DOCTINE OF LIS PENDENS

Introduction
Lis pendens is a Latin word that means “pending litigation”.
It is based on a legal maxim “pendente lite nihil innoveture” which means nothing new should be introduced
during pendency of a litigation.
 Lispendens’ generally means the pendency of a suit before a Court of Law. The subject matter of the
suit should not be transferred to any third party when the suit is pending.
If one of the parties to the suit transfers the immovable property which is the subject matter of the suit, then
the transferee is bound by the suit’s result or proceeding.
- For e.g.: If ‘A’ and ‘B’ have a pending case before a Court with regard to the ownership of a house
and, if ‘B’ transfers the house to ‘C’ during the pending period, the transferee i.e., ‘C’ should return the
house to ‘A’ if ‘A’ wins the case.
The doctrine of lis pendens is enshrined under Section 52 of the Transfer of Property Act, 1882 (TOPA), in
India.
This section deals with the effect of transfer of property pending a suit or proceeding.
It is based on equity and public policy.
Definition:
One of the most fundamental rights of a property owner is the freedom to transfer or dispose of their
property as they see fit. However, certain circumstances, such as when a legal dispute or action involving the
property is ongoing, may restrict or prohibit the owner from selling or otherwise disposing of the property
for a specified period.
The legal framework governing such situations is encapsulated in Section 52 of the Transfer of Property Act
of 1882.
Section 52 of Transfer of Property Act, 1882 reads as:
“52. Transfer of property pending suit relating thereto.—During the 1[pendency] in any Court having
authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond
such limits] by 4[the Central Government 5***] of 6[any] suit or proceeding 7[which is not collusive and]
in. which any right to immoveable property is directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any
other party thereto under any decree or order which may be made therein, except under the authority of the
Court and on such terms as it may impose.”
Section 52 of Transfer of Property Act of 1882 delineates conditions under which property transfers
are permissible. These conditions may include instances where the court grants explicit permission or when
the lawsuit itself has an element of collusion. Exceptions to the doctrine encompass lawsuits primarily
seeking monetary compensation for debts or damages, as well as those aimed at the recovery of personal
property.
Bellamy Vs. Sabine
‘A’ filed a suit impeaching the sale of an estate by E to S to which F is the heir. During pendency, S
transferred it to B who did not know about the suit. Judgement was given in favour of F. It was held that B,
the alienee from S is bound by the decision and he had to return the estate of F, eventhough he was aware of
the suit. This is known as ‘Doctrine of Bellamy Vs. Sabine’
What is the Purpose of Lis Pendens?
 The underlying principle behind the doctrine of lis pendens is to protect the rights of
parties involved in a legal action and prevent parties from transferring the subject matter of a
dispute during the pendency of a suit in a way that might frustrate the final outcome of the litigation.
 The doctrine is based on the idea that a third party acquiring an interest in the property during the
pendency of a suit should be bound by the outcome of that suit.

What is Concept Void Transfer under Lis Pendens?

 When a suit or proceeding is pending in any court and an immovable property is the subject matter
of that suit or proceeding, any transfer of that property by any party to the suit or proceeding
is void against any person acquiring an interest in the property under the decree or order resulting
from that suit or proceeding.
 The transfer referred to in the section is void as against a subsequent transferee from the date of the
institution of the suit or proceeding.
 This means that if a person transfers an immovable property while a suit is pending, and another
person acquires an interest in the property as a result of the court's decision in that suit, the transfer
made during the pendency of the suit will be considered void.

ESSENTIALS OF LIS PENDENS

1. Transfer during pendency of a suit or preceding:
The transfer should take place during the pendency of a suit or proceeding. The ‘doctrine of lispendens’
applies to both exparte proceedings and to compromise proceedings in a suit.
2. Pendency in a Court of compentent jurisdiction:
The suit must be pending before a Court of competent jurisdiction. If a suit is not filed before a Court of
competent jurisdiction, it is not considered as a pending suit.
3. Transfer without the authority of court:
Transfer made by one of the parties to the litigation must be without the authority of the court.
4. Right to property must be in question:
Such pending suit should be with regard to right to the immovable property. The right over the
immovable property should be directly and specifically in question in the suit or proceeding. Suit for
specific performance of a contract, suit on mortgage, partition, suit for preemption, etc., are included in this
category.
5. Bonafide suit:
The suit should not be collusive. The doctrine is not applicable to collusive suit or suit in which the
decree is obtained by fraud. A collusive suit is not a real suit. It is preplanned to affect the defendants.
6. Transfer before filing the suit:
The property in the suit must be transferred during such tendency. A transfer before the filing of suit is
valid and it is not affected by the lispendence doctrine.
7. Transfer - to affect the right of the other party:
The alienation (transfer) should affect the rights of the other party. This doctrine does not apply where
the rights of the transferor alone is affected and not the transferee of the suit.
Nagubai Ammal Vs. B.Shama Rao, AIR 1956 SC 593:
A transfer of, or a dealing with the property by a party to a suit during the pendency of the suit or
proceeding is not ipso facto void. It can only affect the rights of any other party to the suit under any decree
or order that may be made in the suit or proceeding.
It is further held that the doctrine of lis pendens cannot be availed of by the transferor and it is really
intended for the protection of the party, that is, the party in the suit other than the transferor.
Dev Raj Dogra Vs. Gyan Chand Jain, AIR 1980 SC 981 (986-87)
The Supreme Court has observed that Section imposes a prohibition on transfer of, or otherwise
dealing with any property during the pendency of a suit provided the conditions laid down in the Section are
satisfied.

What are the Exceptions of Lis Pendens?

While the specified conditions must generally be met for the doctrine of Lis Pendens to be
applicable, there are exceptions,
 The section does not affect the enforcement of a judgment or decree or order in a suit or proceeding
in which such transfer is not contested.
 The doctrine does not apply to suit where property is unidentifiable.
 The doctrine does not apply to collusive suits.
Vinod Seth v. Devinder Bajaj, the court, after a thorough examination of the case’s facts and
circumstances, determined that it was appropriate to exempt the case from the Lis Pendens
doctrine, provided that security was provided. In this specific instance, upon providing a security
deposit of Rs. 3,000,000, the court allowed the defendants to sell the property even while the case
was still pending.
EFFECT OF LIS PENDENS
1. It does not invalidate or avoid the transfer.
2. It merely makes the transfer, subject to the result of the pending litigation.
3. No noticeis necessary to the purchaser, because lis pendency itself acts as a constructive notice.
4.Even if the purchaser is a bonfide person and without notice of pending suit, he is still affected by the
doctrine.

Cases on Doctrine of Lis Pendens

In the case of Faiyaz Hussain v. Munshi Prag Narrain, the Privy Council followed the theory
established in the case of Bellamy v. Sabine. They emphasized the importance of reaching a final
adjudication in legal matters and observed that failing to do so would result in endless litigation.

In the case of Iqbal Singh v. Mahendar Singh, the High Court of Delhi held that once arbitration
proceedings commence, the suit property becomes sub-judice, and any transfer made during the
pendency of arbitration proceedings would be subject to Section 52 of Transfer of Property Act.

The High Court of Punjab and Haryana, in the case of Swaran Singh v. Arjun Singh and
Ors., stated that the doctrine of lis pendens will apply to arbitral proceedings if the award holds
the status of a decree enforceable in a court of law.

The impact of a judgment on parties involved in property transfers during a pending suit was
addressed in the case of Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal, Tek Chand. It
was explained that the lis pendens rule binds the person who acquires property during the
pendency of a suit to the judgment that might be rendered against the individual from whom they
derived their title, even if such a buyer was not directly involved in the lawsuit or had no prior
notice of the pending litigation. The primary aim of this doctrine is to provide the court with broad
oversight over property transfers in ongoing lawsuits.

The meaning of lis pendens was further clarified in the case of Kn. Aswathnarayana Setty v. State
of Karnataka & Ors., where it was noted that this principle is grounded in justice, equity, and
good conscience. It is based on a fair and equitable foundation, as allowing property transfers to
prevail during litigation would make it impossible to bring a legal action to a successful conclusion.
Parties involved in litigation are not expected to take notice of titles acquired during the pendency
of the lawsuit.
The Supreme Court, in the case of Hardev Singh v. Gurmail Singh, clarified that Section 52 does
not declare a transfer made by a party to a pending suit as void or illegal but rather makes that
party bound by the judgment that may be issued.

The High Court of Madhya Pradesh, in the case of Gouri Datt Maharaj v. Sheikh Sukur
Mohammed & Ors., highlighted the underlying principle of Section 52 of Transfer of Property Act.
This section is intended to maintain the status quo, ensuring that it remains unaffected by the
actions of any party involved in the pending litigation.

CONCLUSION
The doctrine affects the transferee not because that it amounts to notice, but because that it does not
want to prejudice the rights of the opposite parties. The introduction of this doctrine in the Transfer of
Property Act is considered to be an appreciable and welcome step to protect the rights of the parties to the
dispute.
In the words of Supreme Court in Jayaram Mudaliar Vs. Ayyaswami and others, AIR 1973 S.C. 569:
‘The purpose of Sec. 52 of the T.P.Act is not to defeat any just and equitable claim but only to subject them
to the authority of the Court which is dealing with the property’.

DOCT OF ELECTION
Introduction to Doctrine of Election
Election means choosing between two alternative rights. If two rights are endowed on a person under
any instrument in such a manner that one right is more preferable than the other, he is bound to elect or
choose only one of them. Section 35 of the Transfer of Property Act, 1882 deals with Doctrine of election.
It subsumes the Doctrine of election along with Sections 180-190 of the Indian Succession Act 1925.
If a person transfers some property (movable or immovable) in which he has no right to transfer, and in the
same transaction, confers any benefit on the owner of the property, such owner must elect either to confirm
such transfer or reject it.
If he rejects the transfer, he relinquishes the benefit conferred upon him and the property will revert back to
himself or his representative as if it had not been disposed of.
Definition
Doctrine of Election
Section 35 of the Transfer of Property Act, 1882 incorporates the Doctrine of election alongside
Section 180-190 of the Indian Succession Act 1925.
Election simply means choosing between two alternative rights or inconsistent rights. Under any instrument
if two rights are conferred on a person in such a manner that one right is in lieu of the other, he is bound to
elect (choose) only one of them. One cannot take under and against the same instrument.
{[Where a person professes to transfer property which he has no right to transfer, and as part of the same
transaction confers any benefit on the owner of the property, such owner must elect either to confirm such
transfer or to dissent from it; and in the latter case he shall relinquish benefit so conferred, and the benefit so
relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject
nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the
charge of making good to the disappointed transferee the amount or value of the property attempted to be
transferred to him. The rule in the first paragraph of this section applies whether the transferor does or does
not believe that which he professes to transfer to be his own. A person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need not elect. A person who in his own capacity takes
a benefit under the transaction may in another dissent there from. [i]}]
Theme behind Section 35-
Allegans contraria non est audiendus : he is not to be heard who alleges things contradictory to each other.
Understanding the Doctrine of Election
This doctrine is universal in nature and is applicable to Hindus, Muslims, Christians. This doctrine
consists of the principle of a person exercising a choice out of his own free will to do one thing and is
founded on the equitable doctrine that he who accepts the benefit under an instrument or transaction of its
choice must adopt the whole of it or renounce everything. [ii]
This principle was determined in the case of Codrington v Codrington (1857) 7 HL 854, 861.
Essential Conditions for application of the Doctrine of Election
From the case of Dhanpati v. Devi Prasad and others (1970) (3) SCC 776 (778), it was determined
that before election following conditions must be fulfilled-
1. A person having no right to transfer, transferring property
2. He must transfer some benefit on the owner of the property, as part of the same transaction
3. The owner must elect either to confirm the transfer or to dissent from it.[iii]
Effect of election against the transfer-
Where the owner dissents from the transfer of his property –
1. He must forgo the benefit
2. The benefit contemplated for him would then go back to the transferor.
Election when necessary (section 35)
 Concede to transfer property on which he has no rights.
 In the same transaction, they must elect either to accept it or not, in case he doesn’t.
 He must release the benefits till then.
 The benefits he had till then goes back to the transferor as if not given.
Although when benefit is transferred back, he must make some good to the transferee at least it can be done
in the following cases:

 Where the transfer is voluntary and the Transferor had died or had become incapable of doing a fresh
transfer.
 Transfer is for consideration.
Example: The farmhouse at Udaipur is a property of C. A by gift means promises to give B 1,00,000. He
accepts it although C now wants to retain his farmhouse and A forfeits his gift. In such a course of action B
died, now his representative must pay C 1,00,000.
Who doesn’t have to elect?
The person who indirectly derives benefits from the transactions and not directly according to section
35 does not need to elect.
Example:: A promises to give B 1000 given if his son buys C’s house for 1200, Nowhere n’s son doesn’t
have to elect as it is B who will have to make the decision on what to do.
When does a person elect to dissent?
According to section 35 If the owner decides not to approve the transfer, he will surrender the transferred
service to him and this service will be returned to the transferor or his representative as if he had not been
released. Following could take place:
 The transfer is voluntary and the Transferor had died or had become incapable of doing a fresh
transfer.
 In all cases where the transfer must be checked, it is the responsibility of the transferor or his
representative to compensate disappointed buyers. The compensation amount is the amount or value
of the property that will be transferred if the option.
Time limit for election
According to section 35, when the owner of the property within one year after the date of transfer
signifies to either transferor or his representative. Even if they know the expiration period and even after
knowing from their representatives does not make a decision they are deemed to have elected to confirm the
election if they don’t reply after the period is over.

Election by a disabled person, a disabled person cannot do election until and unless:
 His disability ceases.
 Someone else on his behalf makes election who is not disabled.
Applicability
Hindu Law
The doctrine was directly applied in the case of Mangaldas v.
Runchhoddas.
Mahomeden Law
The doctrine was applied by the Privy Council in the case of Sadik Hussain
v.Hashim Ali.
English Law
In this respect the English law is different because there the done electing against the instrument does not
incur a forfeiture of the benefit conferred on him by it , but is merely bound to make compensation out of it
to the person disappointed by his election.
Modes of Election
The election by the owner can either be direct or indirect.
In direct election, one just needs to simply communicate about the elected choice or option. Though, in case
of an indirect election, the acceptance of the benefit by the owner is subject to two conditions:
1. He has to have the knowledge of his responsibility to elect.
2. There must be proof of knowledge of circumstances which would influence the judgment of a prudent
man to make an election. [v]
The election shall be presumed when the donee acts in such a manner with the property gifted to him that it
becomes impossible to return it to the original owner in its original state.
Exceptions to Doctrine of Election
Where a particular benefit is expressed to be conferred on the owner of the property which the
transferor possesses to transfer, and such benefit is in lieu of that property, if such owner claims the
property, he is not bound to relinquish any other benefit that he achieves through the same transaction.
The acceptance of the benefit by the original owner will be considered to be an election by him to confirm
the transfer, if he is aware of his duties and responsibilities and of the circumstances that might influence a
prudent (reasonable) man into making an election.
This knowledge of the circumstances can be assumed if the person who gets the benefit enjoys it for a period
of more than two years without doing any act to express dissent.
The transferor would ask him to elect his choice, if the original owner does not elect his option within a year
of the transfer of property. Even after the reasonable time, if he still does not elect, the original owner shall
be presumed to have elected the validation of the property transfer as his choice.[iv]
In context of a minor, the period of election shall be adjourned till the individual attains majority unless he is
represented by a guardian.
Conclusion
Section 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine of Election.
This article deals with the various gradations involved in the doctrine through the usage of various landmark
judgments. A special emphasis has been conferred upon the conditions necessary for the election by the
original owner. The differences between the Indian Law perspective as well as the English Law perspective
are mentioned here to critically analyze the provisions i.e. Principle of forfeiture and Principle of
compensation. The foundation of the doctrine of election is that the person taking a benefit under an
instrument must also bear the burden. In simple words, a person cannot take under and against one and the
same instrument.

TRANSFER BY OSTENSIBLE OWNER

Introduction
The Transfer of Property Act, 1882, outlines laws governing the transfer of property, emphasizing
the rights of real owners, ostensible owners, and third parties. While the Act doesn’t cover transfers through
gifts, succession, inheritance, or testamentary, it aims to streamline property transfers for the public. Section
41 of the Act establishes the principle of transfer of property by ostensible owner, designed to protect the
rights of innocent third parties.
Definition of Ostensible Owner
An ostensible owner is an individual who appears to be the rightful owner of a property, possessing
indicia of ownership such as being listed on records and having physical possession. However, the
ostensible owner lacks the genuine intent to own the property.
The concept, governed by Section 41 of the Transfer of Property Act, 1882, recognizes transfers made by
such ostensible owners with the consent of interested parties. The transfer is deemed valid for consideration,
and it is not voidable based on the lack of authorization by the ostensible owner.
This protection is contingent on the transferee acting in good faith and taking reasonable care to confirm the
transferor’s authority, ensuring a fair balance between property rights and the interests of innocent
transferees.
Understanding Section 41 of the Transfer of Property Act
Section 41 of the Transfer of Property Act, 1882 addresses the transfer of property to an ostensible
owner. It states that when an individual acts with the express or implied consent of the true owner of a
specific immovable property, that individual is recognized as the ‘ostensible owner’ of the property.
Conditions for Lawful Transfer by Ostensible Owner
1. The transferor must be the ostensible owner of the property, holding it with the consent of the real
owner.
2. The transfer must be for consideration, and the transferee must take reasonable precautions to
ascertain the transferor’s authority, acting in good faith.
3. Express or implied consent of the real owner is necessary for ostensible ownership.
4. The transfer must be made for something in return (consideration).
5. The transferee must exercise reasonable care and act with bona fide intention.
6. Lack of reasonable care by the transferee impacts the application of Section 41.
7. The transferee must demonstrate standard title investigation, and if the title is obvious, no inquiry is
necessary.
8. Good faith is a crucial requirement, ensuring that the transferee acts honestly and conducts a
reasonable investigation into the transferor’s authority and title.
Burden of Proof
In cases where a transferee seeks immunity under Section 41, the burden of proof rests on the transferee to
demonstrate that they were dealing with an ostensible owner. They must establish that the transferor was
holding themselves out as the owner of the property or that the transaction was a Benami transaction.
Furthermore, the transferee must show that they took reasonable precautions to safeguard their interests. If
the other party claims to have evidence that would lead to the disclosure of the truth, the burden of proof
may shift to that party if they provide a starting point for inquiry. If a person claims ownership of property
that has been transferred to someone else, they must prove their claim.
The essential legal principle is that unless the true owner has done something to deceive innocent purchasers
or pledgees into believing that the immediate possessor is the actual owner, the true owner’s rights should be
protected prima facie. The true owner would need to demonstrate that the real owner has forfeited their right
to reclaim possession through their actions or omissions.
An Exception to the ‘Nemo Dat Quod Non Habet’ Rule
Section 41 introduces an exception to the general principle of ‘Nemo Dat Quod Non Habet,’ which means
that a person cannot transfer a better title to property than what they possess. Section 41 is a widely accepted
exception to this principle.
For instance, if the real owner entrusts the title documents of the property to a specific person in a
reasonable manner and makes that person an ostensible owner, then a third party who deals with the
ostensible owner in good faith and after conducting proper investigation may acquire a valid title to the
property, even against the real owner.
Benami Transactions and Section 41 of Transfer of Property Act
According to the Benami Transaction (Prohibition) Act of 1988, when a property is transferred
benami (under someone else’s name), the holder of the property becomes the genuine owner, with the
benamidar serving as a trustee.
The real owner can challenge such alienation only by proving lack of consent and the buyer’s awareness.
The Act prohibits legal actions or claims against the person in whose name the property is held or any other
claimant asserting real ownership.
Ownership rights of the true owner cannot be enforced against the benami owner due to legal provisions
such as the Benami Transaction (Prohibition) Amendment Act, 2016. This Act renders the transfer by an
ostensible owner illegal, with specific exceptions.
In Thakur Krishna vs. Kanhayalal, the court ruled that property held in the name of a benami owner is
subject to acquisition by the government’s competent authority without compensation. However, the 2016
Amendment Act outlines exceptions, including property held by the Karta or a member of an HUF for the
benefit of other HUF members, purchases by known sources for spouses or children, property held by a
trustee, and jointly held property with known individuals. These exceptions align with Section 41 of the
Transfer of Property Act, 1882.
Landmark Cases on Transfer of Property by Ostensible Owner
In the case of Md. Shafiqullah Khan v. Md. Samiullah Khan, the illegitimate sons of the
landowner acquired the property after his death, even though they were legally ineligible to possess
it. The legitimate heir, Muhammad Shafiqullah Khan, filed a lawsuit to claim his inheritance rights.
However, the illegitimate sons, acting as ostensible owners, sold the property to a third party,
Samiullah.
The lower court, considering Samiullah’s lack of knowledge about the lawsuit and his good faith, protected
him under Section 41 of the Act, barring Shafiqullah Khan from establishing his title. The Allahabad High
Court, in contrast, held that this did not meet the Section 41 requirement, as ownership was not obtained
with the express or implied consent of the lawful owner, thus denying the ostensible ownership status to the
illegitimate sons.
In the case of Ishwar Dass vs. Bir Singh and Ors. before the court, the plaintiff claimed co-
ownership of a piece of land along with proforma defendants. The dispute revolved around the extent of the
plaintiff’s share in the land. The plaintiff asserted a 1/3rd share, while the contesting defendants argued for a
1/6th share.
The land originally belonged to Saran Dass, who had two wives, Bimla Devi and Biasan Devi. The plaintiff
contended that, due to neglect by defendants 1 and 2 (sons of Biasan Devi), Saran Dass gifted the land to
Bimla Devi.
Defendants 1 and 2 challenged the gift, leading to a legal dispute that resulted in a partial dismissal of the
suit. The court addressed the issue of ostensible ownership within this context, evaluating the plaintiff’s
claim of co-ownership against the backdrop of the disputed gift and its legal implications.
Conclusion
Section 41 of the Transfer of Property Act acts as a safeguard for unsuspecting third parties, ensuring
the validity of property transfers made by ostensible owners with the consent of interested parties. However,
this protection is contingent upon the third party’s careful consideration and bona fide intentions, and it does
not excuse negligence in property acquisition.
The provision emphasizes the authority granted to ostensible owners by real owners, whether expressed or
implied, with legal constraints to prevent misuse. Property transfers, once executed, are irreversible at the
owner’s discretion, encompassing various forms such as mortgages, leases, sales, or exchanges. The burden
of proof lies with the transferee to demonstrate the ostensible owner’s status, reinforcing the need for due
diligence and cautious investigation.

FEEDING THE GRANT BY ESTTOPEL

Refer TNDALU MATERIAL
Essential Elements
Elements of the doctrine of feeding the grant by estoppel are as follows −
Fraudulent or erroneous representation of ownership
The transferor must make a dishonest or erroneous representation of being the actual owner or having the
power to transfer in order for this theory to apply. It makes no difference if it was done with good intentions.
All that is required is that a false representation was made and the transferee relied on it.
Transfer of consideration
It is important for the application of this theory that the transfer of property was done with some thought,
i.e., it had some value. That is not done when the transfer is made without consideration.
Option of the Transferee
At the transferee's option, the property is transferred. In the application of this concept, the transferee
determines the validity of a contract, and when the transferee makes the transfer valid, the transferor's title
becomes perfect.
Subsisting contract of transfer
The transfer contract must still exist in order for this theory to be applied. If the transferee cancels or
terminates the contract, the relationship between the transferor and transferee is ended, and no claims can be
brought against the property.
Exceptions to Section 43 of the TPA, 1882
Section 43 does not apply in the following circumstances −
 Cases in which no consideration is given
 If both parties were aware of the exact state of affairs about the transfer
 Execution sales
 If the transferee is not misled by the false or erroneous representation of the transferor,
 Gifts
 Transfers are not transferrable under the law.
Case Law
Muhammad Hayat v. Abdul Rahim, MLD 1524, 2001
The transfer contemplated by Section 43 of the TPA, 1882, must be the result of a dishonest or erroneous
misrepresentation. Otherwise, this part will be inapplicable.
Omar Ali Sheikh v. Shamsul Alam Mridha and Others, 55 DLR 257
If a person holds a partial interest in a property and transfers the largest interest for value, the transferee is
entitled to the interest thus obtained following a later purchase.
In the case of Rajapakse v. Fernando[3], the Privy Council observed that where the transferor has purported
to grant an interest in the property in which he did not have any interest at the time of transfer but he
subsequently acquires interest, the rule of estoppel applies against the transferor, if he subsequently acquires
that interest.
In Ram Bhawan Singh v Jagdish[4] the court observed that “when a person having a limited interest in the
property transfers a larger interest to the transferee on a representation, and subsequently acquires the larger
interest, the larger interest passes to the transferee at the latter’s option. This doctrine not only applies to sale
but also applies to a mortgage, lease, charge, and exchange. Where no grant or interest in immovable
property is involved, the doctrine would not apply. The doctrine also does not apply in cases where the
transferor has acquired interest not in the property which is the subject matter of the transfer, but in some
other property.
FRADULENT TRANSFER
Introduction
 Section 53 of the Transfer of Property Act, 1882 (TPA), pertains to fraudulent transfers and
principally concerns the intentional transfer of property with the aim of defrauding creditors.
 As outlined in Section 53, a property transfer is considered voidable, allowing any defrauded creditor
the option to void the transfer, unless the transferee acquired the property in good faith and for
valuable consideration.
 Additionally, the section outlines a procedure for nullifying such transfers.
 The section also provides a mechanism for setting aside the transfer.
Section 53 of the Transfer of Property Act
 Every transfer of immovable property made with intent to defeat or delay the creditors of the
transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-
section shall impair the rights of a transferee in good faith and for consideration.
o For example:– When ‘A’ transfers his property to ‘B’ without giving him his ownership of
the property with the intention to keep his assets out of reach of his creditor, such a transfer is
called a fraudulent transfer.
 A fraudulent transfer of property gives rise to a civil cause of action. The court may set aside a
fraudulent transfer at the request of the defrauded creditor.
Essentials
 The transferor carries out the conveyance of immovable property without receiving any
consideration.
 The purpose behind the transfer is to deceive a future transferee and hinder or postpone the rights
of creditors.
 This type of transfer can be void which means it is voidable at the discretion of the subsequent
transferee.
Exceptions
 Good Faith under Section 53(a):
o If the person receiving the property (transferee) acted in good faith and had no notice of the
fraudulent intent of the transferor, the transfer is not voidable.
o Good faith here implies an honest belief and lack of knowledge about any fraudulent
intention on the part of the transferor.
o If the transferee can prove that they acquired the property without any knowledge of the
fraudulent intent, the transfer may be considered valid.
 Insolvency of the Creditor under Section 53(b):
o Another exception is when the transferor was not rendered insolvent by the transfer, and the
transfer was made for adequate consideration.
o If the transferor remains solvent even after the transfer, and the transfer was made for a
legitimate purpose with adequate consideration, it may not be considered fraudulent even if it
prejudiced the creditor.
Framing of suit under fraudulent transfer
 Privity of contract is followed, which means that only the parties to the contract can sue. Hence, no
third party can sue on the creditor’s behalf who is not a party to the suit.
o The suit is instituted by the creditor on the ground that the transfer is made to defeat or delay
the creditors of the transferor.
 The suit is instituted in the representative category or for the benefit of all creditors.
o This is to avoid a multiplicity of suits against the same opposite party/parties on the same
subject. Dismissing a creditor’s lawsuit would be binding on all creditors.
The Burden of Proof
 Initial Burden on Creditors:
o Burden lies on creditors under Section 53 of TPA, 1882.
o They initiated legal action, attacking the debtor based on fraudulent transfer.
 Creditor's Assertion:
o The creditor must establish that the transfer was fraudulent.
o The aim is to show the transfer was intended to defeat or delay creditor's claims.
 Shift in Burden:
o Upon creditor's successful proof, burden shifts to the transferee.
 Transferee's Defense:
o A transferee must prove good faith in acquiring the property.
o Burden includes demonstrating bona fide purchase for value.
o Transferee must show non-involvement in the fraudulent transfer.
 Section as a Shield for Transferee:
o Transferees can use Section 53 as a defense mechanism.
o Protection against allegations of fraudulent involvement.
 Creditor's Use as a Sword:
o Section 53 serves as a legal weapon for creditors.
o Allows them to challenge and attack the debtor in case of fraudulent transfers.
Factors constituting Fraudulent transfer- In the case of Muniayammal vs. Thyagaraja (1958), the
court laid down the following factors relating to fraudulent transfer such as:

 Continuance of the transferor in possession of the property he has purported to transfer when such
continuance in possession is not in accordance with the tenor and object of the transfer
 Insolvency or indebtedness of the transferor
 Lack of consideration for the transfer
 Reservation of benefit to the transferor
 Relationship between the transferor and the transferee
 Pendency or threat of litigation, secrecy or concealment
 Transfer of the debtor’s entire estate, or substantially the whole of the estate
 The fact that the transfer is made after execution has been issued or a writ has been issued against the
transferor
Case Laws
 Karim Dad v. Assistant Commissioner (1999):
o If the whole transaction is based on fraud and misrepresentation, then no valid title can be
passed to the transferee by using a forged and fabricated deed.
 Musahar Sahu v. Lala Hakim Lal (1951):
o It will not be fraud if the debtor chooses to pay one creditor and leave others unpaid provided
that he must not retain any benefit.
In the case of Mahendra vs. Suraj Prasad (1957), the court held that the provisions of Section 53 of the Act
come into operation only where the document is fraudulent in the sense that, though the transfer is real, the
object was to defraud the creditors of the transferor.
In the case of V.S. Murthy vs. Laksho Narayana (1960), the court held that if a father transfers the property
to his son for a sum of Rs. 5000, while the debt due from the father to the son did not amount to even Rs.
4000, there is evidence of an intent to defraud creditors generally and the transfer will be hit by the section.
In case of Gharbhoya vs. Deodatta (1937), the court held that Section 53 doesn’t apply where the debtor
doesn’t retain any benefit for himself and if it is found that the transfer was for adequate consideration which
was entirely expanded in satisfaction of genuine debts of the debtor.
In the case of Jamnabai vs. Dattatraya (1936), the Bombay High Court held that Section 53 would not
apply when to the purchase of the property in the name of another as a bender.
In the case of Union of India vs. Rajeswari (1986), the court held that, the section would be exempted to the
transferor genuinely satisfied the debts by payment of sale proceeds.

PART PERFORMANCE
Introduction
The Doctrine of Part Performance is an equitable principle designed to prevent fraud and unlawful
exploitation resulting from the non-registration of a document. This doctrine operates under the maxim that
equity regards an action as if it has been done, which should have been done.
Essentially, the doctrine states that the transferor or any party claiming through them is barred from
enforcing any rights against the transferee and those claiming under them, regarding the property that the
transferee has taken possession of or continued to possess, except for rights explicitly provided for in the
contract terms.
What is the Doctrine of Part Performance under Section 53A?
The Doctrine of Part Performance is a legal principle recognised in property law. It is a doctrine that
allows for the enforcement of an oral or incomplete written contract to transfer immovable property if
certain conditions are satisfied. It is based on the principle of equity and aims to prevent injustice and fraud
resulting from non-compliance with formal requirements such as registration.
Under the Doctrine of Part Performance, if a person has taken possession of a property and has performed
acts in furtherance of a contract for the transfer of that property, they may be protected and allowed to
enforce their rights to the property. This is applicable even if the contract is not in compliance with the
formal requirements of the law. This doctrine serves as an exception to the general rule that contracts for the
transfer of immovable property must be in writing and registered.
The Doctrine of Part Performance in The Transfer of Property Act, 1882
The definition of the doctrine of part performance is incorporated in Section 53-A of The Transfer of
Property Act, 1882.
The section states:
“When any person contracts to transfer for consideration any immovable property by writing signed by him
or on his behalf from which the terms necessary to constitute the transfer can be ascertained with
reasonable certainty and the transferee has, in part performance of the contract, taken possession of the
property or any part thereof or the transferee, being already in possession, continues in possession in part
performance of the contract and has done some act in furtherance of the contract and the transferee has
performed or is willing to perform his part of the contract, then, notwithstanding that where there is an
instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the
law time being in force, the transferor or any person claiming under him shall be debarred from enforcing
against the transferee and persons claiming under him any right in respect of the property of which the
transferee has taken or continued in possession, other than a right expressly provided by the terms of the
contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no
notice of the contract or of the part performance thereof.”
Illustration:
Consider a scenario where A enters into a contract with B to sell his immovable property and allows
B to take possession of the property even before the formal sale deed is executed. This contract is considered
partially performed.
However, if A later refuses to fulfil his obligation of executing the proper sale document and instead files a
lawsuit against B, treating B as a trespasser and seeking eviction, B can oppose A’s claim. B can argue that
the contract of transfer in his favour has already been partially performed and A should not be allowed to
backtrack on his own agreement.
Ingredients of Section 53-A for Doctrine of Part Performance
In the case of Kamalabai Laxman Pathak v. Onkar Parsharam Patil, the Bombay High Court has
emphasised the requirements outlined in Section 53-A for the application of the Doctrine of Part
Performance. These requirements are as follows:
Contract for Transfer of Immovable Property
The first condition for the application of the Doctrine of Part Performance is the existence of a
contract for the transfer of immovable property in exchange for value.
Written Contract
The contract must be in writing. If the contract for transfer is oral, Section 53-A does not apply. In
the case of V.R. Sudhakara Rao v. T.V. Kameswari, it was ruled that the benefits of Section 53-A cannot
be claimed by a person who possesses property based on an oral agreement of sale. It is not sufficient for the
contract to be in writing; it must also be duly executed, meaning it should be signed by the transferor or
someone on their behalf.
Valid Contract
Section 53-A only applies to contracts that are valid in all respects. The agreement must be
enforceable by law under the Indian Contract Act, 1872.
Immovable Property
This section applies solely to the transfer of immovable property. It does not extend to agreements for the
transfer of movable property, even if supported by consideration. The defence of Part Performance is not
available in relation to the possession of movable property (Hameed v. Jayabharat Credit & Investment
Co. Ltd and Ors.).
Transfer for Consideration
The requirement for the application of Section 53-A is a written contract that involves the transfer of
immovable property in exchange for consideration. The written contract, which serves as the basis for the
possession of the property, must clearly indicate the intention to transfer the property. If the document is
vague or unclear, Section 53-A cannot be applied. It is crucial that the terms of the written contract can be
determined with reasonable certainty (Hamida v. Humer and Ors.).
Possession in Furtherance of Contract
In order to invoke Section 53-A, the transferee must have taken possession of the property or
continued to possess it as part performance of the contract. Alternatively, the transferee must have
undertaken some action that advances the execution of the contract (A.M.A Sultan (deceased by LRs) and
Ors. v. Seydu Zohra Beevi).

Some Act in Furtherance of the Contract

Taking possession alone is not the only method of part performance. If the transferee is already in
possession of the property, they must perform some additional act in furtherance of the contract after its
execution (Nathulal v. Phoolchand).
The Willingness of Transferee to Perform their Part of the Contract
Section 53-A is rooted in the principle of equity, which states that one who seeks equity must do
equity. Therefore, for a person to claim the protection of their possession under Section 53-A, their own
conduct must be fair and just. It is an essential requirement for the applicability of this section that the
transferee demonstrates a willingness to fulfil their obligations under the contract (Sardar Govindrao
Mahadik and Anr. vs. Devi Sahai and Ors Govind).
Scope of Doctrine of Part Performance
The Doctrine of Part Performance applies solely to written and valid contracts. It does not extend to
oral or void agreements. The contract must be in writing and signed by the transferor. The transferee must
have taken possession of the property as part performance of the contract and they must be prepared and
willing to fulfill their obligations.
This section is applicable not only to contracts of sale but also to any contracts involving the transfer of
property for consideration. It has been established in the case of Jacobs Private Limited vs. Thomas
Jacob that the doctrine is intended to be used as a defensive measure rather than an offensive one.
The Exception to Doctrine of Part Performance
The proviso to Section 53-A of Transfer of Property Act includes an exception in favour of a
transferee for consideration who has no knowledge of the contract or its part performance. This implies that
a transferee who acquires the property for consideration without any knowledge of the contract or its
execution is not affected by this rule.
Any rights the transferee may have against the transferor under this section would not be enforceable against
a bona fide transferee for value who has no knowledge of the previous transaction.
In the case of Hemraj v. Rustomji, the Supreme Court held that the proviso to the section protects the
rights of a transferee for consideration. In other words, any rights that the transferee may have based on the
unregistered document and the part performance of the contract would not be enforceable against a bona fide
transferee for value who had no knowledge of the prior transaction. The burden of proof lies on the person
claiming the benefits of part performance to demonstrate that the subsequent transferee had knowledge of
the previous transaction.
The Supreme Court has ruled that the right under Section 53-A is not defeated by the fact that the time for
filing a lawsuit for specific performance of the agreement of sale has expired or that the claim of acquiring
title through adverse possession has been rejected, which renders the possession illegal.
The principle established in Walsh v. Lonsdale states that Section 53-A incorporates three principles
of equity:
(i) One who seeks equity must act equitably.
(ii) Equity considers the intention rather than the form.
(iii) Equity treats as completed what should have been completed.
Conclusion
The Doctrine of Part Performance, as enshrined in Section 53A of TPA plays an important role in property
law in India. It provides protection to transferees who have partially performed agreements for the transfer
of property, even if the agreements do not comply with formal legal requirements.
SALE

Introduction, Definition, Modes of Effecting a Sale, Essentials (TNDALU)

1. Essentials of sale
A. Parties to sale
B. Subject matter of sale
C. Price or consideration
D. Transfer or conveyance

Liabilities/Duties of seller before completion of the sale: S55 (1)

A. S55 (1)(a): to disclose material defects in the property or in the seller's title thereto
- Seller is under duty to disclose all material facts in the property.
- A prudent buyer may not be able to see the defects
- Defect may wrt property, seller’s title to the property or restrictions attached to the
land, ex. Easementary right
- If the buyer discovers the material defect, before completion of sale, he may rescind
the contract
- If the buyer discovers the material defect, after completion of sale, he may claim
damages and sue for setting aside the sale
B. S55 (1)(b): to produce title deeds
 - The buyer shall satisfy himself regarding the title to the sale property
C. S55 (1)(c): to answer questions as to title
- The seller has an obligation to answer all the questions posed by the buyer regarding
the sale property
- The buyer may waive his right to inquiry
D. S55 (1)(d): to execute conveyance
- Seller must execute an instrument of transfer in favour of the buyer
- Such an instrument is called a sale deed
- The seller shall execute the sale deed after he has received the price fixed by the buyer
E. S55 (1)(e): to take care of the property
- From contract to delivery of the property, seller shall take care
- He acts as a trustee of the property for the buyer during this period
F. S55 (1)(g): to pay outings
- Seller must transfer the property free from any charges
- He must pay all public charges and rent wrt the property

2. Liabilities of seller after completion: S55 (2) and (3)

A. S55 (1)(f): To give possession
- The seller shall handover the possession on completion of sale
- May withhold the possession if price is due
- If the possession is passed to the buyer, unpaid seller may sue for the price money
B. S55 (2): to covenant for title impliedly:
- The sale deed is conclusive proof that the seller is the owner of the property and has
the right to transfer
C. S55 (3): to deliver title deeds on receipt of price
- Seller shall pass the title deed of the subject matter of the sale to the buyer
- He shall surrender any documents which are in his possession wrt the property

3. Rights of seller before completion of sale:

A. Seller is the owner until ownership is passed to the buyer
B. Has the right to claim rent and profits wrt property
C. Mere contract of sale does not create any interest of the buyer in the property

4. Rights of seller after completion of sale: S55 (4)

A. Seller’s lien: S55 (4)(b) if the sale is completed by conveyance but the price is not fully paid,
the seller acquires a charge on the property for the unpaid price
B. It is a statutory, non possessory charge as it arises when the vendor has parted with the
possession
C. This charge may be excluded by express contract or waived expressly/impliedly
D. The charge can be enforced u/s 100, TP Act
E. If a property subject to encumbrance is sold by the seller, the liabilities are limited till the
date of sale following which the buyer is responsible to discharge the encumbrance

5. Buyer’s liabilities before completion of sale

A. S55(5) (a): to disclose facts materially increasing the value of the property
Buyer must disclose to seller any fact as to the nature or extent of seller’s interest in the property
Such a duty arises only
- If the buyer knows or has reason to believe that the seller does not know the nature
and extent of his interest
- If the fact materially increases the value of the property
- In Summers v. Griffith, a woman, sold her property at one fourth of its face value
believing that she could not make out a good title whereas the buyer knew she could
and concealed it. It was held that the buyer had no duty to disclose a latent advantage
of the property.
B. S55 (5)(b): to pay the price
 - Generally a buyer’s duty to pay and seller’s duty to convey are performed
concurrently
- A buyer may retain out of the price money a sum sufficient to pay off an encumbrance
on the property
- A buyer may file a suit against the seller to recover the difference if he pays for an
encumbrance, as affirmed in Mehtab Singh v. collector of Saharanpur

6. Buyer’s liabilities after completion of sale

A. To bear loss to the property
- If any loss is incurred after the sale due to accidental destruction or deterioration, the
loss is to be borne by the buyer
B. S55 (1)(g): to pay the outings
- Myst pay charges and taxes that accrue wrt the property from the date of sale

7. Rights of the buyer before completion of sale: Buyer’s lien “S55 (6)(b)”
- Buyer has a charge on the amount paid by him in advance on account of the purchase money
if the seller fails to complete the sale
- The lien entitles him to a charge on the prepaid money and interest thereon
- The charge is lost if the buyer has improperly declined to take delivery on the property
- The lien is forfeited if the contract is called off due to the default of the buyer
- If the contract is called off due to the default of the seller, buyer may claim a refund of the
advance paid

8. Rights of the buyer after completion of sale

- Buyer may make improvements after his purchase
- The increase in the value of the property due to such improvements may be enjoyed by the
buyer
- This is in the form of rents and profits

9. Caveat Emptor: Let the buyer beware

- It is not the duty of the seller to point out the defects in the goods but is liable to do so when
the buyer completely relies on the seller
- The maxim applies only to patent (visible to the eye), not latent material defects
- The maxim does not apply to defects in the title

GIFT
Introduction
A gift is a voluntary transfer of ownership when the donor transfers ownership without compensation or
consideration of monetary value. In some cases, the property is involved or the parties are two living
persons, or the transfer is made only after the transferor’s death. When a transfer takes place between two
living people, it is said to be a mutual life, and when it takes place after the transferor’s death, it is said to be
a will. Since the transfer of a will is outside the scope of Section 5 of the Property Transfer Act (Act) of
1882, this law is only relevant for the transfer between gifts of creatures.
Definition of Gift
Gifts are a form of property transfer.
Gifts are defined in Section 122 of the Act as an existing or transfer of an existing property. Such transfers
must be voluntary and uncompensated. The sender is the sender and the recipient is the sender. The recipient
must agree to receive the gift. In this section, gifts are defined as a free transfer of ownership of existing
property. The concept includes the transfer of both immovables and immovables.
Parties to a Gift Transfer
Donor- Donors must be competent. That is, you need to have both the knowledge and the authority to
donate. If the donor is legally competent, he is considered able to donate. This means that the donor must be
legally competent and have reached the legal age at the time of donation. Associations, companies and
companies that are registered and allowed to donate are called legal entities.
Gifts from minors or insane people are invalid. In addition to ability, donors must also have the legal right to
donate. Since the gift is a transfer of ownership, the donor’s claim will be incurred from the ownership at the
time of the transfer.
Donee- To contract, Donee does now no longer want to be able. He will be any residing man or woman at
the time the donation is made. A present introduced to a loopy person, a minor, or maybe a toddler inside the
mother`s womb is suitable if it’s miles lawfully commonplace on his or her behalf with the aid of using an
able person.
Competent donees are juristic people inclusive of firms, institutions, or corporations, and presents given to
them are legitimate. The donee, on the opposite hand, needed to be someone who may be identified. The
trendy public’s present is null and invalid. The donee will be extra human beings if those records are
available.
Essential Elements Of Gift:
Parties to the gift - There must be two parties i.e. the donor and the donee. The transferor is called the
donor and he must be a competent person (competency as defined in Indian Contract act 1872). The
transferee is called the donee and he need not be competent to contract.
A gift made to a minor or an insane person or even if it is made to an unborn person is valid and can be
accepted by their guardian.

Transfer of ownership: When a property is transferred through gift, the right created in favor of donee is an
absolute right i.e. ownership of property is transferred.

Subject matter: The subject matter of gift can be moveable or immovable property, but it should be in
existence and the donor should have vested right in that property and not contingent.

Without consideration: A gift must be gratuitous i.e. without consideration. It must be a pecuniary
consideration.

Voluntarily: It must be made with donors free will and free consent without any force, coercion, undue
influence. If it is not done voluntarily then the gift is void. Voluntarily done also means that donor had full
knowledge about the transaction and its nature.

Acceptance of gift: A gift must be accepted by the donee. Acceptance made can be expressed or implied but
it must be accepted before the death of the donee and before the revocation by the donor.
Modes of making a gift
Section 123 of the Transfer of Property Act deals with the formalities necessary for the completion of a gift.
The gift is enforceable by law only when these formalities are observed. This Section lays down two modes
for effecting a gift depending upon the nature of the property. For the gift of immovable property,
registration is necessary. In case the property is movable, it may be transferred by the delivery of possession.
Mode of transfer of various types of properties are discussed below:
Immovable properties
In the case of immovable property, registration of the transfer is necessary irrespective of the value of the
property. Registration of a document including gift-deed implies that the transaction is in writing, signed by
the executant (donor), attested by two competent persons and duly stamped before the registration
formalities are officially completed. In the case of Gomtibai v. Mattulal, it was held by the Supreme Court
that in the absence of written instrument executed by the donor, attestation by two witnesses, registration of
the instrument and acceptance thereof by the donee, the gift of immovable property is incomplete.
The doctrine of part performance is not applicable to gifts, therefore all the conditions must be complied
with. A donee who takes possession of the land under unregistered gift-deed cannot defend his possession
on being evicted. The following must be kept in mind regarding the requirement of registration:
 Registration of the gift of immovable property is must, however, the gift is not suspended till
registration. A gift may be registered and made enforceable by law even after the death of the donor,
provided that the essential elements of the gift are all present.
 In case the essential elements of a valid gift are not present, the registration shall not validate the gift.
It has been observed by the courts that under the provisions of the Transfer of Property Act, Section 123,
there is no requirement for delivery of possession in case of an immovable gift. The same has been held in
the case of Renikuntla Rajamma v. K. Sarwanamma that the mere fact that the donor retained the right to use
the property during her lifetime did not affect the transfer of ownership of the property from herself to the
donee as the gift was registered and accepted by the donee.
Movable properties
In the case of movable properties, it may be completed by the delivery of possession. Registration in such
cases is optional. The gift of a movable property effected by delivery of possession is valid, irrespective of
the valuation of the property. The mode of delivering the property depends upon the nature of the property.
The only things necessary are the transfer of the title and possession in favour of the donee. Anything which
the parties agree to consider as delivery may be done to deliver the goods or which has the effect of putting
the property in the possession of the transferee may be considered as a delivery.
Actionable claims
Actionable claims are defined under Section 3 of the Transfer of Property Act. It may be unsecured money
debts or right to claim movables not in possession of the claimant. Actionable claims are beneficial interests
in movable. They are thus intangible movable properties. Transfer of actionable claims comes under the
purview of Section 130 of the Act. Actionable claims may be transferred as gift by an instrument in writing
signed by the transferor or his duly authorised agent. Registration and delivery of possession are not
necessary.
Provisions relating to onerous gifts
Onerous gifts refer to the gifts which are a liability rather than an asset. The word ‘onerous’ means
burdened. Thus, where the liabilities on a property exceed the benefits of such property it is known as an
onerous property. When the gift of such a property is made it is known as an onerous gift, i.e., a non-
beneficial gift. The donee has the right to reject such gifts.
Section 127 provides that if a single gift consisting several properties, one of which is an onerous property,
is made to a person then that person does not have the liberty to reject the onerous part and accept the other
property. This rule is based upon the principle of “qui sentit commodum sentire debet et onus” which implies
that the one who accepts the benefit of a transaction must also accept the burden of it. Thus, when two
properties, one onerous and other prosperous, are given in gift to a donee in the same transaction, the donee
is put under the duty to elect. He may accept the gift together with the onerous property or reject it totally. If
he elects to accept the beneficial part of the gift, he is bound to accept the other which is burdensome.
However, an essential element of this Section is a single transfer. Both the onerous and prosperous
properties must be transferred in one single transaction only then they require the obligation to be accepted
or rejected in a joint manner.
Universal donee
The concept of universal donee is not recognised under English law, although universal succession,
according to English law is possible in the event of the death or bankruptcy of a person. Hindu law
recognises this concept in the form of ‘sanyasi’, a way of life where people renounce all their worldly
possessions and take up spiritual life. A universal donee is a person who gets all the properties of the donor
under a gift. Such properties include movables as well as immovables. Section 128 lays down in this regard
that the donee is liable for all the debts and liabilities of the donor due at the time of the gift. This section
incorporates an equitable principle that one who gets certain benefits under a transaction must also bear the
burden therein. However, the donee’s liabilities are limited to the extent of the property received by him as a
gift. If the liabilities and debts exceed the market value of the whole property, the universal donee is not
liable for the excess part of it. This provision protects the interests of the creditor and makes sure that they
are able to chase the property of the donor if he owes them.
Suspension or revocation of gifts
Section 126 of the Act provides the legal provisions which must be followed in case of a conditional gift.
The donor may make a gift subject to certain conditions of it being suspended or revoked and these
conditions must adhere to the provisions of Section 126. This Section lays down two modes of revocation of
gifts and a gift may only be revoked on these grounds.
Revocation by mutual agreement
Where the donor and the donee mutually agree that the gift shall be suspended or revoked upon the
happening of an event not dependent on the will of the donor, it is called a gift subject to a condition laid
down by mutual agreement. It must consist of the following essentials:
 The condition must be expressly laid down
  The condition must be a part of the same transaction, it may be laid down either in the gift-deed itself
or in a separate document being a part of the same transaction.
 The condition upon which a gift is to be revoked must not depend solely on the will of the donor.
 Such condition must be valid under the provisions of law given for conditional transfers. For eg. a
condition totally prohibiting the alienation of a property is void under Section 10 of the Transfer of
Property Act.
 The condition must be mutually agreed upon by the donor and the donee.
 Gift revocable at the will of the donor is void even if such condition is mutually agreed upon.
Revocation by the rescission of the contract
Gift is a transfer, it is thus preceded by a contract for such transfer. This contract may either be express or
implied. If the preceding contract is rescinded then there is no question of the subsequent transfer to take
place. Thus, under Section 126, a gift can be revoked on any grounds on which its contract may be
rescinded. For example, Section 19 of the Indian Contract Act makes a contract voidable at the option of the
party whose consent has been obtained forcefully, by coercion, undue influence, misrepresentation, or fraud.
Thus, if a gift is not made voluntarily, i.e., the consent of the donor is obtained by fraud, misrepresentation,
undue influence, or force, the gift may be rescinded by the donor.
The option of such revocation lies with the donor and cannot be transferred, but the legal heirs of the donor
may sue for revocation of such contract after the death of the donor.
The limitation for revoking a gift on the grounds of fraud, misrepresentation, etc, is three years from the date
on which such facts come to the knowledge of the plaintiff (donor).
The right to revoke the gift on the abovementioned grounds is lost when the donor ratifies the gift either
expressly or by his conduct.

Conclusion
The Act must be followed for a transfer to be considered a gift. This Act goes into great detail about what
constitutes a gift and how it is transferred. Because the gift constitutes a transfer of ownership rights, it must
be in the transferee’s possession and ownership at the time the transfer is made. Although the transferor
must be qualified to make the transfer,
the transferee can be anyone. If the transferee is unable to contract, a competent person must ratify the
acceptance of the gift on his or her behalf. Gifts of future property are null and void. Partially accepting
lucrative gifts while rejecting onerous gifts is also ineffective.

DEATH BED GIFT TRANSACTION UNDER DHRISTIIAS and Word Notes

EXCHANGE
EXCHANGES (Sec. 118 to 121)
In common man’s language, exchange means a transfer of a thing for another thing. Both the things or either
of the things may be movable or immovable property.
Sec. 118 of the Transfer of Property Act defines Exchange as when two persons mutually transfer the
ownership of one thing for the ownership of another, neither one thing nor both things being money only,
the transaction is called an ‘Exchange’.
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of
such property by sale.
It is a transfer of a thing for another thing and both or either of these things are movable or immovable
property.
For e.g
A transfers a house to B. B transfers a land to A. This is exchange, otherwise called barter.
There can be an exchange of one form of money for another of it, e.g., a rupee note can be exchanged for
coins. But there cannot be an exchange of A’s house for B’s Rs. 5,00,000/-. Such a transaction is only a sale
and not an exchange.
RULES OF EXCHANGE
1. RIGHT OF PARTY DEPRIVED OF EXCHANGED THING (Sec. 119)
If any party to an exchange due to any defect in the title of the other party is deprived of the thing received
in exchange, then the other party is liable to compensate the loss caused to the first party.
This is done by return of the exchanged thing to the original owner, provided it is still in his possession or in
the possession of his legal representative or transferee without consideration.
2. RIGHTS AND LIABILITIES OF PARTIES TO EXCHANGE (Sec. 120)
The rights and liabilities of each party to the exchange if that of a seller and buyer for the thing exchanged.
Hence, all essentials of Sale must be fulfilled for Exchange.
3. EXCHANGE OF MONEY (Sec. 121)
On an exchange of money, each party thereby warrants the genuineness of the money given by him. A gives
a currency note of Rs. 500/- to B and B in exchange gives Rs. 500/- in coins. Both guarantee the
genuineness of their currency (rupee note and coins).

MORTGAGE
Introduction
The Transfer of Property Act, 1882 deals with a) various specific transfers relating to immovable property.
b) general principles relating to the transfer of movables and immovable property. Chapter II of The
Transfer of Property Act, 1882 deals with both movable and immovable property. Section 58 to 104 of the
Transfer of Property Act, 1882 deals with mortgages and charges.
Mortgage under Transfer of Property Act, 1882
Section 58 to 104 of the Transfer of Property Act, 1882 deals with mortgages and charges.
Below mentioned sections are important sections.
As per Section 58 of Transfer of Property Act, 1882 the following words are defined
 Mortgage
A mortgage is the transfer of an interest in immovable property for the purpose of securing the payment of
money advanced, an existing or future debt or the performance of an engagement which may give rise to a
pecuniary liability.
 Mortgagor and Mortgagee
The person who transfers the interest in an immovable property is called the mortgagor.
The person to whom it is transferred is called the mortgagee.
 Mortgage Money
The principal money and interest of which payment is secured for time being is called mortgage money.
REFER WORD DOC ….. READ AND WRITE

'REDEEM UP AND FORECLOSURE DOWN'

This maxim is applied in the context of priority of mortgages.
When there are successive mortgages of the same property, a mortgagee who is second or below in the order
of priority may redeem an earlier mortgage. Thus redemption of mortgage is of the earlier mortgages from
the earlier mortgagees by the latter mortgagees. Hence the dictum- 'mortgage up'.
Foreclosure is a legal process in which a lender recovers the a loan from a borrower who has stopped
making payments to the lender by forcing the sale of the property mortgaged.
When there are several mortgages, and if the mortgage property is sold for recovery of loan, the prior
mortgagee gets the first right and after him, the second mortgagee and so on. Hence the dictum 'foreclosure
down'.
CHARGE
SEE TNDALU PAGE 51 AND REFER DHRISTI IAS FOR D/B
Essential Elements of a Charge
 A charge can be formed either by an act of parties or throughout the operation of law.
 An immovable property is made security for the payment of money.
 The transaction which is formed does not amount in the direction of a mortgage.
 A charge can be obligatory by a suit.
 A charge may be extinguish either by an act of the parties by means of the release of debt otherwise
through an enhancement or otherwise by a merger.
Case laws
 JK (Bombay) Private Ltd vs. New Kaiser-I-Hind Spinning and Weaving Co Ltd. (1970)
In this case the Apex Court held that in the case of a charge, there is no transfer of interest or any of its
interest, but only the creation of the right of payment out of the specified property, however, a mortgage
accomplishes the transfer of property or an interest. No particular form of wording is required to create a
charge and it is necessary that there should be a clear intention to create security of property for payment of
money in the praesenti (at present time).
 Raychand Jivaji vs. Basappa Virappa Bellary (1940)
In this case the Bombay High Court held that it would be sufficient to create a charge if it can be seen from
the document that there is a clear intention to use that property as security for the payment of money,
without transferring any right or interest in the property.

LEASE
LEASE INTRO
A lease is a legally binding contract that outlines the terms of renting property, ensuring the tenant’s use of
the property in exchange for regular payments to the landlord. These terms typically include the property’s
address, rent amount, security deposit, rent due date, lease duration, pet policies, and consequences for
breaching the contract.

S105: defines lease as the transfer of the right to enjoy an immovable property made for a specific or
indefinite period, in consideration for some benefit in cash, kind or in service, paid or promised to be paid in
lump sum or periodically or on specific occasions as per terms and the same is accepted
 Transferor is lessor and transferee is lessee
 The consideration may be a fixed amount or a share of crops or serving of any other thing to be
rendered periodically or otherwise
 Mulla: lease is a contract b/w the lessor and the lessee for the possession and profits of land, etc on
one side and the recompense by rent or other consideration on the other
 If the lease is for lesser than one year, it may be oral or in writing, registration is optional
 If the lease is for one year or above, it must be in writing and registered
 Delivery of possession is necessary for all kinds of lease
Difference b/w lease and licence
A. Lease creates an interest in the property while license does not
B. Lessee gets exclusive possession of immovable property, licensee has the permission to do an
otherwise unlawful act on the immovable property
C. Lease is assignable and irrevocable, license is not
D. Lessee can bring action for trespass, licensee cannot sue in his own name
E. Lease needs to be registered for one year and above, a registration of license is not necessary
KINDS OF LEASE
S105 recognises three kinds of lease:
A. Lease for a fixed period
B. Periodic leases (year to year, month to month, etc)
C. Lease in perpetuity
S106: in the absence of contract or local usage,
A. Lease for agricultural or manufacturing purpose shall be deemed to be from year to year, terminable
by either party by giving 6 months notice expiring with the end of a year of the tenancy
B. Lease for any other purpose shall be deemed to be from month to month terminable on the part of
either party by giving 15 days notice expiring with the end of a month of the tenancy
Lease for manufacturing purpose:
A. In Allenbury Engineers Pvt. Ltd. v. Shri Ram krishna Dalmia and Ors., it was stated that
“Manufacturing purposes” meant not changing an already existing article but transforming it
into a different article or material with a distinctive name, character or us.
 B. In Idandas v. Anant Ramachandra, the SC laid down tests to determine whether a process
is manufacturing or not:
- It must be proved that a certain commodity was produced
- The process of production must involve labour or machinery
- The end product should be complete and have a different name and use.
In the case wheat to flour was held to be manufacturing

S107: how leases are made

A. A lease of immovable property from year to year, or for a term of a year or more, or reserving
a yearly rent can be made only by a registered instrument
B. All other leases may be made by registerest instrument or oral agreement accompanied by
delivery of possession
C. Ram Sewak v. Abdul Majeed: a lease by a registered instrument, shall be executed by both
lessor and lessee. Here, a rent note was executed only by a tenant and was not held to be a
lease
D. When registration is compulsory but the lease is not registered, it is void
E. Both lessor and lessee can sue for specific performance u/s 27A of the SRA on the basis of an
unregistered lease
S110: exclusion of day on which term commences
Where the time limited by a lease is expressed as commencing from a particular day, in computing
that time such day shall be excluded
Where no day of commencement is named, time so limited begins from the making of the lease

RIGHTS AND LIABILITIES OF THE LESSOR AND LESSEE

A. Rights and liabilities are settled by contract, local usage and S108
B. S108: local usage means customary mode of action which is well known and settled

RIGHTS AND LIABILITIES OF THE LESSOR

A. No express provision with rights of lessor.
B. Liabilities of lessee would imply identical rights of lessor
C. S108 (c) implies right to receive rents

Liabilities:
A. S108 (a): Duty to disclose defects
- Lessor should disclose any material or latent defects in the property leased
- Wrt intended use of which he is aware
- Omission to do so is not considered fraudulent but good ground for avoiding lease
- Lessee may sue for damages sustained due to omission
B. S108 (b): Lessor must put the lessee in possession of the property
- Lessor must deliver possession to lessee on his request
- Narayanswami v. Yerramilli: if lessee fails to request the lessor to put him in possession or
fails to take possession, he cannot resist a suit for rent
- In England, failure to put lessee in possession of part of the land entails suspension of entire
rent.
- Same does not apply to India
- Katyayani Debi v. Udoy Kumar: doctrine of suspension of payment of rent when the tenant
has not been put in possession of part of the subject leased, has no application to a case where
stipulated rent is so much per acre
 C. S108 (c) : implied covenant for quiet enjoyment
- Lessor shall be deemed to contract with the lessee that if the lessee pays rent and performs
the contract, he may hold the property during the time limited by the lease without
interruption
- Protects lessee against disturbance caused by lessor and people claiming under lessor, but not
against trespassers or third parties
- Reason being that lessee has proper remedies against wrong doers
- Katyayani Debi v. Udoy Kumar: duty of the tenant to protect him against illegal
encroachments by another
- Title paramount:
Eviction by title paramount means eviction due to the fact that the lessor has no title to grant
the term and the paramount title is the title paramount to the lessor’s which destroys the effect
of the grant and with it the corresponding liability for payment of rent
In Gajadhar v. Romphaee: a theatre was sub-leased and the sub-lessee was prevented from
using the theatre by the original lessor on the ground that a notice was served on the lessee
for determining the lease. The sub-lessee had to pay an additional amount to the proprietor
(the original lessor) and then take the lease. It was held that there is violation on the part of
the original lessor and the sub-lessee can sue the original lessor for damages for violation of
quiet enjoyment of the property.
- No protection against acts done under compulsion of law
The Indian covenant affords no protection against act done under compulsion of law
Merwaji v. Alikhan: lessee was evicted under the Epidemic Diseases Act. No cause of action
against the lessor.

1. RIGHTS OF THE LESSEE

A. Lessee’s right to accretions
- The lessee is entitled to any accretion to the benefit of the property
- This is subject to the law relating to alluvion . Hence, adjoining waste land brought
under cultivation is not accretion.
- A lessee has right to retain possession over accretions and on termination of lease, he
must surrender the accession to the lessor in the same way he is bound to surrender
the property originally released
-
B. S108 (e): Right to repudiate the lease
- If the material part of the leased property is destroyed, partially or completely, by fire,
tempest, floods, violence or the enemy, the lease is voidable by the lessee
- Lessee should not cause the destruction
- In a lease of land with buildings upon it, the destruction of even the entirety of
buildings does not affect the continuance of the lease, unless provided by express
covenant
- Vannattankandy Ibryi v. Kunhabdulla Hajee: tenanted shop was destroyed by fire,
the tenancy right stands extinguished as the subject matter is no longer in existence
and the tenancy ends.
C. S108 (h): Right to fixtures
- Anything affixed to the land becomes part of the land
- The lessee is entitled to such fixtures
- Lessee has the right to remove the fixtures made by him during the continuance of
lease
 - Must see to it that the property is left in the same condition as he received it
- Lessee cannot enter the premises to remove the fixtures, once the possession is
handed over
D. S108 (f): Right to deduct cost of repairs
- Lessee may, after giving reasonable notice to the lessor, make repairs if the lessor has
neglected it
- Lessee may deduct such expenses from the rent or recover them from the lessor
- Lessee is not entitled to recover any compensation for loss suffered by him due to
lessor’s failure to repair
E. S108 (g): Right to deduct payment of tax
- If the lessor has neglected to make payments (ex. House tax), lessee has the right to
pay
- He has the right to be reimbursed by the lessor with interest
- Based on S69, contract act, 1872
F. S108 (i): Right to remove crops (usufructs)
- The lessee has free ingress (right to enter), egress and carry any crops grown by the
lessee when the lease is terminated
- Such a right is not available to the lessee in case tenancy is terminated due to lessee’s
negligence or misconduct
G. S108 (j): Right to alienate his interest
- Unless prohibited by the lessor in the lease deed, the lessee is entitled to sublease
- No privity of estate b/w lessor and sublessee, and lessor cannot sue the sublessee for
rent, and his remedy is only against the lessee

2. LIABILITIES OF THE LESSEE

A. S108(k): Duty to disclose material increase of value
- Lessee is bound to disclose any fact as to the nature or extent of the interest which the
lessee is about to take, which materially increases the value of such interest
- Such non-disclosure does not amount to fraud and hence the lessor cannot sure to set
aside the lease
- The only remedy is claim for damages
B. S108(l): Duty to pay rent
- Bound to pay or tender the premium or rent to the lessor or his agent
- At proper time and place as directed by the lessor
- as held in Spencer’s case (Spencer v. Clark) and Katyayini Devi v. Udaya Kumar
C. S108(m): Duty to maintain the property
- Lessee must restore the property to the lessor in good condition, subject to normal
wear and tear
- He shall not commit any destructive or injurious acts to the property by using it for a
purpose different than the one agreed upon
- Lessee is liable for permissive waste, ie, omission or default in carrying necessary
repairs
- Not liable for loss by irresistible force, ex flood
- Duty continues even after the creation of sub tenancy
D. S108(n): Duty to inform about encroachment
- If lessee becomes aware of any encroachment, interference or proceeding against the
property, he is bound to give notice to the lessor with reasonable diligence
E. S108(o): Duty to use the property reasonable
 - Use it with ordinary prudence
- Should not permit another to use the property for any other purpose than the one
agreed upon
- Not commit any other act that is destructive or permanently injurious
- Not fall or sell timber
F. S108(p): Duty to not erect permanent structures on the property except for agricultural
purposes
- Shall not erect permanent structures except for agricultural purposes
- If he does, bound to remove them when he leaves
- Liable for eviction if he raised an unauthorised structure
G. S108(q): Duty to restore possession on expiration of lease

3. S109: Rights of lessor’s transferee: transferee shall possess all rights as the lessor, unless the contract
is to the contrary. Liabilities of the lessee continue towards the transferee.

Termination of lease: S111

A. S111 (a): By efflux of time
- A lease determines the lapse of time it is limited by
- On expiry of the period, lessor may ask ejectment by simple demand for possession
- This condition need not be incorporated in the lease deed
- Tezchand v. Srikanth Ghose: a lease created for a certain time does not terminate if
any party dies during the term as the interest is heritable
- KM Mohan v. Dist Collector, Nellore: Lessee has no statutory right to insist upon
the renewal of lease in his favour nor the lessor has a duty to do so
B. S111 (b): By happening of certain event
- Where expiry of time is limited conditionally on happening of some event, by
happening of the event, lease is determined
C. S111 (c): By termination of lessor’s interest
D. S111 (d): By merger
- If the lessee purchases the property, no right of lease exists
- When the interest of lessor and lessee is vested in the same person
E. S111 (e): By express surrender
- Tenancy is given upon - surrender
- Lessee yields his interest in the lease to the lessor by mutual agreement
- Sublessee cannot surrender to the original lessor
F. S111 (f): By implied surrender
- Ex. Lessee accepts new lease for the same property thereby terminating the older one
- Must not be due to fraud or concealment
- Can be inferred from unequivocal conduct of both parties
G. S111 (g): By forfeiture
In cases of:
- Lessee breaches an express condition
- Lessee renounces his character such as by claiming the title
- Lessee is adjudicated as insolvent
H. S111 (h):On expiration of Notice to quit
- Periodic leases are terminated by notice to quit u/s 106 where the notice specifies a
date of expiry
 - Notice must be unconditional, in writing, signed by the party giving it and served
effectively

4. S116: EFFECT OF HOLDING OVER

Essentials to consider a tenant as tenant of holding over:
A. Lessee or under lessee of property remains in possession
B. After the termination of lease
C. Lessor or his legal representative accepts the rent
D. Or assents to his continuing possession
E. In the absence of contract to the contrary (Ram Prasad Kurni v. Suraj Nath)
In Sundershan Trading Co Ltd v. LD D’Souza, it was held that tenancy by holding over is
a creature of bilateral, consensual act between the erstwhile landlord and tenant, and does not
come into existence by unilateral declaration of one of the parties.
5. A tenant continues in possession after the determination of lease, without the consent of the landlord
is a tenant at sufferance. His possession is juridical and can get an injunction against eviction by the
landlord otherwise than in due course of law.
6. A person in illegal occupation of the premises without the consent of the landlord is a trespasser and
cannot avail the benefits of this provision.

7. S117: Exemption of leases for agricultural purposes

Provisions of lease shall not apply to leases for agricultural purposes, except if notified by the state
government in the official gazette.

Actionable claim: S130

1. The actionable claim is defined under S3 of the Transfer of Property Act, 1882.
2. In general terms, an actionable claim is a debt or claim for which the person can take an action and
also approach the Court for recovery of his debt or claim. The same may be transferred.
3. Actionable claims include claims recognised by the courts to grant relief either:
- As to unsecured debts or
- As to beneficial interest in movable property not in possession (actual or constructive),
whether present or future, conditional or contingent.
Colonial Bank v. Whinney:
The court was asked to decide whether shares in a joint stock company were to be classified as
choses in action for the purposes of the proviso to section 44(iii) of the 1883 Act by which property
in the order or disposition of the bankrupt in his trade or business with the consent of the true owner,
other than choses in action, was made available for the satisfaction of his debts.
Held: The Court discussed the history and nature of choses in action.
Cotton and Lindley LJJ held that shares were not choses in action for the purposes of the statute,
although they both regarded them as a form of intangible personal property.
Simon Thomas v. State Bank of Travancore: there should be an intention to transfer the debt represented
by written receipts
In Jugal Kishore Saraf v. Raw Cotton Co Ltd and Lachmi Koeri v. State of Bihar, SC held that a
judgement debt is not an actionable claim and arrears of rent are respectively.
 4. S130: transfer of an actionable claim (with or without consideration) should be made only by the
execution of an instrument
5. Thereupon, all the rights and remedies of the transferor become vested in the transferee, whether
notice is given or not
6. Transferee may sue or proceed in his own name, without obtaining the consent of the transferor.
7. Under Section 130 of the Transfer of Property Act, the mode of transfer of actionable claim is
described.
8. According to Section 130,
- The transfer can be done by only a written instrument;
- And signed by the transferor or his legal agent; and
- The transfer will be complete.
9. S130 does not apply on the transfer of marine and insurance of fire policy.
10. Examples:
- Share in a company
- Mortgage debt
- Claims to copyright
- Claims to mesne profits
- Claim for arrear rent
- Claim for rent that is due in future
- Claim for benefit of a contract
- Deposit receipt
11. Illustration:
A. A is the debtor and B is the creditor. B transfers the debt to C and then demands A to pay. A
pays without notice of the transfer, the payment is valid. C cannot sue A but B may transfer
the debt to C.
B. A has a life insurance policy and assigns it to bank B for securing a loan. A dies. B is entitled
to receive the amount of the policy and can sue without the consent of A’s executors.
12. S132: Liability of transferee of actionable claim.—The transferee of an actionable claim shall take it
subject to all the liabilities and equities and to which the transferor was subject in respect thereof at
the date of the transfer.
13. The transfer of actionable claim is given under chapter eight of the Transfer of Property Act.

EASEMENT
Definition and meaning
1. Governed by Easements Act, 1882
2. S4: 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.
3. The land for the beneficial enjoyment of which the right exists is dominant heritage
4. Owner or occupier thereof is the dominant owner
5. The land on which the liability is imposed is servient heritage
6. The owner or occupier thereof is the servient owner
7. Definition
A. “Land” in the definition includes things permanently attached to it
B. “beneficial enjoyment” includes possible convenience, remote advantage and even a mere
amenity
C. “To do something” includes removal and appropriated by the dominant owner for the
beneficial enjoyment, of any part of the soil of the servient heritage or anything growing or
subsisting thereon
 8. Illustration: A is the owner of a house and has a right of way over his neighbour B’s land and to take
water for household purposes out of a spring therein. This is an easement.
9. Gale: An easement is 'a right enjoyed by an owner of land over land of another, such as a right of
way, of light, of support, or to a flow of air or water'.
10. Peacock: Easement is such a privilege without profit which an owner of dominant heritage receives
from the owner of the land due to which owner of that property cannot exercise his complete rights
or does nothing for the advantage of earlier occupier
Essential characteristics
A. It is incorporeal
B. It is imposed on corporeal property and not on its owner
C. It confers no right to share on the profits arising from such property
D. There must be a dominant and a servient tenement
E. It must accommodate the dominant tenement
F. The dominant and servient owners must be different persons
G. Easements can exist only as appurtenant and not in gross.
WHO MAY IMPOSE EASE & WHO MAY ACQUIRE EASEMENT

Acquisition
1. An easementary right is the right available to a person to use another man’s property for the right
enjoyment of his property.
2. Easement may be
A. Created by deed that is by grant, reservation or covenant
B. Acquired by prescription
C. Created by operation of law
D. Created or recognised by judgement or decree
E. Acquired by necessity
F. Acquired by quasi easements
G. Acquired by transfer
H. Created by imposition
I. Acquired by virtue of local customs
Grants
A. Theoretically, all easements have their origin in some sort of grant by the servient owner
B. The grant may be express or implied from circumstances and conduct of parties or presumed
from long use or inferred from some usage prevailing in the locality
C. The limits of an easement by an express grant depends on the words used and parties’
intention
D. Where no express grant exists, the right is limited and defined by the user? (not sure)
E. S8 provides that every person who possesses any transferable interest in land can impose an
easement on such land in the circumstances and to the extent in or to which he can transfer
such interest
F. S8 provides the power of creating an easement by grant to the owner or occupier of any
immovable property
G. His power of making a grant of an easement is co extensive with his power of transferring his
own interest in the servient heritage
H. He cannot grant an easement which extends beyond his own interest and affects the rights of
others.
I. The grantor’s right should be greater of coextensive with interest for which the easement is
granted
Prescription
A. S15: 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.
 Each of the said periods of twenty years shall be taken to be a period ending within two years next
before the institution of the suit wherein the claim to which such period relates is contested.
 If the property over which a right is claimed belongs to the government, 20 years shall be replaced
with 30 years
 Easements acquired under section 15 are said to be acquired by prescription, and are called
prescriptive rights.

S16: exclusion in favour of reversionary of servient heritage

Provided that, when any land upon, over or from which any easement has been enjoyed or derived
has been held under or by virtue of any interest for life or any term of years exceeding three years from
the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or
term shall be excluded in the computation of the said last-mentioned period of twenty years, in case the
claim is, within three years next after the determination of such interest or term, resisted by the person
entitled, on such determination, to the said land.
 Illustration: A sues for a declaration that he is entitled to a right of way over B’s land. A proves that
he has enjoyed the right for twenty-five years; but B shows that during ten of these years C had a
life-interest in the land; that on C’s death B became entitled to the land; and that within two years
after C’s death he contested A’s claim to the right. The suit must be dismissed, as A, with reference
to the provisions of this section, has only proved enjoyment for fifteen years.
S17: which easements cannot be acquired by prescription
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;
a right to the free passage of light or air to an open space of ground;
 a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or
otherwise;
 a right to underground water not passing in a defined channel

Operation of law
 Easements may be created by operation of law, viz, by estoppels, statute, special statutory
proceedings providing for the acquisition of a private road or right of way
 It is with reasonable reference to public convenience, general good and public policy
 Implication of law which raises easement, is founded upon the principle that man must do all he can
to make his grant effective
Imposition
 Every owner of land, having transferable interest in it, can impose over it an easement to the extent
of his own right
 S8: An easement may be imposed by any one 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.
Transfer
 S19: provides as to transfer of dominant heritage passes easement
 It lays down that where the dominant heritage is transferred, or devolves, by act of parties or
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
3. Customary easements
A. S18: easement may be acquired by virtue of a local custom and is known as customary
easement
B. (elaborate on essentials of customs)
C. Kinds of customary easements:
- Easements of pasturage
- Easements of religious observances
 - Easements of privacy
- Easements of sports and recreation
D. It exists independent of any dominant heritage and is vested in a defined class, community or
locality
4. This easementary right alone cannot be transferred to others without the transfer of the dominant
property, as easement is a right ancillary to the enjoyment of the land and cannot be transferred by
itself alone
S13: Easement of necessity and Quasi easements
1. Quasi Easements are apparent and continuous easements which are necessary for the enjoyment of
the dominant tenement in the state in which it was enjoyed at the time when it was severed from the
servient tenement
2. Before such severance, they are only the ordinary rights of property and assume the character of
rights of easement on such severance only provided they fulfil certain specified conditions, ie,
A. They are apparent
B. They are continuous
C. They are necessary for the enjoyment of the tenement for which they are claimed in the same
state in which it was enjoyed before severance from the tenement on which their liability is
thrown
3. In Fida Ali Hulla v. Akbar Ali Kadarbhai, the ancestral building was partition b/w 2 brothers, A
enjoyed the ground floor and B the first. The ground floor needed repairs without which the first
would collapse. B asked A to repair it and A refused.
The court held that B had right of support as a quasi easement and the right to enter and repair the ground
floor at his own expense.
4. Easement of necessity is an easement without which the property cannot be enjoyed at all. It does not
mean an easement which is merely necessary to reasonable enjoyment of the property.
5. S13: Where one person transfers or bequeaths immovable property to another:
(a) 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 easement; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable
property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled
to such easement; or
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the
latter shall be entitled to such easement;
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
6. Illustration: A sells B a house with windows overlooking A’s land, which A retains. The light which
passes over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the
sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
7. In Ramlal v. Rakhdu Pundu, an agricultural land was divided b/w A and B bros. The irrigating
channels were in A’s land; there was no other channel of getting water to B’s land. B sold to C. A
obstructed the water channels. Sale deed was silent about water supply.
Held: It was necessary for C to enjoy his land from A’s channels and thus, A had no right of obstruction.
8. Examples of easements of necessity: Right of drainage, Right of light and air (quasi easements as
well)
9. S14: Direction of way of necessity: When a right to a way of necessity is created under section 13,
the transferor, the legal representative of the testator, or the owner of the share over which the right is
exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for
the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it
out.
10. Quasi easements and easements of necessity must be apparent and continuous.
Easement by prescription 83
1. Blackstone: Prescription is a mode of acquiring property, when a man could show no other title to
what he claimed than that he, and under whom he claimed had immemorially used to enjoy it.
2. Principle behind prescription is that it would result in great hardship and injustice to demand a man
after a long, continued and uninterrupted usage to prove the origin of his title especially to the olden
times when writing was not in vogue.
3. So, the law allowed long and immemorial users to claim title to safeguard their interests
4. Salmond: Prescription is a title effect of lapse of time in creating and destroying rights.
5. The rational basis of prescription is found in the presumption of the coincidence of possession and
ownership, of fact and of right
6. The longer the possession, the greater its evidential value
7. Scope: S15 explains the mode of acquisition of prescriptive easements
8. S15: 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.
 Each of the said periods of twenty years shall be taken to be a period ending within two years next
before the institution of the suit wherein the claim to which such period relates is contested.
 Where the property over which a right is claimed belongs to the government, 20 shall be read as 30
years
9. Illustration: A suit was 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 judgement
10. Conditions to enjoy prescriptive easements:
A. The right claimed must be certain
B. The right claimed must have been enjoyed by the claimant
C. The right claimed must have been enjoyed independently of any agreement with the owner or
occupier of the land over which the right is claimed
D. It must be enjoyed
- Peaceably
- Openly
- As of right
- As an easement
- Without interruption
E. For twenty years in case the right is claimed against civilians or for thirty years in case the
right is claimed against the government
11. The use must be adverse to the servient tenement: where a person enjoys a right with the will of
the servient owner, it is not a prescriptive enjoyment. The enjoyment must be adverse to the servient
tenement. The right must be enjoyed independent of any agreement with the owner
12. Without interruption: interruption refers to actual cessation of enjoyment by reason of an
obstruction by the act of some person other than the claimant.
13. As of right: the term “as of right” signifies enjoyment by a person in the assertion of a right.
Enjoyment as of right means enjoyment had, not secretly or by stealth, or by leave or favour or by
permission asked periodically. Enjoyment must be open,notorious, without particular leave by the
person claiming to use it without danger of being treated as a trespasser, as a matter of right.
14. The burden of proof lies on the person who asserts the right of easement and thereby invades the
natural right of the occupier of the land on which the right is claimed.
15. If the enjoyment is injurious to public health, the dominant owner cannot claim such enjoyment as
of a right under prescriptive easement. Ex. Pollution, nuisance, etc
16. S17: rights which cannot be acquired by prescription:
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 stream or not permanently collected in a pool, tank or
otherwise
D. A right to underground water not passing a defined channel
17. S12: No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable
property of his own, an easement in or over the property comprised in his lease.
18. A tenant cannot by prescription acquire a right of way over land belonging to the landlord. The
reason is that for the existence of an easement, two tenements owned by two different persons are
necessary.
Extinction, suspension and revival of easements 95
1. Chapter V explains the extinction, suspension and revival of easements
2. It contains S37-51
3. An easement may be extinguished by
A. S37: by dissolution of the right of the servient owner from a cause which preceded the
imposition of the easement
B. S38: by release, express or implied
C. S39: by revocation in exercise of a power reserved in this behalf by the servient owner
D. S40: if imposed for a limited period, by the expiry of the period. If acquired on condition that
it shall become void on the performance or non-performance of a specified act, by the
fulfilment of the condition
E. S41: if an easement of a necessity, by coming to an end of the necessity
F. S42: if it becomes incapable of being at any time and under any circumstances beneficial to
the dominant owner
G. S43: by permanent change in dominant heritage
H. S44: by permanent alteration of servient heritage by superior force
I. S45: by destruction of either heritage
J. S46: by unity of ownership
K. S47: by non enjoyment for an unbroken period of 20 years
4. S37: Extinction by dissolution of right of servient owner
A. 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, the easement is extinguished.
B. 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.
5. S38: Extinction by release
A. An easement is extinguished when the dominant owner releases it, expressly or impliedly, to
the servient owner.
B. 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.
C. An easement may be released as to part only of the servient heritage.
D. A, having an easement of light to a window, builds up that window with bricks and mortar so
as to manifest an intention to abandon the easement permanently. The easement is impliedly
released.
6. S39: Extinction by revocation
A. An easement is extinguished when the servient owner, in exercise of a power reserved in this
behalf, revokes the easement.
7. S40: Extinction on expiration of limited period or happening of dissolving condition
A. 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.
8. S41: Extinction on termination of necessity
A. An easement of necessity is extinguished when the necessity comes to an end
B. 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.
9. S42: Extinction of useless easement
A. An easement is extinguished when it becomes incapable of being at any time under any
circumstances beneficial to the dominant owner.
10. S43: Extinction by permanent change in dominant heritage
A. 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:
- it was intended for the beneficial enjoyment of the dominant heritage, to whatever
extent the easement should be used; or
- the injury caused to the servient owner by the change is so slight that no reasonable
person would complain of it; or
- the easement is an easement of necessity
B. Nothing in this section shall be deemed to apply to an easement entitling the dominant owner
to support of the dominant heritage
11. S44: Extinction on permanent alteration of servient heritage by superior force
A. 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
B. 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 a way.
C. Access to a path over which A has a right of way is permanently cut off by an earthquake.
A’s right is extinguished.
12. S45: Extinction by destruction of either heritage
A. An easement is extinguished when either the dominant or the servient heritage is completely
destroyed.
B. 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
13. S46: Extinction by unity of ownership
A. An easement is extinguished when the same person becomes entitled to the absolute
ownership of the whole of the dominant and servient heritages.
B. The servient owner acquires the dominant heritage in connection with a third person: the
easement is not extinguished.
C. The joint owners of the dominant heritage jointly acquire the servient heritage: the easement
is extinguished.
14. S47: Extinction by non enjoyment
A. A continuous easement is extinguished when it totally ceases to be enjoyed as such for an
unbroken period of twenty years.
B. An easement is not extinguished under this section where:
- the cessation is in pursuance of a contract between the dominant and servient owners
- the dominant heritage is held in co-ownership, and one of the co-owners enjoys the
easement within the said period; or
- the easement is a necessary easement
C. Where several heritages are respectively subject to rights of way for the benefit of a single
heritage, and the ways are continuous, such rights shall, for the purposes of this section, be
deemed to be a single easement.
D. A has, as annexed to his house, rights of way from the high road thither over the heritages X
and Z and the intervening heritage Y. Before the twenty years expire, A exercises his right of
way over X. His rights of way over Y and Z are not extinguished
15. S49: Suspension of easement
A. An easement is suspended when the dominant owner becomes entitled to possession of the
servient heritage for a limited interest therein, or when the servient owner becomes entitled to
possession of the dominant heritage for a limited interest therein.
16. S51: Revival of easement
A. An easement extinguished under S45 revives
  when the destroyed heritage is, before twenty years have expired, restored by the deposit of
alluvion;
 when the destroyed heritage is a servient building and before twenty years have expired such
building is rebuilt upon the same site; and
 when the destroyed heritage is a dominant building and before twenty years have expired such a
building is rebuilt upon the same site and in such a manner as not to impose a greater burden on the
servient heritage.
B. An easement extinguished under S46 revives when the grant or bequest by which the unity of
ownership was produced is set aside by the decree of a competent Court.
C. A necessary easement extinguished under S46 revives when the unity of ownership ceases
from any other cause.
D. A suspended easement revives if the cause of suspension is removed before the right is
extinguished under S47.
E. A, as the absolute owner of field Y, has a right of way over B’s field Z. A obtains from B a
lease of Z for twenty years. The easement is suspended so long as A remains lessee of Z. But
when A assigns the lease to C, or surrenders it to B, the right of way revives.

LISENCE
Licence (under easement act)
1. S52, Easements Act, 1882: Licence is where one person grants to another or a definite number of
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 interest
in the property.
2. A licence does not pass any interest in the immovable property to the licensee. It only makes an
action lawful.
3. It is not connected with the ownership or possession of land. It is only a personal right and is
permissive of an action.
4. It may be revoked. It is a personal privilege.
5. Licence cannot question the title of the licensor u/s 116, Evidence Act, 1872
6. If a licence includes permission to take away movable property, it is considered a grant for the
movable property.
7. In Biswanath Panda v. Gadadhar Panda, it was held that a licence is revocable but when coupled
with a grant, it is irrevocable.
8. A licensee is a person to whom the licence is given by the licensor.
9. A licence cannot be assigned as it is not connected with the ownership of the property.
10. S56, Easement Act, 1882: A licence to attend a place of public entertainment is transferable unless a
different intention is expressed or implied but otherwise, it cannot be transferred.
11. Illustration:
A. A grants B a right to walk over A’s field. It cannot be transferred.
12. A licence can be transferred when:
A. Public entertainment
B. Profits a pendre: where it is coupled with a grant or interest in the immovable property
C. Expressly made assignable and exercisable by servants or agents
D. By its very nature, cannot be exercised by the licensee himself
13. S60, Indian Easements Act, 1882: licence when revocable
A. Licence may be revoked by the grantor unless
- It is coupled with a transfer of property and such transfer is in force
- The licensee, acting upon the licence, has executed a work of a permanent character and incurred
expenses in the execution
14. A right under irrevocable licence is generally heritable, but unless such license is coupled with the
transfer of an assignable interest in property, it is not transferable.
15. A licence is generally revocable. However, the licensor should give reasonable notice to the licensee,
before he revokes the licence.
16. A third party causing obstruction may be sued by the licensor only.
17. If the licence is given upon receiving consideration under express or implied contract, the licensor
has no right to interfere or revoke
18. If he does so, damages may be sought for breach of contract
19. A licence is deemed to be revoked when:
A. The grantor crease to have any interest in the property
B. Licensee releases it expressly or by implication
C. the period for which it was granted expires
D. the condition on which it was to cease is fulfilled
E. The property is destroyed rendering its exercise impossible
F. Property is permanently altered by a superior force rendering its exercise impossible
G. Ownership becomes vested in the licence
H. The purpose for which it was granted is altered, abandoned or becomes impracticable
I. The particular office or character for which it was granted, ceases to exist
J. Non usage for 20 years, not due to a contract b/w the parties
K. The interest or right to which it was an accessory ceases to exist