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Chapter 1

Moveable and Immovable Property

-Property has been defined in R.C. Cooper v. UOI-
-Property denotes-Every kind of interest or right hi!h has an e!onomi! !ontent.
"Movable property" shall mean property of every des!ription# e$!ept immovable property.
"Immovable property" shall in!l%de land# benefits to arise o%t of land# and things atta!hed to the earth# or
permanently fastened to anything atta!hed to the earth. &'eneral Cla%se (!t# 1)*+,
It !an be transferred from one pla!e to
Registration is optional as per the Indian
Registration (!t# 1*2).
0he 3ales and Central 3ales ta$es are
It !annot be transferred itho%t !a%sing e$tensive damage to the
property. 0he damage relates to the nat%re of the
Registration is !omp%lsory %nder the Indian Registration (!t# 1*2) if the
val%e of the property is more than Rs. 122.
0he property needs to be registered at the 3%b-Registrar4s offi!e.
0he appropriate stamp d%ty and the registration fee have to be paid.
-Types of properties-
&1, Moveable-
&5, Immovable-
&a, Land-anything or beneth or on s%rfa!e in its nat%ral state
&b, Benefits arising out of land (Profits a prendre)-0he essentials are-
&i, 0he person !laiming m%st have an interest in the land
&ii, It m%st be in respe!t of prod%!e or profit of the soil
Eg.-6 sells a forest to 1# the trees# rivers# minerals et! all forming part of the land or the benefits
to arise o%t of land# ill go ith it.
&!, Things attached to earth
&i, 0hings rooted in the earth-trees# shr%bs &e$!ept standing timber# groing !rops and grass,
&ii, 0hings imbedded in the earth-ho%ses# b%ildings
&iii, 0hings atta!hed to hat is so embedded for permanent benefi!ial en7oyment of that hi!h is
embedded &8o!trine of fi$t%res,-8oors# indos are atta!hed to the ho%se for permanent
en7oyment of ho%se.
&iv, Chattel atta!hed to earth or b%ilding-the degree# manner# e$tent and strength of atta!hment
of !hattel is taken into !onsideration.
-Doctrine of fixtures-3omething anne$ed to the freehold. 9hen a movable be!omes immovable
&a, uid uid plantatur solo solo credit-hatever is planted in the earth# be!omes the part of earth. It
applies only hen there is no !ontra!t to the !ontrary
&b, uid uid inaedificature solo solo credit-hatever is b%ilt into or embedded into or atta!hed to
soil be!omes part of the earth. .%t it doesn4t apply to trade fi$t%res.
-!ase on Doctrine of "ixtures-
&1, Bamdev Panigrahi v# Manorama $ai%
-Movable property-
-Property of every des!ription e$!ept immovable property &Right of orship# royalty# any ma!hinery
hi!h is not atta!hed to earth and !an be shifted from one pla!e to another# ( right to re!over
maintenan!e# 8e!ree for arrears# standing timber# groing !rops and grass.
-&tanding timber-( tree that has attained its f%ll age# height and dras minim%m s%stenan!e from earth:soil
and if it !rosses this age# its shape and !ondition starts de!reasing and deteriorating. It is ready for being !%t
and !o%ld be %sed for making vario%s items vi;. f%rnit%re et!. 9hether a tree is timber or not depends on the
!ategory of the tree and the !ommon p%rpose of s%!h !ategory. (ll the stat%tory definitions have e$!l%ded
standing timber# groing !rops and grass from the p%rvie of an immovable property. <ere the intention is of
great importan!e. If the transa!tion is the immediate# the ob7e!ts ill be movable. .%t if the !ontra!t regarding
s%!h ob7e!ts e$tends to many a year or if the oner of the trees is interested in f%rther vegetative groth# then
they ill be treated as immovable property. 0he transfer of trees standing on land does not amo%nt to the
transfer of the land also.
-Timber tree-( tree hi!h is groing and draing s%stenan!e from soil.
&1, 'nand Behera v# &tate- ( right to !at!h aay fish from Chilika /ake# over a n%mber of years as held to
be profit a prendre. &.enefits arising o%t of land,
&5, &hanta Bai v# &tate (&tanding Timber and Timber tree)-Right to enter land# !%t and !arry aay ood
over a period of 15 years as held to be immovable property. &.enefits arising o%t of land and 3tanding timber
and timber tree,
&=, &tate v# Titaghur Paper Mills !ompany%
-Tests to determine (hether a property is movable or fixture-
&a, Degree or mode of attachment and result of its detachment
&b, )b*ect or purpose of attachment
&!, By (hom it is brought or attached
Chapter 5
(ttestation &3e!tion-=,
'ttest-means to sign and itness any fa!t. (ttesting as per 0P( means a person has signed the do!%ment by
ay of testimony of the fa!t that he sa it e$e!%ted. 0he la re>%ires some a%thenti!ity of the do!%ment and
that it as e$e!%ted by a person4s free ill and %nderstanding and itho%t any for!e# fra%d or !oer!ion.
&1, there m%st be atleast to itness
&5, it is not ne!essary that all the itnesses m%st sign at the same time
&=, it is ne!essary that the itness m%st sign in the presen!e of the e$e!%tants
&?, it is ordinarily ne!essary that the itness m%se see
&a, the e$e!%tants sign:th%mb impression to the instr%ment4
&b, or some other person sign the instr%ment in the presen!e and at the dire!tion of e$e!%tant
&!, or the itness sho%ld re!eive an a!knoledgement of e$e!%tant4s signat%re:0.I. or of the person
signing on the behalf of the e$e!%tants
&@, 0he itness m%st sign after the e$e!%tion of the instr%ment
&A, 0he itness !an sign anyhere in the instr%ment and no pla!e is fi$ed as to here he sho%ld sign.
&+, (nybody !an sign ho is !apable of entering a !ontra!t
&), Animo Attestandi-0he itness m%st sign ith the intention of attesting the fa!ts and not 7%st mere signing
it. <e m%st !ertify that he a!t%ally sa the e$e!%tant sign the do!%ment.
&*, 0he pardanashin lady !an be a itness
&12, 0he itness sho%ld be independent-
&1, Padarath +al(ai v# $am ,arain (Pardanashin lady)-0here ere to pardanashin ladies ho ere the
mortgagers and ho did not appear before the 5 attesting itnesses hile e$e!%ting the instr%ment. 0he !o%rt
held that sin!e the 5 itnesses ere a!>%ainted ith the voi!es of both the ladies and on these gro%nds the
!o%rt held that the attestation done by to itnesses ere gen%ine and valid.
&5, M#L#'# -abbar v# +#.# &astri%0he se!%rity bond as signed by three itness# a soli!itor and the registering
offi!er. 5 o%t of the = itnesses and the soli!itor itnessed the do!%ment 7%st for the sake that they have
identified the e$e!%tants. 0he !o%rt held some !ondition to be f%lfilled for an a%thenti! attestation. 0he !o%rt
held that the registering offi!er !an also be a attesting itness if it !an be proved that he a!ted animo
attestandi. If it f%lfills all the !ondition of 3e!tion = 0P(# then the attestation is valid.
Chapter =
&ection / TP'%,otice-It is a knoledge of a fa!t
( person is said to have a knoledge of a fa!t henC-
&1, he a!t%ally knos the fa!t
&5, hen# b%t for his ishf%l abstention# from an in>%iry or sear!h hi!h he o%ght to have made# or gross
negligen!e# he o%ld have knon it &!onstr%!tive or imp%ter noti!e,
-Types of notice-
&1, 'ctual-(!t%al as the term spe!ifies# here the person in a!t%al possess the knoledge of the fa!t. It is on
the party of the imp%ting the noti!e to prove that the other party a!t%ally had the knoledge.
&5, !onstructive
&a, (illful abstention from an inuiry or search- ( sells a property to ..
&b, 0ross negligence-( took a loan from (.C bank and kept the title deed of his ho%se ith the bank
as se!%rity. Dor paying off the debt amo%nt# ( asks the bank to handover the title deed so that he !an
strike a good deal for selling his ho%se. 0he bank a!ting negligently gave the papers to (. ( again on
the same papers applied for loan to other banks. <ere the bank as in a 'ross negligent.
&!, $egistration as a notice-( sells his ho%se to . thro%gh a registered instr%ment. ( again tries to sell
the same ho%se to C. <ere# la imposes a d%ty on C to go to the registrar offi!e and !he!k the original
title of the property. If he doesn4t do so# his is to fa!e detrimental !onse>%en!es as he o%ld be
imp%ted ith !onstr%!tive noti!e of registration transa!tion.
&d, 'ctual Possession as a notice-( sells a property to .. 9hile C as the real oner and as in
possession of the property. ( !o%ld have made some in>%iries abo%t the .4s stat%s and his possession
in the property and by doing so he !o%ld have had the knoledge that the a!t%al oner as C ho is in
a!t%al possession of the property.
&e, Imputed ,otice-0he %nderlying prin!iple of this is that no person shall be alloed to get rid of the
do!trine by simply employing an agent.( person is deemed to have had noti!e of the fa!t if his agent
a!>%ired noti!e
&i, hile a!ting on his behalf
&ii, in the !o%rse of b%siness
&iii, to hi!h b%siness# the fa!t is material.
.%t if the agent by fra%d# !on!eals the fa!ts# the prin!ipal !annot be !harges ith noti!e.
&1, 'M! v# +a*i 'bdul 0afoor (!onstructive notice)-( be!ame insolvent. <is property as vested ith the
offi!er reven%e. M%ni!ipality asked for the d%es pending over the property. Re!eiver took the permission of the
!o%rt to sell the property to satisfy the d%es of m%ni!ipality. .%t the re!eiver a!ting negligently did nothing
afterards and the d%es ere remained %npaid for @ years. 0he person ho p%r!hased the property in a%!tion
asked the re!eiver abo%t any arrears b%t the re!eiver intentionally didn4t give any information. 9hen the person
!ame to kno abo%t it# the m%ni!ipality !ontended that he is to take the property s%b7e!t to all the defe!ts of
the title and do!trine of !aveat emptor applies here. 0he !o%rt held that the plaintiff !o%ld not have reasonably
tho%ght that the m%ni!ipality had not !ared to se!%re the payment. <ere in this !ase it is the m%ni!ipality has
a!ted negligently in not providing the information hen he asked for the same. 0h%s# the plaintiff !annot be
fi$ed ith !onstr%!tive noti!e.
&5, $am ,i(as v# Bano-
0ransfer of Property
&ection 1 TP'-0ransfer of property means here a living person !onveys property. It is !reating of a ne title
and passing on the property to some other living person or more living persons or to himself.
0he 8efinition in!l%des-
&1, /iving persons-in!l%des# !ompany# asso!iation# body of individ%als# to himself
&5, Property-onership# tenan!y# !opyrights# trademarks et!.
&=, 0ransfer-of either all the rights or interest in the property or transfer of some s%bordinate rights
D%t%re property !an4t be a s%b7e!t of transfer be!a%se of spe!%lation.
-2inds of transfer-3ale# mortgage# lease# gift et!.
-3ill% is not a Etransfer of propertyF.
Cases on 9ill-
&1, ,# $amaiah v# &# ,agra* (!ase explaining the difference bet(een Transfer of Property and 3ill)-( ill
as made in favo%r of nephe of (. 0he ill as !hallenged by the ido of ( thro%gh her brother. 3he
!ontended that the 9ill as got %p do!%ment and she is the one ho ill s%!!eed the property as a sole legal
heir of (. 0he nephe took an in7%n!tion and the !o%rt dire!ted the ido to maintain a stat%s >%o. Meanhile#
after some time she died and before her death she e$e!%ted a ill in favo%r of her brother. <er brother
!ontended in the !o%rt that he may be alloed to appear as respondent in pla!e of the ido. <e !ontended
that she had be>%eathed her property to him and his !hildren and therefore he is one of the !o-oners of the
property hi!h as the s%b7e!t matter. 0he nephe !ontended that the 9ill is in brea!h and defian!e of the
order of stat%s >%o. 0he !o%rt held that the 9ill and transfers are both different. In transfer# the property is
transferred inter vivos b%t 9ill only be!omes operative hen the person making it# dies. 0he transfer !reates a
ne title hile a ill is a mere spe!%lation. 9ill only reg%lates s%!!ession. 0he 0ransfer is immediate and
irrevo!able hile 9ill is revo!able and !omes into operation only after death. 0he !o%rt held the 9ill is not
same as transfer. ( 9ill in!l%des only those intention of a testator ith respe!t to his property hi!h he desires
to reg%late s%!!ession and it !reates no ne title# onership right and nor the possession is affe!ted. <en!e#
the ill is not the part of transfer of property# b%t it never !reated a ne title and he is liable to be released.
Chapter @
9hat kind of Property !an be transferred &3e!tion Aa# ?=,
-3hat may be transferred (&ection 4)
(lienation rei prefert%r 7%ri a!!res!endi hi!h means la favo%rs alienation to a!!%m%lation. (ny kind may be
transferred and the one ho is opposing the non-transferability sho%ld prove that %nder hi!h la or !%stom
the property !an4t be transferred
-&pes successionis- &ection 4a
9here the heir has got only a mere possibility to get the property i.e. here there is only a spe!%lation# the heir
!annot transfer the spe!%lated property to someone else. &1, <eir-apparent &5, relation obtaining lega!y on the
death of kinsman &=, any other mere possibility of like nat%re.
Eg-(# after death# leaves property orth !rores to ife .. <ere# C# the brother of ( is having a mere possibility
of getting the property. It !o%ld be possible only if . dies leaving no !hild behind.
-Doctrine of "eeding empty grant by estoppels (&ection%5/)
Transfer of property by any unauthorised persons (ho subseuently acuires interest in property
transferred-9here any person fra%d%lently or erroneo%sly represents that he is a%thori;ed to transfer !ertain
immovable property and professes to transfer s%!h property for !onsideration# s%!h transfer shall at the option
of the transferee# operate on any interest hi!h the transferor may a!>%ire in s%!h property at any time d%ring
hi!h the !ontra!t of transfer s%bsists. 0he general r%le is Enemo dat quod non habetF hi!h means no one
!an give to another# hat he himself does not have. If any s%!h transfer is e$e!%ted# then is s%!h !ase# %nder
this se!tion# prote!tion is given to the bonafide p%r!haser. 0his 3e!tion is partly based on 8o!trine of Estoppel.
Eg-( transfers a property of hi!h he has no right. <e does so fra%d%lently. . ho a!ted bonafide is the
p%r!haser. 3omeho# thro%gh some gift the property !omes to (. Bo# the !o%rt !an be estopped the !o%rt
!an !ompel ( to deliver the property to .. .%t it !o%ld be done only at the option of . hile the !ontra!t
0he 8o!trine also applies to mortgage# lease# !harge and e$!hange.
-6ssentials reuisites of &ection 5/
&a, Representation m%st be there from transferor# either fra%d%lently or erroneo%sly
&b, 0he do!trine doesn4t apply here the transferee already had the knoledge of the fa!ts or here both the
parties kne the fa!t
&!, 8o!trine doesn4t apply here the transfer is forbidden by la
&d, 0ransfer for !onsideration
&e, 0he option of transferee- 0he transferee doesn4t get the right over the property a%tomati!ally# b%t he has to
!laim it. 0here are other remedies also that the transferee has vi;. he !an file a s%it for brea!h of !ontra!t# file a
!ivil !ase for re!overy of p%r!hase-money# a !ase of !heating et!.
&f, 0he 8o!trine also doesn4t apply here the !ontra!t has finished or !an!elled-If the transferee has !an!elled
or rep%diated or here the money taken by the transferor has been paid ba!k# in s%!h a sit%ation the do!trine
doesn4t apply.
&g, 0ransfer valid at the option of the transferee-
(7) -umma Mas*id v# 2# Deviah%(Difference bet(een &ection 4a and 5/)-
3e!tion Aa 3e!tion ?=
It is for movable and immovable properties It is only for immovable properties
It is for all kinds of transfers It is for transfers ith !onsideration
Under this# there is no misrepresentation of fra%d by
the transferor b%t he transfers only the basis of spes
Misrepresentation or fra%ds is there on the part of the
transferor relating to the title of the property
It deals ith the transfer of a mere possibility It deals ith !onse>%en!es of misrepresentation
It is a r%le of s%bstantive la It in!l%des r%le of estoppel
0he stat%s of the transfer is void ab initio 0he stat%s be!omes void at the option of the
(8) 2artar &ingh v# +arbans 2aur-( hind% omen e$e!%ted a sale deed of the land belonging to her minor
son. <er son# on attaining ma7ority filed a s%it and !ontended that this sale as not binding on him and as
void. <C de!ided the !ase in his favo%r and ordered to give him possession. .efore taking possession he died
and property !ame to mother by s%!!ession &Class 1 heir,. 0he transferee# filed a s%it %nder 3e!tion ?= and
!laimed the property. 0he 3C held that for 3e!tion ?= to apply# to !onditions m%st be satisfied &1, (
misrepresentation either by fra%d or error by the transferor to the transferee that he is a%thori;ed to transfer
!ertain immovable property and a!!epts to transfer it for a !onsideration &5, hen the property in iss%e !omes
to the transferor# then at the option of the transferee# he is entitled to get the restit%tion# hile the !ontra!t of
transfer s%bsists. 3C held that the transferee has failed to take reasonable !ase to as!ertain hether the
transferor is !ompetent or not to make transfer on behalf on her minor son. 0he transferor as not misled. It is
the d%ty of the transferor to in>%ire# in hi!h he failed. 0h%s# first !ondition to 3e!tion ?= is not proved. D%rther#
3C said that the !ontra!t has to s%bsist# if the transferee ants restit%tion. .%t in this !ase# the !ontra!t as
void ab initio as the mother:transferor as not a !ompetent person to transfer the property on behalf of the
minor son.
3C !larified that as per 3e!tion ?=
&1, It doesn4t matters hether the transferor a!ted fra%d%lently or inno!entrly in making the representation#
hat matters is that if the transferee kne as a fa!t that the transferor doesn4t possess the title hi!h he
represents he has# then in s%!h a sit%ation 3e!tion ?= ill not apply.
8e!ision-3e!tion ?= ill not apply b%t 3e!tion A&a, ill apply and the mother s%!!eeds. 0he !ontra!t is a void
Chapter A
Restraints on 0ransfer
0he la favo%r alienation and not a!!%m%lation.
&ection 79-9here the property is transferred to the transferee by absol%tely restraining ith some !ondition
ith it vi;. that he !annot sell or that he !annot transfer the property. 3%!h !onditions are void.
-"eatures of-
&1, It is !alled !onditional transfer
&5, It talks only those !onditions hi!h are s%bse>%ent to the vesting of the interest in the transferee
&5, the absol%te restraint binds the transferee from parting from his interest in the property
&=, 3%!h !onditions are void
&?, 3%!h !onditions are not void hen
&i, here the !ondition is for the benefit of the lessor or those !laiming %nder him
&ii, here the !ondition is for the benefit of a omen &not being <ind%# M%slim or .%ddhist,
0he e$!eption to 3e!tion 12 is that the lessor !an impose a !ondition on the right to alienate of the lessee. It is
so be!a%se the onership right belongs to the lessor and it is his right to !hoose ho his tenant o%ld be and
this right !an4t be en7oyed by lessee.
0he other e$!eption is that then the !ondition if for the benefit of the omen.
&1, ( transfers . his property ith a !ondition that . shall never sell it. 0his !ondition is void and he may sell it
or keep it.
&5, ( transfers his property to his ife ith a !ondition that she o%ld have no poer to sell the property ith
his !onsent.
( right of transfer !omes ith the onership of the property and is inseparable. <oever there are e$!eptions
to this also. 0here are to kinds of restrainsC-
&1, 'bsolute $estraint-
&i, 0hese are void restraints as these takes aay the poer or alienation !ompletely or s%bstantially
Eg-( transfer his property to . on a !ondition that . shall never sell it# e$!ept for religio%s p%rposes.
&5, Partial $estraint-
&i, it imposes some restri!tion on the alienation b%t the transferee is s%bstantially free to alienate the
Eg.-( transfer . his property on a !ondition that he shall not sell the property for religio%s p%rposes. <ere the
!ondition is imposed for only religio%s se!tion and the transferee !an alienate to any other person other than
for religio%s p%rpose. 0h%s if the poer to alienate is restri!ted to one person only then it is absol%te and void.
-)ther examples-
&1, selling of the property at a fi$ed pri!e is void
&5, transferee shall not transfer the property by ay of gift is a partial restraint
&=, transferee shall not transfer the property for = years is a partial restraint and it o%ld be void:absol%te
restraint if the period is 52 years be!a%se is 52 years is a very long time.
&?, that the transferee shall not transfer the property to any member of a parti!%lar person4s family: or to a
parti!%lar person is a partial restrain and th%s valid
&1, $osher v# $osher-( transferred his property to his son . on a !ondition that if he ants to sell the property
d%ring the lifetime of his mother# the offer to p%r!hase sho%ld be given to her at a pri!e of =22 po%nds hi!h
as a pri!e very loer as !ompared to its a!t%al pri!e hi!h as 1@222 po%nds. 0he se!ond !ondition as
that if they ant to give the property on rent# they !an give it for only = years and after that the ido o%ld
have the option to o!!%py the premises for = years at a nominal rent and if the tenan!y e$!eeded to seven
years# again she o%ld be entitled to o!!%py the premises for a fi$ed rent. 0he !o%rt held that s%!h !ondition
on the right of the transferee are void !onditions and these are stopping him from alienating and en7oying the
property. 0he !onditions are absol%te in nat%re and are void.
&5, :oroastrian !o%op# +ousing &ociety Ltd# v# District $egistrar; !o%op# &ocieties-0he !ondition for
be!oming the member of the so!iety as that the person sho%ld be a parsi and the restri!tion imposed as
that they !annot sell their share of property to a non-parsi. One of the members as negotiating ith one of the
b%ilder4s asso!iation. <e forarded an appli!ation to the so!iety seeking permission to transfer the property to
the b%ilder4s asso!iation# non-parsi hi!h as re7e!ted. 0he !o%rt took the de!ision GGGGGGGGG
&=, 2# Munis(amy v# 2# .en<atas(amy-0here as a partition beteen parents# 3on ( and 3on .. 0here as
a !ondition imposed on the share of the parents that they shall en7oy their share for their life time and after
them# the share ill be e>%ally divided beteen 3on ( and 3on .. It is to be noted that no s%!h !ondition as
imposed in the shares of the sons. 0he !ondition on the parent4s share as an absol%te restraint be!a%se ith
s%!h a !ondition they ere not in a position to alienate their property. 0he !o%rt held that the !ondition as a
void !ondition.
-Restri!tion on the Dree en7oyment of property-
Restri!tion rep%gnant to interest !reated- &3e!tion 11,-(ny !ondition hi!h restraints the en7oyment of the
property hi!h is transferred absol%tely is void.
Eg-( !ondition that the transferee sho%ld alays give the land on a definite rent or that he sho%ld not !%ltivate
in a parti!%lar manner# are void !onditions.
3e!tion 12 3e!tion 11
It deals ith the !onditions imposed on the transfer It deals ith the !onditions imposed on en7oyment
It is appli!able to all transfers hether absol%te or
It is appli!able only hen the transfer is absol%te
It deals ith the poer to alienate It deals ith the en7oyment
0otal restraint is void 0he oner !an en7oy the property in any manner
E$!eption to 3e!tion 11
-0he transferor !an impose !ertain restri!tions on the transferee if-
&1, 0ransferor4s on land is ad7a!ent to the land transferred to the transferee
-&ection 59%!onvenants-0hese are the !onditions imposed by the transferor on the %se of land by the
transferee for the benefit of his ad7oining land. 0hese !ovenants are in riting !reating an obligation hi!h may
be positive or negativeC-
&1, Positive !ovenant &b%rden on land,-it stip%lates the performan!e of some a!t or payment of money
&5, Begative-It restri!ts some a!ts vi;. not to raise the b%ilding.
Chapter )
/is Pendens &Pending litigation,-&ection 18 (!omplete)
-lis pendence in short means that during the pendency of suit; the parties cannot transfer their
-Ut lite pendent nihil innoveteur =nothing ne( should be introduced in a pending litigation
-it aims to prevent m%ltipli!ity of s%its of pro!eedings related to the same land.
-9here a s%it or pro!eed is pending beteen to parties ith respe!t to an immovable property# and one of
the parties thereto sells or otherise transfers# the s%b7e!t matter of the litigation# then the transferee ill be
bo%nd by the res%lt of the s%it or pro!eeding# hether or not he had noti!e of the s%it or pro!eeding. 0his r%le
is knon as lis pendens.
Eg- ( and . are neighbo%rs. . en!roa!hed (4s land. ( filed a s%it and hile the s%it as pending . sold the
property to C. 9hatever the de!ision the !o%rt gives# hether in favo%r or against .# that C ill also be bo%nd
by that de!ision.
Essentials of the 8o!trine-
1, 0here m%st be penden!y of a s%it or pro!eeding
5, 0he s%it m%st be pending in a !ompetent !o%rt
=, 0he s%it m%st not be !oll%sive-0here m%st not be a fra%d. Eg.- ( and . agreed and !onspired that . o%ld
file a s%it against ( in respe!t of a ho%se in (4s possession and d%ring the penden!y of the s%it . o%ld sell
that property to C ith the belief that the sale-deed e$e!%ted in favo%r of C o%ld be set aside by the !o%rt
be!a%se of lis pendens and ill divide the amo%nt e>%ally. 0hey ork their plan. 0he de!ree goes in the favo%r
of .. Bo# the s%it being !oll%sive and the possession o%ld go to 8 and not ..
?, 0he right to immovable property m%st be in >%estion dire!tly and spe!ifi!ally
@, 0he property in >%estion m%st be transferred or otherise dealt ith by any to the litigation
A, 0he alienation m%st affe!t the rights of the other party
&1, -ayaram Mudaliar v# 'yyas(amy%0he property as a%!tioned be!a%se of some money de!ree. 0he
Harta had to repay !ertain debts on behalf of the family. ( member of the family of the Harta filed a s%it for
partition. 0he a%!tion took pla!e hile the s%it as pending. 0he !o%rt held that the a%!tion as hit by lis
pendens as the alienation made by the Harta ere fra%d%lent and not for the legal ne!essity and the share of
the !laimant shall remain %naffe!ted in the partition.
&5, Dalip 2aur v# -ee(an $am% preemption case%(proceedings before the &! are a continuation of those
in the original suit and that the principle of lis pendens as (ell as restitution shall apply to the
proceedings)%( filed a s%it for possession by ay of preemption against .. <e got possession by ay of
de!ree. 0he opposite party filed an appeal and the same as dismissed by <C. 0hey filed an appeal in 3C
hi!h as also dismissed. 0hey filed a spe!ial leave petition. 0he leave as granted and appeal as
a!!epted. 8%ring this time# ( sold the property to 6# ho raised an ob7e!tion that the de!ree of restit%tion !an4t
be invoked against him. 3C held that the pro!eedings before it are in !ontin%ation of those in the original s%it
and the prin!ipal of lis pendens as ell as restit%tion shall apply to the pro!eedings.
&=, 0ovind Pillai v# 'iyyappa 2rishanan %(&uit filed in the court (ith incompetent *urisdiction)-( disp%te
as pending in the !o%rt regarding some property. 0he plaint as ret%rned be!a%se the !o%rt in hi!h it as
presented as not having !ompetent 7%risdi!tion. .efore the s%it !o%ld be filed in a !ompetent 7%risdi!tion# the
person ho had the possession e$e!%ted a gift of the said property in favo%r of his ife and son. 0he >%estion
as that hether the gift deed o%ld be hit by lis pendensG 0he !o%rt held at the time hen the gift as
e$e!%ted# there as no s%it pending in the !o%rt related to the said property. <en!e# the gift is not hit by lis
&?, &0 "ilms exchange v# +#+# Mahara*a (Pla>a !inema case)-0he plaintiff gave Rs.5@2222:- to the
respondents against the se!%rity of bales of !otton. 0he respondents also e$e!%ted a registered-mortgaged
deed of pla;a !inema in favo%r of the plaintiffs to !lear the d%es. (s the plaintiffs ere %nable to re!over the
d%es# they filed a s%it for the sale of Pla;a !inema. 0he theatre as atta!hed to the de!ree against the
respondents. 8%ring the atta!hment# the respondent e$e!%ted an %nregistered lease deed in favo%r of some
!ompany and they !ontended that they !arried on the b%siness sin!e 1*?2. 0heir lease finished in 1*?A and a
ne registered lease as e$e!%ted in 1*@A. 0he time d%ring hi!h the property as in disp%te %nder a s%it in
the !o%rt as beteen 1*@5-1*A2,. 0h%s the registered lease as e$e!%ted d%ring the lis pendens. Co%rt
held# that sin!e the lease as registered d%ring lis pendens# the right of the tenants ere s%b7e!t to the
de!ision of the !o%rt.
&@, &#-# Mahaprabhu v# P#!# !hatter*ee-
Mortgage &3e!tion @),
( mortgage is a kind of se!%rity given by the debtor to the !reditor. 0he ob7e!t of a mortgage is to se!%re the
debt or other obligations. It prote!ts a !reditor# for even if the borroer be!omes insolvent the money !an be
reali;ed from the property given by ay of se!%rity.
%6lements of Mortgage-
1, 0ransfer of interest
5, 3pe!ifi! immovable property
=, Consideration for Mortgage
%Types of Mortgages-
1, 3imple mortgage (&ection 1?b)-Possession is not given to the !reditor b%t right to sell is given. 0he !reditor
has no right to !olle!t rent from the mortgaged property. If the !reditor ants to sell the property in defa%lt of
payment of his money# he has to take permission from the !o%rt first.
5, Mortgage on !ondition sale (&ection 1?c)-In this# the property is !onsidered as sold if !ondition set are met.
&a, On !ondition that on defa%lt of payment of the money on a !ertain date the sale shall be!ome
&b, If the money is paid on the date fi$ed# the sale shall be!ome void
&!, On !ondition that on s%!h payment being made# the b%yer shall transfer the property to the seller
In this kind of mortgage# the mortgagee has a >%alified onership.
=, Us%fr%!t%ary Mortgage (&ection 1?d)-Possession and en7oyment rights are given to the !reditor:mortgagee.
<e !an !olle!t rent and !an also ad7%st the same in the interest amo%nt of the mortgage money or in the
mortgage money itself or in both.
?, English Mortgage (&ection 1?e)-In this the title of the property is given to the !reditor:mortgagee by the
mortgagor. .y this he transfers the onership rights to the mortgagee and the if the payment of money is made
on the fi$ed date# the mortgagee has to transfer the property ba!k to the mortgagor# by giving him the title. In
this the mortgagee has the absol%te onership.
@, E>%itable Mortgage (&ection 1?f)-Only the property papers are given to the mortgagee or to his agent.
0here is no riting or other formalities re>%ired. 0his kind of mortgage is more !ommon here there is a
s%dden need of money felt by someone.
A, (nomalo%s Mortgage (&ection 1?g)-( mortgage hi!h is none of the above is an (nomalo%s Mortgage.
-Mode of Mortgage (&ection 1@)-
1, Registered instr%ment
5, 8elivery of possession
=, 8eposit of title deed
-$ight to redemption (&ection 49)%
Redemption means paying off the mortgage-money and getting the mortgaged property ba!k. It is the Right of
redemption that lies ith the mortgagor that on payment of the money# he gets his property ba!k.
3e!tion A2 saysC- 0he mortgagee has the right to redeem
&1, all the mortgage instr%ments and all the title deeds
&5, delivery of possession by the mortgagee
&=, a retransfer of the property &at the mortgagor4s !ost, or an a!knoledgement of the e$tin!tion of the
mortgagee4s rights.
-!log on redemption ()nce a mortgage al(ays a mortgage)%( mortgage is alays redeemable. (
mortgagor# at any time after he has paid the mortgaged money ba!k to the mortgagor# he has a right to get his
property ba!k &%ntil any de!ree of fore!los%re is passed in favo%r of the mortgagee in defa%lt of payment,.
Right of redemption is a stat%tory right of the mortgagor and no la or !ontra!t !an take aay this right. 0his is
be!a%se if the mortgagor is in need of money# then the position of the mortgagee is dominating and he !an p%t
!ertain !ondition hi!h !an ork as a !log on the redemption of the property. 0he la in s%!h !onditions#
prote!t the mortgagor and s%!h !onditions are !onsidered as void.
%!onditions (hat (or< as a clog and are voidC-
&1, If the !ondition is that in fail%re of payment of the mortgage money ithin a spe!ified time# the mortgagor
ill have no right:!laim over the mortgaged property and the mortgage-deed ill be !onsidered as a sale deed.
0his !ondition is a !log and void. .%t if the mortgagor himself e$e!%tes a sale deed in favo%r to mortgagee
after the spe!ified time is over# then that sale deed is a valid deed.
&5, /ong term of mortgages# is not a !log in itself# %nless it is proved that there as a fra%d or %nd%e infl%en!e
ith eviden!e of it. If it is proved# then the !ondition ill be void. (nd also# if the length is %nreasonable or
oppressive then it ill be a !log.
&=, 3tip%lation barring mortgagor4s Right of redemption after !ertain period-
&?, Restraint on (lienation
&@, Redemption restri!ted to mortgagor
&A, Penalty in !ase of defa%lt-
&1, 0angadhar v# &han<ar Lal (Long term clog)- 0he mortgage deed read EI or my heirs ill not be entitled to
redeem the property for a period of )@ years. (fter the e$piry of )@ years# e shall redeem it ithin A months
otherise e shall have no !laim over the mortgaged property and the mortgagee shall have no right to !laim
the money ba!k. 0his deed ill be !onsidered as a sale deed. 0he !o%rt held that long term mortgage is not a
!log in itself %nless it is proved that the mortgagee has not taken %nd%e advantage of the !ondition of the
mortgagor. 0here m%st not be any fra%d. If it is proved# then the mortgage is ith !log. It as held in that in the
present !ase it is !lear that there as no %nfair advantage taken by the mortgagee and )@ years is not a !log
in the !ir!%mstan!es of this !ase.
&5, P#2# 0ovind*i v# .#2# Purohit (Long term clog)-0he appellant made a mortgage deed in favo%r of
mortgagee and in hi!h it as stated that the d%ration of the mortgage is for ** years and the mortgagor !an
only !laim it after the e$piration of the said time. 0he mortgagee as given the f%ll possession of the land and
there as another !la%se in the deed that the mortgagee has the right to make str%!t%ral !hanges in the said
property and the mortgagor at the time of redemption has to pay all the e$penses in!%rred by the mortgagor on
any !onstr%!tion or repair ork done by him. 0he mortgagee !onstr%!ted a ne str%!t%re by demolishing the
old one. 0h%s# the Co%rt held that s%!h a !ondition is a !log on the mortgage and it makes !lear that the
mortgagee took %nd%e advantage of the !ondition of mortgagor. <en!e# the mortgagor is alloed to redeem.
&=, &# &ingh v# &#&ingh (Long term clog)-0he mortgagor as finan!ially tight. <e mortgaged a property for a
!onsideration of Rs. +222:- to the mortgagee. 0he !ondition of the deed as that the mortgage is for ** years
and he also en7oyed %s%fr%!ts of the said property. In order to arrange Rs. +222:- for the payment of the
mortgage# the mortgagor sold some part of the mortgaged property to one (. 0he mortgagee ref%sed to give
possession of the property. It as held by the !o%rt that the mortgagee as in a dominating position and took
advantage of the plight of mortgagor by imposing a !log of ** years and not only this# he also kept on draing
%s%fr%!ts from the said property for the last 5A years. It as de!lared a !log.
&?, &#0# Dhula v# & L Te*shi-(ny provision in the original mortgage-deed to the effe!t that if the debt is not
paid at the proper time# the mortgagee shall be!ome the oner of the property is void# and indeed the !o%rts
treat as void any provision hi!h !log the right to redeem i.e. either makes redemption %nd%ly diffi!%lt or
provides that the mortgagee shall retain some right affe!ting property after the debt has been redeemed.
-$ight of foreclosure of sale (&ection 4A)%
Chapter 1@
'ifts &3e!tion 155,
&ection 788-( gift is a transfer of the onership in an e$isting movable or immovable property made
vol%ntarily and itho%t !onsideration.
.la!kstone-'ifts are alays grat%ito%s# grants are %pon some !onsiderations or e>%ivalent.
1. 0o partners m%st be there
&a, 8onor-m%st be !ompetent-ma7or &a tr%stee and minor !annot make a gift,.
&b, 8onee-may be of any age b%t if minor then g%ardian takes on his behalf
5. 'ift !an be made only of the e$isting property# gifts of any f%t%re property is not valid.
=. Property !an be movable or immovable# Corporeal or in!orporeal# a!tionable !laims# gift of mortgage
?. 'ift m%st be given vol%ntarily and no fra%d or misrepresentation sho%ld be there
@. 'ift sho%ld be itho%t !onsideration otherise it ill not be !onsidered as a gift
A. (bsol%te interest:life interest:limited interest
+. (!!eptan!e
&a, of gift by the done is ne!essary otherise it ill be !onsidered as a void gift.
&b, sho%ld be given ithin the lifetime of the donor. &&if the donee dies before giving a!!eptan!e then
the gift is void,.
&!, !o%ld be oral or ritten# e$press or implied.
&d, if the donee or anybody on his behalf# had not a!!epted the gift d%ring the lifetime of the donor#
mere registration of the instr%ment:do!%ment ill not validate it.
). 0he gift deed m%st be attested by to persons. In !ase of movable property the instr%ment m%st be
registered and in !ase of movable property it may be registered. ( gift of immovable property itho%t
registered instr%ment is invalid even if the possession is given to the donee. (lso# the gift of immovable
property if made orally is invalid %nless registered. If an instr%ment is registered after the death of the donor
and itho%t the !onsent of his legal representative# then also it is valid. 3e!tion 15= does not affe!t the
!ompleted ingredients of a !ompleted gift %:s 3e!tion 155 b%t it is 7%st a safety meas%re to ens%re that the gift
as a valid gift. (&ection 78/)
.oid gifts%
&1, D%t%re property
&5, 'ift ith !onsideration
&=, 9here gifts are made of immovable property itho%t registered do!%ment
&?, 9here donee dies before giving a!!eptan!e
&@, 'ift !onsisting of both e$isting and f%t%re property is void (&ection 785)
&A, If gift is made to to persons and one of them ref%ses to a!!ept# then the gift is void for him only.
&+, 'ifts made for %nlaf%l p%rpose
&), 'ift by a person in!ompetent to !ontra!t
&*, 9here %nder an agreement beteen the parties# the gift is revo!able# holly or in part# at the mere ill of
donor (&ection 784)
)nerous 0ifts%gifts that !omes ith obligations. (&ection 78A)
&1, If (# gifts to .# a gift !onsisting of shares of 6 and 1 !ompany. 6 !ompany is in profit and 1 in loss. 0he .
has no other option than to a!!ept the !omplete gift b%t he !annot a!!ept a part of it i.e. he !an4t a!!ept only
the shares of 6 !ompany and ref%se to take the shares of 1. <e has to a!!ept the !omplete gift.
&5, .%t if ( makes to separate gifts of shares of 6 and 1 !ompany# then the donee !an a!!ept one and ref%se
the other.
&uspension or $evocation of gift can be done in only t(o conditionsB%
&1, In !ase of ind%!ement or misrepresentation
&5, Revo!ation by (greement- 0he !ondition of the agreement sho%ld not be illegal or immoral and sho%ld not
be rep%gnant to the estate. .oth# the donor and the donee m%st agree at the !ondition in the agreement.
(7) Tila Be(a v# Manu Be(a-0he donor e$e!%ted a gift deed in favo%r of the donee on a !ondition that he
o%ld look after and serve her d%ring her lifetime. 0he donee left her and remarried. 3he !an!elled the gift.
0he !o%rt said that it as only a pio%s ish of the donee to look after the donor and only on this !ondition the
gift !annot be !an!elled. 0he !o%rt also said that firstly# there as no agreement beteen the both regarding
the revo!ation# se!ondly this sho%ld not depend on the ill of the donor. <en!e# the gift !an4t be revoked.
(8) 2artari v# 2e(al 2rishan (undue influence)-+2 year old ailing ido lady. 8a%ghter took !are of her. <er
!ollaterals took her to some pla!e and made her sign a gift deed in their favo%r and they also got it registered.
8a%ghter !ame to kno abo%t it. Meanhile the lady died. 0he !ollaterals took the possession of the property
as soon as she died. 8a%ghter filed the s%it and !ontended that the gift deed as taken by fra%d and %nd%e
infl%en!e. 0he !o%rt held that it is !lear by the !ond%!t of the !ollaterals that the signat%res of the lady ere
taken by fra%d and %nd%e infl%en!e as 7%st hen she died# they took the immediate possession of the property
in iss%e. <en!e# the gift is void.
D)!T$I,6 )" P'$T P6$")$M',!6
0he 8o!trine of Past Performan!e# based on prin!iple of e>%ity# developed in England and as
s%bse>%ently added to the 0ransfer of Property (!t# 1))5 via the (mendment (!t of 1*5*. In la of
!ontra!ts &for e.g.# a !ontra!t for sale,# no rights pass to another till the sale is !omplete .%t if a
person after entering into a !ontra!t performs his part or does any a!t in f%rtheran!e of the !ontra!t#
he is entitled to reimb%rsement or performan!e in !ase the other party drags its feet.
3e!tion @=( says that if a person makes a agreement ith another and lets the other person a!t on
the behalf of the !ontra!tI s%!h a person !reates an e>%ity himself that !an not be resisted on the
mere gro%nds of absen!e of formality in the eviden!e or !ontra!t of s%!h a transfer. 0h%s# if the
!ontra!t has not been registered or !ompleted in the pres!ribed manner# the transferor !an still not go
against the transferee or anyone !laiming %nder him. <oever# the deed sho%ld not be %nsigned or
%nstamped. Bothing in this se!tion affe!ts the rights of a transferee for !onsideration even if he had
no noti!e of !ontra!t of part performan!e.
Ill%strationC ( !ontra!ts ith . to sell his plot for 6 amo%nt of money. ( a!!epts the advan!e from .
toards the sale of the plot and hands over the possession of the said plot to .. (fter some time# . is
ready to pay the remaining sale amo%nt b%t ( ref%ses to a!!ept the same. D%rther ( asks . to hand
over the plot ba!k to him.
<ere . is ready to perform his part of the !ontra!t b%t ( is not. In s%!h a !ase# . !an bring a !ase
re>%iring spe!ifi! performan!e from (. It does not matter that the sale as not registered.
(s per la# a transfer of immovable property val%ed over Rs. 122 has to be registered. .%t it as
believed that stri!t !omplian!e may lead to e$treme hardships espe!ially here one party has already
performed his part in the !onfiden!e that the other party ill honor the agreement. If s%!h registration
or other formalities have not taken pla!e# the do!trine of part performan!e ill be appli!able. If s%!h a
transferee takes possession of the property# he !an not be evi!ted d%e to an %nregistered !ontra!t.
0he se!tion is a defense as ell as a right that helps prote!t the possession against any !hallenge. It
tries to prevent fra%d on the mere basis of ineffe!tive eviden!e of the transfer. 0he se!tion does not
!onfer a title %pon the transferee in possession b%t it imposes a stat%tory bar on the transferor.
Equity looks to the intent rather than to the form
6&&6,TI'L& )" T+6 D)!T$I,6 )" P'$T P6$")$M',!6
a, 0here m%st be a ritten !ontra!t for transfer of an immovable property signed by or on behalf of
the transferor. 0he do!trine !an not be applied if there is a void agreement or no agreement.
b, 0here m%st be !onsiderationI
!, 0he !ontra!ts sho%ld give o%t the terms of the transfer ith reasonable !ertaintyI
d, 0he transferee m%st have taken possession as a res%lt of this !ontra!t or !ontin%ed in possession
if he as already in possession of the propertyI
e, 0he transferee m%st have done some a!t in f%rtheran!e of the !ontra!t. (!ts done prior to the
agreement or independent of it !an not be deemed to be part performan!e of the !ontra!tI and
f, 0he transferee sho%ld have performed his part of the deal or be illing to perform it.