SOLVED PROBLEMS FROM PREVIOUS OUESTION PAPERS

PROPERTY LAW

1. A who is expecting to succeed to the estate of B, sells B's property to C.

Later A succeeds to the right to property. Can C claim the property?

Ans: FACTS: Rewrite key points from the question.

ISSUES: 1. Did A did have la egal title to the property at the time of sale as per
Section 6 of Transfer of Propert Act,1882?

2. Was A authorized to sell B's property before succeeding to the estate as per Section 7 of
Transfer of Propert Act,1882?

3. Who is the rightful owner of this property: A (as B's successor) or C (the buyer)?

4. Is the sale from A to C valid if A's lacks title to the property as per Section 6 of Transfer of
Propert Act,1882?

5. Can A be estopped from claiming back the property?

6. Can C be considered as a purchaser in good faith, without notice of A's lack of title as per
Section 41 of Transfer of Propert Act,1882?

REASONING/ANALYSIS:

Legal Provisions and Principles involved:

- Section 6: Properties which can be transferred.
- Section 7: Who may transfer property.
- Section 41: Transfer of property by unauthorized person
- Section 43: Transfer of property subject to prior sale
- Nemo dat quod non habet (no one can transfer a title that they don't have)
- Doctrine of Estoppel
- Bonafide Purchaser for Value doctrine

Section 6 under the Transfer of Property Act contains exceptions to the rule of transferability.
The law prohibits the transfer of property under certain circumstances listed under clauses (a)
to (i) under Section 6.
 Clause (a) of Section 6 of the Transfer Of Property Act excludes the mere chance of an heir
apparent succeeding to an estate from the category of transferable property. Spes successionis
refers to the expectation of an heir to succeed to the property of a deceased person. It is a
legal concept under the Transfer of Property Act, 1882, which deals with the transfer of
immovable property in India.

Spes successionis is a Latin legal phrase that refers to the possibility of inheriting someone’s
property after their death.

Spes Successionis under the Act comprises:

 Chance of an heir apparent succeeding to the estate

 Chance of a relation obtaining a legacy
 Any other possibility of like nature

Under the Act, Spes successionis is not considered property that can be transferred, as it is
contingent on the death of a person. The right of succession only arises after the death of the
person, and until then, it remains a mere expectancy.

However, if a person transfers his property to another person and reserves the right to re-
acquire it in case the transferee dies without leaving any legal heirs, such a transfer would be
valid. This is known as a transfer with a condition subsequent.

For example, if A transfers his property to B with a condition that if B dies without leaving
any legal heirs, the property will revert to A, such a transfer is valid. In this case, A has
reserved the right to re-acquire the property in case B dies without any legal heirs, and this
right is not contingent on the death of any person.

On the other hand, if A transfers his property to B with a condition that if B dies, the property
will go to C, such a transfer would be void, as it is contingent on the death of B.

Similarly, if A transfers his property to B with a condition that if B survives A, he will

become the owner of the property, such a transfer would also be void, as it is contingent on
the happening of an uncertain event.

Shamsudin vs. Abdul Hoosein, the Bombay High Court ruled that if an heir-apparent settles
property before the propositus’s death, agreeing not to claim a share, the transfer is
invalidated by the principle of spes successionis and is void. Despite the execution of the
deed, the heir-apparent would still obtain their share since the transfer was void from the
beginning. However, any monetary exchange in such a transaction must be reconciled.

Samir Kumar Haldar vs. Nirmal Chandra Banerjee,-when the transfer pertains to the actual
property itself rather than the anticipation of inheriting as an heir apparent, it cannot be
characterised as a transfer based solely on a speculative chance of succession. In situations
where an individual has been absent and presumed deceased for a significant period, a
property transfer executed by their brother – who is actively occupying and enjoying the
property – should not be considered void under the concept of transfer by spes successionis.

Annada Mohan Roy vs. Gour Mohan Mallik, there was a transfer by a Hindu reversioner.
The Privy council held that since the interest is spes successionis dependent on the death of
the Hindu widow, hence an agreement to transfer or a transfer does not become effective, the
agreement is void.[Reversioner is a person who gets the rights in the property of a widow
after her death held by her for life]. Thus, under old Hindu law, it is a mere chance of getting
the properties and it comes under the spes successionis. They are called reversioners because
during the lifetime of widow their rights of inheritance are suspended and revert back on the
death of widow provided, they survived her. Thus, Hindu reversioner has no right in the
property in the lifetime of a widow and after his death also they must survive her. Thus, it is
not transferable.

Puncha Thakur vs Bindeswari Thakur “ The offerings of a temple or shrine is a beneficial

interest and thus property.The right to receive future offerings is uncertain future right
because it is merely a chance that worshipper offers something at the temple. Hence it is a
mere possibility that cannot be transferred”.

Illustration – a fisherman contracts to transfer a fish he would get in his next catch the
transfer is void ab initio because the transfer is of a future possible interest because the
fisherman may or may not get any fish at all in his next catch. The fisherman has no interest
in the fish until they are caught like an heir apparent in the property.

JUDGEMENT: At the time of sale, ‘A’ did not have legal title to the property, as
they had not yet succeeded to B's estate. Hence, ‘C ‘cannot claim the property as it was a sale
of mere Spes successionis and hence void ab initio. ‘C’ cannot raise the doctrine of estoppel
against ‘A’. However , ‘C’ may recover back the sale amount paid by him if he proves that
he was a bonafide purchaser for consideration and had exercised due care and reasonable
enquiries regarding the property at the time of the sale.

2. X mortgages his properties A and B to C for Rs.1,00,000. X sells A alone

to P and B alone to Q. Q alone redeems the whole mortgage. What are
the remedies available to P and Q?
Ans: FACTS: Rewrite key points from the question.

ISSUES: 1. Whether Q can claim the rights of the original mortgagee against X and
P?

2. What are the remedies for P (owner of property A) and Q (owner of property B and
redeemer of entire mortgage)?

3. . Is C (mortgagee) liable to return excess funds to Q or P?

 REASONING/ANALYSIS: Legal Provisions involved:
- Section 60: Mortgage of immovable property
- Section 61: Priority of mortgage debt
- Section 63: Contribution between co-mortgagors
- Section 83: Liability of mortgagee to retransfer
- Section 92: Subrogation

Doctrine of subrogation,allows for substituting one party for another in a mortgage

agreement. This doctrine is based on justice, equity, and good conscience principles.
Doctrine of Subrogation finds its roots in Roman Law. Subrogation involves the substitution
of one person or thing for another, resulting in the transfer of the same rights and obligations
from the original entity to the substitute. Essentially, it entails placing oneself in the shoes of
another. Subrogation involves the transfer of rights of a mortgagee to an individual who
redeems a property through the payment of debt and after fulfilling the essential prerequisites
for a valid claim. When a person, other than the mortgagor, or a co-mortgagor redeems a
property subject to a mortgage, they acquire the same rights as the mortgagee they redeemed
the mortgage from, concerning redemption, foreclosure, or sale of the property.

Legal Subrogation- When a person with an interest in a property redeems it through debt
payment, they would be legally subrogated to such property. A legal subrogation can be
claimed by co-mortgagor, surety, puisne mortgagee, and the purchaser of equity of
redemption.

 Puisne Mortgagee: If a prior mortgagee wins a decree without suing the puisne mortgagee,
they gain the right to sue for redemption of the earlier mortgage.
 Co-mortgagor: When a co-mortgagor redeems their own share and pays off the share of the
other mortgagor, they obtain the right to be subrogated in place of the other mortgagor.
 Surety: A surety for the mortgagor has the right to redeem the mortgaged property under
Section 91 of the Transfer of Property Act. Upon redemption, the surety is subrogated to the
creditor’s position and rights.
 Purchaser of Equity of Redemption: The purchaser of the equity of redemption becomes the
owner of the property. For example, a person who buys the mortgaged property from the
mortgagor and takes over the resposibilty of repaying the mortgage debt .

Conventional Subrogation -Conventional Subrogation occurs when the person paying off
the debt has no direct interest in the property. Such Subrogation is created through a contract,
which can be written or expressed but does not necessarily emerge as a consequence of the
operation of law.
The difference between the legal and conventional subrogation is that in the case of
legal subrogation it arises by operation of law, whereas the convention subrogation
takes place under an agreement expressed or implied. In legal subrogation the person
 having the interest to discharge the mortgage and to protect the mortgagee from his
liabilities but in conventional subrogation the person does not have any interest in
discharging the mortgage, he would discharge it only under certain specific
agreement.

Partial Subrogation is not valid; the redemption of the property must be complete for a valid
claim.The property must be redeemed through payment to the mortgagor, and a written
acknowledgment of being subrogated to the mortgagee’s rights is necessary.

Bisseswar Prasad v. Lala Sarnam Singh [(1910) 6 Cal. LJ 134]- Calcutta High Court
elaborated on the doctrine of subrogation, a principle of equity jurisprudence. This principle,
which can be either implied or expressed, does not depend on the privity of the contract. It
applies except when equity is imported into a transaction, thereby implying a contract. The
concept of natural justice is used in conjunction with the circumstances and facts of each
case.”

Nagayya v. Govindayuyar [AIR 1923 Mad 349].- Madras High Court ruled that when a
subsequent mortgagee redeems the prior mortgage, the reason for the redemption is
irrelevant; it can be for the benefit of the mortgagor or any other reason. The applicability of
Section 92 of the Transfer of Property Act, 1882, is crucial only for proving the payment and
demonstrating that the mortgagee made the payment.

JUDGEMENT: From the facts of the case, it is clear that Q is a purchaser of equity of
redemption from X, the mortgagor. That is, he acquired the same rights of X to redeem the
mortgaged property which was sold to him. Applying the doctrine of subrogation, Q steps
into the shoes of the original mortgagee C . Q will have all rights of C , the original
mortgagee against X. X is now bound to repay the mortgage debt in respect of Property B to
Q. P , the purchaser of Property A; is discharged of all liability to pay the mortgage debt in
respect of Property A to the original mortgagee C. P is now bound to pay the the mortgage
debt in respect of Property A to Q.

In short, Q can recover mortgage money in respect of Property B from X and the mortgage
money in respect of Property A from P [provided there are no agreements to the contrary
between any of the parties].

In a nutshell:
Remedies available to P (Buyer of Property A):
1. Suit for Redemption (Section 60): P can sue C, the mortgagee for redemption of
property A's share in the mortgage.
 2. Contribution (Section 63): P can seek contribution from Q for A's share of the
mortgage debt.
Remedies available to Q (Buyer of Property B and Redeemer):
1. Subrogation (Section 92, TPA): Q can claim subrogation rights, stepping into C's
shoes as mortgagee for property A.
2. Recovery (Section 83, TPA): Q can recover excess funds paid for redeeming the
entire mortgage.

3. A makes a gift of his property is located at Kannur reserving the right to

revoke the gift at any time as he please. Discuss the validity of the gift.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Is the gift valid with a reserved right to revoke as per Section 122 of
Transfer of Propert Act?
2. Does the reservation negate the requirement of absolute transfer under Section 123
of Transfer of Propert Act?
3. Can the ownership be treated as transferred unconditionally under Section 5 of
Transfer of Propert Act?
4. Can the donor unilaterally revoke the gift as per Section 126 of Transfer of Propert
Act?
5. Does the reservation indicate lack of intention to transfer ownership as per Section
123 of Transfer of Propert Act?

Legal provisions involved:

Section 122: Gift defined
- Section 123: Gift must be absolute
- Section 125: Gift of immovable property
- Section 126: Revocation of gift

REASONING/ANALYSIS: According to Section 122 of the Transfer of Property Act, a gift

is when someone willingly gives away something they own, whether it’s a thing you can move
or something fixed in place. It’s important that this giving is done without expecting anything
in return. The person giving the gift is the “donor,” and the person receiving it is the “donee.”
The donee has to agree to accept the gift.
Revocation of gift under Transfer of Property Act refers to the legal act of cancelling or
annulling a previously made gift, rendering it void and restoring ownership of the gifted
 property to the donor. The revocation process is subject to specific legal provisions and the
ability to revoke a gift may depend on various factors, such as conditions outlined in the gift
agreement, mutual agreements between the donor and donee and the governing legal
framework.
Section 126 of the Transfer of Property Act, 1882, explains when a gift can be put on hold or
cancelled. According to this section, the person giving the gift (donor) and the person receiving
it (donee) can agree that the gift will be put on hold or cancelled if a specific event, not
controlled by the donor’s will, occurs. However, if the parties agree that the gift can be
cancelled entirely or partially at the donor’s will, the gift becomes void either wholly or partly,
depending on the case.
Section 126 outlines two ways in which a gift can be revoked:
 Revocation through mutual agreement between the donor and the donee.
 Revocation through rescission, similar to how contracts can be undone.
Revocation of Gift under Transfer of Property Act by Mutual Agreement
Even if the condition is not explicitly stated in the gift deed but is separately agreed upon by
both parties and is part of the overall gift transaction, it remains valid and enforceable.
The condition for revoking the gift must be not solely based on the donor’s will. If the donor
can cancel the gift whenever they please, it’s not a valid gift.
The agreement for revocation must be made at the time of the gift, not after the gift is completed
and absolute. While the stipulation for revocation doesn’t have to be in the same document as
the gift deed, both must be part of the same transaction.
The condition for revocation of gift under Transfer of Property Act is considered a “condition
subsequent,” and it must comply with the legal provisions for conditional transfers. Any
condition that completely prohibits the property’s transfer is void.
Moreover, the condition for revocation must be a “condition subsequent,” meaning it depends
on a future event beyond the donor’s control. For example, if A gives a field to B with the
condition that A can take it back only if B and his descendants die before A, this condition
depends on an uncertain future event beyond A’s control.
If the stipulation allows the donor to revoke the gift at their will or pleasure, it is void and the
gift remains valid. For instance, if A gives Rs. 1,00,000 to B but reserves the right to take back
Rs. 10,000 at A’s pleasure, the gift of Rs. 90,000 is valid, but the gift of Rs. 10,000 is void and
it continues to belong to A.
If the donor’s consent was obtained through coercion, undue influence, fraud or
misrepresentation, the donor can choose to repudiate or revoke the gift. If the donor doesn’t
 exercise this option, the gift remains unaffected. The right to revoke the gift under Transfer of
Property Act on these grounds lies solely with the donor and cannot be assigned to any other
person. However, after the donor’s death, legal heirs may seek revocation based on these
grounds.
The time limit for revoking gifts on the grounds of fraud, coercion, misrepresentation or undue
influence is three years from the date when the plaintiff (donor) becomes aware of these facts.
The right to revoke the gift on these grounds is forfeited if the donor explicitly ratifies the gift,
either through express approval or by conduct.
Thus, a gift can only be revoked under two circumstances:
(a) if there’s a condition subsequent that doesn’t depend on the donor’s pleasure and (
b) based on the grounds justifying the rescission of a contract.
Any attempt to revoke a gift under Transfer of Property Act on other grounds is not valid.
Another example :The deed cannot be rescinded on the grounds that it was an onerous gift and
that the donee failed to fulfil a condition related to contributing to the marriage of the donee’s
sister. Once a gift is complete, it cannot be rescinded for any reason whatsoever. The
subsequent actions of the donee do not provide a valid ground for rescinding a valid gift.
Suspension or Revocation of Gift under Mohammedan Law:
In cases where both parties involved are Muslims, a gift is regulated by the Quranic Law, also
known as Mohammedan Law and not by the Transfer of Property Act, as it conflicts with the
provisions of this act. Under Mohammedan Law, a Muslim has the authority to revoke a gift
even after delivering possession, except in specific situations:
 When the gift is made from a husband to his wife or vice versa.
 When the donee is within the prohibited degrees of relation to the donor.
 When the gift is Sadaka, meaning it’s made to a charity or for any religious purpose.
 When the donee has passed away.
 When the gifted item has left the possession of the donee through sale, gift or any other
means.
 When the gifted item is lost or destroyed.
 When the gifted item has increased in value, regardless of the cause of the increase.
 When the gifted item has undergone such a change that it cannot be identified, such as wheat
being transformed into flour through grinding.
 When the donor has received something in exchange for the gift.
In all other cases, a gift may be revoked at the mere will of the donor, with or without reserving
the power to revoke, but the revocation must be done through a court decree.
JUDGEMENT: The gift is not valid. due to the reserved right to revoke any time, making it
conditional [Assuming that A is not governed by Muslim law of Gifts]. Section 123 requires
gifts to be absolute and unconditional.: A can re-execute the gift deed without such
reservation in order to make it valid.

4. A sells a property to B with a covenant that B should construct a road

across the property for the convenience of A's neighbors. B transfers the
property to C who is aware of the covenant. C refuses to construct the
road. Can A enforce the covenant against C?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether this covenant runs with the land?
2. Is C; the subsequent buyer bound by the covenant?
3. Can A ; the original transferor enforce the covenant against C?
4. Remedies available to A ?

REASONING/ANALYSIS:

Legal provisions involved:

Section 40 of the Transfer of Property Act 1882 - meaning and application of
covenants .

Section 55(2) - Implied guarantee of seller that he holds the perfect title to the
property and is transferring the same free from any encumbrance.

Covenant is a binding agreement between two or more parties wherein the obligations and
rights of each party have been outlined. The agreement or contract defines specific actions
that must or must not be conducted by the parties.

A covenant may be created for legal purposes or even in business deals. However, in the
context of property law, a covenant defines the use of property. A covenant states what
actions must or must not be conducted towards a property.
For example, the landowner may require the tenant to maintain and keep the fence across the
property intact. A covenant is not limited to tenants and property owners but can also extend
between buyers and sellers, wherein a buyer must abide by such an agreement.

Types of covenants :
Positive covenant

A positive covenant involves agreeing to implement an action on a property owned by an

individual. For example, conducting specific affairs that ensure property maintenance would
encompass a positive covenant.

Restrictive covenant
Restrictive or Negative covenant limits what the owner can or cannot do on the property.
For example, builders or society associations require property owners not to paint the exterior
of their houses in colours of their choice. Builders sometimes also require the property
owners not to install window air conditioners. Such are the restrictive covenants that property
owners need to abide by and, hence, must be identified before purchasing the property.

A positive covenant is not enforceable by the transferee against the property buyer. The
validity of a positive covenant lapses between the existing parties and does not extend to the
future buyer and owner of a property. Examples-;A and B entered a covenant, requiring B to
paint the exterior of the property, once every two years or to dig a well or to construct a
pathway. When C buys the property from B, he would not be liable to conform with the same
covenant.

Whereas a restrictive or negative covenant passes on from the transferee and is legally
enforceable against the new buyer in a court of law. The buyer must ensure that such a
restrictive covenant is upheld. An owner can request to alter or strike off a restrictive
covenant. However, the request can be made to the owner’s association or the court in the
absence of such association. The decision to modify or strike off such a clause will be at the
discretion of the deciding authority.

A covenant that runs with a land is a covenant that transfers when ownership of the attached
land transfer. The future owner of the property subject to a covenant that runs with the land is
bound by that covenant.
Essential Conditions for Covenants Running with Land:

1. Intent to bind land.

2. Covenant must touch and concern land.

3. Covenant must be in writing.

4. Covenant must be registered (if required).

Tulk v Moxhay [1848] 41 ER 1143

In 1808, William Tulk purchased Leicester Square in London from Charles Sidney. The sale
contract included a covenant (a promise) that the square's ownership would be restricted to
use as a public square, and no buildings or structures would be erected. In 1848, Henry
Moxhay purchased the square and planned to build on it. Tulk sued Moxhay to enforce the
restrictive covenant.

Key Issues in this case were :

1. Could a restrictive covenant be enforced against subsequent owners of the land?

2. Did the covenant "run with the land," meaning it was tied to the property itself, rather than
just the original parties?

Court ruled in favour of Tulk, and passed an injunction to prevent Moxhay from building on
the land. The covenant had been intended to run with the land at the time it was made, and all
subsequent purchasers had been informed of its existence. Moreover, as a covenant amounts
to a contract between a vendor and vendee, it is enforceable against a purchaser for value
with either constructive or actual notice. As Moxhay had actual notice of the covenant, he
was obligated to abide by it.

Where a person who owns a house and adjoining land and sells the land, enters into a
covenant with the purchaser that the latter shall keep a portion of the land transferred vacant
and free buildings, so as not to obstruct the air and light of the vendor's house. Such a
covenant, being one intended for the beneficial enjoyment of the vender's house, is
enforceable, as against the purchaser.
A covenant which is not made for the beneficial enjoyment of the transferor's property, but is
merely an arbitrary condition imposed for its own sake, is not enforceable against the
transferee, and the latter may ignore it; e.g., a covenant to use the transferred land as a
garden, a covenant to build a second story, a covenant to improve the transferred land. There
are affirmative covenants which can be rarely enforced against the transferee.

"A covenant runs with the land when the benefit or burden of it, whether at law or in
equity, passes to the successors in title of the covenantee or the covenantor, as the case may
be."

"Any one coming to the land with notice actual or constructive of a covenant entered into
by some previous owner of the land restraining the use to be made of the land, will be
prohibited from doing anything in breach of that covenant."

But, Affirmative or Positive covenants are not enforceable against the transferees of the land,
even where they have notice. But they are binding on the covenators . Similatrly, Personal
covenants cannot be enforced against transferees. This is so even if they have notice.
However, this does not affect their validity as between the immediate parties. Held in leading
cases of Haywood v. Burnswick Permanent Building Society, (1881) 8 QBD 403,
Wolverhampton Corp. v. Emmons, (1901) KB 151 and London Country Council v. Allen,
(1974) 3 KB 642.

JUDGEMENT: C is not bound to construct a road over the land because it amounts
to a positive covenant between the previous buyer B and the original owner A;.
This covenant does not run with the land and is enforceable only between the original
parties A and B. As C is only a subsequent transferee ; A cannot compel B to fulfil
this covenant even though C was aware of this covenant at the time of purchasing the
property from B. However, if there is any agreement to the contrary between the
parties, then C may be compelled to fufill the covenant.
5. A makes a gift to B with a proviso that if he marries without the consent of
C and D it shall go to E. D dies. B marries without consent of C. Can E
claim the property?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether a conditional gift is valid under of the Transfer of Poperty Act,
1882?

2. Whether this is a condition precedent or a condition subsequent?

3. Whether B has vested right in the property or a contingent right [ that is a right which
is suspended until B marries with C and D's consent]?
4. What will be legal effect of D's Death on B’s right to get the property?
5. Whether C’s consent or non-consent to the marriage will be crucial to decide B’s right
to obtain the gift?
6. Whether B can raise the plea of impossibility of full performance of the condition or
frustration[ due to death of D]?
7. Whether E can claim the gift due to B’s inability to fulfill the conditions fully ?

REASONING/ANALYSIS:
Legal Provisions involved:
Sec 122 of Transfer of Property Act- Gift defined
Secs. 19 and 21 of Transfer of Property Act- Vested and Contingent interest
Secs 25- Conditional transfers
Secs 26 to 31 – Condition precedent and Condition subsequent, Doctrine of Acceleration,
Doctrine of Cypres.
Cypres pronounced as ‘see pray’ means “as nearly as possible”. The doctrine of Cypres is
applicable to all types of transfers of property. In particular, it is applicable to
CONDITIONAL TRANSFERS of property. In order to attract this doctrine, the following
conditions should be satisfied:
1) There must be a CONDITIONAL TRANSFER of property;
2) The transferee is not able to satisfy the condition fully or exactly. He could only satisfy
the condition SUBSTANTIALLY (almost fully or almost exactly.
In the above circumstances the transferee will get the property even though he has not
satisfied the condition exactly. In other words if the transferee has satisfied the condition AS
NEARLY AS POSSIBLE to the intention of the transferor he will get absolute right over the
property.
 Egs: - ‘A’ transfers property to ‘B’ under a condition that ‘B’ will marry only with the
consent of ‘X’, ‘Y’ and ‘Z’. Here ‘B’ will get the property [NOTE: - If ‘B’ had obtained the
consent of ‘X’ and ‘Y’ only AFTER his marriage ‘B’ will not get the property]
 ‘A’ transfers property to ‘B’ under a condition that ‘B’ will marry with the consent of ‘P’,
‘Q’ and ‘R’, ‘S’. ‘B’ marries with the consent of ‘P’. ‘Q’ happily attends B’s wedding. ‘R’
sends a wedding card to ‘B’. ‘S’ does not show any objections. Here ‘B’ will get the
property as he has obtained EXPRESS consent of ‘P’ and IMPLIED consent of ‘Q’,‘R’
and ‘S’.
It is to be noted that the Doctrine of Cypres is applicable only in case of CONDITION
PRECEDENT and not in case of CONDITION SUBSEQUENT.
CONDITION PRECEDENT is a condition which a person must satisfy in order to GET a
property. (The above mentioned examples are condition precedents).

Illustrations to Sec 26:

(a) A transfers Rs. 5000 to B on condition that he shall marry with the consent of C, D and E.
E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.

(b) A transfers Rs. 5000 to B on condition that he shall marry with the consent of C, D and E.
B marries without the consent of C, D and E, but obtains their consent after the marriage. B
has not fulfilled the condition.

CONDITION SUBSEQUENT is a condition which is person must satisfy if he does not want
to LOSE a property which he has already got.
 Egs: - ‘A’ transfers a property to his son’s widow under a condition that she will lose the
property if she re-marries.
 ‘A’ transfers a property to ‘B’ under a condition that ‘B’ will marry only with the consent
of ‘C’ and ‘D’. ‘B’ marries without the consent of the ‘C’. ‘B’ will lose his right over the
property.
Illustration to Sec.29:
A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a
proviso that, if B dies as minor or marries without C's consent, Rs. 500 shall go to D. B
marries when only 17 years of age, without C's consent. The transfer to D takes effect.
 The MAIN DEFFERENCE between CONDITION PRECEDENT and
CONDITION SUBSEQUENT is that in case of condition precedent the property will become
VESTED in the transferee only if he satisfies a previous condition. Whereas, in case of
condition subsequent the property is already VESTED with the transferee but it will get
DIVESTED that is he will lose it if he does not satisfy a subsequent condition.
In case of condition subsequent it should be EXACTLY or FULLY satisfied. Then transferee
will lose the property which he had already got.
If a condition precedent is illegal the transferee will not get the property. Eg: - ‘A’
transfers his property to ‘B’ under a condition that ‘B’ kills ‘C’.
If a condition subsequent is illegal it can be ignored. The transferee will not lose the
property.
Eg: - ‘A’ transfers his property to ‘B’. ‘B’ starts living in the property. ‘A’ had also laid down
a condition that ‘B’ should kill ‘C’ within one year from the date of transfer.
Here as the property is already vested in ‘B’. ‘B’ can ignore this illegal condition subsequent.
‘B’ will not lose the property if he does not kill ‘C’.
The Doctrine of Cypres is based on the principle that “LAW ALWAYS LEANS IN
FAVOUR OF VESTING AND NOT IN FAVOUR OF DIVESTING”. Means law always
encourages GIVING of property to the rightfully entitled persons. Law does not encourage
TAKING AWAY of property from the rightfully entitled persons.
The doctrine of Cypres is widely applied under the Indian Succession Act 1925 (Section 128)
too. These are several illustration attached to this section.
 Dawson v. Oliver Massey (1876) 2Ch D 753
A property was transferred under a condition that the transferee should marry only
with the consent of parents. One of the parents died. Transferee married with the consent of the
surviving parent.
Applying the doctrine of the Cypres, the court held that the transferee will get the property.
 Re Brown’s Will (1881 18 ChD1
A property was transferred under a condition that the transferee marries with the
consent of his guardians. Both guardians died. The transferee married later on.
Court held that the transferee will not get the property because he could have applied to the
court for appointment of a new guardian and married after obtaining the consent of the new
guardian.
 Ganendro Mohun Tagore v. Raja Juttendro Mohun Tagore (1 IA 387)
 Property was transferred under a condition that the transferee resides there. The
manner of residence whether permanent or occasional was not specified. The transferee resides
there only occasionally.
Applying the doctrine of Cypres, the Court held that the transferee will get the
property.
Sec.27 of Transfer of Property Act explains the Doctrine of Acceleration is
applicable to conditional gifts. For the application of this doctrine the following conditions
should be satisfied.
1) A gift of the SAME PROPERTY must be made to at least two persons.
2) The gift must not be joint and absolute. In other words, one of them will get the gift ONLY
IF the other person fails to satisfy some condition. Eg: - A gifts his property to ‘B’ under a
condition that ‘B’ marries ‘C’. ‘A’ also says that if ‘B’ does not marry ‘C’ then the property
will go to ‘D’.
Here ‘B’ has PRIOR DISPOSITION [first or earlier right to get the property]
whereas ‘D’ has only ULTERIOR DISPOSITION [last or later right to get the
property]. In other words ‘B’ has first chance to get the property and ‘D’ has only second
chance to get the property. ‘D’ will get the property only if ‘B’ does not marry ‘C’. In legal
terms the ULTERIOR DISPOSITION will take effect only if the PRIOR
DISPOSITION fails.
3) Under the doctrine of acceleration the person who has ULTERIOR DISPOSITION will get
the property EVEN IF the PRIOR DISPOSITION failed in a different manner. In the above
example if ‘B’ dies without marrying at all the property will quickily pass (accelerate) in
favour of ‘D’ so ‘D’ will get the property even if ‘B’ is not able to fulfil the condition laid
down by ‘A’
However, there is an EXCEPTION to this rule. If the person who gives the gift lays
down a condition that the ULTERIOR DISPOSITION would become effective only if the
PRIOR DISPOSITION failed IN A PARTICULAR MANNER then the doctrine of
acceleration will not apply. Eg: - ‘A’ gifts property to ‘B’ under a condition that ‘B’ marries
during A’s lifetime. If ‘B’ does not marry during A’s lifetime and dies before ‘A’ then the
property will go to ‘C’. ‘A’ and ‘B’ die together in an accident. It is impossible to prove that
‘B’ died before ‘A’.
Here under ‘C’ will not get the property even if ‘B’ was unmarried at the time his death.
[NOTE: - under English law of Property if two persons have died together and it is impossible
to prove as to who died first then it shall be presumed that the older person had died first].
OTHER ILLUSTRATIONS OF DOCTRINE OF ACCELERATION:

 ‘A’ transfers Rs. 500/- to ‘B’ on a condition that ‘B’ shall execute a lease within 3 months
after A’s death. If ‘B’ fails to do so then the money would go to ‘C’. ;B died before ‘A’.
Here the money will go to ‘C’.
 ‘A’ transfer property to his wife. If the wife dies before ‘A’ then the property will go to ‘b’.
‘A’ and his wife die together. It is impossible to prove that A’s wife died before ‘A’. Here,
‘B’ will not get the property.
 JUDGEMENT: . B will not get the property . He cannot invoke the doctrine of Acceleration
or Doctrine of Cypres or Doctrine of impossibility of performance [Frustration] in order to
claim the gift.
E can claim the property because B has not at all satisfied the condition laid down by A.[ due
to D’s death and C’s non-consent to the marriage]. C's consent is the crucial factor. If C had
given consent to the marriage , E's claim would have failed.

6. While a suit was pending before a civil court between X and Y with
respect to the ownership of a house, X who is in possession of the
property transfer the house to Z. The suit is decreed in favor of Y.
Whether Z is bound by the decree?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1: Whethet sale of a property involved in litigation can be transferred
during the pendency of Litigation?
2. Whether the trascation is hit by the doctrine of Lis pendens under Section 52 of the
Tranfer of Property Act, 1882?
3. Whether the transferee Z will be bound by the outcome of the litigation?

REASONING/ANALYSIS: Doctrine of Lis-Pendens is applicable to all types of

transfers of property. According to this doctrine an IMMOVABLE PROPERTY which
is the subject matter of PENDING SUIT cannot be transferred
(sold/leased/mortgaged/gifted, etc.) by any of the parties to the suit, without the
permission of the court. However, the following additional conditions should also be
satisfied:
a) The suit must be pending in a COMPETENT Court;
b) The court must be an Indian court (excluding the court situated in Jammu & Kashmir);
c) There must be no collusion (secret fraudulent agreement) between the parties to the
suit.
If such property is transferred while the case is pending such transfer shall be
VOIDABLE at the option of the transferee. Ramjidas v. Laxmikumar (AIR 1987MP78)
In the leading case of:
 Bellamy v. Sabine (1857,44 ER. 842) , Hussain Khan v. Prag Narain (1907 ILR 29 All)-
 It was held that if alienations (transfers) pendent lite (pending litigation) were
permitted it would lead to unending litigation.
 Love Raj Kumar v. Major Daya Shankar (Dr) (AIR 1986 Del 364)-
It was held that the doctrine of Lis-pendens is based on the principle of Justice, Equity
and Good conscience.
.However, Section 52 does not render the transfer absolutely void. The object of the
section 52, Doctrine of Lis-pendens is to maintain Status Quo of the parties till the
final determination of the Court. This doctrine aims to prevent parties from alienating
property during litigation.

Lis pendens in common parlance means “a pending legal action”. The doctrine of lis pendens
finds its place in Section 52 of TOPA which provides that if there is any transfer of any
immovable property pending litigation, the same shall not affect the rights of the parties in
respect to the immovable property. The outcome of the litigation, passed by a court of
competent jurisdiction, in the matter during the pendency of which the transfer had taken
place would be binding upon such a purchaser, who has purchased the property during the
pending litigation. Section 52 of TOPA does not declare a transfer by a party during the
pending litigation to the suit as void or illegal, but only makes the purchaser, who has
purchased the subject property bound by the decision in the pending litigation. The principle
underlying Section 52 of TOPA is that if during the pendency of any suit in a court, in which
any right of an immovable property is directly and specifically in question, such property
cannot be transferred by any party to the suit to affect the rights of any other party to the suit
under any decree that may be made in such suit. If ultimately the title of the pendente lite
transferor is upheld regarding the transferred property, the transferee’s title will not be
affected. On the other hand, if the title of the pendente lite transferor is not recognized or
accepted by the court, then the transferee shall acquire no rights at all.
Due diligence in a property transaction means that the purchaser is not buying the property on
“as is where is” basis but on a clear and marketable title from the seller. There is no caveat
emptor doctrine running against the purchaser, but a duty cast upon the owner of the property
to give a clean, clear and marketable title to the property which is free from all and every
encumbrances.
The purchaser can verify the title of the owner from the concerned sub-registrar where the
property is situated to check whether the title flow is aligned with the title documents
 provided for inspection by the seller. Some States in India also provides for encumbrance
certificate so that one can understand that any financial institution or any authority has a
charge on the property. Verification from the land authorities or local authorities or society
records are also few diligence steps to confirm the title of the owner to the property. One may
also issue public notice in the newspapers to check any claim from third parties including the
financial institutions. Generally, purchasers also inspect and survey the property so as to rule
out any the structural defects in the property.

Essentials of Lis Pendens?

 The suit or proceeding must be pending.

 Suit must not be collusive.
 Right related to immovable property must be contended.
 The right to immovable property is directly and specifically in question.

Purpose of Lis Pendens doctrine-

 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.

Exceptions of Lis Pendens-

 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
JUDGEMENT: In conclusion, based on the Transfer of Property Act, 1882:
Z is generally bound by the decree in favor of Y, due to the lis pendens doctrine and the
binding nature of the decree. But Z's knowledge of the pending suit at the time of transfer is
crucial. If X had induced Z to buy the property under litigation through fraud,
misrepresentation or concealment , then Z can avail remedies available to bona-fide
purchaser of property value for consideration.
 7. Mr. A entered into a contract with Mr. B to purchase standing timber in
Mr. B’s property for an agreed sum. Examine, whether this transfer is
governed by The Transfer of Property Act, 1882?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether standing timber can be treated as "Immovable Property"
within the purview of Transfer of Property Act, 1882 ?
2. Whether transfer of Standing Timber must be made by registered instruments?

REASONING/ANALYSIS: Generally speaking, the word immovable property

connotes anything that a person owns which cannot be moved from one position to another. It
can be said that anything which is affixed to land under someone’s ownership falls under the
category of immovable property. The immovable properties are entitled to be protected by
legal statutes and are liable to taxation. Such an immovable property has rights of ownership
attached to it.

The General Clauses Act, 1897 defines immovable property under Section 3(26), stating that
the term shall include land, things affixed to earth or permanently fastened to anything
affixed to earth, and any benefits arising out of the land. On the other hand, Section 3 of the
Transfer of Property Act, 1882, does not provide an exhaustive definition. It states that
immovable property is not to include standing timber, growing crops, or grass. None of the
above definitions is exhaustive. These definitions just denote what is to be included or
excluded from the purview of immovable property.

Thus, after clubbing the definitions provided under the two statutes, immovable property can
be defined as permanently affixed to the earth, like land, trees and other substances that do
not include standing timber, growing crops, or grass. There are further qualifying nuances to
the term ‘immovable property’, and they have been addressed suitably later.

Section 2(6) of the Registration Act, 1908 also provides for the definition of the term
immovable property. As per this Section, lands, buildings, hereditary allowances, rights to
ways, lights, ferries, fisheries, any profit that arises out of the land, and any other thing that is
attached to the earth, or something permanently fastened to anything which is in turn attached
to the earth, provided it shall not include standing timber, growing crops, nor grass falls under
the category of immovable property.

Even the definition provided under the Registration Act, 1908, is not exhaustive;
however, it helps to a certain extent to understand the nature and concept of
immovable property. In Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd.
(2005), the Karnataka High Court held that the term ‘immovable’ in immovable
property means permanent or fixed, which cannot be moved and which is attached
permanently to the immovable property.

The term movable property in common parlance constitutes any physically mobile property
or something that can be easily moved by any person. Movable property connotes almost
everything that is not affixed to land, irrespective of appearance, shape, size, colour, etc. The
items that fall under the category of immovable property are subject to various conditions and
restrictions as stated under various Indian statutes.

The term movable property has been defined diversely in various Indian statutes.

The General Clauses Act, 1897, in Section 3(36), defines the term to include property of
every description, except immovable property.

The Registration Act, 1908, in Section 2(l)(9), provides an inclusive definition of movable
property. According to this, it is to include standing timber, growing crops and grass, fruits
on the trees, and juice in trees, along with the property of every description other than
immovable property.

The term movable property is also defined under Section 22 of the Indian Penal Code, 1860.
It states the term is to include corporeal property of every description, provided that the same
is not affixed to the land. The main proposition to be understood here is that the property
must not be attached to the land. However, the same immovable property might become
movable as soon as severed from the earth.

The Supreme Court of India in State of A.P. v. N.T.P.C. Ltd. (2002), held that electricity falls
under the category of property, and merely because it cannot be felt or touched or moved, it
will not cease to come under this category. Anything that possesses all the attributes of a
property can be considered property, be it a book, a piece of wood, patents, copyrights, etc.

In the case of State Bank of Patiala v. Chohan Huhtamaki (India) Pvt. (1981), the
Himachal Pradesh High Court held that standing timber, growing crops, grass, or other such
things which are attached to the earth, but the intention of making them a permanent part of
the land is not present, for example, machines that are attached to land but can be shifted, all
these come under the purview of movable property. Apart from this, the right to worship,
promissory notes of the government, rights of a purchaser to register his land, royalty, etc
also fall under the category of movable property.

To sum up, all the definitions provided under various Indian legislations, it can be said
that mainly three things constitute immovable property, namely, land, benefits arising
out of the land, and things attached to the earth. The last classification can further be
divided into three categories: things rooted in the earth, things embedded in the earth,
and things attached to what is embedded in the earth. Among the things attached to the
earth, standing timber, growing crops and grass fall under the exceptional category.

Land

In common parlance, the term ‘land’ constitutes a proportion of the earth which is not
covered by water. It can be connoted as an area of ground with regard to its ownership or use.
The term is intended to include all the things on the surface of the earth, feasibly the column
of space above the earth, and the ground below the surface of the earth. The word is
comprehensive enough to engulf even the things below the surface of the earth, say sub-soil,
mines, and minerals. It even covers the objects placed by the human agency on or under the
earth’s surface, provided it shall be done with the intention of permanent annexation. The
term also covers the things which are said to be land covered by water, for instance, well,
tubewell, rivers, ponds, lakes, and streams, which are dug on the earth’s surface. These may
be natural or artificial, as the case may be.

Benefits to arise out of the land

The phrase ‘benefits to arise out of land’ is considered under the purview of immovable
property since it is an interest in land. Even the definition provided in Section 2(6) of the
Registration Act, 1908 expressly includes this phrase under the category of immovable
property. Some examples of benefits arising out of land include rent received from the house,
revenue from agriculture, rent from shops and jagir, right to catch fish from pond or river,
and right to collect lac from trees. Also, the right to collect dues from the market or fair
situated on a plot of land, interest on the income from immovable property, lease of land, etc.
even the right to extract any minerals, right to conduct an exhibition of a piece of land, right
to possession, establish a hoarding or advertisement of the part of the land, right of the priest
to recover dues from the funeral, management of Sarjan land, interest of the mortgagee in the
property that has been mortgaged, etc. are all considered immovable property.

In the case of Ananda Behera And Another vs The State Of Orissa And Another (1955), the
Supreme Court of India held that a person’s right to enter upon land and to take away fish
from a pond is ‘A profits a prendre’, which is the right to take something from somebody
else’s land. Thus it falls under the purview of immovable property through the category of
benefits arising out of the land.

Things attached to the earth

The above-stated expression is separately defined under Section 3 of the Transfer of Property
Act, 1882, to include three categories: things rooted in the earth, things embedded in the
earth, and things attached to what is embedded in the earth.

Things rooted in the earth

By virtue of the definition provided under the General Clauses Act, the things rooted in the
earth are considered immovable property. Thus, trees and shrubs are considered immovable
property. Similar is the case with plants and herbs. However, it is pertinent to mention that
this expression does not include standing timber, growing crops and grass in this category.

In Suresh Chand v. Kundan (Dead) By Lrs. And Ors. (2000), the Supreme Court of India
held that standing timber is a part of the earth by virtue of it being rooted in the earth. When
any transfer of property of such a land takes place with timber rooted in it, then the interest in
the property is bound to include that standing timber or any other thing attached to the earth
unless it expressly or impliedly provided otherwise. Thus, the thing attached or rooted will go
to the transferee due to a legal incident of the property so transferred. Hence, the general rule
says that trees, shrubs, herbs, and plants are immovable properties.

However, when detached or cut from the earth, trees and shrubs can be sold separately as
movable property. This view was expressed by the Supreme Court in the case of Mathura
Das v. Jadubir (1905). Trees and shrubs though considered immovable property, as soon as
they get detached or are cut down, become movable property since it loses the character of
immovable property.

Things embedded in the earth

Etymologically, the term ‘embedded’ connotes something that is firmly fixed in a

surrounding mass. Embedding denotes a thing whose foundation is laid underneath the
earth’s normal surface and which becomes a part of the earth. Take, for instance, where stone
blocks are placed on one another to frame a wall. Though no mortar or cement is used, they
will be considered immovable property since it has become a part of the land. However,
when the same stone blocks are just stacked on top of each other in a builder’s yard in the
form of a wall, they will be treated as movable property.

There may be instances where the article is firmly fixed in the land; however, if the same has
not been done with the intention of it being a part of the land, then the same will not fall
under the purview of immovable property. For example, an anchor stands firmly fixed to the
ground to hold the ship, but the anchor was never fixed to the ground with the intention of it
being a part of the land. Thus, it will not fall under the category of immovable property.
Similarly, a road roller, heavy stone, etc will not be considered immovable property. In cases
where the property is embedded only up to an extent where its weight forces, it shall not fall
under the category of the term embedded.

Attached to what is so embedded

The things falling under this category are the ones through which permanent beneficial
enjoyment can be drawn from the immovable property to which they are attached. A thing
will only be said to be attached to the earth when in some way or the other, its permanent
beneficial enjoyment can be done. Doors, windows, shutters, etc are a few examples that fall
under this category. These are said to fall under this because they are attached to the house.
These things have no existence or meaning of their own. What good will a door do if there is
no house? However, it is important to understand that these things must be attached with the
intention of permanent fixation or attachment. However, fans, A.C., window blinds, sashes,
etc. will not be considered immovable property, even though they may be attached to the
house.

Thus the two most important things that need to be established while dealing with the fact of
whether a thing falls under this category or not are;

 Permanent attachment of the thing must be there; and

 It must be attached in order to experience the beneficial enjoyment of the thing to

which it is attached.

Exceptions

As discussed above, trees, shrubs, herbs and plants fall under the purview of immovable
property. However, in cases where such trees, shrubs, and herbs constitute standing timber,
crops and grass, they are movable property.

In the above case the term ‘standing timber’ includes trees whose woods will be used to
develop buildings, houses or any other infrastructure, to make ships, bridges etc. The English
Law includes oak, ash or elm trees under this category. In India, trees like neem, babul,
sheesham, teak, or bamboo are considered standing timber. However, ordinarily, the trees
that bear fruit stand on a different footing. These do not fall under the category of standing
timber. For example, mahua, mango, jack fruit, jamun trees, etc. are not considered standing
timber. The reason is they were grown with the intention of using their fruit and not for the
intention of cutting them and using them later on for construction or as wood. If their
intention would have been otherwise, it shall then be considered immovable property. Since
standing timber is not an immovable property, a document concerning it does not require
registration.
As stated above, crops also do not fall into the category of immovable property. In this
relation the term ‘crop’ means any plant grown for food mainly; it includes all the fruit
plants, fruit leaves, barks or roots, etc. It is to be noted that these crops are movable.

The third exception is grass. It consists of all the short plants having long harrow leaves.
These are movable properties, whether they are cut or not. The main use of grass is for fodder
purposes.

In Baijnath v. Ramadhan and Anr. (1962), it was held that the intention of the owner
while planting the tree clarifies whether a tree will be considered as standing timber or
not. In Kapoor Construction v. Leela Nagaraj & Ors. (2005), it was held that three factors,
namely, intention, mode of annexation and degree of annexation, determine whether the
property is movable or immovable.

It is pertinent to note that while distinguishing between the above two, the first thing that is
considered is that movable property can be transferred from its position without causing
damage or change in its shape, size, colour or appearance. The same is not the case with
immovable property. Any attempt made to move immovable property might affect the
property.

A sale deed of a mortgaged property, right of worship, promissory note, a piece of machinery
or whole machinery, a right to recover maintenance or any allowance, royalty, gold or any
jewellery that a person owns in his name, all these come under the category of movable
property. Factory, right of the ferry, fishery, harvesting, right to collect rent, a reversion in
property leased, right to collect the fruits of trees that are grown in one’s ownership, etc., are
some examples of immovable property.

If a thing or even the slightest of its parts is attached to the earth and goes deeper, then it is
considered immovable property. However, if something is just lying on the earth on its own
weight, then the same is regarded as movable property. While considering the provision of
transfer, registration is required in immovable property, but this is not the case in movable
property.
Jagdish v. Mangal Pandey (1985)

Court held that to determine whether a property will fall under the category of immovable or
movable property, the nature and intention must be taken into account first. In the case of
trees, the nature of the tree and the intention to cut will be considered first. If the intention is
to let it remain attached to the earth, it will be deemed as immovable property, and if the
intention is to cut it, the same shall be considered movable property.

State of Orissa v. Titagarh Paper Mills Company Limited

Supreme Court affirmed that “felling, cutting, obtaining and removing bamboos from forest
areas for the manufacture of paper” fall under the category of benefits arising out of the
land. Thus, it amounts to interest in immovable property.

To sum up, generally, it can be said that everything attached to the earth with the intention of
permanently fixing the same comes under the purview of immovable property. Apart from
this, everything else falls into the category of movable property.

The term movable property in common parlance constitutes any physically mobile property
or something that can be easily moved by any person. Movable property connotes almost
everything that is not affixed to land, irrespective of appearance, shape, size, colour, etc. The
items that fall under the category of immovable property are subject to various conditions and
restrictions as stated under various Indian statutes.

The term movable property has been defined diversely in various Indian statutes.

The General Clauses Act, 1897, in Section 3(36), defines the term to include property of
every description, except immovable property.

The Registration Act, 1908, in Section 2(l)(9), provides an inclusive definition of movable
property. According to this, it is to include standing timber, growing crops and grass, fruits
on the trees, and juice in trees, along with the property of every description other than
immovable property.
The term movable property is also defined under Section 22 of the Indian Penal Code, 1860.
It states the term is to include corporeal property of every description, provided that the same
is not affixed to the land. The main proposition to be understood here is that the property
must not be attached to the land. However, the same immovable property might become
movable as soon as severed from the earth.

The Supreme Court of India in the case of State of A.P. v. N.T.P.C. Ltd. (2002), held that
electricity falls under the category of property, and merely because it cannot be felt or
touched or moved, it will not cease to come under this category. Anything that possesses all
the attributes of a property can be considered property, be it a book, a piece of wood, patents,
copyrights, etc.

In the case of State Bank of Patiala v. Chohan Huhtamaki (India) Pvt. (1981), the
Himachal Pradesh High Court held that standing timber, growing crops, grass, or other such
things which are attached to the earth, but the intention of making them a permanent part of
the land is not present, for example, machines that are attached to land but can be shifted, all
these come under the purview of movable property. Apart from this, the right to worship,
promissory notes of the government, rights of a purchaser to register his land, royalty, etc
also fall under the category of movable property.

Kerala High Court in a 2024 judgement observed that rubber trees on a property
will not fall under “standing timber” under Section 3 of the Transfer of Property
Act, 1882, thus they are “immovable property”. The Court said that any
agreement for tapping such trees amounts to the creation of rights or interest for
consideration and, therefore, it must be registered. The Bench of Justice Kauser
Edappagath observed, “They are growing trees. Income is generated from the yield.
The trees do not perish after taking the yield once. There is no doubt that they would
not fall under “standing timber” falls under Section 3 of the Transfer of Property Act.
The rubber trees in the plaint schedule property indeed are trees and thus immovable
property. Thus, the transaction evidenced by the agreement is one which requires
registration under Section 17 of the Registration Act as it amounts to the creation of
right or interest in respect of immovable property for consideration .
 JUDGEMENT: The sale of Standing timber is generally not governed by Transfer
of Property Act, 1882. Standing timber is considered an immovable property, as it is:
1. Attached to the earth.
2. Part of the land.
However, once felled, timber becomes movable property. Factors like the nature of
the trees, intention of the parties , whether the trees have been completely uprooted of
not are relevant to verify whether it amounts to a transfer of movable or immovable
property from Mr. B to Mr. A .

8. George sold a land to John under an agreement that the John as well as
the successors will not construct more than one house on the land and
keeps the remaining land open for the benefit of George, John sold the
land to Mary. Mary decides to construct another building in the open
area contending that she is not bound by the agreement. George
initiated a legal action. Decide.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether this agreement restricting construction and maintaining of
open space for George's benefit, making it a covenant running with the land.
amounts to a Covenant Running with Land?

2:. Whether subsequent purchasers/transferees are bound by this covenant? In this

case, whether Mary is bound by the covenant between George and John?

REASONING/ANALYSIS: Refer answer to Q.No: 4 and rewrite it here with

necessary modifications.

JUDGEMENT: This covenant is binding on the original transferee (John), and his heirs,
successors, and assigns . Mary, as John's successor by purchasing the property, is bound by
the covenant. Mary being bound by the restrictive covenant; George can initiate legal action
to obtain injunction order to prevent Mary from constructing another building in the open
area. George may also seek Damages under Indian Contract Act, 1872.
 9. Mr. P borrowed Rs. 10,000 from Mr. Q on a mortgage on his house.
After one month Mr. P again borrowed Rs. 50,000 from Mr. Q on
another mortgage created on the same house. Both mortgages are due to
repay on the same day. When it is due to repay, Mr.P wants to redeem
the first mortgage only. Mr.Q declined to redeem the first mortgage on
the ground that both mortgages are required to be redeemed together.
Mr. P initiated a legal action to redeem the first mortgage. Decide.
Ans: FACTS: Rewrite key points from the question.

ISSUES: 1. Whether a mortgagor who has secured two separate loans by mortgaging the
same property twice to the same mortgagee is entitled to redeem any one of the them at a
time?

2. Whether the mortgagee can rightfully insist to redeem both mortgages together?

REASONING/ANALYSIS: Sec.61 of Transfer of Property Act, 1882 says about Right

of a mortgagor to redeem his mortgaged property separately or simultaneously.—

A mortgagor who has executed two or more mortgages in favour of the same
mortgagee shall, in the absence of a contract to the contrary, when the principal
money of any two or more of the mortgages has become due, be entitled to redeem
any one such mortgage separately, or any two or more of such mortgages together.
-Section 61 of the Transfer of Property Act, 1882 envisages a situation where the
mortgagor mortgages several properties to the same mortgagee. In such a situation,
when the principal amount becomes due, the mortgagor can either redeem the
properties separately or jointly.
Section 61 of the Transfer of Property Act entitles a mortgagor, who has executed two
or more mortgages in favour of-the same mortgagee, to redeem, in the absence of a
contract to the contrary, when the principal money of any two or more of the
mortgages has become due, any one such mortgage separately, or any two or more of
such mortgages together.
This Section was intended to statutorily recognize the abolition of the doctrine of
consolidation of mortgages and it is based on Section 17 of the Conveyancing
Act, 1881, corresponding to Section 93 of the Property Act, 1925. The law in
England before the Conveyancing Act was that a mortgagee was entitled to
 consolidate all the securities in his hands and compel the mortgagor to redeem all
of them or none. This was considered to cause a hardship to the mortgagor and
was therefore set right by Section 17 of the Conveyancing Act, 1881. Section 61 of
the Transfer of Property Act therefore was based on the corresponding English
provision to enable the mortgagor to redeem anyone or more mortgages or
simultaneously all the mortgages.

Held in Mootha Mohanraj Sowcar vs Manicka Goundar And Ors AIR1956MAD467.

JUDGEMENT: P is entitled to redeem any of his mortgaged properties from Q.

But, if there was any contrary agreement betwwen P and Q in this matter; then Q
would get the right to consolidate both mortgages and require P to redeem it together.

10. A sells to B a piece of land, a coal mine of which B is aware but not A. A comes to
know of the mine after the completion of the contract but before the sale is
completed. What is the remedy of under the Transfer of Property Act, 1882?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1.Whether the buyer’s non-disclosure and concealment of a fact
which materially increases the value of the property would entitle the seller to rescind
the contract or invalidate the sale?
2. Whether the buyer is legally bound to disclose to the seller any such facts which
materially increase the value of the property?
3. What are the remedies if any available to the seller when he gets knowledge about
such fact after the completion of the contract but before the completion of the sale?
4. Whether the buyer B’s non-disclosure and concealment of this material fact about
increase in property value would amount to Fraud?

REASONING/ANALYSIS:

Under the Transfer of Property Act, 1882, a buyer has a duty to disclose facts that
materially increase the value of the property. Sec.55(5) of Transfer of Property Act, 1882,
clearly lays down that the buyer is bound to disclose to the seller any fact as to the nature or
extent of the seller's interest in the property of which the buyer is aware, but of which he has
reason to believe that the seller is not aware, and which materially increases the value of such
interest. Buyer’s non-disclosure will amount to Fraud upon the seller..
Examples of such Disclosable Facts:

1. Hidden defects or features increasing value.

2. Mineral deposits, natural resources, or other valuable discoveries.
3. Plans or proposals for development or infrastructure projects.
4. Knowledge of pending litigation or disputes affecting the property.
5. Any other fact materially impacting the property's value.
Leading Case Laws:
Ram Narain v. Bansraj (AIR 1954 All 361): Buyer's knowledge of hidden mines
made contract voidable.
Narayan Bhaskar v. Govind (AIR 1962 Bom 131): Buyer's non-disclosure of
valuable timber rendered contract void.
Suraj Narain v. Sukhu (AIR 1963 All 517): Buyer's knowledge of pending
development plans made contract rescindable.

Raghunath v. Kamalakar (AIR 1962 MP 247)- Vulnerable parties may be subjected to

exploitation through undue influence , coercion, pressure, or domination. In this case;
Raghunath, an illiterate and poor farmer, owned a plot of land.Kamalakar, a educated and
influential person, was a friend of Raghunath. Kamalakar persuaded Raghunath to sell the
land to him. Raghunath agreed to sell for Rs. 500, significantly below market value.
Kamalakar prepared the sale deed without Raghunath's knowledge or consent.Raghunath
signed the deed, unaware of its contents or implications. Kamalakar did not disclose the true
value of the land.Raghunath's wife and son were not aware of the sale.

JUDGEMENT: From the facts of the case, it is evident that B; the buyer did not act in
good faith and is non-disclosure amounts to fraud upon the seller A.

B’s non-disclosure of the existence of coal mine in the seller A’s land can render the sale
void . The sale is voidable at the option of the seller A. A can rescind the contract or claim
compensation due to discovery of the coal mine before completion. A can choose to rescind
or seek compensation, considering:

1. Extent of B's knowledge and concealment.

2. Value enhancement due to the mine.
Thus, the sale contract is voidable at the option of the seller A. Parties to be restored
to original positions.
A ; the seller may rescind the contract (if sale not completed).
 A ; the seller may claim compensation (if sale completed). Completion of sale
transfers ownership. Rescission or compensation claims must must be made before
of the sale completion.

11.A gifted a piece of land to B. Later C sued A for maintenance claiming a

charge on this property. While the suit was pending B sold the land to D.
Subsequently A died and B was impleaded as A’s legal representative.
The suit was decreed. Is D’s title affected by lis pendens?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether transfer of property which is subject-matter of a suit [in
this case, a maintenance suit] during the pendency of such suit is valid?
2. Whether the transferee D’s title is affected by the court-decree?
3. Whether C can claim a charge over the property by virtue of the maintenance suit
filed against A?
REASONING/ANALYSIS:
Section 52 of the TPA embodies the lis pendens doctrine:
"During the pendency of any suit... no transfer... shall be made by any party to the
suit... of any interest... in such property." Section 52 of the TPA renders transfers
during lis pendens voidable.
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from
the concept based on the maxim “Pendente lite nihil innovature” which means that
nothing new must be introduced while a litigation or suit is pending.
This Doctrine states that the Transfer of property shall be restricted when there is a
litigation pending on the title or any rights that arise directly thereof involving an
immovable property.

Conditions for Applicability of the Doctrine of Lis pendens as provided in Section

52

 A suit or proceeding is pending.

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

This Doctrine is essential as it prevents Transfer of the title of any disputed property without
the Court’s consent, there can be endless litigation, and it will become impossible to bring a
lawsuit to a successful termination if alienations are permitted to prevail, and covenants are
not imposed. The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party
to the suit and the transfer shall be subservient to the result of the pending lawsuit.

Some examples for Non-Applicability of Lis Pendens doctrine:

 Lis pendens doctrine does not apply to a private sale by a creditor who holds the
right to dispose of the property that is mortgaged to him even when the borrower
has a redemption suit pending.
 The Doctrine also does not apply when the property is not described correctly,
making it unidentifiable.
 In a maintenance suit, where the property is mentioned only so that maintenance
payments can be determined transparently; the Doctrine does not apply when a
right to the said immovable property is not directly in question and alienations are
thereby permitted.
 The Doctrine fails to apply when a Court orders restoration of immovable property
under the Civil Procedure Code, Order 21, Rule 63.

Charge under the Transfer of Property Act, 1882 is an interest created over an immovable
property for securing payment of the amount which is due to the party.
Section 100 of the Transfer of Property Act, 1882 defines “charge”. It states that -
o Where a person’s immovable property is, by an act of parties or operation of law, made a
security for the payment of money to another, and this transaction does not amount to a
mortgage, the latter person is said to have a charge on the property; and all the provisions
therein contained which apply to a simple mortgage shall, so far will also apply to charge.
Section 100 does not apply to the following:
o A trustee’s charge on trust-property for the expenses in the execution of his trust.
o A charge against any property in the hands of the person to whom such property has been
transferred for consideration and without notice of charge.
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.
Types of Charges
 Contractual Charge (Charges Created by Act of Parties)
 A charge is created by the act of parties which is constituted by an agreement between two
or more persons.Under such agreement some immovable property is specified as security for
repayment of a certain sum of money, without transfer of any interest of that property. No
particular mode of creating a charge has been provided in this Act.
 Legal Charge (Charges Arising by Operation of Law)
It is a charge which is created without reference to any agreement or stipulation between the
parties, the charge is said to be created by provisions of law.
 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).

Paruchuri Rattamma vs Surugutchi Seshachalam Sarma And Ors AIR 1927 MADRAS 502

The only point in this case is whether the sale by the 1st defendant in favour of the plaintiff is
affected by the doctrine of lis pendens. The 2nd defendant who is the wife of the 1st defendant
brought a suit for maintenance and asked for a charge on the property of the husband. 1st
defendant sold one of the six items belonging to him to the plaintiff in order to pay off a decree
debt. The 2nd defendant obtained a decree for maintenance and the plaintiff's suit is for a
declaration that the charge in her favour is not binding upon the plaint property. Court held that
the plaintiff's sale was not affected by the doctrine of lis pendens and the charge for
maintenance would not bind the property is the hands of the plaintiff. When a wife brings a
suit against the husband for maintenance and asks for a charge on the property belonging to
him she does not ask for any right directly and specifically in respect of the property.In order
to get maintenance properly paid,she is entitled to ask for a charge and the Court in decreeing
maintenance gives her a charge on the property. The mere fact that she mentions in the plaint
all the property belonging to her husband would not make the property of the husband the
subject-matter of the suit. Hence, the right to immoveable property which was sold was not in
question in the suit for maintenance by the 2nd defendant.

Court also held that there is difference between the case of a widow seeking maintenance
against her husband's relations on the ground of their having family property and the case of a
wife asking for maintenance against the husband. The liability of the husband to maintain his
wife or to provide for her maintenance is a personal one and if he has property charge will be
given against the property. Even if there is no property the husband is bound to maintain the
wife and she would be entitled to ask for a decree for maintenance against him. A widow
claiming maintenance from her husband's relations is different and their liability arises from
there being family property in their hands..

It is only the residue that is left after discharging her husband's debts that will belong to her.
During her husband's life-time she had, no doubt, a right of maintenance against him but that
was only a matter of personal obligation on the part of the husband, quite independent of the
possession of any property and it did not form a charge upon his property.

A charge takes effect only from the date of the decree. In this case the decree was after the sale
and therefore it cannot be said that there was a charge on the property sold to the plaintiff on
the date of the sale. Where there is evidence to show that the 1st defendant was entitled to six
items of property and only one item was sold to the plaintiff. The 2nd defendant could have
been given a charge on the other items.

JUDGEMENT/DECISION: C's decree creates a charge on the property transferred by B to

D. Charge takes priority over D's title. D may face liability for maintenance payments.

C can also execute the decree against D based on the charge order against D's
property.

However, transfers made without notice of pending suit may be valid. D's knowledge of the
pending suit is crucial. If D was a bonafide purchaser for consideration ; then his title may not
be affected. Moreover, this being a a maintenance suit, and if the the property was
mentioned only so that maintenance payments can be determined transparently; then the Lis
pendens doctrine does not apply as the right to the said immovable property is not directly in
question and alienations pendete lite in such situations are not invalid..

12.Syama, a Hindu wife files suit for maintenance against her husband
claiming charge over his properties. While the suit was pending,
husband transferred the property to Gautham and the wife Syama got
charge over the same property. Advise Gautham.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether transfer of property which is subject-matter of a suit [in
this case, a maintenance suit] during the pendency of such suit is valid?
2. Whether the transferee Gautam’s title is affected by the court-decree and the
charge obtained by Syama?
3. Whether Syama can claim a charge over the property by virtue of the maintenance
suit filed by her against her husband?
4. What are the remedies available to Gautam?
 REASONING/ANALYSIS: Plz refer Q no: 11 and rewrite the same here with
necessary modifications.

JUDGEMENT: Sale of property by Syama’s husband to Gautam during pendency

of Syama’s maintenance suit is hit by the doctrine of Lis pendens. Charge creation
prioritizes Syama's interests. Gautham's rights are subject to Syama's charge. Gautam
may face liability for maintenance payments towards Syama.

However the validity of property transfer during pendency of litigation depends on

Gautham's knowledge about the existence of the pending litigation. Transfers made without
notice of pending suit may be valid. Gautham's knowledge of pending suit crucial.
Gautham's knowledge or non-knowledge about the pending litigation in respect of the
property affects transfer validity. May render transfer voidable. If Gautam was a bonafide
purchaser for consideration ; then his title may not be affected.

13.A makes a gift in favour of B and gives the deed to B. who accepts it.
Subsequently A refuses to register the deed or give possession of the
property to B. Discuss B’s right.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether refusal to register or hand over possession of the gift
affects its validity?
2. Whether the donee B can legally compel the donor A to register the gift?
3.Whether the donee B can legally compel the donor A to hand over
possession of the gift?
REASONING/ANALYSIS:
Legal Provisions involved:
Transfer of Property Act, 1882:
- Section 122: Gift defined
- Section 123: Gift deed registration
- Section 124: Acceptance of gift
Registration Act, 1908:
- Section 23: Presentation of documents for registration
- Section 25: Extension of time for registration
 - Section 49: Admissibility of unregistered documents

Section 122 of Transfer of Property Act says that a Gift to be valid must be made voluntarily
by the donor and accepted by the donee.

Section 123 says that for the purpose of making a gift of immovable property, the transfer
must be effected by a registered instrument signed by or on behalf of the donor, and attested
by at least two witnesses.For the purpose of making a gift of movable property, the transfer
may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

Initial Position:
1. B accepts the gift deed, indicating willingness to receive the property.
2. The gift deed is a valid transfer of ownership from A to B.
Subsequent Refusal by A:
1. A's refusal to register the deed: Registration is mandatory for immovable properties
worth more than ₹100 (Indian Rupees one hundred) under the Registration Act, 1908.
Non-registration doesn't invalidate the gift, but it affects its admissibility as evidence.
2. A's refusal to give possession: This constitutes a breach of the gift agreement.

Donee's Rights:

1. Right to insist on registration: The donee can require the donor (giver) to register
the gift deed (Section 123).
2. Registration at donee's expense: If the donor refuses, the donee can register the
deed at their own expense (Section 123).
3. Presentation within specified time: The donee must present the gift deed for
registration within four months from execution (Section 23, Registration Act, 1908).
4. Extension of time: The donee can apply for an extension (up to four months) for
valid reasons (Section 25, Registration Act, 1908).

Consequences of Non-Registration:

1. Admissibility as evidence: An unregistered gift deed may not be admissible as

evidence in court (Section 49, Registration Act, 1908).
 2. Presumption of invalidity: Non-registration may raise doubts about the gift's
validity.
B's rights are incomplete due to:
1. Non-registration.
2. Lack of possession.
A’s refusal to hand over possession[actual or constructive] frustrates the gift.
and denies B's rights. A's refusal to register and give possession delays completion of
the gift and creates uncertainty. A remains owner until registration and handing over
possession..A liable for maintenance, taxes, etc.
Supreme Court Judgments:
1. Ramakrishna v. Shivakumar (AIR 1966 SC 1433): Held that a gift deed can be
registered at the donee's expense if the donor refuses. Registration is desirable but not
mandatory. Donee can register gift deed at their expense .
2. K. Balan v. K. Rajalakshmi (AIR 2001 SC 1184): Clarified that registration of a
gift deed is not mandatory but desirable.
3. R. Venkatachalam v. R. Srinivasan (2016) 14 SCC 608: Reiterated that non-
registration doesn't invalidate a gift deed.

High Court Judgments:

1. Gopal Das v. Hazari Lal (AIR 1967 All 211): Held that a donee can file a suit for
specific performance to compel registration.
2. Smt. Kanta Devi v. Smt. Ram Piari (AIR 1972 Del 223): Decided that a donee can
register a gift deed without the donor's presence.
3. T. Narasimha Rao v. T. Venkata Subba Rao (2004) 1 ALD 577: Clarified that
registration is necessary for gift deeds exceeding ₹100.
4. Donee can file suit for specific performance (Gopal Das v. Hazari Lal).

JUDGEMENT: B has the right to compel A to get the gift deed reistered. B can file a suit
for specific performance under the Specific Relief Act, 1963, compelling A to execute the
deed and transfer possession , seek a mandatory injunction under the Specific Relief Act,
1963, directing A to register the deed and deliver possession.,claim damages for A's breach
of contract (gift agreement).or seek a Declaration from the court under the Specific Relief
Act, 1963, to affirm his ownership rights over the gifted property. May also claim damages
compensation for donor's refusal.

Time Limit: B must file the suit within three years from the date of refusal (Article 54,
Limitation Act, 1963). However, : if the gift deed includes conditions or clauses that have not
been fulfilled by B , then A may refuse to register or transfer possession.

14.A gives a property to B with a condition that he shall walk fifty

kilometers in a day. Discuss whether it is a valid lease.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether the lease is valid?
2. Whether conditional transfer of property is valid?
3. Whether the condition attached to the lease is reasonable?
4. Whether the condition attached to the lease can be regarded as valid consideration?

REASONING/ANALYSIS: Sec. 25 of Transfer of Property Act, 1882 says about

Conditional transfer.—
An interest created on a transfer of property and dependent upon a condition fails if
the fulfilment of the condition is impossible, or is forbidden by law, or is of such a
nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or
involves or implies injury to the person or property of another, or the Court regards it
as immoral or opposed to public policy.
Illustration(a)A lets a farm to B on condition that he shall walk a hundred miles in an
hour. The lease is void.(b)A gives Rs. 500 to B on condition that he shall marry A’s
daughter C. At the date of the transfer C was dead. The transfer is void.(c)A transfers
Rs. 500 to B on condition that she shall murder C. The transfer is void.(d)A transfers
Rs. 500 to his niece C, if she will desert her husband. The transfer is void.

Conditional Transfer in Property Law

 The conditions should not be prohibited by law. For example, X transfers a property
‘B’ to Y stating that he shall murder Z as a condition for the transfer. Such transfer is
void as the condition is prohibited by law.

 The conditions imposed should not involve any fraud or coercion acts.
 The conditional transfer in property law must not expect impossible or life-threatening
tasks or acts.
 There should be no public policy and interest violations when making a conditional
transfer in property law.
 The party should not transfer based on any immoral motives.
 The conditional transfer in property law should be free from any act that causes harm
and damage to a person or any property.
Types of conditional transfers in property law-

Condition Precedent: As per Section 26 of the Transfer of Property Act 1882, the conditions
that must be fulfilled before the property transfer is called a condition precedent. When the
actual transfer occurs, it is not mandatory that the condition precedent be strictly complied
Transfer of property can also be done with substantial compliance of the conditions.

Condition Subsequent: As per Section 29 of the Transfer of Property Act 1882, the conditions
that must be fulfilled after the property transfer is called a condition subsequent. It is a
mandatory condition that must be strictly followed and completed. The transfer can be
completed only after the subsequent has been completed.

An essential factor and requirement is that the conditional transfer in property law should be
lawful and must not have fraudulent actions involved. If found to be unlawful, it will be void
and cancelled by the court. For example, X offers to transfer the property to you on the
condition that Y causes injury to Z. This is immoral and void. The transfer cannot go through
with such types of conditions.

Wilkinson vs. Wilkinson -The party asked the other party to end the marriage and
divorce the husband for the transfer to be completed. This is an immoral act that violates
the other party’s interests. Hence, it was termed void, and the court held that it was
invalid to proceed with an act against public policy

 Condition Collateral: Conditions to be fulfilled simultaneously with the transfer.

A condition precedent requires specific conditions to be met before the property transfer takes
effect. Substantial compliance with the conditions is generally acceptable.

A condition subsequent requires certain conditions to be met after the property transfer. Failure
to meet these conditions can result in the transfer being voided.

A condition collateral involves conditions that must be met simultaneously with the property
transfer. The transfer is valid as long as these conditions are strictly followed.

Conditions involving immoral or impossible tasks are not valid and can render the conditional
transfer void. If a conditional transfer involves an unlawful act, it is considered void and can
be cancelled by the court.

Section 105 of Transfer of Property Act,1882 defines Lease:

Lease is a transfer of right to enjoy property for consideration such as rent, service,
etc.Here there is no clear consideration. Condition seems to be a servitude. rather than lease.

JUDGEMENT: Facts of the problem similar to illustration (a) to Sec.125 of Transfer of

Property Act,1882. The lease is void being a conditional transfer involving doing of a
coercive amd impossible act. Walking 50 km/day may be unreasonable (physical
impossibility) and contrary to public policy (health risks).

15.Rema and Gita are owners of two properties X and Y valued ten lakhs
and twelve lakhs. Both of them jointly executed a mortgage in favor of
Harish. Rema wants to redeem her property X by paying rupees ten
lakhs. Advise her.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. A jointly executed mortgage can be partially redeemed by one of
the joint-mortgagors[ here Rema]?
2. Whether consent of co-mortgagor[Gita] is required ?
3. Whether the mortgagee Hareesh can compel to redeem both mortgaged properties
together? In other words, can Harish deny the request of partial redemption of Rema
and refuse to release Rema’s property?
REASONING/ANALYSIS: Sections 60-63 of the Transfer of Property Act,
1882, deal with mortgage redemption.
Section 60: Right of mortgagor to redeem- The mortgagor (borrower) has the right to
redeem the property at any time after the mortgage deed is executed.
- Redemption can be done by paying the mortgage money (principal + interest).

Section 61: Obligation to redeem- The mortgagor is obligated to redeem the property
when:
- The mortgage period expires.
- The mortgagee (lender) demands payment.

Section 62: Time for redemption- The mortgagor can redeem the property:
- Within the mortgage period specified in the deed.
- After the mortgage period, if the mortgagee hasn't taken possession.

Section 63: Right to mortgagee's possession- If the mortgagor fails to redeem, the
mortgagee can:
- Take possession of the property.
 - Sell the property to recover the mortgage money.:
- Redemption by one of multiple mortgagors: If there are multiple mortgagors, one
can redeem the property on behalf of all (Section 60).
- Partial redemption: A mortgagor can partially redeem the property, but this may
require the mortgagee's consent.
- Mortgagee's liability: The mortgagee must deliver possession of the property to the
mortgagor upon redemption.

Relevant Case Laws:

- Kedar Nath v. Hari Ram (AIR 1962 SC 1136)
- Munshi Ram v. Lajja Ram (AIR 1963 SC 489)
- Santosh Kumar v. Raghubir Singh (2016) 14 SCC 789
Munshi Ram v. Lajja Ram (AIR 1963 SC 489) is a landmark Supreme Court case
related to joint mortgage redemption. Munshi Ram and Lajja Ram (brothers) jointly
mortgaged their properties to Bhagat Ram for Rs. 12,000. The mortgage deed
provided for joint liability.Munshi Ram paid Rs. 6,000 (half the mortgage amount)
and sought redemption of his share. Lajja Ram did not contribute to the payment.
5. Bhagat Ram refused to redeem Munshi Ram's share, citing joint liability.
Issues in this case were:
1. Can one joint mortgagor redeem their share separately?
2. Does joint liability prevent separate redemption?
Supreme Court held that a joint mortgagor can redeem their share separately. Clarified
that joint liability does not prevent separate redemption.Directed Bhagat Ram to
redeem Munshi Ram's share.
The court relied on Section 60 of the Transfer of Property Act, 1882. Emphasized the
principle of "severability" in joint mortgages.Distinguished between joint liability and
joint ownership.
This case established the right of joint mortgagors to redeem separately. Clarified the
law on joint mortgage redemption.Protected individual interests in joint mortgage
transactions.This case has been cited in numerous subsequent judgments and remains
a significant precedent in Indian property law.
JUDGEMENT: Rema has the right to redeem her property separately. Court
can direct Harish to redeem Rema’s share. However , if there is any agreement to the
 contrary between the parties ; then Rema would require to obtain consent of co-
mortgagor Geeta, mortgagee Harish or both.

16. Mr. A publishes a libel upon Mr. B. Here Mr. B transfers his right to
sue Mr. A for damages to Mr. C. Examine whether the transfer is valid.
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether right to sue can be treated as a kind of property?
2. Whether the right to sue can be transferred as per provisions of the Transfer of
Property Act, 1882?
3. Whether such transfer is valid?
4. Whether right to sue is an actionable claim within the purview of the Transfer of
Property Act, 1882?
REASONING/ANALYSIS: Legal provisions involved: Sec.3, Sec.6[e] and Secs.
130-131 of the Transfer of Property Act,:
Section 3 of Transfer of Property Act, 1882 defines ; “actionable claim means a claim
to any debt , other than a debt secured by mortgage of immovable property or by the
hypothecation or pledge of movable property , or to any beneficial interest in movable
property not in the possession, either actual or constructive , of the claimant, which
the civil courts recognises as affording grounds for relief, whether such debt or
beneficial interest be existent, accruing ,conditional or contingent.”

An actionable claim is transferable under the Transfer of Property Act. The transfer of
actionable claim is given under Chapter 8 of the Transfer of Property Act. Chapter eight of the
Transfer of Property Act is the last chapter of the Transfer of Property Act and it covers section
130 to 137.
Under Section 130 of the Transfer of Property Act, the mode of transfer of actionable claim
is described. 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.
Under Section 132 of the Transfer of Property Act, defines the liability of the transferee of
actionable claim. The liabilities and equities of the transferor are transferred to the transferee.
Some examples of actionable claim, these following claims are the actionable claim-:
1. Claim for arrear rent.
2. Claim for rent to fall due in future.
3. A choice offered to repurchase the property once again.
4. Book debts or claims
5. The right to claims maintenance.
6. Claim the benefit of the contract.
7. Deposit receipt.
The following claims are not the actionable claim-:
1. A claim which is decreed.
2. “Right to sue”, it is a right but it is not an actionable claim.

3. The claim for the mesne profits.

In the case of the Jugalkishore Saraf Vs Raw Cotton Co. Ltd., the Supreme Court held that a
judgment debt or decree is not an actionable claim ; for action is necessary.
In the leading case Lachmi Koeri Vs the State of Bihar, the Court has been pointed out the
transfer of arrears of rent is a type of a transfer of actionable claim. And the transfer of arrears
of rent could be transferred in accordance with the provisions of the Transfer of Property Act.
An actionable claim is property and the assignee has a right to sue to enforce the
claim. A right to recover an unascertained amount of damages resulting from breach
of contract or tort is a mere right to sue. If, however, one has a right to recover an
ascertained and definite debt, he may transfer it because it is an actionable claim.
Thus, suppose A is indebted to B for ` 2000 and B transfers the right to recover the
debt of C, the transfer is void. A beneficial interest in specific movable property is
also an actionable claim. It has been held that the right to claim the benefit of an
executory contract constitutes a beneficial interest in movable property [Jaffer Meher
Ali v. Budge Budge Jute Mills (1906) ILR 33 Cal. 702.].
Sec.6[e] of Transfer of Property Act clearly says that mere right to sue is not
transferrable. It was in the landmark case of Sethupathi v. Chidambaram, AIR 1938
PC 126., where it was held that a mere right to sue is something which cannot be
transferred. Here the word ‘mere’ itself means that the transferee has developed no
interest than just a bare right to sue.

For Example- A contracts to buy goods from B On due date A fails to take delivery and B sells
the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to
C. The transfer is invalid.

The term “mere” in this context refers to the right the transfer he has acquired and no interest
than a bare right to sue. And this right to sue cannot be transferred. The right to sue is a
personal remedy that can only be availed by the aggrieved party in a court of law. For
example 2 parties A and B enter into a contract for the sale of a property. One of the
clause contains that if either of the party fails to execute their part of the contract the other
parties can claim damages and such right is non-transferable. But in the situation where A
defaulted and be sold his part of the property along with the right to recover damages from A
to a third-party C then the suit filed by C for the recovery from A would be valid.
Henceforth when there is a transfer of a right of interest arising out of the property along with
the right to recover the profit search transfer is valid.
However, if the decree for damages has been passed it can be transferred as it is no longer a
mere right to sue.
A right to recover mesne profits is a mere right to sue and is not transferable.

The Privy Council in the case of Manmatha Nath Mullick v. Hedait Ali (1931) laid down the
difference between actionable claim and a mere right to sue. Where the lessor transferred to
another person ;his right to receive a clear, definite amount of rent arrears from the lessee
including the right to sue the lessee for recovery of these rent arrears; it would amount to a
transfer of actionable claim and not a mere right to sue.

A right to sue cannot be transferred as the transferee acquires no interest in the subject matter
of the suit as much as the owner of the property would. Example-X published defamatory
statements against Y and Y filed a suit against X. But Y cannot transfer his right to Z to
recover damages for him. If Y transfers his right to Z then this transfer will be held void.

JUDGEMENT: The transfer of right to sue against A for libel by B to C is invalid as it is in

the nature of mere right to sue and not an actionable claim.

17. Mr. Sajan creates a gift of his property to Ram making a condition that
if Ram would like to sell the property during the lifetime of Sajan’s wife,
he must sell It to her for one third of its actual value. Is it valid transfer?
Ans: FACTS: Rewrite key points from the question.
ISSUES: 1. Whether a conditional gift is valid?
2. Whether the condition is reasonable?
3. Whether it is a valid transfer of property ?
4. Whether Ram can take the gift by ignoring the condition?

REASONING/ANALYSIS: Section 122 of the TPA a Gift is valid if made voluntarily

by the donor and accepted by the donee. Conditions may be attached to the gift but
must be reasonable and not unlawful or impossible.
Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for alienation of
property-

 Section 10 lays down that where the transferee is absolutely restrained from
transferring his interest in his property to another person because of a condition
 which came along when the property was transferred to the transferee, then this
condition will be made void. The transfer, from the transferor to the transferee would
remain valid.
 For example, A transfers some property to B as a gift but with the condition that
while A is alive, B must not transfer the property to any other person. This condition
will be held void as it absolutely restrains B from transferring his interest in the
property to another person.
This is commonly known as the ‘rule against alienability’. The Transfer of Property Act is
based on the principle that there can be a free transfer of property and has been specifically
made with regard to free transfer. If conditions restraining transfer are imposed, then the free
transfer would be restricted and there would be no use for the Transfer of Property Act.

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

Types of restraints

Absolute Restraints

 An absolute restraint is such a restraint which completely takes away the right of the
transferee to alienate or dispose of the property. The transferee can now no longer
transfer his interest in the property to another person and he has no freedom to do
what he wants with the property in his capacity as the owner of the property.
 Section 10 stipulates that any condition imposed on the transferee which would
amount to an absolute restraint on the right of the transferee to dispose of his interest
in the property shall be void. The property must be transferred to the transferee
subject to the condition.
 In Rosher v. Rosher (1884) 26 Ch D 801, A made a gift of a house to B, and gave a
condition that if B decides to sell the house during the lifetime of A’s wife, she
should have the option of purchasing it for Rs 10000, while the market value of the
house was set at Rs 10,00,000. This condition was held to be an absolute restraint
and was declared void.
 In Mohd Raza v. Abbas BandiBibi,(1932) 59 IA 236, a condition imposing
restriction for a particular time or transfer to a specific person has been held to be
void.
Partial Restraints

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

Exceptions to the restraints

Lease

A lease is a transfer of property wherein the lessee only has the right of enjoyment of the
property, while the ownership right is still with the lessor. Conditions imposing restrictions are
valid in the case of a lease, where the condition is for the benefit of the lessor or those claiming
under him. In Raja JagatRanvir v. Bagriden, AIR 1973 All 1, a condition in the lease that the
lessee shall not sublet or assign was held to be valid.

Married Woman

When the property is to be transferred to a married woman, who is not a Hindu, Mohammedan
or Buddhist, then the condition restricting alienation can be valid.

Repugnant conditions

 Section 11 of the Transfer of Property Act contains conditions which are inconsistent
with the nature of the interest transferred are repugnant conditions. These conditions
come with the transfer when the transfer confers to the transferee, absolute interests
in the property. Any condition with a transfer of absolute interests in the property
will be void.
  When a property is transferred absolutely, it must be transferred along with all its
legal incidents. In Manjusha Devi v. Sunil Chandra, AIR 1972 Cal 310, the parties
entered into a sale for a piece of land. In the sale deed, it was mentioned that the
buyer could only use the land for setting up a factory for jute textile manufacturing.
It was held that this condition was invalid as the absolute interests in the land had
been transferred to the buyer and he could use it as he pleased.

An exception to Section 11

If the transferor has another piece of immovable property, he may, for the benefit of that
property, impose conditions of restrictions on the transferee’s right of enjoyment. For example,
A has two properties: X and Y. A sells them to B with the condition that a portion of X, adjoined
to Y, shall be kept open for the benefit of Y. This condition will be valid.

Positive and negative conditions

 Positive conditions: These are those conditions imposed on the transfer where the
transferor imposes a condition on the transferee to do some act. For example, A
transfers land to B, on the condition that he shall maintain and keep filling up the
well on that plot of land. This condition is positive.

 Negative conditions: These are those conditions imposed on the transfer when the
transferor imposes a condition on the transferee to not do some act. For example, A
transfers land to B, on the condition that he shall leave open a four feet wide space
on the land, and would not build anything on it.

Difference between Section 10 and Section 11

 Section 10 specifies that in a transfer with condition that absolutely restrains the
alienation of the property by the transferee, the condition will be deemed to be void.

 Section 11 specifies that in a transfer where absolute rights in the property have also
been alienated to the transferee, and where a condition is imposed that the transferee
cannot, in spite of having the absolute right in the property, do an act for his
enjoyment of the property, such condition will be deemed to be void.
  Thus, the differences in these sections are that in Section 10 the condition is deemed
void due to absolute restrainment and in Section 11, the condition is deemed void
due to the transfer being of absolute nature.

Condition of insolvency

 Section 12 provides that when the transferee becomes insolvent, and if he has some
interest in the property that was transferred to him by the transferor, the transferee
still would not lose his interest in the property. Hence, any condition stating that
transferee shall lose the interest in the transferred property on insolvency and this
interest shall be reverted back to the transferor shall be void.

 However, this section does not apply to a condition on a lease for the benefit of the
lessor or those claiming benefit under him. However, in Smith v. Gronow (1891) 2
QB 394, if lessee assigns the lease and then is rendered insolvent, then this condition
will not apply.

Conclusion

The Transfer of Property Act, 1882 has been made for the regulation of the free transfer of
property in India. This transfer can be in the present or the future and must be between living
persons. This article also explores what can be transferred under this Act, and who are the ones
competent to transfer. The concept of alienation was also explored. Earlier, under the classical
law, the father or the Karta had the right to alienate the joint family property without the consent
of the coparceners, but now conditions have been introduced to regulate this.

Section 10, 11 and 12 contain certain conditions under which restraining of alienation of the
property by the transferee is void. It also has exceptions where these conditions may be valid.
Primarily, under Section 10, conditions of restraint can be classified into two categories:
absolute and partial. Whether a condition is absolute or partial is determined by the substance
of that condition, not merely the words. This article explored other conditions such as positive
and negative and insolvency, along with their exceptions.

Facts of the problem similar to those in the leading case of Rosher v. Rosher (1884) 26 Ch D
80.
 JUDGEMENT: The transfer is valid but the condition is void under Sec.10 of the Transfer
of Property Act, 1882 as it absolutely restricts the done Ram from selling the property at a
priceof his choice. The gift is valid but the done Ram is not bound by the condition imposed
by Sajan.

18.Raju mortgages his ten cents of land to Damu and Damu builds a
house. When Raju sued for redemption, Damu demands compensation.
Advise both.

Ans: FACTS: Rewrite key points from the question.

ISSUES: 1. Whether mortgagor is bound to compensate the mortgagee for

improvements made by the mortgagee on the mortgaged property?

2. Whether the mortgagee has the right to make improvements upon the mortgaged
property[ with or without consent of the mortgagor] and refuse redemption of the
mortgaged property until payment of compensation?

REASONING/ANALYSIS: Legal Provisions involved:

Right to Improvements (Section 63A of Transfer of Propert Act,1882)

Under Section 63A of the Act, if the mortgaged property experiences improvements while it is
in possession of the mortgagee, then upon redemption, and in the absence of any contract
stating otherwise, the mortgagor is entitled to benefit from those improvements. The mortgagor
is not obligated to compensate the mortgagee for these improvements unless:
 The mortgagee made improvements to protect the property or with the prior permission of the
mortgagor.
 The mortgagee made the improvements with the permission of a public authority.
The purpose of this provision is to ensure that the mortgagor can benefit from any
enhancements or developments that occurred during the mortgage period without bearing an
additional financial burden.
Section 63A deals with the law related to the improvements made by the mortgagee in the
mortgaged land. When the mortgagor gives his property to the mortgagee as collateral to the
loan provided, then only legal rights of that mortgaged property are transferred to the
mortgagee and not the possession of the land.
Shepard v. Jones (1907) Held that a mortgagee is allowed to obtain compensation from the
mortgager if the improvement made is reasonable. According to the English law, as
summarized by Fisher on Mortgagees (Art. 1782) “the improvements must always be
reasonable having regard to the nature and value of the estate; for it, were not so, a weapon
would be put in the mortgagee’s hands with which he might greatly clog the right of redemption
which he has no right to make more expensive than is necessary to keep the estate in good
repair and working order and to protect the title.”

There are few conditions given in Section 63A dealing with the improvement in the mortgaged
property.

When the mortgage is in progress and the mortgaged property is in the possession of the
mortgagee and he improved the property then, in the absence of any contrary contract, the
mortgagor is liable to pay the costs of improvement as an addition to the principal with the
same rate of interest. If the rate of interest is not fixed, then at the rate of nine per cent per
annum in the following cases:

1. It was necessary to preserve the property from deterioration or destruction or

2. It was necessary to prevent the security from becoming insufficient or

3. It was made in the compliance of a lawful order given by a public servant or public
authority like Panchayat, Municipality, etc.
And if any profits are accrued by the reason of improvement, then the mortgagor is entitled to
those.

The object of this section is to prevent the mortgagee from improving the mortgaged property
in such a way that it becomes impossible for the mortgagor with his means to redeem the
property and if it becomes necessary to improve the mortgaged property, then it gives the
mortgagee right to do so under Section 63A and Section 72. If the mortgagee failed to provide
any evidence to support his claim that the improvement made was necessary to preserve the
property, then he shall not be entitled to any relief or compensation.

For instance, if the mortgagor erects a pucca house by replacing the kutcha house, then it will
not be considered as an improvement under Section 63A. For increasing yield, if mortgagor
improved the fertility of the soil of the mortgaged land, then also it will not be considered as
an improvement.

The term repair and improvement have very different meanings when it comes to the law.
Although sometimes we use these terms as synonyms but in this statute, they have different
meanings. According to Stroud’s Judicial Dictionary, The term repairing is different from the
term improvement. “Repairs are often used in the plural that is not technical suppression and
invokes the idea of something pre-existing, the condition of which has been affected in one of
the modes suggested and presupposes something in existence to be repaired or the existence of
the thing to be repaired. The term ‘repairs’ has been held to include improvements and embrace
rebuilding.”

Principle

The mortgagee although received the possession of the mortgaged property but it is not the
same as that of the owner or the mortgagor. He is entitled to any benefit arising out of that
property till mortgage exists but it also becomes necessary for him to improve the property so
that his security does not suffer and the contrary is maintained in a good condition. He doesn’t
get the right over the property to change its nature or character, to commit ameliorative waste
or reduce its value in any way. He can do improvements by taking the consent or acquiescence
of the mortgagor and any expenses done for the maintenance or improvement of the property
by him are allowed to be added in his security.

Nijalingappa Nijappa Halagatti v. Chanbasawa Kom Satavirappa Nesari and Anr. (1919)

Held that in a redemption suit, a mortgagee from his mortgagor is allowed to recover the
reasonable and proper costs incurred in making improvement i.e. making the property more
productive; and that in allowing costs of improvements the Court should inquire into the
fairness of claims in each and every case and also must naturally be on its guard against
extravagant or unfounded claims.
Ram Asray v. Hiralal (1948)

Mortgagors mortgaged a kutcha house to the mortgagee by transferring the possession of the
property to him. The mortgagee demolished the house and built a new building without any
justification or authority. It was held that the new building built by the mortgagee was, in fact,
improvement and by no stretch of the imagination could be called an accession. The mortgagor
in the present case cannot claim the benefit of such additional income from the property as may
have resulted from the improvement made i.e. construction of the new building by the
mortgagee at his own cost which he was, under the existing law, not able to recover.

The local Municipal Committee found that the mortgaged property is in a very dangerous
condition and can fall any time. So a notice was notified to the mortgagee to demolish the
mortgaged property within six hours of notification. In the deed, it was mentioned that any
improvement in the property will be made by the mortgagee and the additional expenses will
be incurred thereon with the same rate of interest as that of the loan provided. The loan was of
Rs. 600 and the cost incurred on rebuilding the house was Rs. 1,120. The mortgagor contended
that it was not necessary to demolish and rebuild the house if the mortgagee would have kept
the house in good condition by doing ordinary repairs and even if the mortgagee was otherwise
entitled to the repair cost, he was not entitled because of his own default. The sentence was
passed in the favor of the mortgagee as there was no evidence on record to show that the
mortgagee neglected to repair the house and thus allowed it to fall into a state of disrepair. It
was held that under the deed, the mortgagee is entitled to the cost of improvement and the
interest thereon.

To conclude, after reading Section 63A of the Transfer of Property Act, 1882 and relevant case-
laws in detail it can be said that the mortgagee will be entitled to the money for the improvement
if the case comes under the purview of subsection 2 of the said section. If there is a contract
between both the parties, then Section 63A will not apply but the provisions under the contract
will. In the absence of the contract, if the question arises that if the mortgagor has to pay for
the improvements made by the mortgagee, then Section 63A will be considered to answer the
question. The mortgagor only transfers the legal rights of the property to the mortgagee, not
the complete possession as the owner has. It is the duty of the mortgagee to take care of the
security and to retransfer after the repayment.
 JUDGEMENT: In the absence of any contract to the contrary or any situations mentioned
under subsection 2 of Section 63A of the Transfer of Property Act, 1882;the mortgagee Damu
cannot claim compensation from the mortgagor Raju for the building constructed by Damu on
the mortgaged property.