TRANSFER OF

PROPERTY PENDING
SUIT RELATING
THERETO
(LIS PENDENS S-52)
Lis = litigation

Pendens = pending

Pendente lite nihil innovature – ‘during

pendency of litigation, nothing new should be
introduced;

Deals with transfers of property made during

pendency of suit;
 BASIS OF DOCTRINE

 Basis is necessity and expediency i.e. necessity for

final adjudication and public policy;

 Not based on doctrine of actual or constructive

notice;
 ESSENTIAL CONDITIONS
 There is pendency of suit / proceedings;

 The suit / proceedings must be pending in a Court of

competent jurisdiction;

 A rightto immovable property is directly and specifically

involved in the suit;
CONTI…
 The suit or proceeding is not collusive;

 The property in dispute must be transferred /

otherwise dealt with by any party to suit;

 Transfer by any party to the suit;

 The transfer must affect the rights of the other

party to the litigation
 EFFECT OF LIS PENDENS

 Transferee bound by the decision of the Court;

 Does not prevent vesting and transfers not void;

FRADULENT
TRANSFER
S.53
 UNDERLYING PRINCIPLE

 Transfers done with a mala fide intention of :

Defrauding or defeating the rights of the creditors /
subsequent transferees
 Then transfer voidable a the option of such creditor
/ transferee
 TRANSFERS

DEFEAT / DELAY GRATUITOUS

CREDITORS TRANSFERS WITH
INTENTION TO
DEFRAUD
SUBSEQUENT
TRANSFEREE
 ESSENTIAL CONDITION
 Transfer of immovable property;

 Transfer must be valid;

 Object of transfer is fraudulent i.e. defeat / delay

the creditors;
 Does transfer of the property to one creditor
tantamount to defeating of the rights of other
creditors?
 Masahur Singh v. Hakim Lal

 Representative Suit

 Does not impair rights of transferee in good faith and

for consideration;
 Does not affect rights created by insolvency law

GRATUITOUS TRANSFER
 Subsequent transferee may avoid first transfer if he
could prove that former gratuitous transfer was
fraudulent or void
DOCTRINE OF PART
PERFORMANCE
S.53A
 HISTORY: Applied by Chancery Courts to oral
agreements of transfer of immovable property, to
protect rights of transferee who has acted in good
faith and who could not get title for want of
registration;

 Laidin Maddison v. Alderson, “equity results from

act done in execution of the contract and not upon
the contract.”
 Provision inserted by 1929 Amendment Act;

 Contradicting views taken by courts regarding

applicability ;
 ESSTENTIAL CONDITIONS
 Contract for transfer of immovable property for
value;

 Written & valid contract- sine qua non;

 Mool Chand Bakhu V Rohan – letters not an

agreement in writing, but merely and admission of
an oral agreement.
 Transfer for consideration;

 Possession in furtherance of contract;

 Ifalready in possession then he must have done

some act in furtherance of contract
 Transferee must be willing to perform his part;
NATURE OF TRANSFEREES RIGHTS

 No title or interest in property;

 Merely protects possession;

 Passive equity
No right of action, merely a defense available
LEASE (CHAPTER –V S105-117)
 WHAT IS LEASE?

 Contract b/w Lessor and Lessee for possession and

profits on one side and the recompense by rent or
other consideration on the other;

 Right of possession for certain time = conveyance

 PARTIES TO A LEASE
 LESSOR = Landlord / transferor = person
competent to contract + right to transfer;

 Lessee = Tenant / Transferee = minor cannot be a

Lessee;

 Estate transferred to the Lessee = Leasehold &

remaining with lessor = reversion
 SUBJECT MATTER OF A LEASE

 Immovable property as defined under S. 3;

 Includes land, minerals, profit a prendre;

 The interest of Lessor & Lessee = inheritable.

 TRANSFER OF RIGHT TO ENJOY

 Partial transfer i.e. transfer of right to enjoy =

demise;

 Creates rights in rem;

 TERM/ DURATION

 Commencement of a lease must be certain or capable of being

ascertained so that both the time of its commencement and end
is fixed;

Leases recognized under this section:

 Lease for certain period
 Periodic leases
 Leases in perpetuity
 CONSIDERATION

Premium : whole amount paid in lumpsum

before transferring possession;

Rent – paid periodically

LICENCE
 LICENCES
 Governed by Section 52-64 of the Indian Easements Act, 1882;

 S. 52 defines Licence:
Where one person grants to another, or to a definite number of
other persons, a right to do, or continue to do, in or upon the
immovable property of the grantor, something which would, in
the absence of such right, be unlawful, and such right does not
amount to an easement or an interest in the property, the right
is called a license.
 WHO MAY GRANT LICENSE? (S.53)
A license may be granted by any one in the circumstances
and to the extent in and to which he may transfer his interests
in the property affected by the license.

 Grant of a licence may be express or implied from conduct;

 LICENCES WHEN TRANSFERABLE? (S.56)

 Licence to attend a place of public entertainment may be
transferred by licensee
LICENSE WHEN REVOCABLE? (S.60)
A license may be revoked by the grantor, unless-
it is coupled with a transfer of property and such transfer
is in force;
the licensee, acting upon the license, has executed a work
of a permanent character and incurred expenses in the
execution.

Revocation may be express or implied

 WHEN IS A LICENCE DEEMED TO BE REVOKED?
(S.62)
from a cause preceding the grant of it, the grantor ceases
to have any interest in the property affected by the
license;

By release of the licensee to the grantor / his

representative;

Expiry of the period for which it was granted or

fulfilment of the condition on which it is granted
 property affected by the license is destroyed or by superior
force so permanently altered that the licensee can no
longer exercise his right;

 licensee becomes entitled to the absolute ownership;

 where the license is granted for a specified purpose and

the purpose is attained, or abandoned, or becomes
impracticable;
 license is granted to the licensee as holding a particular
office, employment or character, and such office,
employment or character ceases to exist;

 where the license totally ceases to be used as such for an

unbroken period of twenty years, and such cessation is not
in pursuance of a contract between the grantor and the
licensee;

 in the case of an accessory license, when the interest or

right to which it is accessory ceases to exist.
 DUTIES OF GRANTOR
(S. 57 & 58)
 GRANTOR'S DUTY TO DISCLOSE DEFECTS;

 GRANTOR'S DUTY NOT TO RENDER

PROPERTY UNSAFE
 RIGHTS OF THE LICENCEE
 RIGHT ON REVOCATION (S.63)
 Tohave reasonable time to leave property and remove any goods
placed on such property;

 RIGHT ON EVICTION (S.64)

 Wherelicensee is evicted without any fault of his and before he
has fully enjoyed the right licensed, the he is entitled to
compensation
 DIFFERENCE B/W LEASE AND
LICENCE
LEASE LICENCE
 Transferof an interest Right to do / continue to do
in immovable property; something upon the land of
 Lessee gets a another which in the absence
proprietary right; of this right would be
unlawful;
 merely a personal right ;
 LEASE LICENCE
 Transferable and Not transferable and heritable;
heritable; licence to attend place of public
 Lessee can maintain entertainment
Cannot maintain action against
action against trespasser;
trespasser;
 Can be terminated in the
Revocable at pleasure except when it
manners enumerated in is coupled with transfer of property
S.111 of TOPA; or when licensee has executed work
 Death of party does not of permanent character;
affect a lease Licence terminated by death
DIFFERENCE B/W LICENCE & LEASE

 No clear test to distinguish;

 Following factors may be considered:
Substance of document preferred over form;
Real test = intention of parties
Whether there is creation of interest or mere use & possession of
property;
Whether tenant has exclusive possession.
DURATION OF LEASES (S.106)
 DURATION OF A LEASE
 APPLICABILITY
Leases not governed by contract, local law or usage;
Implied duration by legal fiction
Valid leases

 Presumption of term of lease is based on the

purpose of lease;
 AgriculturalPurpose - year to year - Termination by
6 months’ notice;

 Manufacturing purpose - year to year - Termination

by 6 months’ notice;

 Lease for other purposes – month to month –

termination by 15 days notice
Composite Tenancy
Lease for mixed purpose but there is no fixed
division of premises for one purpose.
The dominant purpose of the tenancy to be
determined

Integrated Tenancy for dual purpose =

Lease for mixed purpose but proper demarcation of
property w.r.t to manner of use.
 NOTICE TO TERMINATE LEASE
Necessary for determination of tenancy;

FORM AND MANNER OF DELIVERY OF NOTICE

Writing, signed by or on behalf of the person giving it
sent by post
delivered personally to such party, or to one of his family or
servants at his residence
Where such tender or delivery is not practicable) affixed to a
conspicuous part of the property.
LEASES HOW MADE
(S.107)
 CREATION OF LEASES

1. LEASES FROM 1. OTHER LEASES

YEAR TO YEAR i.e. FROM MONTH
2. LEASES FOR A TO MONTH OR
TERM EXCEEDING FOR A TERM OF A
ONE YEAR YEAR OR LESS
3. LEASES
RESERVING A
BY REGISTERED INSTRUMENT
YEARLY RENT
OR
BY REGISTERED
By registered instrument
ORAL AGREEMENT + DELIVERY OF
POSSESSION
INSTRUMENT
 CONSEQUENCE OF NON-REGISTRAION OF
A LEASE
 No creation of lease;

 Written instrument not admissible as evidence;

 There, however, shall be a presumption of a lease under s. 106;

 Lessee may sue for specific performance to get the agreement

registered.
 LEASE TO BE EXECUTED BY BOTH
THE LESSOR AND LESSEE
 Inserted through 1929 amendment of the Act;

 Rent Note no longer an instrument of Lease.

RIGHTS & LIABLITIES OF
LESSOR (S.108)
RIGHTS AND LIABILITIES OF A
LESSOR
 HOW DETERMINED?
By contract;
By local usage; and
By section

 LESSOR’S DUTY OF DISCLOSURE

Latent and patent defect;
Defect to be material.
 DUTY TO GIVE POSSESSION

 Liability only upon request of the lessor;

 Failureto give possession entitles lessee to sue for

possession and damages;

 Possession of only the portion of property leased.

COVENANT FOR QUITE POSSESSION

 Quite = peaceful and without interference;

 absolute and unrestricted covenant;

 Subject to payment of rent and performance of the

obligations binding on lessee. s
RIGHTS OF LESSEE
S.108
 RIGHT TO ACCRETIONS

 Accretions = additions;

 Presumed to be part of the property;

 Enjoyed by the lessee during continuance of the

lease.
 RIGHT TO AVOID LEASE ON DESTRUCTION
OF PROPERTY
 Applicable to premises and not land;

 No automatic determination of tenancy, it is determinable at the option of

the lessee;

 Substantial destruction, inability to use property for the purpose for which
it was let;

 Negligence of the lessee does not entitle lessee to avoid.

 RIGHT TO DEDUCT COST OF
REPAIRS
 Applicable when there is an express covenant to repair
property;

 Lessor’s negligence to make repairs does not give the right to

lessee to terminate, but to give notice and carry out repairs;

 Notice.
 PAYMENTS MADE ON BEHALF OF
LESSOR
 Lessee
entitled to deduct with interest from rent, any
payment made by him on behalf of the lessor;

 Lessor must be bound to make such payment;

 And non-payment would affect the interest of the

lessee
 RIGHT W.R.T FIXTURES
 Lessee entitled to remove fixture / things he has attached to the
earth;

 Removal must be during the time when lessee is in possession of

property, even though it is after its determination;

 He must however, leave the property in the condition he has

received;
 On determination of the lease, the following
consequences follow:
The lease of the land comes to an end;
The ownership of the building raised by the tenant
stands vested in the lessor as the building goes with the
land;
The tenants have to vacate the property; and
The lessor-owner stands subrogated in the place of the
tenant.
 RIGHTS W.R.T GROWING CROPS
 W.r.t leases of uncertain duration and such leases are
determined for any reason other than the fault of
lessee;

 The lessee is entitled to all crops planted and sowed

by lessee;

 Also, with the of ingress and egress.

 ASSIGNMENT OF LEASE

 Lessee may transfer absolutely or by way of

mortgage or sub-lease the whole or part of any
interest;

 Lessee’s liabilities do not cease;

LIABILITIES OF THE
LESSEE
LESSEE’S DUTY OF DISCLOSURE
 Limited duty to disclose;

 Disclosure of any fact which increases value of the

property;

 Only w.r.t title

 OBLIGATION TO PAY RENT

 Commences when lessor fulfils his obligation and puts

lessee in possession;

 Time of payment may be fixed by contract, usage;

 Place & mode of payment;


 DUTY TO MAINTAIN PROPERTY

 Duty to keep the property in good condition, subject to

reasonable wear & tear or irresistible force;

 On termination of lease he must restore it in the condition

it was at the time when he was put in possession;
 Lesseemust permit the lessor to enter upon the
premises to inspect;

 Lessor must give notice;

 Lessee liable to make good within 3 months of

notice.
 DUTY TO GIVE NOTICE OF
ENCROACHMENT / PROCEEDINGS

 Noticeto lessor, if lessee becomes aware of any

circumstances by which lessors title is in threat.
DUTY W.R.T TO USE OF PROPERTY

 Lessee to use property as a man of ordinary

prudence and not use it for a purpose for which it
was leased;

 Diversion to different use;

 ERECTION OF PERMANENT
STRUCTURES
 Nopermanent structures can be erected without the
consent of lessor;

 May be erected for agricultural purpose;

 Liable for eviction

 RESTORATION OF POSSESSION
 Upon expiration of tenancy by notice or efflux of
time, lessee bound to put lessor in possession;

 Lessee liable to pay damages & mesne profits;

RIGHT OF LESSOR’S
TRANSFEREE
 Deals with the assignment of reversion by the lessor;

 The assignee possess all his rights and shall be

subject to all the liabilities of lessor provided the
lessee agrees thereto;

 Mere assignment does not discharge the lessor,

unless lessee exonerates him and agrees to hold
assignee liable.
DETERMINATION OF
LEASE
 EFFLUX OF TIME
 Lease of definite period expires on the last day of the term.
Not notice required;

 Covenant for renewal – definite, does not ipso facto renew

lease, only entitles lessee to obtain new lease;

 Position of statutory tenant.

 CONTINGENT TERM

 Where term is dependent on happening of an event,

lease determines on happening of the event
 TERMINATION OF LESSOR’S
INTEREST
Where lessor’s interest is limited, the lease is
determined by the termination of lessor’s
interest
 MERGER OF INTEREST
 Where the greater estate and the less coincide & meet in
one and the same person;

 Doctrine of merger requires:

 Amalgamation of interest of the lessee and the lessor;
 In the whole of the property;
 At the same time;
 In one person
 SURRENDER

 Surrender to the person who has the reversion of

the property;

 Dealsonly with express surrender i.e. by mutual

agreement
 IMPLIED SURRENDER

 Surrender by operation of law;

 Occurs by:
Creation of new relationship; or
By relinquishment of possession
EFFECT OF SURRENDER AND FORFEITURE
ON UNDER-LEASES
(S.115)
 Surrender of a lease cannot operate to defeat the
rights of an under-lessee;
 lessor becomes entitled to rent from under-lessee;
 Forfeiture destroys the rights of sub-lessee expect
where forfeiture has been procured by fraud of
under lessee or relief has been granted
 NOTICE TO QUIT

 Lease is determined upon the completion / expiry

of the notice period given under S. 106;

 Such notice may be waived under S.113.

 FOREFEITURE

 Means loss of lessee’s right to use the property by

some fault on his part;

 Leasecan be determined by forfeiture on following

grounds:
Breach of an express condition;
Denial of landlord’s title
 Insolvency of the lessee

 Mere breach of the condition is not enough, lessor

must reserve for himself the right to re-enter;

 Lessor must give notice in writing of his intention

of determining lease.
 RELIEF AGAINST FORFEITURE IN OTHER
CASES
S.114 A
Suit of ejectment can be filed only if
Notice is given to lessee; and
If the breach is capable of being of being remedied, the
lessee fails to remedy after service of notice
 EXCEPTION

 ASSIGNMENT;
 SUB-LEASE;
 PARTING WITH POSSESSION;
 NON- PAYMENT OF RENT;
 DISPOSAL OF PROPERTY.
WAIVER OF FOREFEITURE
S.112
 Forfeiture may be waived by the lessor:
If he accepts rent due. Such acceptance is not after
institution of suit.

Accepts distress for such rent;

Or does any act which indicates subsistence of lease.

 Waiver is possible only if Lessor was aware of
such a breach;

 Waiver once made cannot revoked

 RELIEF AGAINST FORFEITURE FOR NON
PAYMENT OF RENT
S.114
 Court may at its discretion instead of passing a decree
of ejectment, relieve the lessee against forfeiture;

 If lessee pays rent or tenders rent in arrears with

interest and cost of suit;
 EFFECT OF HOLDING OVER

 Tenant who continues to hold possession after the

determination of the lease, but with the consent of
the lessor;

 Such lease is deemed to be renewed for year to

year or month to month