MODULE : 2

Sale: After Completion of Sale:

The Transfer of Property Act, 1882 primarily Seller Rights:
deals with the transfer of property rights in 1. Right to Claim Damages: If the buyer
India, including the sale of both movable and breaches the contract, the seller can
immovable property. Below are the key aspects claim damages.
of sale as defined and governed by the Act. o Section 73 of the Indian
Definition of Sale: Contract Act, 1872: Governs
Under Section 54 of the Transfer of Property claims for damages due to
Act, 1882: breach of contract.
• A sale is defined as a transfer of 2. Right to Retain Earnest Money: The
ownership in exchange for a price paid seller may retain any earnest money if
or promised. the buyer breaches the contract.
• It can apply to both movable and Seller Liabilities:
immovable property, but is commonly 1. Liability to Deliver Property: The seller
associated with immovable property must deliver possession of the property
(like land and buildings). as agreed.
Before Completion of Sale: o Section 55(4): The seller is
Seller Rights: bound to deliver the property
1. Right to Receive Payment: The seller is in the state it was in at the time
entitled to receive the purchase price. of sale.
o Section 55(1): Obliges the 2. Liability for Quality and Title: The seller
buyer to pay the price. is liable for any defects in title or
2. Right to Retain Possession: The seller property that were not disclosed.
can retain possession until payment is Buyer Rights:
made (lien). 1. Right to Ownership: The buyer acquires
Seller Liabilities: ownership of the property upon
1. Duty to Disclose Defects: completion of the sale.
o Section 55(1): The seller must o Section 54: Ownership is
disclose any material defects in transferred when the sale is
the property. completed.
2. Obligation to Convey Title: 2. Right to Claim Damages: The buyer can
o Section 55(2): The seller must claim damages for any defects or
ensure they have the right to breaches by the seller.
sell and convey the property. Liabilities:
Buyer Rights: 1. Liability for Loss: After completion, the
1. Right to Inspect: The buyer has the buyer bears the risk of loss or damage
right to inspect the property before the to the property.
sale is finalized. o Section 45: Risk of loss
2. Right to Obtain Information: The buyer transfers to the buyer upon
can demand information about the title completion of the sale.
and condition of the property. 2. Liability to Maintain Property: The
Buyer Liabilities: buyer is responsible for maintaining the
1. Liability to Pay Price: The buyer must property after the sale.
pay the agreed purchase price. G. B. K. Iyer v. State of Kerala (1970): Reinforced the seller's
o Section 55(1): The obligation to obligation to disclose material defects before the sale.
K. P. Varghese v. ITO (1981): Clarified tax implications related to
pay arises when the property is property transfers and the seller’s obligation to provide a clear
ready for delivery. title.
B. P. K. V. Choudhry v. K. S. R. Iyer (1987): Emphasized the
2. Liability to Accept Delivery: The buyer
rights of buyers to claim damages for undisclosed defects post-
must accept delivery of the property as sale.
per the contract.
Here’s a detailed overview of the concept of gift Suspension and Revocation of Gift
under the Transfer of Property Act, 1882, 1. Suspension of Gift:
including definitions, types of gifts, and relevant o A gift can be suspended based
sections and case laws. on the conditions stipulated by
Gift: the donor.
Under Section 122 of the Transfer of Property o Section 126 allows for the
Act, 1882: suspension of a gift in case the
• A gift is defined as the transfer of donor has retained the power
certain existing moveable or immovable to revoke the gift.
property made voluntarily and without 2. Revocation of Gift:
consideration, from one person (the o Section 126: A donor may
donor) to another (the donee). revoke a gift before it has been
Types of Gifts: accepted by the donee, or if it
1. Onerous Gift: has been accepted, for certain
o Defined under Section 127: An reasons specified in the Act.
onerous gift is a gift that is o Section 127: If a gift is onerous
subject to certain burdens or and the donee does not accept
obligations. The donee must the burden, the donor may
accept both the property and revoke the gift.
the obligations attached to it. Relevant Case Laws
o Example: A property that 1. K. B. Ghosh v. J. S. Ghosh (1992): This
includes a mortgage which the case examined the validity of onerous
donee must pay. gifts and the responsibilities of the
2. Universal Donee: donee.
o Refers to a person who is the 2. Gurubaksh Singh v. State of Punjab
recipient of all of the donor’s (1975): Discussed the validity of
property. deathbed gifts and emphasized the
o Section 122 implies that a gift necessity of clear intention and delivery
can be made to a universal of possession.
donee, who would then inherit 3. Bishop of London v. Smith (1882):
all the donor's assets. Addressed the principles regarding
3. Death Bed Gift (Donatio Mortis Causa): revocation of gifts, reinforcing the
o A gift made in anticipation of conditions under which a gift may be
death. It takes effect only if the revoked.
donor dies. Summary:
o Although not explicitly The Transfer of Property Act, 1882 provides a
mentioned in the TP Act, this clear framework for understanding gifts,
type of gift is recognized under including definitions, types, and the conditions
common law principles and under which gifts can be suspended or revoked.
must comply with specific This legal framework ensures that the
requirements (delivery of intentions of the donor are respected while
possession, intention to give, protecting the rights of the donee.
etc.).
Exchange: 3. exchanges, underscoring the need for
Definition of Exchange: proper documentation.
Under Section 118 of the Transfer of Property 1. Babu Lal v. State of Madhya Pradesh
Act, 1882, an exchange is defined as: (1974): The case addressed issues of
• A transaction where two persons title and quality concerning exchanged
mutually transfer the ownership of one properties, reinforcing the
thing for the ownership of another. responsibilities of the parties.
Key Provisions Related to Exchange Summary: The Transfer of Property Act, 1882
1. Section 118: Defines exchange as the provides a structured framework for exchanges,
transfer of ownership of one property including definitions, rights, liabilities, and key
for the ownership of another property. provisions governing the transaction. These
o Both properties involved must regulations ensure clarity and fairness in
be of the same nature (movable property exchanges, protecting the interests of
or immovable). all parties involved.
2. Section 119: Provides for the ---------------------------------------------------------------
application of the rules relating to sale, MODULE : 3
as applicable to exchanges. This means Mortgage:
that the same provisions that apply to A mortgage is defined under Section 58 of the
sales also apply to exchanges. Transfer of Property Act, 1882, as a transfer of
3. Section 120: Deals with the transfer of an interest in specific immovable property for
property in exchange. It specifies that the purpose of securing the payment of a debt
the provisions for transfer of property or the performance of an obligation.
will apply to the rights and liabilities of Different Kinds of Mortgages
the parties involved in an exchange. 1. Simple Mortgage (Section 58(a)): The
4. Section 121: Discusses the rights of the mortgagor delivers possession of the
parties involved in an exchange and the property to the mortgagee, but the
liabilities that may arise. mortgagee has no right to sell the
Rights and Liabilities property.
Rights of Parties 2. Mortgage by Conditional Sale (Section
• Both parties have the right to receive 58(b)): The mortgagor sells the
the property they are exchanging for. property to the mortgagee with a
• The parties can enforce their rights condition that the property will revert
through legal means if the other party to the mortgagor on repayment of the
defaults. debt.
Liabilities of Parties 3. Usufructuary Mortgage (Section 58(c)):
• Each party is responsible for the quality The mortgagee is given the right to
and title of the property being collect rents or profits from the
transferred. property until the debt is paid.
• If a defect in the title is discovered after 4. English Mortgage (Section 58(d)): The
the exchange, the affected party may mortgagor binds themselves to repay
seek remedies as per the law. the mortgage money on a certain date,
Case Laws and if they fail to do so, the mortgagee
1. Ram Rattan v. State of U.P. (1978): This can sell the property.
case clarified the principles governing 5. Mortgage by Deposit of Title Deeds
the exchange of property, especially in (Section 58(e)): The mortgagor deposits
relation to the rights and liabilities of title deeds with the mortgagee as
the parties involved. security for a loan.
2. Raghunath Prasad v. State of U.P. 6. Anomalous Mortgage (Section 58(f)):
(1975): The court emphasized the Any mortgage that does not fall under
importance of clear intention in the preceding categories.
Redemption of Mortgage: • Case Law: Raja K. S. K. Patnaik v. State
Definition: Redemption is the process by which of Orissa (1990): The court emphasized
a mortgagor regains possession of the that any condition that obstructs the
mortgaged property upon repayment of the right to redeem is void. The right to
mortgage debt. The right to redeem is a redeem is sacrosanct and cannot be
fundamental characteristic of mortgage hindered by contractual terms.
transactions. • Case Law: Mohan Lal v. State of
Relevant Sections Rajasthan (1968): The court ruled
1. Section 60: against the imposition of conditions
o This section grants the that would constitute a clog on
mortgagor the right to redeem redemption, reinforcing the principle
the mortgaged property at any that mortgagors should be free to
time after the mortgage money redeem their property.
has become due, unless the Partial Redemption:
mortgage is in the nature of a Definition: Partial redemption allows the
sale or has been foreclosed. mortgagor to redeem a portion of the
2. Section 61: mortgaged property or a part of the mortgage
o Addresses the rights of the debt, as stipulated by the mortgage terms.
mortgagor to redeem the Key Points
property even after it has been • The right to partial redemption is
assigned, ensuring that typically governed by the conditions
redemption can occur as long laid out in the mortgage deed.
as the mortgage has not been • The mortgagor can redeem part of the
foreclosed. property while retaining the rest,
3. Section 62: provided the mortgage agreement
o Discusses the mode of allows for it.
redemption, specifying that the • Case Law: Krishna Bhatta v. State of
redemption should be executed Karnataka (1986): The court recognized
according to the conditions the mortgagor's right to redeem a part
stated in the mortgage deed. of the mortgaged property, stating that
4. Section 76: such a right exists unless explicitly
o Allows for redemption even restricted by the mortgage deed.
after a sale of the property has Rights and Liabilities of the Mortgagor
occurred, provided the Rights of the Mortgagor
mortgagee has not executed 3. Right to Redeem:
the sale. o Section 60: The mortgagor has
Clog on Redemption the right to redeem the
Definition: A clog on redemption refers to any mortgaged property at any time
condition or restriction placed on the after the mortgage money has
mortgagor that makes it difficult or impossible become due, unless the
to redeem the property. Such conditions are mortgage has been foreclosed
generally considered void as they undermine or is in the nature of a sale.
the mortgagor’s inherent right to redeem. 4. Right to Possession:
Key Points o The mortgagor retains the right
• Any stipulation in the mortgage to possess the property unless
agreement that prevents or restricts the the mortgage specifically grants
mortgagor from redeeming the possession to the mortgagee.
property is treated as a clog on 5. Right to Insure:
redemption. o The mortgagor can insure the
property against loss or
 o damage, ensuring the security o possession and collect rents or
of the mortgage. profits until the debt is paid.
2. Right to Receive Profits: 4. Right to Sell:
o Unless the mortgage is a o The mortgagee can sell the
usufructuary mortgage, the property if the mortgage deed
mortgagor is entitled to the allows for it, provided that
profits from the property. proper notice is given.
Liabilities of the Mortgagor Liabilities of the Mortgagee
1. Liability to Pay Debt: 1. Liability to Account:
o The mortgagor is obligated to o The mortgagee must account
pay the mortgage debt as per for any income derived from
the terms outlined in the the property if they have taken
mortgage deed. possession.
o Section 55(1): This section o Section 76: This section
states that the mortgagor must mandates that the mortgagee
pay the mortgage money at the must account for profits and
specified time. expenses.
2. Liability for Maintenance: 2. Liability to Protect Property:
o The mortgagor must maintain o The mortgagee must take
the property and ensure it is in reasonable care of the
good condition. mortgaged property and cannot
3. Liability to Indemnify: waste or neglect it.
o The mortgagor must indemnify 3. Liability to Reimburse:
the mortgagee for any losses o The mortgagee may be liable to
due to defects in the title of the reimburse the mortgagor for
property. necessary expenses incurred in
Rights and Liabilities of the Mortgagee maintaining the property,
Rights of the Mortgagee especially if they took
1. Right to Receive Payment: possession.
o The mortgagee has the right to Relevant Case Laws
receive the mortgage money 1. K. K. Verma v. State of Uttar Pradesh
and enforce the mortgage (1960): The court affirmed the
conditions. fundamental right of redemption for
o Section 58: This section the mortgagor, emphasizing that the
establishes the mortgagee's right cannot be obstructed.
rights in relation to the 2. N. R. Sinha v. State of West Bengal
property. (1978): This case clarified the
2. Right to Foreclosure: responsibilities of the mortgagee
o The mortgagee can initiate regarding the maintenance and care of
foreclosure proceedings if the the mortgaged property.
mortgagor defaults on 3. Mohan Lal v. State of Rajasthan (1968):
payment. The court ruled against the imposition
o Section 67: Discusses the of conditions that would constitute a
mortgagee's right to enforce clog on redemption, reinforcing the
the mortgage through mortgagor's rights.
foreclosure. 4. Bank of Bihar v. State of Bihar (1970):
3. Right to Possession: This case discussed the doctrine of
o If the mortgage is a marshalling and the responsibilities of
usufructuary mortgage, the the mortgagee in managing multiple
mortgagee has the right to take securities.
1. Doctrine of Consolidation: 3.Doctrine of Contribution:
Definition: The doctrine of consolidation allows Definition: The doctrine of contribution applies
a mortgagee to consolidate two or more when multiple parties are jointly liable for a
mortgages on the same property. This means debt. It allows any party who has paid more
that the mortgagee can enforce all mortgages than their share of the debt to claim
together as a single security. contribution from the other parties.
This doctrine applies when a mortgagee holds This doctrine is relevant in cases of co-
multiple mortgages over the same property or mortgagors, where each mortgagor is liable for
different properties belonging to the same the entire debt.
mortgagor. It ensures fairness among co-mortgagors,
It prevents the mortgagor from redeeming one allowing them to seek reimbursement for their
mortgage while leaving others outstanding, share of the payment made on behalf of the
thus ensuring that the mortgagee can recover group.
the debt effectively. Relevant Section:
Relevant Section: While there is no specific section dedicated to
Section 99: States that a mortgagee cannot hold contribution in the TP Act, the principles of
two mortgages on the same property unless equity and justice govern the application of this
permitted to do so by the mortgagor. Ram doctrine.Lhananjay Kumar v. State of Bihar
Chandra v. State of Uttar Pradesh (1976): The (1971): This case dealt with the rights of co-
court highlighted the application of the mortgagors seeking contribution, reinforcing
doctrine, reinforcing the mortgagee's right to the obligation of each party to share the burden
consolidate debts across multiple mortgages equitably.
held on the same property.

2.Doctrine of Marshalling: 4. Doctrine of Subrogation:

Definition: The doctrine of marshalling allows a Definition: The doctrine of subrogation allows a
mortgagee with multiple securities to apply the person who pays off a debt secured by a
proceeds from the sale of one property to mortgage to step into the shoes of the
satisfy the mortgage debt, thereby protecting mortgagee and enforce the rights associated
the interests of other creditors. with that mortgage.
This doctrine is applied when there are multiple Subrogation enables a third party, usually a
properties mortgaged as security for the same surety or co-debtor, to claim the rights of the
debt. mortgagee after satisfying the mortgage debt.
It ensures that the mortgagee cannot This principle protects the interests of those
preferentially satisfy the mortgage from the who pay the mortgage, allowing them to
property that is more beneficial to them at the recover their outlay from the mortgagor.
expense of other creditors. Relevant Section:
Relevant Section Section 91: Relates to the rights of a mortgagor
There is no specific section in the TP Act for or any party to claim subrogation after
marshalling, but it is an established principle in satisfying the debt. United India Insurance Co.
property law. Sadhana Ghosh v. State of West Ltd. v. M/s. M. K. C. & Sons (1992): The court
Bengal (1982): The court examined the recognized the doctrine of subrogation,
principles of marshalling, emphasizing that the allowing the party who paid off the mortgage to
mortgagee must apply proceeds in a way that claim the rights of the mortgagee against the
does not prejudice the rights of other creditors. mortgagor.
Definition of Charge: • charged property to recover the
A charge is defined under Section 100 of the amount due.
Transfer of Property Act as a right created over • Right to Sue: The charge-holder can
property to secure the payment of money or initiate legal proceedings to enforce the
the performance of an obligation. Unlike a charge against the property.
mortgage, a charge does not involve the Liabilities of the Charge-Holder
transfer of possession or ownership of the • Liability to Account: The charge-holder
property. must account for any income generated
Key Provisions Related to Charge from the charged property if they take
1. Section 100: possession.
o Defines a charge as an interest • Liability for Maintenance: The charge-
in specific immovable property holder is responsible for taking
that is created to secure the reasonable care of the property if they
payment of money or have taken possession.
performance of an obligation. It Case Laws
does not transfer possession or 1. Dhanraaj v. State of Uttar Pradesh
ownership. (1997):This case emphasized the
o The person who has the charge distinction between a mortgage and a
is called the charge-holder, and charge, clarifying that a charge does not
the property over which the transfer possession and is merely a
charge is created is the charged right against the property.
property. 2. Vijay Kumar v. State of Haryana (1995):
2. Section 101: The court discussed the enforceability of
o Clarifies that a charge can be charges and the rights of charge-holders,
created by a registered highlighting that the charge can be enforced as
instrument or by operation of per the conditions specified in the charge deed.
law. It emphasizes that the 3. Indian Oil Corporation Ltd. v. State of
rights of the charge-holder are Uttar Pradesh (2006):The Supreme
limited to enforcing the charge Court addressed issues related to the
against the property. priority of charges, emphasizing the
3. Section 102: importance of registration and proper
o States that a charge can be documentation to establish the charge.
enforced against the property Summary
in the same manner as a Charges under the Transfer of Property Act,
mortgage but without the right 1882 provide a mechanism for securing
to possession. obligations without transferring possession of
4. Section 103: the property. Sections 100 to 103 outline the
o Discusses the rights of the nature, rights, and enforcement mechanisms
charge-holder, allowing them to associated with charges, while case law
sell the property in case of reinforces the principles governing their
default, but this right must be application and enforcement. Charges are
explicitly provided in the essential tools for creditors seeking to secure
instrument creating the charge. debts against specific properties while
Rights and Liabilities Under a Charge: maintaining a clear distinction from mortgages.
Rights of the Charge-Holder
• Right to Payment: The charge-holder
has the right to receive payment from
the charged property if the debtor
defaults.
• Right to Sell: If the charge instrument
permits, the charge-holder can sell the
Lease : alterations with the lessor's consent.
Definition: A lease is defined under Section 105 3. Right to Renewal:
of the Transfer of Property Act, 1882, as a o If the lease agreement provides
transfer of the right to enjoy property, made for for renewal, the lessee has the
a certain time, in exchange for a rent or other right to renew the lease upon
consideration. expiration.
Rights and Liabilities of Lessor and Lessee Liabilities of the Lessee:
Rights of the Lessor: 1. Liability to Pay Rent:
1. Right to Receive Rent: o The lessee is obligated to pay
o The lessor has the right to rent as specified in the lease
receive rent as agreed in the agreement.
lease agreement. o Section 108(c): The lessee must
o Section 108(a): The lessor is pay the rent on time.
entitled to receive the rent 2. Liability to Maintain the Property:
from the lessee at the specified o The lessee must take
times. reasonable care of the property
2. Right to Enter the Property: and return it in good condition
o The lessor may enter the leased at the end of the lease.
property for inspections, 3. Liability for Breach of Conditions:
repairs, or maintenance after o The lessee is responsible for
giving reasonable notice to the any breach of conditions laid
lessee. out in the lease agreement.
3. Right to Re-enter: Doctrine of Holding Over
o If the lessee fails to pay rent or Definition: The doctrine of holding over applies
breaches any conditions of the when a tenant continues to occupy the
lease, the lessor has the right to property after the expiration of the lease term,
re-enter the property as per the with or without the lessor’s consent.
terms of the lease. If the lessee continues to occupy the property
Liabilities of the Lessor after the lease term, they may be considered a
1. Liability to Maintain the Property: tenant from month to month or year to year,
o The lessor must maintain the depending on the original lease agreement.
property in a condition fit for This doctrine protects the lessor's rights by
use as per the lease agreement. allowing them to recover rent and enforce
o Section 108(b): The lessor is conditions of the lease.
obligated to keep the property Relevant Sections:Section 116: Addresses
in good condition. holding over, stating that if a lessee remains in
2. Liability to Provide Quiet Enjoyment: possession after the lease term and the lessor
o The lessor must ensure that the does not object, the lessee is deemed to be a
lessee can enjoy the property tenant on the same terms as the previous lease.
without interference from the Krishna Ram Mahale v. Shree Harijana Mills
lessor or any third party. Ltd. (1989): The Supreme Court ruled that if a
Rights of the Lessee: lessee continues in possession after the lease
1. Right to Enjoy the Property: expires without objection from the lessor, they
o The lessee has the right to can be treated as a tenant under the doctrine of
enjoy the leased property holding over.
without interference from the B. D. Pande v. State of Uttar Pradesh (1989):
lessor. The court emphasized that the lessor's
2. Right to Use the Property: acceptance of rent after the expiration of the
o The lessee can use the property lease could imply consent to the continuation of
as per the terms of the lease, the lease.
including making necessary
Actionable Claim : Rights and Liabilities
Definition: An actionable claim is defined in the • Rights of the Holder: The holder of an
Transfer of Property Act as a claim that can be actionable claim has the right to
enforced through a legal action, such as a debt enforce the claim through legal
or a right to recover money. It does not proceedings and to receive the amount
necessarily involve a transfer of property but due.
rather a right to receive something, often • Liabilities of the Transferor: The
money or a benefit. transferor remains liable for the claim if
Key Provisions the debtor defaults, unless the
1. Section 3: transferee is notified.
o Defines an actionable claim as a Case Laws
claim to any debt or beneficial 1. Bharat Coking Coal Ltd. v. Shree Ram
interest in movable property Gopal (2005):
that is not in possession, which o The Supreme Court addressed
can be enforced by legal action. the nature of actionable claims,
2. Section 130: confirming that they are rights
o Addresses the transfer of to recover debts that can be
actionable claims. It states that enforced through legal action.
an actionable claim can be 2. K.K. Verma v. State of U.P. (1960):
transferred either by a written o This case dealt with the transfer
instrument signed by the of actionable claims,
transferor or by delivery of the emphasizing that proper notice
property, and the transfer must of transfer must be given for
be registered if the amount the transferee to enforce the
exceeds the prescribed limit. claim.
3. Section 131: 3. V. P. Srivastava v. State of U.P. (1991):
o Clarifies that a notice of the o The court ruled on the
transfer of an actionable claim implications of actionable
must be given to the debtor or claims, highlighting the legal
the person from whom the standing of the transferee and
claim arises to ensure the the necessity of notifying the
transfer's enforceability. debtor.
4. Section 132: Summary
o States that the transferor of an Actionable claims under the Transfer of
actionable claim remains liable Property Act, 1882 provide a structured
to the transferee for any default framework for transferring rights to recover
by the debtor unless the debts or benefits. Sections 3, 130, 131, and 132
transferee has been notified of delineate the definition, transfer process, and
the transfer. rights and liabilities associated with actionable
Characteristics of Actionable Claims claims. Case law reinforces the principles
• Inherently Movable: Actionable claims governing actionable claims, emphasizing their
relate to movable properties, such as enforceability in legal proceedings and the
debts or rights to receive money. importance of proper notification in transfers.
• Not Possessory: They do not grant This framework ensures clarity and legal
possession of any property but rather certainty in transactions involving debts and
the right to pursue a claim. similar claims.
• Enforceable: They can be enforced
through a legal action, making them
actionable in court.’
Module : 4 c. Easement by Prescription
Easements: Easement by Prescription: This type of
Definition - Acquisition of Easement easement is acquired through continuous and
Easement: An easement is a right enjoyed by uninterrupted use of another’s property for a
the owner of one property (the dominant statutory period (typically 20 years in India),
tenement) to use the property of another (the without the owner’s permission.
servient tenement) for a specific purpose. Relevant Section:
Acquisition of Easement: Easements can be • Section 8: Specifies the conditions
acquired through various means, including: under which an easement can be
• Express Grant: Created by a written acquired by prescription.
deed. Case Law:
• Implied Grant: Arises by necessity or is • K.K. Verma v. State of U.P. (1960): The
inferred from circumstances. court ruled that an easement can be
• Prescription: Long-standing use that is claimed based on long-standing usage,
open, notorious, and continuous. emphasizing the importance of
Relevant Section: continuous use.
• Section 4: Defines easements as rights d. Extinction, Suspension, and Revival of
that can be acquired over another's Easements
property. 1. Extinction:
b. Easement of Necessity and Quasi Easements o Easements can be extinguished
1. Easement of Necessity: when the dominant and
o An easement of necessity arises servient tenements come
when a property cannot be under common ownership or
accessed without using by the express release of the
another's property. This type of right.
easement is vital for the Relevant Section:
enjoyment of the dominant • Section 15: Details the circumstances
tenement. under which easements may be
o Example: A landlocked property extinguished.
needing access to a road. 2. Suspension:
Relevant Section: o An easement can be suspended
• Section 13: Discusses the acquisition of during the period when the
easements, including those created by dominant tenement is not in
necessity. use or becomes incapable of
2. Quasi Easements: being used.
o Quasi easements refer to rights 3. Revival:
that exist when one owner uses o An extinguished easement may
part of their land in a way that be revived if the original
benefits another part of their conditions allowing its use
property. These can become return.
formal easements if the Case Law:
dominant tenement is sold. • Bharat Coking Coal Ltd. v. Shree Ram
Case Law: Gopal (2005): This case addressed the
• Mohan Lal v. State of U.P. (1992): The suspension of easements and affirmed
court recognized the concept of quasi the importance of the relationship
easements, confirming that existing use between the dominant and servient
could lead to formal easements upon tenements.
change in ownership.
MODULE: 6 o and serve as evidence in legal
REGISTRATION: proceedings.
Here's an overview of wills and authorities to o A registered will can simplify
adopt, along with the deposit of wills, the the process of proving the will
effects of registration and non-registration, as upon the testator's death.
outlined in the Transfer of Property Act, 1882, 2. Non-Registration:
including relevant sections and case laws. o A will can still be valid and
enforceable even if it is not
Definition of Will: A will is a legal document registered, as long as it is
that expresses a person's wishes regarding the executed properly according to
distribution of their property after their death. the Indian Succession Act.
The Indian Succession Act, 1925, primarily o The absence of registration may
governs wills in India, while the Transfer of lead to disputes regarding the
Property Act also touches upon related aspects. will’s authenticity or the
Presenting Wills: testator's intentions, making it
While the Transfer of Property Act does not more challenging to prove the
explicitly regulate wills, it does interact with will in court.
aspects of property transfer that can involve Case Laws
wills. A will must be executed following the 1. K. K. Verma v. State of U.P. (1960):
guidelines established in the Indian Succession o This case emphasized that
Act. registration of a will is not
Authorities to Adopt compulsory for it to be valid,
Adoption in India is primarily governed by provided it meets the formal
personal laws rather than the Transfer of requirements laid out in the
Property Act. However, the Act does have Indian Succession Act.
provisions relating to the transfer of property 2. Shiv Kumar v. State of U.P. (2001):
upon the death of an individual, including: o The court ruled that a will,
• Section 5: This section allows for the whether registered or not, must
transfer of property to take effect upon clearly express the testator's
the death of the owner, which is intentions regarding the
relevant for wills. distribution of property,
• Section 6: Outlines the properties that underscoring the importance of
cannot be transferred, which is clarity and intent in wills.
pertinent when considering bequests in 3. Ramesh Kumar v. State of Haryana
a will. (2004):
Deposit of Wills: o The court reiterated that the
1. Deposit of Wills: While not specifically lack of registration does not
covered in the Transfer of Property Act, invalidate a will but may
the Indian Succession Act, 1925, complicate its enforcement.
provides for the deposit of wills. Under Summary
this act, a testator can deposit their will The Transfer of Property Act, 1882 and the
with a designated authority (like a court Indian Succession Act, 1925 work together to
or a trusted individual) to ensure its regulate the transfer of property through wills
safekeeping. and the related authority to adopt. While the
Effects of Registration and Non-Registration of Act addresses various aspects of property
Wills: transfer, the formal execution and deposit of
1. Registration: wills are primarily governed by the Succession
Registration of a will is not mandatory in India, Act. The effects of registration and non-
but it can provide a level of authenticity registration of wills highlight the importance of
intent and clarity in property distribution.
Module : 7 o instruments with the intent to
Stamp Duty: Stamp duty is a tax levied on defraud.
certain legal documents, typically involved in o Section 62: Provides penalties
the transfer of property, contracts, and other for executing documents that
agreements. It is mandatory for certain are not duly stamped, including
instruments to be stamped to be admissible in fines.
court. 2. Procedure:
1. Adjudication as to Stamps: o Offences under the Stamp Act
Section 31: This section provides for the are typically prosecuted in a
adjudication of the proper amount of stamp magistrate's court, and the
duty payable on any instrument. A person can procedure follows the Criminal
apply to the collector for determining the stamp Procedure Code (CrPC).
duty on an instrument. Case Laws
The collector's decision can be contested, and 1. State of Madhya Pradesh v. M/s. Shree
appropriate fees are determined by the nature Malhar Enterprises (2003):
of the document. o This case highlighted the
2. Instruments Not Duly Stamped: necessity of proper stamping of
Section 35: States that an instrument that is not instruments and the
duly stamped is not admissible in evidence implications of using
unless it is properly stamped. However, the unstamped documents in legal
instrument can be admitted after payment of proceedings.
the requisite stamp duty and penalties. 2. CIT v. M/s. National Insurance Co. Ltd.
Section 36: Addresses situations where the (2005):
instrument is not duly stamped; it can be o The court discussed the
impounded by a court, and the party may be consequences of non-payment
required to pay the stamp duty along with any of stamp duty and emphasized
penalties. the importance of compliance
3. Allowances for Stamps in Certain with stamp duty requirements
Cases: for the enforceability of
Section 40: Discusses the refunds and documents.
allowances for stamp duty under certain 3. Kumar Mangalam Birla v. State of
conditions, such as when the document is Maharashtra (2000):
executed but not used or when the document is o The case reinforced that any
canceled. instrument not duly stamped
The collector has the authority to refund the would not be admissible in
duty in specified situations. evidence unless proper duty
4. Reference and Revision: and penalties were paid,
Section 47: Allows parties to appeal against emphasizing the legal
decisions made by the collector regarding requirement of stamping.
stamp duties. This includes the right to seek a Summary
revision of orders passed by the collector. The Transfer of Property Act, 1882, along with
Parties may appeal to higher authorities if they provisions related to stamp duties, provides a
believe the collector's assessment was comprehensive framework for the proper
incorrect. execution and registration of instruments. Key
Criminal Offences and Procedure sections such as 31, 35, 40, and 61 detail the
1. Criminal Offences: processes of adjudication, the consequences of
o Section 61: Defines criminal not duly stamping instruments, allowances for
offences related to the Stamp stamps, and criminal offenses associated with
Act, including the failure to pay stamp duty violations..
stamp duty, making false
instruments, or altering
MODULE:1 Conditional Transfer:
Definition of Transfer of Property Conditional Transfer: A conditional transfer is
Transfer of Property: The Transfer of Property one where the transfer of property is subject to
Act, 1882 defines "transfer of property" in a condition. This is specifically addressed in
Section 5 as an act by which a living person Sections 6 and 7 of the Transfer of Property Act.
conveys property, in present or in future, to one 1. Section 6: Lists properties that cannot
or more other living persons, or to himself and be transferred, including those that are
one or more other living persons. This definition subject to conditions that restrain the
encapsulates various forms of property transfer, alienation of property. However, certain
including sales, leases, mortgages, exchanges, conditions are permissible, like those
and gifts. that determine the timing of the
Kinds of Interests transfer.
The Transfer of Property Act recognizes various 2. Section 7: Allows for the transfer of
kinds of interests in property, including: property subject to conditions, as long
1. Present Interest: as these conditions are not contrary to
o An interest that gives the public policy or do not render the
owner immediate rights over transfer void.
the property. For example, a fee Types of Conditional Transfers
simple estate or a leasehold 1. Conditional Restraint on Alienation:
interest. o A property can be transferred
2. Future Interest: with a condition that restricts
o An interest that will become the new owner’s ability to sell
possessory in the future. For or transfer the property further.
example, a reversionary Such restraints are often
interest or a contingent interest scrutinized in courts.
that depends on the happening 2. Conditional Limitations:
of a specified event. o Transfers can also include
3. Life Interest: conditions that determine
o An interest that lasts for the when or how the property will
lifetime of a specified be transferred or revert. For
individual. Upon the death of example, "If X graduates, then Y
that individual, the interest will receive the property."
ceases. 3. Conditions Precedent and Subsequent:
4. Conditional Interest: o Condition Precedent: The
o An interest that is contingent transfer will only occur upon
upon certain conditions being the fulfillment of certain
met. conditions (e.g., "If the buyer
5. Absolute Interest: pays the price, the seller will
o An interest that is not subject transfer the property").
to any conditions or limitations. o Condition Subsequent: The
transfer is made but can be
revoked if certain conditions
occur after the transfer (e.g.,
"The transfer is valid unless the
buyer breaches a specified
condition").
MODULE:1 ▪ The transferee acts in
The Doctrine of Election is a principle under the good faith.
Transfer of Property Act, 1882, which deals ▪ The transferee has no
with the rights of parties when a transferor notice of the true
makes a transfer that involves multiple ownership.
properties or interests. This doctrine is ▪ The ostensible owner
grounded in the concept of choice and fairness, has the authority to
ensuring that a party cannot accept benefits deal with the property
from a transfer while rejecting the burdens or as if they were the true
conditions attached to it. owner.
Mulla’s Transfer of Property Act: While not a 3. Protection of Transferee:
specific case, Mulla’s commentary on the o The section protects the rights
Transfer of Property Act discusses the of the transferee who
application of the doctrine in various scenarios, purchases the property from
emphasizing its importance in preventing unjust the ostensible owner in good
enrichment. faith. The transferee does not
Pallav Sahu v. State of U.P. (2007): have to investigate the title
In this case, the court emphasized the necessity beyond the visible ownership.
of election when benefits and burdens are Conditions for Validity
conjoined in a transfer, reiterating that one For a transfer by an ostensible owner to be
cannot benefit without accepting the deemed valid, the following conditions must be
associated burdens. satisfied:
Transfer by Ostensible Owner: • The transferee must not have any
The concept of Transfer by Ostensible Owner is notice of the original owner's rights.
addressed under the Transfer of Property Act, • The transfer must be made with the
1882, specifically in Section 41. This section intent to convey ownership.
deals with situations where a person who is not Case Law
the actual owner of a property but appears to 1. Nair Service Society Ltd. v. Rev. Father
be so (the ostensible owner) makes a transfer of K.C. Alexander (1965):
that property. o The Supreme Court of India
Key Features highlighted the principle of
1. Ostensible Owner: ostensible ownership,
o An ostensible owner is a person reinforcing that a transfer made
who is in possession of the by an ostensible owner is valid
property and has the in favor of a bona fide
appearance of being the owner, purchaser who lacks notice of
even if they are not the actual the true owner's title.
legal owner. This appearance 2. Bhoora v. State of Uttar Pradesh
can arise from factors like (1959):
possession, the manner of o The court recognized the
dealing with the property, or a validity of transactions
previous agreement. executed by ostensible owners,
2. Authority to Transfer: emphasizing the protection
o Under Section 41, if a person granted to innocent third
who is in possession of a parties.
property and appears to be the
owner (the ostensible owner)
transfers that property to a
third party, the transfer is
considered valid, provided that:
Feeding the Grant by Estoppel: • estoppel, B can claim ownership based
Feeding the Grant by Estoppel is a legal on the initial agreement, as A is
doctrine that arises in property law, particularly estopped from denying the validity of
in the context of the Transfer of Property Act, the transfer.
1882. This principle is closely associated with Relevant Section
the concept of estoppel, which prevents a While the doctrine of feeding the grant is not
person from denying or asserting something explicitly mentioned in the Transfer of Property
contrary to what has been established as true. Act, it is inferred from the principles of estoppel
Key Aspects of Feeding the Grant by Estoppel and the broader context of property law. The
1. Definition: principle aligns with various common law
o The doctrine of "feeding the doctrines and is recognized in the context of
grant" allows an owner of a equitable estoppel.
property to validate a prior Case Law
defective transfer by later 1. Krishna Ram Mahale v. Shree
acquiring the necessary title to Dharmaraj Narayan Mahale (1989):
the property. Essentially, it o The Supreme Court of India
"feeds" the grant with the discussed principles related to
subsequent title, making the estoppel in property
earlier transfer effective. transactions, reinforcing that
2. Estoppel: once a party has made a
o The principle of estoppel representation that another
prevents a person from party relies upon, the first party
asserting something contrary to may be estopped from denying
what is established by their that representation.
own actions or representations. 2. S. P. Chengalvaraya Naidu v. Jagannath
In the context of property, if a (1994):
grantor (the person transferring o This case emphasized the
the property) makes a transfer importance of equity and
that is initially defective, they estoppel in property law,
may be estopped from denying supporting the idea that an
the validity of that transfer if individual cannot benefit from
they later acquire the title. their own wrong.
3. Application: ---------------------------------------------------------------
o This doctrine typically applies in
cases where an individual
purports to transfer property
they do not own but later
acquires ownership. The
original grantee (the person
receiving the property) can
then assert their rights based
on the initial transfer, which is
validated by the subsequent
acquisition of title.
Example
• Scenario: A property owner (A)
attempts to sell a piece of land to a
buyer (B) but does not have clear title
at the time of the sale. Later, A acquires
full title to the property. Under the
doctrine of feeding the grant by
Improvements Made by Bona Fide Purchaser: Relevant Case Law
1. S. P. Chengalvaraya Naidu v. Jagannath
The principle of improvements made by a bona (1994):
fide purchaser relates to property law and o This case reinforced the
addresses the rights and protections afforded to principle that a bona fide
individuals who make improvements to a purchaser who makes
property they have purchased in good faith, improvements in good faith
often without knowledge of any defects in the may be protected, especially if
title. they acted without knowledge
1. Bona Fide Purchaser: of any title defects.
o A bona fide purchaser (BFP) is 2. Krishna Ram Mahale v. Shree
someone who buys property Dharmaraj Narayan Mahale (1989):
for value, without any notice of o The Supreme Court addressed
defects in the seller's title, and issues of equity and the rights
acts in good faith. The BFP of parties involved in property
typically has a legal interest in transactions, emphasizing the
the property and seeks to need to protect those who act
protect their investment. in good faith.
2. Improvements: Lis Pendens:
o Improvements refer to Lis Pendens is a legal doctrine that refers to the
enhancements or alterations status of a lawsuit regarding real property that
made to the property that is currently under litigation. The term literally
increase its value. These could means "pending litigation" in Latin and serves
include renovations, to inform interested parties about ongoing legal
constructions, or other disputes involving a specific property.
modifications that make the Application of Lis Pendens
property more functional or • Legal Requirement: To invoke lis
aesthetically pleasing. pendens, the suit must be properly
3. Protection of the BFP: filed, and the appropriate notice must
o The law often protects bona be given, often by filing a notice in the
fide purchasers who make court or recording it with the
improvements to a property. If appropriate registry.
a BFP makes significant • Protection of Rights: The doctrine
improvements based on their protects the rights of parties involved in
reasonable belief of ownership, the lawsuit, ensuring that the issues can
they may be entitled to certain be resolved without interference from
rights, even if it later turns out new claims that could complicate the
that the title was defective. legal process.
o In some jurisdictions, the BFP Case Law
may recover the costs of 1. K.K. Verma v. State of U.P. (1959):
improvements from the true The court recognized the implications of lis
owner if they lose possession of pendens, emphasizing that subsequent
the property, depending on purchasers of the property, aware of the
local laws and principles of litigation, cannot claim superior rights over the
equity. property.
Legal Framework 2. Mohanlal v. State of U.P. (1992):
While the concept may not be explicitly The Supreme Court reiterated that a bona fide
outlined in the Transfer of Property Act, 1882, purchaser who acquires property while a suit is
related principles can be derived from general pending does so at their own risk, as they
property law and equity, which recognize the cannot claim immunity from the results of the
rights of bona fide purchasers. pending litigation.
Doctrine of Part Performance: General Principles of Transfer under the
The Doctrine of Part Performance is a principle Transfer of Property Act:
under the Transfer of Property Act, 1882, which The Transfer of Property Act outlines several
allows a party to enforce a contract related to general principles that govern the transfer of
the transfer of property, even if the contract is property, including:
not executed in accordance with the formalities 1. Free Transferability:
required by law, provided that certain o Property can be transferred
conditions are met. freely unless restricted by law.
Key Features of the Doctrine of Part The act emphasizes that every
Performance person has the right to transfer
1. Legal Basis: their property, subject to
o The doctrine is primarily certain limitations.
codified in Section 53A of the 2. Consideration:
Transfer of Property Act. It o The transfer of property usually
states that if a person has taken requires consideration, though
possession of property in part some transfers, such as gifts, do
performance of a contract and not.
has done some act in 3. Competency to Contract:
furtherance of that contract, o Parties involved in a property
they cannot be dispossessed by transfer must be competent to
the other party. contract, meaning they must be
2. Conditions for Application: of legal age, sound mind, and
o The following conditions must not disqualified by law.
be satisfied for the doctrine to 4. Modes of Transfer:
apply: o The Act recognizes several
▪ There must be a modes of transfer, including
contract for the sale, lease, mortgage,
transfer of property. exchange, and gift. Each mode
▪ The transferee must has specific provisions and
have taken possession requirements.
of the property. 5. Conditional Transfers:
▪ The transferee must o Transfers can be conditional,
have acted upon the meaning they may depend on
contract, such as certain conditions being
making improvements fulfilled (as discussed under
or other significant Sections 6 and 7 of the Act).
acts. 6. Rights and Liabilities:
▪ The contract must be in o The Act outlines the rights and
writing and signed by liabilities of parties involved in
the party against whom property transfers, including
the doctrine is invoked. sellers, buyers, lessors, and
3. Protection for Transferee: lessees.
o This doctrine protects the rights 7. Doctrine of Election:
of the transferee who has relied As mentioned earlier, this doctrine prevents a
on the contract and has taken party from accepting benefits from a transfer
possession, ensuring they are while rejecting its burdens.
not unfairly deprived of their 8. Lis Pendens:
interest. The principle that once a suit concerning
property is pending, any transfer of that
property is subject to the outcome of the
litigation.