LL.B. (3-YDC) Second Year, III Semester, Regular.

Paper – II Law of Property

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 ti be paid according to stamp act.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

This detail about the term transfer of property and the property which
cannot be transferred.

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 reason:-

It is not known whether child is male or female.

There is no name to the child and transfer cannot be done without name.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

This is detail about rule against Perpetuity and relevant exceptions in Transfer of
Property Act.

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:

1. Mortgagor and mortgagee should be competent person and such person

should not be minor or unsound min person.

2. There should be free consent of both the parties.

3. It should be in writing and not oral.

4. Security is given only for loan transaction.

5. Stamp duty have to be paid according to amount of loan.

6. It should be attested by two witnesses.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
7. 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. Ana-molous Mortgage:- This mortgage is different from above mortgages.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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:-

1. 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’.

2. When there is death of mortgagor then right of redumption pass on to his

heirs.

3. There is right of mortgagor to continue his possession except ‘Usu

Fructuary’ mortgage.

4. There is right of mortgagor to pay the loan amount completely or partly

according to terms of agreement.

5. There is right of mortgagor to claim excess money from mortgagee after

adjustment of loan amount.

Rights of Mortgagee:-

1. There is right of mortgagee to give notice to mortgagor to settle is account

. this is called as ‘Right of Fore Clause’.

2. It is right of mortgagor to use the property if it is ‘Usu Fructuary’

Mortgage.

3. Mortgagor have right of lean over the documents till repayment of loan
amount.

4. Mortgagee have right to claim back interest on mortgaged loan as

specified in mortgaged deed.

5. There is right of mortgagee to file a recovery suit and obtain decree to sale
mortgaged property to recover loan amount.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
This is detail about mortgage its kinds and rights of mortgagor and
mortgagee in Transfer of property act.

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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property

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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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’.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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 :-

1. When donar is incompetent person such as minor or unsound mind

person.

2. When it is not the property of the donar or dispute of the property is

pending in the court.

3. When it is conditional gift and donee has not fulfilled the condition.

4. before performing required formalities such as transfer of possession,

registration of document in favour of donee.

5. When there is death of donar before completion of legal formalities.

6. When obligation or legal duty not complied by donee.

7. 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.

8. 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:

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
1. Written Transfer:- This transfer is in writing and description of
property is given in the document.

2. Transfer of Possession:- In vested transfer there is transfer of

possession done by transferor to transferee.

3. Registration of Document :- In vested transfer document is registered

in favour of the transferee.

4. Payment of Stamp Duty :- In vested transfer sufficient stamp duty is

paid according to stamp act and valuation of the property.

5. 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:

1. Condition Clause:- A clause have to be added in the document which is

executed between transferor and transferee.

2. Lawful Condition:- Any condition can be imposed which should be

lawful. It should not be illegal or immoral or impossible.

3. Consent of Transferee:-There should be consent of the transferee to

accept the condition.

4. Revocation:- When condition is not fulfilled by the transferee then

there is right of transferor to revoke the transfer.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
Kinds of Condition:- There are 2 kinds of condition as follows:

1. Condition Precedent

2. 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:

1. Document : There is execution of document and condition is specified

to be performed afterwards.

2. Lawful Condition: Any condition mentioned should be lawful and not

illegal and immoral.

3. 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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
Vested Transfer Contingent Transfer
In this transfer there is In this transfer there is a
1 no condition. condition.
In this transfer there are
unlimited rights in the In this transfer there are
2 property. limited rights to transferee.
Transferee cannot retransfer
Transferee can the property till fulfilment of
3 retransfer the property. Condition.
This transfer cannot be This transfer can be revoked if
4 revoked. condition is not fulfilled.
Contingent transfer can be
Vested transfer cannot vested transfer. After
5 be contingent transfer. fulfilment of condition.

This is detail about vested, contingent transfer, its requisites and distinguish
between it.

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.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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:

1. When testator change his mind then he can withdraw the will or
substitute other will.

2. When mental condition of testator is abnormal or he was unsound mind

person. It has to proofed by producing medical record.

3. When will is executed under threat or pressure or influence or corrosions

and there is no free consent of the testator.

4. When testator have no right to make the will or property is under dispute.

5. When condition in the will is illegal or immoral or impossible.

6. When legatee did not fulfil the condition.

7. 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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.

1. Movable property

2. Immovable property

3. Intellectual property
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of 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.

4Q. 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.

5Q. 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

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.

6Q. 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.

7Q. 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
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
1 In agreement to sale all formalities 1 In sale all formalities
are not completed. are completed.

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

in Persunom.

3 There is no need to register the 3 Sale deed have to be registered.

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 revoke 6 There is less opportunity to revoke

the transfer. The transfer.

8Q. 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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
Therefore marshalling is the right of mortgagor and contribution is the right of
mortgagee.

11Q. 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:-

1.There is execution of document between creditor and debtor.

2. There is no description of particular property but debtor gives security of

whole property belonging to him.

3. Documents have to be registered.

4. It is burden on movable and immovable property.

5. It is financial burden on present and future property.

6. Creditor can obtain decree for recovery of loan amount and attach property
partly or completely till he recovers complete loan amount.

7. 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.

12Q. 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
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

13Q. 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.

14Q. 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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.
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.

1. When case has not been filed in the court having Jurisdiction.

2. When case has been filed but it has been with drawn by the party.

3. 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.

4. 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 littecation
relating to same property.

15Q. Doctrine of Feeding Grant by Estopple(Sec 43)?

Ans. When any body 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
LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – II Law of Property
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.

Law Students Federation – Law of Property Study Material (III Semester) – Dec, 2015.