Download property law llb thrid year and more Essays (university) Property Law in PDF only on Docsity!
TILAK MAHARASHTRA VIDYAPEETH
Mahadeo Nalawade
LLB-5 Semester
TRANSFER OF PROPERTY ACT 1882
Q1 Define Immovable property.
Ans : The Immovable property is property that cannot be moved from one place to another. It is generally connected to the ground or land on which it sits.The term immovable property also includes the land. Immovable property, things rooted in the earth as in the case of trees and shrubs, are immovable property both within the General Clauses Act and the Transfer of Property Act, but in the latter, ‘standing timber’, ‘growing crop’ and ‘grass’ though rooted in earth are not included, Mahadeo v. State of Bombay AIR 1959 SC 735 (740): (1959) Supp 2 SCR 339. [General Clauses Act, 1897 (10 of 1897), s. 3(26)] Includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.
Q2-What is competency of person to transfer property?
Property Laws
th
Home About Us PMC Service BungalowConst Precast Projects Construction Management Careers Contact Us
Ans : As per section 7 of Transfer of Property Act 1882, Every person competent to contract and entitled to transferable property, or authorized 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. Every person is competent to contract according to Section 11 of Indian Contract Act as follow:-
Age of majority : In India the age of majority is regulated by the Indian Majority Act (Act IX of 1875). Every person domiciled in India attains majority on the completion of 18 years of age.
Sound Mind :A person is said to be of sound mind for the purpose of making a contract if at the time when it, he is capable of understanding it and of forming a rational judgement as to its effect upon his interests. A person who is usually of unsound mind but occasionally of sound mind may make a contract when he is of sound mind. Similar is the case with a person who is generally of sound mind but occasionally of unsound mind.
Q3-What is English Mortgage?
Ans : The type of mortgage usually prevalent in England does not contain a personal covenant and in that sense the expression English in the definition of English Mortgage is not appropriate. The legislature seems to have employed this expression on the basis that transfer of property to the mortgagee with the specified proviso is of the essence of the mortgage as understood in England, at least before Law of Property Act, 1925. Grant of an estate in fee with the condition that if the mortgagor shall repay the mortgagee shall reconvey the estate to the mortgagor was the usual form of a mortgage deed in England. However, a personal covenant is not found in mortgages in England but it has been made a part of English Mortgage in India. The three essential ingredients for a mortgage to be English mortgage are:-
- The mortgagor binds himself personally to repay the mortgage debt on a certain day.
- The property mortgaged is transferred to the mortgagee and
- This transfer is subject to the proviso that the mortgagee will re-transfer the property to the mortgagor upon payment of the mortgage money on the date fixed for repayment.
Q4-Whether transfer by ostensible owner is valid?
Ans : Yes but the essential conditions for the valid transfer by an ostensible owner are that:
- a person must be the ostensible owner of a property.
- he must be such owner with the consent express or implied of the real owner;
- the transferee must purchase the property from such ostensible owner for consideration.
- before taking the transfer, the transferee must take reasonable care to ascertain that the transferor has power to make the transfer in other words, he must act in good faith.
Q5-Define licence under Indian Easement Act 1882.
Contingent Interest : Section 21 of the Transfer of Property Act, 1882 states about Contingent Interest. It is an interest which is created in favour of a person on a condition of the happening of a specified uncertain event. 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 ‘X’ 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 ‘X’. He shall get the property only if he gets 90 % and when the condition is fulfilled.
Characteristics of Contingent Interest
- A) This interest is entirely dependent upon the condition. It only happens when the condition is fulfilled.
- B) 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.
- C) 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.
Q7-Doctrine of part-performance.
Ans : Section 53A was enacted in 1929 by the Transfer of property(Amendment) Act 1929 and is based upon the equitable doctrine of part performance in English law. It is also known as ‘equity of part-performance.’
Section 53A
- Section 53A of the act imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession.
- It disentitles the transferor from seeking possession from the proposed transferee in possession.
- For instance, if the transferor tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of Section 53A of the act against the transferee.
Meaning of the Doctrine
The doctrine of part performance of contract is based on the general doctrine of prevention of fraud. It is meant to protect the transferee who has taken possession, spent money in further improvements. When a transferee has, in the faith that the transfer would be completed according to the law, taken possession, it would be inequitable to allow the transferor to treat the transferee as trespasser.
Essential conditions for Application of Section 53A
In Vasanthi v. Venugopal[5], the Supreme Court restated the essential conditions necessary for application of this section:
- A written contract for the transfer of an immovable property. The most important limb of Section 53A is the pre-existence of the contract.
- The transferee takes possession of the property under this contract. The transferee should have taken the possession of the property; or the transferee in possession already should continue in possession and should have done some act in furtherance of the contract.
- The transferee has either performed his part of contract or is willing to perform the same. It is an essential condition that the transferee must be willing to perform his part of contract.
If these requirements are fulfilled, the transferee is entitled to claim, under this section, that he should not be evicted/dispossessed from the property.
Exception to Section 53A
The rule laid down in this section has no application/or affect the right of a subsequent transferee for consideration who has no notice of the contract or of the part performance thereof.
- No title or interest in property: Section 53A does not affect the ownership rights of the proposed transferor who remains full owner of the lands till they are legally conveyed by sale-deed to the transferee.
- Passive equity; no right of action: Section 53A merely provides a right of defence, it can be used only as a shield not as a sword. The scope of this section is therefore ,limited because no right of action is available to transferee.
- In Section 49 of the Registration Act, in the proviso ; the words, figures and letter “or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882 ,” shall be omitted.
- The provisions of this Amending Act (Act 48 of 2001) came into force with effect from 24.9.2001. This Amendment Act is not retrospective.
Q8- Rule against perpetuity
Ans : The rule against perpetuity as dealt under section 14 makes such a transfer (of property) inoperable where condition is laid down for vesting of interest after the life of the last preceding interest holder/s and beyond the minority of the ultimate beneficiary. It is important to ensure free and active circulation of property both for trade and commerce as well as for the betterment of the property. There are people who want to retain their property in their own families from generations to generations. This will be a loss to the society because it will be deprived of any benefit arising out of that property. Free and frequent circulation is important and the policy of the law is to prevent the creation of such perpetuity. Thus, the object of section 14 is to see that the property is not tied- up and to prevent creation of perpetuity.
Perpetuity may arise in two ways –
- I) by taking away from transferee his power of alienation (such a condition has been made void under S.10 of the Act)
- II) by creating future remote interest (which has been prohibited under S.14 of the TP Act)
Exceptions : The provisions of Section 14 shall not apply in the following cases –
- Transfer for public benefit – Where property is transferred for the benefit of the people in general, then it is not void under this rule. E.g. for the advancement of knowledge, religion, health, commerce or anything beneficial to mankind.
- Covenants of Redemption – This rule does not offend the covenants of redemption in mortgage.
- Personal Agreements – Agreements that do not create any interest in the property are not affected by this rule. This rule applies only to transfers where there is a transfer of interest.
- Pre-emption – In this there is an option of purchasing a land and there’s no question of any kind of interest in the property, so this rule does not apply.
lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease,
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
Q10-Type of easement
Ans : An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.
Kinds/ Types of Easement – There are four types of easement Section. 5 of Easement Act deals with the types of easement. It provides that the easements are either continuous or discontinuous ,apparent or non apparent.
- A) Continuous Easement – A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
Illustration – A right annexed to B’s house to receive light by the windows without obstruction by his neighbor A. This is a continuous easement. A continuous easement is extinguished when it is totally cease to be enjoyed as such for an unbroken period of 20 years.
- B) Discontinuous easement – A discontinuous easement is one that needs the act of man for its enjoyment.
Illustration -A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
- C) Apparent easement – An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.
Illustration- Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.
Q11-Charge
Ans : A charge means an interest or right which a lender or creditor obtains in the property of the company by way of security that the company will pay back the debt. Charges are of 2 types :-
1) Fixed Charge : Such a charge is against a specific clearly identifiable and defined property. The property under charge is identified at the time of creation of charge. The nature and identity of the property does not change during the existence of the charge. The company can transfer the property charged only subject to that charge so that the
charge holder or mortgage must be paid first whatever is due to him before disposing off that property.
2) Floating Charge : Such a charge is available only to companies as borrower. A Floating charge does attach to any definite property but covers the property of a circulating and fluctuating nature such as stock-in-trade, debtors, etc. It attaches to the property charged in the varying conditions in which happens to be from time to time. Such a charge remains dormant until the undertaking charge ceases to be a going concern or until the person in whose favour charge created takes steps to crystallise the floating charge. A floating charge on crystallisation becomes a fixed charge.
Q12- Condition Precedent and Condition Subsequent
Ans : Section 25 of the Transfer of Property Act, 1882 provides for Conditional Transfer. It means that any transfer that happens on the fulfilment of a condition that is imposed on the other party for the transfer of property. For example, A agrees to transfer his property to B if he gets selected for a job. The requirement of A for B to get a job is called a condition. For any kind of a conditional transfer to be valid, the condition that is imposed should not be:
- Prohibited by law,
- Should not be an act that involves fraudulent acts,
- Should not be any act that is impossible,
- Should not be an act that is termed as violative of public policy,
- Should not be immoral,
- Any act that incurs any harm to any person or his property. For example, X transfers a property ‘B’ to Y stating that he shall murder Z as a condition for the transfer. Such transfer is void as the condition is prohibited by law.
Types of Conditions on Transfer : There are three specific types of conditions that are imposed in a transfer of property and there are some more types provided. All these conditions should also satisfy all the requirements of a condition as mentioned in Section 25 of the Transfer of Property Act, 1882.
Condition Precedent : It is given in Section 26 of the Transfer of Property Act, 1882. Any condition that is required to be fulfilled before the transfer of any property is called a condition precedent. This condition is not to be strictly followed and the transfer can take place even when there has been substantial compliance of the condition. For example, A is ready to transfer his property to B on the condition that he needs to take the consent of X, Y and Z before marrying. Z dies and afterward, B takes the consent of X and Y so the transfer can take place as there has been substantial compliance. These facts were from a case of Dawson v. Oliver-Massey.
In the landmark case of Wilkinson v. Wilkinson, the condition where one party was required to desert her husband for the transfer to go through, this was held by the court as invalid as it was against public policy.
Condition Subsequent : It is given in Section 29 of the Transfer of Property Act, 1882. Any condition that is required to be fulfilled after the transfer of any property is called condition subsequent. This condition is to be strictly complied with and the transfer will happen only after the completion of such condition. For example, A transfers any property ‘X’ to B on the condition that he has to score above 75 percent in his university exams. If B fails to achieve 75 percent marks then the transfer will break down and the property will revert back to A. Although it is an essential requirement that the condition needs to lawful and if it is not then the condition will be held as void and the transfer will not break down and will be finalized. For example, A transfers the property to B on the condition that he shall murder C. This condition is void and hence transfer will go through and the property will be kept by B.
The mortgagor is liable to pay the lease rent of the mortgaged property if the mortgaged property is under the lease. The mortgagor must comply also with the terms and conditions of the lease deed if the mortgaged property is under lease deed; and
The Mortgagor is liable to comply also with the terms and condition of the previous mortgage deed if any relating with the same property.
Rights Of Mortgagee:- Following are the important rights of mortgagee:
- Selling Right:- If borrower fails to return the loan in time then the mortgagee has the right to sell the property of the mortgagor. But it will be sold and getting decree from the court. Property will be sold by auction.
- Shortage of Money Case:- After selling the property if amount is less than the loan, the balance can be recovered from the person by getting the decree from the court.
- Usufructuary Case:- In this case mortgagee has no right to sell the property and to obtain the decree from the court. The banker can retain the possession till the recovery of the loan.
- Refusal of Debt:- If a borrower refuses to return the loan or he is unable to pay the debt then the lender can get a foreclosure decree from the court.
- Adjustment of Payment :- The banker has a right to distribute the payment received after the sale of property according the principal amount, interest and other charges.
- Joint Suit:- If the mortgagor is more than one person then suit will be filed against all of them if the loan is not returned
- Sale of Private Property :- In case of private property the mortgagee will issue at least 3 months’ notice to the mortgagor before selling the property.
Liabilities Of Mortgagee:- When property is in the possession of the mortgagee then it has the following duties or liabilities:
- Property may not be damaged.
- No alteration is allowed in property.
- The property must be insured.
- Property must be kept secured.
- Rent of the property must be collected.
- Govt. Revenue must be paid.
- Property must be kept clear from all dues.
Q14-Define Easement. Explain the modes of acquisition of easement.
Ans : The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an easementary right is a right possessed by the owner or occupier of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted because without the existence of this right an occupier or owner cannot fully enjoy his own property. An easement is a right which the owner of a property has to compel the
owner of another property to allow something to be done, or to refrain from doing something on the survient element for the benefit of the dominant tenement. For example – right of way, right to light , right to air etc.
Modes of Acquisition of Easements
- Express Grant : The easement can be acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it compulsory for it to be in writing and duly registered.
- Implied Circumstances : Easementary right can be acquired in implied circumstances in the following ways-
- Easement of Necessity : Section 13 of the act deals with this. This consists of the circumstances where the owner or occupier cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience. For example– X sells his land to Y for agricultural purpose. Here, Y cannot access his land without passing through Z’s land (his neighbour). Thus, this is an easement of necessity. When a joint property is partitioned amongst various coparceners and if right of easement over one share of the property is essential for the enjoyment of the share of the other coparcener then latter shall be entitled to easement.
- Quasi Easements : In the case of a person transferring his property to another person then-If an easement is continuous, apparent and necessary to enjoy, then in such a case the transferee shall be entitled to it, If such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right to such easement over property transferred by him. In case of partition of the property of the joint family, if an easement is continuous, apparent and necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to such a right of easement. Easements are quasi as those are arising out of circumstances,i.e. When common properties are converted into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of right of easement. For example– P’s right attached to Q’s house to receive air and light through a window without any obstruction by his neighbour. This is a continuous.
- Prescriptive Easements : Section 15 provides for this type. Following are the requisites
- Right must be definite and certain,
- Right must have been independently enjoyed without any agreement with the servient owner,
Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.
- Customary Easements :An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town having a right to bury the dead in a particular area or riparian right to use water.
Q15-Write a detail note on Gift
And : According to Section 122 of Transfer of Property Act,1882 -“A Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor or guarantor or sender, to another, called the donor, and accepted by or on behalf of the donee or guarantee or receiver.”
Types of Gifts:
Reasons of Revoking or Suspending or Voiding a Gift by Law:
- A donee or donor can revoke or suspend any future gift but a gift which is already delivered and accepted can’t be revoked or suspended or void. [19] According to Section 126 of the Transfer of Property Act, 1882,-Any gift may become revoked or suspended or void for following reasons:
- If donee want to get a gift like Laptop from donor on a specific event like Birthday but the donor has not have intention to give any Laptop on birthday of the done but has been forced to give that gift then that gift shall become legally revoked or suspended or void.
- If the donee does not want to get any gift from the donor but has been forced to get that gift by the donor then that that gift shall become legally revoked or suspended or void.
- If the subject matter of the gift is illegal and full of debts then that gift shall become legally revoked or suspended or void.
- If both donor and donee have intention to suspend any gift then that gift shall become legally revoked or suspended or void
- If any gift is presented to the donee with misrepresentation and fraud information made by the donor then that gift shall be legally revoked or void or suspended.
- If any gift contains compensation or consideration made by donor or donee then that gift shall be legally revoked or void or suspended.
- If the donor of any gift dies before delivery then that gift shall be legally revoked or void or suspended.
- If the donor or the donee of any gift is minor or disqualified person then that gift shall be legally revoked or void or suspended.
Q16- Define Sale. Explain rights and liabilities of Buyer and seller.
Ans : 1. Introduction :Sale is considered main mode of transfer of property. Through this mode of transfer of property, both seller and buyer of immoveable property get some rights and both are subject to some liabilities. However, such rights and liabilities emerge in absence of contract to contrary.
- Meaning of Sale : A contract between two parties, called, respectively, the seller and the buyer, by which the former in consideration of the payment or promise of payment of a certain price in money transfers to the latter the title and possession of property.
- Definition of Sale : Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
- Rights and Liabilities of Seller : Following are the rights and liabilities of seller
- Production of documents : On buyer’s request for examination, seller is bound to produce to buyer all documents of title, which related to immoveable property and which are in seller’s possession or power.
- Disclose to the buyer material defect : The is bound to disclose to the buyer any material defect in the property 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.
Answer to Questions : Seller is bound to answer to best of his information all relevant questions, which buyer puts to him in respect to immoveable property or title to immoveable property.
- Rent and Profits : The seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer.
- Care of Immoveable Property and Documents : Between date of contract of sale and delivery of immoveable property, seller is bound to take as much care of the property and all documents of title as an owner of ordinary prudence would take care of such property and documents.
- Delivery of Possession of Immoveable Property : Seller is bound to give possession of immoveable property to buyer or some other person according to directions of buyer.
To give Possession : The seller is bound to give on being so required the buyer or such person as he directs, such possession of the property as its nature admits.
To pay all public charges : The seller is bound to pay all public charges and rent accrued due in respect of the property upto date of the sale, the interests 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.
- To deliver documents : The seller is bound, where the whole of the purchase money has been paid to the seller to deliver to the buyer all documents of title relating to the property which are in seller’s possession or power.
- Subsistence of Interest : Seller is deemed to contract with buyer that interest, which seller professes to transfer to buyer, subsists and that he has power to transfer such interest. And when sale is made by a person in a fiduciary character, he is deemed to contract with buyer that seller has done no act whereby immoveable property is encumbered or whereby he is hindered from transferring it.
- Payment of Purchase money : When ownership of immoveable property has been passed to buyer before payment of whole of purchase-money, seller is entitled to a charge upon that property, which is in hands of buyer.
Rights and Liabilities of buyer
Following are rights and liabilities of buyer
- Right to get benefit of improvement : The buyer is entitled 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.
- To disclose any fact about property : The buyer is bound 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 increase the value of such interest.
Payment or tendering of purchase-money : Buyer is bound to pay or tender purchase-money to seller or some other person according to directions of seller at time and place of completing sale.
- Bearing of Loss : When ownership of immoveable property has been passed to buyer, he is bound to bear any loss, which arises from destruction, injury or decrease in value of the property when such destruction, injury or decrease is not caused by seller.
- Entitlement to improvement and increase in value of immoveable property : When ownership of immoveable property has been passed to buyer, he is entitled to benefit of any improvement in the property or increase in value of the property.
- Entitlement of Rents and Profits : When ownership of immoveable property has been passed to buyer, he is entitled to rents and profits of the property.
Entitlement to charge on immoveable property : Buyer is entitled to charge on immoveable property to extent of seller’s interest in the property, to charge for amount of any purchase-money, which is properly paid by buyer in anticipation of delivery, and to charge for interest on such amount. Such charge is against seller and all persons, who claim under seller. Here condition is that buyer should not have improperly declined to accept delivery of the property.
Q17- What are the essentials of valid Sale?
Ans : Essential Elements of Sale:
Q21- Onerous Gift
Ans : Onerous Gift is given under section 127 of TPA. Onerous Gift is based on the maxim “quis ensit commodum debet et sintiue onus.” Now let us understand the meaning of the Onerous Gift. Onerous means “burdened with obligation “. Obligation here means debt, interest etc on the property. Gift is defined under section 122 which means transfer of existing immovable or movable property without consideration. So, Onerous gift is when one person transfer several gifts, i.e., more than one gifts to another in a single transfer, out of these gifts one is not burdened by obligation but other is burdened with obligation, so here donee has to accept in full, he cannot accept one which is beneficial and reject burdened with obligation.
But where gift is in the form of two or more separate and independent gifts to same person off several things, then donee can accept one and reject other because the gift is not in single transfer but independent transfer. Example: “A” transfer two gift shares X and Y to “B” in a single transfer. X is the share of prosperous company and Y is share of sinking company. B refuses to accept gift Y. So B cannot take X gift also.
Q22- Appointment of Receiver.
Ans : A receiver in an action is an impartial person appointed by the Court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the Court that cither party should collect or receive, or for enabling the same to be distributed among the persons entitled. Two classes of receivers can be appointed by Courts, viz., (a) under the statutes and (b) under the Civil Procedure Code, the Specific Relief Act and the Original Side Rules of the High Court.
- Appointment of receiver by Court under statutes:- Several statutes in India like the Provincial Insolvency Act (5 of 1920) (Sections 20, 57, 59 and 68), the Presidency Towns Insolvency Act (3 of 1909) (Section 16) the Transfer of Property Act (4 of 1882) (Section 69-A), the Trustees’ and Mortgagees’ Powers Act (28 of
- (Sections 12 to 19) and the Indian Companies Act (7 of 1913) (Sections 118, 119, 129 and 277E) authorise Courts for appointing receivers under the particular circumstances set out therein. …”
- Appointment of receiver by Court under the Civil Procedure Code, the Specific Relief Act and the Original Side Rules of the High Court:- The second class of Receivers arc included in these in which appointment is made to preserve the property pending litigation to decide the rights of parties. The powers to appoint a Receiver in such cases are comprised in the Civil Procedure Code of 1908 (Sections 51, 94 and Order 40), the Specific Relief Act of 1877 (Section 44), and the Original Side Rules of High Courts relating to Receivers.
Panch sadachar:- In Krishnaswamy Chetty v. C. Thangavelu Chetty, AIR 1955 Mad 430, five principles which were described as the “panch sadachar’ of our Courts exercising equity jurisdiction in appointing receivers.
- The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised-for the purpose of permitting the ends of justice, and protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding.
- The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has very excellent chance of succeeding in the suit.
- Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt.
- An order appointing a receiver will not be. made where it has the effect of depriving a defendant of a ‘de facto’ possession since that might cause irreparable wrong. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through, fraud or force the Court will interpose by receiver for the security of the property.
- The Court, on the application of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. He must come to Court with clean hands and should not have disentitled himself to the equitable relief by laches, delay, acquiescence etc.
Q23-Explain rights and liabilities of Lessee.
Ans : Following are rights and liabilities of lessee;
- Accession to Leased property : If any accession is made to leased-property during continuation of lease and if such accession is according to that law, which is in force and which relates to alluvion, lessee is entitled to enjoy such accession.
- Expenses for Repairing of Leased-property : Within reasonable time after notice, if lessor neglects to make any repairs, which he is bound to make to leased- property, lessee can make such repairs himself, and can deduct expense of a such repairs with interest from rent or can recover if from lessor.
- Destruction or unfitness of lease-property : If fire, tempest, flood, violence of any army violence of a mob or violence of other irresistible force causes complete destruction or permanent unfitness to any material part of leased-property, lease becomes void at option of lessee. However, if act or default of lessee causes such injury, he is not entitled to make lease void.
- Taking of things attached to earth : Lessee can take all things, which he has attached to earth, by leaving leased-property in that state in which he has received it.
- Disclosure of Fact : Lessee is bound to disclose to lessor any fact, when such fact is about nature or extent of that interest, which lessee is about to take, and when such fact increases value of such interest.
- Payment of Premium or Rent: At proper time and palace, lessee is to pay or tender premium or rent to lessor or his agent.
- Notice of Defect: Lessee should give lessor notice of any defect regarding condition of leased-property. And when such defect has been caused by any act or default of lessee, his servants or agents, he is bond to make it good after such notice.
- Entry into leased-property : At all reasonable times during term of lease, lessee should allow lessor and his agents enter upon leased-property.
- Notice : Lessee should give lessor a notice about proceeding for recovery of leased-property, about encroachment against lessor’s rights in leased-property or about interference with lessor’s rights in leased-property.
- Use of leased-property: Lessee should use leased-property and its products as a person of ordinary prudence. In short, lessee should not commit any act, which can be destructive or injurious to leased-property.
Q24- Explain the Doctrine of part-performance and what is the transfer by one co-owner?
Ans : As per section 53A of the Transfer of Property Act, 1882; Part performance means where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that
Q26- What means to “registered”?
Ans : The purchase of house property by deed of sale or sale agreement should be registered with the office of the Registrar and/or sub-registrar of the district within whose jurisdiction the property is situated. Registration is done after the parties, buyer and seller, have executed the documents related to purchase and sale. The Indian Registration Act 1902 covers provisions related to registration of documents. Registration of any document needs to be done as per the statutory requirements. The statute provides detailed provisions relating to registration of property documents. This is further clarified under the provisions of the Transfer of Property Act 1882. Apart from statutory reasons, in order to create a permanent record, it is always advisable to register any document related to immovable property.
Q27- What is the object of Transfer of Property Act 1882?
Ans : The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’) was intended to define and amend the existing laws and not to introduce any new principle. It applies only to voluntary transfers. The following may be enumerated as the objectives of the Act:
- As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law relating to transfer of property by the acts of the parties.
- The Act provides a clear, systematic and uniform law for the transfer of immovable property.
- The Act completes the Code of Contract since it is an enacted law for transfers that take place in furtherance of a contract.
- With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the existing laws of testamentary and intestate transfers.
- The Act is not exhaustive and provides scope to apply the principles of Justice, Equity and Good Conscience if a particular case is not governed by any provision of law.
Q28- Give the meaning of the term “Attested”
Ans : Attestation is in respect to an instrument. It is done for the purpose of validating that the deed was executed properly by the proper person. This definition was included through the Transfer of Property (Amendment) Act, 1926.
Following are the requirements of a valid attestation-
- There must be two or more competent witness to attest.
- Each witness must see the executant sign the instrument;
- Each witness must receive a personal acknowledgement from the executant that he has signed.
- Each witness must sign the instrument in the presence of executant.
- Not necessary for both witnesses to be present at the same time.
- No particular form of attestation is necessary.
- A witness cannot be a party to transfer.
Q29-Conditional Transfer.
Ans : Section 25 of the Transfer of Property Act, 1882 provides for Conditional Transfer. It means that any transfer that happens on the fulfilment of a condition that is imposed on the other party for the transfer of property. For example, A agrees to transfer his property to B if he gets selected for a job. The requirement of A for B to get a job is called a condition.
For any kind of a conditional transfer to be valid, the condition that is imposed should not be:
- Prohibited by law,
- Should not be an act that involves fraudulent acts,
- Should not be any act that is impossible,
- Should not be an act that is termed as violative of public policy,
- Should not be immoral,
- Any act that incurs any harm to any person or his property.
For example, X transfers a property ‘B’ to Y stating that he shall murder Z as a condition for the transfer. Such transfer is void as the condition is prohibited by law.
Condition Precedent
It is given in Section 26 of the Transfer of Property Act, 1882. Any condition that is required to be fulfilled before the transfer of any property is called a condition precedent. This condition is not to be strictly followed and the transfer can take place even when there has been substantial compliance of the condition.
Condition Subsequent
It is given in Section 29 of the Transfer of Property Act, 1882. Any condition that is required to be fulfilled after the transfer of any property is called condition subsequent. This condition is to be strictly complied with and the transfer will happen only after the completion of such condition.
Condition Collateral
Any condition that is required to be fulfilled simultaneously after the transfer of any property is called condition collateral. It needs to be strictly followed otherwise the transfer will break down.
Other Types of Conditions
Section 27 of the Transfer of Property Act, 1882 provides for any transfer to any other person if the first transfer fails.
Section 28 of the Transfer of Property Act, 1882 provides for any subsequent transfer that takes place on not happening of a specified event.
