GROUP

PRESENATATION

Farrukh Hasan Pasha

CE-010/2024
Abdul Mutal Ashraf
CE-012/2024
Moatasim Malik
CE-021/2023-24
 1. Mortgage of immovable

AGENDA
Property under Transfer of
Property Act 1882
2. Sale under Transfer of
Property Act 1882
3. Gift under Transfer of
Property Act 1882
4. Exchange under Transfer of
Property Act 1882
5. Lease under Transfer of
Property Act 1882

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MORTGAGE OF
IMMOVABLE PROPERTY
UNDER TRANSFER OF
PROPERTY ACT 1882
Mortgage: A mortgage is an agreement between a
person and a lender that gives the lender the right to
take your property if you don't repay the money
you've borrowed plus interest ~ Consumer Financial
Protection Bureau
Mortgager : the person who gives mortgage in return
for the money to be repaid ~ Vocabulary.com
Mortgagee : A mortgagee is a lender ~ Investopedia

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 TYPES OF
MORTGAGES
• Simple Mortgage: No transfer of possession to the
mortgagee
• Mortgage by Conditional Sale: Conditional transfer of
ownership, with the condition that the sale becomes
absolute in case of default.
• Usufructuary Mortgage: Possession is transferred to the
mortgagee, who enjoys the income from the property.
• English Mortgage: Absolute transfer of property with a
binding agreement to retransfer upon repayment.
• Mortgage by Deposit of Title Deeds: It's a type of
mortgage where you secure a loan by handing over the
ownership documents of your property to the lender.
• Anomalous Mortgage: Any mortgage that doesn't fall
under the above categories.
Rights of Mortgager
• Right to redeem the mortgage (Section 60).
• Right to lease
• Liability to pay debt and maintain property

Rights and Liabilities of Mortgagees

• Right to foreclosure or sale (Section 67)
• The Doctrine of Priority
• The Doctrine of Marshalling

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 SALE UNDER THE
TRANSFER OF
PROPERTY ACT, 1882

Sample Footer Text 6

Section 54 of the Transfer of Property Act, 1882 defines a sale as a transfer of
ownership in exchange for a price paid or promised or part-paid and part-promised.
Essential Elements of a Sale
• Transfer of Ownership
• Immovable Property
• Price
• Competent Parties

Agreement Execution & Delivery of

Sale deed
to Sale Registration possession

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Must disclose any material defects in the Must transfer the property and deliver
property possession

Seller’s Responsibility

Must ensure the property is free from

Must pay all the dues
encumbrances

Must bear costs of registration and related

Must pay the sale price
expenses unless otherwise agreed

Buyer’s Rights & Liability

Is entitled to enjoy the property and its

benefits once the sale is complete

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 GIFT UNDER
TRANSFER OF
PROPERTY ACT 1882

Sample Footer Text 9

WHAT IS A GIFT?
• Transfer of ownership of a property where sender willingly transfer without any compensation in monetary value.
• It may be moveable or immoveable.
• The transfer occurs between two living persons or after the death of transferor.
• When the transfer takes place between two living persons, it’s called “inter vivos”.
• When transfer takes place after death of transferor, it’s called “testamentary”.
• Only “inter vivos” fall under the scope of section 5 of the transfer of property act.
PARTIES INVOLVED IN A GIFT TRANSFER
Donor:
• Must be competent, have sound mind and be at the age of majority.
• Must have the capacity and right to make a gift.
• Juristic persons (registered societies, firms & institutions) are also competent to make gifts.
• Gift my minor or insane person is a void.
• The right of donor is determined by ownership rights in the property at the time of transfer.
• Only “inter vivos” fall under the scope of section 5 of the transfer of property act.

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Donee:
• No need for donee to be competent to contract.
• A gift made to an insane or minor or a child in mother’s womb is lawfully acceptable which is collected by a competent
person on his/her behalf.
• Juristic person are deemed as competent donee.
• The donee must be ascertainable.
• The gift made to general public is void.
ESSENTIALS OF A GIFT
Transfer of ownership:
• Transfer of absolute interests implies the transfer of all rights and liabilities in respect of property.
• Nothing less than ownership may be transferred by way of gift.
• Transfer of gifts also has certain conditions.
Existing property:
• The property ,may be of any kind, must be in existence at the time of making a gift.
• The gift must be transferable under section 5 of transfer of property act.
• Any kind of future property, inheriting property is deemed void as a gift.

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Transfer without cosideration:
• A gift must be transferred without any consideration.
• Even if a small amount of money is used by the transferee to transfer negligeable or big property, it is then considered as a sale or exchange.
• Consideration shall have same meaning as giving in section 2 (d) of the Indian contract act.
• The consideration is pecuniary in nature.
• Property transferred in consideration of love and affection is considered as a gift.
• A transfer of property made in consideration for services rendered by a donee is a gift.
• Property transferred in consideration of donee undertaking liability of donor is not a gift.
Voluntarily transfer with free consent:
• The donor must make the gift voluntarily.
• Donor’s will in executing the deed of gift must be free and independent.
• The burden of proving that the gift was made voluntarily with free consent of donor lies on donee.
Acceptance of gift:
• The donee must accept the gift.
• The donee may refuse the gift in case of non beneficial property or onerous gifts.
• When the donee takes possession of the property or of the title deeds, there is acceptance of gift.
• Where the property is on lease, acceptance may be inferred upon the acceptance of the right to collect rents.
• When the property is jointly enjoyed by the donor and donee, mere possession cannot be treated as evidence of acceptance.
• When the gift is not onerous, even minimal evidence is sufficient to prove that gift has been accepted by Donee.
• Mere silence of the donee is indicative of the acceptance provided it can be established that the donee had knowledge of the gift being made in his favour.

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MODES OF MAKING A GIFT
• Section 123 of the transfer of the property act deals with the formalities necessary for the completion of a gift.
• The section lays down to modes depending upon the nature of the property.
• For immovable property, registration is necessary.
• For movable property, it may be transferred by the delivery of possession.
Mode of transfer of various types of properties are:
Immoveable properties:
• In this case transfer of property is necessary irrespective of the value of property.
• It is considered officially completed when the transaction is in writing, signed by the donor, attested by two competent persons
and duly stamped before the registration.
• E.g: In the case of Gomtibai V. Maltulal, it was held by the Supreme Court that in the absence of written instrument executed
by the donor, attestation by two witnesses, resgistration of the instrument and acceptance thereof by the donee, the gift of
immovable property is incomplete.
Moveable properties:
• In the case of movable properties, it may be completed by the delivery of possession.
• Registration in such cases is optional.
• The gift of a movable property affected by delivery of possession is valid, irrespective of the valuation of the property.
• The mode of delivering the property depends upon the nature of the property.
• The only things necessary are the transfer of the title and possession in favor of the donee.
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ACTIONABLE CLAIMS
• They are defined under Section 3 of the transfer of property act.
• Transfer of actionable claims comes under the purview of section 130 of the act.
• It may be unsecured money debts or right to claim moveables not in possession of the claimant.
• They are thus intangible movable properties.
• They may be transferred as gift by an instrument in writing signed by the transferrer or his duly authorised agent.
• Registration and delivery of possession are not necessary.
A GIFT OF FUTURE PROPERTY
• Section 124 of the transfer of property act renders the gift of future property void.
• If the gift consist of both present and future property, then the whole gift is not considered void. Only the part with future
property is considered as void.
A GIFT MADE TO MORE THAN ONE DOONEE
• Under section 125 of the act, in case a property is gifted two more than one donee, one of whom does not accept it, the gift, to
the extent of the interest which he would have taken becomes void.
• Such interest reverts to the transferrer and does not go to the other doonee.
• A gift made to two donnies jointly with the right of survivorship is valid, and upon the death of one, the surviving donee takes the
whole.

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REVOCATION OF GIFTS
• In case of conditional gift, section 126 of the act must be followed.
• The section 126 lays down to modes of revocation of gifts which are as follows:
Revocation by mutual agreement:
• In this case the donor and the donee mutually agree that the gift shall be suspended or revoked upon the happening of an event.
• It is not dependent on the will of the donor.
• It is called a gift subject to work condition laid down by mutual agreement.
• It must consist of following essentials:
i. The condition must be expressly laid down.
ii. The condition must be a part of the same transaction, it may be laid down either in the gift deed itself or in a separate document being a part
of the same transaction.
iii. The condition upon which a gift is to be revoked must not depend solely on the will of the donor.
Revocation by recission of contract:
• Gift is a transfer, it is thus preceded by a contract for such transfer.
• Under section 126, a gift can be revoked on any grounds on which its contract may be rescinded.
• The option of such revocation lies with the donor and cannot be transferred, but the legal heirs of the donor may sue for revocation of such
contract after the death of the donor.
• The limitation for revoking gift on the grounds of fraud is three years from the date on which facts come to the knowledge of the donor.
• The right to revoke the gift on the abovementioned grounds is lost when the donor ratifies the gift either expressly or by his conduct.

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E.g: section 19 of the Indian contract act makes a contract voidable at the option of the party
whose consent has been obtained forcefully. In this case gift maybe rescinded by the donor.

Conclusions
To constitute a transfer as a gift it must follow the provisions of the transfer of property act. This
act extensively defines the gift itself and the circumstances of the transfer of such gift. The gift,
being a transfer of the ownership rights, must be in possession and ownership of the transferee
and must be existing at the time of making the transfer. The transferrer must be competent to
make such transfer, but the transferee may be any person. In case the transferee is incompetent to
contract, the acceptance of gift must be ratified by a competent person on his/her behalf.

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EXCHANGE UNDER
TRANSFER OF
PROPERTY ACT 1882

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WHAT IS EXCHANGE?
Under section 118 of transfer of property act 1882, exchange is defined as when two persons mutually transfer ownership of one
thing for the ownership of another, neither thing or both things being money only, the transaction is called an exchange.

FEATURES OF EXCHANGE
Transfer of ownership: It involves transfer of ownership in some existing property.
In transfer of ownership, absolute interest of the owner is transferred.
A partition of immovable property is not considered as exchange.
Property need to be immovable property: Exchange properties may be immovable or movable.
An immovable property can be transferred against a movable property and vice versa.
Exchange includes “Barter”: Exchange of one immovable property with another immovable property is known as “barter”.
In some cases, barter is transfer of one movable property against another movable property.

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MODES OR TRANSFER
• Section 118 provides that transfer of property in completion of an exchange can be made only in a manner prescribed for
transfer of such property by “sale”. The formalities of section 54 (dealing with similar properties) will be compiled with;
• Where both properties are of movable, then exchange will be affected by delivery of properties and registration is not essential.
• Where properties are immovable, but value is less than Rs. 100, then registration is optional.
• Where the properties exchange are immovable properties and their value are more than Rs. 100 then registration of exchange of
ownership through instrument is necessary.

RIGHT OF A PARTY DEPRIVED OF THING RECEIVED IN EXCHANGE.

• Under the section 119 of the transfer of property act 1882, if any party to an exchange or person claiming through or under such
party is by reason of any defect in the title of the other party deprived of the thing Or a part of thing received by him in
exchange, then unless a contrary intention appears from the terms of the exchange.
• If a party has deprived from the thing whose ownership has been transferred in exchanged due to defective title of other party
he has two remedies under section 119:
i. He can recover for compensation for loss suffered to him.
ii. He can take back thing transferred by him. This can only happen for the mentioned cases:
a) Where property is still in possession of other party.
b) In possession of his legal representatives.
c) A transferee from him without consideration.

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RIGHTS AND LIABILITIES OF PARTIES TO THE EXCHANGE
• Section 120 does not specifically mention the rights and liabilities of parties to the exchange. It provides only that each
party has the right and is subject to the liabilities of a seller as to that he gives and has rights and is subject to the
liabilities of a buyer as to debt which he takes.
• The rights and liabilities of parties in case of exchange are same as in case of sale.
• In exchange, one thing is given, and another thing has been taken, so parties play role of seller as well as buyer.

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 LEASE UNDER
TRANSFER OF
PROPERTY ACT 1882

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WHAT IS LEASE?
• Under section 105 it is defined as a transfer of immovable property for a particular time for consideration of which the
transferee has accepted the terms surrounding the agreement.

ESSENTIALS OF LEASE
• Parties must be competent.
• Right of possession.
• Rent
• Acceptance
• Time Period

LESSOR & LESSEE

The transfer is called “lesser”. The transferee is called “lessee”.

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HOW LEASE IS EXECUTED?
• Lease of immovable property for a term of one or more than one year can only be made by a registered deed.
• All other leases of immovable property can either be made by a registered deed or an oral agreement or settlement along
with transfer of possession of that property.
• Multiple properties lease requires multiple deeds, and it will be made by both the parties of lease.

RIGHTS OF LESSOR
• Recovery of rent
• Taking back the possession due to breach of condition or due to termination of the lease term prescribed in the contract
• Recovery of the amount of damages.

RIGHTS OF LESSEE
• During the period lease is in effect if any alteration is made then that alteration will come under that same lease.
• If a part of a property is fully or partially damaged by fire, flood, war, violent mob attacks or any other means resulting in
its inefficiency of being a benefit for the lessee, if this happens the lease is voidable at his option.
• Deduct any expenses made on repairs of the property.
• Can recover any such payment which lessor is bound to make. It can be deducted from the interest of rent or directly
from the lessor.
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• Can detach all the things that may have attached in the property.
• When lease is of unspecified duration in the agreement, lessee can collect all the profits from the crops which were sown by the
lessee at that property.
• They also have right of free ingress and egress from such property even if the lease ends.
• Can transfer absolutely the property or any part of his interest in that property by sub leasing or through mortgaging.
• Lessee is not independent of the terms and conditions of the lease agreement.

LIABILITIES
Lessor
Has to disclose any material defect relating to property with the
lessee does not know.
Has to give the right of possession of his property to the lessee.
Can enter into a contract with the lessee if he agrees on all
terms and conditions prescribed in contract.
Lessee
Has to disclose all related material facts which are likely to
increase the value of property.
Has to pay the rent which is settled upon in agreement.
Has to maintain the property and return it in the same initial
condition.
If he gets to know about any encroachment or interference on the
property, he has to give notice to the lessor.
Can use all the assets and goods which are on property under
obligation to prevent any other person from using that good.
Can’t attach any permanent structure without consent of lesser.
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Have to give back possession after the lease ends.
WHEN THERE IS NO TIME PERIOD PRESCRIBED IN THE LEASE AGREEMENT?
• Under section 106, in the absence of contract, the lease under transfer of property act can be terminated by both parties by
issuing a notice of termination of the lease.
• Stipulated time period always starts from the date of receiving the notice to quit.
• There is a provision to this section which states that notice to quit must be in written and communicated to the party who is
required to abide it. If this is not possible then it should be attached to conspicuous place in that property.
• There is distinction of two purposes in regard to section 106 that is agricultural or manufacturing and other purposes. Hence
two things can be derived from it:
a) In the absence of contract lease of immovable property shall be deemed to be a lease from year to year, terminable, on the part
of either lessor or lessee, by 6 months notice.
b) When lease of immovable property shall be deemed to lease from month to month, terminable, on the part of either lessor or
lessee, by 15 days notice.

DETERMINATION OF LEASE
Under section 111 the ways in which lease is terminated are as follows:
• Lapse of time
• Specified event
• Interest
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• Same owner
• Express surrender
• Implied surrender
• Forfeiture
• Expiry of notice to quit

WHAT IS NOTICE TO QUIT AND WHAT HAPPENS AFTER IT?

• It is a formal written statement issued to the lessee if the lessee wishes to terminate the lease agreement as stated in section 106
and section 111.
• Any lease can be forfeited as mentioned in sub clause-g of section 111 by accepting the notice to quit.
• Under section 112 if the lesser accepts any rent from the lessee after initiating the process of termination on the grounds of
forfeiture, it will be understood that lease still exist and notice to quit and termination has been waived.
• Under section 113 notice can be waived as follows:
a) Express waiver of notice to leave
b) Implied waiver of notice to quit

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EFFECT OF HOLDING OVER
• Under section 116 if wavier of notice to quit is granted it will not be called a new lease rather than lease on sufferance
without objecting to it.
• The term “holding over” stands for retained possession on a property that has been leased.
• Under the section 106, if the lessor agrees to the holding over of property by the lessee, it will be renewed. But if the lesser
does not want to retain possession by the lessee he may initiate the proceedings against the tenant.

CONCLUSION
Lease is an important aspect of our life. Every person has witnessed a lease deal involving renting a house, car etc. Therefore, it
is important for the public to know about the rights of every individual in lease and provisions that governed lease.

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THANK YOU
Farrukh Hasan Pasha
Abdul Mutal Ashraf
Moatasim Malik

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