Unit-I

Syllabus: Unit – I Concept of Property and General Principles Relating to Transfer of Property:
• Concept of property: distinction between moveable and immoveable property.
• Definition Clause: Immovable property, Actionable claim, Definition to transfer of property
(Sec.5).
• Transfer and non-transfer property (Sec.-10-12).
• Transfer to an unborn person and rule against perpetuity (Sec. 13,14).
• Vested and Contingent interest(Sec.19 & 21). Rule of Election (Sec.35).

Q1- What are the 5 essential ingredients of a "Transfer of Property”? “An absolute restraint on
alienation is void but partial restraint is not.” Comment. (2017 ,2019,2021,2023)

Ans- The Transfer of Property Act, 1882, outlines the legal framework for transferring property in India. To
constitute a valid "Transfer of Property," the following five essential ingredients are necessary:

1. Transferor

• There must be a legally competent person transferring the property.

• The transferor must have the authority to transfer the property, which typically means ownership or
the legal capacity to convey it.
• The person must be of sound mind, not a minor, and not disqualified by law.
2. Transferee
• There must be a definite person or legal entity to whom the property is transferred.
• The transferee must also be competent to accept the transfer, meaning they must not be a minor or
otherwise legally incapacitated unless specific conditions apply.
3. Transferable Property
• The property being transferred must be of a nature that can be legally transferred.
• Certain types of properties, like those prohibited by law (e.g., public office, personal rights), cannot be
transferred.
4. Consideration
• The transfer must involve lawful consideration, which may be monetary or otherwise. Some transfers,
like gifts, are exceptions to this rule as they do not require consideration.
5. Mode of Transfer
• The transfer must follow the prescribed legal method, such as writing, registration, or delivery of
possession, depending on the nature of the property and the transaction.
• The intention of the transferor must be clear, and the transfer must be made in accordance with the
conditions set out in the Act.
Each of these ingredients ensures that the transfer is valid and legally enforceable.
Essential ingredients of 'Transfer of property-(SECTION 5) - There are following essential ingredients of
a "Transfer of Property"
• Transfer of property must be made by a 'living person'.
• Such living person must convey the property.
• Transfer of property may be effective in present or in future.
• Property (whether movable or immovable) must be existent on the date of the transfer.
• The property may be transferred to
• one or more other persons; or
• himself, or himself and one or more other persons.
A mere right of re-entry- A mere right of re-entry for breach of a condition subsequent cannot be transferred
to anyone except the owner of the property affected thereby
Condition restraining alienation [Section 10] -Section 10 provides that where property is transferred subject
to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting
with or disposing of his interest in the property, the condition or limitation is void.
Exceptions: Section 10 itself provides two exceptions:
This section is not applicable in the case of a lease where the condition is for the benefit of the lessor or those
claiming under him
Where the property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or
Buddhist), so that she shall not have power during her marriage
Section 10 declares a condition to be void when it absolutely restrains alienation.
Restraint on alienation is called absolute when it totally takes away or curtails the right of disposal.
Partial Restraint-Where the restraint does not take away the power or alienation of the transferee
substantially but only limits it to some extent, the restraint is partial. A partial restraint is valid and enforceable.
For example, 'A' makes a gift of his house to 'B' subject to the condition that 'B' shall not sell it. The condition
being absolute restraint on B's right of disposal, is void and B is not bound by it. If he sells the property, the
sale is valid. 'A' sells his house to 'with a condition that 'B' cannot transfer this house to anyone except 'C. The
condition is void because 'C' may be a person who may never purchase the property.
Where the condition restricts the transferee from transferring the property to strangers, i.e. outside the family
of the transferor, the condition is merely a partial restraint which is valid and enforceable, to transfer or charge
the same or her beneficial interest.

[Link] the Rule Against Perpetuity and discuss its exceptions.(2020,2022,2023)

Ans. Rules Against perpetuity of T.P.A. (Sec. 14)
The Term Perpetuity for a beginner means continuous or unending transaction. The continuous unending
process is known as perpetual Transfer. The term perpetuity in a very refined sense that perpetual transfer are
generation after generation or Peedhi dar Peedhi, or Pusht dar Pusht or Nasal bad Nasal.

“A transfers his house to B for life and then to B’s children generation after generation .This is called
Perpetuity. Primary Sense of the Perpetuity is disposition which means the property in alienable for an
indefinite period. Perpetuity may arise by taking away from the owner of property, power of alienation
and by creation of future remote interest.
The object of perpetuity wants to keep the name and fame of their families and want to their successor from
destroying and wasting [Link] always creates the perpetuity against the public policy and therefore rule
against perpetuity embodied under Section [Link] against perpetuity will apply to all disposition of property
whether movable or immoveable.
Section 14—Notransfer of property can operate to create an interest which is to take effect after the life time
of one or more person living at the date of such transfer and minority of some person who shall be existence
at the expiration of that period and to whom if he attain full age the interest created is to belong. Any number
of life interest is created in favour of persons’s provided they are living on the date of transfer.

Example—Property can be transferred to A for life then to B for life then to C for life. C provided A, B and
C are living on the date of the transfer) and there is no bar against this but if the ultimate beneficiary is a person
not in existence at the date of transfer. Whole of the residue ( absolute ) must be transferred for the
benefit of unborn person. But such unborn person will get the property or interest only which he is born before
the termination of the rast prior estate. As per the example property is transferred to A for life and then to B
for life and then to C for life and therefore to unborn son of C. Here unborn son of C must be
born before the death of C. When he is born he will get a vested interest C before his death then the transfer
would fail.
If the transfer or intends that the property should not vest in an infant then the property would be in trust for
infants will he attain the age of 18 years.
Example—X transfers property to A for life and then to B for life and then to C for life and thereafter to son
of C in trust till he attain the age of 18 years. In such a case C’s son will not get the vested interest he will get
contingent interest which he attains the age of 18 years.
The result of Rule against perpetuity is that the minority is the ultimate beneficiary is the latest period beyond
which no estate can be made to vest.
The exception to the rule against perpetuity areas follows:-
• It is the applicable to a case where a property is transferred for the benefit of the public.
• A lease with a covenant for renewal does not offend the rule against perpetuity.
• It does not apply the vested interest.
• The exception tothe Rule against perpetuity also include mortgager’s right of redemption.
• The rule against perpetuity does not apply to Personal Agreement.
• Transfer of a class.
• Ulterior transfer.
• Payment of debt.
• Provision for portion of children.
• Preservation and maintenance of property.

Q.3. Explain the ‘Doctrine of Election’? What are the conditions in which a person is put to
election?(,2019,2021,2023)
Answer 2: Doctrine of Election: Election means choosing between two inconsistent or alternative rights
.Where under an instruments two right are conferred on a person in such a manner that one right is in lieu of
another (inconsistent or alternative), Then he is bound to choose only one of them. He cannot take under and
against the same instrument.
Section35of T.P.A. incorporate the doctrine of election and made following rules with regard to it:-
• A person profess to transfer a property,
• The person professing (transferor)is not the owner of that property.
• Transfer or confers certain benefit upon the owner of the property.
• Such benefit is in lieu of the professed transfer.
• Transfer of property and conferring of benefit form part of same instrument. In such a situation owner
of the property is bound to elect:
• Either to take the benefit and transfer his property ,or,
• To reject the benefit and retain the property.
Note I: Knowledge of the fact that transferor has no authority to transfer the property is immaterial for the
applicability of the doctrine (Para 2, Sec. 35).
NoteII: It is necessary for the applicability of the doctrine that benefit is conferred directly upon the owner
and not indirectly.
NoteIII: The duty to elect arises only when the person acts in one and the same capacity.

Thus where a person has to act in two different capacities eg. One as individual (owner) and the other
vicariously eg. as guardian or trustee, he may accept the benefit in one capacity and reject the instrument in
another capacity.
Mode of Election:
Owner can exercise his duty of election either expressly or impliedly .When election is express ,it is final and
conclusive. In case of implied election, the intention of owner is inferred from his acts or conduct.
Condition to be satisfied when owner elect impliedly in favour of transaction:
• Owner of the property,
• Being aware of his duty to elect, and
• Having full knowledge of the circumstance.
• Accept the benefits.
Presumption of acceptance of benefit:
In the following circumstances ,court presumes that the owner has knowingly accepted the benefit:
Owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transaction, or
Owner has done some act which renders it impossible to place the parties in the same condition as before.
For example: he exhausts or consumes the benefit.
Requisition to elect: After the expiry of one year from the date of transfer, if the owner does not elect, the
transferee requires him to make such election. And if he does not elect wthin a reasonable time, he is deemed
to have elected in favor of the transaction.
Suspension of election: Where at the time of election, the elector is legally disabled, the election is postponed
such disability cases or election is made by some competent authority, eg. Guardian .
Election against transfer: Where the owner elects against the transaction, he forfeits his claim to benefit
conferred under it. The benefit so conferred reverts back to the transferor.
Exception: Owner can claim any other benefit which is conferred under the instrument but independently of
transfer.
Rights of a disappointed transferee:
Where the transfer is gratuitous i.e., without consideration (like gift), and the transferor dies or become
incapable of making fresh transfer.
Where transfer is with [Link] disappointed transferee is entitled to get reasonable compensation
from the transferor or his representative.
Note: A disappointed transferee is one who cannot get the property as the owner of the property decides
against the transaction.

Q.4- Explain the Vested interest and contingent Interest with reference to conditional transfer.
Ans:Vested and Contingent interest:
In a transfer of property, the transferor can provide that title or interest created in favour of transferee could
took place immediately or on the happening of an uncertain future event. In the former case interest created
in favour of transferee is vested, while in latter contingent.
Vested interest(Sec.19):
Sec. 19 enumerates the circumstances when in a transfer of property, the interest created in favour of transferee
is vested:
• No time has been specified when it shall take effect ,or
• When it is specified that it shall take effect immediately ,or
• It is to take effect upon the happening of an event which must happen. For example: any future date
or year, any particular age of the transferee, death of any person etc.
Explanation appended to Sec.19:
• State mere fact that the enjoyment of interest transferred has been postponed does not affect the vesting
of character of the interest. In the following situations, nevertheless, the interest remains the vested
interest :-
• Postponement of enjoyment of property: For example: 'A' transfer his properties to 'B', to be given to
'B' on attaining the age of majority.
• Where a prior interest is created in the same transfer. For example:- 'A' transfer his properties to B for
life and than to 'C'.
• Direction in a transfer for accumulation of income of the property for a specified period.
Conditional limitation: A condition specifying that happening of a particular even the interest vested in a
person shall pass on to another person is called conditional limitation (Sec. 28 T.P.A.) A conditional limitation
does not prevent the resting of the interest.
Nature:
• In a vested interest the title of transferee is complete as soon as property is transferred , and the
transferee gets a personal fixed right in the property.
• Vested interest is transferable and heritable. It is transferable and heritable even if transferee has no
possession on right on enjoyment.
Illustration:
'A' transfer his property to 'B' and 'C' in equal share ,to be given to the mon their attaining the age of i.e. 18
years, and if 'B' and 'C' dues under that age, the property shall go to 'D'.
Interest of B&C is vested , even though restricted by conditional limitation.
Interest of Discontingent.
Sec.20: An interest created in favour of an unborn becomes vested as soon as that person born alive, even he
is not given immediately possession of property.
Contingent interest (Sec.21):-
• Where an interest created in favor of a person is to take effect upon:-
• The happening of an specified uncertain event ,or
• Non happening of specified uncertain event, Such interest is contingent.
Illustration:
• 'A 'makes gift of his property to 'B 'provided 'A' survives the age of 20years.
• 'A' make gift of his property to 'B' provided 'X' does not survive the ageof20years.
Note: Contingency may be of two kind:-
• That depend upon the will of parties and
• That depend upon natural events.
Exception: Where a transferee is to get an interest at a particular age, but the transfer directs that:
Transferee is to get absolutely the income arising from that interest before he attains that age, or
Income or part thereof shall be applied to his benefit. Such interest is vested.
Nature of contingent interest:
• Transferee gets only future possible interest in the property, which does not give any title.
• Contingent interest is non-heritable.
• It is transferable,but the transferee gets only an imperfect title
 Unit–II
Syllabus-General Principles Governing Transfer of Immoveable Property:
• Transfer by estensible owner, Rule of feeding the grant by estoppels.
• Rules of Lis pendent Fraudulent Transfer.
• Rule of part performance.

Q. 1. Define ‘Fraudulent Transfer’? What are the rights available to the transferee and transferee under
T.P.A. to check the fraudulent transfer?

Ans .Sec.53 Fraudulent Transfer:-

Meaning:- Fraudulent transfers are those transfers which are made with a fraudulent intention of defecting
the interest of creditor or any subsequent transferee. Such transfers are violable by the person who was so
defrauded.
Section 53 of the Transfer of Property Act, 1882 - "Fraudulent Transfer"
Section 53 of the Transfer of Property Act specifically deals with fraudulent transfer of property and states:
Section 53: "Transfer of property made with intent to defraud creditors"

A transfer of property made with the intent to defraud creditors is deemed to be voidable. According to this
section:
Fraudulent Transfer: If a person transfers property in a way that defrauds their creditors or to avoid payment
of existing debts, the transfer may be considered void.
Voidability: The transfer is not automatically void but may be challenged and set aside by the creditor. It is
only considered voidable upon the court's decision after proving that the transfer was made with fraudulent
intent.
Protection to Creditors: Creditors can challenge a fraudulent transfer under Section 53 and seek to recover the
transferred property or its value.
Key Points:
• If the debtor transfers property to a third party to avoid creditors, the transaction is fraudulent.
• Courts can annul or reverse such transfers if proven that the primary intent was to deceive creditors or
hinder their claims.
• The creditor has the right to file a suit to invalidate such transfers.
• The Burden of Proof lies on the party alleging the fraudulent transfer to demonstrate the intention of
the debtor.
Example:
Suppose a person, in financial trouble, transfers his house to a relative for a nominal price or even for free just
before creditors are about to claim the property. If the creditors can prove that the intention behind the transfer
was to avoid paying debts, the court can invalidate the transaction, and the property can be returned to satisfy
the creditor's claims.
Principle:- The Sec. 53 of T.P.A. is exception to the general principle of privity of contract. According to the
principle of privity of contact only a party to the contract, who has been defrauded can avoid the contract. And
a stranger to contract has no locus standi to avoid the terms of the contract even if contract was entered with
D intention to defraud the stranger.
Essential ingredients of Sec.53, Para-1:-
1-There shall be transfer of immovable Property:-The Transfer shall be Valid Transfer within the meaning
of Sec.5 of T.P.A. Hence relinquishment, surrender, partition, family settlement and dissolution of
partnership are not regarded as transfer of property.
Through the provisions of Sec. 53 are applicable to immovable property, but the privy council in Abdul hye
V Mir Mohammad(1883) case applied this section to movable property on the ground of equity, justice and
good
conscience. In Chidambar V Srinivasa (1914),the Madras High court applied this section to the assignment
of a decree.
Such transfer is made with the intention to defeat and delay the audit or soft he transfer or
:-It is noted that to attract the provisions of the Section, The transfer is made with the sole object of defeating
or delaying the interest of creditors, rather than to give the property honestly to the transferee. The following
circumstances gave the strong presumption that the transfer was fraudulent :-
• The Transfer was made secretly and in haste,
• The Transfer was made soon after the decree was passed against the judgement debtor.
• The transfer or who was indebted has gifted all the properties before attachment.
• Theconsiderationwasverysmallamountincomparisonofthevalueoftheproperty transferred.
• There is evidence that there is no actual payment of consideration as shown in sale-deed.

Note I The privy council in Masahur Sahu V Hakim Lal (1915) P.C. case held that transfer of property by
a debt or to one creditor in preference to other is not a fraudulent transfer with the intent to defeat or delay the
interest of another auditors.
Note II Creditor means any person who is entitle to get a certain sum of money for the other. It includes person
who have already obtained a decree in their favour from the court as well as those who have a claims to be
established by court. Under Muslim law Muslim wife is a creditor whose dower has not been paid. Similarly
a deserted Hindu wife in her claim for maintenance is a creditor.

Transferee has not received the property in good faith and for consideration:-Where the transferee has
purchased the property from the debtor in a good faith the creditor can’t avoid the sale under section 53(I).
When all the above conditions are proved to be existing, the transfer is voidable by the auditors. Sec. 53 does
not make a fraudulent transfer void automatically. It remains a perfectly valid transfer until creditors exercise
their right to avoid the transfer. Since the right to avoid the Transfer is optional a creditor may or may not
exercise his right under the section.
Note-A suit instituted by a auditor under this section must be instituted on behalf of or for the benefit of all
the creditors. The purpose of this rule is to protect the debtor from multiplicity of suits by other creditors.

Exception to the Rule under Sec. 53(1) - The rule that a fraudulent transfer can be avoided by creditors is
not applicable to –
A Transferee in good faith and for consideration, and
Any law relating to insolvency for the time being in force.

Sec.53 (2)-Gratuitous Transfer to defraud subsequent transferee-Sec.48 laid the general rule that first
transferee has preference over the second. But under sec. 53(2), if it is proved that first transfer is fraudulent,
the subsequent transfer shall prevail and first transfer would be voidable at the option of subsequent transferee.
Thus for the application of Sec. 53(2) , following conditions are necessary-
• These shall be transfer of immovable property.
• Transfer shall be gratuitous ,and
• Transfer shall be made with the intention to defraud a subsequent transferee, thus
• Such Transfer is voidable at the option of subsequent transferee.
Note- Mere fact that the first transfer was gratuitous and the second transfer is with consideration, does not
raise the presumption of fraud is respect of the prior transfer.
Conclusion
Fraudulent transfers under the Transfer of Property Act, 1882, are a critical legal concept designed to protect
creditors and ensure fairness in property transactions. Section 53 specifically addresses the issue of fraudulent
transfers, providing mechanisms for creditors to challenge and annul property transfers made with fraudulent
intent. While fraudulent transfers are not automatically void, they can be set aside by the courts if it is proven
that the transfer was made with the primary intent to defraud creditors. Additionally, bona fide purchasers are
protected to ensure that the legal property market remains unaffected by such fraudulent actions.

Q.2:Discuss the doctrine of “Lis Pendens” and give its basis. Does the doctrine apply to an execution
proceedings? Describe.
Ans 2: Sec.52- Transfer of Property pending suit relating there to:-
Doctrine of lis Pendens-
Meaning:- ‘Lis’ means litigation, and ‘Pendens’ means pending. Thus lis pardons means pending litigation –
The doctrine is expressed in maxim pendent lite nihil innovature means during pendency of litigation nothing
new should be introduced.
The doctrine is incorporated in Sec. 52, which provide that during pendency of any suit regarding title of
property, any new interest in respect of property should not be created.
This is an old doctrine followed in English common law. Later it was adopted by equity also for a better and
regular administration of justice
Basis of Doctrine:- “Necessity” is the basis of doctrine. Earlier it was believed that the doctrine of lis pendens
is based on notice because a pending suit is regarded as constructive notice of the fact that disputed title of the
property is under litigation.
But for administration of justice it is necessary that while any suit regarding title of property is pending in a
court of law, the parties shall not take decision by themselves and transfer the disputed property. Thus the
doctrine of lis- pendens is founded on necessity. It prevent the parties from disposing of a disputed property
in such a manner as to interfere with courts proceedings.
Essential ingredient of Sec.52:-
• There is a pendency of a suit or proceeding.
• Such suit or proceeding must be with respect to a right to immovable property directly and specifically.
• Pendency of suit must be in a court of competent jurisdiction,
• Suit or proceeding must not be collusive.
• A party to suit transferred or otherwise dealt the property in dispute.
• The Transfer must be such as affect the rights of the other party to litigation.
In case all these conditions are fulfilled, the transferee bound by the decision of the court.
A Pendency of suit or proceeding:- Explanation to the section provide that pendency commence from the
date of the presentation of the plaint. But mere presentation is not sufficient, plaint must also be accepted by
the court.
As regard the termination of the suit or proceeding, the explanation provides that pendency continues until:-
Suit or proceeding has been disposed of by a final decree or order. Where an appeal is preferred, the suit shall
be disposed of by the final order or decree of appellate court, and
Complete satisfaction or discharge of such decree or order has been obtained ,or
Such satisfaction or discharge has become unobtainable by reason of period of limitation.
Suit on Proceeding must be with respect to a right to immovable property- Litigation must be regarding
the title or interest in immovable property. Issues to suit shell relate to title or interest directly and specifically.
Where issues to suit indirectly refers to title or interest, Sec. 52 has no application following suits has been
held to be within the preview of Sec. 52 :-

• Suit for partition

 • A suit on mortgage
• A suit for pre-emption
• Easement suit etc.
And following question does not involve any question of right in immovable property:-
• Suit for debt or damage (Provided claim should be limited to money),
• Suit for an account.
• Suit for recovery of rent etc.
Suit must be pending in a court of competent jurisdiction:-Means that the court before which suit is
preferred must be competent to grant the relief prayed.
Suit must not be collusive:- Suit must not be filed with the malafide intention of getting judicial decision for
some evil design and there be no actual dispute between the parties.

Illustration-A Hindu wife file da maintenance suit against her husband with a secret agreement that during
the litigation the husband would transfer the property. During the pendency of thesuit,the husband sold the
[Link] a charge was created on that property in favour of the wife. But as the suit is collusive in
nature,the purchaser is not bound by the charge on the property.
Illustration based on P.C. decision in Gouri DuttaV Shaikh Sukar Mohammaed AIR 1948P.C.
A Party to suit transferred or otherwise dealt with the property:- Term transfer includes sale, exchange lease
& mortgage. The expression “otherwise dealt with’ relates to the transfer of some interest which do not strictly
come within the meaning of ‘transfer of property’ under sec. 5 of T.P.A. for instance surrender, entering into
compromise without the permission of the court etc.
Note I In Samarendra Kr. Sinha V Krishna Kumar NagAIR 1967 [Link] S.C. Stated that sec. 52 is
applicable to involuntary transfers as well. Therefore, doctrine of its pendens is applicable where transfer is
made by the order of the court .eg. Attachment and sale.
Note II It is necessary that the transfer is made by a party to the suit. Transfer made by a stranger does not
affected by Sec. 52.
Note III- Doctrine of lis-pendens do not apply to the transfer made with the permission of the court. eg.
Compromise with the permission of the court.
Transfer affect the rights of the other party to the suit- Aim of the section is to safeguard the interest of the
parties to suit during pendency of litigation. Thus whereby transfer the rights of transfer or only are affected,
doctrine does not apply. Similarly where by transfers rights of transferor inter se affected, sec. 52 does not
apply.
EFFECT OF LIS-PENDENS:- Normally a decree of a court binds only the parties to the suit. But under the
doctrine of lis-pendens, any stranger to the suit who purchases a property which is the subject matter of the
suit, during the pendency of the suit is also bound by the decree passed in the suit.
Sec.52, however, does not invalid ate the transfer, but render it subservient or subject to the rights of the parties
to suit. If the decision of the court is in favor of the transferor, the rights of the transferee is not affected by it
and if the decision goes against the transferor the transferee cannot get any interest in the property.
Exceptions to the Doctrine-The doctrine does not apply to:

• Bona fide transfers made without knowledge of the litigation.

• Movable property.
• Cases where the transfer is expressly permitted by the court.

Judicial Interpretation

• Gouri Dutt Maharaj v. Sheikh Sukur Mohammed (1948):

 o The Supreme Court emphasized that the doctrine aims to prevent the defeat of justice by
disallowing parties to alienate the property in a manner that impacts the legal proceedings.
• Jayaram Mudaliar v. Ayyaswami (1973):
o It was held that the doctrine is not based on the principle of notice but rather on the principle
of necessity for effective adjudication.

Conclusion
The Doctrine of Lis Pendens protects the interests of parties involved in a dispute over immovable property
and ensures that the litigation process is not rendered ineffective by acts of alienation during its pendency. It
safeguards the integrity of judicial proceedings and ensures equitable treatment of the litigating parties.

Question 3:What do you mean by Doctrine of part-performance.

Ans : The Doctrine of Part Performance is an important legal principle under Indian contract law that applies
to contracts relating to immovable property. It was introduced in Section 53A of the Transfer of Property
Act, 1882, and offers protection to parties who have partially performed a contract to transfer property but are
unable to fulfill the full terms due to one party's refusal to execute the agreement. This doctrine serves to
enforce certain agreements despite non-compliance with formalities such as registration or written
documentation, provided specific conditions are met.
In this article, we will explore the concept of Part Performance, its historical background, application under
the Indian legal system, conditions for its enforcement, case laws, and its significance in protecting the
interests of contracting parties.
Historical Background
Before the enactment of the Transfer of Property Act, 1882, the English legal system followed a principle
known as "equitable doctrine of part performance". This doctrine allowed courts of equity to enforce an
agreement for the sale of land or other immovable property when a party had begun to act on the contract by
partially performing it.
The rationale was that it would be inequitable or unjust to allow a party to deny the contract after having
allowed another party to undertake actions based on the agreement. Indian courts borrowed this equitable
principle and incorporated it in Section 53A of the Transfer of Property Act, 1882.
Part Performance under Section 53A of the Transfer of Property Act, 1882
Section 53A of the Transfer of Property Act, 1882 is the legislative provision that embodies the doctrine of
part performance. It reads:
"Where any person contracts to transfer for consideration any immovable property by a deed of sale, gift, or
other instrument, and the transferee has, in part performance of the contract, taken possession of the property
or any part thereof, or has done some act in furtherance of the contract, and the transferor has accepted the
payment of the consideration, or has acted in such a manner as to make the contract binding on him, then,
notwithstanding that the contract may not have been registered or that it does not comply with other formalities
required by law, the transferee may seek to enforce the contract."
Thus, Section 53A essentially enables the enforcement of an agreement related to the transfer of immovable
property even if it does not adhere to some formal legal requirements, like registration or writing, if the
transferee has partially performed the contract.
Conditions for the Doctrine of Part Performance
The doctrine is not automatically applicable to every situation. To invoke Section 53A, certain conditions
must be met. These conditions are as follows:
• Existence of a Contract to Transfer Property: There must be an existing valid contract to transfer
immovable property. This contract could be a sale agreement, gift, or lease agreement, but it must be
intended to transfer ownership or possession of immovable property.

• Partial Performance by the Transferee: The transferee must have acted in part performance of the
 contract. This includes taking possession of the property, paying part of the agreed consideration, or
performing any other significant act that signifies the transfer of ownership. The performance must be
clearly referable to the contract.
• Acceptance of Payment or Performance by the Transferor: The transferor must either accept the
payment made by the transferee or acknowledge the part performance of the contract. This is a crucial
condition for enforcing the doctrine, as it demonstrates the transferor’s consent to the terms of the
contract.
• Intention to Fulfill the Contract: The acts of part performance should be consistent with the intention
to fulfill the contract in its entirety. The transferee must not act merely as a pretext for taking possession
or benefiting from the property without intending to follow through with the contract.
• Inability to Enforce the Contract Due to Lack of Registration or Formalities: The party seeking
enforcement under Section 53A must be in a position where the contract cannot be enforced in its
entirety due to the absence of registration or other legal formalities, such as the requirements under the
Indian Registration Act, 1908.

• The Contract Must Not Be Void: The contract itself must not be void or illegal. If the contract is void
or unenforceable for any other legal reason, the doctrine of part performance cannot be invoked.

Case Law: Interpretation and Application of Section 53A

The courts have provided significant interpretation of Section 53A through case law, shaping the
understanding and application of the doctrine of part performance. Some notable cases include:
➢ K.K. Verma v. Union of India (1954): In this case, the court held that part performance under Section
53A operates as an equitable defense and allows the transferee to take possession and make
improvements on the property. The court emphasized that the transferee need not have formal
ownership, but they should be able to show that their possession was in furtherance of the contract.
➢ Shiv Kumar v. Smt. Rukmawati (2002): The Supreme Court reinforced the idea that mere possession
of the property without any reference to the contract would not be sufficient. There must be a clear
link between the transferee’s possession and the contract.
➢ P. K. Shajahan v. K.K. Narayanan (2015): This case clarified that the transferee's actions, such as
constructing a building or making significant improvements on the property, could amount to part
performance of the contract, even if the formalities (such as registration) were not completed.
➢ R.C. Cooper v. Union of India (1970): The court confirmed that even if the agreement lacks
registration, part performance can enable a party to take action for the enforcement of the agreement.
➢ V.R. Srinivasa v. M. K. P. Ramaswamy (2008): The Supreme Court in this case ruled that even if
the property’s transfer agreement is unregistered, the act of handing over possession or making
substantial improvements based on the contract would amount to part performance.

Impact and Significance of the Doctrine of Part Performance

The doctrine of part performance has had a significant impact on the Indian legal landscape. Its primary
significance lies in protecting the legitimate expectations of a party who has acted in good faith and partially
performed their contractual obligations.
• Protection of Transferee's Interests: The doctrine helps to protect the transferee who has, in reliance
on the contract, taken possession of the property or made improvements. Without the doctrine, the
transferee would be vulnerable to arbitrary revocation of the agreement by the transferor.
• Promoting Equity and Fairness: The core of the doctrine lies in promoting fairness and equity. A

transferor cannot escape from the agreement just because the legal formalities were not strictly
complied with, especially if the transferee has acted in good faith and made part performance of the
contract.
 • Enabling Enforceability in the Absence of Formalities: The doctrine allows the enforcement of
agreements that would otherwise fail due to technicalities, such as the absence of registration or written
formality. It recognizes the reality of property transactions and the reliance placed by one party on the
agreement.
• Preventing Fraud and Abuse: By allowing part performance to be treated as sufficient evidence of
contract performance, the doctrine prevents the transferor from denying the agreement after benefiting
from the transferee's actions, such as allowing possession or making improvements.
Criticism and Challenges
Despite its advantages, the doctrine of part performance has faced some criticisms and challenges in its
application:
• Lack of Uniformity: Courts may interpret the requirements of part performance differently, leading
to inconsistencies in judicial decisions. The application of Section 53A may sometimes appear overly
technical or unclear.
• Ambiguity in the Requirement of ‘Part Performance’: The definition of “part performance” is
sometimes debated, with courts having to decide what constitutes sufficient performance. This
ambiguity may lead to difficulties in enforcement.
• Potential for Abuse: There is concern that some individuals may attempt to use the doctrine to claim

• ownership or possession without fully intending to execute the contract, thus leading to misuse of the
legal principle.

Conclusion
The Doctrine of Part Performance under the Transfer of Property Act, 1882 is a powerful tool for ensuring
fairness in contracts related to immovable property. It protects the interests of parties who have partially
performed their contractual obligations, ensuring that they are not unfairly disadvantaged due to non-
compliance with certain legal formalities.
While the doctrine enhances the enforceability of agreements, it must be applied judiciously and with careful
consideration of the specific facts of each case. As judicial interpretations continue to evolve, the doctrine
plays a pivotal role in the dynamic relationship between contractual obligations and legal formalities in
property transactions in India.
 Unit-III

Syllabus-SpecificTransfers: Sale and gift

o ,Mortgage and charge,
o Lease and License,
o Exchange

Ques-1. What do you understand by “mortgage”. What are the essentials of a valid mortgage? Explain
in brief the various kinds of mortgage .What are the rights of a mortgagor on redemption of a mortgage
under T.P.A.? State the agreements which are considered as clog on equity of redemption.
Ans. ‘Mortgage’ - Section 58 of the Transfer of Property Act, defines a mortgage as a transfer of an interest
in specific immovable property made for the purpose of securing the payment of money advanced or to be
advanced by way of loan, or an existing or future debt or the performance of an engagement which may give
rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest at which
payment is secured for the time being are called the mortgage-money and the instrument [if any] by which
the transfer is effected is called a mortgage- deed.
Meaning of mortgage:- A mortgage is a transfer of an interest in specific immovable property as security for
the repayment of a debt. But such interest itself if immovable property .The nature of the right transferred
depends upon the form of the mortgages.
1. Mortgagor :-The term mortgagor does not include the transfers of the mortgager, for the transfers is not
bound by the mortgagor's personal covenant though in class of that section a subsequent purchaser would
be included Apart form this, the rules which apply to decided the competence of a person to be a transfer
equally apply to the case of a mortgagor Accordingly when a mortgage is executed by several persons,
some of whom are minors and some are pardanashin ladies who have not executed the deed in accordance
with law, the execution is not invalid as regards the rest and the mortgage is valid and binding on them.
2. Mortgagee;-A mortgagee is a person in whose favor a mortgage is created the term also includes, under
the new section59-A a person deriving a title under the original mortgages. Every mortgage deed must
name some person as a mortgage otherwise it cannot be mortgages .Thus, a security bond given to the court
cannot be enforced as a mortgage, for the court is not a judicial person .A mortgage
executedinfavorofaminorwhohasadvancedthewholeofthemortgagemoneyisenforceableby him or by other
persons on his behalf.
3. Mortgage –money;- The expression ‘mortgage money’ means the principal money and interest of which
payment is secured for the time bring . Accordingly a mortgage cannot redeem the property on there
payment only of the principal money .He must also pay the interest there on because the interest is regarded
as a charge upon the property just as much as the principal amount .The parties are, however, free to enter
into any contract to the country .But the mere fact that the mortgager makes themselves personally liable
for the payment of interest is not compatible with the interest is also forming a charge on the property. It
must be noted that the interest is provided for by the terms of the mortgage- deed where no provision is
made for it the security will only by for the principal money.

4. Mortgage deed;- The definition of mortgage in section 2(17) of stamp Act is under than in section 58 [a]
 of Transfer of property Act It includes pawn or pledge of movables and is not restricted to transfer of an
interest or right to immovable property. It also includes charges which creates a right to property.
Necessary ingredients to create a transfer by mortgage;-Following are ingredients necessary to create
a transfer by mortgage ;-
a. There must be a transfer of an interest

b. Such interest must be made in specific immovable property.

c. The transfer must be made to secure the payment at a present or future loan of money or existing or
future debt, or the performance of an engagement resulting in a pecuniary with in the category of
mortgage the relationship of better and creator must subsist between the parties and if there is no
debt for which the transfer has a security it is impossible to hold that the transaction is a mortgage.

Kind ofMortgage:
The section contemplate six kinds of :-
1. Simple Mortgage:- In a simple mortgage, the mortgager retains the possession of the property
with himself, covinent personally to paid the mortgage money, and agrees that in default of
payment shall have the right of realizing the debt by causing the property to be sold under an
order of court.
2. Mortgage by conditional sale: It is a transaction in which the mortgager ostensibly sells the
mortgaged property on condition : 1. That in default a payment of mortgage money on a certain
date, the sale shall become absolute, but on such payment being made; 2. The sale shall become
void, or 3. The buyer shall retransfer the property to the seller.
3. Usufructuary: A usufructuary mortgage in which 1. Delivery of possession or an express on
employed undertaking on the part on the mortgage to deliver it, and 2. The enjoyment of the
usufructuary by the mortgagee until all his dues under the mortgage is paid of 3. The mortgager
does not confer any liability to repay the money. That there being no personal liability to pay
there is no forfeiture and therefore, remedies by way of foreclose or sale no open to the mortgagee.
4. EnglishMortgage: An English mortgage in the transfer in which the mortgager binds himself to
repay the mortgage money on certain date, and transfers the mortgage property absolute to the
mortgagee, but subject to a condition, that the mortgagee will retransfer it to the mortgager upon
payment of mortgage money as agreed.
5. Equitable Mortgage: This also known as mortgage by deposit by title deeds. The ingredient of
an equitable mortgage are:
• Deliver of the title deeds.
• Existence of the debt.
• Specified cities.
6. Anomalous Mortgage; Such mortgages are composite mortgages formed by the combination of
two or more of the primary types. In this class of mortgage, the rights of the parties are governed
by the terms of the instrument. Atypical instance of the parties are governed by the instrument .A
typical instance of the combination of a simple with a usufructuary mortgage came up before the
Privy Council in Lal Narsingh Partap Bahadur Singh V. Mohd. Yakubkhan.

The doctrine of the equity of redemption is expressed in the maxim once a mortgage always a
mortgage. In the case of- Noakes & [Link] (1902) Ac.24. Lord Davey interpreted the maxim as
that a mortgage can not be made irredeemable and that a provision to that effect is void. In this leading
 case, Rice a licensed dealer mortgaged his premises and good will etc, to Noakes &Co. brewers subject
to a proviso that if Rice paid back all the money and interest due on the security Noakes & Co., would
surrender or re-convey the premises to Rice or to such persona she would direct .There was a covenant
in the mortgage deed that during the continuance of the term, whether or not any money be due on the
security. Rice would not use or sell upon the premises any malt liquors from Noakes & Co. was a “clog”
on the equity of redemption and as such void on appeal ,the House of Lords affirmed this decision .From
the very conception of a mortgage, 3 principles may be deduced;-
(1) Once a mortgage always a mortgage cannot be made irredeemable, and that a provision to
that effect is void. Thus mortgage is an exception to the maxim the agreement of the parties
overrides the law.
(2) The second principle is that the mortgage shall not reserve to him self any collateral
advantage outside the mortgage contract.
(3) The third principle deducible from the maxim once a mortgage always a mortgage and nothing
but a mortgage i.e., any stipulation which prevents the mortgagor who has paid the principle
interest and costs for getting back the property in the state in which he mortgaged it is void in
the leading case of Kreglinger V. New Patagonia Meat and cold storage Co. Ltd. (1914)
Ac.25.
Lord Parker observed that-
“If once you come to the conclusion that the parties intended that the property should be conveyed on
payment of the money secured any provision which would prevent this must be rejected as inconsistent with
and repugnant to the true intention on the other hand if you once come to the conclusion that this was not
the real intention of the parties, then transaction is not one of mortgage at all.
So far as stipulations for any collateral advantage in a mortgage is concerned the law has been summarized
in the above leading case by Lord Parker thus:-
There is now no rule in equity which precludes a mortgage whether the mortgage be made upon the occasion
of a loan or otherwise from stipulating for any collateral advantage, provided such collateral advantage is
not either.
(1) Unfair and unconscionable or.
(2) In the nature of a penalty clogging the equity of redemption or
(3) In consistent with or repugnant to the contractual or equitable right to redeem.

Ques.2: What do you mean by ‘lease’? What are the ingredients of a valid lease? How can the
duration of lease be determined?
Ans : Lease defined (Section 105):"A lease of immovable property is a transfer of a right to enjoy property,
made for a certain time, express for employee, or in perpetuity, in consideration of a price paid or promised,
or of money ,a share of crops ,service or any other thing of value ,to be rendered periodically or on specified
occasions to the transferor by the transferee, who accepts the transfer on such terms".
It means that a lease is the outcome of the right full separation of ownership and possession. Before the
lease the owner had right to enjoy possession of the land, but the lease he excludes himself during its
currency from that right .A lease is ,there-fore ,not a mere contract ,but is a transfer of an interest in land.
It creates a 'right in rem'.
It is not necessary that lease should always the reduced to writing .What is necessary for transfer of right of
enjoyment of the property made for a certain time, express or employed and for consideration of price, paid
or promised, the transferee must have put in possession of the demised property.
Essential of the lease:
• Parties- Lessor and Lessee.
• Property- Immovable
• Period- Any period, day, week, month or year or perpetual.
• Premium- Money or any other valuable.
• Partial transfer-i.e. demise or transfer of only right to enjoy.
A lease being a transfer of an interest in immovable property, it is a transfer of property within the meaning
of Sec. 5 and so must comply with the requirement of that and other sections of the Act, so far as may be
applicable.

The expression such property in Sec. 105 of this Act indicate that a lease can come into existence only in
regard to a particular and distinct property and if a lease is admitted for prove in respect to part of the
property and in the relationship of a landlord.
The basic character of transaction cannot be challenged on the basis of the pleadings of the parties.
Principles of Waiver, stopple or res-judicata cannot be applied of the basic character of a transaction.
A lease of property can be forfeited:
On the grounds of Section 111(g) it can be forfeited. According to Sec. 111(g) by the following way lease
can be forfeited-
1. In case the Lessee breaks and express condition which provides that on breach thereof, the Lessor may
re-inter or
2. IncasetheLesseerenounceshischaracterassuchbysettingatitleinathirdpersonorby claiming title in
himself or
3. The Lessee adjudicated an insolvent and the lease provide that the Lessor may re-inter on happening
of such event, and in any of these cases the lessor or his transferee gives notice in writing to the lessee
of his intention to determine the lease.
This Section does not apply to a lease created by devise. It does not apply in term to the agricultural lease,
which are exempted from its operation by Sec. 117.
In the case Sheela and other V. Firm Prahlad Rai Prem Prakash (2002) 3SCC 375, it was observed that
the law as to tenancy being determined by forfeiture by denial of he lessors title or disclaimer o the tenancy
has been adopted in India from the law of England were it originated as a principle in consonance with
justice equity and good conscience.
Determination of Lease:
A tenancy at will or sufferance is determined by demand for possession or by entry by landlord without
notice, or by the tenant quitting. Other tenancies are determined in one or other of the eight ways indicated
in Sec. 111.
➢ Efflux of time (Clause-a): A lease created for certain time naturally determined on the last day of the
term without any formality such as notice on either side. Such a lease does not terminate if the parties
die during the term, the reason being that the interest transferred on a lease is a heritable interest.
➢ Conditional Term (Clause-b): If the term of a lease is conditional on the happening of a certain event,
the lease determines when the event happens and if any part of the term otherwise fixed remains un
expired, it is of no consequence.
 ➢ Termination of Lessor's Interest (Clause -c): Where the lessor has only a limited interest or power
to grant a lease, and the lease is determined with that interest. For instance a lease by a Hindu Widow
would determined on her death unless it be justified by a legal necessity.
➢ Merger (Clause-d): When a lease hold and a reversion co-inside there is a merger of lesser interest.
The lease hold is the lesser state, for it is carved out of the state of the owner which is the reversion.
➢ Surrender (Clause-e): Another mode by which a lease is determined is were the lessee with the
consent of the lessor expressly surrenders of yield up his entire interest in the lease to the lessor.
➢ Implied Surrender (Clause -f): It provides for determination of a lease of immovable property by
implied surrender. Implied surrender or surrender by operation of law occurs-
(i) By the creation of a new relationship, or
(ii) By relinquishment of possession.
➢ Notice to quit in case of periodic tenancy: The last mode in which a lease is terminated is when a
notice to quit or to determine the lease expires. Such notice is necessary only in cases of periodic
tenancy. Such as a tenancy from year to year or from month to month under section 106.
➢ Forfeiture (Clause-g): It has been described in detail in the earlier heading A lease of property can be
forfeited.
Legal Provisions and Case Laws

• Section 107: Specifies how leases are made. If the term exceeds one year, the lease must be in writing
and registered.
• Case: R. Kanthimathi v. Beatrice Xavier (2000):
o The court ruled that a lease must comply with legal formalities to be valid.
• Case: Bhawanji Lakhamshi v. Himatlal Jamnadas Dani (1972):
o Held that oral leases for less than one year are valid under Section 106.

Conclusion: A lease under the Transfer of Property Act involves a temporary transfer of the right to use
immovable property, subject to certain conditions and formalities. The duration of a lease can be explicitly agreed
upon or determined by law, ensuring clarity and legal enforceability in landlord-tenant relationships.

Ques.3- Define Sale And explain essential condition of a sale and How sale is differentiated from
exchange?
Ans.: “Sales”—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part
promised.
Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees ,such transfer may
be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person
as he directs, in possession of the property.
Contract of Sale—A contract for the sale of immovable property is a contract that a sale of such property shall
take place on terms settled between the parties.
It does not, of itself create any interest in ,or charge on ,such property.
 Essentials of a Valid Sale—
➢ The parties i.e. the seller and the purchase rare competent.
➢ The subject matter ,i.e. the property is in existence.
➢ The money consideration i.e. the price has been fixed or referred.
➢ The conveyance i.e. the transfer has been made as prescribed under the law.
SELLER’SDUTIESANDRIGHTS
Seller’s Duties (liabilities) before the Sale—Before the sale is completed , the sellers duties are as
under
(i) To disclose material defects in the property or title ,if any
(ii) To produce the title-deeds for inspection.

(iii) To answer relevant questions as to title.

(iv) To execute conveyance.
(v) To take care of the property and title-deeds.
(vi) To pay the outgoings.

1. Disclosure of material defects—(a)Before completion of sale ,the seller is bound to disclose to the
buyer any latent material defect in the property or any defect in his own title (ownership rights)
The defect in the property which the seller is bound to disclose is a defect which is known to the seller
but the purchaser is not aware of it.
The buyer would be unaware of the defect if he is unable to know it because it is not apparent or visible.
Where the defect is of such a nature which is apparent and buyer or any person can discover it with ordinary
carefulness, the defect is patent. For example, where the property is a house with cracked or broken walls, the
defect in the house is patent. Where the defect is patent the seller has no duty to disclose it and the rule of
caveat emptor (purchasers be aware) shall apply. Under this section the seller has duty to disclose only latent
material defect. Defect is latent when it cannot be seen or discovered by a man exercising ordinary prudence
and care. A latent defect is hidden or concealed defect. For instance, underground drain which passes though
the land sold would be a latent defect because the buyer cannot see it while inspecting the land.
2. Production of title-deeds : S.55 (1) (b).—The next duty of the seller is to produce the title-deeds of
the property for inspection if buyer demands it for his satisfaction. However ,there is no duty to produce the
title-deeds unless it has been demanded by the purchaser. But, if demanded, the seller must produce it within
reasonable time even if the agreement requires them to be produced “forthwith”.
3. Answer relevant questions as to title:S.55(1)(c)—ownership of the property it is his interest that he
must be fully satisfied with the ownership rights of the seller and his authority to effect the sale. Therefore ,
inspection of the title-deeds is not enough. There must be certain doubts in the deeds which must be removed
before execution of the sale-deed. Accordingly, the seller’s next duty is to answer all questions put by the buyer
which are relevant for passing of the title.
4. Duty to execute conveyance : S.55 (1) (d).—The seller’s next duty is to execute the conveyance. That
is to say, he has to effect the transfer of ownership. This is done by singing or affixing thumb-impression on
the sale-deed by the seller. Where the seller does not sign or affix his mark on the sale-deed, there is no
execution of the sale-deed.
5. Care of property and title-deeds : S.55 (1) (e)— After execution of the conveyance, the next duty of
the seller is to take care of the property and the documents of title. They are to be handed over to the buyer
after the sale. In between the date of contract of sale and the delivery of property, although the seller continues
to be its owner yet, he has to keep the property, although the seller continues to be its owner yet, he has to keep
the property in tact so that it can be delivered to the buyer after the sale.
(i) Giving possession of property : S.55 (1) (f)—On being required by the buyer the seller has a duty to
give possession of the property to buyer or to such person as he (buyer) directs. There is an implied contract
to give the possession of the property to buyer. The seller has to do it; he (seller) shall not leave the buyer to
get the possession himself.
(ii) Covenant for title S.55 (2).—Sale is a transfer of ownership or absolute interest .When a person
contracts to sell his property, it is implied that he must be owner of that property otherwise he would not have
attempted to sell it. Section 55 (2) of the Act lays down that in every sale the seller impliedly undertakes a
guarantee that the interest which he is transferring subsists and he has authority to transfer the same.
Technically, this is known as ‘implied covenant for title.”
(iii) Delivery of the title-deeds:S.55(3).—After completion of the sale when buyer becomes owner
of the property, he must also get the titles-deeds which are the legal documents relating
to property sold. These documents are now of no use to buyer. Accordingly, the seller has to deliver the
title-deeds of the property to purchaser after completion of the sale. After sale, the title-deeds are to pass
on to the buyer as a natural consequence of the transfer of ownership.
Seller’s Rights before Sale: S.55 (4) (a) .— Before completion of sale, the sale, the seller is
entitled to all the rents, profits or other beneficial interests of the property. It may be mentioned that sale
is completed only upon the transfer of owner and as such he has every right to enjoy the profits of the
property. Before passing of the title, there is only a ‘contract of sale’. As discussed earlier, the contract of
sale does not create any proprietary interest in favour of the buyer.
BUYER’SDUTIESANDRIGHTS
(I) To close facts which materially increases the value of property?
(II) To pay the price.
(i) Duty of disclosure : S.55 (5) (a).—Before completion of sale, the buyer is liable to disclose to the
seller the facts which materially increases the value of property .This liability is limited to disclosure of
only those facts which relate to title or interest of the buyer. In some cases i.e. where the seller is an aged
lady or an illiterate person, it may happen that seller is ignorant about his own rights in property.
(ii) Payment of price: S.55 (5) (b).— The execution of sale-deed and payment of price take place
simultaneously. Therefore, for the completion of sale in favor of buyer, the seller has the duty of execution
of deed and buyer has corresponding duty of payment of price. But, the buyer is not bound to pay the full
amount before transfer of ownership. All that is required is that before execution, he either pays the price
or promises to pay it at a time and place of completion of sale. His duty under this sub- section is, therefore
,personal .Thus ,the duty of the buyer is to tender(make offer for)a conveyance for execution of the deed;
he is not bound to pay the price until the conveyance is executed.
 UNIT- IV

Easement Act : Object and main provision of the Easement Act.

Q. 1: Define easement and discuss under what circumstances a person may acquire an easement of
necessity?

Answer 1: "Easement" is defined in the Indian Easement Act, 1882, according to Section 4 as “An easement
is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent and continue to prevent something being done, in or
upon, or in respect of certain other land not his own.
Illustrations
1. A, as the owner of a certain house, has a right of way thither over his neighbor B’s land for purposes
connected with the beneficial enjoyment of the house. This is an easement.
2. A, as the owner of a certain house, has the right to go on his neighbors B’s land, and to take water for
the purposes of his household out of a spring therein. This is an easement.
3. A, as the owner of a certain house, has the right to conduct water from B’s stream to supply the fountains
in the garden attached to the house. This is an easement.
4. A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle
on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers
and servants, water or fish out of C's tank, or timber out of D's wood, or to use,for the purpose of
manuring his land, the leaves which have fallen from the trees on E’s land. These are easements.
5. A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and
re-passing. This right is not an easement.
6. A is bound to cleanse a watercourse running through his land and keep it free from obstruction for the
benefit of B, a lower riparian owner. This is not an easement.
Sec 5: Easements are either continuous or discontinuous, apparent or non-apparent: A continuous
easementis one whose enjoyment is,or may be,continual with out the act of man. A discontinuous
easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of
which is shown by some permanent sign which, upon careful inspection by a competent person ,would be
visible to him. A non-apparent easement is one that has no such sign.
Illustrations
1. A right annexed to B’s house to receive light by the windows without obstruction by his neighbor A.
This is a continuous easement.
2. A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
3. Rights annexed to A's land to lead water thither across B's land by an aqueduct and to draw off water
thence by a drain. The drain would be discovered upon careful inspection by a person conversant with
such matters. These are apparent easements.
 4. A right annexed to A's house to prevent B from building on his own land. This is a non-apparent
easement.
Easement for limited time or on condition:
Sec.6 of the Easement Act says that‘ An easement may be permanent, or for a term of years or other limited
period, or subject to periodical interruption, or exercisable only at a certain place, or at certain times, or
between certain hours, or for a particular purpose, or on condition that it shall commence or become void
or voidable on the happening of a specified event or the performance or non-performance of a specified
Act.’
EASEMENT OF NECESSITY:
Sec. 13 deals with the Easements of necessity and quasi easements. Where one person transfers or bequeaths
immovable property to another-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject
of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed
when the transfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed
or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property
of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such
easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was
enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall,
unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the
latter shall be entried to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was
enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily
implied, be entitled to such easement.
The easements mentioned in this section, clauses (a),(c)and (e)are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are,for the
purpose of this section, to be deemed, respectively, the transferor and transferee.
Illustrations
(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing overA’s
adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural
purposes only, over A?s adjoining land to the field sold.
(b) A, the owner of two field, sells one to B, and retains the other. The field retained was, at the date of the
sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to
B. A is entitled to a right to way, for agricultural purposes only ,over B?s field to the field retained.
(c) A sells B a house with windows overlooking A's land which A retains. The light which passes over A?s
land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. B is
entitled to the light, and A cannot afterwards obstruct it by building on his land.
(d) A sells B a house with windows overlooking A? s land. The light passing over A? s land to the windows
is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the land
to C. Here C can not obstruct the light by building on the land, for he takes its object to the burdens to which
it was subject in A?s hands.
(e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A
simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying
the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C
takes the land subject to the restriction that he may not build so as to obstruct such right.
(f) A is the owner of a house and adjoining land. The house has windows overlooking the land. A, retaining
the house, sells the land to B, without expressly reserving any easement. The light passing over the land is
necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B
cannot build on the land so as to obstruct such light.
(g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the
air, when necessary, with smoke and vapours from the factory.
(h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of
all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the
sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and
necessary for enjoying Z as it was enjoyed when the sale took effect.
(i) A, the owner of two adjoining building, sells one to B, retaining the other. B is entitled to a right to lateral
support from A's building, and A is entitled to a right to lateral support from B?s building.
(j) A, the owner of two adjoining buildings, sells one to B and the other to C. C is entitled to lateral support
from B's building, and B is entitled to lateral support from C?s building.
(k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of lateral and
subjacent support from A?s land as is necessary for the safety of the house.
(l) Under the Land Acquisition Act, 1870, a railway company compulsorily acquires a portion of B's land for
the purpose of making a siding. The company is entitled to such amount of lateral support from B's adjoining
land as is essential for the safety of the siding.
(m) Owing to the partition of joint property, A becomes the owner of an upper room in a building and B
becomes the owner of the portion of the building immediately beneath it, A is entitled to such amount of
vertical support from B's portion as is essential for the safety of the upper room.
(n) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing
A's land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house
and grounds.
14. Direction of way of necessity
 When a right to a way of necessity is created under section 13, the transferor, the legal representative of the
testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out
the way; but it must be reasonably convenient for the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.
Q.2:Point out the essential features of a license .When a license does become irrevocable?

Answer 2: CHAPTER VI of the Indian Easement Act, 1882 deals with LICENCES. Sec. 52 of the Act defines
"License" as follows:
“Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do,
in or upon the immovable property of the grant or, something which would, in the absence of such right, be
unlawful, and such right does not amount to an easement or an interest in the property, the right is called a
license.
Sec.53:Who may grant license
A license may be granted by anyone in the circumstances and to the extent in and to which he may transfer his
interests in the property affected by the license.
Sec.54: Grant may be express or implied
The grant of a license may be express or implied from the conduct of the grantor, and an agreement which
purports to create an easement ,but is in effectual for that purpose ,may operate to create a license.
Sec. 55:Accessory licenses annexed by law
All licenses necessary for the enjoyment of any interest or the exercise of any right, are implied in the
constitution of such interest or right. Such licenses are called accessory licenses.

Illustration
A sells the trees growing in his land to B. B is entitled to go on the land and take away the trees. Sec. 56:
License when transferable
Unless a different intention is expressed or necessarily implied, license to attend a place of public entertainment
may be transferred by the licensee; but, save as aforesaid, a license cannot be transferred by the licensee or
exercised by his servant or agents.
Illustrations
(a) A grants B a right to walk over A's field when ever he pleases. The right is not annexed to any immovable
property of B. The right cannot be transferred.
(b)The government grants B a license to erect and use temporary grain-sheds on government land. In the
absence of express provision to the contrary, B's servants may enter on the land for the purpose of erecting
sheds, erect the same, deposit grain therein and remove grain there from.
Sec.57: Grantor’s duty to disclosed efects
The grantor of a license is bound to disclose to the licensee any defect in the property affected by the license,
likely to be dangerous to the person or property of the licensee, of which the grantor is, and the licensee is not,
aware.
Sec.58: Grantor’s duty not to render property unsafe
The grantor of a license is bound not to do anything likely to render the property affected by the licence
dangerous to the person or property of the license.
Sec.59: Grantor’s transferee not bound by license
When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by
the license.
Sec.60: License when revocable
A license may be revoked by the grantor, unless-
(a) It is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses
in the execution.
Sec.61:Revocation express or implied
There vocation of a License may be express or implied.
Illustrations
(a) A, the owner of a field, grants a license to B, to use a path across it .A with intent to revoke the license,
locks a gate across the path. The license is revoked.
(b) A, the owner of a field ,grants a license to B to stack hay on the field. A lets or sells the field to C. The
license is revoked.
Sec. 62: License when deemed
(a) When, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected
by the license;
(b) When the licensee releases it, expressly or impliedly ,to the grantor or his representative;
(c) where it has been granted for a limited period, or acquired on condition that it shall become void on the
performance or non-performance of a specified act, and the period expires, or the conditions is fulfilled;
(d) where the property affected by the license is destroyed or by superior force so permanently altered that the
licensee can no longer exercise his right;
(e) where the Licensee becomes entitled to the absolute ownership of the property affected by the license;
(f) where the license is granted for a specified purpose and the purpose is attained or a bandoned, or
becomes impracticable;
(g) where the license is granted to the licensee as holding a particular office, employment or character, and
such office, employment or character ceases to exist;
(h)where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation
is not in pursuance of a contract between the grantor and the licensee;
(i)in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.
Sec. 63: Licensee’s rights on revocation
Where a license is revoked, the licensee is entitled to a reasonable time to leave the property affected thereby
and to remove any goods which he has been allowed to place on such property.
Sec.64:Licensee’s rights on eviction
Where a license has been granted for a consideration, and the licensee, without any fault of his own, is
 evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is
entitled to recover compensation from the grantors.

Ques.3 - What is Actionable claim? How the actionable claim of a transferee has been determined?
Ans- An actionable claim is a legal concept defined under Section 3 of the Transfer of Property Act, 1882. It
refers to a specific category of claim that pertains to debts or beneficial interests in movable property that are not
in the immediate possession of the claimant. Such claims can only be enforced through legal proceedings or
actions in a court of law. This concept bridges the gap between tangible property and intangible rights, allowing
claims to be recognized, transferred, and enforced under specific legal conditions.
According to Section 3, an actionable claim includes:

1. A claim to any debt (other than a secured debt) that is not yet in possession of the claimant.
2. A beneficial interest in movable property, which can only be enforced by legal action and not by physical
delivery or possession.

Key Features:

1. Debt or Beneficial Interest:

o It involves unsecured debts or rights to movable property.
o Secured debts (e.g., those backed by a mortgage or pledge) are excluded.
2. Legal Enforcement:
o The claim cannot be exercised directly by the claimant but requires legal proceedings for
enforcement.
3. Transferability:
o An actionable claim is transferable under Section 130 of the Act, subject to certain conditions.
4. Examples:
o Unpaid money due on bonds, promissory notes, or book debts.
o Arrears of rent.
o Claims to insurance money or rights under contracts yet to be performed.
5. Exclusions:
o Claims to immovable property, such as ownership or leasehold rights, are not actionable claims.
o Debts secured by collateral or a mortgage are excluded.

Transfer of Actionable Claims -The transfer of actionable claims is governed by Section 130 of the

Transfer of Property Act. This section sets out the legal framework for transferring such claims, ensuring that the
transferee acquires the rights to enforce the claim as effectively as the transferor.
Essentials for Transfer of Actionable Claims:

1. Mode of Transfer:
o The transfer must be in writing.
o It should be signed by the transferor or their duly authorized agent.
o The transfer deed must clearly specify the actionable claim being assigned.
 2. No Registration Required:
o Unlike transfers of immovable property, registration is not mandatory for actionable claims unless
required by other laws.
3. Notice to the Debtor:
o To make the transfer binding on the debtor or the person liable for the claim, a notice of the transfer
must be given to them.
4. Absolute Transfer:
o The transfer must be complete and unconditional. Conditional or partial assignments are not valid.

Illustrations

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having
received notice of the transfer, as prescribed in Section 131, pays B. The payment is valid, and C
cannot sue A for the debt.
(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the
payment of an existing or future debt. If A dies, the Bank is entitled to receive
the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the
proviso in sub-section (1) of Section 130 and to provisions of Section 132.

Rights of the Transferee

Once the transfer of an actionable claim is effected, the transferee acquires the following rights:

1. Right to Enforce the Claim:

o The transferee steps into the shoes of the transferor and gains the legal right to sue or recover the
claim.
2. Title to the Claim:
o The transferee becomes the lawful owner of the actionable claim and can enforce it as if they were
the original claimant.
3. Defenses Available to the Debtor:
o The debtor can raise the same defenses against the transferee that were available against the
transferor, such as illegality, fraud, or any other defense arising out of the original contract.
4. Right to Proceeds:
o Any proceeds arising from the claim, whether through legal enforcement or settlement, belong to
the transferee.

How the Actionable Claim of a Transferee is Determined

1. Legal Validity of the Transfer:

• The actionable claim must be validly assigned through a written document.

• The transferor must have the legal capacity to transfer the claim.
• 2. Effectiveness of the Transfer:
 • The transfer becomes effective against the debtor only after notice of the transfer has been provided. This
ensures the debtor is aware of the new claimant and their obligation to pay or perform.

3. Rights and Obligations of the Transferee:

• The transferee has the same rights to the claim as the transferor. This includes the right to enforce the
claim in a court of law.
• The transferee is also subject to the same defenses that the debtor could have raised against the transferor.

4. Case Laws on Determining Transferee Rights:

• Ramasamy Pillai v. Bhanuswami (1929): The court clarified that actionable claims include debts
enforceable by law, emphasizing that a valid transfer grants the transferee all rights to the claim.
• Jaffer Meher Ali v. Budge Budge Jute Mills Co. (1949): It was held that notice to the debtor is essential
to bind the debtor to the transferee’s rights.
• Kapilaben v. Ashok Kumar (2021): The court reiterated the requirement for written documentation and
notice for a valid transfer of actionable claims.

5. Legal Protections:

• The transferee’s claim is protected against third parties once the transfer is effected and notice is served.
• This ensures the claim’s integrity and reduces the risk of conflicting claims.

Conclusion

The concept of actionable claims under the Transfer of Property Act, 1882, is an essential legal mechanism for
transferring and enforcing intangible rights to movable property. By providing a framework for transferring such
claims, the Act ensures that claimants can monetize or assign their rights while protecting the interests of
transferees and debtors. The requirement for written documentation, notice, and adherence to legal formalities
ensures transparency and reduces disputes. This doctrine continues to serve as a cornerstone of commercial and
legal transactions involving intangible rights, reflecting its enduring relevance in modern legal systems.