TRANSFER OF PROPERTY ACT, 1882 (SECTIONS 1-35)

History
Enactments were scattered across – Madras Regulation of 1802, Bombay Regulation of 1827,
and Bengal Regulation of 1728 and 1806. Each province had their respective enactment on
how the transfer of property was to take place. Courts did not have a set of rules to apply to
legal disputes concerning property. They largely relied on the principles of equity, justice and
good conscience.
The First Law Commission drafted the first TPA bill. They attempted to get it under civil
laws but later realized that property matters must be dealt with separately. The first bill was
heavily modified and was sent before a select committee. It was kept open for public
criticism and it was redrafted entirely to the position it is in now.
On 17th February 1882, TPA was enacted and came into force on 1st July.
Snapshot:
- 8 chapters, 137 sections, 3 schedules
- Largely delas with immovable property
- Exclusionary definition of IP
- TPA not an exhaustive act – extension of contract act and runs parallel to Indian
succession act
- TPA overrides the personal laws except those which are exempt from Muslim law
- Section 14 and 129- exempt application n Muslim law
- With respect of pre-existing laws, the debate is solved with saving clause
To amend certain parts, TPA is prospective in nature.
Preamble – whereas it is expedient to define and amend certain parts of the law relating to
the transfer of property by act of parties
Scope of the Act
 Act defines and amends certain parts of the law relating to TOP by Act of Parties.
 It only governs and applies to transfer by act of the parties and not due to operation of
law
 The act applies only to the transfer by act of parties. A transfer by operation of law is
not validated or invalidated by anything contained in the act. a transfer which takes
place by operation of law need not meet the requirements of the provisions of ToPA or
Indian Registration act.
 Ex – doesn’t govern transfers through court auction, forfeiture, acquisition or
insolvency proceedings or govt grants. Or intestate or testamentary succession.
Basic objectives:
 Does not purport to introduce any new principle of law.
 Bring harmony to the rules relating to TOP between living persons and those
applicable in the case of devolution (intestate and testamentary succession- event of
death)
 To complete the law of contract.
  Through compulsory registration of transfers – change the nature of transfer of
property from private to public affair.
 The objective of act – to define and amend existing law and not to introduce any new
principle. The main objective – to bring the rules which regulate the transmission of
property between living persons into harmony with the rules affecting its devolution
on death.
Act is not exhaustive/ complete code
 deals with certain aspects of TOP only
 only defines and amend certain parts – the word consolidated has not been used
 the courts in India are empowered to settle cases not covered under provisions of the
act by applying rules of equity, justice and good conscience.
Legislative competence –
 TOP other than agricultural land is a subject specified in the concurrent list.
 Both the state and parliament empowered to make laws (const – 7th Schedule)
 Agricultural land – only states and it overrides laws of TPA in case of a conflict.

Section 1 – short title, commencement and extent

came into force on 17th February 1882, Commencement on 1st July, 1882
 TPA, 1882 – 1st July, 1882
 Amendment by TPA – changed the year of registration act from 1877 to 1908
 State govt or executive cannot modify the TP Act.
 Neither central govt nor state govt can exercise its executive powers in relation to the
aspects of transfer of property which are covered by the TP Act
 TPA is applicable across India except the territories that have been compromised of
Part B states before 1st November 1956. In 1947, when India gained Independence,
there were certain native states. These states were merged, or jurisdiction handed over
to Provincial governments. In 1950, India became a Republic and these states were
formally merged into India. The laws of India were applicable on them. Merged States
Laws Act, 1950 and Part B States Laws Act, 1951. By virtue of these enactments, the
Indian laws have been extended to Part B states now.
 Mentions Bombay, Punjab and Delhi. Earlier, the Act mentioned Burma, Pepsu and
Bombay. The modern day TPA extends the Act to Bombay (1st January 1893) and
Delhi (1st January 1962). It is applicable across India, except Punjab. State laws
and local laws take precedence in Punjab.
 TPA is an act that has evolved from the law of equity since it a common law origin.
The property cases in Punjab just mask the application of TPA because it is based on
equity, good conscience and although it is not explicitly recognized, special law
prevails over general law. TPA specifically mentions that it is general act and general
interpretation also deem it to be a general statute.
The transfer of property takes place in two ways:
1. Action of parties
Between two living persons, which would also entail body corporations (ones with a legal
personality attached to them and continue in perpetuity). Three categories of transactions:
a. Immovable property is moving from one living person to another (Transfer of
Property)
b. Movable property is moving from living to another living person (Sales of Goods)
c. Movable/Immovable moves from a dead person to a living person (Indian Succession
Act)

2. Operation of law
TPA evolved from the doctrine of equity. Exchange refers to a mutual transfer of ownership
of property. Typically, it excludes money because otherwise, it would be considered a sale.
Corporeal and incorporeal property
Corporeal property refers to any tangible property which can be touched and felt. They can
further be classified into Movable and immovable property.
Incorporeal properties are intangible properties such as intellectual property such as
trademarks, etc.

General clauses act Section 3

(36) “movable property” shall mean property of every description, except immovable
property;
(26) “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, 1908
Section 2 (9) of the Registration Act, 1908 states that “Movable property includes standing
timber, crops and grass, fruits on trees and juice in its trunk, roots and leaf, and property of
every other description, except immovable property.”
Indian Penal Code
Section 22 of the Indian Penal Code 1860 states that “The words “movable property” are
meant to include corporeal property under all descriptions, with exceptions such as land and
things attached to the earth or permanently fastened to anything which is attached to the
earth.

Principles relating to property

Ownership vs. Possession
Derivative right – cases on both sides. When an owner has an absolute right over his land, he
can derive benefit from it, and it cannot be restricted by virtue that someone else is facing
damage. These are principles, but the law does not provide any restriction, per se.
Right, to exclude others from the property.
Right to transfer or sell the property – Because a person has an absolute right over his
property, he also has the right to dispose of the property in whatever manner he wishes.
Theories of property
1. Historical: Propounded by Bentham, and supported by Maine. The concept of private
property has grown slowly and gradually. Property began from the concept of joint
property. The first stage exists from before even a state came into existence. The first
stage is of natural possession.at some stage, you will have a juristic possession of a
thing. Possession is 9 points in ownership.
2. Labour: Propounded by Herbert Spencer who said that property is something that you
work for. When you work, you bring something into existence because of labour and
that thing becomes the property. Main criticism was that it becomes redundant in
modern times as people can acquire property without utilizing any labour.
3. Metaphysical: Kant and Hegel. A thing can be claimed to be one’s when it is so
connected to one that when someone else uses that property, it would cause injury to
the one whose property it is. This theory treats property as an objective realization of
personality. If a person can exercise absolute will over his property, it becomes his
property. The main criticism is that it depends on many theoretical assumptions.
4. Sociological: Laski, Karl Marx and Duigit. Property should not be looked at in terms
of private rights. It should be looked at as a social function such that it is a part of
society. If you have the absolute control over your property, can you then harm
anyone else’s property? Property is a social function basically means that you
shouldn’t harm anyone else’s property. Property is a social fact and if social facts can
be changed, so can the property. The theory basically puts a restriction on harming
someone’s property by virtue of having absolute control over one’s own property.
5. Psychological: Given by Bentham. Property comes into conception just because of a
man’s desire to own things. Property in itself is a concept of mind.
6. Property as a creation of state: most reflected in modern times that property, its
demarcation and ownership is something that is the creation of state. When state
comes into existence, it owns the entire land and through some procedure it gives
back the land to the citizens. In modern times, even an ancestral property has to be
registered to have a good title over it.
7. Natural: principle that originally all the property was owned by everyone collectively.
There was no individual ownership. Philosophers include John Locke, Hugo Grotius
who believe that all things are originally without an owner. It wouldn’t be mere land
that would constitute property but our liberty, freedom and life are also our property.
Heavily criticised by Henry Maine and Bentham. Mere occupancy of land couldn’t
entail that it was the property. Without the existence of state there is no point in
existence of property.
Possession and Ownership
Acquisition and Transfer of Property
Acquisition has 4 modes:
1. Possession
 2. Prescription: entails one’s having right over any property because of lapse of time. Eg.
owner of a land stays abroad, and a peddler starts living on his land for 12 years.
When the owner comes back and realizes that someone unknown is trespassing over
his property and tries to evict him. He has a right to prescription and cannot be
evicted.
- Positive prescription: anything that is giving birth to a new right. Eg. easementary
rights.
- Negative prescription
a. Perfect: an entire destruction of a right. When someone gets a right by
easement, the owner loses his right over the parcel of land.
b. Imperfect: Just the right to access a particular part of land has been destroyed.
3. Agreement
4. Inheritance: it will have timelines. A will has to be executed within a given timeframe.
There are also various restrictions on the manner of disposing the property.

Section 2: Repeal of Acts.—Saving of certain enactments, incidents, rights, liabilities, etc.

— In the territories to which this Act extends for the time being the enactments specified in
the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing
herein contained shall be deemed to affect— (a) the provisions of any enactment not hereby
expressly repealed; (b) any terms or incidents of any contract or constitution of property
which are consistent with the provisions of this Act, and are allowed by the law for the time
being in force; (c) any right or liability arising out of a legal relation constituted before this
Act comes into force, or any relief in respect of any such right or liability; or (d) save as
provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or
in execution of, a decree or order of a Court of competent jurisdiction, and nothing in the
second Chapter of this Act shall be deemed to affect any rule of 11[***] Mohammadan
12[***] law.
 This section says that in the territories to which this Act extends for the time being the
enactments specified in its Schedule shall be repealed to the extent mentioned therein
(In the specified areas, certain laws mentioned in the attached Schedule will be
removed to the extent specified in the Schedule)
 This section mainly deals with
o Provisions not expressly repealed (saving of certain amendments)
o Provisions not contrary to TPA + permissible
o Rights and liabilities created before the commencement of TPA (Saving rights
and liabilities)
o Transfer by operation of law
 [s 2.1] Clause (a): Saving of Certain Amendments
o The act will not affect any provisions of the enactment which has not been
expressly repealed by this Act.
o This clause thus keeps intact the statutory force which the Legislature has
given local usages (specific clause in a legal document or statute is designed
to preserve the legal authority or power granted by the Legislature to local
customs or practices.)
 s 2.2] Clause (b): Saving of Incidents of Contract
o incident means terms of contract
 any act where TPA isn’t overtly repealed then to such an extent the act
would prevail
 as long as not expressly repealed they continue to be in force
 It says that the Act will not affect any terms or incidents of any
contract or constitution of property which are consistent with the
provisions of this Act and are allowed by the law for the time being in
force.
o Right of pre-emption and rent, profits are examples of incidents of contract
 [s 2.3] Clause (c): Saving of Rights and Liabilities Constituted before the Act
o Clause (c) says that this Act will not affect any right or liability arising out of a
legal relationship constituted before its enforcement.
o The Act will also not affect any relief in respect of any such right or liability.
o It is a general rule that no statute should be construed so as to have
retrospective effect (effective from back date) unless it is indicated from the
language of the Act.
o Any statute which affects any vested right or creates new liability is presumed
not to have retrospective effect.
o The Transfer of Property Act, 1882 too does not have retrospective effect. It
has saved all the rights and liabilities arising out of legal relations before its
enforcement.
 [s 2.4] Clause (d): Transfer by Operation of Law
o TOPA is not applicable to transfers by operations of law but only applicable to
transfers by act of parties
o Provisions will not apply to transfers made
 By operation of law
 By decree or order of a court of competent jurisdiction
 In execution of such a decree or order
o Saving clause (d) itself contains an exceptions
 It says that save as provided by section 57 and Chapter IV of this Act,
this Act will not be deemed to affect any transfer made by operation of
law or by a decree or order of a court of competent jurisdiction or in its
execution.
 Section 57 is related to sale and provides for discharge of
encumbrances on sale whereas Chapter IV deals with mortgages of
immovable property.
o Eventhough act is not retrospectively applicable, it would still protect the
rights, liabilities and reliefs
 s 2.5] Muhammadan Law
o Section 2 concluded with the statement that nothing in Chapter II of this Act
shall be deemed to affect any rule of Muhammadan Law
o TOPA will not apply to Mohd. Law if they are inconsistent with its provisions
o For example, a Mohammadan may settle property in perpetuity for the benefit
of his descendants provided there is an ultimate gift in favour of charity (Wakf
 Validating Act, 1911). Such a rule is inconsistent with sections 13 and 14 of
the Transfer of Property Act, 1882. Therefore, such sections are not to be
applicable to Mohammadans Where there is no such inconsistency, this Act
will be applicable.
 Any act or statute that has come into place where overtly TPA has not repealed the
act, the act shall prevail. Punjab Laws Act, for example, are not repealed. These local
laws and customs will prevail to the extent they have not been expressly repealed.
 Varadhar Julu vs. Dhanlakshmi
o Para 4 – because the TPA saves the inherent rights from being repealed, the
mortgagee would have the right to claim expenses from the mortgagor.
o (c) – the act protects the rights and liabilities that have been created before the
commencement of the TPA. It also saves any reliefs that have been granted.
 Sarda Kanta Case
o 108(j) – provision of tenancy being transferable. In this case, tenancy was not
of a transferable nature before the commencement of the Act, it was said that
the nature of tenancy would remain the same provided that TPA would not
apply retrospectively.
o Attestation cannot be equated as consent.
o Proof of valid attestation – to prove validity of deed, the party relying on it
should show the attestation
 Jalikaa vs. Mukund Dev
o The mortgage that took place was without an attestation. When it took place, it
was rendered valid. TPA mandates attestation. This case law established that
the mortgage without attestation would be protected under s. 2(c) of TPA.
o In terms of procedural law, retrospective application of TPA would come into
force. Whenever there is a right involved, the TPA would not apply
retrospectively
 Retrospective application of TPA
o - Murlidhar v. Darsharan
o - Rameshwar Rote v. Mohd. Mehdi
o - Shiva v. Jaru
 In terms of procedural law, retrospective application of TPA would come into force.
Whenever there is a right involved, the TPA would not apply retrospectively.

Section 3. Interpretation-clause.—In this Act, unless there is something repugnant in the

subject or context,— “immoveable property” does not include standing timber, growing
crops or grass: “instrument”, means a non-testamentary instrument: 5
[“attested”, in relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the executant sign or affix his mark
to the instrument, or has seen some other person sign the instrument in the presence and by
the direction of the executant, or has received from the executant a personal
acknowledgement of his signature or mark, or of the signature of such other person, and each
of whom has signed the instrument in the presence of the executant; but it shall not be
necessary that more than one of such witnesses shall have been present at the same time, and
no particular form of attestation shall be necessary:]
“registered” means registered in any part of the territories] to which this Act extends] under
the law for the time being in force regulating the registration of documents:
“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 imbedded for the permanent beneficial enjoyment of that to which it
is attached:
[“actionable claim” means a claim to any debt, other than a debt secured by mortgage of
immoveable property or by hypothecation or pledge of moveable property, or to any
beneficial interest in moveable property not in the possession, either actual or constructive,
of the claimant, which the Civil Courts recognise as affording grounds for relief, whether
such debt or beneficial interest be existent, accuring, conditional or contingent:]
1 [“a person is said to have notice”] of a fact when he actually knows that fact, or when, but
for wilful abstention from an enquiry or search which he ought to have made, or gross
negligence, he would have known it.
Explanation I.—Where any transaction relating to immovable property is required by law to
be and has been effected by a registered instrument, any person acquiring such property or
any part of, or share or interest in, such property shall be deemed to have notice of such
instrument as from the date of registration or, 2 [where the property is not all situated in one
sub-district, or where the registered instrument has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which
any memorandum of such registered instrument has been filed by any Sub-Registrar within
whose sub-district any part of the property which is being acquired, or of the property
wherein a share or interest is being acquired, is situated]:
Provided that—
(1) the instrument has been registered and its registration completed in the manner
prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder,
(2) the instrument 3 [or memorandum] has been duly entered or filed, as the case may be, in
books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been
correctly entered in the indexes kept under section 55 of that Act.
Explanation II.—Any person acquiring any immoveable property or any share or interest in
any such property shall be deemed to have notice of the title, if any, of any person who is for
the time being in actual possession thereof.
Explanation III.—A person shall be deemed to have had notice of any fact if his agent
acquires notice thereof whilst acting on his behalf in the course of business to which that fact
is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not
be charged with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud.]
 Interests in the property
 o A right of ownership, of having the title to the property
o An exclusive right to alienate the property in any manner that he likes
(absolute ownership is an aggregate of component rights, including right to
enjoy the usufruct of the land. (these rights are called interests in the property)
o Where only some rights are transferred, it would be a transfer of the interest in
the property (lease, mortgage, contingent, vested remainder)
o Where all interests are transferred – absolute transfer (sale, gift, dedication)

 Immovable Property
o Immovable property includes land, benefit arising out of land and things
attached to the earth, things permanently fastened to the earth
o TOPA has not defined this term,
o It only says that immovable property does not include standing timber,
growing crops or grass
o Definition under the General Clauses Act
 immovable property shall include land, benefit to arise out of land and
things attached to the earth or permanently fastened to anything
attached to the earth.
o Definition under the Registration act
 immovable property shall include land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries or any other benefit
to arise out of land or things attached to the earth or permanently
fastened to anything which is attached to the earth but not standing
timber, growing crops or grass.

o Land
 Land includes the following elements when it is considered in its legal
aspects:—
(a) A determinate portion of the earth's surface.
(b) Column of space above the surface.
(c) The ground beneath the surface.
(d) All objects either on or under the surface of land in their natural
state, for example, minerals. Land also includes lakes, rivers and pond
which are land covered by water.
(e) All objects placed by human agency either on or under the surface
of land with the intention of permanent annexation. With permanent
annexation these objects become part of the land and lose their
separate identity. Example may be taken of buildings, fencing and
walls etc.
o Benefits arising out of land
 All the benefits arising out of land are also considered as immovable
property because such benefits cannot be severed from the land and are
incidents of it
 Right to collect lac, leaves etc. from trees, revenue from agricultural
land, right to take out minerals, to collect fish from ponds, debt secured
 by mortgage of immovable property, rent from tenanted property are
all benefits arising out of land.
 Prendre which means profits to be taken . An example of a beneficial
right that also allows you to use the soil of the neighbouring land.
Refers to incorporeal property arising out of the land. Right of way is
an easement right. It is an incorporeal benefit.
 Anand Bahera v. State of Orissa
 Right to fish in water body over time has been recognised as an
incorporeal immovable right
 Property can be classified as tangible and intangible
 Tangible properties are those properties which have physical
existence and which can be seen or touched. Tangible
properties are also known as corporeal properties.
 Intangible properties, also known as incorporeal properties,
have no physical existence. They are in the form of some rights
under which certain benefits are given to certain persons. Such
rights are known as beneficial interests or beneficial rights.
 Any right over land is an incorporeal right
 Example: Right to profits a prendre is benefit arising out of
land and is, therefore, immovable property. For example, a
right to enter upon land and to carry away fish from a pond is a
right to profits a prendre and is, therefore, immovable property.
Similarly, a right to graze over the land of another is a profit. A
right to enter upon land and remove trees and a contract for the
purpose of felling, cutting and removing bamboos from forest
areas for the purpose of converting the bamboos in proper pulp
etc., have been held to be profit a prendre or benefits arising
from land. Similarly, right of ferry, right given to rear lac and
right to take minerals from land—all are held to be benefits
arising from land, and therefore, immovable property.
However, where the benefits arising from land are related to
standing timber, growing crops or grass, they are not
considered as immovable property.
o Things attached to the earth
 Things rooted to the earth
o Trees, shrubs
o Trees used as standing timber are moveable whereas those trees
which are fruit bearing are immoveable property (Fruit bearing
trees can be both moveable and immoveable depending on
circumstances)
o Immovability is incapacity for any alteration whereas moveability
refers to a thing capable of alteration
 Things embedded in the earth
o It means things which rest their own weight on earth
o There are two essentials: permanence of enjoyment and intention
while making fixtures
 o Eg: houses, walls, buildings
o The test for immovability is whether or not the thing rests by its
own weight on earth and whether it can or cannot change place and
be removed from one place to another place
o an anchor is embedded in the earth but not considered immovable
property, However, if we place block of stones one on the top of
another without any cement or mortar to form a dry stone wall it
would become part of the land and will be considered as an
immovable property. But the same stones lying in a builder's yard
will not be considered as immovable property
o Case: Anand Bahera v. State of Orissa: The Court held that the
Chilka lake is an "Immovable property" as per the Section 3(26) of
General Clause Act and Fisheries are the "Benefits Arising out of
Land". Right to enter the land and carry-on fishing for the purpose
of business is also regarded as "Benefits arising out of land" or
"Profit a prendre". In this case "Benefits Arising out of land", i.e
Fisheries are considered as "tangible immovable property" then the
property was over Rs.100 in value and such "sale of property"
should be registered under the Section 54 of Transfer of Property
Act. Since there was no Registration of the contract by the
petitioner as per Sec 54 of TP Act and purely based on oral
agreement, he has no fundamental right over the property.
 Test for whether a thing is embedded in the earth or not
(1) Degree and mode of annexation
- If a thing is so annexed to land that it cannot be removed
from its place without great damage to the land, it should be
regarded as annexed in perpetuity and should be considered
as immovable property.
- Therefore, an anchor of a ship embedded in earth, bricks
lying in a heap, tapestries attached to a house which can be
removed without damaging the house, 30 and a hut which
merely rests by its own weight on the earth, 31 are all
considered as movable property.
(2) Object of Annexations
- The object of annexation can be inferred from the interest
the person has in the property to which the annexation is
made. If the person is the owner of the land, the inference
would be that attachment or annexation is meant to be
permanent and immovable. Whereas if the person has
temporary possession, it will be inferred that annexation is
also temporary
- If intention is permanent improvement, then they become
permanent fixtures
Doctrine of fixtures:
English law -
To understand how movable can become immovable and vice versa, take look at 2 maxims
a. Quicquid plantatur solo, solo cedit – whatever is planted in the earth becomes a part of
the earth, and consequently, whosoever owns that piece of the earth will also own the
thing planted
b. Quicquid inaedificatur solo, solo cedit – whatsoever is built into or embedded into or
attached to soil becomes part of the earth and consequently, whosoever is the owner of
that piece of land will also be the owner of the thing attached/built/embedded.
2 exceptions to this doctrine:
1. They are applied only when there is no contract to the contrary
2. Trade fixtures fixed by a tenant (refers to all those things attached or affixed by a
tenant on the land of the other, which are necessary for him to carry on his trade).
Indian law –
The first maxim doesn’t generally apply in India.
2 rules in India that determine the entitlement issues with respect to things attached or
embedded in land by a person other than the owner. These rules apply when the person was in
lawful occupation of the property and wasn’t a trespasser.
1. Entitled to remove the attachment if he vacates the premises – provided he leaves the
land in same state as it was previous to the attachment.
2. He allows attachment to remain on the land so that owner derives a benefit out of it,
then he is entitled compensation for its value (Narayan Das case)

 Standing Timber
o Under this section, standing timber does not come under immoveable property
because
A. Shantabai v. State of Bombay
- Whether the right granted to the wife in the form of IP or MP?
- The document was written, but neither attested nor registered.
- Therefore, she tried to prove that the grant was in standing timber and hence, MP.
Court held: a right to enter upon the land of another and carry a part of the produce is
a case of – PROFITS A PRENDRE (benefit arising out of the land and hence a grant
in immovable property). The grantee empowered to take the benefit of the soil.
Duration of grant also 12 years. Since many more trees will come up, it is a way of
deriving the profit from the soil. Hence, intention not to cut the trees at a reasonably
early period. – right in IP but not created through a registered deed – hence no remedy
to the wife could be granted.
B. State of HP v. Motilal Pratap Singh & Co.
- Whether a contract to cut standing timber would require registration or not
- Held – where some trees are earmarked for ascertaining the required growth and some
felled and some to be cut within a short period of time, the contract is for standing
timber – hence movable property.
- Documents for sale of these trees – no registration
 
 Growing Crops
o Growing crops are considered as movable property. This term includes all
vegetable growths whether in the form of fruits, barks, or roots. 38 Growing
crops like wheat, gram, barley etc., although are rooted in the earth but they
are not considered immovable because they are bound to be cut when they
become ripe. Similarly, sugarcane crops, crops of indigo, vegetable crops of
potato, crops of grapes and betel leaf etc., are all considered as movable
property.
 Grass
o Though it is rooted in the earth it is called moveable property because it is
mainly used as fodder
o right to cut grass is immovable property because this right is a beneficial
interest in the land.
o Seeni Chettiar v Santhanathan 41 it was held that an agreement for sale and
purchase of growing grass, growing timber or underwood or growing fruit, not
made with a view to their immediate severance and removal from the soil and
delivery as chattels to the purchaser, is a contract for the sale of an interest in
land.
For TOIP – owner has to do 3 basic formalities – (written and executed, attested and
registered)
 Execution of proper written transfer deed is the first requirement
Has to be executed – signed by the transferor
 Has to be properly attested
 Duly registered
Things included under immovable property
 A right of ferry.
 A right of way.
 Right to collect rent of an immovable property.
 A right to catch and carry away fish.
 Hereditary offices i.e., office of a hereditary priest of a temple.
 Right to collect dues from holding a fair on a piece of land.
 Right to collect lac from trees.
 Right of redemption of mortgaged property.
 Reversion in property leased.
 A factory.
 The interest of a mortgagee in immovable property.

 Movable Property
o According to GCA- movable property means property of every description
except immovable property."
o The following are not immovable property- (a) A royalty. (b) A decree for sale
of immovable property. (c) A decree for arrears of rent. (d) Right of worship.
(e) Machinery which is not permanently attached to the earth. (f) Government
 promissory notes. (g) A right to recover maintenance allowance. (h) Standing
timber, growing crops and grass.
 Test for determination of whether movable or immovable property
o Degree or mode of annexation
 Set back in soil for long and therefore it got stuck. If pulled now then it
would cause damage. This is immovable property
 Wake v. Halt- If a thing is so annexed to land that it cannot be
removed from its place without great damage to the land, it should be
regarded as annexed in perpetuity and should be considered as
immovable property
 VP Pakrudin Haji vs. State Bank of India AIR 2009 Ker.78
o What is the purpose of machinery fastened by concrete and bolts to land? The
purpose must be questioned to determine the nature of the property. The
intention here isn’t to fasten it permanently, but only temporarily depending on
the purpose it has been employed for.
o Thing attached to what has been embedded into the earth – distinction –
anything that is attached to the earth and used permanently for its enjoyment
which includes fans, tubelights, doors and windows. These will be considered
immovable properties.
 Suresh Chandra v. Kundan
 Shantibhai v. State of Bombay AIR 1958
o Executed an unregistered deed lease in favour of wife
o According to that deed, a right was conferred to the petitioner to enter the
estate and also to cut and take out bamboo, teak and fuel wood.
o The major conclusions arrived from this case were that trees are regarded as
immovable property. In the case of a lease, the person who enjoys the property
has no right to take it away. In a profit-a-prendre, one has permission to enter
the land, not to enjoy it, but to remove something. In the event that registration
is required, a deed is used to transfer the right. There is a distinction between
lease and profit-a-prendre. The lease enjoys movable property, whereas a
person has only the right to take the goods (such as soil, or minerals from
land) in profit-a-prendre.
 Mortgage Debt
o It is not considered as an immovable property
o a debt secured by mortgage of immovable property was considered as an
actionable claim under section 3 of the Transfer of Property Act, 1882. But
after the amendment in 1900 the definition of an "actionable claim" expressly
excludes a debt secured by a mortgage of immovable property and such a debt
will now be treated as immovable property and it can be transferred only in the
same way as an immovable property is transferred i.e., it can be transferred
only by a registered instrument
o Vadarjulu v. Dhanlakshmi: mortgager’s right to claim expenses
 Instrument
o Instrument is a legal document
o Under section 3, instrument is defined to be a non-testamentary document
 o It is evidence of transfer of property
 Attested
o "attested", in relation to an instrument, means and shall be deemed always to
have meant attested by two or more witnesses each of whom has—
(1) seen the executant sign or affix his mark to the instrument, or
(2) has seen some other person sign the instrument in his presence and by the
direction of the executant, or
(3) has received from the executant a personal acknowledgement of his
signature or mark, or of the signature of such other person, and
(4) each of whom has signed the instrument in the presence of the executant;
but
(5) it shall not be necessary that more than one of such witnesses shall have
been present at the same time, and
(6) no particular form of attestation shall be necessary.
o Attestation means to sign and witness any fact. A property may be transferred
by delivery of possession or by a written document. When the property is
transferred through document, it is said that the deed or document of transfer
has been executed by the transferor.
o Transferor of property who executes the deed is known as executant.
o For execution of the deed, it is necessary that two persons must be present
who must witness that only the executant has written or signed the deed. This
process of witnessing the execution of deed is called attestation and such
persons are known as attesting witnesses.
o According to Act, there must be two attesting witnesses, each must have seen
the executant sign the instruments or affix his thumb impression to the
instrument and each of the two attesting witnesses must have signed the
instrument in the presence of the executant
o Attestation ensures the authenticity of the execution of a document. It
confirms that only the executant has executed the document and that the
execution was with free consent of the executant and there was no force, fraud
or undue influence upon him.
o Attesting does not mean that the attesting witnesses have knowledge about the
contents of the transfer
o For valid attestation there must be
 At least two or more attesting witnesses
 Any person who is of majority and sound mind can be an attesting
witness
 it is necessary that each witness must actually see the executant or any
other person with the authority of the executant sign or affix his mark
on the instrument. If there are many attesting witnesses it is not
necessary that they should attest at the same time.
 It is necessary that each witness must attest in the presence of the
executant.
 Attesting witness need not attest the execution of the deed but merely
the acknowledgement of the execution by executant himself
 Party to a transaction cannot be an attesting witness
  a person who is only interested in the transaction but not a party to it
can be an attesting witness.
 Competency of attesting witnesses:
o Competent to contract: attained majority, sound mind – a relative, colleague,
friend
o Even illiterate person
o A party to the deed, a person executing the deed through POA, or agent cannot
be competent attesting witnesses
o Where money is advanced by 3rd party but not only by the mortgagee who also
attested the deed, then attestation is proper.
o Distinction between the party to a deed and interested party.
 Conditions of valid attestation laid down by the Supreme Court
 (1) Two or more witnesses must have seen the executant sign the
instrument, or should have received from him a personal
acknowledgment of his signature.
 (2) With a view to attest or to be a witness to this fact, each of them
should have signed the instrument in the presence of the executant. It is
essential that the witness should have put his signature for the purpose
of attesting i.e., confirming that he has seen the executant sign, or has
received from him a personal acknowledgement of his signature. If a
person puts his signature on the document for some other purpose, for
example, to certify that he is a scribe or an identifier or a registering
officer, he is not an attesting witness
 Attestation cannot take place before the signature of the executant. Not
only the executant should sign the document in the presence of the
attesting witnesses but the witnesses too should sign the document in
the presence of the executant
o Animo attestandi
 TOPA does not prescribe any particular form of attestation
 Animo Attestandi means that the attesting witness has put his signature
for the purpose of certifying that he saw the executant sign the
document. If a person puts his signature for any other purpose (other
than certifying) he cannot be an attesting witness.
o Effect of invalid attestation
 It becomes unenforceable in court and thus makes the document
invalid
o Requirement of attestation
 Not every document needs to be attested but transfer of immovable
property requires attestation
 Signature on the part of the scribe cannot be regarded to be of the same
status as that of the attesting witnesses.
 VS v. Mohanty
o - A and B are friends, B needs money and A lent the money through C. C and
A executed a deed for repayemnt
o - B as attesting witness there is valid attestation
 Abdul Jabbar v. Venkata Shastri 1969
o - whether deed signed by sub-registration and indentifying witness validly
attested?
o - if a person signs for any other purpose other than attesting witness then he is
not attesting witness (eg: scribe, registering officer etc)
 Venkata Shastri v. Rahima Bai 1962
o - if they have the intention then can be attesting witness
o - if a person signs for any other purpose other than attesting witness then he is
not attesting witness (eg: scribe, registering officer etc)
 Kumar Harish Chandra v. Bansidhar Mohanty
o - how an interested party be an attesting witness
o - if a person is a party to the deed he cannot be an attesting witness but if he is
just party to the transaction then he can be a valid AW
 Registered
o “registered" means registered in any part of the territories to which the Act
extends under the law for the time being in force regulating the registration of
documents
o this is the only formality that makes the transfer a public affair.
o Mandatory requirement – duty of prospective transferee is to search the registers and
ascertain the registered transactions. A failure to inspect the registers leads to
imputation of CN. The parties shall be deemed to have notice of the registered sale
deeds, which are affected in favour of the purchaser.
o Case – Tilakdhari Lal v Kundan Lal
o TP Act did not specifically provide it as a principle, registration would not amount to
CN and this issue would vary depending upon F&C. It would only amount to notice.
But presently, it has completely changed to case on case basis
o Then in 1929 – by express amendment – explanation 1added – the decision of Kundan
law is no longer good law
o Conditions for application of registration of doc amounting to CN:
o Instrument registered and completed in manner provided in RA, 1908
o Duly entered in books kept under S. 51 of RA 1908
o Particulars relating to transactions correctly entered in index kept under S. 55
o So, no notice where registration is not compulsory. In addition, registration as
constructive notice only for subsequent transferees.

 Actionable Claim
o "'actionable claim' means a claim to any debt, other than a debt secured by
mortgage of immovable property or by hypothecation or pledge of movable
property, or to any beneficial interest in movable property not in the
possession, either actual or constructive, of the claimant, which the Civil
Courts recognise as affording grounds for relief, whether such debt or
beneficial interest be existent, accruing conditional or contingent:"
o Sale of lottery tickets amounts to transfer of actionable claim
 o The right to recover insurance money, the right of a partner to sue for
accounts, claim for arrears of rent and the right to credit in the provident fund
have been held to be actionable claims.
o An actionable claim is therefore an incorporeal real right
o Every claim is not an actionable claim, for it to be an actionable claim it must
be a claim either to a debt or to a beneficial interest in movable property
 Notice
o A person is said to have notice when
 When he actually knows the fact or
 When but for (a) Wilful abstention from an inquiry or search which he
ought to have made, or (b) gross negligence he would have known it
o Notice means information or knowledge of an act
o Notice can be actual notice or constructive notice
o Actual Notice or express Notice
 When a person actually knows a fact, it is said that he has actual notice
of the fact.
 In order to constitute a binding notice, actual notice must be a definite
information, given by a person interested in the thing in respect of
which the information is given
 A notice in order to be binding must proceed from a person interested
in the thing
 Information or knowledge must be given at the time of the transaction
because prior information and information given after the transaction
both are irrelevant
o Constructive Notice
 Constructive notice is the equity which treats a man who ought to have
known a fact as if he actually does know it
 A person has constructive notice of all the facts of which he would
have acquired actual notice had he made those inquiries which he
ought reasonably to have made
 It is the knowledge which the court imputes to a party upon a
presumption so strong that it cannot be allowed to be rebutted that the
knowledge must have been communicated. Such a presumption can
arise only in such a case where the party seeking the benefit of that
doctrine has acted innocently. The doctrine of constructive notice
cannot be applied where the party seeking its benefit has been guilty of
fraud or secrecy in the transaction
 In simple words, it may be said that constructive notice is such a
situation where a person does not know anything about a fact but the
court presumes or treats that under the circumstances the person must
have knowledge of that fact. Such presumptions are called legal
presumptions. Therefore, it may be said that constructive notice is like
a provision of law the knowledge of which cannot be denied by a
person. This legal presumption of constructive notice arises from the
following circumstances:
(a) Wilful abstention from enquiry or search
 - Here the person wilfully or intentionally refrains from making
any enquiry or search because probably he intends to avoid the
probable consequences of the act which he might have come to
know.
- Similarly, if a purchaser omits to inspect the contents of a title
deed, he may be affected by notice of all the facts which he would
have discovered upon title investigation
(b) Gross negligence
- Negligence may be stated to be the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do
- The real difference between gross negligence and ordinary negligence
is to be found in the extent of the duty to take care imposed in either
case. For example, when a person is buying a property and he is told
that title deeds of the property are with a bank for safe custody, he
should inquire from the bank because if it turns out later that the deeds
were actually pledged with the bank, it will amount to gross
negligence.
- only gross negligence binds a party by notice
- The distinction between wilful abstention and negligence is the
existence of a mental advertence to the consequence of an act in one
case and the absence of such advertence in the other
(c) Registration of instrument (Explanation I)
(d) Actual possession (Explanation II) (e) Notice to agent (Explanation
III
- Tillakdhari v. Khedadas
- omission to check the registration of the registrar amounts to gross
negligence
o Lloyd Banks v. PF Guzdar
o Conflicting claims of 2 banks – A and B – defrauded by X.
o Bak B was vigilant and had taken care of their interests in a reasonable manner
o Bank A’s conduct tainted with gross negligence, as they parted with papers
which were the security for the loan.
o Unless mind of person was in some way being brought to an intelligent
appreciation to the nature of the thing, there can be no notice
o The knowledge of notice must be definite and not hearsay or rumoru
 Anand Bahera v. State of Orissa
o Title deed is assigned to some person and the land has a house on it therefore
land along with the house gets transferred
o The Court held that the Chilka lake is an "Immovable property" as per the
Section 3(26) of General Clause Act and Fisheries are the "Benefits Arising
out of Land". Right to enter the land and carry-on fishing for the purpose of
business is also regarded as "Benefits arising out of land" or "Profit a
prendre". In this case "Benefits Arising out of land", i.e Fisheries are
considered as "tangible immovable property" then the property was over
 Rs.100 in value and such "sale of property" should be registered under the
Section 54 of Transfer of Property Act. Since there was no Registration of the
contract by the petitioner as per Sec 54 of TP Act and purely based on oral
agreement, he has no fundamental right over the property.
 Lala Kundan v. Mushrafi Begum 1939 (Attestation)
o In Kundan Lal v. Musharaf Begum, the executant was a pardanashin lady and
was sitting behind a thin curtain when the attestors signed. The P.C. held that
the attestation was valid as the executant, if so minded, could have seen the
witnesses, even if she did not actually see them, through the curtain. It is
tantamount to say that an attesting witness should sign his name in the
presence of the executant.
 Case – Bank of Bombay v Suleman
o The sons from second wife contended a claim over the property, and that bank
should be considered to have constructive notice of the same, but bank
pleaded ignorance. Bank guilty of wilful abstention from making an enquiry.
 Nawal Kishore v. Haji Abdul Gafur Haji Hussenbhai
o All intending purchasers of the property in municipal areas should have
constructive knowledge in tax.
Section 4: Enactments relating to contracts to be taken as part of Contract Act and
supplemental to the Registration Act.—The chapters and sections of this Act which relate to
contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872).
 Section 4 says that the Chapters and section of this Act which relate to contracts shall
be taken as part of the Indian Contract Act, 1872. This is so because after the making
of a contract for a transfer of property which is valid under the Contract Act that a
stage is set for its enforcement under the Transfer of Property Act, 1882.
Section 5: "Transfer of property" defined.— In the following sections "transfer of property"
means an act by which a living person conveys property, in present or in future, to one or
more other living persons, or to himself, 2 [or to himself] and one or more other living
persons; and "to transfer property" is to perform such act. 2 [In this section "living person"
includes a company or association or body of individuals, whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force relating to transfer
of property to or by companies, associations or bodies of individuals.
 a means by which a living person conveys property, in present or in future to one or
more living persons, to himself or to himself and one or more other living persons,
such an act is deemed to be a transfer of property
 transfer of property is an act of conveyance
o for TOP the property must be handed over to other person
o it is not necessary that the owner of the property must handover the property
o it is not necessary that all the right be conveyed
o the document of transfer must show change of ownership
o the property through conveyance can be affected in 5 ways- sale, mortgage,
lease, exchange or gift.
 Conveyance is affected through living persons
 o The conveyance must be done by one living person to another living person
o These living persons include companies, associations or bodies of individuals
whether they are incorporated or not
o Both the transferor and the transferee must be living at the time of the transfer
o Dedication of property to the deity does not come within the purview of this
act
 Property may be conveyed either to one or more other living persons, or to himself, or
to himself with one or more other living persons
o Previously the transferor could transfer his property to other living persons or
to himself and one or more other living persons but not to himself alone. This
created difficulties for those persons who wanted to settle their property into
trusts and declared themselves to be the sole trustee. To overcome this
difficulty, the Amendment Act of 1929 added the words "to himself".
o Now the author of a trust can declare himself to be a sole trustee of the trust
property.
 Property may be transferred either in future or in present.
o This means that the transferor may transfer the property either with immediate
effect or to be effective from a future date.
o Immediate transfer- property transferred with immediate effect
o Future case- transferred from date written on the deed
 Case: Jugal Kishore v. Raw Cotton Co Ltd.
o Court holds that future qualifies the word conveys and not the term property. A
transfer is a conveyance of such property that must be in existence at presence
but its conveyance may take place in future as well. (conveyance of existing
property in future). Property to exist on the date of transfer of property. Also,
transfer of non-existent property or future property acts as a contract and
comes into play as soon as property comes into existence.
 Definition of Property
o Includes properties of all descriptions
o Includes movable, immovable, tangible and intangible
o Property is a bundle of rights
o transfer of property means passing of a right in the property from one person
to another
o A transfer of future property is not valid in India but a conveyance of such
property may be valid as a contract to assign
 Partition
o Partition is not a transfer of property but it is the partition of interests of
several co-owners of a joint property
o Not covered by TPA as already interest and only division and not transfer
perse.
o Hindu joint family: each coparcener has antecedent title, a right to possess and
enjoy it and a collective right to alienate it.
o After partition, share specified and individual rights given
o Division of property but no divesting or vesting of any right in favour or
against the owner
 o Hence not a transfer – no acquisition of property in another by independent
right
o Case: VN Sarin v. Ajit Kumar – Partition is only dividing and not transfer
o A joint family comprised of father and 2 sons. Bungalow was
partitioned, each coparcener got 1-3rd. A got the portion which was in
occupation of a tenant. A filed a suit for his eviction.
o The court held that partition does not amount to transfer but only
signify the surrender of a portion of a joint right in exchange for a
similar right from the other co-sharers
o
 Dissolution of Partnership and Distribution of Assets amongst Partners
o distribution of the assets of the firm and receipt of respective shares by
partners does not tantamount to a transfer.
o The deed of dissolution and consequential deed by release could not be treated
as a conveyance because the releasers have no rights to property at the time of
release
 Surrender
o Surrender is not a transfer of property under section 5 of the Transfer of
Property Act.
 Compromise
o Compromise means an agreement for settlement of doubtful claims between
the parties in respect of some property. It is also not a transfer
 Relinquishment
o A relinquishment is extinguishment of a right, therefore, it cannot amount to a
transfer. A relinquishment by a reversioner of his reversionary interest does not
amount to transfer
 Family arrangement, Settlement
o Family arrangement is an agreement by the members of the family to divide
and hold the family property separately in accordance with the agreement.
o In family arrangement there is neither creation of any new title or interest in
favour of any member nor there is any conveyance, therefore, it cannot be a
transfer
o Family settlements regarding property cannot be challenged. Even if bona fide
disputes are present or possible, which may not involve legal claims, are
settled by a bona fide family arrangement which is fair and equitable, the
family arrangement is final and binding on the parties to the settlement.
o Case: Sahu Madho Das v Pandit Mukund Ram (1955)
o Family settlement is an informal arrangement merely for the benefit of the
family. Not transfer of property as it simply acknowledges and defines the title
of each member and does not create a new title.

 Settlement compared with Will

o Deed is a will and not a settlement
o No transfer
 Charge
 o The creation of a charge does not involve conveyance of any interest in the
property of another. It only secures payment out of certain properties. A charge
is, therefore, not a transfer of property.
 Easement
o Section 4 of the Easements Act, 1882, defines easement as "a right which the
owner or occupier of certain land possesses as such for the beneficial
enjoyment of that land, to do and to continue to do something or to prevent
and continue to prevent something being done in upon or in respect of certain
other land not his own."
o No conveyance is done in an easement, therefore, easement is not a transfer of
property
 Future property is that property which will come into existence in future. If a contract
to transfer future property is made, it will not be enforced before the property comes
into existence. The contract to transfer future property will be specifically performed
only on coming into existence of that property.
 The provisions of Transfer of Property Act, 1882 are inapplicable to testamentary
successions which are governed by Indian Succession Act, 1925. A transfer is a
conveyance of an existing property by one living person to another

Section 6. What may be transferred.—Property of any kind may be transferred, except as

otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature,
cannot be transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any
one except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage.
(d) An interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him. 4 [(dd) A right to future maintenance, in whatsoever manner arising,
secured or determined, cannot be transferred.]
(e) A mere right to sue 5***cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before
or after it has become payable.
(g) Stipends allowed to military 6 [,naval], 7 [air-force] and civil pensioners of 8
[Government] and political pensions cannot be transferred.
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected
thereby, or (2) 9 [for an unlawful object or consideration within the meaning of section 23 of
the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be
transferee]. 10
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable
right of occupancy, the farmer of an estate in respect of which default has been made in
paying revenue, or the lessee of an estate under the management of a Court of Wards, to
assign his interest as such tenant, farmer or lessee.
Comments:
- All property is transferable except when
 1. Either TPA expressly states
2. Other laws says so
- Property and interests in property as a general rule are transferable
- Maxim: alienation rei prefertur juri accrescendi (rule of transferability)
- Law favours alienation to accumulation
10 exceptions to the general rule of alienability of the property are:
A. Assignment of after-acquired property under common law
o Property which at the date of the assignment is either not in existence or not the
grantor’s property, is not transferable at common law, unless the grantor already
has potential property in it as its present owner or possessor of that which is
expected to produce it.
o HEIR APPARENT– nemo est heres viventis (a living person does not have an
heir). An heir is the person who succeeds to the property of another on his death.
o Through will or intestate (no instructions)
o CHANCE – in case a person hopes to succeed to the property through intestate
then the way and the quantum Is ascertained at the time when owner dies.
o Who will be the heir and whether he can inherit – never known before the death.
o Term apparent – a probability or a possibility, and transfers based on rare chances
o Hence this chance of an heir apparent succeeding, or chance of obtaining the
legacy on death of kinsman (getting the property through a will) or any future
prob of like nature cannot be transferred
 Spec Successionis is void ab initio
 The chance of heir apparent to succeed to the property of an intestate cannot be
transferred – this chance also called spec successionis. (intestate- not having made
a will before passing)
 If a person transfers this chance, the status of this transfer is void ab initio
Case: official assignee madras v Sampath Naidu
- A mortgage executed by an heir apparent was held as void by the court even though he
subsequently acquired the property as an heir.
Case: Collyer v Issacs
- As soon as the assignor acquires the legal interest, the equitable interest passes to the
assignee, equity treating as done that which ought to be done. Under English law, even
though the transfer of an expectancy is void, still in equity the assignment of an
expectancy for consideration is valid, subject to rules of estoppel.

B. A right of re-entry:
 - A mere right of re-entry for breach of a condition subsequent cannot be transferred to
anyone except the owner of the property.
- Where the transferor transfers the property subject to a condition that upon transferee
committing a breach of condition of the agreement, the transferor would have a right to
enter the premises – but this is not transferable right.
- Right to owners of the property. It is attached to interest of land.
Case: In Re-Davis & Company Ex Parte Rollings:
C. Easement
- A right which the owner or occupier of certain land possesses for the beneficial
enjoyment of that land, to do or continue to do something, or to prevent and continue
to prevent something in respect to a land that is not his own.
- Enjoyment of a property or part of it of others – profits a pendre
- Property/ land for beneficial enjoyment over which right of easement exists is
dominant heritage – owner of right is the dominant owner
- Servient heritage – property which is used to get benefit of dominant heritage. – land
on which the liability is imposed
- Not a personal right, it is attached to the property (dominant heritage) and hence
cannot be transferred without transferring DH.
- Does not touch the creation of new easements
Case: Sital Chandra Choudhary v. AJ Delanney (1916)
D. Interest restricted to personal enjoyment of owner
- Right is personal hence untransferable
- Like right of pre-emption, two brothers having conditions while selling their property
- Maxim: per extra commercium (things beyond any trade or transaction)
Case: K Balakrishnan v. K Kamalam (2004)
DD. Right to future maintenance
- In whatsoever manner arising, Secured or determined cannot be transferred
- Right of a woman under a decree, or under a will, or compromise – personal right
- Neither transferable nor can be attached by a court decree
- A bare corporeal and personal right of future maintenance is inalienable
- Added by 1929 amendment – arrears are transferable not maintenance

E. Right to sue
- Mere right to sue cannot be transferred – mere means transferee has acquired no other
interest that a bare right to sue
- Personal right that only aggrieved party can exercise
- Amount is uncertain and unliquidated
- In tort – not transferable but in contract – yes
- Preliminary decree to sue from court can be transferred
Case: Sunder v Ramdas 2013
 - Right to sue for damages concerning defamation cannot be transferred in favour of
another person and a pauper application filed at the instance of this other person
wouldn’t be maintainable.
Case: Mcdowell & Comp Ltd. v. Dist Reg Vishakapatnam
DECREE – a decree is transferable – doubttttt
F. Offices and salary
- Public office or salary of a public officer cannot be transferred as they have dignity
- Salary Is return of his personal services, neither transferable nor attachable.
- In case of private, salary due or payable is transferable.
Case: Amanthayya v. Subba Rao (1960)
G. Stipends:
- Military, naval air force and civil pensioners of the govt and political pensions cannot
be transferred.
- Political pension paid to political prisoners, treaty pension granted

H. 3 things –
1. No transfer opposed to the nature of interest:
o Things dedicated to public or religious uses
o Regalia, heirlooms and debutter property
o Air above and land below
2. For unlawful object or consideration within S. 23 IC
o Opium, brothel, gambling, cannot be done on a land
o Prohibit transfers where object is unlawful or opposed to public policy
3. Transfer to a person legally DQ
o Dead, unsound mind, cannot be a transferee
o To prevent judicial burdens
o Minor not DQ to be a transferee
I. Statutory prohibition on transfer of interest
- Right of occupancy - A tenant having an untransferable right of occupancy
- This section is irrelevant now

Section 7: Persons competent to transfer. —Every person competent to contract and entitled
to transferable property, or authorised to dispose of transferable property not his own, is
competent to transfer such property either wholly or in part and either absolutely or
conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed
by any law for the time being in force.
 Persons competent to contract
o Competency to contract has been defined under Section 11 of the Contracts
Act: Section 11 says that every person is competent to contract— (a) who is of
the age of majority according to the law to which he is subject, (b) who is of
sound mind, and (c) is not disqualified from contracting by any law to which
he is subject.
 Age of minority
o Generally the age of majority is 18, except when a guardian of minor's person
or property has been appointed by the court, in which case it is 21. The age of
majority is to be determined according to the law to which a person is subject.
o Sadiq Ali Khan v. Jay Kishore
 Transfer to a minor and subsequent ratification is also a void transfer
 Sound Mind
o According to section 12 of the Contract Act, 1872, a person is said to be of
sound mind for the purpose of making a contract, if at the time when he makes
it, he is capable of understanding it and of forming a rational judgment as to its
effect upon his interest.
o A person who is usually of unsound mind but occasionally of sound mind,
may make contract when he is of sound mind.
o A person who is usually of sound mind but occasionally of unsound mind,
may not make a contract when he is of unsound mind.
o Unsoundness leads to legal disqualification
o Idiocy – incurable and permanent in nature – can’t be a transferrer as he does
not understand the nature of the transfer – completely incompetent
o Lunacy can happen in intervals as well – lucid interval or period where if
transaction takes place then it is valid
o In case of Alzheimer’s = they come back to their lucid interval and now they
are cleared – now he transfers all property without any consideration = then it
is valid transfer
o There should be a decree where the court has declared you to be of unsound
mind
o Mc Naughtten rule applied in such cases but not specifically TPA case
 Disqualified from contracting
o Person disqualified from contracting cannot transfer property
o Valid conditions for transfer:
(a) The property must be a transferable property. Section 6 of the transfer of
property contains certain exceptional cases where property is not
transferable.
(b) The transferor must be competent to contract. Transferor must be a living
person at the time of transfer. He may be a human being or a juristic
person like company or associations, etc. He must be an adult of sound
mind and must not be disqualified to contract by any law to which he is
subject.
(c) Transferee must be a living person at the time of transfer. The Act has not
laid down any criteria for the competency of the transferee. He must be a
human being or a juristic person. Section 6(h)(iii) provides an exception.
Judges, legal practitioners or officers connected with any court of justice
are incompetent transferees in dealings of actionable claims.
(d) The transferor must have the right to transfer the property being
transferred. He must be entitled to transfer the property or authorised to
dispose of the property (to be transferred), if it is not his own. 77
 (e) The transferor may transfer the property either wholly or partly and either
absolutely or conditionally. All the formalities prescribed by the Act must
be complied with. The property must be transferred in the manner
provided by the Act.
 Transfer in favour of Minor
o A minor being incompetent to contract cannot transfer a property.
o Section 7 gives only the competency of a transferor not that of a transferee.
Section 6(h)(iii) says that a person legally disqualified cannot be a transferee.
Nowhere it is said that the transferee must be a competent person in respect of
his age, soundness of mind etc. Only he must be alive at the time of transfer.
Therefore, a minor can accept transfer of property in his favour. He can be a
mortgagee
 Person authorised to dispose of property
o Any person who is authorised to dispose of the property is competent to
transfer it too.
o Example may be taken of a Karta of Hindu joint family, a guardian, a trustee,
an executor or administrator, etc.
o A tenant cannot transfer the tenanted property because he is not the owner of
the property. Similarly, a person authorised for collecting rents and managing
an estate of the landlord is not empowered to transfer the land as the landlord's
agent
o Property cannot be sold through power of attorney
 Maxims: Nemo dat quod non habet – no person can give what he doesn’t have
 Judgement debtor – one person who wins the case – decree holder and the person who
loses the case will be the judgment debtor and he has to pay certain amount to holder
and he might be restricted by the court to transfer any property until and unless he
pays off the debt to the holder,
 Attaur Rahman Fateh MD v. Hari Virand
o Person not holding transferbale interests in the property cannot transfer it. The
transferee is not bound by such an agreement, aggravated by the transferrer.
 UOI v. State of Uttarakhand
o the government was transferring a property to bazaar but could not do so
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. Such incidents
include, where the property is land, the easements annexed thereto, the rents and profits
thereof accruing after the transfer, and all things attached to the earth; and, where the
property is machinery attached to the earth, the moveable parts thereof; and, where the
property is a house, the easements annexed thereto, the rent thereof accruing after the
transfer, and the locks, keys, bars, doors, windows and all other things provided for
permanent use therewith; and, where the property is a debt or other actionable claim, the
securities therefor (except where they are also for other debts or claims not transferred to the
transferee), but not arrears of interest accrued before the transfer; and, where the property is
money or other property yielding income, the interest or income thereof accruing after the
transfer takes effect.
  Section 8 states that when transferring property, unless stated otherwise, the transfer
passes all the interests and legal aspects that the transferor currently has in the
property to the transferee.
 The principle underlying the section is that accessory follows the principal thing
 Need to check the intention and nature of both the parties
 Incidents – right of enjoyment of the property – literal meaning – all the things
naturally attached to your property are legal incidents
 Transferring this institution then the obvious transactions would include the buildings
and all.
 All of the things so attached all goes away and if there are certain rights they all come
with the transfer, unless specifically and expressly provided.
 This section is saying whatever your property is – you have the incidents and rights
attached to it – from transferor to transferee, those rights flow naturally and hence it
need not be specified in the contract itself – it is but obvious where an agreement does
not mention that the nut-bolts and the windows will go, it is implied and presumed
that they are added – otherwise expressly mention that you don’t want to transfer it
otherwise every single fixture goes
 Intention should be easily assumed that the agreement is about – now a couple of
pointers
 Unqualified and unconditional transfers – without any conditions, or restrictions – this
property is sold or transferred to the other person – so no conditions or restrictions –
Section 8 says whatever fixtures are there – like if there is rent or easement rights then
those are also transferred – only if the intention is contrary – then the contract terms
can be modified
CASE 1 = Harbans Singh v Taka Moni Devi (AIR 1990 Pat.26)
CASE 2 = ITC ltd V. Blue coast hotels and others (AIR 2018 SC 3063)
Transfer done but no consideration – it can come under gift – so would all the rights would
go with the transfer – yes it will because of Section 8. Even in exchange and gift cases – all
the rights and interests are transferred
Right to exploit, dispose, enjoy, easements – natural consequence of any land being
transferred – LAND – definition – things so attached, annexed – then these are transferred –
legal encumbrance that is accrued before the transfer – these are not transferred – unless
expressly provided – this accrued rent or profit before the date of transfer – does not get
transferred as a legal presumption.
CASE 3 = Vishwanath v Ramraj (AIR 1991 ALL.193)
CASE 4 = Sham Sundar Ganeriwala v Delta International ltd (AIR 1998 Cal.223)
Intimation of language of agreement – if it is clear and unambiguous then section 8 applies
directly, clear general rule of transferring hers, trees etc
Vice versa is not true – like if u transfer the tree then there is no legal presumption that the
tree will also be transferred
Machinery – to be transferred then I will break it down into parts and transport it – if we say
that we wanted to transfer the machinery, not the parts then there will be no use of the
machinery as its utility diminishes – hence natural legal presumption – that the whole
machinery will be transferred
Debts =- actually accrued debts can be transferred – absolute and not uncertain in nature –
loan gets transferred to the transferee unless there is express provision – generally all legal
encumbrances gets transferred along with the property

Principal Incident
Land Easements, rents and profits accruing after
the transfer, all things attached to the earth
machinery Movable parts
House Easements annexed to this, rent accruing
after the transfer, locks keys bars windows
and other things of permanent use

Debt Where property transferred is a debt or an

actionable claim, securities of it will also
pass to the transferee as legal incident of the
property transferred
License
Money or other property yielding income Where the property transferred is money or
other property yielding income, the
transferee is entitled to get the interest on
that money or other income accruing after
the transfer

 Transfer passes whole interest of Transferor

o The general rule regarding transfer is that the transferor conveyed all that he
was possessed of in the property transferred, this may be limited by the
intention of the transferor or the interpretation of the deed of the time
 Legal incidents of transfer
o According to section 8, on the transfer of a property not only all the interest of
the transferor in the property pass to the transferee but also his interest in the
legal incidents of such property
o An incident is a "thing necessarily depending upon or appertaining to, or
following another that is more worthy as rent to incident is a reversion."
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
 Transfer of property can be made without writing in cases where written transfer has
not been expressly mandated
 There are two modes of transfer of property
o Delivery of possession
  Those properties may be transferred by delivery of possession only
where writing is not necessary for transfer.
 Generally the movable properties may be transferred by delivery of
possession.
o Registration
 Where registration is necessary, the transfer must be made in writing.
 According to the Transfer of Property Act, 1882, the following
transactions must be made only through a written document which
must be duly registered: 103
(a) Sale of an immovable property exceeding rupees one hundred
(section 54).
(b) Sale of reversion or other intangible property (irrespective of its
value) (section 54).
(c) Simple mortgage irrespective of the amount specified (section 59).
(d) All other mortgage (except the mortgage by deposit of title-deeds)
securing sums exceeding rupees one hundred (section 59).
(e) Lease from year to year, or for a term exceeding one year or
reserving a yearly rent (section 107).
(f) Exchange of immovable property exceeding one hundred rupees in
value (section 118).
(g) Gift of an immovable property (section 123).
(h) Transfer of actionable claims (section 130) (where only writing is
sufficient, registration is not necessary).
 V Ethiraj v. Sridevi: In the case of V. Ethiraj v. Smt. S. Sridevi (2014), a person
purchased the property knowing that the seller has only partial rights to the said
property. This breached the competency rule, and the Karnataka High Court held it to
be an invalid sale of the property.
10. Condition restraining alienation.—Where property is transferred subject to a condition
or limitation absolutely restraining the transfer ee or any person claiming under him from
parting with or disposing of his interest in the property, the condition or limitation is void,
except in the case of a lease where the condition is for the benefit of the lessor or those
claiming under him: provided that property may be transferred to or for the benefit of a
woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power
during her marriage to transfer or charge the same or her beneficial interest therein

Comments:
- Owner can dispose off the property in any manner even though the previous owner
said not to transfer it further
- Partial and absolute restraint
- Condition void – section 10, 11, 12 and 17
- Absolute restrain to transfer – time (lifetime of a person – void), specified person –
transfer to one person only – void or within the family (partial restrain – valid)
- 4 categorisations of restraints – particular time, control over consideration,
person/transferee, sale for particular purposes
Case: SyedMohammad raza v. Abbas Bandi Bibi (1932)
 - Cant transfer property outside family is a valid restraint
Case: Manohar Shiv Ram Swamy v. Mahadeo Guruling Swami (1988)
- Transfer to first cousin – valid
Lease is an exception of this section as condition can be applied to it because owner must
have right to let his property in any way he wants.
Case: Raghuram Rao v. Pandit Sreenivas (2012)
- Right of reversion was transferred to someone else
Proviso – other than Hindu, Muhammadan or Buddhist, married women cannot alienate
from their property, it cant be transferred in their husband or in laws name. it is to protect
their interest.
- Even if the transferee expressly consents to abide by the terms of contract where there
is absolute restraint, this condition being void under Section 10, he is entitled to ignore
it, contravention of this condition does not affect the validity of the original transfer.
Conditional transfers:
2 types – 1 - Where condition has to be complied before a transfer could be effected, 2 –
where condition is to be fulfilled after the transfer is complete.
Former case – condition precedent – only if the condition is complete, then the transfer takes
place, if condition unlawful, immoral then the transfer also becomes void. (prospective
transferee ignores or fails the condition, no transfer)>
Latter case – condition subsequent – after the transfer takes place and the interest is with
transferee – S. 10 talks about this condition. Here – if the transfer is subject to a condition
that prevents the transferee from disposing of property, the condition becomes void but the
transfer remains valid. The fulfilment of condition not binding on the transferee.
- Power of alienation (disposing) is one of the basic rights of the owner and an attempt
to encroach upon them or control it is statutorily prohibited

 Conditions can be of two types, condition precedent and subsequent

 If the transfer is condition precedent then it is void
 If the transfer is condition subsequent then transfer is valid but condition is void
 What is partial restraint
o Absolute restraint- it says transfer only to one and not to others
o Partial restraint- transfer to anyone except single group of people
o Statutory restraint- to protect the vulnerable section, for public policy and
protect their interest

 Personal Laws
 o Hindu and buddhist have made laws against alienation
 Property A and chowk and then property B. A transfers property to C. The chowk is
for common use. B says to C you cant use the chowk for any other reason except the
commercial use. Is there a valid condition? – it is an invalid condition since the
contract of sale was b/w A and B and not C. the absolute interest was transferred and
hence, he can’t be stopped from using the common property as he likes. Beneficial
enjoyment – exception to all this general rule
 Absolute restraint is when period of time is very much
 For partial restraint period of time is short (6 months)
 When the transfer is restricted to particular family members to protect heritage then it
is partial heritage
 Mohd. Resa v. Abbas Bidi
o Limitation as to no transfer of property to stranger only transfers to families
o Held to be a valid condition
 Manohar Srinivas Swami v. Raja eo Guruling Swamy
o Transfer to the cousin (well within meaning of family) held to be a valid
condition
 Mata Prasad v. Nagashwar Sahay
o Property dispute between 2 brothers after death the property would revert back
to person
o Scope of topa limited to transfer not including family arrangement and hence
held to be a valid condition
 Lease
o No absolute transfer of interest takes place
o So the conditions of a lease are valid
 Lease in perpetuity
o Can lesee sell of property? NO
o He does not have absolute ownership and transfer cannot be carried out
without ownership therefore not valid
 What happens if sold by subsequent transferee?
o lessor has no right to eject
o he can only claim damages for breach or file for an injunction
o Raghuram Rao v. Emathias
 Lease transfer is limited interest
 Hence restraint as to sale is a valid condition
o Raghunath Bali v. Pandit Srinivas
 Right o resale of reversion is a valid transaction
11. Restriction repugnant to interest created.—Where, on a transfer of property, an interest
therein is created absolutely in favour of any person, but the terms of the transfer direct that
such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to
receive and dispose of such interest as if there were no such direction. 1
[Where any such direction has been made in respect of one piece of immoveable property for
the purpose of securing the beneficial enjoyment of another piece of such property, nothing in
this section shall be deemed to affect any right which the transferor may have to enforce such
direction or any remedy which he may have in respect of a breach thereof.]
 Section 11 deals with , the restrictions on the enjoyment of absolute interest
 When a person transfers absolute interest in a property to any other person, he gives
all the rights of managing, enjoying and disposing of that property. But where along
with the transfer of absolute interest he includes restriction restraining the enjoyment
of property, such a restriction will not be considered valid and it will have no effect.
Once an absolute right has been conferred on a person as to a property, then no rider
can be put on enjoyment of that property
 Transfer of absolute interest means transfer of ownership
 Ownership includes all the incidents of ownership and therefore if any restriction is
imposed it will not be full ownership
 This section comes into play when two conditions are satisfied: (i) An absolute
interest is created by the transfer in favour of the transferee, 126 and (ii) the terms of
the transfer provide that the interest in the property shall be applied or enjoyed in the
manner prescribed by the transferor.
 Eg: where only a life interest is created in a farm in favour of another person and the
deed contains a direction that the transferee shall not cut down the trees, such a
direction will be a valid direction because here absolute interest is not transferred.
 This section is not applicable where only the partial interest is transferred because
partial interest does not transfer the full ownership to the transferee. T
 Exceptions
o If a directive limits how one piece of the transferor's property can be enjoyed
for the benefit of another property, such a directive is considered valid.
 Case: Roshan Lal v Manoj Kumar (AIR 2015 RAJ.71)
o Cannot bind the subsequent transferee to act out the way the previous owner
acted. Such conditions void and their effect null.
o Exception – original transferor A wants to transfer property to C. a is the
transferor and the owner of the adjacent land – but he only sells one of the
property and not the adjacent one – transferor can put restriction on transferee
to derive benefit out of it. If A wants to enjoy his own property or a negative
way to restrict the beneficial enjoyment of the property.
 Case – Tulk v Moxhay (1848 41ER 1143)
o 1st condition – if the transferor puts a positive or negative covenant for the
beneficial enjoyment of his adjacent land – then it is valid covenant.
o 2nd condition – wherever there is subsequent transferee – as long as there is a
notice about the covenant after the consideration for the transfer is completed
– it is binding.
 o Only negative covenants become binding on all the subsequent transferees.
o Maintenance terms – will be a positive covenant while easement terms will be
negative covenants.
o 3rd thing – if transaction gratuitous (like a gift) – with and without notice –
negative covenants are binding
o Subsequent assignee – this assignee continues to derive the previous benefits
derived by A. there were 2 conditions on C by A. the subsequent assignee cant
come and put more conditions on C.
o S. 40 and S. 11 are linked – there is an exception under S. 40.
 Case – Indu Kakkar v Haryana IDC ltd AIR 1999 SC 296
o Invalid and valid conditions – it is valid – because here the sale did not happen
the absolute interest didn’t transfer – u can’t presume that the ownership was
also transferred

 Andhra Pradesh Industrial Infrastructure Corp. Ltd. and Ors. vs. SN Rajkumar
and Anr. AIR 2018 SC 1981
o Industiral unit sold to a person. Allotment letter said that the construction must
be completed in a timely manner, otherwise the allotment shall stand
cancelled. Such a condition shall stand void because it is repugnant to the
absolute right that is created in favour fo the transferee. (Read along with Indu
Kakkar case).
12. Condition making interest determinable on insolvency or attempted alienation. —
Where property is transferred subject to a condition or limitation making any interest therein,
reserved or given to or for the benefit of any person, to cease on his becoming insolvent or
endeavouring to transfer or dispose of the same, such condition or limitation is void.
 This section says that where a property is transferred subject to a condition that the
interest created thereby shall cease to exist on transferee becoming insolvent or on his
attempting to transfer it, the condition is void.
 Two types of conditions are invalidated by this section:—
(i) Conditions which provide that the interest of the transferee will cease to exist
when the transferee becomes insolvent, and
(ii) Conditions which limit or restrict any attempted transfer by the transferee
 Insolvent Transferees
o Where a person is adjudged insolvent his properties vest in the Official
Receiver.
 Not applicable to Leases
o This section does not apply to a condition in a lease for the benefit of the
lessor or those claiming under him. In case of a lease, there is transfer of
partial interest only.
o The lessor who is the owner of the property retains his jus dispodendi or the
right to dispose of the property. Therefore, a lessor may impose a condition on
the lessee upon the non-fulfilment of which the lease will be liable to be
cancelled.
  Provision under the Indian Succession Act
o The corresponding section in ISA is S138
 Hindu and Muslim Laws
o Both the Hindu law and Muslim laws have recognised the invalidity of
conditions in restraint of enjoyment of propert

Section 13 Transfer for benefit of unborn person.—Where, on a transfer of property, an

interest therein is created for the benefit of a person not in existence at the date of the transfer,
subject to a prior interest created by the same transfer, the interest created for the benefit of
such person shall not take effect, unless it extends to the whole of the remaining interest of
the transferor in the property.
Illustration: A transfers property of which he is the owner to B in trust for A and his intended
wife succesively for their lives, and, after the death of the survivor for the eldest son of the
intended marriage for life, and after his death for A's second son. The interest so created for
the benefit of the eldest son does not take effect, because it does not extend to the whole of
A's remaining interest in the property.
 Section 13 provides that the property cannot be transferred directly to an unborn
person but it can be transferred for the benefit of an unborn person. For transfer of
property for the benefit of unborn person two conditions are required to be fulfilled:—
(i) Prior life interest must be created in favour of a person in existence at the date
of transfer, and
(ii) Absolute interest must be transferred in favour of unborn person.
 Prior Interest
o It is necessary for a valid transfer of property to an unborn person that before
the transfer actually takes place, a prior interest must be created in favour of a
living person on the date of transfer
o The unborn person must be in existence when the prior interest comes to an
end
o For example, A transfers his properties to X for life, then to Y for life and then
to Z for life and thereafter to the unborn child of Z. Here X, Y and Z are living
persons. The property may be given to more than one living persons
successively for life before it vests in an unborn child ultimately.
 Absolute Interest
o It is further necessary that whole of the remaining interest of the transferor in
the property must be given to the unborn person.
o Only absolute interest may be transferred in favour of the unborn person and
not limited or life interest, i.e., the whole of the remaining interest is the entire
interest of the transferor less the prior life interest carved out of the ownership
o In the illustration to the section, the transfer to unborn person (eldest son)
becomes void because it does not give the whole of the A's remaining interest
in the property to unborn person, only a life interest is given to the eldest son.
14. Rule against perpetuity.—No transfer of property can operate to create an interest which
is to take effect after the lifetime of one or more persons living at the date of such transfer,
and the minority of some person who shall be in existence at the expiration of that period, and
to whom, if he attains full age, the interest created is to belong.
 Perpetuity means continuous or unending transaction. It is tying up property for an
indefinite period
 Transfers involving generation after generation are known as creating perpetuities
 A perpetuity is a future limitation
 Essentials of Section 14
(1) There should be a transfer of property.
(2) Transfer is to create an interest in the favour of an unborn person.
(3) Interest so created should take effect after the life-time of one or more
persons living at the date of such transfer and during the minority of the
unborn person.
(4) The unborn person should be in existence at the expiration of the interest
of the living person.
The unborn person is the one in whose favour the interest is created. This
vesting of interest in favour of the ultimate beneficiary is preceded by life
interest of one or more living persons. Life interest is always a limited interest.
It is necessary that the ultimate beneficiary must come into existence before
the death of the last preceding living person. The vesting of interest in favour
of ultimate beneficiary may be postponed only to the life or lives of living
persons and minority of ultimate beneficiary but not beyond that.
 Perpetuity Period
o The question arises what is perpetuity period, i.e., the maximum period during
which the property may be rendered inalienable.
o According to section 14, the maximum permissible remoteness of vesting is
the life of the last preceding interest plus minority of the ultimate beneficiary.
o Eg: the owner of a property may transfer it to a living person, A, for life and
after his death to B (a living person) for life and on or before the death of B to
his unborn son when he attains the age of 18 years (or 21 years when the
minor is under the supervision of the court).
o Therefore, the total period of perpetuity i.e., the period for which the vesting
of property can be postponed is given below: (1) Where the unborn person has
come into existence either at or before the expiry of the last prior-interest, his
minority period. (2) Where the unborn person is in womb at the expiry of the
last prior-interest, the period of gestation plus his minority
 Contingent Interest
o The vesting of interest in favour of the ultimate beneficiary may be postponed
till his minority, i.e., till he becomes a major
 Exceptions to the Rule against Perpetuities
o Provision for payment of debt (Section 17).— Where income of a property
is accumulated for the purpose of the payment of debts of the transferor or any
person taking any interest under the transfer, such a direction is not affected by
the rule against perpetuity
 o Charities (Section 18).— Where property has been transferred for the benefit
of the public for advancement of religion, knowledge, commerce, health,
safety etc., the restriction envisaged under section 14 will not apply there.
o Creation of Charge.— A charge does not amount to a transfer of interest in
land, and therefore, it is not affected by the rule contained in section 14.
o Agreement of Sale.— Section 54 of the Transfer of Property Act, 1882 enacts
that an agreement for the sale of land does not of itself create an interest in
land
o Mortgages, Covenant for renewal of lease (not transfer so no perpetuity),
Covenant Running with land (it is free from perpetuity)
 Saundra Rajan vs. Natarajan AIR 1925 PC 244

15. Transfer to class some of whom come under sections 13 and 14.—If, on a transfer of
property, an interest therein is created for the benefit of a class of persons with regard to some
of whom such interest fails by reason of any of the rules contained in sections 13 and 14;
such interest fails 1 [in regard to those persons only and not in regard to the whole class].
 Class of persons
o This section lays down that if in a transfer of property, an interest is created for
the benefit of some class of persons, but due to applicability of either section
13 (transfer to an unborn person) or section 14 (rule against perpetuity) this
interest becomes unavailable to some persons of that class, then, in such a
case, the transfer will be invalid only for those persons and not for others. The
transfer will remain valid for other persons of the class.
o This section was amended in 1929
Section 16 Transfer to take effect on failure of prior interest.—Where, by reason of any of
the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a
class of persons fails in regard to such person or the whole of such class, any interest created
in the same transaction and intended to take effect after or upon failure of such prior interest
also fails
 Transfer when the prior interest is void
o A valid transfer which is subsequent to and dependent upon a void transfer is
itself rendered void
o This section provides that where an interest created for the benefit of a person
or of a class of persons fails due to the reasons contained in sections 13 and 1
Nothing in Chapter II is to be deemed to affect any rule of Muhammadan Law,
see section 2, Act 20 of 1929. 155 Subs. by Act 20 of 1929, section 10, for the
original section 16. 156 Sterling J, Re Abbot, (1893) 1 Ch 54 (57). 157 (1934)
9 Luck 329 . 14 (transfer in favour of unborn person and rule against
perpetuity respectively), any other interest created in the same transaction
which is to take effect after the prior interest also fails.
o Embodies the rule that a limitation following upon a limitation is void for
remoteness
 Prior interest void only due to section 13 or 14
 o This section becomes applicable only when the prior interest is void only due
to rules contained either in section 13 or 14 and not otherwise
o If the prior interest fails due to any other reason given in any other section
then this section will not be applicable
Section 17. Direction for accumulation.—(1) Where the terms of a transfer of property
direct that the income arising from the property shall be accumulated either wholly or in part
during a period longer than—
(a) the life of the transferor, or
(b) a period of eighteen years from the date of the transfer, such direction shall, save as
hereinafter provided, be void to the extent to which the period during which the accumulation
is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned
period the property and the income thereof shall be disposed of as if the period during which
the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of— (i) the
payment of the debts of the transferor or any other person taking any interest under the
transfer, or (ii) the provision of portions for children or remoter issue of the transferor or of
any other person taking any interest under the transfer, or (iii) the preservation or
maintenance of the property transferred; and such direction may be made accordingly.
 Rule against accumulation
o Sub-section (1) of this section provides that where the terms of a transfer of
property direct that the income arising from the property shall be accumulated
either wholly or in part during a period longer than the life of the transferor or
a period of 18 years from the date of transfer such direction shall be void.
o This section provides the limits beyond which a direction for accumulation of
income arising out of the property transferred shall be void. The limits are
given below: (i) the life of the transferor, or (ii) a period of 18 years from the
date of the transfer
 Exceptions
o Payment of debts
o First exception says that this section shall not affect any direction for
accumulation for the purpose of the payment of the debts of the transferor or
any other person taking any interest under the transfe
o Debt maybe an existing debt or a debt arising in the future
o Provision for portions
o The exception says that this section shall not affect any direction for
accumulation for the purpose of the provision of portions for children or
remoter issue of the transferor or of any other person taking any interest under
the transfer.
o A "portion" means a share in the property settled in favour of children or their
issues
o Preservation and Maintanence of Property
o Third exception provides for preservation and maintenance of property.
Accordingly, any direction for accumulation of income for the purpose of
preservation or maintenance of the property transferred is beyond the purview
of section 17.
18. Transfer in perpetuity for benefit of public.—The restrictions in sections 14, 16 and 17
shall not apply in the case of a transfer of property for the benefit of the public in the
advancement of religion, knowledge, commerce, health, safety, or any other object beneficial
to mankind.
 This section contains an exception to the rule of perpetuity and accumulation. These
rules prevent the properties from being tied up for an indefinite period, making them
non-transferable or putting restrictions on their transferability. Keeping the property
tied up for a long period is against the socio-economic policy and is also detrimental
to property itself. Therefore, this section provides an exception that in case of transfer
of property for the benefit of the public in the advancement of religion, knowledge,
commerce, health, safety or any other object beneficial to mankind, such rules of
perpetuity and accumulation will not be applicable. These objects are charitable in
nature.
 Beneficial objects include gift to hospitals, gift for the endorsement of a university,
gift for the establishment and worship of an idol
 Doctrine of CyPres
o In cases where property is transferred for a charitable object but by reason of
the objects being uncertain, or incapable of being carried out in execution, or
the persons who have to take benefit are not in existence, etc., it cannot be
given effect to, in such a situation the court will apply the "doctrine of cy pres"
and carry out the object as near as possible to the original object

Section 19. Vested Interest.—Where, on a transfer of property, an interest therein is created

in favour of a person without specifying the time when it is to take effect, or in terms
specifying that it is to take effect forthwith or on the happening of an event which must
happen, such interest is vested, unless a contrary intention appears from the terms of the
transfer. A vested interest is not defeated by the death of the transferee before he obtains
possession. Explanation.—An intention that an interest shall not be vested is not to be
inferred merely-from a provision whereby the enjoyment thereof is postponed, or whereby a
prior interest in the same property is given or reserved to some other person, or whereby
income arising from the property is directed to be accumulated until the time of enjoyment
arrives, or from a provision that if a particular event shall happen the interest shall pass to
another person.
 According to this section, where on transfer of a property an interest is created in the
property in favour of a person—
(i) without specifying the time when it is to take effect, or
(ii) in terms specifying that it is to take effect— (a) forthwith, or (b) on the
happening of an event which must happen, such an interest, is vested unless a
contrary intention appears from the terms of the transfer.
 A vested interest is not defeated by the death of the transferee before he obtains
possession
 An intention that an interest shall not be vested is not to be inferred merely from a
provision whereby: (i) the enjoyment of the property is postponed, or (ii) a prior
interest in the same property is given or reserved to some other person, or (iii) income
arising from the property is directed to be accumulated until the time of enjoyment
 arrives, or (iv) if a particular event shall happen the interest shall pass to another
person.
 Vested interest is an immediate right to a property. When a vested interest is created
the transfer of property is complete.
 Interest is vested in a person unless contrary intention appears when:
o Where no time mentioned
 A person gets a vested interest in a transfer of property where the terms
do not specify the time when it is to take effect.
 For example, a person sells his house to another person. The purchaser
gets the vested interest from the day of sale though the possession may
not be given to him immediately.
o Where it is to take effect forthwith
 The interest created in favour of the transferee is vested where it is
specified that it is to take effect forthwith, i.e., immediately, without
delay. Where a deed contains such a declaration clearly, the deed
conveys vested interest alone
o On the happening of an event
 The interest is a vested interest where the operation of the transfer is
made to depend upon some specified certain event. The event must be
clearly specified, explained and it must be certain to happen. For
example, death of a person is certain to happen, likewise sunset and
sunrise are bound to happen, etc.
 Time of vesting
o The interest is vested as soon as the transfer is complete
 Contrary intention
o A transfer may not be only in the present but also in the future. However, the
time of vesting cannot be beyond the period allowed by the rule against
perpetuity.
 Death of transferee
o If the transferee dies, his interest vests in his legal representatives, whether or
not he has obtained the possession.
 Vested interest does not depend upon the fulfilment of a condition. It creates a present
and immediate right. The enjoyment may be postponed to a future date.
 A vested interest is transferable as well as heritable.
 A vested interest is not defeated by the death of the transferee before obtaining
possession. The interest passes on to the heirs of the transferee.
 Usha Subah Rao v BN Vishvaswaraiah (AIR 1966 SC 2260)
o Interest is said to be vested when there is immediate right of present
enjoyment or a present right of future enjoyment
o Interest is said to be contingent If the right of enjoyment is made dependent
upon some event or condition which may or may not happen.
 Nature of vested right
o It’s a present fixed right to the property – right has immediately accrued to the
transferee
 o If the condition is certain that it will happen – then it is still the vested right
even though enjoyment may be postponed
o Transferable and heritable in nature – there is never an owner of this right
 Rajesh Kanta Roy v Shanti Devi (AIR 1957 SC 255)
o Heritability of the interest is a test that should be considered for ascertaining
whether interest is vested or contingent – there should be a bias for vested
right – whenever there is a confusion – there should be said that it is a vested
right – so that rights of the parties are not adversely affected – immediate right
will divert to the transferee whenever it is a vested interest
 lal bahadur singh v Rajendra Narayan singh
o Court held that it has T and H nature then we can even attach our vested
interest and sell it off in execution of a decree

20. When unborn person acquires vested interest on transfer for his benefit.—Where, on
a transfer of property, an interest therein is created for the benefit of a person not then living,
he acquires upon his birth, unless a contrary intention appear from the terms of the transfer, a
vested interest, although he may not be entitled to the enjoyment thereof immediately on his
birth.
 According to this section, an interest created in favour of an unborn person vests as
soon as he is born.
 Although the possession may not be given to him immediately on his birth, it may be
postponed but the interest is vested in him when he is born alive.
 Section 20 permits an interest being created for the benefit of an unborn person who
acquires interest upon his birth.
 For example, where A settles his property on himself and his intended wife for their
joint lives and then to their eldest son of marriage, the son takes vested interest as
soon as he is born. He is not entitled to the possession during the lifetime of his
parents. This section contemplates the normal condition in which the unborn person is
born alive. When an unborn person dies within the womb of his mother and is not
born alive, this section does not apply.
 Ram Baran vs. Ram Mohit AIR 1967 SC 744
o Covenant of pre-emption.
 Shivji vs. Raghunath AIR 1997 SC 1917
o Covenant which are running along with land.
 Nafar Chandra vs. Kailash 1921 AC 328
o Charges, mortgages and leases will not affected by these rules.
 T. Venkata Subanna vs. D. Chinna Panaiya AIR 1989 AP 34
 Raj Bajrang Bahadur Singh vs. Thakurain Bhakatraj Kuer
 In Trustee vs. Canterbury: Permissible period of accumulation has three exceptions.
o Debt on property
o Raising portions
o Preservation of property
21. Contingent interest.—Where, on a transfer of property, an interest therein is created in
favour of a person to take effect only on the happening of a specified uncertain event, or if a
specified uncertain event shall not happen, such person thereby acquires a contingent interest
in the property. Such interest becomes a vested interest, in the former case, on the happening
of the event, in the latter, when the happening of the event becomes impossible. Exception.—
Where, under a transfer of property, a person becomes entitled to an interest therein upon
attaining a particular age, and the transferor also gives to him absolutely the income to arise
from such interest before he reaches that age, or directs the income or so much thereof as may
be necessary to be applied for his benefit, such interest is not contingent.
 An interest the vesting of which takes place after the fulfilment of some condition
precedent, till the condition is fulfilled remains contingent.
 In a transfer of property, a person gets a contingent interest in the property when:
(i) the specified uncertain event happens, the happening of which was a condition
for vesting of interest, or
(ii) the specified uncertain event does not happen, the non-happening of which
was a condition for vesting of interest and the event has become impossible to
happen.
 In the case of a contingent interest, the interest becomes vested only when either of
the condition is fulfilled. For example, where A makes a gift to B provided X survives
the age of 25 years, the interest of B is contingent. Where A makes a gift to B
provided X does not survive the age of 25 years, the interest of B again is contingent.
 The main characteristics of a contingent interest may be summarizes as following: (
o The contingent interest is a transferable interest.
o It is not heritable. On the death of a person having contingent interest, his
interest does not pass to his legal heirs, The legal heirs of such a transferee do
not get any interest.
o Death is not an uncertain events but survival at the death of another is an
uncertain event.
o The charge of an heir apparent to succeed to a person as heir or similar
possibilities of a like nature is not "contingent interest" within the meaning of
this section.
Aspect Vested Interest Contingent Interest
(1) Immediate or specified
Definition time effect. (1) Conditional or uncertain event effect.
Fulfilment of (1) Immediate right;
Condition enjoyment can be postponed. (1) Depends on condition; fails if not fulfilled.
Effect of (1) Not defeated by the death (1) Cannot take effect if transferee dies before
Transferee's Death of transferee. condition fulfilment.
Transferable or (1) Transferable but not heritable; fails on transferee's
Heritable (1) Transferable and heritable. death before possession.
Present Right of (1) Present immediate right,
Enjoyment even if postponed. (1) No present right; depends on condition fulfilment.
- Exception for contingent interest with specific
Exception - provisions for income before attaining a certain age.
  Contingent Interest and Spes-Successionis
o The contingent interest and spes-successionis both are future possible
interests. In both, there is a possibility that it may become a perfect title in
future. However, this degree of possibility is lesser in contingent interest. In
case of contingent interest, the property is transferred subject to certain
contingencies which may or may not happen. But spes-successionis i.e., mere
chance of heir apparent depends upon several possibilities like the heir
apparent survives the deceased person, i.e., the propositus, etc.
Case - Shashi Kanta v Promod Chandra (1932 Cal.600)
1. Neither present right or a certain right –
2. not heritable but transferable – unless it is vested It cant be transferred – but then it is
also a heritable interest – imperfect title cant be heritable or transferable
Case – Rajesh Kanta v Roy v Shanti Devi (AIR 1957 SC 255)
Case – Bay Berry Apartment Private Ltd. v Shobha (AIR 2007 SC 226)
Case: Rukhmani v Shiv Ram (AIR 1981

22. Transfer to members of a class who attain a particular age.—Where, on a transfer of
property, an interest therein is created in favour of such members only of a class as shall
attain a particular age, such interest does not vest in any member of the class who has not
attained that age.
 Section 22 deals with transfer of property to a contingent class. It says that an interest
will be created in favour of such members only of a class as shall attain a particular
age.
 The transfer provides that only those members of a class will be given interest who
will attain a particular age. Any member of the class who will not be able to attain that
age will not be given any interest
 For example, a property is transferred to such of the children of A as shall attain the
age of 18. In such a case, no child of A who is less than 18 years of age has a vested
interest in the property.
 Where the class of transferee is certain and known but vesting of interest in favour of
that class is uncertain, this section will not be applicable
 Sopher v Administrator general of Bengal (AIR 1944 PC67)

23. Transfer contingent on happening of specified uncertain event.—Where, on a transfer

of property, an interest therein is to accrue to a specified person if a specified uncertain event
shall happen, and no time is mentioned for the occurrence of that event, the interest fails
unless such event happens before, or at the same time as, the intermediate or precedent
interest ceases to exist.
 The object of this section is to prevent the property from being without owner
 This section contemplates a prior interest and a subsequent contingent interest
 In simple words, In these transfers, the property is given to someone else only after
the current interest ends, and this happens when a certain event occurs. If that event
 doesn't happen before the current interest ends, the new interest has to wait and is not
activated.
 if the subsequent event does not occur at the date of the expiration of the interest –
then the uncertain event does not happen and hence, no transfer happens
Case: Official Assignee Madras v. Vedavalli Thayarammal (AIR 1926 NAD.96)
 In a contingent interest, limited interest is not the only interest which is transferred.
No one can directly transfer property to unborn child, the property will go in
abeyance, he has to vest the interest on someone till the child is born.


24. Transfer to such of certain persons as survive at some period not specified.—Where,
on a transfer of property, an interest therein is to accrue to such of certain persons as shall be
surviving at some period, but the exact period is not specified, the interest shall go to such of
them as shall be alive when the intermediate or precedent interest ceases to exist, unless a
contrary intention appears from the terms of the transfer.
 This section is based on the general rule that if an estate is limited to two persons
jointly, the one capable of taking and the other is not. He, who is capable, shall take
the whole. The interest created in such a case is only a contingent interest which
would become vested only when they survive the owner of precedent interest
 This section says that where on transfer of property an interest is to be created in
favour of such persons (belonging to a class) as shall be surviving at some period (not
specified), the interest will go to such of them who shall be alive when the
intermediate or precedent interest ceases to exist and no contrary intention appears
from the terms of the contract

(Very Important) 25. Conditional transfer.—An interest created on a transfer of

property and dependent upon a 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
Illustrations (a) A lets a farm to B on condition that he shall walk a hundred miles in an
hour. The lease is void. (b) 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. (c) A transfers Rs.
 500 to B or condition that she shall murder C. The transfer is void. (d) A transfers Rs. 500
to his niece C if she will desert her husband. The transfer is void.

26. Fulfilment of condition precedent.—Where the terms of a transfer of property impose a

condition to be fulfilled before a person can take an interest in the property, the condition
shall be deemed to have been fulfilled if it has been substantially complied with.
Illustrations (a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent
of C, D, and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled
the condition. (b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent
of C, D and E. B marries without the consent of C, D and E, but obtains their consent after
the marriage. B has not fulfilled the condition
 The characteristics of a condition precedent may be summarized as follows:—
(i) A condition precedent is one which must happen before the estate can vest.
(ii) Where the condition is precedent, the estate does not vest in the transferee
until the condition is performed.
(iii) A condition precedent is fulfilled if it is substantially complied with. (iv)
Where the condition precedent becomes impossible of performance, or is
immoral or opposed to public policy, or fraudulent, the transfer will be void
 Condition precedent means the condition which is to be performed before the transfer
takes place. The general rule regarding this is that where a transfer is made on a
condition precedent, the transfer fails unless the condition is first fulfilled. The section
says that even if the condition is substantially complied with the condition will be
deemed to have been fulfilled
 gonendro mohan tagore v rajah jyotindra mohan tagore (1874 1IA/387)
– veer Bhadra v chiranjiri (1905 2828 MAD.173)
o I will transfer my property but u have to execute the document within 3 weeks
– u do it within 4 weeks – reasonable ask – this is a substantial fulfilment of
the condition

27. Conditional transfer to one person coupled with transfer to another on

failure of prior disposition.—Where, on a transfer of property, an interest therein is
created in favour of one person, and by the same transaction an ulterior disposition of
the same interest is made in favour of another, if the prior disposition under the
transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior
disposition, although the failure may not have occurred in the manner contemplated
by the transferor.
 But, where the intention of the parties to the transaction is that the ulterior disposition
shall take effect only in the event of the prior disposition failing in a particular
manner, the ulterior disposition shall not take effect unless the prior disposition fails
in that manner.
Illustrations (a) A transfers Rs. 500 to B on condition that he shall execute a certain
lease within three months after A’s death, and, if he should neglect to do so, to C. B
dies in A's life-time. The disposition in favour of C takes effect. (b) A transfers
property to his wife; but, in case she should die in his life-time, transfers to B that
which he had transferred to her. A and his wife perish together, under circumstances
which make it impossible to prove that she died before him. The disposition in favour
of B does not take effect.
 This section provides that where an interest created on a transfer of property is
intended to take effect upon the failure of a prior interest created by the same
transaction, such interest will take effect upon the failure of the prior interest in any
manner, unless it is clearly intended that the subsequent interest is not to take effect
unless the prior interest failed in a particular manner and the failure occurred in some
other manner.
 Two exceptions to this section
o the prior interest is void. The ulterior interest dependent upon it also fails. For
example, where A transfers property to B on the condition of B murdering C
and then to D, the prior transfer from A to B is void, therefore, transfer to D
also fails
o Second exception applies where the intention of the transferor is specific that
the second transfer would take effect only when the prior interest will fail in a
particular manner. Only on the failure of the prior interest in that manner the
second transfer takes effect.
 For example, A transfers property to his wife but in case she dies in his
life-time, transfer to B that which he had transferred to her. A and his
wife perish together in an accident under circumstances which make it
impossible to prove that she died before him. The disposition in favour
of B does not take effect.
 Underwood vs. Wing 1855 4 DE GMC 633
o Husband and wife perished together in a flight crash. Under English law, the
rule is that it is presumed, the younger survived the older person, and after
that, they perished. The same rule is not applied in India. The property won’t
be transferred for the ulterior disposition if such a situation was to take place
in India.
o If the valid prior interest is to fail for any reason only then will the property
move forward. In such a case, if the property is to be transferred to someone
on the passing of their exam, and in the case of failure, the property shall be
transferred further to someone else. In the event of passing, the ulterior
disposition would cease to exist.
o In case of specific condition that the passing of exam should be coupled with
the 1st position, then the condition has to be fulfilled as it is. In the failure of
this event, the property shall move onto the ulterior disposition. The second
interest only to take effect only if the prior interest fails in a specific manner.
  Ismail Haji
Failure of prior interest means a valid prior interest that fails because of a contingency and
not something that is void ab initio. Ismail Haji
Failure of prior interest means a valid prior interest that fails because of a contingency and
not something that is void ab initio.

28. Ulterior transfer conditional on happening or not happening of specified event.—On

a transfer of property an interest therein may be created to accrue to any person with the
condition superadded that in case a specified uncertain event shall happen such interest shall
pass to another person, or that in case a specified uncertain event shall not happen such
interest shall pass to another person. In each case the dispositions are subject to the rules
contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.
 Conditional Limitations
o This section deals with ulterior transfers which are conditional on the
happening or non-happening of a specified event
o Interest maybe created in favour of a person on the condition that
 A specified uncertain event shall happen
 A specified uncertain event shall not happen
o Eg: , if A transfers Rs 1,00,000 to B with a condition that he will join the army
within 3 years from the date of transfer and if he fails to do so within the
specified period, the money shall go to C. Now, if B does not join the army
within three years from the date of transfer or he fails to do so at all, the
money will go to C.
o It is not necessary that the interest created should be an absolute interest in the
property. A contingent interest or life interest may be created subject to a
condition that on the happening of a specified uncertain event, it shall pass to
another person.
o A conditional limitation is a condition of defeasance, which terminates the
interest of one person and invests that in another person.
 The ulterior transfers or conditional limitations are subject to the rule contained in
some sections. These sections are explained below:—
o i) Section 10—A transfers his land to B without the power of alienation, in
case of B's death without issue, to C without power of alienation. The
restriction was held to be void in both the cases.
o (ii) Section 12—A transfers his land to B and in case B becomes insolvent to
C. B becomes insolvent. The condition is void. The property will not vest in C
but in Official Receiver or Official Assignee appointed under the insolvency
laws.
o (iii) Section 21—A transfers his land to B and in case of B's death without
issue, to C. C has contingent interest in the property which will be vested if B
dies without issue.
o (iv) Section 22—A transfers his land to B and on the death of B to such of the
children of C as shall attain the age of 18 years. Here all the children who are
 alive at the death of B have an interest, which will vest when they will attain
the age of 18.
o (v) Section 23—A transfers his land to B for life and then to C, if C goes to
England. C does not go to England until a year after B's death. The interest of
C fails.
o (vi) Section 24—A transfers his land to B and in case B dies without issue to
the sons of C or the survivor of them. The sons of C who survive B take the
land.
o (vii) Section 25—A transfers his land to B for life on the condition that he
murders C and if B will die without issue the land will be transferred to D.
Here the interests of both B and D fail

29. Fulfilment of condition subsequent.—An ulterior disposition of the kind contemplated

by the last preceding section cannot take effect unless the condition is strictly fulfilled.
Illustration A transfers Rs. 500 to B, to be paid to him on his attaining his majority or
marrying, with a proviso that, if B dies a minor or marries without C's consent, the Rs. 500
shall go to D. B marries when only 17 years of age, without C's consent. The transfer to D
takes effect
 Condition subsequent
o This section states that a future arrangement, as described in section 28, can
only happen if the condition is completely fulfilled.
o The conditions subsequent which are intended to defeat vested interests need
to be construed strictly
o the condition precedent under section 26 is deemed to have been fulfilled even
if it is substantially complied with.
o When interest is vested it cannot be taken away unless with clear words
without any ambiguity, if there is any ambiguity in the condition subsequent
then it will be read in the most favourable sense to the vested interest

30. Prior disposition not affected by invalidity of ulterior disposition.—If the ulterior
disposition is not valid, the prior disposition is not affected by it. Illustration A transfers a
farm to B for her life, and, if she do not desert her husband to C. B is entitled to the farm
during her life as if no condition had been inserted.
 Subsequent interest is valid
o if an ulterior disposition is invalid, the prior disposition is not affected by
invalidity of the subsequent disposition
o in case of section 16, if a prior interest is invalid, the subsequent interest
depending upon the prior interest also fails. However, here if subsequent
interest is not valid the prior interest will not be rendered invalid.

31. Condition that transfer shall cease to have effect in case specified uncertain event
happens or does not happen.—Subject to the provisions of section 12, on a 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.
Illustrations (a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a
certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his
life-interest in the farm. (b) A transfers a farm to B, provided that, if B shall not go to England
within three years after the date of the transfer, his interest in the farm shall cease. B does not
go to England within the term prescribed. His interest in the farm ceases.
 This section says that subject to the provisions of section 12, an interest may be
created on a transfer of property with a superadded condition that interest shall cease
to exist— (i) in case a specified uncertain event shall happen, or (ii) in case a
specified uncertain event shall not happen.
 Section 12 to which the provisions of this section are subjected deals with the
conditions making interest determinable on insolvency or attempted alienation
 The condition mentioned in this section is a condition subsequent, which ends an
interest and returns it to the person who granted it. It's not a conditional limitation that
creates an interest for someone else. For the condition subsequent to be effective in
ending the interest, it must be a valid condition. If the condition is void, the interest
won't go back to the grantor. The event that triggers the termination of the interest
must be a clear and specific event. For instance, if a lease agreement states that the
lease will be canceled if the tenant engages in "any other business or manufacturing of
any other kind" without the written consent of the landlord, and the condition is
considered vague, then the transferee (tenant) is not obligated by it.

32. Such condition must not be invalid.—In order that a condition that an interest shall
cease to exist may be valid, it is necessary that the event to which it relates be one which
could legally constitute the condition of the creation of an interest
 Invalid condition subsequent
o This section provides that invalid condition subsequent does not divest the
interest to which it is attached. A condition which is void as a condition
precedent is also void as a condition subsequent
 Grounds when condition subsequent is invalid
(i) Where a condition subsequent is vague and uncertain, and incapable of
giving a definite meaning, the condition becomes void.
(ii) Where the condition subsequent is incapable of performance i.e., it
cannot be performed, the condition subsequent is held to be a void
condition.
(iii) Where a condition subsequent is opposed to public policy, it is an
invalid condition.
(iv) Where a condition subsequent is immoral, it will be a void condition.
(v) A condition subsequent which is in general restraint of marriage shall
be void except in the following situations where the conditions
subsequent have been held to be valid:— (a) a condition subsequent
that a person should not remarry. 195 (b) a condition subsequent
restraining marriage with a particular person. 196 (c) a condition
subsequent causing a forfeiture is the event of marriage without the
consent of some person named. 197 (d) if the object of the condition
subsequent is not to promote celibacy by some lawful object
 33. Transfer conditional on performance of act, no time being specified for
performance. —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 renders impossible, permanently or
for an indefinite period, the performance of the act.
 This section deals with a condition where no fixed time is given for the performance
of a condition subsequent.
 This section says that when no time is fixed for performance of a condition
subsequent but the person, who has to perform the condition and who is to take
interest created, does some act by which the condition becomes impossible to perform
or its performance is permanently postponed, the condition subsequent is broken.

34. Transfer conditional on performance of act, time being specified.—Where an act is to

be performed by a person either as a condition to be fulfilled before an interest created on a
transfer of 15 property is enjoyed by him, or as a condition on the non-fulfillment of which
the interest is to pass from him to another person, and a time is specified for the performance
of the act, if such performance within the specified time is prevented by the fraud of a person
who would be directly benefited by non-fulfilment of the condition, such further time shall as
against him be allowed for performing the act as shall be requisite to make up for the delay
caused by such fraud. But if no time is specified for the performance of the act, then, if its
performance is by the fraud of a person interested in the non-fulfilment of the condition
rendered impossible or indefinitely postponed, the condition shall as against him be deemed
to have been fulfilled.
 Based on the principle that no person can take advantage of his own fraud
 The maxims behind this section are mullus commodum capere protested injuria sua
propria (i.e., no one can advantage of his own wrong) and raus et dolus nemini
patrocinari debent (i.e., fraud and deceit ought not to benefit any person).
 This section deals with two types of cases:—
o Where a time is specified for the performance of an act constituting the
condition of transfer and the fulfilment of the condition is prevented by the
fraud of the person directly benefitted by the non-fulfilment of the condition.
o Where no time is specified for the performance of the act and the fulfilment of
the condition is rendered impossible or is indefinitely postponed by the fraud
of the person interested in the non-fulfilment of the condition.
Aspect Condition Precedent Condition Subsequent
1. Timing Before the creation of interest. Follows the creation of interest.
2. Vesting and Vesting is postponed until condition is Vesting occurs before condition
Fulfilment fulfilled. fulfillment.
3. Divesting of Once vested, cannot be divested by non- Even if vested, can be divested by
Interest fulfilment. non-fulfilment.
4. Effect on Estate Affects the acquisition of the estate. Affects the retention of the estate.
5. Validity of If condition impossible, immoral, or against Transfer becomes absolute, and the
Condition public policy, transfer is void. condition is ignored.
6. Validity of Condition must be valid in law for interest to Invalidity of condition can be
Condition in Law vest. ignored.
 Aspect Condition Precedent Condition Subsequent
Applicable; substantial compliance is deemed Not applicable; condition must be
7. Doctrine of Cy-pres fulfilment. strictly fulfilled.

Election
Section 35 – Rule or doctrine of election - election when necessary, r/w 180 and 190 of
Indian succession act
Due to my ignorance, what if I transfer a part for which I have no right, It didn’t belong to me
– I transferred a property by mistakenly = then the actual owner can either retain his property
or he can get an amount of sum for transferring it further to the third person to whom the
property was promised, through right of election. In this case, even though the transferor was
not an owner and not competent, the ultimate transferor still remains the owner – only people
who have absolute or limited interest can transfer their land
This section is an exception to Section 7
Section 7 – competency of transfer such property – a major, sound person – in relation to
every property we have to check whether they are competent transferors
nemo debet quod non habit – no one can give what they do not have
when wou promise you don’t have or something greater than what u have – a benefit is being
offered to the actual owner then it can also have a liability – when he choose to elect the
property – he has to do it in whole – when I pay the owner 5 lakhs for the property, then any
condition put up, he or she has to follow – so one can approbate or probate – cannot say yes
or no at the same time – so the owner can be given benefits as well as attached liability
Qui sentit commodum, sentire debet et onus – both liability and benefit – one who derives
benefit, or disadvantage or to sustain burden as well – privilege is subject to its conditions

Essentials –
1. A person professes to transfer his property not his own – word used is professes –
actual transfer not there – its merely talking about the purportment of the party-
arrangement for the transfer is made = why will someone profess to transfer
somebody else property = ignorance, misunderstanding, power of attorney wrongly
understood his authority – knowledge is not essential – elections can be in both the
cases – does and does not believe – knowledge is not essential
2. Benefits conferred on the owner – some benefit must be given in lieu of the property –
ignoring the technicalities – one major thing is benefit should just be for the property
– not bound to elect something or not – if not for property – if said giving in lieu –
then u r bound to respond - Right of ownership and benefits conferred under the same
transaction – different names might be there but same transaction
- Cooper v Cooper – 1874 7HL53
- Thanpati v devi prasad – 1970 3SCC 776
- Owner – under this section – A person having vested interested as well as contingent
interest
 3. Benefit must be direct not indirect – indirect enjoyment – I want to transfer a portion
of your land and I will give 20 lakhs to ur wife – but not directly giving the money
therefore not bound to elect. – I will transfer but you give this 20 lakhs to a charitable
trust then the owner can put forward his intention but I have to elect in that case – in
lieu of the transfer to charity, I will be transferring the property to u first
Case – Valliama v Nagappa AIR 1967 SC 1153
If no direct benefit, then the doctrine wont apply and owner would not be put to
election
Transfer and benefit must be part of the transaction
- Inseparable and interdepdent – it should be visible
- Sardar Mohammad Afsal Khan v. Nawab Ghulam Kaism Khan – 1903 ILR 30
Cal.843
- Nawab transfers 2 villages to his second son then he dies – now he is territory ka
nawab – the govt wants to transfer the chiefship to the eldest son – for that the govt
also gives some money to second son– now privy council – the second son got 2
villages and money – then should he have the right to elect out of these 2? – no these
are independent grants and both grants are coming from different sources, and thus
not related
4. Owner has a duty to elect – with the knowledge of the owner, an alternative to elect
must be given to the owner whether to retain or to transfer, is express or implied –
knowledge is a valid ground of challenge
Express - I choose to retain or derive this benefit
Implied – conduct
- Where he has enjoyed the benefit for 2 years, u can elect then– presumed to agree to
the transfer of property
- Where he has utilized that benefit in such a manner that even after 6 months he come
to retain – it will be impossible for the parties to accept that position – hence bound
to transfer the property
Requisition to elect
After the expiry of 1 year this requisition can be placed as a reminder where the owner can be
reminded to retain or elect – if he does not say anything – then the presumption of approval is
accepted
Suspension of election
Legal disability – election period is suspended

Right of frustrated transferee – he will be liable to reasonable compensation not exceeding

the value of the property
2 situations –
1. Gratutituous transaction – but pwner died or become incompetent
2. Non-gratitutous