1.

Explain the provisions governing transfer of property in favor of an unborn

child under the Transfer of Property Act, 1882 with important case laws.
Ans.

"A person not in presence has a particular reference to one who might be born from now on
however doesn't have an ongoing presence".

INTRODUCTION
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. Property can be defined as something owned by
an individual either in its physical or virtual form. The term ‘property’ though not defined under
the act, it can be ideally transferred through two ways, one being through the direct conduct
between the parties, the second being done though law, and the above act deals with the latter.
The term 'Transfer of property' as made sense of in Section 5, The Transfer of Property Act,
1882 alludes to an act did by a person in the present or future by which he passes his property to
himself or another or additional living persons. The term 'transfer' could here either allude to
transfer of absolute interest in the property or portion of it. The action of such a person would be
called 'transfer of property'. Such transfers incorporate mortgage, sale, gift and so on

WHO IS AN UNBORN CHILD

 A person who has no ongoing presence except for has a particular reference to one and
who might be born in the future is viewed as an unborn child or person. Despite the fact
that a child in mother's belly is basically not a person in presence, but rather has been
treated as a person under both Hindu Law and English Law.

 In this manner, it ought to be noticed that the term 'unborn', alludes not exclusively to
those, who could have been seen however not yet born, that is a child in belly, yet
additionally incorporates the people who are not even seen. Regardless of whether they
will be born at everything is all chance, yet a transfer of property is permissible to be
affected for their advantage.

SECTION 13 OF THE TRANSFER OF PROPERTY ACT, 1882

Section 13 of the Transfer of Property Act, 1882 provides that when for the transfer of property,
an interest in that is made to help an unborn person at the date of the transfer, a prior interest is to
be made in regard of a similar transfer and the interest made to support such person will not
produce results, except if it stretches out to the entire of the remaining interest of the person
transferring the property in the property to be transferred.
This goes on to mean that one might say that the steady property should vest in some living
person between the date of the transfer and the approaching into reality of the unborn person as
the property can't be transferred directly for an unborn person.
The hidden standard in section 13 is that a person discarding property to someone else will not
cause deterrent in the free disposition of that property in the possession of more than one age.
Section 13 doesn't have any significant bearing limitations on the progressive interest being
made for a few persons living at the hour of activity of the transfer. What is provided as a
limitation under section 13 of the Transfer of Property Act, 1882, is the award of interest,
restricted by time etc., to an unborn person.

STATUS OF UNBORN CHILD

There isn't anything in that frame of mind to keep a man from claiming property before he is
born. His ownership is fundamentally contingent, to be sure, for he might very well never be
born; however it is none the less a genuine and present ownership. A child in its mom's belly is
for some reasons viewed by a legitimate fiction as currently born, as per the maxim nasciturus
pro jam nato habetur.
In the expressions of Coke, "the law generally speaking hath thought of him in regard of the
obvious assumption for his introduction to the world."
In Nugent v. Brooklyn Heights R. Co., deciding if a child en ventre sa simple is a legitimate
person with limit with respect to freedoms, it is useful to look at the treatment concurred him in
different divisions of the law. He takes under a devise to children "living" 2 or "born" I at a given
time. This doesn't, nonetheless, include the acknowledgment of a child en ventre sa simple as a
separate existent entity, however is absolutely a rule of development in light of the ground that
"such children come surprisingly close to the gift."

Features of Section 13
The fundamental components of section 13 have been talked about beneath. They are as per the
following:
1. No Direct Transfer

 A transfer can't be directly made to an unborn person. Such a transfer must be brought
into reality by the component of trusts. It is a cardinal guideline of property law that each
property will have a proprietor..
2. Prior Interest
  In the event that the conditions are with the end goal that there is no formation of trust, all
things considered the domain must in another person between the date of transfer and the
date when the unborn person comes into less complex words we can say that the interest
for an unborn person should continuously be gone before by a prior interest made
professionally person.

3. Absolute Interest
 The whole property should be transferred to the unborn person. The transfer to an unborn
person should be absolute and there ought to be no further transfer from him to whatever
other interest which stays just for the lifetime can't be given on an unborn person.

This can be understood with the help of an illustration.

A certain property in possession of Ram is transferred to Shyam which post his death would then
be transferred to Shyam’s oldest child from marriage and then ultimately Ram’s child. Now none
of these children here are born but such transfer would now be invalid since it doesn't reach out
to the entire of A's remaining interest in the property.

Rationale/ Purpose behind Section 13

 Where, on a transfer of resolute property interest is made to serve an unborn person, he
secures upon his introduction to the world, a vested interest, despite the fact that he may
not be qualified for the happiness thereof quickly on his referenced provision anyway
might be deferred off assuming the particulars of the understanding notice an opposite
condition.

 The section sets out that an interest made to support an unborn person vests in that
unborn person when he is born. Such interest stays vested interest despite the fact that he
may not be qualified for the pleasure thereof quickly on his introduction to the world.

 If for instance Ram transfers his property to Gyan to aid his unborn child with course to
reap benefits in a decade from the birth of Gyan’s child and then hand over the assets. So
the unborn child gets a vested interest upon his introduction to the world, despite the fact
that he isn't qualified for take and partake in the pay of the property for a time of a
decade.
SUPREME COURT’S PERSPECTIVE:
The Supreme Court of India in various cases sporadically has unraveled the provisions of the
Transfer of Property Act, 1882 in respect of the transfer of property achieved to help unborn
persons.
In the famous case of Girjesh Dutt vs Datadin, the Court referenced critical objective realities.
current real factors of the case, the court held that the gift for unborn daughters was invalid under
Section 13 as the gift was a confined interest and moreover reliant upon the previous interest for
defendant.
Another infamous case would be the Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey
Kuer where court was of opinion that no interest can be made for an unborn person yet when the
gift is made to a class or series of persons, some of whom are in presence and some are
nonexistent, it doesn't tumble totally, it is genuine in regards to the persons who exist at the hour
of testator's death and is invalid concerning the rest.

OTHER CASELAWS:
 Sopher v Administrator General of Bengal
By virtue of Sopher v Administrator General of Bengal a testator composed that his property was
to be divided after the death of his soul mate into anyway many parts as there will be offspring of
his, living at his death or who will have pre-terminated leaving issue living at his death.
Their Lordships of the Privy Council saw that: "If under a home in the circumstances referred to
in Sec.113, there was conceivable of the interest given to the beneficiary being squashed either
by a chance or by a stipulation of a defeasance, the beneficiary under the later enrichment didn't
get the interest given over in the extremely free construction as that in which the testator held it
and that the domain to him didn't consequently, contain the whole of the abundance interest of
testator in the thing conceded.
 Ardeshir v. Duda Bhoy
In this case where D who was a traveler made a settlement. As shown by the provisions of the
settlement, D was to get during life, 33% each was to go to his sons Ardeshi and R. After D's
death, the trust property was to be separated into two identical parts. The general addition of each
and every property was to be given to An and R perpetually and after their death to the son's of
each absolutely.
In the event that An and R were each to pre-lapsed D without male issue, the trust were to choose
and the trust property were to the trailblazer absolutely. The explorer then, took capacity to deny
or change the settlement in whole or in piece of his own benefit. It was held that R's son who was
not imagined either at the date of settlement or his death took no vested interest and the gift to
him was invalid. A's son who was alive at these dates didn't moreover take a vested interest.
CONCLUSION
In conclusion after referring to the above case laws and a thorough analysis of Section 13, it can
be said that the transfer of property can be executed in respect of unborn persons. Although this
has to be done indirectly through trusts, the interests of the unborn person is secured by an
absolute transfer in cases of immovable property. The fundamental urgent rule venerated under
section 13 of the Transfer of Property Act is that a person organizing off property to another
person won't make obstructions for the free disposition of that property in the ownership of
something like one ages. Section 13 makes it clear that such transfer of property can’t happen
directly to the unborn person but for his interests. He is given legal fiction as in accordance with
yet it might be transferred to help an unborn person maxim nasciturus virtuoso jam nato
habetur. The two conditions to be satisfied for that are, firstly prior life interest ought to be made
at this point not such a huge amount for a perpetual period for a person in presence at the date of
transfer, and secondly absolute interest ought to be transferred for the unborn person.

2. Define Gift under the Transfer of Property Act, 1882 with case laws.

What is Gift
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. A Gift is by and large viewed as a transfer of
ownership of a property where the donor readily brings into impact such transfer without any pay
or consideration in money related esteem. It very well might be as moveable or immoveable
property and the gatherings might be two residing persons or the transfer might occur solely after
the death of the transferor.
At the point when the transfer happens between two residing individuals it is called inter vivos,
and when it happens after the death of the transferor it is known as testamentary. Testamentary
transfers don't fall under the extent of Section 5 of the Transfer of Property Act, and
consequently, just inter vivos transfers are alluded to as gifts under this Act.

Section 122 of Transfer of Property Act

As per this section, a gift as the transfer of a current moveable or immovable property. Such
transfers should be made intentionally and without consideration. The transferor is known as the
donor and the transferee is known as the donee. The gift should be acknowledged by the donee.
This Section characterizes a gift as a gratuitous transfer of ownership in some property that is as
of now existing. The definition incorporates the transfer of both immovable and moveable
property.
Parties involved in a Gift transfer
Donor
The donor should be a skilled person, i.e., he should have the limit as well as the option to make
the gift. On the off chance that the donor has the ability to contract, he is considered to have the
ability to make the gift. This suggests that at the hour of making a gift, the donor should be of the
period of larger part and should have a sound psyche. Enlisted social orders, firms, and
organizations are alluded to as juristic persons, and they are additionally capable to make gifts.
Gift by a minor or crazy person is void. Other than limit, the donor should likewise reserve the
privilege to make a gift.

Donee
Donee needn't bother with to be skilled to contract. He might be any person in presence at the
date of making the gift. A gift made to a crazy person, or a minor, or even to a kid existing in the
mother's belly is legitimate subject to its legal acceptance by a capable person on his/her sake.
Juristic persons like firms, foundations, or organizations are considered as skillful donee and gift
made to them is substantial. Notwithstanding, the donee should be an ascertainable person. The
gift made to the overall population is void. If ascertainable, the donee might be at least two
persons.

Fundamental components
There are the accompanying five fundamentals of a legitimate gift:
1. Transfer of ownership
2. Existing property
3. Transfer without consideration
4. Voluntary transfer with free consent
5. Acceptance of the gift

1. Transfer of ownership
The transferor, i.e., the donor should strip himself of absolute interest in the property and vest it
in the transferee, i.e., the donee. Transfer of absolute interests suggests the transfer of the
multitude of freedoms and liabilities in regard of the property. To have the option to impact such
a transfer, the donor should reserve the privilege to ownership of the said property. Nothing not
as much as ownership might be transferred via gift. In any case, as other transfers, the gift may
likewise be made subject to specific circumstances.
2. Existing property
The property, which is the topic of the gift might be of any sort, movable, immovable,
unmistakable, or immaterial, yet it should be in presence at the hour of making a gift, and it
should be transferable within the significance of Section 5 of the Transfer of Property Act.
Gift of any sort of future property is considered void. What's more, the gift of spes successionis
(assumption for progression) or simple possibility acquiring property or simple right to sue, is
additionally void.

3. Transfer without consideration

A gift should be gratuitous, i.e., the ownership in the property should be transferred without any
consideration. Indeed, even an irrelevant property or a tiny amount of cash given by the
transferee in consideration for the transfer of an exceptionally huge property would make the
exchange either a deal or a trade. Consideration, with the end goal of this section, will have a
similar significance as given in Section 2(d) of the Indian Contract Act. The consideration is
financial in nature, i.e., in money related terms.
Common love and warmth isn't financial consideration and subsequently, property transferred in
consideration of affection and fondness is a transfer without consideration and thus a gift. A
transfer of property made in consideration for the 'administrations' delivered by the donee is a
gift. However, a property transferred in consideration of donee undertaking the responsibility of
the donor isn't gratuitous, therefore, it's anything but a gift since liabilities develop monetary
commitments.

4. Willful transfer with free consent

The donor should make the gift deliberately, i.e., in the activity of his own free will and his
consent just like a free consent. Free consent is the point at which the donor has the total freedom
to make the gift without any power, misrepresentation pressure, and unnecessary impact. Donor's
will in executing the deed of the gift should be free and autonomous. Willful follow up on a
donor's part likewise implies that he/she has executed the gift deed in full information on the
conditions and nature of the exchange. The weight of demonstrating that the gift was made
willfully with the free consent of the donor lies on the donee.

5. Acceptance of gift
The donee should acknowledge the gift. Property can't be given to a person, even in gift, against
his/her consent. The donee might reject the gift as in instances of non-valuable property or
difficult gift. Grave gifts are such where the weight or risk surpasses the real market worth of the
topic.
In this way, acceptance of the gift is essential. Such acceptance might be either express or
implied. Implied acceptance might be derived from the conduct of the donee and the
encompassing conditions. At the point when the donee claims the property or of the title deeds,
there is acceptance of the gift.
Where the property is on rent, acceptance might be induced upon the acceptance of the option to
gather rents.
Notwithstanding, when the property is together relished the experience of by the donor and
donee, direct having a spot can't be treated as proof of acceptance. Right when the gift isn't
grave, even insignificant proof is adequate to show that the gift has been perceived by donee.
Where the donee is ungainly to contract, e.g., minor or insane, the gift ought to be recognized for
the wellbeing of he by a prepared person. The gift may be recognized by a guard in the interest
of his ward or by a parent for their young person. In such a case, the minor, on achieving bigger
part, may excuse the gift.
Where the donee is a juristic person, the gift ought to be recognized by a capable authority
tending to such legal person. Where the gift is made to a heavenliness, it very well may be
recognized by its delegate, i.e., the priest or manager of the safe-haven.

Exclusions
Section 129 of the Act gives the gifts which are treated as exclusions for the whole piece of gifts
under the Act. These are:

 Gifts mortis causa

These are gifts made in consideration of death.

 Muslim-gifts (Hiba)
These are directed by the standards of Muslim Personal Law. The really key necessities are
declaration, acceptance and delivery of possession. Registration isn't needed autonomous of the
value of the gift. In case of a gift of immovable property worth more than Rupees 100,
Registration under Section 17 of the Indian Registration Act is must, as it is pertinent to Muslims
too. For a gift to be Hiba simply the donor is supposed to be Muslim, the religion of the donee is
unnecessary.
What are Onerous Gifts
In case the donor in a singular trade transfers a couple of things to the donee, in which one out of
those things is bothered with responsibility and the others not. Then in such a situation donee,
can either recognize the whole gift or deny to recognize it.
The donee doesn't save the choice to pick or pick the property, which is inconvenience free. He
really wants to recognize the whole gift. This is called Onerous Gifts.

Case guidelines:
Mt. Brij Devi v. Shiva Nanda Prasad and Ors (1939)

Makund Prasad v. Rajrup Singh (1907),

in which the court held that a gift of property made depending on the essential that the land
would be capable to be recovered in the event of its Alienation, was genuine and the power of
refusal was not threatening to the main transfer under Section 10.

Sridhar versus N. Revanna (2000)

The High Court for this present circumstance too presumed that the condition of the gift deed
was not fulfilled and subsequently concluded that the arrangement made by the donee was
invalid and the property is to be returned, yet the Supreme court in this too refered to the choice
hung by virtue of Mt. Brij Devi v. Shiva Nanda Prasad and Ors (1939) and upset the High court's
decision and concluded that the gift deed can't be disavowed as at the real beginning of the gift
deed, the donee was totally restricted to alienate such property which is refused by Transfer of
Property Act by uprightness of section 10.

For an issue that has been a settled guideline

the legal saying, "distance rei praefertur juri accrescendi" inferring that Law favors Alienation
rather than Accumulation can be contacted the primary thing and through alienation of the gifted
property, even the public authority could profit from how much costs that would be charged by
means of transfer of such property to a third person.

CONCLUSION
In conclusion, after looking at the latest case laws, it can be said that transfer as a gift it ought to
follow the provisions of the Section 122 of Transfer of Property Act. This Act comprehensively
describes the genuine gift and the states of the transfer of such a gift.. Gift of future property is
void. Fragmented acceptance of prosperous gifts and excusal of awkward gifts isn't genuine
either. The acceptance of a gift includes the acceptance of the benefits along with the liabilities
joined with such a gift. A gift may be repudiated basically by a typical settlement on a condition
by the donor and the donee, or by canceling the understanding connecting with such gift. The
Donations mortis causa and Hiba are the super two kinds of gifts which don't follow the
provisions of the Transfer of Property Act.

3. Why partial or limited restraint under Section 10 of the Transfer of Property

Act is permitted? What restraints are not permitted? Elaborate with
appropriate case laws.

INTRODUCTION
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. Section 10 of the Transfer of Property Act,1882
sets out the condition controlling the alienation of the property. As per this section, where the
transferee is absolutely controlled from transferring his interest in his property to another person
as a result of a condition which went along when the property was transferred to the transferee,
then this condition will be made void however the transfer would stay legitimate.
Alienation implies transfer of the property. Right of removal is one of the fundamental highlights
of the ownership privileges. Section 10 integrates that any limitation on the right of removal
would be against the fundamental component of ownership privileges. In like manner, that's what
section gives on the off chance that a transfer is dependent upon a condition by which the
transferee (who currently turns into the proprietor) is absolutely limited from discarding or
leaving behind his interest in the property, the condition is void. In such cases since the
transferee turns into the proprietor of the property, any limitation restricting his right of
arranging the property wouldn't be restricting on him and he would be free to transfer it to
anyone using any and all means. In any case, there are exemptions for this standard which is
unfurled in this article.

SECTION 10
SECTION 10: CONDITION RESTRAINING ALIENATION
Section 10 arrangements with condition controlling alienation. That's what it expresses " Where
property is transferred subject to a condition or constraint absolutely controlling the transferee or
any person guaranteeing under him from leaving behind or discarding his interest in the property,
the condition or impediment is void , with the exception of a rent where the condition is to serve
the lessor or those asserting under him : given that property might be transferred to or to support
a lady ( not being a Hindu, Mohammedan or Buddhist), so she will not have the power during
her union with transfer or Change something very similar or her gainful interest therein."
This section sets out that where a property is transferred subject to any condition absolutely
controlling the transferee from discarding the property, the condition is void subject to the
exemptions that is referenced in the event of a rent and wedded ladies. The arrangement is based
the standard of value, that property ought not be made natural for all time. This depends on the
basic guideline of jurisprudence "alienatio rei prae fertur juri accrescendi" that is to alienation is
inclined toward by regulation rather than amassing.

ABSOLUTE RESTRAINT
Section 10 pronounces that a condition to be void when it absolutely restraints alienation.
Restraint on alienation is absolute assuming it totally removes or abridge right of removals.
Section 10 lets a transferee free from immovable property from an absolute restraint put to his
right side to manage the property in his ability as a proprietor thereof. This section applies to a
situation where property is transferred subject to a condition or impediment absolutely limiting
from leaving behind his interest in the property. For making such a condition invalid the restraint
invalid the restraint should be an absolute restraint.
The restraint might be absolute as a limitation on the force of alienation in place of time or
regarding a specific or determined person in particular or of some other structure. The inquiry
whether the restraint being referred to is absolute or fractional is to be gathered from the items in
the deed.
Outlines:
1. A offers his home to B with a Condition that B can not transfer the house to anybody
aside from C. The condition here is void since C might be picked as a person who might in all
likelihood never buy the property.
2. A husband settles his properties on his spouses subject to a condition that they can not
transfer the property without his consent. The condition is void as it removes the force of
alienation of the spouses absolutely
Caselaws:
Gomti Singh v. Anari Kuar,
Achammal v. Rajamanickam Karthikeyan

PARTIAL RESTRAINT
Section just accommodated absolute restraints. It is quiet about the halfway restraints. Where the
restraint doesn't remove the force of alienation of the transferee considerably yet just restricts it
somewhat, the restraint is fractional. An incomplete restraint is legitimate and enforceable. In the
expressions of George Jessel, " the test is whether the condition removes the entire force of
alienation considerably; it is question of substance and not of simple structure. You might limit
alienation in numerous ways, you might confine it by disallowing it to a specific class of people
or you might limit alienation by limiting it to a specific time".

In Renand v. Tourangeaon5 it was held that a condition that transferee will not transfer the
property for a time of twenty years is an absolute limitation and in this way void. In the event
that it were a condition that transferee will not transfer the property for a time of 3 years, it
would be a halfway restraint and hence substantial.

A condition that transferee will not transfer the property via gift, is a halfway restraint and
subsequently substantial. A condition that transferee will not transfer the property family/or to a
specific person in particular, is a fractional restraint and subsequently substantial. Then again, if
a transferor A transferred a recorded to transferred B, with a condition that assuming that he sold
it he should offer to C (A specific person) and no other individual. The limitation was held to
absolute and void.

On account of Muhammad Raza v. Abhas Bandi Bibi7, the condition limited the transferee from
transferring the property to outsiders, i.e., outside the group of the transferor, it was held by the
privy board that the condition was just a halfway restraint which was legitimate and enforceable.
Likewise, when a condition was remembered for the deal deed that the property ought not be
sold external the group of the seller however the transferee offered it to the primary cousin of the
merchant, the Bombay High Court held that the condition was an incomplete restraint and
legitimate. The court expressed that the primary cousin had a place with the Vendor's stock

Dr. Apsi S. Gowala v. Bai Ratanbai

Exemptions
Section 10 makes two exemptions for the common principle that conditions absolutely limiting
alienation are void. The principal exemption is for rent and the second is with respect to a
property which is transferred to a wedded lady.
1. Lease
Rent is a transfer of a restricted interest where the lessor (transferor) holds the ownership and
transfers just the right of pleasure to the tenant (transferee). A lessor can force a condition that
the tenant won't dole out his interest or sublease the property to some other person.
Such a condition will be a substantial condition. Such condition, despite the fact that it is a
restraint on the renter (transferee) against alienation, is legitimate and he can not transfer his
interest without the consent of the lessor.

In Raghuram Rao v. Eric P. Mathias11, the Supreme Court held, in the event of unending leases,
too, any condition limiting the tenant from estranging leasehold property isn't illegal or void.
That's what the Court saw : In perspective on the particular exemption cut out in the event of
rent, there is no substance in the conflict that any condition limiting the tenant from distancing
leasehold property isn't illegal or void. Consequently a condition in an unending lease that
tenant's right isn't transferrable , is a legitimate condition.

A condition in the facilitate that the renter will not rent or relegate his interest to anybody during
the residency of the rent is valid.12 A condition in the rent deed that the tenant would
mandatorily need to give up the rent in the occasion the lessor needs to sell the property13 is
legitimate. In the event that the lessor doesn't explicitly say that break of this condition would
end the rent then, upon the break of such restraint the cure of the lessor isn't a suit for ejectment.
The lessor can record a suit against the tenant just for directive and harms for the break of the
condition.

2. Married Women
Where a property is transferred to a wedded lady who is certainly not a Hindu, Muslim or
Buddhist, the transferor can truly force a condition limiting alienation. Such Condition won't be
void under Section 10. Comparative provisions are there in the Married Women's Right to
Property Act, 1874 which is relevant to wedded ladies who are not Hindu, Muslim or Buddhist.

The personal laws of Hindus, Muslims and the Buddhists as of now accommodate the legitimacy
of restraint on alienation of the wedded ladies of these networks. Subsequently, the two principal
conditions are that the lady ought to be hitched and she ought not be Hindu, Mohammedan or
Buddhist.
Subsequently, a property might be transferred to a wedded Non-Hindu person for her existence
with a condition that she can not transfer it. Reason behind such a restraint is to protect the
interest of the wedded lady who could be effortlessly taken advantage of by their corrupt
husbands.

Distinction between Section 10 and Section 11

• Section 10 determines that in a transfer with condition that absolutely limits the
alienation of the property by the transferee, the condition will be considered to be void.
• Section 11 determines that in a transfer where absolute freedoms in the property have
likewise been distanced to the transferee, and where a condition is forced that the transferee
can't, disregarding having the absolute solidly in the property, do a represent his pleasure in the
property, such condition will be considered to be void.
• Subsequently, the distinctions in these sections are that in Section 10 the condition is
considered void because of absolute restrainment and in Section 11, the condition is considered
void because of the transfer being of absolute nature.

CONCLUSION
In conclusion, after going through the above case laws and a careful analysis of Section 10, we
can establish that when a property is transferred subject to the condition absolutely controlling
the transferee from estranging or separating from his interest in the property, the condition is
void. The rule that underlies this section is that a right of transfer is indistinguishable from the
ownership of the property and so no absolute restraint can be forced on the alienation of the
property. Section 10, 11 and 12 contain specific circumstances under which controlling of
alienation of the property by the transferee is void. It likewise has exemptions where these
circumstances might be substantial. Essentially, under Section 10, states of restraint can be
grouped into two classifications: absolute and incomplete.

4. What are the modes of extinction of easementary rights under the Indian
Easement Act, 1882? Elaborate with case laws.

INTRODUCTION
The idea of easement has been characterized under Section 4 of The Indian Easements Act,
1882. According to the provisions of Section 4, an easementary right is a right moved by the
proprietor or occupier of the land on another land, not his own, the reason for which is to give
the beneficial enjoyment of the land.
This right is allowed in light of the fact that without the presence of this right an occupier or
proprietor can't completely partake in his own property.
It incorporates the right to do or keep on following through with something or to forestall or to
keep on forestalling something regarding or in regard of another land, which isn't his own, for
the enjoyment of his own land.
Outlines
1. 'P' being the proprietor of specific land or house has a right of way over Q's home, nearby
his home, to move out of the road. This is known as right of easement.
2. A willful devotion of right by 'X' to people in general for ignoring or re-passing a surface
of specific land is certainly not a right of easement.

ESSENTIALS OF EASEMENTS
1. Dominant and Servient Heritage
For the enjoyment of right of easement, vital presence of two properties i.e dominant and
servient heritage is an unquestionable requirement. This is on the grounds that according to the
definition, it is the right practiced by the proprietor or occupier of one land for partaking in the
advantage of his/her land, over the land of another person. Dominant and servient heritage can't
be one. Hence, the presence of two properties and that to be separate from one another is
fundamental.

2. Separate owners
For practicing the right of easements, owners of the two properties will be unique and not a
solitary person.

3. Beneficial Enjoyment
The object of easements is that the dominant proprietor appreciates it in a manner which
incorporates express and implied benefits.

4. Positive or Negative
Easements can be both positive or negative. Former alludes to a right through which the
dominant proprietor really does a demonstration to practice the right over the land of the servient
proprietor. While, the last option means a demonstration of counteraction. In a negative easement
the dominant proprietor forestalls or confines the servient proprietor from doing specific
demonstration or acts.
In a right of easement a proprietor of dominant heritage can do a demonstration or forestall the
servient proprietor from following through with something but he can't tie the servient proprietor
to work on something for him.
The easementary right exists just when two heritages are nearby one another. It is a right in rem,
and that implies a right accessible against the entire world. Easement as a right is constantly
attached to the dominant apartment. It is a right of re-aliena which implies a right over a servient
apartment and no on one's own land.

Modes Of Extinction of Easements

Section 37 to 47 of The Indian Easements Act, 1882, accommodates the method of extinction of
easements. (COVER EVERY SECTION)
• Disintegration of Servient Owner's right Section 37
In the circumstance where the grantor quits having any right in the servient apartment due to
some reason, then the right of easements stops existing as welling. This has been indicated under
Section 37 of the Act. For eg-X awards a real estate parcel to Y for a time of 20 years in the year
1970. In the year 1971, Y forced an easement in favor of Z. In 1990 Y's interest reached a
conclusion. Subsequently, easementary right conceded to Z fails to end also.
• Expiry of time or occurring of an occasion
At the point when an easement is gained on specific circumstances or for specific reason or for
specific timeframe. On the satisfaction of such condition or reason or expiry of the time, the right
of easement stifles as well as per Section 6 of the Act.
• Extinction by discharge Section 38
Where in a circumstance the proprietor of the dominant heritage delivers the right of easement to
the servient proprietor, the right stops existing. Such a delivery can be both explicitly or
impliedly made. For eg-P has an option to release water through the roof to Q's yard. P
authorized Q to develop a structure to such a level as not have the option to release water. Q
assembles it and P's right reaches a conclusion.
• End of need
At the point when need ends the easement of need ends too. For instance An awards a real estate
parcel to B on which easement of need for B is the right of his way over A's land. Later on, B
buys a piece of the A's land over which he might pass to arrive at his own land. Here, the need
has finished and so does the easement.
• Futile Easements
At the point when easement is of such a nature that isn't valuable or becomes unequipped for
being beneficial whenever or for any reason, then the right of easement closes.
• Super durable change in the Dominant Heritage
At the point when the idea of the dominant heritage changes forever with expansion in trouble on
apartment, then the right of easement quits existing as the reason for it was the beneficial
enjoyment of the dominant heritage. For instance A's home is found with the end goal that he has
a right of way by going through B's home. Afterward, because of seismic tremor, B's home got
cut off and in this manner, right of easement closes.
• Extinction by annihilation of either of heritages
When either of heritages gets annihilated, the easement closes as it is fundamental for two
properties to exist for practicing the right.
• Solidarity by ownership
By solidarity of ownership it is demonstrated that when one person turns into the proprietor of
both the dominant and servient heritage then the right of easement ends. For example, A has
right of easement over B's property. Later on, A buys B's property and turns into the proprietor of
B's property. In such a case, easement smothers.
Another model which can be expressed her to make sense of the idea is that A has a right of
easement over B's land. In future A takes B's land on lease, here A turns into the occupier of B's
land. Accordingly, easement ends.

SUSPENSION OF EASEMENTS
Section 49 of the Act gives that easement can be suspended under the accompanying conditions
1. An easement is or can be suspended when the dominant proprietor becomes qualified for
the possession of servient heritage for a restricted interest. A model which can be expressed here
to make sense of the idea is that A has a right of easement over B's land. In future A takes B's
land on lease, here A turns into the occupier of B's land. Accordingly, easement suspends.
2. When the servient proprietor becomes qualified for the possession of dominant heritage
for a restricted interest, the easement is suspended.
In this manner, where both the dominant and servient proprietor becomes one, easement is
suspended.

CONCLUSION
In conclusion, after going through the above case laws and a careful analysis of Section 4, it can
be said that The Indian Easements Act accommodates the entire idea of right of easements and
its guidelines in India. Emphasis of Section 4 helps us understand various easement rights and its
subsequent modes of execution. Easement as characterized under Section 4 of the Act is a right
delighted in by the proprietor of the dominant heritage over the heritage of servient proprietor for
the beneficial enjoyment of his own land. It characterizes what really easements comprise of as
well as furnishes with its arrangement. Easements can be prescriptive, customary, semi and of
need.
 5. B has rented his shop to A for a monthly rent of Rs. 10,000/-/. Accordingly A
had been paying it regularly. One day B took Rs. 5 Lakh from A as he was badly
in need of money and assured A to stay in the property without paying monthly
rent till he returned his money.
On the basis of this situation, explain what is this transaction and rights and
liabilities of A and B.

6. Z donates his bungalow to Y, a registered trust and working for rehabilitation

of Juveniles with a condition that this property shall be used exclusively for
shelter to the providing underprivileged juvenile delinquents. After one year,
Y starts hotel for commercial purposes, in that property. Explain the different
legal dimensions in this situation.

7. Distinguish between English Mortgage and Mortgage by Conditional Sale with

suitable legal provisions and case laws.
https://blog.ipleaders.in/understanding-different-types-mortgage-transfer-property-act-
1882/#Mortgage_by_Conditional_Sale_Section_58c
Introduction
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. A mortgage conforms to the 'Hypotheca' of
Roman Law, upon the debtor's failure to pay the debt, the creditor could get the property of the
debtor for sale and recover himself. The concept of mortgage has also been recognized under
Hindu and Muslim Laws where the property was pledged to the creditor, the debtor was debarred
from the possession till the repayment of debt was made, and the profits in the lieu of interest
were taken by the creditor.

In other words, a mortgage is to be understood as a transfer of interest explicitly in immovable

property as security for a loan. Let's say that Mr. X lends some money to Mr. Z, he may do so
without asking for any security or he may demand some security for the payment of money. If
Mr. X does not demand any security and Mr. Z fails to pay the same, the former will have a right
to sue the latter for the money lent but if Mr. Z becomes insolvent, Mr. X may lose all of his
money. However, in a situation where some security of adequate value is given for the loan, the
lender (Mr. X) will be safeguarded if the borrower (Mr. Z) becomes insolvent since precedence
is given to security over the claims of other creditors.

What is Mortgage (Section 58)

The essential element of a mortgage is that it is a transfer of a legal interest in the property with
an arrangement for redemption i.e. endless supply of the loan, the transfer shall become void or
the interest shall be re-conveyed. The provisions pertaining to a mortgage are contained in
Section 58 of the Transfer of Property Act, 1882 (hereinafter "TPA").
Justice Mahmud observed: "Mortgage, as understood in this country, cannot be defined better
than by the definition adopted by the legislature in section 58, TPA."

Kinds of mortgage
 Simple Mortgage [Section 58(b)]
 Mortgage by Conditional Sale [Section 58(c)]
 Usufructuary Mortgage [Section 58(d)]
 English Mortgage [Section 58(e)]
 Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]
 Anomalous Mortgage [Section 58(g)]

Mortgage by Conditional Sale [Section 58(c)]

Clause (c) of Section 58 reads:
Mortgage by conditional sale. — Where, the mortgagor ostensibly sells the mortgaged property
— on condition that on default of payment of the mortgage money on a certain date the sale shall
become absolute, or on condition that on such payment being made the sale shall become void,
or on condition that on such payment being made the buyer shall transfer the property to the
seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by
conditional sal

Basic elements of a mortgage by conditional sale are:

The mortgagor should ostensibly sell the property to the mortgagee.

There should be a condition on such sale that either, on the repayment of the debt on a certain
date, the sale shall become void or the buyer shall transfer the property to the seller, or in default
of payment on the agreed date, the sale shall become absolute.
The condition should be contained in the same document.
In other words, when the mortgagor ostensibly sells the mortgaged property to the mortgagee
with a certain condition such as:
 If the mortgagee makes any default on repayment of the debt (if the loan isn't repaid), the
sale would become absolute and binding, or
 If the mortgagee does not make any default in the payment (repayment of the debt has
been made), the sale would become void, or
 If the mortgagee makes the payment, the buyer shall transfer the mortgaged property to
the seller (the mortgagor shall transfer the property back to the mortgagee), such a transaction is
called a mortgage by conditional sale.
However, it is to be noted that no such transaction will be considered to be a mortgage where no
condition is mentioned in the same document which shall affect the sale.

Condition in the Same Deed

The Provison provided under clause (c) of Section 58 brought about a significant change. Section
19 of the Transfer of Property (Amendment) Act, 1929 led to the inclusion of the stipulation:
Provided that no such transaction shall be deemed to be a mortgage unless the condition is
embodied in the document which affects or purports to affect the sale.
It states that any deed which intends to effect sale would be termed a mortgage by conditional
sale just when it fulfills the above-mentioned elements. This amendment isn't retrospective in
nature. After this stipulation, for a transaction to be treated as mortgage by conditional sale and
not a sale itself the condition of repurchase should be included in the same document that
provides for ostensible sale.
With the amendment in the clause, great emphasis is placed on inculcating the arrangement of
repurchase in the original sale deed itself rather than the transaction being carried out through
two documents (one being the sale deed, other being the document containing conditions of
reconveyance). Where they are in separate documents the mortgagor then the nature of
transaction would not be a mortgage by conditional sale even if they are executed
simultaneously.

The intention of the Parties

It should be kept in mind that documents containing reconveyance conditions would not at all
claim to be mortgaged. The intention of the parties is one of the crucial factors to determine the
nature of the transaction and evidence needs to be produced before the court if one's claim is in
contrast to the written words of the deed in question. (Pandit Chunchun Jha v. Sheik Ebadat)

Personal Liability
In a mortgage by conditional sale, there is no personal liability with respect to the mortgagor to
pay the debt and consequently, the mortgagee isn't permitted to make other of his properties a
part of this transaction. It is an exception to the rule of No Debt No Mortgage.

Absolute Ownership
The Privy Council on account of Thumbuswamy v. Hossain Rowthen observed that the essential
characteristic of a mortgage is that on breach of condition, the sale deed would be executed itself
and the transaction would become an absolute sale without any kind of accountability between
the parties.
The mortgagee does not have possession of the property in this type of mortgage i.e. it gets just
qualified ownership which may lead to absolute ownership in case of default by the mortgagee.

Remedy Available
The remedy with the mortgagee is by way of foreclosure and not sale, which is possible just
through a decree of the court. The mortgagee can file a decree for foreclosure according to
Section 67 of TPA, Rules 2 and 3 of Order 34, CPC just when the mortgagor does not pay the
amount on time and the sale becomes absolute.

English Mortgage [Section 58(e)]

Clause (e) of Section 58 reads:

English mortgage. — Where the mortgagor binds himself to repay the mortgage money on a
certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a
stipulation that he will re-transfer it to the endless supply of the mortgage-money as agreed, the
transaction is called an English mortgage.

Basic elements of an English mortgage are:

There is a consensus to pay the amount on the due date. The mortgagor has to repay the
mortgage money on the due date.
There is an absolute transfer of property to the mortgagee.
Such absolute transfer needs to be subject to a stipulation that the mortgagee will transfer the
property to the endless supply of mortgage money on the agreed date.
On account of English Mortgage, the mortgagor transfers the ownership of the mortgaged
property absolutely to the mortgagee as security. The mortgagee shall return or re-transfer the
property once the mortgagor repays the amount as agreed on a particular date.

Personal Liability
In an English mortgage, there is a personal liability of the mortgagor to repay the amount of
mortgage debt on a certain date as agreed. An agreement to pay is an important part of such a
mortgage.

Remedy Available
In case of default by the mortgagor, the remedy available with the mortgagee is to sell off the
mortgaged property and recover himself.

No Absolute Interest
The property is transferred absolutely but it is subject to the arrangement of re-transfer of that
property if the mortgagor repays the amount. Therefore, interest is transferred which is subject to
the right of redemption.

Where the mortgagor absolutely transfers the property to the mortgagee and the mortgagor is
committed to repaying the money to the mortgagee on a fixed date. Two circumstances are
prevalent in this scenario:

Mortgagor repays the amount: If the mortgagor repays the agreed upon to the mortgagee on the
date specified, the property which was absolutely transferred by him shall be reconveyed to the
mortgagor.
Mortgagor makes default in payment: If the mortgagor does not repay the amount on the
mentioned date, then the remedy with the mortgagee is to sell off the property and recover its
debt. However, there is a personal liability on the mortgagor to pay the debt.
Right of the Mortgagee
The mortgagee here of mortgage gets the right of possession whether the right of entry is
expressed or not, and can retain the same till the said amount isn't paid to him. But when the
mortgagor is in possession he is entitled to profit but isn't accountable to the mortgagee.
However, where the mortgagee is in possession and is enjoying the profits from such property, it
shall apply them in reduction to mortgagees dues.

For instance, B, a mortgagor absolutely sells the property to A through a sale deed. Here if B
makes any default, A has to do nothing except registration of the sale deed, as an absolute right
has been given to A.

CONCLUSION
In conclusion, after going through the above case laws and a careful analysis of Section 58,
Transfer of Property Act, a mortgage is defined as an express transfer of an interest in
immovable property as collateral for a loan. The main feature of a mortgage is that it is a transfer
of a legal interest in the property with an arrangement for redemption, which means that the
transfer will become void or the interest will be reconvened upon debt being paid. Both mortgage
by English Law and by Conditional Sale have been covered before highlighting the key
similarities and differences.

8. What are the rights and duties of parties to exchange? Elucidate.

INTRODUCTION
Exchange is characterized in section 118 of the Transfer of Property Act, 1882. The exchange of
property in this act relates to immovable property** as it were. The exchange of moveable
property is governed by the Sale of Goods Act. The literal meaning of exchange is giving and
taking of something.
In the early decades, the idea of exchange was known as barter system. Individuals used to
exchange their things and items with others who are needing them. And consequently, they used
to get something which is valuable for themselves.

SECTION 118 OF TRANSFER OF PROPERTY ACT, 1882

This arrangement characterizes as "when two persons mutually transfer ownership of one thing
for the ownership of another, neither thing or both things being cash just, the transaction is called
an "Exchange". From above we understand that for being an "Exchange"; I. There should be two
person transferring ownership of one thing for the ownership of another; ii. Neither thing or both
things being cash as it were.

FEATURES OF EXCHANGE;
1. Transfer of ownership: Exchange includes transfer of ownership in some existing property. In
transfer of ownership, absolute interest of the proprietor is transferred. A partition of immovable
property isn't considered as exchange.
2. Property need not be immovable property; In Exchange properties may be immovable or
movable. An immovable property can be transferred against a movable property as well as the
other way around.
3. Exchange incorporates "Barter"; Exchange of one immovable property with another
immovable property is known as "Barter" and same in case of transfer of one movable property
against another moveable property.
4. Method of Transfer;
I. Section 118 gives that a transfer of property in fulfillment of an exchange can be made
exclusively in a manner prescribed for transfer of such property by "Sale". The formalities of
Section 54 (dealing with sale of properties) will be conformed to;
ii. Where both properties are of movable, then exchange may be affected by delivery of
properties and registration isn't essential;
iii. Where properties are immovable, but value is not as much as Rs. 100, then registration is
optional;
iv. Where the properties exchange are immovable properties and their value are more than Rs.
100/ - then registration of exchange of ownership through instrument is necessary.

CASELAWS:
1. it is necessary that Deed of Exchange is a valid contract and not void under Contract Act.
Assume persons are exchanging ownership of their properties to conceal act of wrongdoing or
financial wrongdoing or benami properties then the instrument of exchange become void.
[ Srihari Jena Vs. Khetramohan Jena, AIR (2002) Orissa 195; 2002 (4) Civ LJ 279].
2. At the point when in an exchange of properties one party didn't get possession of the property
he was entitled to get in exchange, he was held entitled to return property transferred by him.
Hari Shankar Mishra Vs. Bad habit Chairman, Kanpur Development Authority, AIR 2001 All
139 ;2001(42) ALL LR 839.
3. Balakrishnan Bhagwanji Lodi Vs. Prakash Sheshrao Lodi, AIR 2005 NOC 89(Bombay); it
was held that in case of partition of joint family property, whenever partition is affected, whether
by way of family arrangement or deed of partition, there is severance of jointness of properties.
Two brothers thereafter exchanged properties which were held by them seperately. The
properties being worth more than Rs. 100/ - in value. They could exchange them just through
registered instruments.

LET'S CONSIDER DIFFERENCE BETWEEN EXCHANGE AND PARTITION;

1. Exchange is mutual transfer of ownership by two persons of various two properties. A
partition is simple an arrangement by which the several co-owners hold property seperately,
which they held in like manner pool beforehand.
2. Exchange is brought about a contract between the parties. The right of partition is a natural
right and there isn't have to go into a contract.
3. In an Exchange the parties exchanging their properties has not interest prior to exchange in
each other properties. In a partition each party has as much interest in the whole property as the
other. There is no select ownership under partition.
Jattu Ram Vs. Hakama Singh, AIR 1994 SC 1653; 1994 where there was imperfection in title of
land got by one party to exchange because of false passages made by patwari and party was
denied from some portion of land according to Deed of Exchange. It was held by Supreme Court
that passages made by patwari in the official records don't create title, therefore the contrary
party was liable to return land(property) to the extent.

Essentials of Exchange
1. There should be two persons for the reason for exchange.
2. Their expectation to transfer the things should be with mutual consent. On the off chance that
either of them has not given consent, it isn't exchange.
3. There should be a transfer of ownership of a thing starting with one person then onto the next
as well as the other way around.
4. Any of the thing which is getting exchanged can be any immoveable property but not cash.
Cash can't be a property in exchange. (In the event that cash is involved, it becomes sale and not
exchange.) (But cash can be exchanged assuming both parties exchange cash. Like A gives 71
rupees to B, and gets 1 dollar from A. See close to next heading.)
5. The exchange takes place between the parties like the course of sale. One person transfers his
ownership to the other person, and similarly, other person does.
Rights and Liabilities of Parties in Exchange
Section 120 doesn't specifically specify the rights and liabilities of the parties to the Exchange. It
gives just that each party has the rights and is subject to the liabilities of a merchant as to that he
gives and has rights and is subject to the liabilities of a buyer as to that which he takes.
Therefore, the rights and liabilities of parties in case of exchange are the same as in case of sale.
In Exchange, one thing is given and another thing has been taken, so parties play job of vender as
well as a buyer, both
Both the parties in exchange have equal rights north of each other. At the point when the person
is transferring the ownership to the other, he is viewed as at the place of a merchant, and he holds
all the rights which a vender has while selling property. The person who gets the property is
viewed as a buyer, and he has all the rights which a buyer has by temperance of being a buyer.

The rights are gained after considering the position a person is holding. In the event that a person
is at the receiving side, he has the rights of a buyer like getting property in a fit condition and,
while possibly not in a fit state, may claim for damages. He has the right to have all rights over
that property after getting transferred.

Exchange of Money
It is a composed decide that cash can't be a thing in exchange. But section 121 of the Transfer of
Property Act says that on the off chance that cash is exchanged between the parties, the parties
should assure the other party regarding the genuineness of cash he has given to the other. The
proving of the genuineness of cash is essential, whenever exchanged.

There are many occasions where cash can get exchanged. For example, a person visiting the U.K
requires the cash of that country as it were. So when he exchanges his cash in rupee to get cash
in pounds, it is an exchange of cash.

Valuation of Things in Exchange

The meaning of exchange no place gives any arrangement or statement relating to the valuation
of things transferred in exchange. The parties exchanging things may transfer any value of a
thing with the other person. It is immaterial that both the things don't have equal valuation. So
the parties exchanging things should transfer it voluntarily and mutually.
On the off chance that any person gets anything damaged or obliterated, he may claim for
damages or may look for consent from the court to return it to the transferor.

* Note: The Transfer of Property Act specifically deals with the transfer of immovable property
with the exception of a couple of provisions like where a thing's cost is not as much as Rs 100; it
very well may be made by delivery of goods. Here no registration is required.

NOTE: Specifically, the Transfer of Property Act deals with immovable property, and where the
subject matter of transfer is movable property, it is dealt under the Sale of Goods Act.

CONCLUSION:
In conclusion, after going through the above case laws and a careful analysis of Section 118,
Transfer of Property Act, it can be said that exchange is based on the age old philosophy of
‘barter system’ where transaction is concerned with immovable property. It is however different
from a partition and is carried out between two persons.(FILL IT)

9. Explain the outline of Registration Act, 1908 in various transactions relating to

real estate.

INTRODUCTION
The word 'property' has been gotten from a Latin word 'properietate' which means a thing that is
possessed. The term property has been characterized in various legislative acts according to their
purposes and necessities, and in this way there is no uniform meaning of property. From a
general perspective, property means any tangible or intangible thing of which one has ownership
rights.
Registration Act, 1908 is such an act regulates the procedure and lists the documents expected
for registration of the movable and immovable property.

What does the expression "Registration" means?

Registration is a term utilized in legal and official language and Registration is taking care by
Section 17 of the Registration Act, 1908 and with Registration the condition point of reference is
payment of Stamp Duty.
 Registration of any documents shall be done within 4 months from the date of execution of the
agreements.
Registration of the documents of sale and purchase of immovable property is mandatory and
guarantees conservation of proof, counteraction of fraud and assurance of title.
The arrangement of the Registration Act, 1908 accommodates the registration of various
documents, to guarantee conservation of proof, counteraction of fraud and assurance of title.

Is Property Registration Mandatory?

According to Section 17 of the Registration Act, 1908, all transactions that include the sale of an
immovable property for a value exceeding Rs 100, ought to be registered. This successfully
means that all the transactions of sale of immovable property have to be registered, as no
immovable property can be purchased for just Rs 100.

What can be registered?

Section 17 of the Indian Registration Act,1908 accommodates mandatory registration of certain
documents. They are:
1. Instruments of gift of immovable property;
2. Non-testamentary instruments which purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of the value of 100 rupees and upwards, to or in immovable property. This means
thatall transactions that include the sale of an immovable property for a value exceeding Rs 100,
should be registered;
3. Leases of immovable property from one year to another, or for any term exceeding one year,
or reserving a yearly lease;
4. The documents containing contracts to transfer for consideration, any immovable property for
the reason for section 53A of the Transfer of Property Act, 1882. The Act also accommodates
documents of which registration is optional (Section 18). They are: Adoption Deed Instrument
relating to shares in business entity Debentures gave by business entity Will Lease of immovable
property not exceeding 1 year Document of a past transaction Power of Attorney regarding
movable property Decree or order of court comprising an immovable property valued below Rs.
100 Certificate of Sale granted Agreement of Mortgage Promissory note Instrument of partition
by Revenue Officer Grant of immovable property by Government When can one register
documents?

Section 23 of The Registration Act, 1908

 states that all documents with the exception of a 'Should' be introduced for registration within 4
months from the date of execution. On the off chance that a report is executed by several persons
at various times, that archive has to be introduced for registration and re-registration within 4
months from the date of each execution.

RATIONALE
The Registration Act, 1908, was enacted with the goal of providing orderliness, discipline and
public notification in regard to transactions relating to immovable property and assurance from
fraud and forgery of documents of transfer.
This is achieved by requiring compulsory registration of certain kinds of documents and
providing for results of non-registration. Section 17 of the Registration Act clearly gives that any
archive (other than testamentary instruments) which purports or operates to create, declare,
assign, limit or extinguish whether in present or in future "any right, title or interest" whether
vested or contingent of the value of ' 100 and upwards to or in immovable property.
Section 49 of the said Act gives that no archive expected by Section 17 to be registered shall,
affect any immovable property included therein or got as proof of any transaction affected such
property, except if it has been registered. Registration of a record gives notice to the world that
such a report has been executed.

Registration gives safety and security to transactions relating to immovable property, regardless
of whether the report is lost or annihilated. It gives publicity and public openness to documents
thereby preventing forgeries and frauds in regard to transactions and execution of documents.
Registration gives information to individuals who may deal with a property, as to the nature and
extent of the rights which persons may have, affecting that property.

Impacts of non-registration of documents

Section 49 of this act states that :
1. No archive expected to be registered under section 17 of this Act shall be valid for
creation, operation, declaration, limitation and assignment of any right, title or interest in any
immovable property except if it's registered within the predefined time span.
2. The archive shall not give any ability to adopt.
3. The archive cannot be gotten as a proof of any transaction affecting such property or
conferring such power.

CASE LAWS
On account of Narinder Singh Rao v. Avm Mahinder Singh Rao:
Narender's father had abandoned a will stating that his significant other could acquire the
property. The will that was signed by a single observer wasn't registered and the widow
bequeathed the whole property to one of her nine kids. The aggrieved kids challenged their
mother's action in the court stating that the will was invalid and that they too had a right in their
father's property. The Supreme Court held that the kids had the right to acquire the property as
the will was invalid because it was not attested by two observers.

In Naginbhai P. Desai v. Taraben A Sheth AIR 2003, Bom, 192 it was held that the agreement
for sale cannot be considered as conveyance for the reason for Indian Registration Act, 1908.

There is no force in dispute that agreement for sale was compulsorily registrable under Clause
(b) to subsection (1) of Section 17 of the Registration Act.

The Supreme Court on account of H.P. Puttaswamy v Thimmamma and Ors CIVIL APPEAL
NO. 3975 OF 2010 observed whether the presense of purchaser of an immovable property is
expected before the concerned authority under the Act when registration of a deed is carried out
in conveyance as per the Act. The question in this case was in relation to a property measuring
4,500 square feet in the village of Hittanahalli Koppalu in Malavallu Taluk in the State of
Karnataka ("Suit Property").

CONCLUSION:

10. What are the transactions which shall be compulsorily registered under the
Registration Act, 1908.
Section 17 of the Act describes the document which compulsory to register. Those are as
follows:
1. Instrument of Gift of immovable property;
2. Non-testamentary instruments which are purporting to creation, assignment, declaration,
extinguishing of any interest in any immovable property worth Rs. 100 and above or by
acknowledging receipt or payment of any consideration for creation, assignment,
declaration or limitation of any right, title or interest;
 3. Lease of immovable property for a period exceeding one year or rent is paid yearly;
4. Contracts for transfer of immovable property for a consideration as per Section 53A of
Transfer of Property Act, 1882 which is executed on or after the commencement of this
act.

11. Write short notes on (Any Two)

a) Immovable Property
Sorts of transfer under the Transfer of Property Act, 1882

1. Sale of immovable property: There is a transfer of ownership from the buyer to the dealer
in exchange for the cost. Delivery of tangible property from the dealer to the buyer.
2. Mortgage of immovable property: The property gets transferred from the buyer to the
dealer as a mortgage where the immovable property is mortgaged to get a loan. The mortgagor
has to pay the principal loan along with the interest to release the immovable property from the
mortgage.
3. Leases of immovable property: The possession of the property is being transferred
starting with one person then onto the next person for a decent cost in this scenario there is no
transfer of ownership.
4. Exchange of immovable property: When two persons mutually choose to transfer
immovable property it would be alluded to as an exchange of property.
5. Gift of immovable property: According to the transfer of property Act, 1882, gift alludes
to a transfer of movable or immovable property fiercely or without the consideration, by one
person that is donee, to donor transfer is accepted by and on behalf of the donee.

Section 54 further lays down the manner in which a sale of immovable property ought to be
affected. In case of tangible immovable property of value rupees hundred and upwards or in case
of inversion or any other intangible thing, a sale can be made simply by a registered instrument.

At the point when the tangible immovable property is of value not as much as rupees hundred the
sale can be made by a registered instrument or by the delivery of the property. The delivery of a
tangible immovable property is said to have taken place when the merchant places the buyer or
another person on the bearing given by the buyer, in possession of the property.
b) Simple Mortgage
According to Section 58 of Transfer of Property, there are six sorts of mortgages
Simple Mortgage
• Simple Mortgage is characterized under Section 58(b) of Transfer of Property Act, 1882.
• In a simple mortgage, the mortgagor doesn't transfer immovable property to the
mortgagee but agrees to pay the mortgage cash.
• The mortgagee agrees on a condition that in case of not paying the mortgage cash the
mortgagee has each right to sell the property and can utilize the returns of the sale and such a
transaction is called a simple mortgage.

c) Lease
One of the modes of transferring property for a particular timeframe is Lease. Lease is a transfer
of an interest in the property for a stipulated timeframe without transferring the ownership of that
property. In a lease, right of possession is transferred instead of the right of ownership.
Transferor here is called the lessor and the transferee for example the one enjoying the property
for a period is called tenant. Lease is governed by the Transfer of Property Act, 1882 and it is
given from Sections 105 to 117.
There are 4 terms that we will go over this article which are related to lease of immovable
property and they are as per the following:
• Lessor-The transferor of the immovable property is called lessor.
• Renter The transferee of the immovable property is called resident.
• Premium-The premium is the cost paid for obtaining a lease of immovable property.
• Lease The cash or administration that is delivered is known as lease.
Components of a valid lease
For a lease to be valid it has certain essentials that are required to have been satisfied and they
are as per the following:
1. Competency of Lessor and Lessee-For a lease to be valid both the lessor and the resident
should be capable enough to comprise a contract. For a lessor and tenant to be able they should
be:
• The tenant should be a major.
• The lessor should hold the title and authority to make the lease.
• Both the lessor and tenant should be of sane psyche.

2. Subject matter-The subject matter of the lease should be immovable property like a flat,
house or loft.

3. Consideration-There should be a form of consideration engaged with the contract.

Without a consideration it wouldn't be a valid lease rather it would be treated as a gift. The
consideration is usually as superior in addition to lease but some of the time it tends to be
premium alone or lease alone.

4. Duration-A lease for an immovable property shall be made for a very long time. In case
the duration surpasses a year i.e a year or more then a lease agreement can be made by a
registered instrument according to Section 107 of the Transfer of Property Act, 1882.

5. Delivery and Acceptance-The lessor should convey the contract and the renter should
accept the contract without any form of unnecessary impact, pressure. When the resident accepts
the contract, the lease becomes valid.

Meaning of Lease
Section 105 states the meaning of a lease which states that it is a transfer of immovable property
for a particular time span for a consideration of which the transferee has accepted the terms
surrounding the agreement.
What are the essentials of a lease?
•
o Parties should be able: The parties in a lease agreement ought to be skilled to go into a
contract. Lesser ought to be entitled to a property and have absolute rights over that property.
o Right of possession: Ownership rights are not transferred in a lease, just the possession of
the property is transferred.
o Rent: Consideration for a lease can be taken as a lease or premium.
o Acceptance: Lessee, who is to get the interest in the property after lease, has to accept the
lease agreement along with the time span and terms and conditions forced on the transfer.
o Time Period: Lease always takes place for a particular time span which is to be
determined in the lease agreement. It tends to be relaxed at the choice of the lessor.
Rights and liabilities of Lessor and resident
https://blog.ipleaders.in/lease-under-tpa-1882/
Conclusion

Lease is a vital aspect of real life. Each person has seen a lease deal involving renting of a house,
car or and so forth. Therefore the general public must be familiar with the rights of each and
every individual in a lease, and to be familiar with the provisions that govern lease. The lease is
referenced from Sections 105 to Section 117, out of what Sections which may assist the general
public, law understudies and the legal fraternity with having been examined in this article to give
clarification and a basic idea about the lease.
d) Contingent Sale

Q.1 Elaborate upon the Kinds of transferrable Properties with illustrations

INTRODUCTION
The word “property” has not been defined in the Act, but it has a very wide meaning and
includes properties of all descriptions. It includes movable properties such as case, books, etc.,
and includes immovable properties also such as lands or houses. It also includes intangible
properties sucih as ownership, tenancy, copyrights, etc.
The object of the Transfer of Property Act is to define and amend law relating to Transfer of
Property by act of parties and not to transfer by operation of law. A Transfer of Property is a
contract hence all necessary requirements to constitute valid contract are to be fulfilled

Meaning And Definition

The term ‘transfer’ means a contract plus conveyance. It is a process or an act by which
something is made over to another.
Under Transfer of Property Act, 1882 Section 5 defines ‘Transfer of Property’. According to this
section, transfer of property means an act by which a living person conveys the property in
present or in future:
1. To one or more other living persons, or
2. To himself, or
3. To himself or one or more other living persons, and to transfer such property is to perform
such act.
Sorts of transfer under the Transfer of Property Act, 1882

1. Sale of immovable property: There is a transfer of ownership from the buyer to the dealer
in exchange for the cost. Delivery of tangible property from the dealer to the buyer.
2. Mortgage of immovable property: The property gets transferred from the buyer to the
dealer as a mortgage where the immovable property is mortgaged to get a loan. The mortgagor
has to pay the principal loan along with the interest to release the immovable property from the
mortgage.
3. Leases of immovable property: The possession of the property is being transferred
starting with one person then onto the next person for a decent cost in this scenario there is no
transfer of ownership.
4. Exchange of immovable property: When two persons mutually choose to transfer
immovable property it would be alluded to as an exchange of property.
5. Gift of immovable property: According to the transfer of property Act, 1882, gift alludes
to a transfer of movable or immovable property fiercely or without the consideration, by one
person that is donee, to donor transfer is accepted by and on behalf of the donee.

SECTION 54
Further lays down the manner in which a sale of immovable property ought to be affected. In
case of tangible immovable property of value rupees hundred and upwards or in case of
inversion or any other intangible thing, a sale can be made simply by a registered instrument.

At the point when the tangible immovable property is of value not as much as rupees hundred the
sale can be made by a registered instrument or by the delivery of the property. The delivery of a
tangible immovable property is said to have taken place when the merchant places the buyer or
another person on the bearing given by the buyer, in possession of the propertyAccording to the
Act, 'transfer of property' means an act by which a person conveys the property to one or more
persons, or himself and one or more other persons. The act of transfer may be done in the present
or for the future. The person may include an individual, company or association or body of
individuals, and any kind of property may be transferred, including the transfer of immovable
property.
.

Kinds of Transfer
The Act contemplates the following kinds of transfers: (1) Sale, (2) Mortgage, (3) Lease (4)
Exchange, and (5) Gift. Sale is an out-and-out transfer of property. In mortgage, there is a
transfer of limited interest in property. A lease is a transfer of a right to enjoy immovable
property for a certain time or in perpetuity. Exchange is like a sale, but differs from it as regards
the consideration. In sale, the consideration is money, while in exchange, the consideration is
another thing. In a gift, there is no consideration.

In Harish Chandra v. Chandra Shekhar, AIR 1977 All 44, it was held that a release-deed is a
conveyance, hence a transfer of property. If the release deed states that the releaser was the
owner and it shows an intention to transfer his title and its operative word sufficiently was the
conveyed the title it would amount to transfer.

Analysis of Section 5 of Transfer of property, 1882

· Transfer of ‘inter vivos’ alone are included as transfer from living person/s to living person/s.
· Transfer can be present or future but transferor must be living person. Shamsuddin vs Abdul
Hussain. ( Exception : Section 13 Transfer to an unborn Person)
· Living person include juristic persons like company and other like associations of individuals
whether registered or not.
· Other laws governing transfer are not affected by TPA.
· There must be an ‘act of conveyance’. Property must be handed over to the other person. This
can be expressed or implied.
· Act not exhaustive of all kinds of transfers. It deals with sale, gift, mortgage, lease and
exchange.

Essentials of A Valid Transfer

1. Transfer must be between two or more living Persons (Section.5)
The Transfer must be inter vivos. Therefore there cannot be a transfer to person not in existence
at the time of transfer. The living person including company or Association or body of
individuals whether incorporated or not.

2. The property must be transferable (Section. 6)

Property of any kind of may be transferred, accepts as otherwise mentioned in S.6 (a) to (I)
cannot be transferred. Therefore those properties described in the clauses (a) to (I) of Section.6
cannot be transferred. These are restrictions on the Transfer of Property and any transfer in
contravention of any of the clauses given in Section 6(a) to (I) is null and void.

3. Persons competent to transfer (Section.7)

Every person is competent to contract and entitle to transferable property, or authorized to
dispose of Transferable property not his own, is competent to transfer such a 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.

4. The Transfer must be made in the mode prescribed by the Act, under section 9
Section 9 of Transfer of property provides that for oral transfer, A Transfer of Property may be
made without writing in every case in which a writing is not expressly required by law.

5. The consideration or object of the transfer must be lawful.

No transfer can be made for an unlawful object or consideration as provided in Section 23 of the
Indian Contract Act, 1872.

6. The transfer must not be opposed to the nature of the interest effected thereby.
If the nature of property to be transferred does not admit of such transfer, it cannot be
transferred. (Section 6(h))

Persons Competent To Transfer (Section 7)

Competency to contract has been defined under section 11 of the Indian Contract Act, 1872.
Section 11 says that every person is competent to contract-
a) Who is of the age of majority according to the law to which he is subject,
b) Who is of sound mind, and
c) Is not disqualified from contracting by any law to which he is subject.

Age of Majority
Generally the age of majority is 18 except when a guardian of minor’s person or property has
been appointed by the court in which case it is 21. The age of majority is to be determined
according to the law to which a person is subject.

Mallikarjuna vs. Mareppa, AIR 2008 a person purchased certain property in the name of his
minor son and subsequently resold it while the son was still minor. Court permission was
necessary under section 8 of the Hindu Minority and Guardianship Act, 1956 but no such
permission was taken. The provision being mandatory the sale was held to be void.
Minor as a transferor: a minor’s contract is void. Raja Balwant Singh vs Rao Maharaj Singh a
transfer of property by a minor is void.

Minor as a transferee: there is no specific provision of law incapacitating a minor from holding

property under a transfer in his favour.
Sound mind
Under section 12 of the Indian Contract Act, a person is of sound mind of the purpose of making
contract if he is capable of understandings it and of forming a rational judgment as to its effect
upon his interest. A contract made by a person of unsound mind is void.

A person who is usually of unsound mind but occasionally of sound mind may make contract
when he is of sound mind.

Disqualified person
An insolvent and alien enemy is disqualified from contracting. A transfer by a defacto Guardian
of minor’s property is invalid and will be hit by section 11 of Hindu minority and guardianship
Act, 1956. Johri vs Mahila Darupati, AIR 1991.

Persons authorized to dispose of property not his own

If the transferor has no title to the property, he must have authority to transfer it. For e.g. an
agent acting under power of attorney.

Chittu Singh vs Chatan Singh, 1923 a person who has no right at all to have possession cannot
make any valid transfer.
Also, the power of such person cannot exceed the power of the person who has so appointed
him.

Q.1 Analyze the concept of ‘Sale’ of immovable Property and rights and liabilities of
the buyer under the provisions of law.

INTRODUCTION
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. Section 54 of the Transfer of Property Act, 1882
(subsequently alluded to as the Act) covers the topic of sale including what a sale is; how a sale
is to be made; and the contract for sale. In 'sale' there is a "transfer of ownership" from the
transferor to the transferee, in exchange at some cost or consideration. The transferor is called
the 'seller' while the transferee is called the 'buyer.'

The transfer of a property incorporates the transfer of 3 basic rights:

• Right to have and partake in the property;
• Right of alienation;
• Right of title;

Seller's rights

A seller has the following rights:-

1. The seller has the rights to rents and profits generated from the property till it is
transferred to the buyer
2. Seller is to be paid consideration from the buyer

Rents, Leases and Profits

The seller is entitled to all the revenue generated out of rents, lease and other profits from the
property till it is entirely transferred to the buyer. And the buyer is supposed to pay any revenue
pumped out of the property, including rent gathered from tenants occupying the property. On the
off chance that the buyer takes possession before the finishing of the sale, he can partake in the
pay from the lease. Nonetheless, the buyer is also liable to pay interest on the unpaid
consideration he had vowed to pay when he made the contract of sale. Then again, assuming that
the ownership of the property passes to the buyer, but the seller still retains possession of the
property, then the seller isn't allowed to gather interest on the purchase cash. The seller cannot
appreciate both possession and interest at the same time. The seller should pick between the two
interest and possession.

Payment of consideration
A seller is entitled to full consideration as stipulated in the contract of sale. Assuming the
contract determines that the payment should be made within a certain time span, then the buyer
should adhere to the said time limit. The buyer failing to pay within as far as possible determined
in the contract would amount to a breach of contract on his part.
In Nalamothu Venkaiya v. BS Neelakanta (2005), a contract of sale was made, and it was
stipulated that the payment should be made within a predetermined time. The buyer gave an oral
guarantee, nonetheless, he deposited no cash as an assurance. At the point when the buyer sued
for explicit performance, the court held that the oral guarantee didn't hold weight, and the fact
that he didn't make a deposit showed his lack of expectation to satisfy the contract.
In a case where a seller has already transferred the ownership to a buyer, but the latter has not
paid the whole consideration, a charge can be placed on the property. Regardless of whether the
buyer transferred the property further, the charge would still exist as long as the consideration
remains unpaid. The seller can also avail interest on the pending consideration from the date of
transfer of possession. The charge can be forced exclusively from the date the conveyance is
executed.
An exemption for this standard of charge - is oral sale and lease.
A seller's charge on the pending consideration cannot be extinguished by a promissory note for
unpaid cash. The standard that interest and possession are mutually selective still applies here.
Furthermore, the seller cannot forfeit deposited cash, in the case where the amount remains
unpaid, taking into consideration a contract to.
Buyer's duties before sale
The following are the duties/liabilities of a buyer before the sale:-
Obligation to unveil material facts
At the point when the buyer has knowledge or information about the nature and extent of the
seller's interest in the property, and such knowledge or information indicates an increase in the
material value of such interest, the buyer has an obligation to unveil such information to the
seller. This obligation applies when the buyer has reason to believe that the seller is unaware of
said information.
To pay the cost
The obligation of the buyer to outfit the guaranteed consideration is paramount. He should pay or
delicate at the agreed overall setting of executing the sale, and to such person according to the
guidelines of the seller. The obligation to pay is "personal in nature" and the endless supply of
the seller to accept setting aside an installment with the court is free.
Encumbrances on the property
Generally, it is understood that the seller has the obligation to get freed of any encumbrances
before he offers the property to the buyer. Before the sale deed is executed, on the off chance that
the buyer figures out that there are charges/encumbrances on the property being sold,
notwithstanding receiving assurances from the seller to the contrary, the buyer can retain a
portion of the purchase cash to offset the charges on the property. The buyer can after finding out
about the encumbrances before the sale, also decide to repeal the contract or sue for damages.

Buyer's duties after sale

The following are the duties/liabilities of a buyer after the sale:-
To bear the misfortune to property
When the ownership of the property has been transferred from the seller to the buyer, any
misfortune to the property because of the obliteration, injury, or decrease in value - not caused by
the seller's actions - is to be borne by the buyer. This standard applies even where - possession
has not been conveyed at this point by the seller; full payment of consideration has not been
outfitted by the buyer. The central issue to pay attention to is the passing of ownership. When the
buyer attains ownership, regardless of whether he have possession, he has to bear the
misfortunes.
To pay the outgoings
Similar to the case of bearing misfortune to the property, the central issue to zero in on is
ownership. When the ownership passes to the buyer, he also gains the obligation to pay any
public charges or lease payable regarding the property. Public charges may incorporate taxes
forced by the municipality or relevant authorities on the property. The authorities charge tax
against the actual property and not on the buyer or seller in particular. Before the sale, public
charges are paid by the seller. After the sale, public charges are paid by the buyer. Endless
supply of the sale, the seller ceases to partake in the benefits from the property, in any case, he
gains the right to be reimburse by the buyer regarding charges forced after the fulfillment of the
sale.

Seller's duties after the sale

The following are the seller's duties/liabilities after the sale of immovable property:-
Give possession to the buyer
After the sale deed is executed, the seller should hand over possession of the property to the
buyer. Regardless of whether the buyer has not yet outfitted the guaranteed consideration, the
seller cannot decline to hand over possession. Whether or not the buyer can be constrained to pay
the consideration to the seller has arisen and has been debated heatedly. The High Courts have
taken the following perspectives regarding the delivery of possession:
• It is 'equitable' to make handing over possession of the property by the seller, conditional
to the payment of the cost by the buyer.
• The language of Section 55(1)(f) should be followed and interpreted at face value. On the
off chance that the buyer has paid the full consideration, he can acquire possession and
ownership of the property through the apparatus of the courts.
In the event that the buyer asks for enforcement of explicit performance as for the delivery of
possession, when the maximum has not been paid by him, the court will require the buyer to
deposit cash with the court to show his aim to pay the balance amount due. The court can also
order the buyer to introduce proof of his expectation to make the due payment.
It was observed in B Rajamani v. Azhar Sultana (2005), that assuming the buyer fails to show his
expectation to pay, additionally, failing to show that the amount was ready and available, it is
indicative of his lack of want to satisfy the contract.
Nature of possession has a significant effect on the delivery of possession. The seller should
vacate the property, regardless of whether he, at the end of the day, possesses it or a tenant
involves it. The seller should also clear out any trespasser illegally occupying the property.
Nonetheless, when there is already a tenant occupying the property or on account of a
usufructuary mortgage, the buyer just gains a symbolic possession.

To covenant for title

It is the obligation of the seller to convey a good title to the buyer, free from any deformities or
problems. To enforce the right of explicit performance against the buyer, the seller should
guarantee that the title is beyond reasonable doubt and persuade the court of its authenticity.

The seller should have a saleable interest in the property. Where the seller doesn't in fact have a
saleable interest, regardless of whether he isn't guilty of fraud, he is still liable to pay damages to
the buyer.
The seller cannot address a higher title than that which he actually claims. On the off chance that
the seller distorts the title, he can be held liable to pay damages.

An incorrect portrayal of the property isn't covered under the covenant of title, in any case,
assuming the buyer learns about it before the conveyance is executed, the buyer can cancel the
contract or sue for damages, depending on how seriously distorted the depiction is.

In Ram Swarup and Another v. Fattu (1960), it was held that the buyer need not ask into the
seller's title. Simple doubt of the buyer concerning whether the seller's title holds good or not,
doesn't keep the covenant from operating. The English law teaching - caveat emptor, for example
buyer beware - doesn't apply here.

Buyer's rights
The buyer has the following rights:-
1. Benefits of enhancements
2. Charge for prepaid consideration
Benefits of enhancements
During the interval between the passing of ownership from the seller to the buyer, and payment
of consideration by the buyer, on the off chance that there is an increase in the value of the
property, the seller cannot demand a cost higher than the one agreed upon before. Here, the
buyer is entitled to the increase in value of the property. Where there is an increase in the
material value of the property, and benefits arising from rents and profits got from such
improvement or increase - getting a charge out of such benefits is the buyer's right. The buyer
can also partake in the repairs, and enhancements made by the seller after the finishing of the
sale. Since the buyer has paid for the restrictive enjoyment of the property and its associated
benefits, the seller loses his right to get benefits from the property after the sale.

Charge for prepaid consideration

Although the amount varies from one case to another, the seller usually asks for a deposit from
the buyer at the hour of making the contract of sale. The buyer can charge a lien on the property
against the interest of the seller and individuals claiming under him, and the interest on the
deposit cash that he had paid in anticipation of delivery. This is a statutory charge and begins
from the date of payment of consideration. Interest on the prepaid amount lasts from the date of
payment till the date of delivery of possession. In any case, the exemption for this charge on
prepaid consideration: is the point at which the sale is invalid or the buyer himself commits a
default.

Earnest
Earnest is part of the purchase cash or consideration deposited by the buyer with the seller when
the agreement is made. Earnest is kept as a security by the seller and indicates the goal of the
buyer to satisfy the agreement. In the event that the buyer commits a default, the seller has the
right to forfeit the earnest. Be that as it may, simple delay with respect to the buyer to make
payment doesn't amount to a default. In the event that the seller commits a default, the buyer can
avail of a discount by filing a suit. The seller's defaults incorporate making a faulty title, not
delivering possession in that frame of mind, to obtain any consents necessary for the sale, and so
on.
In Shri Hanuman Cotton Mills v. Tata Air Craft Ltd (1969), the following observations about
earnestness were made:
1. When the contract is closed it should be given.
2. It indicates the goal of the buyer to satisfy his part of the contract. It is symbolic of the
binding nature of the contract.
3. It is part of the consideration agreed upon between the parties for carrying out the
transaction.
4. It is forfeited when the buyer commits a default (simple delay isn't a default).
5. Unless there is a contract to the contrary, the earnest is forfeited when the buyer commits
default.

CONCLUSION
In conclusion, it can be said after going through the above caselaws and carefully analyzing
Section 55 of the Transfer of Property Act, 1882, lists the rights, liabilities, and duties of both the
buyer and seller, concerning a transaction where there is a transfer of immovable property except
if there is a contract to. To understand the transfer of property, it isn't enough to only read
Section 54 of the Act which describes - what is a sale; how a sale is made, and what is a contract
of sale. Section 54 should be read along with Section 55 to gain a total image of the intricacies
that go into the whole course of transfer between the buyer and seller. Section 55 gives a means
to both the buyer and seller to safeguard their individual interests without worrying about
suffering a misfortune because of unfair means or fraud. Section 55 spotlights on endorsing fair
dealings and encourages the transfer of property to keep it from remaining stagnant or going to
waste. This Section is also based on the standards of fairness, value, and good awareness.

Q.2 Analyze the kinds of mortgages and compare with hypothecation and pledge in
India with illustrations.

INTRODUCTION
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India.
. A mortgage conforms to the 'Hypotheca' of Roman Law, upon the debtor's failure to pay the
debt, the creditor could get the property of the debtor for sale and recover himself. The concept
of mortgage has also been recognized under Hindu and Muslim Laws where the property was
pledged to the creditor, the debtor was debarred from the possession till the repayment of debt
was made, and the profits in the lieu of interest were taken by the creditor.

In other words, a mortgage is to be understood as a transfer of interest explicitly in immovable

property as security for a loan. Let's say that Mr. X lends some money to Mr. Z, he may do so
without asking for any security or he may demand some security for the payment of money. If
Mr. X does not demand any security and Mr. Z fails to pay the same, the former will have a right
to sue the latter for the money lent but if Mr. Z becomes insolvent, Mr. X may lose all of his
money. However, in a situation where some security of adequate value is given for the loan, the
lender (Mr. X) will be safeguarded if the borrower (Mr. Z) becomes insolvent since precedence
is given to security over the claims of other creditors.

What is Mortgage (Section 58)

The essential element of a mortgage is that it is a transfer of a legal interest in the property with
an arrangement for redemption i.e. endless supply of the loan, the transfer shall become void or
the interest shall be re-conveyed. The provisions pertaining to a mortgage are contained in
Section 58 of the Transfer of Property Act, 1882 (hereinafter "TPA").
Justice Mahmud observed: "Mortgage, as understood in this country, cannot be defined better
than by the definition adopted by the legislature in section 58, TPA."

Kinds of mortgage
 Simple Mortgage [Section 58(b)]
 Mortgage by Conditional Sale [Section 58(c)]
 Usufructuary Mortgage [Section 58(d)]
 English Mortgage [Section 58(e)]
 Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]
 Anomalous Mortgage [Section 58(g)]

Sorts of mortgage
Simple Mortgage [Section 58(b)]
Clause (b) of Section 58 reads:
Simple mortgage. — Where, without delivering possession of the mortgaged property, the
mortgagor binds himself personally to pay the mortgage-cash, and agrees, explicitly or
impliedly, that, in case of his failure to pay according to his contract, the mortgagee shall have a
right to cause the mortgaged property to be sold and the returns of sale to be applied, such a long
ways as may be necessary, in payment of the mortgage cash, the transaction is called a simple
mortgage and the mortgagee a simple mortgagee.
The basic components of a simple mortgage are:
1. The mortgagor probably bound himself personally to repay the loan;
2. The possession of the property isn't given to the mortgagee; and
3. To secure the loan he has transferred to the mortgage the right to have the particular
immovable property offered in case of his failure to repay.
Mortgage by Conditional Sale [Section 58(c)]
Clause (c) of Section 58 reads:
Mortgage by conditional sale. — Where, the mortgagor ostensibly sells the mortgaged property
— on condition that on default of payment of the mortgage cash on a certain date the sale shall
become absolute, or on condition that on such payment being made the sale shall become void,
or on condition that on such payment being made the buyer shall transfer the property to the
seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale: Provided that no such transaction shall be considered to be a mortgage except if
the condition is embodied in the report which affects or purports to affect the sale.
The idea of a mortgage by conditional sale (known as 'bye-bil-wafa in Islam) was acquainted by
the Muslims due with the prohibition in their religion to not take interest on the cash which is
loaned by way of loan. This kind of mortgage enabled them to realize their principal amount as
well as interest, at the same time keeping their inner voice clear.
Basic components of a mortgage by conditional sale are:
1. The mortgagor should ostensibly offer the property to the mortgagee.
2. There should be a condition on such sale that either,
• on the repayment of the debt on a certain date,
• the sale shall become void or the buyer shall transfer the property to the seller, or in
default of payment on the agreed date, the sale shall become absolute.
• The condition should be contained in the same archive.

Usufructuary Mortgage [Section 58(d)]

Clause (d) of Section 58 reads:
Usufructuary mortgage. — Where the mortgagor conveys possession or explicitly or by
implication binds himself to convey possession of the mortgaged property to the mortgagee and
authorizes him to retain such possession until payment of the mortgage-cash, and to get the rents
and profits accruing from the property or any part of such leases and profits and to appropriate
the same in lieu of interest, or payment of the mortgage-cash, or partly in lieu of interest partly in
payment of the mortgage cash, the transaction is called a usufructuary mortgage and the
mortgagee a usufructuary mortgagee.
The basic components of usufructuary mortgage are:
1. The mortgagor either conveys possession or explicitly or impliedly binds himself to
convey possession of the mortgaged property to the mortgagee.
2. The mortgagor authorizes the mortgagee till the payment of the mortgage cash is
satisfied:
• to retain such possession;
• to get the rents and profits or any part of such leases and profits arising from the property;
and
• to appropriate such leases and profits in lieu of interest, or payment of the mortgage cash,
or partly in payment of the mortgage cash.

English Mortgage [Section 58(e)]

Clause (e) of Section 58 reads:
English mortgage. — Where the mortgagor binds himself to repay the mortgage cash on a certain
date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a
stipulation that he will re-transfer it to the endless supply of the mortgage-cash as agreed, the
transaction is called an English mortgage.
Basic components of an English mortgage are:
1. There is an agreement to pay the amount on the due date. The mortgagor has to repay the
mortgage cash on the due date.
2. There is an absolute transfer of property to the mortgagee.
3. Such absolute transfer should be subject to a stipulation that the mortgagee will transfer
the property to the endless supply of mortgage cash on the agreed date.

Mortgage by deposit of title deeds (Equitable Mortgage) [Section 58(f)]

Clause (f) of Section 58 reads :
Mortgage by deposit of title-deeds. — Where a person in any of the following towns, namely,
the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government
concerned may, by notification in the Official Gazette, determine in this behalf, conveys to a
creditor or his agent documents of title to immovable property, with expectation to create a
security thereon, the transaction is called a mortgage by deposit of title-deeds.
In English Law, this kind of mortgage is called an 'equitable mortgage' rather than a 'legal
mortgage' because there is only a deposit of a record of the title without writing or without any
other additional formalities. The aim of the legislature in providing such a mortgage is to give
facilities to the mercantile local area in situations where it very well might be necessary to raise
cash without warning before any opportunity of preparing a mortgage deed can be afforded.
Subsequently, this sort of mortgage requires no writing, and being an oral transaction isn't
affected by the Law of Registration.
The basic components of this sort of mortgage are:
1. There should be a debt.
2. There should be a deposit/delivery of the title deeds.
3. There is an aim that the deeds shall be security for the debt; and
4. Territorial limitations
It is important to take note of that such a mortgage can be made exclusively in certain areas and
not wherever in India. The said limitation to certain areas means the place where the deeds are to
be conveyed and not the situation of the property mortgaged. Also, a deposit of deeds beyond
that area will neither create a mortgage nor an exchange.

Anomalous Mortgage [Section 58(g)]

Clause (g) of Section 58 reads:
Anomalous mortgage. — A mortgage that is certainly not a simple mortgage, a mortgage by
conditional sale, a usufructuary mortgage, an English mortgage, or a mortgage by deposit of title
deeds within the meaning of this section is called an anomalous mortgage.
To safeguard various customary mortgages prevailing in various parts of the nation, clause (g)
was enacted by the legislation. An anomalous mortgage is said to be a combination of two or
more mortgages.
Point of
Difference Pledge Hypothecation Mortgage
Pledge means bailment of Hypothecation is creation of charge on It is transfer of an
goods as security against movable property without delivering specific immovabl
Meaning the loan. them to the lender. as security against
Immovable (exam
land, building or a
property which is
Type of Security / Movable (Gold, Jewellery, permanently fixed
Property Stock, NSC etc. Movable (Vehicles, Stock and debtors.) earth or attached
Possession of the
security /
Property Remains with lender. Remains with Borrower. Remains with Bor
Point of
Difference Pledge Hypothecation Mortgage
Gold Loan, Advance
against NSCs, Advances
against goods (also given Vehicle Loans, Advances against stock
Examples of Loan under hypothecation) and debtors Housing Loans
Parties Pledgor and Pledgee Hypothecator and Hypothecatee Mortgagor and M
Since lender does not have physical Mortgagee can file
Remedy for possession, he can file a suit to take court to take posse
default by Lender can sell the asset to possession and dispose it off to recover mortgaged proper
borrower recover debt amount. debt amount. it to recover debt a
Section 2 (n) of Secruitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest
(SARFESI) Act, hypothecation is defined
as “a charge in or upon any movable
property, existing or future, created by a Section 58 of the T
Section 172 of the Indian borrower in favour of a secured creditor Property Act 1882
Contract Act defines without delivery of possession of the mortgage as “the t
pledge as “The bailment of movable property to such creditor, as a an interest in spec
goods as a security for the security for financial assistance, and immovable proper
payment of a debt or includes floating charge and purpose of securin
performance of a crystallization into fixed charge on of money advance
Legal  definition promise”. movable property” loan”.

CONCLUSION
In conclusion, it can be said after referring to several important caselaws and carefully analyzing
Section 58 that mortgage is characterized as an express transfer of an interest in immovable
property as collateral for a loan. The main feature of a mortgage is that it is a transfer of a legal
interest in the property with an arrangement for redemption, and that means that the transfer will
become void or the interest will be re endless supply of the debt. Several types of mortgage and
their subsequent features were discovered above. The subsequent key differences between pledge
and hypothecation were dealt later on with the former being bailment as to procure loan and the
latter creating charge without actually delivering the property in hands of the creditor.

Q.2 In light of mortgage explain the remedies of Marshalling, Contribution,

Subrogation.
 INTRODUCTION
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India .The Rule of Marshaling and Contribution are
ideas encapsulated in the Transfer of Property Act, 1882 ('TOPA"). Section 81 and 82 of TOPA
manages the Rule of Marshaling and contribution individually. Before the supersession of the
rules are talked about, an understanding of the actual ideas is basic.

What is Rule of Marshaling?

Marshaling signifies "to orchestrate" and the Rule is first presented in TOPA under Section 56.
Section 56 might be made sense of in the accompanying way:
1. There should be an owner of two or more properties,
2. He should mortgage two or more of his properties to any person,
3. Thereafter, he should sell one or more of these properties to any person other than the one
he mortgages the properties to. The deal should incorporate no less than one property that has
been mortgaged by the owner,
4. The buyer of such properties is qualified for have the owner fulfill the mortgage-debt out
of the property or the properties not sold him before he buys the property. This can be dependent
upon an agreement expressing the opposite,
5. The rule of marshaling shouldn't be so practiced to bias the rights of the mortgagee, any
persons asserting under the mortgagee, or any person who has obtained an interest with thought
in any of the properties.

In short, the Rule of Marshaling gives the buyer, in the above case, the option to demand from
the owner that the property be free from all possible encumbrances before the buyer buys the
property.
Section 81 likewise takes on the Rule of Marshaling yet in cases of Mortgages. Section 81 might
be grasped in the accompanying way:
1. There should be an owner of two or more properties. He should mortgage two or more of
these properties to any person,
2. He must then mortgage one or more of these properties to someone else,
3. The ensuing mortgagee is qualified for have the mortgage-debt of the prior mortgagee
fulfilled out of the properties not offered to him. This can be dependent upon an agreement
expressing the opposite as well,
4. Similar to Section 56, the rule of marshaling here also shouldn't be so practiced to bias
the rights of the mortgagee or any person who has procured an interest with thought in any of the
properties.
Marshaling, in this specific situation, might be made sense of by an outline. On the off chance
that the mortgagor mortgages three of his properties X, Y and Z to An and then mortgages X to
B, B is qualified for have the mortgagor fulfill his debt from the deal continues of the properties
Y and Z and provided that the said deal continues miss the mark, might property X at any point
be sold.
The regulation of Marshaling is in this manner in light of the rule that a creditor who has the
method for fulfilling his debt out of a few assets will not, by the activity of his right, bias another
creditor whose security contains only one of those assets.

Case law:
 Barness v. Rector
Here W mortgaged two of his properties An and B to X. W then mortgaged property A to Y and
property B to Z. Here, the court held that X's mortgages will be apportioned proportionately
between properties An and B and the overflow of A will go to Y and excess of B will go to Z.

What is Rule of Contribution?

The Rule of Contribution connects with the aggregate contribution towards a mortgage debt by
mortgagors. It gives one mortgagor the option to have the other's property add to the release of
the mortgage debt. At the point when a creditor has a solitary case against a few debtors, he can
understand the debt from any of them, yet according to the rule of contribution he can guarantee
contribution to the debt by different debtors, with the goal that the weight could fall on all
similarly. The rule is typified under Section 82 of TOPA and might be partitioned according to
the accompanying:
Mortgaged Property Belonging to two or more persons
This depends on the accompanying fundamentals:
1. A mortgaged property should have a place with two or more persons in light of a
common loan,
2. Each mortgagor, in nonappearance going against the norm contract, is obligated to
contribute according to his portion of the mortgage,
For instance, X, Y and Z mortgaged their properties to D mortgaging a common debt. Presently
on the off chance that D can recuperate the whole debt from the properties mortgaged by X, X is
qualified for demand Y and Z to contribute their portion of the debt out of their mortgaged
properties. The Privy Council has clearly made sense of it in Kampta Singh v. Chaturbhuj. That's
what the Privy Council held assuming that a person possesses one property subject, with the
property of different persons, to a common mortgage, and has taken care of the mortgage debt,
he is qualified for call upon the owners of the other property to bear their legitimate proportion
of the weight.

At the point when One Property is Mortgaged First and of course mortgaged with another
Property
At the point when the mortgagor has two properties and he mortgages one to get one debt and
then mortgages both to get another debt, assuming the former debt is paid out of the former
property, every property is then at risk to add to the last debt subsequent to deducting how much
the former debt from the worth of the property from which it has been paid.

Case law
 Bohra Thakur Das v. Collector of Aligarh,
the mortgagor mortgaged the town of Kachaura to one, Nand Kishore. He again mortgaged
towns, Kachaura and Agrana, to Nand Kishore. The Plaintiffs bought the equity of redemption
from Agrana. The main mortgagees bought Kachaura by a pronouncement. The offended parties
sued and fought that the principal mortgagees were obligated to pay the proportionate portion of
the debt for redemption of the subsequent mortgage. The court held that since the entire of
Kachaura was gobbled up by the principal mortgage by the pronouncement, the whole weight of
the subsequent mortgage fell totally on Agrana. The Privy Council, in advance, overruled the
choice of the court and held that the principal mortgagees would need to add to the subsequent
mortgage, as they bought Kachaura.

 Sesha Iyer v. Krishna Iyenger,

 the circumstance was very unique. Two properties X and Y were mortgaged to R and
properties X and Z were mortgaged to P. R executed his announcement on the mortgage by offer
of X. P then sued to enforce his mortgage. Be that as it may, X had proactively been sold. P
looked to sell Z and additionally demanded contribution against Y. That's what the Court held on
the off chance that the offended parties had purchased piece of the mortgaged property thusly
sold under R's declaration, they could by taking care of the debt and saving the property from
deal, have gained a right to contribution by getting a lien on the other property. In any case, since
the offended parties sat idle, no right to contribution emerged.

What is Rule of Subrogation

Meaning of Doctrine of Subrogation
Subrogation can be characterized as a legal teaching in which one person removes the rights of a
creditor against their debtor. Any person (aside from the mortgagor) who has an interest in the
mortgaged property or in the equity of redemption, is qualified for be subrogated instead of
mortgagee. Such sort of individuals have legal or statutory right of being substituted instead of
mortgagee for reasons for redemption, foreclosure or deal. Legal right of subrogation emerges by
activity of law.
Under Section 92 legal subrogation might be asserted by following persons :
(a) Puisne mortgagee
b) Co-mortgagor
(c) Surety
(d) Purchaser of equity of redemption
(a) Puisne mortgagee:
Where a similar property is mortgaged progressively in favor of a few persons, all such persons
are qualified for recover their particular prior mortgage. A puisne or ensuing mortgagee is
qualified for recover his prior mortgage by making installments. At the point when he does so he
replaces that prior mortgagee.
(b) Co-mortgagor:
Co-mortgagor is co-debtor. In the debt got by a mortgage, he is a sharer of the debt and his
property is a piece of the entire mortgaged property. Thus, he would simply be at risk to the
degree of his own portion of debt
(c) Surety:
In a mortgage, there might be a person who stands as guarantee for reimbursement of loan in
case mortgagor defaults to do as such. Such guarantee would be obligated to reclaim the
mortgage under Section 91.
(d) Purchaser of Equity of Redemption
The purchaser of equity of redemption is additionally qualified for be legally substituted or
subrogated. However, this subrogation might bring about some disarray. It is important to take
note of that equity of redemption has been viewed as 'property' of mortgagor which he might
appoint or sell.

Similarities and Differences between Rule of Marshaling and Rule of Contribution

Similarities and Differences between Rule of Marshalling and Rule of Contribution
Supersession of the Rule of Marshaling over the Contribution
The provision to Section 82 signifies that the rule of Marshaling under section 81 supplants
Contribution under Section 82. The Hon'ble Madras High Court has even held it to be all around
settled that the Right to Contribution is constrained by the Right of Marshaling. This might be
best grasped by a model:
The justification for why marshaling supplants contribution is on the grounds that the last
mortgagee is offered a chance to make the mortgagor release the mortgage debt from other
mortgaged properties first before he understands the mortgage debt from the properties
mortgaged to the person who holds the right of marshaling. Nonetheless, if subsequent to
practicing the right of marshaling, the sum acknowledged from the other properties is
inadequate, the last mortgagee should then contribute as his is the main mortgage debt left to be
understood.

Conclusion
Marshaling is the right of resulting mortgagees while contribution is regarding mortgagors.
Marshaling is on the off chance that a creditor has various assets to understand his debt, he
should initially seek after the numerous assets as opposed to prejudicing the creditor who is
gotten simply by one asset. Though in contribution all the co-mortgagors who have taken a debt
by mortgaging their properties need to make contributions towards debt proportionately
according to their particular offers. The Proviso to Section 82 of TOPA gives priority to the
former over the last option.
"Subrogation" additionally characterized in Dan B. Dobb's Law of Contract, which peruses as
follows; "Subrogation basically implies replacement of one person for another; that is, one
person is permitted to stand in the shoes of another and attest that person's rights against the
respondent. Genuinely, the case emerges in light of the fact that for some legitimate explanation,
the subrogation offended party has paid a debt claimed by the respondent."

Q.3 Comment upon the rights and duties of lessor and lessee under the Transfer of
Property Act, 1882.
Introduction
The Transfer of Property Act is an Indian civil statute passed in the year 1882 with the need to
govern and regulate property transfers in India. Lease is an extremely common term that is
utilized in managing land or property. So assuming a person is interested in leasing his level or
his property then that person will select renting it out.
What is Lease (Section 105, Transfer of Property Act)
The expression "lease" is characterized under Section 105 of The Transfer of Property Act, 1882
and that's what it expresses
"A lease of resolute property is a transfer of an option to appreciate such property, made for a
specific time, express or suggested, or in unendingness, with regards to a cost paid or guaranteed,
or of cash, a portion of harvests, administration or some other thing of significant worth, to be
delivered occasionally or on unambiguous events to the transferor by the transferee, who
acknowledges the transfer based on such conditions".
There are 4 terms that we will run over this article which are connected with lease of ardent
property and they are as per the following:
• Lessor-The transferor of the undaunted property is called lessor.
• Lessee-The transferee of the steady property is called lessee.
• Premium-The premium is the cost paid for getting a lease of unflinching property.
• Lease The cash or administration that is delivered is known as lease.

What are the Elements of a substantial lease

For a lease to be substantial it has specific requirements that are required to have been satisfied
and they are as per the following:
1. Competency of Lessor and Lessee-For a lease to be substantial both the lessor and the
lessee should be sufficiently capable to comprise an agreement. For a lessor and lessee to be
skillful they should be:
• The lessee should be a major.
• The lessor should hold the title and authority to make the lease.
• Both the lessor and lessee should be of normal brain.
2. Subject matter-The topic of the lease should be relentless property like a level, house or
loft.
3. Consideration-There should be a form of thought engaged with the agreement. Without a
thought it wouldn't be a legitimate lease rather it would be treated as a gift. The thought is
generally as exceptional in addition to lease yet in some cases it tends to be premium alone or
lease alone.
4. Duration-A lease for a steadfast property will be made for a very long time. In case the
span surpasses a year i.e a year or more then a lease understanding must be made by an enlisted
instrument according to Section 107 of the Transfer of Property Act, 1882.
5. Delivery and Acceptance-The lessor should convey the agreement and the lessee should
acknowledge the agreement with next to no form of excessive impact, compulsion. When the
lessee acknowledges the agreement, the lease becomes legitimate.
Rights and Liabilities of a Lessor
We definitely realize who is a lessor, so legally a lessor is conceded sure rights and certain
liabilities. Section 108A discussions about the rights and liabilities of a lessor, so we should
further break down the rights and liabilities of a lessor.
Rights of a lessor
1. Right to growths If during the tenure time frame or during the term of the occupancy any
further growth, aggregation or expansion is made in the property then the lessor is qualified for
such property. Such expansion can be normal or by the cost of the lessee however after the end
of the tenure time frame, the lessee should convey the title to the lessor.
2. Right to gather lease The lessor has the option to gather lease or any form of thought as
referenced in the agreements of the agreement from the occupant with no form of interferences.
Liabilities of a lessor
1. Duty of revelation The lessor will undoubtedly unveil any form of a material deformity in
the property. There are two sorts of deformities:
• Inactive imperfection Latent deformity can't be discovered reasonably or through
examination by the lessor.
• Evident deformity Apparent imperfection can be effortlessly discovered through some
review.
So essentially a lessor will uncover any clear imperfection to the lessee and it is fundamental to
unveil such deformities as they slow down the pleasure in the property by the lessee.
2. To give ownership The lessor should give ownership of the property to the lessee on
lessee's solicitation. Be that as it may, this liability possibly emerges when there is a solicitation
for the lessee.
3. Covenant for calm satisfaction The lessee has every one of the rights to partake in the
property. It is the duty of the lessor to not bring about any form of interferences during the tenure
time frame. The Madhya Pradesh HC expressed that activities, for example, actual impedance or
direct obstruction in the premises lead to a break of satisfaction and interferences.

Rights and liabilities of a lessee

Very much like a lessor, a lessee has additionally a few rights and liabilities which are conceded
to him by the Transfer of Property Act. So presently we will break down the rights and liabilities
of a lessee.
Rights of a lessee
1. To charge for fix If the lessor neglects to make any fixes in the property which the lessor
will undoubtedly do in that case the lessee can make such fixes by his personal costs. In the
event that a lessee makes such fixes by his personal costs, in that case, it is the right of the lessee
to deduct the expense of such fixes from the lease or the lessee may just charge the lessor for
such fix.
2. Right to eliminate apparatuses The lessee has the option to eliminate any apparatus in the
property during the time span of the lease, be that as it may, after the end of the lease deed the
lessee should leave the property in the condition in which he got it. In case the lessee neglects to
do as such, the lessor can sue the lessee.
3. Right to dole out his interest-The lessee can sub-lease the property or the lessee can
totally transfer his interests. Be that as it may, in the event that the lease deed limits a lessee to
relegate his interest, the lessee is restricted to do so and even after the transfer of his rights, the
lessee is as yet dependent upon every one of the liabilities connected with the lease deed.
4. Right to have advantages of harvests When the lease is of unsure span then, in that case,
the lessee or his/her legal delegate has been given the option to acquire benefits from every one
of the yields developed by them.

Liabilities of a lessee
1. Duty to uncover material realities The lessee will undoubtedly inform the lessor of any
material truth which the lessee knows about and the lessor isn't. In case the lessee doesn't
uncover such reality and the lessor experiences any misfortune then the lessee will undoubtedly
repay the lessor.
2. Duty to pay lease The lessee will undoubtedly pay the lease or the premium to the lessor
or his representative in the appropriate time and legitimate spot as chosen by the lease deed. In
case the lessee neglects to pay his/her lease then, in that case, the lessor can discharge the lessee
on the ground of non-installment of lease or document a suit for unpaid debts of lease.
3. Duty to keep up with the property-The lessee will undoubtedly keep up with the property
in a great shape as it was the point at which he was given the ownership of the property. The
lessor or his representative are permitted to examine the property at the sensible ground. Just the
progressions brought about by compelling forces can go about as an exemption for this liability.
4. Duty to pull out If the lessee becomes mindful that any person has attempted or is
attempting to harm the rights of the lessor or the title of the lessor is jeopardized then, in that
case, the lessee should pull out to the lessor.
5. Duty to involve the property in a sensible way The lessee should involve the property in a
way as though it was his/her own property.
6. Duty not to raise any long-lasting construction A lessee can't erect any long-lasting
designs with the exception of horticulture without the assent of the lessor.
7. Duty to restore ownership After the assurance of the lease, the lessee should restore the
ownership of the property to the lessor. On the off chance that the lessee doesn't leave even after
the expiry of the notification, the lessee then will undoubtedly pay the harms.

Conclusion
In conclusion, after referring to the above case laws and carefully analyzing Section 107 of the
Transfer of Property Act, 1882, we can establish that lease is the transfer of property between
two individuals for a certain time period specified. We subsequently discussed the rights and
liabilities of both lessor and lessee who are integral and indispensable part of a lease deed.
Through the rights and liabilities, it is clear that a lessor must disclose facts and shall avoid
interruptions while the lessee is leased the property. A lessee, on the other hand, is bound to take
reasonable care of the property and at the same time pay his/her rent. A lease of a property is
certainly different from a sale of a property and this article clarifies that aspect of property law.

Explain the nature and scope of actionable claims under The Transfer of Property
Act 1882.
Introduction
The Transfer of Property Act was enacted in the year 1882 with the objective of codifying the
laws relating to transfer of properties. This Act is not exhaustive in nature, as it does not cover all
kinds of transfers, or all types of properties. The Transfer of Property Act, 1882 does not
incorporate all the rules relating to the different modes of transfer, neither does it include the
transfer of all properties. There are other Acts which codify the laws regarding different types of
property such as the Sale of Goods Act, 1930.
This Act also does not deal with transfers by operation of law, which includes transfers in
execution of a Court’s decree. [1] This Act only covers inter vivos transfers which are transfers
between living persons by act of parties through express or implied contracts. Also, the Act
mainly deals with transfer of immovable properties, but some of the provisions of the Act are
also applicable to movable properties.
What is Actionable Claim?
Actionable claim is characterized in Section 3 of the Transfer of Property Act, which was
remembered for the Act by the Amending Act II of 1990. Actionable claim is an intangible
movable property, and its transfer is managed in Chapter VIII of the Act.
According to Section 3 of the Act, actionable claim implies:
1. Claim to an unsecured debt
2. Beneficial interest in a movable property
These are the two claims that are perceived in the Courts of law as affording alleviation. There
are other sorts of claims additionally that afford alleviation and are actionable in the Courts of
law, for example, got debts and tortuous suits like slander or annoyance. Yet, those are not
categorized under the significance of actionable claim. The term actionable claim just covers the
previously mentioned two kinds of claims.

Claim to an Unsecured Debt

Unsecured debt alludes to all monetary obligations of a specific amount, and that isn't covered by
any security in that frame of mind of mortgage, promise or hypothecation. This isn't simply
restricted to the idea of loans forwarded by a creditor to an essential debtor. It reaches out to a
wide range of monetary obligations, for example, lease or installment marked down of property
and so on.
The three necessities for an exchange to qualify as unsecured debt are:
1. Monetary obligation
2. No security
3. Certainty of amount of money obligated

According to Sunrise Associates v. Govt. of NCT of Delhi , an actionable claim might be

existent in present, building, restrictive or contingent. Thus, the three kinds of unsecured debt
are:
1. Existent Debt
2. Accruing Debt
3. Conditional or Contingent Debt
Beneficial Interest in Movable Property
On the off chance that a person has the privilege to have a movable property, it is said that he has
beneficial interest in that movable property. Yet, on the off chance that that property isn't in his
control, then he has an actionable claim. Thus, the necessities to comprise this kind of actionable
claim are:
1. Movable property;
2. The movable property isn't in that frame of mind of the claimant;
3. The claimant has the option to have that movable property.
For instance, assuming A sells his vehicle to B and B has finished his obligation, that is to say, B
has forwarded the thought from his side, then B has the privilege to have the vehicle; yet in the
event that B can't gain ownership, B can move toward the Court to claim this belonging.

Yet, assuming the movable property is now in the ownership of the claimant, either genuine or
useful, then he can't claim ownership. In this way, assuming that in the past model, A had given
the vehicle keys to B, then one might say that B has valuable belonging, and consequently, B
can't move toward the Court to claim ownership.

Moreover, the option to have of the Claimant should be a legal right, which is perceived by the
law. For example, if a person of unstable psyche or a minor, A sells 100 sacks of wheat (or some
other movable property) to Mr. B, and Mr. B likewise forwards the thought from his side, that is
Mr. B satisfies his obligations, then likewise Mr. B can't claim ownership.
This is so in light of the fact that Mr. B doesn't have a legal right to have, as A doesn't have the
ability to contract, and the understanding between An and Mr. B is void stomach muscle initio.
Presently, since the option to have of Mr. B isn't perceived legally, so this isn't covered under the
heading of actionable claim.

Cases of Actionable Claims

A few instances of actionable claims are:
1. Claim for back payments of lease.
2. Claim for money due under insurance contract.
3. Claim for return of sincere money.
4. Right to get back the buy money when the deal is saved.
5. Right of an accomplice to sue for a record of the broke down organization firm.
6. Right to claim benefit under an agreement for the acquisition of products.
7. Right to get the returns of a business.
In these cases the amount for which the suits are documented are sure and unequivocal. In this
way, such claims are transferable under actionable claims.

Claims not covered under Actionable Claim

Different kinds of claims are not covered under the head of actionable claim, and consequently
can't be transferred under the Transfer of Property Act.
The option to claim harms, whether emerging out of a tortuous or legally binding liability are not
actionable claims. This right is certainly not an unsecured debt, despite the fact that it is a
monetary obligation due to two reasons.
It, first of all, is a questionable amount of money, and second, it's anything but a piece of the
original exchange. Actionable claim under the category of unsecured debt just covers the amount
in the original exchange. Thus, it covers the chief amount and the interest upon that head, as
these are of a specific amount. Though, harms is dubious, and consequently, doesn't go under
actionable claim.

On account of Jai Narayan v. Kishun Dutta , it was held that a claim for mesne profits is
certainly not an actionable claim, as mesne profits are unliquidated harms and it's anything but a
claim to any beneficial interest in moveable property, not in the belonging, either genuine or
helpful, of the claimant. Subsequently, it was a "simple right to sue" and not an actionable claim.

Rights like copyright , patent or brand name are not actionable claims since they as of now vest
in the person who has it. These have their own governing Acts and are not transferable as they
are the protected innovation of the claimant, and some other person can't be permitted to claim
that.

Unfit Transferees of Actionable Claim

Section 136 of the Transfer of Property Act, 1882 pronounces specific gatherings who can't
bargain in that frame of mind of actionable claims. Section 136 states that-
"No appointed authority, legal specialist or officer associated with any Court of Justice will buy
or deal with, or specify for, or consent to get any portion of, or interest in, any actionable claim,
and no Court of Justice will enforce, at his case, or at the occasion of any person claiming by or
through him, any actionable claim so managed by him as aforesaid."
CONCLUSION
In conclusion, after going through the above case laws and a careful analysis of Section 3 of the
Transfer of Property Act, we can establish that actionable claim is an intangible movable
property, and it is transferable. It mostly alludes to the sorts of claims that can be recovered
through procedures in Courts. They can be claimed on two conditions, first being unsecured debt
and secondly beneficial interest in movable property. Such claims can be transferred to another
person, however certain individuals are banned from becoming transferee of actionable claims.
This bar has been forced to keep up with the honesty of Court procedures. The idea of actionable
claims is a profoundly important one that all law understudies should be clear with.

Explain the requirements of Gift and compare with Will with the help of
illustrations and provisions of law.
Introduction
Gifts and wills both are sure documents that are utilized while transferring a property starting
with one person then onto the next. Albeit both these documents are utilized for comparative
purposes, they are not quite the same as one another. A gift is more or less a prompt cycle that
doesn't require some investment to get ready while a will is more of an insightful interaction that
requires some investment.

Concept of gift
A gift in its general sense implies a form of remuneration or a badge of appreciation given at
weddings, birthday celebrations, and so on. Concerning law, in any case, a gift is considered as a
transfer of ownership of property starting with one person then onto the next.

Provisions of a legitimate gift under Transfer of Property Act, 1882

Every one of the provisions of a gift are referenced in the Transfer of Property Act, 1882.
According to Section 122 of the Act, a gift is a transfer of movable or immovable property which
is existing. These transfers ought to have substantial thought and should be done intentionally.

ESSENTIALS OF A VALID GIFT

There ought to be a donor and donee
The person who transfers the gift is known as the donor and the person who acknowledges the
gift is known as the donee. The donor ought to be an equipped person and ought to have the
ability to go into an agreement. While, the donee need not be equipped to contract. The donee
can likewise be a minor. A gift made to the overall population is invalid be that as it may, the
donee can be more than one person.

Transfer of ownership
The donor ought to be unquestionably the owner of the property and ought to show interest in the
property. The donor ought to reserve a privilege to transfer the property.

Movable or immovable property

The property can be movable, immovable, or of some other kind. Nonetheless, the main
condition is that the property ought to be a current property and ought to fall under Section 5 of
the Act while making the gift. A gift of a past or future property will be considered void.

Acknowledgment of the gift

The gift ought to be acknowledged by the donee. Without acknowledgment, the gift will be
considered void. In the event that the donee is a minor or not equipped to contract, then the gift
ought to be acknowledged by a person for his sake, for instance, a parent.

Transfer without thought

The gift ought to be given as appreciation. It ought to be transferred with next to no thought. Any
thought given for the gift will be considered as a trade and not a gift. In Padam Chand and Anr. v
Lakshmi Devi (2010), the Court held that a gift is a deliberate transfer of property and ought to
be given with practically no thought.

Provisions of a substantial gift under the Muslim Law

Under Muslim law, a gift is known as Hiba. Hiba is excluded from the provisions of the Transfer
of Property Act 1882, it is governed by the Muslim Law. The Muslims can partition their
property in different ways and one of those ways is through a gift which is known as Hiba. Hiba
under Muslim Law is the prompt transfer of property starting with one person then onto the next
with practically no thought.
.
Sorts of gifts
The sorts of gifts are as per the following:
• Void gifts
Void gifts are those which are utilized for illegal purposes, an inept made by a person to contract,
which is contained future as well as existing property, and so on.
• Bury vivos
Bury vivos is a Latin word that implies, while alive. Subsequently such gifts are given during the
presence of the donor.
• Cumbersome gifts
Grave gifts are those which are made with an obligation forced on the donee.
• By and large gifts
Out and out gifts are those, which are free of any sort of limitations.

Concept of will
A will is a legal document where a person specifies how he/she will disperse the property in the
afterlife. The Indian Succession Act, 1925, makes reference to the provisions in regards to a
substantial will.
Provisions for a substantial will under the Indian Succession Act, 1925
Section 2(h) of the Indian Succession Act 1925 states that a will is an announcement of the aim
of a person with respect to his property, resources. The Act makes reference to provisions for the
Hindus, Buddhists, Jains, and Sikhs. Muslims are governed according to the Mohammedan Law.
Section 59 of the Act specifies that a person who is of a sound psyche and has finished 18 years
old can make a will. The Section further expresses that a person who is periodically of sound
brain or sometimes in an inebriated state can make a will when he/she is in a sound and sober
state separately.
Section 72 of the Act specifies that the will ought to be written in such a manner, that the aim of
the person spreading the word.

Essentials of a substantial will

Legal Declaration
A will is a legal statement of the person proposing to circulate his/her property. It's anything but
an agreement or a settlement.

The aim of the testator

A testator is a person making the will. The will is a statement of the cravings or goal of the
person to make the will. The will ought to be legal. The person causing the will to ought not be
undermined or forced into making a will. This will make the will void and illegal.
Regarding the property
The testator can make their very own will property. The person can't make a will out of
something which he doesn't have.
Mark and subtleties of recipients
The will ought to be endorsed by the testator and the date of the will ought to likewise be
referenced. Further, the subtleties of the recipients of the will ought to likewise be referenced.

Property of minor
In case, a minor is a recipient, then he/she ought to select a gatekeeper to deal with the property
till the minor accomplishes turns 18.

On account of Gnanambal Ammal v. T. Raju Ayyar (1950), it was held by the Court that the
primary concern of perception while causing a will to ought to be, the aim of the testator.

Sorts of will
The sorts of wills are as per the following:
Contingent wills
The kinds of wills which become on the occurrence of a specific occasion or contingent, are
known as contingent wills. Such will become void on the non-occurring of the occasion.

Joint wills
Joint wills are those which are ready by two or more persons.

Concurrent wills
At the point when a person composes two or more wills, one for the removal of all the
immovable property and the other for the removal of all the movable property, such wills are
known as concurrent wills.

Comparison between gift and will

Upon understanding the concept and essentials of both gift and will under both Hindu and
Muslim laws, so the difference between them are laid down below.

Points of    Distinction                 A GIFT         A WILL

Registeration A gift expects to be stepped and A will require not be stepped or

registered. registered.

Type A gift is a transfer of property which A will is a transfer of property which

is done right away. is done after the demise of the person
making the will.

Renouncement A gift deed can't be revoked. The A will can be changed or revoked as
person to whom a gift is given turns long as the person in whose name the
into indisputably the owner. will is made, is alive.

Impact A gift comes into effect A will happen after the demise of the
immediately after it is prepared. person making the will.

Nature A gift is prepared by any person A will is ready according to the

who is of sound mind and has family as getting dispersed inside the
attained the majority age. family is going.
 Could both these A gift can be challenged if it is A will can be tested in the event that it
documents at any point proved that the gift was not as per is in no less than a long time from the
be tested the wish of the donor. date of the demise of the person.

 
Conclusion
In conclusion, after going through the above case laws and a careful analysis of Section 122,
Transfer of Property Act and Section 2(h), Indian Succession Act we can establish that will could
make debates among relatives who are not referenced in that frame of mind, in such a case a gift
deed can be utilized. Essentially, a gift can be procured right away so it can't be changed in that
case, a will is a superior choice as it isn't obtained right away and can be changed. Subsequently,
both these documents have their own advantages and disadvantages and are similarly important
for transferring the resources. So it really depends on the executor to pick between these two.

Explain the rule against perpetuity in light of transfer of property.

Introduction

Section 10 of the Transfer of Property Act expresses that any condition limiting the transferee's
force of distance is void. Section 14 of the T.P act, which incorporates the 'Rule against
Perpetuity,' disallows demeanors that will generally produce future remote interest.
Notwithstanding, the rule against remoteness of vesting would be a superior name for it.

Meaning

The rule against unendingnesses was reported in Whitby v Mitchell. Perpetuity alludes to an
indefinite term of time. The rule against perpetuity is a rule that restricts a transfer that makes
property inalienable for an unending amount of time or forever. At the point when a property is
transferred so that it becomes untransferable in the future for an indeterminate timeframe, the
property is never-endingly restricted. This demeanor would comprise a long-lasting transfer.
Perpetuity can foster in any demeanor in two different ways: (a) by removing the transferee's
ability of distance, and (b) by creating future remote interest.
 The leading case is Cadell Vs. Palmer: A trust was laid out for a length of 120 years assuming
that the 28 referenced persons or any of them ought to experience that long, and from the
determination of that term for a further time of 21 years, and after the conclusion of the two
terms, to serve persons to be determined. The House of Lords ruled that the transfer was lawful
for individuals who were there at that point and for the following 21 years.

Delineations

• A passes property to B for life, and then to B's most memorable unborn kid, with no
temporal cutoff on the vesting of property. The transfer is absolutely legal, and the property will
pass to him the second he is born.

• A gives property to B for life, and then to B's most memorable kid when he arrives at the
age of 18 years. B is alive upon the arrival of the transfer, however he doesn't have a youngster.
In this present circumstance, when B's most memorable youngster is born, the property doesn't
pass to him until he arrives at the age of 18. In the event that he bites the dust before reaching the
age of 18, the property returns to the transferor or his main beneficiaries, by and large.

• A transfers property to B for life, and then to B's most memorable kid when he arrives at the
age of 25. The transfer is invalid and void since the property's vesting is postponed past B's
minority.

Object of Rule against Perpetuity

The objective of the rule against perpetuity is to guarantee the free and dynamic dissemination of
property for the purpose of exchange and trade as well as the improvement of property itself.
Property circulation is in the interest of society and is additionally expected for its more
beneficial satisfaction. A transfer that makes property inalienable for a lengthy amount of time
 hurts the interests of its owners, who can't sell it even in the midst of desperate need or for a
more prominent cost. It is likewise a misfortune to society since when property is passed down
starting with one age then onto the next inside a single family, the general public overall is
denied of any advantage from it. Free and visit removal guarantees healthy dissemination of
property in the public eye. Rule against perpetuity is additionally founded on expansive
principles of public arrangement.

Section 14 of T.P Act

Section 14 of the T.P Act expresses that in a property transfer, interest vesting can't be deferred
past the existence of the last preceding interest in the living person or persons and the minority of
the possible beneficiary. The essentials of the rule against perpetuity as given in this section are
as per the following:

1. There is transfer of property

2. The transfer is for the ultimate advantage of an unborn person who is given outright
interest

3. The vesting of interest in favor of ultimate beneficiary is gone before by life or restricted
interest of living person or persons.

4. The ultimate beneficiary should appear before the passing of the last preceding living
person.

5. Vesting of interest in favor of ultimate beneficiary might be delayed exclusively up to the

life or daily routines of experiencing persons in addition to minority o ultimate beneficiary;
however not past that.

Maximum remoteness of vesting

 Under section 14 the maximum permissible remoteness of vesting is the existence the last
preceding interest in addition to minority of the ultimate beneficiary. Accordingly for instance,
property might be transferred to A for life and then to B for life and then to UB (Ultimate
Beneficiary) when he attains the age of majority. An and B holds property for their lives in a
steady progression after the passing of B in spite of the fact that it ought to vest in the UB right
away at the same time, under this section the property might be permitted to vest in the UB when
he attains the age of majority.

Ultimate beneficiary in mother's womb

Where the ultimate beneficiary is in the mother's womb, for example a "youngster en adventure
sa simple," the most recent term up to which vesting might be delayed is the minority in addition
to the period during which the kid continues in the mother's womb. It ought to be underlined that
minority is determined from the day of worldly birth, albeit a youngster in the mother's womb is
a skillful person for the reasons for being a transferee. In India, the maximum conceivable
remoteness of vesting would, therefore be as under,

Maximum permissible remoteness of vesting = life of the preceding interest + time of

development of ultimate beneficiary + minority of the ultimate beneficiary.

Hence, as far as possible fixed for deferring the vesting of interest is the life or lives in presence
at the date of transfer in addition to the minority of ultimate beneficiary in addition to the time of
growth gave development exists, for example the ultimate beneficiary is in mother's womb at the
passing of the last person.

Contingent Interest
Section 14 permits the ultimate beneficiary to defer the vesting of his interest until he arrives at
the age of majority. In other words, he doesn't claim the property until he arrives at the age of
majority. Between the demise of the last person and the attainment of the ultimate beneficiary's
majority, the ultimate beneficiary has a contingent interest that becomes vested upon his
attainment of majority.

Where the UB is as of now born at the passing of the last person yet doesn't make due to procure
majority, for instance, kicks the bucket at fifteen years old, the interest doesn't vest in him and so
returns to the transferor or his legal beneficiaries assuming the transferor is dead at that point.

Special cases for Rule against Perpetuity

The rule against perpetuity isn't appropriate in the following cases:-

(a) Transfer to support public:-

The rule against perpetuity doesn't matter when property is sent to support general society in the
development of religion, information, trade, wellbeing security, or some other point beneficial to
mankind.

(b)Personal agreement:-

Personal agreements that don't comprise a property interest are not expose to the rule against
perpetuity. The rule against perpetuity just applies to property transfers. The rule can't be applied
assuming there is no transfer of property, for example no transfer of interest. Contracts are
personal agreements, regardless of whether they pertain to property rights and obligations. It
can't, for instance, apply to a pre-emption contract. Likewise, where the shebaits of a sanctuary
appointed a Pujari from a certain family to perform strict administrations in the sanctuary under
 personal agreement, the agreement was lawful in light of the fact that the court determined that
since it was personal agreement, it was not expose to rule against perpetuity.English Law vs
Indian Law

English Law Indian Law

a) The period is a day to day existence, or quite
a few lives in presence in addition to 21 years
thereafter.
b) 21 years are permitted in gross without
reference to the infancy of any person.
c) The time of Gestation ( 9 months duration )
might be added at the two finishes of
perpetuity period
a) It is life or lives in presence on the date of
transfer in addition to the time of minority.
b) The period is the minority of the person to
whom in the event that he attains full age the
interest made is to have a place.
c) It can't be added toward the finish of the
perpetuity time frame

CONCLUSION

Write short notes on ANY TWO of the following:

a) Doctrine of Part Performance.
Doctrine of Part Performance of Contract is contained in Section 53-An of the Transfer of
Property Act, 1882 (hereinafter alluded to as 'TPA'). Section 53-An of the TPA was added to the
rule book in the year 1929 and is a changed form of the equity principle of part performance
which got created in England in the case of: Elizabeth Maddison V/s John Alderson, (1883) 8
App. Cases 467.

The following hypothesizes are sine qua non for basing a claim on Section 53-An of the TPA:
1. There should be a contract to transfer for thought any immovable property.
2. The contract should be in writing endorsed by the transferor, or by somebody for his
sake.
3. The writing should be in such words from which the terms important to understand the
transfer can be ascertained.
4. The transferee must in part performance of the contract claim the property, or, of any part
thereof.
5. The transferee probably done some act in furtherance of the contract.
6. The transferee probably performed or be willing to perform his part of the contract.
Settled law Section 53-An of the TPA presents a not willing no right on a party to perform his
part of the contract. A transferee needs to demonstrate that he was really prepared to perform his
part under the contract.

In the question of: WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr. O.P. Kohli and Ors, CS
(OS) No. 2128/2015, High Court of Delhi, Date of Decision: 03.08.2015 (Coram: Valmiki
Mehta, J.), it was held that:
That by righteousness of the revision achieved to Section 53-An of the TPA with impact from
24.09.2001 by the Act 48 of 2001, an Agreement to Sell in the idea of part performance can't
make rights except if the agreement is registered and stamped at 90% of the duty as of the sale
deed according to Article 23-An of the Schedule I of the Indian Stamp Act, 1899 as relevant to
Delhi which was accordingly corrected by the Act 48 of 2001.

A power of attorney which successfully gives ownership rights of a property by allowing the
attorney to sell the immovable property by uprightness of Article 48 (f) of the Indian Stamp Act
as relevant to Delhi will must have the stamp duty as a movement deed according to Article 23
of the Indian Stamp Act for the amount of thought.

Summarizing the place of law, the Hon'ble High Court of Delhi ruled as under:
"… 7. In perspective on the aforesaid settled position of law, this suit isn't maintainable by
goodness of Section 53-An of the Transfer of Property Act read with the corrected Article 23-An
of the Indian Stamp Act as relevant to Delhi as the Agreement to Sell is unregistered and
unstamped and the Power of Attorney other than not entailing the plaintiff to indirectly
accomplish what can't be straightforwardly accomplished is likewise not stamped on the worth of
the transport deed as expected by Article 48 (f) of the Indian Stamp Act as material to Delhi… "
It is important to take note of that Article 48 (f) of the Indian Stamp Act as appropriate to Delhi
expresses that power of attorney, when given for thought and authorizing the attorney to sell any
immoveable property, the legitimate stamp duty to be paid, is the stamp duty as required on
transport deed for the amount of thought.
Therefore, that's what the essential corollary is, assuming that a power of attorney is executed by
X in favor of Y, and X and Y, both are family members and the motivation behind execution of
the power of attorney is award of authority by X to Y to sell of property claimed by X. The items
in Article 48 (f) of the Indian Stamp Act as relevant to Delhi wouldn't be material since here the
power of attorney isn't executed for thought, X and Y being family members. In this way, here
the power of attorney should be stamped at Rs. 50/ - just according to the Indian Stamp Act as
material to Delhi.

b) Vested and Contingent Interest.

Concept of Vested Interest

Section 19 of the Transfer of Property Act, 1882 states about Vested Interest. It is an interest
which is made in favor of a person where time isn't determined or a state of the happening of a
predefined certain occasion. The person having the personal stake doesn't get the possession of
that property however has the hope to get it after happening of a predefined certain occasion.
For instance, A vows to transfer his property to B on him attaining the age of 22. B will have
personal stake in A's property till the time he doesn't get the possession of it.

For instance, in the above model, in the event that B bites the dust at 21 years old, the interest
vested in B will give to the legal successors to B and they will be qualified for the property in the
recommended time span.
There are the important parts of a personal stake as expressed over, every one of these are
examined in detail underneath:
1. Interest ought to be vested: This is the fundamental meaning of the provision that sets out
that interest ought to be made in favor of a person where time isn't determined or a state of the
happening of a predefined certain occasion. A person ought to profess to transfer a particular
property in order for this interest to be made.
2. Right to appreciate property is deferred: When interest is vested in a person, he doesn't
promptly get the possession of that property and thus can't partake in that property.
However, any person who is definitely not a major and has a gatekeeper is simply qualified for
the personal stake after he attains majority.
For instance, X consents to transfer the property 'O' to Y and guides his watchman Z to give him
the property when he attains the age of 22. Y gets personal stake once he attains the age of 18.

In the case of Lachman v. Baldeo (1), a person transferred a deed of gift in favor of another
person however guided him that he will not get the possession of that property until the
transferor himself bites the dust. The transferee will have a personal stake despite the fact that his
right of pleasure is delayed.
Concept of Contingent Interest
Section 21 of the Transfer of Property Act, 1882 states about Contingent Interest. It is an interest
which is made in favor of a person on a state of the happening of a predefined uncertain
occasion. The person having the contingent interest doesn't get the possession of that property
however has the anticipation to get it after happening of that occasion yet will not get the
property in the event that the occasion doesn't occur as the condition isn't satisfied. Contingent
interest is altogether subject to the condition forced on the transfer.
For instance, A consents to transfer the property 'X' to B depending on the prerequisite that he
will get 90 % in his tests. This condition is uncertain and the happening of the occasion or not
happening is in uncertainty and therefore B here obtains a contingent interest in the property 'X'.
He will get the property provided that he gets 90 % and when the condition is satisfied.
In the case of Leake v. Robinson (2), the court held that at whatever point a condition involves
an inheritance that will be given 'at' a particular age or 'after attaining' a particular age or
'subsequent to' attaining this particular age, then it tends to be determined that the transfer
involves a contingent interest.Difference between Vested & Contingent Interest

Sign Ground of
Vested Interest Contingent interest
number Difference

Personal stake is given in Section Contingent interest is given in

1. Section 19 of the Transfer of Property Act, Section 21 of the Transfer of
1882. Property Act, 1882.

It is an interest which is made in It is an interest which is made in

favor of a person where time isn't
determined or a state of the
happening of a predetermined
certain occasion. The person
2. Definition having the personal stake doesn't
get the possession of that property
yet has the hope to get it after
happening of a predetermined
certain occasion.
favor of a person on a state of the
happening of a predefined uncertain
occasion. The person having the
contingent interest doesn't get the
possession of that property however
has the hope to get it after happening
of that occasion yet will not get the
property on the off chance that the
occasion doesn't occur as the
condition isn't satisfied.

The condition involves a The condition involves a predefined

predefined certain occasion. A uncertain occasion. There is an
3. Condition certain occasion implies an opportunity of the happening or non-
occasion that will ultimately happening of that particular occasion.
occur.
 Personal stake doesn't totally rely Contingent interest is totally reliant
upon the condition as the upon the condition forced on the
condition involves a certain transfer. Interest is simply transferred
Fulfilment of
4. occasion. It makes a current right to the transferee on the satisfaction of
conditions
that is active right away, albeit the the condition forced.
pleasure is delayed to the time
endorsed in the transfer.

Right of This right is made when the There is simple opportunity to have
5.
Ownership interest is vested. the ownership rights.

Demise of the person who is Demise of the transferee before

having this interest will not have
Death of
6. any impact over that interest as
transferee
after the departed, the interest will
vest in his legal beneficiaries.
getting the possession of the property
will bring about the disappointment
of continent interest and the property
will remain with the transferor.

Personal stake is a Transferable Contingent interest is a Transferable

Transferable and and heritable right. right, however whether it is heritable
7.
heritable? or not, it relies on the idea of such
any transfer and the condition.

There is available, prompt right in There is no current right of

The present right
8. any event, when its delight is happiness, there is a simple hope of
of enjoyment.
deferred. having such a right.

X professes to transfer the X professes to transfer the property

property 'O' to Y when he attains
the age of 20. There is a personal
9. Examples stake with Y for the property 'O'.
'O' to Y depending on the
prerequisite that he will develop a
well in his property. On the off
chance that he develops, Y will get
contingent interest in the property
until the condition isn't satisfied.

Conclusion
The Transfer of Property Act, 1882 deals with two kinds of interest that are vested interest and
contingent interest. The concepts of personal stake and contingent interest are something that is
vital to understand as there are many sections relating to these concepts. The main point to
understand about both the concept is that the transfer of property involving Contingent interest
produces results solely after the condition is satisfied, on the off chance that the condition isn't
satisfied then the transfer will not produce results.
The circumstances are expected to be satisfied and they need to fundamentally agree with the
rules of the introduction that discussion about equity, equity and clean conscience, the three
major principles of the normal law on which this entire act depends on. In a transfer of property
involving personal stake, the transfer isn't invalidated in the event that the condition referenced
isn't satisfied.

c) Exchange of property.
SECTION 118 OF TRANSFER OF PROPERTY ACT, 1882 defines as "when two persons
commonly transfer ownership of one thing for the ownership of another, neither thing or the two
things being money just, the transaction is called an "Exchange".
From above we understand that for being an "Exchange";
i. There should be two person transferring ownership of one thing for the ownership of
another;
ii. ii. Neither thing or the two things being money as it were.
We know that transfer of any property against thought is classified "Sale", and transfer without
thought is designated "Gift". Presently when a property has been exchanged with another
property it is designated "Exchange".
There might be both immovable or movable property, which can be transferred through
exchange. At times where transfer of ownership of a property alongside some money against
some ownership of another property occur, it likewise goes under definition of exchange. Model:
Highlights OF EXCHANGE;
1. Transfer of ownership; Exchange involves transfer of ownership in some existing property. In
transfer of ownership, outright interest of the owner is transferred. A partition of immovable
property isn't considered as exchange.

2. Property need not be immovable property; In Exchange properties might be immovable or

movable. An immovable property can be transferred against a movable property as well as the
other way around.

3. Exchange includes "Trade"; Exchange of one immovable property with another immovable
property is known as "Bargain" and same in case of transfer of one movable property against
another moveable property.

4. Method of Transfer;
 I. Section 118 gives that a transfer of property in fruition of an exchange can be made
exclusively in a way endorsed for transfer of such property by "Sale".

The formalities of Section 54 (dealing with sale of properties) will be followed;

ii. Where the two properties are of movable, then exchange might be impacted by delivery of
properties and enlistment isn't essential;
iii. Where properties are immovable, yet esteem is not as much as Rs. 100, then enrollment is
discretionary; iv. Where the properties exchange are immovable properties and their worth are
more than Rs. 100/ - then enlistment of exchange of ownership through instrument is
fundamental.

Note: 1. it is fundamental that Deed of Exchange is a substantial contract and not void under
Contract Act. Assume persons are exchanging ownership of their properties to conceal act of
wrongdoing or financial wrongdoing or benami properties then the instrument of exchange
become void.
[ Srihari Jena Vs. Khetramohan Jena, AIR (2002) Orissa 195; 2002 (4) Civ LJ 279]. 2.

At the point when in an exchange of properties one party didn't get possession of the property he
was qualified for get in exchange, he was held qualified for return property transferred by him.

Hari Shankar Mishra Vs. Bad habit Chairman, Kanpur Development Authority, AIR 2001 All
139 ;2001(42) ALL LR 839. 3. Balakrishnan Bhagwanji Lodi Vs. Prakash Sheshrao Lodi, AIR
2005 NOC 89(Bombay); it was held that in case of partition of joint family property, whenever
partition is impacted, whether via family course of action or deed of partition, there is severance
of jointness of properties.

Two brothers thereafter exchanged properties which were held by them seperately. The
properties being worth more than Rs. 100/ - in esteem. They could exchange them just through
registered instruments.

LET'S CONSIDER DIFFERENCE BETWEEN EXCHANGE AND PARTITION;

1. Exchange is shared transfer of ownership by two persons of various two properties. A partition
is simple a plan by which the few co-owners hold property independently, which they held in
common pool beforehand.
 2. Exchange is achieved a contract between the parties. The right of partition is a characteristic
right and there isn't have to go into a contract.
3. In an Exchange the parties exchanging their properties has not interest prior to exchange in
one another properties. In a partition each party has as much interest in the whole property as the
other. There is no selective ownership under partition.

RIGHTS AND LIABILITIES OF PARTIES TO THE EXCHANGE;

[ Section120 of the Transfer of Property Act,1882]
Section 120 doesn't explicitly make reference to the rights and liabilities of the parties to the
Exchange. It gives just that each party has the rights and is dependent upon the liabilities of a
seller concerning that he gives and has rights and is dependent upon the liabilities of a buyer with
regards to that which he takes. Therefore, the rights and liabilities of parties in case of exchange
are equivalent to in case of sale.

In Exchange, one thing is given and another thing has been taken, so parties assume part of
seller as well as a buyer, both. In case of movable properties, the provisions of Sale of Goods
Act, 1930 are pertinent in exchange too.

EXCHANGE OF MONEY [ Section 121 of the Transfer of Property Act, 1882];

"On an exchange of money, each party thusly warrants the genuineness of the money given by
him". In this case the money transferred should be genuine money and not be a fake cash or
phony money.

d) License under Easement Act.

Introduction
The term ‘easement’ is derived from the old Latin word ‘aisementum’ meaning ‘comfort,
convenience or privilege’ and evolved into ‘a legal right or privilege to use anything other than
one’s own’ from an early easement. It is the granting of a non-possessory property interest that
grants the easement holder permission to use the land of another person. It is referring to the
right that a man would sometimes have a licence is a personal right and granted to the individual
doing something on the grantor’s immovable property is not creating value on the property itself.
This is strictly a permissive right, which is the grantor ‘s personal privilege. This does not
impose any duties and responsibilities on the individuals making the grant and is thus revocable
except in such conditions specifically provided for in the Act itself. When granted, the license
has no other effect of giving the licensee freedom to go to the land that would otherwise be
lawful.

Section 52 of Indian Easement Act, 1882 defines licence as something in which a person grants
another, or a certain number of other persons, the right to do or continue to do in or on the
grantor’s immovable property. This principle was incorporated into the Indian Easements Act of
1882. Section 52 till Section 64 of the Indian Easements Act, 1882 are concerned with licenses
and their administration. Unlike a Lease, a license is merely a right to allow the use of the subject
land. Lease involves the transfer of possession of the property/land area to the lessee. A lease
implies to give the lessee the possession of the premises/land area. The lessor shall retain only
the right of possession of the subject land unless otherwise agreed. On the other hand, the license
is merely given permission and that authorization does not require the full ownership right to the
property in question. The licensor reserves the legal as well as the physical right of possession in
a licence.
Definition
As per Section 52, if a person gives or proceeds to do in or on the grantor’s immovable property
anything that may be unlawful, or the rights are not easement or interest in the land, to another
person or a certain number of certain people, in the absence of such right is called a license.
The license, in a popular sense, means three things:
 Authorization to do it,
 Certificate or document embodying the authorization in question, and
 License fee which is the price granted for the privilege. 
Essentials of a licence
 Two different persons.
 There has to be a grant.
 License is always useful.
 License is granted to do something in or upon the grantor’s immovable property.
 The license does not relate to ownership of any land but only creates a personal right or
obligation.

Case Laws

Associated Hotels of India v. R.N. Kapoor

According to Section 52, as stated in the case, where an agreement only allows
the right to use the land in a specific manner or under certain conditions while it
remains in the possession and control of the owner, thereof, it shall be a
licence. Therefore, legal possession remains with the property’s owner, but the
licensee is allowed to use the premises for a particular purpose. 

But his occupation would be unlawful for the permission. This does not establish
any estate or interest in the property in his favour. Therefore, the distinction
between the two concepts is clear. The dividing line is clear though it gets very
thin or even blurred at times. At one time, the application of the exclusive
possession was considered unfailing and if a person was granted exclusive
possession of a premise, it would be conclusively proved that he was a lessee.

It is important to take note of the essential features of licence as under:

1. A licence does not apply to land or property possession but merely

provides a legal right or duty.
2. Licence only tends to create a title or interest in the immovable
property to do something under the authority of the licence.
3. Licence neither can be transferred nor assigned.
4. The Licence shall be a strictly permissive right that occurs through
permission, express or implied, and not by adverse exercise or
otherwise.
5. It only legalizes a certain act that would otherwise be unlawful and
does not grant any interest in the property itself in or upon or over
which such an act is carried out.
6. A licensee cannot sue outsiders on his behalf.

Errington vs Errington
If we talk about the facts of this case, in 1930, a father purchased a house
along with his son and daughter-in-law (Wood) and told her that the
downpayment was a gift from him and said, “After his retirement, the house
would be transferred to them when the mortgage is paid.” Wood regularly paid
mortgage instalments, but Errington left the property in his wife’s name after
his death. Later, both Wood and son of Errington split. Errington was sued for
possession of the property. So the issue arose if after the death of the offeror,
can a unilateral contract be cancelled. However, the appeal was dismissed by
the Court.  
The Court ruled that the son and daughter-in-law had no explicit obligation to
pay the instalments and the Court could not infer those terms. He characterizes
the pledge of the father as a unilateral contract; the performative act that pays
for the mortgage and hence it will only be revocable if the couple did not make
the payments. The offeror cannot cancel the offer once success has begun. The
implicit purpose of the father was to hold the house in their hands if the
mortgage was paid for. The pair were on a lease, short of a tenancy, but a
statutory or at least equal right to live that would develop into a good equal title
until the mortgage was paid. 

Difference between Lease and Licence 

Lease Licence

Creation of interest in the property  No passing of interest in the property

The lease gives the tenant a right to exclusive The license confers no such right to
possession the licensee

Licence is non-transferable and non-

The lease is transferable and revocable
revocable

Difference between Licence and Easement

Licence Easement

Right  in  Personam Right attached with the property

Non-Transferable Transferable

Revocable on the will of grant Not revocable at the will of grant 

Conclusion 
The fact does not mean that there is no license rule for the term license as described. There is a
licensing law but it has to be stated in terms of specific types of cases. Where a licensor does not
give cause to expect otherwise, the privileges of the licensee may be terminated at will. Where a
licensor expresses an intention of making the right more permanent, the consequences depend on
certain circumstances. The license will establish a true easement if it offends no legal regulation.
Unless it offends the law requiring a sealed instrument, it would potentially establish an
easement but only by the fair process will the applicant seek relief. If the enforcement of the
license places a relatively useless burden on the land, neither the expectations of the parties nor
their formalities nor their expenditure will give the interest the characteristics of Easement Act.

Q.3 In a lease agreement as follows:

Lesser- : ABC Private Limited
 Lessee: XYZ & Associates, a partnership firm
 Premises: Shop No. 18F, admeasuring approximately 1000 square feet, First
Floor, Plaza Shopping Centre, MG Road, Pune
 Use: Restricted to sale of mobile phones and accessories
 Duration: 3 years
 Lock-in period: (i) For the lesser– entire duration of the agreement (ii) for
lessee– 2 years from date of execution
 License fees: Rs. 40,000 per month with a 10% annual escalation.
 Payment of lease fees: Payable in advance on the 3rd day of every month
 Interest free security deposit: Rs. 2,00,000 payable as follows (i) 50% on
execution and (ii) balance 50% payable 2 months after execution of the
agreement.
 Security deposit to be refunded by the lesser 1 month after termination/expiry
of the agreement, provided peaceful and vacant possession of the premises in
handed over to the Lesser.
 All utility and other charges relating to use of the premises to be paid by the
lessee
 Eletronic items such as air-conditioner, water cooler, coffee machine and
inverter is provided by the licensor, however, maintenance of these is
responsibility of the lessee.
 Apart from the electronic items, the premises are not furnished, and lessee can
make the interiors as per their requirements.
 Any delayed payments by lessee shall carry an interest of 18% per annum.
 Lessee to indemnify lesser.
 Charges relating to stamp duty and registration to be borne equally by the
parties
 Licensee cannot transfer/assign its rights under the agreement.
However after agreement and possession there has been disputes between lesser
and lessee on statutory rights and liabilities of lesser and lessee about the premise.
Guide both the Parties in relation to the correction to be made on above
information with reference to agreement and introduction to their statutory rights
and liabilities of lesser and lessee.

Q.3 Mr X left the instrument by conveying his movable and immovable property to his
wife ,one unmarried daughter and married son and his one real brother and sister
by taking equal share .
But the claimant under document has doubt about nature of instrument as Gift or
Will.
In light of this, explain to the parties the requirements for Gift and compare with
the instrument of Will (similarity and distinction).

Q.4 Comment upon the concept of exchange and its pros and cons. Suggest the
reforms.

RIGHT OF A PARTY DEPRIVED OF THING RECEIVED IN EXCHANGE; [Section

119 of the Transfer of Property Act, 1882]
If any party to an exchange or any person claiming through or under such party is by reason of
any defect in the title of the other party deprived of the thing or part of the thing received by him
in exchange , then, unless a contrary intention appears from the terms of the exchange , such
other party is liable to him or any person claiming through or under him for loss caused thereby,
or at the option of the person so deprived for the return of thing transferred , if still in the
possession of such other party or his legal representative or a transferee from him without
consideration.
An exchange, like a sale, is primarily an agreement between two parties; and unless the object of
exchange is illegal, all parties will be subject to the terms of the contract. A contract to the
contrary is also subject to the law enunciated in section 119. According to this section, each party
is entitled to the property to which it was entitled under the contract and provides the aggrieved
party with a remedy in the case that it does not receive what it was supposed to obtain under that
contract. A and B, for example, enter into a contract to mutually exchange their X and Y
properties, respectively. A supplies X to B, but B fails to supply Y to A. In accordance with the
rules laid down in this section, A’s rights will be determined. It provides the party so
dispossessed in the alternative with two remedies:
i) He can seek compensation for the loss of such dispossession caused to him.
(ii) He is entitled to take back the property he has transferred. This right may be exercised as
against:
(a) The other party to the exchange in whose hands there is possession;
(b) Where the possession is kept by the transferee’s legal representative;
(c) Where the possession is with the other party’s gratuitous transferee.
An exchange of land took place between A and the predecessor of B in 1941 in Ramsayivan v
Lalji Ram, but B sold the same illegally to a third party in 1988. It was decided that the
purchaser of the land would not have any locus standi to say anything about the exchange nor
that of A’s title. The principle of getting the property in return in the case of deprivation of the
exchanged property also extends to cases where there is no transfer at all instead of subsequent
deprivation of the transferred property. If a party to an exchange fails to acquire possession of
the property it is entitled to obtain in exchange, it shall also be entitled, at his option, to the return
of the assets which it has exchanged.
Jattu Ram V. Hakama Singh, where, due to false entries made by patwari, there was a defect in
the title of land obtained by one party for exchange and the party was deprived of some portion
of the land as per Deed of Exchange. It was held by the Supreme Court that entries made in the
official records by patwari do not generate title, so to the extent that the opposite party was liable
to return land (property).
1. The provisions of Section 119 shall apply only in situations where one of the parties to
the Transaction has been deprived of the things/property transferred because of a defect
in the title of another person transferring the things/property.
 2. It is not necessary to invoke the provisions of Section 119 of the Transfer of Property
Act, 1882 in a situation where another person has forcefully disposed of the property /
things obtained by him by exchange.
Example: Assume that Mr. A and Mr. B were transferred ownership of their residential property
and Mr. C’s brother, Mr. A, was forcibly disposed of Mr. B’s possession of residential property,
the ownership of which was transferred in exchange to Mr. B.
RIGHTS AND LIABILITIES OF PARTIES TO THE EXCHANGE (Section 120)
The rights and liabilities of the parties to the exchange are not expressly stated in section 120. It
just provides that each party has the rights and is subject to a seller’s liabilities as to what he
gives and has rights and is subject to a buyer’s liabilities as to what he takes. The rights and
liabilities of the parties in the event of an exchange are therefore the same as in the case of a sale.
One thing is given in return and another thing has been taken, so parties play the role of both
seller and buyer. The rules of the Sale of Goods Act 1930 are also applicable in exchange for
movable property.
In exchange, all parties have equal rights over one another. He is considered to be in the role of a
seller when the person transfers the property to the other and he holds all the rights that a seller
has when selling property. The person who receives the property is called a buyer and, because
of being a buyer, he has all the privileges that a buyer possesses.
EXCHANGE OF MONEY (Section 121)
On an exchange of money, each party thereby warrants the genuineness of the money given by
him. Money can be exchanged with money, of the same or different denominations or even
different currencies. The term money here includes not only coins, but also currency notes.

Q.6 Write short notes on ANY TWO of the following:

b) Determination of lease
In India, transfer of property isn't feasible for each individual as a result of financial issues. The
extremely durable or outright transfer is an extravagance for certain individuals, however a
temporary transfer is something that has provided each resident with the right of enjoying any
property. One of the methods of transferring property for a particular timeframe is Lease.
Lease is a transfer of an interest in the property for a specified timeframe without transferring the
ownership of that property. In a lease, right of possession is transferred instead of the right of
ownership.
Transferor here is known as the lessor and the transferee for example the one enjoying the
property for a period is called lessee. Lease is governed by the Transfer of Property Act, 1882
and it is given from Sections 105 to 117.

Definition of Lease
Section 105 states the definition of a lease which expresses that it is a transfer of immovable
property for a particular time span for a thought of which the transferee has acknowledged the
terms surrounding the agreement.

What are the essentials of a lease?

•
o Parties should be able: The parties in a lease agreement ought to be skillful to go into a
contract. Lesser ought to be qualified for a property and have outright rights over that property.
o Right of possession: Ownership rights are not transferred in a lease, just the possession of
the property is transferred.
o Rent: Consideration for a lease can be taken in the form of a lease or premium.
o Acceptance: Lessee, who is to get the interest in the property after lease, needs to
acknowledge the lease agreement alongside the time span and terms and conditions forced on the
transfer.
o Time Period: Lease generally happens for a particular time span which is to be
determined in the lease agreement. It very well may be loose at the choice of the lessor.

Determination of lease
Section 111 states about the determination of the lease, which sets out the manners by which
lease is terminated:
1. Lapse of time - When the endorsed season of the lease lapses, the lease is terminated.
2. Specified occasion - When there is a condition on season of lease depending upon a
happening of an occasion.
3. Interest - Lessor's interest to lease the property might stop, thus resulting in the
termination of the lease.
4. Same owner - When the interest of both lessor and lessee are transferred or vested in a
similar person.
5. Express Surrender - This happens when the lessee quits having an interest in the property
and comes into a shared agreement with the lessor.
6. Implied Surrender - When the lessee goes into a contract with another for the lease of
property, this is an inferred give up of the existing lease.
7. Forfeiture - There are three different ways by which a lease can be terminated:
• At the point when there is a break of an express condition by the lessee. The lessor might
get the possession of the property back.
• At the point when lessee revokes his character or gives the title of the property to a third
person.
• At the point when the lessee is named as insolvent by the banks, and in the event that the
circumstances accommodate it, the lease will stand terminated.
8. Expiry of Notice to Quit - When the notification to stop by the lessor to the lessee terminates,
the lease will likewise lapse.

Conclusion
Lease is a vital part of reality. Each person has seen a lease bargain involving renting of a house,
vehicle or and so on. Therefore the overall population must be familiar with the rights of each
and every individual in a lease, and to be aware of the provisions that govern lease. The lease is
referenced from Sections 105 to Section 117, out of what Sections which might assist the overall
population, law understudies and the legal organization with having been examined in this article
to give explanation and an essential thought regarding the lease.

c) Doctrine of lis pendens

Introduction
The Transfer of Property Act, 1882, was declared embodying the principles of English Common
Law, in particular equity, good conscience, and justice underscored by the provisions of the
Indian Contract Act, 1872, and came into force from July 1, 1882.

Property or ownership are synonymous with one another, and ownership interest is consequently
made when a right is vested.

Ownership must be:

1. Indefinite in point of the user - The owner might utilize the property subject to certain
limitations without injuring the rights of other persons, yet never in time will it nullify the
ownership in the property regardless of whether the rights might be shortened.
2. Unrestricted in the point of attitude - The owner has an unbound right to discard the
property. Nonetheless, there are exemptions for this as minors (those underneath the age of 18)
can be owners yet can't estrange the property. Likewise, the Government might obtain the
property for explicit purposes independent of the property owner's assent.
3. Unlimited in the point of term - As lengthy as the property being referred to exists, the
property rights are heritable. Again, the Government can, anytime, secure the property and
terminate the owner's rights.

The motivation behind the doctrine of Lis Pendens

This Doctrine is essential as it forestalls Transfer of the title of any contested property without
the Court's assent, there can be perpetual prosecution, and it will become difficult to bring a
lawsuit to an effective termination on the off chance that estrangements are allowed to win, and
contracts are not forced.

The 'Transferee pendente light' is limited by the decision similarly as though he were a party to
the suit and the transfer will be compliant to the consequence of the pending lawsuit.

Conditions for Applicability of the Doctrine as given in Section 52

• A suit or proceeding is pending.
• The above suit is brought to an equipped court within the purview.
• The right to the title of an immovable property is straightforwardly being referred to.
• There can't be any intrigue.
• The suit ought to straightforwardly influence the rights of the other party.
• The property being referred to is being transferred by either party.
A few models for Non-Applicability:
• This doesn't have any significant bearing to a confidential sale a the right by a creditor to
discard the property that is mortgaged to it in any event, when the borrower has a redemption suit
pending.
• The Doctrine likewise doesn't have any significant bearing when the property isn't
portrayed correctly, making it unidentifiable.
• In a maintenance suit, where the property is referenced just with the goal that
maintenance installments can be determined straightforwardly; the Doctrine doesn't make a
difference when a right to the said immovable property isn't straightforwardly being referred to
and estrangements are thereby allowed.
• The Doctrine neglects to apply when a Court orders restoration of immovable property
under the Civil Procedure Code, Order 21, Rule 63.
Understanding the jurisprudential development of this Doctrine

Caselaw:
In Ayyaswami versus Jayaram Mudaliar AIR 1973 SC 569, the Court held that the motivation
behind this provision isn't to deny the parties of each and every equitable or fair contention yet
rather to ensure that the parties submit themselves to the ward and authority of the Court which
will determine all claims that are set before it to the satisfaction of the parties concerned.

In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the Court ruled
that Section 52 of the Transfer of Property Act, wouldn't make void or unlawful any sale of the
challenged properties, yet just puts the purchaser past the binding furthest reaches of the
judgment on the demeanor of the contention.

In the case of Koyalee v. Rajasthan District, AIR 2009 Raj.28, the land being referred to was
originally registered for the sake of the Plaintiff's husband. After his passing, his brother
understood and knowing great that the spouse of his brother was alive and was the sole legal
beneficiary, documented a lawsuit pursuing the Khatedari rights, and as per this, the wife needed
to challenge that she was the sole legal successor to the recorded Khatedar. The brother further
proceeded to transfer the land in spite of the lawsuit that was pending, since this was managed
without seeking the Court's authorization the transfer was struck down under Section 52 of the
Transfer of Property Act according to the Doctrine of lis pendens.

In Vinod Seth v. Devinder Bajaj, 2010, however reiterating its power to reject the suit property
from the limits set out in Section 52 of the Act, it has permitted the Respondent to make a
pendente light move. These exceptions under Section 52 are, notwithstanding, dependent upon
certain circumstances forced by the Court.
In the case at question, the Plaintiff was a contractor who wished to create a gain by constructing
a building on the suit-land, and the Defendant needed to move it to an outsider.
A sum of three lakh rupees was to be stored as a security by the Defendant to transfer the
property being referred to, The total the claimant would have profited by. The Court had in this
way required the condition for the installment of that aggregate, which would make the pendente
light transfer authentic.

The Court's situations on this pendente light transfers issue are explained in Ashok Kumar v.
Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a pendente
light can't be transferred for a property whose title is the subject of suit.
These transfer installments would restrict the rights of the party to whom the Court would
ultimately have concurred that the property would be given the title. Where the right of the
pendente light transferor to the property is maintained under the announcement of the Court, then
the title of the transferee to the property is dismissed. Nonetheless, if the title of the pendente
light transferor is recognized exclusively for a more modest portion of the property, just for that
portion of the property might a transferor at any point have the title.
The Transfer of the title of the remainder of the land, for which there is no right for the pendente
light transferor, is invalid. This implies that the transferee can't claim the title or some other
interest in the remainder of the property. Finally, assuming that the transferor was found to have
no directly in any case to the transferred land, then the transferor would likewise not have gained
rights on this property.

The Supreme Court talked about and changed the law concerning the Doctrine of lis pendens in
Har Narain v Mam Chand, in consistence with Section 47(2) of The Registration Act, 1908. The
lis pendens doctrine expresses that no decent property might be transferred when a lawsuit
relating to it is pending.

Under Section 47, from the date of execution, a recorded sale deed of a decent property is
considered to exist upon enrollment. The Court clarified that the fiction delivered compliant with
Section 47 doesn't forbid lis pendens from functioning. Hence, assuming the common action
begins and is registered later, the Court held that land sales are as yet dependent upon the
principle of lis pendens.

Ideas
To digitize all property records, while the Doctrine is important to guarantee that the property
rights of the parties involved are secured, innovation must be utilized so the property title being
referred to doesn't get transferred while the case is pending.
This can be accomplished by the total digitalization of property records wherein all properties are
accorded a property recognizable proof number, this alongside the fact that India has proactively
made a Unique Identification System for every one of its residents by means of the Aadhaar card
can be combined to guarantee that the integrity and holiness of the information are never being
referred to. This will likewise help in avoiding cases where the property can't be recognized.

At the point when an encumbrance certificate (EC) is given, it specifies any encumbrance. This
can be improved, in order to list any pending litigation(s) to caution the registering authority and
the parties concerned.

Conclusion
The doctrine of Lis Pendens is totally founded on the theory of necessity rather than on the
theory of notice governed by the principles enshrined in common law, to be specific Justice,
Equity and Good Conscience. It is, therefore, crucial in ensuring that justice is given without
injuring the rights of either party.