BHARATI VIDYAPEETH UNIVERSITY

NEW LAW COLLEGE

PROPERTY LAW ASSIGNMENT

SUBMITTED TO SUBMITTED
BY

Shantanu Sir Beejal Ahuja

BBA LLB

B-57
 I. Explain Doctrine of Election with relevant illustrations.
1) Introduction-
Election means a choice between two alternative or conflicting rights. Granting two rights in
such a way that one is higher than the other, you can choose either of them. You cannot have
both. The applicant cannot use both, the recipient must choose between two inconsistencies or
alternative rights. Basically, it means that the person taking the benefit should also bear the
burden it is an important part of the transfer of property act 1882 to resolve property conflicts
among people. This principle was derived from the equity principle where a person cannot
retain all the benefits of a transaction thus, he cannot keep the property and get benefits still.
They have to elect for or against the instrument.
2) What is Doctrine of Election-
It is a doctrine based on an equitable principle which has been conceptualized under Section 35
of the Transfer of Property Act, 1882 (TOPA); and within 180-190 of the Indian Succession
Act, 1925. It applies to persons governed by Hindu as well as Mohammedan law. It applies to
both the movable and immovable property. According to doctrine of election, if a benefit is
conferred upon a person under an instrument, that person must also bear the burden. A person
cannot take what’s beneficial to him and disapprove to that which is against him under the same
instrument.
It means to have a choice between the two rights. Selecting one right will render the person
ineligible for the other one. The foundation of the doctrine of election is that the person taking a
benefit under an instrument must also bear the burden. In other words, a person cannot take
under and against one and the same instrument.
o Illustration- A owns a property that is worth Rs 800. B professes to transfer the same to
C through the Rs.1000 instrument to A. But the A, the owner opts/elects to retain his
property and thus, forfeits the gift of Rs. 1000.
The doctrine of election stated by Maitland’s is that- “He who accepts a benefit under a deed or
will or other instruments, must adopt the whole contents of that instrument; Contort to all its
provisions; and Renounce all right that is inconsistent with it.”
a) Effect of Election against the transfer-
Where the owner dissents from the transfer of his property –
o He must relinquish the benefit;
o The benefit intended for him would then revert to the transferor.

3) Ingredients of the Doctrine of Election-

i. The person transferring the property should transferor should not be the owner of the property.
ii. The person transferring must at the same time and in the same instrument, grant some of his
own property to the owner of the property.
iii. Both the transfers must be made in the same transaction i.e., Transfer of the property of the
owner to the transferee and conferring the benefit on the owner of the property. The doctrine of
election is not applicable if the transfers are made by virtue of two separate instruments.
iv. It is required that the owner has a proprietary interest in the property. A person being a creditor
is uncommitted in the election as he merely has a personal right to be paid by the debtor.
v. The owner is not put to election who does not receive direct benefit under the transaction, but
gets some benefit under it indirectly.
vi. The question of election does not arise when the benefit is received by a person in a different
capacity. For example, a person can accept legacy for an estate, at the same time in his personal
competence, he could retain the property.

The second paragraph of section 35 states that it is immaterial whether the transferor at the time of
transfer of property knows or does not know it to be his own property.

o Illustration- By a deed, A transfers 5 acres of land to B which A will get through

partition in the future. B in return gives A Rs. 2 lacs in advance. In the present time that
5 acres of land belongs to A’s father and A does not own the property yet. Now, A’s
father is put to an election whether he wants to keep the Rs. 2 lacs and give the land to B
or not. Whether A does or does not believe that which he professes to transfer to be his
own is immaterial.

4) Election when necessary –

There will be two transactions, one where the property of the owner will be subjected to the
transfer to any third person by non-owner of the property. Other transaction will be where a
benefit will be conferred to the owner of the property. If the transaction dealing with the
conferment of benefit to the owner is direct as the result of the earlier transaction; then the
election is necessary.

Although when benefit is transferred back, he must make some good to the transferee at least it can
be done in the following cases:
 Where the transfer is voluntary and the Transferor had died or had become incapable of
doing a fresh transfer.
  Transfer is for consideration.
o Illustration - X is a property of C. A by gift means promises to give B 1,00,000. He accepts
it although C now wants to retain his farmhouse and A forfeits his gift. In such a course of
action B died, now his representative must pay C 1,00,000.

5) Who doesn’t have to elect –

The person who indirectly derives benefits from the transactions and not directly according
to section 35 does not need to elect.
o Illustration- A promises to give B 1000 given if his son buys C’s house for 1200, Nowhere
n’s son doesn’t have to elect as it is B who will have to make the decision on what to do.

6) When does a person elect to dissent?

According to section 35 If the owner decides not to approve the transfer, he will surrender
the transferred service to him and this service will be returned to the transferor or his
representative as if he had not been released. Following could take place:

 The transfer is voluntary and the Transferor had died or had become incapable of doing a
fresh transfer.

 In all cases where the transfer must be checked, it is the responsibility of the transferor or
his representative to compensate disappointed buyers. The compensation amount is the
amount or value of the property that will be transferred if the option.

7) Exceptions to this doctrine as stated by section 35

Section 35 states that if the property owner is transferred by the seller, a particular service is
started and that the service is pressed to apply to that property if the owner claims the
property. Which must release the performance of certain properties. He is not obliged to
release the compensation given to him by the same transaction if you receive such
compensation for two years, you must assume that you have chosen the transfer.

8) Time limit for Election –

According to section 35, when the owner of the property within one year after the date of
transfer signifies to either transferor or his representative. Even if they know the expiration
period and even after knowing from their representatives does not make a decision, they are
deemed to have elected to confirm the election if they don’t reply after the period is over.
 Election by a disabled person,  a disabled person cannot do election until and unless:

 His disability ceases.

 Someone else on his behalf makes election who is not disabled.

9) Forcing the Election –

If a party is liable or supposed to elect but abstains from doing it; for one-year post-transfer
of the property, the transferor or his representative may force the election.
10) Election in case of death –
i. 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.
ii. Death of Transferee-
If a transferee dies before the 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.
iii. Death of the owner of the property before election-
There is no provision in the section when a party bound to elect has died
before the election. It is submitted that no election in that event can be made.

o Illustration- 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. And the son 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 the election or, in other
words, require the estate to make good the benefits intended for them by the will.

11) Cooper v. Cooper –

The case of “Cooper V. Cooper” is one of the landmark decisions which describes the
principles of Doctrine of Election:
 Facts of the case-
 i. Vera and Harold Cooper were married in 1933. They had two children. Due to legal
separation, there was a property settlement agreement, and though this agreement
Vera took the family home and automobile and Harold took tools and shop
equipment.
ii. The main thing is that in the name of Harold, four policies were there where Vera
was beneficiary. Subsequently, the decree of divorce was a grant by the court.
iii. After that, Vera married one Alves, and Harold married Ida. After the remarriage of
Harold changed the beneficiary of the three equitable policies from Vera to Ida. One
of the policies, which was left signed by Vera but not signed by Harold. And
subsequently, Harold has died.
 Issues-

Whether vera and his children have a vested interest over the property?
 Judgment-
Vera had no interest in the policies at the date of Harold’s death, because Harold’s
obligation for her support, under the terms of the divorce decree, terminated upon
her remarriage; and that the interest of the children in the estate of their father is
limited to the amount necessary for their support measured by the provisions of the
divorce decree prior to reaching their majority.
12) Conclusion –
Section 35 of the Transfer of Property Act, 1882 explains the concept of the Doctrine of
Election. The doctrine of election may be a common-law rule of equity that needs that if a
testator attempts to eliminate property belonging to somebody else and also makes a device
thereto person, the beneficiary must choose from either keeping the property or accepting
the device. Thus, Section 35 provides that, a person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need not elect. Moreover, an individual
who in his one capacity takes a benefit under the transaction may in another dissent
therefrom.

II. Explain doctrine of Lis Pendens with relevant illustrations.

1) Introduction-
The word “Lis Pendens” basically refers to a suit under consideration of any court of law or
an action which is pending in any court. This doctrine is derived from a common law maxim
“ut lite pendente nihil innovetur” which means – that nothing new should be introduced in
the pending litigation. Therefore, the doctrine of Lis Pendens is based upon a principle that
 during the pendency of suit, the subject matter of it (i.e., the property in the suit) should not
be transferred to a third party. The crux is that when litigation is pending in respect of any
property, none of the two parties shall be permitted to transfer the same expect with the
permission of the court. This section is not of a general binding nature instead it only binds
the specific parties involved.
2) Doctrine of Lis Pendens
Section 52 of the Transfer of Property Act mentions about the doctrine of Lis Pendens
which is titled as “Transfer of Property pending suit relating thereto.” The word “Lis” refers
to an action or a suit whereas the word “Pendens” refers to pending. When there is a suit or
proceeding pending between two persons with respect to an immovable property and one
these parties sells or otherwise transfers the subject matter of the litigation, then the
transferee will be bound by the result of the suit or proceeding whether he had the notice of
the suit of proceeding or not. It is also stated that the person purchasing an immovable
property from the judgment debtor during the pendency of the suit has no independent right
to property to resist, obstruct or object execution of a decree.
The main objective behind this doctrine is that no change in the claim should be brought as
creating a new interest would mean transfer of property during the pendente-lite which
would further affect rights of the parties over the property and limits the court to make a
proper administration of justice for the party who originally claimed. The purpose of the
doctrine is to protect either party to the suit against the act of another, to avoid misuse of
legal process and to restrict endless litigation.
3) Origin and basis
The doctrine finds its basis in the ruling given by, Turner L.J. in the case of Bellamy v.
Sabine, it was observed that “it would be it would plainly be impossible that any action or
suit could be brought to a successful termination, if alienations pendente lite were permitted
to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s
alienating before the judgment or decree, and would be driven to commence his proceedings
de novo, subject again to be defeated by the same course of proceeding.” Thus, to put an end
to litigation, the doctrine of lis pendens has come into existence. It has been held that the
foundation for the doctrine does not rest upon notice; it rests solely upon necessity- the
necessity that neither party should alienate the property in dispute so that you can affect his
opposite parties.

In Govinda Pillai v. Aiyyappan Krishnan, AIR 1957 Ker. 10, It was held that the basis of
the doctrine is necessity, so it is immaterial as to whether the transferee had any notice of
 suit pending in the court or not. The transferee is bound by the order of the court even if he
had no actual or constructive notice of the pending suit.
4) Object of the doctrine of lis pendens
The main object and purpose of the rule enshrined under Section 52-
i. To protect one party in litigation against act of another party
ii. To avoid endless litigation
iii. To respect decision of court
iv. To prevent abuse of legal process
5) Applicability of the doctrine-
The doctrine of lis pendens is not applicable where the suit is collusive i.e. instituted with
mala fide intention. This means that there is no actual dispute but the suit is filed for some
evil motive, for example, defrauding a third party.
For the applicability of doctrine of lis pendens, there must be a question of the right to
immovable property involved in the suit. The suit itself should be regarding the dispute in an
immovable property, relating to any right or title of the same. Such suits include a suit for
partition, a suit on mortgage, a suit for pre-emption and a suit of easement.
In Faiyaz Hussain Khan v. Prag Narain, a mortgagee sued the mortgagor for enforcement of
his loan, but before the summons could be served to the mortgagor, he initiated a subsequent
mortgage. The prior mortgagee continued his suit without making the subsequent mortgagee
a party to the suit, and obtained a sale decree from the court. The subsequent mortgagee did
not have any right to redeem the previous mortgage.
6) Essentials of Doctrine of Lis Pendens-

o There must be a pendency of a suit or proceeding.

o The suit/proceeding must be pending in a court which has the jurisdiction to try it.
o A right to immovable property is either directly or indirectly involved in the suit/proceeding.
o The immovable property in dispute is transferred/dealt with by any party to the suit.
o Such transfer/dealing affects the rights of the other party(s) involved in the suit/proceeding.
o Illustration- “A sues B in respect of a house in B’s possession. During the pendency of the
suit B offers the house to C. A’s suit is exonerated. The trade to C holds momentous”. Right
now, the purchaser (C) is obliged by the deferred result of the suit.

A. Pendency of suit - The case begins on the date of filing of the plaintiff and is considered
to continue until a final declaration or order is issued to rule on the matter. This means
that the case is considered pending even if there is an opportunity to appeal against the
decision determining that suit or the execution of the decree is pending. In fact, the case
will be considered ongoing until the case is finalized, not simply after the first appeal
 was dismissed. This doctrine applies even to any transfers made during the pendency of
execution proceedings.
B. Not Collusive - This condition is added by the Amending Act of 1929 in place of the
word "contentious". Collusion means deceitful agreement or compact between two or
more persons to do some act in order to prejudice a third person or for some improper
purpose. Where litigating parties collude, there can be no real battle but only a sham
fight.
o The Supreme Court in the case of Nagubai v B. Sham Rao ([1956] 1 SCR 451) by
stating “In such (collusive) proceeding a claim put forward is fictitious, the contest
over it is unreal, and the decree passed therein is a mere mask having the similitude
of a judicial determination and worn by the parties with the object of confounding
third parties. But when a proceeding is alleged to be fraudulent, what is meant that
the claim made therein is untrue, but the claimant has managed to obtain the verdict
of the court in his favour and against his opponent by practicing fraud on the court.
While in a collusive proceeding the contest is a mere sham, in a fraudulent suit it is
real and earnest.” In cases of collusion, the suit will not be binding on the transferee
and the transfer will be deemed valid.
C. Competent Court - The second condition is that the suit or proceeding must be pending
in a Court of competent jurisdiction i.e., having a competency to try the suit. If a suit is
instituted in a wrong Court which does not have jurisdiction, then section 52 is not
applicable. The rule under the CPC is that a suit in regard to any immovable property
should be filed in the Court within whose jurisdiction the property is situated.
D. Directly in Issue - The fourth essential is that a right to an immovable property must be
directly and substantially in issue in the suit or proceedings. This will happen in any of
the following cases
o Suit for specific performance of a contract to transfer immovable property
o Suit on mortgage
o Suit for easement
o Suit for partition, with the result that the purchaser of an undivided share pending the
suit takes only that property which is allotted to his vendor on partition Suit for
contribution to a mortgage debt
E. Transferred or otherwise dealt with by any Party to the Litigation- The term
"transferred in this section refers to leases, exchanges, sales and mortgages. The
expression "otherwise dealt with includes such actions like raising of constructing over
the property, demolishing it, building a fence etc.
 A transfer by a person whose title is superior to that of the parties to the suit or whose time
is not in any way connected to the suit is not affected by the doctrine.
F. Transfer must affect the other party - The sixth and the last condition is that transfer
must be such as affects the rights of the other party to the litigation. The words any other
party' means any party between whom and the party alienating there is an issue for
decision, which might be prejudiced by alienation. The very object of this doctrine is to
protect only the parties to the litigation against alienations by their opponents pending
the suit. Therefore, the rule of lis pendens does not apply between co-defendants.
7) STATUS QUO: LIS PENDENS, EFFECT OF SUCH TRANSFERS-
Section 52 maintains the status quo unaffected by the act of the parties to the litigation
pending in determination. It does not annul all voluntary transfers effected by the parties to
the suit but only renders them subservient to the rights of the parties under the decree or
order which may be made in that suit. In other words, the transfer will remain valid subject
to the result of the suit.
8) Exceptions to the doctrine of lis pendens
According to section 52, when during pendency the pendency of a suit a transfer is made
with the permission of the court, the principle of lis pendens is not applicable. The Court
may permit such transfer subject to such terms as it may impose. The transfer will be
permissible only when the prescribed conditions will be fulfilled. The parties to the suit may
apply to the court to get the permission for transfer and if the court deems fit, it may give the
permission of such a transfer.
9) Conclusion -
Thus, the doctrine of lis pendens does not prohibit a transfer of a property which is a subject
matter of spending a suitor proceeding in the sense that the transfer by a party of such
property is not void but it is made subject to the decree or judgment of the court, and the
transferee is bound by such decision i.e., other words, it maintains the status quo of the
property.

III. Explain Conditional Transfers with relevant illustrations.

1) Introduction
Transfer of Property Act, 1882 (Hereinafter referred to as “Act”) deals with two types of
transfers, i.e, Absolute transfer and Conditional transfer, where in the former type of
transfer, the transferee is entitled to all the interest over the property and in the later on
fulfilment of the conditions, the transferee get its entitlement. Section 25-35 of the Act
provides for the concept of Conditional Transfer and various provisions related thereto. 
 2) Section 25 – Conditional Transfer 

The transferor as the owner of the property, can transfer it in accordance with his wishes and
conditions. Section 25, talks about the transfer that happens after fulfilment of the conditions
imposed by the transferor. 

Along with that, for the conditional transfer to be valid, the conditions that is imposed should not
be:

1. Prohibited by law,

2. Should not be an act that involves fraudulent acts,

3. Should not be any act that is impossible,

4. Should not be an act that is termed as violative of public policy,

5. Should not be immoral,

6. Any act that incurs any harm to any person or his property.

What has to be seen here is that if these conditions are conditions precedent, not only are the
conditions void, they make the transfer also void. 

For example, A transfers a property a “Y” to B stating that he shall murder Ram as a condition for
the transfer. Such transfer is void as the condition is prohibited by law.

 However, if the condition is a condition subsequent, the condition is void but the transfer may
continue to be valid, i.e., a subsequent void condition cannot affect the validity of the transfer, but a
void condition precedent renders the transfer itself void.

3) Types of Conditions on Transfer 

There are three specific types of conditions that are imposed in a transfer of property. All these
conditions should also satisfy all the requirements of a conditions as mentioned in Section 25 of the
Transfer of Property Act, 1882.

4) Condition Precedent 

Section 26 of the Act, talks about condition precedent that where the transfer is subject to a
condition precedent, this condition has to be fulfilled first and then only can the transfer take place.
Till it is complied with, the transfer cannot take place in law. 
However, if the condition becomes impossible to perform, a substantial compliance will make the
transfer possible.

Example: A transfers Rs. 10,000 to B on condition that he shall marry with the consent of X,Y and
Z. If Z dies before B could seek his consent, getting his consent becomes impossible due to an event
for which the transferee cannot be held responsible. Therefore, if Z marries with the consent of X an
Y, the condition is substantially complied with. 

 However, this does not all the transferee to by himself deviate and partly fulfil the condition when
its complete fulfilment is possible.

5) Condition Subsequent 

Section 29 of the Act, talks about condition subsequent. Any condition that is required to be
fulfilled after the transfer of any property is called condition subsequent. This condition is to be
strictly complied with and the transfer will happen only after the completion of such condition. For
example, A transfers any property ‘X’ to B on the condition that he has to score above 75 percent in
his university exams. If B fails to achieve 75 percent marks then the transfer will break down and
the property will revert back to A.

6) Condition Collateral 

Any condition that is required to be fulfilled simultaneously after the transfer of any property is
called condition collateral. It needs to be strictly followed otherwise the transfer will break down.

For example, A transfer’s property “alpha” to B on the condtion that he shall give an annuity of
RS.100 every month to C for a period of 20 years. If B complies with it and maintains C, the
transfer will be valid and the property will be in the possession of B.

7) Conditional transfer to one person coupled with transfer to another on failure of prior
disposition ( Section 27)

The section talks about where the property is transferred with a condition along with an ulterior
disposition, where if the first condition is not fulfilled then the ulterior disposition shall take effect. 

For example: Father of “X” puts a condition precedent on Y that if he wants to marry X, he has to
attain consent of C,D and E. But if he fails to obtain consent then “X” shall marry Z. 

Here If Y did not obtain the consent of C,D and E, the ulterior disposition will take place, that is, X
will marry Z.
This section has to be contrasted with Section 16 of the Act which specifies that if the prior transfer
fails due to violation of sections 13 and 14, then a transfer that was to take effect upon the prior
transfer would also fail. Similarly, if the prior interest fails under section 25, then also, the
subsequent interest fails.

The Doctrine of Acceleration comes into the picture here, it is based on the principle that one
property should be passed on to some other person if the first condition fails as if the property was
never vested in him.

However, by the virtue of Section 30, if the ulterior disposition is not valid, the prior disposition is
not affected by it. 

For example, if X transfers land to Y and then, after his marriage, life interest to his male offspring.
As the transfer to the male offspring is not valid as per Section 13 of the Transfer of Property Act,
1882 which prohibits any life interest created in favour of unborn. The substance of Section 30
provides that the transfer to B will not be affected even when the ulterior disposition (transfer to
unborn son) is not valid.

8) Conditions transfers that ceases to exist on happening or not happening of specified

uncertain event (Section 31)

This section speaks about those types of conditional transfers where the transfer would come to an
end if a specific uncertain event happens or does not happen. 

For such conditions to 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. (Section 32)

9) Conditional transfer where no time is specified (Section 33):

States about any transfer where on a condition, time is no specified for the happening or non-
happening of an act. This transfer ceases to have effect only when the act is made to be impossible
permanently or for a great period time.

10) Conditional transfer where time is specified (Section 34):

Transfer where time is specified for fulfilling the condition, the transfer will continue to have effect
if the condition is fulfilled within the prescribed time, and if not, then the transfer shall cease to
have an effect.

For example, X agrees to transfer land ‘beta’ to N on the condition that he shall go to England in a
span of 2 months. If N goes to England within the prescribed time period then the transfer shall go
through and N shall get the property, but if he fails to do so inside the 2 months specified by X, the
transfer shall cease to have effect.

11) Conclusion 

Conditional Transfers form a very crucial aspect in day-to-day transactions o transfer of property. It
is important to know about provisions relating to this concept. It is important to note that the
condition on any transfer should not be prohibited by law and can be ideally performed.