Property Law Assignment

Submitted By – Submitted To –

Darshit jain Dr. Monica Yadav

BBA LL.B.(H) Faculty Of Law

A50821520025 Amity Law School, Gurgaon

Q1 There is no comprehensive definition of the term “immovable property” in the TPA.

Each case has to be decided by its own merits. Comment

A1

 In TPA it is merely lays down that immovable property does not include standing
timber, growing crops and grass.
 It is given under section 3 of TPA.
 In the section 3(26) of general clauses act, 1897, a definition of immovable property is
defined.
 It states that immovable property include land, benefits to arrive out of land, things
attached to earth or permanently fastened to anything attached to earth but not
standing timber, growing crops and grass.
a Land – The land includes earth’s surface (can be water surface), the column of
space above the surface and the ground beneath the surface (including minerals)
b Benefits to arise out of land – Every benefit arriving out of immovable property and
every interest in such property is also regarded as immovable property.
In Ananda Behera v. State of Orrisa right to catch fish from Chilka lake, over a
number of years was held to be a benefit arising out of land thus to be an immovable
property.
In Shanta Bai v. State of Bombay right to enter land and to cut and carry wood out of
land over a period of 12 years is said to be an immovable property.
c Things attached to earth – Section 3 of TPA defines that “things attached to earth
include” Things rooted in earth (examples trees but not standing timber, growing
crops and grass), Things imbedded in earth (example walls, handpump), Things
attached to what is so imbedded to earth.
 To determine what are the things which are included in “things attached to what is so
imbedded in earth” 2 test are there.
1) Mode of annexation – If the property is resting on the land on its own weight
without any support it is said to be movable property unless contrary is proved. If it is
even slightly fixed to land or is caused to go deeper is the land it is deemed to be
immovable property.
2) Purpose of annexation – If the purpose of the property is to permanently benefit
other immovable property, then the said property is said to be immovable property. If
the purpose is to enjoy the chattel itself the it is said to be movable property.

 Everything therefore depends upon the circumstances of each case. If the intention is
to make articles part of land, they do become part of land therefore immovable
property.

Q2 Explain whether the following are movable or immovable property:

1 A, the owner of a forest enters into a contract with B, and grants to him a right to
enter his forest and cut all kinds of plants and trees above the height of 10 feet for a
period of five years.

2 A right to enter the lake and catch fish for a period of five years.

3 Machinery installed by a person on his own land for running temporary cinema in
a purely temporary structure.

A2

 1 The right to enter the forest and cut down all kind of plants and trees of 10 feet for
period of five years is an immovable property as it is a benefit arising out of land and
it is considered so in an case Shanta bai v. state of Bombay.
 2 The right to enter the lake and catch fish for a period of five years is considered to
an immovable property as it is considered benefits arising out of land as in decided in
case Ananda Behera v. State of Orissa.
 3 The machinery installed will be considered as a movable property as decided in the
case Bamadev v. Monorama Raj that the machinery was meant to accelerate
beneficial enjoyment not of the land and the it is also not attached to land but
temporary shed on the land.
Q3 Explain the meaning of the expression “Transfer of Property” as defined in TPA

A3

 Transfer of property is defined in section 5 of TPA, 1882.

 Transfer of property means an act by which a living person conveys property
- To one or more other living being
- To himself
- To himself and one or more living being
 Living person includes a company, association or body of individuals, whether
incorporated or not.
 The word property has not been defined in the act but has been used in widest sense.
 This includes every possible right and interest which a person can acquire, hold and
enjoy.
 The word transfer has also been used in a wide sense, it means either transfer of all
rights and interests in the property or transfer of one or more subordinate rights in the
property.
 A transfer of property does not necessarily involve the execution of an instrument of
transfer. In case of movable or immovable property of value less than Rs. 100,
transfer may be affected by delivery of possession.
 Section 5 of TPA permits the consequences of the transfer to take effect in the present
or future.
 Although the transfer of property may be in the present or future, the property must be
in existence at the date of transfer. There can be no transfer of future property.
 The acts contemplate following kinds of transfer –
- Sale
- Mortgage
- Lease
- Exchange
- Gift
- Release deed
 Transactions that not amount to transfer of property –
- Partition
- Charge
 - Relinquishment
- Surrender
- Easement
- Will
- Compromise
- Family arrangement

Q4 Distinguish between ‘spes successions’ and the rule of ‘feeding the grant by estopple’

Under section 43.

A3

 Spes Successionis comes under section 6(a) of TPA.

 Section 6 talks about that any type of property can be transferred and the person
denying the transferability of property must prove either some law or custom which
restrict the right of transfer of property.
 Section 6 is a negative section as it mentions which kinds of property cannot be
transferred.
 The chance of an heir apparent succeeding an estate, The chance of relation obtaining
a legacy on the death of kinsman, any possibility of the same nature cannot be
transferred.
 The chance of heir apparent inheriting an estate is called Spes successionis.
 The transfer of this chance will be void ab initio.
 Section 43 talks about transfer of property by an unauthorised person who
subsequently acquired the proper rights over the property.
 According to this section if a person fraudulently misrepresents themselves to transfer
interest over the immovable property more than what he owns and later on acquired
the proper interest over the property then if the transferee wants to go ahead with the
contract transferor has to sell the property whether he want to or not.
 The difference between them is –
- Section 6(a) is based on Rule of substantive law whereas Section 43 is based
on Rule of estoppel
- Section 43 only apply to those cases where the transaction is for consideration,
it does not apply to gratuitous transactions whereas Section 6(a) also work in
the case of gratuitous transactions
 - Section 6(a) applies both to movable and immovable property while section 43
applies to only immovable property.
- Under section 6(a) the fact that is transaction of spec successionis is known to
both parties, there is no fraudulently misrepresentation from the side of the
transferor but in section 43 there is fraudulently misrepresentation from the
side of the transferor.
- Under section 6(a) the transaction is void ab initio but in section 43 the
transaction is voidable depending upon the decision of the transferee whether
he want to go ahead with the contract or not.
 In the case of Jumma masjid v. K. M. Deviah the facts were like a Joint Hindu Family
of three brothers executed a usufructuary mortgage for a period of 20 years. One of
the brother’s died without leaving any heirs and other brothers died leaving their
widow wives but not any heir. The brothers had sisters whom then bore three
grandchildren and heir to the property. The property will go to the heirs only when
both the widows died. One of the heirs sell the property when one widow was alive.
She refuses to sell the property. Before the second appeal in the court, she died while
gifting her property to Jumma masjid. The issue was whether the property should go
to Masjid or to the Transferee. The court held that the property will went to
Transferee according to section 43 and there is no conflict between section6(a) and
section 43, one is based on rule of substantive law whereas other is based on rule of
estoppel.

Q5 A, a Hindu who has separated from his father B sells to C three properties X, Y, Z
representing that A is authorized to transfer these properties. Z does not belong to A, it
having been retained by Bon the partition. But on Bs' death A as heir obtains Z. C, not
having rescinded the contract of sale, may require A to deliver Z to him. Would he be
successful? Decide.

A5

 Yes, C will be successful in property Z from A as section 43 of TPA will be applied

in this case.
 Section 43 talks about transfer of property by an unauthorised person who
subsequently acquired the proper rights over the property.
  According to this section if a person fraudulently misrepresents themselves to transfer
interest over the immovable property more than what he own and later on acquired the
proper interest over the property then if the transferee want to go ahead with the
contract transferor has to sell the property whether he want to or not.
 The rule incorporated in this section deals with such transfer of property where the
transferor has no capacity to make such a transfer from the very beginning but has
still decided to enter into a transaction with respect to the title of the property and then
makes the other party act on this representation and then acquires the title of the
property in the future.
 Then if the transferee still wants to continue the contract, then the transferor has to
give the property to the transferee whether he want or not.
 The rule of estoppel is based on two doctrines namely doctrine of estoppel and
equitable doctrine.
- Doctrine of estoppel prevents a person who promise more than what he can
perform from claiming his incompetency as a legitimate excuse to avoid his
liabilities in a situation when he acquires competency to fulfil his promise.
- Equitable doctrine states that such person who make such promise is
compelled to make good his promise when he became competent to perform
it.

Q6 Discuss restraints on alienations and decide the following in light of judicial

precedents:

a) A sell his house to B with a condition that he would not sell it for a period of 10 years.
After 10 years, he could sell the house only at market price but to a person from the
religious community of A only. ignoring these conditions, B donated the house to an
orphanage after 2 years. A files a suit for cancellation of sale. Will he be successful?

b) A sells half of the land adjoining his house to B with the direction that he would leave
an open space of six feet on the left side of the land by not carrying any construction so
that air and light of A's house is not adversely affected. B, however, started construction
on the entire land in violation of the conditions in the transfer deed. A goes to court and
wants an injunction from the court restraining B from building on the entire land. Will
he successful?

A6
A)

 A will not be successful in the suit as section 10 of TPA will be Applied here.
 Section 10 talks about Conditions on restraining alienation
 In this it is lays down that where a property is transferred subject to a condition
absolutely restraining the buyer from parting with the property then the condition will
be void and buyer can sell the property any way he wants.
 In the above illustration conditions like buyer would not sell the house for a period of
10 years and after that he can it only at a market price will be included in absolutely
restraining conditions and according to section 10 conditions will be void.

B)

 In the above illustration A will be successful in the suit.

 It will be considered in section 10 of TPA.
 Section 10 lays down that only conditions which are absolutely the buyer in selling
the property will be void but it is not the same in the case of partial restraints
 The above conditions will come under the partial restraints and thus will not be void
and buyer ha to follow these conditions.

Q7 Define actionable claim. Decide whether the following are actionable claims or not
giving reasons:

- Secured debt or mortgage

- Right to recover damages for breach of contract
- Arrears of rent
- Debt passed by court decree

A7

 Actionable claim in general terms signifies a claim or a debt for which you can take
an action, which means there is a claim and you can approach a court for the
enforcement of the same.
 An actionable claim means any –
- Unsecured debt
- Any interest in immovable property not in possession of the claimant
  There are two types of debt secured debt and unsecured debt
 Unsecured debts are those in which the person who gave the debt does not have any
security from which he can recover the amount.
B
 A) Secured debt or mortgage will not be an actionable claim as it is a secured debt
and actionable claim does not
 B) Right to recover damages for breach of contract is not an actionable claim as after
breach of contract nothing is left but a right to sue for damages which is not beneficial
interest in the contract as it is a mere right to sue for non-performance of the contract.
It is given under the case “Hirachand v. Nemchand”
 C) Arrear of rent will be an actionable claim as there is no security as given under the
case “Daya Debi v. Chapala Devi”
 D) Debt passed by court decree is not an actionable as here the action has already
been taken while an actionable claim means something which can be enjoyed only
after taking action. It is given under the case “Afzal v. Ram Kumar Bhudra”

Q8 Section 5 of TPA provides for transfer inter vivos whereas the law also provides for
transfer in favour of an unborn person. How can a valid transfer to be made in the
favour of unborn person. Explain.

A8

 Valid transfer in favour of unborn person is given under section 13 of TPA.

 The term “unborn” here refers to not only those who are conceived but are not born
but even those who are yet not even conceived.
 Section 13 gives effect to general rule that transfer can only be done between living
beings. There cannot be a direct transfer to a person who is not born yet.
 It is because of this Section 13 uses the expression “transfer for the benefit of” not
transfer to an unborn person.
 There are two conditions to the transfer property for the benefit of unborn person –
- Prior interest – First the property should be given to a third person for live and
after his death to the person for whose benefit the interest is created.
- Absolute interest – The entire property should be given to the unborn person.
Property cannot to transferred to a person for life who has not been born yet.
  Section 13 provide specific mechanic to transfer for the benefit of an unborn person.
It is as follows –
- No direct transfer – The person intending to transfer the property for the
benefit of an unborn person should first transfer the property to a third person
for life and then absolutely to unborn child.
- Enjoyment by person having live interest – Till the person whose life interest
is created is alive, he will hold the possession of the property and enjoy its
usufructs.
- Possession of unborn person – On the day the unborn is born the property will
be vested to him but he will get the possession over the property only when
the person who has property for life will die.

Q9 A transfer his house to B who was unmarried on the day of the transfer for life and
after him the property is to vest in the children of B in the following manner – “B’s
daughters would take half of the total property for their life and after them the
property would go to their children absolutely”. The sons of B would take their half
absolutely. Discuss the status of these transfers.

A9

 In the above case section 13, 14, 15, 16 will be applied.

 Section 13 talks about Transfer for the benefit of an unborn person
 As in the above case A first transferred his property to B for life and then to the
unborn children.
 The status of Transfers will be as follows –
- The condition that half of the property will go daughters of B after his death
will be void as section 13 denies transfer of property to an unborn person for
life.
- The condition that the property will then go to children of daughters absolutely
will also be void as according to section 16 of TPA if the interest created for a
person fails then any interest created in same transaction will also be void.
- The half property will go back to A.
- The other half of the property which is to be given to sons of B absolutely
after his death will be valid.
 - Section 15 will apply here as this section says that if on the transfer of
property if an interest which is created for the benefit of class of people fails
do to reason given under section 13, 14 of TPA then such transfers will be
invalid for that only and not for others.
- The transfer will remain valid for other persons of the class.

Q10 Distinguish between a vested and contingent interest. Discuss whether an interest is
vested or contingent in the following cases –

a) A property is transferred to R under a trust deed subject to two conditions

- The discharge of settlor’s debts
- The death of settlor himself.
b) A property is transferred to A for life and after his death to B.

A 10 A) Difference between vested and contingent interest

 Vested interest is given under section 19 of TPA whereas contingent interest is given
under section 21 of TPA.
 Vested interest is an interest which is created in favour of a person where time is not
specified or a condition of the happening of a specified certain event. The person
having the vested interest does not get the possession of that property but has the
expectancy to receive upon happening of a specified certain event. Whereas
contingent interest is created in favour of a person on a condition of the happening of
a specified uncertain event. The person having the contingent interest does not get the
possession of that property but has expectancy to receive it upon happening of that
event butt will not receive the property if the event does not happen as the condition is
not fulfilled.
 Vested interest involves a specified certain event. A certain event means an event that
will eventually happen whereas contingent event involves a specified event. There is a
chance of the happening or non-happening of that particular event.
 Vested interest does not entirely depend on the condition as the condition involves a
certain event. It creates a present right that is in effect immediately although the
enjoyment is postponed to the time prescribed in the transfer. Whereas contingent
interest is entirely dependent on the condition imposed on the transfer. Interest is only
transferred to transferee on the fulfilment of the condition imposed.
  In vested interest the right of ownership is created as soon as the interest is vested
whereas right of ownership is a mere chance to be having the ownership rights.
 Death of the person who is having this interest will not have any effect over that
interest as after the deceased the interest will vest in his legal heirs whereas death of
the transferee before getting the possession of the property will result in the failure of
continent interest and the property will remain with the transferor.
 Vested interest is a Transferable and heritable right whereas contingent interest is a
transferable right but whether it is heritable or not, it depends upon the nature of such
any transfer and the condition.
 In Vested interest there is present, immediate right even when its enjoyment is
postponed whereas there is no present right of enjoyment there is no present right of
enjoyment, there is mere expectancy of having such a right.
B)

1.

 A property is transferred to R under a transferred to R under a trust deed subject to

two conditions that the discharge of settlor’s debts and the death of the settlor himself.
 The condition above will be a vested interest as the above illustration is based on the
case law that is Rajesh Kanta Roy v. Shanti Debi.
 In the case a trust deed was created by Rajesh for the payment of debts and the
surplus was to be used for the benefit of A and his two sons. The trust deed was to
come to end with the total payment of debts and the death of the settlor and the
property was to vest in the two sons or their legal heirs as the case may be. After the
execution of the said deed Rajesh Kanta Roy died.
 The issue before the court was regarding the nature of interest created in favour of the
sons, whether it was vested or contingent. The trust deed was to come to end on the
happening of two events –
- The discharge of all debts specified in the schedules
- The death of the settlor himself
 Out of these two events that were specified, death of the settlor was a certain event
but the same could not be said about the discharge of debts.
 The court held that the interest of the sons was a vested interest, as whether the sons
took a vested or a contingent interest would depend on the intention of the settlor
 which was to be gathered from the language of the trust. The emphasis of the settlor
in the case was not as much on the repayment of the debts as it was on the benefits
coming under it to the sons and his heirs.

2.

 The property which is to be transferred to A for life and after his death to B will
be a vested interest in B’s favour as the death of the A is a certain event that will
happen eventually.

Q 11 Explain and illustrate the doctrine of Lis pendens. A makes a gift of land to B. C
sues A for possession of the land. While this suit is pending, B transfers the land to D, A
dies and C obtains a decree for possession against B as legal representative of A. Is D’s
title to the land affected by the rule of Lis pendens as to subject to C’s decree? Decide.

A11

 The doctrine of Lis pendens is given under section 52 of TPA.

 The expression Lis pendens means a pending litigation
 The doctrine of Lis pendens is based on the maxim ut lite pendente nihil
innovateur which means nothing new should be introduced during the pendency
of a suit
 The doctrine is only applicable on immovable property.
 Doctrine of Lis pendens provide that where a suit or proceeding is pending in any
court between two persons with respects to any immovable property, the property
cannot be transferred or otherwise dealt with by any party, except under the
authority of the court.
 If any party transfers or otherwise deals with that property, the transferee will be
bound by the result of the suit or proceeding, whether or not he had notice of the
suit or proceeding.
 Essentials of the doctrine
- There must be a pendency of a suit
- The suit must be pending in a competent court
 - The suit must not be collusive
- A right to immovable property must be directly and specifically in
question in that suit or proceeding
- The property in dispute must be transferred or otherwise dealt with by any
party to the litigation.
- The alienation must affect the rights of the other party.
 For example, there is dispute between A and B with regard to ownership of
property x. A file a suit against B in the court of law.
 A may either win or lose the suit. If he won, he will get the property, if he loses, B
get the property.
 Now suppose during the pendency of the suit, A professing to be owner of
property, sells it to C.
 If the suit ends in A’s favour, no difficulty will arise but if B wins the suit, then C
cannot retain the property.
 C is bound by the decree of the court and must return the property to B. He cannot
take a plea that he had no notice of the pending litigation.

 In the above illustration in which A makes a gift of land to B. C sues A for possession
of the land. While this suit is pending, B transfers the land to D, A dies and C obtains
a decree for possession against B as legal representative of A.
 D’s title to the land will be not affected by the doctrine of Lis pendens as subject to
C’s decree
 In the above illustration all the conditions are not fulfilled which required doctrine to
take action
 As the property is given to B by the A before the suit filed by C against B.
 C filed the case against A who does has any interest in that property as property is
given to B, A is not the right person in the party of the suit as suit should be filed
against B by C not A.
 B is the third party in the suit and doctrine of Lis Pendens does not work against a
third person who is not a party in the suit.
 Therefore, D is bound not by the decree of the court and must return the property to
C. He cannot take a plea that he had no notice of the pending litigation.
Q 12

A) Discuss the essential conditions of doctrine of part-performance.

B) A entered into a written contract with B to take B’s house on rent for 2 years at Rs.
1000/- per month. A gave Rs 12000/- to B as one year’s advance rent and took
possession of only one room as B promised to hand over the possession of the remaining
portion after his son’s wedding which was to take place after 3 days. After the wedding,
B did not give possession of the remaining portion of the house to A. Thereupon A filled
a suit for possession under section 53 of TPA. Decide.

A12

A)

 Doctrine of part performance is given under section 53A of TPA.

 Doctrine of part performance prevents a transferor from taking any advantage on
account of non-registration of documents.
 It is on the basis that the transferee has performed his part of the contract and in
pursuance to that performance, the transferee has taken possession of some part of the
property
 The following conditions must be required to be consider under doctrine of part
performance –
 Existence of a contract – There should be a contract in writing signed by the
transferor or by agent on his behalf. When there is no agreement or a void
agreement, the doctrine cannot be applied.
- Doctrine of part performance is only applicable where the contract for
transfer is valid in all respects.
- This doctrine is only applicable only in the case of transfer of
immovable property.
 Act of part performance – The transferee should have taken possession of the
property, or if he being already in possession should continue in possession
and should have done some act in furtherance of the contract.
- The payment of money is not a sufficient act of part performance
because the payment can be explained on many other grounds and
does not suggest the existence of a contract relating to the land.
 - Taking the possession of property has been held to be sufficient act of
part performance because in such cases the courts find the parties in a
different position from that in which according to their legal right
where there is no contract.
 The transferee should be willing to perform – The transferee should have
performed or should be willing to perform his part of the contract.
- For, no equities can arise in favour of a person who is not willing to
perform his part of the contract
- Accordingly, a person who has taken the possession of property
cannot resist dispossession if he is not willing to pay the prise agreed
upon.
 Transfer for consideration – This doctrine is applicable when written contract
must be for the transfer of an immovable property for consideration.
- The written contract on the basis of which the property has been
possessed must be clearly suggest the transfer of property, If the
contract is confusing this section cannot be made applicable.

 In the above illustration Section 53A cannot be applied.

 Section 53A of TPA cannot be used to obtain the possession of property, but it can be
used to retain the possession of property.
 Therefore, A is entitled to maintain possession of one room which he received from
the transferor, but he cannot use section 53A of TPA to obtain possession of the house
which was never given to him.
 As B does not full fill the requirement of section 53A that the transferee should have
taken the possession of the whole house, which in the above illustration he does not.
 It is because this would amount to enforcement of rights rather than defending the
rights under section 53A.

Q13 Explain the right of election as provided for section 35 of TPA with illustration?

A13

 Section 13 of TPA provides that when a party transfers a property over which he does
not have a transfer right and the advantage bestowed upon the initial owner of the
 property is entailed in the transaction, the original owner of the property must select
whether to recognise the transfer of the property or reject it. In order to settle property
disputes between individuals, it is an essential aspect of the Transfer of Property Act
1882.
 It provides that when a party transfers a property over which he does not have a
transfer right and the advantage bestowed upon the initial owner of the property is
entailed in the transaction, the original owner of the property must select whether to
recognise the transfer of the property or reject it. In order to settle property disputes
between individuals, it is an essential aspect of the Transfer of Property Act 1882.
 The following are the Conditions for the application of the election doctrine:
 In order for a property to be transferred, the transferor must claim possession
of the property being transferred.
 In order for a transfer to be legal, the owner of the property being transferred
must get some kind of benefit from the transferor.
 This is a two-part transaction: transferring something and receiving something
in exchange for it.
 The property owner must get the benefit directly.
 The benefit must be provided to him in a similar manner as he now holds
ownership of the property.
 In the case of “Mst Dhanpatti v Devi Prasad and others” The Supreme Court
decided the above conditions
 It is possible for the owner to make a direct or indirect election. In a direct election,
candidates are nominated and elected only on the basis of what they say about their
preferred alternative.
 There are two requirements that must be met in order for an indirect election to be
valid:
- He must be conscious of his responsibility to elect and

- When making an election, there must be evidence that the candidate

was aware of conditions that might affect the decision of a reasonable
man.

 The individual who receives the benefit may enjoy it for two years without making
any complaint. 
  When the donee behaves in such a way with the property given to him that it becomes
difficult to restore it to the original owner in its original condition, the election is
deemed to have taken place.
 The exceptions for this section are -

 The transferor is not required to forego any other benefits that he obtains
through the same transaction if he expressly states that a specific
advantage will be granted to the owner of the property that the transferor
wishes to transfer and that such benefit is in substitution for that property.
 If the original owner accepts the benefit, it will be deemed an election by
him to affirm the transfer, if he is aware of his obligations and
responsibilities and the conditions that would influence a sensible
(rational) man into making an election.
 After receiving the benefit for a period of more than two years without
taking any action to show dissatisfaction, it is reasonable to presume that
the person receiving the benefit is aware of the conditions.
 A year after the transfer of property, the transferor would urge him to
choose his preference if the original owner does not do so. If the original
owner does not elect within a reasonable period of time, the validity of
the property transfer will be deemed to be his preference.
 When a minor is involved, the election period is postponed until the
person attains the majority, unless he or she is represented by a guardian.

 Approximate compensation for the transferee is based on the estimated cost of the
property being tried to be transferred.
 Nevertheless, in the case of immovable property, the concern of the item’s value
fluctuating with the passage of time becomes relevant.
 As a result, rather than at the moment of election, this valuation will take place at the
time the instrument becomes operative.

Q14 Define mortgage and discuss various kinds of mortgages contemplated under
section 58 of TPA, 1882.

A14
 Mortgage is a kind of security given by the borrower(mortgagor) for the repayment of
the loan to the lender(mortgagee)
 According to section 58(a) of TPA mortgage is the transfer of an interest in specific
immovable property for the purpose of securing
- The payment of money advanced by way of loan
- An existing future debt
- Performance of an engagement which may give rise to pecuniary
liability
 The principal money and interest of which payment is secured for the time being are
called mortgage money.
 The instrument by which the transfer is affected is called mortgage deed.
 Unlike sale or gift a mortgage is not the transfer of absolute interest of the property.
 Elements of an interest –
 Transfer of an interest – In mortgage some rights are transferred to the
mortgagee and some remain vested with the mortgagor (depending upon the
type of mortgage). The right of ownership does not pass to the mortgagee, his
right is only an accessary right which is intended merely to secure the due
payment of the debt.
 Specific immovable property – In order to create a mortgage, it is essential to
specify the immovable property distinctly, otherwise it would be void for
vagueness.
 Consideration of mortgage – A mortgage must be supported by consideration,
which may be either money advanced by way of loan, or an existing or future
debt, or the performance of an engagement giving rise to pecuniary liability.
The object of mortgage is to secure debt. A transfer which is made by way of
discharging debt is not a mortgage.
 Kinds of mortgage –
 Simple mortgage – It is given under section 58(b) of TPA.
- In it the mortgagor binds himself personally to pay the mortgage
money, and gives an express or implied power to mortgagee to cause
the property to be sold through court’s intervention on the non-
payment of money
 - The possession of the property is not given to the mortgagee means
there is no transfer of ownership in a simple mortgage.
- Since mortgagee does not has the possession of the property, he has no
right to satisfy the debt out of the rent and profits nor can he acquire
the absolute ownership of the mortgaged property.
- The mortgagee acquire only the right of sale and that too only through
the court
- It was held in “Kisbansal v. Gangaram”
 Mortgage by conditional sale – It is given under section 58(c) in TPA.
- In this mortgage there is a condition that on the event of failure by the
debtor to repay the debt at the given time period, the transaction should
be regarded as a sale and in case the loan is repaid in the given time,
the sale shall be invalid.
- In this mortgagor ostensibly sells the property to mortgagee.
 Usufructuary Mortgage – It is given under section 58(d) of TPA.
- In this usufructuary means temporary right to use or derive income or
benefits from the property of another individual.
- In this mortgagor delivers the possession of property to mortgagee.
- There is retention of the possession by the mortgagee till the payment
of the mortgage money.
- There is no personal liability of the mortgagor
- Mortgagee cannot foreclose or sue for the sale of mortgage property
- There is no time limit fixed for the payment
- The mortgagor is entitled to redeem the property when the amount due
is personally paid or the debt is discharged by the rents and profits
received by the mortgagee remedies.
 English mortgage – It is given under section 58(e) of TPA.
- In this mortgagor binds himself to repay the mortgage money on a
certificate and transfers the mortgages property absolutely to the
mortgagee but, subject to the proviso that he will re transmit it to the
mortgagor upon the payment of the mortgage money as agreed.
- In this there is absolute transfer of property.
- It means delivery of possession of property to the mortgagee.
 Equitable Mortgage- It is given under section 58(f) of TPA.
 - In this mortgagor delivers the documents of his immovable property to
the mortgagee with an intention to create a security and obtain a loan.
- Need of mortgage deed is not mandatory.
 Anomalous mortgage – It is given under section 58(g) of TPA.
- It is a mortgage which is not of any kind of mortgage mentioned
above.
- It is the combination of various mortgage.

Q15 A mortgage his house to B subject to the condition that he would not redeem the
property for a period of 10 years. After 10 years, he could redeem the property only
within one year failing which he would lose the right to redeem the property forever.
However, if he redeems the property within given time, B would have a right to stay in
house as a tenant for a period of 25 years. Discuss the validity of these conditions in the
light of section 60 of TPA.

A15

 In the above case there are two conditions by B on A

 The conditions are First on the non-payment within one year only on the completion
of 10 years A would lose the right to redeem the property forever, 2nd is that on the
payment within one year only after completion of 10 years, B would have a right to
stay in house as a tenant for a period of 25 years.
 Both the conditions will be void as per the section 60 of TPA.
 The first condition will be void as per the case law “Murailal v. Deo Karan”
 It was held in this case that if the mortgage deed contained a stipulation that if the
mortgagor did not make the payment within the specified time period, then the
mortgagee would become the absolute owner of the property then According to the
court the mortgagor liability to repay the loan within specified time did not bar his
suit for redemption, because the stipulation amount’ed to a clog on the equity of
redemption.
 The second condition will be void as per the case “Ramlochan Singh v. Pradip Singh”
 It was held in the case that a condition that the mortgagee will get a right to enter the
possession as a tenant is void.
 The both conditions will be void because of section 60 of TPA
 Section 60 of TPA Talks about Right of Redemption
  At any time after the principal money has become due, the mortgagor has a
right, on the payment or tender, act a proper time and place, of the mortgage
money, to require the mortgage.
 In simple terms, after completion of period, a mortgagor has right to get the
property back after giving money to the mortgagee.
 For example – A took money from B for one month in exchange he mortgaged
his property. After one month A will give money with interest to B and A will
get back his property.
 According to this section –
- Mortgagee is required to deliver the mortgagor the mortgage deed and
all documents relating to the mortgaged property which are in his
possession.
- To deliver the property back to mortgagor where mortgagor is in
possession of the mortgaged property.
- It will be at the cost of mortgagor either to re transfer the property to
him or to such third person as he may direct or execute.
 Section 60 has three different provisions
- Right of redemption
- Clog on redemption
- Once a mortgage, always a mortgage
 There are three kinds of primary kind of redemption
- Delivery of the possession back to the mortgagor
- Delivery of the title documents and mortgage deed
- Return the property in favour of mortgagor.

Q16 Distinguish between mortgage and charge.

A16

 Mortgage is defined under section 58 of TPA whereas Charge is defined under section
100 of TPA.
 The term mortgage alludes to a form of charge, in which the ownership interest in a
particular immovable property is transferred. On the other hand, Charge is used to
 mean the creation of right over the assets in favour of the lender, for securing the
repayment of the of the loan.
 The mortgage is created out of the act of the parties concerned, whereas charge is
created either by the operation of law or by the act of the charger holder and charge
creator.
 A mortgage requires compulsory registration under the Transfer of Property Act,
1882. Conversely, when the charge is created as a result of the act of the parties
concerned, registration is must, but when the charge is created by operation of law, no
such registration is needed at all.
 The mortgage is for a specified term. Unlike charge, which continues forever.
 A mortgage carries personal liability, except when it is specifically excluded by an
express contract. As against this, no personal liability is created. Nevertheless, when
the charge comes into effect due to a contract, then personal liability may be created.

Q17 Distinguish between a lease and a licence and decide whether the following would
constitute a lease or license –

 A grant a right to use the roof of his house for putting an advertisement
hording. The use of roof could not be changed at the discretion of B, but
could be done after consultation with A, it was also provided that should
A or B die, the arrangement would continue and the right would be
inherited by B’s descendants.

A17

A
 Lease is given under section 105 of TPA, it means a transfer of right to enjoy
immovable property made for a certain time express or implied, or in
perpetuity, in consideration of a price paid or promised, or of money, a share
of crops, service or nay other things of value, to be rendered periodically or on
specified occasions to transferor by the transferee, who accept the transfer on
such terms.
 A licence is a right to do or continue to do, in or upon the immovable property
of the granter, something which would be in absence of such right is unlawful,
and such right does not amount to easement or interest in the property.
  Difference between lease and licence –
- A lease is a transfer of an interest in a specific immovable property,
while licence is a bare permission, without any transfer of interest.
- A lease created in favour of leassee with respect of the property but a
licence does not create such interest.
- A lease is both transferrable and heritable whereas a licence is nether
transferable nor heritable.
- A license comes to end with the death of either grantor or the
guarantee, since it is a personal contract, but a lease does not come to
an end on either the death of grantor or grantee.
- A licence can be withdrawn at any time at the pleasure of the grantor
but a lease can come to end only in accordance with the terms and
conditions stipulated in the contract.
- A lease is unaffected by the transfer of the property by sale in the
favour of third party. It continues and the purchaser ha s to wait till the
time period for which the tenancy was created is over before he can get
the possession whereas in the case of licence, if the property is sold to
the third party it comes to an end immediately.
- A lease has the right to protect the possession in his own right whereas
a licence cannot defend his possession in his own name as he does not
have any proprietary right in the property.
- A leasee in possession of the property is entitled to any improvements
or accessions made to the property while a licencee is not.

 In the above illustration the right to use the roof of the house is a licence.
 It is because the above right has many features of a licence.
 As the lease owner has the right to protect his property while licence owner does not,
in the above illustration B does not has the right to protect.
 In the above illustration A has merely give permission to use the roof and does not
transfer any interest.
 A lease owner can also sub lease the property but it will not be in the case of licence
and in the above illustration B cannot transfer it to someone else.
Q18 Explain the essential conditions relating to validity of a gift.

A18

 Gift is defined as “the transfer of an existing movable or immovable property

voluntarily by a person called as the ‘donor’ to a person called as ‘donee’ and
accepted by or on behalf of the donee without any consideration at the time when the
donor is alive and still capable of giving it.”

 It is given under section 122 of TPA

 The following essential elements of ‘gift’:

 The transfer of ownership- The owner of the property while transferring the

property to the donee must transfer all the rights in the said property.

- However, there can be conditional gifts provided that such conditions

are not repugnant to the provisions laid down under section 10- 34 of
the Act.

 Existence of property- The property which the donor intends to transfer by

way of gift must be in existence at the time of transfer.

- It can be either movable or immovable property.

- Section 124 of the TPA says that the transfer must be of property in
existence otherwise it will be void.

- The transfer of a future property by way of gift is void and in case of

both existing and future property, the gift transfer is void as far as the
future property is concerned.

- In case of a gift in relation to a joint family which fell to the donor by

preliminary decree of the partition of coparcenary property is held as
valid.

 The transfer must be without consideration and done voluntarily- The gift
must be given by the donor with his full knowledge and consent.
 - If obtained through coercion and undue influence as defined under
sections 15 and 16 of the Indian Contract Act, 1872, the gift will be
invalid.

- There are two tests laid down for the courts to ask in such situations;
whether one party is in a position of dominance over the other and
whether such a position has been used to dominate the will, i.e., has the
person used undue influence over the other person.

- In the case of Mukhraj Devi v. Manoj Kumar Singh strange event of

things happened when an illiterate woman had signed a gift- deed not
attested by any villagers or relatives as witnesses and was said to be
witnessed by a person outside the village. Here, the curt held the
transfer to be invalid.

 Donor must be a competent person- Donor is the person who intends to

transfer the property by way of gift. Thereby, he must be a ‘sui generis’.

- He must have attained the age of majority, of sound mind and must not
be disqualified in any way.

- Trustees cannot make any gifts of the property vested with them unless
authorized to do so as per the Laws of England.

 The transferee/ donee must accept the gift- Another pre-requisite for a valid
gift is that the transferee must accept the gift.

- If before acceptance of the gift the donee dies, the transfer becomes
void.

- Also, the acceptance must be made during the lifetime of the donor
when he is capable of making a gift. The donee has the right to accept
it expressly or impliedly.

- If he accepts the title- deed of the property gifted, it is an implied

acceptance.
 - Even though the transferor must be a major, the transferee can be a
minor and he can accept it by himself or by his guardians and the
minor on attaining the majority accept it or reject it.

 Delivery of possession- The property can be either movable or immovable. If

it is an immovable property, it is not necessary to show that the property has
been delivered.

- It is sufficient to showcase the acceptance by the donee.

- For effecting the gift of immovable property, section 123 says that it
must be affected by a registered instrument signed by or on behalf of
the donor in the presence of two witnesses and in case of movable
property, it can be either done by a registered instrument or by
delivery.