Property Law Notes LLB pdf PDF

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Sections 1, 3, 5, 6, 7, 8, 10, 13, 14, 15,18, 19, 20, 21, 23, 25, 26, 27, 28, 29, 31, 35, 36, 37, 38, 39, 41, 42, 43, 48, 53, 53A, 54, 55, 56, 58, 60,62, 67, 68, 69, 69A, 78, 81, 100, 105, 106, 107, 108, 109, 110, 122, 137 of The Transfer of Property Act, 1882. . Transfer by act of parties, vested and contingent interest, election, clog on, right to foreclosure, mortgage, sale, charge, lease and gift. PROPERTY LAW NOTES AND CASES Chapter 1: What is immovable property? We know that property is the total wealth of a person. It may include land, buildings, mortgage rights, debts owed to him, insurance money due, cheques received, cash, etc. The Transfer of Property Act, 1882, defines immovable property as that which does not include standing timber, growing crops and grass. This is a very open-ended definition though, so we must look at the definition furnished by the General Clauses Act, 1897, wherein it is mentioned that immovable property includes – a) land, b) benefits arising out of land, c) things attached to the earth, or d) permanently fastened to anything attached to the earth. Also, the Registration Act defines immovable property as land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries, or any other benefits arising out of land and things attached to the earth, but not standing timber, growing crops or grass. The Sale of Goods Act, which deals with the sale of movable property, says that movable property, or goods, includes any property other than actionable claims and money. This is why transfer of any actionable claim is dealt with in the TOPA. CASE: Ananda Behera v. State of Orissa The dispute was about fishing rights in the Chilka Lake, which was part of an estate owned by the Rajah of Parikud. By the Orissa Estates Abolition Act, the estate became vested in the State of Orissa. The petitioner had obtained from the previous proprietor the right to fish in the lake, long before the property became vested in the state. The State refused to recognize these licenses. The petitioner claimed that the transaction was based on the sale of future goods, and as fish was movable property, it should not be covered under the act that abolished the estates. There can be no doubt that the lake is immovable property. Therefore, the state, in whom the right to the lake is vested, can bar access to the lake for anyone else. The right the petitioner had was to catch and carry away fish from the lake. Now, this amounts to a benefit arising out of land, and hence, should be covered under immovable property. Also, fish is not standing timber, growing crop, or grass! If it was a mere sale of goods, there should be an instrument to prove it, that is, a written and registered receipt. The sale in this case was oral. The case is different from Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh, where it was held that the right to pluck Tendu leaves from trees was not under the purview of immovable property, as it is under the definition of a growing crop. Also, the state was not a part of the contract between the Rajah and the petitioner, so the state cannot be asked for the money, nor can the Rajah be asked to compensate, as he did not breach the contract either. The suit was dismissed. (Question: What is profit a prendre? Answer: It is a privilege or right to enter another’s land and take away some valuable, natural thing. For example, fish, wood, honey, etc.)

CASE: Shantabai v. State of Bombay The petitioner’s husband was a zamindar, who had executed an unregistered document in favour of the petitioner giving her the right to enter upon certain areas in the zamindari to cut and extract bamboo, fuel wood and teak. Only the lease for forest woods was given to her. Then the Madhya Pradesh Abolition of Proprietary Rights Act was passed and it was held that the petitioner no longer had an enforceable right against the state as far as lumbering work was concerned, as all proprietary land became vested in the state. Justice Bose said in this case that a tree draws subsistence from the soil as long as it stands, and therefore, it is permanently attached to the land and should be treated as immovable property. Standing timber must be in such a state that if cut, it can be used straightaway for building houses, bridges, ships, etc. The rule is that if there is an intention to sever such things as timber from the immovable property for the purpose of selling separately, then such separate items would constitute movable property. A tree can be said to be standing timber if it can be looked at as timber in all practical purposes, even if it is still standing. The deed for the transfer was unregistered, and the price was Rs. 26000, so the petitioner could not execute any right against the state. Appeal dismissed. A debt secured by mortgage of immovable property is itself immovable property.

DIFFERENCE BETWEEN PROPERTY LAW IN INDIA AND ENGLAND Indian law classifies property into movable and immovable. But English law divides property into realty and personalty. Realty was the kind of property which could be regained by a person if he lost possession of it, through a real action. If a person lost possession of land, he had the right to take the land back from the n possessor. In the case of goods, if a person lost possession, he could not recover the goods, but he had the to recover damages. Such action taken was personal action, and hence, goods were termed as pe However, the Indian system is prevalent in the UK now, after the Real Property Amendment Act of 192 FREEHOLD AND LEASEHOLD An estate is said to be freehold when it is vested in a person for a definite period, which is For example, let us say Anubhab owns NUJS for life. Here, we know that as long as the is running, NUJS is vested in him. However, we do not know how long he will s uncertain. On the contrary, a leasehold estate is held by a person for a definite period and c property may be leased to Anubhab for a period of 99 years. Thus, we know t years pass.

Chapter 2: What Property is Transferable? The TOPA deals with transfer of property inter vivos testaments, which operate only after the death of t invalid, as these are not living persons. How transfers in favour of unborn persons, with ce If a holder of property relinquishes his reversioner (person in whom the prop accelerate his succession, they ar is also not a transfer, but only a invalid, that is, you cannot tra In England, after the La estate became banne estates can be con Estate in fee sim nearest heir. Estate tail – lineal de is dead Life p

s not apply to wills or emple or a deity is also n exception, by allowing on 5 of the act. widow gives up her right to the or gives up his right to it) in order to rights in property. Partition of property he property. Transfer of future property is

he creation and conveying of estate tail and life or a term of years were valid. In India, all 4 of these When a fee simple tenant dies, the estate passes to the when on the grantee’s death, the estate goes to the grantee’s are no such heirs, it reverts back to the grantor, or if the grantor nted to the grantee for the period of life of the grantee or of any other s per autre vie. y is transferred for a definite period of time. ed claim is also not a transfer of property. It is recognition of pre-existent rights or distinct title to the parties. nan

d Karappan had two wives, Nani and Ponni. Two of the defendants, the plaintiff’s husband, d father of three more defendants were born of his first wife, in addition to 4 daughters (a very ndeed!), and his second wife had a son and 2 daughters. The family was governed by Mitakshara rappan had executed a registered deed for the partition of the property. Karappan had property worth gave 1300 to each of his male issues. 300 went to his first wife and 1000 to his second wife. 200 went tepmother. Karappan died, and soon after this, Raman, his third son and husband of the plaintiff, followed dy upstairs. Widowed Kalyani sued for partition and separate possession of her 1/4th share in the property. he defendants held that the Karappan and his sons were coparceners of the property, and thus, Karappan had no authority to execute such a deed. They also contended that the 4 sons were coparceners to the property, and succession depended on survival. Since Kalyani’s husband was dead, therefore, she could not get the property. It was ancestral property, and all 4 sons had acquired interests to it by birth. Therefore, Karappan had no right to dispose of by will ancestral property in his hand. A Hindu father cannot impose such a family arrangement

without his sons’ consent after his death. The second wife’s son had already taken his share out and left the family. Therefore, the brothers were tenants-in-common, and the property was allowed to be divided. 1/4th share was granted to the plaintiff. Section 6 of the act talks about what kinds of property may be transferred and what may not be transferred. In section 6(a), we find that the chance of an heir-apparent succeeding to an estate, the chance of a rela obtaining a legacy on the death of his kinsman, or any other such mere possibility, cannot be transferred. things mentioned in clause (a) are known as spes successionis. It means a mere chance, or bare possib different from future interest. In Indian law, the transfer of an expectancy or any agreement to transfer are both void. CASE: Annada Mohan Roy v. Gour Mohan Mullick In this case, the appellant purchased from the respondents their rights expectant, unde upon the termination of his surviving widow’s rights. Later, there was a compromise be respondents as a result of which the respondents got certain properties. The a recovery of the properties from the respondents. The court held that the transfer w was thus forbidden by the TOPA. CASE: Karpagathachi v. Nagarathinathachi 2 co-widows divided their husband’s properties into 2 shares and to giving up her life interest under the partition deed. The responde surviving widow filed a suit against the daughter for recovery of that the arrangement by which her right of survivorship was r said that the interest of each widow was property, and this lawfully transferred. The section might prohibit the tran entire property as the next heir of the husband, but interest together with the incidental right of survivo survivorship can be transferred. (Question: What is reversion? Answer: If Pritam’s death, the land would be return grant a life estate to Pichu and then a nearest heir, say Bulba], then Bulba this case, or a contingent remain

idow ed. The n, alleging a). The court orship could be widow taking the widow of her present The ratio is that right of

am becomes entitled to it. On d reversion. Suppose now, that I ownership and reversion to Pichu’s may either be a vested remainder, as in king CLAT.)

CASE: Amrit Narayan v. G The guardian of a min would be relinquish female’s death, i the female ow relinquish o successi

ith the female holder of property that the properties for the reversioner for possession of property after the est at the time when the agreement was made, because til it vested in him on her death, he had nothing to assign or as a right only after her death, and until then it is mere spes

EA ner or possessor of certain immovable property possesses for the proper t have a dominant heritage), like a right of way over adjoining property (which the right cannot subsist without the dominant heritage, the right of easement his is outlined in clause (c). are prohibited based on public policy. An office is granted to a person on personal can discharge the duties, and hence, be entitled to the salary. Loss of such remuneration f inducement to perform duties and temptation to accept bribes. he TOPA says that any person, who has the capacity to contract and is entitled to transferable authorized to dispose of such property, can transfer such property. In Mohari Bibi v. Dharmodas, it that a conveyance of land by a minor is void, as he is not competent to contract. ion 8 says that a transfer of property to a transferee transfers all the interests which the transferor can pass the property (e.g. rents, profits, benefits arising from it, things attached to earth, etc.), unless a different intention is expressly or impliedly present. CASE: Nathoo Lal v. Durga Prasad

One Ramchandra dies, and gifts his property to his elder daughter Laxmi. On Laxmi’s death, her husband takes possession, claiming right as her heir. He mortgages the property to the appellant, Nathoo Lal. Meanwhile, after 12 years, the son of the other daughter (Bhuri) returns and claims the property, saying his aunt Laxmi only had a limited stake in it. The court observed that unless there are express terms in the deed of gift to indicate the donor who had the absolute interest, a gift in favour of an heir who inherits a limited interest cannot be understood as an absolute interest. Court held that to convey an absolute estate to Hindu female no express power of alienat need be given. The words used in the gift deed were of amplitude enough to convey full ownership to Laxm appellant won the case.

ACTIONABLE CLAIM Actionable claim means a claim to any debt, other than debt secured by mortgage/pledge of or to any beneficial interest in movable property not in the possession of the claimant, w law as affording grounds for relief.

Chapter 3: General Rules regarding Transfer of Property Sections 10-18 contain the first set of rules that must be observed in economics that wealth should be in free circulation so that t hence these sections provide that ordinarily there should not b Section 10 provides that where property is transferred restrains the transferee or any person claiming und property, such condition or limitation is void. There for the benefit of the lessor, and when the propert not have power during her marriage to transfer In almost all property law systems, the alienation of property rather than accum Section 10 must be read with Sec limitation making any interest becoming insolvent or trying applies to a condition in lea A condition which sa transfer it to any m saying that the that too only where Sum baby, h restra wa

nciple m it, and

which absolutely of the interest in where the condition is woman so that she shall erest. scendi, that is, the law favours

is transferred subject to a condition or e benefit of any person, to cease on his n or limitation is void. Nothing in this clause

s interest in a property for 3 years or that he will not straint and is therefore allowed. But if a condition exists his property to anyone but the transferor or his heirs and bsolute restraint, and is void. Assume that a situation arises nt property and agree that if anyone of them does not have a e else, but leave it for the other two. This is a case of absolute ndependently executes an agreement whereby he states that if he ll it to me, the agreement would be valid, because I did not impose any f transfer. Biju himself added the condition. he condition is good only if it is for the benefit of the lessor, for example, if a he lessor to re-enter (take control of the property once it is out of his possession) amages.

of alienation in favour of married women (who are not Hindus, Muslims or Buddhists) will nglish law, a husband and wife were looked at as one legal entity. All the property of the me her husband’s on marriage, and she could not dispose of it without his consent, and nor a will. The Married Women’s Property Act of 1882 changed this. Thenceforth, the transferor has decide to what extent he wants to restrain the woman’s power of alienation. Such provision can be vent a married woman from alienating her property as long as she is under her husband’s protection. on 13 of the act provides that when an interest (the interest must, of course, be subject to a prior interest, you cannot directly transfer to a person unborn) is created for the benefit of a person not yet born on the date of the transfer, the interest will not take effect unless it extends to the entire remaining interest of the transferor in the property. Example – say Johnny transfers a property to Pony, and after Johnny’s death to the eldest son of Pony and after his death to the youngest son, the interest created for the eldest son is void, because the remainder does not go to him but the younger son is also included.

Children in the womb and children adopted by a lady after her husband’s death are deemed to be in existence for this purpose. Again, this section exhibits that law favours free circulation of property. This section foils the De Donis Conditionalibus statute. This is also known as the rule against Double Possibility. The court foils the attempt of owners to create a series of future interests. Difference between English and Indian law – the rule of double possibility is more stringent in Indian la property is vested in X for life, to Y, an unborn child on X’s death, and to Z on Y’s death. In Englis interest created for Z is void, as it requires double possibility – 1) birth of Y before X’s death, and before Z. In Indian law, interests in favour of both Y and Z are void, as the remainder does not go to Y there is a chance of it vesting in Z as well. Under this section, 3 conditions must be complied with for the interest to be valid – person must be preceded by a prior interest in favour of a living person, 2) the existence when the prior interest comes to an end, and 3) the interest must be the of the transferor, a life interest will not do, must be an absolute interest. CASE: Ganendramohun Tagore v. Juttendramohun Tagore This was an 1872 case, and the law now stands changed. The def Prosonocoomar Tagore, and the plaintiff was his son. The defend in 1868, and his will provided nothing for his heirless son. Th Christianity. All of the testator’s property was stipulated to go to Juttendramohun for his life, and after his life, to his elde thereafter to the sons of the eldest son. The plain Juttendramohun’s life interest was concerned, and t said that it was an ancestral estate, which the tes dismissed the plaint. Sreemutty Soorjemoney person must be in existence to take under a w Court held that Juttendromohun had a lif plaintiff as the testator’s heir-at-law. Section 14 enshrines the rule aga effect after the lifetime of one or shall be in existence at the ex Confused? Me too… Let’s e Suppose a grant is ma beneficiary must be he is a major. In concerned wh death. Rea CASE T

one ar died nverted to was granted stator’s life, and save as far as e property. He also y. The High Court had English law says that a nd the property passes to the

y cannot be transferred if it is to take fer, and the minority of some person who est is to belong on attainment of adulthood.

to A’s eldest son 3 years after A’s death. Here, the ever, his enjoyment of the property can be delayed till od of 21 years is permitted after the death of the person d beneficiary may be major on the date of the first one’s s, page 57. ingha

anted a registered lease in favour of the defendant-appellant for the conditions of the lease was that the lessor would have the right of re-entry uch time the lessee would have to vacate the property, being entitled to the s he may have made. The instrument said that the defendant and his heirs would aintiff wanted it back for creation of a hat. The appellants’ counsel contended that given to the lessor to determine the lease and take possession of the leasehold land the parties and offended the rule against perpetuities. However, it was held in Rama at a clause entitling a lessor to terminate the lease at anytime which is described as ich is to be enjoyed from generation to generation does not offend the rule against is case, it was merely a personal covenant and not one which created an interest in land, and ffence to the rule. It was also contended that the covenant was for relinquishment by the lessee to nd not the lessor’s heirs. This contention was baseless, as the deed stated otherwise. So, the appeal ssed. pter 7: Equitable Rules Wh...