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Property Law Exam Notes
Property Law Exam Notes
“immoveable property” does not include standing timber, growing crops or grass;
1[“attested”, in relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the executant sign or affix his
mark to the instrument, or has seen some other person sign the instrument in the presence
and by the direction of the executant, or has received from the executant a personal
acknowledgement of his signature or mark, or of the signature of such other person, and
each of whom has signed the instrument in the presence of the executant; but it shall not be
necessary that more than one of such witnesses shall have been present at the same time,
and no particular form of attestation shall be necessary;]
“registered” means registered in 2[3[any part of the territories] to which this Act extends]
under the law4 for the time being in force regulating the registration of documents;
5[“actionable claim” means a claim to any debt, other than a debt secured by mortgage of
immoveable property or by hypothecation or pledge of moveable property, or to any
beneficial interest in moveable property not in the possession, either actual or constructive,
of the claimant, which the Civil Courts recognise as affording grounds for relief, whether
such debt or beneficial interest be existent, accruing, conditional or contingent;]
6[“a person is said to have notice” of a fact when he actually knows that fact, or when, but
for wilful abstention from an enquiry or search which he ought to have made, or gross
negligence, he would have known it.
Explanation I.—Where any transaction relating to immoveable property is required by law to
be and has been effected by a registered instrument, any person acquiring such property or
any part of, or share or interest in, such property shall be deemed to have notice of such
instrument as from the date of registration or, where the property is not all situated in one
sub-district, or where the registered instrument has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which
any memorandum of such registered instrument has been filed by any Sub-Registrar within
whose sub-district any part of the property which is being acquired, or of the property
wherein a share or interest is being acquired, is situated:]
Provided that—
(1) the instrument has been registered and its registration completed in the manner
prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument or memorandum has been duly entered or filed, as the case may be, in
books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been
correctly entered in the indexes kept under section 55 of that Act.
Explanation II.—Any person acquiring any immovable property or any share or interest in
any such property shall be deemed to have notice of the title, if any, of any person who is for
the time being in actual possession thereof.
Explanation III.—A person shall be deemed to have had notice of any fact if his agent
acquires notice thereof whilst acting on his behalf in the course of business to which that fact
is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged
with notice thereof as against any person who was a party to or otherwise cognizant of the
fraud.
COMMENTS
Concept of property;
The term ‘property’ has not been defined in the Act. When Section 6 of the Act says ‘property
of any kind’ it implies every possible interest or right that can be possessed and is a subject
of ownership. It can be tangible or intangible. It can be a physical object or something
abstract. Property of different kinds is dealt with differently. The movable property is dealt
with under the Sales of Goods Act, 1930 while the major chunk of the Transfer of Property
Act, 1882 deals with immovable property. Section 3 of the Transfer of the Property Act, 1882
is called the Interpretation clause for it explains the following terms.
The definition of immovable property as per the Transfer of Property Act is a negative
definition. The Section 3 reads that “immovable property” does not include standing timber,
growing crops or grass”. Standing timber refers to trees that are fit for usage in building or
repairs. Growing crop includes all such vegetables, etc that are solely grown only for their
produce. Grass is referred to as fodder.
Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an exhaustive definition. It says
that “Immovable property shall include land, benefits arising out of land and things attached
to the earth, or permanently fastened to anything attached to the earth.” It specifies the
following as immovable property.
a) LAND. It encompasses the upper as well as the lower surface of the earth. Any interest in
the same will be treated as that of immovable property. It would include wells, streams etc.
b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing with
rights and interests in land as defined above. Right to collect rent or zamindari rights are two
examples.
c) THINGS ATTACHED TO EARTH. The nature of attachment is important.
Trade fixtures are to be treated in association with the business and not the land as the
fixtures are attached in connection with the business. Such fixtures are to be treated as
accessory to the business and not as annexation. The position is different if the person
attaching the fixtures in a business place is the owner himself.
When it is a machinery in the factory, the court has to see the object and purpose of such
installation. The beneficial enjoyment of the machinery itself, the degree and the manner of
attachment or annexation on to the earth are other points for consideration.
The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical aspects
of property in the definition present in the said Act. The definition under the Act is as follows,
“Immovable Property includes land, buildings, hereditary allowances, rights of ways, lights,
ferries, fisheries or any other benefit arising out of land and things attached to the earth but
not standing timber, standing crops or grass.”
Immovable Property means lands, benefits arising of the lands and the things attached to
the earth or permanently fastened to anything attached to the earth. Other than the physical
aspect, every benefit arising from and every interest in the property is also included in the
definition. It excludes three things, namely, standing timber, growing crops and grass.
For example, mangoes are treated as movable property for the intention is to pluck them
seasonally and sell them. On the other hand, when a person has a right to fish from a
particular lake, it is a benefit arising of an immovable property, namely, the lake. Hence, it
will be an immovable property.
MARSHALL vs. GREEN — It was held that if only a right to cut and enjoy the tress as timber
was sold, it is an interest in a movable property. If such a right is to extend over many years,
it will be treated as an interest in immovable property.
The real test if whether a property is immovable or immovable is the intention behind the
transfer and the transferability of the property. For example, generally a mango tree will be
treated as an immovable property but it will be treated as movable property if it is to be cut
and used to build a house.
IMMOVABLE PROPERTY
It cannot be transferred without causing extensive damage to the property. The damage
relates to the nature of the
property
Registration is compulsory under the Indian Registration Act, 1908 if the value of the
property is more than Rs. 100.
The property needs to be registered at the Sub-Registrar’s office.
The appropriate stamp duty and the registration fee have to be paid.
What is included
1) A right to collect rent from an immovable property;
2) A right to receive future rents and profits of land;
3) A tenancy right;
4) Coal mines;
5) A borewell that has been fastened in a permanent way to the earth;
6) Hereditary Offices; and
7) Right to use water of a perennial stream.
(2) St of Orrisa vs Titaghur Paper Mills Company Ltd, AIR 1985 SC 1293: (1985) Supp SCC
280
[ The contract shld be examined as a whole with reference to all its terms & all the rights
conferred by it & nt wid ref to only a few terms or with just one of the rights flowing thr frm -
'bamboo contract' (right to cut & remove bamboos with several ancillary rights) is related to
immovable property as a benefit to arise out of land & did nt relate to a contract of movable
property. ]
Facts n Issue - In this case a contract of the petitioner company with State of Orissa fr the
purpose of felling, cutting & removing bamboos frm forest areas fr the purpose of converting
the bamboos in paper pulp, or fr the purposes connected with the manufacture of paper, etc
have been held to be profit a pendre or benefits arising frm land, & thus an immovable
property.
Court overruled St of MP vs Orient paper mills
Othr cases which court relied on:- Ananda Behera vs St of Orissa - right to fish -> right in
immovable property
--------------------------------
2. Attestation ( Sec 3 )
Importance of Attestation;
The Transfer of Property Act, 1882, hereinafter referred to as TPA, lays down the law to
regulate the transfer of property between living persons.
[1] The TPA regulates transfer of property by providing for certain kinds of transfers-sale,
mortgage, lease, exchange, gift and also provides for attestation of the instruments, by
which these transfers take place. To attest is to bear witness to a fact.
[2] By providing for attestation, the TPA seeks to ensure that witness is borne to the fact that
the transfer instrument is signed without any element of “force, fraud or undue influence”.
[3] The TPA while making a provision for attestation, makes attestation mandatory only in
case of certain kinds of transfers-gifts and mortgages, to the exclusion of all other kinds of
transfers.
Section 3 in laying down the meaning of attestation, enumerates three conditions for a valid
attestation under the TPA
-Firstly, there must be at least two attesting witnesses.
-Secondly, each of the attesting witnesses must see the transferor (or executant) sign the
instrument or affix his mark or see some other person sign the instrument or affix his mark
under the direction of the transferor, otherwise each of the witnesses must at least receive a
personal acknowledgement, from the transferor, that the signature or the mark is his.
-Thirdly, the attesting witness must attest with an intention of bearing witness to the
instrument being signed and with no other intention. [6] Not following the above three
conditions would make the attestation invalid and an instrument invalidly attested, cannot be
executed in a Court of Law.
[7] Since, attestation is done in order to bear witness to the fact of verity of the transfer
instrument, which is being executed by the transferor in favour of the transferee, it naturally
follows that the transferor, the transferee, or any other person, who is party to the
instrument, cannot be an attesting witness to the transfer instrument.
[10 ] Thus, for a valid attestation, it is necessary that any person, other than a person who is
party to the instrument, is the attesting witness.
Object :
The object of attestation in the TPA, was held out by the Supreme Court, again in, Harish
Chandra v. Bansidhar Mohanty.
[11] In arriving at its decision that a party to a transaction, as opposed to a party to an
instrument can be an attesting witness, the Supreme Court, stated the object of providing for
attestation in the TPA is to — “protect the executant from being required to execute a
document by the other party thereto by force, fraud, or undue influence”.
[12] Thus, the purpose, with which attestation, has been provided for in the TPA, is to ensure
that the transfer of property takes place voluntarily i.e. without any element-whether fraud,
fraud or undue element — vitiating the free consent of the transferor. As such, providing for
attestation, the TPA seeks to ensure that witness is borne to the fact of verity of the transfer
instrument in the sense of it being signed by the transferor voluntarily.
Scope :
The TPA, while it provides for transfers such as — sale, mortgage, lease, exchange, gift,
makes attestation mandatory only for certain kinds of transfers by mortgage and gift. Section
59[13] of the TPA lays down that for every transfer by mortgage to be effected, where the
principle amount is Rs. 100/- or upwards, and where the mortgage is not by way of deposit
of title deeds, attestation is mandatory. In case of mortgages, where the principle amount is
less than Rs. 100/- a mortgage can be effected either, by registration and attestation, or
mere delivery of property. Hence, for mortgages where the principle amount is less than Rs.
100/-, attestation is not mandatory. Similarly, Section 123[14] of the TPA, lays down that, for
transfer by gift involving immovable property, attestation is mandatory for the transfer of gift
to be effected, a transfer by gift involving movable property can be effected either by
registration and attestation or by mere delivery.
Thus, the TPA makes attestation a mandatory requirement, only in case of transfer by
mortgage and gift; that too, mortgages involving a principal sum of Rs. 100/- or upwards and
gifts involving immobile property, respectively. Under the TPA, where attestation is made
mandatory for certain kinds of transfers by mortgage and gift, attestation is not mandatory at
all for other kind of transfers, whatever principle sum they may involve or whatever property
they may effect a transfer of.
Who may be a competent witness; - Anyone apart frm the parties to the transfer of property
mode of attestation; -
(5) Kumar Harish Chandra Singh Deo vs Banisidhar Mohanty, AIR 1965 SC 1738: (1966) 1
SCR 153
No provision of law debars a money lender frm attesting a deed which evidences the
transaction whr under the money ws lent.
3rd person lended the money to the mortgagee but the mortgage deed ws between the
mortgagor & mortgagee. Held 3rd person cud attest the deed even though it ws he who
lended the money. SC obsrvd 3rd person is not a party to the deed but a party to the
transaction.
(6) M.L. Abdul Jabbar Sahib vs H. Venkata Sastri, AIR 1969 SC 1147: AIR 1969 SC 1147
This case highlights the importance of valid attestation in matters of trnsfr of property, it is
essential tht the witness put his signature animo attestandi i.e. with intention of attesting.
3. Notice (Sec 3)
NOTICE
The last paragraph of the section 3 states under what circumstances a person is said to
have notice of a fact. He may himself have actual notice or he may have constructive notice
may be imputed to him when information of the fact has been obtained by his agent in the
course of business transacted by the agent for him.
(a) Express or actual notice. -- An express or actual notice of fact is a notice whereby a
person acquires actual knowledge of the fact. It must be definite information given in the
course of negotiations by a person interested in the property.
(b) Constructive Notice. -- It is a notice which treats a person who ought to have known a
fact, as if he actually does know it. In other words, a person has constructive notice of all
facts of which he would have acquired actual notice had he made those enquiries which he
ought reasonably to have made. The cases of constructive notice into two classes :
(i) Cases in which the party charged has had actual notice that the property in dispute was in
some way affected, and the Court has thereupon bound him with constructive notice of facts
and documents, to a knowledge of which he would have been led by an inquiry after the
circumstances affecting the property had come to his knowledge.
(ii) Cases in which the Court has been satisfied from the evidence before it that the party
charged has designedly abstained from inquiry for the very purpose of avoiding notice – A
purpose which, if proved, would clearly show that he had a suspicion of the truth, and a
fraudulent determination not to learn it.
Notice – Effect of not making enquiry.-- Property was in possession of tenant. The vendee
has not made any enquiry with the tenant in respect of prior agreement for sale executed in
favour of the tenant. The vendee purchased the property without taking any enquiry though
the property was in possession of the tenant. Held that the vendee would be deemed to
have notice of the prior agreement in view of Section 3 of T.P.Act.
Constructive Notice.-- The explanation in Section 3 of the Transfer of Property Act, which
provides for fixing a party with constructive notice in respect of registered transactions,
contains a proviso that in order to amount to constructive notice, (1) the instrument has been
registered and its registration completed in the manner required by the Registration Act and
the Rules made thereunder, (2) the instrument has been duly entered or filed in books kept
under Section 51 of the Act, and (3) The particulars regarding the transaction to which the
instrument relates have been correctly entered in the indexes kept under Section 55 of the
Act.
Constructive notice has roughly been defined as knowledge which the court imputes to a
person upon a presumption so strong that it cannot be allowed to be rebutted that the
knowledge must have been obtained. This legal presumption arises under this section :
(1) In relation to a fact -
(a) when but for wilful abstention from an inquiry which a person ought to have made he
would have known the fact; or
(b) When but for gross negligence he would have known it;
(2) In relation to a document compulsorily registrable;
(3) In relation to actual possession;
(4) In relation to a notice to an agent.
The possession of a small part of a house will not put a purchaser on constructive notice of
that person's rights as to whole house.
In Mohd. Mustaffa v. Haji Mohd. Hissa, it was held that the principle of constructive notice
cannot be extended to a case where the person who claims on the basis of prior agreement
is in possession of only a small fraction of the property. In such a case, it cannot be said that
the person who purchases the property must make an enqiry about the previous contract
from the plaintiff or any other tenant in occupation of a portion of the house.
Gross Negligence
The doctrine of constructive notice also applies when a person, but for his gross negligence,
would have known the fact. Mere negligence is not penalised. It must be gross negligence.
In Nawal Kishore v. The Municipal Board, Agra, The court felt that there was a principle on
which question of constructive notice cold rest, that principle being that all intending
purchasers of the property in municipal areas where the property is subject to a municipal
tax which has been made a charge on the property by statute have a constructive
knowledge of the tax and of the possibility of some arrears being due with the result that it
becomes their duty before acquiring the property to make enquiries as to the amount of tax
which is due or which may be due and if they fail to make this enquiry such failure amounts
to a willful abstention or gross negligence within the meaning of Section 3 of the Transfer of
Property Act and notice must be imputed to them.
It is not necessary to show that the person has been guilty to fraud or negligence amounting
to fraud. Fraud is quite different from negligence. The former connotes active dishonesty, the
latter simply implies indolence. Gross negligence is “a degree of negligence so gross that a
court of justice may treat it as evidence of fraud, impute a fraudulent motive to it and visit it
with the consequences of fraud, although, morally speaking, the party charged may be
perfectly innocent.
Registration as Notice.
The doctrine of constructive notice applies also in case of documents which are required by
law to be registered. Where any transaction relating to immovable property is required by
law to be, and has been, effected by a registered instrument, any person acquiring such
property, shall be deemed to have notice of such instrument from the date of registration.
It must be noted that registration amounts to notice only in those cases where the instrument
is required law to be registered. That is to say where the registration of a transaction is of a
transaction is optional, the fact of registration does not amount to notice.
Finally, it must be noted that the instrument must have been registered in the manner
prescribed by the Indian Registration Act, 1908. If the instrument has been registered in the
same registration sub-district as that in which the property is situate, it operates as notice
from the date of registration. If, however, the property is situate in several sub-districts, or if
the registration has been effected in another district, the registered deed will not operate as
notice until memorandum of such registration has been received and filed by the Sub-
Registrar of sub-district in which the property is situate.
Notice to Agent.
Explanation III, of Section 3 which dealt with notice to an agent ran as follows :
“A person is said to have notice of fact. When the information of fact is given to, or obtained
by, his agent under the circumstances mentioned in Section 229 of the Indian Contract Act,
1872.”
The general principle of the agency law is that an agent stands in the place of the principal
for the purpose of the business in hand, his acts and knowledge being considered as the
acts and knowledge of the principal.
Scope of the Rule.-- The general rule that the knowledge of the agent is the knowledge of
the principal has certain limitations. The notice should have been received by the agent : (i)
as an agent, (ii) during the agency, (iii) in the course of the agency business, (iv) in a matter
material to the agency business.
Exception : Fraudulent concealment of fact by agent.-- The knowledge of an agent will not
be imputed to his principal if the agent fraudulently conceals the facts. It is not sufficient to
show that the agent concealed the fact. It must be shown that the party charging the
principal with notice was party to the fraud or otherwise knew of the fraud.
In Arumilli Surayya v. Pinisetti Venkataramanamma, it was held that Sec. 100 of the Transfer
of Property Act does not apply to auction sales because the transfer within the meaning of
the Transfer of Property Act does not include an auction sale. It was added that the position
of a purchaser at an execution sale is the same as that of the judgment -debtor and his
position is somewhat different from that of a purchaser at the private sale.
(8) Ahmedabad Municipal Corporation vs Haji Abdul Gafur Haji Hussenbhai, AIR 1975 SC
1201; (1971) 1 SCC 757
The question of constructive notice depends upon facts & circumstances of each case. thr is
no presumption of contructive notice with regd to muncipal taxes. Prop of a person who
became insolvent vested in the Official Reciever of the Court - Recvr recvd bill pertaining to
taxes frm muncipality - rcvr sought courts permission to sell the property to pay the taxes,
which ws grntd to him - lapse of 5 yrs - auction -purchaser purchased property w/o actual
notice of the municipal charge - due inquiry frm purchasers behalf on acc of the pending
taxes - no info given to purchaser by rcvr - issue cud the purchaser be held to have
constructive notice of the fact tht arrears might be due - SC overruled the decision in Naval
Kishore vs Muncipal Board of Agra in which it ws held tht all the intending purchasers(in
muncipal area whr proprty is subject to muncipal tax) have a duty to enquire abt the amt of
tax due (past arrears) & if they fail to do so, constructive notice shall be imputed to them -
ccourt cited the decision in Roop Chand Jain's case whr it ws held tht no intending
purchaser is bound to presume tht taxes upon the property were nt paid in the ordinary
course, in the absence of special intimation by the muncipality (eg press notification) -
circumstances by which a deeming fiction is imputed to a party are based on wilful
absentation or gross negligence - while former suggests conscious & deliberate absentation
latter implies high degree of neglect - prsnt case muncipality ws far more negligient than the
plaintiff - question is nt whtr a person hd means of obtaining knowledge, but whtr as a
reasonable man he ought to have made it i.e. in the given circumstances thr ws a duty to
find out. In prsnt case plaintiff cudnt have reasonably have thought tht the muncipality hd nt
cared to secure the payment of taxes due & thus bound to enquire abt the matter - he did
enquire abt the rent tht ws collectd by the rcvr - hence reasonable assumption tht payment
of taxes frm rental income wud be paid by rcvr to the muncipality
(11) Ram Niwas vs Bano, AIR 2000 SC 2921: (2000) 6 SCC 685
The principle of constructive notice is applicable whn the plaintiff ws in actual possession of
the property, the word notice is of wider import than the word knowledge - a person may nt
have actual knowledge of a fact but he may have notice of it.
tenant takes suit shop on rent - later agrees to buy it fr 9200 pays 3200 as consideration
amount and agrees to pay the rest on execution of the sale deed - later resp1 to 4 buy the
shop fr 20000 - tenant files suit of sp performance resp 1 to 5(vendor & purchasers) -
purchasers deny the genuiness of the agreement to sell - S19 of Specific Relief Act provides
catergories of persons against whom the sp perfrmance of a contract may be enfrcd - among
them is included under S19(b) any transferee claiming under the vendor by a title arising
subsequently to the contract of which sp pefrmnce is sought - however a transferee fr value,
who hs paid his money in gud faith & w/o notice of the original contact, is exclded frm the
purview of the said clause
- to fall within the excluded clause a transferee must show tht
(i) he hs purchased for value the property (which is the subject matter of the suit)
(ii) he hs paid the money to the vendor in gud faith
(iii) he hd no notice of the earlier contract fr sale (sp perfrmnce of which is sought against
him)
SC obsrvd tht both TC & HC dealt with the question of purchasers knowledge of the fact -
but said the issue in question here is not knowledge but Notice(which is wider than the
scope of knowledge) - Apex court held tht purchasers will be deemed to have notice of
earlier 'agreement to sell', shld it be found to be true & valid
-----------------------------------
1[In this section “living person” includes a company or association or body of individuals,
whether incorporated or not, but nothing herein contained shall affect any law for the time
being in force relating to transfer of property to or by companies, associations or bodies of
individuals.]
COMMENTS
Right to Property
Right to obtain shares of a company is a “property” and the donee’s right to such shares
cannot be thwarted only because such shares in the name of the donee was not entered into
the register of the company; Vasudev Ram Chandra Shelat v. P.J. Thakkar, (1974) 2 SCC
323.
Transfer of Property has been defined in S. 5 of the Transfer of Property Act meaning 'an act
by which a living person conveys property, in present or in future to one or more other living
persons and “to transfer property” is to perform such act'.
'Living person' has been defined to include a company or association or body of individuals
whether incorporated or not, but nothing herein contained shall effect any law for the time
being in force relating to the transfer of property to or by companies, associations or bodies
of individuals.
Property
The Legislature has not attempted to define the word 'property', but it is used n this Act in its
widest and most generic legal sense. Section 6 says that 'property of any kind may be
transferred', etc. thus an actionable claim is property; and so is a right to a reconveyance of
land.
It is used in this dual sense of the thing and the right of the thing in S. 54 which contrasts,
'tangible immovable property' with 'a reversion or other intangible thing'. Property includes
rights such as trade marks, copyrights, patents and personal rights capable of transfer or
transmission such as debt. A share in the company is a movable property freely alienable in
absence of any express restrictions under the Articles of Association of the company. The
shares are, therefore, transferable like any other movable property and the vendee of the
shares cannot be denied the registration of the shares purchased by him on a ground other
than stated in the Article.
The words 'in present or in future' in S. 5 qualify the word 'conveys' and not the word
'property'. A transfer of property not in existence operates as a contract to be performed in
the future which is specifically enforceable as soon as the property comes into existence.
Where the operative portion of the sale-deed recorded that all rights and privileges in the
concerning the property either in present or accruing in future as vesting in the vendor were
the subject matter of the sale and that the vendor retained no right of any kind, it was held
that even the right of the vendor of reconveyance of the property was transferred by the
sale-deed.
Interests in Property
As ownership consists of a bundle of rights, the various rights and interests may be vested in
different persons. Absolute ownership is an aggregate of component rights such as the right
of possession, the right of enjoying the usufruct of the land, and as on. These subordinate
rights, the aggregate of which make up absolute ownership, are called in this Act interests in
Property. A transfer of property is either a transfer of absolute ownership or a transfer of one
or more of these subordinate rights.
Transfer
The word 'transfer' is defined with reference to the word 'convey'. This word in English Law is
its narrower and more usual sense refer to the transfer of an estate in land; but it is
sometimes used in a much wider sense to include any form of an assurance inter vivous.
Transfer must have an interest in the property. He cannot sever himself from it and yet
convey it. A lease comes within the meaning of the word 'transfer'.
The definition of transfer of property in this section does not exclude property situated
outside India or the territories to which the Act applies. It matters not that the property is
situated outside India, or in the territories where the Act does not apply; for it the transfer is
effected where the Act is in force, the rights of the parties are to be determined by the court
under the Act leaving it to the party to prove that by the lex rei sitae, ie by the law of the land
where the property is situated, the transaction in invalid or defective.
A transfer is not necessarily contractual, and included a deed of appointment. The section
does not require that the 'living person' who conveys should necessarily be the same person
as he who owns, or owned, the property conveyed by some living person; under the section,
there may be a transfer by a person exercising powers over the property of another.
The Privy Council in Girja Bai v. Sadashiv Dhundiraj, held that, partition does not give a
coparcener a title or create a title in him; it only enables him to obtain what is his own in a
definite and specific form for purpose of disposition independent of the wishes of his former
co-sharers.” A partition effects a change in the mode of enjoyment of property but is not an
act of conveying property from one living person to another. Partition is not a transfer. It is
only renouncement of existing rights in common properties in consideration is only
renouncement of existing rights in common properties in consideration of getting exclusive
right and possession over the specific plots. Partition is only a process of mutual
renunciation by which common unspecified rights in larger extents are converted into
exclusive right over specific plots.
In V. N. Sarin v. Ajit Kr. Poplai court observed that 'the true effect of partition is that each
coparcener gets a specific property in lieu of his undivided right in respect of the totality of
the property of the family'. The Supreme Court in that case was considering the provisions of
Rent Control Act and did not express any opinion on the correctness of certain decisions
holding that a partition is a transfer within the meaning of S. 53. The correct view, it is
submitted, is that a partition is not a transfer and therefore, strictly not governed by the Act,
but that many of the provisions of the Act may govern partition as embodying rules of justice,
equity and good conscience.
Partition of property does not amount to 'transfer' as contemplated by S.5. Doctrine of part
performance therefore does apply to partition. Partition is really a process, in and by which a
joint enjoyment is transformed into a enjoyment severally. Each one of the co-sharers had an
antecedent title and, therefore, no conveyance is involved in the process, as the conferment
of a new title is not necessary. The doctrine of part performance does not apply to an
unregistered deed of partition.
A partition is possible between two co-owners who may not have absolute or equal rights,
but are limited owners. A document executed in settlement of disputes between two persons
who are entitled to the same properties and who agree to divide the properties amongst
themselves is a partition, and not a settlement.
Where a joint family property is subject to mortgage, there is no transfer of ownership and
the coparceners, being its lawful owners, are competent of allot the mortgaged property in
an oral partition to any of the coparceners. The coparceners to whom the mortgaged
property is allotted, becomes its absolute owner and is entitled to redeem the mortgage.
Consequently, where the right to redeem is transferred by that coparcaener, the transferee is
also entitled to redeem the mortgage.
Property, subject to mortgage can be allotted in an oral partition to a coparcener, particularly
when such oral partition is not going to interfere with the scheme of the mortgage.
In present or in future
A transfer of property may take place not only in present, but also in the future, but the
property must be existence. The words 'in present or in future' qualify the word 'conveys',
and not the word 'property'. A transfer of property that is not in existence operates as a
contract to be performed in the future which may be specifically enforced as soon as the
property comes into existence.
Transfer intervivos; - Transfer between living persons ( both juristic & natural people )
Natural Person
A natural person is a human being.
He has characteristics of the power of Thought speech and choice.
A natural person is a real and living person.
Slaves were also natural persons.
The layman does not recognize idiot, company, corporation, idol etc. as persons.
The only natural persons are human beings.
He is also a legal person.
Natural persons perform their functions and also perform the function of legal persons.
Man is the only natural person.
There is no such division in natural person.
Natural person can live for a limited period. i.e. he cannot live more than 100 years.
Legal Person
Legal person is being, real or imaginary.
A legal person is any being whom the law regards as capable of rights or duties.
Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.
In older law, “slaves” were not recognized as persons.
In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated
as legal persons.
There are several categories of legal persons recognized by law.
“Although all legal personality involves personification, the converse is not true”.
The legal persons perform their functions through natural persons only.
There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities,
Gramapanchayats, etc.
There are two classes of corporation’s corporation sole and corporation aggregate.
Legal person can live more than 100 years. Example: (a) the post of “American President”
is a corporation, which was created some three hundred years ago, and still it is continuing.
(b) “East India Company” was established in sixteenth century in London, and now still is in
existence.
(12) V.N. Sarin vs Ajit Kumar Poplai, AIR 1966, SC 432: (1966) 1 SCR 349
On Paritition a coparcener gives eviction notice to tenant who ws inducted befr partition -
tenants contests on the same on the basis that the landlord acquired the premises through
transfer - hence it comes u/s 14(6) of Delhi Rent Control Act which doesn't entitle landlord to
demand possession till 5yrs - SC held tht a partition is not transfer of property but wud only
signify the surrender of a portion of a jt right in exchange fr a similar right frm the other co-
sharer or co-sharers hence S 14(6) DRCA doesn't apply here
(14) Mohar Singh vs Devi Charan, AIR 1988 SC 1365: (1988) 3 SCC 63
Though partition of a JF Property does nt amt to a trnsfr within meaning of S5 TPA, S109
TPA is applicable to partition on the principle of justice, equity & good conscience - Partition
of JFP(part of which ws tenanted) bw two co-owners - one co-owner filed a suit fr eviction on
grnds of bonafide need - prescribed authority ordered release of premises & made an order
granting possession - Appeal to HC - it ws contended tht landlord cannot seek to split the
integrity & unity of the tenancy coz it is impermissible in law- HC accptd the argument -
Appeal to SC - held tht S109 provides statutory excptn to the above rule and enables an
asignee of a part of the reversion to exercise all rights of the landlord in respect of the
opinion -
(15) N. Ramaiah vs Nagaraj S, AIR 2001 Kant. 395 (A will does not amt to trnsfr within
meaning of S5 TPA )
Issues
- whtr bequest of a prop under a Will is a trnsfr of property
- whtr direction to a party to maintain status quo in rgd to a property, prohibits him frm
making a testamentary disposition(via Will) & whether a Will made during the operation of
an order of status quo regarding a property is void & non est in so far as the bequest relating
to such property. - claim over property by A named in will & B succeeding as legal heir - A
files suit of temporary injunction against B to stop frm alienation - Judge passes status quo -
B dies bequeathing the property to C in her Will - TC Judge holds tht Will is against the
status quo order - HC reversed TC Judge contention - held will does nt amt to transfer as per
TPA and is governed by testamentary succession laws
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5. What kind of Property can be transferred ( Sec 6(a) and 43 )
Illustration
A has a wife B and a daughter C. C in consideration of Rs. 1,000 paid to her by A, executes
a release of her right to share in the inheritance to A's property. A dies and C claims her one-
third share in the inheritance. B resists the claim and sets up the release signed by C. The
release is no defence, for it is a transfer of a spes successions, and C is entitled to her one-
third share but is bound to bring into account the Rs. 1,000 received from her father.
Chance of an heir apparent.
A mere possibility of an heir succeeding to an estate is excluded from the category of
transferable property. The prohibition enacted in this clause is based on public policy,
namely, that if these transfers were allowed speculators would purchase the chance of
succession from possible heirs and there would be increase in speculative litigations.
Sec. 6(a), however, prohibits the transfer of a bare chance of a person to get a property.
After the death of the husband, for example, if two widows inherit their husband's properties
together, the transfer of bare chance of the surviving widow taking the entire estate as the
next heir of her husband on the death of the co-widow of her present interest in the
properties inherited by her together with the incidental right of survivorship. Such widows
could validly partition the properties and allot separate partitions to each and, incidental to
such an allotment, could agree to relinquish her right of survivorship in the protion allotted to
the other.
Nothing in this section shall impair the right of transferees in good faith for consideration
without notice of the existence of the said option.
Illustration
A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z,
representing that A is authorised to transfer the same. Of these fields Z does not belong to A,
it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not
having rescinded the contract of sale, may require A to deliver Z to him.
(16) Jumma Masjid, Mercara vs Kodimaniandra Deviah, AIR 1962 SC 847: 1962 Supp (1)
SCR 554
Sec 6(a) & S43 relates to two different subjects & tht there is no neccessary conflict between
them.
Issue whtr ToP for consideration by person representing present interest(whras actually it ws
only specs successionis) is within the protection of S43? Widow contended tht till she ws
alive, no one else hd right to possess the property - meanwhile she died - at this Jumma
Masjid intervened & contended tht the properties vested in them as the widow hd made a gift
of that property to the appellants (Juma Masjid) - Appellants contndd tht rspondnts vendor
hd only a specs successionis during the life time of the widow & thrfr the transfr is void u/s
6(a) - SC held tht even in case of spes successionis, the transfrer is precluded frm
questioning the validity of the trnsfr if he later on acquires an interest in the property -
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1[Where any such direction has been made in respect of one piece of immoveable property
for the purpose of securing the beneficial enjoyment of another piece of such property,
nothing in this section shall be deemed to affect any right which the transferor may have to
enforce such direction or any remedy which he may have in respect of a breach thereof.]
Where, for the more beneficial enjoyment of his own immoveable property, a third person
has, independently of any interest in the immoveable property of another or of any easement
thereon, a right to restrain the enjoyment 1[in a particular manner of the latter property], or
Or of obligation annexed to ownership but not amounting to interest or easement.—Where a
third person is entitled to the benefit of an obligation arising out of contract and annexed to
the ownership of immoveable property, but not amounting to an interest therein or easement
thereon,
such right or obligation may be enforced against a transferee with notice thereof or a
gratuitous transferee of the property affected thereby, but not against a transferee for
consideration and without notice of the right or obligation, not against such property in his
hands.
Illustration
A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C,
who has notice of the contract. B may enforce the contract against C to the same extent as
against A.
--
General principles;
-------------------------------------------
Where, on a transfer of property, an interest therein is created for the benefit of a person not
in existence at the date of the transfer, subject to a prior interest created by the same
transfer, the interest created for the benefit of such person shall not take effect, unless it
extends to the whole of the remaining interest of the transferor in the property.
Illustration
A transfers property of which he is the owner to B in trust for A and his intended wife
successively for their lives, and, after the death of the survivor, for the eldest son of the
intended marriage for life, and after his death for A’s second son. The interest so created for
the benefit of the eldest son does not take effect, because it does not extend to the whole of
A’s remaining interest in the property.
No transfer of property can operate to create an interest which is to take effect after the life-
time of one or more persons living at the date of such transfer, and the minority of some
person who shall be in existence at the expiration of that period, and to whom, if he attains
full age, the interest created is to belong.
COMMENTS
A covenant for pre-emption does not offend the rule against perpetuities and cannot be
considered void in law; Ram Baran v. Ram Mohit, AIR 1967 SC 747.
Section 15. Transfer to class some of whom come under sections 13 and 14.—
If, on a transfer of property, an interest therein is created for the benefit of a class of persons
with regard to some of whom such interest fails by reason of any of the rules contained in
sections 13 and 14, such interest fails 1[in regard to those persons only and not in regard to
the whole class].
COMMENTS
It has been held by the Supreme Court that although no interest could be created in favour
of an unborn person but if gift was made to a class of series of person some of whom were
in existence and some were not, it was valid with regard to the former and invalid as to the
latter; Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, (1953) SCR 232.
(2) This section shall not affect any direction for accumulation for the purpose of—
(i) the payment of the debts of the transferor or any other person taking any interest under
the transferor; or
(ii) the provision of portions for children or remoter issue of the transferor or of any other
person taking any interest under the transfer; or
(iii) the preservation or maintenance of the property transferred,
and such direction may be made accordingly.
(25) Ram Baran vs Ram Mohit, AIR 1967 SC 744: (1967) 1 SCR 293
Rule against perpetuity applies only to trnsfr of property & nt to agreeement/contracts
2 bros - jointly owned - made a covenant tht if any one of them wntd to dispose the prop the
1st right to buy the prop shall be of the other bro (pre emption right created in favor of both) -
one bro sold his share to 3rd person on bros refusal to buy the same - other brothr sold his
share w/o offering it to his brother - transferee went wantd to sell it further - bro moved court
against tranfree - pre emption clause - trnsfree contended tht pre-emption clause hit by rule
against perpetuity - SC agreed w/ TC & HC - ruled tht pre-emption clause not hit by rule
against perpetuity
(26) R Kempraj vs Burton Son & Co, AIR 1970 SC 1872: (1969) 2 SCC 594
The rule against perpetuity does not apply to a lease - lease 10yrs provided fr an option to
leasee to renew the same fr further 10yrs as desired on the same terms - leasee befr expiry
of 10yrs wntd to renew lease - lessor did nt comply - leasee filed suit fr performance of
agreement in lease for renewal - Issue ws whthr clause fr renewal of lease can be regarded
as creating an interest in property & thus hit by rule against perpetuity and hence is void? -
Court obsrvd tht rule against perpetuity is founded on the principle tht the liberty of alienation
shall nt be exercised to its own destruction - A perpetuity(creation of remote interest in
future) is a limitation which places the property for ever out of reach of the exercise of power
of alienation - owing to sec 105 TPA a lease is a transfr of right to enjoy property fr a certian
time or in perpetuity - even then interest remains in the lessor, the reversioner - thus the
lease is prsnt case is nt hit by rule of perpetuity - clause relating to renewal of lease does not
create right in property thrfr does fall within the ambit of S14 TPA
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A vested interest is not defeated by the death of the transferee before he obtains
possession.
Explanation.—An intention that an interest shall not be vested is not to be inferred merely
from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in
the same property is given or reserved to some other person, or whereby income arising
from the property is directed to be accumulated until the time of enjoyment arrives, or from a
provision that if a particular event shall happen the interest shall pass to another person.
(27) Rajesh Kanta Roy vs Shanti Debi, AIR 1957 SC 255: 1957 SCR 77
principle to decide whtr interest taken by beneficiaries undr trust is whtr vested or contingent
- owner makes elder son trustee fr entire property - made a provision fr the property to be
divided in fvr of two sons - but the interest which either of them to get ws made subject to
happ of 2 events - (i) discharge of all debts of the settler (ii) at the death of the settler the
trust coming to an end
Issue - whtr interest created by the trust deed ws vested or contingent
Death of settler ws nt an uncertain event
Discharge of death ws an uncertain event
Court obsrvd tht it is now well settled tht such a devise(payment of debts) confers an
immediate vested interest - the words of apparent, postponement, being considered only as
creating a charge - the question is really one of intention to be gathered by a comprehensive
view of all terms of the document
Court dilineated the scheme of the trust deed as
(i) Specified lots were earmarked fr each of his two sons
(ii) Present income out of those lots were to be appld fr the discharge of debts
(iii) Any surplus which remained were to go to the very person to whom the lot ws to belong
(iv) in the event of any of the two sons dying befr the termination of the trust his interest ws
to devolve on his heirs
SC said these arrangements taken together indicate tht wht ws postponed ws nt the vesting
of property in the lot themselves but tht the enjoyment of the income throf - the enjoyment of
income ws burdened with certian monthly payments (to sons) & with the obligation to
discharge debts thr frm notionally prorata - All of which taken together constitute the
application of income fr the benefit of the sons.
7[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall
be deemed to commence from the date of the presentation of the plaint or the institution of
the proceeding in a Court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order and complete satisfaction or
discharge of such decree or order has been obtained, or has become unobtainable by
reason of the expiration of any period of limitation prescribed for the execution thereof by
any law for the time being in force.]
COMMENTS
(i) This section comes into existence from the point of the institution of the suit and continues
to survive till the satisfaction of the decree. The petitioners were as much bound by the
decree and judgement dated 16th August, 1973 and their transferor; Abdul Aziz v. District
Judge, AIR 1994 All 167.
(ii) The effect of doctrine of his pendens as embodied in section 52 of Transfer of Property
Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it
subservient to the rights of the parties thereto under the decree or order which may be made
in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if
he happens to be third party person even if he is not a party to it. The transfer will remain
valid subject, however to the result of the suit; K.A. Khader v. Rajamma John Madathil, AIR
1994 Ker 122.
Meaning of proceedings;
Collusive suits;
Voluntary and Involuntary alienations - Even Involuntary alienations are subject to lis
pendens
(28) Jayaram Mudaliar vs Ayyaswamy, AIR 1973 SC 569: (1972) 2 SCC 200
Private sale of a family property by a Karta, pending a suit fr partition instituted by a member
is hit by S52 & does nt bind the family. The purpose of S52 TPA is nt to defeat any just &
equitable claim, but only to subject them to the authority of the court which is dealing with
the property to which claims are put forward. Pre-existing liabilities of the Karta alone have
no priority over the rights of other members of the Joint Family
(29) Supreme General Films Exchange Ltd vs Maharaja Sir Brijnath Singhji Deo, AIR 1975
SC 1810: (1975) 2 SCC 530
A lease of immovable property is affected by the doctrine of lis pendens as it created new
rights during the pendency of the litigation.
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(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose
of securing the payment of money advanced or to be advanced by way of loan, an existing
or future debt, or the performance of an engagement which may give rise to a pecuniary
liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and
interest of which payment is secured for the time being are called the mortgage-money, and
the instrument (if any) by which the transfer is effected is called a mortgage-deed.
(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the
mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or
impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall
have a right to cause the mortgaged property to be sold and the proceeds of sale to be
applied, so far as may be necessary, in payment of the mortgage-money, the transaction is
called a simple mortgage and the mortgagee a simple mortgagee.
(c) 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 sale:
1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition
is embodied in the document which effects or purports to effect the sale.]
(e) 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 proviso that he will re-transfer it to the mortgagor upon payment of the
mortgage-money as agreed, the transaction is called an English mortgage.
COMMENTS
Usufructuary mortgage
(i) The mortgagor had borrowed Rs. 1000 from the mortgagee and the possession of the
building was handed over to the mortgagor. The mortgage money was to be repaid within a
period of six months and in case of default the mortgagee had the right to bring the property
to sale and realise the amount. The document therefore which was described as
usufructuary mortgage was held to be anomalous mortgage and not usufructuary mortgage
as it had character of a simple mortgage too as mortgagee was given the right to sell the
property to realise the mortgaged amount; Hathika v. Puthiyapurayil Padmanathan, AIR 1994
Ker 141.
Where the principal money secured is less than one hundred rupees, a mortgage may be
effected either by 3 [a registered instrument] signed and attested as aforesaid, or (except in
the case of a simple mortgage) by delivery of the property.
Section 59A: References to mortgagors and mortgagees to include persons deriving title
from them
Unless otherwise expresslyprovided, references in this Chapter to mortgagors and
mortgagees shall bedeemed to include references to persons deriving title from them
respectively.
Provided that the right conferred by this section has not been extinguished by act of the
parties or by 3[decree] of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called
a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if
the time fixed for payment of the principal money has been allowed to pass or no such time
has been fixed, the mortgagee shall be entitled to reasonable notice before payment or
tender of such money.
COMMENTS
Extinguishment of mortgage right
When a mortgagee acquires a portion of the equity of redemption, the mortgage is not
extinguished completely. There can be only a pro tanto extinguishment of the mortgage right
to the extent of the mortgagee acquiring the mortgagor’s interest and so far as the other
sharer of the equity of redemption is concerned, the mortgage will subsist; Madhavan Nair v.
Ramankutty Menon, AIR 1994 Ker 75.
Nothing in this section applies to the charge of a trustee on the trust-property for expenses
properly incurred in the execution of his trust, 2[and, save as otherwise expressly provided
by any law for the time being in force, no charge shall be enforced against any property in
the hands of a person to whom such property has been transferred for consideration and
without notice of the charge].
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Definitions of Mortgage;
Kinds of Mortgages;
Mode of execution of mortgages;
Redemption and Foreclosure of mortgages;
Clog on equity of redemption;
Distinction between mortgage and charge;
(34) Pomal Kanji Govindji vs Vrajlal Karsandas Purohit, AIR 1989 SC 436: (1989) 1 SCC
1935: (1989) 1 SCC 458
The maxim 'Once a Mortgage, always a Mortgage & avoidance of provisions obstructing
redemption as "clogs on redemption" are expressions of this judicial protection - its a settled
law in England & in India tht a mortgage cannot be made altogether irredeemable or
redemption made illusory - 99 yrs mortgage (anomalous mortgage) - no payment possible
befr 99 yrs - no periodical payment possible - mortgager hd right to demolish structure and
create new buildings - suit fr possession befr 99 yrs - court held in favor - said given
condition ws clog on redemption
(35) Shivdev Singh vs Sucha Singh, AIR (2000) SC 1935: (2000) 4 SCC 326
The doctrine of clog on the equity of redemption hs to be moulded in modern conditions; the
rule against a clog on the equity of redemption empowered the courts to relive a party frm
this bargain - Rs 7000 - mortgage 99yrs - usufructs fr 26yrs - sum meagre - appellants took
undue adv of mortgagor's financial condition
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Acceptance when to be made.—Such acceptance must be made during the lifetime of the
donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
COMMENTS
Validity of gift
Gift deed executed by defendant in favour of plaintiff with respect of property of her
deceased husband. Defendant was not legally wedded wife of deceased. She being
concubine was not entitled to inherit property. Gift deed executed by her is not valid; P.
Jayaramaiah v. Aragonda Munemma, AIR 2005 AP 26.
Section 123. Transfer how effected.—For the purpose of making a gift of immoveable
property, the transfer must be effected by a registered instrument signed by or on behalf of
the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by
a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
COMMENTS
Unregistered gift of immovable property
Under section 123 a gift of immoveable property cannot pass any title to the donee if it is not
registered. Any oral gift of immoveable property cannot be made in view of the provision of
section 123 of the Act, mere delivery of possession without written instrument cannot confer
any title; R.N. Dawar v. Ganga Ram Saran Dhama, AIR 1993 Del 19.
The donor and donee may agree that on the happening of any specified event which does
not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the
parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly
or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in
which, if it were a contract, it might be rescinded.
Nothing contained in this section shall be deemed to affect the rights of transferees for
consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in
case B and his descendants die before A. B dies without descendants in A’s lifetime. A may
take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back
at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as
to Rs. 10,000, which continue to belong to A.
Definition of gift;
Gifts are a kind of transfer of property in Transfer of Property Act(hereinafter referred as the
Act) in India. Section 122 of the Act defines Gift. This is the transfer of property made
voluntarily. There will be no consideration for the transfer.
Who are the Parties of Gift?
The parties in gift are known as donor and donee. The person who transfers the property by
way of gift to another is known as donor. The person in whose favour property is transferred
by gift is known as donee.
Elements of Gift
- There must be transfer of ownership of the property
- The transfer must be of an existing property - nt future - corporeal or incorporeal - if gift
comprises both future * existing prop then its void wrt future property - though transfer may
be in future - prop must exist at time of date of gift - shld be a transferable prop
- Both movable and immovable property can be transferred.
- The transfer must be voluntarily.
- The transfer must be gratutious or without consideration.
- The property must be accepted by or on behalf of the person to whom it is transferred.
- donor must be competent - minor cannt make gift, trustee cannot make gift out of trust
property unless authorized by terms of the trust