T ra nsfer fo r B en

ef it o f U b
-:::::::::=~~
; !s te n ! o f p er ~~n~o~r~n~
p et u it y per iod: P~e!rs~o~n
~ - - ~6~
The perpetuity p ~
· h h er io d , th at is to say th
during whic . t e p ro p er ty may .
f any person w ho is . b e r.endered, . e .maximum
o , o r o f the surv--iv -=~~-!ii,1_1na1tenable . P en.o d
.
c11,bo are alive a t h or o is the rr i
t -=---- f a h ,
" . e m o m en t when the n y num er o f persoi ne
;nterest begin .
s to 9 p e ra te , p lu s d ee d h. h
- w s
a p er io o f 18 y tcfr creates the
1-1a

when such d es ig n at
• d
ears om the ti.me
-
ed p er so n dies.
property m ay ~ s f . F o r ex am p le the
e r 1t to a living p- - f
d\!lth to B , a li v in erson, A, for li, fe, owner o a
g p er so n , for life and after his
bis unborn so n w h , and o n or before
e n h e attains the B 's death to
alive for 10 years; age o f 18. Suppo
B for 15 y ea rs an se A remains
existence ju st b e fo d the -µnborn son
re th e d e a th o f B comes into
get ,the property u . As the unborn so
n ti l h e attains th n would not
property w o u ld rem e age o f 18, it fo
ain_tied u p f o ~ e llows that the
ars. :
E xtent o f perpetuit c- ,;·
yp ~riod : P~sitio.n in
India:
-
Life o r a n y n u m b
e r o f lives in b ei
minority p e ri o d o f n g + peri'oll- o f ges
th e u n b o rn benef tation +
iciary.
E.g.: A ss u m e th
a t A , B , C are th
enjoyed the_ p ro p e life estate ·holq
e rt y . . In th a t A ers who
enjoyed for 2 0 y e enjoyed for 15 y
a rs a n d C en jo y ed e~rs, th e n B
unborn p er so n cam to r 10 years and died then
e- in to existence.
Now peipetuity period is: the
A B C M.P.
15+20 +10+18
= 6 3 y e a rs .
In this .case if th e v
e st in g o f a n ·abso
person ·is _more th a lute interest to an
unborn
n 63 y ea rs , th at is
against p e rp e tu it y '. v o id o n the basis
h
o f the 'rule
•
,

E.g.: A, B , C a
re th e li fe e~tate
Property. In th a t A h o ld er s w h o enjo
e n jo y e d 15 years yed th :
C also e n jo y e d , th en B enjoyed
20 years an
1 0 y e a rs a t th e e n d o f Which
a n d cl im e in to e the unborn perso
x is t ce--.150 d ay n
Now the p e rp e tu it y s aft~r th e death
p e ri o d is o f C.
62 . Lectures on Transfer of Property Act

A + B + C_ + P.G + M.P.
15 + 20 + 10 + 150 days+ 18 years
Here the perpetuity period is 63 years and 150 days. So
vesting of property is more than 63 years and 150 days. It is void.'
English Law:
Life or lives in being + period of gestation + minority period.
If we apply this rule to the above example, the perpetuify
period is: •
15 + 20 + 10 + 21 = 66 years

15 + 20 + 10 + 280 days +.21 = 66-280

Difference between English Law and Indian Law
English Law -• Indian Law

1. Minority period is 21 years.

:!ts ;;;:;;;;:-
l. It is 18 years.
9'!$ 4 -- .....

2. Period of g~station is a
gross peJiocj.
2. It.should be actual period.
l•
-
3. Property need not be given 3. It s.hould be given
absolutely t~ unbom.,person.
4.
---
absolutely.
~-
He must come into
4. The unborn person must
come into existence within existence before the death
. 2·1 years of the death of last of the last life estate holder.
life estate holder. • • -

Exceptions to the rule against perpetuity: The rule against

perpetuity allows the following exceptions.
(i) Public Charitable Trust: The rule does not apply in case
of transfer for the benefit of the public i.e. advancement of religion,
knowle~ge, commerce, health and safety.
 fo r B en ef it o f U n~ o r~ Person 63
Transfer
p ti o n : T his ru le do es · not offend the
(ii) Coven~nts o f Red
em
o n in J! 10 itga ge . .
convenants o f redem pti -,

ts : It do es n o t ap p ly w hen the transfer

(iii) Personal Agreemen do es n o t af fe ct th1.e interest
obligatio n an d
creates only a personal
in the property. for Pre-
m p tio n :·· A g re em en ts
Pre-e
(iv) Agreement for e la n d si n ce .th ·e ag reement
ption to purc h as
emption gives first as o st in th e p ro p erty . So this rule
st any in te re
to purchase does not ca -e m ption.
e ag reem en t o r pre
does not apply to th
e P a y m en t o f th e Debts of the
(v) Provision for th th at th e in co me of the
irection is giv en
Transferor: When a d th e p ay m en t o f de bt s an d it does
ulated for
property shall be accum au se th e p er so n in d eb ted can
totally bec
not Jie up the property
y time. ._
discharge the debt at an b le to the contracts
: It is al so no t ap p lica
(vi) Perpetual Lease
of perpetual renewal o
f leases.
U M U L A T IO N 'O R ' DIRECTION
J. RULE AGAINST
ACC
I FOR ACCUMULATIO
(Section 17]
N

~- n f nrincip~
 LECTURE - VII
CONDITIONS PRECEDENT AND CONDITION
SUBSEQUENT S
[Conditional Transfer : Sections 2S-34]

Every person, who is competent to contract (unjer Secti

.
of the Indian Contract Act, 1872) is also competent/en
rl 0n l}
titled
transfer his/her property. When he wants to transfer the prop to
upon fulfillment of ll condition/obligation, such transfer is ca~
'Conditional Transfer'. The conditional transfer may take place~
two ways, namely: c.~v"(,\..d-'1 "'- l.,, ~,bv -- - 9q_ •.2.r
1. Conditi~n Precedent; and ( 2~: -~ ~:_) _
2. Condition subsequent. 'r .i ' 4

Sections 25 to 34 of the Tra~sfer of Property Act, 1882 lay

down the provisions relating to Con~itional Transfer. Section 25
provides for the general rule of all kinds of cqnditional transfers.
According to Section 25, where the transfer of property is dependent
upon a condition, the fulfillment of which is impo~sible .or forbidden
by law, such transfer is. declared void. Sections 26 and 27 deal
with the condition p.recedent and Sections 28 to 34 deal with the
condition subsequent.
~1. CONDITION PRECEDENT
[Sections 25-27)
Condi tion precedent means, a condition to be performed before
--. - ... -
an interest arises.- (Wnen a property is transferr~d, .
right/interest tn
property gets transferred). A condition precedent is .on·e, which the
vesting of a right until the happening of a specified event, i.e.
condition: Sections 25 to 27 of the Transfer of Property Act, 1882
deal with Condition Precedent. .
Section 25 lays. down the general rule that, transfer takes
effect,..if;co"iiditi<i'o precedent is satisfied. If the condition precedent
.
IS-

74
 Conditions Precedent
and Conditt
onss b
, (a) impossible; or u sequent

\..
{pf forbidden by law; or
I"'

j o-) of such a nature that 1·r

• • ' Penni
provisions of any law· or ~tted Would d "
• ' -- the
d) fr_audulent; or
(e) ~volves or implies injury tQ: the e
another; or P rson or property of
,)f) the court regards it as immoral or
. . . . opposed to public policy
Such transfer 1s vo1d/mvalid. Section 25
.. - runs as follows:
An interest created on a transfer of property d d
. f: . .f an ependent
upon a conditton at1s 1 . the fulfill~ent of the condition is
impossible, or is forbidden by law, or is ot such .a nature that, if
pennitted, it would defeat the provisions of any la'Y, 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.
mustrations:
( l) A lets a farm to B on condition that he shall walk a
'# hundred miles in an hour. The lease is void.
ci) "A gives Rs.500 to B on condition that he shall.marry A's
daughter c: At the date of the transfer C was dead. The
transfer is void.
(3) A transfers Rs.500 to Bon condition that she shall murder
C. The transfer is void.
. C •f he will desert her
\ (4) A transfers Rs.500 to his niece ' 1 8
husband. The transfer is void.
. ·r he will desert her
(5) A transfers Rs.500 to his n~ece C, 1 8
\ husband. The transfer is v01d. - ti to
dent· Section 26 re ers
Fulfillment of condition P ~ • ·th transfer to another
conditional transfer to one person coupled W1 . 26 the cond'tion1
d' to Sectton ' . 'th
on failure of prior disposition. Accor ~ng tiallY c~heq W1 •

-
is deemed to have been fulfilled if it 18
 ,
r
~76!._~~u~Jl~L~ec~tu~res~o~n:..T:.r:.;•::n::s.:.:fe~sr_o_f~P_r_o~p_er_t__y_A_c_t_ _~---""-- Condiflons Precedent an
Section 26.... runs as follows:
.,..,---..
.,. . should neglect to do so, to C. B d:
Where the terms of a transfer of property
.
impose a condftion
. h in favour of C ta.lees effect.
to be fulfilled before a person can take an interest in _t pro})erty,
(b) A transfers property to }
the condition shall be deemed to have been fulfilled 1f It has been
in his lifetime, transfer to B tha1
substantially complied with. A and his wife perish together, u
mustrations: · impossible to prove that she die
favour ofB does not take effect
(a)/A transfers Rs.5,000to Bon conditio~ that he sha~l marry
V. with the consent of C, D and E. E tbes. B marnes with (P.$.: Sections 25 and 26
the consent ofC and D. Bis deemed to have fulfilled the precedent).
condition. Characteristics of Condit
,
fh\/'A transfers Rs.5,000 to B on condition tha~ he s~all marry characteristic features of the cone
' 7 ~th the consent_ of C, D and E. B marnes without the ~ e condition shall be fu
consent ~f C, D and E, but obtains their consent after the is vested in the transfer(
marriage. B has not fulfilled the condition.
the estate does not vest
Section 27_ relates .to conditional trallsfer to one person oouplaj
with tratfsrer to another on failure of prior disposition. It runs as
- ' the ~ondition is ful~le1
follows:
'
~ t h e condition shQuld n
25;
Where, on a transfer of property, an interest therein is created
in favour of one person, and by the same transaction an ulterior '1-~v)/the condition is deemei
disposition of the same interest is made in favour of another,- if the • complied ~th under S
prior disposition under the transfer ~hall fail, the µlterior disposition 2. CONDITIO.
shall take effect upon the failure of the ptioi: disposition, although [Secti«
the failure may not have occurred in the manner ~ontemplated by
the transferor. · A condition ~l!bseque!!_t!~
-~ - - - It 1
But, where the intention of the parties to the transaction is the Qm2lle.tring_.9J an e.xen~
that the ulterior disposition shall take effect only in the event of the has to be fulfilled after an mter
prior disposition failing in a particular manner the ulterior property. Sections 28 to 34 b
disposition s~II not take effect unless the prior disp~sition fails in condition subsequent.
that manner. 'th cond
Section 28 deals WI -
mustrations: . . I on bappet
transfer cond1t1ona •
ns as foUows:
even.t It ru
(a~ A transfers Rs.500 to B on condition that he shall execute '
On a transfer of property
a certam lease within three months after A's death, and,ifiie erson with the
accrue. to any P
 Condidons Precedent and
Conditions Sub
sequent
b()Uld neglect to do so, to C. B dies . , . 77
s talc tn A s hfeti
in favour of C es effect. me. The diSJ>osition
(b) A transfers property to his wife b .
1
in bis lifetime, transfer to B that which h:\ ndcase she should die
• h
A and bis•
wt1e
·£>,.
pens together, under circumsta
a transferred
. to her.
nces which~ 1·t
onpossible to prove that sh e died before him. The di . . .e _
favour of B does not take effect. sposition m

(P.S.: Sections 25 and 26 are more important for condition

l'@edent). - .
Characteristics of Condition .frecedent: Following are the
characteristic features of the condition precedent. -
{>Yihe condition shall be fulfilled before the property/estimate
'- is vested in the transferee; -==--=-=---
the estate does not vest in the transferee until and unless,
.. the condition is fulfilled;
,JjiiYthe condition should not ~e declared v~i~ under Section
25·,
the condition is Q.eemed to be fulf'!lled, if i!,is substantially
co!!}Plied with under Section 26. •
---
2. CONDITION SUBSEQUENT
[Sections 28-34]

• A_ conditi~n SJ;lbsequent is one, which destroys or ~vests~~n

the ~ru>ening_ o_J -an onditJon which
event. It literally means, a c '
-.A.-- - - -
f
O 8
has to be fulfilled after an interest is created upon tbe transl t
property. Sections 28 to 34 lay down the pr ovisions re atmg 0

condition subsequent. .
. .. 1• •tation. It re1•£'..ers to ultenor
Section 28 deals with cond1ttonal inn . of specified
- __ - - hapenmg
transfer conditional on happening or not P
event. It runs as follows: _ be created to 0
. st therein maY a y
On a transfer of property an tntere dd d that in case
to any person with the con·d"ti
1 0 n supera e
 78 Lectures on Transfer of Property Act

specified uncertain event shall happen such interest shall pass t

another person, or that in case a specified uncertain event shaIJ no~
happen such interest shall pass to another person. In each case the
dispositions are subject to the rules ~ontained in Sections 10, 12
21, 22, 23, 24, 25 and 27. '

7mter est in the property transferred may be created in favour

of any person with a condition that in case a spe~ified •uncertain
event shall not happen .such interest sha~l pass to another person.
For instance, A transfers Rs.5000 to B with the condition that B
joins the bar within three years from the date of the transfer and in
case he does not join within the said.period, the property is to go to
C. In case B does not join the bar, C gets Rs.5000. In this
illustration the transfer, in favour of C is an ulterior transfer, and it
takes effect on the failure of the prior transfer. As regarcis the prior
interest, the condition is a condition subsequent b1;1t as regards the
ulterior disposition, it is a condition precedent.
The ulterior transfer (in the above illustration the transfer to
C) is subject to the rules contained in Sections 10, 12, 21, 22, 23,
2~, 25 and 27.
mustrations:
>
' 1.,1\ transfers his farm to B and then to C without power of
alienation. The restriction is void under Section 10.
, 2. A transfers his land to B, and if B becomes insolvent, to C.
The condition is void under Section 12. .,
,.,.
3. A transfers his field to B and in case of B's death without
issue to C. C's interest is contingent (Section 21.).
4. A transfers his field to B and on· B·' s death to such children
of C who attain .the age of 18. All the children of C who are alive
at B's death have an interest as laid down in Section 22.
5. A transfers his field to B for life and on B's death to C at
the age of 18. C does attain the age of 18 until 6 months after B's
death. C's interest fails under Section 23.
 ' l"'\l t. { • ,., / /

conditions Prec eden t and Conditions Subsequent 79

- - - : -traJlsfers his field to Band on B's death witho ut issue , to
6· n- c or the
survi•vor o f them. The sons of C who survi ve
sons of
the entitled to --
it unde r Section 24.
8 beeorne
,,,A •transfers his field to B for life on the cond ition that B
7
\. C and then after B's death to D. The trans fer fails in both
111urders
under Section 25.
cases
Section 29 deals with fulfillment of cond ition subse quen t. It
runs as follows:
An ulterior disposition of the kind contem2lated by the last
section cann ot take effec t unles s the cond ition is strict ly
fulfilled.
mustrations:
'\.)d field is transferred to A with a provi so that if he marr ied
·thout the consent of B, C and D, the field will go to E. D dies.
Even if A married witho ut the conse nt of B and C, the gift to E
does not take effect.
/A field is transferred to A with a provi so that if he marr ied
without the consent of B, the field shall go to C. A marr ies with
the consent of B. The gift to C does not take effec t beca use the
condition once fulfilled is ~ischarged.
. transfers Rs.500 to B to be paid to him on his .att& ning
his majority or marrying with a proviso that, if B dies a mino r or
marries without C's consent, the Rs.50 0 shall go to D. B marr ies
when only 17 years of age without C's consent; The trans fer to D
takes effect. Here, there has been a clear breac h of the cond ition
and therefore B is divested of his interest.
-4

d" ~e~tion 30 deals with the effec t of the invalidity of the ulteri or
ispos1 tion on th . one d .
i~ e pnor an 1t provt.des that the pnor
. d1spo
. s1tion
..
Ult~not affect
. ed b Y the 1nvah
• •d1ty
• of the ulteri
. ~uor dis 0s1. . or disposition. An
.
it is d P tion may be 1nvah.d because the cond ition on whic h
•, ependent 1s• illega
• l, too vague, impossible, too remote, oppo sed
y

Transfer of Act
Property --
Lectures on..
~ :. :. :. :: .: :. -. -- -- -- -- -,
80
.! !. .. -- -~ ~
•n Section 13 or is otherwise inoperative lt
l la1"d do
•
wn 1
to ther ue
reads as follows:
po sition is no t va lid, the prior disposition is
. If the ulterior dis
not affected by it. if she
mustration: A transfers a
farm to B ·for her life, and,
ing
t de sert he r hu sb an d to C. B is entitled to the farm dur
does no
been inserted.
her·life as if no condition had
als wi th a co nd ition subsequent, which......._ _nat_es
termi
Section 31 de
ert s in the gr an tor . Se ction Jl provides f;
an interest and rev cified
n ·that tra ns fer sh all ce ase to have effect in case spe
conditio
en t ha pp en s or do es no t ha ppen. It runs as follo~s: •
uncertain ev
pr ov ision s of Se ction 12, on a transfer of
Subject to the n
an inter est the re in m ay be created with the conditio
propert y
tha t it shall ce as e to ex ist in case a specified uncertain
_superadded t sha11 not
t sh all ha pp en , or in ca se a specified uncertain even
even
happen. -.J
mustrations:
n.Sfers a fan n to B fo r his life, with a proviso tha~ in
• tra
ts do wn a ce rtain wo od, the transfer shall cease to have
case B cu
wn the wo od. He lo se s his life interest in the
•
any effect. B ctits do · l . •
farm.
if B shall not go to
--:.j
A ~s fe ~s
ee
a fa
ye
nn
ar s
to
af
B,
ter
-p
th e
ro vi
da
de
te
d that~
of the transfer his interest
~g la nd wi thm thr
s~ I~ ce as e. B do es no t go to England within the term
m the. farm
prescnbed. H1s interest in the &-. arm
_ 1c

. •.
-------
ceases.
..
Section 32 speaks ••about m 1on subsequent.
• '
va Jtd co nd 1t
According "o secti.on 32 a d" . hi
.
ch would be void under
a.i
. . ' co n ttton , w
Section 95 as a condition preced t .
•
uE !!! It en is vo id under Section 32 as a
condition ~ubseq
1

• runs as follows:
- • ·st
bi orde f th at ·a co nd •t··
1 ion that .. terest sha11 cease to ext
- an in
may be valid, it 1•8 necessary tha •
lates be
• t the event to which it re
 Conditions Precedent and Conditions s b
~-------- --------= .::=:=:a :.:se~q~ ue~n~t- ~&~l
one which could legally constitute the condition of the creation of
an interest.
Section 32 ~rovides a test for finding what conditions
subsequent are vahd. Following are the conditions void-
(i) ConditiQn void for~certain~ .
(ii) Condition opposed to public policy.
. -...
(iii) Con?ition in!estrai~ ~~age.
>
(iv) Condition, w~ich is imm!)ral.
(v) Condition, which is impossible for performance.
....,-,........._
- '

(vi) Condition as to Residence, where th~e js uncerlainty as

---
to 1t.
e -- ~ - .......- - . -. ._ C .. - - ~

Section 33 provides that, when no time is fixed for the

performance of a condition subsequent, it is broken not only when
the person does an act, which renders the performance impossible,
but also, when he does an act, by which the performance is definitely
postponed. Section 33 runs as follows:
Where, on a transfer of property, an interest therein is created
subject •to a condition that the person taking it shall perform a
certain act, but no time is specified for the performance of the act,
the condition is broken when he _!enders.. impossible, permanently
or for an indefinite period, the performance of the act._
Finally Section 34 speaks about the time for performance
specified. It lays down that if the performance of a condit!on
whether subsequent or precedent, is prevented by a person interested
in its non-fulfillment, the delay is executed and the condition is
discharged.
Section 34 is based on two maxims: fraud dolus nemin
------- .....
•~trocinari d~bent (fraud and deceit o~ghU}ot to benefit any person)-
and, ~lus commodum capere potest de injuria sua propria (no one
can take advantage of his own wrong).
 82 L~t ure s on Transfer of Property Act
--- --- --~
This Section covers two classes of cases:
1. Where a time is specified for the performance of the
act
constituting the condition of the transfer and the fulfillme
nt of th
condition is prevented by the fraud of the person·directly
benefi~
by the non-fulfillment of the condition.
2. Where no time is specified for the perfonnance of such
act
and the fulfillment of the condition is rendered impossi
ble or is
indefinitely posq,oned by the fraud of the person intereste
d in the
non-fulfillment of the condition.
,

Section 34 runs as follows:

Where an act is to be performed by a person either
as a
condition to· be fulfilled before an interest created on a trans
fer -of
property is enjoyed by him, or as a condition on the non-fulfi
llment
of whjch the .tnterest is t~ pass from him to another pers
on, and a
time is specified fQr the performance of ~he act, if such perfo
rmance
within the specified time is prevented by the fraud of a pers
on who
would be directly benefited by non-fulfillment of the
condition,
such furth er time shall as against him be allowed for performing
• '
the act as shall be teg~isite to make up for the dela •

~ caused by
such fraud. But if rio time is specified for the performance
of the
act, then, if its perfonnance is by the fraud of a person inter
ested in
the non-fulfillment of the condition rendered imp
ossible or
indefmitely postponed, the condition shall as against him
be deemed
to have been fulfilled.
ruustration: A testator directed that if any of the
female
members of his family lived for more than three mon
ths at any
place other than a holy place they would forfeit their inte
rest under
his will. The forfeiture was not incurred when they were
·forcihl}'
removed by their relation. . -
_fa isti nct ion between Condition Precedent and
Condition
Subsequent: Following are the notable-i)oints of disti
nction between
Condition Precedent and Condition Subsequent.
 conditions Precedent and Conditions Sub
::;;~;~~~~~~~-:_-:_-:_-:_-:_~~~==-~~~:::s~e_q~u~e-~n_t:-:_-:_~
- - Condition ~recedent
In condition precedent, the
1. estate is not vested in the
~tee until the condition
i~rmecVfulfilled.
2. It does not require strict
compliance._ Substantial
~ompliance is enough/
sufficient.
3. If the performance of the
condition precedent is
impossible, both the
condition precedent and the
estate limited upon~ it are
void.
-e,,, ----
4. If the condition precedent
is illegal; the property
limited upon it,-fails.
By the performance of the
condition an estate not
previously vesteq, becomes
vested. -
--------
83
Conditio~Subsequent -
1. In condition subsequent,
the estate vests in the
~antee immediately and
remains in the grantee till
the condition is broken.
2. It requires strict
ccompliance or strict
fulfillment of the condition
.
1s necessary.
3. If the performance is
impossible, the condition
subsequent fails, and the
previous estate becomes
indefeasible.
4. If condition subsequent is
jllegal, the previous estate
becomes indefeasible and
-the condition is ignored.
5. By the performance Qf the
condition~ an estate
1
previously vested becomes
divesteJL,
 Transfer of} ·
ID.movable Property
S. DOCTRINE
tts
OF LIS PENDENS
1,Vi \,, ,1, 1 • J,,.
- 0-:: .
, (Section S2] '- ~"? y,
' .v-oectt~n 52 of the Transfer of Pro J OY)tf 9Uc, • • I
\J
Jf'
the Doctrine of Lis Pendens, S t· per
ty Act, 1882 deals with
,
Property pending suit relating the • ec ton 52 relates t T
reto It O
/ .. . . : runs as follows: ransfer of
. .~u rin g the
. pendenc_y in any Court-havi·•ng authon.
hnnts of India excluding the State of J· ty •thin
. • ' WI the
established beyond suc h lim its by the
am mu and Ka shm ir
. . . . •• Ce ntr 1Government of any or
sui t or proceeding wh a
ich 1s not collusive and • h' h
.
1n w 1c any ng . ht to
immovable property is directly_and __
specific~lly in question, the
property cannot be transferred or otherw
ise dealt with by any party
to the suit or proceedings so as
to affect the rights of any other
party thereto under any decree or
order which may be made therein,
~xcept under the authority of the Co
urt and on such tenns as it may
impose.
•
l, Explanation: For the purposes of thi
s section, the pendency
of a suit or proceeding shall be dee
med to commence from the date
of ~he pre~1!_~tion of the 2lai)!t or
~e_ins_!i~i~n ofthe groce~clihg
in a Court of competent jurisdiction
, and to continue until the suit
or proceedmghas·been dispo;~d of
by a final decree or order and
complete satisfaction or discharge
of such decree or order has been
obtained, or has become unobtaina
ble by reason of the ,expiration
of any period of limitation prescribe
d for the execution thereof by
any law for the time being in force.
Amendment: Section 52 has been am
~- ended by Section 14 of
the Transfer of froperty (Amendm - ---
- ent)-Act 20 of 1929. Th
---prQ
_peruiencyJtas been substitutea for
the-words '~i ve - s~ceu.tiwo.onrd,
which gave rise to a great conflict
of decisions. The words..:_anl
~uit or urQC.e.eding§ which is not col
lusiy_e' be~n substituted
for the words 'a contentious suit or
P!2£eed1ng which also led to
conflicting decisi~~s onthe questioi
as to when a suit or proceed~ng
beca~e contentious. To remove this
latter conflict, an explanation
is also added fixing the time during
which a suit is deemed to be
pending for the purposes of the section
.

6
 116 Lectures on Transfer of Property Act

~eaning: ·The expression 'Lis' means "l_itigation" (or an~

or a,~s!'it};_ 'P9l'W\s' m~ans •~dip( (~on~nuing). Lis pendena
_collecti~~ly means 'pe3d1ng_su1t or an •
- ~~cording to the doctrine, 'where a suit is pending before the
competent court, in which any right to property is (directly or
indirectly or specifically) in question, the property cannot be
transferred or dealt with by any party to-the suit except under the
authority by Court or such terms as it may impose'.
. In simple words, when title of property is in question before a
court of competent jurisdiction, such property should not be
transferred •by way of sale or gift or lease or mortgage. If transferred,
.. , ' -·
such transfer is- invalid. and the transferee has. no claim.
- . '

ExampJes:
. / - •
.__ (J) 'A' says that he is the o~er of property 'X'. 'B' also
claims to be the owner of the same property 'X' and sued 'A'.
When the matter (i.e. dispute as to title of the property) is pending
before the Court, 'A' cannot transfer the property by sale or gift
etc. If so s_uch transfer is not valid.
• \ftl!(A has some property. He mortgaged that property to Bin
' \ .
997. B filed a case against A in the competent court for the
recovery of the money in March 1999. During the pendency of the
case, A sold the said property to C. The sale transaction between
A and Chas been prohibited under the 'Doctrine of Lis Pendens',
as it affects B's right.
.• ~ X has a house. He enters into a contract to sell the house
to Y'for one lakh, and receive ten thousand rupees as an advance.
Within the stipulated date X does ·not come forward to register it.
Y-files a case against X for specific ·performance of the contract.
While the.t
case is pending befare the Court X sells the-house to Z
and regis ' ,•
ers it• 1n
• favour of Z. X's subsequent • 18•
sale transaction
void as it is lis pendens.
- Transfer of Immovable Property

Bellamy vs. Sabine (1857) 1 Dec & J. 5661 _ In thi s case,

d , E, "'
117

h . t~ sue
'~F_'_;:be:.;.i::.:n~g_a~:;:-e 1or selling an estate to 'S'. During
- f th • 'S' transferred it to 'B ', who had notice
- pendency o _e suit ,
held in
(knowledge) of the suit. The court through Turner, L.J.
favour of 'F'. Turner, L.J. observed-
a
' Wb enJ litigatiQn is pending between a plai ntiff and
ssity of
d e f ~as to -the rights to the p~c ular estate, the nece
binding
mankind requires, tha!_ the decision of the Court sbil1 oe
not only .9n-the parties, but also on those who derive title
under them by-3lienation made pending the suit.'
- The doctrine of lis pendens has been fully expounded by
the
1907) 29
Privy Council in Faiyaz Hussain Khan vs. fr<J.g Nara~n (
the
All 399 P.C. whe re their Lordships quote with approval

---
effect
observations of Lord Justice Turner in Bellamy's case. The
l the
of the application of the doctrine is that it does not annu
s of the
conveyance, but only renders it subservient to the right
parties to the litigation.
and
~e me Court in Ja y~ MudaJiar vs. ADHS.l""!"i
AIR 1973 S.C. S69, has held - 'Th~_a..lJ!Pi>.!_e of Section 52
but only
of the T .P.Act is not to defe~t an~ _j~ !J!<L~gµtt31>l~~laim
~g ~th
to subject !}tern _to,.the authority of t!ie Court wl;ri~h is deal
the property to which claim are put forward'. ·
d
•_J.ln6erlying Principle: The Doctrine of Li81)Clldens is base
on the Common Law maxim 'Pendent e lite nihil innovator', which
- ---------:,
uld_~
means, "dl!ring pendency of a_ )jtig~tion no_!hmg_ne'L£hQ
though
i~tro.duc,ed". It i~ based upon public policy and holds good
i~ creates hardship to an innocent purchaser.
. The
--.$ection 52 whev ~nalysed shows that it is in two parts
of the
first part lays dowp th~ ~~r!cJ!tio_!l_~- f!)r tl]e ap~licability
nces
~octrine and the s~cond part lays down what are the conseque
if t~ doctrine applies.
"-- .Essential Conditions ofth e Doctrine: For application
of the
doctrine, the following conditions are to be satisfied.
 Lectures on Transfer o f P ro p er ty A ct
11 8
(1 ) T he re m us t e
b
P~
n d e ~ o f _a_suit or
pe nd en cy of a
-
proceeding.
- --
(2 ) T he pendency o f ·t m us t be in th e co ur t -- - - - -
sut o f competent
jurisdiction (~ om pe te
nt Co!!rt)J
(3 ) The suit or proc
eeding sh ou ld no t b e
co ll us iv e. .
.
(4) A ri gh t to un m
. d. tly or spec ov abl e pr op er ty sh.ou ld b e (d ir ec tl y or
1n tree ifically) in qu es ti on . . 1
· nm • volved in th e su it m in th e su it . (The
_ questio us t b e a n•gh t to un • \
property). m ov able
- (5) T he transfer sh
ould be m ad e by on e
litigation w it ho ut auth o f th e pa rt ie s to the
ority o f th e co ur t.
(6 )··T he al ie na ti on m
f us t af fe ct th e, ri gb t o t~
e ot he r party.
~endency of a ~___ _,
u= 'c}J. '(' ,a-
0 ....
su it : T he pe nd e~ cy . .
from the-date o f filing of_ su it co ~ en ce s
o f plaint, an d co nt in
the suit by a decree or ue s ti ll th e di sp os al
anor de r: - ~ppeal§. an of
come within the pu rv ie d ex ec ut io n proceedi
w o f co nt in ua ti on o f ngs
plaint ·is filed in H ig th e pr oc ee di ng s. If th
h C ou rt an d is('r et ur e
Lower Court compete ne d fo r pr es en ta ti on
nt to try, th e in
date o f filing in the H the
ig h Court. If th e su
court and from there, it is fi rs t fi le d in low
if it is returned· fo r er
Court, then the pe nd en pr es en ta ti on in H ig
cy co m m en ce s fr om h
in the H ig h Court. th e da te o f pr es en ta ti
on
~ r e w as a ~onflic ·
t o f op in io n as to th
the ~ende~cy co m m en e qu es ti on 'w he th er
ce s fr om th e da te o f
- servmg the summon fi li ng a su it 'oi:. da te
s. T he P ri vy C ou nc il of
se tt le d th is qu es ti on in -
. _ _ _g N.aray~n vs. P ri -
pendency o f a su it co ya z H as sa n K ha n, 29 A
and no t from the da t m m en fr ll . 33 9: T ha t the
f th da
c~s
e o se rv m g oom e, te o
f su m m on s. f .f-il in g o f th e pl ai nt
In th e case o f H .
Alld. 211 - it was -har i L 1
. el
- d tha B al w an ti a an d ot he -
rs ,
mamtenance in th e li at
fe ti m e o1ff th 1
h. e P ai•nt·- - - - A IR 1998
tf1 w as en ti tl ~
is hu sb an d an d co ul d to ge t
d p ra y for
 ..1_.n~ tr I(~
C o _\,,.,\ U.,2 • r :;:),,, pCU} J'h.o w ('I

h..cI y, ;;,/ ( ,, l
(~i)~ ~\ \ .~
Transfer ~f Immovable Property ..,
119
charge against the property of his husband, later this right of the
wife would not be affected by the sale deed executed d .
. - unng the
pendency of the suit on the transfer of such property to the
defendants and the sale deed would be hit by of Section 52
of the Transfer of Property Act.
~ompetent Court: Section 52 applies if the suit is pendin
before the Court of competent jurisdiction. g
~ u s t not ·be collusive: The doctrine (Section 52) is not
applicable if the suit is collusive. collusive suit is not real and it
is a ~replanned one to defeat the defendants .
..,,,.
~mmovable Property: The issue or question involved in
the suit must be a right with regard to an immovable property.
Actual transfer: For application _of the- doctrine, there
must exist actual transfer which includes sale, gift, mortgage, lease
etc.
1I
~ffecting another's right: For application of the doctrine,
the transfer should affect the right of another person. The transfer
during pendency is not jpso facto voig, bu~idable. The doctrine
is not applicable if the rights of the transferor alone are affected
and not the rights of parties to the suit.
~plicability of Lis Pendens: It applies to those transfers
which are made during pendency of suit or appeal arising out of
that suit. Such transfers are liable to be declared void and invalid.
~trine in India: The leading case on this d(?ctrine in India
is Faiyaz Hussain Khan vs. Prag_ Narian (29 All 339), in which the
Pri~unci~ q~with approval the observation of Turner, L~.,
and Lord Cranworih in Bellamy's case, and many other cases m
this country involving the question· of !is pendens _have been decided
on the same principle. The rule, it ~11 be obvious, is not based on
the doctrine of notice but on expediency, i.e. the necessity for final
adjudication. - - •

,-- µ
 120 Lectures on Transfer of Property Act

N ~ / Texti[e Cor2oration _(JJ.P_) Ltd~ ~ s .

'!_Vadeshi- Cotton Mill~ Co. _Ltd. _and-.others _(2000( 1) A. w.c.
2.11 (Noc), it was held that Section 52 enacts the doctrine of /is
pendens. It i_mposes a prohibition on transfer or otherwise dealing
with any property during the pendency of a suit, provided, ·the
conditions laid down in. the section are satisfied. ; .
Suit flied on the sante_.y on which deed registered: Effect
- In NarayJ UI~ Chan~~ aran ~ajr -v.s. Ku.nbt~ a
Thanka~ma(AIR 1990 Ker 177 at pp.~78, 179) the contention
----
....___ • ---
th~t sale deed is hit by the rule of lis pendens embodied in Section
52 of the Transfer of Property Act does not appear to be correct. It
is true that execution and registration of sale deed and the
presentation of the plaint were on the same day. So also, sale d~bd
_shows that it was registered only at 2.30 p.m. That does not mean
that execution and presentati~n for registration were at that time.
It must have been executed and presented for registration much
earlier. Then only after the formalities and in the usual course it
could have come up before the Sub Registrar at 2.30 p.m. There is
no evidence regarding time at which sale deed was executed. That
is when there is no evidence regarding the exact time. But the
presentation of the plaint or the institution of the proceeding in a
Court which alone is the commencement of the pendency of a suit
or proceeding for the purpose of S~ction 52 under the explanation,
is not a judicial proceeding which is capable of resisting the above
presumption. ;\ppellant was not able to say when the plaint was
presented. That means that even though both were on the same day
he was riot-able to discharge his burden to·prove that the transfer or
otherwise dealing with property under sale deed by the r~spondent
was after the commencement of the /is. If so, -sale deed must be
taken as not affected by Section 52, T.P.Act. pspecially when the
p,r.onote., became barred by limitation and the appellant had not
.deposite4 the amoupt o(Rs.5000/-, sale deed could not be challenged
otherwise also.
'Transferred or otherwise dealt with' the propetfy appearing
in Section 52, T.P.Act is not the admission of execution before the
 operty
Transfer of Immovable Pr

th e re gi str at io n by hi m . Th at is execution and

Sub Re gi str ar or en is
po ss es sio n an d tit le as th e ca se m ay be . Th e bu rd
transfer of io n 52 an d pleading lis
g on th e ef fe ct of Se ct
on the pa rty re ly in
e th at hi s su it wa s~ in sti tuted be fo re th e execution
pe nd en s to pr ov
ic h he is impeaching.
of the de ed of transfer, wh
mp be ll vs. St ra ng ew ay s (1877)
As ob se rv ed by Gr ov
R
e, J.
19
in
90
---
Ca
K er 17 7a t
-
pp .1 79 , 180, la w wi ll
3 CP D 105, qu ot ed in AI
on s of a da y wh er e it is ne ce ss ar y no t m er el y
distinguish th e fracti e
e of ju sti ce , wh ic h is a va gu e term, bu t al so fo r th
for th e pu rp os th e tw o events in qu es tio n
n to sh ow wh ich of
purpose of the decisio e to be co ns id er ed as ta ki ng
. Ju di ci al pr oc ee di ng s ar
first happened ne.
at th e -ea rlies t pe rio d of th e da y on which th ey ar e do
place
ic ab le µJ
n s : Th e Do ct rin e .of Lis Pe nd en s is no t ap pl
~ •
the following ca se s.
th th e COJ)Se!_-lt of---th e Cour t.
ns fe r tak es pl ac e wi -
(1) W he re tra ~-
es to money. disp-ut.. -- es.
(2) Where th e transfer relat____,_...,. ---~-
' __.. _

r r~ en ue sales.
(3) Where th e transfer is fo -- - s: Th e ru le of Re sj ud i~
t~
ju di ca ta an d Li s Pe nd en
t
ne r fro m de ali ng Li s Pe nd en s an d on ce a ju dg m en
prevents the ow
a co m pe ten t co ur t in re ga rd to th e su bj ec t m at te r
is pronounced by cision
it in wh ich th e do ctr in e of Li s Pendens applies, th e de
of the su rty to th e su it bu t al so th
e
ta an d bi nd s no t on ly pa
is resjudica ••
transferee Pe nd en te Li te.
----- e: To~_rule ~Qntained
e of no tic
\. fa pe nd en s an d th
Jr an
e Do
sf e~
ct rin
!!._ f Pr operty Ac t is, howev.er,_lli
lt
in ~o a- S .2 _g f th e s
do ctr in e· of no tic e bu t 01 !_..~xpediency. Th e lis pe nd en
based on the ie na er s it s ~ to
t~ e tra ns er bu t Ut ily
rule do es no t !,.,J!!!Ul,.. le,
of th e pa rti es to th e lit ig ation. According to this ru
the rights ty du rin g th e pe nd en cy of
oe ve r pu rc ha se s a pr op er
th~refore, whos m ay be m ad e against th e
e ju dg m en t th at
a su it is bo un d by th en though su ch a pu rc ha se
r
wh om he de riv ed tit le ev
person from no tice of th e pe nd in g
th e ac tio n or ha d no
was no t a pa rty to
litigation.
 • LECTURE - VIII

DOC'fRINE OF El:ECTION /
[Section 35].

Se9tion 35 of .the Tran sfer of Prop erty Act, 1882_ deals \Vi'
the Dpc1 $,e- of Election. The word ~J;lect' literally means,,~
c~oo se by vote or to,d~ ide on a cours e of a~ijqn". The doctrine}
elect ion is .an excep tion ~o the general/popular rule, 'N_emo dat
quod noli habe t' whic h means, "t:!o one_ can _gonvey
~ ' -=--~at _h~. bi.mself • It is .based on_tbe.principle of equity
and· is applicable_. to all kinds of properties, mova ble or immov~ble.
Supp ose, a prope rty is given to you and in the same d~ed of
gift, you are asked to transfer something belonging to you to another
perso n. If you want to take the property,. you sppu ld transfer your
prope rty to- some one else, otherwise, you cann qt take the property,
whic h is trans ferre d to you by someone.· Similarly, A traqsfers to
you; one acre of his ·land and in the same deed of transfer, A asks
you to trans fer your ho~se to C. Now, you have .to ~lect wqetherto
accep t land at the cost of your house or .
to refus e the land to retain
.
·.. .

the house. . ,

As state d above, election is an oblig ation to choo se between

• two inCQnsistent or alternative rights in cases wher e there is a clear
I inten tion (exJ1tess or impli ed) of the grant or that the
grantee should
not enjoy both the rights and once. The very foun~ tion·· of this
doctrine is_ that the perso n takin g a _be~ ftt JJPQet ati instrument
must also bear the burden. -- - •• - •

When a perso n want s to trans fer prope rty, whic h he has no

ri right to transfer, confe rs in- retur n some bene fit on the ·owner of the
I'
property. Such owne r must elect whet her to confi rm such transfer
i
I or to disse nt from it.
t
El_ection when nece ssary (Sect ion JS): Wh~ re a person
I

pi:ofesses to trans fer prope rty whic h he has no right to transfer, and
,
as part of the same trans actio n confe rs any bene fit on the owner of
I
.. I
I '

. 84
 -
;;:;,,-- Doctrine of Elect1oa
~i..e prop erty' such owne r must el . • 85
IJ• • fr . ect either t -
t to disse nt om tt; and in the 1 tt o ~n n such ~--
o .c-,. d a er case h- ..h~. uau~f er
i.-nefit so con1 erre , and the benef it .. es all relina uish the
""'... h · 1 so rttl!nQ
uishhP .i •
the trans feror or 1s representative as1·r. ·'-~ sha ll reveit to
Subiec t neve rthel ess, wher e the tr tthad . .
n0 tbe
:., . ans1er is gratu.en ·t1tsposec1 of,
tra11sferor has, befo re the election d" d - ttous, and the
,
incapable of maki ng a fresh transfer, and . te or otherw • bee
tse . ome
transfer is for consi derat ion, to the charge mf all kic~s wh_ere the
• •
disappotn~~d trans feree the ·
·amou nt
0
ma ng good to the
. or •val f h
•attempted .t~ be trans fe~ed to him. ue o t e property

mustrations:
Th~ farm of Sulta npur is the prop e~ of C worth Rs.800.
A by an instr umen t of gift professes· to transfer it to B, giving by
the same instr umen t Rs.10 00 to C. C, elects to retain the farm~ He
forfeits the gift of Rs.10 00.
• ~ n the same case, · A dies befor e the ·elect ion. His
repre senta tive must out of ·Rs. l 000 pay Rs.800 to B.
The rule in the first parag raph of this se.ction applies whether
the trans feror does or does not believe that whic~ he professes to
transf er to be his own. •
A perso n -takin g no benef it directly under a transaction, but
~vin g_ a bene fit Ul)der it indirectly, neea not elect.
A. perso n who in his own capacity takes a benefit under the
transaction niay in anoth er one dissent therefrom.
Ex~e ption to the last preceding four rules - Where 8
•
Partic ular bene fit is expre ssed to b e con erred on the ownerben
of the
fit
,•
Pn>perty whic h ·the transf eror professes tO transfer' and such . ethe
•
18
expre ssed to be in-·lieu 6f that property' if such owner c1auns
fi b t he is not
property, he must relinquil!h the partic u!:; be:;eu;,nuhim by the
bound to relinq uish any otherbenefit_ co erre
&atne transa ction . •
 86 • Lectures on Transfer of Property Act

Acceptance .0 f the ~enefit by the. person on whotn it.

conferred constitutes an election by him to confirm the transfer ~8
.
he is aware of his duty to elect and ofh t ose circumstances Wbi
,if

. • . . Cb
would influence the JUd~ent of a reasonable man 1n making
election' or ifhe waives enquiry into the circumstances.
•
an
Such knowledge or waiver shall, in the absence of eyidenee
to the contrary, be presumed, if the person on whom the benefit has
been conferred has enjoyed it for two years __:Vithout doing any ·act
.,.....+ _,.... __ - _ ... _,_.

to express dissent.
. Such knowledge or waiver may be inferred from any act of
• his which renders it impossible to place the persons interested in
the property professed to be transferred in the same condition as if
such act had not been done.
""'stration: A transfers to B an estate to which C is~tled,
an.d_as p_art_ofJne_same..Jransacti<.?1! gives C _a_coal-mine.. C ~kes
possession of the- mine and exhausts it. He has--thereby confinned
.__ - - --- ·--- --- - ....

- -- of the estate to B.
the transfer
. If he does not within one year after the date of the transfer
signify to the transferor or his representatives his intention to confinn
or to ~issen!_from the transfer, the transferor or his representatives
may, upon the expiration of that period, require him to make his
election; and, if he does not comply with such requisition. wi!hln a
re~sonable time after he has received it, he shall be deemed to pave
elected to confirm the transfer. '

In case of disa~ility, th~ election shall be postponed until the

disability ceases, or until some competent authority makes the
election..

• . Section 35 lays down the principle of highest equity and

apphes tQ all classes of persons irrespective of their religion/personal
Jaws.

.· -Who ca~ =~•~ct: ·A _person, getting some benefit in lieu of

losing something can elect.. • \ /
1

' Doctrine of Election

87
Underlying J>rinciples .o{ the D --- --- --
. . b • rine: The Do .
Electton 1s orrowed from the E . octiry ne of
on the following rules: nghsh Equ JurisprudencCtri ~ basing
-
• _
$ fb e person taking the benefit mu st also b
the burden.
~, -T he c!Qnee shall not b
d ~o ~ap£!obate and
~r ob ate '. If he approbates, he sha~ d~l:w~
11 m his favour to confinn
the same.

~ o one can blow .

'hot' and ,coId' in
. . - .. the same breath.
.
The Doctnne of_Election was stated bY M .
raaithla?~ m the
(ollowing words:

r -o/ d
Jie, who acceets a benefit under a will or - ~- or any other
instrument must
rul!le_nt;
~d op t the whole ~t en ts of the inst
confirm to all its provisio~s; and
h it~,
y1 ): re~ounce all the rights that are inconsistent wit
es and it
Ind ian Courts applied the Doctrine in several cas '
approbate and
wa s obs erv ed tha t 'a person cannot
.

reprobate the same'.

·principle of the
Underlying Principle: The underlying
the leading case:
doctrine was enunciated by Lord Coirus in
7854 - That a person •
~r di ng to n vs. Cardington, 1875 LR
which is beneficial to him
cannot accept ~hat part of an instrument
upon him. This decision J
and reject the portion thafimposes burden
was elaborate}~ ~evelop~d in:
the instant case, 'X'
v9.bop,q: vs. Cooper, 1874 LR Ill , 5 - In
after his widow's death.
gave certain property to a trustee to. sell it
be used for his children.
The sale proceeds in the property were to
The widow gave (transferred) her sel f ac~ uire d pro pe~
0
!
d s property to A • . A
sons 'B' and 'C' gnd the deceased husban
brought an actio~ ~gainst <'B' and 'C'
to choose (~lect) betw~en

J
 88 Lectures on Transfer of Property Act

their rights of inheritance or to accept the property under widow,

8
deed. Hel4 ~ t J t11e doctrine of election wouklapJlcy.
Conditions of the Doctrine: To attract Section 3S, the
following conditions ·are to be satisfied:
JThere mus~transfer of ru-~-
\ .
-~,.the transferor has to transfer the property of which he is
not a real owner or has no authority to transfer. ,
I
~ e transferor should confer some benefit upon the owner I
• of the property, which he professes to dispose of. • .
.
.. - .. r
~Dispo~l (of property) and conferment of benefit must be
. . ·part of the same transaction.

~-
(~) The benefit must be directly 99nferred on him.
cefThe beneficiary (put to election) should have an
v independent priority right. . •
. The person_pul to election i§._C.J..lled J'yfnl.ctory: d911~ '. and the j
perso~ ers_ i~lled the.;disap poi!Jte~e' . j
Effect of Election: If the election is made to repudicate the !
transaction, the consequences that follow immediately are simple..
He shall be relinquished of the benefit. Sue~ benefit rgerts (goes 1
back) to the transferor. /
Compensation to disappointed donee: If the donee elects
against the instrument the ~q~_~o~J Jis. ~q,~~s~~nJ:ative_js Jiabk _
to make good to the disappointed done~ or transfer the amount of .
the value atterµpted to be transferred to him on two specific cases.
The two cases are: - ·,,
f •

§ Where the· transfer is gr:atutious and the transferor- had

'

before the election died or otherwise become incapable

of making fresh transfer; and
y . an
•
. .

In cases where the transfer is for consideration.