Assignment

Subject- Property Law

Code- J1UB603T
BBA LLB, Sem VI
By- Muqtadi Raza
Admission No. 21GSOL1030055

Q.1 Define Immovable property? What test one would be apply to

determine whether a property is or not an immovable property.
Discuss whether the following are Movable or Immovable properties
(a)A Factory
(b) A right of way
(c)A right to cut the grass for a period of one year
Ans1. Immovable property, also known as real property, refers to land,
buildings, and permanent fixtures attached to the land.
To determine whether a property is immovable, one would typically
apply the “attachment test” or the “intention test.”
- Attachment Test: This test considers whether the property is
physically attached to the land or forms an integral part of it. If
the property cannot be removed without causing damage to the
land or structure, it is likely immovable.
- Intention Test: This test examines the intention of the owner
regarding the permanence of the property’s attachment to the
land. If the owner intended for the property to be a permanent
fixture of the land, it is considered immovable.
Now, let’s discuss the examples provided:
(a) A Factory: This would generally be considered immovable
property if it is permanently attached to the land, such as being
 built on a concrete foundation. The intention of the owner and
the nature of the attachment would be crucial in determining
its immovability.
(b) A Right of Way: This is typically considered an incorporeal
hereditament, which means it’s a non-physical property right
associated with the land. While the land itself is immovable,
the right of way is a legal interest attached to it. Therefore, it
is not immovable property.
(c) A Right to Cut the Grass for a Period of One Year: This is
a temporary right or license and does not constitute immovable
property. It is a personal right that can be exercised within a
specific time frame and does not involve a permanent
attachment to the land.

Q.2 (a) Discuss the transfer by unannounced person who subsequently

acquires interest in the property transferred as given under Section 43
of Transfer of Property Act, 1882. Also Differentiate between Sec. 6
(a) and 43 of the Act.

Ans. Section 43 of the Transfer of Property Act, 1882, deals with the
transfer of property by an unannounced person who subsequently
acquires an interest in the property transferred. According to this
section, if a person transfers property to another without disclosing that
he or she has no interest in the property at the time of the transfer, but
later acquires an interest in the property, that interest will pass to the
transferee to the extent necessary to validate the transfer.

In simpler terms, if someone sells or transfers property to another

person without actually owning it at the time of transfer, but later
acquires ownership or interest in the property, the transfer becomes
valid to the extent of the interest acquired.

Now, let’s differentiate between Section 6(a) and Section 43 of the

Transfer of Property Act:
 1. Section 6(a): This section deals with the concept of transfer of
property. It states that transfer of property means an act by which
a living person conveys property to one or more other living
persons, or to himself and one or more other living persons. In
essence, it defines what constitutes a transfer of property.

2. Section 43: This section, as explained earlier, deals with the

situation where a person transfers property to another without
actually owning it at the time of transfer, but subsequently
acquires an interest in the property. It validates such transfers to
the extent of the interest acquired later.

In summary, while Section 6(a) defines the concept of transfer of

property, Section 43 addresses a specific scenario where a transfer is
made by a person who later acquires an interest in the property
transferred, validating the transfer to that extent.

Q. 3 Examine the doctrine of Equity of redemption.

Discuss whether following amount to clog on redemption or not
(i) A stipulated that mortgage shall not alienate the mortgage
property
(ii) An agreement that redemption should be available to the
mortgage and not to his heirs
(iii) A mortgage for a term of 5 years with a condition that if the
money is nit paid the mortgagee might enter into possession
for a period of 12 years during which mortgagor could not
redeem.
Ans. The doctrine of Equity of Redemption is a fundamental principle
in mortgage law that allows a mortgagor (borrower) the right to reclaim
or redeem their property upon repayment of the mortgage debt, even
after defaulting on the loan. This doctrine emphasizes fairness and
equity by ensuring that the mortgagor retains the right to reclaim their
property after fulfilling their financial obligations.
Now, let’s examine whether the following scenarios amount to a “clog
on redemption”:

(i) A stipulation that the mortgage shall not alienate the

mortgage property:
This stipulation would likely be considered a “clog on redemption.” It
restricts the mortgagor’s ability to freely deal with the mortgaged
property, such as selling it. The equity of redemption doctrine prohibits
such restrictions because it ensures the mortgagor’s right to reclaim the
property upon repayment of the mortgage debt.
(ii) An agreement that redemption should be available to
the mortgagee and not to his heirs:
This agreement would also likely be considered a “clog on
redemption.” It restricts the rights of the mortgagor’s heirs to redeem
the property, which goes against the principle of equity of redemption.
The doctrine allows any party with an interest in the mortgaged
property to redeem it upon fulfilling the mortgage obligations.
(iii) A mortgage for a term of 5 years with a condition that if
the money is not paid, the mortgagee might enter into
possession for a period of 12 years during which the
mortgagor could not redeem:
This scenario represents what is known as a “term mortgage.” While
term mortgages are generally valid, the condition that the mortgagee
may enter into possession for an extended period (12 years) without
allowing the mortgagor to redeem the property could be considered a
“clog on redemption.” It unduly restricts the mortgagor’s right to
reclaim the property by imposing an excessive and unreasonable
condition.
In summary, all three scenarios potentially amount to a “clog on
redemption” as they impose restrictions that go against the principle of
equity of redemption, which ensures the mortgagor’s right to reclaim
the property upon repayment of the mortgage debt.