PROPERTY LAWS AND EASEMENTS

Unit I- Jurisprudence and Preliminary rules

1.1 Concept and Scope

Introduction and History-

1. TOPA doesn’t define property anywhere. It primarily deals only with the transfer of
property and not property as such.
2. Transfer of property (other than that of agricultural lands) finds mention in Entry 6 of
List III and thus both the centre and states may legislate with respect to the same. Entry
18 of List II talks of agricultural lands.
3. Easements, also called the ‘law of servitude’ form a part of these laws.
4. Feudalism is one of the reasons why transfer of property came into existence. Earlier
all lands belonged to the king the people would either fight wars or till their lands. Later,
it was distributed amongst landlords. Lord Birkenhead’s Act in 1922 was the first law
pertaining to abolition of feudalism.
5. Till, 1882, there were no laws with respect to property in India and English laws were
applied with little success.
6. Then, the 1st law commission was constituted which tried to codify several laws. This
was followed by the Indian Civil Commission (check) which prepared drafts of TOPA as
well and finally the Act came into force in 1882.
7. After this, 7 bills were passed to amend the Act. It was re-examined in 1921 and a bill
was made in 1927.
8. It was again examined in 1929-30 by a select committee and important amendments
were made. (30th April, 1930) The amendments apply to transfers after 30th April, 1930 or
pending transfers.
9. Some of the changes introduced by the amendment include-
(a) Registration made compulsory and it was said that registration amounts to a
constructive notice.
(b) Notice to an agent amounts as notice to the principal.
(c) Statutory recognition of the doctrine of part performance.
(d) Doctrine of subrogation extended to persons other than the mortgagee like creditors,
etc.
(e) Remedy of fore closure abolished as regards certain mortgages. The remedy was
made available to Indians as well.
(f) Usufructuary rights or rights to benefits arising out of land incase of mortgage made
available to the mortgagee even when only a promise of mortgage has been made without
handing over possession.
(g) It was laid down that a mortgagee must bring a single suit for all matters relating to a
single mortgaged property.
(h) Laid down that if transfer to a person in a particular class fails, transfer to the entire
class doesn’t fail and stays valid for the others.
(i) Recognition of right of mortgagor to lease out property.
(j) Right of mortgagor to inspect title deeds.
(k) Right of mortgagee to compensation for necessary improvements on property.
(l) A mortgagor having right to redeem may require mortgagee to transfer mortgaged
debt to a 3rd party.
(m) Incase of mortgage by conditional sale, such condition to be made part of the deed.
(n) Mortgagor’s right to redeem several mortgages to the same mortgagee separately or
simultaneously.
(o) Mortgagee’s obligation to enforce several mortgages to the same mortgagor
separately or simultaneously.
(p) Provision for mortgagee to appoint receiver incase of sale without the intervention of
the court.
(q) Modification of law of merger.
(r) Provision requiring registered leases to be executed by both parties.

10. Main features of TOPA-

(a) It deals with all kinds of transfers but excludes succession, auctions, etc.
(b) It doesn’t define property as such and deals only with the transfer of property.
(c) It excludes agricultural lands.
(d) It is not applicable in Delhi, Punjab, etc. but may be made applicable by government
notification.
(e) It gives a restricted and negative definition of immovable property.

11. Property in common language means something over which ownership subsists. S.2
of the Benami Transactions Act, 1988 defines property as movable, immovable, tangible,
intangible and all other rights and interests in relation to such property.
12. Ownership is where all rights with respect to a particular thing are concentrated in a
particular person. As per Austin, it is a jus in rem or a right against the world. It is
indefinite in point of use, unrestricted in point of dispossession and unlimited in
point of duration.

1.1.1-Kinds of Properties

1. Property may be classified as physical/corporeal/tangible property and

incorporeal/intangible property (like IPR s). Physical property may again be classified as
movable and immovable property.
2. In English law, it is classified into realty or all immovable property and
personally/personalty or all movables (personal property).
3. TOPA gives a negative definition of immovable property as it regards anything other
than standing timber, grass and standing crops as immovable property.
4. S.3 of the General Clauses Act defines immovable property as land, benefits arising
out of land and anything attached to the earth.
5. For all benefits arising out of land, the same must be registered so as to be able to
claim them. (Anand Behera v. State of Orissa) This also includes profits derived from
land.
6. Anything attached to the earth includes things rooted in the earth like trees, things
embedded in the earth such as buildings and things attached to what is embedded in the
earth like windows, doors, etc.
7. In English law, 2 maxims are followed namely- Quicquid plantatur solo solo cedit
(with respect to plants) and Quicquid inaedificatur solo solo cedit (with respect to
buildings), which means that anything attached to the earth belongs to the earth. This rule
is not followed as strictly in India. To determine whether things embedded in the earth
belong to the earth, 2 tests need to be applied. The first test is as regards the degree or
mode of annexation and the second test is as regards the purpose or object of annexation.
As per Holland v. Hodgson, the first test is more popular under English law while Indian
law follows both. Generally, there is a relaxation of rules with respect to
trade/commercial fixtures in which case the maxim is not followed.
8. As regards things attached to what is embedded, they must be of such nature that they
exist for permanent use or enjoyment as in case of doors, windows, etc.
9. Other types of immovable property include mortgaged debt, reversioner of lessor, lease
hold right of a tenant and mortgagee’s interest.
10. Movable property on the other hand has been defined under S.2(g) of the Registration
Act as one that includes standing timber, growing crops, grass, fruit and property of every
description other than immovable property.
11. Standing timber is that which is used for the purpose of building or repairing houses.
This principle was laid down in Marshall v. Green wherein it was said that standing
timber is an exception to the general rule of growing trees being immovable property as it
is decided upon by the parties that it would be immediately removed from land and the
purchaser wouldn’t derive any benefit from future vegetation of the thing or from the
nutriment it derives. This was also held in Shantabai v. State of Bombay.
12. Growing crops have been held to include all vegetable growths which have no
existence apart from their produce such as paan leaves, sugarcane, etc. Grass- (dbt pg
23, Mulla)
13. Transfer defined under S.5 as an act by which a living person conveys the property in
present or in future to one or more living persons or to himself.
14. It has been held that abandonment or relinquishment or surrender may not be
regarded as transfer as transfer refers to an ‘act’ by parties and in these cases there is no
shifting of proprietary interest.
15. Transfers can always take place amongst living persons and are hence always inter
vivos. An exception has been made under S.13 for transfer to an unborn person. A
corporation has been regarded as a living person but not an idol. Wakf, dbt, pg 81,
Mulla
16. Transfer to oneself is allowed as in case of a person creating a trust out of his own
property becomes a trustee of such property.
17. Transfers may both be in the present or in the future. For future transfers to be valid,
they must not be uncertain, illegal or immoral.
18. There are 2 concepts under English law as regards the same, reversion and remainder.
Reversion is the residue of an original estate which is left with the grantor after he has
granted a smaller estate. For e.g. the interest of a lessor is a reversion (right left with him
after leasing out property) which is a future interest pending the termination of the lease.
A remainder on the other hand is an interest granted out of the original estate at the same
time as, but in succession to a precedent interest. For e.g. property granted to A for life
and then to B, here the interest of B is a remainder and the estate of A is the particular
estate which supports it.
19. A family arrangement is not a transfer. (SK Sattar v. Gundappa, Hansa Industries Pvt.
Ltd. v. Kidarshan Industries)
20. A partition is not a transfer.
21. A compromise doesn’t amount to a transfer. (Mani Shankar Sharma v. Raj Kumari
Sharma)
22. A charge is not a transfer as in that case only a personal obligation is created and
there is no right in rem. Also, creation of an easement is not a transfer.

1.1.2-Transferable Property, Principle and Accessory Rights

1. Essentials of a valid transfer-

(a) Property must be transferable and mustn’t be an exception under S.6.
(b) Transferor must be competent to transfer.
(c) Transferee must be competent.
(d) Consideration/object must be lawful.
(e) Transfer not to be opposed to public policy.
(f) Transfer should be done in a manner and form required by TOPA.
2. S.6 expressly mentions about property which is not transferable and provides the
following exceptions-
(a) The first exception is ‘spes successionis’ or the mere chance of an heir apparent to
succeed. This is primarily because it is only a bare possibility and not possibilities
coupled with an interest such as a contingent or future interest created in property. An
heir apparent is only a person who would be an heir if he survived the propositus and the
propositus died intestate. Such a possibility even under English law is not an interest or
even a contingent title. (Re Parsons, (1890)45 Ch D 51) Also, a Hindu reversioner has no
right in present in the property.
(b) A mere right to re-entry for breach of a condition-It is the right which the lessor
reserves for himself when the lessee breaches any condition like non-payment of rent,
bills, etc. and cannot be transferred without transferring the entire interest in property.
Till the absolute interest is transferred, it remains a personal license and is not
transferable. This was also held in Re Davis & Co., ex-pane Rawlings, (1889)22 QBD
193.
(c) Easement detached from the dominant heritage cannot be transferred. A servient
heritage refers to such property on which the easement primarily exists for e.g. a well on
a property and a dominant heritage is the land which derives benefit of such easement.
When the dominant heritage is transferred, the easement gets automatically transferred as
a legal incident to it and not otherwise. The present law states that there cannot be any
easement in gross or in its own right. (Sital Chandra v. Delanney (1916) 20 Cal WN
1158)
(d) A restricted interest to enjoyment of property by the owner is not transferable, unless
such restriction is void under S.10, for e.g. revenue collectors deriving authority from the
government cannot transfer such right to collect revenue. A transfer of such a property
would defeat the very object of restriction. An example may be given of the case of
Zobair Ahmad v. Jainanandan where the right of a Mohammedan widow to retain
possession of her husband’s property in lieu of her dower debt was considered personal to
her and regarded as restricted interest under this section. A right to pre-emption is not
transferable. Dbt, pg 101, Mulla
(e) Right to future maintenance arising or secured in whatsoever manner cannot be
transferred. It is a personal right and is incapable of assignment (Narbadabai v. Mahadeo,
(1880) 5 Bom 99) but arrears of maintenance may be attached and sold like any other
debt. (Kasheeshure v. Greesh Chunder (1866) 6 WR Misc 64) However, it has also been
decided that if land is assigned to a Hindu widow in lieu of maintenance, the transfer of
such land is not transfer of a right of maintenance and is hence valid. (Dhup Nath v. Ram
Charitra (1932) 54 All 366)
(f) A mere right to sue is not transferable. A right to sue is personal to the party aggrieved
and there can be no assignment of a right to sue for damages for tort or breach of
contract. (Abu Mohammed v. SC Chunder, (1909) 36 Cal 345) Such a right to sue must
be distinguished from an actionable claim as the latter is property and the assignee
has a right to sue to enforce the claim. (Read pg 109, Mulla)
(g) Transfer of a public office and salary of a public officer as such post is held for
qualities personal to the incumbent. It is opposed to public policy that a public officer
should transfer the salary of his office, for the salary is given for the purpose of
upholding the dignity and the proper performance of its duties. (Liverpool Corporation v.
Wright, (1859) 28 LJ (Ch) 868)
(h) Transfer of stipends allowed to pensioners of the armed forces, the government and
political pensions. A pension may be transferred to the wife or children of pensioners
after their death as it is within the family.
(i) The next exception makes property non-transferable in 2 cases- when the nature of
interest is affected or when such transfer has an unlawful object or consideration. It
thereby prevents illegal, immoral and invalid transfers. As regards the first case, an
example may be given of property dedicated for religious or public purposes which are
classified as res extra commercium which cannot be bought or sold. (Raja Varma Valia v.
Kettayath, (1875) 7 Mad HC 210). The next case follows S.23 of the Contract Act which
prohibits contracts without lawful object or consideration, for e.g. a contract to kill
somebody. As regards transfer of property, transfer to a prostitute for future cohabitation
is a transfer for unlawful consideration and is hence not allowed. (Deivanayaga v. Muthu
Reddi, (1921) 44 Mad 329). To come within the ambit of this clause and S.23 of the ICA,
the object or consideration must be forbidden by law or must be of such nature that it
defeats the provisions of law or must be fraudulent or involve/imply injury to the
person/property of another or be regarded as immoral by the courts or are opposed to
public policy. However, the Act is silent about such transfers where the object or
consideration is partly lawful and partly unlawful.
(j) Transfer by a tenant who has an untransferable right of occupancy, transfer of land by
a farmer in default in payment of revenue and a lessee appointed for management of
property under the Court of Wards Act.

3. S.7 of TOPA deals with competency of a transferor. Under S. (6)(h)(3), any person is
competent to be a transferee unless legally disqualified. The transferor under this section
must be competent to contract and must have title to the property or authority to transfer
such property if it is not his own.
4. A minor cannot be a transferor but he may be a transferee. However, a minor’s
property may be used to provide for necessaries (Mohribibi v. Dharmodas Ghosh),
but he cannot dispose off such property. Also, disposition by his guardian is also regarded
as void. His property may be disposed off only with the court’s permission.
5. A lunatic cannot transfer property except during lucid intervals of sanity. He can also
not be a transferee.
6. Earlier even a married woman and pardanashin woman were regarded as incompetent.
A pardanashin woman cannot transfer only if she has always stayed away from society.
7. The maxim ‘nemo dat quod habet’ means you cant pass a better title than what you
have. This relates to the concept of limited ownership/rights as in the case of
corporations, pardanashin women, etc. S.38 of TOPA gives powers to limited owners to
dispose off property under certain conditions.
8. As per S.8, unless a different intention is expressed or implied, when a property is
transferred, all interest with respect to such property gets transferred.
9. Where transferor is both part owner and executor, dbt, pg 131, Mulla.
10. Under Hindu law, there exist concepts like Nidhi and Niheshep which refer to
treasure in the property which are also transferred alongwith the property. Other things
which are transferred with property include Pashan(mountains, rocks, minerals, etc
attached to land), Siddhay (things attached to land which yield a produce), Sadhay (any
other produce from land), Jalnivitham (wells, reservoirs, etc), Arkshan (all privileges
with respect to land), etc. There is also the concept of Agami Ashta Bhogam or whenever
property gets transferred, it gets transferred in its entirety.
11. It was earlier presumed that when property was given to a woman, she would have
only limited estate as regards the same except when it was conveyed in express words.
12. This section doesn’t apply to court sales as such sales effect a transfer by
operation of law. What is sold at a court sale is a mixed question of law and fact to be
decided upon the facts of each case.
13. The presumption of transfer of all interest can be rebutted by express words or
necessary implication. The terms lease and mortgage themselves convey a limited interest
in property. An intention to reserve a right may be implied not only from the terms of the
deed but also from its object. A document must be read as a whole to construe the real
intention of the parties.
14. Transfer of property leads to transfer of all legal incidents to it which includes
easements, rents and profits, things attached to the earth, minerals, parts of machines,
debts and securities, interest on debts, etc.
15. Easements to be transferred include those existing before and at the date of transfer. If
the property to be transferred is a house, all easements attached to it will be transferred.
As regards machines, movable parts of machines pass on with the land and the machine
even though they are detachable.
16. Incase of debts and actionable claims, the securities pass on along with them.
However, securities to a mortgage debt may not be transferred as the same is no longer an
actionable claim. A mortgage being immovable property can only be transferred by a
registered deed. A debt secured by charge however is different from a mortgage debt and
may be transferred as an actionable claim by an unregistered instrument. A charge is
different from a mortgage in the sense that it doesn’t transfer an interest in property but
creates a right to payment out of the property specified.
17. A decree is not considered an actionable claim.

1.1.3 Written and oral transfers

1. S.9 talks about oral transfers where writing is not expressly required by law. However
writing is required in cases like incase of exchange or sale of value more than Rs.100,
incase of sale of intangible property, incase of simple mortgage where delivery of
possession hasn’t been done, incase of mortgage above the value of Rs.100, in case of
lease to be renewed after every year, gifts in relation to immovable property, all
assignments with respect to actionable claims (registration not required), etc.
2. Actionable claims always arise from debts but these don’t include mortgage debts or
debts arising from pledge or hypothecation. (Check TOPA for what all are actionable
claims-objectives in exam)
3.The doctrine of part performance is an encroachment upon the general rule that when
the manner of transfer is to be in a certain way as prescribed by the act, the same may not
be done in another way.

1.1.4 Restrains on alienation, perpetuities-

1. Ownership may be categorised under the following heads-

(a) Absolute ownership
(b) Co-ownership
(c) Conditional ownership
(d) Future ownership
(e) Trust ownership

2. Incase of absolute ownership, the owner has full rights over his property which
includes the right of alienation. No one can restrict such a right. A co-owner’s right is
restricted as he has to ask the other co-owner for his consent in order to alienate property.
Conditional owner cannot also alienate on his own as some condition needs to be
fulfilled. Incase of future ownership, the person gets property only at a future date and
only then can he alienate it. Incase of trust ownership, his rights are restricted including
his right of alienation.
3. Ss. 10 and 11 deal with certain conditions imposed on rights of owners. S.10 lays down
that any condition put by the transferor or any person prohibiting the transferee from
alienating the property absolutely is void. However, partial restrictions are allowed.
4. Absolute restrictions are void as ownership can’t be destroyed and vests in the owner.
5. In Sarju Bala v. Jyotirmayee, an absolute condition restricting alienation of property
except some part for religious purposes was held to be void.
6. The principle underlying this section is that the right to transfer is incidental to and
inseparable from the beneficial ownership of property. An absolute restraint on such
power is repugnant to the very nature of the property/estate. This has also been held in
Metcalfe v. Metcalfe which has made the same principle applicable to gifts of personality
as well.
7. However, a government grant is not included within the ambit of this section. Thus, a
permanent restraint on alienation of a government grant if authorized by law is valid.
This is because a grant made by the government cannot be regarded as a transfer under
S.5.
8. The condition here is a condition subsequent which divests an estate already vested
(S.31) and is to be distinguished from a limitation which is merely to limit or define the
nature of the estate created.
9. If there is a valid transfer, the condition restricting alienation is void and the transfer
stands.
10. The difference between an absolute and a partial restriction can be seen by a test,
namely- if right to alienate is full, restriction is partial and if full right is not available,
such restriction is absolute.
11. Condition restricting alienation during a lifetime is invalid.
12. Cases in which conditions against alienation to a stranger have been held as an
absolute restraint are no longer a valid law.
13. S.10 also doesn’t apply to a compromise which is not considered to be a transfer.
14. If however, there is a restraint on the mode of alienation, then it doesn’t fall within
the ambit of this section.
15. This section contemplates restrictions only on transferee and not the transferor who in
the case of partial interest as in mortgage may be restricted from transferring the
mortgaged property.
16. A lease is an exception to this section as the lessor necessarily retains an interest in
it and as the lessee has only a limited interest, he must be restrained from sub-letting or
assigning the lease.
17. This restriction must automatically mean a right to re-entry. Unless a right to re-entry
is reserved, the breach of such condition would only entitle the lessor to damages and an
injunction.
18. An involuntary alienation doesn’t constitute a breach of a condition against alienation
in lease.
19. Under Hindu law, a condition restricting alienation incase of gift inter vivos as well
as a will has been held to be void. In Muslim law, a restriction incase of a gift has been
held void.
20. Another exception to this section given in the proviso is with respect to transfers
for the benefit of a married woman not being a Hindu, Muslim or Buddhist. This is
to prevent alienation of exclusive property of married Christian, Parsi, Jew, etc. women.
This was done mainly because previously husbands and relatives used to sell off property
of the woman.
21. S.11 lays down that when there is an absolute transfer in favour of a transferee or any
other person who claims a benefit thereunder, a condition showing that such person must
enjoy the property only in a particular manner shall be treated as void during the transfer.
22. Both Ss. 10 and 11 are based on the principle that conditions repugnant to interest
created are void.
23. A distinction between the 2 sections is that a restraint on transfer of property is
repugnant to both absolute and limited interest in property while a restraint on enjoyment
is with respect to only absolute interest in property.
24. It has been held that the provisions of S.11 override S.126 of the Indian Succession
Act and a gift restraining enjoyment is void.
25. The main distinctions between Ss.11 and 31 are-
(a) A direction is envisaged in S.11 while S.31 envisages a condition.
(b) An interest is being created absolutely under S.11 while under S.31, a condition is
being added to the interest created.
26. This section corresponds to S.138 of the Indian Succession Act.
27. This section applies only when there is an absolute transfer of interest. It doesn’t
apply incase of a lessee who is bound by conditions limiting his enjoyment of property.
28. An agreement not to partition also falls within the ambit of this section. It may be
allowed incase of the immediate parties but will not bind their successors in interest.
29. A direction in restraint of partition in a Hindu will or gift is void. Under Muslim law
as well when a condition is imposed which derogates from the completeness of the gift,
such condition is void.
30. An exception to this section is that a transferor can impose conditions on
enjoyment if such restrictions are for the benefit of the adjoining land.
31. This principle has been laid down in Tulk v. Moxhay where the transferor asked the
transferee not to build on the land as it restricted the transferor’s right to light, air and
way who owned land adjoining to the land transferred.
32. Such a condition is a restrictive covenant and will continue to operate unless nullified.
33. To claim benefit under this exception one has to be the original party to the
agreement or his representative or a person who has acquired a benefit under the
agreement.
34. As S.11 applies only incase of absolute ownership, it doesn’t apply incase of lease,
mortgage, etc.
35. In Re Nisbet v. Potts, it was held that a restrictive covenant applies even to a
trespasser. Also, a person who bonafidely purchases land may repudiate the contract if he
was not aware of such a restrictive covenant and had made all efforts to find out.
36. S.12 regards such a condition as void which restricts a person from alienating
property on his becoming insolvent. The object of this section is mainly to protect the
rights of creditors who would be left without any remedy if they are unable to satisfy the
debt from the property of the insolvent.
37. The Indian Succession Act however doesn’t prohibit such a condition.
38. A lease is an exception to this section as a lessor may annex any condition to the
grant as long as it is not illegal or unreasonable. However, the insolvency of a lessee
would not amount to forfeiture unless it is provided in the lease that the lessor has a right
to re-entry on the happening of such event.
39. This rule has been upheld in Re Manchu where the owner gave property to his
daughter stating that it would pass on to her children if she became insolvent. Such a
condition was held to be void.
40. However, such a condition is allowed under English law.
41. Ss. 13 -18 deal with transfers to an unborn person. This is an exception to the rule that
TOPA deals only with transfers inter vivos.
42. S.13 talks about transfer for the benefit of an unborn child. When an interest is
created for an unborn person in a transfer of property, such interest must be preceded by a
prior interest and must extend to the whole of the property.
43. Three rules laid down under this section are-
(a) Since the act recognizes only transfers inter vivos, there is no direct transfer.
(b) There must be a prior description in favour of another who shall be the
mediator.
(c) Only if the transfer is done as a whole is the section attracted. Whole interest in
property here means both ownership and enjoyment.

44. Here, an unborn person may or may not be a child in the womb of the mother. But,
more weightage is given under this section to a child in the womb of the mother.
45. The mediator generally holds property during his lifetime and cannot defect the
interest of the unborn person by transferring the life estate to a third person.
46. If the mediator or transferor dies, the transfer will be kept on hold and will be looked
into by the court incase of transfer by will. Incase of intestate succession, the next
guardian will come into the picture.
47. If the mediator dies, the transferor if alive may appoint another guardian.
48. It corresponds to S.113 of the Indian Succession Act.
49. In Girish Dutt v. Data Din, the gift to unborn persons failed as it was transfer of a
limited interest only and the subsequent transfer to another also failed by virtue of S.16.
50. In Putlibai v. Sorabji, the transfer to an unborn person was held could not take place
as an absolute restriction was put on the enjoyment of property which was considered
void.
51. In Sopher v. Administrator General of Bengal, it was held that transfer to an unborn
person from another unborn person was void. This actually falls within the ambit of S.14.
(Read facts)
52. This section applies both to movable and immovable property.
53. As under Hindu law, transfer in favour of an unborn person was earlier held as void.
Now it is regarded as being valid. However, under Muslim law, such transfers are void.
54. S.14 speaks about the rule against perpetuity. Legally speaking, perpetuity means a
disposition which makes property inalienable for an indefinite period. Hence, a rule
against perpetuities is provided to prevent transfers in which certain future interests may
vest beyond a particular time. Not just a perpetual transfer but even an attempt to do so is
void. This is to ensure that there is no continuous transfer of property within a single
arrangement, so that alienation of property is possible.
55. Perpetual transfers are against public policy and are prohibited even under Hindu and
Muslim laws.
56. Major alterations to this rule in the United Kingdom came into effect under the
Perpetuities and Accumulations Act of 1964, including the application of the 21year
limitation on options. Now the rule under common law stands as- “No interest is good
unless it must vest, if at all, not later than 21 years after some life in being at the creation
of the interest.”
57. In India, S.14 lays down that “No transfer of property can operate to create an interest
which is to take effect after the lifetime of one or more persons living at the date of such
transfer, and the minority of some person who shall be in existence at the expiration of
that period, and to whom, if he attains full age, the interest created is to belong.”
58. So long as the transferees are living persons, any number of successive estates may be
created. But, if the ultimate beneficiary is someone not present at the date of the transfer
(an unborn child either in the womb of the mother or otherwise), as per S.13 of TOPA,
the whole residue of the estate must be transferred to him, provided he is born before
the termination of the last prior estate.
59. However, the vesting of interest cannot be delayed beyond the period of minority,
which is taken to be 18 years from the death of the last prior estate (21 years under
English law). For example, a fund was transferred to X for life and then to Y for life
and subsequently to those sons of Y who attain 25 years of age. Here if the sons of Y
do not attain the age of 25 years, 18 years after the death of Y, they will not get the
property. The transfer comes to an end with the completion of transfer in favour of
the sons of Y, once they attain the age of 25 years and the property cannot be tied
down further. At birth, such sons of Y get a contingent interest in the property
which becomes vested on the fulfillment of the required condition, i.e. attainment of
age of 25 years.
60. In Anandrao Vinayak v. Administrator General of Bombay,a gift of property to sons
when they attained the age of 21 years was held as void as offending the rule against
perpetuity. (As it went beyond the period of 18 years)
61.It also finds mention in S.114 of the Indian Succession Act.
62. However there are certain exceptions to this section. These may be enumerated as
follows-
(a) Under S.15, if there is a transfer to a class of persons for the benefit of such class and
the transfer to some of them fails due to application of S.13 or S.14, the transfer fails only
with respect to such persons in the class disqualified under Ss.13 and 14 and not the
entire class.(Rai Bishen Chand v. Mst. Asmaida Koer.) This changed the old law in
Leake v. Robinson which said that if transfer fails with respect to a person in a class, it
fails with respect to the entire class.
(b) Ulterior transfers
(c) A person may accumulate income to satisfy a debt even it goes beyond the period of
perpetuity. [Re Bewick Ryle v. Ryle (1911) 1 Ch 116] Such debt must be an existing debt
of the transferor or a contingent liability which may arise in the future, provided such
contingent liability is certain. Such debt must be of a person who gets a benefit from the
transfer. But, under English law, the debt of a stranger to the transfer deed is also
considered for this purpose.
(d) Provision of portions for children is allowed if it is for requirements like health,
education, etc. even if it goes beyond the perpetuity period. (Eyre v. Marsden)
(e) Accumulation for preservation and maintenance of property is allowed even if it
crosses the time prescribed. (Vine v. Raleigh)
(f) When a transfer is for public benefit like advancement of religion, commerce, health,
knowledge, etc., it shall be exempted from the operation of S.14. (Commissioners of
Income Tax v. Pemsel) Under both Hindu and Mohameddan law, transfers for religious
and charitable purposes or for the purpose of Wakf are valid. UnderEnglish law however,
even charitable trusts are not an exception to the rule against perpetuity.
(g) When a vested interest is created in favour of someone, there is immediate transfer of
property on such date and hence the question of perpetuity does not arise.
(h) In a mortgage deal, no new interest is created and there is only a present interest
which is the right of redemption, hence it is not hit by S.14. (Padmanabha v. Sitarama)
Similar is the case with a charge (Matlub Hasan v. Mt Kalwati).
(i) Personal agreements are exempted from the scope of S.14 as they do not create an
interest in the property as such. (Rambaran v. Ram Mohit)
(j) A covenant of renewal attached to a lease only renews a right and there is no transfer
as such. Hence it is not hit by S.14. (Kempraj v. M/s Barton & Co.)
(k) Government grants and agreements

63. However, a serious lacuna in the law is that the number of generations to be curtailed
is not certain and is to be inferred only from the deed as the section does not bar any
number of transfers amongst living persons for their life.
64. Difference between Indian and English law of perpetuity-
(a) English law specifically makes a mention of the age of 21 years. Indian law only talks
about minority which needs to be inferred as 18 years.
(b) English law talks of gestation which is provided separately under S.13 in Indian law.

65. In Tagore v. Tagore, perpetuity was considered bad.

66. In Whitby c. Mitchell, it was held that there can be no transfer from an unborn person
to an unborn person.
67. This rule applies both to movable and immovable property.
68. S.15 as seen earlier deals with transfer to a class.
69. However, when there is a transfer for public benefit, this section won’t apply.
70. It corresponds to S.115 of the Indian Succession Act.
71. The rule laid down in Leake v. Robinson is not applicable to Muslims as such.
(check)
72. S.16 talks about ulterior transfers. It states that if a prior interest in property fails,
subsequent interest attached to the same also fails. This was also upheld in Money Penny
v. Derring.
73. But, this section is applicable also if the prior interest fails because of provisions
other than Ss. 13 and 14. An example may be given of a prior interest dependent on a
condition precedent which is invalid on account of S.25 and thus fails.
74. If however, the prior interest is not invalid but fails subsequently because the
condition upon which it is dependent is not fulfilled, the subsequent simply gets
accelerated under S.27.
75. This section corresponds to S.116 of the Indian Succession Act.
76. This rule doesn’t apply if the subsequent interest is an alternative to the prior interest
and is not dependent on it.
77. This section hits only those subsequent interests which are created in the same
transaction.
78. This rule is applicable to Hindu law as well as has been seen in the case of Tagore v.
Tagore. (check)
79. S.17 talks about accumulation which is also called the doctrine of accredition. Under
English law, it is allowed provided the rule against perpetuity is not violated.
80. In Thelluson v. Wooford, a need was felt to limit the law of accumulation. Thus, the
Accumulation Act of 1800 was passed to limit it. It was then repealed by the Property
Act of 1925 and the rule of accumulation was stated in S.164.
81. S.164 says that accumulation is allowed-
(a) Till the lifetime of the grantor or settler.
(b) 21 years from the termination of the life of the grantor/settler.
(c) Existence of minority.
(d) Minority not in existence. (Child in womb)

82. But, the settler can’t use all these things together and has to choose only 1. If he
chooses more, then rule against perpetuity is violated.
83. Under Indian law, S.17 states that where terms of the transfer direct that income
arising from the property would be accumulated either wholly or in part during a period
longer than the lifetime of the transferor or a period longer than 18 years from the
date of transfer, such direction shall be void to the extent to which the period directed
exceeds the period mentioned (i.e. exceeds the lifetime of the transferor or 18 years after
the transfer) and after such period, the income so accumulated would be disposed off.
84. But, there are certain exceptions to this rule, which are-
(a) Payment of debts of the transferor or anyone taking an interest under the transfer.
(b) Portions for children of transferor or anyone taking an interest under the transfer.
(c) The preservation and maintenance of property.

85. A direction which separates the income derived from the ownership of property so as
to form a separate fund or so as to postpone the beneficial enjoyment of property is a
direction for accumulation.
86. Before this section came into force, accumulation was allowed till the time it did not
offend the rule against perpetuities.
87. A direction for accumulation may be express or implied.
88. If the disposition cannot be applied without an accumulation, the section applies.
89. A direction for accumulation may also be void outside this rule under the rule against
perpetuities.
90. Incase of transfer of an absolute interest, the direction of accumulation may also be
void if it restricts enjoyment under S.11 and the exceptions to S.17 will act as exceptions
to S.11.
91. This section is however not applicable to savings derived from the income made
voluntarily by the person entitled to such income or the court for the benefit of an
infant.
92. It also doesn’t affect the discretionary powers of trustees to make accumulations
out of a minor’s income under the Indian Trusts Act.
93. If accumulation exceeds beyond the given period, the excess income accumulated
alongwith the interest would go to persons who would have been entitled to the same had
there been no direction for accumulation.
94. The direction for accumulation may come to an end due to failure of its object.
95. There is an exception to this rule with respect to debts but this exception fails to apply
if the provision is not made in good faith.
96. This section corresponds to S.117 of the Indian Succession Act.
97. This rule applies with respect to Hindu law as well. As per Hindu law, a direction for
accumulation is valid unless it is against public policy or is given for an illogical object or
its effect is inconsistent with Hindu law.
98. Difference between Indian law and English law as regards rule of accumulation-
(a) English law talks about age as it says ‘21 years from termination of life of survivor’
while Indian law talks of 18 years from the date of transfer.
(b) English law mentions about minority and unborn child. Indian law doesn’t talk about
it.
99. In Amritlal Dutt v. Surnamoyee, a direction was given that the benefits arising from
an estate would be accumulated for the benefit of the widow and then it would go to her
adopted son provided he survives her. If he doesn’t survive, then it would go to the
daughter. This direction was held to be valid.
100. Another exception where accumulation is allowed is incase of public benefit.
101. S.18 states that restrictions imposed by Ss. 14, 16 and 17 would not apply to a
transfer for public benefit. Public benefit here means for the advancement of religion,
knowledge, commerce, health, safety or any other object beneficial to mankind.
102. This is because once given for public benefit, the transfer no longer remains
commercial and it must be generally be kept intact, its use restricted to such public
benefit for an indefinite period.
103. It is similar to S.118 of the Indian Succession Act. This section was mainly
formulated to prevent deathbed gifts for charitable or religious purposes.
104. This rule is applicable to Hindus as well. But if the object of the gift is uncertain, it
cannot take effect. Muslim law also allows property to be tied up in perpetuity for
religious and charitable purposes.

1.1.5 Transfer to a Class, Doctrine of Acceleration

1.1.6 Vested and Conditional Remainders, Conditional Transfers-

1. S.19 defines a vested interest as an interest created in favour of a person, unless there is
a contrary intention-
(a) Without specifying the time within which it has to take effect or
(b) Specifying that it has to take effect forthwith or
(c) On the happening of an event which must happen.

2. It is not defeated by the death of the transferee before he obtains possession. It passes
on to his legal representatives.
3. An intention that an interest shall not be vested is not to be inferred from the
following-
(a) A provision whereby the enjoyment is postponed or
(b) Whereby a prior interest in the same property is reserved for someone else or
(c) Whereby income derived from the property is directed to be accumulated till the time
of enjoyment or
(d) From a provision that if a particular event shall happen, the interest shall pass on to
some other person.

4. Difference between vested and contingent interest-

(a) When there is a vested interest involved, the transfer is complete but when there is a
contingent interest, the transfer is dependent on a condition precedent. Thus, a vested
interest is an immediate right but a contingent interest depends on an interest.
(b) If the condition is refers to an event which is certain to occur, the interest is vested.
But, if the condition refers to an event which is uncertain, the interest is contingent.
(c) A vested interest is transferable and heritable while a contingent interest is only
heritable.
(d) Contingent interest may be converted to vested interest but not vice versa.

5. Points (a), (b) and (c) under point 3 are examples of cases wherein the interest is vested
but still not in possession.
6. The last point talks of a condition subsequent which is different from a condition
precedent. A condition precedent is a condition, the fulfillment of which is required for
interest to be vested while incase of a condition subsequent, the estate vests immediately
in the grantee and continues till the condition is broken.
7. S.119 of the Indian Succession Act corresponds to this section.
8. It has been held that the terms ‘to be paid’ or ‘payable at a certain age’ do not render a
bequest contingent. However, terms like ‘a gift at a certain age’ or ‘if and when a certain
age is attained’ or ‘upon attaining a certain age’ is contingent.
9. The rule under this section applies both to movable and immovable property.
10. A condition postponing enjoyment doesn’t prevent the vesting of interest immediately
but it is void for repugnancy after the transferee has attained majority.
11. A prior interest doesn’t postpone the vesting of a subsequent interest.
12. Another test for determining whether an interest is vested or not depends on
whether such interest passes on to the legal representatives after the death of the
grantee. If true, then it is a vested interest.
13. A conditional limitation is a provision that on the happening of a particular event, the
interest shall pass on to another person. It is different from a condition subsequent as it
divests an estate which has already vested and vests it in another person. A condition
subsequent re-vests such interest back in the grantor. S.28 deals with conditional
limitations while S.31 deals with condition subsequent.
14. A condition precedent followed by a gift over is generally construed as a conditional
limitation so as to favour the vesting of the prior estate. (Raja Lal Bahadur v. Rajendra
Narain- read pg. 208) But, at times it is construed as a condition subsequent so that the
interest dependent on it is not contingent but vested. (Read pg. 215)
15. As soon as the transfer is complete, the interest vests.
16. In a transfer, a power of appointment may be given to the transferee by which he may
confer power upon the donee of such power. This power is derived from the transferor
and not the transferee and the property vests in the donee not when the power in created
by the transferor in favour of the transferee but when the transferee exercises such power.
17. But, when an independent gift is given to a class of persons with the intention to
apportion such gift amongst such persons, the property vests as soon as such gift is
created even though the power has not been exercised.
18. When an interest is vested, it becomes the property of the transferee and he may
transfer such property even though it is not in his possession.
19. The rule under S.19 has been accepted both under Hindu and Muslim law.
20. S.20 states that when an interest is created for the benefit of an unborn person, such
person acquires a vested right in the property on his birth unless there is an intention to
the contrary (as in case of contingent interest). But, he may not be entitled to enjoyment
of such property immediately at birth.
21. This is to be read with S.13 which provides that the estate which vests in an unborn
person must be the whole remainder.
22. This is allowed under Hindu law as well.
23. S.21 defines a contingent interest. It says that where on a transfer of property, an
interest is created in favour of a person which shall take effect on the happening or not
happening of a specified uncertain event, such person acquires a contingent interest in the
property. Such interest becomes vested incase the event happens (when it is dependent
on happening of event) or when the happening of the event becomes impossible
(when it is dependent on the not happening of event).
24. Where a person becomes entitled to an interest on attaining a particular age and the
transferor gives him absolutely the income arising from such property before he attains
such age or directs that such income be used for his benefit, the interest is not contingent.
25. The specified uncertain event may even depend on the will of the transferee. For e.g.
as in case of payment of a certain sum of money.
26. S.120 of the Indian Succession Act corresponds to this section.
27. A mere spes successionis is neither a vested nor a contingent interest.
28. A contingent interest is transferable but not heritable.
29. Under the Indian Succession Act, an immediate gift of interest or gift of income
arising out of property is an exception to this section. (Read pg 216)
30. S.22 deals with transfer to members of a class, wherein the interest vests in such
members of the class who shall attain a particular age and not the others. This section
deal with a gift to a contingent class and is different from a gift to a class on a
contingency. E.g. of contingent class- gift shall be given to all such children of A who
shall attain the age of 18 years. E.g. of class on a contingency- If A’s children do not
attain 18 years of age and die beforehand, the gift shall be transferred to B’s children,
who are the class on a contingency here.
31. Until the attainment of the particular age, no person has a vested interest even when
there is a gift over.
32. For the ascertainment of the class, the object of the testator needs to be considered.
For e.g. if a gift is to A for life and then to such of B’s children who attain 18 years
of age, the class is ascertained on A’s death and no other child born after A’s death
can take the property.
33. If the gift to the children is simply to be divided amongst them once they attain the
age of 18 years, it is not a contingent interest but a vested interest, the enjoyment of
which is only postponed.
34. S.121 of the Indian Succession Act corresponds to this.
35. The exception to S.21 as provided in the succession act doesn’t apply to this section.
36. As per S.23, if on a transfer of property, an interest is to accrue to a specified person
if a specified uncertain event were to happen and no time is mentioned for the occurrence
of the event, the interest fails unless such event happens before or at the same time the
intermediate or precedent interest ceases to exist.
37. Thus it deals with cases where there is a prior interest. The contingent interest cannot
vest unless the event happens and if it happens after the prior interest ceases, then the
estate would be in suspense on sometime. Hence, it has been provided that such interest
shall cease when the prior interest ceases.
38. It corresponds to S.124 of the Indian Succession Act.
39. It has been held that S.23 of TOPA and S.124 of the Indian Succession Act ought not
apply to a gift or bequest to a contingent class.
40. This interest must also not offend the rule against perpetuity.
41. S.24 speaks about a situation where there is a transfer of property to certain persons
who shall be surviving at a certain period but the exact period is not specified. Such
interest will be transferred to those persons surviving immediately after the termination of
the intermediate or prior estate unless there is a contrary intention.
42. S.125 of the Indian Succession Act corresponds to this section.
43. If there is no prior interest involved, the period specified shall be immediately after
the death of the testator. A similar case was seen in Ellokassee Dassee v.Durponarai.
44. This section also corresponds to the English law of bequest which says that when a
legacy is bequeathed to 2 or more persons, then it shall vest in those who survive.
45. Conditions may be classified as follows-
(a) Condition precedent- A condition which must be fulfilled before the transfer.
(b) Condition subsequent- A condition which needs to be fulfilled after the transfer takes
place.
(c) Condition collateral- A condition which goes alongwith the transfer.

46. S.25 speaks about a conditional transfer. It says that if the transfer of property is
dependent on a condition, the transfer fails if such condition is impossible or forbidden
by law or if permitted would defeat the provisions of any law or is fraudulent (Derry v.
Peek-check contracts) or involves injury to the person/property of another or is
recognized as immoral by the courts or is opposed to public policy.
47. This section mainly deals with a condition precedent.
48. If a condition subsequent fails, the condition itself is void but not the transfer.
49. This section corresponds to Ss 126 and 127 of the Indian Succession Act.
50. Whether a condition is valid or not is to be gathered from its character. Less
importance must be given to the intention of the testator.
51. S.26 states that for a condition precedent to be fulfilled, it must be substantially
complied with.
52. However, if a condition is clear, it cannot be evaded.
53. This section corresponds to S.128 of the Indian Succession Act.
54. S.27 speaks about acceleration. It states that when there is an ulterior disposition
involved in the same transaction, if the prior disposition fails, the ulterior disposition
shall get accelerated or shall be operative. But, it is not necessary that the failure
should occur in a manner contemplated by the transferor, unless where the
intention of the parties is that the ulterior disposition shall take effect only when the
prior disposition fails in a particular manner.
55. This was the principle followed in the case of Avelyn v. Marel where the ulterior
disposition was said to be operative when the prior disposition failed because of the death
of the transferee in the lifetime of the testator. (Check facts)
56. Both the prior and ulterior disposition must relate to the same interest in property.
57. The section is also applicable when the prior interest is valid but fails because the
valid condition on which it rests is not fulfilled.
58. A subsequent gift where persons who are under it are ascertainable only at a
future date cannot be accelerated.
59. This corresponds to S.129 of the Indian Succession Act.
60. S. 28 mainly talks about conditional limitations. It is when in a transfer of property, a
condition may be added stating that incase an event happens or doesn’t happen, the
property shall pass on to someone else. As regards the prior interest, it is like a condition
subsequent and for the subsequent interest, it is a condition precedent.
61. This section is subject to the rules contained in Ss. 10, 12, 21, 22, 23, 24, 25 and 27.
62. It corresponds to S.131 of the Indian Succession Act.
63. It has been held that when property is transferred absolutely to someone and after that
a further interest is created in favour of someone else incase the prior interest terminates,
such further interest is void for repugnancy.
64. This section applies to Hindu law but not to Muslim law where conditional
limitations are not recognized.
65. S.29 states that an ulterior disposition of any kind as contemplated by the preceding
section cannot take effect unless the condition is strictly complied with. This means that a
condition subsequent must be strictly complied with so that it takes effect.
66. This was also held in Maitland v. Charlie. The case also laid down the rule that
whenever there is an ambiguity, the vested interest of the testator should be taken into
consideration. Infact, it has been seen that where there is an ambiguity in the condition
subsequent, it shall be read in a sense most favourable to the vested interest.
67. If however an interest has become vested, it cannot be taken away except by clear
words. This is another reason why a condition subsequent needs to be strictly complied
with.
68. Ignorance of a condition is no excuse for non-compliance.
69. This section corresponds to S.132 of the Indian Succession Act.
70. S.30 lays down that a prior disposition is not affected by the validity of the ulterior
disposition. This was seen in case of Sarju Bala v. Jyotirmoyee where the prior interest
did not fail when the ulterior interest failed due to a void condition.
71. This section corresponds to S.133 of the Indian Succession Act.
72. This section is applicable to Hindus.
73. S.31 lays down that subject to the provisions of S.12, an interest may be created with
the condition added that it shall cease to exist when a specified uncertain event shall or
shall not happen.
74. The condition referred here is a condition subsequent and not a conditional limitation
as once such condition is fulfilled, the interest shall re-vest in the grantor.
75. Since it is subject to S.12, a condition subsequent divesting an estate on the
ground of insolvency of the transferee shall be void.
76. This section applies only to a completed transfer.
77. A specific event as contemplated under this section must be specific and definite, not
wide and vague. Thus, the uncertain event must be definitely and fully set out.
78. It corresponds to S.134 of the Indian Succession Act.
79. S.32 lays down that an invalid condition subsequent cannot divest the interest to
which it is attached. (Read section)
80. A condition which is void as a condition precedent is also void as a condition
subsequent.
81. It corresponds to S.135 of the Indian Succession Act.
82. It has been held that if a condition is invalid, failure to comply with it doesn’t lead to
forfeiture.
83. S.33 states that where a condition subsequent needs to be fulfilled within some time
and such time is not fixed, the condition is broken if the transferee renders the
performance of the condition impossible permanently or for an indefinite period.
84. This corresponds to S.136 of the Indian Succession Act.
85. If the condition is broken, the interest generally stays with the testator unless it is a
conditional limitation. It is then upto the testator to decide as to whom the interest shall
go.
86. In Ronald v. Payne, the condition was broken as its performance was postponed
indefinitely.
87. However under English law, if there is a permanent impossibility, the condition is
broken but if it is postponed for an indefinite period, it just remains suspended. Under
Indian law, it is broken in both cases.
88. S.34 deals with fraud. It says that incase of a condition subsequent/conditional
limitation, if time has been specified for performance and the performance has been
delayed due to fraud caused by a person directly benefited by non-fulfillment of the
condition, such transferee would be allowed the requisite time for performance to make
up for the delay caused. But, if no time has been specified, then such condition would be
deemed to have been fulfilled.
89. It is based on 2 maxims-
(a) Mullus Commodum Capere Protested Injuria Sua Propria- No one can take advantage
of his own wrong.
(b) Raus Et Dolus Nemini Patrocinari Debent- Fraud and deceit ought not benefit any
person.

90. In Gowrin Dasee v. Krishna, it was held that the condition is deemed to have been
fulfilled when no time has been specified.
91. This section relates both to condition precedent as well as condition subsequent.
92. It corresponds to S.137 of the Indian Succession Act.
93. S.35 deals with election. It is an obligation on a person to choose from the given
alternatives.
94. It is one of the most important principles of equity and was applied in India even
before TOPA came into existence.
95. S.35 is an exception to S.7 and S.27 of SOGA which speak of a good title.
96. The section specifically lays down that where a person professes to transfer such
property which is not his own and in the same transaction creates a benefit for the
actual owner, the owner must then elect either to keep the property or the benefit. If
he relinquishes such benefit, the same reverts back to the transferor or his representatives,
provided the transfer (to the disappointed transferee) is gratuitous and the transferor has
died or become incapable of making a fresh transfer now. But, if the transfer is for
consideration, then there is a charge of making good the transferee, the value or
amount of the property transferred.
97. This rule applies whether or not the transferor believes the property to be his own.
98. A person deriving only an indirect benefit from such transfer need not elect.
99. An exception to this section is that if the owner wishes to relinquish the benefit
given, he need not relinquish another benefit under the same transaction.
100. Acceptance of the benefit by the owner confirms the transfer provided he is aware
of his duty to elect and of those circumstances which would influence a reasonable
man’s judgment in making an election OR when he waives enquiry into the
circumstances.
101. Such knowledge or waiver would be presumed if the owner has enjoyed the benefit
for 2 years without doing any act to express dissent (except incase of a contract to the
contrary) OR when he does any act which makes it impossible to place the parties to the
transfer in the same position as earlier.
102. If within a year, the owner doesn’t convey to the transferor or his
representatives whether or not he wants to elect, the latter may ask him to make an
election. If still he doesn’t comply with the same within reasonable time, he shall be
deemed to have elected to confirm the transfer.
103. Incase of any disability, election shall take place when such disability ceases or until
the election is made by a competent authority.
104. Election is based on the doctrine that no one may approbate and reprobate. This
means that a person taking the benefit of an instrument must also bear the burden.
105. It corresponds to Ss. 180-190 of the Indian Succession Act.
106. A person put to election must have a proprietary interest in the property. Thus, a
creditor cannot elect.
107. In Muhammad Afzal v. Ghulam Kasim, it was held that when 2 independent
donations are involved in the same transaction, the one which is within the power of the
transferor will stand. This is the exception to this section.
108. The doctrine applies only when some real benefit is conferred on the owner. Where
by a will a coparcener receives his part of joint family property from the testator, there is
no real benefit derived as the coparcener would have got the property anyway.
109. This doctrine cannot be used to cure an illegality. Thus, a gift which offends the rule
against perpetuity cannot be used incase of election. Further, this doctrine cannot be used
to lead to inequitable results either.
110. Under English law, there is no implied election. But, if the owner having full
knowledge of the circumstances which would influence the judgment of a reasonable
man making election decides to elect, he is bound by it.
111. S. 36 talks about apportionment which is the distribution of common funds between
2 or more persons.
112. Equity considers 2 concepts of apportionment as to distribution of a common fund
and distribution of common burden (burden to go in proportion to the benefits).
113. If the transferor gets some periodical income from the property, there must make
specific mention of the fact as to how much shall remain with the transferor and how
much shall go to the transferor and from which particular date must the same be
calculated. For e.g. A transfers his house to B on the 15th of July stating that 50% of the
rent payable by a tenant C will go to B and the other 50% shall remain with A.
114. Unless the same hasn’t been specified, the concepts of apportionment by time and
apportionment by estate come into the picture as under TOPA.
115. This section talks about apportionment by time and states that the periodical
payments shall be deemed to accrue from day to day and shall be apportioned
accordingly. It shall then be distributed between the transferor and the transferee on a
fixed date. For e.g. A sells his house to B on 15th April. C is a tenant and pays a rent of
Rs. 300. C shall pay Rs. 160 to A (rent for 16 days) and Rs 140 to B (rent for 14 days).
116. This section applies to only transfers inter vivos. But, it takes local custom and
usage into picture.
117. This section applies only to 2 parties-the transferor and transferee.
118. The concept of apportionment by time didn’t exist in English law earlier. They
believed mainly in apportionment with respect to money and not immovables as such.
Only after the Apportionment Act, 1870, they started applying this principle to
immovables.
119. S.37 talks about apportionment by estate. It states that where an estate is transferred
in such a manner that it shall be divided into several shares, both the benefit as well as the
obligation attached to the property must be borne by each sharer in proportion to the
value of their shares. Thus, it is related to distribution by common fund.
120. This section is subject to the following conditions-
(a) The person on whom the burden of obligation lies, i.e. the transferee, must be aware
of the severance. Also, if several persons want to buy the property, the transferor must
know of the severance.
(b) The obligation must be such that it may be severed.
(c) Such severance shouldn’t increase the burden of the obligation.

121. This section doesn’t apply to transfers by operation by law and agricultural tenancies
unless the state government directs the application of this section by notification in the
gazette.

1.2 Conflict of Right between parties

1.2.1 Priority of rights and notice

1.2.2 Transfer by Limited Owners

1. S.38 deals with transfers by limited owners or one who has limited power to transfer
immovable property. Such persons cannot transfer unless specific situations exist. For
e.g. the Karta of a joint Hindu family cannot transfer joint family property if the transfer
is not for the benefit of the family.
2. However, actual existence of such circumstance is not necessary. It is sufficient that
the transferee has acted in good faith and has tried to ascertain whether such
circumstance exists or not.
3. The interest of a bonafide transferee for value without notice of actual legal
necessity must be protected.
4. This section is limited in the sense that it doesn’t consider the concept of ostensible
owner as under S.41 or S.64 of the Indian Trusts Act which pertains to person purchasing
property without knowing that it is under a trust.
5. In Hanuman Prasad Pandey v. Babooee Munraj, it was held that transfer by the
manager of a minor’s estate for necessity was valid as the transferee was aware of the
circumstances and acted in good faith.
6. S.39 provides that where a third person is entitled to receive maintenance or provision
for advancement or marriage out of the income of an immovable property and such
property is transferred, the 3rd person can enforce his rights against the transferee subject
to the following conditions-
(a) The transfer is with consideration and the transferee has notice of such right OR
(b) The transfer is gratuitous and the transferee may or may not have notice of the
rights of the 3rd person.

7. If any of these 2 conditions are satisfied, it is not necessary to prove that the transfer
was made to defeat the interest of the transferee. (This line was removed after the 1929
amendment)
8. The right of maintenance has been defined under S.125 of the Cr. PC and is made
available to spouses, parents, children, etc.
9. Provision for advancement mainly pertains to ostensible owners or transfers in the
name of near relations. In these cases there is a presumption of gift in favour of such
persons.
10. However, such right cannot be claimed against any other property in the transferee’s
hands.
11. In Harilal v. Balwanti and ors. , it was held that where a wife was entitled to
maintenance from property and the property was sold for consideration with notice to the
transferee, the wife is entitled to maintenance from such property.
12. An exception to this section may be found in the Hindu Succession Act where family
property may be transferred to pay family debts. Here, such rights won’t exist.
13. S.40 deals with restrictive covenants. Restrictive covenants are contracts which
restrict the use or enjoyment of property. They are imposed by the transferor on the
transferee.
14. S.11 invalidates such conditions. But, this section deals with both affirmative as well
as negative covenants. Affirmative covenants are those which require something to be
done by the transferee while a negative covenant requires something not to be done by
the transferee. It however doesn’t deal with enforcement of covenant against subsequent
transferees.
15. S. 40 on the other hand deals with negative covenants only and also provides for
its enforcement against subsequent transferees.
16. S.40 provides that a restrictive covenant is binding and enforceable even against the
assignees of the transferee provided that-
(a) It is for the beneficial enjoyment of the transferor’s own land.
(b) The subsequent transfer is for value and the assignee or subsequent transferee has
notice of the covenant. OR
(c) Where the subsequent transfer is without consideration.

17. These restrictive covenants are attached to the land and run along with such
land.
18. It will bind any person who has the land except incase of a transferee without notice.
This was held in Tulk v. Moxhay. (Read case-v. imp)
19. This section also provides for a situation wherein a third person is entitled to the
benefit of an obligation arising out of contract and annexed to the immovable property. In
such case, the rights of the 3rd person are enforceable against a transferee for value with
notice or a gratuitous transferee. The contract (of the 3rd party) here may be a contract for
sale which doesn’t create any interest in land as such but creates a personal obligation of
fiduciary nature. It may be enforced not only against the seller but also the purchaser for
consideration with notice.
20. But, it doesn’t apply to a mere personal obligation to pay the third party money
arising out of a contract. It creates only an equitable title in land on the holder of the
contract relating to the transfer of land.
21. Also, a contract creating a right of pre-emption would create an obligation on a
purchaser for value with notice or a gratuitous transferee.
22. Such restrictive covenants are binding only when there is a notice to the purchaser is
he is a purchaser for value. Such notice may be actual or constructive. But, if he is a
gratuitous transferee, no notice is required.
23. In Rogers v. Mosegood, it was held that a covenant ran along with the land and was
binding on the successors as well.
24. In Austerberry v. Corporation of Oldham, it was held that the covenant was not
binding even though it was annexed to land. (Erroneous judgment, Read facts for details)
25. In KR Iyengar v. TL Shetty, it was held that the purchaser cannot claim that a
mortgage attached with the property is not binding on him saying that it was registered
later on. Before entering into any transfer, he should have taken into account and looked
into liabilities attached with the property.
26. Under English law, contractual obligations cannot be assigned as they are personal to
the parties. However, there are 2 exceptions to this-
(a) Certain covenants between landlord and tenant may be assigned.
(b) Covenants which touch and concern the land may be assigned. Restrictive covenants
for the benefit of the adjoining land are thus allowed.

1.2.3 Ostensible Ownership

1. S.41 deals with transfer by an ostensible owner. This is now subject to the Benami
Transactions Act, 1988.
2. S.2 (a) of the Benami Transactions act defines a benami transaction as a transfer
of property to one person consideration for which is provided by another. The
person in whose name the property is held shall be the new owner.
3. Such ostensible owner or benamidar in whose name the property is taken has now
become the real owner exception being made incase of a coparcener in a Hindu
undivided family or a trustee standing in a fiduciary capacity.
4. This act not only prohibits such Benami transactions but also punishes a person
entering into such transaction in the name of another with 3 years imprisonment or a fine
or both. However, a person may purchase property in the name of his wife or
unmarried daughter for their benefit.
5. The act however is not retrospective in nature. However, a real owner cannot use S.41
of TOPA as a defence to his title for transactions after the commencement of this act.
6. The act seeks to destroy the rights of real owners with respect to properties held
benami. It has taken away the right of the real owner both for filing a suit as well as
taking a defence in a suit filed by a benamidar.
7. Exceptions have been made only with respect to the Karta of a joint family and a
trustee who hold property in fiduciary relationship with the beneficiaries of such
property. Another exception is for the benefit of the person’s wife or unmarried
daughter.
8. In Nand Kishore Mehra v. Sushila Mehta, it was held that where a person purchases
property in the name of the wife or unmarried daughter, he can lay claim to the property
later if he proves that it was not for their benefit.
9. Under S.41 of TOPA, it has been provided that where with the consent of persons
interested in immovable property, an ostensible owner transfers the same for
consideration, such transfer shall not be voidable on the ground that the transferor was
not authorized to make it, provided that the transferee took reasonable care to
ascertain that the transferor was entitled to transfer and acted in good faith.
10. An ostensible owner is a person who has all the characteristics of a real owner but is
not the real owner. He may have possession and enjoyment of property and may also
have his name entered into the official records.
11. Such a situation arises incase of a benami transaction where property is purchased in
the name of a benamidar.
12. A person however doesn’t become an ostensible owner when the real owner
entrusts him with temporary control over the property only for some specific
purpose or when he holds property as a professed agent or as a guardian of a
minor’s property or in any other fiduciary relationship.
13. In Jayadayal Poddar v. Bibi Hazra, the SC laid down the following guidelines to
differentiate between a real and an ostensible owner-
(a) Sources of the purchase money-Who paid the price?
(b) Nature of possession after purchase- Who had possession?
(c) Motive of giving benami colour to the transaction-Why was the property purchased in
someone else’s name?
(d) Relationship between the parties-Whether the real and ostensible owner were related
or were strangers?
(e) Conduct of the parties in dealing with the property-Who used to take care of and who
had control over the property?
(f) Custody of the title deeds.

14. The burden of proof that the transaction is benami lies on the person who tries to
prove that he is the real owner.
15. In Anando Mohan v. Nilpharmani, it was held that the wife was the real owner as she
held the title deeds and took care of the property.
16. There are 2 doctrines in this section, namely-
(a) Doctrine of holding out- Ostensible owner holding out property as the real owner.
(check)
(b) Doctrine of estoppel- Under circumstances laid down in this section, transfer is
binding on the real owner and he is estopped from denying the transfer on the ground that
transfer was by an unauthorized person.

16. Thus, this section provides a remedy to a bonafide transferee for value. This
section is an exception to the general rule that no person can confer a better title to
another than what he has.
17. The essential conditions of this section are-
(a) Transfer of immovable property by ostensible owner with express or implied consent
of the real owner- Such consent must be free consent. Silence may also amount to
implied consent if the real owner was aware of his rights under the transfer.
(b) The transfer is for consideration.
(c) The transferee has acted in good faith.
(d) The transferee has exercised reasonable care in finding out about the transferor’s
power to make such transfer.

18. In Ramcoomar Koondoo v. Macqueen, it was held that even though Alexander was
the real owner and Bunnoo Bibi was only an ostensible owner, since Alexander had
allowed her to hold herself out as the real owner of the property thereby giving implied
consent, he or his representatives couldn’t recover upon their secret title unless they
proved that the purchaser had notice of such title.
19. In Mahinder Singh v. Pardamann Singh, it was held that the burden lies on the person
who asserts that there is an ostensible owner. This judgment was also followed in
Gurbaksh Singh v. Nikha Singh. It was also held in this case that the transferee cannot
seek protection under S.41 if he hadn’t acted in good faith.
20. The real owner is however not precluded from denying a gift made by an ostensible
owner as it is gratuitous.
21. Also, the transferee must act in good faith. Where the transferee is aware that the
transferor is merely an apparent owner, he doesn’t act in good faith. In the absence of
good faith, the court may presume collusion between the ostensible owner and the
transferee.
22. As regards reasonable care, it means the amount of care which is generally taken by a
prudent man. It must be diligent and not casual.
23. This section affords protection to subsequent transferees as well who have acted in
good faith, have taken reasonable care to enquire into the powers of the transferor to
transfer and have paid consideration.
24. S.42 deals with transfer by a person reserving a right to revoke the transfer as incase
of a lessor. Such person may revoke the first transfer and subsequently transfer the
property to another person for consideration (thereby revoking the first transfer). The
power of revocation however must be permitted in law. The first transfer may or may
not be for consideration but the second transfer must be for consideration.
25. However, where the first transfer is a gift and may be revoked by the donor, it is
rendered void by S.126 of the Act.
1.2.4 Ownership by Estoppel, Lis Pendens
1.2.5 Meaning of Pendency-Conditions for the rule to apply

1. S.43 talks about transfer by an unauthorized person who subsequently gets a title over
the property.
2. The section specifically provides that when a person who had no authority to transfer
professes to transfer property, he is estopped from denying such transfer when he
subsequently acquires such authority.
3. This section is based on 2 principles namely-
(a) The principle of estoppel by deed.
(b) The equitable principle that if a person promises more than he can perform, then he
must fulfill the promise when he gets the ability to do so. (Equity regards that as being
done what ought to be done)

4. The law laid down in this section is the English law of feeding the estoppel by grant. In
such situations, the estoppel of the unauthorized transferor is feeded (strengthened) by his
own commitment or creation of interest (which was done earlier without lawful
authority).
5. Essential conditions of this section are-
(a) The transferor is an unauthorized person.
(b) There is fraudulent or erroneous representation by the transferor regarding his right to
transfer. – There must be oral or written misrepresentation. It may also be in the form of
silence or inactivity of the transferor. The misrepresentation must be with respect to the
transferor’s authority to transfer and not other things.
(c) The transfer is for consideration. – It doesn’t apply to gifts as they are gratuitous
transfers. Also, it doesn’t apply to a charge as there is no transfer of interest in
immovable property.
(d) The transferor subsequently acquires authority to transfer. – This may be acquired
inter vivos or by the operation of law. It is also applicable where the person had lesser
interest in the property and such interest was subsequently enlarged as in case of a widow
whose right of alienation was previously curtailed. However, this section is not applicable
to involuntary transfers like auction sales by the court’s order.

6. The section is not applicable in the following cases-

(a) Transfers without consideration
(b) Transfers against public policy
(c) Involuntary transfers
(d) Transfers forbidden by law- E.g.-transfer by a minor.

7. The transferee must in good faith believe such transferor. The transferee however is
under no obligation to have made reasonable enquiry about the transferor’s title. The
mere fact that he acted on the transferor’s representation is sufficient.
8. The transfer of subsequently acquired property takes place not when the interest is
acquired by the transferee but when the transferee exercises his option and claims that the
property must be transferred to him.
9. This transferee is open only during the subsistence of the contract. If the transferee
repudiates the contract before the unauthorized transferee acquires authority to transfer,
his option is extinguished.
10. Also, a second transferee who acts in good faith has paid consideration and without
notice of the option takes the property before the option is exercised by the original
transferee will get the property. Here, the first transferee won’t get the property in such
circumstances.
11. In Jumma Masjid v. Kodimaniandra, it was held by the SC that there is no conflict
between S.43 and S. 6(a) which prohibits transfer of spes successionis. The court held
that both these sections were distinct and could operate independently, S.6(a) being a rule
of substantive law and S.43 a rule of evidence/procedure. If the transferee had no
knowledge of the Spes successionis, S.43 would apply.
12. Also, there is a distinction between Ss. 41 and 43 even though both are based on the
principle of estoppel and both talk about transfers made by persons who have no
authority to do so. They are different on the following grounds-
(a) In S.41 the transfer of property is complete though it is not by the real owner.
Whereas in S.43, the transferor merely professes to transfer and there is no actual
transfer.
(b) As per S.41, the transferee must conduct reasonable enquiries to ascertain whether the
transferor actually had the required title or not. Under S.43, such enquiry is not
necessary. The transferee merely needs to show that he was misled due to the
misrepresentation of the transferor.
(c) Under S.41, estoppel works against the real owner while under S.43, estoppel works
against the unauthorized owner.

13. Also, there is a difference between English law and Indian law on this point-
(a) Under English law, an equitable estate is created on acquisition. Under Indian law, no
equitable estate is created but it gives right to an obligation. (Check)
(b) Under English law, when the transfer subsequently acquires title, the estate passes on
without any further act of the transferee. But, in Indian law, the transferee has to exercise
an option for the same.

14. In Rajpakshi v. Fernando, it was held that where a grantor had purported to grant an
interest in land which he did not at the time possess but subsequently obtained, the
benefit of his subsequent acquisition goes automatically to the earlier grantee and thus
feeds the estoppel.
15. In Hardev Singh v. Gurmail Singh, it was held that the subsequent transferee would
get the property under S.43 as the transferor fraudulently transferred the same even
though the transferor’s wife became the absolute owner later on. (Read facts)
16. S.44 talks of transfer by a co-owner.
17. Co-owners may have equal or unequal shares but as incase of a joint family they
enjoy the property in common unless there has been a partition. If one such co-owner
transfers his jointly owned property to another, such person gets the same right as the co-
owner. He now enjoys the property jointly with the other co-owners and has the same
rights and liabilities as the transferor had. Just as the co-owner, the transferee also has the
right to ask for partition.
18. However, an exception is made incase of a dwelling house. Unless partition has taken
place or the subsequent transferee asks for partition, the other co-owners may restrict the
transferee on entering upon the dwelling house. This exception was also discussed in
Dorab Cowasji Warden v. Coomi Sorab Warden.
19. This right of the co-owner is however subject to the right of pre-emption of the other
family members under S.4 of the Partition Act.
19. This section includes all types of transfers like mortgages, leases, etc.
20. S.45 deals with the quantum of interest of each transferee when immovable property
is transferred for consideration for value jointly to 2 or more persons without specifying
their respective shares.
21. The section lays down that when the consideration is paid by the transferees from a
common fund, their interest in the property shall be according to their interest in the
common fund. But, where the consideration is paid by the transferees separately, their
interest in the property is in proportion to the amount they have separately paid.
22. However, the rules under this section are subject to any contract to the contrary.
23. Also, even if the transfer is in the name of only one of the co-owners, it doesn’t imply
that he is the sole owner of such property.
24. The section also provides that where there is no evidence to show as to what amount
of the considered has been advanced by each of the transferees, they will be deemed to
have equal interest in the property.
25. This section also doesn’t say whether the several transferees hold the property as joint
tenants or as tenants in common.
26. The difference between joint tenancy and tenancy in common is as follows-
(a) Joint tenancy implies unity in title as well as possession. Whereas, tenancy in
common implies unity of possession only.
(b) Where co-owners hold the property as joint tenants, on the death of any of the co-
owners, his share goes to the survivors (earlier rule of survivorship). But, where the co-
owners hold the property as tenants in common, on the death of any one of them, his
share passes on to his heirs. (Rule of succession)

27. In India, where transfer is made to 2 or more persons jointly, they are deemed to be
tenants in common.
28. Joint tenancy may be converted into tenancy in common by mutual agreement,
disposal of shares or by selling of share to another.
29. This section may also be made applicable to transfers by operation of law or
involuntary transfers on the ground of equity, justice and good conscience. (Check)
30. S.46 deals with a situation where an immovable property is transferred for
consideration by 2 or more persons having distinct interest therein. In the absence of a
contract to the contrary, the transferor shall be entitled to share in the consideration
proportionately to the value of their interests in the property.
31. They need not be co-owners. They must just have distinct interests in the property
which may be equal or unequal.
32. S.47 deals with transfer of a share by co-owners from their property without
specifying from which of the several shares of the common property, the transfer has
been made. This section thus deals only with such cases where a share or part of co-
owned property is transferred.
33. In such a situation, the share of each co-owner is reduced proportionately. Where the
co-owners hold the shares equally, each share is reduced equally. Where the shares of co-
owners are unequal, the reduction in the greater share will be greater and lessor in the
smaller share.
34. S.48 states that the owner of a property is free to transfer any kind of interest in
property. He may transfer partial interest to one person and absolute interest of the same
property to another person. Whenever such transfers are made, the ultimate transferee
takes the property subject to the prior interests.
35. To deal with cases where same interest in the property is transferred to 2 or more
persons, the rule of priority is applied. This is based on the maxim ‘qui prior est tempore
potior est jure’ which means that first in time is better in law. Thus, if there are
successive transfers of the same property, the later transfer is subject to the former.
36. However, the rule in this section is subject to any contract to the contrary.
37. This section deals only with situations wherein the subsequent interests are equal and
conflicting.
38. It is necessary that the transfers must have taken place on different dates or one must
have preceded the other. Where transfers are made through registered deeds, the date of
execution and not the date of registration is to be considered. There can be no question of
priority if it cannot be known as to which transfer came earlier. In such a case, the
transferees will take the property as joint tenants or tenants in common.
39. The exceptions to this rule are-
(a) Where the instrument of transfer is executed by fraud, misrepresentation or gross
negligence, the transferee cannot claim priority. (Ss. 78, 79)
(b) As per S.50, a deed must be registered and if the subsequent transferee registers first,
he gets priority.
(c) In a suit for partition if a receiver under the Court’s orders mortgages whole or part of
the estate, the mortgagee would get priority over a creditor by whom the property was
attached after the commencement of the suit for partition.
(d) The lieu of a sharer for owelty money on partition. (Check)
(e) Government debts
(f) Salvage Charges- e.g. When the property is insured against fire, etc., the premium is a
salvage charge. If such property is sold, the salvage charges will have priority.

40. S.49 deals with the rights of a transferee when the property transferred to him is
insured against loss or damage by fire. If there has been a transfer for consideration and
there is no contract to the contrary, the transferee may ask the transferor to apply the
money received under the insurance policy to reinstate the property incase there is any
damage by fire. However, the purchaser cannot directly approach the insurer.
41. This rule has been mentioned in the dissenting judgment of Rayner v. Preston.
42. S.50 protects the interest of a tenant who makes bonafide payment of rent to a person
who has a defective title in the property. Thereafter, such transferee will not be required
to pay the rightful owner the same rent. However, the rightful owner may get the same
back from the one who received the money under a defective title.
43. If the lessee has actual or constructive notice of defective title, he is not protected
under this section.
44. However this section doesn’t apply to rents paid in advance. Where tenants pay rents
in advance, it is treated as a loan advanced by him to the landlord.
45. Also, the protection under this section doesn’t apply when the suit is pending in court.
46. S.51 gives relief to a transferee who makes improvements in good faith on the land
held by him and is evicted subsequently by a person who holds a better title. Such a
transferee has now the right to either get the value of the improvements done by him or to
purchase the property on which improvements have been made.
47. The person evicting must be estopped from denying compensation to the bonafide
transferee because his own acquiescence was responsible for such improvements. (S.51 is
however different from estoppel by acquiescence as estoppel looks at the conduct of the
evictor and S.51 looks at the person evicted. Also, S.51 is covered by equity but not
estoppel by acquiescence. –Read notes to clarify) It is thus based on the principle that he
who seeks equity must do equity.
48. This section pertains only to absolute transfers. A lessee, mortgagee and trespasser
cannot be given the benefits of this section.
49. Improvements here mean something which increases the value of the property and not
minor changes. Both temporary and permanent improvements are to be considered.
50. In the following cases, transferees have been given the benefit of this section- (add
more from notes if required)
(a) Where the transferee who purchased a property was given possession of larger area
than he was entitled under the deed and who made improvements on excess land under a
mistaken belief that he was entitled to do so.
(b) Where the transferee has purchased a life estate believing that the vendor was
absolutely entitled to sell the property.
(c) Where the transferee had purchased a minor’s property from a de facto guardian
believing that the guardian was authorized to sell such property.

51. The belief of the transferee here may be mistaken belief or may even be negligent, but
it must not be with dishonest intention.
52. Exercise of reasonable inquiry is also not necessary. Bonafide intention is sufficient.
The onus of proving such good faith lies on the transferee.
53. Where the bonafide transferee has sown crops in the land, he is entitled to have such
crops and will also have the right to go to the property and remove the crops.
54. Also, the transferee cannot compel the evictor to either pay him the value of
improvements or to let him purchase the property. The option is entirely the evictor’s.
55. If the transferee asks for compensation, then the market value of the property as on
the date of eviction (and not on the date when the transferee decides to exercise such
option) will be awarded irrespective of the amount the transferee invested in making such
improvements, though the same will be considered.
56. S.52 deals with the doctrine of lis pendens. Lis means litigation and pendens means
pending. It is based on the maxim pendente lite nihil innovature which means that during
pendency of litigation, nothing new shall be introduced. This section is however not
applicable to the state of Jammu and Kashmir.
57. Also, it was amended by the 1929 amendment. The term ‘active prosecution’ was
replaced by the term ‘pending’ and the terms ‘contentious suit or proceedings’ were
replaced by the terms ‘any suit or proceedings which is not collusive’.
58. Thus, this section prohibits creation of new interest in property by transfer of property
during the pendency of any suit regarding such property.
59. This section is based on notice as pendency of the suit in court is constructive notice
of the fact of disputed title of the property under litigation.
60. It is also based on necessity wherein for administration of justice, it is necessary that
the parties do not take a decision themselves and transfer the property. This is a view
taken by the Indian courts who do not consider it as being a rule of notice.
61. Under English law, it is covered under the Lis Pendens Act, 1867 and Land Charges
Act, 1925.
62. This doctrine thus intends to strike at attempts by parties to a suit to curtail the
jurisdiction of the court by private dealings which may remove the subject matter of
litigation from the power of the court.
63. The transferee is bound by the decision of the court even if he had no notice of
the pending suit.
64. The essential conditions for application of this section are-
(a) There is pendency of a suit or proceeding.
(b) The suit or proceeding must be pending in a court of competent jurisdiction.
(c) A right to immovable property is directly and specifically involved in the suit.
(d) The suit or proceeding must not be collusive.
(e) The property in dispute must be transferred or otherwise dealt with by any party to the
suit.
(f) The transfer must affect the rights of the other party to the litigation.

65. If the abovementioned conditions are satisfied, the transferee is bound by the court’s
decision. If such decision is in favour of the transferor, the transferee gets a right in the
property. But, if such decision is against the transferor, the transferee gets no rights.
66. The pendency of suit begins from the date when the plaint is presented and
terminates on the date when final decree is passed.
67. Pendency starts only if the plaint is accepted by the court. If the plaint is rejected by
the court for lack of jurisdiction or otherwise and the plaintiff presents the plaint before
any other court which accepts it, pendency begins from the date when such other court
accepts the plaint. The property may be transferred in the meantime.
68. The suit is pending in court till a final decree is passed unless execution of the decree
becomes time barred. After the final decree, a party has a right to appeal within the period
of limitation. Such period of appeal shall be deemed to be a continuation of the suit and
lis shall continue.
69. This section must be interpreted strictly.
70. A sale deed executed before proceedings start and registered later will not be affected
by this section as the deed operates from the date of its execution.
71. Suit and proceeding are taken to have the same meaning for the purposes of this
section.
72. The doctrine of lis pendens is also applicable when the pending litigation is ultimately
compromised and a compromise decree is passed. However, the compromise must be
during the pendency of the suit.
73. Also, lis pendens doesn’t apply when the suit is pending in a court which doesn’t
have the required jurisdiction. But, as regards pecuniary jurisdiction, if the suit is filed in
a higher court while it must have been filed in a lower court, there is no lack of
jurisdiction.
74. The litigation must be with respect to title or interest in immovable property. Mere
mention of immovable property in the plaint is not sufficient. Rights in respect of
immovable property must be directly and substantially in question.
75. Examples of such suits include a suit for partition, a suit on mortgage, a suit for pre-
emption, easement suit, etc.
76. Examples of cases where this section doesn’t apply are suit for debt or damages
where the claim is limited to money, a suit for recovery of movables, suit for recovery of
rents, etc. It also doesn’t apply to cases regarding rights in movables.
77. The suit must also not be collusive or must not have been instituted with some
malafide intention.
78. The property involved must then be transferred or otherwise dealt with by one of the
parties. Transfer includes sale, lease, mortgage, etc. The term ‘otherwise dealt with’ has
been taken to mean those transactions in which although there is transfer of some interest
in the property they do not strictly come within the meaning of transfer like partition,
surrender, etc.
79. The transfer may also be by operation of law or by involuntary transfers.
80. Where however a transfer is made with the permission of the court during pendency
of suit, the principle of lis pendens is not applicable.
81. Transfer of property by a person whose title is not in any way connected with the
disputed property is not affected by lis pendens. It also doesn’t apply to a transfer made
pending the suit by a person not party to the suit when the transfer was made.
82. Such transfer must also necessarily affect the other party to the suit.
83. It may be seen that normally a decree of the court binds the parties to the suit but
here the court’s decision binds the one who purchases the property as well.
84. Lis pendens doesn’t prevent vesting of title in the transferee but only makes it
subject to the rights of the parties to the suit.
85. This principle was upheld in Bellamy v. Sabine (cancellation of sale), Faiyaz Hussain
Khan v. Parag Narain (2nd mortgagee in collusion with mortgagor) and Parasmal v.
Sobhag Devi (woman transferring son’s property) (Read cases from notes)
86. S.53 talks about fraudulent transfers. Where a transfer is made with fraudulent
intention, the object of the transfer would be bad in equity but it may still be valid in law
and hence such transfers are not void. But, equity would render them voidable at the
option of the innocent party.
87. This section specifically provides that where a transfer is made with intent to delay or
defeat the interest of a creditor of the transferor, the transfer shall be voidable at the
option of such creditor. Also, a gratuitous transfer with intent to defraud a subsequent
transferee will be voidable at the option of such transferee.
88. However, the provisions of this section shall not affect the rights of a transferee in
good faith for consideration and any law at the time being in force relating to insolvency.
89. This section doesn’t apply when the transfer itself is void. It must be a valid transfer
but with a fraudulent intention.
90. It is applicable only to transfers as contemplated under S.5 of this act and doesn’t
apply to cases of relinquishment, etc.
91. Partition being a family settlement is not transfer as required by this section.
However, this section might come into the picture when the partition has been made with
the intention to defraud the creditors.
92. Fictitious or benami transactions are not included within the ambit of this section.
However, in certain cases where it is established that the very object of such transaction
is to defeat the interest of creditors, S.53 will be applicable.
93. This section applies only to immovable property.
94. Examples of a few circumstances which may show that the transfer was fraudulent-
(a) The transfer was made secretly and in haste.
(b) The transfer was made soon after the decree was passed against the judgment debtor.
(c) The consideration was a very small amount in comparison to the property transferred.

95. If however there are several creditors, transfer in favour of any one of them doesn’t
amount to an intention to delay or defeat the interests of the remaining creditors.
96. Creditors include not only such person who have already obtained a decree from the
court but also such persons who have a claim which is yet to be established by the court.
97. Unpaid dower has been regarded as a debt and till the same is paid, the wife is
regarded as a creditor of her husband. Same goes for a deserted Hindu wife in her claim
for maintenance.
98. Under this section, only the creditors and not the transferor and transferee have a right
to avoid the fraudulent transfer. But, he may chose to not do the same as well.
99. The suit is instituted by one creditor on behalf of the rest so that the debtor doesn’t
have to face multiple suits.
100. Creditors may also protect their interest by attaching the property.
101. The burden lies on the creditors to prove that the transfer was done to delay or defeat
their interest. Once proved, the debtor must prove that he had no fraudulent intention.
102. Where however the transferee has no notice of the existence of such creditors, the
creditors cannot avoid the transfer even if it is proved to be fraudulent. Thus, the right of
a bonafide transferee for consideration has been protected.
103. However, no presumption of fraud may be made on the ground that consideration is
inadequate.
104. Read rights created under insolvency laws.
105. The second part of this section talks of a situation where a subsequent transferee is
defrauded or delayed. It protects a bonafide transferee for consideration from a fraudulent
gratuitous transfer made earlier. However, fraud must be fully established.
106. A subsequent transferee doesn’t include a purchaser of court sales whether he is a
third party or a decree holder himself.
107. This section was simplified after the 1929 amendment.
108. This rule is also covered by S.173 (2) of the English Law of Property Act, 1925.
109. In Palamalai Mudaliar v. South Indian Export Co., it was held that the transferee
would be liable as he didn’t act in good faith. (Read facts)
110. In Musahar Sahu v. Lal Hakim Lal, it was held that transfer of property by a debtor
in favour of one creditor in preference of the other is not a fraudulent transfer. (Read
facts)
111. In RR Chettiyar Firm v. Ma Sein Yin, it was held that as there was no proof whether
the property had been sold for consideration or not, the transfer would be fraudulent.
(Read facts)

1.3 Doctrine of Part Performance

1.3.1 English law and conditions

1.3.2 Indian law before the amendment
1.3.3 S. 53A, Summary of the present law

1. It is an equitable doctrine and is also known as the equity of part performance.

2. As per this doctrine, if anyone has taken possession of an immovable property on the
basis of a contract of sale and has either performed or is willing to perform his part of the
contract, then he would not be ejected from the property on the ground that the sale was
unregistered and legal title has not been transferred to him.
3. It is thus based on the equitable doctrine that equity looks at that as done which ought
to have been done.
4. Under S.4 of the Statute of Frauds, 1677, transfer of immovable property on the basis
of oral agreement was illegal and the transferee couldn’t get title in the land. However,
later on equity protected rights of such transferees under the doctrine of part performance
by saying that those transferees who held land on the basis of oral contracts and had
performed their part of the contract would be protected under this doctrine.
5. This doctrine was elaborated upon and put into the Statute of Frauds, 1677 by the case
of Maddison v. Alderson. In this case the document was regarded as being valid as it was
in writing. This is against the Indian Registration Act which requires every document to
be registered under the Act.
6. This section was put into TOPA after the 1929 amendment. Earlier, only English
equitable principles were followed.
7. Before 1929, the rule was neither certain nor uniform. In Mohammed Musa v. Aghore
Kumar Ganguli, it was held that equity of part performance may be applied to Indian
cases in the same way as they are applied in English cases. (as stated by J. Shaw)
8. In Ariff v. Jadunath, it was held that doctrine of part performance couldn’t be applied
in India to over-ride or by-pass the express provisions of the Indian Registration Act and
the TOPA.
9. In Mian Pir Baux v. Mohammed Tahir, it has been held that English equity of part
performance is not available in India against express statutory provisions regarding
registration. This was also held in Kurri Vera Reddi v. Kurri Sappi Reddi.
10. The law contained in S.53-A is almost similar to what was held in Mohammed
Musa’s case. However, it is more limited than English equity in the sense that it
provides protection only when the agreement is written and English equity gives a
right of action against the evictor which the Indian law doesn’t. Thus, in English law
it is used both in an active and passive manner (both as a plaint and a defence) but in
Indian law it may be used only in a passive manner as a defence.
11. However, the defence of part performance under this section is available even incase
of non-registration. But, the section must be read with Ss. 17 and 49 of the registration
act. S.17-A of the recently amended registration act requires documents to be
registered for the purpose of S.53-A of TOPA. Thus, all documents are now
compulsorily registrable so that protection may be availed of under S.53-A after 24th
September, 2001. Only such documents may be used as evidence of part performance.
12. Previously a person would be protected under this section even if the deed wasn’t
registered or where the transfer is not as per law. But, the coming in of S.17-A of the
registration act has made this provision almost redundant.
13. Under this section, a transferee can only defend his possession. He can neither claim
title over the property nor take any action with respect to the same.
14. Also, the section protects the rights of a transferee for consideration who didn’t
have notice of the fact of rights of part performance of any person.
15. The essential conditions under this section are-
(a) There is a contract for transfer of immovable property.
(b) The transferee takes possession of the property under this contract.
(c) The transferee has performed either his part of the contract or is willing to perform the
same.

16. When these conditions are fulfilled, the transferee can continue to defend his
possession over the property.
17. The contract must be written and duly executed. Also, such contract must clearly
suggest the transfer of property. If the document is ambiguous or confusing, the section
cannot be made applicable. The agreement must also be perfect and genuine in all
respects including registration now.
18. There must be a transfer for consideration. Also, the transfer must be within S.5 and
thus must not be a compromise, a family settlement, etc.
19. The section doesn’t apply to movable property.
20. The transferee must have either taken possession of the property or continues
possession in part performance of the contract or has done something in furtherance of
the contract.
21. He must have taken possession of the property and it is irrelevant whether the
transferor has given him possession or not. It is also sufficient that he continues
possession even in a part of the property.
22. The possession must be taken only on the basis of the contract or deed of transfer and
thus must be in furtherance or in part performance of such contract. Mere continuance is
thus not sufficient.
23. If the transferee has taken possession and subsequently he loses the same, he cannot
be denied his rights under this section.
24. The plea of adverse possession and retaining possession under S.53-A are
inconsistent with each other.
25. If the transferee is in possession of the property, he must do some further act in
part performance of the contract. Such act must be connected with the contract in
some way or the other.
26. When one claims protection under this section, his actions must be just as well in the
sense that the transferee must be willing to perform his part of the contract. Such
willingness must be absolute and unconditional. Such willingness may be inferred from
his conduct.
27. In Nathulal v. Phulchand, the court held that if a party is willing to pay, time and
money wouldn’t be factors and S.53-A would protect such transferee.
28. Willingness of the transferee to perform his part of the promise must subsist till the
final decision of the court.
29. The rights of a transferee under this section are as follows-
(a) This section doesn’t give any title or interest in property to the transferee. It only
states that if the required conditions are fulfilled, the transferee may not be evicted. If
there is any eviction, the transferee may plead defence under this section. He gets title to
property only if there is registration. The section however doesn’t affect the ownership
rights of the transferor.
(b) This section only provides a right of defence to the transferee and not a right of
action. Thus, in India this doctrine may only be used as a shield and not a sword.

30. However, the transferee cannot avail of any rights which he may have against the
transferor against any bonafide transferee for value without notice. The burden of proving
that the subsequent transferee had notice lies on the one seeking protection under this
section.
31. If the prior transferee has neither shown any willingness to perform his part of the
contract nor was anxious to do so by possession, the subsequent transferee cannot be said
to have any notice of the previous contract.
32. Walsh v. Landsdale (Read facts) laid down the following principles-
(a) He who seeks equity must do equity.
(b) Equity looks at intent rather than form.
(c) Equity looks at that as done which ought to have done.

UNIT II-Mortgages and Leases

2.1 Mortgages, General Characteristics and requisites

2.1.1 KINDS OF MORTGAGES IN INDIA

SECTION 58:
Meaning of mortgage:
1. Loans may be secured or unsecured
2. Promissory note: where money is given on the basis of debtor’s promise to pay,
creditor can file suit for recovery of this money. But if debtor has no money to
pay then cannot be repaid to the creditor. Hence, unsecured debt
3. When debt is secured with a movable property it is called a pledge
4. Where debt is secured against any immovable property by the debt it is called
mortgage
5. Where a person takes a loan and specifies certain immovable property as security,
it is called loan by mortgaging his property
 6. In English law, mortgage created a legal estate in favour of the creditor. If debt
not paid in stipulated time period then creditor got right on the property absolutely
and debtor loses all the rights over such property
7. In Indian law, mortgage law developed on the basis that
i) Mortgage was regarded as essentially a transaction for taking loan and not
a transaction for transfer of title of property.
ii) Any condition which is used to take away the mortgagor’s right in his
property was void as being a penalty for him.

Definition of Mortgage:
1. Section 58(a) defines mortgage
2. It is defined as a transfer of an interest in some immovable property
3. Not an absolute transfer of interest
4. Purpose of transfer is to give security for repayment of loan
5. Therefore, legal effect of a mortgage is the transfer of an interest in the property
for consideration of money
6. In case of non-payment creditor can recover his money from the interest created
7. The person who takes the loan, transfers his interest in the immovable property is
called a mortgagor
8. The person who gives the loan, in whose favour the transfer is made is called a
morgagee
9. Sum of money taken under the mortgage is called mortgage money
10. The instrument or deed of such mortgage is called a mortgage deed
11. Essentials of the mortgage:
i) There must be a transfer of interest
ii) Interest must be of some specific immovable property
iii) The transfer must be to secure payment of any debt or performance of an
engagement which may give rise to a pecuniary liability
12. Transfer of interest:
i) There is no transfer of absolute interest or ownership
ii) Interest transferred in favour of the mortgagee
iii) Interest can be used to recover the money in case of non-payment of debt
iv) There still remains a vested interest with the mortgagor
v) An agreement of mortgage does not create any interest in favour of the mortgagee
vi) Such agreement only creates a personal obligation for repayment
vii) Only enforceable as a contract not a mortgage
viii) It only creates a right in personam in favour of the mortgagee
ix) On the other hand, a mortgage creates a right in rem in favour of the mortgagee
and he can enforce the same

13. Specific immovable property:

 i) Such property should be specifically mentioned in the deed
ii) And such mention should be in a reasonably certain manner
iii) Immovable property includes all things which are attached to the earth like
machinery
iv) Mortgage of house includes mortgage of any machinery attached to it like
water pump

14. Purpose of mortgage:

i) Purpose is to secure debt i.e consideration for mortgage
ii) Mortgage is a transfer supported by some consideration
iii) The loan taken may be in form of money advanced or to be advanced, an
existing or future debt or the performance of an engagement giving rise to
a pecuniary liability
iv) Money advanced or to be advanced- creditor executes a deed to secure his
money. The SC has held that mortgage doesn’t become ineffective
because money wasn’t transferred on the day the deed was executed
v) Existing debt means a debt the claim of which exists in the present like a
debt not barred by limitation. Future debt is money the mortgagor is
entitled to receive for mortgagee in the future
vi) Pecuniary liability: eg: A borrows paddy from B and mortgages his field
to secure the return of the paddy and also some additional paddy in form
of interest. Paddy is of pecuniary value

Kinds Of Mortgage:
I. Simple Mortgage:
1. When the mortgagor promises to pay the mortgage-money without delivery of
possession of the mortgage property and agrees expressly or impliedly that in case
of non-payment of loan, mortgagee shall have right to cause the mortgage
property to be sold
2. Section 58(b)
3. Characteristics of simple mortgage:
i) Mortgagor has personal obligation of repayment of loan: such obligation
may be express or implied
ii) The possession of the mortgage property is not given to the mortgagee
iii) In case of non-payment of loan the mortgagee has a right to have the
mortgage property sold
1. Mortgagee’s Remedy: If the mortgagor fails to repay the loan within the
stipulated time period, 2 remedies are available to the mortgagee:
i) Force mortgagor to pay the money, in this case he will get a simple money
decree
 ii) Can file a suit by a decree of the court to get the property and sell it off to
recover his money
2. Mortgagee may put both the cause of actions in one suit. He may personally sue the
mortgagor and may also request the court for a decree in favour of sale of the
property
2. Limitation period: The suit must be filed within 12 yrs from the date on which the
debt becomes due.
3. Registration: simple mortgage can only be through a registered document even if
the sum secured is for less than Rs. 100

II. Mortgage by Conditional Sale:

1. Section 58(c)
2. It is an apparent sale with the condition that upon repayment of the consideration
amt, the purchaser shall retransfer the property to the seller
3. Looks like a sale but intention is to secure debt
4. Most common mode in Muslims
5. Essentials:
i) There is an ostensible sale of immovable property- sale which looks like a
sale but in reality is not a sale
ii) The sale becomes void on repayment of mortgage money
iii) The sale becomes absolute in case of non-payment of mortgage money
iv) The condition must be embodied in the same document
 Registration: compulsory in case of debt exceeding Rs.100
 ABDUL RAHMAN V. BISMILLAH BEGUM : difference between sale and
mortgage by conditional sale

SALE MORTGAGE BY CONDITIONAL

SALE
No debt in sale There is a debt
Sale period repayment is lesser
Continuance of possession
Stipulation of interest
Deed talks of re-transfer

 Distinction between mortgage by conditional sale and sale with condition to

repurchase

MORTGAGE BY CONDITIONAL SALE WITH CONDITION TO RE-

SALE PURCHASE
The existence of debt is necessary There is no debt. There is no relation of
between buyer and seller debtor and creditor between buyer and
purchaser
Is a transfer only in some interest of the Transfer of all interest in the property
 property, it is a partial transfer of except a personal right to re purchase
interest which is lost if not exercised within a
certain time

III. Usufructuary Mortgage:

 Where the mortgagor gives possession of the property to mortgagee
 Since possession is with the mortgagee, he gets the usufruct i.e. produce, benefits,
rents or profits of the mortgage property
 The mortgagee is entitled to enjoy benefits of mortgage property in lieu of interest
on principal money advanced to him
 On payment of principal debt, mortgagor has no right over the property
 Sometimes when benefits are good, parties may agree that the usufruct is in lieu
of the principal amt also
 Essential elements:
i) Delivery of possession
ii) Enjoyment of rents and profits
iii) No personal liability of the mortgagor
iv) Mortgagee cannot foreclose or sue for sale of the mortgage property : no
time is fixed for repayment of debt
 Registration: in case of debt under Rs. 100 only delivery of possession is
necessary not registration
 Section 58(d)
 Zuripeshgi lease: where the right to enjoyment off an immovable property is
transferred for a fixed period of time and the rent is paid in lump sum in advance

USUFRUCTUARY MORTGAGE ZURIPESHGI LEASE

There must be an existence of a debt There is no existence of any debt
and a relation of creditor and debtor between lessor and lessee
between mortgagor and mortgagee
No time limit upto which mortgagee For a specific time period upto which
may retain possession. Continues to possession is given to the lessee
enjoy possession until his dues are all
paid

IV. English Mortgage:

 Section 58(e)
 There is an absolute transfer of property to mortgagee with the condition that
when the debt is paid off on a certain date, mortgagee shall re transfer the
property to the mortgagor
 An essential feature is that the mortgagor binds himself to pay the loan by
transferring the property absolutely
  Date is very imp, if not there the question arises whether it is an English mortgage
or not
 Registration: registration optional for mortgage for less than Rs.100

ENGLISH MORTGAGE MORTGAGE BY CONDITIONAL

SALE
Mortgagor generally binds himself No personal obligation and remedy only
personally for payment of the debt against mortgaged property
Absolute transfer, ownership is vested Conditional ownership, no immediate
in mortgagee till non payment of debt vesting of ownership
and then gets divested as soon as
payment is made on the due date

V. Mortgage by Deposit of Title Deeds:

 A peculiar kind of mortgage
 Section 58(f)
 Execution of mortgage deed by mortgagor is not necessary
 Mere deposit of title deeds of an immovable property by mortgagor to mortgagee
is sufficient
 Title deeds are those documents which are legal proof that a person owns a
particular property
 This was applicable in Bombay, Calcutta and madras.
 Could be applicable to other cities by notification
 Also applicable to all cities mentioned in the co-operative societies act
 MADANLAL SOBTI V. RAJASTHAN INDUSTRIAL CORPORATION- the
question was whether mortgage by title deeds needs registration? No, registration
only if there is a mortgage deed or an equitable deed
 It is called an equitable mortgage because in the absence of any legally executed
doc, merely on the basis of possession of title deeds by mortgagee, equity would
ensure return of the money
 Essential elements:
i) Existence of a debt
ii) Deposit of title deeds
iii) Intention to create security
iv) Territorial restrictions, applicable to certain cities only- this restriction is
only with regard to where the transaction takes place
 Remedy in default of repayment: creditor can recover his money just as he does in
a simple mortgage with a limitation period of 12 yrs.

ENGLISH MORTGAGE MORTGAGE BY TITLE DEEDS

Enforceable at equity, doesn’t operate A legal mortgage is created and there is
 as transfer of interest transfer of interest
Purely equitable and not a complete It is a complete transfer of interest and
security and can be postponed by hence cannot be postponed by any
subsequent mortgage subsequent mortgage
No territorial restrictions on There is territorial restriction
applicability

VI. Anomalous Mortgage:

 If a mortgage is not any of the other mortgages then it is an anomalous mortgage
 Section 58(g)
 They fulfil essential requirements of a mortgage but do not come under any of the
categories of mortgage
 Customary or combination of 2 or more mortgages
 Instances of anomalous mortgage (explain)
i) Simple mortgage Usufructuary
ii) Mortgage Usufructuary by conditional sale
iii) Customary forms of anomalous mortgage
 Attestation of anomalous mortgage: required to be in writing and must also be
attested

2.1.2: PRINCIPLES TO APPLY TO MORTGAGES

2.1.3: DEFINITION AND TRANSFER OF AN INTEREST

 Mortgage money is money paid from mortgagee to mortgagor
 By amendment order 34 rule 11 of CPC, mortgage money includes both amt and
interest. Earlier interest was not a part of it
 In every mortgage there is a transfer of interest for a specific immovable property.
If not shown, nt a mortgage

MORTGAGE CHARGE
Created in favour of a debt May include debt, interest, fine etc
Always a covenant May or may not be
Gives right to redemption and No such right
foreclosure
For specific immovable property For anything
2.1.4: MORTGAGOR’S RIGHTS

RIGHTS AND LIABILITIES OF A MORTGAGOR

RIGHTS OF A MORTGAGOR:
1. Right to redemption
2. Right to inspect and produce documents
3. Right to accession
4. Improvements
5. Right to renewed lease
6. Implied covenants
7. Right to lease out

DUTIES OF A MORTGAGOR:
1. To avoid waste

RIGHTS OF A MORTGAGEE:
1. Right to foreclosure
2. Right to sue for mortgage money
3. Sale

DUTIES OF A MORTGAGEE: (pg 352)

1. To take care of the property as a man of ordinary prudence
2. Duty to collect rents and profits of property
3. Duty to pay govt dues
4. To make necessary repairs of the mortgaged property
5. Nt to do an act which would destroy the property
6. To use insurance money to restore the property
7. To keep proper accounts of receipts and expenses
8. Duty to debit his accounts from profits of property

RIGHTS OF MORTGAGOR
RIGHT TO REDEMPTION:
 Applicable only to mortgagor
 It puts an end to mortgage by return of property
 Three rights granted through right to redemption:
i) Mortgagor has right to end mortgage deal
ii) Right to transfer mortgaged property to his name
iii) To take back possession of property incase of delivery of possession
 Also called equity of redemption as it was recognised by equity courts
 The mortgagor may even direct the mortgagee to transfer property to a 3rd party
like an heir etc
 A suit is filed for this is a suit for redemption. This right is parallel to every
mortgage and available to every mortgagor
 If there is sale, it exists till the completion of such sale
 NOAKES & CO V. RICE
Rice was a dealer who mortgaged his property, premise and goodwill to N subject
to provision that if R paid back all the money, the property will be transferred
back to his name or any other person’s. A covenant was attached that stated
whether or not the amt 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. HOL held that anything which clogs this right is
bad and they came up with the concept that ‘once mortgage always a mortgage’
and said that mortgage can never be irreducible.
 This principle is put to protect the mortgagor
 Any stipulation which prevents a mortgagor from redeeming his mortgage is a
clog on this right. This is called clog on redemption.
 Common law recognises right to redeem and right to equity of redemption. Right
available is the right to redeem, while the latter is the enforcement of the right in
equity courts
 But Indian courts combine both under right to redemption in section 60
 Right to redemption takes place when:
i) Direct payment by mortgagor or his heirs etc
ii) To deposit amt in court and ct sends notice to mortgagee
iii) Suit for redemption where first 2 options fail
 Partial redemption: is not allowed in law for a single consolidated amt. If it is 2
separate amts, it may be paid for separately as well as simuntaneously
 However, section 60 recognises certain exceptions to this:
i) If mortgage deed permits
ii) When co-mortgagor has separate and distinct interest
iii) When there is partition after debt and mortgagee has consented to it
 Section 91 talks about who can redeem:
i) Mortgagor, his heirs, assignees etc
ii) Sureties
iii) Charge holders or others having interest in security- does it voluntarily
iv) Creditor of mortgagor: this is generally when mortgagor is dead. He can
redeem debt by filing a suit for admin of prop whereby court appoints an
executor and sells the prop. May happen when mortgagor is alive also
v) Lessee on direction of mortgagor
vi) A subsequent/pusine mortgagee
 vii) A sub mortgagee
viii) A subsequent purchaser
ix) A donee
 Donee and charge holders are 3rd persons
 Right to foreclosure goes simultaneously with right to redemption and is available
to the mortgagee. Mortgagee can go for fore closure if mortgagor didn’t redeem.
Hence, foreclosure is not an absolute right.
 Pusine mortgagee is when property is different and sub mortgagee is for the same
property.
 Incase of Pusine mortgagee: if A mortgages property to B and the same property
to C then C can pay off B’s debt and then A is only liable to C.
 Incase of sub mortgagee: if A mortgages to B and he mortgages further to C and
C pays off B’s debt. Then A is liable to C and debt to B is redeemed
 When does right to redemption extinguish?
i) Mortgagee exercises right to foreclosure (section 67)
ii) Exercises his right to sell property, as soon as sale is completed the right
to redemption extinguishes(section 68)
iii) Limitation period: 3yrs from when amt is due

RIGHT TO INSPECT AND PRODUCE DOCUMENTS:

 Need for mortgage deed
 Can inspect docs and get a copy of the same on his own expense
 This act specially gives a right to Usufructuary mortgager to take back possession

RIGHT TO ACCESION:
 Accession means addition to property
 Mortgagor is entitled to such accession
 There may be natural or artificial accession
 Artificial accession is when mortgagor does something to land which increases
the value of the land
 Mortgagor is always in case of natural accession
 Artificial accession is again of 2 types: separable and inseparable
 Separable accession: mortgagee is entitled to it and nt liable to pay for it
 Inseparable is when mortgagee has to pay for it
 Exceptions as to when mortgagee doesn’t have to pay for inseparable accessions:
i) When such accession is done to preserve property
ii) And when it is done with the mortgagor’s consent
IMPROVEMENTS:
 Section 63-A
 Brought into act with the 1929 amendment
 It is something which increases value of property
 But unlike section 51 it includes repairs as well
 The difference between artificial accession and improvements is that preservation
of property is always the reason behind improvements. If that raises the value of
the property it is improvements.
 Improvements paid by mortgagor only if done to protect property or with his
permission
 If done with permission of public authority then also liable to pay
 Improvement is actually to keep value of property intact and prevent it from
depreciation

RIGHT TO RENEWED LEASE:

 If the mortgaged property is a lease hold 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
 Subject to any contract on the contrary

IMPLIED COVENANTS:
 Section 65
 Covenant as a title: it is implied that as soon as redemption takes place, mortgagor
gets all rights over property whether such is given in contract or not
 Defence of title: if property is trespassed then mortgagor can defend property
along with mortgagee as has an implied right to protect the property
 Public charges: it includes all govt taxes, bills etc which get transferred to
mortgagor after redemption, before which they are paid by mortgagee
 Payment of rent with respect to section 108(j): this section allows lessee to
mortgage the leasehold, even when lease is non-transferrable. Mortgagor has to
pay rents only after redemption.
 Liability to discharge prior mortgagee: liability on mortgagee to free mortgagor
from earlier debts or mortgages

MORTGAGER’S RIGHT TO LEASE OUT:

 Section 65 A
 Introduced through amendment of 1929
 Earlier act prohibited the same and said that mortgagor can lease out mortgaged
property only with mortgagee’s permission
 But there are some conditions to this:
 i) All conditions in lease to be according to laws and customs to prevent
fraudulent transactions
ii) No rent shall be paid in advance or premium promised or paid by
mortgagee
iii) No provision for renewal of lease
iv) The lease is to come in force within 6 months from date of execution
v) Where the mortgaged property is a bldg the term of lease shouldn’t exceed
3 yrs

DUTY OF MORTGAGOR
Duty to avoid waste:
 Section 66
 Nt to waste prop or do any act whereby value of prop reduces
 There are 2 types of waste: permissive and active
 Permissive waste is a minor waste which the mortgagor is not liable for
 Active waste is when it is something major for which the mortgagor is liable

RIGHTS OF MORTGAGEE

RIGHT TO FORECLOSURE:
 Mortgagee has right to take back loan i.e. foreclosure
 Foreclosure is always done by a suit, court orders payment of money or may ask
property to be sold off
 When this is allowed the mortgagor loses his right to redeem
 Right depends on curtailment of contract between mortgagor and mortgagee
 Redemption is absolute to protect interests of mortgagor
 In simple mortgage
i) Suit for recovery of money
ii) Suit for sale
 In Usufructuary mortgage
i) Since no personal binding, no foreclosure
ii) Can file a suit only when mortgagor interferes with usufruct
 In mortgage by conditional sale
i) Only foreclosure for recovery of money
ii) As suit for sale not needed, due to conditional sale
 In English mortgage
i) Need to file suit for foreclosure, not sale
 In mortgage by title deeds
 i) Suit for sale not needed
ii) Only suit for foreclosure for recovery of money
 In anomalous mortgage it depends on contract
 Partial foreclosure allowed only when mortgagees have distinct interests
 Partial foreclosure is generally not allowed to protect mortgagor from multiple
suits and harassment.
 Exceptions: (section 67)
i) Trustee: prohibits a mortgagor who holds a mortgagee’s property as a
trustee from instituting a suit of foreclosure
ii) Public works: whenever there is a mortgage regulating public works,
mortgagee cant file suit for foreclosure. Remedy to ask court to appoint a
receiver
 Limitation period is 12 yrs
 Rule of consolidation (section 67(a)): where mortgagor has executed several
mortgages over the same property, the mortgagor can compel the mortgagee to
consolidate all debts in one suit of foreclosure

RIGHT TO SUE FOR MORTGAGE MONEY:

Conditions:
 When the mortgagor binds himself to pay the mortgage money
 Where the mortgaged property is destroyed vis major
 Due to wrongful act or default of mortgagor, depriving mortgagee of whole or
part of the security
 Where mortgagor fails to deliver possession of property (Usufructuary)

RIGHT TO ACCESSION:
 Mortgagee enjoys right to accession till redemption or foreclosure

RIGHT TO RENEWED LEASE:

 Till redemption or foreclosure

RIGHT OF MORTGAGEE IN POSSESSION OF PROPERTY:

 If mortgagee has spent on the prop, he has a right to claim such expenses from the
mortgagor
 They may be for:
i) Prevention of destruction or deterioration of prop
ii) To protect mortgagor’s title
iii) To make his own title good against the mortgagor
iv) Anything he does to renew the leasehold
SALE:
 Section 69
 Through foreclosure, sale can be instituted
 But section 69 allows sale without intervention of the court
 English mortgage: parties should not be Hindu, Muslim, Buddhist or any sect or
religion notified
 Where the mortgage is a govt and express power to sell is granted through the
mortgage deed
 When the mortgaged property is situated in one of the notified towns and deed
contains express power to sale
 This right can only be exercised when amt is due
 Mortgagee has to notify mortgagor
 When default in pmt of interest, slae allowed for interest above Rs. 500 and
default of 3 months
 Appropriation of sale proceeds are done in the following manner:
i) Discharge of prior incumbrances like liabilities or charge on property
before sale
ii) Payment of costs and expenditures incurred in making sale
iii) Then applied to discharge of mortgage money
iv) Surplus, if any goes to the mortgagor
 Purchaser’s interests are protected under section 69(3): title of purchaser not
affected by irregularity in exercise of power of sale

TACKLING:
 Section 93
 Prohibited in India
 Means uniting securities taken at different times
 A takes loan from B,C, D. D pays off loan of B. B subrogates D and wil have
priority rights to claim debt. Securities of B and D are united.
 Nt allowed in India, D will have claims only in repect to B’s rights and then C and
then D will be cleared
 Section 79: exceptions when tackling is allowed:
i) Where the mortgage is secured for future advances
ii) For performance of an engagement
iii) As a balance of a running account and the amt should be max to be
secured and a notice has been issued

CONTRIBUTION:
  Section 82
 It is of 2 types:
i) Contribution by ppl
ii) Contribution by property
 Contribution by people: when there are 2 or more persons having distinct interest
in the property and the prop is mortgaged, then both of them contribute to the
mortgage debt rateable according to market value
 Contribution by property: when a person has 2 or more properties and all aore
mortgaged to B and one to C, B can claim for all while C can claim for one.
 Rules of contribution: (pg 371)
i) when mortgaged prop belongs to 2 or more persons: the co mortgagors have
no personal obligation to contribution
ii) when one property is mortgaged first and then again to another person:
payment or prior encumbrance is made from prop mortgaged first
iii) marshalling supersedes contribution

MARSHALLING CONTRIBUTION
Right available to mortgagees, settles right Right of mortgagor in several properties
to subsequent mortgagees inter se and several shares in one property, rights of
mortgagors inter se
A subsequent mortgagee requires a prior Requires that a prop which is equally liable
mortgagee shall recover his debt out of the to pay a debt shall not escape because the
prop nt mortgaged to him creditor has been paid out of that other
property

SUBROGATION:
 section 92
 Roman word which means substitution
 When a person steps into the shoes of creditor, he is said to have subrogated the
creditor
 An equity principle
 A mortgages his prop to B,C. C relieves A of his debt from B. C subrogates B
 Two types of subrogations:
i) Legal
ii) Conventional
 Legal subrogation takes place by operation of law. It is when subrogation is done
when a person has a pre-existing interest or charge on property.
 Conventional subrogation is one which is done through an agreement or contract
which must be in writing and registered.
 Subrogation does not kill the debt, its still alive just transferred to someone else
  Legal subrogation only applicable to puisne mortgagee, co-mortgagor, surety,
purchaser of equity of redemption
 Conditions for legal subrogation:
i) There has to be pre-existing interest or charge on property
ii) Amt must be redeemed in full
iii) Amt must be paid from his own pocket
 MAHESH LAL V. MAHANT BAWAI DAS –
Mangal Das mortgaged his own villages and 3 villages belonging to D to
Laxminarayan. MBD was head of religious institution and consented to the
mortgage. 3 yrs later Mangal Das obtained loan from ML by mortgaging 4
villages without consent of MDB. When didn’t pay amt, ML filed suit against
MDB as villages belonged to him. MDB refused as done without his permission.
No subrogation as owner of property hasn’t given consent.

MARSHALLING:
 Section 81
 Right of puisne mortgagee
 Eg: A has 2 props and has mortgaged both to B and then one to C also. Here C is
the puisne mortgagee and can ask B to satisfy his claim from the other property
and then the remaining from the property mortgaged to both.
 Before 1929 amendment- only 2 props in marshalling
 Now 2 or more props mortgaged only to a single person
 Eg: A mortgages property x and y to B and then x to C and y to D. C cannot ask B
to satisy his debt from y as that effects rights of D
 If there is a contract to the contrary, then contract shall prevail
 Section 56 wrt sale
 If a person has 2 or more properties and mortgages all the properties and the
mortgagor sells one of his properties, the buyer has a right to tell the mortgagee to
satisfy his claim from the properties left. This right is called marshalling
 Mortgagee can say that if his debt is not satisfied from the remaining prop, he can
claim prop sold to buyer. Such loss will be claimed by buyer from seller
 3 essentials of marshalling:
i) Applies only to mortgaged prop or prop on charge
ii) Applies only when 2 or more props exist
iii) Only one single mortgagee
 Marshalling is always done for benefit of the buyer

RECEIVER:
  Section 69 provides for appointment, position and remuneration of receiver
 Such receiver appointed by mortgagee
 A receiver may be appointed:
i) Mortgagee nominating an receiver but shall be named in mortgage deed
with such person’s consent
ii) May also be appointed by mortgagee if:
(a) All persons nominated by mortgagor are dead
(b) All persons nominated by mortgagor have refused to act as receivers

iii) receiver appointed by court when could not be appointed by mortgagee or

agreed on by the mortgagee
 Acts as agent of mortgagee
 The remuneration or commission of such receiver is fixed in the mortgage deed.
But if not so fixed then according to this section he shall get 5% of the gross
income as remuneration

PRIORITY:
 Section 78
 Qui priorest tempore potiour est jure: one who comes first in time, is better in law
 Rule of priority is in section 48
 This section is an exception to the rule of priority
 The prior mortgage shall be postponed to the subsequent mortgage when another
person is induced to advance money on the security of a mortgaged property by:
i) Fraud
ii) Misrepresentation
iii) Gross neglect
 Eg; when A has mortgaged his property to B(prior) and C. If B tells C and D that
the property is free from incumbrances and one property is sold to D. Then B
loses his priority and C will become mortgagee also D will get property sold to
him.

Lease

SECTION 105:
 Lease is when there is a transfer of rights of enjoyment of property
 In the concept of Lease, there is always a separation of ownership and possession
 Lease is transfer of right to enjoyment made for a certain time(express/ implied/
perpetuity) for a consideration(money/ price paid or promised for anything which
has value) which should be paid periodically according to the terms and
conditions entered into by transferor and transferee.
 Transferor : lessor
 Transferee: lessee
 Price: rent
 Property: leasehold
 This concept existed even before TOPA. Personal laws applied. If conflict in laws
then English laws are applied.
 Essential conditions:
i) Parties to a lease
ii) Immovable property is leased: right to enjoyment: demise
iii) Period: may be month to month or yr to yr or half yr to half yr
iv) Premium(paid in advance) or rent(monthly payment)
 Right to enjoy may commence in present or future or on the happening of an
event
 Right maybe transferred by express or implied form
 Lease does not include joint tenancy or tenancy in common
 COBB V. LONE: difference between lease and license was established. HOL had
to decide whether transaction is lease or license. Determined by the following:
i) Substance of the document must be preferred rather than the form
ii) What the parties intended to do
iii) If the parties intended to create an interest in the property, it is a lease
iv) If there is no exclusive possession of the property but only makes an act
lawful, it is a license
 Distinction between Lease and License:

LEASE LICENSE

It is a transfer of interest and therefore There is no transfer of interest, so no

a TOP TOP

Lessee gets proprietary rights in respect It is a personal right of a person for

to land called demise or leasehold using the land of another
estate

Transferable interest Non-transferable interest

Entitled to maintain action against any Cannot take action against trespasser
trespasser

Cannot be revoked before expiry of the Subject to certain exceptions, license

term and without breach of express can generally be revoked
conditions

Right to exclusive possession No exclusive possession

 Doesn’t come to end with death of Comes to end with death of grantor
grantor

 It is upto the landlord to prove that the tenant is a licensee.

SECTION 106: IMPLIED DURATION

 When there is no local custom in existence or no written contract, duration is
being implied on payment of rent
 Period of rent is the duration of the lease
 Amendment of 2002- this section applies to all notices before the commencement
of the act
 Transitory provisions: the provisions of this section as amended shall apply to:
i) All notices in pursuance of which any suit or proceeding is pending at the
commencement of this act
ii) All notices which have been issued before the commencement of this act
but where no suit or proceeding has been filed before such
commencement
 Duration of certain lease: duration is an essential element of every lease. Usually
the duration of the lease is ascertained by:
i) Mutual agreement, and if not then
ii) Local law or customs, if any
iii) Ascertained under section 106
 For ascertaining term of the lease they have been classified into the following:
i) Leases from yr to yr, when lease is made for agricultural or manufacturing
purposes- deemed to be a lease from yr to yr for agricultural and
manufacturing purposes. But a lease for mixed purposes like dwelling and
manufacturing is not a lease for manufacturing purposes.
ii) Leases from month to month, when made for any other purpose- in this
case when the customs and local laws are also silent then it is on a
monthly basis.
 Tenancy for dual purposes:
i) Composite tenancy: tenancy of mixed purposes- need may arise for
determining the dominant purpose of letting.
ii) Integrated tenancy: when it is already known that a particular portion of
the premises shall be used for one purpose while another for another
purpose.
  According to this section as amended the leases for agricultural or manufacturing
purposes may be terminated by giving six months notice. Leases for any other
purpose may be terminated by giving a fifteen days notice.
 Notice may be provided by lessee or lessor
 Notice must be in writing, signed by or on behalf of the person giving it
 Such notices must be definite and unconditional and must indicate a clear
intention of termination of tenancy after expiry of the notice
 Service of notice: must be duly served on the party intended to be bound by it.
Notice may be served by post or may be delivered to them personally

SECTION 107: MODES OF CREATING LEASE

 How a lease is made
 A lease is always made through a written document which must be registered.
 It shall be executed by both lessor and lessee
 If oral transfer should convert into writing later and get it registered
 Leases which can be made only by registration:
i) Leases from yr to yr
ii) Leases for a term exceeding one yr
iii) Leases reserving an yearly rent
iv) Permanent leases
 Leases in which registration is optional:
i) Leases from month to month
ii) Leases for a term of one yr
iii) Leases for a term less than a yr
 Where the lease is required to be made through a registered deed, the deed must
be executed by both, lessee and Lessor. A written registrable lease is invalid if it
is not executed by both the parties.
 Where the lease is to be compulsorily registered, and is not registered then it is
invalid. The provision for its renewal shall not affect shall not affect the
requirement of its registration when a registered lease is further renewed.

SECTION 108:
RIGHTS AND LIABILITIES OF LESSOR AND LESSEE

Rights of a Lessor:
Does not provide for any specific rights of the Lessor, have to be identified through the
duties.
1. Right to know defects in the property which Lessee knew and didn’t disclose
 2. Lessor has right to get back ownership of the property
3. Lessor contracts with lessee that if there is a default in payment then Lessee will
have possession
4. In case of any default, Lessee has to vacate

Duties of a Lessor:
1. Duty to disclose latent material defect
2. Duty to give possession
3. Duty for a covenant for quite enjoyment of property by Lessee

Rights of a Lessee:
1. Right to accretions
2. Right to avoid lease on destruction of property
3. Right to deduct cost of repairs
4. Right to deduct outgoings
5. Right to remove crops
6. Right to remove fixtures
7. Right to assign his interest

Duties of a Lessee:
1. Duty to disclose facts
2. Duty to pay rent
3. Duty to maintain the property
4. Duty to give notice of encroachment
5. Duty to use the property reasonably
6. Duty not to erect permanent structure
7. Duty to restore possession

SECTION 111:
Under this section, a lease may be determined in the following situations:
1. By lapse of time
2. By happening of specified event
3. By termination of lessor’s interest
4. By merger
5. By express surrender
6. By implied surrender
7. By forfeiture
8. By expiry of notice to quit

SECTION 112:
  There can be a waiver of forfeiture in 3 ways:
1. If the Lessor accepts the rent due since forfeiture
2. By distress for such rent- continuous harassment
3. By any act on the part of the Lessor showing an intention to treat the lease as
subsisting
 Proviso 1: if he accepts rent due after filing suit for ejectment, it will not amount
to waiver
 Proviso 2: before waiver of forfeiture the lessor should be aware of the
circumstances

SECTION 113:
 This section applies to waiver of notice
 This right is waived by:
i) An express or implied consent of the person to whom the notice is given.
No waiver after expiry of notice
ii) By an act of a person giving notice showing intention of the lease as
subsisting
 If he wants to eject again, Lessor has to serve a fresh notice

TYPES OF LEASES:
1. Permanent:
 No date of expiry given
 Where a tenancy is granted through a written instrument, the question whether it
is permanent or not
 Depends on the terms of the agreement
 The object of the lease, circumstances in which it is granted and subsequent
conduct of parties to be taken into consideration
2. Tenancy at will:
 When determination upon will of Lessor/Lessee
 It is a part of permanent lease
 Comes to an end when:
i) By giving away possession
ii) Death of landlord or tenant. Therefore, is not assignable
iii) When landlord or tenant assigns his interest
3. Tenancy at sufferance
 If Lessee continues to stay in possession without consent of Lessor and enjoys the
property
 Concept of consent is not there
 Comes to an end by forfeiture
4. Tenancy by holding out:
  Section 116
 If Lessee continues to stay without renewing the agreement and Lessor accepts
this
 Concept of consent is there
 Comes to an end with forfeiture and giving notice

SECTION 117:
 Exemption given to leases for agricultural purposes
 Object of exemption is to retain the established local usages and the statutory laws
containing special provisions for agricultural holdings
 A mere fact that the lease relates to agricultural land doesn’t make it a lease for
agricultural purposes and isn’t given exemption
 In the absence of local usages and laws, the provisions of section 106 to 116 are
to be applied on grounds of equity, good conscience and justice.

Sections not done by ma’am:

 Section 109: rights of lessor’s transferee

 Section 110: exclusion of day on which it commences
 Section 114: relief against forfeiture for non-payment of rent
 Section 115: effect of surrender and forfeiture under leases

UNIT IV- CONCEPT OF EASEMENT AND INDIAN EASEMENT ACT

1. It is the law of neighbours/neighbour’s principle. For example, A as the owner of

a certain house has the right to way over his neighbours property for beneficial
enjoyment of his land.
2. S. 4. "Easement" defined.-An easement is a right which the owner or occupier of
certain land possesses, as such, for the beneficial enjoyment of that land, to do
and continue to do something, or to prevent and continue to prevent something
being done, in or upon, or in respect of, certain other land not his own.

Essential Characteristics:
1. There must be a dominant and servient heritage.
i) The land for the beneficial interest of which the right exists is called the dominant
heritage.
ii) Owner is the dominant owner.
iii) The land in which the liability is imposed is called the servient heritage.
iv) Owner of the servient heritage is the servient owner.
2. Easement must accommodate the dominant tenant
i) The question of whether there is an easement or not is a mixed question of law
and fact
ii) It is a permanent right.
iii) To get the benefit of the servient tenant, the servient heritage should be close
enough to the dominant heritage.
iv) An easement can still exist if they are separated by some other land.

3. Dominant and servient owners must be different persons. The right comes to an
end if both persons become one.
4. Easement must be capable of forming the subject matter of grant. All easements
lie in grant and should be granted by a deed.

TYPES OF EASEMENTS
1. Continuous Easement: one whose enjoyment is or may be continued by the act
of man. For example, A’s right is annexed to B’s house to receive light by the
windows without obstruction by his neighbour.
2. Discontinuous Easement: is one that needs the act of man for its enjoyment.
For example, a right of way annexed to A’s house over B’s land.
3. Apparent Easement: An apparent easement is one the existence of which is
shown by some permanent sign which, upon careful inspection by a
competent person, would be visible to him. For example, Rights annexed to
A's land to lead water thither across B's land by an aqueduct and to draw off
water thence by a drain. The drain would be discovered upon careful
inspection by a person conversant with such matters. These are apparent
easements.
4. A non-apparent easement is one that has no such sign. For example, A right
annexed to A's house to prevent B from building on his own land. This is a
non-apparent easement.

S. 6 -EASEMENT FOR LIMITED TIME OR ON CONDITION.-

An easement may be permanent, or for a term of years or other limited period, or
subject to periodical interruption, or exercisable only at a certain place, or at
certain times, or between certain hours, or for a particular purpose, or on
condition that it shall commence or become void or voidable on the happening of
a specified event or the performance or non-performance of a specified act.
S. 7-EASEMENTS RESTRICTIVE OF CERTAIN RIGHTS
Easements are restrictions of one or other of the following rights (namely):-
(a) Exclusive right to enjoy.-The exclusive right of every owner of immovable
property (subject to any law for the time being in force) to enjoy and dispose of
the same and all products thereof and accessions thereto.
 (b) Rights to advantages arising from situation.-The right of every owner of
immovable property (subject to any law for the time being in force) to enjoy
without disturbance by another the natural advantages arising from its situation

S. 8- WHO MAY IMPOSE EASEMENTS.-

An easement may be imposed by anyone in the circumstances, and to the extent,
in and to which he may transfer his interest in the heritage on which the liability is
to be imposed.
SERVIENT OWNERS
1. S. 9, Subject to the provisions of section 8, a servient owner may impose on
the servient heritage any easement that does not lessen the utility of the
existing easement.
2. But he cannot, without the consent of the dominant owner, impose an
easement on the servient heritage which would lessen such utility.
3. Illustration: (a) A has, in respect of his mill, a right to the uninterrupted flow
thereto from sunrise to noon of the water of B's stream. B may grant to C the
right to divert the water of the stream from noon to sunset: Provided that A's
supply is not thereby diminished.
4. Lessor cannot grant easement if it affects the right of lesee
5. Mortagagor can grant easement but should not reduce the value of the
property

WHO MAY ACQUIRE EASEMENTS

1. An easement may be acquired by the owner of the immovable property for the
beneficial enjoyment of which the right is created
2. Co- owner can also acquire easement

EASEMENTS OF NECESSITY AND QUASI EASEMENTS

Where one person transfers or bequeaths immovable property to another,-

 If an easement in other immovable property of the transferor or testator is

necessary for enjoying the subject of the transfer or bequest
 The transferee or legatee shall be entitled to such an easement
 Where a partition is made of the joint property of several persons- if an easement
over the share of one of them is necessary for enjoyment by the others, the latter
shall be entitled to such easement
 They are easements of necessity

 Where such easement is apparent and continuous and necessary for enjoying the
said property as it was enjoyed when the transfer or bequeath took effect, the
transferee or legatee shall, unless a different intention is expressed or necessity is
implied, is entitled to such easement.
 This is Quasi easement.
 ACQUISITION BY PRESCRIPTION

 Where the access and use of light or air to and for any building have been
peaceably enjoyed therewith, as an easement, without interruption, and for twenty
years,
 and where support from one person's land or things affixed thereto has been
peaceably received by another person's land subjected to artificial pressure or by
things affixed thereto, as an easement, without interruption, and for twenty years,
 and where a right of way or any other easement has been peaceably and openly
enjoyed by any person claiming title thereto, as an easement, and as of right,
without interruption, and for twenty years,
 the right to such access and use of light or air, support or other easement shall be
absolute
 Illustrations : A suit is brought in 1883 for obstructing a right of way. The
defendant admits the obstruction, but denies the right of way. The plaintiff proves
that the right was peaceably and openly enjoyed by him, claiming title thereto as
an easement and as of right, without interruption, from 1st January, 1862, to 1st
January, 1882. The plaintiff is entitled to judgment.
 Rights which cannot be acquired by prescription.- Easements acquired under
section 15 are said to be acquired by prescription, and are called prescriptive
rights. None of the following rights can be so acquired:-
(a) a right which would tend to the total destruction of the subject of the right, or
the property on which, if the acquisition were made, liability would be imposed;
(b) a right to the free passage of light or air to an open space of ground;
(c) a right to surface-water not flowing in a stream and not permanently collected
in a pool, tank or otherwise;
(d) a right to underground water not passing in a defined channel.

CUSTOMARY EASEMENTS
 An easement may be acquired in virtue of a local custom.
 Such easements are called customary easements.
 Illustration: By the custom of a certain village every cultivator of village land is
entitled, as such, to graze his cattle on the common pasture. A, having become the
tenant of a plot of uncultivated land in the village, breaks up and cultivates that
plot. He thereby acquires an easement to graze his cattle in accordance with the
custom

TRANSFER OF DOMINANT HERITAGE PASSES EASEMENT

 Where the dominant heritage is transferred or devolves, by act of parties or by
operation of law, the transfer or devolution shall, unless a contrary intention
 appears, be deemed to pass the easement to the person in whose favour the
transfer or devolution takes place.
 Illustration: A has certain land to which a right of way is annexed. A lets the
land to B for twenty years. The right of way vests in B and his legal representative
so long as the lease continues.
 Section 19

INCIDENTS OF EASEMENTS
I. Rules contained therein are controlled by any contract between the dominant and
servient owners relating to servient heritage.
Balram Das Goswami V. Purna Chandra Rath, AIR 1975 Ori 88
 Where there is a covenant by which the purchaser of one of the several plots binds
himself to keep open a passage of fined width for common use
 The court cannot reduce the width
 Thus, customary easement is an exception

II. Confinement Of Excercise Of Easement:

 An easement must not be used for any purpose not connected with the enjoyment
of the dominant heritage
 Eg: A as a owner of a farm has a right to way over B’s land to Y’s farm
 Eg: A has another farm Z, the beneficial enjoyment of which is not necessary for
the beneficial enjoyment of Y. He must not use it to pass to Z.
III. Least Onerous Mode:
 The dominant owner must exercise his right in the mode which is least onerous to
the servient owner
 A has a right to way over B’s field. A must enter the way either at the end or
beginning but not in any intermediary point.

IV. Alteration Of Mode Of Enjoyment:

 the dominant owner may, from time to time, alter the mode and place of enjoying
the easement, provided that he does not thereby impose any additional burden on
the servient heritage.
 Exception.--The dominant owner of a right of way cannot vary his line of passage
at pleasure, even though he does not thereby impose any additional burden on the
servient heritage.
 Illustrations : A, the owner of a saw-mill, has a right to a flow of water sufficient
to work the mill. He may convert the saw-mill into a corn- mill, provided that it
can be worked by the same amount of water.

V. Right To Do Acts To Secure Enjoyment

  The dominant owner is entitled, as against the servient owner, to do all acts
necessary to secure the full enjoyment of the easement; but such acts must be
done at such time and in such manner as, without detriment to the dominant
owner, to cause the servient owner as little inconvenience as possible; and the
dominant owner must repair, as far as practicable, the damage (if any) caused by
the act to the servient heritage.
 Accessory rights.-Right to do acts necessary to secure the full enjoyment of an
easement are called accessory rights.
 Illustration : A has an easement to lay pipes in B's land to convey water to A's
cistern. A may enter and dig the land in order to mend the pipes, but he must
restore the surface to its original state.

VI. Liability For Expenses Necessary For Preservation Of Easement

The expenses incurred in constructing works, or making repairs, or doing any other
act necessary for the use or preservation of an easement, must be defrayed by the
dominant owner

VII. Liability For Damage From Want Of Repair

Where an easement is enjoyed by means of an artificial work, the dominant owner is

liable to make compensation for any damage to the servient heritage arising from the
want of repair of such work.

VIII. Servient Owner Not Bound To Do Anything

 The servient owner is not bound to do anything for the benefit of the dominant
heritage, and he is entitled, as against the dominant owner, to use the servient
heritage in any way consistent with the enjoyment of the easement: but he must
not do any act tending to restrict the easement or to render its exercise less
convenient.
 Illustration: A, as owner of a house, has a right to lead water and send sewage
through B's land. B is not bound, as servient owner, to clear the watercourse or
scour the sewer.

IX. Extent Of Easements

 With respect to the extent of easements and the mode of their enjoyment, the
following provisions shall take effect:-
i) Easement of necessity.-An easement of necessity is co-extensive with the
necessity as it existed when the easement was imposed.
ii) Other easements.-The extent of any other easement and the mode of its
enjoyment must be fixed with reference to the probable intention of the parties
and the purpose for which the right was imposed or acquired.
 In the absence of evidence as to such intention and purpose-
 (a) Right of way.-a right of way of any one kind does not include a right of
way of any other kind
(b) Right to light or air acquired by grant.-the extent of a right to the passage
of light or air to a certain window, door or other opening, imposed by a
testamentary or non-testamentary instrument, is the quantity of light or air that
entered the opening at the time the testator died or the non-testamentary
instrument was made
(c) Prescriptive right to light or air.-the extent of a prescriptive right to the
passage of light or air to a certain window, door or other opening is that
quantity of light or air which has been accustomed to enter that opening
during the whole of the prescriptive period irrespectively of the purposes for
which it has been used
(d) Prescriptive right to pollute air or water.-the extent of a prescriptive right
to pollute air or water is the extent of the pollution at the commencement of
the period of user on completion of which the right arose and
(e) Other prescriptive rights.-the extent of every other prescriptive right and
the mode of its enjoyment must be determined by the accustomed user of the
right.

X. Increase Of Easement

 The dominant owner cannot, by merely altering or adding to the dominant

heritage, substantially increase an easement.
 Where an easement has been granted or bequeathed so that its extent shall be
proportionate to the extent of the dominant heritage, if the dominant heritage
is increased by alluvion, the easement is proportionately increased, and, if the
dominant heritage is diminished by diluvion, the easement is proportionately
diminished.
 Save as aforesaid, no easement is affected by any change in the extent of the
dominant or the servient heritage.
 Illustration :A, the owner of a mill, has acquired a prescriptive right to divert
to his mill part of the water of a stream. A alters the machinery of his mill. He
cannot thereby increase his right to divert water.

XI. Partition Of Dominant Heritage

 Where a dominant heritage is divided between two or more persons, the easement
becomes annexed to each of the shares, but not so as to increase substantially the
burden on the servient heritage:
 Provided that such annexation is consistent with the terms of the instrument,
decree or revenue-proceeding (if any) under which the division was made, and, in
the case of prescriptive rights, with the user during the prescriptive period.
  Illustration: A house to which a right of way by a particular path is annexed is
divided into two parts, one of which is granted to A, the other to B. Each is
entitled, in respect of his part, to a right of way by the same path.

XII. Obstruction In Case Of Excessive User

 In the case of excessive user of an easement the servient owner may, without
prejudice to any other remedies to which he may be entitled, obstruct the user,
but only on the servient heritage:
 Provided that such user cannot be obstructed when the obstruction would
interfere with the lawful enjoyment of the easement.
 Illustration A, having a right to the free passage over B's land of light to four
windows, six feet by four, increases their size and number. It is impossible to
obstruct the passage of light to the new windows without also obstructing the
passage of light to the ancient windows. B cannot obstruct the excessive user.

THE DISTURBANCE OF EASEMENTS:

 The owner or occupier of the dominant heritage is entitled to enjoy the easement
without disturbance by any other person.
 Illustration A, as owner of a house, has a right of way over B's land. C unlawfully
enters on B's land, and obstructs A in his right of way. A may sue C for
compensation, not for the entry, but for the obstruction.
 Suit for disturbance of easement.-The owner of any interest in the dominant
heritage, or the occupier of such heritage, may institute a suit for compensation
for the disturbance of the easement or of any right accessory thereto; provided
that the disturbance has actually caused substantial damage to the plaintiff.
 Illustration: A places a permanent obstruction in a path over which B, as tenant of
C's house, has a right of way. This is substantial damage to C, for it may affect the
evidence of his reversionary right to the easement.

REMEDY:

Injunction to restrain disturbance

 Subject to the provisions of the Specific Relief Act, 1877 (1 of 1877), sections 52
to 57 (both inclusive), an injunction may be granted to restrain the disturbance of
an easement-
(a) if the easement is actually disturbed
(b) if the disturbance is only threatened or intended

Extinction, Suspension and Revival of Easements:

I. Extinction by dissolution of right of servient owner

  When, from a cause which preceded the imposition of an easement, the person by
whom it was imposed ceases to have any right in the servient heritage, heritage,
the easement is extinguished.
 Exception.--Nothing in this section applies to an easement lawfully imposed by a
mortgagor in accordance with section 10.
 Illustration:A transfers Sultanpur to B on condition that he does not marry C. B
imposes an easement on Sultanpur. Then B marries C. B's interest in Sultanpur
ends, and with it the easement is extinguished.

II. Extinction by release

 An easement is extinguished when the dominant owner releases it, expressly or
impliedly, to the servient owner.
 Such release can be made only in the circumstances and to the extent in and to
which the dominant owner can alienate the dominant heritage. An easement may
be released as to part only of the servient heritage.
 Illustration: A, B and C are co-owners of a house to which an easement is
annexed. A, without the consent of B and C, release the easement. This release is
effectual only as against A and his legal representative.

III. Extinction by revocation.

 An easement is extinguished when the servient owner, in exercise of a power

reserved in this behalf, revokes the easement condition.
 Extinction on expiration of limited period or happening of dissolving
condition.
 An easement is extinguished where it has been imposed for a limited period,
or acquired on condition that it shall become void on the performance or non-
performance of a specified act, and the period expires or the condition is
fulfilled.

IV. Extinction on termination of necessity

 An easement of necessity is extinguished when the necessity comes to an end.

 Illustration A grants B a field inaccessible except by passing over A's adjoining
land. B afterwards purchases a part of that land over which he can pass to his
field. The right of way over A's land which B had acquired is extinguished

V. Extinction of useless easement

An easement is extinguished when it becomes incapable of being at any time and

under any circumstances beneficial to the dominant owner.
VI. Extinction by permanent change in dominant heritage

Where, by any permanent change in the dominant heritage, the burden on the
servient heritage is materially increased and cannot be reduced by the servient
owner without interfering with the lawful enjoyment of the easement, the
easement is extinguished, unless-

(a) it was intended for the beneficial enjoyment of the dominant heritage, to
whatever extent the easement should be used; or

(b) the injury caused to the servient owner by the change is so slight that no
reasonable person would complain of it; or

(c) the easement is an easement of necessity. Nothing in this section shall be

deemed to apply to an easement entitling the dominant owner to support of the
dominant heritage.

VII. Extinction on permanent alteration of servient heritage by superior force

 An easement is extinguished where the servient heritage is by superior force so

permanently altered that the dominant owner can no longer enjoy such easement:
Provided that, where a way of necessity is destroyed by superior force, the
dominant owner has a right to another way over the servient heritage; and the
provisions of section 14 apply to such way.
 Illustration: A grants to B, as the owner of a certain house, a right to fish in a
river running through A's land. The river changes its course permanently and runs
through C's land. B's easement is extinguished.

VIII. Extinction by destruction of either heritage

 An easement is extinguished when either the dominant or the servient heritage is

completely destroyed.
 Illustration A has a right of way over a road running along the foot of a sea- cliff.
The road is washed away by a permanent encroachment of the sea. A's easement
is extinguished

IX. Extinction by unity of ownership

 An easement is extinguished when the same person becomes entitled to the

absolute ownership of the whole of the dominant and servient heritages.
 Illustration: A, as the owner of a house, has a right of way over B's field. A
mortgages his house and B mortgages his field to C. Then C forecloses both
mortgages and becomes thereby absolute owner of both house and field. The right
of way is extinguished.

X. Extinction by non-enjoyment
  A continuous easement is extinguished when it totally ceases to be enjoyed as
such for an unbroken period of twenty years.
 A discontinuous easement is extinguished when, for a like period, it has not been
enjoyed as such
 An easement is not extinguished:
i) Contract
ii) Dominant heritage is co-owned
iii) Easement of necessity

XI. Extinction of accessory rights

 When an easement is extinguished, the rights (if any) accessory thereto are also
extinguished.
 Illustration: A has an easement to draw water from B's well. As accessory thereto,
he has a right of way over B's land to and from the well. The easement to draw
water is extinguished under section 47. The right of way is also extinguished.

SUSPENSION:

I. An easement is suspended when the dominant owner becomes entitled to possession of

the servient heritage for a limited interest or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein.

II. The servient owner has no right to require that an easement be continuous and is not
entitled to compensation for damage in consequence of the extinguishment or suspension
of easement. If the dominant owner has given to the servient owner such notice as will
enable him, without reasonable exception to protect the servient heritage from damage.

DURATION OF EASEMENT:

Easement may be:

I. Permanent or for a term of years

II. For a particular purpose
III. On the happening of an event

CASE LAWS:

VARGHESE POULO SE V. K.I MATTHEW

 AIR 1965
 M cut a channel from the govt canal to irrigate his land through certain lands of
others and pursuant to an agreement with them
 They became entitled to take water from the channel.
  M started catching prawns in the canal so they filed a suit
 It was held that M can do that the right created in favour of M was an interest in
the immovable property and would pass with the property.

PANCHANAN MANDAL V. SULATA ROY MANDAL

 AIR 1980 cal 325

 The defendant deepened a ditch on his land adjoining that of the plaintiff on
which the plaintiff had constructed a building
 When the ditch was deepened there was no damage to the building but during
monsoons a part of the bldg subsided
 Held that: there was no evidence to show that the land would have subsided even
in its natural state. It was not a violation.

LICENSE

 "License" :Where one person grants to another, or to a definite number of other

persons, a right to do, or continue to do, in or upon the immovable property of the
grantor, something which would, in the absence of such right, be unlawful, and
such right does not amount to an easement or an interest in the property, the right
is called a license.
 Who may grant license.-A license may be granted by any one in the
circumstances and to the extent in and to which he may transfer his interests in the
property affected by the license
 Grant may be express or implied.-The grant of a license may be express or
implied from the conduct of the grantor, and an agreement which purports to
create an easement, but is ineffectual for that purpose, may operate to create a
license.
 Accessory licenses annexed by law
i) All licenses necessary for the enjoyment of any interest, the exercise of
any right, are implied in the constitution of such interest or right.
ii) Such licenses are called accessory licenses.
iii) Illustration A sells the trees growing on his land to B. B is entitled to go
on the land and take away the trees.

 License when transferable

 Unless a different intention is expressed or necessarily implied, a license
to attend a place of public entertainment may be transferred by the
licensee; but, save as aforesaid, a license cannot be transferred by the
licensee or exercised by his servants or agents.
 Illustration: A grants B a right to walk over A's field whenever he pleases.
The right is not annexed to any immovable property of B.

 License when revocable.

 i) A license may be revoked by the grantor, unless- (a) it is coupled with a
transfer of property and such transfer is in force: (b) the licensee, acting
upon the license, has executed a work of a permanent character and
incurred expenses in the execution.
ii) Revocation express or implied

 Grantor's duty:
i) to disclose defects.-The grantor of a license is bound to disclose to the
licensee any defect in the property affected by the license, likely to be
dangerous to the person or property of the licensee, of which the grantor
is, and the licensee is not, aware.
ii) Grantor's duty not to render property unsafe.-The grantor of a license is
bound not to do anything likely to render the property affected by the
license dangerous to the person or property of the licensee.
 Grantor's transferee not bound by license.-When the grantor of the license
transfers the property affected thereby, the transferee is not as such bound by the
license. `
 License when deemed revoked.
A license is deemed to be revoked-
(a) when, from a cause preceding the grant of it, the grantor ceases to have any
interest in the property affected by the license:
(b) when the licensee releases it, expressly or impliedly, to the grantor or his
representative:
(c) where it has been granted for a limited period, or acquired on condition that it
shall become void on the performance or non-performance of a specified act, and
the period expires or the condition is fulfilled:
(d) where the property affected by the license is destroyed or by superior force so
permanently altered that the licensee can no longer exercise his right:
(e) where the licensee becomes entitled to the absolute ownership of the property
affected by the license:
(f) where the license is granted for a specified purpose and the purpose is
attained, or abandoned, or becomes impracticable:
(g) where the license is granted to the licensee as holding a particular office,
employment or character, and such office, employment or character ceases to
exist:
(h) where the license totally ceases to be used as such for an unbroken period of
twenty years, and such cessation is not in pursuance of a contract between the
grantor and the licensee:
(i) in the case of an accessory license, when the interest or right to which it is
accessory ceases to exist.
 Licensee's rights
i) on revocation.-Where a license is revoked, the licensee is entitled to a
reasonable time to leave the property affected thereby and to remove any
goods which he has been allowed to place on such property.
ii) Licensee's rights on eviction.-Where a license has been granted for a
consideration and the licensee, without any fault of his own, is evicted by
the grantor before he has fully enjoyed, under the license, the right for
which he contracted, he is entitled to recover compensation from the
grantor.