COURSE – III; PROPERTY LAW

Objectives:
The focus of this course in on the study of the concept of ‘Property’, the ‘nature of property rights’ and
the general principles governing the transfer of property. A detailed study of the substantive law
relating to particular transfers, such as sale, mortgage, lease, exchange, gift and actionable claims will
also be undertaken. The course also includes an exposure into the concept of trust.

Course contents:
UNIT – I
General principles of Transfer of property by Act of parties inter- vivos- Concept and meaning of
immovable property- Transferable Immovable Property- Persons Competent to transfer – Operation of
Transfer- Conditions restraining alienation and restrictions repugnant to the interest created-rule
against perpetuity and exceptions-Direction for accumulation-Vested and Contingent interest.

UNIT – II
Doctrine of election- transfer by ostensible and co-owner- Apportionment-Priority of rights- Rent paid
to holder under defective title- Improvements made by bonafide holder - Doctrine of Lis pendens-
Fraudulent transfer and part-performance.

UNIT – III
Mortgages of Immovable property: Definition- Kinds of mortgages and their features-Rights and
liabilities of mortgagor and mortgagee- Priority of securities-Marshalling and contribution- Charges.

UNIT – IV
Sale of immovable property: Rights and liabilities of seller and buyer before and after completion of
sale - Difference between sale and contract for sale; Leases of immovable property; Definition- Scope-
creation of lease- rights and liabilitie4s of lessor and lessee- Determination and holding over;
Exchange: Definition and mode Actionable Claims; Gifts: Scope- meaning- mode of transfer-
universal gifts- onerous gifts.

UNIT – V
Law of Trusts with Fiduciary Relations: Definitions of Trust and its comparison with other
relationships like Debt, Ownership, Bailment, Agency and Contract; Kinds of Trusts - Creation of
Trust- Appointment of Trustees- Duties and Liabilities of Trustees - Rights and Powers of Trustees-
Disabilities of Trustee- Rights and Liabilities of the Beneficiary - Vacating the office of trustee and
Extinction of Trusts.

Prescribed Books:
Mulla – Transfer of Property Act, 1882.
M.P.Tandon – Indian Trust Act.

Reference Books:
Subbarao – Transfer of Property
Shah - Principles of the Law of Property
Shukla – Transfer of Property Act.
Menon – Property Law
M.P.Tandon – Indian Trust Act.

By its very existence, society mandates interaction, exchange or transfer. A property, movable or
immovable, is transferred from one person to another under various different situations and
circumstances and for different values. The transfer may be a gift, an inheritance or an asset acquired
by paying full value.

When a movable property is transferred inter-vivos (between two living persons), Sales of Goods Act,
1930 comes into play. When an immovable property is transferred from dead person to living
person(s), the Transfer of Property Act, 1882 comes into play. In case, the property is transferred from
a dead person to a living person(s), the law applied will be the Law of succession. Should a person die
without leaving a will (intestate), the law of intestate succession is applicable and in cases where a
person dies leaving a will, the law of testamentary succession is applicable.

BACKGROUND

In India, the personal laws governed the transfer of property assisted by orders of Courts under Civil
Procedure Code before the Transfer of Property Act, 1882 came into existence. Transfer of movable
goods was regulated to an extent by the Indian Contract Act, 1872. For transfer of immovable
property, the Anglo-Indian courts often turned to principles of Justice, Equity and Good Conscience as
it prevailed in England at the time. This rarely did any good due to the vast differences in customs and
society of the two countries. Of course the rapidly growing commerce and infrastructure in the late
nineteenth century lead to more conflicts even in business. Thus, an immediate need was felt for a clear
and pragmatic law regarding property and transfers suited to India and its peculiar problems as well as
to take care of the potential economic problems. The task of drafting such legislation fell upon the First
Law Commission and was later referred to the Second Law Commission.

THE ACT

A Bill, finally presented to the Legislative Council, became a law on the 17 th of February 1882 and
came into force from 1st July of the same year. The Transfer of Property Act, 1882 mainly deals with
transfer of immovable property. It does not apply to transfers by the operation of law such as transfer
of immovable property necessitated by Order of Court for insolvency or forfeiture among others. The
137 sections contained within have been divided into 8 chapters.

Interestingly, nowhere does the Act define ‘What is a transfer of property’. But it does define ‘transfer’
as a standalone in Section 5.

OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’) was intended to
define and amend the existing laws and not to introduce any new principle. It applies only to voluntary
transfers. The following may be enumerated as the objectives of the Act:
a) As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law relating to
transfer of property by the acts of the parties.

b) The Act provides a clear, systematic and uniform law for the transfer of immovable property.

c) The Act completes the Code of Contract since it is an enacted law for transfers that take place in
furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the existing
laws of testamentary and intestate transfers.

e) The Act is not exhaustive and provides scope to apply the principles of Justice, Equity and Good
Conscience if a particular case is not governed by any provision of law.

SCOPE

Since the T P Act, 1882 is not a complete code of transfer of property; we can say its scope is limited.
The Act does not apply to all the transfers taking place in India.

a) Limitation on Transfer: The Act applies to transfer by the act of parties and not by application of
law. Thus, its operations are limited to transfers by act of parties only except in a few cases saved by
Section 2 of the Act.

b) Not Exhaustive: There are various kinds of property and various modes of transfer of property.
The Act does not incorporate rules for all modes of transfer in existence. The Act does not even claim
to be a complete code as apparent from omission of the term ‘consolidate’ from its Preamble.

c) Transfer of Immovable Property: The Act mainly deals with transfer of immovable properties
only.

d) Exemption of Muslim Law: In case of a conflict between the T P Act, 1882 and rules of Muslim
Law, the latter will prevail. Section 2 of the Act does not affect inconsistent rules of Muslim Law.
Thus, a settlement made in perpetuity for the benefit of descendants of the settler is a valid wakf
(charitable gift) wherein there is an ultimate gift in favor of a charity.

e) Exemption of Rights and Incidents: Certain incidents of a contract or the essential nature of
property are exemption from the operation of the Act by Section 2. The Act also saves certain property
rights. For example, the right to partition of immovable property is an incident of property but this
right is not affected by the provisions of the T P Act, 1882.

TERRITORIAL LIMITATION

A territorial law is a lex- loci or the law of a particular place and applies to all persons inhabiting the
territory irrespective of their personal status. It is different from personal law that generally follows the
person. The T P Act, 1882 is a territorial law and its operation extends to the whole of India except for
Punjab. It was not enforced throughout the country in one go. It was made applicable to different parts
of the country on different occasions. When the Act was first enforced (1 st July 1882), it extended to
the whole of ‘British India’ except Bombay, Burma and Punjab. The Act was extended to the
territories of Bombay from 1st January 1893. In Punjab, the transfer of immovable property by the act
of parties is governed by the rules of Justice, Equity and Good Conscience.

CHANGES MADE BY AMENDMENT ACT OF 1929

a) The ‘Doctrine of Part Performance’ has been statutorily recognized and embodied in Section
53A.

b) After amendments, the T P Act, 1882 is in conformity with provisions of Indian Registration Act.

c) The Act was amended to exclude government grants from its purview.

d) It provided that the procedural rules regarding mortgages were to be governed by Civil Procedure
Code.

e) Sections 60A, 63A, 65A and 67A were included and the stand on mortgages was made clearer. A
mortgagor now had the power to make leases while a mortgagee’s right to compensation for necessary
improvements was recognized.

OTHER CHANGES

Hindus and Buddhist had been formally excluded from the operation of the second Chapter of the Act
relating to transfer of property, whether movable or immovable. By the Amending Act, 1929, the
chapter has been made applicable to Hindus and Buddhists.

As decided in Radhakishan vs. Shridhar AIR 1960 SC 1368, the Muslim law of pre-emption does not
over-ride the provisions of the T P Act, 1882. The transfer of property where this Act applies has to be
under the T P Act, 1882 only and the Muslim Law of transfer of property can not over-ride the statute.

MISCELLANEOUS

Transfer of property is a ‘Concurrent Subject’ (Entry 6 of List III (Concurrent List) of Seventh
Schedule to Constitution). Both Central and State Government can take legislative action in respect of
transfer of property except that relating to agricultural land which is a state subject.

‘Transfer of Property’ means an act by which a living person conveys property, in present or future, to
one or more living persons, or to himself or to himself and one or more other living persons. The
property may be movable or immovable, present or future and the transfer can be made orally, unless
transfer in writing is specifically required under any law. Any person competent to contract and
entitled to transferable property, or authorized to dispose of transferable property on his own, can
transfer such property whether in part or whole, absolutely or conditionally.

The Act outlines transfers of property by act of parties like sales of immovable property, mortgages
and charges, leases of immovable property, exchanges, gifts and actionable claims.
INTRODUCTION

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.

MOVABLE PROPERTY IMMOVABLE PROPERTY

It can be transferred from one place to another. It cannot be transferred without causing
extensive damage to the property. The damage
relates to the nature of the
property

Registration is optional as per the Indian Registration Registration is compulsory under the Indian
Act, 1908. 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

The Sales and Central Sales taxes are applied, fee have to be paid.

DEFINITION OF IMMOVABLE PROPERTY

Immovable property is a species of property. Whenever we speak about immovable property, we

always use the ready reference of ‘attached to the earth’. Whether a thing is permanently attached to
the earth, whether it is capable of separation or not and what is the intention behind the construction or
promoted growth of the property are a few of the points that need to be looked into.

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.

This clause is explained with reference to the following three points:

a) Things rooted in the earth like trees, shrubs but not including standing timber, growing crops and
grass. Jamun trees are treated as immovable properties.

b) Things embedded in the earth like buildings, minerals etc. By ‘embedded’ we refer to things that
have their foundations laid well below the surface of the earth. An anchor of a ship is not immovable
property in its normal usage.

c) Things that have been permanently fastened to anything embedded in the earth for the purpose of
permanent enjoyment. For example, ceiling fans, doors and windows. If the objects that have been
attached are merely transitory or not permanent and do not contribute to the value and purpose of the
thing attached to, they are not immovable properties.

To determine whether a fixture is permanent or not, the following points need to be considered:
a) Mode of Annexation: Temporary, standing on its own weight or dug in to the earth, etc.
b) Purpose or Object of Annexation:

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.”

CONCLUSION OF VARIOUS DEFINITIONS OF IMMOVABLE PROPERTY

All the definitions read together can give us a clear idea what is included or excluded from being an
immovable property. They do not define immovable property per Se. A clear idea can be obtained by
creating a common definition by mixing these three.

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.

STANDING TIMBER, GROWING CROPS AND GRASS

Whether a tree is timber or not depends on the category of the tree and the common purpose of such
category. All the statutory definitions have excluded standing timber, growing crops and grass from the
purview of an immovable property. Here the intention is of great importance. If the transaction is the
immediate, the objects will be movable. But if the contract regarding such objects extends to many a
year or if the owner of the trees is interested in further vegetative growth, then they will be treated as
immovable property. The transfer of trees standing on land does not amount to the transfer of the land
also.

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.

WHAT IS INCLUDED IN IMMOVABLEWHAT IS NOT INCLUDED IN IMMOVABLE

PROPERTY PROPERTY
1) A right to collect rent from an immovable 1) A right to worship;
property;
2) A right to receive future rents and profits of land; 2) A copyright;
3) A tenancy right; 3) The interest of a partner in a partnership firm;
4) Coal mines; 4) A right to get maintenance;
5) A borewell that has been fastened in a permanent 5) A right to obtain the specific performance of
way to the earth; an agreement to sell;
6) Hereditary Offices; and 6) Government promissory notes; and
7) Right to use water of a perennial stream. 7) A machinery that is not permanently attached
to the earth and can be shifted from one Dlace to
another.

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.
Entry 6 of List III (Concurrent List) of Seventh Schedule to Constitution reads ‘Transfer of property
other than agricultural land; registration of deeds and documents’. Thus, transfer of property is a
‘Concurrent Subject’. Both Central and State Government can take legislative action in respect of
transfer of property except that relating to agricultural land. [Transfer of agricultural land is a State
subject under Entry 18 of List II (State List)]
The Act proposes to prescribe law relating to transfer of property by act of parties. Thus, the Act
applies only to voluntary transfer or property. It does not cover transfer of property by ‘will’.

Section 4 of the Act clarifies that the part of the Act which relates to contracts shall be taken as part of
Indian Contract Act and some specified sections shall be read as supplemental to Indian Registration
Act. Thus, the Act is complimentary to Indian Contract Act and Registration Act. The Act applies both
to movable and immovable property.

TRANSFER OF PROPERTY – ‘Transfer of Property’ means an act by which a living person conveys
property, in present or future, to one or more living persons, or to himself or to himself and one or
more other living persons. ‘Living person’ includes a company or association or body of individuals,
whether incorporated or not. [section 5]. - - The property may be movable or immovable, present or
future. - - Such transfer can be made orally, unless transfer in writing is specifically required under any
law. [section 9]. - - Any person competent to contract and entitled to transferable property, or
authorised to dispose of transferable property on his own, is competent to transfer such property. The
property can be transferred wholly or in part. It can be transferred either absolutely or conditionally.
Such transfer can be only to the extent and in manner allowed and prescribed by law. [section 7].

SALE OF IMMOVABLE PROPERTY – ‘Sale’ is a transfer of ownership in exchange for a price paid
or promised or part-paid and part promised. Such transfer in case of tangible immovable property of
value of Rs 100 or more can be made only by a registered instrument. Delivery of tangible immovable
property is made when seller places the buyer, or such person as he directs, in possession of property.
Thus, delivery of immovable property can be only by handing over actual possession to buyer or to a
person authorised by buyer. [section 54].

MORTGAGE – ‘Mortgage’ is the transfer of an interest in specific immovable property for the
purpose of securing payment of money advanced or to be advanced, by way of loan or an existing or
future debt. The transferor is called a mortgagor, the transferee a mortgagee, the principal money and
interest of which payment is secured are called as ‘mortgage money’ and the instrument by which
transfer is effected is called a mortgage-deed. [section 58(a)]. Mortgage can be * simple mortgage *
Mortgage by conditional sale * Usufructuary mortgage * English Mortgage * Mortgage by deposit of
title deeds or * Anomalous mortgage.

WHEN MORTGAGEE CAN TAKE POSSESSION OF MORTGAGED PROPERTY IN CASE OF

DEFAULT - Under provisions of section 69 of Transfer of Property Act, mortgagee can take
possession of mortgaged property and sale the same without intervention of Court only in case of
English mortgage, if there is default of payment of mortgage money. In addition, mortgagee can take
possession of mortgaged property where there is specific provision in mortgage deed and the
mortgaged property is situated in towns of Kolkata, Chennai or Mumbai. In other cases, possession of
property can be taken only with intervention of Court. [English Mortgage is where mortgagor binds
himself to repay the mortgaged money on a certain date, and transfers the mortgaged property
absolutely to the mortgagee, but subject to a proviso that he will re-transfer the property to the
mortgagor upon payment of the mortgage-money as agreed. - section 58(e) of Transfer of Property
Act].
CHARGE – Where immovable property of one person is, by act of parties or by operation of law,
made security for payment of money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and all provisions in respect of ‘simple
mortgage’ will apply to such charge. [section 100]. [Mortgage is not a ‘charge’ as per section 100 of
Transfer of Property Act, but it will be a ‘charge’ for purpose of registration under Companies Act, as
per section 124 of Companies Act].

A 'charge' is not 'mortgage'. In every mortgage, there is 'charge', but every charge is not a mortgage.
Section 100 of Transfer of Property Act states that if immovable property is made as security for
payment of money and if it does not amount to mortgage, then the later person is said to have a charge
on property. However, a 'charge' does not create an interest in the property. - Dattatreya Mote v. Anand
Datar - (1994) 2 SCC 799. Thus, no particular form is necessary to create 'charge'. [However, for
purpose of registration under Companies Act, ‘charge’ includes mortgage].

LEASE OF IMMOVABLE PROPERTY – A lease of immovable property is transfer of a right to

enjoy such property, made for a certain time, express or implied, or in perpetuity. Such transfer of right
should be in consideration of a price paid or promised, or of money, or a share of crops, or service or
anything of value, to be rendered periodically or on specified occasions to the transferor by the
transferee, who accepts the transfer on such terms. [section 105]. Lease of property from year to year
or for any term exceeding one year can be made only by registered instrument. [section 107].

EXCHANGE – When two persons mutually transfer the ownership of one thing for the ownership of
another, neither thing or both things being money only, the transaction is called an ‘exchange’. [section
118].

ACTIONABLE CLAIM – ‘Actionable claim’ means a claim to any debt or to any beneficial in
movable property not in possession (either actual or constructive) of the claimant. The debt should be
other than a debt secured by mortgage of immovable property or pledge of movable property. The
claim should be such be such as Civil Court would recognise as affording grounds for relief. Such debt
or beneficial interest be existent, accruing, conditional or contingent. [section 3 para 6]. Such transfer
of an actionable claim shall be effected only by execution of an instrument is writing. [section 130]. - -
One normal example is that receivable from a person is ‘actionable claim’, which can be transferred to
another (e.g. one bank may transfer some of its receivables to another).

Trust and trustees is a concurrent subject [Entry 10 of List III of Seventh Schedule to Constitution]. - -
Thus, the Act will apply all over India except when specifically amended / altered by any State
Government.

The Indian Trusts Act was passed in 1882 to define law relating to private trusts and trustees.

A trust is not a 'legal person'. Property of trust is held in name of trustee for benefit of beneficiary.

WHAT IS A TRUST - A trust is an obligation annexed to the ownership of property and arising out of
a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of
another, or of another and the owner. [section 3 para 1]. The person who reposes the confidence is
called 'author of trust' (testator), the person who accepts the confidence is called 'trustee' and the person
for whose benefit the confidence is accepted is 'beneficiary'. The subject matter of trust is called 'trust
property' or ‘trust-money. The ‘beneficial interest’ or ‘interest of the beneficiary’ is his right against
the trustee as the owner of trust-property. The instrument by which trust is declared is called as
‘instrument of trust’. [section 3 para 2].

Thus, when a property is held by one person as trustee for the benefit of another, it can be regarded as
a trust. Trusts are governed by Indian Trust Act, as may be modified by State Governments.

A trust can be created for any lawful purpose. [section 4]. A trust can be created by deed, will or even
word of mouth. However, trust of immovable property can be created only by non-testamentary
instrument signed by author of trust and is registered, or by will of author. [section 5]. Thus, ‘will’ is
not required to be registered, even if it pertains to immovable property.

DUTIES OF TRUSTEES - Trustee is not bound to accept the trust. [section 10]. However, once
accepted, he cannot renounce it except permission of civil court or beneficiary (if he is major) or by
virtue of special power in the instrument of trust. [section 46]. - Once trustee accepts trust, he is bound
to fulfil the purpose of trust and to obey directions given at the time of creation of the trust. It can be
modified with consent of beneficiary. [section 11]. His duties are –

* Inform himself of state of trust property (section12)

* Protect title to trust property (section 13)
* Not to set up title adverse to beneficiary (section 14)
* Take care of property as a man of ordinary prudence would deal with such property as own property
(section 15)
Conversion of perishable property to permanent and immediately profitable character (section 16) * To
be impartial (section 17)
* To prevent waste (section 18)
* Keep proper accounts and information (section 19) and
* Invest trust-money in prescribed securities and not others (section 20). - - Trustee is liable for breach
of trust. [section 23]. ‘Breach of trust’ means a breach of duty imposed on a trustee, as such, by any
law for the time being in force. [section 3 para 3].
RIGHTS AND POWERS OF TRUSTEE – Trustee has following powers –
* Rights to title deed (section 31)
* Right to reimbursement of expenses (section 32)
* Right to indemnify from gainer by breach of trust (section 33)
* Right to apply to court for opinion on management of trust property (section 34)
* Right to settlement of accounts (section 35)
* All acts necessary and reasonable and proper for trust property or protection of beneficiary (section
36).
* Power to covey property when he is authorised to sell (section 39)
* Power to vary investments (from one security to another (section 40)
* Power to apply property of minors for their maintenance (section 41)
* Power to give receipts (section 42)
* Power to compound or compromise (section 43).
RIGHTS AND LIABILITIES OF BENEFICIARY – The beneficiary has
* rights to rent and profits (section 55)
* Right to specific execution of intention of author of trust (section 56)
* Right to inspect and take copies of instrument of trust, accounts etc. (section 57)
* Right to transfer beneficial interest (section 58)
* Right to sue for execution of trust (section 59)
* Right to proper trustees (section 60)
* Right to compel trustee to perform an act of duty
* Follow trust property into hands of third persson and into which it has been converted (section 63). -
- A beneficiary is liable if he joins in breach of trust. [section 68].
REVOCATION OF TRUST - A trust created by will can be revoked at the pleasure of testator. A trust
created otherwise by will can be revoked
(a) by consent of all beneficiaries if they are competent to contract
(b) In exercise of power of revocation expressly reserved by author of trust, if the trust has been
declared by a non-testatory instrument or by word of mouth or (
c) At pleasure of author of trust, if the trust is for payment of debts and the author of trust has not
communicated to the creditors. [section 78].

By its very existence, society mandates interaction, exchange or transfer. A property, movable or
immovable, is transferred from one person to another under various different situations and
circumstances and for different values. The transfer may be a gift, an inheritance or an asset acquired
by paying full value.

When a movable property is transferred inter-vivos (between two living persons), Sales of Goods Act,
1930 comes into play. When an immovable property is transferred from dead person to living
person(s), the Transfer of Property Act, 1882 comes into play. In case, the property is transferred from
a dead person to a living person(s), the law applied will be the Law of succession. Should a person die
without leaving a will (intestate), the law of intestate succession is applicable and in cases where a
person dies leaving a will, the law of testamentary succession is applicable.

BACKGROUND

In India, the personal laws governed the transfer of property assisted by orders of Courts under Civil
Procedure Code before the Transfer of Property Act, 1882 came into existence. Transfer of movable
goods was regulated to an extent by the Indian Contract Act, 1872. For transfer of immovable
property, the Anglo-Indian courts often turned to principles of Justice, Equity and Good Conscience as
it prevailed in England at the time. This rarely did any good due to the vast differences in customs and
society of the two countries. Of course the rapidly growing commerce and infrastructure in the late
nineteenth century lead to more conflicts even in business. Thus, an immediate need was felt for a clear
and pragmatic law regarding property and transfers suited to India and its peculiar problems as well as
to take care of the potential economic problems. The task of drafting such legislation fell upon the First
Law Commission and was later referred to the Second Law Commission.

THE ACT
A Bill, finally presented to the Legislative Council, became a law on the 17 th of February 1882 and
came into force from 1st July of the same year. The Transfer of Property Act, 1882 mainly deals with
transfer of immovable property. It does not apply to transfers by the operation of law such as transfer
of immovable property necessitated by Order of Court for insolvency or forfeiture among others. The
137 sections contained within have been divided into 8 chapters.

Interestingly, nowhere does the Act define ‘What is a transfer of property’. But it does define ‘transfer’
as a standalone in Section 5.

OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’) was intended to
define and amend the existing laws and not to introduce any new principle. It applies only to voluntary
transfers. The following may be enumerated as the objectives of the Act:

a) As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law relating to
transfer of property by the acts of the parties.

b) The Act provides a clear, systematic and uniform law for the transfer of immovable property.

c) The Act completes the Code of Contract since it is an enacted law for transfers that take place in
furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the existing
laws of testamentary and intestate transfers.

e) The Act is not exhaustive and provides scope to apply the principles of Justice, Equity and Good
Conscience if a particular case is not governed by any provision of law.

SCOPE

Since the T P Act, 1882 is not a complete code of transfer of property; we can say its scope is limited.
The Act does not apply to all the transfers taking place in India.

a) Limitation on Transfer: The Act applies to transfer by the act of parties and not by application of
law. Thus, its operations are limited to transfers by act of parties only except in a few cases saved by
Section 2 of the Act.

b) Not Exhaustive: There are various kinds of property and various modes of transfer of property.
The Act does not incorporate rules for all modes of transfer in existence. The Act does not even claim
to be a complete code as apparent from omission of the term ‘consolidate’ from its Preamble.

c) Transfer of Immovable Property: The Act mainly deals with transfer of immovable properties
only.

d) Exemption of Muslim Law: In case of a conflict between the T P Act, 1882 and rules of Muslim
Law, the latter will prevail. Section 2 of the Act does not affect inconsistent rules of Muslim Law.
Thus, a settlement made in perpetuity for the benefit of descendants of the settler is a valid wakf
(charitable gift) wherein there is an ultimate gift in favor of a charity.

e) Exemption of Rights and Incidents: Certain incidents of a contract or the essential nature of
property are exemption from the operation of the Act by Section 2. The Act also saves certain property
rights. For example, the right to partition of immovable property is an incident of property but this
right is not affected by the provisions of the T P Act, 1882.

TERRITORIAL LIMITATION

A territorial law is a lex- loci or the law of a particular place and applies to all persons inhabiting the
territory irrespective of their personal status. It is different from personal law that generally follows the
person. The T P Act, 1882 is a territorial law and its operation extends to the whole of India except for
Punjab. It was not enforced throughout the country in one go. It was made applicable to different parts
of the country on different occasions. When the Act was first enforced (1 st July 1882), it extended to
the whole of ‘British India’ except Bombay, Burma and Punjab. The Act was extended to the
territories of Bombay from 1st January 1893. In Punjab, the transfer of immovable property by the act
of parties is governed by the rules of Justice, Equity and Good Conscience.

CHANGES MADE BY AMENDMENT ACT OF 1929

a) The ‘Doctrine of Part Performance’ has been statutorily recognized and embodied in Section
53A.

b) After amendments, the T P Act, 1882 is in conformity with provisions of Indian Registration Act.

c) The Act was amended to exclude government grants from its purview.

d) It provided that the procedural rules regarding mortgages were to be governed by Civil Procedure
Code.

e) Sections 60A, 63A, 65A and 67A were included and the stand on mortgages was made clearer. A
mortgagor now had the power to make leases while a mortgagee’s right to compensation for necessary
improvements was recognized.

OTHER CHANGES

Hindus and Buddhist had been formally excluded from the operation of the second Chapter of the Act
relating to transfer of property, whether movable or immovable. By the Amending Act, 1929, the
chapter has been made applicable to Hindus and Buddhists.

As decided in Radhakishan vs. Shridhar AIR 1960 SC 1368, the Muslim law of pre-emption does not
over-ride the provisions of the T P Act, 1882. The transfer of property where this Act applies has to be
under the T P Act, 1882 only and the Muslim Law of transfer of property can not over-ride the statute.

MORTGAGE-ELEMENTS-KINDS/CLASSIFICATION
Sections 58 to 99 of the Transfer of Property Act deals with mortgage of property. A mortgage is a transfer of an
interest in specific immovable property as security for the repayment of a debt.
Mortgagor, Mortgagee and Mortgage money
The person who transfers the interest in property is called the mortgagor. The person who receives it is named
the mortgagee. A mortgage money is the amount for which the propery is transferred as a security.
Characteristics of Mortgage
Given below are the general characteristics or elements of a mortgage.
a. Interest should be transferred
As the definition says, the interest of the property should be transferred to the mortgagee. In this way a legal
right is created. So if there is no transfer of interest over the property, there cannot be a mortgage.
b. Specific immovable propery
A mortgage is a transfer of interest in Specific immovable property. 'Specific' denotes 'clear'. The property must
be capable of identification by a description which has to be provided in the mortgage deed. This helps in
verifying the whole property and its value.
c. Transfer for securing a debt
A mortgage is a security for repayment of a debt. It creates a legal right and obligation. Thus it differs from a
personal undertaking where no interest is transferred. The purpose of mortgage is securing a debt and not
discharging a debt.
Different types of Mortgages
Mortgages are generally divided into six. They are:
1. Simple Mortgage
2. Mortgage by Conditional Sale
3. Usufructuary Mortgage
4. English Mortgage
5. Mortgage by deposit of title deeds
6. Anomalous Mortgage
Each one is noted below:
1. Simple Mortgage
In this type of mortgage there is personal obligation by the mortgagor to repay the mortgage money and he
impliedly or expressly declares that obligation. He also agrees that in the event of his failing to pay the money,
the mortgagee shall have the right to sell the mortgaged property to the satisfaction of the money given. In this
mortgage the possession of the property is not given to the mortgagee. The mortgagor gives the mortgagee a
power to sell the property through a suit in the Court.
2. Mortgage by Conditional Sale
In this type of mortgage, the property is sold to the mortgagee by a condition that the sale shall become void if
the debt is repaid and vice versa. If the mortgagor or the person who owes money repays it, the buyer shall re-
transfer the property.
Here it is to be noted that the mortgagee is not the real owner, but an unreal or ostensible owner of the property.
Therefore the mortgagee must get the sale absolute by an order of the court.
3. Usufructuary Mortgage
The terms 'Usufruct' denotes income from the property which includes rent. In this type of mortgage, the
possession of the property is transferred to the mortgagee. He is also authorised to receive the rents and profits
accruing from the property and appropriate it for the money given. He can retain the possession until the money
is repaid.
4. English Mortgage
In this Mortgage, the mortgagor agrees to pay the mortgage money on a certain date. Until this date, the
mortgaged property is absolutely transferred to the mortgagee. The conveyance of property is with a condition
that the mortgagee shal re-transfer the same upon the repayment of debt. Thus in this case the mortgagee gets
possession of the property.
5. Mortgage by Deposit of Title Deeds
According to Section 58(f) of the Transfer of Property Act,1882 of India where a person in any one of the towns
of Calcutta, Madras and Bombay and in any other town in which the State Government concerned specifies in
this behalf, delivers to a creditor or his agent, document or title to immovable property, with intent to create a
security thereon, the transaction is called a Mortgage by Deposit of Title Deeds. This is commonly called
Equitable Mortgage in English Law.
6. Anomalous Mortgage
This is a combination of simple and usufructuary mortgage and also a combination of usufructuary mortgage
and mortgage by conditional sale. A mortgage with possession of the property delivered to the mortgagee who
has the power to appropriate rents and profits for a specified term of years and then return it to the mortgagor
can be rightly called an anomalous mortgage.

Definition and concept of property

Property has a very wider meaning in its real sense. It not only includes money and other tangible things of
value, but also includes any intangible right considered as a source or element of income or wealth. The right
and interest which a man has in lands and chattels to the exclusion of others. It is the right to enjoy and to
dispose of certain things in the most absolute manner as he pleases, provided he makes no use of them
prohibited by law.

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has any
exclusive right in them. When things are fully our own, or when all others are excluded from meddling with
them, or from interfering about them, it is plain that no person besides the proprietor, who has this exclusive
right, can have any claim either to use them, or to hinder him from disposing of them as he pleases; so that
property, considered as an exclusive right to things, contains not only a right to use those things, but a right
to dispose of them, either by exchanging them for other things, or by giving them away to any other person,
without any consideration, or even throwing them away.

Basically Property is divided into real property, and personal property. Property is also divided, into absolute
and qualified, when it consists of goods and chattels.

Absolute property is that which is our own, without any qualification whatever; as when a man is the owner
of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal, which never had its
natural liberty in a wild state.

Qualified property consists in the right which men have over wild animals which they have reduced to their
own possession, and which are kept subject to their power; as a deer, a buffalo, and the like, which are his
own while he has possession of them, but as soon as his possession is lost, his property is gone, unless the
animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends such property as is
perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter consists in legal
rights, as chooses in action, easements, and the like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he also loses his
property or right in the thing: animals ferae naturae, as mentioned above, belong to the owner only while he
retains the possession of them. But, in general,' the loss of possession does not impair the right of property,
for the owner may recover it within a certain time allowed by law.

Meaning and Definition of Property

Meaning of property
In general sense, property is any physical or virtual entity that is owned by an individual or jointly by a group
of individuals. An owner of the property has the right. Human life is not possible without property. It has
economic, socio-political, sometimes religious and legal implications. It is the legal domain, which institutes
the idea of ownership. The basic postulate of the idea is the exclusive control of an individual over some
‘thing’. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on
which a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his property.
Property is any physical or intangible entity that is owned by a person or jointly by a group of people.
Depending on the nature of the property, an owner of property has the right to consume, sell, rent,
mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things. [1]

There are some Traditional principles related to property rights which includes include:
1. Control over the use of the property.
2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

Definition of property
There are different definitions are given in different act as per there uses and needs. But in the most
important act which exclusively talks about the property and rights related to property transfer of property
act 1882 has no definite definition of the term property. But it is defined in some other act as per their use
and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes
any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.

Theories behind concept of property:-

There are many theories which have been evolved for the purpose of understanding the concept of property
properly.

Those theories are as follows:

1. Historical Theory of Property:

2. Labour Theory (Spencer):

3. Psychological Theory (Bentham):

4. Functional Theory ( Jenks, Laski):

5. Philosophical Theories–
(i) Property as a means to Ethnical Ends

(ii) Property as an End in itself

Historical Theory of Property

According to the Historical theory, the concept of private property had grown out of collective group or joint
property. In the words of Henry Maine, “Private property was chiefly formed by the gradual disentanglement
of the separate rights of individual from the blended rights of the community.

Earlier property did not belong to individuals, not even to isolated families, but the larger societies composed
on patriarchal mode. Later with the disintegration of family- individual rights came into being.

Roscoe Pound also pointed out that the earliest form of property was group property. It was later on that
families were partitioned and individual property came into being.

Labour Theory (Spencer)

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the individual is a
foundation of property. This theory says that, a thing is the property of a person, who produces it or brings it
into existence. The main supporter of this theory is Spencer, who developed it on the principle of equal
freedom. He says that property is the result of individual labour. Therefore, no person has a moral right to
property which he has not acquired by his personal effort.

Psychological Theory (Bentham)

According to this theory, property came into existence on account of acquisitive instinct of man. Every
individual desires to own things and that brings into being property.

According to Bentham, Property is altogether a conception of mind. It is nothing more than an expectation to
derive certain advantages from the object according to one’s capacity.

Roscoe Pound also supports Bentham and observed that the sole basis of conception of property is the
acquisitive instinct of individual which motivates him to assert his claim over objects in his possession and
control.

Functional Theory ( Jenks, Laski)

The theory is sometimes also known as ‘sociological theory of property’. It implies that the concept of
property should not only be confined to private rights but it should be considered as a social institution
securing maximum interests of society. Property is situated in the society, has to be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment to others. He
said that the use of property should conform to the rules of reason and welfare of the community.

According to Laski, Property is a social fact like any other, and it is the character of social facts to alter.
Property has further assumed varied aspects and is capable to further change with the changing norms of
society.

Property is the creation of the State

The origin of property is to be traced back to the origin of law and the state. Jenks observed that property
and law were born together and would die together. It means that property came into existence when the
state framed laws. Property was nowhere before law.

According to Rousseau, “It was to convert possession into property and usurpation into a right that law and
state were founded”.

The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real society.

He insisted on the fact that property is nothing but a systematic expression of degrees and forms of control,
use and enjoyment of things by persons that are recognized and protected by law. Thus the property was the
creation of the state.

Philosophical Theories –
Property as a means to Ethnical Ends

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but always as a
means to some other end. According to Aristotle, it may be a means to the end of good life of the citizens,
further in the opinion of Hegel and Green, it may be a means to the fulfillment of the will without which
individuals are not full human. According to Rousseau, Jefferson, Friedman, it may be a means as a pre-
requisite of individual freedom seen as a human essence.

Similarly the outstanding critics of property like Winstanley, Marx have denounced it as destructive of human
essence, a negative means in relation an ontological end.

In all the above cases, property is taken as a means not as an end.

Property as an End in itself
The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an end. It is
maximization of utilities. According to Bentham, the command of utilities is measured by the material
wealth. The maximization of material wealth is indistinguishable from the ethical end; property is virtually an
end in itself. In the words of Locke, the unlimited accumulation is a natural right of the individual that is an
end in itself. Aristotle and Aquinas have considered, ‘’property as a means, concluded for a limited property
right. Hegel and Green, treats property, as a means, concluded for an unlimited right’. The supporters of
utilitarian tradition treat, accumulation of property, as an end, always meant a right of unlimited
accumulation.

Later the concept changed and the utilitarian Bentham held that the ultimate end to which all social
arrangements should be directed was the maximization of the aggregate utility (Pleasure minus pain) of the
members of the society. While listing out the kinds of pleasures, including non material one, he held that
wealth, the possession of material goods was so essential to the attainment of all other pleasures that it
could be taken as the measure of pleasure or utility as such.

Kinds of property
Broadly Property is divided into three kinds those are as follow:

Movable and Immovable property

Movable property
The definition of movable property is given differently in many acts. Some of the definitions are as follows:

Section 3 (36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and
property of every other description, except immovable property."

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every description, except land
and things attached to the earth or permanently fastened to anything, which is attached to the earth.

Things attached to the land may become moveable property by severance from the earth.for example Cart–
loaded of earth, or stones quarried and carried away from the land become movable property.

Immovable property
The Term "Immovable Property" occurs in various Central Acts. However none of those Acts conclusively
define this term. The most important act which deals with immovable property is the Transfer of Property
Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.

i. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing crops
or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute immovable
property and machinery, if embedded in the building for the beneficial use thereof, must be deemed to be a
part of the building and the land on which the building is situated.

ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land, benefits to
arise out of land and things attached to the earth, or permanently fastened to anything attached to the
earth". This definition of immovable property is also not exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries or
any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything
which is attached to the earth but not standing timber, growing crops nor grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which extends to the whole
of India, except the State of Jammu and Kashmir, is comprehensive. The above definition implies that
building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a
lease of land.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section
269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :

a. Any land or any building or part of a building, and includes, where any land or any building or part of a
building is to be transferred together with any machinery, plant, furniture, fittings or other things, such
machinery, plant, furniture, fittings and other things also.

Any rights in or with respect to any land or any building or part of building (whether or not including any
machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be
constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring
shares in, a co-operative society, or other association of persons or by way of any agreement or any
arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of such land,
building or part of a building.

Tangible and Intangible property:

Tangible property
Tangible property refers to any type of property that can generally be moved (i.e., it is not attached to real
property or land), touched or felt. These generally include items such as furniture, clothing, jewellery, art,
writings, or household goods.

Intangible property:
Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead
represents something of value such as negotiable instruments, securities, service (economics), and intangible
assets including chose in action

Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which
property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency, investments etc and
such assets are not the only kind that can be protected by law. There are many other forms of intangible
property known as intellectual property that have been recognized under the law and granted protection
against infringement

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets,
such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and
designs. Patents, trademarks and copyrights, designs are the four main categories of intellectual property.

Patents
Patents are used to protect new product, process, apparatus, and uses providing the invention is not obvious
in light of what has been done before, is not in the public domain, and has not been disclosed anywhere in
the world at the time of the application. The invention must have a practical purpose. Patents are registrable
nationally; the patent granted by European Patent Office is a “bundle” of national patents. No EU-wide single
patent system exists to date, although the Community Patent is in the final stages of enactment. Registration
provides a patentee the right to prevent anyone making, using, selling, or importing the invention for 20
years. Patents are enforced by court proceedings. In addition, the Regulation on Supplementary Protection
Certificates (SPCs), grants “patent extensions” of up to 5 years to pharmaceutical and plant products,
providing as much as 25 years of patent life for originator medicines.

Trade Marks
A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service with a
recognisable identity to distinguish it from competing products. Trademarks protect the distinctive
components which make up the marketing identity of a brand, including pharmaceuticals. They can be
registered nationally or internationally, enabling the use of the symbol ®. Trade mark rights are enforced by
court proceedings in which injunctions and/or damages are available. In counterfeiting cases, authorities
such as Customs, the police, or consumer protection can assist. An unregistered trade mark is followed by the
letters ™. This is enforced in court if a competitor uses the same or similar name to trade in the same or a
similar field.

Copyright
Copyright is used to protect original creative works, published editions, sound recordings, films and
broadcasts. It exists independently of the recording medium, so buying a copy does not confer the right to
copy. Limited copying (photocopying, scanning, downloading) without permission is possible, e.g. for
research. Publication of excerpts or quotes needs acknowledgement. An idea cannot be copyrighted, just the
expression of it. Nor does copyright exist for a title, slogan or phrase, although these may be registered as a
trade mark. Copyright applies to the Internet with web pages protected by many different copyrights, so that
permission should be asked to copy or print a page, or insert a hyperlink to it. Material cannot be posted on a
Web site (Intranet included) without permission from the copyright holder.

Copyright is not registrable because it arises automatically on creation. Copyright is protected in the EU for
70 years after the author’s death for creative works, 50 years for broadcasts, etc and 25 years for published
editions. Use of © is not required in most of Europe. Copyright is enforced by court proceedings.

Design Registration
Design registrations are used to protect products distinguished by their novel shape or pattern. They are
available for one-off items. The design itself must be new, although a 1 year grace period is allowed for test-
marketing. Registration is not possible where the new form is dictated by function. The design is registrable
either nationally or under an EU-wide single right. It can also be protected by copyright.

Conclusion
The existence of concept of property is from the ancient period. This concept has a very broad history. There
are many philosophies laid down by many thinkers like Bentham, Laski. These philosophies are very helpful in
understanding the concept of property. The main finding was that the term property is defined in different
ways in each act as to its use. As in Sale of Goods act 1930 it is defined differently than in Benami
Transactions (Prohibition) Act, 1988. In transfer of property act which is most important act which deals with
property does not have definition of the term property. There are many kinds of property as to it uses.

In today’s era, not only the things which can be seen or touched but also the things which cannot be touched
or seen come in the purview of property. Such as idea innovation, composition etc. These properties are
known as intellectual property.
A condition restraining alienation of property is void. In the like manner, a condition restraining enjoyment of
a transferred property is also void. This law is embodied in Section 11 of the Transfer of Property Act. As per
this section a condition restraining enjoyment
of property which has been transferred absolutely is void and the transferee is free to enjoy and dispose of the
income of the property in any manner he likes. The transferor cannot say that the property should only be used
in a certain way insisted by him.
The Exception
If the transferor is owning another part of immovable property also he can impose certain restrictions or
conditions to the transferee for the benefit of that property. The use of the transferred property should not cause
hindrance to the enjoyment of that particular property owned by the transferor.

The owner of an immovable property may mortgage his property to others for securing the repayment of the
loans advanced or to be advanced. Doctrine of Tacking is a special doctrine which arises in certain type of
transaction during the mortgage.
In this doctrine, the owner of an immovable property can mortgage his property to other for securing the different
advances made. Here the same property is mortgaged again and again.
For example A may mortgage his immovable property with B for a loan. He can mortgage the same property to
other people for loans from such persons. He can again mortgage the same property subsequently with B for a
fresh advancement of money. Here the rule of priority in case of realisation rests with B; but only for the first
advancement he made. He can claim the second advancement after the claims of other persons.
In the case of India the doctrine is dealt with under Section 79 of the Transfer of Property Act. As per the Indian
law, if a mortgage is created to secure future and present advances of money and the maximum is limited, a
subsequent mortgagee of the same property shall be postponed to the prior mortgagee in respect of all
advances not exceeding the maximum limit if the subsequent mortgagee knows about the prior mortgage.
For example if A creates a mortgage of his property to B for securing a future loan of fifty thousand rupees and
he borrows only half of the amount and thereafter A goes to C and mortgages the same property. Here C knows
about the prior mortgage. Later A goes and borrows the other half amount of money from B. Later at the time of
realisation C cannot say that B should only claim the first half and his other half can only be settled after the
advance made by C.

The word notice means to get knowledge. It means in law the knowledge of a fact. A person is said to have a
notice of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search
which he sought to have made, or gross negligence, he would have known it.
There are two kinds of notice viz express and constructive. Express notice is the actual notice. Here a person
acquires actual knowledge or information of a fact. Constructive notice is implied notice.
More on constructive notice
It is based on the law of presumption or it is presumed that in certain circumstances that the person knows the
fact. He cannot afterwards say against it. This type of notice can be divided into five.
1. Notice imputed by wilful abstention from enquiry
2. Notice from gross negligence
3. Notice by registration
4. Notice by possession
5. Notice by agent

Attestation is defined under Section 3 of the Transfer of Property Act. It is the act of witnessing the execution
of a document and subscribing the name of the witness in testimony of such fact. The object of attestation is to
avoid the element of fraud, misrepresentation or force in the execution of document.
Ingredients of Attestation
1.The attesting witnesses must be competent in law to attest.
2. There should be atleast two attesting witnesses.
3. The witness should be literate.
4. The attestor should sign in the presence of the executant.
5. The attestor has to sign after the execution of the document.
6. The attestor must actually witness the execution of the document.
7. The attesting witness should sign for the purpose of the transaction.

'Lis Pendens' generally means "pendency of a suit in a Court". It embodies the principle that the subject matter
of the suit should not be transferred to third party during the pendency of the suit. The transferee is bound by the
result of the suit in a case when such property is transferred during the pendency of the suit.
This doctrine aims at the final adjudication of the dispute. Nothing new should be brought in a litigation. It helps
to prevent multiplicity of suits.
The essential condition for the application of this doctrine is that the right to immovable property must be directly
and specifically in question in the suit. The doctrine is mainly based upon the principles of equity, justice and
good conscience. It is applicable to all cases between co-heirs. It applies to ex-parte judgements, compromise
decrees etc. It applies to both voluntary transfers and involuntary transfers. The doctrine is contained in Section
52 of the Transfer of Property Act.
The suit must be pending in a court of competent jurisdiction. So if the suit is filed in a court not of competent
jurisdiction, it is not a suit pending as per Section 52 of the Transfer of Property Act.

Marshalling refers in law to an arrangement. It is dealt within Section 81 of the Transfer of Property Act, India.
In this there will be one common debtor who has taken loan from more than one creditor.
Suppose A being the owner of two properties mortgages both of his properties viz 1 and 2 to X. Later A
mortgages 2nd property alone to Y. Here if X proceeds to realise the debt due to him by A by way of loan from
2nd property, Y can compel X to proceed first against 1st property and then if the debt is not satisfied, to the
2nd property.
Thus Section 81 of the Transfer of Property Act protects the subsequent mortgagees from prior mortgagees with
respect to property mortgaged to them.

Property of ‘any kind’ may be transferred– Critically examine with reference to

Transfer of Property Act

The Transfer of Property Act, 1882 (hereinafter, the Act) [1] is a civil legislation of immense
importance owing to the vast number of property related transactions taking place throughout
the country. A uniform legislation was the need of the hour considering this factor, and this
act was drafted to serve the selfsame purpose.

In the Transfer of Property [2] is defined as an act by which a living person conveys property,
in present or in future, to one or more other living persons, or to himself, and one or more
other living persons, and ‘to transfer property’ is to perform such act. 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.

It is important to note the meaning of the word property as applied in the act. Property has
been given a rather wide spectrum covering both tangible material things, e.g., land and
houses as well as rights which are not exercised over any material, e.g., a right to repayment
of a debt. The word ‘transfer’ in the Act has also been used in a wide sense. It may mean
either transfer of all the rights and interests in the property or transfer of one or more of
subordinate rights in the property. Thus, the expression ‘transfer of property’ may, therefore,
imply either transfer of things, transfer of one or more of the rights in a thing, or transfer of a
debt. [3]

From the above discussion, it is clear that, the expression transfer of property as defined in
section 5 is wide enough to cover any transaction which has the effect of conveying property
from one living person to another. Since conveying of the property involves the creation of
new title or interests in favour of the transferee. That is to say, if new title or interest has not
been created in favour of the transferee, the property is not conveyed, hence no transfer of
property. [4]

In this paper, the researcher seeks to differentiate between the types of property that may be
transferred from the non-transferable type. Also, in the opinion of the researcher, it is
essential to understand the connection that exists between the transfer of property on one
hand, and the S. 60 of the Civil Procedure Code, 1908 [5] (hereinafter, the Code) in this
regard. The focus of this paper would be on the provisions of the Act, with close reference to
the relevant section of the Code, in trying to understand the nature of property in general,
thereby trying to answer the specific question of whether or not all property is transferable.

Transferable Property and Attachment- a Critical Overview

Section 6 of the Act explains the nature of the property liable to be transferred under the said
provision. [6]

In general "property of any kind may be transferred'. There is however, a series of exceptions
to this, as enumerated under sub-sections (a) to (i), explained hereafter. It is interesting to
note the distinct similarity between these sections and those made by Section 60 of the Civil
Procedure Code as to the property which cannot be attached in the execution of a decree.
Although there is this similarity yet there is a difference between the exceptions made in this
section and exceptions made in Section 60. Certain things such as tools of artisans and
necessary cooking vessels can be transferred, yet they, under Section 60 of the Code cannot
be attached. [7] Apart from the exceptions made by the present section there are certain
restrictions imposed by other laws on the power of transfer. For e.g., restrictions in Hindu law
against the transfer of coparcenary property. [8]

Sub-section (a): Spes successions:

Spes successionis within the meaning of Section 6 of the Act: The things referred to in this
Sub-section as non-transferable are the chance of an heir succeeding to an estate, the
chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any
other mere possibility of a like nature.

Examples [9] :
Interest of reversioner (transfer is a nullity)

Chance of legacy (the bequest of legacy is a mere chance)

Mere possibility (no priest can assign his right to receive future offerings)

Easement in gross (i.e. an easement apart from dominant heritage)

Right of preemption (a personal privilege cannot be transferred except to owner of property)

Widow’s right to maintenance against husband’s property

Right to future maintenance fixed by agreement or decree

Mere right to sue.

Under Sec. 6 (a), however, transfer of a bare chance to get the property is prohibited. 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 is prohibited under Sec. 6 (a). It,
however, does not prohibit the transfer by the widow of her present interest in the properties
inherited by her together with the incidental right of survivorship. Such widows could validly
partition the properties and allot separate partitions to each and, incidental to such an
allocation, could agree to relinquish her right of survivorship in the portion allotted to the
other. [10]

Example. A expecting that C, his paternal aunt, who had no issues, would bequeath her
house worth Rs.20000, transfers it to B. The transfer is invalid. The above rule regarding
prohibition of the bare chance doctrine and spes successionis apply in this case.

Sub-section (b): Right of re-entry

By a mere right of re-entry is meant a right to resume possession of land which has been
given to another person for a certain time. This right of reentry is' usually inserted in leases
empowering the lessor to re-enter upon the demised premises if the rent is in arrear for a
certain period or if there is a breach of covenants in the lease. This Sub-section lies down
that the right of reentry cannot be transferred by itself apart from the land.

Example. A grants a lease of a plot of land to B with a condition that if B shall build upon it, he
would re-enter. A transfers to C his right of re-centering in case of breach of the covenant not
to build. The transfer is invalid for two reasons, one, the right is a personal licence and not
transferable, second, the transferee could only use it for the purposes of a suit to enforce the
right without acquiring any right in the property. But if A transfers the whole of his interest in
the property, i.e., ownership along with the right of re-entry to C, the transfer shall be valid
being a legal incident of the property.
Sub-section (c): Easement
An easement is a right to use, or restrict the use of land of another in some way. Examples of
easements are rights of way, rights of light and rights of water. An easement involves the
existence of a dominant heritage and a servient heritage. That is, there must be two parcels
of land, one (the dominant heritage) to which the benefit of the easement attaches, and
another (the servient heritage) which bears the burden of the easement. But technically an
easement cannot exist in gross (independently of the ownership of land but only as
appurtenant) attached to a dominant heritage. It follows therefore that an easement cannot
be transferred without the property which has the benefit of it.

Example. A, the owner of a house X, has a right of way over an adjoining plot of land
belonging to B. A transfers this right of way to C. The transfer is a transfer of easement and
therefore invalid. But if A transfers the house itself, the easement passes on to C on such
transfer.

Sub-section (d): Restricted interests

This clause states, a person cannot transfer an interest restricted in its enjoyment of him. A
transfer of such interest would defeat the object of the restriction. As an example, if a house
is lent to a man for his personal use, he cannot transfer his right of enjoyment to another.
Under this clause, the following kinds of interest have been held not to be transferable:—

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings
made at a temple is independent of an obligation to perform services involving qualifications
of a personal nature, the right is transferable.6

(c) A right of pre-emption.

(d) Service tenures.

Sub-section (dd): Maintenance

A right to future maintenance is solely for the personal benefit of the person to whom it is
granted and, therefore, cannot be transferred. Before the insertion of this Sub-section in
1929, there was a conflict of opinion whether the right to future maintenance when it was
fixed by a decree was transferable. It was held in Madras that it was, and in Calcutta that it
was not. The amendment supersedes the Madras decision. The result is that the assignment
of a decree for maintenance is valid if the maintenance has already become due but as to
future maintenance it is not valid. Arrears of maintenance, therefore, can be assigned.

Sub-section (e): Mere right to sue

A mere right to sue, as for instance, in respect of damages for breach of contract, or for tort,
cannot be transferred. The object of the prohibition is to prevent gambling in litigation.
Moreover, a right to sue is personal to the party aggrieved.

Example. A contracts to buy goods from B. On due date A fails to take delivery and B sells
the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to
C. The transfer is invalid.

Sub-section (f): Public office

According this section, a public office cannot be transferred. The prohibition is based on the
grounds of public policy. A public office is held for qualities personal to the incumbent, and
obviously it would be against public interest to permit alienations of public officer.

The salary of a public officer is not transferable, although, under Section 60, C.P.C, it is
attachable with certain limits. As stated by Page Wood, V. C. in Corporation of Liverpool v.
Wright:

"Where the law assigns fees to an office, it is for the purpose of

upholding the dignity and performing properly the duties of

that office, and the policy of the law will not allow the officer

to bargain away those fees to the appointer or anyone else."

If the office is not public, it would be transferable even though the discharge of its duties
should be indirectly beneficial to the public. [11]

Sub-section (g): Pensions

Under this clause, stipends allowed to military and civil pensioners of Government and
political pensions cannot be transferred. The term 'pension' means a periodical allowance or
stipend granted not in respect of any right of office but on account of past services of
particular merits or as compensation to dethroned princes, their families and dependants.
Accordingly, a reward is not a pension. Section 60 of the Civil Procedure Code also exempts
a pension from attachment in execution of a decree against the pension holder.

Sub-section (h): Nature of interest

This sub-section forbids transfer (1) in so far as such transfer would be opposed to the
interests affected thereby, (2) for unlawful object or consideration, and (3) to a person legally
disqualified to be a transferee.

Sub-section (i): Untransferable interests

The last sub-section of Section 6 is identical with the proviso in Sub-section (i) of Section 108
of this Act and was inserted by the Amendment Act, 1885 to obviate any doubt which might
arise owing to the fact that section does not primarily apply to leases for agricultural
purposes.

In general leaseholds are transferable but this sub-section makes an exception of this rule
and declares certain interest immutable. Thus, under this rule, a tenant having an
untransferable right of occupancy cannot alienate or assign his interests in the occupancy.
Similarly, a farmer of an estate, in respect of which default has been made in paying revenue,
cannot assign his interest in the holding. The same remarks apply to a lessee of an estate
under the management of a Court of Wards.

A Conclusion

The Civil Procedure Code and Transfer of Property Act embody what is referred to as the
backbone of civil law in India, and the notions in question, those of Transferable Property and
Attachment are key concepts with regards to the functioning of the civil litigations in the
country.

It is thus of crucial importance that these concepts are well understood by both lawyers and
the parties concerned. This paper has attempted to bring out such distinctions as were found
relevant for the present discussion, and the more important portions of such legislations have
been incorporated for the purpose of a meaningful analysis of the issues at hand. The
researcher is optimistic that the discussion ushered in this paper will go the distance in
clarifying the murky areas of these pivotal provisions and help elucidate the position taken by
the Hon’ble Court in this regard.

The researcher has tried to incorporate the difference in position in this regard between the
said provisions of the Code and the Act, illustrating how though the conceptual similarity is
apparent on the face of the matter, there is a great difference in terms of the meaning and
content of the two statutory provisions. Also, it has been concluded that though in general, ‘all
property may be transferred’, this is subject to the exceptions mentioned in Section 6(a) to (i)
of the Act. Thus, one may safely assume that, due regard being given to such exceptions,
expressly mentioned in the Act, transfer of all other categories of property is possible and this
Act is in furtherance of the selfsame objective of arriving at the desired level of uniformity in
terms of regulating property issues throughout the length and breadth of this diverse nation.

DOCTRINE OF PART PERFORMANCE

The Doctrine of Past Performance, based on principle of equity, developed in England and was
subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of 1929. In law of
contracts (for e.g., a contract for sale), no rights pass to another till the sale is complete But if a person
after entering into a contract performs his part or does any act in furtherance of the contract, he is
entitled to reimbursement or performance in case the other party drags its feet.
Section 53A says that if a person makes a agreement with another and lets the other person act on the
behalf of the contract; such a person creates an equity himself that can not be resisted on the mere
grounds of absence of formality in the evidence or contract of such a transfer. Thus, if the contract has
not been registered or completed in the prescribed manner, the transferor can still not go against the
transferee or anyone claiming under him. However, the deed should not be unsigned or unstamped.
Nothing in this section affects the rights of a transferee for consideration even if he had no notice of
contract of part performance.

Illustration: A contracts with B to sell his plot for X amount of money. A accepts the advance from B
towards the sale of the plot and hands over the possession of the said plot to B. After some time, B is
ready to pay the remaining sale amount but A refuses to accept the same. Further A asks B to hand
over the plot back to him.

Here B is ready to perform his part of the contract but A is not. In such a case, B can bring a case
requiring specific performance from A. It does not matter that the sale was not registered.

As per law, a transfer of immovable property valued over Rs. 100 has to be registered. But it was
believed that strict compliance may lead to extreme hardships especially where one party has already
performed his part in the confidence that the other party will honor the agreement. If such registration
or other formalities have not taken place, the doctrine of part performance will be applicable. If such a
transferee takes possession of the property, he can not be evicted due to an unregistered contract.

The section is a defense as well as a right that helps protect the possession against any challenge. It
tries to prevent fraud on the mere basis of ineffective evidence of the transfer. The section does not
confer a title upon the transferee in possession but it imposes a statutory bar on the transferor.

Equity looks to the intent rather than to the form

ESSENTIALS OF THE DOCTRINE OF PART PERFORMANCE

a) There must be a written contract for transfer of an immovable property signed by or on behalf of the
transferor. The doctrine can not be applied if there is a void agreement or no agreement.
b) There must be consideration;
c) The contracts should give out the terms of the transfer with reasonable certainty;
d) The transferee must have taken possession as a result of this contract or continued in possession if
he was already in possession of the property;
e) The transferee must have done some act in furtherance of the contract. Acts done prior to the
agreement or independent of it can not be deemed to be part performance of the contract; and
f) The transferee should have performed his part of the deal or be willing to perform it.

WALSH vs. LONGSDALE and MADDISON vs. ALDERSON are two of the major cases that have
helped develop the doctrine of part performance in England. In India, this doctrine has been enacted
with a few modifications.

MADDISON vs. ALDERSON 1888

B was A’s servant. A had promised B a certain property as life estate, meaning B could enjoy the
property during his life time. B served A for years upon this promised life estate. The will bequeathing
such interest and property to B failed due to want for proper attestation. After A died, one of his heirs
brought action to recover the property from B.
It was held that the act of part performance could not be proof of the contract since the performance
was a condition precedent to the contract. The heir of A was able to recover the said property.

WALSH vs. LONGSDALE 1882 21 Ch d 9

Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the mill. The agreement
was prepared but not signed. In the meantime, rent arrears started to accumulate as Walsh could not
keep up with the quarterly payments of rent. An advance of one year’s rent could be demanded by
Longsdale as per the contract. Lonsdale demanded the advance rent for one year and seized some
goods of Walsh when he defaulted. Walsh sued for damages.

The House of Lords decided in favor of Lonsdale stating that by running the mill, Walsh had admitted
he was a lessee and evidence of his consent to the unsigned lease deed.

The rule laid down in Walsh vs. Longsdale is not applicable in India – as it did not constitute the
doctrine of part performance.

Prior to the enactment of the Transfer of Property Act, 1882, the English law of Part Performance was
applied. Before Section 53A was inserted in the Transfer of Property Act, 1882, there were different
views upon such application. After the Transfer of Property Act, 1882 came into force, some thought
that Sections 54 and 59 which required registered documents were necessary for sale of immovable
property or regarding mortgage respectively. While others argued that requiring strict compliance
would be detrimental to the rights of the impoverished masses of India who could be duped by
scrupulous individuals taking advantage of the law.

The Privy Council in MOHD MUSA vs. AGHOR KUMAR GANGULI AIR 1914 PC 27 (30) held that
doctrine of part performance is applicable in India. There were divergent views a few years later
stating that doctrine can not be used to override statutory provisions. Finally in 1929, the Transfer of
Property Act was amended and the English law of part performance became a part of Indian Laws
though a little modified.

Equity on that as done as which ought to have been done.

Section 53A of the Transfer of Property Act, 1882

Part Performance – Where any person contracts to transfer for consideration any immoveable property
by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can
be ascertained with reasonable certainty, and the transferee has, in part performance of the contract,
taken possession of the property or any part thereof, or the transferee, being already in possession,
continues in possession in part performance of the contract and has done some Act in furtherance of
the contract, and the transferee has performed or is willing to perform his part of the contract, then,
notwithstanding that where there is an instrument of transfer, that the transfer has not been completed
in the manner prescribed therefore by the law for the time being in force, the transferor or any person
claiming under him shall be debarred from enforcing against the transferee and persons claiming under
him any right in respect of the property of which the transferee has taken or continued in possession,
other than a right expressly provided by the terms of the contract.

The proviso is an exception of sorts stating that the interests and rights of a subsequent transferee for
consideration will be protected as long as he had no notice of the contract leading to the part
performance due or the part performance thereof.

In India, the doctrine is used only as a shield and not to enforce rights as laid down by the Supreme
Court in Delhi Motors case. But it must be noted that the aggrieved party can either be the plaintiff or
the defendant in a suit as the case maybe.

ENGLISH AND INDIAN LAW

The English Law of Part Performance

1) The contract need not be written or signed by the transferor
2 The right under the doctrine is an equitable right
3) It can be used for enforcing the right as well as defending the right; and
4) It creates a title in the transferee.

The Indian Law of Part Performance

1) Section 53A deals with the Doctrine and state that the contract has to be written as well as signed by
the transferor
2) It is a statutory right;
3) It can only be used to defend the possession of the transferee; and
4) It does not create a title in the transferee.

After 2001 amendment to Section 53A, the application of the section has seen dilution – it no longer
serves as a ‘substitute’ for registration. It should still hold good for defects other than registration. But,
registration of sale of immovable property is compulsory and Section 53A has been amended to
incorporate the same.
Mortgage
Q. What do you understand by the term mortgage. what are different kinds of mortgage. (1998)
(2000)(2006)
Q. What is mortgage? explain various kinds of mortgage giving detail essential ingredients of each
kinds. (2002)(2003)
1. Introduction:
A mortgage is security for the payment of debt. mortgage is created by act of the parties by a written
document providing security for the performance of a duty or the payment of the debt.
2. Relevant provisions:
Sec. 58 transfer of property act.
3. Definition of mortgage:
"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the payment
of money advanced by way of loan, an existing or future debt, or the performance of an engagement which
may give rise to pecuniary liability.
Mortgagor:
The transferor is called mortgagor.
Mortgagee:
The transferee is called the mortgagee.
Mortgage money:
The principal money and interest of which payment is secured for the time being is called mortgage money.
Mortgage deed:
The instrument if any which the transfer is effected is called a mortgage deed.
4. Essentials of mortgage:
Following are essentials of mortgage.
(i) Transfer of an interest.
(ii) Specific property.
(iii) Security for payment of loan.
5. Kinds of mortgage:
Following are various kinds of mortgage.
(i) Simple mortgage:
Simple mortgage is a transaction in which without delivering possession of the mortgaged property, the
mortgagor binds himself personally to pay the mortgage money and agree expressly or impliedly that in the
event if this failing to pay according to the contract the mortgages shall have right to cause the mortgage
property to be sold the proceeds of sale to be applied in payment of mortgage money.
Essentials:
(i) Property is mortgaged.
(ii) Possession is not delivered.
(iii) A personal obligation to pay the debt.
(iv) Obligation may be express or implied.
(v) The transfer of a right to cause the mortgage property to be sold in default of the payment.
(ii) Mortgage by conditional sale
Where the mortgagor ostensible sells the mortgaged property on condition that on default of the payment of
the mortgage money on a certain bate the sale shall become absolute or on condition 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 sellor the transation is called a mortgage by conditional sale and the mortgagee, a
mortgagee by conditional sale.
Essentials:
(i) This mortgage is a form of sale.
(ii) The sale become absolute on the non-payment of mortgage money.
(iii) The sale may become void on the non-payment of mortgage money.
(iv) No delivery of possession is given.
(v) There is no personal liability on the part of the mortgagor to pay the debt.
(iv) The remedy of the mortgage is by foreclosure only.
(iii) Usufuctuary mortgage:
Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of
the mortgage property to the mortgagee and authorize him to retain such possession until payment of the
mortgage money, and to receive the rent and profits accruing from the property or any part of such rent and
profit and to appropriate the same in lieu of interest, or in payment of the mortgage money, or party in lieu of
interest or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and
the mortgagee an usufractuary mortgagee.
Essentials:
(i) No personal liability on the mortgagor.
(ii) Possession of property is delivered to the mortgagee.
(iii) No time period is fixed, to pay the mortgage money.
(iv) Mortgagee can not sale out the property.
(v) Mortgagee is entitled for rents and profits of the mortgage property.
(iv) English mortgage:
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transferred the
mortgage property, absolutely to the mortgagee, but subject to a proviso that he will re-transfer is to the
money as agreed, the transaction is called an English mortgage.
Essentials:
(i) Mortgagor binds himself to re-pay the mortgagee on a certain date.
(ii) The property is absolutely transferred to the mortgagee.
(iii) Transfer of property should be subject to the proviso that the mortgagee will recover the property to the
mortgagor on the payment.
(v) Mortgage by deposit of title deed:
Where the person specify in his behalf, delivers to a creditor or his agent documents of title to immoveable
property, with intent to great a security thereon, the transaction is called a mortgage by deposit of title deed.
Essential:
(i) Document of titled deed is deposit as security.
(ii) There is a debt.
(iii) On the payment of mortgage money, the title deed is returned to the mortgagor.
(vi) Anomalous mortgage:
A mortgage which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgages and
English mortgage by deposit of title deed is called anomalous mortgage.
6. Remedies for mortgagor:
Mortgagor has following remedies.
(i) Suit for sale.
(ii) Suit for money.
7. How conditional mortgage is determined:
The court generally apply certain tests to determine whether the transaction was sale with a condition or
repurchase or a mortgage by way of conditional sale.
(i) The existence of debt indicate a mortgage.
(ii) The long period of repayment indicate a mortgage.
(iii) A stipulation for interest on repayment indicated mortgage.
8. Conclusion:
To conclude I can say that a mortgage is the transfer of an interest in specific immovable property for securing
the payment of money advanced or to be advanced by law of money. the different kinds are simple,
conditional, usufructory, English by deposit of title deed and anomalous mortgage.

Right And Liabilities Of Mortgageor

Q. Discuss the right and liabilities of mortgagor. (2004)
1. Introduction:
A mortgage is an interest in land created by a written instrument providing security for the
performance of a duty or the payment of a debt. the rights and liabilities of mortgagor and
mortgagee are mentioned in the transfer of property act.
2. Relevant provisions:
Sec. 60 to 66 transfer of property act.
3. Definition of mortgage:
"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the
payment of money advanced by way of loan, an existing or future debt, or the performance of an
engagement which may give rise to pecuniary liability.
Mortgagor:
The transferor is called mortgagor.
Mortgagee:
The transferee is called the mortgagee.
Mortgage money:
The principal money and interest of which payment is secured for the time being is called mortgage
money.
Mortgage deed:
The instrument if any which the transfer is effected is called a mortgage deed.
4. Kinds of right and liabilities:
There are following two types of rights and liabilities of mortgagor as well as mortgagee.
(i) Statutory rights and liabilities:
The statutory rights and liabilities are provided in relevant sections of transfer of property act.
(ii) Contractual rights and liabilities:
Contractual rights and liabilities which the mortgagor and mortgagee stipulate in the contract.
5. Right of mortgagor:
Following are rights of mortgagor.
(i) Right to redeem:
Mortgagor has right to redeem the mortgage property.
(ii) Right of title deed:
When the whole debt is created the mortgagor has right to demand back all title deeds from
mortgagee on the redemption of the property.
(iii) Right to demand delivery of possession:
Or redemption the mortgagor may demand, the mortgagee, where he is in possession of the
mortgage property to deliver possession thereof to the mortgagor.
(iv) Right to compensation:
Mortgagor has right to compensation.
(v) Right that acknowledgement of extinguishments of rights be registered by the mortgagee:
The mortgagor, on payment or tendor of the mortgage, has right to require the mortgagee, at the
cost of the mortgagor, to have registered an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee has been extinguished.
(vi) Right to re-transfer the property:
Mortgagor has right to re-transfer the mortgage property.
(vii) Right of inspection and production of document:
A mortgager as long as his right to redemption subsists, is entitled at his own cost to inspect or make
copies of document of title relating to the mortgage property.
(viii) Right to redeem separately simultaneously:
A mortgager who has executed two or more mortgages in favour of the same mortgage shall in the
absence of a contract to contrary when the principal money of any two more of the mortgagee has
become due to entitled to redeem any one such mortgage separately or any two or more of such
mortgages together.
(ix) Right of usufructuary to rceover possession:
Mortgager has right recover the property in case of usufructuary mortgage together with the
mortgaged deed and all documents relating to the mortgage property which are in possession or
power of the mortgagee.
(x) Right of accession to the mortgage property:
Where the mortgage property in possession of the mortgagee has during the continuance of the
mortgage, received any accession, the mortgagor upon redemption shall be entitled to such
accession against the mortgagee.
(xi) Right of improvement:
Where mortgage property in possession of the mortgagee has during the continaance of mortgage
been improved the mortgagor upon redemption, shall be entitled to the improvement but will be
liable to pay the costs thereof.
(xii) Right to benefit of new lease:
Where the mortgage property is a deed and mortgagee obtains the renewal of the lease, the
mortgagor upon redemption shall have the benefit of new lease.
6. Liabilities of the mortgagor:
Following are the liabilities of the mortgagor.
(i) Liability to transfer valid interest:
The mortgagor is liable to transfer valid interest to the mortgagee in respect of the mortgage
property.
(ii) Liability to defend title:
The mortgagor is under liability to defend his own title if he is in possession of mortgage property and
if mortgagee is in possession he must enable him to defend his property.
(iii) Liability to pay public charges:
It is liability of the mortgagor to pay the public charges so long as the mortgagee is not in possession.
(iv) Liability to pay rents:
Where the mortgage property is a lease it is liability of mortgagor to pay the rent.
(v) Liability to pay interest and other encumbrances:
It is liability to pay interest on the prior mortgage and discharge of such encumbrances at the proper
time where the mortgagee is a subsequent of second mortgage.
7. Conclusion:
To conclude I can say that, the transferor is called the mortgagor. he has rights and under some
liabilities according to the transfer of property act.

Right And Liabilities Of Mortgageor

Q. Discuss the right and liabilities of mortgagor. (2004)
1. Introduction:
A mortgage is an interest in land created by a written instrument providing security for the
performance of a duty or the payment of a debt. the rights and liabilities of mortgagor and
mortgagee are mentioned in the transfer of property act.
2. Relevant provisions:
Sec. 60 to 66 transfer of property act.
3. Definition of mortgage:
"Mortgage is transfer of an interest in specific immoveable property for the purpose of securing the
payment of money advanced by way of loan, an existing or future debt, or the performance of an
engagement which may give rise to pecuniary liability.
Mortgagor:
The transferor is called mortgagor.
Mortgagee:
The transferee is called the mortgagee.
Mortgage money:
The principal money and interest of which payment is secured for the time being is called mortgage
money.
Mortgage deed:
The instrument if any which the transfer is effected is called a mortgage deed.
4. Kinds of right and liabilities:
There are following two types of rights and liabilities of mortgagor as well as mortgagee.
(i) Statutory rights and liabilities:
The statutory rights and liabilities are provided in relevant sections of transfer of property act.
(ii) Contractual rights and liabilities:
Contractual rights and liabilities which the mortgagor and mortgagee stipulate in the contract.
5. Right of mortgagor:
Following are rights of mortgagor.
(i) Right to redeem:
Mortgagor has right to redeem the mortgage property.
(ii) Right of title deed:
When the whole debt is created the mortgagor has right to demand back all title deeds from
mortgagee on the redemption of the property.
(iii) Right to demand delivery of possession:
Or redemption the mortgagor may demand, the mortgagee, where he is in possession of the
mortgage property to deliver possession thereof to the mortgagor.
(iv) Right to compensation:
Mortgagor has right to compensation.
(v) Right that acknowledgement of extinguishments of rights be registered by the mortgagee:
The mortgagor, on payment or tendor of the mortgage, has right to require the mortgagee, at the
cost of the mortgagor, to have registered an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee has been extinguished.
(vi) Right to re-transfer the property:
Mortgagor has right to re-transfer the mortgage property.
(vii) Right of inspection and production of document:
A mortgager as long as his right to redemption subsists, is entitled at his own cost to inspect or make
copies of document of title relating to the mortgage property.
(viii) Right to redeem separately simultaneously:
A mortgager who has executed two or more mortgages in favour of the same mortgage shall in the
absence of a contract to contrary when the principal money of any two more of the mortgagee has
become due to entitled to redeem any one such mortgage separately or any two or more of such
mortgages together.
(ix) Right of usufructuary to rceover possession:
Mortgager has right recover the property in case of usufructuary mortgage together with the
mortgaged deed and all documents relating to the mortgage property which are in possession or
power of the mortgagee.
(x) Right of accession to the mortgage property:
Where the mortgage property in possession of the mortgagee has during the continuance of the
mortgage, received any accession, the mortgagor upon redemption shall be entitled to such
accession against the mortgagee.
(xi) Right of improvement:
Where mortgage property in possession of the mortgagee has during the continaance of mortgage
been improved the mortgagor upon redemption, shall be entitled to the improvement but will be
liable to pay the costs thereof.
(xii) Right to benefit of new lease:
Where the mortgage property is a deed and mortgagee obtains the renewal of the lease, the
mortgagor upon redemption shall have the benefit of new lease.
6. Liabilities of the mortgagor:
Following are the liabilities of the mortgagor.
(i) Liability to transfer valid interest:
The mortgagor is liable to transfer valid interest to the mortgagee in respect of the mortgage
property.
(ii) Liability to defend title:
The mortgagor is under liability to defend his own title if he is in possession of mortgage property and
if mortgagee is in possession he must enable him to defend his property.
(iii) Liability to pay public charges:
It is liability of the mortgagor to pay the public charges so long as the mortgagee is not in possession.
(iv) Liability to pay rents:
Where the mortgage property is a lease it is liability of mortgagor to pay the rent.
(v) Liability to pay interest and other encumbrances:
It is liability to pay interest on the prior mortgage and discharge of such encumbrances at the proper
time where the mortgagee is a subsequent of second mortgage.
7. Conclusion:
To conclude I can say that, the transferor is called the mortgagor. he has rights and under some
liabilities according to the transfer of property act.
Right And Duties Of Parties Of Lease
Q. What is lease? discuss the rights and liabilities of lessor and lease. (2002)
1. Introduction:
A lease is a transfer of a right to enjoy the property of lessor is put in possession of the property. the
rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in
lease.
2. Relevant provisions:
Sec, 105, 107, 108 transfer of property act.
3. Determination of rights and liabilities of parties of lease:
The rights and liabilities of parties of lease determined by.
(i) Contract.
(ii) Local usage.
4. Duties of leassor:
(i) Duty to disclose material defect :
It is the duty of the lessor to leasee to disclose material defect which can cause any injury to any
person or property.
(ii) Duty to give possession:
The lessor is bound to give possession on the lessee is request otherwise he cannot enforce the
obligation of lease.
(iii) Duty to secure possession:
If lease is performing his part of contract than it is duty of lessor to secure possession so that leasee
can take the possession during any time of lease.
(iv) Duty to pay repair money:
It is the duty of the lessor to pay the money to lesee which was spent by lesee on the property.
(v) Duty to give other expenses:
If lesee has spent any other money for the maintenance of lease property then lessor is dduty bound
to give maintenance to the lesee.
(vi) Duty not to interrupt the enjoyment:
It is the duty of lessor that to interrupt the enjoyment of property.
5. Rights of lessor:
Following are the rights of lessor.
(i) Right of information of incerasing rent:
Lessor has right of information of any material change which could enhance the value of property of
lessor.
(ii) Right to receive rent:
Lesee is bound to give rent or premium at property time and place.
(iii) Right of restoration of property:
It is the duty of lesee to restore property in the same position during lease and on the termination
return it to lessor in the same form as was at the time of possession.
(iv) Right of information of assailing of title by stranger:
It is right of lessor to have information of assailing of title by stranger.
(v) Right to re-enter:
Lessor can re-enter into his property.
(vi) Right to eject tresspasser:
It is the right of lessor to eject the trepasser.
(vii) Right to terminate the lease:
It is the right of lessor to terminate the lease for this purpose he can issue notice to the lessee.
6. Duties of lessee:
Following are the duties of lessee.
(i) Duty to disclose the martial fact:
It is the duty of lesee to disclose material fact to lessor which could enhance the value of lease
property.
(ii) Duty to pay rent:
It is the duty of lesee to pay rent at proper time and place.
(iii) Duty to inform about assailing of title:
It is the duty of lessee that if a stranger asserts the title of lessor's property to inform the lessor.
(iv) Duty not to commit waste:
Lesee should not commit any waste in regard of lease property.
(v) Duty not to erect permanent structure:
It is the duty of lessor not to erect permanent structure except for the purpose of lease.
(vi) Duty to protect the property:
It is duty of lesee to protect the lease property and sue the property as man of ordinary prudence.
(vii) Duty to use lease property for same purpose:
It is duty of lesee to use lease property for the purpose for which it is lease out.
7. Rights of lesee:
Following are the rights of lesee.
(i) Right of accession:
He has right of accession whether natural or other. this right can be exercise during the period of
lease.
(ii) Right to avoid lease:
Where the lease property is unfit for lease the lesee can avoid the lease.
(iii) Right to charge for repair:
If lesee repairs the property he has a right to charge for the repairs.
(iv) Right to change for other payment:
Lesee has a right if he made any reasonable payment in respect of lease property he is entitled for
the payment.
(v) Right to transfer interest:
The lesee may transfer absolutely or by way of mortgage or sublease the whole or any part of his
interest in the property.
(vi) Right to take crops:
If in lease of uncertain duration the lesee or his legal heirs are entitled to all crops.
(vii) Right to take possession:
It is the right if lease is made, to take possession of such property.
(viii) Right to remove:
Lesee has right to remove whilst he is in possession of property leased out, the things which he had
attached to earth.
(ix) Right to terminate the lease:
Lesee has right to terminate the contract of lease. if the subject matter has been destroyed.
8. Conclusion:
To conclude I can say there is transfer of right of enjoyment in lease. the contract of lease creates
rights and liabilities on both parties i. e the lessor and lesee.
Essentials Of Lease
Q. Define lease? what are essentials of lease agreement. how does the lease of immoveable
property come to end. (2003)
1. Introduction:
A lease is a transfer of a right to enjoy the property of lessor is put in possession of the property. the
rights of ownership are not passed on the transferee. there is only transfer of right of enjoyment in
lease.
2. Relevant provisions:
Sec, 105, 108.
3. Definition of lease:
A lease of immovable property of right to enjoy such property, made for a certain time express or
implied, or in perpetuity, in consideration for a price paid or promised or of money a share of crops,
service or any other thing of value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms".
Transferor:
The transferor is the lessor.
Transferee:
The transferee is called lessee.
Price:
The price is called premium.
Rent:
The money, share or other thing to be so rendered is called the rent.
4. Essentials element of lease:
Following are essentials elements of lease.
(i) Immoveable property:
Lease must relate to immoveable property.
(ii) Fixed duration of enjoyment:
Such enjoyment of right of property must be for fixed duration.
(iii) Transfer of right:
There must be transfer of such right of enjoyment.
(iv) Consideration:
It must be for consideration.
(v) Acceptance:
The transfer must be accepted by the transferee.
5. Kinds of lease:
Following are kinds of lease.
(i) Lease for certain time.
(ii) A periodic lease.
(iii) Lease in perpetuity.
6. How the lease come to end:
Lease of immoveable property come to end in the following ways.
(i) Laps of time:
By efflux of the time limited thereby.
(ii) Happening of a specified event:
Where such time is limited conditionally on happening of some event lease of immoveable property
come to end.
(iii) Termination of the interest of lessor:
Where the interest of the lessor in property terminates on, or his power to dispose of the same
extends only to, on the happening of such event.
(iv) Merger:
In case of the interest of the lessore and lessor in the whole of the property become vested at the
same time in one person in the same right.
(v) Express surrender:
That is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual
agreement, between them.
(vi) Implied surrender:
Lease of immoveable property may come the end by implied surrender.
(vii) Forfeiture:
That is to say in the case the lessee breaks and express condition which provides that on breach
thereof the lessor may re-enter or in the case the lessee renounces his character as such by setting up
a title in a third person or by claiming title in himself or the lessee is adjudicated an insolvent and
lease provides that lessor may re-enter on the happening of transferee gives notice in writing to the
lessee of his intention to determine the lease.
(viii) Expiration of time given in notice of quit:
On the expiration of a notice to determine the lease, or quit or of intention to quit, the property
leased, duly given by one party to other.
7. Conclusion:
To conclude I can say that a lease is transfer of an interest of immoveable property. under transfer of
property act there are different modes which a lease in respect of immoveable property may be
determined.

Lease
Q. Define lease what are the right and liabilities of lessor. (1999)(2000)
Q. What is lease of immoveable property? describe the essentials of such leas.(1997)
Q. Define lease. how it is made? discuss in detail giving the rights and liabilities of the lessor and
the lessee? (1998)(2002)
Q. What is lease how it is made. (2007)
1. Introduction:
A lease is a transfer of a right to enjoy the property of lessor made of a certain time under which the
lease is put in possession of the property. the rights of ownership are not passed on the transferee.
there is only transfer of right of enjoyment in lease.
2. Relevant provisions:
Sec 105, 107, 108 transfer of property act.
3. Lease how made:
A lease of immoveable property from year to year or for any term exceeding one year, or resering a
year rent, can be made only by a registered instrument. all other lease of immoveable property may
be made either by a registered instrument by oral agreement accompanied by delivery of possession.
4. Definition of lease:
A lease of immovable property is transfer of right to enjoy such property, made for a certain time
express or implied, or in perpetuity, in consideration for a price paid or promised, or of money a
share of crops, service or any other thing of value, to be rendered periodically, or on specified
occasions to the transferor by the transferee, who accepts the transfer on such terms".
Transferor:
The transferor is the lessor.
Transferee:
The transferee is called lessee.
Price:
The price is called premium
Rent:
The money, share or other thing to be so rendered is called the rent.
5. Essentials element of lease:
Following are essentials elements of lease.
(i) Immoveable property:
Lease must relate to immoveable property.
(ii) Fixed duration of enjoyment:
Such enjoyment of right of property must be for fixed duration.
(iii) Transfer of right:
There must be transfer of such right of enjoyment.
(iv) Consideration:
It must be for consideration.
(v) Acceptance:
The transfer must be accepted by the transferee.
6. Creation of lease:
Lease may be created by contract by either:
(i) Express
(ii) Implied
(iii) Statue.
7. Lease how made:
Lease of immovable property is made in the following ways.
(i) Through registered deed.
(ii) Through transfer of possession.
(iii) Through execution of instrument.
8. Determination of rights and liabilities of parties of lease:
The rights and liabilities of parties of lease determined by.
(i) Contract.
(ii) Local usage.
9. Liabilties of lessor:
Following are the liabilities of lessor.
(i) Delivery of possession:
It is statutory obligation of the lessor to put the lessee in possession of the property leased out to
him.
(ii) Disclosure of material defect:
The lessor is bound to disclose to the lessee any material defect in the property.
(iii) Protect the rights of heirs:
Lessor is bound to protect the rights of lessor's heirs in case of his death.
(iv) No interruption:
Lessor is bound not to incorrupt in the possession of property of the lessee.
(v) Repair the leased property:
Lessor should repair the leased property on the demand of lessee.
10. Right of lessor:
Following are the rights of lessor.
(i) Consideration:
He is entitled for the consideration.
(ii) Right to take consideration in time:
He has right to take consideration in time from the lessee.
11. Liabilities of lessee:
Labilities of lessee are as under.
(i) Accession:
If during the continuance of the lease any accession is made to the property, such accession subject
to the law relating to allusion belongs to the owner of the joining land.
(ii) Destruction of property:
If by fire, tempest or flood or violence of any army or of more or other irresistible force any material
part of the property be wholly destroyed or rendered substantially and permanently unfit for the
purposes for which it was let the lessee shall at the option of lessee be avoid.
(iii) Repairs on property:
If the lessor neglects to make within a reasonable time after notice, any repairs which he is bound to
make, he make himself and deduct the expenses of repairs.
(iv) No Interruption:
Lessor is bound not to incorrupt in the possession of property of the lessee.
(v) Payment of rent:
The lessee must pay the rent of property to the lessor.
(vi) Reasonable care:
A lessee is bound to take reasonable care of the property entrusted to him.
(vii) Notice to any defect:
If the lessee becomes aware of any proceedings to recover the property or any encroachment made
upon or any interference with, the lessor's right concerning such property, he is bound to give, with
reasonable notice thereof of the lessor.
(viii) Use for real purpose:
Lessor must not use property or permit another to use the property for a purpose other than that for
which it was leased.
Unlawful purposes:
following may be unlawful purposes.
(i) Sell or pull down timber.
(ii) Damage to buildings.
(iii) Work mines or quarries.
(iv) Any other act which is destructive.
(ix) Permission of lessor:
Lessee must not without the lessor's consent erect on the property any permanent structure except
for agricultural purposes.
(x) Delivery of possession of leased property:
On the determination of lease, the lessee is bound to put the lessor into possession of property.
12. Rights of lessee:
The rights of lessee are as under.
(i) Termination of lease in case of destruction of property:
Lessee has right to terminate lease in case of any destruction of property.
(ii) Make essential repair and deduct expenses:
Lessee should make essential repair and he has right to deduct expenses from the rent of property.
(iii) Payment made on behalf of lessor:
Lessee may make the payment which the lessor is bound to make and deduct same from the rent.
(iv) Take things attached to earth:
Lessee may even after the determination of the leaser remove at any time whist he is in possession of
the property leased but not afterwards all things which he has attached to the earth, provided he
leaves the property in the state in which he received it.
(v) Transfer of property:
The lesee may transfer absolutely or by way of mortgage or sub-lease whole or any part of his
interest or party may transfer is again. the lesee shall not, by reason only if such transfer cease to be
subject to any of the liabilities attaching to the lease.
13. Conclusion:
To conclude I can say that, a lease is transfer of an interestof immoveable property. the rights and
liabilities of both parties in lease are subject to the change by mutual agreement or by local usage.

Sec 35 of Transfer Of Property Act 1882 incorporates the Doctrine Of Election. Election means
choosing between two inconsistent or alternative rights. Under any instrument if two rights are
conferred on a person in such a manner that one right is in lieu of the other, he is bound to elect
only one of them.
The Doctrine Of Election is based on Equitable Principle under which a person may not be allowed
to approve that part of an instrument which is beneficial to him and disapprove its that part which goes
against him. No one can approbate and reprobate at the same time which means where a person takes
some benefit under a deed or instrument, he must also bear its burden.

The Doctrine Of Election which is based on Equity is applied to every species of instrument whether
deed or will and to every kind of property movable or immovable.

Sec 35 of the Act makes following provisions in respect of the rule of election-

i) where a person profess to transfer a property not his own.

ii) in lieu of his transfer, the transferor confers certain benefits upon the owner of the property.

iii) the two things, i.e. transfer of property and conferring of the benefit forms part of the same
instrument.

Then, the owner of property is bound to elect either to take the benefit and transfer his property or to
retain his property and give up the benefit.

Transfer profess to transfer property not his own-

Sec 35 applies, where a person profess to transfer the property of another person. ‘profess’ means
purports or makes contract. Since such person is not the owner, he cannot transfer the property, but
can make arrangement for transfer of that property.

As an instance, A may profess to tansfer a property to B which is owned by C and also confer on C a
benefit of Rs. 1000. In this contract A is not transferring C’s property, he is simply professing to
tansfer a property which he does not own. Therefore A is not the transferor.

Benefit conferred on the owner of property-

The transferor must confer any benefit on the owner of property. The word ‘owner’ in this section has
a very wide meaning. It includes a person having vested interest as well as contingent interest and
also a person who has even reversionery or remote interest in the property. It is the owner of the
property who is put to election. Therefore, he must be given some ‘benefit’ in compensation for his
‘ownership’ of the property.

Part of the same transaction-

The rule of election operates only when the ‘transfer’ and the ‘benefit’ form part of the same
transaction. By same transaction is meant that the transfer of property is to be made evidently only in
lieu of the benefit. Thus where the ‘benefit’ and ‘transfer’ are interdependent and inseperable, they
form part of the same transaction.

Owner’s duty to elect-

If a property is professed to be transferred and in the same transaction some benefit is given to the
owner of property, then such owner is under a duty to elect. By his election he may either accept the
instrument with all its contents or reject it altogether. He has no option to accept only the beneficial
part of instrument. Where he elects to accept the instrument, he is entitled to get the benefit, but he is
bound to transfer his property. If he elects to reject the instrument he cannot claim benefit, but he may
retain his property.

Modes of election-

Election may be a) Express b) Implied.

<!--[if !supportLists]-->a) <!--[endif]-->Express- The owner may express his intention in clear and specific words. Where
election is express, it is final and conclusive.

<!--[if !supportLists]-->b) <!--[endif]-->Implied- Election is implied when the owner of property being aware of his duty to
elect and having full knowledge of the circumstances accepts the benefit. Such election would mean that he has chosen in
favour of the transaction.

Requisition to elect-

This is a special procedure for expediting election. After the expiry of one year, if owner of property
does not elect, i.e. neither confirms nor dissents from the tranfer, the tranferee may require him to
make such election. And if he does not elect, within a reasonable time after such requisition he is
deemed to have elected in favour of the transfer.

Suspension of election-

Where at the time of transfer, the elector is legally disabled, the election is postponed until such
disability ceases or until the election is made on behalf by a competent authority, e.g.- his guardian.
Legal disability may be minority or lunacy of the elector. Thus, his duty to elect is suspended during
his minority or lunacy unless the election is made by his legal guardian.

Election against transfer-

The owner of property whose duty is to make election has freedom to elect either for the transfer or
against it. Where he elects against it i.e. dissents from the professed transfer, he forfeits his claim to the
‘benefit’ conferred on him.

However, he can claim any other benefit which is given to him independently of the transfer under the
same instrument. As an instance, where a person is given two benefits x and y under an instrument but
only x has been given in lieu of property, then, if he elects against the transfer he forfeits only benefit
x. But he is entitled to claim benefit y.

The Transfer of Property Act, 1882 (hereinafter, the Act) [1] is a civil legislation of immense
importance owing to the vast number of property related transactions taking place throughout the
country. A uniform legislation was the need of the hour considering this factor, and this act was drafted
to serve the selfsame purpose.

In the Transfer of Property [2] is defined as an act by which a living person conveys property, in
present or in future, to one or more other living persons, or to himself, and one or more other living
persons, and ‘to transfer property’ is to perform such act. 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.

It is important to note the meaning of the word property as applied in the act. Property has been given a
rather wide spectrum covering both tangible material things, e.g., land and houses as well as rights
which are not exercised over any material, e.g., a right to repayment of a debt. The word ‘transfer’ in
the Act has also been used in a wide sense. It may mean either transfer of all the rights and interests in
the property or transfer of one or more of subordinate rights in the property. Thus, the expression
‘transfer of property’ may, therefore, imply either transfer of things, transfer of one or more of the
rights in a thing, or transfer of a debt. [3]

From the above discussion, it is clear that, the expression transfer of property as defined in section 5 is
wide enough to cover any transaction which has the effect of conveying property from one living
person to another. Since conveying of the property involves the creation of new title or interests in
favour of the transferee. That is to say, if new title or interest has not been created in favour of the
transferee, the property is not conveyed, hence no transfer of property. [4]

In this paper, the researcher seeks to differentiate between the types of property that may be transferred
from the non-transferable type. Also, in the opinion of the researcher, it is essential to understand the
connection that exists between the transfer of property on one hand, and the S. 60 of the Civil
Procedure Code, 1908 [5] (hereinafter, the Code) in this regard. The focus of this paper would be on
the provisions of the Act, with close reference to the relevant section of the Code, in trying to
understand the nature of property in general, thereby trying to answer the specific question of whether
or not all property is transferable.

Transferable Property and Attachment- a Critical Overview

Section 6 of the Act explains the nature of the property liable to be transferred under the said
provision. [6]

In general "property of any kind may be transferred'. There is however, a series of exceptions to this, as
enumerated under sub-sections (a) to (i), explained hereafter. It is interesting to note the distinct
similarity between these sections and those made by Section 60 of the Civil Procedure Code as to the
property which cannot be attached in the execution of a decree. Although there is this similarity yet
there is a difference between the exceptions made in this section and exceptions made in Section 60.
Certain things such as tools of artisans and necessary cooking vessels can be transferred, yet they,
under Section 60 of the Code cannot be attached. [7] Apart from the exceptions made by the present
section there are certain restrictions imposed by other laws on the power of transfer. For e.g.,
restrictions in Hindu law against the transfer of coparcenary property. [8]

Sub-section (a): Spes successions:

Spes successionis within the meaning of Section 6 of the Act: The things referred to in this Sub-section
as non-transferable are the chance of an heir succeeding to an estate, the chance of a relation obtaining
a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature.

Examples [9] :

Interest of reversioner (transfer is a nullity)

Chance of legacy (the bequest of legacy is a mere chance)

Mere possibility (no priest can assign his right to receive future offerings)

Easement in gross (i.e. an easement apart from dominant heritage)

Right of preemption (a personal privilege cannot be transferred except to owner of property)

Widow’s right to maintenance against husband’s property

Right to future maintenance fixed by agreement or decree

Mere right to sue.

Under Sec. 6 (a), however, transfer of a bare chance to get the property is prohibited. 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 is prohibited under Sec. 6 (a). It, however, does not prohibit the transfer by the widow of
her present interest in the properties inherited by her together with the incidental right of survivorship.
Such widows could validly partition the properties and allot separate partitions to each and, incidental
to such an allocation, could agree to relinquish her right of survivorship in the portion allotted to the
other. [10]

Example. A expecting that C, his paternal aunt, who had no issues, would bequeath her house worth
Rs.20000, transfers it to B. The transfer is invalid. The above rule regarding prohibition of the bare
chance doctrine and spes successionis apply in this case.

Sub-section (b): Right of re-entry

By a mere right of re-entry is meant a right to resume possession of land which has been given to
another person for a certain time. This right of reentry is' usually inserted in leases empowering the
lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a
breach of covenants in the lease. This Sub-section lies down that the right of reentry cannot be
transferred by itself apart from the land.

Example. A grants a lease of a plot of land to B with a condition that if B shall build upon it, he would
re-enter. A transfers to C his right of re-centering in case of breach of the covenant not to build. The
transfer is invalid for two reasons, one, the right is a personal licence and not transferable, second, the
transferee could only use it for the purposes of a suit to enforce the right without acquiring any right in
the property. But if A transfers the whole of his interest in the property, i.e., ownership along with the
right of re-entry to C, the transfer shall be valid being a legal incident of the property.

Sub-section (c): Easement

An easement is a right to use, or restrict the use of land of another in some way. Examples of
easements are rights of way, rights of light and rights of water. An easement involves the existence of a
dominant heritage and a servient heritage. That is, there must be two parcels of land, one (the dominant
heritage) to which the benefit of the easement attaches, and another (the servient heritage) which bears
the burden of the easement. But technically an easement cannot exist in gross (independently of the
ownership of land but only as appurtenant) attached to a dominant heritage. It follows therefore that an
easement cannot be transferred without the property which has the benefit of it.

Example. A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B.
A transfers this right of way to C. The transfer is a transfer of easement and therefore invalid. But if A
transfers the house itself, the easement passes on to C on such transfer.

Sub-section (d): Restricted interests

This clause states, a person cannot transfer an interest restricted in its enjoyment of him. A transfer of
such interest would defeat the object of the restriction. As an example, if a house is lent to a man for
his personal use, he cannot transfer his right of enjoyment to another. Under this clause, the following
kinds of interest have been held not to be transferable:—

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings made at a
temple is independent of an obligation to perform services involving qualifications of a personal
nature, the right is transferable.6

(c) A right of pre-emption.

(d) Service tenures.

Sub-section (dd): Maintenance

A right to future maintenance is solely for the personal benefit of the person to whom it is granted and,
therefore, cannot be transferred. Before the insertion of this Sub-section in 1929, there was a conflict
of opinion whether the right to future maintenance when it was fixed by a decree was transferable. It
was held in Madras that it was, and in Calcutta that it was not. The amendment supersedes the Madras
decision. The result is that the assignment of a decree for maintenance is valid if the maintenance has
already become due but as to future maintenance it is not valid. Arrears of maintenance, therefore, can
be assigned.

Sub-section (e): Mere right to sue

A mere right to sue, as for instance, in respect of damages for breach of contract, or for tort, cannot be
transferred. The object of the prohibition is to prevent gambling in litigation. Moreover, a right to sue
is personal to the party aggrieved.

Example. A contracts to buy goods from B. On due date A fails to take delivery and B sells the goods
in the market at a loss of Rs.10000. B transfers the right to recover the damages to C. The transfer is
invalid.

Sub-section (f): Public office

According this section, a public office cannot be transferred. The prohibition is based on the grounds
of public policy. A public office is held for qualities personal to the incumbent, and obviously it would
be against public interest to permit alienations of public officer.

The salary of a public officer is not transferable, although, under Section 60, C.P.C, it is attachable
with certain limits. As stated by Page Wood, V. C. in Corporation of Liverpool v. Wright:

"Where the law assigns fees to an office, it is for the purpose of

upholding the dignity and performing properly the duties of

that office, and the policy of the law will not allow the officer

to bargain away those fees to the appointer or anyone else."

If the office is not public, it would be transferable even though the discharge of its duties should be
indirectly beneficial to the public. [11]

Sub-section (g): Pensions

Under this clause, stipends allowed to military and civil pensioners of Government and political
pensions cannot be transferred. The term 'pension' means a periodical allowance or stipend granted not
in respect of any right of office but on account of past services of particular merits or as compensation
to dethroned princes, their families and dependants. Accordingly, a reward is not a pension. Section 60
of the Civil Procedure Code also exempts a pension from attachment in execution of a decree against
the pension holder.
Sub-section (h): Nature of interest
This sub-section forbids transfer (1) in so far as such transfer would be opposed to the interests
affected thereby, (2) for unlawful object or consideration, and (3) to a person legally disqualified to be
a transferee.

Sub-section (i): Untransferable interests

The last sub-section of Section 6 is identical with the proviso in Sub-section (i) of Section 108 of this
Act and was inserted by the Amendment Act, 1885 to obviate any doubt which might arise owing to
the fact that section does not primarily apply to leases for agricultural purposes.

In general leaseholds are transferable but this sub-section makes an exception of this rule and declares
certain interest immutable. Thus, under this rule, a tenant having an untransferable right of occupancy
cannot alienate or assign his interests in the occupancy. Similarly, a farmer of an estate, in respect of
which default has been made in paying revenue, cannot assign his interest in the holding. The same
remarks apply to a lessee of an estate under the management of a Court of Wards.