Chapter 1 Moveable and Immovable Property -Property has been defned in R.C. Cooper v. UOI-Property denotes-Every kind o interest or riht !hi"h has an e"onomi" "ontent. #Movable property# shall mean property o every des"ription$ e%"ept immovable property. #Immovable property# shall in"l&de land$ benefts to arise o&t o land$ and thins atta"hed to the earth$ or permanently astened to anythin atta"hed to the earth. '(eneral Cla&se )"t$ 1*+, MO)/0E PROPER2 IMMO)/0E PROPER2 It "an be transerred rom one pla"e It "annot be transerred !itho&t "a&sin e%tensive damae to to another. the the prop proper erty ty. he he dama damae e relat elates es to the the nat& nat&rre o the the Reistration is optional as per the property Indian Reistration )"t$ 1+3*. he 4ales and Central 4ales ta%es Reist Reistrati ration on is "omp&lso "omp&lsory ry &nder &nder the Indian Indian Reist Reistrati ration on )"t$ )"t$ are applied$ 1+3* 1+ 3* i the the val& val&e e o the the prop proper erty ty is mor more than than Rs. Rs. 13 133. 3. he property property needs to be reistered reistered at the 4&b-Reistrar5s 4&b-Reistrar5s o6"e. he appropriate stamp d&ty and the reistration reistration ee have to be paid. -Types of properties '1 Moveable '7 Immovable'a Land-anythin or beneth or on s&ra"e in its nat&ral state 'b Benets arising out of land (Prots a prendre) -he essentials are'i he person "laimin m&st have an interest in the land 'ii It m&st be in respe"t o prod&"e or proft o the soil E.-8 sells a orest to 2$ the trees$ rivers$ minerals et" all ormin part o the land or the benefts to arise o&t o land$ !ill o !ith it. '" Things attached to earth 'i hins rooted in the earth-trees$ shr&bs 'e%"ept standin timber$ ro!in "rops and rass 'ii hins imbedded in the earth-ho&ses$ b&ildins b&ildins 'iii hins atta"hed to !hat is so embedded or permanent benef"ial en9oyment o that !hi"h is embedded ':o"trine o f%t&res-:oors$ f%t&res-:oors$ !indo!s are atta"hed to the ho&se or permanent en9oyment o ho&se. 'iv Chattel atta"hed to earth or b&ildin-the deree$ manner$ e%tent and strenth o atta"hment o "hattel is taken into "onsideration. -Doctrine of tures -4omethin anne%ed to the reehold. ;hen a movable be"omes immovable 'a !uid !uid plantatur solo solo credit -!hatever is planted in the earth$ be"omes the part o earth. It applies only !hen there is no "ontra"t to the "ontrary 'b !uid !uid inaedicature solo solo credit -!hatever is b&ilt into or embedded into or atta"hed to soil be"omes part o the earth. /&t it doesn5t apply to trade f%t&res. -"ase on Doctrine of #itures '1 Bamdev Panigrahi v$ Manorama %ai&
-Movable property-Property o every des"ription e%"ept immovable property 'Riht o !orship$ royalty$ any ma"hinery !hi"h is not atta"hed to earth and "an be shited rom one pla"e to another$ ) riht to re"over maintenan"e$ :e"ree or arrears$ standin timber$ ro!in "rops and rass.
-'tanding timber-) tree that has attained its &ll ae$ heiht and dra!s minim&m s&stenan"e rom earth
ere the intention is o reat importan"e. I the transa"tion is the immediate$ the ob9e"ts !ill be movable. /&t i the "ontra"t reardin s&"h ob9e"ts e%tends to many a year or i the o!ner o the trees is interested in &rther veetative ro!th$ then they !ill be treated as immovable property. he transer o trees standin on land does not amo&nt to the transer o the land also. -Timber tree-) tree !hi"h is ro!in and dra!in s&stenan"e rom soil. -Cases '1 nand Behera v$ 'tate- ) riht to "at"h a!ay fsh rom Chilika 0ake$ over a n&mber o years !as held to be proft a prendre. '/enefts arisin o&t o land '7 'hanta Bai v$ 'tate ('tanding Timber and Timber tree) -Riht to enter land$ "&t and "arry a!ay !ood over a period o 17 years !as held to be immovable property. '/enefts arisin o&t o land and 4tandin timber and timber tree '? 'tate v$ Titaghur Paper Mills "ompany& -Tests to determine hether a property is movable or ture 'a Degree or mode of attachment and result of its detachment 'b *b+ect or purpose of attachment '" By hom it is brought or attached
Chapter 7 )ttestation '4e"tion-?
ttest-means to sin and !itness any a"t. )ttestin as per P) means a person has sined the do"&ment by !ay o testimony o the a"t that he sa! it e%e"&ted. he la! re@&ires some a&thenti"ity o the do"&ment and that it !as e%e"&ted by a person5s ree !ill and &nderstandin and !itho&t any or"e$ ra&d or "oer"ion. -%e!uisites '1 there m&st be atleast t!o !itness '7 it is not ne"essary that all the !itnesses m&st sin at the same time '? it is ne"essary that the !itness m&st sin in the presen"e o the e%e"&tants 'A it is ordinarily ne"essary that the !itness m&se see 'a the e%e"&tants sine m&st "ertiy that he a"t&ally sa! the e%e"&tant sin the do"&ment. '+ he pardanashin lady "an be a !itness '13 he !itness sho&ld be independent-"ases '1 Padarath ,alai v$ %am -arain (Pardanashin lady)-here !ere t!o pardanashin ladies !ho !ere the mortaers and !ho did not appear beore the 7 attestin !itnesses !hile e%e"&tin the instr&ment. he "o&rt held that sin"e the 7 !itnesses !ere a"@&ainted !ith the voi"es o both the ladies and on these ro&nds the "o&rt held that the attestation done by t!o !itnesses !ere en&ine and valid. '7 M$L$$ .abbar v$ ,$/$ 'astri& he se"&rity bond !as sined by three !itness$ a soli"itor and the reisterin o6"er. 7 o&t o the ? !itnesses and the soli"itor !itnessed the do"&ment 9&st or the sake that they have identifed the e%e"&tants. he "o&rt held some "ondition to be &lflled or an a&thenti" attestation. he "o&rt held that the reisterin o6"er "an also be a attestin !itness i it "an be proved that he a"ted animo attestandi. I it &lflls all the "ondition o 4e"tion ? P)$ then the attestation is valid.
Chapter ? Doti"e 'ection 0 TP&-otice-It is a kno!lede o a a"t ) person is said to have a kno!lede o a a"t !hen'1 he a"t&ally kno!s the a"t '7 !hen$ b&t or his !ish&l abstention$ rom an in@&iry or sear"h !hi"h he o&ht to have made$ or ross nelien"e$ he !o&ld have kno!n it '"onstr&"tive or imp&ter noti"e -Types of notice '1 ctual-)"t&al as the term spe"ifes$ !here the person in a"t&al possess the kno!lede o the a"t. It is on the party o the imp&tin the noti"e to prove that the other party a"t&ally had the kno!lede. '7 "onstructive 'a illful abstention from an in!uiry or search- ) sells a property to /. 'b 1ross negligence -) took a loan rom )/C bank and kept the title deed o his ho&se !ith the bank as se"&rity. For payin oG the debt amo&nt$ ) asks the bank to handover the title deed so that he "an strike a ood deal or sellin his ho&se. he bank a"tin neliently ave the papers to ). ) aain on the same papers applied or loan to other banks. >ere the bank !as in a (ross nelient. '" %egistration as a notice -) sells his ho&se to / thro&h a reistered instr&ment. ) aain tries to sell the same ho&se to C. >ere$ la! imposes a d&ty on C to o to the reistrar o6"e and "he"k the oriinal title o the property. I he doesn5t do so$ his is to a"e detrimental "onse@&en"es as he !o&ld be imp&ted !ith "onstr&"tive noti"e o reistration transa"tion. 'd ctual Possession as a notice -) sells a property to /. ;hile C !as the real o!ner and !as in possession o the property. ) "o&ld have made some in@&iries abo&t the /5s stat&s and his possession in the property and by doin so he "o&ld have had the kno!lede that the a"t&al o!ner !as C !ho is in a"t&al possession o the property. 'e Imputed -otice-he &nderlyin prin"iple o this is that no person shall be allo!ed to et rid o the do"trine by simply employin an aent.) person is deemed to have had noti"e o the a"t i his aent a"@&ired noti"e 'i !hile a"tin on his behal 'ii in the "o&rse o b&siness 'iii to !hi"h b&siness$ the a"t is material. /&t i the aent by ra&d$ "on"eals the a"ts$ the prin"ipal "annot be "hares !ith noti"e. -"ases '1 M" v$ ,a+i bdul 1afoor ("onstructive notice) -) be"ame insolvent. >is property !as vested !ith the o6"er reven&e. M&ni"ipality asked or the d&es pendin over the property. Re"eiver took the permission o the "o&rt to sell the property to satisy the d&es o m&ni"ipality. /&t the re"eiver a"tin neliently did nothin ater!ards and the d&es !ere remained &npaid or B years. he person !ho p&r"hased the property in a&"tion asked the re"eiver abo&t any arrears b&t the re"eiver intentionally didn5t ive any inormation. ;hen the person "ame to kno! abo&t it$ the m&ni"ipality "ontended that he is to take the property s&b9e"t to all the dee"ts o the title and do"trine o "aveat emptor applies here. he "o&rt held that the plaintiG "o&ld not have reasonably tho&ht that the m&ni"ipality had not "ared to se"&re the payment. >ere in this "ase it is the m&ni"ipality has a"ted neliently in not providin the inormation !hen he asked or the same. h&s$ the plaintiG "annot be f%ed !ith "onstr&"tive noti"e. '7 %am -ias v$ Bano -
Chapter-A ranser o Property
'ection 2 TP-ranser o property means !here a livin person "onveys property. It is "reatin o a ne! title and passin on the property to some other livin person or more livin persons or to himsel. he :efnition in"l&des'1 0ivin persons-in"l&des$ "ompany$ asso"iation$ body o individ&als$ to himsel '7 Property-o!nership$ tenan"y$ "opyrihts$ trademarks et". '? ranser-o either all the rihts or interest in the property or transer o some s&bordinate rihts F&t&re property "an5t be a s&b9e"t o transer be"a&se o spe"&lation. -3inds of transfer -4ale$ mortae$ lease$ it et". -4ill& is not a Htranser o property. Cases on ;ill'1 -$ %amaiah v$ '$ -agra+ ("ase eplaining the di5erence beteen Transfer of Property and 4ill)-) !ill !as made in avo&r o nephe! o ). he !ill !as "hallened by the !ido! o ) thro&h her brother. 4he "ontended that the ;ill !as ot &p do"&ment and she is the one !ho !ill s&""eed the property as a sole leal heir o ). he nephe! took an in9&n"tion and the "o&rt dire"ted the !ido! to maintain a stat&s @&o. Mean!hile$ ater some time she died and beore her death she e%e"&ted a !ill in avo&r o her brother. >er brother "ontended in the "o&rt that he may be allo!ed to appear as respondent in pla"e o the !ido!. >e "ontended that she had be@&eathed her property to him and his "hildren and thereore he is one o the "o-o!ners o the property !hi"h !as the s&b9e"t matter. he nephe! "ontended that the ;ill is in brea"h and defan"e o the order o stat&s @&o. he "o&rt held that the ;ill and transers are both diGerent. In transer$ the property is transerred inter vivos b&t ;ill only be"omes operative !hen the person makin it$ dies. he transer "reates a ne! title !hile a !ill is a mere spe"&lation. ;ill only re&lates s&""ession. he ranser is immediate and irrevo"able !hile ;ill is revo"able and "omes into operation only ater death. he "o&rt held the ;ill is not same as transer. ) ;ill in"l&des only those intention o a testator !ith respe"t to his property !hi"h he desires to re&late s&""ession and it "reates no ne! title$ o!nership riht and nor the possession is aGe"ted. >en"e$ the !ill is not the part o transer o property$ b&t it never "reated a ne! title and he is liable to be released.
Chapter B ;hat kind o Property "an be transerred '4e"tion a$ A? -4hat may be transferred ('ection 6) )lienation rei preert&r 9&ri a""res"endi !hi"h means la! avo&rs alienation to a""&m&lation. )ny kind may be transerred and the one !ho is opposin the non-transerability sho&ld prove that &nder !hi"h la! or "&stom the property "an5t be transerred -'pes successionis - 'ection 6a ;here the heir has ot only a mere possibility to et the property i.e. !here there is only a spe"&lation$ the heir "annot transer the spe"&lated property to someone else. '1 >eir-apparent '7 relation obtainin lea"y on the death o kinsman '? any other mere possibility o like nat&re. E-)$ ater death$ leaves property !orth "rores to !ie /. >ere$ C$ the brother o ) is havin a mere possibility o ettin the property. It "o&ld be possible only i / dies leavin no "hild behind. -Doctrine of #eeding empty grant by estoppels ('ection&70) Transfer of property by any unauthorised persons ho subse!uently ac!uires interest in property transferred -;here any person ra&d&lently or erroneo&sly represents that he is a&thori=ed to transer "ertain immovable property and proesses to transer s&"h property or "onsideration$ s&"h transer shall at the option o the transeree$ operate on any interest !hi"h the transeror may a"@&ire in s&"h property at any time d&rin !hi"h the "ontra"t o transer s&bsists. he eneral r&le is H nemo dat quod non habet !hi"h means no one "an ive to another$ !hat he himsel does not have. I any s&"h transer is e%e"&ted$ then is s&"h "ase$ &nder this se"tion$ prote"tion is iven to the bonafde p&r"haser. his 4e"tion is partly based on :o"trine o Estoppel. E-) transers a property o !hi"h he has no riht. >e does so ra&d&lently. / !ho a"ted bonafde is the p&r"haser. 4omeho!$ thro&h some it the property "omes to ). Do!$ the "o&rt "an be estopped the "o&rt "an "ompel ) to deliver the property to /. /&t it "o&ld be done only at the option o / !hile the "ontra"t s&bsists. he :o"trine also applies to mortae$ lease$ "hare and e%"hane. -8ssentials re!uisites of 'ection 70 'a Representation m&st be there rom transeror$ either ra&d&lently or erroneo&sly 'b he do"trine doesn5t apply !here the transeree already had the kno!lede o the a"ts or !here both the parties kne! the a"t '" :o"trine doesn5t apply !here the transer is orbidden by la! 'd ranser or "onsideration 'e he option o transeree- he transeree doesn5t et the riht over the property a&tomati"ally$ b&t he has to "laim it. here are other remedies also that the transeree has vi=. he "an fle a s&it or brea"h o "ontra"t$ fle a "ivil "ase or re"overy o p&r"hase-money$ a "ase o "heatin et". ' he :o"trine also doesn5t apply !here the "ontra"t has fnished or "an"elled-I the transeree has "an"elled or rep&diated or !here the money taken by the transeror has been paid ba"k$ in s&"h a sit&ation the do"trine doesn5t apply. ' ranser valid at the option o the transeree-Cases (9) .umma Mas+id v$ 3$ Deviah&(Di5erence beteen 'ection 6a and 70) 4e"tion a It is or movable and immovable properties It is or all kinds o transers Under this$ there is no misrepresentation o ra&d by the transeror b&t he transers only the basis o spes s&""essionis It deals !ith the transer o a mere possibility
4e"tion A? It is only or immovable properties It is or transers !ith "onsideration Misrepresentation or ra&ds is there on the part o the transeror relatin to the title o the property It deals !ith "onse@&en"es o misrepresentation
It is a r&le o s&bstantive la! he stat&s o the transer is void ab initio
It in"l&des r&le o estoppel he stat&s be"omes void at the option o the transeree
(:) 3artar 'ingh v$ ,arbans 3aur -) hind& !omen e%e"&ted a sale deed o the land belonin to her minor son. >er son$ on attainin ma9ority fled a s&it and "ontended that this sale !as not bindin on him and !as void. >C de"ided the "ase in his avo&r and ordered to ive him possession. /eore takin possession he died and property "ame to mother by s&""ession 'Class 1 heir. he transeree$ fled a s&it &nder 4e"tion A? and "laimed the property. he 4C held that or 4e"tion A? to apply$ t!o "onditions m&st be satisfed '1 ) misrepresentation either by ra&d or error by the transeror to the transeree that he is a&thori=ed to transer "ertain immovable property and a""epts to transer it or a "onsideration '7 !hen the property in iss&e "omes to the transeror$ then at the option o the transeree$ he is entitled to et the restit&tion$ !hile the "ontra"t o transer s&bsists. 4C held that the transeree has ailed to take reasonable "ase to as"ertain !hether the transeror is "ompetent or not to make transer on behal on her minor son. he transeror !as not misled. It is the d&ty o the transeror to in@&ire$ in !hi"h he ailed. h&s$ frst "ondition to 4e"tion A? is not proved. F&rther$ 4C said that the "ontra"t has to s&bsist$ i the transeree !ants restit&tion. /&t in this "ase$ the "ontra"t !as void ab initio as the mother
Chapter Restraints on ranser he la! avo&r alienation and not a""&m&lation. 'ection 9;-;here the property is transerred to the transeree by absol&tely restrainin !ith some "ondition !ith it vi=. that he "annot sell or that he "annot transer the property. 4&"h "onditions are void. -#eatures of '1 It is "alled "onditional transer '7 It talks only those "onditions !hi"h are s&bse@&ent to the vestin o the interest in the transeree '7 the absol&te restraint binds the transeree rom partin rom his interest in the property '? 4&"h "onditions are void 'A 4&"h "onditions are not void !hen 'i !here the "ondition is or the beneft o the lessor or those "laimin &nder him 'ii !here the "ondition is or the beneft o a !omen 'not bein >ind&$ M&slim or /&ddhist he e%"eption to 4e"tion 13 is that the lessor "an impose a "ondition on the riht to alienate o the lessee. It is so be"a&se the o!nership riht belons to the lessor and it is his riht to "hoose !ho his tenant !o&ld be and this riht "an5t be en9oyed by lessee. he other e%"eption is that then the "ondition i or the beneft o the !omen. E.'1 ) transers / his property !ith a "ondition that / shall never sell it. his "ondition is void and he may sell it or keep it. '7 ) transers his property to his !ie !ith a "ondition that she !o&ld have no po!er to sell the property !ith his "onsent. ) riht o transer "omes !ith the o!nership o the property and is inseparable. >o!ever there are e%"eptions to this also. here are t!o kinds o restrains'1 bsolute %estraint'i hese are void restraints as these takes a!ay the po!er or alienation "ompletely or s&bstantially E-) transer his property to / on a "ondition that / shall never sell it$ e%"ept or reliio&s p&rposes. '7 Partial %estraint'i it imposes some restri"tion on the alienation b&t the transeree is s&bstantially ree to alienate the property E.-) transer / his property on a "ondition that he shall not sell the property or reliio&s p&rposes. >ere the "ondition is imposed or only reliio&s se"tion and the transeree "an alienate to any other person other than or reliio&s p&rpose. h&s i the po!er to alienate is restri"ted to one person only then it is absol&te and void. -*ther eamples'1 sellin o the property at a f%ed pri"e is void '7 transeree shall not transer the property by !ay o it is a partial restraint '? transeree shall not transer the property or ? years is a partial restraint and it !o&ld be void
ive it or only ? years and ater that the !ido! !o&ld have the option to o""&py the premises or ? years at a nominal rent and i the tenan"y e%"eeded to seven years$ aain she !o&ld be entitled to o""&py the premises or a f%ed rent. he "o&rt held that s&"h "ondition on the riht o the transeree are void "onditions and these are stoppin him rom alienatin and en9oyin the property. he "onditions are absol&te in nat&re and are void. '7 e or!arded an appli"ation to the so"iety seekin permission to transer the property to the b&ilder5s asso"iation$ non-parsi !hi"h !as re9e"ted. he "o&rt took the de"ision JJJJJJJJJ '? 3$ Munisamy v$ 3$ /en>atasamy -here !as a partition bet!een parents$ 4on ) and 4on /. here !as a "ondition imposed on the share o the parents that they shall en9oy their share or their lie time and ater them$ the share !ill be e@&ally divided bet!een 4on ) and 4on /. It is to be noted that no s&"h "ondition !as imposed in the shares o the sons. he "ondition on the parent5s share !as an absol&te restraint be"a&se !ith s&"h a "ondition they !ere not in a position to alienate their property. he "o&rt held that the "ondition !as a void "ondition. -Restri"tion on the Free en9oyment o propertyRestri"tion rep&nant to interest "reated- '4e"tion 11-)ny "ondition !hi"h restraints the en9oyment o the property !hi"h is transerred absol&tely is void. E-) "ondition that the transeree sho&ld al!ays ive the land on a defnite rent or that he sho&ld not "<ivate in a parti"&lar manner$ are void "onditions. 4e"tion 13 It deals !ith the "onditions imposed on the transer It is appli"able to all transers !hether absol&te or partial It deals !ith the po!er to alienate otal restraint is void
4e"tion 11 It deals !ith the "onditions imposed on en9oyment It is appli"able only !hen the transer is absol&te It deals !ith the en9oyment he o!ner "an en9oy the property in any manner
E%"eption to 4e"tion 11 -he transeror "an impose "ertain restri"tions on the transeree i'1 ranseror5s o!n land is ad9a"ent to the land transerred to the transeree -'ection 7;&"onvenants-hese are the "onditions imposed by the transeror on the &se o land by the transeree or the beneft o his ad9oinin land. hese "ovenants are in !ritin "reatin an obliation !hi"h may be positive or neative'1 Positive "ovenant 'b&rden on land-it stip&lates the perorman"e o some a"t or payment o money '7 Deative-It restri"ts some a"ts vi=. not to raise the b&ildin.
Chapter * 0is Pendens 'Pendin litiation- 'ection 2: ("omplete) -lis pendence in short means that during the pendency of suit= the parties cannot transfer their properties$ -Ut lite pendent nihil innoveteur ?nothing ne should be introduced in a pending litigation -it aims to prevent m<ipli"ity o s&its o pro"eedins related to the same land. -;here a s&it or pro"eed is pendin bet!een t!o parties !ith respe"t to an immovable property$ and one o the parties thereto sells or other!ise transers$ the s&b9e"t matter o the litiation$ then the transeree !ill be bo&nd by the res< o the s&it or pro"eedin$ !hether or not he had noti"e o the s&it or pro"eedin. his r&le is kno!n as lis pendens. E- ) and / are neihbo&rs. / en"roa"hed )5s land. ) fled a s&it and !hile the s&it !as pendin / sold the property to C. ;hatever the de"ision the "o&rt ives$ !hether in avo&r or aainst /$ that C !ill also be bo&nd by that de"ision. Essentials o the :o"trine1 here m&st be penden"y o a s&it or pro"eedin 7 he s&it m&st be pendin in a "ompetent "o&rt ? he s&it m&st not be "oll&sive-here m&st not be a ra&d. E.- ) and / areed and "onspired that / !o&ld fle a s&it aainst ) in respe"t o a ho&se in )5s possession and d&rin the penden"y o the s&it / !o&ld sell that property to C !ith the belie that the sale-deed e%e"&ted in avo&r o C !o&ld be set aside by the "o&rt be"a&se o lis pendens and !ill divide the amo&nt e@&ally. hey !ork their plan. he de"ree oes in the avo&r o /. Do!$ the s&it bein "oll&sive and the possession !o&ld o to : and not /. A he riht to immovable property m&st be in @&estion dire"tly and spe"if"ally B he property in @&estion m&st be transerred or other!ise dealt !ith by any to the litiation he alienation m&st aGe"t the rihts o the other party -Cases'1 .ayaram Mudaliar v$ yyasamy& he property !as a&"tioned be"a&se o some money de"ree. he Karta had to repay "ertain debts on behal o the amily. ) member o the amily o the Karta fled a s&it or partition. he a&"tion took pla"e !hile the s&it !as pendin. he "o&rt held that the a&"tion !as hit by lis pendens as the alienation made by the Karta !ere ra&d&lent and not or the leal ne"essity and the share o the "laimant shall remain &naGe"ted in the partition. '7 Dalip 3aur v$ .eean %am& preemption case&(proceedings before the '" are a continuation of those in the original suit and that the principle of lis pendens as ell as restitution shall apply to the proceedings)& ) fled a s&it or possession by !ay o preemption aainst /. >e ot possession by !ay o de"ree. he opposite party fled an appeal and the same !as dismissed by >C. hey fled an appeal in 4C !hi"h !as also dismissed. hey fled a spe"ial leave petition. he leave !as ranted and appeal !as a""epted. :&rin this time$ ) sold the property to 8$ !ho raised an ob9e"tion that the de"ree o restit&tion "an5t be invoked aainst him. 4C held that the pro"eedins beore it are in "ontin&ation o those in the oriinal s&it and the prin"ipal o lis pendens as !ell as restit&tion shall apply to the pro"eedins. '? 1ovind Pillai v$ iyyappa 3rishanan &('uit led in the court ith incompetent +urisdiction)-) disp&te !as pendin in the "o&rt reardin some property. he plaint !as ret&rned be"a&se the "o&rt in !hi"h it !as presented !as not havin "ompetent 9&risdi"tion. /eore the s&it "o&ld be fled in a "ompetent 9&risdi"tion$ the person !ho had the possession e%e"&ted a it o the said property in avo&r o his !ie and son. he @&estion !as that !hether the it deed !o&ld be hit by lis pendensJ he "o&rt held at the time !hen the it !as e%e"&ted$ there !as no s&it pendin in the "o&rt related to the said property. >en"e$ the it is not hit by lis pendens. 'A '1 #ilms echange v$ ,$,$ Mahara+a (Pla@a "inema case) -he plaintiG ave Rs.7B3333<- to the respondents aainst the se"&rity o bales o "otton. he respondents also e%e"&ted a reistered-mortaed deed o pla=a "inema in avo&r o the plaintiGs to "lear the
d&es. )s the plaintiGs !ere &nable to re"over the d&es$ they fled a s&it or the sale o Pla=a "inema. he theatre !as atta"hed to the de"ree aainst the respondents. :&rin the atta"hment$ the respondent e%e"&ted an &nreistered lease deed in avo&r o some "ompany and they "ontended that they "arried on the b&siness sin"e 1+A3. heir lease fnished in 1+A and a ne! reistered lease !as e%e"&ted in 1+B. he time d&rin !hi"h the property !as in disp&te &nder a s&it in the "o&rt !as bet!een 1+B7-1+3. h&s the reistered lease !as e%e"&ted d&rin the lis pendens. Co&rt held$ that sin"e the lease !as reistered d&rin lis pendens$ the riht o the tenants !ere s&b9e"t to the de"ision o the "o&rt. 'B '$.$ Mahaprabhu v$ P$"$ "hatter+ee-
Chapter-13 Mortae '4e"tion B* ) mortae is a kind o se"&rity iven by the debtor to the "reditor. he ob9e"t o a mortae is to se"&re the debt or other obliations. It prote"ts a "reditor$ or even i the borro!er be"omes insolvent the money "an be reali=ed rom the property iven by !ay o se"&rity.
&8lements of Mortgage 1 ranser o interest 7 4pe"if" immovable property ? Consideration or Mortae &Types of Mortgages 1 4imple mortae ('ection 2Ab)-Possession is not iven to the "reditor b&t riht to sell is iven. he "reditor has no riht to "olle"t rent rom the mortaed property. I the "reditor !ants to sell the property in dea< o payment o his money$ he has to take permission rom the "o&rt frst. 7 Mortae on "ondition sale ('ection 2Ac)-In this$ the property is "onsidered as sold i "ondition set are met. 'a On "ondition that on dea< o payment o the money on a "ertain date the sale shall be"ome absol&te 'b I the money is paid on the date f%ed$ the sale shall be"ome void '" On "ondition that on s&"h payment bein made$ the b&yer shall transer the property to the seller In this kind o mortae$ the mortaee has a @&alifed o!nership. ? Us&r&"t&ary Mortae ('ection 2Ad)-Possession and en9oyment rihts are iven to the "reditore "an "olle"t rent and "an also ad9&st the same in the interest amo&nt o the mortae money or in the mortae money itsel or in both. A Enlish Mortae ('ection 2Ae)-In this the title o the property is iven to the "reditor
avo&r o the mortaee in dea< o payment. Riht o redemption is a stat&tory riht o the mortaor and no la! or "ontra"t "an take a!ay this riht. his is be"a&se i the mortaor is in need o money$ then the position o the mortaee is dominatin and he "an p&t "ertain "ondition !hi"h "an !ork as a "lo on the redemption o the property. he la! in s&"h "onditions$ prote"t the mortaor and s&"h "onditions are "onsidered as void.
&"onditions hat or> as a clog and are void '1 I the "ondition is that in ail&re o payment o the mortae money !ithin a spe"ifed time$ the mortaor !ill have no riht<"laim over the mortaed property and the mortae-deed !ill be "onsidered as a sale deed. his "ondition is a "lo and void. /&t i the mortaor himsel e%e"&tes a sale deed in avo&r to mortaee ater the spe"ifed time is over$ then that sale deed is a valid deed. '7 0on term o mortaes$ is not a "lo in itsel$ &nless it is proved that there !as a ra&d or &nd&e inL&en"e !ith eviden"e o it. I it is proved$ then the "ondition !ill be void. )nd also$ i the lenth is &nreasonable or oppressive then it !ill be a "lo. '? 4tip&lation barrin mortaor5s Riht o redemption ater "ertain period'A Restraint on )lienation 'B Redemption restri"ted to mortaor ' Penalty in "ase o dea<'1 1angadhar v$ 'han>ar Lal (Long term clog)- he mortae deed read HI or my heirs !ill not be entitled to redeem the property or a period o *B years. )ter the e%piry o *B years$ !e shall redeem it !ithin months other!ise !e shall have no "laim over the mortaed property and the mortaee shall have no riht to "laim the money ba"k. his deed !ill be "onsidered as a sale deed. he "o&rt held that lon term mortae is not a "lo in itsel &nless it is proved that the mortaee has not taken &nd&e advantae o the "ondition o the mortaor. here m&st not be any ra&d. I it is proved$ then the mortae is !ith "lo. It !as held in that in the present "ase it is "lear that there !as no &nair advantae taken by the mortaee and *B years is not a "lo in the "ir"&mstan"es o this "ase. '7 P$3$ 1ovind+i v$ /$3$ Purohit (Long term clog)-he appellant made a mortae deed in avo&r o mortaee and in !hi"h it !as stated that the d&ration o the mortae is or ++ years and the mortaor "an only "laim it ater the e%piration o the said time. he mortaee !as iven the &ll possession o the land and there !as another "la&se in the deed that the mortaee has the riht to make str&"t&ral "hanes in the said property and the mortaor at the time o redemption has to pay all the e%penses in"&rred by the mortaor on any "onstr&"tion or repair !ork done by him. he mortaee "onstr&"ted a ne! str&"t&re by demolishin the old one. h&s$ the Co&rt held that s&"h a "ondition is a "lo on the mortae and it makes "lear that the mortaee took &nd&e advantae o the "ondition o mortaor. >en"e$ the mortaor is allo!ed to redeem. '? '$ 'ingh v$ '$'ingh (Long term clog)-he mortaor !as fnan"ially tiht. >e mortaed a property or a "onsideration o Rs. ,333<- to the mortaee. he "ondition o the deed !as that the mortae is or ++ years and he also en9oyed &s&r&"ts o the said property. In order to arrane Rs. ,333<- or the payment o the mortae$ the mortaor sold some part o the mortaed property to one ). he mortaee re&sed to ive possession o the property. It !as held by the "o&rt that the mortaee !as in a dominatin position and took advantae o the pliht o mortaor by imposin a "lo o ++ years and not only this$ he also kept on dra!in &s&r&"ts rom the said property or the last 7 years. It !as de"lared a "lo.
'A '$1$ Dhula v$ ' L Te+shi -)ny provision in the oriinal mortae-deed to the eGe"t that i the debt is not paid at the proper time$ the mortaee shall be"ome the o!ner o the property is void$ and indeed the "o&rts treat as void any provision !hi"h "lo the riht to redeem i.e. either makes redemption &nd&ly di6"< or provides that the mortaee shall retain some riht aGe"tin property ater the debt has been redeemed. -%ight of foreclosure of sale ('ection 6C)&
Chapter 1B
(its '4e"tion 177
'ection 9::-) it is a transer o the o!nership in an e%istin movable or immovable property made vol&ntarily and !itho&t "onsideration. /la"kstone-(its are al!ays rat&ito&s$ rants are &pon some "onsiderations or e@&ivalent. %e!uisites& 1. !o partners m&st be there 'a :onor-m&st be "ompetent-ma9or 'a tr&stee and minor "annot make a it. 'b :onee-may be o any ae b&t i minor then &ardian takes on his behal 7. (it "an be made only o the e%istin property$ its o any &t&re property is not valid. ?. Property "an be movable or immovable$ Corporeal or in"orporeal$ a"tionable "laims$ it o mortae A. (it m&st be iven vol&ntarily and no ra&d or misrepresentation sho&ld be there B. (it sho&ld be !itho&t "onsideration other!ise it !ill not be "onsidered as a it . )bsol&te intereste has to a""ept the "omplete it. '7 /&t i ) makes t!o separate its o shares o 8 and 2 "ompany$ then the donee "an a""ept one and re&se the other. 'uspension or %evocation of gift can be done in only to conditions& '1 In "ase o ind&"ement or misrepresentation
'7 Revo"ation by )reement- he "ondition o the areement sho&ld not be illeal or immoral and sho&ld not be rep&nant to the estate. /oth$ the donor and the donee m&st aree at the "ondition in the areement.
-"ases (9) Tila Bea v$ Manu Bea -he donor e%e"&ted a it deed in avo&r o the donee on a "ondition that he !o&ld look ater and serve her d&rin her lietime. he donee let her and remarried. 4he "an"elled the it. he "o&rt said that it !as only a pio&s !ish o the donee to look ater the donor and only on this "ondition the it "annot be "an"elled. he "o&rt also said that frstly$ there !as no areement bet!een the both reardin the revo"ation$ se"ondly this sho&ld not depend on the !ill o the donor. >en"e$ the it "an5t be revoked. (:) 3artari v$ 3eal 3rishan (undue inEuence) -,3 year old ailin !ido! lady. :a&hter took "are o her. >er "ollaterals took her to some pla"e and made her sin a it deed in their avo&r and they also ot it reistered. :a&hter "ame to kno! abo&t it. Mean!hile the lady died. he "ollaterals took the possession o the property as soon as she died. :a&hter fled the s&it and "ontended that the it deed !as taken by ra&d and &nd&e inL&en"e. he "o&rt held that it is "lear by the "ond&"t o the "ollaterals that the sinat&res o the lady !ere taken by ra&d and &nd&e inL&en"e as 9&st !hen she died$ they took the immediate possession o the property in iss&e. >en"e$ the it is void.
D*"T%I-8 *# P%T P8%#*%M-"8 he :o"trine o Past Perorman"e$ based on prin"iple o e@&ity$ developed in Enland and !as s&bse@&ently added to the ranser o Property )"t$ 1**7 via the )mendment )"t o 1+7+. In la! o "ontra"ts 'or e..$ a "ontra"t or sale$ no rihts pass to another till the sale is "omplete /&t i a person ater enterin into a "ontra"t perorms his part or does any a"t in &rtheran"e o the "ontra"t$ he is entitled to reimb&rsement or perorman"e in "ase the other party dras its eet. 4e"tion B?) says that i a person makes a areement !ith another and lets the other person a"t on the behal o the "ontra"t s&"h a person "reates an e@&ity himsel that "an not be resisted on the mere ro&nds o absen"e o ormality in the eviden"e or "ontra"t o s&"h a transer. h&s$ i the "ontra"t has not been reistered or "ompleted in the pres"ribed manner$ the transeror "an still not o aainst the transeree or anyone "laimin &nder him. >o!ever$ the deed sho&ld not be &nsined or &nstamped. Dothin in this se"tion aGe"ts the rihts o a transeree or "onsideration even i he had no noti"e o "ontra"t o part perorman"e. Ill&stration ) "ontra"ts !ith / to sell his plot or 8 amo&nt o money. ) a""epts the advan"e rom / to!ards the sale o the plot and hands over the possession o the said plot to /. )ter some time$ / is ready to pay the remainin sale amo&nt b&t ) re&ses to a""ept the same. F&rther ) asks / to hand over the plot ba"k to him. >ere / is ready to perorm his part o the "ontra"t b&t ) is not. In s&"h a "ase$ / "an brin a "ase re@&irin spe"if" perorman"e rom ). It does not matter that the sa le !as not reistered. )s per la!$ a transer o immovable property val&ed over Rs. 133 has to be reistered. /&t it !as believed that stri"t "omplian"e may lead to e%treme hardships espe"ially !here one party has already perormed his part in the "onfden"e that the other party !ill honor the areement. I s&"h reistration or other ormalities have not taken pla"e$ the do"trine o part perorman"e !ill be appli"able. I s&"h a transeree takes possession o the property$ he "an not be evi"ted d&e to an &nreistered "ontra"t. he se"tion is a deense as !ell as a riht that helps prote"t the possession aainst any "hallene. It tries to prevent ra&d on the mere basis o ineGe"tive eviden"e o the transer. he se"tion does not "oner a title &pon the transeree in possession b&t it imposes a stat&tory bar on the transeror. Equity looks to the intent rather than to the form
8''8-TIL' *# T,8 D*"T%I-8 *# P%T P8%#*%M-"8 a here m&st be a !ritten "ontra"t or transer o an immovable property sined by or on behal o the transeror. he do"trine "an not be applied i there is a void areement or no areement. b here m&st be "onsideration " he "ontra"ts sho&ld ive o&t the terms o the transer !ith reasonable "ertainty d he transeree m&st have taken possession as a res< o this "ontra"t or "ontin&ed in possession i he !as already in possession o the property e he transeree m&st have done some a"t in &rtheran"e o the "ontra"t. )"ts done prior to the areement or independent o it "an not be deemed to be part perorman"e o
the "ontra"t and he transeree sho&ld have perormed his part o the deal or be !illin to perorm it.
