Property law notes (TRANSFER OF THE PROPERTY ACT)

Section 5

Introduction

1. Section 5 of the Transfer of Property Act talks about the definition of the word ‘Transfer of
Property.
2. In the lives of humans, property holds a great amount of value, not only economically and
physically but also emotionally.
3. Not only it gives a sense of economic value, but it also makes us feel settled and secure. But
sometimes people need to transfer these properties to someone due to whatever reasons
like a deed of gift.
4. These issues of property are always advised to be dealt with under the supervision of legal
consultation. This blog talks about Section 5 of the Transfer of Property Act in detail.

What is the definition under section 5 of the Transfer of Property Act?

1. In this Section 5, the Transfer of Property has been defined as an act that is done by a living
person in the given present or future time to another living person to transfer the property.
2. Section 5 of the Transfer of Property Act describes a living person as a living human being, a
company, association, or body of individuals.
3. In Section 5 of the Transfer of Property Act, the definition is defined as an act by which a
living person conveys, etc., which we will discuss in detail.

“In the following sections “transfer of property” means an act by which a living person conveys
property, in present or in future, to one or more other living persons, or himself, or himself and one
or more other living persons; and “to transfer property” is to perform such an act. In this section
“living person” includes a company or association or body of individuals, whether incorporated or
not, but nothing herein contained shall affect any law for the time being in force relating to the
transfer of property to or by companies, associations or bodies of individuals.”

Analysis of Section 5 of the Transfer of Property Act

1.An act

• Transfer of Property is an activity or process in which the property is transferred from one
person to another.
• This is done by the person who wants this Transfer of Property which is a voluntary action
between the person who wants the performance of this act.
• The Transfer of Property happens involuntarily in the case of will and inheritance.
• That’s why the word act is used because there is a process of action that is happening.
2. Living person

• In Section 5 of the Transfer of Property Act, the living person is described as any human
being or a group of human beings or a company, university, firm, trust, or the body of
individual association of individuals who wants to transfer property.
• The second part of Section 5 of the Transfer of Property Act says that the person who is
transferring the property, known as the transferor, should be competent to make a contract
and has attended the age of majority should be of sound mind.
• Court orders are considered as a living person, so they are not taken under the Transfer of
Property Act.

3. Conveys

• Section 5 of the Transfer of Property Act conveys defined as an interest that is being
transferred from one person to another during the process of transfer of property.
• For example, if a person is transferring his property to another person, then the transferee
does not have any interest in the property of the transferor, but if the transferor makes an
interest like a sale or gift, then the transferee gets some interest in it.

4. In the present or the future

• A transfer of property, as per Section 5 of the Transfer of Property Act, talks about the
period for the process of transferring properties from one person to another.
• Section it is defined that the transfer of properties should happen for the present or for the
futuristic purpose. The Transfer of Property cannot happen in the past.

5. Property

• Section 5 of the Transfer of Property Act talks about the word property which is itself quite a
broad term.
• Property, according to Section 5 of the Transfer of Property Act, can be anything from
movable to immovable property, from a car to the right of fishing in a pond.

6. To another living person

• Section 5 of the Transfer of Property Act says that there should be another living person to
whom the property should be transferred. This person can be anyone from a company to a
university etc.
• The Transfer of Property can only be between two living persons.
• Property can also be transferred to the same person that is himself only as a condition when
he is the only trustee to which he is transferring the property.

SECTION – 6

• Section 6 of the Transfer of Property Act helps us to differentiate between the types of
property which can be transferred under the Transfer of Property Act.
 • There are different types of properties under transferable properties and nontransferable
properties.
• Section 6 of the Transfer of Property rights makes a difference between them.
• Section 6 of the Transfer of Property talks about the types of property which can be
transferred except those which are mentioned in the sub-clause of this section.
• Section 6 of the Transfer of Property Act gives us various exemptions, which we will now
discuss in detail.

Transfer of Spes succession

• Section 6 of the Transfer of Property Act makes the spes succession of the property void ab
initio. This section also prohibits any kind of transfer of Property that is not owned by any
individual.
• Let’s take an example of this. Father Ram and son Shyam make up a family. Father Ram
owns the property, and as such, he retains ownership of it during his lifetime. Neither his
son nor anyone else is permitted to sell the property without his permission.
• In this case, Shyam is the Heir Apparent since, if Ram passes away intestate, Shyam would be
the beneficiary of his estate. Here, there is a likelihood that Shyam will succeed in the
property in the future for two key reasons.
• First off, since Ram is the property’s owner, he is free to sell it, dispose of it in any way he
sees fit, or include someone in his will. Nothing will eventually be left for Shyam.
• Second, their son Shyam passes away while his father is still alive. Thus if he had transferred
the property with the ownership of it, then it is termed as void from starting.

Right of Re-entry

• This can be understood by an example Binod sold some things to Ashok under the terms of a
hire purchase arrangement.
• This contract included a condition that said that after the sale, Ashok would take possession
of the property and pay the instalments on time.
• However, if Ashok failed to do so, Binod would enter Ashok’s home and seize the property.
The crucial thing to keep in mind in this situation is Binod. Has a personal right to re-enter
and cannot transfer that right to anyone else.

Easement

• Section 6 of the Transfer of Property Act talks about the right of an individual from the lands
which he has ownership, and the owner of a property has a natural right now enjoying the
profits which arise out of that land.
• For example, if person A has taken home on rent from person B, then the person has all
rights to enjoy the property in terms of using the roofs, garden, etc. He can dry clothes on
the terrace, play games, and do anything else.
• This will come under his right to enjoy the property under section 6 of the Transfer of
Property Act under the easement subclause.

Restricted interests

• Section 6 of the Transfer of Property Act talks about invalid transfers. There are various
rights and ownership which cannot be transferred from one person to another, such as
tenure of services, religious office, a right of pre-emption, etc.
 These cannot transfer, transfer of them is invalid.

Few other exceptions

• A few other exceptions are mentioned in section 6 of the Transfer of Property Act, such as
the transfer of pension from one person to another is also prohibited. One person cannot
transfer his right to a pension to another.
• The transfer of public office owned by an official in the country cannot be transferred to
another person. The right to file a case in case of a property dispute stays with the person
who was involved in the Transfer of Property dispute; the right to file a case cannot be
transferred.
• Right take a benefit of future maintenance by the woman cannot be transferred by her to
someone else.

SECTION – 7

Introduction

• Section 7 of the Transfer of Property Act talks about the issue of who is competent to
perform a transfer of property. Section 7 of the Transfer of Property Act means that
individuals who are legally competent to make a transfer are eligible.
• As per the Indian Contract Act and Indian Registration Act, eligibility and competency are
taken into consideration.

What does not come under the Transfer of Property?

There are few transfers in society not governed under the Transfer of Property Act; we will discuss
them now.

• The transfer between the two blood relatives is known as partition by dividing the property
among them.
• These partitions are not considered a transfer of property as per Section 7 of the transfer of
property act. They are not competent to transfer property as it is not a transfer but a
division of property along with succession.
• In the cases where the property of the person is transferred on the basis of the succession
by the death/sacrifice of the person then, and in the person is sacrificing his part of the
property.
• In the cases of property transfer to the minor, the property must be transferred to the
guardian of the minor; if not, then the transfer will not be considered under the transfer of
property act.
An easement is not a transfer.

• The will of the person is the last wish of him on the succession of his property; the will talks
about the ratio or the method of transfer of the property of the deceased person. This is not
a transfer under Section 7 of the Transfer of Property Act.
• The transfers within the family in case of a dispute are also not considered.

What are the kinds of transfer of property under the Transfer of Property Act?

There are five kinds of property transfer in the Act-

Gift – is the transfer of property to someone else without anything in return with good faith.

Sale – is selling the property for the money in consideration.

Mortgage – a transfer of property but only for limited interest.

Lease – is the transfer of property for a definite period.

Exchange – it is the transfer of property, but money is not the main objective, which is anything else
other than money.

What does Section 7 of the Transfer of Property Act say?

Section 7 of the Transfer of Property Act talks about the definition of the competency of a person to
make a valid transfer. Section 7 of the Transfer of Property Act says that –

“Persons competent to transfer.—Every person competent to contract and entitled to the

transferable property, or authorised to dispose of transferable property not his own, is competent to
transfer such property either wholly or in part, and either absolutely or conditionally, in the
circumstances, to the extent, and in the manner, allowed and prescribed by any law for the time
being in force.”

Transfer of property and Inheritance

Section 7 of the Transfer of Property Act talks about the confusion which arises if there is a question
of transferring the property to the person who is going to inherit it in the upcoming future.

Example –

The person who has the competency to inherit the same but, due to some circumstances, wants to
make the transfer of property in his favor as per Section 7 of the Transfer of Property Act-

A person Z, son of a Q, cannot transfer the rights of the property to someone else, even in gift deeds,
until he is going to get the right himself.

Z cannot transfer it until his father Q is alive.

If a person Z transfers the right of the property to someone J without having the rights of the
ownership of the property, even in the form of gift deeds, then also the transfer of such nature will
become void as per Section 7 of the Transfer of Property Act.

SECTION –8

Essentials of the operation of transfer under Section 8 of the Transfer of Property Act

There are three major elements of section 8 of the Transfer of Property Act which are as follows-

1)Transfer without Consideration

The transferor is said to transfer something unconditionally when he lays down no condition and is
willing to transfer his property without any consideration, or if he has not expressed any intention,
then it would count as a conditional transfer;

Gift deed: The transferor may execute a gift deed. This would mean that he would transfer his
absolute interests and title in the property to the transferee, and the law would presume that he has
no contrary intention. A deed is said to be an unqualified or unconditional transfer.

2) Legal incidents of transfer:

This is the most important aspect of Section 8 of the Transfer of Property Act, which means that
whatever comes along or is attached to the property needs to be transferred. In other words, the
property and any legal incidents associated with it must be transferred as part of the same
transaction. A person cannot transfer anything to another by performing activities that he is not
authorised to perform.

a) Land: All things attached to the earth, Rent and profit occurring after the transfer, Easement
attached to it

b) Machinery: In the case of machinery, all its movable and immovable parts shall be transferred.

c)Home or house: Locks, keys, windows, etc. all that provide permanent use, Rent, and profits
occurring after the transfer, an easement annexed with it

d) Debt: If the property transferred is a debt, then all securities with that debt shall pass on to the
transferee.

e) Money: Money or other property that has the potential to generate income must be transferred,
with the interest or income accumulating after the transfer takes effect.

Right of Pre-emption

Moreover, when there are several owners of immovable property, each co-owner has the right to
transfer his or her portion of the property or any interest therein. To transfer property,under Section
8 of the Transfer of Property Act a co-owner does not necessarily have to wait for or obtain consent
from other co-owners. However, the surviving co-owners would have priority over third-party
outsiders in acquiring the property. This is referred to as the right of preemption..

3) Different intentions expressed or implied:

Unless and until the transferor expresses a different intention, the property and all his interests are
said to be fully transferred to the transferee. In some cases, the transferor may reserve some
interest in the property for himself or may not want a specific part to be passed on. This will be
communicated by using a phrase or term.

If the words are not clear, then the intention prevails upon execution of the deed of sale. There is
some question as to whether the title passes to the vendee or not, which depends upon the parties’
intention.

Registered sale deed:

Another important point to be noted is that Section 8 of the Transfer of Property Act and Section 54
suggest that, through the execution and registration of a sale deed, the title and interest would be
fully transferred to the transferee according to the terms mentioned in the agreement.

Gender Restrictions in Absolute Estate

1) There have always been some restrictions in the transfer of property according to the Section 8 of
the Transfer of Property Act to women and some ambiguity regarding inheritance and absolute
enjoyment of property. The Supreme Court in a judgement stated that “A transfer conveys the full
estate of the transferor when no restriction is expressed by the deed”. In the case of females, it was
a unanimous assumption and obscurity that the Hindu law requires a gift to a female to be
understood solely as a restricted and limited gift.

2) The points that were put forth by the Proposition in Mahomed Shumsool’s case were interpreted
by Indian High Courts to mean that a gift of immovable property to a woman could not be deemed
to confer upon her an absolute estate of inheritance, which she could alienate for her own
enjoyment, unless the deed expressly grants her the power of alienation.

3) It has recently been examined in some High Courts that, according to the law as in Section 8 of the
Transfer of Property Act it is now understood, there is no presumption one way or the other, and
there is no difference between the case of a male and the case of a female; it has been clearly stated
that “The fact that the transferee is a woman does not make the gift any the less absolute where
the words would be sufficient to convey an absolute estate to a male.”

4) As we discussed above, this is the basic concept of law acknowledged and contained in Section 8
of the Transfer of Property Act, and there is no reason for diverging from this principle unless it is
demonstrated that under Hindu Law or any specific provision, a gift to a female indicates a limited
gift or bears with it the limitations.

SECTION 13

What does Section 13 of the Transfer of Property Act say?

Section 13 of the Transfer of Property Act says, “Transfer for benefit of an unborn person—Where,
on a transfer of property, an interest therein is created for the benefit of a person not in existence at
the date of the transfer, subject to a prior interest created by the same transfer, 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 transferor in the property.“

What are the main elements of section 13 of the Transfer of Property Act?

There are three major elements of section 13 of the Transfer of Property Act which are as follows-
No direct Transfer

• A person who has not been born cannot get a direct transfer of the rights of the property.
• This type of transaction can only happen with the help of trust.
• The main important principle of the Transfer of Property Act is that every property has its
owner.
• Properties transfer to a person who has not been born, then the property will have no
existing owner.
• Contrary to the principle of Transfer of Property.

Prior Interest

• In situations where there is no existence of trust between the parties.

• Then the Transfer of Property to the unborn person should be with some other person until
that unborn person comes into existence.
• The interest of an unborn person in the property will be owned by some other person until
he is born.
• This is called prior interest under section 13 of the Transfer of Property Act.

Absolute interest

• As per section 13 of Transfer of Property, the transfer to the unborn should be complete,
which means the entire property must be transferred.
• The Transfer of Property two and one person cannot be transferred to another person.
• The further transfer of the property is invalid.
• The property transfer to an unborn will has the interest for his life period.
• However, there is a rule of double possibilities.
• The first possibility is for the unborn person to whom the property must be Transferred.
• The second is the existence of that unborn person

Section 14

Perpetuity

Before going to the details of the rule against perpetuity, let’s understand what the meaning of it is,
what is the rule of perpetuity and why the rule against perpetuity is incorporated in TPA.

Perpetuity means

• The state or quality of lasting forever

• Time without any limit
• Forever or something that is perpetual and never end.

Rule of Perpetuity

Rule of Perpetuity means, a property will be in the name of a particular person or his generation for
an indefinite time. Suppose, A is the owner of a property, and he makes a rule regarding transfer
that the property will be transferred to his son, then their son's son and so on. They will have the
right to enjoy the property but not the right to transfer the property. So, this particular property will
remain in a particular family for an unlimited time. This is the rule of perpetuity. From this, the rule
against perpetuity came.

Why this Rule Against Perpetuity?

There are many reasons for creation of rule against perpetuity. They are

• This section ensures that property doesn’t remain in the same family for unlimited timeline.
Without this rule, there won’t be circulation of property in society and will remain in a
family. This is harmful for society.
• This section also ensures that one can utilize his property for his benefit in true sense –
transfer/ sale/ gift etc.

This section helps for industrialization. If someone’s land or property is tied up and no one has
capital to invest in that particular property. In this scenario, there will not be any industrialization.
Without this rule against perpetuity, there won’t be any scope of industrialization.

This section helps the Government to earn income in the form of property registration. Because
whenever a property is transferred, there are registration and other procedures, from where the
government gets benefitted.

How Perpetuity May Arise?

Perpetuity may arise in two aspects.

Firstly, By taking away from the transferee his power of alienation. For example, X sells his property
to Y with a condition that Y can sell the property only to Z. Here, Z may not buy this property. That’s
why this condition is void. Section 10 of Transfer of property talks about it.

Secondly, By creating a succession of partial interest in favour of unborn persons. A transfers his
property to B with a condition that it will go to the unborn of B, then the unborn of C, then the
unborn of D and so on. Perpetuity has arisen in this case. For this part, Section 14 lays down the time
period regarding this issue. From this another important point arises and it is Maximum Timeline.

Maximum Timeline in Rules Against Perpetuity

Regarding maximum timeline, there is a famous case Cadell V Palmer where a property was
transferred to 26 persons. From this case, some rules were established. The rules are Transfer can be
any number of living persons

Transfer can be to only one unborn person. This unborn person will get absolute interest and
transfer will end here.

Timeline of pregnancy (Period of Gestation) and attaining majority.

Analysis of the Minority Period in Rule Against Perpetuity

In accordance with section 3 of the Majority Act, 1875 every person domiciled in India/Bangladesh
has attained majority when he/she have completed his/her age of 18 years and not before. When a
minor is under the supervision of the Court of Wards his/her minority ceases at the age of 21 years
old and not before.

But In the case, Sundarajan V Natarajan the privy council held that, the term minority in Section 14
to be understood as 18 years and not any other age. Here by other age, the privy council meant legal
age i.e. 21 years. So, in conclusion the minority period is max 18 years in Section 14.
Extent of the Rule Against Perpetuity

Section 14 of the TPA, 1882 has fixed the maximum limits for postponing the vesting of interest in
the ultimate beneficiary. The maximum period during which the property is remained inalienable is
called perpetuity period.

The maximum time limit fixed for postponing the vesting of interest:

Life or Lives of the last prior interest holder/s + Minority of the ultimate beneficiary.

Gestation Period

The fetal development period from the time of conception until birth is called the gestation period.
This period usually lasts for 9 months. An unborn child in the mother’s womb during the gestation
period is a competent transferee. If the last prior life interest holder expires before the birth of the
unborn person then the maximum period for postponing the vesting interest will be –

Life of the last prior interest holder + Period of gestation + Minority of the ultimate beneficiary

If the ultimate beneficiary is already a born person then the period of gestation will not be counted
besides the minority of the ultimate beneficiary.

So the maximum possible remoteness of vesting is =

Life of the last prior interest holder + Period of gestation + Minority of the ultimate beneficiary.

Comparison between English Law and Indian/Bangladeshi Law regarding Rule of Perpetuity

The scope of postponing the vesting of property in an ultimate transferee is different in English and
Bangladeshi/Indian law.

Under English law the vesting of interest in a property may be postponed up to life or lives of last
prior interest holder/s plus the age of 21 years old irrespective of the age of minority of the ultimate
beneficiary. The English law permits 21 years at large after life or lives in being. According to English
law if vesting of property in a transferee has been postponed beyond 21 years, the transfer shall not
be void. Transfer shall operate as if age of 21 years had been replaced for the specified in the
instrument, which can be any fixed duration longer than 21 years.

As previously discussed, in India and Bangladesh the law permits only the period of minority after a
life or lives in being for postponing the vesting of property in a transferee. Also, the maximum age
limit is 18 years.

Exception of Rules Against Perpetuity

1.Public Benefit: Public benefit is discussed in Section 18 of TPA. This is a protection for rules
against perpetuity i.e Section 14 as well as other Sections like 16 and 17.

2.Personal Agreements: This rule applies to only transfers of interest. Agreements that do not
create any interest in the property are not affected by this rule.
3.Mortgage: Just like personal agreements, mortgage will not be affected by Section 14 as in
mortgage there is no creation of future interest.

4.Perpetual Lease: Perpetual lease also is an exception in Section 14.

5.Pre-emption: In pre-emption, if there is no question of any kind of interest in the propery. Then
this rule won’t apply.

6.Land Purchased by Corporation: In case of corporation, this rule won’t apply.

7.Gift Made For Charity: This will also not be affection by Section 14.

8.Properties Settles For Memorable Public Service: This is another exception of this section.

Case Laws Regarding Rule Against Perpetuity

1)Anand Rao Vinayak V Administrator General of Bombay

In this case, a gift was declared void considering Section 14 because the given clause in that gift was
21 years which is clearly violation of this rule.

2)Abdul Fata Mahomed V Rasamaya

The privy council held that, a gift to an unborn child or generations is forbidden by Muslim law or
Mohammedan law except in the case of Waqf.

3)Rambaran V Ram Mohit

The Supreme Court held that, section 14 i.e rule against perpetuity does not apply to personal
agreements if the agreement does not create any interest in the property.

Similar Act related to Rule Against Perpetuity

Section 14 of TPA is like Section 114 of Indian Succession Act, 1925

SECTION 19 What is Vested Interest

In simple language, vested interest means a legal right of present or future enjoyment.

Before, going to the details of it, let’s see an illustration or example of vested interest to understand
the topic more clearly.

A father had some property. He scared to transfer the property to his son because son had multiple
addiction e.g. drinking, smoking etc. So, what the father did was, he gave life interest to his son and
absolute interest to his grandson.

Here, grandson did not get the possession yet. He only got interest which is known as vested
interest. His possession is forwarded for certain number of years. But definitely he has some interest
over the property which is known as vested interest.

Here grandson will get the possession and all other absolute rights over the property after the death
of his father (Son). But before his father’s death, he will only have vested interest. It is not a
contingent aspect because the son will obviously die. This event death is an obvious matter. But on
the contrary, in contingent interest, there may be or may not be an event. An example of contingent
interest is, A will only get the property if he marries B. Here the event is not certain. But, in the
above case, the event i.e death is certain. That’s why it vested interest.
Happening of Vested Interest

It may happen in two ways.

With timeline

Without Timeline

Let’s understand this with an example.

Mr. A is gifting his certain property to Mr. B without giving the possession yet. Here, Mr. B got
vested interest till the time he is getting the possession. It is without timeline.

With Timeline

When it comes to with timeline, it can happen in two ways

In terms of specifying that is to take effect immediately or

On the happening of an event which must happen

Let’s understand these two points with an illustration,

Mr. A transfers the property in favour of Mr. B for life and then to Mr. B’s unborn child C. If , Mr A
mentions that C will get the property at the age of 10 then immediately after the birth of C, he will
get vested interest. This interest will remain from the age of 0 to 10. Once C, attains the age of C
then he will get property immediately.

If, that transfers was made by saying that B will enjoy for life and once C attains 18 years, he will get
the property. Here before 18 years, C will have vested interest in this span of time. Here attaining 18
years is an must event.

Essentials of Vested Interest

These following points are the essential elements of vested interest

There must be transfer of property.

Timeline may be mentioned or may not be mentioned. Sometimes, transfer can happen immediately
or on happening of certain event.

This interest creates in favour of a person.

A vested interest is not defeated by the death of the transferee before he obtains possession. In case
of death, his legal heirs will get the property.

It postpones the enjoyment of transfer of property.

It creates a prior interest before the final transfer or absolute transfer of the property.

There should be direction for accumulation of income.

Characteristics of Vested Interest

1.It’s present fixed interest

2.It’s transferable and inheritable

3.It can be attached and sold in execution

4. Mere fact that the transferee did not obtain the possession of the property before his death
doesn’t defeat a vested interest.

5. An unborn person acquires his vested interest only after his birth

6.Contidion of ‘on attaining a particular age’ is not contingent and it is vested interest

More Illustrations

Here are two more illustrations to understand vested Interest clearly.

Illustration 1

A transfers his estate to B and then to C after the death of B.

Here C has vested interest over the property

If B dies then the property will go to C

If C dies prior to B, then the property will go to C’s legal heirs

Illustration 2

A transfers his property to his wife and then to his son at the age of 18 along with the accumulated
income

A’s unborn son has vested interest over the property

The son will get the complete possession after attaining 18 years

The son will get the accumulated income too.

Case Law

Maharaj Bahadur V Singh Bell Chand

In this case, there was an agreement between Maharaj Bahadur and Jains that if Jains construct
temple in the land, Maharaj Bahadur will give the land free of cost. The Jains did not consider
making the temple at that particular time. In the meantime, Maharaja sold the property to third
party. After selling the property, the Jains came to build the temple but saw that third party was
having possession over the land and was enjoying the property. So, the Jains went to the Privy
Council asking for the land.

The privy council held that, there was no vested interest created and that’s why the suit was failed.

SECTION – 20

Section 20 discusses about vested interest of unborn person. Here the unborn person will get the
vested interest only after his/her birth. Unborn person might get the possession immediate after the
birth or may be after attaining a certain age. This certain age can be mentioned in the clause it can
be any age, but the maximum is 18 years.
SECTION 21

What is Contingent Interest?

Meaning of Contingent Interest: – When interest is created in favour of a person to whom such
property is transferred, and such interest depends upon the happening of a specified uncertain
event, it is called Continent Interest in the property. According to section 21 of Transfer of Property
Act, the person having the contingent interest does not get the possession of that property but has
the expectancy to receive it upon happening of that event but will not receive the property if the
event does not happen as the condition is not fulfilled. Contingent interest is entirely dependent on
the condition imposed on the transfer.

For example, ‘A’ agrees to transfer the property to ‘B’ on the condition that he shall secure 90 % in
his exams. This condition is uncertain and the happening of the event or not happening is in doubt
and therefore ‘B’ here acquires a contingent interest in the property. He shall get the property only if
he gets 90 % and when the condition is fulfilled.

However, when a person has a chance of owning a specific property and before the uncertain event
occurs, interest in the property is not a contingent interest if such person receives any income from
such property.

Contingent Interest occurs on following conditions: –

When interest is created in favour of a person to whom such property is transferred, and such
interest depends upon the happening of a specified uncertain event.

Therefore, the transfer of interest depends upon an uncertain event which may or may not happen.

The contingent interest in the property can become Vested interest in the happening of that event.

The right of enjoyment of ownership or possession in the property depends upon the happening of
that uncertain event that may or may not happen.

Exception to Contingent Interest of Transfer of Property Act

Section 120 of the Indian Successions Act, 1925 lays down the exceptions for contingent interest: –
Where, under section 21 of transfer of property, a person becomes entitled to an interest therein
upon attaining a particular age, and the transferor also gives to him absolutely the income to arise
from such interest before he reaches that age, or directs the income or so much thereof as may be
necessary to be applied for his benefit, such interest is not contingent.

Section 22 of Transfer of Property Act states about the transfer to a group or class of members with
a contingent interest. Such interest in the property will only be transferred to those who fulfil that
necessary condition. For example, there is a transfer to a group of 5 people, and the condition is that
the property will be vested in persons who attain the age of 40 years on this date. The persons who
have attained this age will get an interest in the property and people who have not, will not get an
interest in that property. Therefore, all the people above the age of 18 years will get an interest in
the property and others will not get interest in the property.

What are the characteristics of Contingent Interest?

There are three main characteristics of contingent interest: –

This interest is entirely dependent upon the condition. It only happens when the condition is
fulfilled.

Death of the transferee before getting the possession of the property will result in the failure of
continent interest and the property will remain with the transferor.

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

CASE LAWS

1Lachman vs. Baldeo (1919) 21 OC 312

In this case, a person transferred a deed of gift in favour of another person but instructed him not to
get possession of that property until the transferor himself dies. The transferee will have a vested
interest even if his right to enjoy is postponed.

2.Leake vs. Robinson (1817) 2 Mer 363

In this case, the court stated that whenever a condition involves a legacy, which was given ‘at a
particular age’ or ‘upon attaining a particular age’ or ‘special age’ goes. It can then be derived that
the transfer involves a contingent interest.

SECTION – 35 DOCTRINE OF ELECTION

In simple words, election is a process that puts a person in a situation where he must choose
between two alternative rights or two inconsistent rights. Doctrine of election is a common law
principle of equity that requires that a person is under an obligation to elect or choose between two
inconsistent and alternative rights in the event where there is an ‘apparent intent’ of the grantor
that the grantee should not enjoy both. Doctrine of election is incorporated under section 35 of the
Transfer of Property Act, 1882.

According to doctrine of election, if a benefit is conferred upon a person under an instrument, that
person must also bear the burden. A person cannot take what’s beneficial to him and disapprove to
that which is against him under the same instrument.

In the classic words of Mainland, “He/she who approves a benefit under a deed/will or the other
instrument, must-

1.Accept the contents of the instrument completely;

2.Obey to all its provision;

3.Relinquish all rights or interests that are inconsistent with

Illustration: By a deed X (transferor) gives to Y (transferee) a farmhouse belonging to Z (owner), and

by the same deed gives a factory belonging to himself (X) to Z. Now, Z is put to election that means Z
must choose whether he wants to take the factory of X by giving his farmhouse to Y or not. In this
case, Z is entitled to X’s factory only when he conforms to all the provisions of the deed by
renouncing his rights in the farmhouse and by giving it to Y.

What are the principles underlying the doctrine of election?

The Latin maxim “quod approbo non reprobo” means that ‘no one can approbate and reprobate.’ In
other words, a person cannot accept a thing and reject another in the same instrument. This maxim
is one of the underlying principles of doctrine of election. The Courts of Equity in England followed
the legal maxim ‘Allegans contraria non est audiendus’ which means ‘he is not to be heard who
alleges things contradictory to each other.’ For the first time, doctrine of election was elaborately
explained by Lord Hather in the case of Cooper v Cooper [1874] –

“There is an obligation on him who takes a benefit under an instrument to give full effect to that
instrument under which it was beyond the power of the donor or settlor to dispose of, but to which
effect can be given by the concurrence of him who receives the benefit under the same instrument,
the law will impose on him who takes the benefit, the obligation of carrying the instrument into full
and complete force and effect.”

An election will be binding if the person entitled to elect has the full knowledge of the rights and
interests. Election can be made but once. If two remedies are open and a person takes one and fails,
he cannot turn around and adopt the other.

Illustration: If a mortgagee (x) obtains a decree for rent and allows it to be barred, he cannot rely on
the charge for the same.

What are the essential conditions for the applicability of the doctrine of election?

In the case of Mst. Dhanpatti v Devi Prasad and others [1970] the essential conditions for the
doctrine of election were observed by the court.

The essential conditions for the applicability of the doctrine of election are as follows:

The transferor must profess to transfer a property which he has no right to transfer;

The transferor must confer a benefit on the owner whose property he intends to transfer to another
person;

The transfer and the conferring of benefit must constitute parts of the same transaction;

The benefit must be directly conferred on the owner of the property;

The benefit must be conferred on him in the same capacity in which he is the owner of the property;

The second paragraph of section 35 states that it is immaterial whether the transferor at the time of
transfer of property knows or does not know it to be his own property.

Illustration: By a deed, A transfers 5 acres of land to B which A will get through partition in the
future. B in return gives A Rs. 2 lacs in advance. In the present time that 5 acres of land belongs to
A’s father and A does not own the property yet. Now, A’s father is put to an election whether he
wants to keep the Rs. 2 lacs and give the land to B or not. Whether A does or does not believe that
which he professes to transfer to be his own is immaterial.

What are the effects of election against the transfer?

If the owner gives disapproval to transfer of his property –

He must renounce the benefits confer on him;

The benefit intended for him would revert back to the transferor or his legal representatives.
In what cases the disappointed transferee can claim compensation?

The doctrine of election is based on the principle of compensation and not of forfeiture. In the
following cases the disappointed transferee has a claim for compensation:

Where the transfer is gratuitous;

Where the transferor has before the transfer of property died;

Where the transferor has before the transfer of property become incapable of making a fresh
transfer;

Where in the all cases the transfer of property is for consideration.

In the first three cases the case is closely similar to will and in the last case the matter is one of
contract and the transferee has a consequent claim for compensation.

Where the elector has preferred to retain his own property and declined to accept the benefit
conferred upon him, the benefit shall return back to the transferor and if the transferor dies, his
legal representatives will get the benefit back.

What is the quantum of compensation claimed by the disappointed transferee?

According to section 35 of TPA, 1882 in the above mentioned four cases where the disappointed
transferee has a claim for compensation, the quantum of compensation is the amount or the value
of the property attempted to be transferred to the disappointed transferee.

What are the modes of election?

The paragraphs of section 35 of TPA, 1882 provide two modes of election.

Election may be expressed;

Election may be implied by conduct.

In the first mode where election is made in express words, it is final and conclusive. In the second
mode where election is made impliedly by conduct, there are presumptions as election.

Presumption as Election:

Whether the benefit conferred on the owner (elector) was accepted with the knowledge of the
circumstances is a question of fact subject to the following rules:

If the elector has been enjoying the benefit conferred on him for two years without doing any act to
express dissent, it shall be presumed that he was aware and had the knowledge or he waived the
inquiry.

If the elector has done any act which renders it impossible to place the person interested in the
property professed to be transferred in the same condition as if such act had not been done.

If an election has not taken place by the elector, the transferor may compel the elector to make his
election. If the elector fails to comply with this requisition within a reasonable time, he shall be
deemed to have elected to confirm the transaction.
If the elector suffers from some disabilities such as lunacy, infancy etc then the election shall be
postponed until the disability ceases to exist or until the election is done by some competent
authority.

Illustration: In the picture attached-above if Mr. Jon (transferor) transfers to Mr. Steven (transferee)
an estate to which Mr. Damon (owner) is entitled and as part of the same transaction gives Mr.
Damon (owner) a coal mine. Mr. Damon takes possession of the mine and exhausts it. He has
confirmed the transfer of the estate to Mr. Steven (transferee).

Case References for Doctrine of Election

Paramada Dasi v Lakhi Narain Mitter [1885] ILR 12 Cal 60

In this case the plaintiff brought a suit in 1873 to enforce her claim for maintenance against the
ancestral property. In the present case the court held that, the plaintiff clearly made her election
and she elected to have maintenance from the property then the property was devised to her
nephew. She must have known that this maintenance was provided to her instead of her ancestral
property. So now, in the present case she cannot claim to recover the ancestral property which is
sold to the defendant.

SECTION 54 SALE

INTRODUCTION: Sale is defined as the transfer of ownership of a property in exchange for a price
paid or promised or partly paid or part promised. Sale simply means the purchase and sale of goods
and services; the sale of immovable property is provided under Section 54 of Transfer of Property
Act 1882.

DEFINITION: A sale under transfer of property act is a transfer of ownership for a money
consideration. It refers to the complete transfer of all rights in the property sold. No rights in the
property sold, are left to the transferor.

The elements of Sale are given as follows: –

1. Transfer of Ownership: – Ownership is the aggregation of all rights and

liabilities in a property. When transfer of ownership occurs, all rights and

liabilities in the property is transferred from transferor to transferee.

2. Money Consideration: – Where the ownership of the property is transferred for

money, it amounts to sale, but if it is transferred for something else, it amounts

to exchange.

3. The seller must be a person competent to transfer. The seller should be either

the owner of the property or should have the authority to dispose of it.
4. The buyer must be a person competent to the transferee.

5. The subject matter must be a transferable immovable property which can be

tangible or intangible.

6. There must be a transfer of ownership

7. The transfer must be in exchange for a price. ‘Price’ in the ordinary sense

connotes money consideration for the sale of the property. The price must be

paid or promised or partly paid.

The essentials of a sale under transfer of property act are given as follows: –

Parties i.e., Seller, Buyer

Competency

Money consideration

Conveyance

Registration

Explanation: –

1. Parties: – In a sale, there must be at least two parties. The person who transfers

his property is known as the transferor/seller/vendor and the person to whom the

property is transferred is known as the transferee/buyer/vendee.

2. Seller: –

The seller must own the property which he is going to sell.

The seller should have legal title to it only then he can sell the property.

The seller should be competent to contract.

The SELLER must be not a minor person.

The should not be of unsound mind.

The must is not statutorily incompetent.

The seller may be a natural person / judicial person, for example, a

corporation or any other legal person.

3. Buyer: –

the buyer must be competent to get the ownership of the property. The buyer should not be
disqualified from purchasing the immovable

property under any law at the time of sale, for example: under section
136 of the Act, a judge, a legal practitioner or an officer of the court is

incompetent for purchase of actionable claim.

oThe seller may be a natural person / judicial person, for example: a

corporation or other legal person.

4. Subject Matter: – The sale under Transfer of Property Act, 1882 specifically

deals with the sale of immovable property. Immovable property includes the

benefits from the land and the things attached to the earth and it does not

include standing timber, growing crops and grass.

5. Competency: – A valid sale requires both the parties i.e., the buyer and seller to

be competent on the date of sale.

6. Money Consideration: – The consideration must only be in money to constitute

a sale. If it is for exchange or some other items then it is not sale. The

consideration for the sale must be paid, partly paid, promised or partly promised.

Therefore price is money but not necessarily money immediately paid in notes

and coins, it includes money which might be already due or payable at a future

date.

7. Conveyance: – Section 54 provides for two ways for transfer of property: –

where the property transferred is tangible immovable property of value

of one hundred rupees and upward transfer can only be made by a

registered instrument. Where the property is immovable property of

less than one hundred rupees, it can be transferred either by registered

instrument or delivery of property. The delivery of tangible immovable

property occurs when the seller puts the buyer or such person as the

buyer directs in possession of the property.

registration of sale deed: – Where the value of tangible immovable property is Rs. 100 or more, the
sale of such property requires registration of the deed. Where the property is intangible immovable
property of any valuation, it will require registration to complete the sale.

8. Registration: – Both section 8 and 54 of the Transfer of property act, 1882 suggests that through
execution and registration of a sale deed, the ownership and all interests in the property passes to
the transferee, yet this will be on the terms and conditions embodied in the deed indicating the
intention of the parties. The intention of the parties can be gathered from the averments (formal
statement) in the sale deed itself or under other attending circumstances. Where the sale is to be
completed only by the registered instrument, the ownership is presumed to pass on the execution of
the sale deed, not on the deed’s registration. The sale deed transferring immovable property of the
value of 100 or more it will require registration under Indian Registration Act 1908

Nahar Lal vs. Brijnath 1928 AC 385

Judgments of the case: – In this case, the court held that if the registration is done in violation of the
provisions of the Registration Act, a document cannot be said to be duly registered

Mode of execution of sale

A property must be transferred by sale when it is executed by the transferor in writing and is

attested and registered.

When a property is of a lower value the sale can be completed by delivery of the property.

Due to minimal value, the formality of registration and attestation is not mandatory,

however, in a sale a property of a value less than rupees hundred the formalities required are

optional.

Hence a sale under the Act only pertains to immovable property and not movable property.

Once registration, attestation and a document in writing called as the sale deed is executed

the transfer of immovable property in form of sale is completed and will be binding on both

the parties to the sale.

SECTION 55: RIGHTS AND LIABLITIES

Liabilities of buyer :-

According to section 55(5) of transfer of property act 1882

1.Liability to disclose facts– To disclose to the seller any fact as to the nature or extent of the seller’s
interest in the property of which the buyer is aware, but of which he has reason to believe that the
seller is not aware, and which materially increases the value of such interest. In the case of Hazi
isha V/s Daya Bhai (A.I.R 1896 mumbai 522) it has been held that it is the duty of the buyer that he
should provide all information related to ownership which he is in know, to the seller. This
arrangement is based on the principle of equity and relations of believe between buyer and seller.

2.Liability of payment of purchase money- To pay or tender, at the time and place of completing
the sale, the purchase-money to the seller or such person as he directs: provided that, where the
property is sold free from encumbrances, the buyer may retain out of the purchase-money the
amount of any encumbrances on the property existing at the date of the sale, and shall pay the
amount so retained to the persons entitled thereto.

3.Liability to bear damages– where the ownership of the property has passed to the buyer, to bear
any loss arising from the destruction, injury or decrease in value of the property not caused by the
seller.

4.Liability to pay due amount- where the ownership of the property has passed to the buyer, as
between himself and the seller, to pay all public charges and rent which may become payable in
respect of the property, the principal moneys due on any encumbrances subject to which the
property is sold, and the interest thereon afterwards accruing due. In the case of Gangi V/s Govinda
it was held that the buyer is liable to pay all the charges after sale. Due amount includes revenue,
principal, interest etc.

Right of Buyer:-

According to section 55(6) of transfer of property act 1882

1.Right to get Benefits, Rents- where the ownership of the property has passed to him, to the
benefit of any improvement in, or increase in value of, the property, and to the rents and profits
thereof; in “Achtak V/s Parmeshwar” it was decided that the buyer is entitled to get benefits of the
maintenance done by seller.

2.Right to get Interest-unless he has improperly declined to accept delivery of the property, to a
charge on the property, as against the seller and all persons claiming under him, to the extent of the
seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer
in anticipation of the delivery and for interest on such amount; and, when he properly declines to
accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to
compel specific performance of the contract or to obtain a decree for its rescission.

An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and
paragraph (5), clause (a), is fraudulent.

Liabilities of seller:-

According to section 55(1) of transfer of property act 1882

1.Liability to Reveal Fault:- to disclose to the buyer any material defect in the property 1[or in the
seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could
not with ordinary care discover; In the Case “Ganpat Ranglal V/s Mangilal Hiralal” High Court held
that the seller is not bound to disclose such faults which is really known by buyer or otherwise he is
in know of the information.

2.Liability to Submit Document:- to produce to the buyer on his request for examination all
documents of title relating to the property which are in the seller’s possession or power;

3.Liability to Submit Document as to Entitlement:- to answer to the best of his information all
relevant questions put to him by the buyer in respect to the property or the title thereto; in the case
of Laxmidas & Company V/s D.J. Tata it has been held by the Mumbai high court that if the seller
does not answer for such questions then the contract may be rescinded by the buyer.

4.Liability to Excecute Conveyance:- on payment or tender of the amount due in respect of the
price, to execute a proper conveyance of the property when the buyer tenders it to him for
execution at a proper time and place;

5.Liability to Protect Document: - between the date of the contract of sale and the delivery of the
property, to take as much care of the property and all documents of title relating thereto which are
in his possession as an owner of ordinary prudence would take of such property and documents.

6.Liability to Deliver up Occupation:- to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits; in the case Darpan V/s Kedar Nath it
has been held that if Seller does mistakes in delivering up to possession the buyer can file a suit
against seller.
to pay all public charges and rent accrued due in respect of the property up to the date of the sale,
the interest on all encumbrances on such property due on such date, and, except where the
property is sold subject to encumbrances, to discharge all encumbrances on the property then
existing.

Right to Seller:-

According to section 55(4) of transfer of property act 1882

1.Right to get Rent and Profit: - to the rents and profits of the property till the ownership thereof
passes to the buyer.

2.Right to get Interest on Unpaid buying money:-where the ownership of the property has passed
to the buyer before payment of the whole of the purchase-money, to a charge upon the property in
the hands of the buyer, any transferee without consideration or any transferee with notice of the
non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for
interest on such amount or part from the date on which possession has been delivered. In “Subba
Rao V/s Vasudev Shastri” the A.P High Court decided that the seller is entitled to get interest on
selling-money only when the possession of sold property is given to buyer.

SECTION 56

What is Doctrine of Marshalling under TPA, 1882?

The doctrine of marshalling entitles the subsequent purchaser and puisne mortgagee to claim the
right of marshalling. When a creditor or mortgagee has the opportunity to satisfy his claims out of
several properties of the debtor or mortgagor, then in the absence of a contract to the contrary,
such creditor or mortgagee shall not by exercising his right prejudice another creditor or mortgagee,
whose securities or properties constitutes just one of those properties.

Section 56 and 81 of the TPA, 1882 are applicable in a situation where the mortgagees have the
same debtor or mortgagor. The debtor or mortgagor should be owner of two or more properties.

The Underlying Principle of Doctrine of Marshalling

The doctrine of marshalling is originated from the equitable principles of justice and good
conscience.

Lord Eldon elaborated the doctrine of marshalling in the case of Aldrich v Cooper [1803] 32 ER 402.
He said –

“If a creditor has two funds, the interest of the debtor shall not be regarded, but the creditor having
two funds shall take that which, paying him will leave another fund for another creditor.”

The doctrine of marshalling is the by-product of the equity, justice and good conscience. The courts
of equity thought that it would be grave injustice to deprive the subsequent purchaser or puisne
mortgagee of their equitable rights in the property.

Section 56 of the TPA, 1882

This section mainly deals with the subsequent purchaser, who has a right to claim marshalling. This
section is operative between the purchaser and the original mortgager and not between one
purchaser and another. Marshalling is not allowed in order to prejudice the rights and interests of
the mortgagees or other persons claiming under the original mortgagor. Section 56 is operative only
when right to marshalling is claimed by a purchaser and the party against whom it is claimed is the
original mortgagor.

Essential Ingredients of Section 56 of TPA, 1882

The followings are the essential ingredients of section 56 –

The owner must have two or more properties;

There must a common mortgagor or debtor between two or more mortgagees;

The owner must sell one or more properties out of those properties to a purchaser after mortgaging
them to the mortgagee;

The doctrine of marshalling will not be applied to prejudice the rights of third parties.

Effects of Section 56 of TPA, 1882

Under this section the subsequent purchaser has given a power to make the mortgagee satisfy his
debts out of the properties which are not sold to the purchaser. If a mortgagee has obtained a
foreclosure decree, then he will be entitled to the protection of this section as a purchaser.

In the case of Mahatab Uddin v Nim Chandra Shaha 4 DLR 95 the court said that although a
mortgagee has a right to have all properties mortgaged to him to put up for sale, the court has a
discretionary power to make an arrangement in which the properties should be sold without
prejudicing the interest of the mortgagees.

Exceptions to Section 56 of TPA, 1882

Section 56 does not apply in the following cases –

1.Auction Sale

2.Leases

3.Purchases subject to prior encumbrance

SECTION 57

Generally, a sale needs to be free of any kind of lien, charge, or obligation. However, there may be
instances in which a property with encumbrances has been sold. Section 57 of the Act caters to such
a situation. This Section covers both the sales made by the court or in the execution of a decree and
those made outside the court. It offers a legal procedure to obtain a declaration from the court that
the property is free from any kind of encumbrance.

Section 57(a) provides that any party to the sale may apply to the Court to obtain this relief. If the
court thinks fit, it may direct or allow the applicant to deposit in court, for the encumbrancer (who
has the charge over the property), a capitalised value of the periodic charge or a capital sum charged
on the property, together with incidental charges, sufficient to satisfy the charges or any interest
thereon. The court shall also order the deposit of any additional amount that it considers sufficient
for meeting any further costs, expenses, interest, or any other contingency, but it shall not exceed
one-tenth of the original amount unless otherwise directed by the court.
Section 57(b) states that the court may serve notice on the encumbrancer after the payment has
been made. The court can also dispense with such notice after recording its reasons. In addition to
that, the court may also declare the property to be free from any encumbrances and proceed to
issue an order of conveyance, or vesting order, proper for giving effect to the sale. Further, Section
57(c) deals with the order of transfer and distribution of the deposit to the encumbrancer.

It is also provided that an appeal is allowed from any declaration, order, or direction made in
accordance with this Section, just as if it were a decree. (Section 57(d)).

Under this Section, the jurisdiction is vested in either of the following Courts, as provided in
Section 57(e):

1. A High Court in the exercise of its ordinary or extraordinary original civil jurisdiction;
2. A District Court within the local limits of whose jurisdiction the property or any part thereof
is situated; or,
3. Any other Court notified by the State Government in the official gazette from time to time.

Recently, the Kerala High Court, in M.P. Varghese v. Annamma Yacob (2020), elaborated in great
depth on Section 57. The Court discussed the aims and objectives of this Section as well as
thoroughly explained its procedural mechanism. In this case, the property was divided among the
siblings through a partition deed with a clause stating that the brothers must pay Rs. 500 each to
their sister within a year. If they fail to do so, the sister will acquire a charge over the property. The
brother, who is the appellant in this case, entered a contract of sale with someone. He contends that
the respondent, in this case, the sister, is refusing to accept the payment because of which the
property is burdened with the charge, and consequently he is not able to execute the sale deed. The
respondent failed to show any reasonable cause for refusal of payment apart from personal reasons.
The Court noted that the amount of Rs. 500 alone stands charged on the property as a capital sum,
and the appellant has no further obligation whatsoever. Thus, it was held that the appellant is
entitled to a declaration under Section 57.

EASEMENT ACT

Meaning:

The Indian Easements Act of 1882’s Section 4 defines the term “easement.” According to Section 4’s
specifications, an easementary right is a privilege that a landowner or occupier has over another
piece of property that is not his own and that is intended to allow for the beneficial use of the
property. Because an occupier or owner cannot fully enjoy his own property without this right, it is
granted. It also includes the right to take action or continue to take action in relation to or with
regard to some other land, other than his own, for the pleasure of his own land.

The term “land” refers to everything that is permanently affixed to the soil, and the phrase
“beneficial enjoyment” refers to any amenity or necessity that is convenient, advantageous, or both.
The land for whose benefit the easementary right exists is known as Dominant Heritage, and the
owner or occupier referenced to in the provision is known as the Dominant Owner. While the land
on which the liability is placed is referred to as the Servient Heritage and the owner of the land upon
which it is placed as the Serviant Owner, respectively.

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.

The following six qualities are necessary for an easement:

(1) There must be a dominant and servient tenement;

(2) There must be an easement to accommodate the dominant tenement;

(3) The easement right must be held for the dominant tenement’s good enjoyment.

4) The dominant and servient owners must be distinct individuals;

5) The right must grant the dominant owner the ability to do and continue to do something, or to
prevent and continue to prevent something from being done, in, upon, or in respect of the servient
tenement; and

6) That something must be of a specific or clearly defined character and may be capable of serving as
the basis for a grant

In Nirmala Devi and Ors. v. Ram Sahai and Ors. AIR 2004 All 358, the court laid down that in view of
the definition of the Easement in Section 4 of the Easements Act the following materials are required
to be present in order to claim an easement right:-
(i) the right is in the owner or occupier of land as such;
(ii) it is for the beneficial enjoyment of that land;
(iii) it is to do or to continue to do something or to prevent or continue to prevent something being
done;
(iv) that something is in or upon or in respect of certain other land; and

(v) the other land is not his own.

Essentials of Easements:

1. Dominant and Servient Heritage

Two properties—the dominant and servient heritage—must exist in order to enjoy the privilege of
easement. This is because, according to the definition, it refers to the privilege that the owner or
occupier of one piece of property might exert over another person’s land in order to benefit from it.
A tradition of dominance and servitude cannot coexist. Therefore, it is crucial for two properties to
exist and for them to be distinct from one another.

2. Separate owners

Owners of the two properties must be distinct and not belong to the same person in order to
exercise the right of easements.

3. Beneficial Enjoyment
The purpose of an easement is to allow the dominant owner to benefit from it in a way that
incorporates both explicit and implicit advantages.

4. Positive or Negative

Easements can be beneficial or harmful. Former describes a right that allows the dominant owner to
act in order to exercise control over the servient owner’s property. The latter, however, indicates a
preventative action. A negative easement is one in which the dominant owner forbids or limits the
servient owner from performing some act or acts.

An owner of dominant heritage may perform an act or forbid the servient owner from performing
one under the terms of an easement, but he or she cannot obligate the servient owner to do so.
Only when two heritages are next to one another does the easementary right exist. It is a right in
rem, which is a right that can be used against anybody or anything. The dominant tenement is
always annexed to the right of easement. Re-aliena refers to a right over a servient tenement rather
than a right to one’s own land.

Classification of Easements

The Indian Easements Act of 1882’s Section 5 divides easements into the following categories:

Continuous or Discontinuous:The easements that can continue to be enjoyed without the

interference of human behavior or human action are known as continuous easements. There is no
human meddling, which gives the property a unique charm. Conversely, a right of easement for
which a man’s interference is necessary is known as a discontinuous right. It is important for this
kind of alleviation that a human action be performed on the servient heritage. Eg: (a) A right
annexed to B’s house to receive light by the window without obstruction by his neighbour A. This is a
continuous easement.(b) A right of way annexed to A’s house over B’s land. This is a discontinuous
easement.

Apparent or Non- Apparent:An apparent easement is one whose existence may be determined by
looking at a dependable sign. It can be seen with a close look and with reasonable foresight. It also
goes by the name express easement. A verification of a right’s existence is necessary. For instance, a
drain connected the properties of A and B, leading to an open yard. This is an apparent easement
that is discernible upon close scrutiny.

A non-Apparent easement, on the other hand, is the exact opposite of an apparent easement. An
inspection will not reveal this form of easement. There isn’t a really permanent sign. Although in
use, the right is hidden and is therefore referred to as an invisible easement. As an illustration, A’s
right was annexed to A’s land to stop B from constructing on his own home.

Difference between easement under the English and Indian Laws

1.Easement rights are not admissible in India for incorporeal rights; only corporeal property, such as
land, is eligible. However, under English law, an easement may also be asserted in relation to an
incorporeal right.

2.A right to an easement is a privilege without compensation under English law. It allows for the
exercise of a few rights in relation to the dominant tenement while prohibiting the dominant
tenement’s owner from taking a cut of the wealth generated by the servient legacy. Thus, profits a
prendere are not included in an easement. An easement also includes earnings a prendere under
Indian law. An easement also includes earnings a prendere under Indian law. It includes the right to
take pleasure in the income generated by another owner’s soil. The Explanation to Section 4 makes
this clear by stating that the phrase “to do something” includes removal and appropriation by the
dominant owner for the purpose of enjoying the dominant heritage in a beneficial manner of any
portion of the soil of the servient heritage, or anything growing or existing thereon.

3.According to Indian law, two tenements are not required to be next to one another because
“certain other land” that is not owned by the dominant owner is required for the servient legacy.
However, according to English law, the heritages must be close by