Transfer of property law and Easement.pptx

Transfer of Property and Easement Law which help to LLB, BA-LLB,BBA-LLB, BCOM-LLB and other students for understand the Property Transfer Law

1. Transfer of Property and easement Laws By Bhriguraj Mourya Assistant Professor College of Law and Legal Studies Teerthanker Mahaveer University, Moradabad

2. Introduction of Transfer of Property Law

3. Historical Aspect of TP Law Ancient India-there was various types and method of transfer of property, no uniform and written law Medieval India-Hindu law and Muslim law but not uniform in whole India British India- Before 1882-English Law and equity After 1882-by transfer of Property law, Indian Contract Act, 1872 and Easement Act,1882

4. History of Transfer of Property Act, 1882 First Bill was Draft by Indian Law Commission constituted by Duke of Argy -II in 1870. The Drafted by Charles Turner(CJ of Madras) After facing various times amendment due to local government it reached for adoption in 1882 and adopted on 17 th Feb. 1882 Enforced from 1 July 1882

5. Object of the act This Act applies only to transfers by living persons This Act mainly deals with the transfer of immovable properties General principles of transfer does not affect transfer by Muslims Act has not only defined the existing rules of transfers but also amended and modified some of them This Act not cover the testamentary and intestate transfers This Act was not made applicable to the whole of India in the first instance. This Act not cover the all types of transfer of property

6. Out Lines of TP Act, 1882

7. Unit I Meaning and Definition of Property, Movable and Immovable Property, Notice Attestation Actionable Claim

8. Meaning of property Property is any Physical and virtual entity that is owned by an individual of jointly by a group of persons. Right relating to property To Control To take To transfer To exclude others

9. Definition of Property by salmond The term property, observed that the term might be understood in one of the three senses mentioned below: The term property includes all the legal rights of a person. That is to say that it includes complete ownership of a man on material as well as incorporeal things. The term includes not a man’s personal rights, but only his proprietary rights. The term includes the rights of ownership in material things such as building etc

10. Definition of Property by bentham “ The term property includes ownership of material objects alone. He has, in a way, interpreted the term in a narrow sense. According to Austin, Property denotes the greatest right of enjoyment known to the law, including servitudes. The Property includes both proprietaries as well as the personal rights of a man”

11. Definition of Property Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as: “ Property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property ”.

12. Definition of Property Section 2 (11) of the Sale of Good Act, 1930 defines property as: “ Property means the general property in goods, and not merely a special property” .

13. Definition of Property by supreme court R.C. Cooper vs. Union of India AIR 1970 SC 564 , “ The term property includes both corporeal things such as land, furniture and incorporeal things such as copyrights and patents .”

14. Kinds of Property Movable Property Definition in Law and Immovable Property Corporal and Incorporeal Property Tangible and Intangible Property Public and Private Jura in Re Propria and Jura in Re Aliean

15. Definition of immovable Property Section 3 of The Transfer of Property Act, 1882 defines property as: “ Immovable property does not include standing timber, growing crops or grass ” .

16. Definition of immovable Property The Registration Act, 1908 defines “immovable property” as follows:— “ Immovable property shall include land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land or things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops or grass ”.  

17. Definition of immovable Property In Case of Sukrey Kurdeppa v. Nagireddi (6 Mad. HRC 71) By Justice Holloway;- “ Immovability may be defined to be capacity in a thing of suffering alternation in the relation of place; Immovability is incapacity for such alteration. If, however, things cannot change it place without injury to the quality, it is immovable .”

18. Definition of immovable Property Section 3(25) of the General Clauses Act, 1897 defines the term “immovable property” as follows: “Immovable property shall include land, benefit to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.”

19. 1. Land A determinate portion of the earth’s surface. Column of space above the surface. The ground beneath the surface. All objects either on or under the surface of land in their natural state, for example, minerals. Land also includes lakes, rivers and pond which are land covered by water. All objects placed by human agency either on or under the surface of land with the intention of permanent annexation .

20. 2. Benefits Arising Out of Land Right to collect lac, Leaves, fruits and other things from trees, Right to collect revenue from agricultural land, right to take out minerals, Right to collect fish from ponds and river, Right to collect debt secured by mortgage of immovable property, Right to collect rent from tenanted property are all benefits arising out of land others .

21. 3. T hings Attached to the Earth Section 3 of the Transfer of Property Act, 1882 says that “attached to the earth” means— Rooted in the earth, as in the case of trees and shrubs; Embedded in the earth, as in the case of wall or buildings; or Attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached .

22. Test of Fixture Purpose theory Injury theory Mode of Annexation

23. Purpose theory Purpose of Annexation of property in land Wake v. Hall (1883)8 AC. “ It is I think impossible to hold that the amount of disturbance is so great as to amount to a destruction of the land, or to show that the property in the material must have been intended to be irrevocably annexed to the land ” --Justice Blackburn

24. Injury theory Sukrey Kurdeppa v. Nagireddi (6 Mad. HRC 71) By “ Immovability may be defined to be capacity in a thing of suffering alternation in the relation of place; Immovability is incapacity for such alteration. If, however, things cannot change it place without injury to the quality, it is immovable .” -- Justice Holloway

25. Mode of Annexation Holland v. Hodgson (1872) LR 7 CP 328 “The true rule is that articles that are not otherwise attached to land than by their own weight are not be considered part of the land unless it is shown that they were intended to be part of the land. On the contrary, an article which is affixed to the land even slightly is to be considered as part of the land unless it is shown that it was intended to continue as chattel, the onus lying on those who contend that it is a chattel.” -Lord Blackburn

26. Actionable Claim

27. Definition S.3 of The TP Act, 1882 “Actionable claim’ means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing conditional or contingent:”

28. Any debt other than- Secured by mortgage or pledge Secured by hypothecation Any Beneficial interest Not in possession-actual or constructive Which the civil court recognise as affording ground of relief Such beneficial interest be existent, accruing, conditional.

29. Notice

30. Definition of Notice S.3 “A person is said to have notice of a fact when he actually knows that fact or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would known it”

31. Kinds of Notice Actual Notice Constructive notice

32. Actual Notice Actual notice must be a definite information, given by a person interested in the thing in respect of which the information is given.

33. Essential of Actual Notice Definite knowledge Made by definite person himself Such knowledge should obtained in same transaction

34. 2. Constructive Notice A person has constructive notice of all the facts of which he would have acquired actual notice had he made those inquiries which he ought reasonably to have made

35. This legal presumption of constructive Notice Wilful abstention from enquiry or search Gross negligence Registration of instrument Actual possession Notice to agent

36. Transfer of Property Section ;- 5 to 9

37. Definition of Transfer of Property S.5 “Transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act”

38. Essential of Transfer of Property An act of conveyance. The act must by a living persons. To an other living person To more other living persons To himself To himself and one or more other living persons act of transfer of the existing property. Transfer take place in present or future.

39. Essential of valid transfer Transferable property (s.6) Competency of Parties (s.7) Lawful object of transfer (s.6) Transfer in manner and in form required by this Act(s.9) General rule of contract Act shall be apply.(s.4)

40. Transferable property (S.6) All property Can be Transfer except ……………….

41. Property Can not transfer Spes successionis Right of re-entry Easement Restrictive Interest Right to future maintenance Mere right to sue Public office, salaries and pension For unlawful consideration and object Interest of farmers, tenants and lessee

42. Spes successionis s. 6(a ) Chance of succession Legacy

43. Persons competent to transfer S.7 Must be competent to contract, Must have title to the property or authority to dispose of transferable property

44. Persons Competent to contract who is of the age of majority according to the law to which he is subject, who is of sound mind, and is not disqualified from contracting by any law to which he is subject

45. Persons Authorized to Dispose of Property Karta of Hindu joint family, a guardian, a trustee, an executor, Agent administrator, etc

46. Operation of transfer s.8 “Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.”

47. land, the easements annexed thereto, the rents and profits thereof accruing after the transfer all things attached to the earth

48. Machinery The machinery, its movable parts will be its incidents Where machinery is attached to the earth, it is transferred along with the land transferred. The incidents of machinery include all the movable parts of the machinery like nut, bolts, etc

49. Debt Where the property to be transferred is a debt or other actionable claims, those securities will be legal incidents which are only for the debt transferred to the transferee

50. House Easements annexed to it, Its rent accruing after the transfer, Locks, keys, bars, doors, windows and all other things provided with it for permanent use

51. Mode of transfer s.9 Oral or by Delivery of possession Written or (Registered) instrument

52. Delivery of Possession Sale -movable property or immovable property valuing less than rupees one hundred. Lease - Month to month Mortgage - Mortgage by deposit of title-deeds Exchange - immovable property valuing less than rupees one hundred Gift - Movable propert y.

53. By only Registered instrument Sale- Immovable property exceeding rupees one hundred and other intangible property of any value. Mortgage- Simple mortgage (of any amount) and All other mortgage (except the mortgage by deposit of title-deeds) securing sums exceeding rupees one hundred). Lease- from year to year, or for a term exceeding one year or reserving a yearly rent. Exchange- immovable property exceeding one hundred rupees in value. Gift- immovable property. Actionable claims- where only writing is sufficient, registration is not necessary ).

54. Condition Restraining alienation (S.10) 1. transfer of property 2. Condition of limitation 3. Absolute restriction on alienation 4. Such condition and limitation is void 5. Transfer is valid

55. Indian –s.10-35 Valid Transfer +Valid Condition= transfer is Valid Invalid Transfer + valid Condition= invalid transfer valid Transfer + invalid Condition = transfer is valid but condition is void

56. Restriction Repugnant to Interest Created (S. 11) The absolute transfer of interest Restriction on enjoyment of property

57. Exception of s.11 Lease Restriction made by law Accumulation of income For beneficial enjoyment of property

58. Tulk v. Maxhey (1848 ) The condition to keep house in sufficient and proper repair and uncovered with building of vacant piece if land. The court held such condition as void but transfer is valid.

59. Roshan Lal v. Manoj Kumar , AIR 2015 Raj 71 There was a common chowk between the residential houses of the parties. The condition stipulated in the sale deed executed by the previous owner was not to use the common chowk for private purposes. It was held that such restriction could not be enforced against the subsequent owner when no such restriction was mentioned in the sale deed given to him.

60. Condition making interest determinable on insolvency or attempted alienation S.12 The Transferee become insolvent On endeavouring to transfer the property The interest or benefit of person in property will cease.

61. Exception of s.12 Lease

62. Essentials of valid condition Impossible Condition Forbidden by Law Defeat the Provisions of any Law Fraudulent Involves Injury to the Person or Property of Another Immoral or Opposed to Public Policy

63. Kinds of condition Condition Precedent S.26 Condition subsequent S.29 Collateral Condition S.34

64.   Transfer for benefit of unborn person Section 13

65. Section-13 Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property

66. Essentials Transfer of property to an unborn person Transfer the absolute interest Transferor create an prior interest for life-time. Child should be take birth before the cessation of prior interest . Unborn person have vested interest

67. Sopher v Administrator General of Bengal (1944 PC 67 ) If under a bequest in the circumstances mentioned in section 113 there was a possibility of the interest given to the beneficiary being defeated either by a contingency or by a clause of a defeasance; the beneficiary under the later bequest did not receive the interest bequeathed in the same unfettered form as that in which the testator held it and that the bequest to him did not therefore comprise the whole of the remaining interest of testator in the thing bequeathed

68. Rule of Double Possibilities Whitby v Mitchell , (1890) 44 Ch D 85 ) The rule provided that “if an interest in property is given to an unborn person, any remainder to his issue is void, together with all subsequent limitations. Thus, if land was limited to A (a bachelor) for life, remainder to his son for life, remainder to A’s son’s son in fee simple’ the remainder to the grandson would be valid under this rule. However, after the 1925 Act was enacted, this rule was abolished and transfers in favour of unborn persons began to be governed by the rule against perpetuity.

69. Rule against perpetuity S.14

70. Meaning of Perpetuity Perpetuity means continuous or unending transaction. It is tying up property for an indefinite period. Transfers involving generation after generation ( pidhi dar pidhi ) are known as creating perpetuities Father- son - son’s son -son’s son’s son…..continue

71. Essentials There should be a transfer of property. Transfer is to create an interes t in the favour of an unborn person. Interest so created should take effect after the life-time of one or more persons living at the date of such transfer and during the minority of the unborn person . The unborn person should be in existence at the expiration of the interest of the living person .

72. Soundararajan v Natarajan , AIR 1925 PC 244 . In this case the Privy Council held that since at the date of the transfer it is not known whether or not a guardian would be appointed by the court for the minor in future, in such a case for the purposes of section 14 the normal period of minority would be 18 years . Therefore, the vesting may be postponed up to the life of the last person holding property for his life and the minority of 18 years of the ultimate beneficiary.

73. Reason of Rule against perpetuity To maintain social progress To boost industrialisation To facilitate business To avoid family suffering

74. exception of Rule against perpetuity Individual contract Charge Gift for charitable purpose Property purchase by corporation Lease Personal laws Property transfer for public benefit

75. Tagore v. Tagore (1872) 9 Beng . LR 377 The perpetuity was declared void as being an estate so created by this process not allowed by Hindu Law and since then principles of section 14 govern perpetual transfer. .

76. Interest

77. Kinds of interest Vested interest S.19 Contingent interest S. 21

78. Vested interest S.19 An interest therein is created in favour of a person without specifying the time when it is to take effect , or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen , such interest is vested.

79. On the happening of an event Enjoyment Postponed Prior interest Accumulation of income Conditional limitation

80. Test of Vested interest Intention of parties Condition precedent Time of vesting Contrary intention Death of transferee

81. Contingent interest S. 21 An interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event , or if a specified uncertain event shall not happen, or specifying the time when it is to take effect , or in terms specifying that it is to take effect forthwith such person thereby acquires a contingent interest in the property.

82. When contingent interest becomes vested Expiration of time Fulfillment of condition Happen of uncertain event Not happen of uncertain event

83. Difference between vested & contingent interest S. No. Point Vested interest Contingent interest 1 Specific time Without Specific time of transfer With Specific time of transfer 2 Event Certain uncertain 3 Condition Not need to fulfill Need to fulfill 4 Death of transferee not effected the possession Effect the possession 5 Nature Transferable and inheritable Transferable but not inheritable 6 Pass off Transferee’s legal heir Transferor's legal heir 7. Right to enjoyment Immediate right to enjoyment Not have Immediate right to enjoyment

84. Principles of election S.35

85. Meaning of Election Election is choosing process between two rights when it is clear intention (express or implied) that both are not to be enjoyed.

86. Essentials Transfer property which he has no right to transfer , By the same transaction confers any benefit on the owner of the property, Suc h owner must elect either to,- confirm such transfer, or to dissent from it 4. If he dissents from it, he shall relinquish the benefit so conferred, 5. The benefit so relinquished shall revert to the transferor or his representative as if it has not been disposed of.

87. Exception Property on lien Benefit transfer from other instrument

88. Mode of election By acceptance of benefit By enjoyment of property within two year Status quo

89. Time of election According to instrument In case of disability;- i) End of disability ii) Death of donee his legal representative Any time (according to English law )

90. Transfer by Ostensible Owner (Section 41)

91. ostensible owner “An ostensible owner is that person who is not the real owner of the property. But he is one who has all the indicia of ownership without being the real owner.”

92. “ Nemo Dat Quod Non- Habet ” (No one can transfer better title than he himself has.)

93. condition Transfer of immovable property the consent (express or implied) of the persons interested in immovable property, The Transfers for consideration The person is the ostensible owner of such property, the transfer shall not be voidable on the ground that the transferor was not authorized to make it, the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

94. Caira cross v. Lorimer 1860) 3 Macq 837 (829). House of Lord :- “If a man either by words or by conduct, has intimated that he consents to an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he cannot question the legality of the act, he had so sanctioned to the prejudice of those who have so given to his words or to the fair inference to be drawn from his conduct.”

95. Ram Coomar v Macqueen, 18 NR 166. Privy Council : “it is a principle of natural equity, which must be universally applicable that where one man allows another to hold himself out as the owner of an estate and a third person purchases it for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser, by showing either that he had direct notice or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it.”

96. Suraj Ratan Thirani v Azamabad Tea Co Ltd, AIR 1965 SC 295 The Supreme Court held that;- “for the applicability of this section it must be shown that the transferor was the ostensible owner of the property with the consent of the co-sharers where the property is the subject-matter of joint ownership and that the transferee took reasonable care to ascertain that the transferor had power to make transfer ” .  

97. This principle protect the transferee The transferor should be the ostensible owner of the property. He must have held the property with the consent (express or implied) of the real owner. The transferee had purchased the property for value (consideration) and had acted in good faith and with reasonable care. The onus is on the transferee to show that he purchased the property for value and in good faith without the knowledge of the real state of the title.

98. Jayadayal Poddar v. Bibi Hazra , air 1947 sc 171 . Ground of test that transaction is benami or not Source of the purchase-money, i.e., who paid the price of the property? Nature of possession after the purchase, i.e., who had the possession of property? Motive of giving benami colour to the transaction, i.e., why the property was purchased in the name of other person? Relationship between the parties, i.e., whether the ostensible owner and the real owner were friends, strangers or relatives? Conduct of the parties in dealing with the property, i.e., the conduct who used to take care of the property and who had control over the property? Custody of the title deeds, i.e., who had the title-deeds?

99. Benami transaction Benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person. In simple words, the person who purchases the property and pays the price for it, does not purchase the property in his own name but in the name of any other person. The other person whose name is used as the owner of the property is known as benamidar (ostensible owner). In truth, he holds the property on behalf of the real owner because he is not the real owner .

100. Suraj Ratan Thirani v Azamabad Tea Co Ltd, AIR 1965 SC 295 The Supreme Court held that;- “for the applicability of this section it must be shown that the transferor was the ostensible owner of the property with the consent of the co-sharers where the property is the subject-matter of joint ownership and that the transferee took reasonable care to ascertain that the transferor had power to make transfer ” .  

101. LIS PENDENS s.52 Transfer of property during pendency of suit

102. basis Ut Lite Pendente Nihil Innovetur ” “Nothing new should be introduced into a pending litigation.”

103. meaning Transfer of property during the litigation Pedente Lite person bound with decision of court

104. Conditions Pendency of Suit or Proceeding In competent court. The suit or proceeding must not be collusive . A right to immovable property must be directly and specifically in question in that suit or proceeding. The disputed property must be transferred or otherwise dealt with by any party to the suit. The alienation must affect the rights of any other party to the dispute .

105. Pendency of Suit or Proceeding SUIT means any proceeding by one or more persons against some other person or persons in a court of justice PROCEEDING means the form and manner of conducting juridical business before a court of juridical officer. THE PENDENCY the pendency of a suit or proceeding shall be taken to commence from the date of presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction and continue till final.

106. Nagubai v. B Sham Rao . 1956 Venkatarama Aiyar J, was observed by that, “in a collusive proceeding a claim put forward is fictitious, the contest over it is unreal, and the decree passed there is a mere mask having the similitude of a judicial determination and worn by the parties with the objects confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant that the claim made there in is untrue, but the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court.............while in a collusive proceeding the contest is a mere sham, in a fraudulent suit it is real and earnest”.

107. Radhamadhub Holdar v . Monohur Mookerji , 15 IA 97 It is held that s.52 does not apply on involuntary sale or transfer but apply on voluntary t ransfer

108. Bala Ramonadra v Daului . 27 Bom LR 38. it was held that Transferor was not party to the suit of 1914 in her own right and the sale to defendants took place before she was brought on record, therefore, doctrine of lis pendens did not apply. It was further observed by the court that even if Transferor had sold the property after she was brought on record, the result would have been the same because the transfer was made in her own right as owner, and on record she was a representative of her father of Transferor only

109. Sale of Immoveable property Section-54-57

110. Definition of sale S.54 Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised .

111. Essentials of sale Parties Transfer of Ownership For consideration of price Subject matter of transfer

112. Parties Seller Buyer

113. Mode of Sale Tangible property of the value of one hundred rupees and upwards, by a registered instrument . Intangible of the value of any amount only by a registered instrument . Tangible property of a value less than one hundred rupees by a registered instrument or by delivery of the property.

114. Contract for sale A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties

115. RIGHT AND LIABILITY OF SELLER s.55

116. LIABILITY OF SELLER Disclose the material defect Produces all documents of title for examination to buyer Answer the best of his information Convey the deed of sale to buyer Care of property during the agreement and delivery Gives the possession of property Pay all public charges and dues related to property.

117. Rights OF SELLER Right to receive of price (All amount) Rent and profit of property till ownership Right to retain possession of property till non payment of price.

118. LIABILITY OF buyer Disclose all fact which might increase the value of property. To pay all price of property. To bear all loss caused to property after sale. Pay all public charges and dues after transfer of ownership.

119. Rights OF buyer All benefit and rents Right of sale deed Right to possession of property

120. doctrine of marshalling s.56 If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person , the buyer is, in the absence of a contract to the contrary, entitled to have the mortgaged-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.

121. If the owner of two or more properties , mortgages them to one person and then sells one or more of the properties to another person, the buyer is entitled to have the mortgage-debt satisfied out of the property or properties not sold to him (subject to the contrary contract ) so far as the same will extend But this will not prejudice the rights of the mortgagee, or persons claiming under him, or of any other person ,

122. mortgage of Immoveable property Section-58-99

123. Definition of mortgage S.58 A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan , an existing or future debt , or the performance of an engagement which may give rise to a pecuniary liability .

124. Essentials of mortgage Parties Transfer of interest in any immovable property For security of repayment money advanced to be advanced by way of loan, an existing or future debt the performance of any liability Specific property

125. Terms of mortgage Transferor -mortgagor, Transferee -mortgagee; The Secured amount-the mortgage-money. the instrument --mortgage-deed .

126. kinds of mortgage Simple mortgage s. 58(b) Mortgage by conditional sale s. 58(c) Usufructuary mortgage s. 58(d) English mortgage s. 58(e) Mortgage by deposit of title deed. s. 58(f) Anomalous mortgage s. 58(g)

127. 1. Simple mortgage S.58( b) Personal undertaking Without delivering possession, On failing to pay mortgaged property to be sold. No foreclosure Sale on decree of court .

128. 2. Mortgage by conditional sale Ostensible sale Sale become void on payment of loan. On default of payment the sale became absolute. Remedy only foreclosure Registration is compulsory. Two agreement in one document .

129. p. l. bapuswami v. n. pattaya gounder (1966) In this case the court determine that the sale depend on intention of parties and other ground as following; Real value of property The future traction of property regarding property Default of payment of amount.

130. 3. Usufructuary mortgage Delivery of possession of mortgage property Mortgagee retain the possession until repayment of amount. Redemption on payment. No remedy of foreclosure or sale. Registration is compulsory.

131. Raghunath v. competent officer Delhi 1970 Custodian can claim and retain the possession till mortgage debt.

132. Tara Chand v Sagarbai , AIR 2007 SC 2059 Where the mortgagee was authorised to pay himself the amount of mortgage-money from the rents and profits of the property and the money is paid, Where the mortgagee is authorised to pay himself from rents and profits and the terms prescribed for the payment of the mortgage-money has expired and the mortgagor pays the mortgage-money or balance of it to the mortgagee or deposits it in the court.

133. 4. English mortgage Where the mortgagor binds himself to repay the mortgage-money on a certain date. Absolute Transfer of the mortgaged property Delivery of possession. On the condition of re-transfer on payment of the mortgage-money. Remedy is sale not foreclosure

134. 5. Mortgage by deposit of title deed. Transfer of title deed With intention Remedy is sale on decree of court All provision of simple mortgage shall apply Registration is not necessary

135. 6. Anomalous mortgage Which is not all of the above mortgage

136. RIGHT AND LIABILITY OF Mortgager

137. LIABILITY OF Mortgager Not destruct or injured the mortgaged Property s.66 Re payment of debt. S.68 Payment of all public charges and dues regarding mortgage property. S.65(e) To give possession of property to mortgage according to contract. S.58(d) Payment of rent. S.65(e) Payment of interest on prior mortgage S.65(e)

138. Rights OF Mortgager Right to redeem S. 60, 60A, & 61 Right to inspection and production of document s. 60B Right to recover the possession of property s.62 Right of accession in mortgage property s.63 Right of improvement in property s.63A Right to lease the property s.64 & 65A

139. LIABILITY OF Mortgagee Duty of mortgagee in possession of property s.76 Manage the property To collect the rent and profit To pay all public charges and dues To make necessary repairs Not destruct or injured the property Keep proper account To take insurance against injury To keep account about mortgage money 2. Duty of mortgagee not in possession of property.

140. Right of mortgagee Right to foreclosure and sale. S.67 Right to sue for mortgage money s.68 Right to exercise the power of sale s.69 Right to appoint receiver for execution of sale s.69A Right to appropriate accession to mortgage property s.70 Right to get benefit of renewed lease s.71 Right to spent money for preservation of property s.72 Right to take the proceeds of revenue, sale or compensation on acquisition of mortgage property s.73

141. Right of Redeem s.60, s.60A & 61

142. to deliver the mortgage-deed and all documents to deliver possession, to re-transfer the property to the mortgagor or any third person. Redeem of interest of property

143. Once a Mortgage, always a Mortgage In case Nookes & Co. v. Rice Lord Davey interpreted this maxim. A mortgage cannot make irredeemable and if it is make any provision K. Vilasini v. Edwin Preiera 2009. right to redeem is till final decree of sale or foreclose Modh shair khan v. raja seth 1944

144. s.91 right to redeem other then mortgager Prior mortgagee Lessee Charge holder Sub mortgagee Purposer of equity of redeem Donee Any other person who have interest in property Co mortgager

145. Right to foreclose and sale s.67 s.69

146. Right to foreclose Proper institution of suit Extinguishes the mortgager’s right to redeem. Makes mortgagee as absolute owner.

147. Simple Mortgagee simple money decree, File suit for the decree of sale

148. Usufructuary Mortgage He can neither sue for sale nor foreclose the mortgage.

149. Mortgage by Conditional sale The proper remedy is to deprive the mortgagor of the right of redemption Right to foreclose offer default of payment

150. English Mortgage An English mortgagee can file a suit for the sale of the mortgaged property.

151. Mortgage by deposit of title-deeds

152. Anomalous Mortgage Any right can be used

153. Right and duties of Lessee S 108

154. rights of lessee Right to peaceful enjoyment of property To avoid the lease To repair the property To pay such payment which are obligatory on leaser To remove the fixtures made by lessee Benefit of crops and plant on property after termination of lease To assign his interest in the leased property

155. Duties of lessee Duty to disclose any information regarding property Duty to keep and restore the property in good condition Duty to payment of rent Duty to give information about any proceeding on property Reasonable use of property To not erect any permanent structure Duty to restore the property in good condition

156. Termination of lease s.111 By efflux of time On condition On termination of leaser's interest in property On merger On surrender of lease On forfeiture On notice

157. Waiver of forfeiture s.-112 By acceptance By distress for rent By any other act

158. easement Indian Easement Act, 1882

159. Definition of easement S.4 An easement is right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of, to do and continue to do something that land , or to prevent and continue to prevent something being done , in or upon, or in respect of certain other land not his own .

160. Definition by Peacock Easement is a privilege without profit acquired in respect of one tenement by the owner thereo f, where by the owner of the other tenement is restricted in the full enjoyment to the rights thereto to extent of being obliged to suffer, or not to do, something thereon, for the advantage or benefit of the former tenement .

161. Salmond As easement is a legal servitude imposed upon one piece of land for benefit of another piece of land.

162. Dominant heritage The land for the beneficial enjoyment of which the right of easement exists DOMINANT OWNER :- Owner or Occupier of such land is called dominant owner

163. servient heritage The land on which the right of easement exists

164. Nature of Easement Dominant and servient Heritage No easement in grass Dominant and servient Heritage distinct Beneficial Enjoyment Not personal right No right for the servient owner Fractional right. An incorporeal right in rem

165. Kinds of easement Affirmative and negative Continuous and discontinuous s.5 Apparent and non apparent s.5 Permanent and Limited s.6 Subordinate s.9 Accessory s.24 Necessary s.13 Quasi easement s.13 Natural easement s.17 customary

166. Creation of easement By grant By necessity By prescription By operation of law By custom By transfer of dominant heritage

167. References;- Dr Awtar Singh, Transfer of property Laws