Transfer of Property MOVABLE/IMMOVABLE PROPERTY The T.P.A. 1882 has not defined this ter. !e". # ere$y $ays do%n that& 'Io(a)$e property* does not in"$+de standin, ti)er& ,ro%in, "rops or ,rass. The definition of 'Io(a)$e property* ,i(en in this se"tion is not e-ha+sti(e. It sip$y says Io(a)$e property does not in"$+de standin, ti)er& ,ro%in, "rops or ,rass. The definition of io(a)$e property in the 0enera$ $a+ses A"t is a$so not e-ha+sti(e. That definition is as fo$$o%s A""ordin, to !e".# !e".# 234 of the 0enera$ 0enera$ $a+ses A"t& A"t& the 'Io(a)$e 'Io(a)$e property property sha$$ in"$+de $and& )enefits to arise o+t of $and& and thin,s atta"hed to the earth or peranent$y fastened to anythin, atta"hed to the earth.* 'Atta"hed to Earth* eans 5 a4 rooted in the earth& as in the "ase of trees and shr+)s6 )4 i)edded in the earth& as in the "ase of %a$$s or )+i$din,s6 or "4 atta"hed to %hat is so i)edded for the peranen peranentt )enefi"ia$ en7oyent of that to %hi"h is atta"hed. The de,ree& anner& e-tent and stren,th of atta"hent of the "hatte$ to the earth or )+i$din,& are ain ain feat+res to )e re,arded. re,arded. A$$ the three three aspe"ts in in the "hara"ter "hara"ter of the atta"hent of the trees or shr+)s rooted to the earth& or %a$$s or )+i$din,s i)edded in that sense& the f+rther test is %hether& s+"h an atta"hent is for the peranent )enefi"ia$ en7oyent en7oyent of the io(a)$e io(a)$e property property to %hi"h it is atta"hed. e$d& e$d& the atta"hentt of oi$ en,ine to earth tho+,h it is +ndo+)ted$y a fi-t+re& is for the )enefi"ia$ atta"hen en7oyent of the en,ine itse$f and in order to +se en,ine& it has to )e atta"hed to the earth and the atta"hent $asts on$y so $on, as the en,ine is +sed. 9hen it is not +sed it "an )e deta"hed ans shifted to soe other p$a"e. The atta"hent in s+"h a "ase does not a:e the en,ine part of the $and and as io(a)$e property. The En,$ish $a% of fi-t+res has no stri"t app$i"ation to the $a% in India re$atin, to a"hinery atta"hed to the earth or peranent$y fastened to anythin, atta"hed to earth. The ;+estion %hether any a"hinery s+"h as an oi$ en,ine i)edded in earth or peranent$y fastened to any thin, atta"hed to the earth is o(a)$e or io(a)$e property& is a i-ed ;+estion of fa"t and $a% dependin, +pon the fa"ts and "ir"+stan"es of ea"h "ase. The test en+n"iated )y the de"ided "ases to deterine the "hara"ter and nat+re of the property are i4 9hat is the intendent& o)7e"t and p+rpose of insta$$in, the a"hinery < %hether it is the )enefi"ia$ en7oyent of the )+i$din,& $and or str+"t+re& or the en7oyent of the (ery a"hinery= a"hinery= ii4 The de,ree and anner of atta"hent or anne-ation of the a"hiner a"hinery y to the earth. 9hether the a"hinery a"hinery and and the )+i$din, or $and $and on %hi"h it is insta$$ed& insta$$ed& are o%ned o%ned )y one and the sae person& nora$$y it sho+$d )e inferred& +n$ess the "ontrary is preyed&
that the o)7e"t and p+rpose of insta$$in, the a"hinery is to ha(e )enefi"ia$ en7oyent of the entire )+i$din, or $and& )+t not the ro$e en7oyent of the (ery a"hiner a"hinery y itse$f. o%e(er& %here the a"hinery i)edded or insta$$ed and the )+i$din, or $and )e$on, to t%o different persons the intendent and o)7e"t of the person is in possession and en7oyent of the property in insta$$in, or anne-in, the a"hinery +st nora$$y )e pres+ed& +nti$ the "ontrary is pro(ed& to )e to e-p$oit the )enefit of the a"hinery a$one& as he is not interested in the )+i$din, or the $and. 9here the )+i$din, or $and or fa"tory is ta:en on $ease for a ter )y a $essee and he insta$$s "ertain a"hinery on that property d+rin, the $ease period& it as to )e he$d that his o)7e"t and p+rpose of insta$$in, the a"hinery %as the )enefi"ia$ en7oyent of the (ery a"hiner a"hinery y d+rin, the period of his $ease. A tenant& %ho is in possession of $and for a "ertain period& %o+$d not intend to a:e any peranent ipro(eent to the $and itse$f )+t try to a:e +se of any a"hine or oi$ en,ine d+rin, the period of his $ease. In a$t pro)a)i$ity& he ay reo(e the oi$ en,ine or a"hine fro that $and the oent his o)7e"t of its )enefi"ia$ en7oyent d+rin, his $ease period is a"hie(ed. In a "ase& the fi-t+re on the $and "annot )e tered to )e peranent one so as to )rin, it %ithin the eanin, eanin, of io(a)$e io(a)$e property. The nat+re nat+re of the property property on %hi"h %hi"h the a"hinery %as insta$$ed& is a$so a re$e(ant and ateria$ fa"tor to )e ta:en into "onsideration in deterinin, the "hara"ter of the a"hinery. 9here the )+i$din, in %hi"h a"hinery a"hinery s+"h as an oi$ en,ine or a "inea "inea pro7e"tor pro7e"tor has )een insta$$ed insta$$ed )y the o%ner& is not a p+""a and peranent one& )+t is on$y a teporary shed or tent& his intention and p+rpose "o+$d on$y )e the )enefi"ia$ en7oyent of the (ery a"hinery )+t not the )+i$din,. o%e(er& %here a "inea pro7e"tor and an oi$ en,ine ha(e )een insta$$ed in a peranent "inea theatre& the p+rpose and o)7e"t of insta$$in, the sae +st in(aria)$y )e the )enefi"ia$ en7oyent of the (ery "inea theatre. The intendent& o)7e"t and p+rpose of the person %ho fastens or insta$$s the a"hinery has to )e inferred has to )e inferred fro the pro(ed fa"ts and aditted "ir"+stan"es. The tests en+n"iated )y the de"ided "ases to deterine the "hara"ter and nat+re of the property are i4 In o$$and (. od,son $oos atta"hed to earth and f$oor of a %orsted i$$ %ere he$d to )e fi-t+res. In Lei,h (. Tay$or& he$d that& "ertain (a$+a)$e "apa"ities affi-ed )y a tenant to the %a$$s of a ho+se for the p+rpose of ornaent and for the )etter en7oyent of the as "hatt$es& had not )e"oe part of the ho+se& )+t fored part of the persona$ estate of the tenant for $ife. In !+)rahania >ir (. hinda)ara& the a"hinery insta$$ed )y a tenant for r+nnin, a "inea in the preises ta:en )y hi on $ease for his o%n profit& %as he$d to )e o(a)$e property property %ithin the the eanin, of !e"tion !e"tion # of Transfer of Property A"t& A"t& as it %as not peranent peranent ipro(eent ipro(eent to the preises. preises. Land.5 onsidered in its $e,a$ aspe"t& $and in"$+des the fo$$o%in, e$eents
that the o)7e"t and p+rpose of insta$$in, the a"hinery is to ha(e )enefi"ia$ en7oyent of the entire )+i$din, or $and& )+t not the ro$e en7oyent of the (ery a"hiner a"hinery y itse$f. o%e(er& %here the a"hinery i)edded or insta$$ed and the )+i$din, or $and )e$on, to t%o different persons the intendent and o)7e"t of the person is in possession and en7oyent of the property in insta$$in, or anne-in, the a"hinery +st nora$$y )e pres+ed& +nti$ the "ontrary is pro(ed& to )e to e-p$oit the )enefit of the a"hinery a$one& as he is not interested in the )+i$din, or the $and. 9here the )+i$din, or $and or fa"tory is ta:en on $ease for a ter )y a $essee and he insta$$s "ertain a"hinery on that property d+rin, the $ease period& it as to )e he$d that his o)7e"t and p+rpose of insta$$in, the a"hinery %as the )enefi"ia$ en7oyent of the (ery a"hiner a"hinery y d+rin, the period of his $ease. A tenant& %ho is in possession of $and for a "ertain period& %o+$d not intend to a:e any peranent ipro(eent to the $and itse$f )+t try to a:e +se of any a"hine or oi$ en,ine d+rin, the period of his $ease. In a$t pro)a)i$ity& he ay reo(e the oi$ en,ine or a"hine fro that $and the oent his o)7e"t of its )enefi"ia$ en7oyent d+rin, his $ease period is a"hie(ed. In a "ase& the fi-t+re on the $and "annot )e tered to )e peranent one so as to )rin, it %ithin the eanin, eanin, of io(a)$e io(a)$e property. The nat+re nat+re of the property property on %hi"h %hi"h the a"hinery %as insta$$ed& is a$so a re$e(ant and ateria$ fa"tor to )e ta:en into "onsideration in deterinin, the "hara"ter of the a"hinery. 9here the )+i$din, in %hi"h a"hinery a"hinery s+"h as an oi$ en,ine or a "inea "inea pro7e"tor pro7e"tor has )een insta$$ed insta$$ed )y the o%ner& is not a p+""a and peranent one& )+t is on$y a teporary shed or tent& his intention and p+rpose "o+$d on$y )e the )enefi"ia$ en7oyent of the (ery a"hinery )+t not the )+i$din,. o%e(er& %here a "inea pro7e"tor and an oi$ en,ine ha(e )een insta$$ed in a peranent "inea theatre& the p+rpose and o)7e"t of insta$$in, the sae +st in(aria)$y )e the )enefi"ia$ en7oyent of the (ery "inea theatre. The intendent& o)7e"t and p+rpose of the person %ho fastens or insta$$s the a"hinery has to )e inferred has to )e inferred fro the pro(ed fa"ts and aditted "ir"+stan"es. The tests en+n"iated )y the de"ided "ases to deterine the "hara"ter and nat+re of the property are i4 In o$$and (. od,son $oos atta"hed to earth and f$oor of a %orsted i$$ %ere he$d to )e fi-t+res. In Lei,h (. Tay$or& he$d that& "ertain (a$+a)$e "apa"ities affi-ed )y a tenant to the %a$$s of a ho+se for the p+rpose of ornaent and for the )etter en7oyent of the as "hatt$es& had not )e"oe part of the ho+se& )+t fored part of the persona$ estate of the tenant for $ife. In !+)rahania >ir (. hinda)ara& the a"hinery insta$$ed )y a tenant for r+nnin, a "inea in the preises ta:en )y hi on $ease for his o%n profit& %as he$d to )e o(a)$e property property %ithin the the eanin, of !e"tion !e"tion # of Transfer of Property A"t& A"t& as it %as not peranent peranent ipro(eent ipro(eent to the preises. preises. Land.5 onsidered in its $e,a$ aspe"t& $and in"$+des the fo$$o%in, e$eents
1. A deterinat deterinatee portion of the earths s+rfa"e. 2. Possi)$y the "o$+n of spa"e a)o(e the s+rfa"e. #. The ,ro+nd )eneath the s+rfa"e. ?. A$$ o)7e"ts %hi"h are on or +nder the s+rfa"e in its nat+ra$ state for e-ap$e& inera$s. Land in"$+des $a:es& ponds and ri(ers %ithin its )o+ndary. They are "a$$ed $and "o(ered )y %ater. @. A$$ o)7e"ts p$a"ed )y h+an a,en"y on or +nder the s+rfa"e& %ith the intention of peranent anne-ation. These )e"oe part of the $and& and $ose their identity as separate o(a)$es for e-ap$e& )+i$din,s& %a$$s and fen"es. Benefits to arise o+t of $and. 5 Apart fro property )ein, io(a)$e fro the physi"a$ point of (ie%& e(ery )enefit arisin, o+t of it and e(ery interest in s+"h property is a$so re,arded as io(a)$e property. A de)t se"+red )y a ort,a,e of io(a)$e property is an interest in$and and is& therefore& re,arded as io(a)$e property. The ri,ht to "o$$e"t $a" fro 7+n,$e& f$ash fro pond& ri,ht to ta:e inera$s& rent fro hat or ar:et p$a"e or ho+se are (ario+s i$$+strat i$$+strations ions of )enefits arisin, o+t of $and. In !hanta Bai (. !tate of Bo)ay& ri,ht to enter $and& "+t and "arry a%ay %ood o(er a period of t%e$(e years %as he$d he$d to )e io(a)$e io(a)$e property. Thin,s atta"hed to earth.55 The present se"tion defines the e-pression 'atta"hed to earth* as in"$+din, 5 a4 'Thin,s rooted in the earth* in"$+de s+"h thin,s as trees and shr+)s& )+t %here s+"h trees "onstit+te standin, ti)er they are not io(a)$e property. >or e-ap$e& Ba)oo$ trees and !eesha trees are ordinari$y standin, ti)er and are& therefore& o(a)$e property a$tho+,h they are thin,s rooted in the earth. Trees %hi"h )ear fr+its are not standin, ti)er )+t are "onsidered as io(a)$e property. There are ho%e(er& "ertain fr+it5)earin, trees& s+"h as an,o trees %hi"h are a$so +sed as a ti)er. 9hether s+"h trees are to )e re,arded as o(a)$e or io(a)$e property depends +pon the "ir"+stan"es of the "ase. If the intention is to +se the for the p+rpose of en7oyin, their fr+its& they %i$$ )e re,arded as io(a)$e property of en7oyin, their fr+its& they %i$$ )e re,arded re,arded as io(a)$e io(a)$e property. B+t if the the intention is to "+t "+t the do%n sooner sooner or $ater for the p+rpose of +ti$iin, the %ood for )+i$din, or other ind+stria$ p+rposes& they %o+$d )e ti)er and %o+$d a""ordin,$y )e re,arded as o(a)$e property. !ii$ar$y& ,ro%in, "rops and ,rass a$tho+,h rooted in the earth are not %ithin the definition of the ter io(a)$e property. These are a$$ thin,s +s+a$$y "ontep$ated as se(era)$e fro the soi$ and are re,arded a o(a)$e property. )4 'Thin,s i)edded in the earth in"$+de s+"h thin,s as ho+ses and )+i$din,s. There are& ho%e(er& "ertain thin,s %hi"h are i)edded in the earth yet they are not io(a)$e property as for e-ap$e& an an"hor i)edded in the $and to ho$d a ship. 9hen the arti"$e in ;+estion is no f+rther atta"hed to the $and )y its o%n %ei,ht& it is ,enera$$y to )e "onsidered "onsidered as o(a)$e property. property. B+t e(en in s+"h s+"h a "ase if the intention intention is to a:e a:e th arti"$es as part of the $and they do )e"oe part of the $and. Th+s& )$o":s of stones p$a"ed one on the top of another %itho+t any ortar or "eent for the p+rpose of forin, a dry
stone %a$$ %o+$d )e"oe part of the $and. E(erythin, therefore depends +pon the "ir"+stan"es of ea"h "ase and ain$y on t%o "ir"+stan"e& as indi"atin, the intention& (i. 14 the de"ree or ode of anne-ation. anne-ation. >or e-ap$e& e-ap$e& Loos atta"hed atta"hed to the f$oor and and )eas of a i$$ i$$ or tip +p seats fastened fastened to the f$oor f$oor of "inea ha$$s ha$$s are io(a)$e io(a)$e )+t not s"re%s (aht restin, on )ri":5%or: and ti)er and tapestries& and 24 the o)7e"t of the anne-ation. >or e-ap$e B$o":s of stone p$a"ed one on the top of another %itho+t any ortar or "eent for the p+rpose of forin, a dry stone %a$$& %i$$ )e"oe part of the $and )+t not the stones deposited in a )+i$ders yard and for "on(enien"e sa:e sta":ed on the top of ea"h other in the for of %a$$. An"hor of a ship %i$$ not )e part of $and ho%soe(er deeper it ay ha(e ,one in the earth. B+t if it is +sed to s+pport the strain arti"$e stands on the earth +pto its o%n %ei,ht& it %i$$ not )e part of the $and )+t if it is "a+sed to ,o deeper in the earth )y e-terna$ a,en"y& then it is part of a $and. "4 Thin,s atta"hed to %hat is so i)edded +st )e as the se"tion says& for the peranent )enefi"ia$ )enefi"ia$ en7oyent of that to %hi"h it is atta"hed. Th+s& the doors and %indo%s of a ho+se ho+se are atta"hed to to the ho+se for the the peranent en7oyent en7oyent of the the ho+se. B+t if the atta"hen atta"hentt is not intended to )e peranent& the thin,s atta"hed are not io(a)$e property& e.,.& e$e"tri" fans or %indo% )$inds. d4 hatte$ atta"hed to earth or )+i$din,. 5 If a "hatte$& i.e.& o(a)$e property property is atta"hed to earth or )+i$din,& it is io(a)$e property and it is a i-ed ;+estion of fa"t and $a%. The de,ree& anner& e-tent and stren,th of atta"hent of the "hatte$ to the earth of )+i$din,& are the ain ain feat+res to )e )e re,arded. A$$ the the three aspe"ts aspe"ts in the des"ription des"ription sho% that the atta"hent sho+$d )e s+"h as to parta:e of the "hara"ter of the atta"hent of the trees or shr+)s rooted to the earth or %a$$s or )+i$din,s i)edded in that sense& the f+rther test is %hether s+"h an atta"hent is for the peranent )enefi"ia$ en7oyent en7oyent of the io(a)$e io(a)$e property property to %hi"h it is atta"hed. >or a "hatte$ to )e"oe part of of io(a)$e property property and to )e re,arded re,arded as s+"h property& property& it +st )e"oe atta"hed atta"hed to the io(a)$e io(a)$e property as peranent peranent$y $y as a )+i$din, or tree tree is atta"hed to the earth. If& in the nat+re of thin,s& the property is a o(a)$e property is a o(a)$e property and for its )enefi"ia$ +se or en7oyent it is ne"essary to i)ed it or fiit on earth& tho+,h peranent$y& that is& %hen it is in +se& it sho+$d not )e re,arded as io(a)$e property for that reason. !tandin, Ti)er.55 !tandin, ti)er& ,ro%in, "rops and ,rass are re,arded as se(era)$e fro the $and on %hi"h they stand& and& therefore& they are not in"$+ded in the ter io(a)$e property. property. If& ho%e(er& they and on %hi"h they stand is so$d& s+"h standin, ti)er& or ,ro%in, "rops %i$$ pass to the Pipa$& Banyan& Tea:& Ba)oo& et". They do not in"$+de the fr+it )earin, trees $i:e Mah+a& Man,o& a": fr+it& a+n& et". B+t the fr+it )earin, tree ay ay )e"oe standin, standin, ti)er if the the "ontra"t for its se(eran"e has has a$ready )een entered into into in respe"t of the. the. After a,reeent& a,reeent& the $and& $and& %here they stand& stand& is deeed to )e their %areho+se. It is "oon :no%$ed,e that Ceodar& Dai$ and Rai trees are +sed for )+i$din, p+rposes. The intention of the parties %as that to "+t the trees iediate$y. e$d& the a,reeent is
re$ated to standin, ti)er and re;+ires no re,istration. 0ro%in, "rops.55 The ter in"$+des the "reepers $i:e Pan An,oor "reepers& the (ario+s (e,eta)$es $i:e Lo+:i& Daddoo& et". and the !+,ar ane& 9heat& Bar$ey& et". They do not o%n independent e-isten"e )eyond their prod+"e. 0rass.55 0rass "an on$y )e +sed as fodder. Its no other +se is possi)$e. Therefore it is o(a)$e. B+t a "ontra"t to "+t the ,rass %i$$ )e an interest in io(a)$e. It %i$$ )e an interest in "hatte$. Mo(a)$e Property 5 There is no definition of o(a)$e property in the A"t. Mo(a)$e property has )een defined in the 0enera$ $a+ses A"t to ean property of e(ery des"ription e-"ept io(a)$e property. The definition in the Re,istration A"t defines o(a)$e property to in"$+de property to in"$+de property of e(ery des"ription e-"$+din, io(a)$e property )+t in"$+din, standin, ti)er& ,ro%in, "rops and ,rass. Io(a)$e Property Mo(a)$e Property 1. It in"$+des $and& )enefits to arise o+t of $and& and thin,s atta"hed to earth.
2. If the thin, is fi-ed to the $and e(en s$i,ht$y or it is "a+sed to ,o deeper in the earth )y e-terna$ a,en"y& then it is deeed to )e io(a)$e property. #. If the p+rpose of anne-ation of a thin, is to "onfer a peranent )enefit to the $and to %hi"h it is atta"hed& then it is io(a)$e property. ?. E-ap$es Benefits to arise o+t of $and s+"h as hereditary a$$o%an"es& ri,ht of %ay& ferries and fisheries& ri,ht to "o$$e"t rent and profits of io(a)$e property6 an ort,a,e5de)t6 ri,ht to "+t ,rass for one year6 a fa"tory6 et". @. Transfer of io(a)$e property re;+ires re,istration of the do"+ent. 1. It in"$+des sto":s and shares& ,ro%in, "rops& ,rass& and thin,s atta"hed to or forin, part of that $and& and %hi"h are a,reed to )e se(ered )efore sa$e& or +nder the "ontra"t of sa$e. 2. If the thin, is restin, on the $and ere$y on its o%n %ei,ht& the pres+ption is that it is o(a)$e property& +n$ess "ontrary is pro(ed. #. If the p+rpose %as on$y to en7oy the thin, itse$f& then it is o(a)$e property e(en tho+,h it is fi-ed in the $and. ?. E-ap$es Ri,ht of %orship6 roya$ty6 a de"ree fro sa$e of io(a)$e property6 a de"ree for arrears of rent6 0o(ernent proissory notes6 standin, ti)er& ,ro%in, "rops and ,rass. @. o re,istration is re;+ired to transfer a o(a)$e property.
ATTE!TATIO Meanin, of attested The ter attested in this se"tion eans that a person has si,ned the do"+ent )y %ay of testiony of the fa"t that he %as it e-e"+ted. It does not iport anythin, ore& and therefore it +st )e distin,+ished fro "ases %here a person si,ns a do"+ent not ere$y as a %itness to the e-e"+tion )+t a$so %ith a (ie% to ,i(in, "onsent to the transa"tion. A person %ho is a party to the deed "annot +nder any "ir"+stan"es )e a$$o%ed to si,n the instr+ent as an attestin, %itness. Attestation is stated in !e". # of the Transfer of Property A"t. In order to "onstit+te (a$id attestation the essentia$ "onditions are 14 there +st )e t%o attestin, %itnesses6 24 ea"h +st ha(e seen the e-e"+tant si,n or affi- his th+) ar: to the instr+ent 6 #4 ea"h of the t%o attestin, %itnesses +st ha(e si,ned the instr+ent in the presen"e of the e-e"+tant. In,redients of attestation The fo$$o%in, are the essentia$ in,redients of a (a$id attestation 5 i4 There +st )e t%o or ore %itnesses in a$$ "ases %here a do"+ent is re;+ired )y A"t to )e attested6 ii4 ea"h %itness +st 5 a4 see %hat the e-e"+tant si,n or affi- his ar:& or )4 see soe other person si,n the instr+ent in the presen"e and +nder the dire"tion of the e-e"+tant& or "4 re"ei(e fro the e-e"+tant a persona$ a":no%$ed,ent of his si,nat+re or ar: or the si,nat+re of s+"h other person6 iii4 ea"h %itness +st si,n the instr+ent in the presen"e of the e-e"+tant. The a)o(e three in,redients +st )e present for a (a$id attestation. It is& ho%e(er& not ne"essary that a$$ the attestin, %itnesses +st )e present and si,n at the sae tie& nor need any of the to present %hen the e-e"+tant e-e"+tes the instr+ent. In "ases %here the attestin, %itnesses are not present %hen the e-e"+tant e-e"+tes the instr+ent& it is essentia$ that ea"h one of the +st re"ei(e fro the e-e"+tant a persona$ a":no%$ed,ent of its si,nat+re or ar:. Attestin, %itness.5 It is essentia$ that the %itness sho+$d ha(e p+t his si,nat+re ani+s attestandi& that is& for the p+rpose of attestin, that he has seen the e-e"+tant si,n or has re"ei(ed fro hi a persona$ a":no%$ed,ent of his si,nat+re. If a person has p+t his si,nat+re on the do"+ent for soe other p+rpose& e.,.& to "ertify that he is a s"ri)e or an identifier or a re,isterin, offi"er& he is not an attestin, %itness. There +st )e ani+s attestandi for a (a$id attestation. The attest is to )ear %itness to a fa"t. Brief$y p+t& the essentia$ "onditions of a (a$id attestation +nder !e". # are 14 t%o or three %itnesses ha(e seen
the e-e"+tant si,n the instr+ent or ha(e re"ei(ed fro hi a persona$ a":no%$ed,ent of his si,nat+re& 24 %ith a (ie% to attest or to )ear %itness to this fa"t ea"h of the has si,ned the instr+ent in the presen"e of e-e"+tant. It is essentia$ that the %itness sho+$d p+t his si,nat+re aio attestandi& that is& for the p+rpose of attestin, that he has seen the e-e"+tant si,n or has re"ei(ed fro hi a persona$ a":no%$ed,ent of his si,nat+re. If a person p+ts his si,nat+re on the do"+ent for soe other p+rpose& e.,.& to "ertify that he is a seri)$e or an identifier or a re,isterin, offi"er& he is not an attestin, %itness. In En,$ish $a% attestation ip$ies that the attestin, %itness %as present at e-e"+tion and "an testify that the deed %as e-e"+ted (o$+ntari$y )y the proper person. In !ha+ Patter (. A)d+$ Dader& the Pri(y o+n"i$ he$d that an attestin, %itness +st ha(e seen the e-e"+tant si,n. To attest is to )ear %itness to a fa"t. The essentia$ "onditions of a (a$id attestation are the t%o or ore %itnesses ha(e seen the e-e"+tant si,n the instr+ent& or ha(e re"ei(ed fro hi a persona$ a":no%$ed,ent of his si,nat+re& and ea"h of the has si,ned the instr+ent in the presen"e of the e-e"+tant to )ear %itness to this fa"t6 it is essentia$ that the attestin, %itness has p+t his si,nat+re anies attestandie ie. for the p+rpose of attestin, the si,nat+re. The essentia$ in,redients of the proof of attestation are that it is ne"essary that the person re$yin, +pon a do"+ent +st esta)$ish that the e-e"+tant has si,ned or p+t th+) ipression )efore the attestin, %itness and the attestin, %itness +st si,n in presen"e of e-e"+tant. The )+rden is on the propo+nder to pro(e d+e and (a$id e-e"+tion of the 9i$$. The propo+nder is re;+ired to sho% )y satisfa"tory e(iden"e that the 9i$$ %as si,ned )y the attestator and that at the re$e(ant point of tie the attestator %as in a so+nd and disposin, state of ind& and that he +nderstood the nat+re and the fa"t of dispossess in %hen he p+t his si,nat+re to the do"+ent o+t of his o%n free %i$$. If s+"h e(iden"e is )ro+,ht on re"ord %hi"h is "$in"hin, and pro(es the e-e"+tion and attestation to )e ,en+ine and (a$id& then "ertain$y& the )+rden %o+$d shift on the o)7e"tor. 9ho ay attest A party to a deed "annot )e an attestin, %itness& for the o)7e"t of attestation is prote"tion a,ainst fra+d and +nd+e inf$+en"e. B+t a person interested in the transa"tion s+"h as a person interested in the oney ad(an"ed +nder a ort,a,e& ay )e an attestin, %itness if he is not a party to the deed6 and the person %ho ad(an"ed the oney ay attest a ort,a,e in fa(o+r of his )enaidar. 9here the deed %as %ritten in En,$ish6 the e-e"+tant %as an o$d i$$iterate $ady not :no%in, En,$ish6 no e(iden"e %as $ed to sho% that the "ontents of the deed %ere e-p$ained to her6 and the attestin, %itnesses a$so did not :no% En,$ish6 here it %as he$d that the e-e"+tion %as in(a$id. The $a% of India "ontains %e$$5:no%n prin"ip$es for the prote"tion of persons& %ho transfer their property to their o%n disad(anta,e& %hen they ha(e not the +s+a$ eans
of f+$$y +nderstandin, the nat+re of the effe"t of %hat they are doin,& on a""o+nt of "ertain disa)i$ities. >orin, Attestation Attestation need not )e in any parti"+$ar for& a ere si,nat+re is s+ffi"ient6 it need not )e ade at any parti"+$ar p$a"e in the deed& )+t "annot ta:e p$a"e )efore the e-e"+tion of the deed. B+t the se"tion re;+ires that the attestin, %itness sho+$d ha(e si,ned in the presen"e of e-e"+tant6 other%ise the deed is not (a$id$y attested e(en tho+,h the attestor did a"t+a$$y %itness e-e"+tion. It is ne"essary that the attestin, %itness sho+$d ha(e si,ned for the p+rpose of a+thenti"atin, the si,nat+re of the e-e"+tant& and not as a s"ri)e& or as a person ere$y indi"atin, his "onsent to the transa"tion. A s"ri)e ho%e(er& ay perfor a d+a$ ro$e. e ay )e an attestin, %itness as %e$$ as the %riter. The fa"t that he si,ned as an attestin, %itness& that he did so %ith the ne"essary ani+s to attest& +st )e d+$y pro(ed. A person "an )e "a$$ed an attestin, %itness %hen he has %itnessed the e-e"+tion of the do"+ent and has p+t his si,nat+re )y des"ri)in, hise$f as an attestin, %itness. 9hen a person had p+t his si,nat+res on the do"+ent )oth& as a s"ri)e and as an attestin, %itness& the inferen"e is that he f+n"tioned )oth a s"ri)e and as an attestin, %itness. Re,isterin, Offi"er as Attestin, 9itness There %as a "onf$i"t of de"isions as to %hether the si,nat+re of the re,isterin, offi"er and of the attestin, %itnesses on the re,istrars endorseent ade to satisfy the re;+ireent of the Re,istration A"t "onstit+te a (a$id attestation if ade in the presen"e of the e-e"+tant. !oe de"isions had he$d s+"h attestation to )e (a$id6 )+t there %ere "ontrary de"ision. In A)d+$ a)har (. Ven:ata !astri& the !+pree o+rt has he$d that s+"h si,nat+res "an on$y ao+nt to a (a$id attestation if the attestin, %itnesses had p+t their si,nat+res %ith s+"h ani+s6 the "o+rt f+rther he$d that ordinari$y the re,isterin, offi"er p+t his si,nat+re in the perforan"e of his stat+tory d+ty and not %ith an intention to attest. If e-e"+tion is spe"ifi"a$$y denied& at $east one attestin, %itness +st )e "a$$ed to pro(e the deed& if there )e one a$i(e& and s+)7e"t to pro"ess of the "o+rt. If the attestin, %itnesses are dead& their si,nat+res "an )e pro(ed )y e(iden"e of hand%ritin,. Attestation as Proof of onsent Mere attestation does not effe"t an estoppe$& for attestation does not fi- attestin, %itness %ith :no%$ed,e of the "ontents of the do"+ent. Attestation does not of itse$f ip$y "onsent6 tho+,h there ay )e "ir"+stan"es %hi"h sho% that the attestin, %itness had :no%$ed,e of the "ontents of the do"+ent he attested and "onsented to. An attestin, %itness is not estopped )y his ere si,nat+re +n$ess it "an )e esta)$ished )y independent e(iden"e that to the si,nat+re %as atta"hed the e-press "ondition that it %as intended to "on(ey soethin, ore than ere %itnessin, to the e-e"+tion& and %as eant as in(o$(in, "onsent to the transa"tion.
OTIE The $ast para,raph of the se"tion # states +nder %hat "ir"+stan"es a person is said to ha(e noti"e of a fa"t. e ay hise$f ha(e a"t+a$ noti"e or he ay ha(e "onstr+"ti(e noti"e ay )e ip+ted to hi %hen inforation of the fa"t has )een o)tained )y his a,ent in the "o+rse of )+siness transa"ted )y the a,ent for hi. a4 E-press or a"t+a$ noti"e. 55 An e-press or a"t+a$ noti"e of fa"t is a noti"e %here)y a person a";+ires a"t+a$ :no%$ed,e of the fa"t. It +st )e definite inforation ,i(en in the "o+rse of ne,otiations )y a person interested in the property. )4 onstr+"ti(e oti"e. 55 It is a noti"e %hi"h treats a person %ho o+,ht to ha(e :no%n a fa"t& as if he a"t+a$$y does :no% it. In other %ords& a person has "onstr+"ti(e noti"e of a$$ fa"ts of %hi"h he %o+$d ha(e a";+ired a"t+a$ noti"e had he ade those en;+iries %hi"h he o+,ht reasona)$y to ha(e ade. The "ases of "onstr+"ti(e noti"e into t%o "$asses i4 ases in %hi"h the party "har,ed has had a"t+a$ noti"e that the property in disp+te %as in soe %ay affe"ted& and the o+rt has there+pon )o+nd hi %ith "onstr+"ti(e noti"e of fa"ts and do"+ents& to a :no%$ed,e of %hi"h he %o+$d ha(e )een $ed )y an in;+iry after the "ir"+stan"es affe"tin, the property had "oe to his :no%$ed,e. ii4 ases in %hi"h the o+rt has )een satisfied fro the e(iden"e )efore it that the party "har,ed has desi,ned$y a)stained fro in;+iry for the (ery p+rpose of a(oidin, noti"e < A p+rpose %hi"h& if pro(ed& %o+$d "$ear$y sho% that he had a s+spi"ion of the tr+th& and a fra+d+$ent deterination not to $earn it. oti"e < Effe"t of not a:in, en;+iry.55 Property %as in possession of tenant. The (endee has not ade any en;+iry %ith the tenant in respe"t of prior a,reeent for sa$e e-e"+ted in fa(o+r of the tenant. The (endee p+r"hased the property %itho+t ta:in, any en;+iry tho+,h the property %as in possession of the tenant. e$d that the (endee %o+$d )e deeed to ha(e noti"e of the prior a,reeent in (ie% of !e"tion # of T.P.A"t. onstr+"ti(e oti"e.55 The e-p$anation in !e"tion # of the Transfer of Property A"t& %hi"h pro(ides for fi-in, a party %ith "onstr+"ti(e noti"e in respe"t of re,istered transa"tions& "ontains a pro(iso that in order to ao+nt to "onstr+"ti(e noti"e& 14 the instr+ent has )een re,istered and its re,istration "op$eted in the anner re;+ired )y the Re,istration A"t and the R+$es ade there+nder& 24 the instr+ent has )een d+$y entered or fi$ed in )oo:s :ept +nder !e"tion @1 of the A"t& and #4 The parti"+$ars re,ardin, the transa"tion to %hi"h the instr+ent re$ates ha(e )een "orre"t$y entered in the inde-es :ept +nder !e"tion @@ of the A"t. onstr+"ti(e noti"e has ro+,h$y )een defined as :no%$ed,e %hi"h the "o+rt ip+tes to a person +pon a pres+ption so stron, that it "annot )e a$$o%ed to )e re)+tted that the :no%$ed,e +st ha(e )een o)tained. This $e,a$ pres+ption arises +nder this se"tion 14 In re$ation to a fa"t 5 a4 %hen )+t for %i$f+$ a)stention fro an in;+iry %hi"h a person o+,ht to ha(e ade he %o+$d ha(e :no%n the fa"t6 or
)4 9hen )+t for ,ross ne,$i,en"e he %o+$d ha(e :no%n it6 24 In re$ation to a do"+ent "op+$sori$y re,istra)$e6 #4 In re$ation to a"t+a$ possession6 ?4 In re$ation to a noti"e to an a,ent. The possession of a sa$$ part of a ho+se %i$$ not p+t a p+r"haser on "onstr+"ti(e noti"e of that persons ri,hts as to %ho$e ho+se. In Mohd. M+staffa (. a7i Mohd. issa& it %as he$d that the prin"ip$e of "onstr+"ti(e noti"e "annot )e e-tended to a "ase %here the person %ho "$ais on the )asis of prior a,reeent is in possession of on$y a sa$$ fra"tion of the property. In s+"h a "ase& it "annot )e said that the person %ho p+r"hases the property +st a:e an en;iry a)o+t the pre(io+s "ontra"t fro the p$aintiff or any other tenant in o""+pation of a portion of the ho+se. 9i$f+$ a)stention fro an en;+iry or sear"h. The %ords '%i$f+$ a)stention* are said to )e s+"h a)stention fro in;+iry or sear"h as %o+$d sho% %ant of )ona fide in respe"t of a parti"+$ar transa"tion. It sho+$d )e noted that the a)stention fro in;+iry +st )e %ith soe p+rpose or desi,n and d+e to a desire to a(oid an in;+iry %o+$d $ead to +$tiate :no%$ed,e. This soeties happens %hen a person thin:s that he has str+": a ,ood )ar,ain and %ants to p+r"hase the property ;+i":$y $est other persons i,ht "oe for%ard and "opete %ith hi. 0ross e,$i,en"e The do"trine of "onstr+"ti(e noti"e a$so app$ies %hen a person& )+t for his ,ross ne,$i,en"e& %o+$d ha(e :no%n the fa"t. Mere ne,$i,en"e is not pena$ised. It +st )e ,ross ne,$i,en"e. In a%a$ Dishore (. The M+ni"ipa$ Board& A,ra& The "o+rt fe$t that there %as a prin"ip$e on %hi"h ;+estion of "onstr+"ti(e noti"e "o$d rest& that prin"ip$e )ein, that a$$ intendin, p+r"hasers of the property in +ni"ipa$ areas %here the property is s+)7e"t to a +ni"ipa$ ta- %hi"h has )een ade a "har,e on the property )y stat+te ha(e a "onstr+"ti(e :no%$ed,e of the ta- and of the possi)i$ity of soe arrears )ein, d+e %ith the res+$t that it )e"oes their d+ty )efore a";+irin, the property to a:e en;+iries as to the ao+nt of ta- %hi"h is d+e or %hi"h ay )e d+e and if they fai$ to a:e this en;+iry s+"h fai$+re ao+nts to a %i$$f+$ a)stention or ,ross ne,$i,en"e %ithin the eanin, of !e"tion # of the Transfer of Property A"t and noti"e +st )e ip+ted to the. It is not ne"essary to sho% that the person has )een ,+i$ty to fra+d or ne,$i,en"e ao+ntin, to fra+d. >ra+d is ;+ite different fro ne,$i,en"e. The forer "onnotes a"ti(e dishonesty& the $atter sip$y ip$ies indo$en"e. 0ross ne,$i,en"e is 'a de,ree of ne,$i,en"e so ,ross that a "o+rt of 7+sti"e ay treat it as e(iden"e of fra+d& ip+te a fra+d+$ent oti(e to it and (isit it %ith the "onse;+en"es of fra+d& a$tho+,h& ora$$y spea:in,& the party "har,ed ay )e perfe"t$y inno"ent. Re,istration as oti"e.
The do"trine of "onstr+"ti(e noti"e app$ies a$so in "ase of do"+ents %hi"h are re;+ired )y $a% to )e re,istered. 9here any transa"tion re$atin, to io(a)$e property is re;+ired )y $a% to )e& and has )een& effe"ted )y a re,istered instr+ent& any person a";+irin, s+"h property& sha$$ )e deeed to ha(e noti"e of s+"h instr+ent fro the date of re,istration. It +st )e noted that re,istration ao+nts to noti"e on$y in those "ases %here the instr+ent is re;+ired $a% to )e re,istered. That is to say %here the re,istration of a transa"tion is of a transa"tion is optiona$& the fa"t of re,istration does not ao+nt to noti"e. >ina$$y& it +st )e noted that the instr+ent +st ha(e )een re,istered in the anner pres"ri)ed )y the Indian Re,istration A"t& 1FG8. If the instr+ent has )een re,istered in the sae re,istration s+)5distri"t as that in %hi"h the property is sit+ate& it operates as noti"e fro the date of re,istration. If& ho%e(er& the property is sit+ate in se(era$ s+)5 distri"ts& or if the re,istration has )een effe"ted in another distri"t& the re,istered deed %i$$ not operate as noti"e +nti$ eorand+ of s+"h re,istration has )een re"ei(ed and fi$ed )y the !+)5Re,istrar of s+)5distri"t in %hi"h the property is sit+ate. A"t+a$ Possession as oti"e. E-p$anation II says that any person a";+irin, any io(a)$e property sha$$ )e deeed to ha(e noti"e of the tit$e& if any& of any person %ho is in a"t+a$ possession thereof. In order to operate as "onstr+"ti(e noti"e possession +st )e a"t+a$ possession. Th+s& if a tenant is not in the a"t+a$ o""+pation of the $and& his o""+pation is not "onstr+"ti(e noti"e. 9here a "ertain party is not in possession& the pres+ption +nder the e-p$anation to !e". #& does not arise& that the person p+r"hasin, the property tit$e sha$$ )e deeed to ha(e noti"e of the tit$e& if any& of any person %ho is not in a"t+a$ possession. oti"e to A,ent. E-p$anation III& of !e"tion # %hi"h dea$t %ith noti"e to an a,ent ran as fo$$o%s 'A person is said to ha(e noti"e of fa"t. 9hen the inforation of fa"t is ,i(en to& or o)tained )y& his a,ent +nder the "ir"+stan"es entioned in !e"tion 22F of the Indian ontra"t A"t& 18H2.* The ,enera$ prin"ip$e of the a,en"y $a% is that an a,ent stands in the p$a"e of the prin"ipa$ for the p+rpose of the )+siness in hand& his a"ts and :no%$ed,e )ein, "onsidered as the a"ts and :no%$ed,e of the prin"ipa$. !"ope of the R+$e.55 The ,enera$ r+$e that the :no%$ed,e of the a,ent is the :no%$ed,e of the prin"ipa$ has "ertain $iitations. The noti"e sho+$d ha(e )een re"ei(ed )y the a,ent i4 as an a,ent& ii4 d+rin, the a,en"y& iii4 in the "o+rse of the a,en"y )+siness& i(4 in a atter ateria$ to the a,en"y )+siness. E-"eption >ra+d+$ent "on"ea$ent of fa"t )y a,ent.55 The :no%$ed,e of an a,ent %i$$ not )e ip+ted to his prin"ipa$ if the a,ent fra+d+$ent$y "on"ea$s the fa"ts. It is not s+ffi"ient to sho% that the a,ent "on"ea$ed the fa"t. It +st )e sho%n that the party "har,in, the prin"ipa$ %ith noti"e %as party to the fra+d or other%ise :ne% of the fra+d.
In Ar+i$$i !+rayya (. Pinisetti Ven:ataraanaa& it %as he$d that !e". 1GG of the Transfer of Property A"t does not app$y to a+"tion sa$es )e"a+se the transfer %ithin the eanin, of the Transfer of Property A"t does not in"$+de an a+"tion sa$e. It %as added that the position of a p+r"haser at an e-e"+tion sa$e is the sae as that of the 7+d,ent 5de)tor and his position is soe%hat different fro that of a p+r"haser at the pri(ate sa$e. TRA!>ER O> PROPERTY Transfer of Property has )een defined in !. @ of the Transfer of Property A"t eanin, an a"t )y %hi"h a $i(in, person "on(eys property& in present or in f+t+re to one or ore other $i(in, persons and 'to transfer property* is to perfor s+"h a"t. Li(in, person has )een defined to in"$+de a "opany or asso"iation or )ody of indi(id+a$s %hether in"orporated or not& )+t nothin, herein "ontained sha$$ effe"t any $a% for the tie )ein, in for"e re$atin, to the transfer of property to or )y "opanies& asso"iations or )odies of indi(id+a$s. Property The Le,is$at+re has not attepted to define the %ord property& )+t it is +sed n this A"t in its %idest and ost ,eneri" $e,a$ sense. !e"tion 3 says that property of any :ind ay )e transferred& et". th+s an a"tiona)$e "$ai is property6 and so is a ri,ht to a re"on(eyan"e of $and. It is +sed in this d+a$ sense of the thin, and the ri,ht of the thin, in !. @? %hi"h "ontrasts& tan,i)$e io(a)$e property %ith a re(ersion or other intan,i)$e thin,. Property in"$+des ri,hts s+"h as trade ar:s& "opyri,hts& patents and persona$ ri,hts "apa)$e of transfer or transission s+"h as de)t. A share in the "opany is a o(a)$e property free$y a$iena)$e in a)sen"e of any e-press restri"tions +nder the Arti"$es of Asso"iation of the "opany. The shares are& therefore& transfera)$e $i:e any other o(a)$e property and the (endee of the shares "annot )e denied the re,istration of the shares p+r"hased )y hi on a ,ro+nd other than stated in the Arti"$e. The %ords in present or in f+t+re in !. @ ;+a$ify the %ord "on(eys and not the %ord property. A transfer of property not in e-isten"e operates as a "ontra"t to )e perfored in the f+t+re %hi"h is spe"ifi"a$$y enfor"ea)$e as soon as the property "oes into e-isten"e. 9here the operati(e portion of the sa$e5deed re"orded that a$$ ri,hts and pri(i$e,es in the "on"ernin, the property either in present or a""r+in, in f+t+re as (estin, in the (endor %ere the s+)7e"t atter of the sa$e and that the (endor retained no ri,ht of any :ind& it %as he$d that e(en the ri,ht of the (endor of re"on(eyan"e of the property %as transferred )y the sa$e5deed. Interests in Property As o%nership "onsists of a )+nd$e of ri,hts& the (ario+s ri,hts and interests ay )e (ested in different persons. A)so$+te o%nership is an a,,re,ate of "oponent ri,hts s+"h as the ri,ht of possession& the ri,ht of en7oyin, the +s+fr+"t of the $and& and as on.
These s+)ordinate ri,hts& the a,,re,ate of %hi"h a:e +p a)so$+te o%nership& are "a$$ed in this A"t interests in Property. A transfer of property is either a transfer of a)so$+te o%nership or a transfer of one or ore of these s+)ordinate ri,hts. Transfer The %ord transfer is defined %ith referen"e to the %ord "on(ey. This %ord in En,$ish La% is its narro%er and ore +s+a$ sense refer to the transfer of an estate in $and6 )+t it is soeties +sed in a +"h %ider sense to in"$+de any for of an ass+ran"e inter (i(o+s. Transfer +st ha(e an interest in the property. e "annot se(er hise$f fro it and yet "on(ey it. A $ease "oes %ithin the eanin, of the %ord transfer. The definition of transfer of property in this se"tion does not e-"$+de property sit+ated o+tside India or the territories to %hi"h the A"t app$ies. It atters not that the property is sit+ated o+tside India& or in the territories %here the A"t does not app$y6 for it the transfer is effe"ted %here the A"t is in for"e& the ri,hts of the parties are to )e deterined )y the "o+rt +nder the A"t $ea(in, it to the party to pro(e that )y the $e- rei sitae& ie )y the $a% of the $and %here the property is sit+ated& the transa"tion in in(a$id or defe"ti(e. A transfer is not ne"essari$y "ontra"t+a$& and in"$+ded a deed of appointent. The se"tion does not re;+ire that the $i(in, person %ho "on(eys sho+$d ne"essari$y )e the sae person as he %ho o%ns& or o%ned& the property "on(eyed )y soe $i(in, person6 +nder the se"tion& there ay )e a transfer )y a person e-er"isin, po%ers o(er the property of another. Partition of 7oint ind+ fai$y or Ceed of partition of 7oint fai$y property A partition is not a"t+a$$y a transfer of property. The Pri(y o+n"i$ in 0ir7a Bai (. !adashi( Ch+ndira7& he$d that& partition does not ,i(e a "opar"ener a tit$e or "reate a tit$e in hi6 it on$y ena)$es hi to o)tain %hat is his o%n in a definite and spe"ifi" for for p+rpose of disposition independent of the %ishes of his forer "o5sharers.* A partition effe"ts a "han,e in the ode of en7oyent of property )+t is not an a"t of "on(eyin, property fro one $i(in, person to another. Partition is not a transfer. It is on$y reno+n"eent of e-istin, ri,hts in "oon properties in "onsideration is on$y reno+n"eent of e-istin, ri,hts in "oon properties in "onsideration of ,ettin, e-"$+si(e ri,ht and possession o(er the spe"ifi" p$ots. Partition is on$y a pro"ess of +t+a$ ren+n"iation )y %hi"h "oon +nspe"ified ri,hts in $ar,er e-tents are "on(erted into e-"$+si(e ri,ht o(er spe"ifi" p$ots. In V. . !arin (. A7it Dr. Pop$ai "o+rt o)ser(ed that the tr+e effe"t of partition is that ea"h "opar"ener ,ets a spe"ifi" property in $ie+ of his +ndi(ided ri,ht in respe"t of the tota$ity of the property of the fai$y. The !+pree o+rt in that "ase %as "onsiderin, the pro(isions of Rent ontro$ A"t and did not e-press any opinion on the "orre"tness of "ertain de"isions ho$din, that a partition is a transfer %ithin the eanin, of !. @#. The "orre"t (ie%& it is s+)itted& is that a partition is not a transfer and therefore& stri"t$y not ,o(erned )y the A"t& )+t that any of the pro(isions of the A"t ay ,o(ern partition as e)odyin, r+$es of 7+sti"e& e;+ity and ,ood "ons"ien"e.
Partition of property does not ao+nt to transfer as "ontep$ated )y !.@. Co"trine of part perforan"e therefore does app$y to partition. Partition is rea$$y a pro"ess& in and )y %hi"h a 7oint en7oyent is transfored into a en7oyent se(era$$y. Ea"h one of the "o5sharers had an ante"edent tit$e and& therefore& no "on(eyan"e is in(o$(ed in the pro"ess& as the "onferent of a ne% tit$e is not ne"essary. The do"trine of part perforan"e does not app$y to an +nre,istered deed of partition. A partition is possi)$e )et%een t%o "o5o%ners %ho ay not ha(e a)so$+te or e;+a$ ri,hts& )+t are $iited o%ners. A do"+ent e-e"+ted in sett$eent of disp+tes )et%een t%o persons %ho are entit$ed to the sae properties and %ho a,ree to di(ide the properties aon,st these$(es is a partition& and not a sett$eent. 9here a 7oint fai$y property is s+)7e"t to ort,a,e& there is no transfer of o%nership and the "opar"eners& )ein, its $a%f+$ o%ners& are "opetent of a$$ot the ort,a,ed property in an ora$ partition to any of the "opar"eners. The "opar"eners to %ho the ort,a,ed property is a$$otted& )e"oes its a)so$+te o%ner and is entit$ed to redee the ort,a,e. onse;+ent$y& %here the ri,ht to redee is transferred )y that "opar"aener& the transferee is a$so entit$ed to redee the ort,a,e. Property& s+)7e"t to ort,a,e "an )e a$$otted in an ora$ partition to a "opar"ener& parti"+$ar$y %hen s+"h ora$ partition is not ,oin, to interfere %ith the s"hee of the ort,a,e. Li(in, Person <9i$$ These %ords e-"$+de transfers )y %i$$& for a %i$$ operates fro the death of the testator. Transfer of share or interest in a "o5operati(e so"iety to the noinee of its e)er operatin, on his death %o+$d a$so )e e-"$+ded $i:e transfer )y %i$$. 9hen the )enefi"iary is not a $i(in, person& the e-pression +sed is the "reation of an interest in an +n)orn person. The %ords $i(in, person in"$+de a 7+risti" person s+"h as a "oportation. A "o+rt is not a 7+risti" person. In present or in f+t+re A transfer of property ay ta:e p$a"e not on$y in present& )+t a$so in the f+t+re& )+t the property +st )e e-isten"e. The %ords in present or in f+t+re ;+a$ify the %ord "on(eys& and not the %ord property. A transfer of property that is not in e-isten"e operates as a "ontra"t to )e perfored in the f+t+re %hi"h ay )e spe"ifi"a$$y enfor"ed as soon as the property "oes into e-isten"e.
!PE! !E!!IOI! !e". 3 9hat ay )e transferred.55 Property of any :ind ay )e transferred& e-"ept as other%ise pro(ided )y this A"t& or )y any other $a% for the tie )ein, in for"e a4 The "han"e of an heir5apparent s+""eedin, to an estate& the "han"e of a re$ation
o)tainin, a $e,a"y on the death of a :insan& or any other ere possi)i$ity of a $i:e nat+re& "annot )e transferred. $a+se a4 !pes !+""essionis The thin,s referred to in this "$a+ses as non5transfera)$e are 14 The "han"e of an heir s+""eedin, to an estate& 24 The "han"e of a re$ation o)tainin, a $e,a"y a ,ift )y %i$$4 on the death of a :insan& and #4 any other ere possi)i$ity of a $i:e nat+re. The possi)i$ities referred to in this "$a+se are )are or na:ed possi)i$ities and not possi)i$ities "o+p$ed %ith an interest s+"h as "ontin,ent reainders and f+t+re interest. I$$+stration A has a %ife B and a da+,hter . in "onsideration of Rs. 1&GGG paid to her )y A& e-e"+tes a re$ease of her ri,ht to share in the inheritan"e to As property. A dies and "$ais her one5third share in the inheritan"e. B resists the "$ai and sets +p the re$ease si,ned )y . The re$ease is no defen"e& for it is a transfer of a spes s+""essions& and is entit$ed to her one5third share )+t is )o+nd to )rin, into a""o+nt the Rs. 1&GGG re"ei(ed fro her father. han"e of an heir apparent. A ere possi)i$ity of an heir s+""eedin, to an estate is e-"$+ded fro the "ate,ory of transfera)$e property. The prohi)ition ena"ted in this "$a+se is )ased on p+)$i" po$i"y& nae$y& that if these transfers %ere a$$o%ed spe"+$ators %o+$d p+r"hase the "han"e of s+""ession fro possi)$e heirs and there %o+$d )e in"rease in spe"+$ati(e $iti,ations. !e". 3a4& ho%e(er& prohi)its the transfer of a )are "han"e of a person to ,et a property. After the death of the h+s)and& for e-ap$e& if t%o %ido%s inherit their h+s)ands properties to,ether& the transfer of )are "han"e of the s+r(i(in, %ido% ta:in, the entire estate as the ne-t heir of her h+s)and on the death of the "o5%ido% of her present interest in the properties inherited )y her to,ether %ith the in"identa$ ri,ht of s+r(i(orship. !+"h %ido%s "o+$d (a$id$y partition the properties and a$$ot separate partitions to ea"h and& in"identa$ to s+"h an a$$otent& "o+$d a,ree to re$in;+ish her ri,ht of s+r(i(orship in the protion a$$otted to the other. !pes !+""essionis and "ontin,ent interest. 9hi$e !pes !+""essionis "annot )e transferred& "ontin,ent interest is transfera)$e. 'A "ontin,ent interest is soethin, ;+ite different fro ere possi)i$ity of a $i:e nat+re of an heir apparent s+""eedin, to the estate& or the "han"e of a re$ation o)tainin, a $e,a"y& and a$so soethin, ;+ite different fro ere ri,ht to s+e. It is %e$$ as"ertained for of property. It "ertain$y has )een transferred in this "o+ntry for ,enerations in respe"t of %hi"h it is ;+ite possi)$e to raise oney and to dispose of it in any %ay the )enefi"iary "hoose.* ontin,ent o%nership is )ased not +pon the ere possi)i$ity of f+t+re a";+isition )+t +pon the present e-isten"e of an in"op$ete tit$e. The distin"tion )et%een "ontin,ent interest and spes s+""essionis ay )e +nderstood )y the fo$$o%in, i$$+strations
i4 A& a ind+ o%in, separate property& died $ea(in, a %ido% B and a )rother . has sip$y a "han"e of )e"oin, the o%ner of As estate. ii4 A& a ind+& o%in, separate property a:es sett$eent of his property to his %ife B for $ife and then to his son& if he sho+$d ha(e one& and in defa+$t of a son of . s interest is "ontin,ent and is transfera)$e. is "ontin,ent interest is soethin, ore than a sip$e "han"e of )e"oin, the o%ner of it. e has an interest "ontin,ent on A ha(in, no son. han"e of Le,a"y. The "han"e of a re$ation re"ei(in, a $e,a"y is a possi)i$ity e(en ore reote than the "han"e of s+""ession of an heir& and therefore& is not transfera)$e. Other possi)i$ities of $i:e nat+re The e-pression 'any other possi)i$ity of a $i:e nat+re* indi"ates that the possi)i$ity referred to herein +st )e$on, to the sae "ate,ory as the "han"e of an heir apparent or the "han"e of a re$ation o)tainin, a $e,a"y. Transfer )y ind+ Re(ersioner By the ind+ $a% the ri,ht of a re(ersionary heir e-pe"tant e-pe"tant on the death of a ind+ %ido% is a spes s+""essionis and its transfer is a n+$$ity and has no effe"t in $a%. The Pri(y o+n"i$ said in a de"ision A ind+ re(ersioner has no ri,ht or interest in prosenti in the property %hi"h the fea$e o%ner ho$ds for her $ife. nti$ it (ests in hi on her death& sho+$d he s+r(i(e her& he has nothin, to assi,n or re$in;+ish or e(en to transit to his heirs. is ri,ht )e"oes "on"rete on$y on her deise6 +nti$ then it is ere spes s+""essionis. The re(ersioner "an re$in;+ish his ri,ht to say that the properties in disp+te for part of the estate to %hi"h he is the re(ersioner. It %as he$d )y the !+pree o+rt in +a Mas7id (. Dadianiandra Ce(iah& that the prin"ip$e of feedin, th estoppe$ re"o,nised in !. ?# of the A"t %o+$d app$y to a "ase %here a re(ersioner p+rports to transfer properties to %hi"h he has on$y a "han"e of s+""eedin, if he has represented to the transferee that he %as a)so$+te$y entit$ed to the properties and if he s+)se;+ent$y a";+ires tit$e to the properties. The o+rt he$d tho+,h !. ?# %o+$d not app$y %hen the transferee :ne% the fa"ts& there %as no reason %hy a transferee %ho %as not a%are of the tr+e fa"ts and %ho a"ted on the fra+d+$ent representation sho+$d not ha(e the )enefit of the e;+ita)$e do"trine e)odied in !. ?#. An A,reeent )y re(ersionary heir to transfer or to re$in;+ish his ri,ht of s+""ession is a$so (oid. In Annada (. 0o+r Mohan& the Pri(y o+n"i$ said that it %as ipossi)$e for the to adit the "oon sense of aintainin, an ena"tent %hi"h %o+$d pre(ent the p+rpose of the ontra"t& %hi$e perittin, the "ontra"t to stand as a "ontra"t. Estoppe$ of re(ersioner55 A$tho+,h )oth the transfer and the a,reeent to transfer a re(ersionary interest are (oid& yet a re(ersioner ay )e estopped fro "$aiin, the re(ersion )y his "ond+"t if he has "onsented to an a$ienation )y a %ido% or other $iited heir. onsiderin, the s"ope of !e"tion ?# on its ters& it "$ear$y app$ies %hene(er a person
transfers property to %hi"h he has no tit$e& on a representation that he has a present and transfera)$e interest therein& and a"tin, on that representation& the transferee ta:es a transfer for "onsideration. 9hen these "onditions are satisfied& the se"tion ena"ts that& if the transferor& s+)se;+ent$y a";+ires the property& the transferee )e"oes entit$ed to it if the transfer has not in eantie )een thro%n +p or "an"e$$ed and is persistin,. There is an e-"eption in fa(o+r of transferees of "onsideration in ,ood faith and %itho+t noti"e of the ri,ht +nder the prior transfer. !e"tion ?# e)odies a r+$e of estoppe$ and ena"ts that a person %ho a:es a representation& sha$$ not )e heard to a$$e,e the "ontrary as a,ainst a person %ho a"ts on the representation. It is iateria$ %hether the transferor %ho a"ts )ona fide or fra+d+$ent in a:in, the representation. It is on$y ateria$ to find o+t %hether& in fa"t& the transferee has )een is$ed. It atters not %hether the transferor a"ted fra+d+$ent$y or inno"ent$y in a:in, the representation and the transferee has a"ted on it. 9here the transferee :ne% as a fa"t that the transferor did not possess the tit$e %hi"h he represents he has& then he "annot )e said to ha(e a"ted on it %hen ta:in, a transfer& and !e"tion ?# %o+$d not then app$y and the transfer %i$$ fai$ +nder !e"tion 3a4. B+t %here transferee does a"t on the representation& he %i$$ ha(e the )enefit of the e;+ita)$e do"trine e)odied in !e"tion ?#& ho%e(er fra+d+$ent the a"t of the transferor i,ht ha(e )een. A p$ea of estoppe$ "annot )e raised a,ainst a inor %ho had transferred property on representation that he %as of a,e& and !e"tion ?# does not app$y to s+"h transfers. B+t se"tion ?# dea$s %ith transfers %hi"h fa$$ for %ant of tit$e in the transferor and not %ant of "apa"ity i hi at the tie of transfer. >+rther& the do"trine fo estoppe$ does not app$y to persons %ho ha(e no "ontra"t+a$ "apa"ity %here the "$ai is )ased on "ontra"t. >eedin, the estoppe$ The prin"ip$e of the se"tion is )ased part$y on the En,$ish do"trine of estoppe$ )y deed and part$y on the e;+ita)$e do"trine that a an %ho has proised ore than& he "an perfor +st a:e ,ood his proise %hen he a";+ires the po%er of perforan"e. Essentia$s.55 To attra"t the app$i"ation of the se"tion& three "onditions are ne"essary i4 a fra+d+$ent or erroneo+s representation that the transferor had a+thority to transfer the property& ii4 the transfer is for "onsideration& iii4 the transferor s+)se;+ent$y a";+ires the interest %hi"h he had professed to transfer. If a ind+ dies $ea(in, )ehind t%o %ido%s& they s+""eed as 7oint tenants %ith a ri,ht of s+r(i(orship. They %ere entit$ed to o)tain partition of the separate portions of property so that ea"h ay en7oy her e;+a$ share of the in"oe a""r+in, therefro. Ea"h "an dea$ as she p$eases %ith her o%n $ife interest )+t she "annot a$ienate any part of the "orp+s of the estate )y ,ift or %i$$ so as to pre7+di"e the ri,ht of s+r(i(orship or a f+t+re re(ersioner. If they a"t to,ether& they "an )+rden the re(ersion %ith any de)ts o%in, to $e,a$ ne"essity )+t one of the a"tin, %itho+t the a+thority of the other "annot pre7+di"e the ri,ht of s+r(i(orship )y a$ienatin, any part of the estate. The ere fa"t of
partition )et%een the t%o %hi$e it ,i(es ea"h a ri,ht to fr+its of separate estate to her& it does not ip$y a ri,ht to pre7+di"e the "$ai of s+r(i(orship to en7oy f+$$ fr+its of the property d+rin, her $ifetie. Representation. In order that !e"tion ?# "an app$y& it is ne"essary that there sho+$d )e isrepresentation& fra+d+$ent or erroneo+s& a)o+t the ri,ht to transfer the property. The %ord 'represents* in the se"tion "$ear$y sho%s that the person in %hose fa(o+r the en;+iry is a$$o%ed to operate +st ha(e a"ted on the representation. In other %ords& the transferee +st ha(e )een is$ed into the ipression that the transferor had po%er to transfer. Transfer for "onsideration. The do"trine of feedin, the estoppe$ )y ,rant is app$i"a)$e on$y to the transfers of properties for (a$+e. This se"tion is not app$i"a)$e %here the transfer is ,rat+ito+s& i.e.& %itho+t "onsideration. Th+s& %here the property has )een transferred )y %ay of ,ift& the pro(isions of this se"tion "annot app$y )e"a+se a ,ift& the pro(isions of this se"tion "annot app$y )e"a+se a ,ift of property in %hi"h the donor has no present fi-ed ri,ht at the date of transfer& is (oid. Transfer for)idden )y $a%. The se"tion %i$$ not app$y if the transfer is in(a$id as )ein, for)idden )y $a% or "ontrary to p+)$i" po$i"y. In s+"h a "ase the prin"ip$e of this se"tion "annot )e in(o:ed to "ope$ a person to transfer the property. A ort,a,e ade )y a dis;+a$ified person does not therefore )e"oe (a$id on that person "easin, to )e dis;+a$ified. !ii$ar$y& the interest of a ind+ re(ersioner is spes s+""essionis or a ere "han"e of s+""ession +nder !e"tion 3a4 and this "han"e of s+""ession is ina$iena)$e. If therefore& the re(ersioner transfers s+"h interest and after%ards a";+ires the property& this se"tion %i$$ not operate so as to "ope6 s+"h heir to transfer the property. B+t a >+$$ Ben"h of the Madras i,h o+rt In +a Mas7id (. Dodianiandra Ce(iah& has he$d that e(en in "ase of spes s+""essionis& the transferor is pre"$+ded fro ;+estionin, the (a$idity of the transfer if he $ater on a";+ires interest in the property. It is s+)itted that a distin"tion sho+$d )e dra%n )et%een 14 a transfer %hi"h is professed$y one of a ere ri,ht or a ere "han"e of s+""ession& and 24 a transfer of a spe"ifi" property %hi"h the transferor erroneo+s$y represents that he is a+thoried to transfer. Transfer of the forer "$ass %o+$d fa$$ %ithin the p+r(ie% of !e"tion 3a4 %hi$e those of the $atter "$ass %o+$d "oe +nder this se"tion. Transfer of spes s+""essionis.55 9hen a person transfers property representin, that he has a present interest therein %hereas he has& in fa"t& on$y a spes s+""essionis& the transferee is entit$ed to the )enefit of !e"tion ?# if he has ta:en the transfer on the faith of that representation and for "onsideration. To ho$d that the transfers )y the persons ha(e on$y a spes s+""essionis at the date of the transfer& are not %ithin the prote"tion afforded )y !e"tion ?#& %o+$d
destroy its +ti$ity to a $ar,e e-tent. The option of the transferee. A""ordin, to the present se"tion the option of the transfer "an on$y )e e-er"ised in the respe"t of an interest a";+ired )y the transferee %hi$st the "ontra"t of transfer sti$$ s+)sists. If the p+r"haser has rep+diated that transa"tion had re"o(ered his p+r"hase oney& or if the transa"tion %ere one of ort,a,e and the ort,a,e oney has )een repaid& then the re$ation of the transferor and transferee has "eased to e-ist& and no "$ai in respe"t of the property "an )e ade )y the $atter. The ri,ht of the se"ond transferee. The se"ond para,raph of the se"tion prote"ts the ri,hts of the se"ond transferee in ,ood faith and for "onsideration %ho has no noti"e of the option in fa(o+r of the first transferee. >or instan"e A& a ind+& %ho has )een separated fro his father& B se$$s to three fie$ds J&Y and K representatin, that he is a+thoried to transfer the sae. Of these fie$ds& K does not )e$on, to A& it ha(in, )een retained )y B on the partition& )+t on Bs dyin, A as heir o)tains K. Before "a$$s +pon A to de$i(er K to hi& A a,ain se$$s K se"ret$y to E %ho has no noti"e of the pre(io+s sa$e to nor of the option of . s+es A and E for re"o(ery of K. This s+it is $ia)$e to )e disissed for the reasons entioned a)o(e. In this i$$+stration E has paid "onsideration. !e"ond$y& he has a"ted honest$y. Third$y& E has no noti"e of the e-isten"e of the option of >o+rth$y& E p+r"hased the property )efore has e-er"ised the option for these reasons E a";+ires a ,ood tit$e to K and "annot )e o+sted )y . !e"tion 3a4 and ?# opared. !e"tion 3a4 and ?# re$ated to t%o different s+)7e"ts& and there is +nne"essary "onf$i"t )et%een the. !e"tion 3a4 dea$s %ith "ertain :inds of interests in property entioned therein& and prohi)its in transfer siip$i"iter of those interest. !e"tion ?# dea$s %ith representations to tit$e ade )y a transfer %ho had no tit$e at the tie of transfer& and pro(ides that the transfer sha$$ fasten itse$f on the tit$e %hi"h the transferor s+)se;+ent$y a";+ires. !e"tion 3a4 ena"ts a r+$e of s+)stanti(e $a% %hi$e !e"tion ?# ena"ts a r+$e of estoppe$ %hi"h is one of e(iden"e. The t%o pro(isions operate on different fie$ds and +nder different "onditions& and there is no ,ro+nd for 55 a4 readin, a "onf$i"t )et%een& or )4 "+ttin, do%n the a)it of the one )y referen"e to the other Both of the "an )e ,i(en f+$$ effe"ts on their o%n ters in their respe"ti(e spheres. !e"tion ?1 and ?# "opared. Both se"tions ?1 and ?# are )ased on the prin"ip$e of estoppe$ %here on a representation ade )y one party and a"ted +pon )y another& the ri,hts of the $atter are affe"ted. !e"tion ?1 re;+ires < a4 ,ood faith& and )4 e-er"ise of reasona)$e "are on the part of the transferee and a"tin, +pon the representation is eno+,h. The se"tion does not "ast on the transferee the d+ty to a:e in;+iry as re,ards
the po%er of the transferor to transfer the property.
PART PER>ORMAE @#5A. Part Perforan"e. 55 9here any person "ontra"ts to transfer for "onsideration any io(a)$e property )y %ritin, si,ned )y hi or on his )eha$f fro %hi"h the ters ne"essary to "onstit+te the transfer "an )e as"ertained %ith reasona)$e "ertainty& and the transferee has& in part perforan"e of the "ontra"t& ta:en possession of the property or any part thereof& or the transferee& )ein, a$ready in possession& "ontin+es in possession in part perforan"e of the "ontra"t and has done soe a"t in f+rtheran"e of the "ontra"t.& and the transferee has perfored or is %i$$in, to perfor his part of the "ontra"t& then& not%ithstandin, that %here there is an instr+ent of transfer& that the transfer has not )een "op$eted in the anner pres"ri)ed therefore )y the $a% for the tie )ein, in for"e& the transferor or any person "$aiin, +nder hi sha$$ )e de)arred fro enfor"in, a,ainst the transferee and persons "$aiin, +nder hi any ri,ht in respe"t of the property of %hi"h the transferee has ta:en or "ontin+ed in possession& other than a ri,ht e-press$y pro(ided )y the ters of the "ontra"t Pro(ided that nothin, in this se"tion sha$$ affe"t the ri,ht of a transferee for "onsideration %ho has no noti"e of the "ontra"t or of the part perforan"e thereof. The se"tion has )een des"ri)ed )y Pri(y o+n"i$& and the !+pree o+rt in !hara (. P+tte,o%da& as a partia$ iportation of the En,$ish e;+ita)$e do"trine of part perforan"e. By (irt+e of this se"tion& part perforan"e does not ,i(e rise to an e;+ity& as in En,$ish e;+ity in t%o respe"ts 14 there +st )e a %ritten "ontra"t6 and 24 it is on$y a(ai$a)$e as a defen"e. >ro the de"ided "ases the fo$$o%in, ay )e ta:en to )e the essentia$ e$eents for the app$i"ation of the do"trine 14 An a"t of part perforan"e +st )e an a"t done in perforan"e of the "ontra"t. A""ordin,$y& a"ts pre(io+s to the a,reeent do not "onstit+te part perforan"e& e.,.& a:in, of arran,eent for the payent of the p+r"hase. Pri"e. 24 the a"t re$ied on a perforan"e +st )e +ne;+i(o"a$$y& and in their nat+re& refera)$e to "ontra"t as that a$$e,ed. This r+$e is %e$$ i$$+strated )y the %e$$5:no%n En,$ish "ase Maddison (. A$derson. In this "ase& A ind+"ed a %oan to ser(e hi as a ho+se5:eeper %itho+t %a,es for any years )y a (er)a$ proise to $ea(e her in his %i$$ a $ife5estate in his $and. e died %itho+t a:in, any %i$$. The %oan so+,ht spe"ifi" perforan"e of the (er)a$ "ontra"t )+t her a"tion %as disissed )e"a+se her "ontin+an"e in ser(i"e did not refer dire"t$y to the "ontra"t as a$$e,ed )+t on the "ontrary %as e-p$i"a)$e %itho+t s+pposin, s+"h "ontra"t. >or the sae reason& it is %e$$ sett$ed that payent of pri"e is not a s+ffi"ient a"t of part5
perforan"e )e"a+se the payent "an )e e-p$ained on any other ,ro+nds and does not +ne;+i(o"a$$y s+,,est the e-isten"e of a "ontra"t re$atin, to $and. Indian $a% prior to 1F2F. Vario+s de"isions of o+rts in India had esta)$ished that as the do"trine of part perforan"e in En,$and ta:es an ora$ "ontra"t o+t of the !tat+te of >ra+ds& so in India& it ta:es a do"+ent re;+irin, re,istration o+t of the Re,istration and the Transfer of Property A"t. In Maddison (. A$derson& he$d that 'In a s+it fo+nded on s+"h part5perforan"e& the defendant is rea$$y "har,ed +pon the e;+ities res+$tin, fro the a"ts done in e-e"+tion of the "ontra"t and not 9ithin the eanin, of the !tat+te4 +pon the "ontra"t itse$f& if s+"h e;+ities %ere e-"$+ded& in7+sti"e of a :ind %hi"h the stat+te "annot )e tho+,ht to ha(e had in "ontep$ation& %o+$d fo$$o%.* It is %e$$ sett$ed that the En,$ish do"trine of the e;+ity of part5perforan"e has )een e)odied in se"tion @#5A of the Transfer of Property A"t. 9hen there is nothin, in the do"+ent re$ied on for the app$i"a)i$ity of the se"tion to sho% that the (endor and the (endee %ere ad ide on the ters for transfer of the property& the pro(isions of the se"tion %o+$d not )e app$i"a)$e. Co"trine +nder the A"t. !e"tion @#5A is on$y eant to )rin, a)o+t a )ar a,ainst enfor"eent of ri,hts )y a $essor in respe"t of property of %hi"h the $essee had a$ready ta:en possession& )+t does not ,i(e any ri,ht to the $essee to "$ai possession or to "$ai any other ri,ht on the )asis of an +nre,istered $ease. This se"tion is on$y a(ai$a)$e as a defen"e to a $essee and not as "onferrin, a ri,ht on the )asis of %hi"h the $essee "an "$ai ri,hts a,ainst the $essor. After !e"tion @#5A %as ena"ted& the on$y "ase in %hi"h the En,$ish do"trine of e;+ity of part perforan"e "an )e app$ied in India& is %here the re;+ireents of !e"tion @#5A are satisfied. To ;+a$ify for the prote"tion of the do"trine of part5perforan"e& it +st )e sho%n that there is a "ontra"t to transfer for "onsideration io(a)$e property and the "ontra"t is e(iden"ed )y a %ritin, si,ned )y the person so+,ht to )e as"ertained %ith reasona)$e "ertainty. These are pre5re;+isites to in(o:e e;+ita)$e do"trine of part5perforan"e. After esta)$ishin, the afore5entioned "ir"+stan"es& it +st )e f+rther sho%n that a transferee had in part perforan"e of the "ontra"t either ta:en possession of the property or any part thereof or the transferee )ein, a$ready in possession "ontin+es in possession in part5perforan"e of the "ontra"t and has done soe a"t in f+rtheran"e of the "ontra"t. There +st )e a rea$ ne-+s )et%een the "ontra"t and the a"ts done in p+rs+an"e of the "ontra"t and +st )e +ne;+i(o"a$$y refera)$e to the "ontra"t. Anythin, done in f+rtheran"e of the "ontra"t post+$ates the pre5e-istin, "ontra"t and the a"ts done in f+rtheran"e thereof. Therefore& the a"ts anterior to the "ontra"t or ere$y in"identa$ to the "ontra"t %o+$d hard$y pro(ide any e(iden"e of part perforan"e. The transferee +st hise$f )e %i$$in, to perfor his part of the "ontra"t& for no
e;+ities "an arise in fa(o+r of a person %ho is not %i$$in, to perfor his part of the "ontra"t. A""ordin,$y& a person %ho has ta:en possession "annot resist dispossession if he is not %i$$in, to pay the pri"e a,reed +pon. !e"tion @#5A affords prote"tion to a transferee on "ertain "onditions& one of %hi"h is that the transferee has perfored or is %i$$in, to perfor his part of the "ontra"t. 9here one party to a "ontra"t rep+diates the "ontra"t& the other party to the "ontra"t %ho "$ais spe"ifi" perforan"e of the "ontra"t is a)so$(ed fro his o)$i,ation to perfor the "ontra"t. It is a sett$ed $a% that %here a party to a "ontra"t "oits an anti"ipatory )rea"h of "ontra"t& the other party to the "ontra"t ay treat the )rea"h as p+ttin, an end to the "ontra"t and +se for daa,es& )+t in that e(ent he "annot as: for spe"ifi" perforan"e +n$ess he sho%s his readiness and %i$$in,ness to perfor the "ontra"t. In 0o(indrao Mahadi: (. Ce(i !ahi& in order to ;+a$ify for the prote"tion "onferred )y the e;+ita)$e do"trine of part perforan"e as ena"ted in !e"tion @#5A& the fo$$o%in, fa"ts ha(e to )e satisfied& nae$y i4 The transferor has "ontra"ted to transfer for "onsideration any io(a)$e property )y %ritin, si,ned )y hi or on his )eha$f fro %hi"h the ters ne"essary to "onstit+te the transfer "an )e as"ertained %ith reasona)$e "ertainty6 ii4 the transferee has& in part5perforan"e of the "ontra"t& ta:en possession of the property or any part thereof& or the transferee& )ein, a$ready in possession& "ontin+es in possession in part5perforan"e of the "ontra"t6 iii4 The transferee had done soe a"t in f+rtheran"e of the "ontra"t6 and i(4 The transferee is %i$$in, to perfor his part of the "ontra"t. >+rther it %as reiterated that to ;+a$ify for the prote"tion of the do"trine of part perforan"e& it +st )e sho%n that there is an a,reeent to transfer of io(a)$e property for "onsideration and the "ontra"t is e(iden"ed )y a %ritin, si,ned )y the person so+,ht to )e )o+nd )y it and fro %hi"h the ters ne"essary to "onstit+te the transfer "an )e as"ertained %ith reasona)$e "ertainty. Lord Reid said in !teadans "ase& that one +st not first $oo: at the ora$ "ontra"t and then see %hether the a$$e,ed a"ts of part perforan"e are "onsistent %ith it. One +st first $oo: at the a$$e,ed a"ts of part5perforan"e are consistent with it. One must frst look at the alleged acts o part-perormance and see whether they prove that there must be a contract and it is only i they do so prove that one can bring in the oral contract. This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by Section 5-!. "ven or invoking the e#uitable doctrine o part-perormance$ there has to be a contract in writing rom which the terms necessary to constitute the transer can be ascertained with reasonable certainty. Thereore$ the correct view in India would be to look at that writing that is o%ered as a contract or transer or consideration on any immovable property and then e&amine the acts said to have been done in urtherance o the cont t and fnd out whether there is a real ne&us between the contract and the acts pleaded as in part perormance.
!e"tion @#5A post+$ates a %ritten "ontra"t fro %h ich the terms necessary to constitute the transer can be ascertained with reasonable certainty. !dverse 'ossession ( restraining 'ossession. -Once it is submitted by implication that plainti% came into possession o land lawully and continued to remain in possession till the date o suit$ the plea o adverse possession would not be available to the deendant. The plea o adverse possession and retaining possession by operation o Section 5-! are inconsistent with each other. !ct o part 'erormance. In Sunil )r. Sarkar v. !ghor )r. *asu$ held that or a tenant continuing in possession o an immovable property ater a contract to transer$ written and signed by the landlord$ to get the protection under S. 5-!$ it is necessary to show that he continues in possession in pursuance o the contract. +ere continuance in possession does not satisy the re#uirement o S. 5-! .
as perfored or is %i$$in, to perfor The se"tion "onfers no ri,ht on a party %ho %as not %i$$in, to perfor his part of the "ontra"t. A prospe"ti(e (endee %ho had ta:en possession "o+$d not resist dispossession& if he %ere not %i$$in, to pay the pri"e a,reed +pon. In ath+$a$ (. Phoo$"hand& In 7+d,in, %i$$in,ness to perfor& the "o+rt +st "onsider the o)$i,ations of the parties and the se;+en"e in %hi"h they %ere to )e perfored. !o a )+yer "o+$d not )e said to )e not %i$$in, if he %as to pay the )a$an"e of the p+r"hase oney after the re(en+e re"ords %ere re"tified and did not do so )e"a+se they %ere not re"tified. This is a$so the position in En,$ish La%& )ased on the a-i& he %ho see:s e;+ity +st do e;+ity. !o& %here a person in possession +nder an a,reeent to $ease& has fai$ed to perfor a "ondition pre"edent to the a,reeent& he %as not a$$o%ed to raise the e;+ity. !e"tion @#5A and the Re,istration A"t. By reason of the part5perforan"e& a$tho+,h the ters of the "ontra"t are ade )indin, on the parties thereto& the transferee %i$$ not ,et a ,ood tit$e +n$ess the transfer is effe"ted a""ordin, to $a%& that is& e-e"+ted and re,istered. In this (ie%& re,istration %o+$d sti$$ )e ne"essary in order that the transferee ay a";+ire a perfe"t and a ar:eta)$e tit$e. The app$i"ation of !e"tion @#5A is not $iited to "ase of "ontra"t or transfers %hi"h are re;+ired to )e re,istered +nder the Re,istration A"t or the T.P. A"t !e"tion @#5A prote"ts the possession of a transferee +nder a "ontra"t or instr+ent of transfer for "onsideration %hi"h tho+,h re;+ired to )e re,istered& has not )een re,istered. This ri,ht of the transferee is a(ai$a)$e on$y a,ainst the transferor or any person "$aiin, +nder hi. !e"tion @#5A does not pro(ide either e-press$y or )y ne"essary ip$i"ation that the prote"tion is a(ai$a)$e on$y in a "ase %here the "ontra"t or the instr+ent of transfer is in(a$id for non5re,istration or the sae +nder the Re,istration A"t& or +nder the T.P. A"t. In 0o(indrao ahadi: (. Ce(i !ahai& It %as he$d that ere ora$ a,reeent to dis"har,e a ort,a,e "an )e hard$y )e said to )e an a"t of part5perforan"e +n$ess in fa"t s+"h an a"t is done )y a dis"har,ed ort,a,e deed )ein, ret+rned to the ort,a,or.
!e"tion @#5A re;+ires that the person "$aiin, the )enefit of part perforan"e +st a$%ays )e sho%n to )e ready and %i$$in, to perfor his part of the "ontra"t. And if it is sho%n that he %as not ready and %i$$in, to perfor his part of the "ontra"t& he %i$$ not ;+a$ify for the prote"tion of the do"trine of part5perforan"e. A transferee in possession of property in p+rs+an"e of an a,reeent of sa$e and entit$ed to the prote"tion )y !e"tion @#5A of the Transfer of Property A"t on the )asis of the do"trine of part5perforan"e& is entit$ed to fi$e a s+it %ith a (ie% to prote"t his possession and to see: a de"$aration that he is entit$ed to possession and for and in7+n"tion restrainin, the transferor or his a$ienees fro interferin, %ith his possession. The se"tion "annot )e +sed )y the transferee to ha(e his tit$e to the property de"$ared or to see: re"o(ery of possession of the property. The do"trine of part5perforan"e is a(ai$a)$e to retain the possession and not to ,et the possession. The )enefit of the se"tion to a $ar,e n+)er of "ases %here the transferee ay not )e a)$e to s+stain his possession as a,ainst his transferor. !e"tion @#5A post+$ates ta:in, possession of the property in part perforan"e of the "ontra"t on$y in a $a%f+$ anner. It "annot )e predi"ated that it p+rports to ,i(e prote"tion to those transferees %ho ha(e ta:en possession of the property in a anner "ontrary to $a% %hi"h %as in for"e and app$i"a)$e to the. The se"tion app$ies not on$y to "ontra"ts of transfers as s+"h )+t a$so to instr+ents of transfers. A$tho+,h the r+$es "ontained in s. @#5A of the Transfer of Property A"t are the dire"t iportation of En,$ish E;+ita)$e Co"trine of Part5perforan"e& yet the Indian La% and its interpretation differs fro the En,$ish $a% i4 In India& the prote"tion of !e"tion @#A is a(ai$a)$e on$y %hen the "ontra"t is in %ritin,. In En,$and& ho%e(er& the "ontra"t ay )e ora$ as %e$$& ii4 In India& this se"tion does not ,i(e any ri,ht of a"tion& i.e.& it is not any a"ti(e ri,ht. It is sip$e a ri,ht to defend the possession& hen"e on$y a passi(e ri,ht& and iii4 In India& the prote"tion +nder part5perforan"e is a(ai$a)$e as a atter of stat+tory ri,ht )+t in En,$and this ri,ht is an e;+ita)$e ri,ht on$y. Transferee for (a$+e %itho+t noti"e. As is e(ident fro the pro(iso& the do"trine of part perforan"e as e)odied in this se"tion "annot affe"t the ri,ht of a transferee for the (a$+e %itho+t noti"e of the pre(io+s "ontra"t of its part perforan"e. Cefen"e of part perforan"e to an a"tion of in e7e"tent.55 !+pree o+rt in ath+$a$ (. Phoo$ hand& %hi$e interpretin, !e"tion @#5A he$d that& If these "onditions are f+$fi$$ed& then not%ithstandin, that the "ontra"t& tho+,h re;+ired to )e re,istered& has not )een re,istered& or& %here there is an instr+ent of transfer& that the transfer has not )een "op$eted in the anner pres"ri)ed therefor )y the $a% for the tie )ein, in for"e& the transferor or any person "$aiin, +nder hi is de)arred fro enfor"in, a,ainst the transferee any ri,ht in respe"t of the property of %hi"h the transferee has ta:en or "ontin+ed in possession& other than a ri,ht e-press$y pro(ided )y the ters of the "ontra"t. Va$idity of part perforan"e. 55 9here )ona fide p+r"hasers for (a$+e had no :no%$ed,e of defe"t in tit$e of se$$er& he$d that s+"h p+r"hasers %i$$ )e prote"ted )y !e"tion @#5A and sa$e deed in their fa(o+r
"o+$d not )e de"$ared as (oid. MORT0A0E !. @8 'Mort,a,e*& 'ort,a,or*& 'ort,a,ee*& 'ort,a,e < oney* and 'ort,a,e < deed defined. 55 a4 A ort,a,e is the transfer of an interest in spe"ifi" io(a)$e property for the p+rpose of se"+rin, the payent of oney ad(an"ed or to )e ad(an"ed )y %ay of $oan& an e-istin, or f+t+re de)t& or the perforan"e of an en,a,eent %hi"h ay ,i(e rise to a pe"+niary $ia)i$ity. The transferor is "a$$ed a ort,a,or& the transferee a ort,a,ee& the prin"ipa$ oney and interest of %hi"h payent is se"+red for the tie )ein, are "a$$ed the ort,a,e5 oney & and the instr+ent )y %hi"h the transfer is effe"ted is "a$$ed a ort,a,e5deed. The essentia$ nat+re of ort,a,e is that it is a transfer of an interest in spe"ifi" io(a)$e property to the $ender& "a$$ed a ort,a,ee. The ort,a,e is sip$y the transfer of an interest in the property ort,a,ed. It is not the transfer of a)so$+te interest in the property. There is ne"essari$y a transfer of interest in spe"ifi" io(a)$e property )y reason of the e-e"+tion of the ort,a,e. That %o+$d )e there irrespe"ti(e of %hether a de)t has arisen or not )e"a+se it is a ne"essary e$eent of ort,a,e& )+t a ort,a,e is not a$%ays e-e"+ted for se"+rin, de)t %hi"h has a$ready arisen. A ort,a,e "an )e e-e"+ted for se"+rin, payent of oney to )e ad(an"ed. Money %hi"h ay )e paid $ater ay )e se"+red )y a "+rrent ort,a,e. E;+ita)$e ort,a,es e-e"+ted in fa(o+r of )an:s to se"+re o(erdraft a""o+nts %o+$d operate as ort,a,es )+t the de)ts there+nder %o+$d arise on$y %hen $ia)i$ity is in"+rred )y reason of a de)it )ein, fo+nd in the o(erdraft a""o+nt as a res+$t of operatin, the a""o+nt. E$eents of a Mort,a,e The fo$$o%in, are the essentia$ "hara"teristi"s of a ort,a,e 14 There +st )e a transfer of an interest. 24 There +st )e spe"ifi" io(a)$e property intended to )e ort,a,ed. #4 The transfer +st )e ade to se"+re the payent of a $oan or to se"+re the perforan"e of a "ontra"t. Transfer of Interest The ri,ht of the ort,a,ee is on$y an a""essory ri,ht %hi"h is intended ere$y to se"+re the d+e payent of the de)t. Mort,a,e is sip$y a transfer of interest in the io(a)$e property %hi$e the o%nership sti$$ retains %ith the ort,a,ors. Th+s& %here a 7oint fai$y property is s+)7e"t to ort,a,e& there is no transfer of o%nership and the "opar"eners )ein, its $a%f+$ o%ners are "opetent to a$$ot the ort,a,ed property in ora$ partition to any of the "opar"eners. The "opar"ener to %ho the ort,a,ed property is a$$otted )e"oes its a)so$+te o%ner and is entit$ed to redee the ort,a,e. The %ords transfer of an interest a$so )rin, o+t the distin"tion )et%een i4 a ort,a,e and an a,reeent to ort,a,e& and ii4 a ort,a,e and a "har,e. A ort,a,e is a
transfer of an interest and "reates a ri,ht in re& )+t ere a,reeent that one person sha$$ $end the oney and the other %o+$d )orro% it )y %ay of ort,a,e& does not "reate any interest in the property intended to )e ort,a,ed. !+"h an a,reeent is not e(en "apa)$e of spe"ifi" perforan"e& that is& the "o+rt "annot "ope$ the parties to )orro% or $end oney. !+"h an a,reeent on$y ,i(es rise to an o)$i,ation to pay daa,es. !in"e a ort,a,e "reates a ri,ht in re& s+"h ri,ht is a(ai$a)$e a,ainst a$$ s+)se;+ent transferees of the ort,a,ed property irrespe"ti(e of noti"e. The )road distin"tion )et%een a ort,a,e and a "har,e is 55 14 9hereas a "har,e on$y ,i(es a ri,ht to the payent o+t of a parti"+$ar io(a)$e property %itho+t transferrin, any interest in the property a ort,a,e is in essen"e a transfer of an interest in spe"ifi" io(a)$e property. 24 a ort,a,e is ,ood a,ainst a s+)se;+ent transferee and ay )e enfor"ed a,ainst a )ona fide p+r"haser for (a$+e %ith or %itho+t noti"e& %hi$e a "har,e is ,ood on$y a,ainst a s+)se;+ent transferee %ith noti"e. !pe"ifi" io(a)$e property. The des"ription of the property in the ort,a,e deed& if any& +st at $east )e s+ffi"ient to identify the property. onsideration of ort,a,e. The "onsideration of a ort,a,e ay )e either 14 oney ad(an"ed or to )e ad(an"ed )y %ay of $oan6 24 an e-istin, or f+t+re de)t6 or #4 the perforan"e of an en,a,eent ,i(in, rise to pe"+niary $ia)i$ity. Effe"t of fai$+re of ort,a,ee to ad(an"e ao+nt +nderta:en.55 A ort,a,e +nder the Transfer of Property A"t is a transfer of an interest of an interest in the $and ort,a,ed& and not a ere "ontra"t. On"e a do"+ent transferrin, io(a)$e property has )een re,istered& the transa"tion passes o+t of the doain of a ere "ontra"t and fa$$s into one of a "on(eyan"e. Therefore& a transa"tion of ort,a,e fora$$y& e-e"+ted does not )e"oe (oid or ineffe"ti(e ere$y )e"a+se the ort,a,e fai$s to ad(an"e the ao+nt of oney +nderta:en to )e ad(an"ed )y hi. If& %itho+t ad(an"in, the ao+nt a,reed to )e ad(an"ed& he s+es on the tit$e "reated +nder the deed of ort,a,es the "o+rt %i$$ not a%ard hi a de"ree for anythin, ore than %hat he has ad(an"ed. B+t this does not ean that the ort,a,e is in(a$id. >ors of Mort,a,e 1.!ip$e Mort,a,e.55 The "hara"teristi"s of a sip$e ort,a,e are 14 that the ort,a,or +st ha(e )o+nd hise$f persona$$y to repay the $oan& 24 that to se"+re the $oan he has transferred to the ort,a,ee the ri,ht to ha(e spe"ifi" io(a)$e property so$d in the e(ent of his ha(in, fai$ed to repay& and #4 that possession of the property is not ,i(en to the ort,a,ee. o de$i(ery of Possession The o+tstandin, feat+re of a sip$e ort,a,e is that possession is not de$i(ered to the ort,a,ee& )+t reains %ith the ort,a,or. !in"e the ort,a,ee is not p+t into possession of the property& he has no ri,ht to satisfy the de)t o+t of the rents and profits& nor "an he a";+ire the a)so$+te o%nership of ort,a,ed property )y fore"$os+re. It %i$$ )e seen that the ort,a,e& has& on defa+$t of the ort,a,or& a t%o fo$d "a+se of
a"tion < One arisin, o+t of the )rea"h of the "on(enant of repay and the other arisin, o+t of the ort,a,e. The ort,a,ee ay& therefore& s+e hi for the ort,a,e5oney or ay pro"eed a,ainst the property or ay "o)ine )oth these reedies in one s+it. If he s+es on persona$ +nderta:in, on$y& he o)tains a oney de"ree )+t if he s+es on the ort,a,e&he o)tains an order for the sa$e of the property. 2. Mort,a,e )y "onditiona$ !a$e.55 The Mohaedan La% for)ids the ta:in, of interest and therefore in order to e(ade the prohi)ition of interest& a :ind of ort,a,e& :no%n as )ye)i$ %afa %as de(ised. The ort,a,or p+rported to a:e o(er the property to the ort,a,ee& )y %ay of an a)so$+te sa$e& and the ort,a,ee the ostensi)$e )+yer4 a,reed to rese$$ the property& at the e-piry of a "ertain stip+$ated tie& on )ein, repaid the oney ad(an"ed )y hi. Essentia$s of a ort,a,e )y "onditiona$ sa$e. In a ort,a,e )y "onditiona$ sa$e. 55 14 the ort,a,or +st ostensi)$y se$$ the io(a)$e property& 24 there +st )e a "ondition that either& a4 on the repayent of the oney d+e +nder the ort,a,e on a "ertain date& the sa$e sha$$ )e"oe (oid or the )+yer sha$$ retransfer the property to the se$$er& or )4 in defa+$t of payent on that date the sa$e sha$$ )e"oe a)so$+te. #4 the "ondition +st )e e)odied in the do"+ent %hi"h effe"ts or p+rports to effe"t the sa$e. This is& therefore& a ort,a,e in %hi"h the ostensi)$e sa$e is "onditiona$ and intended sip$y as a se"+rity for the de)t. The %ord 'ostensi)$e* eans that it has an appearan"e of sa$e )+t is rea$$y not a sa$e. It is ere$y e-e"+ted in for of sa$e %ith a "ondition atta"hed to it. The ostensi)$e sa$e need not )e a""opanied %ith possession. The ort,a,ee does not a";+ire any persona$ ri,ht a,ainst the ort,a,or. It is to )e noted that the sa$e does not )e"oe a)so$+te in defa+$t of payent on the d+e date )y itse$f +nti$ there is a de"ree a)so$+te$y depri(in, the ri,ht of redeption of the ort,a,or. >or a transa"tion to )e a ort,a,e )y "onditiona$ sa$e pro(iso to !e"tion @8 en(isa,es that the "ondition effe"tin, or p+rportin, to effe"t the sa$e as a ort,a,e transa"tion& +st )e in"orporated in one and the sae deed. 9here separate do"+ents of sa$e deed of re"on(eyan"e and $ease deed %ere e-e"+ted in the sae transa"tion and the "ondition effe"tin, the sa$e as a ort,a,e %as not e)odied in the sa$e deed itse$f& the ort,a,or %as de)arred fro sayin, that the transa"tion %as in the nat+re of ort,a,e )y "onditiona$ sa$e. #. s+fr+"t+ary Mort,a,e.55 The "hara"teristi"s of a +s+fr+"t+ary ort,a,e are 14 possession of the property is de$i(ered to the ort,a,ee6 24 the ort,a,ee is to ,et rents and profits in $ie+ of interest or prin"ipa$ or )oth6 #4 no persona$ $ia)i$ity is in"+rred )y the ort,a,or6 and ?4 the ort,a,ee "annot fore"$ose or s+e for sa$e. o persona$ $ia)i$ity. The ort,a,or "annot )e s+ed persona$$y for the de)t. The ort,a,ee is on$y entit$ed to reain in possession of the ort,a,ed property ti$$ the prin"ipa$ and interest are defrayed a""ordin, to the ters of the a,reeent. !in"e a +s+fr+"t+ary ort,a,ee is
entit$ed to reain in possession +nti$ the de)t is paid off& no tie $iit "an )e fi-ed e-press$y d+rin, %hi"h the ort,a,e is to s+)sist. ?. En,$ish Mort,a,e.55 An En,$ish Mort,a,e is a transa"tion in %hi"h the ort,a,or )inds hise$f to repay the ort,a,e oney on a "ertain date& and transfers the ort,a,e property a)so$+te$y to the ort,a,ee& )+t s+)7e"t to a pro(iso that he %i$$ retransfer it to the ort,a,or +pon payent of the departent. Th+s& the ain feat+res of this ort,a,e are&55 i4 that the ort,a,or sho+$d )ind hise$f to repay the ort,a,e oney on a "ertain day6 ii4 that the ort,a,e property sho+$d )e transferred a)so$+te$y to the ort,a,ee6 and iii4 That s+"h a)so$+te transfer sho+$d )e ade s+)7e"t to a pro(iso that the ort,a,ee %i$$ re"o(ery the property to the ort,a,or& +pon payent )y hi of the ort,a,e oney on the appointent day. @.Mort,a,e )y deposit of tit$e5deeds.55 In En,$and& a ort,a,e of this :ind is "a$$ed an ' e;+ita)$e ort,a,e* as opposed to a 'ort,a,e* )e"a+se in this type of ort,a,e& there is sip$y a deposit of do"+ent of tit$e %itho+t anythin, ore& %itho+t %ritin, or %itho+t any other fora$ities. The o)7e"t of the Le,is$at+re in pro(idin, for this :ind of ort,a,e is to ,i(e fa"i$ity to the er"anti$e "o+nity in "ases %here it ay )e ne"essary to raise oney a$$ of a s+dden )efore an opport+nity "a$$ )e afforded of preparin, the ort,a,e5deed. This ort,a,e& therefore& does not re;+ire any %ritin, and )ein, an ora$ transa"tion& is not affe"ted )y the La% of Re,istration. The ter E;+ita)$e ort,a,e and )ein, inappropriate in India on a""o+nt of the a)sen"e of "$assifi"ation or di(ision of estates or ri,hts into $e,a$ and e;+ita)$e& it is "a$$ed a ort,a,e )y deposit of tit$e5deeds. 3. Anoa$o+s ort,a,e.55 !e(era$ other :inds of ort,a,es are in +se in (ario+s parts of India %hi"h are in the nat+re of +s+fr+"t+ary ort,a,e. These and other types of ort,a,es ha(e )een ,i(en the nae of anoa$o+s ort,a,e. Anoa$o+s ort,a,e has )een defined as a ort,a,e %hi"h does not fa$$ +nder any of the fi(e "$asses entioned a)o(e. An anoa$o+s ort,a,e in"$+des 1. A sip$e ort,a,e +s+fr+"t+ary is a "o)ination of a sip$e ort,a,e and a +s+fr+"t+ary ort,a,e and "onse;+ent$y an anoa$o+s ort,a,e. In this transa"tion& the ort,a,ee is in possession and pays hise$f the de)t o+t of the rents and profits and there is a$so persona$ +nderta:in, as %e$$ as a ri,ht to "a+se the property to )e so$d on the e-piry of the date fi-ed for payent. 2. A ort,a,e +s+fr+"t+ary )y "onditiona$ sa$e is another instan"e of an anoa$o+s ort,a,e. ere the ort,a,ee is in possession as a +s+fr+"t+ary ort,a,ee for a fi-ed period and if the de)t is not dis"har,ed at the e-piry of the period& he ,ets a$$ the ri,hts of a ort,a,ee )y "onditiona$ sa$e. In "ase the de)t is not paid %ithin the tie fi-ed& the ort,a,ee ,ets the ri,ht of fore"$os+re& that is a ri,ht to depri(e the ort,a,ors ri,ht of redeption.
Mort,a,e Mode of transfer in a ort,a,e.55 There are three %ays in %hi"h property ay )e transferred )y %ay of ort,a,e5 14 Re,istered instr+ent. 24 Ce$i(ery of Possession. #4 Ceposit of tit$e5deeds. Re,istered instr+ent. In the "ase of a ort,a,e other than a ort,a,e )y deposit of tit$e5deeds& if the prin"ipa$ oney se"+red is Rs. 1GG or +p%ards& a re,istered instr+ent is "op+$sory. Re,istration of ort,a,e )y deposit of tit$e deeds.55 9hen the de)tor deposits %ith the "reditor the tit$e deeds of his property %ith an intent to "reate a se"+rity& the $a% ip$ies a "ontra"t )et%een the parties to "reate a ort,a,e& and no re,istered instr+ent is re;+ired. Ri,ht of redeption.55 The ost iportant ri,ht possessed )y the ort,a,or is the ri,ht to redee the ort,a,e. nder this se"tion& at any tie after the prin"ipa$ oney has )e"oe d+e& the ort,a,or has a ri,ht on payent or tender of the ort,a,e5oney to re;+ire the ort,a,ee to re"on(ey the ort,a,e property to hi. The ri,ht "onferred )y this se"tion has )een "a$$ed the ri,ht to redee and a s+it to enfor"e this ri,ht has )een "a$$ed a s+it for redeption. In En,$ish La%& the ort,a,ors ri,ht to redeption "ontained in for E;+ity of redeption. This reedy is a(ai$a)$e to the ort,a,or on$y )efore the ort,a,ee has fi$ed a s+it for enfor"eent of the ort,a,e. !+)se;+ent to the fi$in, of the s+it& this reedy is not a(ai$a)$e. $o, on Redeption. The ri,ht of redeption is& therefore& in(ada)$e in the sense that it "annot )e denied to the ort,a,or e(en tho+,h he ay )y e-press "ontra"t a)andon his ri,ht to redee the property. E;+ity in its insisten"e +pon the prin"ip$e that a ort,a,e is intended ere$y to afford se"+rity to the $ender& has he$d an a,reeent %hi"h pre(ents redeption as (oid. Lord Lind$ey in !tan$ey (. 9i$de& e-po+nded the prin"ip$e as +nder. ' The prin"ip$e is this5 a ort,a,e is a "on(eyan"e of $and or an assi,nent of "hatte$s as se"+rities for the payent of a de)t or the dis"har,e of soe other o)$i,ation for %hi"h it is ,i(en. That is the idea of a ort,a,e6 and the se"+rity is redeea)$e on the payent or dis"har,e of s+"h de)t or o)$i,ation& any pro(ision to the "ontrary not%ithstandin,. Any pro(ision inserted to pre(ent redeption on payent or perforan"e of the de)t or o)$i,ation for %hi"h the se"+rity %as ,i(en & is %hat is eant )y a "$o, or fetter on the e;+ity of redeption and is& therefore& (oid. It fo$$o%s fro
this& that on"e a ort,a,e a$%ays ort,a,e. A "$o, or fetter is soethin, %hi"h is "onsistent %ith the idea of se"+rity. If I ,i(e a ort,a,e on a "ondition that I sha$$ not redee& that is a rep+,nant "ondition. The o+rts of E;+ity ha(e fo+,ht for years to aintain the do"trine that a se"+rity is redeea)$e. B+t %hen and +nder %hat "ir"+stan"es= On the perforan"e of the o)$i,ation for %hi"h it %as ,i(en. If the o)$i,ation is the payent of a de)t& the se"+rity is redeea)$e on the payent of the de)t. Ear$ier in Veon (. Bethe$$& it %as said that& this "o+rt as a "o+rt of "ons"ien"e& is (ery 7ea$o+s of persons ta:in, se"+rities for a $oan& and "on(ertin, s+"h se"+rities into p+r"hases. And therefore I ta:e it to )e an esta)$ished r+$e& that a ort,a,e "an ne(er pro(ide at the tie of a:in, the $oan for any e(ent or "ondition %hi"h the e;+ity of redeption sha$$ )e dis"har,ed and the "on(eyan"e a)so$+te. And there is ,reat reason and 7+sti"e in this r+$e&for ne"essito+s en are not& tr+$y spea:in,& free en )+t& to ans%er a present e-i,en"y& %i$$ s+)it to any ters that the "raft ay ipose +pon the. In Dre$i,ner (. e% Pata,onia Meat and o$a !tora,e o. Ltd.& it %as said that this 7+risdi"tion %as ere$y a spe"ia$ app$i"ation of a ore ,enera$ po%er to re$ie(e a,ainst pena$ties and to o+$d the into ere se"+rities. The "ase of the "oon $a% ort,a,e of $and is indeed a ,ross one. The $and %as "on(eyed to the "reditor +pon the "ondition that if the oney& he had ad(an"ed to the de)tor& %as repaid on a date and at a p$a"e naed& the fee sip$e %o+$d re(est in the $atter& )+t that if the "ondition %as not stri"t$y and $itera$$y f+$fi$$ed& he sho+$d $ose and $and for e(er. 9hat ade the hardship on the de)tor a ,$arin, one %as the de)t sti$$ reained +npaid and "o+$d )e re"o(ered fro the de)tor not%ithstandin, that he had a"t+a$$y forfeited the $and to the ort,a,ee. E;+ity& therefore& at an ear$y date )e,an to re$ie(e a,ainst %hat %as (irt+a$$y a pena$ty )y "ope$$in, the "reditor to +se his $e,a$ tit$e as a ere se"+rity.* It sho+$d )e noted that the do"trine of "$o, on redeption app$ies on$y to dea$in,s %hi"h ta:e p$a"e )et%een the parties to a ort,a,e at the tie %hen the "ontra"t of ort,a,e is entered into. It does not app$y %here they s+)se;+ent$y (ary the ters +pon %hi"h the ort,a,e ay )e redeeed. Indian La%. Redeption in(o$(es t%o thin,s a4 re5transfer of the interest %hi"h had )een ori,ina$$y transferred to the ort,a,ee& and )4 de$i(ery of the possession. Both these thin,s are done )y (irt+e of the ters of ort,a,e& and in p+rs+an"e of an a,reeent )et%een the parties. Th+s& the re5transfer of the interest is a$so )y (irt+e of an a,reeent. nder the Indian La%& the ri,ht of redeption is a stat+tory ri,ht %hi"h "annot )e fettered )y any "ondition %hi"h ipedes or pre(ents redeption. Any s+"h "ondition is (oid as a "$o, on redeption. The Le,is$at+re has ;+ite ad(ised$y not +sed any s+"h %ords as 'in the a)sen"e of a "ontra"t to the "ontrary* in !e"tion 3G %ith a (ie% to pre(ent the ort,a,or fro "ontra"tin, hise$f o+t of his ri,ht of redeption at the tie of the ort,a,e. It is& therefore& anifest that the ri,ht "annot )e "$o,,ed. I$$+strati(e "ases on $o, 9hat is a "$o, on e;+ity of redeption is a atter of fa"t in ea"h "ase. >o$$o%in,
instan"es %o+$d a:e it "$ear. 14 ondition of sa$e in defa+$t.55 The "o+rts %i$$ i,nore any "ontra"t the effe"t of %hi"h is to depri(e the ort,a,or of his ri,ht to redee the ort,a,e. A""ordin,$y& if one of the ters of the ort,a,e is that on the fai$+re of the ort,a,or to redee the ort,a,e %ithin the spe"ified period& the ort,a,or %i$$ ha(e no "$ai o(er the ort,a,ed property and the ort,a,e deed %i$$ )e deeed to )e a deed of sa$e in fa(o+r of the ort,a,ee& it "annot )e ,i(en effe"t to. It p$ain$y ta:es a%ay a$to,ether the ort,a,ors ri,ht to redee the ort,a,e after the spe"ified period. This is not perissi)$e for ' on"e a ort,a,e a$%ays a ort,a,e* and therefore a$%ays redeea)$e.0an,adhar (. !han:ar La$4 24 Lon, ter for redeption.55 A $on, ter is not ne"essari$y a "$o, on redeption. In 0an,adhar (. !han:ar$a$a& it %as he$d )y the !+pree o+rt of India that the ters in the ort,a,e that it %i$$ not )e redeea)$e +nti$ the e-piry of 8@ years %as not a "$o, in the "ir"+stan"es of the "ase. Ce$i(erin, the opinion of the o+rt& !ar:ar . o)ser(ed the r+$e a,ainst "$o,s on the e;+ity of redeption no do+)t in(o$(es that the "o+rts ha(e the po%er to re$ie(e a party fro his )ar,ain. If he has a,reed to forfeit %ho$$y his ri,ht to redee in "ertain "ir"+stan"es& that a,reeent %i$$ )e a(oided. B+t the "o+rts ha(e ,one )eyond this. They ha(e a$so re$ie(ed ort,a,ors fro )ar,ains %here)y the ri,ht to redee has not )een ta:en a%ay )+t restri"ted. The o+rts 7+risdi"tion to re$ie(e a ort,a,or fro his )ar,ain depends on %hether it %as o)tained )y ta:in, ad(anta,e of any diffi"+$ty or e)arrassent that he i,ht ha(e )een in %hen he )orro%ed the oney on the ort,a,e. 9as the ort,a,or oppressed= 9as he iposed +pon= If he %as& then he ay )e entit$ed to re$ief. 9e then ha(e to see if there %as anythin, +n"ons"iona)$e in a,reeent that the ort,a,e %o+$d not )e redeeed for 8@ years. Is it oppressi(e= 9as he for"ed to a,ree to it )e"a+se of his diffi"+$ties= o% this ;+estion is essentia$$y one of fa"t and has to )e de"ided on the "ir"+stan"es of ea"h "ase.* #4 !tip+$ation )arrin, ort,a,ors ri,ht of redeption after "ertain period. If there is a stip+$ation %hi"h )ars ort,a,ors ri,ht of redeption after "ettain period& the stip+$ation is treated as a '"$o,* on the ort,a,ors e;+ita)$e ri,ht of redeption. ?4 ondition postponin, redeption in "ase of defa+$t. 55 In Mohaad !her Dhan (s. !eth !%ai Caya$& the ort,a,e %as for a ter of fi(e years %ith a "ondition that if the oney %as not paid& the ort,a,ee i,ht enter into possession for a period of t%e$(e years d+rin, %hi"h the ort,a,or "o+$d not redee. It %as he$d that s+"h a "ondition %as a "$o, )e"a+se it hindered an e-istin, ri,ht to redee. @4 Restraint on a$ienation.55 A stip+$ation that the ort,a,or sha$$ not a$ienate the ort,a,ed property or sha$$ not ta:e $oan on the se"+rity of the ort,a,ed property has )een he$d to )e a "$o,. 34 Redeption restri"ted to Mort,a,or.55 An a,reeent that redeption sho+$d )e a(ai$a)$e to the ort,a,or& and not to his heirs has )een he$d as a "$o,. H4 Pena$ty in "ase of defa+$t.55 !tip+$ation to "har,e at enhan"ed rate of interest fro the date of ort,a,e& in "ase of
defa+$t in payent& has )een he$d to )e a "$o,. The Dre,$in,ers ase. The fa"ts %ere A fir of %oo65)ro:ers $ent 1G&GGG po+nds to a "opany %hi"h "arried on )+siness as eat preser(ers& the a,reeent )ein, that the "opany i,ht pay off the $oan at the any tie )y ,i(in, a onths noti"e. The $oan %as not se"+red )y an ordinary ort,a,e )+t )y an ana$o,o+s se"+rity "a$$ed a f$oatin, "har,e. It %as f+rther a,reed )et%een the parties that for a period of fi(e years fro the date of $oan& the opany sho+$d not se$$ sheep s:ins to any person other than the $enders& so $on, as the ort,a,ees %ere %i$$in, to pay the )est pri"e offered )y any other person. It %as a$so a,reed that the ort,a,ees %o+$d not deand repayent )efore fi(e years had e$apsed. The $oan %as repaid %ithin t%o and a ha$f years. The point that fe$$ to )e de"ided )y the o+se of Lords %as 14 %hether the option on the sheep s:ins "ontin+ed to e-ist in fa(o+r of the ort,a,ees after repayent of the $oan& or 24 %hether it %as (oid as a "$o, on& or rep+,nant& to the e;+ity of redeption. It %as he$d that the ort,a,ees %ere entit$ed to an in7+n"tion restrainin, the ort,a,ors fro se$$in, sheep5s:ins d+rin, the reainder to the fi(e years period to any person other than the ort,a,ees. The "o+rt "ae to the "on"$+sion that the option to p+r"hase %as (a$id )e"a+se it %as not a ter of the ort,a,e at a$$. It %as he$d that There is no% no r+$e in e;+ity %hi"h pre"$+des a ort,a,ee.... fro stip+$atin, for any "o$$atera$ ad(anta,e pro(ided& s+"h "o$$atera$ ad(anta,e is not either i4 +nfair and +nfair and +n"ons"iona)$e6 or ii4 in the nat+re of a pena$ty "$o,,in, the e;+ity of redeption& or iii4 in"onsistent %ith the $e,a$ or e;+ita)$e ri,ht to redee.* It is a ri,ht of the ort,a,or on redeption& )y reason of the (ery nat+re of the ort,a,e& to ,et )a": the s+)7e"t of the ort,a,e and to ho$d and en7oy as he %as entit$ed to ho$d and en7oy it )efore the ort,a,e. If he is pre(ented fro doin, so or is pre(ented fro redeein, the ort,a,e& s+"h pre(ention is )ad in $a%. If he is so pre(ented& the e;+ity of redeption is affe"ted )y that %hether apt$y or not& and it has a$%ays )een tered as a "$o,. !+"h a "$o, is ine;+ita)$e. This does not "o+ntenan"e it. Lon, ter for redeption )y itse$f& is not a "$o, on e;+ity of redeption. 9hether or not in a parti"+$ar transa"tion there is a "$o, on the e;+ity of redeption& depends priari$y +pon the period of redeption& the "ir"+stan"es +nder %hi"h the ort,a,e %as "reated& the e"onoi" and finan"ia$ position of the ort,a,or& and his re$ationship (is5a5(is hi and the ort,a,ee& the e"onoi" and so"ia$ "onditions in a parti"+$ar "o+ntry at a parti"+$ar point of tie& "+sto if any& pre(a$ent in the "o+nity or the so"iety in %hi"h the transa"tion ta:es p$a"e& and the tota$ity of the parties& the tie& the sit+ation& the "$a+ses for redeption either for payent of interest or any other s+& the o)$i,ations of the ort,a,ee to "onstr+"t or repair or aintain the ort,a,ed property in "ases of +s+fr+"t+ary ort,a,e& to ana,e as a atter of pr+dent ana,eent& these fa"tors +st )e "orre$ated to ea"h other and (ie%ed in a "oprehensi(e "onspe"t+s in the )a":,ro+nd of the fa"ts and the "ir"+stan"es of ea"h "ase& to deterine %hether these are "$o,s on e;+ity of redeption. It is sett$ed $a% in En,$and and in India that a ort,a,e "annot )e ade a$to,ether irredeea)$e or redeption ade i$$+sory. The $a% +st respond and )e responsi(e to the fe$t and dis"erni)$e "op+$sions of the "ir"+stan"es that %o+$d )e e;+ita)$e& fair
and 7+st and +n$ess there is anythin, to the "ontrary in the stat+s& $a% +st ta:e "o,nian"e of the fa"t and a"t a""ordin,$y. In the "onte-t of fast "han,in, "ir"+stan"es and e"onoi" sta)i$ity& $on,5ter for redeption a:es a ort,a,e an i$$+sory ort,a,e& tho+,h not de"isi(e. It sho+$d pria fa"ie )e an indi"ation as to ho% "$o,s on e;+ity to redeption sho+$d )e 7+d,ed. E-er"ise of the ri,ht of redeption The ort,a,ors ri,ht of redeption e-er"ised&55 i4 )y payin, or tenderin, ort,a,e5oney to the ort,a,ee o+tside the "o+rt& i.e. Pri(ate$y6 ii4 By depositin, the ao+nt in the "o+rt6 and iii4 By a s+it for redeption& payent or tender. Before redeption "an )e "$aied the ort,a,e oney +st ha(e )een i4 Paid& or ii4 tendered and the payent or tender +st ha(e )een ade at the proper tie and p$a"e. Payent ay )e ade on the ort,a,e hise$f or his a+thoried a,ent. 9hen there are se(era$ ort,a,ees& the payent sho+$d )e ade to a$$ of the 7oint$y. Tender eans an +n"onditiona$ offer to pay the oney +nder s+"h "ir"+stan"es that the ort,a,ee ay re"ei(e the oney there. Mort,a,ors ri,hts on redeption The ort,a,ors ri,hts on redeption are& 5 i4 de$i(ery of the ort,a,e5deed and do"+ents of tit$e re$atin, to the ort,a,ed property& ii4 Possession& and iii4 re"on(eyan"e or a":no%$ed,ent.
LEA!E LIEE !.1G@. Lease defined.55 A $ease of io(a)$e property is a transfer of a ri,ht to en7oy s+"h property& ade for a "ertain tie& e-press or ip$ied& or in perpet+ity& in "onsideration of a pri"e paid or proised& or of oney& a share of "rops& ser(i"e or any other thin, of (a$+e& to )e rendered periodi"a$$y or on spe"ified o""asions to the transferor )y the transferee& %ho a""epts the transfer on s+"h ters. Lessor& $essee& prei+ and rent defined.55 The transferor is "a$$ed the Lessor& the transferee is "a$$ed the $essee& the pri"e is "a$$ed the prei+& and the oney& share& ser(i"e or other thin, to )e so rendered is "a$$ed the rent. A $ease of io(a)$e property is a transfer of a ri,ht to en7oy s+"h property ade for a "ertain tie or in perpet+ity. The e-pression 'transfer of a ri,ht to en7oy* stands is "ontrast %ith the %ords 'transfer of o%nership* o""+rrin, in !e"tion @? in the definition of sa$e. In a sa$e& a$$ the ri,hts of o%nership& %hi"h the transferor has& passes on to the transferee. In a $ease& there is a partia$ transfer& that is a transfer of a ri,ht of en7oyent for a "ertain tie. The person %ho transfers the ri,ht is "a$$ed the $essor and the person to %ho the ri,ht is transferred is "a$$ed the $essee.
It sho+$d )e noted that %hi$e )oth a sa$e and a ort,a,e to a inor are (a$id& a $ease to a inor is (oid as the $ease iports a "o(enant )y transferee$essee4& to pay rent and perfor (ario+s "onditions %hi"h ay )e iposed in a $ease. A "ontra"t %ith a inor is (oid. The f+ndaenta$ "on"eption of a $ease is that it is the separation of the ri,ht of possession fro o%nership. !a$and said& a $ease& in this ,eneri" sense& is that for of en"+)ran"e %hi"h "onsists in a ri,ht to the possession and +se of property o%ned )y soe other person. It is the o+t"oe of the ri,htf+$ separation of o%nership and possession. Possession is the "ontin+in, e-er"ise of a ri,ht and& a$tho+,h a ri,ht is nora$$y e-er"ised )y the o%ner of it& it ay& in spe"ia$ "ases& )e e-er"ised )y soe)ody e$se. This separation of o%nership and possession ay )e either ri,htf+$ or %ron,f+$& and & if ri,htf+$& it is an en"+)ran"e of the tit$e of the o%ner. >or a $ease of io(a)$e property& there +st )e a $essor and a $essee. An a,reeent of $ease +st a$so )e e-e"+ted $a%f+$$y )y the $essor and the $essee "ontainin, the ters and "onditions of the $ease for $a%f+$ "onsideration. The $essor and $essee +st a$so )e persons %ho are "opetent to "ontra"t. n$ess the aforesaid re;+ireents are satisfied& an a,reeent of $ease of io(a)$e property "annot )e $a%f+$$y ade and e-e"+ted. A $a%f+$ a,reeent of $ease of io(a)$e property "annot )e $a%f+$$y ade and e-e"+ted. A $a%f+$ a,reeent of $ease of iediate$y property is therefore& a "ontra"t %ithin the eanin, of se"tion 1G of the "ontra"t A"t. In e(ery "ase& there is an ip$ied "ontra"t that the $essee %i$$ )e p+t in possession of the property of the $essor. The ter $ease iports a transfer of an interest to en7oy the property. One of the essentia$ "onditions of a $ease is that the tenant sho+$d ha(e the ri,ht to the e-"$+si(e possession of the $and. The essentia$ e$eents of a $ease are5 i4 the parties6 ii4 the s+)7e"t5atter of io(a)$e property6 iii4 the d+ration of a ri,ht to en7oy the io(a)$e property6 and i(4 the "onsideration. The parties. Both parties& i.e.& the $essor and the $essee +st )e "opetent to "ontra"t. A $ease "annot )e "reated %itho+t any e-press or ip$ied "ontra"t )et%een t%o parties. !+)7e"t5atter. The s+)7e"t5atter of a $ease +st )e io(a)$e property. C+ration. The ne-t e$eent is that the ri,ht to en7oy the property +st )e transferred for a "ertain tie or in perpet+ity. It ay "oen"e either in the present or on soe date in f+t+re or on the happenin, of a e(ent %hi"h is )o+nd to happen. 9here day is e-pressed for the "oen"eent of the $ease& s+"h day +st )e e-"$+ded in "op+tin, the %ho$e period of $ease. !e"tion 11G ena"ts that if the day of "oen"eent is not stated& the $ease )e,ins fro the date or e-e"+tion. If it is e-pressed to "oen"e fro a past day& that is on$y for the p+rpose of "op+tation& and the interest of the $essee )e,ins fro the date of e-e"+tion. Both the tie %hen the $ease )e,ins and the tie %hen i ends +st )e fi-ed. Apart fro
$eases for "ertain tie& a $ease ay )e in perpet+ity. !+"h $eases are ,enera$$y a,ri"+$t+ra$ $eases. A $ease of& io(a)$e property is a transfer of a ri,ht to en7oy s+"h property& ade for a "ertain tie& e-press or ip$ied or in perpet+ity& in "onsideration of a pri"e paid or proised& or of oney& a share of "rops& ser(i"e or any other thin, of (a$+e& to )e rendered periodi"a$$y or on spe"ified o""asions to the transferor )y the transferee& %ho a""epts the transfer on s+"h ters. There is no sip$e Lit+s Test distin,+ish a $ease as defined in !e"tion 1G@ fro a $i"en"e as defined in !e"tion @2 of the Easeent A"t& )+t the "hara"ter of the transa"tion t+rn on the operati(e intent of the parties. To p+t it pithi$y& if an interest in io(a)$e property& entit$in, the transferees to en7oyent& is "reated& it is a $ease& if perission to +se $and %itho+t ri,ht to e-"$+si(e possession is a$one ,ranted& a $i"en"e is the $e,a$ res+$t. Mar,ina$ (ariations to this )road stateent are possi)$e. Peranent Lease.55 In India& the peranent $eases or a $ease in perpet+ity ay )e "reated either e-press$y or inferred fro the "ir"+stan"es of a ,i(en "ase. In the $atter "ase it is said to ha(e )een "reated thro+,h a pres+ed ,rant. The tenan"y of a peranent nat+re in the sense that it "o+$d not )e re(o:ed so $on, as the p$aintiff paid rent in "ash or :ind& ay )e inferred fro (ario+s ters and "onditions of a $ease. The ere fa"t that a +nifor fi-ed rent had )een paid for a $on, tie or the fa"t that the $essees had )een in possession of the $and for a $on, tie a:in, "onstr+"tion of $and at their o%n "ost %o+$d not raise a pres+ption that the tenan"ies %ere of a peranent "hara"ter. In e(ery "ase an inferen"e of peranen"y of tenan"y is a ;+estion of fa"t dependin, +pon the fa"ts of ea"h parti"+$ar "ase. The on+s of pro(in, that a tenan"y is peranent is on the tenant settin, +p s+"h a "ase. a4 Tenan"y < at < %i$$. A $ease %hi"h is si$ent as to d+ration of ter %o+$d )e (oid as a $ease& )+t if the $essee has ta:en possession& a tenan"y5at5%i$$ is "reated. It arises )y ip$i"ation of $a% in "ases %here a person ta:es possession of the preises %ith the "onsent of the o%ner. It ay a$so arise )y an e-press a,reeent to $et for an indefinite period for "opensation a""r+in, fro day to day. The tenant in s+"h a "ase is not a trespasser and his on$y $ia)i$ity is to pay "opensation for +se and o""+pation. A tenan"y5at5%i$$ is terina)$e )y either party. A deand )y the $and$ord for possession is s+ffi"ient to terinate his tenan"y5at5%i$$. nder !e"tion 1G@ of the Transfer of Property A"t& a $ease "reates ri,ht or an interest in en7oyent of the deised property and a tenant or a s+)5tenant is entit$ed to reain in possession of the deised property +nti$ the $ease is d+$y terinated and e(i"tion ta:es p$a"e in a""ordan"e %ith $a%. >or as"ertainin, %hether a do"+ent "reates a $i"en"e or $ease& the s+)stan"e of the do"+ent +st )e prepared to the for. It is not "orre"t to say that e-"$+si(e possession of a party is irre$e(ant )+t at the sae tie is not "on"$+si(e. The other tests& nae$y intention of the parties and %hether the do"+ent "reates any interest in the property or not are iportant "onsideration. )4 Tenan"y )y s+fferan"e. Another type of a tenan"y ay )e noted here. It is "a$$ed a tenan"y )y s+fferan"e. It a$so
arises )y ip$i"ation of $a% %hen a person %ho has )een in possession +nder a (a$id $ease "ontin+es in possession e(en after the e-piration of the $ease %itho+t the "onsent of the $essor. Th+s& a tenant ho$din, o(er after the e-piration of the ter is a tenant at s+fferan"e. A tenan"y at s+fferan"e is terinated at any tie )y the $and$ord enterin, %itho+t noti"e or deand. onsideration The "onsideration is either prei+ or rent. Prei+ is the pri"e paid or proised to )e paid i a $+p s+. If the "onsideration is prei+& the transa"tion ay either )e +ripesh,i $ease or a +s+fr+"t+ary ort,a,e. In the forer "ase& the prei+ is not ,i(en as a $oan and the re$ationship of a de)tor and a "reditor does not s+)sist %hi$e in $atter transa"tion& it is essentia$$y a $endin, and a )orro%in, transa"tion. Rent is a periodi"a$ payent. B+t the definition of rent ,i(en in this se"tion is %ide eno+,h to in"$+de not on$y oney )+t a$so the de$i(ery of a share of the "rop& of the renderin, of ser(i"e& et". !e"tion 1G@ re"o,nises a$so a $ease of io(a)$e property in "onsideration of a share of "rops. at+re of payent as prei+ or rent.55 !e"tion 1G@ )rin, o+t the distin"tion )et%een a pri"e paid for a transfer of a ri,ht to en7oy the property and the rent to )e paid periodi"a$$y to )e paid periodi"a$$y to the $essor. 9hen the interest of the $essor is parted %ith for a pri"e& the pri"e paid is prei+ or sa$ai. B+t the periodi"a$ payents ade for the "ontin+o+s en7oyent of the )enefits +nder the $ease are in the nat+re of rent. The forer is a "apita$ in"oe and the $atter a re(en+e re"eipt. A,reeent to $ease.55 A do"+ent %here)y the ters of a $ease& are fina$$y fi-ed and it intended to ,i(e the ri,ht of en7oyent to the $essee either at on"e or at a f+t+re date is a $ease. On the other hand& a do"+ent %hi"h on$y )inds the parties& the one person proisin, to ,rant the $ease and the other proisin, to a""ept it& is ere$y an a,reeent to $ease. If the intended $essee enters into possession& he "an& +nder se"tion @#5A& resist the $essors s+it for e7e"tent pro(ided the a,reeent is in %ritin,. !+it )ased on possessory tit$e.55 9here )oth parties re$y on possessory tit$e& it is ne"essary that they sho+$d pro(e effe"ti(e possession o(er the property in order to s+""eed on the )asis of possessory tit$e. Effe"ti(e possession eans a"t+a$ possession or possession thro+,h a tenant %ho +st ha(e paid the rent (o$+ntari$y or +nder a de"ree to the person "$aiin, possessory tit$e. Lease and $i"en"e distin,+ished.55 Lease is a transfer of ri,ht to en7oyent property ade for a "ertain tie in "onsideration of a pri"e paid or proised. nder !e"tion 1G8& the $essee is entit$ed to )e p+t in possession of the property. A $ease is therefore a transfer of an interest in $and. The interest transferred is "a$$ed the $easeho$d interest. The $essor part %ith his ri,ht to en7oy the property d+rin, the ter of the $ease and it fo$$o%s fro it that the $essee ,ets that ri,ht to the e-"$+sion of the $essor. 9hereas !e"tion @2 of the India Easeent A"t defines a $i"ense as a ri,ht to do or "ontin+e to do& in or +pon the io(a)$e property of
the ,rantor& soethin, %hi"h in the a)sen"e of s+"h ri,ht )e +n$a%f+$& and s+"h ri,ht does not ao+nt to an easeent or interest in the property. nder !e"tion @2 of the Easeent A"t if the do"+ent ,i(es on$y a ri,ht to another to "oe on the $and or preises and +se the in soe %ay or the other %hi$e it reains in possession and "ontro$ of the o%ner thereof& it %i$$ )e a $i"en"e. The $e,a$ possession "ontin+es to )e %ith the o%ner of the property )+t the $i"ensee is perission& his o""+pation or +se %o+$d )e +n$a%f+$. It does not "reate in his fa(o+r any estate or interest in the property. There is therefore a "$ear distin"tion )et%een the t%o "on"epts. The di(idin, $ine is "$ear tho+,ht soeties it )e"oes (ery thin. At one tie& it %as tho+,ht that the test of e-"$+si(e possession %as infa$$i)$e and if a person %as ,i(en an e-"$+si(e possession of preises& it %o+$d "on"$+si(e$y esta)$ish that he %as a $essee. B+t there %as a "han,e and the re"ent trend of 7+di"ia$ opinion is ref$e"ted in Errin,ton (. Errin,ton& %here Lord Cennin, after re(ie%in, the "ase $a% on the s+)7e"t s+aries the res+$t of his dis"+ssion as fo$$o%s 'The res+$t of a$$ these "ases is that& a$tho+,h a person %ho is $et into e-"$+si(e possession is prie fa"ie to )e "onsidered a tenant& ne(erthe$ess he %i$$ not )e he$d to do so if the "ir"+stan"es ne,ati(e any intention to "reate a tenan"y.* The !+pree o+rt of India in Asso"iated ote$ of India (. R. . Dapoor& ;+oted %ith appro(a$ the a)o(e o)ser(ations and pro"eeded to $ay do%n the fo$$o%in, propositions 5 14 To as"ertain %hether a do"+ent "reates a $i"ense or a $ease& the s+)stan"e of the do"+ent +st )e preferred to the for6 24 the rea$ test is the intention of the parties < 9hether intended to "reate a $ease& or a $i"ense6 #4 if the do"+ent "reates an interest in the property& it is a $ease& )+t& if it on$y perits another to a:e +se of the property of %hi"h the $e,a$ possession "ontin+es %ith the o%ner& it is a $i"ense& and ?4 if +nder the do"+ent& a party ,ets e-"$+si(e possession of the property& prie fa"ie he is "onsidered to )e a tenant& )+t "ir"+stan"es ay )e esta)$ished %hi"h ne,ati(e the intention to "reate. A $ease is the transfer of a ri,ht to en7oy the preises& %hereas a $i"ense is a pri(i$e,e to do soethin, on the preises %hi"h other%ise %o+$d )e +n$a%f+$. If the a,reeent is in %ritin,& it is a ;+estion of "onstr+"tion of the a,reeent ha(in, re,ard to its ters and& %here its $an,+a,e is a)i,+o+s& ha(in, re,ard to its o)7e"t& and the "ir"+stan"es +nder %hi"h it %as e-e"+ted& %hether the ri,hts of the o""+pier are those of a $essee or a $i"ensee. It %as o)ser(ed )y the !+pree o+rt in M. . $+)%a$s (. >ida +ssain !ahe)& that 55 a4 9hether an a,reeent "reates )et%een the parties the re$ationship of $and$ord and tenant or ere$y that of $i"ensor and $i"ensee& the de"isi(e "onsideration is the intention of the parties. This intention has to )e as"ertained on a "onsideration of a$$ the re$e(ant pro(isions in the a,reeent. )4 E-"$+si(e possession is not "on"$+si(e e(iden"e of a $ease. If& ho%e(er& e-"$+si(e possession to %hi"h a person is entit$ed +nder an a,reeent %ith a $and$ord& is "o+p$ed %ith an interest in the property& the a,reeent %o+$d )e "onstr+"ted not a ere $i"ense )+t as a $ease. Cistin"tion !+arised.55
A res+e of %hat has )een e-p$ained in respe"t of the distin"tion )et%een a $ease and a $i"ense is that there $ies the fo$$o%in, points of distin"tion )et%een the t%o5 14 A $ease is a transfer of an interest in $and %hereas the $i"ense does not "reate any interest in $and in fa(o+r of the $i"ensee. 24 A $essee "an s+e a trespasser in his o%n nae )+t a $i"ensee "annot do so. #4 A $ease "an )e assi,ned& )+t a $i"ense "annot )e assi,ned. ?4 A $ease "annot )e re(o:ed +nti$ the ter & )+t a $i"ense& s+)7e"t to "ertain e-"eptions& "an )e re(o:ed. Lease or $i"ense& its deterination.55 The intention of the parties +st )e ,athered fro the ters of the a,reeent e-ained in the $i,ht of the s+rro+ndin, "ir"+stan"es. The des"ription ,i(en )y the parties ay )e e(iden"e of the intention )+t is not de"isi(e. Mere +se of the %ords appropriate to the "reation of a $ease %i$$ not pre"$+de and a,reeent fro operatin, as a $i"ense. A re"ita$ that the a,reeent does not "reate a tenan"y is a$so not de"isi(e. The "r+"ia$ test in ea"h "ase is %hether the instr+ent is intended to "reate or not to "reate an interest in the property& the s+)7e"t5atter of the a,reeent. If it is in fa"t intended to "reate an interest in the property& it is a $ease& if it does not& it is a $i"ense. A $essor ay after the period for %hi"h $ease is ,ranted rene% the sae or res+e& that is 5re5enter. B+t if o+t of the t%o& that is re5entry or res+ption& the t%o di(er,ent "o+rses& he "hooses to ,rant fresh $ease or at $east "reates that ipression )y his "ond+"t spread o(er $on, tie& it res+$ts in a)andonent.
Ce"ree of e(i"tion passes55 Ce"ree "o+$d )e a(oided on$y )y ,ettin, a fresh $ease.55 The ri,ht to e-"$+si(e possession is the )asi" feat+re of the tenan"y "reated )y $ease. Li"en"ees possession& on the "ontrary& is on$y perissi)$e and he "an )e thro%n o+t at any tie. e does not a$so ,et the ri,ht to e-"$+si(e possession. !in"e the de"ree for e(i"tion %as passed a,ainst the respondent in his "apa"ity as tenant of the preises in ;+estion& he "o+$d ha(e& if at a$$& a(oided that de"ree on$y )y ,ettin, a fresh $ease of the preises and not a $i"ense %hi"h "annot ha(e the effe"t of a(oidin, the de"ree or s+persedin, or s+)stit+tin, the de"ree. The intention of the parties "$ear$y %as not to e-tin,+ish the de"ree of e(i"tion )+t to "reate on$y a $i"ense a$$o%in, the respondent to stay in the preises for a %hi$e. Li"ense5"reation of.55 In Cso+as "ase o+rt has indi"ated that for a "onsideration& as to %hether a do"+ent "reates a $i"ense or $ease& the s+)stan"e of the do"+ent +st )e preferred to the for. It is not "orre"t to say that e-"$+si(e possession of a party is irre$e(ant& )+t at the sae tie& it is a$so not "on"$+si(e. The other tests& nae$y& intention of the parties and %hether the do"+ent "reates any interest in the property or not& are iportant "onsiderations. A$tho+,h& nora$$y in a "ase of $i"ense& ;+estion of s+)$ettin, does not arise& )+t sip$y for ,i(in, s+"h "$a+se in an a,reeent. An a,reeent "annot )e he$d to )e an a,reeent for $ease. The pith and s+)stan"e of the do"+ent are re;+ired to )e "onsidered for the p+rpose of findin, o+t the tr+e iport of a do"+ent& nae$y& %hether a do"+ent
"reates a $ease or a $i"ense. The do"+ent "ontainin, the ters and "onditions +nder %hi"h the defendant %as a$$o%ed to r+n the said )+siness and it appears that the said do"+ent is "onsistent %ith the "ase of $i"ense. The ri,ht of the $essee.55 Ri,ht of the $essee in the $eased property s+)sists e(en if the $eased property has )een destroyed )y fire& tepest or f$ood or (io$en"e of an ary or of a o) or other irresisti)$e for"e +n$ess the $ess e-er"ises is option that on happenin, of s+"h e(ents the $ease has )een rendered (oid. By ne"essary "oro$$ary& therefore& if the $eased property is destroyed %ho$$y )y fire& the $ease "annot )e said to )e e-tin,+ished& nor "an it )e said that $essees ri,ht in the $eased property has "oe to an end +n$ess the $essee e-er"ises s+"h option. E(i"tion !+it55 !e"tion 1G@ T.P. A"t !e"tion @2 of the Easeent A"t.55 The prin"ip$es on the "onstr+"tion of a do"+ent as to %hether it ao+nts to $ease or $i"en"e %ere $aid do%n )y the Ape- o+rt in Asso"iated ote$s of India Ltd. (. R. . Dapoor& and it is "onsidered ne"essary to re"ord the s+arised propositions $aid do%n )y the Ape- o+rt in the said 7+d,ent. The fo$$o%in, propositions ay& therefore& )e ta:en as %e$$5sett$ed 14 To as"ertain %hether a do"+ent "reates a $i"en"e or $ease& the s+)stan"e of the do"+ent +st )e preferred to the for6 24 the rea$ test is the intention of the parties %hether they intended to "reate a $ease or $i"en"e 6 #4 if the do"+ent "reates an interest in the property& it is a $ease6 )+t& if it on$y perits another to a:e +se of the property& of %hi"h the $e,a$ possession "ontin+es %ith the o%ner& it is a $i"en"e6 and ?4 if +nder the do"+ent a party ,ets e-"$+si(e possession of the property& prie fa"ie he is "onsidered to )e a tenant6 )+t "ir"+stan"es ay )e esta)$ished %hi"h ne,ati(e the intention to "reate a $ease. The Ape- o+rt in the said 7+d,ent has f+rther pointed o+t the ar:ed distin"tion )et%een $ease and $i"en"e as +nder .....!e"tion 1G@ of the Transfer of Property A"t defines a $ease of io(a)$e property as a transfer of a ri,ht to en7oy s+"h property ade for a "ertain tie in "onsideration for a prior paid or proised. nder !e"tion 1G8 of the said A"t& the $ee is entit$ed to )e p+t in possession of the property. A $ease is& therefore& a transfer of an interest in $and. The interest transferred is "a$$ed the $easeho$d interest. The $essor parts %ith his ri,ht to en7oy the property d+rin, the ter of the $ease& and if fo$$o%s fro it that the $essee ,ets that ri,ht to the e-"$+sion of the $essor. 9hereas !e"tion @2 of the Indian Easeents A"t defines a $i"en"e th+s 9here one person ,rants to another& or to a definite n+)er of other persons& a ri,ht to do or "ontin+e to do& in or +pon the io(a)$e property of the ,rant or& soethin, %hi"h %o+$d in the a)sen"e of s+"h ri,ht& )e +n$a%f+$& and s+"h ri,ht does not ao+nt to an easeent or an interest in the property& the ri,ht is "a$$ed a $i"en"e. nder the aforesaid se"tion& if a do"+ent ,i(es on$y a ri,ht to +se the property in a parti"+$ar %ay or +nder "ertain ters %hi$e it reains in possession and "ontro$ of the o%ner thereof& it %i$$ )e a $i"en"e. The $e,a$ possession& therefore& "ontin+es to )e %ith the o%ner of the property& )+t the $i"ensee is peritted to a:e +se of the preises for a parti"+$ar