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CONTENTS

I. INDEX i-iiiII SHORT NOTES INDEX iv-vIII ESSAY QUESTIONS AND ANSWERS 1-94IV SHORT NOTES 95-112V DICTIONARY 113-116VI IMPORTANT QUESTIONS 117VII REFERENCE BOOKS 118

1 Introduction 12 Immovable property 33 Attestation 54 Actionable claim 65 Notice 76 Definition of Transfer of property 97 What property cannot be transferred 108 Oral transfers 119 Condition restraining alienation/Rule against inalienability 1210 Condition restraining enjoyment/Repugnant conditions 1411 Transfer for the benefit of unborn person 1612 Rule against perpetuity 1813 Direction for accumulation/Rule against accumulatin 2014 Vented interest and contingent interest 2115 Condition precedent and condition subsequent 2316 Rule of acceleration 2517 Doctrine of election 2518 Apportionment 2819 Covenants 29

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20 Ostensible owner/Doctrine of holding out 3121 Doctrine of feeding the grant by estoppel 3322 Priority of rights 3523 Improvements made by bona fide holders under defective titles 3824 Doctrine of lis pendence 4025 Fraudulent transfers 4226 Doctrine of part performance 4427 Specific Transfers 4628 Sale 4629 Definition and essentials of sale 4630 Rights and liabilities of buyer and seller 4931 Unpaid vendor’s lien 5132 Caveat emptor 5333 Mortgage 5434 Definiton and essentials of mortgage-its various forms 5435 Rights and liabilities of mortgagor 5736 Rights and liabilities of mortgagee 5837 Doctrone of redemption 5939 Clog on Redemption 6340 Partial Redemption 6441 Doctrine of consolidation 6542 Right to Foreclosure or Sale 6743 Substituted Security 6844 Redeem up-foreclose down 6945 Marshalling and contribution/Marshalling securities 7146 Contribution 7247 Subrogation/Legal subrogation/Conventional subrogation 7348 Lease 7549 Definition and essentials of lease 7550 Rights and liabilities of lessor and lessee 7651 Distinction between lease and licence. 7852 Determination of lease/forfeiture of lease 7853 Exchange of properties 8054 Gift 81

Law of Easement

59 The Indian Easement Act,1882 8660 Definition of easement/Kinds of easements 86&87

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Definition ofTransfer of Property

Section 5

DEFINITION OF TRANSFER: Transfer is a process or anact by which something is made over to another. Transferor must

convey a right to the transferee. Transfer is also known as alienation.The transfer need not be absolute. There may be a transfer of limitedinterest. e.g. sale, gift and exchange are the examples of absolute trans-fers, but lease and mortgage are the examples of limited transfers. Thefundamental rule of transfer is that a transfer must be made in the wayprescribe by the Act. The transfer governed by the Act must be reduced inwriting and if necessary it must be registered under the provisions of theIndian Registration Act, 1908 and stamp duty must be paid in accordancewith the provisions of the Indian Stamp Act, 1899. The transaction, whichdoes not come under the purview of the Act, may be done orally and regis-tration is also not necessary. Transfer of property is defined under Section5 of the Act.Transfer inter vivos: This Act deals with transfers inter vivos. It means itdeals with the transfers between living persons only. According to Section 5living persons includes a company or association or body of individuals,whether incorporated or not.In Raghubar Singh v. Jai Indra Bahadur Singh 1919 46 IA 228 it washeld that a Court is not a living person within the meaning of Section 5 of theAct. Hence the transfers made by Court are not governed by this Act. InAshrafi Devi v. Prem Chand AIR 1971 All 457 the Court held though anidol is not a living person, it is a juristic person and capable of holdingproperty.Analysis of Section 5:

1. There must be transfer between living persons only2. There may be a transfer of property by a person to himself

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3. The transfer includes sale, mortgage, gift, lease and exchange4. There may be transfer of absolute or limited interest5. The Transfer may be made at present or future6. The property must be in existence7. The term living person includes non-natural persons too8. The Act permits joint transfer and joint ownership9. The transferor must convey a right to the transferee

What properties may be transferred? The transferor need not ownproperty so transferred. According to Section 5 of the Act, the followingproperties may be transferred.

1. Tangible material things. e.g. land, house, car etc2. Rights over material things.e.g. right to enjoy, right to sell etc3. Rights which over non-material things. e.g. copy right etc.

What are not transfers? Conveying of the property involves the creationof new title or interest in the transferee. If a new title or interest is notconveyed there shall be no transfer. Therefore, according to Sec 5 of theAct, the following instances are not transfers.

1. A surrender is not a transfer2. A charge on the property3. A relinquishment in favour of a coparcener4. A family arrangement or in a settlement of doubtful claims5. A partition in a joint Hindu family6. An abandonment of a claim to property

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Absolute restraint 97Actionable Claim 97Actual or Express notice 97Affirmative/positive covenants 97Anomalous mortgage 97Apportionment 97Attachments 98Attestation 98Binami transactions 98Burden of proof 98Caveat emptor 98Clog on Redemption 99Condition precedent 99Condition restraining alienation 99Condition restraining enjoyment 99Condition subsequent 99Consent 100Consideration 100Consolidation 100Constructive or implied notice 100Contract of sale 100Contribution.Doct. of 101Conventional subrogation 101Covenant 101Defects in the title 101Death bed gift 101Doctrine of acquiescence 101Doctrine of Cypress 102Doctrine of Election 102Doctrine of Lis Pendence 102Doctrine of Part Performance 102Donatio mortis causa 103Easement 103English mortgage 103Estoppel 103Fixtures 103Fraudulent transfers 103

Immovable property 103Lease 104Legal subrogation 104Licence 104Marshalling 105Mortgage 105Mortgage by conditional sale 105Notice 105Ostensible owner 106Partial foreclosure or sale 106Partial Redemption 106Partial restraint 106Perpetuity period 107Positive,Negative Easements 107Prescription 107Priority of Rights 107Profits-a-pendre 108Redeem Up, foreclose down 108Right of Redemption 108Right to Foreclosure or Sale 109Rule against accumulation 109Rule against Double Possibility 109Rule against perpetuity 109Rule of apportionment by time 110Sale 110Simple mortgage 110Spes successionis 110Subrogation 110Substituted Security 111Transfer 111Transfer inter vivos 111Transfer of Property Act 111Unpaid Vendor’s Lien 112Usufructuary mortgage 112Vested and contingent interest 112

Shortnotes Index

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Shortnotes

Absolute restraint :If a condition takesaway the right totransfer substantially, it is called abso-

lute restraint. A condition totally re-straining alienation is void. e.g. Atransferred a house to B with a condi-tion that if B sold it, he must sell it toC only, and nobody else. Here thereis a chance to sell the house only to C,but not to anybody in the world. Hencethis is absolute restraint.

Actionable Claim : a beneficial claim,which can be recovered only by anaction in a Civil Court, is called ac-tionable claim. In English law it isknown as chose in action or thing inaction. According to Section 3 of theTransfer of Property Act, 1882 thefollowing are actionable claims: Anunsecured debt any beneficial interestin movables not in possession of theclaimant, a claim which the CivilCourt recognise as affording groundsfor relief

Actual or Express notice : Bringingthe knowledge of a fact directly andpersonally to the party is called actualnotice. It is a kind of notice wherebya person acquires actual knowledge ofthe fact.

Affirmative or positive covenants:Covenants, which imposes an obliga-tion for the performance of an act is

called affirmative, or positive cov-enant. They are collateral. They bindonly the parties to the covenant andnot third parties. They are not annexedto the land. They never run with theland either in law or equity. They runwith persons. The assignees of theland are not liable to comply the termsof covenant.

Anomalous mortgage: Section 58(g):A mortgage which is not a simplemortgage, mortgage by conditionalsale, an usufructuary mortgage, anEnglish mortgage or a mortgage bydeposit of title-deeds, within the mean-ing of this section is called anomalousmortgage. It may be combination oftwo or more forms of specific cat-egories of mortgages. It does not fallunder any of the five classes men-tioned under Section 58. e.g. a simplemortgage usufructuary. This kind ofanomalous mortgage is a combinationof a simple mortgage and a usufruc-tuary mortgage.

Apportionment: means sharing ordivision of a common fund betweentwo or more claimants. When prop-erty is transferred the transferee be-comes entitled to get all its incidentalbenefits, produce or income. Someproperties give periodical income suchas rents, annuities, dividends and otherperiodical payments. In such case thequestion of apportionment of

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DictionaryAbandonment:rejection, neglectAbsolute estate: definite propertyAbsolute interest: perfect advantageAbsolute restraint:perfect limitationAbsolute right: perfect claimAbsolute: perfect, finalAbsolutely: unconditionallyAbstains: refrainsAcceleration: increasing speedAccruing: improvingAccumulate: collect in one placeAccumulation: additional increaseAcknowledgement: recognitionActionable claim: beneficial rightAffirmative: positiveAlienate: transferAlienation: transferringAllowance: paymentAmend: alter, modifyAnnexation: unitingAnnexed: take possession ofAntagonistic: aggressive, hostileApparent: clear, obviousApportionment: distributionApprobate: approve, sanctionAssign: allocate, appointAssignees: allocateesAttachment: accessory, additionAttestation: verificationBare chance: marginal possibilityBasis: foundation, sourceBeneficial interest: useful benefitBequest: give, giftBinami transactions: fake dealsBinami transfers: conveyancesCaveat emptor: let buyer bewareCeases: ends, stops

Certifying: authorising officiallyClaimants: applicantsClog: blockCode: set of rules or lawComplied with: followed perfectlyComply: follow, abide byComprehensive: including allConclusive: decisiveConferment: an act of grantingConflict: clash, fightConforming: be in line withConsideration:something in returnConsidered: regardedContemplate: look at  thoughtfullyContingency: a possible eventContingent: uncertain to occurContrary to law: against lawContravene: go against rulesConvey: pass onConveyance: transferConveyed: transferredCovenant: agreementCoverture: married womanCreditor: money lenderDebt: loan, financial liabilityDebtor: borrowerDecree: legally binding commandDevised: give property by willDisposition: getting rid ofDistinction: differencesDonor: person who makes giftEjected: expel from a placeEncumbrances: burdensEngagement: involvementEntitled: give the right toEquitable principles: just rulesEquity of redemption: act of

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Reference Books

Author Title, Edition, Publisher and Place

Jain.J.D Easement Act3rd Edition Allahabad Agency

Maheswara Swamy .N Law Relating to Transfer of Property1st Edition 2008 Asia Law House,Hyderabad.

Mulla Transfer of Property Act1999 Universal, Delhi

Narayana Justice P.S Law of Easements and Licences5th Edition 2004Asia Law House Hyderabad

Sarathy.V.P Transfer of Property1995 Eastern,Lucknow

Shukla S.N Tranfer of Property Act4th Edition Allahabad Agency

Singh.A Text Book on The Transfer ofProperty Act5th Edition Central Law Agency

Sinha.R.K The Transfer of Property ActNinth Edition, 2006Central Law Agency, Allahabad

Subbarao Transfer of Property Act1994 Madras .

Tewari. H.N Tranfer of Property Act2nd Edition Allahabad Agency