2015-12-15 10-09-51 Law of Property Notes Answers

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15 DEC 2015, Tue

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LAW OF PROPERTY

Selected Notes For LLB 3YDC Preparation – Osmania University

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Table of Contents

PAPER-II: LAW OF PROPERTY ............................................................................................................... 11

LAW OF PROPERTY – SHORT NOTES & ANSWERS ........................................................................... 22

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PAPER-II: LAW OF PROPERTY

OSMANIA UNIVERSITY LL.B. (3YDC) SYLLABUS SEMESTER-3 THREE-YEARDEGREE COURSE

LLB III SEMESTER PAPER-II: LAW OF PROPERTY

SYLLABUS

Unit-I: Meaning and concept of property — Kinds of property — Transfer of property —

Transferable and non-transferable property — Who can transfer — Operation of transfer —

Mode of transfer — Conditional transfer — Void and unlawful conditions — Condition

precedent and condition subsequent — Vested and contingent interest — Transfer to unborn

person

Unit-II: Doctrine of Election — Covenants — Transfer by ostensible owner — Doctrine of

Feeding the Grant by Estoppels — Doctrine of Lis Pen dens — Fraudulent Transfer — Doctrineof Part-performance.

Unit-III: Sale- Essential features — Mode of Sale — Rights and liabilities of parties. Mortgage -

Kinds of Mortgages - Rights and liabilities of mortgagor and mortgagee — Marshalling and

Contribution — Charges.

Unit-IV: Lease — Essential features — Kinds of leases — Rights and liabilities of lesser and

lessee — Termination of lease — forfeiture — Exchange — Gifts — Different types of gifts —

Registration of Gifts — Transfer of Actionable Claims.

Unit-V: Easements — Definition of easement — Distinction between Lease and License —

Dominant and Servant Tenements. Acquisition of property through testamentary succession —

Will — Codicil — Capacity to execute Will — Nature of bequests — Executors of Will —

Rights and Obligations of Legatees.

Suggested Readings:

1. Mulla : Transfer of Property, Butterworth’s Publications.

2. Subba Rao GCV: Commentaries on the Transfer of Property Act.

3. Krishna Menon: Law of Property.

4. Upadhya's Common Matrix of Transfer of Property.







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2015 www.eSaraswati.com Page 2 of 25

LAW OF PROPERTY – SHORT NOTES & ANSWERS

Year Short Notes Sample Answers (Blank - Practice)

Jan/Feb

2014

Spes Successionis

The Transfer of Property Act, 1882 (hereinafter, the Act) a civil

legislation related to property transactions taking place throughout

the country.

Spes successionis within the meaning of Section 6 of the Act: The

things referred to in this Sub-section as non-transferable are the

chance of an heir succeeding to an estate, the chance of a relation

obtaining a legacy (a gift by will) on the death of a kinsman, and any

other mere possibility of a like nature.

Examples :

Interest of reversioner (transfer is a nullity)

Chance of legacy (the bequest of legacy is a mere chance)

Restrictive covenant

Any type of agreement that requires the buyer to either take or

abstain from a specific action. In real estate transactions, restrictive

covenants are binding legal obligations written into the deed of a

property by the seller. These covenants can be either simple orcomplex and can levy penalties against buyers who fail to obey them

Vested interest

A personal reason for involvement in an undertaking or situation,

especially an expectation of financial or other gain.

U/S 19. Vested interest. — Where, on a transfer of property, an

interest therein is created in favor of a person without specifying the

time when it is to take effect, or in terms specifying that it is to take

effect forthwith or on the happening of an event which must happen,

such interest is vested, unless a contrary intention appears from the

terms of the transfer. A vested interest is not defeated by the death of

the transferee before he obtains possession.







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Explanation. — An intention that an interest shall not be vested is not

to be inferred merely from a provision whereby the enjoyment

thereof is postponed, or whereby a prior interest in the same property

is given or reserved to some other person, or whereby income arising

from the property is directed to be accumulated until the time of

enjoyment arrives, or from a provision that if a particular event shall

happen the interest shall pass to another person.

Charge

U/S 100. Charges. — Where immoveable property of one person is by

act of parties or operation of law made security for the payment of

money to another, and the transaction does not amount to a mortgage,

the latter person is said to have a charge on the property; and all the

provisions hereinbefore contained 1[which apply to a simple

mortgage shall, so far as may be, apply to such charge]. Nothing in

this section applies to the charge of a trustee on the trust-property for

expenses properly incurred in the execution of his trust, 2[and, save

as otherwise expressly provided by any law for the time being in

force, no charge shall be enforced against any property in the hands

of a person to whom such property has been transferred forconsideration and without notice of the charge].

Unpaid seller

According to Section 46 of the Sale of Goods Act read with Section

54 of the same Act, an unpaid seller has a lien on the goods for the

price while he is in possession of them, and has a right of re-sale also,

that the unpaid seller on the rejection of the offer for delivery had two

options, viz. -

Rights of finder of

goods

Section 168 in The Indian Contract Act, 1872168. Right of finder of goods, may sue for specific reward offered. —

The finder of goods has no right to sue the owner for compensation

for trouble and expense voluntarily incurred by him to preserve the

goods and to find out the owner; but he may retain the goods against







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the owner until he receives such compensation; and where the owner

has offered a specific reward for the return of goods lost, the finder

may sue for such reward, and may retain the goods until he receives

it. — The finder of goods has no right to sue the owner for

compensation for trouble and expense voluntarily incurred by him to

preserve the goods and to find out the owner; but he may retain the

goods against the owner until he receives such compensation; and

where the owner has offered a specific reward for the return of goods

lost, the finder may sue for such reward, and may retain the goods

until he receives it."

U/71 Section 71 in The Indian Contract Act, 1872.

Responsibility of finder of goods. — A person who finds goods

belonging to another, and takes them into his custody, is subject to

the same responsibility as a bailee

Licence

In view of section 53 of the Indian Easements Act, 1882 readwith section 15(1) of the said TP Act. Also according to

section 53 of the Indian Easement Act, one could grant a licence in

the circumstances in which and to the extent to which he is entitled to

transfer his interest in the property effected by the licence. Under

section 15(1) read with section 15(2) of the TP Act, a tenant is not

entitled to create any sub-tenancy or to transfer his interest in the

premises after 21st May, 1959 unless the contract of tenancy

positively allowed him to do so.

Codicil

A codicil is a testamentary document similar but not necessarily

identical to a will. In some jurisdictions, it may serve to amend,

rather than replace, a previously executed will. In others it may serve

as an alternative to a will. In still others there is no recognized







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distinction between a codicil and a will.

Aug/Sep

2013

Immovable Property

Immovable property is an immovable object, an item of property that

cannot be moved without destroying or altering it - property that is

fixed to the earth, such as land or a house. In the United States it is

also commercially and legally known as real estate and in Britain as

property.

Section 3 in The Transfer of Property Act, 1882

U/S 3. Interpretation clause. — In this Act, unless there is something

repugnant in the subject or context, — “immoveable property” does

not include standing timber, growing crops or grass; ‘‘instrument”

means a non-testamentary instrument;

Condition Precedent


U/S 26. Fulfilment of condition precedent. — Where the terms of a

transfer of property impose a condition to be fulfilled before a person

can take an interest in the property, the condition shall be deemed to

have been fulfilled if it has been substantially complied with.Illustration

(a) A transfers Rs. 5,000 to B on condition that he shall marry with

the consent of C, D and E. E dies. B marries with the consent of C

and D. B is deemed to have fulfilled the condition.

(b) A transfers Rs. 5,000 to B on condition that he shall marry with

the consent of C, D and E. B marries without the consent of C, D and

E, but obtains their consent after the marriage. B has not fulfilled the

condition.

Rule against perpetuity

"A perpetuity", as defined by Lewis in his well-known book on

"Perpetuities" (p. 164), is 'a future limitation, whether executory or

by way of remainder, and of either real or personal property which is

not to vest until after the expiration of, or will not necessarily







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vest within, the period fixed and prescribed by law for the

,creation of future estates and interests'. The rule as formulated

falls within the branch of the law of property and its true object is to

restrain the creation of future conditional interest in property.

The rule against perpetuities is not concerned with contracts

as such or with contractual rights and obligations as such. Thus a

contract to pay money to a person, his heirs or, legal

representatives upon a future contingency, which may happen beyond

the period prescribed would be perfectly valid (Walsh v. Secretary of

State for India)(1). It is therefore well-established that the rule of

perpetuity concerns rights of property only and does not affect the

making of contracts which do not create rights of property.

Caselaw: Rambaran Prosad vs Ram Mohit Hazra & Ors 6

September, 1966

Hiba

The term 'HIBA' and Gift are more often employed, but the term

''HIBA'' is only of the kind of transactions which are covered by the

general term 'Gift'. 'HIBA' is confined only to transfer of rights of full

ownership or corpus of any property. Such a transfer by means of'HIBA' must be immediate and not contingent. It must be

unconditional. Any conditions imposed in respect of corpus would be

void.

As a matter of fact the burden of proving with the formalities of law

have been complied with lies on the person claiming to be the Donee.

The burden of proof is then shifted on those who challenge the

validity of gift in the considered opinion of this Court. Really

speaking, the burden of establishing that possession has been

delivered is on the Donee of those who claim under him.

CASELAW: S.G.Mahaboob Basha vs Tmt. Najumunnissa on 30

December, 2009







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In the decision Imbichimoideenkutty v. Pathumunni Umma and

others AIR 1989 Kerala 148 it is held thus;

"'HIBA' or gift under Mohammedan Law is a transfer of property

made immediately and without any exchange by one person to

another and accepted by or on behalf of the latter. By virtue of

Section 129 I.P.Act the chapter does not affect any rule of

Mohammedan Law and therefore ''HIBA'' of subject matter of

whatever value need not be registered as required by Section 123. If,

however, it is reduced into writing and relates to immovable property

worth Rs.100/- or more the document is compulsorily registrable

under Section17 of the Registration Act which applies. On the other

hand, 'HIBA'-bil-iwaz in India being a gift for an exchange is in the

nature of a sale and if the subject matter is immovable property worth

Rs.100/- or more, then, it can only be by a registered instrument as

provided under Section54, T.P.Act. Oral gift in discharge of money

owed to the donee being one for consideration amounts to a sale. It is

not pure and simple ''HIBA'' but a 'HIBA'-bil-iwaz and if the property

of value of Rs.100/- or more is involved it can only be by a registered

document."

Usufructory Mortgage


Sec. 58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money”

and “mortgage-deed” defined.—

(d) Usufructuary mortgage. — Where the mortgagor delivers

possession 1[or expressly or by implication binds himself to deliver

possession] of the mortgaged property to the mortgagee, and

authorises him to retain such possession until payment of the

mortgage-money, and to receive the rents and profits accruing from







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the property 2[or any part of such rents and profits and to appropriate

the same] in lieu of interest, or in payment of the mortgage-money, or

partly in lieu of interest 3[or] partly in payment of the mortgage-

money, the transaction is called an usufructuary mortgage and the

mortgagee an usufructuary mortgagee.


62. Right of usufructuary mortgagor to recover possession. — In the

case of a usufructuary mortgage, the mortgagor has a right to recover

possession of the property 1[together with the mortgage-deed and all

documents relating to the mortgaged property which are in the

possession or power of the mortgagee], —

(a) where the mortgagee is authorized to pay himself the mortgage-

money from the rents and profits of the property, — when such money

is paid;

(b) where the mortgagee is authorised to pay himself from such rents

and profits 2[or any part thereof a part only of the mortgage-

money], — when the term (if any) prescribed for the payment of the

mortgage-money has expired and the mortgagor pays or tenders to

the mortgagee 3[the mortgage-money or the balance thereof] or

deposits it in Court as hereinafter provided.

Hiba Refer earlier answer.

Resumable gift

A Resumable Gift is one which is revocable at any time at the mere

will of the donor. Such a gift is void abinitio.

Section 126 of the transfer of Property Act, 1882 lays down that

conditional gifts are allowed by law. The requirements as to validity

of conditions are:[25]

A condition should not be vague.

A condition should not be inherently impossible of performance.







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The condition should not be illegal.

The condition should not be immoral.

The condition should not be opposed to public policy.

CaseLaws:

1. State of U.P v. Sayed Abdul Jalil, AIR 1990 SC 1272.

2. Taraknath v. Sushil Chandra Dey, (1996)4 SCC 697.

3. V.P.K Umma v. P.N Kunhamu, AIR 1964 SC 275.

Actionable claim


...

[5] “actionable claim” means a claim to any debt, other than a debt

secured by mortgage of immoveable property or by hypothecation or

pledge of moveable property, or to any beneficial interest in

moveable property not in the possession, either actual or constructive,

of the claimant, which the Civil Courts recognise as affording

grounds for relief, whether such debt or beneficial interest be

existent, accruing, conditional or contingent;]

Jan 2013 Actionable claim Already answered.

Vested interest

Doctrine of feeding the

Grant by Estoppel

Section 43 of the Transfer of Property Act embodied this doctrine of

feeding the grant by estoppel .

Section 43 says that where a person fraudulently or erroneously

represents that he is authorized to transfer certain immovable

property and professes to transfer such property for consideration ,

such transfer shall , at the option of the transferee , operate on any

interest which the transferor may acquire in such property , at any

time during which the contract of transfer subsists .

Section 43 further provides that nothing in this section shall impair

the right of transferees in good faith for consideration without notice







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of the existence of the said option .

The doctrine of feeding the grant by estoppels may be illustrated by

an example .

Let us suppose that A , a Hindu , who has separated from his father B

, sells to C three fields , X , Y and Z , representing that A is

authorized to transfer the same . Of these fields Z does not belong to

A , it having been retained by B on the partition , but on B’s dying ,

A as heir obtains Z . C not having rescinded the contract of sale , may

require A to deliver Z to him .

Doctrine of lis pendens

The doctrine of Lis pendens is embodied in section 52 of the

Transfer of Property Act .

According to this section during the pendency in any Court having

authority within the limits of India excluding the State of Jammu and

Kashmir or established beyond such limits of the Central

Government , of any suit or proceeding which is not collusive and in

which any right to any immovable property is directly and separately

in question , the property can not be transferred or otherwise dealtwith by any party to the suit or proceeding so as to affect the rights of

any other party thereto under any decree or order which may be made

therein , except under the authority of the Court and on such terms as

it may impose .

Usufructory Mortgage Already answered.

Remedy of foreclosure

Under Section 67 of the Transfer of Property Act the mortgagee, at

any time after the mortgage money has become payable and before

decree for redemption has been made, has a right to obtain from the

Court an order for foreclosure or of sale.

Caselaw: Ganesh Prasad And Anr. vs Ram Shankar Lal Baldeo Das

And Ors. on 23 March, 1907







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TP Act. Sec. 67. Right to fore-closure or sale. — In the absence of a

contract to the contrary, the mortgagee has, at any time after the

mortgage-money has become 1[due] to him, and before a decree has

been made for the redemption of the mortgaged property, or the

mortgage-money has been paid or deposited as hereinafter provided,

a right to obtain from the Court 2[a decree] that the mortgagor shall

be absolutely debarred of his right to redeem the property, or 2[a

decree] that the property be sold. A suit to obtain 2[a decree] that a

mortgagor shall be absolutely debarred of his right to redeem the

mortgaged property is called a suit for foreclosure. Nothing in this

section shall be deemed — 3[

(a) to authorise any mortgagee other than a mortgagee by conditional

sale or a mortgagee under an anomalous mortgage by the terms of

which he is entitled to foreclose, to institute a suit for foreclosure, or

an usufructuary mortgagee as such or a mortgagee by conditional sale

as such to institute a suit for sale; or]

(b) to authorise a mortgagor who holds the mortgagee’s rights as his

trustee or legal representative, and who may sue for a sale of the

property, to institute a suit for foreclosure; or

(c) to authorise the mortgagee of a railway, canal, or other work in

the maintenance of which the public are interested, to institute a suit

for foreclosure or sale; or

(d) to authorise a person interested in part only of the mortgage-

money to institute a suit relating only to a corresponding part of the

mortgaged property, unless the mortgagees have, with the consent of

the mortgagor, severed their interests under the mortgage.

Definition of Lease


105. Lease defined. — A lease of immoveable property is a transfer of

a right to enjoy such property, made for a certain time, express or

implied, or in perpetuity, in consideration of a price paid or promised,







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or of money, a share of crops, service or any other thing of value, to

be rendered periodically or on specified occasions to the transferor by

the transferee, who accepts the transfer on such terms. Lessor, lessee,

premium and rent defined. — The transferor is called the lessor, the

transferee is called the lessee, the price is called the premium, and the

money, share, service or other thing to be so rendered is called the

rent.

Codicil

Section 2(b) in The Indian Succession Act, 1925

(b) “codicil” means an instrument made in relation to a Will, and

explaining, altering or adding to its dispositions, and shall be deemed

to form part of the Will;

Apr / May

2011

Fraudulent Transfer


1[53. Fraudulent transfer. —

(1) Every transfer of immoveable property made with intent to defeat

or delay the creditors of the transferor shall be voidable at the option

of any creditor so defeated or delayed. Nothing in this sub-section

shall impair the rights of a transferee in good faith and for

consideration. Nothing in this sub-section shall affect any law for thetime being in force relating to insolvency. A suit instituted by a

creditor (which term includes a decree-holder whether he has or has

not applied for execution of his decree) to avoid a transfer on the

ground that it has been made with intent to defeat or delay the

creditors of the transferor shall be instituted on behalf of, or for the

benefit of, all the creditors.

(2) Every transfer of immoveable property made without

consideration with intent to defraud a subsequent transferee shall be

voidable at the option of such transferee. For the purposes of this sub-

section, no transfer made without consideration shall be deemed to

have been made with intent to defraud by reason only that a

subsequent transfer for consideration was made.]







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Ostensible Owner


Sec. 41. Transfer by ostensible owner. — Where, with the consent,

express or implied, of the persons interested in immoveable property,

a person is the ostensible owner of such property and transfers the

same for consideration, the transfer shall not be voidable on the

ground that the transferor was not authorised to make it: provided

that the transferee, after taking reasonable care to ascertain that the

transferor had power to make the transfer, has acted in good faith.

Universal Donee


128. Universal donee. — Subject to the provisions of section 127,

where a gift consists of the donor’s whole property, the donee is

personally liable for all the debts due by 1[and liabilities of] the

donor at the time of the gift to the extent of the property comprised

therein.

Condition Precedent


26. Fulfilment of condition precedent. — Where the terms of a transfer

of property impose a condition to be fulfilled before a person can

take an interest in the property, the condition shall be deemed to have

been fulfilled if it has been substantially complied with. Illustration(a) A transfers Rs. 5,000 to B on condition that he shall marry with

the consent of C, D and E. E dies. B marries with the consent of C

and D. B is deemed to have fulfilled the condition.

(b) A transfers Rs. 5,000 to B on condition that he shall marry with

the consent of C, D and E. B marries without the consent of C, D and

E, but obtains their consent after the marriage. B has not fulfilled the

condition.

Anomalous Mortgagee


(g) Anomalous mortgage. — A mortgage which is not a simple

mortgage, a mortgage by conditional sale, an usufructuary mortgage,

an English mortgage or a mortgage by deposit of title-deeds within







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the meaning of this section is called an anomalous mortgage.]

Onerous Gift

TP Act. Sec. 127. Onerous gifts. — Where a gift is in the form of a

single transfer to the same person of several things of which one is,

and the others are not burdened by an obligation, the donee can take

nothing by the gift unless he accepts it fully. Where a gift is in the

form of two or more separate and independent transfers to the same

person of several things, the doneee is at liberty to accept one of them

and refuse the others, although the former may be beneficial and the

latter onerous. Onerous gift to disqualified person. — A donee not

competent to contract and accepting property burdened by any

obligation is not bound by his acceptance. But if, after becoming

competent to contract and being aware of the obligation, he retains

the property given, he becomes so bound. Illustrations

(a) A shares in X, prosperous joint stock company, and also shares in

Y, a joint stock company in difficulties. Heavy calls are expected in

respect of the shares in Y. A gives B all his shares in joint stock

companies. B refuses to accept the shares in Y. He cannot take the

shares in X.

(b) A, having a lease for a term of years of a house at a rent which heand his representatives are bound to pay during the term, and which

is more than the house can be let for, gives to B the lease, and also, as

a separate and independent transaction, a sum of money. B refuses to

accept the lease. He does not by this refusal forfeit the money.

Quasi Easements

The meaning of the term "quasi-easement", which occurs in many

modern authorities is as follows. Where Blackacre and Whiteacre

both belong to A, the common owner, and during his ownership an

accommodation or privilege is enjoyed by Blackacre over Whiteacre,

and A subsequently parts with Blackacre to B but retains Whiteacre,

there passes to B in certain cases a right to the above accommodation.

This accommodation as it existed during the common ownership

cannot in the strict sense be described as an 'easement' but is usually







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described as a "quasi-easement". Blackacre is sometimes described

as the quasi-dominant tenement, and Whiteacre as the quasi-servient

tenement.

So if the necessity involved is absolute the right claimed is

an easement of necessity and the case falls under clause (a), (c) or

(e), but it is qualified, the further conditions i. e., the right claimed

must be a right to an apparent and continuous easement, must be

fulfilled before clause (b), (d) or (f) will apply. The twenty year rule

does not apply to quasi-easements.

Notice

[“a person is said to have notice” of a fact when he actually knows

that fact, or when, but for wilful abstention from an enquiry or search

which he ought to have made, or gross negligence, he would have

known it.

Explanation I. — Where any transaction relating to immoveable

property is required by law to be and has been effected by a

registered instrument, any person acquiring such property or any part

of, or share or interest in, such property shall be deemed to have

notice of such instrument as from the date of registration or, where

the property is not all situated in one sub-district, or where the

registered instrument has been registered under sub-section (2) of

section 30 of the Indian Registration Act, 1908 (16 of 1908)

Explanation II. — Any person acquiring any immovable property or

any share or interest in any such property shall be deemed to have

notice of the title, if any, of any person who is for the time being in

actual possession thereof.

Explanation III. — A person shall be deemed to have had notice of







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any fact if his agent acquires notice thereof whilst acting on his

behalf in the course of business to which that fact is material:

Provided that, if the agent fraudulently conceals the fact, the principal

shall not be charged with notice thereof as against any person who

was a party to or otherwise cognizant of the fraud.

Jun / Jul

2011

Transfer inter vivos

Inter vivos (Latin, between the living) is a legal term referring to a

transfer or gift made during one's lifetime, as opposed to a

testamentary transfer (a gift that takes effect on death).

The term is often used to describe a trust established during one's

lifetime, i.e., an Inter vivos trust as opposed to a Testamentary trust

which is established on one's death, usually as part of a will. An Inter

vivos trust is often used synonymously with the more common term

Living trust, but an Inter vivos trust, by definition, includes both

revocable and irrevocable trust.

The term inter vivos is also used to describe living organ donation, in

which one patient donates an organ to another while both are alive.

Generally, the organs transplanted are either non-vital organs such ascorneas or redundant vital organs such as one of the two kidneys or

part of a liver.

Condition Precedent Already answered.

Spes Successionis Already answered.

Doctrine of Cypress

The legal doctrine of Cy Pres is a French term meaning "as close as

possible." When a gift is made by will or trust and it is no longer

possible to follow the instructions of the donor, a judge, estate, or

trustee may apply the Cy Pres doctrine to fulfill the donor's wishes as

nearly as possible. It is usually applied in the case of a gift made for

charitable or educational purposes when the named recipient of the

gift does not exist, has dissolved or no longer conducts the activity

for which the gift is made. In some cases, the Cy Pres doctrine is







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used court disputes in which a judge must determine the appropriate

substitute to receive the gift.

The cy-près doctrine is a legal doctrine that first arose in courts of

equity. The legal French term literally means "so near/close" and can

be translated as "as near as possible" or "as near as may be".The

doctrine originated in the law of charitable trusts, but has been

applied in the context of class action settlements in the United States.

When the original objective of the settlor or the testator became

impossible, impracticable, or illegal to perform, the cy-près doctrine

allows the court to amend the terms of the charitable trust as closely

as possible to the original intention of the testator or settlor to prevent

the trust from failing.

For example, in Jackson v. Phillips, the testator (Francis Jackson)

bequeathed to trustees money to be used to "create a public sentiment

that will put an end to negro slavery in this country". At Jackson's

death in 1861, slavery was legal in the United States. But four years

after Jackson's death, slavery was abolished by the Thirteenth

Amendment, and some of Jackson's family attempted to dissolve the

trust. However, the court disagreed and ordered that to best fulfill

Jackson's wishes the trust should be used, cy-près, "to promote the

education, support and interests of the freedmen, lately slaves, in

those states in which slavery had been so abolished".

Exchange

TP Act Sec. 118. “Exchange” defined.— When two persons mutually

transfer the ownership of one thing for the ownership of another,

neither thing or both things being money only, the transaction is

called an “exchange”. A transfer of property in completion of an

exchange can be made only in manner provided for the transfer of

such property by sale







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Death Bed Gift

In order for a deathbed gift of an asset to be valid, the gift must be

made by someone in contemplation of his or her impending death.

The gift must be contingent on them dying and there must be the

handing over - or delivery - of the asset itself or the essential items

that indicate title to it. There must be the intention to change the

ownership of the asset rather than just physical possession of it.

In the recent case of Vallee -v- Birchwood [2013] EWHC 1449 (Ch)

the Court held that a Donatio Mortis Causa gift could be made four

months before the person died. In that case, Ms Vallee lived abroad

and came to England to see her father, Mr. Bogusz. When they were

discussing when she would next visit she had told him that she hoped

to be over again at Christmas. Her father replied that he might not be

alive by then and handed her the deeds to his unregistered property, a

key to his house, his war medals and a photo album. Mr. Bogusz

died in the December without leaving a will. As Ms Vallee had been

adopted out of the family after her mother and Mr. Bogusz’s

marriage broke down, she was not entitled to benefit under Mr.

Bogusz’s estate.

Charge Already answered.

License Already answered.

May / Jun

2011Immovable Property

Already answered.

Unborn Person

Sec. 13. Transfer for benefit of unborn person. — Where, on a

transfer of property, an interest therein is created for the benefit of a

person not in existence at the date of the transfer, subject to a prior

interest created by the same transfer, the interest created for the

benefit of such person shall not take effect, unless it extends to the

whole of the remaining interest of the transferor in the property.







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Illustration A transfers property of which he is the owner to B in trust

for A and his intended wife successively for their lives, and, after the

death of the survivor, for the eldest son of the intended marriage for

life, and after his death for A’s second son. The interest so created for

the benefit of the eldest son does not take effect, because it does not

extend to the whole of A’s remaining interest in the property.

Vested interest Already answered

Lis Pendens Already answered

Lease Already answered.

Onerous Gift Already answered.

License Already answered.

Restrictive covenant Already answered.

Dec 2010 Spes Successionis Already answered.

Vested interest Already answered.

Marshalling


Ostensible Owner Already answered.

Fraudulent Transfer Already answered.

Tenancy-by-holding

over

Licence Already answered.

May / Jun

2010Actionable claim

Already answered.


Lis Pendense Already answered.

Partial RedemptionForeclosure Already answered.


Vested interest

Oral Transfer







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Nov / Dec

2009

Attestation

Sec. 3. Interpretation clause. — In this Act, unless there is something

repugnant in the subject or context, — “immoveable property” does

not include standing timber, growing crops or grass; ‘‘instrument”

means a non-testamentary instrument; 1[“attested”, in relation to an

instrument, means and shall be deemed always to have meant attested

by two or more witnesses each of whom has seen the executant sign

or affix his mark to the instrument, or has seen some other person

sign the instrument in the presence and by the direction of the

executant, or has received from the executant a personal

acknowledgement of his signature or mark, or of the signature of

such other person, and each of whom has signed the instrument in the

presence of the executant; but it shall not be necessary that more than

one of such witnesses shall have been present at the same time, and

no particular form of attestation shall be necessary;]

Contingent interest

Sec. 21. Contingent interest. — Where, on a transfer of property, an

interest therein is created in favour of a person to take effect only on

the happening of a specified uncertain event, or if a specified

uncertain event shall not happen, such person thereby acquires a

contingent interest in the property. Such interest becomes a vestedinterest, in the former case, on the happening of the event, in the

latter, when the happening of the event becomes impossible.

(Exception) — Where, under a transfer of property, a person becomes

entitled to an interest therein upon attaining a particular age, and the

transferor also gives to him absolutely the income to arise from such

interest before he reaches that age, or directs the income or so much

thereof as may be necessary to be applied for his benefit, such

interest is not contingent.

Simple Mortgage

Sec. 58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money”

and “mortgage-deed” defined.—

(a) A mortgage is the transfer of an interest in specific immoveable







© 2010 –


property for the purpose of securing the payment of money advanced

or to be advanced by way of loan, an existing or future debt, or the

performance of an engagement which may give rise to a pecuniary

liability. The transferor is called a mortgagor, the transferee a

mortgagee; the principal money and interest of which payment is

secured for the time being are called the mortgage-money, and the

instrument (if any) by which the transfer is effected is called a

mortgage-deed.

(b) Simple mortgage. — Where, without delivering possession of the

mortgaged property, the mortgagor binds himself personally to pay

the mortgage-money, and agrees, expressly or impliedly, that, in the

event of his failing to pay according to his contract, the mortgagee

shall have a right to cause the mortgaged property to be sold and the

proceeds of sale to be applied, so far as may be necessary, in payment

of the mortgage-money, the transaction is called a simple mortgage

and the mortgagee a simple mortgagee.

Universal Donee Already answered.

Licence Already answered.Codicil Already answered.

Doctrine of election

Sec. 35. Election when necessary. — Where a person professes to

transfer property which he has no right to transfer, and as part of the

same transaction confers any benefit on the owner of the property,

such owner must elect either to confirm such transfer or to dissent

from it; and in the latter case he shall relinquish the benefit so

conferred, and the benefit so relinquished shall revert to the transferor

or his representative as if it had not been disposed of, subject

nevertheless, where the transfer is gratuitous, and the transferor has,

before the election, died or otherwise become incapable of making a

fresh transfer, and in all cases where the transfer is for consideration,

to the charge of making good to the disappointed transferee the







© 2010 –


amount or value of the property attempted to be transferred to him.

Illustrations The farm of Sultanpur is the property of C and worth Rs.

800. A by an instrument of gift professes to transfer it to B, giving by

the same instrument Rs. 1,000 to C. C elects to retain the farm. He

forfeits the gift of Rs. 1,000. In the same case, A dies before the

election. His representative must out of the Rs. 1,000 pay Rs. 800 to

B. The rule in the first paragraph of this section applies whether the

transferor does or does not believe that which he professes to transfer

to be his own. A person taking no benefit directly under a transaction,

but deriving a benefit under it indirectly, need not elect.

Definition of Easement Already answered.

Extra Intangible Property Intellectual Property Rights

Spes Successionis Already answered.

Condition Subsequent

Sec. 29. Fulfilment of condition subsequent. — An ulterior disposition

of the kind contemplated by the last preceding section cannot, take

effect unless the condition is strictly fulfilled. Illustration A transfers

Rs. 500 to B, to be paid to him on his attaining his majority or

marrying, with a proviso that, if B dies as minor or marries without

C’s consent, the Rs. 500 shall go to D. B marries when only 17 yearsof age, without C’s consent. The transfer to D takes effect.


Simple Mortgage Already Answered

Marshalling Already answered.


Licence Already answered.







PAPER-II: LAW OF PROPERTY ANSWERS

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