Law of Property

Long Questions & Answers

1Q. Explain the term transfer of property and its essential requisites, what properties
cannot be transferred ?

Ans. The term transfer of property have been explained u/s 5 of T.P act. It has been
given broad meaning under T.P act. Transfer of property means creation of interest
of other person or persons in immovable property. Transfer of property includes
Sale, Mortgage, Lease, Gift , Exchange and actionable claim. Partition of joint family
is also called s transfer of property.

Essential requisites of transfer of property :-

1. Transfer of immovable property should be in writing and not oral transaction and it
is called as execution of the document.

2. There should be minimum two parties and they are called as transferor and
transferee. There can be more no of transferors and transferees. In same transfer of
property.

3. Both the party should be competent. A party should not be minor or unsound mind
person. Transferee can be minor but transferor should not be minor.

4. There should be description of the property specified in the document to avoid

mistake in identity of the property

5. All terms and conditions agreed by and between the parties have to be mentioned.

6. Stamp duty have to be paid according to stamp act.

7. Any immovable property which is above 100rs have to be registered

8. There should be signature of transferor and transferee

9. It should be attended by two or more witnesses

10. There should be free consent of transferor and transferee

11. In transfer of property there is a principle ‘Accessory follows principal’ it means

when main property transferred then all attached things in the property are
automatically transferred even though if it is not mentioned in the document.
What properties cannot be transferred:-

There are 9 kinds of properties specified u/s 6 cannot be transferred. There are some
rights which are covered under definition of immovable property.

1. Spec Succession (hope of succession) :- when there is death of head of the family
then all heirs have no right to one heir to transfer whole property. He can only
transfer the share which he may get in to property.

2. Right to Entry :- if there is one passage to make entry in the property then all heirs
can use it. But such package cannot be transferred.

3. Easement Right :- When any property is used for 20yrs or more period without any
disturbance then it becomes easement right. Nobody can transfer easement right.

Eg : there is passage between 2 houses used by the people for 20yrs or more period
then that passage cannot be transferred.

4. Right of Maintenance:- is also immovable property and it cannot be transferred by

one party to other party.

5. Right to Sue:- There is right to sue in the court which can be enjoyed by relevant
party and it cannot be transferred relevant party can give power of attorney which
is authority gives to other party to perceive a case.

6. Inami Land:- It is gifted land given during period of Britishers. Inami land can be
used and enjoyed by the heirs but it cannot be transferred.

7. Jagir Land:- During period of kings gifted land was given as a jagir land and it
cannot be transferred. It can be enjoyed by generation to generation and they are
called as jagirdar.

8. Religious Institutions:- It includes temple, mosque, church. It can be used for

religious purpose but cannot be transferred.

9. Public Land or Office:- There are public offices, Institutes or land which cannot be
transferred such as railway station, bus stand, airport, police station. Government
can take policy decisions about such land.
2Q. Explain the rule against perpetuity with relevant exceptions?

Ans. Perpetuity means future interest. Rule against perpetuity in restriction on transfer
of property . any transfer against rule of perpetuity is invalid. This detail has been
given from Sec 14-18 of T.P act which includes following points:-

1. Transfer to Unborn Person :- According to this provision no property can be

transferred in favour of any person who is likely to take birth or unborn person.
This rule can be called as ‘Birth first and transfer later’. Separate property can be
kept for such child but transfer is allowed only after birth. Any property is
prohibited from transfer in name of non existence person.

It is specified because of 2 reasons:-

 It is not known whether child is male or female.
 There is no name to the child and transfer cannot be done without name.
2. Transfer of Dear Person:- No property can be transferred in name of dead person.
There is no existence of dead person and transfer is prohibited . if transfer has been
done after that there is death of transferee then also transfer is valid. A transfer
cannot be valid if transferee is no more or dead on the date and time of transfer.

3. Conditional Transfer:- There is allowed on reasonable and lawful condition called

as conditional transfer. Such condition should be effective only during life period of
transferee. Any condition beyond life period of transferee is invalid according to
rule against perpetuity.

Eg : Father transfer a house as a gift to daughter on condition that she should not
make further transfer during her life period if he mentions that after her death
property should go to ‘X’ and after that to ‘Y’ and after that to ‘Z’ then it is invalid.

4. Transfer of Income:- If property is transferred to one person and if part of income

from property to other person then such period can be 18yrs. Transfer beyond 18yrs
period is invalid according to rule against perpetuity. Document can be renewed
after 18yrs.

Eg : Father transferred a house to 1st daughter as a gift and mentioned that she
should par 10,000rs per year from income to other daughter. This period of transfer
should not be more than 18yrs at a time according to rule of perpetuity.

Exceptions to Rule against Perpetuity:-

1. When there is transfer in name of legal person such as company, corporation,
institution then it is allowed. In such case transfer is 1st and company is later.
2. When there is mortgage of immovable property then this rule does not apply and
redemption is allowed at any time.
3. This rule does not apply when there is transfer by lease because maximum 99yrs
period lease is allowed.
4. Partition of joint family property can be done at any time and this rule does not
apply.

5. This rule does not apply in case of ‘Pre-emption’ meaning of this term is property to
be sold to person having blood relationship or to neighbours. And after that if they
are not ready then to third party.

3Q. Define Mortgage and its kinds ? what are the rights of mortgage and mortgagee ?

Ans. When security of immovable property is given to borrow loan then it is called as
mortgage and for movable property is called as Pawn or pledge.
Transferor called as ‘Mortgagee’ and the loan borrowed is called as mortgage
money and document enacted between then is called as ‘Mortgage deed’ and the
property is called as ‘Mortgaged property’.

Eg : ‘A’ gives security of his house in a bank and borrow 1 lakh rupees loan in this
transfer ‘A’ is mortgage and bank is mortgagee detail of mortgage is form Sec 58-
100 of Transfer of property act 1882.

Essential Requisites of Mortgage:

(a) Mortgagor and mortgagee should be competent person and such person should
not be minor or unsound min person.
(b) There should be free consent of both the parties.
(c) It should be in writing and not oral.
(d) Security is given only for loan transaction.
(e) Stamp duty have to be paid according to amount of loan.
(f) It should be attested by two witnesses.
(g) Document have to be registered.

Kinds of Mortgage:

There are six kinds of mortgages:-

1. Simple Mortgage:- In this mortgage there is execution of mortgage deed in

mortgage deed description of the property is given which is mortgaged after
repayment of loan mortgagor can get back his mortgage deed which is
documentary evidence in possession of mortgage.

2. Mortgage by Condition Sale:- In this mortgage property is transferred as a sale in

name of mortgage after repayment of loan amount mortgage have to retransfer
property in name of mortgagor. Because such clause is mentioned in mortgage
deed. If there is no retransfer then remedy is available from court to mortgagor. It is
better security to mortgagee.
3. Usufructuary Mortgage:- In this mortgage in addition to execution of document
mortgagor gives possession of property to mortgagee. After repayment of loan
amount mortgagee. Vacate the possession and hand over to mortgagor. If there is
no repayment of loan done completely there is right of mortgagee to continue
possession of mortgaged property.

4. English Mortgage:- In this mortgage a date is fixed for repayment of loan amount
and after expiry of the date mortgagee have the right to for fit the property. Because
such clause is mentioned in mortgage deed. In India this mortgage is not popular
because there is no limitation period for redemption of mortgaged property.

5. Mortgage by Deposit of Title Deeds:- In this mortgage there is execution of

mortgage deed and also original documents of the property and given in
possession of mortgagee. After refund of loan amount mortgagee return the
documents to mortgagor. It is convenient because mortgagor cannot transfer
property because he has no original documents.

6. Anamolous Mortgage:- This mortgage is different from above mortgages.

Eg : A farmer has taken 1 lakh rupees loan and for adjustment of loan amount he gave
possession of agricultural land for cultivation to mortgagee for 1 year period.
Mortgage can get income from the land and adjust his loan amount.

Rights of Mortgagor:-

(a) It is important right of the mortgagor to make repayment of loan amount and
take back his property. It is called as ‘Right of Redumption’.
(b) When there is death of mortgagor then right of redumption pass on to his heirs.
(c) There is right of mortgagor to continue his possession except ‘Usu Fructuary’
mortgage.
(d) There is right of mortgagor to pay the loan amount completely or partly
according to terms of agreement.
(e) There is right of mortgagor to claim excess money from mortgagee after
adjustment of loan amount.

Rights of Mortgagee:-

(a) There is right of mortgagee to give notice to mortgagor to settle is account. this is
called as ‘Right of Fore Clause’.
(b) It is right of mortgagor to use the property if it is ‘Usu Fructuary’ Mortgage.
(c) Mortgagor have right of lean over the documents till repayment of loan amount.
(d) Mortgagee have right to claim back interest on mortgaged loan as specified in
mortgaged deed.
(e) There is right of mortgagee to file a recovery suit and obtain decree to sale
mortgaged property to recover loan amount
4Q. Explain the term ‘Lease’ and its requisites what are rights and liabilities of lessor
and lesee and various grounds of termination of lease?

Ans. Lease means transfer of possession of immovable property for specific period.
Transferor is called as ‘Lesser’ and transferee is called as ‘Lessee’ and property is
called as ‘Lease Property’ and consideration is called as ‘Rent and Premium’ and
document enacted between them is called as ‘Lease deed’.

Eg : ‘A’ transfer his shop to ‘B’ for 5 yrs period on 10,000rs rent. This is called as
lease in which ‘A’ is lesser and ‘B’ is lessee.

Essential Requisites of Lease :-

1. Lesser and lessee should be competent persons. And such persons should not be
minor or unsound mind person.
2. It should be in writing called as lease deed.
3. There should be description of lease property.
4. There should be fixed term of transfer of possession called as lease period.
5. There should be consideration called as rent or premium.
6. Purpose have to be mentioned in lease deed and it should be lawful purpose.
7. Lease deed have to be signed by lesser and lessee.
8. It should be attested by at least 2 witnesses.
9. If lease period is one year or more than lease deed have to be registered and less
than one year registration is optional.
Rights of Lesser:-

1. There is right of lesser to fix the rent of lease property.

2. Lesser have right to fix other terms and conditions such as deposit, purpose of
lease.
3. Lesser have right to mention about payment of electricity, municipal tax and other
taxes.
4. There is right of lesser to take remedy to vacate the property if lessee misuses it.
5. Lesser have right to mention the condition of increase in rent.
6. There is right of lesser to make renewal of lease at his desire after expiry of lease
period.
7. There is right of lesser to issue the notice after expiry of lease period to vacate
lease property.
8. Lesser have right to claim damages caused by lease to property.
9. Lesser have right to file a suit for eviction against the lease and also claim
damages after expiry of lease period.
Rights of Lessee:-

1. Lessee have right to use and enjoy the lease property.

2. If lesser makes any interference in lease property then lessee can take remedy of
injunction to prove it.
3. When there is death of lessee then right of possession of lease property pass on to
his heirs during continuation of lease property.
4. There is right of lessee sublease complete or part of the property to any other party
unless contrary terms are mentioned in the agreement.

5. There is right of lessee to give notice to lesser and vacate lease premises even before
expiry of the lease period. In such cases lesser have right to claim damages from the
lessee. Which he caused because of discontinuation of lease done by lessee before
expiry of lease period.

Termination or Determination of the Lease :-

Following are the grounds on which lease can be terminated by either party or by order
of the court:-

1. When there is expiry of the lease period then lesser can issue notice to lessee to
vacate the lease premises because of the lease is done by execution of fresh lease
deed, which is discretionary power of the lesser.

2. When lease property is used by lessee for different purpose.

3. When lessee makes default to pay the rent for 8months or more period.

4. When lessee make violation of terms and conditions specified in lease deed.

5. When lessee causes unreasonable damage to lease property.

6. When it is conditional lease and lease can be vacated on happening or not

happening of the conditions.

7. When impossibility arises such as lease property collapsed or destroyed or it goes

master plan.

8. When lessee surrender the property voluntary for any reason.

This is detail about lease, essential requisites of lease, rights of lesser and lessee from Sec
105-117 of Transfer of property act.
5Q. What do you mean by gift and essential requisites and kinds of gift and what
grounds gift can be revoked?

Ans. Gift means transfer of possession and ownership of movable or immovable

property without consideration. Transfer is called as ‘Donar’ and transferee is
called as ‘Donee’ and property is called as ‘Gift property’. And document executed
between them is called as ‘Gift Deed’.

Essential Requisites of Valid Gift:-

1. Donar should be competent person and he should not be minor or unsound mind
person.
2. There should be free consent of the donar.
3. Done should not be unsound mind person. But he can be minor.
4. It should be the property of the donar or he should have right to transfer it by gift.
5. Movable property can be given as a gift orally, but in case of immovable property.
It should be in writing called as gift deed and document have to be registered.
6. Purpose of gift should be lawful.
7. Gift can be given to natural person or legal person.
8. Gift have to be made out of love and affection.
9. Gift is permanent dedication of property without consideration.
10. There should be acceptance of gift by donee.

Kinds of Gifts:- There are three kind of gifts

1. Valid Gift.
2. Conditional Gift.
3. Onerous Gift.

1. Valid Gift:- In Valid gift donar completes all required formalities. If it is movable
property then there is transfer of possession given by donar to donee. If it is
immovable property then there is transfer of possession and also execution of
document in favour of donee called as gift deed. And this document have to be
registered purpose of such gift is also lawful. Valid gift cannot be revocked.

2. Conditional Gift:- When gift of property done by imposing condition then it is

called as conditional gift. Such condition should be lawful and not immoral or
illegal or impossible. Validity of the gift depend on fulfilment of the condition by
donee. If condition is not fulfilled then donar have right to revoke the gift.

Eg : Father make a gift of a house to daughter and statet that she should perform
marriage in one year period this conditional gift. And the condition is marriage
within 1 yr period from date of execution of gift deed. If she fails to fulfil the
condition then father can revoke the gift.
There fore validity of such gift is depend on fulfilment of the condition. Gift cannot be
valid if condition is impossible or immoral. Such as father impose condition that
daughter have to perform marriage with ‘X’ who is already dead, if ‘A’ mentions that ‘B’
should live in adultery with him then this immoral condition and gift cannot be valid.

3. Oner-ous Gift:- This gift is done with obligation or legal duty to be performed by
the donee. It is specified in gift deed. If obligation is not complied then donar can
revoke the gift.

Eg : Father transfer property to daughter as a gift and mentions that she should take care
and provide maintenance to Donar as long as he is alive or to pay. 1 lakh rupees
loan taken by him to ‘X’ then this is ‘Oner- ous Gift’.

Revocation or Termination of Gift:-

Following are the grounds on which either Donar or his heirs or by other of the court gift
can be revoked or terminated :-
 When donar is incompetent person such as minor or unsound mind person.
 When it is not the property of the donar or dispute of the property is pending
in the court.
 When it is conditional gift and donee has not fulfilled the condition.
 Before performing required formalities such as transfer of possession,
registration of document in favour of donee.
 When there is death of donar before completion of legal formalities.
 When obligation or legal duty not complied by donee.
 When purpose of the gift is illegal or immoral. Such as gift made to a
prostitute can be revoked by heirs of donor. When purpose is immoral.
 When there is impossibility to fulfil the condition.

This is detail about gift, requisites of valid gift, kinds of gift, grounds or revocation gift
from Sec 122-127 of Transfer or property act.
6Q. Explain the provisions of vested transfer and contingent transfer specified under
Transfer of property act?

Ans. Transfer of property includes creation of interest in the property specified u/s 5.
There are two types of detail of these transfer have been given from Sec 19-34 of
transfer of property act.

1. Vested Transfer:- It is also called as absolute transfer or unconditional transfer.

Vested transfer includes following point:

(a) Written Transfer:- This transfer is in writing and description of property is

given in the document.

(b) Transfer of Possession:- In vested transfer there is transfer of possession

done by transferor to transferee.

(c) Registration of Document:- In vested transfer document is

registered in favour of the transferee.

(d) Payment of Stamp Duty :- In vested transfer sufficient stamp duty is paid
according to stamp act and valuation of the property.

(e) Unlimited Rights:- In vested transfer unlimited rights are given to transferee
such as to use and enjoy the property to retransfer the property and to
destroy the property.

Therefore in vested transfer unlimited rights are given to transferee.

2. Contingent Transfer:- In this transfer there is condition or happening or not

happening of the event such conditions have to be mentioned in the document.

Eg : Father transfer a house as a gift to daughter and mention the condition that she
has to perform the marriage within 1year period this is conditional transfer depend
on event or condition of marriage.

Contingent transfer includes following points:

(a) Condition Clause:- A clause have to be added in the document which is

executed between transferor and transferee.

(b) Lawful Condition:- Any condition can be imposed which should be lawful. It
should not be illegal or immoral or impossible.

(c) Consent of Transferee:-There should be consent of the transferee to accept the

condition.

(d) Revocation:- When condition is not fulfilled by the transferee then there is right
of transferor to revoke the transfer.
Kinds of Condition:- There are 2 kinds of condition as follows:
i. Condition Precedent
ii. Condition Subsequent.

1. Condition Precedent:- Precedent means ‘Prior’. In condition precedent condition

have to be fulfilled first and property will be transferred afterwards. There is no
scope to revoke the property because condition is already fulfilled.

Eg : Father mentions in the document that house will be given as a gift to daughter
after performance of her marriage. This is condition precedent. After performing
marriage she can claim gift of the property.

2. Condition Subsequent:- In condition subsequent property is given first and

condition have to be fulfilled afterwards. If condition is not fulfilled then transferor
can revoke the transfer of property.

It includes following points:

 Document : There is execution of document and condition is specified to be

performed afterwards.

 Lawful Condition: Any condition mentioned should be lawful and not illegal
and immoral.

 Revocation :- If condition is not fulfilled then transferor can revoke the transfer.

Eg : Father transfer a house to daughter and mentions that she should take care and
provide necessaries during his life period. This is condition subsequent. If daughter
fails to fulfil the condition to provide maintenance to transfer then he can revoke
the transfer.

Distinguish between vested and contingent transfer.

Vested Transfer Contingent Transfer
In this transfer there is no condition. In this transfer there is a condition.

In this transfer there are unlimited
rights in the property.
Transferee can retransfer the property.
This transfer cannot be revoked.
Vested transfer cannot be contingent
transfer.
In this transfer there are limited rights to
transferee.
Transferee cannot retransfer the property
till fulfilment of Condition.
This transfer can be revoked if condition is
not fulfilled.
Contingent transfer can be vested transfer.
After fulfilment of condition.
7Q. Define ‘Will’ and its kinds and provisions?

Ans. Will means declaration in writing done by authorised persons to dispose his
property among the heirs or relatives or legal persons. a person who makes a ‘Will’
is called as ‘Testator’ and property given under will is called as ‘Legacy’ and the
person who gets property under the will called as ‘Beneficiaries’ or ‘Legatee’ ,,
purpose of will is to avoid disputes or litigations among the heirs about the
property. Testator can fulfil his intention to transfer of property.

Essential Requisites of Will:

1. Will should be in writing and not oral.

2. Will to be made by the person who has legal authority to execute the will.
3. There should be free consent of Testator.
4. There should be certainty or clarity in the language of the will.
5. There should be attestation of 2 persons on the will.
6. There is no need to pay any stamp duty to execute a will.
7. Registration of the will is optional, not compulsory.
8. Will is effective only after death of testator.
9. During life period there is right of testator to with draw or alter the will.

Kinds of Will:- There are eight kinds of will as follows:

1. Oral Will :- This will is executed by illiterate person. He make oral statements and
any other person takes it into writing. He should read the will before testator and
obtain his thumb impression or signature. Attestation of 2 witnesses is necessary on
this will.

2. Holograph Will :- This will is executed in own hand writing by the testator with his
signature. There is no need of attestation on this will. because hand writing of
testator can be proofed.

3. In officious Will :- In this will property is given to nearest relatives or legal persons
in addition to heirs.

4. Mutual Will :- This will is executed by two or more persons separately they have
knowledge about content of will of each other. In this will each testator gives
property to heirs of other testator in there mutual understanding.

5. Joint Will:- This will is executed by the co owners having ownership of same
property. There should be signatures of all the owners on this will.

6. Contingent Will :- In this will testator mentions a lawful condition which is

binding on beneficiary. If father mentions in the will that his house to be given to
daughter when the performs her marriage. This is conditional will.

7. Duplicate Will:- In this will 2 or more copies of the same will is in the house and in
 possession of reliable persons. If one will is destroyed then other will is effective.

8. Privileged Will:- This will is written as death bed by the testator when there is
possibility of death. He makes oral statements and another person takes into
writing. It should be attested by 2 or more witnesses in making this will medical
expert have to certify that his mental condition is normal then only will is valid.

Revocation of Will:
A will can be revoked by testator during his life period or by the heirs who can challenge
the will in court on reasonable grounds and court can order that the will is invalid. These
grounds are as follows:
 When testator change his mind then he can withdraw the will or substitute other
will.
 When mental condition of testator is abnormal or he was unsound mind person.
It has to proofed by producing medical record.
 When will is executed under threat or pressure or influence or corrosions and
there is no free consent of the testator.
 When testator have no right to make the will or property is under dispute.
 When condition in the will is illegal or immoral or impossible.
 When legatee did not fulfil the condition.
 When the will is uncertain or there is no clear meaning of the sentences. Such as
my property to be given to middle son and there are 4 sons and middle son
cannot be decided.
This is detail about will, kinds of will, grounds of will under Indian succession act 1925.

8Q. Define ‘Easement’ and its kinds and methods of acquisition and loss of easement
under easement act?

Ans. Easement means rights acquired by a person or persons or general public relating
to property or any other right. Easement right is recognised and protected under
easement act 1882. When any person or persons take illegal possession of property
or use any right peacefully and without any disturbance for specific period then it
is protected under Easement act. Therefore under easement act some illegal acts are
also legalised. After some period when it is enjoyed for a specific period or
unlimited period.

It is having principle which is applicable to protect the right is ‘Law always helps
vigilant and not the Dormant’ it means ‘law helps active person and not lazy
person’. Every body should be aware about the right and enforce it without causing
reasonable delay. Therefore separate act has been enacted to protect easement
rights and it is called as ‘Easement Act 1882’ passed during British period.
Methods of Acquisition of Easement:
There are four methods by which easement can be acquired.

1. By Prescription:- When any person or persons illegally occupy possession of

immovable property and continue it for 20 years or more period without any
disturbance or filling case in the court then it is right of prescription of the
possessor. This illegal possession is legalised and protected under easement act. In
case of public or government property this period is 60years.

Eg : ‘A’ is owner of a plot ‘B’ occupied the plot and continued possession for 20 yrs
or more period then it becomes right of prescription of the possessor.

2. By Use:- When any immovable property is used by the people for 20yrs or more
period then it is easement right of the people. This right cannot be deprived after
20yrs. Otherwise people can take remedy of injunction. In case of public property
period is 60yrs. Any use of property which is public

Nuisance cannot be protected under easement act public nuisance cannot be

legalised.

Eg : There is a passage between houses of ‘A’ and ‘B’ which is used by people to go
from one side to other side if it is used for 20yrs or more period then easement right
is declared which cannot be prohibited afterwards.

3. By Necessity :- there are some easements which are recognised and protected
because of necessity of the people.

Eg : Every owner of agricultural land have to provide passage to the people because
it is necessary to go to other side. Agricultural lands are adjacent to each other and
it is necessary to provide some passage and people acquire easement act.

Eg : In villages where there is no water supply then people get easement right to
carry drinking water from nearest well because it is easement of necessity.

4. Customary Easement:- There are some customary easement which are recognised
and protected.

Eg: Right of the priest of the temple to take income from agricultural land in name
of temple is customary easement.

Eg: Right of mutawalli in wakf property is also a customary easement.

Loss of Easement:- There are four methods of loss of easement.

1. Discontinuous:- When any easement right is discontinued by the person or

persons then there is loss of easement. Any easement to be used in continuity
otherwise there is loss of easement.
 2. Fulfilment of Necessity :- When necessity is fulfilled by the act of government
then easement is terminated.
Eg : People carry water from the nearest agricultural well of a private owner.
Government made arrangement to supply water by tap there is termination of
easement.

3. By Alternation:- When there is alternation or construction done by owner then

easement right is terminated.

Eg : ‘A’ is owner of a plot and people park there vehicles on the plot later on owner
constructed a building on his plot there is no right of people to park the vehicles
because owner have done alternation in the property.

4. By Order of the Court:- When anybody have occupied the land or using the
land illegally owner filled a case and after no of years court passed the order in
favour of owner. Easement right of possessor is terminated because of order of the
court.

Eg: ‘A’ have occupied the plot illegally belonging to ‘B’ later on ‘B’ filed a case
against ‘A’ for eviction of the plot and court gave judgement and ordered possessor
to vacate the plot. Any easement right of possessor is terminated because of order
of the court.

This is detail about easement and methods of acquisition and loss of easement
under easement act 1882.

Short Questions & Answers

1Q. Doctrine of Election?

Ans. Election means to chose one thing among the two. Doctrine of election have been
specified u/s 35 of Transfer of property act. When there are co owners of same
property then one of the owner have also right to sell the property. Other co owner
have right of election he can make payment of sale price to the buyer and take back
his property. If he is not interested in the property then he can claim his share in the
amount. Therefore election includes either claim the share in the amount or claim
the property. He cannot claim amount as well as property.

Eg : ‘A’ and ‘B’ are co owners of a plot. ‘A’ sells the plot to ‘X’ for 1 lakh rupees
in such case doctrine of election is applicable for ‘B’. He can make repayment of 1
lakh rupees to the buyer and claim back his plot. He can also claim his share of
50,000 thousand rupees in the price of the plot.

Doctrine of election is applicable when there are more owners of same property. It
should be done in writing by the co owner election have to be done with in one
year from the date of transfer. When doctrine of election is applicable then it cannot
be revoked afterwards.
2Q. Kinds of Properties?

Ans. There are three kinds of Properties.

 Movable property
 Immovable property
 Intellectual property

1. Movable Property:- It is not attached or fixed and it can be shifted from place to
place when property is transferred then transferee have no right over movable
property. Eg : Table, Chair, Table fan and Vehicles.

2. Immovable Property:- It is fixed to the wall or the land or roof. Immovable

property cannot be shifted unless converted into movable property and some
properties cannot be converted, this property pass on to buyer when there is sale of
main property.

Eg : Tree, Borewell, Cealing fan, doors and windows.

3. Intellectual Property :- It is having no characteristics of actual property. But it is

recognised and protected under law.

Eg : Trademark, design, copyright and patent right.

3Q. Transfer by Ostensible Owner?

Ans. Ostensible owner means just like owner recognised under law u/s 41 of Transfer of
property act. The right of ostensible owner to transfer the property by sale,
mortgage, lease or any other method. This is the transfer of ownership without
having full rights or absolute rights to the transferor.
Eg : Directors of the company are ostensible owners and not absolute owners of the
property of the company under T.P act directors of the company have ostensible
right to transfer property of the company.
Eg: Trustees have right to transfer trust property because they are ostensible owners.

4Q. Fraudulent Transfer?

Ans. It means any transfer of property done with intention to commit fraud or to decide
the transferee detail of fraudulent transfer have been given u/s 53 of T.P act. There
is power of the court to declare fraudulent transfer as invalid or voidable and order
the seller to refund the amount taken from buyer with damages. Fraudulent
transfer is also crime under IPC.
Eg : ‘A’ is not owner of a plot but he pretends as owner and sell the plot to ‘B’ it is
fraudulent transfer done by ‘A’ to ‘B’
Eg : ‘A’ declared himself as insolvent in order to avoid claim of creditors and attachment
of property he sells it to others. This is fraudulent transfer done by ‘A’ with
intention to make default and court can declare it as invalid and ineffective.
5Q. Doctrine of Part Performance (Sec 53a)?

Ans. Part performance means payment done partly and not completely. Part
performance have also legal validity. Sec 53a have been added by amendment to
encourage settlement. In part performance there is transaction of property and
stamp duty is not paid according to valuation of the property. Government can
collect stamp duty after valuation with in 3yrs period. Part performance is also
valid transfer and it cannot be revoked.

Eg : ‘A’ sold flat to ‘B’ for 10 lakh rupees buyer have done registration of the flat for
5 lakh rupees. It is part performance of stamp duty government authorities can
make valuation of the property with in 3yrs period and issue notice to buyer to pay
the stamp duty according to valuation and the transfer is valid. If buyer makes
default to pay the stamp duty then government have right to increase the value of
property which buyer purchased by 20% and buy the property. Transfer cannot be
declared invalid even though there is part performance of stamp duty.

Eg : ‘A’ have mortgage his plot and borrowed 5 lakh rupees loan from bank he is
unable to repay loan amount and bank makes settlement and accept 4 lakh rupees
for settlement of the loan. This part performance is valid and bank cannot recover 1
lakh rupees loan amount afterwards.

6Q. Sale and Agreement to Sale?

Ans. The term agreement to sale and the sale have been defined u/s 54 of the transfer of
property act. Following are the points of difference between sale and agreement to
sale.

Agreement Sale
1 In agreement to sale all 1 In sale all formalities are completed.
formalities are not completed.

2 In agreement to sale it create 2 In sale it create right in REM.

right in Persunom.
3 There is no need to register 3 Sale deed have to be registered.
the document.
4 Risk of the property is with seller. 4 Risk of the property pass on to buyer.
5 Taxes have to be paid by seller. 5 Taxes have to be paid by buyer.
6 There is more opportunity to 6 There is less opportunity to revoke the transfer.
revoke the transfer.
7Q. Marshalling and Contribution?

Ans. When mortgagor have mortgaged more no of properties with same mortgagee then
rule of marshalling is applicable. According to this rule mortgagor have right to
make redemption of any property and period of standing loan is not applicable.
Therefore marshalling is the right of mortgagor.

Eg: A mortgaged his house and borrowed 5 lakh rupees loan in a bank and again he
mortgaged his shop and borrowed 2 lakh rupees loan and also mortgaged his plot
and borrowed 1 lakh rupees loan. According to marshalling A have right of
redemption of any property by repayment of respective loan amount.

Contribution is applicable when there are more no of mortgages it is right of the

mortgagee.

Eg : A mortgaged his house for 10 lakh rupees loan B,C & D made adjustment of loan
amount B gave 5 lakh rupees loan, C gave 2 lakh and D gave 3 lakh rupees loan
when they get interest from the mortgagor then every mortgagee can claim interest
in proportion called as contribution.

Therefore marshalling is the right of mortgagor and contribution is the right of

mortgagee.

8Q. Actionable Claim (Sec 130-137)?

Ans. Actionable claim is also relating to loan transaction. It is such claim which is burden
on whole property of the debtor. It is such claim which is burden on whole
property of the debtor. In mortgage loan is taken only on particular immovable
property by giving its security and in pledge. There is security of movable property.
In actionable claim there is security of whole property.

Therefore actionable claim there is security of whole property. Therefore actionable

claim is better security for creditor and greater risk for debtor. Actionable claim
includes following points:-
 There is execution of document between creditor and debtor.
 There is no description of particular property but debtor gives security of whole
property belonging to him.
 Documents have to be registered.
 It is burden on movable and immovable property.
 It is financial burden on present and future property.
 Creditor can obtain decree for recovery of loan amount and attach property partly
or completely till he recovers complete loan amount.
  If there is recovery of loan amount by attachment of part of the property then he
should not attach other properties.
Therefore actionable claim is also relating to security of whole property of the debtor
in loan transactions.

9Q. Charges (Sec 101-104)?

Ans. Charges means burden on the property even though there is no contract between
parties. When any property is transferred by sale but there is some charge on the
property then it is liability of new buyer to make payment. When there is charge on
property then relevant party or department can make recovery from the new owner
even though he has not done any transaction.

Eg : ‘A’ have borrowed 1 lakh rupees loan by giving security of his house from
‘X’ without repayment of loan amount he has sold house to ‘B’. There are legal right
of ‘X’ to recovers loan amount from ‘B’ even though he has not given loan to him.
Because it is charge on property.

Eg : ‘A’ is owner of a house and he did not pay electricity bill, water bill, municipal
tax for several years and sold house to ‘B’ all these department have right to recover
arrears of tax’s or bills from the transferee or new owner. Because it is charge on
property.

10Q. Codicil (Sec 65)?

Ans. Codicil means supplement to ‘Will’ codicil is also having legal validity. When any
testator have written a will and property given to heirs is mentioned in the will
then codicil is applicable for his subsequent acquisition additional movable or
immovable property then he can execute codicil. In codicil or supplement to will he
mentions detail about subsequent property to be given to the heirs. It is in
continuation to earlier will. After death of testator main will and codicil both are
enforceable.

Therefore purpose of codicil is to add supplement to the will. And there is no need
to revoked or withdraw earlier will.

11Q. Doctrine of Lis-Penders (Sec 52)?

Ans. Meaning of Lis-Penders is that any property whose dispute is pending in the court
should not be transferred by any party by sale or mortgage or lease or any other
method. Purpose of Lis-penders is to avoid disputes relating to immovable
property.

Eg: ‘X’ and ‘Y’ have filled a case relating to a plot which is pending in the court.
 According to doctrine of Lis-penders ‘X’ or ‘Y’ have no right to transfer the plot
during pendency or proceedings in the court.

If ‘X’ transfer the plot and judgement goes in favour of ‘Y’ then again buyer may file
cases against the transferor. Because there is municipality of litigation ‘Lis-Penders’
does not apply in following circumstances.
 When case has not been filed in the court having Jurisdiction.
 When case has been filed but it has been withdrawn by the party.
 When case has been decided by the court and appeal has not been filed by
opposite party if appeal is filed then also lis-penders is applicable because is
pending in appellate court.
 When there is compromise between the parties about dispute of property.

Therefore purpose of lis-penders is to prevent transfer of immovable property if

dispute is pending in the court to avoid multiplicity of litigation relating to same
property.

12Q. Doctrine of Feeding Grant by Estopple (Sec 43)?

Ans. When anybody transfer the property without having absolute right but
subsequently he acquires absolute right in same property. Then he cannot revoke
earlier transfer according to Doctrine of Feeding Grant by Estopple.

Eg : ‘A’, ‘B’, ‘C’ are heirs in a joint family property. ‘A’ sells part of the property in
anticipation that he may get same property when there is partition of family
property. After partition he gets same property in succession then he cannot revoke
earlier transfer and estopple is applicable against the transfer.

If share of that property goes to other person then this rule does not apply and
buyer can challenge the transfer and court may declare it as invalid and order the
seller to refund the amount taken from buyer with damages.

This point was held in a leading case Jamuna Prasad v/s Mohandas.

Plaintiff sold 5 acres of land when he was in joint family and there was no partition
of the property. When there was partition of the property he got same land as heirs
of the family, he filed petition against buyer in the court to revoke to transfer on the
ground that he was not owner when sold the land court dismissed the petition by
applying the rule of ‘Doctrine of Feeding Grant by Estopple’ and declared sale as
Valid transaction.