LLB Exam 2020

Law of Property and Easement

Q1. Notice – Concepts its kind under Transfer Of Property Act,1882

The concept of Notice for the purpose of The Transfer of Property is
given under Section 3 of Transfer of Property Act, 1882 (TPA).

Notice means to have knowledge of something i.e. to know

something. In law, it means knowledge of a fact. It is used to decide
on conflicting claims of two parties. In law, the Notice or Knowledge
of a fact affects one’s legal rights and liabilities.

Under Section 3 of TPA Notice can be;

1.Actual or express Notice or

2.Constructive Notice,

Express or Actual Notice

Actual notice means when a person actually knows about the existence of a
fact. The fact must be definite information given in the course of negotiations
by a person interested in the property. The information of fact should not be
a rumour or hearsay and thus is not bound by such information.

In other words, actual notice takes place when the information is such that it
would operate upon the mind of a rational man and would make him act
based on the knowledge so acquired.

Constructive Notice
According to Section 3, a person is said to have notice of a fact, which he
would have known, but for his “gross negligence” or “willful abstention from
making an enquiry or search” does not know. However, it is such knowledge
which a person with ordinary prudence ought to have known. In other words,
constructive notice of facts are those facts which a person ought to have
known, but because of gross negligence or wilful abstention does not know
it.

Thus in Constructive notice, there is a legal presumption, that a person

should have known a fact as if he actually knows it.

Therefore Constructive notice is knowledge of those facts which a court

imputes on a person. If the circumstances indicate that a reasonably prudent
person ought to have known a particular fact related to the transaction of
transfer, then he will be deemed to know it.

Illustration: A sells the house by a registered document to B. He later

enters into a contract with C to sell him the same house. Law imposes a duty
upon C to inspect the registers at the Registrar’s office, and if he does that,
he would come to know about the sale in favour of B. A failure to inspect the
register will be detrimental to the interests of C, as he would be imputed with
constructive notice of the registered transaction.

Wilful abstention from enquiry or search

Wilful means a person deliberately made an effort to avoid or abstain from getting notice of
something.

Wilful abstention can be understood from observations in Jones v. Smith

(1841)

“cases in which the court is satisfied from the evidence before it that the
party charged has designedly abstained from the inquiry for the purpose of
avoiding it”.

Illustration: A mortgaged his house to B, who omits to investigate the title

deeds relating to the house. C has a charge on mortgaged property. It will
be presumed that B have the notice of the existence of charge. In this
illustration it is duty of B in the eyes of law to check and satisfyhimself that
the property is free of any issues.

Gross Negligence
Constructive notice also applies where the transferee ought to have known
some fact, but because of gross negligence, he is unaware of it. Gross
Negligence was explained in Hudston v. Viney as gross negligence “does not
mean mere carelessness”. It means carelessness of such an “aggravated
nature”, that indicates an attitude of “mental indifference to obvious risks”.

For instance, If the transferee fails to read a note on the paper that the
property is subject to a charge, while the papers are in his possessions, then
the court will not entertain the plea of no Notice and will impute knowledge
or notice of charge.

Thus Constructive notice demands due diligence with respect to transactions

related to the transfer by the transferee.

Illustration: A sold his property to B for 10lakhs and delivered possession

of it to B. B pays 5 lakh immediately, at the time of conclusion of the
contract and promises to pay the balance 5 lakh after 6 months.

The fact that the balance of 5 lakh has to be paid by B to A is written in the
title deed. B eventually fails to pay A the remaining amount and mortgages
this property by depositing the title deed to C and gets a loan of 5 lakh from
C on the basis of the title deed.

B fails to pay C also and this property which was mortgaged to C is sold by
C.

Now A files a suit against C to recover his 5 lakh. The question whether C is
liable or not will be decided by imputing Constructive Notice to C. It must be
noted that it was already written in the title deed that B has to pay A the
balance amount and these title deeds were in possession of C and on the
basis of these title deeds the loan was advanced to B. Thus it can be said
that C “would have known” about the nature of the title deed.

Moreover, C as a reasonably prudent person ought to have examined the

title deed carefully to get notice of the fact that B is supposed to pay A 5
lakh.

If he fails to do that he has committed “gross negligence” under Section 3 of

TPA. Further, if he had examined the deeds and discovered the fact of
payment to A, then he ought to have investigated further. If he does not do
it then he is guilty of “willful abstention from making an enquiry or search”
under section 3 of TPA.

Thus, whether the transferee is to be imputed with constructive notice or not

has to be determined by the circumstances, surrounding a transaction. Thus
it is a question of fact and not of law.
Conclusion
Thus it can be said that Constructive notice is a manifestation of the rule of
Caveat Emptor. This is because according to Constructive notice, a person
ought to have known a fact as if he actually does know it. It presupposed
that in property translation a transferee ought to ascertain and verify certain
facts for safeguarding his own interest. Thus he must be aware of the nature
of the transaction. These facts may relate to property or the transferor, like
whether the property is free of any charge or encumbrances or whether the
transferor is competent to transfer the property or not.

Law puts it as the duty of the transferee, as a reasonably prudent person to

be reasonably vigilant and diligent to ascertain the facts, inspect the
documents relating to property in possession of the transferor, inspecting
concerned persons, even with relevant statutory authorities, if required.
Failure to do this would result in the imposition of Constructive notice.

Q2. Explain Immovable property

Immovable property: According to the General Clauses Act,

1897 immovable property includes land, benefits arising out of the
land, things that are attached to the land. Under transfer of property,
the immovable property can be defined as all property are
immovable property other than standing timber, growing crops, or
grass.
Narayana Sa vs. Balaguruswami (1923)

In this case, large artillery was fixed for blowing liquor. The Court
held that it would be considered as movable property if it was fixed
in the land, not with an intention for beneficial enjoyment.

Sr. Transfer
Property Act
No between

Living to Transfer of property

1 Immovable property
living Act, 1882

2 Movable property Living to Sale of goods Act,

 living 1930

Immovable property and Indian Succession Act,

3 Dead to living
Movable property 1925

Definition of immovable property given under Transfer of Property

act, 1882 is exclusionary one.

It provides that immovable property does not include standing

timber, growing crops, and grass. Further, the transfer of property
act provides definition for things attached to earth which means—
(a) rooted in the earth, as in the case of trees and shrubs; (b)
imbedded in the earth, as in the case of walls or buildings; or (c)
attached to what is so imbedded for the permanent beneficial
enjoyment of that to which it is attached;.

Q.3 Exchange :

Ans Section 118 to section 121 of the transfer of property 1882

speaks about the exchange.

Exchange -

According to section 118 of transfer of property Act 1882, when

two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing or both things being money
only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be

made only in manner provided for the transfer of such property by
sale.
Right of party deprived of thing received in exchange -

As per section 119 of the said act, if any party to an exchange or

any person claiming through or under such party is by reason of any
defect in the title of the other party deprived of the thing or any part
of the thing received by him in exchange, then, unless a contrary
intention appears from the terms of the exchange, such other party
is liable to him or any person claiming through or under him for loss
caused thereby, or at the option of the person so deprived, for the
return of the thing transferred, if still in the possession of such other
party or his legal representative or a transferee from him without
consideration.

Rights and liabilities of parties -

According to section 120 of the transfer of property Act, each

party has the rights and is subject to the liabilities of a seller as to
that which he gives, and has the rights and is subject to the liabilities
of a buyer as to that which he takes.

Exchange of money -

Section 121 of the transfer of property Act deals with exchange

of money, On an exchange of money, each party thereby warrants
the genuineness of the money given by him.

Q3. Licence

Section 52 of Indian Easement Act, 1882 defines licence

as something in which a person grants another, or a certain number
of other persons, the right to do or continue to do in or on the
grantor's immovable property. This principle was incorporated into
the Indian Easements Act of 1882.
 Section 52 till Section 64 of the Indian Easements Act, 1882 are
concerned with licenses and their administration. Unlike a Lease, a
license is merely a right to allow the use of the subject land. Lease
involves the transfer of possession of the property/land area to the
lessee. A lease implies to give the lessee the possession of the
premises/land area. The lessor shall retain only the right of
possession of the subject land unless otherwise agreed. On the other
hand, the license is merely given permission and that authorization
does not require the full ownership right to the property in question.
The licensor reserves the legal as well as the physical right of
possession in a licence.

The license, in a popular sense, means three things:

 Authorization to do it,
 Certificate or document embodying the authorization in question,
and
 License fee which is the price granted for the privilege.

Essentials of a licence
 Two different persons.
 There has to be a grant.
 License is always useful.
 License is granted to do something in or upon the grantor’s
immovable property.
 The license does not relate to ownership of any land but only
creates a personal right or obligation.

Case Laws

Associated Hotels of India v. R.N. Kapoor

According to Section 52, as stated in the case, where an agreement only
allows the right to use the land in a specific manner or under certain
conditions while it remains in the possession and control of the owner,
thereof, it shall be a licence. Therefore, legal possession remains with the
property’s owner, but the licensee is allowed to use the premises for a
particular purpose.

But his occupation would be unlawful for the permission. This does not
establish any estate or interest in the property in his favour. Therefore, the
distinction between the two concepts is clear. The dividing line is clear
though it gets very thin or even blurred at times. At one time, the application
of the exclusive possession was considered unfailing and if a person was
granted exclusive possession of a premise, it would be conclusively proved
that he was a lessee.

It is important to take note of the essential features of licence as under:

1. A licence does not apply to land or property possession but merely

provides a legal right or duty.
2. Licence only tends to create a title or interest in the immovable
property to do something under the authority of the licence.
3. Licence neither can be transferred nor assigned.
4. The Licence shall be a strictly permissive right that occurs through
permission, express or implied, and not by adverse exercise or
otherwise.
5. It only legalizes a certain act that would otherwise be unlawful and
does not grant any interest in the property itself in or upon or over
which such an act is carried out.
6. A licensee cannot sue outsiders on his behalf.

Difference between Lease and Licence

Lease Licence

Creation of interest in the property No passing of interest in the property

The lease gives the tenant a right to exclusive The license confers no such right to
possession the licensee

Licence is non-transferable and non-

The lease is transferable and revocable
revocable
Difference between Licence and Easement
Licence Easement

Right in Personam Right attached with the property

Non-Transferable Transferable

Revocable on the will of grant Not revocable at the will of grant

Continuous use not necessary Continuous use necessary

Q, Onerous Gift

Section 127 of Transfer of Property Act, 1882 states: Onerous gifts.

—Where a gift is in the form of a single transfer to the same person
of several things of which one is, and the others are not burdened by
an obligation, the donee can take nothing by the gift unless he
accepts it fully.

Onerous gifts refer to the gifts which are a liability rather than an
asset. The word ‘onerous’ means burdened. Thus, where the
liabilities on a property exceed the benefits of such property it is
known as an onerous property. When the gift of such a property is
made it is known as an onerous gift, i.e., a non-beneficial gift. The
donee has the right to reject such gifts.

Section 127 provides that if a single gift consisting several properties,

one of which is an onerous property, is made to a person then that
person does not have the liberty to reject the onerous part and
accept the other property. This rule is based upon the principle of
“qui sentit commodum sentire debet et onus” which implies that the
one who accepts the benefit of a transaction must also accept the
burden of it. Thus, when two properties, one onerous and other
prosperous, are given in gift to a donee in the same transaction, the
donee is put under the duty to elect. He may accept the gift together
with the onerous property or reject it totally. If he elects to accept
the beneficial part of the gift, he is bound to accept the other which
is burdensome. However, an essential element of this Section is a
single transfer. Both the onerous and prosperous properties must be
transferred in one single transaction only then they require the
obligation to be accepted or rejected in a joint manner.

In case the onerous gift is made to a minor and such donee accepts
the gift, he retains the right to repudiate the gift on attaining the age
of majority. He may accept or reject the gift on attaining majority and
the donor cannot reclaim the gift unless the donee rejects it on
becoming a major.

Q. Actionable Claims

Actionable claim is defined in Section 3 of the Transfer of Property

Act, which was included in the Act by the Amending Act II of 1990.
Actionable claim is an intangible movable property, and its transfer is
dealt with in Chapter VIII of the Act.

According to Section 3 of the Act, actionable claim means:

1. Claim to an unsecured debt

2. Beneficial interest in a movable property

These are both claims that are recognized in the Courts of law as
affording relief. There are other types of claims also that afford relief
and are actionable in the Courts of law, such as secured debts and
tortuous suits like defamation or nuisance. But those are not
categorized under the meaning of actionable claim. The term
actionable claim only covers the above mentioned two types of
claims.

Unsecured Debt

Unsecured debt refers to all monetary obligations of a certain

amount, and that is not covered by any security in the form of
mortgage, pledge or hypothecation.

It extends to all kinds of monetary obligations, such as rent or

payment on sale of property etc.

The three requirements for a transaction to qualify as unsecured

debt are:

1. Monetary obligation
2. No security
3. Certainty of amount of money obligated

Beneficial Interest in Movable Property

If a person has the right to possess a movable property, then it is said

that he has beneficial interest in that movable property. But if that
property is not in his possession, then he has an actionable claim. So,
the requirements to constitute this type of actionable claim are:

1. Movable property;
2. The movable property is not in the possession of the
claimant;
3. The claimant has the right to possess that movable property.
For example, if A sells his car to B and B has completed his obligation,
that is, B has forwarded the consideration from his side, then B has
the right to possess the car; but if B is unable to acquire possession,
then B can approach the Court to claim this possession.

But if the movable property is already in the possession of the

claimant, either actual or constructive, then he cannot claim
possession. So, if in the previous example, A had given the car keys
to B, then it can be said that B has constructive possession, and
hence, B cannot approach the Court to claim possession.

Instances of Actionable Claims

Some examples of actionable claims are:

1. Claim for arrears of rent. [3]

2. Claim for money due under insurance policy. [4]
3. Claim for return of earnest money. [5]
4. Right to get back the purchase money when the sale is set
aside. [6]
5. Right of a partner to sue for an account of the dissolved
partnership firm. [7]
6. Right to claim benefit under a contract for the purchase of
goods. [8]
7. Right to get the proceeds of a business. [9]
In all of these instances the amount for which the suits are filed are
certain and definite. So, such claims are transferable under
actionable claims.

Instances of Claims not recognized as Actionable Claims

There are certain types of rights and claims which are not recognized
as actionable claims, and hence cannot be transferred. Some
examples of this type of claims are:
 1. Right to get damages under the law of torts or for the breach
of a contract: Since these are uncertain amounts of money
and hence, this cannot be transferred. [13]
2. Claim for mesne profits: This is also uncertain, and so cannot
be allowed to be transferred. [14]
3. Copyright, patents and trademarks: These rights are personal
in nature, as these are available to that particular person.
[15]
4. Decree or judgment of debt: This cannot be transferred
under actionable claim, as after the judgment has been
pronounced, no action subsists that could be transferred.

Conclusion
Actionable claim is an intangible movable property, and it is
transferable. It mainly refers to the types of claims that can be
recovered through proceedings in Courts. Out of multiple such kinds
of claims, the concept of actionable claim includes two types, which
are claims on unsecured debt and beneficial interest in movable
property. Such claims can be transferred to another person, but
certain people are barred from becoming transferee of actionable
claims. This bar has been imposed in order to maintain the integrity
of Court proceedings. The concept of actionable claims is a highly
important one that all law students must be clear with.

Q. Define Easement under The Indian Easements Act, 1882.

Meaning and nature of Easements

The concept of easement has been defined under Section 4 of The
Indian Easements Act, 1882. According to the provisions of Section
4, an easementary right is a right possessed by the owner or
occupier of the land on some other land, not his own, the purpose of
which is to provide the beneficial enjoyment of the land. This right is
granted because without the existence of this right an occupier or
owner cannot fully enjoy his own property.

It includes the right to do or continue to do something or to

prevent or to continue to prevent something in connection with or
in respect of some other land, which is not his own, for the
enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the

earth and the words ‘beneficial enjoyment’ denotes convenience,
advantage or any amenity or any necessity. The owner or occupier
referred to in the provision is known as the Dominant Owner and
the land for the benefit of which the easementary right exists is
called Dominant Heritage. Whereas the owner upon whose land the
liability is imposed is known as the Serviant Owner and the land on
which such a liability is imposed to do or prevent something, is
known as the Servient Heritage.

Illustrations-

1. ‘P’ being the owner of certain land or house has a right of

way over Q’s house, adjacent to his house, to move out of
the street. This is known as right of easement.
2. A voluntary dedication of right by ‘X’ to the public for passing
or re-passing over a surface of certain land is not a right of
easement.
3. X’s right to go on his neighbour Y’s household for fetching
water from the well for the purpose of his own household is
a right of easement. Here, the way to the well is through Y’s
land only. Hence, X has an easementary right to pass through
Y’s household.
Other examples of right of easement includes-
 Right of way
 Right to discharge rainwater
 Right to sunlight etc

Q. Distinguish between apparent and non-apparent easement?

Apparent or Non- Apparent

An apparent easement is one the existence of which can be seen
through a permanent sign. It can be visible by a careful examination
and on reasonable foresightedness. It is also known as express
easement. An inspection is required to check the existence of a right.
For example- There is a drain from A’s land to B’s land and from
there it led to an open yard. This can be visible through a clear
inspection and is an apparent easement.

Whereas, a non-apparent easement is just opposite of what

apparent easement is. This kind of easement is not visible through an
inspection. There is no permanent sign as such. The right is in use but
is not visible and thus, is known as an invisible easement. For
example, A’s right annexed to A’s land to prevent B from building on
his own house.

Another example to explain non-apparent easement is that the right

to stop construction over a certain height.
Q. Difference between Vested & Contingent
Interest
Sign Ground of
Vested Interest Contingent interest
number Difference

Vested interest is Contingent interest is

provided in Section provided in Section 21 of
1. Section
19 of the Transfer of the Transfer of Property
Property Act, 1882. Act, 1882.

It is an interest which
It is an interest which is
is created in favour
created in favour of a
of a person where
person on a condition of
time is not specified
the happening of a
or a condition of the
specified uncertain
happening of a
event. The person having
specified certain
the contingent interest
event. The person
does not get the
2. Definition having the vested
possession of that
interest does not get
property but has the
the possession of
expectancy to receive it
that property but has
upon happening of that
the expectancy to
event but will not receive
receive it upon
the property if the event
happening of a
does not happen as the
specified certain
condition is not fulfilled.
event.

3. Condition The condition The condition involves

involves a specified a specified uncertain
certain event. A event. There is a chance
certain event means of the happening or non-
 an event that will happening of that
eventually happen. particular event.

Vested Interest
does not entirely
depend on the
condition as the Contingent interest
condition involves a is entirely dependent on
certain event. It the condition imposed
Fulfilment of creates a present on the transfer. Interest
4.
conditions right that is in effect is only transferred to the
immediately, transferee on the
although the fulfilment of the
enjoyment is condition imposed.
postponed to the
time prescribed in
the transfer.

This right
There is mere chance to
Right of is created as soon as
5. be having the ownership
Ownership the interest is
rights.
vested.

Death of the person Death of the transferee

who is having this before getting the
interest will not have possession of the
Death of any effect over that property will result in
6.
transferee interest as after the the failure of continent
deceased, the interest and the property
interest will vest in will remain with the
his legal heirs. transferor.

7. Transferable and Vested interest is Contingent interest is

 a Transferable right, but
whether it is heritable or
a Transferable and not, it depends upon the
heritable?
heritable right. nature of such any
transfer and the
condition.

There is present,
There is no present
immediate
The present right right of enjoyment, there
8. right even when its
of enjoyment. is a mere expectancy of
enjoyment is
having such a right.
postponed.

X professes to transfer
X professes to the property ‘O’ to Y on
transfer the property the condition that he
‘O’ to Y when he shall construct a well in
9. Examples attains the age of 20. his property. If he
There is a vested constructs, Y shall get
interest with Y for contingent interest in the
the property ‘O’. property until the
condition is not fulfilled.

Conclusion
The Transfer of Property Act, 1882 deals with two kinds of interest
that are vested interest and contingent interest. The concepts of
vested interest and contingent interest are something that is very
important to understand as there are many sections relating to these
concepts. The main point to understand about both the concept is
that the transfer of property involving Contingent interest takes
effect only after the condition is fulfilled, if the condition is not
fulfilled then the transfer will not take effect.
Q. What Is A Lease? Meaning,
Essential Elements And Types of
Lease?

What is Lease?
Section 105 of the Transfer of Property Act– defined Lease
as —

“A lease of immovable property is a transfer of a right to

enjoy such property, made for a certain time, express or
implied, 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.
Lessor, lessee, premium, and rent defined as—

The transferor is called the lessor, the transferee is called

the lessee, the price is called the premium, and the money,
share, service or other thing to be so rendered is called the
rent.
According to the definition mentioned above, a Lease is a
contractual agreement made for the transfer of the right of
immovable property from one person to another for a specified
duration of time in exchange for money, share of crops or any
other services. The rights transferred in the form of a lease can
be expressly or impliedly given to the other person who seeks
those rights. A person can get a lease by paying the total sum of
money as a premium or in installments as rent for the immovable
property.
Lessor and Lessee
In the contract of Lease, the person who is the transferor of the
property is called the Lessor and the person who is the transferee
is called the Lessee. Both Lessor and Lessee can come into the
contract of lease for the transfer of right of the immovable
property. The person acquiring the property in the form of the
lease can work on the property and share the profit gained by it
to the true owner of the property.

Lease is a contractual relationship between the Lessor and the

Lessee therefore, the essential elements of a valid contract are
necessary to be fulfilled and the parties should be competent to
the contract according to the Indian Contract Act, 1872.

Duration of lease
Lease being a contractual agreement specifies the date and time
of the contract and the duration in which the contract is valid. But
there are certain circumstances that do not describe the duration
of the lease and are neither mentioned in any of the local
customs and usages. In such circumstances Section 106 of the
Transfer of Property Act, 1882 is applicable which explains certain
situations and prescribes the duration of the lease.

Section 106 describes the duration of lease of two conditions

including Agriculture or Manufacturing purpose or other
purposes.

Agriculture Or Manufacturing purpose

According to Section 106, if a lease agreement is made for

agriculture and manufacturing purposes without specifying the
duration of the contract then it is prescribed to be for a year and
notice for termination of the lease is given in 6 months. The
notice made should be written and sent by post or personally
delivered to another party and duly signed by them. The notice
made should be affixed without hiding it from the other party.
Other Purpose

If the lease agreement is made for any other transactions then

the time duration of the lease is specified to be 1 month and
renewed every month if it is not mentioned in the contract. The
notice for such a lease can be given within 15 days of the lease
contract and delivered to the other party in the same way
mentioned for the agriculture or manufacturing lease purpose.

Essential features of a valid lease

There are various essential elements of a contract of lease
mentioned under the Transfer of Property Act, 1882.

1. Immovable Property – A contract of Lease can be made only

for immovable property or assets. It cannot be done for a
moveable property. The lease made will be for the working and
use of the immovable property and the Lessor and Lessee
exchange the rights of the property through the contract of
lease.

2. Parties – For a Lease agreement, the existence of two or

more parties is necessary for the proper transfer of rights of the
immovable property. It is a bi-partied system and it cannot be
complete in the absence of the parties, therefore, making the
contract of lease void.

3. Subject matter of lease – The subject matter or the purpose

of the lease agreement is compulsory and necessary to be
mentioned in the contract. The purpose of transfer of the right of
the immovable property, the services and profit decided, the
details of the immovable property, and other important data is
required to be written in the contract of lease.

4. Duration – The duration of a lease agreement is an essential

element which specifies the commencement of the contract and
how long the services and rights will be transferred through a
valid legal contract. Section 106 of the Transfer of Property Act,
1882 is referred if it is not mentioned in the contract of lease.
5. Consideration – Lawful consideration is necessary for the
fulfillment of a contract of lease. The transfer of the rights of the
immovable property is made by giving consideration in the form
of money as premium or rent, shared profit or as share of crops
and services.

6. Competency – The parties entering into a contract of lease

should be competent according to the Indian Contract Act, 1872.
Both the Lessor and the Lessee must be of sound mind, of
majority age, and not subject to any law which restricts them to
be a part of a valid contract. If the transfer of the right of
property is done to a minor, then a legal guardian is necessary to
work on behalf of the minor till he or she attains a majority age.

7. Valid contract essentials – Lease is a contractual agreement

made between two parties and therefore, it must follow
the essential elements of a valid contract given under Indian
Contract Act, 1872. Essential elements like Offer, Acceptance,
Consideration, Lawful Object, Intention of the Parties,
Competency, Capacity to Contract, Subject Matter, Writing and
Registration etc, are important to be followed in the Contract of
Lease.

8. Express and implied transfer – The transfer of right of the

immovable property between the Lessor and the Lessee should
be made expressly or impliedly, in a written contract. And the
notice of the termination of the lease should be given according
to the clause mentioned in the contract of lease and should be
duly signed and delivered among the parties.

9. Possession of Property – In the contractual agreement of

lease, transfer of the right of property is made and the parties
exchange the right of possession of the property for a certain
period of time and do not exchange the ownership of the
immovable property.

Types of lease
There are different types of lease agreement for the transfer of
the right of the immovable property, these are:
1. Financial lease

This type of lease is permanent and irrevocable. The Lessor

transfers the rights of the immovable property for a long period
of time and works on the property. The Lessee takes charge of all
the burdens and liabilities of the property.

For instance, if a person assigned another person to look after

his agricultural land and grow crops and maintain it without
specifying the termination of the lease, then it is said to be a
financial lease.

2. Operating lease

In this type of lease, the Lessee does not hold the burden of the
property and the lessor takes care of the property. This type of
lease is for a short period of time.

For instance, if a person transfers the property rights to another

person in the form of a lease to provide services on the
immovable property for a short period of time then it is
considered an operating lease.

3. Sale and lease back leasing

In this type of lease, the lessee sells the asset to the lessor with
an advance agreement between the two of leasing the asset back
to the lessee for a fixed lease rental period. Such a lease is also
known as Bipartite lease.

4. Direct lease

This is a tri-partied lease which includes :

 equipment supplier,
 lessor,
 lessee.
5. Single investor lease

In this type of lease, the lessor has to arrange for money in order
to finance his asset by way of debt or equity. The lender cannot
recover anything from the lessee, in case the lessor defaults in
payment.

6. Leveraged lease

There are three parties in this type of lease :

 the lessor,
 the lessee and
 the financier/lender.
The lessor arranges for the equity and the financier has the
responsibility to finance the debt.

7. Domestic lease

When the lease contract is made within the country it is known as

domestic lease.

8. International lease

There are two types of International lease. :

 Cross border lease

 Import lease
An import lease occurs when the lessor and the lessee reside in
the same country and the equipment supplier resides in a
different country. On the contrary, when the lessor and the lessee
reside in two separate countries ‘X’ and ‘Y’ then the lease is
known as a Cross border lease. It doesn’t matter where the
equipment supplier resides.

Conclusion
The term lease is widely used in our day to day life for the
matters relating to transfer of immovable property. It is defined
under Section 106 to Section 117, Chapter V of the Transfer of
Property Act, 1888. The Lease agreement is made similar to a
valid contract mentioned under the Indian Contract Act, 1872. It
is a bi-partied agreement where the parties transfer the property
rights for certain share of profit or service made on the
immovable property. It has various types and essentials
mentioned under the Act.

Q. 9 : Define a Sale. What are the essentials of a Valid Sale? Explain.

Ans. Section 54 of the Transfer of Property act, 1882 defines Sale and
the manner Sale is made. It provides as follows-

"Sales defined - 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 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 and interest in, or charge on such
property."

The following are the essential elements of a valid sale-

(i) The Parties (ii) The subject matter (iii) Transfer (iv) The price or
consideration.

(i) The Parties- There are two parties to a Sale-One transfers the
property the other acquires the property. The party that transfers
the property is the seller whereas the party which acquires the
property is called the purchaser or buyer. The seller should be
competent for transfer but the anyone can be the buyer who is not
unfit to be a transferee. The seller should be competent of making a
contract. Minor, person of an unsound mind or one who is insolvent
can not make a contract. A contract made by a minor is void. (Mohri
Bibi Vs. Dharamdas Ghosh 36, Cal. 539 Privy Council). Thus, they
cannot be sellers. The seller should have title on the property he
intends to sell and also transferable interest. The buyer can be a
minor, or even a man of unsound mind but such a person can buy
property through their guardians. Guardians can act on their behalf.

(ii) Subject matter- The transferable condition of the property for

sale is very important. Section 54 will be applicable in case of
immovable property. According to Section 54 those things than can
be sold are given below-

(i) Immovable property or tangible immovable properties, which are

fit for possession, which can be touched, for example-plot of land,
house, well, field etc.

(ii) Interest (benefit) and intangible immovable property, which is fit

for possession, which cannot be touched, for example-payable debt,
simple decrees of money, copyrights of books etc.

(iii) Reversion.

(iii) Transfer- The transfer of property from the transfer to the

transferee is the foundation stone of sale. Under Section 54 the
method of sale and other elements have been given. For a valid
transfer complete signatures, attestation and its registration is
necessary. Transfer means such a thing whereby to some living
person properly is transferred either in the present or in the future.
Such is transfer of property. In sale this condition arises because of
the change of ownership. If the ostensible property is of the value of
Rs. 100/- or more the transfer should be effected' through a
registered instrument. If the property is valued at less than Rs. 100/-
transfer can be cither effected through registration or through the
delivery of possession (Kashmir Chand Vs. Vazir Begum, A.I.R. 1939,
Nagpur 35) and in the case of Jhandu Vs. Ramesh Chand, A.I.R. 1971,
Allahabad 189 the Court observed if the instrument is registered the
transfer is effected from the date of writing, the contract not the
date of registration.

Transfer of ownership or title includes transfer of all those rights of

the seller which he has a right to exercise. If there are trees standing
in the immovable property then those trees will also be included in
the transfer of immovable proper. [A.I.R. 1968, S.C. 612, Inder Vs.
Naubat, 7 Allahabad 558 F.B.). Thus, the simple meaning of Sale is to
transfer property for price of consideration. In a dissolved for in the
rights of the partners can not be called harmonious distribution
because their transfer is not for a consideration. (Commissioner of
Income Tax Vs Devansinay Corporation A.I.R. 1968, S.C. 676)

(iv) The price or consideration- price means money or value in terms

of money. When transfer of title is made for money it is called Sale, if
ownership of property is changed for another property, we call it
exchange. The price can be paid in full or a promise to pay the price
can also be made i.e., any part of the price can be paid and a promise
to make the payment of the remaining part can also be made. If the
seller does not get the remaining part of the promised amount, then
he can file a suit against the buyer for its recovery but the seller
cannot transfer it to somcone else by declaring the sale void (Shivlal
Vs. Bhagwan I.L.R. (1889) 11 Allahabad 244). In the case of Shah
Lalcnand Vs. Inderjit (I.L.R. (1900) 22 Allahabad 490] the Court
observed that oven if it has been admitted in the registered
Instrument that the seller has received the price, the seller still has
the right to prove that he had not received the price.

Q. Define Easement. Discuss the essentials of Easement.

The concept of easement has been defined under Section 4 of The

Indian Easements Act, 1882. According to the provisions of Section
4, an easementary right is a right possessed by the owner or
occupier of the land on some other land, not his own, the purpose of
which is to provide the beneficial enjoyment of the land. This right is
granted because without the existence of this right an occupier or
owner cannot fully enjoy his own property.

It includes the right to do or continue to do something or to

prevent or to continue to prevent something in connection with or
in respect of some other land, which is not his own, for the
enjoyment of his own land.

The word ‘land’ refers to everything permanently attached to the

earth and the words ‘beneficial enjoyment’ denotes convenience,
advantage or any amenity or any necessity. The owner or occupier
referred to in the provision is known as the Dominant Owner and
the land for the benefit of which the easementary right exists is
called Dominant Heritage. Whereas the owner upon whose land the
liability is imposed is known as the Serviant Owner and the land on
which such a liability is imposed to do or prevent something, is
known as the Servient Heritage.

Essentials of Easements

1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two

properties i.e dominant and servient heritage is a must. This is
because as per the definition, it is the right exercised by the owner or
occupier of one land for enjoying the benefit of his/her land, over the
land of some other person. Dominant and servient heritage cannot
be one. Thus, the existence of two properties and that to be separate
from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties

shall be different and not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a

way which includes express and implied benefits.
4. Positive or Negative

Easements can be both positive or negative. Former refers to a right

through which the dominant owner does some act to exercise the
right over the land of the servient owner. Whereas, the latter
denotes an act of prevention. In a negative easement the dominant
owner prevents or restricts the servient owner from doing certain act
or acts.

In a right of easement an owner of dominant heritage can do an act

or prevent the servient owner from doing something but he cannot
bind the servient owner to do something for him.

The easementary right exists only when two heritages are adjacent
to each other. It is a right in rem, which means a right available
against the whole world. Easement as a right is always annexed to
the dominant tenement. It is a right of re-aliena which means a right
over a servient tenement and no on one’s own land.

OR
EASEMENT
Section 4 of the The Indian Easements Act, 1882 defines “Easement”
as:

“An easement is a right which the owner or occupier of certain land

to do and continue to do something or to prevent and continue to
prevent something being done in or upon in respect of certain
another land not of his own.”
Illustration- ‘A’ is the owner of a property so he can construct
anything on his land, but he cannot construct an object that creates
disturbance to his neighbors in using natural facilities e.g., light, air
etc. Getting air and sunlight is ‘B’s easement.
ESSENTIAL ELEMENTS OF EASEMENT
1. Dominant Heritage and Servient Heritage- There must be
a dominant heritage & a Servient heritage. The property
or the heritage in which there are some privileges, is
called Dominant heritage and the owner of such property
is called the dominant, whereas the property upon which
the liabilities are imposed is called Servient heritage.
Therefore, two properties are necessary for the
easement.
2. Dominant and Servient Heritage to be separate- An easement
is not created on the happening of one property in two
properties and it is expected that the owner of the two
properties must be separate or different. In an easement, it is
compulsory that the dominant and servant heritage must be
separate properties. In Swamiyar Devsthanam VS. V. Kanak
Laxmi” (1975 Andhra L.T. 483), the Court decided that anyone
cannot acquire an easement from his property. Section 4
provides states it in the words “Which is not his own”. In the
case of Radhika Narayan VS. Chandra Devi (A.I.R. 1981 Delhi
118) the Delhi High Court has also stated that “for the existence
of an easement it is necessary that in it the enjoyment be on
the land of such person’s owner who is not an owner of the
occupied property”.
3. Easement used as the status of power of land or
occupant- Another essential element of the easement is that
the owner of the property must use easement as the status of
power. In other words, it can be said that the use of easement
can only be done by the person who is the owner of the
property. There is no issue in using the easement if someone
has no property, so easement is attached to the land.
4. The use of easement done for the beneficial consumption-
The easement must be used for the beneficial consumption of
the dominant property which includes facilities, remote profits,
etc.
 5. Non-availability of the easement to Servitude
owner- Easement is available only to the Dominant owner, and
not to Servitude owner. In “Ramchandra VS. Diwakar” (A.I.R.
1957 M.P. 44), Madhya Pradesh High court decided that
“easement can be used only by the owner of the property”.
6. Attachment of easement to property- Easement is an attached
right with the land or property which is not related to the
person and it accompanies the property and transfer after
transfer of property.
7. Easement: Negative or positive- Easement may either be
positive or negative. The action of the dominant owner on the
servient owner of the property is positive and prohibiting the
owner of the spiritual property is a negative easement.
8. Right-in-rem of easement- It is a right-in-rem, which means
that this right is available not only against servitude owner but
also against the whole world. The dominant owner can file a
suit against the person in court if any person interferes in the
easement of the dominant owner.

Q. Define Mortgage. Discuss different kinds of Mortgage?

As per Section 58 of Transfer of Property Act, 1882 the following

words are defined

 Mortgage
A mortgage is the transfer of an interest in immovable property for
the purpose of securing the payment of money advanced, an existing
or future debt or the performance of an engagement which may give
rise to a pecuniary liability.

 Mortgagor and Mortgagee

The person who transfers the interest in an immovable property is
called the mortgagor.

The person to whom it is transferred is called the mortgagee.

  Mortgage Money
The principal money and interest of which payment is secured for
time being is called mortgage money.

 Mortgage Deed
The instrument by which the transfer is effected is called a mortgage
deed.

Mortgage
A mortgage is a transfer of an interest in immovable property and it
is given as a security for a loan. The ownership of an immovable
property remains with the mortgagor itself but some interest in the
property is transferred to the mortgagee who has given a loan.

Essential conditions of a mortgage:

1. There is a transfer of interest to the mortgagee.

2. The interest created in specific immovable property.
3. The mortgage should be supported by consideration.

Kinds of Mortgage
As per Section 58 of Transfer of Property, there are six kinds of
mortgages

Simple Mortgage

 Simple Mortgage is defined under Section 58(b) of Transfer

of Property Act, 1882.
 In a simple mortgage, the mortgagor does not transfer
immovable property to the mortgagee but agrees to pay the
mortgage money.
 The mortgagee agrees on a condition that in the event of not
paying the mortgage money the mortgagee has every right
 to sell the property and can use the proceeds of the sale and
such a transaction is called a simple mortgage.

Conditional Mortgage

 Mortgage by conditional sale is defined under Section 58(c)

of Transfer of Property Act, 1882.
 In this mortgagee places three conditions to the mortgagor,
and the mortgagee shall have the right to sell the property if:

1. mortgagor defaults in payment of mortgage money on a

certain date.
2. as soon as the payment is made by the mortgagor the sale
shall become void.
3. on the payment of money by the mortgagor, the property is
transferred and such a transaction is called a mortgage by
conditional sale.

Usufructuary Mortgage

 Usufructuary Mortgage is defined under Section 58(d) of

Transfer of Property Act, 1882.
 In this mortgage, the mortgagor delivers the possession of
the property to the mortgagee and authorises the mortgagee
to retain such property until the payment is made by the
mortgagor and further authorise him to receive the rent or
profit arising from such mortgaged property and to
appropriate the same instead of payment of interest. Such a
transaction is called a Usufructuary transaction.
English Mortgage

 English Mortgage is defined under Section 58(e) of Transfer

of Property Act, 1882.
 In this mortgage, the mortgagor transfers the property
absolutely to the mortgagee and binds himself that he will
repay the mortgage money on the specified date and lays
down a condition that on repayment of money mortgagee
shall re-transfer the property. Such a transaction is called an
English mortgage transaction.

Deposit of title-deeds

 Deposit of title -deeds are defined under Section 58(f) of

Transfer of Property Act, 1882.
 In this mortgage where a person is in Calcutta, Madras,
Bombay and in any other towns as specified by the state
government and the mortgagor delivers to a creditor or his
agent the documents of title of immovable property with an
intent to create security and then such a transaction is called
Deposits of title-deeds.

Anomalous Mortgage

 An Anomalous Mortgage is defined under Section 58(f) of

Transfer of Property Act, 1882.
 A mortgage which is not any one of the mortgages
mentioned above is called an anomalous mortgage.

OR
Section 58 (a) of the Transfer of Property Act states that a mortgage
is the transfer of an interest in the specific immovable property for
the purpose of securing the payment of money advanced or to be
advanced by way of loan, 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 of 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.

Unlike sale or gift, a mortgage is not the transfer of an absolute

interest in the property. In a mortgage, a right of possession and
enjoyment of the usufruct may not necessarily be given.

Kinds of Mortgage
The nature of right transferred in a mortgage depends upon the form
or kind of the mortgage. There are six kinds of mortgage:

a. Simple mortgage
Where, without delivering possession of the mortgaged property,
the mortgagor binds himself personally to pay the mortgage-money,
and agrees, expressly or impliedly, that, in the event of his failure to
pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold

and the proceeds of the sale to be applied, so far as may be

necessary, in payment of the mortgage money, the transaction is
called a simple mortgage and the mortgagee a simple mortgagee.

However, there is no transfer of possession of the property to the

mortgagee i.e. there is no transfer of ownership in a simple
mortgage. The mortgagee acquires only right to sale and that too
through the court. The mortgagee may also sue on the personal
covenant, in as much as the simple mortgagor binds himself to repay
b. Mortgage by conditional sale
Where the mortgagor ostensibly sells the mortgaged Property on
condition that on default of payment of the mortgage money on a
certain date the sale shall become absolute, or on condition that on
such payment being made the sale shall become void,

or on condition that on such payment being made the buyer shall

transfer the property to the seller, the transaction is called mortgage
by conditional sale and the mortgagee a mortgagee by conditional
sale.

The transaction shall be deemed to be a mortgage unless the

condition is embodied in the document which effects or purports to
affect the sale.

The word ‘ostensible’ means that it has an appearance of sale but is

really not a sale. The ostensible sale need not be accompanied with
possession.

In this form of mortgage, there is no personal liability on the part of

the mortgagor to pay the debt. The remedy of the mortgagee is by
foreclosure only.

c. Usufructuary mortgage
Where the mortgagor delivers possession or expressly or by
implication binds himself to deliver possession of the mortgaged
property to the mortgagee, and authorises him to retain such
possession until payment of the mortgage money,

and to receive the rents and profits accruing from the property or
any part of such rents and profits and to appropriate the same in lieu
of interest, or in payment of the mortgage money, or partly in lieu of
interest or partly in payment of the mortgage-money,
the transaction is called a usufructuary mortgage and the mortgagee
a usufructuary mortgagee

If the mortgagee is not in possession or if he loses such possession he

may sue to obtain possession and also mense profits; he may also
sue for mortgage money.

In a usufructuary mortgage, the mortgagee has the advantage to

repay himself.

d. English mortgage
Where the mortgagor binds himself to repay the mortgage money on
a certain date, and transfers the mortgaged property absolutely to
the mortgagee, but subject to a proviso that he will re-transfer it to
the mortgagor upon payment of the mortgage-money as agreed, the
transaction is called an English mortgage.

The word ‘absolutely’ emphasizes that the characteristics of a sale

are more pronounced in the case of an English mortgage but it does
not suggest that there is absolute transfer in the nature of a sale. An
absolute transfer can never be a mortgage. What really passes is only
an interest in the property and not the whole property.

e. Mortgage by deposit of title-deeds (Equitable Mortgage)

Where a person in any of the following towns, namely, the towns of
Calcutta, Madras, and Bombay, and in any other town which the
State Government concerned may, by notification in the Official
Gazette, specify in this behalf,

delivers to a creditor or his agent documents of title to immovable

property, with intent to create a security thereon, the transaction is
called a mortgage by deposit of title-deeds.
There is no writing or formalities required. The object of the
legislature in providing for this kind of mortgage is to give facility to
the mercantile communities. Physical delivery of documents by the
debtor to the creditor is not the only mode of deposit. There may be
a constructive delivery.

f. Anomalous mortgage
A mortgage which is not a simple mortgage, a mortgage by
conditional sale, a usufructuary mortgage, an English mortgage or a
mortgage by deposit of title-deeds within the meaning of this section
is called an anomalous mortgage.

In such a mortgage the possession may or may not be delivered. The

mortgagee’s remedy is by sale, and also foreclosure if the terms of
the mortgage permit it.

Sub Mortgage
A mortgage debt being an immovable property the mortgagee can
assign his interest in the mortgaged property. A mortgage by the
mortgagee of his interest under the original mortgage is called a sub
mortgage. A sub mortgagee is entitled to a decree for sale of the
mortgage rights of his mortgagor.

Rights and Liabilities of Mortgagor

At any time after the principal money has become due, the
mortgagor has a right, on payment or tender, at a proper time and
place, of the mortgage-money, to require the mortgagee-

(a) to deliver to the mortgagor the mortgage-deed and all documents

relating to the mortgaged property which are in the possession or
power of the mortgagee,
(b) where the mortgagee is in possession of the mortgaged property,
to deliver possession thereof to the mortgagor, and

(c) at the cost of the mortgagor either to re-transfer the mortgaged

property to him or to such third person as he may direct, or to
execute and (where the mortgage has been affected by a registered
instrument) to have registered an acknowledgement in writing that
any right in derogation of his interest transferred to the mortgagee
has been extinguished.

Provided that the right conferred by this section has not been
extinguished by act of the parties or by decree of a Court.

The right conferred by this section is called a right to redeem and a

suit to enforce it is called a suit for redemption.

Q. Define Gift. Discuss Essential elements of valid gift?

Section 122 of the transfer of property act , 1882 defines gift as

under :

"GIFT IS THE TRANSFER OF CERTAIN EXISTING MOVABLE OR

IMMOVABLE PROPERTY MADE VOLUNTARILY AND WITHOUT
CONSIDERATION, BY ONE PERSON, CALLED THE DONOR , TO
ANOTHER , CALLED THE DONEE , AND ACCEPTED BY OR ON BEHALF
OF THE DONEE .
According to the section 3 of the act IMMOVABLE
PROPERTY includes –
(1)Land
(2) Benefits to arise out of land , and
(3) Things attached to the earth .
There must be two living person i.e Donor and Donee .

DONOR: one who transfer the gift.

DONEE : One who accepts the gift .

ESSENTIAL ELEMENTS OF VALID GIFT

The essential of valid gift are Given below :

(1) There must be transfer of ownership,

(2) The property must be existing property,
(3) Transfer is without consideration,
(4) Acceptance of gift by the Donee.
(1) Transfer of ownership

To constitute a valid gift there must be transfer of ownership from

one party to another , without transfer of property there will be no
Gift , Gift is the transfer of ownership, i.e absolute interest.

During the Transfer the donor must intend to pass on all the rights
and liabilities in respect of property to donee.

(2) Existing property

Another important essential to constitute a valid gift , is the property

Which is the subject matter of gift , may either be movable or
immovable , it may be tangible or intangible , property may be of any
kind but two conditions are required :
(
a) The subject matter of the gift must be in existence at the date of
making of the
gift .
(b) The subject matter of the gift must be transferable within the
meaning of section 5 of the act .
3) NO CONSIDERATION

An essential feature of a gift is that it must be gratuitous . Transfer of

ownership must be without any consideration . Even a negligible
property or , very small sum of money given by transferee in
consideration of a transfer of ownership in a big property would
make the transaction either a sale or exchange. Property transferred
in consideration of love or affection is a transfer without
consideration , hence a gift .

(4) VOLUNTARILY

The transfer of property must be done voluntarily, the donor must

make the gift voluntarily .
Here "VOLUNTARILY" means that donor has made the gift by his own
free will and free consent ,the consent of the donor must be free .
The consent of the donor is free when he has complete freedom of
making the gift without any force , fraud , undue influence or
coercion .Where the force of undue influence has been exercised on
the donor , it cannot be said that the gift was made voluntarily.
(5) ACCEPTANCE OF GIFT

The last and most important essential to constitute a valid gift is the
Acceptance of gift by the Donee . The Donee may refuse the gift ,
e.g., when it is non - beneficial property or , onerous gift . The Donee
may refuse the offer of gift of such properties. Acceptance of the gift
is therefore necessary.
Where , donee is Minor or insane , the gift must be accepted on his
behalf by a competent person. .
Where , donee is a juristic person , the gift must be accepted by a
competent authority representing such legal person . When gift is
made to a deity , it may be accepted by its agent , e.g, the priest or
manager of the temple.
ast paragraph of this section of transfer of property act 1882 ,
provides that if donee dies before acceptance , the gift is void .

Conclusion
To constitute a transfer as a gift it must follow the provisions of the
Transfer of Property Act. This Act extensively defines the gift itself
and the circumstances of the transfer of such a gift. The gift, being a
transfer of the ownership rights, must be in possession and
ownership of the transferee and must be existing at the time of
making the transfer. The transferor must be competent to make such
transfer but the transferee may be any person. In case the transferee
is incompetent to contract, the acceptance of gift must be ratified by
a competent person on his/her behalf. Gift of future property is void.
Partial acceptance of prosperous gifts and rejection of onerous gifts
is not valid either. The acceptance of a gift entails the acceptance of
the benefits as well as the liabilities coupled with such a gift. A gift
may be revoked only by a mutual agreement on a condition by the
donor and the donee, or by rescinding the contract pertaining to
such gift. The Donations mortis causa and Hiba are the only two
kinds of gifts which do not follow the provisions of the Transfer of
Property Act.

Q. what do you understand by Transfer of property? Discuss the

elements of valid Transfer.

The Transfer of Property Act came into force on 1st July 1882. This
act regulates the transfer of property in the country. It contains
specific provisions regarding the constituents and conditions
attached to a transfer. The principal object of this act is to
characterize and revise the law relating to the transfer of property by
demonstrations of parties and not to transfer by the activity of law.
The term ‘transfer of property’ signifies a demonstration by which an
individual passes the property to at least one person, or himself and
at least one different person. The term person includes an individual,
or body of individual or association, or company. The term transfer is
defined with reference to the word “convey”. It is a process by which
something is made over to another.

There are many essentials or necessities requires for a valid transfer,

they are as follows:

The transfer must be between two or more living persons

Section 5 of the Transfer of Property Act, 1882 describes the first

essential of a valid transfer. The transfer of property must take place
between two or more persons who are living or it must take
place inter vivos. The person who transfers, the transferor, and the
person to whom the property is being transferred, the transferee,
must be the living entities on the date of transfer. The property can’t
be transferred to the person who is dead. Therefore, there shall be
an act of conveyance by some living person to constitute a transfer.

The property must be transferable

The phrase “property must be transferable” also denotes that some

types of properties are considered to be untransferable
under Section 6 of the said act. All the properties except mentioned
in Section 6 are considered transferable. There are eight exceptions
mentioned in the act:
1. An heir apparent: The likely possibility of a beneficiary
prevailing to the property of an intestate (Spes Successionis),
the possibility of a connection acquiring a heritage on the
passing of a kinsman, or some other remote chance of a
similar sort will be considered as untransferable. In this way,
the exchange of Spes Successionis is void ab initio.
2. Easement: An easement is a right of the owner or the
occupier of the land which he/she possesses for the
beneficial enjoyment of the land, to do or to continue doing
something, or to prevent and continue to prevent something
from being done, in or upon or in respect of certain other
and that is not his own. It cannot be transferred apart from
the dominant heritage. In Narsingh Sahai v. Bhagwan Sahai
(1909) it was held that the prohibition doesn’t touch upon
the creation of new easements.
3. A 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. This right
is a personal right of an individual and cannot be transferred
if he does so, then the same would be void.
4. Interest restricted to personal enjoyment: An interest in the
property restricted to personal enjoyment of the owner
cannot be transferred by him and if he does so then it would
be declared as void. A right to future maintenance, in
whatsoever manner arising, secured or determined can’t also
be transferred. The phrase “whatsoever manner arising” has
a very wide meaning and covers cases where the right has
been created under a will, compromise, or deed.
5. Mere right to sue: A right to sue is a personal right or an
individual right that only an aggrieved party can exercise and
hence is not transferable. It is not assignable to anyone.
6. Offices and Salaries: A public office and salary of a public
officer whether before or after it has become payable cannot
 be transferred. The term public office is not defined under
the act but in general terms, it means a person who is
appointed to discharge a public duty and in return receives a
monetary benefit in the form of salary which is not
transferable.
7. Stipend: Stipend allowed to naval, civil, military, and air force
pensioners of the government and political pensions are not
transferable. Only the stipend is not transferable not the gifts
or bonus by the government or an allowance made in lieu of
a presumed grant of lands, or grant of land in lieu of pension-
these things are transferable as interpreted by the judiciary
in several cases.
8. Opposed to the nature of interest: The property which is
opposed to the nature of interest is non-transferable.
Transfer for an unlawful object or consideration or opposed
to public policy is also not permissible. For example, a
transfer of property takes place and it is used as a brothel,
then it will not be considered as a valid transfer. Section 23
of the Indian Contract Act, 1872 provided that consideration
or object is unlawful if it is: forbidden by law; or is
fraudulent or immoral; or it defeats the provision of any law;
or is opposed to public policy; involves or implies injury to
the person or property of another.

Persons competent to transfer

Section 7 of the Transfer of Property Act, 1882 lays down as to who is

competent to transfer the property and if he/she is not eligible or
not competent then a valid transfer of property cannot take place.
Therefore a person who is competent to the person can validly
transfer the property if he is the owner of that property or he
possesses authority sustainable in law to transfer the same. The term
‘authority’ can be personal, under an agency or acquired under law
or under the direction or permission of the court. In order to be a
competent person to transfer the property one should have attained
the age of majority in Raja Balwant Singh v. Rao Maharaj Singh
(1920) case it was held that a transfer of property by minor is void.)
and should be of sound mind at the time of transferring the
property, also he should not be disqualified to transfer the property
under any law to which he is subject to. In Sadiq Ali Khan v. Jai
Kishore (1928) case, the privy council observed that a deed executed
by a minor was null and void. It was also observed that the law of
estoppel cannot be applied to a minor and a minor is not competent
to transfer yet a transfer to minor is valid.

It is mentioned that under Section 11 of the Indian Contract Act the

given provisions of the competency should be fulfilled in order to
transfer the property. As far as the transferee is concerned there is
no provision in any law concerning the competency. But, according
to Section 13 of the Act, he should be alive at the time of transfer
and creation of prior interest is required if the transfer is made to an
unborn person.

Methods of Transfer

Section 9 of the Transfer of Property Act, 1882 deals with the

method of transfer of property that can be made orally in every case
in which writing is not required expressly by the law. Under the said
act, these following transfers must be made in writing:

1. Transfer of every tangible property, reversion, or other

intangible things where its value is equal or more than 100
INR;
2. Mortgage of property irrespective of the amount of security;
3. All kinds of mortgages where the principal is equal to or
more than 100 INR;
4. Exchange;
 5. Gift of immovable property;
6. Lease of immovable property annually or for any term more
than a year;
7. When rent for more than 12 months is required in advance;
8. Transfer of actionable claim, that is, claim to any unsecured
debt or any interest in any immovable property which is not
in the possession of the claimant.

Must not have any conditions Restraining Alienation

Section 10 of the Transfer of Property Act, 1882 said that when a

property, subjected to a condition or limitation, is being transferred
restrains the transferee or any other person claiming under him from
parting with his interest in the property then the condition or
limitation is void except in the case of lease of the property where
the condition is beneficial of the transferor or those claiming under
him. These conditions restraining alienation are barred by the law; it
can not be encroached by anyone, not even by the transferor
through a private agreement as it is one of the basic rights of the
owner. Since it is the sole prerogative of the owner he is empowered
to sell his property any time he wants and to anyone. Restraints of
alienations can be in the following ways:

1. Restraining with respect to persons: Restraining the owner of

the property through a private agreement to transfer the
interest or the whole property only after obtaining the prior
permission or consent of a specific person would be void.
The condition that it can be transferred to a specific person
can be valid depending upon the facts of the case.
2. Restraining on transfer for a particular time: Restraining the
owner with a condition that the property would not be sold
within five or ten years or for any time period is totally void
unless it is for a shorter period and the transferor has a
 benefit with that condition such as an option of repurchase
as stipulated in the contract.
3. Restraining with respect to money: Restraining the owner
that the property can be sold only at a fixed price, or for no
consideration, or at a market price only, or at any
consideration deemed appropriate by the owner, but out of
sale proceeds, either something has to be paid to a specific
person or persons, or for a specific purpose, all these
conditions would be restraints on alienation through control
of money and would be void.

Rule against perpetuity

Section 14 of the Transfer of Property Act, 1882 features that the

exchange must be in opposition to the rule against perpetuity. The
literal meaning of the term perpetuity is endlessness, time
everlasting, eternity, or infinity. It alludes to the production of an
enthusiasm for the here and now which is to produce results after an
extremely prolonged stretch of time. No transfer of property can
happen or work to make an interest which is to occur after the
lifetime of at least one people living at the date of such transfer and
the minority of some individual who ought to be in presence at the
expiry of that period and to whom the interest made is to have a
place on the off chance that he accomplishes the age of majority.
This rule guarantees that one can’t defer the vesting of property in a
transferee past a specific limit.

Conclusion
These were the essentials required for the valid transfer of property
under the Act. If these conditions are not fulfilled then the transfer
will not be considered as a valid one or can be declared as void. This
condition is as similar to that of the validity of a contract as if the
essentials mentioned under the Indian Contract Act, 1872 then only
a contract will be declared as valid until then it is a void contract.
Even some of the essentials are similar to that of a valid contract
under the Indian Contract Act, 1872.

LLB December 2019

Q. In how many ways Ease can be created?

Modes of Acquisition of Easements

Express Grant
The easement can be acquired through express grant made by inserting the
clause of granting such a right in the deed of sale, mortgage or through any
other form of transfer. This involves expressing by the grantor of his clear
intention. If the value of the immovable property is Rs.100 or above then it
compulsory for it to be in writing and duly registered.

Implied Circumstances
Easementary right can be acquired in implied circumstances in the following
ways-

 Easement of Necessity
Section 13 of the act deals with this. This consists of the circumstances
where the owner or occupier cannot use his property without exercising the
right of easement over the servient heritage. Thus, absolute necessity is the
test and the convenience.

For example– X sells his land to Y for agricultural purpose. Here, Y cannot
access his land without passing through Z’s land (his neighbour). Thus, this
is an easement of necessity.

When a joint property is partitioned amongst various coparceners and if right

of easement over one share of the property is essential for the enjoyment of
the share of the other coparcener then latter shall be entitled to easement.
  Quasi Easements
In the case of a person transferring his property to another person then-

 If an easement is continuous, apparent and necessary to enjoy,

then in such a case the transferee shall be entitled to it,
 If such an easement is continuous, apparent and necessary to enjoy
the said property, the transferor has a right to such easement over
property transferred by him
 In case of partition of the property of the joint family, if an
easement is continuous, apparent and necessary to enjoy the share
of one coparcener over the other coparcener, then he is entitled to
such a right of easement.
Easements are quasi as those are arising out of circumstances,i.e. When
common properties are converted into tenements by way of sale, mortgage,
partition or through any other form of transfer. In such a case, there is an
implied grant of right of easement.

For example– P’s right attached to Q’s house to receive air and light
through a window without any obstruction by his neighbour. This is a
continuous.

 Prescriptive Easements
Section 15 provides for this type. Following are the requisites-

 Right must be definite and certain,

 Right must have been independently enjoyed without any
agreement with the servient owner,
 Must be enjoyed openly, peacefully and as of a right without any
interruption for a continuous period of 20 years and in respect of
any government land the period of non-interruption shall be 30
years.

 Customary Easements
An easement right can be acquired by virtue of a local custom. This is known
as customary easements. Section 18 of the Act provides for it. For example-
people living in a particular city or town having a right to bury the dead in a
particular area or riparian right to use water.
Q. Difference between Sale And Contract of sale.

Ans. A ‘Contract of Sale‘ is a type of contract whereby one party (seller)

either transfers the ownership of goods or agrees to transfer it for money to the
other party (buyer). A contract of sale can be a sale or an agreement to sell. In a
contract of sale, when there is an actual sale of goods, it is known
as Sale whereas if there is an intention to sell the goods at a certain time in
future or some conditions are satisfied, it is called an Agreement to sell.

Comparison Chart
BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

Meaning When in a contract of sale, When in a contract of sale the

the exchange of goods for parties to contract agree to
money consideration takes exchange the goods for a
place immediately, it is price at a future specified date
known as Sale. is known as an Agreement to
Sell.

Nature Absolute Conditional

Type of Contract Executed Contract Executory Contract

Transfer of risk Yes No

Title In sale, the title of goods In an agreement to sell, the

transfers to the buyer with title of goods remains with
the transfer of goods. the seller as there is no
transfer of goods.

Right to sell Buyer Seller

Consequences of Responsibility of buyer Responsibility of seller

 BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

subsequent loss or
damage to the goods

Tax VAT is charged at the time No tax is levied.

of sale.

Suit for breach of The buyer can claim Here the buyer has the right
contract by the seller damages from the seller to claim damages only.
and proprietary remedy
from the party to whom
the goods are sold.

Right of unpaid seller Right to sue for the price. Right to sue for damages.

Definition of Sale

A sale is a type of contract in which the seller transfers the ownership of goods
to the buyer for a money consideration. Here the relationship amidst the seller
and buyer is of creditor and debtor. It is the result of an agreement to sell when
the conditions are fulfilled and the specified time is over.

Difference Between Sale and Agreement to

sell
Last updated on July 26, 2018 by Surbhi S
A ‘Contract of Sale‘ is a type of contract whereby one party (seller) either
transfers the ownership of goods or agrees to transfer it for money to the other
party (buyer). A contract of sale can be a sale or an agreement to sell. In a
contract of sale, when there is an actual sale of goods, it is known
as Sale whereas if there is an intention to sell the goods at a certain time in
future or some conditions are satisfied, it is called an Agreement to sell.

Both sale and agreement to sell are types of contract, wherein the former is an
executed contract whereas the latter represents an executory contract. Many law
students get confused amidst these two terms, but these are not one and the
same. Here, in the article given below, we’ve explained the difference between
sale and agreement to sell, check it out.

Content: Sale Vs Agreement to sell

1. Comparison Chart
2. Definition
3. Key Differences
4. Conclusion

Comparison Chart
BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

Meaning When in a contract of sale, the When in a contract of sale the parties to
exchange of goods for money contract agree to exchange the goods
consideration takes place for a price at a future specified date is
immediately, it is known as Sale. known as an Agreement to Sell.

Nature Absolute Conditional

Type of Contract Executed Contract Executory Contract

 BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

Transfer of risk Yes No

Title In sale, the title of goods transfers In an agreement to sell, the title of
to the buyer with the transfer of goods remains with the seller as there is
goods. no transfer of goods.

Right to sell Buyer Seller

Consequences of Responsibility of buyer Responsibility of seller

subsequent loss or
damage to the goods

Tax VAT is charged at the time of sale. No tax is levied.

Suit for breach of The buyer can claim damages from Here the buyer has the right to claim
contract by the seller the seller and proprietary remedy damages only.
from the party to whom the goods
are sold.

Right of unpaid seller Right to sue for the price. Right to sue for damages.

Definition of Sale

A sale is a type of contract in which the seller transfers the ownership of goods
to the buyer for a money consideration. Here the relationship amidst the seller
and buyer is of creditor and debtor. It is the result of an agreement to sell when
the conditions are fulfilled and the specified time is over.
 Types of Sale

The following are the essential conditions regarding Sale:

1. There must be at least two parties; one is the buyer, and other is the seller.
2. The subject matter of the sale is the goods.
3. Payment should be made in the country’s legal currency.
4. The goods should pass from seller to buyer.
5. All the necessary conditions of a valid contract should be present like free
consent, consideration, a lawful object, capacity of parties, etc.

If the goods are being sold and the property is transferred to the buyer,
but the seller is not paid. Then, the seller can go to the court and file a suit
against the buyer for the damages and the price too. On the other hand, if
the goods are not delivered to the buyer then he can also sue the seller for
damages.

Definition of Agreement to Sell

An agreement to sell is also a contract of sale of goods, in which the

seller agrees to transfer goods to the buyer for a price at a later date or
after the fulfilment of a condition.

When there is a willingness of the both the parties to constitute a sale i.e. the
buyer agrees to buy, and the seller is ready to sell the goods for monetary
value. In an agreement to sell the performance of the contract is done at a
future date, i.e. when the time elapses or when the necessary conditions are
satisfied. After the contract is executed, it becomes a valid sale. All the
necessary conditions required at the time of sale should exist in the case of
an agreement to sell too.
 If the seller rescinds the contract, then the buyer can claim damages for the
breach of contract. On the other hand, the unpaid seller can also sue the
buyer for damages.

Key Differences Between Sale and Agreement to Sell

The following are the major differences between sale and agreement to sell:

1. When the vendor sells goods to the customer for a price, and the transfer
of goods from the vendor to the customer takes place at the same time,
then it is known as Sale. When the seller agrees to sell the goods to the
buyer at a future specified date or after the necessary conditions are
fulfilled then it is known as Agreement to sell.
2. The nature of sale is absolute while an agreement to sell is conditional.
3. A contract of sale is an example of Executed Contract whereas the
Agreement to Sell is an example of Executory Contract.
4. Risk and rewards are transferred with the transfer of goods to the buyer in
Sale. On the other hand, risk and rewards are not transferred as the goods
are still in possession of the seller.
5. If the goods are lost or damaged subsequently, then in the case of sale it is
the liability of the buyer, but if we talk about an agreement to sell, it is the
liability of the seller.
6. Tax is imposed at the time of sale, not at the time of agreement to sell.
7. In the case of a sale, the right to sell the goods is in the hands of the
buyer. Conversely, in agreement to sell, the seller has the right to sell the
goods.

Conclusion

Under Indian Sale of Goods Act 1930, section 4 (3) deals with the contract of
sale and agreement to sell, where it has been clarified that the agreement to sell
also come under sale. However, there is a distinction between these two terms
which we discussed above.

Q. Can a gift be made for the benefit of unborn person. What are
the rules regarding it?

The provisions of Transfer of Property Act, 1882 in general do not

allow the transfer of property directly to an unborn person.
Section 13 of the Transfer of Property Act, 1882 provides that when
for the transfer of property, an interest therein is created for the
benefit of an unborn person at the date of the transfer, a prior
interest is to be created in respect of the same transfer and the
interest created for the benefit of such person shall not take effect,
unless it extends to the whole of the remaining interest of the
person transferring the property in the property to be transferred.

Thus, in order to transfer a property for the benefit of an unborn

person on the date of the transfer, it is imperative that the property
must first be transferred by the mechanism of trusts in favour of
some person living other than the inborn person on the date of
transfer. In simpler terms, it can be said that the immovable property
must vest in some living person between the date of the transfer and
the coming into existence of the unborn person as the property
cannot be transferred directly in favour of an unborn person.

In other words it can be said that the interest of the unborn person
must in all cases be preceded by a prior interest. Moreover,when an
interest is created in favour of an unborn person, such interest shall
take effect only if it extends to the whole of the remaining interest of
the person transferring the property in the property, thereby making
it impossible to confer an estate for life on an unborn person. The
interest in favour of the unborn person shall constitute all of the
entire remaining interest in the estate. The underlying principle in
section 13 is that a person disposing of property to another person
shall not cause obstruction in the free disposition of that property in
the hands of more than one generation. Section 13 does not apply
restrictions on the successive interest being created in favour of
several persons living at the time of operation of the transfer. What
is provided as a restriction under section 13 of the Transfer of
Property Act, 1882, is the grant of interest, limited by time or
otherwise, to an unborn person.
Thus, it can be said that if the persons for whose benefit the transfer
is to take effect are living, any number of successive life interests can
be created in their favour. However, an important point to note here
is that if the interest is to be created in favour of persons who have
yet not taken birth, then in that case absolute interest must be
granted to such unborn persons.

Essential Elements of Section 13

The essential elements of section 13 have been discussed below.
They are as follows:

1. No Direct Transfer

A transfer cannot be directly made to an unborn person. Such a

transfer can only be brought into existence by the mechanism of
trusts. It is a cardinal principle of property law that every property
will have an owner. Accordingly, if a transfer of property is made to
an unborn person, it will lead to a scenario wherein the property will
remain without an owner from the date of transfer of property till
the date the unborn person comes into existence.

2. Prior Interest

If the circumstances are such that there is no creation of trust, then

in that case the estate must in some other person between the date
of transfer and the date when the unborn person comes into
existence.In simpler words we can say that the interest in favour of
an unborn person must always be preceded by a prior interest
created in favour of a living person.
3. Absolute Interest

The entire property must be transferred to the unborn person. The

transfer to an unborn person must be absolute and there should be
no further transfer from him to any other person.An interest which
remains only for the lifetime cannot be conferred on an unborn
person. Under the English law, an unborn person can be conferred
an estate only for his lifetime. This concept of English law, however,
is subject to a restriction known as the rule of double possibilities.
This rule was recognised in the case of Whitby Mitchell. The rule
states that life interest to an unborn person should not be
transferred as doing so will give rise to existence of two possibilities.
The first possibility will be the birth of the unborn person to whom
the life estate was to be transferred and the second possibility will
be the coming into existence of issues of that unborn persons. Thus,
the transfer of property to an unborn person can be permitted only if
the absolute interest is transferred and not just the life estate.

Illustration

“A” owns a property. He transfers it to “B” in trust for him and his
intended wife successively for their lives. After the death of the
survivor, it is to be transferred to the eldest son of the intended
marriage for his life, and after his death, it is to be transferred to A’s
second son. The interest so created for the benefit of the eldest son
does not take effect because it does not extend to the whole of A’s
remaining interest in the property.

When an Unborn Person Acquires Vested Interest

The provisions of section 20 of the Transfer of Property Act, 1882
mention the concept that in what circumstances unborn person
acquires vested interest. Unborn person may not be able to enjoy
the possession of property as soon as he is born but he may,
however, acquire a vested interest in the property since his birth.
Where, on a transfer of immovable property interest is created for
the benefit of an unborn person, he acquires upon his birth, a vested
interest, although he may not be entitled to the enjoyment thereof
immediately on his birth.The mentioned provision however may be
waived off if the terms of the agreement mention a contrary clause.

The section lays down that an interest created for the benefit of an
unborn person vests in that unborn person as soon as he is born.
Such interest remains vested interest even though he may not be
entitled to the enjoyment thereof immediately on his birth.

For example, if “A” transfers an estate to trustees for the benefit of

A’s unborn son with a direction to accumulate the income of such
estate for a period of ten years from the date of the birth of A’s son
and then to hand over the funds to him. A’s unborn son acquires a
vested interest upon his birth, although he is not entitled to take and
enjoy the income of the property for a period of ten years.

Views of the Apex Court in Reference to the Transfer to Unborn

Person
The Supreme Court of India in various cases from time to time has
interpreted the provisions of the Transfer of Property Act,1882 in
respect of the transfer of property done for the benefit of unborn
persons. In the famous case of Girjesh Dutt vs. Datadin, the Apex
Court made important observations. Facts of the case enumerate
that “A” made a gift of her properties to “B”, who was her nephew’s
daughter. The gift made by A was made for the life of B and then to
B’s daughter without power of alienation and if there was no heir of
B, whether male or female, then to A’s nephew. B died without
having any children. Thus considering the facts of the case, the court
held that the gift in favour of unborn daughters was invalid
under Section 13 as the gift was a limited interest and also subject to
the prior interest in favour of B.
Another case related to this concept is of Raja Bajrang Bahadur Singh
v. Thakurdin Bhakhtrey Kuer. In the instant case the Apex Court had
observed that no interest can be created in favour of an unborn
person but when the gift is made to a class or series of persons,
some of whom are in existence and some are non existent, it does
not fail completely, it is valid with respect to the persons who exist at
the time of testator’s death and is invalid with respect to the rest.

Conclusion
Thus from the above discussion it is clear that the transfer of
property can be executed in respect of unborn persons. Though, the
transfer cannot be operated directly but it can be executed indirectly
by the machinery of trusts. In other words, the interest in favour of
the unborn person shall constitute the entire interest in that
particular immovable property. The underlying fundamental
principle enshrined under section 13 of the Transfer of Property Act
is that a person disposing off property to another person shall not
create hurdles for the free disposition of that property in the hands
of one or more generations.

Thus, for the validity of a transfer in favour of an unborn person, it is

important that the whole of the remaining interest of the person
transferring the property should be conveyed to the unborn person.
Moreover, as soon as the transfer of property comes into operation,
the vested interest is also transferred to the unborn person. The
transfer of immovable property to unborn persons can, thus take
effect only according to the provisions discussed above. Else, the
transfer will be declared as void.

Q. Duration of certain leases in absence of written contract or local usage.

Section106. (1) In the absence of a contract or local law or usage to the contrary, a lease
of immovable property for agricultural or manufacturing purposes shall be deemed to be a
lease from year to year, terminable, on the part of either lessor or lessee, by six months’
notice; and a lease of immovable property for any other purpose shall be deemed to be a
lease from month to month, terminable, on the part of either lessor or lessee, by fifteen
days’ notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the
period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the
period mentioned therein falls short of the period specified under that sub-section, where
a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the
person giving it, and either be sent by post to the party who is intended to be bound by it
or be tendered or delivered personally to such party, or to one of his family or servants at
his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous
part of the property.]

Q. What is Lis Pendense ? Essential conditions for applying this

doctrine.
The doctrine of lis pendens is incorporated in the Transfer of
Property Act, 1882, under Section 52. ‘Lis’ means litigation and
‘pendens’ means pending, literally signifying pending litigation.
Any action or proceeding which is pending in any court of law is
said to be lis pendens.

The principle behind this doctrine is that nothing new should be

introduced into a litigation that is pending, i.e. to maintain the
status quo, to abstain from doing anything which may affect any
party to the litigation.

In terms of property law, it implies that no new interest in respect

of a property should be introduced, if that property is the subject-
matter of a litigation. If a new interest or title is created in that
property, that would amount to a transfer of that property. The
doctrine of lis pendens prohibits the transfer of any property
under litigation.

The doctrine of lis pendens has its origin in the case

of Bellamy v. Sabine[1]
Following are the essentials of Doctrine of Lis Pendens as
described in section 52:

1. There must be a pendency of a suit or proceeding.

2. The suit/proceeding must be pending in a court which
has the jurisdiction to try it.
3. A right to immovable property is either directly or
indirectly involved in the suit/proceeding.
4. The immovable property in dispute is transferred/dealt
with by any party to the suit.
5. Such transfer/dealing affects the rights of the other
party(s) involved in the suit/proceeding.
Application of Doctrine of Lis Pendens
The doctrine of lis pendens is not applicable where the suit is
collusive i.e. instituted with mala fide intention. This means that
there is no actual dispute but the suit is filed for some evil
motive, for example, defrauding a third party.

Conclusion:
:

The doctrine of lis pendens is in consonance with public policy,

and with the principles of justice, equity and good conscience.
The provision under section 52 bars any party to the suit to take
decisions of alienation of property themselves and interrupt the
working of the court. It further ensures that no person’s right is
curbed due to another’s will.

The general rule of the Transfer of Property Act is that any property can be
transferred whether movable or immovable. Section 6 states that property of
any kind can be transferred, except as otherwise provided by this act or by
any other act for the time being in force. It lays down the exceptions as:

1. The chance of heir-apparent succeeding to an estate, the chance of

a relation of obtaining a legacy on the death of a kinsman, or any
other mere possibility of a like nature cannot be transferred.
 2. A mere right of re-entry for any breach of condition and cannot be
transferred to anyone except the owner of the property who is
thereby affected.
3. An easement cannot be transferred apart from dominant heritage.
4. All interest in property restricted in its employment to the owner
personally cannot be transferred by him. Even a right to future
maintenance, in whatever manner arising, secured or determined
cannot be transferred.
5. A mere right to sue cannot be transferred.
6. A public officer cannot be transferred nor his salary, whether before
or after it becomes payable.
7. The stipends allowed to the military of the naval, air force, and
government and political pensions cannot be transferred.
8. No transfer can be made, in so far as it is opposed to the nature of
the interest thereby affected or for an unlawful object and
consideration under Section 23 of the Indian Contract Act, 1872 or
to a person legally qualified to be a transferee.

Case laws

Sheshammal v. Hasan Khani Rawther

In this case, it was held that an heir who received an advantage for giving up
his future right to property, then the heir could not be allowed the benefit of
the doctrine of spes succession.

C. Mohammed v. Ananthachari
In this case, the court held that there cannot be an easement by prescription
if the person admits that the property belongs to him. The court defined
easement as where an owner of the property has the right over the way of
the labs for another purpose which is connected with the beneficial use of his
own land.

Conclusion
It can be concluded that under the Transfer of Property Act, the benefits,
gains, maintenance, etc are not transferable as these things are personal
benefits that the person derives and he cannot transfer his benefit to another
person. If he does so that transfer becomes invalid.
Section 6 of the Transfer of Property Act, 1882 lays down the exceptions to
the general rule. Property and interest in property forms as a general rule
which is transferable. The transferability of the property is based on the
maxim ‘alienation rei praefertur juri accrescendi’, which means law favours
alienation to accumulation. Hence, it is stated that any actions that are made
to interfere with the power of the owner to alienate his interest in the
property are not considered in favour of the law.

Section 6(a) : Spes Succession

This section states that:

 The chance of heir-apparent succeeding to an estate cannot be

transferred.
 The chance of a relation obtaining a legacy on the death of kinsman
cannot be transferred.
 Any mere possibility of a like nature cannot be transferred.

Example 1
A is the owner of a property, if he dies his son B will get the property as he is
the legal heir and here it can be said that B is the heir-apparent. But this
same property cannot be transferred to B during the lifetime of A.

Example 2
Son B dies during the lifetime of his father A, if during the lifetime of his
father, he transfers the property without his father’s consent then the
transfer would be void ab initio and is prohibited by law.

Section 6(b) : Right of re-entry

This clause states that the right to resume the possession of the land which
could be given to some other person for a certain period. For example, lease
cases. As per this, if there is a mere right of re-right for breach of a
condition, it later cannot be transferred to anyone except the owner of the
property who is thereby affected.

Example
A grants a lease of land to B for 3 years. At the expiry of 3 years, if he
transfers the right of re-right to C then this transfer shall be invalid.
Section 6(c) : Easement
An easement means a right that the owner or the occupier of certain land
has in his possession for the beneficial enjoyment of the said land. It can be
said that the right to use or restrict the use of the property of some other
person. An easement cannot be transferred except the dominant heritage.

Example
M, the owner of the house has the right of way over their adjoining land with
N. Hence, M cannot transfer his right without transferring the house.

 In the case of Sital v. Delanney, the court held that an easement

cannot be transferred unless the dominant heritage right is attached
to it.

Section 6(d) : Restricted interest

A person cannot transfer anything that is interest restricted in the enjoyment
to him. Restricted rights are personal and cannot be transferred and if such
transfer happens then it would be void. The following types of interest are
not considered transferable, such are:

 Service tenure;
 A right of pre-emption;
 Emoluments;
 Religious office.

Example
The right of the priest to receive the offering. This right is his restricted
interest and he cannot transfer this to another person who may be a doctor
by profession.

Section 6(dd) : Right to future maintenance

This clause states that the right to future maintenance whatsoever cannot be
transferred in any manner. This is because the right is solely a personal
benefit given to a person and so he cannot transfer his benefit to someone
else.
Example
A woman who receives maintenance from her husband under a decree or
award or order.

 In the case of Dhupnath Upadhya v. Ramacharit, it was held that

where the property is given as maintenance, then the person cannot
transfer the property during her lifetime. A right of maintenance is a
personal right and cannot be taken away.

Section 6(e) : Right to sue

According to this clause, a mere right to sue cannot be transferred. A right to
sue cannot be transferred as the transferee acquires no interest in the
subject matter of the suit as much as the owner of the property would.

Example
X published defamatory statements against Y and Y filed a suit against X. But
Y cannot transfer his right to Z to recover damages for him. If Y transfers his
right to Z then this transfer will be held void.

Section 6(f) : Public Office

A public office cannot be transferred and so the salary of the public officer,
whether before or after it becomes payable. A public officer is a person who
is appointed to discharge his duty towards the public and for doing such an
Act he is paid in the form of salary. This salary is a personal benefit to him
that cannot be transferred.

Section 6(g) : Pensions

Generally, pensions are the monetary value like a salary, given to a person
timely who ceased to be a government employee. This pension is his benefit
which he cannot transfer just like his salary.

 In Saundariya Bai v. Union of India, it was held by the court that

pension is not transferable and as long as such is in the hands of the
government.
Section 6(h) : Nature of interest
According to this section, the Transfer should not affect the nature of the
interest of anyone. For example, the public or religious uses or services
cannot be transferred. If any transfer whose object is unlawful or has
unlawful consideration is not permissible under this section. Also if the
property is transferred to someone who is disqualified legally to be a
transferee then such transfer is not valid.

Example
X, Y, and Z entered into an agreement for the division of gains among them
which they acquired by fraud. Hence, this agreement is void as the
consideration is unlawful.

Mortgage under Transfer of Property Act,

1882
Section 58 to 104 of the Transfer of Property Act, 1882 deals with mortgages
and charges.

Below mentioned sections are important sections.

As per Section 58 of Transfer of Property Act, 1882 the following words are
defined

 Mortgage
A mortgage is the transfer of an interest in immovable property for the
purpose of securing the payment of money advanced, an existing or future
debt or the performance of an engagement which may give rise to a
pecuniary liability.

 Mortgagor and Mortgagee

The person who transfers the interest in an immovable property is called the
mortgagor.
The person to whom it is transferred is called the mortgagee.

 Mortgage Money
The principal money and interest of which payment is secured for time being
is called mortgage money.

 Mortgage Deed
The instrument by which the transfer is effected is called a mortgage deed.

Mortgage
A mortgage is a transfer of an interest in immovable property and it is given
as a security for a loan. The ownership of an immovable property remains
with the mortgagor itself but some interest in the property is transferred to
the mortgagee who has given a loan.

Essential conditions of a mortgage:

1. There is a transfer of interest to the mortgagee.

2. The interest created in specific immovable property.
3. The mortgage should be supported by consideration.

Kinds of Mortgage
As per Section 58 of Transfer of Property, there are six kinds of mortgages

Simple Mortgage
 Simple Mortgage is defined under Section 58(b) of Transfer of
Property Act, 1882.
 In a simple mortgage, the mortgagor does not transfer immovable
property to the mortgagee but agrees to pay the mortgage money.
 The mortgagee agrees on a condition that in the event of not paying
the mortgage money the mortgagee has every right to sell the
property and can use the proceeds of the sale and such a
transaction is called a simple mortgage.

Conditional Mortgage
 Mortgage by conditional sale is defined under Section 58(c) of
Transfer of Property Act, 1882.
  In this mortgagee places three conditions to the mortgagor, and the
mortgagee shall have the right to sell the property if:

1. mortgagor defaults in payment of mortgage money on a certain

date.
2. as soon as the payment is made by the mortgagor the sale shall
become void.
3. on the payment of money by the mortgagor, the property is
transferred and such a transaction is called a mortgage by
conditional sale.

Usufructuary Mortgage
 Usufructuary Mortgage is defined under Section 58(d) of Transfer of
Property Act, 1882.
 In this mortgage, the mortgagor delivers the possession of the
property to the mortgagee and authorises the mortgagee to retain
such property until the payment is made by the mortgagor and
further authorise him to receive the rent or profit arising from such
mortgaged property and to appropriate the same instead of
payment of interest. Such a transaction is called a Usufructuary
transaction.

English Mortgage
 English Mortgage is defined under Section 58(e) of Transfer of
Property Act, 1882.
 In this mortgage, the mortgagor transfers the property absolutely to
the mortgagee and binds himself that he will repay the mortgage
money on the specified date and lays down a condition that on
repayment of money mortgagee shall re-transfer the property. Such
a transaction is called an English mortgage transaction.

Deposit of title-deeds
 Deposit of title -deeds are defined under Section 58(f) of Transfer of
Property Act, 1882.
 In this mortgage where a person is in Calcutta, Madras, Bombay
and in any other towns as specified by the state government and
the mortgagor delivers to a creditor or his agent the documents of
title of immovable property with an intent to create security and
then such a transaction is called Deposits of title-deeds.
Anomalous Mortgage
 An Anomalous Mortgage is defined under Section 58(f) of Transfer
of Property Act, 1882.
 A mortgage which is not any one of the mortgages mentioned above
is called an anomalous mortgage.

Q. Does the doctrine of part performance transfer the full

right of ownership to the transfree.Elaborate.

Doctrine of Part Performance of Contract

Doctrine of Part Performance of Contract is contained in Section 53-

A of the Transfer of Property Act, 1882 (hereinafter referred to as
‘TPA’). Section 53-A of the TPA was added to the statute book in the
year 1929 and is a modified form of the equity principle of part
performance which got developed in England in the case
of: Elizabeth Maddison V/s John Alderson, (1883) 8 App. Cases 467.
The following postulates are sine qua non for basing a claim on
Section 53-A of the TPA:

1. There must be a contract to transfer for consideration any

immovable property.
2. The contract must be in writing signed by the transferor, or
by someone on his behalf.
 3. The writing must be in such words from which the terms
necessary to construe the transfer can be ascertained.
4. The transferee must in part performance of the contract take
possession of the property, or, of any part thereof.
5. The transferee must have done some act in furtherance of
the contract.
6. The transferee must have performed or be willing to perform
his part of the contract.
It is settled law that Section 53-A of the TPA confers no right on a
party who was not willing to perform his part of the contract. A
transferee has to prove that he was honestly ready and willing to
perform his part under the contract.

In the matter of: WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr.
O.P. Kohli & Ors, CS (OS) No. 2128/2015, High Court of Delhi, Date of
Decision: 03.08.2015 (Coram: Valmiki Mehta, J.), it was held that:

That by virtue of the amendment brought about to Section 53-A of

the TPA with effect from 24.09.2001 by the Act 48 of 2001, an
Agreement to Sell in the nature of part performance cannot create
rights unless the agreement is registered and stamped at 90 percent
of the duty as of the sale deed as per Article 23-A of the Schedule I of
the Indian Stamp Act, 1899 as applicable to Delhi which was
accordingly amended by the Act 48 of 2001.

A power of attorney which effectively gives ownership rights of a

property by allowing the attorney to sell the immovable property by
virtue of Article 48 (f) of the Indian Stamp Act as applicable to Delhi
will have to have the stamp duty as a conveyance deed as per Article
23 of the Indian Stamp Act for the amount of consideration.

Summarizing the position of law, the Hon’ble High Court of Delhi

ruled as under:
“…7. In view of the aforesaid settled position of law, this suit is not
maintainable by virtue of Section 53-A of the Transfer of Property
Act read with the amended Article 23-A of the Indian Stamp Act as
applicable to Delhi as the Agreement to Sell is unregistered and
unstamped and the Power of Attorney besides not entailing the
plaintiff to indirectly achieve what cannot be directly achieved is
also not stamped on the value of the conveyance deed as required
by Article 48 (f) of the Indian Stamp Act as applicable to Delhi…”

It is important to note that Article 48 (f) of the Indian Stamp Act as

applicable to Delhi states that power of attorney, when given for
consideration and authorizing the attorney to sell any immoveable
property, the proper stamp duty to be paid, is the stamp duty as
levied on conveyance deed for the amount of consideration.

Therefore, the necessary corollary is that, if a power of attorney is

executed by X in favour of Y, and X and Y, both are relatives and the
purpose of execution of the power of attorney is grant of authority
by X to Y to sell of property owned by X. The contents of Article 48 (f)
of the Indian Stamp Act as applicable to Delhi would not be
applicable because here the power of attorney is not executed for
consideration, X and Y being relatives. So, here the power of attorney
needs to be stamped at Rs. 50/- only as per the Indian Stamp Act as
applicable to Delhi.

Q. What is conditional Transfer. How many Types of

conditions are recognised under TPA?

Section 25 of the Transfer of Property Act, 1882 provides for

Conditional Transfer. It means that any transfer that happens on the
fulfilment of a condition that is imposed on the other party for the
transfer of property. For example, A agrees to transfer his property
to B if he gets selected for a job. The requirement of A for B to get a
job is called a condition.

For any kind of a conditional transfer to be valid, the condition that is

imposed should not be:

1. Prohibited by law,
2. Should not be an act that involves fraudulent acts,
3. Should not be any act that is impossible,
4. Should not be an act that is termed as violative of public
policy,
5. Should not be immoral,
6. Any act that incurs any harm to any person or his property.
For example, X transfers a property ‘B’ to Y stating that he shall
murder Z as a condition for the transfer. Such transfer is void as the
condition is prohibited by law.

Types of Conditions on Transfer

There are three specific types of conditions that are imposed in a
transfer of property and there are some more types provided. All
these conditions should also satisfy all the requirements of a
condition as mentioned in Section 25 of the Transfer of Property Act,
1882.

Condition Precedent

It is given in Section 26 of the Transfer of Property Act, 1882. Any

condition that is required to be fulfilled before the transfer of any
property is called a condition precedent. This condition is not to be
strictly followed and the transfer can take place even when there has
been substantial compliance of the condition. For example, A is
ready to transfer his property to B on the condition that he needs to
take the consent of X, Y and Z before marrying. Z dies and afterward,
B takes the consent of X and Y so the transfer can take place as there
has been substantial compliance. These facts were from a case
of Dawson v. Oliver-Massey (1).

In the landmark case of Wilkinson v. Wilkinson (2), the condition

where one party was required to desert her husband for the transfer
to go through, this was held by the court as invalid as it was against
public policy.

Condition Subsequent

It is given in Section 29 of the Transfer of Property Act, 1882. Any

condition that is required to be fulfilled after the transfer of any
property is called condition subsequent. This condition is to be
strictly complied with and the transfer will happen only after the
completion of such condition. For example, A transfers any property
‘X’ to B on the condition that he has to score above 75 percent in his
university exams. If B fails to achieve 75 percent marks then the
transfer will break down and the property will revert back to A.

Although it is an essential requirement that the condition needs to

lawful and if it is not then the condition will be held as void and the
transfer will not break down and will be finalized. For example, A
transfers the property to B on the condition that he shall murder C.
This condition is void and hence transfer will go through and the
property will be kept by B.

Condition Collateral

Any condition that is required to be fulfilled simultaneously after the

transfer of any property is called condition collateral. It needs to be
strictly followed otherwise the transfer will break down. For
example, A transfers property ‘X’ to B on the condition that he shall
maintain A’s wife C for a period of 10 years. If B complies with it and
maintains C, the transfer will be valid and the property will be in the
possession of B.

Also it has been recently clarified by the Hon’ble Supreme Court in a

case in 2018, in case of a conditional gift where there was no recital
of acceptance and no proof or any sign of acceptance. If the
possession of that gift is with the donor for his lifetime and it is not
completed during his lifetime. The deed of gift might be cancelled at
the option of the donor as it has not violated any principles required
in a valid transfer of property and the donor is within his rights to
cancel any gift deed of such kind.

Other Types of Conditions

Section 27 of the Transfer of Property Act, 1882 provides for any

transfer to any other person if the first transfer fails. For example, A
transfers a car to B on condition that he shall transfer his bike to C, if
he does not the car shall go to D. So if B does not transfer his bike to
C, the car shall go to D on failure of ‘prior disposition’ as said in the
section.

It should be noticed that the condition on the first transfer was valid
otherwise, the subsequent interest or transfer also fails. Only when
the valid condition is not fulfilled or ‘shall fail’ then only the
subsequent transfer takes effect.

The Doctrine of Acceleration comes into the picture here, it is based

on the principle that one property should be passed on to some
other person if the first condition fails as if the property was never
vested in him. In the case of Ajudhia v. Rakhman Kaur (3), where the
property when not registered in the name of the mother because of
a local act and she could not have received the gift, the property was
accelerated to the children as a gift.
There is an exception to this section which is when it is a situation of
a transfer in form of a gift, doctrine of acceleration does not apply
unless the first transfer fails in a particular specified manner only.

Section 28 of the Transfer of Property Act, 1882 provides for any

subsequent transfer that takes place on not happening of a specified
event.

Conditional Limitation is something that is applied here and it affects

any ulterior disposition and if a vested property involves any
condition that does not happen, it takes place and property is
transferred to the ulterior disposition which is the ultimate
beneficiary.

This section is subject to rules which are present in the sections

10,12,21,22,23,24,25 and 27 of the Transfer of Property Act,1882.

For example in Contingent interest which is mentioned in Section 21

of the Transfer of Property Act, 1882 when the condition is put that
A’s land which is transferred to B will be transferred to C if B dies.
Hence the interests created in C is ulterior transfer. The requirement
here also is that the conditions need to be lawful and satisfy all other
requirements in Section 25.

This event is a condition of defeasance i.e. the act of making

something null and void. The only exception is where a person is
vested with an absolute interest and thereafter to a person. The
interest for the third person is on termination of the person vested
with absolute interest and not on defeasance.

Section 30 of the Transfer of Property Act, 1882 provides that any

transfer will not be affected by the invalidity of the ulterior
disposition, which means that is the subsequent transaction as it is
rendered void because of some default, then the first transaction will
not be held invalid because of it.
For example if X transfers land to Y and then, after his marriage, life
interest to his male offspring. As the transfer to the male offspring is
not valid as per Section 13 of the Transfer of Property Act, 1882
which prohibits any life interest created in favour of unborn. The
substance of Section 30 provides that the transfer to B will not be
affected even when the ulterior disposition (transfer to unborn son)
is not valid.

Section 31 of the Transfer of Property Act, 1882 states that any

transfer where the condition of happening of an event or not
happening of an event takes place is applied, the transfer shall cease
to have an effect. The condition mentioned in this section is a
condition subsequent and not a conditional limitation which is in
favour of any third party. This condition is given in a negative sense,
as the transferor prescribes when the transfer shall cease to have
effect.

For example, A can put a condition on B to plant a tree and then the
transfer will have an effect. If B plants, then he will get the property.

In the case of Ambika Charan v. Sasitara (4), it was held that even
condition collateral is a valid condition under the application of
Section 31 and in this case, one party was required to live at a
particular residence and as long as this condition is fulfilled, the
transfer shall continue to have an effect.

Even where the condition where there is a prescribed penalty, it can

be extracted by way of compensation, for example for forfeiting an
estate, compensation can be demanded.

Section 32 of the Transfer of Property Act, 1882 states that the

condition mentioned in Section 31 should not be invalid or
prohibited by law. Although Section 30 is also kept in mind that any
condition in ulterior disposition which is invalid will not invalidate
any transfer that happened prior to it. As for condition precedent or
subsequent, for the transfer to be valid the conditions need not be
invalid and all the requirements mentioned in Section 25 should be
met.

Section 33 of the Transfer of Property Act, 1882 states about any

transfer where on a condition, time is not specified for the
happening or non-happening of an act. This transfer ceases to have
effect only when the act is made to be impossible permanently or for
a great period of time.

Section 34 of the Transfer of Property Act, 1882 states about any

transfer where on a condition, time is specified for the happening or
non-happening of an act and on the failure of such condition, the
interest of the property is to go to another person. If the condition is
fulfilled within the prescribed time, then the transfer will continue to
have effect, and if not then the transfer shall cease to have an effect.
For example, M agrees to transfer land ‘X’ to N on the condition that
he shall go to England in a span of 2 months. If N goes to England
within the prescribed time period then the transfer shall go through
and N shall get the property, but if he fails to do so inside the 2
months specified by M, the transfer shall cease to have effect.

But, it has to been seen that, what caused the delay of the condition
to be fulfilled. If the performance of the specified condition that may
be either subsequent or precedent is prevented by a person who is
interested in its non-fulfilment, the delay is condoned and the
condition is discharged.

X transfers property to Y with a condition that if he does not go to

U.S. within 2 years, the property will pass on to Z. Later on if Z, by
playing a fraud, prevents Y from performing the condition, the delay
in such performance is excused.

Conclusion
Conditional Transfers form a very crucial aspect in day to day
transactions of transfer of property. It is important to know about
provisions relating to this concept. All types of conditional transfers
are given from Section 25 – 34 of the Transfer of Property Act, 1882.
It is important to note that the condition on any transfer should not
be prohibited by law and can be ideally performed. This article
conveys the basic principles and mechanisms behind these
provisions, and how they fare out with practical examples that will
help the reader relate it with the real time events.

Q. what are the exceptions of Rule against Perpetuity?

Imagine an asset that shall forever continue to remain within a family

till eternity, and deprive all others from enjoying its benefits.

Can you imagine, even the owner himself is denied the right to
dispose it for higher value or to tide away difficult times. Similarly,
the state is divested from earning revenue, which is only possible if
property can change hands frequently.

Perpetuity may arise under two circumstances: –

1. Transferor of property is deprived of the power of

alienation.
2. Remote interest is created in the property but without the
right of alienation to the transferee.
However, a condition restraining alienation is void under section 10
of ‘The Transfer of Property Act,’ (TPA), and remote interest is
governed by section 14 of TPA.

Rule against Perpetuity

Section 14 of the ‘The Transfer of Property Act, 1882’ (TPA) is rightly
called ‘Rule against perpetuity’ as it limits the maximum time period
beyond which property cannot be transferred. Starting from the
date that the transferor transfers the property + lifetime of the last
prior interest holder’s + gestation period of the unborn beneficiary +
18 years, ( ‘Age of majority of persons domiciled in India’ under
section 3 of The Majority Act, 1875). This period is called the
perpetuity period, and vesting of the property in the transferee
cannot be postponed beyond this limit.

The above transfer is contingent to many other conditions viz.

sections 5, 10, 13, 15, 16, 18 and 20 of TPA. However, it is to be
borne in mind that section 18 of TPA allows transfer in perpetuity for
benefit of public, and so provisions of section 14 & 16 do not apply in
such cases.

Exceptions to rule of perpetuity

1. Section 18 of TPA provides protection from rule against

perpetuity when the transfer is in favor of public viz.
advancement of religion, knowledge, commerce, health,
safety or any other object beneficial to mankind.
2. Does not apply to personal agreements that do not create
interest in property.
3. Renewal of lease agreements.
4. Covenant for redemption of property under mortgage.
5. Charge created over property, as this does not amount to
transfer of interest.
6. Contract of pre-emption.

Conclusion
The rule against perpetuities limits the duration by imposing certain
restrictions on the use, enjoyment and transfer of property.
Nevertheless, the rule against perpetuity along with relevant
sections of TPA are complex and abstract in its application, especially
when seen through the eyes of the transferor. Despite the best of
intentions, the ultimate beneficiary or grantee may be deprived of
their interests through an inadvertent choice of words while drafting
the pertinent covenant. It shall not be an understatement that the
majority of the so-called learned advocates drafting such instruments
are themselves incompetent to understand the subtilties of the law.