2015-12-15 10-09-51 Law of Property Notes Answers

15 DEC 2015, Tue
www.eSaraswati.com
Our Mission ENABLE YOUR SUCCESS
Our Services
A good study environment
24x7 Study Room
allows you to maximize you
24x7 Library
learning efficiency.
Project Management
Exam Prep & Planning
Time Manageme nt
Study Calendar
Career Planning
Online Help Desk
When combined with

effective time management,
high motivation, good reading
and note taking skills, and
systematic test preparation, a
good study environment
serves as a catalyst for
academic success.
WWW.ESARASWATI.COM
EMAIL: INFO@ESARASWATI.COM
TEL : +91 7095 776633
LAW OF PROPERTY
Selected Notes For LLB 3YDC Preparation Osmania University
2010 - 2016 www.eSaraswati.com
www.eSaraswati.com
Our Mission ENABLE YOUR SUCCESS
Our Infrastructure includes 24x7 Library & Study Room(s)
Table of Contents
1
PAPER-II: LAW OF PROPERTY ............................................................................................................... 1
LAW OF PROPERTY SHORT NOTES & ANSWERS ........................................................................... 2
2010 2015 www.eSaraswati.com

email : info@eSaraswati.com | website : www.eSaraswati.com | Ph : +91 7095 776633
PAPER-II: LAW OF PROPERTY

OSMANIA UNIVERSITY LL.B. (3YDC) SYLLABUS SEMESTER-3 THREE-YEAR
DEGREE COURSE
LLB III SEMESTER PAPER-II: LAW OF PROPERTY
SYLLABUS
Unit-I: Meaning and concept of property Kinds of property Transfer of property
Transferable and non-transferable property Who can transfer Operation of transfer
Mode of transfer Conditional transfer Void and unlawful conditions Condition
precedent and condition subsequent Vested and contingent interest Transfer to unborn
person
Unit-II: Doctrine of Election Covenants Transfer by ostensible owner Doctrine of
Feeding the Grant by Estoppels Doctrine of Lis Pen dens Fraudulent Transfer Doctrine
of Part-performance.
Unit-III: Sale- Essential features Mode of Sale Rights and liabilities of parties. Mortgage Kinds of Mortgages - Rights and liabilities of mortgagor and mortgagee Marshalling and
Contribution Charges.
Unit-IV: Lease Essential features Kinds of leases Rights and liabilities of lesser and
lessee Termination of lease forfeiture Exchange Gifts Different types of gifts
Registration of Gifts Transfer of Actionable Claims.
Unit-V: Easements Definition of easement Distinction between Lease and License
Dominant and Servant Tenements. Acquisition of property through testamentary succession
Will Codicil Capacity to execute Will Nature of bequests Executors of Will
Rights and Obligations of Legatees.
Suggested Readings:
1. Mulla : Transfer of Property, Butterworths Publications.
2. Subba Rao GCV: Commentaries on the Transfer of Property Act.
3. Krishna Menon: Law of Property.
4. Upadhya's Common Matrix of Transfer of Property.
2010 2015 www.eSaraswati.com
Page 1 of 25
LAW OF PROPERTY SHORT NOTES & ANSWERS

Year
Short Notes
Sample Answers (Blank - Practice)

The Transfer of Property Act, 1882 (hereinafter, the Act) a civil
legislation related to property transactions taking place throughout
the country.
Spes successionis within the meaning of Section 6 of the Act: The

things referred to in this Sub-section as non-transferable are the
Spes Successionis
chance of an heir succeeding to an estate, the chance of a relation

obtaining a legacy (a gift by will) on the death of a kinsman, and any
other mere possibility of a like nature.
Examples :
Jan/Feb
Interest of reversioner (transfer is a nullity)
2014
Chance of legacy (the bequest of legacy is a mere chance)

Any type of agreement that requires the buyer to either take or
abstain from a specific action. In real estate transactions, restrictive
Restrictive covenant
covenants are binding legal obligations written into the deed of a

property by the seller. These covenants can be either simple or
complex and can levy penalties against buyers who fail to obey them
A personal reason for involvement in an undertaking or situation,
especially an expectation of financial or other gain.
U/S 19. Vested interest.Where, on a transfer of property, an

interest therein is created in favor of a person without specifying the
Vested interest
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, unless a contrary intention appears from the
terms of the transfer. A vested interest is not defeated by the death of
the transferee before he obtains possession.
2010 2015 www.eSaraswati.com Page 2 of 25
Explanation.An intention that an interest shall not be vested is not

to be inferred merely from a provision whereby the enjoyment
thereof is postponed, or whereby a prior interest in the same property
is given or reserved to some other person, or whereby income arising
from the property is directed to be accumulated until the time of
enjoyment arrives, or from a provision that if a particular event shall
happen the interest shall pass to another person.
U/S 100. Charges.Where immoveable property of one person is by

act of parties or operation of law made security for the payment of
money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and all the
provisions hereinbefore contained 1[which apply to a simple
mortgage shall, so far as may be, apply to such charge]. Nothing in
Charge
this section applies to the charge of a trustee on the trust-property for

expenses properly incurred in the execution of his trust, 2[and, save
as otherwise expressly provided by any law for the time being in
force, no charge shall be enforced against any property in the hands
of a person to whom such property has been transferred for
consideration and without notice of the charge].
According to Section 46 of the Sale of Goods Act read with Section
54 of the same Act, an unpaid seller has a lien on the goods for the
price while he is in possession of them, and has a right of re-sale also,
Unpaid seller
that the unpaid seller on the rejection of the offer for delivery had two
options, viz. Section 168 in The Indian Contract Act, 1872
Rights of finder of
goods
168. Right of finder of goods, may sue for specific reward offered.
The finder of goods has no right to sue the owner for compensation
for trouble and expense voluntarily incurred by him to preserve the
goods and to find out the owner; but he may retain the goods against
the owner until he receives such compensation; and where the owner
has offered a specific reward for the return of goods lost, the finder
may sue for such reward, and may retain the goods until he receives
it. The finder of goods has no right to sue the owner for
compensation for trouble and expense voluntarily incurred by him to
preserve the goods and to find out the owner; but he may retain the
goods against the owner until he receives such compensation; and
where the owner has offered a specific reward for the return of goods
lost, the finder may sue for such reward, and may retain the goods
until he receives it."
U/71 Section 71 in The Indian Contract Act, 1872.
Responsibility of finder of goods.A person who finds goods

belonging to another, and takes them into his custody, is subject to
the same responsibility as a bailee
In view of
section 53 of the Indian Easements Act, 1882 read
with section 15(1) of the said TP Act.
Also according to
section 53 of the Indian Easement Act, one could grant a licence in

the circumstances in which and to the extent to which he is entitled to
Licence
transfer his interest in the property effected by the licence. Under

section 15(1) read with section 15(2) of the TP Act, a tenant is not
entitled to create any sub-tenancy or to transfer his interest in the
premises after 21st May, 1959 unless the contract of tenancy
positively allowed him to do so.
A codicil is a testamentary document similar but not necessarily
Codicil
identical to a will. In some jurisdictions, it may serve to amend,

rather than replace, a previously executed will. In others it may serve
as an alternative to a will. In still others there is no recognized
distinction between a codicil and a will.

Immovable property is an immovable object, an item of property that
cannot be moved without destroying or altering it - property that is
fixed to the earth, such as land or a house. In the United States it is
also commercially and legally known as real estate and in Britain as
property.
Immovable Property
Section 3 in The Transfer of Property Act, 1882

U/S 3. Interpretation clause.In this Act, unless there is something
repugnant in the subject or context, immoveable property does
not include standing timber, growing crops or grass; instrument
Aug/Sep
means a non-testamentary instrument;
2013
U/S 26. Fulfilment of condition precedent.Where the terms of a

transfer of property impose a condition to be fulfilled before a person
can take an interest in the property, the condition shall be deemed to
have been fulfilled if it has been substantially complied with.
Condition Precedent
Illustration
(a) A transfers Rs. 5,000 to B on condition that he shall marry with
the consent of C, D and E. E dies. B marries with the consent of C
and D. B is deemed to have fulfilled the condition.
(b) A transfers Rs. 5,000 to B on condition that he shall marry with
the consent of C, D and E. B marries without the consent of C, D and
E, but obtains their consent after the marriage. B has not fulfilled the
condition.
"A perpetuity", as defined by Lewis in his well-known book on
Rule against perpetuity
"Perpetuities" (p. 164), is 'a future limitation, whether executory or

by way of remainder, and of either real or personal property which is
not to vest until after the expiration of,
or will not necessarily
vest
within, the period
fixed and prescribed by law for the
,creation of future estates and interests'.
The rule as formulated
falls within the branch of the law of property and its true object is to
restrain the creation of future conditional interest in property.
The rule against perpetuities is not concerned with contracts
as such or with contractual rights and obligations as such. Thus a
contract to pay money to a person,
his heirs or, legal
representatives upon a future contingency, which may happen beyond

the period prescribed would be perfectly valid (Walsh v. Secretary of
State for India)(1). It is therefore well-established that the rule of
perpetuity concerns rights of property only and does not affect the
making of contracts which do not create rights of property.
Caselaw: Rambaran Prosad vs Ram Mohit Hazra & Ors 6

September, 1966
The term 'HIBA' and Gift are more often employed, but the term
''HIBA'' is only of the kind of transactions which are covered by the
general term 'Gift'. 'HIBA' is confined only to transfer of rights of full
ownership or corpus of any property. Such a transfer by means of
'HIBA' must be immediate and not contingent. It must be
unconditional. Any conditions imposed in respect of corpus would be
void.
Hiba
As a matter of fact the burden of proving with the formalities of law

have been complied with lies on the person claiming to be the Donee.
The burden of proof is then shifted on those who challenge the
validity of gift in the considered opinion of this Court. Really
speaking, the burden of establishing that possession has been
delivered is on the Donee of those who claim under him.
CASELAW: S.G.Mahaboob Basha vs Tmt. Najumunnissa on 30
December, 2009
In the decision Imbichimoideenkutty v. Pathumunni Umma and

others AIR 1989 Kerala 148 it is held thus;
"'HIBA' or gift under Mohammedan Law is a transfer of property

made immediately and without any exchange by one person to
another and accepted by or on behalf of the latter. By virtue of
Section 129 I.P.Act the chapter does not affect any rule of
Mohammedan Law and therefore ''HIBA'' of subject matter of
whatever value need not be registered as required by Section 123. If,
however, it is reduced into writing and relates to immovable property
worth Rs.100/- or more the document is compulsorily registrable
under Section17 of the Registration Act which applies. On the other
hand, 'HIBA'-bil-iwaz in India being a gift for an exchange is in the
nature of a sale and if the subject matter is immovable property worth
Rs.100/- or more, then, it can only be by a registered instrument as
provided under Section54, T.P.Act. Oral gift in discharge of money
owed to the donee being one for consideration amounts to a sale. It is
not pure and simple ''HIBA'' but a 'HIBA'-bil-iwaz and if the property
of value of Rs.100/- or more is involved it can only be by a registered
document."
Sec. 58. Mortgage, mortgagor, mortgagee, mortgage-money
and mortgage-deed defined.
Usufructory Mortgage
(d) Usufructuary mortgage.Where the mortgagor delivers

possession 1[or expressly or by implication binds himself to deliver
possession] of the mortgaged property to the mortgagee, and
authorises him to retain such possession until payment of the
mortgage-money, and to receive the rents and profits accruing from
the property 2[or any part of such rents and profits and to appropriate
the same] in lieu of interest, or in payment of the mortgage-money, or
partly in lieu of interest 3[or] partly in payment of the mortgagemoney, the transaction is called an usufructuary mortgage and the
mortgagee an usufructuary mortgagee.

62. Right of usufructuary mortgagor to recover possession.In the
case of a usufructuary mortgage, the mortgagor has a right to recover
possession of the property 1[together with the mortgage-deed and all
documents relating to the mortgaged property which are in the
possession or power of the mortgagee],
(a) where the mortgagee is authorized to pay himself the mortgagemoney from the rents and profits of the property,when such money
is paid;
(b) where the mortgagee is authorised to pay himself from such rents
and profits 2[or any part thereof a part only of the mortgagemoney],when the term (if any) prescribed for the payment of the
mortgage-money has expired and the mortgagor pays or tenders to
the mortgagee 3[the mortgage-money or the balance thereof] or
deposits it in Court as hereinafter provided.
Hiba
Refer earlier answer.

A Resumable Gift is one which is revocable at any time at the mere
will of the donor. Such a gift is void abinitio.
Section 126 of the transfer of Property Act, 1882 lays down that
Resumable gift
conditional gifts are allowed by law. The requirements as to validity

of conditions are:[25]
A condition should not be vague.

A condition should not be inherently impossible of performance.
The condition should not be illegal.

The condition should not be immoral.
The condition should not be opposed to public policy.
CaseLaws:
1. State of U.P v. Sayed Abdul Jalil, AIR 1990 SC 1272.
2. Taraknath v. Sushil Chandra Dey, (1996)4 SCC 697.
3. V.P.K Umma v. P.N Kunhamu, AIR 1964 SC 275.
...
[5] actionable claim means a claim to any debt, other than a debt
secured by mortgage of immoveable property or by hypothecation or
Actionable claim
pledge of moveable property, or to any beneficial interest in

moveable 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;]
Jan 2013
Actionable claim
Already answered.
Vested interest
Section 43 of the Transfer of Property Act embodied this doctrine of
feeding the grant by estoppel .
Section 43 says that where a person fraudulently or erroneously

represents that he is authorized to transfer certain immovable
Doctrine of feeding the property and professes to transfer such property for consideration ,
Grant by Estoppel
such transfer shall , at the option of the transferee , operate on any

interest which the transferor may acquire in such property , at any
time during which the contract of transfer subsists .
Section 43 further provides that nothing in this section shall impair

the right of transferees in good faith for consideration without notice
of the existence of the said option .
The doctrine of feeding the grant by estoppels may be illustrated by

an example .
Let us suppose that A , a Hindu , who has separated from his father B
, sells to C three fields , X , Y and Z , representing that A is
authorized to transfer the same . Of these fields Z does not belong to
A , it having been retained by B on the partition , but on Bs dying ,
A as heir obtains Z . C not having rescinded the contract of sale , may
require A to deliver Z to him .
The doctrine of Lis pendens is embodied in section 52 of the
Transfer of Property Act .
According to this section during the pendency in any Court having

authority within the limits of India excluding the State of Jammu and
Kashmir or established beyond such limits of the Central
Doctrine of lis pendens Government , of any suit or proceeding which is not collusive and in
which any right to any immovable property is directly and separately
in question , the property can not be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the rights of
any other party thereto under any decree or order which may be made
therein , except under the authority of the Court and on such terms as
it may impose .
Usufructory Mortgage
Already answered.
Under Section 67 of the Transfer of Property Act the mortgagee, at
any time after the mortgage money has become payable and before
decree for redemption has been made, has a right to obtain from the
Remedy of foreclosure
Court an order for foreclosure or of sale.

Caselaw: Ganesh Prasad And Anr. vs Ram Shankar Lal Baldeo Das
And Ors. on 23 March, 1907
TP Act. Sec. 67. Right to fore-closure or sale.In the absence of a

contract to the contrary, the mortgagee has, at any time after the
mortgage-money has become 1[due] to him, and before a decree has
been made for the redemption of the mortgaged property, or the
mortgage-money has been paid or deposited as hereinafter provided,
a right to obtain from the Court 2[a decree] that the mortgagor shall
be absolutely debarred of his right to redeem the property, or 2[a
decree] that the property be sold. A suit to obtain 2[a decree] that a
mortgagor shall be absolutely debarred of his right to redeem the
mortgaged property is called a suit for foreclosure. Nothing in this
section shall be deemed 3[
(a) to authorise any mortgagee other than a mortgagee by conditional
sale or a mortgagee under an anomalous mortgage by the terms of
which he is entitled to foreclose, to institute a suit for foreclosure, or
an usufructuary mortgagee as such or a mortgagee by conditional sale
as such to institute a suit for sale; or]
(b) to authorise a mortgagor who holds the mortgagees rights as his
trustee or legal representative, and who may sue for a sale of the
property, to institute a suit for foreclosure; or
(c) to authorise the mortgagee of a railway, canal, or other work in
the maintenance of which the public are interested, to institute a suit
for foreclosure or sale; or
(d) to authorise a person interested in part only of the mortgagemoney to institute a suit relating only to a corresponding part of the
mortgaged property, unless the mortgagees have, with the consent of
the mortgagor, severed their interests under the mortgage.

Definition of Lease
105. Lease defined.A lease of immoveable property is a transfer of

a right to enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or promised,
or of money, a share of crops, service or any other thing of value, to

be rendered periodically or on specified occasions to the transferor by
the transferee, who accepts the transfer on such terms. Lessor, lessee,
premium and rent defined.The transferor is called the lessor, the
transferee is called the lessee, the price is called the premium, and the
money, share, service or other thing to be so rendered is called the
rent.
Section 2(b) in The Indian Succession Act, 1925
(b) codicil means an instrument made in relation to a Will, and
Codicil
explaining, altering or adding to its dispositions, and shall be deemed

to form part of the Will;
1[53. Fraudulent transfer.

(1) Every transfer of immoveable property made with intent to defeat
or delay the creditors of the transferor shall be voidable at the option
of any creditor so defeated or delayed. Nothing in this sub-section
shall impair the rights of a transferee in good faith and for
consideration. Nothing in this sub-section shall affect any law for the
time being in force relating to insolvency. A suit instituted by a
Fraudulent Transfer
creditor (which term includes a decree-holder whether he has or has

not applied for execution of his decree) to avoid a transfer on the
ground that it has been made with intent to defeat or delay the
creditors of the transferor shall be instituted on behalf of, or for the
benefit of, all the creditors.
(2) Every transfer of immoveable property made without
consideration with intent to defraud a subsequent transferee shall be
voidable at the option of such transferee. For the purposes of this subsection, no transfer made without consideration shall be deemed to
Apr / May
have been made with intent to defraud by reason only that a
2011
subsequent transfer for consideration was made.]

Sec. 41. Transfer by ostensible owner.Where, with the consent,
express or implied, of the persons interested in immoveable property,
Ostensible Owner
a person is the ostensible owner of such property and transfers the

same for consideration, the transfer shall not be voidable on the
ground that the transferor was not authorised to make it: provided
that the transferee, after taking reasonable care to ascertain that the
transferor had power to make the transfer, has acted in good faith.
128. Universal donee.Subject to the provisions of section 127,
where a gift consists of the donors whole property, the donee is
Universal Donee
personally liable for all the debts due by 1[and liabilities of] the
donor at the time of the gift to the extent of the property comprised
therein.
26. Fulfilment of condition precedent.Where the terms of a transfer
of property impose a condition to be fulfilled before a person can
take an interest in the property, the condition shall be deemed to have
been fulfilled if it has been substantially complied with. Illustration
Condition Precedent
(a) A transfers Rs. 5,000 to B on condition that he shall marry with

the consent of C, D and E. E dies. B marries with the consent of C
and D. B is deemed to have fulfilled the condition.
(b) A transfers Rs. 5,000 to B on condition that he shall marry with
the consent of C, D and E. B marries without the consent of C, D and
E, but obtains their consent after the marriage. B has not fulfilled the
condition.
Anomalous Mortgagee
(g) Anomalous mortgage.A mortgage which is not a simple

mortgage, a 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 an anomalous mortgage.]

TP Act. Sec. 127. Onerous gifts.Where a gift is in the form of a
single transfer to the same person of several things of which one is,
and the others are not burdened by an obligation, the donee can take
nothing by the gift unless he accepts it fully. Where a gift is in the
form of two or more separate and independent transfers to the same
person of several things, the doneee is at liberty to accept one of them
and refuse the others, although the former may be beneficial and the
latter onerous. Onerous gift to disqualified person.A donee not
competent to contract and accepting property burdened by any
obligation is not bound by his acceptance. But if, after becoming
Onerous Gift
competent to contract and being aware of the obligation, he retains

the property given, he becomes so bound. Illustrations
(a) A shares in X, prosperous joint stock company, and also shares in
Y, a joint stock company in difficulties. Heavy calls are expected in
respect of the shares in Y. A gives B all his shares in joint stock
companies. B refuses to accept the shares in Y. He cannot take the
shares in X.
(b) A, having a lease for a term of years of a house at a rent which he
and his representatives are bound to pay during the term, and which
is more than the house can be let for, gives to B the lease, and also, as
a separate and independent transaction, a sum of money. B refuses to
accept the lease. He does not by this refusal forfeit the money.
The meaning of the term "quasi-easement", which occurs in many
modern authorities is as follows. Where Blackacre and Whiteacre
both belong to A, the common owner, and during his ownership an
Quasi Easements
accommodation or privilege is enjoyed by Blackacre over Whiteacre,

and A subsequently parts with Blackacre to B but retains Whiteacre,
there passes to B in certain cases a right to the above accommodation.
This accommodation as it existed during the common ownership
cannot in the strict sense be described as an 'easement' but is usually
described as a "quasi-easement". Blackacre is sometimes described

as the quasi-dominant tenement, and Whiteacre as the quasi-servient
tenement.
So if the necessity involved is absolute the right claimed is
an easement of necessity and the case falls under clause (a), (c) or
(e), but it is qualified, the further conditions i. e., the right claimed
must be a right to an apparent and continuous easement, must be
fulfilled before clause (b), (d) or (f) will apply. The twenty year rule
does not apply to quasi-easements.
[a person is said to have notice of a fact when he actually knows

that fact, or when, but for wilful abstention from an enquiry or search
which he ought to have made, or gross negligence, he would have
known it.
Explanation I.Where any transaction relating to immoveable
property is required by law to be and has been effected by a
registered instrument, any person acquiring such property or any part
of, or share or interest in, such property shall be deemed to have
notice of such instrument as from the date of registration or, where
Notice
the property is not all situated in one sub-district, or where the

registered instrument has been registered under sub-section (2) of
section 30 of the Indian Registration Act, 1908 (16 of 1908)
Explanation II.Any person acquiring any immovable property or

any share or interest in any such property shall be deemed to have
notice of the title, if any, of any person who is for the time being in
actual possession thereof.
Explanation III.A person shall be deemed to have had notice of
any fact if his agent acquires notice thereof whilst acting on his
behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal
shall not be charged with notice thereof as against any person who
was a party to or otherwise cognizant of the fraud.
Inter vivos (Latin, between the living) is a legal term referring to a
transfer or gift made during one's lifetime, as opposed to a
testamentary transfer (a gift that takes effect on death).
The term is often used to describe a trust established during one's

lifetime, i.e., an Inter vivos trust as opposed to a Testamentary trust
which is established on one's death, usually as part of a will. An Inter
Transfer inter vivos
vivos trust is often used synonymously with the more common term
Living trust, but an Inter vivos trust, by definition, includes both
revocable and irrevocable trust.
The term inter vivos is also used to describe living organ donation, in
which one patient donates an organ to another while both are alive.
Generally, the organs transplanted are either non-vital organs such as
Jun / Jul
corneas or redundant vital organs such as one of the two kidneys or
2011
part of a liver.
Condition Precedent
Already answered.
Spes Successionis
Already answered.
The legal doctrine of Cy Pres is a French term meaning "as close as
possible." When a gift is made by will or trust and it is no longer
possible to follow the instructions of the donor, a judge, estate, or
Doctrine of Cypress
trustee may apply the Cy Pres doctrine to fulfill the donor's wishes as
nearly as possible. It is usually applied in the case of a gift made for
charitable or educational purposes when the named recipient of the
gift does not exist, has dissolved or no longer conducts the activity
for which the gift is made. In some cases, the Cy Pres doctrine is
used court disputes in which a judge must determine the appropriate

substitute to receive the gift.
The cy-prs doctrine is a legal doctrine that first arose in courts of

equity. The legal French term literally means "so near/close" and can
be translated as "as near as possible" or "as near as may be".The
doctrine originated in the law of charitable trusts, but has been
applied in the context of class action settlements in the United States.
When the original objective of the settlor or the testator became

impossible, impracticable, or illegal to perform, the cy-prs doctrine
allows the court to amend the terms of the charitable trust as closely
as possible to the original intention of the testator or settlor to prevent
the trust from failing.
For example, in Jackson v. Phillips, the testator (Francis Jackson)

bequeathed to trustees money to be used to "create a public sentiment
that will put an end to negro slavery in this country". At Jackson's
death in 1861, slavery was legal in the United States. But four years
after Jackson's death, slavery was abolished by the Thirteenth
Amendment, and some of Jackson's family attempted to dissolve the
trust. However, the court disagreed and ordered that to best fulfill
Jackson's wishes the trust should be used, cy-prs, "to promote the
education, support and interests of the freedmen, lately slaves, in
those states in which slavery had been so abolished".
TP Act Sec. 118. Exchange defined.When two persons mutually
transfer the ownership of one thing for the ownership of another,
Exchange
neither thing or both things being money only, the transaction is

called an exchange. A transfer of property in completion of an
exchange can be made only in manner provided for the transfer of
such property by sale
In order for a deathbed gift of an asset to be valid, the gift must be

made by someone in contemplation of his or her impending death.
The gift must be contingent on them dying and there must be the
handing over - or delivery - of the asset itself or the essential items
that indicate title to it. There must be the intention to change the
ownership of the asset rather than just physical possession of it.
In the recent case of Vallee -v- Birchwood [2013] EWHC 1449 (Ch)
the Court held that a Donatio Mortis Causa gift could be made four
Death Bed Gift
months before the person died. In that case, Ms Vallee lived abroad
and came to England to see her father, Mr. Bogusz. When they were
discussing when she would next visit she had told him that she hoped
to be over again at Christmas. Her father replied that he might not be
alive by then and handed her the deeds to his unregistered property, a
key to his house, his war medals and a photo album. Mr. Bogusz
died in the December without leaving a will. As Ms Vallee had been
adopted out of the family after her mother and Mr. Boguszs
marriage broke down, she was not entitled to benefit under Mr.
Boguszs estate.
May / Jun
2011
Charge
Already answered.
License
Already answered.
Immovable Property
Already answered.
Sec. 13. Transfer for benefit of unborn person.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
Unborn Person
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.
Illustration A transfers property of which he is the owner to B in trust

for A and his intended wife successively for their lives, and, after the
death of the survivor, for the eldest son of the intended marriage for
life, and after his death for As second son. The interest so created for
the benefit of the eldest son does not take effect, because it does not
extend to the whole of As remaining interest in the property.
Dec 2010
Vested interest
Already answered
Lis Pendens
Already answered
Lease
Already answered.
Onerous Gift
Already answered.
License
Already answered.
Restrictive covenant
Already answered.
Spes Successionis
Already answered.
Vested interest
Already answered.
Marshalling
Charge
Already answered.
Ostensible Owner
Already answered.
Fraudulent Transfer
Already answered.
Tenancy-by-holding
over
Licence
May / Jun
2010
Already answered.
Actionable claim
Already answered.
Ostensible Owner
Already answered.
Lis Pendense
Already answered.
Partial Redemption
Foreclosure
Already answered.
Charge
Already answered.
Vested interest
Oral Transfer
Sec. 3. Interpretation clause.In this Act, unless there is something

repugnant in the subject or context, immoveable property does
not include standing timber, growing crops or grass; instrument
means a non-testamentary instrument; 1[attested, in relation to an
instrument, means and shall be deemed always to have meant attested
by two or more witnesses each of whom has seen the executant sign
or affix his mark to the instrument, or has seen some other person
Attestation
sign the instrument in the presence and by the direction of the

executant, or has received from the executant a personal
acknowledgement of his signature or mark, or of the signature of
such other person, and each of whom has signed the instrument in the
presence of the executant; but it shall not be necessary that more than
Nov / Dec
one of such witnesses shall have been present at the same time, and
2009
no particular form of attestation shall be necessary;]

Sec. 21. Contingent interest.Where, on a transfer of property, 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, such person thereby acquires a
contingent interest in the property. Such interest becomes a vested
interest, in the former case, on the happening of the event, in the
Contingent interest
latter, when the happening of the event becomes impossible.

(Exception) Where, under a transfer of property, a person becomes
entitled to an interest therein upon attaining a particular age, and the
transferor also gives to him absolutely the income to arise from such
interest before he reaches that age, or directs the income or so much
thereof as may be necessary to be applied for his benefit, such
interest is not contingent.
Sec. 58. Mortgage, mortgagor, mortgagee, mortgage-money
Simple Mortgage
and mortgage-deed defined.

(a) 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. The transferor is called a mortgagor, the transferee a
mortgagee; the principal money and interest of which payment is
secured for the time being are called the mortgage-money, and the
instrument (if any) by which the transfer is effected is called a
mortgage-deed.
(b) Simple mortgage.Where, without delivering possession of the

mortgaged property, the mortgagor binds himself personally to pay
the mortgage-money, and agrees, expressly or impliedly, that, in the
event of his failing to pay according to his contract, the mortgagee
shall have a right to cause the mortgaged property to be sold and the
proceeds of sale to be applied, so far as may be necessary, in payment
of the mortgage-money, the transaction is called a simple mortgage
and the mortgagee a simple mortgagee.
Universal Donee
Already answered.
Licence
Already answered.
Codicil
Already answered.
Sec. 35. Election when necessary.Where a person professes to
transfer property which he has no right to transfer, and as part of the
same transaction confers any benefit on the owner of the property,
such owner must elect either to confirm such transfer or to dissent
from it; and in the latter case he shall relinquish the benefit so
Doctrine of election
conferred, and the benefit so relinquished shall revert to the transferor

or his representative as if it had not been disposed of, subject
nevertheless, where the transfer is gratuitous, and the transferor has,
before the election, died or otherwise become incapable of making a
fresh transfer, and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee the
amount or value of the property attempted to be transferred to him.

Illustrations The farm of Sultanpur is the property of C and worth Rs.
800. A by an instrument of gift professes to transfer it to B, giving by
the same instrument Rs. 1,000 to C. C elects to retain the farm. He
forfeits the gift of Rs. 1,000. In the same case, A dies before the
election. His representative must out of the Rs. 1,000 pay Rs. 800 to
B. The rule in the first paragraph of this section applies whether the
transferor does or does not believe that which he professes to transfer
to be his own. A person taking no benefit directly under a transaction,
but deriving a benefit under it indirectly, need not elect.
Extra
Definition of Easement
Already answered.
Intangible Property
Intellectual Property Rights
Spes Successionis
Already answered.
Sec. 29. Fulfilment of condition subsequent.An ulterior disposition
of the kind contemplated by the last preceding section cannot, take
effect unless the condition is strictly fulfilled. Illustration A transfers
Condition Subsequent
Rs. 500 to B, to be paid to him on his attaining his majority or

marrying, with a proviso that, if B dies as minor or marries without
Cs consent, the Rs. 500 shall go to D. B marries when only 17 years
of age, without Cs consent. The transfer to D takes effect.
Ostensible Owner
Already answered.
Simple Mortgage
Already Answered
Marshalling
Already answered.
Charge
Already answered.
Licence
Already answered.
PAPER-II: LAW OF PROPERTY ANSWERS

Answers to the aforementioned selected questions are available at www.eSaraswati.com
eSaraswati.com provides 24x7 Study Room & Library Services, specifically for aspirants
pursuing Law, Accounting, CA, CS, CMA, MBBS and IAS.

2015-12-15 10-09-51 Law of Property Notes Answers

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2015-12-15 10-09-51 Law of Property Notes Answers

Uploaded by

Copyright:

Available Formats

15 DEC 2015, Tue

A good study environment

24x7 Study Room

allows you to maximize you

When combined with

Selected Notes For LLB 3YDC Preparation Osmania University

2010 - 2016 www.eSaraswati.com

Our Infrastructure includes 24x7 Library & Study Room(s)

PAPER-II: LAW OF PROPERTY ............................................................................................................... 1

LAW OF PROPERTY SHORT NOTES & ANSWERS ........................................................................... 2

2010 2015 www.eSaraswati.com

PAPER-II: LAW OF PROPERTY

2010 2015 www.eSaraswati.com

LAW OF PROPERTY SHORT NOTES & ANSWERS

Sample Answers (Blank - Practice)

Spes successionis within the meaning of Section 6 of the Act: The

chance of an heir succeeding to an estate, the chance of a relation

Interest of reversioner (transfer is a nullity)

Chance of legacy (the bequest of legacy is a mere chance)

covenants are binding legal obligations written into the deed of a

U/S 19. Vested interest.Where, on a transfer of property, an

time when it is to take effect, or in terms specifying that it is to take

2010 2015 www.eSaraswati.com Page 2 of 25

Explanation.An intention that an interest shall not be vested is not

U/S 100. Charges.Where immoveable property of one person is by

this section applies to the charge of a trustee on the trust-property for

2010 2015 www.eSaraswati.com Page 3 of 25

U/71 Section 71 in The Indian Contract Act, 1872.

Responsibility of finder of goods.A person who finds goods

section 53 of the Indian Easements Act, 1882 read

with section 15(1) of the said TP Act.

section 53 of the Indian Easement Act, one could grant a licence in

transfer his interest in the property effected by the licence. Under

identical to a will. In some jurisdictions, it may serve to amend,

2010 2015 www.eSaraswati.com Page 4 of 25

distinction between a codicil and a will.

Section 3 in The Transfer of Property Act, 1882

means a non-testamentary instrument;

U/S 26. Fulfilment of condition precedent.Where the terms of a

Rule against perpetuity

"Perpetuities" (p. 164), is 'a future limitation, whether executory or

2010 2015 www.eSaraswati.com Page 5 of 25

or will not necessarily

within, the period

fixed and prescribed by law for the

,creation of future estates and interests'.

The rule as formulated

his heirs or, legal

representatives upon a future contingency, which may happen beyond

Caselaw: Rambaran Prosad vs Ram Mohit Hazra & Ors 6

As a matter of fact the burden of proving with the formalities of law

2010 2015 www.eSaraswati.com Page 6 of 25

In the decision Imbichimoideenkutty v. Pathumunni Umma and

"'HIBA' or gift under Mohammedan Law is a transfer of property

(d) Usufructuary mortgage.Where the mortgagor delivers

2010 2015 www.eSaraswati.com Page 7 of 25

Section 62 in The Transfer of Property Act, 1882

Refer earlier answer.

conditional gifts are allowed by law. The requirements as to validity

A condition should not be vague.

2010 2015 www.eSaraswati.com Page 8 of 25

The condition should not be illegal.

pledge of moveable property, or to any beneficial interest in

Section 43 says that where a person fraudulently or erroneously