PART IV

a. Weekly Course Outline

Week Broad Particulars Essential Readings Suggested Readings
Topic
1 Introductio Meaning of Jeremy Waldron, What is WH Hohfeld, Some
n Private Property; Private Property?, 5 Fundamental Legal
(2 the different legal Oxford Journal of Legal Conceptions as Applied in
classes relations entailed Studies 313 (1985) Judicial Reasoning, 23(1) Yale
) LJ 16 (1913).

2 Types of Definition of S. 3 TPA, S. 3(26) Specific Relief Act – S. 5 and

(2 Property Movable and General Clauses Act and S. 6
classes Immovable the Registration Act.
) property. 1. Ananda Behera v. Commissioner Of Central
State of Orissa (1955) Excise, Ahmedabad v Solid
2 SCR 919 - And Correct Engineering
fish+profit e prndre, Works And Others, (2010) 5
not regitered SCC 122
2. Shantabai v State of
Bombay, AIR 1958
SC 532 standing
timber v timber tree,
tree 12 year
3. Suresh Chand v.
Kundan (2001) 10
SCC 221, sec3 +8-
root
4. Duncan Industries
Ltd. v State of Uttar
Pradesh, (2000) SCC
633- embedded
intention +transfer of
debt u/s 8
5. Triveni Engineering
& Industries Limited
v. Comm. of Central
Excise (2000) 7 SCC
29- attached to
something
permanently
embedded.
Marketability and
mobility.
3 Registratio Requirement of S. 17 and 18 of the Indian Indian Stamp Act to be referred
(1 n and Registration/Stam Registration Act to and the schedule to be
class) Stamp Duty p; Consequences Indian Stamp Act discussed briefly
Week Broad Particulars Essential Readings Suggested Readings
Topic
of Failure. 6. Suraj Lamps Pvt. Ltd. Gurcharan Singh v. Angrez
v State of Haryana, Kaur (2020) 10 SCC 250
2011 (11) SC 438.
GPA+SA+WILL-
stamp duty
3-4 Transfer What is Transfer? Ss. 2(d), 5, 6, 43, 8 and 9, Kenneth Solomon v. Dan Singh
What cannot be TPA. Bawa, AIR 1986 Del 1
Transferred? 7. V. N. Sarin v. Ajit Kr.
Operation of Poplai AIR 1966 SC
transfer? 432- partition is not
transfer

5-6 General Conditional Ss. 10, 11 and 40, 12; 25- Delhi Dayalbagh Co-Operation
Rules of Transfers, 34, TPA. House Building Society Ltd. v
Transfer Restraints on 8. Muhammad Raza v. Registrar Cooperative
Alienation and Abbas Bandi Bibi, Societies, (2019) 3 SCC 745
Enjoyment. (1932) I.A. 236
9. Zoroastrian Co- Hukmi Chand v Jaipur Ice and
operative Housing Oil Mills Company, AIR 1980
Society Ltd. V. RAJ 155
District Registrar, Co- Austerberry v. Corporation of
op. Societies (Urban) Oldham (1885) 29 Ch. D. 750
(2005) 5 SCC 632
10. K. Muniswamy v. K.
Venkataswamy, AIR
2001 Kant. 246
11. Tulk v. Moxhay
(1848) 2 Ch. 774
Vested and Ss. 13-24, TPA. Kokilambal and Others v N.
Contingent 12. Ma Yait v The Raman, (2005) 11 SCC 234
Interest, Transfer Official Assignee
to Unborn (1930) 32 BOMLR
Persons, Rule 125
against Perpetuity. 13. Rajes Kanta Roy v
Santi Debi AIR 1957
SC 255
7-8 Equitable Doctrine of Ss. 35(to be read with Patil, Yuvraj Dilip, Ostensible
Rules when Election 180-190 of Indian Ownership Vis a Vis Benami
rights Succession Act, 1925), 38, Transaction in India (December
conflict 39, 41-43, 48-51, TPA. 20, 2012). Available at SSRN:
http://ssrn.com/abstract=21919
51

Salient Features of the Benami

Transactions (Prohibition)
Amendment Act, 2016
Week Broad Particulars Essential Readings Suggested Readings
Topic
Transfer of Lis Pendens; Ss. 52 & 53 TPA. Would arbitration amount to lis
property Fraudulent 14. Abdul Shukoor v. Arji pendens?
under Transfer. Papa Rao AIR 1963
litigation, SC 1150 Nagubai Ammal v. B. Shama
Fraudulent 15. Guruswamy Nadar v. Rao, AIR 1956 SC 593
Transfer P. Lakshmi Ammal
(Dead) Through LRs.
& Ors., (2008) 5 SCC
796.
16. Jayaram Mudaliar v.
Ayyaswamy, AIR
1973 SC 569
17. Madhukar Nivrutti
Jagtap v. Smt
Pramilabai Chandulal
Parandekar Civil
Appeal 5382 of 2007
Part S. 53A, TPA
Performanc
e
9 (1 Sale, Meaning; Ss. 54 – 55; 118 -121; Sridhar & Anr v. N. Revanna
class) Exchange, Difference; Sale 122-126. & Ors Civil Appeal case 1209
Gift Deed v. 18. Vidyadhar v. of 2020 (Supreme Court).
Agreement to Sell; Manikrao, AIR 1999
Rights and SC 1441
Liabilities of 19. Subhas Chandra v
Buyer and Seller. Ganga Prasad, AIR
1967 SC 878

10 (2 Lease, Meaning of lease; Ss. 105 – 109. Kiran Wadhwa, Maharashtra

classes License Types of lease. Overview of rent control Rent Control Act 1999:
) Rights and duties legislations. Unfinished Agenda, EPW, Vol.
of Lessor and 20. Sivayogeswara Cotton 37.2002, 25, p. 2471-2476
Lessee. Press v. M.
Panchaksharappa, Model Tenancy Act, 2019
AIR 1962 SC 413
21. Dhanpal Chettiar v. Delhi Rent Control Act, 1958
Yesodai Ammal AIR (Sections – 2, 4, 5, 6, 14, 16,
1979 SC 1745 17)
22. Shanti Devi v. Amal
Kumar AIR 1981 SC Nand Ram v. Jagdish Prasad
1550 (2020) 9 SCC 393
23. Laxmidas Bapudas v.
Rudravva 2001 (2)
SCC 409
Differences S. 52 Indian Easement
Week Broad Particulars Essential Readings Suggested Readings
Topic
between a Lease Act.
and License 24. Associated Hotels of
India Ltd. v. R.N.
Kapoor (AIR 1959 SC
1262)
25. Bharat Petroleum
Corporation Ltd. v
Chembur Service
Station, 2011(4)
SCALE 209, ¶18-20.
11-12 Mortgage Introduction and Ss. 58-98 (S. 58-63A, 67, Shri Shivdev Singh v Sh.
(4 and Charge Meaning; Nature; 68, 69, 70, 72, 74-76, 78, Sucha Singh AIR 2000 SC
classes Essentials and 83, 85, 91, 92, 94-96) 100. 1935
) Types; Right of 26. Vidhyadhar v
Redemption and Manikrao AIR 1999 Sangar Gagu Dhula v. Shah
Clog on SC 1441 Laxmiben Tejshi, AIR 2001
Redemption; 27. Chaganlal v. Guj. 329
Subrogation; Anantaraman, AIR Ganpati Bapji Alamwar v.
Marshalling. 1961 Mad 415 Digambarroa Venkatrao
28. Ganga Dhar v. Bhadke Civil Appeal 3960 of
Shankar Lal, AIR 2011 (Supreme Court)
1958 SC 770
29. Pomal Kanji Govindji
v. Vrajlal Karsandas
Purohit, AIR 1989 SC
436: (1989) 1 SCC
458
13 Easements Definition, Indian Easements Act,
(2 creation and 1882 (Sections: 4-19, 21)
classes extinction of
) easements
Adverse Meaning and S. 27 and Articles 64 and State of Haryana vs Mukesh
Possession debates around the 65 of the Limitation Act, Kumar (2011) 10 SCC 404
concept 1963
30. Ravinder Kaur
Grewal v Manjit
Kaur, 2019 SCC
OnLine SC 975

14 Eminent Constitutional Articles 19(1) (f) and The Right to Fair

(1-2 Domain debates on the Article 31 of the Compensation and
classes right to property, Constitution before the Transparency in Land
) Land Acquisition 44th Amendment Act Acquisition, Rehabilitation
Laws 1978.
and Resettlement Act, 2013
LAAR- 2013 act
Week Broad Particulars Essential Readings Suggested Readings
Topic
Namita Wahi, Property, R.C. Cooper v. Union of India,
Oxford Handbook of the 1970 (2) SCC 298 (Bank
Indian Constitution Nationalization case)
(Oxford: Oxford
University Press, 2016), p. The Enemy Property Act, 1968,
943-966. read with The Enemy Property
(Amendment and Validation)
31. State of Bihar v. Bill, 2016, and its interface
Kameshwar Singh with Article 14 of the
(1952) 1 SCR 889- Constitution of India
difficulty in acquiring
land. DPSP not
enforceable.
Inserted amendments.
Govt changed
compensation too amount.
- RV Kapoor
32. State of West Bengal
v. Bela Banerjee- AIR
1954 SC 170
33. Vajravelu Mudaliar v.
Special Deputy
Collector- AIR 1965
SC 1017
34. KT Plantation v. State
of Karnataka, (2011)
9 SCC 1

15 (1 Revision
class)

b. Readings

SL. WEEK READINGS

NO NO
1. WEEK 1 Jeremy Waldron, What is Private Property? 5 Oxford Journal of Legal
Studies 313 (1985).
Stephen R Munzer, A Theory of Property, Cambridge University Press,
1990.

2. WEEK 2 Burke Shartel, Meanings of Possession, 1932 16 (6) Minnesota Law

 Review 611-637; TRANSFER OF PROPERTY ACT, 1882.
3. WEEK 3 REGISTRATION ACT, 1908 AND INDIAN STAMP ACT, 1899.
4. WEEK 4 Robyn Honey, Renovating the Concept of Consent in Property and
Contract, in New Directions for Law in Australia (ed) ANU Press,
2017.
5. WEEK 5 Carl Emery, Do We Need a Rule Against Perpetuities? 1994 57 (4)
The Modern Law Review 602-610.
6. WEEK 6 Carl Wellman, Concept of Fetal Rights, 2002 21 (1) Law and
Philosophy 65-93.
7. WEEK 7 Andrew Burrows, We do this in Common Law But That in Equity,
2002, 22 (1), Oxford Journal of Legal Studies, 1-16.
8. WEEK 8 Francis L Kenney Jr. Lis Pendens as Remedy of Surety, 1974 9 (5),
The Forum, 739- 746.
9. WEEK 9 George Lefcoe, Property Condition Disclosure Forms: How the Real
Estate Industry Eased the Transition from Caveat Emptor to “Seller
Tell All”, 2004 39 (2), Real Property, Probate and Trust Journal, 193-
250.
10. WEEK 10 TRANSFER OF PROPERTY ACT, INDIAN EASEMENT ACT,
1882
11. WEEK 11 Steven W. Bender, Equity in Times of Mortgage Crisis, 2014, 48 (3)
Trust and Estate Law Journal, 543-610.
12. WEEK 12 Andra Ghent, How do case law and statute differ? Lessons from the
Evolution of Mortgage Law, 2014, 57 (4) Journal of Law and
Economics, 1085-1122.
13. WEEK 13 Henry w Ballantine, Title by Adverse Possession, 1918, 32 (2)
Harvard Law Review, 135-159.
14. WEEK 14 William B Stoebuck. A General Theory of Eminent Domain, 1972,
47(4) Washington Law Review, 553-608.
15. WEEK 15 Shyamkrishna Balganesh, Codifying the Common law of Property in
India: Crystallization and Standardization as strategies of constraint,
2015, 63 (1) The American Journal of Comparative Law, 33-76.

3/5 short notes-4m each

2/4 Short hypothetical/ short analythical-8m Each
2/3 2 long hypo, 1 long analytical- 11m each
Covered under TPA- Sale, lease, mortgage, Exchange, gift, actionable claim.
Unborn children are not living.
Child in mother’s womb is living.

Absolute interest- bundle of rights- possession, enjoyment, selling, mortgaging or making

gift.

Reversion1 and remainder2 right

Condition precedent should be substantially complied with.

Condition subsequent should be strictly complied with.

Section 41- Ostensible owner- seeming or stated to be real or true.

The transferee is not aware and in good faith.
Here the owner has consent express or implied of the real owner.

S41 v s43 v doctrine of election

Registration compulsory when property value more than 100.

¾ attempt
1 mandatory hypo-10m
2/3 theory, analysis, hypothetical-7.5 m each

1
Residue of original interest which is left after the grantor has granted the lease
2
When the owner grants limited favour in
 Module XIV
Eminent domain

Coined by Hugo Grotius in 1625 and was defined in the following manner:
“The property of subject is under the eminent domain of the state, so that the State or he who
acts for it may use and even alienate and destroy such property, not only in cases of extreme
necessity... but for ends of public utility, to which ends those who found civil society must
be supposed to have intended that private ends should give way. But it is to be added that
when this is done the state is bound to make good the loss to those who lose their property.”

Eminent Domain: Inherent power of the State to acquire property upon meeting certain
conditions –
- Public Purpose
-Compensation
• The process must be subject to a legal method that can withstand judicial review.
• Executive action cannot interfere with the rights of a citizen unless backed by an existing
statutory provision.

Eminent Domain v Police Powers

• The police power of the state (in contrast to eminent domain power) allows the state to
“take” without compensation.
• Police power - restrictions are imposed on private property in the public interest.
• E.g., in connection with health, sanitation, zoning regulation etc.

Holdout Problem: Illustration

• Waldron, a resident of India, wants to start a cooperative society to facilitate dairy farming
in Sonepat, Haryana. His business venture would potentially provide job opportunities to
25,000 Indians and it would do a lot in terms of economic development. He goes to the
government and submits his business proposal and requests assistance with acquisition of
100 acres of land. The said 100 acre of land is jointly owned by 10 people. 9/10 Agree to sell,
but the 10th person refuses. Without the land of Mr. Munzer, the project will be dead before
it can begin.

Constituent Assembly Debates: Competing Interests

• Opposing views/aims proposed by Constituent Assembly
• Tussle between zamindars/property holders and socialists.
• Zamindars - adequate protection or at least just and fair compensation for the price of their
lands
• Political thinkers - influenced by socialism - land be redistributed equitably.
Article 31 provides the balance. Zamindars get compensation and socialists get lawful
property in return.

Article 19 (1) (f) – right to acquire, hold and dispose of property, subject to reasonable
restrictions.
• Art.31 (as originally enacted)
(1) No person shall be deprived of his property saved by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company
owning, any commercial or industrial undertaking, shall be taken possession of or acquired
for public purposes under any law authorizing the taking of such possession or such
acquisition, unless the law provides for compensation for the property taken possession of
or acquired and either fixes the amount of the compensation, or specifies the principles on
which, and the way, the compensation is to be determined and given.
(3) No such law as is referred to in clause (2), made by the legislature of a State shall have
effect, unless such law, having been reserved for the consideration of the President,
receives his assent.
(4) If any Bill pending at the commencement of this Constitution in the Legislature of a
State has, after it has been passed by such Legislature, been reserved for the consideration of
the President and received his assent, then, notwithstanding anything in this Constitution, the
law so assented to shall not be called into question in any court on the ground that it
contravenes the provisions of clause (2).
(5) Nothing in clause (2) shall affect
• a. The provisions of any existing law other than a law to which the provisions of clause (6)
apply
b. The provisions of any law which the State will hereafter make
i. To imposing or levying any tax or penalty, or
ii. For the promotion of public health or the prevention of danger to life or property, or
iii. In pursuance of any agreement entered between the Government of the Dominion of
India or the Government of India or the Government of India and that of any other country,
or otherwise, with respect to property declared by law as evacuee property.
(6) Any law of the State enacted not more than 18 months before the commencement of the
Constitution may within 3 months of such commencement be submitted to the President for
his certification; and thereupon, if the President by public notification so certifies, it shall not
be called in question in any court on the ground that it contravenes the provision of clause (2)
of this article or that it has contravened the provisions of clause (2) of section 299 of the
Government of India Act, 1935

Article 19(1)(f)- all Indians had a right to property, subject to reasonable restrictions.
Article 31- no one could be deprived of their property except by law; the law must set
compensation or principles on which such compensation is paid.
Article 31 codified what is often described in political and legal parlance as the
‘Eminent domain’ power of the state.
This power inherent in the exercise of a state’s sovereignty allows the state to compulsorily
acquire property belonging to private persons for a public purpose upon payment of
compensation.
The twin requirements of PUBLIC PURPOSE AND COMPENSATION are based on the
rationale that no individual should have to disproportionately bear the burden of
supporting the public good.
 1. State Of Bihar Vs Kameshwar Singh
Issue: Whether the three State enactments, The Bihar Land Reforms Act, 1950, The Madhya
Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands Act, 1950), and
The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, are constitutionally
valid.

Facts:

The three State enactments aim to abolish zamindaries and other proprietary estates and
tenures in the three States and bring the raiyats and other occupants of lands in those areas
into direct relation with the Government.
The Bihar Act was declared unconstitutional and void on the grounds that it
contravened Article 14 of the Constitution, while the other two Acts were adjudged
constitutional and valid.
The Acts were challenged in the respective State High Courts on various grounds.
The Acts fall within the ambit of both Article 31(4) and Articles 31-A and 31-B, which
protect them from attack in any court on the ground that they contravene the provisions of
Article 31(2).
The obligation to pay compensation for the compulsory acquisition of property is raised
to the status of a fundamental right under the Constitution.
The Acts provide for the acquisition of property without fulfilling the two conditions as
to public purpose and payment of compensation.

Decision:
The Bihar Act is not unconstitutional, except for the provisions contained in Section 4(b)
and 23(f) of the Act, which must be held to be void and inoperative.
The Madhya Pradesh Act was declared unconstitutional and void on the grounds of its
infringement of fundamental rights under Article 14 of the Constitution.
The Acts cannot be called in question on the ground of legislative incompetence of the State
Legislatures to enact them under Entry 36 in List 2 or Entry 42 in List 3.
The obligation to pay compensation is inseparable from and is implicit in the power of
acquisition.
Articles 31(4), 31-A, and 31-B expressly seek to prevent a challenge to the validity of the Act
based on the ground that it does not provide for compensation.
The Acts are protected from attack in any court on the grounds that they contravene the
provisions of Article 31(2).

2. State Of West Bengal v. Bela Banerjee and Others

Procedural History: This is an appeal from a judgment of the High Court of Judicature at
Calcutta declaring certain provisions of the West Bengal Land Development and Planning
Act, 1948, (hereinafter referred to as the impugned Act?) unconstitutional and void.
Facts: The impugned Act was passed on 1-10-1948, primarily for the settlement of
immigrants who had migrated into the Province of West Bengal due to communal
disturbances in East Bengal, and it provides for the acquisition and development of land for
public purposes including the purpose aforesaid.
Issue: Whether the provisions of the impugned Act, making the declaration of the
Government conclusive as to the public nature of the purpose of the acquisition and the
limitation of the amount of compensation so as not to exceed the market value of the land on
31-12-1946, were ultra vires the Constitution and void?
How should the word compensation be interpreted?
Decision: The learned Judges below observe that it is common knowledge that since the end
of the war, land, particularly around Calcutta, has increased enormously in value and might
still further increase very considerably in value when the pace of industrialization increases.
Any principle for determining compensation which denies the owner this increment in
value cannot result in the ascertainment of the true equivalent of the land appropriated.
The latter part of proviso (b) to section 8 of the impugned act which fixes the market value on
31-12-1946, as the maximum compensation for lands acquired under it offends against the
provisions of Article 31(2) and is unconstitutional and void. The appeal is dismissed with
costs.
Land was taken for resettlement of refugees following the partition. Held that this was
also for public purpose and that full compensation must be paid based on market value
and just equivalent of what owner has lost. For the first time, adequacy of compensation
was considered and looked into. Post the Bela case, 4th amendment added words “no
such law shall be called in question in any court on grounds that compensation provided
by law is not adequate”.

3. Vajravelu Mudaliar v. Special Deputy Collector- AIR 1965 SC 1017

Facts
Land Acquisition (Madras Amendment) Act, 1961
Compensation – Avg market value in last five years or on the day of the notification,
whichever is lower.
Difference between compensation received by people whose land was used for hospitals and
those whose lands were used for accommodation.

Issues
Whether the amending Act offends Articles 14 and 19 of the Constitution?
Whether the amending Act is bad because it does not provide for payment of compensation
within the meaning of Article 31(2) of the Constitution?
Whether the Constitution (Seventeenth Amendment) Act, 1964 precludes the petitioners from
questioning the validity of the amending Act on the ground that it infringed Articles 14, 19 or
31 of the Constitution?
Whether the amending Act was made in contravention of Article 31(2) of the Constitution?
Whether the amending Act is hit by Article 14 of the Constitution?
Decision
The amending Act clearly infringes Article 14 of the Constitution and is void. The Court
directed the issue of writs of mandamus restraining the respondents from proceeding with the
acquisition under the provisions of the amending Act. This order will not preclude the
respondents from continuing the proceedings under the provisions of the Land Acquisition
Act, 1894, in accordance with law.

Reasoning
The amending Act offends Articles 14 and 19 of the Constitution. The amending Act is also
bad because it does not provide for payment of compensation within the meaning of Article
31(2) of the Constitution. The Constitution (Seventeenth Amendment) Act, 1964 does not
preclude the petitioners from questioning the validity of the amending Act on the ground that
it infringed Articles 14, 19 or 31 of the Constitution. The amending Act was made in
contravention of Article 31(2) of the Constitution. The amending Act is hit by Article 14 of
the Constitution because it empowers the State to acquire land for housing schemes at a
price lower than that the State has to pay if the same was acquired under the principal
Act. The Court held that the amending Act clearly infringes Article 14 of the
Constitution and is void.
• Decision wrt Art 31(2) issue
“In awarding compensation if the potential value of the land is excluded, it cannot be said
that the compensation awarded is the just equivalent of what the owner has been deprived of.
But such an exclusion only pertains to the method of ascertaining the compensation. One of
the elements the should properly be taken into account in fixing the compensation is omitted:
it results in the inadequacy of the compensation, but that in itself does not constitute
fraud on power, as we have explained earlier. We, therefore, hold that the Amending Act
does not offend Art. 31(2) of the Constitution.”
Article 14-
• Difference between compensation received by people whose land was used for
hospitals and those whose lands were used for accommodation.
• Test under Art 14:
- Intelligible Differentia
- Reasonable Nexus with Object
Ratio:
• “…we cannot discover any differences in the people owning lands or in the lands on
the basis of the object. The object is to acquire lands for housing schemes at a low
price. For achieving that object, any land falling in any of the said categories can be
acquired under the Amending Act. So too, for a public purpose any such land can be
acquired under the Principal Act.”
• “… We, therefore, hold that the Amending Act clearly infringes Art. 14 of the
Constitution and is void.”

4. K.T Plantation Private Limited And Another v. State Of

Background
Smt Devika Rani Roerich, grandniece of Rabindranath Tagore, was known as the “First Lady
of the Indian Screen” for her contributions to the Indian Motion Pictures and Film Industry.
An enquiry was ordered under Section 83 of the Land Reforms Act for violation of its
provisions. The Roerichs were granted exemption under Section 107(1)(vi) of the Act for
cultivation of linaloe, subject to the limitations of Section 110. The State Government issued
a Notification dated 8-3-1994 under Section 110, which was challenged for its validity. Mary
Joyce Poonacha and others also challenged the constitutional validity of the Acquisition Act.

Issues
Part I: Validity of Section 110 of the Land Reforms Act and the Notification dated 8-3-1994
Part II: Constitutional validity of the Acquisition Act
Part III: Claim for enhanced compensation and the scope of Article 300-A of the Constitution

Ruling
The Court rejected the contention that Section 110 of the Land Reforms Act was void due to
excessive delegation of legislative powers on the State Government. The Notification dated
8-3-1994 was held to be valid despite non-compliance with the laying clause. The
Acquisition Act was not challenged on the ground of repugnancy or absence of Presidential
assent and was held to be valid. Article 300-A protects private property against executive
action, but the right to claim compensation cannot be read into List III Entry 42. The rule of
law is a fundamental postulate of the constitutional structure and limits the sovereignty of
Parliament and provincial legislatures. The Court dismissed all appeals and directed the
notified authority under the Acquisition Act to disburse compensation to legitimate claimants
and ensure that the acquired land is used only for the purpose for which it was acquired.

Reasoning
Section 110 of the Land Reforms Act empowers the State Government to withdraw
exemption granted to certain lands subject to the provisions of Section 107. The Court held
that this did not amount to excessive delegation of legislative powers. The Notification dated
8-3-1994 was held to be valid despite non-compliance with the laying clause as it did not
affect its validity or effect. The Acquisition Act was not challenged on the ground of
repugnancy or absence of Presidential assent and was held to be valid. Article 300-A protects
private property against executive action, but the right to claim compensation cannot be read
into List III Entry 42. The rule of law is a fundamental postulate of the constitutional
structure and limits the sovereignty of Parliament and provincial legislatures. The Court
dismissed all appeals and directed the notified authority under the Acquisition Act to disburse
compensation to legitimate claimants and ensure that the acquired land is used only for the
purpose for which it was acquired.

Problems with the Land Acquisition Act of 1894

• Monetary compensation only
• No commitment/obligation to rehabilitate and resettle people
• Absence of requirement of consent
• Powers of Collector:
• Disregard for the consent of people involved / lack of creating a participative framework
• No inclusive decision making- govt decides everything
• No provisions for vulnerable groups

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013
• Objective: to transform the process of land acquisition into a “humane, participative,
informed and transparent” process.
• Land may be acquired for:
• Public purpose: includes strategic purposes, infrastructure development (incl. industrial
corridors, mining, manufacturing zones), housing, planned development, education,
transportation, tourism
• Public-private partnership projects
• Private companies for public purposes.

Changes by the New Act

• Consent: May be required from a certain percentage of affected parties (depending upon the
nature of the project)
• Affected persons: inter alia owners, tenants, persons whose primary source of livelihood
stands affected by acquisition and were working for three years in the affected area, forest
dwellers.
• Compensation: hiked up to four times market value (rural) and twice the market value
(urban areas)
• Possession: to be taken after payment of compensation and rehabilitation and resettlement.

Social Impact Assessment

• Social Impact Assessment: Upon there being an intention to acquire a SIA is to be
conducted in consultation with the Panchayat/Municipality / Municipal Corporation.
What does the SIA study entail?
• consultation with local panchayat/ municipality.
• public hearing
• publication of study
• appraisal by expert committee (whether for public purpose, costs outweigh benefits).
• Urgency Clause

Procedure for Acquisition

• Preliminary Notification
• Updating Records & Survey
• Objections after Preliminary Notifications
• Preparation of Rehabilitation & Resettlement Scheme
• Second Public Hearing
• Declaration for Acquisition and Summary of R&R Report
• Award
• Resettlement & Rehabilitation Award
• Possession

Problems- Land acquired without consent and resettlement and adequate compensation.
 Module IX

Sale, exchange, gift

Ss. 54 – 55; 118 -121; 122-126.

Nature, Scope & Ambit of Section 54.

Sale Defined— sale is a transfer of ownership in exchange for a price paid or promised or
part promised. Sale how made— Such transfer, in case of a tangible immoveable property
of the value of 100 rupees and upwards, or in the case of a reversion or other intangible thing,
can be made only by a registered instrument. In the case of tangible immovable property of
a value less than one hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property.3 Delivery of intangible property takes place when
the seller places the buyer, or such person he directs, in possession of the property.
Contract for Sale— A contract for the sale of immovable property is a contract that a sale of
such property shall take place on terms settled between the parties. It does not of itself
create any interest in or charge on such property.
Sale deconstructed- Rights: Title; Exclusive Right to Possess, Exclusive Right to Alienate.

Agreement of sale-
 Sale takes place on a future date
 Ownership remains with seller
 Executory contract
 Does not coney any title.

• Vidyadhar v. Manikrao [1999]- Section 54

Facts- Defendant number 2 is the owner of a piece of property. He takes a
loan of Rs. 1500 from Defendant number 1 by executing a mortgage deed and giving the
property. There was a stipulation in the document that if the entire amount of Rs. 1500 was
returned before the expiry of 2 years, the property would be given back to Defendant
number 2. The property was subsequently transferred to Vidyadhar for a sum of Rs. 5000 by
a registered sale deed. D1 was not a party to the transaction of sale between D2 and
Vidyadhar. He had no knowledge about the terms settled between Vidyadhar and the
plaintiff. The transaction was not settled in his presence and nor any payment was made
in his presence.
Issue- Could D1 in this situation raise a plea as to the validity of the sale deed on the ground
of inadequacy of consideration or part payment thereof?

3
Registration
Held- The definition indicates that in order to constitute a sale, there must be a transfer of
ownership from one person to another, i.e., transfer of all rights and interests in the
properties which are possessed by that person are transferred by him to another person. The
transferor cannot retain any part of his interest or right in that property or else it would not be
a sale. The definition further says that the transfer of ownership has to be for a ‘price paid
or promised or part-paid and part-promised.’ Price thus constitutes an essential ingredient
of the transaction of sale. The words price paid or promised or part-paid and part promised
indicate that actual payment of whole of the price at the time of the execution of sale
deed is not sine qua non to the completion of the sale. Even if the whole of the price is
not paid but the document is executed and thereafter registered if the property is of the
value of more than Rs. 100/- the sale would be complete. There is a catenary of decisions
of various High Courts in which it has been held that even if the whole of the price is not
paid, the transaction of sale will take effect and the title would pass under that
transaction.
Test- …it was held that…part payment of consideration by vendee itself proved the
intention to pay the remaining amount of sale price. The real test is the intention of the
parties. In order to constitute a ‘sale’ the parties must intend to transfer the ownership
of the property and they must intend that the price would be paid either in present or in
future. The intention is to be gathered from the recital in the sale deed, conduct of the
parties and the evidence on record.
Held- Applying these principles to the instant case, it will be seen that defendant No. 2
executed a sale deed in favour of the plaintiff, presented it for registration, admitted its
execution before the sub-registrar before whom remaining part of the sale consideration
was paid and, thereafter, the document was registered. The additional circumstances are
that when the plaintiff instituted a suit on the basis of his title based on the aforesaid sale
deed, defendant No. 2 who was the vendor, admitted in his written statement, the whole case
set out by the plaintiff and further admitted in the witness box that he had executed a sale
deed in favour of the plaintiff and had also received full amount of consideration. These facts
clearly establish that a complete and formidable sale deed was executed by defendant no. 2 in
favour of the plaintiff and the title in the property passed to plaintiff.

• Rights & Liabilities of Buyers & Sellers [Section 55]Bare act

In the absence of a contract to the contrary, the buyer and the seller of immovable property
respectively are subject to the liabilities, and have the rights mentioned in the rules next
following or such of them as are applicable to the property sold.
Sellers Duties
• Disclose Defects- to disclose to the buyer any material defect in the property or in the
seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer
could not with ordinary care discover.
Defect: Latent or Patent.
**“An omission to make such disclosures as are mentioned in this section,
paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.
Defects in title are
1) Restrictive covenants
2) Liability to compulsory acquisition
3) Allottment of property to another coowner
4) Voidable title
• Produce Documents- The seller is bound to produce to the buyer on his request for
examination all documents of title relating to the property which are in the seller’s possession
or power.
• Duty to Answer
• Duty to Execute Conveyance Deed Properly
• Duty to Care
• Duty to handover possession
• Duty to Clear dues
• Deliver Documents of Title

Exchange and gift

Section 118 “Exchange” defined. —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”. A transfer of property in completion of an exchange can
b
Exchange:
❖ Ismail Shah v Saleh Mohammad 1925 Lah:
If there is a reciprocal transfer of two things, it does not matter that money is paid for
bringing about an equality of exchange. This is because Section 118 requires that neither
thing shall be money only.

Sale:
❖ John Thomas Case 2000 Ker:
Court observed that since the parties intended to execute sale deeds in favour of persons
nominated by them; an exchange was not contemplated by parties but sale of properties.

Section 122 — “Gift” is the transfer of certain existing moveable or immoveable property
made voluntarily and without consideration, by one person, called the donor, to another,
called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made. —Such acceptance must be made during the lifetime of the
donor and while he is still capable of giving. If the donee dies before acceptance, the gift is
Void.

Kinds of Gifts-
Void
Onerous- Single transfer of several things - donee has to accept the gift fully. Where gift is in
the form of separate and independent transfers - donee is at liberty to accept one and refuse
others.
Universal - Where a gift consists of donors’s whole property Donee is personally liable for
all the debts due and liabilities of the donor at the time of the gift to the extent of the property
comprised therein.
Death Bed Gift

Subhash Chandra v. Ganga Prasad

Facts- The subject of challenge was a settlement deed between plaintiff’s father and
plaintiff’s sister in favour of plaintiff’s brothers son.
❖ Prasanna Kumar (Donor)
❖ Two sons: Ganga Prasad and Balaram
❖ One daughter: Swarnalata
❖ Grandson: Subhas Chandra (Balaram’s son)
The trial court had dismissed plaintiff’s claim that the deed was fraudulent, collusive and
invalid. The court refused to cancel the document.
The High Court overruled the trial court and held that the court should have looked at the
fact that the donee could exercise undue influence over the donor
Supreme Court looked at whether the donee had exercised undue influence over the donor
• Can a gift deed be void if the donee has undue influence over the donor?
• Plaintiff’s father gifts the entire property in favour of the defendant and the plaintiff’s
nephew.
• Presumption of undue influence not satisfied if the transfer is made “in the case of a gift to a
son, grandson, or son in-law, although made during the donor's illness and a few days before
his death” (citing Halsbury with approval)

Law on undue influence-

Relation between parties was such that one must be in a position to dominate the other;
Second, whether the transaction appears to be vitiated by undue influence;
Third, if answer to second above is yes, burden on the party that was able to dominate the
will of the other party to prove that no undue influence was exercised.
law as to undue influence was the same in the case of gift inter vivos as in
the case of contract.

Held- The fact that a person gifted a portion of his properties to his only grandson before his
death is not on the face of it unconscionable. There is nothing on record and no evidence to
prove that son Balaram exercised undue influence over his father to get the properties
transferred to the grandson. We cannot lose sight of the fact that Balaram did not get the gift
executed in his own name. If Balaram was exercising undue influence, he was acting very
unwisely.

Sridhar v. N. Rivanna- A Condition in a Gift deed which restrains the right to alienation
of a property is void.

Facts- “NOW THIS INDENTURE WITNESSETH that in pursuance of the aforesaid

agreement and in consideration of extreme love and affection which the donor cherishes for
the done his grandson and the donee’s, offspring’s and the donee’s young brothers and their
male offspring’s who may be born hereafter he the donor doth hereby grant, convey,
makeover and transfer by way of gift to the done above name the immovable property
described in the schedule hereunder given which bears Municipal No.324, Old Poor House
Road Civil Station Bangalore, to be taken by his as a gift subject to the conditions hereinafter
mentioned. The donor covenants with the donee, that on the date of these presents, the
property that is now endowed as a gift is free from all encumbrances, liens, charges,
attachments from Court and lispardens and that he has absolute and unimpeachable right to
grant it as a gift and that no one else has any right to question the same. The donor has this
day handed over possession of the property hereby gifted to the donee, in accordance with
Law which the donee shall enjoy on and from this date, over which she can exercise all rights
of ownership subject to the conditions detailed hereinafter namely:-
1. The Donee or his younger brothers who may be born hereafter have no right to alienate
the schedule property in any manner whatsoever by way of sale, gift mortgage or otherwise.
2. The donee or his younger brothers who may be born hereafter shall enjoy the property
during his or their life time as the case may be and on his or their demise it shall devolve on
his or their male children then surviving who shall be at liberty to deal with the property
mentioned in the schedule hereunder in any mentioned her their to do with unstructed gifts.
3. In case the Donee or his younger brother or brothers who may be born hereafter die issue-
less, the said property hereby gifted shall devolve on Sri SOMESWARASWAMY of Sri
Someswara Temple Ulsoor Civil Station Bangalore, for the benefit of the said
Temple.”
Muniswamappa executed a gift deed in favour of his grandson. A condition is there
which restrains the alienation of the property.
Issue- Whether the condition mentioned in a gift deed which restrains the alienation of
property valid?
Can the condition be declared void?
Rule: the gift deed was certain and the condition restraining the alienation of the suit property
is void.
Judgement-
As per section 10 of the transfer of property act, it can be expressly held that the donee not
alienating the property is a void condition. The plaintiffs had no entitlement for declaration.
The appeal was dismissed.
Analysis:
Scrutinization of the gift deed revealed that the gift was from the plaintiff’s great grandfather
– Muniswamappa to the grandson who was a five-year old minor (who was represented by
his father) and not in favour of an unborn person. The condition was pertaining to the donee
and the younger brothers who may be born after the gift deed execution. Hence, Section 13 of
the Transfer of Property Act cannot be applied in the instant case.
Rule as per section 13: Section 13 not applicable

Module XIII

License is not transfer only right to enter the land. Permission coming from grantor.
Easements-Section 4 of the Indian Easement Act, 1882 defines it as follows:
“An easement is a right which the owner or occupier of certain land possesses, as such, for
the beneficial enjoyment of that land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in respect of certain other land not
his own.
Permission coming with land.
Associate right not ownership right, you have right over some else’s property in a limited
manner.
Enjoyment of your own property is protected. Easement is a right which exists for beneficial
enjoyment of land and is exercised upon the land of another. The land for whose beneficial
enjoyment is exercised as dominant heritage and the land upon which this right is exercised
is known servient heritage.
Easement is an incident of ownership of dominant heritage.
Exception:
In fact, whether he likes it or not, it is a burden brought to bear on the servient owner by
grant, by custom, by necessity, or by prescription. He cannot do anything on his own land
which affects the dominant heritage and he is bound to suffer for the advantage of the
dominant owner. Servient Heritage means an inherited property over which the dominant
owners have a right to use it to their advantages. Dominant Heritage means inheriting a right
over another’s property without owning it.

Adverse Possession
Section 27 of the Limitation Act: Extinguishment of right to property. —At the determination
of the period hereby limited to any person for instituting a suit for possession of any property,
his right to such property shall be extinguished.
Article 64 of the Limitation Act: For possession of immoveable property based on previous
possession and not on title, when the plaintiff in possession of the property has been
dispossessed, the period of limitation is 12 years, and this period commences from the date of
the dispossession.
Article 65 of the Limitation Act: For possession of immoveable property or any interest
therein based on title…12 year.

Adverse possessions have remained a part of the law and continue to exist. The concept of
adverse possession has a root in the aspect that it awards ownership of land to the person who
makes the best or highest use of the land. The land which is being used is more valuable than
idle land, is the concept of utilitarianism. The concept thus, allows the society as a whole to
benefit from the land being held adversely but allows a sufficient period for the “true
owner” to recover the land. The adverse possession statutes permit rapid development of
“wild” lands with the weak or indeterminate title. It helps in the Doctrine of Administration
also as it can be an effective and efficient way to remove or cure clouds of title which with
memories grow dim and evidence becomes unclear. The possessor who maintains and
improves the land has a more valid claim to the land than the owner who never visits or cares
for the land and uses it, is of no utility. If a former owner neglects and allows the gradual
dissociation between himself and what he is claiming, and he knows that someone else is
caring by doing acts, the attachment which one develops by caring cannot be easily parted
with. The bundle of ingredients constitutes adverse possession.

Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

• 1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on
part of the owner established. Successful application in this regard distances the title of the
land from the paper owner.
• 2. Specific positive intention to dispossess on the part of the adverse possessor effectively
shifts the title already distanced from the paper owner to the adverse possessor. Right thereby
accrues in favor of adverse possessor as intent to dispossess is an express statement of
urgency and intention in the upkeep of the property.

 Ravinder Kaur Grewal v Manjit Kaur

It was the claim of the Original Plaintiff that a family settlement had been entered, through which his
ownership and possession over the Disputed Property was accepted, with the names of the Original
Defendants remaining in the revenue records for half share of the Disputed Properties in light of a close
relationship between the two parties. However, due to disputes arising time and again, between the
Original Plaintiff and the Original Defendants, a memorandum of settlement was entered into on
March 10, 1988 in order to formalise the earlier settlement. Despite this, the issues between the
parties continued to persist causing the Original Plaintiff to file a suit for declaration of a decree
establishing his ownership and possession over the Disputed Property. Unfortunately, during the
pendency of the suit, the Original Plaintiff expired and the Appellants were brought on record as legal
heirs. Ultimately, the trial court partly decreed the suit by decreeing the Appellants to be owners in
possession of khasra no. 935/2 and to the extent of half share in khasra no. 935/1 of the total Disputed
Property.
Aggrieved by the decree, the Appellants filed an appeal to the District court, Sangrur, wherein the
appeal was allowed. The decree of the trial court was modified to declare the Appellants as the
owners of the Disputed Property along with construction upon it. A second appeal was filed by
Manjit Kaur & Ors. (hereinafter referred to as the “Respondents”), who were the legal representatives
of the Original Defendants, before the High Court in R.S.A. No. 946/2004. The second appeal was
decided in favour of the Respondents, with the High Court setting aside the decree passed by the
lower appellate court and holding that the memorandum of settlement, in order to be legally
enforceable, would require registration since it creates a right against an immovable property.
Thus, leading to the present appeal.

Issue-‘Whether Article 654 of the Act only enables a person to set up a plea of adverse possession
as a shield as a defendant and such a plea cannot be used as a sword by a plaintiff to protect the
possession of immovable property or to recover it in case of dispossession?- In Article 65 in the
opening part a suit “for possession of immovable property or any interest therein based on title” has
been used. Expression “title” would include the title acquired by the plaintiff by way of adverse
possession.

Held- Adverse possession under the Limitation Act, 1963

Adverse possession is a hostile possession by clearly asserting hostile title in denial of title of
the true owner. It was held by the larger bench that the word ‘title’ as used under Article 65
would include title acquired by way of adverse possession. Thus, under Article 65, a suit
based on title for recovery of possession is maintainable by the Respondents only within 12
years from the date of start of the adverse possession. Article 65 of the Limitation Act, 1963
only restricts the right of an owner to recover possession before the period of limitation
fixed for extinction of his rights expires. Once the right has been extinguished, another
person acquires prescriptive rights which cannot be defeated by re-entry by the owner
or subsequent acknowledgement of his rights. Thus, the question was answered in favour
of the Appellants vide judgement dated August 07, 2019.1 The same was not discussed in the
judgement under the present appeal, since the trial Court had found that the possession of the
Original Plaintiff was only permissive possession.

Key held- We hold that a person in possession cannot be ousted by another person except by due
procedure of law and once 12 years' period of adverse possession is over, even owner's right to
eject him is lost and the possessory owner acquires right, title and interest possessed by the
outgoing person/owner as the case may be against whom he has prescribed. In our opinion,
consequence is that once the right, title or interest is acquired it can be used as a sword by the
plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person
who has perfected title by way of adverse possession, can file a suit for restoration of possession
in case of dispossession.
There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a
plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to
protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of
title of the owner, the person in possession acquires absolute title and if actual owner dispossesses
another person after extinguishment of his title, he can be evicted by such a person by filing of suit
under Article 65 of the Act.

Reasoning- Requirements
Possession is the root of the title and is right like property. As ownership is also of different kinds of
viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership.
Limited ownership or limited right to property may be enjoyed by a holder…

4
prescribes a limitation of 12 years for a suit for possession of an immovable property or any interest therein
based on title.
The adverse possession requires all the three classic requirements to coexist at the same time,
namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario
i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious, and peaceful so
that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis
that but for due diligence he would have known it. Adverse possession cannot be decreed on a title
which is not pleaded. Animus possidendi under hostile colour of title is required. A trespasser’s long
possession is not synonym with adverse possession. A trespasser’s possession is construed to be on
behalf of the owner, the casual user does not constitute adverse possession. The owner can take
possession from a trespasser at any point in time. Possessor looks after the property, protects it and in
case of agricultural property by and the large concept is that actual tiller should own the land who
works by dint of his hard labour and makes the land cultivable. The legislature in various States confers
rights based on possession.

Adverse possession is heritable and there can be tacking of adverse possession by two or more
persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be
defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of
certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to
constitute continuity of possession, that person must be claiming through whom it is sought to
be tacked and would depend on the identity of the same property under the same right.

According to Blacks Law Dictionary tacking is, “the joining of consecutive periods of possession by
different persons to treat the periods as one continuous period; especially the adding of one’s period of
land possession to that of a prior possessor to establish continuous adverse possession for the statutory
period.”

Is Adverse Possession Permitted on Government Land?

When we consider the law of adverse possession as has developed visàvis to property dedicated to
public use, courts have been loath to confer the right by adverse possession. There are instances when
such properties are encroached upon and then a plea of adverse possession is raised. In
Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law
of adverse possession may cause harsh consequences, hence, we are constrained to observe that it
would be advisable that concerning such properties dedicated to public cause, it is made clear in the
statute of limitation that no rights can accrue by adverse possession

Can an Adverse Possessor Perfect the Title to the Property?

Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by
operation of which right to access the court expires through efflux of time. As against rights of the
paperowner, in the context of adverse possession, there evolves a set of competing rights in favour of
the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the
owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule,
not only to cut off one’s right to bring an action for the recovery of property that has been in the
adverse possession of another for a specified time but also to vest the possessor with title. The
intention of such statutes is not to punish one who neglects to assert rights, but to protect those who
have maintained the possession of property for the time specified by the statute under claim of right or
colour of title.
Given the aforesaid, a question to ponder is when a person having no title, merely on the strength of
possessory title can obtain an injunction and can maintain a suit for ejectment of a trespasser. Why a
person who has perfected his title by way of adverse possession cannot file a suit for obtaining an
injunction protecting possession and for recovery of possession in case his dispossession is by a third
person or by an owner after the extinguishment of his title. In case a person in adverse possession
has perfected his title by adverse possession and after the extinguishment of the title of the true
owner, he cannot be successfully dispossessed by a true owner as the owner has lost his right, title
and interest.
 Module IV
Section 5-
Inter vivos- between two juristic persons. Juristic- living + legally allowed

Partition: VN Sarin v Ajit Kr. Poplai

Facts- Coparcenary property – Partition – Tenant’s (Sarin’s) Eviction Application5

Issue- Is there a change in landlord or title?
Held-Where a property to an undivided Hindu family and on partition it falls to the share of
one of the coparceners of the family, there is no doubt a change of the landlord of the said
premises, but the said change is not of the same character as the change which is effected by
transfer of premises…An oral partition took place between the members of the said family
and properties were transferred in accordance with it in the names of the several members.
The question which arose for the decision of this Court (in a different case) was whether there
was an indirect transfer of properties allowed to the wife and minor son in the partition…it
was thought that a partition is not a transfer.”
It is true that a partition is not actually a transfer of property but would only signify the
surrender of a portion of a joint right in exchange for a similar right from the other co-
sharer or co-sharers…We are satisfied that it would be unreasonable to hold that
allotment of one parcel of property belonging to an undivided Hindu family to an
individual coparcener as a result of partition is an acquisition of the said property by
the said coparcener.
On partition the part of the property in possession of the co-parcener becomes
crystalized.

Transfer of Spes Succesionis/ Chance of an heir apparent – void ab initio

Heir Apparent - Heir - A person who succeeds to the property of another after the latter’s
death- Intestate or will.
- nemo est heres viventi – a living person does not have any heir.
• Chance - Who would be the heir; would the property be available
Right becomes concrete only on her demise until then, it is mere spes successionis.

Section 43 - Transfer by unauthorised person who subsequently acquires interest in property

transferred. Transfer subsists if transferee does not repudiate the deed.

Juxtaposing Section 6(a) & Section 43: Section 6(a) deals with certain kinds of interests in
property mentioned there and prohibits a transfer simipliciter of those interests. Section 43
deals with representations as to title made by a transferor who had no title at the time of
transfer and provides that the transfer shall fasten itself on the title which the transferor
subsequently acquires.
Section 6(a) enacts a rule of substantive law, while section 43 enacts a rule of estoppel which
is one of evidence. The two provisions operate on different fields, and under different
conditions, and we see no ground for reading a conflict between them…To hold that transfers
5
Section 14 of Delhi rent control act- Protection of tenant against eviction. – Provides that “no order or decree
for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord
against a tenant…[if] landlord has acquired any premises by transfer…unless a period of five years have
elapsed from the date of the acquisition. + bona fide requirement for residential purposes of self or family.
by persons who have only a spes successionis at the date of transfer are not within the
protection afforded by section 43 would destroy its utility to a large extent.
Transfer by spes successionis would also be valid for transferee if done in good faith.

Section 43 is an exception to 6a, so if section 43 is

Section 8- Operation of transfer

Unless a different intention is expressed or necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then capable of passing in
the property and in the legal incidents thereof.
where the property is machinery attached to the earth, the movable parts thereof… [Duncan
Industries]

Suresh Chand case - ‘Unless a different intention is expressed or necessarily implied’

Nathoo Lal v. Durga Prasad- The position, therefore, is that to convey an absolute estate to a
Hindu Female, no express power of alienation need be given, it is enough if the words are
used of such amplitude as would convey full rights of ownership. The learned judges of the
High Court were therefore clearly wrong in law in holding that the will having been made by
the father in favour of his daughter, it should be presumed that he intended to give her a
limited life estate.
Nathoo Lal v. Durga Prasad and the concept of life interest. Transferor cannot transfer a
better title to the transferee than the one they have.

Suresh Chand v Kundan

Facts– Kundan & Mohar – co-sharers of land which had some plants and saplings - executed
an agreement for sale – but not a sale deed in favour of Suresh – specific performance –
contention.
Issue- Did the transfer of land entail transfer of trees? Would transfer of trees entail transfer
of land?
Rule- Section 8, TPA– “Unless a different intention is expressed or necessarily implied.
Held- perusal of Section 3 of the Act shows that all things attached to the earth are included
in the land. Thus, the standing trees being imbedded in the earth is part of the land.
Section 8 of the Act provides that if there is any transfer of a property and unless there is any
expressed or implied different intention appearing in the agreement, the interest in the
property would also include anything attached with the land which is agreed to be sold. Thus,
hen a vendor sells a property, he sells all his rights imbedded in the property unless it
specifically or impliedly excluded…In the present case, there was no mention in the
agreement that the saplings were not being sold along with the land. In the absence of any
expressed or implied intention in the agreement, it would be taken that the land along with
the saplings standing on the land which subsequently grown into trees were sold.

Duncan Industries: Transfer of debts under section 8

Facts
ICI India Ltd. executed an agreement of sale wherein it agreed to transfer on an as is where is
basis and as a going concern its fertilizer business in favour of Chand Chhap Fertilizer and
Chemicals Ltd., which company has since been renamed as M/s. Duncans Industries Limited,
for a total sale consideration of Rs.70 crores which was termed as slump price in the
agreement. The said agreement also stated that the vendor would on the transfer date transfer
the fertilizer business by actual delivery of possession to the CCFCL in respect of such of the
estates and properties mentioned in the agreement as were capable of being transferred by
actual and/or constructive delivery and in respect of the estates requiring transfer by
execution of necessary documents vesting the title thereof in CCFCL.
Fertilizer business was defined to include: (1) Plots measuring in aggregate 243 acres
together with the buildings and structures thereon forming part of the fertilizer business as on
the Transfer Date. (2) Freehold plots and residential flats in two different locations. (3) Plant
and machinery relating to the Fertilizer business including the Ammonia Manufacturing
Plants, the Captive power plant and all other movable capital assets including vehicles,
furniture, air-conditioners, stand-by systems, pipelines, railway siding etc., as on the Transfer
Date and wheresoever situate, all of which relate exclusively to the Fertilizer Business and
are owned and in the possession of ICI or are owned by ICI but in the lawful possession of
any third party for and on behalf of IC.
Upon the assignment of the debt the respondent company undoubtedly became
entitled to get themselves substituted under Order XXII, rule 10 as plaintiffs in the
pending suit but they did not choose to do so and allowed the transferors to continue the suit
and a decree to be passed in their favor. The true position, therefore, is that at the date of
the transfer of debt to the respondent company, the transferors could not transfer the
decree, because the decree did not exist…Section 8 of the transfer of Property Act does not
operate to pass any future property, for that section passes all interest which the transferor
can then, i.e., at the date of the transfer, pass…The transfer in writing of a property which
is the subject-matter of a suit without in terms transferring the decree passed or to be
passed in the suit in relation to that property does not entitle the transferee to
apply for execution of the decree.

Transfer of actionable claims-

Section 6 (e)- states that a mere right to sue cannot be transferred.

Section 9
Oral transfer—A transfer of property may be made without writing in every case in which a
writing is not expressly required by law.
 Module V

Rule 1: Sec.10 [Conditions Restraining Alienation] Transferee has absolute title and the
transferor places absolute restraint on alienation. Absolute restraint is void. Partial is not.

Rule 2: Section 11 para 1: [Restrictions Restraining Enjoyment]: Transferor makes an

absolute transfer but places stipulations (or tries to retain interest) as to the way the property
may be enjoyed.

Rule 3: Section 11 para 2: [Positive Covenants]: Directions to Transferee to do something

relating to the transferor’s beneficial enjoyment. Properties are similarly situated.

Rule 4: Section 40: [Negative Covenants]: enforcing a right to restrain enjoyment.

• Gift; With Notice; Without Notice; Running with land.

Rule 5: Section 12: condition or limitation making any interest reserved or cease to exist on
insolvency of the transferee.

Rule 6: Section 31: Conditions superadded: Subject to rule 5 (Section 12): transfer of
property an interest therein may be created with the condition superadded that it shall cease to
exist in case a specified uncertain event shall happen, or in case a specified uncertain event
shall not happen.

Right to alienation
Section 10- absolute restraint on alienation void.
Rationale- Law favours the freedom of transferability of property.
Different kinds of conditions/ Conditional Transfers – condition precedent and condition
subsequent.
How would one determine the nature of a restraint? - Test is of substance, not merely of
form.

 Syed Mohammad Raza v. Abbas Bandi Bibi Partial Restraint

Facts- Husband (H) had two wives and the property was settled upon both the wives in equal
shares, as a result of a compromise that was drawn up and given effect to as per which, the
management of this property was with the husband during his lifetime, but the property was
to be inherited by the respective wives’ heirs. Further, the wives were not empowered to sell
the property to a stranger, i.e., to a person outside the family.
Upon the demise of the husband, one of the wives, W1 sold the property to A, who took
possession of the property and remained in its undisturbed possession for more than 12 years.
W1 died and upon her death, her heir claimed 2/3rd share in the property now with A,
claiming that since W1 was not empowered to sell the property to a stranger which she did in
clear violation of the terms of the compromise and settlement, the alienation was void, and A
did not acquire any title to it. They further contended that the restriction on her right of
alienation was merely a partial restraint and was binding on her.
Held- the restriction was not absolute, but partial; it forbids only alienation to strangers,
leaving her free to make any transfer she pleases within the ambit of the family.
In view of the terms of this section, and in the absence of any authority suggesting that before
the Act a different principle was applied by the Courts in India, their Lordships think that it
would be impossible for them to assert that such an agreement as they are now considering
was contrary to justice, equity and good conscience.”
But apart from this, it seems clear that after the passing of the Transfer of Property Act in
1882, a partial restriction upon the power of disposition would not, in the case of a transfer
inter vivos, be regarded as repugnant; (see Section 10 of the Act).6

 Muniswamy V Venkataswamy Absolute restraint

Facts- A family consisted of father F, mother M and two sons S1 and S2. Pursuant to a
partition, the joint family properties were divided, with one half of them taken by M and F,
and one-fourth each to S1 and S2. The partition deed incorporated a condition that each of
these persons were to enjoy the property according to their wishes in any manner they
liked and were specifically adjoined to effect mutation of name, so that taxes could be paid
by the respective parties. The properties were ancestral as well as self-acquired. However,
one condition in the partition deed provided that the mother and the father were to enjoy
the properties only during their lifetime and after their deaths, this property was to be
partitioned equally between S1 and S2. No similar condition was appended to the shares of
S1 and S2. This creation of life interest meant that the parents had no power to alienate
the property during their lifetime. The parents after partition took possession of the
property and then later sold it through a registered sale deed to S1. S2 challenged the validity
of the sale on the ground that since the parents had no power of alienation, the sale affected
by them was invalid. He also claimed a half share in the property, as per the terms of the
partition deed.
Held- if stipulations are ambiguous, susceptible to contrary or alternative meaning, it would
not be permissible to read into the said stipulation by inference restrictive covenant. In the
instant case, it is possible to assume from the stipulation that an absolute estate is granted in
favour of the parents in view of the terms that they should enjoy the property in the manner
they like and in the event of they dying intestate and that full or any part of the property
available is left for intestate succession, in such a situation latter stipulation may come into
effect, otherwise not.
The use of the expressions, ‘each of them should get their khatka of the property in their
names; should enjoy the properties in the manner they like’, shows clearly, that what was
granted to them was an absolute estate and not a limited interest in the property. In such an
event, the court held that a restriction, prohibiting them absolutely from transferring the
property, amounted to an absolute restraint on alienation and was therefore bad in the
eyes of law.
In the light of the ratio laid down by the Privy Council, this Court, and other High Courts, it
becomes explicit that per se the provisions of Section 10 of the T.P. Act would not apply to
the partition and family settlement. Since there is no transfer of title contemplated in a
partition. However, on the grounds of sound public policy any total restraint on the right of
alienation in respect of immovable property which prevents free circulation is to be held void,
but any partial restraints or limitation would be valid and binding.

 Zoroastrian Cooperative Housing Society Limited Vs. District Registrar Partial

Restraint

6
Partial restraint not void.
Facts- Zoroastrian Co-Op Housing Society – Byelaws7 – Qualifications to be a member –
Must be a Parsi + Prior approval of the Society - restriction under S 10?
Rule- The section applies to a case where property is transferred subject to a condition or
limitation absolutely restraining the transferee from parting with his interest in property. For
making such a condition invalid, the restraint must be an absolute restraint. It must be a
restraint imposed while the property is being transferred to the transferee. Here, respondent
No. 2 became a member of the Society on the death of his father …there was really no
transfer of property to respondent no. 2. He inherited it with the limitations thereon placed
…”
Held- Partial Restraints: Respondent No. 2 has the right to transfer the property to a person
who is qualified to be a member of the society as per its byelaws. At best, it is partial restraint
on alienation. Such partial restraints are valid if imposed in a family settlement, partition or
compromise of disputed claims, preservation of communities…
So when a person accepts membership in a cooperative society by submitting himself to the
bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and
places on himself a qualified restriction in his right to transfer the property by stipulating that
the same would be transferred back to the society or with the prior consent of the society to a
person qualified to be a member of the society, it cannot be held to be an absolute restraint on
alienation offending Section 10 of the transfer of property act. He has placed that
restriction on himself in the interests of the collective body, society. He has voluntarily
submerged his rights in that of society.

Sec.11– Restrictions repugnant8 to interest created + transfer of absolute interest9. Transfer

not affected if restriction is repugnant
Transfer conditions can be imposed if beneficial right for the owner.

Section 11, like section 10, seeks to restrain the previous holder/owner of the property to
unduly interfere with the rights of the owner of the property, once the property has passed to
him along with all the rights.
The primary difference between section 10 and section 11 is that under section 10, it can be a
transfer of either all the rights in the property or even only some rights. • It is a conveyance of
a transferable interest in the property that can be an absolute or even a partial transfer, but
section 11 applies only to those cases where there is an absolute transfer, such as by way of
sale or gift. No right in the property is retained by the transferor in the property, as the same
is transferred absolutely to the transferee.
The second distinguishing feature is that section 10 relates to the power of the owner to
alienate the property, and makes total restraints on it void, while section 11 protects the
power of the owner to enjoy the property in any manner whatsoever, without there being any
dictation from anyone.

Section 40- Negative covenant

7
The bye-laws provide that he should have the prior consent of the Society for transferring the property or his
membership to a person qualified to be a member of the Society. These are restrictions in the interests of the
Society and its members and consistent with the object with which the Society was formed. He cannot question
that restriction.
8
unfavourable
9
Sale, exchange, gift not lease, mortgage
Transferee bound only if he has notice of the condition or is a gratuitous10 transferee. Not
otherwise.
Third person is the original owner who no longer has any right in the property- can place a
right to restraint the enjoyment in a particular manner.

When the new transferor now transfers the property, binding only if the new transferee has
notice or gratuitous- og owner is entitled to benefit on the obligation but can be enforced
against them.
Negative covenant gets attached to the land and is enforceable against third party. Positive is
affirmative covenants remain in the nature of mutual contract and are not enforceable as
against a third party.

TULK v MOXHAY
Facts- Tulk sold a plot of land to B - conditions: keeping & maintaining the garden as it is -
allowing B to charge a reasonable rent/fee for the usage of the garden. Subsequent buyer –-
wanted to demolish the garden and construct on it was aware of the original conditions filed a
bill for injunction
Held- The High Court, consisting of Lord Cottenham, found for Tulk, and passed an
injunction to prevent Moxhay from building on the land. The covenant had been intended to
run with the land at the time it was made, and all subsequent purchasers had been informed of
its existence. Moreover, as a covenant amounts to a contract between a vendor and vendee, it
is enforceable against a purchaser for value with either constructive or actual notice. As
Moxhay had actual notice of the covenant, he was obligated to abide by it.
Since a covenant is a contract between the vendor and the vendee, it may be enforced
against a subsequent purchaser who has notice of the contractual obligation of his
vendor, even though it does not run with the land.

Section12- ending of interest on insolvency of the person or when he tries to dispose that
interest on insolvency will apply. - void.
Not apply to lease agreement.

Section 31- cease of transfer on happening or not happening of a specified uncertain event
subject to section 12.

Absolute transfer- immediate vesting of interest + no condition attached.

Conditional transfers - the fulfilment of any condition attached thereto by the transferee.
Types of conditions- condition precedent11, condition subsequent12, condition collateral13

Section 25- Conditional Transfer

condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of
such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or
involves or implies injury to the person or property of another, or the Court regards it as
immoral or opposed to public policy.
10
Without consideration
11
- Any condition that is required to be fulfilled before the transfer of any property is called a condition
precedent. [Sections 25-27]
12
Any condition that is required to be fulfilled after the transfer of any property is called condition subsequent.
This condition is to be strictly complied with. [28-34]
13
Any condition that is required to be fulfilled simultaneously after the transfer of any property is called
condition collateral.
Section 26- if substantially complied with
Section 27- ulterior disposition> prior disposition, due to its failure due to an uncertain event
unless a specified intention and happening of certain events is mentioned.
Section 28- Specified certain event, specified uncertain event.

Condition subsequent- strictly fulfilled.

Condition Precedent- Substantial compliance

Section 32- Following Conditions are Void: Conditions void for uncertainty; opposed to
public policy; condition in restraint of marriage; condition which is immoral condition which
is impossible to perform; condition as to residence when there is uncertainty.

Precedent- Estate is not vested in the grantee until the condition is performed/fulfilled • Does
not require strict compliance. Substantial compliance is sufficient • If performance of the
condition precedent is impossible, both the condition precedent and estate limited upon it are
void. • If the condition precedent is illegal, the property limited upon it fails. • By the
performance of the condition an estate not previously vested becomes void.

Subsequent- In condition subsequent, the estate vests in the grantee immediately and remains
in the grantee till the condition is broken. • It requires strict compliance • If the performance
is impossible, the condition subsequent fails and the previous estate becomes indefeasible. •
If the condition subsequent is illegal, the previous estate becomes indefeasible, and the
condition is ignored. • By the performance of the condition, an estate previously vested
becomes divested.
 Module VI
SECTIONS 13-16 & 20 – RULES FOR CREATING FUTURE INTERESTS

Read section 13 with section 20- unless it extends to the whole of the remaining life interest
of the transferor.”
— Once the interests has been vested in an unborn child, it cannot be defeated.

• Prior interest:
Life Estate in favour of living person(s)
• Subsequent interest:
Absolute Estate in favour of an unborn person – ‘…unless it extends to the whole of the
remaining interest of the transferor in the property

Unborn person must come into existence before the death of last life estate holder
• The unborn person gets the rights immediately upon birth* (see S 20), But possession after
the death of the person having the life interest.

Section 15- class of person- children, nephew grandchildren- invalid only for that class, not
everyone, severance

Test for vesting

An interest is vested if it vests in the transferee immediately or on the happening of an event
which is bound to happen. Such an estate does not cease to be a vested interest merely
because
1. The enjoyment is postponed,
2. A prior interest is given to another
3. The income accruing from it is directed to be accumulated until the time of
enjoyment arrives.
4. Where the interest would pass to another on the happening of an event

Rajes Kanta Roy V Santi Debi

• , father created a trust to pay certain debts and thereafter, the father executed a trust
deed and appointed Rajes, his eldest son as the trustee.
• The trust was to dissolve upon the -
a.) death of the settlor (father Ramani Kanta)
b.) payment of the debts incurred by him.
• After the dissolution of the trust, the property of the trust was to be transferred to
settlor’s two sons equally. If Either of these sons died before payment of debts, his
heirs will get the property upon payment of death.
• As a part of the compromise, Santi Debi was to get a monthly sum of Rs. 645 from
both the brothers. One of the terms of the compromise was that on default of payment,
Santi Debi will be entitled to realise the sum by means of execution of the decree.
• There was a default of payment and Santi Debi claimed Rs. 8,075 (total due +
interest) against both the brothers, Rajes and Ramendra. Execution was asked for by
 way of attachment and sale of immovable properties named by father for both the
sons.
• Issue- Does Rajes Kanta Roy have attachable interests through the transfer of
immovable property made by Ramani Kanta Roy through a trust deed?
Points of consideration:
• In order to claim the arrears by attaching the property, Santi Debi will have to prove
that through the trust deed, Ramani Kanta Roy had transferred vested interest in
favour of Rajes and Ramendra.
• Rajes will have to prove that what was transferred was contingent interest and not
vested interest hence, the immovable property may not be attached unless the debts of
father are not paid.
22- It appears to us reasonably clear that the intention of the settlor, taking cls. 12(a) and (c)
together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the
properties comprised therein, including premises No. 44/2, Lansdowne Road, is vested in
title but restricted in enjoyment so long as the settlor is alive and the debts are not
discharged…
These arrangements taken together clearly indicate that what is postponed is not the very
vesting of the property in the lots themselves but that the enjoyment of the income thereof is
burdened with certain monthly payments and with the obligation to discharge debts therefrom
notionally pro rata, all of which taken together constitute application of the income for his
benefit. Intention- vested in children and only whether an interest is vested or not is to be
gathered from a comprehensive review of the terms of thedocument.

Sometimes there is absolute vesting and sometimes there is contingent vesting as

contemplated in Sections 19 and 21 of the transfer of property act 1882. In order to ascertain
the true intention of the settlor one has to closely scrutinise the settlement deed, whether the
intention of the settlor was to divest the property in his lifetime or to divest the property
contingently on the happening of certain event.
Rule - where the enjoyment of property is postponed but present income is to be applied
to the benefit of donee, gift is vested and not contingent.

Ma Yait v The Official Assignee (1930) 32 BOMLR 125

The manner in which the trust is to come into operation after the death of the settler was, the
property to be comprised in three schedules. The trustees, during the life of the widow and
until the youngest child attained the age of twenty, were to distribute the income in the
manner provided, namely, that they were to pay 1,000 rupees a month to the widow,
and to divide the remainder amongst the children, including the eldest son.
After the death of the youngest child attained the age of twenty, property was to be sold,
and the proceeds were to be divided in equal shares between the children then
surviving.
There was a slight alteration in the trust in relation to the property comprised in the fourth
schedule, because in that case the property was not to be distributed until the death of the
youngest child, and it was to be divided then amongst the children living at that date.
Now, it is plain that the result of this disposition was to create first of all, a vested interest
in all the children in the income of the property. Secondly, it created a contingent
interest in all the children in respect of all the property until, the youngest child reached
the age of twenty. When the youngest child reached the age of twenty, the children who
were alive at that date obtained a vested interest and a right to have the proceeds distributed
among them as to the property discussed under first, second and third schedules.
As to the property of the fourth schedule, all the children took a vested interest until the death
of the youngest child, and, as soon as the youngest child died, the children then surviving,
gets the property distributed among them.

That is a very plain and ordinary settlement, and it gives very plain and well-understood
rights to all the parties who benefit under the settlement: a vested right in the income,
contingent rights in the corpus; and it appears to their Lordships to be plain that the
contingent interest which the children took, whether they took it under the first, second and
third schedules or under fourth schedule, was something quite different from a mere
possibility of a like nature of an heir-apparent succeeding to the estate, or the chance of a
relation obtaining a legacy. It is a well ascertained form of property. It certainly has been
transferred in this country for generations-in respect of which it is quite possible to raise
money and to dispose of it anyway that the beneficiary chooses. basically,

Properties in schedule I, II, III: Contingent interest in the corpus of the properties until
youngest reached 20 years of age; Vested interest in these properties and right to have
proceeds distributed when he reached 20.
Properties in schedule IV: vested interest in distribution after youngest child died, disposition
created interests and not spes successionis.

Module III
Registration

Section 17. Documents of which registration is compulsory.

• Immoveable Property of Rs. 100 and upwards
Section 18: Optional Registration
• Immoveable Property of below Rs. 100.
Section 49 Effects of Non-Registration
• Recognition & Evidence in Court

Registration process- The sale deed must be classified as either a “Deed of Sale” if the
property is being sold, or as a “Deed of Mortgage” if the property is being leased or
mortgaged. The sale deed must contain accurate information pertaining to the sale so as to
enable a person to identify the immovable property which is the subject matter of the deed. A
sale deed is incomplete if it is not accompanied by a Sale Agreement containing all the
terms and conditions that have been agreed to by the buyer and the seller.
• The value of the property has to be estimated based on the circle rate or guidance value
(Minimum value set by the State Government’s revenue department or the local development
authorities at which the sale can occur) in that area. The circle rates of the area and the actual
price paid for the property are compared. While calculating the stamp duty, the higher of the
two values, i.e., the circle rate and the actual price paid, has to be taken into consideration.
Non judicial stamp paper of the value so calculated must be purchased thereafter.
Subsequently, the deed has to be prepared and typed on stamp papers.
• The final step involved for getting the sale deed registered is to approach the Sub-
Registrar’s office in order to get the sale deed registered. The parties be accompanied by two
witnesses.

Section 18 of Indian registration act- Documents of which registration is optional.

Section 17 in The Registration Act, 1908- Documents of which registration is compulsory. .
17: Documents of which registration is compulsory-
• Gift deed related to an immovable property.
• Non-testamentary instruments:
a. purporting to creation, assignment, declaration, extinguishing of any interest in any
immovable property worth Rs. 100 and above.
b. which acknowledge receipt or payment of any consideration for creation, assignment,
declaration or limitation of any right, title or interest.
• Lease of immovable property for any term exceeding one year or reservation of yearly
rent;
• If above mentioned transfers are made without registration, then they shall be deemed
to be invalid.

Section 49: Effect of non-registration of documents required to be registered.

No document required by Section 17 (or any provision of the Transfer of Property Act) to be
registered shall
(a) affect any immovable property comprised therein, or […]
(c) be received as evidence of any transaction affecting such property or conferring such
power, unless it has been registered

Consequences of non-registration:
• Document will not take effect against any oral transfer
• Documents cannot be taken as evidence for the creation of any right, duty or liability
of immovable property.
• Not be presented as evidence in the court of law for any other purpose.

• Moveable – may be transferred by delivery of possession

• Immoveable – transferred through a written and registered document.
meaning of attestation is to bear witness to a fact
• Written
•  transferor “executes the deed” and he is called executant. Attestation proves
presence and free will of executant.
• Must be by two or more persons and be present.
• Attesting witness must sign the document
• After receiving personal acknowledgment from the executant and his signature/thumb
impression.
 • Must be attested by a person of sound mind and major.
Attesting witness has seen the executant.

Suraj Lamp and Industries Pvt. Ltd. v State of Haryana and Ors.
Facts- This case is in continuation to another case by the Supreme Court, Suraj Lamp and
Industries Pvt. Ltd. v. State of Haryana and Anr. AIR 2009 SC 3077. In this case, the
Supreme Court invites the opinions of Solicitor General of Union and States of Haryana,
Delhi, Punjab and Uttar Pradesh on the the ill -effects of transfer of land through General
Power of Attorney Sales (for short 'GPA Sales') or Sale Agreement/General Power of
Attorney/Will transfers (for short 'SA/GPA/WILL' transfers) rather than a valid
conveyance deed.
Held- The four states have responded and confirmed that SA/GPA/WILL transfers required
to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations
due to defective title. Therefore, SA/GPA/Will are not valid conveyance deeds, they lead to
a loss of revenue+ Stamp duty should also be lowered
• In the absence of a deed of conveyance (duly stamped and registered as required by
law), no right, title or interest in an immoveable property can be transferred.
• Para 12 - Any contract of sale (agreement to sell) which is not a registered deed of
conveyance (deed of sale) …will not confer any title nor transfer any interest in an
immovable property. According to Transfer of Property Act, an agreement of sale,
whether with possession or without possession, is not a conveyance. Section 54 of
Transfer of Property Act enacts that sale of immoveable property can be made
only by a registered instrument and an agreement of sale does not create any
interest or charge on its subject matter.
immovable property can be legally and lawfully transferred/conveyed only by a
registered deed of conveyance. Transactions of the nature of 'GPA sales' or
'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can
they be recognized or valid mode of transfer of immoveable property. The courts will
not treat such transactions as completed or concluded transfers or as conveyances as
they neither convey title nor create any interest in an immovable property. They cannot
be recognised as deeds of title.

Facts- The petitioner claims that one Ramnath and his family members sold two and half
acres of land in Gurgoan to them by means of an agreement of sale, General Power of
Attorney and a will in the year 1991 for a consideration of Rs.716,695/-. It is further alleged
that the petitioner verbally agreed to sell a part of the said property measuring one acre to
one Dharamvir Yadav for Rs.60 lakhs in December 1996. It is stated that the said
Dharamvir Yadav, and his son Mohit Yadav, instead of proceeding with the transaction with
the petitioner, directly got in touch with Ramanath and his family members and in 1997
got a GPA in favour of Dharamvir Yadav regarding the entire two and half acres executed
and registered and illegally cancelled the earlier GPA in favour of petitioner.
Object & Purpose of Registration Act: “The Registration Act, 1908, was enacted with the
intention of providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from fraud and forgery of
documents of transfer. This is achieved by requiring compulsory registration of
certain types of documents and providing for consequences of non-registration. Section 17 of
the Registration Act clearly provides that any document (other than testamentary
instruments) which purports or operates to create, declare, assign, limit or extinguish whether
in present or in future "any right, title or interest" whether vested or contingent of the value of
Rs.100 and upwards to or in immovable property”
Section 49 of the said Act provides that no document required by section 17 to be registered
shall, affect any immovable property comprised therein or received as evidence of any
transaction affected such property, unless it has been registered. Registration of a document
gives notice to the world that such a document has been executed. Registration provides
safety and security to transactions relating to immovable property, even if the document
is lost or destroyed. It gives publicity and public exposure to documents thereby
preventing forgeries and frauds in regard to transactions and execution of documents.
Registration provides information to people who may deal with a property, as to the nature
and extent of the rights which persons may have, affecting that property. In other words, it
enables people to find out whether any particular property with which they are concerned, has
been subjected to any legal obligation or liability and who is or is the person/s presently
having right, title, and interest in the property. It gives solemnity of form and perpetuate
documents which are of legal importance or relevance by recording them, where people
may see the record and enquire and ascertain what the particulars are and as far as
land is concerned what obligations exist with regard to them.

Why not GPA? GPA Sales makes title verification and certification of title, which is an
integral part of orderly conduct of transactions relating to immovable property,
difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a
property with an assurance of good and marketable title. If a property worth `5 millions
is sold for `2 millions, the Undervaluation Rules may enable the state government to initiate
proceedings so as to ensure that the deficit stamp duty and registration charges are recovered.

Held- It is thus clear that a transfer of immovable property by way of sale can only be by a
deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped
and registered as required by law), no right, title or interest in immoveable property can be
transferred. Any contract of sale (or agreement to sell) which is not a registered deed of
conveyance (deed of sale) would fall short of the requirements of section 54 and 55 of the TP
Act and will not confer title nor transfer any interest in an immovable property (except to the
limited right granted under section 53A of theTP Act).

Concluding remarks- There cannot be a sale by execution of a power of attorney nor can
there be a transfer by execution of an agreement of sale and a power of attorney and will.
• That a transfer of immoveable property by way of sale can only be by a deed of conveyance
(sale deed). In the absence of a deed of conveyance (duly stamped and registered as required
by law), no right, title or interest in an immoveable property can be transferred. Any contract
of sale (agreement to sell) which is not a deed of conveyance, will fall short of the
requirements of (Section 54) of the TP Act.
• “We make it clear that our observations are not intended to in any way affect the validity
of sale agreements and powers of attorney executed in genuine transactions.
Our observations regarding `SA/GPA/WILL transactions are not intended to apply to such
bonafide/genuine transactions.”

Indian stamp Act 1989

 The main purpose of this Act is to generate revenue for the Indian Government.
  Stamp duty is a tax levied on any kind of transaction that takes place and is
documented. These may include a sale deed, Lease deed etc.
 Technically it is a tax that is paid for acquiring any document or instrument that
facilitates the creation, transfer, limiting or recording any right or liability.
 After the stamp duty is paid these documents become legally valid and have
evidentiary value in a court of law
 Who is Liable to Pay-
In the absence of any agreement to the contrary, the purchaser/transferee has to pay stamp
duty or in the case of exchange of properties, both parties have to bear stamp duty equally.
• In case of a lease, the lessee is liable
• In the case of an exchange deed, both the parties are liable equally.
• In case of partition deed, all the parties are liable in proportion to
their shares.

Consequences of non-stamping-
Section 33: Examination and impounding of instruments.— Every person having by law
or consent of parties, authority to receive evidence, and every person in charge of a public
office, except an officer of police, before whom any instrument, chargeable, in his opinion,
with duty, is produced or comes in the performance of his functions, shall, if it appears to him
that such instrument is not duly stamped, impound the same.
Section 35: No instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties’ authority to receive evidence, or
shall be acted upon, registered or authenticated by any such person or by any public officer,
unless such instrument is duly stamped.
Section 40 (1)(b)- If he (Collector) is of opinion that such instrument is chargeable with
duty and is not duly stamped, he shall require the payment of the proper duty or the amount.
required to make up the same, together with a penalty of the five rupees; or, if he thinks
fit, [an amount not exceeding] ten times the amount of the proper duty or of the
deficient portion thereof.
Section 45- Power to Revenue authority to refund penalty or excess duty in certain cases.—
• (1) Where any penalty is paid under section 35 or section 40, the Chief Controlling
Revenue- Authority may, upon application in writing made within one year from the date of
the payment, refund such penalty wholly or in part.
• (2) Where, in the opinion of the Chief Controlling Revenue-Authority, stamp-duty more
than that which is legally chargeable has been charged and paid under section 35 or section
40, such authority may, upon application in writing made within three months of the order
charging the same, refund the excess
 Module VIII

Section 52
Transfer of Property pending suit relating thereto- During the pendency of suit in any Court
having authority within the limits of India…of any suit or proceeding which is not collusive
and in which any right to immoveable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party to the suit or proceeding
so as to affect the rights of any other party thereto under any decree or order which may be
made therein, except under the authority of the Court and on such terms as it may impose.

Time period- deemed to commence from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent jurisdiction, and to continue until
the suit or proceeding has been disposed of by a final decree or order and complete
satisfaction or discharge of such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of limitation prescribed for the
execution thereof by any law for the time being in force.

Rationale- Ordinarily, it is true that the judgement of a court binds only the parties and their
privies in representation or estate. But he who purchases during the pendency of an action
is held bound by the judgement that may be made against the person from who he drives
title. The litigating parties are exempted from taking any notice of the title so acquired; and
such purchaser need not be made a party to the action. Where there is a real and fair purchase
without any notice, the rule may operate very hardly. But it is a rule founded upon a great
public policy; for otherwise, alienations made during an action might defeat its whole
purpose, and there would be no end to litigation. And hence arises the maxim pendente lite,
nihil innovetur [During litigation nothing shall be changed]; the effect of which is not to
annul the conveyance but only to refer it subservient to the rights of the parties in the
litigation.

NOTICE OF LIS PENDENS IS NOT REQUIRED

Guruswamy Nadar v. Lakshmi Ammal-lis pendence>specific relief act + notice not

required
Facts- …[T]he question before us in this case is what is the effect of the lis pendens on the
subsequent sale of the same property by the owner to the second purchaser. Section 19 of the
Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient
reason but in the present case, there is no difficulty because the suit was filed on 3.5.1975 for
specific performance of the agreement and the second sale took place on 5.5.1975. Therefore,
it is the admitted position that the second sale was definitely after the filing of the suit in
question. Had that not been the position we would have evaluated the effect of Section 52 of
the Transfer of Property Act. But in the present case, it is more than apparent that the suit was
filed before the second sale of the property. Therefore, the principle of lis pendens will
govern the present case and the second sale cannot have the overriding effect on the
first sale. The principle of lis pendens is still settled principle of law.
The plaintiff while filed the suit for specific performance of the contract was ready and
willing to perform her part of the contract. This argument was though not specifically argued
before the Division Bench, the only question which was argued was whether the principle
of lis pendens will be applicable or Section 19 of the Specific Relief Act will have
overriding effect to which we have already answered. In the present case the principle of
lis pendens will be applicable as the second sale has taken place after the filing of the
suit. Therefore, the view taken by the Division Bench of the High Court is correct and we do
not find any merit in this appeal.

Jayaram Mudaliar v. Ayyaswamy,

Only parties are bound, not involuntary.
The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and
equitable claim but only to subject them to the authority of the Court which is dealing with
the property to which claims are put forward. IT IS TRUE THAT SECTION 52
STRICTLYSPEAKING DOES NOT APPLY TO INVOLUNTARY ALIENATIONS SUCH
AS COURTSALES. BUT IT IS WELL-ESTABLISHED THAT THE PRINCIPLE OF LIS
PENDENS APPLIES TO SUCH ALIENATIONS.
Facts-Plaintiff, as well as the defendant, were all related to each other as family.
Plaintiff/Respondent (Ayyaswami), filed for partition in June 1958 impleading
defendant/appellant (Jayaram) and Munniswami as co-defendants. Jayaram was the son-in-
law of Munniswami.
While this partition suit was still going on, Jayaram purchased some land from
Munniswami under a sale deed and some other land at a public auction to enable
Munniswami to pay off his debts.
Ayyaswami brought a suit against the defendant challenging the validity of the sale of joint
property stating that it was struck by the doctrine of lis pendens in Section 52 of Transfer of
Property Act, 1882 (hereinafter ‘TPA’).

The plaintiff contended that the doctrine of lis pendens is not to be extended to cover
involuntary sales in execution of a decree in mortgage suit where the mortgage was prior to
the institution of the suit in which the plea of lis pendens is taken because the rights of the
purchaser in execution of a mortgage decree date back to the mortgage itself. The HC
described the sale of July 1958 as voluntary alienation, and thereby, placed it on a
different footing from an involuntary sale in execution of a decree in a mortgage suit.

HC held correctly, scope of lis pendens can’t be extended to voluntary sales in any case.
Where a voluntary sale takes place in order to satisfy a decretal amount in a mortgage
suit, the result of such a sale isn’t the same as that of an involuntary sale in the course of
execution proceedings where land is sold to satisfy the decree for mortgage.

Madhukar Nivrutti Jagtap v. Smt Pramilabai Chandulal Parandekar

The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to
a suit but only to render them subservient to the rights of the parties under the decree or order
which may be made in that suit. In other words, its effect is only to make the decree passed
in the suit binding on the transferee, i.e., the subsequent purchaser. Nevertheless, the
transfer remains valid subject, of course, to the result of the suit.
The SC holds that the Sale during the pendency of the suit is not void-ab-initio as per
doctrine of lis pendens. It was held that the effect of Section 52 of Transfer of Property Act
would only be that the said sale transactions in favor of the purchaser(s) shall have no adverse
effect on the rights of the plaintiffs and shall remain subject to the final outcome of the suit in
question.
Third party is bound by court order.

Fraudulent Transfer
Section 53(1): (1) Every transfer of immoveable property made with intent to defeat or
delay the creditors of the transferor shall be voidable at the option of any creditors so
defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in
good faith and for consideration. Nothing in this subsection shall affect any law for the
time being in force relating to insolvency. A suit instituted by a creditor (which term includes
a decree-holder whether he has or has not applied for execution of his decree) to avoid a
transfer on the ground that it has been made with intent to defeat or delay the creditors of the
transferor shall be instituted on behalf of, or for the benefit of all the creditors.

Ingredients-
Transfer of an immovable property.
The transferor owes financial liability to creditors.
The transfer is with intention to defeat or delay creditors.
Such transfer is voidable at the option of the creditors.

Abdul Shukoor v. Arji Papa Rao- transferee good faith could not be established.
Facts- The appellant purchased the suit property under a sale deed executed by
defendant 4 on May 20, 1949. Defendants 3 and 4 had been doing business in partnership,
which, however, was dissolved on March 31, 1949. The deed of dissolution showed that the
partnership owed debts to the extent of 250,000 rupees and that the suit property was allotted
to defendant number 4. The first respondent to whom Money was due from partnership
obtained a decree on June 19, 1951, and had the suit property attached. Learned counsel
for the appellant raised…principle points in support of the appeal…on the facts and
circumstances of the case it had not been established that the sale in favor of the appellant
was vitiated by fraud against creditors falling within Section 53(1) of the transfer of property
act; (3)that in any event, the plaintiff was a purchaser in good faith and for valuable
consideration and was therefore protected even on the basis that the transferor intended, by
alienation, to defraud his creditor…
Issue-The main point that falls to be considered in this appeal is whether the sale deed in
favour of the Appellant Exhibit A-2, is a genuine transaction supported by consideration;
and, if on this point the finding is in favour of the Appellant, the further question that falls to
be determined is whether the suit sale-deed was executed in fraud of creditors and as such
not binding on the first defendant (respondent) and other creditors of defendant (respondents)
2 to 5. If the finding on this issue is that the transaction was in fact in fraud of creditors, the
further question that would arise for consideration is whether the Appellant could claim to be
the transferee in good faith and consideration so as to claim the benefit of the exemption
contained in section 53 of the Transfer of Property Act.
Purpose of the Sale
Ordinarily in the circumstances such as in this case there could only be two alternatives: (1) a
sale in order to pay the creditors out of the proceeds obtained; and (2) a sale in order to
convert immoveable property which was capable of being attached and brought to sale for the
realization of the amounts due to the creditors into cash, which could either be secreted or
used for the vendor’s own purposes…apart from the sale deed not making any provision that
the consideration was to be utilized for the discharge of any particular debts, it is not the case
of the plaintiff-Appellant that there was any such stipulation as to the application of the
money or that without any stipulation thereof the money was so utilized. It would therefore
not be an unreasonable inference to draw from the circumstances of the tale at the juncture at
which it took place that the Vendor’s object was merely to convert this immoveable property
into cash, so that it may not be available to the creditors.
Delay is Sufficient & Defeat Not Mandatory
“…the terms of s. 53(1) are satisfied even if the transfer does not ‘defeat’ but only delays
the creditors. The fact therefore that the entirety of the debtor’s property was not sold cannot
by itself negative the applicability of s. 53(1) unless there is cogent proof that there is other
property left, sufficient in value and of easy availability to render the alienation in question
immaterial for tie creditors. In the present case, as already pointed out, we have no definite
evidence as to the nature and quality of the property life as available to the creditors after the
impugned alienation…the question we have to consider is their cumulative effect and so
viewed the conclusion appears irresistible that the object of the transaction was to put the
property out of the reach of the creditors. The transfer was therefore plainly within the
terms of the 1st Paragraph of Section 53(1) of the transfer of property act and was
voidable at the instance of the 1st defendant who was a decree creditor.”
Bona fide Purchaser for Value? Really?
“The next question is whether the plaintiff is a bonafide purchaser for value so as to be
protected by the second paragraph of section 53(1)…The narrow question is whether the
plaintiff was a transferee in good faith…where fraud on the part of the transferor is
established, I.e., by the terms of paragraph (i) of section 53(1) being satisfied, the burden of
proving that the transferee fell within the exception is upon him and in order to succeed he
must establish that he was not a party to the design of the transferor and that he did not share
the intention with which the transfer had been effected but that he took the sale honestly
believing that the transfer was in ordinary and normal course of business. When once the
conclusion is reached that the transfer was affected with the intent on the part of the
transferor to convert the property into cash so as to defeat or delay his creditors, there cannot
be any doubt on the evidence on record that the plaintiff shared that intent.”
Evidence
One matter which would be of considerable relevance and significance in this connection
would be the enquiries that the plaintiff made before he took the transfer. He no doubt
led evidence to show that he consulted his lawyers about the title of the vendor; but any
attempt at an enquiry of the 4th defendant as to why he was affecting the sale of the only
immoveable property of the firm which was allotted to him under the deed of dissolution is
significantly absent. In the circumstances, it stands to reason that the plaintiff must be fixed
with notice of the design in pursuance of which the transfer was affected. If the object of the
transferor who is heavily indebted was to concert his immoveable property into cash for
keeping it away from his creditors and knowing it the transferee helped him achieve that
purpose it was natural to be held that he shared that intention and was himself a party
to the fraud.
Fraudulent Transfer
In this connection, there is one circumstance which is rather significant. Even when the
plaintiff was fixed with notice that the firm’s business had been running at a loss and had
accumulated a very large volume of debts as disclosed by the recitals in the deed of
dissolution, which was placed in his hand, the purchaser did not insist that the
consideration which he was paying should be utilized for the discharge of at least some
of the debts. We are therefore satisfied that the Plaintiff was not a transferee in good
faith and that the transfer itself was a scheme by the transferor with the knowledge and
concurrence of the transferee to put the property out of the reach of the creditors. The result
therefore would be that the plaintiff suit was liable to be dismissed because made the
defense plea invoking s. 53(1) of the transfer of property act was made out.

Conveys: enters a sale deed. Executes it. stamps and gets it registered.

Procedure for transfer

Immovable property: written agreement + properly executed and attested + registration
requirement (if more than Rs. 100).

Movable property: simple delivery of possession of the property + an intention to convey the
title by the owner to the recipient.

Limitation period for filing suit:

Immovable property: 12 years
Movable property: 3 years

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.
Registration act-
Immovable Property includes land, buildings, hereditary allowances, right 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, or grass

attached to the earth” means-

(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which
it is attached;

Ananda Behera v State of Orissa

The dispute is about fishery rights in the Chilka lake which is situated in what was once the
estate of the Raja of Parikud. The estate vested in the State of Orissa under the Orissa Estates
Abolition Act, 1951, on 24-9-1953 and now ceased to exist in its original form…long before
the vesting of the estate the petitioners had entered into contracts with the expropriator and
had obtained from the latter on payment of heavy sums, licenses for catching and
appropriating all the fish from the fisheries detailed in the schedule give in the accompanying
affidavit and had obtained receipts on payment in accordance with the prevailing
practice…petitioners claim that the transaction were sales of future goods, namely of the fish
in this section of the lake and that as fish is moveable property.
the lake is immoveable property and that it formed part of the Raja’s estate. As such it vested
in the State of Orissa when the notification was issued under the Act and with it vested the
right that all owners of land must bar access to their land and the right to regulate, control and
sell the fisheries on it. If the petitioner's rights are no more than the right to obtain future
goods under the Sale of Goods Act, then that is purely personal right arising out of a contract
to which the State of Orissa is not a party and in, any event a refusal to perform the contract
that gives rise to that right may amount to a breach of contract but cannot be regarded as a
breach of any fundamental right.
Held- What was sold was the right to catch and carry away fish in specific sections of the
lake over a specified future period. That amounts to a license to enter on the land coupled
with a grant to catch and carry away the fish, that is to say, it is a profit a prendre. If a profit
a prendre is regarded as tangible Immovable property, then the "property" in
this case was over Rs. 100 in value. If it is intangible, then a registered instrument would be
necessary whatever the value. The "sales" in this case were oral: there was neither writing nor
registration. That being the case, the transactions passed no title or interest and
accordingly the petitioners have no fundamental right that they can enforce.
profit a prendre-fish.

Shanta bai V State of Bombay

It is not a “transfer of a right to enjoy the immoveable property” itself but a grant of
a right to enter upon the land and take away a part of the produce of the soil from it.
In a lease, one enjoys the property but has no right to take it away.
In a profit a prendre one has a licence to enter on the land, not for the purpose of
enjoying it, but for removing something from it, namely, a part of the produce of the
soil. It is not a “transfer of a right to enjoy the immoveable property” itself but a grant of
a right to enter upon the land and take away a part of the produce of the soil from it.
In a lease, one enjoys the property but has no right to take it away.
In a profit a prendre one has a licence to enter on the land, not for the purpose of
enjoying it, but for removing something from it, namely, a part of the produce of the
soil.

Duncan Industries:
e have noticed that as per the agreement it is
clear what was agreed to be sold is the-entire business of fertilizer on an "as is where is"
basis including the land, building thereon, plant and machinery relating to fertilizer
business- description of which is found in the definition of the term "fertilizer business"
in the agreement itself which has been extracted by us hereinabove. … It is obviously to
reduce the market value of the property the document in question is attempted to be
drafted as a Conveyance Deed regarding the land only.

Attached to what is embedded, Embedded in earth intention-

Intention: It must be a permanent attachment, i.e., intended to be used in perpetuity or
till the life of the attachment.
Degree of annexation
Purpose: Its attachment constitutes a permanent improvement to the thing to which it is
attached
 Module VII

Priority of rights- S48

Doctrine of holding out- S41
Improvements by bona fide holders- S51

Ostensible ownership

S48 read with Sections 47 & 49 of the Registration Act: A registered document shall operate
from the time which it would have commenced to operate if no registration thereof had been
required or made, and not from the time of its registration; [49] Unless the document is
registered it shall not affect the immoveable property concerned nor could the document be
received in evidence.

1. ARUNACHALAM V. SIVAN PERUMAL

Deed of mortgage- not yet registered- subsequent transfer
Since the deed was not yet registered under s48, the right of priority does not come to
existence and if the subsequent deed is registered then that will take precedence.
Harmonious construction- Once the document is registered S49 of the registration has no
relevance and the document takes effect from the date of execution by reason of s 47.
NEMO DAT QUAD NON HABE- Under s 48 of TPA you cannot transfer a title better than
what you have. S48 is very clear that even if the subsequent owner is not aware of the prior
transaction, which took place in good faith, the prior transaction will still take precedence.
Knowledge or no knowledge, subsequent transferee cannot claim any priority against the
prior transferee.
 Week 11- Mortgage
Transfer of proprietary right. Charge is collateral, but mortgage can have a change in
proprietary interest.
Section 58- A mortgage is the transfer of an interest in specific immoveable property for the
purpose of securing the payment of money advanced or to be advanced by way of
loan, an existing or future debt, or the performance of an engagement which may give rise
to pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee, the principal money and
interest of which payment is secured for the time being are called the mortgage-money.
The instrument (if any) by which the transfer is affected is called a mortgage-deed.
Mortgagor borrows money, mortgage lends money.

Transfer of an Interest
• Interest transferred differs based on the kind of mortgage - but is an interest in specific
immovable property
 Relationship with the property – subsists even if the ownership changes hands.

Ingredients: Specific Immovable Property

Ascertainable through description.
Description of the Property clearly stated.
If the Property is not Clearly identified, then it is not a mortgage transaction.

Remedies
Mortgagors suit for redemption
EE suit for foreclosure or sale or suit for money decree.

A minor cannot be mortgagor; the guardian can be mortgagor with permission of court. On
attaining the age of majority, it becomes voidable at the wish of minor if the mortgage was
done on behalf of the minor without the permission of court. Similarly, for a HUF, when
done by karta without the permission of co-parceners.
OR- transferor, EE- transferee

Types-
 Simple mortgage-S 58(b) without delivering possession binds himself personally to
pay the debt can only be done through a court order, cannot be covenanted.
Mortgagee has the right to sell with the permission of the court. Mortgagor has the
property, and the possession of property is not delivered.
Essentials-
Right to cause the property to be sold + Right to sue for money-decree- interests transferred
to EE.
Reserved with OR- Title, possession, right to rents and profits from the property mortgaged.

 Conditional sale- Section 58(c) Where, the mortgagor ostensibly sells the mortgaged
property. Ostensible owner- pay back the money- sale void, retransfer the property.
 When you pay the money-sale deed. In case of default, then there can be direct sale of
the property without going to court, on default of payment of the mortgage-money on
a certain date the sale shall become absolute, If the money is repaid, then the
condition of sale is void. Condition when debt is not paid, the ee can sell the house to
get the loan back. Absolute ownership with OR.
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is
embodied in the document which effects or purports to affect the sale.

 Usufructuary mortgage-Section 58(d): Title stays with OR, EE has only possession,
or expressly or by implication binds himself to deliver possession, debt can be paid
by the profits arising from the property such as the rent. Time period isn’t fixed. EE
has no right to sell, that means he can sue for possession and not sale.
The mortgagee is entitled to either live in the house himself or let it out to tenants, and the
tenants would during the time of the mortgage pay the rent to the mortgagee and not the
mortgagor.
No personal liability – generally no time stipulated, continues until mortgage money is paid
back.
A mortgage has no right to get the property sold.
What is transferred to mortgage? Possession
Remedies of mortgagee? Entitled to retain possession until mortgage money is paid back
+ appropriate rents and profits in lieu of money owed.

 English mortgage- Section 58(e): Transfer is absolute rights when the mortgage
deed is made. This right will be re-transferred if the money is repaid. Here you have
possession at the start and when OR transfers money then the ownership goes to OR.
Absolute ownership is with EE. Double transfer. Right to redemption.
binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged.
property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to
the mortgagor upon payment.
Remedies of mortgagee Sale without court’s intervention as per Section 69 or Sale with
court’s intervention.
What rights remain with the mortgagor? Right to redeem/right to reconveyance of
property.
 Mortgage by deposit of title deed- S 58 (f) Only documents of immovable property
are given to obtain loans. Possession is still with you. Metropolitan cities- Mumbai,
Kolkata, madras.
Ingredients- debt + deposit of title deeds + intention that deeds shall be security for the debt.
Note that this mortgage does not involve transfer of possession / ownership.
Remedies of mortgagee: Suit for sale
  Anomalous mortgage- S 58(g) combination of different types of mortgages.
Remedies of mortgage: Governed by the terms of the contract and where contract is
silent, by the applicable local usage.
Sub-mortgage- EE has the right to further mortgage.
S78 first EE has the right to recover the debt amount along with interest before the second
EE.
 Puisne mortgage- A second or subsequent mortgage of unregistered land of which the
title deeds are retained by a first mortgagee.

Pledge is movable, mortgage is immovable property. Possession is given mandatorily in

pledge, not necessary in mortgage. In lease the

1. Vidhyadar V Manikrao- Conditional mortgage, Intention is of importance when

making a sale.
Facts- Land disputed, takes loan and mortgages property. The EE is saying its sale, the OR is
telling its conditional sale. The OR is trying to repay the amount, but the EE is not taking it.
The OR in meanwhile sells it to M. The EE is disputing the sale to M stating that full
payment is not made by M.
HC supported the EE saying that there is no sales.
SC criticized the HC saying that the intention of the parties is important, part payment is
made which shows interest in the sale. Sale between OR and M is proper sale even if part
payment is made.
Held- Mortgage was valid, mortgage by conditional sale+ continuous efforts were made to
repay the money.

Facts- The document is headed as MORTGAGE BY CONDITIONAL SALE

(KARARKHAREDI). It is mentioned in this deed that the immovable property which was
described in areas and boundaries was being mortgaged by conditional sale in favour of
defendant No. 1 for a sum of Rs. 1500 out of which Rs. 700 were paid at home while Rs. 800
were paid before the Sub-Registrar. There is further stipulation in the deed that the aforesaid
amount of Rs. 1500 would be returned to defendant No. 1 on or before 15th March 1973 and
the property would be reconveyed to defendant No. 2. If it was not done, then defendant No.
1 would become the owner of the property.…The basic principle is that the form of
transaction is not the final test, and the true test is the intention of the parties in
entering into the transaction. If the intention of the parties was that the transfer was by
way of security, it would be a mortgage.

The contents of the document have already been considered above which indicate that
defendant No. 2 had executed a mortgage by conditional sale in favour of defendant No. 1.
He had promised to pay back Rs. 1500 to him by a particular date failing which the document
was to be treated as a sale deed. The intention of the parties is reflected in the contents of the
document which is described as a mortgage by conditional sale. In the body of the document,
the mortgage money has also been specified. Having regard to the circumstances of this
case as also the fact that the condition of repurchase is contained in the same document
by which the mortgage was created in favour of defendant No. 1, the deed in question
cannot but be treated as a mortgage by conditional sale. This is also the finding of the Courts
below it was held that…part payment of consideration by vendee itself proved the intention
to pay the remaining amount of sale price. The real test is the intention of the parties. In
order to constitute a ‘sale’ the parties must intend to transfer the ownership of the
property and they must intend that the price would be paid either in present or in
future. The intention is to be gathered from the recital in the sale deed, conduct of the parties
and the evidence on record. Applying these principles to the instant case, it will be seen that
defendant No. 2 executed a sale deed in favour of the plaintiff, presented it for registration,
admitted its execution before the sub-registrar before whom remaining part of the sale
consideration was paid and, thereafter, the document was registered. The additional
circumstances are that when the plaintiff instituted a suit on the basis of his title based on the
aforesaid sale deed, defendant No. 2 who was the vendor, admitted in his written statement,
the whole case set out by the plaintiff and further admitted in the witness box that he had
executed a sale deed in favour of the plaintiff and had also received full amount of
consideration. These facts clearly establish that a complete and formidable sale deed was
executed by defendant no. 2 in favour of the plaintiff and the title in the property passed to
plaintiff.

Conclusion- So far as the contention of the learned Counsel for defendant No. 1 that the
mortgage money was not paid within the time stipulated in the document and, therefore,
the transaction, even if it was a mortgage, became an absolute sale, is concerned, the
finding of the Courts below is that this money was tendered to defendant No. 1 who
refused to accept it. Defendant No. 2 had thus performed his part of the agreement and had
offered the amount to defendant No. 1 so that the property may be reconveyed to him but
defendant No. 1 refused to accept the money. He, therefore, cannot complain of any
default in not paying the amount in question within the time stipulated in the deed.
Since there was no default on the part of defendant No. 2, the document would not
convert itself into a sale deed and would remain a mortgage deed. The suit for
redemption was, therefore, properly filed by the plaintiff who was the assignee of
defendant No. 2

Rights of Redemption and Right of Foreclosure

Section 60- Right to redemption- after the principal money gets due and you repay the
money, right of OR to get the possession back. Unless EE can prove it through court order or
acts of parties, here you cannot payback, seizing the right to property.
Equity of redemption comes from judiciary; a law is provided for the same and is interpreted
by judiciary. In India right to redemption and equity of redemption are treated equally. The
right to redemption is a statutory right.
Extinguishment of right to redeem- right to payback/ redeem
1. Foreclosure- bank order sale. After this you cannot redeem.
2. Act of parties
3. Expiration of limitation period- 30 years
Getting what is yours. Money due- bay back- Redeem.
Essential- principal money is due, reasonable notice before payment of money.
The right conferred by this section is called a right to redeem and a suit to enforce it is
called a suit for redemption.
 A mortgagor’s right to redeem is a statutory right.
 The right to redeem cannot be defeated even by agreement.
  The right of redemption cannot fail even if the the mortgagor fails to pay debt on due
date.
 Only a suit for foreclosure results in extinguishing this right.
 Limitation period is 30 years.
 When does the right of redemption arise? After the principal amount becomes due.
Time period immaterial for the mortgagor? Only till the mortgagee gets a decree for
foreclosure.

Clog on redemption
Any condition that unduly and unlawfully restricts the OR’ cannot be extinguished or
restricted by any contract between the parties.
Santley V Wilde- any provision inserted to prevent redemption on payment or performance
of debt or obligation for which obligation for which security was given is called a fetters or
clogs on equity of redemption and is void.

S62- Right to usufructuary mortgagor to recover possession.

Principles of Indian Law of Mortgages

1. A mortgage in essence is a borrowing transaction, and must be viewed as such unless
The contrary is proved.
2. A mortgagor is a person who is in need of money, while the mortgagee is a party who
has the money and it is presumed that the conditions that prevent the mortgagor to redeem
his property or penalise him are inserted in the contract at the behest of the mortgagee;
3. Any condition that penalizes the mortgagor in the event of non-payment of loan
would be termed as a clog on his right of redemption and would be void. Such conditions
can validly be ignored by the mortgagor and would not be enforced by any court; and
4. A condition that the property would be forfeited in the event of default in payment of
money is a penalty.
Long term mortgages

2. Seth Ganga Dhar V Shankar Lal- Long-term Mortgages and Clog on Right of
Redemption
Facts- mortgage created by purshottam in favour of Dhanurpal. The mortgage was
usufuctory. It also provided that on redemption of the prior mortgage, the possession of the
shop would be taken over and retained by the mortgagee, Dhanrupmal, who would
appropriate its rent in lieu of interest on the money advanced by him and the possession of
the other property covered by the prior mortgage, being a share in a Kachery would be made
over to the mortgagor, Purshottamdas. The mortgagee, Dhanrupmal, duly redeemed the
earlier mortgage and, went into possession of the shop while possession of the Kacheri was
delivered to the mortgagor. On April 12, 1939, Dhanrupmal assigned his rights under the
mortgage to Motilal who died later, and whose estate is now represented by his sons, who are
the other respondents in this appeal. 'The estate of Purshottamdas, the original mortgagor, is
now represented by his son, the appellant. On January 2, 1947, the appellant filed the suit in
the Court. The suit was contested by the sons of Motilal, the assignee of the mortgage, who
are the only respondents appearing in this appeal and whom we shall hence, hereafter refer to
as the respondents. They said that the suit was premature as under the mortgage contract
there was no right of redemption for eighty-five years after the date of the mortgage,
that is to say, till August 1, 1984.
Deed- "I or my heirs will not be entitled to redeem the property for a period of 85 years.
After the expiry of 85 years, we shall redeem it within a period of six months. In case we do
not redeem within a period of six months, then after the expiry of the stipulated period, I, my
heirs, and legal representatives shall have no claim over the mortgaged property, and the
mortgagee shall have no claim to get the mortgage money and the lagat (i. e., repairs)
expenses that may be due at the time of default. In such case this very deed will be deemed
to be a sale deed. There will be no need to execute a fresh sale deed. The expenses spent in
repairs and new constructions will be paid along with the mortgage money at the time of
redemption according to account produced by the mortgagee.
The rule against clogs
On the equity of redemption is that a mortgage shall always be redeemable and a mortgagor's
right to redeem shall neither be taken away nor be limited by any contract between the
parties…. The principle is this: a mortgage is a conveyance of land or an assignment of
chattels as a security for the payment of a debt or the discharge of some other obligation for
which it is given…. The security is redeemable on the payment or discharge of such debt
or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the
law. Any provision inserted to prevent redemption on payment or performance of the
debt or obligation for which the security was given is what is meant by a clog or fetter
on the equity of redemption and is therefore void. It follows from this, that "once a
mortgage always a mortgage ". The right of redemption, therefore, cannot be taken
away. The Courts will ignore any contract the effect of which is to deprive the
mortgagor of his right to redeem the mortgage.
Application- In the present case the parties have agreed that the right to redeem will arise
eighty-five years after the date of the mortgage…The appellant says that he should be
relieved from this bargain that he has made. This is the contention that has to be examined.
The rule against clogs on the equity of redemption no doubt involves that the Courts
have the power to relieve a party from his bargain. If he has agreed to forfeit wholly his
right to redeem in certain circumstances, that agreement will be avoided…The reason then
justifying the Court's power to relieve a mortgagor from the effects of his bargain is its want
of conscience. Putting it in more familiar language the Court's jurisdiction to relieve a
mortgagor from his bargain depends on whether it was obtained by taking advantage of
any difficulty or embarrassment that he might have been in when he borrowed the moneys
on the mortgage. Was the mortgagor oppressed? Was he imposed upon? If he was, then
he may be entitled to relief. We then have to see if there was anything unconscionable in
the agreement that the mortgage would not be redeemed for eighty-five years. Is it
oppressive? Was he forced to agree to it because of his difficulties? Now this question is
essentially one of fact and has to be decided on the circumstances of each case.

Is the 85 years’ time period long enough to be oppressive. However, the suit was brought
after 47 years after the date of motgage hence not oppressive. + he has other properties
mortgaged with him showing there was no coercion.
Held- Bargain is fair one and parties are at an equal footing and period of 85 years is not a
hard bargain and was not forced upon.
It seems to us impossible that if the term was oppressive, that was not realized much earlier,
and the suit brought within a short time of the mortgage… The learned Judicial
Commissioner felt that the respondents' contention that the suit had been brought as the
price of landed property had gone up after the war, was justified. We are not prepared to say
that he was wrong in this view…We cannot lose sight of the fact that the mortgaged shop and
the area of the land on which it stood were very small. It was not possible to spend a large
sum on repairs or construction there. That, to our mind, indicates that the bargain had
been freely made…There was nothing else to which our attention was directed as
showing that the bargain was hard. We, therefore, think that the bargain was a
reasonable one and the eighty-five-year term of the mortgage should be enforced. We
then concluded that the suit was premature and' must fail.
Factors-
 Period
 Other circumstances surrounding the facts.
 Financial situation
 Duress, undue influence

3. Pomal Kanji Govindji v. Vrajlal Karsandas Purohit- payment of interest not

periodically but at the nd+ construction and deconstruction of building at this
inflationary stage.
Facts- Mortgage – 20th April, 1943 – for 20,000 + 10,000 koris (Int)- long term of 99 years
for redemption of mortgage - mortgagees were given liberty to spend any amount they liked
for the improvement of the suit property - also permitted to rebuild the entire property.
sons of the mortgagor filed a suit for redemption after 29 years – lower courts decreed it.
Issue – whether there is a clog on redemption?
Contentions on behalf of the plaintiffs --- Counterargument
Economic Conditions of the Father – residential house put on mortgage --- family of
advocates.
Both the principal and the interest (.5% per month) to be paid after 99 years
Permission to build/rebuild --- custom of long term mortgages.
The deed
The terms of the mortgage provided that the right of redemption would arise only after the
expiry of 99 years from the date of execution of the mortgage. Since the possession was
delivered to the mortgagee, a condition in the deed also empowered him to demolish the
existing structures on the property and rebuild the new ones and re-reimburse the
entire cost of construction from the mortgagors. In addition, the entire amount was to be
paid to the mortgagee only at the end of the term, and no periodical payment was permissible.
The mortgagors filed a suit for redemption and for recovery of possession before 99 years.
Applying Ganga dhar
Whether or not in a particular transaction there is a clog on the equity of redemption, depends
primarily upon (1) the period of redemption, (2) the circumstances under which the mortgage
was created, (3) the economic and financial position of the mortgagor, (4)and his relationship
vis-a-vis him and the mortgagee, (5)the economic and social conditions in a particular
country at a particular point of time, (6) custom, if any, prevalent in the community or the
society in which the transaction takes place, (7) and the totality of the circumstances
under which a mortgage is created, namely, (7.1) circumstances of the parties, (7.2) the time,
(7.3) the situation, (7.4) the clauses for redemption either for payment of interest or any other
sum, (7.5) the obligations of the mortgage to construct or repair or maintain the mortgaged
property in cases of usufructuary mortgage to manage as a matter of prudent management,
these factors must be co-related to each other and viewed in a comprehensive conspectus in
the background of the facts and the circumstances of each case, to determine whether these
are clogs on equity of redemption.
Can duration of lease be a clog?
Though, long-term by itself as the period for redemption, is not necessarily a clog on equity
but in the changing circumstances of inflation and phenomenal increase in the prices of real
estates, in this age of population-explosion and consciousness and need for habitat, long-
term, very long-term, taken with other relevant factors, would create a presumption that it is a
clog on equity of redemption. If that is the position then keeping in view the financial and
economic conditions of the mortgagor, the clause obliging the payment of interest even
in case of usufructuary mortgage not periodically but at a time of ultimate reduction
imposing a burden on the mortgagor to redeem, the clauses permitting construction and
reconstruction of the building in this inflationary age and debiting the mortgagor with
an obligation to pay for the same as a ground for redemption, would amount to clog on
equity.

Judgement- Freedom of contract is permissible provided it does not lead to taking

advantage of oppressed or depressed people. The law must transform itself to the social
awareness. Poverty should not be unduly permitted to curtail one's right to borrow
money on the grounds of justice, equity and good conscience on just terms. If it does, it is
bad. Whether it does or does not, must, however, depend upon the facts and circumstances of
each case… In the facts and the circumstances- and in view of the long period for
redemption, the provision for interest @ 1/2% per annum payable on the principal amount at
the end of the long period, the clause regarding the repairs etc., and the mortgagor's financial
condition, all these suggest that there was clog on equity…In that view of the matter, we are
of the opinion that the decision of the High Court as well as the Courts below that there
existed clog on the equity of redemption in case of these mortgages, is correct and proper,
and we hold so accordingly.

Rights of the Mortgagee [Section 67]

 Right to forclosure or sale, S67-
In the absence of a contract to the contrary, the mortgagee has at any time after
the mortgage-money has become due to him, and before a decree has been made for the
redemption of the mortgaged property, or the mortgage-money has been paid or deposited,
A right to obtain from the Court a decree, That the mortgagor shall be absolutely barred of
his right to redeem the property; or A decree that the property be sold.

Section 68: Right to Sue for Mortgage Money

Section 69: Power of Sale
No such power shall be exercised unless and until— notice in writing requiring payment of
the principal money has been served on the mortgagor, or on one of several mortgagors, and
default has been made in payment of the principal money, or of part thereof, for three
months after such service;

Duties of Mortgagee in Possession (Section 76)

1. A Duty To Manage The Property As A Person Of Ordinary Prudence;
2. To Collect The Rents And Profits Thereof;
3. To Pay The Government Revenue And All Other Charges Of A Public Nature;
4. To Make Such Necessary Repairs Of The Property As He Can Pay For Out Of The Rents
And Profits Thereof;
5. Not To Commit Any Act Which Is Destructive Or Permanently Injurious To The Property;
6. To Apply Insurance Money In Reinstating The Property;
7. To Keep Clear, Full And Accurate Accounts Of All Sums Received And Spent By Him As
Mortgagee;
8. To Apply Rents And Profits In Discharge Of Interest After Making Deductions; And
9. To Account For Gross Receipts.
Rights Against Other Mortgagee
Section 78 Priority
Section 81 Marshalling- equal rights to the subsequent owner but not at the expense of
the prior owner.
Essentials
1. Common Debtor
2. No Prejudice to prior mortgagee or third party’s interest.
3. No Agreement contrary
Right of subrogation s92- Legal Subrogation types-
Puisne mortgagee
◦ A mortgages ‘X’ to ‘B’ for Rs. 20,000 and later, mortgages ‘X’ for Rs. 15000 with C.
Surety
Co-mortgagor
◦ A and B have equal interest in property ‘X’. X is mortgaged to ‘C’ for Rs. 20,000 to be
shared equally by A&B. Later A on his own paid the mortgage money. A is now entitled to
the right of subrogation, and he stands in his ‘shoes’ for the excess paid.
Purchaser of the Equity for Redemption
◦ X mortgaged his property first to ‘A’ and later to ‘B’. ‘X’ has a right of redemption. If ‘C’
pays off the first mortgagee [i.e. A], ‘C’ takes up the position of ‘A’ under the right of
subrogation.

1. Chaganlal v. Anantaraman AIR 1961 Mad 415- interest is included in the

mortgage money+ conditional
Mortgagee is entitled to treat the interest due on a mortgage as a charge on the property. The
interest would be included in the mortgage money on payment of which alone the mortgagor
would be entitled to obtain redemption of the mortgage.

Facts- 20th March 1930 - Mortgage – Rs. 2000 – recover interest from rent, obligation to pay
if outstanding
1952 – 2nd respondent sold the mortgaged property to 1st respondent directing him to redeem
Offered Rs. 2000 – appellant refused – demanded interest moneys also.
Issue- What is mortgage money?
"We have mortgaged with possession to you the house belonging to Nos. 1 and 2 of us and to
our enjoyment and have received from you in the presence of the Sub Registrar Rs. 2000 and
for the interest on this amount at Rs. 1-12-0 per cent per mensem, you shall yourself let out
the house for rent and adjust the same in satisfaction of the interest. If the rent falls
short or no rent is at all yielded, the amount represents the interest due we shall pay to
you or to your order before the 20th of the month and take receipt. We shall ourselves
pay the quit rent, Union taxes etc, for the property and also carry out necessary repairs
therefore at our own expense. If we fail to pay the taxes or carry out the repairs and thereby
you are obliged to pay the rents, taxes or the repairs charges, such amount also shall be paid
by us with interest at the above said rate. When we pay the principal amount, you shall at that
time cancel this document and deliver the house to our possession. If we fail to pay you when
you demand the amount due according to this document, you can recover the said amount
from us and from the property.....described below and from our other properties."
Held- It is true that in one part of the document it is provided that when the mortgagors pay
the principal amount, the document shall be cancelled, and the mortgaged property delivered
to the mortgagors. Reading the entire document, it is obvious that at the time of the execution
of the mortgage, the parties presumably contemplated that the interest would be
recovered from the rent fetched by the mortgaged property and, even if there was any
deficiency, it would be periodically made good by the mortgagors.
…We hold that the construction placed on the material provisions of the mortgage deed by
the learned District Judge was right and the learned Judge was wrong in holding that there
was a contract contrary to the general rule that interest payable under a mortgage deed
would also be charged to the mortgaged property and would be included in the
mortgage money on payment of which alone the mortgagor would be entitled to obtain
redemption of the mortgage.

Charge
Where immoveable property of one person is by act of parties or operation of law
made security for the 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 the provisions hereinbefore contained which apply to a simple mortgage shall, so
far as may be, apply to such charge.
What is the basic ingredient? – intention to create a charge.
Charge by act of parties and operation of law.

If a charge does not amount to a mortgage, then what is the difference between the two?
• In a charge there is no transfer of an interest in property but creation of a right of
payment out of the property specified.
A mortgage transfers an interest in immovable property while a charge does not.
A charge does not bind a subsequent transferee without notice while a mortgage does.
A charge can be created by both, act of parties and the court while mortgage can only be
created by act of parties.
 Module X
Lease, License

How is the lease made? Section 107 TPA-

A lease of immoveable property from year to year, or for any term exceeding one year or
reserving a yearly rent, can be made only by a registered instrument.
All other leases of immoveable property may be made either by a registered instrument or
by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument
or, where there are more instruments than one, each such instrument shall be executed by
both the lessor and the lessee.

Section 105 TPA- A lease of immoveable property is a transfer of a right to enjoy such
property, made for a certain time, express or implied, or in perpetuity, in consideration of a
price paid or promised, or of money, a share of crops, service or 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.
Lessor, lessee, premium and rent defined. — The transferor is called the lessor, the transferee
is called the lessee, the price is called the premium, and the money, share, service or other
thing to be so rendered is called the rent.
Consideration- Rent+ Premium, only rent, only premium. Lease without consideration –
invalid- Rent must be certain or ascertainable – revision clause.

Section 52 Indian Easements Act, 1882- Where one person grants to another, or to a definite
number of other persons, a right to do, or continue to do, in or upon the immovable
property of the grantor, something which would, in the absence of such right, be unlawful,
and such right does not amount to an easement or an interest in the property.

2. Sivayogeswara Cotton Press v. M. Panchaksharappa, AIR 1962 SC 413

Facts- 1914: A lease was signed between two parties and the terms of the lease were as follows- For
the first 20 years, the lessee would pay Rs 350 per year; If the lessee removed his factory from the land
before 20 years, he would still have to pay the amount and would retain the right to retain possession.
Thereafter, the lessee would be free to continue the lease subject to a payment for Rs 400 per year for
the next 10 years and Rs 500 thereafter. Lessor would not have the right to recover possession if the
lessee is following the terms of the lease. After the expiry of 20 years, the inheritors of the lessor
served a notice on the lessee asking him to vacate the land. They argued, after expiry of 20 years, the
lease became tenancy at will.
Terms: 1st 20 years: Rent Rs. 350; then the option to continue at Rs. 400/year for 10 years and
post that 500/ year.
You shall always be at full liberty to give up the said land the said road and terminate this lease at any
time you may desire so to do after the 1st October, 1934….But I agree and bind myself not to call
upon you at any time to give up the possession of the said land and the said road as long as you may
desire to keep the same for your purposes observing the terms of this agreement.
• Liberty to construct buildings and tear down existing ones at will. ("to erect, as many buildings,
godowns, factories, bungalows and other structures etc.." as also to pull down and re-erect structures or
to make any altera- tions, as desired by him.”)
• Sub-let or re-let at your will.
• Binding on the heirs and successors in interest of the lessor and the lessee.
Issue: what is the nature of the lease deed? was the lease a permanent lease or did become a tenancy at
will after the expiry of 20 years?
Lessee was entitled to build permanent structures and buildings on the land. Terms of lease do not
suggest that the lessor and lessee intended the lease to be valid only during their lifetimes. However,
lessee was given the option of not continuing with the lease after the expiry of 20 years.
“It is always open to a lessee of whatever description to surrender his leasehold interest to the
lessor, by mutual consent. It is not necessary in law that the mutual consent should be at the time
the surrender is being made.”
A stipulation that after 20 years, the lessee can surrender his interest cannot be construed in
derogation of the permanency of the tenure if the parties agree or intend to create a permanent
tenure- Merely because the lessee was entitled to give up possession whenever he wanted, does
not weaken the presumption in favour of permanent tenancy. Where the land is let out for
building purposes without a fixed period, the presumption is that it was intended to create a
permanent tenancy. In this case the lessor cannot demand that the lessee give up possession.

The task therefore in the present case is to determine what the parties really intended to do. Where the
land is let out for building purposes without a fixed period, the presumption is that it was
intended to create a permanent tenancy. That the lease was not intended to be for the life only of the
grantee is clear not only from the facts already noticed, namely, that it was meant for building
purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the
tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee
when he was making sure of the term of at least twenty years. He must have known that if the
factory worked for twenty years, it would go on forever, according to human calculations.
Though there was liberty reserved for the lessee or his successor to give up the leasehold at any time
after October 1, 1934, no corresponding right was reserved to the lessor. Thus, there is no room for
the controversy which has occupied a large portion of the judgments of the courts below, that
reservation of the right to the lessee to surrender possession at any time, imported a corresponding right
to the lessor to call upon the lessee to give up possession. It was an advantage specifically reserved to
the lessee without any corresponding benefit to the lessor. It is equally clear that the lease was heritable
and assignable. Thus, there is no difficulty in holding that there is no room for contention, on the terms
of the lease, that the parties intended that after the lapse of the first 20 years of the lease, the tenancy
will be merely a tenancy at will.
It was clearly tenancy for an indefinite period, at least.

Judgement-
We are in complete agreement with the following observations of the court made in that case, which
in our opinion apply to the facts and circumstances of the case in hand "The forms in which tenancy
rights are created in India are not uniform and they do not conform to precedents known to
conveyancing ; sometimes the words used are not precise and it is not easy to understand from the said
words the intention of the parties in executing the documents. Leases are often executed without legal
assistance; and the aid that the parties obtain from professional scribes does not always contribute to
making the terms clear or precise. The nature of the tenancy created by any document must
nevertheless be determined by construing the document. If the tenancy is for a building purpose,
prima facie, it may be arguable that it is intended for the lifetime of the lessee or may in certain cases
be even a permanent lease. Prima facie, such a lease is not intended to be tenancy at will. But whether
it is a tenancy for life or a permanent…tenancy must ultimately depend upon the terms of the
contract itself. And in construing the terms of 'such contracts the courts must look at the substance
of the Matter and decide what the parties really intended to do."

Intention of the parties-

In this connection, it is pertinent to' re-emphasize the following facts : the lessee with a view to raises a
substantial structure by way of factory premises, residential quarters and other appurtenant buildings,
took a lease of extensive land, about 4-1/2 acres in area ; those lands, at the time of the transaction in
question, were being used for agricultural purposes with the permission of the Government who were
the ultimate owners. Its character could be changed with the permission of the Government on payment
of certain prescribed fees and charges. The parties could not be certain of obtaining the necessary
Government sanction to the conversion of the tenancy from agricultural to building purposes.
Therefore, the stipulation was clearly made that in the event of the Government refusing to sanction the
conversion, the lease will be deemed to have come to an end. If the permission were forthcoming, and
if the lessee put up substantial structures, it would be in his interest to continue in possession of the
premises demised by the lease if he found it worth his while, but the lessee may have apprehended that
circumstances might supervene necessitating his walking out of the venture. He therefore had to make
provision in the lease entitling him to surrender the lease to avoid the liability for payment of future
rents. But the lessor on his part would be equally anxious to conserve his rights and therefore 'he
'insisted upon the payment of rent for at least 20 years irrespective of the consideration whether 'the
tenant continued to occupy the premises. Thereafter, the lessor stipulated for enhanced rent of Rs.;.
400/- per annum for the first ten years after the initial period of twenty years aforesaid, and Rs. 500/-
thereafter for all times that the lessee continued to occupy the premises. It could not therefore have
been in the contemplation of the parties that the lease should be only for the life of the grantee or for an
indefinite period which could be terminated at the will of the lessor. To ensure that the lessor, should
not eject the lessee, at his sweet will, the term was specifically included in the lease that it will not be
open to the lessor to do so. It must, therefore, be held that a stipulation entitling the lessee to
surrender possession of the premises of his will is not wholly inconsistent with the tenancy being
permanent.

The presumption in favour of the transaction creating a permanent lease cannot be held to have been
rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice.
That being so, it must be held that the lease deed evidences an intention to create a permanent
lease. In view of this finding, it is not necessary to advert to the other contentions raised on behalf
of the appellants.

DURATION OF LEASE & NOTICE

Duration in absence of written contract or local usage – section 106

Overview of rent control acts-

“It is well-known that after the second world war to give protection to a tenant against unnecessary,
undue or unreasonable eviction and in the matter of being exploited for payment of exorbitant rent all
States in India at one time or the other passed Building and Rent Control Acts. The Rent Act is
intended to restrict the rights which the landlord possessed either for charging excessive rents or
for evicting tenants. Amendments in them were brought about from time to time. The language and
the scheme of the Acts varied and differed from State to State…But in all social legislations meant for
the protection of the needy, not necessarily the so-called weaker section of the society as is commonly
and popularly called, there is appreciable inroad on the freedom of contract and a person becomes a
tenant of a landlord even against his wishes on the allotment of a particular premises to him by the
authority concerned…
  Enacted to prevent landlords from charging exorbitant rents.
 Enacted to prevent arbitrary eviction of tenants by landlords.
 Since urban housing is a State Subject, every state has own rent control act.
 Tenancy is inheritable: for a limited period e.g. 5 years under Karnataka Rent Control Act,
1999
 Stated grounds of eviction of tenant: every statute prescribes grounds on which tenant can be
evicted e.g. nonpayment of rent, sub-letting, using property for purpose other than agreed,
building is unfit for habitation, no occupancy for more than 6 months, etc.
 Standard Rent: the upper limit of rent usually cannot exceed 10 per cent per annum of the total
cost of construction and market value of the land comprised in the premises.

3. Dhanapal Chettiar v Yesodai Ammal (1979 SC): Notice requirement under s106
Facts- Landlady gave a notice to the tenant to vacate the property on the ground that she needed the
property for personal necessity.
Rent Controller – no genuine requirement, HC – Requirement, but notice u/S 106 missing.
• SC said the question is not whether the notice was valid under Sec106 but whether is required in the
first place.
Issue: Whether to get an order for eviction of a tenant under the State Rent Control Act is it necessary
to give notice under Sec 106 of TPA?
The question as to whether in order to get a decree or order for eviction against a tenant under any State
Rent Control Act it is necessary to give a notice under Section 106 of the Transfer of Property Act. Is
there a dual requirement to serve notices? First under the state act and then under the TP Act?
Whether such a notice was at all necessary to be given.
Reason- Under TPA, a notice of eviction entitles the landlord to evict the tenant and regain
possession. Under Rent Acts, a notice is a not mere ‘surplusage’. Tenant continues to be in
possession of the property even after the notice and tenancy actually ends on passing of eviction
order or decree and actual eviction of the tenant.
Held- Under Sec 106, a contractual tenancy is put to an end by serving a valid notice. No grounds
for eviction need to be established or evidenced. But, under various State Rent Acts a tenant can be
evicted only on the grounds mentioned therein.
“That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient to
found proceeding based on the determination of the lease by issue of notice in accordance with Sec 106
of TPA.
If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of
relief, such notice will have to be given. Or, it may be, that a landlord will be well advised by way of
abundant precaution and to lend additional support to his case, to give a notice to his tenant intimating
that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But
that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the
technical requirements of section 106 of the Transfer of Property Act.
But it is not correct to say that section 106 of the Transfer of Property Act merely providing for
termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra
protection against eviction. The purpose of this provision is merely to terminate the contract
which the overriding Rent Acts do not permit to be terminated.

4. Shanti Devi v. Amal Kumar AIR 1981 SC 1550: Applicability of S106

Appellant agreed to lease a cinema to the defendant for 4 years with a covenant of two renewals of
three years each. Lease was signed in March 1956 and was to be effective from the date the defendant
secured a license (presumably license to operate the cinema). Originally, it was agreed that the
defendant shall secure the license by April 1956; but he actually secured the license in 1960. Appellant
in April 1970 sent a notice to the defendant claiming that the tenancy has expired and in May 1970
filed a suit for ejectment of the defendant.
• High Court held that service of valid notice under Sec 106 of TPA had not been proved, thus suit for
ejecting the tenant was not maintainable.
SC: notice under Sec 106 only necessary if it was a month-on-month lease. Notice it is not necessary
for lease of a definite time.
Defendant obtained licence in 1960 and the lease began from that date which was executed by a
registered instrument. The intrinsic nature of the lease was that it was for a specified time period
parties cannot be their conduct alter the rights and obligations flowing from the lease deed. Thus, the
lease expired at the end of 10 years as per Sec 111(a). Thus, service of notice under Sec 106 was not
required and tenant became a trespasser on expiry of the lease period. Tenancy laws not applicable
since they outside the geographical jurisdiction.
The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of
Section 111(a) of the Transfer of Property Act. That being so, the service of a notice under
Section 106 of the Transfer of Property Act was not necessary.

5. Laxmidas Bapudas v. Rudravva 2001 (2) SCC 409

In 1907, lessors granted non-agricultural land on lease to build factory for 99 years. 1986, lessors
served a notice on lessees asking them to vacate the property on the ground that: No rent was paid from
1985-86. Lessors required the property for their bona fide use. Lessors filed an application under
Karnataka Rent Control Act 1961 on the ground that the premises were bona fide required by them to
start their own business.
Applicability of Karnataka Rent Control Act to a subsisting fixed term contractual lease, specifically
Section 21. Section 21 provided that: Notwithstanding anything contained in any other law no order
for recovery of possession in favour of landlord shall be made by a court. Proviso to Section 21
stated that order of recovery in favour of landlord can made only one of the following grounds-
Effect of the Rent Control Act on fixed term leases:
On expiry of a fixed term lease, tenant will be liable to be evicted only on the grounds enumerated in
Sec 21 of the Act. Any grounds for eviction contained in the lease which go beyond that provided in
the Act shall be inoperative.
During the lease, tenant can be evicted only if:
• The ground of eviction is present in the Rent Act; AND
• The ground is mentioned in lease as triggering forfeiture of lease.
Held- it has been held that a proceeding for eviction under Section 21 of the Karnataka Rent
Control Act would be maintainable notwithstanding the fact that the lease under which the
tenant enjoys possession is an unexpired term lease. Section 21 of the Karnataka Rent Act
provides that notwithstanding anything to the contrary contained in any contract, no order for
eviction of a tenant shall be made by the court or any other authority. The proviso to sub-section
(1) of Section 21 of the Karnataka Rent Act limits the grounds on which a landlord can seek
eviction of a tenant. Therefore, notice under Section 106 of the Transfer of Property Act loses
significance. The effect of the non obstante clause contained under Section 21 of the Karnataka
Rent Act on the fixed-term contractual lease may be explained as follows: On expiry of period of
the fixed-term lease, the tenant would be liable for eviction only on the grounds as enumerated in
clauses (a) to (p) of sub-section (1) of Section 21 of the Act.
The effect of the Dhanapal Chettiar case only considered the effect of Rent act on tenancy under
contract vis-a-vis S. 106 of ToPA. The State Rent Act cannot override a contractual tenancy in
totality, and the provisions of the contract will continue to prevail unless the contrary is expressly
stated in the Rent Act.

Lease V License

the primary distinction between a lease and a licence is that the lease is a “transfer of a right” in a
specific immovable property, whereas, licence is a bare permission. Also, a licencee is not entitled to
notice to quit before eviction.
Other differences may be:
 A lease is both transferable and heritable; however, a licence is not.
 A licence comes to an end with the death of either the grantor or the grantee, since it is a
personal covenant, but a lease does not.
 A grantor may withdraw a licence, anytime at his pleasure; however, a lease can end only in
accordance with the terms stipulated in the lease deed.
 A lease is unaffected by the act of transfer of ownership of the property. It continues and the
subsequent owner remains subject to such lease with respect to enjoyment and possession of
the property, whereas, in the case of a license, if the property is sold to a third party, it comes
to an end immediately.
 A lease confers the lessee with a right to protect the possession of the property so conferred;
however, license does not confer any interest in the property, therefore, no such right exists
with the licensee.
 A lessee in possession of the property is entitled to any improvements or accessions made to
the property, while a licensee is not.

6. Associated Hotels of India v RN Kapoor (1959 SC):

Facts- RN Kapoor and Appellants signed a document termed ‘license deed.’ According to the
terms of the deed, two rooms in Hotel Imperial were put in possession of the respondent to
conduct his business of hair dressing.
Conditions- Respondent was supposed to keep the premises in good condition, pay for
electricity and could not alter premises without the permission of appellants. Respondent
could be evicted without if he did not pay the amount agreed for using the premises.
Respondent could transfer his interest to another person with the permission of the
appellant.
That the licensee shall not make any alterations in the premises without the prior consent in
writing from the licensor.
Why is the distinction important- Because, if it was a lease, the application for
standardization of rent under the provisions of the Rent Control Act, could be entertained by
the court, but if it was a license, there would be no question of fixation of standard rent.
Ratio-
 The substance of the document must be preferred to its form.
 The real test is the intention of the parties - whether they intended to create a lease or
a license.
 If a document creates interest in the property, it is lease; if it only permits another
to make use of the property while legal possession continues with the owner it is a
license.
 If a party gets exclusive possession of the property, prima facie it is a tenant though
circumstances may negate the intention of creating a lease.
Judged by the said tests, it is not possible to hold that the document is one of license.
Certainly, it does not confer only a bare personal privilege on the respondent to make use of
the rooms. It puts him in exclusive possession of them, untrammeled by the control and
free from the directions of the appellants. The covenants are those that are usually found or
expected to be included in a lease deed. The right of the respondent to transfer his interest
under the document, although with the consent of the appellants, is destructive of any theory
of licence. The intention of the parties is clearly manifest, and the clever phraseology used or
the ingenuity of the document-writer hardly conceals the real intent. I, therefore, hold that
under the document there was transfer of a right to enjoy the two rooms, and, therefore, it
created a tenancy in favour of the respondent.
(Outcome: Rent Control Act not applicable due to an exception clause for ‘hotel rooms’ –
Appeal allowed)
An owner of a property enters into a lease thereof, but to avoid the rigours of Rent Control
legislation, calls it as a licence agreement. Though such a lease is captioned as a `licence
agreement', the terms thereof show that it is in essence, a lease. Such a licence agreement
which puts the licensee in exclusive possession of the premises, untrammeled by any control,
and free from any directions from the licensor (instead of conferring only a bare personal
privilege to use the premises) will be a lease, even if described as licence. For example, if the
exclusive possession of an apartment or a flat or a shop is delivered by the owner for a
monthly consideration without retaining any manner of control, it will be a lease
irrespective of whether the arrangement is called by the owner as a `lease', or `licence'. As far
as the person who is let into exclusive possession, the quality and nature of his rights in
respect of the premises will be that of a lease or a tenant and not that of a licensee. Obviously
such a `licensee' cannot be `evicted' or `dispossessed' or prevented from using the premises
without initiating legal action in accordance with law.

7. Bharat Petroleum Corporation v Chembur Service Station (2011 SC):

Facts- Appellants had land on lease on which they installed dispensing pumps and storage
facilities for petrol and diesel. Also constructed other structures for sale and business of their
products. Appellant and Respondent signed a ‘licence’ agreement whereafter respondent
functioned as dealer of the appellant. On a surprise inspection appellant found that one of the
dispensing units was measuring inaccurately (March 2007). Appellant issued a showcase
notice asking why respondent’s dealership should not be cancelled for making illegal gains.
Appellant in March 2009 terminated the dealership agreement and informed the respondent
that it shall have no right to use the premises for any purpose whatsoever or to sell any
petroleum products. The appellant also stopped any further supply of petroleum products to
the retail outlet. The court examined the terms of agreement between the appellant and the
respondent-
Respondent could enter the premises only for the limited purpose of using the storage
facilities, petrol tanks or sale of petroleum products.
• Respondent could not sell any other products or products belonging to a different company.
• Respondent could not charge a price different from the one determined by the appellant.
• Respondent could not enter the premises if the license to sell appellant’s products was
terminated. Permission to enter the premises and use facilities was only to sell appellant’s
products.
If the license to use the facilities and sell appellant’s products is terminated, there is no
question of the respondent entering or remaining in the outlet premises at all. License to enter
the premises is incidental to the license to sell the products.
 In other words, the employer/principal continues to be in possession and occupation and
the employee/agent is merely a licensee who is permitted to enter the premises for the
limited purpose of selling the goods of the employer/principle.

The following propositions may, therefore, be taken as well-established : (1) To

ascertain whether a document creates a licence or lease, the substance of the document
must be preferred to the form; (2) the real test is the intention of the parties - whether
they intended to create a lease or a licence; (3) if the document creates an interest in the
property, it is a lease; but, if it only permits another to make use of the property, of
which the legal possession continues with the owner, it is a licence; and (4) if under the
document a party gets exclusive possession of the property, prima facie, he is considered
to be a tenant; but circumstances may be established which negative the intention to
create a lease

RIGHTS AND LIABILITIES OF LESSOR SEC 108-

Section 108 Duties of Lessor
• Disclosure: material defect not discoverable with ordinary care (108 A (a))
• Possession - (108 A (b))
• Covenant against interruption of enjoyment of lease - (108 A (c))
Rights of Lessee
• Right to enjoy accretions to the property - (108 B (d))
• Right to Revoke Lease in the Event of Destruction of Property by fire, etc. - (108 B (e))
• Right to Repair Property and Claim Costs in the Event of Lessor’s Neglect - (108 B (f))
 Right to Make Payments Obligatory on Lessor - (108 B (g))
• Right to Remove Fixtures - (108 B (h))
• Right to the benefit of crops grown by him - (108 B (i))
• Right to Assign the Lease - (108 B (j))
Liabilities of Lessee
• Duty of Disclosure
• Obligation to Pay Rent
• Duty of Maintaining the Property
• Duty to give notice of any encroachment on the Property

Mall with many shops- in spite of the restrictions, controls and directions of the licensor, and
in spite of the grant being described as licence, the transaction will be a lease or tenancy
and the licensee cannot be dispossessed or evicted except by recourse of law.
In a shopping complex or in a mall the owner gives a licence to a person to use a counter to
sell his goods in consideration of a fee. The access is controlled by the licensor and there is
no exclusive use of any specific space by the licensee. At the end of the day, the licensee
can close the counter. The space around the counter is visited and used by customers to the
mall and not exclusively by the customers of the licensee. In such a case, if the licence is
terminated, the licensor can effectively prevent the licensee from entering upon his premises
and the licensee will have no right to use the counter except to remove his belongings. In
such a licence it may not be necessary for the licensor to sue the licensee for `possession' or
`eviction'.- the amount of control by the licensee

A much narrower version of a licence is where an exhibitor of cinematograph films, or a

theatre owner permits a `customer' or `guest' to visit an entertainment hall to view and enjoy a
movie or a show for the price of a ticket. The licensee is permitted to occupy a seat in the
theatre exclusively for the period of the show. Or a cloakroom with toilet facilities in a public
building permits a visitor to use the toilet/closet facilities on payment of a fee. The licensee is
permitted to use the toilet/closet exclusively to relieve himself. In such cases, the licence is
for a specific purpose and for a specific period. The licensee has no other right to enter the
premises, nor the right to continue to occupy the seat in the theatre or use the toilet/closet
continuously. Such a licensee can be forcibly removed by the licensor if the licensee
overstays or continues to occupy the seat beyond the show, or refuses to leave the cloakroom.
It is not necessary for the licensor to sue the licensee.

Doctrine of election-
Profess to transfer property-has no right- benefit confer to the owner of the property- owner
decides to confirm or dissent- if denied, benefit relinquish-goes back to transferee as if not
disposed.
Disappointed transferee
Gratuitous transfer- without consideration- transferor dies or incapable before election- og
owner will have to give the disappointed transferee the same amount of the property that they
got.
Mode of election- express implied.
Presumption that he has knowingly accepted the benefit.
Two year enjoyment, impossibility, one year his intention to confirm or dissent.

Transfer by person other than owner- 38, 41, 43

Section 38- power of alienation is limited only based on certain circumstances- alleging the
existence of these circumstances- transferee using reasonable care in good faith. Transfer
exists.
 Karta- legal necessity, benefit of estate, performance of religious and charitable duties
 Guardian- minor necessity.
When they claim that this circumstance exists, the transferee for consideration should in good
faith believe that they exist then law presumes that the transfer is valis in the eyes of law.
Hanooman prasad-
Infant heir has estate- manager has a limited and qualified power- in case of need or for
benefit of the estate. Lenders are bound to inquire into the necessities should be bona fide.
The burden of proof is on the transferee. Alienation is voidable at the option of the minors or
co-parceners.

Section 39- third person has the right to maintenance from the profits of immovable property,
and the property is transferred- right may be enforced against the transferee if he has notice
thereof or if it is gratuitous- if not then cannot get maintenance from transferee.

Section 41- transfer by ostensible owner- not real owner but fulfills these condition-
 Consent by the real owner to be ostensible owner.
  EE has purchased for consideration.
 EE has taken reasonable care to ascertain that the person is ostensible owner acted in
good faith.
Then cannot be voidable just because OR was not real owner.
Happening in benami transactions after which ostensible owner became real owner.
Section 6a wrt section 43.
Based on doctrine of estoppel as mentioned in Section 43- subsequently acquires interest.
Section 6a wrt section 43- Jumma masjid- grand son had a chance to get propert- sold it to
someone else- did not get property till then- then the gf dies and they get property by jumma
masjid claims that it was gifted to them by the widow. However 43 is exception to 6a will
apply here.