PROPERTY LAW

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law university 3 & 5 year LLB
ANIL KUMAR K T LLB COACH
Property law
Most important questions (Pattern of 10 and 6 marks)
1. Define transfer of property and state properties which cannot be
transferred.
2. Explain the concept of immovable property and transfer of property.
3. Define transfer of property? State whether to be partition surrender
compromise and gift amounts to transfer under the act.
4. Discuss the law relating to the transfer of property made for the benefit
of unborn person.
5. Write a note on oral transfer and Essentials of valid trust.
6. State the provisions governing the transfer made during the pendency of
litigation.
7. Explain the provision of doctrine of election.
8. Write a note on right of redemption.
9. What are the rights of mortgager?
10.Explain the statutory provisions of trustee.
11.Define mortgage? Explain the different kinds of mortgages.
12.Explain the circumstances which the mortgage sell the mortgaged
property without intervention of court.
13.Define sale? Explain the rights and liabilities of seller?
14.What are the modes of termination of lease.
15.Discuss the various types of trusts as given in the Indian trust act.
16.What is an actionable claim? How can an actionable claim transferred?
17.Write a note on onerous gift and apportionment.
18.Certain obligations are in the nature of trust discuss.
19.Explain the rights and of a beneficiary in trust.
20.Who is an Ostensible owner? When a transfer from an ostensible owner
is protected against the real owner?
21.What is lispendens? Mention the conditions necessary before this plea
can be raised.
22.All kinds of properties are transferrable comment.
23.What do you mean by vested interest and contingent interest.
 24.Explain the effects of condition restraining alienation of property.
25.What are the essentials of valid lease?
26.Discuss the legal requirements of valid transfer.
27.Explain the circumstances under which creditors can set aside a transfer
as fraudulent.
28.Write a note on mortgagee’s power of sale without interpretation of
court.
29. Write a note on free closure.
30.Discuss the essentials of lease and state how lease are made.
31.Write a note on Improvements made by bonafide holder.
32.Discuss the rights and liabilities of beneficiary.
33.Write a note on extinction of trust and public trust.
34.Write a note on accumulation.
35.Define gift? Explain the principles relating to revocation?
36.Distinguish between apportionment by time and apportionment by
estate.
37.Write a note on fraudulent transfer and Transfer of property by
exchange.
38.Distinguish between trust and bailment.
39.Write a note on attestation.
40.What are the effects of sale by co-owner?
41.Property of any kind may be transferred? State the exceptions to this
rule.
42.Distinguish between lease and license.
43.State the exceptions rule against perpetuity as provided in the transfer
of property act.
44.Explain the law relating to the mortgages right of redemption.
45.Discuss the doctrine of part performance. State the difference between
Indian law and part performance.

BY
ANIL KUMAR K T
LLB COACH
1.Define transfer of property and state properties which cannot be
transferred.
Introduction:
Meaning of Transferable Property: – Any property which is transferable, it can
be passed or moved from one person or organization to another and used by
them. Section 6 to the transfer of property act, 1882 states that property of
any kind may be transferred, except those which are provided by this act or
by any other law for the time being in force. Unless there is some legal
restriction preventing the transfer, the owner of the property may transfer it.
The person insisting non-transferability must prove the existence of some law
or custom which restricts the right of transfer. Unless there is some legal
restriction preventing the transfer, the owner of the property may transfer it.
However, in some cases, there may be a transfer of property by an
unauthorized person who subsequently acquires an interest in such property.

Exceptions to the transfer of property come under Section 6(a) – 6(i) of the
act. So the following are Non-Transferable Property under the act: –
1. Spes Succession [Section 6(a)]: –
o Clause (a) describes spes succession cannot be transferred.
This clause states that the transfer of a bare chance of a
person to get a property is prohibited under this section. For
example, Arun expecting that Chandini, his aunt, who had
no issues, would bequeath her house worth Rs. 50,000
transfers it to Bhushan. The transfer is invalid as it is a mere
matter of chance of receiving the property on the part of
Arun. Thus, it is invalid.
2. Right of re-entry [Section 6(b)]: –
o Clause (b) mentions that the right of re-entry cannot be
transferred. The right to re-entry implies a right to resume
possession of the land which has been given to someone
else for a certain time. The section mentions that the right
of re-entry cannot be transferred by itself apart from the
land.
o A mere right to re-entry cannot be transferred to anyone
except the owner of the property affected thereby.
o For example: – ‘A’ grants his plot to ‘B’ on a lease, for 5
years; with a condition that ‘B’ cannot dig a tank on the
land, if ‘B’ does any such act then ‘A’ has the right to re-
enter. So, here ‘A’ cannot transfer his right to re-entry to ‘C’
 for the breach of the condition. If ‘A’ does any such act of
transfer of his right to ‘C’ then this transfer will be regarded
as invalid.
3. Easement [Section 6(c)]: –
o Clause (c) mentions that easement cannot be transferred.
An easement is a right to use or restrict the use of land of
another in some way. For example, the right of way or right
of light cannot be transferred.
o An Easement cannot be transferred except the dominant
heritage.
o For example: – Right to way, right to light, right to water,
etc. These rights cannot be transferred without property
which has its benefits.
4. Restricted Interest [Section 6(d)]: –
o Clause (d) mentions that an interest restricted in its
enjoyment of himself cannot be transferred. For instance, if
a house is lent to a man for his personal use, he cannot
transfer his right of enjoyment to another.
o A person having right to a property can transfer the same
either subject to a restriction or without restriction. Where
property is transferred subject to a restriction the transferee
is supposed not to act contrary to the restriction. Thus, if
property is transferred to the transferee with a restriction
that it is to be enjoyed him personally, he shall have no right
to transfer such a property and if he transfers the property
in violation of the restriction the transfer shall be void under
this clause. Under this clause, a trustee cannot alienate his
office because his office is based on personal confidence.
5. Right to Future Maintenance [Section 6(dd)]: –
o Clause (dd) restricts the transfer of the right to
maintenance. Such a right cannot be transferred as such
right is for the personal benefit of the concerned person.
o The right to future maintenance is only for the personal
benefit of the person to whom it has been granted, thus it
cannot be transferred.
o “A right to future maintenance, in whatsoever manner
arising secured or determined, cannot be transferred”. A
right to receive maintenance is a personal right, although
any particular property or the income thereof may be
charged with it. The right of maintenance is a personal right
 and it is not transferable. But this right can be transfer in
case of any arrears of maintenance but as to future
maintenance it is not valid.
6. Mere Right to Sue [Section 6(e)]: –
o Clause (e) provides that mere right to sue cannot be
transferred. The prohibition has been imposed as the right
to sue is a right which is personal and exclusive to the
aggrieved party. For example, a person cannot transfer his
right to sue for the damages suffered by him due to breach
of contract by the other party.
o A mere right to sue cannot be transferred. The right to sue is
personal to the party aggrieved.
o For example: – Damages for the breach of contract or tort,
as it claims for past means profits for suing an agent for his
accounts, for pre-emption, etc.
o These rights cannot be transferred.
7. Public Office [Section 6(f)]: –
o Clause (f) forbids the transfer of public offices. The
philosophy behind the prohibition is that such a transfer
may be opposed to public policy in general. A person is
eligible to hold a public office on the grounds of his personal
qualities, and such qualities cannot be transferred. Thus, the
transfer of public offices is prohibited under this section.
o A public office is non-transferable property therefore cannot
be transferred, nor can the salary of the public officer be
transferred.
o Thus, prohibition is based on public policy as a public office
is held for personal qualities.
o If the office is not public, it will be transferable, even if the
discharge of its duties is indirectly beneficial to the public.
8. Pensions [Section 6(g)]: –
o Clause (g) of section 6 provides that pensions cannot be
transferred. Pensions allowed to military and civil
pensioners of government and political pensions cannot be
transferred. In simpler terms, a pension may be understood
as any periodical allowance which may be granted in regard
to any right of office but only on account of the past services
offered by the pensioner.
 o The stipends which are paid to military, naval and air forces
and civil pensions of government and political pensions
cannot be transferred.
o Pensions mean personal allowance or stipend not
concerning any right of office but of special merit.
9. Nature of Interests [Section 6(h)]: – In this, no transfer can be made
in three conditions: –
o This clause prohibits transfer which will oppose the interest
affected thereby. The transfer is also forbidden if the object
or consideration of the transfer is unlawful. Moreover, a
transfer by a person who is legally disqualified from being a
transferee is also forbidden.
o Opposed to the nature of business: – There are things which
from their very nature are not transferable. It includes, res
communes (i.e. things of which no one in particular is the
owner) or also known as res nullius (i.e. thing without an
owner such as air, water of rivers etc.). These things from
their very nature are not transferable. Similarly, res extra
commercium (i.e. things which cannot be the subject of
commerce) e.g. property dedicated to a idol cannot be
transferred.
o Anything with an unlawful object or consideration within
the meaning of Section 23 of the Indian contract act, 1872
cannot be transferred. A property otherwise transferable
become non-transferable when the object or the
consideration of the transfer is unlawful. Thus a house given
on rent for the purpose of gambling or prostitution being
immoral or opposed the public policy is invalid.
10.Statutory Prohibitions on the Transfer of Interest [Section 6(i)]: –
o Clause (i) of section 6 was inserted by the Amendment Act
of 1885. The clause declares that certain interests are
untransferable and inalienable. For example, a farmer of an
estate, in respect of which default has been made in paying
the revenue, cannot assign his interest in the holding.
o The general rule is that leasehold are transferable but this
clause makes an exception to this rule and declares certain
interest untransferable. 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 cannot assign or transfer their interest in
the holding.
o This section makes it clear that a tenant cannot have an
occupancy of a non-transferable right in any way to transfer
his interest.

2.Explain the concept of immovable property and transfer of property.

Definition of Immovable Property

Section 3 of Transfer of Property Act defines “Immovable Property” does not

include standing timber, growing crops or grass.[5]Taking a reference from this
definition, movable property includes standing timber, growing crops and grass.

Section 3(26) of the General Clauses Act 1897, “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”. [6]

Section 2(6) of The Registration Act,1908 defines “Immovable Property” as

under: “Immovable Property includes land, building, hereditary allowances,
rights to ways, lights, ferries, fisheries or any other benefit to arise out of land,
and things attached to the earth or permanently fastened to anything which is
attached to the earth but not standing timber, growing crops nor grass”. [7]

Joining all the 3 definitions, immovable property can be summed as :-

i. Land

ii. Advantages emerging out of the land

iii. Things connected to the earth

iv. Things Embedded in earth

v. Things attached to what is embedded in the earth

vi. Things established in the earth, with the exception of:-

a. Standing timber,

b. Developing harvest

c. Grass.
Meaning of Transfer of Property

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of
property. According to this section, 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 and other living persons. The phrase “living person”
includes a company or association or body of individuals, whether incorporated
or not, but nothing in this section shall affect any law for the time being in force
relating to or by companies, associations or bodies of individuals.

The word property in the Act has been used in one of the following senses:

tangible material things like house.

(ii) Rights which are exercised over material things like the right to sell or make
a gift of things.

(iii) Rights which are not exercised over any material such as the right to
repayment of a debt.

Kinds of transfer
Subsequent forms of transfer under the Act are:

• Sale– It’s an out-and-out transfer of property And also the

consideration is money.
• Mortgage– It’s a transfer of a limited interest during a property.
• Lease– A lease may be a transfer of a right to enjoy the immovable
property for a particular time.
• Exchange– It’s the same as sale, but differ in consideration. Here the
consideration is another thing not money.
• Gift– Here, there’s no consideration.

3.Define transfer of property? State whether to be partition, surrender

compromise and gift amounts to transfer under the act.
Meaning of Transfer of Property
Section 5 of the Transfer of Property Act, 1882 defines the term transfer of
property. According to this section, 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 and other living persons. The phrase “living person”
includes a company or association or body of individuals, whether incorporated
or not, but nothing in this section shall affect any law for the time being in force
relating to or by companies, associations or bodies of individuals.

The word property in the Act has been used in one of the following senses:
Tangible material things like house.

(ii) Rights which are exercised over material things like the right to sell or make
a gift of things.

(iii) Rights which are not exercised over any material such as the right to
repayment of a debt.

Which is not amounting to the transfer of property?

1.Partition- When two blood relatives like brother and brother dividing their
property between themselves is called partition. And it can’t be transfer of
property because that property was already in their own possession and no new
property is created. New is formed by co-sharer on the partition, it’s not a
transfer of property. His specific share, which settled in him earlier, is just
separated.

2.Surrender- A transferor has a contract to transfer some property with a minor.

But, if the guardian of the minor has a condition with another person then it will
not be a transfer of property.

3.Compromise- It depends on the facts and circumstances of every case. It may

or might not amount to transfer.
4.Discuss the law relating to the transfer of property made for the benefit of
unborn person.

Provision Under Transfer of Property Act, 1882

Section 13 of the Transfer of Property Act, 1882 provides that when for the
transfer of property, an interest therein is created for the benefit of an unborn
person at the date of the transfer, a prior interest is to be created in respect of
the same transfer and 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
person transferring the property in the property to be transferred.

The essential elements of section 13 have been discussed below. They are as
follows:

1. No Direct Transfer

A transfer cannot be directly made to an unborn person. Such a transfer can only
be brought into existence by the mechanism of trusts. It is a cardinal principle of
property law that every property will have an owner. Accordingly, if a transfer
of property is made to an unborn person, it will lead to a scenario wherein the
property will remain without an owner from the date of transfer of property till
the date the unborn person comes into existence.

2. Prior Interest

If the circumstances are such that there is no creation of trust, then in that case
the estate must in some other person between the date of transfer and the date
when the unborn person comes into existence. In simpler words we can say that
the interest in favour of an unborn person must always be preceded by a prior
interest created in favour of a living person.

3. Absolute Interest

The entire property must be transferred to the unborn person. The transfer to
an unborn person must be absolute and there should be no further transfer from
him to any other person. An interest which remains only for the lifetime cannot
be conferred on an unborn person. Under the English law, an unborn person can
be conferred an estate only for his lifetime. This concept of English law,
however, is subject to a restriction known as the rule of double possibilities. This
rule was recognised in the case of Whitby Mitchell. The rule states that life
interest to an unborn person should not be transferred as doing so will give rise
to existence of two possibilities. The first possibility will be the birth of the
unborn person to whom the life estate was to be transferred and the second
possibility will be the coming into existence of issues of that unborn persons.
Thus, the transfer of property to an unborn person can be permitted only if the
absolute interest is transferred and not just the life estate.

When an Unborn Person Acquires Vested Interest

The provisions of section 20 of the Transfer of Property Act, 1882 mention the
concept that in what circumstances unborn person acquires vested interest.
Unborn person may not be able to enjoy the possession of property as soon as
he is born but he may, however, acquire a vested interest in the property since
his birth. Where, on a transfer of immovable property interest is created for the
benefit of an unborn person, he acquires upon his birth, a vested interest,
although he may not be entitled to the enjoyment thereof immediately on his
birth. The mentioned provision however may be waived off if the terms of the
agreement mention a contrary clause.

The section lays down that an interest created for the benefit of an unborn
person vests in that unborn person as soon as he is born. Such interest remains
vested interest even though he may not be entitled to the enjoyment thereof
immediately on his birth.

5.Write a note on oral transfer and Essentials of valid trust.

Definition
Section 9 of the Act[6] talks about oral transfer of property. It states that,

“A transfer of property may be made without writing in every case in which a

writing is not expressly required by law.”

Illustration of the definitions and case laws

This section essentially mandates that a transfer of property may be made

without writing in every case in which writing in not expressly
mentioned/required by law but it is also essential to note here that the act is
not exhaustive of such kinds of transfers.

In a very famous case of Sarandaya Pillay v Sankarlinga Pillai[9], Ramaswami J.,

of Madras High Court observed “the test, therefore in this country to determine
whether a transaction (be it a transfer or not) can be made without writing is to
see if it is expressly required by law to be in writing. If the transaction is a
transfer of property and there is no express provisions of law requiring it to be
in writing, section 9 will enable it to be made without writing and vice versa”
through which an essential inference can be drawn and it can be said that if the
transaction is a transfer of property and there is no express provision of law
requiring it to be in writing then the general principle referred above will enable
it to be validly made without writing.

Conditions for creation of a Trust

There are certain conditions attached while forming a charitable trust. The
conditions are listed as follows:

1. There must be a founder of the trust, for which purpose the trust is to
be created.
2. There must be trustees.
3. The main ingredient: which is the property of the trust.
4. Beneficiaries, those people who will basically get benefited from the
trust created.
5. There must be an intention to create trust.
6. Purpose of trust must be known.
7. There must be a transfer of the property to the trustee himself.
8. The settlor has to give up all his interest in the property.
9. There must be a clear descriptive analysis of the property.
10.It must be clearly mentioned that for what purpose the trust has been
created, it’s objects.
11.In all cases, there is no such requirement of the trust deed. But in
certain cases, it is advisable to have such an instrument.

6.State the provisions governing the transfer made during the pendency of
litigation.

Introduction
The concept of Pendente Lite is imbibed under the Doctrine of Lis
Pendens wherein ‘Lis; is referred to ‘litigation’ and ‘Pendens’ is referred to
‘continuing or pending’. Hence, the Doctrine of Lis Pendens in its literal sense
means pending litigation. The doctrine of Lis Pendens has been expressed or
been derived from the Latin maxim “Ut pendent nihil innovetur” and that
means “during the pendency of suit or litigation, nothing new should be
introduced or nothing should be changed.” Thus the principle embodied in the
Doctrine states that, during the pendency of any suit related to the title of the
property, no new interest can be created or added on the particular property
which is subject matter to the suit. In other words the Doctrine prohibits the
transfer of disputed property.

The Doctrine seems to be based on the concept of notice because a pending

suit is considered as a constructive notice for the disputed property pendente
lite. Any person related to the title of the property or subject matter of the
suit, will be bound by the decision of the court. Therefore, it can be said that
the Doctrine gives power, jurisdiction or control to the court over the disputed
property. Therefore, the party to the suit of title dispute is not allowed to
transfer the property or to take any such decisions, which can interfere with
the court’s proceedings. Hence the doctrine prevents the litigants from
transferring or disposing the disputed property, for the administration of
justice.

Application of Section 52 of the Transfer of Property Act

The Doctrine of Lis Pendens and the principle of the maxim “Ut pendent nihil
innovetur” are imbibed under Section 52 of the Transfer of Property Act,
1882. The section applies to the suits related to title dispute over any
immovable property and the section prohibits or restricts any transfer,
alienation or disposition of that immovable property in question till the
litigation is pending or unless the judgement comes from the court of
competent jurisdiction so as to affect the rights of the opponent. The
Explanation to Section 52 makes it clear that lis shall be deemed to commence
from the date of the presentation of the plaint and to continue until the suit or
proceeding has been disposed of by a final decree or order, and complete
satisfaction or discharge of such decree or order has been obtained.

This principle was introduced in the case of Bellamy v. Sabine under which Lord
Turner mentioned “It is, as I think, a doctrine common to the Courts both of
Law and Equity, and rests, as I apprehend, upon this foundation – that it would
plainly be impossible that any action or suit could be brought to a successful
termination, if alienations pendente lite were permitted to prevail. The
plaintiff would be liable in every case to be defeated by the defendant’s
alienating before the judgment or decree, and would be driven to commence
his proceedings de novo, subject again to be defeated by the same course of
proceeding”

Conditions to be satisfied
Hon’ble Supreme Court in Dev Raj Dogra & Ors. v. Gyan Chand Jain &
Ors. construed the meaning of Section 52 of the Transfer of Property Act and
laid down following conditions to be fulfilled to fall under Section 52:

1. A suit or a proceeding in which any right to immovable property is

directly and specifically in question must be pending;
2. The suit or proceeding should be pending in a Court of competent
jurisdiction;
3. The suit or the proceeding should not be a collusive one;
4. Litigation must be one in which right to immovable property is
directly and specifically in question;
5. Any transfer of such immovable property or any dealing with such
property during the pendency of the suit is prohibited except under
the authority of Court, if such transfer or otherwise dealing with the
property by any party to the suit or proceeding affects the right of any
other party to the suit or proceeding under any order or decree which
may be passed in the said suit or proceeding.

7.Explain the provision of doctrine of election.

What is doctrine of election?
In simple words, election is a process that puts a person in a situation where he
has to choose between two alternative rights or two inconsistent rights.
Doctrine of election is a common law principle of equity that requires that a
person is under an obligation to elect or choose between two inconsistent and
alternative rights in the event where there is an ‘apparent intent’ of the
grantor that the grantee should not enjoy both. Doctrine of election is
incorporated under section 35 of the Transfer of Property Act, 1882.

What are the principles underlying the doctrine of election?

The Latin maxim “quod approbo non reprobo” means that ‘no one can
approbate and reprobate.’ In other words, a person cannot accept a thing and
reject another in the same instrument. This maxim is one of the underlying
principles of doctrine of election. The Courts of Equity in England followed the
legal maxim ‘Allegans contraria non est audiendus’ which means ‘he is not to
be heard who alleges things contradictory to each other.’ For the first time,
doctrine of election was elaborately explained by Lord Hather in the case
of Cooper v Cooper [1874] –
What are the essential conditions for the applicability of the doctrine of
election?
In the case of Mst. Dhanpatti v Devi Prasad and others [1970] the essential
conditions for the doctrine of election were observed by the court.
The essential conditions for the applicability of the doctrine of election are as
follows:

1. The transferor must profess to transfer a property which he has

no right to transfer;
2. The transferor must confer a benefit on the owner whose
property he intends to transfer to another person;
3. The transfer and the conferring of benefit must constitute parts of
the same transaction;
4. The benefit must be directly conferred on the owner of the
property;
5. The benefit must be conferred on him in the same capacity in
which he is the owner of the property;
The second paragraph of section 35 states that it is immaterial whether the
transferor at the time of transfer of property knows or does not know it to be
his own property.

What are the effects of election against the transfer?

If the owner gives disapproval to transfer of his property –

1. He must renounce the benefits confer on him;

2. The benefit intended for him would revert back to the transferor
or his legal representatives.
In what cases the disappointed transferee can claim compensation?
The doctrine of election is based on the principle of compensation and not of
forfeiture. In the following cases the disappointed transferee has a claim for
compensation:

1. Where the transfer is gratuitous;

2. Where the transferor has before the transfer of property died;
 3. Where the transferor has before the transfer of property become
incapable of making a fresh transfer;
4. Where in the all cases the transfer of property is for consideration.
What are the modes of election?
The paragraphs of section 35 of TPA, 1882 provide two modes of election.

1. Election may be expressed;

2. Election may be implied by conduct.
In the first mode where election is made in express words, it is final and
conclusive. In the second mode where election is made impliedly by conduct,
there are presumptions as election.

Paramada Dasi v Lakhi Narain Mitter [1885] ILR 12 Cal 60

In this case the plaintiff brought a suit in 1873 to enforce her claim for
maintenance against the ancestral property. In the present case the court held
that, the plaintiff clearly made her election and she elected to have
maintenance from the property then the property was devised to her nephew.
She must have known that this maintenance was provided to her instead of
her ancestral property. So now, in the present case she can not claim to
recover the ancestral property which is sold to the defendant.

8.Write a note on right of redemption.

Right to Redemption (section-60)

It is one of the most important rights of a mortgagor given under section of the
Act. This right puts an end to mortgage by returning the property of
mortgagor. The right to redeem further grants three rights to the mortgagor:

1. Right to end mortgage deal

2. Right to transfer mortgaged property to his name
3. To take back possession of property in case of delivery of possession

In the case of Noakes & Co. vs. Rice (1902) AC 24, Rice was a dealer who
mortgaged his property, premise and goodwill to N subject to the provision
that if R paid back the whole amount, the property would be transferred back
to his name or any other person’s. A covenant was attached that stated
whether or not the amount is due, R would only sell Malt liquor by N in his
premises. Because of this covenant, R had difficulty in redemption and it didn’t
give him absolute right over his property. House of Lords held that anything
which clogs this right is bad and they came up with the concept that ‘once a
mortgage always a mortgage’ and said that mortgage could never be
irreducible.

This principle was added to protect the interest of a mortgagor. Any condition
or provision which prevents a mortgagor from redeeming his mortgaged
property is a clog on the right of redemption. The right to redemption
continues even though the mortgagor fails to repay the loan amount to
mortgagee. In the case of Stanley v. Wilde, (1899) 2 Ch 474, it was held that
any provision mentioned in the mortgage-deed which has an effect of
preventing or impeding the right to redemption is void as a clog on
redemption.

• Exceptions to the right- The right to redeem has three exceptions. It

can be extinguished under the following cases:

• By the act of parties

• By operation of law

• By decree passed by the court

9.What are the rights of mortgager?

Rights of Mortgagor
Every mortgage-deed leaves a right to the mortgagor and a corresponding
liability for mortgagee and vice versa. Following are the rights given to a
mortgagor given by the Transfer of Property Act, 1882:

1. Right to redemption
2. Right to transfer mortgaged property to a third party instead of
retransferring
3. Right of inspection and production of documents
4. Right to accession
 5. Right to improvements
6. Right to a renewed lease
7. Right to grant a lease

Right to Redemption (section-60)

It is one of the most important rights of a mortgagor given under section of the
Act. This right puts an end to mortgage by returning the property of
mortgagor. The right to redeem further grants three rights to the mortgagor:

1. Right to end mortgage deal

2. Right to transfer mortgaged property to his name
3. To take back possession of property in case of delivery of possession
In the case of Noakes & Co. vs. Rice (1902) AC 24, Rice was a dealer who
mortgaged his property, premise and goodwill to N subject to the provision
that if R paid back the whole amount, the property would be transferred back
to his name or any other person’s. A covenant was attached that stated
whether or not the amount is due, R would only sell Malt liquor by N in his
premises. Because of this covenant, R had difficulty in redemption and it didn’t
give him absolute right over his property. House of Lords held that anything
which clogs this right is bad and they came up with the concept that ‘once a
mortgage always a mortgage’ and said that mortgage could never be
irreducible.

Right to inspection and production of documents (section-60B)

This section is also inserted by the Amendment Act of 1929. It is the right of
mortgagor to ask mortgagee for the production of copies of documents of the
mortgaged property in his possession for inspection on notice of reasonable
time. The expenses incurred on production or copies of documents or travel
expenses of a mortgagee are to be paid by the mortgagor. This right is
available to the mortgagor only as long as his right to redeem exists.

Right to Accession (section-63)

Basically, accession means any addition to property. According to this right
mortgagor is entitled to such accession to his property which is in the custody
of mortgagee. There are two types of accession:

• Artificial accession- It is when mortgagor made some efforts and it

increased the value of land.
• Natural accession- The name itself defines i.e. without any man-made
efforts.
In case an accession is made to the property due to the efforts of mortgagee or
at his expense and such accession is inseparable, mortgagor, in order to be
entitled to such succession, needs to pay the mortgagee the expense of
acquiring such accession.

Right to Improvements (section-63A)

According to this right if the mortgaged property has been improved while it
was in possession of mortgagee, then on redemption and in the absence of any
contract to the contrary mortgagor is entitled to such improvement. The
mortgagor is not liable to pay mortgagee unless:

• Improvements made by the mortgagee were to protect the property

or with the prior permission of mortgagor.
• Improvements were made by the mortgagee with the permission of
the public authority.

Right to Renewed Lease (section-64)

If the mortgagor is entitled the mortgaged property is a leasehold property and

during the duration of mortgage the lease gets renewed then, on redemption
the mortgagor is entitled to have the benefit of the new lease. This right is
available to the mortgagor unless he enters into any contract to the contrary
with mortgagee.

Right to grant a Lease (section-65A)

This right was introduced by the Amendment Act of 1929. Prior to this right,
the Transfer of Property Act did not allow a mortgagor to lease out the
mortgaged property on his own but only with the permission of mortgagee.
Now, a mortgagor has the right to lease out the mortgaged property while he
is in lawful possession of that property, subject to the following conditions:

• All conditions in the lease should be according to the local laws and
customs to prevent any fraudulent transaction.
• No rent or premium shall be paid in advance or promised by
mortgagee.
• The contract shall not contain any provision for the renewal of the
lease.
• Every such lease shall come into effect within a period of six months
from the date of its execution.
• Where the mortgaged property is a building, the term of the lease
should not exceed three years in total.

10.Explain the statutory provisions of trustee.

Who is a Trustee?
A Trustee is a person appointed under a Trust to administer the Trust property. A
trustee should be a person who is capable of holding property and who is
competent to contract. A company, being an artificial person created by law, can
be a trustee as well. A Trustee is specifically required to accept or disclaim the
trust entrusted upon him, either expressly or by way of his actions. There can be
more than one trustees in a single Trust.

Duties/Liabilities of a Trustee
The Indian Trusts Act, 1882 provides for certain duties/liabilities of a Trustee, we
shall see each one of them in brief detail.

• Execution of Trust
The trustee is required to actually carry out the purpose of the trust as laid out
in the Trust deed. The trustee is also required to follow the directions of the
Author of the Trust at the time of creation of the trust.
However, the trustee is not required to follow such directions if they are
impractical or illegal.

• Acquaintance of Trust Property

The trustee is required to know about the details, whereabouts and current
condition of the trust property and also to take appropriate measures to secure
the trust property.

• Protection of Title of Trust Property

The trustee is required to defend all the claims against the title of the Trust
property and to take adequate measures to assert and protect the title of the
property.

• Not to set up Title adverse to the beneficiary

As the trustee is entrusted with the trust property to maintain it for the benefit
of the beneficiaries, it is expected and required of the trustee to not set up any
title adverse to the beneficiary.

A good example explaining this point would be, suppose the trustee is entrusted
with an immovable property and is required to apply the rents and profits of
such property for the benefit of the beneficiaries. The trustee is also given the
rights to sell such property.

It is expected of the trustee that the trustee would not sell such property to
himself or anyone of his relatives or friends or a person of like nature, as such
an action on the Trustee’s part would be adverse to the beneficiaries, and the
trust factor upon which the foundation of the trust is built, would cease to exist.

• Take care of the Trust Property

The trustee is required to provide adequate safeguard and required to apply
such prudence to the trust property, as that of an ordinary man would apply to
his own property.

However, the Act provides that the Trustee would not be responsible for any
loss caused to the trust property or the benefits arising thereof, if he had applied
such prudence as would an ordinary man would apply to his own property.

• Convert perishable property

If the trust property is of such nature, that with time, it would keep on
deteriorating and keep losing value, the trustee is required to convert, i.e. sell
and convert such property into cash proceeds and apply such proceeds for the
benefits of the beneficiaries. This duty is especially required of a trustee when
the trust is created for the benefit of several persons in succession.

• Be impartial among the beneficiaries

When the trust is created for the benefit of several beneficiaries, the trustee is
required to apply the benefits received from the trust property equally among
the beneficiaries, without being partial to anyone or any group among the
beneficiaries.

• Protect the trust property from adverse beneficiary

When there are several beneficiaries of a trust, and one or more of such
beneficiaries commit, or threaten to commit an act, which would be adverse to
the interest of other beneficiaries and the trust in general, the trustee is
required to take measures to stop such act of such beneficiary/beneficiaries.

• To maintain and keep books and accounts

The trustee is required to keep a clear and accurate account of the trust property
and at all times, provide the same to the beneficiary upon the request of the
beneficiary.

Powers/Rights of a Trustee
Certain rights/powers are conferred upon the Trustee under the Indian Trusts
Act, 1882. They are discussed in detail in the following paragraphs.

• Right to Title deed

The trustee is entitled to possess the trust deed or any other instrument by
which the trust is created, and the title documents of the trust property.

• Right to reimburse expenses incurred for trust purposes

The trustee has the right to be reimbursed for the expenses incurred by him for
the purpose of the trust, like expenses incurred for the execution of the trust,
for the preservation of the trust property, for the protection or support of the
beneficiary, etc.

• Right to re-collect overpayment

If a trustee has mistakenly made a payment over and above the required amount
to a beneficiary, the trustee has the right to collect such excess amount from the
beneficiary. Such collection might be made from the interest of the beneficiary
in the trust property, and if not possible, then even from the beneficiary
personally.

• Right to indemnity from breach of trust, by a gainer

If a person has committed a breach of trust and has gained from such breach,
the trustee has the right to indemnify himself against such gain by the person
who has committed such a breach.

However, if the trustee himself is also guilty of fraud in committing such a

breach, then he loses the right to indemnify himself in such a situation.

• Right to seek Court’s opinion in managing trust property

The trustee has the right to apply to the Court, by way of a petition, to seek the
Court’s opinion, advice, opinion or direction with regards to the management of
the trust property.

• Right to Settle accounts

When the duties of a trustee are complete, the trustee is entitled to have the
accounts of the administration of the trust property examined and settled, and
when no benefit is due to any beneficiary under the trust after the completion
of the trustee’s duties, the trustee is also entitled to receive an
acknowledgement to that effect.

• Right to sell trust property, along with power to convey

The trustee has the power to sell the trust property as per the instructions laid
out in the trust deed, and if no such instructions are laid out, then by way of
public auction or private contract, in any way the trustee deems fit.

• Right to vary or rescind the sale of trust property, and re-sell the same
The trustee has the power to vary the conditions of the sale of trust property or
even rescind such sale. He also has the power to re-sell the same property. If in
such recession and re-sale, if any loss occurs, the trustee is not liable for the
same.

• Power to manage investments

The Trustee has the power to sell any existing investment of the Trust property
and invest the same into any other instrument, as he deems fit.

However, if there is a beneficiary who is competent to contract, then such power

cannot be exercised by the trustee without such beneficiary’s consent in writing.

• Power to apply property of Trust for maintenance of minor

beneficiaries
In case the beneficiary is a minor, the Trustee has the power to apply, i.e. use
the income for the Trust property for the maintenance of the minor.
Maintenance of the minor may include functions such as food and clothing,
Education, Religious worship, marriage, funeral, etc.

• Power to compound
This power may also be called as power to settle disputes. When there is any
dispute related to any of the trust property, the trustees, when there are two or
more trustees appointed, or the sole trustee, may settle the dispute in the
manner they think fit. For example, they may compromise, compound, abandon
the dispute or may even submit the dispute to arbitration. In the doing of such
settlement, the sole trustee or the trustees may enter into any agreement, or
instruments, as they deem fit.

• Trustees to continue with trust if one of several trustees dies or

disclaims
When there are two or more than two trustees appointed, and one of them
disclaims the trust or dies, the remaining trustees shall have the power to deal
with the trust property, as provided in the Trust deed.

Conclusion
It is said that the relation of Trust is like a glass. Once broken, it is never the same
as before. By a prima facie observation of the Indian Trust Act, it can be seen
that apart from the legal aspects, the duties and powers provided in the Act
intend to preserve the delicate relation of trust, so that the trust may be kept,
and the intention with which the trust is formed may be fulfilled. Therefore, here
we may conclude with the duties and powers of a Trustee as provided for in the
Indian Trust Act, 1882.

11.Define mortgage? Explain the different kinds of mortgages.

What is Mortgage?
When property, land or any other commodity is used as collateral to borrow
money or to take a loan from a lender, it is known as Mortgage. In simpler
terms, when a person borrows money from a lender (bank loans) and signs up
an agreement where he/she gets cash in exchange for a real estate property as
a guarantee with the bank until the entire amount is repaid is called a
mortgage.

Types of Mortgages
Below are the different types of mortgages:

• Simple Mortgage: In such type of mortgage, the borrower needs to sign

an agreement stating that if he/she is unable to pay back the borrowed
amount in specified time duration, then the lender can sell the property
to anyone to get his money back
• Mortgage by Conditional Sale: Under such mortgage, the lender can put
a certain number of conditions which the borrower must follow in terms
of repayment. These conditions may include the sale of the property if
there is a delay in the monthly instalments, an increase in the rate of
interest due to delay in repayment, etc.
• English Mortgage: In this type of mortgage, the borrower has to transfer
the property in the name of the lender at the time of taking money, at a
condition that the property would be transferred back to the borrower
once the complete amount is paid back
• Fixed-Rate Mortgage: When the lender assures the borrower that the
rate of interest will remain the same throughout the loan period is called
Fixed-Rate Mortgage
• Usufructuary Mortgage: This kind of mortgage gives a benefit to the
lender. The lender has the right over the property for the due course of
the loan period, he can put the property on rent or use it for other
purposes until the repayment of the amount. But the main rights lie with
the owner himself
• Anomalous Mortgage: A combination of different types of mortgages is
called an Anomalous Mortgage
• Reverse Mortgage: In this case, the lender lends money to the borrower
on a monthly basis. The entire loan amount is divided into instalments
and the lender gives the borrower that money in instalments
 • Equitable Mortgage: In this type of mortgage, the title deeds of the
property are given to the lender. This is a common phenomenon in the
banking mortgage loans. It is done to secure the property

12.Explain the circumstances which the mortgage sell the mortgaged

property without intervention of court.
Introduction:
A mortgagee can take possession of mortgaged property in case of default.
Under the Transfer of Property Act, if there is default in payment of mortgage
money, the mortgagee can take possession of mortgaged property and sell it
without intervention of a Court
In order to sell the mortgaged property in the event there is default in
payment of mortgaged-money, the mortgagee either needs to obtain order
from Court or can be done without intervention of court.

• According to section 69 of the Transfer of Property Act, 1882, upon

default in making payment of the mortgaged-money, the mortgagee
can sell the mortgaged property without intervention of the court
under following conditions:

1. The mortgage must be an English mortgage and neither of the

mortgagor must be Hindu, Mohammad and/or Buddhist and/or a
member of any other sect, caste, tribe as specified in the official
gazette of State government;
2. The mortgagee must be the Government and power of sale without
interference of Court is expressly conferred on the mortgagee by the
Mortgage Deed;
3. The mortgaged property must be situated at Calcutta, Madras and/or
Bombay and/or any other town as notified by the concerned State
Government in the Official Gazette and the power of sale without
interference of Court be expressly conferred on the mortgagee by the
Mortgage Deed.

13.Define sale? Explain the rights and liabilities of seller?

Introduction:
Section 55 and sub-sections of the “Transfer of Property Act, 1882” confer
certain Duties, Rights and Liabilities on the Seller and the Buyer. They have
been listed below and they should be taken in to account while entering into
any deal of immovable property.

Seller’s duties before the Sale

1. DISCLOSURE OF MATERIAL DEFECTS: The seller must disclose all
the material defects over the property. The seller is bound to
disclose all latent material facts but not the latent fact. The latent
material fact is that which can’t be discovered by doing a
reasonable investigation and the latent defect is that which is
obvious and a buyer can discover by doing a reasonable
investigation. In the case of latent defects, the principle of caveat
emptor (buyer be aware) implies. If the seller fails to inform the
buyer about the latent defect, it leads to misrepresentation, and
the buyer has the right to repudiate the contract of sale.
2. PRODUCTION OF TITLE DEEDS: The seller is bound to produce title
deeds on the demand of the buyer for examination and his(buyer’s)
satisfaction. The seller is bound to arrange for all the documents,
required for review, that are in his possession or power.[3] If the
seller fails to produce documents, the buyer has the right to get his
money back, which he paid in advance, and has the right to
repudiate the contract.
3. ANSWER RELEVANT QUESTIONS AS TO TITLE: The seller must
satisfy the buyer with all the questions related to title deeds. There
is a chance that the buyer will not meet with the title deed and have
some questions related to the property regarding the title of
ownership, rent, etc. the seller is bound to give all the answers
associated with the title. Still, if the buyer didn’t ask any questions,
the seller must inform the buyer.
4. DUTY TO EXECUTE CONVEYANCE: The seller must execute
conveyance, i.e. transfer the ownership. The sale deed will be
completed with the seller’s signature or thumb impression on the
sale deed. Once the buyer makes the payment, the seller is required
to execute the conveyance.
5. CARE OF PROPERTY AND TITLE-DEEDS: After the execution of
the contract of sale, the seller must take care of the property and
the title deed as the property’s owner until it is delivered to the
 buyer. The seller acts as a trustee of the buyer between the
execution of conveyance and the property’s delivery.
6. PAYMENT OF OUTGOINGS: The seller must clear all the outgoing
payments over the property. Before the sale, the seller has to pay
all the government taxes, revenues, and rent over the property. The
buyer is not bound to pay any outgoings due before the sale of the
property. The seller is bound to pay these outgoings up to the date
of the sale.
Seller’s duties after Sale
1. GIVING POSSESSION OF PROPERTY: The seller is bound to give
possession of the property after the sale. After execution of title
deeds, the seller has to deliver the possession to the buyer or any
person authorised by the buyer.
2. DELIVERY OF TITLE DEEDS: After completing the sale, the seller has
to transfer title deeds to the buyer, who thereafter, becomes the
rightful owner of the property and title deeds are no use to the
seller. The seller is bound to transfer all other documents related to
the property and is required by the buyer.
Seller’s after before Sale
1. SELLER’S LIEN OR CHARGE: After completion of the sale, if the
consideration or any part of it remains unpaid, the seller acquires a
lien or charge on the property. The completion of the sale does not
depend on the payment of price but on the delivery of possession.
Therefore, the only way to get an unpaid price is by creating a
charge over the property.
2. INTEREST ON UNPAID PRICE: Seller also has a right to get
interested on the unpaid price. If the buyer is already in possession
of the property, the seller is entitled to claim interest on the unpaid
amount from the date on which such possession was delivered, and
not from the date of transfer of ownership. The seller has a right
not only to get his unpaid price but also to an interest in it.
3. TRANSFER OF SELLER’s CHARGE: The charge created in favour of
the seller is an unsecured money debt, and therefore is an
actionable claim. The actionable claim is transferable in nature and
therefore, so is the charge. The charge created in favour of the
seller can also be transferred to a third person and it can be
transferred through a registered instrument

14.What are the modes of termination of lease.

Termination of Lease
Section 111 of the Transfer of Property Act talks about Termination of Lease.
Here are the following ways where a lease is terminated.

1. By lapse of time.

2. By happening of a specified event.

3. By the termination of lessor’s interest.

Where the lessor’s own interest in immovable property is limited, lease comes
to an end upon the termination of the lessor interest.

4. By Merger.

Meeting of one’s interests with another’s interests. When a limited interest

becomes an absolute interest, there is a merger.

For Example, If the landlord makes a gift or sells the tenanted house to the
tenant. The tenant does not remain a tenant. He becomes the owner of the
house.

This rule is based on the maxim: “Nemo Potest esse tenens et dominus.” It
means nobody can be both a landlord and a tenant of the same property.

5. By express surrender.

Surrender is the opposite of a merger. In a merger, a larger interest is merged

with smaller interest.
For Example, Where a tenant vacates the premises before the expiry of the
term, the lease ends.

6. By implied surrender.

When a lessee accepts from the lessor a new lease of the same property which
is already leased to him, there is implied surrender of the earlier lease, and a
new lease is formed.

7. By forfeiture.

Means loss of the right of the lessee to use the property by some fault on his
part. Lease is terminated by forfeiture on following grounds-
I. Breach of express conditions by the lessee.
II. Denial of the title of the landlord.
III. Insolvency of the lessee.

8.Discuss the various types of trusts as given in the Indian trust act.
Kinds of Trust –

There are different kinds of trust prevalent and some of the important ones
are-

• Express Trust– In case the trust is created verbally or in written

form in an expressed term, wherein the process of trust is followed
properly and person is appointed as trustee of the trust, then it
would be vaunted as an express trust. If the property is movable
then the property should be registered first and then legally
transferred in the name of trustee.

• Implied Trust – This trust is also created by parties but in covert

manner, as the parties don’t expressly declare that they are
 creating a trust, but it is understood from the conduct of the
parties. The parties’ conduct will create presumption as well as
indicate the intention to create trust.

• Public and Private Trust – A public trust by its name signifies that it
is created by the government for the benefit of public at large or
for a specific set of public. It is not necessary that the trust should
be serving the entire public, as it may be created for a particular
class of public and then also it will be known as public trust. Some
of the common causes for which a public trust is created are
health, social service, medical facilities, education, training etc.
Whereas, Private trust is created for specified person, so as to
ensure that no one person will avail the benefit of the property.
Such a trust is enforced only at the action of intended beneficiary.

• Secret Trust – There are some trust where nothing is disclosed,

neither the existence of trust nor its terms and conditions and thus
is called a secret trust. There are certain trusts where the existence
of the trust is disclosed but the terms are kept as closed and so that
kind of trust acts as “half secret” trust. Although, this kind of trust
can be counted as abuse of the concept of “trust”.

16.What is an actionable claim? How can an actionable claim transferred?

What is Actionable Claim?

Actionable claim is defined in Section 3 of the Transfer of Property Act, which
was included in the Act by the Amending Act II of 1990. Actionable claim is an
intangible movable property, and its transfer is dealt with in Chapter VIII of the
Act.

According to Section 3 of the Act, actionable claim means:

1. Claim to an unsecured debt

2. Beneficial interest in a movable property
These are both claims that are recognized in the Courts of law as affording relief.
There are other types of claims also that afford relief and are actionable in the
Courts of law, such as secured debts and tortuous suits like defamation or
nuisance. But those are not categorized under the meaning of actionable claim.
The term actionable claim only covers the above mentioned two types of claims.
Transfer of Actionable Claim.
Section 130 of the transfer of property act, states that the transfer of both
actionable claims, with or without consideration are affected by written
instrument. The instrument must be signed by the transferor or his
agent. Transfer of claim takes place only after execution and signing of
instrument.

Section 131 of TP Act, states that every notice of transferable claim must be
duly signed by the transferor or his agent.

Section 132 of the act deals with liability of transferee of actionable claim.

Section 133 provides that the transferee is not bound to give any warranty as
to the solvency of the debtor.

Section 134 provides for mortgage debt, it says that if a transfer of an

actionable claim is made by way of mortgage for securing an existing or future
debt, the money should firstly be applied in payment of the cost of such
realization, secondly towards satisfaction of the amount secured by the
transfer.

Section 135 provides assignment of rights under policy of insurance. Section

136 provides for the incapacity of officers connected with the court of justice.
Section 137 lays down the saving of negotiable instruments.

17.Write a note on onerous gift and apportionment.

ONEROUS GIFT
ONEROUS GIFT is based upon the maxim 'qui sntit commodum sentire debet et
onnus' It means he who receives advantage must bear the burden also.

DEFINITION OF ONEROUS GIFT-

Where a gift is in the form of a single transfer to the same person of several
things of which one is , and the others are not , burdened by an obligation , the
donee can take nothing by the gift unless he accept it fully .Where a gift is in
the form of two or more separate and independent transfer to the same
person of several things , the donee is at liberty to accept one of them and
refuse the others , although the former may be beneficial and the letter
onerous .

ILLUSTRATION-
A has share in X , a prosperous joint stock company , and also shares in Y ,
a Joint stock company i difficulties. heavy calls are expected in respected in
respect of the shares in Y . A gives B all his shares in joint stock companies. B
refuses to accept the shares in Y. He cannot take the shares in X .

ONEROUS GIFT TO A DISQUALIFIED PERSON -

A donee not competent to contract and accepting property burdened
by any obligation is not bound by his acceptance . but if after becoming
competent to contract and being aware of the obligation , he retains the
property given , he become so bound .

Introduction to Apportionment of Property

The legal term ‘apportionment’ means distribution or allotment in proper
shares. The expression ‘apportionment’ means division of a common fund
between several claimants.

In law this term is used in various senses even various statutes define it in various
ways and as per the laws regulating these apportionment the process of
determine the apportioned amount also changes.

Section 36 & 37 of the Transfer of Property Act lay down the rules regarding the
principle of apportionment. It is classified into two types

Apportionment of Property by time

Section 36deals with the apportionment of time, which states- “In the absence
of a contract or local usage to the contrary, all rents, annuities, pensions,
dividends and other periodical payments in the nature of income shall, upon the
transfer of the interest of the person entitled to receive such payments, be
deemed, as between the transferor and transferee, to accrue due from day to
day and apportionable accordingly but to be payable on the days appointed for
the payment thereof”.
This principle does not apply on tractions which take place by operation of law
but to those transaction based on equity.

Apportionment of Property by Estate

Apportionment in respect of estate may result either from the act of the parties
or from the operation of law.

Section 37 deals with this kind of apportionment stating that “ When, in

consequence of a transfer, property is being divided and held in several shares,
and thereupon the benefit of any obligation relating to the property as a whole
passes from one to several owners of the property, the corresponding duty shall,
in the absence of a contract, to the contrary amongst the owners, be performed
in favour of each of such owners in proportion to the value of his share in the
property, provided that the duty can be severed and that the severance does
not substantially increase the burden of the obligation the duty shall be
performed for the benefit of such one of the several owners as they shall jointly
designate for that purpose

18.Certain obligations are in the nature of trust discuss.

Where obligation in nature of trust is created.-An obligation in the nature of a
trust is created in the following cases.
Trust incapable of execution or executed without exhausting trust-property.-
Where a trust is incapable of being executed, or where the trust is completely
executed without exhausting the trust-
property, the trustee, in the absence of a direction to the contrary, must hold
the trust-property, or so much thereof as is unexhausted, for the benefit of the
author of the trust or his legal representative.
Transfer for illegal purpose.-Where the owner of property transfers it to
another for an illegal purpose and such purpose is not carried into execution,
or the transferor is not as guilty as the transferee, or the effect of permitting
the transferee to retain the property might be to defeat the provisions of any
law, the transferee must hold the property for the benefit of the transferor.
Bequest for illegal purpose.-Where a testator bequeaths certain property
upon trust and the purpose of the trust appears on the face of the will to be.
Bequest of which revocation is prevented by coercion.
Marginal heading. Where property is bequeathed and the revocation of the
bequest is prevented by coercion, the legatee must hold the property for the
benefit of the testators legal representative.
Transfer pursuant to rescindable contract.-Where property is transferred in
pursuance of a contract which is liable to rescission or induced by fraud or
mistake, the transferee must, on receiving notice to that effect, hold the
property for the benefit of the transferor, subject to repayment by the latter of
the consideration actually paid.
Debtor becoming creditors representative.-Where a debtor becomes the
executor or other legal representative of his creditor, he must hold the debt
for the benefit of the persons interested therein.
Advantage gained by fiduciary.-Where a trustee, executor, partner, agent,
director of a company, legal adviser, or other person bound in a fiduciary
character to protect the interests of another person, by availing himself of his
character, gains for himself any pecuniary advantage, or where any person so
bound enters into any dealings under circumstances in which his own interests
are, or may be, adverse to those of such other person and thereby gains for
himself a pecuniary advantage, he must hold for the benefit of such other
person the advantage so gained.
Advantage gained by exercise of undue influence.-Where, by the exercise of
undue influence, any advantage is gained in derogation of the interests of
another, the person gaining such advantage without consideration, or with
notice that such influence has been exercised, must hold the advantage for the
benefit of the person whose interests have been so prejudiced.
Advantage gained by qualified owner.-Where a tenant for life, co-owner,
mortgagee or other qualified owner of any property, by availing himself of his
position as such, gains an advantage in derogation of the rights of the other
persons interested in the property, or where any such owner, as representing
all persons interested in such property, gains any advantage, he must hold, for
the benefit of all persons so interested, the advantage so gained, but subject to
repayment by such persons of their due share of the expenses properly
incurred, and to an indemnity by the same persons against liabilities properly
contracted, in gaining such advantage.
Property acquired with notice of existing contract.-Where a person acquires
property with notice that another person has entered into an existing contract
affecting that property, of which specific performance could be enforced, the
former must hold the property for the benefit of the latter to the extent
necessary to give effect to the contract.
Purchase by person contracting to buy property to be held on trust.-Where a
person contracts to buy property to be held on trust for certain beneficiaries
and buys the property accordingly, he must hold the property for their benefit
to the extent necessary to give effect to the contract.
Advantage secretly gained by one of several compounding creditors.-Where
creditors compound the debts due to them, and one of such creditors, by a
secret arrangement with the debtor, gains an undue advantage over his co-
creditors, he must hold for the benefit of such creditors the advantage so
gained.
19.Explain the rights and liabilities of a beneficiary in trust.
RIGHTS OF TRUST BENEFICIARY:
The Indian Trust Act, 1882 confers certain rights on the part of the beneficiary
to obtain the interests-
Right to rents and profits [S.55]- The trust beneficiary has the right to receive
all the rents and profits incurred by the trust property. This provision makes an
obligation on the part of the author or the trustee to make sure that the
interest is received by the beneficiary.
Right to Specific Execution [S.56]- The beneficiary has the right to receive all
the information regarding the intention of the author and to what extent their
interest lies in the trust specifically executed for them. Therefore, it makes
mandatory on the part of the trustee to provide the beneficiary with all the
information.
Right to Transfer of Possession [S.56]- The provision also makes an obligation
on the part of the trustees to transfer the trust property to the beneficiary(s)
or to such person as directed by the beneficiary(s).
In case a trust is created for the benefit of a married woman so that she does
not deny the right of her beneficial interest, during her marriage the right of
the beneficiary to have the property transferred will not be available to her.
Right to inspect and take copies of instrument of trust, accounts,
etc.[S.57]- The beneficiary is entitled to inquire about any documents related
to the trust property be it the trust deed, accounting of trust property, or
vouchers if any, and take copies of any such document. It makes an obligation
on the part of the trustee to maintain an accounting record and submit it by
the end of each year. Beneficiaries are also entitled to waive off any records.
Right to transfer beneficial interest [S.58]- The beneficiary who is competent
to the contract has the right to transfer the beneficial interest but should be in
accordance with the law prevailing at that time. However, the transfer must be
under the circumstances and to an extent to which the right can be
transferred.
In case the trust is bequeathed for the benefit of a married woman so that she
does not deny the beneficial interest she is not conferred with the right to
transfer such trust property during the period of her married life.
Right to sue for Execution of Trust [S.59]- This provision deals with the
situation where trustees are not appointed or have died, disclaimed or
discharged, or for any other reason where the execution of the trust by the
trustees becomes impracticable, the beneficiary can file for a suit for the
execution of the trust. In such cases, the court is bound to carry out the
execution of the trust under its own supervision until a new trustee is
appointed.
Right to proper trustee [S.60]- This provision confers the beneficiary the right
to demand protection and administration of the trust property by a proper
person or a proper number of any such person. The provision also lists down
persons who cannot be defined as a proper person with the ambit of this
section:
• A person having domicile of abroad;
• An alien enemy;
• A person having interest that is inconsistent with that of the
beneficiary;
• A person in insolvent circumstances and unless otherwise
provided by the personal laws of the beneficiary,
• A married woman,
• A minor child.
In cases where the administration of trust requires the receipt and custody of
money, then the number of trustees for the job should be at least two.
Right to compel to any act of duty [S.61]- The provision confers a right to the
beneficiary that he can compel the trustee to perform a particular act of his
duty or as such. He can also restrict the trustee from performing any
contemplated or probable breach of trust.
Wrongful purchase by trustee [S.62]- This provision provides the beneficiary
with the right to restrain the trustee from committing any breach of trust. If
the beneficiary has wrongfully bought the trust property with the intention to
use it for himself, the beneficiary has the right to recover it back from him and
can also compel him to hold the trust property for the beneficiary.
If the property has been sold to a third party knowing that it was trust
property, the beneficiary has the right to recover it from the third party.
However, in such a case, the beneficiary needs to repay the purchase amount
along with the interest, and any such expenses which have incurred while
preserving the property will be paid by the trustee.
The provision puts certain obligations on the part of the trustee or the
purchaser. He must:
1. Account for the net profits of the property,
2. Pay the occupation rent if he was in actual possession of the
property, and
3. Allow the beneficiary to deduct a part of the purchase money if
the property has been deteriorated by certain acts or omissions of
the trustee or purchaser.
LIABILITIES OF TRUST BENEFICIARY:
• Duty to compensate the Trustee- In case the beneficiary causes
any damage to the trustee or the trust property, the beneficiary is
legally bound to compensate or reimburse for the damages
caused by him.
• Liability in breach of trust- If in case the beneficiary breaches the
trust agreement in any way, he will be held liable for the damage
or losses incurred by the breach of trust.
• Liability in harming others’ Interests- The beneficiary will be held
liable if in any way he/his behavior causes any harm to another
party’s interest.
• Liability not to take advantage- If the beneficiary needs to take
any kind of advantage from the trust property, it is compulsory on
the part of the beneficiary to take consent from all the other
beneficiaries related to the trust. It will be considered as a breach
of trust if not done so.
• Liability to receive interest(s)- The beneficiary is liable to receive
only his part of the interest from the trust and not more than that.
• Liability to be aware of the breach of trust- It is the responsibility
of the beneficiary to proceed with a suit against any party in case
a breach of trust is found. It is his liability to become aware of all
kinds of breach of trust either by the author or by the trustee.
• Liability to deceive the trustee- The court may proceed with a suit
against the beneficiary if in case it is found that the beneficiary
has deceived the trustee or persuaded him to perform a breach of
trust.
• Liability to take reasonable steps- It is the responsibility of the
beneficiary to comply with the reasonable steps as mentioned in
the instrument of trust within the limitations and boundaries set
 keeping in mind the rights and liabilities of other beneficiaries. If
not done so, the person will be held liable.
CONCLUSION:
Although a trust is created for the benefit of the beneficiary and possesses
certain rights on the trust property, there are also certain liabilities and
responsibilities imposed on him. The Indian Trust Act, 1882 ensures that the
beneficiary not only enjoys the rights and benefits on the trust property but
also complies with the provisions of the trust deed in order to avoid any
damages which may be caused to other beneficiaries, hence balancing the
scale.

20.Who is an Ostensible owner? When a transfer from an ostensible owner is

protected against the real owner?
Introduction:
The ostensible proprietor is not the genuine owner of a property. He just
addresses himself out as a genuine owner to the outsiders. Such an ostensible
owner has every one of the privileges of possession in a property without
being its genuine owner.
According to the Transfer of Property Act,1882; when a person acts on the
express or implied consent of a person who is interested in immovable
property, the person who acts on such consent is the ostensible owner of the
property. He has all the indicia of proprietorship like the option to title,
ownership, archives and so forth he can move the property for thought to the
transferee.

Requirements of transfer by an ostensible owner

The following are the main requirements for a lawful transfer by an ostensible
owner:

1. The transferor must be an ostensible owner

When it has already been proven that the transfer was performed with the real
owner’s permission, the real owner will be estopped from making a claim on
the property. It will be applicable even if the transferee had performed no
investigations to see if the transferor had the authority to make the transfer,
which is otherwise essential for this section to apply. Hence, the transfer itself
does not need to be done with the approval of the real owner for this provision
to apply. It is sufficient if the transferor is the ostensible owner with the
approval of the real owner at the moment of transfer.
 2. The real owner’s consent is essential for ostensible ownership
Unless the ostensible ownership of the transferor has been formed, allowed,
or acquiesced in by him, the real owner will not be barred under this provision.
This can be done by:

• express words of consent, or

• acts or behaviour that indicate consent, so that the real owner
establishes or enables the impression of ownership or acquiesces in
it.

1. Express Consent:
The consent is said to be express when:

1. the owner clearly says using words, spoken or written that:

(a) he has no interest in the property or

(b) that another person has an interest in the property; or

2. The owner performs any act that demonstrates that he has no

interest in the property, such as attesting a deed stating that he has
no interest in the property, or that a third party has an interest in the
property, such as getting the property mutated in the name of
another and disclaiming his interest. Unless there is a responsibility to
speak, or the inactivity or silence is comparable to speaking, mere
inaction or silence is not material.
3. Implied Consent:
Implied consent refers to consent that can be inferred from a person’s actions
or behaviour. If the real owner is aware that someone else is handling his
property and agrees to it, his silence or inaction might imply consent.

However, prior to such a consent being inferred, it must be established that

the person delivering the consent was cognizant of his right, interest or title to
the property and that despite that knowledge, he provided the consent. His act
or conduct at a time when he was unaware of his own right does not preclude
him from pursuing his own claim against the transferee.

3. The transfer must be for consideration

A transferee can only profit from Section 41 of the Act if he can show that he
received the property in exchange for something. There should be a quid pro
quo in the transaction.

4. The transferee must take reasonable precautions

The clause states that a transfer made by an ostensible owner is not voidable
because the transferor was not allowed to perform it, as long as the transferee
was:

• Taking reasonable precautions to ensure that the transferor has the

necessary authority to effectuate the transfer, and
• Acting with bona fide intention.
If a transferee does not have constructive knowledge of the real owner’s title
and no means to investigate the real title-holder of the property, he may be
protected under this clause.

1. Degree of Care: In order to determine whether the transferee has the

authority to affect the transfer, the following requirements to ensure
a certain degree of care must be met:
2. Ordinary Prudence and Reasonability: Whether the transferee took
reasonable care to ensure that he had the authority to make the
transfer must be decided in light of the facts of each instance. The
test for the same is to see whether the transferee acted
(a) like a reasonable man, and

(b) with ordinary prudence.

2. Standard of diligence: The conventional standard of diligence for

determining whether the transferee has the power to affect the
transfer is requesting and examining the title under which he claims
to be the owner. If in the document itself, that is produced as the title
deed for the transferee’s examination, there is any indication to put
the transferee on enquiry with respect to the possibility of some
other document or improper ownership of title, then the matter
needs to be investigated further.

2. The transferor must demonstrate that he has conducted the usual title
search: The proviso states that the transferee must have taken reasonable care
to ascertain that the transferor possessed the power to make the transfer, and
this is an essential requirement for the provision to apply. Therefore, the
transferee must demonstrate that he conducted the standard title
investigation. He would not have been granted the benefit of the clause if he
had not done so.

3. If the title is obvious, no inquiry is necessary: In case the title is obvious, no

inquiry may be carried out. When a person appears to be in possession of the
property, is documented as the owner, retains the property’s title deeds, and
talks with a third party about it, there is nothing to establish that the third
party acted with mala fide intentions in dealing with him about the property.

4. Impact of a lack of reasonable care: If this aspect of lack of due care used to
determine the true fact is missing the transferee cannot enjoy the benefits of
the Section.

5.The transferee must act in Good Faith

It is essential for the transferee to act with a bona fide intent. It is possible
that there may be investigation without good faith as well as good faith
without investigation. The real owner will not be affected by the transactions
being entered into by the ostensible owner in either of these scenarios. This
provision requires honesty as “good faith.”

21.What is lispendens? Mention the conditions necessary before this plea

can be raised.
Introduction:
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn
from the concept based on the maxim “Pendente lite nihil innovature” which
means that nothing new must be introduced while a litigation or suit is
pending.

This Doctrine states that the Transfer of property shall be restricted when
there is a litigation pending on the title or any rights that arise directly thereof
involving an immovable property.

The suit commences the moment a complaint is presented or the day of

commencement of proceedings in the appropriate Court and shall be
terminated by Order of the Court.
The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs.
Sabine, 1857 Where the Court observed the following:

“This is a doctrine common to law and equity courts, which I apprehend, on the
grounds that, if alienation pendente lite was allowed to prevail, it would simply
not be possible for any action or suit to be resolved successfully. In any case,
the Plaintiff will be responsible for the Defendant who alienated the property
before the judgment or the decree and must be obliged, according to the same
course of action, to initiate these proceedings de novo.”

Conditions for Applicability of the Doctrine as provided in Section 52

• A suit or proceeding is pending.

• The above suit is brought to a competent court within the jurisdiction.
• The right to the title of an immovable property is directly in question.
• There cannot be any collusion.
• The suit should directly affect the rights of the other party.
• The property in question is being transferred by either party.

22.All kinds of properties are transferrable comment.

Subsequent forms of transfer under the Act are:

• Sale– It’s an out-and-out transfer of property And also the

consideration is money.
• Mortgage– It’s a transfer of a limited interest during a property.
• Lease– A lease may be a transfer of a right to enjoy the immovable
property for a particular time.
• Exchange– It’s the same as sale, but differ in consideration. Here the
consideration is another thing not money.
• Gift– Here, there’s no consideration.

This section specifies different types of property which can not be transferred
(Exception to Section 6)-
 1.Spes Successionis [Section 6(a)]- “The possibility that an heir
apparent is clearly unsuccessful in a certain situation, that the
possibility in a relationship, receiving an ancestral property by the
death of an ancestor or in another natural event, then the transfer can
not be performed.”
Any opportunity for the heir apparent to succeed under certain conditions is not
included in the category of assets that can be transferred.

For e.g, ‘X’ a Hindu, dies and leaves his wife with ‘C’. ‘C’ has only a spes
succession, his succession depends upon two factors, that the surviving of the
X’s wife and the property which was left by ‘X’.

2.Right of Re-entry [Section 6(b)]- “A simple right of re-entry for

breach of a condition following can not be transferred to anyone
except the owner of the property.”

3.Easement [Section 6(c)]- “An easement can not be transferred

except from the dominant heritage.”
An easement right to use, or restrict the utilization of land of another in their
way, for example- the right of way, right of water or light, etc. (Section
3 Easement Act).

4.Restricted Interest [Section 6(d)]- “A right of the owner is strictly

prohibited in its enjoyment to him or her personally can not be
transferred to any other.”
E.g- A man can not transfer the right of enjoyment of the home to any different
person. If the home is lent to the man for his personal use.

5.Maintenance [Section 6(d)]– “A right of a person to his future

maintenance, in whatever manner it would arise, that should be
secured or determined, and can not be transferred to anyone.”

6.Mere right to sue [Section 6(e)]- “A mere right to sue can not be
transferred to anyone.”
A right to sue is a personal possibility for the injured..

7.Public office [Section 6 (f)]- “A public office cannot be transferred to

anyone because, it’s a public property and the person who has the
qualities, they should only enjoy the rights of the office not all. And
always changes and pays for work not for the office.”
 8.Pensions [Section 6(g)]- “Stipends are allowed only for the military,
air force, naval and civil pensioners of the govt. and political pensions
that can not be transferred to anyone, pension means a periodical
allowance or stipend which they will get after their job is over.

9.Nature of Interests [Section 6(h)]- “There is no transfer on this point

because it against the nature of the interest affected thereby, or as far
as unlawful object or consideration within the meaning of Section 23 of
the Indian Contract Act, 1872, or to someone who is legally disqualified
to be a transferee.”
This clause restricts the transfer with anyone which is in nature and isn’t
transferable, e.g- res communes (things are also utilized by all men, which
nobody specifically is the owner), res nullius (things belonging to nobody).

10.Untransferable interests [Section 6(i)]- “In this section it is not

mentioned that, to authorize a tenant it is compulsory to have an non-
transferable right of occupancy, like the farmer has a condition to pay
the revenue, in which there are some conditions are also on the lessee,
under the supervision of a Court’s department”.

23.What do you mean by vested interest and contingent interest.

Meaning of Vested Interest: – The interest in a property which is created in
favor of the person without specifying, the time or a specific connection is
known as Vested Interest in the property. In this, the interest in the property is
vested in favor of the transferee, even though the right to enjoy the property is
delayed. The person having the vested interest does not get the possession of
that property but has the expectancy to receive it upon happening of a
specified certain event.
Section 19 of Transfer of Property Act defines 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.”
For Example: – ‘X’ promises to transfer his property to ‘Y’ on him attaining the
age of 22. ‘Y’ will have vested interest in X’s property till the time he does not
get the possession of it. If ‘Y’ dies at the age of 21, then the interest vested in
‘Y’ will pass on to the legal heirs of ‘Y’ and they will be entitled to the property
in the prescribed time period.
Vested Interest can take place in two stages: –

1. First, when the transferee is in immediate possession of the property.

2. Second, when the transferee has acquired an interest in the property
but not in the current possession of the property, where the right of
enjoyment is delayed to a future date.
Section 20 of Transfer of Property Act deals with the acquisition of a vested
interest in property transferred to an unborn child. When the transfer of
property is done in the favor of the unborn child, so, the interest in such
property vests in favour of an unborn child, at the child’s birth. Such a child
may not be able to enjoy the property but interest in the property is
transferred immediately.
What are the characteristics of vested interest?

There are three main characteristics of a Vested Interest as follows: –

1. The vested interest does not depend upon an uncertain event, which
may or may not happen. It creates an immediate or present right,
though the right to the enjoyment of property can be delayed.
2. Vested interest does not defeat by death, the property is transferred
to the transferee. And on the death of the transferee the interest is
passed to the heir of the transferee.
3. Vested interest is both transferable right and heritable right.

What is Contingent Interest?

Meaning of Contingent Interest: – When interest is created in favour of a
person to whom such property is transferred, and such interest depends upon
the happening of a specified uncertain event, it is called Continent Interest in
the property. According to section 21 of Transfer of Property Act, the person
having the contingent interest does not get the possession of that property but
has the expectancy to receive it upon happening of that event but will not
receive the property if the event does not happen as the condition is not
fulfilled. Contingent interest is entirely dependent on the condition imposed
on the transfer.

Contingent Interest occurs on following conditons: –

1. When interest is created in favour of a person to whom such property
is transferred, and such interest depends upon the happening of a
specified uncertain event.
2. Therefore, the transfer of interest depends upon an uncertain event
which may or may not happen.
 3. The contingent interest in the property can become Vested interest in
the happening of that event.
4. The right of enjoyment of ownership or possession in the property
depends upon the happening of that uncertain event that may or may
not happen.
What are the characteristics of Contingent Interest?
There are three main characteristics of contingent interest: –
1. This interest is entirely dependent upon the condition. It only
happens when the condition is fulfilled.
2. Death of the transferee before getting the possession of the property
will result in the failure of continent interest and the property will
remain with the transferor.
3. Contingent interest is a Transferable right, but whether it is heritable
or not, it depends upon the nature of such any transfer and the
condition.

24.Explain the effects of condition restraining alienation of property.

Introduction:
Alienation means transferring of property. This transfer of property can be
through gifts, sales and mortgages. Under Hindu Law, no person of the Joint
Hindu family, not even the Karta, has the full power to alienate the joint family
property or his own interest in the joint family property without the consent of
all coparceners. In the case of separate property, a Hindu can alienate that
property whether it comes under Dayabhaga or Mitakshara school. This power
is absolute.

Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for
alienation of property-

• Section 10 lays down that where the transferee is absolutely restrained

from transferring his interest in his property to another person because
of a condition which came along when the property was transferred to
the transferee, then this condition will be made void. The transfer,
from the transferor to the transferee would remain valid.
• For example, A transfers some property to B as a gift but with the
condition that while A is alive, B must not transfer the property to any
other person. This condition will be held void as it absolutely restrains
B from transferring his interest in the property to another person.
This is commonly known as the ‘rule against alienability’. The Transfer of
Property Act is based on the principle that there can be a free transfer of
property and has been specifically made with regard to free transfer. If
conditions restraining transfer are imposed, then the free transfer would be
restricted and there would be no use for the Transfer of Property Act.

However, only conditions mandating ‘absolute restriction’ are void. There are
conditions which call for partial restraint to be observed with regard to the
transfer of property. If we are to determine whether a condition is absolute or
partial, then one must look at the substance of the condition, and not merely
the words. Therefore, restraints can be classified into two categories.

Types of restraints

Absolute Restraints

• An absolute restraint is such a restraint which completely takes away

the right of the transferee to alienate or dispose of the property. The
transferee can now no longer transfer his interest in the property to
another person and he has no freedom to do what he wants with the
property in his capacity as the owner of the property.
• Section 10 stipulates that any condition imposed on the transferee
which would amount to an absolute restraint on the right of the
transferee to dispose of his interest in the property shall be void. The
property must be transferred to the transferee subject to the
condition.
• In Rosher v. Rosher (1884) 26 Ch D 801, A made a gift of a house to B,
and gave a condition that if B decides to sell the house during the
lifetime of A’s wife, she should have the option of purchasing it for Rs
10000, while the market value of the house was set at Rs 10,00,000.
This condition was held to be an absolute restraint and was declared
void.
• In Kannamal v. Rajeshwari, AIR 2004 NOC 8 (Mad), a life estate was to
be created in favour of ‘M’, but the transferor gave an absolute
restriction along with the property transfer to M, whilst divesting
himself of all his interests in the property. This restraint was held to be
void as there was an absolute transfer.
 • In Mohd Raza v. Abbas BandiBibi,(1932) 59 IA 236, a condition
imposing restriction for a particular time or transfer to a specific person
has been held to be void.

Partial Restraints

• A partial restraint is a condition which partially takes away the right of

the transferee to dispose of his interest in the property. Here, the right
is not taken away substantially. Section 10 does not explicitly talk about
partial restraints. A condition imposing partial restriction is valid.
• In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there was a
dispute regarding succession between nephew and widow. A
compromise was formed that the widow had possession of the
property while the title for the same was given to the nephew with the
condition that he was restricted from alienating the property during
the widow’s lifetime. It was held that the compromise and the
condition were valid and prudent in the present case.

25.What are the essentials of valid lease?

Essential features of a valid lease

There are various essential elements of a contract of lease mentioned under

the Transfer of Property Act, 1882.

1. Immovable Property – A contract of Lease can be made only for immovable

property or assets. It cannot be done for a moveable property. The lease made
will be for the working and use of the immovable property and the Lessor and
Lessee exchange the rights of the property through the contract of lease.

2. Parties – For a Lease agreement, the existence of two or more parties is

necessary for the proper transfer of rights of the immovable property. It is a bi-
partied system and it cannot be complete in the absence of the parties,
therefore, making the contract of lease void.

3. Subject matter of lease – The subject matter or the purpose of the lease
agreement is compulsory and necessary to be mentioned in the contract. The
purpose of transfer of the right of the immovable property, the services and
profit decided, the details of the immovable property, and other important
data is required to be written in the contract of lease.

4. Duration – The duration of a lease agreement is an essential element which

specifies the commencement of the contract and how long the services and
rights will be transferred through a valid legal contract. Section 106 of the
Transfer of Property Act, 1882 is referred if it is not mentioned in the contract
of lease.

5. Consideration – Lawful consideration is necessary for the fulfillment of a

contract of lease. The transfer of the rights of the immovable property is made
by giving consideration in the form of money as premium or rent, shared profit
or as share of crops and services.

6. Competency – The parties entering into a contract of lease should be

competent according to the Indian Contract Act, 1872. Both the Lessor and the
Lessee must be of sound mind, of majority age, and not subject to any law
which restricts them to be a part of a valid contract. If the transfer of the right
of property is done to a minor, then a legal guardian is necessary to work on
behalf of the minor till he or she attains a majority age.

7. Valid contract essentials – Lease is a contractual agreement made between

two parties and therefore, it must follow the essential elements of a valid
contract given under Indian Contract Act, 1872. Essential elements like Offer,
Acceptance, Consideration, Lawful Object, Intention of the Parties,
Competency, Capacity to Contract, Subject Matter, Writing and Registration
etc, are important to be followed in the Contract of Lease.

8. Express and implied transfer – The transfer of right of the immovable

property between the Lessor and the Lessee should be made expressly or
impliedly, in a written contract. And the notice of the termination of the lease
should be given according to the clause mentioned in the contract of lease and
should be duly signed and delivered among the parties.

9. Possession of Property – In the contractual agreement of lease, transfer of

the right of property is made and the parties exchange the right of possession
of the property for a certain period of time and do not exchange the ownership
of the immovable property.
26.Discuss the legal requirements of valid transfer.
Essentials of a valid transfer of property :

To constitute a valid transfer it has to fulfill the following conditions;

1. Transfer must be between two living persons :

One of the main features of the TP Act is that it governs transfers only between
living persons or the transfers have to take place intervivos, I.e both the
transferor and the transferee must be living at the date of the transfer.

2. The property must be transferable :

There are certain exceptions to the general rule, that the property of any kind
may be transferred, these exceptions are mentioned in section 6 of the TP Act,
according to this section the following are the exceptional types of property
whose transfer is forbidden by the law.,
1. Spes succcessionis : i.e a chance of succession
2. Right to re-entry
3. Easement
4. Restricted interest
5. Maintenance
6. Mere right to sue
7. Public office
8. Pensions, etc
3. The transfer should not oppose to nature of interest :
There are certain things which are known as “res communes”, these things are
in their natural form and they do not belong to anyone, like, air, water, sea,
light, etc., it is not possible to hold and possess these things separately so if
anyone tries to transfer such a thing it would be opposed to its nature.
4. The consideration or the object must be lawful :
To be a valid transfer the consideration and the object must be lawful. Section
23 of the Indian Contract Act, provides that when the consideration or the
object is unlawful .
5. Persons competent to transfer :
Section 7 of the TP Act, provides that if the person is competent to contract
then that person is competent to transfer the property either wholly or in part,
and either absolutely or conditionally, in the manner which has been
permitted by law.
And the Competency to contract has been defined in section 11 of the Indian
contract act, according to this section “every person is competent to contract
who has attained the age of majority and is of sound mind and that person is
not disqualified from contracting by any law”
6. The transfer must be made in the manner and the form required by the Act
Section 9 of the TP Act provides for oral transfer. It states that the transfer of
property can be carried out without a written instrument where writing is not
expressly necessary under the law. And the writing is necessary for the
following transactions; they are
• Sale of immovable property where the value is of Rs.100 or
upwards
• Transfer of actionable claim
• Exchange of value of Rs. 100 or upwards.
• Simple mortgage irrespective of document secured. Etc
Conclusion :
The Transfer of Property Act lays down certain conditions which are necessary
for a valid transfer of property, so all the essentials must be fulfilled to
constitute a valid transfer. If those essential requirements are not fulfilled then
the transfer will not be considered a valid one or it can be declared void.

27.Explain the circumstances under which creditors can set aside a transfer
as fraudulent.
The essentials of Fraudulent Transfer under Transfer of Property Act are as
follows: –
1. Transfer of the property done by the transferor
2. It should be immovable property
3. The transfer is done without consideration
4. The transfer is done with the intention to defraud a subsequent
transferee and with intention to defeat or delay his creditors
5. Such transfer is voidable at the option of the subsequent transferee.
Privity of contract is followed which means that only the parties to the
contract can sue. Hence, no third party can sue on the creditor’s behalf who is
not a party to the suit. The suit is instituted by the creditor on the ground that
the transfer is made to defeat or delay the creditors of the transferor.
The suit is instituted in the representative category or for the benefit of all
creditors. This is to avoid a multiplicity of suits against the same opposite
party/parties on the same subject. Dismissing a creditor’s lawsuit would be
binding on all creditors.

Burden of proof under fraudulent transfer

There is no presumption in law that the transfer was affected with the intent
to defeat or delay creditors. The existence of fraud will not be presumed by the
court, it has to be proved. Therefore, when the transfer of property is
challenged on grounds of fraud, the primary onus will be on the petitioner to
show how he was connected to the property and how the fraud has taken
place.
Therefore, the primary onus here is on the creditors to prove that the transfer
was affected to defeat or delay the debtors. But once this is proven then the
burden shifts on the transferee to prove that he has purchased the property
with good faith and consideration.
Burden of proof with respect to showcasing whether the transfer was made
possessed with the intention aimed to delay or defeat the creditors [ or the
people to whom the transferor owes some kind of liability which is financial in
nature lies on such people to whom the transferor owes some kind of liability
which is financial in nature i.e., the creditors. This is so since they are the ones
who can actually prove whatever delay, defraud or defeat they suffered at the
hands of the ill intentioned transferor.

Case laws
1. Kanchanbai vs. Moti Chand, AIR 1967 MP 145
In this case, the court observed that the phrase creditors would also include a
single creditor. The clause would be attracted even if a single creditor was
defrauded or intended to defraud only a single creditor. Here the transfer was
made to fail and delay the creditor’s claim. Therefore, section 53 would be
applicable.
2. Dr Vimla vs. Delhi Administration AIR 1963 SC 1572: – 1963 Supp (1)
CR 585
In this case, the Supreme Court observed that the term defraud involves 2
elements i.e., Deceit and Injury to the defrauded person. The injury does not
only mean economic loss. It also includes deprivation of property or money
and includes harm caused to body, mind, and reputation to a person.

28.Write a note on mortgagee’s power of sale without interpretation of

court.
a mortgatee, or any person acting on his behalf, shall, subject to the provisions
of this section, have power to sell or ,concur in selling the mortgaged property,
or any part thereof, in default of payment of the mortgage -money, without
the intervention of the Court, in the following cases and in no others, namely
 (a) where the mortgage is an English mortgage, and neither the
mortgagor nor the mortgagee is a Hindu, Muhammadan or
Buddhist or a member of any other race, sect, tribe or class from
time to time specified in this behalf by the State Government in
the Official Gazette;

(b) where a power of sale without the intervention of the Court is

expressly conferred on the mortgagee by the mortgage-deed, and
the mortgagee is the Government

(c) where a power of sale without the intervention of the Court is

expressly conferred on the mortgagee by the mortgage-deed,
and] the mortgaged property or any part thereof was, on the date
of the execution of the mortgage -deed situate within the towns
of Calcutta, Madras, Bombay, [or in any other town or area which
the State Government may, by notification in the Official Gazette,
specify' in this behalf.

2.No such power shall be exercised unless and until--

[(a)] notice in writing requiring payment of the principal money has been
served on the mortgagor, or, one of several mortgagors, and default has been
made in payment of the principal money, or of part thereof, for three months
after such service; or

(b)] some interest under the mortgage amounting at least to five hundred
rupees is in arrear and unpaid for three months after becoming due.

3.When a sale has been made in professed exercise of such a power, the title
of the purchaser shall not be impeachable on the ground that no case had
arisen to authorize the sale, or that due notice was not given, or that the
power was otherwise improperly or irregularly 'exercised; but any person
domified by an unauthorised, or improper, or irregular' exercise of the power
shall have his remedy in damages against the person exercising the power.

4.The money which is received by the mortgagee, arising from the sale, after
discharge of prior incumbrances, if any, to which the sale is not made subject,
or after payment into Court under section 57 of a sum to meet any prior
incumbrance, shall, in the absence of a contract to the contrary, be held by him
in trust to be applied by him, first, in payment of all costs, charges and
expenses properly incurred by him as incident to the sale or any attempted
sale; and, secondly, discharge of the mortgage-money and costs and other
money, if any, due under the mortgage; and the residue of the money so
received shall be paid to the person entitled to the mortgaged property, or
authorised to give receipts for the proceeds of the sale thereof.

29.Write a note on free closure.

Introduction:

The right of foreclosure is a right available to a mortgagee to recover his

outstanding money. This right is available under Section 67 of the Transfer of
Property Act, 1882. After the principal amount has become due, and before
payment of mortgage money by mortgagor or before decree of redemption
has been passed by Court, mortgagee has a right to obtain a decree of
foreclosure from the Court. A suit to obtain a decree that a mortgagor will be
absolutely debarred from exercising his right to redeem the mortgaged
property is called a suit for foreclosure.

Conditions:

The right to foreclosure can be exercised by mortgagee only when:

• The debt amount has become due for payment.

• There are no contrary conditions in the mortgage deed as to the time
fixed for repayment etc.
• Mortgage money has become due but mortgagor has not got a decree
of redemption of the mortgaged property.
• Mortgage money has become due but mortgagor has not paid or
deposited the amount. After the mortgage money has become due, the
mortgagor can pay off his debt in three ways:
• By tendering or making payment of the mortgage money directly to
mortgagee
• By filing a suit for redemption.
• By depositing the amount in court.
• Mortgagee should not be mortgagee of public works like canal, railway
etc.
 • A trustee or legal representative of mortgagee cannot file a suit for
foreclosure but for sale only.

30.Discuss the essentials of lease and state how lease are made.
Introduction:
A lease is the transfer of a right to enjoy certain property. It is either for a
certain period or perpetuity. It is an agreement by which the owner of the
property or the lessor transfers his right of possession to the lessee. It is not an
absolute transfer of all rights in the property. It is merely a partial transfer.
what is transferred is merely the right of possession and the use of the
property. It separates ownership from property. Ordinarily, a lease is with
respect to land. However, every right that can be possessed can be made the
subject of a lease. Thus there can be a list of Copyright, a patent, right of way,
right to receive interest on government promissory notes.
There are various essential elements for a valid lease. They are:

1. Immovable Property – A contract of Lease can be made only for

immovable properties and cannot be done for a moveable
property. The Lessor and the Lessee exchange the rights of the
property through the contract of lease for the working and use of
the immovable property and
2. Parties – For a Lease agreement, there must be two or more
parties for the proper transfer of rights of the immovable
property. It cannot be completed in the absence of the parties as
it a bi-partied agreement.
3. Subject matter of lease – The subject matter of the lease
agreement is necessary to be mentioned in the contract. The
purpose of transfer of the right of the immovable property, the
services and profit decided, the details of the immovable
property, and other important data are required to be written in
the contract of lease.
4. Duration– It is an essential to mention the duration of a lease
agreement which specifies the commencement of the contract
and how long the services and rights will be transferred through a
valid legal contract. It is explained under section 106 of the
Transfer of Property Act.
 5. Consideration – Lawful consideration is an essential element for
the fulfillment of a contract of lease. Considerations in the form of
money as premium or rent, shared profit or as share of crops and
services are essential the transfer of the rights of the immovable
property.
6. Competency –According to the Indian Contract Act, 1872, the
parties entering into a contract of lease should be competent. All
the parties must be of sound mind, a majority by age, and not
subject to any law which restricts them to be a part of a valid
contract. If the transfer of the right of property is done to a minor,
then a legal guardian is necessary to work on behalf of the minor
till he or she attains a majority age.
7. Valid contract essentials– Essential elements like Offer,
Acceptance, Consideration, Lawful Object, Intention of the Parties,
Competency, Capacity to Contract, Subject Matter, Writing and
Registration etc., mentioned in the essential elements of a valid
contract given under Indian Contract Act, 1872 are important to
be followed in the contract of a lease as it is a contractual
agreement made between two parties.
8. Express and implied transfer – The transfer of rights between the
Lessor and the Lessee should be made expressly or impliedly, in a
written contract and the notice of the termination of the lease
should be given according to the clause mentioned in the contract
of lease and should be duly signed and delivered among the
parties.
9. Possession of Property – In the contractual agreement of lease,
transfer of the right of property is made and the parties exchange
the right of possession of the property for a certain period of time
and do not exchange the ownership of the immovable property.

How lease can be made?

According to section 107 of TPA, 1882, a lease can be made, if there is a lease of
immovable property for a year, or for a term which may be exceeding one year
or may be reserving a rent for a year, then it can be made only by the registered
instrument.

31.Write a note on Improvements made by bonafide holder.

Section 51. Improvements made by bona fide holders under defective titles
When the transferee of immovable property makes any improvement on the
property, believing in good faith that he is absolutely entitled thereto, and he
is subsequently evicted there from by any person having a better title, the
transferee has a right to require the person causing the eviction either to have
the value of the improvement estimated and paid or secured to the transferee,
or to sell interest in the property to the transferee at the then market value
thereof, irrespective of the value of such improvement.

The amount to be paid or secured in respect of such improvement shall be the

estimated value thereof at the time of the eviction.

When, under the circumstances aforesaid, the transferee has planted or sown
on the property crops which are growing when he is evicted there from, he is
entitled to such crops and to free ingress and egress to gather and carry them.

32.Discuss the rights and liabilities of beneficiary.

Earlier Answer.
33.Write a note on extinction of trust and public trust.
Indian Trust Act 1882, makes provision for the extinction of trusts under
section 77.78 and 79. Extinction of trust means termination of trust.

Section 77 lays down 4 situations when a trust is extinguished: –

• When its purpose is completely fulfilled.

• When it becomes unlawful.
• When the fulfilment of its purpose becomes impossible by
destruction of the trust property or otherwise.
• When the trust being revokable, is expressly revoked.

To be legal, a trust must have a lawful object or purpose. A law purpose can be
lawful at initial stage but may become unlawful afterwards due to some new
legislation coming into force.

Such purpose therefore can’t be accomplished being unlawful. So, the trust is
extinguished. This is as per section 77(b).

Similarly, under Section 77 when the fulfilment of purpose becomes impossible

by destruction of the trust property or otherwise, a trust property or
otherwise, a trust is extinguished.
REVOCATION: –

Section 78 enumerates the circumstances when a trust may be revoked. A

trust created by a will may be revoked at any time at the pleasure of the
testator, for a will inherently ambulatory (alterable). Revoking means to make
generally void a document by taking it back or by recalling.

A trust which is created otherwise than by will may be revoked: –

• By consent of all the beneficiaries where all of them are competent

to contract.
• By expressly providing in the instrument of trust for a power of
revocation: by exercising such a power a trust may be revoked.
• When its purpose is the payment of authors debt it can be revoked
at any time prior to communication of the arrangement to the
creditor.

What is Public Trust?

Public trust is a trust where the beneficiaries are the public at large, and it
undertakes the charitable activity in the way of relief of the poor, education,
medical relief, and any other services of general public utility.
The purpose of the public charitable trust is to benefit the general public and
none of the private individuals or associations should be personally benefited.
And also it should cater to all public irrespective of any caste, creed, or religion.
Benefits of Public Trust

• Public trust is more permanent than a private trust.

• Income to a certain extent is deemed to have been applied for charitable
or religious purposes in India, either wholly or partly, charitable or the
religious trust would be exempt from tax payment, provided that the
Trust is registered under section 12AA of the Income Tax Act, 1961.
• Public charitable trust has legal status because it can be registered in a
state while in most cases private trust is not required to be registered,
other than when there is a transfer of immovable property, a certain
amount of equity assets, etc.
• Public charitable trusts have the option of amalgamation/merging with
another public charitable trust with similar subjects that require prior
approval from the respective state laws as applicable.
 •A trust can not be easily dissolved, although a new provision has been
implemented allowing dissolution, it needs fair reasons to be
submitted to the charity commissioner's office, and it has large income
tax obligations such as a tax on deferred income under section 115TD
of the Income Tax Act, 1961.

34.Write a note on direction for an accumulation.

Section 17. TPA, Direction for accumulation.

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 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 transferor; 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.

35.Define gift? Explain the principles relating to revocation?

Introduction:
Gift is giving something to someone out of love and affection without asking or
expecting for anything in return. Gifts are something which is a part of our lives
since times immemorial. Be it someone’s birthday or wedding or great
achievement, gifts have always been a way of showcasing one’s love and
affection.

Legal Definition of Gift:

Gift is defined under the Transfer of Property Act, 1882 which deals with the
transfer of movable and immovable property. Section 122 of the Act states
that:

“Gift is the transfer of certain existing movable or immovable property made

voluntarily and without consideration, by one person, called the donor, to
another, called the donee, and accepted by or on behalf of the donee.”
Essentials of a valid Gift:

For a gift to be valid, these are the essentials:

1. Existing property – The property to be gifted, either movable or immovable

must be an existing property and if it consists of both existing and future
property, it is void as to the extent of the future property.

2. Voluntarily – A gift to be valid should be made by the donor voluntarily

without any coercion, undue influence, fraud or misrepresentation.

3. Without consideration – A gift can be valid only and only if it is made

without any expectations for something in return, that is, it should be made
without consideration.

4. Acceptance by the donee – A gift to be valid, need to be accepted by the

donee, that too before the death of the donor otherwise, it shall be void.

5. Competent donor – The donor must be competent to make a transfer of

property by gift. The donee may be a minor in case of which someone shall
accept on his/her behalf and after attaining majority he/she can accept or
reject it.

6. Mode of Transfer – A gift of immovable property shall be valid only if it is

made through a registered instrument attested by 2 witnesses. In the case of
movable property, the gift shall be made through a registered instrument or by
mere delivery. In Atmaram Sakharam Kalkye v/s Vaman Janardhan Kashelikar1,
the Bombay High court held unanimously that when the gift was revoked
before registration of an instrument, the gift was actually never made.

Revocation of gift under Transfer of Property Act, 1882:

Section 126 of Transfer of Property Act, 1882 specifies as to when a gift can be
suspended or revoked:

1. If the donor and donee agree that on the happening of a specified

event which does not depend on the donor’s will, the gift shall be
revoked.
2. Any of those cases in which if it were a contract, it might be
rescinded.
1. Happening of a pre-decided event:

The Act basically states that the donor and donee must agree while making the
gift that on the happening of a specified event, the gift shall stand revoked.
However, that event must not depend on donor’s will, otherwise, the gift shall
be void for the part it so depends.

The condition must be agreed upon mutually and mentioned specifically. The
Madhya Pradesh High Court, in Nanhibai v/s Govindrao held that since the
condition of defendant’s failure to discharge the work of Puja-Archana would
lead to revocation of gift was not mutually decided, it cannot lead to
revocation. In a case before the Delhi High Court, the Bench held that the
failure of the deceased plaintiff to mention the condition that the failure of the
defendants to allow him to stay in the front drawing-room of the house would
lead to revocation, would actually not allow the revocation of the gift even if
the deceased plaintiff was not so allowed because the condition was never
mentioned in the gift deed

However, in Bharathi v/s Palaniammal & Ors., the Madras High Court held
that where the defendant executed a settlement deed out of love and
affection, the clause that the plaintiff has to take care of the defendant and
perform his last rites is a mere wish and not a condition which would lead to
revocation of the deed.
2. Recission if it were a contract:

The second condition states that if the gift were a contract which can be
rescinded except for the failure of or lack of consideration, the gift shall be
revoked. In simple terms, if the gift is made by coercion, undue influence,
fraud or misrepresentation, it can be revoked. And Section 19 and Section 19A
of the Indian Contracts Act, 1872 state that in case a contract is entered into
between the parties where the consent of one of the parties is obtained by
coercion, undue influence, fraud or misrepresentation, the consent is not free
and the contract is voidable at the option of the party whose consent was so
obtained. That is, one will have to prove in the court that his/her consent was
not free and ultimately, it will be the court who will declare the consent as not
free. That is what the Karnataka High Court explained in Narayanamma v/s
Papanna The Court held that the aggrieved party, whose consent was not free
cannot cancel the gift unilaterally. It is the Court of Law which will declare the
consent of the aggrieved party to be obtained by coercion, undue influence,
fraud or misrepresentation and thus revoke the gift.

Revocation of Gift under Mohammedan Law

Since the provisions of the Transfer of Property Act, 1882 regarding gifts are
not applicable to the Muslims as being inconsistent with the Mohammedan
Law (Section 129), the same is governed by Mohammedan Law. A gift is known
as Hiba under Muslim personal law.

Under Muslim Law, a gift is not complete until the property being gifted is
delivered by the donor to the donee. Thus, obviously, before the delivery of
the property being gifted, the gift can be revoked as the gift is not yet
complete.

On the other hand, if the property being gifted has been delivered, it cannot be
revoked without the consent of the donee. Even if it can be revoked, it can be
done only by the decree of a court.

While the Shia Muslims are governed as:

• Revocation possible by a mere declaration by the donor, that is,

court’s decree is not required
 • Gift made to spouse is revocable

• Gift made to a relative within the prohibited degrees or not, is

revocable

Conclusion:

These are the main provisions with regard to revocation of gift made by
Muslims specifically and others.Thus, one can clearly conclude that revocation
of gift is possible, but in certain circumstances, on the fulfilment of certain
conditions.

36.Distinguish between apportionment by time and apportionment by

estate.
Section 36 & 37 of the Transfer of Property Act lay down the rules regarding the
principle of apportionment. It is classified into two types

Apportionment of Property by time

Section 36deals with the apportionment of time, which states- “In the absence
of a contract or local usage to the contrary, all rents, annuities, pensions,
dividends and other periodical payments in the nature of income shall, upon the
transfer of the interest of the person entitled to receive such payments, be
deemed, as between the transferor and transferee, to accrue due from day to
day and apportionable accordingly but to be payable on the days appointed for
the payment thereof”.

This principle does not apply on tractions which take place by operation of law
but to those transaction based on equity.

When a property generates certain kind of periodical income, apportionment of

income between the transferor and transferee arises. The general rule in
regards to the transfer of income between the transferor and transferee is dealt
in section 8 of the Act and is inapplicable on transaction of periodical nature
requiring apportionment.

Apportionment of Property by Estate

Apportionment in respect of estate may result either from the act of the parties
or from the operation of law.

Section 37 deals with this kind of apportionment stating that “ When, in

consequence of a transfer, property is being divided and held in several shares,
and thereupon the benefit of any obligation relating to the property as a whole
passes from one to several owners of the property, the corresponding duty shall,
in the absence of a contract, to the contrary amongst the owners, be performed
in favour of each of such owners in proportion to the value of his share in the
property, provided that the duty can be severed and that the severance does
not substantially increase the burden of the obligation the duty shall be
performed for the benefit of such one of the several owners as they shall jointly
designate for that purpose:

Apportionment by estate simply means transferring of property to several

person whereby distribution of benefits and obligation arising out of property
between those several owners takes place.

Section 37 i.e. apportionment by estate highlights a situation where income

arising out of the property is apportionment between owners on the basis of
share in the property. How the payment is to be done whether separately to
owner or to single has to be contemplated. This section basically deals with
apportionment in case tenancy be liable only singly.

37. Write a note on Transfer of property by exchange.

Introduction:

Exchange is defined in section 118 of the Transfer of Property Act, 1882. The
exchange of property in this act relates to immovable property only. The
exchange of moveable property is governed by the Sale of Goods Act. The
literal meaning of exchange is giving and taking of something.

In the early decades, the concept of exchange was known as barter

system. The people used to exchange their things and commodities with
others who are in need of them. And in return, they used to get something
which is useful for themselves.
Essentials of Exchange

1. There must be two persons for the purpose of exchange.

Their intention to transfer the things must be with mutual consent. If either of
them has not given consent, then it is not exchange.

3. There must be a transfer of ownership of a thing from one person to

another and vice-versa.

4. Any of the thing which is getting exchanged can be any immoveable

property but not money. Money can’t be a property in exchange. (If money is
involved, it becomes sale and not exchange.) (But money can be exchanged if
both parties exchange money. Like A gives 71 rupees to B, and receives 1 dollar
from A. See next to next heading.)

5. The exchange takes place between the parties like the process of sale. One
person transfers his ownership to the other person, and likewise, other person
does.

38.Distinguish between trust and bailment.

TRUST AND BAILMENT

(i) Bailment is better defined as a delivery of personal chattels upon a

condition, expressed or implied that the property shall be

redelivered to the bailor, or according to the direction of the bailor

when the purpose of the bailment has been carried out.

 (ii) Bailment was a recognised common law institution, where trusts

were recognised by the courts of equity.

(iii) Bailment only applies to personal property i.e. chattels while trust

applies to as all kinds of property.

(iv) The bailee has only a special property or special ownership of the

goods bailed, whilst the general property or general ownership

remains in the bailor whereas, the trustee is the full owner.

Consequently, the bailee cannot, as a rule, pass a good title to the property

which will be valid against the bailor, whereas, a trustee can pass a good title to

someone or a purchaser who acquires ownership conscientiously as a bonifide

purchaser for value without notice of the existing trust.

39.Write a note on attestation.

Introduction:
A creation of a legal instrument requires some form and formality as a proof of
authenticity of the same legal instrument or document in the eyes of law, that
the document has not been created by any force, fraud, cohesion or undue
influence. constitutes the essence of attestation. The Transfer of Property Act
does not require attestation for every legal instrument but for some. Thus, legal
instruments or documents which constitute transactions of lease, sale or any
kind of exchange do not require attestation whereas gifts and mortgages require
not only legally written documents but also for them to be a valid transaction,
attestation is mandatory.

Section 3 of the Transfer of Property Act defines ‘Attestation’ in relation to a

legal instrument. It states that a valid attestation constitutes an execution of a
legal instrument by the executant or by any other person who has been directed
by the executant to personally acknowledge the attestator of the execution,
with the attestator signing or affixing his mark on the instrument in the presence
of the executant as a proof of his acknowledgement of the attestation. Thus by
this the attestator becomes the ‘attesting witness’ to the act of execution of a
legal document or instrument.

Essentials of a Valid Attestation

1. The attesting witnesses must always be two or more for it be an authentic

attestation.

2. The attestator though need not see the execution of the legal instrument, he
must either see the executant sign or affix his mark or see anyone else do so
on the direction of the executant or receive personal acknowledgement from
the executant of the same.

3. But, it is mandatory for the attestator to sign or affix his mark in the
presence of the executant for it to validate as an ‘attesting witness’.

4. The attestator can only sign after the execution of the legal
instrument/document is complete for it to be a valid attestation.

5. The attestators (two or more) need not sign or affix their mark at the same
time.

6. There is no particular form of attestation that the parties need to adhere to.
Even a signature by an attesting witness at the legal document with all form
and formality may constitute attestation.

7. The personal acknowledgement to the attestator must be given by the

executant himself and not through any other source.

8. ‘Attestator should be sui generis’ i.e. the attestator should be competent to

contract. Thus, a minor cannot be an attestator.

9. ‘Attestator must be AnimoAttestandi’ i.e. an attestation will only be valid if

the attestator has signed the legal instrument with an ‘intention to attest’ to
authenticate the execution of the document.

10. Attestation under the Transfer of Property Act does not validate an
attestation if the attesting witness is a party to the transfer’.
11. The attestator is not ‘estop’ by the attestation of a deed except that he
witnessed the execution of the deed. The mere attesting of a document by the
attestator is no proof that he is aware of the contents of the document.

12. The attesting witnesses need not identify each other for it to constitute a
valid attestation.

40.What are the effects of sale by co-owner?

Introduction:
Transfer by co-owners means when two or more persons hold title to the same
property and the transfer a portion of share, the transferee takes the place of
transferor who has transferred his share. However, in case of co-owner of
dwelling house does not give the right to joint possession to transferee.
As per section 44 of transfer of property act which also deals with the rights of
a transferee and also safeguards their rights. Here the transferee steps into the
shoes of his transferor that means the Co-Owner and further is clothed with all
the rights and become subject to all the liabilities of his transferor. It basically
becomes as much a co-owner as his transferor was before the transfer.
Here the Transferee from a co-owner acquires rights like i.) a right to Joint
possession of the property[11] ii.) a right to enforce partition as against other
co-owners[12]. Other rights include right to make improvements and right to
peaceful possession.
Right to Joint Possession: Each Co-owner has proprietary right in whole estate.
Here transferee becomes the co-owner and getting all rights like joint
possession in property except a dwelling house. In case where a co-owner or his
transferee is ousted from joint possession, then he is entitled to get joint
possession by a suit, and not necessary forced to sue for partition.
Right to peaceful possession: Here co-owner transfers his separate plot and
transferee gets possession on that remaining part of co-owner, his transferee
cannot be disturbed by the other co-owners until and unless a final partition
takes place. So, a tenant of a land who derives his title from all co-owners cannot
be disturbed by one co-owner without consent of all.
Right to make Improvements: In order to make construction on any part of land,
co-owners can make out and he is allowed to do so. Whereas he is not entitled
to do construct on any other portion of joint property or to the detriment of
others co-owners.
Right to enforce Partition: As in every case of Joint partnership, each party has
a right to demand partition that means a right to be placed in a position to enjoy
his own right separately without any interference and interruption. As this
section 44 applies all transfer including sales and mortgages or lease. Here a
lessee of an undivided share can maintain a suit for partition a mortgagee and
even a life tenant is entitled to seek partition subject to condition that it gives
effect to the transfer. Now a monthly tenant was also allowed to enforce a
partition there was no probability of the lease being determined. In a suit for
partition there must be unity of possession and unity of title. A claim for
partition can be refused on the ground of inconvenience after fulfilling
conditions.
In case of Partial partition that prevents the working out of equities between
the co-owners is not maintainable. The purchaser of a co-owner’s share in one
particular item of property can file a suit for recovery of that share in the item
without filing a suit for general partition.
Muslim co-heirs and partial partition: In such a case where property has
devolved on several co-heirs under the Mohamedan Law, definite fraction of
every part of estate entitles to all co-hires. Then one of co-heirs can ask for
recovery of his share of the common property by another co-sharer.
Rights of purchaser of a Hindu coparcener’s interest: Here this concept says the
purchaser of the interest of a coparcener in a Hindu Joint Family acquires as
against the other coparceners the right to institute a suit for general
partition. The Madras High Court holds that such a purchaser has no right to
joint possession. His right to partition may be worked out in suitable case for
recovery of possession by the non-alienating coparceners as well as alienating
coparceners.
Co-sharer’s suit against trespasser: Here a co-owner has right to sue a
trespasser in ejectment without impleading the other co-sharers. A tenant on
sufferance is on the same footing as a trespasser.
Claim to mesne profits against a co-sharer: where the possession of entirely
joint property by a co-sharer is not wrongful. Thus, the co-sharers who haven’t
taken any action to take possession cannot claim mesne profits.

41.Property of any kind may be transferred? State the exceptions to this rule.
Exceptions to the transfer of property come under Section 6(a) – 6(i) of the act.
So the following are Non-Transferable Property under the act: –
1. Spes Succession [Section 6(a)]: –
o Clause (a) describes spes successionis cannot be
transferred. This clause states that the transfer of a bare
chance of a person to get a property is prohibited under this
section. For example, Arun expecting that Chandini, his
aunt, who had no issues, would bequeath her house worth
 Rs. 50,000 transfers it to Bhushan. The transfer is invalid as
it is a mere matter of chance of receiving the property on
the part of Arun. Thus, it is invalid.
o The chance of an heir-apparent in succeeding of getting the
property, the chance of inherited relationship upon the
death of any relative, or any other mere possibility of this
nature cannot be transferred.
o For example: – ‘A’ dies leaving his widow ‘B’, and his
nephew ‘C’, here ‘C’ only have spes succession as his
succession to the estate depends upon the factor, i.e., ‘B’
leaving the property intact.
2. Right of re-entry [Section 6(b)]: –
o Clause (b) mentions that the right of re-entry cannot be
transferred. The right to re-entry implies a right to resume
possession of the land which has been given to someone
else for a certain time. The section mentions that the right
of re-entry cannot be transferred by itself apart from the
land.
o A mere right to re-entry cannot be transferred to anyone
except the owner of the property affected thereby.
o For example: – ‘A’ grants his plot to ‘B’ on a lease, for 5
years; with a condition that ‘B’ cannot dig a tank on the
land, if ‘B’ does any such act then ‘A’ has the right to re-
enter. So, here ‘A’ cannot transfer his right to re-entry to ‘C’
for the breach of the condition. If ‘A’ does any such act of
transfer of his right to ‘C’ then this transfer will be regarded
as invalid.
3. Easement [Section 6(c)]: –
o Clause (c) mentions that easement cannot be transferred.
An easement is a right to use or restrict the use of land of
another in some way. For example, the right of way or right
of light cannot be transferred.
o An Easement cannot be transferred except the dominant
heritage.
o For example: – Right to way, right to light, right to water,
etc. These rights cannot be transferred without property
which has its benefits.
4. Restricted Interest [Section 6(d)]: –
o Clause (d) mentions that an interest restricted in its
enjoyment of himself cannot be transferred. For instance, if
 a house is lent to a man for his personal use, he cannot
transfer his right of enjoyment to another.
o A person having right to a property can transfer the same
either subject to a restriction or without restriction. Where
property is transferred subject to a restriction the transferee
is supposed not to act contrary to the restriction. Thus, if
property is transferred to the transferee with a restriction
that it is to be enjoyed him personally, he shall have no right
to transfer such a property and if he transfers the property
in violation of the restriction the transfer shall be void under
this clause. Under this clause, a trustee cannot alienate his
office because his office is based on personal confidence.
5. Right to Future Maintenance [Section 6(dd)]: –
o Clause (dd) restricts the transfer of the right to
maintenance. Such a right cannot be transferred as such
right is for the personal benefit of the concerned person.
o The right to future maintenance is only for the personal
benefit of the person to whom it has been granted, thus it
cannot be transferred.
o “A right to future maintenance, in whatsoever manner
arising secured or determined, cannot be transferred”. A
right to receive maintenance is a personal right, although
any particular property or the income thereof may be
charged with it. The right of maintenance is a personal right
and it is not transferable. But this right can be transfer in
case of any arrears of maintenance but as to future
maintenance it is not valid.
6. Mere Right to Sue [Section 6(e)]: –
o Clause (e) provides that mere right to sue cannot be
transferred. The prohibition has been imposed as the right
to sue is a right which is personal and exclusive to the
aggrieved party. For example, a person cannot transfer his
right to sue for the damages suffered by him due to breach
of contract by the other party.
o A mere right to sue cannot be transferred. The right to sue is
personal to the party aggrieved.
o For example: – Damages for the breach of contract or tort,
as it claims for past means profits for suing an agent for his
accounts, for pre-emption, etc.
o These rights cannot be transferred.
7. Public Office [Section 6(f)]: –
o Clause (f) forbids the transfer of public offices. The
philosophy behind the prohibition is that such a transfer
may be opposed to public policy in general. A person is
eligible to hold a public office on the grounds of his personal
qualities, and such qualities cannot be transferred. Thus, the
transfer of public offices is prohibited under this section.
o A public office is non-transferable property therefore cannot
be transferred, nor can the salary of the public officer be
transferred.
o Thus, prohibition is based on public policy as a public office
is held for personal qualities.
o If the office is not public, it will be transferable, even if the
discharge of its duties is indirectly beneficial to the public.
8. Pensions [Section 6(g)]: –
o Clause (g) of section 6 provides that pensions cannot be
transferred. Pensions allowed to military and civil
pensioners of government and political pensions cannot be
transferred. In simpler terms, a pension may be understood
as any periodical allowance which may be granted in regard
to any right of office but only on account of the past services
offered by the pensioner.
o The stipends which are paid to military, naval and air forces
and civil pensions of government and political pensions
cannot be transferred.
o Pensions mean personal allowance or stipend not
concerning any right of office but of special merit.
9. Nature of Interests [Section 6(h)]: – In this, no transfer can be made
in three conditions: –
o This clause prohibits transfer which will oppose the interest
affected thereby. The transfer is also forbidden if the object
or consideration of the transfer is unlawful. Moreover, a
transfer by a person who is legally disqualified from being a
transferee is also forbidden.
o Opposed to the nature of business: – There are things which
from their very nature are not transferable. It includes, res
communes (i.e. things of which no one in particular is the
owner) or also known as res nullius (i.e. thing without an
owner such as air, water of rivers etc.). These things from
their very nature are not transferable. Similarly, res extra
 commercium (i.e. things which cannot be the subject of
commerce) e.g. property dedicated to a idol cannot be
transferred.
o Anything with an unlawful object or consideration within
the meaning of Section 23 of the Indian contract act, 1872
cannot be transferred. A property otherwise transferable
become non-transferable when the object or the
consideration of the transfer is unlawful. Thus a house given
on rent for the purpose of gambling or prostitution being
immoral or opposed the public policy is invalid.
▪ Is fraudulent
▪ It is against public policy
▪ It is prohibited by law.
▪ Is of such a nature to defeat the provisions of any
law.
o A person legally disqualified to be a transferee: – A transfer
cannot be made in favor of a person who is disqualified to
be transferee. Under Section 36 of Transfer of property act,
a judge, a legal practitioner or an officer connected with
courts of justice are disqualified for purchasing any
actionable claims.
10.Statutory Prohibitions on the Transfer of Interest [Section 6(i)]: –
o Clause (i) of section 6 was inserted by the Amendment Act
of 1885. The clause declares that certain interests are
untransferable and inalienable. For example, a farmer of an
estate, in respect of which default has been made in paying
the revenue, cannot assign his interest in the holding.
o The general rule is that leasehold are transferable but this
clause makes an exception to this rule and declares certain
interest untransferable. 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 cannot assign or transfer their interest in
the holding.
o This section makes it clear that a tenant cannot have an
occupancy of a non-transferable right in any way to transfer
his interest.

42.Distinguish between lease and license.

Parameters of
License Lease
Comparison

A license is just authorization with A lease is a conveyance of a stake

Meaning
no transfer of ownership. in a certain piece of real estate.

A license does not arouse such A lease generates a stake in the

Create
curiosity. asset in favor of the renter.

A license cannot be transferred or A lease is simultaneously portable

Nature
inherited. and inheritable.

A licensee cannot claim his

A lessee does have the authority
ownership in his name since he has
Right to defend the ownership in his or
no intellectual interest in the
her capacity.
house.

A lessee in occupancy has the

A licensee has no right to any
Entitled right to any renovations or
renovations or additions.
additions made to the premises.

43.State the exceptions rule against perpetuity as provided in the transfer of

property act.
It is basic rule of Transfer of Property that one must enjoy the property
absolutely during his lifetime. One cannot be deprived of his right of
enjoyment in respect of the property as he like in his lifetime. The policy of the
law has been to prevent property from being tied up forever. Perpetuity is an
interest, which will not vest till a remote period. One cannot postpone the
vesting of the property in the transferee beyond a certain limit. The period for
which vesting may be lawfully postponed is called :perpetuity period '.
Sec.14 - Rule against perpetuity
No transfer of property can operate to create an interest which is to take
effect after the life time 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.
The rule against perpetuity in short - ' vesting cannot be postponed beyond the
life of living person and minority of Unborn person'. This provision permits
perpetuity up to certain period, beyond that period law does not allow
perpetuity.
The head note is wrongly worded or Framed, because Section 14 allows to
certain extent the postponement of vesting and therefore the title should have
been 'rule of perpetuity'.
Illustrations
1) If an estate is given to a living person, A for life, then to a living person, B for
life and then to Unborn son of B. Here the son of B must be in existence on or
before the date of expiry of the life estate in favour of B .
2) The vesting of absolute interest in favour of an Unborn person maybe
postponed until he attains full age. for example an estate may be transferred
to A, living person, and after his death To His unborn son when he attains the
age of 18. Such a transfer would not be violative of the rule against perpetuity

Exception to the rule against perpetuity

following are the nine exception to the rule against perpetuity .
1) vested interest is not affected by the rule because once the interest are
vested it cannot be bad for remoteness.
2) The rule is not applicable to land purchased or held by Corporation.
3) Gift to charities, the rule does not apply to transfer for the benefit of public
for religious, pious, or charitable purposes.
4) Properties settled upon individuals for memorable Public Service.
5) The rule against perpetuity does not apply to Personal agreement. for
example.. agreement which do not create any interest in the property
6) A covenant of redemption in mortgage does not effect by the rules the rule.
7) The does not apply to contacts for Perpetual renewal of lease.
8) The rule also does not apply where only charges is created which does not
amount to a transfer of an interest.
9) Contract of preemption also not affected by rule against perpetuity.
Case Law -
1) Anand Rao Vinayak Vs Administrator general of Bombay,1896 .
In this case Bombay High Court declared that the gift void as offering against
perpetuity when a gift was made of movable property to a son with gift of
shares in the property to son's sons son when they should attend the age of
21.
2) Abdul fata Mahomed Vs Rasamaya ,1894.
The privy Council held thar a gift to an Unborn generations is Forbidden by
Mohammedan law except in the case of Wakf.
44.Explain the law relating to the mortgages right of redemption.
Earlier Answer.
45.Discuss the doctrine of part performance. State the difference between
Indian law and part performance.

Introduction

The statute stipulates that a sales deal is concluded when the seller offers to
sell and the buyer agrees and purchases to take account of negotiated terms. It
may be oral. It may be signed or not by exchanging information. It may be
signed by all parties on a single paper. It is also possible for each party to sign a
copy by a contract in two sections, and to replace the signed copy by the buyer
which means that the copy is signed by the seller and the seller has a copy
signed by the buyer. The seller will still execute the contract and send it to the
buyer who approves it under the doctrine of part performance.

The performance of the selling act shall require no certifying witnesses such as
a gift certificate, requiring at least two certified witnesses, as provided for in
Section 123 of the Property Transfer Act of 1882, at the time of execution;

Essentials Elements
1. The contract must be of immovable property

a. The contract must be for consideration

b. The contract must be in writing and signed by him/her or on
behalf of him.
c. He/she must have some conditions under the contract for
a transfer of immovable property.
d. The contract or the agreement to sell must be registered.
e. The language of the document must be such that the terms are
certainly able and not vague must be reasonable and clear if not
then the doctrine does not apply[2].
2. The person to whom it is transferred

a. If the property is in custody or some part of it already, or if the

property is in possession, the same will occur.
b. In the exercise section of the deal, the act of taking possession
shall be taken.
c. And, to facilitate or invoking the section for the contract, the
transferee who was still in charge of the contract has to act
something in its advancement.
3. The person to whom the property is transferred is willing to perform the
contract or part of it.

4. The person who is transferring the property or any person on behalf of him
cannot claim any right on the property on which the person to whom the
property is transferred is residing or has possession unless the rights were
explicitly mentioned in the terms of the contract.

5. The Doctrine of part performance cannot be invoked if the manner of the

contract has not been completed as prescribed by the statute.

Difference between English law and the rule laid by this statute

The main differences between the English theory and the law in this section
are:

1. English law applies in oral contracts, but this Clause is only limited to
contracts in:
(a) writing or

(b) signed by or on behalf of the transferor to provide the conditions required

for the transfer.

2. According to English law –

(a) both the transferor and the transferee may request the precise
implementation of this contract,

(b) One may, in violation of the contract, resist the lawsuits of the other
claiming rights; under this section, the transferor or any person claimed in his
place shall, however, be deprived, except as specifically provided for under the
conditions of the contract, of enforcing against him and against any person
claiming in his place all rights concerning the property which the transferred
person has taken over.

3. According to English law, the partial execution of a contract is only equitable

rather than legal; but under that section, the doctrine of part performance
results in a contractual defence right; but that right is one which the claimant
may have had under the written arrangement, if only in the absence of any
formalities. The section confers upon the group only those privileges as they
will be given by written agreement for lack of formality, but it does not offer
any rights that would not be granted by an informal agreement.

BY

ANIL KUMAR K T LLB COACH