2 VIJAY LAW SERIES CONTENTS

Transcription

1 PROPERTY LAW 1

2 2 VIJAY LAW SERIES CONTENTS I. INDEX i-iii II SHORT NOTES INDEX iv-v III ESSAY QUESTIONS AND ANSWERS 1-94 IV SHORT NOTES V DICTIONARY VI IMPORTANT QUESTIONS 117 VII REFERENCE BOOKS Introduction 1 2 Immovable property 3 3 Attestation 5 4 Actionable claim 6 5 Notice 7 6 Definition of Transfer of property 9 7 What property cannot be transferred 10 8 Oral transfers 11 9 Condition restraining alienation/rule against inalienability Condition restraining enjoyment/repugnant conditions Transfer for the benefit of unborn person Rule against perpetuity Direction for accumulation/rule against accumulatin Vented interest and contingent interest Condition precedent and condition subsequent Rule of acceleration Doctrine of election Apportionment Covenants 29

3 PROPERTY LAW 3 20 Ostensible owner/doctrine of holding out Doctrine of feeding the grant by estoppel Priority of rights Improvements made by bona fide holders under defective titles Doctrine of lis pendence Fraudulent transfers Doctrine of part performance Specific Transfers Sale Definition and essentials of sale Rights and liabilities of buyer and seller Unpaid vendor s lien Caveat emptor Mortgage Definiton and essentials of mortgage-its various forms Rights and liabilities of mortgagor Rights and liabilities of mortgagee Doctrone of redemption Clog on Redemption Partial Redemption Doctrine of consolidation Right to Foreclosure or Sale Substituted Security Redeem up-foreclose down Marshalling and contribution/marshalling securities Contribution Subrogation/Legal subrogation/conventional subrogation Lease Definition and essentials of lease Rights and liabilities of lessor and lessee Distinction between lease and licence Determination of lease/forfeiture of lease Exchange of properties Gift 81 Law of Easement 59 The Indian Easement Act, Definition of easement/kinds of easements 86&87

4 4 VIJAY LAW SERIES Definition of Transfer of Property Section 5 D EFINITION OF TRANSFER: Transfer is a process or an act by which something is made over to another. Transferor must convey a right to the transferee. Transfer is also known as alienation. The transfer need not be absolute. There may be a transfer of limited interest. e.g. sale, gift and exchange are the examples of absolute transfers, but lease and mortgage are the examples of limited transfers. The fundamental rule of transfer is that a transfer must be made in the way prescribe by the Act. The transfer governed by the Act must be reduced in writing and if necessary it must be registered under the provisions of the Indian Registration Act, 1908 and stamp duty must be paid in accordance with the provisions of the Indian Stamp Act, The transaction, which does not come under the purview of the Act, may be done orally and registration is also not necessary. Transfer of property is defined under Section 5 of the Act. Transfer inter vivos: This Act deals with transfers inter vivos. It means it deals with the transfers between living persons only. According to Section 5 living persons includes a company or association or body of individuals, whether incorporated or not. In Raghubar Singh v. Jai Indra Bahadur Singh IA 228 it was held that a Court is not a living person within the meaning of Section 5 of the Act. Hence the transfers made by Court are not governed by this Act. In Ashrafi Devi v. Prem Chand AIR 1971 All 457 the Court held though an idol is not a living person, it is a juristic person and capable of holding property. Analysis of Section 5: 1. There must be transfer between living persons only 2. There may be a transfer of property by a person to himself

5 PROPERTY LAW 5 3. The transfer includes sale, mortgage, gift, lease and exchange 4. There may be transfer of absolute or limited interest 5. The Transfer may be made at present or future 6. The property must be in existence 7. The term living person includes non-natural persons too 8. The Act permits joint transfer and joint ownership 9. The transferor must convey a right to the transferee What properties may be transferred? The transferor need not own property so transferred. According to Section 5 of the Act, the following properties may be transferred. 1. Tangible material things. e.g. land, house, car etc 2. Rights over material things.e.g. right to enjoy, right to sell etc 3. Rights which over non-material things. e.g. copy right etc. What are not transfers? Conveying of the property involves the creation of new title or interest in the transferee. If a new title or interest is not conveyed there shall be no transfer. Therefore, according to Sec 5 of the Act, the following instances are not transfers. 1. A surrender is not a transfer 2. A charge on the property 3. A relinquishment in favour of a coparcener 4. A family arrangement or in a settlement of doubtful claims 5. A partition in a joint Hindu family 6. An abandonment of a claim to property

6 6 VIJAY LAW SERIES Shortnotes Index Absolute restraint 97 Actionable Claim 97 Actual or Express notice 97 Affirmative/positive covenants 97 Anomalous mortgage 97 Apportionment 97 Attachments 98 Attestation 98 Binami transactions 98 Burden of proof 98 Caveat emptor 98 Clog on Redemption 99 Condition precedent 99 Condition restraining alienation 99 Condition restraining enjoyment 99 Condition subsequent 99 Consent 100 Consideration 100 Consolidation 100 Constructive or implied notice 100 Contract of sale 100 Contribution.Doct. of 101 Conventional subrogation 101 Covenant 101 Defects in the title 101 Death bed gift 101 Doctrine of acquiescence 101 Doctrine of Cypress 102 Doctrine of Election 102 Doctrine of Lis Pendence 102 Doctrine of Part Performance 102 Donatio mortis causa 103 Easement 103 English mortgage 103 Estoppel 103 Fixtures 103 Fraudulent transfers 103 Immovable property 103 Lease 104 Legal subrogation 104 Licence 104 Marshalling 105 Mortgage 105 Mortgage by conditional sale 105 Notice 105 Ostensible owner 106 Partial foreclosure or sale 106 Partial Redemption 106 Partial restraint 106 Perpetuity period 107 Positive,Negative Easements 107 Prescription 107 Priority of Rights 107 Profits-a-pendre 108 Redeem Up, foreclose down 108 Right of Redemption 108 Right to Foreclosure or Sale 109 Rule against accumulation 109 Rule against Double Possibility 109 Rule against perpetuity 109 Rule of apportionment by time 110 Sale 110 Simple mortgage 110 Spes successionis 110 Subrogation 110 Substituted Security 111 Transfer 111 Transfer inter vivos 111 Transfer of Property Act 111 Unpaid Vendor s Lien 112 Usufructuary mortgage 112 Vested and contingent interest 112

7 PROPERTY LAW 7 Shortnotes Absolute restraint: If a condition takes away the right to transfer substan tially, it is called absolute restraint. A condition totally restraining alienation is void. e.g. A transferred a house to B with a condition that if B sold it, he must sell it to C only, and nobody else. Here there is a chance to sell the house only to C, but not to anybody in the world. Hence this is absolute restraint. Actionable Claim : a beneficial claim, which can be recovered only by an action in a Civil Court, is called actionable claim. In English law it is known as chose in action or thing in action. According to Section 3 of the Transfer of Property Act, 1882 the following are actionable claims: An unsecured debt any beneficial interest in movables not in possession of the claimant, a claim which the Civil Court recognise as affording grounds for relief Actual or Express notice : Bringing the knowledge of a fact directly and personally to the party is called actual notice. It is a kind of notice whereby a person acquires actual knowledge of the fact. Affirmative or positive covenants: Covenants, which imposes an obligation for the performance of an act is called affirmative, or positive covenant. They are collateral. They bind only the parties to the covenant and not third parties. They are not annexed to the land. They never run with the land either in law or equity. They run with persons. The assignees of the land are not liable to comply the terms of covenant. Anomalous mortgage: Section 58(g): A mortgage which is not a simple mortgage, mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds, within the meaning of this section is called anomalous mortgage. It may be combination of two or more forms of specific categories of mortgages. It does not fall under any of the five classes mentioned under Section 58. e.g. a simple mortgage usufructuary. This kind of anomalous mortgage is a combination of a simple mortgage and a usufructuary mortgage. Apportionment: means sharing or division of a common fund between two or more claimants. When property is transferred the transferee becomes entitled to get all its incidental benefits, produce or income. Some properties give periodical income such as rents, annuities, dividends and other periodical payments. In such case the question of apportionment of

8 8 VIJAY LAW SERIES Dictionary Abandonment:rejection, neglect Absolute estate: definite property Absolute interest: perfect advantage Absolute restraint:perfect limitation Absolute right: perfect claim Absolute: perfect, final Absolutely: unconditionally Abstains: refrains Acceleration: increasing speed Accruing: improving Accumulate: collect in one place Accumulation: additional increase Acknowledgement: recognition Actionable claim: beneficial right Affirmative: positive Alienate: transfer Alienation: transferring Allowance: payment Amend: alter, modify Annexation: uniting Annexed: take possession of Antagonistic: aggressive, hostile Apparent: clear, obvious Apportionment: distribution Approbate: approve, sanction Assign: allocate, appoint Assignees: allocatees Attachment: accessory, addition Attestation: verification Bare chance: marginal possibility Basis: foundation, source Beneficial interest: useful benefit Bequest: give, gift Binami transactions: fake deals Binami transfers: conveyances Caveat emptor: let buyer beware Ceases: ends, stops Certifying: authorising officially Claimants: applicants Clog: block Code: set of rules or law Complied with: followed perfectly Comply: follow, abide by Comprehensive: including all Conclusive: decisive Conferment: an act of granting Conflict: clash, fight Conforming: be in line with Consideration:something in return Considered: regarded Contemplate: look at thoughtfully Contingency: a possible event Contingent: uncertain to occur Contrary to law: against law Contravene: go against rules Convey: pass on Conveyance: transfer Conveyed: transferred Covenant: agreement Coverture: married woman Creditor: money lender Debt: loan, financial liability Debtor: borrower Decree: legally binding command Devised: give property by will Disposition: getting rid of Distinction: differences Donor: person who makes gift Ejected: expel from a place Encumbrances: burdens Engagement: involvement Entitled: give the right to Equitable principles: just rules Equity of redemption: act of

9 PROPERTY LAW 9 Reference Books Author Title, Edition, Publisher and Place Jain.J.D Maheswara Swamy.N Mulla Narayana Justice P.S Sarathy.V.P Shukla S.N Singh.A Sinha.R.K Subbarao Tewari. H.N Easement Act 3rd Edition Allahabad Agency Law Relating to Transfer of Property 1st Edition 2008 Asia Law House, Hyderabad. Transfer of Property Act 1999 Universal, Delhi Law of Easements and Licences 5th Edition 2004 Asia Law House Hyderabad Transfer of Property 1995 Eastern,Lucknow Tranfer of Property Act 4th Edition Allahabad Agency Text Book on The Transfer of Property Act 5th Edition Central Law Agency The Transfer of Property Act Ninth Edition, 2006 Central Law Agency, Allahabad Transfer of Property Act 1994 Madras. Tranfer of Property Act 2nd Edition Allahabad Agency