 (3) Punj LR 232 .

(1978) 80 Pun LR 390 : (1978) Cur LJ (P&H) 295.
35 Shiv Dass v. Devki , AIR 1978 P&H 285 (288) : 1978 Cur LJ (P&H) 295.
36 Satish Chandra Maity v. Saila Bala Dassi ,

AIR 1978 Cal 499 [
LNIND 1978 CAL 296 ] (501): 82 CWN 991.
37 Madhab Sahu v. Hatkishore Sahu ,

AIR 1975 Ori 48 [
LNIND 1974 ORI 4 ] (49) (DB) :
ILR 1974 Cut 139 .

AIR 1975 Ori 48 [
LNIND 1974 ORI 4 ] (49) (DB) :
ILR 1974 Cut 139 .

AIR 1975 Ori 48 [
LNIND 1974 ORI 4 ] (52) (DB) :
ILR 1974 Cut 139 .
40 Beyas Singh v. Ramjanam Ahir ,

AIR 1961 Pat 16 : 1960 Pat LR 197 (ILR 26 All 490 relied on ).
41 Surenderanath v. Lohit Chandra ,

AIR 1975 Gau 56 (58).
42 Jangir Kaur (Smt.) v. Mohinder Singh ,

2007 (4) Punj LR 268 (P&H).
43 Sri Brahadambal Agency v. Ramaswamy ,

AIR 2002 Mad 352 [
LNIND 2001 MAD 688 ] (365).
44 Mohammad Ibrahim v. Mohd. Yusuf ,

(2007) 67 All LR 739 (All).
45 Baldev Singh v. Chhota Singh , AIR 2002 P&H 47 (51) : 2001 (3) ICC 673.
46 Gurmail Singh v. Udham Kaur , AIR 1999 P&H 300 (302, 303) :
1999 (122) Punj LR 747 .
Page 47 of 59
S .41 (A)
47 Manikchand Sampchand Shah v. Gangadhar Shanker Shete ,

AIR 1961 Bom 288 [
LNIND 1960 BOM 90 ]: 63 Bom LR 163.
48 Sheshmull M Shah v. Syed Abdul Rashid ,

AIR 1991 Kant 273 [
LNIND 1990 KANT 366 ] (279):
(1991) 1 Kar LJ 320 [
49 Raghunath Lala v. Mansa Annil ,

1964 Punj LR 230 (Punj).
50 Suni Central Board of Wakfs , Lucknow v. Devi Charan , 1995 All LJ 1759 (1762, 1763)
(All).
51 Thakur Krishna Chandramajiu v. Kanhya Lal ,

AIR 1961 All 206 [
LNIND 1960 ALL 61 ] (DB).
52 Amrit Kaur v. Recovery Officer ,

AIR 2012 (NOC) 418 (P&H)
53 Chittabala Kundu v. Sailen Behari Paul ,

AIR 1988 NOC 68 : 92 Cal WN 398 (DB).
54 Pandit Chuni Lal v. Financial Commissioner Revenue and Secretary to Government of

Punjab ,
2006 (1) Punj LR 309 (313) (P&H); Layak Ram v. Dharamwati , AIR 2010 P&H 95
(98) (Relying on AIR 1961 P&H 528) See also Ved Prakash Sarogi v. The Oriental Bank of Commerce,
(2006) 2 Punj LR 138 (P&H).
55 Hari Singh v. Sansari Devi, 2011 AIR CC 2927 (2929) (P&H).
56 Avtar Singh v. Hazura Singh , AIR 1984 P&H 211 (215).
57 Avtar Singh v. Hazura Singh , AIR 1984 P&H 211 (215); Sushma Kishandev Kaushal v.
Council for Tibetan Education ,
AIR 2006 HP 122 [
LNIND 2006 HP 29 ] (127) : 2006 (2) Shim LC 184.
58 Arjan Singh v. Thakar Singh ,

AIR 2007 (DOC) 85 : 2006 (3) Land LR 499 (P&H).
59 Shobha Ram v. Jawaharlal ,


AIR 1985 Pat 110 (114); Parbati Devi v. Kashmirilal Sarma ,
Page 48 of 59
S .41 (A)
AIR 1959 Cal 69 [

LNIND 1958 CAL 168 ].
61 Gurbaksh Singh v. Nikka Singh , AIR 1963

SC 1917 (1919) : (1963) Supp (1) SCR 55 :
(1996) 5 SCC 524 [
62 Atal Shrivastava v. Devprasad, AIR 2012 Chh 117 (123) (DB)
63 Angammal v. Venkata , (1903) 26 Mad 509.
(1931) 33 Bom LR 356 .
65 Pateshri v. Nageshar ,
(1911) 8 ALJ 358 on appeal Nageshar v. Raja Pateshri ,
(1916) 20 CWN 265 P.C.
66 Luchman v. Kalli Churan ,

(1878) 19 WR 292 .
67 Chunder Coomar v. Hurbuns ,

(1889) 16 Cal 137 .
68 Shangara v. Krishnan , (1892) 15 Mad 267.
69 Nand Kishore v. Ahmed Ata ,

(1896) 18 All 69 .
70 Amir Jahan v. Khadim Husain ,

AIR 1931 Oudh 253 .
71 Khawaja Muhammad v. Muhammad Ibrahim ,

(1904) 26 All 490 .
72 Niras Purbe v. Most. Tetri ,

(1915) 20 CWN 103 .
73 Venkata v. Gatham,
(1914) 27 MLJ 580 [
LNIND 1914 MAD 254 ].
74 Rajani Kanta v. Bashiram ,

AIR 1929 Cal 636 ; Mohmad Sujat v. Mt. Chandbi ,
AIR 1927 Nag 41 .
Page 49 of 59
S .41 (A)
75 Rajani Kanta v. Bashiram ,

AIR 1929 Cal 636 .
76 Shankar v. Daooji , AIR

1931 PC 118 .
77 Mathura Prasad v. Anandi

Kumar ,
(1923) 21 ALJ 498 ; Mul Raj v. Fazal Imam ,
(1923) 45 All 520 ; Mathura Prasad v. Mt. Anandi ,
AIR 1924 All 63 ; Mubarak-un-Nissa v. Muhammad Raza Khan ,
(1924) 46 All 377 ; P.L.T.A.R. Chettyar a firm v. Maung Kyaing , AIR 1929 Rang 333
; Mathura Prasad v. Anandi ,
AIR 1924 All 63 ; Mul Raj v. Fazal Imam ,
(1923) 45 All 520 ; Makkama v. Masambi ,
(1925) 27 Bom LR 208 ; Muhammad din v. Mt. Sardar Bibi ,
AIR 1927 Oudh 448 ; Khwaja Muhammad v. Muhammad Ibrahim ,
(1904) 26 All 491 ; Niras Purbe v. Most Tetri ,
(1915) 20 CWN 103 ; Aunada v. Nilphamari,
(1921) 26 CWN 436 .
78 Mohammad Ibrahim v. Mohd. Yusuf , 2007 (4) All LJ 429 (432) :

AIR 2007 (NOC) 1923 (All).
79 Mohammad Ibrahim v. Mohd. Yusuf , 2007 (4) All LJ 429 (432, 433) :
AIR 2007 (NOC) 1923 (All).
80 B. Sitaram Rao v. Bibhisano ,

AIR 1978 Ori 222 [
LNIND 1978 ORI 25 ] (223, 224); Ladhibai v. Ravji Nagashi ,
AIR 1950 Kutch 34 ; Velutha Kunju v. Neelacantan Nair,
1950 KLT 23 ; Sheik Hussain Muhinuddin v. Phool Chand Harichand ,
AIR 1952 Nag 64 : 1951 NLJ 596 ; Deo Sharma v. Chartered Bank of India ,
AIR 1955 NUC 1698 (DB) (All); Beyas Singh v. Ramjanam Ahir ,
AIR 1961 Pat 16 : 1960 Pat LR 197 ; Macneil & Co. v. Saroda Sundari Debi ,
AIR 1929 Cal 83 ; Ballu Mal v. Ram Kishan ,
AIR 1921 All 311 : (1921) 43 All 263 : 64 IC 14; Motimul v. Visalakshi Ammal ,
AIR 1965 Mad 432 [
LNIND 1964 MAD 373 ]; Ram Kissan Agarwalla v. Muktinath Sarma ,
AIR 1956 Ass 154 .
81 B. Sitaram Rao v. Bibhisano ,

AIR 1978 Ori 222 [
LNIND 1978 ORI 25 ] (223, 224); (Macneil & Co. v. Saroda Sundari Debi ,
AIR 1929 Cal 83 ; Ballu Mal v. Ram Kishan ,
AIR 1921 All 311 ; Motimul v. Visalakshi Ammal ,
AIR 1965 Mad 432 [
LNIND 1964 MAD 373 ]: 78 MLW 182 : (1965) 2 Mad LJ 371.
82 Velutha Kunju v. Neelacantan Nair,

1950 KLT 23 ; The Catholic Mission Presentation Convent v. Subbaanna
Goverdhan ,
AIR 1948 Mad 320 [
LNIND 1947 MAD 270 ]:
1948 1 MLJ 11 .
83 Kartar Singh v. Gurdial Singh , 2008 (3) 151 Punj LR 395 (399) (P&H).
Page 50 of 59
S .41 (A)
84 Zorawar Singh v. Sarwan Singh , 2002 (2) RLW (SC) 335

(338) :
2002 (2) CCC 98 (SC) :
(2001-2) Punj LR 580 :
(2002) 4 SCC 460 [
LNIND 2002 SC 258 ] ; Bahhadur Singh v. Lakhwinder Singh ,
(2002) 2 Punj LR 83 (P&H); Ram Dass v. Sisha Singh ,
(2001-3) Punj LR 544 (549) (P&H).
85 Zorawar Singh v. Sarwan Singh , 2002 (2) RLW (SC) 335 (338) :
2002 (2) CCC 98 (SC) :
(2001-2) Punj LR 580 :
(2002) 4 SCC 460 [
LNIND 2002 SC 258 ].
86 Zorawar Singh v. Sarwan Singh , 2002 (2) RLW (SC) 335 (338) :
2002 (2) CCC 98 (SC) :
(2001-2) Punj LR 580 :
(2002) 4 SCC 460 [
2002 SC 1711 .
87 Amarjit Singh v. Bhag Singh , (2002-1), Punj LR 589 (592).
88 Sukha Singh v. Jaswinder Singh ,

(2002-1) Punj LR 276 (279) (P&H).
89 Khushal Chand Bhagchand v. Trumbak ,

AIR 1947 Bom 49 : 48 Bom LR 586; Sadiq Hussain v. Co-op. Central Bank ,
Yeotmal ,
AIR 1952 Nag 106 : ILR 1953 Nag 684 (Inspection of Index Register for 12 years of
Registrar’s office not enough).
90 Ramsaran Mahto v. Harihar Prasad ,

AIR 1961 Pat 314 .
91 Asharfi Devi v. Trilok Chand ,

AIR 1965 Punj 140 : 66 PLR 1130.
92 Samai Sing v. Hukam Singh Chauhan ,

AIR 2007 NOC 2054 (Utr).
93 Mangat Lal v. Ghasi Khan ,

AIR 1929 All 800 ; Vaman v. Tikaram ,
(1927) 29 Bom LR 471 ; Lalit Mohan v. Lachmi Raj Kaur ,
AIR 1944 Oudh 213 (220); Puranmal v. Shiv Pal,
AIR 1935 All 234 ; Dwarika Halwai v. Sitla Prasad ,
AIR 1940 All 256 ; Nand Lal v. Sunder Lal ,
AIR 1944 All 17 (23) (DB).
94 Jote Singh v. Ram Das Mahto , AIR

1996 SC 2773 (2773):
(1996) 5 SCC 524 [
Page 51 of 59
S .41 (A)
LNINDORD 1996 SC 189 ] ; Alukmonee Dabee v. Banee Madhub Chunkerbutty ,

(1879) ILR 4 Cal 677.
95 Jote Singh v. Ram Das Mahto , AIR 1996

SC 2773 (2773) :
(1996) 5 SCC 524 [
96
Section 66, Civil Procedure Code 1908 ;S. 182,Bombay Land Revenue Code, Act V of 1879; S. 36 of
Act XI of 1859, Bengal Revenue Sale Law; S. 38 Madras Revenue Act II of 1864; S. 173, (2),Bengal Tenancy Act.
97 Kandasami v. Nagalinga , (1913) 36 Mad 564.
98 Manji v. Hoorbai ,
(1910) 12 Bom LR 1044 [
LNIND 1910 BOM 110 ].
1 Shafiq-Ullah Khan v. Sami-Ullah Khan ,

(1930) 52 All 139 ;
AIR 1929 All 943 ; Gendamal v. Laxman ,
AIR 1945 Nag 86 (DB); Kanshi Ram v. Kesho Ram ,
AIR 1961 Punj 299 (301) :
(1997) 1 Civ LJ 304 (HP).
2 Hussain Banu v. Shivnarayan ,

AIR 1966 MP 307 [
LNIND 1964 MP 77 ] (311) :
1966 Jab LJ 1112 .
3 Chathar v. Kuth Sankarn Nair , (1957) 2 Mad LJ 603 (Mad).
4
(1893) 20 Cal 296 .
5 (1860) 3 HLC 829.
6 Sarat Chunder Dey v. Gopal Chunder Laha ,

(1893) 20 Cal 296 , 19 IA 203; Dawson’s Bank Ltd. v. Menkwa Kabushiki Kaisha,
(1935) 61 CLJ 239 P.C.
7 (1903) 26 Mad 509.
8 Ragho v. Dwarka ,
AIR 1924 Lah 738 .
9 Gholam Sidhique v. Jogendra Nath ,

AIR 1926 Cal 916 ; Baidya Nath v. Alef Jan Bibi ,
AIR 1923 Cal 240 .
Page 52 of 59
S .41 (A)
10 Vaman v. Tikaram ,
(1927) 29 Bom LR 471 .

AIR 1928 Mad 778 .
12 Mt. Sahodra v. Badri Prasad ,

AIR 1929 All 737 .
13 Appa Dhond v. Babaji Krishnaji , (1922) 46 Bom 85.
14 Lal Mohan Prasad v. Govind Sahu ,

AIR 1940 Pat 620 : 188 IC 417; Prabati Devi v. Kashmirilal Sarma ,
AIR 1959 Cal 69 [
LNIND 1958 CAL 168 ]; Gauri Shankar Singh v. Jwalamukhi Devi ,
AIR 1962 Pat 392 (395) (DB) (Pat); Inbamathi v. Ramar , 2007 (2) Mad LJ 927
(944, 945) (Mad); Tejbir Singh v. Darshan Kumar,
AIR 2009 (NOC) 2993 (P&H).
15 Ramsaran Mahton v. Harihar Prasad ,

AIR 1961 Pat 314 ; Inbamathi v. Ramar , 2007 (2) Mad LJ 927 (944, 945) (Mad).
16 Deba Kanta Bhuyan v. Dilip Kumar Ray, 2012 (3) Gauhati LR 343 (348) (Gauh)
17 Mulji v. Macleod ,
(1903) 5 Bom LR 991 ; Mt. Sahodra v. Badri Prasad ,
AIR 1929 All 737 .
(1931) 33 Bom LR 356 ; Mahdeo v. Ganeshram ,
AIR 1928 Nag 308 .
19 Mallappa Adiveppa Hadpad v. Rudrawwa ,

2003 (8) AIC 495 (498) (Kar); Inbamathi v. Ramar , 2007 (2) Mad LJ 927 (944, 945)
(Mad).
20 Nilkamal v. Kamakshya ,
AIR 1928 Cal 539 ; Sultan Begam v. Debi Prasad ,
(1908) 30 All 324 ; Vaman v. Vasudev , (1899) 23 Bom 73 ; Khirode Chandra v.
Saroda Prosad , 12 CLJ 525.
21 Mallappa Adiveppa Hadpad v. Rudrawwa ,

2003 (8) AIC 495 (498) (Kar).

(1923) 15 All 520 .
Page 53 of 59
S .41 (A)
23 Jamna Das v. Uma Shankar ,

(1914) 36 All 308 .
24 Ananda v. Parbati, (1906) 4 CLJ 198 ; Beri Ram v. Kunda Lal ,

(1886) 14 Cal 189 , followed ; see also Parbati Devi v. Kashmirilal Sarma ,
AIR 1959 Cal 69 [
LNIND 1958 CAL 168 ].
25 Nafar Chandra v. Shukur Sheikh ,

(1919) 46 Cal 189 : 45 IA 183.
26 Saheb Rao v. Jaiwantrao ,

(1933) 35 Bom LR 816 P.C.; see Sailendra Nath Das v. Saroj Kumar Das, (1935)
61 CLJ 154 P.C.
27 Chittabala Kundu v. sailen Behari Paul ,

AIR 1988 NOC 68 : 92 Cal WN 398 (DB).
28 Faruka Begum Samadali Khan v. Dnyaneshwar Uttamrao Patil ,

2007 (5) Bom CR 403 [
LNIND 2007 AUG 145 ] (405) (Bom).
29 Suraj Rattan v. Azamabad Tea Co.

AIR ,
1965 SC 295 (299) :
(1964) 65 SCR 192 ; Gurucharan Singh v. Surjit Kaur , AIR 2006 P&H 18 (20, 21) :
2006 AIHC 1017 :
2005 (3) Punj LR 232 .
30 Gurucharan Singh v. Surjit Kaur , AIR 2006 P&H 18 (21) :

2006 AIHC 1017 :
2005 (3) Punj LR 232 .
31 Daryao Singh v. Halkibai ,

AIR 1976 MP 194 [
LNIND 1976 MP 34 ] (197) (DB):
1976 Jab LJ 583 ;
(1976) 21 MPLJ 487 ; Girdharilal v. Fatechand ,
AIR 1955 MB 148 (DB) :
ILR 1955 MB 239 : 1955 MB LJ 234.
32 Daryao Singh v. Halkibai ,

AIR 1976 MP 194 [
LNIND 1976 MP 34 ] (199) (DB):
1976 Jab LJ 583 :
(1976) 2 MPLJ 487 .
33
AIR 1939 Pat 462 : 184 IC 113.
34 (1854) 6 Moo Ind. App. 53.

Page 54 of 59
S .41 (A)
35 Bhramar Pradhan v. Govinda Mahapatra ,

AIR 1983 Ori 36 (39).
36 Syed Abdul Khader v. Rami Reddy , AIR

1979 SC 553 (563) :
(1979) 2 SCC 601 [
LNIND 1978 SC 352 ].
37 AIR
1980 SC 727 (732):
(1980) 3 SCC 72 [
LNIND 1979 SC 501 ] ; see also (Keshab Chandra Nayak v. Laxmidhar Nayak ,
AIR 1993 Ori 1 [
LNIND 1992 ORI 8 ] (3): (1972) 7A CLT 539 (FB)).
38 AIR
1974 SC 171 (572):
(1974) 1 SCC 3 [
LNIND 1973 SC 313 ] ; Syed Abdul Khader v. Rami Reddy , AIR
1979 SC 553 (563):
(1979) 2 SCC 601 [
LNIND 1978 SC 352 ] ; Valliammal v. Subramaniam , AIR 2004
SC 4187 (4191) :
(2004) 7 SCC 233 [
LNIND 2004 SC 876 ] ; Thakur Bhan Singh (Dead) by LRs v. Thakur Kan Singh ,
AIR
1980 SC 727 :
(1980) 3 SCC 72 [
LNIND 1979 SC 501 ] ; Binapani Paul v. Pratima Ghosh ,
2007 (6) SCALE 398 [
LNIND 2007 SC 560 ] :
(2007) 6 SCC 100 [
LNIND 2007 SC 560 ] ; V. Shankaranarayana Rao v. Leelavathy , AIR 2007
SC 2637 (2639) :
(2007) 10 SCC 732 [
LNIND 2007 SC 2791 ]. see also Gopadibai v. The State of Madhya Pradesh , AIR
1980 SC 1040 (1041, 1042:
(1980) 2 SCC 327 ; Raj Ballav Das v. Haripada Das ,
AIR 1985 Cal 2 [
LNIND 1983 CAL 163 ] (11); S.R. Gaitonde v. J.J. Fonseca ,
AIR 1976 Goa 11 (16); Premsukh v. Hanumandas,
1969 Raj LW 520 ; Krishan v. Ganpathi ,
AIR 1955 Mad 648 ; Gangadara Ayyar v. Subramania ,
AIR 1949 FC 88 (92); K.P.N. Mullah v. State of W.B. , AIR
1974 SC 658 (663):
(1974) 2 SCC 338 ; N.C. Modak v. K.M. Modak ,
AIR 1962 Pat 160 (DB); Satya Dev Prasad v. Chandr Joti Devi ,
AIR 1966 Pat 110 .
39 Valliammal v. Subramaniam , AIR 2004

SC 4187 (4191) :
(2004) 7 SCC 233 [
LNIND 2004 SC 876 ].
40 State v. Subimal Kumar ,

AIR 1982 Cal 251 [
LNIND 1981 CAL 173 ] (253); Siddique Fatima v. Mahmood Hasan , AIR
1978 SC 1362 ; Union of India v. Moksh Builders and Financiers Ltd. , AIR
1977 SC 409 (413) : AIR
1964 SC 880 .
Page 55 of 59
S .41 (A)
41 Radheyshyam v. Maharaj Bahadur Singh , AIR 1982 Cal (571) (573) (DB); Jaydayal
Poddar v. Mst. Bibi Hazara , AIR
1974 SC 171 :
(1974) 1 SCC 3 [
LNIND 1973 SC 313 ] ; Thakur Bhan Singh (Dead) by LRs v. Thakur Kan Singh ,
AIR
1980 SC 727 :
(1980) 3 SCC 72 [
LNIND 1979 SC 501 ] ; Binapani Paul v. Pratima Ghosh ,
2007 (6) SCALE 398 [
LNIND 2007 SC 560 ] :
(2007) 6 SCC 100 [
LNIND 2007 SC 560 ] ; V. Shankaranarayana Rao v. Leelavathy , AIR 2007
SC 2637 (2639) :
(2007) 10 SCC 732 [
LNIND 2007 SC 2791 ];

SC 4187 (4191) :
(2004) 7 SCC 233 [
LNIND 2004 SC 876 ].
43 V. Shankaranarayana Rao v. Leelavathy , AIR 2007

SC 2637 (2639) :
(2007) 10 SCC 732 [
LNIND 2007 SC 2791 ].
44 V. Shankaranarayana Rao v. Leelavathy , AIR

2007 SC 2637 (2639, 2640) :
(2007) 10 SCC 732 [
LNIND 2007 SC 2791 ] (Case remanded).
45 Radheyshyam v. Maharaj Bahadur Singh , AIR 1982 Cal (571) (573, 574)(DB); Union of
India v. Moksh Builders and Financiers Ltd. , AIR
1977 SC 409 :
(1977) 1 SCC 60 [
LNIND 1976 SC 394 ].
46 Bhupendrakumar R Parik v. M. K. Lakshmi ,

AIR 1990 Mad 46 [
LNIND 1989 MAD 81 ] (59):
(1989) 2 LW 294 (DB).
47 Theresa Vas v. Allan J. Veigas , 2007

AIHC 3458 (3467) (Kant).
48 Girindra Nath Mukherjee v. Soumen Mukherjee ,

AIR 1988 Cal 375 [
LNIND 1988 CAL 73 ] (383, 384, 385).
49 Union of India v. Moksh Builders and Financiers Ltd , AIR

1977 SC 409 :
(1977) 1 SCC 60 [
Page 56 of 59
S .41 (A)
LNIND 1976 SC 394 ] ; (Bhramar Pradhan v. Govinda Mahapatra ,

AIR 1983 Ori 36 (38).
50 Atindra N. Chakrabarty v. Anil K. Chakravarty , 2006 (1) Cal HN 521 (524) (Cal-DB).

AIR 1983 Ori 36 (39).

AIR 1983 Ori 36 (39).\

AIR 1983 Ori 36 (39).

AIR 1985 Pat 110 (113).
55 Ghpadibai v. The State of Madhya Pradesh , AIR

1980 SC 1040 (1041, 1042) :
(1980) 2 SCC 327 .
56 Syed Fida v. Kanij Fatima ,


SC 4187 (4192) :
(2004) 7 SCC 233 [
LNIND 2004 SC 876 ].
58 Anadinath Mukherjee v. Biswanath Mukherjee ,

AIR 1982 NOC 109 (Cal).
59 Sushil Bose v. Sefali Bose ,

AIR 1981 NOC 36 (Cal).
60 Ragho Prasad Gupta v. Krishna Poddar AIR ,

1969 SC 316 :
(1969) 1 SCR 834 ; Radheyshyam v. Maharaj Bahadur Singh ,
AIR 1982 Cal 571 [
LNIND 1981 CAL 276 ] (575) (DB).
61 S.R. Gaitonde v. J.J. Fonseca ,

AIR 1976 Goa 11 (16).
62 S.R. Gaitonde v. J.J. Fonseca ,

AIR 1976 Goa 11 (16).
Page 57 of 59
S .41 (A)
63 Chiranjilal v. Noratmal , AIR

1975 Raj 130 (133):
(1974) 7 WLN 866 .
64 Syed Abdul Khader v. Rami Reddy , AIR

1979 SC 553 (561, 562) :
(1979) 2 SCC 601 [
LNIND 1978 SC 352 ].
AIR 1975 MP 115 [
LNIND 1974 MP 59 ] (120):
1975 Jab LJ 57 :
(1974) 19 MPLJ 906 .
66 D. Damodaran v. D. Leeavathi , AIR, 1975 Mad 278 (280, 281) : 88 Mad LW 54; See also
Girdharilal v. Fatechand ,
AIR 1955 MB 148 (DB) :
ILR 1955 MB 239 : 1955 MB LJ 234.
67 Binapani Paul v. Pratima Ghosh , AIR

2008 SC 543 (553):
(2007) 6 SCC 100 [
LNIND 2007 SC 560 ] (Reversing 2004 (1) Cal HN 185).
68 M.S.M.S. Maracayar v. Abdul Majeed ,

AIR 1975 Mad 95 (97, 98) : (1975) 1 Mad LJ 47.
69 M.S.M.S. Maracayar v. Abdul Majeed ,

AIR 1975 Mad 95 (98, 99) : (1975) 1 Mad LJ 47.
70 Gangadara Ayyar v. Subramania ,

AIR 1949 FC 88 (92); K.P.N. Mullah v. State of W.B. , AIR
1974 SC 658 (663) :
(1974) 2 SCC 338 .
71 Vidyadhar Krishnarao Murgi v. Vsman Gani Saheb Korkani , AIR

1974 SC 658 (659) :
(1974) 2 SCC 338 .

1974 SC 658 (659) :
(1974) 2 SCC 338 .
73 Girdharilal v. Fatechand ,
AIR 1955 MB 148 (155) (DB) :
ILR 1955 MB 239 : 1955 MBLJ 534.
74 Girdharilal v. Fatechand ,
AIR 1955 MB 148 (155) (DB) :
ILR 1955 MB 239 : 1955 MBLJ 534.
Page 58 of 59
S .41 (A)

1974 SC 658 (663) :
(1974) 2 SCC 338 .
76 Valliammal v. Subramaniam , AIR

2004 SC 4187 (4191, 4192) :
(2004) 7 SCC 233 [
LNIND 2004 SC 876 ].
77 Rama Kanta Jain v. M.S. Jain ,

AIR 1999 Del 281 [
LNIND 1999 DEL 238 ] (290):
(1999) 50 DRJ 232 [
LNIND 1999 DEL 238 ].
78 Parakkate Shankaran Keshavan v. T.A. Sukumaran ,

AIR 1997 Bom 381 [
LNIND 1997 BOM 131 ] (384, 385).
79 Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah ,

AIR 1996 Guj 147 [
LNIND 2007 GUJ 151 ] (152).
80 Andalammal v. Rajeswari Vedachalam ,

AIR 1985 Mad 321 [
LNIND 1984 MAD 398 ] (329) (DB) :
(1985) 98 Mad LW 81 .
81 Andalammal v. Rajeswari Vedachalam ,

AIR 1985 Mad 321 [
LNIND 1984 MAD 398 ] (329) (DB) :
(1985) 98 Mad LW 81 .
82 Raj Narain v. Baij Nath ,

AIR 1984 Del 155 [
LNIND 1983 DEL 180 ] (157, 158) : (1983) 2 Ren CR 92.

AIR 1984 Del 155 [
LNIND 1983 DEL 180 ] (159) : (1983) 2 Ren CR 92.
84 Vishwanath Ramchandra Iparkar v. Bhanudas Iparkar , 1987 (Supp) SCC 625.
85 Ramasamy Chettiar v. Adaikkammai ,

AIR 1960 Mad 341 [
LNIND 1959 MAD 201 ].
86 Panika Bhoi v. Kunu Bariha,

2011 (105) AIC 686 (Ori).
Page 59 of 59
S .41 (A)

AIR 1984 Del 155 [
LNIND 1983 DEL 180 ] (157) : (1983) 2 Ren CR 92. See also Nagamma v. G.
Kamalamma ,
2008 (1) Andh LT 281 (286) (AP)
88 Rajesh Kumar Agrawal v. Virendra Kumar Agrawal ,

AIR 1994 All 135 [
LNIND 1993 ALL 211 ] (141) : (1994) All CJ 79.
89 Nagamma v. G. Kamalamma ,
2008 (1) Andh LT 281 (286) (AP).
90 Panika Bhoi v. Kuni Bariha,

2011 (105) AIC 686 (Ori).
91 Sham Singh v. Union of India ,

AIR 1980 NOC 153 (P&H).
92 Niranjan Kaur v . Financial Commissioner, Revenue, Punjab , AIR 2011 P&H 1 (11) (FB)
:
2011 (1) Punj LR 48
93 Swaminatha Pillai v. Krishna Padyachi ,

AIR 1942 Mad 28 [
LNIND 1941 MAD 351 ]:
(1941) MLJ 601 .
94 Bimbadhar Rout v. Kuna Senapati ,

AIR 1995 Ori 258 [
LNIND 1995 ORI 187 ] (260).
End of Document
Darashaw Vakil
S. 42.
Where a person transfers any immovable property, reserving power to
revoke the transfer, and subsequently transfers the property for
consideration to another transferee, such transfer operates in favour of such
transferee (subject to any condition attached to the exercise of the power) as
a revocation of the former transfer to the extent of the power.
Illustration
A lets a house to B , and reserves power to revoke the lease if, in the opinion of a
specified surveyor, B should make a use of it detrimental to its value. Afterwards A , thinking that such a use has been
made, lets the house to C . This operates as a revocation of B ’s lease subject to the opinion of the surveyor as to B ’s use
of the house having been detrimental to its value.
End of Document
S. 42. (A)
Darashaw Vakil
COMMENTS
Scope and application. —The section deals with implied revocation of a power to revoke expressly
reserved to the transferor on a transfer of immoveable property. So that where a man executes a subsequent
transfer to another of the same property for consideration such transfer operates as exercise of such power. The
section is founded on 27 Eliz., c. 4, Section 5.
Power of revocation. —A power of revocation may be conferred in an instrument on the executant

either by deed or will. It is with the former class with which the section deals. It may be an absolute or a qualified
power capable of being exercised with the consent of a third person. Writing is necessary to create the power. It
may be reserved by the deed of transfer or by a document of the same date. It may be interlined. To the transfer an
exercise of a power of revocation is regaining a lost dominion. The inclusion of it is to be deprecated where
settlements are made for the education or advancement of children. It may extend to the whole or a part. The
exercise of the power must not be illegal or void or transgress the rule of perpetuity. There are instances in which
settlements irrevocable in form have been permitted to be revoked by the Courts on the ground that a power of
revocation ought to have been inserted. A settlement made by a father and son contained no power of revocation.
Each had a wife and large family and each declared that had he been aware of the effect of the deed he would not
have executed it. It was held that under the circumstances the deed must be rectified by adding a power of
revocation. 95
Dohlidars cannot alienate the property by way of sale, mortgage or a permanent lease nor such lease confers any
right on the lesee. 96
By a marriage settlement of the wife’s property a general power of appointment by will was given to the wife. On her
pre-deceasing her husband without issue and in default of appointment, in trust for the next of kin of the wife
excluding the husband. But if the wife survived then, in default of children, in trust for the wife absolutely. The wife
contracted debts and there was no possibility of issue. Held, upon the application of the wife, with the approbation
of the husband, that the next of kin being mere volunteers the corpus might be applied in payment of debts. 97 In
order to support a voluntary settlement it must be shown that unusual provisions are brought to the notice of and
understood by the settlor. A power of revocation is not essential to the validity of such a settlement. Whether there
should be a power of revocation or not must depend upon circumstances, and it cannot be laid down as a general
rule that such a deed would be voidable unless it contained a power of revocation. 98 The power must be expressly
reserved, otherwise the deed would be treated as irrevocable. Nor is a voluntary deed of settlement voidable by the
settlor merely because it does not contain a power of revocation. 99 But sometimes deeds are found containing a
Page 2 of 3
S. 42. (A)
clause of revocation with the consent of a third person. In such a case, creditors cannot assail them.
Leases and mortgages. —As the illustration shows, a power to lease for any number of years would
operate as a power of revocation; so also an unlimited power to mortgage but not a power to charge for a specified
amount.
Forcing the revocation. —A creditor may under Section 53 of this Act adopt proceedings to set aside a
settlement, even though it be expressed as irrevocable, and compel a settlor to revoke the settlement if it be
expressed to be revocable. Again, under Section 52, clause 2, sub-clause (b) of the Presidency Towns Insolvency
Act, the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of
property might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or
before his discharge, shall comprise the property of the insolvent and would therefore vest in the Official Assignee.
Under Section 17 of the Presidency Towns Insolvency, wherever situate, shall vest in the Official Assignee. 1 The
Official Assignee could compel the exercise of a power of revocation possessed by a debtor for the benefit of the
general body of creditors. It is now well settled that where a tenancy for life and ultimate reversion are vested in one
and the same person there being intervening interests or limitations, and there is a power of appointment given to
that person which might defeat his own interest, then if he becomes bankrupt or assigns his property for the benefit
of his creditors, that power is not extinguished but he is not allowed to exercise it so as to defeat the interest of his
trustee in bankruptcy or of his assignee. The trustee in bankruptcy could not give his consent without the sanction
of the Court of Bankruptcy. 2 But where a debtor has a general power of appointment, his trustee in liquidation has
no power after his death to appoint the property, the subject of the power. 3
Express revocation. —A trust which is made revocable may be extinguished by express revocation
under
Revocation of gift. —See under Section 126,infra .
In view of the provisions of

Sections 42 and
126 of the
T.P. Act , a deed of gift can be revoked if there is an agreement for revocation.4
Transfer by unauthorised person who subsequently acquires interest in property transferred.
95 Welman v. Welman , (1880) 15 Ch. Div. 570.

Page 3 of 3
S. 42. (A)
96 Ghisa Ram v. Surat Singh ,

(2003–3) Punj LR 846 (849) (P&H); Sittal Dass v. Financial Commissioner,
Haryana ,
1989 PLJ 148 (DB) (P&H).
97 Paul v. Paul , (1880) 15 Ch. D. 580; Everitt v. Everitt , LR 10 Eq. 405; Prideaux v.
Lonsdale , (1863) 4 Giff. 159 : 66 ER 661; Dutton v. Thompson , (1883) 23 Ch. D. 278.
98 Phillips v. Mullings , (1871) 7 Ch. App. 244.
99 Henry v. Armstrong , (1881) 18 Ch. D. 668.
1 In re Jewandas Jhawar ,
(1913) 40 Cal 78 ; Official Assignee, Bombay v. Registrar, Small Causes Court ,
Amritsar,
(1910) 37 Cal 418 : 37 IA 80; In re Ganeshdas Panalal , (1908) 32 Bom 198.
2 In re Cooper , (1884) 27 Ch. D. 565.
3 Nichols v. Nixey , (1885) 29 Ch. D. 1005.
4 Balai Chandra Parul v. Durga Bala Dasi ,

AIR 2004 Cal 276 [
LNIND 2004 CAL 301 ] (292): (2006) 1 Cal LT 403.
End of Document
Darashaw Vakil
S. 43.
Where a person 5 [fraudulently
or] erroneously represents that he is
authorised to transfer certain immovable property and professes to transfer
such property for consideration, such transfer shall, at the option of the
transferee, operate on any interest which the transferor may acquire in such
property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option.
Illustration
A , a Hindu who has separated from his father B , sells to C three fields, X , Y and Z ,
representing that A is authorised to transfer the same. Of these fields Z does not belong to A , it having been retained by B
on the partition; but on B ’s dying A as heir obtains Z . C, not having rescinded the contract of sale, may require A to deliver
Z to him.
End of Document
S. 43. (A)
Darashaw Vakil
COMMENTS
Legislative changes. —By Section 13 of Act 20 of 1929, after the word "person" the words
"fraudulently or" have been inserted. The word "erroneously" was construed to include all representations, whether
tainted with fraud or not. 6 To render the meaning clear the section has been altered as above.

"Clause 12, Section 43. — Clause 10, Section 39. — Section 39 is intended to protect persons who are
entitled to receive maintenance or for whom provision is made for advancement or marriage from the profits of any
immoveable property. The section provides that such a right can be enforced against a transferee of the proerty, if the
transfer has been made with the intention of defeating the right and transferee has notice of the intention. The Courts have,
therefore, always required proof of the intention of the part of the transferor and also of notice of the intention to the
transferee. 7 The illustration to the section is not consistent with the section itself and does not make any reference to the
intention of the transferor. In actual practice it is impossible to adduce proof of mere intention. As stated in 12 Bom LR 1075
at pp. 1077 and 1078, in order to enable such proof to be adduced, a transferor must have announced his fraudulent
intention of defeating the rights of persons entitled to maintenance and the transferee must have heard him doing so. As it
is desirable to protect persons entitled to maintenance or for whom provisions for advancement has been made from
improvident holders of the property, the reference to the transferor’s intention should be omitted from the section, and the
section should be amended accordingly.
Section 43 refers to a person making an erroneous representation that he is authorized to transfer certain
immoveable property. The underlying principle is also applicable to a case when the representation is fraudulent.
The expression "erroneously" has in fact, been construed to include all representations whether tainted or untainted
with fraud (ILR 7 All 864 : 20 Cal 296). It is however, desirable to make the meaning clear by using the word
"fraudulently" along with the word "erroneously."
The section also provides that a transfer by a person erroneously representing that he is authorized to make it
operate on any interest acquired by such person in the property at any time during which the contract of transfer
subsists. It embodies what is known as the principle of the "estate feeding the estoppel." The words "during which
the contract of transfer subsists" are appropriately used and are clearly intended to mean that it is at the option of
the transferee either to enforce the transfer or to repudiate the contract. In ILR 18 Mad 492, the Madras High Court
has laid down in general terms that the contract of transfer subsists so long as the decree obtained in a suit to
enforce a transfer has not been fully satisfied and that until then the transferee is entitled to claim the benefit of any
subsequent acquisition of interest in the property by the transferor. This does not appear to us to be sound
although, having regard to the terms of the decree which was passed in that suit, the decision itself cannot be said
Page 2 of 45
S. 43. (A)
to be incorrect. Once a decree has been passed in a suit brought on the transaction as a completed transfer, the
contract must be taken to have merged in the decree whereupon new rights arise not under the contract but under
the decree.
With a view to meet the observations of the Madras High Court we think that the following paragraph should be
added to the section after the words "till the contract of transfer subsists," viz. —
"Where a suit is brought by the transferee to enforce his rights under the transfer, the transferee shall be entitled to
claim any interest which the transferor my acquire in such property at any time prior to the passing of any decree in
such suit, from which no appeal lies, and not thereafter."
Scope and application.—There must be an estoppel by
1. Representation.
2. That representation must be fraudulent or erroneous.
3. It must be to the effect that the person making the representation is authoriszed to transfer certain
immoveable property, and
4. Such person must profess to transfer such property for

5. Consideration.
A transfer so made shall, at the option of the transferee in order to feed the estoppel,
(a) Operate on any interest which the transferor may acquire in such property
(b) At any time during which the contract of transfer subsists.
Nothing in the section shall impair
The right of transferees :
(i) in good faith
(ii) for consideration

(iii) without notice of the existence of the option.
Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not
be heard to allege the contrary as against a person who acts on that representation. It is immaterial
whether the transferor acts bona fide or fraudulently in making the representation. It is only material to
find out whether in fact the transferee has been misled. 8 The doctrine of feeding he grant by estoppel
Page 3 of 45
S. 43. (A)
which is in essence a principle of equity stands statutorily recognised in India by

Section 43 of the T.P. Act .9 Where the plaintiff appellant failed to prove that the
vendor executing sale deed had any share in the property, no right would stand transferred in favour of
the plaintiff even by the aid of Section 43. 10 The principle of feeding the grant by estoppel will not
impair the rights of transferee in good faith for consideration. In such a case
Section 43 of the Transfer of Property Act comes into play.11
Where a person transfers property representing that he has a present interest therein, whereas he has,
in fact, only a spes successionis , the transferee is entitled to the benefit of Section 43, if he has taken
the transfer on the faith of that representation and for consideration. 12
The doctrine of feeding the estoppel envisages that where a grantor has purported to grant an interest
in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent
acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel.
13 The principle is based on an equitable doctrine that a person who promised to perform more than he
can perform must make good his contract when he acquires the power of performance. 14 The
difference between the ambit of Sections 41 and 43 of the Act is apparent. Whereas Section 41
provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor
was not authorized therefore, subject to the condition that the transferee should take reasonable care
to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit
thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor
has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the
transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for
value without notice is in effect. 15
Prior to 1929 Amendment, the relevant words of Section 43 were "where a person erroneously
represents", and now, as amended by Act 20 of 1929, they are "where a person fraudulently or
erroneously represents", and that emphasizes that for the purpose of the section it matters not whether
the transferor acted fraudulently or innocently in making the representation, and that what is material is
that he did make a representation and the transferee has acted on it. 16
For the application of Section 43, the two essentials to be satisfied in the case are :—
Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee
that he is authorized to transfer certain immovable property and in the purported exercise of authority,
professed to transfer such property for consideration. Subsequently, when it is discovered that the
transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled
to get the restitution of interest in property got by the transferor, provided the transferor acquires such
interest in the property during which contract of transfer must subsist. 17 Where the conditions of
Section 43 of the T.P. Act are not fulfilled, the protection of
Section 43 of the T.P. Act would not be available.18
Section 43, T.P. Act presupposes —
(i) a fraudulent or erroneous representation regarding the authority of the transferor to transfer the property,
(ii) the property is transferred for consideration,
(iii) subsequently, the transferor has acquired interest in the transferred property and,
(iv) the contract of transfer is subsisting. 19
Page 4 of 45
S. 43. (A)
Under
Section 43, T.P. Act , the transfer of the subsequently acquired property takes place automatically as in
the English law, but it takes place not at the moment when the interest is acquired but at the moment the transferee
exercises the option that the interest shall stand transferred to him. This is the first matter in respect of which the
Indian law differs from the English law and the second matter in respect of which it differs is that it does not apply
the doctrine of feeding the estoppel so as to impair the rights of subsequent transferee in good faith for
consideration without notice of the existence of the option in the prior transferee. Both these deviations in the Indian
law have no bearing upon the question whether the state of knowledge of the first transferee is material.20 It is true
that Section 43 makes a reference to the fraudulent or erroneous representation by the transferor to the effect that
he is authorized to transfer the interest, which he professes to transfer. But this is not a deviation from the English
law because under that law also such a representation is implied in the doctrine of estoppel by deed upon which the
doctrine of feeding the estoppel is based. 21 The same is the position under the doctrine of equity that equity treats
that, as done personal obligation, which compels the transferor to perform his contract when he is able to do so on
the acquisition of the subsequent interest. 22
The provisions of
Section 43 of the T.P. Act make it clear that when a person with imperfect title transfers the property for
consideration and subsequently the transferor’s title becomes perfect in law, the transferee is entitled to enforce the
terms of the contract by equitable doctrine of feeding the grant by estoppel.23
S. 43 does not apply where the transfer is fraudulent and without consideration, 24 and the transferee is party to the
fraud. In the present case, the son executed sale-deeds during the lifetime of his father, showing his father had
expired. The purchaser was a party to the fraud perpetrated by the son as he was at all material times aware that in
the year 1982, the original tenure holder was alive and not dead. Held, the provisions of Section 43 were not
attracted in the case. 25
Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee
has been misled. The transferee must know or put on notice that the transferor does not possess the title which he
represents that he has. 26
A representation may be erroneous, may not be fraudulent for the purpose of Section 43, it is not strong material for
consideration. 27
This section is applicable to a case where a person transfers property to which he has a present and transferable
interest therein and acting on such representation, the transferee takes a transfer for consideration and if the
transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not been
cancelled and is subsisting. 28 A person transferring land cannot subsequently plead title to the land where he has
induced another person to purchase the same and pay for it. 29 Where a son in possession of his father’s shop
mortgages the shop, representing himself as the owner of a share in the shop, but subsequently on his father’s
death he inherits that share, Section 43 is attracted. 30 The rule of "interest" feeding the estoppel would not be
available to the vendees where a female widow did not get absolute estate under
Section 14 of the Hindu Succession Act, 1956 , in property of which she was not in possession when the
Act came into force.31
When the other ingredients prescribed are found to exist, upon the acquisition by the transferor of any interest in the
property professed to be transferred, there springs into existence an option for the transferee to have the transfer
operate on such newly acquired interest. That option accrues to him, by the terms of the Section proprio vigore and
Page 5 of 45
S. 43. (A)
not by anything that he has to do. Being an option if is open to him not to claim the benefit. 32
Section 43 applies whenever a person transfer a property to which he has no title on a representation that he has a
present and transferable interest therein and acting on that representation the transferee takes a transfer for
consideration. It pre supposes that the contract must be valid one and enforceable by law. 33 Where a Sirdar
entered into an agreement of sale, undertook to acquire bhumidari rights and also permission of the consolidation
authority before execution of sale deed and having failed to execute the sale deed, the plaintiff purchaser filed suit
for specific performance of contract, it was held that the contract was enforceable at law and the plaintiff purchaser
was entitled to a decree for specific performance of contract. 34
Where a transfer was made by the daughters separately to different persons and other daughters never challenged
the transfer, even the reversioners did not challenge those alienation during the life time of their mothers and they
filed suit challenging the alienations long after the death of last limited owner, it was held that even if the partition
between the daughters had no effect on the reversion it could safely be presumed that the transfer made by one of
the daughters of the property exclusively in her possession had the consent of the other. The last limited owner
after the death of her two sisters had entered into an exclusive possession of the entire estate left by the widow.
Therefore, the transferees would be entitled to the protection of
Section 43 of the T.P. Act , which substantially amounted to satisfying the equitable principle of feeding
the grant by estoppel.35 Where the donor had not acquired title on the date of the gift-deed but subsequently by
Court’s decree, he acquired a complete and valid title, though Section 43 in terms did not apply, but its principle
was applied. 36 Under
Section 43 of the T.P. Act , where a person fraudulently or erroneously represents that he is authorized
to transfer certain immoveable property and proposes to transfer such property for consideration, such transfer shall
at the option of the transferee, operate on any interest, which the transferor may acquire in such property at any
time during which the contract of transfer subsists.37 Where a mother acting as de facto guardian of his minor son
transfers her share and the share of her minor son, on the death of the minor son she inherits the share of the son,
the transferee gets good title to the interest inherited by the mother from her deceased minor son. 38 Where the
husband had granted property to his wife in lieu of her maintenance, the husband sold the property, the wife
instituted suit challenging the alienation made by the husband, on the death of the wife, her husband being legal
heir, would become the owner of the property, Section 43 being attracted in the case. 39
The provisions of Section 43 would be attracted whereunder a person who has no title whatsoever to a property
grants it by a conveyance which in form carries legal estate and he subsequently acquires an interest, sufficient to
grant the interest instantly passes. Where suit land was settled with the ex-proprietor on 12th December 1954 under
Section 54(1) of Madhya Pradesh Abolition of Proprietary Right (Estates, Mahals, Alienated Lands) Act 1950, the
sale effected much earlier in the year 1952 in favour of the plaintiff by ex-proprietor of the same land was held valid
in view of the provisions of
Estoppel is but a rule of evidence and except in cases like those under Section 43 of the Transfer of Proper Act,
when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the
representation is made. 41
Where a Mohammedan widow had only a part share in the property, but transferred the whole property, later she
inherited the share of her daughter, on the principle of Section 43 the transferee was entitled to claim the share of
the vendor’s daughter. 42
When the evidence does not establish that vendor had made a fraudulent representation or had made an
Page 6 of 45
S. 43. (A)
erroneous representation, he cannot be estopped from disowning the obligation indicated by the agreement in
dispute in view of provisions of Section 43 of the Act. The restriction imposed by provisions of
Section 43 of the T.P. Act is pivotally dependent on these two important ingredients of Section 43. If they
are lacking, there would be no fetters of estoppel against such vendors if the litigant attempts to take the shelter of
the provisions of
The intention behind enacting

Section 43 of the T.P. Act is to restore the interest acquired by the intended vendor and intended
vendee on account of the happening of some events which would clothe the vendor with title of the property which
he wanted to sell to intended vendee by virtue of the agreement in question. It was for the purposes of rectifying the
error which might have taken place on account of the erroneous misrepresentation. The intention behind enacting
that provision was to make good the loss caused to such intending vendee on account of the fraudulent vendor in a
case in which on his such fraudulent representation the said intending vendee had acted and had parted with
consideration in good faith. The law wanted to protect the interest of such deceived vendee and, therefore, such
deceitful vendee was estopped from resiling from the obligatiion created by such agreement which has come in
dispute. Therefore, for applicability of Section 43 in relation to those two ingredients, the vendee must have also
acted in good faith and must have parted with consideration in good faith relying upon the said misrepresentation
made by such deceitful vendor. In the absence of the important ingredients of Section 43, such vendor could not be
estopped from refusing performance of the said contract.44
Section 43 of the Transfer of Property Act applies whenever a person transfers property to which he has
no title on a representation that he has at present a transferable interest therein and acting on that representation
the transferee takes a transfer for consideration, if thereafter the transferor acquires the property, the transferee
becomes entitled to it, if the transfer has not in the meantime been thrown up or cancelled and is subsisting.46 The
Supreme Court in Jumma Masjid Mercara v. Kodimaniandra Deviah , 47 commented upon the scope of Section 43
and observed as under :—
" Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege
the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or
fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For
the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the
representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the
transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said
to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section
6 (1)."
Where a mother transferred her share and the share of minor son, on attaining majority the son challenged transfer
of his share by mother and obtained decree, but before the son could take possession of his share, the son died, on
the death of the son the mother inherited the share of son, the transferee can claim ownership in respect of the
share of the mother only and not of the son. 48
Page 7 of 45
S. 43. (A)
Where a transferor has limited interest in the property and acquires full and better title subsequently it would enure
for the benefit of the transferee. 49 To bring the subsequent interest within the scope of the original transfer, the
consent of concurrence of the quondam transferor is not required under
Section 43,Transfer of Property Act . It is enough if the transferee exercises his option to take the
subsequent interest under the earlier transfer in his favour. No further conveyance is contemplated by the section.50
Where at the time of assignment the assignee has no real title, but acquires interest later on, Section 43 would
apply. 51 The benefit of Section 43 is available even when the transferor on account of same statutory bar was
incompetent to transfer the property. 52
"Property" in Section 43 does not mean physical object, but connotes interest in property. 53 Under Section 43, the
transferee is entitled to believe the representation made by the transferor to him and to act on it. 54
Section 43 envisages a rule of estoppel different from the one unde r 115,
Indian Evidence Act, 1872 , which effects legal relations.55
Section 43 applies to the case of a transfer by an unauthorized person who subsequently acquires interest in the
property transferred, has no application to the case of a charge for the earnest money paid on immovable property
in which transferor has no title as charge is not a case of transfer of interest in immovable property. 56
When a coparcener sold a specific portion of land erroneously representing that a partition had already taken place
and the property sold was allotted to him as separate and the transferees raised construction over the building, the
karta of family was entitled to a decree of joint possession over the land. The principle of feeding the grant by
estoppel applied. 57
Agreement for sale. —The benefit available under

Section 43 of the T.P. Act would be available in the case of contract of sale also.58 Where the vendor
represented that she was the full of the owner of the property, the vendee acted on the said representation and paid
the entire sale consideration, the vendor subsequently acquired title, Section 43 was held fully applicable in the
case, the vendor could not resile from the transaction. 59
Persons claiming under the person estopped. —The section extends to persons claiming under the
transferor, for such a person can never be in a better position than he from whom he takes it. 60
Who can set up transferor’s fraud. —Not only the transferee but a party claiming through the
transferor can contend that the transaction was fraudulent and made with a view to elude a statute. 61
Consideration. —This is an essential ingredient for the application of the principle enunciated in the
section. The section cannot apply if the deed was without consideration. 62 Hence gifts are excluded. 63
Page 8 of 45
S. 43. (A)
Where the earlier transfer was not for consideration but a gratuitous settlement, held Section 43 did not apply. 64
Hindu Law. —The principle of English Law which allows a subsequently acquired interest to feed the
estoppel has been held by the Privy Council to apply to Hindu conveyances 65 though there is a contrary dictum of
the same tribunal. 66 A transferee from a sale coparcener in a joint family consisting of himself and widow having an
interest in the joint family properties under the Hindu Women’s Relief to Property Act can take the aid of
Section 43 of the T.P. Act in respect of the widow’s interest after her death provided he proves that the
transferor coparcener erroneously represented that he was authorized to transfer the widow’s interest.67
Personal character of estoppel. —The Common Law doctrine of estoppel is of a very personal nature
and only exists between the parties to the transaction. It is part of the law of evidence and is not the same as the
equitable doctrine. You cannot found an action on it as you can in equity. 68
Estoppel whether implied. —Estoppels are odious and not to be construed or raised by implication. 69
Duration of estoppel. —Between mortgagor and mortgagee the reconveyance determines it. 70
Between lessor and lessee it exists during the endurance of the lease. 71
Property. —The expression ‘property’ in Section 43 does not mean, or at least does not necessarily
mean, the physical object which is in popular language regarded as property but connotes interest in property.
Section 43 applies only when the transferor had no interest in the property at all and not when he had an interest
but it was not transferable. 72
Moveable property. —The principle of equity enunciated in this section is applicable to moveables. 73
Estoppel in
Section 43 of the Transfer of Property Act, 1882 and
Section 115 of the Indian Evidence Act, 1872 .—There is a distinction between the rule of estoppel
contained in
Section 43 of the Transfer of Property Act and the one contained in
Section 115 of the Indian Evidence Act . In the former, estoppel which exists by reason of the
representation has the effect of transferring the property to the purchaser the moment the transferor obtains the
same during the subsistence of the contract. In the latter case there is no question of any transfer of property or of
feeding the original grant.74 The doctrine of estoppel in pais is embodied in
Section 115, Evidence Act , whereas the doctrine of estoppel by deed coupled with the doctrine of
feeding the estoppel where the deed is a transfer for consideration is embodied in
Section 43, T.P. Act with slight modification.75
When the earlier transaction was gratuitous,

Section 43 T.P. Act would apply and operate as estoppel.76
Page 9 of 45
S. 43. (A)
Interest feeding the estoppel. —Founded on representation, the doctrine enunciated in the section
rests on two cardinal principles. First, there must be an estoppel growing out of representation made by a person
who has not in the property the interest which he professes to transfer and, secondly, the subsequent acquisition by
him of that interest to feed the estoppel created by the representation. If there be no estoppel, there can be no
feeding. Hence there must be a precise, clear and unambiguous statement to create the estoppel and also there
must be that subsequently acquired interest which is capable of being engrafted on that representation, otherwise
the estoppel must remain unfed. This doctrine seems to have originally risen in the case of lessor and lessee and
subsequently extended to various transfers of property. This doctrine is criticized by Sir George Jessel as no longer
necessary in law, no longer useful and in his opinion not be carried further than a Judge is obliged to carry it, being
a doctrine by which falsehood is made to have the effect of truth. He further expressed that it could have no
operation except in the case of third parties who were innocent of fraud and had become owners for value, there
being no reason for preferring one purchaser for value to another; but that as against the man himself or persons
claiming without value the purchaser or the mortgagee could recover without any recourse to estoppel at all. 77
It is not every representation that will do for an estoppel and it is not every statement that will do. There is no
authority for the proposition that an estoppel can be created by covenant. The covenant is an agreement that if the
covenantor has not the power to convey, he will be liable in damages. It is not a mere assertion that he has the
legal estate but an agreement really that if he has it not, he will pay for it. Even in the case of a recital there is a
modern decision to show that it must be a strict recital that the man has a legal estate; nothing less will do. 78
Similarly, where a recital was to the effect that a vendor was seised "or otherwise well and sufficiently entitled to the
property in question free from encumbrances" it was held that the recital which was an ordinary one and which in
substance amounted to a statement that a vendor had an estate either at law or at equity and the fact that it stated,
the estate whatever it was, was free from encumbrances, created no estoppel for the purpose of making the legal
estate pass. 79 A distinction has, however, been made between general and particular recitals. The former does not
operate as an estoppel though recital of a particular fact does. 80
Again, the doctrine will not apply if there be an estoppel without a subsequently acquired interest to feed it. 81 An
apparent defect in title is no bar to the feeding provided the other party has believed in the truth of the
representation and acted upon it. 82 Nor where a deed is void or voidable. Hence, where a person of age makes a
lease and has nothing in the premises but they after descend to him, the lease shall inure by way of estoppel; but it
is otherwise in the case of an infant, whose deed is never good and can therefore raise no estoppel. 83 So also if a
contract purports to transfer property which the law makes inalienable, that contract cannot be given effect to with
reference to another property which the transferor may subsequently acquire. 84
Where the vendor was husband of the opposite party and he acquired half share in the transferred property on the
death of his wife, the principle feeding the grant by estoppel applies, and the transferee would be entitled to half
share in the property and the sale deed to the extent of the half share would be binding on the transferor. 85 Where
the power of attorney holder son of the vendor challenging the sale deed succeeded to the property on the death of
the vendor, the sale deed would be binding on him in view of the provisions of
Where a person has received advantage under a void contract he is bound to make restitution. 87 The provisions of
the section are not applicable in case of transactions which are void or defeat the provisions of the law, 88 or where
the alienation on grounds of public policy is forbidden by law. 89 A transfer which is forbidden by law cannot be
upheld under the guise of the provisions of Section 43. This view of law was pointed out at some length by their
Lordships of the Judicial Committee in the case of Ananda Mohan Roy v. Gour Mohan . 90 Again, the doctrine does
not apply where an after-acquired title is taken by the grantor under a conveyance made to him as a conduit and for
the purpose of vesting the title in a third person. 91 This principle of law, which is sometimes referred to as feeding
the grant by estoppel, is well established in this country. If a man who has no title whatever to property, grants it by
a conveyance, which in form would carry the legal estate, and he subsequently acquires an interest sufficient to
satisfy the grant, the estate instantly passes. In such a case there is nothing on which the second grant could
Page 10 of 45
S. 43. (A)
operate in prejudice to the first. 92
By the English Law of estoppel, where a grantor has purported to grant an interest in land which he did not at that
time possess, but subsequently acquires, the benefit of his subsequent acquisition goes automatically to the earlier
grantee, or, as it is usually expressed, "feeds the estoppel." By this doctrine the estoppel is derived from the recitals
of title contained in the conveyance, and it is these recitals and these only which the grantor has to make good, so
that if he subsequently acquires the ownership of the property by some other title, the subsequently acquired
interest does not feed the estoppel so as to make the original conveyance effective as against a third party. 93 It is
material that there must be positive proof of both the grantor’s assertion of his interest in land, which he had not at
that time possessed, as also that he has subsequently acquired that interest, otherwise there could be no feeding. If
there be no such assertion there would be no estoppel to be fed. A by deed purported to grant a freehold estate to
B, by way of mortgage, and the deed contained no recitals but there were the usual mortgagor’s covenants for title
including a covenant that the mortgagor "had power to grant the premises in manner aforesaid." The mortgage was
accepted by B on the faith of certain forged title-deeds produced and handed to him by A . At the date of the
mortgage A had no legal estate nor any interest whatever in the property. Subsequently, however, A acquired by
purchase the legal estate and mortgaged it to C . Held that inasmuch as the mortgage to B contained no precise
averment that A was seised of the legal estate, no estoppel had been created in favour of B as against C . 94 In
English Law two principles are applied, namely, the Common Law principle of feeding the estoppel based on Doe v.
Oliver , 95 and the analogous equitable principle, the first mentioned principle being known as estoppel by deed. By
the latter principle effect is given to the original contract. The Common Law principle depends solely upon as
estoppel by recitals in the first deed and operates only when the recital contains a precise statement of the vendor’s
title. 96
The equitable principle applies only when the first deed amounts to an unambiguous agreement to convey the
precise estate which afterwards accrues to the grantor, 97 the cardinal distinction between the two being, that one is
based on recitals, the other on the words of the grant. The subject is somewhat complicated owing to the intricate
distinctions which exist in English Law and the divergence of views expressed by Common Law Judges. Stripped of
technicalities, the English Common Law is found in Section 43 while the equitable principle in Section 18 (a)of the
Specific Relief Act , 1877. The main difference between the two sections is that under Section 43, at the
option of the transferee the benefit of the subsequent acquisition goes automatically to the earlier grantee, while
under Section 18 (a) it is left to the purchaser or the lessee, as the case may be, to compel the vendor or lessor to
convey the subsequently acquired interest. Again, under Section 43 two requisites are necessary before the
estoppel can be fed. The feeding is dependent upon the option of the transferee and the subsistence of the contract
of transfer while no such requisites are necessary under Section 18 (a).98
This is not a case where the vendor had only right of spes successions and after execution of agreement of sale, he
subsequently acquired full interest in the property to be held bound by
No estoppel, no feeding. —This is illustrated by the rule of Hindu Law, where under the Mitakshara a
father or manager of a joint Hindu family has no power to alienate except in order to discharge an antecedent debt
binding on the estate or on the ground of legal necessity. Even such an alienation is not binding on the share of the
alienor 2 unless such share has been acquired by him on partition. 3
Estoppel unfed. —There must be a subsequently acquired interest by the transferor to feed the
estoppel created by the section, for the transfer which comes into existence under the section operates at the
option of the transferee on any interest which the transferor may acquire in such property and that acquisition of
interest must be during the time the contract of transfer subsists, that is to say, unless there is subsequently
acquired interest there is nothing to feed the estoppel with. Where a Mahomedan husband mortgaged his wife’s
property under a power-of-attorney disputed by her, on her death the share acquired by him by inheritance was
Page 11 of 45
S. 43. (A)
held to be within the mortgaged security. 4 A payment by a mortgagor to a prior encumbrancer would extinguish
that mortgage and the rights of subsequent encumbrancers would be determined as if such prior mortgage never
existed. 5 And where a Hindu wife executed a mortgage of the property of her husband who was presumed to have
been dead at the date of the suit brought by the mortgagee, the mortgage was considered to be operative on that
date. 6 The subsequently acquired interest feeds the estoppel even where the defect in title is apparent, provided
the other party has believed in the truth of the representation and acted on it. 7
Nothing to feed the estoppel. —The rule enunciated in the section does not apply if a transferor, who
has transferred the property without a title, has not recovered the property, for till then, it cannot be said that any
circumstances came into existence which would enable the transferee to claim option under the section. 8
"Fraudulently or erroneously represents". —When the evidence does not establish that vendor had
made a fraudulent representation or had made a erroneous representation, he cannot be estopped from disowning
the obligation indicated by the agreement in dispute in view of provisions of Section 43 of the Act. The restriction
imposed by provisions of
Section 43 of the T.P. Act is pivotally dependent on these two important ingredients of Section 43. If they
are lacking, there would be no fetters of estoppel against such vendors if the litigant attempts to take the shelter of
the provisions of
Section 43 of the T.P. Act .9 The representation to operate as an estoppel must be fraudulent or
erroneous. It must have been made by the transferor and believed in and acted upon by the transferee.
Section 43 itself makes a precondition that the transfer must have been made by fraud or misrepresentation. In this
case, when the defendant contracted the mortgage, he was the full owner of the property thereof. Therefore, the
question of applying the doctrine of estoppel by feeding the grant as provided under Section 43 also would not
apply. 10
Where it was stated in the agreement for sale that occupancy price had already been paid according to
Government Rules but it was paid subsequently, it was held that still the very representation in the agreement for
sale that the amount of occupancy price was paid as per the Government Rules would attract
Section 43 of the T.P. Act , and such representation would be a fraudulent representation within the
meaning of
Under the section the representaion to operate as an estoppel must be fraudulent or erroneous. What the law
mainly regards is the position of the person who was induced to act and the principle on which the law and the
statute rest is, that it would be most inequitable and unjust to him that if another by a representation made or by
conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person
who made the representation should be allowed to deny or repudiate the effect of his former statement to the loss
and injury of the person who acted on it. There is no ground for the suggestion, that the person making the
representation which induces another to act must be influenced by a fraudulent intention, to be found in the earlier
cases of Pickard v. Sears , 12 Freeman v. Cooke , 13 Cornish v. Abington , 14 and Carr v.
London and North Western Railway Co. 15
A fraudulent intention is by no means necessary to create an estoppel. The determining element is not the motive
with which the representation has been made nor the state of knowledge of the party making it, but the effect of the
representation as having caused another to act on the faith of it. The section does not apply where the statement
relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be
no estoppel where the truth of the matter is known to both parties. Knowledge of both parties of the truth, negatives
Page 12 of 45
S. 43. (A)
the estoppel. 16 Where the case is not of fraudulent or erroneous representation, Section 43 does not apply. 17
Section 43 would apply even if the transferor is not aware of the erroneous nature of the representation made by
him. 18
In the absence of plea in pleadings and evidence adduced, the plea of Section 43 cannot be decided in appeal. 19
Where it was not the case of the defendant appellant that there was any fraudulent or erroneous representation by
the plaintiff about his being owner of the entire land, the plaint allegations, the evidence and the sale deed clearly
stated that the plaintiff had 8 anna share and he had sold 8 anna share, the plaintiff no where stated that he was
the full owner of the entire land and it was not the defendant’s case that on such representation he entered into
transaction of purchase, Section 43 and the protection granted to the purchaser was not available to the defendant
appellant. 20
It is settled law that the language of the section clearly implies that the transferee is ignorant of the facts and
accepts and acts upon the fraudulent or erroneous representation and the false profession; and no transferee, who
has not been so led thereby, can claim relief under the section. This is in accordance with the law of estoppel. 21
The mode of its application is by preventing the transferor from proving the fact that he acquired the property
subsequent to the transaction. The rule of estoppel gives a fictitious date to the acquisition of title placing it anterior
to the transfer. To obtain the benefit of the section it must be shown that there is an erroneous or fraudulent
representation. Whether there was such a representation or not is a question of fact and inference of fact which
must be accepted in second appeal. J and B purported to mortgage a tank to one K who brought a suit on the
mortgage and purchased the property in execution of their decree and thereafter the plaintiff purchased half the
tank from K . The tank originally belonged to S and a half share descended to A and the other half to J and B As
there was, however, no representation to the plaintiff by J and B the section did not apply. 22 Where an erroneous
representation was made by the mother who claimed to be the owner and professed to make the transfer when the
property belonged to her sons, Section 43 did not apply. 23 Where there is no representation, there is no estoppel.
24 In order to bring Section 43 into operation there must be representation by the transferor believed by the
transferee who, relying on the truth of that representation, changed his position to his detriment. 25
Erroneous representation contemplated by Section 43 must be with regard to the authority of the transferor to
transfer the property. 26 The representation may be in any form, may be by word of month, or by document, a node
or smile to a question. 27 Section 43 does not contemplate that the erroneous representation must have misled the
transferee, the conduct of transferor alone is relevant. 28
Section 43 does not require that after the transferor has acquired his title in the property, the transferee must at
once give notice to him that he proposes to hold him bound by the agreement and that in the exercise of the option
the subsequent transferee must have notice of before he can be bound. 29
The representation contemplated under Section 43 may be express or implied. It will be implied when the law
makes it an implied term of transfer. 30
A Mahomedan husband under a power-of-attorney in his favour from his wife executed a mortgage of her property.
The power was disputed but before the question was decided finally, the wife died and the husband became her
heir to the extent of onefourth, against which it was held, the mortgagee was competent to proceed. 31
Page 13 of 45
S. 43. (A)
A member of an undivided Hindu family, consisting of himself, his adopted son and his uncle, sold, without family
necessity, certain land belonging to the family, to the plaintiff, who sued for declaration of title and possession of the
land. During the pendency of the suit the undivided uncle died, having made a gift of his property to his daughter-in-
law. The gift was held to be invalid and the plaintiff was declared entitled to a moiety of the land sold to him. 32
Where two of three co-owners leased the property to the exclusion of the third, who died pending the lease, leaving
a will whereby he left onehalf of his one-third share to each of the remaining co-owners, the section was applied
and the lessee’s imperfect title was completed by the subsequent acquisition. 33 A mortgage under Mitakshara law
of joint family property is void unless it be to pay an antecedent debt or for legal necessity. But where the
mortgagor’s interest has been separated by partition, it may become available as security for the debt. 34 A sale by
the father of joint family property purporting to act for himself and his two minor sons and alleging that it was self-
acquired property, having been found not binding on the minor sons, it was held that the alienee was entitled to the
possession of one-half and not onethird. 35 K , a Hindu, had separated from his brother D He sold to S
the equity of redemption of certain property which was vested in his brother D under a deed of release and
assignment executed by the brothers on partition. D had disappeared and was not heard of and K represented by a
recital to that effect that he was exclusively entitled to the right of redemption. On the date of sale D was not known
to be dead and it was proved that he died subsequent to the sale by K and it was held that S was entitled to the
benefit of Section 43. 36
The defendant/appellant on 22.7.1952 had executed the sale deed after depositing ten times of the annual land
revenue for getting Bhumidhari rights a day earlier to the date of execution and after execution of the sale deed he
withdrew that amount, later on 21.4.1975 he again deposited twenty times of the rent for getting Bhumidhari rights
and he became Bhumidhar. The defendant/appellant cannot take advantage of his act by withdrawing the amount
of ten times rent deposited for getting Bhumidhari rights. He has professed to be Bhumidhar on 22.7.1952 and
subsequently in the year 1975 he had acquired Bhumidhari rights and the sale deed remained intact during this
entire period. According to defendant-appellant it was fraudulent transfer but no action had been taken by getting it
cancelled by competent Court. Defendant/Appellant being transferor, who has made erroneous representation,
cannot seek assistance from the Court on the ground of his own fraud by making erroneous representation in the
sale deed. Held, the plaintiff’s respondents were entitled to the protection of
Where a coparcener has no right to transfer any share in joint family property on the date of sale but subsequently
in partition he becomes owner of that share, Section 43 applies. 38
Some of the defendants and the predecessor in title of the defendants entered into an agreement for sale of the
property, represented that they are authorized to transfer the property they being the owner of the property.
Subsequently some of the defendants applied for the settlement of the same land under Orissa Estates Abolition
Act, 1951, and the government settled the land in their favour. It was held that Section 43 would not apply in the
case as the land was settled on these defendants in their own right and not as heirs of the of the persons who are
bound by the contract. So far as other defendants were concerned, who were the original vendors and who whom
were the settlees under the provisions of Orissa Land Reforms Act, 1960, Section 43 was applicable. 39
In the instant case, the defendants believed that the allotment order issued by the then City Improvement Trust
Board (Now Bangalore Development Authority) in favour of the first defendant in respect of the said site itself was
the title deed conferring upon the defendants ownership thereto, and the plaintiff, after showing the same to her
brother, also believed the said allotment order as the title deed conferring absolute ownership in favour of the first
defendant, and as such he was entitled to sell it to the plaintiff. Both the parties to the agreement of sale proceeded
with the said belief that by virtue of the said allotment order the first defendant could successfully convey in favour
of the plaintiff title to the said property and therefore, she could purchase the same. Held, the first defendant did not
make any false representation to the plaintiff that he was the absolute owner of the said property having full powers
to dispose of the same, which in fact, he did not have. As such, Sec tion 43 was not applicable in the case. 40
Page 14 of 45
S. 43. (A)
The true rule may accordingly be taken that if a transferor without title has once become entitled to a valid estate in
the land the transferee’s equity would attach upon it in the hands of all persons claiming under the transferor
otherwise than for a legal interest for value without notice. 41
Both parties aware of the absence of title of the transferor. —

Section 43 of the T.P. Act is founded on the rule of estoppel and therefore in order to attract the principle
of that section it is necessary to show that there has been an erroneous or fraudulent representation. If both parties
are aware of the absence of title of the transferor, that will not be a case where there is an erroneous or fraudulent
representation. In such a case the rule of estoppel embodied in Section 43 does not apply.42 Where both the
parties to the transfer knowing the truefacts collude and enter to the transaction, Section 43 does not apply. 43
Where the transferee knows as a fact that the transferor does not possess the title which he represents he has,
then he cannot be said to have acted on it when taking a transfer, and in such situation Section 43 would have no
application. 44
Where the transferee knew that the transferor did not posees title, Section 43 is not attracted in the case. 45
In the instant case, the plaintiff was very much aware of the absence of title in the vendor, vis--vis the land. Once
the vendee has chosen to transact with the vendor, knowing fully well that the latter did not hold title to the land, he
cannot seek enforcement of an agreement. The subsequent acquisition of title by the vendor, therefore, would not
enure to the benefit of the plaintiff. 46
Where the plaintiff transferee knew fully well that one J and the defendant, her grandson, were the owners of the
land, the transferor had no title over the suit land. Held Section 43 was not attracted in the case, and the plaintiff
vendee was not entitled to the benefit of Sections 41 and 43. The consent letter executed by the defendant did not
convey title nor created any interest in the suit land to the plaintiff. 47
Where the vendor purchased property with full knowledge of rights of their vendors, evidence was lacking to show
that there was any fraudulent or erroneous representation and acting on such representation, the vendee
purchased the property, it was held that the doctrine of feeding the estoppel envisaged by Section 43 was not
attracted. 48 Mere knowledge of defect in the title of transferor would not be a ground to affect the applicability of
Section 43. 49
For application of the principle of feeding the grant by estoppel, it must be shown that transferee was misled by
erroneous or fraudulent representation made by the transferor. This equitable principle is not attracted where the
transferee, knowing fully well that transferor had no title or saleable interest in property, still took risk and bought
property. 50
Section 43 protects a purchaser for value without notice. A transferee is entitled to the benefit of Section 43, if he
believed in the representation made by the vendor and was not aware of the true interest of the vendor with
reference to the property. 51 Where the tranasferee was not aware that the property had already vested in the State
and the vendor had no interest left, on the other hand believed the vedor as the true owner of the property, had paid
Page 15 of 45
S. 43. (A)
good consideration and had obtained possession of the property also, the plaintiff vendeee was held protected the
provisions of Section 43. 52
Transfer of property of lunatic, transferee aware of lunacy, Section 43 not applicable. —For
applying the provision of Section 43, it is necessary that there must be a fraudulent or erroneous representation by
the transferor in relation to his title and the transferee must have acted on it, and subsequently a title is cleared by
such transferor in that case the transferor cannot be heard to allege anything contrary as against the person who
acts on that representation. 53
Where a property of the lunatic is transferred by his wife and the transferee knows the fact of lunacy, the sale is
void from its very inception and principle of feeding the grant by estoppel envisaged by
Section 43 of the T.P. Act does not apply.54
Personal equity. —Closely resembling the rule enacted in this section, though materially differing from
it, is the equity affecting the conscience of the transferor. The rule in the section is founded on estoppel arising out
of representation but there are cases, in which without representation the conscience of the party transferring the
property is charged, where owing to defective or imperfect title the contract remaind executory or cannot be carried
out to its full extent. The transferor is compelled, out of the subsequently acquired interest, to perfect his title and
thus to perform at a subsequent stage what he failed to perform at the time of the contract. This obligation does not
arise under this section but flows from the contractual relation between the parties and the case is thus governed by
Section 13 (a)of the
Specific Relief Act, 1963 .
That a title by estoppel rests upon representation made by the grantor and acted upon by the grantee is well
illustrated by the case of a mortgagee of Deshgal Vatan who knew that the property mortgaged to him was land
appertaining to an hereditary office and inalienable beyond the lifetime of the incumbent. Subsequent to the
mortgage, the estate of the mortgagor was enlarged so as to be alienable in the lifetime of the holder. After the
enlargement, the mortgagee claimed to hold the property as if it were an estate similar to that of any owner of
private property. It was held that the mortgagee could not allege that he had any title by estoppel, under which any
enlarged estate coming to the mortgagor subsequent to the mortgage, would inure to his benefit. 55 The above
distinction is illustrated by the following case : The defendant having entered into a contract with the plaintiff to
purchase his estate, declined to complete the purchase on the ground of fraudulent misrepresentation of title on the
part of the plaintiff. Far from the representation being fraudulent, the defendant himself pointed out, by his earliest
requisition, that the vendor should procure the concurrence of the heir-at-law, an objection which excluded
altogether the notion of fraudulent misrepresentation. The means of curing the defect in the title of the vendor was
pointed out by the purchaser himself. On the requisition not being complied with, the defendant affected to rescind
the contract with the plaintiff and bought up the interest of the heir-at-law. The right to rescission was denied by the
defendant who sued for specific performance which was decreed. It was there observed : "But the Court has even
gone so far as to hold that, the conscience of each of the contracting parties being bound by the contract, it will not
permit the person who has contracted to sell an estate to which he had no title, and to which, after the contract, by
dealing with the actual owner he obtained a good title, to evade his contract. The Court imposes on him the
obligation to fulfil the contract, which, at the time he entered into it, he had not the power to fulfil, but which, by his
own subsequent acts, he acquires the means of performing. The Court considers that the vendor, having obtained
the means of completing the contract, and of conveying to the purchaser what he had contracted to sell, is bound in
conscience to fulfil the obligation which he has incurred". 56
The distinction between

Section 13 of the Specific Relief Act, 1963 and the present section is illustrated by the case where a
mother who contracted to sell an immoveable
Page 16 of 45
S. 43. (A)
property without any legal necessity, nor in her personal capacity and not on the representation that the property
was her own, but as mother and next friend of her minor son. Both the parties contracted upon the footing that the
purchaser would not get a valid title without the sanction of the District Judge. The minor died before the sanction
could be obtained, leaving the mother as heir. Holding that the agreement could not be specifically enforced against
the mother, it was observed that
Section 13 of the Specific Relief Act, 1963 had no application for the mother never contracted to sell any
property as if it were her own; she only constracted to sell as guardian of her minor son. No doubt, if she had
contracted to sell the property as her own, it not then being hers by inheritance,
Section 13 of the Specific Relief Act, 1963 would have assisted the plaintiff; nor could
Section 43 of the Transfer of Property Act apply, for there was no erroneous representation made by the
mother, the true state of affairs having been disclosed to the intending purchaser.57 On the 24th September 1920,
S mortgaged a house to Z & Co. by deposit of title-deeds. Z & Co. similarly mortgaged it to a bank. It was
subsequently found that S ’s title was defective, he having an undivided three-fourth share, the remaining one-
fourth having become vested in one J When S found that his title was defective he obtained a first charge on the
remaining one-fourth by decree which was deposited with Z & Co . Z & Co. by virtue of their mortgage from S were
entitled to the whole interest and the defect in title was made up by S obtaining a decree and charge as to one-
fourth. In this case there was no representation according to the facts of the case. The case was therefore not
governed by Section 43 but came within the doctrine of personal equity, compelling the transferor to perform what
he originally failed to do. 58
The plaintiff in a pre-emption suit, in order to procure funds for the prosecution of his suit, executed a mortgage
comprising certain property of which he was the owner and also the property the subject-matter of the suit for pre-
emption. The suit for pre-emption was successful. Held that the mortgage took effect as regards the property, the
subjectmatter of the pre-emption suit, from the time when the plaintiff mortgagor obtained possession by virtue of
his decree in the suit. 59 And where a Mahomedan executed a hibanama of property of which he had a two-third
share, the remaining one-third being owned by his sister, which was subsequently acquired by him, it was held that
the wife in whose favour the hibanama was executed acquired a title to the entire property. There the lower Courts
considered the case was within the rule laid down in Section 43. But when it was pointed out in second appeal that
there was no evidence of erroneous representation, the Court considered such a finding unnecessary and
supported the decree on the ground that the conveyance of a non-existent property though inoperative as a
conveyance, is operative as an executory agreement, which would attach to the property, the moment it was
acquired by the grantor and which in equity would transfer the beneficial interest to the vendee, without any new act
being done by the vendor to confirm the conveyance. 60 A Mahomedan wife executed, of her husband’s property, a
mortgage on 22nd September 1924. Her husband had disappeared some years prior to the mortgage and it was
presumed, under
Section 108 of the Indian Evidence Act , I of 1872, that he was dead on the 26th October 1926. Still the
mortgage was held to be operative.61 In this case there was no representation of any kind by the wife, nor is it
conceivable how the transaction was binding on the minor son of the deceased owner. Yet the rule in Section 43
was applied. Besides the two equities above discussed there is a third equity supported by a group of cases which
do not belong to either of the heads above mentioned. These are cases of mortgagors acquiring interests in the
mortgaged property subsequent to the mortgage and which are governed by
Section 70 of the Transfer of Property Act , whereby the accession to the mortgaged property
subsequent to the mortgage inures for the benefit of the mortgagee for the purpose of his security.A on behalf of
himself and his four brothers, acquired the shikmi interest in a chuck which at the time was subject to a mokarari
lease. A and two of his brothers mortgaged the chuck and subsequently A on behalf of himself and his four brothers
acquired the mokarari interest in the chuck . The purchase of mokarari was an accession to the mortgaged property
under
Section 70 of the Transfer of Property Act , and the purchaser of the chuck at the sale in execution of the
decree on the mortgage was entitled to three-fifths of the mokarari interest as well as to three-fifths of the shikmi
interest. 62
In the case of mortgagor and mortgagee three principles have to be borne in mind. One laid down by the present
section, the other by Section 70 of this Act which deals with accession to the mortgaged properties and the third
dealt with in Section 13 (a)of the
Page 17 of 45
S. 43. (A)
Specific Relief Act . Where a person fraudulently or erroneously represents that he is authorized to
transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall
operate on the subsequently acquired interest during the subsistence of the contract at the option of the transferee.
That is the first principle. A mortgage was executed by a Mahomedan husband of the wife’s property under a
power-of-attorney from her which she contended was not binding on her. During the pendency of the appeal, the
wife died and the husband became her heir of one-fourth. It was further found that he actually received the
mortgage-money for his own expenses. It was held that the mortgagee was entitled to proceed against the property
to the extent of the share of the wife inherited by the husband.63 Another principle is that every enlargement of the
mortgagor’s interest in the mortgaged premises prior to redemption usually inures for the benefit of the mortgagee.
64 And the same principle would apply where the mortgagor acquiring the mortgaged property attempts to use the
mortgage rights as a shield against subsequent mortgages executed by himself. The effect of payment or purchase
in such cases is to extinguish the mortgage and the rights of subsequent encumbrancers are determined as if such
prior mortgage never existed. 65
The third principle underlies Section 13 (a)of the

Specific Relief Act, 1963 , whereby a person, having only an imperfect or defective title contracts to sell
or let is required to make good the contract out of the subsequently acquired interest and thus to perfect his title.
The same principle would apply to mortgages. The Privy Council has held that the principles of English Law
applicable to mortgages in this connection may be applied to Indian mortgages.66 A mortage by a Ghatwal of
certain property which was subject to certain restrictions on his right of alienation at the time of execution, but which
were removed afterwards and before the institution of the suit, operated as a conveyance which attached to the
property, the moment the restrictions were removed and in equity transferred the beneficial interest to the
mortgagee without any act being done by the mortgagor to confirm the mortgage. 67 Section 13 (a)of the
Specific Relief Act, 1963 has to be read in connection with Section 19, according to which specific
performance of a contract may be enforced against (a) either party thereto, (b) any other person claiming under him
by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith
and without notice of the original contract. It has been held by the Privy Council that the section lays down a general
rule that the original contract may be specifically enforced against a subsequent transferee but allows an exception
to that general rule, not to the transferor, but to the transferee, and it is for the latter to establish the circumstances
which will allow him to retain the benefit of a transfer which prima facie he had no right to get. Hence an innocent
purchase must be not merely asserted but proved. 68
Transfers which defeat the legislature or are opposed to public policy. —The provisions of this
section have no application to transactions forbidden by law or are of such a nature that if permitted would defeat
the provisions of any law 69 or which the Court regards as opposed to public policy or as would defeat the plain
provisions of the Legislature. There is an essential difference between restrictions on transfers imposed by the
Legislature and those imposed by a grant or by a Court or decree. The general policy of law is to promote free
alienation but there are cases in which, for the protection of particular interests, it is expedient to fetter the privilege
of free alienation. In such cases the prohibition against transfer being founded upon consideration of public interest,
must be treated as absolute. 70
There can be no estoppel against statue and when the considerations of public interest are involved. Section 43
has no application where there is no transfer of the property. 71 Where a plot was auctioned by the Delhi
Development Authority, which was set aside by the High Court on the ground that the plot was situated in the green
plot, the mere acceptance of the bid and the bid amount did not amount to transfer of the property. Merely because
the disqualification/ disability was subsequently removed at the time of the filing of the writ petiton, was held no
ground to invoke the doctrine of feeding the grant by estoppel envisaged by Section 43. 72 A void transaction
cannot be verified. 73
Where the vendor purchased property with full knowledge of rights of their vendors, evidence was lacking to show
that there was any fraudulent or erroneous representation and acting on such representation, the vendee
purchased the property, it was held that the doctrine of feeding the estoppel envisaged by Section 43 was not
Page 18 of 45
S. 43. (A)
attracted. 74
An alienation prohibited and illegal at the date it was made, cannot be rendered valid by subsequent removal of the
prohibition. No equities arise out of a transaction which is prohibited on grounds of public policy. The section cannot
be applied to make a transfer valid which on the date on which it was made was prohibited by statute. The
alienation of a service inam is void and though it is subsequently enfranchised, the alienee cannot invoke the aid of
Section 43 of the Transfer of Property Act .76 It has been observed that a contract which is void ab initio
77
cannot be validated by the provisions of this section. The transfers of expectancies are void in India as forbidden
by Section 6 (a) of the present Act and
Section 23 of the Indian Contract Act, 1872 . Therefore a contract by a Hindu to sell immoveable property
to which he is the then nearest reversionary heir expectant upon the death of a widow in possession and to transfer
it upon possession accruing to him, is void. To such class of cases as are opposed to statute law, the section is
inapplicable.78 But in the case of reversioners, a distinction is made between the transfer of a reversionary and a
transfer by the reversioner as if it were an absolute interest. Transfers of the former class would obviously fall within
the purview of Section 6 (a) and would be void ab initio , while those of the latter class would be regulated by
Section 43 of the Act. In the illustration to the section, A clearly has at the date of the transfer no more than a
reversionary right of succession in the property he professed to transfer, on the erroneous representation that he
was authorized to transfer it. Notwithstanding this initial difficulty in the title, when the succession opens and A
becomes the owner of the property, C , the transferee, obtains under the section an indefeasible right to it in
fulfilment of the original contract of transfer. Hence where a person purports to a transfer property in praesenti but in
which he has only a reversionary interest at the date of the transfer, the transaction is valid. Where a Mahomedan
borrowed on a property which belonged exclusively to his mother in which he had only a spes successionis , on the
false representation that the property belonged to him, it was held that on the death of the mother prior to the
institution of the suit, when the defendant succeeded to the property, the present section applied. 79 The same view
was taken by the Madras High Court where a Mahomedan who had only a spes successionis in his father’s
property mortgaged it upon an express declaration that he had a title in praesenti in it. During the progress of the
suit to enforce the mortgage, the mortgagor’s father died and he became the owner by succession. His defence
under Section 6 (a) failed and it was held that Section 43 applied. 80 In the under mentioned case, 81 the Supreme
Court held that Section 43 has application to all transfers. where a person transfers property representing that he
has a present interest therein, whereas he has in fact, only a spes successionis, the transferee is entitled to the
benefit of Section 43, if he has taken a transfer on the faith of that representation and for consideration.
A purchaser of property from the holder of a service inam who is prohibited by law from alienating the property
cannot claim a valid title thereto on the ground that the inam has since been enfranchised and a patta has been
issued to the alienor. The section can have no operation when the alienation is forbidden by law on grounds of
public policy. 82 A mortgage, executed by a mortgagor, who was at the time a person disqualified under Section 8 of
the Jhansi Encumbered Estates Act of 1882, is a contract for an unlawful consideration within
Section 23 of the Indian Contract Act, 1872 so that the present Section 43 could not be brought to aid
such a transaction.83 Possession obtained through a transaction which the law prohibits and declares to be void is
adverse. It is just such possession originating without colour of title which is contemplated by the law of limitation. 84
Invalid transfers. —Where transfer is invalid from its very inception e.g. transfer of trust properties by
trustees not having power of transfer, Section 43 cannot be invoked. 85 When the sale is void e.g. transfer of share
of a minor by a guardian without the permission of the Court required under Guardian and Ward Act. 86 Where the
lease land, which was Bhumidari with non-transferable rights, wass transferred, Section 43 would not apply. 87
Where the initial transfer itself between U and M was found invalid, held the benefit of application of
Page 19 of 45
S. 43. (A)
Section 43, T.P. Act to such a transaction on account of subsequent acquisition of title byU would not be
available. 88
Operation of the transfer. —In order that a subsequently acquired interest may attach itself to the
transfer made by the transferor under a fraudulent or erroneous representation, three requisites are necessary. It
can only be (1) at the option of the transferee, and (2) during the time the contract of transfer subsists, and (3) a
transferee in good faith for consideration without notice of the option not intervening. A contract can no longer be
deemed to subsist when a transferee has obtained a decree for specific performance or damages following on a
rescission of the contract. Even a mere rescission of the contract by the transferee would determine the contract.
The words of the section are wide enough to include the case of a contract merged in a decree. A Mahomedan
woman with her eldest son executed a mortgage of an estate in which her younger children were entitled to shares.
The mortgagee obtained a decree against the co-mortgagors and the suit was otherwise dismissed. Subsequently,
the shares of the comortgagors were increased by inheritance from one of the other defendants who died before
the decree was executed. In rendering the increasing shares of the mortgagors liable to be sold in execution of the
decree, it was said that the words of Section 43, "at any time during which the contract of transfer subsists" were
wide enough to cover the present case, for although the contract had merged in the decree, it must be held to
subsist till the mortgage was satisfied and the mere fact of the share in question having devolved on respondent
subsequent to the decree appeared to be no reason for holding Section 43 inapplicable. 89 And so where a portion
of the property comprised in a mortgage was acquired by the mortgagor subsequent to the mortgagee’s decree, the
latter was held entitled to execute the decree against the mortgagor’s interest acquired on partition. 90
Option of the transferee contract must be subsisting. —The subsequently acquired interest referred
to in the section does not automatically attach to the previous interest but the transferee can obtain it, if he chooses
to do so. It rests upon his option and it is for him to exercise that option. Such option, however, can only be
exercised during the time the contract of transfer subsists.
It is settled law that subsequent acquisition of title by the transferor does not automatically invest the transferee with
the title so acquired as in English law, and for such acquisition there must be an option by the transferee under the
law. 91 The section however does not lay down that exercise of such option can only be by a demand by the
transferee, and in fact the section mentions only about the option of the transferee and not exercise of option by
him. Any action by the transferee indicative of such option will be sufficient, when a transferor transfers any
immoveable property as his own, to operate on any interest in such property which he subsequently acquires. Such
option may be indicated by any overt action by the transferee and an institution of a suit for declaration of title in the
immoveable property may be one such overt act of option for the purposes of the section and no formal demand in
exercise of the option is necessary or contemplated under the section. 92 The exercise of option by the transferee
can be implied from the fact that the plaintiff has been exercising his right over the entire property and that he was
proceeding against not only the transferor but also against the so called subsequent transferees. 93
No particular form of option is prescribed by law. 94 Where there was no overt act by which the plaintiff transfree
indicated that he had an option by which he could show that the earlier transfer by the transferor would operate on
the interest which the transferor acquired, the benefit of Section 43 was not available. 95
The respondent mother had executed sale deed in favour of the appellant transferring lands on her behalf and on
behalf of her minor son K . K on attaining majority filed suit for declaration that the sale deed executed by her
mother was void and not binding on her; the suit was decreed. But the minor ‘ K ’ before taking possession died.
The respondent mother being Class I heir under
Section 6 of the Hindu Succession Act, 1956 succeeded to the estate of the deceasedK . The appellant
laid claim to the benefit of
Section 43, T.P. Act . It was held that the appellant did not make any diligent and reasonable enquiries
regarding the entitlement of the mother, to alienate the half share of the minor’s estate, the permission required
Page 20 of 45
S. 43. (A)
under the provisions of Guardian and Wards Act, 1890, for transferring the minor’s share was not obtained. The
contract was void, never came into existence, the contract was not subsisting. Second limits of Section 43 was not
satisfied in the case.96 A contract of transfer subsists even after a pre-emption decree is passed and pre-emption
money has been paid. 97
Estoppel fed automatically. —That at the option of the transferee the transfer operates on the
subsequently acquired interest automatically without a deed, is indicated by the illustration to the section where the
word "deliver" is used. Under Section 54, the mode of transfer by delivery is restricted to tangible immoveable
property of a value less than Rs. 100, and in the case of property of the value of Rs. 100 and upwards, it is
necessary for the parties to resort to a registered instrument. This distinction is not made by the present section.
Contract of transfer. —Under the section the transferor by false or erroneous representation professes
to transfer certain immoveable property to the transferee which is not the whole of his stipulated interest.
Consequently the contract of sale cannot be considered to have been fully executed, and hence the phrase
"contract of transfer" is used in the section in spite of the transfer having been made and before the acquisition of
the subsequently acquired interest, for the transfer has not taken place according to the settled terms between the
parties. According to Section 54 of the Act, "a contract for sale of immoveable property is a contract that a sale of
such property shall take place on terms settled between the parties." This leads to the distinction made in English
Law of discharge of a contract executory and executed. It is competent for both parties to an executory contract, by
mutual agreement, without any satisfaction to discharge the obligation of that contract. But an executed contract
cannot be discharged except by a release under seal, or by performance of the obligation, as by payment, where
the obligation is to be performed by payment. 1
Proviso. —The option reserved to the transferee under the section is liable to be defeated by a
subsequent transferee in good faith for consideration without notice of the existence of the option, but the absence
of any of the three necessary requisites here enumerated would defeat the rights of the subsequent transferee. 2
A mortgage was executed on behalf of A by her husband N in favour of B in 1877. On A’s death the property
passed to N and other heirs. In 1886 N executed a mortgage of his share inherited from A to C . C purchased in
execution of his mortgage decree the property mortgaged to him and obtained possession in 1892. C was found not
to be a bona fide purchaser for value without notice of the share purchased by him. In 1891 B brought a suit on his
mortgage against the mortgagor’s heirs and against C as puisne mortgagee. It was held that before a subsequent
purchaser could be bound by the principle of equity which underlies that section, it is necessary to find whether the
purchaser was a bona fide purchaser for value without notice. Issue was sent down as no finding of the lower Court
was recorded on this point. 3 On partition of property, cosharers who become joint lessor of a building can bring
separate suit for their share of rent of the building against the lessee, where the lessee has been paying for several
months, their shares of rent separately. 4
If a transferor without title has once become entitled to a valid estate in the land, the transferee’s equity would
attach upon it in the hands of all persons claiming under the transferor otherwise than for a legal interest by
purchase for value without notice—the heir inclusive. 5 The subsequent transferee’s knowledge of the original
transfer is immaterial. What is material is that he should have notice of the existence of the original transferee’s
option to proceed against the transferor. 6
Whether any and what inquiry should be made to ascertain that the ostensible owner was the real owner of the
property depends on the facts and circumstances of each case. 83 Whether a transferee from an ostensible owner
took reasonable care to ascertain that the transferor had power to make the transfer, has no doubt to be determined
with reference to the circumstances of the particular case, the test being whether he acted like a reasonable man of
Page 21 of 45
S. 43. (A)
business and with ordinary prudence. But the question whether that test has or has not been properly applied in any
particular case cannot be regarded as one of pure fact not open to review in a second appeal.
Pleas of " non est factum ." —It has been doubted whether the old authorities
on the plea of non est factum extend beyond cases where the party is blind or illiterate. These were the
observations in a case where it was held that misrepresentation being only as to the contents of a deed known by
the defendant to deal with the property, the plea failed. 7 In a more recent case the defence of non est factum was,
however, allowed to prevail where the defendant’s signature was obtained by fraud, he being ignorant of the
contents of a document which was represented to him as an insurance paper when in fact it was a guarantee. 8
Lessor and lessee. —As between these, when once the relation is established, if any estate or interest
passes from a lessor or his real title is shown upon the face of the lease, there can be no estoppel. If a lessor has
no title and the lessee be evicted by title paramount, he may plead that as a defence to an action by the lessor. But
so long as a lessee continues in possession under the lease he cannot set up any defence founded upon the fact
that the lessor, nil habuit in tenementis and upon the execution of the lease there is, in contemplation of the law,
created in the lessor a reversion in fee simple by estoppel which passes by descent to his heir and by purchase to
his assignee, who may sue on the covenants in the lease. This was the decision in Cuthbertson v. Irving , 9 where
Martin B., employing the metaphor feeding the estoppel, observed, "There are some points in the law relating to
estoppels which seem clear. First, when a lessor without any legal estate or title demises, to another, the parties
themselves are estopped from disputing the validity of the lease on that ground; in other words, a tenant cannot
deny his landlord’s title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants
a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then
take effect in interest and not by estoppel; and an action will lie by the assignee of the reversion against the tenants
on the covenants in the lease, Webb v. Austin , 10 and by the tenant against the assignee of the reversion,
Sturgeon v. Wingfield ." 11 It has been held that when a lessor is by his recital shewn to have a specific estate and
the Court finds that the parties proceeded upon the assumption that such an estate was to pass, an estate by
estoppel is created between the parties and those claiming under them in respect of any after-acquired interest of
the grantor, the newly acquired title being said to feed the estoppel. The principle is not inapplicable to a case
where there was originally no title at all and is not confined in its application to cases where there is an enlargement
of an existing interest. 12
Mortgagor and mortgagee. —The principle of the section also applies as between mortgagor and
mortgagee. T and D sued DD for recovery of certain property. The suit was decreed and the defendant appealed.
The plaintiff mortgaged 8 biswa share in village U which was part of the property in dispute to W By compromise
each of the parties got half of the property mortgaged and it was further provided that DD should pay the debt due
to W . W , having sold his rights as mortgagee, the purchaser sued on the mortgage. The Court held that the
mortgage was enforceable only against 4 biswa share of the village which was still held by T and D No party who
has made a transfer to another is entitled to say that the transferee has no right to the property. This principle has
been stretched so far as to enact a rule of law in the present section, where, a person without owing a property
purports to transfer it, he would be bound to make good the transfer, if later he acquires the property. 13
No title. —Both
Section 43 of the Transfer of Property Act and Section 13 (a)of the
Specific Relief Act, 1963 , apply to cases where there is no title at all and are not confined in their
application to cases where there is an enlargement of an existing interest. A conveyance of a non-existent property
though inoperative, as a conveyance, is operative as an executory agreement, which would attach to the property
the moment it is acquired by the grantor and which in equity would transfer the beneficial interest to the purchaser
without any new act being done by the vendor to confirm the conveyance.14 The equitable principle is expressed in
the dictum of Lord Westbury in Holroyd v. Marshall , 15 that if a vendor or mortgagor agrees to sell or mortgage
property of which he is not possessed at the time and he receives consideration for the contract and afterwards
becomes possessed of the property, answering the description in the contract, a Court of Equity would compel him
to perform the contract and the Court would in equity transfer the beneficial interest to the mortgagee or purchaser
Page 22 of 45
S. 43. (A)
immediately on the property being acquired.
Court sales. —The case of an execution sale, however, stands on an obviously different footing. The
decree-holder does not guarantee the title of the judgment-debtor; the intending purchaser knows that under the
law he can acquire nothing beyond the right title and interest of the judgment-debtor. 16
It is well settled that the doctrine does not apply to a sale when made by or through Court because of its very
nature, it being involuntary from the sufferer’s angle. Neither the provision of Section 41 nor that of Section 43 of the
Act are available for the benefit of the auction of purchaser, for these provisions come to the rescue of transferees
from ostensible owners or of transferees who purchase property in good faith from unauthorized persons and who
subsequently acquire interest in the property transferred. These two provisions get enlarged in voluntary transfers
and not in involuntary transfers, like auction sales. There is no question of Court ever playing the role of an
ostensible owner or a representative owner of the property when selling, so as to attract the provisions of Section
41 or 43 of the Act. 17
Third Schedule, paragraph 11 of the

Civil Procedure Code of 1908. —A transfer made in contravention of the provisions of this paragraph
is void and of no legal effect whatever. Section 43 does not apply to such a transfer. 18
Inquiry and reasonable care. —These elements, necessary under Section 41, are not essential under
the present section. 19
Exchange. —The section applies to an exchange of immoveable property which stands on the same
footing as a sale. A exchanged his property with B’s . At the time of the exchange B had only a half share in the
property but subsequently acquired the other half by purchase. It was held that as soon as B’s title was perfected,
the benefit accrued to A . 20 For right of party deprived of the thing received in exchange, see Section 119 of the
Act.
Official Receiver. —A purchaser from the Official Receiver, when the property of the insolvent did not
vest in him, can claim the benefit of the section when the property vests in him. The subsequent vesting order
makes the sale valid. It is not sale in execution of a decree or by order of the Court so as to attract the advantages
and the infirmities attending Court sales. 21
Insolvency. —Property, which had devolved upon the insolvent after adjudication and before discharge
but not claimed by the receiver, was held to attract the application of the section so as to entitle the mortgagee to
enforce his mortgage executed between the dates of adjudication and discharge. 22 In case of transfer of property
by an insolvent during his insolvency such transfers are respectively validated by reverter under
Section 37 of the Provincial Insolvency Act, 1920 , and if the conditions of
Section 43, T.P. Act are fulfilled and they may also be supported under that section.23
Grant of Government land and Section 43. —Any grant of the land belonging to the Government is a
Crown grant. and as provided by Sections
Section 2 and
3 of the
Page 23 of 45
S. 43. (A)
Government Grants Act, 1895 in case of Government grants restrictions against its alienation by the
grantee is valid and a purchaser and alienee cannot be allowed to urge that such a condition is opposed to the
provisions of the
Transfer of Property Act .24 Where a person purports to transfer a property without title, the transferee
gets a title only when the alienor gets a valid title, the estate would pass on to the transferee by application of the
doctrine of feeding the estoppel. 25
Where the Government land was granted subject to certain restrictions, and those restrictions could not be over-
ridden by the equitable doctrine or by applying the provisions of Section 43, the principle of feeding the grant by
estoppel did not apply. 26
Where the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands), 1978,
prohibited and declared the transfer of the land granted to the Scheduled Castes and Scheduled Tribes void, the
rights and interests of the transferee were extinguished, the transferee could not claim any compensation for the
improvements made by them under Section 51 of the Transfer of the Property Act. 27
Where the appellant had executed usufructuary mortgages in favour of the predecessors of the respondents of the
land belonging to Mutt, the Mutt was not the absolute owner of the property, though was in permissive possession,
the terms of the inam did not prohibit alienation on the passing of the Karnataka Certain Inam Abolition Act, 1977,
all the lands stood vested absolutely in the State Government free from all encumbrances, held on the regrant of
the land to the appellant all the contractual rights of the parties created prior to the passing of the Act, stood revived
in view of the provisions of
Section 6(a) and Section 43. —S. 6(a) and Section 43 relate to two different subjects, and there is no
conflict between them. Section 6 (a) deals within certain kinds of interests in property mentioned therein, and
prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a
transferor subsequently acquires. Section 6 (a) enacts a rule of substantive law, while Section 43 enacts a rule of
estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions,
and there can be no ground for reading a conflict between them or for cutting down the ambit of the one by
reference to the other. Both of them can be given full effect on their own terms, in their respective spheres. To hold
that transfers by persons who have only a spes successionis at the date of transfer are not within the protection
afforded by Section 43 would destroy its utility to a large extent. 29 Where a transferor has only a spes
successionists, representing that he has a present interest, the transferee can invoke the benefit of Section 43, if he
can show that acting on that representation he has taken the transfer in good faith and for consideration. 30
This section and

Specific Relief Act, 1963, Section 13 (a).—
Section 43 of the T.P. Act comes into play when a person fraudulently or erroneously represents that he
is authorized to transfer certain immovable property and profess to transfer such property for consideration, while cl.
(a) of Section 13, of
Specific Relief Act would come into play when the person with imperfect title has sold or leased the
property. There is some sort of representation whenever a person sells or leases property, the representation being
implicit and to the effect that he is competent to sell or let the property. Thus there is overlapping of the provisions
of the two sections.31
The actual right of the transferee under

Section 43, T.P. Act and cl. (a) of
Page 24 of 45
S. 43. (A)
Section 13, Specific Relief Act is however expressed in different language. In cases where Section 43
operates, the transferee, at his option, can have the transfer operate on any interest which the transferor may
acquire in the property at any time during which the contract for transfer subsists. The illustration to the section
indicates that the transferee can require the transferor to deliver the property acquired to him. The purchaser or
lessee on the other hand, acting under cl. (a) of Section 13, can compel the seller or the lessor to make good the
contact out of such interest. The difference between the two provisions is this that in the case of the operation of
Section 43, no recourse to Court is necessary. The transfer operates on the property transferred and the transferee
can call upon the transferor to deliver the property to him. The purchaser or the lessor having the right mentioned in
cl. (a) of Section 13 has to go to Court to compel the vendor or lessor to perform the contract out of the interest
subsequently acquired by him. The purchaser or lessee goes to the Court to enforce the contract and the contract
in cl. (a) of Section 13 must refer to the contract to sell or let and not to the contract of sale or lease, which, as
indicated earlier, if voluntary, would have covered the entire property contracted to be sold or leased, and if
enforced through Court no occasion for the operation of clause (a) of Section 13 would arise.32 Section 13 (a)of
Specific Relief Act , does not speak about any fraudulent or erroneous representation. No kind of
representation is necessary for the applicability of Section 13 (a) of the said Act.Section 13 also does not refer to
the agreement of sale being for consideration.33 As it is clear from the opening words of clause (a) of
Section 13 of Specific Relief Act there must be a completed sale or lease before the acquisition of
interest for entitling the purchaser or lessee to call upon the vendor or lessor to make the contract good. The
expression "has subsequent to the sale or lease" contained in clause (a) of
Section 13 of the Specific Relief Act does not mean subsequent to the agreement of sale or lease. It
means a completed sale and a completed lease. Section 13 (a) of the said Act does not refer to the right of specific
performance of the contract of sale. It refers to the right of purchaser for calling upon the vendor to make the
contract of sale good. The absence of the word "for consideration" in
Section 13 of the Specific Relief Act , does not introduce any element of difference in principle in the
application of
Section 13 of the Specific Relief Act and that of
Section 43 of the T.P. Act .34 There is no unconditional right vested in a person who has taken a contract
of enforcing the contract merely on the ground that the contracting party has acquired certain interest in the
property subsequent to the contract. It is only the purchaser who has the right to call upon the contracting party to
make the contract good. 35
Section 43 and U.P. Zamindari Abolition and Land Reforms Act, 1951, Section 166 .— Section 166
of the U.P. Zamindari Abolition and Land Reforms Act does not impinge upon the ambit of
Section 43 of the Transfer of Property Act .Section 166 governs transfer of Sirdari rights simpliciter. It
does not relate to the professed sale of Bhumidhari rights. Section 43 of course applies to transferable property but
the fact that the interest possessed by the transferor at the time of sale was not transferable will not conclude the
matter. If the transferor professed to sell a transferable interest Section 43 would apply, even though in fact the
transferor may not have had a transferable interest. The sale would fasten on the transferable interest if it is
acquired later.36 Where a transferor has executed sale deed before issuance of Bhumidhari certificate though had
deposited 20 times rental under the provisions of U.P. Zamindari Abolition and Land Reform Act, 1951 and
Bhumidhari Certificate is issued later, vendee can invoke Section 43. 37 Where however the transferor did before
the died before the issuance of Bhumidhari Certificate, Section 43 was held not applicable. 38
Where in a case under U.P. Zamindari Abolition and Land Reforms Act, 1951, a Sirdar deposits the prescribed
amount for acquiring Bhumidhari rights and executes the sale-deed on the day he deposits the amount and thus
erroneously represents to the vendee that he is authorized to transfer the property and professed to transfer such
property for consideration, the provisions of
Section 43 of the T.P. Act are attracted, the vendee is entitled to the protection under
Section 43 of the T.P. Act . A suit filed by the vendor’s son on the ground that the vendor has no right to
execute the sale deed was rejected as he could not claim to be abona fide transferee in good faith. 39
Illustrative cases. — Where at the time of sale S had no right to sell the property, but after the death of
one M , he acquired the property as successor of M , the principle of feeding the grant by estoppel was held
Page 25 of 45
S. 43. (A)
attracted in the case, the sale deeds executed by S in favour of the appellants were held not illegal or void. 40
The recitals in sale deed showed that the plaintiff asserted that she was having a share in the plaint schedule
property and it was on making such a representation that she seemed to have sold her share in the plaint schedule
properties to the defendant. By her act made to the defendant, the defendant acted upon the words and parted with
the consideration demanded by the plaintiff and hence the plaintiff could not be allowed to deny that representation
on the faith of which the defendant acted. Therefore, the plaintiff could not now turn around and say that she had no
transferable right at the time of transfer. 41
Transfer by one co-owner.
6 Radhey Lal v. Mahesh Prasad ,

(1885) 7 All 864 ; Sarat Chunder Dey v. Gopal Chunder Laha ,
(1893) 20 Cal 296 : 19 IA 203.
7 ILR 22 All 226 : 24 All 160.

1962 SC 847 (852) : 1962 Supp (1) SCR 554.
9 Renu Singh v. Mahendra Singh, 2003 AIR SCW 993 (999).
10 L.Rs of Late Bheru Lal v. Mohammad Ibrahim ,

2006 (2) Raj LW 1694 (1700) :
2006 (3) Raj LR 228 (Raj).
11 Keerat Singh v. Ramjee ,

2006 (3) Jab LJ 166 (176) (MP).

AIR 2012 Ker 107 [
LNIND 2012 KER 347 ] (109) : 2012 (2) KLT SN 27 :
2012 (2) KLJ 273

SC 1058 (1060) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ].

SC 1058 (1060) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ].
Page 26 of 45
S. 43. (A)

SC 1058 (1060) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ].

1962 SC 847 (852) : 1962 Supp (1) SCR 554.
17 Kartar Singh v. Harbans Kaur,

(1994) 4 SCC 730 (732); Sheo Ram v. Gauri Shanker ,
AIR 1954 All 452 [
LNIND 1953 ALL 293 ]: 1954 All LJ 92 ; Bhiku Keru v. Dasrath ,
AIR 1967 Bom 267 [
LNIND 1965 BOM 75 ] (269); Krishna Laxman Bhatkar v. Vithal Ganesh Athavale ,
AIR 2004 Bom 418 [
LNIND 2003 BOM 860 ] (421) :
(2004) 3 Bom CR 835 [
LNIND 2003 BOM 860 ].
18 Ram Krishna v. State of U.P. ,

AIR 1987 All 100 [
LNIND 1986 ALL 42 ] (106) (DB).

SC 1058 (1060) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ] ; Bhiku Keru Gade v. Dashrath ,
AIR 1967 Bom 267 [
ILR 1966 Bom 997 [
LNIND 1965 BOM 75 ] : 68 Bom LR 464.
20 Parma Nand v. Champa Lal ,

AIR 1956 All 225 [
LNIND 1955 ALL 238 ] (229) (FB) : 1956 All LJ 1 :
ILR 1956 (1) All 313 : 1956 All WR HC 61; Premnath Khanna v. State of Orissa,
AIR 2009 Ori 166 [
LNIND 2009 ORI 59 ] (169) : 2009 (107) Cut LT 362.

AIR 1956 All 225 [
ILR 1956 (1) All 313 : 1956 All WR HC 61.

AIR 1956 All 225 [
ILR 1956 (1) All 313 : 1956 All WR HC 61.
23 Sri Nipra Channebasava Deshikendra Swamigalu Mathadhipathigalu v. C.P.

Koveeramma ,
ILR (2008) Kant 805 (Kant-DB).
24 Sadhu Saran Ahir v. Sheo Prasad Kanu ,

AIR 1959 Pat 278 : ILR 37 Pat 1078.
Page 27 of 45
S. 43. (A)
25 Jharu Ram Roy v. Kamjit Roy,

2009 (3) Raj LW 2186 (2189) (SC) :
2009 (2) SCALE 35 [
LNINDORD 2009 SC 300 ] :
(2009) 4 SCC 60 [
LNINDORD 2009 SC 300 ] :
(2009) 4 Mah LJ 676 :
2010 (2) JCR 179 (SC)

(1994) 4 SCC 730 (732):
(1994) 2 SCALE 494 .

(1994) 4 SCC 730 (732, 733):
(1994) 2 SCALE 494 .
AIR 1980 Ori 95 [
LNIND 1980 ORI 67 ] (98) (DB):
(1980) 49 CLT 343 ; Abdul Kabir v. Jamila Khatun , 31 PLT 84; R.V. Suundariah v.
B.R. Ramasastry ,
AIR 1955 Mys 8 : ILR 1955 Mys 1.
29 Sundrabati Kuer v. Muhammad Alam ,

AIR 1955 NUC 242 (Pat) : 1 BLJ 227.
30 Tilak Raj v. Gian Chand , 49 PLR 302.
31 Venkayamma v. Veerayya ,
AIR 1957 AP 280 [
1956 Andh LT 1045 .
32 Gomathy Ammal v. Rukmini Amma ,

AIR 1967 Ker 58 [
LNIND 1966 KER 33 ] (59) (DB) :
(1966) 2 Ker 221 .
33 Bhagwan Das v. Candra Kali ,

AIR 1979 All 350 (351).

AIR 1979 All 350 (353).
35 B.S.D. Mahamandal v. Prem Kumar , AIR 1985

SC 1102 (1107) :
(1985) 3 SCC 350 [
LNIND 1985 SC 195 ].
Page 28 of 45
S. 43. (A)
36 Renu Devi v. Mahendra Singh, 2003 AIR SCW 993 (999) : AIR
2003 SC 1608 :
(2003) 10 SCC 200 [
LNIND 2003 SC 1262 ].
37 Jhulan Prasad v. Ram Raj Prasad ,

AIR 1979 Pat 54 (57) :
1978 Pat LJR 600 .
38 Jhulan Prasad v. Ram Raj Prasad ,

AIR 1979 Pat 54 (57) :
1978 BLJR 825 .

SC 1058 (1062) :
(2007) 2 SCC 404 [
LNIND 2007 SC 120 ].
40 Fatte v. Banshilal ,
AIR 1974 MP 16 (21, 22):
1973 Jab LJ 754 :
1973 MPLJ 617 .
41 Banwari Lal v. Sukhdarshan , AIR

1973 SC 814 (816) :
(1973) 1 SCC 294 .
42 Jan Mohammad v. Karm Chand , AIR

1947 PC 98 (103, 104) : 51 CWN 850.
43 Abdul Dadamiya Shaikh v. Jagannath Murlidhar , Rathi

AIR 2002 Bom 413 [
LNIND 2002 BOM 235 ] (417):
(2003) 1 Bom CR 537 [
LNIND 2002 BOM 235 ]; Ladu Narain Singh v. Gobardhan Das ,
AIR 1925 Pat 470 (DB) : 86 IC 721.
44 Abdul Dadamiya Shaikh v. Jagannath Murlidhar , Rathi

AIR 2002 Bom 413 [
LNIND 2002 BOM 235 ] (417):
(2003) 1 Bom CR 537 [
LNIND 2002 BOM 235 ]; Ladu Narain Singh v. Gobardhan Das ,
AIR 1925 Pat 470 (DB) : 86 IC 721.
45 Jote Singh v. Ram Das Mahto ,1996 AIR

SC 2773 (2773) :
(1996) 5 SCC 524 [
(1879) ILR 4 Cal 677.
46 Kartar Singh v. Harbans Kaur , AIR 1993 P&H 186 (188):

(1993) 10 PLR 732 .
Page 29 of 45
S. 43. (A)
47 AIR
1962 SC 847 (852) : 1962 Supp (1) SCR 554.
48 Kartar Singh v. Harbans Kaur , AIR 1993 P&H 186 (189, 190):
(1993) 103 PLR 732 .
49 Panna Lal v. Abdul Wahid , 1961 MPLJ (Notes) 207 (MP); Nairam v. Hazarilal , 1962
MPLJ (Notes) 3 (MP).
50 Raghava Menno v. Kuttappan Nair ,

AIR 1962 Ker 313 [
LNIND 1961 KER 343 ] (318) (FB) :
1962 Ker LT 243 .
51 Ramaswamy Pattamali v. Lakshmi ,

AIR 1962 Ker 313 [
LNIND 1961 KER 343 ] (FB) :
1962 Ker LJ 364 .
52 Jagat Narain v. Lalji ,

AIR 1965 All 504 : 1965 All LJ 265 ).

AIR 1965 All 504 (508) : 1965 All LJ 265.

AIR 1965 All 504 (506) : 1965 All LJ 265.
55 Ramaswamy Pattamali v. Lakshmi,

AIR 1962 Ker 313 [
LNIND 1961 KER 343 ] (317) :
1962 KLT 243 (FB); Lyle-meller v. A. Lawis and Co. (Westminister) Ltd. ,
(1956) 1 All ER 247 (251).
56 Panchannan Lal v. Nirode Kumar ,

AIR 1962 Cal 12 [
LNIND 1960 CAL 153 ] (16) (DB).
57 Rampyari v. Ramnath ,
AIR 1963 All 599 [
LNIND 1962 ALL 168 ].

AIR 1979 All 350 (352); Sardarni Mohinder Kaur v. Chief Commr. ,
AIR 1982 NOC 183 (P&H).
59 Sardarni Mohinder Kaur v. Chief Commr .,

AIR 1982 NOC 183 (P&H).
Page 30 of 45
S. 43. (A)
60 Taylor v. Needham , (1810) 2 Taunt 278 : 127 ER 1084; Clemow v. Geach , (1870) 6 Ch.
App. 147.
61 Doe d Williams v. Lloyd , (1839) 5 Bing NC 741 : 132 ER 1286.
62 Jagan Nath v. Dibbo ,

(1909) 31 All 53 ; Abdul Damadiya Shaikh v. Jagannath Murlidhar Rathi ,
AIR 2002 Bom 413 [
LNIND 2002 BOM 235 ] (417); Ladu Narain Singh v. Goverdhan Das ,
AIR 1925 Pat 470 (DB); Ganga Baksh Singh v. Madho Singh ,
AIR 1955 All 288 [
LNIND 1954 ALL 235 ] (FB); Sahadu Saran Ahir v. Sheo Prasad Kanu ,
AIR 1959 Pat 278 : ILR 37 Pat 1078.
63 Ganga Baksh Singh v. Madho Singh

,
AIR 1955 All 288 [
LNIND 1954 ALL 235 ] (FB); Kothalanka Durga Vara Prasada Rao v. Datla
Chandraia ,
2011 (6) ALD 642 (A.P.).
64 Kothalanka Durga Vara Prasada Rao v. Datla Chandraia ,

2011 (6) ALD 642 (A.P.).
65 Krishna Chandra v. Rasik Lal ,

(1916) 21 CWN 218 PC.
66 Dooli Chand v. Birj Bhookun , (1880) 6 C.LR 528 PC.
67 Mahipat Missir v. Ganpat Shah ,

AIR 1963 Pat 277 (DB).
68 Williams v. Pinckney , (1897) 67 LJ Ch. 34.
69 Palmer v. Ekins , (1728) 11 Mod. Rep. 407 : 92 ER 505; Bowman v. Taylor , (1834) 2 Ad.
& El. 278 : 111 ER 108; Right (d), Jefferys v. Bucknell , (1831) 2 B. & Ad. 278 : 109 ER 1146.
70 Davies v. Bush , (1825) M’cle. & Yo. 58 : 148 ER 324.
71 James v. Landon , (1585) Cro. Eliz 36 : 78 ER 302; Hayne v. Maltby , (1789) 3 Term.
Rep. 438 : 100 ER 665.
72 Premnath Khanna v. State of Orissa,

AIR 2009 Ori 166 [
LNIND 2009 ORI 59 ] (170) : 2009 (107) Cut LT 362
73 Bansidhar v. Sant Lal ,

(1888) 10 All 133 ; Gaya Din v. Kashi Gir ,
(1907) 29 All 163 .
Page 31 of 45
S. 43. (A)
74 Rakappa v. Chockalingam ,
AIR 1964 Mad 122 [
LNIND 1963 MAD 65 ] (126) (DB); See also Vytla Veerasami v. Ivaturi Durga
Venkata Subbarao ,
AIR 1957 AP 288 [
LNIND 1956 AP 132 ]: 1956 Andh WR 1115 ; Sankari Ammal v. Ramchandra ,
AIR 1954 Mad 861 [
LNIND 1953 MAD 223 ]: (1954) 2 Mad LJ 569.

AIR 1956 All 225 [
ILR 1956 (1) All 313 . See also Kothalanka Durga Vara Prasada Rao v. Datla
Chandraia ,
2011 (6) ALD 642 (A.P.).
76 Kothalanka Durga Vara Prasada Rao v. Datla Chandraiah ,

2012 (3) ALT 35 (A.P.)
77 The General Finance Mortgage and Discount Co. v. Liberator Permanent Benefit Building
Society , (1878) 10 Ch. D. 15.
78 The General Finance Mortgage and Discount Co. v. Liberator Permanent Benefit Building
Society , (1878) 10 Ch. D. 15; Onward Building Society v. Smithson , (1893) 1 Ch. 1; Williams v. Pinckney,
(1897) 77 LT 700 .
79 Heath v. Crealock , (1874) 10 Ch. App. 22.
80 Lawison v. Tremere , 1 A. & E. 792; Heath v. Crealock , (1874) 10 Ch. App. 22; Onward
Building Society v. Smithson , (1893) 1 Ch. 1.
81 Doe d Viscount Downe v. Thompson,

(1847) 9 QBD 1037 ; Ramkrishna v. Anusuyabai ,
(1924) 26 Bom LR 173 [
LNIND 1923 BOM 198 ]; Sukhada Moyi Dasi v. Atul Chandra ,
AIR 1923 Cal 165 .

AIR 1924 Oudh 209 .
83 Smith v. Low , (1739) 1 Atk. 489 : 26 ER 310.

AIR 1924 Oudh 209 .
85 Gurmail Singh v. Udham Kaur , AIR 1999 P&H 300 (302, 303):
(1999) 122 PLR 747 ; See also Biswanath Sahu v. Tribeni Mohan ,
AIR 2003 Ori 189 [
LNIND 2003 ORI 191 ]: (2003) I OLR 522.
Page 32 of 45
S. 43. (A)
86 Biswanath Sahu v. Tribeni Mohan ,

AIR 2003 Ori 189 [
LNIND 2003 ORI 191 ]: (2003) I OLR 522.
87 Javerbhai v. Gordhan , (1915) 39 Bom 358 ; Haribhai v. Nathubhai , (1914) 38 Bom 249 ;
Jijibhai v. Nagji ,
(1909) 11 Bom LR 693 ; Krishnan v. Sankara Varma , (1886) 9 Mad 441.

(1994) 4 SCC 730 (732, 733):
(1994) 2 SCC 494 ; Dwarka Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 ; Sumsuddin v. Abdul Husein , (1907) 31 Bom 165 ;
Bindeshwari v. Har Narain ,
AIR 1929 Oudh 185 .
89 Narahari v. Siva Korithan Naidu,

(1913) 24 MLJ 462 [
90
(1923) 50 Cal 929 : 50 IA 239.
91 Prasanna Kumar v. Srikantha Rout ,

(1913) 40 Cal 173 (186).

(1921) 48 Cal 1 (20); Doe d. Christmas v. Oliver , (1829) 10 B. & C. 181 : 109 ER
418; Webb v. Austin, (1844) 13 LJCP 203 : 135 ER 282.
93 Fernando v. Gunatillaka,
(1921) 2 AC 357 (366); Rajapakse v. Fernando,
(1920) AC 892 (897).
94 General Finance Mortgage and Discount Co. v. Liberator Permanent Benefit Building
Society , (1878) 10 Ch. D. 15.
95 (1829) 10 B. & C. 181 : 109 ER 418.
96 Heath v. Crealock , (1874) 10 Ch. App. 22; General Finance Mortgage & Discount Co. v.
Liberator Permanent Benefit Building Society , (1878) 10 Ch. D. 15; Poulton v. Moore , (1915) 1 K.B. 400.
97 Smith v. Osborne, (1857) 6 HLC 375 ; In re Harper’s Settlement , (1919) 1 Ch. 270.
98 Silla Chandra v. Ramchandra Sahu , AIR

1964 SC 1789 :
(1964) 7 SCR 858 [
LNIND 1964 SC 155 ] ; Bhiku Keru Gade v. Dashrath ,
AIR 1967 Bom 267 [
Page 33 of 45
S. 43. (A)
1 H.P.A. International v. Bhagwandas Fateh Chand Daswani , AIR

2004 SC 3858 (3881, 3882) :
(2004) 6 SCC 537 [
LNIND 2004 SC 669 ].
2 Lachman Prasad v. Sarman Singh ,

(1917) 39 All 500 : 44 IA 163; Sahu Ram v. Bup Singh ,
(1917) 39 All 437 : 44 IA 126; Ram Sahai v. Parbhu Dayal , (1921) 43 A.I. 655;
Madho Parshad v. Mehrban Singh ,
(1891) 18 Cal 157 : 17 IA 194; Daya Ram v. Harcharan Das , (1927) 8 Lah 678 ; Jai
Narain v. Mahabir Prasad ,
(1927) 2 Luck 226 ; Anant Ram v. The Collector of Etah ,
(1918) 40 All 171 P.C.; Anar Dayal v. Har Prasad ,
(1920) 5 PLJ 605 ; Mathura v. Kajakumar ,
(1921) 6 PLJ 526 .
3 Ram Ratan v. Ganga ,

AIR 1923 Oudh 265 .
4 Aisha Bibi v. Mahfuz-un-nissa Bibi ,

(1924) 46 All 310 ; Manjappa v. Krishnayya , (1906) 29 Mad 113.
5 Badan v. Murari Lal ,

(1915) 37 All 309 .
6 Mahadeo Singh v. Har Buksh ,

AIR 1928 Oudh 13 .

AIR 1924 Oudh 209 .
8 Ramkrishna v. Anusuyabai ,
(1924) 26 Bom LR 173 [
LNIND 1923 BOM 198 ]; Sakhadamoyi Dasi v. Atul Chandra ,
AIR 1923 Cal 165 .
9 Abdul Dadamiya Shaikh v. Jagannath Murlidhar Rathi

,
AIR 2002 Bom 413 [
LNIND 2002 BOM 235 ] (417):
(2003) 1 Bom CR 537 [
LNIND 2002 BOM 235 ]; Krishna Laxman Bhatkar v. Vithal Ganesh Athavale ,
AIR 2004 Bom 418 [
LNIND 2003 BOM 860 ] (421) :
(2004) 3 Bom CR 835 [
LNIND 2003 BOM 860 ]; Ganesh Patra v. Banabihari Patra ,
AIR 2004 Ori 23 [
LNIND 2003 ORI 61 ]:
(2003) 96 CLT 436 ; M. Rathnam v. Susheelamma,
2009 AIHC 1657 (Kant) :
AIR 2009 Kant 79 [
LNIND 2008 KANT 498 ]; Neraichelvi v. K. Ranganatham,
2009 (77) AIC 519 (523) (Mad) :
2009 (1) CTC 791 [
LNIND 2008 MAD 3530 ]).
Page 34 of 45
S. 43. (A)
10 Neraichelvi v. K. Ranganatham, 2009 (77) AIC 519 (523) (Mad) :

2009 (1) CTC 791 [
LNIND 2008 MAD 3530 ]
11 Shivram Kisan Gunjal v . Ramesh Vishwanath Gunjal, 2011 AIR CC 1819 (1822) (Bom)
12 (1837) 6 A. & E. 469.
13 (1848) 2 Exch. 654.
14 (1859) 4 H. & N. 549.
15 (1875) 10 C.P. 316.
16 Mohori Bibee v. Dharmodas Ghosh ,

(1903) 30 Cal 539 : 30 IA 114; Sitaram v. Harkubai , (1908) 4 N.LR 28; Mt. Salu Bai
v. Bajat Khan , (1917) 13 N.LR 130; Dwarka Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 ; Adhilakshmi Ammal v. Nallashivan Pillai ,
AIR 1944 Mad 530 .
17 S.M.A. Samad v. Sahid Hussain ,

AIR 1963 Pat 375 .
18 Jagat Narain v. Laljee ,

AIR 1965 All 504 : 1964 All LJ 255.
19 Mahipat Missir v. Ganpat Sah ,

AIR 1963 Pat 277 : 1963 BLJR 536 :
ILR (1963) Cut 146 ).
20 Krishna Laxman Bhatkar v. Vithal Ganesh Athavale ,

AIR 2004 Bom 418 [
LNIND 2003 BOM 860 ] (423) :
(2004) 3 Bom CR 835 [
LNIND 2003 BOM 860 ].
21 Gopi Nath v. Rup Ram ,

AIR 1930 All 786 ; Krishna v. Dhirendra ,
(1929) 56 Cal 813 : 56 IA 74; Sundar Lal v. Ghissa ,
AIR 1929 All 589 ; Mulraj v. Indar Singh ,
(1926) 48 All 150 ; Ladu Narain v. Goberdhan ,
AIR 1925 Pat 470 ; Dwarka Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 ; Jabedali v. Prasanna ,
AIR 1923 Cal 423 ; Kodi Shankara v. Moidin,
(1918) 35 MLJ 120 [
LNIND 1918 MAD 34 ] ; Salu Bai v. Bajat Khan , (1917) 13 NLR 130 (152);
Hattikudur v. Andar,
(1915) 28 MLJ 44 [
LNIND 1914 MAD 378 ] ; Pandir Bangaram v. Karumoory Subbaraju , (1910) 34
Mad 159 ; Jagan Nath v. Dibbo ,
(1908) 31 All 53 ; Mokhoda Debi v. Umesh Chandra, (1907) 7 CLJ 381.
Page 35 of 45
S. 43. (A)
22 Sukhadamoyi Dasi v. Atul Chandra ,

AIR 1923 Cal 165 .
23 Jabedali v. Prasanna ,
AIR 1923 Cal 423 .
24 Krishna v. Dhirendra ,
(1929) 56 Cal 813 : 56 IA 74.
25 Ladu Narain v. Goberdhan ,

AIR 1925 Pat 470 .
26 Krishna Chandra Pradhan v. Rabindra Narayan Das ,

AIR 1955 NUC 1859 (Ori-DB) :
ILR 1955 Ori 163 .
27 Ganeshdas v. Kamlabai ,
AIR 1952 Nag 29 : ILR 1952 Nag 629.
28 Jainur Ali v. Chafina Bibi ,

AIR 1951 Ass 20 : ILR 1951 Ass 1.
29 Girja Shanker v. Jagannath ,

AIR 1952 All 301 [
LNIND 1950 ALL 188 ] (303) : 6 DLR Notes 27 B.

AIR 1956 All 225 [
LNIND 1955 ALL 238 ] (230) : 1956 All LJ 1 (FB).
31 Aisha Bibi v. Mahfuz-un-nissa Bibi ,

(1924) 46 All 310 .
32 Virayya v. Hanumanta , (1891) 14 Mad 459.
33 Sulin Mohan v. Raj Krishna, (1921) 33 CLJ 193.
34 Ram Ratan v. Chaudhri Ganga Baksh ,

AIR 1923 Oudh 265 .
35 Muthuswami Pillai v. Sandana Velan ,

AIR 1927 Mad 649 [
LNIND 1926 MAD 497 ].
36 Sundar Lal v. Ghissa ,

AIR 1929 All 589 .
Page 36 of 45
S. 43. (A)
37 Sachchidanand Pandey v. Ram Phar Singh ,

AIR 2004 All 232 (234) :
2004 AIHC 3533 .
38 Ram Piari v. Ram Nath ,

AIR 1963 All 599 [
LNIND 1962 ALL 168 ]; Ramaswamy Pattamali v. Lakshmi ,
AIR 1962 Ker 313 [
LNIND 1961 KER 343 ]:
1962 Ker LJ 364 (FB).
39 Anand Padhan v. Dhuba Mohanty ,

AIR 1979 Ori 5 (8):
(1978) 46 CLT 483 .
40 M. Rathnam v. Susheelamma,
AIR 2009 Kant 79 [
LNIND 2008 KANT 498 ]:
2009 AIHC 1657 (1660, 1661) (Kant)
41 Chota Bhaira v. Purna Chandra ,

(1915) 19 CWN 1272 ; Smith v. Osborne, (1857) 6 HLC 375 (390); Re. Bridgwater’s
Settlement , (1910) 2 Ch. 342; Taylor v. Wheeler , (1706) 2 Vern. 564; Jennings v. Moore , (1709) 2 Vern. 609; Martin
v. Seamore , (1670) 1 Ch. Cas. 170; Holroyd v. Marshall, (1862) 10 HLC 191 ; Tailby v. Official Receiver,
(1888) 13 AC 523 .
AIR 1980 Ori 95 [
LNIND 1980 ORI 67 ] (98) (DB); Jagat Narain v. Laljee ,
AIR 1965 All 504 : 1965 All LJ 255 ; Kewaldas v. Ram Bharose , 1962 MPLJ
(Notes) 31); Juggan v. Board of Revenue , 1991 All LJ 1105 (1107) (All); Kishan v. Sita Ram ,
AIR 1951 Nag 241 : ILR (1951) Nag 12 : 1952 NLJ 106.

AIR 1956 All 225 [
LNIND 1955 ALL 238 ] (231) (FB) : 1956 All LJ 1.
44 Abdul Aziz v. District Judge , Rampur ,

AIR 1994 All 167 [
LNIND 1992 ALL 214 ] (168).
45 Narayan Chandra Saha v. Smt. Dipali Mukherje ,

2002 (2) CCC 93 (97) (Cal).
46 S. Kanaka Durga Manikyhamba v. Ramaprgada Surya Prakasa Rao ,

AIR 2010 AP 99 [
LNIND 2009 AP 838 ] (104).
47 Atal Shrivastava v. Devprasad, AIR 2012 Chh 117 (123) (DB)

Page 37 of 45
S. 43. (A)
48 B. Narayanaswamy Raju v. M. Krishnamoorthy Mudaliar ,

AIR 1998 Mad 193 [
LNIND 1998 MAD 379 ] (197).
49 Ramaswamy Pattamali v. Lakshmi ,

AIR 1962 Ker 313 [
LNIND 1961 KER 343 ] (FB) :
(1962) 2 Ker 130 (
AIR 1956 All 225 [
LNIND 1955 ALL 238 ] (FB) :
AIR 1957 AP 288 [
LNIND 1956 AP 132 ]; AIR
1961 SC 797 relied on ).
50 Chikkasidappa v. State of Karnataka ,

(2012) 5 Kar LJ 649 [
LNIND 2012 KANT 165 ] (Kar)
51 Jagdish Prasad v. Vth A.D.J. Bulandshar , 2005 (1) All WC 51 (54) (All).
52 Padmavati Estate v. Kusum Agarwal , 2008 (1) Cal LT 331 (334, 335) (Cal).
53 Johri v. Mahila Draupati ,

AIR 1991 MP 340 [
LNIND 1990 MP 162 ] (344) :
1991 MPLJ 217 ; Narayana Chandr Saha v. Smt. Dipali Mukherjee ,
2002 (20) CCC 93 (97) (Cal).
54 Johri v. Mahila Draupati ,

AIR 1991 MP 340 [
LNIND 1990 MP 162 ] (345) :
1991 MPLJ 217 ; see also Rattanmal v. Rudhalshah , AIR 1946 Sind 99 :
ILR 1945 Kar 455 .
55 Gangabai v. Baswant , (1910) 34 Bom 175.
56 Murrell v. Goodyear , (1859) 2 Ciff. 51 : 66 ER 22.
57 Rashmoni v. Surja Kanta Roy ,

(1905) 32 Cal 832 .
58 Zoliikofer & Co. v. Official Assignee , AIR 1927 Rang 100.
59 Gaya Din v. Kashi Gir ,

(1907) 29 All 163 .
60 Rustam Ali v. Abdul Jabbar ,

AIR 1923 Cal 535 .
Page 38 of 45
S. 43. (A)
61 Mahadeo Singh v. Har Bakhsh ,

AIR 1928 Oudh 13 .
62 Surja Narain v. Nanda Lal ,

(1906) 33 Cal 1212 .
63 Aisha Bibi v. Mahfuz-un-Nissa ,

(1924) 46 All 310 .
64 Behari Lal v. Indra Narayan ,

AIR 1927 Cal 665 ; Basar Khan v. Leakat Hossein ,
(1919) 23 CWN 841 (P.C.); Sarju Prasad v. Bindeshri ,
(1911) 33 All 382 ; Durga Das v. Muhammad Ismail , (1908) AWN 155 ; Surja
Narain v. Nanda Lal ,
(1906) 33 Cal 1212 ; Ajudhia Prasad v. Man Singh ,
(1902) 25 All 46 ; Ajijuddin v. Sheik Budan , (1895) 18 Mad 492 ; Shyama v. Ananda
,
(1880) 3 CWN 323 ; Deolie Chand v. Nirban Singh ,
(1879) 5 Cal 253 .
65 Manjappa v. Krishnayya , (1906) 29 Mad 113.
66 Raja Kishendatt v. Raja Mumtaz Ali ,

(1879) 5 Cal 198 : 6 IA 145.
67 Surendra Nath Roy v. Rajendra Chandra Chandra, (1918) 27 CLJ 289 ; Khobhari Singh
v. Ram Prosad Roy, (1907) 7 CLJ 387 ; Barnsidhar v. Sant Lal ,
(1887) 10 All 133 ; Buldeo Sahu v. N. B. Miller ,
(1904) 31 Cal 667 ; Gaya Din v. Kashi Gir ,
(1906) 29 All 163 .
68 Bhup Narain v. Gocul Chand ,

(1934) 38 CWN 393 ; Varden v. Luckpathy , (1862) 9 MIA 303 followed ; Himatlal v.
Vasudev , (1912) 36 Bom 446 ; Baburam Bag v. Madhab Chandra ,
(1913) 40 Cal 565 ; Tiruvenkatachariar v. Venkatachariar,
(1913) 26 MLJ 218 ; Naubat Rai v. Dhaunkal Singh ,
(1916) 38 All 184 ; Muhammad Sadik v. Masihan Bibi , (1930) 9 Pat 417 ; Peerkha
Lalkha v. Bapu Kashiba ,
(1923) 25 Bom LR 375 [
LNIND 1923 BOM 28 ], disapproved.
69 Radha Bai v. Kamod Singh ,

(1908) 30 All 38 .
70 Balbhaddar Singh v. Kusehar Das ,

AIR 1928 Oudh 344 .
71 Delhi Development Authority v. Ravindra Mohan Agrgarwal , AIR 1999

SC 1256 (1258) :
(1999) 3 SCC 172 [
LNIND 1999 SC 276 ].
Page 39 of 45
S. 43. (A)
72 Delhi Development Authority v. Ravindra Mohan Agrgarwal , AIR 1999

SC 1256 (1258) :
(1999) 3 SCC 172 [
LNIND 1999 SC 276 ].
73 Abdul Kafoor v. Abdul Razack

,
AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (DB) :
(1958) 2 MLJ 492 [
LNIND 1958 MAD 44 ] : ILR 33 Cal 363— Not good law); Maganlal v. Ramanlal ,
AIR 1943 Bom 362 : 45 Bom LR 761.
74 B. Narayanaswamy Raju v. M. Krishnamoorthy Mudaliar ,

AIR 1998 Mad 193 [
LNIND 1998 MAD 379 ] (197) :
1998 (2) MLJ 328 : 1998 (3) ICC 444.
75 Jote Singh v. Ram Das Mahto , 1996AIR

SC 2773 (2773) :
(1996) 5 SCC 524 [
(1879) ILR 4 Cal 677.
76 Sannamma v. Radhabhayi , (1918) 41 Mad 418 ; Narahari Sahu v. Korithan Naidu,

(1913) 24 MLJ 462 [
LNIND 1913 MAD 52 ] ; Sri Kakarlapudi v. Sri Raja Kandukuri,
(1915) 28 MLJ 650 [
LNIND 1915 MAD 130 ] followed ; Angannayya v. Narasayya,
(1908) 18 MLJ 241 overruled ; Ramayya v. Jagannadhan , (1916)
39 Mad 930.

AIR 1924 Oudh 209 (216).
78 Annada Mohan v. Gour Mohan ,

(1923) 50 Cal 929 : 50 IA 239; Bindeshwari v. Har Narain ,
AIR 1929 Oudh 185 ; Sri Jagannada v. Sri Rajah Prasada , (1916) 39 Mad 554 ;
Samsuddin v. Abdul Husein , (1907) 31 Bom 165 ; Dwarka Prasad v. Nasir Ahmad ,
AIR 1925 Oudh 16 .
79 Syed Bismilla v. Manulal Chabildas ,

AIR 1931 Nag 51 ; D. Sinclair v. Sitabkan, (1890) 3 CPLR 72.
80 Alamanayakunigari v. Murukuti,
(1915) 29 MLJ 733 ; Mahadeo Singh v. Har Baksh ,
AIR 1928 Oudh 13 ; Sarju Prasad v. Bindeshwar ,
(1911) 33 All 382 .
81 Jumma Masjid v. K.A. Desiah , AIR

1962 SC 847 : 1962 Supp (1) SCR 554 : (Mandapaka Sudarsana Rao v. Varada
Kameswara Rao Naidu,
AIR 1933 Mad 795 [
LNIND 1933 MAD 166 ]:
(1935) 69 MLJ 177 [
LNIND 1935 MAD 131 ] overruled ); Arulayia v. Jagadeesiah ,
Page 40 of 45
S. 43. (A)
AIR 1964 Mad 122 [

LNIND 1963 MAD 65 ] (DB) : 76 MLW 603 :
ILR (1964) 1 Mad 85 ; See also Desh Raj v. L.S. Singh , 1973 All LJ 168 (All-DB);
Lakhwinder Singh v. Paramjit Kaur , AIR 2004 P&H 6 (8):
(2003) 135 PLR 837 .
82 Narahari Sahu v. Sira Korithan Naidu,

(1913) 24 MLJ 462 [
LNIND 1913 MAD 52 ] ; Batchu Ramayya v. Dhara Satchi,
(1913) 25 MLJ 635 [
LNIND 1913 MAD 187 ] ; Ramaswami Naick v. Ramaswami Chetty , (1906) 30 Mad
255.
83 Radha Bai v. Kamod Singh ,

(1908) 30 All 38 .
84 Gopala Dasu v. Rami , (1921) 44 Mad 946 ; Adam v. Bapu , (1909) 33 Bom 116 ;
President and Governors of Magdalen Hospital v. Knotts,
(1879) 4 AC 324 ; Budesab v. Hanmanta , (1897) 21 Bom 509.
85 Jankirama Ayyar v. Nilakanta Ayyar , (1954) 2 Mad LJ 486 (DB); N. Srinivasa Rao v.
Special Court under the A.P. Land Grabbing (Prohibitation) Act,
(2006) 4 SCC 214 [
LNIND 2006 SC 204 ] (226) : AIR
2006 SC 3691 ; see also Indraloke Studio Ltd v. Santi Debi ,
AIR 1960 Cal 609 .

AIR 1959 Mad 131 [
LNIND 1958 MAD 44 ] (DB) :
(1958) 2 MLJ 492 [
LNIND 1958 MAD 44 ] : ILR 33 Cal 363— Not good law; Maganlal v. Ramanlal ,
AIR 1943 Bom 362 : 45 Bom LR 707 : 210 IC 274.
87 Ramkali v . State of U.P.,

AIR 2009 (NOC) 190 (All) : 2008 (5) All LJ 266 (All).
88 N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibitation) Act,
(2006) 4 SCC 214 [
LNIND 2006 SC 204 ] (226) : AIR
2006 SC 3691 .
89 Ajijuddin Sahib v. Sheik Budan Sahib , (1895) 18 Mad 492.
90 Durga Das v. Muhammad Ismail , (1908) AWN 155.
91 Krishnadhan v. Kanailal ,
AIR 1973 Cal 422 [
LNIND 1973 CAL 64 ] (424) : 77 CWN 450; Gomathy Ammal v. Rukmini Amma ,
AIR 1967 Ker 58 [
LNIND 1966 KER 33 ]:
(1966) 2 Ker 221 ; Parma Nand v. Champa Lal ,
AIR 1956 All 225 [
Page 41 of 45
S. 43. (A)
LNIND 1955 ALL 238 ]: 1956 Al LJ 1 (FB). Manmal S. Oswal v. Sahebjada A. Shiraji
, 2001 (3) Bom LR 166 (169): (2001) 3 All MR 348.
92 Krishnadhan v. Kanailal ,
AIR 1973 Cal 422 [
LNIND 1973 CAL 64 ] (424) : 77 CWN 450; Gomathy Ammal v. Rukmini Amma ,
AIR 1967 Ker 58 [
LNIND 1966 KER 33 ]:
(1966) 2 Ker 221 ; Manmal S. Oswal v. Sahebjada A. Shiraji , 2001 (3) Bom LR 166
(169): (2001) 3 All MR 348.
93 Manmal S. Oswal v. Sahebjada A Shiraji , 2001 (3) Bom LR 166 (169): (2001) 3 All MR
348.
94 Manmal S. Oswal v. Sahebjada A Shiraji , 2001 (3) Bom LR 166 (169): (2001) 3 All MR
348.
95 Manmal S. Oswal v. Sahebjada A. Shiraji , 2001 (3) Bom LR 166 (169): (2001) 3 All MR
348.

(1994) 4 SCC 730 (732, 733):
(1994) 2 SCC 494 ; Sheo Ram v. Gauri Shanker ,
AIR 1954 All 452 [
LNIND 1953 ALL 293 ]: 1954 All LJ 92.
97 Sheo Ram v. Gauri Shanker ,

AIR 1954 All 452 [
LNIND 1953 ALL 293 ]: 1954 All LJ 92 : 1962 Supp (1) SCR 554.
1 Foster v. Dawber , (1851) 6 Ex. 839 (851) : 155 ER 785.
2 Durga Das v. Muhammad Ismail , (1908) AWN 155.
3 Hanuman v. Gursahay, (1913) 18 CLJ 181.
4 Badri Prasad v. Shyam Lal Jaiswal ,

AIR 1963 Pat 85 (DB). (
AIR 1916 Cal 645 :
AIR 1942 Pat 120 :
AIR 1936 Bom 10 and
AIR 1923 Mad 577 [
LNIND 1923 MAD 41 ] relied on ).
5 Cheta Bhaira v. Purnaj Chandra ,

(1915) 19 CWN 1272 .

AIR 1924 Oudh 209 .
Page 42 of 45
S. 43. (A)
7 Howatson v. Webb , (1908) 1 Ch. 1; King v. Smith , (1900) 2 Ch. 425.
8 Carlisle and Cumberland Banking Co. v. Bragg,

(1911) 1 KB 489 .
9 4 H. & N. 742 : 157 ER 1034.
10 (1844) 7 Man. & G. 701 : 135 ER 282.
11 (1846) 15 M&W 224 : 153 ER 831.
12 Krishna Chandra v. Rasik Lal ,

(1916) 21 CWN 218 P.C.; Protab Chandra v. Judisthir Das, (1914) 19 CLJ 408 ;
Aditya Prasad v. Parmananda Patel ,
(1919) 4 PLJ 505 .
13 Shiam Lal v. Sohan Lal ,

(1928) 50 All 290 ; Eshaq Lal v. Dulla ,
AIR 1930 All 115 .
14 Rustam Ali v. Abdul Jaffer ,

AIR 1923 Cal 535 ; Surendra Nath v. Rajendra Chandra, (1918) 27 CLJ 289 ;
Kobhari Singh v. Ram Prosad, (1904) 7 CLJ 387 ; Holroyd v. Marshall, (1862) 10 HLC 191 ; Colleyer v. Isaacs , (1811)
19 Ch. D. 342; Tailby v. Official Receiver,
(1888) 13 AC 523 ; Baldeo Sahu v. N.B. Miller ,
(1904) 31 Cal 667 ; Bansidhar v. Sant Lal ,
(1887) 10 All 133 ; Gaya Din v. Kashi Gir ,
(1906) 29 All 163 ; Mohan Singh v. Pandit Seeba Ram ,
AIR 1924 Oudh 209 .
15 (1862) 10 HLC 191.
16 Prasanna Kumar v. Srikantha Rout ,

(1913) 40 Cal 173 .
17 Jote Singh v. Ram Das Mahto , AIR 1996

SC 2773 (2773) :
(1996) 5 SCC 524 [
LNINDORD 1996 SC 189 ] ; Shivapadegowda v. Anniahchar ,
AIR 1954 Mys 142 : ILR 1953 Mys 530.
18 Gaurishankar v. Chinnumiya ,
(1919) 46 Cal 183 ; Mt. Salu Bai v. Bajat Khan , (1917) 13 NLR 130 ; Murray v.
Murat Singh , (1907) 3 NLR 171 ; Magniram v. Bakubai , (1912) 36 Bom 510 dissented from.
19 Gopi Nath v. Rup Ram ,

AIR 1930 All 786 ; Maung Ba Tin v. Maung Po Kin , 14 Bur LR 329.
20 Bhairab Chandra v. Jiban Krishna, (1921) 33 CLJ 184.

Page 43 of 45
S. 43. (A)
21 Basava Sankaran v. Anjaneyulu , (1927) 50 Mad 135 ; Muthiah Chettiar v. Doraiswami

Pillai ,
AIR 1927 Mad 1091 [
LNIND 1927 MAD 489 ]; Sankaram v. Narasimhulu ,
AIR 1927 Mad 1 [
LNIND 1926 MAD 267 ]; Nagasami Aiyar v. Ramasami Aiyar,
(1924) 47 MLJ 755 [
LNIND 1924 MAD 316 ] ; Narasimudu v. Basava Sankaram,
(1924) 47 MLJ 49 .
22 Diwan Chand v. Manak Chand , (1935) 16 Lah 392 ; Narain Singh v. Har Gopal Tewari ,
(1933) 55 All 503 .
23 Subbaiah v. Ramasami ,
AIR 1954 Mad 604 [
LNIND 1952 MAD 172 ] (615) :
ILR (1954) Mad 180 (FB).
24 Chennappa v. State ,
AIR 1993 Kant 188 (193) :
ILR (1993) Kant 1589 ; Md. Serajuddin v. State of Orissa ,
AIR 1969 Ori 152 [
LNIND 1969 ORI 105 ].
25 M.C. Laxminarasappa v. Asst. Commissioner Chikkaballpur ,

AIR 1993 Kant 326 [
LNIND 1992 KANT 304 ] (331)
26 M.C. Laxminarasappa v. Asst. Commissioner Chikkaballpur ,

AIR 1993 Kant 326 [
LNIND 1992 KANT 304 ] (331)
27 Chennappa v. State ,
AIR 1993 Kant 188 (192, 193, 194) : ILR Kant (1993) 1589.
28 Sri Nipra Channebasava Deshikendra Swamigalu Mathadhipathigalu v. C.P.

Koveeramma ,
ILR (2008) Kant 805 (Kant).

1962 SC 847 (850); Jumma Musjid Marcara v. Kodimani Andra Devaiah ,
AIR 1953 Mad 637 [
LNIND 1952 MAD 261 ] (FB) :
ILR 1953 Mad 42 :
(1953) 1 MLJ 388 (Affirmed in Jumma Masjid v. Kodimaniandra
Deviah, AIR
1962 SC 847 , 1962 Supp (2) SCR 554); Desh Raj v. Lal Sahai Singh ,
AIR 1973 All 292 (293).

1962 SC 847 (852, 853) : 1962 Supp (2) SCR 554; Jameela Beevi v. Basheer,
2012(2) KLT SN 27 :
2012 (2) KLJ 273 .
Page 44 of 45
S. 43. (A)

1964 SC 1789 (1791, 1792) :
(1964) 7 SCR 858 [
LNIND 1964 SC 155 ] ; Sila Chandra v. Lalita ,
AIR 1959 Ori 169 [
LNIND 1959 ORI 12 ] (171) (DB) :
ILR 1959 Cut 81 : 25 Cut LT 448.

1964 SC 1789 (1791, 1792) :
(1964) 7 SCR 858 [
LNIND 1964 SC 155 ] ; Sila Chandra v. Lalita ,
AIR 1959 Ori 169 [
LNIND 1959 ORI 12 ] (171) (DB) :
ILR 1959 Cut 81 : 25 Cut LT 448.
33 Bhiku Keru Gade v. Dashrath ,

AIR 1967 Bom 267 [
ILR 1966 Bom 997 [
LNIND 1965 BOM 75 ] : 68 Bom LR 464.

AIR 1967 Bom 267 [
ILR 1966 Bom 997 [
LNIND 1965 BOM 75 ] : 68 Bom LR 464.

AIR 1967 Bom 267 [
ILR 1966 Bom 997 [
LNIND 1965 BOM 75 ] : 68 Bom LR 464. (Silla Chandra v. Lalita ,
AIR 1959 Ori 169 [
LNIND 1959 ORI 12 ]:
ILR 1959 Cut 81 : 25 Cut LT 448. relied on ).
36 Desh Raj v. Lal Sahai Singh ,

AIR 1973 All 292 (293) : 1973 All LJ 168.
37 Jagdip Singh v. Dy. Director of Consolidation , 1995 All LJ 888 (889) (All); see also Ram
Pyare v. Ram Narain , AIR
1985 SC 694 : 1985 All LJ 278 :
(1985) 2 SCC 162 [
LNIND 1985 SC 55 ] ; Annapurna v. Munshi ,
AIR 1967 All 531 [
LNIND 1966 ALL 145 ]:
1967 ALJ 315 ) (
AIR 1965 All 504 : 1965 All LJ 255 and AIR
1962 SC 847 followed ); Har Saran v. Board of Revenue U.P.,
Allahabad , 2004 (4) All WC 3764 (3768) (All).
38 Ramdeo v. Dy. Director of Consolidation ,

AIR 1968 All 262 [
LNIND 1966 ALL 127 ]
Page 45 of 45
S. 43. (A)
39 Ram Pyare v. Ram Narain , AIR

1985 SC 694 (696, 697) :
(1985) 2 SCC 162 [
LNIND 1985 SC 55 ] ; Har Saran v. Board of Revenue U.P., Allahabad , 2004 (4) All
WC 3764 (3768) (All).
40 Keerat Singh v. Ramjee ,

2006 (3) Jab LJ 166 (176) (MP).

AIR 2012 Ker 107 [
LNIND 2012 KER 347 ] (109) : 2012 (2) KLT SN 27 :
2012 (2) KLJ 273
End of Document
Darashaw Vakil
S. 44.
Where one of two or more co-owners of immovable property legally
competent in that behalf, transfers his share of such property or any interest
therein, the transferee acquires as to such share or interest, and so far as is
necessary to give, effect to the transfer, the transferor’s right to joint
possession or other common or part enjoyment of the property, and to
enforce a partition of the same, but subject to the conditions and liabilities
affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided
family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or
other common or part enjoyment of the house.
End of Document
S. 44. (A)
Darashaw Vakil
COMMENTS
Scope and application. —Under the section, on a transfer by a co-owner of a share
in immoveable property or of any interest therein, the transferee’s rights are :—
(1) To joint possession or other common or part enjoyment of the property with the other co-owner or co-
owners.
(2) To enforce a partition of the same.
His obligations are that he is subject
(1) To conditions and

(2) Liabilities affecting the share or interest at the date of the transfer.
The principle underlying Section 44 is that it is inequitable to permit a stranger to introduce himself upon the privacy
of a joint Hindu family residence. 42 Section 44 is attracted only in a case where family is an undivided family and
transferee has sold a share of the dwelling house. 43
Section 44 of the Transfer of Property Act, 1882 is part of a scheme of agnate and cognate statutes, and
in which laws, the object was that in a residential/dwelling-house of an undivided family, a stranger should not be
allowed to enter into possession. Of course, the stranger could seek partition and thereafter take the possession of
the property allotted to him on partition, however, till the property was partitioned by metes and bounds, the
stranger could not come into possession of the family dwelling-house. This provision of Section 44 has its
foundation in the customs and traditions of this country and its denizens wherein family privacy in a dwelling-house
was zealously guarded. People were traditional and conservative. This was more so because the ladies of the
family were expected to avoid contact with strangers. In many communities ‘purdah’ system was prevalent. It was
therefore required that the atmosphere and the privacy of a joint family in a dwelling house should be preserved
against the strangers though, the stranger, could enforce his right to possession through partition of the undivided
family house.44
Page 2 of 29
S. 44. (A)
Section 4 of the Partition Act, 1893 , read with

Section 44 of the T.P. Act represents a well knot legislative scheme for insulating the domestic peace of
members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee
of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and
mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative
scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family
who may obviously be having different outlook and mode of life including food habits and other social and religious
customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not
germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours
residing in the locality and in the near vicinity. With a view to seeing that such homogenous life of co-owners
belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the
entry of a stranger to the family, this statutory right or pre-emption is made available to the co-owners who
undertake to by out such undivided share of the stranger co-owner.45
Section 4 of the Partition Act, 1893 , and
Section 44 of the Transfer of Property Act are attracted only when the share/portion of undivided family
dwelling house is transferred. A stranger purchaser has no right to joint possession of an undivided family dwelling
house and his remedy is to seek for partition and separate possession.46 The Supreme Court has held that
Section 4 of the Partition Act, 1893 , can be invoked as weapon by a co-sharer only when the stranger
purchaser seeks partition.47 The occasion for a co-sharer to seek relief under
Section 4 of the Partition Act, 1893 , shall arise when the stranger purchaser files a suit for partition. In
the event a stranger purchaser does not file any suit for partition for years together, it may not be open for a co-
sharer to seek for relief under
Section 4 of the Partition Act, 1893 .48
A mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not
enough to give other co-sharers a right of pre-emption. In the instant case, the stranger purchaser did not claim any
partition though he was put in possession of his vendor’s flat and other co-shares of the said dwelling house had a
right to resist the said possession under Section 44 of the Act. As such, the other co-sharers could not exercise the
right of pre-emption under
Section 4 of the Partition Act, 1893 .49
The provisions of
Section 44 of the T.P. Act do not ipso facto make the transfer of a property, by a co-sharer, may be in
respect of dwelling house, to a third person bad and ineffective. Moreover
Section 44 of the Transfer of Property Act is applicable only when there is a question of transfer of an
immovable property and not in case of a loan transaction.50
There is no law which stipulates that a co-sharer must sell his or her share to only another co-sharer. Thus
strangers and outsiders can purchase share of a co-sharer even in dwelling house.
Section 44 of the Transfer of Property Act stipulates that the transferee of a share in a joint family
dwelling house if he is not a member of the said family gets no right to joint possession or common enjoyment of
the portion of the house so purchased. Thus
Section 44 of the Transfer of Property Act adequately protects the members of the joint family dwelling
house. The only manner in which an outsider can get possession of the property purchased by him/her is by filling
of a suit for separation of his/her share and pray for delivery of possession. Only after such a step is taken that the
provisions of
Section 4 of the Partition Act, 1893 , will come into play.51
Page 3 of 29
S. 44. (A)
When a co-sharer transfers a joint family property, the purchaser of such property can enforce a right to partition. 52
A co-sharer cannot transfer more than his share. 53 Before partition each individual co-sharer would be entitled to
every inch and particle of his land and no co-sharer could say that he holds a particular portion out of the land sold
and the rest is given to other cosharers. A co-sharer can transfer only his share, sale deed beyond that share
cannot be accepted. 54 Where a brother co-sharer in joint family property to the exclusion of another brother has
alienated his undivided share in the joint family property, the purchaser acquires only a right to seek partition and
not absolute right over any definite extent of property, in such an event the rights of the parties to the sale would be
governed by
Where a suit for partition is pending, during the pendency of the suit one co-owner without the consent of the other
co-owner executes lease and in the final decree passed in the case, the leased property is given to another co-
owner, that other co-owner would not be bound by the lease and can get the property allotted to him by filing
execution petition. 56
Section 44 of the Act does not create any charge on property on the basis of contract for sale. Rather Section 44
can be invoked only when there is a transfer by one co-owner. 57
There is no bar in a co-sharer transferring his share in property belonging to an undivided family.
Section 44 of the T.P. Act itself proceeds on such basis and recognises such right of transfer by a co-
sharer.58
Section 44 of the T.P. Act has two limbs. Under the first limb the purchaser by the purchase
acquires,inter alia , the right to joint possession of the property along with the other co-sharers. Under the second
limb the section does not entitle him to joint possession. Acquisition of a right to joint possession and giving effect to
such right are distinct questions. A purchaser is entitled to possession of the property purchased from his vendor
according to the nature of such property. If it is in the possession of tenants by letters of attornment and if it is in the
possession of the vendor by actual physical possession. The second limb provides "nothing in this section shall be
deemed to entitle him (transferee) to joint possession or other common or part employment of the house. 59 In case
there had been a severance of a joint status and no partition by metes and bounds then the first part of the section
is inapplicable, an embargo is put on the transferee from getting joint possession or other common or part
enjoyment of the house.
Section 44 of T.P. Act creates a legal bar and imposing a ban, it does not make any distinction between
plaintiff and defendant. If the transferee gets into possession of a share in the dwelling house, the possession
becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession and therefore
plaintiffs co-owner would be entitled to get a decree for eviction or even for injunction where the transferee
threatens to get possession by force.60
Where a plaintiff co-sharer instituted a suit for declaration that he was the exclusive owner of the sold property,
opposite party one of the co-sharers filed petition for injunction for restraining the plaintiff from parting with
possession of the sold premises and during the pendency of the application the plaintiff transferred the property to
an outsider, it was held that the defendant co-sharer was entitled to an injunction for restraining the plaintiff, his
servants and agents from parting with possession of the vacant portion of the disputed premises until the disposal
of the appeal. 61
The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income
from the joint family property would not amount to his exclusion from possession. 62 The general principle of law is
Page 4 of 29
S. 44. (A)
that in the case of coowners, the possession of one is in law possession of all, unless ouster or exclusion is proved.
To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of
the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from
the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes
that he is in joint possession unless he is excluded from such possession. 63
If several owners are in possession of an undivided property, none of them has a right to appropriate to his
exclusive use any portion of this property and this will effect a compulsory partition in his own favour according to
his choice. 64 One coparcener, therefore, has no right to place any constructions upon what belongs to all, and it he
does so, another coparcener may obtain a mandatory injunction for its removal without proving any special
damage. But where the defendant has made constructions on the joint property in a way not inconsistent with the
continuance of the joint ownership and possession, injunction will not issue as a matter of course. 65
One of several co-sharers of joint undivided property has no right to erect a building on the land which forms part of
such property so as to materially alter the condition thereof without the consent of his co-sharer. The Court will
interfere in a proper case, where the injury is of a permanent or recurring character or where there is a denial of title
or exclusion since such exclusion amounts to a forcible partition. 66
Where interest of the owner has already passed to the purchaser in the possession of the property, the provisions
of
Section 44 of the T.P. Act are not applicable.67
The provisions of Section 4 o (1)of the

Partition Act as also those of
Section 44 of the Transfer of Property Act would be an impediment to a remedy for partition where a
share of dwelling house belonging to an undivided family has been transferred to a person who is a stranger to the
family and who seeks partition of the house. The conditions precedent for invoking the provisions of the aforesaid
provisions are that the house must be a dwelling house, secondly it must belong to an undivided family, thirdly a
share of such a dwelling house has been transferred to a person which is stranger to the family and fourthly the
transferee sues for partition of the house.68 Where the house subject of suit was dwelling house but the same did
no belong to the undivided family, the stranger transferee was held entitled to seek partition of the house by metes
and bound. 69 Where female heirs transfer their rights and male heirs do not consent to divide their shares,
transferees from female heirs are not entitled to claim partition of the dwelling house in view of the provisions of
Section 23 of the Hindu Succession Act, 1956 .70
Acquisitions made by the managing co-owner even with the help of co-ownership funds, would not enure for the
benefit of all the co-owners. The remedy of the other coowners is to ask for an account of his share money invested
in the acquisition. 71
A member of an undivided family who has filed a suit for partition against a stranger defendant is entitled to the
benefit of
Section 4 of the Partition Act , even in a case where the defendant stranger does not claim his share by
partition of a dwelling house.72
In order to find out whether any relief under Section 44 of the Act can be had by the plaintiff, it would be necessary
to ascertain whether the disputed property constituted a dwelling house and whether the same belonged to an
Page 5 of 29
S. 44. (A)
undivided family. It would also be necessary to find out as to whether the transferee defendants are or are not
members of the undivided family. 73
Where there was suit for partition and possession of joint family property, in which two brothers had one half share
each, a preliminary decree for partiton of the suit property in two equal shares was passed, as the suit property was
subject to mortgage. The Court further directed that it was open to the plaintiff brother to redeem the mortgage on
payment of the mortgage amount, before the final decree was passed in the case. If the second brother did not pay
his share of the mortgage debt, the plaintiff would pay the entire mortgage debt and in that event the brother of the
plaintiff would not be entitiled to any share in the suit property. 74 In the instant case land belonged to two brothers,
and both were in possession of equal portion of land. One brother sold schedule land comprising of family dwelling
house, plaintiff purchaser filed suit for partition, demarcation and possession of schedule land purchased by him.
Held, suit property had lost its character as undivided family dwelling house, plaintiff was also not stranger to suit
property. As very foundation of concept of undivided family dwelling house was not available, question of right of
pre-emption would not arise, preliminary decree for partition passed in the case was held proper. 75 If the very
concept of the undivided family dwelling house is available then and then alone the question will arise in respect of
dismissal of the suit and/or right of pre-emption as per
Section 4 of the Partition Act, 1893 , read with
Section 44 of the Transfer of Property Act . If the very foundation of such concept is not available
factually or legally then the same cannot be made applicable.76
The
Transfer of Property Act is applicble to the property and it does not make any difference as to caste
creed or colour. Where a co-sharer in a dwelling house transfers his share to a stranger, the latter does not acquire
right to joint possession, he can only exercise the right for the enforcement of the partition of the house.77
Merely because the plaintiff’s ancestor was once a co-sharer of the alienees predecessor-in-interest, it cannot be
said that the plaintiff was a co-sharer in respect of the dwelling house so as to attract the provision of Section 44. 78
The question of applying Section 44 may stand on a different footing as relief under Section 44 is not confined to a
suit for partition. Even where a stranger transferee of a share of a dwelling house belonging to un-divided family has
entered into possession, injunction can be granted to keep him out possession. However, as Section 44 provides
such a question would arise only when one co-sharer alienates his shares in the dwelling house and right is vested
in other co-sharers in respect of the dwelling house to keep out such stranger purchaser from possessing dwelling
house either jointly or exclusively. 79
The object of Section 44 is to protect a house from invasion of the outsiders. Where though there is no division of
the house by metes and bounds, but the parties are in possession of their respective shares, the joint character of
the house ceases and
Section 44, T.P. Act cannot be applied in the case.80
A co-sharer, cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction
during the pendency of a suit for partition filed by the cosharers. Where a person has acquired the title to the
property only partly, he cannot be taken to be the full owner and he cannot exercise rights of exclusive ownership to
the detriment of other co-sharers. Unless he has his share demarcated in a suit for the partition or by any other
arrangement, he cannot put up construction either on their entirety or on a portion of the property. 81
Page 6 of 29
S. 44. (A)
S. 44 in terms does not apply but the principle underlying the section applies to sale in execution of a decree. 82
Where a plaintiff co-sharer is in possession of a part of the suit property with the consent of the defendant other co-
sharers, the question of the ouster of the defendant from the suit property does not arise, interim injunction for
restraining the defendant from interfering with the plaintiff’s possession over the suit property can be granted. 83
This Section and Indian

Partition Act, Section 4 .—The ratio of the decisions rendered under
S.4 of the Partition Act equally apply to the interpretation of second para of
Section 44, T.P. Act as the provisions are complimentary to each other and the terms "undivided family"
and dwelling house have the same meaning in both the sections.84 The principle underlying the provision in para 2
of Sectin 44 is that it is inequitable to permit a stranger to intrude upon the privacy of an undivided family residence.
But
Section 44 of the T.P. Act left the stranger purchaser free to have his share carved out in a suit for
partition. It is this mischief that was sought to be prevented by
Section 4 of the Partition Act . The object underlying Section 4 of the Act is to prevent the transferee of a
share in the family house, who is an outsider from forcing his way into the dwelling house in which other members
of his transferor’s family have a right to live.85
S.
Section 4 of the Partition Act is complementary to Section 44,Part (2) of the
T.P. Act .86
Section 4 of Partition Act was presumably enacted to afford the benefits of law of preemption to the
other communities in India, so far as the dwelling house is concerned. Thus, Sec tion 4 is logical sequel of
Section 44 T.P. Act and is only an extension of the privilege given to the shareholders by
Transferee. —Includes a mortgagee 88 as well as a lessee, 89 but clause 2 excludes a person who is
not a member of the family, so that a stranger cannot take the benefit of clause 1 where the share transferred is that
of a dwelling-house. 90
The only remedy of such a transferee is to seek a partition and not to force his way into the family dwelling-house. It
is therefore necessary for a Court when a suit is instituted by a stranger to an undivided family for a partition of a
dwelling-house to find first whether the house in question was a dwelling-house and belongs to an undivided family.
91 It is only to the dwelling-house belonging to the undivided family and not to every house that the restriction in
cluase 2 applies.
Transferee’s right under clause 1. —The purchaser from a member of an undivided Hindu family of
that member’s share in a specific portion of the ancestral family property cannot sue for a partition of that portion
alone and obtain allotment to himself by metes and bounds of his vendor’s share in that portion of the property; for
a suit for partial partition of an undivided family property will not lie. The transferee of a coparcener’s share can take
no higher right than his vendor possesses, and that is not a right to a certain share in each particular item of the
family property but a joing right with the other coparceners to the ownership and enjoyment of each individual item
with an incidental right to obtain a partition of the whole family property and have his share made over to him after
due provision for family debts and liabilities. 92 The rights of such purchaser are not extended by
Section 44 of the Transfer of Property Act which only gives him "the transferor’s right to joint possession
Page 7 of 29
S. 44. (A)
or other common or part enjoyment of the property and to enforce a partition of the same."
Where one of the co-owners transfers his share in the property, the transferee can seek declaration that the interest
of the co-owner transferor has been conveyed to him. 93 Where two out of three decree holders having specific
share in the undivided joint property transfer their interest to the lessees judgment debtors, the transfer would be
valid and the transferee would be entitled to joint possession of the property. 94
Liabilities affecting the transferee. —The purchaser of an undivided share of a Hindu coparcener gets
only an equity to enforce partiton and takes the share when partitioned subject to all liabilities on it in the hands of
his vendor. 95
At the date of the transfer. —The transferee of a co-sharer cannot be liable for the negligence or
misdeeds of his transferor or legal representative subsequent to alienation nor can he be liable for acts of waste
done by the legal representative of the transferor or his omission to do necessary repairs after the date of the
institution of the suit for partition. 96
Section 44-Para 2. —The true and proper construction of the second paragraph of
Section 44 of the T.P. Act is that the transferee of a share of a dwelling house belonging to an undivided
family, who is not a member of the family, shall not be entitled to joint possession, or other common or part
enjoyment of the undivided house. This is the position whether such a transferee comes as a plaintiff and asks for
joint possession, or, whether he is a defendant and claims to remain in joint possession with the plaintiffs, who are
the member of the undivided family. In either case, he has no right either to ask for joint possession, or to remain in
joint possession, because the language of the second paragraph of Section 44 does create a right in favour of the
other co-owners of the dwelling house, who are affected by the sale. The only remedy, therefore, of the stranger
transferee, who is a defendant to a suit, brought by the members of an undivided family, is a right of partition, and,
he has no right to claim to be in joint possession with the plaintiff.1 The purchaser of a coparcener’s undivided
interest in the joint family property is not entitled to possession of what he had purchased. He can only claim a right
to sue for partition of the property and seek allotment of that which on partition might be found to fall to the share of
the coparcener whose share he had purchased. 2 Where the plaintiff and his brother owned a dwelling house,
which had not been divided by metes and bounds, the heirs of the brother transferred one half share in the dwelling
house to a third person, the transfer would come within the mischief of second paragraph of Section 44, the
plaintiffs were held entitled to the relief of interim injunction restraining the vendor from parting with the possession
and the vendees from entering into possession of the dwelling house. 3
Where the transferee of a share of a dwelling house belonging to an undivided family is not the member of the
family, nothing in this section would be deemed to entitle him to joint possession or other common or part
enjoyment of the house. In the instant case, as the defendant was a stranger to the family of the plaintiff, he was
restrained from making any kind of interference in the peaceful possession of the plaintiff and raising construction
over the land in suit, which was part of the dwelling house. The remedy open to the defendant purchaser was to
seek partition. 4
The object of the second part of the provision is to keep off strangers who may purchase the undivided share of a
co-sharer of an immovable property, so far as dwelling house is concerned. The section is not merely restrictive in
its operation, but while taking away a right of a stranger transferee of a share in a dwelling house to ask for joint
possession, it also creates a right in favour of the other co-sharers to institute a suit for injunction restraining such
transferee from exercising any act of joint possession in respect thereof, e.g. raising constructions in the dwelling
house. 5
Page 8 of 29
S. 44. (A)
In the instant case the portion of the house which came to the plaintiff no. 5 and the defendant no. 1 as a result of
bequest was a dwelling house and as there had been no partition it was the house belonging to the undivided
family of these two brothers. One brother could not alienate any specific portion of the house in dispute without
partition.
Section 44 of the Transfer of Property Act becomes applicable. The defendant no. 2 was also not a
member of the family and therefore, he was not entitled to joint possession or other common or part enjoyment of
the house, in view of para 2 of
Section 44 of the Transfer of Property Act . It is not material for the applicability of second part of Section
44 that the members of the family are ‘joint tenants’ or ‘tenants in common’. Interim mandatory injunction passed by
the trial Court directing the defendant no. 2 to remove his belongings from the house in suit and restraining him
from interfering with the possession of the plaintiff no. 5 was upheld.6
Once it is held that the plaintiff is entitled to protection under the second part of
Section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it
would follow that even if the defendants have been put in possession or have come jointly to possess they can be
kept out by injunction. The effect of that injunction would necessarily mean ejectment.7
Transfer of undivided shares. —Undivided shares can validly be transferred and transferee acquires
right of share or interest of the transferor. A transfer of undivided share cannot be declared invalid/void or want of
partition. 8
A third party stranger cannot be granted possession of undivided shares in joint family property by virtue of Section
44 ; he would have to work his remedies and seek partition. 9
Coparcenary interest—Transfer of. —Even a coparcenary interest can be transfered subject to the
condition that the purchaser without the consent of his other coparcencers cannot get possession. He acquires a
right to sue for partition. 10
Share of a dwelling-house. —Both under this Act as well as the

Partition Act ,11 the share of the dwelling-house in question must belong to an undivided family. On a
partition "dwelling-house" would generally mean not only the house itself but also the land and appurtenances
which were ordinarily and reasonably required for its enjoyment. 12
Section 4 of the Partition Act, 1893 has been held to apply to the rest of a house, portion of which was
separated owing to one member selling his interest in it.13 Merely because a major portion of the house has been
let out, house would not cease to be dwelling house of an undivided family. 14
"Dwelling house". —A house which has been completely let out to tenants would not fall within the
terms "dwelling house" belonging to an ’undivided family’ found in
Section 44 of the T.P. Act .15 Garden or tank independently of any house or structure is not a dwelling
house. 16 The female heirs have right of residence in a joint family house, though they cannot seek partition in view
of the bar imposed by Section 23, of the
Hindu Succession Act (44 of 1954)17
Mode of division. —Where the mode of division is found inexpedient,

Page 9 of 29
S. 44. (A)
Section 2 of the Partition Act, 1893 , gives the Court power to order sale.18
Undivided family. —This phrase applies to a family divided in status and is not restricted to what is
ordinarily known as a joint Hindu family. It is an expression of general application, and means a family, whether
Hindu, Mahomedan, Christian, etc. , possessed of a dwelling-house which has not been divided or partitioned
among members of the family. 19 The words "undivided family" must be taken to mean undivided qua the dwelling-
house in question and to be a family which owns the house but has not divided it. There is nothing in the Act to
support the suggestion that the words were intended to be used in the narrow and restricted sense as comprising a
body of persons who can trace their descent from a common stock. It is the ownership and not its actual occupation
which brings the operation of the section into play. 20 The requirements of the section are satisfied if it be shewn
that the house is an undivided one and the members of the family occasionally reside therein. It is unnecessary to
prove that the members of the family constantly resided nor is it necessary that they should be joint in food. 21
The provisions of
Section 44 of the Partition Act, 1893 are complementary to each other and the terms "undivided family"
and "dwelling house" have the same meaning in both the sections. "Family" is a term of wide import and is not
restricted to a body of persons who can trace their descent from a common ancestor. It is often understood to
include a group of persons who live in one house under one head or management.22 Where undivided members
have raised houses for their own convenience, normally all these separate houses would really be treated as the
residential house and for convenience, different members of the undivided family would be treated to be in
occupation and enjoyment. Unless in a particular case it is shown out of one’s own earning a house has been
constructed on a joint homestead plot, the house itself would belong to the joint family and will have the incidences
of the joint family asset. Merely because, the undivided members have raised independent structures on the
admitted undivided homestead, it cannot be held that these structures do not constitute dwelling house of the
undivided family. 23
The object of the provision in Section 44 is to prevent the intrusion of the strangers into the family residence which
is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share
therein in favour of a stranger. Where the property is still an undivided dwelling house, possession and enjoyment
whereof are confined to the members of the family. 24
When a co-sharer transfers a joint family property, the purchaser of such property can enforce a right to partition.
The sale by the defendant (Karta ) in respect of his 1/3rd share in the property was held valid, and the appellant
purchaser was found entitled to sue for partition. Instead of driving the parties to another suit for partition in
conformity with the rights inter se, it would be just and appropriate to pass a preliminary decree for partition and
separate possession of 1/3rd interest in the Plaintiff. 25
The right of pre-emption can be invoked by the coparcener or co-sharer of a joint Hindu family in a suit instituted for
partition by a coparcener or member of the joint family. Unless the suit for partition is brought by the purchaser, the
right of pre-emption is not invokable by members of the joint family or coparcener under
Section 4 of the Partition Act, 1893 . The right of coparcener to invoke the provision under
Section 44 of the T.P. Act is not obliterated. At appropriate stage of the proceeding, be it final decree
proceeding or execution proceeding, if so advised, plaintiffs may invoke that right appropriately.26 Where a dwelling
house belonging to a undivided family is transferred to a outsider not being a member of the family, Section 44 does
not entitle him to joint possession or his common or part enjoyment of the house. A transferee who is not a member
of the family cannot claim joint possession or other common or part enjoyment of the house. 27 A purchaser of a
share of a building belonging to an undivided family is not entitled to joint possession/enjoyment of the house
unless he is a member of the family. 28
Page 10 of 29
S. 44. (A)
Stranger purchaser in possession of a portion of family dwelling house. — The possession of a

portion of an undivided family dwelling house by a stranger –purchaser would not make any difference even for the
purpose of keeping him out from the undivided family dwelling house. On the same analogy, it can be said that
Section 4 of the Partition Act, 1893 , which is complementary to
Section 44 of the Transfer of Property Act cannot have any separate treatment for the purpose of
application only because the stranger-purchaser is in possession of a portion under purchase.29
A transferee of a share in a dwelling house who is not a member of that family would not get any right of joint
possession or of common enjoyment of the house. 30
When a share in the joint property is alienated, the purchaser gets the joint possession along with the other co-
owners. 31
In a transfer by a co-sharer of his share in a dwelling house, the inability to take possession by a stranger purchaser
is only temporary till the interest purchased is separated and bound to be separated by partition. 32
Where undefined share in the joint property is sold by one of the co-owners, the purchaser gets joint possession
and he may file a suit for partition and may claim that on the principle of equality that the property should be so
partitioned that the portion sold by the co-owner to him should be allotted to his share. 33
Court sale. — Section 44 does not apply to a sale by the Court. But the principle of Section 44 can be
applied to such involuntary sales as a rule of equity, justice and good conscience. 34 The remedy of court auction
purchaser of an undivided share in a property is to sue for general partition and request the allotment of the
property purchased or as much of it as possible to the share of the judgment debtor without prejudice to the right of
other members of the family. He cannot seek the remedy of substituted security and also claim substitution of
property of equivalent value out of the share of the judgment debtor. 35
In order to effectuate usufructuary mortgage, it is necessary that the mortgagee should obtain possession of the
mortgaged property in order to realise the amount of loan advanced and the interest accrued thereon. Where the
possession of the mortgaged property of the coparcener is not given to a mortgagee, he is entitled to separate
possession by partition of the mortgaged property so that he may enjoy the security for the mortgage to the best
advantage. 36
Hindu Law. —The rule enunciated in Section 44 does not override the Hindu Law. 37 In a suit for
partition after the preliminary decree, the coparcenary comes to end and a transfer by a co-owner of his share to a
stranger is valid. 38
Transferee from a Hindu coparcener in the Bombay Presidency. —It cannot be said that any
coparcener has a particular share in any item of the family property. He has only an undivided share in the whole of
it. In Bombay it is settled law that a coparcener can sell his own interest in joint family property provided there is
valuable consideration for it. 39 Under the Mitakshara as interpreted in the Bombay Presidency a purchaser cannot
get joint possession of the share but is only entitled to a declaration of his rights that he has acquired the interest of
Page 11 of 29
S. 44. (A)
the vendor and a declaration that he be left to recover that interest by separate suit for partition in which all
necessary parties and properties should be joined. 40 The relief can only be given by way of a suit for a general
partition. 41 Joint possession cannot be given to the vendee. 42 The sale is valid even though the deed takes the
form not of the sale of his interest but of a sale of the whole. 43 And where a stranger purchases a particular portion
of the joint family property from one of the coparceners in a joint family he is entitled to file a suit against the other
members of the family for partition and on partition, if possible, the property which he has purchased as belonging
to a certain coparcener should be given to him as his share. 44 The Madras High Court has also held that a
purchaser of the interest of a coparcener must sue for general partition. 45 A contrary view has been taken by the
Allahabad High Court. 46
The following propositions were laid down so far as the Presidency of Bombay is concerned with regard to the
rights and remedies in the case of a purchase by a stranger of an undivided share in a joint Hindu family in Bhau v.
Budha . 47
(1) A stranger-purchaser of the undivided share of a coparcener in a joint Hindu family, if out of possession
should not be given joint possession with the other coparceners, but should be left to his remedy of a suit
for partition. 48
(2) On the other hand, a coparcener, who has been excluded, may obtain joint possession with such a
purchaser who has obtained possession of the jointfamily property. 49
(3) The purchaser in possession need not be ejected in a suit for recovery of possession brought by an
excluded coparcener but can be declared to be entitled to hold (pending a partition) as a tenant in common
with the other coparceners. 50
Alienee of share in a Hindu coparcenery in the Madras Presidency. —The following rules are
deducible from the authorities as to the position of such an alienee according to Mitakshara in the Presidency of
Madras.
(1) When a coparcener alienates his share in certain specific family property the alienee does not acquire any
interest in that property but only an equity to enforce his rights in a suit for general partition of the entire
family property. The transferor remains a member of the coparcenery until partition is effected. 51
(2) The alienee cannot sue for partition and allotment to him of his share of the property alienated. 52
(3) Such an alienee has no right to possession and no status as a tenant in common although he might have
obtained possession of the property in execution of the decree against one of the coparceners. 53
(4) When a coparcener became an outcaste and was driven out of the family, and did not enjoy family property
for over twelve years, it amounted to exclusion and the right to recover his share is barred. 54
(5) When such purchaser fails to apply for amendment of his plaint after an issue is raised questioning the
frame of the suit, his suit is liable to be dismissed. 55
(6) The alienee need not be directed to institute a separate suit to work out his rights by a partition, but was
entitled in the coparcener’s suit as a defendant to get a decree for partition and claim to be allotted the item
purchased by him in respect of his vendor’s share, if that was inconsistent with the rights of other
coparceners. 56
(7) The alienee is not entitled to any mesne profits in respect of his share for the period between the date of
his purchase and the date of his suit for partition. 57
(8) A purchaser of the undivided share of a member of a joint Hindu family does not thereby become a tenant
in common with other members. 58
Page 12 of 29
S. 44. (A)
A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State of Madras is entitled to alienate
his undivided share either in the whole of the property or in a certain specific item of the property or even the whole
of a specific item. In all such cases the only right which the alienee acquires is to stand in the shoes of his vendor
and to work out his rights by a suit for partition and in such a suit, if without prejudice to the rights of the other
members of the family, it is possible to have the share alienated allotted to the alienor, it may be allotted to the
alienee in the right of the alienor. The alienee has to bear the proportionate share of the common burden of the
family proportionate to the value of the share alienated to him. 59
As regards the other provinces of India, most of the cases relate to Court sales of a coparcener’s share where
according to Mitakshara Law the right of a coparcener to alienate the undivided share is different from Bombay and
Madras. In those provinces one coparcener has no authority without the consent of his co-sharers to mortgage or
sell his undivided share in a portion of the joint family estate in order to raise money on his own account and not for
the benefit of the family. 60
Persons entitled to claim partition. —As a general rule, every joint owner is entitled to partition, viz. ,
to be placed in a position to enjoy his own rights separately or without any interruption or interference by his co-
sharer. The general rule must, however, be taken subject to exceptions and qualifications dependent upon the
nature of the thing owned jointly, the nature of the interest of the party claiming partition, the nature of the terms and
conditions on which the different joint owners held their respective interests.
It has been held that "partition" is applicable only to those suits in which the plaintiff seeks to convert his joint
ownership and joint possession of the whole property into separate ownership and separate possession of a portion
of the property. Therefore, a partition suit lies only when the plaintiff and the defendants have unity of interest or title
in the property sought to be partitioned and unity of possession. 61 Equally partition can be had between parties
one of whom owns an interest subordinate to the other. 62 The Privy Council has held that the right of partition
exists when two parties are in joint possession of land under permanent titles although their titles may not be
identical. 63 In a suit for partition the plaintiff should establish that he and the defendant are not only joint owners
but also entitled to joint possession as the object of the suit is to transfer the joint possession into possession in
severalty. 64 The Court must in each case determine whether the balance of convenience is in favour of allowing
partition. 65
A lessee for a term of years is entitled to partition though that partition can only last for the period of this lease. 66
And a lessee of shares of some lessors in an entire village and of shares of other lessors in a portion is entitled to
maintain a suit for partition as to portion jointly held by him and some lessors. 67 So also a suit for partition by a
lessee against co-sharers of lessor is maintainable. 68 But a purchaser of an undivided two-thirds share in huts
used as residence by a joint Hindu family could not be given a decree for joint possession. The proper course to
follow is either to direct delivery of possession by partition, in execution proceedings or to leave the purchaser to his
remedy by a separate suit for partition. 69 And an alienee from a member of a joint Hindu family is not entitled to
possession of the alienor’s share as a tenant in common. His only right is to obtain by a suit for partition the share
to which his alienor is entitled. 70 There is no fixed rule of law that a property held in temporary right cannot be
partitioned, the only rule being the rule of convenience. Tenants would be entitled to partition under the section
unless it could be proved there was some disability against partition. 71 In the absence of proof of inconvenience to
other co-sharers a patnidar whose right extends over only a fractional share of one of many mouzahs in the
zemindari is entitled to maintain a suit for partition. 72
The estate of a deceased Burman Buddhist vests in his heirs on his death, but there is no analogy between their
position and that of the coparceners of a joint Hindu family under the Hindu Law. In the former case the estate does
Page 13 of 29
S. 44. (A)
not vest collectively or jointly but each heir gets a definite fraction in every portion of the estate of the deceased
which vests in him separately and individually which he is entitled to claim. He cannot be decreed to be with the co-
heir a joint owner or joint tenant of the property nor is he entitled to joint possession of the property with them. A
Burman Buddhist heir is not entitled to maintain a partition suit in the strict sense of the word and his suit for division
of the inheritance must be an administration suit. 73
Partial partition. —A suit for partition of a portion of the joint estate is maintainable when it is the only
property held jointly by the plaintiff and the defendant. 74
Tenant in common. —The result of the authorities is that according to the Mitakshara a purchaser of a
share in a Hindu coparcenery is a tenant in common with the coparceners other than his alienor in Bombay, but not
according to the recent rulings of the Madras High Court. In the other Provinces the question does not arise as
alienation is prohibited except with the consent of the other coparceners.
Co-tenant. —Where the Government granted licence and also subsequently executed lease of the
premises in favour of A , his mother and brother though jointly living with him in the same premises do not become
co-tenant, their status is merely that of a licenseee. 75
Where a tenant of land has built construction on the land, merely by raising constructions he does not become co-
owner of the land and he is not entitled to claim right of pre-emption qua the land on which he has raised
construction. 76
Co-owners. —A co-owner can exercise the right of pre-emption. 77
Official Receiver. —Although an Official Receiver, on the insolvency of a Hindu father, can sell the
family property including the son’s share therein, still the purchaser from the Official Receiver is not entitled to
apply, under
Section 4 of the Provincial Insolvency Act, 1920 , for delivery of possession of the property in so far as
the son’s share is concerned; his remedy would be by instituting a regular suit for possession in the ordinary Civil
Courts; but the Official Receiver or the purchaser is entitled, in so far as the insolvent’s share is concerned, to be
given joint possession of the property, on an application filed under Section 4 of the Act.78
Official Assignee. —Where the managing member of a joint Hindu family, consisting of himself and his
sons, is adjudicated an insolvent the interest of the sons does not vest in the Official Assignee by reason of the
adjudication although it would be competent to the latter to deal with their shares, if the debts of the insolvent were
of such a nature as to be binding on their interest.
The Official Assignee as representing the managing member, is entitled to joint possession with the sons of the
family property.
There are certain rights of a managing member which the Official Assignee cannot exercise by reason of the
personal nature of the rights, such as the right to live in the family house or to share in the family meals; but the
Page 14 of 29
S. 44. (A)
latter is entitled to all other rights of the insolvent including the right to possession. 79
Co-sharer’s claim for compensation. —Where some co-sharer is in exclusive possession of the joint
property, claim for compensation by the other co-sharer, who is not in possession, cannot be entertained. The
exclusive possession of one co-sharer would be sufficient to enable him to get compensation from the other co-
sharer and there need not be any ouster or declaration of hostile title. A co-sharer in exclusive possession can
maintain the same and recover possession from the other co-sharer if the latter forcibly appropriates the profits
thereof. 80
Co-sharer’s suit for pre-emption. —When co-sharer files suit for enforcement of his /her right on the
basis of pre-emption then the said person can only claim the substitution of his/her name in the executed sale deed
in place of the original transferee on payment of the value of the property proportionate to the share in law sold and
cannot be asked to pay the value of the property which belongs to plaintiff. 81
Doctrine of substituted security. —The doctrine of substituted securities will be applicable not only
when the undivided share of a coparcener in all the items of the coparcenary or the undivided share of a co-owner
in all the items owned jointly by the co-owners is alienated but even when a specific item of property is alienated by
such coparcener or co-owner and ultimately it is found that the alienating coparcener or coowner is allotted some
other item in partition. 82 The doctrine of substituted security would apply irrespective of the question whether the
right of a coparcener or a co-owner is transferred by private sale or by Court auction purchase. 83
When no allotment has been made in partition to such coparcener or co-owner, the alienee or the auction
purchaser, as the case may be, will be entitled to seek partition and also allotment at such partition to himself of so
much out of the properties as may fall to the share of the coparcener or the co-owner as is required to make up the
value of the property sold to the alienee or the auction purchaser as the case may be. 84
Co-owner not in exclusive possession of property- Transfer by co-owner. —A co-owner who is not
in actual physical or exclusive occupation over a parcel of land cannot transfer a valid title to that portion of the
property. The remedy of the transferee in case the transfer is made, would be to get a share out of the property to
be allotted to that co-sharer in partition or to get a decree for joint possession or claim compensdation from the co-
sharer, as the case may be. 85
The condition in the sale deed clearly stated that the vendor was parting with his share of the land. The fact that the
boundaries were given was held to be an insignificant part of the covenant for sale. The question of possession was
also held irrelevant as the property related to a dwelling house of un-partitioned joint property. Concurrent findings
of the Courts below that the sale deed was invalid, were upheld. 86
Agreement for sale by more than one co-owners-If enforceable against one coowner. — The
contract is one and indivisible it can be enforced only in its entirely. But a part of the contract is also enforceable if it
comes within one or other of the exceptions provided in sub-sections (2) to (4) of
Section 12, Specific Relief Act, 1963 . Whatever may be position under the old
Specific Relief Act of 1877, the position under the 1963 Act is that the plaintiff in a suit for specific
performance can get relief in respect of share of the property on paying the proportionate consideration provided
therein. That is possible at the instance of either party if the part which is left unperformed bears only a small
portion to the whole in value and admits of compensation in money. The Court may in such a case direct specific
performance of so much of the contract as can be performed and award compensation in money for the deficiency.
Page 15 of 29
S. 44. (A)
When the part of the contract unable to be performed forms a considerable part of the whole only the person who is
not in default is entitled to obtain a decree and that too if the part left unperformed admits of compensation in
money and pays or has paid the proportionate consideration for the part which was left unperformed. Similar is the
case where the part left unperformed does not admit of compensation in money but in that case he has to pay the
whole of the consideration without any abatement. The further condition is that the person who seeks specific
performance shall relinquish all his claims to the performance of the remaining part of the contract and all rights to
compensation.87
In a case where several co-sharers had contracted to convey a joint property belonging to them the contract can be
enforced against one of them if the others are unable to convey their shares. 88 An agreement for specific
performance could also be enforced against one of the co-owners who had jointly contracted to convey a property.
If any of them is unable to convey his portion there is no legal bar in getting specific performance of the remaining
portion against the other co-owners. Further, each of the co-owners is entitled to possession and enjoyment of the
whole property along with others.
Section 44 of the Transfer of Property Act says that the transferee acquires as to such share or interest
the transferor’s right to joint possession or other common or part enjoyment of the property. The transferee can also
enforce partition of his rights but subject to the conditions and liabilities affecting at the date of the transfer. In a
case where several co-owners had contracted to convey a joint property belonging to them the contract can be
enforced against one of them if the others are unable to convey their shares.89 Where three co-owners had entered
into contract for transferring property, one of the co-owners refused to execute the sale deed, the two other co-
owners had relinquished their interest in favour of the vendee, held the plaintiff vendee was entitled to get a decree
for specific performance on payment of the balance sale consideration. 90
Purchaser of undivided interest of coparcenary. —The purchaser of an undivided interest of a

coparcenary property can only obtain under the sale an undivided interest of the alienating coparcener and a right
to claim general partition by way of suit. The purchaser only steps into the shoes of the transferor and is invested
with all the rights and is subject to all the disabilities of the transferor. He at best, is entitled to only joint possession
with the non-alienating co-owners and if resisted he may recover joint possession by different co-owners entered
into, before he acquired the interest in the joint property. 91 In the present case, as there was no inter se
arrangement between the coparceners under which one of them was in exclusive possession of a portion of joint
property, the alienating member who placed him into possession, was also not in exclusive possession and
enjoyment of the suit land sold in his favour, The purchasers, therefore, had only a right to remain in joint
possession of the coparcenery property and to work out their rights by bringing a suit for general partition and claim
in that suit allotment of the alienated property to the share of their vendor. 92 In a suit for partition after the
preliminary decree, the coparcenary comes to end and a transfer by a co-owner of his share to a stranger is valid. 93
Joint possession—Interference—Injunction. —Where a co-sharer transfers his undivided share in

the family dwelling house, circumstances reveal common enjoyment of house by all members, stranger purchaser
can be restrained from entering into possession of the property with members of undivided family. The co-sharer of
an undivided family dwelling house is entitled to a protection under
Section 44 of the T.P. Act . Upon a transfer of an undivided share of a family dwelling house by a co-
sharer, the other co-sharer may maintain a suit for injunction restraining the stranger transferee from exercising any
act of joint possession in respect of the share transferred. A co-sharer is entitled to exercise his option over every
portion of his property. The remedy of a stranger purchaser is actually one of partition.94
Where the co-sharer transfers his un-divided share in a dwelling house and transferee by injunction is restrained
from entering into possession, the remedy of the stranger is to file suit for partition or he can file suit for recovery his
money from the cosharer. 95
Co-sharer in exclusive possession of suit land—If he can raise constructions. — A co-sharer who
Page 16 of 29
S. 44. (A)
is an exclusive possession cannot be permitted to raise construction on the land in his possession, as every other
co-sharer is also a joint owner of every inch of the entire joint holding till the same is regularly partitioned by meets
and bounds 96
Suit for separate possession of undivided property—If maintainable. —A purchaser from a co-
sharer of a portion of undivided is not entitled to possession of any particular part of the joint property. His right if
any would be to joint ownership or coownership and not to the exclusive ownership of any particular part of the joint
property. A transferee from such co-sharer would not be in a better position than the co-owner himself and hence
he would also not be entitled to claim exclusive possession in a particular part of the joint property. Section 44
assures the transferee the right to joint possession or common enjoyment of the property but does not confer on the
transferee any right to exclusive possession. The transferee is entitled to seek partition. 1 In the under mentioned
case 2 a Full Bench of the Madras High Court has held that a purchaser from a coparcener is not entitled to joint
possession.
Where a plaintiff stranger has acquired only half share in the suit property, a dwelling house, she as a stronger
would not be entitled to seek joint possession with the defendants in a dwelling house. The remedy open to the
plaintiff in a such a case is to seek partition. 3 Where the plaintiff has not sought the relief of partition, since the
Court has power to grant appropriate relief to the plaintiff depending on the circumstances of the case, the Court
may pass a preliminary decree for partition. 4
Joint transfer for consideration.
42 Uma Shankar v. Mt. Dhaneshwari ,

AIR 1958 Pat 550 (553); Sushil Kumar Gupta v. Anil Kumar Gupta ,
AIR 2007 NOC 2551 (Delhi).
43 Murari Lal v. Raj Kumar , 2006 (2) All WC 1521 (1523) (All); Kammana Sambamurthy v.
Kalipatnapu Atchutamma,
(2011) 11 SCC 153 [
LNIND 2010 SC 978 ] :
AIR 2011 SC103 [
LNIND 2010 SC 978 ]:
(2011) 99 AIC 186 :
(2011) 85 ALR 221 : (2011) 1 Cal HN 248 JI 2010 (12) SC 92.
44 Sunil Gupta v. Nargis Khanna,

2011 (185) DLT 760 :
2012 (1) AD (Delhi) 277 :
2011 (126) DRJ 97 [
LNIND 2011 DEL 1009 ] (DB)
45 Ghantesher Ghosh v. Madan Mohan Ghosh , AIR

1997 SC 471 ) (478) :
(1996) 11 SCC 446 [
LNIND 1996 SC 1485 ].
Page 17 of 29
S. 44. (A)
46 Shyam Sunder Mallik v. Baidhara Mallik,

(2003) 95 CLT 20 (25) (Ori).
47 Babulal v. Habibnoor Khan , AIR

2000 SC 2684 :
(2000) 5 SCC 662 [
LNIND 2000 SC 739 ] ; Gautam Paul v. Debi Rani Paul , AIR
2001 SC 61 :
(2000) 8 SCC 330 [
LNIND 2000 SC 1349 ] : AIR
2001 SC 61 ; Bulu Sarkhel v. Kali Prasad Basu,
AIR 2012 Cal 67 [
LNIND 2011 CAL 1081 ] (70).
48 Shyam Sunder Mallik v. Baidhara Mallik,

(2003) 95 CLT 20 (25) (Ori).
49 Bulu Sarkhel v. Kali Prasad Basu ,

AIR 2012 Cal 67 [
LNIND 2011 CAL 1081 ] (70, 71).
50 Nemai Basak v. Kalyani Rakshit ,

AIR 2005 Cal 163 [
LNIND 2004 CAL 328 ] (177).
51 Purna Chandra Mallik v. Renuka Jena ,

AIR 2007 Ori 65 [
LNIND 2007 ORI 2 ] (67) :
2007 AIHC 344 NOC:
(2007) 10 LR 312 .
52 Harekrushna Mahakud v. Radhanath Mahakud ,

2009 (77) AIC 886 (889) (Ori)
53 Lachhman Singh v. Mohider Singh ,

(2002) 3 Punj LR 131 (133) (P&H).
54 Gaffar Wangoo v. Ghulam Qadir , AIR 1967 J&K 17 (18) :

1967 Kash LJ 40 .
55 Tummu Rajapu Reddy v. P. Koteswaramma ,

2005 (4) Andh LT 446 [
LNIND 2005 AP 456 ] (448) (AP).
56 Arati Rani Paul v. Balai Chandra Paul ,

AIR 1982 NOC 42 (Cal).
57 Secretary, Communist Party of India v. Judhistira Patnaik , (2004) 97 Cut LT 169 (174)
(Ori).
Page 18 of 29
S. 44. (A)
58 Shib Nath v. Jaharlal ,

AIR 1982 Cal 143 [
LNIND 1981 CAL 177 ] (146).

AIR 1982 Cal 143 [
LNIND 1981 CAL 177 ] (146).
60 Udyanath Sahu v. Ratnakar Bej ,

AIR 1967 Ori 139 [
LNIND 1967 ORI 1 ] (141) : 33 Cut LT 1163.

AIR 1982 Cal 143 [
LNIND 1981 CAL 177 ] (146).
62 Neelavathi v. N. Natrajan , AIR

1980 SC 691 (695) :
(1980) 2 SCC 247 .
63 Neelavathi v. N. Natrajan , AIR

1980 SC 691 (695) :
(1980) 2 SCC 247 .
64 I. Gauri v. C.H. Ibrahim ,

AIR 1980 Ker 94 [
LNIND 1979 KER 128 ] (97).

AIR 1980 Ker 94 [
LNIND 1979 KER 128 ] (97).

AIR 1980 Ker 94 [
LNIND 1979 KER 128 ] (97).
67 Sevak Nayak v. Ramkurshna ,

AIR 1978 Ori 82 (84) (DB) : 44 Cut LT 576 :
ILR (1997) Cut 729 .
68 Ram Bilas v. Shiv Rani ,

AIR 1977 All. 437 (438).
69 Ram Bilas v. Shiv Rani ,

AIR 1977 All 437 (438).
70 Arun Kumar v. Jnanendra ,

AIR 1975 Cal 232 [
LNIND 1975 CAL 14 ] (233, 234) (DB).
Page 19 of 29
S. 44. (A)
71 K. Parvathi Amma v. V. Mani ,Amma

AIR 1975 Ker 139 [
LNIND 1974 KER 166 ] (140) :
1975 Ker LT 197 ; M.N , Aryamurthi v. M.D. Subbaraya Setty , AIR
1972 SC 1279 :
(1972) 4 SCC 1 ; Balakrishnsn v. Makkam ,
AIR 1974 Ker 18 [
LNIND 1972 KER 243 ].
72 Bhagwati Lal v. Bhorelal , AIR

1974 Raj 225 (230).
73 Bhim Singh v. Ratnakar Singh ,

AIR 1971 Ori 198 [
LNIND 1970 ORI 70 ] (200).
74 Thacker Pragji Anandji v. Mansukh Ambalal , AIR 1997

SC 1787 (1788) :
(1997) 9 SCC 111 [
LNIND 1996 SC 2001 ].
75 Renupada Jalani v. Nirapada Dayasi ,

AIR 2005 NOC 160 : 2004 AIHC 4840 (Cal).
76 Renupada Jalani v. Nirapada Dayasi , 2004

AIHC 4840 (4843) :
AIR 2005 NOC 160 (Cal).
77 Salim v. First Addl. Civil Judge, Saharanpur ,

AIR 1996 All 342 [
LNIND 1996 ALL 70 ] (347) : 1996 All LJ 1300.
78 Golaka Chandra Nayak v. Gobinda Nayak ,

AIR 1996 Ori 189 [
LNIND 1996 ORI 161 ] (192):
(1996) 82 CLT 205 .
79 Golaka Chandra Nayak v. Gobinda Nayak ,

AIR 1996 Ori 189 [
LNIND 1996 ORI 161 ] (192):
(1996) 82 CLT 205 .
80 Sushil Kumar Gupta v. Anil Kumar Gupta ,

AIR 2007 NOC 2551 : 2008 AIHC (NOC) 254 (Del).
81 Rukmani v. H.N. Thirumalal Chettiar ,

AIR 1985 Mad 283 [
LNIND 1984 MAD 335 ] (284) : (1985) Mad LJ 142.
82 Sujit Kumar Biswas v. Iswarchandra Nandi ,

AIR 1948 Cal 61 ) : 51 CWN 411.
Page 20 of 29
S. 44. (A)
83 Brij Krishan Gupta v. Chander Krishan Gupta,

AIR 1981 NOC 43 (Del).
84 Dorab Cawasji Warden v. Coomi Sorab Warden , AIR

1990 SC 867 (876) :
(1990) 2 SCC 117 [
LNIND 1990 SC 77 ].
85 Akkha v. Jagabandhu ,
AIR 1971 Ori 127 [
LNIND 1970 ORI 49 ] (130) (DB); Sushil Kumar Gupta v. Anil Kumar Gupta , 2008
AIHC (NOC) 254 (Del) :
AIR 2007 (NOC) 2551 ; Ram v. Ram Kishan,
AIR 2010 All 125 [
LNIND 2010 ALL 356 ]: 2010 () All LJ 20 :
2010 (89) All LR 346 ).
86 Ramaswami v. Subramania ,
AIR 1967 Mad 156 [
LNIND 1965 MAD 268 ] (158) : (1966) 2 Mad LJ 132
87 Kanduri Maharana v. Banchhu Maharana ,

AIR 1961 Ori 203 .
88 See
S. 58 of the Transfer of Property Act , IV of 1882.
89 Durga Charan v. Khundkar, (1918) 27 CLJ 441 ; Ramasami v. Alagirisami , (1904) 27

Mad 361 ; Muhammad Jafar v. Mazharul-Hasan ,
(1906) 3 ALJ 474 ; see
S. 105 of the Transfer of Property Act , IV of 1882;Joginder Singh Khorana v. Baldev Krishna Thaper ,
AIR 1965 J&K 2.
90 Sivaramayya v. Kapa Venkata , (1930) 53 Mad 417 ; Nilkamal v. Kamakshya ,

AIR 1928 Cal 539 .
91 Brijmohan v. Mt. Mahbhuban ,

AIR 1930 All 509 . (460B Entry missing)
92 Venkatarama v. Meera Labai , (1890) 13 Mad 275 ; Pandurang v. Bhaskar , (1875) 11

Bom H.C.R. 72.
93 Karuppam v. Ponnarasu Ambalam ,

AIR 1965 Mad 389 [
LNIND 1964 MAD 164 ]: 78 Mad LW 86.
94 Joginder Singh Khorana v . Baldev Krishna Thaper , AIR 1965 J&K 2.

Page 21 of 29
S. 44. (A)
95 Venkureddi v. Venku Reddi , (1927) 50 Mad 535 ; Narayan v. Nathaji , (1904) 28 Bom
201 ; Udaram v. Ramu , (1875) 11 Bom HC 76; Ram v. Ram Kishan,
AIR 2010 All 125 [
LNIND 2010 ALL 356 ] (130) : 2010 (4) All LJ 20 :
2010 (80) All LR 80 ; Zafaruddin v. Sushil Singh,
2013 (96) All LR 861 (868) (All).
96 Chandra v. Abidalli ,
AIR 1925 Nag 68 .
1 Uma Shankar v. Mt. Dhaneshwari ,

AIR 1958 Pat 550 (553); Sona Devi v. Balindra Rai ,
AIR 2006 Pat 110 (112):
(2005) 4 PLJR 689 .
2 Ram v. Ram Kishan,

AIR 2010 All 125 [
LNIND 2010 ALL 356 ] (130) : 2010 (4) All LJ 20 :
2010 (80) All LR 346 [
LNIND 2010 ALL 356 ]
3 Dorab Cawasji Warden v. Coomi Sorab Warden ,AIR

1990 SC 867 (876) :
(1990) 2 SCC 117 [
LNIND 1990 SC 77 ] ; Devendra Singh Thakur v. Smt. Shantibai , 2004 (4) MPLJ
327 (329): (2004) 1 MPHT 375 (MP).
4 Zafaruddin v. Sushil Singh,

2013 (96) All LR 861 (868) (All)
5 Ashish @ Piklu Das v. Debabrata Acharya , 2007 (1) Cal HN 198 (200) :
2007 (1) Cal LJ 683 [
LNIND 2006 CAL 374 ] : 2007 (2) Cal LTG 592 (Cal); Lal Behari Samanta v. Gour
Charan ,
AIR 1952 Cal 253 .
6 Devendra Singh Thakur v. Smt. Shantibai , 2004 (4) MPLJ 327 (328, 329): (2004) 1
MPHT 375 (MP) (Following Dorab Cawasji Warden v. Coomi Sorab Warden, AIR
1990 SC 867 : (199) 2 SCC 117.
7 Bhim Singh v. Ratnakar ,

AIR 1971 Ori 198 [
LNIND 1970 ORI 70 ] (202) : (1970) 1 Cut WR 183; Devendra Singh Thakur v. Smt.
Shantibai , 2004 (4) MPLJ 327 (329): (2004) 1 MPHT 375 (MP).
8 Nirashi Bai v. Ramlal , 2006

AIHC 2623 (2627) : 2006 (43) All India Cases 206 : AIR 2006 Chh 73 (Chh).
9 Raj Khurana v. Amrawati Madan ,

2009 (162) DLT 515 (Del)
Page 22 of 29
S. 44. (A)
10 Hardeo Rai v. Sakuntala Devi,

(2008) 7 SCC 46 [
LNIND 2008 SC 995 ] (52): AIR
2008 SC 2489 ; Harekrushna Mahakud v. Radhanath Mahakud,
2009 (77) AIC 886 (889) (Ori).
11 IV of 1893, Sections 2 and 4.
12 Pran Krishna v. Surath Chandra ,

(1918) 45 Cal 873 ; Nilkamal v. Kamakshya ,
AIR 1928 Cal 539 .
13 Masitullah v. Umrao ,
AIR 1929 All 414 .
14 Satyendu Kundu v. Amar Nath ,

AIR 1964 Cal 52 [
LNIND 1963 CAL 126 ] (56) (DB).
15 Janakiammal v. P.A.K. Natarajan ,

AIR 1989 Mad 88 [
LNIND 1987 MAD 237 ] (91).
16 Basanta Kumar Sen v. Gour Hari De ,

AIR 1955 NUC 25 (Cal).
17 Mahendra Mahanta v. Taruni Devi ,

AIR 2003 Ori 180 :
(2003) 96 CLT 182 ; Srilekha Ghosh v. Partha Sarthi Ghosh , AIR
2002 SC 2500 :
(2002) 6 SCC 359 [
LNIND 2002 SC 422 ] ; Narasimha Murthy v. Susheelabai , AIR
1996 SC 1826 :
(1996) 3 SCC 644 .
18 Bai Hirakore v. Trikamdas , (1908) 32 Bom 103.
19 Sivaramayya v. Kapa Venkata , (1930) 53 Mad 417 ; Khirode Chunder v. Saroda Prasad,
(1910) 12 CLJ 525 ; Sultan Begam v. Debi Prasad ,
(1908) 30 All 324 ; Masitullah v. Umrao ,
AIR 1929 All 414 ; Kavitha Goud v. Nookala Sudarshan Reddy ,
AIR 2004 AP 326 [
LNIND 2004 AP 571 ] (343) (DB) :
(2004) 5 Andh LT 293 ; Tummu Rajapu Reddy v. P. Koteswaramma ,
2005 (4) Andh LT 446 [
LNIND 2005 AP 456 ] (448) (AP).
20 Nilkamal v. Kamakshya ,
AIR 1928 Cal 539 ; Sultan Begam v. Debi Prasad ,
(1908) 30 All 324 ; Vaman v. Vasudev , (1899) 23 Bom 73 ; Khirode Chandra v.
Saroda Prosad , 12 CLJ 525.
Page 23 of 29
S. 44. (A)
21 Pakija Bibi v. Adhar Chandra ,

AIR 1929 Cal 231 ; Vaman v. Vasudev , (1899) 23 Bom 73.

AIR 1971 Ori 198 [
LNIND 1970 ORI 70 ] (200) : (1970) 1 Cut WR 183.

AIR 1971 Ori 198 [
LNIND 1970 ORI 70 ] (201) : (1970) 1 Cut WR 183.

AIR 1971 Ori 198 [
LNIND 1970 ORI 70 ] (201) : (1970) 1 Cut WR 183.
25 Harekrushna Mahakud v. Radhanath Mahakud ,

2009 (77) AIC 886 (890) (Ori).
26 Sanatan Sahu v. Naran Behera,

(2003) 96 CLT 54 (Ori).
27 Mahendra Mahanta v. Tarini Dei , 96

(2003) CLT 182 (193) (Kant); Kavitha Goud v. Nookla Sudarshan Reddy ,
2004 (5) Andh LT 293 (315) (DB) (AP); K.R. Krishna Murthy v. M/s. Hyderabad
Allwyn Ltd. ,
2006 (3) Andh LT 50 (63) (AP).
28 K.R. Krishna Murthy v. M/s. Hyderabad Allwyn Ltd .,

2006 (3) Andh LT 50 (63) (AP).
29 Anukul Chandra Sandhukhan v. Ajit Kumar Sadhukhan ,

AIR 2004 Cal 170 [
LNIND 2003 CAL 325 ] (173) : (2004) 2 Cal HN 160.
30 Sebati Swain v . Baikuntha Jena v,

2009 (79) AIC 403 (Ori).
31 Vinay Kant Pandey v. Bhagwandas Kurmi ,

2005 (3) Jab LJ 214 (223) (MP).
32 Sunil Gupta v. Nargis Khanna,

2011 (185) DLT 760 : 2012 (1) AD (Del) 277 :
2011 (126) DRJ 97 [
LNIND 2011 DEL 1009 ] (DB).
33 Vinay Kant Pandey v. Bhagwandas Kurmi ,

2005 (3) Jab LJ 214 (223) (MP).
Page 24 of 29
S. 44. (A)
34 Laxminarasamm v. Rajanarayanakermma ,
AIR 1962 Ori 147 [
LNIND 1961 ORI 60 ] (149); Jagatbandhu Biswas v. Iswar Chandra ,
AIR 1948 Cal 61 ) : 51 CWN 411.
35 Fatimunissa Begum Sahiba v. Sheik Abubaker Sahir

,
AIR 1963 AP 119 [
LNIND 1961 AP 170 ] (DB) : (1962) 2 Andh WR 46 (
AIR 1956 AP 188 , followed ).
36 Balwant Rai v. Gurudas , AIR 1974 P&H 160 (162).
37 Kota Balabadra v. Khetra Doss,

(1916) MLJ 275 .
38 Parmananda Swain v. Rabindranath Swain , 2003

AIHC 3903 (3905) :
AIR 2004 NOC 109 (Ori).
39 Pandu Vittoji v. Goma Ramji , (1919) 43 Bom 472 ; Ishrappa v. Krishna , (1922) 46 Bom
925 ; Suraj Bunsi Koer v. Sheo Pershad Singh ,
(1879) 5 Cal 6 IA 88. Balgobind Das v. Narain ,
(1893) 15 All 339 : 20 IA 116 (148).
40 Pandu Vittoji v. Goma Ramji , (1919) 43 Bom 472.
41 Ishrappa v. Krishna , (1922) 46 Bom 925 ; Balaji v. Ganesh , (1881) 5 Bom 499 ;
Krishnaji v. Sitaram , (1881) 5 Bom 496 ; Pandurang v. Bhaskar , (1874) 11 Bom HC 72.
42 Deendayal v. Jugdeep Narain , 4 IA 247

(1877) 3 Cal 198 ; Hardi Narain v. Ruder Perkash , 11 IA 26 :
(1883) 10 Cal 626 .
43 Pandu Vittoji v. Goma Ramji , (1919) 43 Bom 472 ; Vadivelam v. Natesam , (1912) 37
Mad 435 ; Marappa Gaundan v. Ranga sami Gaundan , (1899) 23 Mad 89.
44 Dhulabhai v. Lala Dhula , (1922) 46 Bom 28 ; Pandurang v. Bhaskar , (1874) 11 Bom

H.C. 72; Udaram v. Ranu , (1875) 11 Bom H.C. 76; Kandasamy v. Velayutha , (1927) 50 Mad 320.
45 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684 ; Iburamsa v.

Theruvenkatasami , (1911) 34 Mad 269.
46 Ram Mohan v. Mul Chand ,

(1906) 28 All 39 .
47 (1926) 50 Bom 204.

Page 25 of 29
S. 44. (A)
48 Balaji Anant v. Ganesh Janardan , (1881) 5 Bom 499 ; Pandu v. Goma , (1918) 43 Bom
472 ; Ishrappa v. Krishna , (1922) 46 Bom 925.
49 Bhiku v. Puttu ,
(1905) 8 Bom LR 99 .
50 Babaji v. Vasudev , (1876) 1 Bom 95 ; Kallapa v. Venkatesh , (1878) 2 Bom 676 ;

Dugappa v. Venkataramnaya , (1880) 5 Bom 493 ; Balaji v. Ganesh , (1881) 5 Bom 499.
51 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684 ; Subba Row v.

Ananthanarayana Aiyar,
(1912) 23 MLJ 64 [
LNIND 1912 MAD 125 ] ; Iburamsa Rowthan v. Theruvenkatasami , (1911) 34 Mad
269 dissented from.
52 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684 ; Venkatarama v. Meera Labai
, (1890) 13 Mad 275 ; Palani Konan v. Masakonan , (1897) 20 Mad 243 ; Ramkishore Kedarnath v. Jainarayan
Ramarachhpal,
(1913) 14 MLT 163 .
53 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684 ; Deendayal Lal v. Jugdeep
Narain Singh ,
(1878) 3 Cal 198 : 4 IA 247; Suraj Bunsi Koer v. Sheo Persad Singh ,
(1880) 5 Cal 148 : 6 IA 88; Hardi Narain Sahu v. Ruder Perkash Misser ,
(1884) 10 Cal 626 : 11 IA 26.
54 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684.
55 Manjaya Mudali v. Shanmuga Mudali , (1915) 38 Mad 684 ; Subba Row v.

Ananthanarayana Aiyar,
(1912) 23 MLJ 64 [
LNIND 1912 MAD 125 ].
56 Ramasami Aiyar v. Venkatarama Ayyar , (1923) 46 Mad 815 ; Ramkishore v. Jainarayan

,
(1913) 40 Cal 966 (P.C.).
57 Maharaja of Bobbili v. Venkataramanjulu Naidu , (1916) 39 Mad 265.
58 Maharaja of Bobbili v. Venkataramanjulu Naidu , (1916) 39 Mad 265.
59 Permanayakam v. Sivaraman ,
AIR 1952 Mad 419 [
LNIND 1951 MAD 94 ] (FB) :
ILR 1952 Mad 835 :
(1952) 1 MLJ 308 [
60 Deendayal Lal v. Jugdeep Narain Singh ,

(1877) 3 Cal 198 : 4 IA 247; Hardi Narain Sahu v. Ruder Perkash Misser,
(1883) 10 Cal 626 : 11 IA 26; Suraj Bunsi Koer v. Sheo Persad Singh ,
Page 26 of 29
S. 44. (A)
(1879) 5 Cal 148 : 6 IA 88; Madho Parshad v. Mehrban Singh ,

(1891) 18 Cal 157 : 17 IA 194; Amar Dayal v. Har Parshad ,
(1920) 5 PLJ 605 ; Jai Narain v. Mahabir Prasad ,
(1927) 2 Luck 226 .
61 Maung Ba Tu v. Ma Thet Su , AIR 1928 Rang 73.
62 Hemadri v. Ramani ,
(1897) 24 Cal 575 .
63 Bhagwat v. Bipin Behari ,

(1910) 37 Cal 918 P.C.
64 Nalli Textiles v. Minor Krishnan ,

2001 AIHC 4152 (4159, 4160) :
AIR 2003 NOC 111 (Mad).
65 T.L. Desai v. Yogabai Paanjape ,

AIR 1962 Bom 191 [
LNIND 1961 BOM 25 ]: 63 Bom LR 975 (
AIR 1931 All 466 (FB) &
AIR 1958 All 24 [
LNIND 1957 ALL 70 ] relied on ).
66 Ramasami v. Alagirisami , (1904) 27 Mad 361.
67 Ramasami v. Alagirisami , (1904) 27 Mad 361.
68 Sri Chandra v. Mahima Chandra, (1916) 23 CLJ 231.
69 Girija Kanta v. Mohin Chandra ,

(1915) 20 CWN 675 .
70 Kota Balabadra v. Khetra Doss,

(1916) 31 MLJ 275 [
LNIND 1916 MAD 160 ].
71 Rajanimohan v. Sambhunath ,
(1930) 57 Cal 715 .
72 Uma Sundari v. Benod Lal ,

(1907) 34 Cal 1026 .
73 Maung Ba Tu v. Ma Thet Su, (1927) 5 Rang 785.
74 Radha Kanta v. Ripro Das, (1905) 1 CLJ 40.

Page 27 of 29
S. 44. (A)
75 Hari Singh v. Madan Lal , AIR 2001 Del (231) (235) :

2001 (90) DLT 268 [
LNIND 2001 DEL 91 ].
76 Bhanwar Lal v. Ishwarilal ,

AIR 1982 NOC 212 :
1982 Raj LW 41 (Raj).
77 Bimla Devi v. Rodhushyam Patwa ,

AIR 2006 Pat 112 (113) :
2006 AIHC 2989 : 2007 (1) Cur Civil Cases 387.
78 Venkatram v. Chokkier , (1928) 51 Mad 567.
79 The Official Assignee of Madras v. Ramachandra , (1923) 46 Mad 54.
80 Balram Pramanik v. Arbinda Pramanik ,

AIR 1981 Cal 266 [
LNIND 1981 CAL 107 ] (267); Renupada v. Oramba , (1958) 62 Cal WN 816 (818).
81 Inder Chand v. Smt. Jethi , AIR

2006 Raj 251 (262) :
2006 (3) Raj LW 2248 :
2006 AIHC 3667 .
82 Padmanabha Piallai v. P. Abraham ,

AIR 1971 Ker 154 (158) :
1971 Ker LJ 162 .
83 Padmanabha Piallai v. P . Abraham ,

AIR 1971 Ker 154 (158) :
1971 Ker LJ 162 .
84 Padmanabha Piallai v. P. Abraham ,

AIR 1971 Ker 154 (158) :
1971 Ker LJ 162 .
85 Baldev Singh v. Darsnani Devi ,

AIR 1993 H.P. 141 [
LNIND 1993 HP 20 ] (143): (1993) 2 Shim LC 311.
86 Anjan Barman Choudhury v. Ranjan Barman Choudhury ,

AIR 2013 Gau 42 [
LNIND 2012 GAU 94 ] (48)
87 K.S. Krishan v. Krishnan ,

AIR 1993 Ker 134 [
LNIND 1992 KER 329 ] (138) :
1993 (1) Ker LT 384 [
LNIND 1992 KER 329 ]; Krishnan v. K.S. Krishnan ,
AIR 2004 Ker 155 [
Page 28 of 29
S. 44. (A)
LNIND 2003 KER 369 ] (158) :

(2003) 3 Ker LT 166 [
LNIND 2003 KER 369 ] (DB).
88 K.S. Krishan v. Krishnan ,

AIR 1993 Ker 134 [
LNIND 1992 KER 329 ] (139) :
(1993) 1 Ker LJ 125 ; Krishnan v. K.S. Krishnan ,
AIR 2004 Ker 155 [
LNIND 2003 KER 369 ] (158) :
(2003) 3 Ker LT 166 [
LNIND 2003 KER 369 ] (DB).
89 Krishnan v. K.S. Krishnan ,

AIR 2004 Ker 155 [
LNIND 2003 KER 369 ] (158):
(2003) 3 KLT 166 [
LNIND 2003 KER 369 ] (DB).
90 Krishnan v. K.S. Krishnan ,

AIR 2004 Ker 155 [
LNIND 2003 KER 369 ] (158, 159) :
(2003) 3 Ker LT 166 [
LNIND 2003 KER 369 ] (DB).
91 Maharu v. Dhansai ,
AIR 1992 MP 220 [
LNIND 1991 MP 322 ] (223) :
1991 MPLJ 464 .
92 Maharu v. Dhansai ,
AIR 1992 MP 220 [
LNIND 1991 MP 322 ] (223) :
1991 MPLJ 464 .
93 Parmananda Swain v. Rabindranath Swain , 2003

AIHC 3903 (3905) :
AIR 2004 NOC 109 (Ori).
94 Ashim Ranjan Das v. Bimla Ghosh ,

AIR 1992 Cal 44 [
LNIND 1991 CAL 82 ] (46, 47) :
1991 (1) CWN 229 ; Paresh Nath v. Kamal Krishna ,
AIR 1958 Cal 614 [
LNIND 1957 CAL 140 ]:
(1957) 61 CWN 776 ; Surendra Nath v. Ram Chandra ,
(1971) 75 CWN 195 ; Lal Behari Samanta v. Gourhari Dawan , 54 Cal WN 912;
Paras Nath v. Kamal Krishna ,
AIR 1958 Cal 614 [
LNIND 1957 CAL 140 ]: 61 Cal WN 776; Uma Shanker Chowbey v. Mt.
Dhaneshwari ,
AIR 1958 Pat 550 ; see also Jogendra Nath Mondal v. Adhar Chandra Mondal ,
AIR 1951 Cal 412 : 55 CWN 289.
95 Ashim Ranjan Das v. Bimla Ghosh ,

AIR 1992 Cal 44 [
Page 29 of 29
S. 44. (A)
LNIND 1991 CAL 82 ] (46, 47) :

1991 (1) CWN 229 : 1991 (1) CLJ 352
96 Om Prakash v. Chhaju Ram , AIR 1992 P&H 219 (222); Parsini alia Mano v. Mohan
Singh ,
1982 PLJ 280 .
1 Lalita James v. Ajit Kumar ,

AIR 1991 MP 15 (17); Ram Dayal v. Manek Lal ,
1973 MPLJ 650 [
LNIND 1973 MP 44 ] : AIR 1973 Madh
Pra 222 ; Uma Shanker Chowbey v. Mt Dhaneshwari ,
AIR 1958 Pat 550 ; See also Peramanayakam v. Sivaraman ,
AIR 1952 Mad 419 [
LNIND 1951 MAD 94 ] (FB) :
ILR 1952 Mad 835 :
(1952) 1 MLJ 308 [
LNIND 1951 MAD 94 ] ; Kavitha Goud v. Nookala Sudarshan Reddy ,
AIR 2004 AP 326 [
LNIND 2004 AP 571 ] (343) :
(2004) 5 Andh LT 293 (DB).
2 Peramanayakam v. Sivaraman ,
AIR 1952 Mad 419 [
LNIND 1951 MAD 94 ] (FB) :
ILR 1952 Mad 835 :
(1952) 1 MLJ 308 [
3 Kavitha Goud v. Nookala Sudarshan Reddy ,

AIR 2004 AP 326 [
LNIND 2004 AP 571 ] (343) :
(2004) 5 Andh LT 293 (DB).
4 Kavitha Goud v. Nookala Sudarshan Reddy ,

AIR 2004 AP 326 [
LNIND 2004 AP 571 ] (343) :
(2004) 5 Andh LT 293 (DB).
End of Document
Darashaw Vakil
S. 45.
Where immovable property is transferred for consideration to two or more
persons, and such consideration is paid out of a fund belonging to them in
common, they are, in the absence of a contract to the contrary, respectively
entitled to interests in such property identical, as nearly as may be, with the
interests to which they were respectively entitled in the fund; and, where
such consideration is paid out of separate funds belonging to them
respectively, they are, in the absence of a contract to the contrary,
respectively entitled to interests in such property in proportion to the shares
of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were
respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be
equally interested in the property.
End of Document
S. 45. (A)
Darashaw Vakil
COMMENTS
Scope and application. —Sections 45, 46 and 47 relate to transfer to and by two or more persons. The
words "respectively" and "proportion" are words of severance and their employment in Section 45 makes it clear
that tenants in common and not joint tenants are referred to. 5 In case of a joint tenancy there must be unity of
possession, unity of interest, unity of title and unity of time. Conveyance of land to two or more persons without
words indicating the intention that they are to take as tenants in common, constitutes a joint tenancy. 6 The same
principle would apply to a transfer of property to husband and wife to whom the English Law applies. This section is
supplementary to Section 44.
If a property is purchased jointly by four persons by a common deed without indicating the amount of contribution of
the parties, the presumption is that each of the purchasers has equal share in the property. It is for the person who
claims that one of the purchasers did not acquire title but was mere name lender, to prove that such person was
really a benamidar. 7
Under
Section 45 of the Transfer of Property Act , where immovable property is transferred for consideration to
two or more persons jointly makes them co-owners of the property transferred, their interest are in proportion to the
share of the consideration they have advanced. In the absence of evidence of the consideration the co-owners shall
be presumed to have equal interest in the property.8 Co-owners have unity of possession and commencement of
title in the property but do not have unity of title or unity of interest in the property. Joint owner of the property
cannot be said to have title and interest in the property of another co-owner. Every joint owner has his individual title
and interest in the property purchased jointly be them. Thus relinquishment of title and interest in the joint property
by one joint owner in favour of another joint owner would only be transfer of interest of one joint owner in favour of
another joint owner, each joint owner having distinguishable, independent, individual title in the jointly purchased
property. 9
Where land is purchased jointly by several persons in the absene of contract for their respective shares, they being
joint owners as per the provisions of Section 45 are presumed to be equally interested in the land purchased, each
one being separately entitled to one unit. 10 Where the deed of agremeent clearly stated that the defendant was to
have 2/3rd and the plaintiff along with a third person to have only 1/3rd in the suit property according their share of
sale consideration, presumption could not be raised that the parties have equal share in the property. 11
Where there is no specification of the shares of the purchasers the rule of presumption laid down in the section
applies and they are deemed to be entitled to the property in equal shares. 12 The rule of presumption laid down in
paragraph 2 applies when no evidence is available and not where evidence is available but not adduced. 13
Page 2 of 9
S. 45. (A)
Transfer of Property Act is a general law, which deals with the rights with regard to the transfer of the
property in general. Where there was joint purchase of land, the share of each purchaser was not specified, the
specific shares were not specified in the revenue records, when the
Urban Land (Ceiling and Regulation) Act (44 of 1954) came into force, joint form under Section 6 of the
Act was submitted in the name of all, it was held that the purchasers were not entitled to one unit for each of them,
Section 45 of the T.P. Act could not be invoked for the purpose. It cannot be said that
Section 45 of the T.P. Act raises a presumption of equal interest/share in immovable property
transferred to two or more persons, in the absence of evidence as to the interest in the fund, out of which the
property was purchased.14
Where property has been jointly purchased and one of the joint owner transfers his share in the property to another
joint owner through a conveyance deed, such a deed even though styled as a release deed, is a conveyance-deed
chargeable with stamp duty as a deed of conveyance. 15
Where some persons by registered sale deed purchase land jointly, each purchaser should be treated as a co-
owner, the share of each co-owner would be equal. 16 In the absence of specific mention about the shares of co-
owners in any sale deed, all coowners will have their equal share in the properties thereunder. 17 There is nothing
to suggest in Section 45 that the section is inapplicable to an involuntary transfer. 18
Where the sale deed shows that the purchaser has paid 1/2 consideration on the purchase but his share has been
shown 1/21, he would be entitled to 1/2 share in the property purchased. 19
Where property is entered in the names of all the members of the joint family, the property cannot be joint family
property, a person alleging it as joint family property must prove sufficient nucleus. If the plaintiff cannot establish as
to what was the fund out of which the consideration money has been paid and what share in that fund each of the
parties had, presumption of equality of interest under
Section 45 of the T.P. Act would arise.20 On the facts of the case, it was held that what might have
originally been joint tenancy was transformed into a tenancy in "common". 21
Where the evidence did not show that the tenants and sub-tenants in occupation of tenanted premises were in
separate possession of the specific portions of the premises, the presumption under Section 45 is that the interests
of the two tenants and sub-tenants were equal. 22
Section 45 has a limited operation. 23 Section 45 only states that the interest inter se as between the several joint
purchasers of an immoveable property will subject to contract between them, be in proportion in which they were
entitled to the consideration for the purchase, and has nothing whatever to do with the method of creating common
ownership or the manner in which several persons can become common owners in respect of a single item of
property. 24 Joint tenancy is wholly unknown in this country and when two persons jointly purchase a house they
must be deemed to have acquired tenancy-in-common. In the absence of specification of shares in the sale deed,
the two should be presumed to have purchased the house in equal shares. 25
Where there was joint business, and there was no partition of the house and all members of the family were
residing in the house, the source of money for certain plot purchased was the joint earning, the presumption under
Page 3 of 9
S. 45. (A)
Section 45 was held not attracted in the case. 26
If two or more persons purchase a property out of common fund the share of each of those persons would be the
same as their interest in the common fund, then the rule in
Section 45 of the Transfer of Property Act would be automatically attracted. The fact that the property
was purchased in the name of one of the co-owners would not make a serious dent on the above rule of good
conscience provided, however, it is established by acceptable evidence that such purchase in the name of the co-
owner was by consent and that the consideration for such purchase emanates from common fund. The person in
whose name the property was purchased could not set up an exclusive title in himself and ward off the just and
equitable claims of other sharers who have contributed for purchase and with whose consent the purchase was
made in his name. All the persons who contributed fund for purchase of the said property would be co-owners and
each of them would have right in the said property in proportion to the fund they have contributed for purchase of
the said property.27
Resort can be had to principle of Sections 45 only if the property is transferred to two or more persons who pay the
consideration out of their joint or separate funds. When property has not been acquired by two or more persons but
by a single person, Section 45 would not apply. 28
Three tests. —The section deals with three classes of funds on a transfer of immoveable property to
two or more transferees and indicates the measure of interest taken by each. They are :—
(1) Common fund.
(2) Separate fund.

(3) Presumptive joint fund.
The respective interests the transferees take in the property in case (1) are identical with their respective interest in
the fund; in case (2) in proportion to the shares respectively advanced; in case (3), where there is no evidence of
their interest in the fund, equally.
Modification. —Of the above three rules, the first two are subject to modification by contract to the
contrary between the transferees entitled to the funds, while the third is subject to evidence adduced.
Common fund. —Property purchased out of common fund is held in shares in proportion to the
interests of the transferees in the common fund. 29
Separate funds. —When mortgagees advance moneys according to the shares specified in the
mortgage deed their rights in the mortgaged property will be proportionate to their interests. 30
Joint Venture. —A share in a joint venture, in absence of any document in writing, must be determined
having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant
No. 1 had half share in the property in terms of
Page 4 of 9
S. 45. (A)
Section 45 of the Transfer of Property Act . If the said immovable property formed assets of the joint
venture, the same would be an indicia to determine the shares held by the parties thereto. Ordinarily, the extent of
an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms
and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with
affairs of the business would be relevant.31
Gifts. —The section deals with transfers for consideration. Its principle has no application to gifts. 32
Revenue sale. —Where the owners, having committed default in paying revenue, their property was
sold and purchased by them at the sale by the Collector, who issued a certificate to them jointly, it was held that
they had equal shares notwithstanding their original shares being unequal. 33
Equal interest in property (Second Paragraph). —Where the purchase price is expressly stated to be
in the joint names of both the insolvent and his wife, there is a presumption when such a purchase is made and
there is no evidence one way or the other as to the source of the purchase money, that the property purchased
belongs in common to both. 34 Where sale deed in respect of suit land executed in favour of four persons did not
specify the shares of the vendees nor the ratio in which the vendees had paid the sale consideration, held in the
absence of share specification, the sale-deed would operate for the benefit of their respective shares, allotted in
consolidation proceedings. 35
The second part of Section 45, following the rule of purposive interpretation, does take in a situation where
consideration came exclusively from the fund of one of the two joint acquirers with the other contributing nothing for
the purchase. In such a situation, notwithstanding the fact that the name of one of them is included in the document
for whatever purpose, such person cannot be held to acquire any rights. The Court expressed the view that the
equitable rule in Section 45 must apply and the other acquirer, who has contributed the consideration entirely and
exclusively, must be held to have absolute rights over such property. 36
Where the lease property belonged to Municipal Corporation, on the death of the original lessee lease rights
devolved on all the heirs, the lease rights were transferred in favour of only the son, subsequently in view of the
new policy of the Government as the lease hold property were to be sold in favour of the occupants, as per
agreement between the parties in the name of defendant alone, sale deed was obtained and all the heirs
contributed for the purchase, all the heirs of the original lessee became the owners of the property and the
defendant could not claim exclusive owner of the property. 37
Partition suit—Shares of the parties. —

Section 45 of the Transfer of Property Act lays down that where immovable property is transferred for
consideration to two or more persons and such consideration is paid out of a fund belonging to them in common,
they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as
nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such
consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to
the contrary, respectively entitled to interest insuch property in proportion to the shares of the consideration which
they respectively advanced. In the absence of evidence as to the interests in the fund to which they were
respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be
equally interested in the property.38
Where in a suit for partition by metes and bound by the father against the sons, there was no evidence as to the
Page 5 of 9
S. 45. (A)
share of the parties, the parties did not have joint business, the decree for partition determining the shares of the
parties was passed on the basis of the admissions made by the parties in their Income Tax and Wealth Tax returns
regarding the contribution in made by them in the purchase and construction of the property. 39
Section 48 T.P. Act and

Section 47, Registration Act, 1908 —In view of the provisions of
Section 48, T.P. Act and
Section 47, Registration Act , a document executed on an earlier date though registered later will operate
from the date of its execution, if it is duly registered, and shall take predence over the later sale.40
Various incidents of joint tenancy and tenancy in common in English Law. — The essential
difference between the two is that tenants in common hold their lands either by several titles or by several rights but
joint tenants hold by one title and by one right, but there is no difference between them as to possession and
manner of taking the profits. 41 Notwithstanding the leaning of late to a tenancy in common, an interest given to two
or more, either by way of legacy or otherwise, is joint unless there are words to severance or an inference arises
from the nature of the transaction. 42 There is a difference between words which create a tenancy in common in a
will and in a conveyance : for the words equally to be divided, in a will, create a tenancy in common not by force of
the words themselves but by the intent of the testator, that there should be no survivorship.
There were two ways of creating a tenancy in common by conveyance, viz. , either by limiting it to them expressly
as tenants in common, or else by limiting a moiety, or a third, or other undivided part, to one; and the other moiety,
or third, to another, etc. , for, if otherwise, though the words "equally divided" be used, yet they shall signify only an
equal division and proportion of the profits. 43 Where persons contributed rateably to the purchase-money they
were held to be tenants in common. 44 In case of a joint tenancy a receiver could be appointed. 45 A joint tenancy
may be severed. There is nothing hard, severe or unreasonable in the law of joint tenancy, there being always an
equal chance of survivorship in all the joint tenants. If any of them had a bad opinion of their own lives they may
sever. 46 A marriage of a woman who is a joint tenant in freeholds or leaseholds does not operate as a severance
of her joint tenancy. 47 It may also be severed by conduct, 48 or by alienation of the interest of one joint tenant. 49
But an actual alienation,
not a mere declaration of one of the parties, is necessary. 50 Nor will a deed of gift by one joint tenant of his moiety
to his wife effect a severance, 51 being voluntary and without consideration. A demise by one of two tenants of his
part to the other severs the joint tenancy. 52 As between tenants in common, possession by one is possession of
the other. 53 There is no fiduciary relation between them. 54 Where one tenant in common receives all the profits his
liability is to account to the other only for what he receives more than what comes to his just share. 55 But for
ordinary repairs a tenant in common has no right of action against his co-tenant for contribution. 56 A tenant in
common in occupation is not liable to the other for waste. 57 But after a decree in a partition suit he may be
restrained by injunction from destroying or wasting the property. 58 Tenants in common cannot make a joint lease
for their estates are several and distinct and there is no privity between them. 59 And when two tenants in common
join in a lease it operates as a several lease of each and the confirmation of the other. It cannot be pleaded as a
joint demise. 60
Transfer for consideration by persons having distinct interests.

Page 6 of 9
S. 45. (A)
5 Torret v. Frampton , (1654) Style 434 : 58 ER 840; Le Gros v. Cockerell , (1832) 5 Sim.
384 : 58 ER 380.
6 Mankamna Kunwar v. Balkishan Das ,

(1906) 28 All 38 .
7 Atindra N. Chakrabarty v. Anil K. Chakravarty , 2006 (1) Cal HN 521 (524) (Cal-DB).
8 Gyan Chand v. State , AIR

1998 Raj 223 (224) :
1998 (2) Raj LW 1101 :
1998 (3) WLC 181 .

1998 Raj 223 (224) : 1998 (2) Raj LW 1101 :
1998 (3) WLC 181 .
10 Ranchhod Lala v. Union Territor , Dadra & Nagar Havelli,

AIR 1996 HP 65 (68) (DB); Nalamuru Nadipi Subbanna v. Katru Chenamma ,
2002 AIHC 4201 (AP); Atindra N. Chakrabarty v. Anil K. Chakravarty , 2006 (1) Cal
HN 521 (524) (Cal-DB).
11 Nalamuru Nadipi Subbanna v. Katru Chenamma ,

2002 AIHC 4201 (AP).
12 Abdullah v. Ahmad ,
AIR 1929 All 817 .
13 Ram Pher v. Ajudhia Singh ,

AIR 1925 Oudh 369 .
14 Mohansingh Gurucharansingh v. State ,

AIR 1996 Guj 80 (84).

1998 Raj 223 (224) : 1998 (2) Raj LW 1101 :
1998 (3) WLC 181 .
16 Durlabhhji D. Patel v. Competent Authority & Dy. Collector , Surat,

AIR 1996 Guj 197 [
LNIND 2007 GUJ 244 ] (198); 1995 (2) Guj LH (UJ) 18.
17 Durlabhhji D. Patel v. Competent Authority & Dy. Collector , Surat,

AIR 1996 Guj 197 [
LNIND 2007 GUJ 244 ] (198) : 1996 (2) Guj LR 640.
18 Reazaddi Behari v. Yakub Bepari ,

AIR 1941 Cal 416 (417) : 200 IC 37; Balai Chandra v. Raisuddin Naskar ,
AIR 1956 Cal 58 [
Page 7 of 9
S. 45. (A)
LNIND 1955 CAL 162 ]: 60 Cal WN 270 (

AIR 1940 Cal 145 distinguished ).
19 Mohan Lal v. Board of Revenue ,

AIR 1982 All 273 (275, 276).
20 Debraj Pradhan & others v. Ghanshyam & others ,

AIR 1979 Ori 162 (164).
21 Jagannath v. Dy. Director , Consolidation, U.P.,

AIR 1977 All 176 (181, 182) :
(1976) 2 All LR 633 .
22 Jagan Nath v. Abdul Aziz ,

AIR 1973 Del 9 [
LNIND 1972 DEL 129 ] (14) : 1972 Rajdhani LR 80.
23 Guruswami Asari v. Rajy Asari ,

AIR 1973 Mad 473 [
LNIND 1973 MAD 10 ] (476) : 86 Mad LW 462 :
(1973) 2 MLJ 203 [
24 Guruswami Asari v. Rajy Asari ,

AIR 1973 Mad 473 [
LNIND 1973 MAD 10 ] (476) : (1973) 2 Mad LJ 203.
25 Nnak v. Ahmad Ali ,

AIR 1947 Lah 399 (404) (FB).
26 Rajeswari v. Balchand ,Jain

AIR 2001 MP 179 [
LNIND 2000 MP 83 ] (185): (2001) 5 MPHT 227 (DB); see also Mangal Singh v.
Harkesh ,
AIR 1958 All 42 : 1957 All LJ 752.
27 M. Printer v. Marcel Martins

,
AIR 2002 Kant 191 [
LNIND 2001 KANT 208 ] (200) : ILR (Kant)
2002 (3) Ker 3757 ; Atindra N. Chakrabarty v. Anil K. Chakravarty , 2006 (1) Cal HN
521 (524) (Cal-DB).
28 Mangal Singh v. Harkesh ,

AIR 1958 All 42 (48) : 1957 All LJ 752 (DB).
29 Parsotam v. Janki Bai ,

(1907) 29 All 354 (364).
30 Partab v. Nehal Singh ,

AIR 1926 All 676 .
Page 8 of 9
S. 45. (A)
31 Gannmani Anasuya v. Parvatini Amarendra Chowdhary , AIR 2007

SC 2380 (2384) :
(2007) 10 SCC 296 .
32 Arakal Joseph Gabriel v. Domingo Inas , (1911) 34 Mad 80.
33 Debi Pershad v. Mt. Aklio ,

(1899) 4 CWN 465 .
34 T.D. Tehrani v. Official Assignee ,

AIR 1976 Mad 222 [
LNIND 1974 MAD 337 ] (223) (DB) : 88 Mad LW 738; See also Syed Tufel Ahmed
v. Syed Abrar Ahmed , 1960 MPLJ (Notes) 204 (Where total consideration paid by one purchaser—The purchaser not
paying consideration would have no share).
35 Swaroop Singh v. District Deputy Director of Consolidation, Haridwar ,

AIR 2006 NOC 570 2006 NOC 570 : 2006 AIHC (NOC) 165 (Uttra).
36 Vasanthakumary v. Omanakuttan Nair,

2009 (3) KLT 43 (49) (Ker) :
2009 (2) Ker LJ 634 (DB)
37 M. Printer v. Marcel Martins ,

AIR 2002 Kant 191 [
LNIND 2001 KANT 208 ] (197, 200, 201) : 2002 (4) ICC 157.
38 Chiranjilal v. Bhagwan Das ,

AIR 1991 Del 325 (328) : (1991) 3 DL 350.
39 Chiranji Lal v. Bhagwan Das ,

AIR 1991 Del 325 (332, 333) : (1991) 3 DL 350.
40 Kulwant Singh v. Balwant Kaur , AIR 1991 P & H 291 (296, 297).
41 Pullen v. Palmer , (1696) 3 Salk. 207 : 91 ER 780.
42 Morley v. Bird , (1798) 3 Ves. Jun. 628 : 30 ER 1192.
43 Stringer v. Phillips , (1730) as reported in 1 Eq. Cas. Abr. 291, n. 21 ER 1053.
44 Lake v. Craddock , (1733) 3 P. Wms. 158 : 24 ER 1011.
45 Hills v. Webber,
(1901) 17 TLR 513 .
Page 9 of 9
S. 45. (A)
46 Staples v. Maurice , (1774) 4 Bro. Parl. Cas. 580 : 2 ER 395.
47 Palmer v. Rich , (1897) 1 Ch. 134.
48 Williams v. Hensman , (1861) 30 LJ Ch. 878 : 70 ER 862; Leak v. Macdowall , (1862) 32

Beav. 28 : 55 ER 11.
49 Sym’s case , (1584) Cro. Eliz. 33 : 78 ER 299.
50 Partriche v. Powlet , (1740) 2 Atk. 54 : 26 ER 430.
51 Moyse v. Gyles , (1700) Prec. & Ch. 124 : 24 ER 60.
52 Cowper v. Fletcher,
(1865) 34 LJQB 187 : 122 ER 1267.
53 Sterling v. Penlington , (1739) 2 Eq. Cas. Abr. 730 : 22 ER 616.
54 Kennedy v. De Trafford,
(1897) AC 180 .
55 Henderson v. Eason,
(1851) 17 QB 701 .
56 Leigh v. Dickeson,
(1884) 15 QBD 60 .
57 Griffies v. Griffies,
(1863) 8 LT 758 .
58 Bailey v. Hobson , (1869) 39 LJ Ch. 270.
59 Heatherley v. Weston , (1764) 2 Wils. 232 : 95 ER 783.
60 Gyles v. Kempe , (1677) Freem. KB 235 : 89 ER 168.
End of Document
Darashaw Vakil
S. 46.
Where immovable property is transferred for consideration by persons
having distinct interests therein, the transferors are, in the absence of a
contract to the contrary, entitled to share in the consideration equally, where
their interests in the property were of equal value, and, where such interests
were of unequal value, proportionately to the value of their respective
interests.
Illustrations
(a) A , owning a moiety, and B and C each a quarter share, of mauza Sultanpur, exchange an eighth share of that
mauza for a quarter share of mauza . There being no agreement to the contrary, A is entitled to an eighth share in
Lalpura, and B and C each to a sixteenth share in the mauza .
(b) A , being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A ’s
life-interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the
purchase-money. B and C to receive Rs. 400.
End of Document
S. 46. (A)
Darashaw Vakil
COMMENTS
Scope and application. —The section deals with two classes of transferors, viz. , those having interest
in the property of
Transfer by co-owners of share in common property Sec. 47 523
(i) equal value

(ii) unequal value.
In case (i) they share in the consideration equally, in case (ii) proportionately to the value of their respective
interests.
The rule in the section may be modified by the transferors by contract to the contrary.
Section 46 contrasted with Section 45. —As Section 45 deals with the respective interests taken by
two or more transferees in the property transferred as dependent upon their interests in the consideration, Section
46 deals with interest of two or more transferors in the consideration as dependent upon their respective interests in
the property transferred. The former section relates to transferees, the latter to transferors. Both deal with tenants in
common. Section 46 speaks of distinct interests which cannot exist in a joint tenancy. Section 46 is the converse of
Section 45.
Gifts. —As consideration is an essential ingredient in the section its principles do not apply to gifts.
Persons having distinct interest. —It is not necessary that the transferors should belong to the same
class such as vendors, lessors or mortgagors; they may belong to different classes such as mortgagor and
mortgagee, lessor and lessee, tenant for life and reversioner, tenant for life and remainderman.
Page 2 of 2
S. 46. (A)
Consideration. —This may consist of money or lands taken in exchange as in illustration (a) to the
section. Where the vendor never challenged the sale deed executed by his attorney on ground of non-receipt of
sale consideration, never made any grievance on that ground, it is not open to a stranger to challenge the sale deed
on the ground of consideration. 61
Co-widows. —Under the Mitakshara, the estate which two Hindu widows take by inheritance is not
several but a joint estate for life. 62
Transfer by co-owners of share in common property.
61 Jarnail Singh v. Gurmail Singh ,

2005 (1) Punj LR 370 (372) (P&H).
62 Ram Piyari v. Mulchand ,

(1885) 7 All 114 ; Gajapathi Nilmani v. Gajapathi Radhamani , (1876) 1 Mad 290 : 4
IA 212. Bhugwandeen v. Myna Baee , (1867) 11 MIA 487.
End of Document
Darashaw Vakil
S. 47.
Where several co-owners of immovable property transfer a share therein
without specifying that the transfer is to take effect on any particular share
or shares of the transferors, the transfer, as among such transferors, takes
effect on such shares equally where the shares were equal, and, where they
were unequal, proportionately to the extent of such shares.
Illustration
A , the owner of an eight-anna share, and B and C , each the owner of a four-anna share,
in mauza Sultanpur, transfer a two-anna share in the mauza to D , without specifying from which of their several shares the
transfer is made. To give effect to the transfer one-anna share is taken from the share of A , and half an-anna share from
each of the shares of B and C .
COMMENTS
Scope and application. —When several co-owners of immoveable property transfer a

share or shares therein such transfer takes effect on shares :—
(1) Equally when their shares are equal.

(2) In proportion to the extent of their shares when such shares are unequal.
The section is complimentary to Section 46 which deal with how consideration is to be shared in similar circumstances.
Section 47 deals with transfer of a fraction while Section 46 deals with transfer of the whole.
Priority of rights created by transfer.
S. 48.
Where a person purports to create by transfer at different times rights in or
over the same immovable property, and such rights cannot all exist or be
exercised to their full extent together, each later created right shall, in the
absence of a special contract or reservation binding the earlier transferees,
be subject to the rights previously created.
Page 2 of 2
End of Document
S. 47. (A)
Darashaw Vakil
COMMENTS
Scope and application. —This section is based on the English maxim, " qui prior est tempore, potior
est jure " subject to certain exceptions to be noted hereafter and subject to special contract or reservation binding
the earlier transferees.
The principle of priority expressed in this section is that when a person by two or more instruments creates rights
over the same immoveable property and the essential incidents of the prior instrument conflict with the essential
incidents of a subsequent instrument, the rights created by the subsequent instrument shall be subject to the rights
created by the prior instrument unless such is excluded by a reservation in the prior instrument as a result of a
special contract. 63
An earlier transferee has a right to protect his possession on the basis of a sale agreement even against a
subsequent transferee. The terms and conditions of the sale agreement entered into by the erlier transferee would
also be binding on the subsequent transferee. 64
In the instant case, the borrower had taken a loan from the bank, creating first charge in favour of the bank. A one
time settlement was arrived at between the borrower and the bank, and the property was sold for a higher amount.
Held, the first charge holder, the bank, was entitled to recover the entire amount due to it, and the balance amount
was to be paid to the second charge holder, KSFC. 65
Latter rights are subject to rights previously created, where different rights at different times are created and where
all such rights cannot co-exist. 66
A familiar example is in the case of a lease where the lessee usually stipulates that on a sale of the property the
lease shall determine notwithstanding the residue of the period stipulated. Cases under the section can only arise
when the owner of the immoveable property has not parted by the prior transfer with his full proprietary interest.
Section 48 is founded upon the equally important principle that no man can convey a better title than what he has. If
a person had already effected a transfer, he cannot derogate from his grant and deal with the property free from the
rights created under the earlier transaction. His prior title as absolute and free owner is curtailed or diminished by
rights already created under the earlier transaction. 67 Section 48 is absolute in its terms and does not contain any
protection or reservation in favour of a subsequent transferee who has no knowledge of the prior transfer.
Page 2 of 8
S. 47. (A)
Knowledge or no knowledge, a subsequent transfer cannot claim any priority as against an earlier transferee. 68
Section 48 determines the priority when there are successive transferees. It provides that where a person purports
to create, by transfer at different times, rights in or over the same immovable property, and such rights cannot at all
exist or be exercised to their fullest extent together, each later created right shall, in the absence of a special
contract or reservation binding the earlier transferee, be subject to the rights previously created. 69
Section 48 reproduces the well established equitable maxim qui prior est tempore potior est jure and lays down that
the transferor cannot prejudice the rights of the transferor by any subsequent dealing with the property. If there are
successive transfers of the same property, the later transfer is subject to the prior transfer. It follows that in the case
of two successive mortgages the later or puisne mortgage is subject to the prior mortgage. 70
However, if the sale deeds themselves show an intention either that they shall take effect pari passu or even that
the later deed shall take effect in priority to the earlier, it will be presumed that the deeds were executed in such
order as to give effect to that intention. Where two or more deeds were executed on the same day and the order of
their execution cannot be ascertained, all the deeds will take effect at once, and pari passu . The rule of priority is
subject to the exception covered by the equitable principle of estoppel. In a case where the first transferee was
aware of the second transfer and also the contents of the deed thereunder, necessarily, any claim by him on the
right of priority has to be examined with reference to the principles of equity and also the rule of estoppel. 71
In view of the provision of

Section 48 of the T.P. Act , every previous transfer of the property had overriding effect over the
subsequent transfer of such property by the same person.72
In terms of
Section 48, T.P. Act claim of the first charge holder shall prevail over the claim of the second charge
holder and in a given case where the debts due to both, the first charge holder and the second charge holder, are to
be realized from the property belonging to the mortgagor, the first charge holder will have to be repaid first.73
When similar rights are created in favour of two persons at different times, the one who has advantage in time
should also have advantage in law. If a person has already effected a transfer, he cannot derogate from his grant
and deal with property free from rights created under earlier transaction. 74
The exceptions to the provisions of Section 48 are :
(i) Where parties execute a Registered Deed at any point in time which is subsequent to a prior but an
unregistered deed. This is also subject to the doctrine of notice, i.e., that parties to the Registered Deed
executed after the Unregistered Deed did not have notice of the same.
(ii) Where there are exceptions carved out by a statute for example, Section 98 of the Bengal Tenancy Act.
(iii) A mortgage executed on the directions of the Court to preserve a property;

Page 3 of 8
S. 47. (A)
(iv) Where a ‘salvage lien’ is created, i.e., where lien is created for moneys advanced for the purposes of
saving the property from destruction or forfeiture. The salvage lien is confined in English Law to maritime
lien. 75
In view of the provisions of

Section 48, T.P. Act and
Section 47, Registration Act, 1908 , a document executed on an earlier date though registered later will
operate from the date of its execution, if it is duly registered, and shall take precedence over the later sale.76
Where the seller specifically mentioned in the deed of sale that the disputed passage shall be in the exclusive
ownership and possession of the plaintiff, such special contract and condition was held binding on the defendant
transferee. 77
Requisites of the section. —The rights must be created :
(1) at different times;
(2) in favour of different transferees;
(3) over the same immoveable property;
(4) they must be such as cannot all exist together;
(5) they must be such as cannot be exercised to their full extent together;
(6) by the same or different transferors.
Transfer. —Includes a mortgage by deposit of title-deeds. 78 And that this is so is supported by

reference to
Section 58(f) of the Transfer of Property Act and the proviso to
Section 48 of the Registration Act, 1908 . In India there is no distinction between a legal and equitable
mortgage.79
Rights need not be created by the same person. —The antagonistic deeds need not be executed by
the same person under the section. The first deed may be executed by the transferor, the second by his assignor or
his heir. So far as the two documents create, at different times, rights in or over the same immoveable property
which cannot co-exist or cannot be exercised to their full extent together, the section comes into operation. In this
the section bears a similarity to
Section 50 of the Registration Act, 1908 , which deal with rival documents which need not be executed
by the same person.80
Cannot all exist or be exercised to their full extent together. —The principle is applicable when the
instruments in question are conflicting 81 and not where legal effect can be given to one without infringement of the
other. 82
Page 4 of 8
S. 47. (A)
Possession. —The date of transfer and not possession is the determining factor. 83
Date of execution, not registration, the decisive factor. —The principle of the section is independent
of any consideration of registration. It is applicable only when the subsequent instrument operates in defeasance of
an essential incident of the prior instrument. According to
Section 47 of the Registration Act , XVI of 1908, a registered document operates from the time from
which it would have commenced to operate as if no registration thereof had been required or made, and not from
the time of registration.84 Where a sale deed is executed earlier but registered at a later date, it prevails over a
subsequent sale deed. 85
Abrogation of priority. —There is a notable exception to the general rule, " qui prior est tempore, potior
est jure " to be found in advances made to save the encumbered property from loss or destruction. So that a
mortgage executed by a receiver for the purpose of preserving the property takes precedence of all other loans,
even of any loan raised at an early date for the preservation of the property. 86 Again, priority is lost by a prior
mortgagee by the existence of circumstances mentioned in
Sections 78 and
79 of the
Auction-purchasers. —As between competing auction-purchasers, the principles which govern

preference are the same as those which regulate the claims of priority among mortgagees. 88
Priority of operation of deeds executed on the same day. —When two deeds are executed on the
same day, the Court must inquire which was in fact executed first, 89 but if there is anything in the deeds
themselves to show an intention, either that they shall take effect pari passu or even that the later deed shall take
effect in priority to the earlier, in that case the Court will presume that the deeds were executed in such order as to
give effect to the manifest intention of the parties. 90 In case of mortgagees, where by evidence it cannot be
ascertained which takes priority, they take as joint tenants or tenants in common. 91
Concurrent leases. —A familiar illustration of the section is to be found in concurrent leases dealt with
in the chapter on Leases.
Owelty or equality of partition. —When an owelty is awarded to a member on partition for equalization
of the shares on an excessive allotment of immovable properties to another member of the joint family, such a
provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may
be created in express terms by the provisions of the partition decree itself. There would thus be the creation of a
legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in
express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of
an express provision on that behalf. The member to whom excessive allotment of property has been made on such
partition cannot claim to acquire properties falling to his share irrespective of or discharged from the obligation to
pay owelty to the other members. What he gets for his share is therefore the properties allotted to him subject to the
obligation to pay such owelty and there is imported by necessary implication an obligation on his part to pay owelty
out of the properties allotted to his share and a corresponding lien in favour of the members to whom such owelty is
awarded on the properties which have fallen to his share. 92 Not only is this the normal position on a partition
decree where there is an unequal distribution of properties among the members of the joint family but even where
an encumbrance has been created on a member’s share before the partition is effected, the encumbrancer is
postponed to the member to whom such owelty is awarded under the partition decree. A lien or a charge created in
Page 5 of 8
S. 47. (A)
favour of a member in regard to such owelty obtains precedence over an encumbrance and there are authorities to
show that such lien or charge has priority over an earlier mortgage. 93
This section and companies. —

Section 9 of the Companies Act, 1956 , only states that provisions thereof would override the
Memorandum of Association and Articles of Association of the company or any other agreement executed or
resolution passed by the company. There does not exist any provision in the
Companies Act, 1956 which provides that the provisions of
Section 48 of the Transfer of Property Act would not be applicable in relation to the affairs of a company.
Unless, expressly or by necessary implication, such a provision contrary to or inconsistent therewith carying a
different intent can be found in the
Section 48 of the Transfer of Property Act , cannot be held to be inapplicable.94
Securitization and Reconstruction of Financial Assets and Enforcement of Security

Interest Act , 2002, Sec tion 13(4). —Sub-section (6) of Section 13 of the Securitization Act is not
inconsistent with
Sections 8 ,
48 and
109 of the
Transfer of Property Act . On the other hand, sub-section (6) of Section 13 of the Securitization Act is in
tune with
Sections 8 ,
48 and
109 of the
Transferee’s right under policy.
63 Motichand v. Sagun , (1905) 29 Bom 46 ; Narayan v. Laxuman , (1905) 29 Bom 42 ;

Karamat Khan v. Sami-ud-din ,
(1886) 8 All 409 (418); Sirbadh v. Ragunath ,
(1885) 7 All 568 (572); Nandkishore v. Hajarilal,
AIR 2009 (NOC) 2445 (M.P.) ; Narayan Madhavrao Warkhinde v. Magiya Lalya,
2011 (1) Bom CR 420 :
2010 (4) Mah LJ 986 (Bom) (Section 48 ordains to accept supremacy of former sale
deed in all terms than later) ; Xavier v. John,
AIR 2011 Ker 103 [
LNIND 2010 KER 767 ]:
2011 (1) KLT 753 :
2011 (1) Ker LJ 604 ).
64 Nandkishore v. Hajarilal,
AIR 2009 (NOC) 2445 (M.P.)
65 Karnataka State Financial Corporation, Bangalore v. State Bank of India, 2011 AIR CC
2163 (2166) (Kant) (DB)
Page 6 of 8
S. 47. (A)
66 Ravinder Singh v. Naresh Kukreja,

2009 (160) DLT 350 :
2009 (9) AD 164 (Del)
67 S. Arunachalam Asari v. Sivan Perumal Asari ,

AIR 1970 Mad 226 [
LNIND 1968 MAD 118 ] (230).
68 S. Arunachalam Asari v. Sivan Perumal Asari ,

AIR 1970 Mad 226 [
LNIND 1968 MAD 118 ] (230).
69 Subudini Kar v. Sabitri Rani Deb,

2012 (115) AIC 801 (805, 806) (Gau)
70 State of AP v. Rajah Ram Varu,

AIR 1966 AP 233 [
LNIND 1965 AP 63 ] (236) (DB) : (1965) 2 Andh WR 393; Xavier v. John,
AIR 2011 Ker 103 [
LNIND 2010 KER 767 ]:
2011 (1) Ker LJ 604 ).
71 Xavier v. John,
AIR 2011 Ker 103 [
LNIND 2010 KER 767 ] (107, 108) :
2011 (1) KLT 753 :
2011 (1) Ker LJ 604 :
ILR 2011 Ker 824
72 Mohd. Ashraf v. M.P. Housing Board,

2011 (1) MPLJ 444 (451) (M.P.).
73 ICICI Bank Ltd. v. SIDCO Leather Ltd. , AIR

2006
SC 2088 (2097) :
(2006) 10 SCC 452 [
LNIND 2006 SC 328 ] : (2006) 3 All LJ 759; Dhar Spinner (P) Ltd v. B. For L. & F.R.,
2010 (2) MPLJ 354 (356) (M.P.).
74 Subudini Kar v. Sabitri Rani Deb ,

2012 (115) AIC 801 (Gau)
75 ICICI Bank Ltd. v. SIDCO Leather Ltd. , AIR 2006

SC 2088 (2098) :
(2006) 10 SCC 452 [
LNIND 2006 SC 328 ].
76 Kulwant Singh v. Balwant Kaur, AIR 1991 P & H 291 (296, 297); Xavier v. John,
AIR 2011 Ker 103 [
LNIND 2010 KER 767 ] (107, 108) :
2011 (1) KLT 753 ).
Page 7 of 8
S. 47. (A)
77 B. Sivaraman v. S. Ramalingam ,
AIR 2007 Mad 221 (227, 228).
78 Ralli Bros. v. Punjab National Bank Ltd. , (1930) 11 Lah 564 ; Gokul Dass v. Eastern
Mortgage and Agency Co.,
(1906) 33 Cal 410 ; Coggan v. Pogose,
(1885) 11 Cal 158 .
79 Imperial Bank of India v. U. Rai ,

(1924) 51 Cal 86 : 50 IA 283.
80 Chunilal v. Ramchandra , (1898) 22 Bom 213 ; Kondiba v. Nana , (1903) 27 Bom 408.
81 Sirbadh Rai v. Raghunath ,

(1885) 7 All 568 (572); Karamat Khan v. Sami-ud-din ,
(1886) 8 All 409 (418).
82 Ramachandra v. Krishna , (1886) 9 Mad 495 ; Ramaraja v. Arunachala , (1884) 7 Mad

248 ; Sobhagchand v. Bhaichand , (1882) 6 Bom 193.
83 Narayan v. Laxuman , (1905) 29 Bom 42 ; Khondiba v. Nana , (1903) 27 Bom 408.
84 Gopal Ram v. Lachmi Misir ,

AIR 1926 All 549 ; Bindeshri v. Somnath ,
(1916) 14 ALJ 382 ; Motichand v. Sagun , (1905) 29 Bom 46 ; Narayan v. Laxuman
, (1905) 29 Bom 42 ; Santaya v. Narayan , (1884) 8 Bom 182.
85 Azeezulla Sheriff v. Bhabhutimul,

AIR 1973 Mys 276 (280) :
(1972) 2 Mys LJ 408 ; See also Vannarakkal Srudhaman v. Chandranaath
BalaKrishnan,
(1990) 3 SCC 291 [
LNIND 1990 SC 137 ] (293) :
(1990) 1 SCR 832 [
LNIND 1990 SC 137 ] ; Handa Annual v. Avadirappa Pathar,
(1991) 1 SCC 715 .
86 Giridhari v. Dhirendra ,
(1907) 34 Cal 427 .
87 See S. Section 50, Indian

Registration Act .
88 Baijanath v. Bhimappa ,
(1901) 3 Bom LR 92 .
89 Gartside v. Silkstone & Dodworth Coal & Iron Co ., (1882) 21 Ch. D. 762; Ramratan v.
Bishun Chand ,
(1906) 11 CWN 732 .
Page 8 of 8
S. 47. (A)
90 Gartside v. Silkstone & Dodworth Coal & Iron Co ., (1882) 21 Ch. D. 762.
91 Ramratan v. Bishun Chand ,

(1906) 11 CWN 732 .
92 T.S. Swaminatha v. Official Receiver, AIR

1957 SC 577 (582) :
1957 SCR 775 [
LNIND 1957 SC 30 ].
93 T.S. Swaminatha v. Official Receiver, AIR

1957 SC 577 (582) :
1957 SCR 775 [
LNIND 1957 SC 30 ].
94 ICICI Bank Ltd. v. SIDCO Leather Ltd. , AIR 2006

SC 2088 (2097) :
(2006) 10 SCC 452 [
LNIND 2006 SC 328 ]..
95 Pushpangadan v . Federal Bank Ltd .,

2011 (4) KLT 134 [
LNIND 1999 KER 218 ] (150) (FB).
End of Document
Darashaw Vakil
S. 49.
Where immovable property is transferred for consideration, and such
property or any part thereof is at the date of the transfer insured against loss
or damage by fire, the transferee, in case of such loss or damage, may, in
the absence of a contract to the contrary, require any money which the
transferor actually receives under the policy, or so much thereof as may be
necessary, to be applied in reinstating the property.
End of Document
S. 49. (A)
Darashaw Vakil
COMMENTS
Scope. —The section does not come into operation until the transfer is executed as the words
"transferred" and "at the date of transfer" indicate. The marginal note is not correct. The transferee has no right
under the policy. His rights under the section are against the transferor (1) on the moneys actually received by the
transferor, and (2) to be applied in reinstating the property.
The Law of Property Act, 1925. —Section 47 (1) of this Act enacts as follows:— "Where after the date
of any contract for sale or exchange of property, money becomes payable under any policy of insurance maintained
by the vendor in respect of any damage to or destruction of property included in the contract, the money shall, on
completion of the contract, be held or receivable by the vendor onbehalf of the purchaser and paid by the vendor to
the purchaser on completion of the sale or exchange, or so soon thereafter as the same shall be received by the
vendor."
By sub-section (3) the above rule is made applicable to a sale or exchange by an order of the Court.
The above section differs from the present one inasmuch as the destruction referred to is caused before the
transfer. Moreover, under English Law the purchaser under a contract of sale is the equitable owner thereof.
Reinstatement. —The transferee has no right to be reimbursed for his loss. His only right is to
reinstatement. He cannot claim the insurance moneys when he is a mortgagee in discharge or reduction of the
amount due to him.
Policy of insurance. —A fire insurance is a contract of indemnity and where there is a contract of
indemnity no more can be recovered by the insured than the amount of his loss. Only those can recover who have
an insurable interest and they can recover only to the extent to which that insurable interest is damaged by the loss.
An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a
Court of Equity will give effect to by transferring the property sold to the purchaser, and so far as he is a trustee he
is so only in respect of the property contracted to be sold. Of this the policy is not a part. Upon payment of the
amount of loss the insurer is entitled to be put into the place of the insured; and if at a subsequent time the assured
Page 2 of 3
S. 49. (A)
receives compensation from other sources for the loss sustained by him, the insurer is entitled to recover from the
assured any sum which he may have received in excess of the loss actually sustained by him. 96
Vendor and purchaser. —Under English Law, a contract of sale makes the purchaser an equitable
owner, whilst under Indian Law it creates no interest for the purchaser. A policy of fire insurance is a contract of
indemnity, the insurance company being liable to make good the actual loss sustained by the assured. Prior to the
Law of Property Act, 1925, it was settled law that "on the sale of a thing insured no interest in the policy passes to
the vendee unless at the time of the sale the policy be assigned either expressly or impliedly". 1
In England between vendor and purchaser a case arose 2 where a fire occurred after the contract but before
completion. It was held by Brett and Cotton, L.J.J., affirming the decision of Jessel, M.R., that the purchaser who
had completed his contract, was not entitled as against the vendor to the benefit of the insurance. They, however,
doubted whether as between the vendor and the insurance company the former could retain the moneys. This
expression of doubt gave rise to the case of Castellain v. Preston . 3 As the vendor in Rayner v. Preston
4 had received not only the insurance moneys from the company but the sale was afterwards completed and the
purchase-money agreed upon was also received by him without any abatement on account of the damage by fire, it
was held that the company was entitled to recover a sum equal to the insurance money from the vendor for their
own benefit. In a Rangoon case 5 it was held that a purchaser under a contract of sale had an insurable interest
under the following circumstances. The property was insured on the 16th October 1928 and was conveyed on the
16th August 1929. On the same day subsequent to the conveyance the original vendor entered into an agreement
with the purchaser for a repurchase of the property by 31st December 1929. On the 12th October 1929 the policy
was renewed for a further period of one year to 12th October 1930. Before the conveyance was executed by the
purchaser to the original vendor as stipulated the property was destroyed by fire on the 19th April 1930.
Mortgagor and mortgagee. —As between these it is usually provided in the mortgage itself that on
occurrence of a fire the mortgagor shall receive the mortgagemoney and employ it either in reinstating the property
or in repayment to the mortgagee according to the latter’s opinion. Such a case would fall, in the absence of a
contract to the contrary, within the provisions of this section. There are further provisions with regard to mortgages
enacted in Sections 72 and 76 of the Act. A mortgagee, however, cannot claim against the insurance company
under a policy of insurance effected by the mortgagor unless there is a covenant to insure for the benefit of the
mortgagee or to apply the policy moneys in reinstatement or otherwise for the benefit of the mortgagee. 6 Where
the defendants assigned certain machinery by bill of sale to secure a sum of money advanced by the plaintiff and
the deed contained a covenant to insure but no provision for the application of policy moneys in case of fire in
liquidation of the mortgage, it was held, on the machinery being burnt down, that the plaintiff had no claim to the
benefit of the policy as against the defendants, for to hold otherwise would be to make a new contract between the
parties. 7 A question of somewhat the same kind was decided in favour of the mortgagee in Garden v. Ingram , 8
but that case differed materially in principle. In that case a lease contained a covenant that the premises should be
insured in the names of the lessor and lessee, and that the moneys secured by the policy should be applied in
restoring the premises. The lessee mortgaged his lease but the mortgage contained no mention of the insurance,
though the lease was referred to in the recitals. The premises having been destroyed by fire, the mortgagee
restored them without waiting to get the money due on the policy; and on a claim filed by the mortgagee, the
mortgagor was decreed to deliver up the policy and join with the lessor in signing the receipt to the insurance office,
to enable the mortgagee to receive the money payable under the policy.
Lessor and lessee. —According to

Section 108(e) of the Transfer of Property Act , a lease of immoveable property is void at the option of
the lessee if a material part of the property is wholly destroyed or rendered substantially and permanently unfit for
the purposes for which it was let. As to the right to moneys received under the policy of fire insurance in the case of
Page 3 of 3
S. 49. (A)
a lease, reference may be made to notes under Section 108 (e).
Priority of mortgagee overrides a garnishee. —The mortgagee as transferee having a right conferred
by statute to the insurance moneys, his right cannot be displaced by a garnishee order even when made absolute, if
before actual payment his claim has crystallized. 9
Rent bona fide paid to holder under defective title.
96 Darrell v. Tibbitts,
(1880) 5 QBD 560 ; North British Mercantile Insurance Co. v. London Liverpool &
Globe Insurance Co ., (1876) 5 Ch. D. 569.
1 North of England Pure Oil-cake Co. v. Archangel Maritime Insurance Co ., LR 10 QB

249.
2 Ravner v. Preston , (1881) 18 Ch. D. 1.
3
(1883) 11 QBD 380 .
4 (1881) 18 Ch. D. 1.
5 Ganan Sundaram v. Vulcan Insurance Co. Ltd ., AIR 1931 Rang 210.
6 P.V. Chetty Firm v. Motor Union Insurance Co ., AIR 1923 Rang 6.
7 Lees v. Whiteley , (1866) 2 Eq. Cas. 143.
8 (1852) 23 LJ Ch. 478.
9 Sinnott v. Bowden , (1912) 2 Ch. 414; Evans v. Rival Granite Quarries Ltd.,
(1910) 2 KB 979 ; Cairney v. Back,
(1906) 2 KB 746 ; Norton v. Yates , (1906) 1 K.B. 112.
End of Document
Darashaw Vakil
S. 50.
No person shall be chargeable with any rents or profits of any immovable
property, which he has in good faith paid or delivered to any person of
whom he in good faith held such property, notwithstanding it may
afterwards appear that the person to whom such payment or delivery was
made had no right to receive such rents or profits.
Illustration
A lets a field to B at a rent of Rs. 50, and then transfers the field to C . B , having no notice
of the transfer, in good faith pays the rent to A . B is not chargeable with the rent so paid.
End of Document
S. 50. (A)
Darashaw Vakil
COMMENTS
Scope. —Rent is defined in Section 105 of this Act as "money share of crops, service or any other thing
of value to be rendered periodically or on specified occasion to the transferor by the transferee." Hence payment
before due date cannot be regarded as fulfilment of the obligation imposed by the covenant to pay rent. It is in fact a
loan by the tenant to the landlord under an implied condition that the landlord should continue entitled to the rent at
the time it became due, and able, therefore, then to give the tenant a valid discharge. 10 The rent must be paid as
rent. 11 B , having leased his land to the plaintiff at a rent payable quarterly, subsequently mortgaged the
land to the defendants who allowed B to remain in receipt of the rent. Subsequently to the mortgage, B applied to
the plaintiff, who was not aware of the mortgage, to pay him a year’s rent in advance, and the plaintiff did so. After
the payment, and before the rent had become due, the defendants gave notice to the plaintiff to pay the rent to
them, and the plaintiff refusing to pay it, the defendants distrained for it. Held that the payment was not good as
against the mortgagees, and that the plaintiff was still liable to pay them the rent. 12 In the absence of any express
agreement the mortgagor has no power to grant a lease of the mortgaged property so as to bind the mortgagee.
The lessee has a precarious title as the paramount title of the mortgagee may be asserted against both the lessee
and the mortgagor. 13 Any lease granted by the mortgagor after the mortgage is void as against the mortgagee. 14
A tenant under such a lease has no right as against the mortgagee to rent paid in advance to the mortgagor. 15 But
a mortgagee who does not take care to inquire of the lessee in possession cannot recover rents paid by the lessee
to the lessor in advance before execution of the mortgage. Similarly, payments made by tenants to a mortgagor
after a mortgage but before notice of it must in order to be valid against the mortgagee have been made in respect
of rent which was due at the time of payment or become due before notice of the mortgage. 16 Nor is the tenant
making such a payment relieved from his obligations to a transferee who purchases the property from the
transferor, 17 or at an auction. 18 It cannot, however, be said that a lessee from the mortgagor acquires no interest
whatever in the property demised to him. The true status of the lessee was indicated in the observation in Pope v.
Biggs , 19 that the mortgagor may be considered as acting in the nature of a bailiff or agent for the mortgagee.
Consequently, if the mortgagor after he has granted the mortgage deals with the property in the usual course of
management, the interest created by him may be rightly deemed operative against the mortgagee. An illustration of
this view will be found in the case of Moreland v. Richardson . 20 The same principle was recognized in Banee
Pershad v. Reet Bhunjan , 21 report of which is supplemented in the undermentioned case. 22
Payment of rent to the transferor landlord, taking him in good faith to be still the landlord, will not make the first
defendant liable to pay rent over again to the transferee landlord, be it under Section 50, the proviso to Section
109,or both. The legislature, enacting
Section 50 and
109 ,
T.P. Act , had exactly, in contemplation, a situation so that the innocent lessee may not suffer and the
unscrupulous one, not paying to either, under the cover of an assignment, may not escape.23
Page 2 of 5
S. 50. (A)
What Section 50 excuses is the payment of rent and profits of immovable property, which means that the rent or
profit should have become due. If before they become due, anything is paid in advance to the former landlord, it is a
simple loan to him and it cannot be taken as a discharge for rent becoming due after notice of transfer to the tenant.
24
Section 50 would only be applicable to a case where the tenant continues to pay rent to the lessor having no notice
of the transfer. 25 Where the tenant continues to pay rent to one of the two landlords brothers, even after allotment
of property on partition to one of the landlords who does not receive rent, the notice about the partition among the
three brothers is not given to the tenant by the landlords, the tenant is entitled to adjust the rent so paid to one of
the brothers in a suit for ejectment and recovery of arrears of rent. 26 Where a sub-tenant pays rent to his
immediate landlord with regard to a contractual subtenancy, it cannot be regarded as rent paid to the superior
landlord under the statutory tenancy. 27
Compensation or damages. —Against a person in wrongful possession the owner’s claim is not for
rent but for compensation or damages for wrongful possession or occupation. To such cases the section has no
application. 28
Form of suit : against landlord and tenant. —Under Order 1, Rule 3 of the
Code of Civil Procedure, 1908 , a suit for rent paid in advance may be framed against the tenant and the
landlord to whom the rent was paid in advance with an alternative prayer against the landlord if it should turn out
that the tenant had paid the rent in good faith to him.29
Assignment by lessor. —In order to invoke the aid of the section it is not necessary that there should
be a transfer or an assignment by the lessor during the tenancy. The section is not in terms limited to such cases
and its language is general. These were the observations made in a case 30 where L mortgaged with possession
certain property to S who on the same day let out the property to L for 12 years. S died and his interest as
mortgagee survived to his undivided brother R who died in 1901. Thereafter possession and management of the
property was with S’s widow G , the sister and heir of S and R , brought a suit against the tenant for the recovery of
the rent for the years 1902 and 1903 received by G . It was held that the tenant was not liable for the rent sued as
he acted in good faith and had no notice of the plaintiff’s interest in the property.
Double good faith. —To enable the tenant to claim protection under the section, he must (1) in good
faith have paid or delivered the rent to any person, (2) of whom he in good faith held such property. 31 So that when
a tenant knew that there were disputes between two rival claimants to the title of landlord, chose one of them and
paid rent to him, he was held not protected under the section. 32 Where the tenant even having knowledge about the
transfer the land pays rent to the erstwhile landlord, the act of the tenant is not bona fide and he is not immuned
from ejectment. 33 Where one of the two lessees knows as to who is the real owner of the property, the knowledge
thereof is presumed to other lessee and if the latter makes pays rent to a person who is not the real owner, Section
50 cannot be invoked. 34
Reason to believe. —
Section 109 of the Transfer of Property Act, 1882 , whilst dealing with the rights of lessors’ transferee,
provides that if the lessee not having reason to believe that such transfer has been made, pays rent to the lessor,
Page 3 of 5
S. 50. (A)
the lessee shall not be liable to pay such rent over again to the transferee.
Notice. —Notice of assignment is fatal to the tenant. It is immaterial whether he receives it from the
transferor or the transferee. 35
Rent paid under compulsion of law. —In such a case the tenant is protected. A mortgagor
subsequent to his mortgage let the mortgaged premises. Whilst the next quarter was running the mortgagees gave
notice requiring the tenant to pay the rent then and thereafter to accrue due to themselves. After this notice a
receivership order was made and served on the tenant at the instance of a creditor who had recovered judgment,
"without prejudice to the rights of prior encumbrancers." The tenant having failed to make the payment the
mortgagees threatened him with legal proceedings and he paid. The receiver claimed payment of the rent over
again. It was held that the tenant having paid under compulsion of law and in consequence of his lessor’s default,
could set up such payment in answer to the claim for the rent by the receiver who claimed through his lessor. 36
Joint discharge. —A payment to one of three persons jointly entitled to receive the money is not good
as against the other two. 37
Improvements made by bona fide holders under defective titles.
10 De Nicholls v. Saunders,
(1870) 5 CP 589 ; Katha Bhatt v. Chotey Lal , AIR
1960 Raj 19 (20); Rameshwar Lal v. Butte Kriste Rai ,
AIR 1934 Pat 653 ; Pale Zabaing Rural Co-operative v. Maung Ther Daw , AIR
1931 Rang 292.
11 Tiloke Chand v. Beattie & Co. ,

AIR 1926 Cal 204 .
12 De Nicholls v. Saunders , (1870) 5 C.P. 589.
13 Macleod v. Kissan , (1906) 30 Bom 250 ; Rustomji v. Keshavji ,

(1926) 28 Bom LR 1162 ; Tiloke Chand v. Beattie ,
AIR 1926 Cal 204 ; Girdhar Lal v. Liladhar ,
(1931) 29 Bom LR 1123 .
14 Pope v. Biggs , (1829) 9 B. & C. 245 : 109 ER 91.

Page 4 of 5
S. 50. (A)
15 Rustomji v. Keshavji ,
(1926) 28 Bom LR 1162 ; Tiloke Chand v. Beattie & Co. ,
AIR 1926 Cal 204 .
16 Kiran Chandra v. Dutt & Co. ,

AIR 1925 Cal 251 ; Cook v. Guena , (1872) 77 C.P. 132.
17 P.Z.R. Co-operative Society v. Maung Thu , AIR 1931 Rang 292 ; Ramlal v. Marwari ,
AIR 1922 Pat 339 .
18 Official Assignee v. Abdul Hussain , AIR 1928 Sind 95.
19 (1829) 9 B. & C. 245 (248) : 109 ER 91.
20 (1857) 24 Beav. 33 : 53 ER 269.
21
(1868) 10 WR 325 .
22 Madan Mohan Singh v. Raj Kishori, (1913) 17 CLJ 384.
23 Binani Properties Pvt. Ltd v. M. Gulamali Abdul Hossain & Co .,

AIR 1967 Cal 390 .
24 Katha Bhatt Nand Kumar v. Chote Lal , AIR

1960 Raj 19 (20) :
ILR 1959 (9) Raj 190 :
1959 Raj LW 80 .
25 Raghubar v. Ist Addl. District Judge, Mathura , 1989 All LJ 279 (282) (All); Benami
Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co .,
AIR 1967 Cal 50 [
26 Anisur Rehman v. Sukhdeo Prasad ,

AIR 1984 Pat 245 (248).
27 Narendra Krishna Bose v. Great Eastern Hotel Ltd. ,

AIR 1951 Cal 394 : 86 CLJ 72 (Cal).
28 Girdharlal v. Liladhar ,
(1931) 33 Bom LR 1123 .
29 Madan Mohun v. Holloway ,

(1886) 12 Cal 555 .
Page 5 of 5
S. 50. (A)
30 Kaveriamma v. Lingappa , (1909) 33 Bom 96.
31 Kaveriamma v. Lingappa , (1909) 33 Bom 96 ; Peary Lal v. Madhoji, (1913) 17 CLJ 372.
32 Gambhirya v. Sakharam ,
AIR 1927 Nag 237 .
33 Rajpal Singh v. Devendra Kumar ,

2003 AIHC 187 (194, 195) : 2002 All LJ 2400.
34 Mohammad Azim v. Maharaja Pateswari Prasad Singh ,

AIR 1943 Oudh 105 : 1942 OWN 613 : 203 IC 361.
35 Nobin Chandra v. Surendra Nath ,

(1902) 7 CWN 454 ; Peary Lal v. Madhoji, (1913) 17 CLJ 372.
36 Underhay v. Read,
(1888) 20 QBD 209 ; Johnson v. Jones , (1839) 9 A. & E. 809 : 112 ER 1421.
37 Peary Lal v. Madhoji, (1913) 17 CLJ 372 ; Harihar v. Bholi, (1907) 6 CLJ 383 ; Husainara
v. Rahaman Nessa, (1910) 13 CLJ 3.
End of Document
Darashaw Vakil
S. 51.
When the transferee of immovable property makes any improvement on the
property, believing in good faith that he is absolutely entitled thereto, and he
subsequently evicted therefrom by any person having a better title, the
transferee has a right to require the person causing the eviction either to
have the value of the improvement estimated and paid or secured to the
transferee, or to sell his interest in the property to the transferee at the then
market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the
estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on
the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress
and egress to gather and carry them.
End of Document
S. 51. (A)
Darashaw Vakil
COMMENTS
Scope and application. —This section deals with the rights and obligations as to improvements
between a holder under a defective title and one having a better title. It provides for compensation by the latter to
the former provided that the holder under a defective title has made the improvements on the property in the honest
belief that he is absolutely entitled thereto. In such circumstances the holder under a defective title has alternative
rights against the person having a better title and demanding his eviction, to elect to do one of three things :—
(a) Either to pay him the estimated value of the improvement at the time of eviction, or
(b) To secure to him the estimated value of the improvement at the time of eviction, or
(c) To sell his (holder of the better title) interest to the holder of the defective title at the then market value
thereof exclusive of the improvements.
The ingredients for application of this section are that the defendant has purchased or otherwise
acquired the property from a source other than the plaintiff and answers the description of "transferee,"
he faces eviction from the plaintiff who is found to have "better title to the property" and the defendant
made improvements or construction on the said property under a bona fide belief that he has title to the
property. Once these facts are established, the defendants get rights to require the plaintiff to elect
either to have the value of the construction or improvement fixed and paid or secured : or to offer to sell
the land to the defendants, at the then market value. 38
Section 51 of the T.P. Act operates only as long as it is evident that the plaintiff did not
do anything to encourage or give an impression to the defendant that he (plaintiff) has no objection for
the improvement or construction by the defendant. Once such a representation, to a standardized
degree emanate from the plaintiff, the provisions of this cease to operate and Section
section 115 of the Indian Evidence Act, 1872 steps in wherein the plaintiff would be
estopped.39
Section 51 does not apply to transfer made in execution of a decree. 40 A person claiming tenancy
rights in land is not entitled to invoke Section 51. 41 In State of Travancore- Cochin, a tenant unless
prohibited by the terms of the lease is entitled to the value of the improvement made by him, he is also
entitled to retain possession of the premises till the value of the improvement is paid to him. 42 Where
the
T.P. Act is not in force, Section 51 being in consonance with principles of justice,
equity and good conscience, the principle underlying the section would apply.43
Persons who come into possession of the land belonging to another and make improvement thereon
on the bona fide belief that they are entitled to make such improvements are entitled to claim
Page 2 of 30
S. 51. (A)
compensation for the improvements made by them. 44 It is incumbent upon the transferee claiming
benefit of Section 51, to prove that he is transferee and further he has made improvements in good
faith. 45 Good faith under Section 51 only means honest belief in the validity of the transferor’s title. 46
Where a person has no title to the land but raises constructions on it, the rightful owner of the land
cannot be compelled to take it subject to payment of compensation for the improvements made. 47
For granting the relief of compensation for improvement under Section 51 not only there should be
pleadings but also evidence showing the value of the improvements made. 48
The principle underlying

Section 51, T.P. Act is based on the doctrine of equity and, therefore, the maxim he
who seeks equity must do equity would apply. Even after the prerequisites for the enforcement of
equity enacted in
Section 51 T.P. Act are satisfied, right to election for one of the two alternatives
provided in that section would still rest with the person evicting. He may either pay the value of the
improvements and take the land or sell out his interest in the land to the transferee at the then market
value of the property, irrespective of the value of such improvement.49 The key note of Section 51 is
good faith. 50 In appropriate cases the Court would grant benefit under Section 51 even in cases
covered by Section 52, where all the conditions under Section 51 are satisfied. 51
Where a Hindu widow has transferred house and the transferee despite notice by the reversioner that
he is entitled to the house as a reversioner, makes improvement, the element of good faith dissipates.
52
The
Transfer of Property Act had been enacted for the purpose of amending the law
relating to Transfer of Property by act of the party.53
Section 51 of the Transfer of Property Act applies to inter vivos transfers. It does not
apply to a transfer made by operation of law. 54 If a judicial order is passed restoring the land back to a
member of Schedule Tribes in terms of the purport and object of the statute, the provisions of the
Transfer of Property Act cannot be applied in such a case. The matter is governed by
a special statute. Unless there exists a provision therein, an order passed thereunder cannot be
supplanted or supplemented with reference to another statute.55
Section 51 gives an option to the person having better title, either to pay the value of the improvements
or to sell his interest in the subsequent purchaser. The choice is that of the evictor. 56 Further, he is
required to sell his interest in the property to the subsequent purchaser at the then market value. 57
Where a party has acquired a substantial right under an erroneous decree, amendment of the said
decree is not permissible. 58
Not opposed to Mahomedan Law. —The rule of equity embodied in this section is
not opposed to any principle of Mahomedan Law and
Section 2 of the Transfer of Property Act , IV of 1882, does not preclude its application
in cases declined under the Mahomedan Law.59
Compensation for improvements on equitable grounds. —Where the appellants

have been in possession of the properties ever since 1934 and have been enjoying the income
therefrom and had also effected the improvements to the property, the Supreme Court on equitable
grounds directed the respondent to pay compensation for improvements made by the appellants. 60
The rule in the section was extended by the Privy Council to the Punjab where the Act was not in force.
The respondent on the death of a Hindu widow brought a suit as next heir of the husband to set aside
the alienation made by the widow in favour of the appellant, who resisted the respondent’s claim, and
Page 3 of 30
S. 51. (A)
in the alternative claiming the value of the improvements made by him to the property while in
possession which included a temple (Rs. 2,700), a well (Rs. 300), an upper storey to the house (Rs.
2,500), and repairs to the house (Rs. 1,500). In setting aside the alienation, one of the questions which
arose for determination in the appeal was the amount of allowances to be made as a condition of the
respondent taking possession of the house and the compound, and on the issue to what extent had
enhancement of the subject been produced, their Lordships agreed with the Chief Court in thinking that
it had been produced to the extent of Rs. 1,400. No compensation was allowed for erection of the
temple as it was doubtful whether the property as a marketable subject was enhanced in value
thereby. 61 The same principle applied even before the passing of the
The
Transfer of Property Act is not exhaustive and does not exclude any equitable
principle such as may regulate the rights and liabilities of the parties in a case not specifically provided
by the Legislature. Abona fide purchaser of a house for value without notice of an existing simple
mortgage and honestly believing in good faith that she was absolutely entitled to the house improved
and re-built it at a considerable cost. On a suit by the mortgagee for sale of the house, held, that
although Section 51 did not in terms apply, yet the rule of equity upon which that section was based
might very well be extended to the case and upon that basis the Court was justified in ordering the
plaintiff to pay the costs of the improvement as a condition precedent to bring the mortgaged property
to sale. 63 In this case Section 51 in terms did not apply, because the transferee was not a person
evicted and the plaintiff as prior simple mortgagee was not a person having a better title.
The Mesne Profits and Improvements Act, XI of 1885. —This Act has been
enacted to secure to bona fide holders under defective titles the value of improvements made by them
in cases to which the English Law is applicable. Except for this difference, Section 2 of this Act is
similar to
Section 51 of the Transfer of Property Act . It is applicable to holders under defective
title having abona fide belief that they have an estate in fee simple or other absolute estate. These
words do not occur in
Section 51 of the Transfer of Property Act , which, however, must be construed in the
same way. Another difference between the two sections is that the right in Section 2 is given to the
person having a defective title "his heirs or assigns" which words do not occur in Section 51.
Transferee. — Section 51 speaks of transferee. The transferee must be transferee

within the meaning of Section 5 of the Act. A person purchasing immovable property worth more than
Rs.100/- through oral agreement is not a transferee and is not entitled to benefit of Section 51. 64
Where one of allottees of the Government land affects improvements on the land allotted to another
allottee, he is not a transferee within the meaning of Section 51 and is not entitled to claim
compensation for improvements under Section 51. 65 A person claiming benefit under Section 51 must
be transferee. A person taking land under an unregistered lease deed is not entitled to compensation
for the improvements made by him on the demised property. 66
A transferee of mortgaged property, who is found not to be a bona fide purchaser, is not entitled to
claim compensation for the improvements made by him. 67
Claims for improvements by representative-in-interest of first transferee. —The

principle underlying
Section 51 of the Transfer of Property Act is that a man should not enrich himself at
the instance of another and this principle cannot be rendered inapplicable merely because a transferee
is succeeded by another. In Narayanaswami v. Rama Ayyar 68 their Lordships of the
Privy Council have held that the heirs of the transferee are entitled to claim compensation if they are
evicted at the instance of the true owner. 69
"Absolutely entitled". —The transferee who makes improvements must believe in

good faith that he is the absolute owner of the property. Hence the section is inapplicable to those
cases where the ownership falls short of being absolute and a limited owner cannot claim
Page 4 of 30
S. 51. (A)
compensation for improvements made by him under this section. It has been observed that Section 51
is based upon the principle "He who seeks equity must do equity". 70
Bona fide belief regarding entitlement to effect improvements is the criterion in all the
cases. The man who spends money on improving property knowing fully well that he has no title to it
can be permitted to deprive the real owner of his right to possession except on payment for
improvements which were not effected with his consent. Good faith is the condition precedent. This
depends upon due care and attention. 71
A lessee is not an absolute owner because a tenant could not possibly believe in good faith that he
was absolutely entitled to the land. 72 Therefore, for improvements made a lessee cannot claim
compensation from the true owner on eviction. 73 The main principle of the section is that a person
must show that he believed that he was entitled to the land in such a way that he is not to be disturbed,
whether it is a sale or perpetual lease he claims under. 74 The section is not restricted in its application
to transferee for value and volunteers are included.
A lessee is not entitled to the benefits of

Section 51 of T.P. Act . However, the doctrine of equitable estoppel (or the rule in
Ramsden v. Dyson ,
(1865-1866) 1 HL 129 ) is not excluded by Section 51. 75
What Section 51 requires is that the improvements must have been made by a transferee who believes
in good faith that he is absolutely entitled thereto. 76 Where the property belonging to the Wakf Board
had been purchased by the defendant, and the defendant in good faith had made improvements in the
property, in suit for the recovery of the possession filed by the plaintiff Wakf Board, the defendant was
held entitled to recover the value of the improvements made by him. 77
Where a trustee raises construction on the trust property, not treating the property as his own, sets-up
adverse title, he is not entitled to recover the expenses incurred by him on the improvements made by
him. 78
Improvements made by a trespasser. — Section 51 applies in terms to a transferee

who makes improvements in good faith believing himself to be an absolute owner of the property.
Where the transferee has no reason to believe that he was the absolute owner of the property,
constructions made by him cannot be said to have been done in good faith. He is not entitled to any
value of the improvements made by him either under
Section 51 of the T.P. Act or on the principle of justice, equity and good conscious.79
In the absence of evidence to show that the plaintiff himself encouraged the trespasser to make
constructions on the land and to make improvements thereon, a trespasser cannot save his eviction. 80
Improvements made by trespassers on Government land. —The position of a

trespasser is that of a mere tenant. A trespasser is not entitled to the value of the improvements made
by him on Government land. 81
Improvements made by agreement holder. —Where the defendants, who had an

oral agreement for sale in their favour, were alleged to have made improvements, the defendants
though in possession of the property since 1975, never tried to enforce the said oral agreement,
admittedly did not pay a paisa to the original owner of the land despite enjoying the usufructs of the
property. Held, the defendants were not entitled to any relief under Sections 51 and 53A, however,
were entitled to all the improvements in the suit property made by them. 82
Person knowing that he has no title in property making improvements. —No

man who, knowing fully well that he has no title to property, spends money on improving it can be
permitted to deprive the original owner of his right to possession of the property except upon the
Page 5 of 30
S. 51. (A)
payment for the improvements which were not effected with the consent of that person. 83 Where a
person knows that he has no title to the property yet effects improvement in the property, he is not
entitled to recover the money spent by him in making improvements from the owner of the property. 84
Where the person making demand is aware that he has no title to the property as he has purchased it
from the vendor who is only mortgagee having no title in himself to convey to the vendee, he cannot
demand payment for the improvements alleged to be have been made by him. 85
Limitation of interest. —This section does not protect transferees with limited
interest, for example, as between landlord and tenant, mortgagor and mortgagee, transferee from a
Hindu widow or other limited owner.
Alienee from a Hindu widow. —An alienee from a Hindu widow cannot be said to be
a person believing in good faith that he is absolutely entitled to the property so as to bring himself
within Section 51. The Privy Council affirmed the decision of the Chief Court of the Punjab which
allowed compensation to an alienee from a Hindu widow to the extent of Rs. 1,400 which represented
half the expenditure made by the appellant on a well and upper storey of the house which had
enhanced the market value of the property. The
Transfer of Property Act is not applicable to the Punjab but the general principles
were applied.86 This decision was referred to by the Bombay High Court in allowing costs of
improvements to an alienee from a Hindu widow who remained in undisturbed possession for 16 years
and the eviction showed that the property was in a tumble down and uninhabitable condition. 87 In a
redemption suit a mortgagee was allowed against his mortgagor reasonable and proper costs incurred
in making lasting improvements. 88 The decisions of both the Madras and Allahabad High Courts have
been that alienees were disentitled to compensation because they had not made proper inquiries as to
the power of the widow herself to alienate and consequently it was there held that they were not acting
in good faith. 89
A Hindu died leaving two widows who divided the property of their husband between themselves for
the sake of convenience. One of the widows sold the house which had fallen to her share. She then
died and her co-widow sued to recover possession of the house. Held that the purchaser was not
entitled to refund of money spent on improvements, 90 nor was a transferee from a Hindu widow in a
suit by the reversioner to set aside the transfer so entitled. 91 The onus is on the alienee to prove the
existence of circumstances justifying sale by a limited owner. 92 But a gift by a Hindu widow is good
against all the world until the reversion falls in, and even then it is liable to be questioned by the actual
reversioners. Only when so questioned, if the attack is successful the interest terminates. 93 The Privy
Council affirmed the above decree of the High Court giving the transferee who had effected
improvements, believing in good faith that he was owner, the alternative rights mentioned in the section
and in respect of improvements effected at a later date at which he had not proved that he so believed,
liberty to remove the materials subject to conditions. 94
Improvements on joint land by co-owner. —When a co-owner makes improvement

in joint land he would have a reasonable right, on partition to reap the advantage of what he has
expanded upon improvements. (Principles stated). 95
Where a person has expended money upon a joint property and a time comes to partition it, it is
reasonable and right to endeavour to give him such an advantage of what he has expended upon
improvements. It is not the prima facie right of such a co-owner expending money to improve the whole
or a greater portion of the joint land to have in one way or another recouped to him by his co-owners
the value of the improvements which they get in the shares which are allotted to them. In a case where
the improvements have been made by a co-owner at his own will—though not improperly—the Court
will not endeavour to make sure that the owner, who has improved the property, will get every penny to
himself of the advantage which his money has created. If one joint owner covers the whole of the
common property with valuable improvements so that it is impossible for his co-owner to obtain his
share of the property without including a part of the improvements, he would not be entitled to
compensation. 96
Page 6 of 30
S. 51. (A)
Lessees. — Section 51 is not applicable to lessees. 97 Section 51 relates to

improvements made by bona fide holders under defective title. A lessees’ rights are only those
provided under Section 108 unless there is a contract or a local usage to the contrary. 1 A lessee
cannot pretend that he believed in good faith that he had a permanent right to the property, and if he
erects on the land let to him a building, he cannot claim compensation for it on eviction by the landlord.
Such a claim to compensation is impliedly negatived by his right to remove such buildings—a right not
only established by judicial decisions but also enacted by the Legislature in clauses (h) and (p) of
Section 108 of the Transfer of Property Act , IV of 1882,2 nor is the rule different
merely because he acted under a mistaken belief shared by his landlord that he had a larger interest (a
lease of 999 years) than he really had (one from year to year). 3 But permanent leases have received
a more liberal judicial interpretation. In such cases there would be a tendency to lead to a breach of
contract and would be little short of direct fraud on the part of the landlord if he were allowed to evict
the tenant without compensation. 4 In case of debutter lands trustees are not competent to grant
permanent leases and a transferee from a tenant who bona fide believed himself to be entitled to
occupancy rights is not entitled to compensation for improvements on ejectment by the landlord, 5 but
a tenant will be entitled to compensation for buildings on eviction if he proves that the landlord
encouraged him to erect permanent buildings, 6 for under Section 108 (p) of this Act he is restricted
from erecting permanent structures on the property leased and if he does so his remedy is under
Section 108 (h) of the Act. Although Section 51 does not in terms apply between a landlord and a
tenant, compensation has been allowed on the principles contained therein to persons who entered
into possession on an agreement that they would be given a permanent lease. 7
Where the terms of the lease expressly provides for delivery of vacant possession of the land on the
expiry of the lease period, the mere fact that one of the co-owners made constructions on the land and
the another co-owner did not object to the construction for the period over 4 years did not deprive the
right of the co-owner to the partition of the land by metes and bounds. 8 The plea that the
compensation could be awarded to the coowner seeking partition was held not tenable. 9
A lessee is not entitled to the benefits of

Section 51 of T.P. Act . However the doctrine of equitable estoppel (or the rule in
Ramsden v. Dyson ,
(1865-1866) 1 HL 129 ) is not excluded by Section 51. 10 As a
lessee can never believe in good faith that he is absolutely entitled to the leasehold property, he cannot
invoke the aid of Section 51 for claiming compensation for the improvements made by him on the
lease-hold property. He is entitled only to remove the structures and materials. 11
Agricultural lease. —The principle of Section 51 does apply to an agricultural lease.

12
Mortgagee. —A mortgage confers no authority on a mortgagee to rebuild the

property so as to bind the mortgagor against his will. A Hindu widow inherited a shop from her son and
mortgaged it without any legal necessity. The property was then destroyed by floods and the
mortgagees rebuilt it with their own money. In a suit by the reversioner for possession of the property
free from all encumbrances, it was held that no equity arose in their favour as against the reversioner
who was entitled to recover it in a condition in which it was when the widow died. 13 A mortgagee
cannot be said to be a person believing in good faith that he is absolutely entitled to the property within
the meaning of the section. But the decisions on this subject are conflicting. The rights of a mortgagee
in possession making improvements to the mortgaged property are now governed by
Section 63A of the Transfer of Property Act , IV of 1882. A mortgagee in possession
can claim for items which would fall within Section 72 of that Act but not items which would amount to
an addition or improvement to the mortgaged property.14
A certificated guardian of a minor executed, without permission of the Judge, a usufructuary mortgage
of the minor’s property. New constructions were made at a cost several times the value of the original
property. The minor on attaining majority, had the mortgage declared void, and sought to recover
possession. It was held that the principle underlying Section 51 could not be extended to the case of a
Page 7 of 30
S. 51. (A)
mortgagee. 15 In a redemption suit the claim of a purchaser from the assignees of the original
mortgagee for improvements was disallowed on the ground that from the terms of his conveyance he
could not have believed that he was absolutely entitled to the property and that he had a perfect title. 16
But a mortgagee in possession who has brought the land to sale in execution of his decree cannot
recover from the execution purchaser the value of the standing crops. There the right to standing crops
was not expressly reserved at the sale or by the sale notice and the ordinary rule that the right to
growing crops will pass by sale of land without express mention, applied. 17
As regards a mortgagee by conditional sale he cannot acquire a title to the property without going
through certain formalities. If, therefore, he assumes, on the expiry of the term of the mortgage, that he
has become the absolute owner of the property, it cannot be said that he believed in good faith that he
was absolutely entitled to the property within Section 51. 18 In a combination of simple and
usufructuary mortgage a condition converting the mortgage into a sale in the event of the loan not
being repaid by a fixed date is a clog on the equity of redemption and improvements effected by a
mortgagee honestly believing that he was entitled to the property should be compensated on eviction.
19
Reliance was placed on the section on behalf of a mortgagee where the right of a mortgagor of a
certain immoveable property was vested in three brothers, members of a joint Hindu family, of whom
two passed an agreement to sell the entire property to the mortgagee who was in possession as
mortgagee. The third brother who was not a party to the agreement sued to redeem the entire
mortgage. It was held that the mortrgagee’s claim for improvements failed for he had notice of the
existence of the third co-sharer so that it could not be said that he believed in good faith to be entitled
to the whole. 20 But when a mortgagee was misled by an order of the Court into believing that he was
absolute owner, relief was granted. 21 A mortgagor in possession was held to have no attachable
interest in the crops cut and stored by his tenants upon a sale by the mortgagee through the Court
after efflux of time allowed to redeem, on the ground that his position was that of a person acquainted
with the imperfection of his title. This was before the
Transfer of Property Act was passed.22 The option rests with the mortgagor as to
whether he will pay the value of the improvements or sell his interest to the transferee. 23 This view
was the one adopted by the majority of the Full Bench in Ramanathan v. Ranganathan . 24
Good faith". —In order to claim compensation for improvements made on the
property of a holder under a defective title it is necessary for him to prove that he believed in good faith
that he was absolutely entitled thereto. 25 The expression "in good faith" is not defined in the Act, but it
appears to be used merely as an equivalent for "honesty." The definition of the term in the
General Clauses Act, 1897 , is no innovation, but merely follows the wording in the
Bills of Exchange Act, 1882 (45 and 46 Vict., c. 61, Sec tion 90), and the
Sale of Goods Act , 1893 (56 and 57 Vict., c. 71, Sec tion 62). Under the
General Clauses Act, Section 3 , clause 20, "a thing shall be deemed to be done in
‘good faith’ where it is in fact done honestly, whether it is done negligently or not." According to the
said section, however, this definition applies only to Acts made after the commencement of the
General Clauses Act , X of 1897. The Transfer of PropertyAct being an Act of prior
date, this definition would not strictly apply, but its principle are nevertheless applicable. This question
of good faith is a somewhat difficult question, and what constitutes good faith is a question of fact and
must depend upon circumstances of each case. A person may act in good faith though he acts under a
mistake of law.26 It is not incompatible with ignorance of law, 27 nor is it incompatible with a certain
degree of negligence which is a matter to be determined according to the circumstance of each case.
28 A belief generally implies good faith. Acting honourably and fairly is not enough. There must be due
inquiry, and so where a man consciously avoids inquiry he may still have a belief but it would not be in
good faith. 29 Where the auction proceedings were shown collusive, outcome of fraud and
manipulation and the sale deeds were void the transferees were held not entitled to be paid the
costs/value of the improvements made by them. 30
The words "believing in good faith that he is absolutely entitled thereto" mean a justified belief of
having the full proprietary right. Cases of frequent occurrence are those of transfers from Hindu
widows. A person who takes what purports to be a permanent lease from a Hindu widow and makes
improvements on the property, is not entitled to compensation for those improvements, when on the
Page 8 of 30
S. 51. (A)
death of the widow he is evicted by the reversioner. The transfer having been made by a Hindu widow,
the section has no application. A person dealing with her would ordinarily know that she has only a
lifeinterest and he can reasonably be expected to make inquiries as to the legal necessity for the
widow to make a transfer. 31
Good faith within the meaning of the section is not necessarily precluded by facts shewing negligence
in investigating the title. In fact, to hold that every default in investigating the title ipso facto makes
Section 51 inapplicable would be to exclude a very large class of cases from a rule which is based on
obvious considerations of justice; but where a purchaser knows or must be presumed to know, which is
the same thing, that under Hindu Law, the vendor could sell only under certain circumstances and he
either knows that such circumstances do not exist or wilfully abstains from making any inquiries on the
subject, the mere fact that he purchased for consideration will not suffice to shew good faith and he will
not be entitled to claim compensation for improvements effected by him 32 even though the reversioner
consented. 33 Nor can a trespasser 34 nor an assignee from him 35 be said to have an honest belief in
his title as absolute owner. But a purchaser either from a Mahomedan mother acting as de facto
guardian for her minor son 36 or from a separated uncle acting on behalf of a minor nephew 37 is a
transferee who believes in good faith that he is absolutely entitled to the property. So where a grantee
of land under the order of the tahsildar (the original grant and registry by whom is only conditional) 38
paid the assessment and effected improvements in ignorance of an adverse order in appeal, was
considered to be a bona fide holder within the meaning of the section. 39 As also an alienee whose
alienation had not been questioned for 30 years. 40 But a person in wrongful possession cannot claim
benefit of the section. 41 Where the auction proceedings are collusive and sham, a purchaser in the
proceedings under a defective title cannot be said to be a bona fide purchaser, he would not be entitled
to the compensation for the improvements made by him upon the property. 42
It is the duty of the subsequent purchaser to make a reasonable enquiry. If there is no reasonable
enquiry made by the subsequent purchaser, he cannot be held to be a bona fide purchaser for
valuable consideration to attract the provisions of
In 1906 a Hindu widow sold property belonging to her husband; and in 1910 adopted a son who was a
major. The property having been in a tumble-down and uninhabitable condition, the purchasers spent,
in 1918, a sum of Rs. 4,000 in rebuilding the main doors and walls, and building two new rooms and a
portion of the kitchen. The adopted son having sued in 1922 to avoid the sale, the purchasers claimed
Rs. 4,000 for improvements. Held, that the purchasers having in 1918 believed in good faith that they
were absolutely entitled to the property, had satisfied and brought themselves within
Section 51 of the Transfer of Property Act, 1882 , and were entitled to claim Rs. 4,000
for improvements.44 A right to claim compensation under such circumstances was recognized in this
country prior to the passing of the
Section 51 applies only when the person makes improvement on property believing in good faith that
he is absolutely entitled to it. As such Section 51 has no application to the case where the relationship
of landlord and tenant comes into existence by payment of rent. The lessees however, upon eviction
would be entitled to remove their structures and material under Section 108 (h). 46
Where the respondent makes unauthorised constructions on the land owned by the appellant despite
latter’s objection, Section 51 would not apply, the appellant cannot be compelled to accept
compensation, her suit for actual physical possession of the land would be decreed. 47
A purchaser, believing that he had obtained a good title, rebuilt the house which was in a state of ruin
and subsequently it was found that he could make out a title only to a share as the house was joint
family property, was awarded compensation for improvements made subject to a set-off for his use and
occupation of the shares of the other cotenants. 48 Defendant 1 to 3 purchased the property in dispute
from defendant No. 4 vide registered sale deed dated 9.6.1971 and the suit was filed on 8.5.1979. The
plaintiff had become owner of 2/3rd share of the taur in dispute. The plaintiff kept silent from 9.6.1971
till the filing of the suit in the year 1979, thereby creating bona fide belief in defendants 1 to 3 that they
Page 9 of 30
S. 51. (A)
were absolutely entitled to the property in dispute. On 9.6.1971 K , a vendor had a valid title to pass on
to defendants 1 to 3 and the plaintiff had not yet become owner of the property in dispute by efflux of
time. On 9.6.1971, defendants 1 to 3 bona fide believed that they were absolutely entitled to the
property in dispute. There was no evidence on record to show that defendants 1 to 3 were aware of the
mortgage rights of the plaintiff in the property in dispute. The improvement made by defendants 1 to 3
could not be said to have become the property of the plaintiff because defendants 1 to 3 were not
trespassers to acquire title from the previous owner, defendant No. 4. Therefore, defendants 1 to 3 had
a right to ask the plaintiff either to pay them the amount of the improvements or to sell the 1/3rd of the
plot in dispute to them. 49 Plaintiff and defendant by an unregistered deed exchanged lands and the
latter erected buildings; the plaintiff lay by and acquiesced. Defendant was given compensation
consequent on a decree for possession against him. 50
The words "believing in good faith that he is absolutely entitled thereto" are the important words in the
Section and generally the mortgages in possession, lessees and other persons not having an absolute
title are not entitled to claim the benefit of the Section. The maxim which is found in English law,
namely quicquid plantatur solo, solo cedit (whatever is affixed to the soil belongs to the soil) does not
apply to India. 51 Where an alienee from an alienor having life interest in the property only, with
knowledge thereof makes improvement on the property, he cannot be said to be a transferee believing
in good faith that he is absolutely entitled to the property and cannot claim value of improvements
made by him. 52
Who is not a transferee within the section. —The following are not entitled to the
benefit of this section :—
(d) A son governed by the Dayabhaga Law who has made improvements and substantial additions to
ancestral buildings standing on ancestral lands belonging to his father, the plaintiff. 53
(e) Transferee with limited interest as a lessee or mortgagee.
(f) A person having notice that the property on which he had made improvements was alleged to be wakf , 54
or was subject to a puisne mortgage, he being purchaser at a sale in execution of a decree on a prior
hypothecation bond 55 , has no title to the property. 56
(g) A purchaser from a Hindu widow when there was no legal necessity for the sale. 57 A mortgagee from a
Hindu widow is not a transferee in good faith. 58
(h) A trespasser or an assignee from him cannot be said to have an honest belief that he was absolute owner
so as to entitle him to claim improvements made. 59 Compensation in such a case is to allow a trespasser
to purchase another man’s property against his will. Injunction, not damages, is the owner’s proper
remedy. 60 A trespasser is not entitled to retain possession or to compel the owner to receive
compensation for the land. 61
(i) A stranger who builds on another’s land, believing it to be his own, is in the absence of estoppel or
acquiscence on the part of the true owner bound to remove his building. 62
(j) A subsequent purchaser with notice of a prior contract is not entitled to compensation for improvements
made, for the position of such a purchaser is not better than of the vendor himself, for it is clear that if he
the latter make permanent improvements the purchaser is entitled to the benefit thereof without further
payment. 63
(k) A transferee after commencement of litigation in which the title is agitated. 64
(l) A donee from a Hindu widow with limited interest. 65
(10) A transferee from a tenant who bona fide believed himself to be entitled to occupancy rights therein is not
entitled to compensation for improvement on ejectment by the landlord. 66
Page 10 of 30
S. 51. (A)
(11) An auction purchaser at a sale held under the first mortgagee’s decree to which the subsequent mortgagee
was not a party. 67
Transferor as evictor. —The section is not restricted in its application to cases

where the transferor is not the evictor. Hence a transferee from a separated uncle of a Hindu minor
who has never intermeddled or acted as guardian and who has made improvements on the property,
believing in good faith that he is absolutely entitled thereto, is entitled to the benefit of the section. 68
So also a purchaser from a Mahomedan mother purporting to act as a de facto guardian of her minor
son. 69
Option. —Under the section the right to make election is with the person having the
better title. 70 But where a Hindu father both on his account and as guardian of his son executed a sale
of the joint family property and the transferee spent a considerable amount for the improvement and
the plaintiff circumstances were too poor to permit of any purchase by him of the improved property,
the Court without giving an option to the plaintiff to recover the property by payment of compensation,
required the plaintiff to sell his interest in the property to the transferee. 71 This does not seem to be a
correct view of the section.
"Then". —This word occurring in paragraph 1 of the section means at the time of
eviction.
Lien. —The section confers no lien in favour of the transferee for value of
improvements made on immoveable property. There can be no lien which is peculiar to moveables. 72
Amount how and when fixed. —The amount to be paid for compensation for
improvement is to be fixed at the time of eviction, or dispossession and not on the date of alienation of
property. 73 In the event of the person having a better title desiring to retain the property for himself, he
must pay to or secure the person having a defective title the estimated value of the improvements,
while if he desires to sell his interest to the transferee the latter must pay the then market value thereof
irrespective of the value of such improvement.
Where the vendees had made constructions worth Rs. 5 lacs to Rs. 6 lacs on the land transferred, in
the circumstances of the case it was found inequitable to direct the transferee to pay the present
market value of the land. Acceptance of the amount determined by the trial court amounted to making
a choice within Section 51. 74
Court sale. — Section 51 is inapplicable to a purchaser at a Court sale. There is no

covenant for title implied in a Court sale and the purchaser takes only the right title and interest of the
judgment-debtor. But a purchaser in a Court auction who is not party to the decree is entitlted to the
value of the improvements bona fide effected by him on being evicted from the property owing to some
defect or irregularity in the proceedings leading up to the sale. The time of his making improvements is
immaterial, provided he had then an honest belief in the validity of his title. Bona fide in this connection
means only honest belief in the validity of his title and does not extend to the necessity of making
proper inquiries as to the title and regularity of the prior proceedings. 75
Defective title. —This phrase, used in the marginal note, is misleading. A title is
usually said to be defective when it is not marketable. It is not used here in the sense of not
marketable. An absolute owner may possess a defective title in the sense that it is not marketable.
What the phrase here means is that the person who holds the property is not the absolute owner.
Defective title would include absolute want of title. —Defendant purchased at an

auction a plot of land and obtained possession of two acres and odd more than what he had
purchased. Without being conscious of the mistake and after he made improvements on the whole
land, the plaintiff, finding that the defendant hand in his possession more lands than were actually sold
to him, sought to eject him from the excess land. It was held that Section 51 applied because the
Page 11 of 30
S. 51. (A)
defendant was a transferee of the property as a whole and believed in good faith that he was
absolutely entitled to the whole property and had made improvements bona fide on the property. 76
Invalid transfer. —A majority of the Full Bench of the Madras High Court on Letters
Patent appeal held that the word " transferee" in
Section 51 of the Transfer of Property Act includes a transferee under an invalid
transfer and the words "the person causing the eviction" include a transferor under an invalid transfer.77
A Hindu testator gave certain properties to his mother for maintenance with power of alienation. The
property was subject to a mortgage created by the testator. The mother gifted the property to the
nephew who sold the property to discharge the decree of the mortgagee obtained against the mother,
widow and nephew. Held, neither the mother nor nephew had a right to convey and the sale was set
aside at the instance of the widow, the purchaser being allowed compensation for improvements made
by him, he being an alienee in good faith. 78
Defeasible title. —A defeasible title is not the same thing as a defective title and
Section 51 applies only to defective and not to defeasible transfers. If the vendor’s estate is defeasible
the transferee’s title is bad. Following are some instances :—
(a) A power of entry exercisable by a stranger in the event of a breach of covenant, unless void for
remoteness. 79
(b) A transfer of property subject to a right of pre-emption vested in a stranger or co-owner.
(c) When the transferee held under a settlement void against creditors.
(d) When the transfer was made with intent to defeat or delay creditors.
(e) Unless void for remoteness, a power of appointment vested in a stranger.
(f) A transfer of immoveable property to a third person for the benefit of creditors generally.
(g) A voluntary transfer followed by the settlor’s bankruptcy within two years except as to any interest
obtained by a purchaser for value without notice.
(h) A transfer of property in favour of a creditor with a view to giving the creditor preference over other
creditors followed by the transferee’s insolvency within three months after the date thereof except as to
person making title in good faith and for valuable consideration through or under a creditor of the
insolvent.
(i) An option to purchase renders the title defeasible unless void for remoteness.
(j) A sale or mortgage on behalf of a minor by a de facto guardian and without an order of the Court.
(k) A certificated guardian of a minor executed, without permission of the Judge, a usufructuary mortgage.
It was held that Section 51 could not be invoked by the mortgagee who could not have believed in good
faith that he was "absolutely entitled" thereto. 80
Holder under defective title how long entitled to remain in possession. —He is bound
to deliver possession on his title being found to be defective by a decree of the Court. Even if the
improvements were effected under circumstances which entitle him to their value and to a lien upon the
land, it does not follow that he is entitled to remain in possession until he has been reimbursed. 81
Equitable estoppel. —Closely resembling yet materially differing from the principle
enunciated in the section is the subject of equitable estoppel or estoppel by acquiescence barring the
assertion of a legal right against the owner on eviction of the holder of the defective title without
Page 12 of 30
S. 51. (A)
compensation. Where both the parties are equally conversant with the true state of facts this doctrine is
inapplicable. 82 On this doctrine the Privy Council observed in a Canadian case. 83 "Whether there can be
any estoppel which is equitable as distinct from legal and whether ‘equitable estoppel’ is an accurate
phrase, their Lordships do not pause to inquire. The foundation upon which reposes the right of equity to
intervene is either contract or the existence of some fact which the legal owner is estopped from denying."
While awaiting judicial interpretation, it may be permitted to point out that that phrase has been used in
numerous authorities, both English and Indian, as synonymous with "acquiescence" or "equitable
acquiescence" and as comprised in the subject treated in English Law as estoppel in pais . It has been
observed in this country that "it must distinctly be kept in view that cases founded upon the equitable rule of
estoppel are beyond the purview of
Section 51 of the Transfer of Property Act ".84
In a case decided by the House of Lords in 1866, Ramsden v. Dyson , 85 the Lord Chancellor (Lord
Cranworth) stated what the principles of equity on the subject were. He said (page 140): "If a stranger
begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting
him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert
my title to the land on which he had expended money on the supposition that the land was his own. It
considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my
adverse title, and that it would be dishonest in me to remain wilfully passive on such an occasion, in order
afterwards to profit by mistake which I might have prevented." Lord Kingsdown said (p. 170): "If a man
under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing,
under an expectation, created or encouraged by the landlord, that he shall have a certain interest, take
possession of such land with the consent of the landlord, and upon the faith of such promise or expectation,
with the knowledge of the landlord or without objection by him, lays out money upon the land, a Court of
Equity will compel the landlord to give effect to such promise or expectation. This was the principle of the
decision in Gregory v. Mighell 86 and as I conceive, is open to no doubt." Then, after
stating that there has been a difference of opinion among great Judges as to the nature of the relief to be
granted, he says : "But I do not understand any doubt to have been entertained by any of them that, either
in the form of a specific interest in the land, or in the shape of compensation for the expenditure, a Court of
Equity would give relief, and protect in the meantime the possession of the tenant."
In that case the doctrine of equitable acquiescence was considered and it was held not to apply to the case
of a tenant who, with a knowledge of the extent of his own rights, did an act which was at variance with and
in excess of those rights. The principle upon which the doctrine of acquiescence is based is that a man who
acts in such a way as would make it fraudulent for him to set up his legal rights will be deprived of those
rights. But where his acquiescence or other conduct does not amount to a fraud, actual or constructive, he
cannot be deprived of his legal rights. The elements or requisites necessary to constitute fraud of that
description were laid down by Fry, J., in Willmott v. Barber 87 in the following terms :—
(1) The plaintiff must have made a mistake as to his legal rights.
(2) The plaintiff must have expended some money or must have done some act (not necessarily on the
defendant’s land) on the faith of his mistaken belief.
(3) The defendant, the possessor of the legal right, must know of the existence of his own right, which is
inconsistent with the right claimed by the plaintiff.
(4) The defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If
he does not, there is nothing which calls upon him to assert his own rights.
(5) The defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of
money or in the other acts which he has done either directly or by abstaining from asserting his legal rights.
"Where all these elements exist there is a fraud of such a nature as will entitle the Court to restrain the possessor of
the legal right from exercising it, but in my judgment nothing short of this will do." He adhered to this view in a later
Page 13 of 30
S. 51. (A)
case. 88 Upon the authority of that case it must be held that mere silence or even acquiescence on the part of a
person possessing a legal right will not deprive him of that right unless all the above elements of fraud exist. This
appears no doubt to be the law in England. But it will be observed that to raise such an equity, two things are
required, first, that the person expending the money supposes himself to be building on his own land; and,
secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the
person expending the money in the belief that he is the owner. The law as laid down in
Section 51 of the Transfer of Property Act does not in all respects follow the law of England.
In India the leading case on the subject is Beni Ram v. Kundan Lal . 89 There was a lease given in 1858 of six
bighas of land for a term of years (ending with the then current revenue settlement of the mouzah in which the land
leased was situate) for the construction thereon of a saltpetre factory. During the term of the lease, the tenant, after
the completion of the factory, and, in fact, after it had ceased to exist, erected houses on the land, at a considerable
cost, with the knowledge of and without any interference or objection on the part of the landlord. A suit in ejectment
brought after the termination of the lease, was dismissed by the Indian Courts (including the High Court on second
appeal) on the ground that the landlord stood by and acquiesced in the erection of the permanent structures. On
appeal (by special leave) their Lordships of the Privy Council, in reversing the decree of the Courts below and
passing a decree in ejectment, with liberty to the tenant to remove the houses built on the land, observed that "in
order to raise the equitable estoppel which was enforced against the appellants by both the Appellate Courts below,
it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence
from interfering, or in active intervention, was sufficient to justify the legal inference that they had, by plain
implication, contracted that the right of tenancy under which the lessees originally obtained possession of the land
should be changed into a perpetual right of occupation." They further drew attention to the fact that the maxim of
the English Law " quicquid inaedificatur solo solo cedit " has no application in India and that the established rule is
that the lessee may remove at any time during the continuance of the lease all things which he has attached to the
earth, provided he leaves the property in the state in which he received it; implying thereby that there is thus in India
even less reason than in England, for raising a plea of equitable estoppel against the landlord in the case of a lease
for a term of years. This subject is outside the operation of the section but further reference may be made to the
undermentioned cases. 90
What are improvements. —"Improvement" connotes additions or alterations, which are not merely
repairs or reversals. 91 The improvement must be one which would raise the value of the property permanently. 92
Ordinary repairs such as putting up a staircase 93 is not an improvement within the meaning of the section. But
where an uninhabitable house was very largely rebuilt, costs claimed by the purchasers as improvements in
rebuilding the main doors and walls and building two new rooms and a portion of the kitchen were allowed. 94 The
amount of expenditure made had occasionally very little to do with the real issue,—to what extent has enhancement
of the subject been produced. 95 The amount payable is not what was actually spent at the time of effecting
improvements but the increased value of the property at the time the estimate is made. 96 The rule in paragraph 2
of the section is that the amount to be paid or secured in respect of such improvement shall be the estimated value
thereof at the time of the eviction. While in the event of the transferee purchasing the interest of the evictor he must
pay the then market value of that interest irrespective of the value of such improvement. so that sale is to be at
market value, payment or security at estimated value. In either case, the valuation to be made at the time of
eviction.
Severance of improvements effected in good faith from those not proved to be so effected. —
Such a question arose before the Madras High Court where the alienation was not questioned for 30 years and the
transferee in an honest belief in his title effected improvements but when at the end of 30 years the title was
questioned by suit, he still made some improvements. On the question of compensation it was decided that a
certain sum be paid to him for improvements prior to a date named which were effected in good faith that he was
the owner, but that as regards improvements effected at a later date, at which he had not proved that he so
believed, liberty was given to remove the materials subject to conditions, namely, that if the portion so built could be
definitely ascertained the transferee be allowed to remove the materials therefrom in the presence of an officer of
the Court and of the plaintiff or his son so as not to cause any diminution in the value of the remainder of the
building, the removal to be carried out within one month of ascertainment by the Court whether this part of the
Page 14 of 30
S. 51. (A)
building could be satisfactorily identified. 1
Improvements disregarded. —When the owner of the better title sells his interest in the property to the
transferee improvements made by the person with a defective title are not to be taken into consideration.
Improvement secured. —In the event of the person with a better title requiring the eviction of the holder
of the defective title he has to secure the improvements made by the latter but the section is silent as to the form
the security should take and for how long the amount secured is to remain unpaid, nor is it stated what interest the
person with the better title is liable to pay on the amount secured.
Revaluation in execution proceedings. —Where a sum was fixed as value of improvements made by
the mortgagee which between the passing and the execution of the decree had increased in value, the Court held
that under the altered circumstances the mortgagee was entitled to a revaluation in execution proceedings. 2 The
same principle was applied in favour of the mortgagor when the improvements diminished in value within the period
fixed for redemption. 3
Injunction. —Where improvements are effected by a person under circumstances which entitle him to
their value it does not follow that he is entitled to remain in possession until he has been reimbursed. 4
Removal of materials. —The section is silent as to whether the holder of the defective title who is not
entitled to any relief under the section can remove the materials utilized by him in effecting improvements. The
principle enunciated in the section is an exception to the maxim, " quicquid plantator solo solo cedit " and unless the
equitable grounds mentioned in the section are made out the moment the improvements are made they belong to
the owner of the land by operation of law. 5 In Rangoon the right of removal has been denied on the ground that it
would render the provisions of Section 51 nugatory. 6 In Allahabad, however, the Court granted a mortgagee from a
Hindu widow three months time for removing the materials of the house constructed by him. 7 A similar view was
adopted by the Madras High Court in a case which went up to the Privy Council. There liberty was given to remove
the materials subject to certain conditions. 8 Notwithstanding Section 51 a lessee has a right to remove materials in
certain circumstances under Section 108,clause (h) of the
Transfer of Property Act , IV of 1882, which debars him from erecting permanent structures on the land
leased under Section 108 (p).
"Lis pendens." —A defendant is not entitled to compensation for the improvements made after suit for
possession has been filed. 9 Improvements effected by a transferee pending a suit where in the property is in
question cannot be said to have been made by him in the bona fide belief that he is absolutely entitled to the
property. 10 Nor is a party who is put into possession under a decree of the Court which is subsequently reversed
entitled to costs of improvements effected while in possession. 11 The rule laid down in Mathumsa Rowthan v. Apsa
Bin 12 as to an auction purchaser who is not a party to the suit being entitled to compensation for
improvements when he is subsequently ousted from possession on account of the sale being set aside is not
applicable to a party to a litigation making improvements during the progress of the contest.
Vendor purchaser. —If there be a treaty for the purchase of land and there be disagreement as to
terms and the intended purchaser nevertheless expends money upon it, the vendor is not estopped by
acquiescence. 13 Where a purchaser bona fide takes possession of more land than that purchased and makes
improvements on the excess land he is entitled to compensation on eviction. 14
Page 15 of 30
S. 51. (A)
Improvements—Value of. —
Section 51,Transfer of Property Act merely lays down an equitable principle and enables a Court to
determine the equities between the parties. Having regard to the provisions of
Section 51,Transfer of Property Act , that, if the evidence enable a Court to do so, it should assess the
valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of
election as was done in this case.15 Where the defendant was a bona fide purchaser without notice of the
mortgage, he was held entitled to recover the costs of improvements made by him. 16
Where mortgaged property was transferred to a third person, there was registered mortgage deed, and the
transferee had not made any enquiry about the title of the transferee. Held, the transferee was not a bona fide
purchaser, and he was not entitled to the payment of the improvement made by him on the property. 17
Costs. —The section does not state—
(i) who is to pay the costs of estimating the value of the improvements and what is to happen in case a
difference arises between the valuers employed by the rival parties,
(ii) who is to pay the costs of preparation, stamp and registration of the mortgage or other security to be
executed by the holder of the better title,
(iii) who is to pay the costs of the preparation, stamp and registration of the conveyance on a sale of the
interest of the holder of the better title to the transferee.
As to (i), it seems that the costs should be shared by both the parties if a common valuer be employed or that each
party should bear his own costs where separate valuers are engaged. In case of difference the parties must
stipulate for a reference to an umpire.
As to (ii), both on principle and in practice the person giving the security must pay all costs. Stamp duty is payable
by him under Section 29 (a) of the Stamp Act, II of 1899.
As to (iii), costs of preparation of a conveyance is usually borne by the purchaser, including registration and stamp
duty which latter is payable by him under Section 29 (a)of the
Indian Stamp Act , II of 1899.
Crops planted or sown on the property (third paragraph). —As to crops, the section declares that he
is entitled to gather and carry them and for that purpose to free egress and ingress. He cannot defer delivery on this
ground. The section deals with crops which are growing and not with crops which have grown and are ready for
being cut. It therefore becomes necessary to consider such a transferee’s rights to adopt measures to protect the
crops before they are grown and ready to be cut. The section is silent on the subject. Presumably he is entitled to
take steps to protect the crops before they are ready to be cut. But he is not entitled to resist possession until the
crops he has sown are cut. The rule in paragraph 3 creates no bar to eviction in such a case but only lays down that
the transferee is entitled to the crops sown by him and to free ingress and egress to gather and carry them. 18 The
section deals with immoveable property which according to Section 3 of this Act does not include growing crops.
Although under this section a lessee as being a person not believing in good faith that he is absolutely entitled to
the property, cannot take advantage of the rule in paragraph 3, nevertheless such a right is recognized when a
Page 16 of 30
S. 51. (A)
lease of uncertain duration determines by any means except the fault of the lessee under
Section 108(i) of the Transfer of Property Act . But a mortgagee in possession who has brought the land
to sale in execution of his decree cannot recover from the execution purchaser the value of standing crops.19 Nor
has a mortgagor an attachable interest in the crops cut and stored by his tenants upon a sale by the mortgagee
through the Court after expiration of the time allowed to him to redeem, for he is in no better position than a person
acquainted with the inperfection of his title. 20
Where the order of eviction was occasioned by the fault of the tenant, he is disentitled to claim the benefit of the
standing crops on the land at the time of eviction. 21
Similarly, a purchaser of the crops from a trespasser is not entitled in law or in equity to an order deferring the
handing over of the land to the decree-holder until the growing crops have been gathered. 22
Burden of proof. —As to the burden of proof, the amount spent is a fact within the special knowledge of
the transferee and it is for him to lead satisfactory evidence to support his claim. 23
Invocation of
Section 51 of the T.P. Act , does not depend on the pleadings and proof pointing out to the principle
underlying in it. Once the facts necessary for invocation of the same emerge in a case, the Court can invoke it.
Section 51 of the T.P. Act in any way, operates in default, in that, when the defendant who is found to
have made improvements on the property is neither a trespasser, nor has he pleaded and established estoppel.24
Transfer of property pending suit relating thereto
38 Syed Ale Moosa Raza v. Razia Begum ,

AIR 2003 AP 2 [
LNIND 2002 AP 449 ] (11):
(2004) 1 ALD 19 :
(2003) 1 ALT 100 .

AIR 2003 AP 2 [
LNIND 2002 AP 449 ] (11):
(2004) 1 ALD 19 :
(2003) 1 ALT 100 .
40 Lalta Prasad v. Brahmanand ,

AIR 1953 All 449 [
LNIND 1952 ALL 262 ] (DB) : 1953 All WRHC 77.
41 Subhan Ramji v. Mahadeo ,

AIR 1952 Nag 398 : ILR 1951 Nag 914 ; Ambika Devi v. Sachita Nandan Prasad ,
AIR 1960 Pat 289 (DB) : 1960 Pat LR 65.
Page 17 of 30
S. 51. (A)
42 Eipu Varkey v. State , AIR 1954 Trav Co 471 (FB) :

1954 KLT 837 .
43 Kesari v. Ram Chander,

1957 Raj LW 362 : ILR
(1957) 7 Raj 473 .
44 Raman Ittiyathi v. Pappy Bhaskaran ,

AIR 1990 Ker 113 (122).
45 Panchu Lal v. G. ,Daniel

AIR 1951 Ajmer 18 :
1950 AMLJ 57 ; Jahangir Begum v. Ghulam Ali Ahmad ,
AIR 1955 Hyd 101 : ILR 1954 Hyd 822 ; Bimal Chandra Das v. Manmatha Das ,
AIR 1954 Cal 345 [
LNIND 1954 CAL 28 ]: 58 CWN 760; Ijjabba Beary v. Ijjinabha alias Ijjabha Beary ,
AIR 1964 Mys 24 .
46 Manohar Naik v. Brajamohan Bhoi ,

AIR 1952 Ori 239 : 18 CLT 161.
47 Prabati Devi v. Kashmiri Lal Sarma ,

AIR 1959 Cal 69 [
LNIND 1958 CAL 168 ].
48 Fakeruddin Sahib v. S. Ramaswami Mudaliar,

(1965) 1 MLJ 167 .
49 Nagaratnamba v. Ramayya ,
AIR 1963 AP 177 [
LNIND 1962 AP 25 ] (178) : (1962) 2 Andh WR 169.
50 Nagaratnamba v. Ramayya ,
AIR 1963 AP 177 [
LNIND 1962 AP 25 ] (184, 185) : (1962) 2 Andh WR 169.
51 Musthafa v. Andrews ,
AIR 2006 NOC 884 : 2005 (3) Ker LJ 662 (Ker-DB).
52 Ramji Ratanji v. Manohar Chintaman ,

AIR 1960 Bom 169 .
53 Harishchandra Hegde v. State of Karnataka, 2004 AIR SCW 315 (318):

(2004) 1 SCALE 48 :
(2004) 9 SCC 780 .
54 Harishchandra Hegde v. State of Karnataka, 2004 AIR

(320): SCW 315
(2004) 1 SCALE 48 :
(2004) 9 SCC 780 ; Bharat Petroleum Corporation Ltd. v. P. Kesavan , AIR 2004
Page 18 of 30
S. 51. (A)
SC 2206 (2211) :
(2004) 9 SCC 772 [
LNIND 2004 SC 434 ].
55 Harishchandra Hegde v. State of Karnataka, 2004 AIR SCW 315 (320):

(2004) 1 SCALE 48 :
(2004) 9 SCC 780 .
56 Moti Chand v. British India Corporation Ltd ., Cawnpore,

AIR 1932 All 210 ; G.B. Mallakarjuniah v. J.S. Kannia ,
AIR 1961 Mys 62 (63, 64).
57 G.B. Mallakarjuniah v. J.S. Kannia ,

AIR 1961 Mys 62 (63, 64).
58 Ghanashyam Pradhan v. Ram Pratap Kheuria, 115 (2013) Cut LT 54 (57) (Orissa) (DB).
59 Durgozi Row v. Fakeer Sahib , (1907) 30 Mad 197.
60 Shama Bhatt v. T. Ramakrishna Bhatt , AIR

1987 SC 1348 (1352):
(1987) 2 SCC 416 [
LNIND 1987 SC 333 ].
61 Kidar Nath v. Mathumal ,

(1913) 40 Cal 555 P.C.
62 In re Thakoor Chunder Pormanick v. Ramdhome ,

(1866) 6 WR 228 .

(1929) 51 All 454 ; Kesari v. Ramchandr,
1957 Raj LW 362 : ILR
(1957) 7 Raj 473 .
64 Ram Prasad v. Chhajju ,

AIR 1964 All 300 [
LNIND 1962 ALL 152 ] (302); Syed Ale Moosa Raza v. Razia Begum ,
AIR 2003 AP 2 [
LNIND 2002 AP 449 ] (12).
65 Ijjabba Beary v. Ijjinabha ,

AIR 1964 Mys 24 .
66 Periaswami v. Arunjadeswaraswami Temple ,

AIR 1967 Mad 257 [
LNIND 1966 MAD 44 ] (259) :
(1966) 79 Mad LW 637 [
Page 19 of 30
S. 51. (A)
67 Vasanthamma v. Siddaveerappa,
AIR 2011 Kant 54 [
LNIND 2010 KANT 360 ] (58) : 2010 (3) Civil Court Cases 615 : 2010 (2) Cur CC 57
: 2010 (4) ICC 486.
68 ILR 53 Mad 692 : AIR

1930 PC 297 .
69 Md. Naziruddin v. Govindarajulu ,

AIR 1971 Mad 44 [
LNIND 1970 MAD 14 ] (50, 51) (DB) : 83 Mad LW 445.

(1929) 51 All 454 .
71 Raman Ittiyathi v. Pappy Bhaskaram ,

AIR 1990 Ker 112 (122) :
(1989) 2 Ker LJ 377 .
72 Narasayya v. Raja of Venkatagiri , (1914) 37 Mad 1 ; Ismail Khan v. Jaigun Bibi ,

(1900) 27 Cal 570 ; Chapala Devi v. Rakhal Chandra ,
AIR 1964 Pat 363 (367) (DB); Alagarswami Kone v. T.J. Andhoni ,
AIR 1961 Mad 293 [
LNIND 1960 MAD 116 ]:
(1961) 1 MLJ 158 [
LNIND 1960 MAD 116 ] : 74 LW 222.
73 Nundo Kumar v. Banomali ,

(1902) 29 Cal 871 ; Chapala Devi v. Rakhal Chandra ,
AIR 1964 Pat 363 (367) (DB).
74 Subba Rao v. Veeranjancyaswami ,

AIR 1930 Mad 298 [
75 Alagarswami Kone v. T.J. Andhoni ,

AIR 1961 Mad 293 [
LNIND 1960 MAD 116 ]:
(1961) 1 MLJ 158 [
LNIND 1960 MAD 116 ] : 74 LW 222.
76 A.P. Wakf Board, Hyderabad v. Bowlat Bibi ,

AIR 1983 AP 57 [
LNIND 1982 AP 147 ] (63) :
(1982) 2 Andh LT 813 .
77 A.P. Wakf Board, Hyderabad v. Bowlat Bibi ,

AIR 1983 AP 57 [
LNIND 1982 AP 147 ] (63) :
(1982) 2 Andh LT 813 .
Page 20 of 30
S. 51. (A)
78 Padma Rani v. Panchkari ,

AIR 1978 Cal 104 [
LNIND 1977 CAL 68 ] (108); R.S. Madanappa v. Chandrama , AIR
1965 SC 1812 :
(1965) 3 SCR 283 [
LNIND 1965 SC 71 ].
79 Nand Kishore v. Prabhu Narain AIR ,

1976 Raj 20 (31) :
1976 Raj LW 169 ; K.C. Alexandr v. State of Kerela ,
AIR 1966 Ker 72 [
LNIND 1965 KER 55 ] (75) (DB); Krishna Prasad Singh v. Adyanath Ghatak ,
AIR 1944 Pat 77 ; Panchulal v. P. Williams Sawyer ,
AIR 1955 Ajmer 23 , Panchu Lal v. G Daniel ,
AIR 1951 Ajmer 18 : 1950 All LJ 57 (He is not a transferee within the meaning of S.
51).
80 Bhagtu Ram v. Bhagat Ram , AIR

1975 SC 207 (208) :
(1975) 3 SCC 804 .
81 M.A. Kadar v. Dt. Collector , Kanyakumari ,

AIR 1972 Mad 56 [
LNIND 1971 MAD 108 ] (58, 59) (DB).
82 Brijgopal Lumani v. Mothey Anja Ratna Rajkumar ,

AIR 2010 (NOC) 570 (A.P.)
83 Maddanappa v. Chandramma , AIR 1965

SC 1812 (1816) :
(1965) 3 SCR 283 [
LNIND 1965 SC 71 ].

SC 1812 (1816) :
(1965) 3 SCR 283 [
LNIND 1965 SC 71 ].
85 Vasanthamma v. Siddaveerappa ,
2010 (4) Kar LJ 66 (Kar).
86 Kidar Nath v. Mathumal ,

(1913) 40 Cal 555 (P.C.).
87 Gangadhar v. Rachappa , (1929) 31 Bom LR
88 Nijalingappa v. Chanbasawa , (1919) 43 Bom 69.
89 Nanjappa Gounden v. Peruma Gounden , (1909) 32 Mad 530 ; Hans Raj v. Musammat
Somni ,
(1922) 44 All 665 ; Rajrup Kunwar v. Gopi ,
(1925) 47 All 430 .
Page 21 of 30
S. 51. (A)
90 Hans Raj v. Musammat Somni ,

(1922) 44 All 665 ; Nandi v. Sarup Lal ,
(1917) 39 All 463 .
91 Jogeshwar v. Janki ,
AIR 1926 Nag 384 .
92 Suleman v. P. Venkatraju ,
AIR 1925 Mad 670 [
LNIND 1924 MAD 518 ].
93 Rama Aiyar v. Narayansami Aiyar ,

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ].
94 Narayanaswami Ayyar v. Rama Ayyar , (1930) 53 Mad 692 : 57 IA 305.
95 Abdul Sattar v. Mohd. Zahoor ,

AIR 1962 Pat 300 ; Solaiman Moosaji v. Jatindra Nath ,
AIR 1929 Cal 553 : ILR 57 Cal 538 relied.
96 Abdul Sattar v. Mohd Zahoor ,

AIR 1962 Pat 300 (301); see also Mahadei v. Kehri Dei ,
AIR 1962 Ori 71 [
LNIND 1960 ORI 27 ].
97 C.V. Kokulapathy v. K.R.V. Sarma

,
AIR 1972 Mad 54 [
LNIND 1971 MAD 122 ] (56); Alagarswami Kone v. T.J. Andhoni ,
AIR 1961 Mad 293 [
LNIND 1960 MAD 116 ]:
(1961) 1 MLJ 158 [
LNIND 1960 MAD 116 ] : 74 LW 222; see also Sahdu Singh S. Mula Singh v.
District Board , Gurdaspur,
AIR 1960 Punj 172 ; Basta Colla Colliery Co. Ltd. v. Bandhu Beldar ,
AIR 1960 Pat 344 : 1960 BLJR 245 (FB) (
AIR 1938 Pat 435 overruled ;
AIR 1957 Pat 331 approved ); Hiralal v. B.C. Co. Ltd .,
AIR 1957 Pat 331 (DB); Darbari Lal Mudi v. Raneeganj Coal Association ,
AIR 1944 Pat 30 (DB) : (1943) 22 Pat 554.
1 C.V. Kokulapathy v. K.R.V. Sarma ,

AIR 1972 Mad 54 [
LNIND 1971 MAD 122 ] (56); Basta Colla Colliery Co. Ltd. v. Bandhu Beldar ,
AIR 1960 Pat 344 : 1960 BLJR 245 (FB); Hiralal v. B.C. Co. Ltd .,
AIR 1944 Pat 30 (DB) : (1943) 22 Pat 554 ; Sadhu Singh v. District Board,
Gurdaspur ,
AIR 1960 Punj 172 .
2 Ismat Kani v. Nazarali , (1904) 27 Mad 212 ; (lease for 20 years); Shaik Husain v.
Govardhandas , (1896) 20 Bom 1 (yearly tenancy); Venkatavaragappa v. Thirumalai , (1887) 10 Mad 112 (lease from
year to year); Narayan v. Daji ,
Page 22 of 30
S. 51. (A)
(1899) 1 Bom LR 191 ; Nundo Kumar v. Banomali ,

(1902) 29 Cal 871 (permanent lease granted under a prior subsisting lease of the
same nature); Ismail Khan v. Jaigun Bibi ,
(1900) 27 Cal 570 , (lease by mutwali in excess of his powers); Narasayya v. Rajah
of Venkatagiri , (1914) 37 Mad 1 ; Naunihal v. Rameshar ,
(1894) 16 All 328 ; Basta Colla Colliery Co. Ltd. v. Bandhu Beldar ,
AIR 1960 Pat 344 : 1960 BLJR 245 (FB); Hiralal v. B.C. Co. Ltd. ,
AIR 1944 Pat 30 (DB) : ILR 22 Pat 554; Hira Lal Rewani v. Bastocolla Colliery Co.
Ltd. ,
AIR 1957 Pat 331 (Case of monthly tenant); Sahdu Singh v. District Board,
Gurdaspur ,
AIR 1960 Punj 172 .
3 Jugmohan v. Pallonjee , (1898) 22 Bom 1, (lease from year to year).
4 Yeshwadabai v. Ramchandra , (1894) 18 Bom 66, (fazandari tenure); Subba Rao v.

Veeranjancyaswami ,
AIR 1930 Mad 298 [
LNIND 1929 MAD 21 ]; Har Narain v. Sidh Nath ,
AIR 1937 Oudh 75 ; Pandit Har Narain v. Pandit Sidh Nath ,
(1937) 12 Luck 133 .
5 Naina Pillai v. Ramanathan,

(1917) 33 MLJ 84 [
LNIND 1916 MAD 252 ].
6 Thavasi Ammal v. Salai Ammal,

(1918) 35 MLJ 281 [
LNIND 1917 MAD 233 ].
7 Sahdu Singh S. Mula Singh v. District Board Gurdaspur ,

AIR 1960 Punj 172 .
8 Bansal Pvt. Ltd. v. B.S. Mathur , AIR

1975 SC 400 (403) :
(1975) 4 SCC 563 .
9 Bansal Pvt. Ltd. v. B.S. Mathur , AIR

1975 SC 400 (403) :
(1975) 4 SCC 563 .
10 Alagarswami Kone v. T.J. Andhoni ,

AIR 1961 Mad 293 [
LNIND 1960 MAD 116 ].
11 Chapala Devi v. Rakhal Chandra Sen Gupta ,

AIR 1964 Pat 363 (DB) :
AIR 1964 Pat 363 (DB), followed ).
12 Rati Ram v. Shri Krishna ,

AIR 1949 All 257 : ILR
1949 All 449 .
Page 23 of 30
S. 51. (A)
13 Vrijbhukandas v. Dayaram , (1908) 32 Bom 32.
14 Rupan Singh v. Champa Lal ,

(1915) 37 All 81 .
15 Bechu v. Bhabhuti Prasad ,

(1930) 52 All 831 .
16 Parashar v. Ganu ,
(1903) 5 Bom LR 643 .
17 Ramalinga v. Samiappa , (1890) 13 Mad 15.
18 Gopi Lal v. Abdul Hamid ,

AIR 1928 All 381 .
19 Pandiyan Pillai v. Vellayappa,

(1917) 33 MLJ 316 [
LNIND 1917 MAD 104 ].
20 Ramappa v. Yellappa , (1928) 52 Bom 307 ; Dnyanu v. Fakira , (1921) 45 Bom 1304 ;
Nijalingappa v. Chanbasawa , (1918) 43 Bom 69.
21 Narayan v. Ganesh ,
(1926) 28 Bom LR 993 .
22 Land Mortgage Bank of India Ltd. v. Vishnu , (1878) 2 Bom 670.
23 Narayan v. Ganesh ,
(1926) 28 Bom LR 993 .
24 (1917) 40 Mad 1134 ; overruled on another point by Vizagapatam Sugar Development Co. v.
Mathuramarreddi , (1924) 46 Mad 919.
25 Syed Ale Moosa Raza v. Razia Begum

,
AIR 2003 AP 2 [
LNIND 2002 AP 449 ]; Pravesh Kumar Sachdeva v. State of U.P .,
2007 (68) All LR 496 (502) (All).
27 Rama Aiyar v. Narayanasami ,

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ]; Harilal v. Gordhan , (1927) 51 Bom 1040.
Page 24 of 30
S. 51. (A)
28 Rama Aiyar v. Narayansami ,

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ]; Nanjappa v. Perumal Goundan , (1909) 32 Mad 530 ;
Collier v. Baron , (1906) 2 Nag 34.
29 Abhoy Churn v. Attarmoni Dassee ,

(1909) 13 CWN 931 .
30 Pravesh Kumar Sachdeva v. State of U.P. ,

2007 (68) All LR 496 (502) (All).
31 Rajrup Kunwar v. Gopi ,

(1925) 47 All 430 ; Hans Raj v. Musammat Somni ,
(1922) 44 All 665 .
32 Nanjappa v. Perumal Goundan , (1909) 32 Mad 530.
33 Suleman v. P. Venkatraju ,
AIR 1925 Mad 670 [
LNIND 1924 MAD 518 ].
34 Secretary of State v. Dugappa ,

AIR 1926 Mad 921 [
LNIND 1925 MAD 312 ].
35 Thomas Souza v. Gulam Moidin,

(1903) 13 MLJ 214 [
LNIND 1902 MAD 102 ].
37 Harilal v. Gordhan , (1927) 51 Bom 1040.
38 Muthuveera v. The Secretary of State for India , (1907) 30 Mad 270.
39 Chennapragada v. Secretary of State ,

AIR 1925 Mad 963 [
LNIND 1924 MAD 423 ].

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ], on appeal to the Privy Council 53 Mad 692 : 57 IA 305.
41 Murlidhar v. Parmanand ,
(1932) 34 Bom LR 164 .
42 Pawan Kumar Agarwal v. State of U.P. , 2007

AIHC 3689 (3694) (All).
Page 25 of 30
S. 51. (A)
43 Vasanthamma v. Viddeverappa, 2011 AIR CC 398 (392) (Kant).
44 Gangadhar v. Rachappa , (1929) 31 Bom 453.
45 In re Thakoor Chunder Pormanick v. Ramdhone , 6 WR 228.
46 Basta Calla Colliery Co. v. Bandhu Beldar ,

AIR 1960 Pat 344 : 1960 BLJR 245 (FB); AIR 1938 435 overruled ;
AIR 1957 Pat 331 &
AIR 1944 Pat 30 approved ).
47 Durga Devi v. Baini Prasad ,

AIR 2008 (NOC) 1619 (HP).
48 Shiam Lal v. Radha Ballabh ,

AIR 1925 All 770 .
49 Dogar Ram v. Amar Singh , 2005

AIHC 1687 (1691) :
AIR 2005 NOC 354 .
50 Ramanathan v. Ramaswami,
(1916) 30 MLJ 1 .
51 K.Kartha v. Raman ,
AIR 1967 Kerr 22 (24) (DB) :
1966 Ker LJ 652 .
52 K. Kartha v. Raman ,
AIR 1967 Ker 22 (25) (DB) :
1966 Ker LJ 652 .
53 Dharma Das v. Amulyadhan ,

(1906) 33 Cal 1119 .
54 Manokari v. Muhammad Ismail ,

(1911) 33 All 752 .
55 Rangayya v. Parthasarathi , (1897) 20 Mad 120.

SC 1812 (1816) :
(1965) 3 SCR 283 [
LNIND 1965 SC 71 ].
Page 26 of 30
S. 51. (A)
57 Nandi v. Sarup Lal ,

(1917) 39 All 463 ; Suleman v. Perichevla ,
AIR 1925 Mad 670 [
LNIND 1924 MAD 518 ]; Nanjappa v. Peruma , (1909) 32 Mad 530 ; Jogeshwar v.
Janki Bai ,
AIR 1926 Nag 384 ; Raj Kishore v. Jaint Singh ,
(1922) 44 All 665 ; Kanderpa v. Jogendra Nath, (1910) 12 CLJ 391.
58 Hans Raj v. Musammat Somni ,

(1922) 44 All 665 .
59 Narayanaswami v. Rama Ayyar

ILR 53 , Mad 692 : AIR
1930 PC 297 ; Bhagat Ram v. Bhagat Ram , AIR
1975 SC 207 (208); Nand Kishore v. Prabhu Narain , AIR
1976 Raj 20 (31); Md. Naziruddin v. Govindarajulu ,
AIR 1971 Mad 44 [
LNIND 1970 MAD 14 ] (50, 51) (DB); Secretary of State v. Dugappa ,
AIR 1926 Mad 921 [
LNIND 1925 MAD 312 ]; Munna v. Suklal ,
AIR 1924 Nag 142 ; Creet v. Gangaraj Gulraj ,
(1937) 1 Cal 203 ; Khillu Ram v. Dhani Bai , (1937) Lah 350.
60 Jethalal v. Lalbhai , (1904) 28 Bom 298.
61 Ganga Din v. Jagat Tiwari ,

(1914) 12 ALJ 1026 .
62 Govind Venkaji v. Sadashiv Bharma , (1892) 17 Bom 771 ; Premji v. Haji Cassum ,
(1895) 20 Bom 298.
63 Haradhan v. Bhagabati ,
(1914) 41 Cal 852 .
64 Narayanaswami v. Rama Aiyar , (1930) 53 Mad 692 : 57 IA 305.
65 Jogeshwar v. Janki Bai ,

AIR 1926 Nag 384 .
66 Naina Pillai v. Ramanathan,

(1917) 33 MLJ 84 [
LNIND 1916 MAD 252 ].
67 Nannu Mal v. Ram Chander ,

AIR 1931 All 772 .
68 Harilal v. Gordhan , (1927) 51 Bom 1040.

Page 27 of 30
S. 51. (A)
70 Ramanathan v. Ranganathan , (1917) 40 Mad 1134 overruled by Vizagapatnam Sugar

Development Co. v. Mathuramarreddi , (1924) 46 Mad 919 on another point; Narayan v. Ganesh ,
(1926) 28 Bom LR 993 ; Rama Aiyar v. Narayanasami ,
AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ]; confirmed in (1930) 53 Mad 692 : 57 IA 305.
71 Lachmi Prasad v. Lachmi Narain ,

AIR 1928 All 41 .

(1906) 33 Cal 1119 , 1130.
73 (1998) 2 Andh LD 569 :

(1998) 2 Andh LT 766 ; Ratanji Batanje v. Manohar Chintaman ,
AIR 1961 Bom 169 [
LNIND 1959 BOM 127 ].
74 B.S.D. Mahamandal v. Prem Kumar , AIR 1985

SC 1102 (1107) :
(1985) 3 SCC 350 [
LNIND 1985 SC 195 ].
75 Moitheensa v. Apsa Bivi , (1913) 36 Mad 194.
76 Natesa Thevan v. District Board Tanjore ,

AIR 1926 Mad 314 .
77 Ramanathan v. Ranganathan , (1917) 40 Mad 1135, overruled by a later Full Bench

(1924) 46 Mad 919 on another point.
78 Nanjamma v. Nacharammal,
(1907) 17 MLJ 622 .
79 Dunn v. Flood , (1884) 25 Ch. D. 629.

(1930) 52 All 831 .

(1906) 33 Cal 1119 .
82 Ranchodlal v. The Secretary of State for India , (1911) 35 Bom 182.
83 Canadian Pacific Railway v. The King , AIR

1932 PC 108 .

(1929) 51 All 454 .
Page 28 of 30
S. 51. (A)
85 (1866) LR : 1 HL 129.
86 (1811) 18 Ves. 328 : 34 ER 341.
87 (1880) 15 Ch. D. 96.
88 Russell v. Watts , (1884) 25 Ch. D. 559, 585.
89
(1899) 21 All 496 : 26 IA 58.
90 Krishna v. Mir Mahomed Ali ,

(1897) 3 CWN 255 ; Ahmad Yar Khan v. The Secretary of State for India in Council ,
(1901) 28 Cal 693 : 28 IA 211; Nundo Kumar v. Banomali ,
(1902) 29 Cal 871 ; Ali Kazemini v. Manik Chandra ,
(1923) 27 CWN 969 ; Dattatraya v. Shridhar , (1893) 17 Bom 736 ; Yeshwada Bibi
v. Ramchandra , (1894) 18 Bom 66 ; The Municipal Corporation of the City of Bombay v. The Secretary of State for
India in Council , (1905) 29 Bom 580 ; Ramchandra v. Vishnu ,
(1920) 22 Bom LR 948 [
LNIND 1920 BOM 16 ]; Kun Muhammad v. Narayanan , (1889) 12 Mad 320 ;
Narasayya v. Raja of Venkatagiri , (1914) 37 Mad 1 ; Angammal v. Aslami Sahib , (1915) 38 Mad 710 ; Natesa v.
District Board of Tanjore ,
AIR 1926 Mad 314 ; Durgar Sing v. Naurang ,
(1895) 17 All 282 ; Muhammed v. Maru ,
(1908) 6 ALJ 57 .
91 Shabon v. John Lyon School ,

(2003) 3 All ER 975 (984) (HL).
92 Sidramappa v. Shidappa ,
(1929) 31 Bom LR 461 ; Bimal Chandra Dao v. Manmatha Nath Das ,
AIR 1954 Cal 345 [
LNIND 1954 CAL 28 ]: 58 CWN 760.
93 Sidramappa v. Shidappa ,
(1929) 31 Bom LR 461 .
94 Gangadhar v. Rachappa ,
(1929) 31 Bom LR 453 .
95 Kidar Nath v. Mathu Mal ,

(1913) 40 Cal 555 (a case from the Punjab where the Act does not apply).
96 Rama Aiyar v. Narayansami ,

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ], confirmed in (1930) 53 Mad 692 : 57 IA 305.
Page 29 of 30
S. 51. (A)

AIR 1926 Mad 609 [
LNIND 1925 MAD 446 ], confirmed in (1930) 53 Mad 692 : 57 IA 305.
2 Ramunni v. Shanker , (1887) 10 Mad 367.
3 Krishna v. Srinivasa , (1897) 20 Mad 124.

(1906) 33 Cal 1119 , 1130; Jethalal v. Lalbhai , (1904) 28 Bom 298.
5 Maung Aung Ba v. Ma Nyun , AIR 1928 Rang 141 ; Dharma Das v. Amulyadhan ,
(1906) 33 Cal 1119 .
6 Maung Aung Ba v. Ma Nyun , AIR 1928 Rang 141.

(1922) 44 All 665 .
8 Narayanswami Aiyar v. Rama Aiyar , (1930) 53 Mad 692 : 57 IA 305.
9 Raman Ittiyathi v. Pappy Bhaskaram ,

AIR 1990 Ker 112 (122) :
(1989) 2 Ker LJ 377 .
10 Narayanswami Aiyar v. Rama Aiyar , (1930) 53 Mad 692 : 57 IA 305.
11 Velusami v. Bommachi Naicker,

(1913) 25 MLJ 324 [
12
(1911) 21 MLJ 969 [
LNIND 1911 MAD 221 ].
13 Meynell v. Surtees , (1855) 25 LJ Ch. 257 : 65 ER 581.
14 Natesa Thevan v. District Board of Tanjore ,

AIR 1926 Mad 313 .
15 Narayana Rao v. Basavarayappa , AIR

1956 SC 727 (729) :
ILR 1956 Mys 184 .
Page 30 of 30
S. 51. (A)
16 Narayana Rao v. Basavarayappa , AIR

1956 SC 727 (729) :
1957 Ker LT 20 .
17 Vasanthamma v. Viddaveerappa, 2011 AIR CC 388 (392) (Kant).
18 Deo Dat v. Ram Autar ,

(1886) 8 All 502 .
19 Ramalinga v. Samiappa , (1890) 13 Mad 15.
20 Land Mortgage Bank of India Ltd. v. Vishnu , (1878) 2 Bom 670; (case before the
Transfer of Property Act was passed).
21 Mariappa Thevar v. Kaliammal ,

AIR 1971 Mad 198 [
LNIND 1970 MAD 267 ] (202) : 83 Mad LW 783.
22 Thomas Souza v. Gulam Moidin,

(1903) 13 MLJ 214 [
LNIND 1902 MAD 102 ].
23 Shripati Rajoi v. Vishwanath ,

AIR 1955 Bom 457 (459) : 57 Bom LR 844.

AIR 2003 AP 2 [
LNIND 2002 AP 449 ] (12); Dogar Ram v. Amar Singh ,
AIR 2005 NOC 354 : 2004 AIHC 1687 (1691, 1692) (P&H).
End of Document
Darashaw Vakil
S. 52.
During the 25 [pendency]
in any Court having authority 26 [ 27 [within the limits
of India excluding the State of Jammu and Kashmir], or established beyond
such limits by 28 [the Central Government] 29 [* * *] of 30 [any] suit or
proceedings 31[which is not collusive] and in which any right to immovable
property is directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or proceeding so
as to affect the rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the Court and on
such terms as it may impose.
32 [ Explanation. —
For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date
of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or
discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any law for the time being in force.]
STATE AMENDMENTS
Maharashtra. —In its application to the pre-reorganization State of Bombay—(1) the

Transfer of Property and the Indian Registration (Bombay Amendment) Act, 1939 (Bom. XIV of 1939) shall apply to notices
in respect of suits or proceedings which retain to immoveable properties situate wholly or partly in the Greater Bombay with
effect from such date as may be directed by the State Government in this behalf by notification in the Official Gazette :
Provided that the State Government may by similar notification direct that the provisions
of the said Act shall apply to such notices relating to immoveable properties situate wholly or partly in such other area as
may be specified in the said notification.
(2) Section 52 shall be renumbered as sub-section (1) of that section and
(i) in sub-section (1) so renumbered after the word "question", the word and figures "if a notice of the pendency of
such suit or proceeding is registered under Section 18 of the Indian
Registration Act, 1908 ", and after the word "property" where it occurs for
the second time the words "after the notice is so registered", shall be inserted; and
(ii) after the said sub-section (1) so renumbered the following shall be inserted , namely :—
"(2) Every notice of pendency of a suit or a proceeding referred to in sub-section (1) shall contain the following particulars,
namely :—
Page 2 of 2
(a) the name and address of the owner of immoveable property or other person whose right to the immoveable
property is in question :
(b) the description of the immoveable property the right to which is in question;
(c) the Court in which the suit or proceeding is pending;
(d) the nature and title of the suit or proceeding; and

(e) the date on which the suit or proceeding was instituted."—Bom. Act 14 of 1939, Sections 2 and 3 (15-6-1939).
(3) "The provisions of the Transfer of Property and the Indian Registration (Bombay Amendment) Act, 1939 (Bom. XIV of
1939) which amend the
Transfer of Property Act, 1882 , in its application to the pre-Reorganisation State of
Bombay are hereby extended to, and shall be in force in, that part of the State of Bombay to which they did not extend
immediately before the commencement of this Act [namely, the Transfer of Property (Bombay Provision for Uniformity and
Amendment) Act, 1959], and the
Transfer of Property Act, 1882 shall, from the commencement of this Act, be deemed to
be amended accordingly also in that part of the State."—Bom. Act 57 of 1959, Section 3 (14-10-1959).
25 Subs. by Act 20 of 1929, Section 14, for "active prosecution".
26 Subs. by the A.O. 1950, for "in the Provinces or established beyond the limits of the Provinces".
27 Subs. by Act 3 of 1951, Section 3 and Sch., for "within the limits of Part A States and Part C
States" (w.e.f. 1-4-1951).
28 Subs. by the A.O. 1937, for "the Governor General in Council".
29 The words "or the Crown Representative" rep. by the A.O. 1948.
30 Subs. by Act 20 of 1929, Section 14, for "a contentious".
End of Document

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Date and Time: 27 February 2021 09:42:00 IST

Job Number: 137630725

1. THE TRANSFER OF PROPERTY ACT ACT NO. IV OF 1882

THE TRANSFER OF PROPERTY ACT ACT

Reasons for enactment. —The

control the express operative provisions of the Act. 11

Government Grants Act, 1895 The

If two sections are repugnant, the latter must prevail. 43

Proviso. —A proviso appended to a section is either an explanation or a qualification of the section. It

A proviso is to be harmoniously construed with main provision. 48

To sum up, a proviso may serve four different purposes:

(i) Qualifying or excepting certain provisions from the main enactment;

A proviso to a Section or sub-section is subservient to the main provision. 54

Exceptions. —Exceptions shall be construed strictly. 70

It is an error to rely on punctuation in construing Acts of the Legislature. 4

external aid to construction of the provision. 6

it has been enacted and not efface its very purpose. 18

but to make it what the legislature intended it to be. 42

Mimansa Principles of Interpretation. —It is not stated anywhere in the

Amending Act , 1929, retrospective effect of.—Since the passing of the

Amending Act , 2002 (3 of 2003) retrospective effect of.—

2 Romesh Chunder Sannyal v. Hiru Mondal ,

4 Rajah Parthasarathy v. Rajah Venkatadri , (1923) 46 Mad 190 (222); Kishorilal v.

5 Salkeld v. Johnson , (1848) 2 Exch. 256, 154 ER 487.

6 Fenton v. Thorley & Co. Ltd.,

7 Vacker & Sons . v. London Society of Compositors,

9 Poppatlal Shah v. State of Madras , AIR

10 In re The Kerala Education Bill , AIR

(1954) SCR 842 [

11 Manohar Lal v. State of Punjab , AIR

12 Bhinka v. Chapran Singh , AIR

13 Pradeep Oil Corporation v. Municipal Corporation of Delhi2011 , AIR

16 Rashtriya Mill Mazdoor Sangh v. NTC (South Maharashtra , AIRLtd.)

17 Hiten P. Dalal v. Bratindranath Banerjee,

18 Tribhuban Prakash v. Union of India AIR ,

19 Sital Chandra v. (Mrs.) Delanney ,

20 Keshab Panda v. Bhobani Panda, (1913) 18 CLJ 187.

21 Chilton v. Progress Printing and Publishing Co. , (1895) 2 Ch. 29.

25 Aswini Kumar Ghosh v. Arabinda Bose , AIR

26 Chiranjit Lal Chowdhuri v. Union of India , AIR

27 Novartis A.G. v. Union of India, AIR 2013

28 S.S.Bola v. B.D. Sardana , AIR

29 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, AIR

30 Miten S/o Shyamsunder v. U.O.I. ,

31 Karnataka State Financial Corporation v. N. Narasimahaiah , AIR 2008

32 Princl. Chief Conservator of Forest v. J.K. Johnson, AIR

34 Bakthawar Trust v. M.D. Narayan , AIR

35 Subhash Rajkumar Bind v. State of Maharashtra , AIR

39 Millar v. Taylor , (1769) 4 Burr. 2303 : 98 ER 201; Hollinshead v. Hasleton,

40 Nabin Chandra v. Prankrishna De ,

41 Edward v. Shenen , (1843) 11 M&W 595 : 152 ER 943.

44 In re. Mrs. Besant , (1916) 39 Mad 1164.

45 R. v. Taunton St. James (Inhabitants) , (1829) 2 B&C 831 : 109 ER 309.

46 State of Karnataka v. Krishnappa , AIR 2000

47 Hyderabad Asbestos Cement Products v. Union of India , AIR

48 Sales Tax Commissioner v. B.G. Patel, AIR

49 Rohitash Kumar v. Om Prakash Sharma, AIR

50 Sundaram S. Sundarampillai v. V.R. Pattabhuraman , AIR

53 CIT Mysore etc. v. Indo Mercantile Bank Ltd., AIR

54 South Asia Industries v. Sarup Singh , AIR

55 Punardeo Narain Singh v. Ram Sarup Roy ,

57 Guntaiah v. Hambamma , AIR 2005

60 S.P. Gupta v. Union of India , AIR

61 Nalinakhya Bysack v. Shyam Sunder Haldar , AIR