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 9788180386886

Table of contents :
Poonam Pradhan Saxena : Property Law
1. Movable and Immovable Properties
2. General Introduction
3. Of Transfers of Property by Act of Parties
4. Of Sales of Immovable Property
5. Of Mortgages of Immovable Property
6. Charges
7. Of Leases of Immovable Property
8. Exchanges
9. Of Gifts
10. Of Transfers of Actionable Claims

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User Name: buddhiprakash1.chauhan9 Date and Time: 20 April 2020 12:34:00 IST Job Number: 114978099

Documents (12) 1. Movable and Immovable Properties Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language Narrowed by: Content Type IN Secondary Materials

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2. General Introduction Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language Narrowed by: Content Type IN Secondary Materials

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5. Of Sales of Immovable Property Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis

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8. Charges Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language Narrowed by: Content Type IN Secondary Materials

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9. Of Leases of Immovable Property Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language Narrowed by: Content Type IN Secondary Materials

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10. Exchanges Client/Matter: -NoneSearch Terms: poonam pradhan Search Type: Natural Language Narrowed by: Content Type IN Secondary Materials

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 1

CHAPTER 1 Movable and Immovable Properties Property can be classified into several categories such as tangible and intangible, real and personal, corporeal and incorporeal, movable and immovable. For the purpose of the TP Act, it is the last categorisation, i.e., the distinction between movable and immovable property that is relevant. The Act does not define the term property, but only gives a definition of immovable property. RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND IMMOVABLE PROPERTY The primary reasons why the study of the character of property, i.e., whether it is movable or immovable, is relevant, is due to the difference in procedural formalities in the transfer, and the different time stipulated in the law of limitation in having recourse to the litigative system in case of disputes. Thus, three predominant reasons necessitate a study of the distinction between movable and immovable property. (i) Though the TP Act lays down general rules relating to the transfer of both movable as well as immovable property, it governs and lays down rules for the specific transfers of immovable property only. (ii) The TP Act provides a specific procedure for the transfer of immovable property that is distinct from the one followed in the case of movable property. The transfer of immovable property must take place with the help of a written document that is properly executed by the transferor and the execution should be properly attested and registered. Unless the transfer complies with all the three requirements, it will not convey any right from the transferor to the transferee. In contrast, the transfer of movable property in several cases will be complete by simple delivery of possession of the property, coupled with an intention to convey the title by the owner to the recipient. For conferment of rights in the property through a transfer, the knowledge of the character of the property and the correct procedure for its transfer is a must. (iii)The law of limitation specifies different time periods within which a civil suit can be filed with respect to movable and immovable property. In case of immovable property it is generally 12 years from the date the cause of action arises, but in case of movable property, the suit must ordinarily be filed within a period of three years from the date of the cause of action, otherwise it will be dismissed as time barred. Thus it is extremely relevant to know the character of the property that is the subject matter of dispute, before a

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suit can be filed with respect to it in a court of law.1 In a suit relating to movable property, where it is filed after the expiration of three years from the date the cause of action arises, the first question that the court will decide, will be the character of the property. If the court comes to the conclusion that it is immovable property, it will decide the case on merits, but if the court concludes that the character of the property is movable, the case will not be heard on merits, but would be held barred by limitation and will be thus dismissed. PROPERTY The term property has nowhere been defined in the Act,2 but it is used in the widest and most generic sense.3 Property is the most comprehensive of all terms which can be used, as much as it is indicative and prescriptive of every possible interest which any person can have.4 Thus, it means not only the physical objects, but includes rights and interests existing in or derived out of the actual physical object as well.5 For instance, the beneficial interest of the head of a religious endowment such as a mutt,6 an actionable claim,7 a right to a reconveyance of land, a right to obtain shares in a company,8 is property. Interests in Property An owner has three basic rights in the property, i.e.—a right of ownership, of having the title to the property, secondly, an exclusive right to possess and enjoy the property and thirdly, an exclusive right to alienate the property in any manner that he likes. Absolute ownership is therefore an aggregate of component rights, including a right to enjoying the usufruct of the land.9 These rights are called ‘interests’ in the property under Indian law, and are referred to as ‘real rights’ under English law. Where only some rights in property are transferred, it would be a right of transfer of an interest in the property.10 A vested remainder,11 a contingent interest,12 a lease13 or a mortgage of an immovable property is the transfer of an interest in the property. Where all the interests in the property are transferred, it is called an absolute transfer of property. Property can be transferred absolutely by sale, gift, exchange, relinquishment, dedication etc. Concept of Immovable Property The literal meaning of the term ‘immovable’ is incapable of being moved, motionless, steadfast, or firmly fixed. In contrast, movable is explained as something that can be moved in relation to a place. Thus a layman’s distinction of movable and immovable property can be—what can be moved is movable, and what cannot be moved is immovable. It may appear simple but there may be some complications. For instance, fans and tube lights, window panes, tapestries on the wall, though fixed, may still retain the character of movables. For understanding the concept of immovable property, let us take a look at the definition of ‘immovable property’ under different enactments. The TP Act does not define immovable property but section 3 states as under.

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INTERPRETATION CLAUSE

Section 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; The General Clauses Act, 1897 explains it as follows. “Immovable property” shall include land, benefits to arise out of land, and things attached to the earth, as permanently fastened to anything attached to the earth.14 The Registration Act, 1908,15 defines it as under. “Immoveable Property” includes land, buildings, hereditary allowances, right to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops, or grass.

The last expression ‘things attached to earth’ has again been explained in s. 3 of the TP Act as things which are rooted in earth, such as trees and shrubs, things that are embedded in earth such as walls and buildings and things that are permanently attached to what is embedded in the earth for the permanent beneficial enjoyment of to which it is attached. Thus, immovable property includes land, benefits arising out of land, things rooted in earth, things embedded in earth, and attached to what is embedded in the earth for its permanent beneficial enjoyment, but does not include standing timber, growing crops and grass. Things Rooted in Earth and Standing Timber, Growing Crops and Grass The term ‘things attached to earth’ includes things rooted in earth such as trees and shrubs, but excludes standing timber, growing crops and grass.16 These three specific items that have been excluded are rooted in earth, yet are covered under the term ‘moveable’ property. It signifies that standing timber, growing crops and grass are distinct from ‘things rooted in earth as in case of trees and shrubs’. Trees Trees are immovable property as they are rooted in earth; and by virtue of s. 3 of TP Act, Page 3 of 49

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Registration Act, 1908 and the General Clauses Act, 1897, they are specifically included in the expression ‘immovable property’. Trees can be of various types and can be put to several uses. The Act does not classify them on the basis of their use generally, but simply excludes standing timber. It signifies that those trees which do not fall in the category of standing timber would invariably be covered under immovable property. Thus, fruit-bearing trees,17mahua tree,18 a date tree,19 mango and jackfruit trees20 are immovable property. An agreement to sell standing and fallen mango and jackfruit trees on the estate is an agreement to sell immovable property.21 A mortgage with possession of a fruit-bearing tree with the intention that the mortgagee is to enjoy the fruit of the tree, would be a mortgage of immovable property.22 Similarly, a right created in favour of a party to cut the trees for four years, is a right in immovable property.23 It, therefore, means that every tree that bears fruit cannot be called a fruit tree and that where a tree is not grown for its fruits to be used as such or where it was not a usual crop on the land, it cannot be treated as a fruit tree.24 Timber trees and standing timber Timber is wood that is or can be used as construction material, as distinguished from wood that is used for other purposes such as firewood, etc. Timber is associated with and is used for making tools, utensils, furniture, carriages, fences, and the like,25 or for other structural purposes.26 Timber is defined in Webster’s Collegiate Dictionary as a wood suitable for building houses, bridges, ships etc, whether on the trees or cut and seasoned. In India, the popular timber trees are shishum,27babul,28 teak,29 bamboo,30deodar, kail, rai etc. Neem is used both as a medicinal plant as well as for its timber. Similarly, a mango tree, though grown for its fruit; it would be regarded as standing timber in provinces where the wood of mango trees is used as timber and is generally used for building and repairing houses.31 A document relating to transfer of standing timber does not require registration.32 Since the main purpose for growing timber trees is to use their wood for construction or building purposes, ‘standing timber’ must be a timber tree that is in a state fit for these purposes, and further, a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still rooted in earth. If not, it is still to be categorised as an ordinary tree covered under the expression, ‘things rooted in earth’ because unlike timber, it continues to draw sustenance from the soil for its further growth. Let us understand it like this: a timber plant or sapling needs to grow to a particular height or/and age when the wood becomes suitable to be used as timber. Thus, the moment they are planted till the time they are immature, they would be covered under the expression, ‘things rooted in earth’, and hence would be ‘immovable property’. When they reach a particular maturity level, when the wood can be used as timber then, what is important to be seen is, whether they are intended to be cut within a short period of time or not. If yes, then they would be called standing timber, and if not, they would still be categorised as timber trees, and hence would be immovable property. Thus, before a tree can be regarded as standing timber, it must be in such a state that if cut, it could be used as timber, and when in the state, it must be cut reasonably early. The test is whether the intention is to take the benefit from the further growth of the plant i.e., Page 4 of 49

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whether the tree/plant is drawing nourishment from the land for its sustenance, or uses the earth merely as a warehouse or a godown for their conveniences’ sake. For instance (i) A, the owner of a forest enters into a contract with B, and grants to him a right to enter his forest and cut all kinds of plants and trees above the height of 10 feet, for a period of five years. The nature of right granted in his favour will be a right in immovable property. (ii) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and cut only timber trees that are in various stages of growth. The right again is a right in immovable property, as the contract is for timber trees and not standing timber. (iii)A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to cut standing timber, and the right is spread over a period of twenty years. The right is in immovable property as timber trees that are immature presently would become mature during the tenure period, and the grantee will be benefited from the further growth of the trees. The right is in immovable property even though the intention is to cut them away within a short span of time, when their wood becomes ready to be used as timber. (iv)A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to cut only timber trees for a period of ten years. All timber trees in his forest are fully grown mature trees. The right is still in immovable property as the intention is not to cut them within a short reasonable time period but is spread over a period of ten years; (v) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to cut only standing timber for a period of six months. The right would be in movable property. Thus the term standing timber connotes that in order to be regarded as movable property: (a) it must be a timber tree, (b) it has reached a particular stage where its wood is ready to be used as timber and (c) it is intended to be cut reasonably early. Important Cases Relating to Property In Shantabai v. State of Bombay,33A, the owner of a forest, executed an unregistered document styled as a lease in favour of his wife W, for a consideration of Rs. 26,000, for a period of 12 and a half years. As per the deed, the right was conferred upon her to enter the estate for cutting and taking out bamboo, fuel wood and teak. At the same time, she was prohibited from cutting teak plants that were under the height of one and a half feet, but the moment the teak trees reached that girth, they could be felled by her, but within 12 years. She enjoyed this right for two years, when the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 was passed, under which all proprietary rights in the land vested Page 5 of 49

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in the state and W was stopped from cutting any more trees. W claimed compensation from the government for being ousted from the forest from 1951 to 1955, but gave up the claim initially on the understanding that she would be allowed to work the forests for the remaining period. Though she applied to the Divisional Forest Officer and asked for permission to work the forests, it was not granted to her, and when she started cutting the trees on her own, she was stopped by the Forest Officer from doing so. She filed a petition in the court under Art. 32 of the Constitution. W contended that as the right granted to her was a right in standing timber, she was entitled to compensation. The issue before the court was: what was the nature of right created in her favour, a right in movable or immovable property? The relevance of this question as to whether the right granted in her favour was a right in movable or immovable property was that if the right was in immovable property, then irrespective of the fact of the change in ownership, she would still be entitled to realise the right but provided it was conferred in her favour with the help of a document capable of taking effect in law, i.e., where it was a lease for a period of 12 years it should have been executed in her favour with the help of a written, attested and registered document. If it is not, then it will not pass the right or title in her favour with respect to the property for 12 years. Secondly, if it was a right in movable property, then if the ownership changes hands, then, though the right to take the benefit as per the original contract will come to an end, but the grantee would be entitled to compensation for the rest of the time period for which she was not able to realise the right. Here, W could never have succeeded if the right was in immovable property as the document on which she relied was in writing, but was neither attested nor registered. Thus, she tried to prove that the grant was in standing timber, and therefore in movable property. The court held that a right to enter upon the land of another and carry a part of the produce is an instance of profits prendre, i.e., benefit arising out of land, and therefore a grant in immovable property. Pointing out the distinction between timber trees and standing timber, the court held that the grant here was not merely of standing timber, but the grantee here was empowered to take the benefit of the soil. The court said: the duration of the grant is 12 years. It is evident that trees that will be fit for cutting 12 years hence will not be fit for felling now. Therefore it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree, but also to derive a profit from the soil itself, in the shape of nourishment in the soil that goes into the tree and make it grow till it is of a size and age fit for felling as timber and if already of that size in order to enable it to continue to live till the petitioner choose to fell it.

Here the right was spread over a period of 12 years and the intention was not to cut the trees at a reasonably early time period, and as the right was created with the help of an unregistered lease deed, W could not be granted any remedy. On a question whether a contract to cut standing timber would require registration or not, the court in State of Himachal Pradesh v. Motilal Pratap Singh & Co.,34 held that where deodar, kail and rai trees that are used for building purposes are earmarked after ascertaining the required growth, silviculturally and some of them were felled and other to be cut within a short period of time, the contract is for standing timber and not timber trees and therefore of movable property. Hence, the documents for sale of these trees do not require registration, but Page 6 of 49

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where the contract is with respect to land having bamboo clumps and trees and the intention was not to cut them within a short period of time, rather they stood on the land for a period of ten years, it was held, that that it is immovable property. In Jagdish v. Mangal Pandey,35 the issue was whether the trees were movable or immovable property. The disputed trees were in the nature of five bamboo clumps, 39 mango trees and one sheesham tree. With respect to bamboo trees, whether they would be called immovable property or not, as the primary objective was to use them for construction purposes, the court said: it is true that bamboos are also used for building purposes but they cannot be regarded as such until it is intended to cut them for such useone thing would be obvious that in the larger definition of immovable property any thing attached to the earth would normally be treated as immovable property and a tree which is attached to the earth and seeks its nourishment and sustenance from the soil in which it stands will be deemed to be attached to the earth with the only distinction that if it was tree of a kind which is usually used as timber and was of sufficient size so as it could be used as such and is intended to be severed from the soil reasonably thereafter, it may be treated to be immovable property.

Therefore, apart from the size of the trees, the relevant consideration would be the intention to cut the tree or to let it remain attached to the earth. In the former case, it will be termed as ‘standing timber’ while in the latter it must remain immoveable property. Similarly in Banaras v. Ghuhi Rai,36 the court said that the real test for judging whether a tree is immovable or movable property is not the nature of the tree alone, but the way in which it is intended to be dealt with. If the intention of the parties in respect of a particular transaction is that tree, whether that be a neem tree or mango tree, is to be cut by the purchaser and removed, it will become timber, but if the intention is that it will after the purchase, continue to grow and to yield fruit or shade, it may not be timber. In the matter of Raj Balamgir,37 a person had contracted to purchase standing timber in the forest of B, and had agreed that the wood of the forest will be cut and removed within a year. The court held that the contract related to movable property. In Chhotabhai Jethabai Patel & Co. v. State of Madhya Pradesh,38 the petitioners had entered into contract with the proprietors of certain estates, under which they acquired the right to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees called hardwood and bamboos. The court held that these contracts did not create any interest either in the land or in trees or in plants. In Nanhe Lal v. Ram Bharosey,39 it was held that a grove consisting of shisham and neem trees will be covered under the expression ’standing timber’ and does not constitute immovable property. In Bharat Sebaigrass Ltd. v. State of Madhya Pradesh,40 bamboos were held to be immovable property and when they were sold as so attached, the transaction was treated as a sale of interest in land. In State of Orissa v. Titaghur Paper Mills Co. Ltd.,41 one of the contracts related to an agreement of the petitioners company with state of Orissa for the purpose of felling, cutting and obtaining and removing bamboos from forest areas for converting the bamboo into paper pulp, or for purposes connected with the manufacture of paper, or in any connection incidental therewith. Thus, the company had the right to use all lands, roads and streams within, as well as outside the contract areas for the purposes of free ingress to, and egress from, the contract areas. It was also given the right to make dams across streams, cut canals, make water courses, irrigation works, roads, bridges, buildings tramways and other work useful or necessary for the purpose of its business of felling, cutting and removing bamboos for the purpose of converting the same into paper pulp or for purposes connected with the manufacture of paper. For this Page 7 of 49

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purpose, they also had a right to use other forest produce. The agreement extended to 14, 13 and 11 years with respect to different contract areas with an option to the company to renew the contract for a further term of twelve years and it embraced not only bamboos which were in existence at the date of the contract but also bamboos that were to grow and even come in existence thereafter. The court held that the bamboo contract related to immovable property as a benefit to arise out of land and did not relate to a contract of movable property. It was a single integral and indivisible contract which was not to be severed. Growing Crops and Grass The term “growing crops” refers to all vegetable growths that are in existence and practically have no existence apart from their produce. A growing crop, therefore, will be a crop which may be in existence and in process of or coming to fruition.42 The mere fact that it is not yet in existence would not take it out of the character of the growing crop.43 It includes paan leaves,44 sugarcane,45tendu leaves, or timber,46 but does not include adjat, tendu plants,47 or a right to rear lac.48 The hypothecation of a sugarcane field is treated as referring to a sugarcane crop and would not be an interest in immovable property.49 A transfer of a right to rear and pluck or take away fruit from trees relates to the sale of growing crops,50 but the right of sowing, cultivating and harvesting crops is a lease of the trees themselves and a right in immovable property.51 Grass again is movable property. However, the term ‘grass’ alone is not the determining criteria. It would be movable property, but only when the intention is to sever it within a short time period and an agreement for the sale and purchase of growing grass, not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser is an agreement for the sale of an interest in immovable property i.e., land.52 For example, where A, the owner of a piece of land confers a right to B, to enter his land and cut grass for a period of five years, the nature of right created in favor of B is a right in immovable property as B will take the benefit from A’s land and will not take what is already ripe and ready. Land Land is immovable property. The term ‘land’, in its legal signification, includes any ground, soil or earth, such as meadows, pastures, woods, moors, waters, marshes and heath; houses and other buildings upon it, the air space above it;53 and all mines and minerals beneath it.54 It also includes anything fixed to the land, as well as growing trees and crops, except those which, broadly speaking, are produced in the year by the labour of the year. A grant of all the profits of land passes the whole land, herbiage, trees, mines and whatever is parcel of the land, but a grant of a particular profit of or right in the land does not extend beyond such profit or right. For the purposes of ownership, land may be divided horizontally, vertically or otherwise,55 and either below or above the ground. Thus separate ownership may exist in strata of minerals, in the space occupied by a tunnel,56 or in different storeys of a building.57 ‘Land’ is usually extended to include not only land in the physical sense, with all that is above Page 8 of 49

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it or underneath it, but also all rights in the land and a right to share in the proceeds of sale of land under a trust for sale.58 For instance, sale of a fertilizer factory would include not only the land but also the plant and the machinery of the factory.59 A house is immovable property, even where it is transferred to the other with an option to pull it down.60 Thus, where the donor made a gift of ‘my land’ to the donee, the land would also include the house that stood on it.61 Benefits Arising out of Land Benefits arising out of land or profits prendre is immovable property.62 Where a person using his land makes a profit, the right will be a right in immovable property. For example, a person has a vacant piece of land. Every year, during the festival season, he uses the land for holding a fair, and for this purposes he charges Rs. 1000 from each stall-holder. This right to collect the charge from the stall-holders is profits a prendre, i.e., profits that he makes using his land, and therefore a right in immovable property. Similarly, a right to take out by digging manure and rubbish accumulated in specific trenches and drains and carry away is a benefit arising out of land.63 An agreement to remove soil and earth from the land and to level the plot after removal of the soil is an agreement relating to immovable property.64 A right to enter the lake and catch fish for a period of five years,65 or a right to catch fish from the tank for a period of more than a year is a right in immovable property.66 A right to maliknama,67 a right to hold a fair on one’s own land,68 a haat,69 an equity of redemption,70 an interest of mortgage in an immovable property,71 a debt secured by a mortgage,72 a right to receive future rent and profits of land,73 and a vested remainder,74 are all instances of rights in immovable property. Things Attached to Earth Things that are attached to earth become part of the earth and are hence called immovable property. This category, under s. 3 of the TP Act, is divided into three sub-categories. The first relates to things rooted in earth except standing timber, growing crops and grass. The second relates to things that are embedded in earth as in the case of walls and buildings, and the third relates to ‘attached to what is so imbedded in the earth for the permanent beneficial enjoyment of that to which is attached’. It is the last category which needs detailed explanation, as it relates to certain objects that were movable to begin with, but after attachment to something that is imbedded in earth, change their own character and become immovable or fixtures. For instance, if for convenience’s sake, bricks are put on top of each other in a builder’s yard and form a wall, the bottom of this wall is attached to earth, yet at the same time, this makeshift wall will not get the character of immovable property. However, if the same bricks were used to construct a wall with cement or other construction material, it would be categorised as immovable property as something embedded in earth. DOCTRINE OF FIXTURES To understand under what circumstances a chattel (movable) becomes a fixture (immovable), we have to understand the doctrine of fixtures. Under English law, the doctrine of fixtures is Page 9 of 49

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explained and understood with the help of two maxims. These maxims clarify the ownership issues of the attachment. The two maxims are: (i) quicquid plantatur solo, solo credit, which means whatever is planted in the earth, becomes part of the earth, and consequently whosoever owns that piece of earth will also own the thing planted. (ii) quicquid inaedificatur solo, solo credit which means whatsoever is built into or embedded into or attached to soil becomes part of the earth and consequently, whosoever is the owner of that piece of land will also become the owner of the thing attached/built in or embedded. The application of these doctrines is subject to two exceptions. (i) The first is that they apply only when there is no contract to the contrary. For example, on the land belonging to A, B installs a pump and machinery to draw water. These are fixed to the earth with the help of construction of cement foundation. The contract between A and B stipulates that the ownership of the pump and machinery will continue to be with B. The doctrine will have no application here. (ii) The second exception relates to the trade fixtures fixed by a tenant. The term ‘trade fixtures’ refers to all those things attached or affixed by a tenant on the land of the other, which are necessary for him for the purpose of carrying on his trade. For example, A, the owner of a piece of land gives it to B, who is in the banking business. Along the cabin of the cashier, he installs heavy iron gates that are imbedded in earth. Even if there is no contract to the contrary, the ownership of the iron gates will continue to vest in B. Indian Law Relating to Fixtures The English Law of fixtures does apply in India but with serious modifications. The maxim of English law, quicquid plantatur solo, solo credit i.e., ‘whatever is affixed to the soil belongs thereto’ does not generally apply in India.75 Here, there are two rules that determine the entitlement issues, with respect to the things attached to or embedded in land by a person other than the owner. These rules apply only when this person was in lawful occupation of the property and was not a trespasser. (i) The first rule is that he is entitled to remove the attachment if he vacates the premises provided he leaves the land in the same state as it was previous to the attachment. (ii) The second rule is, that if he allows the attachment or improvement to remain on the land of the owner, so that the owner derives a benefit from it, he is entitled to compensation for the value of the attachment or improvement.76 This rule was laid down in Thakoor Chunder v. Ramdhone 77 and was subsequently also approved by the Privy Council in the Narayan Das 78 case. Though there is a significant departure from the English law of fixtures, yet, the Indian judiciary often takes the help of English cases to decide the question of when a chattel Page 10 of 49

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becomes a fixture. The issue may not appear difficult at a glance, for example, what is fixed to earth can be called immovable or a fixture but problem or confusion may arise in some cases. An anchor of a big ship is firmly embedded in earth, but it can hardly be called a fixture. Similarly, tapestries hung on the walls that can be removed easily, though attached to the walls, will be termed chattels. This question, that what is that sufficient attachment that will convert the character of a thing to make it a fixture from a chattel, has tremendous practical importance. For example A, the owner of a house professes to sell it to B and invites him for inspecting it. At the time of inspection, the house has an iron gate in the front, show cases made of wood that were fixed in the walls, electrical fittings etc. After the contract is concluded, whatever are the fixtures they will pass along with the house to B, and A is not empowered to remove them. He can remove only chattels. There are three tests to ascertain whether a chattel after attachment has become a fixture or not. (i) Mode of attachment and consequences of its detachment: The first test is the mode of attachment of the thing and consequences of its detachment. If a thing or machinery because of its sheer weight goes down in earth; the presumption will be that it is still movable. On the other hand if in attaching it some external aid is required such as construction of foundation, or it is fixed to the floor with the help of nuts and bolts, the presumption will be that it has become part of earth. How easily the object can be removed, has also to be taken into account. If in trying to remove it, no damage is caused to the thing and also to something to which it was attached in other words, the attachment can be removed easily without causing sufficient damage to which it was attached, the presumption will be that it is movable, but if in trying to remove it, the attachment is destroyed or loses its value or the support is sufficiently damaged, the presumption will be that the attachment had become part and parcel of that to which it was attached. The rule is that you cannot destroy the principal thing by taking away the accessory to it. (ii) Object or intention of attachment: The second test is the object or intention of attachment. Though the consequences will depend upon the facts and circumstances of each case, but where the object is to fix the attachment permanently or for a sufficiently long time period, the presumption will be that it has become a fixture, but if the intention was to enjoy the attachment for a specific short duration and then to remove it, the presumption will be that it is still a chattel. (iii)By whom attached: The third and the last test is ‘by whom attached’. The basic presumption is that nobody would want to make a permanent improvement of the land belonging to some other person. Thus if the attachment is by the owner of the land, the presumption would be very strong that the attachment has become a fixture, but if it is attached by somebody else other than the owner, such as a tenant, a licencee or a mortgagee, the presumption would be that it is still a chattel. Attached to what is Embedded The question whether any attachment embedded in the earth or permanently fastened to any Page 11 of 49

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thing attached to earth is movable or immovable property is therefore, a mixed question of law and fact, depending upon the facts and circumstances of each case.79 The tests are as aforesaid, to see what is the intendment, object, and purpose of attachment; whether it is for the beneficial enjoyment of the building, land or structure, or the enjoyment of the very attachment, and the degree or manner of attachment or annexation or the enjoyment of it to the earth.80 If the mode of attachment is that it is imbedding in the earth as in the case of walls and buildings, or if the object of the attachment is for the permanent beneficial enjoyment of the land to which it is attached, the property would be an immovable property.81 Thus where a person erects machinery of his own on a land belonging to another, there is a presumption that the machinery is erected by him either as a licensee or as a temporary tenant, and the machinery does not form part and parcel of the immovable property to which it is attached for the time being.82 If the degree of annexation is such that the fixture cannot be taken away without destroying the principal, it would be regarded as immovable property,83 e.g., copper stills placed upon two iron rails in a distillery which could be removed by pulling down the brick and mud wall put up on one side for the purpose of keeping them in position,84 equipment of a touring cinema, being collapsible and easily removed, are movables85 but a petrol engine mounted and fastened to a cement base is immovable property, as its fixation on earth is for the beneficial enjoyment of the property during its lease.86 A boiler, an engine and a decorticator fixed and embedded in a ginning and decorticating factory building are immovable property, as they were fixed for the beneficial use of the building as a factory.87 Where the main machine of the mill is installed on a small platform, and held in position by being attached to iron pillars fixed to the ground to a depth of nearly six to seven feet, the plant and the machinery are immovable properties, the main consideration being the object of annexation.88 Where the tenant is running an ice factory in the premises of another, it will be presumed that he installs the same with the intention of removing it at the determination of the tenancy and it would therefore not be an immovable property.89 In considering whether a chattel in a particular case is imbedded in the earth so as to become immovable property, the test of mode of annexation and degree of annexation has been applied in India.90 Important Cases In Holland v. Hodgson,91 while holding that looms attached to earth and floor of a worsted mill were fixtures Blackburn J held: the general maxim of the law is that what is annexed to land becomes part of the land; but it is very difficult if not impossible to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case and mainly on two circumstances indicating the intention viz the degree of annexation and the object of annexation.

In Leigh v. Taylor,92 the House of Lords held that certain valuable tapestries affixed by a tenant to the walls of a house for the purpose of ornament and for better enjoyment of them as chattels had not become part of the house, and therefore retained their character as chattels. In Duncan Industries Ltd v. State of Uttar Pradesh,93 a company agreed to transfer its fertilizer business including the plant and machinery. The issue before the court was with respect to the Page 12 of 49

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character of plant and machinery. The parties had treated them as movables and had delivered possession of the said plant and machinery as movables. This plant and machinery related to the fertilizer business of manufacturing, marketing distribution and sale of urea fertilizer, and included ammonia manufacturing plants, captive power plants, vehicles, furniture, air conditioners, standby systems, pipelines, railway siding, etc. The machineries which formed the fertilizer plant were permanently embedded in the earth, for running the fertilizer factory and at the time, when these machineries were embedded in earth, they were done so by the owner with an intention, to use them permanently. Further, in the very nature of the user of these machineries, it was necessary that they be permanently attached to the ground. The court held that these were immovable properties. Therefore, physical delivery of possession, without a written, attested and registered document could not convey any title to the other party in these properties. However, it does not mean that in all cases where the machinery is attached to or embedded in earth, it would be categorised as immovable property. It would depend upon the facts and circumstances of each case where the machinery is attached to the earth only because of its operational efficiency, and removed from the base easily, it would continue to be called movable property.94 In Bamdev Panigrahi v. Monorama Raj,95 a person, A, was conducting a business under the name of ‘Kumar Touring Talkies’. He obtained land under possessory mortgage from the Raja of Mandasa in 1957, and built a temporary cinema structure and erected a temporary pandal over it. For the purposes of exhibiting cinema shows, he purchased a cinema projector and a diesel oil engine. This equipment was embedded and installed in earth by construction of foundation. For the purpose of running the cinema shows, A, applied and got a license that was purely temporary for a period of one year from the concerned authorities. He allegedly entrusted the management of this business to his friend B, out of trust and confidence in him. However, B colluded with the Rajah and obtained the mortgage in his name. A issued a notice in May 1961, calling upon B to render correct account of the management of the entire cinema concern including the machinery, equipments, records, etc. B denied his liability to account for the management of Kumar Touring Talkies by a written reply in June 1961. A became sick in 1963, and continued to be so till Aug 1965, when he died. Thereupon, A’s widow W filed a suit in July 1966, praying for a declaration that she was the owner of Kumar Touring Talkies, and a direction that the equipment including the cinema projector and the diesel oil engine be returned to her. This case illustrates the importance of understanding the distinction between movable and immovable property. The court, in such cases, even before going into the merits of the case, has to decide the character of the property. If it comes to the conclusion that the disputed property is immovable, it will go ahead and decide the case on merits, and if it concludes that such property is movable, then the case will be dismissed as time barred, it having been filed after more than three years from the date the right or claim was denied, i.e., B had denied the claim of A in June 1961 while the suit was filed in this respect in July 1966 after more than five years. The law of limitation prescribes a limitation period of three years in case of movables. The court here noted that the operation of the business by its very name, ‘Kumar Touring Talkies’ showed that exhibiting cinema shows at a specific place was purely temporary. Therefore, even if the two items of disputed property were attached and embedded Page 13 of 49

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in earth, the intention can only be to have them affixed to earth temporarily. The license to exhibit the shows was only for a period of one year, and there was no guarantee that the owner would have applied for its renewal or the authorities would have renewed it. Thirdly, the person who fixed them to the land was not the owner of the land. These items were in fact been removed from the land subsequently. The court held that these were movable properties and the suit being time barred was dismissed. Things Permanently Attached to what is Embedded in the Earth, for the Permanent Beneficial Enjoyment of that to which it is Attached With respect to the last category, i.e., things permanently attached to what is embedded in the earth, for the permanent beneficial enjoyment of that to which it is attached, the requisite factors here are that: (i) firstly, it must be a permanent attachment, i.e., intended to be used in perpetuity or till the life of the attachment. (ii) Secondly, its attachment constitutes a permanent improvement to the thing to which it is attached. For instance, fans and tube lights holders are permanently attached to the walls/ceilings of a room, the later being immovable property. These attachments are permanent, and are for the better enjoyment of the room, i.e., to which they are attached, and therefore would be termed immovable property. Similarly, take the case of a well in a field. On the top of the well is a two feet wall and a pulley is attached to it with nuts and bolts. If the character of the pulley attached to the well has to be ascertained, factors to be considered would be; first that it is permanently attached to what is embedded in the earth—in this case, the wall of the well, the well being immovable property and secondly, the attachment helps us to enjoy which property in a beneficial manner. Do we enjoy the pulley (chattel) with the help of the wall and the well (immovable property) or do we enjoy the well, with the help of the pulley, i.e., is the pulley a permanent improvement on the well? If it is, then this in itself, becomes a part of well and therefore would be categorised as immovable property. Other Instances of Immovable Property In a nutshell, immovable property includes land, benefits arising out of land and things attached to earth,1 or permanently fastened to any thing attached to earth.2 It also includes buildings,3 hereditary allowances and offices,4 right of way,5 lights,6 a right to ferry,7 fisheries.8 A fruit bearing tree, a rubber tree,9 standing trees,10 or a timber tree which is in the process of growth and is taking nourishment from the soil for its sustenance,11 will be immovable property. Trees which are merely saplings at the time of the agreement, are part of the land and would vest in the transferee.12 Where, at the time of the agreement to sell land there are only plants and saplings on the land but later due to denial by the owner to execute the sale deed the buyer institutes a suit for specific performance, and the plants grow into full fledged trees during 25 years of litigation, unless there is an express agreement to exclude these trees, they form part of the land and pass with the land to the buyer.13 In a sale for land, Page 14 of 49

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the fact that the well, tube well, room and trees are standing on the land are not specifically mentioned in the agreement, is not relevant as they formed part of land.14 Immovable property does not include standing timber, growing crops and grass.15 Movable Property Standing timber,16 growing crops,17 grass,18 fruits upon trees19 are illustrations of movable property.20 Sugar stored in a godown,21 a pala or turn of worship,22 a right to recover maintenance though charged on land,23 a royalty,24 a decree for the sale of immovable property,25 a decree for arrears of rent,26 are movable property. Where the plaintiff assigned the copyright of all his works, of literary, dramatic or musical nature of the film, it was held that what he assigned was a right in movable property.27 Copper stills placed upon two iron rails in a distillery building, which could be removed by pulling down the brick and mud wall put up on one side for the purpose of keeping them in position,28 machinery owned by one person but attached to the land belonging to another person with the intention of removing it,29 machinery fixed in a house for baling cotton,30 and a cinema projector and a diesel oil engine fixed on earth for the purposes of exhibiting shows in a touring cinema, are movable properties.31 Under Indian law there can be a valid mortgage of movable property.32 Transfer of possession of goods is not a mandatory requirement in mortgage of movable property.33 Water and Sludge Water is movable property, and therefore, an agreement to pay a specific sum of money for the maximum water drawn at any time will be a right in movable property.34 ‘Sludge in a tank, and just when it is taken out of the sedimentation tank is again movable property as though very much akin to earth or land, it is not a part of the land. If a large quantity of sludge is taken out of the land and is stored on land it does not lose the character of sludge and become a part of the land, unless it is allowed to remain there for a long time as to become a part of the land. When stored in a lagoon, it retains the character of sludge, and cannot be treated as immovable property.’35 ATTESTATION The Transfer of Property Act, 1882, Section 3 “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 sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment 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 one of such witnesses shall have been present at the same time, and no particular form of Page 15 of 49

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attestation shall be necessary; GENERAL PRINCIPLE For the transfer of immovable property, the owner has to comply with three basic formalities. The execution of a proper written transfer deed is the first requirement. It has to be executed, i.e., signed by the transferor. The second is that it has to be properly attested and the third, that it should be duly registered. Till all three requisites are met with, no title or right would pass from the transferor to the transferee. Thus, proper attestation is an important element in the transfer of property. The purpose sought to be achieved by making attestation a mandatory requirement is the verification of voluntary execution of the transfer deed in case of doubts or express denial by the transferor with respect to transfer of property. It also protects the executant from being required to execute a document by the other party thereto by force, fraud or undue influence.36 Legislative & Judicial Developments with respect to the Concept of Attestation According to s. 3 of the TP Act, for a valid attestation a minimum of two competent witnesses must testify the proper execution of the transfer deed. It is important to note that when the Act was passed in 1882, it did not contain the definition of ‘attestation’. However, this term as explained in the Indian Succession Act, 1865, implied that for a valid attestation, the attesting witness could either be present at the time of execution of the deed, or if not present at the time when transferor signed, could receive a personal acknowledgement from him, and then attest it. Under English law on the other hand, attesting after receiving a personal acknowledgement was not permissible, and the witnesses must have actually seen or witnessed the execution of the document for the attestation to be valid. In absence of a concrete definition of ‘attested’ under the TP Act, a conflict of judicial opinion emerged. Calcutta and Madras High Courts followed the English law,37 but Bombay and Allahabad High Courts38 permitted personal acknowledgement based attestation also. These twin rules continued till the Privy Council in Shamu Patter v. Abdul Kader,39 adopted the approach followed under English common law and held that for a valid attestation, the competent witnesses must have seen the executant putting his signatures or mark. It, therefore, expressly overruled the earlier decisions of the Bombay and Allahabad High Courts, which meant that documents executed in pursuance of these courts’ decisions, where attestation was based on personal acknowledgement, were invalidated. In order to avoid confusion and to validate such documents, an Act was passed, namely, the Transfer of Property (Validating) Act, 1917 (26 of 1917). In 1926, the definition of attested was inserted in the Act and to make the application of this definition retrospective, it was amended in 1927, by the insertion of the words ‘and shall be deemed always to have meant’. Meaning of Attestation under the Present Act The present definition makes a significant departure from Shamu Patter’s case40 and the English law as well.

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The basic ingredients for a valid attestation are: (i) that the document must be attested by at least two or more witnesses; (ii) they should have either seen the executant putting his signatures or mark, or some other person doing the same in the presence of, and under the direction of the executant; (iii)if the document has already been executed or signed by the executant, the witnesses must receive a personal acknowledgement from none other than the executant himself, of his signatures; (iv)witnesses must sign in presence of the executant; (v) it is not necessary that both witnesses should be present at the same time; and (vi)there is no specific form of attestation. Due to the permissibility of attestation on personal acknowledgement, it is now no longer necessary that both or even any of the witnesses must be present at the time of the execution of the document. Both, or any one of them can come later, get an acknowledgement from the executant with respect to his signature or mark, and then attest. Thus, at the time when the executant signs, the witnesses need not be present, but it is mandatory, that when the witnesses attest the document, the transferor executant, must be present, because if the witnesses are witnessing the execution of the document, both they and the executant would be present, and if they come later and then attest, even then the executant has to be present as it is he/she only who should give a personal acknowledgement. Thus where one of the witnesses testified that the other witness had signed in his presence, but did not establish that he signed in presence of the executant of the document, the gift is not validly attested.41 Similarly, where the attesting witnesses were neither present at the time of execution of the sale deed nor had even seen the executant, the deed is not validly executed42. Distinction between Indian and English Law Indian law differs from English law in three significant aspects. (i) Under English law, both the attesting witnesses are required to actually see the execution of the document. This means that the witnesses must be present together, and the document must be executed in their actual physical presence by the executant. While under Indian law, witnesses may come later to the execution, receive a personal acknowledgement, and then attest. (ii) Under English law, both the witnesses should be present together, but under Indian law they need not be present at the same time. Under English law, at the time of the execution of the document witnesses must be present but under Indian law, they may or may not be present at the time of execution of the document. (iii)Under English law, attestation based on personal acknowledgement is not valid, but under Indian law, attestation based on personal acknowledgement is perfectly valid.

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Competency of attesting witnesses Although attestation is extremely important for the valid execution of a transfer deed, yet it is surprising to note that the TP Act does not stipulate any qualification for the competency of a witness.43 An attesting witness must be a person who is competent to contract, i.e., he must have attained majority and be of sound mind. Religion, sex, caste, social and financial status are totally irrelevant considerations. A relative, a neighbour, a business partner, an office colleague or a friend can be a competent witness. Even an illiterate person can be a competent witness. However, a party to the deed,44 a person who executes a deed as a power of attorney, or as an agent of the other,45 are not competent attesting witnesses. Scribe A scribe is a person who may sign on behalf of the executant. A scribe who signs on behalf of an illiterate mortgagor46 is not a competent attesting witness, but where the mark was put by the mortgagor but the scribe merely wrote a description of it, he is competent to attest.47 A scribe may be an attesting witness as well as the writer, but it is essential to prove that he signed as an attesting witness.48 Thus, where the scribe signs as an attesting witness and also as an identifying witness before the registrar and his signature appears at three different places on the registered document,49 or where the scribe wrote the document, read it over to the parties and then put his signature as an attesting witness as well, the document is validly attested50. Party interested in the transaction A party who is interested in the transaction can be a competent witness. For instance, where the money is advanced by a third party but not by the mortgagee who also attested the deed, the attestation is proper.51 Similarly a person who advances money for a mortgage in favour of his benamidar is competent to attest.52 In Kumar Harish Chandra Singh Das v. Bansidhar Mohanty,53 the facts were like this: A and B were friends. A was in need of money, B had the money and wanted to help A, but the relations between them were such, that B felt embarrassed in asking for some security from A, for the repayment of the money advanced, for fear that it may spoil their relations. He took the help of C, whom he had taken into confidence. Though the money was B’s it was lent to A by C, who also obtained a mortgage of A’s property in his (C’s) name as a security for repayment of the money. This mortgage deed was duly executed by A as the mortgagor in favour of C the mortgagee, and was attested by two witnesses, one of whom was B. B, who had lent the money, was a person who was a party to the whole transaction, but it was only A and C who were parties to the deed. The Supreme Court held that no provision of law debars a money-lender from attesting a deed which evidences the transaction where under the money was lent. The Hon’ble Court drew a distinction between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction. While the former is incompetent to be an attesting witness, the later can validly attest the deed. It was held that the deed was validly attested. Registrar as attesting witness Page 18 of 49

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A registrar can be a competent witness provided he has animus to attest.54 The Sub-registrar or registering officer who registers the document therefore may act as attesting witness, but it must be shown that (i) he has intention to attest; and (ii) he has either personally seen the executant signing the document, or the executant accepts the execution before him.55 In ML Abdul Jabbar Sahib v. MV Venkata Sastri,56 the issue was, whether the deed signed by the Sub-registrar and identifying witnesses is validly attested, if only one or more person has signed it as attesting witnesses. Here, A instituted a suit against B, claiming a sum of approximately Rs. 49,000 allegedly loaned to him on the strength of two promissory notes executed by B, in his favour. B obtained a leave to defend this suit on a condition that he execute a security bond in favour of Registrar, high court, for Rs. 50,000. B executed this bond, charging several of his properties. This bond was signed by one attesting witness X, and an advocate Y, who had prepared and explained the document to B, and had identified him, as well as two other persons who had identified B before the Registrar. The bond was also signed by the Sub-registrar. The court decided the dispute in favour of A, and directed that the charged properties be sold, and the claim amount be paid out of the sale proceeds. What is pertinent to note here is that B, from three more persons, O, P and Q, had borrowed some amounts, and had failed to repay them as well. These three persons had also gone to court and had obtained simple money decrees against B, which they wanted to execute against the same properties, that were charged under the security bond in favour of the Registrar of the high court, and with respect to which, A claimed the status of a secured creditor or priority of claim. The claim of A was, that as he was a secured creditor, due to the security bond, out of the sale proceeds of the charged properties, first he should be paid, and if some amount is left over after satisfying his claim, it should be distributed among O, P and Q. On the other hand, O, P and Q claimed that all four of them i.e., A, O, P and Q had equality of status as unsecured creditors, and therefore the sale proceeds should be rateably distributed amongst them. They based their claim on the argument that the security bond does not create a charge, as it was not validly attested by two competent witnesses. Rather, it was attested by only one witnesses and the rest of the persons, whose signatures appeared on the bond, had signed in different capacities. This case also highlights the importance of valid attestation in matters of transfer of property, and deciding disputed claims. Here, if the bond is found to be validly attested, then only it will create a charge on the properties, with the result that A’s claim will be satisfied first, and the remaining amount will pass to the simple money decree holders. On the other hand, if the bond is not validly attested, no charge will be created for the benefit of A, and he will not have any priority with respect to satisfaction of his claim, as he will be at par with the other unsecured creditors. The court therefore had to decide whether the bond was validly attested. The court, here, explained the meaning of the term ‘attested’ and observed that it is essential that the witnesses should have put their signatures animo attestandi, that is, for the purpose of attesting that they had seen the executant sign or had received from him a personal acknowledgement of his signatures. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is Page 19 of 49

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not an attesting witness. The Registering Officer, the court said, is required to affix the date and his signatures to the endorsements. Prima facie, the Registering Officer puts his signatures on the document in discharge of his statutory duty, and not for the purpose of attesting it, or certifying that he has received from executant a personal acknowledgement of his signatures. Likewise, the two identifying witnesses had put their signatures on the document to authenticate the fact that they had identified the executant, and as it was not shown that they had put their signatures for the purpose of attesting the document, they could not be regarded as attesting witnesses. The court held that as the document was attested by one attesting witness only, it did not create a charge, and so A’s status was that of an unsecured creditor, whose claim was at par with the claim of the other three simple money decree holders. Animo Attestandi To attest is to bear witness to a fact.57 The attesting witnesses must put their signatures on the document with animo attestandi, i.e., with intention to attest, which means that the physical act of putting their signature/mark must coincide with the mental act (intention) to authenticate the execution of the document. A person merely indicating his consent to the transaction,58 or an identifying witness,59 is not an attesting witness, but such a person can be an attesting witness if he witnesses the execution of the document, and puts his signature by describing himself as an attesting witness. It is essential that the witness put his signature animo attestandi, that is, with intention of attesting.60 If a person puts his signatures for any other purpose, e.g., to certify that he is a scribe61 or a registering officer, or a solicitor,62 or for identifying the testator,63 he is not an attesting witness.64 Legatees who put their signatures on the will in token of their consent to its execution are not disqualified from taking as legatees.65 It is necessary that the person relying upon a document must establish that the executant has signed or put his thumb impression before the attesting witness, and the attesting witness must sign in his presence.66 Where the executor of a mortgage accompanied by the mortgagee came to the house of the witness, acknowledged the execution and made a request for attesting the document and thereupon he attested it, it was held that attestation is valid.67 Where the deed was written in the English language and the executant as well as the attesting witnesses were unfamiliar with this language, and the contents of the deed were not explained to the executant, the court held that the document was not properly attested.68 Mode of attestation There is no particular form of attestation,69 and a mere signature is sufficient.70 The Act does not specify that it should be at any particular place in the deed.71 Rather, the definition of attestation specifically mentions that ‘no particular form of attestation shall be necessary’. However, the fact that witnesses are signing as attesting witnesses should be clearly discernible from the document. Law does not require people besides the transferor and transferee to merely sign the document at any time and call themselves attesting witnesses. The main purpose of attestation is to testify to the voluntary execution of the document by the Page 20 of 49

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transferor. In Sant Ram v. Kamala Prasad,72 on a transfer deed prepared by a lawyer, before the transferor could sign, four persons from the side of the transferor and two from the side of the transferee, who called themselves attesting witnesses signed on the document. This document was then presented for registration, while the transferor was yet to sign it. On the Registrar pointing out at the discrepancy, the transferor signed in presence of the Registrar but none of the six ‘witnesses’ were present. It was held that the deed was not validly attested, as, the time when these six persons had signed the document it was not even executed. Attestation means testifying the voluntary execution of the transfer deed, and therefore attestation can never be prior to the execution of the document, and must always be subsequent to it. It is not necessary that more than one witness be present at the same time.73 Attestation must take place in presence of the executant,74 but even an actual witness to the executant would not validate putting of signatures of the attesting witnesses before the execution of the document.75 Where the executant was a pardanashin lady, and put her hand out from behind a curtain and made her thumb impression on the deed in sight of the witness and then her husband signed, followed by the attesting witnesses, it was held that the witnesses signed ‘in the presence of the executant even though he saw only her hand and not her face, and the document is duly attested.76 However, where one out of two witnesses to a mortgage bond signs his name as an attesting witness for himself and on behalf of the other witness in the latter’s presence, the attestation is valid though the other witness does not make his mark.77 Where two deeds are prepared and executed as a part of one transaction but the marginal witnesses are not common, merely from the circumstance that the disputed agreement has another set of marginal witnesses, it cannot be inferred that the document is forged or fictitious.78 Attestation of a document executed by a pardanashin woman In case of a pardanashin woman,79 the rules are slightly relaxed. Here, the witnesses may not be able to see the woman, as she may remain behind purdah (veil), due to social customs. In such cases, applying the rules rigidly may make transfer of property by pardanashin women extremely difficult, thus in such cases, if the witnesses are well versed with the voice of the pardanashin woman, see the deed being executed through curtains and then attest it, it is validly attested. In Padarath Halwai v. Ram Narain,80 the mortgagors were two pardanashin ladies who did not appear before the attesting witnesses, and consequently, their faces were not seen by the witnesses. The two witnesses were however well acquainted with the voices of the ladies. Between them and the women was a chik that was not lined with cloth. The two witnesses recognised them by their voices, and saw each of them execute the deed with their own hand, and then put their signatures on the document as attesting witnesses. The Privy Council held that the deed was validly attested. Similarly, in a case, the lady sat behind a curtain, but the scribe along with her family members, including her husband and a nephew, sat outside the curtain, and the scribe read out the deed to her. The lady accepted the deed, put out her hand and put her thumb impression on the document in sight of the witnesses. Thereupon, the husband and another person signed as attesting witnesses. The attestation was held to be valid.81 However, where the son of the pardanashin lady takes the document inside the purdah; gets it executed, and brings it outside and then the attesting witnesses put their

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signatures after receiving the acknowledgement from the son and not from the lady, the document is not validly executed.82 Attestation as proof of consent Attestation does not of itself imply consent,83 though there may be circumstances which show that the attesting witness had knowledge of contents of the document he attested and consented to.84 Attesting witness not a party to the execution of the document Mere attestation of a document would not make an attesting witness a party to the execution of the document. Nor would it make an otherwise invalid document valid simply because the person competent to execute it was an attesting witness.85 Where the mother of a minor child executes a gift of the former’s property without obtaining the required permission from the court and the father signs as an attesting witness, the same is void. The significance of attestation in law is to stop the attester of the document from denying the contents of the document, that too if the contents of the same and the legal implications of the attestation are shown to have been well within the knowledge of the attester at the time of the making of such attestation and not help to make the attester the real executant of the document itself.86 Proof of valid attestation in court In order to prove the validity of a deed, the party relying on it must prove that it was attested by two witnesses.87 Where the mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted, the mortgagee need only prove that the mortgagor signed the document in the presence of an attesting witness, and one man attested the document, provided that the document, on the face of it, bears the attestation of more than one person. However, if the validity of the mortgage be specifically denied in the sense that the document did not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses.88 Where the mortgagors do not question the execution of the mortgage but the fact of possession, the mortgage is not specifically denied, and is sufficiently proved.89 A document requiring attestation can be used as evidence, and one attesting witness, at least, should be called for the purposes of proving its execution. Where one attesting witness is called and he testifies that the mortgage is executed, the validity of the execution of the deed is established.90 Similarly, if the execution of gift deed is specifically denied, then an attesting witness may be called to prove it. If, however, such execution is not specifically denied, then it would not be necessary to call an attesting witness to prove the same. But the document, all the same, has to be proved.91 Due execution and attestation of the gift deed has to be proved92 although it may be proved by calling a person other than an attesting witness.93 Thus, where the document is duly attested by two attesting witnesses and one of them is examined to prove the deed, nothing more is required to satisfy the execution in absence of specific denial in the written statement, or even subsequently, before the court.94 Where the attesting witness is produced Page 22 of 49

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but he denies or does not recollect the execution of the document, its execution may be proved by other evidence.95 Where one of the attesting witnesses is dead and the other unable to say if the deed in question is the one he attested, evidence of the scribe would be sufficient.96 Where the handwriting of the attesting witnesses who are dead has been proved, the presumption in the absence of rebutting evidence is that they actually witnessed the execution.97 Where the evidence of one of the attesting witness is shaky with respect to the execution of the gift deed and no evidence is there to show that the document is signed by the donor in presence of the other witnesses and the execution of the document is suspicious, the document is not validly executed.98 The law does not require that the same witnesses before whom the deed has been executed should appear before the Sub-registrar.99 NOTICE The Transfer of Property Act, 1882, Section 3 “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. GENERAL PRINCIPLE Notice literally means knowledge, and this doctrine under the TP Act is used to determine the rights and claims of two or more persons vis--vis each other, who are involved in an unconscionable transaction. The person responsible for creating such a condition is not part of the situation any more, and the other persons fight with each other for a claim or a piece of property. In such a scenario, the court determines their rights with the help of doctrine of notice. For instance, a family comprises of a father F, son s. and a daughter D. The father leaves his property to the son under a will, and in it, provides that Rs. 5,000 per month will be paid by the son, out of this property, to the daughter for her maintenance and till he makes an alternative arrangement of an equivalent amount for her, he should not sell the property. Here, it would be unconscionable for the son to sell the property without making such an arrangement. The son sells the property to X, without making any provision for D. D wants to proceed against X, who has paid full consideration for the property, but he denies any liability to pay her. Here due to an unconscionable stand of S, two seemingly innocent persons, D whose is currently deprived of her maintenance, and X, on whom a liability is sought to be imposed by D, are forced to go to court. In this scenario, the rights and claims of D and X can be determined using the doctrine of ‘notice’. The court will examine the question whether X, who claims to be a bona fide purchaser, had ‘notice’ or knowledge of D’s rights over the property at the time of the conclusion of the contract between him and S. If he knew that D had a right over it, he purchases the property burdened with this right and thus it will become Page 23 of 49

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his responsibility to honour that right. But if he had no knowledge or notice of her rights over the property, then he will take the label of ‘bona fide purchaser without notice’ and D will not be able to enforce her claim against the property in hands of X. Similarly, A, an owner of a house, contracts to sell it to B. A transfer deed is executed in favor of B, and B pays an advance amount as part of the consideration. A promises to have the transfer deed registered in B’s name after ten days. However, instead of getting it registered in the name of B, A, the very next day, sells the same house to C, through a written, attested and registered deed. The earlier contract in favor of B remains merely an agreement to sell, as without registered document, no right in the house will pass from A to B. When B comes to know that the property he had contracted to buy has been sold to C without his knowledge, he has two remedies in the alternative, First, to sue A for the breach of contract and damages and a refund of the amount that he had advanced and secondly, he can proceed against C, and ask him with the help of the court to execute a transfer of the property in his favour. In the latter case, again, the doctrine of ‘notice’ is used to decide the conflicting claims of B and C, who, it appears have been duped or defrauded by A, who now is no more a part of the situation. B and C, both, appear to be innocent parties and as it is, it would be difficult for the court to grant or deny the claim of B, but if it is proved before the court, that C bought the property with notice or knowledge that B had a prior claim over it, it would become his responsibility to honour B’s claim. In both these examples, one fact is apparent, that if it is proved that X in the earlier example and C in the present instance, admit that they knew of the claims of the respective litigants, X would incur a liability in the first case, and C would stand to lose the property in the second case. In other words, admittance of actual notice/ knowledge on their part would be to their disadvantage, and this is the reason why an admittance of notice is highly unlikely. KINDS OF NOTICE Notice can be of three types namely: (i) actual notice;1 (ii) constructive or implied notice; and (iii)notice to agent.2 Actual Notice ‘Actual notice’ means actual knowledge, where it can be shown that a person actually knew about it. It is a definite information given to, or obtained by a person, as against vague rumours, statements or casual comments given by strangers.3 For instance, a person attesting the execution of a deed cannot say that he did not know that the deed was being executed. The knowledge or notice must be definite. As mentioned, it should not be hearsay or rumours4 and should be of such a nature that it would be expected that a normal man would take it seriously.5 Only the knowledge of the parties interested in the transaction is actual notice regarding the transaction, and knowledge of strangers to the transaction is no notice of the transaction. Knowledge must be in relation to the transfer in question, and not general or

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irrelevant to the transaction.6 Constructive Notice ‘Constructive notice’ means knowledge that the court imputes on a person. A person may claim that he did not know a fact, but if the circumstances surrounding him are such, that as a reasonable prudent person, he ought to have known a fact, he will be deemed to know it. It is pertinent to note that the consequences of actual or constructive notice are identical. Constructive notices can be applied by the court in five cases: (i) when there is a willful abstention from making an inquiry;7 (ii) gross negligence; (iii)registration of the document/transaction; (iv)actual possession; and (v) notice to agent. Thus, a person is said to have notice of the fact when he actually knows the fact, or, when but for the wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it8. Rule of Caveat Emptor Constructive notice is the equity which treats a man who ought to have known a fact, as if he actually does know it. It presupposes, that in property transactions, a transferee ought to ascertain and verify certain facts for safeguarding his own interest. These facts may relate to the property and the transferor. The basic objective behind these inquiries and verification is to find whether the property sought to be obtained is free from charges or encumbrances, and whether the transferor is competent to convey a valid title to the transferee. The presumption is, that when a reasonable, prudent man enters the market to purchase property, or otherwise obtains an interest in immovable property in his favour, to obtain full value for his money, he would like to take the property free from charges or claims of other people over it. If the property is encumbered, the exact nature of encumbrances should be made clear to him. As the chances of deceit or misrepresentation on the part of the transferor cannot be ruled out, the duty is put on the transferee to be vigilant and to ascertain these facts himself, by making inquiries from concerned persons; by inspecting all the relevant documents relating to the property in possession of the transferor or even with the relevant statutory authorities. A failure to do that would result in the imposition of constructive notice of any fact that is ascertainable, by making inquiries or/and verification and content of the relevant documents relating to this property. Thus the rule of ‘caveat emptor’ or ‘buyer beware’ applies here. According to 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 have known it. The section therefore imposes a duty on the transferee to make relevant enquiries or search. What the transferee has to ascertain is:

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(i) whether the transferor is competent to transfer the property; (ii) whether there is a charge due over the property; and (iii)whether any other person has a temporary or permanent claim, right or title over the property. The rule is that the transferee must inspect or read carefully all relevant documents relating to the property. He cannot afford to be negligent or careless, as law would not listen to his plea that he forgot to read them or presumed that the papers would in order. Gross Negligence Gross negligence refers not to an ordinary negligence, but negligence so grave, that it cannot be relatable to the conduct of an ordinary reasonable prudent man. In these cases, even though a person claims that he had no knowledge of a fact, the court will attribute knowledge or notice to him. For instance if the transferee fails to read a noting on the paper that the property is subject to a charge, while the papers are in his possession, the court will not entertain his plea that no notice of the same can be attributed to him. Before purchasing the immovable property, the omission to search the registers kept in the registrar’s office may amount to gross negligence so as to attract the consequences which result from notice.9 But omission to inspect the title deeds of an adjoining property which the seller is under no obligation to produce for selling the present property, is not gross negligence.10 Omission of the purchaser to inquire about the arrears of taxes or other dues of the property, where it is situated in the municipal area may not amount to gross negligence in each and every case.11 Where the property is purchased at a court auction and was in the charge of an official receiver for the past five years, for which the taxes were not paid to the municipality, the purchaser cannot be imputed with constructive notice of the arrears of taxes.12 Where the bank returns the title deeds, which are the only security it has against the loan advanced by it, and the owner mortgages the same title deeds with another bank to secure an overdraft, the first bank is guilty of gross negligence in parting with the title deeds.13 Notice cannot be imputed on bona fide purchasers who purchase the property after due inquiries and have acted in good faith. If the owner agrees to sell the property to the plaintiff, but sells half of it to the first defendant and the other half to the second defendant, and the plaintiff comes to know about it only when an application is filed for mutation of names, the defendants are purchasers with value and without notice of the right of the tenant.14 Reasonable care taken by the purchaser is a question of fact depending on the circumstances of the case.15 Where the name of the transferor is recorded in the revenue records, no further inquiry is required to be made with respect to his title.16 Wilful Abstention from Making an Enquiry In case of wilful abstention from making an enquiry, there should be some starting point of enquiry, some hint, some suspicion that there is, or may be, something wrong somewhere and Page 26 of 49

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the transaction or situation demands some probe or investigation that may reveal the truth. If, in such cases, the transferee fails to investigate, the law will presume that he had an inkling of the fact, that something was wrong, but he had a fraudulent determination not to know the truth. Wilful abstention therefore hints at want of bona fide s as distinguished from mere omission to make enquiries.17 A person refusing to take a registered letter is imputed with constructive notice of its content and is not allowed to plead that he did not know about them.18 If a person omits to inspect the title deeds, the court shall presume he knows all the facts given therein. Thus, where the purchaser is shown the title deeds that mention that the property is partitioned property with certain conditions, the purchaser is imputed with the fact of the partition and its conditions and cannot be allowed to plead the ignorance of such conditions.19 For instance, a person, A, sells his property to B, and delivers possession to him for a consideration of ten lakh rupees. B pays a sum of five lakhs and promises to pay the balance five lakhs after six months. The fact that a balance of five lakhs has to be paid to A by B, is written on the title deeds. B fails to pay A, and mortgages this property by deposit of title deeds in favour of C. C fails to read the noting that B has to pay five lakhs to A, and pays the loan amount of five lakhs to B. B fails to repay the loan amount to C as well, and this property that is subject to the mortgage is brought up for sale. Suppose, the total amount fetched after sale is five lakhs. At this point of time, A puts up his claim of five lakhs rupees. The issue is— who would get this amount, A or C. C would get it as a bona fide transferee without notice of A’s claim over the property if he can show, that he had no actual or constructive notice of A’s claim over the property. However, the title deeds, on which a noting was made with respect to the balance of money to be paid by B to A, was in possession of C. In fact, it was on the basis of the title deeds that he had advanced the loan to B. As a reasonable prudent person, he ought to have read or examined the title deeds carefully, and if he fails to do that, he would be guilty of gross negligence. Secondly, if he indeed examines the title deeds, and finds the noting, this is the starting point of inquiry, which needs further investigation. If he does not probe into the matter, he would be guilty of willful abstention from making an enquiry. Here, even if he is satisfied by making enquiries from only B, and getting an incorrect answer from him, that would be insufficient, because as a reasonable prudent person, he should direct his enquires against a person, who was to be paid that amount, i.e., A in this case, and not against a person who was under an obligation to pay him, i.e., B. Here it was unconscionable on B’s part, not to disclose to C the fact that the balance amount was not paid, which omission led to the dispute between A and C. Here, C would be imputed with constructive notice of A’s claim over the property, as he is guilty of both gross negligence as well as willful abstention from making an inquiry, and A’s claim will be upheld.20 Similarly, A, the owner of ten bigas of land mortgages the land to B, by deposit of title deeds of the land and raises a loan of Rs. twenty lakh. Ten months later, he professes to sell two bigas of the mortgaged land to C; for a consideration of ten lakhs. C asks him for the papers relating to the property, and A shows him a photocopy of the title deeds. C asks for the original papers and A promises to show him by a week stating that they are kept in a locker for safe custody. C, satisfied with A’s answer, does not press for the originals, pays consideration and purchases the land. Later, B whose loan amount remains unpaid, causes the property to be Page 27 of 49

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sold, including the two bigas that were in possession of C. At this time C raises an objection, stating that he is the owner of these two bigas, as he had purchased them after payment of full consideration, and therefore, they cannot be sold in execution proceedings. To decide the claims of B and C, it has to be seen whether it can it be shown that C knew about B’s rights over the property. Can constructive knowledge or notice be imputed on him? He purchased the property on the strength of a photocopy of the title deeds, without even looking at the originals and therefore was guilty of gross negligence. Further, where even after his asking for the original title deeds, the transferor did not produce them, as a reasonable prudent man, he should have ascertained or verified, whether the title deeds were indeed with the transferor or not, and in not doing that, he was guilty of willful abstention from making an enquiry. Therefore, if he had probed further and insisted on entering the transaction only on the strength of the complete original papers, he could have detected the truth. As he had failed to do that, he would be imputed with constructive notice of the rights of the mortgagee, B, and will take the property subject to his rights. B’s rights therefore will be upheld here. However, if A had procured the title deeds from B and C had purchased the property after inspecting the title deeds, the situation would have been different.21 In Lloyd’s Bank v. PF Guzdar & Co.,22 the conflicting claims were of two banks, Bank A and Bank B, who were defrauded by X. The facts were as follows. X was a regular customer of Bank A. He deposited the title deeds of his house with them and secured an overdraft. He thereafter told the bank that in order to clear the overdraft, he wanted to sell the house, and for this purpose, he wanted to show the title deeds to the prospective purchaser. At the same time, he also requested the bank, not to disclose the fact of loan, as he apprehended that it would adversely affect the price he was hoping to fetch after the sale of the house. The bank gave back the title deeds to X, and he returned them to the bank after a week, as the sale could not be finalised. A month later, X repeated his request to the bank, and the latter again gave him the title deeds of the house. This time X took the title deeds of the house to Bank B, and secured a loan after depositing the same with Bank B. The loan was not paid and Bank B wanted to sell the property. Now Bank A claimed priority on the ground that the property was subject to mortgage with them. The question before the court was whether Bank B could be imputed with constructive notice of the right of Bank A over the property. This issue has to be examined in light of the duty of Bank B as a reasonable, prudent transferee. Can it be said that Bank B was guilty of willful abstention from making an enquiry or gross negligence? The answer to both these questions will be in the negative. If the title deeds of the house were in order, and deposited with the bank, and the bank, after securitisation of the same grants a loan, it cannot be said that they acted negligently, or that there was any starting point of inquiry that they needed to probe further. Rather, they had been vigilant and had taken care of their interests in a reasonable manner. On the other hand, it was Bank A, whose conduct was tainted with gross negligence, as they had parted with the very papers which were the security for the loan. In not looking after their own interests, they could not look upon the court for protection, as even the court cannot protect the interests of those who fail to do it themselves by being grossly negligent. Similarly, where the property is mortgaged to a bank by deposit of title deeds and the mortgagor later sells the property to a lady without disclosing the fact of the mortgage, and she Page 28 of 49

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does not insist on inspecting the title deed, the buyer wilfully abstains from making an inquiry and will be imputed with constructive notice of the mortgage.23 Abstention from inquiry for title deeds at a place where one knows that mortgages by deposit of title deeds are legal and usual, amount to notice of mortgage.24 The presumption of the court in such cases would be that the person imputed with notice has designedly or purposely abstained from making an inquiry into the contents of the deed with the intention of avoiding taking its notice.25 Constructive notice is imputed only in situations where a person has means of knowing a particular fact, but has failed to know it. There exist circumstances which ought to put him on an inquiry, which, if prosecuted, would have led to a discovery of it.26 However, if a person has no means or opportunities to obtain information about something, notice cannot be imputed on him about that thing. Thus, where the purchaser does not have the slightest idea or suspicion about any earlier agreement entered into, far away from the place where the property is situated, it cannot be said that there was any willful abstention on the part of the purchaser.27 Duties of the Transferee The law demands a careful and vigilant conduct on the part of the transferee to verify the correctness of the title, and the possibility of existence of a charge over the property. For this, certain rules have to be kept in mind, which are as follows: (i) The transferee must satisfy himself with respect to the competency of the transferor to transfer the property; as the rule is, no one can pass a better title than what he has. If the transferor is not competent to transfer the property, the transferee will not get a good title. (ii) The transferee must examine all the relevant documents relating to the property and the transaction. Each and every relevant paper is to be inspected, as the rule is ‘Actual notice to a deed is constructive notice of its contents’. If the transferee has in his possession a document relating to the property, he will be deemed to know about its contents, and if a liability on the property is ascertainable from a particular document, he will be imputed with constructive notice of the same. (iii)The transferee must satisfy himself, as to whether there is a charge due over the property. One way of doing this is to go beyond the present transaction and find out how and from whom the present transferor had acquired the property. If he had purchased the property, and that person is available, he can enquire from him about the possibility of a charge. He can also inspect those documents with the help of which the property was acquired. For example, if the transferee knows that the transferor had acquired the property through a will; he must examine the will to find out the possibility of the existence of a charge. In Bank of Bombay v. Suleman,28 a person died and in his will, left his house and land to his sons from his first wife. He also left behind four sons from his second wife, who had not attained majority. In his will, he had provided that the sons from the first wife were to get the land and the house, but they were also under an obligation to pay R s. 30,000 to the sons from the second wife within a period of six months from the date of operation of the will, and this Page 29 of 49

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sum was a charge on the land and the house. The sons from the first wife did not pay this amount, and in the course of their business, mortgaged the land and the house to the bank by deposit of title deeds. The bank advanced a loan of Rs. 52,000 and when the sons failed to pay the loan amount, brought the property up for sale. The sons from the second wife now contended that their claim, over the land and the house had precedence over the bank’s claim, as the later would be deemed to have constructive notice of the same. The bank pleaded ignorance of the knowledge of the existence of this charge as a copy of the will, was not amongst the documents deposited with the bank. The court held that if the bank had made enquiries as to how the sons had derived the title to the property, it would have known about the will and an inspection of the will could have brought them the knowledge of the charge. In not doing so, they were guilty of wilful abstention from making an enquiry, and therefore were imputed with constructive notice of the charge in favour of the sons from the second wife, who, it was held, had priority of claim. Actual notice to a deed is constructive notice of its contents Actual notice of a deed is constructive notice of all the material facts affecting the property, which appear on the face of the deed or can be reasonably inferred from its contents.29 It is also notice of all documents recited in the deed, and which an examination of the deed would have disclosed, provided the deed formed part of the chain of title and so necessarily affects the property.30 It means that where a person has actual knowledge of the existence of a document relating to the property in question, he would be imputed with constructive notice of not only the contents of this document, but also of all the relevant papers that can be ascertained after reading the main document as well. Thus, where, on a partition of the family property the deed contains a mutual covenant of a right of pre-emption in favour of either of the brothers, should any one of them want to sell the property in the future, and one of them sells his share by a deed which describes as his share as acquired under a deed of partition, the purchaser has constructive notice of the right of pre-emption.31 Status of Municipal Taxes On the question of the liability of a subsequent purchaser to pay past or arrears of municipal taxes, the judicial opinion was divided till it was settled by the apex court in Ahmedabad Municipal Corporation v. Haji Abdul Gafur Haji Hussenbhai.32 An earlier full bench decision of Allahabad High Court in Nawal Kishore v. The Municipal Board, Agra 33 held that the general principal is that all intending purchasers of the property in municipal areas where the property is subject to a municipal tax, which has been made a charge over the property by statute, should have a constructive knowledge of the tax and of the possibility of some arrears being due, with the result that it becomes their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be due, and if they fail to make such enquiry, such failure amounts to a wilful abstention or gross negligence within the meaning of s. 3 of the TP Act. Similarly, in Municipal Board, Lucknow v. Lal Ramji Lal,34 the same court reiterated that it must be presumed that a person who buys a house situated in a municipal area, is acquainted with the law by which a charge is imposed by the municipal Act upon the property for payment of municipal taxes. The charge having been expressly imposed Page 30 of 49

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by the municipal Act upon the property for payment of municipal taxes, the municipality was entitled to follow the property in the hands of a transferee who had not cared to make any enquiry as to whether the payment of taxes was in arrears, and realise the amount from the sale of the property. However, the same court in Municipal Board, Cawnpore v. Roop Chand Jain,35 observed that when a bona fide purchaser takes property he buys free of all charges of which he has no notice actual or constructive. He is said to have constructive notice when ordinary prudence and care would have impelled him to undertake an inquiry which would have disclosed the charge. Here, the court took note of the fact that the municipality does not maintain a public register with the record of arrears of taxes that is available for public inspection. Further, here the Kanpur Municipality had allowed the arrears to accumulate for around eleven years and the court therefore observed that no intending purchaser could have presumed, in absence of special intimation by the municipality, that taxes might be due on the property. The court, therefore, concluded that no constructive notice of arrears of municipal taxes could be imposed. In Haji Abdul’s case,36 a person A, who was the owner of certain properties ran into financial difficulties in 1949, and was adjudged insolvent in 1950, whereupon his property vested in the Office Receiver appointed by the court. This property was subject to a mortgage, and was sold at a court auction to B, in 1954. Meanwhile in 1951, the Official Receiver received a bill for approximately Rs. 630 with pertaining to taxes, from the municipality. He sought the court’s permission to sell the property to pay the taxes, which was granted to him by the insolvency court. However, after that neither the official receiver took any action with respect to payment of taxes, nor did the municipality press for the same. It is interesting to note, that during all this time the property in question was in occupation of tenants and they were paying rent to the Official Receiver. At the time of the auction of the property, B, the purchaser, made inquiries from the Official Receiver about the charges due over the property, but was not given any information about the arrears of taxes. Soon after he purchased the property he received a notice from the municipality for the arrears of taxes amounting to around R s. 540, and thereupon, this property was attached and municipal corporation threatened to sell the property. B filed a suit in the court for a declaration that he was the owner of the property, and that the arrears of municipal taxes due before he purchased the property, were not recoverable by attachment of the property in his hands. He also sought a permanent injunction against the corporation from attachment of the property, and a declaration that the warrant of attachment was illegal. His main contention was that he was a bona fide purchaser without any notice, actual or constructive, of the fact of existence of tax arrears and therefore, could not be made liable to pay the same. The municipality, on the other hand contended, first, that in auction sales, there is no warranty of title and the purchaser takes the property subject to all the defects of the title and the doctrine of caveat emptor applies to him. This however was not applicable to the present case, as this was a case involving a judgment debtor. The second contention was that as per s. 14(1) of the Bombay Provincial Municipal Corporation Act, 1919, the taxes constitute a charge over the property and are recoverable, if need be, from the sale of the property. However, a charge can be enforceable against a person only when he has actual or constructive notice of the same, therefore the municipality contended, that where a person Page 31 of 49

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purchases property in a municipal area, and knows that taxes are to be paid to the municipality he will be deemed to have constructive notice of the fact, that arrears might be due, and therefore it becomes his liability to pay them. The Supreme Court, after analysing a bulk of conflicting judicial decisions of several high courts and the facts of this case, held that constructive notice could not be imputed on B. He could have no reasonable ground for assuming that there might be arrears, as he had made general inquiries from the person (Official Receiver) who had charge of the property, but was not given any information about the same. Secondly, the property was in occupation of the tenants, and he could reasonably assume that dues if any might have been paid out of the rent. Thirdly, accordingly to the court, the conduct of the municipality itself was surprising. They did not pursue the matter after sending a notice to the official receiver. This case that took sixteen years, was decided in favor of B, with the court holding that he was not liable to pay the arrears of taxes amounting to R s. 543. The court, comparing the conduct of both the parties before it, commented that the municipal corporation was far more negligent and blameworthy than the purchaser. REGISTRATION AS CONSTRUCTIVE NOTICE The Transfer of Property Act, 1882, Section 3 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 the property is not all situated in one sub - district, or where the registered instrument has been registered under sub - section (2) o 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub - Registrar within whose sub - district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. GENERAL PRINCIPLE As has already been mentioned, in matters relating to transfer of property, the parties have to observe three mandatory formalities. The transfer must take place with a written document that is signed by the transferor, is properly attested and is registered. These formalities must be observed, unless the property is of nominal value (less than Rs. 100) or is let out for less than a Page 32 of 49

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year, or is mortgaged either by an equitable mortgage or for a loan of less than Rs. 100. Unless all the formalities are complied with, no right will pass from the transferor to the transferee. It must be noted here that all the formalities except registration are treated as private affair, and registration is the only formality that makes a transfer from a purely private to a public affair. In transfers of property, as registration by and large is a mandatory requirement, more so when it is transfer inter vivos, the duty of a prospective transferee is to search the registers and ascertain the registered transactions that had taken place in the past, relating to this particular property. A failure to inspect the registers will result in the imputation of constructive notice with respect to all the transactions that are required, by law, to be compulsorily registered.37 All purchasers, therefore, are under a legal obligation to exercise diligence in examining the title recorded in the register to avoid uncertainties and the risk of perjury in taking parole evidence as to whether the omission to search the register should in any particular case be attributed to gross negligence.38 For instance, A sells the house by a registered document to B. He later enters into a contract with C to sell him the same house. Law imposes a duty upon C to inspect the registers at the Registrar’s office, and if he does that, he would come to know about the sale in favour of B. A failure to inspect the register will be detrimental to the interests of C, as he would be imputed with constructive notice of the registered transaction. LEGISLATIVE HISTORY The statutory provision providing that registration of a compulsorily registrable document operates as constructive notice was introduced in the Act by the amending Act of 1929. Though the Registration Act was promulgated in 1908, and provided for compulsory registration for transfer of immovable property (except as aforesaid when it is of a nominal value or is to let out for a period of less than a year), yet whether registration of a transaction would or would not amount to notice continued to be a subject of judicial controversy till the Privy Council in Tilakdhari Lal v. Kundan Lal,39 held that as the TP Act did not specifically provide it as a principle, registration would not, per se, amount to constructive notice and this issue would vary depending upon the facts and circumstances of each case. The view accordingly to Bombay and Allahabad High Courts was that it would amount to notice.40 The Calcutta High Court, on the other hand, took the view41 that this issue has to be decided keeping in view the facts and circumstances of each case. Thus, in some cases they held that it amounted to constructive notice, while in others it was held that there was no duty on part of the prospective transferees to inspect the registers. The Madras High Court held that it would not amount to notice.42 In 1929, by an express amendment, Explanation I was added to the definition of notice in s. 3. The effect of such inclusion was that the decision of the Privy Council is no longer good law. Conditions for Application The law is subject to the following conditions. (1) The instrument has been registered and registration completed in the manner provided in the Registration Act, 1908;43 Page 33 of 49

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(2) The instrument or memorandum has been duly entered or filled in, as the case may be, in books kept under s. section 51 of the Registration Act, 1908 and; (3) The particulars relating to transactions to which the instruments relate have been correctly entered in the index(s) kept under s. section 55 of the Registration Act, 1908.44 Constructive notice will not be imputed unless the document is registered, in accordance with the manner provided under the Registration Act, 1908 and the instrument or memorandum has been duly entered in the books/registers and particulars are correctly entered in the index(s). Where the instrument has been registered in accordance with the provisions of the Registration Act, 1908, a party cannot say he searched the register and could not find the relevant portion; he would take the consequences of his want of diligence.45 Thus, registration of a mortgaged deed itself is sufficient notice to the persons dealing subsequently46 with the mortgaged property, particularly where the debtor is a notorious man and his dealings with the mortgagee were very well known in that locality.47 Thus, where the mortgagee effects a submortgage of the property with a registered instrument, the registration of the sub mortgage would not amount to constructive notice to the original mortgagor, who, in ignorance of the sub mortgage, makes the payment to the mortgagee.48 However, the mere fact that a person resides at a place where the deed is registered is insufficient to fix him with notice of the deed. Thus, where an agreement provides that defendant’s movable and immovable properties will be subject to a charge of the money due to the plaintiff, and he subsequently mortgages them to C, the plaintiff has no right to contend that he cannot do so. C would be allowed to plead bona fide purchaser having no notice.49 The purchaser would not be affected with constructive notice of the registered agreement restricting the use of the property, if it is shown that the agreement was not indexed in relation to the property sold.50 A mere defect in the procedure would not invalidate registration,51 but misplaced entries will not operate as constructive notice.52 No Notice where Registration is not Compulsory Where the registration of a document is not compulsory under the Registration Act, 1908,53 its registration would not amount to constructive notice.54 Documents that are compulsorily required to be registered are as per s. 54; paras 2 and 3 specify that in case of tangible immovable property, of the value of Rs. 100 or more, or in case of a reversion or intangible thing, can be made only by a registered instrument and in case of tangible immovable property of a value less than Rs. 100 can be made by either a registered instrument, or by delivery of property. Thus, if property of less than Rs. 100 were sold by a registered document, its registration would not amount to constructive notice, as it is not mandatory in law. According to s. 59, where the principal money secured (load) in a mortgage is Rs. 100 or more, a mortgage other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgager, and attested by at least two competent witnesses. Similarly, for a transfer of immovable property by way of a lease under s. 107, it is laid down that a lease of immovable property from year to year, or for any term exceeding one year, or Page 34 of 49

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reserving a yearly rent can be made only by a registered instrument. In case of all transfers of immovable property by gift, transfer, according to s. 123, must be affected by a registered instrument signed by or on behalf of the donor (transferor), and attested by at least two witnesses. In case of gifts of movables, there is an option to execute it either by way of a written attested and registered document or by a simple delivery of possession. Where registration of a document is not mandatory but only an option, then registration would not operate as a constructive notice. For instance, a partition deed is not required to be registered, in fact, it is not required by law to be in writing, as is shown in the following example. A joint family comprises of a father and his son. They together own a land and a house that the father manages, as the karta. A partition is effected and the land goes to the son while the father keeps the house. The partition deed is registered. Later, the father sells the land to B. B is supposed to be vigilant as a prospective transferee, and though the elements of gross negligence and willful abstention from an inquiry have to be looked into independently, mere registration of partition deed would not amount to constructive notice. Thus, registration of testamentary instruments;55 document pertaining to transfer of movable property;56 equitable mortgages;57 or gift of property given to the daughter by way of pasupu kumkuma 58 would not amount to constructive notice. In Harendra Nath Dutta Roy v. Rajendar,59 a partition took place between four brothers, by a written attested and registered deed. The terms of partition gave preferential right to purchase property to the former co-owners (called a right of pre-emption), if any one of them decided to sell his respective share. These terms could have been ascertained by inspecting the partition deed. One of the brothers, without consulting the other co-owners, sold his share to a stranger, A. A suit of pre-emption was filed by a former co-owner B, who also claimed that A should be deemed to have constructive notice of the pre-emption clause, on the ground that since the partition deed was registered its mere registration would amount to a constructive notice of its contents as far as A was concerned. The court negativated his contention on the ground that a partition may be entered even orally, and there is no provision in any law requiring the transaction of partition to be registered. The fact is that if it is reduced to writing and registered, its registration would not amount to constructive notice, as its registration is not a mandatory requirement in law. Hence, the court held, that registration of partition deed would not amount to constructive notice on A. Similarly, A, mortgages her jewellery to B, with the help of a written and registered deed but retains possession of it, with an understanding that if within 10 years she fails to repay the amount, B would have a right to recover the loan amount by the sale of this jewellery. A sells the jewellery to C, for full consideration. Though the mortgage deed is registered, its registration would not amount to constructive notice, as mortgage of movables is not required by law to be compulsorily registered.60 Registration as Constructive Notice only for Subsequent Transferees Registration as constructive notice operates only for subsequent transferees and not for former transferees. It is implicit from the use of the words ‘any person acquiring such property or any part of or share or interest in such property is deemed to have notice of such instrument as from the date of registration’. For example, A contracts to sell a house to B for a sum of Rs. 10 lakh, accepts an advance of two lakhs from him but then sells it to C with a written, attested Page 35 of 49

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and registered document. In a litigation between B and C for this property, C cannot take the plea that as the transaction in his favour is through a registered document, B ought to have constructive notice of the same, because B is a prior transferee and registration as constructive notice would not operate on prior transferees. However, in the same case, if after the conclusion of the contract between A and C, A sells the same house to D, then C would be entitled to plead registration of the transaction as constructive notice as against D as D is a subsequent transferee. Time from when Registration would Operate as Constructive Notice The time from when registration of a document that is required by law to be compulsorily registrable, depends on the location of the property. If the property is situated in the same district where the document is also registered, it operates as constructive notice from the same date. However, if it is situated in several sub-districts or it has been registered in another subdistrict, then its registration would operate as constructive notice from the date when the memorandum was received in the district where it is situated and filed by the sub-registrar of the sub-district where the property is situated.61 ACTUAL POSSESSION AS CONSTRUCTIVE NOTICE The Transfer of Property Act, 1882, Section 3 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. GENERAL PRINCIPLE Where a person other than the transferor is in actual possession of the property, it behoves a prospective purchaser to ascertain what all rights the person in actual possession really has in respect of the property, and if he omits to do so and if equities exists in favour of the person in possession, the prospective purchaser would be bound by them.62 When a person purchases property from the owner knowing that it is in possession of another, he is under a duty to inquire into the nature of that possession and in the absence of such inquiry, knowledge of the title under which the possession is held should be attributed to the purchaser.63 Thus, it is the duty of the subsequent purchaser to inquire from the persons in possession as to the precise character in which he was in possession at the time when the subsequent sale transaction was entered into.64 For instance, A owns a house and gives it to B for a period of five years on rent, with the help of a written attested and registered lease deed. A short time before the lease is due to expire a situation arises, where A, the landlord is in need of money and asks for help from B. They reach an understanding whereby B gives A the required money, and A agrees to allow B to occupy the house for another period of five years. This second agreement is within the knowledge of only A and B, and is not recorded anywhere by way of a public document. Page 36 of 49

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However, soon after the completion of the initial lease, A sells the property to C, for consideration. C, as a prudent purchaser, inspects the registers at the registrar’s office, but fails to inquire from the tenant, in what capacity and for how long would he occupy the premises. He would be imputed with constructive notice of the right of B to stay in the premises for another period of five years, as he is deemed to direct his inquiries to the actual possessor of the property and not be satisfied by the answers given by the owner (transferor). Similarly, A, the owner of a house rents it to B by a registered lease deed for 10 years. By the end of the term of the lease, A enters into another contract with B, whereby he agrees to sell it to B for a consideration that is agreed upon as between the parties. This contract is not registered. Soon thereafter, A sells the house to C. C inquires about the tenant, and A assures him by showing the original registered lease deed that his tenancy is going to expire within 10 days. C, who knows that the property is in occupation of a tenant, does not inquire from the tenant, his rights/title over the property, pays consideration to A, and purchases it. C will be deemed to have constructive notice of the title of B as the future owner of the property and in a litigation involving B and C, B’s rights will be upheld. This rule is based on the principle of an English case Daniels v. Davison,65 and followed by the Privy Council in National Bank v. Paul Hamilton Joseph,66 wherein Lord Eldson said, ‘where there is a tenant in possession under a lease or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession’. If there is a tenant in possession, the purchaser is bound by all the equities which the tenant could enforce against the vendor and such equities extend not only to the interest connected with the tenancy but also to the interests under the actual agreement.67 In order to operate as constructive notice, possession must be actual possession,68 and not constructive possession.69 A purchaser,70 or a permanent lessee71 of a village is effected with constructive notice of the right of the cultivating tenants, when they fail to make inquiries about their rights over the land. The occupation of the property by the tenant ordinarily affects one who would take a transfer of the property with notice of that tenant’s rights, and if such person chooses to make no inquiry from the tenant, he cannot claim to be a transferee without notice72 and the suit for possession from original tenant would fail.73 Thus, notice of a tenant in possession is constructive notice of his right to claim possession under doctrine of part performance in absence of due inquiries.74 In Shobha Sadanand v. Vasantibai,75 the tenant occupied a portion of the property and the subsequent purchaser lived in the same building. The tenant, on the basis of the oral agreement of sale made with the owner of the house, made substantial improvements in his portion, which the purchaser of the property could not have failed to observe. The Karnataka High Court held that in such circumstances, the purchaser could not claim to be a purchaser without notice of the title of the tenant over the property. Again, in Ram Niwas v. Bano,76 a person A, took a shop on rent from B, and subsequently entered into a contract for the purchase of this shop for a consideration. He paid part of the consideration on the date of the agreement, and undertook to pay the remaining amount on the date of the execution of the sale deed. Six months later, however, B sold the shops to C, for a sum of Rs. 20,000. A filed a suit for specific performance of the contract, and C resisted it on Page 37 of 49

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the ground that they were bona fide purchasers for value and without any notice of the claim of A. Therefore, the registered sale deed in their favour cannot be cancelled and relief of specific performance could not be granted in favour of the tenant. On the question of whether C had notice of the rights of A over the property or not, the court observed that A, at the relevant time was in actual possession of the property, and therefore C should have made inquiries from A about his title over the property. The court observed that a person may not have actual knowledge of a fact but he may have notice of it. If the purchasers (C) have relied upon the assertion of the vendor (B) or on their own knowledge and abstained from making inquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II of s. 3 of TP Act.C’s right over the property thus was subordinate to A’s rights. In HN Narayanaswamy Naidu v. Deveeramma,77 a son and his mother sold the house to B. It was a conditional sale, with a stipulation that if within a period of six and a half years, the seller would pay the entire consideration to B; B would reconvey the property back to them. A little later, however, for a consideration, the seller agreed to release this right of conveyance on favour of B, with the help of an unregistered agreement. B took possession of the properties and after the execution of release deed, carried major repairs at his costs. The sellers (mother and son) however, sold the right of reconveyance stipulated under the original sale deed to a person D, without disclosing to him, that it has already been released in favour of the buyer B. D, claiming to be a bona fide purchaser of the reconveyance rights without notice wanted to enforce the same. Since B was in actual possession of the property, the court held that D had a duty to direct his inquiries to B with respect to B’s rights over the property and having failed to do that, he would be imputed with constructive notice of the release deed executed by the sellers in favour of B. Possession of a Small Portion of the Property The principle of constructive notice does not apply in cases where the person who claims on basis of prior agreement is in possession of a small portion of the property,78 as there is a limit to which the rule laid down in Daniels v. Davision 79 can be extended.80 Where the plaintiff was in occupation of a small portion of the house and the other two persons occupying the house included the owner of the house also, the purchaser would not be imputed with constructive notice of the title or right of the plaintiff as the latter was occupying a small portion of the property. The court held that the purchaser was not bound to make inquiries from every tenant of the house, especially when the owner himself was occupying a portion and inquiries had been made from him.81 In Kesharmull Agarwala v. Rajendra Prasad,82 there were three persons in occupation of a house. The front portion, called the shop portion was occupied by the first tenant. The middle portion was occupied by the owner and his family, and the rear portion was occupied by the second tenant, a doctor. The owner sold the entire house to C, and one of these tenants who claimed a prior contract with the owner, sought priority of rights on the ground that his actual possession would amount to constructive notice of his rights on part of the transferee. The court rejected his contention and held that the purchaser was not bound to make inquiries from every tenant in occupation of a portion of a house, especially when the owner himself was occupying a portion and inquiry had been made Page 38 of 49

(IN) Poonam Pradhan Saxena : Property Law

from him. In Md Mustafa v. Haji Md Isa,83A, was the owner of a building that comprised seven smaller more or less identical portions. Each one of them was occupied by a different tenant, one of whom was B. According to B, A had contracted to sell him his portion of the property in lieu of the loan that he had advanced to A. However, instead of selling it to B, A sold the entire building to C and directed all the tenants, including B, to start paying rent to C. B claimed that as he was in actual occupation of his portion, C as a prospective purchaser was bound to make inquiries from him about his rights and a failure to do so would result in the imputation of constructive notice on him. The court held that C, as a bona fide purchaser, after having made inquiries from the owner, was not duty bound to inquire from each and every tenant in occupation of a fraction of the property. Hence, no constructive notice can be imputed on him of his rights. In a matter before a full bench of the Patna High Court in Hari Charan Kuar v. Kaula Rai,84 the claimant was in possession of a little more than one-third of the total property. The total property was sold, including the portion of the claimant, to the transferee, after entering into a contract with him. The claimant contended constructive notice on part of the transferee. The court held that since the claimant was in occupation of a small portion of the property, there was no duty on part of the transferee to inquire from him about his rights. For instance, A sells his house to his tenant B, and starts staying in the same house as B’s tenant. He then sells this house to C. C will not be imputed with constructive notice of the title of B, as B was not in actual possession of the property.85 Bona Fide Purchasers Making due Inquiries Notice cannot be imputed on bona fide purchasers who purchase the property after due inquiries and have acted in good faith. Where the tenant is not in actual possession of the property on the day of execution of the sale deed in favour of the purchasers, and the contract to sell is kept a well guarded secret; the owner agrees to sell the property to the plaintiff but sells half of it to the first defendant and the other half to the second defendant, the defendants are purchasers with value and without notice of the right of the tenant.86 Thus, actual possession, in order to operate as constructive notice, must satisfy the following conditions. (i) First, the property should be in possession of a person other than the owner/transferor. Constructive notice would be imputed only with respect to the title of the actual possessor of the property. For instance, where the owner of the house sells it to the tenant through an unregistered sale deed, but remains in possession of the house as the tenant of the new owner, and later sells the same house to another person, C through a registered sale deed, C cannot be imputed with the constructive notice of the title of owner over the property as he is not in actual possession of the property.87 (ii) Secondly, the possession must be actual and not constructive.88 For example, A grants a lease of his premises to B, and later contracts to sell the same to him. B has sub-let premises to C. A then sells it to D. Here D would not be imputed with constructive notice of the right of B, as he is not in actual possession of the premises. (iii)Thirdly, the actual possessor should be in lawful occupation, and should be in occupation of the whole of the property or a substantial portion of it. If he is in Page 39 of 49

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occupation of a small portion of the property, then there is no duty on the prospective purchaser to inquire from him, his rights and titles over the property.89 The rules also take into account practical convenience. It may not be feasible for the purchaser to inquire from each and every tenant, howsoever small his portion may be, and therefore when a person is in occupation of a small portion of the property, his possession would not operate as a constructive notice of his rights over the property. NOTICE TO THE AGENT The Transfer of Property Act, 1882, Section 3 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. He who acts through another is deemed to act in person, and the agent stands in the place of his principal with reference to the business for which he is agent, so that his acts and knowledge are the acts and knowledge of his principal.90 It is a rule of law that imputes the knowledge of agent to the principal, for the agency extends to receiving notice on behalf of the principal of whatever is material.91 However, for a purchaser to be affected with constructive notice through his solicitor, the latter must have actual notice.92 LEGISLATIVE HISTORY The language of this provision was worded differently prior to 1929. It said that a person is said to have notice of a fact, when information of the fact is given or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872. The term ‘given to or obtained by’ signified a definite information on part of the agent or actual notice. It therefore did not include a constructive notice on part of the agent. Thus, the circumstances under which an agent could have been imputed with constructive notice were not sufficient to have the same imputed on the principal. In other words, a negligence on part of the agent or willful abstention from making an inquiry would not make the principal liable, and it was only in those cases where the agent was given or he himself had received information, that notice of it was imputed on the principal. Explanation III of the present Act amended the definition. It deleted both, the term ‘given or obtained’, as well as the reference to the Indian Contract Act, 1872. Scope of Imputation of Notice The rule that notice to agent amounts to notice to principal, applies provided the following conditions are satisfied. Page 40 of 49

(IN) Poonam Pradhan Saxena : Property Law

(1) Notice should have been obtained by the agent during the course of agency. Where the knowledge was acquired by him prior to his acting as an agent of another, such knowledge cannot be imputed on the principal, (2) It must have been received by him in his capacity as an agent, (3) It must have been received by him in the course of agency business, (4) It should have been a matter that is material to the agency business; and (5) It should not have been fraudulently concealed by the agent, from the principal.

1.

Except when property is of nominal value or is let out for a short duration.

2.

See The Transfer of Property Act, 1882.

3.

Mata Din v. Kazim Husain, (1891) ILR 14 Cal 241; Bans Gopal v. Banerji, AIR 1949 All 433.

4.

Jones v. Skinner, (1835) 5 LJ Ch 87, 90.

5.

Ramshankerlal v. Ganesh Proshad, (1907) ILR 29 All 385.

6.

Commr. v. Lakshindra, AIR 1954 SC 282 [LNIND 1954 SC 69].

7.

Muchiram v. Ishan Chander, (1894) ILR 21 Cal 568; Rudra Prakash v. Krishna, (1887) ILR 14 Cal 241.

8.

Narasingerji v. Panaganti, AIR 1924 PC 226.

9.

Indar Sen v. Naubat Sen, (1885) ILR 7 All 553.

10. Sunil Sidharthbai v. Commr of Income Tax, AIR 1986 SC 368 [LNIND 1985 SC 303]. 11. Gulam Husein v. Fakir Mahomed, AIR 1947 Bom 185; Umesh Chander v. Jahoor Fatima, 17 IA 201. 12. Ma Yait v. Official Assignee, AIR 1930 PC 17. 13. Indraloke Studio Ltd. v. Santi Debi, AIR 1960 Cal 609. 14. The General Clauses Act, 1897, s. 3(26). 15. The Registration Act, 1908, s. 2(6). 16. See Transfer of Property Act, 1882, s. 3. 17. TA Sankuni v. BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292]; Moti Singh v. Deoki Singh, AIR 1936 Pat 46. 18. Chandi v. Sat Narain, AIR 1925 Oudh 108. 19. Sheikh Jan Mohammad v. Umanath Mishra, AIR 1962 Pat 440; Moti Singh v. Deoki Singh, AIR 1936 Pat 46. 20. TA Sankunni v. BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292]. 21. Suresh Chand v. Kundan, 2000 (7) SCALE 620. 22. Shiv Dayal v. Pattu Lal, AIR 1933 All 50. 23. Rajendra v. Malhoo Khan, AIR 1929 Oudh 93. 24. Vellayappa Chetti v. Subramania Chetti, AIR 1927 Mad 137 [LNIND 1926 MAD 316]. 25. Ram Kumar v. Krishna Gopal, AIR 1946 Oudh 106, 107. 26. Baijnath v. Ramadhar, AIR 1963 All 214 [LNIND 1962 ALL 179]. 27. Baijnath v. Ramadhar, AIR 1963 All 214 [LNIND 1962 ALL 179]. 28. Ram Kumar v. Krishan Gopal, AIR 1946 Oudh 106. 29. Kunhikoya v. Ahmed Kutty, AIR 1952 Mad 39 [LNIND 1951 MAD 177].

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(IN) Poonam Pradhan Saxena : Property Law 30. Pirthidin v. Ramlal, AIR 1926 Oudh 136; see also Krishna Rao v. Babaji, (1900) ILR 24 Bom 31. 31. TA Sankuni v. BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292]. 32. State of Himachal Pradesh v. Motilal Pratap Singh, AIR 1981 HP 8 [LNIND 1980 HP 27]. 33. AIR 1958 SC 532 [LNIND 1958 SC 30]: (1959) SCR 265 [LNIND 1958 SC 28]. 34. AIR 1981 HP 8 [LNIND 1980 HP 27]. 35. AIR 1986 All 182 [LNIND 1985 ALL 285]. 36. AIR 1956 All 680 [LNIND 1956 ALL 46]. 37. AIR 1931 All 392. 38. AIR 1953 SC 108 [LNIND 1952 SC 100]. 39. AIR 1955 NUC 5612 (Cal). 40. AIR 1985 SC 1293 [LNIND 1985 SC 400]: (1985) Supp SCC 280. 41. AIR 1938 All 115. 42. Imamali v. Rani Priyabati, AIR 1937 Nag 250. 43. Raja Devi v. Mohd Yaqub, AIR 1925 All 411. 44. Atma Ram v. Dama, (1897) 11 CPLR 87. 45. Kalka v. Chandan, (1888) 10 IA 20. 46. Chhotabhai v. Madhya Pradesh, AIR 1953 SC 108 [LNIND 1952 SC 100]; see also Mohanlal v. Commr IT, AIR 1949 PC 311, wherein it was held that a right to cut pick and carry away leaves is a right in movable property and does not create any interest in the land. 47. Mahadeo v. State of Bombay, AIR 1959 SC 735 [LNIND 1959 SC 29]. 48. Kamal Singh v. Kali Mahton, AIR 1955 Pat 402. 49. Kalka v. Chandan, (1888) 10 IA 20. 50. Manoharlal Rameshwardas v. State of Madhya Pradesh, AIR 1959 MP 120. 51. Ibid. 52. Mahabir Prasad v. Enayat Elahi, AIR 1951 All 608 [LNIND 1950 ALL 362]. 53. As to invasion of air space above the land, a distinction is drawn between structures standing on the land of a neighbour and overflying aircraft, balloons, bullets or missiles: Anchor Brewhouse Developments Ltd v. Berkley House (Docklands Developments) Ltd., (1987) 2 EGLR 173 at 175–176. Despite earlier controversy as to whether invasion of air space gives rise to a cause of action in trespass or only in nuisance, in which case damage is required to be proved, it now appears that any invasion by a structure standing on the land of a neighbour is a trespass; Anchor Brewhouse Developments Ltd. v. Berkley House (Docklands Developments) Ltd., supra; Wandsworth District Board of Works v. United Telephone Co., (1884) 13 QBD 904 (CA); Gifford v. Dent, (1926) WN 336; Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd., (1957) 2 QB 334, (1957) 2 All ER 343; Ward v. Gold, (1969) 211 Estates Gazette 155. See also Pickering v. Rudd, (1815) 4 Camp 219, but see Kenyon v. Hart, (1865) 6 B&S 249 at 252 per Blackburn J arguendo. Otherwise, the rights of an owner in the air space above his land are restricted to such a height as is necessary for the ordinary use and enjoyment of that land; Berstein of Leigh (Baron) v. Skyviews & General Ltd., (1978) QB 479, (1977) 2 All ER 902. It would seem that the cause of action for infringement of those rights would also be in trespass; Berstein of Leigh (Baron) v. Skyviews & General Ltd., supra, but see also Clifton v. Viscount Bury, (1887) 4 TLR 8. 54. The extent of its legal signification has usually been expressed in the maxim cujus est solum, ejus est usque ad coelum et ad inferos (to whom belongs the soil, his it is, even to heaven and to the middle of the earth). A conveyance of land prima facie includes everything directly beneath the surface of the land conveyed and the space directly above; Laybourn v. Gridley (1892) 2 Ch 53; Corbett v. Hill, (1870) LR 9 Eq 671; Wandsworth District Board of Works v. United Telephone Co., (1884) 13 QBD 904, 915 (CA); Kelsen v. Imperial Tobacco Co. (of Great Britain and Ireland) Ltd., (1957) 2 QB 334, (1957) 2 All ER 343 (air space above); Grigsby v. Melville, (1973) 3 All ER 455, (1974) 1 WLR 80 (CA); Straudley Investments Ltd. v. Barpress Ltd., (1987) 1 EGLR 69, 70 (CA) (air space above); Davies v. Yadegar, (1990) 1 EGLR 71 (CA) (air space above); Haines v. Florensa, (1990) 1 EGLR 73 (CA) (air space above). For a critique of the cujus est solum maxim; see Railways Commr v. Valuer-General, (1974) AC 328, 351, (1973) 3 All ER 268, 277 (PC). 55. Railways Commr v. Valuer-General, (1974) AC 328, (1973) 3 All ER 268 (PC). See also Re Metropolitan District Rly. Co. and Cosh, (1880) 13 Chd 607, CA. 56. See Bevan v. London Portland Cement Co. Ltd., (1892) 67 LT 615; Metropolitan Rly Co. v. Fowler, (1893) AC 416 (HL). The grant of the exclusive use of pipes or wires is, however, an easement (see e.g. Simmons v. Midford, (1969) 2 Ch 415, (1969) 2 All ER 1269) as, apparently, is the grant of the exclusive use of a burial vault (see e.g. Bryan v. Whistler, (1828) 8 B&C 88).

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(IN) Poonam Pradhan Saxena : Property Law 57. Corbett v. Hill, (1870) LR 9 Eq 671. Whether a room projecting over neighbouring premises carries ownership of the column of air above, depends on the circumstances, Corbett v. Hill, supra. The conveyance of a dwelling house may pass the footings and eaves, where they extend beyond the surface boundary, but not the column of air between them, Truckell v. Stock, (1957) 1 All ER 74, (1957) 1 WLR 161 (CA). 58. Stevens v. Hutchinson, (1953) 1 All ER 699; Perry v. Phoenix Assurance plc, (1988) 3 All ER 60, (1988) 1 WLR 940; see also Harman v. Glencross, (1985) Fam 49, (1986) 1 All ER 545 (CA) (Charging Orders Act, 1979 s. 3(5)). However, in many cases the phrase ‘interest in land was held to include a share in the proceeds of sale of land held on trust for sale; Cooper v. Critchley, (1955) Ch 431(1955) 1 All ER 520 (CA); Elias v. Mitchell, (1972) Ch 652, (1972) 2 All ER 153; Williams and Glyns Bank Ltd. v. Boland, (1981) AC 487, (1980) 2 All ER 408 (HL). Similar interests have been held to be interests in land for the purposes of other enactments; see Kirkland v. Peatfield, (1903) 1 KB 756; Re Hazeldines Trusts, (1908) 1 Ch 34 (CA); Re Fox, Brooks v. Marston, (1913) 2 Ch 75; Re Witham, Chadburn v. Winfield, (1922) 2 Ch 413; Re Jauncey, Bird v. Arnold, (1926) Ch 471. An option to purchase a leasehold interest is an interest in land (Stromdale and Ball Ltd. v. Burden, (1952) Ch 223, (1952) 1 All ER 59); but a right of pre-emption is not an interest in land for the purposes of the general law (Pritchard v. Briggs, (1980) Ch 338, (1980) 1 All ER 294 (CA)). For the meaning of ‘agricultural land under the Inheritance Tax Act, 1984 see Starke v. IRC, (1996) 1 All ER 622, (1995) 1 WLR 1439 (CA). Growing crops may be an interest in land as are agreements for leases. 59. Duncans Industries v. State of Uttar Pradesh, AIR 2000 SC 355 [LNIND 1999 SC 1096]: (2000) 1 SCC 633 [LNIND 1999 SC 1096]. 60. Punnayya v. Venkatappa, AIR 1926 Mad 343. 61. Commr. of Gift Tax v. IP Soni, ILR 1981 Delhi 5630 : [1982] 136 ITR 838 (Delhi). 62. See the Registration Act, 1908, s. 2(6) and the s. 3(26). 63. Haji Sukhan Beg v. Board of Revenue, AIR 1979 All 310. 64. Kanjee and Mooljee v. Shanmugam, AIR 1932 Mad 734 [LNIND 1932 MAD 119]. 65. Anand Behara v. State of Orissa, AIR 1956 SC 17 [LNIND 1955 SC 84]; see also DS DSOUZA v. MR Wagle Trust, AIR 1979 Goa 19. 66. Santosh Jayaswal v. State of Madhya Pradesh, AIR 1996 SC 207 [LNIND 1995 SC 895]: 1995 (6) SCC 520 [LNIND 1995 SC 895]. 67. Chauraman v. Bali, (1887) ILR 9 All 591. 68. Ganpati v. Ajmer, (1955) 1 SCR 1065 [LNIND 1954 SC 168]. 69. Surendra Narain v. Bhailal, (1895) ILR 22 Cal 752. 70. Umesh Chunder v. Zahur Fatima, (1891) ILR 18 Cal 164. 71. Prahlad Dalsukhrai v. Maganlal Muljibhai Tewar, AIR 1952 Bom 454 [LNIND 1952 BOM 7]; Jang Bahadur v. Bhagat Ram, AIR 1930 All 110; Paresh v. Nabogopal, (1902) ILR 29 Cal 1. 72. Sakhiuddin v. Sonaullah, 22 Cal WN 641; see also Anandilal v. Keshaodeo, (1945) ILR 2 Cal 526; Shiv Rao v. Offcial Liquidator, AIR 1940 Mad 140 [LNIND 1939 MAD 221]; wherein it was held that a mortgage decree is immovable property. See also Lalumrao v. Lal Singh, AIR 1924 All 796. A debt secured for the purposes of attachment and setting aside of the sale is a movable property. 73. M.E. Moola Sons v. Official Assignee, AIR 1936 PC 230. 74. Budhiraju v. Vullipalam, AIR 1939 Mad 802 [LNIND 1939 MAD 122]. 75. Mammunhi v. Kunhibi, AIR 1961 Ker 147; Jnan Chand v. Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186]. 76. See Narayan Das Khettry v. Jatindranath, AIR 1927 PC 135 : (1927) ILR 54 Cal 669; Kochunni Kartha v. Raman, AIR 1967 Ker 22; (1966) 2 Ker 211 : (1866) 6 WR 228 in 1866. 77. (1868) 6 WR 228. 78. Narayan Das Khettry v. Jatindranath, AIR 1927 PC 135 : (1927) 54 Cal 669. 79. Bamadev Panigrahi v. Monorama Raj, AIR 1974 AP 226 [LNIND 1973 AP 66]. 80. Ibid. 81. Jnan Chand v. Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186]. 82. Subramanian v. Chidambaram, AIR 1940 Mad 527; Subbiah v. Govindrao, AIR 1953 Nag 224; Addu Achiar v. Custodian Evacuee Property, AIR 1952 Hyd 14. 83. Addu Achiar v. Custodian Evacuee Property, AIR 1952 Hyd 14; Md Ibrahim v. Northern Circars Fibre Trading Co. Coconada, AIR 1944 Mad 492 [LNIND 1944 MAD 117].

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(IN) Poonam Pradhan Saxena : Property Law 84. Narayana Sa v. Balaguruswami, AIR 1924 Mad 187 [LNIND 1923 MAD 125]. 85. Bamadev Panigrahi v. Monorama Raj, AIR 1974 AP 226 [LNIND 1973 AP 66]; Board of Revenue v. Venkataswamy Naidu, AIR 1955 Mad 620 [LNIND 1955 MAD 59]. 86. Perumal Naichker v. Ramaswami Kone, AIR 1969 Mad 346 [LNIND 1967 MAD 177]. 87. J Kuppanna Chetty & Co. v. Collector of Anantpur, AIR 1965 AP 457 [LNIND 1964 AP 141]. 88. Ibid. 89. Addu Achiar v. Custodian Evacuee Property, AIR 1952 Hyd 14. 90. Chatturbhuj v. Bennet, (1905) ILR 29 Bom 323; Addu Achiar v. Custodian Evacuee Property, AIR 1952 Hyd 14. 91. (1872) 7 CP 328, 334. 92. (1902) AC 157 at 161. 93. (2000) SCC 633. 94. Sirpur Paper Mills Ltd. v. CCE, (1998) 1 SCC 400 [LNIND 1997 SC 2083]. 95. AIR 1974 AP 226 [LNIND 1973 AP 66]. 1.

Shantabai v. State of Bombay, (1959) SCR 265 [LNIND 1958 SC 28]; see The Transfer of Property Act, 1882, s. 3; see the s. 3(26); Indian Registration Act, 1908, s. 2(6).

2.

See the s. 3(26).

3.

See Indian Registration Act, 1908 s. 2(6).

4.

Balwant v. Parshottam, 9 BHRC 99; Raghoo v. Kassy, 10 IC 73.

5.

Bejoy v. Banku, (1908) 13 CWN 451, 9 CLJ 336.

6.

See the Registration Act, 1908, s. 2(6).

7.

Krishna v. Akilanda, (1885) 13 Mad 54.

8.

Braja v. Mani, (1951) SCR 431 [LNIND 1951 SC 23]; Shibu v. Gopi, (1897) ILR 24 Cal 449.

9.

Joseph v. Joseph Annama, AIR 1979 Ker 219 [LNIND 1979 KER 9].

10. Divisional Forest Officer Himachal Pradesh v. Daut, (1968) 2 SCR 112 [LNIND 1967 SC 311]. 11. Shantabai v. State of Bombay, (1959) SCR 265 [LNIND 1958 SC 28]. 12. Suresh Chand v. Kundan, (2000) 7 SCALE 620. 13. Ibid. 14. Joseph v. Joseph Annama, AIR 1979 Ker 219 [LNIND 1979 KER 9]. 15. Hakim Singh v. Ram Sanehi, AIR 2001 All 231 [LNIND 2001 ALL 243], 233. 16. Shantabai v. State of Bombay, AIR 1958 SC 532 [LNIND 1958 SC 30]; Ram Kumar v. Krishna Gopal, AIR 1946 Oudh 106; Baijnath v. Ramdhar, AIR 1963 All 214 [LNIND 1962 ALL 179]. 17. Imamali v. Rani Priyabati, AIR 1937 Nag 250, (1938) ILR Nag 31; Atma Ram v. Dama, (1897) 11 CPLR 87; Kalka v. Chandan, 10 IA 20; Raja Devi v. Mohd Yaqub, AIR 1925 All 411; Manohar Lal v. State of Madhya Pradesh, AIR 1959 MP 120. 18. See the Transfer of Property Act, 1882, s. 3. 19. See the s. 2(9). 20. See the, s. 3(36) wherein it has been defined as property of every description except immovable property. See The Transfer of Property Act, 1882, s. 3;Shantabai v. State of Bombay, AIR 1958 SC 532 [LNIND 1958 SC 30]; Ram Kumar v. Krishna Gopal, AIR 1946 Oudh 106, 107; Baijnath v. Ramdhar, AIR 1963 All 214 [LNIND 1962 ALL 179]; Kalka v. Chandan, 10 IA 20; Raja Devi v. Mohd Yaqub, AIR 1925 All 411; Manohar Lal v. State of Madhya Pradesh, AIR 1959 MP 120. 21. Jatikar v. Mukunda, 16 CWN 122, 14 CLJ 369. 22. Altaf Begam v. Brij Narain, (1929) ILR 51 All 612, AIR 1929 All 281. 23. Ibid. 24. Gous Mohammad v. Khwas Ali, AIR 1923 Cal 450. 25. Sheogovinda v. Gouriprashad, AIR 1925 Pat 310.

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(IN) Poonam Pradhan Saxena : Property Law 26. Venkatachalam v. Venkatarami, AIR 1940 Mad 929 [LNIND 1940 MAD 163]. 27. Gramophone Company of India Ltd. v. Shanti Films Corpn., AIR 1997 Cal 63 [LNIND 1996 CAL 125]. 28. Narayana Sa v. Balaguruswami, AIR 1924 Mad 187 [LNIND 1923 MAD 125]. 29. JH Subbiah v. Govindrao, AIR 1953 Nag 224. 30. Meghraj v. Krishna Chandra, AIR 1924 All 365. 31. Bamadev v. Monorma Raj, AIR 1974 AP 226 [LNIND 1973 AP 66]. 32. State Bank of India v. SB Shah Ali, AIR 1995 AP 134 [LNIND 1994 AP 101]. 33. Tehil Ram v. Langin DMELLO, AIR 1916 Bom77. 34. Chief Controlling Revenue Authority v. AB Project, AIR 1979 All 355. 35. Jnanchand v. Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186]. 36. Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159]. 37. Abdul v. Saliman, (1900) ILR 27 Cal 190; Surur Jigar Begum v. Barada Kanta, (1910) ILR 37 Cal 526 where an exception was created for a pardanashin woman; See also Harmongal Narain v. Ganaur Singh, (1907) 13 Cal WN 40 ; see also Girindra v. Bejoy, (1899) ILR 26 Cal 246; Shamu Patter v. Abdul, (1908) ILR 31 Mad 215. 38. Ramji v. Bai Parvati, (1903) ILR 27 Bom 91; Ganga v. Shiam Sundar, (1904) ILR 26 All 69. 39. 16 IC 250 (1912) ILR 35 Mad 607. 40. Ibid. 41. Subramanian v. Karuppayee Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544]. 42. B Rajegowda v. H B Shankaregowda, AIR 2006 Kant 48 [LNIND 2005 KANT 496]. 43. Peddavandla Narayanamma v. Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]; B. Rajegowda v. H.B. Shankergowda, AIR 2006 Kant 48 [LNIND 2005 KANT 496]. 44. Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159]; Seal v. Claridge, (1881) 7 QBD 516, 519; Pearey Mohan v. Sreenat, 7 IC 735, (1909) 14 Cal WN 1046; Saurur Jigar Begum v. Barada Kanta Mitter, 5 IC 539, (1910) ILR 37 Cal 526; Debendra v. Bihari, 15 IC 666, (1911) 16 Cal WN 1075. 45. Gomathi Ammal v. Krishna Iyer, AIR 1954 Mad 126 [LNIND 1953 MAD 37]. 46. Peddavandla Narayanama v. Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]; Rajani Kanta v. Panchananda, 48 IC 820, (1918) 46 Cal 522; Rajani Kanta v. Panchananda, 48 IC 820, (1918) 46 Cal 522; Sristidhar v. Rakshakali AIR 1922 Cal 168; Paban v. Badal, AIR 1921 Cal 276; Ram Samujh v. Mainath, AIR 1925 Oudh 737. 47. Muhammad Ali v. Jaffar Khan, (1897) All WN 146; Dinamoyee v. Bon Behari, (1902) 7 Cal WN 160; Paramasiva v. Krishna, 43 IC 983; Nageshwar Prasad v. Bachu Singh, 53 IC 79, (1919) 4 Pat LJ 511; Dharamdas v. Ramoomal, AIR 1927 Sau 118; Jogendranath Nath v. Nitai Churn, (1903) 7 Cal WN 384; VRMRM Firm v. Muhammad Kasim, AIR 1926 Rang 145; Alagappa Chettirir v. Ko Kala Pai, AIR 1940 Rang 134; Venkata Sastri v. Rahilna Bi, AIR 1962 Mad 111 [LNIND 1960 MAD 174]. 48. Govind Bhikaji v. Bhau Gopal, 39 IC 61, (1917) ILR 41 Bom 384; Dinamoyee v. Bori Behari, (1902) 7 Cal WN 160; Alagapa Chettiar v. Ko Kala Pai, AIR 1940 Rang 134; Jagdeo Chaudhary v. Deo Chaudhary, AIR 1958 Pat 566. 49. Brij Raj Singh v. Sewak Ram, AIR 1999 SC 2203 [LNIND 1999 SC 444]: (1999) 4 SCC 331 [LNIND 1999 SC 444] : (1999) 2 SCJ 272 [LNIND 1999 SC 444]. 50. Peddavandla Narayanamma v. Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]. 51. Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159]. 52. Durga Din v. Suraj Bakhsh, AIR 1931 Oudh 285. 53. AIR 1965 SC 1738 [LNIND 1965 SC 159]: (1966) 1 SCR 153 [LNIND 1965 SC 159]. 54. ML Abdul Jabbar v. MV Venkata Sastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]; prior to this decision there was a conflict of judicial opinion; see, Ram Gharan v. Bhairon, (1931) 43 All 1; Sarada Prasad Tejv. Triguna Charan Ray, AIR 1922 Pat 402; Ramanath v. Delhi Batcha, AIR 1931 Mad 335 [LNIND 1930 MAD 26]; Venkataramayya v. Nagamma, AIR 1932 Mad 272 [LNIND 1931 MAD 170]; Neelima Basu v. Johannal Sarkar, AIR 1934 Cal 772; Kanchedilal v. Jabbarsha, AIR 1936 Nag 171; Parshotam Ram v. Keshodas, (1943) ILR 25 Lah 495; wherein it was held that he is a competent witness. For a contrary opinion, see Tafaluddin Peada v. Mahar Ali, (1899) ILR 26 Cal 78; Chandrani v. Lala Sheo Nath, AIR 1931 Oudh 146; Lachman Singh v. Surendra Bahadur Singh, AIR 1932 All 527; Timmavva v. Channavva, AIR 1948 Bom 322. 55. ML Abdul Jabbar Sahib v. MV Venkata Sastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]. 56. AIR 1969 SC 1147 [LNIND 1969 SC 37]: (1969) 1 SCC 573 [LNIND 1969 SC 37].

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(IN) Poonam Pradhan Saxena : Property Law 57. Ku. Chandan v. Longa Bai, AIR 1998 MP 1 [LNIND 1997 MP 172]. 58. Sarkar Barnard v. Alak Manjary, AIR 1925 PC 89. 59. Dharmadas Mondal v. Kashi Nath, AIR 1959 Cal 243 [LNIND 1958 CAL 76]. 60. Subramanian v. Karuppayee Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544]. 61. Kunji Kuttiamma v. Kunji Kuttiamma, (2001) 1 KLT 797; Brij Raj Singh v. Sewak Ram, AIR 1999 SC 2203 [LNIND 1999 SC 444]: [1999] 2 SCR 779 [LNIND 1999 SC 444]. 62. ML Abdul Jabbar v. Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]; see also Har Kaur v. Gura Singh, AIR 1988 P&H 41, 42, with respect to the signature and the manner of its authentication; Subramanian v. Karuppayee Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544]. 63. ML Abdul Jabbar v. MV Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]. 64. Girja Dutt v. Gangotri, AIR 1955 SC 346; Kunwar Surendra Bahadur v. Thakur Behari Singh, AIR 1939 PC 117. 65. Abinash Chandra v. Dasrath Malo, ILR 56 Cal 598. 66. Dharmadas Mondal v. Kashi Nath, AIR 1959 Cal 243 [LNIND 1958 CAL 76]. 67. Shiam Sundar Singh v. Jaganath Singh, AIR 1927 PC 248. 68. ML Abdul Jabbar v. Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]. 69. See The Transfer of Property Act, 1882, s. 3. 70. See The Transfer of Property Act, 1882, s. 3. 71. See The Transfer of Property Act, 1882, s. 3. 72. AIR 1951 SC 477 [LNIND 1951 SC 57]. 73. See The Transfer of Property Act, 1882, s. 3. 74. Nila Dei v. Bidyadhar Sahan, AIR 1999 Ori 69; Abinash Chandra v. Dasarath, AIR 1929 Cal 123, criticising Radha Mohan v. Nripendra Nath, AIR 1928 Cal 154; Veerappa v. Subramania, AIR 1929 Mad 1 [LNIND 1928 MAD 202](FB); Zamindar of Pollavaram v. Maharaja of Pittapuram AIR 1931 Mad 140 [LNIND 1930 MAD 103]; Ramanathan v. Delhi Batcha, AIR 1931 Mad 335 [LNIND 1930 MAD 26]; Venkataramayya, v. Nagamuru, AIR 1932 Mad 272 [LNIND 1931 MAD 170]; Bhikari Charan v. Sudhir Chandra, AIR 1938 Cal 702; Mayurbhanj State Bank v. Bhabatosh Das, AIR 1961 Ori 178. 75. Pran Nath v. Jadu Nath, (1905) ILR 32 Cal 729; Sant Lal v. Kamla Prasad, AIR 1951 SC 477 [LNIND 1951 SC 57]; Dhiren Bailung v. Bhutuki, AIR 1972 Gau 44; ST Singh v. SK Singh, AIR 1973 Gau 64; Tarachand v. Kesrimal, AIR 1973 Raj 123. 76. Kundan Lal v. Mt. Musharrafi Begam, AIR 1936 PC 207. 77. Dahu v. Janardan, AIR 1950 Pat 368. 78. Tribhuwan Dutt Tripathi v. Ramji Tiwari, AIR 1991 All 268 [LNIND 1991 ALL 272], 271. 79. The term pardanashin woman refers to a woman who remains behind purdah or veil in public places. 80. Padanath v. Ram Narain Upadhia, 19 CWN 991; AIR 1915 PC 21. 81. Kundan Lal v. Mt. Musharrafi Begam, AIR 1936 PC 207. 82. Ganga Prashad v. Ishari Prashad, 22 CWN 697 PC. 83. Pandurang v. Markandeya, AIR 1922 PC 20; see also Sunder Kuer v. Shah Udey Ram, AIR 1944 All 42 wherein it was held that by attesting a document the attesting witnesses do not conform that they have no knowledge of the contents of that document. 84. Tarabag Khan v. Nanak Chand, AIR 1932 Lah 566; Rai v. Gorakh Rai, AIR 1934 Pat 93. See also Abbao Alikhan v. Mahomed Shah, AIR 1951 MP 92. 85. TM Krishnamoorthy Pillai v. Mangalam, 1998 (1) CTC 306 : (1998) II MLJ 173. 86. Ibid. 87. Lachman Singh v. Surendra Bahadur, AIR 1932 All 527. 89. Jhillar v. Rajnarian Rai, AIR 1935 All 781 : 54 All 1051 : (1932) All LJ 635. 90. Dhiren Bailung v. Bhutuki, AIR 1972 Gau 44. 91. Bindeshwari v. Panchayati, AIR 1936 All 169. 92. See the s. 68. 93. Balappa Tippanna v. Asangappa Mallappa, AIR 1960 Mys 234.

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(IN) Poonam Pradhan Saxena : Property Law 94. Brij Raj Singh v. Sewak Ram, AIR 1999 SC 2203 [LNIND 1999 SC 444]. See also Surendra Kumar v. Nathulal, AIR 2001 SC 2040 [LNIND 2001 SC 1151]; Kishore Chandur v. Babu Ganesh Prosad, AIR 1954 SC 316 [LNIND 1954 SC 32]. 95. Sashimukhi v. Monmohini, 67 IC 87; Hason v. Gurudas, AIR 1929 Cal 188; Manki v. Hansraj, AIR 1938 Pat 30. 96. Dhirajjudin v. Baharullah, 90 IC 680. 97. Raja Venkatarmayya v. Kamisetti Gattayya v. Gatayya, AIR 1927 Mad 662 [LNIND 1926 MAD 466]; Uttam Singh v. Hukum Chand, (1917) ILR 39 All 112, 15 All LJ 167. 98. Nila Dei v. Bidyadhar Sahani, AIR 1999 Ori 69. 99. Hakim Singh v. Ram Sanehi, AIR 2001 All 231 [LNIND 2001 ALL 243], 233. 1.

See The Transfer of Property Act, 1882, s. 3.

2.

Ashram v. Bhanwarlal, AIR 1974 Raj 188.

3.

Ashiq Husain v. Chaturbhuj, AIR 1928 All 159.

4.

Lloyd v. Banks, (1868) LR 3 Ch 488, 490.

5.

Ibid.

6.

Ibid.

7.

N Kasinath v. Arun R Rawwli, AIR 2008 (NOC) 1620; Mohideen Sahib v. A Ameena Bi, AIR 2007 Mad 133 [LNIND 2006 MAD 3061]; Peddavandla Narayanamma v. Peddasani Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359];B Rajamani v. Azhar Sultana, AIR 2005 AP 260 [LNIND 2004 AP 1466].

8.

Motilal Jain v. Prakash Bhartiya , AIR 2007 (NOC) 377 (MP).

9.

Tilakdhari v. Khedan Lal, AIR 1921 PC 112.

10. Chaturbhuj v. Mansukhram, AIR 1925 Bom 183. 11. Ahmedabad Municipality Corp. v. Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]; Municipal Board Cawnpore v. Roop Chand Jain, AIR 1940 All 459. 12. Ahmedabad Municipality Corp. v. Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]; Akshay Kumar Banerjee v. Corpn of Calcutta, AIR 1915 Cal 178 [LNIND 1914 CAL 201], wherein it was held that statutory charges cannot be enforced against property in the hands of bona fide purchaser for value without notice. See also Chandu Ram v. Municipal Commissioner of Kurseong Municipality, AIR 1951 Cal 398; Nawal Kishore v. Agra Municipality, AIR 1943 All 115; in which the Allahabad High court held that as a general rule omissions to inspect the records of municipality was gross negligence and if taxes are in arrears the purchaser shall be imputed with constructive notice; see also MC v. Ramjilal, AIR 1941 Oudh 305. 13. Lloyd Banks v. PF Guzdar & Co., AIR 1930 Cal 22. 14. Fateh Bahadur Singh v. Jang Bahadur Gupta, 2000 4 AWC 2891. 15. Chandni v. Anant Bali, AIR 1943 Oudh 398; Nainsukhdas v. Gowardhan Das, AIR 1949 Nag 11. 16. Mathura Prashad v. Anandi Kunwar, AIR 1924 All 63. 17. Kausalai Ammal v. Sankara Muthiah, AIR 1941 Mad 707 [LNIND 1940 MAD 429]. 18. AEK Kaliappa Nadar v. SVKR Amrithavala Vandammal, AIR 1973 Mad 255 [LNIND 1972 MAD 269]. 19. Mahomed Yunus Khan v. Courts of Wards, AIR 1937 Oudh 301. 20. Alwar Chetty v. Jagannath, (1928) 54 Mad LJ 109. 21. Kshetra Nath v. Harsukhdas, AIR 1927 Cal 538. 22. (1929) ILR 56 Cal 868. 23. Kori Gowramma v. The Vyasa Bank Ltd, Kampli, 2001 (2) Karlj 524 [LNIND 2000 KANT 138] : 2000 (3) KCCR 1841 [LNIND 2000 KANT 138]. 24. Imperial Bank of India v. U Rai Gyaw Thu & Co., AIR 1923 PC 211; Kshetra Nath Sikdar v. Harsukdas Bal Kissen Das, AIR 1927 Cal 538. 25. Manji v. Hoorbai, (1910) ILR 35 Bom 342. 26. Ram Coomar Coondoo v. Macqueen, (1872) 11 Beng LR 46. 27. Harak Chand v. Sohan Raj, AIR 1990 Raj 109. 28. (1909) ILR 33 Bom 1.

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(IN) Poonam Pradhan Saxena : Property Law 29. Rajaram v. Krishnaswami, (1893) 16 Mad 301. 30. Bepin Krishna v. Jogeshwar Ray, AIR 1921 Cal 730. 31. Rajaram v. Krishnaswami, (1893) ILR 16 Mad 301. 32. AIR 1971 SC 1201 [LNIND 1971 SC 183]: (1971) 1 SCC 757 [LNIND 1971 SC 183]. 33. AIR 1943 All 115 (FB). 34. AIR 1941 Oudh 305. 35. AIR 1940 All 456. 36. AIR 1971 SC 1201 [LNIND 1971 SC 183]. 37. The Transfer of Property Act, 1882, s. 3; see also Rajo Kuer v. Brij Bihari Prasad, AIR 1962 Pat 236; Alliance Bank of Simla v. Bhai Kahan, 25 IC 856. 38. Tilakhdari Lal v. Khedan Lal, AIR 1921 PC 112; Monindra v. Troyluko Nath, (1899) 2 Cal WN 750. 39. 47 IA 239; AIR 1921 PC 112. 40. See Nand Kishore v. Anwar, (1908) ILR 30 All 82; Chunilal v. Ramchandra, (1898) ILR 22 Bom 213; Dina v. Nathu, (1902) ILR 26 Bom 538; Churaman v. Balli, (1887) 9 ILR All 591; Janki Prasad v. Kishen Dat, (1894) ILR 16 All 478; Dundaya v. Chenbasapa, (1885) ILR 9 Bom 427. 41. See Nanda Lal v. Abdul Aziz, (1916) ILR 43 Cal 1052; Preonath v. Ashutosh, (1900) ILR 27 Cal 358; Inderdawan v. Gobind, (1896) ILR 23 Cal 790; Bunwari v. Ramjee, (1902) 7 Cal WN 11; Monindra v. Troylucko Nath, (1899) 2 Cal WN 750; Atul Kristo v. Mutty Lal, (1899) 3 Cal WN 30. 42. See Damodara v. Somasundara, (1889) ILR 12 Mad 429; Madras Building Co v. Rowlandson, (1889) ILR 12 Mad 383; Rangasami v. Annamalai, (1908) ILR 31 Mad 7; Shan Maun Mull v. Madras Building Co., (1892) ILR 15 Mad 268. 43. See The Transfer of Property Act, 1882, s. 3. 44. Gordhandas v. Mohanlal, AIR 1921 Bom 161. 45. Srimatty Akshay Kumari v. Kanai Lal, 16 IC 618, (1912) 17 Cal WN 224; Renukabai v. Bhavan, AIR 1939 Nag 132 : 185 IC 33. 46. Alliance Bank of Simla v. Kahan Singh, AIR 1914 Lah 204. 47. Ram Narain v. Bandi Prashad, (1904) ILR 31 Cal 737; Ashiq Hussain v. Chatturbhuj, AIR 1928 All 159; Sahadev v. Shekh Papa, (1905) ILR 29 Bom 199. 48. Hira lal v. Chanan Khan, AIR 1914 Lah 326; see also Sahadev v. Shekh Papa, (1905) ILR 29 Bom 199. 49. Sahadev v. Shekh Papa, (1905) ILR 29 Bom 199; Prabhu Lal v. Chattar, AIR 1925 All 557. 50. Gordhandas v. Mohanlal, AIR 1921 Bom 161. 51. Ma Pwa Mayv SRMMA Chettyar Firm, AIR 1929 PC 279; Sah Mukkum Lal v. Sah Koondum Lall, 2 IA 210. 52. KV Galliara v. U Thet, AIR 1929 Rang 117; Sita Ram v. Ram Narain, AIR 1934 Oudh 283. 53. The Act is not in force in Punjab and therefore, whether or not registration would amount to constructive notice would depend upon the facts and circumstances of each case. See Gopal Singh v. Thakur Singh, AIR 1935 Lah 313; Ghulam Fatma v. Kachore Singh, AIR 1940 Lah 269; DAV College Registered Society v. Umrao Singh, AIR 1935 Lah 410. 54. Hirachand v. Kashi Nath, AIR 1942 Bom 339; Asharfi Devi v. Prem Chand, AIR 1971 All 457. 55. Baba Ramchandra v. Kondeo Jogna, AIR 1940 Nag 7. 56. Backer Khorasanee v. Ahmed Ismail, AIR 1928 Rang 28; Ludlao Hiraman v. Kashinath, AIR 1942 Bom 339. 57. Gokul Das v. Eastern Mortgage and Agency Co., (1906) ILR 33 Cal 410. 58. P. Buchi Reddy v. A. Sudhakar, AIR 1999 Andh Pra 188. 59. AIR 1974 Gau 43. 60. See Backer Khoransanee v. Ahmed Ismail, AIR 1928 Rang 28; Heeraman v. Kashinath, AIR 1942 Bom 342. 61. See the Registration Act, 1804, s s. 30(2) and 66. 62. Parvathathammal v. Sivasankara Bhattar, AIR 1952 Mad 265 [LNIND 1951 MAD 20], (1951) 2 Mad LJ 191. 63. Munimmidi Reddi Papannagari Yella Reddy v. Salla Subbi Reddy, AIR 1954 Andh Pra 20. 64. Veeramalal Vanniar v. Thadikara Vanniar, AIR 1969 Mad 383.

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(IN) Poonam Pradhan Saxena : Property Law 65. (1809) 16 Ves 249. 66. AIR 1920 PC 274. 67. Veeramalal Vanniar v. Thadikara Vanniar, AIR 1969 Mad 383. 68. Gunnamoni v. Bussunt, (1890) 16 Cal 414; Birabaro Rout v. Dullabh Rout, (1972) 38 Cut LT 161; Bisheshar v. Muirhead, (1892) ILR 14 All 362. 69. Gunnamoni v. Bussunt, (1890) 16 Cal 414. 70. Vinayakrao v. Gyanoha, AIR 1923 Bom 13. 71. Ahmedbhoy v. Balkrishna, (1895) ILR 19 Bom 391. 72. Basruddin Khan v. Gurcharan Das, AIR 1970 Pat 304; Ramakrishna Singh v. Mahadei Halwai, AIR 1965 Pat 467; Balchand Mahton v. Bulaki Singh, AIR 1929 Pat 284. All these decisions are based on the rule in Daniel v. Davision, (1809) 16 Ves 249; Faki Inrahim v. Faki Ghulam Mohidin, AIR 1921 Bom 459; M.K. Lingarkar v. SB Kesarkar, AIR 1972 Bom 100 [LNIND 1970 BOM 55]; Tiloke Chand v. JB Beattle & Co., AIR 1926 Cal 204; Parthasaradhi Iyer v. Subbaraya Gramani, AIR 1924 Mad 67 [LNIND 1923 MAD 13]; Munimmidi Reddi Papannagari Yella Reddy v. Salla Subbi Reddy, AIR 1954 Andh Pra 20; Babu Ram Bag v. Madhav Chandra, (1913) ILR 40 Cal 565; see also HR Narayanaswamy Naidu v. Daveramma, AIR 1981 Kant 93 [LNIND 1980 KANT 238]. 73. Kalyani v. Krishnan Nambiar, AIR 1932 Mad 305 [LNIND 1931 MAD 283]; Babu Ram Bag v. Madhav Chandra, (1913) ILR 40 Cal 565. 74. M.K. Lingarkar v. SB Kesarkar, AIR 1972 Bom 100 [LNIND 1970 BOM 55]; See also Ram Krishna v. Mahadei, AIR 1965 Pat 467; Tiloke Chand v. JB Beattle & Co., AIR 1926 Cal 204. 75. 1998 (1) Karlj 107 [LNIND 1997 KANT 337] : ILR 1998 KAR 485 [LNIND 1997 KANT 337]. 76. AIR 2000 SC 2921 [LNIND 2000 SC 1033]: (2000) 6 SCC 685 [LNIND 2000 SC 1033]. 77. AIR 1981 Kant 93 [LNIND 1980 KANT 238]. 78. Mohd Mustaffa v. Haji Md. Isa, AIR 1987 Patna 5. See also Manji v. Hoorbai, (1910) 35 Bom 342 wherein it was held that possession of a small portion of the land is constructive notice only with respect to that portion and cannot operate as notice for the whole land. 79. (1809) 16 Ves 249. 80. Hari Charan Kaur v. Kaula Rai, AIR 1971 Pat 478 (FB). 81. Kesharmult Agarwala v. Rajendra Prashad, (1968) BLJR 28. 82. 1968 BLJR 28. 83. AIR 1987 Pat 5. 84. AIR 1971 Pat 478. 85. See Moreshwar v. Dattu, (1888) ILR 12 Bom 569. 86. Fateh Bahadur Singh v. Jang Bahadur Gupta, 2000 4 AWC 2891. 87. Moreswar v. Dattu, (1888) ILR 12 Bom 569; See also Pindee v. U Hpa, AIR 1928 Rang 237. 88. Gunnamoni v. Bussunt, (1890) 16 Cal 414; Birabaro Rout v. Dullabh Rout, (1972) 38 Cut LT 161. 89. Mohd Mustaffa v. Haji Md. Isa, AIR 1987 Patna 5. 90. Mohori Bibi v. Dharamdas Ghosh, (1903) ILR 30 Cal 539; Renulabai v. Bhavan, AIR 1939 Nag 132. 91. Rampal Singh v. Bal Baddar Singh, (1904) 25 All 1. 92. Greender Chander v. Mackintosh, (1879) ILR 4 Cal 897, 910.

End of Document

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law

General Introduction The classical law relating to transfer of property was purely customary. Before the advent of the British and their active intervention in the Indian legal system, Hindus and Muslims were governed by their respective law in relation to transfer of property. This arrangement worked adequately in the informal and traditional judicial system of panchayats because those who decided the matter were not only familiar with the nature of the dispute but also with the law and the litigants as well. However, the same scenario proved to be very confusing and uncertain with the establishment of the informal courts in India by the British. In this adversarial litigation system, the disputes were decided by impartial judges who were unfamiliar with the litigants and the distinctive social system of India. Realising the absence of a concrete and ascertainable law of property comparable to what they had in England, these courts applied English rules governing transfer of property with modifications to suit the Indian conditions. However, such application of the British principles even with modifications, at times, was grossly inappropriate due to the social and cultural differences between England and India. Thus, the desirability of enacting the law relating to transfer of property, was perceived soon after the consolidation of British authority in India. In addition, various high courts in the absence of clear rules made a very liberal use of their own notions of the principles of equity, justice and good conscience, and laid down diametrically opposite principles further compounding the confusion and uncertainty. Even the Privy Council noted this uncertainty with concern, and attributed this undesirable scenario to a lack of codification of the law of property in India calling upon the authorities to take urgent steps in this direction.1 The first Law Commission2 was appointed by the British Queen primarily to codify the civil law in India including the one relating to transfer of property. This commission prepared the draft Bill in 1870, which was introduced in the Legislative Assembly in 1877.3 It was then referred to the select committee, was revised by it and was circulated for public opinion. In light of the suggestions, it was redrafted and referred to the second Law Commission.4 After several drafts it was passed on 17 February 1882 and came into force on 1 July 1882. The Bill was based primarily on the English law of real property. Thus, the basic substantive content was the English law, but as it was meant for India, it dropped what was primarily local and historical in context of English law and the rest of the provisions were modified and remoulded to suit the Indian conditions. Soon after the coming into force of the Act, a bulk of conflicting case law developed. This conflict made it apparent that there was an urgent need of further exposition of law and legislative

(IN) Poonam Pradhan Saxena : Property Law

intervention. The Act was thus consistently amended by not less than twelve amending Acts, yet despite these Acts, conflicting decisions continued to pour in from various high courts and the resulting confusions necessitated further exposition of the law. It became clear that in certain areas, the provisions of the Act were defective both in substance as well as in drafting, and needed amendment. The legislative department of the government of India, therefore, prepared the Bill incorporating the necessary changes, and the same was referred to a special select committee.5 The amending Act passed in 1929, amended not only several provisions of the Transfer of Property Act 1882, (TP Act) but involved amendments in several other enactments that became necessary to avoid confusion and co-existence of conflicting provisions through the Transfer of Property (Amendment) Supplementary Act, Act 21 of 1929. The principal Act was last amended on 31 December 2002. SCOPE OF THE ACT The Act defines and amends certain parts of the law relating to transfer of property by act of parties.6 The important words used in the Act are ‘by act of parties’7, and therefore, it applies and governs the transfers by act of parties only and does not govern transfers that take place due to operation of law. Accordingly, it does not govern transfers of property through court auction,8 forfeiture, acquisition or due to insolvency proceedings or government grants.9 It also does not govern transfers of property through intestate10 or testamentary11 succession. BASIC OBJECTIVES OF THE ACT The Act defines certain expressions used in relation to transfer of property and amends the (then) prevailing rules governing the same. It does not purport to introduce any new principle of law.12 One of the basic objectives of the Act was to bring in harmony the rules relating to transfer of property between living persons and those applicable in case of the devolution of the same, in the event of the death of a person, through intestate and testamentary succession. The Act also seeks to complete the law of contract, as most of the transfers primarily arise out of a contract between the parties. The Act has also, by providing for the compulsory registration of the transfers,13 changed the nature of a transfer of property from a private to a public affair. Act not Exhaustive The Act is not exhaustive nor is it a complete code.14 This means that it does not cover the entire law relating to transfer of property but deals with certain aspects only. The fact that it is not exhaustive is also apparent from the language that is used in the Preamble. Unlike the Indian Evidence Act, 1872, that uses the term ‘consolidate’ hinting at the completeness of the subject dealt with under the Act,15 the present Act seeks to define and amend only certain parts of the law relating to transfer of property and not all areas or all parts of this branch of law. One of the consequences of the Act not being exhaustive, is that if a particular situation is not covered by any provision of the Act, the courts in India are empowered to settle the same by applying the rules of equity, justice and good conscience or even with the help of English cases16 on the relevant aspects, but only when the same is not prohibited by any statutory provision of India.17 However, where the issue is expressly covered by the TP Act, or by any other Indian statute,18 the Indian Page 2 of 9

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courts have no such power. LEGISLATIVE COMPETENCE Transfer of property other than of agricultural land, is a subject specified in the concurrent list. The Constitution of India under its seventh schedule, by virtue of entry 6 of list III, empowers both the states, as well as the Parliament, to frame laws on this topic.19 As far as agricultural land is concerned, the states alone are empowered to legislate on the same by virtue of entry 18 list III of the seventh schedule of the Constitution of India, and in cases where there is a conflict, a state law relating to transfer of agricultural land can override a parallel conflicting provision of the Transfer of Property Act, 1882.20 The state, therefore, has the power to make special provisions or rules with respect to the transfer of agricultural property, which may include registration, or prohibiting persons from alienating such land, including a power to frame rules with respect to reopening of such transfers or alienations.21 APPLICATION OF THE ACT

Section 2. Repeal of Acts—Saving of certain enactments, incidents, rights, liabilities, etc.— In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained be deemed to affect— (a) the provisions of any enactment not hereby expressly repealed; (b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force; (c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or (d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law. The Act expressly repeals the enactments specified in the schedule but saves the provisions of any enactment that has not been so repealed.22 Chapter II of the Act does not apply to transfer of property among Muslims, in so far as there is a contrary provision under Muslim law. The rule is not that the TP Act does not apply to Page 3 of 9

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Muslims, but the rule is that if there is a rule of Muslim law at variance or different from that specified under the TP Act, it is the Muslim law that would prevail, but if there is no contrary or inconsistent rule under Muslim Law, Muslims would be subject to the provisions of this chapter as well. Notable in this part are the rules with respect to gifts and settlement of property in perpetuity. Under the general rules specified under the TP Act, a gift of immovable property must be executed with the help of a written, attested and registered gift deed.23 The delivery of possession of the property is not an essential requirement to the validity of the gift, and will depend upon the contract between the parties. Under Muslim law, however, a gift of immovable property can be effected orally, and generally, the gift is not valid unless it is followed by immediate delivery of possession of the property.24 The latter rule will be applicable only in case of gifts made between Muslims. Similarly, s s 13 and 14 of the TP Act prohibit transfer of property in favour of unborn persons and are against the rule of perpetuity. However, under Muslim law, property can be tied up and transferred for the benefit of one’s descendants not yet in existence, if the ultimate benefit goes to charity.25

HINDU LAW Till 1929, the Act also saved expressly the rules of Hindu Law in their application to Hindus. However, the amending Act of 1929 omitted the word Hindus from s 2 and brought them under the purview of the TP Act.26 TERRITORIAL APPLICATION To begin with, the application of the Act was extended to the whole of British India.27 This expression, ‘British India’, after independence, was replaced by ‘all the provinces of India’ and soon, further replaced by ‘whole of India’. SUBSEQUENT EXTENSION OF THE ACT Section 1 of the TP Act provides: Extent.— It extends in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi. But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned. And any State Government may from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely: — Section 54, paragraph 2 and sections 3, 59, 107 and 123. Page 4 of 9

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Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 1908, (16 of 1908) under the power conferred by the first section of that Act or otherwise. The state governments are empowered under the Act to extend the operation of the Act to the territories, where earlier, the Act did not apply. However specifically, four provisions mentioned under the Act that deal with the execution and registration of specific transfers of immovable property—namely, sale, mortgage, lease and gifts cannot be so extended to those areas which have been expressly excluded by the Registration Act 1908. The application of the Act has been extended to Bombay,28 Sind,29 Burma,30 Panth Piploda,31 all Part B states,32 the merged states,33 Tripura, Vindhya Pradesh,34 Madhya Pradesh,35 Madras,36 Mysore,37 Rajasthan,38 Kerala,39 Manipur,40 Saurashtra, and Hyderabad, areas of Bombay,41 Delhi,42 Goa, Daman and Diu,43 Punjab,44 and agricultural lands of Travancore.45 SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER OF PROPERTY ACT, 1882 If the Parliament has enacted special laws to deal with certain kinds of transfers, the Transfer of Property Act, 1882, would not apply to such situations. For instance, the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002, to secure bank loans from companies;46 the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978, to protect exploitation of Tribal’s against unscrupulous non–tribals prohibiting transfer of tribal land in favour of non tribals47 and the Burma Shell (Acquisition of Undertaking in India ) Act, 1976,48 are some of the enactments that would oust the application of the Transfer of Property Act, 1882 in specific cases. MEANING OF ‘REAL PROPERTY’ AND ‘CHATTELS REAL’ The term ‘property’ is used to denote either rights in the nature of ownership or the corporeal things, whether lands or goods, which are the subjects of such rights.49 ‘Real’ denotes that the thing itself, or a particular right in the thing, may be specifically recovered;50 and, since originally specific recovery was only allowed in cases where the claimant was entitled to a freehold interest, that is, an estate for life or a greater estate,51 ‘real property’ denotes (1) land and things attached to land so as to become part of it; and (2) rights in the land which endure for a life or are inheritable, whether these involve full ownership or only some partial enjoyment of the land or the profits.52 On the other hand, rights in land which endured for a term of years only, were not originally specifically recoverable and were described as ‘chattels real’ under English law. Meaning of ‘Personal Property’

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Personal property or personalty may be roughly described as comprising all forms of property, movable or immovable, corporeal or incorporeal, other than freehold estates and interests in land (which may include chattels affixed to land)53 and its appurtenances.54 Moreover, by the equitable doctrine of conversion, equitable interests in freehold property are sometimes treated as personal property, as, for instance, where the freehold is held by trustees upon trust for sale,55 or on the exercise of an option to purchase.56 Personal property is divisible into two classes: chattels personal, and chattels real. Chattels personal have retained much of their former individuality; in particular, the rules which govern the acquisition and alienation inter vivos of chattels personal, differ from those applicable to real property. Chattels Real Chattels real are interests concerning or savouring of realty, such as a term of years in land,57 an annuity issuing out of a term of years,58 which have the quality of immobility which makes them akin to realty, but lack indeterminate duration. In some respects they are subject, like other chattels, to the law of personal property, but in others, they are subject to the law of real property.59 Chattels Personal Chattels personal are, strictly speaking, things movable, but in modern times the expression is used to denote any kind of property other than real property and chattels real.60 ‘Personalty’ or ‘personal property’ includes many kinds of property unknown to the common law, such as bills of exchange, debentures,61 government annuities and stock in the public funds,62 but does not include title deeds relating to real estate,63 heirlooms in the strict sense64 or fixtures,65 and it does not always include growing crops or trees.66 Some kinds of property are declared by statute to be personalty, capable of being dealt with as personalty.67 Certain things are not the subjects of property.68 An option to purchase land is, however, property and presumably, is personal property.69

1.

See Mulla, The Transfer of Property (ed. Solil Paul) ninth edn., p.xi.

2.

The first Law Commission consisted of Lord Romilly MR; Sir Edward Ryan, Chief Justice of Bengal; Lord Sherbrooke; Sir Robert Lush and Sir John Macleod. Besides the Transfer of Property Act, this committee also drafted the Indian Evidence Act, the Indian Contract Act, the Indian Succession Act, and the Negotiable Instruments Act.

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(IN) Poonam Pradhan Saxena : Property Law 3.

The then Secretary General of State for India, the Duke of Argyll, sent the draft to India, which after some modifications was presented in the Legislative Assembly.

4.

The second Law Commission consisted of Charles Turner, Chief Justice of Madras; Sir Raymond West and Mr. Whitley Stokes, law member of the Governor General.

5.

This special select committee comprised of Mr. SR Das, Law member of the council of the Governor General; Mr. BR Mitter, the then Advocate General of Bengal, Dr. SN Sen and Mr. Dinshaw Mulla.

6.

See the Preamble, The Transfer of Property Act, 1882.

7.

In some cases the Act has been applied to transfers by operation of law as well. For details see the discussion, infra.

8.

The Act does not apply to a sale in execution, see Dinendronath Sanyal v. Ramcoomar Ghose, (1881) ILR 7 Cal 107.

9.

Dwarkaprasad v. Kathlen, (1955) ILR 1955 Nag 538.

10. Kishori Lal v. Krishna Kamini, (1910) ILR Cal 377. 11. Rajaparthasarthi v. Raja Venkatadasi, AIR 1922 Mad 457. 12. Tajjo Bibi v. Bhagwan, (1899) 16 All 295. 13. Except when the property is of a nominal value, or where it is let out for a short time period. 14. Jatendra v. Rangpur Tobacco Co., AIR 1924 Cal 990; Venkatalingam v. Parthasarthy, AIR 1942 Mad 558; HV Low & Co. Ltd. v. Pulin Bihari Lal Sinha, AIR 1933 Cal 154. 15. Collector of Gorakhpur v. Palakdhari, (1890) ILR 12 All 1. 16. Kalyan Das v. Jan Bibi, (1929) ILR 51 All 454; Maharaja of Jeypore v. Rukmini, AIR 1919 PC 1. 17. Sabratan v. Dhanpat, AIR 1933 All 70. 18. Venkatacharyulu v. Venkatasubba, AIR 1926 Mad 55 [LNIND 1925 MAD 23]. 19. This also includes legislation on the landlord and the tenant relations with respect to non-agricultural property in India; see Bapalal v. Thakurdas, AIR 1982 Mad 399 [LNIND 1982 MAD 156]. 20. Megh Raj v. Allah Rakhia, (1947) FCR 77 (PC). 21. Lingappa Pochanna v. State of Maharashtra, AIR 1985 SC 389 [LNIND 1984 SC 331]. 22. See The Transfer of Property Act, 1882, s. 2(a). 23. The Transfer of Property Act, 1882, s. 123. 24. See Poonam Pradhan Saxena, Family Law Lectures: Family Law–II, pp. 527-528. 25. Wakf Validating Act, 1913. 26. The classical rules of Hindu law that made bequests and transfers in favour of unborn persons, wholly void were abrogated by the Hindu Disposition of Property Act, 1916 (15 of 1916) and the Madras Act of 1914 and Act of 1921, and such transfers were validated to some extent. The rules with respect to transfers to a class of persons where with respect to some of them the transfer is valid, and for some it is void, were also modified. The earlier rule of Hindu law, i.e., making the whole of the transfer void, has also been modified. Presently, the complete transfer does not fail and it is valid with respect to those who are capable to take the transfer in their favour and void with respect to those who are incapable to do so. 27. See The Transfer of Property Act, 1882. The term ‘British India did not include the native states of India, Land ceded by native princes to the British government for limited purposes such as for railway administration; cantonment areas and civil areas, etc, and those territories that were specifically excluded by legislative enactments. 28. With effect from 1 January, 1893, see the Bombay Rules and Orders, vol. II, p. 195; see also the Central Act 30 of 1950. 29. With effect from 1 January, 1915, see the Bombay Rules and Orders, vol. II, p. 195. 30. With effect from 22 December, 1924, see Burman Gazette, 1924, Pt. I, p. 1082. 31. Panth Pithoda Laws Regulations, 1929, 1 of 1929. 32. Part B States Laws Act, 1951. 33. The Merged States Laws Act, 1950. 34. By the Central Act, 1950, 30 of 1950. 35. By MP Act 12 of 1950. 36. By the Madras Act 35 of 1949.

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(IN) Poonam Pradhan Saxena : Property Law 37. Except Bellary District, see the Mysore Act 32 of 1951. 38. By notification. See Rajasthan Gazatte 1952, Pt. IV-A, p. 185 see also Champa Lal v. Rameshwar, AIR 1967 Raj 233. 39. With effect from 1955, by the Travancore Cochin Act 11 of 1955. 40. Manipur Law Regulation 1929, 2 of 1929; see also the Central Act 68 of 1956. 41. By the Bombay Act 57 of 1959. 42. The whole of the Act except s. 129, has been extended to Delhi, see Gazette of India, Pt. II, dated 17 November, 1962, p. 1852. 43. With effect from 1 November, 1965, see Sazro Govind Gadi v. Malba Madeva Suria Rao Desai, AIR 1969 Goa 42. 44. For its application to Punjab, see Gian Chand Shamchand v. Rattan Lala Krishan Kumar, AIR 1964 Punj 210. 45. From 1 July, 1955, see Lakshmi Pillai Subhadra Amma v. Easwara Pillai Velayudhan Pillai. AIR 1977 Ker 148 [LNIND 1977 KER 85], 1977 Ker LT 464. 46. Mardia Chemicals Ltd v. Union of India, (2004) 4 SCC 311 [LNIND 2004 SC 458]. 47. Harish Chandra Hegde v. State of Karnataka, (2004) 9 SCC 780. 48. Bharat Petroleum Corporation v. P. Kesavan, (2004) 9 SCC 772 [LNIND 2004 SC 434]. 49. This dual meaning of ‘property arises from a tendency to identify the corporeal thing with the aggregate of rights which make up the entire right of ownership, including the right of exclusive possession or enjoyment; and it is confined to cases where the right involves possession. Thus, where a person is entitled to land in fee simple in possession, ‘property is appropriate to describe both the land itself and his interest in the land; but, where the right does not involve possession of a corporeal thing, where e.g. it is an easement or a rentcharge, ‘property denotes a right only. See Austins Jurisprudence, fifth edn., pp. 361, 777; Williams on the Law o f Real Property, twenty-fourth edn., p. 4. This identification of the right of ownership with the land itself accounts, also, for the dual meaning of ‘corporeal hereditament. All rights in land which formerly were heritable, whether involving full ownership with possession or only a partial right, such as a rentcharge, unaccompanied by possession, are, strictly speaking, incorporeal hereditaments (see Challiss Law of Real Property, third edn., p. 49), but the right of ownership with possession is identified with the land itself and is called a ‘corporeal hereditament, and the term ‘incorporeal hereditament is reserved for partial rights in the land. 50. In the Transfer of Property Act, 1882, unless the context otherwise requires, ‘property includes any thing in action and any interest in real or personal property: Here, ‘property is used to mean an incorporeal right, and, also, in the case of land, the corporeal thing. In the case of personal property it may be either a corporeal thing, such as a vehicle, or an incorporeal thing, such as a share in a company. This follows from the division of actions into real and personal, a division which is quite distinct from that between actions in rem and actions in personam. See also 4 LQR 394,et seq. 51. This incident of specific recovery has no actual connection with the nature of the right of property, see Pollock and Maitlands History of English Law, second edn., p. 181 et seq; and Personal Property vol. thirty-five (Reissue). A more substantial distinction is that ‘things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movables; which may attend the owners person wherever he thinks proper to go; 2 Bl Com, fourteenth edn., 16. However, this only suits tangible forms of personal property, and not the most important modern forms such as shares and other choses in action. As to the specific recovery of interests in land which were of a freehold nature and based on ‘seisin, see 3 Holdsworths History of English Law, third edn., p. 5 et seq; 7 Holdsworths History of English Law, p. 23 et seq; Cheshire and Burns Modern Law of Real Property, fifteenth edn., p. 30. 52. As to the distinction between immovables and movables see infra see also, Re Earnshaw-Wall [1894] 3 Ch 156. 53. As to the general rule of law that anything affixed to the freehold becomes part of it, and the exceptions to the rule, see Bain v. Brand, (1876) 1 App Cas 762 at 767 (HL); Simmons v. Midford, (1969) 2 Ch 415, [1969] 2 All ER 1269 (drains); HEDibble Ltd. v. Moore, (1970) 2 QB 181, (1969) 3 All ER 1465 (CA). 54. There are certain interests which partake of the nature of real estate which may not be completely covered by the above definition For all practical purposes, however, the definition is believed to be sufficient. Examples of such interests are peerages and dignities; see Nevils Case, (1604) 7 Co. Rep 33a; Lord Advocate v. Walker Trustees, (1912) AC 95 at 104 (HL); and deeds of real estate (as to the common law rule by which these ordinarily pass with the realty to which they relate, and as to the exceptions to the rule, see Co. Litt 6a; Harrington v. Price, (1832) 3 B&Ad 170; Re Williams and Duchess of Newcastles Contract, (1897) 2 Ch 144 at 148; Beaumont v. Jeffery, (1925) Ch 1. As to the distinction between property and a power over property, see Re Armstrong, ex p Gilchrist, (1886) 17 QBD 521 (CA). 55. An agreement for the sale of an interest in the proceeds of sale of land under a trust for sale may, however, constitute an agreement for the sale of an interest in land; see Cooper v. Critchley, (1955) Ch 431, (1955) 1 All ER 520 (CA); however see also, Stevens v. Hutchinson, (1953) Ch 299, (1953) 1 All ER 699; Irani Finance Ltd. v. Singh, (1971) Ch 59, (1970) 3 All ER 199 (CA); Elias v. Mitchell, (1972) Ch 652, (1972) 2 All ER 153; Cedar Holdings Ltd. v. Green, (1981) Ch 129, (1979) 3 All ER 117 (CA); Williams and Glyns Bank Ltd. v. Boland, (1981) AC 487, (1980) 2 All ER 408 (HL); Gray (surviving executor of Lady Fox deceased) v. IRC, (1994) STC 360 (CA). 56. In relation to a right of pre-emption; see Pritchard v. Briggs, (1980) Ch 338, (1980) 1 All ER 294 (CA).

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(IN) Poonam Pradhan Saxena : Property Law 57. Countess of Bridgewater v. Duke of Bolton, (1704) 6 Mod Rep 106 at 107; Freke v. Lord Carbery, (1873) LR 16 Eq 461 at 466; Re Watson, Carlton v. Carlton, (1887) 35 WR 711; Tomkins v. Jones, (1889) 22 QBD 599 at 602 (CA); Re Grassi, Stubberfield v. Grassi, (1905) 1 Ch 584; Crago v. Julian, (1992) 1 All ER 744, (1992) 1 WLR 372 (CA). As to options in leases to purchase the fee simple; see Woodall v. Clifton, (1905) 2 Ch 257 at 279 (CA). 58. Re Fraser, Lowther v. Fraser, (1904) 1 Ch 111 (affd (1904) 1 Ch 726, CA; Re Ramadges Settlement, Hamilton v. Ramadge, (1919) 1 IR 205. 59. Whitaker v. Ambler, (1758) 1 Eden 151 at 152; Prescott v. Barker, (1874) 9 Chapp 174 at 190. 60. Thus in its wider sense ‘chattels personal includes choses in action: ‘Chattel is derived from the Latin ‘catalla, which primarily signified beasts of husbandry or cattle, but in its secondary sense it was applied to all kinds of movables; 2 Bl Com, fourteenth edn., 385; as to whether a prehistoric boat embedded on the soil below the surface is a chattel; see Elwes v. Brigg Gas Co., (1886) 33 Ch D 562. As to shares being chattels for the purpose of Supreme Court fees; see Re Givan, Rees v. Green, (1966) 3 All ER 393, (1966) 1 WLR 1378; Bain v. Brand, (1876) 1 App Cas 762 at 767 (HL). 61. Attree v. Hawe, (1878) 9 Chd 337, 351 CA. 62. Dundas v. Dutens, (1790) 1 Ves 196 at 198; Wildman v. Wildman, (1803) 9 Ves 174 at 177; R v. Capper, (1817) 5 Price 217 at 263, 264. 63. As to title deeds see Harrington v. Price, (1832) 3 B&Ad 170 at 173. 64. These were heirlooms, which, by virtue of a special custom, descended with the inheritance of the land; Viscount Hill v. Dowager Viscountess Hill, (1897) 1 QB 483 at 494 (CA). 65. See Bain v. Brand, (1876) 1 App Cas 762 at 767. 66. Re Ainsli.e., Swinburn v. Ainslie, (1885) 30 Ch D 485 (CA), where growing timber was held to be real estate until severed. 67. Re Lynes Settlement Trusts, Re Gibbs, Lyne v. Gibbs, (1919) 1 Ch 80 (CA). 68. Benefits which are entirely at the discretion of trustees did not constitute property for estate duty purposes, Re J. Bibby & Sons Ltd., Pensions Trust Deed, Davies v. IRC, (1952) 2 All ER 483. As to pews in a church see Re St. Marys, Banbury, (1986) Fam 24, (1985) 2 All ER 611, Oxford Consistory Ct; affd (1987) Fam 136, (1987) 1 All ER 247. As to church monuments and their accoutrements; Re St. Andrews, Thornhaugh, (1976) Fam 230, (1976) 1 All ER 154, Peterborough Consistory Ct; Re St. Bartholomews, Aldbrough, (1990) 3 All ER 440, York Consistory Ct. 69. George Wimpey & Co. Ltd. v. IRC, (1975) 2 All ER 45 at 49, (1975) 1 WLR 995 at 1000 (CA).

End of Document

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 2

CHAPTER 2 Of Transfers of Property by Act of Parties(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE MEANING OF TRANSFER OF PROPERTY

Section 5. “Transfer of property” defined.— In the following sections “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. In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

GENERAL PRINCIPLE Property from one person to another can be transferred in several ways, such as by way of private or a court sale, gift, will, inheritance, relinquishment, dedication, etc., yet, all these kinds of transfers are not subject to the application of TP Act. Under s. 5 of the Act, the term ‘transfer’ has been defined as an act of a living person whereby he conveys existing property to one or more living persons, and only those transactions that are covered under the term ‘transfer’ are subject to the application of this Act. Transfers of title that take place in other ways are governed by different enactments. For example, testamentary succession is regulated primarily by the Indian Succession Act, 1925 and for Muslims by their Quranic law; and intestate succession is subject to the rules laid down by the respective personal laws to which the deceased was subject to. Similarly, dedication of property for religious and charitable purposes is governed by several religious and charitable endowment Acts passed for this very purpose.

(IN) Poonam Pradhan Saxena : Property Law

Living Person One of the basic features of the definition is that it governs transfers only between living persons,1 or transfers inter vivos. The term living person includes a juristic person,2 a company,3 or association or body of individuals, whether incorporated or not, but does not include an idol of God4 or a temple,5 or even a court. It does not mean that the property cannot be transferred to God or an idol, but only that if a person dedicates property to God, this transfer would not be subject to the rules of the TP Act, but instead, would be governed by the relevant religious or charitable endowment Acts. The law contained in the TP Act does not affect the law in force relating to the transfer of property to or by companies, association or body of individuals or under a special statute.6 As a will operates from the death of a testator and not during his lifetime, it is also not a transfer within the meaning of the Act,7 but is subject to the rules provided under the Indian Succession Act, 1925. For instance, if A gifts land to B, the transfer is subject to the rules of TP Act, as both of them were living on the day of the transfer. However, if A leaves his property to B under a will, this conveyance would not be subject to the rules contained in the TP Act. Similarly, the court is not a living person and transfers made by the order of the court are also outside the application of the Act.8 For instance, if A purchases property from B, it would be subject to the rules under the TP Act, but if the property belongs to B, but under a decree/award, his property is sold through court and A purchases it, this transfer would not be subject to the rules of TP Act. Conveyance of Property Conveying of property involves creation of new title or interest in favour of the transferee.9 In conveyance, through this instrument of transfer, the title or rights are conveyed to the transferee, for the first time. The transferor is divested of the right conveyed and the transferee acquires it for the first time under this instrument. For example, a person A is the owner of a house, and permits B to stay in it. Such permission does not convey any right in favour of B with respect to the house, as it can be withdrawn at any time. After a month, B agrees to pay a rent of R s. 5000 per month, and A executes a lease deed in his favour. This lease is a transfer of an interest in his favour i.e., a right of owner to possess and enjoy his property. This right through this lease deed (an instrument of transfer) is conveyed in favour of B. The right that B acquires is a right in immovable property and he does that with the help of this instrument. It is now a right and not a mere permission, and his stay in the house will be governed by the terms of the lease agreement and not by A’s directions. Through this conveyance, B is vested now with a legal right to possess and enjoy A’s house and during his lawful occupation, A is divested of the right to possession and enjoyment of his own house. If, after a month, A executes a sale deed in favour of B, B now becomes the owner and through this sale deed, all the remaining rights in the house are also conveyed to him. The right to possess and enjoy was already conveyed, but what are now conveyed are the rights of title and of alienation. At the same time, A is deprived of these rights. A partition,10 a charge,11 a relinquishment of the reversionary rights by the reversioners,12 a surrender,13 a compromise,14 creation of an easement,15razinama and kabuliyat in the collector’s books,16 a right under a licence,17 or recitals in the deed of mortgages or petition Page 2 of 89

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books18 are not transfers as they do not convey the property or an interest in the property. A release deed can be a form of conveyance by a person having some rights or interests to another having a limited estate, i.e., by a remainderman to a tenant for life and then the release operates as an enlargement of the limited estate.19 A registered instrument styled as a release deed releasing the right, title and interest of the executant in any property, in favour of the release for valuable consideration, operates as a conveyance if the document discloses an intention to operate as a transfer.20 A deed of appointment is a transfer.21 Thus, where the donee of power of appointment exercises that power, it would amount to a transfer.22 If the deed shows a change of title or interest from transferor to transferee, without actually using the words convey or conveyance, it would be sufficient to constitute a valid transfer.23 PROPERTY The term property has nowhere been defined in the Act. It is used in the widest and most generic sense.24 Property is the most comprehensive of all terms which can be used, in as much as it is indicative and prescriptive of every possible interest which any person can have,25 and it is generally understood as anything that is capable of being owned. Thus, it means not only physical objects, but also includes rights and interests existing in, or derived out of, the actual physical object.26 The beneficial interest of the head of a religious endowment such as a mutt,27 an actionable claim,28 a right to a reconveyance of land,29 a right to obtain shares in a company,30 is property, but a stamp vendor licence is not property and thus cannot be inherited31. Interests in Property The term property includes an interest in property. An owner has three basic rights in the property, i.e., a right of ownership, of having the title to the property, secondly, an exclusive right to possess and enjoy the property and thirdly, an exclusive right to alienate the property in any manner that he likes. These rights are called interests in the property under Indian law, and are referred to as ‘real rights’ under English law. Where, either the complete rights in the property are transferred, or even one or two of these basic rights are transferred as between living persons, the transfer would be subject to the provisions of the Act. Where all the rights in the property are transferred, it would be a transfer of property, but where only some rights are transferred, it would be a transfer of an interest in the property.32 Absolute ownership is therefore, an aggregate of component rights such as the right to possession, the right to enjoying the usufruct of a land,33 a vested remainder,34 a contingent interest,35 and a lease36 of an immovable property. In Present or in Future The term ‘in present or in future’ qualifies the word ‘conveys’ and not the term ‘property’.37 It means that a transfer is a conveyance of such property that must be in existence at present, but Page 3 of 89

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whose conveyance may take place depending upon the terms of the contract concluded between the parties not only at present, but also in the future.38 It does not, therefore, refer to the conveyance of future property, but may include conveyance of an existing property in future.39 An assignment of an estate or interest which has no existence on the date of transfer, can, neither in law nor in equity operate according to its tenor.40 Such a purported transfer can only operate as an agreement to transfer and when the future assets come into existence it is seized on in equity by reason of such agreement.41 If there is an attempted conveyance of nonexistent property, it cannot operate as an immediate alienation. Made for consideration, it may be valid as a contract, and when the object to which it refers to comes into existence, equity taking as done that which ought to be done, fastens upon that property and the contract to assign thus becomes a complete assignment.42 A transfer of future property as opposed to transfer in the future may operate as a contract which may be specifically enforced as soon as the property comes into being, provided that the property is sufficiently specified.43 Transferor and Transferee the Same Person Though normally the transferor and the transferee would be two separate individuals or group of individuals, the expression ‘or to himself’ in s. 5 indicates that there may be a situation where the transferor and the transferee can be the same person. No person can transfer property to himself in the same capacity, but if he transfers property in one capacity to himself and receives it in some other capacity, then, such transfer is permissible. A person may thus convey land to, or vest land in, himself,44 in some other capacity.45 An apt illustration of it is that a person creating a trust can transfer the property from his individual capacity to himself as a trustee.46 Ordinarily, the trustee is the owner of the trust and has the title to the property, but where the trust specifies a category of beneficiaries or a specific purpose for which it was set up, the trustee cannot deviate from the purpose, or use the property for his own benefit. He does not possess a right to enjoy the property for his personal benefit, unlike an ordinary owner having the title to the property. So long as the purpose of the trust remains unfulfilled, the trustee does not acquire the power to sell the property at his pleasure. Similarly, if the beneficiaries, under the trust, create a separate class, till any one of them is alive, the property can be used only for their benefit and not at the pleasure of the trustee. It is only when either the purpose for which the trust was set up is fulfilled, or the class of beneficiaries for whose benefit it was created comes to an end by death, that the trustee in accordance, with the terms of the trust, may acquire the power to sell it. Only when the trustee becomes competent to sell the trust property can he sell it to either any one or even to himself. In such a case, he sells it as the trustee to himself in his individual capacity. These limited powers of sale vested in a trustee are conveyed to himself, and as an ordinary person he acquires a right to possess and sell it at his pleasure. Partition of Joint Family Property In a Hindu joint family, the coparceners collectively have the ownership of the coparcenary property. Each coparcener has an antecedent title to the property, but community of interest Page 4 of 89

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and unity of possession being the essential features of a coparcenary, all coparceners jointly possess the title to the property, a right to possess and enjoy it and a collective right to alienate it. After partition, the share of each coparcener is specified and instead of collective rights, they acquire individual rights over the property. Partition, therefore, involves a division of the rights in the property and does not involve any divesting or vesting of rights in favour of or against the owner. It is not as if through this instrument of transfer, the member of a joint family acquires the rights in the property for the first time. He was vested with these rights previously also, but enjoyed it collectively with other coparceners. After partition, these antecedent rights are demarcated specifically. The process of partition therefore involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severalty by them of the respective properties allotted to their shares. It does not amount to a transfer within the meaning of s. 5 of the Act.47 It can neither be called an exchange nor a conveyance between one co-owner and another,48 as it is in the nature of only a process of mutual renunciation by which common unspecified rights in larger extents are converted into exclusive rights over specific property.49 There is no acquisition of property in another by independent right.50 Each one has an antecedent title, a right to enjoy, and also a right to alienation, but these could be exercised only collectively by them. After partition, no new rights are conveyed in their favour, but these antecedent rights are specified or divided. As there is no vesting or divesting of rights or conveyance of the same for the first time through this partition, it does not amount to a transfer. Important Cases relating to Joint Family Property In VN Sarin v. Ajit Kumar Poplai,51 a joint family comprised of father and his two sons. The coparcenary property included a bungalow that was partitioned, and each of the coparcener got one-third of it. The portion, that came to one of the sons, A, was in occupation of a tenant, previously inducted into the premises by the father, who was the karta. A filed a suit for eviction against the tenant T, on the ground of bona fide necessity for personal use. The tenant resisted his claim and contended, amongst other grounds, that A had acquired the premises through a transfer. The implication of this contention is, that under s. 14(6) of the Delhi Rent Control Act, 1958, where a landlord/person acquires the tenanted premises by a transfer, no application for the recovery of possession of such premises shall lie on ground of bona fide possession, unless a period of five years has elapsed from the date of acquisition. In other words, if it is held that the property here was acquired by A through a transfer, then he has to wait for a period of five years before he can institute a suit for eviction against him. Thus, the present suit would become premature and would be dismissed. On the other hand, if the mode of acquisition, i.e., the partition does not amount to a transfer within s. 5 of the TP Act, then the suit would not be premature, and can be decided on merits. The question before the court therefore was; whether partition of coparcenary property; or acquisition of property through partition amounts to a ‘transfer’ within the meaning of s. 5 of the TP Act. What was unique in this case, was the fact, that right from the court at the initial level i.e., Rent Controller, to Rent Control tribunal, the High Court of Delhi and even the Supreme Court on this issue, gave concurrent findings. Their view was that the partition of the coparcenary property does not amount to transfer within the meaning of s. 5 of the TP Act. The court held that the joint family property is owned, enjoyed and can even be sold by all of them jointly. When the Page 5 of 89

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property is partitioned, there is a division of all these rights that they possessed, collectively into individual or specific rights. Thus, partition of joint family property does not amount to a transfer within the meaning of the Act. Similarly in Girja Bai v. Sadashiv Dhundiraj,52 the Privy Council observed that ‘partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers’. In CIT v. Keshavlal Lallubhai Patel,53 the father had thrown all his self-acquired properties into the joint family common hotch pot. The family comprised of the father, his wife and two sons, one of whom had attained majority. Pursuant to an oral partition, this property was divided and now stood in the exclusive names of the members of the family. The question before the court was whether this oral partition was, in fact, an indirect transfer of the properties allotted to the wife and the minor son. The apex court held that this oral partition was not a transfer in its strict sense so as to attract the provisions of s s. 16(3)(a)(iii) and (iv) of the Indian Income Tax Act, 1922. Again, in Mohar Singh v. Devi Charan,54 the property was jointly owned by two co-owners, part of which was in occupation of a tenant. This property was partitioned between them, and A, in whose share fell the tenanted premises, filed a suit for eviction of the same. Similarly in VN Sarin v. Ajit Kumar Poplai,55 the court, here, also ruled that partition of joint family property does not amount to a transfer within the meaning of s. 5 of the TP Act, and observed: It is true that a partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co-sharer or co-sharers.

As partition of joint family property is not a transfer within the meaning of s. 5 of the Act, the doctrine of part performance is not applicable to an unregistered deed of partition.56 Even if a partition involves release it cannot be called a release,57 but where a deed indicates no elements of partition and its operative terms and tenor decide its nature, the deed would be a release.58 Family Arrangements A family settlement is different from a formal partition. It is an informal arrangement where the members of the family agree to divide the property amongst themselves, not necessarily in accordance with the quantum as specified in law or according to their entitlement. It can take into its fold non-family members as well59. Once effected, it is binding on all the members who were parties to it and is enforceable in a court of law. Even though there may be a conferment of rights with respect to property in favour of members, it is not a transfer of property, as it simply acknowledges and defines the title of each member60 and does not create new title.61 It may be oral or in writing. Where no right in praesenti is created such family settlement cannot be treated as inadmissible on grounds that it is not registered62. However, a deed of family arrangement is valid, and a subsequent sale of property cannot be challenged, more so where the parties enjoyed the shares after payment of taxes on the strength of the family arrangement executed by the parties in presence of panchayatdars.63

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Will Since a Will takes effect from the death of the testator, it is not a transfer inter vivos, or between living persons, but is from a person, who is dead to the legatee and therefore, it will not be subject to the provisions of the TP Act. It would be governed by the rules provided under the Indian Succession Act, 1925. The question whether the acquisition of property or title through a testamentary disposition amounts to transfer of property, has come up in several cases. In NRamaiah v. Nagaraj S,64 a person died leaving behind his wife W, and his brother’s son, his nephew Br S. The nephew applied to the court for grant of letters of administration and claiming that the deceased had left his total properties in his favour under a Will. This claim was contested by the widow W, on the ground that the Will was a forged document, and she, as the legally wedded wife of the deceased was entitled to the total properties. The nephew sought and obtained a temporary injunction from the court to the effect, preventing or restraining the widow from transferring or alienating the suit properties till the case was decided by the court on merits. The widow was therefore asked to maintain the status quo with respect to these properties. Six months later, the widow executed a Will of these properties in favour of her brother and died three months later, while the suit relating to the title dispute was pending in the court. Her brother applied for substitution of his name in the place of the testatrix. Br S, objected to this substitution on the ground, that as the widow was specifically directed by the court not to transfer or alienate the property and was to maintain the status quo, a transfer of property, under a Will, so as to create rights in a third party would be against the order of the court and hence void, and such a transferee therefore would have no locus standi to be substituted in place of the deceased testatrix. The main issue before the court was whether execution of a Will amounts to a ‘transfer’ or alienation within the meaning of the TP Act. If it does, then the execution of will was against the express directions of the court, and would be void. Consequently, the legatee under a void Will would have no right to substitution. But, if a Will is not included as a mode of transfer within the meaning of s. 5, then the legatee under this valid Will, would be entitled to step into the shoes of the testatrix, and continue the litigation. The court held that by making a Will, a testator neither changes title or possession in regard to a property. Neither is the nature or situation of the property altered, nor is anything removed or added to the property, by such Will. Pointing out the distinction between a transfer and a Will, the court said: the difference between a transfer and a Will are well recognised. A transfer is a conveyance of an existing property by one living person to another (that is transfer inter vivos). On the other hand, a Will does not involve any transfer, nor effects any transfer inter vivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into effect after his death. In other words, a Will regulates succession and provides for succession as declared by it (testamentary succession) instead of succession as per personal law (non testamentary succession). The concept of transfer by a living person is wholly alien to a Will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on the happening of a specified contingency, a Will is revocable and comes into operation only after the death of the testator. Thus, to treat a devise under a Will, as a transfer of an existing property in future is contrary to all known principles relating to transfer of property and succession.

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The court therefore, held that a Will does not amount to a ‘transfer’ within the meaning of s. 5 of the TP Act, and allowed the legatee to pursue the litigation on behalf of the testatrix. In Kenneth Solomon v. Dan Singh Bawa,65 the issue again was, whether devolution of interests in property through inheritance or testamentary succession (Will) would amount to ‘transfer’ of an interest in the immovable property within the meaning of s. 5 of the TP Act. The dispute related to the tenancy rights of the tenant, which he had bequeathed in favour of his heirs. On his death, the beneficiaries under his Will took possession of the tenanted premises as the contract of lease was still subsisting. The landlord filed a suit for eviction on the ground, that this transfer of the premises amounted to a violation of the provisions of the Delhi Rent Control Act, 1958, as the tenant had ‘parted with possession’ of the premises in dispute without the permission of the landlord. The Delhi High Court here differed with the Karnataka High Court’s judgment and observed: Will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. One characteristic of the Will as distinguished from other kinds of instruments disposing of property is its revocable nature as it is ambulatory until the death of the testator. Till the death of the testator, it is barely an expression of intention to deal with the property in a specific manner, but the moment the testator dies, it has the effect of vesting the property, that is the subject matter of the bequest on the beneficiary. At that point of time, it would have the same effect as a transfer of possession by sale or mortgage. The process of parting with possession thus starts on the execution of the Will, but matures only on the death of the testator. The tenancy rights disposed under a Will would vest in the devisee immediately on the death of the testator.

Holding here that a violation of the lease agreement had taken place by bequeathing tenancy rights, the legatee under the Will was directed to vacate the premises. What is pertinent to note here is the fact that the two cases, though related to testamentary succession, differed fundamentally with each other. The main issue in Ramaiah’s case was whether bequeathing of rights under a will, amounted to transfer/alienation of rights under the TP Act, which the court answered in negative. In the present case, the issue was whether a person ‘parts with possession’ of the property through a devise of will, and not whether such parting of possession amounts to a transfer within the meaning of s. 5 of the TP Act. The court itself explained it in the following words: The transfer of property according to the definition given in Section 5, of the Transfer of Property Act, means an act by which a living person conveys property in present or future to one or more other living persons or to himself and one or more other living persons. True, these words exclude transfer by Will, for a Will operates after the death of the testator.

In relation to the violation of the tenancy contract, the court said that the act of making a will, by itself, would not amount to parting with possession of the premises, as a will by its very nature is revocable, and does not vest possession, or for that matter, any right in the legatee. Through a will, a person parts with possession only after his death, and therefore, though vesting and divesting of the rights in the property take place, the moment the testator dies, the whole transaction would be governed by the relevant succession laws and not by the Page 8 of 89

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provisions of the TP Act. WHAT MAY BE TRANSFERRED

Section 6. What may be transferred.— Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,— (a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred; (b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby; (c) An easement cannot be transferred apart from the dominant heritage; (d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him; (dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred; (e) A mere right to sue cannot be transferred; (f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable; (g) Stipends allowed to military naval, air-force and civil pensioners of Government and political pensions cannot be transferred; (h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section Section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee; (i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

GENERAL PRINCIPLE Property and interests in property as a general rule are transferable. This rule of transferability is based on the maxim alienation rei prefertur juri accrescendi, which means law favors Page 9 of 89

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alienation to accumulation. Therefore, any attempt to interfere with the power of the owner to alienate his interest in the property is frowned upon by the law. At the same time, where either the transferor does not possess a valid title to the property and is merely hoping to acquire one in future, or has an interest in property that is solely by its very nature created for his personal enjoyment, or as a rule of public policy, transfer of such interests in property should not be allowed to be transferred, a transfer of property in such cases by him, are prohibited. It is only when the transferor has a present subsisting title or interest in the property and is capable of delivering the same to another, that he is permitted to transfer it. The transferor may get the physical possession of the property in future, but if he has a subsisting title to it in present, the restriction on his power to alienate the same cannot be applied. For instance, A hopes to succeed to his father’s property on his death. His acquisition of this interest is based on a hope or expectancy that may or may not materialise. If he is permitted to transfer the same, it may create confusion and conflict of claims later on, and therefore he is not permitted to do so. However, if the father dies, and through his will bequeaths his property to his wife for her life and after her, the son will take the possession of it as an absolute owner, the son has a present subsisting title to the property the moment the father dies. It is only the possession of the property that is delayed till the mother dies, and he can validly transfer the property and convey a good title to the transferee. Similarly, a person in the capacity of an employee is drawing a salary for the work that he does for an organisation. This salary is for his personal services rendered and cannot be transferred. But once the salary is paid to him, it can be transferred validly. Therefore, under the Act, ten exceptions have been provided to the general rule of alienability of the property. Assignment of After-Acquired Property under Common Law Property which, at the date of the assignment, is either not in existence, or not the grantor’s property, is not transferable at common law,66 unless the grantor already has a potential property in it as its present owner or possessor of that which is expected to produce it.67 Thus, it has been held that a transfer or assignment purporting to convey goods which will afterwards be in the grantor’s house, does not pass the interest in it which the grantor acquires subsequently.68 Such an assignment is ineffective at law as an assignment69 as regards future acquired goods, unless followed by delivery or ratified by some act done by the grantor with that view after he has acquired the property, but the mere bringing of goods onto the grantor’s premises is not necessarily such an action.70 Chance of an Heir Apparent The chance of an heir apparent succeeding to the property of an intestate; the chance of a relation obtaining a legacy on the death of a kinsman, or any other possibility of a like nature cannot be transferred.71 Heir Apparent The term ‘heir apparent’ is an English term and is based on the maxim nemo est heres viventis Page 10 of 89

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which means that a living person does not have any heir. An heir is a person who succeeds to the property of another on his death if such person wills the property to him, or dies intestate. Intestate refers to a person who dies leaving behind property but no specific instructions, capable of taking effect in law with respect to its disposal, i.e., he does not leave behind a valid will, and his property goes in accordance with the laws of inheritance that are provided under the law that he is subject to at the time of his death. Therefore, who the heir will be can be determined only at the time of the death of a person, and not beforehand. Chance In case a person hopes to succeed to the property of an intestate, what and how much, if at all, the property available for inheritance can again be ascertained at the time when the owner dies. These two things, i.e., who the heir will be and whether the property would be available, can never be postulated with concrete certainty before the death of the owner. There may be a possibility that no property is left at the time of the death of a person, as it may have been disposed of by him during his lifetime or might have been made the subject of a testamentary disposition. It may also be possible that the heir apparent may die before the very person whose property he was hoping to succeed to. Thus, there is a hope, expectancy or a chance that he may succeed to the property, but no certainty, no definite concrete reality that such an eventuality must happen. This is the reason why the Act uses the expressions, ‘chance’ and ‘heir apparent’, and not heir. The term ‘apparent’ indicates a probability or possibility, and transfers that are based on bare chances or possibilities are not permissible. Transfer of Spes Successionis is void ab initio The chance of an heir apparent to succeed to the property of an intestate therefore cannot be transferred. This chance is also referred to as spes successionis. If a person transfers this chance, the status of this transfer in law is void ab initio. It does not convey any right in favour of the transferee, even if the transferor who transfers a chance may, in fact, become the owner of the same property in future. For example, a family consists of father F and a son S. F is the owner of certain properties. As the ownership is with F, during his lifetime, no one else including the son can ordinarily sell the property without his consent. The son is the heir apparent, i.e., if F dies intestate S. would inherit this property. As S. is the heir apparent, his succession to the properties in the future is a chance due to two main reasons, first, since F is the owner, he may sell it, or dispose it of in any other manner or may make a will in favor of any one, and nothing may be left for S. Secondly, the son may die during the lifetime of the father. Thus, if the son, during the lifetime of the father, transfers this property without the consent of the father, the transfer would be void as it is expressly prohibited by the Act. For instance, in the same example, let us take a situation, where the son professes to transfer the property of the father to X, with a conviction that he is the future owner of the property, and assures X, that on F’s death, he would deliver the possession of the property. The next day F dies and S. in fact becomes the owner, but now fails to or refuses to deliver the possession of the property. X cannot press for delivery of possession of the property, as this transfer was void in its inception and cannot be Page 11 of 89

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enforced. However, he would be entitled to have his amount back, if he had paid consideration. Similarly, a family consists of the father F, his wife W, and a daughter D. F wants to secure the property he owns in favour of W, but instead of making a will, he asks D to sign a release deed to the effect, that she would not claim her share of inheritance out of the property of F, when he dies. D signs the release deed in favour of W. When the father dies, she claims half of his property, by way of his heir. She can do so, as what she had transferred by way of the release deed was her chance to succeed to the property of the father, and as that is expressly prohibited under the Act, the same was void, and she will not be bound by it.72 In Official Assignee, Madras v. Sampath Naidu,73 a mortgage executed by an heir apparent was held as void by the court even though he subsequently acquired the property as an heir. The Chance of a Relation obtaining a Legacy on the Death of a Kinsman The chance of a relation obtaining a legacy on the death of a kinsman cannot be transferred.74 A legacy is money or property given under a Will. If a person expects to receive property under a legacy, the same cannot be transferred by him before the death of the testator. For instance, X bequeathes his house under a Will in favour of Y. Till X is alive, Y has a bare chance of obtaining this legacy. It is a chance, as Y can become the owner of this property only if : (i) X dies before Y; (ii) X does not revoke this Will or bequeathes the property in favour of anybody else; and (iii)The property bequeathed to Y is available at the time of the operation of the Will, i.e., it has not been disposed of by X during his life time. Therefore, Y is prohibited from transferring the property which is bequeathed to him before the operation of the Will. Likewise, let us take the case of a reversioner, who hopes to get the property on the death of another relation. He does not have a vested interest in the property, but has only a contingent interest in it. If he dies before the relation on whose death he was hoping to succeed to the property, his heirs do not get the property and it reverts back to the original owner. For example, A and B were two brothers constituting a Hindu joint family. In 1944, A died leaving behind a widow, W. His interest in the joint family property will be taken by his widow, and his brother B would be called a reversioner. The chance of B to take the property on the death of W is a mere expectancy and cannot be transferred. It is an expectancy or probability as B may die during W’s lifetime. It is only if he survives her, that he would become the owner of the property on her death. Therefore, if the reversioner during the lifetime of the widow transfers the property that is at that time in possession of the widow, such transfer will be void even if the next day of the transfer the widow dies, and the reversioner, in fact, becomes the owner of the property. Similarly, on the death of an undivided Hindu coparcener, his widow took possession of the Page 12 of 89

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property. She sets up an adoption deed allegedly executed by her husband, authorising her to take a child in adoption. The deed of adoption is challenged by the reversioner who is the brother of the deceased husband. In order to meet the litigation expenses, the reversioner transfers the property that was in the possession of the widow. The court holds that the deed of adoption is a forged document, and the case is decided in favour of the reversioner, cancelling the adoption. The next month the widow dies, and the reversioner takes possession of the property as its owner. The transferee presses for delivery of possession of the property. This transfer that is void cannot be acted upon by the transferee, nor can be enforced in the court. Thus, a mere possibility cannot pass by succession, bequest or transfer, so long as the right has not actually come into existence by the death of the present owner.75 The chance of a Hindu reversioner, is an interest expectant on the death of a qualified owner and not a vested interest, and as such, its transfer76 or relinquishment77 or a contract to transfer the expectancy when the reversioners enter into possession78 is a nullity, and has no effect in law. However, a reversioner may, under certain circumstances, by being a party to a compromise in the nature of a family settlement and by taking the benefit of compromise, be debarred from claiming as a reversioner.79 Similarly, the transfer or relinquishment of a prospective right as part of a family settlement or of a compromise by rival claimants to property stands on an entirely different category from the bare transfer of a spes successionis.80 Where some of the reversioners of a male proprietor executed a deed of relinquishment of their shares in favour of the other reversioners, in consideration of the latter having undergone much trouble and expense in connection with a declaratory suit, and which had been successfully fought in respect of an alienation by the widow of the said proprietor, it was held that the deed was in effect and must be treated as a deed of assignment of reversionary rights and since the assignment was made by some of the reversioners in favour of the remaining reversioners it was a perfectly valid assignment.81 In Ananda Mohan Roy v. Gaur Mohun Mullick, 82 the issue before the Privy Council was, whether a contract by the nearest reversioner to sell the property which was in the possession of a widow as an heir, was valid and enforceable, and it was held that the prohibition under s. 6(a) would become futile, if agreements to transfer property, where acquisition of title was based on possibilities, could be enforced. Hence, the Privy Council held that such a contract was void and unenforceable in a court of law. The position under Mohammedan law is also the same.83 Thus, a Muslim daughter cannot validly agree to relinquish her share in her father’s property which might devolve on her at his death.84 Agreement to transfer an expectancy is also void. Under English law, though the transfer of an expectancy is void, however, in equity the assignment of an expectancy for consideration is valid,85 but is subject to the rules of estoppel.86 Renunciation of Expectations for a Consideration According to the literal interpretation of s. 6 (a), a person can neither transfer nor renounce Page 13 of 89

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either a chance of inheriting the property in future or the chance of obtaining a legacy on the death of a kinsman and even if he does that, he would not be bound by such transfer /renunciation as the same is expressly prohibited. However, judicial interpretation of this section favours imposition of a rule of estoppel as against such transferors who without having any present interest, agree to transfer the property based on future possibilities for a consideration and later try to avoid the same under this legal rule. In Gulam Abbas v. Haji Kayyam Ali 87, a man ran into financial difficulties almost to the point of insolvency. He had four sons, A, B, C and D. A and B paid his debts and C and D executed deeds in favour of A and B acknowledging that in lieu of the such payment of debts of the father, the rights of inheritance at the time of the death of the father from his property would also be available only to A and B, and C and D would not raise any objections to that effect. Upon the death of the father, however, both C and D wanted to enforce their inheritance rights on the ground, that the actual implication of the deed was a renunciation of future rights of inheritance in favour of the brothers, and as such renunciation is void in terms of s. 6(a), they would not be bound by the same. The Apex Court held that a bare renunciation of an expectation to inherit cannot bind the expectant heir’s conduct in future, but if the expectant heir goes further and receives a consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter-vivos, the expectant heir could be debarred from setting up his rights when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement. Here, the two brothers who executed the deeds relinquishing their claims for consideration could not, when rights of inheritance vested in them at the time of their father’s death claim these; as such claim would be barred by estoppel. It was irrespective of the question whether the deed could operate as valid legally and effective surrender of their spes successionis. Similarly, in Hameeda v. Jameela 88, for a consideration and assignment of some property, the daughter relinquished her chance to obtain a share in her father’s property. Both she and her husband purchased property with this amount. Upon the death of the father she claimed inheritance on the ground that since the earlier renunciation was of spes successionis, she was not bound by it. The court held that it was not a bare renunciation but was followed by the daughter receiving money from her father that was sufficient for her to purchase land. She having enjoyed the benefit could not claim that she was not bound by her relinquishment. It was possible that the father after having entered into this arrangement did not make a testamentary disposition of the property that he might have done had it not been for the relinquishment arrangement. The court said that the receipt of money by an heir apparent in lieu of his/her share in the property of his/her father during his life time would estop the heir apparent from claiming the share of the property of the father on the later dying intestate. The law as interpreted by the judiciary is that if the heir apparent renounces/transfers his or her share in the property, he would not be bound by such renunciation/transfer, but if for renunciation some benefit in the form of consideration or property has been received, such benefit would operate as an estoppel against the heir apparent and he would be prevented from claiming the property if and when the succession opens. Future Possibilities of a Like Nature Any other possibility of a like nature cannot be transferred.89 The term ‘of a like nature’ indicates that those possibilities that are similar to the one explained above cannot be Page 14 of 89

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transferred, i.e., those based on hope or expectancy. For instance, a person cannot transfer the prize money that he may win in a lottery or the monetary consideration that he hopes to get after the completion of a sale, as there is a possibility that the sale may never materialise or he never wins a lottery. Similarly, a fisherman going out to sea to catch fish cannot transfer the possible catch that he may make, as it may be possible that he may not be able to catch any fish. Thus, the mortgage of income derivable in future from scavenging work is invalid.90 The chance of receiving a gratuitous payment at the discretion of an employer for services being or about to be rendered,91 or the chance that future worshippers will give offerings to the temple,1 or an agreement for the sale of otkarnam lands,2 are mere possibilities and cannot be transferred. A right to pala or turn of worship is not transferable.3 Neither the temple, nor the deities nor the shebaiti right can be transferred by sale for pecuniary conditions, and such transfer is void ab initio.4 However, the right of a Mahabrahmin to receive offerings made by pious Hindus5 is a valuable, definite and tangible right; is not merely a possibility,6 and is therefore, capable of being transferred.7 Future Property Property of any kind may be transferred,8 but interest in property arising in future cannot be transferred.9 A transfer of future property only amounts to a contract, which may be enforced when the property comes into existence.10 A Right of Re-entry A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property.11 For instance, where the transferor transfers the property subject to a condition that upon the transferee committing a breach of condition of the agreement, the transferor would have a right to enter the premises, this right of entry that is not coupled with any other right and is conditional upon the transferee committing a breach of a condition, is not transferable. For example, A purchased goods from B, on a hire purchase agreement. The agreement contained a clause that after purchase, A would take the property and would pay the installments on time. If he fails to pay the installments, B would have a right to enter A’s premises and take possession of the property. This right of re-entry is a personal right of B and cannot be transferred by him. If he transfers this right of entry, say, to his creditors, the same would be void.12 EASEMENT An easement is a right which the owner or occupier of certain land13 possesses for the beneficial enjoyment14 of that land, to do and continue to do something,15 or to prevent and continue to prevent something from being done, in or upon, or in respect, of certain other land that is not his own.16 It is a privilege without profit that the owner of one tenement has a right to enjoy in respect of that tenement, in or over the tenement of another person, where the owner of the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.17 It includes profits pendre, i.e., a right to enjoy the benefits Page 15 of 89

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arising out of land. It also includes a right to enjoy the land under the water of another,18 the right to dry clothes over flat masonry and roofs of shops,19 the right to open and shut the windows of a person’s house,20 the right of way for municipal employees over the land of other.21 Where A, as the owner of a house has a right of way over the land of another for the purposes connected with the beneficial enjoyment of his own house, it is an easement. Similarly, if A has a right to go to his neighbour’s house for the purpose of taking water for his household, it would be an easement. Other examples of easements are the right to erect scaffolding upon the neighbour’s property to build or paint one’s own wall;22 or to stock manure in another’s field.23 The land for the beneficial enjoyment over which a right of easement exists is called the dominant heritage; and the owner or occupier of that the dominant owner, and land on which the liability is imposed, is called the servient heritage and the owner or occupier of it is called the servient owner. An easement cannot be transferred apart from the dominant heritage24 to which, by the nature of the right, it is attached.25 This prohibition does not touch the creation of new easements.26 Interest Restricted to Personal Enjoyment An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.27 As the right is personal in character, it is untransferable. For instance, two brothers partition a property and give a right of pre-emption to each other, i.e., if any one of them wants to sell his portion, he must first offer it to the other brother, who would have a preferential right to buy it. This right is personal to the brothers and cannot be transferred by them to a third party, and if they do so, such transfer would be void. A right to receive voluntary and uncertain offerings at a worship;28 or as a co-sharer;29 priestly offices or emoluments attached to it,30 office of a mutwali of a wakf;31 or of shebait of a temple,32 or service tenures, e.g., ghatwali tenure in Bengal;33 personal imams;34 a right of preemption;35kharkrobi right are interests restricted to personal enjoyment and cannot be transferred.36 Right to Future Maintenance A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred.37 This term ‘whatsoever manner arising secured or determined’ is very exhaustive and covers cases where this right has been created either under a will, deed or compromise. Thus, the right of a woman to either receive maintenance under a decree or award of the court from her husband, or her ex-husband, or from his property on his demise, or under a will is a personal right. It is neither transferable nor can it be attached by a court’s decree.38 If a right to receive maintenance were made transferable, then it would go against the very purpose for which maintenance laws are passed. The very objective of maintenance is that a person unable to maintain himself or herself should not be left destitute, and should be prevented from being in a state of vagrancy. If it is allowed to be transferred, it will defeat this very purpose. It is need based, and the liability on the provider cannot be extended to a transferee of future Page 16 of 89

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maintenance. But where property is given to a Hindu widow for her maintenance, the transfer of the property during her life is not transfer of the right to maintenance, and is valid and effective during her lifetime.39 A bare corporeal and personal right of future maintenance is inalienable.40 Where a Raja who was the owner (in full right) of certain property, transferred it to a trustee upon trust to pay him certain allowances per month from the trust property explaining in the deed of settlement that it was for the purposes of maintenance, it was held that it was not a restricted right.41 LEGISLATIVE HISTORY This clause was added to the TP Act in 1929, to set at rest the judicial controversy that had developed on the point that when the amount of maintenance was fixed under a court’s decree or award, whether it could still be untransferable. The definition is presently very comprehensive. Mere Right to Sue A mere right to sue cannot be transferred.42 ‘Mere’ means that the transferee has acquired no interest than a bare right to sue. A right to sue is again a personal right that only an aggrieved party can exercise to seek a remedy in a court of law. Therefore, it is not assignable. For instance, A and B enter into a contract for sale of property. The contract contains a clause that if A fails to execute the transfer deed within a month, he would have to pay double the amount of advance paid to him by B at the time of the agreement. This claim of damages is personal to B and is unassignable. Similarly the clause also contains a condition that if B fails to pay the entire amount by a particular date, he would have to pay a certain amount as damages. This right to claim damages again, is personal and unassignable. However, in the same case, if B fails to pay this part of the money and A sells the property to C along with a right to recover damages from B, this right is assignable and a suit filed by C to recover damages from B would be valid. There is a distinction between property, an interest in property and a right to sue. A transfer of a right to recover profits which arise out of land along with a transfer of land, is assignable.43 Similarly, where the property is transferred along with a right to recover damages or compensation in respect of the property, the assignment is valid.44 A right to sue for damages resulting from a breach of contract,45 a right arising out of torts,46 a claim to recover damages from an agent for negligence in failing to collect rent47 or a right to sue him for accounts and to recover such sums of money,48 a claim to damages for use and occupation from a tenant,49 a bare claim for past mense profits,50 a right of indemnity of an agent against the principal,51 is unassignable. A sale by an official assignee of land in possession of alienee from an insolvent is a right to litigate, and therefore invalid.52 However, a transfer of arrears of rent with immovable property,53 an assignment of property in the hands of an agent,54 the assignment of a share in the assets of a partnership,55 a partner’s right to call upon the other partners to account,56 a right to be indemnified,57 a right to contribution,58 a claim for the recovery of the earnest money upon failure of the other party to perform his part of the contract,59 a transfer of a right to receive from the lessee an installment of revenue together with an interest which the Page 17 of 89

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lessee was bound to pay under the terms of a lease,60 is not a mere right to sue and is assignable. Where a person purchases a tank and brings a suit by virtue of a covenant running with the land, it was held that it cannot be said that what was transferred was a mere right to sue. The right here was incidental to the enjoyment of the property.61 Offices and Salary A public office cannot be transferred. Similarly, the salary of a public officer cannot be transferred whether before or after it has become payable.62 The term public office or public officer, have not been defined in the TP Act. By ‘public officer’ it is meant a person who is appointed to discharge a public duty, and receives a monetary return for it in the form of a salary. As the salary is a return for his personal services, it is neither transferable nor attachable. The occupant of a Gavawali gaddi does not hold a priestly office or an office of a religious nature and transfer of such gaddi would be a transfer of a business with its assets and goodwill and is therefore valid.63 A gratuity payable to the legal representative of a public officer can be transferred.64 A railway servant cannot agree to the attachment of part of his salary.65 However, an agreement by which a person agreed to pay a certain proportion of his income to his brother in consideration for his having been maintained and educated by the latter, does not attract this provision merely because that person subsequently becomes a government servant. The amount agreed to be paid can be paid from his savings or any other source, and therefore it does not amount to transfer of a public office.66 Pension like a salary, is a sum of money periodically payable by the government to an exserviceman, or a person who has ceased to be in employment. A pension is untransferable,67 so long as it is unpaid and in the hands of the government, but the moment it is paid to the pensioner or his legal representative it can be attached. Pension must be distinguished from a bonus or rewards that are transferable. Stipends, etc. Stipends allowed to military, naval air force and civil pensioners of the government and political pensions cannot be transferred.68 Political pension refers to pensions and allowances paid to political prisoners, or pension granted under a treaty entered into by the Government of India with another sovereign country. What is made non-transferable is the stipend paid to civil pensioner and not the pension of that civil pensioner.69 Pension means periodical payments of money by the government to the pensioner,70 or allowance or any other stipend granted not in respect of any right, privilege perquisite or office but on account of past services or particular merits or as compensation to the dethroned princes, their families or dependents.71 A bonus given by the government,72 or an allowance made in lieu of a presumed grant of lands,73 or grant of land in lieu of pension is Page 18 of 89

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not pension;74 and therefore, is transferable. There is no presumption that jagir is a political pension.75 As aforesaid, a pension retains its character as long as it is unpaid and in the hands of government, but as soon as it is paid to the pensioner or his legal representatives or agent it can be attached or transferred.76 Transfer Opposed to the Nature of Interest No transfer can be made insofar as it is opposed to the nature of the interest affected thereby.77 Thus, things dedicated to public or religious uses,78 regalia, heirlooms and debutter property,79 or service inam,80 cannot be transferred. Transfer for Unlawful Object or Consideration No transfer, which is for an unlawful object or consideration, is permissible.81 The object behind this provision is to prohibit transfers where the object is unlawful or the consideration behind the transfer is for a purpose opposed to public policy. For instance, a transfer of property so that it could be used as a brothel, a gambling den or for illicit cohabitation, by way of payment of a bribe,82 to stifle a prosecution,83 or to seek adoption of a child,84 or marriage of a daughter,85 would be opposed to public policy and therefore void. It is also in consonance with s. Section 23 of The Indian Contract Act, 1872 which provides that a consideration or object is unlawful if (i) it is forbidden by law; or (ii) is of such a nature that it defeats the provisions of any law; or (iii)is fraudulent; or (iv)involves or implies injury to the person or property of another; or (v) the court regards it as immoral, or; (vi)is opposed to public policy. Thus, where there is a sale of the property to defeat the rights of the creditors, an assignment of money to defeat the provisions of insolvency Act,86 a sub-lease of a farm for sale of opium,87 or transfer of occupancy land where prohibited by law,88 or lease of property for the use of it as a brothel,89 the same would be unlawful. However, where the transferor did not know of the intended use,90 it would be valid. Transfer of property to a prostitute for future cohabitation,91 or a bequest in a Will conditional on the continuation of immoral relations92 is for unlawful consideration as it is for immoral purpose, and the case would be covered by this provision. However, a mortgage93 or a gift94 in consideration of past cohabitation would be valid. Transfer to a Person Legally Disqualified A transfer to a person legally disqualified to be a transferee is not permitted.95 Under s. 7, the transferee must be competent to contract and should not have been disqualified legally. While competency to contract involves the twin elements of attainment of the age of majority and soundness of mind, legal disqualification refers to certain disabilities that have been imposed specifically by the statutes preventing certain category of persons Page 19 of 89

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to be transferees in certain cases and in specific capacity. For instance, if an officer or any person is assigned officially a duty in connection with the sale of property, he cannot purchase the same himself and in such cases, he would be legally disqualified to be a transferee.1 Similarly, the TP Act prohibits a judge, a legal practitioner or an officer connected with a court from purchasing an actionable claim.2 Though a transfer to a minor is void,3 yet, a minor is not disqualified to be a transferee,4 and can be a purchaser.5 A mortgage in favour of a minor who has advanced the whole of the mortgage money is enforceable by him or on his behalf.6 Similarly, a minor in whose favour a valid sale deed is executed, is competent to sue for the possession of the property conveyed thereby.7 However, a lease executed by a minor would be void.8 Statutory Prohibitions on Transfer of Interest A tenant having an untransferable right of occupancy9 cannot transfer his interest.10 This clause contains an exception to the general rule that all tenancies or leaseholds are transferable, and gives effect to the rules provided under different enactments, whereby certain categories of leasehold interests or tenancies are made untransferable. For instance, under the Bengal Tenancy Act, 1885,11 a land in the possession of a ryot is untransferable. If he transfers it, the landlord is empowered to re-enter on the ground that the ryot has abandoned his holdings. The same is the situation if he mortgages a holding that is untransferable. The mortgagee would be treated as a trespasser, and the tenant would be deemed to have abandoned his holdings. Non-permanent tenures created before the passing of the Act12 are untransferable,13 but permanent tenures can be transferred.14 The mortgagee of an untransferable holding,15 a cosharer landlord taking possession of an untransferable holding after purchase of the share,16 or a stranger who makes a purchase and afterwards acquires a share in the landlord’s right,17 is a trespasser and liable to be evicted. A farmer of an estate in respect of which default has been made in the payment of revenue or the lessee of an estate under the management of the court of wards cannot assign his interest as such tenant, farmer or lessee.18 PERSONS COMPETENT TO TRANSFER

Section 7. Persons competent to transfer.— Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and

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in the manner, allowed and prescribed by any law for the time being in force.

CAPACITY TO TRANSFER PROPERTY For a person to be competent to contract, two things are necessary, i.e., he should have attained majority and be of sound mind, and should not be disqualified to transfer property under the law to which he is subject to. Thus a person who is competent to contract can validly transfer the property if: (i) he is the owner; (ii) if he is not the owner, then he must possess authority sustainable in law to transfer the same. The term ‘authority’ can be personal, under an agency or acquired under a law or statute or under the direction or permission of the court. It can be in the shape of a power of attorney or in the capacity of an agent. The karta of a joint Hindu family, though not the sole owner of the property, is authorised to transfer the same. His authorisation is specifically limited by terms like legal necessity, benefit to the estate, or for performance of indispensable duties. Similarly, a minor’s guardian is authorised to alienate the property of the minor with the permission of the court. An executor or administrator can dispose of the property of a deceased.19 A receiver has the authority to transfer property under the directions of the court. Therefore, a contract or transfer by a minor,20 or of a person of unsound mind,21 or where the property is under the management of Courts of Wards,22 or a judgement debtor whose property is being sold in execution by the collector,23 is void. In absence of title, a person should have authority to transfer the property.24 An agent managing the property of the principal,25 or a de facto guardian of a minor,26 is not competent to sell the property. Thus, where the duties of a person extended only to collect the rent and manage the estate, it does not empower him to sell the estate.27 Similarly, where the guardian of a minor sells his property without obtaining permission from the court, such a sale would be by a person not competent to transfer the same, and the sale can be set aside.28 It has been held in Shakuntala Devi v. State of Jharkhand,29 that despite this statutory prohibition to execute a sale deed, the Registrar has no authority to refuse registration on the ground that the vendor had no title to the property. He is under a duty to only see whether the document is duly stamped or not? OPERATION OF TRANSFER

Section 8. Operation of transfer.— Page 21 of 89

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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.Such incidents include, when the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for the permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

GENERAL PRINCIPLE The clause ‘unless a different intention is expressed or necessarily implied’ shows that this section operates in absence of an express or implied contract between the parties. If the contract provides otherwise, the provisions of this section would not have any application. The rule enunciated here is designed to avoid confusion or speculations with respect to ‘what, if any’ in the property passes with its transfer. Thus, the first thing would be to read the instrument as a whole to find the intention of the parties.30 If the transferor transfers all the interest that he possesses in the property that he possesses on that date, the entire interest that he had, will pass. For example, A transfers a land on which there are trees or a well.31 If nothing to the contrary is specified, the trees or the well32 would pass along with the land to the buyer. Where the intention of the transferor was to transfer the land within the welldefined boundaries, any erroneous statement of survey number or omission to state it would be rejected as false demonstration.33 In case of mis-description with respect to plot numbers and boundaries, the description as to boundaries would prevail to ascertain the real intention of the parties.34 Thus, where in grant of mining lease, a map was annexed to the grant, which showed an area less than what was stated in the grant, it was held that the terms of grant would prevail.35 However, where the schedule is annexed to the main document, the description of the property in the schedule cannot be given any overriding importance over actual area specified in the document as to the extent of the land determined upon measurement.36 What property is actually conveyed depends on the terms37 and agreements of the contract but if the language is plain and unambiguous, the same must be adhered to.38 For instance, the use of the words ‘Malik’ indicates an intention to confer an absolute estate,39 unless the context Page 22 of 89

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indicates a different meaning,40 or if a life interest is granted.41 In absence of reservation or exceptions, interests in zamindari conveyed through the deed would include the land, houses on it, the bazaar on the land and all the rents and profits derived from it,42 or the Sarabarakari interests subordinate to it,43 sale of grove would include the right to the land.44 Conversely, a sale of land, it would also include the interest in the mango trees45 growing on it. Use of unqualified conveyance would later deprive the transferor to claim any rights in the property.46 In the absence of actual possession, a symbolic possession can be transferred to complete the grant.47 Hindu Law Prior to the Enactment of The Hindu Succession Act, 1956 Under Hindu law as it stood prior to the enactment of The Hindu Succession Act, 1956, a Hindu woman generally took a limited interest in the property conferred on her. The Privy Council had ruled that courts could rightly presume in such cases, that the immovable property conferred on the widow in absence of a specific mention with respect to her interest in it, would be taken by her as a limited owner. It was only when the deed specifically declared that she was to be an absolute owner, that she took the property absolutely.48 Court Sales This section applies to a contract between the parties only and does not apply to court sales,49 as the title, interest, etc, in the property that is sold at a court auction is determined by what the court intended to sell, and may vary with the facts and circumstances of each case.50 Different Intention The general rule, therefore, is that whatever interest the transferor had in the property, passes to the transferee with this transfer, unless a different intention is expressed. In such cases, only that interest will pass which has been specifically mentioned. For instance, a man, A, Wills his property in favour of his father and wife, giving to each, one-fourth of his property. The wife, on the death of A, transfers this property to B stating in the deed that she is transferring to B what she had received under the Will from her husband. This Will later was held invalid by the court, and the widow in the capacity of a class I heir, of the husband inherited his total property to the exclusion of the father. Here, what she had transferred or conveyed in the property was only the one-fourth share due to the use of the words ‘her entitlement under the Will’ and not her total property that she later inherited from her husband. The construction of the document must emphasise its substance and not merely its form. Where the deed contains the words that ‘the property is given to you so that you can perform religious ceremonies and festival and provide for the poor as well for your own support’, it would indicate that what was conveyed was a limited estate,51 and not an absolute ownership over it. Easements and Rents and Profits Where the property is land, the easements annexed thereto and the land and the minerals beneath it also pass with the transfer.52 For instance, in a sale of land, the purchaser acquires Page 23 of 89

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use of water from the well53 on the land or a right of way,54 which the seller has, but the same does not include a right to use a staircase when it is not an easement of necessity.55 If the property purchased is in occupation of the tenants who were paying rent to the owner, these rents and profits accruing from the property after the transfer56 but not before it,57 also pass with the transfer. Things Attached to Earth All things attached to the earth,58 like upon a transfer of the land, all structures upon it, including the house,59 buildings,60 trees,61 including fruit trees,62 pass by necessary implication, and it is not necessary to mention them.63 However, the contrary may not be true, thus, transfer of trees will not, by itself, justify the inference that the land was also transferred.64 Things embedded in earth such as shells65 and minerals also pass with the sale of the land.66 However, in case of lease, the passing of rights with respect to minerals would depend upon the terms of the grant.67 Other Annexations Where the property is machinery attached to the earth the movable parts thereto,68 and where the property is a house the easements annexed thereto, the rent thereof accruing after the transfer and the locks, keys, bars, doors,69 windows, and all other things provided for permanent use therewith, will also pass. Debts and Securities The mortgaged debt is not an actionable claim,70 but a debt secured by charge may be assigned, and with its assignment, the charge annexed to it also passes on to the transferee.71 Auction Sales In cases of a land sold in an auction, everything attached with the said land passes to the transferee.72 Auction sale of parti land where there is no mention of any structure or house on land in the auction sale or sale certificate or dakhalnama, the purchaser cannot be said to have acquired right, title or interest or structure on land as the title of auction purchaser is derived from sale certificate and not from the dakhalnama as ‘dakhalnama is not a title deed’.73 METHODS OF TRANSFER

Section 9. Oral transfer.— Page 24 of 89

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A transfer of property may be made without writing in every case in which a writing is not expressly required by law.

ORAL TRANSFER Prior to the enactment of the TP Act, the primary condition for the transfer of property was the delivery of possession of the property. However, under the TP Act, the transfer of every tangible property, reversion or other intangible thing where its value is more than R s. 100; by mortgage (other than a mortgage by deposit of title deeds) where the principal money secured by way of loan is more than R s. 100, by gifts irrespective of the value of the property, or lease for more than a year or where rent for more than 12 months has been taken in advance, must be made in writing. Where the law requires a transfer to be made in writing, an oral transfer will not convey any right from the transferor to the transferee.74 For example, A sells his house to B for R s. 50,000 on the basis of an oral agreement, by delivery of keys of the same. B does not acquire a title as the consideration being more than R s. 100, the transfer must take place with the help of a written, attested, and registered document. Similarly, A, an old man of 80 years, gives to his friend’s son B, the keys of all the rooms in his house in which both of them were living, as the latter had looked after him when he was sick. While handing over the keys, A expressly told him to retain the possession of the same, as the owner in presence of all his relatives. This desire expressed by the owner, coupled with the delivery of keys as well as the property papers, would not make B the owner of the property, as the gift of immovable property has to be executed with a written, attested and registered document.75 Even if A, in this case, goes to the office of the relevant authorities for mutation of names and testifies the gift in presence of the officials, no right will pass from A to B with respect to this property, as the transfer has failed to meet the requirement of law. Other than these, the conveyances that are not required to be compulsorily written can be transferred orally. Thus, a transfer of property may be made without writing in every case in which writing is not required by law.76 A partition of joint family,77 a surrender of lease,78 a release by a mother of her interest in joint family property,79 a grant of land for life in discharge of a claim for maintenance,80 a contract to settle property in consideration of marriage,81 the relinquishment of a right by a joint family member82 or generally to recover a share of immovable property,83 or assignment of immovable property under a court’s decree passed on the basis of a family settlement contained in a composite deed,84 or a grant of a guzara,85 do not require writing. However, sale or exchange of tangible immovable property,86 lease for more than a year,87 or mortgages,88 except mortgage by deposit of title deeds, a gift of immovable property,89 require not only writing but registration as well.

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CONDITIONS RESTRAINING ALIENATION

Section 10. Condition restraining alienation.— Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing off his interest in the property, the condition or limitation is void except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a woman (not being Hindu, Muhammedan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

GENERAL PRINCIPLE Ownership of the property carries with it certain basic rights, such as a right to have the title to the property, a right to possess and enjoy it to the exclusion of everyone else, and a right to alienate it without being dictated to, save in accordance with a provision of law. An absolute right to dispose of the property indicates that the owner can sell it for consideration or can donate it for religious or charitable purposes he may gift it to anyone, mortgage it or put it up for lease. As aforesaid, save with the help of law, no other person can interfere with this power or right of the owner or dictate to him, what should be the manner of alienation, should he alienate or not, or even what kind of use it should be put to. In short, this right of alienation, that is one of the basic rights of the owner, cannot be unreasonably encroached upon by anyone through a private agreement. This general rule is applicable despite there being an express contract to the contrary, and prevents the transferor from controlling the power of alienation of the transferee once the interest in the property is transferred. For example, a person A, who is the owner of a house X, transfers it for consideration to B. In the transfer deed, A puts a condition that B would not sell it to anyone, but would keep the possession of the property to himself. B agrees to abide by this condition and pays consideration. After the title passes and the property vests in B, B sells it to C. A files a suit claiming possession of the property on the ground that B has committed a breach of a condition of the contract, and therefore, the sale in favour of C is void. Here, the suit of A would fail, as he was attempting to restraint B absolutely from transferring the property even when the interest has vested in B. Here, even if the transferee had expressly consented to abide by the terms of the contract, this condition being void under s. 10 of the Act, he is entitled to ignore it as if it did not exist on paper. At the same time, a contravention of this condition would not affect the validity of the original transfer through which the property was acquired by the transferee.

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Conditional Transfers Conditional transfers can be of two types, first, where the condition has to be complied with or fulfilled before a transfer could be effected and secondly, where condition is to be fulfilled after the transfer is complete. In former cases, the conditions are called conditions precedent. In fact, in such cases, it is only if the condition is fulfilled that the transfer would take place, and if it is a condition that is either opposed to public policy or is unlawful or immoral, the transfers subject to such conditions would also become void. If the condition is such which is impossible to perform, then again this conditional transfer would be void. If the prospective transferee fails to fulfill this condition upon which the transfer depends the transfer cannot take place. In other words, if the prospective transferee ignores the condition, no transfer would take place. For instance, A agrees to transfer his house to B, on the condition that B must marry his daughter D, within two years. D dies within a month of this agreement without marrying B. The condition becomes impossible to perform, and the transfer would not take place. If the condition precedent is void under law, the transfer dependent on the fulfillment of this void condition would in itself be void. For instance, A transfers property to B subject to a condition that B must murder C. This condition is void and the transfer would also be void. The other category of conditional transfers is where the condition is subsequent to the transfer. The time for compliance with this condition is after the transfer takes place and the property or an interest in the property vests in the transferee. Section 10 speaks about a condition that is subsequent to the vesting of the interest in the transferor. Here, if the transfer is subject to a condition that prevents the transferee from disposing of or parting with his interest in the property that vested in him through this transfer, the condition would be void, but the transfer would remain perfectly valid. This means that even if the condition is incorporated with mutual agreement, the fulfillment of it is not binding on the transferee. He can ignore it, and the original transferor would be without any remedy. He cannot sue for cancellation of the transfer or for claiming damages for breach of contract. For example, a person A, settled property on his wife W and provided in the settlement deed that W would have no power to sell the property without his consent. W took the property and sold it without his consent. A would have no remedy and the sale effected by W would be perfectly valid. The condition incorporated in the deed, namely that W had to obtain her husband’s consent for selling the property, was in the nature of a restraint on her power to alienate the property as an owner, and is therefore void. This condition could legally be ignored by W. The underlying principles behind this rule are that of equity, justice and good conscience, that prevent the transferors from incorporating conditions in the transfer deeds that are repugnant to the nature of interest that is created. Power of alienation is one of the basic rights of the owner and an attempt to encroach upon this right or to control it even after the property has been vested in the transferee, is statutorily prohibited. Repugnant Conditions

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Conditions repugnant to the estate previously given are void,90 and for this reason the courts have always leaned against a restraint on alienation.92 According to s. 10, therefore, a condition incorporated in the transfer deed which absolutely restraints the transferee from transferring his interest in the property, is void. Absolute and Partial Restraint on Alienation Restraint means preventing or stopping or disabling a person from doing something. Absolute restraint, therefore, refers to a condition that attempts to takes away either totally or substantially this power of alienation.93 The use of the term ‘absolutely’ also suggests, that where the restriction is partial, or little, it will be permitted. This means that some or little control over the power of alienation, of the present owner by the previous owner is allowed. This control is in the shape of imposition of ‘partial restraint’. The logic is that ordinarily in a contract, when two people agree to abide by some conditions and incorporate them in the contract, such conditions are binding on them. These conditions may be in the nature of restraints, but unless they extend to being an absolute deprival of the basic incident of ownership at the behest of parties and not by law, they will be binding on the parties, and a violation of the same would amount to a breach of the contract, and would result in the consequences, also agreed upon by the parties. Thus, what has to be seen is the nature of restraint imposed in the contract. If it takes away the power of alienation of the transferee absolutely, it is void, as it will attract the provisions of s. 10 and the transferee, if he so wishes, can ignore this condition without being guilty of committing a breach of contract. However, if the condition does not take away the power of alienation absolutely, but restricts it partially, it would be binding on the transferee and he cannot avoid it. If he does, he would be guilty of committing a breach of a condition of the contract. Whether a restriction would or would not amount to an absolute restraint would depend on the substance and effect of the condition, and not merely on the terminology used in the contract. For example, A transfers a field to B, and incorporates a condition in the transfer deed, that B can sell it to anyone, but will have to pay 90 percent of the consideration to A’s son. The terminology used does not indicate an attempt to curtail the power of sale, but the practical effect would be that B would be substantially deprived of the power to transfer it according to terms that are beneficial to him. This condition therefore would be repugnant to his power of alienation, and is therefore, void.94 Similarly, A settles some property absolutely in favour of B. B starts paying revenue to the government after the patta was transferred in his name. A condition in the Will that B is prohibited from alienating the property would be void and B would be empowered to ignore the condition and sell the property to whomsoever he likes. 1 Categorisation of Restraints Since alienation of property is the sole prerogative of the owner of the property, he is empowered to sell it at any point of time, for any consideration, to any person, and for any purpose. There are certain integral components of the very term “alienation” and include selection purely at the discretion of the transferor or the transferee and the time or the Page 28 of 89

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consideration for the transfer. A restraint on alienation, thus would include a condition that dictates to him when to sell it, to sell at how much consideration, or how to utilise the consideration; to whom to sell or for what purpose he should sell. Therefore, restraints on alienations can appear in the following ways: (i) restraints on transfer for a particular time; (ii) restraints directing control over consideration/money; (iii)restraints with respect to persons/transferee; and (iv)restraints with respect to sale for particular purposes or use of property. Restraints with Respect to Money Where the transferor stipulates that the property can be sold by the transferee only at a fixed price specified by him before hand, or where he directs that the property should be transferred for no consideration, or at market price only, or at any consideration deemed appropriate by the owner, but out of sale proceeds, either something has to be paid to a specific person or persons, or for a specific purpose, all these conditions would be restraints on alienation through control over money and would be void. The previous owner/holder of the interest cannot dictate such conditions. These conditions would amount to an absolute restraint on the transferee’s power of alienation and would be void. For example: (i) A sells a house to B for R s. 10,000 with a condition, that if in future B wants to sell it, he would sell it only for R s. 10,000. This condition would be void, and B may sell it for any consideration. (ii) A sells a house to B for R s. 10,000 with a condition, that if in future B wants to sell it, he would sell it at only market price. This condition would be void and B can sell it either below or higher than the market price. (iii)A sells a house to B for R s. 10,000 with a condition, that if in future B wants to sell it, 50 percent of the consideration, should be given to charity, or should be given to the transferor’s sister or any other relative. This condition is void. B may sell it to anyone and keep the entire consideration. Restraints for a Particular Time Restrictions with respect to time, i.e., the condition that the transferee would not sell it for five years or ten years or for any time period whatsoever would be void, unless it is for a short time period and is coupled with a benefit to the transferor, such as an option of re-purchase, at a consideration stipulated in the contract. This option of repurchase is personal to the transferor and cannot extend to anybody else. For example, A sells his house to B for five lakh rupees, with a condition that B should not sell it for five years. Within this period of five years, A would arrange the money and would have Page 29 of 89

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an option to repurchase it for 6 lakh rupees. If he is unable to exercise this option of repurchase within five years, B would be at liberty to sell it to anyone. This condition is with respect to both the time as well as a person, but would be valid as it is in the nature of a partial restraint and is for the personal benefit of the transferor,1 but if in accordance with the condition the direction is simply that B should not sell the property for five years without any right of pre-emption or during the lifetime of A, or that of his wife, such conditions would be void. Restrictions with Respect to Persons Restrictions directing the owner that the property or an interest in the property should be transferred only after obtaining the prior permission or consent of specific persons would be totally void but a condition that it can be transferred to specific persons can be either partial or absolute, depending upon the facts and circumstances of the case. Where the transferor puts a condition directing the transferee that should he want to sell the property, he must sell only to a specific person named by the transferor in the deed or to a group of persons, such a condition would be void. But if the condition is that he should not sell it outside his family or even community, then it will be valid as partial restraint, provided both transferor and transferee are members of the same family or community. Such a condition may stem from a desire to conserve the property within a specific family or community, of which both the parties are members. Therefore, the transferor himself selling the property to an outsider, cannot put a condition that binds the later to sell the property only to members of the transferor’s family.2 Restraints with Respect to Purposes or Use of Property Where the transferor does not apparently say anything with respect to the power of the sale of property of the transferee, but provides clearly that the property can be transferred only for a specific purpose, this would also be an absolute restraint on the power of the transferee to transfer his interest according to his option and his convenience. To whom and for what purpose he should sell, is for him to decide and he is entitled to ignore the condition if at all it is put in the contract at the behest of the transferor. Therefore, conditions that the property should be sold for a religious purpose,3 or for any other specific purpose only would be void as being repugnant to the right of alienation. A provision in the sale deed that in the event of failure to construct a private college in the property sold thereunder, the property should be reconveyed by the transferee to the transferor for the same sale consideration would amount to an absolute restraint on alienation.4 Section 10 not to Apply to Court Sales Section 10 applies only to transfers made by the act of the parties and does not apply to a sale under The Companies Act, 1956, nor to transfers by operation of law taking effect in invitum at a sale in execution of a decree.5 Similarly, s. 10, does not apply to partition and family

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arrangements, but restraints clearly offending the rule are void.6 Partition and Restraints on Alienation Partition of a joint family property or family settlements do not amount to transfer of property, and as stated above, s. 10 of the TP Act would not be applicable to partition or family settlement. However, any total restraint on right of alienation is void. This rule is based on sound public policy of free circulation of property. The principle has universal application and there is nothing in the Hindu law which is inconsistent with it.7 Therefore, if in a partition a condition is imposed preventing a party from alienating his share, such condition would be void, e.g., four brothers A, B, C and D, effected a partition of the joint family property and incorporated a condition in the partition deed, that if anyone of them remained childless he would not sell his share to anyone but would leave the property for the surviving brothers. A, who was childless, sold his share and then died. The surviving brothers filed a suit against the alienee on the ground, that as A was prohibited from selling his share in case he was issueless, this being a condition to which he had agreed, a sale in contravention of this condition was void and not binding on them. They pleaded that the alienee should deliver the possession of the property back to them. The court held, that as this condition amounted to an absolute restraint on A’s power of alienation it was void and was not binding on him. The sale in favour of the alienee was perfectly valid.8 The creation of the absolute ownership in each one of the sharers in the properties allotted to him in the partition is a legal incident of partition. Thus, where it was provided in the partition deed that after the death of the owner of the properties, his three sons would get the properties and divide it among themselves, it would mean that they take their respective shares with full incidents of ownership including a right to alienate it. It does not mean that a limited estate was created in favour of the owner.9 In Muthuraman Chettiar v. Ponnusami,10 in a partition by a separate agreement, it was stipulated that if any one of the parties to the agreement or the heir remained childless, he should not sell or transfer his share by a gift but the same should, on his death be divided among the rest of the shareholders. The Madras High Court held that the obvious purpose of these stipulations were to frustrate indefinitely the right of the alienation which was the legal incident of an absolute estate, in severally created by the partition in effect to convert the estate in the case of each son-less or issue less possessor into a mere life enjoyment and would be against the law. This stipulation was struck down as void. Similarly, life tenancy coterminus with extinction of the business is void and inequitable.11 The entire transaction would not be vitiated only because some clauses in the deed are repugnant to the free transfer and circulation of the property.12 Partial restraints on power of alienation, even in a partition, are valid. Thus, where the parents got the property under a partition with a stipulation to enjoy it during their lifetime and sold it to the respondent, it was held that the sale was valid despite the clause that they had no absolute right of alienation.13

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Family Arrangements and Restraint on Alienation Even though no transfer of right is contemplated in case of partition or family settlement, and s. 10 of the TP Act does not apply,14 yet any total restraint on right of alienation is void.15 A condition imposing a partial restraint is not void.16 Whether the restraint is absolute or partial has to be gathered from the intention of the transferor and from the contents of the document.17 Thus, where the property was given by father to the son under a family arrangement with a condition that with respect of a portion of it, the son was prohibited from making any alienation during the life time of the father, it was held to be not an absolute restraint and therefore was valid and binding on the son.18 Similarly, where in case of a compromise in a family arrangement, the widow was given the property with a condition that she would not alienate the property outside the family it was held that the restraint was only partial and such a partial restraint was neither repugnant to law nor to justice, equity and good conscience.19 A family settlement between the reversionary heirs and two Hindu widows by which the reversioners are restrained from alienating during the lifetime of the widows is valid.20 Likewise, in a compromise between the reversioners and the widow, the widow taking a limited interest without power of alienation, would be valid.21 Thus, where in a dispute a compromise was arrived at between the widow and her adopted son whereby she was allotted certain properties for her maintenance but without power of alienation, it was held that the compromise was valid.22 Instances of Restrictions on Alienation under English Law An absolute interest in personality no less than in reality, once given, cannot be fettered by a gift over on alienation,23 for the right of alienation is incidental to the beneficial ownership of property.24 Accordingly, any restriction which substantially takes away the power of alienation, is void as being repugnant to the very conception of ownership. A partial restraint which does not deprive the owner of his power of alienation, is valid.25 Thus, a condition that the donee is not to alienate a reversionary interest before it falls into possession,26 or is not to alienate to a particular person or class of persons,27 may be valid. A gift over on alienation affecting a life interest with a power of disposition by will or deed is invalid as the gift is equivalent to absolute ownership.28 Similarly, if an annuity is to be bought in the name of an annuitant, a direction that it is to cease on alienation is inconsistent with the absolute ownership previously conferred, and the annuitant is entitled to demand payment of the sum required to purchase that annuity.29 The rule preventing the fettering of absolute interests applies equally to equitable and to legal interests.30 Trusts, therefore, cannot be created with a proviso preventing the beneficiary from alienating his interest,31 or with a proviso that that interest is not to be made subject to the claims of creditors.32 Instances of Absolute Restraints under Indian Law A co-sharer is not bound by an agreement not to sell his share without the consent of the settlor,33 or of other co-sharers,34 or in the event of not getting an issue,35 or to sell it only for religious purposes,36 or only to testator’s wife at one-fifth the value of the estate,37 or to pay Page 32 of 89

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specific sums to the settlor’s brother and sister in the event of sale.38 An unregistered agreement following a registered sale not to alienate, dissipate or fritter away the land would be void.39 A condition not to sell during the lifetime of the transferee is void.40 Where a deed of gift provided that the donee or his successors would have no right to transfer the property and that if they did transfer, the same would be invalid and the donor or his successors would have a right to revoke the gift the condition; is invalid.41 A restraint on mode of alienation is not a restraint.42 A condition in the gift to Brahmins restrictive of alienations is invalid.43 Partial restraints According to s. 10, it is only an absolute restraint on alienation that is void, and restraints short of an absolute curtailment of the power of the interest holder to transfer his interest, will be valid and binding on him.44 Whether a condition totally or partially prohibits alienation depends on the substance or the effect of the condition and not the form. Instances of partial restraints A condition to sell only to specific persons45 is void, but a condition not to sell outside the family would be a partial restraint.46 Similarly, a condition that if any coparcener wanted to sell his share the other coparceners would have a right to buy it, is valid.47 A condition imposed in the byelaws that the property cannot be sold to a non-Parsi is valid.48 Similarly, a condition in the kharposh grant made by a zamindar in favour of a junior member that the subject matter of the grant was not liable to be attached and sold in execution, is only a partial restraint, and valid.49 A clause in the lease deed that the interests of the leaseholder cannot be transferred without the written permission of the deputy commissioner is not an absolute restraint on transfer.50 Agreement in Restraint of Alienations A separate unregistered agreement by way of a personal covenant not to sell, or to sell subject to the conditions imposed is valid,51 but a registered agreement in restraint of alienation would be considered part of the sale agreement and would be void.52 Where the donor makes a gift to the donee with a condition that the donor would be at liberty to revoke the gift if the donee transferred the property without his consent, it was held that the condition is valid.53 Exceptions to the Rule of Restraint on Alienation There are two exceptions to the general rule that absolute restraint on power of the holder to dispose of or transfer his interest in the property is void. The first exception is in the case of a lease where the condition is for the benefit of the lessor or those claiming under him, and the Page 33 of 89

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second is where property is transferred for the benefit of a married woman (not being Hindu, Mohammedan or Buddhist) so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.54 (1) Lease and Restraint on Alienation A condition in the lease that the lessee shall not sublet or assign his interest to anyone during the tenure of the lease is valid.55 Similarly, a stipulation in the contract of lease that the lessee would not sublet the premises and if he does, he would have to pay a fourth of the consideration as nazar to the lessor,56 is valid and enforceable. A condition in the lease deed that the lessee would compulsorily have to surrender the lease in the event the lessor needs to sell the property57 is again valid. A condition in the perpetual lease that the lease, though heritable, is not assignable is also valid.58 A condition can be stipulated in the rent-free grant restraining the grantee from transferring his right.59 Similarly, a condition in the darpatni lease that if the darpatni is sold for arrears of rent, derivative tenures created by the darpatnidar would be extinguished is valid and would not amount to a restraint on alienation.60 An alienation of the leasehold of the Khasmahal land without the permission of the collector would be void as the rights in the same are heritable.61 (2) Married Women and Restraint on Alienation The second exception provided under s. 10 relates to a non-Hindu, Mohammedan or Buddhist married women. The section provides that property may be either transferred to or for the benefit of such a woman, with a condition that she would not have power during her marriage to transfer or even charge the same or her beneficial interest therein. Thus, two conditions must be satisfied: (i) first, that the woman should be married. If she is a widow or unmarried, no restraint can be imposed on her power of alienation, and (ii) secondly, she should not be a Hindu, Mohammedan or Buddhist. The restriction can therefore be applied to a woman who is a Christian, Parsi or a Jew. Under English common law, a woman’s property, on marriage, automatically became the property of her husband. This rule was expressly abolished in India under s. Section 4 of The Indian Succession Act, 1865, but only where the marriage was solemnised after 1 January 1866. At the same time, a married woman (irrespective of her religion) could be prevented from alienating the property settled on her, under two distinct rules— s. 10 of the TP Act, and s s. 56 and 58 of The Indian Trusts Act, 1882. Such interests in property that the woman is prevented from alienating herself, cannot be the subject of involuntary sales as well. This means that if a creditor obtains a decree against a married woman, it can be executed against her general separate property, but not against her property that she herself is prevented from alienating.

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Limitation Until Attempted Alienation Although provisions in restraint of alienation, or excluding creditor’s rights, are invalid when applied to an absolute interest, yet at the same time there is nothing to prevent property from being settled for life estates determinable on alienation, bankruptcy or insolvency, with a limitation over upon the happening of any of those events.62 This may be effected by merely directing that the income of the property be held on protective trusts for the benefit of any person for the period of his life or for any less period. The owner of property cannot, however, qualify his own interest in it by a condition determining that interest on his bankruptcy.63 Important Cases In Rosher v. Rosher,64 a person A died leaving behind his wife W and a son S. He left his entire property to S, under his Will. The Will also provided, that if S wanted to sell the property, or if any of his heirs wanted to do so, they must offer it to W first and she would have an option to purchase it at one-fifth of the value of the same, as it was assessed at the time of the testator’s death. The price was specified as 3000 while the value of the house (Manor) at the time of the operation of the Will was 15000. The Will further provided that if the son or any of his heirs wanted to let this manor on rent, they could do so freely only for a period of three years. If the tenancy exceeded the three years time period, W would have the option to occupy the premises, for the period in excess of three years, at a fixed rent. The rent was fixed as 25 for the whole year. If the tenancy exceeded a period of seven years, again W was entitled to occupy the same for an annual rent of 35. The son or his heirs were under an obligation therefore to offer the premises to W first, and only when she declined to take it, could they let it out to other persons. Upon W bringing an action against S, the question before the court was; what was the nature of the conditions incorporated under the Will; and whether it constituted an absolute or partial restraint on the power of alienation of this property by the son or his heirs. The character of restraint was, first, with respect to persons, i.e., the testator’s wife. If S wanted to sell the property, he had to first offer it to W, a person specifically named under the Will. The second type of restraint was with respect to money or price, as it was provided in the Will, that W could purchase the property at a specific price, i.e., 3000, irrespective of whatever might have been its market value. The beneficiaries, under the Will, were not free to even give it on lease, as a lease for above the time period of three years, could again entitle W to take the property at a very small rent, at her option. The court held that these restrictions amounted to an absolute restraint on S’s and his heir’s power of alienation and were therefore void. They were entitled to ignore them, as if these conditions did not exist on paper, and could sell it or let it out to anyone for any time period, without any cause of action arising in favour of W. The court said, ‘to compel the son, if he chose to sell, at one fifth of the value of the estate, is really a prohibition of alienation during the widow’s life time’. In Gayashi Ram v. Shahabuddin,65 the sale deed contained a clause that the transferee would not transfer the property to any person either by way of sale, gift or even mortgage except the transferor or his heirs. It further provided that if the transferee violated this condition, they Page 35 of 89

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would have a right to take back the property by paying Rs. 175 instead of R s. 150, that was the price paid originally. While holding that these conditions amounted to an absolute restraint over the owner’s power of alienation and were therefore void, the court observed: in order to see whether there is absolute restraint or not, one has to examine the effect of all the conditions and find whether for all practical purposes alienation is prohibited. The mere fact that there may be some remote contingency in which there may be a possibility of an alienation taking place would not necessarily take the case out of the prohibition contained in s. 10.

In Manohar Shivram Swami v. Mahadeo Guruling Swami,66A and B were first cousins, (sons of two brothers). A made a Will of his property in favour of B. On A’s death, B acquired the title to the property and sold it to C, who was also the brother of A. However, the sale deed contained a condition that if C wanted to sell the property, he would sell it only to the seller’s Jangam family and not to anybody else. The parties were Jangam by caste. The deed further stated that the property was sold on this condition. C sold the property to D, ignoring the condition incorporated in the sale deed. B took back the possession of the property, on the ground that as C had committed a breach of the condition, the transfer became void. He also filed a suit against C, D and others seeking a perpetual injunction restraining them from interfering with his possession of the property. His main contention was that by selling the property to D, C had committed a breach of covenant that was included in the contract of sale. C took the defence that this condition violated s. 10, and therefore was not binding on him. The trial court rejected this defence, and held that the sale deed executed by C was void and not binding on B, and directed that property be restored to B. In appeal, the district court differed with the view of the trial court and held that as the restriction incorporated in the transfer deed was repugnant to s. 10 it was void, and C was entitled to validly ignore it, without affecting the validity of the transfer. The court therefore upheld the validity of the sale. The matter went in appeal to the High Court. The issue before the court was; whether the condition put in the sale deed, that C would not sell the property, except to a person in the Jangam family, was hit by s. 10. Did it restrain C absolutely from alienating the property or was it only a partial restraint? If it is an absolute restraint, the condition would be void, and C could ignore it. But if it were only a partial restraint, then it would be binding on C and if he commits a breach of this condition and sells the property, the sale would be void. The court held that the condition incorporated in the sale deed, absolutely restrained C, from parting with his interest in the property and therefore was void. The court thus upheld the validity of the sale affected by B. This decision of the Bombay High Court comes as a surprise as the condition here in fact was not to sell out of the family, which in a number of cases, it has been held to be a partial restraint, and binding on the parties. In Zoroastrian Co-operative Housing Society Ltd. v. District Registrar Co-operative Societies,67 a society was registered under the Bombay Co-operative Societies Act, with the object of constructing houses for residential purposes, and according to the byelaws, the membership was restricted only to Parsis. The byelaws also contained a condition that no member could alienate the house to non-Parsis. The High Court of Bombay stated that a restriction based on religion, race or caste contained in a byelaw on the member’s right in a co-operative housing society to transfer his membership coupled with his right to alienate his Page 36 of 89

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interest in the immovable property would be bad in the eyes of law. Restriction on the member’s right to transfer membership and/or his interest in the property, to a non-Parsi was held violative of s. 10, and is therefore void. The matter went to the Supreme Court in appeal. The Apex Court allowed the appeal and held that when a person accepts the membership of a co-operative society by submitting himself to its byelaws and places on himself a qualified restriction on his right to transfer property by stipulating that same would be transferred with prior consent of society to a person qualified to be a member of the society, it could not be held to be an absolute restraint on alienation offending s. 10 of the TP Act. Hence, it set aside the finding of the High Court that the restriction placed on rights of members of a society not to sell the property allotted, to non Parsis was an absolute restraint on alienation as unsustainable. The Supreme Court held that this clause in the byelaws that a person could sell it only to Parsis and not to a non-Parsi was a partial restraint and not an absolute one. In K. Muniswamy v. K. Venkataswamy,68 a family consisted of father F, mother M and two sons S1 and S2. Pursuant to a partition, the joint family properties were divided, with one half of them taken by M and F, and one-fourth each to S1 and S2. The partition deed incorporated a condition that each of these persons were to enjoy the property according to their wishes in any manner they liked and were specifically adjoined to effect mutation of name, so that taxes could be paid by the respective parties. The properties were ancestral as well as self-acquired. However, one condition in the partition deed provided that the mother and the father were to enjoy the properties only during their lifetime and after their deaths, this property was to be partitioned equally between S1 and S2. No similar condition was appended to the shares of S1 and S2. This creation of life interest meant that the parents had no power to alienate the property during their lifetime. The parents after partition took possession of the property and then later sold it through a registered sale deed to S1. S2 challenged the validity of the sale on the ground that since the parents had no power of alienation, the sale affected by them was invalid. He also claimed a half share in the property, as per the terms of the partition deed. The court here first explored the nature of estate that vested in the parents. They observed that the character of the estate, whether limited or absolute, did not depend purely on the terms or expressions used to describe it, but has to be taken in totality, looking at the substance, and the intention of the parties. This has to be gathered by looking to the entire document as a whole. Here, the court concluded, that the use of the expressions, ‘each of them should get their khatka of the property in their names; should enjoy the properties in the manner they like’, shows clearly, that what was granted to them was an absolute estate and not a limited interest in the property. In such an event, the court held that a restriction, prohibiting them absolutely from transferring the property, amounted to an absolute restraint on alienation and was therefore, bad in the eyes of law. This shows that had it been a creation of a limited estate in the first place, only then could this condition have been operative. A similar question, i.e., whether a life interest be created by a deed of conveyance, or of transfer of property by sale, if the property is transferred absolutely, also arose in Manjusha Debi v. Sunil Chandra.69 A life interest can be created by gift, Will, partition or even family arrangements, but life interests created by sale or conveyance, are impossible to conceive. Such attempted life interests in a deed of sale would be covered under s. 10 of the Act. However, a transferee is capable and competent to impose upon himself a restriction on his Page 37 of 89

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own proprietary rights. This can be done by executing a proper deed himself and no one else can by a collateral agreement annex a condition to an absolute grant. In this case, a Hindu father made a gift of Rs. 30,000 to his widowed daughter D. D, with this money, purchased a property X. A clause in the sale deed stated that: tenements or dwelling houses, land, hereditaments and premises hereby granted are free from all encumbrances for use of said purchaser, Sreemati Kailashidevi (D) to be held by her for the term of her natural life as the estate of a Hindu widow, and from and after her death to her three sons to be held by them as tenants in common, without power of alienation and after their death, unto, and to the use of their respective heirs absolutely and forever.

D, on purchasing the property, held it as the owner, and then executed a Will of the same dedicating the entire property to the deity ‘Shree Durgajee’. By this Will itself, she appointed her daughter DD as the shebait of the temple. The Will further provided that on the death of DD, her daughter DDD (granddaughter of D) would become the shebait. Another property, acquired through the same purchase, was dedicated to another God Baraha Kalijee and her son’s son (SS) was appointed the shebait. On D’s death, DDD, applied for letters of administration of the estate left by D, on the basis of the Will. Three days, later two sons of D filed a partition suit claiming one-third share each, on the ground that the estate purchased by D was a life estate, and on her death came to the three sons in equal shares. They contended that as it was only a life estate, she had no power to alienate the same, and a Will executed by a life holder, cannot be given effect to. On the other hand, DDD, contended that since D acquired the property through a purchase, and not through a gift, Will, partition or family arrangement or even a compromise, the creation of a limited estate in a conveyance executed by the previous owner (transferor) was in the nature of an absolute restraint over the transferee’s power of alienation and is therefore void as repugnant to s. 10 of the TP Act. The transferor, according to her, was not competent to abridge the interest of the transferee through the conveyance deed. The court held that a purchaser cannot limit her own interest in a conveyance executed by her vendor. She can do so by executing a deed by herself. They observed: when a property is transferred absolutely it must be transferred with all its legal incidents. The vendor is not competent to sever from the rights of property, incidents which the law inseparably annexes to it, and thereby to abrogate the law by private arrangements creating a life estate in favour of the vendee in a deed of conveyance. A sale, is a transfer of ownership of property. By a transfer a transferor divests himself of his interest in the property to the transferee. Thereafter he has got no right to create a life estate in favour of the transferee. If at all a life estate is to be created, it can be done by the transferee herself/himself, as the owner. If any condition or limitation is imposed in the deed of conveyance by the seller, that will be repugnant to section 10, of the Transfer of Property Act.

The court accordingly held that the conditions creating life interest in the sale deed were void, and could be legally ignored by the transferee (D). As an absolute owner of the property, she could validly execute a Will of the same. The court declared DDD as the shebait in terms of the Will of D. The court also said that in case of a life interest, s. 10 has no application, because life interest does not create a transferable interest in favour of the life holders. Conditional Gifts Page 38 of 89

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What is specifically prohibited under the Act is any attempt to restraint a transferable interest from alienation. Conditions or limitations can be put on the interests of a transferee in case, of gifts or Wills. Thus, a condition can be imposed in a gift to the effect, that the donee would maintain either the donor or a relation of his. These kinds of gifts are called conditional gifts and are binding on the donee. If he accepts the deed of gift, it is accepted with the benefits and also with the liabilities that can be sustained in law. It is not open to the donee to accept the benefits and refuse to accept the liabilities under it. Gift being a gratuitous transfer, the donor is empowered to transfer property with obligations on the donee, that he has to fulfill. In Panna Lal Hazra v. Fulmoni Hazra,70 a Hindu father made a gift of his property to his son, which the latter accepted. Under the gift deed, the son was expressly enjoined to maintain his stepmother. Upon his refusal to do so, after the properties were transferred in his name, the stepmother brought a suit claiming maintenance from him both under Hindu Adoption and Maintenance Act, 1956, and also under the terms of the gift deed. The stepson denied his liability to maintain her, on the ground that he had obtained the property through a transfer that created an absolute interest in his favour. This condition that he is under an obligation to maintain his stepmother, was in the nature of a limitation or condition, which was repugnant to the interest created in the gift and therefore void. He contended that since this condition was hit by s s. 10 and 11, he was entitled to ignore it, without effecting the validity of the transfer by way of gift. The concurrent findings of all the courts, the trial court, the district court and the High Court of Calcutta were that under the express terms of the deed of gift, whereby properties were conveyed to the son by the deceased father, the son was obliged to maintain the stepmother. According to the court, this condition in the instrument to provide maintenance to the donor himself and/or to any of his dependants was not in any way repugnant to the interest created by the instrument. This was a valid and enforceable condition and therefore, the son was bound to maintain his stepmother. This condition was thus not hit by either s s. 10 or 11. RESTRICTIONS REPUGNANT TO THE INTEREST CREATED

Section 11. Restriction repugnant to interest created.— Where, on a transfer of property an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such

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direction or any remedy which he may have in respect of a breach thereof.

GENERAL PRINCIPLE Once the property is transferred absolutely, the owner acquires certain basic rights in the property. A right to possess and enjoy the property is an inherent right of the owner, one that is inseparable from the incidents of ownership. Therefore, save with the help of law, no private agreement between the previous owner and the present owner can be enforced, whereby the former can dictate to the current owner, how he should use the property. If he does, the owner is entitled to ignore it and use it in a manner consistent with his wishes and convenience, without being liable for breach of contract. The right to possess and enjoy the property, therefore, cannot be unreasonably encroached upon by a person, who is already divested of all the rights over it, by transferring the same to the transferee. For instance: (i) A sells B a piece of land and with a condition that B will not build upon it. B takes the land, and attempts to build a house on it. A cannot prevent him from doing so, as B, as the owner has the right to enjoy it in any manner that he likes, subject to the rights of others and also the provisions of law. Here, B can rightfully ignore this condition, without affecting the validity of the transfer. (ii) A transfers his house to B with the condition that B would not demolish it. After purchasing the property B may retain or demolish it, and A cannot stop him from doing so. (iii)A sells a field to B with the condition that B must grow vegetables/crops on it. After the transfer has been effected, B may put it to any use he wants. Absolute Interest Absolute interest indicates that the transferor, vested through a specific conveyance, all the rights that he had in the property in favour of the transferee, without retaining any right in his own favour such as, a transfer by way of sale, exchange or an unconditional gift. Section 11 therefore, does not apply to those transfers, through which, the transferor conveys, one or some rights in the property to the transferee, while retaining some rights in his own favour, such as a lease or a mortgage. In the case of a lease, what the transferor conveys is only a right to possess and enjoy the property in favour of the transferee but retains the title, and the right to sell the property to himself. Similarly, in a simple mortgage, the transferor transfers a right to cause the property to be sold in the event, he is unable to repay the loan to the mortgagee, but retains the other rights in the property to himself. Section 11, therefore, does not apply to a lease and a mortgage. For example, A executes a lease of his house to B, with a condition that he would live in it, and would not use it for commercial purposes. B takes the house, and opens a shop in the premises. Page 40 of 89

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A can, depending upon the terms stipulated in the lease deed, for its violation, sue B for violation of the lease deed and stop him from using the same for commercial purposes. On the other hand, if instead of a lease, A had executed a sale deed in favour of B, and had incorporated a condition in the sale deed that B would live in this house, and not use it for any other purpose, then B can ignore this condition and use it either for residential purposes or for any other purpose that suits him. Similarly, A is the owner of a house, which is occupied by two tenants, T 1 and T 2. He sells it to B, under the condition that B would not collect rent from the tenants, or evict them, or partition the property or that out of the rent, he would pay a specific sum to A. None of these conditions will be binding on B, as they would be repugnant to the interest that is created in his favour by this absolute transfer. Where B has been conferred an absolute interest in the property, he alone is competent to decide what to do with his property. The instrument of transfer should evidence that an absolute interest in favour of transferee has been created.71 Thus, this provision is not applicable in case of a usufruct,72 or where the land is given for use and cultivation only73 or where the grant is made for life,74 or where the vendor reserves the subordinate interest to himself.75 Thus, where in a contract of sale by one co-sharer to another with an agreement that the vendee will not be entitled to collect the rent or demand partition, or encumber the land or alienate it, it was held that the agreement was void.76 Distinction Between Section 10 and Section 11 (1) The primary difference between s. 10 and s. 11 is that under s. 10, it can be a transfer of either all the rights in the property or even only some rights. It is a conveyance of a transferable interest in the property that can be an absolute or even a partial transfer, but s. 11 applies only to those cases where there is an absolute transfer, such as by way of sale or gift. No right in the property is retained by the transferor in the property, as the same is transferred absolutely to the transferee. (2) The second distinguishing feature is that s. 10 relates to the power of the owner to alienate the property, and makes total restraints on it void, while s. 11 protects the power of the owner to enjoy the property in any manner whatsoever, without there being any dictation from anyone. Section 11, like s. 10, seeks to restraint the previous holder/owner of the property to unduly interfere with the rights of the owner of the property, once the property has passed to him along with all the rights. Illustration of Restrictions Repugnant to the Interest As the transferor is neither competent to dictate the manner of enjoyment of the property in the hands of the transferee nor can control it, thus after selling the property, he absolutely cannot provide that after the death of the transferor, a specific person will become the owner. Page 41 of 89

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For example, A sells the property to B, and also provides that when B dies C would become the owner of the property. Such a condition is void, and the ownership of the property after B’s death would be decided in accordance with B’s Will, or in absence of any Will, by the relevant laws of inheritance that B would be subject to at the time of his death. Thus, no life interest can be created in favour of a vendee in a contract of sale.77 A gift restraining enjoyment is void.78 Payment of certain amount to the vendor out of the profits of property by way of rent after sale is illegal.79 A direction in restraint of partition in a gift80 or a Will81 is void even though the restriction is limited in time to the sons attaining majority.82 An agreement not to seek partition may be binding on the immediate parties83 though not for an indefinite time,84 and does not bind the successors at all.85 However, a stipulation in the gift deed that properties are transferred on condition that the donee would maintain the dependants of the donor is valid.86 Exception for the Enjoyment of Another Property of the Transferor An exception has been carved out for the benefit of the transferor in a specific situation in the Act itself. Despite conveying an absolute interest, the transferor is competent to not only impose, but also enforce a condition directing the transferee/present owner, to enjoy his interest or transfer in a specific manner if the same is necessary, for the enjoyment of another property of the transferor, that is retained by him. Section 11 provides87 Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. For instance, A owns a house, X, and the land Y, adjoining X. He sells this Y to B, with a condition that B would leave a vacant space of six feet adjoining X, whenever he builds over Y, so that the air and light of his house X is not obstructed. Here the condition that is imposed on B would help A to enjoy his property and if B tries to violate it, A can prevent him from doing so. B, therefore cannot ignore this condition. Similarly, A is the owner of a big plot of land, adjoining the road. He constructs a house on half of the plot, and the other half, that is adjoining the road, is left open. On this plot he makes a four feet wide path to reach the road. He uses this path to access the road. A, later sells this vacant plot of land to B with the condition that B would not build on this path and will also not prevent A from accessing the road through this path. This condition is incorporated in the sale deed. B would be legally bound to follow this condition. He can neither build on this path nor obstruct A from using it. These conditions that the transferor imposes as part of the contract of transfer on the transferee can be imposed by him only when the imposition is necessary for the enjoyment of his own property. It means, that in order the exception can apply, to begin with:

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(i) the transferor should be the owner of both, i.e., the property that he professes to sell to the transferee as well as the one for whose beneficial enjoyment he is seeking to impose the direction for specific enjoyment. (ii) Secondly, the conditions can be imposed on the transferee only when it enables him and his family members to seek the enjoyment of his own property, and not of somebody else. He cannot impose conditions on the transferee, directing him to enjoy his property in a specific manner so as to benefit third parties. Positive and Negative Conditions or Covenants Conditions or directions that the transferor may impose upon the transferee to secure better enjoyment of his own property can be of two types: positive or affirmative conditions, i.e., they direct the transferor to do something and negative conditions, i.e., they restrain the transferee from doing a particular thing. These conditions are also called covenants. For example, A transfers a land to B, and puts a condition, that he would leave open a four feet wide space adjoining A’s own land, and would not built upon it. On this land there is also a one-foot open drain, and the second condition in the transfer deed directs the transferee to maintain this drain by carrying necessary repairs from time to time. The first covenant, that requires the transferee not to build upon four feet wide land, is a negative covenant as it is in nature of ‘not to do a particular thing’, while the second condition or covenant is a positive covenant, as it requires the transferee to ‘do a particular thing’, i.e., to maintain the drain in proper shape and to carry necessary repairs. Use of Negative words not essential While describing the covenant, the absence of negative words cannot by itself always indicate that the covenant is of positive character88. Thus, the absence of negative form of expression in a covenant is immaterial when from the substance of the agreement a negative agreement can be seen to be implied89. A covenant to keep pillars of 12 cubits in dimension in the land is a negative covenant though positive in form90. Similarly the covenant to leave a space having the width of 12 fingers to the respective sides from a common wall in case of future reconstruction of respective portions of building though positive in form is truly negative in its essence and character91. The basic distinction between negative and positive covenants is that in case of positive covenants, the transferee incurs a financial burden, so that the transferor can enjoy his property, while in the negative covenants he abides by, not to do something, and while not doing it, he would not be incurring a liability. For example, A owns a land adjoining his house that he sells to B with four conditions: (i) that while building upon the land, B would leave four feet space so as not to obstruct his light and air; (ii) that on his wall, adjoining A’s own house, he would not construct open windows, so that his privacy may be protected; Page 43 of 89

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(iii)that the wall adjoining A’s house would always be properly cemented and painted, so that the transferor is not accosted with the ugly sight; and (iv)that he would maintain the front lawn as a garden, as A himself had in his own house, so that both the houses do not appear dissimilar. The transferee agreed to abide by all the four conditions. Here, the first two conditions are in the nature of negative covenants, and do not impose a burden on the transferee; while the later two are positive covenants, that require the transferee to use money. As transfer of property is primarily a contract between two parties, both are bound by the conditions that are stipulated in the contract, that are not opposed to law. So, in this case, the transferee would be bound by all four conditions that he agreed to abide by, in the first place. As these covenants or conditions are part of the contractual obligations of the parties to the contract, they cannot be assigned to anyone, and remain enforceable only between the parties who had expressly agreed to abide by them. While positive covenants are called ‘burden on land’, the negative covenants imposed for beneficial enjoyment of transferor’s own land are called ‘benefits of a covenant’. They attach themselves to the land and run with the land92. If the transferee sells the property to a third party for value, the positive covenants would not bind the bona fide purchaser, but the negative covenants, because they run with the land, can be enforced even against the subsequent purchasers not only by the original transferor, but also by the assigns. As the benefits of a covenant attach themselves to the land and run with it, irrespective of the owner, they can be enforced not only against the transferee who was party to the contract, but also against all subsequent transferees, for value if they had notice of it, and irrespective of notice against gratuitous transferees. For example, A, the owner of a house sells the adjoining land to B with a condition that B would leave open some area for the benefit of the seller. A died and his successors sued the assigns of B to enforce the covenant, when he attempted to build upon it. They can do so as this covenant ran with the land.93 Thus, the transferor is competent to issue such direction if it has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of property, and he is also competent to enforce such direction or any remedy which he may have in respect of a breach thereof.1 Such conditions as aforesaid can be enforced only by the transferor and not by the transferee of the other portion of the property.2 Thus, a covenant to pull down when required by the vendor rooms over a passage between the house of the vendor and the house sold can be enforced against the vendee, but being an affirmative covenant cannot be enforced against a stranger3 unless such right can be specifically transferred to him.4 IMPORTANT CASES In Austerberry v. The Corporation of Oldham,5A conveyed land adjoining his own land to B, with a condition that he would maintain and repair a road on it, to which B agreed. B later sold the land to C, and A sold his land to D. D sued C to enforce the covenant. The court held that he could not do so as a covenant, that is a burden on land, can be enforced only if it amounts to either a grant of an easement, or a rent charge or an estate or interest in land. Page 44 of 89

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In Tulk v. Moxhay,6A was the owner of a vacant piece of ground, and several houses forming a square. The garden had an equestrian statue standing in its centre and around it, stonework and iron railings. A sold this garden to B with a condition that B, his heirs/assignees would at all times at their own costs and charges, keep and maintain the garden and the statue in its same form, as a square garden in an open state without any building, in neat and ornamental order carry out sufficient and proper repairs. The contract further provided that B would allow the other inhabitants of the square, access to the garden on payment of a reasonable rent. A at the same time, retained several houses in the square. B sold the garden to C, and it passed several hands till X bought it. It is noteworthy that the conveyance deed through which X got the garden contained no conditions, positive or negative. However, X was aware, that while initially selling the garden to B, A had inserted these conditions. He however, manifested an intention to alter the character of the garden and built upon it. He contended that these conditions were positive covenants and a burden on the land, and were enforceable only as between the parties to the contract and not against the subsequent purchasers for value. An injunction was granted to A, restraining X from converting, using or building upon this garden or changing its character. On appeal filed by X, Lord Cottenham L.C., observed, that the issue here was not merely whether the covenant that does not run with the land can be enforced but also, whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his seller with notice of which he purchased. The court observed: It is now contended, not that the vendee could violate that contract, but that he might sell that piece of land, and that the purchaser from him may violate it without this court having any power to interfere. If that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless.

The court noted that the price would be affected by the covenant but then nothing would be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. The court held that no one purchasing with notice of an equity can stand in a different situation from that of the party from whom he purchased; and therefore X, who was aware of the conditions in the contract, irrespective of their character, was bound by it. CONDITION MAKING INTEREST DETERMINABLE ON INSOLVENCY OR ATTEMPTED ALIENATION

Section 12. Condition making interest determinable on insolvency or attempted alienation.—

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Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void. Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

GENERAL PRINCIPLE Section 12 provides that if the transferor includes a condition in the deed that the interest created in the transfer will be defeated if the transferee becomes insolvent, such condition would be void. The term ‘defeated’ implies that if the transferee becomes insolvent, the transfer would be treated as cancelled and the property would revert back to the transferor. Such a condition may deprive not only an owner a right of alienation, but also defeat, at the same time, the rights of his creditors, who may want to enforce their claim against this property on his attaining insolvency. Where a person becomes insolvent, his property vests in the official receiver, and a condition that his interest in it will cease, will prevent it from vesting it in the official receiver. It must be noted that this section applies only when there is an absolute transfer; and is in consonance with the general principle that the transferor should not be allowed to put conditions that unreasonably interfere with the interest created in favour of the transferee or encroach upon his right to alienate the property. The first part refers to determination of the interest of the transferee in a specific situation, i.e., when the transferee becomes insolvent. For example, A transfers the property absolutely to B, with a condition that if B becomes insolvent or attempts to transfer it, his interest in the property will come to an end, B is entitled to ignore this condition without affecting the validity of the transfer. This property can be attached by the court or he himself may alienate it according to his wishes. Thus, a condition in the grant that if such property is sold in auction for the grantee’s debt the grant will come to an end, is void.7 CONDITION FOR THE BENEFIT OF THE LESSOR The rule does not apply to a condition in a lease for the benefit of the lessor or those claiming under him.8 Thus, a covenant determining a lease in the event of the insolvency of the lessee is valid,9 but if the lessee assigns the lease and then becomes insolvent, the condition does not apply.10 TRANSFER FOR THE BENEFIT OF UNBORN PERSONS

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Section 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 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 A’s 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 A’s remaining interest in the property. GENERAL PRINCIPLE Section 13 gives effect to the general rule that a transfer can be effected only between living persons. There cannot be a direct transfer to a person who is not in existence or is unborn. This is the reason why s. 13 uses the expression transfer ‘for the benefit of’ and not transfer ‘to’ an unborn person.Law contemplates transfers for the benefit of unborn persons in two ways, one is by the creation of a trust, where the property is transferred to the trustees, who, though possess the title to the property, hold the property in trust for the benefit of the class of beneficiaries who can be ‘unborn persons’. The second method is explained under this section. Unborn Person A person not in existence has a specific reference to one who may be born in the future but does not have a current existence. Even though a child in womb is literally not a person in existence, but has been so treated under both Hindu law and English law. Thus, it should be noted that the term ‘unborn’ here, refers to not only those, who might have been conceived but are not yet born, i.e., a child in womb, but also includes those who are not even conceived. Whether they will be born at all or not is also a possibility, but a transfer of property is permissible to be effected for their benefit. Transfer for the Benefit of Unborn Persons Section 13 provides for a specific mechanism for transferring property validly for the benefit of unborn persons. The procedure is as follows.

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(i) The person intending to transfer the property for the benefit of an unborn person, should first create a life estate11 in favour of a living person and after it, an absolute estate in favour of the unborn person. (ii) Till the person, in whose favour a life interest is created is alive, he would hold the possession of the property, enjoy its usufruct i.e. enjoy the property. (iii)During his lifetime if the person, (who on the day of creation of the life estate was unborn) is born, the title of the property would immediately vest in him,12 but he will get the possession of the property only on the death of the life holder. Illustrations (i) A, on 1st January, 1980 executes a deed by which he creates a life interest in his property in favour of his brother Br and further provides, that this property is to vest absolutely in favour of his brother’s first child UB. Br, on the date of the transfer, was unmarried. He took the possession of the property, got married and a child was born to him in 1985. The moment the child was born, he took a vested interest in the property. The possession continues with Br, till his death in 2000, upon which the life estate will come to an end and UB would take the possession of the property. (ii) In the same example, take a situation, where UB is born in 1985 but dies in 1987, i.e., during the lifetime of Br. Here, since UB takes a vested interest in the property, he becomes the owner at the time of the birth. Here the possession of the property will continue with Br, till 2000 and on his death, upon which the property will go to the heirs of UB. (iii)Similarly, if UB was never born and Br dies in 2000, the property would revert back to A, if he is alive or if he is dead, it would go to A’s heirs, as if A died in 2000, leaving behind this property. Creation of a Prior or a Life Interest As far as the creation of a prior interest is concerned, first, the property is given for life to a living person. It is not necessary that life interest should be created in favour of only one living person. The transferor is competent to create successive life interests in favour of several living persons at the same time. For instance, A transfers property to B for life, and after him, to C, and then to D again for their lives and then absolutely to B’s unborn child UB.

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On B’s death, the possession would be taken by C and on C’s death, by D. On D’s death, the Page 49 of 89

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possession would go to B’s child, who should have come in existence by this time. If he is not there, the property would revert back to A, if he is alive, else, to his heirs. No Life Interest for an Unborn Person As far as the unborn person is concerned, no life interest can be created for the benefit of an unborn person. Section 13, specifically prohibits that, by the use of the expression, ‘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. It means that the transferor must convey to the unborn person, whatever interest he had in the property, without retaining anything with him. Thus, no limited estate can be conferred for the benefit of the unborn person. If a limited interest in the property is settled for him, the same would be void. For example, A creates a life estate in favour of his friend B, and a life estate for the benefit of B’s unborn first child UB 1 and then absolutely to B’s second child UB 2.

The second transfer is of a limited interest in the property for the benefit of an unborn person and would therefore be void and incapable of taking effect in law. After the death of B, here, the property would revert back to A or his heirs as the case may be, as even though the transfer for the benefit of UB 2 appears to be proper, as it is dependent on a void transfer that cannot take effect in law; a transfer subsequent to, or dependent on a void transfer can also not take effect.Thus, where a father gave a life interest in his properties to his son and then to his unborn children absolutely, it was held that the settlement was valid.13 But where the interest Page 50 of 89

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in favour of the unborn child was a life interest the settlement would be void, and a subsequent interest would also fail.14 Similarly, where there is a possibility of the interest in favour of the unborn child being defeated either by a contingency15 or by a clause of defeasance,16 it would not be a bequest of the whole of the interest, and would therefore, be void. Validity of Transfer to be Assessed by the Language of the Deed and not by Actual Events In the example cited above, in figure (ii), suppose UB 1 dies before B and UB 2 is alive when the life estate in favour of B comes to an end. Even then, the transfer for the benefit of UB 2 will not take effect as the validity of the transfer has to be assessed from the language of the document and not with respect to probable or actual events that may take place in future. It is the substance of the transfer that will determine whether it is permissible under the law or not and not how the situation may emerge in future. In Girjish Dutt v. Data Din,17A made a gift of her property to B for her life and then to her sons absolutely. B had no child on the date of execution of the gift. The deed further provided that in case B had only daughters, then the property would go to such daughters but only for their life. In case B had no child then after the death of B, the property was to go absolutely to X. The deed on paper provided a life estate in favour of B’s unborn daughters, which is contrary to the rule of s. 13. However, B died without any child, and X claimed the property under the gift deed. The court held that where a transfer in favour of a person or for his benefit is void under s. 13, any transfer contained in the same deed and intended to take effect or upon failure of such prior transfer is also void. In determining whether the transfer is in violation of s. 13, regard has to be made with respect to the contents of the deed and not what happened actually. Here, as the transfer in favour of X was to take effect on failure of the third transfer stipulated in the contract that was void, the transfer in favour of X also became void. Hence, X’s claim was defeated. Where A transferred the property in favour of B with a stipulation that the property is to be shared by B with his other siblings not in existence on the date of the transfer, the transfer in favour of unborn persons is valid and B would have to share the property with them.18 Subsequent Conduct of Limited Owner Irrelevant The original deed granting both a life interest in favour of a living person and an absolute interest for an unborn person cannot subsequently be tampered with by a limited beneficiary to the detriment of the unborn person. Such an attempt will not be valid and cannot create any right in favour of a third party so as to defeat the rights of a person not in existence at the time of the transfer but to whom the interest is ultimately to belong. In JV Satyanarayana v. Pyboyina Manikyan,19 a person A created a life estate in favour of S, and an absolute interest in favour of the unborn sons of S. Before the birth of the sons, S executed a relinquishment deed with respect to his life interest in the property in favour of his father. With regard to the validity of the transfer in favour of the sons of S, the court held, that Page 51 of 89

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the transfer in their favour was valid and unaffected by the relinquishment deed executed by S, as its validity would be guided by the terms of the original transfer deed and not by the subsequent events including this act of relinquishment. When S relinquished his life interest in favour of F, the absolute transfer in favour of his sons was unaffected, as the validity was dependent on the terms of the original grant, and that could not be altered by any other person. S and his sons, both were the beneficiaries under the original deed executed by A. Though the interest created in their favour varied vis--vis each other, yet at the same time, an intermediary or a beneficiary who took what was granted under the transfer by A could not validly or legally defeat the conferment of the interest in favour of the subsequent and ultimate beneficiary either before or after their birth, by any action of theirs. Even if they created a life interest in favour of another person, by such relinquishment, they cannot prevent the vesting of the property absolutely in favour of their sons the moment they were born. DIFFERENCE BETWEEN ENGLISH LAW AND INDIAN LAW Under Indian law, the estate created for the benefit of the unborn child cannot take effect unless it extends to the whole of the interest in the properties, subject to the creation of a prior interest in favour of a living being. Only an absolute interest can be granted to an unborn child. If a limited interest is created, the transfer for the unborn would be void. Under English law, however, a limited interest can be created in favour of an unborn child, but not subsequent to that. For instance, A creates a life interest in favour of his friend B and on his death, to his unborn son UB1 for life, and then to B’s unborn grandson UB 2 absolutely.

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This transfer would be valid under English law but would fail under Indian law in favour of unborn son UB 1, due to s. 13 and in favour of unborn grandson UB 2, due to s. 16. RULE UNDER HINDU LAW Prior to the enactment of the TP Act, the rule under Hindu and Muslim law was that a gift to a person who was not in existence, was void. The position under Muslim law continues to be the same. However, for Hindus, the rule was modified by a series of enactments to bring it in conformity with s. 13 of the TP Act.20 Parallel provisions have also been provided under the Indian Succession Act, 1925,21 which permits bequests for the benefit of S an unborn person. Section 113 of the Indian Succession Act, 1925 (IS Act), applies to legacies created for the persons not in existence and contain a provision almost identical to s. 13 of the TP Act. The illustrations given under s. 113 of the IS Act below can also be used to understand s. 13 of the TP Act. Section 113 of the Indian Succession Act, 1925, is as follows:

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Section 113. Bequest to person not in existence at testator’s death subject to prior bequest.— Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustrations (i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void. (ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A’s daughters is valid. (iii)A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any of them marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life and may be divisible among her children after her death. A has no daughters living at the time of the testator’s death, but has daughters born afterwards who survive him. Here, the direction for a settlement has the effect in the case of each daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator’s death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void. (iv)A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled upon his daughters, so that the portion of each daughter may belong to herself for life, and may be divided among her children after death. B has no daughter living at the time of the testator’s death. In this case the only bequest to the daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to persons not yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void. RULE AGAINST PERPETUITY

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Section 14. Rule against perpetuity.— No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some other person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

MEANING OF PERPETUITY Perpetuity literally means eternity or infinity, and is also generally understood as an indefinitely, long time period, and in relation to transfer of property, it means creation of an interest in present, but which is to take effect after perpetuity. Though the term perpetuity is not explained anywhere with reference to specific number of years, it is understood under s. 14 as equivalent to the lifetime of one or more living persons plus the minority (till attainment of eighteen years) of an unborn person, who would take the absolute interest in the property. Minority Minority, in India, terminates at the attainment of 18 years. However, the term ‘minority’ in s. 14 is to be understood as only 18 years and not any other age, i.e., legal minority, where the age of minority was extended to 21 years,22 because, the validity of creation of an interest for the benefit of a person not in existence is to be judged by the transfer deed. This transfer deed is executed even before the person in whom the property is to vest absolutely, was born and therefore, whether, the minority of such a person would terminate at 18 years or 21 years cannot be foreseen in advance. It is something that may happen actually and in determining the validity of the transfer, regard cannot be had to actual events. Where the bequest was in favour of the daughters of the testator for life and after that the interest was to go to her children at the age of 21 years, and a guardian was appointed for them so that their minority terminated at the age of 21 years, it was held that the bequest failed as offending the rule against perpetuity because on the date of the testator’s death, it was not certain whether any guardians would be appointed for the children.23 Rule Against Perpetuity In continuation of the rule explained under s. 13, rule against perpetuity can be understood in this manner. Under s. 20, it has been provided that unless a contrary intention appears from the terms of a transfer, where, on a transfer, an interest is created for the benefit of a person not in existence, the moment he is born he acquires a vested interest in it, although he may not immediately be entitled to enjoy it, as the property may be in possession of the life estate holder. But the vesting of property takes place at his birth.

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The term, ‘unless a contrary intention shows’, means that this rule of vesting of property at birth can be changed by the transferor, and he can stipulate the specific time of vesting of property in favour of the beneficiary. However, he cannot stipulate a time of vesting which goes beyond the period of perpetuity i.e., life time of a living person or more than one living persons and the attainment of 18 years of the person not in existence on the date of the transfer, but who would be born at the time when the life estate comes to an end and would be the ultimate beneficiary. For instance, (i) A transfers property for life to B, and then to B’s first child when he attains the age of 18 years absolutely. B is living on the date of the transfer but has no child. In this case, when B’s first child would be born, the property would not vest in him till he attains the age of 18 years. If he dies without attaining the age of 18 years, it would revert back to the transferor or his heirs as the case my be. (ii) A transfers property for life to B, and then to B’s first child when he attains the age of 25 years. The transfer is void, as the vesting of the property is postponed beyond the minority of B. (iii)A transfers property for life to B, and then to B’s first child when he attains the age of 10 years. The transfer is perfectly valid and the property would vest in his favour, on his attaining the age of 10 years. INALIENABILITY OF PROPERTY TO ITS DETRIMENT The rule against perpetuity is based on the general principle that the liberty or right of the owner of a property to alienate or transfer his property at his pleasure, should not be so exercised that it is detrimental to the property itself. If by any mechanism, the property is made inalienable it would be detrimental to the property. Since the conferment of the lifeestate, till attainment of majority of the ultimate beneficiary, the property would be inalienable, and that is the maximum period with respect to inalienability of the property that is allowed under law. The transferor cannot stipulate a period over and above this, and if he does so, the transfer for the benefit of an unborn where vesting extends beyond his minority is void. For example, A transfers his property to B, who is 30 years old and then to his unborn child UB, when he attains the age of 18 years. UB is born when B is 50 years old and the property vests in him 18 years later. Therefore, for 20+18, i.e., 38 years, the property is rendered inalienable. The possession of it is further postponed depending upon when B dies. If the transferees are living person, any number of successive life interests can be created in their favour, but as aforesaid, no life interest can be created for the benefit of a person not in existence on the date of the execution of the transfer. For example, A transfers his property in 1970 to B for life, then to C for life, then to D for life then to E for life and then to B’s such son UB who should first attain the age of 18 years. B, C,

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D and E were all living on the date of the transfer. B dies in 1990, C in 1985, D in 1992 and E in 2002. B’s son UB is born in 1980.

On the death of B, in 1990, the possession of the property would be taken by D as C died during B’s lifetime. E will get the property in 1992, on the death of D. UB attains the age of 18 years in 1998, so while the possession is still with E, the property will vest (ownership) in UB in 1998, while he will get the possession when the last life estate holder dies in 2002. Rule Applicable to Both Movable and Immovable Property Rule against perpetuity is applicable to both movable and immovable property. Thus, a gift of property or of a fund to the living son, and after him to his unborn sons, when they attain the age of 21 years would be hit by rule against perpetuity and would be void.24 Regard to be had to the Language of the Deed and not Actual Events As has already been explained under the notes to s. 13, in determining whether there is a violation of the rule against perpetuity or not, the language of the transfer will be the determining factor, and not how the facts present themselves in reality in future. In other words regard must be had to the possible and not actual events. Examples:

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(i) A transfers his property in 1950 to B for life and then to B’s first (unborn) child when he would attain the age of 25 years. B’s child is born in 1951, and B dies in 1977. (ii) A transfers his property in 1950 to B for life and then to B’s first (unborn) child when he would attain the age of 18 years. B dies in 2000 and his child is born in 1975. The first transfer violates the rule against perpetuity and would be void, while the second would be valid. In the second illustration, though the property would vest in the child after 43 years of its initial transfer it would be valid. However, in the first illustration, it could have become alienable after 26 years of the original transfer, yet this practical situation would be totally irrelevant. In Ram Newaz v. Nankoo,25 a person A, executed a sale deed of his land, (minus two bighas of it) in 1884 in favour of B. With respect to two bighas of his land, in the document he provided as follows: The 2 bighas of land which I have excluded from the sale shall remain in my possession for life and after my death in the possession of my aulad - khas (descendants). I or my lineal descendants have no right to transfer the property excluded either permanently or temporarily. If none of my lineal descendants is alive in my family, then the said land shall be declared to be the own property of the vendee and his heirs and the persons of my family shall have no claim to the same.

With this deed, in effect he had created a life estate in favour of himself and his son, and also their unborn descendants. This was in violation of s. 13, as only absolute interest in the property can be transferred for the benefit of the unborn person(s) Secondly, here, according to the terms of the document, the property was sought to be made inalienable by creation of life estates for the benefit of unlimited number of generations. In real sense, the property could have been tied up for unspecific and a very long time period. However, what actually happened was that A died a little later after the execution of this deed and his son died childless in 1918. As per the transfer deed, the vendee (B) took possession of the property, i.e., the two bighas of land. The heirs (reversioners) of A filed a suit to recover possession of this property on the ground that since this transfer of two bighas in favour of lineal descendants of A was void, a transfer intended to take effect after this void transfer would also fail. Accepting the contention, the court noted: Having regard to what actually happened here, these two bighas of land could have become the property of the vendee within a life or lives in being and twenty one years after that (if there was no law to the contrary), but the fact that it happened to fall in within the legal limitation is not the test which is to be applied to these cases. What has to be seen is whether the event can be postponed to beyond the period of a life or lives in being and 21 years after and not what in fact happened. Applying that test to the facts of this case, it is perfectly evident that these two bighas of land might have remained with the lineal descendants of A for 100 or 200 years.

The court held that this was a condition repugnant to the law, and the vendees (B), could not set up this document as entitling them to possession of the property. The court decided in favour of the reversioners. Therefore, whether there is a violation of the rule against perpetuity or not is to be seen from the terms and conditions as they appear on paper and not what actually had happened, i.e., in deciding the question of remoteness regard must be had to the Page 58 of 89

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possible and not to actual events.26 Illustrations of Transfers Hit by Rule Against Perpetuity A gift of share to the son when he would attain the age of 21 years,27 or a son who might be adopted by the life tenant at any time in future,28 is void. But where the bequest provided that the house was to be possessed by the sons and after them the grandsons without any power of alienations and then to the unborn great-grandsons absolutely, it was held that the bequest did not offend the rule against perpetuity as the sons and the grandsons were alive on the date of the bequest.29 Similarly, a life interest created in favour of the wife by the husband before the interest goes absolutely to the children, does not offend the rule against perpetuity.30 A disposition of shebaitship by creating successive life interests is invalid.31 But perpetuity is not repugnant in cases of religious or charitable endowments32 or a wakf.33 Rule Against Perpetuity not to Apply to Personal Agreements Rule against perpetuity does not apply to personal agreements.34 It 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. It is therefore well established that the rule of perpetuities concerns rights of property only and does not affect the making of contracts which do not create rights of property.35 Rule against perpetuity does not apply to a charge36 or exercise of equity of redemption by the mortgagor,37 but, in the absence of a charge payment of income to a payee from generation to generation is void as offending the rule against perpetuity.38 However, where the shebaits of a temple agreed to appoint the family of one person as pujaris from generation to generation to perform the services of the temple and make provision for their expenses and remuneration of the office, it was held that the agreement is valid and not affected by rule against perpetuity.39 Similarly, an agreement in a lease granting a perpetual option to renew from time to time,40 or to surrender the permanent lease whenever the land is required by the landlord,41 is not hit by rule against perpetuity. Rule Against Perpetuity and a Right of Pre-emption Rule against perpetuity as aforesaid does not apply to a covenant of pre-emption.42 In Ram Baran Prasad v. Ram Mohit Hazra,43 the main issue was whether a pre-emption clause executed by the parties would be hit by the rule against perpetuities. Here, the property was partitioned between two brothers, A and B, with a pre-emption clause in each other’s favour, i.e., if any one of them wanted to sell his share, he had to first offer it to the other brother. Only upon his refusal to buy it could it be sold to others. A offered to sell his portion to B, which he refused and therefore, he sold it to C. Similarly, B sold his portion to D. Further, C sold his property to X and D sold it to Y.

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X filed a suit against Y and D, for pre-empting the purchase, contending that as Y had notice of this clause of pre-emption the same can be enforced against them. Y and D on the other hand argued that the pre-emption clause was hit by rule against perpetuity and was therefore void. They maintained that the same could not be invoked against them. The trial court held that the covenant of pre-emption was binding on Y and D as they had notice of it, and X was entitled to enforce the right of pre-emption. They further held that the covenant of pre-emption was not hit by the rule against perpetuity and was enforceable against the assignees of the original parties to the contract. Accordingly, they granted a decree in favour of X, asking them to deposit the requisite money for pre-empting the suit property, and Y was directed to execute the transfer deed in favour of X within 15 days. The High Court as well as the Supreme Court upheld this decision. Explaining the object of the rule against perpetuity under TP Act, the court said that 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 interests in property. Rule Against Perpetuity and Lease A lease is not a mere contract. It is a transfer of a right to possess and enjoy the property, and can be created for a specific number of years or even in perpetuity. However, rule against perpetuity is applicable only in those cases where there is a transfer of property, and the vesting of it is postponed beyond the period of perpetuity. It, therefore, does not apply in cases of lease. In R Kempraj v. Burton Son and Co.,44 the main issue was, whether an option given to a lessee (tenant) to get the lease, which is initially for a period of 10 years, renewed after every 10 years is hit by the rule of perpetuity and is void. Here, a lease was executed by A in favour of B, with a renewal option given to B after every 10 years in perpetuity. After 10 years B exercised the option for renewal and upon A’s failure to execute the same, sought the court’s help in issuing a direction to A to execute a registered lease deed in his favour. A contended that the condition relating to renewal was hit by rule against perpetuity and therefore, was not binding on him. The court said: it is well known that the rule against perpetuity is founded on the principle that the liberty of alienation shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property for ever out of the reach of the exercise of the power of alienation.

It was held that s. 14 is applicable only when there is a transfer of property and the clause containing renewal after every 10 years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of s. 14. Section 114 of the Indian Succession Act corresponds to s. 14 of the TP Act and provides as follows:

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Section 114. Rule against perpetuity.— No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

Illustrations (i) A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer lives of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void. (ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B’s death to such of B’s sons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case the sons of B are persons living at the time of the testator’s decease, and the time when either of them will attain 25 necessarily falls within his own lifetime. The bequest is valid. (iii)A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B’s death it shall be divided amongst such of B’s children as shall attain the age of 18, but that, if no child of B shall attain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at the expiration of 18 years from the death of B, a person living at the testator’s decease. All the bequests are valid. (iv)A fund is bequeathed to trustees for the benefit of the testator’s daughters, with a direction that, if any of them marry under age, her share of the fund shall be settled so as to devolve after her death upon such of her children as shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in existence at his decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18 years from the death of the daughters whose share it was. All these provisions are valid. In Veerattalingam v. Ramesh,45 A executed a Will giving the possession of her properties to her sons without any power of alienation, and after that, a life interest was created in favour of her son’s sons, who were also alive at the time of executing the bequest. The testament further provided that after the death of such grandson, the property was to vest in the great grandsons (who were unborn on the date of execution of the Will) absolutely. The apex court held that the bequest was not hit by the rule against perpetuity as successive life interests could be Page 61 of 89

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created in favour of any number of living persons, and both sons and grand sons in whose favour the life interest was created were living on the date the bequest was created. TRANSFER TO A CLASS

Section 15. Transfer to class some of whom come under sections 13 and 14.— If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails in regard to those persons only and not in regard to the whole class. The principle under s. 15 is that as far as possible the transfer should be given effect to.

LEGISLATIVE HISTORY Prior to 1929, the rule was that if by the same transfer an interest was created in favour of a class of persons, with respect to some of which it was void, and for some valid, the interest failed with respect to all of them. It said:

If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in Sections 13 and 14, such interest fails as regards the whole class. The law presently makes the transfer valid and effective for those, for whom it is capable of taking effect. For example, A transfers his property to his son S, for his life and then to his grandsons, when they attain the age of 18 years and to his daughters when they reach the age of 21 years. S had no child at the time of the transfer. This transfer created a life interest in favour of a living person (son), which is permissible in law, but with respect to the children of son, who were not in existence at the time of transfer, the transfer for the benefit of the unborn sons of S was valid but for unborn daughters, it is void as violative of rule against perpetuity. As it stood before 1929, s. 15 would have made the transfer in favour of both the unborn sons and daughters’, void. However, after the amendment, and under the present law, the transfer in favour of only the granddaughters will fail, but the same in favour of grandsons would be valid and will be given effect to. A life interest thus created by a bequest in favour of the widow who was in existence at the time of the testator’s death is valid, but it is invalid for the rest who were not in existence.46 Page 62 of 89

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However, where an interest created for the benefit of a class of persons fails in regard to such persons or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.47 For instance, A made a gift of her property to her nephew’s daughter for life and then to her male descendants if she should have any, absolutely but in case she had no male descendants, then to her daughters without power of alienation, and if there were no descendants of the nephew’s daughter then the property was to go to her nephew. When the nephew’s daughter died without leaving any issue and the nephew claimed the property, the interest created in favour of the unborn daughters was held as void and the subsequent gift to the nephew also failed due to failure of prior interest.48 An alternative or independent gift capable of taking effect independently of the void limitation is valid.49 Thus, where the testator bequeathed his properties to his three nephews and their descendants in the male line without power of alienation with a gift over stating that if any of the nephews died without a male child his interest was to be taken by the surviving nephews and their male descendants, the estate entail failed but the gift was valid.50 Invalidity of some of the gifts to relatives would not be fatal to other dispositions apparently separable, and similarly, noncharitable dispositions bad for perpetuity would not be validated by the presence of a charitable trust.51 In Raji Bajrang Bahadur Singh v. Thakurian Bakhtraj Kaur,52 a person A, died in 1930 leaving behind a son S1 and a widow of another son S2W. Shortly before his and his son’s death, he executed a Will in favour of S2 and after him a life interest in favour of his widow, and unborn heirs, by provision of their maintenance.

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S 2 died and then A died. S1 claimed property on the ground that the Will is invalid and he is the rightful heir of A. He contended that as the will created a life interest in favour of S2’s widow and his unborn heirs, this not being permitted under s. 13 of TP Act and s. 113 of IS Act, the Will was void.The court held: it is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirely. It is valid with regard to the persons who are in existence at the time of the testator’s death and is invalid as to the rest.

The widow who was the next heir of S2 was in existence when the testator died and the life interest created in her favour would certainly take effect. Her acquired interest in the Will was commensurate with the period of her life, and till she was alive, S1 had no right to claim possession of the property. Under the s. 115 corresponds to s. 15 of the TP Act and provides as follows:

Section 115. Bequest to a class some of whom may come under rules in sections 113 and 114.— Page 64 of 89

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If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.

Illustrations (i) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator’s death. Each child of A’s living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A’s children, therefore, is inoperative as to any child born after the testator’s death; and in regard to those who do not attain the age of 25 within 18 years after A’s death, but is operative in regard to the other children of A. (ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A, who shall attain the age of 25. B, C, D are children of A, living at the testator’s decease. In all other respects the case is the same as that supposed in Illustration (i). [Although the mention of B, C and D does not prevent the bequest from being regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D, who attains the age of 25 within 18 years after A’s death.] TRANSFER TO TAKE EFFECT ON FAILURE OF PRIOR INTEREST

Section 16. Transfer to take effect on failure of prior interest.— Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.

GENERAL PRINCIPLE According to s. 16, if, due to violation of the rules specified in s s. 13 and 14, a specific transfer fails and any transfer that is intended to take effect after or upon failure of such transfer also fails. For example, A transfers property to B for life and then to B’s sons on their Page 65 of 89

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attaining the age of 25 years. The deed further provides, that if B dies without any son, the property would vest absolutely in C. B and C were living on the date of the execution of the transfer, but B had no child on the same day. Here, the transfer for the benefit of B’s unborn children was void as it violated the rule against perpetuity. Thus the transfer in favour of C that was intended to take effect upon failure of this prior transfer, that is void would also fail and cannot take effect. Prior Transfer Valid It must be noted that s. 16, uses the term transfer intended to take effect after or upon failure of ‘prior interest’, which means that the transfer subsequent to or after the void transfer fails and the transfer prior to or before this void transfer would take effect. In the above example, the transfer in favour of B for life is a transfer that is prior to this void transfer, and would be valid, and the benefit of the transfer would stop with the death of B, i.e., B would be entitled to possess and enjoy the property for his life and after his death, the property would revert back to A, if he is alive or, would go to his legal heirs. This rule is based on the principle that a condition following a void condition, or a transfer dependant upon a void transfer is in itself void, even though if seen independently, it may be valid. Here, the transfer in favour of C, who was living on the day of the transfer, if seen independently, is valid. But because it was intended to take effect upon failure of a transfer not permitted in law, this would in itself become inoperative. This void transfer therefore operates not as non-existent, but as a wall or block that would not permit the benefit to pass through it to the next person in line. Alternative Transfer Valid A transfer intended to take effect after or upon failure of a void transfer must be distinguished from an alternative transfer, which would be valid if otherwise capable of taking effect in law. For example, A makes a transfer of his property to B, and then to B’s children on their attaining the age of 21 years. He further provides in the same deed, that if B has no child then he may make the gift in favour of anyone he likes. The transfer for the benefit of B’s unborn child was void as offending the rule of perpetuity, but the transfer at the pleasure of B is an alternative and independent transfer, that would commence from B, and not A, and therefore would be valid.53 Under the s. 116 corresponds to s. 16 of the TP Act and provides as follows.

Section 116. Bequest to take effect on failure of prior bequest.— Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such

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prior bequest is also void.]

Illustrations (i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void. (ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, and if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon failure of the bequest to such of A’s sons as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void. DIRECTION FOR ACCUMULATION OF INCOME

Section 17. Direction for accumulation.— (1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than— (a) the life of the transferor, or (b) a period of eighteen years from the date of the transfer, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed. (2) This section shall not affect any direction for accumulation for the purpose of— (i) the payment of the debts of the transferor or any other person taking any interest under the transfer; or (ii) the provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer; or (iii)the preservation or maintenance of the property transferred, Page 67 of 89

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and such direction may be made accordingly.

GENERAL PRINCIPLE Section 17, that was again inserted by the amending Act of 1929, applies to transfers where the property and the income arising from property are separated by the transferor while effecting a transfer, and the transferee is directed not to spend the income but accumulate it for a specific or a non-specific period. Where the period, for which the transferee cannot enjoy the income but must accumulate it, exceeds the life of the transferor or a period of 18 years, such direction for accumulation would be void and can be validly ignored by the transferee for the period. Law favours free alienation of property and spending of the income arising from it except only where the tying up of property or storage or accumulation of income is reasonably desired. The first part of s. 17 specifies the time period beyond which the direction for accumulation of income would be void. The prescribed time period is the life of the transferor, or from the date of the transfer, a period of 18 years. These limitations are in the alternative, and not in combination of the two, such as the life of the transferor and 18 years. For example, A transfers his property to B in 1960 with a direction, that the income coming out of this property be accumulated for a period of 50 years. A dies in 1962, the maximum period for which the income can be accumulated would be 1960+18, i.e., 1978, after which B is free to use the income as he wishes. Similarly, A transfers a property to B in 1960, with a direction for accumulation of income for a period of 20 years. A dies in 1990, i.e., 30 years after the execution of the deed. After his death, the direction for accumulation would become void. This direction of accumulation would be valid only till the life of the transferor. This computation of period is a matter of construction, and has to be gathered from the intention of the transferor.54 Validity of the Transfer not Effected Where the direction for accumulation exceeds the specified period but merely empowers the transferee to ignore it for excess time period, without affecting the validity of the transfer, in such a case, s. 17 does not make the transfer void. Where the time limit is specified which is different from what has been given under s. 17, then the actual events subsequent to the transfer would determine the maximum permissible time. It would be either the life of transferor, or 18 years, whichever is longer. If after execution of the transfer, the transferor dies within 18 years, income would have to be accumulated till 18 years, i.e., whichever period is longer. Exceptions There are three exceptions to the general rule of limitations or directions for accumulations. (1) Payment of debts Page 68 of 89

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Where the direction for accumulation of income is for the payment of debts of the transferor or any other person taking an interest under the transferor, then irrespective of the time period, s. 17(1) would not apply. The debt may be existing or may arise in future. But the direction for payment of debt must come from the transferor and should not be at the instance of a third party. It must also be for the payment of the debts of the transferor or of any one taking an interest under him. This direction is treated as constituting a kind of charge on the property in favour of the creditors, that they may realise in case an eventuality arises. For example, A executes a lease of his property and then assigns this lease to B for 99 years with a direction that half of the rent that he would receive would be accumulated for this entire period, so that the debts of A could be paid out of this accumulated income. This term, though exceeds the stipulated 18 years, and irrespective of the time of the death of the transferor would be valid. For the exception to apply the direction for accumulation must be bona fide, and the debts must be paid out of the income and not out of any other fund. The accumulated income must also be used for payment of debts and not for any other purpose such as creating a reserve for business. The utilisation cannot be at the discretion of a third party, as it is mandatory that the debts for the satisfaction of which the fund is created must actually be discharged out of it. Difference Between English and Indian Law.— Under English law, under s. 164, the exception is also comparatively wider that the one provided under the Indian law. Here, the directions for accumulation for the income can be for any time period, for the repayment of the debts of not only the transferor (that includes a settler, or a testator) or a person claiming an interest under him, but even that of a stranger. (2) Provision of portions for children or remoter issue The second exception, which permits accumulation of income for a period longer than the one specified under s. 17(1) is, if it is for making a provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer. The beneficiaries here can be the children or descendants of the transferor or even the transferee. For example, A gifts a land to his son B, with a direction that the income coming out of the land should be accumulated for 50 years and the same should be used for the benefit of B’s children. The direction would be valid. (3) Preservations and maintenance of the property Directions for accumulation of income arising from property or a portion of it can be validly imposed, if such direction is for the preservation and maintenance of the property that is the subject matter of the transfer. Thus, where it is directed that income be accumulated for carrying out the necessary repairs to the house transferred, it would be valid. Similarly, A transfers immovable property to B, that was in the occupation of tenants with a Page 69 of 89

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condition that one-fourth of the rent must be accumulated for a period of 100 years, so that the property be maintained and kept in good shape to preserve its market value. Such direction would be valid. The direction for accumulation under this exception would be valid only where it is intended that be used for the maintenance and preservation of the property that is the subject matter of transfer and not of a third property or any other property.55 Thus, where A settles property, and provides that the income be accumulated for the benefit of a son to be adopted,56 or for providing the marriage expenses of the descendants,57 or for the benefit of a minor disciple till he attained the age of 30 years, it would be valid,58 but if the direction not merely provides that the accumulated income is to be used for the benefit of the children or other descendants, but actually provides for distribution of the corpus of the property also, it would be hit by rule against perpetuity and would be void.59 A direction for the accumulation of the surplus income for the payment of the debts, for the benefit of the minor donee,60 for marriage expenses of the testator’s son,61 or for providing tuition fees of four deserving students62 is valid. But where the direction stipulated that every time the accumulations reached Rs. 3 lakh they were to be divided equally among the sons and the grandsons per stirpes it was held that the accumulations amounted to part and parcel of perpetuity and were bad in law.63 In a case where a devise to a minor disciple provided that income was to be accumulated till he attains the age of 30 years it was held that he was entitled to all the income on attaining majority.64 Under the, s. 117 corresponds to s. 17 of the TP Act and provides as follows:

Section 117. Effect of direction for accumulation.— (1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed. (2) This section shall not effect any direction for accumulation for the purpose of— (i) the payment of the debts of the testator or any other person taking any interest under the will, or (ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or (iii)the preservation or maintenance of any property bequeathed,

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and such direction may be made accordingly.

ACCUMULATIONS FOR THE BENEFIT TO PUBLIC

Section 18. Transfer in perpetuity for benefit of public.— The restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind.

The rules regarding remoteness and perpetuity and against accumulations of income do not apply if the same is for the benefit of the public. GENERAL PRINCIPLE The principle underlying s. 18 is to create a distinction between transfers that are purely commercial or personal in character and those which are intended to benefit the public. Where the transfer is for public welfare or public benefit, it is usually not subject to rigorous limitations or restrictions, rather, it is considered necessary to keep it intact so that public welfare can be taken care of. Therefore, restrictions imposed on general transfers such as rule against perpetuity, subsequent transfers failing to take effect if prior transfer is void, and directions for accumulation are not applicable here. Religious and Charitable Objects Section 18 specifies transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind. These objects are religious and charitable in nature and make the scope of application of the Act very wide in nature as is apparent by the inclusion of the term ‘any other object beneficial to mankind’. The term mankind shows that the beneficiaries under the transfer must be unspecified classes of persons generally and cannot be specific individuals, related or unrelated to the transferor. It means community as a whole, with reasonable classifications. For instance, a settlement where funds are to be accumulated even in perpetuity for feeding poor pilgrims,65 for buying a public hall, for creating a welfare fund for the advancement of a members of a particular disadvantaged class or caste, for the visually, physically or mentally challenged, orphans or the underprivileged, would be valid. But, a settlement when money is to be accumulated for the benefit of persons X, Y and Z, it would be void if it violates s. 17(1). Page 71 of 89

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A gift of land for the purposes of providing for playing fields for children or for parks and gymnasiums to promote health and welfare of people would be a gift for public purposes. Settlement of property so that the income can be used to maintain old homes, a prayer hall, or a community center; it would be for public purposes and would be covered under s. 18. Advancement of Religion As far as religion or its advancement is concerned, gifts or settlements for establishment of an idol66 and its worship,67 for performance of religious ceremonies,68 for celebrating religious festivals, or for creation of wakfs 69 are valid even if they offend the rule against perpetuity. However, a gift for dharma is void as it is vague and uncertain,70 as also a gift for spreading Hindu religion.71 A settlement by way of Will for the performance of certain ceremonies by a Parsi testator, that included ceremonies for the spiritual welfare of Zoroastrians is valid as one for the advancement of religion.72 A partial dedication is hit by rule of perpetuity and reverts back to the donor.73 In Controller of Estate Duty, West Bengal v. Usha Kumar,74 Venkataramiah J, dealing with a gift that was partly for the benefit of certain specific individuals and partly for religious purposes but which offended the rule against perpetuity; held that if the gift in favour of individuals is bad for offending the rule against perpetuity, the amount meant for such individual would become part of the property endowed for religious purpose. The result would be that the total settlement would be deemed to be for religious purposes. Health and Education The term health would cover gifts or bequests for the purposes of betterment of public health. Thus, gift or settlement of property under bequests, for charitable dispensaries, trauma centers, eye care centers, hospitals,75 institutions offering various medicare facilities, establishment of yoga and nature care centers, would be exempt from the rule against perpetuity. Establishment of educational institutions such as schools, colleges and universities, establishment or creation of trusts of promoting the knowledge would also enjoy similar protection. In M Kesava Gounder v. DC Rajan,76A created a trust, settled some properties and appointed himself as one of the four trustees. The object of the trust were two-fold, one to erect a statue of A’s father and secondly, a provision was made in the trust deed for payment of the school fees of four students of the community. A scheme was laid down for the perpetual maintenance of the statue and to celebrate his birth anniversary. The remaining income coming from these properties were to be divided equally amongst the four trustees. After their death, their respective shares were to be enjoyed by their respective male heirs and in absence of male heirs, the female heirs. On the issue as to whether the trust was hit by rule against perpetuity the Madras High Court held, that it did offend the rule against perpetuity as the dedication of the property was not real, but was in fact a devise for settling the property in perpetuity on the descendants of the donor in certain specified lines, and at all material times the income was to be divided amongst the trustees. The court held that as far as the trust provided for payment of school fees of four students of the community, it was not only Page 72 of 89

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covered under s. 18, but was, in fact, a laudable purpose, and to that extent, the accumulation was saved. However, neither the erection of the statue of the father nor a provision for celebrating his birth anniversary were purposes meant to benefit the public. Therefore, a clause in the trust providing for tuition fees for four deserving students,77 a gift for feeding poor pilgrims, distributing oil among them and saying prayers,78 for performance of religious ceremonies,79 for endowment of a hospital,80 or of a University,81 or a permanent endowment for maintaining a sadavrat for giving food to travelers82 is to the benefit to the public; but a gift merely for encouragement of sports is not a charity.83 VESTED AND CONTINGENT INTERESTS

Section 19. Vested interest.— Where, on a transfer of property, 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, 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. 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.

Section 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.84 Such interest becomes a vested interest, in the former case, on the happening of the event,85 in the 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.

GENERAL PRINCIPLE Page 73 of 89

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If the transfer is dependent upon the happening of an event that is bound to happen, the transferee takes a vested interest in the property. ‘Vested interest’ means that the transfer is complete, even though possession might not have been delivered. The ownership is with the transferee, and if he dies, he is empowered to transmit the property to his heirs. In contingent interest, the transfer is not complete and is dependent on a condition precedent the happening and fulfillment of which is not certain. It would be converted into a vested interest only when the condition happens. If the transfer is dependent on the happening of an uncertain event, it remains contingent till the happening of that event, but on its happening, it becomes a vested interest. For example, a gift to B, on the death of A’s father is a vested interest, but a gift to B on the birth of A’s son is a contingent gift, as whether a son will be born to A or not is uncertain, but the death of a human being is a certain event. If son was born, it would become a vested interest. For instance, a trust is created, and the trustees are directed to pay to A, a specific amount from the trust property, and the balance amount is to be utilised for the discharge of a mortgage debt. On A’s death, the property is to be given to B. B, with the creation of the trust, takes a vested interest in the property, as he is to get the property on A’s death. Death is a certainty, and irrespective of whether B survives A, a vested interest is created in his favour.86 In Usha Subbarao v. BN Vishveswaraiah,87 the Apex Court had observed: An interest is said to be a vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interestalthough the question whether the interest created is a vested or a contingent interest is dependent upon the intention to be gathered from a comprehensive view of all the terms of the document creating the interest, the court while construing the document has to approach the task of construction in such cases with a bias in favour of vested interest unless the intention to the contrary is definite and clear.

A condition postponing enjoyment does not prevent the interest vesting immediately,88 but may, in certain cases, be itself void for repugnancy after the transferee has attained majority.89 No particular form or words are necessary to effect vesting.90 The appointment of an executor or guardian during the minority of the devisee, with a direction to hand over the property on his attaining majority, does not postpone the vesting of the bequest.91 Where, pursuant to an agreement, the adopted son was denied the right to enjoy the property during the lifetime of the adoptive mother, it was held that

1.

Living persons includes a company, or association or body of individuals, whether incorporated or not. The law contained in the TP Act does not affect the law in force relating to the transfer of properties to or by companies, association or body of individuals, see Naranbhai v. Suleman, (1975) 16 Guj LR 289.

2.

Such as a corporation, see The Transfer of Property Act, 1882, s. 5.

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(IN) Poonam Pradhan Saxena : Property Law 3.

See Hindustan Levers v. State of Maharashtra, wherein it was held that the term inter vivos in context of s. Section 394 of Companies Act, 1956, would also include within its meaning, a transfer between two juristic persons, and a company can, therefore, transfer property.AIR 2004 SC 326 : (2004) 9 SCC 438 : MANU/ SC/0934/2003.

4.

Shyamal Ranjan Mukherjee v. Nirmal Ranjan Mukherjee, AIR 2008 (NOC) 568 (All); Jagran Shakya v. Gokul Prasad, AIR 2008 (NOC) 359 (MP); Harihar v. Gurugranth Saheb, AIR 1930 Pat 610; Narsimhaswami v. Venkatalingam, AIR 1927 Mad 636 [LNIND 1927 MAD 26]; Ramchandra v. Lalji, AIR 1959 Pat 305; Ram Kumar v. CIT, AIR 1966 All 100; Ramalinga v. Shivchidambara. (1919) ILR 42 Mad 440; see also Bhupathi Nath v. Ram Lal. (1910) ILR 37 Cal 128, wherein it was held that an idol is a symbol of deity and it is against Hindu religion that a deity should accept any property or worldly goods. See also Ahmad Hussain v. Kallu, AIR 1929 All 277; wherein it was held that dedication of property to God by a Wakf is subject to the application of s. 53 if the Wakf was created with an intent to defraud the creditors.

5.

Ragendra v. C Gounder, AIR 2007 (NOC) 1325 (Mad); Biopat Rao v. Ram Chandra, AIR 1926 Nag 469.

6.

Mardia Chemicals Ltd v. Union of India, (2004) 4 SCC 311 [LNIND 2004 SC 458]; Harish Chandra Hegde v. State of Karnataka, (2004) 9 SCC 780; Bharat Petroleum Corporation v. P. Kesavan, (2004) 9 SCC 772 [LNIND 2004 SC 434].

7.

N. Ramaiah v. Nagaraj S, AIR 2001 Kant 395 [LNIND 2001 KANT 175]; Lala Devi Das v. Panna Lal, AIR 1959 J&K 62; Surendra Vikram Singh v. Munia Kunwar, AIR 1944 Oudh 65; Jamindar of Badrachaan v. Venkatdri Appa Rao, AIR 1922 Mad 457.

8.

Raghubar v. Joy Indra Bahadur Singh, AIR 1919 PC 55.

9.

Official Assignee Madras v. Tehmina Dinshaw Tehrani, AIR 1972 Mad 187 [LNIND 1971 MAD 192].

10. Indoji Jethaji v. Kothapalli, 54 IC 146. 11. Govind Chandra v. Dwarka Nath, (1908) ILR 35 Cal 837; Jawahir Mal v. Indomati, (1914) ILR 36 All 201. See also the Presidency Towns Insolvency Act, 1909, s. 2(i) and s. 2(f) where transfer of property is defined as including a charge. 12. Provident Investment Co. v. Commr of Income Tax, AIR 1954 Bom 95 [LNIND 1953 BOM 42]. 13. Makkan Lal Saha v. Nagendra Nath Adhikari, (1933) ILR 60 Cal 379; Morati v. Krishna, AIR 1925 Nag 455; Samrathi Devi v. Parasuram, AIR 1975 Pat 140; see also Kalka v. Jaswant, AIR 1926 Oudh 69. 14. Hanuman Sahu v. Abbas Bandi, AIR 1929 Oudh 193; Khunni Lal v. Gobind Krishna, (1911) ILR 33 All 356; PC Basangowda v. Irgowdatti, AIR 1923 Bom 276; Balkrishna v. Ranganath, AIR 1951 Nag 171. 15. Sital Chandra v. Delanney, (1916) 20 Cal WN 1158; Bhagwan Sahai v. Narsingh Sahai, (1909) ILR 31 All 612; Konadayya v. Veeranna, AIR 1926 Mad 543; Satyanarayana v. Lakshmayya, AIR 1929 Mad 79. 16. Rachappa v. Ninagappa, AIR 1926 Bom 40; see also Imam Valod Ibrahim v. B Appaji, (1917) ILR 41 Bom 510. There has been a conflict of judicial opinion on this issue. 17. Joyden Sen v. State of West Bengal, AIR 2010 (NOC) 256 (Cal). 18. Pankajini v. Sudhir Datta, AIR 1956 Cal 669 [LNIND 1956 CAL 27]; Immudipattam Thirugnana v. Periya Dorasami, 28 IA 46; see also Sunil Sidharta Bhai v. Commr Income Tax, AIR 1986 SC 368 [LNIND 1985 SC 303], wherein it was held that if exclusive interest is reduced to a shared interest it would amount to a transfer. 19. Kuppuswami v. Arumugam, AIR 1967 SC 1395 [LNIND 1966 SC 176]. 20. T Mammonn v. K Ramunni, AIR 1966 SC 337; see also Harish Chandra v. Chandra Shekhar, AIR 1977 All 44. 21. Joshua v. Alliance Bank, (1895) ILR 22 Cal 185, 202. 22. U Theta v. U Aresena, AIR 1939 Rang 76. 23. A Nadalwan v. N Malvarayan, AIR 1936 Mad 918 [LNIND 1936 MAD 165]. 24. Matadin v. Karim, (1891) ILR 13 All 432; Banssi Gopal v. Banerjee, AIR 1949 All 433. 25. Jones v. Skinner, (1835) 5LJ Ch 90. 26. Ramshankerlal v. Ganesh Proshad, (1907) ILR 29 All 385. 27. Commr. v. Lakshmindra, AIR 1954 SC 282 [LNIND 1954 SC 69]. 28. Muchiram v. Ishan Chander, (1894) ILR 21 Cal 568; Rudra Prakash v. Krishna, (1887) ILR 14 Cal 241. 29. Narasingerji v. Panaganti, AIR 1924 PC 226. 30. Vasudev Ram Chandra Shelat v. PJ Thakkar, (1974) 2 SCC 323 [LNIND 1974 SC 195]; VB Rangaraj v. VB Gopalakrishnan, AIR 1992 SC 453 [LNIND 1991 SC 637]; SP Jain v. Kalinga Tube, AIR 1965 SC 1535 [LNIND 1965 SC 6]. 31. Joydev Sen v. State of West Bengal, AIR 2010 (NOC) 256 (Cal). 32. Sunil Sidharthbai v. Commr of Income Tax, AIR 1986 SC 368 [LNIND 1985 SC 303].

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(IN) Poonam Pradhan Saxena : Property Law 33. Indar Sen v. Naubat Sen, (1885) ILR 7 All 553. 34. Gulam Husein v. Fakir Mahomed, AIR 1947 Bom 185; Umesh Chander v. Jahoor Fatima, 17 IA 201. 35. Ma Yait v. Official Assignee, AIR 1930 PC 17. 36. Inderloke Studio Ltd v. Santi Debi, AIR 1960 Cal 609. 37. Jugal Kishore v. Raw Cotton Company, AIR 1955 SC 376 [LNIND 1955 SC 21]: (1955) 1 SCR 1369 [LNIND 1955 SC 21] : (1956) 58 Bom LR 517; Abdul v. Goolam, (1906) ILR 30 Bom 304. 38. Sumsuddin v. Abdul Husein, (1909) 31 Bom 172; Harnam v. Akbar, AIR 1937 Pesh 76. 39. See The Transfer of Property Act, 1882, s. 5. 40. Ditcham v. Miller, AIR 1931 PC 203; per Jessel MR in Collyer v. Isaacs, (1882) 19 Chd 342. 41. Per Martin J in Re Md Hasham & Co., AIR 1923 Bom 107. 42. Annadamohan v. Gourmohan, 25 Cal WN 496, 508. See also Prem Sukh v. Habibullah, AIR 1945 Cal 355, 358; Collyer v. Isaacs, (1882) 19 Chd 342, 351. 43. Holroyd v. Marshall, (1862) 10 HLC 191; Tailby v. Official Receiver, 13 App Cas 543; see also Purnachandra v. Barnakumari, AIR 1939 Cal 715. 44. However, it does not enable a person to grant a lease to himself, and does not enable two or more persons to grant a lease to all of themselves; see Rye v. Rye, [1962] AC 496, [1962] 1 All ER 146 (HL). Nor can a nominee grant a lease to his principal, at any rate one which is not a bare term containing no covenants by either party: Ingram v. IRC, [1997] 4 All ER 395 (CA). 45. The Transfer of Property Act, 1882, s. 5. 46. Naranbhai v. Suleman, (1976) 16 Guj LR 289. 47. Aratappa v. Jagannath, AIR 2007 Ker 91 [LNIND 2006 KER 855]; VN Sarin v. Ajit Kumar Poplai, AIR 1966 SC 432 [LNIND 1965 SC 184]; see also Reddiar P v. K Reddi, AIR 1966 Mad 419 [LNIND 1965 MAD 203]; Panchali v. Panniyodan Manni, AIR 1963 Ker 66 [LNIND 1962 KER 174]; Ganu Santu v. Shankar Tukaram, (1968) 71 Bom LR 165; Muthuveeran Chetty v. Govindan Chetty, AIR 1961 Mad 518 [LNIND 1961 MAD 30]; Kisansingh Mohan Singh v. Vishnu Balkrishna, AIR 1951 Bom 4 [LNIND 1950 BOM 55]; Khirode Sundari v. Chunilal, (1945) 49 Cal WN 779; Suhasini Poddar v. Sreenath Chakravarty, (1945) 49 Cal WN 769; Indoji Jethaji v. Kothapalli, 54 IC 146; Satya Kumar v. Satya Kirpal, 3 IC 247; Gyanessa v. Mubarakanessa, (1917) 25 Cal 210. For a contrary opinion, see also Jagannathpuri Guru v. Gocabai, AIR 1968 Bom 25 [LNIND 1966 BOM 87]; Raman Pillai v. Madhavan Pillai, AIR 1959 Ker 235 [LNIND 1958 KER 137]; Daya Bhai v. State of Bombay, (1960) 62 Bom LR 348; Banarasilal v. Bhagwan, AIR 1955 Raj 167 [LNIND 1954 RAJ 40]; Kartar Singh v. Rameela, AIR 1950 J&K 18; Sadhu Ram v. Pirthi Singh, AIR 1936 Lah 220; Waman Ram Krishna v. Ganapat Mahadeo, (1935) 37 Bom LR 925; Rasa Goundan v. Arunachala, AIR 1923 Mad 577 [LNIND 1923 MAD 41]. 48. VD Deshpande v. Kusum Kulkarni, AIR 1978 SC 1791 [LNIND 1978 SC 267]; see also Atrabanessa Bibi v. Safutullah Mia, 31 IC 189, wherein it was held that partition is analogous to an exchange; Rasa Goundan v. Arunachala, AIR 1923 Mad 577 [LNIND 1923 MAD 41]. For another opinion, see Muthuveeran Chetty v. Govindan Chetty, AIR 1961 Mad 518 [LNIND 1961 MAD 30]; Suhasini Poddar v. Sreenath Chakravarty, (1945) 49 Cal WN 769. See also Sohni v. Raj Kumar Singh, AIR 1932 All 678, wherein it was held that under the partition act, it means a change of ownership. 49. Venkiteswara Prabhu Ravindranatha Prabhu v. Surendranath Prabhu, AIR 1985 Ker 265. 50. Revenue Authority v. BA Mallaya, AIR 1971 Mad 210 [LNIND 1970 MAD 80]. 51. AIR 1966 SC 432 [LNIND 1965 SC 184]: [1966] SCR 349. 52. AIR 1916 PC 104. 53. AIR 1965 SC 866 [LNIND 1964 SC 309]. 54. AIR 1988 SC 1365 [LNIND 1988 SC 598]: (1988) 3 SCC 63 [LNIND 1988 SC 598]. 55. AIR 1966 SC 432 [LNIND 1965 SC 184]: (1966) SCR 349. 56. Chandrawati v. Lakshmi Chand, AIR 1988 Del 13 [LNIND 1987 DEL 103]. However, see also Soni Ram v. Dwarkabai, AIR 1951 Bom 94 [LNIND 1951 BOM 7], wherein it was held that the partition amounts to transfer within the meaning of s. 53. 57. Revenue Board v. BA Mallaya, AIR 1971 Mad 210 [LNIND 1970 MAD 80]. 58. Chief Controlling Revenue v. SK Krishnamurthy, (1989) TNLJ 133; see also P Balakrishnan v. District Registrar, AIR 1989 Mad 257 [LNIND 1988 MAD 292]. 59. Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1 [LNIND 2009 AP 582]. 60. Anup Kumar Debabarma v. Abindra Kumar Debbarma, AIR 2009 (NOC) 588 (Gau); Jagdish v. Rajwanti AIR 2008 P&H 27; Gurchanran Ram v. Tejwant Singh, AIR 2008 (NOC) 1650 (P&H); Vincent Lourdbenathan Dominiquev Josephine Syla

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(IN) Poonam Pradhan Saxena : Property Law Dominique, AIR 2008 (NOC) 1173 (Mad). See also Jagran Shakya v. Gokul Prasad AIR 2008 (NOC) 359 (MP) wherein, it was held that a family arrangement is not synonymous to partition; Hasan Khani Rawther v. Muhammad RawtherAIR 2008 (NOC) 1126 (Ker); Ramdev Food Products Pvt Ltd v. Arviondbhai Rambhai Patel, AIR 2006 SC 3304 [LNIND 2006 SC 670]; Hari Shanker Singhania v. Gaur Hari Singhania AIR 2006 SC 2488 [LNIND 2006 SC 237];, Amteshwar Anand v. Virendra Mohun Singh, AIR 2006 SC 151 [LNIND 2005 SC 812], For family arrangements see also, Subbegowda v. Thimmegowda, (2004) 9 SCC 734 [LNIND 2004 SC 503]; Tek Bahadur v. Debi Singh, AIR 1966 SC 292. 61. Sahu Madho Das v. Mukund Ram, AIR 1955 SC 481 [LNIND 1955 SC 25]. 62. Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1 [LNIND 2009 AP 582]. 63. K Jagannathan v. AM Vasudevan Chetiar, AIR 2000 Mad 184. 64. AIR 2001 Kant 395 [LNIND 2001 KANT 175]. 65. AIR 1986 Del 1 [LNIND 1985 DEL 181]: 28 (1985) DLT 229. 66. Robinson v. Macdonnell, (1816) 5 M & s. 228; Re Mudge (1914) 1 Ch 115 (CA); Re Bowden, Hulbert v. Bowden, (1936) Ch 71, 74, 14 Vin Abr 50. 67. ‘The law doth not allow of grants except there be a foundation of an interest in the grantor. Thus, a tenant of land may assign all his interest in the future crops of that land, or a parson may grant all the tithe wool that he is to have in such a year, but a man cannot grant all the wool that is to grow on the sheep he may subsequently buy; See Grantham v. Hawley, (1615) Hob 132; Petch v. Tutin, (1846) 15 M & W 110; a deed of gift disposing only potential property is effective without delivery see Thomas v. Kelly, (1888) 13 App Cas 506,519 (HL). 68. See Lunn v. Thornton, (1845) 1 CB 379; Tapfield v. Hillman, (1843) 6 Man&G 245 (where, however, on a question of construction of the instrument, it was held that future chattels were not included). 69. Thomas v. Kelly, (1888) 13 App Cas 506, 515 (HL). 70. Lunn v. Thornton, (1845) 1 CB 379. 71. See The Transfer of Property Act, 1882, s. 6(a). A voluntary assignment of an expectancy does not create an enforceable contract, even if by deed,Meek v. Kettlewell, (1843) 1 Ph 342 ; Re Ellenborough, Towry Law v. Burne, (1903) 1 Ch 697. 72. Samsuddin v. Abdul Husein, (1906) 31 Bom 165. 73. AIR 1933 Mad 795 [LNIND 1933 MAD 166]. 74. See The Transfer of Property Act, 1882, s. 6(a). 75. Abdul Wahid v. Nurabibi, (1885) 11 Cal 597 (PC). 76. Sham Sunder v. Achhankunwar, 25 IA 183; Harnath Kaur v. Inder Bahadur, AIR 1922 PC 403; Annanda Mohan v. Gour Mohan, AIR 1923 PC 189; Amritnarayan v. Gaya Singh, 45 IA 35, (1918) ILR 45 Cal 590; Annanda Mohan v. Gour Mohan, AIR 1923 PC 189 : 48 Cal 536, 25 Cal WN 496; Jatilal v. Benimado, AIR 1937 Pun 280; Bhagwati v. Jagdam, AIR 1921 Pat 260; Gurbhuj v. Lachhman, AIR 1925 Lah 341; Mahadeo Prashad v. Mathura, AIR 1931 All 589; Karusinga v. Narsinha, AIR 1938 Bom 121; Shah Nawaz v. Ghulam Murtaza, AIR 1942 Lah 138. 77. Amrit Narayan v. Gaya Singh, (1918) ILR 45 Cal 590. 78. Jaganadav Raju v. Rajah Prasada Rao, 39 Mad 554; Annanda Mohan v. Gour Mohan, 48 Cal 536. 79. Khunnilal v. Govinda, 15 Cal WN 545; Hardei v. Bhagwan, 24 Cal WN 105 PC; Ramgouda v. Bhausaheb, AIR 1927 PC 227, 54 IA 396; Hiran Bibi v. Sohan Bibi, AIR 1914 PC 144; Annanda Mohan v. Gour Mohan, 25 Cal WN 496; Subbu Chetty v. Raghava, AIR 1961 SC 797 [LNIND 1961 SC 33]: [1961] 3 SCR 624 [LNIND 1961 SC 33]. 80. Umashanker v. Ramcharan, AIR 1939 All 689; Sahu Madhodas v. Mukund Ram, AIR 1955 SC 481 [LNIND 1955 SC 25]; Pannommal v. Srinivasarangan, AIR 1956 SC 162; Ramcharan v. Girja Nandini Devi, AIR 1966 SC 323 [LNIND 1965 SC 141]; Ramgouda v. Bhausaheb, AIR 1927 PC 227. 81. Gujar v. Auliya, AIR 1914 Lah 460. 82. AIR 1923 PC 189. 83. Asabeevi v. S. Kuruppan, (1918) ILR 41 Mad 365. 84. Abdul v. Abdul, AIR 1959 Mad 131 [LNIND 1958 MAD 44]; Samsuddin v. Abdul Husein, (1906) 31 Bom 304. 85. Tailby v. Official Receiver, (1883) 13 App Cas 523 (HL). 86. An assignment of after-acquired property under English law, when made for valuable consideration, operates in equity as a contract which is enforceable against the assignor, and which, as soon as he acquires property which can be identified as that comprised in the assignment, becomes an equitable charge upon that property. See Holroyd v. Marshall, (1862) 10 HL Cas 191; Tailby v. Official Receiver, (1888) 13 App Cas 523, HL; Re Ellenborough, Towry Law v. Burne, (1903) 1 Ch 697 at 699; Re Dallas (1904) 2 Ch 385, 393 (CA); Re Reis, ex p Clough (1904) 2 KB 769 (CA) (affd sub nom Clough v. Samuel, (1905) AC 442 (HL); Re Lind, Industrials

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(IN) Poonam Pradhan Saxena : Property Law Finance Syndicate Ltd v. Lind, (1915) 1 Ch 744 (affd (1915) 2 Ch 345 (CA); Re Wait [1927] 1 Ch 606 (CA). As soon as the assignor acquires the legal interest, the equitable interest passes to the assignee, equity treating as done that which ought to be done. See Collyer v. Isaacs, (1881) 19 Ch D 342 at 351 (CA), explained and distinguished in Re Lind, Industrials Finance Syndicate Ltd v. Lind, (1915) 2 Ch 345 (CA), and the assignor then becomes trustee of the chattels for the assignee. See Holroyd v. Marshall, (1862) 10 HL Cas 191. If the assignee lawfully acquires possession of the property when it comes into existence, the legal title vests in him. See Holroyd v. Marshallk(1862) 10 HL Cas 191, 220. See also Hope v. Hayley, (1856) 5 E&B 830; Morris v. Delobbel-Flipo, [1892] 2 Ch 352 at 360, whether the assignment was for value or not. See Re Bowden, Hulbert v. Bowden, (1936) Ch 71. It is, however, uncertain whether a person can effectively charge or assign his whole estate. See Barker v. Barker, (1952) P 184, (1952) 1 All ER 1128 (CA); Syrett v. Egerton, (1957) 3 All ER 331, (1957) 1 WLR 1130, DC. 87. AIR 1973 SC 554 [LNIND 1972 SC 442]. 88. AIR 2010 Ker 44 [LNIND 2009 KER 796]. 89. See The Transfer of Property Act, 1882, s. 6(a). 90. P. Raghudu v. N. Erraiya, AIR 1938 Mad 881 [LNIND 1938 MAD 325]. 91. Soloman v. Official Assignee, AIR 1939 Rang 8. 1.

Puncha v. Bindeshwari, 19 Cal WN 580; Nitya Gopal v. Nani Lal, (1920) ILR 47 Cal 990; Paragi v. Gauri Shanker, 51 IC 86; Shoilojanund v. Peary Charon, (1902) ILR 29 Cal 470. For a contrary opinion see Balmukund v. Tulari Ram, AIR 1928 All 21; Zaharia Mal v. Parmeshri Das, AIR 1942 Lah 284; Subh Ram v. Ram Kishan, AIR 1943 Lah 265.

2.

Auryaprabhakara v. Gummudu, AIR 1926 Mad 885.

3.

Mallika v. Ratanmani, 1 Cal WN 493.

4.

Kali Kinkor Ganguli v. Panna Banerjee, (1974) 2 SCC 563 [LNIND 1974 SC 239].

5.

Sukhlal v. Bishambhar, (1917) ILR 39 All 196. See also Balmukund v. Tularam, AIR 1928 All 21; Bhagwandeen v. Billeshwur, AIR 1937 Oudh 15, wherein it was held that the right to receive offerings made at a temple which dissociated from priestly office is transferable. See also Zuharia Mal v. Parmeshri, AIR 1942 Lah 284; Nandkumar v. Ganesh, AIR 1936 All 131.

6.

Badri Nath v. Punam, AIR 1973 J&K 7.

7.

For distinction between spes successionis and the rule of feeding the grant by estoppel, see notes under s. 43, infra at p. 210.

8.

Except as otherwise provided by the TP Act or any other law for the time being in force. See The Transfer of Property Act, 1882, s. 6.

9.

Samsuddin v. Abdul Husein, (1909) 31 Bom 165.

10. Rajah Sahib Perhlad v. Brudhoo, (1869) 12 MIA 275. 11. See The Transfer of Property Act, 1882, s. 6(b). 12. Re Davis & Co., 22 QBD 194. 13. ‘Land includes things permanently attached to earth: See The Indian Easements Act, 1882, s. 4,Explanation. It also includes land under water: Chandee Churn Roy v. Shib Chunder Mundul, (1880) ILR 5 Cal 945, see also Ramessur Persad Narain Singh v. Koonj Behary Pathuk, (1879) ILR 4 Cal 633. Easements are attached to land for the beneficial enjoyment of which is created and run with it, see Chinnasami Goundan v. AS Balasundora Mudaliar, AIR 1934 Mad 575 [LNIND 1934 MAD 105]; Ganesh Prasad v. Khuda Baksh, AIR 1918 Oudh 296; Madan Mohun Chakravorty v. Sashi Bhushan Mukherji, AIR 1915 Cal 403. 14. Beneficial enjoyment includes possible convenience, remote advantage and even a mere amenity, See the Indian Easements Act, 1882, s. 4Explanation. 15. To do something includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage of any part of the soil of the servient heritage, or anything growing or subsisting upon it. See the Indian Easements Act, 1882,Explanation. 16. See the Indian Easements Act, 1882, s. 4 para 1. 17. See Mohammed v. Ananthachari, AIR 1988 Ker 298 [LNIND 1987 KER 544]. 18. Dukhi Mullab v. Halway, Proprietor of Manjhaul Factory through his manager R Crowdy (1896) ILR 23 Cal 55. 19. Ganesh Prasad v. Khuda Baksh, AIR 1918 Oudh 296. 20. Ranga Row v. Ramathilakamma, 45 IC 435. 21. Ramachandra Vasudev Vijapure v. Anant Laxman Thakur, AIR 1926 Bom 282. 22. Official Trustee of Bombay v. Salebhai Sarafally Bhagat, AIR 1926 Bom 328. 23. Dhaneshwar Tewari v. Antu Tewari, AIR 1927 All 115; see also Ladha v. Mabi, AIR 1947 Lah 79.

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(IN) Poonam Pradhan Saxena : Property Law 24. See The Transfer of Property Act, 1882, s. 6(c). 25. Sital v. Delanney, (1916) 20 Cal WN 1158, 34 IC 450. 26. Bagwan v. Narasingh, AIR 1931 All 612. 27. See Transfer of Property Act, 1882, s. 6(d);Basangowda v. Iragowda, AIR 1923 Bom 276. See also Juggarnath v. Kishen Pershed, 7 WR 266, wherein it was held that if such transfers were allowed then it would have the effect of defeating the presumed intention of its creation. 28. Shoilojanund v. Peary Charon, (1902) ILR 29 Cal 470; Nirya Gopal v. Provash, (1920) ILR 47 Cal 990. 29. Dani Ram v. Jamuna Das, 2010 (1) ALJ 706 : AIR 2010 (NOC) 524 (All). 30. Rajah Vurma v. Ravi Vurma, 4 IA 76; Mallika v. Ratnamani, (1897) 1 Cal WN 493; Prayag Das v. Kriparam, 8 Cal LJ 499; Panchanan v. Surendra, AIR 1930 Cal 180. 31. Munshi Sahed Baksh v. Golam Nabi, (1918) 22 Cal WN 996. 32. Juggernath v. Kishen, 7 WR 266. 33. Satya v. Satya, AIR 1942 PC 5. But where the services can no longer be enforced and the tenure consequently ceases to be a service tenure the land can be alienated, see Bhagwant v. Sheo Pershad, 18 Cal WN 297; Appasami v. MZCO., AIR 1922 PC 154; Bangshi v. T Ashutosh, AIR 1925 Pat 366. 34. Arjaneyalu v. Venugopal, AIR 1922 Mad 197 [LNIND 1922 MAD 12]. 35. Rajjo v. Lalmon, (1883) ILR 5 All 180. 36. Raghudu v. Erraiya, AIR 1938 Mad 881 [LNIND 1938 MAD 325]; Dhandu v. Girdharilal, AIR 1961 All 518 [LNIND 1960 ALL 172]. 37. See The Transfer of Property Act, 1882, s. 6(dd); see also Haliman v. Umadatunnissa, AIR 1939 Pat 506. 38. See the s. 60. 39. Dhupnath v. Ramcharit, AIR 1932 All 662; Kamalchunder v. Sushila Bala, AIR 1938 Cal 405. 40. Ramprasad v. Motiram, AIR 1947 Pat 404. 41. Sethupathi v. Chidambaram, AIR 1938 PC 126. 42. See The Transfer of Property Act, 1882, s. 6(e);Venkataram v. Venkataswami, AIR 1921 Mad 56 [LNIND 1920 MAD 129]; Manmatha v. Moti Lal, AIR 1929 Cal 719; Jagannath v. Kalidas, AIR 1929 Pat 245; Susai v. Ramaswami, AIR 1933 Mad 710 [LNIND 1933 MAD 144]. See also Venkata v. Kesava, AIR 1926 Mad 417, wherein it was held that if the right to sue relates to a definite amount due it would be assignable as a debt. 43. Gangaraju v. Gopala, AIR 1957 AP 190. 44. Murlidhar v. Rupendra, AIR 1953 Cal 231 [LNIND 1951 CAL 110]. 45. Abu Muhammad v. SC Cundur, 13 Cal WN 384; Jewan Ram v. Ratan Chand, 26 CWN 285; Gopala Iyer v. Ramaswami, 22 Mad LJ 207; Hirachand v. Nemchand, AIR 1923 Bom 403; Jai Chand v. Naraindas, AIR 1925 Lah 548; Mohanlal v. Motilal, AIR 1935 Nag 135. 46. Sri Gopal v. Theatres, AIR 1947 Cal 200. 47. Venkataswami v. Ramchandra, 38 Mad 138. 48. Khettramohan v. Bishwanath, AIR 1924 Cal 1047; Prohalad v. Vishwanath, AIR 1953 Nag 335; Baba Hakam Singh v. Naranjin Singh, AIR 1937 Lah 934. 49. Govindaswami v. Ramaswami, 30 Mad LJ 492. 50. Kocharala v. Pillala, 38 Mad 308; Jai Narayan v. Kishun Datta, AIR 1924 Pat 551. See also Prasanna Kumar v. Ashutosh, 18 Cal WN 450, wherein it was held that where a claim for mense profits merges with the decree before assignment the right under the decree is assignable. 51. Ghisulal v. Gambhirmal, (1938) ILR 62 Cal 510 : 39 Cal WN 646 : 82 IC 411. 52. Chokalingam v. Seethai, AIR 1927 PC 254. 53. Kowtha Suryanarayana v. Yarudala, AIR 1923 Mad 177. 54. Maracait v. Bathumal, AIR 1948 Mad 458 [LNIND 1947 MAD 222]. 55. Seth Veshindas v. Thawardas, AIR 1925 Sind 18. 56. Thawardas v. Nishindas, AIR 1925 Sind 72.

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(IN) Poonam Pradhan Saxena : Property Law 57. Radha Govinda v. KD Colliery, AIR 1963 Pat 160. 58. G Ramaswami v. Deivasigamani, AIR 1922 Mad 397 [LNIND 1922 MAD 54]. 59. Chimanmlal v. Ganesh, AIR 1952 Raj 187 [LNIND 1952 RAJ 201], where what is assigned is not a mere right to sue but property with an incidental remedy for its recovery and consequential benefits, the assignment is valid. See also Manmatia v. Matilal, AIR 1929 Cal 719; Shankararappa v. Khatumbi, AIR 1938 Bom 478; S.L. Villavaraya v. M. Ramaswami, AIR 1933 Mad 710 [LNIND 1933 MAD 144]. 60. Manmatha v. Sheikh Hedait, AIR 1932 PC 32; Tikamsingh v. Bholanath, AIR 1937 All 470. 61. Jagannath v. Kalidas, AIR 1929 Pat 245. 62. See The Transfer of Property Act, 1882, s. 6(f). 63. Murarilal v. Narayanlal, AIR 1956 Pat 345. 64. Arbuthnot v. Norton, 3 MIA 435. 65. MSM Railways v. Rupchand, AIR 1950 Bom 155 [LNIND 1947 BOM 74]. 66. Ananthayya v. Subba Rao, AIR 1960 Mad 188 [LNIND 1959 MAD 103]. 67. Saundariya Bai v. Union of India, AIR 2008 MP 227 [LNIND 2008 MP 193]. 68. See The Transfer of Property Act, 1882, s. 6(g). 69. Suraj Devi v. Sita Devi, AIR 1996 Raj 6. 70. Wasif v. K.I. Bank, AIR 1931 PC 160. 71. Secretary of State v. Khemchand, (1880) ILR 4 Bom 432. 72. Kasim v. Carlier, (1882) ILR 5 Mad 273. 73. Shah Muhammad Habibul v. Abdul, AIR 1926 All 521. 74. Ganpat Rao v. Anant Rao, (1910) ILR 32 All 148. See also Atma Ram v. Kehar Singh, AIR 1930 Lah 904, where in it was held that a pension may take the form of an assignment of land revenue. 75. Duni Chand v. Gurmukh Singh, AIR 1930 Lah 816. 76. Valia v. Anujani, (1903) ILR 26 Mad 69. 77. See The Transfer of Property Act, 1882, s. 6(h). 78. Raja Verma Valia v. Kettayath, (1875) 7 Mad HC 210. 79. Kanwar Doorganath v. Ramchunder, (1877) ILR 2 Cal 341; Narayan v. Chintaman, (1881) ILR 5 Bom 393; Shama v. Abdul, (1898) 3 Cal WN 158. 80. Anjaneyalu v. Devabrata, AIR 1949 Cal 278. 81. See The Transfer of Property Act, 1882, s. 6(h). 82. Gogun v. Janokee, (1873) 20 WR 235; Protina v. Dookhia, (1872) 18 WR 450. 83. However, see also Abdul Rehman v. Ghulam Mohammad, AIR 1927 Lah 18. 84. Narayan v. Gopalrao, AIR 1922 Bom 382. 85. Bakshi Das v. Nadu Das, (1905) 1 Cal LJ 261; Dholidas v. Fulchand, (1898) ILR 22 Bom 658. 86. Jaffer Mehar Ali v. Budge Budge Jute Co., (1906) ILR 33 Cal 702; Re Nripendra Kumar Bose, AIR 1930 Cal 171. 87. Raghunath v. Nathu, (1895) ILR 19 Bom 626. 88. Jhinguri v. Durga, (1885) ILR 7 All 878; Har Prashad v. Sheo Govind, AIR 1922 All 134; Dayaram v. Thakuri, AIR 1924 All 668. For a contrary opinion, see also Dip Narain Singh v. Nageshwar, AIR 1930 All 1. 89. Ghoga Lal v. Pujari, (1909) ILR 31 All 58. For a contrary opinion, see Pranballav Shah v. Tulshi Bala, AIR 1958 Cal 713 [LNIND 1958 CAL 139]. 90. Putimal v. Bhagwan, AIR 1892 Rang 2. 91. Ghumna v. Ramchandra, AIR 1925 All 437; Deivanayaga v. Muthu Reddi, AIR 1921 Mad 326; Istak Kamu Musalman v. Ranchod Zipru Bhate, AIR 1947 Bom 198; Sabava v. Yamanappa, AIR 1933 Bom 209; Brahmayya Lingam v. Kamisetti Mallamma alias Kanakamma, AIR 1924 Mad 849 [LNIND 1924 MAD 69]. 92. Tayaramma v. Sitaramasami Naidu, (1900) ILR 23 Mad 613.

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(IN) Poonam Pradhan Saxena : Property Law 93. Belo v. Parbati, (1940) All 371; Godfrey v. Parbati, (1938) ILR 17 Pat 308. 94. Nagaratnamba v. Ramayya, AIR 1968 SC 253 [LNIND 1967 SC 207]. 95. See The Transfer of Property Act, 1882, s. 6(h). 1.

See the Code of Civil Procedure, 1908, O XXI r 73.

2.

The Transfer of Property Act, 1882, s. 136.

3.

Mohiri Bibi v. Dhurmodas Ghose, (1903) ILR 30 Cal 539.

4.

Munni Kunwar v. Madan Gopal, (1916) ILR 38 All 62.

5.

Ulfat Rai v. Gauri Shanker, (1911) ILR 33 All 657; Narain Das v. Dhania, (1916) ILR 38 All 154.

6.

Raghava v. Srinivasa, (1917) ILR 40 Mad 308; Zafar v. Zubaida, AIR 1929 All 604; Thakar v. Putli, AIR 1924 Lah 611.

7.

Munni Kunwar v. Madan Gopal, (1916) ILR 38 All 62.

8.

Govinda Kurup v. Bekku, AIR 1931 Mad 147; Promila v. Jogeshwar, (1918) Pat LJ 518; see also Jaykant v. Durgashanker, AIR 1970 Guj 106 [LNIND 1968 GUJ 65].

9.

See The Transfer of Property Act, 1882, s. 6(i).

10. Shanti Prasad v. Bachchi Devi, AIR 1948 Oudh 349; Banmali v. Bisheshar, (1907) ILR 29 All 129; Kedar Nath v. Naipal, (1912) ILR 34 All 155; Motichand v. Ikram Ullah, (1916) 39 All 173. 11. The Transfer of Property Act, 1882, s. 87. 12. The Transfer of Property Act, 1882. 13. Hiramoti v. Annoda Prasad, (1906) 7 Cal LJ 553; Kailash Chandra Pal v. Hari Mohan Das, (1909) 13 Cal WN 541. 14. Bhagban Das v. Bisweswar, AIR 1927 Cal 220. 15. Rasik Lal v. Bidumuki, (1906) ILR 33 Cal 1094; Bhairabendra Narian Roy v. Rajendra Narian Roy, AIR 1924 Cal 45. 16. Sarat Chandra Saha v. Bepin Behari Chakerbutty, AIR 1933 Cal 687. 17. Amarnath Singh v. Har Prashad Singh, AIR 1932 Oudh 79; Jang Bahadur v. Rai Raja, 7 OC 235. 18. See The Transfer of Property Act, 1882, s. 6(i). 19. See Mohiri Bibi v. Dharumdas Ghose, (1903) ILR 30 Cal 539. There are conflicting decisions as to whether a minor can be estopped by a false representation that he is of age. See Bromoho v. Dharmo, (1898) 26 Cal 381; Mohamed Syedol Ariffin v. Yeoh, AIR 1916 PC 242; Khan Gul v. Lakha Singh, AIR 1928 Lah 609; Sadiq v. Jai Kishore, AIR 1928 PC 152; Balangowda v. Bhiman Gowda, AIR 1929 Bom 201. 20. See The Indian Succession Act, 1925, s. 307. 21. Amina Bibi v. Saiyid Yusuf, AIR 1922 All 449. 22. Jivan Lal v. Gokul Das, (1904) 17 CPLR 13. 23. Gauri Shanker v. Chinnumaya, (1918) 46 Cal 183. 24. Chittu v. Charan Singh, AIR 1923 All 563. 25. BC Mondal v. Indurekha Devi, AIR 1973 SC 782. 26. K Kamamma v. Appanna, AIR 1973 AP 20. 27. BC Mondal v. Indurekha Devi, AIR 1973 SC 782. 28. Amirtham Kudumban v. Sarnam Kudumban, AIR 1991 SC 1256 [LNIND 1991 SC 214]. 29. AIR 2010 Jhar 56 [LNIND 2009 JHAR 33]. 30. Ram Chandra v. Kalyan Singh, AIR 2006 All 184; Bishwanath Prasad Singh v. Rajendra Prasad AIR 2006 SC 2965 [LNIND 2006 SC 146]; Union of Inida v. Millenium, Mumbai Broadcasting Ltd, AIR 2006 SC 2751 [LNIND 2006 SC 320]; Harbans Singh v. Takamani Devi, AIR 1990 Pat 26; see The Transfer of Property Act, 1882, s. 8. 31. Arkkani v. Subramaniam, AIR 2007 (NOC) 2118 (Mad). 32. Arkkani v. Subramaniam, AIR 2007 (NOC) 2118 (Mad). 33. Kalidas v. Kanhaiyalal, (1884) 11 Cal 121. 34. Chumar v. Naraynan Nair, AIR 1986 Ker 236 [LNIND 1985 KER 294].

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(IN) Poonam Pradhan Saxena : Property Law 35. Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879 [LNIND 1961 SC 233]; Babaji Dehuri v. Biranchi Ananta, AIR 1996 Ori 183 [LNIND 1996 ORI 155]. 36. Narain Prashad Singh v. State of Bihar, AIR 1983 Pat 244. 37. Sumathy Amma v. Sankara, AIR 1987 Ker 84. 38. Ram Narian v. Peary, (1883) ILR 9 Cal 830; Jyoti Prasad Singh v. Seddon, AIR 1940 Pat 516; Bisheshwar Singh v. Achhaibar Din, AIR 1941 Oudh 507. See also Decota Din v. Gur Prasad, AIR 1955 All 292 [LNIND 1954 ALL 231]; Umrao Singh v. Kacheru Singh, AIR 1939 All 415. 39. Shyan Sunder Ganeriwala v. Delta International Ltd., AIR 1998 Cal 233 [LNIND 1997 CAL 289]. 40. Lalit Mohun v. Chukkun Lal, (1897) ILR 24 Cal 834; Surajmani v. Rabina, (1908) ILR 30 All 84; Bhaidas v. Bai Gulab, AIR 1922 PC 193; Jagmohan Singh v. Srinath, AIR 1930 PC 253; Saraju Bala v. Jyotirmoyee, AIR 1931 PC 179. 41. Mahomed Sahmsool v. Shewukram, (1875) 14 Beng LR 226; Motilal v. Advocate General of Bombay, (1911) ILR 35 Bom 279; Mithibai v. Meharbai, AIR 1922 Bom 179; Ashurfi Singh v. Biseswar, AIR 1922 Pat 362. See also Shalig Ram v. Charanjit, AIR 1930 PC 239; Jagmahun Singh v. Srinath, AIR 1930 PC 253, wherein it was held that a Hindu wife enjoyed the absolute rights in the property conferred unless the circumstances in the context were sufficient to show a contrary intention; see also Hitendra Singh v. Maharaja of Dharbhanga, AIR 1928 PC 112. 42. A Sreenivasa Pai v. Saraswathi Anmal, AIR 1985 SC 1359 [LNIND 1985 SC 220]. 43. Syed Ashgar v. Syed Mahomed, 30 Cal 556; Sheoraj v. Gangu Prasad Rai, AIR 1941 Oudh 395; Leon Gan Kyu v. Maung Gyi, AIR 1933 Rang 24. 44. Raja Gour Chandra v. Raja Makunda, (1904) 9 Cal WN 710. 45. Mahmood Hasan v. Bhikari Lal, AIR 1953 All 705 [LNIND 1953 ALL 93]. 46. Pandurang v. Bhimrav, (1898) ILR 22 Bom 610. 47. Tarachand v. Lakshman, (1876) ILR 1 Bom 91. 48. Rajkumar Rajinder Singh v. State of Himachal Padesh, (1990) 4 SCC 320. 49. Mahomed Shumsool v. Shewukram, 2 IA 7; see also Hitendra Singh v. Maharaja of Darabhanga, AIR 1928 PC 112; Jagmohan v. Sheoraj, AIR 1928 Oudh 49. 50. Nand Lal v. Sunder, AIR 1944 All 17, however, see Sambasiva v. Venkatarama, AIR 1926 Mad 903 [LNIND 1926 MAD 24]. 51. Abdul Aziz v. Appayasami, (1904) ILR 27 Mad 131; Hawa Bi v. Sein Ko., AIR 1928 Rang 67; see also Kalidas Mullick v. Kanhya Lal, 11 IA 218 (PC). 52. Raja Anand v. State of Uttar Pradesh, AIR 1967 SC 1081 [LNIND 1966 SC 190]; see The Transfer of Property Act, 1882, s. 8. 53. Venkata v. Secretary of State, (1902) 12 Mad LJ 432. 54. Nubeen Chunder v. Bhoobun, (1871) 15 WR 526. 55. Ahmad Ali v. Dhondba, AIR 1937 Nag 179; see also Hamida Khatoon v. Panchayat of Mohalla Daryopore, AIR 1947 Pat 122. 56. Kota Narayana v. P Suryanarayan, AIR 1973 AP 94 [LNIND 1972 AP 102]; Hariharan v. Narayan, AIR 1933 Mad 482 [LNIND 1932 MAD 286]. 57. Bhogilal v. Jethal Lal, AIR 1929 Bom 51. See The Transfer of Property Act, 1882, s. 8;Ganesh v. Sham Narain, (1879) 6 Cal 213; Muthu v. Natravarathi, 58 IC 383; Chandrasekaralingam v. Nagabushanam, AIR 1927 Mad 817; Poongavanam v. Subramanya, AIR 1951 Mad 601 [LNIND 1950 MAD 141]. 58. See The Transfer of Property Act, 1882, s. 8. 59. Nathu Mian v. Nand Rani, (1872) 8 Beng LR 508; Dinonath Adhor, (1899) 4 Cal WN 470. 60. Asgar v. Mahomed Medhi Hossein, (1903) ILR 30 Cal 566; Macleod v. Kisan, (1906) ILR 30 Bom 250; Balram v. Ganga Singh, AIR 1926 Oudh 358; Krishna Kumari v. Rajendra, AIR 1927 Oudh 240. 61. Ram Chandra v. Kalyan Singh, AIR 2006 All 184; Faqueer Soonra v. Khuderson, (1870) 2 NWP 251; Fitrat Husain v. Liaqat Ali, AIR 1939 All 291; see, however, Kundan v. Addl District Judge Bulandshahr, AIR 1990 All 121 [LNIND 1990 ALL 106], wherein it was held that non-mention of saplings in the agreement to sell the land would indicate that they were not intended to be sold. 62. Badam v. Ganga, (1897) 29 All 484. 63. Divisional Forest Officer v. Daut, AIR 1968 SC 612 [LNIND 1967 SC 311]. 64. Vishwa Nath v. Ram Raj, AIR 1991 All 193 [LNIND 1990 ALL 107]. 65. Chaladom v. Kakkath Kunhambu, (1902) ILR 25 Mad 669.

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(IN) Poonam Pradhan Saxena : Property Law 66. Raja Anand v. State of Uttar Pradesh, AIR 1967 SC 1081 [LNIND 1966 SC 190]; Bageshwari Charan v. Kumar Kamakya Narian Singh, AIR 1931 PC 30. 67. Girdhari Singh v. Megh Lal Pandey, (1918) ILR 45 Cal 87, wherein it was held that a permanent lease granted by a Bengal zamindar would not imply the grant of mineral rights; see also Ali Quadar v. Jogendra (1912) 16 Cal LJ 7, wherein it was held that a grant of patni taluka transferred mineral rights. See also Satya Niranjan Chakravarti v. Ram Lal Kaviraj, AIR 1925 PC 42; Rajeshwar Prosad v. Bhupendra Naryan, AIR 1927 Cal 956; Bhupendra v. Rajeshwar, AIR 1931 PC 162; Jagat Mohan v. Pratab Udai Nath, AIR 1931 PC 302; Gobinda Narayan v. Sham Lal, AIR 1931 PC 89; HV Low & Co. Ltd. v. Jyoti Prashad Singh Deo, AIR 1931 PC 299. 68. See The Transfer of Property Act, 1882, s. 8. 69. Peru Bipari v. Ronuo, (1884) 11 Cal 164; Purshotama v. Municipal Council, (1891) ILR 14 Mad 467; Queen Empress v. Sheikh Ibrahim, (1890) ILR 13 Mad 518. 70. Arunachellam v. Subramania, (1907) ILR 30 Mad 235. 71. Sheo Nandan v. Zainul, (1915) ILR 42 Cal 849. 72. Commr of Income Tax v. Bhurangya Coal Company, AIR 1959 SC 254; Divisional Forest Officer Sarahan Forset Division of Simla v. Daut, AIR 1968 SC 612 [LNIND 1967 SC 311]; Christine Pais v. K Ugappa Shetty, AIR 1966 Mys 299; MS Boda Narayana Murhty and Sons v. Valluri Venkata Suguna, AIR 1978 AP 257 [LNIND 1977 AP 52]; Ram Dayal v. L Mishri Lal, 1972 All LJ 333; Bhoop Singh v. Sri Ram, AIR 1940 All 427. 73. Krishna Mohan v. Bal Krishna Chaturvedi, AIR 2001 All 334 [LNIND 2001 ALL 624]. 74. Munnalal v. Atmaram, AIR 2008 (NOC) 843 (MP); Kantaben Chandulal Shah v. Gagiben, AIR 2005 Guj 49 [LNIND 2004 GUJ 411]; Bishun Mahato v. Raho Khalifa, AIR 2005 Jhar 85 [LNIND 2004 JHAR 60]. 75. Rajeshwar Prosad v. Bhupender Narayan, AIR 1927 Cal 956; Keshrimal v. Sukan Ram, AIR 1933 Pat 264. 76. Weavers Mills Ltd v. Balkis Ammal, AIR 1969 Mad 462 [LNIND 1967 MAD 164]; Imperial Bank of India v. Bengal National Bank, AIR 1931 Cal 223. See The Transfer of Property Act, 1882, s. 9. 77. Satya Kumar v. Satya Kirpal, (1909) 10 Cal LJ 503. 78. Fowler v. Secretary of State, AIR 1921 Mad 363; Brojo Nath v. Maheshwar, (1918) 28 Cal LJ 220; Gyanessa v. Mobarakanessa, (1898) ILR 25 Cal 210. 79. Ramdas v. Pahlad, AIR 1965 Bom 74 [LNIND 1964 BOM 11]. 80. Madam Pillai v. Badra Kali, AIR 1922 Mad 311 [LNIND 1922 MAD 5]. 81. Serandaya Pillai v. Sankarlingam Pillai, (1959) Mad LJ 502. 82. Gangubai v. Mahagundappa, AIR 2006 (NOC) 142 (Kant). 83. Lal Singh v. Chotey Beti, AIR 1933 All 854. 84. Amteshwar Anand v. Virendra Mohun Singh, AIR 2006 SC 151 [LNIND 2005 SC 812]. 85. Lal Singh v. Chotey Beti, AIR 1933 All 854; Gajraj v. Indarpal, (1918) 49 IC 406. 86. Where the value of property is of R s. 100 or more. See The Transfer of Property Act, 1882, s s. 54 and 118. See also Keshrimull v. Sukan Ram, AIR 1933 Pat 264; Rajeshwar Prosad v. Bhupendra Naryan, AIR 1927 Cal 956. 87. Where the lease is for more than a year or where the rent for more than a year has been taken in advance. See The Transfer of Property Act, 1882, s. 107. 88. Where the amount of loan is more than R s. 100 or more. See The Transfer of Property Act, 1882, s. 59. 89. See The Transfer of Property Act, 1882, s. 123;Hiralal v. Gavrishankar, AIR 1928 Bom 250. 90. It is impossible to give the ownership of property to a person in possession, and at the same time to direct that he is not to have the ordinary rights and incidents of ownership: Re Forder, Forder v. Forder, (1927) 2 Ch 291 311 (CA). See also Re Dugdale, Dugdale v. Dugdale, (1888) 38 Chd 176. 92. Stogdon v. Lee, (1891) 1 QB 661, 670 (CA). As to the validity of partial restraints on alienation, see Re Rosher, Rosher v. Rosher, (1884) 26 Chd 801; Re Elliot, Kelly v. Elliot, (1896) 2 Ch 353. As to the recognition paid by the courts to restraints on alienation valid according to the law of other countries, see Re Fitzgerald, Surman v. Fitzgerald, (1904) 1 Ch 573 (CA). 93. Bhavani Amma Kanakadevi v. CSI Dekshina Kerela Maha Idavaka, AIR 2008 Ker 38 [LNIND 2007 KER 622]. 94. Re Elliot Kelly v. Elliot, (1896) 2 Ch 353; Re Cockerill Mackaness v. Percival, (1929) 2 Ch 131. 1.

Achammal v. Rajamanickam Karthikeyan, AIR 2010 Mad 34 [LNIND 2009 MAD 3158].

1.

Loknath Khound v. Gunaram Kalita, AIR 1986 Gau 52.

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(IN) Poonam Pradhan Saxena : Property Law 2.

See Mahamud Ali Majumdar v. Brikodar Nath, AIR 1960 Assam 178.

3.

Saraju Bala v. Jyotirmoyee, AIR 1931 PC 179; Lalit Mohun v. Chukkun Lal, (1897) ILR 24 Cal 834.

4.

Bhawani Amma Kanakadevi v. C S I Dekshina Kerela Maha Idevaka, AIR 2008 Ker 38 [LNIND 2007 KER 622].

5.

Gomti Singh v. Anari Kaur, AIR 1929 All 492.

6.

Rani Mewa Kuwar v. RRANI Hukas Kuwar, 1 IA 157 PC; AIR 1939 Mad 769 [LNIND 1939 MAD 120].

7.

Venkatachallum v. Kabaamurthy, AIR 1955 Mad 350 [LNIND 1954 MAD 133].

8.

Venkatarammanna v. Brammanna, (1869) 4 Mad 1.

9.

Khunnilal v. Gobinda, (1911) ILR 33 All 356, PC; Kapura v. Madsodan Das, AIR 1934 Lah 168. As aforesaid, s. 10 does not applies to partition of joint Hindu family property as it has repeatedly been held, that partition does not amount to a transfer of property. However, the rule, that after creating an absolute estate in contrast with a limited estate, a restriction imposed on the basic incidents of ownership would be opposed to rules of public policy and general principles, see Prithmi Chand Chandu Mal v. Sundar Das Sital Mal, AIR 1946 Pesh 12; Channabassappa v. Sharkaraiah, 1961 Mys LJ 443; Mohammed Raza v. Abbas Bandi Bibi, AIR 1932 PC 158.

10. AIR 1915 Mad 1191 [LNIND 1915 MAD 158]; see also TV Sangam Ltd v. Shanmugha Sundaram Muddegowda Bakkappa v. Mallikarjuna, (1980) ILR 1 Kant 767. 11. Muniswamy v. K Venkataswamy, AIR 2001 Kant 246 [LNIND 2000 KANT 310]. 12. K Venkatarammanna v. K Brammanna Sastrulu, (1868– 1869) 4 Mad HCR 345. 13. Pritmi Chand v. Sunder Das, AIR 1946 Pesh 12. 14. Took Chand v. Radha Kishan, AIR 1935 Lah 503. 15. Shyamal Ranjan Mukherjee v. Nirmal Ranjan Mukherjee, AIR 2008 (NOC) 568 (All);Nil Madhab v. Narottam Sikdar, (1890) ILR 17 Cal 876; Re West Hope Town Tea Co. Ltd., (1890) ILR 12 All 192; Goluknath v. Mathura, (1893) ILR 20 Cal 273. 16. Visharam v. Gangaram, AIR 1935 Sind 235; Venkatachallum v. Kabaamurthy, AIR 1955 Mad 350 [LNIND 1954 MAD 133]. 17. Raja Chandra v. Gobind Nath, (1873) 11 Beng LR 86, PC; Pudmanund Singh v. Hayes, (1901) ILR 28 Cal 720 PC; Bhairon v. Parmeshwari, (1885) ILR 7 All 510; Maharam v. Ajudha, (1886) ILR 8 All 452; Anantha v. Nagamuthir, (1882) ILR 4 Mad 200; Amiruddaula v. Nateri Srinivasa Charlu, (1871) 6 Mad HCR 356; Kuldip v. Khetrani, (1898) ILR 25 Cal 869; Muthu Kumara Chetty v. Anthony Udayar, AIR 1915 Mad 296 [LNIND 1914 MAD 30]. 18. Ratanlal v. Ramanuj Das, AIR 1944 Nag 187. 19. Mohomed Raza v. Abbas Bandi Bibi, AIR 1932 PC 158. 20. Chhamaru Sahu v. Sona Kuer, (1911) 14 Cal LJ 303. 21. Basanowda v. Irgodatti, AIR 1923 Bom 276. 22. Diwali v. Apaji, (1886) ILR 10 Bom 342. 23. Bradley v. Peixoto, (1797) 3 Ves 324 ; Re Jones Will, (1870) 23 LT 211; Metcalfe v. Metcalfe (1889) 43 Chd 633, 639 (CA); Re Bourkes Trusts, (1891) 27 LR IR 573 ; Re Brown, District Bank Ltd. v. Brown, (1954) Ch 39, (1953) 2 All ER 1342. 24. Corbett v. Corbett, (1888) 14 PD 7 (CA); Re Hollis Hospital Trustees and Hagues Contract, (1899) 2 Ch 540; Re Forder, Forder v. Forder, (1927) 2 Ch 291, 311 (CA). See Lampets Case(1612) 10 Co Rep 46 b, 48b. 25. Re Rosher, Rosher v. Rosher, (1884) 26 Chd 801; Re Dugdale, Dugdale v. Dugdale, (1888) 38 Chd 176; Corbett v. Corbett, (1888) 14 PD 7 (CA); Re Cockerill, Mackaness v. Percival, (1929) 2 Ch 131; Re Brown, District Bank Ltd. v. Brown, (1954) Ch 39, (1953) 2 All ER 1342. 26. Churchill v. Marks, (1844) 1 Coll 441 ; Re Payne(1858) 25 Beav 556 ; Re Porter, Coulson v. Capper, (1892) 3 Ch 481; Re Smith, Smith v. Smith, (1916) 1 Ch 369; Re Forder, Forder v. Forder, (1927) 2 Ch 291 (CA). 27. Co. Litt 223a; Re Macleay, (1875) LR 20 Eq 186; Re Rosher, Rosher v. Rosher, (1884) 26 Chd 801. 28. Re Wolstenholme, Marshall v. Aizlewood, (1881) 43 LT 752. See further Bird v. Johnson, (1854) 18 Jur 976; Rochford v. Hackman, (1852) 9 Hare 475; Corbett v. Corbett, (1888) 14 PD 7 (CA). 29. Hunt-Foulston v. Furber, (1876) 3 Chd 285; Re Mabbett, Pitman v. Holborrow, (1891) 1 Ch 707; see also Re Dempster, Borthwick v. Lovell, (1915) 1 Ch 795. 30. Brandon v. Robinson, (1811) 18 Ves 429; Graves v. Dolphin, (1826) 1 Sim 66; Snowdon v. Dales, (1834) 6 Sim 524; Corbett v. Corbett, (1888) 14 PD 7 (CA); Re Fitzgerald, Surman v. Fitzgerald, (1904) 1 Ch 573. 31. Re Dugdale, Dugdale v. Dugdale, (1888) 38 Chd 176; Re Mabbett, Pitman v. Holborrow, (1891) 1 Ch 707; Re Ross, Ashton v. Ross, (1900) 1 Ch 162.

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(IN) Poonam Pradhan Saxena : Property Law 32. Re Fitzgerald, Surman v. Fitzgerald, (1904) 1 Ch 573, 593 (CA). 33. Gomti Singh v. Anari Kuar, AIR 1929 All 492. 34. Mudara v. Muthu Hengsu, AIR 1935 Mad 33 [LNIND 1934 MAD 68]; TV Sangham ltd v. Shanmugha Sundaram, AIR 1939 Mad 709 [LNIND 1938 MAD 182]. 35. Venkatarammanna v. Brammanna, (1869) 4 Mad 1. 36. Saraju Bala v. Jyotirmoyee, AIR 1931 PC 179; Lalit Mohan v. Chukkun Lal, 24 IA 76. 37. Re Kosher v. Kosher, (1884) 20 Chd 801 partial restraint.

. See also Ratan lal v. Rammijadas, AIR 1944 Nag 187, wherein it was held to be a

38. Elliot v. Elliot, (1896) 2 Ch 353. 39. Brahma Nand v. Roshani Devi, AIR 1989 HP 21. 40. Kosher v. Kosher, (1884) 20 Chd 801

.

41. Ramaswamy v. Wilson Machine Works, AIR 1994 NOC 222 (Mad); Giani Ram v. Balmakand, AIR 1956 Punj 255; Brij Devi v. Shiva Nandan Prasad, AIR 1939 All 221. 42. Mata Prasah v. Nageshar Sahai, AIR 1925 PC 272. 43. Anantha v. Nagamuthu, (1882) ILR 4 Mad 200; Rukminilal v. Lakshmibai, (1920) ILR 44 Bom 304; Saraju Bala v. Jyotirmoyee, AIR 1931 PC 179. 44. Thomas v. A A Henry, AIR 2008 (NOC) 1414 (Ker). 45. Attwater v. Attwater, (1853) 18 Beav 330. 46. Manohar Shivram Swami v. Mahadeo Guruling Swami, AIR 1988 Bom 116 [LNIND 1987 BOM 434]; Mohomed Raza v. Abbas Bandi Bibi, AIR 1932 PC 158. 47. Aulad Ali v. Ali Athar, AIR 1927 All 170. 48. Zoroastrian Co-operative Housing Society Ltd. v. Dist Registrar, Co-operative Societies, (2005) 5 SCC 632 [LNIND 2005 SC 384] : AIR 2005 SC 2306 [LNIND 2005 SC 384]. 49. Shiba Prosad v. Lekhraj, AIR 1945 PC 162. 50. Bhola Ram Chaudhary v. State of Bihar, AIR 1990 Pat 20. 51. Devi Dayal v. Ghasita, AIR 1929 All 607; see also Gayasi Ram v. Shahabuddin, AIR 1935 All 493, wherein it was held that if this condition was part of the sale it would have been invalid as in restraint on alienation; see also Dol Singh v. Khub Chand, AIR 1921 All 97, wherein the vendee had executed a separate agreement that he would not transfer the property purchased to any one except the vendor and it was held that the agreement was void as it amounted to restraint on alienation. 52. Allibhai v. Dada, AIR 1931 Rang 578. 53. Ma Yin Hu v. Ma Chit May, AIR 1929 Rang 226. 54. See The Transfer of Property Act, 1882, s. 10. 55. Raja Jagat Ranvir v. Bagriden, AIR 1973 All 1 [LNIND 1972 SC 411]. 56. Sardakripa v. Bepin Chandra, AIR 1923 Cal 679; Kumar Chandra v. Narendra Nath, AIR 1930 Cal 357; Nabjan Sardar v. Neburali Molla, AIR 1933 Cal 506. 57. Rama Rao v. Thimappa, AIR 1925 Mad 732 [LNIND 1924 MAD 328]. 58. Bhairo Singh v. Ambika Baksha, (1942) Cal WN 374. 59. Har Dayal v. Lal Nauratan, AIR 1934 All 358. 60. Madhusudan v. Midnapore Zemindary Co., (1918) ILR 45 Cal 940. 61. Dinesh Chhapolia v. State of Orissa, AIR 2008 (NOC) 844 (Ori). 62. Montefiore v. Behrens, (1865) LR 1 Eq 171; Oldham v. Oldham, (1867) LR 3 Eq 404; Hatton v. May, (1876) 3 Chd 148; Metcalfe v. Metcalfe, (1891) 3 Ch 1 (CA). 63. Mackintosh v. Pogose, (1895) 1 Ch 505, 511–514; Re Brewers Settlement, Morton v. Blackmore, (1896) 2 Ch 503. 64. (1889) 26 Chd 801. 65. AIR 1935 All 493. 66. AIR 1988 Bom 116 [LNIND 1987 BOM 434].

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(IN) Poonam Pradhan Saxena : Property Law 67. (2005) 5 SCC 632 [LNIND 2005 SC 384]. 68. AIR 2001 Kant 246 [LNIND 2000 KANT 310]. 69. AIR 1972 Cal 310 [LNIND 1972 CAL 77]. 70. AIR 1987 Cal 368 [LNIND 1986 CAL 191]. 71. Indu Kakkar v. Haryana State Industrial Development Corpn. Ltd., AIR 1999 SC 296 [LNIND 1998 SC 1066]. 72. Jagdeo Baksh v. Jwala Prasad, 15 IC 244. 73. Kateswar Estate v. Muhammad Amir, 46 IC 73. 74. Sooramma v. Venkataraman, AIR 1952 Mad 116. 75. Bejoy Krishna v. Ishwar Damodar, AIR 1954 Cal 400 [LNIND 1954 CAL 10]. 76. Mahram Das v. Ajudhia, (1886) ILR 8 All 452; Official Receiver v. Samudravijayan, AIR 1939 Mad 509 [LNIND 1938 MAD 305]. 77. Manjusha Devi v. Sunil Chandra, AIR 1972 Cal 310 [LNIND 1972 CAL 77]. 78. N Maneklal v. Bai Savita, CA No 959 of 1963 decided on Oct 1(SC) (unreported). 79. State of Rajasthan v. Jeo Raj, AIR 1990 Raj 90; Lilawati v. Ramdhari, AIR 1971 P&H 87; Shiv Nath v. Lachhmi Narain, AIR 1938 Oudh 17. 80. Narayana v. Kannan, (1884) ILR 7 Mad 315. 81. Raikishori v. Debendranath, (1888) ILR 15 Cal 409. 82. Umrao Singh v. Baldeo Singh, AIR 1933 Lah 201. 83. Rup Singh v. Bhabhuti, (1920) ILR 42 All 30; see also Ramalinga v. Virupakshi, (1883) 7 Bom 538, wherein it was held that such an agreement would not bind even the parties themselves. 84. Chander Shekhar v. Kundan Lal, (1909) ILR 31 All 3. 85. Jafri Begum v. Syed Ali, (1901) ILR 23 All 383. 86. Panna Lal Hazra v. Fulmoni Hazra, AIR 1987 Cal 368 [LNIND 1986 CAL 191]. 87. See The Transfer of Property Act, 1882, s. 11. 88. Princy v. Jose, AIR 2010 Ker 1 [LNIND 2009 KER 225]. 89. Kumar Chandra v. Narendra Nath, AIR 1930 Cal 357. 90. Moti Lal Doga v. Iswar Radha Damodar, AIR 1936 Cal 727. 91. Princy v. Jose, AIR 2010 Ker 1 [LNIND 2009 KER 225]. 92. Ibid. 93. Rogers v. Hosegood, (1900) 2 Ch 288

.

1.

See The Transfer of Property Act, 1882, s. 11.

2.

Leela v. Ambujakshy, AIR 1989 Ker 308 [LNIND 1989 KER 169].

3.

Nand Gopal v. Batuk Prasad Gupta, AIR 1932 All 78.

4.

BD Bamable v. Michale K Lal, AIR 1951 Ajmer 75.

5.

(1885) 29 Chd 750.

6.

(1843–60) All ER 9.

7.

Shiba Prosad v. Lekhraj, AIR 1945 Pat 162.

8.

See The Transfer of Property Act, 1882, s. 12.

9.

Vyankatraya v. Shivrambhat, (1883) ILR 7 Bom 256.

10. Smith v. Gronow, (1891) 2 QB 394. 11. A life holder enjoys the property for his life only. He cannot transfer it to anyone. On his death, the property goes back to the settler or to anyone else, that the settler may direct. 12. See The Transfer of Property Act, 1882, s. 20. 13. JV Satyanarayana v. Pyboyina Manikyan, AIR 1983 AP 139 [LNIND 1982 AP 274].

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(IN) Poonam Pradhan Saxena : Property Law 14. Girjish Dutt v. Data Din, AIR 1934 Oudh 35; see also Putibai v. Sorabji Naoroji, AIR 1923 PC 122—a case decided under the s. 113 which is identically worded as the Transfer of Property Act, 1882, s. 13. 15. Ardeshir v. Dadabhoy, AIR 1945 Bom 395. 16. Sopher v. Administrator General of Bengal, AIR 1944 PC 67; see also Dadabhoy Madon v. Tehmina, (1947) 49 Bom LR 882, wherein it was held that this principle is inapplicable to trusts of a settlement inter vivos; see also Issac Nissim v. Official Trustee, AIR 1957 Cal 118 [LNIND 1956 CAL 81]. 17. AIR 1934 Oudh 35. 18. Devaru Ganapathi Bhai v. Prabhakar Ganapathi Bhai, (2004) 2 SCC 504. 19. AIR 1983 AP 139 [LNIND 1982 AP 274]. 20. The Hindu Disposition of Property Act, 1916: the Madras Act of 1914. Both these Acts were amended by the Act of 1929. 21. See the Indian Succession Act, 1925, s s. 113, 114, 115 and 116. 22. The Indian Majority Act, 1875 has recently been amended and the age of majority is now the attainment of eighteen years only. 23. Soundara Rajan v. Natarajan, AIR 1925 Pat 244. 24. Anand Rao Vinayak v. Administrator-General of Bombay, (1896) ILR 20 Bom 450. 25. AIR 1926 All 283. 26. Ram Newaz v. Nankoo, AIR 1926 All 283; Nabin Chandra Sarma v. Rajani Chandra Chakrabarti, AIR 1921 Cal 162; Kala Chand Mukherjee v. Jatindra Mohan Banerjee, AIR 1929 Cal 263; Maharaj Rajaramji v. Ramnath Upasni, AIR 1927 Pat 412; Pan Kuer v. Ram Narain Chowdhary, AIR 1929 Pat 353. 27. Anandrao Vinayak v. Administrator General of Bombay, (1896) ILR 20 Bom 450. 28. Kashinath v. Chimnaji, (1906) ILR 30 Bom 477. 29. Veerattalingam v. Ramesh, (1991) 1 SCC 489. 30. United India Insurance Co. Ltd. v. Katukari Raghavareddy, AIR 1989 AP 33 [LNIND 1986 AP 333]. 31. Sitesh Kishor Pandey v. Kishore Pandey, AIR 1982 Pat 339. 32. Sookhmoy Chunder v. Monoharri Dassi, (1885) ILR 11 Cal 684. 33. Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, AIR 1998 SC 2986 [LNIND 1998 SC 690]. 34. Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173]; Nafar Chandra v. Kailash, AIR 1921 Cal 328; see also Maharaj Bahadur v. Balchand, AIR 1922 PC 165, wherein it was held that a covenant of pre-emption is hit by rule against perpetuity. 35. Walsh v. Secretary of State for India, (1863) 10 HLS 367; South Eastern Railway Company v. Associated Portland Cement Manufacturers Ltd., (1910–1) Ch 12. 36. Matlub Hasan v. Kalawati, AIR 1933 All 934; K Appu v. Mary, AIR 1965 Ker 27 [LNIND 1964 KER 86]. 37. Padmanabha v. Sitarama, AIR 1928 Mad 28 [LNIND 1927 MAD 262]. 38. Wahajuddin v. Ali Ahmad, AIR 1934 All 983. 39. Nafar Chandra v. Kailash, AIR 1921 Cal 328. 40. R. Kempraj v. Burton Son & Co., AIR 1970 SC 1872 [LNIND 1969 SC 302]. 41. Rama Rao v. Thimmappa, AIR 1925 Mad 732 [LNIND 1924 MAD 328]. 42. Ali Hossain Mian v. Raj Kumar Haldar, AIR 1943 Cal 417; Aulad Ali v. Ali Athar, AIR 1927 All 170; Chinna Manuswami Nayudu v. Sagalaguna, AIR 1926 Mad 699 [LNIND 1925 MAD 93]. 43. AIR 1967 SC 744 [LNIND 1966 SC 173]. 44. AIR 1970 SC 1872 [LNIND 1969 SC 302]. 45. (1991) 1 SCC 489. 46. Raj Bajrang Bahadur Singh v. Thakurian Bakhraj Kaur, AIR 1953 SC 7 [LNIND 1952 SC 66]. 47. See The Transfer of Property Act, 1882, s. 16. 48. Girjish Dutt v. Data Din, AIR 1934 Oudh 35. 49. Re Davy (1915) 1 Ch 837.

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(IN) Poonam Pradhan Saxena : Property Law 50. Kumar Tarakeswar Roy v. Kumar Shoshi Shikhareswar, (1883) ILR 9 Cal 952. 51. Kayastha Pathshala v. Musst Bhagwati Devi, AIR 1937 PC 4. 52. AIR 1953 SC 7 [LNIND 1952 SC 66]. 53. Javerbai v. Kablibai, (1891) 16 Bom 492, for a similar case; see also Kumar Tarakeswar Roy v. Kumar Shoshi Shikhareswar, (1883) ILR 9 Cal 952. 54. Re Errington, Errington–Turbutt v. Errington, (1897) 76 LT 716. 55. See The Transfer of Property Act, 1882, s. 17, Ex. II. 56. Amrito Lall v. Surnomoye, (1897) ILR 24 Cal 589. 57. Nafar Chandra v. Ratan, (1910) 15 Cal WN 66. 58. Gosavi Shivga v. Rivett-Carnac, (1889) ILR 13 Bom 463. 59. Krishnaramani v. Ananda Krisha, (1872) 4 Beng LR 231. 60. Amrito Lall v. Surnomoyee, (1898) 25 Cal 662; Ramlalsen v. Bidhumukhi, (1920) ILR 47 Cal 76. 61. Nafar Chandra v. Ratan, (1910) 15 Cal WN 66. 62. M Kesva Gounder v. D.C. Rajan, AIR 1976 Mad 102 [LNIND 1974 MAD 226]. 63. Krishnaramani v. Ananda Krishna, (1872) 4 Bengal LR 231 OC. 64. Gosavi Shivgar v. Rivett Carnac, (1889) ILR 13 Bom 463. 65. RMS Firm v. Muthuswami Odayar, AIR 1941 Mad 188 [LNIND 1940 MAD 33]. 66. Khusal Chand v. Mahadevgiri, (1875) 12 Bom HC 214. 67. Bhupati Nath v. Ramlal, (1909) 37 Cal 128. 68. Prafulla v. Jogendra Nath, (1905) 9 Cal WN 528. 69. Mutu Ramanandan v. Vavaa, (1914) 40 Mad 116 ; see also Fazlul Rabbi v. State of West Bengal, AIR 1965 SC 1722 [LNIND 1965 SC 72]. 70. Runchordas v. Parvatibai, (1899) ILR 23 Bom 725. 71. Venkatanarasimha v. Subba Rao, AIR 1923 Mad 376. 72. Jamsed v. Soonabai, (1911) 33 Bom 122. 73. Controller of Estate Duty v. Usha Kumar, (1980) 1 SCC 315 [LNIND 1979 SC 466]. 74. (1980) 1 SCC 315 [LNIND 1979 SC 466]. 75. Broughton v. Mercer, (1875) 14 Beng LR 422. 76. AIR 1976 Mad 102 [LNIND 1974 MAD 226]. 77. M Keshva Gounder v. DC Rajan, AIR 1976 Mad 102 [LNIND 1974 MAD 226]. 78. RMS Firm v. Muthuswami, AIR 1941 Mad 188 [LNIND 1940 MAD 33]. 79. Profulla v. Jogendra Nath, (1905) 9 Cal WN 528. 80. Manorama v. Kalicharan, (1903) 31 Cal 166. 81. Fanindra v. Administrator General, (1901) 6 Cal WN 321. 82. Jamnabai v. Khimji, (1890) ILR 14 Bom 1. 83. Re Nottage Jones v. Palmer, (1895–9) All ER 1203. 84. Shashi Kantha v. Promode Chandra, AIR 1932 Cal 600. See The Transfer of Property Act, 1882, s. 21. 85. China Reddy v. Keshanna, AIR 1954 Hyd 185. 86. U Zoe v. Ma Mya May, AIR 1930 Rang 184. 87. AIR 1996 SC 2260 : (1996) 5 SCC 201. 88. Chebrolu Thayaramma v. South India Educational Trust, AIR 2008 (NOC) 481 (Mad); Devaru Ganapathi Bhai v. Prabhakar Ganapathi Bhai, (2004) 2 SCC 504; Lachman v. Baldeo, (1919) 21 OC 312. 89. Sew Dayal v. Official Trustee, AIR 1931 Cal 651.

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(IN) Poonam Pradhan Saxena : Property Law 90. Hurris v. Brown, (1901) ILR 28 Cal 621. 91. Tarachurn Chatterji v. Suresh Chunder, (1890) ILR 17 Cal 122.

End of Document

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 2

he had a disposable vested interest in the property.1 A vested interest is not defeated by the death of a transferee before he obtains possession2 or by creation of a prior interest.3 Thus, where, life interest is created in favour of one4 or two persons,5 and then the property is to go absolutely to the beneficiary, the beneficiary takes a vested interest. An unequivocal and irrevocable settlement conferring enjoyment rights over the property in present and each getting a specific share in it upon the death of the settlor would create a vested interest in favour of each of the beneficiary.6 Where the property was settled in trust for the beneficiary for a specific sum of money and the rest of the money was to be utilised for repayment of the debts of the mortgagor, and after the death of the beneficiary the property was to go absolutely to the grantee, the grantee takes a vested interest in the beneficiary’s lifetime.7 A trust created for the repayment of the debt of the settlor and giving an absolute interest to the sons after such repayment would create a vested interest in favour of the sons, capable of being disposed of.8 VESTED INTEREST LIABLE TO BE DIVESTED SUBSEQUENTLY Vested interest may come to an end subsequently, if it is subject to a condition, which is to be performed or would happen subsequent to the transfer. These are distinct from contingent interests as in contingent transfers, whether the transfer would take place, will depend on the happening of an uncertain event. Till that event happens there is no transfer. But in the case of subsequent divesting of vested interests, the transfers take place first it is complete, but at a later time, the transferee can be divested of the interest created in his favour. For example, a gift to B, if he gets married before attaining the age of 35 years is a contingent transfer, but a gift to B with a condition that it will be forfeited if he remained unmarried till the age of 35 years creates a vested interest in his favour and he would be divested of this interest if he remains unmarried beyond the age of 35 years. Where, under the terms of a compromise, a person took an interest subject to a prior interest and also a condition that he must survive the prior grantee failing which his heirs would take the property according to the rule of primogeniture, it was held that he took a vested interest liable to be divested if he did not survive.9 DIFFERENCE BETWEEN VESTED AND CONTINGENT INTERESTS The primary differences between vested and contingent interests are as under. (i) In a vested interest, there is an immediate right of present enjoyment or a present right for future enjoyment and in a contingent interest, the right of enjoyment is made dependent upon some event or condition, which may or may not happen. It is only on the happening of that event or condition that the interest becomes vested.

(IN) Poonam Pradhan Saxena : Property Law

(ii) Vested interest is heritable and transferable even if the enjoyment is postponed, but contingent interest is transferable, but not heritable.10 Where contingent interest is transferred, the transferee simply stands in the shoes of the transferor and would be able to take the contingency or condition specified in the original deed. (iii)Vested interest can be attached by a decree of the court, i.e., a court decree can be executed against it. However, a contingent interest is not attachable11 because of the uncertainty involved. A contingent interest is distinguishable from a mere spes successionis.12 SUBSTANCE TO BE PREFERRED TO FORM In deciding whether a document creates a vested or a contingent interest the substance of the document is to be taken and assessed as a whole13. The Apex Court in Namburi Basava Subrahmanyam v. Alapati Hymavathi, 14 observed: The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole.

IMPORTANT CASES RELATING TO CONTINGENT INTEREST In Rajesh Kanta Roy v. Shanti Debi,15 a trust was created by A for the payment of debts and the surplus was to be used for the benefit of A and his two sons. The trust was to come to an end with the total payment of debts and the death of the settlor and then the property was to vest in the two sons, or to their legal heirs as the case may be. The trust deed also provided that if any of the sons died before the trust came to an end, his heirs would represent him and were to be entitled to the benefits under the trust. The issue before the court was regarding the nature of interest created in favour of the sons, whether it was vested or contingent.

Figure (VI) Here the widow of another of A’s sons’, (who had died before the creation of the trust) wanted to execute the decree passed in her favour, against the interest that the sons had in the trust property. The decree could be executed against these interests only if the sons had a vested interest in it and not a contingent interest, as contingent interests are not attachable. The court held here that the interest of the sons was a vested interest, as whether the sons took a vested or a contingent interest Page 2 of 151

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would depend upon the intention of the settlor, which was to be gathered from the language of the trust. The emphasis of the settlor in this case was not as much on the repayment of the debts as it was on the benefits coming under it to the sons and his heirs. The court noted that the interest which either of these was to get in the properties allotted to each was expressed to be one which each would get after the trust comes to an end. The trust was to come to an end on the happening of two events viz.—(i) the discharge of all debts specified in the schedules and (ii) the death of the settlor himself. Out of these two events that were specified, death of the settlor was a certain event; but the same could not be said about the discharge of debts. The court held: it appears to us reasonable clear that the intention of the settlor is that as regards the interest of the son with respect to all the properties comprised therein, is vested in title but restricted in enjoyment so long as the settlor is alive and the debts are not discharged. The court held that the interest of the sons was a vested interest and therefore could be attached by the court. In Kokilambal v. N Raman,16A settled properties that she had inherited from her husband, in favour of her husband’s sister’s son B. A was childless and wanted to adopt him. According to the terms of the settlement, the property was to be enjoyed by her and B during her lifetime, and B was authorised to collect rents of the house, carry necessary repairs and also pay tax of the same to the relevant authorities. The remaining amount was to be divided between her and B jointly. She relinquished her individual right to alienate the property but the deed provided that both of them had the right to alienate the same jointly. B died during A’s lifetime, whereupon A revoked this settlement and executed a fresh settlement in favour of her brother’s daughter D, and her husband DH. Meanwhile, B’s brother as his legal heir instituted a suit claiming the property settled on B on the ground that under the settlement, B had taken a vested interest in the property, and therefore it devolved on his legal heir, i.e., on him. Further, as A had, by herself, created a life interest in the settled property, she had no right to revoke the settlement and execute a fresh one. The issue before the apex court was whether the nature of interest created in B’s favour was vested or contingent. If it was a vested interest then upon his death, it would be inherited by his brother and A would have no right to either revoke the earlier settlement or to execute a fresh one. But if the interest was contingent, and was to vest in him only after the death of A, A retained the right to revoke the settlement and execute a fresh one. Both the trial court as well as the high court held that a vested right was created in favour of B, and therefore A could not, subsequently revoke the settlement and execute a fresh one. The Supreme Court, however, held that as A had retained some rights in the property herself, and had not completely relinquished all her rights over it, it meant that no absolute ownership was created in favour of B during her life. The same was therefore, not inheritable. The court thus dismissed the claim of B’s brother. WHEN UNBORN PERSON ACQUIRES VESTED INTEREST ON TRANSFER FOR HIS BENEFIT

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Section 20. When unborn person acquires vested interest on transfer for his benefit.— Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth. This section has to be read along with s. 13. It postulates that where an interest is created for the benefit of an unborn child, the moment the child is born, he takes a vested interest in it but only if a contrary intention does not appear from the language of the transfer. It signifies that the transferor is competent to specify the time of the vesting. In accordance with s. 14, the time of vesting can be only between the time of birth of the child and till he attains 18 years. If it is beyond 18 years, the transfer would be void as violative of s. 14. With respect to its enjoyment of the property, a child, on birth, can enjoy the property through its parents and guardians but vesting of property would take place either at the time of the birth or at any time subsequent to it, but, before the attainment of eighteen years. The term ‘if a contrary intention appears’ means, therefore, that the granter can specify the time of vesting,17 as the transfer can be effected in the future.18 Unborn children who are beneficiaries under a trust can claim vested interest only after the death of the life estate holder.19

TRANSFER TO MEMBERS OF A CLASS WHO ATTAIN A PARTICULAR AGE

Section 22. Transfer to members of a class who attain a particular age.— Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.

TRANSFER CONTINGENT ON HAPPENING OF SPECIFIED UNCERTAIN EVENT

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Section 23. Transfer contingent on happening of specified uncertain event.— Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist. If in the same transfer, a prior interest is followed by a subsequent contingent interest, the contingent interest would not take effect unless the contingency happens. However, if the prior interest comes to an end and by that time the contingency does not happen, the subsequent interest also fails because the vesting of the property cannot be kept in abeyance. In between the two, i.e., the determination of the prior transfer and the happening of the contingency, there should not be any gap. For instance, A makes a gift to B and after him to C, if C attains the age of 15 years on the date of B’s death. The transfer to B takes place, but the one in favour of C is a contingent transfer and is dependent upon C attaining the age of 15 years on the day of B’s death. If on the day B dies, C is two years old, then there would be a gap of 13 years in between the first transfer coming to an end and the second to take place. During this period of 13 years, the vesting of the property would be in suspense, and therefore, the second transfer would fail. Similarly, where a testator who had a son, made a bequest and left everything in favour of unborn grandsons, who might be born within ten years from the date of his death, the court held the disposition as void; as between the death of the testator and the birth of such grandsons, there could be a gap of ten years. During this time the vesting of the property again would be in a state of suspense. Thus, this interval of ten years after the termination of the last interest and the birth of the beneficiaries would make the disposition void.20 This section corresponds to s. 124 of the Indian Succession Act, 1925, which provides as follows:

Section 124. Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence.— Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.

Illustrations

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(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect. (ii) A legacy is bequeathed to A and in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect. (iii)A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains the age of 18. The legacy to B does not take effect. (iv)A legacy is bequeathed to A for life, and, after his death to B, and, “in case of B’s death without children”, to C. The words “in case of B’s death without children” are to be understood as meaning in case B dies without children during the lifetime of A. (v) A legacy is bequeathed to A for life, and, after his death to B, and, “in case of B’s death” to C. The words “in case of B’s death” are to be considered as meaning “in case B dies in the lifetime of A”. In a case before the Privy Council, a testator made a bequest under which he gave his property to both of his sons but with a condition that if any of the sons died without leaving a male issue, his interest would be taken by the surviving son. One of the sons died after two years of the death of the testator. The court held that even though the gift over was a contingent one, contingent upon the death of the son without a male issue, yet it was valid.21 Transfer to Such of Certain Persons as Survive at Some Period not Specified

Section 24. Transfer to such of certain persons as survive at some period not specified.— Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.

Illustration A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the life of B. D survives B. At B’s death the property passes to D. This section corresponds to s. 125 of the Indian Succession Act, 1925, and incorporates a rule of construction. Under the Indian Succession Act, 1925, unless a contrary intention appears

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from a testament, the period of survivorship is the time of payment or distribution

Section 125. Bequest to such of certain persons as shall be surviving at some period not specified.— Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will.

Illustrations (i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B. (ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or to the survivor of them. B dies during the life of A; C survives A. At A’s death the legacy goes to C. (iii)Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B. (iv)Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either of them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C. GENERAL PRINCIPLE OF CONDITIONAL TRANSFERS The transferor, as the owner of the property, can transfer it in accordance with his wishes and conditions. It is up to the transferee to either accept the transfer, or to reject it, as ordinarily no transfer can be imposed on the transferee; transfer of property primarily being a contract. However, in certain cases, even if the transferee accepts the transfer saddled with conditions, he is entitled to ignore these conditions later without affecting the validity of the transfer as is the case under ss. 10, 11 and 12. This is because sometimes, the law offers him a way out. However, by and large, if the conditions are not against the law, the transferee is bound to follow them and if he refuses or fails to perform them, the transfer in itself fails to take effect, as it becomes void. Where the transferor imposes conditions that are either impossible to perform, or illegal or opposed to public policy, these void conditions make the transfer in itself Page 7 of 151

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void. These conditions can be of two types, conditions precedent, i.e., they have to be observed first and then only the transfer can take place, and conditions subsequent, i.e., the transfer takes place first and the conditions have to be observed by the transferee at the later stage and if he does not comply with the conditions, then the transfer becomes void. Section 25 deals with conditions that are void. Conditional Transfer

Section 25. Conditional transfer.— An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.

Illustrations (a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void. (b) A gives R s. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void. (c) A transfers R s. 500 to B on condition that she shall murder C. The transfer is void. (d) A transfers R s. 500 to his niece C, if she will desert her husband. The transfer is void. VOID CONDITIONS Section 25 refers to six categories of conditions and terms them as void conditions. These conditions can be described as follows: (i) conditions impossible to perform; (ii) conditions forbidden by law; (iii)conditions if permitted would defeat the provisions of any law; (iv)fraudulent conditions; (v) conditions involving or implying injury to person and property of another; (vi)conditions that are regarded as immoral or opposed to public policy by the court.

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What has to be seen here, is that if these conditions are conditions precedent, not only are the conditions void, they make the transfer also void. However, if the condition is a condition subsequent, the condition is void but the transfer may continue to be valid, i.e., a subsequent void condition cannot affect the validity of the transfer, but a void condition precedent renders the transfer itself void. For example, excavation of a tank when the testator already did it during his lifetime is an impossible condition to perform.22 A gift to which an immoral condition is attached is a good gift but the condition is void,23 but transfer in consideration of future immoral relations is void.24 Where a person advanced money to enable a woman to divorce her husband and marry him later, and then sued her for return of money as she failed to do so, it was held that the agreement was against public policy and void.25 Similarly, a gift to a woman on the condition that she stays apart from her husband, would be opposed to public policy and void.26 Sections 126 and 127 of the Indian Succession Act, 1925, deal with bequests upon impossible, immoral and illegal conditions and render them void.

Section 126. Bequest upon impossible condition.— A bequest upon an impossible condition is void.

Illustrations (i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void. (ii) A bequeaths 500 rupees to B on condition that he shall marry A’s daughter. A’s daughter was dead at the date of the will. The bequest is void.

Section 127. Bequest upon illegal or immoral condition.— A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.

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Illustrations (i) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void. (ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void.

Section 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.

Illustrations (a) A transfers R s. 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 R s. 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. Where the transfer is subject to a condition precedent, this condition has to be fulfilled first; and then only can the transfer take place. Till it is complied with, the transfer cannot take place in law. Early vesting of property is always favoured and recommended, and therefore, in keeping with this rule, the transfer would take place if the conditions that the transferor/testator has laid down for the transferee to comply with are substantially complied with. Illustration (a) to s. 26 makes it clear that if the condition becomes impossible to perform, a substantial compliance will make the transfer possible. If E dies before B could seek his consent, getting his consent becomes impossible due to an event for which the transferee cannot be held responsible. Therefore, if E marries with the consent of C and D, the condition is substantially complied with. It is done primarily so that the transfer is not defeated in its entirety if facts and circumstances change later to the execution of a transfer and make part of the compliance difficult. Thus, whatever is possible is permissible. However this does not mean that the transferee, on his own, can deviate and partly fulfil of the condition when its complete fulfilment is possible. Transfer of property as aforesaid, is primarily a contract and if Page 10 of 151

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the transferee had agreed to abide by some conditions, he has to comply with them. If the conditions are clearly spelt out in the document and their compliance is also possible, then for the vesting of the property, the transferee has to fulfil these conditions. In the same illustration, if E is living and if B marries without taking his consent, the transfer would not be validly effected even if the consent of both C and D is obtained.

Section 128. Fulfilment of condition precedent to vesting of legacy.— Where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.

Illustrations (i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B, C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition. (ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled the condition. (iii)A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition. (iv)A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the unconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent. A marries E. A has fulfilled the condition. (v) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries without the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition.

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(vi)A makes his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A’s executors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect. (vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the condition, and is not entitled to receive the legacy. Illustration (i) shows that for the fulfilment of the condition, no specific or formal method is necessary. Where the conduct is apparent and the intention is clear, then whichever method is adopted by either the transferee or the persons mentioned in the transfer deed, the compliance would be valid. Seeking consent here, can be in writing, by personal information or presence, or approval conveyed through a specific method. Illustration (ii) is identical to illustration (b) under s. 26 of the TP Act. Illustration (iii) shows that the transferor cannot partly fulfil the conditions, where complete fulfilment is possible in nature of things. If he has to take the consent of three persons, and all are alive, taking consent of two out of three could be literally called a partial compliance, but as the condition can be fulfilled by him in its entirety, according to this section it would be concluded that he has not fulfilled the condition. Substantial compliance will be recognised as conferring a benefit on him only when a complete fulfilment is impossible to perform. Similarly, illustration (v) shows that where the time is stipulated for the compliance with the condition, it must be so fulfilled within the specified time. If the marriage has to be performed with the prior approval, the condition is not complied with by the subsequent approval. Illustration (vii) clarifies that a person would not be entitled to the legacy, even in accordance with the conditions laid down by the testator he has to comply with the condition with in a specified time, if he performs the condition within a reasonable time period but not within the stipulated time period. If the condition is complied with by the beneficiary in accordance with the terms of the legacy, a subsequent act of the third party would not make any difference to his compliance and he would be entitled to the legacy. For example, in illustration (iv), if once A obtains the consent of the persons that have been mentioned in the Will, and subsequent to their approval, they withdraw their consent, this act would be of no consequence. It would not adversely affect A’s compliance with the terms of the Will. If at all a subsequent act can affect the compliance, it can be of the testator himself. For instance, in illustration (vi), it is the testator himself, who expresses approbation to the marriage of B and therefore, the bequest would take effect. A condition of residence in absence of any specific manner prescribed is fulfilled by occasional residence.27 Where property is transferred to a person if he executes a deed within a specified time and the document is executed within reasonable time but not within the specified time, it was held that the condition was not performed.28

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CONDITIONAL TRANSFER TO ONE PERSON COUPLED WITH TRANSFER TO ANOTHER ON FAILURE OF PRIOR DISPOSITION

Section 27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition.— Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition,29 although the failure may not have occurred in the manner contemplated by the transferor. But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.

Illustrations (a) A transfers R s. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect. (b) A transfers property to his wife; but, in case she should die in his life-time, transfers to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect. This section has to be contrasted with s. 16 of the Act which specifies that if the prior transfer fails due to violation of s s. 13 and 14, then a transfer that was to take effect upon the prior transfer would also fail. Similarly, if the prior interest fails under s. 25, then also, the subsequent interest fails. What should be noted is that the prior transfer’s failure, here, is not due to the violation of s. 13 or s. 14, but due to some other reason, and therefore, even if the prior transfer fails for a reason that was not contemplated by the transfer or could not have been foreseen by him, then the subsequent transfer would take effect. Therefore, it is only when the prior interest is perfectly valid to begin with and its failure is not due to its conflict with these legal provisions but due to some reasons that happen actually subsequent to the transfer and could not have reasonably been foreseen by the transferor initially, that the subsequent transfer would be Page 13 of 151

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valid. In such cases, it would be assumed as if the prior transfer was not in the way, consequently, the subsequent interest would be accelerated. For example, in illustration (a), the prior transfer fails due to the death of B, which might not have been contemplated by the transferor beforehand and therefore, the transfer in favour of C takes effect. It is not due to violation of any legal principle that makes the transfer void or inoperative, but due to an act of nature. Similarly, A makes a gift to his wife W and then to the children. The gift to W was invalid as it was unregistered and law required it to be by a registered instrument only. Therefore, the gift over in favour of the children would accelerate and would take effect immediately. Failure of the prior gift does not accelerate a subsequent gift unless the two gifts are dependant on each other.30 Thus, where an interest is given to A, B, C and D for successive periods of 21 years and B and C i.e., the interest in favour of D would accelerate and take effect.31 Similarly, in Radha Prasad v. Rani Mani,32 a Hindu made a gift to a son who was to be adopted by his wife and if he died without any son, the property was to go to his daughters. This power of adoption with W was invalid and therefore, the gift to daughters could take place with immediate effect. In Narandas v. Bai Saraswati,33A bequeathed his property to his wife, W, for life and then to his daughter’s sons. In case the daughter (D) had no sons, then to D, for life and then to a cousin C. In between the date of the W’s death, and the birth of D’s son, there was a gap of eight months. As the vesting of the property would have been in suspense for this period of eight months, the bequest to D’s son failed. With its failure the court said that in keeping with the intention of the testator to keep the property in the family, the bequest to C would take effect. This case was later, rightly criticised in Official Assignee of Madras v. Vedavalli Thayarammal,34 where there was a gap of 10 years between the death of the owner and the vesting of the property in case of a prior interest with a gift over provision it was held that the gift over also failed, as for 10 years, the vesting of the property would have been in a state of suspense. In Okhoymoney Dasee v. Nilmoney,35A made a bequest in favour of his child in womb in the following manner: ‘if the child born would be a son he would take the property absolutely and if it was a female child a provision for her maintenance was to be made out of the property. In case the would-be son died during minority the property would go to C ’. The child born was a female child. It was held that even though the gift over to C was on a special condition, i.e., in case of son dying during minority, it would take effect. Section Sections 129 of the the Indian Succession Act, 1925, provides for the rule of acceleration in case of bequests.

Section 129. Bequest to A and on failure of prior bequest to B.— Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest

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although the failure may not have occurred in the manner contemplated by the testator.

Illustrations (i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect. (ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A’s death and, if he should neglect to do so, to C. B dies in the testator’s life-time. The bequest to C takes effect. Where the prior bequest fails either because the one in whose favour it was, dies, and is therefore unable to take it, or if it was a conditional bequest in favour of a person who failed to fulfil the condition and it does not take effect, in such cases the bequest in favour of the subsequent beneficiary takes effect. In Govindraju v. Mangalam Pillai,36A bequeathed his property to B and C. The direction under the Will stipulated that his property was to be sold and the sale proceeds were to be equally divided between B and C. It further provided that if B or C died during the A’s lifetime or before the estate could be so divided, leaving any issue, the issue would take the property. On A’s death, both B and C took a vested interest. The condition for divesting was, if any one of them died before the division and distribution of the property. In such cases, their respective share was to vest in their lawful issue. C died five months after A and before the sale and distribution of property could be materialised. The court held that he was divested of the share and the same vested in his issue. ULTERIOR TRANSFER CONDITIONAL ON HAPPENING OR NOT HAPPENING OF SPECIFIED EVENT

Section 28. Ulterior transfer conditional on happening or not happening of specified event.— On a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.

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GENERAL PRINCIPLE

Section 130. When second bequest not to take effect on failure of first.— Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.

Illustration A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him, the bequest to B does not take effect. REPUGNANCY The section does not apply when a gift over clause is after the vesting of an absolute estate in favour of a specific person, described by name or description or a relation, e.g., A makes an absolute gift37 to his son with full power of alienation, yet at the same time provides that upon the grandson attaining the age of 21 years, the property should be equally divided between the sons and the grandsons. The gift over to the grandson was valid and therefore, son could not be divested of this estate. It was an absolute gift that was vested in his favour in the first place. Similarly, in Suresh Chandra v. Lalit Mohan,38 A bequeathed his property to his wife absolutely, and then provided that if on her death there was no son (adopted) or his legal representative, then the remainders of the property was to go to A’s heirs. Here the gift over was held to be void, as an absolute estate on her death was to go to her heirs and not in accordance with A’s wishes. FULFILMENT OF CONDITION SUBSEQUENT The section does not apply when a gift over clause is after the vesting of an absolute estate in favour of a specific person, described by name or description or a relation, e.g., A makes an absolute gift37 to his son with full power of alienation, yet at the same time provides that upon the grandson attaining the age of 21 years, the property should be equally divided between the sons and the grandsons. The gift over to the grandson was valid and therefore, son could not be divested of this estate. It was an absolute gift that was vested in his favour in the first place. Similarly, in Suresh Chandra v. Lalit Mohan,38A bequeathed his property to his wife absolutely, and then provided that if on her death there was no son (adopted) or his legal representative, then the remainders of the property was to go to A’s heirs. Here the gift over Page 16 of 151

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was held to be void, as an absolute estate on her death was to go to her heirs and not in accordance with A’s wishes.

Section 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 R s. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies a minor or marries without C’s consent, then R s. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect. IGNORANCE OF THE CONDITION NOT AN EXCUSE FOR ITS NONFULFILMENT Ignorance of a condition or stipulation in the document or legacy is no excuse for its nonfulfilment, as a person would be deemed to have knowledge of a condition in the document with the help of which he is seeking either a transfer or a benefit under the legacy. Where a person has actual notice of a document which incorporates a condition that he is supposed to fulfil, an excuse that he failed to read the condition, though the document was in his possession will not be admitted by any court. However, if he was prevented from performing the condition by force, this would be a valid ground. The corresponding provision under the Indian Succession Act, is s. 132, which provides as follows:

Section 132. Condition must be strictly fulfilled.— An ulterior bequest of the kind contemplated by section 131 cannot take effect, unless the condition is strictly fulfilled.

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(i) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, C and D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift of E does not take effect. (ii) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B. The bequest to C does not take effect. (iii)A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marries without the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to C takes effect. PRIOR DISPOSITION NOT AFFECTED BY INVALIDITY OF ULTERIOR DISPOSITION

Section 30. Prior disposition not affected by invalidity of ulterior disposition.— If the ulterior disposition is not valid, the prior disposition is by not affected by it.

Illustration A transfers a farm to B for her life, and, if she does not desert her husband to C. B is entitled to the farm during her life as if no condition had been inserted. The corresponding section under Indian Succession Act is s. 133, which provides as follows:

Section 133. Original bequest not affected by invalidity of second.— If the ulterior bequest be not valid the original bequest is not affected by it.

Illustrations

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(i) An estate is bequeathed to A for his life with condition super-added that, if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the will. (ii) An estate is bequeathed to A for her life and, if she does not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the will. (iii)An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B at the date of the testator’s death, has not had a son. The bequest over is void under section 105, and A is entitled to the estate during his life. A prior interest may render the subsequent interest invalid, if s s. 13, 14 and 25 are attracted. However, the invalidity of the subsequent interest can never cast its shadow on the prior interest. If the subsequent interest is invalid and the prior is valid, the prior interest would not be adversely affected. In the illustration, the condition on which C is to get the property is void as it is opposed to the rule of public policy, and therefore, this too, would fail. However the prior transfer in favour of B is valid as B is entitled to ignore this condition. Therefore, the fact that a void transfer and a valid transfer are part of the same deed, would not affect the validity of the valid transfer, if it is prior to the void transfer. Had it been subsequent, the rules would have been different. Conditions divesting in Wills are in case of death without issues,39 or before a specified event,40 or non-residence41 or on adoption of a son.42 Where a person settles property for life on his second wife and then to her son and provides that if she had no son then the property would go to the son of his first wife, the son of the first wife takes a vested interest liable to be divested by the birth of the son of the second wife.43 Similarly, where under a compromise it is provided that A would have a life interest and after her death the property is to go to B absolutely if B survived A, and if this did not happen, the property is to pass to B’s lineal male descendants according to the rule of primogeniture, B takes a vested interest liable to be divested, if he does not survive A.44 A condition of defeasance does not apply to an interest that is already vested,45 except by clear words.46 An ambiguity in the condition subsequent will be read in the sense most favourable to the vested interest.47 Thus, where a widow was granted a power to take another child in adoption on the death of the first adopted child to replace him, and the adopted son was to take an absolute estate on the death of the widow, it was held that the implication of a gift over to the second adopted son would not prevent the estate from vesting in the first adopted son’s widow.48 Where an absolute estate was liable to pass to the heirs of the settler if the grantee died without any descendants,49 a son,50 or son and his wife,51 it was held that the gift over was void. Similarly a gift over of the absolute estate to the sons of the grantee after the son attained the age of 21 years,52 or a clause in the absolute gift to the wife with a condition of defeasance should she have a grandson is void.53 Page 19 of 151

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CONDITION THAT TRANSFER SHALL CEASE TO HAVE EFFECT IN CASE SPECIFIED UNCERTAIN EVENT HAPPENS OR DOES NOT HAPPEN

Section 31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.— Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.

Illustrations (a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood; the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm. (b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases. Subject to the provisions of s. 12, on a transfer of property, an interest may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen or in case a specified uncertain event shall not happen. For such conditions to be valid it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest,54 This section speaks about those types of conditional transfers where the transfer would come to an end if a specific uncertain event happens or does not happen. In illustration (b), the divesting of property would take place if B does not perform a particular condition. If he does not go to England within three years, he will be divested of the property. It should be compared to s. Sections 134 of the Indian Succession Act, which provides as follows:

Section 134. Bequest conditioned that it shall cease to have effect in case a specified uncertain event shall happen, or not happen.— Page 20 of 151

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A bequest may be made with the condition super-added that it shall cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.

Illustrations (i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, the bequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate. (ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him. (iii)An estate is bequeathed to A, provided that, if he shall not go to England within three years after the testator’s death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases. (iv)An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest in the estate. A becomes a nun. She loses her interest under the will. (v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, if B shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She thereby loses her contingent interest in the fund. Illustrations (i) and (iii) are identical to the one provided in s. 31 of the TP Act. In illustration (i), the divesting would take place if the grantee fails to fulfil a particular condition i.e., not to cut down a specific wood. The condition, if not valid, must be fulfilled by the grantee and if it is not, then the transfer fails. A condition that the industrial unit shall be established within a specified period failing which the interest shall cease is a valid condition.55 Similarly, where a prisoner sentenced for life transfers his property to another with a condition that the interest created in the transferee would cease if the transferor returns from the prison; once he returned from prison, the transfer in favour of the transferee ceases.56 A condition subsequent requiring residence is valid,57 and would not be defeated where the devisee was required to stay in a holy place but was forcibly detained in another place.58

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The event contemplated should be clear and not general or vague.59 The above principles do not apply to a transfer with a condition superadded to it.60 SUCH CONDITION MUST NOT BE INVALID

Section 32. Such condition must not be invalid.— In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest. The parallel provision under the Indian Succession Act, is s. 135.

Section 135. Such condition must not be invalid under section 120 .— In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of a bequest as contemplated by section 120. The condition, therefore, must be valid. If the condition is void, then it would not divest a person of the estate. A condition that is void as a condition precedent is also void as a condition subsequent, and cannot affect the validity of the transfer and if the condition is void, a failure to comply with it would not result in the forfeiture of the estate. In Satish Chandra v. Sarat Subdari,61A bequeathed a house to W on the condition that if she failed to live in it, the bequest would be forfeited. He intended to build this house that was the subject matter of the bequest, during his lifetime but died before he could do so. The condition was impossible and therefore void and even if she lived elsewhere, she was entitled to the interest.

TRANSFER CONDITIONAL ON PERFORMANCE OF ACT, NO TIME BEING SPECIFIED FOR PERFORMANCE

Section 33. Transfer conditional on performance of act, no time being specified for performance.—

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Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act. The parallel provision under the Indian Succession Act is s. 136.

Section 136. Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-performance of which subject-matter to go over.— Where a bequest is made with a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act.

Illustrations (i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfill the condition. B is entitled to receive the legacy. (ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B’s daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest ceases to have effect. If a person takes an interest in property but subject to his fulfilling a condition he is not permitted to create conditions by his conduct, whereby he tries to evade the fulfilment of conditions, yet attempts to take a benefit under the very transfer; his conduct is not in consonance with the condition that the transfer is subject to. Thus, where a person bequeaths certain properties to his daughter’s son in the event of his widow dying without adopting a son, and the interest given to the son is conditional on him living in the family house, but the son joins the widow in selling the house it is a breach of condition, and he will be deprived of the interest given to him by the bequest.62 TRANSFER CONDITIONAL ON PERFORMANCE OF ACT TIME BEING SPECIFIED

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Section 34. Transfer conditional on performance of act, time being specified.— Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the nonfulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled. In continuation of the provisions enacted under s. 33, this section incorporates a rule that prevents a person from taking advantage of his own fraud. Under the Indian Succession Act, the parallel provision is s. 137.

Section 137. Performance of condition, precedent or subsequent, within specified time. Further time in case of fraud.— Where the will requires an act to be performed by the legatee within a specified time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the nonfulfillment of which the subject-matter of the bequest is to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified, unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud. Thus, where a person granted an interest to the female members of his family but provided that if any of them would live at any other place than a holy place for more than three months the interest would be forfeited, and the female members were forcibly removed from the place by their relations, it was held that the forfeiture would not be effected as they were held against their will.63

ELECTION

Section 35. Election when necessary.— Page 24 of 151

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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 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. A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom. Exception to the last preceding four rules. — Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claim the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction. Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which Page 25 of 151

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would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances. Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent. Such knowledge of waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done. Illustration A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B. If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer. In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority. GENERAL PRINCIPLE The principle underlying the doctrine of election is that benefit and burden must co-exist. A person while accepting a benefit of one deed cannot reject or go against the burden expressed in the same. This can be explained in the following way. The transferor transfers two properties; one that he owns, to the transferee, and the second property that he professes to transfer with the help of the same transaction, which belongs to the transferee. The second property he transfers without the consent of the owner, i.e., the transferee, in favour of a third party. So one transfer is in favour of transferee while the second transfer is of the property belonging to transferee, without his consent, in favour of a third person. The validation of both these transfers would now be in the hands of the transferee. He has to signify the validation by electing to either confirm the transfer in his favour or rejecting it. If he accepts the transfer in his favour executed by the transferor, the other transfer, that is, of his own property in favour of the third party, will also be confirmed. In a way the consent of the transferee is to be obtained after the transferor has transferred his property without seeking it in the first place. Yet at the same time if he accepts the transfer in his favour, he is not permitted to reject the second transfer in favour of the third party on the ground that his consent was not obtained or he does not want Page 26 of 151

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to go ahead with that transfer. For instance, A is the owner of a property X and B is the owner of the property Y. S is the son of A, and a friend of B. A professes to transfer property X to B and property Y to S. Here, B has to elect to confirm the transfer in his favour or reject it. If he confirms it, he would accept property X, but then he would have to forgo property Y in favour of S. If he rejects the transfer he has to do it in totality. He cannot accept property X and reject the later portion of the transfer whereby his own property Y is transferred to S. As the basic presumption under the law is that the transferor intended to give effect to each and every part of the deed that he executes, the transferee is not permitted to approbate and reprobate at the same time. He has to accept either the deed and its contents in totality or reject it in totality. He cannot accept only benefits and reject or ignore the part that imposes a liability on him. Knowledge on Part of the Transferor Immaterial The rule applies whether the transferor does or does not believe that what he professes to transfer is not his own. The transferor may genuinely believe that he is authorised to execute what he is transferring, or he may deliberately transfer property belonging to another, while giving him a benefit in the shape of executing another transfer in his favour. He may even be ignorant of the principle of election. Here, irrespective of the knowledge on part of the transferor, the transferee must exercise election to confirm or reject both the transfers. This part of s. Sections 35 of the 182 of the Indian Succession Act, 1925. Thus, no one can take under and against the same instrument. Where a testator bequeaths a land belonging to his niece, to his grandson, and leaves his niece a legacy of Rs. 800, she must elect between the land and the legacy.64 If she chooses to accept the legacy, she cannot vitiate the transfer in favour of the nephew of her own property. While accepting the legacy, she confirms the transfer in favour of the nephew also. Transferee to have a Proprietary Interest The transferee can be permitted to elect only when he has a proprietary interest in the property that has been transferred by the transferor in favour of a third party. Equity of election does not apply unless the donee has a proprietary interest in the property disposed of, in derogation of his rights.65 For instance, the transferor, transfers two properties to A and B as part of the same transaction. Both the properties belong to the transferor. No question of election would arise here either on part of A or B as none of them had a proprietary interest in any of the properties before the transfer. Same Transactions The transferee is not permitted to exercise election if the two transfers are independent of each other and are not part of the same transaction.66 A beneficiary under a prior gift and a later Page 27 of 151

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Will is not precluded by doctrine of election. For instance, A executes a transfer of his son’s property in favour of his second wife. Upon his son’s protest, he executes another deed after a week by which he gifts his land to his son. Here the validity of the first transfer does not depend on the doctrine of election, as both the transfers are not part of the same transaction but are independent of each other. Here the son can take the benefit under the second transfer and at the same time refuse to go ahead with the first one, as both transfers are separate and are not part of the same transaction. Similarly, a person A was the nawab of a place T. He executed a deed whereby he gave two villages to his son for securing his maintenance. Upon his death, the government transferred a portion of the cash allowance to the son. Out of the two benefits that came to the son, he is capable to accept both, and need not elect to accept only one as the sources from where he acquired the benefits were different. One was directly from his father and the other was on the death of the father from the government.67 Direct Benefit A person taking no benefit directly under a transaction but deriving a benefit under it indirectly, need not elect.68 For instance, A gives a house X to B for life, and after his death, to B’s son S absolutely. He subsequently, makes a Will by which he gives X to C and another property Y to B. Shortly thereafter A dies and then B dies without making the election to either confirm or reject the benefit under the bequest. His son s. would now take X as per the original transfer executed by A and would take the land Y under intestacy on the death of his father B. As he is an indirect beneficiary, he would not be required to put to election.69 Similarly, a person, who in one capacity takes a benefit under the transaction, may in other dissent there from. The doctrine of election does not apply 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 other cases where the transfer is for consideration.70 Acceptance with Full Knowledge Implies Final Election Acceptance of a benefit implies an election.71 A party should not at the same time affirm and disaffirm the same transaction.72 So when he accepts the benefit under the transaction, the other transfer by which his own property goes to another person, is automatically confirmed. Where a person accepts the benefit with full knowledge of the circumstances, the election made by him is final and cannot be revoked by him subsequently. However, if the election is made without any or incomplete knowledge of the full circumstances, it can be revoked by the representatives of the party. However, it must be shown that he had no actual or even constructive knowledge of the full situation. If there was a duty cast on him as a reasonable man to inquire into the circumstances, and he does not inquire, constructive notice would be imputed on him of the same and it will be presumed that he knew the full circumstances. Special care has to be taken in case the election is by a pardanashin woman, as to whether she Page 28 of 151

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was fully informed of the circumstances or not. The courts have held that unless a pardanashin woman has been fully informed about the circumstances and the consequences of election, any election made by her will not be irrevocable.73 Time for Election Ordinarily, the time for election may be fixed by the transferor himself. In case it is so fixed and the transferee does not elect, it will be presumed that he does not want to confirm the transfer.74 In case of a person having a disability, election can be made either by his guardian of property or by him personally, when the disability is removed. According to s. 35, if the transferee does not, within one year after the date of the transfer, signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer. Election Under Hindu Law The doctrine of election was recognised under the classical Hindu law. Presently, it applies to Hindus expressly under the Act. Where a Hindu widow devised to a person the immovable property of her husband and gave to the reversioner a legacy of R s. 2000, and the reversioner claimed the property as the heir and also claimed the devise of R s. 2000 under the Will, the doctrine of election applied and it was required for him to elect one or the other.75 Similarly, where a widow who had a life estate for maintenance granted a permanent lease, the reversioner could elect either to ratify it or to set it aside; but he was not bound by the lease when he accepted the rent for three years in ignorance of the circumstances under which the lease was granted or the terms on which it was held.76 APPORTIONMENT

Section 36. Apportionment of periodical payments on determination of interest of person entitled.— In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.

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GENERAL PRINCIPLE Apportionment literally means distribution. The present section relates to apportionment by time, and provides rules for distribution of the amount of periodical payments coming out of the property as between the transferor and the transferee, after the transfer has been effected. It says that rents, annuities, pensions, dividends and other periodical payments in the nature of income after the transfer shall be deemed to accrue from day to day. The rule is incorporated to avoid confusion and uncertainties. For instance, where property that is yielding income is transferred, this property vests in the transferee from the date of the transfer ordinarily, unless a contrary intention is specified by the instrument effecting the transfer. If the time for realisation of the income is different from the date of the transfer, a confusion may arise as to from which date is the transferee entitled to realise the income and for which period. For instance, A has a house that he has given on rent. As per the agreement with the tenant, the tenant pays R s. 3000 as rent to A on the last day of each month. A sells this house to B on the tenth day of the month. On the thirtieth day when the tenant pays the rent, A would be entitled to the rent of the first ten days and the transferee would take the rent for the rest of 20 days, i.e., the transferor would take Rs. 1000, and the transferee R s. 2000. The apportionment contemplated here is applicable only as between the transferor and the transferee,77 and follows the transfer of interest of a person entitled to receive rents and not the transfer of an interest of a person bound to pay it.78 A lessor transferring his interest to the assignee of the lessee is entitled to an apportionment of rent up to the date of the merger.79 When a decree is passed for the redemption of a mortgage, the apportionment of the rents of the mortgaged property is made as from the date when money is paid for redemption and not from the date of the decree.80 A Hindu widow’s right to maintenance accrues from day to day, and on her death her heirs are entitled to recover maintenance allowance up to the date of her death.81 Apportionment Applies to Transfers Subject to the Act The rule of apportionment applies only to the transfers within the meaning of s. 5 of the Act and therefore does not apply to court sales82 or the partition of Hindu joint family property.83 Contract to the Contrary Since transfer of property is primarily a contract, a contrary condition in the deed would exclude the rule of apportionment.84 The parties to the contract may specify a certain date or a specific mechanism as the determining factor. For instance, A transfers a house that is in occupation of tenants, to B on 10 January 2000. The parties agree that the rent of the month of January will be taken by A, while B would be entitled to collect the rent from February. This is an agreement that deviates from the rule of apportionment as specified in s. 36, yet it will be valid; and in case of a dispute, the claims of the parties will be decided in accordance with this agreement and not by the rule enunciated in s. 36. Where a managing agent assigned his interest in the agency, the court inferred a contract to the contrary and held that the transferor had no right to the commission for the period prior to the date of the transfer.85

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Local Usage Contrary to the Rule of Apportionment Rule of apportionment can also be excluded by a local usage to the contrary.86 With respect to agricultural rents, the courts have held that apportionment is not available, as rents accrue only at the time when crops are reaped; or, if applicable, would be not for the whole of the year but for the season in which they are reaped.87A’s co-sharers right under the Agra Tenancy Act, 1936 accrues from day to day and his suit filed before the fixed date can be ascertained by apportionment.88 APPORTIONMENT OF BENEFIT OF OBLIGATION ON SEVERANCE

Section 37. Apportionment of benefit of obligation on severance.— When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose: Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance.

Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.

Illustrations (a) A sells to B, C and D a house situated in a village and leased to E at an annual rent of R s. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7.50 to C, and Rs. 7.50 to D, and must deliver the sheep according to the joint direction of B, C and D. (a) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to Page 31 of 151

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perform this work for A. B, C and D severally require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work in all, according to such directions as B, C and D may join in giving. GENERAL PRINCIPLE The present section relates to apportionment by estate. It provides that if the tenant knows that property is bought by several co-sharers, he should not pay the rent to just one of them or to all of them in equal shares, but must pay rent to each of them in proportion to their contribution. A tenant is therefore, under an obligation to pay rent to each sharer, his proportionate portion of the rent.89 For instance, four brothers, A, B, C and D jointly purchase a house that is in occupation of the tenants for a consideration of Rs. 12 lakhs. A and B give two lakhs each, while C and D contribute Rs. 4 lakhs each. The tenant pays a rent of Rs. 6000. He is to pay to A and B Rs. 1000 each and to C and D Rs. 2000 each. Where the estate comprising of several villages is apportioned, the existing rents will guide the division,90 and not the rents at the time of the original tenure. Land revenue payable to the zamindar can be apportioned between co-sharers in the zamindari.91 In the absence of an apportionment, the lessor is incapable of splitting the tenancy by recovering the rent of a part only.92 Similarly, the purchaser of a part of the property cannot insist on the payment of the rent of his part only.93 Apportionment when Severance not Practical The rules laid down here are for the convenience of the parties and for peaceful settlement of disputes. They are not intended to put heavy or impossible duties on the parties to the contract, and therefore, if the duty cannot be severed or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners, as they shall jointly designate for that purpose.94 Thus, where an agriculture holding came to be divided so that the fields were allotted to one co-owner and the appurtenant farmhouse in the abadi to another, it was held that the tenant was entitled to continue to have the occupation of the farmhouse rent-free.95 Notice of Severance A person will be liable under this section only when he has notice or knowledge of the respective contribution of the transferees. This person on whom the burden of the obligation lies is not answerable for failure to discharge it unless and until he has had reasonable notice of the severance.96 Notice can be given by the transferor or by the transferee.97 Apportionment not to Apply in Cases of Involuntary Transfers

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The rule of apportionment does not apply to court sales, other involuntary transfers, or succession,98 or to leases for agricultural purposes,99 unless and until the state government by notification in the Official Gazette so directs. (B) TRANSFER OF IMMOVABLE PROPERTY TRANSFER AUTHORISED ONLY UNDER CERTAIN CIRCUMSTANCES TO TRANSFER

Section 38. Transfer by person authorised only under certain circumstances to transfer.— Where any person, authorised only under circumstances in their nature variable to dispose off immoveable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.

Illustration A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable, to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed. GENERAL PRINCIPLE This section relates to transfer by a specific category of transferors having qualified powers of alienation, i.e., who can transfer property not generally like an owner, but can do it only in certain variable circumstances. They have limited powers of alienation over the property and if they exceed their powers, the transfer can be challenged and may be declared void. The section seeks to protect bona fide transferees acting in good faith, who enter into transactions with transferors who do not have an absolute, but, only a qualified power of alienation of the property. In such a situation if the transfer were declared void, it would cause gross injustice to the bona fide transferees.

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Limited Power of Alienation The principle applies largely to cases arising under personal laws or family laws. For instance it applies to the case of a Hindu father transferring the joint family property for his own benefit, manager for an infant,1 guardian of property of a ward, alienations by a Hindu widow who took the property as a limited owner,2 other limited heirs3 alienations by a mohunt or shebait of debutter property,4 or an unauthorised alienation made by the karta of the coparcenary property,5 or by an executor of a minor’s estate.6 Circumstances Variable in Nature The transferor is empowered to sell the property, but only under certain specific circumstances that may vary from case to case. This is the reason why they are called variable in nature. The circumstances are specific, but when they would exist in a particular case, or whether they exist or not, is not certain. For instance, under hindu law, in case of alienations of joint Hindu family property by the karta, the permission to sell is available not generally, but only when there is a legal necessity,7 or the transaction would amount to benefit of estate or if it is for the performance of indispensable religious and charitable duties, and that is variable in nature as it may vary from each and every case depending upon the fact and the status of the transferor. The father can sell the property for continuation of the family business in case of trading families, but not for starting a new business. Similarly, a guardian of the property of a minor cannot sell the property without the permission of the court even for the benefit of the minor. A Hindu father can sell the joint family property for the satisfaction of his antecedent debts. Likewise, a Hindu son was permitted to sell the property for the satisfaction of his father’s debts.8 A stepmother purporting to act on behalf of the minor stepson is a person authorised only under circumstances in their nature variable to dispose off immovable property.9 Where any person authorised only under circumstances in their nature variable to dispose of immovable property, transfers such property for consideration alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons affected by transfer on the other part, be deemed to have existed if the transferee after using reasonable care to ascertain the existence of such circumstance has acted in good faith.10 Reasonable Care Since the transfer affected in favour of the transferee can be challenged and has the potentiality of being declared void in certain situations, the transferee has to be extra vigilant and must show that he had taken reasonable care to ascertain the competency of the transferor in the given situation. It is he who has to show that either the need existed, or he had made proper and reasonable inquiries as to the competency of the transferor and had also acted honestly. In case the transferor is the karta of a joint Hindu family, and the sale is for a legal necessity, it is the transferee who has to make inquires from the transferor (karta) about whether the need actually exists. Similarly, in case of alienation by a Hindu father for an antecedent debt, the existence of a debt must be shown by the transferee.11 Thus where the sale Page 34 of 151

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deed executed by a Hindu widow recites the payment of family debts as the necessity justifying the sale, but the purchaser makes no enquiry of the creditors named in the deed, his rights will not be protected.12 RECITALS IN THE SALE DEED Existence of recitals in the transfer deed that circumstances justifying the sale exist in a particular situation are not sufficient,13 and proof that the transferee made reasonable enquiries and acted honestly must be supplemented by evidence,14 unless the original parties and others who could have given evidence are dead due to passage of time and the circumstances are such as to justify a reasonable belief that such an inquiry would have confirmed the truth,15 and presumptions are admissible to fill in the details.16 A transferee must show that he made reasonable inquiries, took care and acted honestly. PARTIAL NECESSITY The joint family may be confronted with a need for a specific amount of money. However, it may not be possible to raise an exact amount of money by the sale of a property. If the amount fetched is more than what is actually needed, the alienation can be justified by partial necessity because the whole of the amount may not be utilised for the necessity.17 It is irrespective of whether the amount utilised is considerable or small.18 As an exact amount can be raised by a mortgage, in case a karta raises money by mortgage of the family property for a loan, in excess of the amount required, the coparcenors will not be bound by the excess amount raised,19 and the transfer could be declared partly valid and partly void at their instance. Guardian’s Powers over Minor’s Property In case of property belonging to a minor, the guardian of the property again has qualified powers of alienating the same. The natural,20 testamentary,21 or a guardian appointed by a court, has the power to alienate minor’s properties for legal necessity and benefit of estate,22 but a natural guardian cannot, without the prior permission of the court, mortgage or charge or transfer by way of sale,23 gift or exchange,24 or lease out his property for more than five years or for more than one year beyond the date on which the minor would attain majority.25 A guardian can alienate and bind the property of the minor26 only in cases of the minor’s necessity,27 and has no power to bind the minor personally.28 When the guardian obtains prior permission of the court to alienate minor’s property and enters into a contract of sale, the contract can be specifically enforced. Actual Application of Money not Required to be Seen For the validation of the transfer, the alienee is not bound to see as to the actual application of money as that would be subsequent to alienation.29 It is neither practical nor feasible, as after the money passes in the hands of the transferor having qualified powers of alienation, the Page 35 of 151

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alienee can never control the utilisation of money. Burden of Proof The burden of proving the justifying circumstances and proper inquiries is on the transferee.30 Thus, whenever an alienation is challenged, the alienee has to prove that there was legal necessity.31 If the alienation is by a father for payment of antecedent debt, the burden is on the transferee to prove that the debt existed or that after proper inquiry he believed that it existed,32 but where the son contends that it was contacted for immoral purpose and the transferee had notice of it, the burden would shift on the son to prove the same.33 A mortgagee from a Hindu widow seeking to enforce his mortgage,34 or a person claiming title under a conveyance from a woman as against the reversioners,35 have to prove not only the genuineness of the conveyance but the full comprehension by the limited owner of the nature of the alienation she makes, and also if the alienation is justified and the alienee satisfied himself reasonably about the existence of such necessity. Alienation by Karta or Guardian Only Voidable When a person having qualified powers of alienation alienates the property, such alienation is not void but voidable, i.e., alienation by karta of the joint family without necessary justification or that of minor’s property by a guardian is merely voidable at the option of the coparcenors36 or the minor37 and not void; and may be set aside only to the extent of their share in the family property.38 A transferee of a minor’s share can also avoid an improper alienation made by the guardian.39 When the alienee has the possession of the property the coparcenor cannot sue for a mere declaration that alienation is void, but must also sue for the consequential relief of possession.40 In case of a minor, no suit is necessary to repudiate an improper alienation but if he wants recovery of possession, then a suit needs to be filed.41 TRANSFER WHERE THE THIRD PARTY IS ENTITLED TO MAINTENANCE

Section 39. Transfer where third person is entitled to maintenance.— Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

GENERAL PRINCIPLE

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This section aims to protect persons who have a right to maintain themselves out of the property which is owned or controlled by some other person. Where such property is sold without making any alternative arrangement for those dependent upon it for their maintenance, they would be left high and dry. The rule here stipulates, that as the right is in property, if the property is sold, the persons entitled to claim maintenance is entitled to follow the property in whomsoever hands it may be and realise their maintenance amount from it. For example, a Hindu father having a son and a daughter leaves the property in favour of the son through a Will and provides that out of the income coming from the property, the son would pay R s. 5000 per month to the daughter for her maintenance. The son sells the property to X, without making any alternative arrangements for the daughter. Here, the daughter is entitled to realise her maintenance not from her brother, but from X, in whose hands the property is. However, it is essential that the transferee, against whom the right of maintenance is enforced, should either be a gratuitous transferee or a transferee who had notice of the claim or right of the party seeking maintenance. It cannot be enforced against a transferee for consideration who had no actual or constructive notice of the claim of maintenance. Thus, where a third person has a right to receive maintenance, or a provision for advancement,42 or marriage, from the profits of immovable property and such property is transferred, the right may be enforced against the transferee if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands. Where the claimants to maintenance are party to such transaction of immovable property or have knowledge of the transfer they would be stopped from claiming maintenance from the transferee. For example, if the husband transfers his property with the knowledge of his wife and children, the latter as such would have no claim of maintenance against the transferee.43 Third Party The expression ‘third party’ refers to a person who is not a party to the transfer yet has an enforceable right in the property that is the subject matter of the transfer. It would include a wife,44 including a widow,45 children,46 mother,47 a daughter,48 and even male members such as minors, and disqualified coparceners in a Mitakshara joint family,49 who are unable to maintain themselves and are otherwise also entitled to maintenance. MAINTENANCE The term maintenance has not been defined in the Act, and is understood as an amount of money or property that can take care of the necessities of a person unable to maintain herself. It may include depending upon the facts and circumstances of the case, residence and expenses sufficient for food, clothing, provisions for educational expenses of children, and marriage expenses of unmarried children, more specifically, daughters. It includes a right to receive enhanced maintenance,50 and separate residence51 and maintenance. Claim of maintenance is a pre-existing right of a wife and is enforceable against property in the hands

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of alienee who takes it with notice of her claim.52 In Adiveppa v. Tengawwa,53 by way of settlement of property between husband and the wife, the wife was granted separate residence as part of her maintenance. While she was in possession of the property, the husband sold it to a third party who took it with notice of her residence and claim over it. Dismissing his suit for possession, the court held that till she was alive the alienee would not be entitledto possession of the property. In such cases, a transferee with notice has no option but to wait till she dies and then take possession of the property. Maintenance not a Charge Maintenance can be a charge on the property if it is secured through a decree or an agreement,54 or if pursuant to an arrangement, a certain property has been allocated with the specific purpose of securing the maintenance rights from it.55 In case of a Hindu widow, it is in the nature of an indefinite right and falls short of charge.56 Maintenance not Secured by a Decree A person entitled to realise the maintenance from a specific property that has passed into the hands of the alienee with notice can proceed against him even without a decree in his favour, more so in a gratuitous transfer.57 Thus, where the husband gifts his properties to his concubine without making any provision for his wife, the wife is entitled to have a charge against the very properties and enforce the same.58 However, if a charge is created by a decree, it would be binding on a transferee irrespective of whether he has notice of the charge or not.59 Maintenance of Widow and Debts Due to the Family As between the maintenance rights of a widow and the debts due to the family, the latter, if contracted for the benefit of the family, take priority over her claim of maintenance.60 This would be the situation even if the transferee has notice of her right.61 However, if the maintenance has been specifically charged, her claim will have priority.62 If the coparceners sell off the coparcenary property to pay their debts without making arrangements for her maintenance, the widow has a right to enforce her rights against such property and challenge any unauthorised debts that the coparceners may have contracted.63 Marriage Expenses Under Hindu law, the right of maintenance specifically includes a right to claim marriage expenses from the joint Hindu family property in case of an unmarried daughter,64 including a daughter’s daughter,65 and even sons,66 but not for the marriage of minors,67 or when they are marrying a second time,68 and a transferee takes the property subject to such liability if he has notice of it at the time of the transfer. Notice on Part of the Transferee

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The essential condition for making maintenance an obligation on part of the transferee is that he must have taken the property with notice of the right of the claimant. Notice can be actual or even constructive. If the circumstances were such that by making reasonable enquires, which he should have made as a normal prudent person, he could have known the claim, he would be imputed with notice of the same. This imputation of notice of the existence of the right is sufficient to bind the transferee,69 but he is not so bound if he is a bona fide purchaser for consideration and without notice.70 A son cannot plead want of notice about the right of mother to claim maintenance from him, and a partition would have no impact on her right. Intention on Part of the Transferee not Necessary Though as a reasonable prudent person, normal and specific inquires may have revealed the existence of a right of maintenance over the property that is the subject matter of transfer, yet a failure to do that would merely lead to an imputation of knowledge on part of the transferee. No motives can be attributed on part of the transferee. Even though it would be an unconscionable act on part of the transferor to transfer the property, yet it cannot be said that the transferee was also a party to the deceit. Therefore, it is not necessary to prove that he was a party to the fraud or had an intention to deceive. Thus the claimant need not prove71 that the transferee was aware of an intention to defraud the widow or to defeat her right of maintenance.72 BURDEN OF OBLIGATION IMPOSING RESTRICTION ON USE OF LAND

Section 40. Burden of obligation imposing restriction on use of land.— Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or Or of obligation annexed to ownership but not amounting to interest or easement.— Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.

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Illustration A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A. GENERAL PRINCIPLE This section was amended in 1929, and has to be read along with s. 11 of the Act. The first part of s. 40 seeks to protect the rights of the original owner of the property in accordance with the terms on which he had sold the portion of his property to the transferee (present owner). For instance, A is the owner of a large plot of land, adjoining a road. He constructs a house on half of the plot, and the other half adjoining the road, is left open. On this plot he makes a four feet wide path to reach the road. This path is used by him and his familyto access the road as well as their house. A later sells this vacant plot of land to B with the condition that B would not build on this path and will also not obstruct the access through this path. This condition is incorporated in the sale deed. B would be legally bound to follow this condition. This might have been a contract to begin with between two people. Presently, B is the owner of the property having an absolute right of enjoyment over his property, but as this restriction helps A to enjoy his property in a better manner, the condition would be binding on B. It must be noted here that as A had sold the property he has no right in it of the owner. He would be described in relation to this property as a third party. He neither has any interest in it nor any easement rights, but has a legal right to compel to enjoy his property in a specific manner. The second part of s. 40 refers to a situation where B sells this property to a transferee. This transferee may be aware of this restriction/condition or may not have any knowledge of it. Secondly, this transferee, C may be a gratuitous transferee; he might have received the property without consideration say through a gift. As to the binding force of this condition, a gratuitous transferee or a transferee who has notice of this condition would be bound by it in the same manner as B was. However, a bona fide transferee without actual or constructive notice would not be bound by it and therefore the same cannot be enforced against him by A. It must be noted that the enforceability of such conditions can be either by A, i.e., the original owner of the property or even a transferee or a legal representatives of A. Thus, if for the beneficial enjoyment of his own immovable property, a third person73 has the right independently of any interest in the immovable property of another to direct the enjoyment in a particular manner of the latter’s property, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands.74 It is based on the principle that when a man, by gift or purchase, acquires property from another with knowledge of a previous contract lawfully and for valuable consideration made by him with a third person to use and employ property for a particular purpose in a specified manner, the acquirer shall not, to the material damage of the third party in opposition to the contract and inconsistently with it, use and employ the property in a manner not allowable to the giver or seller.75 Since these Page 40 of 151

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restrictions are not of the same importance as easements, or covenants running with the land they can be enforced only as against transferee with notice or gratuitous transferees.76 Restrictive Covenants As has already been explained under notes to s. 11, covenants that are imposed by the transferor for the better enjoyment of his own property, on the transferee, can be of two types. The ones that restrain him from doing a particular act are called negative covenants or negative restraints. Those conditions or covenants that require the transferee to do a particular act are called positive or affirmative covenants. For instance, A sells a plot of land adjoining his house, to B and inserts two conditions in the transfer deed. The first condition requires the transferee not to open windows overlooking the courtyard of A, as that would disturb his privacy, and the second is he must maintain the front lawn so that A is able to enjoy the greenery. The first covenant is a negative covenant, it restraints the transferee from doing an act i.e., not to build windows in the direction of A’s courtyard and the second is an affirmative covenant because it requires B to spend his own money. Both these conditions would be binding on the transferee as he agreed to abide by the contract. But negative covenant attach themselves to the land and run with the land, i.e., if B transfers the property to a third party the negative covenants are enforceable against this third party if he takes the property with notice of the covenant or where it is a gratuitous transfer. Positive or affirmative covenant remain in the nature of mutual contract and are not enforceable as against a third party. Negative Covenants In equity, a negative covenant or agreement restricting the user of the land as aforesaid, attaches itself to the land and runs with it.77 It is binding on the purchaser who has notice of the covenant.78 Such covenant should be negative and this rule does not apply in case of positive or affirmative covenant.79 A covenant by a purchaser not to use the burdened property for any other purpose other than a single dwelling house,80 or a covenant restricting the nature of building to be erected,81 an injunction for not obstructing the right of way of a person through the backyard of another,82 are illustrations of negative covenants. The covenantee or his assignee cannot sue unless the covenant relates to, or concerns some ascertainable property belonging to him or in which he is interested. If the transferor parts with all his land, there is no land with which the benefit of the covenant can run,83 and the same will not be enforceable. The owner must possess land or property for whose enjoyment the covenant is necessary. If on the date when the covenant is taken the covenantee has no land to which the benefit of the covenant could be attached, the burden of the restrictive covenant cannot enure against a derivative owner even when he takes with notice,84 though the property for the benefit of which restrictive covenant is entered into, need not be independent of or outside the demised premises.85

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A covenantor is also entitled to the benefit of a restrictive covenant when it is for mutual benefit, notwithstanding the absence of mutual covenants.86 Affirmative Covenants Affirmative covenants are conditions that require the transferee to do a specific act and may involve expenditure of money.87 They are collateral, do not attach themselves to the land and therefore do not run with the land either in law or in equity.88 Since they are in the nature of a personal contract between the transferor and the transferee, they cannot be enforced against the purchaser from the transferee.89 A covenant to pay money,90 lay out money in building or repairs,91 or contribution to the cost of roads and severs,92 to pull down rooms on a passage,1 or a covenant to a sub-lessee to pay rent to the original lessor,2 are illustrations of positive covenants. Personal Covenants Where, under the terms of the contract, the parties agree to abide by certain conditions incorporated under the deed, they remain in the nature of personal obligations or covenants. Generally these personal covenants do not run with the land and therfore are not enforceable as against a third party. A covenant of indemnity,3 of reconveyance of a right of easement,4 paying commission on the extraction and sale of coal from a mine,5 or of not paying the land revenue with respect to the land retained in his possession by the transferor,6 or a covenant to pay a specific sum7 or one fourth of the sale proceeds in the event of sale,8 are illustrations of personal covenants. Covenants Running with the Land Agreements which bind not only the parties to the contract but also run with the land and can be enforced are—covenants to pay rent and taxes,9 or of pre-emption,10 or of the lessee to pay the lessor a share of the purchase money if he assigns the lease;11 or granting the use to the lessor the use of roads.12 OBLIGATIONS ANNEXED TO OWNERSHIP BUT NOT AMOUNTING TO INTEREST OR EASEMENTS GENERAL PRINCIPLE Where a third person is entitled to the benefit of an obligation arising out of a contract and annexed to the ownership13 of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby but not against a transferee for consideration, and without notice of the right or obligation, nor against such property in his hands.

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Benefit of an Obligation Similar to the first part of s. 40, pt-II also provides that benefits of obligations of the contract arising in favour of a third party, can be enforced against a gratuitous transferee, and a transferee who takes the property with notice of the obligation. For this, there must be a right or obligation arising out of a contract and annexed to the ownership of the land for the purpose of its enforcement against a gratuitous transferee or a transferee with notice of the right or obligation.14 For instance, a contract to give rise to a right of pre-emption,15 to pay maintenance out of land,16 to pay an annuity out of a specific property,17 the right of a mortgagee to recover the mortgage amount,18 or a contract of sale19 create no interest in the land. At the same time, they create an obligation that is annexed to the ownership and can be enforced by a suit for specific performance against not only the transferor, but also against a purchaser for consideration with notice.20 Right of the Attaching Creditor As between a third party who is entitled to the benefit of an obligation attached to the ownership of the land and arising out of a contract and a creditor, the rights of the third party would take priority over that of the creditor. The right of the attaching creditor does not override the contractual obligation arising from an antecedent agreement for sale of the attached property,21 and even if the property is sold in execution, the beneficiary of an antecedent agreement can enforce specific performance of his contract against the auction purchaser.22 In Hamda Ammal v. Avadiappa Pathar,23 it was held that a sale deed that was executed prior to the attachment of the property before the judgment, even though registered subsequently, would prevail over this attachment. Antecedent Rights and Court Sales The section does not apply to a court sale and therefore, a purchaser at a court auction which is a transfer by operation of law, is not bound by the antecedent agreements.24 NOTICE Notice of antecedent agreements or contractual obligations can be actual or constructive.25 If the contract for sale is to a usufructuary mortgagee, i.e., a mortgagee who has the possession of the property, constructive notice of the obligations can be imputed on him.26 Similarly, if the transaction has been recorded in the books of the village, this would be sufficient to impute notice on him,27 and if the transferee claims that he is a bona fide transferee without notice, he would have to prove it.28 TRANSFER BY OSTENSIBLE OWNER

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Section 41. Transfer by ostensible owner.— Where, with the consent, express or implied, of the persons interested in immoveable property, 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:29 Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.30

OSTENSIBLE OWNER ‘Ostensible’ literally means ‘apparent’ or ‘seeming’. An ostensible owner is a person who apparently or seemingly appears to be the owner, though in reality he is not. He is a person having all indicas of ownership having being real ownership.31 He is different from a mere trespasser or a person in unlawful occupation of the property. His behaviour and conduct appears to be that of the owner of the property with the consent or conduct of the real owner.32 For instance, a woman owns the property and permits her husband to deal with it as if he is the owner. The husband’s name is entered into the revenue records for the purposes of paying the taxes, it is he who finalises whether and who should be inducted as a tenant in the property and the wife does not object to it. He can be called an ostensible owner, while the real owner is the wife. Similarly, on the death of a father, the son and daughter inherit the property. The daughter being married is living away and allows her brother to take all decisions with the property including that of payment of taxes, carrying major repairs, etc. In such a case, the brother would be an ostensible owner of the property, while the sister is the real owner. GENERAL PRINCIPLE This section enacts a rule of estoppel as against the real owner of the property who: (i) by his conduct or consent or otherwise makes the other believe that a particular person has all the powers over the property as that of the owner, including that of alienation; (ii) such person in fact is not authorised to alienate the property; (iii)he alienates it as an ostensible owner; (iv)the transfer is for value or consideration, i.e., it is not a gift; (v) the transferee acts bona fide and has taken reasonable care to ascertain that he is competent to transfer, i.e., the transferee does not have actual or constructive notice of the real facts; and Page 44 of 151

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(vi)the real owner would be prevented from disputing the validity of the transfer on the ground that the transferor was not, in fact, competent to do so. The principle underlying this section is that if two innocent persons are defrauded or cheated by one, who, after transferring the property of one without his consent, to another, is no longer present, and the two persons enter into litigation with respect to the property transferred, then out of these two apparently innocent persons, the one who, by his conduct or consent enabled the fraud to take place, will suffer. For instance, A and B are two brothers. B allows A to not only manage the property, but A also takes all the decisions relating to the property, even in public dealings with respect to it. A sells the property to C. A, though was not permitted to sell it without the consent of B, who was the real owner of the property, was able to commit this fraud only because B permitted A to do so, through his own conduct. B files a case to vitiate the sale on the ground that it was his property, and A was incompetent to sell it to C. Before the court there are two seemingly innocent parties; B, whose property has been sold without his consent by a person whom he had allowed to control and treat the property as the owner and C, who has paid consideration to purchase the property from a person who was held out as the owner. B will have to make way for C, as it was due to his conduct only that A was able to carry this fraud, while C had purchased it after making reasonable inquiries as a prudent person. In Niras Purve v. Tetri Pasin,33 a husband was the owner of the land. He effected a mutation in the revenue records of the same in favour of his wife, and shortly thereafter went on a pilgrimage. Meanwhile, the wife sold the land to C as an ostensible owner. C made due inquiries and paid the consideration. As the land was subject to a mortgage, C paid the loan and redeemed the mortgage. The husband on his return could not reclaim the land as he, by his conduct, had held out the wife as an ostensible owner. Illustrations of Ostensible Owner A benamidar,34 a wife when the husband purchases property in her name35 or allows her to control it as an owner,36 a brother in possession of sister’s share as well his own for 25 years with the revenue records showing his name as the owner with respect to the whole property,37 would be illustrations of ostensible owners. Similarly, where a widow was in sole possession of property, the real owners of which lived in another village and allowed her to treat the property as her own;38 a cousin of the widow who though the owner of half share was allowed by the widow to deal with the property as an exclusive owner,39 a mother who, with the implied consent of the son sells for necessity,40 brothers managing the property in which their mother also had a share,41 or father selling a patta which stood in the name of the son,42 would be ostensible owners. However, a menial servant,43 or a manager in possession44 even where the name of the manager appears in the Municipal House Register as the real owner,45 a professed agent,46 manager of an idol,47 a mahant,48 a Hindu widow,49 a manager of a joint family,50 a coparcenor,51 or a co-sharer52 in occupation of joint family property, even where the co-sharer Page 45 of 151

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permit one of them to manage the property,53 or a donor in possession of the gift deed but without any express reservation of the power of revocation of the gift, are not ostensible owners.54 Consent The possession and ostensible ownership must be with the consent of the real owner of the property. The real owner must also be capable of giving consent55 to the transfer and should have given it with free will.56 It would include a consent given on a mistake of fact57 but not one given on a misapprehension of a legal status.58 The transferor should be shown to have been the ostensible owner with the express or implied consent of the true owner but the transfer itself need not be with the consent of the true owner.59 The section therefore will not apply if the real owner does not give the consent, and had in fact challenged the occupation of the possessor. In Shafiquallah v. Samiulah,60 after the death of the owner, the property was in possession of his illegitimate sons, who, in law, were ineligible to inherit his property. The real heir filed a suit for claiming the possession of the property as per his entitlement under the laws of inheritance. However, the possessors retained the possession, entered their names in the revenue records and later sold the property to a third party, C. This sale was effected after the rightful heir had already filed the suit claiming possession of the property. The suit was decreed in favour of the heir. The mortgagee claimed the benefit of s. 41 but his claim was rejected on two grounds: (i) the possession of the property was not with the consent of the real owners of the property, rather a suit had already been instituted challenging their possession; (ii) the mortgage was affected while the suit with respect to this property was already pending in a court. Thus, the transferee/mortgagee had become a transferee who took the property subject to the rule of lis pendens, and was bound by the decision of the court. Similarly, where the owner executes a power of attorney authorizing his attorney to sell the property which he did, for consideration through a registered deed, it was held that a suit for injunction was barred by s. 41.61 Implied Consent As aforesaid, the ostensible owner must be in possession of the property and holds himself out as the owner with the consent of the real owner. Consent neednot be express or in writing. It includes implied consent as well. Where, by conduct a person allows other to deal with his property as his own,62 it would amount to implied consent, but a mere silence would not amount to implied consent,63 more so when a person is not aware of his rights,64 or unless there is a duty to speak65 or it is to induce a belief that the party keeping silence has no rights.66 Negligence may amount to implied consent.67 Thus, where two pardanashin women having husbands, who knew business, allowed their brother to dissipate their share of the Page 46 of 151

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property, the brother is the ostensible owner with the implied consent of the sisters,68 but where pardanashin woman entrust the management of their property to the male members of the family who without their concurrence, deal with it, the consent cannot be presumed.69 Similarly, where the purchaser of a tenure allows his vendor to represent himself to be still the tenant and to continue to pay rent of the landlord, the purchaser is bound by a decree for sale in execution of a decree of rent against the vendor,70 but where the vendor pays rent as the landlord refuses to receive rent from the purchaser, there is no acquiescence and the purchaser is not bound by the landlord’s decree.71 Consent does not Include an Intention to Deceive It is essential for the application of this principle that the ostensible ownership is with the consent of the real owner of the property. However, this consent, express or implied, does not include an intention to deceive the transferee on part of the real owner; nor is it essential to prove the same.72 The real owner may be innocent in allowing the world at large to think that someone else is the owner, but if the transferee has made proper inquiries and has acted in good faith, his interests would be protected.73 ‘Transfer’ does not Include an Involuntary Transfer The term transfer under s. 41 refers to a transfer by the ostensible owner and applies to voluntary transfers by the act of parties. It does not apply to a transfer made by an order of the court,74 such as an auction sale.75 Transfer Includes a Partial Transfer It is not necessary for the application of the section that there must be a transfer of property by sale or exchange. As the term ‘transfer’ includes the transfer of an interest in the property, therefore it would equally apply to a mortgage;76 and an ostensible mortgagee is treated as an ostensible owner.77 Thus where a person effects a mortgage by conditional sale with the help of two separate deed; one a sale deed and the other a reconveyance deed but keeps the latter to himself and the mortgagee, after a lapse of 42 years, sells the property to the transferee, the principle stated herein applies and a suit for redemption by the mortgagor will fail.78 A transferee from a Hindu widow possessing only a life estate79 can take the plea of ostensible ownership only during her/his lifetime,80 but not against the claim of a reversioner.81 Transfer for Consideration The principle protecting a transferee applies only where the transfer is for consideration. A gratuitous transferee is not protected. Thus the principle does not apply in case of gifts and other transfers effected without any monetary consideration.

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Transferee must take Reasonable Care What is absolutely essential to show is that the transferee had taken such reasonable care82 as an ordinary man of business would take.83 Even otherwise, there is always a duty imposed on an ordinary prudent person, and hence the transferee is expected to be vigilant and protect his own interests. Here, a duty is imposed on the transferee to make inquiries into the title of the transferor84 unless the title is very clear,85 and he cannot absolve himself by stating that he entrusted this duty to his solicitor86 or relied merely on the entries in the revenue87 or khewat 88 municipal and police registers.89 For evading the charge of wilful abstention from making an inquiry and consequently the imputation of a constructive notice, there should be some starting point of inquiry which would have led to some result,1 such as a discrepancy in the sale certificate between the description of the property by its name and delineation by boundaries,2 the possession of land by a person other than the owner,3 or where the transferor is the karta of a joint family,4 or where the present transferor has acquired the property through a Will and there is a possibility of other sharer being present5 or where the transferor was a Muslim, it should have put the transferee on to the inquiry as to whether there was a female heir also present.6 If there is no starting point of inquiry or clue to suggest that the transferor is not the real owner, there is no duty to inquire further,7 but if he makes inquiries and finds out the defect, yet proceeds to take the transfer in his favour, he will not be protected for want of good faith.8 Where the ostensible owner sells the property to the transferee but before it can be registered the real owner sells the same property to another person through a registered deed, the first transferee would not be entitled to the protection and registered deed would take priority.9 Proper Inquiries The transferee must show that he had made such enquires as a reasonable prudent man would have taken to safeguard his own interests. A finding on a question whether the transferee had made proper inquiries before the purchase is a question of fact,10 but from that finding it can be said that reasonable and sufficient inquiry was made by the transferee as to attract the application of the legal provision is a question of law,11 and unless such plea was taken in the pleadings and put in issue between the parties, the party cannot raise the plea for the first time in second appeal.12 Whether a transferee from an ostensible owner took reasonable care to ascertain that the transferor had power to make the transfer has to be determined with reference to the circumstances of the particular case; the test being whether he acted like a reasonable man of business and with ordinary prudence.13 However, the question whether that test has been properly applied in any particular case cannot be regarded as one of pure fact not open to review in second appeal.14 Transferee to Act Honestly and in Good Faith In order to protect his own interests, the transferee should not only act honestly and in good faith but must also establish that he made inquiries15 to confirm his faith.16 He cannot afford to Page 48 of 151

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ignore true facts17 such as a defect in title,18 or be guided by misconceptions. In an old case,19 a person purchased property belonging to a woman who was outcaste from the village due to her unchastity; with a belief that her interest in the property was forfeited. It was held that his rights were not protected for failure on his part to probe further. However if the purchasers act in good faith, and by the conduct of the other party a belief is induced in the mind of the purchaser that they have consented to the sale, the purchasers are entitled to protection.20 It is necessary that the transaction be a genuine one and not a sham transaction.21 The inaccuracy in the recitals describing the property cannot whittle down the effect of clear recitals in the documents about the property to be sold thereby.22 A subsequent transferee acting bonafide with reasonable care is protected even if the immediate purchaser had notice of ostensible ownership.23 Burden of Proof The burden of proving that the transferee was an ostensible owner is on the transferee who seeks the protection of this section. He has to prove that the transferor is an ostensible owner,24 or that it is a benami transaction.25 Besides this, he must also prove that he took reasonable care to protect his interest.26 However, the burden shifts on the other person if he alleges the existence of facts leading to a starting point of inquiry, which if pursued or investigated, would have led to the discovery of truth.27 In case there is an allegation by a person that the property conveyed to another person belongs to him, then it is he who has to prove it.28 The basic principle in law is that the rights of the legal owner should, prima facie., be protected unless he has done something to induce innocent purchasers or pledges into the belief that the immediate possessor is the true owner. Mere bona fide on part of the purchaser or the pledgee is not enough. He will have to prove that by some act or omission, the true owner has forfeited the right to recover back his possession. It is therefore incumbent upon the party resisting the claim of the true owner to adduce strict proof of the equities which have arisen in his favour or of the latches on the part of the owner, which have led him to advance his money.29 Transfer not Voidable Where the ostensible owner transfers the property, this section provides that the transfer shall not be voidable on the ground that the transferor was not authorised to make it; provided that the transferee had acted in good faith after taking reasonable care. The term ‘voidable’ does not mean voidable in its entirety. The principle applies where the whole transaction is not voidable.30 The purchaser acquires a title, which is voidable at the instance of the real owner, and until his purchase is avoided, he can deal with the property.31 TRANSFER BY PERSON HAVING AUTHORITY TO REVOKE FORMER TRANSFER

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Section 42. Transfer by person having authority to revoke former transfer.— Where a person transfers any immoveable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.

Illustration A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value. The principle underlying this section is that where there is a transfer of property under which the transferor reserves to himself a power to revoke the same under certain specified conditions, if after the first transfer, he transfers the same property to another person; the first transfer is automatically revoked. It also specifies that the transfer and the power of revocating the same are inseparable in such cases. If the power of revocation is subject to a condition, the transfer is also subject to the same condition.32 UNAUTHORISED PERSON SUBSEQUENTLY ACQUIRING INTEREST IN THE TRANSFERRED PROPERTY

Section 43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, 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. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

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Illustration A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him. GENERAL PRINCIPLE The rule incorporated in this section governs transfers where the transferor, to begin with, has no capacity to transfer the property, yet has entered into the transaction with a misrepresentation with respect to his title to the property. He makes the other party act on this representation, and then acquires a good title to the same property in future. In such cases if the contract is subsisting and the property is available, then it gives the transferee the option to either go ahead with the transfer, or to rescind the same.33 If the transferee still wants the transferor to perform his part of the contract, he can exercise his option to validate this transfer that was imperfect to begin with and the transfer shall become valid on the exercise of such option by the transferee.34 Here, the willingness of the transferor to go ahead with transfer is immaterial and it is solely on the wishes of the transferee, which he has to show by exercising the option that the transfer shall become valid. It can also be explained in the following words, i.e., where a person having a limited interest in the property transfers a larger interest to the transferee on a representation, and subsequently acquires the larger interest, the larger interest passes to the transferee35 at the option of the latter. ANALYSIS OF SECTION 43 The essential ingredients of s. 43 are as follows: (i) the transferor makes a representation to the effect that he is competent to transfer a particular piece of immovable property; (ii) this representation may be erroneous or fraudulent; (iii)this representation is not true; (iv)the transferee believes or is made to believe that the representation is correct and the transferor is competent to transfer the property, i.e., he does not know the defect in title or lack of capacity on part of the transferor; (v) the transferor professes to transfer the property for a consideration; (vi)the transferee acts on the representation and enters into the contract;

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(vii)

the transferor subsequently acquires competency to transfer the same property;

(viii) the contract is subsisting; (ix)the property is still with the transferor, i.e., he has not transferred it to a bonafide purchaser who takes it without actual or constructive notice of this earlier contract between the transferor and the transferee; (x) the transferee exercises the option to signify, his intention to go ahead with the contract; The transfer shall become valid and enforceable in a court of law. Rule of Estoppel Under Common Law This rule of estoppel is based on two common law doctrines—the doctrine of estoppel and the equitable doctrine. Following the doctrine of estoppel by deed, it prevents a person who promises more than what he can perform from claiming his incompetency as a legitimate excuse to avoid his liabilities in a situation when he acquires competency to fulfill his promise, and following the equitable doctrine, such a person is compelled to make good his promise when he becomes competent to perform it. In fact, without any further act of his, the transfer becomes good the moment he acquires competency to do so. This competency feeds the estoppel immediately. Under common law, if a person misrepresents to another that he is competent to convey a good title, professes to do so for consideration, and, making the other act on this representation, enters into a contract with him, on the transferor subsequently acquiring a good title to the property, the property instantaneously passes to the transferee. Common law, therefore, does not require the transferee to exercise the option; nor does it give any opportunity to the transferor to later mislead the transferee and introduce in the scenario, a bona fide purchaser for consideration, so as to defeat the rights of the original transferee. The only condition is that the contract should have been subsisting. In such cases, nothing else has to be done by the transferee. The transfer in his favour will be perfected the moment the transferor becomes competent to do so. Representation, Fraudulent or Erroneous The representation under the Act may be fraudulent or even erroneous. Whether it is erroneous is a question of fact.36 It may involve a case where the transferor genuinely believed that he has the competency to transfer the property. Even in such cases, if due to his representation, for which he is not maliciously responsible, the other party has been made to act on it, s. 43 would apply. On the other hand, it can also involve cases where he deliberatively and with full knowledge of his incompetency and with a fraudulent motive, misleads the transferee and convinces him of his competency. What should be noted is that the original enactment applied only to erroneous representation based transfers, and the rule of feeding the grant by estoppel did not apply in case the representation was fraudulent. In 1929, the term ‘fraudulent or’ were Page 52 of 151

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inserted by the Amending Act, 1929 (20 of 1929) to extend the application of s. 43 to these cases as well. No Application of Rule in Absence of Representation by the Transferor Equity requires an erroneous37 or fraudulent38 representation from the transferor that he is competent to transfer the property.39 In absence of representation, the doctrine does not apply.40 However, that does not mean that if the transferor is silent about his capacity, when there is a duty to speak, he can escape the applicability of rule of estoppel as against him. What is material is that the transferee must be misled. If there is no representation by the transferee, it means that the transferee was not misled but actually knew about the defect in the title. It is only when the transferee is led to believe of absolute interest or title on part of the transferor and acts41 on that representation, that he is entitled to take advantage42 of the fact that the transferor subsequently gets the full interest43 or becomes the owner of the property.44 It connotes that the transferee is not aware of the facts and acts on the representation45 as there would be no estoppel if the truth is known to both the parties.46 Question of knowledge is very material and the other party must be given the chance of raising its defence if and when the doctrine is pleaded.47 Representation may be express or implied.48 It can be by word of mouth or by a document.49 It is implied when the law makes it an implied term of the transfer.50 Where a person sold the property as an agent of the widow, and later became her heir, the doctrine did not apply, as there was no erroneous representation,51 but where the husband transfers the property of his wife without taking her consent and she challenges its validity in the court but dies during its pendency and the husband inherits the same as her legal heir, the Apex Court held that if a person pretends to be the owner of the property and subsequently becomes the owner, the transfer by him conveys a good title.52 Transfers in Absence of Representations Though the section speaks of erroneous or fraudulent representations, there may be a case where there is a transfer by a person who is incompetent to transfer the same, but he does that without making a representation, yet at the same time, the transferee is not aware of his incompetency. In such cases also, the presumption is that when a person says ‘he will transfer the property’, it means that what he is conveying to the other is that he is authorised to do so. Even in such cases, the rule of estoppel will operate against the transferor, and on attaining competency, he will be stopped from denying his obligations under the contract.53 In Viraya v. Hanumanta,54 three coparceners held the property jointly. One of them, A, sold the property to B, an alienee, but failed to deliver it as the transfer was effected without the consent of the other coparceners. B filed a suit against A for enforcement of the contract. During the pendency of the litigation one of the other coparceners died, and A’s share in the property increased to one half. The court held that B was entitled to half of the property that was the share of A.

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In Rustom Ali v. Abdul Jabbar,55 a Muslim transferred a field belonging to his sister, S, to his wife in lieu of her dower. It was, therefore, a transfer by a person who neither had the title to the property nor had the authorisation to transfer the same. S, who was the real owner of the property sold it to another person, X. The husband however, acquired a good title to the property by purchasing it back from X after some time. The Calcutta High Court held that the wife was entitled to the field under the equity doctrine. Representation by the Joint Family Members Under Hindu law, the karta is the head of the joint family and represents the family in all matters. Yet he has limited powers of alienating the joint family property. If he exceeds his powers, the other coparceners can challenge the validity of the alienation. Where the head of a joint family mortgages joint family property representing that he has a right to do so, he is bound to make good his representation to the extent of the share which comes to him afterwards on a partition.56 Similarly, where the father of a joint family, which consists of himself and his two sons, sells family property representing it to be his self-acquisition and one son dies when the suit filed by the transferee for possession was pending in the court and he succeeds to the share of the son, the transferee is entitled to the benefit of such succession.57 Where a member of joint family represents that he is a separate member and mortgages his share in the undivided property, the mortgagee’s lien would be protected on a subsequent partition of the property and allotment of his separate share on such share.58 Representation Depicting a Lack of Knowledge on part of Transferee The phrase ‘transferor makes a representation, and the transferee acting on that representation’ shows that the transferee does not know the defect in the title of the transferor. Thus, s. 43 does not cover cases where the transferee already knows that the transferor does not hold either a good title to the property or is not authorised to transfer the same59. He is expressly made to believe other wise. The expression ‘fraudulent or erroneous’ shows that lack of knowledge on part of the transferor about his own incompetency is immaterial. Even if the transferor genuinely believes himself to be competent to transfer the property, it would not make any difference; and he cannot ignore such a transfer where he made a representation erroneously, but made the transferee act on the same. For instance, on A’s death, his son, thinking that he had become the owner of the property, professed to transfer this property to X. s. did not know that the father had executed a Will in favour of his wife, totally disinheriting the son. W later died and s. inherited the property in his capacity as the heir of the mother. The transfer now shall be valid at the option of X. Similarly, A’s father owns a property, and A professes to transfer the same to X. X knows that the property belongs to the father, but he also knows that the father is very ill and may die soon. He agrees to purchase the property. Here, X is not misled by s. as he knew that s. did not possess the title to the property. Thus, while lack of knowledge about the incompetency on part of the transferor is not of any consequence, lack of knowledge on part of the transferee Page 54 of 151

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will alter the situation fundamentally. If he knows the defect, he cannot take the benefit of s. 43. The time at which lack of knowledge on part of transferee is material, is the time of entering into contract for the transfer of the property. If the transferee subsequently acquires the knowledge, that he was made to act on a false representation, he is still entitled to the protection of s. 43. For instance, A represents to B that he can transfer the house X. X in fact belongs to his father and the father had allowed him to live in it. The permission did not extend to selling of the property. B, who did not know that the property belonged to A’s father enters into the contract and gives consideration. In this case, as B did not possess the knowledge at the time of the contract, he is entitled to take the benefit of s. 43, if later, A acquires competency to sell the house. However, in the same situation, whether A genuinely believed him to be competent to transfer the house and represented to B without any fraudulent motive is immaterial, as s. 43 covers both erroneous or fraudulent cases, but if B knew that the house in fact, belonged to the father, and A is merely a resident of the house and incompetent to sell it, then B would not be in a position to save the contract by exercising the option at the time when A acquires competency to perform it. Knowledge may be Actual or even Constructive Knowledge on part of the transferee with respect to the defect in title of the transferor need not be actual knowledge. If the circumstances are such that as a reasonable, prudent person, the transferee, to safeguard his own interests had made sufficient inquiries that he ought to have made, or had been vigilant and upon doing so, he could have detected the lack of title, he would be deemed to have constructive notice of the lack of title, and s. 43 would not apply. As a prospective purchaser he ought to have made reasonable inquiries that a normal prudent person would have made. If he fails to make such inquires, he would be guilty of either gross negligence or willful abstention from making an inquiry, and constructive knowledge with respect to defect in title would be imputed on him. As the consequences of imputation of constructive notice are identical to the consequences that emanate if a person actually knew about it, he would lose the right to perfect the transfer once the transferor acquires the competency to do so. The Supreme court, in Kartar Singh’s case60 has overruled a plethora of cases,61 including Lord Halsbury’s famous statement,62 wherein it was held that s. 43 does not impose upon the transferee, the duty to take care. In Kartar Singh v. Harbans Kaur,63 a Hindu woman executed a sale deed of the lands belonging to her minor son in 1961. The son on attaining majority in 1975, filed a suit to the effect that this sale was not binding on him, and was void. The court passed a decree that this sale, executed by the mother of the properties belonging/owned by her minor son was void, and directed that the possession of these properties be restored to the son. Before the son could take the possession of the property, he died, and the mother as a class I heir succeeded to the property. The transferee, X, claimed the benefit of s. 43 and when the remedy was refused by the high court, went to the Supreme Court in appeal. The court held that for the application of s. 43, two conditions must be satisfied. First, a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and Page 55 of 151

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in the purported exercise of authority professed to transfer such property for consideration. Secondly, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist. As the primary distinguishing factor between the application of s. 43 and s. 6(a) is knowledge of the lack of title or incompetency on part of the transferee, the court here tried to examine whether the transferee in the present case had knowledge of the fact whether, the mother was competent to transfer the property of her son. The court said: The material time at which the knowledge has to be proved is the time of the conclusion of the contract. When we analyse the issue as to whether the transferee who is now seeking the beneficial protection of Section 43, had knowledge or notice of the incompetency of transferor or not, we must take note of the fact that even constructive notice on his part would bring the case under Section 6 (a). If by making some inquiries or verifying certain facts, as a normal reasonable prudent person, the transferee could have detected the incompetency of the transferor to transfer the property, but he failed to do that, law would impute constructive notice of the same on him, and as the consequences of actual and constructive notice are identical, in case of imputation of constructive notice also, the plea of misrepresentation, erroneous or fraudulent would not be accepted by the court. In such a case, Section 6 (a) would be applicable under which this transfer would be considered void, and Section 43 will not apply.

Here, it is pertinent to note that when the mother transferred the property belonging to her son, the marginal note on the sale deed mentioned that the land had been acquired by her and by her minor son by exercising the right of pre-emption, and that she was executing the sale deed in respect of her own share and acting as the guardian of her minor son in so far as his share is considered. Thus, the fact that she was acting as the guardian and the owner was in fact a minor, was apparent from a bare reading of the sale deed. In law, a guardian is not competent to transfer the properties of a minor, unless there is an authorisation from the court. The fact that she was a guardian and also acting as one, was the starting point of inquiry, and the transferee should have probed further. As a reasonable prudent man, he was expected to enquire whether on her own, the mother, as the guardian, was competent to alienate his share. The second requirement is that the contract should be subsisting at the time of the claim but here, the court held that as right at the inception, the contract was void, because the transferee ought to have known about the incompetency of the transferor this void contract cannot be deemed to be subsisting at the time, when the mother due to inheritance acquired competency. Thus, according to the court, the transferee here knew the fact that the mother was not competent to effect a valid transfer and s. 43 would have not application. The litigation, which took 33 years, culminated later, with the Supreme Court pronouncing the verdict, that the transferee cannot acquire a valid title to the property because he was deemed to have knowledge of the defect in title in the first place. Transfer must not be Otherwise Prohibited For the validation of the transfer made by an unauthorised person under a representation, this contract in the first place should not have been against any law in any form whatsoever, i.e., not only the parties should be competent to contract, but the purpose of the contract should be lawful,64 and not opposed to public policy65 or to defeat the rights of creditors or a provision of Page 56 of 151

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law,66 etc. Thus if the transferor’s incompetency was owing to his minority67 or insanity,68s. 43 would not confer an option in favour of the transferee to validate the transfer on the minor’s attaining majority or curing of insanity, as this is a statutory incompetency, that was appended to the minor or an insane person, that prohibited him from transferring the property. Similarly, if a particular piece of land has been declared by a statute to be specifically inalienable, such as Bhumidari land,69s. 43 cannot apply to such a situation.70 However, where the property was requisitioned by the military, and a lessee assigned his interest in this property conditional upon the property being de-requisitioned by the military, the court held that after the property was so derequisitioned and the transferee acquired competency, he was required to perform his part of the contract under the assignment.71 Transfer must be for Consideration An essential factor to be considered in transfers by unauthorised transferors on misrepresentations, and the option available under s. 43 is, that these transfers should be for consideration.72 Though it is not necessary to show that some monetary consideration has already passed from the transferee to the transferor, but the transfer in essence is one involving consideration, and there is a liability on part of the transferee to pay it. Thus, s. 43 does not apply to gratuitous transfers like gifts, etc.73 Subsequent Acquisition of Interest by the Transferor The transferee is entitled to the benefit of this doctrine only when the transferor subsequently acquires an interest in the property that he originally represented as his.74 If the transferor does not acquire a further interest in the property transferred,75 or if such further interest is acquired not by the transferor but by his successor in interest,76 or where the heirs of the transferor acquire property in their own right and not as heirs of the transferor,77 this section has no application. For instance, A transferred property belonging to his wife, representing to X that he is competent to transfer the same. His wife made a Will of her property in favour of her son S. A died and then his wife died, and the son took the property under the Will. The transfer would not be valid at the option of X, as the heir had acquired the property in his own right. Contract Subsisting An essential condition for the application of s. 43, to the transfers by unauthorised transferors brought about by misrepresentations is that for the validation of such transfers at the option of the transferee the contract must be subsisting. It should not have been rescinded or otherwise brought to an end by the act of the parties. For instance, A, erroneously makes a representation to B, that he is competent to transfer a house X. The house originally belonged to his father F, but A did not know that F had bequeathed the house to his mother M, and she was the sole owner. B pays consideration, but later discovers that A was not the owner, and therefore not competent to transfer it. He Page 57 of 151

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rescinds the contract and asks for his money back. A pays him the entire consideration as per the terms of the contract. Two days later, M dies and A, as her sole heir, inherits the house. As the contract has already been brought to an end, it is ‘not subsisting’ and B cannot exercise his option to validate the transfer. On the other hand, in the same example, if after the transferee becomes aware of the defect in title, he chooses to wait, i.e., does not rescind the contract or sue for damages, and the contract is still subsisting when the mother dies, and A becomes the owner of the property, then B can exercise his option for validation of transfer. If he so wants, A would have to transfer the property in his favour and he cannot take the plea that at the time he had entered into the contract with B, he did not possess the title to the property. Thus, for the application of the doctrine, the original contract must be subsisting in order for the transferee to exercise the option. Where the transferee obtains a decree on the contract78 or if the property has been sold,79 or the charge has been assigned80 the doctrine would have no application. However in case of mortgage, a decree alone will not put an end to the contract81 as the mortgagor is entitled to redeem till the ultimate sale.82 Application, Personal in Character The application of this section is personal in character with respect to the transferor and does not apply as against any other person, who may acquire this property in his own right or against any property that the transferor may acquire in future. The estoppel applies only against the transferor and with respect to the very property that was initially the subject of the contract. For example: (i) Representing that he is competent to sell the property, A sells a house belonging to his father to B. B discovers the defect in title but chooses to wait. A dies during his father’s lifetime. On the death of the father, his house that was the subject matter of the contract was inherited by A’s son, in his capacity as F’s heir. B cannot exercise his option to validate the transfer because this option can be exercised only against the transferor, and not against the successor in interest.83 (ii) In the above illustration, if instead of A dying during the lifetime of his father, suppose his father sells the property to his friend X, B will have no remedy. But if later A purchases the same property from X for a consideration, B would be empowered to exercise his option to validate the transfer in his favour as against A. In short, if the transferor acquires the competency or interest, the option can be exercised; if he does not, it cannot be exercised, and if his heirs get the property surpassing him, such as under a will by the owner, or on his death, again the transferee would be without any remedy.84 (iii)A sells his father’s property to B representing that he is authorised to transfer it. When B discovers the defect in title, he prefers to wait as the father was very old and sick. On Page 58 of 151

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the death of the father, it was discovered that the house was bequeathed to A’s son S. B cannot exercise the option against S. The option is not only to be exercised personally with respect to the transferor, it can also be exercised only against that property that was the original subject of the contract. For example: (i) A coparcenary consists of father F and a son S, who together owned two fields, X and Y. In addition, F also owned Z as his separate property. S contracts with C to sell Z, that belonged to F. Later a partition took place, whereby the S got the property X. C cannot proceed against X, as this was not the subject matter of transfer (ii) A owns three properties X, Y and Z. His son, without his permission, contracts to sell X to B. X is mortgaged during the lifetime of A, by A himself. As he was unable to repay the loan, X is sold through a court auction. Then A dies, and his son inherits all of his properties as his heir. The transferee B cannot exercise his option against his other properties. Option of the Transferee The doctrine provides an additional remedy to the transferee besides a claim for damage, and enables him to get the property itself.85 The transfer shall become valid only when the transferee exercises the option to validate it and is capable to do the same. ‘At the option of the transferee’ means that the validation of the transfer depends purely on the transferee’s will and the transferor cannot force a transfer on him, after he acquires competency. If the transferee so desires, he can avoid this transfer which in the first place, was brought about by a misrepresentation. However, there is no automatic validation of the transfer,86 as no rights are vested in the transferee from the inception of this transfer.87 The option must be exercised by the transferee. There is no specific form of exercise of option and any indication is sufficient. It can be done verbally, through sending a notice to the transferor to execute a transfer deed in favour of the transferee or even by instituting a suit in a court of law to that effect. It is not necessary that a demand should be made.88 In a nutshell, the law does not provide any specific mode of exercising the option,89 but the intention should be clear. Transfer Valid at the Option of the Transferee The transfer becomes valid when the transferee exercises the option and the title of the transferor becomes perfect.90 Where the Official Receiver transfers property before it vests in him, the implied covenant will be treated as erroneous representation, and the title of the purchaser would be complete as soon as the property vests in him.91 Similarly, where a partner sells the property of a firm in his right and subsequently on the dissolution of the firm is allotted the same property, the transferee gets the benefit of such allotment.92 When the holder of sir land transfers land representing that he is auhorised to transfer it, before he could obtain the certificate of bhumidari rights without which he was incompetent to transfer the same, but Page 59 of 151

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had deposited money to obtain it, and acquired the same later, the transfer is valid at the option of the transferee and the son of the transferor cannot challenge the validity of the sale.93 Similarly, where on the death of the father the land is inherited by two sisters, and one of them having exclusive possession sells the same to the transferee, the transferee is entitled to get the benefit of the doctrine on the death of the other sister.94 Where a Hindu widow sells the property of her husband after five years of his disappearance and the transferee sues for possession after seven years95 or where lease or sale of the property is effected by one of the two owners96 or two of the three owners97 with their subsequent acquisition of full ownership, the transferee on the exercise of the option would be entitled to the interest. Property should be Available with the Transferee The second condition for validation of such a transfer that is based on a misrepresentation is that not only the contract should be subsisting, and the transferee willing to exercise the option, but the property must be available with the transferor. If the property is transferred by the transferor to another person, even before the transferee can exercise the option to validate the earlier transfer, the remedy of validation of transfer will be lost to the transferee, provided that the second transferee takes the property for consideration and has no notice, actual or constructive about the existence of the first contract. For instance, A represents to B that he is competent to transfer a land X, which in fact belongs to his father. B acts on that representation and furnishes a consideration of Rs. 10 lakhs towards it. B later comes to know about A’s lack of title, but prefers to wait. A became the owner of the property on his father’s death. While B was contemplating the appropriate action to be taken, A sold the land to C, who as a bona fide purchaser, bought it without any notice of B’s claim over it. The only remedy that B has now is to claim compensation, damages or his money back. But he would lose all claims over the property as before he could exercise his option to validate the transfer, the property had already been transferred to a bona fide purchaser for value and without notice. The reason is that till the option is exercised by the first transferee, the validation of the transfer will not take place. Till the ownership of the transferor is not affected at all, he remains competent to transfer the same in favour of anyone. However, once the transferee exercises the option, the transferor has to transfer the property to the original transferee, and if after that, he sells it to somebody else, the new entrant in the scenario will take the property subject to the rights of the transferee. It is only a bona fide transferee for consideration who takes the transfer in his favour before the option can be exercised by the transferee, who can defeat the rights of such transferee. Therefore, the option must be exercised without any delay by the transferee in order to prevent the property from passing into the hands of a bona fide transferee. Bona Fide Transferee As aforesaid, the validation of the transfer depends on the exercise of the option by the transferee and in the situation when the property is available. If the property is transferred before the option can be exercised by the transferee to another person, who takes it for consideration and without actual or constructive notice of the rights of the earlier transferee Page 60 of 151

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over it, the rights of the earlier transferee will be defeated. Thus, in order to defeat the right of the first transferee, it must be proved that: (i) first, that the second transfer was for consideration. If it was a gratuitous transfer, i.e., by way of gift, the right of the second transferee would not be protected. (ii) secondly, the subsequent transferee should not have actual or constructive notice of the first contract. If actual or constructive notice on his part can be proved, then his rights over the property would be subordinate to the first transferee and his interests in it will not be protected. The doctrine therefore, does not impair the right of transferees in good faith for consideration, without notice of the existence of the said option,1 as the transferee cannot exercise his option with respect to the after acquired property against a bona fide purchaser without notice.2 However if he is aware of the first transaction he would be deemed to have notice of the option.3 APPLICATION OF THE DOCTRINE The doctrine of feeding the grant by estoppel compels a man to perform when the performance becomes possible.4 Transfer of a non-transferable holding and the subsequent removal of restriction;5 mortgage of a ghatwal land by zuripeshgi lease and the subsequent grant of permanent lease of the land;6 mortgage of a restrictive tenure, the restriction later removed;7 transfer of a land to the wife that stood in the name of a third person but the original transferor acquiring the land later;8 assignment of an interest in the lease which was contingent upon the property being derequisitioned by the military authorities and the property was subsequently derequisitioned,9 would require the transferor to make good the original transfer. TRANSFERS The doctrine not only applies to sale but also applies to a mortgage,10 lease,11 charge,12 and exchange,13 but does not apply to a case where the sale was made through the court14 at the instance of an execution creditor, and was therefore compulsory,15 or where the transfer was forbidden by law16 or was contrary to public policy.17 Transfer by a minor,18 or a lunatic,19 or where the transfer could be effected only with the prior permission of the collector and no such permission was obtained,20 or where there is a statutory prohibition on the transfer,21 do not qualify for the application of this doctrine. The doctrine applies when the transferor interest is enlarged by acquisition of a right of preemption,22 or the removal of a restriction on alienation,23 or by discharge of an encumbrance,24 or of a prior mortage,25 or when a maufi tenure ripens into a proprietary right.26 No Application of the Doctrine in Absence of Transfers

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Where no grant or interest in immovable property is involved, the doctrine of feeding the grant by estoppel would not apply.27 Where the DDA auctioned a plot of land holding out it to be a developed plot, which was set aside by the high court on the ground that the plot was situated in a green area, the acceptance of the bid and the deposit amount of 25 percent will not amount to transfer.28 Since the disability attached to the plot of land ceased to exist on the date of petition, the DDA would not be compelled to finalise the sale and delivery of the plot after 14 years of the initial transaction will have no application to this case.29 The doctrine also does not apply in cases where the transferor has acquired interest not in the property which is the subject matter of the transfer, but in some other property.30 Difference between English Law, relating to Feeding the Grant by Estoppel, and Indian Law English law, with respect to feeding the grant by estoppel, is different from Indian law in three major aspects. Under English law, if a person professes to transfer an interest in the property that he does not possess, and the party acting on that representation enters into a contract with him at the time, when the transferor subsequently acquires the interest, the benefit of his acquired interest automatically passes to the transferee or the grantee. It is based on the doctrine, that where a person promises more than what he can perform, he must deliver the same, when he acquires the capacity to perform. Feeding the grant by estoppel means the grant by an incompetent person, who makes the other believe that he is competent. The estoppel is fed, when that incapacity is removed, and he is estopped from taking the plea of his incompetency at the time of the initial transfer. Thus, the differences between Indian and English law with respect to rule of estoppel are as follows. (i) Under Indian law, the grant is not automatically validated. For its validation, the option must be exercised by the transferee, for which again three conditions should be fulfilled, (a) the contract should be subsisting, (b) the property should be available and (c) the transferee should be willing to go ahead with the transfer. (ii) Under English law, the right to exercise the option cannot be defeated by a bona fide purchaser without notice. However, under English law, as the original transfer is perfected the moment transferor acquires competency to transfer the property, and the

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transfer is validated instantaneously, the scope of property not being available due to the chances of the entry of a bona fide transferee for consideration does not arise.31 (iii)Under English law, the only condition for validation is that the contract should be subsisting, and the moment the transferor acquires competency, the transfer is automatically validated, without the need for any other action on part of either the transferor or the transferee. The Rule of Feeding the Grant by Estoppel under Section 43 and Spes Successions under Section 6 (a) The rule of feeding the grant by estoppel has to be compared and contrasted with the rule of spes successionis provided under s. 6(a) of the Act. They appear to relate to similar kinds of situations but with different consequences. In fact not only do they relate to different situations, they are also inherently different. The illustration to s. 43 says: A, a Hindu who has separated from his father B, sells to C three fields, X, Y, and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying, A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him. This case,32 to begin with, apparently resembles a transfer of spes successionis. When A sold Z to C, he had only a spes successionis in it, i.e., a bare chance of inheritance. But he having subsequently inherited it; C became entitled to it. However, both s s. 43 and 6(a) are fundamentally different, as the former relates to a situation where a person transfers a hope and expectancy, and the fact that it is a hope and expectancy is within the knowledge of the transferee as well. He has not been misled into believing something else. He knows that the transferor does not have a present or subsisting title to the property. However, under s. 43, there is a misrepresentation by the transferor to the transferee about his competency to transfer the property. This representation may be erroneous or even fraudulent, but the fact remains that there is not only a misrepresentation but the transferee acts on that representation. He is made to believe that the transferor is capable to convey a good title. Further, as the transfer is for consideration, it also means that this transferor, who has misled the transferee, has taken a monetary benefit under this transfer. Therefore, if during the subsistence of the contract this transferor, who had initially misled the transferee into believing that he has a good title to the property and he is capable of conveying the same, infact acquires a competency to do the same, the transfer shall be valid at the option of the transferee. The transferee, therefore, is given a chance to either go ahead with the transfer by exercising an option to that effect, or to rescind the same. If he chooses to go ahead with the transfer, he has to indicate his willingness to do so and the transfer shall become valid and enforceable in a court of law. For example, in the above illustration when A becomes the owner of the property, C may indicate to A about his willingness to go ahead with the transfer and if A refuses or fails to do Page 63 of 151

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so, C may file a suit for specific performance of the contract, and with the help of the court require A to deliver Z to him. But in the same illustration, if C knew that A is not competent to transfer Z in the first place, then upon A’s refusal to perform the contract, he would have no remedy, as this transfer would have been covered under s. 6(a) and would have been void. Distinction between Spes Successionis and the Rule of Estoppel under Section 43 The primary differences between s. 6(a) and s. 43 are as follows: (i) Section 6(a) enacts a rule of substantive law, while s. 43 incorporates a rule of estoppel. (ii) Under s. 6(a), the fact that it is a transfer of spes successions is within the knowledge of both the transferor as well as the transferee. There is no misrepresentation from the side of the transferor about his competency to pass a good title in present to the transferee. However, under s. 43, due to an express representation, fraudulent or even erroneous, the transferee, at the behest of the transferor, is assured of a good title. Section 43 is very clear of the fact that its application will cover only those cases, where due to the making of a representation by the transferor, that he is competent to transfer a piece of property, the transferee has been expressly misled. The transferee had no knowledge about the defect or lack of title on part of the transferor, and due to the express representation coming from the transferor, he is made to believe in the competency of the transferor to transfer the property. (ii) Section 43 applies only in those cases, where the transfer is for consideration. It does not apply to gratuitous transfers. It applies only in those cases where despite a misrepresentation, the transferor, either takes or seeks to take a monetary benefit from the transferee. It therefore would not apply to cases where a person transfers the property by way of gift. On the other hand, the prohibition under s. 6 (a) applies to all kinds of transfers, irrespective of whether they are for consideration or gratuitous transfers. Thus a gift of property that a person hopes to inherit is also void. (iii)The doctrine of spes successionis applies both to movable and immovable properties, while the rule of estoppel under s. 43 applies only in case of transfer of immovable property. (iv)The status of a transfer under s. 6(a) is void in its inception, i.e., void ab initio, However, under s. 43, the transfer is voidable at the option of the transferee provided two conditions are satisfied. First, that the contract should be subsisting at the time the transferor attains competency to transfer the property, i.e., it should not have been rescinded or brought to an end and secondly the property should be available with the transferor. It should not be in the hands of a bona fide transferee for value.

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Important Cases In Jumma Masjid Mercara v. Kodimaniandra Deviah,33 a Hindu joint family consisted of three brothers Br 1, Br 2 and Br 3. In the year 1900, they collectively executed a usufructuary mortgage of the joint family property in favour of X. There was a litigation, and a compromise was arrived at with respect to it, according to the terms of which for a period of 20 years, i.e., till August 1920, the mortgagee was entitled to retain its possession, and after that the property was to revert back to the family. The family chart was as follows. Out of the three brothers one died unmarried, and the other two died one after another, leaving behind their widows W 2 and W 3, but no children.

They had a sister, who had three grandsons A, B and C, who were the reversioners to their property. A was to get one-half of the property and B and C, one-fourth each, but on the death of the two widows. Till the death of the widows, the interest that they had in the property was a mere spes successionis, that according to s. 6(a) is untransferable. However, they represented to the transferee that this property belonged to the joint family and after the death of W 2, it devolved on them as reversioners, and hence they were competent to transfer the same. They did not disclose the fact that W 3 was still alive, and her very presence prevented them from getting a title to the property. The transferee on such representation of the reversioners gave consideration, and filed a suit for possession of property, when the same was not delivered to them. W 3 resisted this suit on the ground that till she was alive, no one else had a right to possess the property, as these were her husband’s self-acquisitions and she, as his legal heir was the owner of the same. The subordinate courts, the district court and even the judicial commissioner accepted her arguments. But before the second appeal at the level of the judicial commissioner could be finally disposed of, W 3 died and the transferee applied before the revenue authorities for transferring the patta for the property standing in the name of W 3 to his name on the strength of the sale deed executed by the reversioners. At this time, Jumma Masjid intervened and contended that first, the whole of the properties vested in them on the strength of a gift deed executed by W 3 in their favour, and secondly, they alleged that one of the reversioners, A, had relinquished his share in the property in their favour for a consideration of R s. 300. The revenue authorities however rejected the claim of Jumma Masjid, and the possession of the transferee was upheld. Jumma Masjid filed a case for recovery of possession, that went ultimately to the Supreme Court. The decision that came in favour of transferee was pronounced 42 years after the sale deed was executed in his favour by the reversioners.

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The primary issue before the court was whether a transfer of property for consideration made by a person who represents that he has a present and transferable interest therein, while he possesses in fact only a spes successionis, is within the protection of s. 43 of the Act. The contention of Jumma Masjid was that s. 43 must be read as subject to the provisions of s. 6(a), that specifically prohibits the transfer of spes successions and therefore s. 43 should apply only in cases other than those covered under s. 6(a). The court rejected this argument, and drew a distinction between s. 6(a) and s. 43, pointing out that they do relate to different spheres, and that there is no conflict between them. Section 43 clearly applies whenever a person transfers property to which he has no title on the representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. However, apart from this, the section is absolute and unqualified in its operation. It applies to all transfers which fulfill the conditions prescribed therein, and it makes no difference in its application whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property or of his interest therein being that of an expectant heir. Pointing out that there is no controversy on this issue, the court said: Section 6(a) and Section 43 relate to two different subjects, and there is no necessary conflict between them. Section 6 (a) deals with certain kinds of interests in property mentioned therein and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6 (a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel, which is one of evidence. The two provisions operate on different fields and under different conditions and there is no ground for reading a conflict between them, or cutting down the ambit of the one by reference to the other.

The court said that in its opinion, both of them can be given full effect on their own terms in their respective spheres. But to hold that transfers by persons who have only a spes successionis at the date of the transfer are not within the protection afforded by s. 43, would destroy its utility to a large extent. As s. 43 enacts a rule of estoppel, it virtually enacts a special provision for the protection of transferees for consideration from persons who represent that they have a present title, which in fact they have not. Thus while it is true that rules of estoppel cannot be resorted to for defeating or circumventing prohibitions enacted by statutes on grounds of public policy, but here, it is not a ground of public policy alone by means of a specific provision in specific enactment. The court therefore held that the transferee here entered into the transaction acting on the representation made by the reversioners that they were entitled to the property in present. He therefore acquired title to the properties under s. 43 of the Act, when the reversioners became in titulo on the death of W 3, and the subsequent dealing by way of release did not operate to vest any title in Jumma Masjid. In Official Assignee, Madras v. Sampath Naidu,34 a person A executed two mortgages over properties, that he hoped to succeed to on the death of his relative, i.e., in respect of which he had only spes successionis. On the death of the relative, he succeeded to those properties as the heir and sold them to B. A mortgagee claiming under B filed a suit for a declaration that Page 66 of 151

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the initial mortgage effected by A himself at the time when he had no title in the property was void in light of s. 6(a). The court accepted this contention and held that as the initial mortgage was effected by A when he had only a spes successionis, and this fact was within the knowledge of the mortgagee, the same was void and s. 43 would not apply here. Consequently, the transfer in favour of B was valid. In Alamanaya Kunigari Nabi Seb v. Murukuti Papiah,35 a son executed a mortgage of the properties belonging to his father. The mortgagee filed a suit to enforce the mortgage. During the pendency of this suit, the father died and the son, as his heir, inherited the property. The issue before the court was whether the mortgagee could claim protection of s. 43. The son contended that such an interpretation to s. 43, would nullify s. 6(a). The court rejected this argument and held: This argument neglects the distinction between purporting to transfer the chance of an heir apparent and ‘erroneously representing that the transferor is authorised to transfer certain immovable properties. It is the latter course that was followed in the present case. It was represented to the transferee that the transferor was in presenti entitled to and thus authorised to transfer the property.

The court ruled in favour of the mortgagee as against the son. In Shyam Narain v. Mangal Prasad,36 the property belonged to a person A. On his death, it vested in his daughter D, as A had no son. D had a son DS, who sold these properties to X in 1910 when his mother D was alive. D died in 1926, and DS became the owner of the properties as her heir. In 1927 he sold the same properties to Y, who claimed the estate on the ground that the sale in 1910, conferred no title on X, as DS had only a spes successionis, and in contrast, the transfer in their favour had taken place when DS had a vested transferable title. The court rejected their argument and held that X had acquired a good title, as they were entitled to the benefit of s. 43 and observed: Section 6(a) would therefore apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result of course would be the same where the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property and there is no erroneous representation made by the transferor to the transferee as to his ownership. But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorized to transfer it and the transferee acts upon such erroneous representation, then if the transferor happens later, before the contract of transfer comes to an end, to acquire an interest in that property, no matter whether by private purchase gift legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate on the interest which has been subsequently acquired, although it did not exist at the time of the transfer.

In Mahadeo v. Har Baksh,37 the husband of a Hindu woman disappeared. After five years of his disappearance, she executed a mortgage of his property as the owner of the same. Since the title was in the name of the husband, whose whereabouts were not known, the presumption of death in such cases arises after a period of seven years of unexplained absence under the Indian Evidence Act, 1872. It is only after seven years that he would be presumed to be dead and then only can the wife, in the capacity of a widow, inherit his property. The mortgagee

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filed a suit after she had acquired the estate as a limited owner. The court ruled in his favour. TRANSFER BY ONE CO-OWNER *****************************************Dharmendra

Section 44. Transfer by one co-owner.— Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

GENERAL PRINCIPLE This section incorporates a rule of substitution and applies to a case where the property is owned by more than one person in specific shares and one of the co-owners sells his share. The transferee in such a case steps into the shoes of the transferor and he is entitled to all the rights that the transferee had in the property and would also be accountable for any liabilities that the transferor was accountable for. The second part seeks to protect the integrity of a family house and prevents the entry of strangers into the privacy of the family. Therefore, if the property sold is a share in the dwelling house, then, if the transferee is a stranger to the family, he can only seek partition and specification of his share but cannot claim a right of joint residence as was available to the transferor. Hence, in such cases the rule of substitution will not apply and the right acquired by the transferee would be limited to enforce partition. For instance, two brothers jointly inherit a house and a land from their father in identical shares. One of the brothers sells his share to a friend X. Since X is a stranger to the family, he cannot claim a joint residence in the house. His remedy would be to seek partition and demarcation of the house. However, with respect to the land, he would step into the shoes of the transferor and will have the same rights and liabilities that the transferor had.

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Transfer, Explained The term ‘transfer’ here, includes both an absolute transfer as well as transfer of an interest in immovable property. The rule specified herein applies therefore to a mortgage,38 lease,39 sale40 and also involuntary sales, as a rule of equity justice and good conscience.41 The purchaser, even through court, of an undivided interest of the coparcener in a Hindu Joint family does not have a right to joint possession, and he can only sue for partition;42 and once a partition is effected, he can get an exclusive possession of the same. Right to Joint Possession Co-owners of a property have a right to its joint possession, which can be enforced without bringing a partition suit. Every co-owner is entitled to a reasonable enjoyment of the joint property, provided he does not interfere with the similar user by the other co sharers43 or cause inconvenience to any other joint owner.44 Where a person spends money upon the joint property and a time comes to partition it, he will be given an allotment so far it is possible that may enable him to keep the advantage of his improvements including repairs and electric installations.45 A co-sharer cannot maintain a claim for a specific plot and the dispossessed co-sharer’s remedy lies in a suit for partition.46 In the absence of a binding partition between co-sharers, a person purchasing a share in the tenancy rights is a co-sharer tenant and is not entitled to declaration of title to and khas possession of a specified plot which forms part of the tenancy.47 Transferee of an Undivided Share The transferee of a co-sharer acquires the right of transferor when the transferor was in exclusive possession of the share and cannot be disturbed by other co-owners till partition.48 A co-owner not in actual physical possession or exclusive occupation cannot transfer a valid title to that portion but the transferee is entitled to get a share out of the property to be allotted to the transferor at partition or get a decree of joint possession or sue him for compensation.49 Transferee not Entitled to Joint Possession of Coparcenary Property Even though the present section confines the ineligibility of the transferee to have a joint possession of the property in case of a dwelling house, the transferee is not entitled to joint possession where the classical rule of Hindu law forbids it,50 or where he has purchased an undivided interest of the coparcenor51 even where the coparcener is permitted to alienate it.52 He is only entitled to enforce a partition53 of the share that he has acquired,54 subject to any charge or encumbrances affecting the coparcenary property55 or interest at the time of the transfer. Where the purchaser was a relative and had been in possession of the property for a long time, the court may pass an order for joint possession rather than an eviction order.56

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Right to Enforce Partition The right to enforce partition is genrally available to all co-owners even in case of a dwelling house.57 For enforcing a partition there must be unity of possession, title and community of interest.58 However, one of the co-owners cannot claim a specific piece of property as coming to his share, and the property would be partitioned generally. For instance, in a coparcenary, three coparceners collectively own a house and four pieces of land A, B, C, and D. One of the coparceners, X, sells D, a land whose value is to the extent of one third of the total property, to the purchaser. Since the entire interest is undivided, in a suit for partition and handing over of the share to the purchaser, he cannot insist on obtaining only the land D, as which property would go to the share of which coparcener, can be ascertained only after a partition had been affected. The rule of partition is available even in case of a lease,59 including a monthly lease60 or a lease liable to forfeiture in case of certain contingencies,61 except when it causes inconvenience to the rest of the family members.62 In case of usufructuary mortgage, where the possession is with mortgagee, it is the mortgagee and not the mortgagor63 who has a right to enforce partition and to claim possession.64 A purchaser of a share is not liable to the damage caused to the property after the transfer by the transferor.65 Dwelling House belonging to the Undivided Family The section provides an exception to the general rule of the transferor stepping into the shoes of the transferee, but only where the property purchased is a share in a dwelling house. In such cases the right of the transferee would be to ask for partition of the house and not a right of joint residence in it with the other members.66 For the application of the exception, it is necessary to show that: (i) the property is a dwelling house belonging to a family; (ii) the purchaser of the share is not a member of the family, but can be described as a stranger in terms of relations to the family members; (iii)they have not let out the dwelling house completely, or abandoned it. The rule has been incorporated in the Act to prevent the entry of strangers into the privacy of the dwelling house.67 Hence, no stranger to the family can claim a right to joint residence68 with the family members and his only remedy would be to ask for a partition. It is irrespective of how many members are there in the family or what is the character of the family. It may be an undivided69 family70 or even a nuclear family. It is not necessary that the family must have lived in the house constantly,71 permanently, or even temporarily,72 unless they have abandoned all idea of occupying it as a house73 or have let it out completely.74 A partial letting at the instance of a stranger who owns a portion of the undivided house would not alter its character.75 However, if he occupies it after effecting a partition of the house then the situation would be different.76 In all other cases, the only remedy available to him would be to seek Page 70 of 151

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partition and he shall not be entitled to joint possession or other common or part enjoyment of the house77 but is entitled only to a partition of the house.78 Where they are induced into possession in a hurried and clandestine manner, the members of the undivided house are entitled to restoration of possession.79 JOINT TRANSFER FOR CONSIDERATION

Section 45. Joint transfer for consideration.— Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.

GENERAL PRINCIPLE Section 45 enacts a rule where property is transferred for consideration,80 and is purchased by two or more persons jointly. To determine the quantum of their respective interest in this property, the Act provides that in absence of a contract to the contrary81 their interest in the property would be in proportion to their contribution82 towards the consideration.83 For instance, a person A owns a plot of land and sells it to B and C for a consideration of Rs. 10 lakh. In this transaction, the contribution of B was Rs. two lakh and C pays Rs. eight lakh. The extent of interest that both B and C would acquire in the property would be two-tenths, i.e., one-fifth and eight-tenths, i.e., four-fifths respectively. B and C would be co-owners but they would not have equal shares in the property. ‘Transfer’ Includes the Transfer of ‘An Interest in the Property’ The principle applies when two or more persons jointly purchase a property in the property by paying considerations that are different vis--vis each other, such as in a sale. It is also applicable in case of transfer of an interest in the property such as by way of a lease and a mortgage. For instance, where four mortgagees advance money in equal shares and the fourth Page 71 of 151

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mortgagor consents to the mortgagor redeeming the other three mortgages, he can recover only one-fourth of the loan amount by the sale of one-fourth of the property mortgaged.84 It is also applicable to the case of a lease, but is not used to determine conflicting claims of possessary rights when the payment is by one person and residence is by him and his family members. For instance, the government granted a licence in favour of one person of a house and subsequently executed a lease in his favour only, and he occupied the house with his mother and younger brother. These relations do not become co-owners with him of this property and he alone is the legal purchaser, having paid the required price. It is irrespective of the fact that some of the portions of the house were occupied by his relations, but that does not mean that he was out of its possession at any stage. The lessee is therefore the exclusive holder of the premises and entitled to the possession of the same.85 The main purpose of the section therefore is to determine the distinct interest the transferees acquire on the basis of their contribution and is of no assistance in ascertaining the position when one person purchases property partly from ancestral and partly from self acquired funds.86 Contract to the Contrary The section has no application if there is a contract to the contrary. Transfer of property is primarily a contract and by mutual agreement, conditions can be incorporated in the deed which would be binding on them, unless they are expressly forbidden by law. The present section expressly says that the rule contained herein is applicable only in absence of a contract to the contrary. If the property is transferred jointly to two or more persons and if they, as between themselves, agree with respect to the respective share that would be their entitlement, the rule enacted hereunder would have no application. It would be irrespective of whether out of the two purchasers, one may not have contributed anything towards acquisition of the property or their contribution may be totally different from each other. For instance, A sells his property to B and C, for a consideration of Rs. 70,000. B and C pay the funds in the ratio of 5:2, i.e., 50, 000 and 20,000 respectively, but both B and C agree to take equal interest in the property. The agreement would be valid, and the rule under the present section would not apply. Presumption of Equal Interest in the Property Where the terms of the contract are silent about the extent of the contribution of the transfrees towards acquisition of the property or if there is no evidence87 as to the quantum of interests in the fund to which they are respectively entitled, the co-sharers shall be presumed to have an equal interest in the property.88 Thus where property is acquired in the name of several members of the joint family and there is no evidence as to the proportion in which they contributed for the acquisition or no specific mention of the same,89 the presumption is that each one of them contributed equally.90 Where the recital in the sale deed indicates that one co-purchaser has contributed half, but his share is shown as 1/21, it will be presumed that his share is one half.91 Where a common share was forfeited and later brought in by the collector out of a fund contributed by the co-sharers it is presumed that the collector debited an equal amount to each co-sharer and that co-sharer have an equal interest in the share when it is

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recovered.92 Nature of Interest Taken With respect to the nature of the joint acquisition taken by the transferees, the courts in India lean against holding a grant to be a joint grant, and presumption will always be in favour of a tenancy in common.93 The rule applies equally in case the grantees are coparceners. Therefore, unless there is an intention to the contrary,94 they would also take the property as tenants in common.95 TRANSFER FOR INTERESTS

CONSIDERATION

BY

PERSONS

HAVING

DISTINCT

Section 46. Transfer for consideration by persons having distinct interests.— Where immoveable property is transferred for consideration by persons having distinct interests therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.

Illustrations (a) A, owing a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza Lalpura. There being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in that mauza. (b) A, being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A’s life-interest is ascertained to be worth Rs. 600, the reversion R s. 400. A is entitled to receive Rs. 600 out of the purchase-money. B and C to receive R s. 400. GENERAL PRINCIPLE This section applies where one piece of property is owned by two or more persons or where two or more persons collectively possess an interest in the property and they jointly effect a transfer of the same. Further, their shares in the property or extent of ownership may be equal or may be different vis--vis each other. It lays down the rules to determine the respective entitlement of each of the transferor in the consideration that is paid by the transferee.1 Like s. Page 73 of 151

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45, this rule would also apply in absence of a contract to the contrary and provides that where their interests in the property were of equal value, they would also be entitled to share in the consideration equally and where such interests were of unequal value, their entitlement would be in proportion to the value of their respective interests. The section applies both in case of absolute transfers and also in case of transfer of an interest in the property. For instance: (i) A and B are the owners of a land in equal shares. They jointly sell the land to C for a consideration of R s. 50,000. Their entitlement with respect to the consideration would be equal, i.e., they would be entitled to Rs, 25,000 each. (i) A and B own a piece of land. A owns one-third of it and B’s ownership extends to twothird. They sell the land to C for a consideration of Rs. 90,000. A will get R s. 30,000, and B would take Rs. 60,000. TRANSFER BY CO-OWNERS OF SHARE IN COMMON PROPERTY

Section 47. Transfer by co-owners of share in common property.— Where several co-owners of immoveable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.

Illustration A, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C. The section enacts a rule to avoid confusion in case of transfer by more than one co-owner of the property who hold the shares as tenants in common, without specifying, how much out of each transferor’s share is transferred. In such a case, the share transferred would be proportionate to the extent of their ownership in the property.2 For example:

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(i) A, B and C are the co-owners of a piece of land, each of them equally having one-third share in it. They collectively sell half of the total property to D, without specifying the specific share with respect to which the transfer is to take effect. D would take half out of each owner’s property. Consequently, each of them would now hold one-sixth of the total property owned by them. (ii) A, B and C are the co-owners of a piece of land, each of them having half, one-fourth and one-fourth share in it respectively. They collectively sell half of the total property to D without specifying the specific share on which the transfer is to take effect. D would take one-fourth out of A’s share, one-eighth from B’s share and one-eighth out of C’s share. PRIORITY OF RIGHTS CREATED BY TRANSFER

Section 48. Priority of rights created by transfer.— Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. The rule contained herein is based on the maxim qui prior est tempore potior est jure which means that subsequent dealings by the transferor of the same property cannot be to the prejudice to the rights of the transferee over the same property. It visualises a situation where the transferor carries out multiple transactions with respect to the same property in favour of several transferee. In such a situation each subsequent transferee will take the property with the rights of a former transferee. For example: (i) A grants a lease of his house to B for a period of five years. After one year of execution of this lease deed, he sells the property to C. Here the transferor has transferred the property two times to two different transferees. One is a lease, i.e., transfer of a right to possess and enjoy in favour of B, and the second is a transfer of all the rights in the property in favour of C. According to the rule expressed in s. 48, the subsequent transferee will take the property with the rights of the former transferee. It means that in the present example, C who has become the owner of the property with a subsequent transfer will take it subject to the rights of the former transferee, i.e., B, who is the lessee. In other words, B would have a priority of claim over the property with the result that C would not be able to take the possession of the property with immediate effect, even though he has become the owner. He would have to wait for a period of four years, till the completion of the lease and then only he can claim the possession. (ii) A mortgages his property in favour of B to secure a loan of Rs. 80,000. He subsequently, sells the same property to C for a consideration. Here again there are two Page 75 of 151

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transfers effected by the transferor, the prior in favour of B and the subsequent in favour of C. The law says that in case of successive transfers of the same property by the transferor, the latter transfer is subject to the prior transfer. Here, C has become the owner of the property but the property is still subject to a mortgage and in the event of non payment of loan, the mortgagee can cause the property to be sold. So in effect, the complete rights over the property will be vested in C if he redeems the property by the payment of loan. B’s rights over the property are not affected by the sale in favour of a third party. Thus, where a person mortgages a property and then sells it,3 or mortgages it a second time,4 the subsequent transferee will merely get an equity of redemption and if he sues for sale on his mortgage it will be sold subject to the prior mortgage.5 The rule applies equally to mortgages by deposit of title deeds which take priority over a later registered sale of the same property,6 but does not apply to a charge.7 Where a person grants a village to another as maintenance for life and later gave a putni to another, the putni will take effect only on the death of the grantee.8

Exceptions to the Rule of Priority The rule of priority is subject to the following exceptions: (i) In case the instruments of transfers are required by law to be compulsorily registered, and the former transfer is unregistered and the later in accordance with the procedure of law, the latter will have priority over the former and the rule continued herein would not apply. For example, A executes a lease in favour of B with the help of a written deed that is not registered. The lease is for a period of five years and according to s. 107 of the Act, can be validly effected only with the help of a written, attested and register deed. The property is subsequently sold to C for a consideration. Here, instead of B, it is C who would have priority over the rights of B over the property. B would have to vacate, as the lease in his favour is not executed with the help of a document capable to take effect in law. (ii) The rule contained in s. 48 is subject to the doctrine of notice.9 (iii)Where the second transfer is by virtue of an order of the court that also says that this transfer will have precedence over all the previous charges.10 Other Instances of Reversal of the Rule of Priority Where in a lien, money is advanced for the purpose of saving the property from destruction of forfeiture, the rule of priority is reversed and a person having a lien is entitled to priority in the reverse order to their dates.11 Where the suit property is mortgaged by the receiver under the directions of the court for the purposes of preserving it, the mortgagee is entitled to priority in Page 76 of 151

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a suit for partition over an execution creditor by whom property is attached,12 or over all other prior charges.13 Reversal is also permissible in case of statutory restrictions14 or when subsequent transferee has notice15 of the prior transfer, but only when the deeds are antagonistic and cannot be given effect to simultaneously.16 TRANSFEREE’S RIGHTS UNDER POLICY

Section 49 Transferee’s right under policy.— Where immoveable property is transferred17 for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require18 any money which the transferor actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.

The rule is applicable to all kinds of transfers of property. For instance, if the property is subject to a usufructuary mortgage, where the possession of property is with the mortgagee, and the property is destroyed or damaged by fire, the insurance amount, if the property is insured, would be received by the owner, i.e., the mortgagor, but the mortgagee would have a right to require him to either apply the total amount, or whatever is necessary in the given situation, for restoration of the property to its original condition. If the transferor fails to do so, the mortgagee would have an option to revoke the mortgage and demand his money back. Similarly, in case of lease, where the property is in possession of the lessee and is destroyed or damaged by fire, a similar right is available to the lessee. If the lessor fails to apply the insurance money for the restoration of the property, and the property is unfit for occupation, the lessee would also have an option to cancel the lease.19 The purpose envisaged here is to direct the money for the benefit of the property, so that the purpose of the transfer is not frustrated. RENT BONA FIDE PAID TO THE HOLDER UNDER DEFECTIVE TITLE

Section 50 Rent bona fide paid to holder under defective title.— No person shall be chargeable with any rents or profits of any immoveable property, which he has in good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery Page 77 of 151

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was made had no right to receive such rents or profits.

Illustration A lets a field to B at a rent of R s. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B, is not chargeable with the rent so paid. GENERAL PRINCIPLE The rule contained herein is aimed at protecting the interests of a lessee, who in good faith pays rent to a person, who possesses a defective title and is not competent to accept it. It provides that such a lessee would not be under any obligation to pay rent a second time to the person competent to accept it. For instance, A is the owner of a house and lives in it along with his wife. He gives the first floor of this house on rent to B. B pays the rent periodically to A. A dies, and B continues paying rent to A’s widow in good faith believing her to be the owner. However, the widow was not competent to accept the rent as A had bequeathed his house to his brother’s son. But because B had paid the rent in good faith and without notice of the right of the nephew of the lessor over the property he cannot be chargeable again by him. Similarly, A is the owner of a house and mortgages the same to B by a usufructuary mortgage. The house was in possession of a tenant who was paying rent to A. Upon the mortgage, the mortgagee became entitled to possession of the property and also the rent. However, the tenant in ignorance of the fact of mortgage, continued paying rent to A. He will not be chargeable for the rent again.20 Though the person paying rent bonafidely will not be charged again, the person not entitled to receive the rent does not get to keep it, and the person entitled to the rent can proceed against him.21 Rent A tenant paying rent in advance bona fide to a person no longer entitled to receive will not be chargeable with the rent again,22 but where the money is paid in advance not as rent but as an advance, it would be treated as a loan instead of rent and hence its payment will not be protected.23 Notice For the application of this section, it is necessary that the rent be paid without any notice that the person receiving it is not competent to accept it. If the tenant knows the defect in title or could have known it as a reasonable prudent person, the protection cannot be accorded to him. Where the tenant has notice24 of the assignment,25 and yet pays rent to the original lessor, he

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will be asked to pay the rent again. Good Faith A tenant’s action must be in good faith. Only the tenant who acts bona fide and in good faith,26 is protected under this principle.27 Where there is a dispute with respect to the title of the tenanted premises and the tenant, though aware of the dispute, at his discretion pays rent to one of them, he cannot later seek protection under this principle.28 Where an Official Receiver executes a lease of the property in his charge under insolvency proceedings erroneously ignoring its sale, and the tenant pays rent to the Official Receiver, he will not be charged with the rent again by the auction purchaser.29 IMPROVEMENTS MADE BY BONA FIDE HOLDERS UNDER DEFECTIVE TITLE

Section 51. Improvements made by bona fide holders under defective title.— When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

GENERAL PRINCIPLE The section applies to a transferee, who, in good faith, believes that he is the owner of the property. He makes improvements under this belief over the property but is subsequently evicted by the real owner. In such a case, the law provides him with two options in the alternative generally. First, he can require the owner to pay him the value of the improvements effected by him on the property and in the alternative; he can require the real owner to transfer the interest in the property to him at the market value. In case the transferee has planted or sown crops on the property that are growing at the time when he is evicted, he is, in law also

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entitled to free ingress and egress to gather and carry them.30 The fundamental principle on which this section is based is the maxim—‘he who seeks equity must do equity’. Under this section therefore, law imposes an obligation upon the evictor to compensate a person acting honestly and making improvements on the evictor’s property. While evicting such person, the real owner cannot appropriate or take benefit of the improvements made by this person without compensating him. What is absolutely essential is that the transferee was under a conviction that he holds the title and was competent to improve the property. If he knew that he does not have the title to the property, he would not be entitled to the protection under this section and the benefit of the improvements would pass to the real owner. For instance, a person having a life interest in the property is not competent to sell it and if he transfers this property, the transferee will not acquire a good title. A, having a life interest in the property, sells the same to B for consideration. B pays the consideration, and in good faith, thinking himself to be the owner, makes substantial improvements on the property. The sale is challenged by C who has a vested interest in the property and to whom the property is to belong after the death of A. The sale is set aside, yet at the same time C must compensate B for the improvements. In the same example, if B knew that A had only a life interest in the property and knowing this, he enters into the transaction, and is evicted from the property after he carries substantial improvements, he would not be entitled to seek the protection under this section and the improvements would pass on to C. In Harilal Ranchhod v. Gordhan Keshav,31 the property belonging to the minor was sold by his guardian to a person X without seeking the permission of the court. X paid the consideration and under the sincere belief that he was the absolute owner of the property demolished the existing structure on the land and built a new house. The minor, on attaining majority, evicted X. The court held that the minor had a better title and he was entitled to the property, but at the same time he was under a legal obligation to compensate X. Similarly, where a person takes the possession of the property under an oral agreement of sale, but never attempted to get it enforced through any judicial proceedings and did not pay the money to the owner despite enjoying the property for a long time, he cannot claim relief under this section, but would be entitled to remove the improvements made by him in the property.32 Essential Ingredients of the Section In order for the section to apply, the following conditions must be satisfied: (i) the property transferred must be immovable property; (ii) the property is transferred absolutely to the transferee; (iii)the transferee in good faith believes himself to be absolutely entitled to this property; (iv)he makes improvements on the property under such belief; or (v) has sown plants or crops on the property; and Page 80 of 151

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(vi)he is evicted by a person who holds a better title to the property. Rights arising in favour of the bona fide transferee: (i) a right to require evictor to pay him the value of improvements, or; (ii) to sell interest in the property to the transferee at the then market value thereof irrespective of the value of improvements; (iii)if the transferee has sown crops on the property, he has a right to free ingress and egress for the purpose of gathering and carrying them. Transferee The person claiming the benefit of improvements must be a transferee33 and not a trespasser.34 He should not be a person fraudulently in possession,35 or merely in permissive possession as the licencee of the property.36 A purchaser in good faith of a life estate,37 or under a covenant to reconvey property,38 or a lesser estate than he was actually given39 of an estate in ignorance of a mortgage,40 or of a property which is worth more than Rs. 100 under an oral sale,41 or a grantee of land from a tehsildar who was later evicted by the collector,42 all, would be transferees entitled to the protection of improvements. An allottee of a plot by the government who erroneously enters and improves another land,43 or a person who does not improve the property himself but purchases the property from the improver, cannot avail the benefit of improvements in case of eviction.44 The principle applies even if the transferor is the evictor.45 Improvements by Trespasser As has been explained above, a person claming the protection of this section must be a transferee who is under a belief of his absolute entitlement of the property. In other words, he is in lawful possession of the property, but under a defective title. If he is in unlawful possession of the property, he cannot claim the protection accorded under the Act. Therefore, a trespasser cannot claim any compensation for improvements after a wrongful invasion46 of somebody else’s property and can be asked to remove the improvements47 within a time fixed by the court,48 failing which the plaintiff should be put in possession of land49 with or without the buildings, which he may pull down at his pleasure50 unless the trespasser can show an acquiescence on part of the owner,51 or an encroachment with a genuine mistake.52 Where the trespasser in good faith plants trees, he is entitled to its usufruct thereof.53 ABSOLUTE TRANSFER The words ‘absolutely entitled thereto’ indicate that the transferee must acquire a property under an absolute transfer. It should be a transfer of all the rights in the property and not transfer of an interest in it. A transferee under a partial transfer like a mortgagee54 or a lesee,55 including a permanent lessee,56 cannot take the benefit of the improvements they have made as Page 81 of 151

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they are not absolutely entitled to the land.57 However, where a mortgagee honestly believes himself to be so entitled,58 such as in a mortgage by conditional sale,59 or where he is misled by an erroneous order of the court60 or by a term of forfeiture of property after five years in the deed,61 he would be entitled to protection. Belief of Absolute Entitlement The transferee must have made improvements, believing in good faith, i.e., honestly believing,62 that he is entitled to the immovable property.63 Failure to prove that would disentitle him to the benefit of the improvements.64 It is essential not only to plead that the transferor thought that he was absolutely entitled to the property but also that the transferee knew that the transferor so thought, and was led by the transferee’s inaction, to think thus.65 What is necessary is the belief of the transferee’s absolute entitlement and not that the property is free from all encumbrances.66 Where the transferee knows or has reason to believe that he is not absolutely entitled to the property and yet makes improvements, he cannot seek the protection of this section. Thus, a purchaser making improvements with knowledge that the property does not belong to him,67 or is pending litigation,68 or is the mortgaged property,69 or with notice of a prior sale,70 or in anticipation of a grant,71 or with knowledge of a terminable interest72 cannot claim the benefit of this principle. Purchaser at a Court Sale The rule contained herein applies to a transfer inter vivos by parties to a transfer and does not apply when the transferee purchases the property at a court auction. If a person purchases the property at a court sale and then makes improvements, and subsequently the sale is set aside, he would be entitled to compensation irrespective of his belief as to whether he is is not, entitled absolutely to the property.73 IMPROVEMENTS Improvement means any work which adds to the market value of the property consistent with the purpose for which it was let out, which enhances the value of the property as a marketable subject. Improvement is not ascertained merely by the amount of money spent on the property, but on the enhancement of the value of the property. Therefore, the amount of expenditure incurred by the transferee74 alone is not the deciding factor. Mere repairs,75 putting a new staircase into an old house,76 manuring and levelling of agricultural lands,77 are not improvements but ordinary operations. JOINT HINDU FAMILY Due to the unique character of the Hindu joint family, the power of alienation of the property belonging to the joint family are vested with the karta. However, he is empowered to alienate the same under certain specified circumstances only. If he exceeds his powers and sells the Page 82 of 151

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property for a purpose other than for what he is authorised, such alienation can be challenged by the coparceners. An alienee from the father and manager/karta of a joint Hindu family is entitled to the value of the improvements made by him, if the transfer is avoided later by the son.78 Similarly, where the guardian of a minor makes an unauthorised alienation of the property belonging to the minor, and the minor later avoids it and evicts the alienee, he would be under a legal obligation to either compensate the alienee for the improvements or may be required by him to sell the property to him at the market value.79 Where the successor–in–title of the last surviving coparcenors of a Hindu joint family are divested by reason of a subsequent adoption, they are transferees who are entitled to get the benefit of this principle.80 The benefit is not available to a son governed by Dayabhaga family who makes improvements on the ancestral property,81 as no rights by birth are conferred in favour of the son under the Dayabhaga law. A purchaser from a Hindu widow,82 who is evicted by the reversioner,83 is also not entiled to the protection of this section, unless her estate is afterwards divested by an adoption,84 or the transfer is for a permitted purpose such as for the religious benefit of her husband.85 Value of Improvements The evictor of a bona fide person in possession under an honest belief of his entitlement is under a legal obligation to compensate him for the improvements effected on the property but the value of improvements has to be assessed at the time of the eviction. While calculating the saleable value of the improved property, the amount actually spent on improvements is not decisive of the question.86 The remedies available with the person against the real owner, when he is evicted, are two in the alternative, first, he would be entitled to the costs of his improvements or he will be entitled to have the property sold to him at the then market price, thereof irrespective of the value of the improvements. But the choice of the alternatives is with the person entitled to be evicted.87 Valuation has to be made as on the date of the actual eviction and not on the date of the exercise of the option by the real owner.88 Valuation would not be the amount actually spent in making the improvements, but the extent to which the value of the property has been enhanced as a marketable subject,89 taking into account also the general rise in prices.90 In special circumstances a third remedy can be to allow him to remove all improvements made by him in the property.91 Crops When, under the circumstances aforesaid, the transferee has planted or sown on property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.1 It does not mean that till the crops are fully grown or carried away, the possessor of the property cannot be evicted. He would be evicted, but this rule grants him an access for a specified purpose, and he may be allowed by the real owner to look after the crops till they are fit for cutting and carrying away.

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The rule is necessary in view of the general principle that the right to natural vegetation passes with the transfer of the property in favour of the transferee. However, growing crops are even otherwise in light of s. 3, movable property and the property in them does not necessarily pass with the land. The very purpose for which they are grown would be frustrated if the person evicted is asked to carry them away, whatever their stage of growth may be. Crops need regular care and a particular time to grow and reach a stage when they need to be cut. Therefore, the evicted person is allowed free ingress and egress to look after the crops and to cut them when they are ready and carry them away. TRANSFER OF PROPERTY PENDING SUIT RELATING THERETO

Section 52 Transfer of property pending suit relating thereto.— 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 by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot 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 Explanation— For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

GENERAL PRINCIPLE In dispute between parties with respect to a specific immovable property, usually the decision of the court binds only the specific parties involved, and is not of a general binding nature. For instance, a person A is in peaceful possession of the property for a period of 10 years. B encroaches upon this land by constructing a temporary hut and starts living on it. A files a suit against him in a court of law and gets a verdict in his favour that directs B to remove the encroachments declaring him to be a trespasser. This decision is binding on B but not on any other person who may encroach upon the property in future. In such a case A would have to file a fresh petition for evicting him. This primary rule of applicability of the decision of the court only on the parties, may, in certain cases, frustrate the very purpose of justice. Similarly, A is the owner of a house and permits B to stay in it. B without the consent of A sells it to C. A files a suit against B for reclaiming the possession and a declaration of title. Page 84 of 151

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Soon after the institution of the suit, B delivers the property to C. A fails to implicate C as a party. The suit is decided in favour of A, but if it is binding on only B, then A would have to file a fresh suit against C, who currently had the possession of the property for reclaiming the possession. Soon after the institution of suit against C, C sells it further to D. A again wins the case but as the possession is with D, he would have to file a fresh case against D for reclaiming the possession. If during the pendency of this third litigation, D also sells the property to E, then after the completion of this case, A would have to proceed against E. This chain may go on indefinitely and the very purpose of justice to be accorded peacefully through the medium of the courts, will be frustrated. This is why the present section incorporates a rule that makes all alienation of the property that is the subject matter of a dispute, pending in a court, awaiting disposal, subject to the decision of this court. In other words, whosoever takes the property by a transfer during the pendency of the litigation, would be automatically bound by the decision of the court and it would be enforceable as against him, irrespective of whether he was formally inculcated as a party or not. For instance, A is the owner of a house and permits B to stay in it. B starts treating the property as if it belongs to him, and refuses to allow A to enter the premises. A files a suit against B for reclaiming the possession and a declaration of title. Soon after the institution of suit B sells the property to C. A fails to implicate C as a party. The suit is decided in favour of A, but due to the application of s. 52, it is binding on not only B but on C as well, as the transfer of property at the instance of B was during the pendency of this litigation. A would not have to file a fresh suit against C as the decision of the court would be enforceable as against C also. The section provides adequate protection to the parties from a transfer pendente lite. The transferee is neither required to be impleaded nor claim impleadment. He cannot even resist execution proceedings. In light of such protective provisions there is no need for a party to the litigation to seek an injunction against the other party restraining him from alienating the property. Such injunction would in fact be superfluous and would normally be denied by the court unless the plaintiff demonstrates that the rule of lis pendens is inadequate to protect his interests.2 Lis Pendens ‘Lis’ means an action or a suit. ‘Pendens’ is the present participle of Pendo, meaning continuing or pending, and the doctrine of lis pendens may be defined as the jurisdiction, power, or control that courts have, during the pendency of an action over the property involved therein.3 The principle contained in this section is based on the English common law maxim ut lite pendente nihil innovator i.e., during litigation no new rights should be introduced.4 It prohibits alienation of property when a dispute relating to the same is pending in a court of law awaiting disposal by the same. The rule contained in s. 52 is also called the rule of lis pendens and makes transfers pendente lite, subject to the decision of the court. As a principle of equity, justice and good conscience, Page 85 of 151

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this rule applies even where the Act does not apply.5 The importance of this rule was explained by Turner, L.J. as follows:6 It isa doctrine common to the courts both at law and Equity, and restsupon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo subject again to be defeated by the same course of proceedings.

Section 52 protects the right of suitor to any immovable property, which is subject matter of issue in the court. It forewarns the creation of third party’s interest in the said property, which has the effect of defeating the right of a person in whose favour decree or order is passed by the court of competent jurisdiction. It in essence forbids transferring rights in third party during the pendency of litigation. If any decree or order is passed in such proceedings, any transfer of right during inter regnum shall be determined as non est in the eyes of law. 7 It is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree.8 The basis of this doctrine can be explained in the following words:9 According to some authorities, a pending suit must be regarded as notice to the entire world and pursuant to this view it is argued that any person who deals with property involved therein, having presumably known what he was doing, must have acted in bad faith and is therefore properly bound by the judgment rendered. Other authorities however, take the position that the doctrine is not founded on any theory of notice at all, but is based upon the necessity, as a matter of public policy, of preventing litigant from disposing of property in controversy in such a manner as to interfere with execution of the court’s decree. Without this principle, it has been judicially declared, all suits for specific property might be rendered abortive by successive alienations of the property in suit so that at the end of it another suit would have to be commenced and after that another, making it almost impractical for a man ever to make his rights available by a resort to the courts of justice.

STATE AMENDMENTS Gujarat and Maharashtra This section has been amended and is applicable in the states of Gujarat and Maharashtra by the Bombay Act, 1939,10 and provides as follows:

Section 52(1 — 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 by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, if notice of the pendency of such suit or proceeding is Page 86 of 151

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registered under section Sections 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceedings 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. Every notice of pendency of the suit or proceedings referred to in sub-section (1) shall contain the following particulars, namely:— (a) the name and address of the owner of immovable property or other person whose right to immovable property is in question; (b) the description of the immovable property the right to which is in question; (c) the court in which the suit or proceeding is pending; (d) the nature and title of the suit or proceeding; and (e) the date on which the suit or proceeding was instituted. Therefore the application of the doctrine of lis pendens in Gujarat and Maharashtra is subject to the party giving a notice in the required format stating all the five requisites mentioned therein.

Ingredients of Doctrine of Lis Pendens The basic ingredients of the doctrine of lis pendens are:11 (i) a litigation should be pending in a court of competent jurisdiction; (i) the suit must be relating to a specific immovable property; (i) the suit should not be collusive; (i) the suit should relate to a right in this specific property; (i) property should not be transferred or otherwise dealt with; (i) by any party to the suit; (i) so as to affect the rights of any party thereto;

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(i) till the final disposal of the case. The term ‘pendency’ substituted for ‘active prosecution’ This section was amended in 1929, and brought in three changes to the definition. First, it substituted the words ‘pendency’ for ‘active prosecution’, and the words, ‘any suit or proceedings which is not collusive’ for the words, ‘a contentious suit or proceedings’ and thirdly, added an explanation which explains and fixes a time frame within which the suit is deemed to be pending in the court. PENDENCY The first essential ingredient for the application of the doctrine of lis pendens is that a suit must be pending in a court of law. The term ‘pendency’ means from the commencement of the case till the final disposal. The explanation to s. 52 of the Transfer of Property Act, 1882 says: Explanation.— For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. The suit commences on the filing of the plaint and it is deemed to continue12 so long as the suit or proceeding is pending in appeal or execution.13 For instance, A executes a gift of his property in favour of B. Before B could take possession, A died and his son, took the possession of his property as his heir. B files a suit challenging the title of S and prays that he be delivered the possession of the property on the strength of the gift deed. The day the suit is filed is the day when it commences. The case goes through various courts, and finally the Apex Court passes a decree in favour of B. The suit is still pending as though B has been declared to be the owner of the property he is still to get the possession. In execution of this decree, when possession is delivered to him, that is the time when this suit comes to an end. A sale14 or a mortgage15 executed after the filing of plaint, but before issue of summons would be hit by lis pendens but not in case of an amendment of the plaint,16 even where the amendment relates to a reference to the property,17 unless the property is transferred after an application for amendment has already been made to the court.18 Where the plaint is insufficiently stamped and rejected by the court and is then filed after making good the deficit, an alienation between the two dates is not hit by lis pendens,19 unless the court does not return the plaint but recovers the deficit fees.20 When an application to sue in forma pauperis is admitted the suit is pending from the date of the presentation of the application to the court,21 but not when it is rejected.22Lis in such cases does not commence only after application is admitted and the plaint is registered as a suit.23 Similarly, where a suit for declaration of title is dismissed for default, and a revival application filed a day after the dismissal of suit is Page 88 of 151

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admitted a few days thereafter, a sale of the property effected a day after the revival application is filed will be subject to the rule of lis pendens.24 A mortgage executed after a mortgage decree and during the course of execution proceedings is subject to the rule of lis pendens.25 In Amarnath v. Deputy Director of Consolidation, Kanpur,26 a partition suit was filed by A in 1956. The defendant, B while filing the written statement contended that some of the properties were left out and were not shown as joint family properties while in fact they were so. A admitted that they were joint family properties, but were left out erroneously. The partition suit was compromised with a specific understanding that the disputed plot that was left out in the initial petition would be shared by both of them in half share each. However, before the case could be finally disposed of, the disputed plot of land, not originally mentioned in the suit but admitted as property that should have been the subject matter of partition, was disposed of by A, by a gift in favour of the grandson. The court held that the gift was subject to the rule of lis pendens. APPEAL AND EXECUTION Lis pendens continues during appeal27 with decree passed in the suit.28 Dismissal of a suit does not negate the application of lis pendens if an appeal is filed later,29 but not where it is reversed in appeal.30 The suit continues even after passing of the decree till its execution.31 For instance, a suit is filed in the district court in relation to a specific immovable property. The suit is decided by the court, and an appeal is filed against the decision in the High Court. After the pronouncement by the high court, a second appeal is filed in the Supreme Court. When the Apex Court passes a judgment, even then the suit does not come to an end, if for instance, the relief asked for is recovery of possession of the property, which was in the possession of a trespasser. The judgment by the Apex Court is not synonymous to granting of relief. This decree passed by the court will help the litigant to obtain possession. For example, the court passes a verdict that within a period of 30 days the trespasser should vacate the premises. During this period of 30 days, the suit would be deemed to be pending. If the trespasser sells the property after the decision is given by the Apex Court and within this period of 30 days, the transfer would be hit by the rule of lis pendens. If the trespasser vacates and the litigant gets his property, the suit comes to an end, as he has obtained the relief sought by him. However, if the trespasser does not vacate despite the court verdict against him, then the decree of the court would be executed. The execution of the decree means that with the help of the execution proceedings, and in accordance with the principles of law, the possession would be delivered to the owner. Once he gets the possession after the execution of proceedings, then only would the litigation come to an end. The section uses the term ‘from the date of the presentation of the plaint or the institution of the proceedingscomplete satisfaction or discharge of such degree or order. As explained above, the suit continues even after passing of the decree till its execution. Similarly, A mortgages his property to B and secures a loan of two lakh rupees. As per the terms of the agreement, A was to pay the loan amount within a period of ten years, failing which B was entitled to cause the property to be sold and realise his loan amount from the sale Page 89 of 151

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of the property. A failed to repay the loan. After ten years, B filed a suit for foreclosure and a decree was passed in his favour. The suit is still pending as the relief asked for by the mortgagee was not a mere decree, but he wanted back the amount that he had advanced to A. In execution of this decree, when the property is sold and the amount is paid to the mortgagee, then only would the suit come to an end. If during the pendency i.e., from the date the mortgagee filed a suit for foreclosure of the mortgage and till the amount is paid to him, the mortgagor transfers the property, such a transfer would be subject to the decision of the court. Similarly, if in between the time of passing of preliminary decree for sale in a mortgage suit and the time till the security is realised for the satisfaction of the judgment creditor,32 a purchaser,33 a lessee,34 or a subsequent mortgagee35 take this property subject to the rights of the auction purchaser. Similarly, a suit for foreclosure is deemed to be pending till the decree is absolute for foreclosure.36 Where, the allotment of property by the urban development authority was cancelled and they took the plot back; and the appeal filed by the allottee was dismissed and the plot reallotted; and as on the date of reallotment there was no appeal pending, lis pendens would not be attracted even remotely.37 Proceedings in Civil Appeal before the Supreme Court The Supreme Court, at the head of the pyramid of the judicial system in this country, exercises both original and appellate jurisdiction. It has the power to pass such decree or make such order as it thinks fit, and any decree so passed or order so made shall be enforceable throughout India. Proceedings before the Supreme Court are a continuation of those in the original suit, and the principle of lis pendens as well as restitution applies to them. In Dalip Kumar v. Jeewan Ram,38 the issue before the court was whether the proceedings in a civil appeal before the Supreme Court in pursuance of the grant of special leave under 136 of the Constitution of India are a continuation of proceedings in the original suit, and if the principle of lis pendens applies to such proceedings. Here, A had filed a suit for possession by way of pre-emption of a land that was sold to B. The lower court granted a decree for pre-emption and in pursuance of it, he took the possession of the property. An appeal filed by the opposite party in the High Court was dismissed. A second appeal was filed to the Supreme Court, which was again dismissed. Thereafter, he filed a special leave petition under 136 of the Constitution of India. Not only was the leave was granted, but the appeal was also accepted by the Supreme Court. During this time period A sold the property to X, who raised an objection that a decree of restitution could not be invoked against him. The court held that as the matter was decided in favour of the other party by the Supreme Court; they were entitled to a decree of restitution of possession and a sale pending disposal of the case before the Supreme Court was definitely hit by the rule of lis pendens. Suit or Proceedings The term ‘suit’ indicates a measure taken for a legal action or proceedings initiated by a person who claims relief invoking the judical mechanism set up by the state for a peaceful relief of his grievance. It includes a suit for a temporary39 or permanent injunction,40 an Page 90 of 151

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easement suit,41 a partition suit,42 a suit for foreclosure of a mortgage, a suit for redemption of the mortgaged property, a pre-emption suit,43 a suit for specific performance,44 a writ petition,45 but does not include a review petition if there is a delay in applying for the same.46 Proceedings include a revenue proceeding,47 or before the Registrar of co-operative society,48 but not a proceeding before a Settlement Officer.49 The filing of an application for a private award, creating a charge for maintenance is a plaint,50 and is covered under the expression ‘suit or proceedings’. EXECUTION SALES The doctrine of lis pendens applies to transfers effected by parties to the suit and therefore does not, in terms, apply to court sales51 but has been applied to execution sales52 and to a purchase at a court sale in execution of a money decree53 pending a suit on a simple mortgage, as it involves a question of right to immovable property.54 The principle is, therefore, not applicable to the transfers made under the authority of the court and on such terms that it may impose.55 REVENUE SALES Proceedings before a Revenue Court and sale of a share of an estate for arrears of land revenue,56 or of arrears of income tax57 during pendency of execution proceedings in suit to enforce a mortgage on the property,58 or a sale by the collector under the Code of Civil Procedure, 1908, for the amount due in respect of the court fees payable by the plaintiff on a suit in forma pauperis 59 or a sale under the Criminal Procedure Code, 197360 is subject to rule of lis pendens. But the doctrine of lis pendens can have no application to a case of sale for arrears of government revenue during the pendency of execution proceedings in execution of a money decree, for no right to immovable property is in issue in this suit.61 COLLUSIVE SUITS The suit or proceedings must be a genuine proceedings and not a collusive one. If the suit is collusive, a transfer during its pendency would not be hit by the rule of lis pendens. The term ‘collusive suit’ means ‘a suit filed with conspiracy’, a sham suit or a pretentious suit. The original section did not contain the words collusive, rather it used the expression ‘a contentious suit or proceedings’ in its place. The term collusive was added to the section in 1929. For instance, A, the owner of a house, contracts to sell it B and accepts an advance amount from him. The terms and conditions of the contract stipulate that if B does not purchase the property within 30 days, he would have to forfeit the advance amount, but if A failed to execute a transfer in his favour, he would have to pay double the amount of advance amount as damages. A, later, does not want to execute the sale deed, yet, is not willing to pay the damage amount. His wife, in collusion with him, files a suit against A claiming past arrears of maintenance and future maintenance and seeks to charge this property which was the subject matter of the contract. Even if this property is charged in favour of the wife of A for her Page 91 of 151

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maintenance, the transfer affected during the pendency of this suit would be valid and will not be hit by the rule of lis pendens as this was not a genuine suit, but a collusive suit. When the parties to a suit enter into an agreement for the express purpose of defeating the rights of a transferee and obtain a decree in terms of the agreement, the suit is collusive and the rule of lis pendens will not apply.62 Lis pendens applies from the very moment of the institution of a suit which is not collusive.63 A collusive suit is a mere pretence but a suit does not become a collusive suit only because it is compromised64 or results in a consent decree,65 or is an ex parte decree,66 provided it is honest67 and not tainted with fraud or collusion.68 If the suit is withdrawn and a compromise is then recorded in a conveyance between the parties, such compromise would not be subject to the rule of lis pendens.69 An abandoned suit is very much like a collusive suit, which is statutorily excepted from the application of the rule of lis pendens.70 Where, during the pendency of a collusive maintenance suit by a Hindu wife against her husband, a person bona fide purchases property of her husband, the charge subsequently created in favour of the wife on such property will not prevail against the purchaser’s rights.71 A collusive suit is different from a fraudulent suit,72 and is binding on the immediate parties but not on their transferees.73 NOTICE Section 52 incorporates a statutory rule that is based on the rule of expediency,74 and the transferee cannot plead that he had no notice that the property was the subject matter of litigation. Thus, generally, it is immaterial whether the alienee had notice of the litigation or not.75 However, in Gujarat and Maharashtra, the law itself makes it mandatory for the party initiating litigation to get a notice registered in accordance with the manner prescribed therein, before the rule can apply. Court of Competent Jurisdiction The courts in India are segregated on the basis of their pecuniary, territorial, extra-ordinary jurisdiction, etc. There are special courts dealing in a specified subject matter. For the purposes of s. 52, the suit must be pending in a court having competent jurisdiction.76 If it is presented to a court that does not have the competency to try it, a transfer during the pendency of such a suit would not be hit by the rule of lis pendens. For instance, A, has a house in Lucknow. He comes to Delhi in search of a job and decides to live there. Trespassers encroach upon his house in Lucknow. With respect to immovable property, a suit with respect to this property can be filed only in the courts at the place where the property is located. It cannot be filed elsewhere. If A files a case relating to this property at a court in Delhi, transfer of the property during the pendency of such a suit will not be subject to the rule of lis pendens, as the courts in Delhi will not have the jurisdiction to try the dispute. If the property in question is partly situated in the area where the suit is filed, and partly in

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another state, the court of the former area is competent to try the case.77 The pendency of a suit in a foreign court does not create the bar of lis pendens,78 nor would the doctrine apply to property situated outside India.79 The Privy Council is not a foreign court.80 A suit on a mortgage of land,81 or a lease82 filed with respect to the property situated in the moffusil area in the erstwhile Supreme Court of Calcutta, which had no jurisdiction to try the case, will not be hit by the rule of lis pendens. A suit instituted in a higher court where it should have been instituted in a lower court is a court having no jurisdiction to try the case.83 A transfer pending proceedings before a registrar of co-operative society84 or revenue court,85 is affected by rule of lis pendens. In Shyam Lal v. Shyam Lal,86 the court observed, “Where a court has jurisdiction to deal with the property having regard to its nature, character and valuation, the mere fact that it was not originally included in the plaint would not oust the jurisdiction of the court when it was acting upon the agreement of the parties”. In Govinda Pillai Gopala Pillai v. Aiyyappan Krishnan,87 a dispute with respect to the rights over a property was presented in court. However, the plaint was returned after a preliminary finding that the court, where it was presented, did not have the necessary pecuniary jurisdiction to try it. Before it could be filed in the District Court of Kottayam, which was the competent court, A, who had its possession, executed a gift of the same in favour of his wife and son. The issue before the court was, whether the gift deed would be hit by the rule of lis pendens. The court held that on the material date, when the gift was executed, it can be said that there was no suit pending in a court of competent jurisdiction, and therefore, the doctrine of lis pendens will not apply to this gift. In Ma Than v. Maung Bagyan,88 a case decided under the law as it stood before the amendment, a suit was instituted by A, the plaintiff, in the Township Court at Bogale, which could deal with suits upto R s. 500 in value. B, the defendant, pleaded inter alia that on a correct valuation, the suit would be found to be beyond the pecuniary jurisdiction of the court. The court framed a preliminary issue as to the proper valuation of the suit and recorded a finding after investigation and evidence that the valuation of the suit would be Rs. 750. Therefore, the court where it was filed did not have the pecuniary jurisdiction to try it. It accordingly directed that the plaint be returned.89 In Nathu Singh v. Anand Rao,90 a minor member of the joint family instituted a suit for partition of the joint family property against his father in a wrong court and the father executed a mortgage of the same property subsequent thereto, but before the plaint was presented to the proper court. The minor contended that the mortgage was hit by the rule of lis pendens. Dismissing his contention and holding that the doctrine applied, the court said: The only order that was made in the proceedings pending at the time when the mortgage was executed was an order that the plaint should be returned for presentation in a proper court. The suit in which the decree for partition was passed was not instituted until after the mortgage was executed and therefore the doctrine of lis pendens cannot apply.

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Specific Right in an Immovable Property The litigation must involve a specific right in immovable property, such as a dispute with respect to title, possession or a right of alienation, etc. Where merely a charge is created on immovable property by a consent decree in a money suit, the suit does not involve any question as to any right in the immovable property directly and specifically, and as such the doctrine of lis pendens does not apply.1 The doctrine applies to a sale,2 a suit for specific performance of contract,3 suits for pre-emption,4 mortgage suits,5 to lease,6 to easement,7 to suit for maintenance with a prayer that it be charged on a specific immovable property,8 to an application to file a private award creating a charge for maintenance,9 to a suit for declaration of charge upon specific immovable property10 and to a suit for injunction.11 The doctrine is not applicable to a suit for maintenance where no property is charged,12 unless a charge is claimed,13 or claims to money demanded,14 or a suit for rent,15 or to specific movables16 and all personal actions and cases where no specific property17 is charged, or to administration suits18 or suit of accounts,19 and suits for partition in which neither the shares nor the rights of the parties are in dispute. However, where the right is disputed and the shares are not ascertained, the doctrine applies.20 Directly and Specifically in Question A right to specific immovable property must be specifically and pointedly in dispute in a suit in order that a decree made thereunder may affect the purchase pendente lite.21 Ordinarily, a mis-description of the land in the pleadings will prevent the operation of the doctrine but if in spite of the mis-description22 or a deliberate omission23 the property is sufficiently identifiable, the doctrine will apply. Where, by a subsequent amendment, certain property in included in the plaint but before the amendment has been made the property has been purchased by a bona fide purchaser for value without notice of the defect of the title, the doctrine will not apply.24 Immovable Property The doctrine applies in case of immovable property only25 and not where the subject matter is movable property,26 such as standing timber27 or a pledge of ornaments.28 TRANSFERRED The term ‘transfer’ includes both an absolute transfer as well as a partial transfer. Thus the doctrine applies to a sale,29 a grant under a lease30 including a lease created by a mortgagor;31 a transfer by way of mortgage or one by exchange or an oral gift under Muslim law.32 Any transfer made with the permission of the court and in accordance with the terms imposed by it will not be subject to the rule of lis pendens.33 MORTGAGE

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The term transfer includes a mortgage and a mortgage effected of the property where it is the subject matter of litigation would be affected by the rule of lis pendens. A suit for mortgage involves a right directly and specifically in an immovable property, and a transferee pending a suit for enforcing a right under a mortgage is subject to the rule of lis pendens.34 Where a mortgagor, during the pendency of the suit grants a lease of the property, the auction purchaser’s rights as against the lessor will be superior,35 unless he asks for joining as a party and for an opportunity to redeem the property.36 A person who purchases the right of redemption during a proceeding for foreclosure is hit by the rule of lis pendens.37 Right Created before the Filing of the Suit Transfers made or rights created under a transfer38 before the suit39 or a deed of transfer registered after but executed before the filing of the suit,40 or the acquisition,41 or enforcement42 of a right existing prior to the institution of suit, or acquisition of property partly before and partly after the suit,43 is not affected by the rule of lis pendens. However for this, the rights must be created with the help of a document capable of taking effect in law. A lease executed for more than a year, if executed without registered document is not effective in law, and would not be called a transfer of property creating any rights in favour of a third party. In Supreme General Films Exchange v. Brij Nath Singh Deo,44A, the owners of an immovable property had borrowed a sum of R s. 2,50,000 from B on the strength of bales of cotton. As this security was not sufficient, they mortgaged the immovable property (theatre) in favour of B. A was unable to repay the loan and B filed a suit in 1954 that ended in a compromise in 1960, as per which the theatre was to be sold and the loan amount was to be realised from the sale proceeds. This theatre was in occupation of a tenant who had its possession since 1940. However, this possession since 1940, was under an unregistered lease deed for the purposes of running a cinema and had expired in 1946. Since then, no further lease deed had been executed in their favour till 1956. It was only in 1956 that in response to a suit for specific performance of contract filed by the tenant as against A, that A executed a registered lease deed in the tenant’s favour for a period of eight years with an option for renewal till 1970. It should be remembered that this property, with respect to which the lease was executed, was the subject matter of a dispute in a court of law from 1954 till 1960. Thus, the execution of the lease was during the pendency of the litigation. As this very property was kept as a security, with the mortgagee, and the mortgagee had caused the property to be sold with the help of the court, there was a right in specific immovable property directly and specifically in question. The tenant however contended that as they had an antecedent right on the property created with the help of a letter in 1948 itself, no new rights were created with the help of this registered lease deed. It was a mere continuation of an antecedent right and therefore the same was not hit by the rule of lis pendens even if it was executed during the pendency of the litigation. This lease deed, that was executed in pursuance to a suit filed by the tenant against A in 1954 itself, was seven months later to the filing of the suit by the mortgagee. The Supreme Court rejected the contention of the tenant and held that since the earlier right created in favour of the tenant was with the help of a document that was incapable of taking effect in Page 95 of 151

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law, the lease of 1956, for the first time created an interest in the property in their favour. Since this creation was pendente lite, this transfer of a right would be hit by the rule of lis pendens. Consequently, the tenant was to take the lease in his favour subject to the outcome of the decision of the court. The result would be that he would have to vacate the premises. If he had an antecedent right created in his favour prior to the commencement of the suit, then he would have been able to retain the possession of the premises as per the terms of the lease. But in the present situation, since the lease was executed in their favour, while the suit was pending in a court of law awaiting decision, the rights of the tenant were subject to the decision of the court. Where the filing of the suit and the transfer of the suit property takes place on the same day, there is no presumption that the suit was filed earlier and it must be proved that it was so filed,45 and the onus of proving it is on the person who wants the benefit of lis pendens.46 A suit to enforce a time barred pre-existing right is for the creation of a new right, and is therefore hit by lis pendens.47 Right of Pre-emption A right of pre-emption gives a preferential right to a person to have a transfer effected in his favour on a priority basis, in accordance with the terms already agreed upon by the parties. A right of pre-emption, therefore is one, in which a right in a specific immovable property is directly and specifically in question and therefore is covered under this section. Thus, transfer of the suit properties48 during a suit of pre-emption including a re-sale to the transferor by the transferee during a suit for pre-emption is hit by rule of lis pendens,49 unless the purchaser has a superior50 or equal right of pre-emption.51 In case of equal rights of pre-emption the validity of a compromise decree will not be effected by lis pendens.52 A mere agreement to sell53 does not defeat the suit of another pre-emptor.54 A customary right of pre-emption must subsist up to the date of decree.55 Or Otherwise Dealt with The property that is the subject matter of the litigation cannot be transferred or otherwise dealt with.56 The term ‘or otherwise dealt with’ includes a case of partition.57 Therefore, a partition of the property affected during the pendency of a litigation involving this property would be subject to the rule of lis pendens. It would also cover a contract for sale,58 or a release or surrender,59 but does not include any forcible taking of possession.60 PARTITION A partition of the joint Hindu family property does not amount to a transfer, but as aforesaid, is covered under the expression ‘or otherwise dealt with’. Similarly, a partition suit involves rights in specific immovable property, and a transfer of property when a suit for a partition is pending in a court of law would be hit by the rule of lis pendens.61 Where one of the coparceners files a suit for partition, mortgage,62 or sale of property by karta,63 or a sale by one coparcener to a stranger,64 will be subject to the rule of lis pendens. Where during a Page 96 of 151

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partition suit some properties were not included in the plaint as the joint family properties and on the application of a coparcener, the court orders for their inclusion but the karta sells them before their inclusion, the sale will be hit by lis pendens.65 In Jayaram v. Ayyasami,66A was the karta of a joint Hindu family, comprising his brother B and their sons. B filed a suit for partition against the karta demanding his share out of the joint family property. Soon after that, and during the pendency of this partition suit, the karta sold a portion of the joint family property for satisfaction of pre-existing personal liabilities to his son in-law. Another portion of the property was sold through an auction for realisation of the dues under the provisions of s. Sections 7 of the Land Improvement Loans Act, 1883, which empowers the authorities to recover the loan amount, from out of the land for the benefit of which the loan was granted as if they were arrears of land revenue due in respect of that land. B challenged both these sales as hit by the rule of lis pendens. His main contention was that his rights in the property cannot be made subordinate to that of the seller, as the karta sold the property for his personal liabilities, and the second sale was due to karta alone taking the loan, and it was only a part of the loan amount that was utilised for the benefit of the land. The issue before the Apex Court was whether satisfaction of pre-existing liabilities of A alone had priority over the rights of other members of the joint family. The court held that as a matter of principle, any land for the improvement of which loan is shown to be taken would be excluded from the preview of the doctrine of lis pendens. However, even an involuntary sale would bind the share of only A, and would not bind the shares of other members of the joint family who were not party to it. The court said, The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the court which is dealing with the property to which claims are put forward.

The court held that doctrine of lis pendens would apply here to both the sales, and the sale would be binding on the share of only the seller, and not B and his sons. PARTY TO THE SUIT The prohibition that such property cannot be transferred or otherwise dealt with by any party to the suit shows, that if the alienation is by a third party, then the doctrine will not apply. Parties to the suit are the ones who file a petition, i.e., the plaintiff and the one against whom the relief is prayed for, i.e., the defendant and/or their representatives on their demise. The restriction applies to them. Thus, where a legal representative of a defendant in a pending suit effects a transfer and is subsequently substituted in place of the defendant after his death, lis pendens will apply,67 but this doctrine does not affect the alienation of the property by a stranger to the suit, nor does it affect the right of the parties claiming title paramount to the parties to the suit. A transfer made by a person before he is made a party is not affected by lis pendens.68 For instance, A is the owner of the property but allows B to mange it. B sells the property to C. A files a suit against B for reclaiming the possession of the property and also for a declaration of title to the disputed property. He fails to make C as a party. During the pendency of the suit, Page 97 of 151

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C sells the property to D. As C is not a party to the suit, this sale by him will not be hit by the doctrine of lis pendens. Decision Binding on the Alienee Ordinarily, the judgment binds only the parties to the suit, but he who purchases during the pendency of an action is bound by the judgment that may be made against the person from whom he derives title, irrespective of the question of the notice69 as if he was a party to the suit.70 A transferee with consideration and without notice of the pending litigation is bound by the charge created by the decree,71 as the broad purpose is to maintain the status quo unaffected by any act of the parties,72 and make the sale pendente lite subordinate to the rights based on the decree in the suit,73 and not to declare the sale invalid or defeat any just or equitable claim.74 There is no need to implead alienee pendente lite as a party to the principle suit. The effect of s. 52 is that a lis pendens transferee is bound by the decree of the court, irrespective of whether it was granted on contest, ex-parte or on compromise. The parties affected by this transfer pendente lite are under no obligation to implead a lis pendens transferee as a party to the litigation.75 At the same time, there is no prohibition if they themselves want to be impleaded as parties to this suit. In Jagannath Mahaprabhu v. Pravat Chandra Chatterjee,76 the plaintiff, A, filed a suit for a decree for eviction of the defendant, D and for recovery of possession and damages for illegal occupation. During the pendency of this litigation, D with the help of a registered sale deed, sold the suit properties to X and Y. X and Y filed an application for being impleaded as parties to the suit. The learned munsif allowed their application and impleaded them as parties on the ground that D had already parted with the property he may not actively and sincerely pursue the suit and this may adversely affect the rights of the transferees pendente lite, who had an interest in the property. A full Bench of the Orissa High Court held that though there was no need for the transferee pendente lite to be impleaded as a party, yet the court can exercise their discretion in this matter which may be exercised judicially, and an alienee would ordinarily be joined as a party as that may enable him to protect his own interests. Status of the Transfer The language of the section is prohibitive in nature. Section 52 uses the phrase ‘the property cannot be transferred or otherwise dealt with’. At the same time, the transfer pendente lite is not void,77 but is only subject to the outcome of the litigation.78 The transfer is thus voidable at the instance of the affected party,79 except to the extent that it may conflict with rights decreed under the decree held to be valid and operative as between the parties.80 The transferee only takes the title of the transferor subject to the result of the pending litigation.81 The rule does not annul the conveyance but only renders it subservient to the rights of the parties to the action, as determined by the decree.82 The doctrine does not defeat any just and equitable claim, but only subjects them to the authority of the court dealing with the property to which Page 98 of 151

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claims are put forward.83 The Apex Court has held:84 The effect of Section 52 is not to wipe it (transfer) out altogether but to subordinate it to the rights based on the decree in the suit. As between the parties to the transaction, however, it was perfectly valid and operated to vest the title of the transferor in the transferee.

RIGHT OF ALIENEE PENDENTE LITE TO BE IMPLEADED AS A PARTY TO THE LIS The predominant view is that a transferee pendent lite cannot seek impleadment where transfer was affected during the pendency of appeal without the permission of the court85 and with full knowledge that the status quo order was in existence.86 The petitioner in the suit would be dominus litus, and if he wants to take a calculated risk, the court may not exercise its discretion to implead him,87 and he cannot contend that he has any independent right over the suit property over and above the right of the seller who is a party to the lis.88 The reason being that a person who violates the law can never be treated as holding a legal enforceable right89 and thus a resistance at the instance of a transferee of judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and he is therefore not entitled to get his claim adjudicated.90 The Apex Court has explained the position in the following words:91 Where a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record; yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary.

On the other hand, some high courts92 have expressed the opinion that after affecting a transfer of the property, the transferor would invariably not pursue the litigation as vigorously as he might have been doing previously. Since he obtains consideration, his interest in the litigation and also the property would diminish. He may even collude with the other party and the interest of the alienee would be adversely affected. Since due to the application of doctrine of lis pendens, the interests of the party to the lis are already protected, no harm would be done to him if the alienee is impleaded as a party. Rather in the interests of justice, both the parties should be given a fair chance at the trial. Thus the Orissa High Court has held that a transferee pendent lite can be impleaded as a party to the litigation.1 RIGHT OF ANY OTHER PARTY UNDER THE DECREE The doctrine does not apply merely to actual transfers or rights which are the subject matter of litigation but to other dealings with it ‘by any party to the suit or proceedings, so as to affect the right of any other party thereto.2 ‘Any other party’ means a person between whom and the party alienating there is an issue for decision, which might be prejudiced by the alienation. Page 99 of 151

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The rule of lis pendens is enacted for the benefit of the third party, and not for the party making the transfer.3 This statutory right is given to the party to the suit other than the alienating party, to have an alienation set aside so far as it is necessary for the protection of his own rights.4 TRANSFER TO DEFEAT OR DELAY CREDITORS

Section 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 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. 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 sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

GENERAL PRINCIPLE The emphasis in law to pay one’s debts has always been very strong. In fact, even under religion based laws, prominence has been given to the law relating to debtors and creditors. In the Mitakshara for example, it is the first law relating title out of the 18 titles on law. The TP Act also recognises the need to safeguard the interests of a creditor. The section incorporates a rule of equity, justice and good conscience that prevents a person to defeat the legitimate claims of his creditors, by dubious means.

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For instance, A is the owner of a land. He borrows R s. 20,000 from B on the strength of a promissory note. The money was to be paid in two years. When A fails to repay, B proceeds against him in a court of law. Apprehending that the money decree obtained by B will be enforced against the landed property, A transfers the property with the intention that the creditor should not be able to enforce the decree against the same to X. X knows of A’s intentions, and both hurriedly get the land mutated in the name of X. This transfer that A effects with the sole intention to defeat the claim of his creditor will be voidable at the creditor’s option, but if the transfer was effected by the debtor before the institution of the suit, its validity would not be effected.5 In the same situation, if X, to whom the property has been transferred, is a bona fide purchaser, who has no notice, actual or constructive of the intentions of the transferor/claims of the creditor, his interests would be protected. The creditor would have no remedy against such a purchaser. Ingredients of the Section (i) transfer of an immovable property; (ii) the transferor owes financial liability to creditors; (iii)the transfer is with intention to defeat or delay creditors; (iv)such transfer is voidable at the option of the creditors. Transfer The first essential is that the transferor transfers his immovable property with an intention to delay or defeat the rights of the creditors. There must be a transfer of his property. The term transfer includes a sale, a marriage settlement,6 a deed of appointment,7 a surrender of a life estate,8 a relinquishment,9 a collusive award or decree,10 but not a deed of dissolution of partnership.11 Fictitious Transfers The rule applies only when there is a real transfer of the property so as to create a vested title in favour of a third party. This title may be vitiated at the instance of a creditor whose claims have been fraudulently delayed or defeated by the transferor. If the transfer is a fictitious one, so that the real owner remains the original transferor all along, this transfer would not be subject to the application of the rule enunciated under s. 53. It is only when the transfer is a genuine one, but the intention behind effecting this transfer is not genuine or bona fide that the rule applies. For instance, A the owner of an immovable property gets the land mutated in favour of his son, without effecting a transfer. This transfer is not a real one as the transferor possesses the title to the property and the claim of the creditors can be enforced against this property.

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Therefore for the rule to apply, it must be proved that the transfer with intent to defeat the rights of the creditors is a real one,12 and not a sham and fictitious transfer, which is no transfer at all. A fictitious transfer is outside the scope of this rule,13 and need not be set aside here.14 In such a sale, no equities are created in favour of the vendee.15 A benami is a sham transfer16 and the real title is with the transferor throughout.17 Defeat or Delay Creditors The basic principle underlying this section is that the claims of creditors should not be allowed to be delayed or defeated by removing the possible security, against which the claims of such creditors can be executed. The section uses the term ‘delay or defeat’, so any transfer that has the effect of delaying the realisation of the claim of the creditor would also be voidable at the option of such creditors.18 A transfer made to defeat or delay the creditors is binding on the executant and those claiming under him.19 Partition of Hindu Joint Family Property Though partition of joint family property is not a transfer20 within the meaning of the Act,21 yet fraudulent partitions would attract the application of this rule.22 Thus, in a partition where no property is allotted to the indebted father23 or no provision is kept for repayment of his debts24 or where properties are allotted to a sharer in such a way that the creditor cannot realise his dues because the properties are very meager,25 or the creditor will not be able to touch the share,26 the partition would be void at the creditor’s option. However, the son of an indebted father can enforce partition to save his share from attachment.27 PROPERTY Section 53 clearly says that the rule applies when immovable property only28 is transferred with a fraudulent intention, but under the rules of equity, justice and good conscience,29 the principle has been applied to movable property as well. CREDITOR A creditor is a person to whom a financial liability is owed and the term includes both a secured and an unsecured; existing or a subsequent creditor.30 It includes not only those who have proved their claims and obtained a decree but also ordinary creditors who still have a claim to prove.31 The principle applies even where the debtor intends to defeat a single creditor32 out of many. A subsequent creditor may impeach a fraudulent transfer.33 It is not necessary that a man should be actually in debt at the time when he enters into a voluntary settlement of his property, for if a man does it with a view of being indebted in future time34 or where on the eve of going into trade he takes the bulk of his property out of the reach of those who may become his creditors,35 it is equally fraudulent and will be set aside, but a voluntary settlement made by a person having means to pay his present debts outside the property transferred is Page 102 of 151

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valid.36 Mere fact of subsequent indebtedness is not evidence of a fraudulent intention against subsequent creditors.37 A Muslim wife in lieu of her dower debt38 is a creditor. Similarly, a deserted Hindu wife in her claim of maintenance,39 but not where she is not entitled to separate maintenance,40 is a creditor for the purposes of this rule but an auction purchaser who is not a decree holder,41 a subscriber of a chit fund for its future installments42 are not creditors. It is not necessary that the debt should be merged in a decree.43 Defeat or Delay Creditors The intention must be to defeat or delay the creditors generally, i.e., all the creditors44 or even a single creditor,45 but a mere preference of one over the other creditor46 is not enough for the application of this rule unless the transferee shares the fraudulent intention47 or it is with intention to defeat a particular creditor’s interest.48 Where the price realised from one of the creditors is considerably in excess of the debts49 or where a fictitious debt is included in the consideration50 or where more property is transferred than necessary,51 it is an evidence of intent to defeat the creditors generally. Mere fact that a portion of the property is transferred is immaterial unless there is cogent proof that there is other property left which is sufficient in value and easily available for the creditors.52 Inadequacy of consideration may not itself be sufficient to make the transaction voidable.53 Transfer Partly for Genuine Consideration and Partly Fraudulent The rule operates as against fraudulent transfers. Where in a transfer two considerations are stated, one of which is valuable and separable from the other, effect will be given to the instrument to the exact amount of the consideration which is valuable and to the extent the transaction cannot be regarded as fraudulent,54 but where a substantial portion is for fraudulent intention55 or the two parts are not separable,56 the whole transaction would be voidable. Frame of Suit A suit instituted by a 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.57 A suit to avoid a transfer can be filed by a single creditor if he is the sole creditor,58 or where it is to enforce his right under the decree,59 but in case of multiple creditors it must be filed on behalf of all the creditors.60 This principle also ensures that the transferee should not be exposed to multiplicity of suits at the instance of various creditors.61 A dismissal of the suit of one creditor would bind all creditors.62 However, a creditor is not obliged to defend a suit on behalf of whole of creditors.63 An attaching creditor may claim this rule as a personal defence although he himself may not have filed the representative suit for avoiding the transfer.64

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Burden of Proof The primary onus of proving that the transfer was effected with intention to defeat or delay the creditors is on the creditor65 but once he proves that, then the burden is on the transferee to prove that he bought the property in good faith and for consideration66 which he can do by establishing that he paid fair value for the property.67 Where the transferee’s claim is dismissed and he brings a suit to set aside that order and to establish that the transfer in question is real and valid the onus is on him to prove it.68 A mere suspicion is not sufficient to set aside the sale.69 Presumption of Fraudulent Intention There is no presumption in law that a transfer is affected with an intention to delay or defeat the claims of the creditors and the existence of fraudulent intention has to be proved.70 It would not be presumed by the court.71 Each case has to be decided on its own merits,72 but where the transferee was in embarrassed circumstances and the transfer is between near relations,73 or members of a small community,74 or the transfer was a cover up primarily to retain the benefit for the transferor,75 unless the benefit is very small,76 these would be evidences of fraudulent intention but merely because the transfer was without consideration,77 or was for discharge of bona fide debt in accordance with family policy,78 or was to a female descendant in absence of present debts, would not indicate fraud.79 Transfers without Consideration to Defraud Subsequent Transferees Sub-section 2 of s. 53 specifically provides, that every transfer of immovable property made without consideration with intent to defraud a subsequent transferee is voidable at the option of such transferee but no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.80 A transfer for love and affection,81 or for consideration of permitting the husband to marry a second time,82 or for a dower debt is a valid consideration,83 and not a fraud on creditors. Where a fraud based transfer was effected through a registered sale deed and the same was sought to be nullified by filing a suit, it was held that the transfer can be revoked by executing a registered deed of cancellation by the true owner of the property.84 Transferee in Good Faith and for Consideration A bona fide transferee who takes the property for consideration85 and in good faith86 without actual or constructive notice of the claim of the creditors is protected under the section, even though the transfer may be with a fraudulent intention87 on part of the transferor. If the transferee is aware of the transferor’s fraudulent intentions88 or aids or abets it,89 then despite consideration, the transfer would be bad90 unless he was not a party to the fraud.91 A transferee having constructive notice of fraud will be presumed to be aware of the fraud92 but an awareness of impending execution is immaterial.93 Where property is purchased five days after the notice was sent to the transferee by the creditor on his coming to know about the

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clandestine sale, the transferee has notice of the fraudulent transfer.94 A creditor is a transferee in good faith even where he is aware of the proceedings of another creditor against the transferor95 as he is protecting his own interests and not defeating other creditor’s interest.1 Where a transfer is effected with intent to defeat or defraud a creditor but before the creditor could act the transferee effects a second transfer to another transferee who takes the transfer bona fide and for consideration, then even though the first transfer was subject to defeasance on a creditor’s suit, the second transfer will be good2 more so when the creditor was aware of the impending transfer and his omission to impeach the first transfer enabled the transferee to effect a second transfer.3 DOCTRINE OF PART PERFORMANCE

Section 53A. Part performance.— Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

GENERAL PRINCIPLE The section seeks to protect prospective transferees, and allows them to retain the possession of the property, as against the transferors, who after executing an incomplete instrument of Page 105 of 151

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transfer, fail to complete it in the manner specified by law, without there being any fault on part of the transferee. It has to be understood clearly, that in execution of a transfer, there are corresponding duties imposed by law on both the transferor and the transferee. Generally, upon the transferor is the duty to execute the transfer deed in a manner specified by the law, and upon the transferee is the duty to pay the consideration as and when required by the transferor. It must also be understood that in matters relating to execution of the transfer deed, the transferor only has to play a lead role. It is he who has to sign the deed, it is his signatures that are to be attested by the competent witnesses and it is he at whose behest the deed would be registered at the Registrar’s office. On the other hand, the transferee’s main duty is to pay the consideration, and he can be asked to do the same even in advance or at any time the transferor may specify him to do so. In situations where initially the parties agreed to a transfer of the property and in furtherance of any kind of written agreement, the transferor gives the possession of the property to the transferee, it would show that they had the intention to act upon the agreement that they had entered into. If under these circumstances, the transferee has either paid the full consideration or is ready and willing to fulfill his part of the contract but the transferor does not want to go ahead with the transfer, under the doctrine of part performance, the transferor or any one claiming under him would be debarred from getting back the possession of the property which has once been given to the transferee. For example, A and B enter into an agreement for the sale of A’s house for a consideration of Rs. 10 lakh. A executes an agreement for sale of property document of sale and signs it. B pays the advance amount of five lakh rupees, and as per the terms and conditions agreed upon as between the parties, the rest of the money is to be paid to A by B at the time of the delivery of possession of the property. A delivers the possession and B pays the rest of the amount. However, the transfer in favour of B is not complete as it is merely an agreement to sell and is not a sale deed. After around a month, A wants to give back the amount already paid by B to him as he has got a better offer for the same property from C and wants B to vacate the possession. B refuses, and upon his refusal, A files a suit for eviction with a prayer to the court that possession of the property be delivered to him. B raises the defence of retention of possession under the doctrine of part performance of the contract under s. 53A. A would not be able to get back the possession of the property as the possession of the same was delivered to B in furtherance of the contract. Where there is a contract to transfer any immovable property in writing,4 signed by the transferor or on his behalf and from the language of it, the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,5 then notwithstanding that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any rights in respect of the property of which the Page 106 of 151

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transferee has taken or continued in possession.6 English Equitable Doctrine—How far Recognised in India The doctrine of part performance is based on the equitable rule of part performance developed under the English law by the Court of Chancery. The first case of this kind was Foxcroft v. Lyster,7 wherein Lord Redesdale observed, It was against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser and the other party to enjoy the advantage of the money he had laid out.

Under English law, s. 4 of the Statute of Frauds, 1677, of the United Kingdom provided that no person shall be charged upon any contract for the sale of lands or any interest in land etc., unless the agreement or some memorandum or some note thereof shall be in writing and signed by the party to be charged there under or some other person thereunto be him lawfully authorised. This provision was substantially enacted in s. 40 (i) of the Law of Property Act, 1925, with this departure that sub-s. (2) specifically provides that the substantive provision in sub-s. (i) does not affect the law relating to part performance or sales by the court. As no action could be brought on oral agreements, the doctrine of part performance was devised by the Chancery Court with a view to mitigating the hardship arising out of an advantage taken by a person under an oral contract. Failure to enforce it would have permitted such person to retain the undeserved advantage by the equity court enforcing the contract. In reality if the contract was not enforced because the Statute of Frauds did not take cognizance of oral agreements, a person could take advantage under the oral agreements and perpetuate the very fraud that the statute sought to prevent. Yet at the same time only an oral agreement could not be made the basis of a claim relating to immovable property. Therefore, the Chancery Court, while granting relief of specific performance, wanted to be wholly satisfied and in order to ascertain the existence of the oral contract before granting a relief of specific performance the court wanted to be satisfied that some such act has been done which would be unequivocally referable to the oral contract as would prove the existence beyond suspicion, meaning part performance of the contract. The act relied upon as evidencing part performance must be of such nature and character, that its existence would establish the contract and its implementation. Each and every act subsequent to contract by itself may not be sufficient to establish part performance. The act must be of such a nature as being one unequivocally referable to contract and having been performed in performance of the contract. In Lady Thyme v. Earl of Glengall,8 it was observed: Part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement.

The doctrine of part performance has been crystallised in India by the statute,9 but it is not available apart from s. 53A.10 It has only partially been imported from the English doctrine of Page 107 of 151

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part performance11 and gives rise to not merely equity, but a statutory right,12 which is passive13 and more limited than English equity.14 Under English law, the doctrine of part performance can be invoked by a person even on the strength of an oral agreement. It can be used both as a defence and as a weapon of attack, i.e., it can be used even to enforce a right of possession and not merely to protect it. TRANSFER The term transfer includes an absolute transfer such as a sale, but not a gift and it also includes a transfer where a right in the immovable property is transferred. Therefore, the doctrine of part performance applies to a lease,15 mortgage,16 exchange,17 sale,18 release,19 and even to a partition by metes and bounds,20 but not to a kabuliat executed by a lessee,21 or a family settlement22 unless it involves a transfer,23 or to a right of pre-emption, unless, it is enforced.24 Contract in Writing Unlike the situation under English law, the first mandatory requirement for the application of the doctrine of part performance is that there must be a contract in writing.25 The doctrine does not apply in cases of oral contracts,26 or where there is complete absence of any written contract or agreement of sale.27 Writing relied upon must itself be a contract,28 though there is no need for a formal agreement,29 but if a written agreement and not a mere memorandum30 incorporates a previous oral agreement,31 or where the correspondence between parties summarised in a government resolution establishes the agreement,32 or an informal contract, it is sufficient even if it comes into existence later,33 but a written agreement whose terms have materially been altered by a subsequent oral agreement34 or a recital,35 will not be sufficient for the application of the doctrine. Where the original contract is with the transferor, the transferee can prove the agreement with secondary sources,36 but a writing referring by mistake to another piece of property,37 or a mere reference38 or quotation in another document39 to an agreement or a reference to an oral sale in a mutation recorded by a patwari,40 is not sufficient. Even where the document is in writing, failure to prove the necessary conditions necessary to make out the defence of part performance would not attract the application of the doctrine.41 SIGNED BY THE TRANSFEREE The second condition for the application of the doctrine is that not only the contract should be in writing, it should also be signed by the transferee,42 or on his behalf,43 by a person whose act binds the transferee.44 Even if there were an instrument in writing, but if the transferor or a competent person on his behalf did not sign it, there would be no contract. Owner of a portion of the property cannot sign on behalf of the firm as the partner.45 The Document must be Registered

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Till 24 September 2001, an exception was created in favour of the document that was produced in evidence for claiming the protection of the doctrine of part performance. Ordinarily a document that is required by law to be compulsorily registered, if not registered, cannot be admitted in evidence to prove a claim or justify a right over immovable property. As per s. Sections 49 of the Registration Act, 1908, as it stood before the amendment of 1929, the rule was that any document relating to immovable property that was not registered could not be admitted in evidence to prove a claim. This section was amended in 1929, to accommodate unregistered instruments in relation to transfer of immovable property but only for the purposes of taking the benefit of doctrine of part performance. Thus, s. 53A incorporated the words, ‘...then notwithstanding that the document though required to be registered has not been registered’. The implication of these words was, that an unregistered contract of sale of property, could be relied upon by the transferee, to seek the protection of this equitable doctrine to retain his possession over the property. The Transfer of Property Act, 1882, was amended in 2001, and by virtue of the amendment, the exception in favour of unregistered document allowed in evidence to protect possession under the doctrine of part performance was withdrawn. At the same time, s. Sections 49 of the Registration Act, 1908 was also amended, and the clause giving exemption to unregistered document for the purposes of invoking the doctrine of part performance was deleted. The law, therefore, stood again at the pre–1929 position. Presently, the requirement of the law is that besides there being an instrument in writing that is signed by the transferor or anyone on his behalf, this document on which the transferee wants to rely on to protect his possession, must be registered. At the same time, doctrine of part performance can be invoked only in case of partly performed contracts. If a contract of sale is registered, it would be a complete transfer. This is why this doctrine can be invoked in cases where there is an agreement to transfer the property, and not a contract to sell it. If on the strength of this agreement to sell the property, possession has been delivered, the possession can be protected by the transferee only when this agreement to sell was registered, and not if it was unregistered, as was the case before the amendment of 2001.46 Immovable Property The doctrine is applicable only to immovable property and not to movable property.47 Reasonable Certainty of Nature of Transaction The language of the document must be such that the terms of the written contract must be ascertainable with reasonable certainty directly, or even by secondary evidence,48 otherwise the doctrine does not apply.49 It should be clear by a reading of the deed as to what is the nature of the transaction, whether it seeks to convey all the rights in favour of the transferee or only some of the rights in the property. CONSIDERATION

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The transfer must be for consideration and therefore, is inapplicable to gifts.50 Taking of Possession by the Transferee The transferee must have taken possession51 of the property in part performance of the contract52 and not in any other capacity53 or for any other purpose.54 For instance, A agrees to sell his house to B in March and a sale deed is drawn up. A makes it very clear to B that the possession under the sale deed would be handed over to B only after the festival of Diwali is over, which falls in November. B has no place to live and A permits him to occupy the premises for a period of two months. Here, possession is given to B under permission for a specific purpose and not in furtherance of the contract of sale. If the contract fails to take effect, B cannot retain the possession on the strength of the doctrine of part performance. Similarly, a plea of adverse possession is contrary to acquisition of possession lawfully by the transferee, and therefore unavailable to the possessor of the property.55 It is not necessary that possession should be with respect to the whole of the property56 or must have been given by the vendor to the transferee.57 Continuation or Retention of Possession This equitable doctrine of part performance can be misused by persons, in lawful occupation of the property, other than the owners of the property, if they were inducted into the premises, under a particular contract such as a tenant or a mortgagee in possession, and then wanted to retain possession in the garb of a partly performed contract. In such cases, the courts are very vigilant and a duty is imposed on the transferees claiming protection of the doctrine to show that they had done something in furtherance of the contract to prove the genuineness of their claim. What that act would be, would depend on the facts and circumstances of the case and no hard and fast rule can be laid down. Thus, where the possession is given to a person in furtherance of the contract that is partly performed, this acquisition of possession in itself is sufficient to invoke the doctrine of part performance. However, in cases where the transferee already had the possession of the property and retains it after a partly performed contract, he must show that besides the retention of the possession, he has done some act in furtherance of the contract that can show clearly his altered position. Mere continuation of possession by a person already in possession prior to the contract is not sufficient.58 Continuation of possession by a tenant59 after termination of lease under an alleged contract,60 or agreement of sale,61 or an alleged renewal,62 or a mortgagee in possession,63 after the expiry of lease or mortgage is not an act done in furtherance of contract. Where a person is already in possession of the property as a tenant and remains in possession after the termination of lease,64 or under the renewal clause but not independent of the old contract, he will be a tresspasser after the expiry of lease or its renewal period and is not entitled to the benefit of part performance.65 Where the agreement provides that possession will be given to the tenant only at the time of the sale deed, mere retention is not sufficient.66 If the tenant continues in possession of the disputed premises in pursuance of the interim order obtained by him during the pendency of revision, he is not in Page 110 of 151

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occupation of the disputed accommodation in capacity of a transferee, but as a tenant against whom decree for eviction has been passed. His possession is not in part performance of any agreement to transfer nor had he shown any willingness to perform his part of the contract.67 Similarly, where under the terms of the contract only temporary possession is given for the express purpose of carrying construction work, after completion of work, the owner is entitled to reclaim the possession and part performance will have no application to his case.68 Act Done in Furtherance of the Contract To qualify for the protection of this doctrine, it must be shown that—there is a contract to transfer the property in writing, signed by the transferor, the document is registered, and the terms necessary to constitute the transfer can be ascertained with reasonable certainty. After establishing the aforementioned circumstances, it must further be shown that the transferee, in part performance of the contract, has either taken possession of the property or any part thereof, or the transferee being already in possession has done some act in furtherance of the contract. The acts claimed to be in part performance must unequivocally be referable to the pre-existing contract,69 and acts of part performance must unequivocally point to the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract. When series of acts are done in part performance, any one act by itself may or may not be of such a conclusive nature as to conclude the point one way or the other but when taken with many others, payment of part of the consideration or the whole of the consideration may as well be shown in furtherance of the contract. However, merely advancing of money for the purchase of stamps to be put on the sale deed,70 repairs and improvements effected under a mortgage,71 are not acts done in furtherance of the contract for subsequent sales, but payment of reduced rent after a renewal of lease,72 taking electric connection and making improvements,73 or putting up a house soon after being put in possession under an unregistered sale deed74 are acts done in furtherance of the contract. Where the transferee is already in possession of the property under an agreement of sale and the transferor accepts delayed payment of installment under the agreement by the transferee, and the transferee was willing to fulfil his part of the contract, the benefit of part performance would be available to him.75 In Babu Murlidhar v. Saudagar Mohammad Abdul Bashir,76 there was an unregistered agreement of sale executed by the mortgagor in favour of the mortgagee in possession that stated that after the date of the agreement, the mortgagee who had been in possession as such would become the owner of the property and that he could get his name mutated into mutation register of the municipality and in implementation of this agreement of sale, the mortgagor himself made an application for mutation to the municipal authorities and the name of the mortgagee was mutated as the owner of the property. This was held as sufficient act done in furtherance of the contract by the parties in a case where the mortgagee already had the possession of the property and continued in possession. In Jahangir Begum v. Gulam Ali Ahmed,77 merely putting up some structure on the property by the party in possession and retention of possession was not considered as an act sufficient to enable him to take the benefit

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of part performance. Similarly, in Kukaji v. Basantilal,78A had mortgaged his house to B by a usufructuary mortgage, i.e., possession was delivered to the mortgagee. Subsequently, he sold the house to B in consideration of the mortgage debt and the amount spent on improvements and repairs on the house. The deed was not registered. Subsequently, A sold the same properties to C under a registered sale deed. C sued B for redemption of mortgage and B put up the defence of retention of possession in part performance of the contract. Negativing the defence of part performance, the court held that as B was already in possession as a mortgagee, unless he shows that he did some act in furtherance of the contract over and above being in possession, mere continuance of possession would not constitute part performance. Payment of Consideration Alone is Insufficient to show Evidence of Act Done in Furtherance of the Contract Mere payment of money or consideration is part of the contract and a duty of the transferee, and therefore, payment of part of the money or even the whole of it cannot be treated as an act done in furtherance of the contract. To begin with, under English law, it was thought that a deposit, or security or payment of the purchase money or of a part of it or at least of a considerable part of it was such a part performance as took the case out of the Statute of Frauds, but that doctrine was open to much controversy and was finally overthrown. Even otherwise, one reason why part or even full payment of money is not deemed to be an act done in furtherance of the contract sufficient to attract the application of the doctrine, is that money can be recovered and therefore, the case admits of full and direct compensation.79 In Sardar Govindrao Mahadik v. Devi Sahai, 80A mortgaged his immovable properties with B for securing a loan of Rs. 10,000. The mortgage was an anomalous mortgage, i.e., a combination of usufructuary and a simple mortgage. In pursuance of this mortgage, the possession of the property was delivered to the mortgagee. Subsequently, there were some negotiations and according to the mortgagee, it was agreed that the property would be sold to him by the mortgagor for R s. 50,000. For this sale, the mortgagee had advanced Rs. 1,000 for the purchase of stamps to be affixed on the deed. A sale deed was drawn up but was not registered in favour of the mortgagee. Rather, the mortgagor sold the property to C, through a written, attested and registered sale deed. C, along with A, filed a suit against the mortgagee, who still retained possession of the property for accounts and for redemption of the property. The mortgagee defended his possession and claimed the benefit of doctrine of part performance on the ground, that an unregistered sale deed was executed in his favour and he had retained the possession of the property in part performance of the contract of sale and his advancing Rs. 1,000 was an act done in furtherance of the contract. The trial court did not accept the defence of the mortgagee and held that the mortgagee being a mortgagee in possession, continued possession of the mortgagee after the date of the contract would not be in part performance of the contract. The court also held that no payment was made which could remotely be said to be in part performance of the contract. With respect to the payment of Rs. 1000, for the purchase of stamps and expenses of registration, it was held that the same were paid before the execution of the contract and therefore could not be said to be in Page 112 of 151

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furtherance of the contract. The High Court, on the other hand, disagreed with the finding of the lower court and held that that the doctrine of part performance applied and the mortgagee was entitled to the benefit of the same. The matter went in appeal to the Supreme Court. The court explored in detail the scope of the term ‘anything done in furtherance of the contract’ and held that to assess whether the acts done in furtherance of the contract are sufficient to attract the application of the doctrine, is to be assessed by not looking at the contract first and then the acts done; but the correct approach is to see the acts first, and then explore the possibility of there being a contract on the basis of these acts. In some cases even a single act may be sufficient, while in others, a series of acts may not be enough. The result will vary from case to case, depending upon the facts and circumstance of the case. The court held that here the act of advancing money for the purchase of stamps and meeting the incidental expenses was antecedent to the contract and not in furtherance of the contract and therefore, would be insufficient for the application of the doctrine. Here the promise that was made by the mortgagee to the mortgagor was that the contract of the sale would be a conditional contract that would enable the mortgagor to buy the property if he was able to arrange the money within a specified period of time. Further, the mortgagee had also agreed to clear all other dues of the mortgagor. However, the contract of sale prepared by the mortgagee was of an outright sale without any condition of repurchase incorporated in it. Secondly, the mortgagee had also not cleared his other dues as was promised by him. This was precisely why the mortgagor had not executed the sale in favour of the mortgagee but had sold it to C in accordance with the terms and conditions that suited him. The court therefore held that the mortgagee here was not entitled to the benefit of the doctrine of part performance. In Sunil Kumar Sarkar v. Aghor Kumar Basu,81A granted a lease of his house to B. He then took a loan from B and then sold the house to B and started living in the house as B’s tenant. A pleaded that B later re-conveyed the property in favor of A and according to the terms of reconveyance deed, the consideration was to be paid within a period of 11 months, but periodically. B however claimed that there was no agreement to sell, and filed a suit for eviction against A. A sought the benefit of doctrine of part performance. Here, as A had the possession of the property before the alleged deed of reconveyance, he had to show that not only had he retained possession but had also done some act in furtherance of the contract that would show that his position had altered and he was the owner of the property. The court said: If the tenant was already in possession of the property at the time of the contract, what has to be decided is whether he continues in possession in part performance of the contract. Therefore mere continuance in possession does not satisfy the requirements under Section 53A. Where the tenant is already in possession of the property as a tenant and continues in possession in his capacity as a tenant after the contract, it does not necessarily follow that he continues in possession in part performance of the contract. It is for this reason that a tenant is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. Therefore, the tenant must show either from the contract or some other material or evidence that he continued to possess the property not in the capacity as a tenant, for instance, he does not pay rent under one of the terms of the contract of sale in order to show that has possession is not in the capacity as a tenant, but in part performance of the contract. In addition to that the tenant also has to show that he has done some act in furtherance of the contract such as payment of necessary taxes to show that he was liable to pay the taxes as his possession was no longer as that of a tenant. Therefore, if a tenant has been in the possession in the capacity as a tenant and not in part performance of the contract, he cannot take the plea of the protection under Section 53A.

The court held that in this case there was a written registered agreement, but there was no evidence to show that A was in possession of the premises in part performance of the contract. Page 113 of 151

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Rather, as he occupied the premises as a tenant he was not entitled to protect his possession under this equitable doctrine. Transferee Willing to Fulfil his Part of the Contract The transferee must be willing to fulfil his part of the contract in order to take the benefit of part performance.82 Such willingness should be unconditional generally,83 and would entitle them to the protection of the possession even if an earlier suit filed by them for specific performance of the contract was dismissed.84 However, failure to prove willingness will disentitle them to such protection.85 Unwillingness to pay regular installments of money previously agreed to,86 or the full consideration87 or the agreed sum of money,88 or failure to demand specific performance,89 will result in dispossession of the vendee. However, where, though payment was conditional on the transferor performing a specific act such as rectification of revenue records90 and the transferor failed to do that but insisted on payment, non-payment of money till the transferor performs the condition did not constitute unwillingness on part of the transferee.91 Similarly, non-payment of registration charges after payment of substantial sale consideration would not be sufficient to dispossess the transferee.92 Where, pursuant to an agreement between the corporation and the allottee for allotment of an industrial plot for setting up an industry, the allottee gives an assurance for construction of the building within two years but assigns the same to another person, the assignee has no locus standi to question the validity of resumption order passed; and neither he nor the allottee will be entitled to the protection of their possession.93 It is, however, not necessary that the willingness to perform the terms must be expressly pleaded in the pleadings.94 In Nathulal v. Phool Chand,95A was the owner of a factory that stood on the land belonging to his brother B. A entered into a contract to sell the land and the factory to C, received part payment, and put C in possession of the property. As per the contract, C was to pay the money when A would get the property in his name and delete the name of B from the revenue records. The terms of the agreement were reduced to writing and were duly signed by the parties. C failed to pay the balance amount and A rescinded the contract. A also filed a suit in a court of law claiming that C was a trespasser and the possession of the property should be handed over back to him. C claimed that he was ready and willing to pay the rest of the consideration, provided in accordance with the terms and agreement, A should delete the name of B from the revenue records and give a clear title to him. The trial court held that payment of consideration was an essential part of fulfilment of the contract and in not doing so, C had committed a breach of contract. The High Court held that A was entitled to not only the balance amount but also the mense profits, and directed C to deposit the required sum in order to retain possession of the property. The matter went to the Supreme Court. The Apex Court held that C could be called upon to pay the balance amount only when A also performs his part of the contract. It was agreed upon by the parties that A would not only get the name of B removed from the revenue records, but as the property was agricultural property, he would also secure the necessary permission of the Collector to sell this land as C was a non-agriculturist and as he had failed to do both, and yet had insisted on payment of the entire money, C was entitled to ask him to perform his part of the obligations under the contract and then only pay the Page 114 of 151

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consideration. C had also shown to the satisfaction of the court, that he had made necessary arrangements and had money at his disposal to pay to A provided A performed his part of the contract. The court therefore, held that C was within his rights to require A to perform his contract, as he was willing to fulfil his part of the contract. Therefore, he was entitled to the benefit of the doctrine of part performance and can retain possession on this ground. In order to protect the possession of the property under the doctrine of part performance, the conduct of the transferee is extremely important. For instance, A obtains possession of the property from B under a partly performed contract of an agreement of sale, but does not take any adequate steps to have the sale deed executed. Rather, he enters into another agreement to sell the same property to C and puts C in possession of the property. In such case, neither A nor C would be entitled to protect the possession of the property and B would have a right to claim possession and mense profits from A.96 Disability Imposed on the Transferor What part performance purports to do is to prevent a plaintiff from recovering the possession of the property already transferred to the transferee where the conditions are satisfied.97 It imposes a disability on the plaintiff to enforce against the defendants any right that they may have with respect to the property.98 A statutory bar is imposed on the transferor1 and it is not necessary that the transferee should have filed a suit for specific performance.2 Equity of Part Performance The only protection accorded to the plaintiff under the doctrine of part performance is that he can protect the possession that has already been delivered to him in furtherance of this partly performed contract, and nothing else. He cannot be called a trespasser, as his occupation would be lawful, yet at the same time, no rights would be created in his favour. He does not get a right to retain possession. Thus, the equity of part performance confers no title on the transferee,3 but confers an interest, which is transferable and attachable.4 Before the amendment5 the equity was applied to case of unregistered agreements of lease,6 mortgage,7 exchange,8 sale,9 and even release.10 But the equity is not available in cases where the suit for specific performance was filed by the transferee but was dismissed,11 became time barred,12 or after the execution of the decree, has become time barred.13 Right Available only as a Defence Right under part performance cannot be used as an independent remedy either as a plaintiff or as a defendant,14 but can be used by a defendant to protect his possession15 against any challenge to it by the transferor contrary to the terms of the contract.16 It confers no title on the transferee17 and therefore, neither a suit on title can be maintained by him,18 nor can a suit against a third party to the contract for enforcement of a bar as against the transferor would be maintainable.19 Part performance doctrine can be used as a shield and not as a sword,20 which Page 115 of 151

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means that a person pleading the protection of it can defend his possession with this doctrine using it as a shield, but cannot invoke it as a matter of right. However, the possessor of the property has a right to resist dispossession21 and can file a suit for specific performance of the contract22 or for protection of possession,23 or for an injunction against the transferor restraining him from interfering with his possession.24 In UN Sharma v. Puttegowda,25 the owners of a land, A and B, agreed to sell the same to C for R s. 21,000, and received Rs. 15,000, as advance pursuant to which they executed an agreement to sell in his favour. The same day the possession of the property was delivered to them. Later, A and B started interfering with his peaceful possession. He therefore filed a suit in the court praying that A and B should be restrained from alienating the property to somebody else, and to issue a permanent injunction restraining them from interfering with their peaceful possession of the property. Denying him the relief asked for the court held, Admittedly in this case, the plaintiff has not yet got the title to the property. He can get the title to the properties if he succeeds in the suit and obtains the sale deed in respect of the properties. It is well established that an agreement of sale does not create an interest in the property, which is the subject matter of agreement. Therefore the plaintiff if at all can claim only an equitable right based on Section 53A of the Transfer of Property Act, Therefore the relief of temporary injunction claimed by the plaintiff pending suit can be taken to have been claimed by the plaintiff only on the basis of Section 53A of the Transfer of Property Act, as mere possession of the plaintiff of the suit properties on the date of the suit cannot be taken to enable him to obtain injunction from the court.It is well established that Section 53A of the Transfer of Property Act, provides for a passive equity and not for an active equity. Therefore the plaintiff cannot seek his relief of injunction in a court of law based on Section 53A of the Transfer of Property Act, though he can use Section 53A to debar the transferor who agreed to sell the property from claiming any right in respect of that property. It is well established that the right conferred by Section 53A is a right available to the defendant only to protect his possession and on the basis of that section the defendant cannot claim any title and it merely operates as a bar to the plaintiff to ascertain his title.

The court accordingly held that C was not entitled to a temporary injunction and dismissed his suit. Transferor or Any One Claiming Under Him A person who acquires a title to the property from the transferor26 subsequent to the act of part performance,27 will also suffer from the same disability as the transferor himself. For instance, A agrees to transfer the property to B through a written and registered document and delivered possession of the property and in furtherance of this contract, delivers possession of the property. He then later changes his mind and sells the property to C. C is a person claiming under the transferor and if he seeks to take back the possession, the same disability would be imposed on him also. Similarly, if instead of A selling the property to C, suppose A dies and his son S inherits the property, S would also be unable to take back the possession of the property as he would be claiming under the transferor. The situation would be identical if instead of inheritance, s. or any other person would have acquired the property under a Will from A. Therefore, a person claiming under the transferor such as a reversioner of an estate where transfer is effected by a Hindu widow28 or a minor29 when the guardian entered into a transaction, or a judgment creditor who has attached the property of a judgment debtor in possession of an intended purchase,30 would be covered under the expression persons Page 116 of 151

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claiming under the transferee; but sons of the karta of joint family when the latter executes a transfer of the joint family property31 or successor of the interest of a lessor,32 or a person holding the property in adverse possession to the transferor33 are not persons claiming under him. Plea of Part Performance A plea of part performance raises a mixed question of law and fact and therefore, cannot be raised for the first time at the stage of second appeal.34 But if all the ingredients of facts required to support the defence of part performance are stated in the written statement, the defendant will be entitled to raise such a defence even though no specific pleadings35 or defence is mentioned in the written statement.36 Rights of Bona Fide Transferee for Value The rights of a transferee for consideration who has no notice of the contract or of part performance thereof are not effected by this doctrine.37 However, a subsequent purchaser would deem to have constructive notice38 of the right of the possessor where he failed to make inquiries from him.39 The onus is on the transferee to prove that he is a bona fide transferee for consideration and without notice.40 In DS Parvathamma v. A Srinivasan,41 a person A, was the owner of the house and inducted B into it as his tenant. Three years later B entered into an agreement with A to purchase the house and therefore his possession altered its character—and from being a tenant in possession, he became a purchaser in possession. However, 13 years later, A sold the same property to C with the help of a written and registered document. C, as a bona fide purchaser for value, filed a suit for claiming possession of the property from B, and B raised the defence of doctrine of part performance to protect and retention of his possession. Meanwhile, B had filed a suit against A and his wife for specific performance of the contract. This suit was not only barred by limitation but also suffered from gross delay and latches. However, the court held that B had not disowned his character as a tenant and there was no finding that he was in possession of the property in part performance of the contract. B had not pursued the matter further. The Apex Court here held that B can not be allowed to take the benefit of the doctrine of part performance for the following reasons: (i) That B’s suit for injunction seeking to protect his possession was rejected by the court. A remedy of specific performance of the contract that was also added to the same suit was also rejected and; (ii) B had failed to prove that he was delivered possession of the property in part performance of the contract. His capacity to continue in possession of the property as a tenant had not changed and he had not shown that he had done anything in furtherance of the contract to show his altered position.

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The court therefore held that B was not entitled to protect his possession under the doctrine of part performance and C’s rights as a bona fide purchaser for value were to be protected. Transactions not Permitted by Law Doctrine of part performance cannot be availed of with respect to transactions which are null and void due to contravention with statutory law.42 Thus it does not apply to a document which though required to be registered has not been registered,43 or a transfer in contravention of a statute,44 or where possession was given to a person before the required permission from the tehsildar45 or from the other statutory authority46 was obtained; or an agreement by a municipality without complying with the requisite formalities prescribed by the statute incorporating it,47 or an agreement regarding sale of the company’s property when it is in liquidation without the sanction of the creditors48 or an agreement to sell the property by a trustee without the co-trustees joining him49 or an agreement to sell the succession rights of a reversioner.50 But where the vendor agrees to sell his share of the land the court will direct him to apply for the permission as it is an implied term that he would be get the permission before such sale51 and the contract would not be void only because the sanction has not been obtained.52 Distinction Between English and Indian Law Relating to Doctrine of Part Performance English law of part performance differs from Indian law in two major aspects: (i) Doctrine of part performance under English law, can be attracted even on the basis of an oral agreement, however under Indian law; the presence of a written deed, with clarity of language is a pre-condition for its application. (ii) Under Indian law, the plea of part performance can be raised only as a defence to protect the possession but cannot be used to enforce a right or claim. It is a passive right. However, under English law, it can be used not only to protect his possession but also to invoke the right to retain possession.

1.

Balwant Singh v. Joti Prasad, (1918) ILR 40 All 692.

2.

See The Transfer of Property Act, 1882, s. 19.

3.

Rewan Persad v. Radha Beeby, (1846) 4 MIA 137.

4.

Chunilal v. Bai Muli, (1900) ILR 24 Bom 420; Lallu v. Jagmohan, (1898) ILR 22 Bom 409.

5.

Bhagabati v. Kali Charan, (1911) ILR 38 Cal 468.

6.

P K Mohan Ram v. B N Ananthachary, AIR 2010 SC 1725 [LNIND 2010 SC 241].

7.

U Zoe v. Ma Mya May, AIR 1930 Rang 184.

8.

Rajesh Kanta Roy v. Shanti Debi, AIR 1957 SC 255 [LNIND 1956 SC 100].

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Sunder Bibi v. Rajendra Narain, AIR 1925 All 389; Raja Lal Bahadur v. Rajendra Narain, AIR 1934 Oudh 454.

10. Rajes Kanta Roy v. Shanti Debi, AIR 1957 SC 255 [LNIND 1956 SC 100]. 11. Ma Yait v. Official Assignee, AIR 1930 PC 17. 12. Pestonjee Bhicajee v. PH Anderson, AIR 1939 PC 6. 13. P.K. Mohan Ram v B.N. Ananthachary, AIR 2010 SC 1725 [LNIND 2010 SC 241]. 14. AIR 1996 SC 2220 [LNIND 1996 SC 709]: (1996) 9 SCC 388 [LNIND 1996 SC 709]. 15. AIR 1957 SC 255 [LNIND 1956 SC 100]. 16. AIR 2005 SC 2468 [LNIND 2005 SC 412]: (2005) 11 SCC 234 [LNIND 2005 SC 412]. 17. Glanville v. Glanville, (1816) 2 Mer 38. 18. Samsuddin v. Abdul Hussein, (1906) 31 Bom 165. 19. Rukhamanbai v. Shivram, AIR 1981 SC 1881 [LNIND 1981 SC 371]. 20. Official Assignee v. Vedavalli, AIR 1926 Mad 936 [LNIND 1925 MAD 254]. 21. Chuni Lal v. Bai Samarath, AIR 1930 PC 270 [LNIND 1930 PC 62]. 22. Rajendra Lal v. Mrinalini Dassi, AIR 1922 Cal 116. 23. Ram Sarup v. Bela, (1884) ILR 6 All 313. 24. Thais Muthukannu v. Shanmugavela, (1905) ILR 28 Mad 413; Ghumna v. Ramchandra, AIR 1925 All 437. 25. Wilkinson v. Wilkinson, (1871) 12 Eq 604. 26. Bai Vijli v. Nansa Nagar, (1886) ILR 10 Bom 152. 27. Ganendra Mohan Tagore v. Rajah Juttendro Mohun Tagore, (1874) 1 IA 387. 28. Veerbhadra v. Chiranjeevi, (1905) ILR 28 Mad 173. 29. Ismail Haji v. Umar Abdulla, AIR 1942 Bom 155; Debi Shanker v. Nand Kishore, AIR 1932 Oudh 161. 30. Gopaldas v. Hemandas, AIR 1942 Sindh 145. 31. Debi Shanker v. Nand Kishore, AIR 1932 Oudh 161. 32. (1906) 33 Cal 947. 33. (1914) 38 Bom 697. 34. AIR 1926 Mad 936 [LNIND 1925 MAD 254]. 35. (1888) ILR 15 Cal 282. 36. AIR 1933 Mad 80 [LNIND 1932 MAD 143]. 37. Anand Rao Vinayak v. Administrator General of Bombay, (1896) ILR 20 Bom 450. 38. (1916) 20 Cal WN 463 ; see also Karan Singh v. Rupawanti, AIR 1925 Lah 122. 39. Chunilal v. Bai Samarath, AIR 1914 PC 60; Ram Lal Mukerjee v. Secretary of State, (1881) ILR 7 Cal 304; Kumar Tarakeshwar Roy v. Kumar Shoshi Shikhareswar, (1883) ILR 9 Cal 952; Soorjemoney Dossey v. Denobundoo Mullick, (1862) 9 Moo Ind App 123. 40. Bachman v. Bachman, (1884) ILR 6 All 583. 41. Ganendro Mohun Tagore v. Rajah Juttendro Mohun Tagore, (1874) 1 IA 387; Shyama Charan v. Naba Charan, (1912) 17 Cal WN 39. 42. Gooroo Das v. Sarat Chunder, (1902) ILR 29 Cal 699. 43. Umes Chunder v. Zahoor Fatin, (1891) ILR 18 Cal 164. 44. Sundar Bibi v. Lal Rajendra, AIR 1925 All 389; see also Jitendra Nath v. Banku, AIR 1926 Cal 496. 45. Adams v. Gray, AIR 1925 Mad 599 [LNIND 1924 MAD 425]. 46. Govindraju v. Mangalam Pillai, AIR 1933 Mad 80 [LNIND 1932 MAD 143]. 47. Maitland v. Chalie, (1882) Mad & G 243. 48. Amulya v. Kalidas, (1905) ILR 32 Cal 861.

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(IN) Poonam Pradhan Saxena : Property Law 49. Saraju Bala v. Jyotirmoyee, AIR 1931 PC 179. 50. Bai Dhanlaxmi v. Hari Prasad, AIR 1921 Bom 262. 51. Sures Chandra v. Lalit Mohun, (1916) 20 Cal WN 463 ; see also Karan Singh v. Mussammat Rupwanti, AIR 1925 Lah 122; Jagmohan v. Sheoraj, AIR 1928 Oudh 49. 52. Anand Rao Vinayak v. Administrator General of Bombay, (1896) ILR 20 Bom 450. 53. Narasingh Rao v. Mahalakshmi, AIR 1928 PC 156. 54. Indu Kakkar v. Haryana State Industrial Development Corpn Ltd., AIR 1999 SC 296 [LNIND 1998 SC 1066]; see The Transfer of Property Act, 1882, s. 32. 55. Indu Kakkar v. Haryana State Industrial Development Corpn Ltd., AIR 1999 SC 296 [LNIND 1998 SC 1066]. 56. Venkatarama v. Aiyasami Aiyar, AIR 1923 Mad 67. 57. Ambika Charan v. Sasitara, (1915) 22 Cal LJ 61. 58. Tin Cowri Dassi v. Krishna, (1893) ILR 20 Cal 15. 59. Krishna Chandra v. National Chemical and Salt Works, AIR 1957 Ori 35 [LNIND 1956 ORI 19]. 60. Devendra Prasad Sukul v. Surendra Prasad Sukul, AIR 1936 PC 24. 61. 38 IC 103. 62. Shyama Charan v. Naba Chandra, (1912) 17 Cal WN 39. 63. Tin Cowri Dassi v. Krishna, (1893) ILR 20 Cal 15. 64. Beepathuma v. V.S. Kadambolithaya, AIR 1965 SC 241 65. Ammalu Achi v. Ponammal, (1919) Mad WN 144. 66. Dahnpatti v. Devi Prasad, (1970) 3 SCC 779; Mohammad Ali v. Nisar Ali, AIR 1928 Oudh 67; see also Kamal Kumari v. Narendra Nath, (1909) 9 Cal LJ 19, wherein it was held that if the property did not belong to the other legatee no question of election would arise. 67. Muhammad Afzal v. Ghulam Kasim, (1903) ILR 30 Cal 843. 68. Ramayyar v. Mahalakshmi, AIR 1922 Mad 357. 69. See also the illustration to s. Sections 171 of the Indian Succession Act, 1925. 70. See the s. 34. 71. Beepathuma v. VS Kadambolithaya, AIR 1965 SC 241. 72. Rungam v. Atchama, (1858) 4 Mad IA 1; Shah Mukhun Lal v. Kishen Singh, (1869) 12 Mad IA 157. 73. Sadik Husain v. Hashim Ali, (1916) 43 IA 212; Triguna Sundari v. Radharani, (1923) 37 Cal LJ 20; Indu Bala v. Manmatha, AIR 1925 Cal 724. 74. See the s. 189. 75. Mangal Das v. Runchhoddas, (1890) ILR 14 Bom 438. 76. Gopi Koeri v. Raj Roop, AIR 1925 All 190. 77. Satyabhamadevi v. Ram, Kishore AIR 1975 MP 115 [LNIND 1974 MP 59]; see also Lakshminarappa v. Melothraman, (1903) ILR 26 Mad 540, where on the death of a life interest holder a month before the rent for half an year was due his assignee was held entitled to apportionment of rent up to the date of the death of the lessor. See also Kunhi Sou v. Mulloli Chathu, (1915) ILR 38 Mad 86, where liability to pay rent was apportioned between the lessee and his assignee. 78. Satyendra Nath v. Nilkantha, (1894) ILR 21 Cal 383. 79. Mikram Mumar v. Mohit Krishna, (1921) 64 IC 178. 80. Lala Ganga Ram v. Mewa Ram, AIR 1922 All 275. 81. Rangappaya v. Shiva Aithala, AIR 1933 Mad 699 [LNIND 1933 MAD 134]. 82. Subbaraju v. Seetharamaraju, (1916) ILR 39 Mad 283. However, see Rangiah Chetty v. Vajravelu, (1918) ILR 41 Mad 370, where the rule of apportionment was applied between a lessor and the purchaser of his interest at an execution sale. See also Poongavanam v. Subramanya, AIR 1951 Mad 601 [LNIND 1950 MAD 141]; YS David v. Bangarth Rangaraju, AIR 1944 Mad 568 [LNIND 1944 MAD 119]. 83. Manmad Kunhi v. Ibrayami Hazi, AIR 1959 Ker 208 [LNIND 1958 KER 48].

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(IN) Poonam Pradhan Saxena : Property Law 84. See The Transfer of Property Act, 1882, s. 36. 85. ED Sassoon v. Income Tax Commr, AIR 1954 SC 470 [LNIND 1954 SC 94]. 86. See The Transfer of Property Act, 1882, s. 36. 87. Ma Hawa Bi v. Sein Kho., AIR 1928 Rang 67. See also Satya Bhupal v. Rajnandini, AIR 1924 Cal 1069. 88. Mahommad Abdul Jalil Khan v. Mahommad Abdul Salam Khan, AIR 1932 All 178. 89. Raja Simhadri v. Prattipati Ramayya, (1908) 29 Mad 29. 90. Hari Chand v. Tuluk Dhari, (1903) 7 Cal WN 453. 91. Gour Gopal v. Gosta Behari, (1917) 21 Cal WN 214. 92. Satyesh v. Jillar Rahman, (1918) 27 Cal LJ 438. 93. Maharaja Keshava Prasad v. Mathura Kuar, AIR 1922 Pat 608. 94. See The Transfer of Property Act, 1882, s. 37. 95. Sadhu v. Bihari, (1908) 30 All 282. 96. See The Transfer of Property Act, 1882, s. 36. 97. Peary Lal v. Madhoji, (1913) 17 Cal LJ 372. 98. Kanhaiya Lal v. Chandar, (1885) ILR 7 All 313; Godai Mahto v. Debu, AIR 1933 Pat 248. 99. Alimuddin v. Hira Lal, (1896) ILR 23 Cal 87. 1.

Hanooman Persad v. Babooe, (1856) 6 Mad IA 393, 423.

2.

Prior to the passing of the Hindu Succession Act, 1956. The act has granted absolute powers of alienation to a Hindu woman. See Hindu Succession Act, 1956, s. 14. The statutory in competency to hold an absolute estate was removed by this enactment.

3.

Debi Pershad v. Gopal Bhagat, (1913) ILR 40 Cal 721; Rangaswami v. Nachiappa, (1919) ILR 42 Mad 523.

4.

Niladri Sahu v. Mahant Chaturbhuj Das, AIR 1926 PC 112; Prasunno Kumari v. Golab Chand, (1875) 14 BLR 450; Doorganath v. Ram Chunder Sen, (1876) ILR 2 Cal 341.

5.

Kameshwar Prasad v. Run Bahadur, (1881) ILR 6 Cal 843; Sahu Ram v. Bhup Singh, (1917) ILR 39 All 437.

6.

Jugmohundas v. Pallonjee, (1898) ILR 22 Bom 1; Kherodemoney v. Doorgamoney, (1879) ILR 4 Cal 455; Sarat Chandra v. Bhupendra Nath, (1898) ILR 25 Cal 103; Amulya v. Kalidas, (1905) ILR 32 Cal 861.

7.

Rani v. Santa Bala Debnath, AIR 1971 SC 1028 [LNIND 1970 SC 419]; Nagammal v. Varada Kandar, (1950) 1 Mad LJ 505; Lakhmi Singh v. Mahendra, AIR 1949 All 501; Vembu Iyer v. Srinivasa Iyengar, (1912) 23 Mad LJ 638; Vijay Ramraj v. Vijay Ananda, AIR 1952 All 568; Makundi v. Sarabsukh, (1884) ILR 6 All 417; Onkar v. Babu Ram, AIR 1981 All 128; Janardhan v. Gangadharan, AIR 1983 Ker 178 [LNIND 1982 KER 268].

8.

Pious obligations of the son to pay fathers debts have recently been abolished via the Hindu Succession (Amendment) Act, 2005.

9.

See Balappa v. Chenvasappa, (1915) 17 Bom LR 1134 [LNIND 1915 BOM 131].

10. See The Transfer of Property Act, 1882, s. 38;Hanooman Persad v. Babooe, (1856) 6 Mad IA 393, 423. 11. Karunakar v. Durgabati, AIR 1981 Ori 223; Dhana v. Pandav, AIR 1974 Ori 218 [LNIND 1974 ORI 18]; Ralia v. Jagdish, AIR 1973 P&H 335; Ramdayal v. Bhanwarlal, AIR 1973 Raj 173 [LNIND 1971 RAJ 24]; Kirtan v. Madan, (1962) 2 CWR 1298; Meenakshi Achi v. Manikkam Chettiar, AIR 1960 Mad 99 [LNIND 1959 MAD 77]. 12. Junhabi v. Balbhadra, (1910) 15 Cal WN 793. 13. Maharaja of Bobbili v. Zamindar of Chundi, (1912) ILR 35 Mad 108. 14. Brij Lal v. Inda Kunwar, (1914) 36 ILR All 187. See also Muhamad v. Brij Bihari, AIR 1924 All 939, wherein it was held that recitals can be inserted in the deed at the instance of the transferee also and therefore it would not be appropriate to rely on them. 15. Banga Chandra v. Jagat Kishore, (1916) 44 Cal 186. 16. Chintamani Bhatala v. Rani of Wadhwan, (1920) ILR 43 Mad 541; Ravaneshwar v. Chandi Prasad, AIR 1915 PC 57. 17. Krishna Das v. Nathu Ram, AIR 1927 PC 37. 18. Radhakrishnadas v. Kaluram, AIR 1967 SC 574 [LNIND 1962 SC 156]; Niamat Rai v. Din Dayal, AIR 1927 PC 121, wherein the Privy Council said that if the purchaser makes due inquiries and acts in good faith as to the necessity of the sale, the mere fact that part of the sale money has not been utilised for the necessity would not invalidate the sale. The Privy Council overruled the earlier decisions of (Lal) Bahadur Lal v. Kamleshar, AIR 1925 All 624 (FB); Daulat v. Sankhata, AIR 1925 All 324; Ghansham v.Badiya,

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(IN) Poonam Pradhan Saxena : Property Law (1902) ILR 24 All 547, wherein it was held that when the unaccounted part was considerable and the amount utilised is very small the alienation would be invalid. 19. Benaras Bank v. Hariram, 59 IA 300. 20. See the Hindu Minority and Guardianship Act, 1856, s. 8(1); the Guardians and Wards Act, 1890, s. 17. 21. For testamentary guardians see the Guardians and Wards Act, 1890, s. 28. 22. Pavitar Singh v. Bachittar Singh, 69 PLR 293, where the sale of minors property was for his benefit. See also Manik Chand v. Ram Chandra, AIR 1981 SC 519 [LNIND 1980 SC 241]. 23. A testamentary guardian has no power to alienate minors property by way of sale. See Duraiswamy v. Balasubramaniam, AIR 1977 Mad 304 [LNIND 1976 MAD 254]. 24. Shivamurthi v. Vijaysingh Vinayakrao, AIR 1972 Bom 152 [LNIND 1971 BOM 5]. 25. G Annumalai v. Revenue Officer, AIR 1985 Mad 35. 26. Sriramulu v. Pundarikakshalayya, AIR 1949 PC 218. 27. Waghala v. Masludin, (1877) 11 Bom 551; Sarwarjan v. Fakruddin, (1912) 39 IA 1; Darbara v. Karmindar, AIR 1979 P&H 215. 28. Chater Bhuj v. Gurpreet Singh, AIR 1983 P&H 406; Surya Prakashan v. Gangaraju, AIR 1956 AP 33; Amir Ahmed v. Mir Nizam, AIR 1952 Hyd 120 (FB); Than Singh v. Barela, AIR 1974 MP 24 [LNIND 1973 MP 56]. 29. Hanooman Prasad v. Babooe, (1856) 6 MIA 393 ; the case related to the guardians power to alienate but since then has been applied to the kartas (of joint family) power of alienation. See also Radhakrishan Das v. Kaluram, AIR 1967 SC 574 [LNIND 1962 SC 156]. But see A Subramaniam v. Jayadevan, AIR 1985 Mad 372 [LNIND 1984 MAD 76], wherein it was held that in exceptional cases, he may be required to see actual application of money. 30. Bansilal v. Kuldeep, AIR 1981 J&K 35; Banga Chandra v. Jagat Kishore, (1916) 44 Cal 186; Maharaj Singh v. Balwant Singh, (1906) ILR 28 All 508. 31. Faqir chand v. Sardarni Harnam Kaur, AIR 1967 SC 727 [LNIND 1966 SC 147]; Bhagwan v. Bhishan Chand, AIR 1974 P&H 7; Rani v. Santa, AIR 1971 SC 1028 [LNIND 1970 SC 419]; Jwala v. Lachman, AIR 1974 P&H 188; Ram v. Bhalla, AIR 1986 SC 193; Nisamani v. Laxman, AIR 1980 Ori 181 [LNIND 1980 ORI 7]. 32. Chandra Deo v. Mata Prasad, (1909) ILR 31 All 176; Sahib Singh v. Girdhari Lal, AIR 1924 All 24; Jamna v. Nain Sukh, (1887) ILR 9 All 493; Subramanya v. Sadusiva, (1884) 8 Mad 75. 33. Girdhari Lal v. Kantoo Lal, (1874) 14 Rang LR 187; Johar Mal v. Eknath, (1899) 24 Bom 343; Suraj Bunsi Koer v. Sheo Prasad, (1878) 5 Cal 148. 34. Maheshwar v. Ratan Singh, (1896) ILR 23 Cal 766. 35. Bhagwat Dayal v. Debi Dayal Sahu, (1908) ILR 35 Cal 420. 36. Raghubanchmani v. Ambika Prasad, AIR 1971 SC 776. 37. Chaniram v. Samaru, AIR 1988 Ori 136 [LNIND 1987 ORI 37]. 38. Morappa v. Rangaswami, (1900) ILR 23 Mad 89. 39. Amritha v. Sornam, AIR 1977 Mad 427 (FB). 40. Gain Chand v. Kishen Singh, AIR 1978 J&K 16. 41. Than Singh v. Barelal, AIR 1974 MP 24 [LNIND 1973 MP 56]. 42. Provisions for advancement are unknown to Indians. See Kerwick v. Kerwick, AIR 1921 PC 56; Guran Ditto v. Ram Ditto, AIR 1928 PC 172; Dharwar Bank v. Mahomed Hayat, AIR 1931 Bom 269; Paul v. Nathaniel, AIR 1931 All 596; Sura Lakshmiah v. Kothandarana, AIR 1925 PC 181; see also Dhanjibhai v. Navajbai, (1878) ILR 2 Bom 75, wherein it was held that the English rule by which a child who has received an advancement must bring it to the hotchpot in case of fathers intestacy, is not applicable to Indian Parsis. 43. Vijayan v. Sobhana, AIR 2007 Ker 177 [LNIND 2007 KER 119]; Sarwan Singh v. Jagir Kaur, AIR 2006 P&H 171. 44. V Tulasamma v. V Sesha Reddy, AIR 1977 SC 1944 [LNIND 1977 SC 136]; B Manikayam v. B Venkatayamma, AIR 1957 AP 710 [LNIND 1956 AP 138]; Basudev Dey Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399 [LNIND 1991 CAL 25]; Chandramma v. Maniam Venkatreddi, AIR 1958 AP 396 [LNIND 1957 AP 60]. 45. Ramamurthy v. Kanakaratnam, AIR 1948 Mad 205 [LNIND 1947 MAD 163]; B Manikayam v. B Venkatayamma, AIR 1957 AP 710 [LNIND 1956 AP 138]; Vellayammal v. Srikumara Pillai, AIR 1960 Mad 42 [LNIND 1959 MAD 38]; Kare Mors Sharabanna v. Basamma, AIR 1962 Mys 207; Mahesh Prasad v. Nunder, AIR 1951 All 141 [LNIND 1950 ALL 153]. 46. Ramankutty Purushothaman v. Amminikutty, AIR 1997 Ker 306 [LNIND 1997 KER 49].

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(IN) Poonam Pradhan Saxena : Property Law 47. S Periasami v. Chellamal, (1980) 1 Mad LJ 46. 48. Gopee Krit Gosain v. Gunga Prasad, (1854–57) 6 MIA 53; Kerwick v. Kerwick, AIR 1921 PC 56; Paschaud v. Paschoud Nixon, AIR 1930 Oudh 441; Johnstone v. Gopal Singh, AIR 1931 Lah 419. 49. Debi Lal v. Nand Kishore, AIR 1922 Pat 22; Gopal Krishna v. Venkatarasa, (1914) ILR 37 Mad 273; Sundarabai v. Shivnarayana, (1907) 32 Bom 81; Bhagirathi v. Jokhu Ram, (1910) ILR 32 All 575. 50. Kaveri v. Parmeshwari, AIR 1971 Ker 216 [LNIND 1970 KER 103]; see also Vedavathi Williams v. Ramabai, AIR 1964 Mys 265. 51. See Hindu Adoptions and Maintenance Act, 1956, s. 18.Basudev Dey Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399 [LNIND 1991 CAL 25]; V Tulasamma v. V Sesha Reddy, AIR 1977 SC 1944 [LNIND 1977 SC 136]. 52. B Manikayam v. B Venkatayamma, AIR 1957 AP 710 [LNIND 1956 AP 138]; Basudev Dey Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399 [LNIND 1991 CAL 25]; Chandramma v. Maniam Venkatareddi, AIR 1958 AP 396 [LNIND 1957 AP 60]. 53. (1974) 2 Kant LJ 45 [LNIND 1974 KANT 38]. 54. Jamnabai v. Balakrishna, AIR 1927 Mad 1092 [LNIND 1927 MAD 93]; Jogi v. Rajkumar Saheba, AIR 1956 Nag 138; Prasanno v. Barbosa, (1866) 6 WR 253; Sowbhagia v. Manicka, (1918) 33 Mad LJ 601. 55. Ram Kanwar v. Amarnath, AIR 1932 All 361; Rachwa v. Shivayagapa, (1893) 18 Bom 679; Inam v. Balamma, (1889) 12 Mad LJ 334. 56. Ghasiram v. Kundan Bai, AIR 1940 Nag 163; Lakshman v. Satyabhambai, (1877) 2 Bom 494; Bhatpur State v. Gopal, (1901) 24 All 160; Ram Kunwar v. Ram Dai, (1900) 22 All 326; Somasundaram v. Unnamalai, (1920) ILR 43 Mad 800; Ramanandan v. Rangamal, (1889) ILR 12 Mad 260. 57. Ramankutty Purusothaman v. Amminikutty, AIR 1997 Ker 306 [LNIND 1997 KER 49]. 58. Raghavan v. Nagammal, (1979) 1 Mad LJ 172. 59. Kallappa v. Balwant, AIR 1925 Bom 343; Maina v. Bachchi, (1906) ILR 28 All 655; Mahadev Prasad v. Anandi Lal, AIR 1925 All 60; Chaudhari v. Gobardhan, AIR 1929 Oudh 316; Hunter Liquidator of Bank of Upper India v. Nisar Ahmed Chaudhary, AIR 1932 Oudh 336. 60. Johurra v. Srigopal, (1876) ILR 1 Cal 470; Gur Dayal v. Kaunsilla, (1882) 5 All 367; Lakshman v. Satyabhambai, (1877) 2 Bom 494; Ramanandan v. Rangamal, (1889) ILR 12 Mad 260; Jamnabhai v. Balakrishna, AIR 1927 Mad 1092 [LNIND 1927 MAD 93]; Soorja Kaur v. Nath Baksh, (1884) 11 Cal 102; Jayanti v. Alamelu, (1904) ILR 27 Mad 45; Brij Raj Kier v. Ram Dayal, AIR 1932 Oudh 40. 61. Lakshman v. Satyabhambai, (1877) ILR 2 Bom 494; Ramanandan v. Rangamal, (1889) ILR 12 Mad 260; Jamnabai v. Balkrishna, AIR 1927 Mad 1092 [LNIND 1927 MAD 93]. 62. Somasundaram v. Unnamalai, (1920) ILR 43 Mad 800. 63. Malkarjun v. Sarubai, AIR 1943 Bom 187. 64. Prabhu Dayal v. Ralla Ram, AIR 1930 Lah 672; Sellappa v. Suppan, AIR 1937 Mad 496 [LNIND 1936 MAD 341]; Vaikuntam v. Kallapiram, (1900) ILR 23 Mad 512; Runganaiki v. Ramanuja, (1912) ILR 35 Mad 728; Srinivasa v. Thiruvengadathaiyangar, (1915) ILR 38 Mad 556. 65. Patel v. Lakkireddigari, AIR 1947 Mad 379. 66. Sundrabai v. Shivnarayana, (1907) 32 Bom 81; Debi Lal v. Nand Kishore, AIR 1922 Pat 22; Gopalkrishna v. Venkatarasa, (1914) ILR 37 Mad 273. Debts reasonably incurred for the marriage of a Hindu male are binding on the joint family property; see Bhagirathi v. Jokhu Ram Upadhia, (1910) ILR 32 All 575. 67. Dev Kishan v. Ram Kishan, AIR 2002 Raj 370; Ramjas Aggarwal v. Chand Mandal, (1937) ILR 2 Cal 764. 68. Venkatasubba v. Anand Rao, (1933) 57 Mad 722. 69. Radhabai v. Gopal, AIR 1944 Bom 50; Vedavathi Williams v. Ramabai, AIR 1964 Mys 265. 70. Ramamurthy v. Kanakartanam, (1948) ILR Mad 335; Mahesh v. Munder, AIR 1951 All 141 [LNIND 1950 ALL 153]; Chandramma v. Venketareddi, AIR 1958 AP 396 [LNIND 1957 AP 60]; Kesho Prasad v. Upper India Bank Ltd., AIR 1933 Oudh 76; Sheodeni Kuero v. Umashanker, AIR 1963 AP 74. 71. Kare More Sharabanna v. Basamma, AIR 1962 Mys 207; Mahesh Prasad v. Nunder, AIR 1951 All 141 [LNIND 1950 ALL 153]; Vellayammal v. Srikumara Pillai, AIR 1960 Mad 42 [LNIND 1959 MAD 38]; Ramamurthy v. Kanakaratnam, AIR 1948 Mad 205 [LNIND 1947 MAD 163]; B Manikayam v. B Venkatreddi, AIR 1957 AP 710 [LNIND 1956 AP 138]. 72. Pranlal v. Chapsey Ghella, AIR 1945 Bom 34; Radhabai v. Gopal, AIR 1944 Bom 50; Dattatreya v. Tulsabai, AIR 1943 Bom 412. 73. Third person therefore refers to a covenantee or person to whom the benefit of the covenant has been assigned. See Union of London and Smith Bank Miles v. Easter, (1933) AER 355, 365–366, (1933) Ch 611.

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(IN) Poonam Pradhan Saxena : Property Law 74. See The Transfer of Property Act, 1882, s. 40. See also the Indian Contract Act, s. 108 expl2; the Specific Relief Act, 1877, s s. 27(b), 24(d) and 25(c). The Indian Trusts Act, 1882, ss. 91, 98. See also Durga Prasad v. Deepchand, (1954) SCR 367, 368. The principle adopted here is the English doctrine of the restrictive covenants illustrated in Tulk v. Moxhay, (1848) 2 Ph 774, with the modification introduced by later English decisions of Haywood v. Brunswick Building Society, (1881) 8 QBD 403; Austerberry v. Corporation of Oldham, (1885) 29 Chd 750. 75. D Mattos v. Gibson, (1859) 4 De G & J 276. 76. Prabhu v. Ramzan, 17 ALJ 469. The decision was disapproved on facts in Abdul Shakur v. Nandalal, AIR 1931 All 552. 77. Tulk v. Moxhay, (1848) 2 Ph 774; Princy v. Jose, AIR 2010 Ker 1 [LNIND 2009 KER 225]. 78. Rajpur Colliery v. Purshottam, AIR 1959 Punj 463. 79. Chaturbhuj v. Mansukhram, AIR 1925 Bom 183. 80. Porter v. Fletcher, (1973) 1 All ER Rep 298. 81. Chambers v. Randall, (1923) 1 Ch 149. 82. Ramachandra v. Laxmana Rao, AIR 2000 Kant 298 [LNIND 2000 KANT 284]. 83. Formby v. Barker, (1903) 2 Ch 539; LCC v. Allen, (1914) 3 KB 642; Renal v. Cowlishaw, (1878) 9 Chd 125. 84. Millbourne v. Lyons, (1914) 1 Ch 34. 85. Motilal v. Radha, AIR 1936 Cal 727. 86. Torbay Hotels v. Jenkins, (1927) 2 Ch 225. 87. Chaturbhuj v. Mansukhram, AIR 1925 Bom 183. 88. Jogesh Chandra v. Asaha Khatun, AIR 1927 Cal 41; Rajpur Colliery v. Purshottam, AIR 1959 Punj 463. 89. Chaturbhuj v. Mansukhram, AIR 1925 Bom 183; Jones v. Price, (1965) 2 QB 618; Haywood v. Brunswick Permanent Building Society, (1881) 8 QBD 403; Austerberry v. Corporation of Oldham, (1885) 29 Chd 750. 90. Mohini Mohua v. Ramadas, AIR 1924 Cal 487. 91. Jogesh Chandra v. Asaha Khatun, AIR 1927 Cal 41; Chaturbhuj v. Mansukhram, AIR 1925 Bom 183; Jones v. Price, (1965) 2 QB 618; Haywood v. Brunswick Permanent Building Society, (1881) 8 QBD 403; Austerberry v. Corpn of Oldham, (1885) 29 Chd 750. 92. Halsall v. Brizell, (1957) 1 All ER 371. 1.

Nand Gopal v. Batuk Prashad, AIR 1932 All 78. However, this affirmative covenant was enforced against the transferee from the vendee as it was a case before the section was amended in 1929.

2.

Ganges Manufactirng Co. v. Radharani, AIR 1945 Cal 89; Rambirksh v. Shyam Sunder, AIR 1962 Pat 193; Madho Prasad v. Jwalaeshwari, AIR 1960 All 513 [LNIND 1960 ALL 55].

3.

Banti v. Mandu, AIR 1928 Lah 357; Natesa Vanniyan v. Gopalaswami, AIR 1928 Mad 894 [LNIND 1927 MAD 472]; Hanwant Rao v. Chandi Prasad, AIR 1929 All 293.

4.

Zal Rustamjee v. Anjuman, AIR 1943 Nag 4.

5.

Manubhai v. Cambatta, AIR 1948 Nag 286.

6.

Harihar Singh v. Kamla Prasad, AIR 1944 Oudh 35.

7.

Mohini Mohan Ray v. Ramadas Paramhansa, AIR 1924 Cal 487; Ramadin v. Sheoratan, 6 OC 184.

8.

Abdus Shakur v. Nandlal, AIR 1931 All 552; see also Prabhu Narain Singh v. Ramzan, AIR 1919 All 235.

9.

South of England Dairies Ltd. v. Baker, (1906) 2 Ch 631; Ardeshwar v. KD Brothers, AIR 1925 Bom 330.

10. Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173]; Karan Baksh v. Phula Bai, (1896) 8 All 102; Bahadur Singh v. Ram Singh, (1904) 27 All 12; Ram Jiwan v. Raturaj Singh, (1889) All WN 81; Kaur Datt Prasad v. Nahar Singh, (1888) 11 All 257. 11. Kumarachandra v. Narendra Nath, AIR 1930 Cal 357; Madho Pershad v. Jwalaeshwari, AIR 1960 All 513 [LNIND 1960 ALL 55]; Rambirksh v. Shyam Sunder, AIR 1962 Pat 193. 12. Rajpur Colliery v. Purshottam, AIR 1959 Pat 463; (1959) 38 Pat 443 ; see also Hoogly Bank v. Mahendranath, AIR 1950 Cal 195; (1950) 54 Cal WN 327. 13. The expression does not mean creating a charge in the property but simple ‘relating to the ownership. See Basdeo v. Jhagru, AIR 1924 All 400; Ali Hossein v. Rajkumar, AIR 1943 Cal 417; Abulshakur v. Nandlal, AIR 1931 All 552; Chand Mohammad v. Murtuzokhan, AIR 1958 Bom 194 [LNIND 1957 BOM 99]; Muhammad Ali v. Brikodar, AIR 1960 Assam 178; Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173].

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(IN) Poonam Pradhan Saxena : Property Law 14. Leela v. Ambujakshy, AIR 1989 Ker 308 [LNIND 1989 KER 169]. See The Transfer of Property Act, 1882, s. 40. 15. But see Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173], wherein it was held by the Supreme Court that a right of pre-emption is a covenant that runs with the land. 16. Mohini Devi v. Purna Sashi, AIR 1932 Cal 451, wherein it was held that it would be a contractual agreement and cannot be enforced against a purchaser without notice. 17. Bhupati Bhushan v. Birendra Mohun, (1948) 1 Cal 492, wherein it was held that it creates a perpetual charge and is binding on the subsequent transferee for value with notice or a volunteer with or without notice. 18. KR Varadarajaiyengar v. T Lakshminarayana Setty, AIR 1985 Kant 245 [LNIND 1985 KANT 36]. Here the mortgage deed was registered subsequent to the registration of the sale of the property by the mortgagor to a third party, who took the property without notice of the mortgage. 19. Bai Dasabi v. Mathurdas, AIR 1980 SC 1334 [LNIND 1980 SC 201]; Narayana Pillai Chandrasekharan Niar v. Kunju Amma Thankamma, AIR 1990 Ker 177 [LNIND 1989 KER 273]; Hajee Abdul Shakur v. Nandlal, AIR 1931 All 552; Basdeo v. Jhagru, AIR 1942 All 400; Ali Hossein v. Rajkumar, AIR 1943 Cal 417; Chand Mohamad v. Murtaza, AIR 1958 Bom 194 [LNIND 1957 BOM 99]; Mohammad Ali v. Brikodar, AIR 1960 Assam 178; Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173]. 20. Lalji Jetha v. Kalidas Devchand, AIR 1967 SC 978 [LNIND 1966 SC 262]; Chand Mohamad v. Murtaza Khan, AIR 1958 Bom 194 [LNIND 1957 BOM 99]. 21. Vennarkkal K Sreedharan v. Chandramaath Balkrishnan, (1990) 3 SCC 291 [LNIND 1990 SC 137]; Venkata Reddi v. Yellappa Chetty, (1917) 38 IC 107; Paparaju Veeraraghavayya v. Killaru Kamladevi, AIR 1935 Mad 193 [LNIND 1934 MAD 387]; Athinarayana v. Subramaniya, AIR 1942 Mad 67 [LNIND 1941 MAD 85]; Veerappa Thewar v. CS Venkatarama Aiyar, AIR 1935 Mad 872 [LNIND 1935 MAD 222]; Ranga Ramchandra Kulkarni v. Gurlingappa Chinnappa Muthal, AIR 1941 Bom 145; Kochuponchi Varughese v. Ouseph Lopan, AIR 1952 TC 467; Angu Pillai v. MSM Kasiviswanathan Chettiar, AIR 1974 Mad 16 [LNIND 1972 MAD 198]. See also for a contrary opinion Madan Mohun v. Rebait Mohun, (1916) 21 Cal WN 158. 22. Purna Chandra Basak v. Daulat Ali Mollah, AIR 1973 Cal 432 [LNIND 1973 CAL 168]; Tarak Nath v. Sanatkumar, AIR 1929 Cal 494. 23. (1991) 1 SCC 715. 24. Venkatta Reddi v. Yellappa Chetty, (1917) 38 IC 107; Nur Mohamad v. Dinshaw, AIR 1924 PC 393, wherein Lord Dunedin observed that judicial sales would be robbed of all their sanctity if vague references to antecedent contracts could be held to invalidate the buyers title. But see also Nand Gopal v. Batuk Prasad, AIR 1932 All 78, wherein it was held that the official receiver in whom the property vested by operation of law is a transferee and subject to the principle contained in The Transfer of Property Act, 1882, s. 40. 25. Jogmaya v. Tulsa, AIR 1926 All 70; Kameswaramma v. Sitaramanuja, (1906) ILR 29 Mad 177. 26. Puthenpurayil v. Kodiyal, (1916) Mad WN 31. 27. Basdeo v. Jhagru Rai, AIR 1924 All 400. 28. Valiya v. Krishna, AIR 1927 Mad 699. 29. Sonal Singh v. Hukum Singh Chauhan, AIR 2007 (NOC) 2054 (Utr); Kashmir Singh v. Panchayat Samiti, (2004) 6 SCC 207 [LNIND 2004 SC 487]; see also the Indian Evidence Act, s. 115; Sale of Goods Act, 1930, s s. 27–29; The Indian Contract Act, 1872, s s. 178, 178A, where it is applicable to movable property as well. 30. Layak Ram v. Daramvati, AIR 2010 P&H 95; SM Shah v. Sayed Abdul Rashid, AIR 1991 Kant 273 [LNIND 1990 KANT 366]; Ramcoomar v. Macqueen, (1872) 11 Beng LR 46, wherein the judicial committee held 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 to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow 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 enquiry that if persecuted would have led to the discovery of it. This section also makes an exception to the rule that ‘no person can pass a better title than what he has. See also Controller of Estate Duty, Lucknow v. Aloke Mitra, (1981) 2 SCC 121 [LNIND 1980 SC 424]; Drigpal Singh v. Laldhari Ojha, AIR 1985 Pat 110; Nainsukhdas v. Gowardhandas, AIR 1948 Nag 110; Maung Sin Ba v. Mating Kyne, AIR 1934 Rang 90. The question whether the principle applies to the given set of facts is a question of law—see Mul Raj v. Fazal Iman, AIR 1923 All 583; but see Jamna Das v. Uma Shanker, (1914) ILR 36 All 308. This is on the principle that the proper legal effect of a proved or admitted fact is necessary a question of law—see Nafar Chandra Pal v. Shukur, 45 IA 183. 31. Kannashi Vershi v. Ratanshi Nenshi, AIR 1952 Kutch 85. 32. Sonal Singh v. Hukum Singh Chauhan, AIR 2007 (NOC) 2054 (Utr); Kashmir Singh v. Panchayat Samiti, (2004) 6 SCC 207 [LNIND 2004 SC 487]; Gurcharan Singh v. Surjit Kaur, AIR 2006 P&H 18; see also Binapani Paul v. Pratima Ghose, AIR 2008 SC 543 [LNIND 2007 SC 560]. 33. (1916) 20 Cal WN 103.

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(IN) Poonam Pradhan Saxena : Property Law 34. Narainrao v. Hanumantran, AIR 1930 Nag 273; Swaminatha v. Krishna, AIR 1942 Mad 28 [LNIND 1941 MAD 351]; Ram Sunder v. Ram Narain, (1918) 48 IC 936; Brojonath v. Koylash, (1868) 9 WR 593; Jokhu v. Mehdi, (1881) All WN 67; Bhagwan v. Upooch, (1869) 10 WR 185; see also Girindranath Mukherjee v. Saumen Mukherjee, AIR 1988 Cal 375 [LNIND 1988 CAL 73]; Bhim Singh v. Kan Singh, AIR 1980 SC 727 [LNIND 1979 SC 501]; Union of India v. Mokesh Builders, AIR 1977 SC 409 [LNIND 1976 SC 394]; Gangadara Ayyar v. Subramania Sastrigal, AIR 1949 FC 88. See also Rama Kanta Jain v. MS Jain, AIR 1999 Del 281 [LNIND 1999 DEL 238], wherein it was held that the person alleged to be a benami owner was the real owner of the property. For distinction between benami and sham transactions see Rajesh Kumar Agrawal v. Virendra Kumar Agarwal, AIR 1994 All 135 [LNIND 1993 ALL 211]. 35. Annanda Mahun v. Nilpamaru Loan Office, AIR 1921 Cal 549; Chapalavala v. Sarat Kumari, AIR 1941 Cal 318. 36. Niras Purve v. Tetri Pasin, (1916) 20 Cal WN 103; Maung Po Sin v. Ma Myit, AIR 1933 AP 361. 37. DC Barabanki v. Shafiqur Zaman, AIR 1928 PC 202; Karamshi v. Ratanshi, AIR 1952 Kutch 55; Mul Raj v. Fazal Imam, AIR 1923 All 583. 38. Mohamad Shakur v. Shah Jehan, 63 IC 125. 39. Thakuri v. Kundan, (1893) 17 All 280. 40. Kuttppa Nair v. Kuttisankaran Nair, (1957) Mad LJ 603. 41. Macneill v. Saroda Sundari, AIR 1929 Cal 83. 42. Abdul Khadar v. Rani Reddy, AIR 1979 SC 553 [LNIND 1978 SC 352]. 43. Chooni Lall Khemani v. Nilmadhab Barik, AIR 1925 Cal 1034. 44. Seshumall Shah v. Sayed Abdul Rashid, AIR 1991 Kant 273 [LNIND 1990 KANT 366]; Jamnadas v. Uma Shankar, (1914) ILR 36 All 308. 45. Mohamad Sulaiman v. Sakina Bibi, AIR 1922 All 392. 46. Dambar Singh v. Jawitri, (1907) 29 All 292; Abdulla Khan v. Bundi, (1912) ILR 34 All 22; Maung Bya v. Maun Gsan, 10 IC 779. 47. Thakur Krishna v. Kanhayalal, AIR 1961 All 206 [LNIND 1960 ALL 61]; Ratan Sen v. Suraj Bhan, AIR 1944 All 1. 48. Basdeo v. Jugraj, AIR 1948 Oudh 247; Narsingdas v. Sahanlal, AIR 1952 Punj 289; Anjuman Islamia v. Latafat Ali, AIR 1950 All 109 [LNIND 1949 ALL 129], a case of wakf. 49. Under the law as it stood prior to the passing of the Hindu Succession Act, 1956, as this Act conferred a right of absolute ownership in her favour, see Abdul Samad v. Girdhari Lal, AIR 1942 All 175; Shib Deo Misra v. Ram Prasad, AIR 1925 All 79; Pancham Singh v. Balak Ram, AIR 1930 All 374; Kapura v. Madhu Sudan, AIR 1943 Lah 168. 50. Rangaswami v. Sundarappamdia, AIR 1928 Mad 635 [LNIND 1928 MAD 17]; see however, Kuttappa Nair v. Kuttisankaran Nair, (1957) 2 Mad LJ 603. 51. Ramchandra v. Balla Singh, AIR 1986 All 193 [LNIND 1985 ALL 221]. 52. Lakshmibai v. Ravji, AIR 1949 Kutch 34; Savitri v. Kurriyakose, AIR 1958 Ker 325 [LNIND 1957 KER 173]; see also Chandi v. Anant Bali, AIR 1963 Oudh 398. 53. Suraj Ratan Thirani v. Azamabad Tea Co., AIR 1965 SC 295 [LNIND 1964 SC 4]; Kanji Ganesh v. Pannanand, AIR 1992 MP 208 [LNIND 1991 MP 172]. 54. Aukamma v. Narsaya, AIR 1947 Mad 127 [LNIND 1946 MAD 86]. 55. Lickbarrow v. Mason, (1787) 5 Term Rep 683, wherein it was held that whenever one of the two innocent person must suffer by the acts of a third he who has enabled such person to occasion the loss must sustain it; see also Sambhu Prasad v. Mahadeo Prasad, AIR 1933 All 493; Annondo vMOHUN v. Nilphamari, AIR 1921 Cal 549; Chapalavala v. Sarat Kumair, AIR 1941 Cal 318; Niras Purve v. Tetri Pasin, (1916) 20 Cal WN 103; Maung Po Sin v. Ma Myit, AIR 1933 AP 361. 56. Gurcharan Singh v. Punjab State Electricity Board Patiala, AIR 1989 P&H 127, wherein it was held that a minor is incapable of giving consent and therefore this doctrine would not apply when the owner is a minor; see also Abdulla Khan v. Bundi, (1912) ILR 34 All 22; Dalibai v. Gopibai, (1902) ILR 26 Bom 433; Sadiq Ali Khan v. Jai Kishori, AIR 1928 PC 152; Gadigeppa v. Balangauda, AIR 1931 Bom 561; Ram Charan v. Joy Ram, (1912) 17 Cal WN 10, wherein it was held that the doctrine of estoppel does not apply to minors and still less will. 57. Ram Prasad v. Imratbai, AIR 1922 Nag 79; Sheorilal v. Damodar Das, AIR 1938 Lah 86. 58. Dungariya Nand Lal, (1906) 3 All LJ 534. 59. Fazal Hussain v. Mh Kazim, AIR 1934 All 193; Jessa Ram v. Ghulaman, AIR 1937 Lah 816; Aria v. Bhagawat, AIR 1957 Ori 157; Ramjanam v. Beys, AIR 1958 Pat 537; Chattur v. Sanjaran (1957) 2 Mad LJ 603 ; However, see also Shafiqullah v. Samiullah, AIR 1929 All 943, wherein it was held that consent should be with respect to the transfer. 60. AIR 1929 All 943.

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(IN) Poonam Pradhan Saxena : Property Law 61. Samay Singh v. Hukum Singh Chauhan, AIR 2007 (NOC) 2054 (Utr). 62. Mulchand Hazarimal v. Hassomal, AIR 1937 Sau 177; Shamezunissa v. Ali Asghar, AIR 1936 Oudh 87; Ananda v. Parbati, (1907) 4 Cal LJ 198; Sara Chunder v. Gopal Chunder, (1893) ILR 20 Cal 296. 63. P Convent v. Subbana, AIR 1948 Mad 320 [LNIND 1947 MAD 270]; Natabar v. Nimai, AIR 1952 Ori 75 [LNIND 1951 ORI 55]; see also Sarju Kari v. Panchananda Sarna, AIR 1959 Ass 15; Jit Singh v. Kalapati, AIR 1962 Punj 46; Ghulam Ahmed v. Bashir Ahmed, AIR 1960 Mad 99 [LNIND 1959 MAD 77]. 64. Shamshar v. Kakshi, AIR 1947 Lah 147; Nagorao v. Jogeshwar Murlidhar, AIR 1944 Nag 20; Tejumal Josumal v. Rochalbai, AIR 1940 Sau 212; Kanchidelal v. Kanhai, AIR 1932 Nag 165; Joy Chandra v. Shreenath, (1902) 32 Cal 357; Mahamad Sujat v. Chandbi, AIR 1927 Nag 41; Gurbinder Singh v. Lal Singh, 60 Punj LR 528, wherein it was held that silence or inactivity can never amount to implied consent even when the owner is aware of his rights and of the transfer; see also Shamsher Chand v. Bakshi Meher Chand, AIR 1947 Lah 147, wherein it was held that a person giving consent must be aware of his own rights. 65. Umaram v. Purukchand, AIR 1925 Cal 993; Nagarao v. Jogeshwar, AIR 1944 Nag 20. 66. Gurcharan Singh v. Punjab State Electricity Board Patiala, AIR 1989 P&H 127. 67. KV Galliara v. U Thet, AIR 1929 Rang 117; see also for a contrary opinion Sita Ram v. Raj Narayan, AIR 1934 Oudh 283. 68. Zarifunnissa v. Sahfiquz-zaman Khan, AIR 1928 PC 202; Bhagat Amirchand v. Bibi Fatima, AIR 1937 Pesh 58. 69. Azimabibi v. Shamalanand, (1913) ILR 40 Cal 378. 70. Mohanta Bhagaban v. Bisweswar, AIR 1927 Cal 220. 71. Ali Mohamad v. Aftahuddin, (1915) 20 Cal WN 355. 72. Shorilal v. Damodar, AIR 1938 Lah 86. 73. Baidya Nath v. Alefjan, AIR 1923 Cal 240. 74. Sahar Bano v. Raj Bahadur, AIR 1934 Oudh 233 dissenting from Naraprath v. Puranbali, 34 IC 494; Dwarka Halwai v. Sithprasad, AIR 1940 All 256; Lalit Mohan v. Thakurain Luchmi, AIR 1946 Oudh 213. 75. Jote Singh v. Ram Das Mahto, AIR 1996 SC 2773 [LNINDORD 1996 SC 189]; Vanan v. Tikaram, AIR 1927 Bom 368; Mangat v. Ghasikhan, AIR 1929 All 800; Purnmal v. Shivalal, AIR 1935 All 234; Nanalal v. Sunderlal, AIR 1944 All 79; Venkatarammayya v. Sheshayya, AIR 1942 Mad 193 [LNIND 1941 MAD 208]; Ram Chandra v. Kandoo, AIR 1940 Nag 7. 76. Jogendra v. Salamat, AIR 1930 Cal 92; Khwaja Mohamad v. Muhamad Ibrahim, (1904) ILR 26 All 490; Ghulam Fatima v. Gopal Din, AIR 1943 Lah 113; Baidya Nath v. Alef Jan, AIR 1923 Cal 240; Karamat Khan v. Samiuddin, (1886) ILR 8 All 409; Fakarrudin Saib v. Ramayya Sethi, AIR 1944 Mad 299; Annoda Mohun v. Nilphamari, AIR 1921 Cal 549. 77. Jogendra v. Salamat Khan, AIR 1930 Cal 92; Parawati Ammal v. Anga Muthu, AIR 1942 Mad 730 [LNIND 1942 MAD 197]. 78. Sethumadhava v. Bacha, AIR 1928 Mad 778; see however, Sahodra v. Badri Prasad, AIR 1929 All 737. 79. Before the Hindu Succession Act, 1956 was passed. 80. Phool Kuar v. Prem Kaur, AIR 1952 SC 207 [LNIND 1952 SC 27]. 81. Kapura v. Madhusudan, AIR 1943 Lah 168; Khushwagt v. Jagannath, AIR 1930 Oudh 184; Shib Deo v. Ram Prasad, AIR 1925 All 79; Phool Kaur v. Prem Kaur, AIR 1952 SC 207 [LNIND 1952 SC 27]. 82. Gurcharan Singh v. Surjit Kaur, AIR 2006 P&H 18; Zungabai v. Bhawani, (1907) 9 Bom LR 388 [LNIND 1907 BOM 20]. 83. Kanhu Lal v. Palu Sahu, (1920) 5 Pat LJ 521. 84. Chitabalakundu v. Sailen Bihari Paul, AIR 1988 NOC 68 (Cal); Jamshedji v. Doraji, AIR 1934 Bom 1; Sadha Singh v. Mangal Singh, AIR 1933 Oudh 166; U Po Shi v. Edward, AIR 1934 Rang 139; Kanchedilal v. Kanhai, AIR 1932 Nag 165; Kasturi Bibi v. Balliram, AIR 1923 Nag 15; Mohamad Shafi v. Mohamad Said, AIR 1930 All 807; Mohamad Sulaiman v. Sakina Bibi, AIR 1922 All 392; Jagmohun Das v. Indar Prasad, AIR 1929 Oudh 160; Rajani Kanta v. Bashiram Mistari, AIR 1929 Cal 636; Rahiman Beevi v. Khatun Bee, 35 IC 569; Khatun Fatima v. Shib Singh, AIR 1933 All 917. 85. Khwaja Mohamad v. Mohamad Ibrahim, (1904) ILR 26 All 490. 86. Punendu Nath v. Hanut Mull, AIR 1940 Cal 565. 87. Pratap Chand v. Saiyida Bibi, (1901) ILR 23 All 443; see also Layak Ram v. Dharmavati, AIR 2010 P&H 95, wherein it was held that as the vendees had inspected the revenue records which showed vendor as the owner of half of the share in the property they would be treated as bona fide purchasers. 88. Rasulanbibi v. Nandlal, AIR 1930 All 522, wherein it was held that the duty is a strict one, more so when the transferor was a Muslim. See also Harnarian v. Ashiq, AIR 1942 Oudh 313; Afzal v. Muhamad, AIR 1936 Nag 214. 89. Ballumal v. Ramkissan, AIR 1921 All 311; Mohamad Din v. Sardarbai, AIR 1927 Lah 665; Macneill v. Sarodasundari, AIR 1929 Cal 83; Chettyar Firm v. Kallama, AIR 1935 Rang 423; Maung Po Lu v. Bank of Chettinad, AIR 1934 Rang 313; Dwarkadas v.

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(IN) Poonam Pradhan Saxena : Property Law Rangill Munnalal, AIR 1953 Punj 28; Ramsaran v. Harihar, AIR 1961 Pat 314; Ghulam Siddique v. Jogendra Nath, AIR 1926 Cal 916; Jasodar Dusadin v. Sukurmani, AIR 1937 Pat 353; Sheotahal v. Ramnarain, AIR 1930 All 422; Rajani Kanta v. Bashiram Mestari, AIR 1929 Cal 636; Baidya Nath v. Alef Jan, AIR 1923 Cal 240; Ramcoomar v. Macqueen, 11 Beng LR 46. 1.

Ratan v. Suraj, AIR 1944 All 1; Beyas v. Ramjanam, AIR 1961 Pat 16; Kartar Singh v. Mehr Nishan, AIR 1934 Lah 885.

2.

Himaprastha Financiers v. Union of India, AIR 1976 HP 29 [LNIND 1975 HP 30].

3.

Vyankapacharya v. Yamanasami, (1911) 35 Bom 269.

4.

Kanhu Lal v. Ram Singh, (1920) 5 Pat LJ 521.

5.

Ballu Mal v. Ram Kishan, AIR 1921 All 311; Fazal Hussein v. Mohamad Kazim, AIR 1934 All 193.

6.

Mohamad Sujat v. Chandbi, AIR 1927 Nag 41.

7.

Shiam Lal v. Matadin, AIR 1934 Oudh 460; DAV College Society v. Umrao, AIR 1935 Lah 410; Mazhir Hassan v. Mukhtar Hasan, AIR 1938 All 64; Maung Po Lu v. Bank of Chettinad, AIR 1934 Rang 313.

8.

Hakiman v. Badr-un-Nissa, AIR 1934 Lah 658.

9.

Mathura v. Ambika, (1914) All LJ 993.

10. Siddappa v. Vishwa, AIR 1943 Bom 419; Nanuram v. Radhabai, AIR 1940 Nag 241; Abdul v. Nawab, AIR 1949 Assam 17. 11. Khushal Chand v. Trimbak, AIR 1947 Bom 47; Chandi Prasad v. Gadadhar, AIR 1949 Cal 666; Bhupatrai v. Shania, (1949) 2 Sau LJ 203. See also Nafarchandra v. Shukur, 45 IA 183, wherein it was held that the proper legal effect of a proved fact is necessarily a question of law. 12. Parbati v. Kashmiri Lal, AIR 1956 Cal 69; Karamshi v. Ratanshi, AIR 1952 Kutch 55; Gauri Shanker v. Jwala Mukhi, AIR 1962 Pat 393. 13. Fazal v. Kazim, AIR 1934 All 193. 14. CIT Convent v. Subbana, AIR 1948 Mad 320 [LNIND 1947 MAD 270]. 15. Khwaja Afzal v. Saheb, AIR 1936 Nag 214. 16. Layak Ram v. Dharmavati, AIR 2010 P&H 95; Chandrakanta v. Bhagjur, 1 IC 525. 17. Laxman v. Balkrishna Balwant Ghatage, AIR 1995 Bom 190 [LNIND 1994 BOM 647]; Hakiman v. Badrunnisa, AIR 1934 Lah 658. 18. Jagmohun Das v. Indar Prasad, AIR 1929 Oudh 160; Abbas Bandi v. Saiyid Muhamad, AIR 1929 Oudh 193; Ragho v. Dwarka Das, AIR 1924 Lah 738; Mollaya v. Krishnaswami, AIR 1925 Mad 95 [LNIND 1924 MAD 58]. 19. Angammal v. Venkata, (1903) ILR 26 Mad 509. 20. Qandhara Singh v. Union of India, AIR 1984 P&H 51. 21. Sunil Kumar v. Thakur Singh, AIR 1984 Pat 80. 22. IA Nalvade v. DS Surati, AIR 1995 SC 2486 [LNIND 1995 SC 783]. 23. Punendru Nath v. Hanut Mull, AIR 1940 Cal 565; Gholam Siddique v. Jogendra Nath, AIR 1926 Cal 916. 24. Abbas Bandi v. Syed Mohamad, AIR 1929 Oudh 193; Sundre v. Udaya, AIR 1944 All 42; Chandrabagh v. Anand, AIR 1938 Nag 142; Ram v. Muktinath, AIR 1956 Assam 154; Mohamad Sahfi v. Mohamad Said, AIR 1930 All 847; Puranman v. Sahvalal, AIR 1935 All 324; Ramcharitar v. Shiva, AIR 1934 Pat 67. 25. Rama Kanta Jain v. MS Jain, AIR 1999 Del 281 [LNIND 1999 DEL 238]; Radhey Shyam v. Maharaj Bahadur Singh, AIR 1982 Cal 571 [LNIND 1981 CAL 276]; Bhupendra Kumar v. MK Lakshmi, AIR 1990 Mad 46 [LNIND 1989 MAD 81]. 26. Suraj Ratan Thirani v. Azamabad Tea Co., AIR 1965 SC 295 [LNIND 1964 SC 4]; Hazarkhan v. Kesarkan, AIR 1968 Guj 229 [LNIND 1967 GUJ 106]; Gurbaksh Singh v. Nikka Singh, AIR 1963 SC 1917 [LNIND 1962 SC 299]; Maung Sin Ba v. Maung Kyne, AIR 1934 Rang 90. 27. Dhuruba v. Puma, AIR 1973 Ori 192 [LNIND 1973 ORI 23]; Rajani Kanta v. Bashiram Mestari, AIR 1929 Cal 636; Ramcoomar v. Macqueen, IA Supp vol 40; Baidya Nath v. Alef Jan, AIR 1923 Cal 240; Muhamad Sujat v. Chand Bi, AIR 1927 Nag 41. 28. Krishnanand Agnihotri v. State of Madhya Pradesh, AIR 1977 SC 796; Jaydalal Poddar v. Bidi Hazra, AIR 1974 SC 171 [LNIND 1973 SC 313]; Maung Po Kun v. Maung Poshein, AIR 1926 PC 77; Girindranath Mukherjee v. Souman Mukherjee, AIR 1988 Cal 375 [LNIND 1988 CAL 73]. 29. Seshappier v. Subramanian Chettiar, AIR 1914 Mad 470. 30. Sethumadhava v. Bacha Bibi, AIR 1928 Mad 778. 31. Purnendu v. Hannat Mal, AIR 1940 Cal 565.

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(IN) Poonam Pradhan Saxena : Property Law 32. Judah v. Abdool, 22 WR 60. 33. See also the Specific Relief Act, 1963, s. 13, where it applies to both movable as well as immovable poperties; see Sinnam v. GS Alagiri, AIR 1924 Mad 438 [LNIND 1923 MAD 133]; EA Patra v. ER Patra, AIR 1980 Ori 95 [LNIND 1980 ORI 67]. Under English law due to the application of equity which regards as done which ought to be done as soon as the property is afterwards acquired, an equitable interest in it passes to the transferee; see Holroyd v. Marshall, (1862) 10 HLC 191; Collyer v. Issacs (1881) 19 Chd 342; Tailby v. Official Receiver, (1888) 13 App Cas 523. Under the Indian law the moment the property is acquired no estate passes to the transferee but an obligation is attached to the property. See Transfer of Property Act, 1882, s s. 54, 40. 34. Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058 [LNIND 2007 SC 120]; Sachidanand Pandey v. Ram Phar Singh, AIR 2004 All 232; Lakhwinder Singh v. Paramjit Kaur, AIR 2004 P&H 6. 35. Prem Nath Khanna v. State of Orissa, AIR 2009 Ori 166 [LNIND 2009 ORI 59]; Ram Bhawan Singh v. Jagdish, ( 1990) 4 SCC 309 [LNIND 1990 SC 443]; Abdul Kader v. Jamebie Khatun, (1951) Andh Pra 815. 36. Saradamoyi v. Atul Chandra, AIR 1923 Cal 165. 37. Hattikudur v. Andur, (1915) 28 Mad LJ 44, wherein it was held that the representation need not be intentionally false. 38. Jamuna Mayee v. Koimaindra, AIR 1953 Mad 427. 39. In absence of such a representation the doctrine does not apply; see Kanthimathinatha v. Vayyapuri, AIR 1963 Mad 37 [LNIND 1962 MAD 54]; Ram Bharose v. Bhagwan Din, AIR 1943 Oudh 196; Krishna Parmada v. Dhirendra, AIR 1929 PC 50; Ladu Narain v. Gobardhan, AIR 1925 Pat 470; Pandiri Bangaram v. Karumoory, (1910) 34 Mad 159; Jagan Nath v. Dibbo, (1908) 31 All 53. 40. Sardamoyi v. Anil Chandra, AIR 1923 Cal 165; Kanthimathsinatha v. Vyyapuri, AIR 1963 Mad 37 [LNIND 1962 MAD 54]; Ram Bharosey v. Bhagwan Din, AIR 1943 Oudh 196; Jabedali v. Bhagwan Din, AIR 1923 Cal 423; Krishna Paramada v. Dhirendra, AIR 1929 PC 50; Lado Narain v. Gobardhan, AIR 1925 Pat 470; Jagannath v. Dibbo, (1908) 31 All 53. 41. Mulraj v. Ider Singh, AIR 1926 All 102; Gopi Nath v. Rup Ram, AIR 1930 All 786; Sunder Lal v. Ghissa, AIR 1929 All 589; Lado Narain v. Gobardhan, AIR 1925 Pat 470; Kodi v. Moidin, (1918) 35 Mad LJ 120; Jagenath v. Dhanpati, AIR 1934 All 969 overruled by Parmanand v. Champalal, AIR 1956 All 225 [LNIND 1955 ALL 238] FB and dissented form in Vyatla v. Iwaturi, (1956) AWR 115. 42. Jumma Masjid v. K Deviah, AIR 1962 SC 847 [LNIND 1962 SC 4], wherein it was held that when a person transfers property representing that he has a present and transferable interest therein whereas he has only a spes successionis the transferee is entitled to the benefit of the doctrine of feeding the grant by estoppel; Panduri v. Karumoory, (1908) 34 Mad 159. 43. Ram Bhawan Singh v. Jagdish, (1990) 4 SCC 309 [LNIND 1990 SC 443]; Abdul Kadar v. Jamebie Khatun, (1951) AP 815. 44. Lada v. Gobardhan, AIR 1925 Pat 470; Mulraj v. Indur Singh, AIR 1926 All 102 overruled in AIR 1956 All 225 [LNIND 1955 ALL 238](FB); Adhilakshmi v. Nattasivan, AIR 1944 Mad 530. 45. Indroloke Studio v. Shanti, AIR 1960 Cal 609; EA Patra v. ER Patra, AIR 1980 Ori 95 [LNIND 1980 ORI 67]; see also Dwarka Prasad v. Nasir Ahmed, AIR 1925 Oudh 16; Bhagwan Din v. Muhamad Yunus Khan, AIR 1934 Oudh 112. 46. Jharu Ram Roy v. Kanijet Roy (2009) 4 SCC 60 [LNINDORD 2009 SC 300]; see also Shanti Sports Club v. Union of India (2009) 15 SCC 705 [LNIND 2009 SC 1724], wherein it was held by the Apex Court that the rule that no one can convey a better title than what he himself possess applies in case the property is transferred after its acquisition. Such transfer would be void and the only remedy available to the transferee would be that he would step into the shoes of the transferor and can claim compensation for such acquisition. See also Maina v. Bhagwati, AIR 1936 All 557. 47. Kesau v. Seharam, AIR 1951 Nag 8. 48. Ganeshdas v. Kamlabai, AIR 1952 Nag 29. 49. Jainur v. Chafina Bibi, AIR 1951 Assam 20. 50. Parmanand v. Champalal, AIR 1956 All 225 [LNIND 1955 ALL 238]. 51. Peyare Lal v. Misri, AIR 1940 All 453. 52. Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058 [LNIND 2007 SC 120]. 53. Ram Lal v. Shiama Lal, AIR 1931 All 275; Goya Din v. Kashi, (1907) ILR 29 All 163. 54. (1890) 14 Mad 459 ; see also Loot Narian v. Showkie Lal, (1878) 2 Cal LJ 382; Deb Nath Moral v. Sashi Bhusan Moral, AIR 1934 Cal 82. 55. AIR 1923 Cal 535. 56. Kamla Prashad v. Nathuni, AIR 1922 Pat 347; Ram Ratan v. Chaudhary, AIR 1923 Oudh 265; Ramaswami Pattamali v. Lakshmi, AIR 1962 Ker 313 [LNIND 1961 KER 343].

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(IN) Poonam Pradhan Saxena : Property Law 57. Mutthuswami Pillai v. Sandan Velan, AIR 1927 Mad 649 [LNIND 1926 MAD 497]; see also Sundar Lal v. Ghissa, AIR 1929 All 589. 58. Kharag Narayan v. Janki Rai, AIR 1937 AP 546. 59. S Kanaka Durga Manikyhamba v. Ramapragada Surya Prakash Rao, AIR 2010 AP 99 [LNIND 2009 AP 838]. 60. Kartar Singh v. Harbans Kaur, (1994) 4 SCC 730. 61. Ganga Prasad v. Raghubansa, AIR 1937 Oudh 127; Zogu Ram v. Venkata Kreshnayya, AIR 1946 Mad 107 [LNIND 1945 MAD 246]; Madirazu v. Bommadevara, AIR 1946 Mad 107 [LNIND 1945 MAD 246]; Gopi Nath v. Rup Ram, AIR 1930 All 786, wherein it was held that a person making erroneous representation cannot take the defence that the transferee did not make proper inquiries. 62. In Bloomenthal v. Ford, (1897) AC 156, 162, Lord Halsbury observed with respect to a person who makes a misrepresentation, that was acted upon by the transferee that he cannot turn back and upon his acquisition of competency to perform his obligations under the contract, say, “I told you so and so you ought not to have believed me. You were too great a fool. I had a right to mislead you because you were too great a fool”. 63. (1994) 4 SCC 730. 64. Ram Bhawan Singh v. Jagdish, (1990) 4 SCC 309 [LNIND 1990 SC 443]. 65. Ramayya v. Jagannadhan, AIR 1921 Mad 410; Ramasami v. Ramasami, (1907) ILR 30 Mad 255; Sannamma v. Radhabhayi, (1918) 41 Mad 418. See also Radha Bai v. Kamod, (1908) ILR 30 All 38, wherein a mortgage by a proprietor disqualified under the Jhansi Encumbered Estates Act, 1882, could not be enforced even after the disqualification was removed. 66. Veeraswami v. Durga Venkata Subbarao, AIR 1957 Andh Pra 288. 67. Ajudhia Prasad v. Chandan Lal, AIR 1937 All 610. 68. Johri v. Mahila Draupati, AIR 1991 MP 340 [LNIND 1990 MP 162]. 69. Ramkali v. State of Uttar Pradesh, AIR 2009 (NOC) 190 (All). 70. Annnada v. Gour Mohan, AIR 1921 Cal 501. 71. Indra Lok v. Santi Debi, AIR 1960 Cal 609. 72. Sadhu Saran v. Sheo Prasad, AIR 1959 Pat 278; Deoman v. Atmaram, AIR 1948 Nag 122. 73. Ganga Baksh v. Madho Singh, AIR 1955 All 587. 74. Jumma Masjid v. K Deviah, AIR 1962 SC 847 [LNIND 1962 SC 4]. 75. Ramkrishan v. Anasuyabai, AIR 1924 Bom 300. 76. Ramdeo v. Deputy Director, AIR 1968 All 262 [LNIND 1966 ALL 127]. 77. Anand Padhan v. Dhuba Mohanty, AIR 1979 Ori 5. 78. Jadu Bans v. Sheojit Singh, 10 IC 443. 79. Cheta Bahira v. Purna Chandra, (1914) 19 Cal WN 1272; Arulayi v. Jagadeesiah, AIR 1964 Mad 122 [LNIND 1963 MAD 65]. 80. Mohan Singh v. Sewa Ram, AIR 1924 Oudh 209. 81. Ajijuddin v. Sheikh Budan, (1895) ILR 18 Mad 492. 82. Durga Das v. Muhamad, (1908) All WN 155; Arulayi v. Jagadeesiah, AIR 1964 Mad 122 [LNIND 1963 MAD 65]; Sinclair v. Sitab Khan, (1890) 3 CPLR 72; Ajijuddin v. Sheikh Budan, (1895) ILR 18 Mad 492. 83. Ramdeo v. Deputy Director, AIR 1968 All 262 [LNIND 1966 ALL 127]. 84. Anand Padhan v. Dhuba Mohanty, AIR 1979 Ori 5. 85. Ganesdas v. Kamalabai, AIR 1952 Nag 29. 86. Krishnadhan Chandra v. Kanialal Ghose, AIR 1973 Cal 422 [LNIND 1973 CAL 64]. 87. Narayan v. Laxmikant, (1955) Nag 204. 88. Durga Das v. Muhamad, (1908) All WN 155; Arulayi v. Jagadeesiah, AIR 1964 Mad 122 [LNIND 1963 MAD 65]; Sinclair v. Sitab Khan, (1890) 3 CPLR 72; Ajijuddin v. Sheikh Budan, (1895) ILR 18 Mad 492. 89. Gomathy Ammal v. Rukmini Ammal, AIR 1967 Ker 58 [LNIND 1966 KER 33]. 90. See The Transfer of Property Act, 1882, s. 43.

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(IN) Poonam Pradhan Saxena : Property Law 91. Muthiya v. Chettiar v. Doraswami, AIR 1927 Mad 1091 [LNIND 1927 MAD 489]; Narasimudu v. Basava Sankaran Basava; Sanakaran v. Anjaneyulu, AIR 1927 Mad 1 [LNIND 1926 MAD 267] FB. 92. Syed Nurul Hossein v. Sheosahai, (1893) ILR 20 Cal 1. 93. Rampyari v. Ramnarain, AIR 1985 SC 694 [LNIND 1985 SC 55]. 94. Bhrammo Sanathan Dhanna Mahamandal v. Prem Kumar, AIR 1985 SC 1102 [LNIND 1985 SC 195]. 95. Mahadeo v. Har Baksh, AIR 1928 Oudh 13. 96. Sulin Mohan v. Rajkrishna, AIR 1921 Cal 582. 97. Bhairab Chandra Mandal v. Jiban Krishna Mandal, AIR 1921 Cal 748. 1.

See Durga Das v. Muhamad, (1908) All WN 155; Sundariya v. Ramashastri, AIR 1955 Mys 8; Bahima v. Purna Chandra, 19 CWN 1272.

2.

Beni Rai v. Natabar Sirkar, (1916) 33 IC 975; Hanuman Das v. Gurchay Singh, (1913) 18 Cal LJ 181; Cheta Bahira v. Purna Chandra, (1914) 19 Cal WN 1272.

3.

Girija Shanker v. Jagannath, AIR 1952 All 301 [LNIND 1950 ALL 188]; see however Mohan Singh v. Sewa Ram, AIR 1924 Oudh 209.

4.

Virya v. Hanumanta, (1890) 14 Mad 459; Randhir Singh v. Bhagwan Das, (1913) ILR 35 All 541.

5.

Deb Nath Moral v. Sashi Bhusan Moral, AIR 1934 Cal 82.

6.

Loot Narian v. Showkie Lal, (1878) 2 Cal LR 382.

7.

Surendra v. Rajendra, (1918) 27 Ca lLJ 289.

8.

Rustom Ali v. Abdul Jabar, AIR 1923 Cal 535; see also Surendra v. Rajendra, (1918) 27 Cal LJ 289.

9.

Indraloke Studio Ltd. v. Santi Debi, AIR 1960 Cal 609.

10. Zollikofer v. Official Assignee, AIR 1927 Rang 100; Ramnarain v. Mohanian, 26 All 82 FB; Sarju v. Bindeshari, (1911) ILR 33 All 382; Hemamoye v. Akbar, 41 CWN 1124; Eshaqlal v. Dulla, AIR 1930 All 115; Gopinath v. Roopram, AIR 1930 All 760; Sundar v. Ghitsa, AIR 1929 All 589. 11. Autar Singh v. Lal Singh, AIR 1934 Lah 996; Sulin v. Raj Krishna, AIR 1921 Cal 582; Protap v. Judhistir, (1914) 19 Cal LJ 408. 12. Mohan Singh v. Sewa Ram, AIR 1924 Oudh 209. 13. Bhairab v. Jiban, AIR 1921 Cal 748. 14. Jote Singh v. Ram Das Mahto, AIR 1996 SC 2773 [LNINDORD 1996 SC 189]; Kama Rai v. Nona Keshore, AIR 1952 All 287 [LNIND 1950 ALL 301]. 15. Alukmonee Dabe v. Banee Madhub, (1877) 4 Cal 677; Nanak v. Gandu Ram, AIR 1938 Lah 360. 16. Ananda v. Gour Mohan, AIR 1923 PC 189. 17. Ramasami v. Ramasami, (1907) ILR 30 Mad 255; Gopala Dasu v. Rami, AIR 1921 Mad 410; Ramaya v. Dara Satchi, (1913) 25 Mad LJ 635; Ramayya v. V Jaganadhan, (1916) ILR 39 Mad 930; Sanamma v. Radhabhayi, (1918) ILR 41 Mad 418. 18. Ajudhia Prasad v. Chandan Lal, AIR 1937 All 610 FB. 19. Johri v. Mahila Draupati, AIR 1991 MP 340 [LNIND 1990 MP 162]. 20. Deoman v. Atma Ram, AIR 1948 Nag 122. 21. MC Lakshminarasappa v. Asst Commr Chikkaballapur, AIR 1993 Kant 326 [LNIND 1992 KANT 304]. 22. Goya Din v. Kashi, (1907) ILR 29 All 163. 23. Makoda Devi v. Umesh Chandra, (1907) 7 Cal LJ 381. 24. Shyama v. Ananda, (1880) 3 Cal WN 323. 25. Manjappa v. Krishnayya, (1908) ILR 29 Mad 113. 26. Balbhaddar v. Kusehar Das, AIR 1928 Oudh 344. 27. Panchanon v. Nirode, AIR 1962 Cal 12 [LNIND 1960 CAL 153]. 28. Delhi Development Authority v. RM Agarwal, AIR 1999 SC 1256 [LNIND 1999 SC 276]. 29. Ibid. 30. Babulal v. Noor Mohamad, AIR 1934 All 731.

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(IN) Poonam Pradhan Saxena : Property Law 31. Sankari Ammal v. Ramachandra, AIR 1954 Mad 861 [LNIND 1953 MAD 223]. 32. With respect to the illustrations appended to a section the Judicial Committee in Mahomed Syedol Ariffin v. Yeoh Ooi Cark, had made the following observation, ‘it is the duty of a court of law to accept, if that can be done, the illustration given as being both of relevance and value in the construction of the text. The illustration should in no case be rejected because they do not square with ideas possible derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselvesthe illustrations although not part of the sections, been expressly furnished by the legislature as helpful in the working and application of the stature, should not be thus impaired. 33. AIR 1962 SC 847 [LNIND 1962 SC 4]: (1962) Supp 1 SCR 554. 34. AIR 1933 Mad 795 [LNIND 1933 MAD 166]. 35. AIR 1915 Mad 972. 36. AIR 1935 All 244. 37. AIR 1928 Oudh 13. 38. Hari Harayyar v. Ahmmadunni, AIR 1040 Mad 491; Balwant Rai v. Gurdas Rai, AIR 1974 P & H 160; Haranandan Das v. Muhamad Kalim, AIR 1944 Pat 341. 39. Rajani Mohan v. Sahmbhunath, AIR 1929 Cal 710; Mohamad Jafar v. Mazhar-ul-ashan, (1906) 3 All LJ 474; Bhagwat Sahai v. Bipin Bihari, (1910) ILR 37 Cal 918; Hemadri Nath Khan v. Ramani Kanta Roy, (1897) ILR 24 Cal 575. 40. KS Krishna v. Krishan, AIR 1993 Ker 134 [LNIND 1992 KER 329]. 41. Pudipaddy Lakshmi Narasamma v. Gadi Ranganaya Kamma, AIR 1962 Ori 147 [LNIND 1961 ORI 60]; Jagatbandhu Biswas v. Iswar Chandra, AIR 1948 Cal 61. 42. Krishanji v. Sitaram, (1881) ILR 5 Bom 496; Ishrappa v. Krishna, AIR 1922 Bom 413. 43. Mohesh Narayan v. Nawabat Pathak, 32 Cal 837. 44. Shrilal v. Babu Vasudeo, (1960) ILR 1 Raj 948. 45. Abdul v. Mohamad Zahoor, AIR 1962 Pat 300. 46. Unless it is proved that the co-sharers are in possession of separate portion by mutual arrangement for the sake of convenience, see Shiam Lal Saha v. Mt Fulla, AIR 1922 Cal 147; Ekkabar v. Kon Ali, AIR 1925 Cal 272. 47. Boloram v. Dandiram, AIR 1950 Assam 1. 48. Chanda Singh v. Santa Singh, AIR 1954 Pepsu 6; Baldev Singh v. Darshani Devi AIR 1993 HP 141 [LNIND 1993 HP 20]. 49. A co-owner cannot appropriate to his exclusive use any portion of the joint property see Muthu v. Ammal, AIR 1993 Ker 272; I Gouri v. CH Ibrahim, AIR 1980 Ker 94 [LNIND 1979 KER 128]. For inter se rights and liabilities of co-owners, see Om Prakash v. Chhaju Ram, AIR 1992 P&H 219; Sant Ram Nagina Ram v. Daya Ram, AIR 1961 Punj 528; Bhartu v. Ram Sarup, (1981) PLJ 204. 50. The principle stated here does not override the Mitakshara law, see Premanayakam v. Sivaraman, AIR 1952 Mad 419 [LNIND 1951 MAD 94]; Kota Balabhadra v. Khetra Das, (1916) 31 Mad LJ 275. 51. Sheo Nath Seth v. Krishna Kumari Devi, AIR 1973 All 496; see also Ramdas v. Sitabai, AIR 2009 SC 2735 [LNIND 2009 SC 1367], where the suit of the alienee for partition and possession of the undivided coparcenary property was dismissed by the court on the ground that a coparcener is incompetent to alienate his undivided share in the Mitakshara coparcenary without the consent of the other coparceners. 52. Ram Dayal v. Manaulal, AIR 1973 MP 222 [LNIND 1973 MP 44], wherein it was held that though a coparcenor can alienate his undivided interest in the property, he has no right to alienate a specific property belonging to coparcenary. In case of such alienation it would be valid only to the extent of his share; see also Maharu v. Dhansai, AIR 1992 MP 220 [LNIND 1991 MP 322]. 53. Lalita James v. Ajit Kumar, AIR 1991 MP; Ramdayal v. Manik Lal, AIR 1973 MP 22. Such a partition suit need not be general in character but can be with respect to a specific property. See Ram Mohun v. Mul Chand, (1906) ILR 28 All 39. 54. Ramdas v. Sitabai, AIR 2009 SC 2735 [LNIND 2009 SC 1367]; Ishrappa v. Krishna, AIR 1922 Bom 413; Manjawa v. Shanmuggu, (1915) ILR 38 Mad 684; Shivmurteppa v. Virappa, (1900) ILR 24 Bom 128. 55. Such charge or encumbrance may also include a Hindu sons liability attaching to that interest of paying his fathers personal debts untainted with immorality, see Venkureddi v. Venku Reddi, AIR 1927 Mad 471 [LNIND 1926 MAD 417]. 56. Babaji v. Vasudev, (1876) ILR 1 Bom 95; Achut Sitaram v. Shivaji Rao, AIR 1937 Bom 244; Kallappa v. Venkatesh (1878) ILR 2 Bom 676. 57. The classical Hindu law rule that a dwelling house cannot be partitioned at the instance of female members was incorporated in s. Sections 23 of the Hindu Succession Act, 1956. This rule is now abrogated by the amendment to the Act, in September 2005.

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(IN) Poonam Pradhan Saxena : Property Law 58. Maung Ba Tu v. Ma Thet Su, AIR 1928 Rang 73; Durga Charan v. Khundkar, (1918) 27 Cal LJ 441. 59. Rajani Mohan v. Sahmbhunath, AIR 1929 Cal 710. 60. Mohamad Jafar v. Mazharulashan, (1906) 3 All LJ 474. 61. Bhagwat Sahai v. Bipin Bihari, (1910) ILR 37 Cal 918. 62. Hemadri Nath Khan v. Ramani Kanta Roy, (1897) ILR 24 Cal 575; Rajani Mohan v. Sahmbhunath, AIR 1929 Cal 710. 63. Haranandan Das v. Muhamad Kalim, AIR 1944 Pat 341. 64. Balwant Rai v. Gurdas Rai, AIR 1974 P&H 160. 65. Chandra Shekar v. Abidalli, AIR 1925 Nag 68. 66. Ram v. Ram Kishan, AIR 2010 All 125 [LNIND 2010 ALL 356]. 67. ‘Dwelling house includes the structure or the building and also adjacent buildings, curtilage, courtyard, garden or orchard and every thing that is for convenient occupation of the house; see Nilkamal v. Kamakshya, AIR 1928 Cal 539. But the mere fact of the undivided character of any house due to nature of construction and the land underneath would not make it undivided for the application of this rule; see St Catherine College v. Poring, (1979) 3 All ER 250, 255. 68. See The Transfer of Property Act, 1882, s. 44. The object is to avoid the inequity of permitting a stranger tointrude upon the privacy of a joint Hindu or Mohammedan family residence; see Dulal Chandra Chatterjee v. Gosthabehari Mitra, AIR 1953 Cal 259 [LNIND 1952 CAL 97]. See also Balaji v. Gonesh, (1881) ILR 5 Bom 504, wherein Westropp CJ made the following remarks, ‘we also deem it a far safer practice and less likely to lead to serious breaches of the peace to leave a purchaser to a suit for partition than to place him by force in joint possession with members of a Hindu family which may be not only of a different caste from his own but also different in race and religion. 69. Lal Behari Samanta v. Gourhari Dawn, AIR 1952 Cal 253. 70. The term undivided is not restricted to only the Hindu families but applies to Muslim families as well, see Sultan Begum v. Deviprasad, 30 All 327 FB and also includes any group of persons related to each other by blood who live in one house under one head and are undivided qua the house they own; see Pakhija Bibi v. Adhar Chandra, AIR 1929 Cal 231; Kshirode Chunder v. Saroda Prosad, (1911) 12 Cal LJ 525; Nilkamal v. Kmakshya, AIR 1928 Cal 539; Pran Kishan v. Surath Chandra, (1918) ILR 45 Cal 873. 71. Pakhija Bibi v. Adhar Chandra, AIR 1929 Cal 231. 72. SS Subramania Sastri v. Shaikh Ghannu, AIR 1935 Mad 628 [LNIND 1934 MAD 331]. 73. Janaki Ammal v. PAK Natarajan, AIR 1989 Mad 88 [LNIND 1987 MAD 237]; Bhagirath v. Afag Rasul, AIR 1952 All 207 [LNIND 1951 ALL 199]; Ramanath Chettiar v. Nataraja Chettiar, (1955) 1 Mad LJ 118. 74. Janaki Ammal v. PAK Natarajan, AIR 1989 Mad 88 [LNIND 1987 MAD 237]. 75. Nirupma Basak v. Baidyanath Paramanik, AIR 1985 Cal 406 [LNIND 1984 CAL 356]. 76. Bhim Singh v. Ratnakar, AIR 1971 Ori 198 [LNIND 1970 ORI 70]. 77. Where the house does not belong to the joint family this principle does not apply; see Ram Bilas Tiwari v. Shiv Rani, AIR 1977 All 437. 78. Sultan Begum v. Devi Prasad, 30 All 327 FB; Girijakanta v. Mohim, 20 Cal WN 675; Lalbehari v. Gourhari, AIR 1952 Cal 253; Paresh Nath v. Kamall Krishna, AIR 1958 Cal 614 [LNIND 1957 CAL 140]; Uma Shankar v. Dhaneshwari, AIR 1958 Pat 550; Lal Bihari Samanta v. Gauri Charan, AIR 1952 Cal 253. 79. Dorab Cowasiji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 [LNIND 1990 SC 77]; Uday Nath Sahu v. Ratnakar, AIR 1967 Ori 139 [LNIND 1967 ORI 1]; Ashim Ranjan Das v. Bimla Ghose, AIR 1992 Cal 44 [LNIND 1991 CAL 82]. 80. The above principle applies where transfer is for consideration and therefore does not apply to gifts, Arakal v. Domingo, (1911) 34 Mad 80. 81. CV Ramaswami Naidu v. CS Shyamala Devi, (1978) 1 Mad LJ 505, wherein it was held that an intention to the contrary would negate the application of this rule. 82. See The Transfer of Property Act, 1882, s. 45; see Parshottam v. Janki, 4 All LJ 257, wherein it was held that the property acquired by three brothers out of common fund would be held by them in proportion of their interest in the common fund. 83. The principle stated herein helps to determine the quantum of the interest of co-purchasers and its determination, see Guruswami Asari v. Raju Asari, AIR 1973 Mad 473 [LNIND 1973 MAD 10]. 84. Pertab v. Nihal Singh, AIR 1926 All 676. 85. Hari Singh v. Madan Lal, AIR 2001 Del 231 [LNIND 2001 DEL 91]. 86. Mangal Singh v. Harkesh, AIR 1958 All 42.

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(IN) Poonam Pradhan Saxena : Property Law 87. Where a person can produce evidence of the amount of his share but fails to do so he cannot avail himself of the presumption of equality, see Ram Pher v. Ajudhia Singh, AIR 1925 Oudh 369. 88. Shokhi v. Gaibi, 107 IC 149; Abdullah v. Ahmad, AIR 1929 All 817; Nankoo v. Ahmad Ali, AIR 1946 Lah 399 FB. 89. Durlabhji D Patel v. Competent Authority and Deputy Collector Surat, AIR 1996 Guj 197 [LNIND 2007 GUJ 244]. 90. Devraj v. Ghanshyam, AIR 1979 Ori 162. 91. Mohan Lal v. Board of Revenue, AIR 1982 All 273. 92. Debi Prasad v. Aklio, (1899) 4 Cal WN 465. 93. Mahomad Jusali v. Fatima Bai, AIR 1929 Bom 33. The principle of joint tenancy appears to be unknown to Hindu law except in case of coparcenary between members of the joint family, see Jogeshwar Narain v. Ram Charan Dutt, (1896) 23 Cal 670, PC. 94. Yethirajaulu v. Mukuntha, (1905) ILR 28 Mad 303; Narpad Singh v. Muhamad Ali, (1884) 11 Cal 1 (PC). 95. Bhai Diwali v. Patel Bichardas, (1902) ILR 26 Bom 445; see also the case of two widows; Kishori Dubain v. Mundra Dubain, (1911) ILR 33 All 665; Ram Piari v. Krishna, AIR 1921 All 50; Jankiram v. Nagamony, AIR 1926 Mad 273 [LNIND 1925 MAD 162]. 1.

A tenant for life and a remainder man; a mortgagee and a mortgagor; and a lessee and a lessor have distinct interests; see Morrs v. Debenham, (1876) 2 Chd 540.

2.

Mir Ali Newaz v. Mir Ali Ashar, AIR 1927 Sau 62; For the rights and obligations of the co-owners see Sant Ram v. Daya Ram, AIR 1961 Punj 528.

3.

Sobhag Chand v. Bhaichand, (1882) ILR 6 Bom 193.

4.

Where both the mortgages are usufructuary mortgages, the earlier mortgage only gets the possession; see Sukhdeo Misra v. Sheodial, (1901) All WN 52.

5.

Kanti Ram v. Kutubuddin, (1895) ILR 22 Cal 33.

6.

Bisseswar Poddar v. Nabadwib Chandra, AIR 1961 Cal 300 [LNIND 1960 CAL 133]. See also Dayal v. Jivraj, (1877) ILR 1 Bom 237, wherein it was held that a registered mortgage would have priority over an oral equitable mortgage.

7.

Chhagan Lal v. Chunni Lal, AIR 1934 Bom 189.

8.

Cheta Bahira v. Purna Chandra, (1915) 19 Cal WN 1272.

9.

Harnandun Singh v. Jawad Ali, (1900) ILR 27 Cal 468; Hathi Singh v. Kuvarji, (1886) ILR 10 Bom 105.

10. Girdhari Lal v. Dhirendre, (1906) 34 Cal 427; see also Hari Mohan v. Girish Chandra, (1877) 1 Cal LJ 152. 11. Girdhari Lal v. Dhirendra, (1906) 34 Cal 427; see however Baldeo v. Miller, (1903) 31 Cal 667; Moran v. Mitter Bibee, (1877) ILR 2 Cal 58, wherein priority was claimed for the advance claimed for the purposes of carrying on an indigo factory, and Hari Mohan v. Girish Chandra, (1877) 1 Cal LJ 152, where advance made by a mortgagee to enable the mortgagor to pay the rent of the premises mortgaged. In both cases claim of reversal of priority was rejected. 12. Herumbo Nath v. Satish Chandra, (1906) ILR 33 Cal 1175. 13. Girdhari Lal v. Dhirendra, (1906) 34 Cal 427. 14. See the s. 50 according to which a subsequent registered transfer takes priority over an earlier unregistered transfer, registration of which is optional; see also the, s. 98 according to which a pervious mortgage by a co-owner of his share is subject to a subsequent charge created by the a manager over the whole estate; see Amarchunder Kundu v. Sohi Bhusan Ray, (1904) ILR 31 Cal 305. 15. Hathisingh v. Kuvarji, (1886) ILR 10 Bom 105; Harnandn Singh v. Javed Ali, (1900) ILR 27 Cal 468. 16. Ishri Prasad v. Gopi Nath, (1912) ILR 34 All 631; Sobhagchand v. Bhaichand, (1882) ILR 6 Bom 193. 17. A contract to purchase confers upon the purchaser an insurable interest, see Gnana Sundaram v. Vulcan Insurance Co., AIR 1931 Rang 210. 18. The purchaser himself cannot claim the insurance money form the insurance company, see Kaveriamma v. Lingappa, (1909) ILR 33 Bom 96; Chatri Bahadur Singh, (1888) All WN 45. 19. See The Transfer of Property Act, 1882, s. 108(e). 20. Kiran Chandra v. Dutt, AIR 1925 Cal 251; Tiloke Chandra Surana v. JB Beatie, AIR 1926 Cal 204, see also Kaveriamma v. Lingappa, (1909) ILR 33 Bom 96; Chatri v. Bahadur Singh, (1888) All WN 45. 21. Alimuddin v. Hiralal, (1896) 23 Cal 87. 22. Toon Chan v. PC Sen, 24 IC 693.

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(IN) Poonam Pradhan Saxena : Property Law 23. Kanta Bhat v. Chotey Lal, AIR 1960 Raj 19; Rameshwar Lal v. Butto Kristo Rai, (1934) 13 Pat 396; Pale Zabaing Rural Cooperative Society v. Maung Thu Daw, AIR 1931 Rang 292; Official Assignee v. Abdul Hussein, AIR 1928 Sau 95; Tiloke Chandra Sorana v. JB Beatie, AIR 1926 Cal 204. 24. Notice can be either actual or constructive notice, See notes under ch1; see also Lachman Das Bansilal Rathod v. Sumberlal Surajmal Gandhi, (1973) 75 Bom LR 678. 25. Puran lal v. Madhoji, (1913) 17 Cal LJ 372; Nabin v. Surendra, (1905) 7 Cal WN 454; Azim v. Pateshwari, AIR 1943 Oudh 105; Nabakumar v. Hosimuddin, 58 CWN 319. 26. Good faith is required at two places, one with regard to the payment and the other with respect to the title of the person to who the payment is made; see Sottulal v. Kritanta, 67 Cal LJ 527, 42 CWN 378. 27. Kaveriamma v. Lingappa, (1909) ILR 33 Bom 96. 28. Gambhiraya v. Sakharam, AIR 1927 Nag 237. 29. Sivaswami v. Subramania, AIR 1932 Mad 95 [LNIND 1931 MAD 162]. 30. See also Mense Profits and Improvements Act, 1855, s. 2; The rule enunciated here is much wider than under English law which requires that the person spending money supposes himself to be building on his own land and the real owner at that time knows that the land belonged to him, see Ramsden v. Dyson, (1865) 1 HL 129; Russell v. Watts, (1883) 25 Chd 559; However, under Indian law the mere belief of the person making improvements that he is absolutely entitled to the property is sufficient and he need not prove the knowledge on part of the real owner, see Shajahbuddin v. Vahidbuk, (1920) 14 SLR 12; KalyanDas v. Jan Bibi, AIR 1929 All 12, (1929) 51 All 454. 31. AIR 1927 Bom 611; see also Durgozi Row v. Fakeer Sahib, (1907) ILR 30 Mad 197; Chennapragada v. Secretary of State, AIR 1925 Mad 963 [LNIND 1924 MAD 423]. 32. Brijgopal Lumani v. Mothey Anja Ratna Rajkumar, AIR 2010 (NOC) 570 (AP). 33. See Emerald Valley Estate Ltd. v. State of Kerela, (2000) 3 KLT SN 16. 34. Mudhoo v. Juddooputty, (1869) 9 WR 115; Thakur Chunder v. Ramdhone, (1868) 6 WR 228; Ganga Din v. Jagat, (1914) 12 All LJ 1026; Secretary of State v. Dungappa, AIR 1929 Mad 921; LA Creet v. Firm Gangaraj-Gulraj, AIR 1937 Cal 129. 35. Musadee Mhamad v. Meerza Ally, (1854) 6 MIA 27; Sadashi v. Dhakubai, (1881) ILR 5 Bom 451; Murlidhar v. Parmanand, AIR 1932 Bom 190. 36. Durga Devi v. Beni Prasad, AIR 2008 (NOC) 1619 (HP); Lucy George v. Nagpur Roman Catholic Diocesan Corpn Pvt. Ltd., AIR 1986 MP 27 [LNIND 1984 MP 43]. 37. Nanjamma v. Nacharammal, (1907) 17 Mad LJ 622. 38. Chinakkal v. Chinnathambi, AIR 1934 Mad 703 [LNIND 1934 MAD 84]. 39. Natesa Thevan v. District Board of Tanjore, AIR 1926 Mad 921 [LNIND 1925 MAD 312]. 40. Narayana Rao v. Basarayappa, AIR 1956 SC 727; see also Kalyan Das v. Jan Bibi, AIR 1929 All 12, where the principle was applied even though there was no direct eviction and no better title. 41. Brijgopal Lumani v. Mothey Anja Ratna Rajkumar, AIR 2010 (NOC) 570 (AP); Topanmal v. Chanchalmal, AIR 1940 Sau 77. 42. Chennapragada v. Secretary of State, AIR 1925 Mad 963 [LNIND 1924 MAD 423]. 43. Ijjabba v. Ijjnabha, AIR 1964 Mys 24. 44. Nagendranath Dasse v. Punchanan Mourie, AIR 1934 Cal 290. See however Mahomad Naziruddin v. Govindarajalu, AIR 1971 Mad 44 [LNIND 1970 MAD 14], where a contrary view is taken by the court. 45. See Harilal Ranchhod v. Gordhan Keshav, AIR 1927 Bom 611. 46. Daya Ram v. Shyam Sundari, AIR 1965 SC 1049 [LNIND 1964 SC 221]; see Secretary of State v. Dungappa, AIR 1929 Mad 921 wherein it was observed, ‘One who has gone on a wrongful invasion of the plaintiffs right in real estate has no equity to set up against the plaintiffs claim to have the property restored to him as it was before the wrong was done, see also Ganga Din v. Jagat, AIR 1914 All 90; Jetha Lal v. Lal Bhai, (1904) ILR 28 Bom 298. 47. Krishna Prasad v. Adyanath Ghatak, AIR 1944 Pat 77; Abdul v. Nand Lal, AIR 1938 Nag 506; Dhairyawan v. JR Thakur, AIR 1958 SC 792; see also Gobind v. Gooroo Charan, 3 Suth WR 71, wherein it was held that a trespasser is at liberty to remove the bricks of his house. See also Mammunhi v. Kunhibi, AIR 1961 Ker 147. Where a trespasser in bona fide faith erects a building he can be asked to remove the material see Krishna Prasad v. Adyanath Ghatak, AIR 1944 Pat 77. ‘No one can by merely trespassing upon the land of another and constructing costly buildings upon it claim a right to retain its possession. He has no right to compel the plaintiff to receive compensation for his land instead of the land itself; see Ganga Din v. Jagat, AIR 1914 All 90. 48. Maddanappa v. Chandramma, AIR 1965 SC 1812 [LNIND 1965 SC 71].

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(IN) Poonam Pradhan Saxena : Property Law 49. Where there is no evidence that the plaintiff encouraged the defendant to trespass and incur expenditure he must be evicted see Arjun Lal Gupta v. Mriganka Mohan Sur, AIR 1975 SC 207. 50. Mahadeo v. Narayan, AIR 1927 Nag 348; Narayan v. Raja Lakshman, AIR 1927 Nag 400; Krishna v. Adyanath, AIR 1944 Pat 77. 51. Madanappa v. Chandramma, AIR 1956 SC 283; Lala Beni Ram v. Kundn Lal, (1899) ILR 21 All 496; RS Muthuswami v. A Annamalai, (1981) 1 Mad LJ 258; S Palanvelu v. K Veradammal, AIR 1977 Mad 342 [LNIND 1977 MAD 47]. 52. Bhupendra v. Pyari, (1907) 40 IC 464. 53. Pannalal v. Gokarna Das, (1949) All 757. 54. Santhankumar v. Indian Bank, AIR 1967 SC 1296 [LNIND 1967 SC 35]; Gopi Lal v. Abdul Hamid, AIR 1928 All 381; Bechu v. Bhabhuti Prasad, AIR 1931 All 201; Ramappa v. Yellappa, AIR 1928 Bom 140; Vribhukandas v. Dayaram, (1908) ILR 32 Bom 32; Parshar v. Ganu, (1903) 5 Bom LR 643. 55. The rule does not apply as between a landlord and a tenant, see Raja of Venkatagiri v. Mukku Narasaya, AIR 1914 Mad 564; Darbari v. Raneeganj Coal Assocn, AIR 1944 Pat 30; Madan Goapl v. Sundaram, AIR 1940 Rang 172; Bastocella v. Bandhu Beldar, AIR 1960 Pat 344; Gokulpathy v. KRV Sarma, AIR 1972 Mad 54 [LNIND 1971 MAD 122]; Nundo Kumar v. Banomali Gayan, (1902) ILR 29 Cal 871; Rajrup v. Gopi, AIR 1925 All 261; Naina Pillai v. Ramanathan, (1917) 33 Mad LJ 84; Buneshwar v. Lal Bahadur, 51 IC 380. 56. Pandarasannadhi v. Anantha Krishnaswami, AIR 1939 Mad 247 [LNIND 1938 MAD 397]; Perumal Gramani v. Mahomad Kasim, 28 IC 840; Venkatappier v. Ramaswami, (1919) Mad WN 548; Sidha Nath v. Har Narian, AIR 1937 Oudh 446. See also Subba Rao v. Veeranjaneyaswami, AIR 1930 Mad 298 [LNIND 1929 MAD 21]. 57. Sidha Nath v. Har Narain, AIR 1937 Oudh 446. 58. Pandulal v. G Daniel, AIR 1951 Ajm 16; Sidde Gowda v. Nadakala, AIR 1952 Mys 117. 59. Pandiyan v. Vellayappa, (1917) 33 Mad LJ 316. 60. Narayan Nanajee Gayadhani v. Ganesh Trimbak Gayadhani, AIR 1926 Bom 599. 61. Mussamat Ram Kaur v. Pratab Singh, (1919) PR 58; Ludha Mal v. Jagan Nath, (1888) PR 123. 62. Chennapagada v. Secretary of State, AIR 1925 Mad 963 [LNIND 1924 MAD 423]. Good faith required here does not mean more than an honest belief in the validity of the title; Even negligent belief will amount to honest belief, see Narayana Aiyar v. Shankaranarayana Aiyar, 24 IC 940. Honest belief is not compatible with negligence or with a mistake of law, see Nanjappa v. Peruma, (1909) Mad 530 ; 4 IC; Rama Aiyar v. Narayanaswami Aiyar, AIR 1926 Mad 609 [LNIND 1925 MAD 446]; Shahabuddin v. Wahid Bux, (1920) 14 SLR 12; Harilal Ranchhod v. Gordhan Keshav, AIR 1927 Bom 611. 63. Durga Devi v. Beni Prasad, AIR 2008 (NOC) 1619 (HP); Emerald Valley Estate Ltd. v. State of Kerala, (2000) 3 Ker LT 16. 64. Govardhan v. Mukharai, AIR 1949 Nag 465. 65. Nannu v. Ramchunder, AIR 1931 All 277 FB. 66. Ponnia Pillai v. Pannai, AIR 1947 Mad 282 [LNIND 1946 MAD 201]. 67. State of Jammu & Kashmir v. Ghulam Rasool, (1978) Kash LJ 260. 68. Raman Ittiyathiv Pappy Bhaskaran, AIR 1990 Ker 112; Veluswami v. Bommachi, (1913) 25 Mad LJ 324. 69. Vasanthamma v. Siddaverrappa, AIR 2011 Kar 54. 70. Ramaji v. Manohar, AIR 1961 Bom 169 [LNIND 1959 BOM 127]; Haradhan v. Bhagabati, (1914) ILR 41 Cal 852. 71. Davaramani v. Pudda Bhinaka, (1915) Mad WN 148. 72. Onkar Mal v. Secretary of State, (1920) 56 IC 813; see also Harnaman v. Dasondi, (1920) 1 Lah 210. 73. Lalta Prasad v. Bramhanand, AIR 1950 All 449 [LNIND 1950 ALL 15]. 74. Kidarnath v. Mathumal, (1913) 40 Cal 555 PC. 75. Bimal Chandra Nath v. Manmatha Nath, AIR 1954 Cal 345 [LNIND 1954 CAL 28]; Meenatchi v. Manicka, 24 IC 918. 76. Sidramappa v. Sidappa, AIR 1929 Rang 230. 77. Mariappa Thevar v. Kaliammal, AIR 1971 Mad 198 [LNIND 1970 MAD 267]; Sudala Muthu v. Sankara, 24 IC 879. 78. Lachmiprosad v. Lachminarayan, AIR 1928 All 41. 79. Kasim v. Ratnamanika, AIR 1938 Mad 677; Durgozi v. Fakir Sahib, (1907) ILR 30 Mad 197, a case of guardian appointed under Muslim law; Harilal Ranchhod v. Gordhan Keshav, AIR 1927 Bom 611. 80. Mahadeo v. Rameshwar, AIR 1968 Bom 323 [LNIND 1967 BOM 47].

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(IN) Poonam Pradhan Saxena : Property Law 81. Dhanna Das v. Amulyadhan, (1906) 33 All 1119. 82. Prior to the passing of the Hindu Succession Act, 1956. 83. Meenatchi v. Manicka, 24 IC 918. 84. American Baptist Mission v. Amalanadhuni, 48 IC 859; Gangadhar v. Rachappa, AIR 1929 Bom 246. 85. Panachand v. Manohar Lal, (1917) 42 Bom 136. 86. Narayan v. Basavarappa, AIR 1956 SC 727; Kedarnath v. Mathumal, 40 Cal 555 PC. 87. Narayan v. Ganesh, 28 Bom LR 993; Nagaratanama v. Ramayya, AIR 1963 Andh Pra 177. 88. Narayana Rao v. Basarayappa, AIR 1956 SC 727. 89. Kidar Nath v. Mathmal, (1913) ILR 40 Cal 555; Kunhi v. Kunkan, (1896) ILR 19 Mad 384; Gangadhar v. Rachappa, AIR 1929 Bom 246. 90. Shripati Raoji v. Vishwanath, AIR 1955 Bom 457. 91. Brijgopal Lumani v. Mothey Anja Ratna Rajkumar, AIR 2010 (NOC) 570 (AP). 1.

The transferee has a right to carry away the crops after eviction, see Deo Dai v. Ram Autar, (1886) ILR 8 All 502. This is in contrast to the ordinary rule that the right to the growing crops pass with the sale of the land and when a mortgagee in possession brings the land to sale, he cannot recover the value of the crops he has grown from the purchaser, see Ramalinga v. Samiappa, (1890) ILR 13 Mad 15.

2.

Kachhi Properties, Satara v. Ganpatrao Shankarao Kadam, AIR 2011 (NOC) 185 (Bom).

3.

Quoted in Govinda Pillai Gopala Pillai v. Aiyyappan Krishnan, AIR 1975 Ker 10.

4.

Amit Kumar Shah v. Farida Khatoon, AIR 2005 SC 2209; (2005) 11 SCC 403; Bellamy v. Sabine, (1857) 1 De G & J 566, 578.

5.

Lov Raj Kumar v. Daya Shanker, AIR 1986 Del 364 [LNIND 1985 DEL 374].

6.

Bellamy v. Sabine, (1857) 1 De G & J 566, 584.

7.

Sunder Lal Bhatia v. Charan Lal Bhatia, AIR 2010 J&K 16 at 18.

8.

Praveen Kumar v. Baljinder Kaur, AIR 2010 P&H 40; Usha Sinha v. Dina Ram, AIR 2008 SC 1997 [LNIND 2008 SC 704]; (2008) 7 SCC 144 [LNIND 2008 SC 704]..

9.

Quoted in Govinda Pillai v. Aiyyapan, AIR 1957 Ker 10 [LNIND 1956 KER 120], para 6; see also Bhup Narain v. Nawab Singh, AIR 1957 Pat 729; see also Basappa v. Bhimangowda, AIR 1928 Bom 65.

10. Act 4 of 1939; see also Kachhi Properties, Satara v. Ganpatrao Shankarao Kadam, AIR 2011 (NOC) 185 (Bom). 11. For necessary ingredients for the application of the doctrine, see Hiranyabhusan v. Gouri Dutt, AIR 1943 Cal 227. 12. See The Transfer of Property Act, 1882, s. 52Explanation which provides that the pendency of the suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction and to continue until the suit or proceedings has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. 13. Gobind Chunder v. Gurchuran, (1888) ILR 15 Cal 94. 14. Dinonath v. Shamabibi, (1900) 28 Cal 23; Surji v. Bharamadeo, 2 Cal LJ 288; Harprasad v. Dalmardan, (1905) 32 Cal 891; Mahadeo v. Thakurpersad, 14 Cal WN 677; Seethappa v. Muthia, (1908) ILR 31 Mad 268; Motichand v. British India Co. Ltd., AIR 1932 All 210; Pattumadammal v. Nanjappa, AIR 1939 Mad 275 [LNIND 1938 MAD 384]; Jogarao v. Chinnaya, AIR 1936 Mad 853 [LNIND 1936 MAD 78]; Ambika Pratap v. Dwarka Prasad, (1908) ILR 30 All 95; Bimala Bala Devi v. Sanat Kumar Chaudhary, (1960–61) 65 Cal WN 701. 15. Krishnappa v. Shivappa, 9 Bom LR 530, (1907) 31 Bom 393; Sahandrabai v. Shri Deo Radha Ballabhji, AIR 1938 Nag 30. 16. BB Rangaswami v. Upparaje Gowda, AIR 1962 Mys 189. 17. Wali Bandi v. Tabeya Bibi, (1919) ILR 41 All 534. 18. Nallakumara v. Pappayi, AIR 1945 Mad 219. 19. Mohendra Nath v. Parameswar, 60 IC 439. 20. Shivshankarappa v. Shivappa, AIR 1943 Bom 27. 21. Ambika Pratap v. Dwarka Prasad, (1908) 30 All 95; Pattumadammal v. Nanjappa, AIR 1939 Mad 275 [LNIND 1938 MAD 384]. 22. Sahaudrabai v. Shri Deo, AIR 1938 Nag 30.

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(IN) Poonam Pradhan Saxena : Property Law 23. Nagubai v. Sham Rao, AIR 1956 SC 593 [LNIND 1956 SC 38]. 24. Ashutosh v. Ananath, 50 IC 727. 25. Madhoram v. Kirtyanand, AIR 1944 PC 99. 26. AIR 1985 All 163 [LNIND 1984 ALL 243]. 27. Purshottam v. Bai Moti, AIR 1963 Guj 30 [LNIND 1962 GUJ 139]; Hakim Mohamad v. Sahib Collector Bahadur, AIR 1958 All 24 [LNIND 1957 ALL 70]; Narain Lakshman v. Vishnu Waman, AIR 1957 Bom 117 [LNIND 1956 BOM 158]; Mohamad Hanif v. Khairatasli, AIR 1941 Pat 577. 28. Ghantsher Ghose v. Madna Mohan Ghose, AIR 1997 SC 471 [LNIND 1996 SC 1485]. 29. Krishnaji Pandharinath v. Anusayabai, AIR 1959 Bom 475 [LNIND 1958 BOM 46]; Moti Chand v. British India Corpn., AIR 1932 All 210; Dinonath v. Shamabibi, (1900) 28 Cal 23; Settappa v. Muthia, (1908) ILR 31 Mad 268. 30. Radhika v. Radhamani, (1884) ILR 7 Mad 96. 31. Ammayi v. C Sitaramayya, AIR 1925 Mad 1039 [LNIND 1924 MAD 376]; Braja Naht v. Jogesswar, (1909) 9 Cal LJ 346; Surji Ram v. Barhamdeo Persad, (1905) 2 Cal LJ 202; Chunni Lal v. Abdul Ali, (1901) ILR 23 All 331. 32. Bepin Krishna v. Priya Brata, AIR 1921 Cal 730; Ramaswami v. Govinda, (1916) 31 Mad LJ 839. 33. Sami Nath Singh v. Thakur Prasad Rai, AIR 1927 All 309; Mirza Abid v. Munnu Bibi, AIR 1927 Oudh 261; Lachiram v. Bholu, AIR 1925 Nag 132; Brojo Kishoree v. Meajan Biswas, (1908) 13 Cal WN 1138; Samal v. Babaji (1904) ILR 28 Bom 361; Har Shanker v. Sheo Govind, (1899) ILR 26 Cal 966. 34. Supreme General Films Exchange Ltd. v. Brij Nath Singh Deo, AIR 1975 SC 1810 [LNIND 1975 SC 250]; Ram Rup v. Special Manager Court of Wards Balrampur Estate, AIR 1934 Oudh 55; Nisar Hussain v. Sunder Lal, AIR 1927 All 657; Magan Lal v. Lakhi Ram, AIR 1968 Guj 193 [LNIND 1967 GUJ 85]; Ramasami v. Govinda, (1916) 31 Mad LJ 839; Madan Mohan v. Raj Kishori, (1917) 21 Cal WN 88; Thakur Prasad v. Gaya, (1898) ILR 20 All 349. 35. Wazir Hussain v. Beni Madho, AIR 1930 Oudh 362; Nagendra v. Sarat Kamini, AIR 1922 Cal 235. 36. Parsotam v. Chedda Lal, (1907) ILR 29 All 76. 37. Amrit Lal Jain v. Haryana Urban Development Authority, AIR 1999 P&H 300. 38.

AIR 1996 P&H 158.

39. Bhagwan Das v. Kashi Ram, AIR 1914 Lah 356. 40. Kasturi Devi v. Harbant Singh, AIR 2000 P&H 271; Harbaksh Singh v. Ram Rattan, AIR 1988 P&H 60. 41. Ramanamma v. Anthamma, AIR 1955 Andh Pra 199. 42. Sumitra Devi v. Sita Sharan Bulna, AIR 2009 Pat 83 [LNINDORD 2009 PAT 3284]. 43. Madho Singh v. Skinner, 197 IC 227; Kanta Prasad v. Ram Jag, (1914) ILR 36 All 60; Ghasitey v. Gobind, (1908) ILR 30 All 467. 44. P Lakshmi Ammal v. S. Lakshmi Ammal, AIR 1991 Mad 137 [LNIND 1990 MAD 273]; Vraj Kumar v. Kunjbiharilal, AIR 1971 MP 109 [LNIND 1970 MP 87]; Pancham v. Kandhai, AIR 1934 All 713; Gauri Dutt v. Sheikh Surur, AIR 1948 PC 147; Jahar Lal Bhutra v. Bhupendra Nath, AIR 1922 Cal 412; Vedachari v. Narasinha, AIR 1924 Bom 467. 45. Chetak Electrical and Iron industries v. Rajasthan Finance Corpn., AIR 1998 Raj 42; Goudappa Appoya Paitl v. Shivari Bhimappu Pattur, AIR 1992 Kant 71 [LNIND 1990 KANT 241]. 46. Nagappa Chetty v. Maung Po Gwe, 12 IC 849. 47. Velayudu Mudali v. Co-operative Rural Credit Society, AIR 1934 Mad 40. 48. Nata Padan v. Banchha Baral, AIR 1968 Ori 36 [LNIND 1967 ORI 18]. 49. Jaglal Rai v. Makhna Kuar, (1888) All WN 246. 50. Digambarrao v. Rangarao, AIR 1949 Bom 367. 51. Lalitha Kariappa v. Sanjeevi, AIR 2006 Kant 25 [LNIND 2005 KANT 460]. 52. Nilkanta v. Suresh, (1886) ILR 12 Cal 414; Sarat v. Chinta, AIR 1948 Pat 111; Krishna v. Ouseph, AIR 1952 TC 102; Muhamad v. Ram, AIR 1952 Oudh 64; Radha Madhab v. Manohar, 15 Cal 756; Ramdayal v. Karrvuddin, 25 Cal LJ 147. 53. Rajkrishna v. Radhamohun, 21 WR 349. 54. Tinnoodhan v. Trailokha, (1912) 17 Cal WN; Nobokirshna v. Mohitkali, 9 IC 840; Renuka v. Nagendra, AIR 1943 Nag 101; Hakim v. Sahab Collector, AIR 1958 All 24 [LNIND 1957 ALL 70]; T Bhupnarain v. Nawabsingh, AIR 1957 Pat 729; Samarendra v. Krishna, AIR 1967 SC 1440 [LNIND 1966 SC 283].

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(IN) Poonam Pradhan Saxena : Property Law 55. See Sham Lal v. Sohan Lal, AIR 1928 All 1. 56. Harshanker Shew v. Gobinda, (1899) ILR 26 Cal 966; see however, Abdul Rauj v. NS Chettyar Firm, AIR 1929 Rang 175, wherein it was held that it would be dangerous extension of the doctrine to hold that neither the government nor any local body could recover taxes or rates from a defaulter so long as a law suit is pending between the defaulter and some of his creditors. See also Korlapati v. Medida, AIR 1926 Mad 1161 [LNIND 1926 MAD 204], where the Madras High court created a distinction between a revenue sale for arrears of revenue and a sale for realising the Abkari dues, or forest dues or other dues of land revenue, and has applied the doctrine to the latter class of cases and not the former, for under the Revenue Recovery Act, land revenue is the first charge on the property and any sale for arrears of land revenue could convey a good title to the purchaser free of all encumbrances on the land. 57. Kader v. Muthukrishna, (1903) ILR 26 Mad 230. 58. Maulbax v. Sardarmal, AIR 1952 Nag 341. 59. Ragho Prasad v. Mewa Lal, (1912) ILR 34 All 223. 60. To a sale under the Criminal Procedure Code, 1973, s. 88; see Narayan v. Gobindakrishna, AIR 1929 Bom 200 : (1929) 31 Bom LR 345. 61. Mahadeo v. Thakur Prasad, (1909) 14 Cal WN 677. 62. Periamurugappa v. Manicka, AIR 1926 Mad 50 [LNIND 1924 MAD 330]; Nuzbat-ud-Daula v. Dilbag Begum, (1913) 16 OC 225. 63. Shafiqullah v. Samiullah, AIR 1929 All 943; Nanjammal v. Eswaramurthi, AIR 1954 Mad 592 [LNIND 1953 MAD 203]; Ram Narain v. Nawab Sajaddali Khan, AIR 1946 Oudh 99. 64. Ramachandraguru v. Kamalabai, AIR 1944 Bom 191; Rajagopal v. Kesva, AIR 1945 Mad 126 [LNIND 1944 MAD 226]. 65. Nathu Ram v. Ram, AIR 1946 Bom 462; Venketeshwar v. Kunja, AIR 1952 TC 309; Bhagirathi v. Raj Kishore, AIR 1930 All 354; Krishnappa v. Shivappa, (1907) ILR 31 Bom 393; Durga Prashad v. Madho Prasad, (1908) 8 Cal LJ 53; Ram Bharose v. Ram Pal Singh, (1920) ILR 42 All 319. 66. Braja v. Meajan, 13 Cal WN 1138; Krishnappa v. Shivappa, (1907) ILR 31 Bom 393; Rambhrose v. Rampal, AIR 1920 All 246. 67. Juthan v. Parasnath, AIR 1934 Pat 270; Earannama v. Nathu Gowda, AIR 1952 Mys 26. 68. Annamalai v. Mayayandi, (1906) ILR 29 Mad 426; Bharat v. Srinath, AIR 1922 Cal 358; Ramdualri v. Upendranath, AIR 1925 Pat 462; Hiranya v. Gouri, AIR 1943 Cal 277. 69. Subramaiam Chetty v. Mohan Ali, 52 IC 624. 70. Annammal v. Chellakutti, AIR 1963 Mad 300 [LNIND 1962 MAD 155]; Gouri Dutt v. Sulur Mohamad, AIR 1948 PC 147. 71. Gouri Dutt v. Sheikh Sukur Mohamad, AIR 1948 PC 147. 72. Nagbai Ammal v. B Sahma Rao, AIR 1956 SC 593 [LNIND 1956 SC 38]; Bharat Ramanuj v. Srinath Chandra, AIR 1922 Cal 358. 73. Nuzbat-ud-Daula v. Dilbag Begum, 16 OC 225. 74. Faiyaz Husian Khan v. Pragnarian, (1907) ILR 29 All 339 PC; Bishan Singh v. Khazan Singh, AIR 1958 SC 842. 75. See Maharaj v. Shaikh Abdul, AIR 1922 Pat 394; Achut Sitaram v. Shivajirao, AIR 1937 Bom 244. 76. Nathu Singh v. Anand Rao, AIR 1940 Nag 185; Kurusingha v. Narasingha, AIR 1938 Bom 121. 77. Kiernander v. Benimadhub, AIR 1931 Cal 763. 78. Palani v. Subramanya, (1896) ILR 19 Mad 257. 79. Sivaramakrishna v. K Mammu, AIR 1957 Mad 214 [LNIND 1956 MAD 18]. 80. Bowles v. Bowles, (1884) ILR 8 Bom 571. 81. Anundo Moyee v. Dhonendro Chunder, (1872) 14 Mad IA 101. 82. Bisonath v. Radha Kristo, (1869) 11 WR 554. 83. Govinda Pillai v. Aiyyappan Krishnan, AIR 1957 Ker 10 [LNIND 1956 KER 120]. 84. Velayudu v. Cooperative Rural Society, AIR 1934 Mad 40. 85. Jairam v. Maifujali, (1948) Nag 324. 86. AIR 1933 All 649, 651. 87. Govinda Pillai v. Aiyyappan Krishnan, AIR 1957 Ker 10 [LNIND 1956 KER 120]. 88. AIR 1927 Rang 145.

Page 139 of 151

(IN) Poonam Pradhan Saxena : Property Law 89. The plaint was presented in the proper court after seven days of the order. A day before the plaint was presented in the proper court, A executed a conveyance of the land and the question before the court was, whether this conveyance was vitiated by the rule of lis pendens. This case was decided under the law before the amendment to s. 52, where what was required by the parties to prove was ‘active prosecution of the case; and not pendency of litigation. The court held that the party was actively prosecuting the case and therefore, the transfer was hit by the doctrine of lis pendens. 90. AIR 1940 Nag 185. 1.

K Shidilingappa v. P Shankappa, AIR 1946 Bom 207.

2.

Khaja Bi v. Mohamad Hussain, AIR 1964 Mys 269.

3.

Jaharlal v. Bhupendra, (1922) 49 Cal 495; Bhaskar v. Sankar, AIR 1924 Bom 467; Vedachari v. Narasingha, AIR 1924 Mad 307 [LNIND 1923 MAD 244]; Matilal v. Preolal, 13 Cal WN 226.

4.

Ramshankor v. Nanikprosad, 17 OC 150; Bhagwan v. Nanak, AIR 1927 All 336; Madha Singh v.J Skinner, AIR 1941 Lah 433 FB.

5.

Radhey Lal v. Ram Lal, AIR 1935 Oudh 49.

6.

Supreme General Films Exchange Ltd. v. Brijnath Singh Deo, AIR 1975 SC 1810 [LNIND 1975 SC 250]; Surya Kumar v. Girish Chandra, AIR 1951 Assam 101.

7.

Ramanamma v. Anthamma, AIR 1955 Andh Pra 199.

8.

Nagubai v. Shama Rao, AIR 1956 SC 593 [LNIND 1956 SC 38].

9.

Kallawav Parappa Sankappa, AIR 1946 Bom 207; Digambarrao v. Rangarao, AIR 1949 Bom 367.

10. Sudhamoyeev v. Jessore Loan Co. Ltd., AIR 1945 Cal 322. 11. Harbaksh Singh Gill v. Ram Rattan, AIR 1988 P&H 60. 12. Manika v. Ellappa, 19 Mad 271; Mohideen Sahib v. C Nagu Bai, AIR 1939 Mad 403; Kesseemunissa v. Nilratna, (1881) 8 Cal 79; Dosethimanna v. Krishna, (1906) 29 Mad 508. 13. Nidamanuri v. Ramalakshmi, AIR 1971 Mad 371 [LNIND 1970 MAD 81]. See however, for a contrary opinion, Offical Receiver v. Kabir, AIR 1927 Mad 403. 14. Laxman v. Ramchandra, AIR 1932 Bom 301; Abdul Gafoor v. Ishqali, AIR 1943 Oudh 354. 15. Derpal v. Karam Chand, AIR 1952 Pat 9; Udhay Narayan v. Radheshyam, AIR 1950 Ori 210 [LNIND 1950 ORI 34]; Sheolal v. Balkrishan, (1948) Nag 573; Dhirendra Nath v. Charu Sashi, AIR 1926 Cal 191; Jaynet Abidin v. Hyderali Khan, AIR 1928 Cal 441; Sheikh Bikala v. Sheikh Ali, AIR 1950 Ori 210 [LNIND 1950 ORI 34]. 16. Govind Baba v. Jijibai, (1912) ILR 36 Bom 189. 17. Syed Tanyal v. Hyderali, AIR 1928 Cal 441. 18. Ma Kin v. Ma Bwin, AIR 1927 Rang 186; Bepin v. Byomkesh, AIR 1925 Cal 395; see Chuuterput v. Maharaj Bahadur, 32 IA 1; Puranchand v. Monmotho, AIR 1928 PC 38. 19. Kasumunnissa v. Nilratna, (1881) 8 Cal 79. 20. Sheikh Khan v. Festoinji, 1 Cal WN 62; Jogendra v. Fulkumari, AIR 1938 Mad 632. 21. Lokenath v. Achitanand, 15 Cal LJ 391; Kedarnath v. Sheonarian, AIR 1957 Pat 408. 22. Amarnath v. Deputy Director Consolidation Kanpur, AIR 1985 All 163 [LNIND 1984 ALL 243]. 23. Achut Sitaram v. Shivajirao, AIR 1937 Bom 252; Periamurugappa v. Manicka, AIR 1926 Mad 50 [LNIND 1924 MAD 330]. 24. Rangaswamy v. U Gowda, AIR 1962 Mys 189. 25. See Transfer of Property Act, 1882, s. 52. 26. Josna Bank v. Asian Bank Ltd., AIR 1962 Ker 309 [LNIND 1962 KER 78]; however see, Talraj v. Vishvanatham, 16 MLT 158, wherein the doctrine was applied in case of movable property. See also Official Receiver v. Lalchand, AIR 1943 Mad 94; Avalath Kunhikoya Thangal v. Dappoyil Ahmad Kutty, AIR 1952 Mad 59 [LNIND 1951 MAD 354]. 27. Avalath Kunhikoya Thangal v. Dappoyil Ahmad Kutty, AIR 1952 Mad 59 [LNIND 1951 MAD 354]. 28. Govind Baba v. Jijibai, (1912) 36 Bom 189; Taleri v. Vishvanathan, (1915) 16 Mad LT 158. 29. Gurnail Singh v. Udham Kaur, AIR 1999 P&H 300. 30. Madan v. Rajkishori, 21 Cal WN 88; Motilal v. Ganpati, AIR 1924 Nag 211; Kiran v. Dutta, 29 Cal WN 94. 31. Ramdas v. Fakira, AIR 1959 Bom 19 [LNIND 1956 BOM 138]; Magan Lal v. Lakhiram, AIR 1968 Guj 193 [LNIND 1967 GUJ 85].

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(IN) Poonam Pradhan Saxena : Property Law 32. AMK Mariam Bibi v. MA Abdul Rahim, AIR 2000 NOC 21 (Mad). 33. Gorachand v. Makhanlal, 11 Cal WN 489; Sripat v. Naresh, AIR 1926 Pat 94. 34. Faiz Husain Khan v. Prayag Narian, (1907) ILR 29 All 339; Shib Chandra v. Lachmi Narian, AIR 1929 PC 243; Parvati Ammal v. Govinda Raja, AIR 1924 Mad 359; Sital Prasad v. Mohamad Maranwatyar Khan, AIR 1934 All 972; Radhey Lal v. Ram Lal, AIR 1935 Oudh 49. 35. Nisar Hussai v. Sunder Lal, AIR 1927 All 657; Nageshwari Tewari v. Gudar Singh, AIR 1927 Oudh 603; Madan Mohan v. Raj Kishori, (1917) 21 Cal WN 88 ; see also Subbaraju v. Seetharamaraju, (1916) ILR 39 Mad 283; Ram Dayal v. Asghur, AIR 1930 All 289, wherein it was held that yearly leases by a mortgagor in possession are not within the rule of lis pendens as they are not prejudicial to the security of the mortgagee. 36. Mangru v. Tarakeshwar Nath, AIR 1967 SC 1390 [LNIND 1967 SC 65]. A lessor can still be evicted if the local laws provide so see Aziz Fatima v. Mukund Lal, Atyj[uoIR 1932 All 480, wherein it was held that as per the provisions of the Agra Tenancy Act, 1926 such a tenant can be evicted. 37. Ram Charan v. Parmeshwar Din, AIR 1933 All 201. 38. Chinnaswami v. Durmalinga, AIR 1932 Mad 566 [LNIND 1932 MAD 81]; Rusool Saheb v. Hameda Bibi, AIR 1950 Mad 189 [LNIND 1949 MAD 82]; Annapurna Dasse v. Sarat Chandra, AIR 1942 Cal 394; Suramma Nayrulu v. Surayya, AIR 1934 Mad 585 [LNIND 1934 MAD 134]. 39. Jagannath Mahaprabhu v. Parvat Chandra Chaterjee, AIR 1992 Ori 47 [LNIND 1991 ORI 129]; Lachminarain v. Koteswar, (1878) ILR 2 All 1826; Venkatarama v. Rangiyan, AIR 1924 Mad 449; Suramma Nayrulu v. Surayya, AIR 1934 Mad 585 [LNIND 1934 MAD 134]; Annapurna v. Sarat, AIR 1942 Cal 394; Rasool v. Hamida, AIR 1950 Mad 189 [LNIND 1949 MAD 82]; Mohamad Juman v. Akali Mudiani, AIR 1943 Cal 377; Gopalam v. Ratnamma, AIR 1915 Mad 805; Sheoratan v. Kanta Prasad, AIR 1932 Pat 270; Balaramchandra v. Daulu, AIR 1925 Bom 176. 40. Akki Guru v. Valuvathi, AIR 1925 Mad 39; Sadu Sahu v. Chandramoni, AIR 1948 Pat 60. 41. Renuka v. Nagendra, AIR 1939 Cal 655. 42. Bhag v. Ujagar Singh, AIR 1931 Lah 435; Bishan Singh v. Khazan Singh, AIR 1958 SC 838 [LNIND 1958 SC 77]. 43. Umesh Chunder v. Zahoor Fatima, (1891) ILR 18 Cal 164. 44. AIR 1975 SC 1810 [LNIND 1975 SC 250]. 45. Venkataramana v. Rangiah, AIR 1922 Mad 249 [LNIND 1921 MAD 90]; Veerakutty v. Ramaswami, 32 IC 31; Guru Rusappa v. Santhappa, AIR 1925 Mad 710 [LNIND 1924 MAD 420]; Sudana Devi v. Rajendra Singh, AIR 1973 Pat 199. 46. Narayana Pillai Chandrasekharan Nayar v. Kunju Amma Thankamma, AIR 1990 Ker 177 [LNIND 1989 KER 273]; Subbaya v. Yellamma, (1886) ILR 9 Mad 130. 47. Bishan Singh v. Khazan Singh, AIR 1958 SC 838 [LNIND 1958 SC 77]. 48. Hans Nath v. Ragho Prasad, AIR 1932 PC 57. 49. Durga Prasad v. Gangadin, AIR 1925 All 502; Bhiki Mal v. Debi Sahai, AIR 1926 All 179; Kehar Singh v. Jahangir, AIR 1925 All 487; Kedar Nath v. Bankey Bihari, 11 IC 645; Madho Singh v. Skinner, 43 PLR 587. 50. Sharief Hussain v. Nur Shah, AIR 1929 Lah 589; Wazirali v. Zaver Ahmed, AIR 1949 EP 193 FB; Malik Singh v. Shiam Lal, AIR 1929 All 440. 51. Bishan Singh v. Khazan Singh, AIR 1958 SC 838 [LNIND 1958 SC 77]; Mool Chand v. Ganga Jal, AIR 1930 Lah 356. See however, Bachan Singh v. Bijal Singh, AIR 1926 All 180, wherein the Allahabad High Court has held that where the right of preemption is equal the proper procedure is to divide the property equally. 52. Ramchand Lal Chand v. Khem Chand Lal Chand, AIR 1974 P&H 91. 53. Mahomad Sadiq v. Ghasi Ram, AIR 1946 Lah 322. 54. Ali Abdul Ghanmomin v. Bisahami, AIR 1973 Mys 131; Khaja Bibi v. Mohamad Hussein, AIR 1964 Mys 269 (FB); Munnilal v. Bhaiyalal, AIR 1962 MP 34 [LNIND 1960 MP 22](FB). 55. Baldeo Misi v. Ram Lagan, AIR 1924 All 82. 56. P rataprao Narayan Pawar v. Ramchandra Dalichand Sancheti, AIR 2008 (NOC)1412 (Bom). 57. Subramanya v. Subayya, AIR 1961 Ker 335 [LNIND 1960 KER 339]; Khemchand v. Mul Chand, AIR 1934 Lah 457; Basappa v. Bhimangowda, AIR 1928 Bom 65; Nand Kishore v. Lallu, AIR 1931 All 45; Bhupendra v. Taru, AIR 1950 Assam 119; see however, Sheikh Ali v. Pestonji, (1896) 1 Cal WN 62, wherein it was held that lease granted pending a suit for partition is not hit by rule of lis pendens. 58. Kubra Bibi v. Khudaija, 20 OC 13.

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(IN) Poonam Pradhan Saxena : Property Law 59. Lakshmanan v. Kamal, AIR 1959 Ker 67 [LNIND 1958 KER 163](FB). 60. Dhansingh v. Sushilabai, AIR 1968 Mad 229. 61. Raghunath Gangadhar Kakade v. Ghyan Bahadur Kapse, AIR 2006 Bom 150 [LNIND 2005 BOM 1261]; Jogendra v. Fulkumari, (1899) 27 Cal 77; Subramanya v. Subayya, AIR 1961 Ker 335 [LNIND 1960 KER 339]; Khemchand v. Mul Chand, AIR 1934 Lah 457; Ishwar v. Dattu, 37 Bom 427; Basappa v. Bhimangowda, AIR 1928 Bom 65; Nand Kishore v. Lallu, AIR 1931 All 45; Bhupendra v. Taru, AIR 1950 Assam 119. See however, Sheikh Ali v. Pestonji, (1896) 1 Cal WN 62, wherein it was held that lease granted pending a suit for partition is not hit by rule of lis pendens. 62. Rangaswami v. Sundarpndia, AIR 1928 Mad 635 [LNIND 1928 MAD 17]. 63. Jayaram v. Ayyasami, AIR 1973 SC 569 [LNIND 1972 SC 222]. 64. Baldeo v. Sarojni Dasi, AIR 1929 Cal 697. 65. Amarnath v. Deputy Director Consolidation Kanpur, AIR 1985 All 163 [LNIND 1984 ALL 243]. 66. AIR 1973 SC 569 [LNIND 1972 SC 222]. 67. Nallakumara v. Pappayi, AIR 1945 Mad 219. 68. Ammayya v. Narayana, AIR 1925 Mad 487; Balaramchandra v. Daulu, AIR 1925 Bom 176. 69. Achut Sitaram v. Shivajirao, AIR 1937 Bom 244; Lakshmanan v. Kamal, AIR 1959 Ker 67 [LNIND 1958 KER 163] FB. 70. P rataprao Narayan Pawar v. Ramchandra Dalichand Sancheti, AIR 2008 (NOC)1412 (Bom); Lalitha Kariappa v. Sanjeevi, AIR 2006 Kant 25 [LNIND 2005 KANT 460]. 71. Ramachandra v. Kamlabai, AIR 1944 Bom 191; Samarendra v. Krishna, AIR 1967 SC 1440 [LNIND 1966 SC 283]. 72. Gouri Dutt v. Surkur Mohamad, AIR 1948 PC 147. 73. Nagubai v. Shama Rao, AIR 1956 SC 593 [LNIND 1956 SC 38]; Liladhar v. Shivaji, AIR 1936 Nag 125. 74. Jayram Mudaliar v. Ayyaswami, AIR 1973 SC 569 [LNIND 1972 SC 222]. 75. Jagannath Mahaprabhu v. Pravat Chandra Chatterjee, AIR 1992 Ori 47 [LNIND 1991 ORI 129], affirming Pranakrushna v. Umakanta Panda, AIR 1989 Orissa 148. 76. AIR 1992 Ori 47 [LNIND 1991 ORI 129]. 77. Motilal v. Karabuddin, (1897) 25 Cal 179, PC. 78. Padmaja v. Erattil Sanjeev, AIR 2007 (NOC) 70 (Ker) 79. AMK Mariam Bibi v. MA Abdul Rahim, AIR 2000 NOC 21 (Mad). 80. Nagubai v. B Shama Rao, AIR 1956 SC 59; see however, Mangal Singh v. Hardial Singh, AIR 2007 P&H 203, wherein the Punjab and Haryana High Court held that a sale being hit by doctrine of lis pendens was a nullity. 81. Rangaswami v. Sundarapandia, AIR 1928 Mad 635 [LNIND 1928 MAD 17]; Kartik v. Ganeshwar, (1959) ILR Cut 273; Tatya v. Yogabai, AIR 1962 Bom 191 [LNIND 1961 BOM 25]. 82. Liladhar v. Shivaji, AIR 1936 Nag 125; Achut v. Shivajirao, AIR 1937 Bom 244; Madho Singh v. J Skinner, AIR 1941 Lah 443; Indu v. Sadhakar, AIR 1957 Cal 106 [LNIND 1956 CAL 65]; C hako v. Iype, AIR 1956 TC 147 (FB); Nagubai v. Shama Rao, AIR 1956 SC 59. 83. Jayaram v. Ayyasami, AIR 1973 SC 569 [LNIND 1972 SC 222]. 84. Lalitha Kariappa v. Sanjeevi, AIR 2006 Kant 25 [LNIND 2005 KANT 460];Nagubai v. B Shama Rao, AIR 1956 SC 59. 85. Padmavati Estate Pvt Ltd v. Kusum Agarwal, AIR 2009 NOC 583; Rama Rao v. Traghunathan, AIR 2008 AP 92 [LNIND 2007 AP 814]; Bibi Zubeda Khatoon v. Nabi Hasan Saheb, AIR 2004 173; (2004) 1 SCC 194; Sunil Gupta v. Kiran Girhotra, AIR 2008 SC 140; 2008 (1) PLJR 172; Anita Kuwar v. Chandra Bhushan Singh, AIR 2010 Pat 5; see also S. Verdangan v. V Raja, AIR 2007 (NOC) 854 (Mad); Major P T Choudhary v. Mohammed Abdul Basheer Khan, AIR 2007 (NOC)121 (AP); Mahfooz Ahmed v. Neelmani, AIR 2010 MP 165 [LNIND 2010 MP 176]; Pranakrushna v. Umakanta Panda, AIR 1989 Ori 148 [LNIND 1988 ORI 32]; Narayan Garai v. Matri Bhandar Pvt Ltd., AIR 1974 Cal 358 [LNIND 1973 CAL 273]; Shri Basant Ram v. Hans Devi, ILR (1974) HP 276; Lakshmanan v. Kamal, AIR 1959 Ker 67 [LNIND 1958 KER 163]. 86. Rajeev Berry v. Additional District Judge, AIR 2011 Utr 12. 87. Kasturi v. Iyyamerumal, AIR 2005 SC 2813 [LNIND 2005 SC 418]; (2005) 6 SCC 733 [LNIND 2005 SC 418] (para8); Dhannalal v. Kalawatibai, AIR 2002 SC 2572 [LNIND 2002 SC 412]; (2002) 6 SCC 16 [LNIND 2002 SC 412]. 88. T G Ashok Kumar v. Govindammal, AIR 2010 (NOC) 257 (Mad). 89. Pannala Renuka v. Kavali Venkataiah, AIR 2007 AP 46 [LNIND 2006 AP 878].

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(IN) Poonam Pradhan Saxena : Property Law 90. Usha Sinha v. Dina Ram, AIR 2008 SC 1997 [LNIND 2008 SC 704]; (2008) 7 SCC 144 [LNIND 2008 SC 704]. 91. Dhurandhar v. Prasad Singh, AIR 2001 SC 2552 [LNIND 2001 SC 1428]. 92. Shashi Surana v. Anant Mishra, AIR 2010 Raj 148 [LNINDORD 2010 RAJ 87]; Jayeshkumar Chhakaddas Shah v. Mafaji Motiji Thakor, AIR 2010 (NOC) 387 (Guj); Shantilata v. Rajaniman Nayak, AIR 2007 Ori 69 [LNIND 2007 ORI 57]; V. Rama Rao v. T Raghunathan, AIR 2008 AP 92 [LNIND 2007 AP 814]. 1.

Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee, AIR 1992 Ori 47 [LNIND 1991 ORI 129].

2.

Nagubai v. B Shama Rao, AIR 1956 SC 59.

3.

Shyamlal v. Sohanlal, AIR 1928 All 3.

4.

Achut Sitaram v. Shivajirao, AIR 1937 Bom 244.

5.

Rajan Gopinathan v. D Jayashree Nayan, AIR 2010 (NOC) 388 (Ker).

6.

Alamelu Achi v. Meenakshi, AIR 1960 Mad 536 [LNIND 1959 MAD 158].

7.

Joshua v. Alliance Bank, (1895) 22 Cal 185.

8.

Chidambara v. Seniappa, AIR 1965 Mad 337 [LNIND 1964 MAD 114]; Shiva Shidda v. Lakhmi Chand, AIR 1939 Bom 496; Natha v. Dhunbaiji, (1899) ILR 23 Bom 1. See also Sadashi v. Trimbak, (1899) ILR 23 Bom 146.

9.

Official Assignee v. TD Tehrani, AIR 1972 Mad 187 [LNIND 1971 MAD 192]; see also Sunderlala v. Gurusaran, AIR 1938 Oudh 65, wherein it was held that a relinquishment by one coparcenor in favour of another cannot be said to be transfer within the meaning of Transfer of Property Act, 1882, s. 53 and would therefore not be subject to this rule.

10. Akramunnisa Bibi v. Mustafa-un-nissa Bibi, AIR 1929 All 238. 11. Ishwar Das v. Radha Mal, AIR 1960 Punj 417. 12. Eknath Nana Shinde v. Shankarappa Chanborappa Shinde, AIR 1999 Bom 22 [LNIND 1998 BOM 796]. 13. Parbhu Nath v. Sarju Prasad, AIR 1940 All 407. 14. Jangali Tewari v. Babban Tewari, AIR 1982 All 316 [LNIND 1982 ALL 1]; Mahendra v. Suraj Kumar, AIR 1958 Pat 568; Saraswati v. Mahabir, AIR 1928 All 476; Swaminatha v. Rukmani, 55 IC 766; Prakash Narian v. Raja Birendra, AIR 1931 Oudh 333; Petherpermal v. Muniandi, (1908) ILR 35 Cal 551. 15. Prasad v. Govindaswami, AIR 1982 SC 84 [LNIND 1981 SC 455]. 16. Mina Kumari v. Bejoy Singh, AIR 1916 PC 232; Bandaru Subbaaidu v. Alluri Satyanarayana, AIR 1962 AP 25 [LNIND 1960 AP 282]; Kubra Begum v. Jainanadan, AIR 1956 Pat 270; Budhermal v. Verharan, AIR 1946 Sau 78; Purnachandra v. Sarojendra, AIR 1953 Cal 251 [LNIND 1951 CAL 169]. 17. Sheo Gobind Koeri v. Ram Asrav Singh, AIR 1939 Pat 5. 18. Yanala Maheshwari v. Ananthula Sayamma, AIR 2007 AP 57 [LNIND 2006 AP 1091]. 19. Anant Roman v. Arunachalam, AIR 1952 Tr & Coch 105. 20. VN Sarin v. Ajit Poplai, AIR 1966 SC 432 [LNIND 1965 SC 184]. 21. The Transfer of Property Act, 1882, s. 5. 22. Vinayak v. Moreshwar, AIR 1944 Nag 44 (FB); Fazlul Rahimkhan v. Nawab Kishore, AIR 1952 All 226 [LNIND 1951 ALL 209]. See also Panchali v. Panniyodan Manni, AIR 1963 Ker 66 [LNIND 1962 KER 174](FB). 23. Picha Mooppanar v. Vetu Pillai, AIR 1947 Mad 203 [LNIND 1946 MAD 190]; see also Shantilala v. Munshi Lal, AIR 1932 Bom 498, wherein it was held that where there are no debts existing and the father does not take a share but receives an allowance in lieu of his share to protect the interests of the minor son, the partition is not fraudulent. 24. Official Assignee v. Balusami Ayyar, AIR 1928 Mad 735 (FB). 25. Sushilabehn v. Anandilal Bapalal, AIR 1983 Guj 126 [LNIND 1982 GUJ 217]. 26. Rattan Devi v. Jagadharmal, AIR 1956 Punj 46. 27. Firm Schwebo v. Subbiah, AIR 1944 Mad 381 [LNIND 1944 MAD 78]; but a partion of a joint Hindu Family property between a Hindu father and his son is not voidable even if it is made to avoid attachment by a creditor of the father. See Chottelal v. Lakhmichand, AIR 1926 Nag 355; Gaya Prasad v. Murlidhar, AIR 1926 All 714; Krihsnasami v. Ramaswami, (1899) ILR 22 Mad 519. 28. Chidambaram v. Sami Aiyar, (1907) ILR 30 Mad 6; see also Motilal v. Kashibai, AIR 1938 Nag 249. See Chidambaram Chettiar v. Srinivasa Sastrial, AIR 1914 PC 137, where the rule was applied in case of an assignment of a decree where a considerable part of consideration was secretly reserved for the assignor.

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(IN) Poonam Pradhan Saxena : Property Law 29. Ah Foon v. Hoe Lai Pat, AIR 1932 Rang 13. 30. Ram Chand v. Mathura Chand, AIR 1921 All 298; T Pillai v. Muthuramal, (1910) ILR 33 Mad 205; Ramdas v. Debu, AIR 1930 All 610; Nanjamma v. Rangappa, AIR 1954 Mad 273 [LNIND 1953 MAD 72]; Rajagopala Chetty v. Sivagami, AIR 1924 Mad 779; Murli Motiram v. Rewa Chand, AIR 1946 Sau 137; Magni Bai v. Keasarimal, AIR 1955 MB 159; Nourattan v. Stephen, AIR 1922 Pat 572. 31. Faiz Ali v. Harkuar, AIR 1923 Nag 334; Gamu v. Nathu, AIR 1926 Nag 494; China Mal v. Gul Ahmad, AIR 1923 Lah 478; Ishwar v. Devar, (1903) ILR 27 Bom 146. 32. Bhaskara Chalamiah (died) Piler Khasim Saheb v. The Body of Creditors of Piler Khasim Saheb, AIR 1965 Andh Pra 68. 33. Parkash v. Birendra, AIR 1931 Oudh 333; Abdullah Khan v. Purshottam, AIR 1948 Bom 269. 34. Stilman v. Ashdown, (1742) 2 Atk 477; B & Co. v. Ramaswami, AIR 1966 Mad 252. 35. Muhamad Ishaq v. Mohamad Yusuf, AIR 1927 Lah 420. 36. Umar Sait v. Union of India, AIR 1965 Mad 395 [LNIND 1964 MAD 197]. 37. Ishaq v. Mohamad Yusuf, AIR 1927 Lah 420; Mohamad Ali Khan v. Bismillah, AIR 1930 PC 255; Sadashiv v. Trimbak, (1899) ILR 23 Bom 146; Ebrahim v. Foolbai, (1902) ILR 26 Bom 577. 38. Bibi Saira v. Bibi Suleman, AIR 1921 Pat 395; Amina Bibi v. Sheikh Muhamad, AIR 1929 Oudh 520; Suba v. Balgobind, (1886) ILR 8 All 178; Umrao Singh v. Kaniz Fatima, (1901) All WN 67. 39. Meenakshi Ammal v. Ammani Ammal, AIR 1927 Mad 657 [LNIND 1926 MAD 503]. 40. Brij Raj v. Ram Dayal, AIR 1932 Oudh 40. 41. Bai Hakumbu v. Dayabhai Rugnath, AIR 1939 Bom 508. 42. Janardhan Mallan v. Gangadharan, AIR 1983 Ker 178 [LNIND 1982 KER 268](FB). 43. Timappa v. Venkappa, (1903) ILR 27 Bom 146; Chinamal v. Gul Ahmad, AIR 1923 Lah 478; Meenakshi v. Ammini, AIR 1927 Mad 657 [LNIND 1926 MAD 503]; Abdellakhna v. Purshottam, AIR 1948 Bom 269. 44. Rajbari Bank v. Rani Harshamukhi, AIR 1947 Cal 154. 45. Bhaskara Chalamiah (died) Piler Khasim Saheb v. The Body of Creditors of Piler Khasim Saheb, AIR 1965 Andh Pra 68. 46. Chogmal Bhandari v. Deputy Commercial Tax Officer, AIR 1976 SC 656 [LNIND 1976 SC 41]; Srimal v. Hiralal, AIR 1938 Bom 289; Mina Kumari v. Bejoysingh, AIR 1922 PC 232; Bhagwant v. Kedari, (1901) ILR 25 Bom 202; Amarchand v. Gokul, (1903) 5 Bom LR 142; Thakur Bibi v. Hazari Singh, AIR 1930 Oudh 93; Uttamrao v. Gangaram, AIR 1932 Nag 33; Tan San Mai v. U Kya Zin, AIR 1933 Rang 162; Narayana v. Offical Receiver, AIR 1934 Mad 294 [LNIND 1933 MAD 170]; Ma Pwa May v. SRMMA Chettyar Firm, AIR 1929 PC 279; Ladhu Ram v. Charnu, AIR 1929 Lah 409; Solema Bibi v. Hafez Mohammad, AIR 1927 Cal 836. 47. Saroj Ammal v. Sri Venkateswara Finance Corpn. Vellore, AIR 1989 NOC 4 (Mad); Bhagwan Das v. Kashi Ram, AIR 1914 Lah 356. 48. Mula Ram v. Jiwanda, AIR 1923 Lah 423; Fakira v. Majho, (1917) 2 Pat LJ 546; Akrammunnissa Bibi v. Mustafaunnissa Bibi, AIR 1929 All 238; Kanchanbai v. Moti Chand, AIR 1967 MP 145 [LNIND 1964 MP 65]; RROO Chettiar Firm v. Ma Sein Yin, AIR 1928 Rang 1. 49. Visvananda v. Venkata, AIR 1927 Mad 278 [LNIND 1926 MAD 317]; Chidambaram v. Srinivasa, (1914) ILR 37 Mad 227; Saroj Ammal v. Sri Venkateswara Finance Corpn Vellore, AIR 1989 NOC 4 (Mad). 50. Nainsukhdas v. Goverdhasndas, AIR 1948 Nag 110; Narayana v. Viraraghavan, (1900) ILR 23 Mad 184. 51. Gani v. Sitaram, AIR 1924 Nag 318; Alagappa v. Dasappa, (1913) 24 Mad LJ 293; Palamalai v. South Indian Export Co., (1910) ILR 33 Mad 334. 52. Abdul Shakoor v. Arji Papa Rao, AIR 1963 SC 1150 [LNIND 1962 SC 445]; Basavegowda v. S. Narayana Swamy, AIR 1986 Kant 225 [LNIND 1985 KANT 125]; Haque Brothers v. Mahendra Nath, AIR 1966 Ass 36. 53. Kedarwati v. Radhey Lal, AIR 1937 Pat 609. 54. Rajani v. Gourkishore, (1908) 35 Cal 1051; Krishan Kumar v. Joykrishna, 21 Cal WN 401; see also Visvananda v. Raja Venkata, AIR 1927 Mad 278 [LNIND 1926 MAD 317]; VR Mudaliar v. Thruvengada, AIR 1928 Mad 20; Applaraju v. Krishnamurti, AIR 1932 Mad 182; Muthuvasu v. Velu Murga, AIR 1939 Mad 745; see Jamadar Singh v. Rajav Ali, AIR 1941 Cal 378, wherein it was held that existence of specific fraudulent intention taints the transfer with the vice of voidability by the creditors so defeated or delayed and it does not matter whether part of the consideration is good. 55. Chidambaram v. Sami Aiyar, (1907) ILR 30 Mad 6; Mula Ram v. Jiwanda, AIR 1923 Lah 404; Madan Gopal v. Lahrimal, AIR 1930 Lah 1027; Varayan v. Thakardas, AIR 1935 Lah 404.

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(IN) Poonam Pradhan Saxena : Property Law 56. Samarao v. Doriaswami, 24 Mad LJ 266. 57. See The Transfer of Property Act, 1882, s. 53. 58. N Rajyalakshmamma v. K Rajamma, AIR 1973 Andh Pra 53; State Bank of Travancore v. AK Narayana, AIR 1967 Ker 171 [LNIND 1966 KER 175]. 59. Pokker v. Kunhamad, (1919) ILR 42 Mad 143; China Mal v. Gul Ahmad, AIR 1923 Lah 478; Thakurji v. Narsingh Narayan, AIR 1921 Rang 53. Under English law a creditor can sue alone; see Reese River Silver Mining Co. v. Atwell, (1869) LR 7 Eq 347. 60. Harekrishna v. Banamali, AIR 1971 Ori 1561; Ekkari Ghose v. Sideshwar Ghose, AIR 1936 Cal 783; Burjori v. Dhunbai, (1892) ILR 16 Bom 1; Ishwar v. Devar, (1903) ILR 27 Bom 146. 61. Asgar Ali v. CVM Firm, AIR 1936 Rang 117; C Chettiar v. R.S. Firm, AIR 1934 Rang 302; Hemrajmul v. Zulika, AIR 1943 Mad 431; Magnibai v. Kesarimal, AIR 1955 MB 159; Mukaromdas v. Chhagan, AIR 1959 Bom 491 [LNIND 1957 BOM 80]; Velama v. R Shenoy, AIR 1963 Ker 356 [LNIND 1962 KER 143]. 62. Madina Bibi v. ID Assocn, AIR 1940 Mad 789 [LNIND 1940 MAD 55]; Shantibai v. Champalal, AIR 1963 MP 363. 63. Ramanatha v. Alagappa, AIR 1956 Mad 682; Kosuru Ademma v. Chevuru Subbamma, AIR 1942 714; Bai Hakimbu v. Dayabhai Rugnath, AIR 1939 Rang 508. 64. Abdul Shakoor v. Arji Papa Rao, AIR 1963 SC 1150 [LNIND 1962 SC 445]; Ramaswami Chettiar v. Mallappa Reddiar, (1920) ILR 43 Mad 760. 65. Daulat Ram v. Ghulam Fatima, AIR 1926 Lah 25; Chana Madhu v. Mankubai, AIR 1950 Kutch 57; Ram Dutta v. Official Receiver, AIR 1934 Lah 365; Radha v. Kalpatru, 17 Cal LJ 209; Rajbari Bank Ltd. v. Rani Harshamukhi, AIR 1947 Cal 154; Rambilas v. Ganpat, AIR 1954 Nag 129; Bachan v. Banarasi, AIR 1961 Pat 361; Abdul v. Sultan, AIR 1941 Oudh 178; NS Firm v. Allaudin, AIR 1933 Rang 191; see also Abdul Shakoor v. Arji Papa Rao, AIR 1963 SC 1150 [LNIND 1962 SC 445]. 66. Amarchand v. Gokul, (1903) 5 Bom LR 142; Mohideen v. Mohamad, AIR 1930 Mad 665 [LNIND 1929 MAD 335]; Woomesh Chunder v. Gooroodoss Roy, 17 WR 9 (PC); Basavegowda v. S. Narayana Swamy, AIR 1986 Kant 225 [LNIND 1985 KANT 125]. 67. Amarchand v. Gokul, (1903) 5 Bom LR 142; Ah Foon v. Hoe Lai Pat, AIR 1932 Rang 13. 68. Ali Muhamad Khan v. Bismillah, AIR 1930 PC 255. 69. Chandradip Singh v. Addl Member Board of Revenue, AIR 1978 Pat 148. 70. Rambilas v. Ganpatrao, AIR 1954 Nag 129; Mathoora Pandey v. Ram Ruchya, 11 WR 482; Mohamad Haidar v. Safdar Jah, AIR 1938 Oudh 230. 71. Sharfumiya v. Pacha Saheb, AIR 1928 Mad 793. 72. Chidambaram v. Sriniwasa, (1914) ILR 37 Mad 227; Jagat Kishore v. Kulakamini Dasya, AIR 1941 Cal 233. 73. Shanti Lal v. Champalal, AIR 1962 MP 363 [LNIND 1961 MP 18]; Nandaramdas v. Zuleka Bibi, AIR 1943 Mad 531 [LNIND 1943 MAD 105]; Umrao Begum v. Rahmat Ilahi, AIR 1939 Lah 4; Natha v. Dhumbaji, (1899) ILR 23 Bom 1; Ghansamdas v. Uma Prasad, (1919) 10 21 Bom LR 472; Bhagwant v. Kedari, (1901) ILR 25 Bom 202. 74. Abdul Shukoor v. Arji Papa Rao, AIR 1964 SC 1150. 75. Natha v. Maganchand, (1903) ILR 27 Bom 322; Muniyammal v. Thyagaraja, AIR 1958 Mad 580; Subraya v. Perumal, 43 IC 956. 76. NLN Chettiar v. J Chettiar, AIR 1972 Mad 34 [LNIND 1971 MAD 23]; Errachi Reddair v. Velayya Reddiar, AIR 1968 Mad 256 [LNIND 1967 MAD 56]. 77. Phooni v. Radhey Shyam, AIR 1950 Ajm 41; Bishen Chand v. Asmaida Koer, (1884) ILR 6 All 560, a case involving a gift of joint family property by the father in favour of his grandsons with consent of his son who had received consideration by payment of his debts. The gift was held to be valid. 78. Muthiah Chetti v. Palaniappa Chetty, AIR 1928 PC 139. 79. Maung Din v. Ma Hnin Me, AIR 1925 Rang 227. 80. See The Transfer of Property Act, 1882, s. 53(2) para 1. 81. Mohamad Ishaq v. Mohamad Yusuf, AIR 1927 Lah 420; Sukhpal Kuar v. Dasu, 58 IC 165. 82. Kapini Gaundan v. Saranganapani, (1916) Mad WN 288. 83. Mathura v. Holy Umrao, (1949) ILR 28 Pat 97; Khodiya Bibi v. Shah Muhamad Zahir, (1901) All WN 64; Amina Bibi v. Muhamad Ibrahim, AIR 1929 Oudh 520; Bibi Saira v. Bibi Suleman, AIR 1921 Pat 395. 84. Yanala Maheshwari v. Ananthula Sayamma AIR 2007 AP 57 [LNIND 2006 AP 1091].

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(IN) Poonam Pradhan Saxena : Property Law 85. Good consideration alone is not sufficient unless the transferee acts bona fide, see Palamalai v. South Indian Exports Co., (1910) ILR 33 Mad 34; Kamini v. Hira Lal, (1919) 23 Cal WN 769; Aftabuddin v. Basanta, (1918) 22 Cal WN 427; Bhagwant v. Kedari, (1901) ILR 25 Bom 202. 86. Chidambaram Chettiar v. Sami Aiyar, (1907) ILR 30 Mad 6. 87. Ishan Chunder v. Bishu, (1897) ILR 24 Cal 825; see also Amarnath v. Dwarka Das, AIR 1945 All 42. 88. Daulat Ram v. Ghulam Fatima, AIR 1926 Lah 25; Ibrahim v. Jiwan Das, AIR 1924 Lah 707. 89. Mula Ram v. Jiwanda, AIR 1923 Lah 423. 90. Alagappa v. Dasappa, (1913) 24 Mad LJ 293. 91. Vinayak v. Kaniram, AIR 1926 Nag 293; Natha v. Maganchand, (1903) ILR 27 Bom 322; Ramasamia v. Adinarayana Pillai, (1897) ILR 20 Mad 465. 92. Kunhu Pothanassiar v. Ram Nair, AIR 1923 Mad 558 [LNIND 1922 MAD 107]. See also Jones v. Gordon, (1877) 2 App Cas 616, wherein it was held that a deliberate failure to make inquiries would lead to a constructive notice on part of the person. 93. Ah Foon v. Hoc Lai Pat, AIR 1932 Rang 13; Ishan Chunder v. Bishu, (1897) ILR 24 Cal 825. 94. Samittri Devi v. Sampuran Singh AIR 2011 SC 773 [LNIND 2011 SC 91]. 95. Gobind Ram v. Chhogmal, AIR 1934 Lah 161. 1.

Marwadi Samnaji v. Sripathi, AIR 1927 Mad 1144 [LNIND 1926 MAD 390]; Natha v. Maganchand, (1903) ILR 27 Bom 322.

2.

Man Singh v. BN Sinha, AIR 1940 Lah 198; see also Basti Begum v. Banarasi Prasad, (1907) 30 All 297.

3.

Phagoo v. Tulshi, AIR 1930 All 438.

4.

Nigamananda Patra v. Sarat Chandra Patra, AIR 1998 Ori 19 [LNIND 1996 ORI 110].

5.

Ram Kumar Agarwal v. Thawar Das, (1999) 7 SCC 303 [LNIND 1999 SC 725]; Jacobs Pvt Ltd. v. Thomas Jacob, AIR 1995 Ker 249 [LNIND 1994 KER 263]; Damodaran v. Sheikaran, AIR 1993 Ker 242 [LNIND 1992 KER 89]; M Mariappa v. AK Sathyanarayan Shetty, AIR 1984 Kant 58.

6.

See The Transfer of Property Act, 1882, s. 53A. This right was not available to Indians before the Act see Kripa Ram v. Bishen Das, AIR 1944 Lah 179. The doctrine was made a part of the statute in 1929, and has recently been amended i.e. on 24th September, 2001, to delete the words ‘or has not been registered from the definition. It is not applicable to the State of Jammu and Kashmir see Swaran Kumar Jain v. Dev Dutt Mahajan, AIR 1994 J & K 33.

7.

(1703) 2 Vern 456.

8.

(1848) 2 HL Cas 131.

9.

See The Transfer of Property Act, 1882, s. 53A;Rikhi v. New Delhi Municipality, AIR 1962 SC 561.

10. Ramakrishna v. Jainandan, AIR 1935 Pat 291; Narsayya v. Ramchandrayya, AIR 1956 Andh Pra 209. 11. AMASultan v. Seyda Zohra Bibi, AIR 1990 Ker 186 [LNIND 1989 KER 80]; Pir Bux v. Mohamad Tahar, AIR 1934 PC 235; Sardar Govindrao Mahadik v. Devi Sahay, AIR 1982 SC 989 [LNIND 1981 SC 464]; Nathulaal v. Phool Chand, AIR 1970 SC 546 [LNIND 1969 SC 408]; Chaliagulla Ramchandrayya v. Boppana v. Satyanarayana, AIR 1964 SC 877 [LNIND 1963 SC 160]; Maneklal Mansukhbahi v. Honnusji Jamshedji, AIR 1950 SC 1 [LNIND 1950 SC 13]. 12. Kashinath Mehrotra v. Roop Narayan Choudhary, AIR 2008 (NOC) 301 (All); Basanti Bai v. Fulchand Mondal, AIR 2007 Cal 8 [LNIND 2006 CAL 289]; Raj Singh Hurji Bhilv Vant Ken Manjubhai, AIR 2007 Guj 69 [LNIND 2006 GUJ 502]; Bhajan Lal v. Bal Govind, AIR 2007 All 19; Magna v. Amar Chand, AIR 2007 (NOC) 1435 (Raj); Thota Rambabau v. Cherujuri Venkteshwara Rao, AIR 2006 AP 114 [LNIND 2005 AP 486]; H C Nagappa v. Thairnnisa, AIR 2006 Kant 112 [LNIND 2005 KANT 594]; K Balaraman v. Pattamal, AIR 2006 Mad 260 [LNIND 2006 MAD 966]; N G Vigneshwara Bhat v. P Srikrishna Bhat, AIR 2006 Kant 322; Parasa Ranga Rao v. Mathe Sanjeeva Rao, AIR 2006 AP 366 [LNIND 2006 AP 605]; Ganga Ram v. Kamal Chand, AIR 2006 Raj 17; Hamida v. Humer, AIR 1992 All 346 [LNIND 1992 ALL 290]. 13. Ramrao v. Purnanad, AIR 1940 Bom 282; Kashiprosad v. Bedprosad, AIR 1940 Nag 113; Kashprasad v. Tewari, AIR 1939 All 504; Sardarilal v. Sahkuntala, AIR 1961 Pat 378. 14. It is more restricted than the English doctrine as there must be a written contract and is available only as a defence, see UN Sharma v. Puttegowda, AIR 1986 Kant 99 [LNIND 1985 KANT 122]. 15. Ramachandra v. Subrayya, AIR 1951 Bom 127 [LNIND 1951 BOM 10]; Maneklal v. Hormushji, (1950) SCR 75; Banarasi Das v. Ali Mohamad, AIR 1936 Lah 5; Wakefield v. Sayeeda Khatoon, AIR 1937 Pat 36; Deochand v. Parbah, AIR 1952 Nag 115; Lalbihari v. Kanak, AIR 1962 Cal 502 [LNIND 1962 CAL 10]; Ashutosh v. Nalinaksha, AIR 1937 Cal 467; Kanti Chandraw v. Brojendra Mohan, AIR 1929 Cal 186; Jogendra Krishna v. Kurpal Harish, AIR 1923 Cal 63; Ganjendra v. Ashraff, AIR 1923 Cal 130; Chan E Maung v. Ah Til, AIR 1925 Rang 118; Peari Devi v. Naimish Chandra, AIR 1926 Pat 184; Bipin Behari v. Tin Cowry, (1911) 13 Cal LJ 271; Secretary of State v. Forbes, (1912) 16 Cal LJ 217; Karamath Khan v. Latchmi, Atchi 61 IC 675.

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(IN) Poonam Pradhan Saxena : Property Law 16. Husein v. Jamini, AIR 1938 Cal 97; Maung Tun Ya v. Maung Aung, AIR 1925 Rang 1; Po Tuk Maung v. Ma Le War, AIR 1925 Rang 102. The benefit of part performance is available to a ususfructory mortgage see Bheema Reddi Jeedikanti Ram Reddi v. Salla Venkat Reddy, AIR 1963 Andh Pra 489; Ayyan v. Krishna, AIR 1950 TC 81; it is also available to a mortgagee as against receiver in whom the interest of mortgagor vests, see Chhoturam v. Khairati, AIR 1960 Pat 604. 17. Hari Pada v. Nirod Krishna, (1921) 33 Cal LJ 437; Mehar Ali Khan v. Aratunnessa, (1921) 25 Cal WN 905. 18. Khankala Kunta v. Mandlem Giraviah, AIR 1926 Mad 757 [LNIND 1925 MAD 285]; Akli v. Daha, AIR 1928 AP 44; Hameshwar v. Pal Chandra, AIR 1928 Cal 754; Shyam Kishore v. Umesh Chandra, AIR (1920) 24 Cal WN 463. 19. Khogendra v. Sona Ben, (1915) 20 Cal WN 140. 20. Soniram v. Dwarakabai, AIR 1951 Bom 94 [LNIND 1951 BOM 7]. 21. Ramabatar v. Sahntabala, AIR 1954 Cal 207 [LNIND 1953 CAL 179]; Ramnarain v. Sukhi, AIR 1957 Pat 24. 22. Mahadevi v. Padarath, AIR 1937 All 578; Jubba v. Marmesa, AIR 1950 All 770. 23. Radhakrisnayyar v. Sarasamma, AIR 1951 Mad 213 [LNIND 1950 MAD 290]; Zaveri v. Jitu, AIR 1954 Sau 46. 24. Marella v. Konduru Venkata, AIR 1961 Andh Pra 31; SahebAli v. Sahatulla, 42 Cal WN 1028. 25. Parini Vishnumurthy v. Vindavalli Durayya, AIR 2009 AP 187; Kashinath Mehrotra v. Roop Narayan Choudhary, AIR 2008 (NOC) 301 (All); Basanti Bai v. Fulchand Mondal, AIR 2007 Cal 8 [LNIND 2006 CAL 289]; Raj Singh Hurji Bhilv Vant Ken Manjubhai, AIR 2007 Guj 69 [LNIND 2006 GUJ 502]; Bhajan Lal v. Bal Govind, AIR 2007 All 19; Magna v. Amar Chand, AIR 2007 (NOC) 1435 (Raj); Thota Rambabau v. Cherujuri Venkteshwara Rao, AIR 2006 AP 114 [LNIND 2005 AP 486]; H C Nagappa v. Thairnnisa, AIR 2006 Kant 112 [LNIND 2005 KANT 594]; K Balaraman v. Pattamal, AIR 2006 Mad 260 [LNIND 2006 MAD 966]; N G Vigneshwara Bhat v. P Srikrishna Bhat, AIR 2006 Kant 322; Parasa Ranga Rao v. Mathe Sanjeeva Rao, AIR 2006 AP 366 [LNIND 2006 AP 605]; Ganga Ram v. Kamal Chand, AIR 2006 Raj 17; Murid v. Usman, AIR 1962 Pat 475; Shrawan Jayram v. Gorbad Ukha, AIR 1943 Bom 406; Bechardas v. Ahemedabad Municipality, AIR 1941 Bom 346; Dhanrajmal v. Hazarimal, AIR 1943 Sau 81; Ma Mya v. VPRVSAANNAMDAI Chettiar, AIR 1934 Rang 127; U Pu Le v. Oo Kim Seng, AIR 1933 Rang 136. In two cases, the doctrine was applied to oral sales to persons in possession though there was no act done in furtherance of the contract; see Naganna v. Appalaraju, AIR 1930 Mad 1021 [LNIND 1930 MAD 20]; Husaini Begum v. Sultani Begum, AIR 1927 Oudh 485. 26. Mahadeva v. Tanabai, AIR 2004 Bom 378 [LNIND 2004 BOM 438]; Rambhau Namdeo Gaire v. Narayan Bapuji Dhotra, (2004) 8 SCC 614 [LNIND 2004 SC 839]; Kalawati Tripathi v. Damyanti Devi, AIR 1993 Pat 1; Moturi Seeta Ramabrahmam v. Bobba Rama Mohana Rao, AIR 2000 Andh Pra 504; Ude Ram v. State of Haryana, AIR 1994 P&H 175; Sundararaja v. Kanakaraj, AIR 1958 Mad 578 [LNIND 1958 MAD 32]; Narasayya v. Ramchandrayya, AIR 1956 AP 209; Narayana v. Guruprasad, AIR 1952 Nag 246; Balkrishna v. Ranganath, AIR 1951 Nag 171; Ma Shwe Kin v. Ka Hee, AIR 1924 Rang 381. 27. N Kamalamma v. H S Subbanarasimha Sastry, AIR 2010 (NOC) 883 (Kar). 28. Shravan v. Garbad, AIR 1943 Bom 406; New Delhi v. Rikhey, AIR 1956 Pat 181. 29. Shira Khatoon v. Paung Po, AIR 1939 Rang 206; Maung Po Kwe v. Maung Po Sein, AIR 1938 Rang 49. 30. Krishna Sardar v. Sindhu Bala, AIR 1970 Cal 444 [LNIND 1969 CAL 274]. 31. Radha Bai v. Nayudu, AIR 1951 Nag 285. 32. Maneklal Mansukhbahi v. Honnusji Jamshedji, AIR 1950 SC 1 [LNIND 1950 SC 13]. 33. Allam Gangadhar Rao v. G Gangaroo, AIR 1968 AP 291 [LNIND 1967 AP 71]. 34. Yasodammal v. Janki Ammal, AIR 1968 Mad 294 [LNIND 1967 MAD 11]. 35. Janab Yakoob v. M Krishnan, AIR 1992 Mad 80 [LNIND 1991 MAD 135]. 36. Bobba Suramma v. P Chandramma, AIR 1959 Andh Pra 568; Karthikeya v. Singaram, AIR 1956 Mad 693 [LNIND 1956 MAD 283]; Maneklal Mansukhbahi v. Honnusji Jamshedji, AIR 1950 SC 1 [LNIND 1950 SC 13]. 37. Ajjab Singh v. Jhabbu Lal, AIR 1948 Nag 67. 38. Maung Ohu v. Maung Po Kwe, AIR 1938 Rang 356. 39. Kathiar Jute Mills v. Calcutta Match Works, AIR 1958 Pat 133; Parasram v. Deoram, AIR 1947 Nag 188; Subhod Chandra v. Bhagwan Das, AIR 1947 Cal 353; Qamar Jahan Begam v. Bansidhar, AIR 1942 Oudh 23; Ramjiwan v. Hanuman, AIR 1940 Oudh 409; Kashi Prasad v. Bed Prasad, AIR 1940 Nag 113; Hair Prasad v. Hanmantrao, AIR 1937 Nag 74; Nasiban v. Mohamad Syed, AIR 1936 Nag 174. 40. Murid v. Usman, AIR 1962 Pat 475. 41. Hazari Lal v. Jugal Kishore, AIR 1999 MP 104 [LNIND 1998 MP 40].

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(IN) Poonam Pradhan Saxena : Property Law 42. Berendra Huttaya v. Gauri Channaya, AIR 1948 Mad 546; see however, Raghavendra v. Motilal, AIR 1982 All 304, wherein it was held that where a lease was registered though not signed by the transferee and the possession was given to the lessee, the doctrine is available to the lessee to protect his possession. 43. Srikakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 PC 95; see however, Subramanayya v. Subba Rao, AIR 1944 Mad 337 [LNIND 1943 MAD 242]; Satyanarayanamurhty v. Subrahmanyam, AIR 1959 Andh Pra 534, wherein it was held that where a document was singed by an agent; or karta of a joint family and unless it was expressly stated to be on behalf of the joint family, it would not be sufficient to attract the application of the doctrine. 44. Srikakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 PC 95; see also Lalchand v. Sharifabi, AIR 1961 Bom 215 [LNIND 1960 BOM 119], wherein it was held that the words should be liberally construed. 45. Steuart and Co. v. C Mackertich, AIR 1963 Cal 198 [LNIND 1962 CAL 49]. 46. Arun Kumar Tandon v. Akash Telecom Pvt Ltd, AIR 2010 (NOC) 744 (Del), see however, Nagna v. Amarchand, AIR 2007 (NOC) 1425 (Raj); Amar Singh v. Laxman, AIR 2007 (NOC) 320 (Raj). 47. Bhabhi Dutt v. Ramlalbyamal, AIR 1934 Rang 303. 48. Kamalabai Laxman Pathak v. Onkar Parsharam Patil, AIR 1995 Bom 113 [LNIND 1994 BOM 149]. 49. Bobby Suramma v. PC Handramma, AIR 1959 Andh Pra 568. 50. SDP Sabha Baijnath Cooperative Multipurpose Society v. State of Haryana, AIR 1984 NOC 67 (HP); Piru Charan Pal v. Sumtmony Nema, AIR 1973 Cal 1 [LNIND 1972 CAL 169](FB). 51. Sardar Kamaljit Singh v. Suresh Chand, AIR 2010 Raj 152; Nila Padan v. Gokulananda Padhi, AIR 1950 Ori 118; Sanyasin Raju v. Kamappadu, AIR 1960 Andh Pra 83. 52. Bobbo Suramma v. P.Chandramma, AIR 1959 Andh Pra 568; Balkrishna v. Ranganath, AIR 1951 Nag 171. 53. Manjural Hoque v. Mewajan Bibi, AIR 1956 Cal 350 [LNIND 1955 CAL 142]. 54. RKApartments Pvt. Ltd. v. Arun Bahree, 77 (1999) DLT 193, where temporary possession was given to the transferee. 55. Roop Singh v. Ram Singh, AIR 2000 SC 1485 [LNIND 2000 SC 521]; Mohan Lal v. Mirza Abdul Gaffar, AIR 1996 SC 910 [LNIND 1995 SC 1293]; Basanti Devi v. Fulchand Mondal, AIR 2007 Cal 8 [LNIND 2006 CAL 289]; Raj Sing Hurji Bhil v. Vani Ken Manjubhai, AIR 2007 Guj 69 [LNIND 2006 GUJ 502]. 56. Durga Prasad v. Kanhaiya Lal, AIR 1979 Raj 200. 57. Nagar Khan v. Gopi Ram, AIR 1976 Pat 2. 58. Sultan v. Zohra Bibi, AIR 1990 Ker 186 [LNIND 1989 KER 80]; Govindrao Mahadik v. Devi Sahay, AIR 1982 SC 989 [LNIND 1981 SC 464]. 59. Bhagwan Das v. Suraj Mal, AIR 1961 MP 237 [LNIND 1960 MP 104]; Dakshinamurhty v. Dhanakoti, AIR 1925 Mad 965 [LNIND 1924 MAD 387]. 60. Sunil Kumar v. Aghor Basu, AIR 1989 Gau 39 [LNIND 1987 GAU 16]; S K Kapoor v. Sanjay, AIR 2010 All 56; St Mary Educational Society v. Qutubuddin Ahmed, AIR 2007 AP 156 [LNIND 2006 AP 1329]. 61. Annamalai Goundan v. Venkataswami Naidu, AIR 1959 Mad 354 [LNIND 1959 MAD 6]; see also Mallappa Bhimanna v. Land Tribunal, (1979) 2 Kant LJ 218; Mallana v. Abdul Nabi, AIR 1986 Kant 221 [LNIND 1985 KANT 140]. 62. See Satyaranjan Chakravorty v. Habibur Sobhan, AIR 1933 Cal 393, wherein it was held that where the tenant pays reduced rent after renewal it would be an act done in furtherance of the contract and entitle him to protection of his renewed lease. 63. Pannalal v. Labhchand, AIR 1955 MB 49. 64. Biswabani Pvt. Ltd. v. Santosh Kumar Dutta, AIR 1980 SC 226 [LNIND 1979 SC 373]. 65. Goswami Malthivahuaji Maharaj v. Purushottam, AIR 1984 Cal 297 [LNIND 1984 CAL 181]. 66. Inder Kumar Johar v. Kailash Devi, AIR 1999 P&H 65. 67. S K Kapoor v. Sanjay, AIR 2010 All 56. 68. RK Apartments v. Arun Bahree, 77 (1999) DLT 193. 69. Sunil Kumar v. Aghore Basu, AIR 1989 Gau 39 [LNIND 1987 GAU 16]. 70. Govindrao Mahadik v. Devi Sahay, AIR 1982 SC 989 [LNIND 1981 SC 464]. 71. Kukaji v. Basantilal, AIR 1955 Madh Bh 93. 72. Satyaranjan Chakravorty v. Habibur Sobhan, AIR 1933 Cal 393. 73. Raj Pal Singh v. Harbans Kaur, AIR 2010 (NOC) 1021 (P&H).

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(IN) Poonam Pradhan Saxena : Property Law 74. Naicker P v. S. Pillai, AIR 1971 Mad 466 [LNIND 1971 MAD 45]. 75. Teja Singh v. Ram Prakash Talwar, AIR 1984 P&H 95. 76. AIR 1970 Mys 203. 77. AIR 1955 Hyd 101. 78. AIR 1955 MB 93. 79. Steadman v. Steadman, (1974) 2 All ER 977; see also Duke of Somerset v. Cookson, (1735–24] ER 1114. 80. AIR 1982 SC 989 [LNIND 1981 SC 464]. 81. AIR 1989 Gau 39 [LNIND 1987 GAU 16]. 82. M Ponnuswamy v. M Thamaraikannan, AIR 2008 (NOC) 506 (Kant); Kuldip Singh v. Prakash Chand, AIR 1985 P&H 222; Bhajan Lal v. Bal Govind, AIR 2007 All 199 [LNIND 2007 ALL 106]. 83. Seshamma v. N M Haneef, AIR 2010 (NOC) 653 (Mad); Govindrao Mahadik v. Devi Sahay, AIR 1982 SC 989 [LNIND 1981 SC 464]. 84. Balasaheb Manikraa Deashmukh v. Rama Lingoji Warthi, AIR 2000 Bom 337 [LNIND 2000 AUG 5]. 85. A Lewis v. M T Rama Murthy, AIR 2008 SC 493 [LNIND 2007 SC 1284]; Brij Gopal Lumani v. Mothey Anja Rama Raj Kumar, AIR 2010 (NOC) 570 (AP); Ram Kumar Agarwal v. Thawar Das, (1999) 7 SCC 303 [LNIND 1999 SC 725]; Mohan Lal v. Mir Abdul Gaffar, AIR 1996 SC 910 [LNIND 1995 SC 1293]. 86. Thota Rambabau v. Cherujuri Venkteshwara Rao, AIR 2006 AP 114 [LNIND 2005 AP 486]; H C Nagappa v. Thairnnisa, AIR 2006 Kant 112 [LNIND 2005 KANT 594]; K Balaraman v. Pattamal, AIR 2006 Mad 260 [LNIND 2006 MAD 966]; N G Vigneshwara Bhat v. P Srikrishna Bhat, AIR 2006 Kant 322; Parasa Ranga Rao v. Mathe Sanjeeva Rao, AIR 2006 AP 366 [LNIND 2006 AP 605]; Ganga Ram v. Kamal Chand, AIR 2006 Raj 17; Jawahar Lal Wadhwa v. Haripada Chakravorty, AIR 1989 SC 606 [LNIND 1988 SC 515]. 87. Shobharaman v. Totaram, (1949) Nag 959; Ranchod v. Manubhai Zipru, AIR 1954 Bom 153 [LNIND 1953 BOM 15]. See also Ekudashi v. Ganga, AIR 1981 All 373, wherein it was held that a person can take advantage of part performance doctrine even if he has not paid the consideration in full. 88. Sulleman v. Patel, AIR 1933 Bom 381; Bechardas v. Ahmedabad Municipality, AIR 1941 Bom 346. See aslo Bhagwati Lal v. Krishna Chandra, AIR 1994 Raj 331 (NOC). 89. M Mariappa v. AKSATYANARAYANA, AIR 1984 Kant 50 [LNIND 1983 KANT 47]. 90. Jacob v. Thomas Jacob, AIR 1995 Ker 249 [LNIND 1994 KER 263]. 91. Nathu lal v. Phool Chand, AIR 1970 SC 546 [LNIND 1969 SC 408]. 92. K K Adalakha v. Amrish Sehgal, AIR 2010 (NOC) 1118 (P&H). 93. Indu Kakkar v. Haryana State Industrial Development Corpn. Ltd. and anor., AIR 1999 SC 296 [LNIND 1998 SC 1066]. 94. Sohan Lal v. Gulzari, AIR 1997 HP 12 [LNIND 1996 HP 11]; Kartikeya Mudaliar v. Singaram Pillai, (1956) 2 Mad LJ 515. 95. AIR 1970 SC 546 [LNIND 1969 SC 408]; (1969) 3 SCC 120 [LNIND 1969 SC 408]. 96. Shivayya v. Praveena, AIR 2008 Kant 157 [LNIND 2007 KANT 613]. 97. Madan Mohan v. Gauri Shanker, AIR 1988 MP 152 [LNIND 1987 MP 224]. 98. Balasaheb Manikraa Deashmukh v. Rama Lingoji Warthi, AIR 2000 Bom 337 [LNIND 2000 AUG 5]. 1.

Technicians Studio Pvt. Ltd. v. Lila Ghose, AIR 1979 SC 2425.

2.

Chaman Lal v. Surinder Kumari, AIR 1983 P&H 323.

3.

B Sitarama Rao v. Bibhisana Pradhan, AIR 1978 Ori 222 [LNIND 1978 ORI 25]; Garaj Narain v. Babulal, AIR 1975 Pat 58; Kuchwar Lime tone Co. v. Secretary of State, AIR 1936 Pat 372; Kalipada v. FG Jute Manufacturing Co., AIR 1927 Cal 365.

4.

Juan Chandra v. Rajani Kanta Pal, (1918) 22 Cal WN 22.

5.

See the amendment to The Transfer of Property Act, 1882, Act 48 of 2001.

6.

Kanti Chandraw v. Brojendra Mohan, AIR 1929 Cal 186; Jogendra Krishna v. Kurpal Harish, AIR 1923 Cal 63; Ganjendra v. Ashraff, AIR 1923 Cal 130; Chan E Maung v. Ah Til, AIR 1925 Rang 118; Peari Devi v. Naimish Chandra, AIR 1926 Pat 184; Bipin Behari v. Tin Cowry, (1911) 13 Cal LJ 271; Secretary of State v. Forbes, (1912) 16 Cal LJ 217; Karamath Khan v. Latchmi Atchi, 61 IC 675.

7.

Maung Tun Ya v. Maung Aung, AIR 1925 Rang 1; Po Tuk Maung v. Ma Le War, AIR 1925 Rang 102.

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Hari Pada v. Nirod Krishna, (1921) 33 Cal LJ 437; Mehar Ali Khan v. Aratunnessa, (1921) 25 Cal WN 905.

9.

Khankala Kunta v. Mandlem Giraviah, AIR 1926 Mad 757 [LNIND 1925 MAD 285]; Akli v. Daha, AIR 1928 AP 44; Hameshwar v. Pal Chandra, AIR 1928 Cal 754; Shyam Kishore v. Umesh Chandra, AIR (1920) 24 Cal WN 463.

10. Khogendra v. Sona Ben, (1915) 20 Cal WN 140. 11. Lalchand v. Lakshman, (1904) ILR 28 Bom 466; see however Balasaheb Manikraa Deashmukh v. Rama Lingoji Warthi, AIR 2000 Bom 337 [LNIND 2000 AUG 5], wherein it was held that part performance is available to the defendant even if the suit for specific performance was dismissed. 12. Kalipada v. FG Jute Manufacturing Co., AIR 1927 Cal 365; Mahim Chandra v. Eshak, AIR 1927 Cal 954. 13. Pitambair Gain v. Ram Charan, AIR 1924 Cal 483; Maung Po Kwe v. Maung Po Thin, AIR 1929 Rang 251. 14. A Lewis v. M T Ramamurthy, AIR 2008 SC 493 [LNIND 2007 SC 1284]; Karm Chand v. Labb Chand, AIR 2009 (NOC) 868 (Pun); Sadashiv v. Eknath, AIR 2004 Bom 378 [LNIND 2004 BOM 438]; Rambhau Namdeo Gaire v. Narayan Bapuji Dhotra, (2004) 8 SCC 614 [LNIND 2004 SC 839]; SP Munnuswami Gounder v. Ersu Gounder, AIR 1975 Mad 25 [LNIND 1974 MAD 344]; NP Tripathi v. Damyanti Devi, AIR 1988 Pat 123. 15. Stoneware Pipe v. SFM Cov State, AIR 1972 Raj 83; Vora Mull v. Manoranjan, AIR 1970 Guj 22; Delhi Motors v. Basurkar, AIR 1968 SC 794 [LNIND 1968 SC 2]; Ram Gopal v. Custodian, AIR 1966 SC 1438 [LNIND 1966 SC 4]; Motilal v. Jaswant Singh, AIR 1964 Raj 11 [LNIND 1963 RAJ 154]; Sardari Lala v. Shakunala Devi, AIR 1961 Punj 378; Dhammulal v. Mohamedbhai, AIR 1955 Nag 306; Kanhaiya Lal v. Jerome DCOSTA, AIR 1955 Nag 302; Hari Prasad v. Abdul Haque, AIR 1951 Pat 160; Bajrang Gopi v. Rup Narian, AIR 1949 Pat 464; Bholai Phukan v. Lakhi Kanta, AIR 1949 Assam 8; Raghav v. Gopal Rao, AIR 1942 Mad 125; Ramrao v. Purnanand, AIR 1940 Bom 281; Pramod Kumara v. Dantmara Tea Co., AIR 1940 PC 1; Kashinath v. Makchhed, AIR 1939 All 504. 16. Rampratap Kayan v. Natural Petroleum Co. Ltd., AIR 1950 Cal 23 [LNIND 1949 CAL 53]. 17. B Sitarama Rao v. Bibhisana Pradhan, AIR 1978 Ori 222 [LNIND 1978 ORI 25]; Garaj Narain v. Babulal, AIR 1975 Pat 58; Kuchwar Lime Tone Co. v. Secretary of State, AIR 1936 Pat 372; see also Mastram v. Ma Ohn, AIR 1934 Rang 284, wherein the court granted a declaration of right to the person claiming to be transferee and Sulleman v. Patel, AIR 1933 Bom 381, where a person having taken possession under an unregistered lease was held accountable for rent and damages. 18. Ram Gopal v. Custodian, AIR 1966 SC 1438 [LNIND 1966 SC 4]; SN Banerjee v. Lime and Stone Co. Ltd., AIR 1941 PC 128; Osman v. Hemanta, (1969) 74 Cal WN 355; Maung Ba v. Maung Kywe, AIR 1928 Rang 124. 19. Ambaben Waghubhai Haribhai Desai v. Baldevbhai Becharsinh Vaghela, AIR 2010 Guj 17 [LNIND 2009 GUJ 318]. 20. Achayya v. Venkata Subba Rao, AIR 1957 Andh Pra 854; Akram Mea v. Secunderabad Municipal Corp., AIR 1957 AP 859; Maruti v. Krissna, AIR 1967 Bom 34 [LNIND 1965 BOM 15]. 21. Etah Municipality v. Moradhuj, AIR 1940 All 340; Ramchunder v. Maharaj Kumar, AIR 1939 All 611; Kaur Ram v. Chaman Lal, AIR 1934 Lah 751; see also Babu Ram v. Basdeo, AIR 1982 All 414, wherein it was held that where a person in possession of the property in part performance of the contract is disposed illegally, by some persons claiming under the transferor, the person so disposed can go to the court as a plaintiff. 22. Venkat Dhannaji v. Vishwanath, AIR 1983 Bom 413 [LNIND 1982 BOM 304]; see also Krishnamoorthy v. Paramsiva, AIR 1981 Mad 310 [LNIND 1981 MAD 132]; see Delhi Motors Co. v. Basurkar, where the question was kept open by the Supreme Court; see also Padmalabha v. Appalanarasamma,AIR 1952 Ori 143. 23. Savarkundla Nagarpalika v. Maninagar Niwas Sahakari Mandhi Ltd., AIR 1981 Guj 243 [LNIND 1981 GUJ 40]. 24. There is a conflict of judicial opinion on this point see Yenkanna v. Yellanna, (1975) 1 Kant LJ 35; Sitaram v. Tularam, AIR 1989 MP 128 [LNIND 1988 MP 184]; Bhulkoo Ghaslya v. Hiriyabai, AIR 1949 Nag 410; see also SE Munnuswami v. Erusa Gounder, AIR 1975 Mad 25 [LNIND 1974 MAD 344]; UN Sharma v. Puttegoda, AIR 1986 Kant 99 [LNIND 1985 KANT 122]; Vasundhara Bhalla v. Hairdas Bhagat, AIR 1995 Mad 172 [LNIND 1994 MAD 490]. 25. AIR 1986 Kant 99 [LNIND 1985 KANT 122]. 26. Hemraj v. Rustomji, AIR 1953 SC 503. 27. Ranchod v. Zipru, AIR 1954 Bom 153 [LNIND 1953 BOM 15]; Balaram Jairam v. Kewalram, AIR 1940 Nag 396; Bobby Suramma v. P Chandramma, AIR 1959 Andh Pra 568; Karunakar Das v. Mahakuren, AIR 1960 Ori 170 [LNIND 1959 ORI 11]; see also Jagat Bhushan v. Panna Lal, AIR 1941 Cal 287. 28. Piru Charan Pal v. Sunitnony Nemo, AIR 1973 Cal 1 [LNIND 1972 CAL 169]. 29. Srikakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 PC 95. 30. Audinarayudu v. Mangamma, AIR 1943 Mad 706 [LNIND 1943 MAD 158]. 31. Nanjedevary v. HV Rama Rao, AIR 1959 Mys 173. 32. Narendra Bhadur Tandon v. Shankar Lal, AIR 1980 SC 575 [LNIND 1980 SC 33].

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(IN) Poonam Pradhan Saxena : Property Law 33. Roop Singh v. Ram Singh, AIR 2000 SC 1485 [LNIND 2000 SC 521]; Mohan Lal v. Mirza Abdul Gaffar, AIR 1996 SC 910 [LNIND 1995 SC 1293]; Raju Roy v. Kashi Nath Roy, AIR 1956 Pat 308. 34. Ram Kumar Agarwal v. Thawar Das, (1999) 7 SCC 303 [LNIND 1999 SC 725]; Hirala Agarwal v. Bhagirathi Gore, AIR 1975 Cal 445 [LNIND 1975 CAL 118]; St Francis Xaviers Church v. Veralakshmi Ammal, (1976) 1 Mad LJ 230. 35. Piru Charan Pal v. Minor Sunitmoy Nemo, AIR 1973 Cal 1 [LNIND 1972 CAL 169]. 36. Ambika Pada Choudhary v. Radha Rani, 83 Cal WN 527. 37. See The Transfer of Property Act, 1882, s. 53A;Hemraj v. Rustomji, AIR 1953 SC 503. 38. See The Transfer of Property Act, 1882, s. 3; see also under ‘actual possession as constructive notice, ch1;Mahadei Halua v. Ram Krishna, AIR 1960 Pat 354. 39. Asharam v. Bhanwarlal, AIR 1974 Raj 188. 40. Prova Rani v. Lalit Mohini, AIR 1960 Cal 541 [LNIND 1959 CAL 218]. 41. (2003) 4 SCC 705 [LNIND 2003 SC 371]. 42. Ariff v. Jadunath, AIR 1931 PC 79; Mian Pir Bux v. Sardar Mohamad Tahar, AIR 1934 PC 235. 43. See the Registration Act, 1908; see The Transfer of Property Act, 1882, s. 53A as amended on 24 September 2001. 44. An agreement to transfer land by a client to Mukhtiar in contravention of the, s. 28 see Ranjhari v. Gokul Singh, AIR 1930 Pat 61; a sale in contravention of the AP Scheduled Areas Land Transfer Regulation 1959 s. 3(1)(a), see Goddam Narssa Haddy v. Collector Adilabad, AIR 1982 Andh Pra 1 ; an agreement of sale in respect of the land of the service Inam in contravention of the Madras Hereditary Village Offices Act, s. 5 see Muthabathula Arjayya v. Rambala Vebkata Surya Gopal Krishnamurthy, AIR 1974 Andh Pra 240. 45. Chetan v. State of Rajasthan, AIR 1984 NOC 295 Raj; Meram Pocham v. The Agent of the State Government, AIR 1978 AP 242 [LNIND 1977 AP 288]. 46. Sadhu Mehar v. Raj Kumar Patel, AIR 1994 Ori 26 [LNIND 1993 ORI 143]. 47. Akram Mea v. Secunderabad Municipal Corp., AIR 1957 Andh Pra 859; Sitaram v. Corpn of Calcutta, AIR 1956 Cal 18 [LNIND 1954 CAL 141]; Jitendra Nath v. Baduria Municipality, AIR 1967 Cal 423 [LNIND 1966 CAL 199]. 48. Bank of Upper India v. Arif Husaain, AIR 1931 All 59. 49. Karnataka Traders Hubli v. Hiren Shamji Karamsey, AIR 1987 Kant 204 PMNILKANTA Ayyar, AIR 1954 Mad 537 [LNIND 1953 MAD 165].

[LNIND 1987 KANT 98]; Jankiram Aiyar v.

50. Lalitha Prasad v. Sarnam Singh, AIR 1933 Pat 165. 51. Chandnee Widya Vati Madden v. CL Katial, AIR 1964 SC 978 [LNIND 1963 SC 77]; Motilal v. Nanhelal, AIR 1930 PC 287. 52. Nathulal v. Phool Chand, AIR 1970 SC 546 [LNIND 1969 SC 408]; Ermma v. Parwatamma, AIR 1972 Mys 121;Rajendra Nath v. Gaur Gopal, AIR 1971 Cal 163 [LNIND 1970 CAL 74].

End of Document

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 3

CHAPTER 3 Of Sales of Immovable Property “SALE”

Section 54. “Sale” defined.— “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.— Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 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. It does not, of itself, create any interest in or charge on such property.

DEFINITION OF A SALE Sale is defined under the Act as a transfer of ownership1 in exchange for a price paid or promised or part paid and part promised. As said earlier, an owner has three basic rights over his property, a right of title, an exclusive right to possess and enjoy the property and an exclusive right to alienate it. In a sale of property, all these rights are conveyed by the owner with his free consent2 in favour of the transferee who is called a buyer. No rights remain with

(IN) Poonam Pradhan Saxena : Property Law

the seller, thus, the transfer of this totality of rights is called an absolute transfer. In contrast, a lease and a mortgage are transfer of a right in the property, but not absolute transfers. For instance, in a lease, there is a transfer of a right to possess and enjoy the property, but the title and a right of alienation remain with the owner. Similarly, in a mortgage, what is transferred is a right to cause the property to be sold in the event of non-payment of loan by the mortgagor in favour of the mortgagee. In a sale, all the rights are transferred in favour of the transferee. Whether a transaction amounts to sale or not would depend on the substance of the transfer. The transaction may be described as a sale but if it does not convey all the rights in favour of the buyer, it would not be a sale. For instance, the intention of the parties in a transaction, which, though described as a sale with consideration, is in fact a security for the money, the transaction is not a sale but a mortgage.3 A power of attorney is not a sale.4 Sale and a Hire-purchase Agreement A transaction of a sale is different from a hire-purchase agreement. A hire purchase agreement may culminate in a sale, but till it does so, there exists a right in favour of the transferor to rescind the agreement and take back the possession of his property. Secondly, while payment through instalment is an acccepted feature of a hire purchase agreement, the terms of payment of consideration in a sale are purely dependent upon the agreement between the parties. Sale and Exchange Sale is the transfer of ownership in a property in exchange for a price that is generally understood as money, but in an exchange there is a transfer of ownership in exchange for something that is not money. For instance, A,sells a house to B for Rs 90,000. This would be a sale. But, if A exchanges his house for the land of B,this would be an exchange. Therefore, a transfer of a land in return for work done or for a person’s maintenance or a claim for betel expenses would be an exchange, as the consideration here cannot be termed as money. The distinguishing feature between a sale and an exchange is that in a sale a right of pre-emption may exist, but it cannot exist in case of an exchange.5 Essentials of a Valid Sale The essential elements of a sale are: (i) parties to a sale; (ii) subject matter of sale; (iii)price; (iv)mode of executing a sale. Parties to a Sale The parties to a sale are—the transferor who is called a seller, and the transferee who is referred to as the buyer. A contract of sale must be based on a mutual agreement between the Page 2 of 42

(IN) Poonam Pradhan Saxena : Property Law

seller and the buyer.6 The transferor or the seller must be a person competent to contract, i.e., he must be a major and of sound mind, and should not be legally disqualified to transfer the property. A minor or a person of unsound mind is incompetent to transfer his own property despite being its owner, but a transfer by a mentally challenged person during lucid intervals is valid. Statutory incompetency refers to an incompetency imposed under law or a statute. When a person is declared as an insolvent, his property vests in the official receiver, and he is incompetent to transfer the same. Similarly, a judgment debtor is not capable to sell his property that is to be sold in execution under the order of the court. The property cannot be sold when it is under the management of the Court of Wards. Authority to Dispose The transferor should either be the owner of the property or should have an authority to dispose of it. For instance, the karta of a joint family property is authorised to transfer the property under certain specified circumstances.7 Similarly, the guardian of the property of a minor is empowered to sell it with the permission of the court, and without such permission the sale would be invalid.8 An agent having a power of attorney to sell the property can also sell it without being the owner of the property. Where the sale was executed after getting a general power of attorney, without obtaining the requisite permission of the court, the sale deed is invalid and would not confer any title on the transferee,9 but if the Power of Attorney executed in favour of the holder expressly authorizes him to transfer the property he would be a competent seller.10 Buyer The transferee must be a person competent to receive a transfer in his favour. He should not be subject to a legal disqualification. For instance, an actionable claim under s. 136 cannot be purchased by a judge, legal practitioner or an officer connected with the court. Similarly, an officer performing an official duty in connection with the sale of the property cannot purchase the same. A minor is a competent transferee in a transaction of a sale. Similarly, a mortgage or a gift can be executed in favour of a minor, but a minor cannot take a lease in his favour, as a lease has to be executed by both the parties. A lease in favour of a minor is therefore, void.11 Subject Matter of a Sale Section 54 only governs the sale of immovable property. Immovable property can be tangible or intangible. Tangible property is one that can be touched, such as a land, house, a tree etc., while intangible property refers to property that cannot be touched such as a right of fishery, a right of way etc. The property must be sufficiently identified. In a suit for declaration of title of the property, Page 3 of 42

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the controversy was with respect to the identity of the property.12 There was a mistake in the plot number. The court held that as both boundaries and plot number were given in the sale certificate, a mistake in the plot number must be treated as a mis-description which did not affect the identity of the property sold. Rather, it is intrinsic evidence in proving that seller wanted to convey the right and title in the suit property to the buyer. If there is no sale, there is no need for an agreement to be executed to that effect on the stamp papers. In Rail Vihar Kalyan Sahkari Awas Samiti v. State of Uttar Pradesh,13 a co-operative group housing society and its members filed a writ against additional chief executive officer, Noida, by which the Noida directed the individual members to execute a tripartite agreement with the welfare societies/co-operative society as lessee and NOIDA as lessor for sale of superstructure and sublease deed for respective flats, apartments, residential accommodation allotted by the society to its individual members and restraining them from charging stamp duty on execution of tripartite deed. Noida had issued a notice to flat owners to execute the deed through their respective bodies by a specific date, failing which, the flat owners were to be declared unauthorised occupants, on whom penalty was to be charged. Deciding the writ petition in the favour of the flat owners, the court held that the societies do not have corpus and the entire consideration for lease was paid by the contributions received from the members. They constructed these flats/apartments under the self-finance arrangement in which the amount was paid by allottee member in installments. There was no sale of land or superstructure in their favour and thus, the direction to execute a tripartite transfer deed which includes sale of superstructure and the payment of stamp duty on the said document, was grossly arbitrary and violative of Art 14 of the Constitution. Price Price,14 in the ordinary sense connotes money consideration for the sale of property.15 Where, instead of price, some other valuable consideration is kept, the transaction is not a sale but can be an exchange or a barter.16 Where the consideration is money but is not specific, the transaction would still be a sale. Thus, if the transaction on the face of it is complete, it cannot be regarded as a mere agreement only on the ground that the price is unascertained at that time.17 A compromise,18 a decretal amount,19 an advance made by one person to another,20 or an agreement to protect and defend the property at the purchaser’s cost,21 is a good consideration for sale. Likewise, a family settlement is a valid consideration for an agreement to sell.22 Where a son-in-law executed an agreement for sale in favour of his mother-in-law in consideration of a family settlement, it was held that it amounted to a valid consideration for the sale.23 An agreement to maintain the transferor,24 or not to contest a suit,25 or to file a suit for redemption and bear all its costs,26 cannot be called price as is understood under this section, and therefore, if these are the considerations, the transaction would not be a sale. Similarly, a transfer effected where the consideration is the work done in clearing and sinking a well,27 or for the satisfaction of charge of maintenance,28 or in lieu of kharcha-e-pandan29 is not a sale, Page 4 of 42

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but a transfer of immovable property in lieu of dower of a Muslim woman, can be a sale.30 Price Paid or Promised The ordinary rule governing sale is that payment of consideration is simultaneous with the time when the conveyance is executed by the seller. This rule can be deviated from in case of an agreement to the contrary by the parties.31 For instance, A agrees to sell the land to B, and executes a sale deed for the same. Ordinarily, the buyer would pay the consideration on the same day. However, if they agree to pay the entire consideration or part of it at the time of the registration of the document, and partly at the time of the execution or even subsequent to registration, this would be a valid sale. Price is the essence of the contract of sale, but the time for payment of it is not the essence of the sale, unless the contract stipulates so.32 Therefore, it is not mandatory that payment of the price should be at the time of the execution of the sale. Price can be paid even before, at the time or even subsequent to the completion of the sale. It is also not necessary that the whole of the consideration or price should be paid at one time. This would depend purely on the terms and conditions agreed upon as between the parties. If the recitals are indecisive, surrounding circumstances or conduct of parties are a relevant factors33 to decide the validity of the sale. The term ‘paid or promised’ shows that a sale is complete on registration even though price has not been paid but is promised to be paid.34 Thus, payment of price is not a sine qua non to the completion of sale.35 A promise that price will be paid within a year is valid,36 but if it is not paid the seller cannot set aside the sale37 or sue for getting the possession back.38 His only remedy would be to sue the buyer for the price.39 However, where the intention of the parties was clear that the title in the property would pass in favour of the transferee only after the payment of complete consideration, then notwithstanding the fact that the sale deed has been registered, the transfer of ownership would not take place till the payment of the total price.40 The term ‘paid or promised to be paid’ also suggests that this promise to pay must be genuine. The buyer cannot escape his primary liability to pay the consideration and if he tries to evade payment by dubious means, no title would pass from the seller to the buyer. For instance, if the buyer pays money through a cheque which is dishonoured, the sale would not take effect.41 The same rule would apply if there is an intention to the contrary expressly incorporated in the contract, that the title would not pass unless the payment has been made in full, or if consideration is paid in advance. This would entitle the purchaser to sue for possession.42 Notwithstanding an admission in the sale deed that consideration has been received, it is open to the seller to prove that no consideration has actually been paid.43 A seller may retain the deed pending payment of price; and in that case the ownership will not pass, and no transfer would take place until the price is paid and the deed delivered.44 Price Mandatory for Sale Price is of the essence of the contract for sale.45 In absence of price there cannot be a valid sale. Price should either have been paid or promised to be paid. Adequacy of price is not mandatory. It can be lower46 or higher than the market value, yet the sale would be valid, but evidence can be adduced that in fact the transaction is not a sale but a gift,47 or even a Page 5 of 42

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mortgage, more so where the price, on the face of it, appears to be grossly inadequate. There is no enforceable contract unless the price is fixed and despite the registration of the sale deed, no title would pass. A transfer merely to enhance the status without any price is not a valid sale.48 A purchase of 33 years net income by way of price is valid.49 Where no price is paid but the transfer is a reward for past or future cohabitation, it is not a valid sale.50 Evidence is also admissible to show that a deed in the form of sale was, in fact, intended to operate as a gift. Formalities for Effecting a Sale Section 54 lays down a specific method for the execution of a sale deed with respect to immovable property and completion of sale. Generally speaking, in a sale, the three requirements of law are that transfer of property by sale must take place with the help of a validly executed sale deed, by the transferor in writing, is properly attested, and registered.51 Till all three formalities are complied with, no right passes from the seller to the buyer. However, in case where the property is of nominal value, the sale of property can be completed by a simple delivery of possession of such property. In such cases, due to the small value of property, the formality of writing, attestation and registration is dispensed away with, but this does not mean, that immovable property whose value is less than Rs 100 cannot be transferred by adhering to these three requirements. It is only that writing, attestation and registration in such cases is optional.52 The test is the value of the property and not the amount of consideration or the price. If the property is worth more than hundred rupees, but is being sold for less than this value, the modalities of writing, attestation and registration would be necessary. The above-mentioned requirements of executing a formal sale deed so as to confer a valid title in favour of the transferee are not applicable in case of sale of property at a court auction and a certificate of sale issued by the court is enough as the purchaser’s document of title.53 Rules governing only Immovable Property The rules specified in s. 54 govern the transfer of immovable property only by sale and not movable property.54 Registration Sale of tangible immovable property of the value of Rs 100 and upwards or in case of a reversion or other intangible things as aforesaid, can be made only55 in writing. The deed must be properly attested and should also be registered.56 Compulsory57 affixing of photographs, finger prints, sign etc. purport to restrict or minimize forgery or fraud.58 If by a single document, both movable and immovable properties are transferred, and the value of the immovable property is more than Rs 100, such transfer must take place with the help of a written, attested and registered instrument.59 Rights and title to the property cannot pass by an admission of the seller, when the statute requires a deed.60 Similarly, recitals in the deed, or references in petitions to the officials,61 or even a mutation of names62 is not helpful and a properly executed and registered document must be shown. However where the original Page 6 of 42

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registered sale deed is lost, then, in such cases, secondary evidence is admissible to prove registration and the contents of the deed.63 An agreement to reconvey property need not be registered.64 Where the property is situated in one area, a person cannot avail the jurisdiction of a registering authority in another area by simply including a yard of land in the latter’s area without any real intention of selling it.65 The onus of proving that it is a fraudulent registration is on the one who alleges it.66 Where Value of Property is Less than Hundred Rupees In the case of tangible immovable property of the value of less than Rs 100, transfers may be made either by a registered instrument67 or by delivery of the property.68 In such cases the transfer is completed by the delivery of possession of the property.69 Registration and Transfer of Ownership As aforesaid, writing, attestation and registration are the mandatory requirements for the completion of a valid sale of property, whose value is more than Rs 100. Transfer of ownership cannot take place without registration,70 and it concludes on registration unless there is a contrary intention expressed in the contract. Therefore, a suit for pre-emption that can be filed only after the conclusion of the sale, if filed before registration, will be premature.71 Thus, where the sale deed was executed on 28 July 1989, but was registered on 22 June 1992, a pre-emption suit filed on 18 June 1992, was held by the Calcutta High Court as premature.72 Once registration takes place, the ownership passes with effect from the date of the execution of the sale deed,73 unless there is an intention of the parties to the contrary.74 Ownership under a deed for sale executed before but registered after a suit was filed with respect to this property, will not be hit by lis pendens.75 Similarly, a subsequently registered deed will not affect a former executed sale deed, though registered later.76 Date of Execution not the Determining Criteria In case of parallel claims over the ownership of the property, the date of execution of the sale deed is not the sole determining criteria for determining the ownership issues. In a case from Gujarat,77A claimed to purchase a land on 25 July 2002. B also had a parallel claim, through a written deed dated 16 July 1999. The court held that the ownership issues cannot be decided merely from the dates of the execution of the sale deeds. Intention of the Parties The general rule of passing of ownership on registration is subject to the intention of the parties expressed in the contract. Where the intention cannot be gathered from the document78 or appears ambiguous,79 extraneous evidence is admissible for clarity. An intention that the deed would be void unless the price is paid in a fixed time is valid,80 and accordingly, if the price is not paid within a specific time, the sale would become invalid. Similarly, if in accordance with the intention of the parties a contract of sale is to be treated as a sale deed if certain conditions are fulfilled, it will be so treated on the fulfillment of those conditions81 or if Page 7 of 42

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the intention was that transfer of ownership is to take place on the registration, the ownership in the property passes on such registration even though the possession has not been delivered82 or the price has not been paid.83 Consequences of Lack of Registration If there is no registration of the sale deed, no property passes as there is no transfer.84 Execution of a mere power of attorney or an agreement of sale without a registered conveyance would not transfer ownership in the property.85 An admission that the land has been sold will not operate as an estoppel so as to do away with the necessity for a registered conveyance.86 Title to the land does not pass by mere admission when the Act requires a conveyance.87 The law gives no protection to a person claiming a right under an unregistered alleged sale.88 An unregistered sale deed can be used as evidence as to character of possession of the property,89 despite its value,90 such as adverse possession91 or of co-ownership.92 Where an unregistered sale deed was accompanied by a money receipt stating that the transferor had received a specific amount as consideration for the land that he had sold to B, without any registration or revenue stamp, it was held that the document did not affect a valid sale in favour of B. In such cases even if possession were delivered to B, he would not be entitled to the benefit of the doctrine of part performance.93 Delivery of Tangible Immovable Property Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.94 Possession of house can be given by delivery of keys,95 and that of land by going over to the land.96 An equity of redemption of the value of less than Rs 100 can be delivered by showing the boundaries97 or some other overt act signifying the change in possession.98 Where the purchaser is already in possession of the property then delivery of possession is complete if the seller by appropriate acts or declarations converts permissive possession into possession as an owner.1 In case of a usufructuary mortgagee in possession, possession can be delivered by the seller, by doing all he can under the circumstances by indicating finally and unambiguously his intentions to pass the title.2 Unregistered Sale Deeds If there is an unregistered sale deed, transfer of tangible immovable property worth less than Rs 100 can be validly effected by delivery of possession,3 which may be subsequent to the execution of the deed.4 Since transfer of immovable property worth less than Rs 100 is statutorily permissible without a registered document, such unregistered sale deed is admissible in evidence.5 In absence of delivery of property effecting a transfer of tangible immovable property worth less than Rs 100 the transfer must be effected by a registered instrument.6 An unregistered instrument unaccompanied by possession is of no avail,7 and would not support a suit on title,8 but the party is not precluded from proving the sale from delivery of the property.9 Page 8 of 42

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Where there is a sale of property worth less than Rs 100 with delivery of possession of property the effect of the transaction is not destroyed because an unregistered sale deed was executed at the same time, the unregistered sale can be referred to in order to ascertain the nature of the possession of the purchaser.10 Completion of oral sales Tangible immovable property transferred through an oral contract of sale is complete when either the possession is delivered11 or the price has been paid.12 Delivery of possession will complete the sale even if the price has not been paid.13 Law recognises only two modes of transfer by sale, one by registered instrument and the other by delivery of possession of property. An oral sale that is not accompanied by delivery of possession of property therefore is not permitted under the TP Act.14 Contract of sale There can be an agreement of sale before the execution of a sale deed.15 A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.16 There is a conflict of judicial opinion on the issue, whether a contract for sale, which is not in writing nor signed by the parties, is valid. The Jammu and Kashmir High Court has held that it is not valid,17 however, the Andhra Pradesh High Court has held that an agreement of sale can be even oral18 and would be as valid as a written agreement. In a recent decision, the same court has also held that even if it is in writing but is not signed by the purchaser, it does not mean that there is no concluded contract.19 A contract of sale is different from a sale, as it need not be registered. However, it does not create a charge or an interest in the property. It is merely a document or an agreement that gives a right to obtain another document, i.e., a sale deed. Therefore, it does not require registration.20 However, some equities do arise in favour of the transferee. For instance: (i) Where, despite an agreement of sale, the property is transferred to another person, the subsequent transferee with notice of the earlier transaction holds the property in trust for the prior agreement holder.21 (ii) A suit for specific performance can be granted on the basis of an agreement of sale.22 But if the contract of sale is subject to future negotiations for finalisation of more terms of contract for sale,23 such a suit cannot be granted. (iii)A contract for sale does not create a title in immovable property. However, if in furtherance of this contract, possession has been delivered to the transferee, and if other conditions laid down in s. 53A are satisfied, the transferee is entitled to protect his possession and is also empowered to restrain a tresspasser from interfering with his peaceful possession of the property.

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In Ramesh Chand Ardavatiya v. Anil Pangwani24 the owner of a piece of land entered into an agreement for its sale with B. On payment of the advance amount, he handed over the possession to B but failed to execute a sale deed in his favour.B constructed a boundary wall, but this land was encroached upon by the trespassers on behest of A. B filed a suit in a court of law for a declaration that he was in peaceful possession of the property and sought a permanent injunction from the court restraining the tresspassers from interfering with his peaceful possession of the property. The court held that B was entitled to protect his possession. They directed that A should assert his title through due process of law and was restrained from taking the law in his own hands. The court observed, A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties; it does not of itself create any interest in or charge on such immovable property. However, still if a person who entered into possession over immovable property under a contract for sale and is in peaceful and settled possession of the property with the consent of the person in whom the title vests, he is entitled to protect his possession against the whole world, excepting a person having a title better than what he or his vendor possesses. If he is in possession of the property in part performance of the contract for sale and the requirements of Section 53A are satisfied, he may protect his possession even against the true owner.

A contract of sale can be completed and would be valid upon execution by the seller and it is not necessary that the agreement to sell must have been signed by the purchaser.25 Contract of Sale does not Create a Charge An agreement of sale does not of itself create any interest or charge on such property26 even after a decree for specific performance has been passed with respect to it.27 All that a person gets is a right of litigation on this basis.28 A person who has contracted to buy the land is not entitled to mense profits29 or to apply to set aside an execution sale of the same property.30 Where the land is compulsorily acquired and the person who has entered into a contract to purchase it sues for specific performance of the contract, he is not entitled even to compensation.31 Where there is a contract for sale of unascertained goods the requisite permission for cutting and felling trees can be obtained only by the owner of the trees, and not by a person who has entered into an agreement to fell them.32 In absence of a registered sale deed no one can call himself an owner on the basis of an agreement to sell,33 but an obligation can be annexed to the property, which is enforceable against a voluntary transferee.34 An agreement to sell will prevail over attachment before judgment made subsequent to such agreement to sell.35 Contract to Reconvey the Property The executant of the sale deed may incorporate an agreement for reconveyance of the property.36 However that depends purely on the terms and conditions agreed upon as between the parties. Therefore, in absence of any such clause, no inference can be drawn that the contract for reconveyance of land is included in any contract.37 If there are two separate deeds and it is stipulated in the subsequent deed, it can be proved as genuine.38 Once the sale is made absolute by a valid transfer the vendor is divested of the ownership of the property and does not retain any control or right over the property. Such a transfer cannot be annulled or Page 10 of 42

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cancelled unilaterally by the vendor by executing a deed of cancellation.39 RIGHTS AND LIABILITIES OF BUYER AND SELLER

Section 55. Rights and liabilities of buyer and seller.— In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold: (1) The seller is bound— (a) to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power: (c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto; (d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place; (e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents; (f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits; (g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing. (2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.

The benefit of the contract mentioned in this rule shall be annexed to, and shall go Page 11 of 42

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with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power: Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.

(4) The seller is entitled— (a) to the rents and profits of the property till the ownership thereof passes to the buyer; (b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the nonpayment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered. (5) The buyer is bound— (a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest; (b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto; (c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller; (d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due. (6) The buyer is entitled— (a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof; Page 12 of 42

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(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent.

GENERAL PRINCIPLE In the absence of a contract to the contrary,40 the buyer and the seller of immovable property respectively are subject to certain liabilities and have the rights or such of them as are applicable to the property sold. A contract to execute a sale deed containing the necessary stipulations is a contract for sale on conditions implied by the Act.41 The primary aim of laying down the rights and duties of the seller and the buyer in case of sale is to ensure fair dealings, and as far as possible, to minimise fraud and waste of the property. This section is applicable only in absence of a contract to the contrary. Thus, in absence of a clause in the contract requiring the seller to obtain a certificate from the Endowment department before effecting the purchase, his liability under s. 55 would not be attracted and there would be no obligation on his part to get the clearance of permission or exemption from the Endowment department of state for purposes of transferring the title of the property in question. 42 Duties of Seller Law imposes seven duties on the seller, six prior to the passing of ownership, and one after the title has passed in favour of the buyer, which are as follows: (i) Disclosure of material defects relating to property; (ii) Allowing the buyer to examine documents relating to property on request; (iii)To answer the related queries or questions of buyer; (iv)Execute a proper conveyance in favour of buyer; (v) To take care of property and related documents in between the date of contract to sell and actual execution of sale deed; (vi)To give possession to the buyer; (vii)

To pay rent or public charges due on the property till the date of the sale.

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Duty of Disclosure The seller is bound to disclose to the buyer any material defects (in the property or in the seller’s title thereto), of which the seller is aware and the buyer is not; and which the buyer could not, with ordinary care, discover. However, if the buyer either knows about these defects or could have known about it if he had acted as a reasonable prudent man, then there is no such duty on the seller. A failure to do that would be treated as fraudulent or a deliberate omission. For instance,A has a house that he professes to sell to B. The house has an underground drain, which makes the foundations weak. It would be a material defect, and if the seller fails to disclose it to the buyer, the buyer has a right to rescind the contract. Similarly,A has the title to a house X, but only as a trustee. He professes to sell the property to B. A is under a duty to disclose the fact that the property that he is trying to sell, though is in his name, is in fact, the property of a trust. It is a material defect in the title and must be disclosed to the buyer. A failure to do that would be fraudulent. The buyer’s omission to ask questions does not relieve the seller of his liability to disclose material defects.43 If the seller fails to do so, it would entitle the buyer to refuse to complete the sale.44 There is no duty to disclose such defects of which the buyer has actual45 or constructive notice,46 but a mistake with respect to a fact material to the property will make the agreement void.47 In Haryana Financial Corporation v. Rajesh Gupta48 the property was to be sold by way of an auction and for this purpose B had deposited the earnest amount wth the seller A, on a clear understanding by way of repeated correspondence indicating that A must ensure an independent approach road to the unit.A informed B that a clear cut passage/rasta has been provided to the unit. The passage in fact was not direct and was too narrow. Since A failed to provide the direct and independent adequate passage to the factory,B did not pay the rest of the consideration and A after forfeiting the earnest money invited fresh bids for the same. A division bench of J M Punchi and Surinder Singh Nijjar, JJ, of the Apex Court held that in light of s. 55 (1) (a) there was a clear duty on part of the seller to disclose a material defect, i.e., lack of an independent passage to the factory and they cannot be allowed to take advantage of their own wrong by forfeiting the earnest money deposited by B. Material Defect The defect must be such that if it was known to the buyer, his decision to purchase the property would have been fundamentally affected. Such defect may also hamper the enjoyment of the property. Non disclosure of a street alignment,49 a defect in title,50 or nonexistence of independent passage to the property,51 or a right of way of public on the property that is not visible from a mere inspection is a material defect. Defect in Title The primary duty of the seller is to convey a good title to the buyer and therefore, he is bound to disclose a defect in title, if any.52 However, the onus of showing a failure to disclose a defect in title is on the purchaser.53 For instance, a notice received by the seller for the demolition of the building that was the subject matter of sale as it was illegally extended, is a material defect both in property as well as of title. Similarly, a notice of acquisition of the Page 14 of 42

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property under the Land Acquisition Act, 1894, or titles saddled with an encumbrance,54 an easement,55 a party wall notice and award making owner liable for reconstruction of building,56 are material defects. A defect does not include a clear case of fraud or sale of property not belonging to the transferor.57 Productions of Documents of Title Generally, the law imposes a duty on the buyer to satisfy himself with respect to the competency of the transferor, and also whether there is a charge due over the property or not. In order to get good value for his money, he has to be vigilant, and the facility of inspection of all documents relating to the property is mandatory. Law recognises this and the seller is therefore, in law bound to produce to the buyer, on his request58 for examination all documents of title relating to the properties, which are in the seller’s possession or power. The term ‘possession or power’ suggests that he is under a duty to produce all documents that he possesses and can produce when the buyer requests it. Such documents should be made available within a reasonable time period.59 Law imposes a duty on the seller to produce documents for inspection by the buyer and not to give them to the buyer for good. Thus, he is not bound to deliver them to the buyer till he pays him the whole of the purchase money.60 Production of documents not in possession of the seller can be insisted upon only by an express term of the contract.61 Where, on the sale and purchase of the land the description in the contract affords a sufficient and satisfactory identification of the property sold without a plan, the buyer cannot, require at the expense of the seller, a plan to supplement the description.62 Seller Bound to Answer all Relevant Questions With or even without inspection of the documents relating to the property, if the buyer raises reasonable questions with respect to the property, the title of the seller or the encumbrances over the property, the seller is bound to answer the same. In fact he must answer to the best of his information all relevant questions63 put to him by the buyer in respect to the property or the title thereto.64 Failure to do so would entitle the buyer to rescind the contract. The contract may give a power even to the seller to expressly rescind the contract if such questions are put up to him that he is unwilling to comply with, yet the duty to make up his title is attached to him.65 Seller to Execute Conveyance The sale deed has to be executed by the seller. It is he who has to sign the deed. It is his signatures that are to be attested properly, and it is at his behest that the document has to be registered. Normally, till registration takes place, the ownership does not pass and therefore, upon the payment or tender of the amount due in respect of the price, the seller is under a duty to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place. An auction purchaser can seek issuance of the sale certificate in favour of his nominee and the vendor has to oblige.66 The payment of purchase money and the Page 15 of 42

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execution of the conveyance are presumptively contemporaneous acts.67 If the time is fixed and an unreasonable delay occurs, the proper course is to give notice, making time the essence of the contract.68 Both, the obligations to tender a conveyance69 and to pay the price at the time of the execution,70 are subject to a contract to the contrary. Seller to Take Care of the Property before Conveyance Once the contract of sale has been entered into and the seller knows that the property is going to be sold to the buyer, still he cannot be negligent towards the property. Thus, he is bound between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents. The position of the seller is like that of a trustee.71 He must keep the property in reasonable repair and protect it from injury by trespassers.72 The duty extends to protect the title deeds as well.73 Neglect to perform this duty will entitle the buyer to a claim of compensation. Seller to Deliver Possession Once the formalities from the side of the buyer are complied with, the seller has to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits. It is the duty of the seller and he cannot leave the buyer to get the possession himself,74 notwithstanding a condition in the sale deed that if no possession is given, the buyer may get it himself.75 Where the sale is through the court, then the court has to ensure delivery of possession of property even if there was no prayer to that effect by the buyer.76 The buyer can institute a suit for specific performance to get possession77 as the relief is inherent in a suit for specific performance of contract,78 but he is not entitled to compensation for the expenses incurred in obtaining the possession subsequent to the sale.79 The nature of possession to be given would depend on the nature of property in each case, unless any specific delivery is agreed to.80 If the seller is not in a position to give the possession of the property sold, the buyer is entitled to rescind the contract.81 When Possession has to be given Possession has to be given when the property passes82 to the buyer, which would generally be at the time of the execution of the sale deed.83 though it may vary from case to case. Payment of Price and Handing over of Possession Ordinarily, it is understood that the seller can retain possession till the money is paid by the buyer. However, it has been held that the transferor is not entitled to retain possession even where the purchase money has not been paid.84 The right of the purchaser to get possession and the right of the seller to get the purchase money may be enforced as part of a single action,85 and if the buyer sues for possession he may be required to deposit the balance amount in the court failing which his suit will be dismissed.86 In a suit for specific performance of the contract for delivery of possession of the property by the purchaser, if the seller takes the plea Page 16 of 42

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that the remaining money had not been paid, the purchaser must show that he is willing to pay the rest of the consideration. The court can ask for proof of this intention on part of the purchaser. If besides the averment in the plaint the purchaser gives no evidence to show that the amount was kept ready and available, it would be presumed that she was not ready and willing to fulfil her part of the contract.87 Nature of Possession Delivery of possession of the property would depend on the nature of possession, i.e., if the property is in possession of the seller, he should vacate it and hand over the vacant possession to the buyer. Where the property is in occupation of any other person, then, as far as possible, the seller must get it vacated and give vacant possession to the buyer more so in case of agricultural land88 or even where the land is in occupation of a trespasser.89 However, the buyer is entitled to only symbolic possession and not an actual personal occupation when the property is in occupation of a tenant90 or a usufructuary mortgagee.91 Seller’s Duty to Pay Public Charges The seller is bound to pay all public charges and rent92 accrued that are due in respect of the property up to the date of the sale or up to the date of possession, if the parties so agree.93 He is also under an obligation to pay the interest on all encumbrances on such property due on such date except where the property is sold subject to the encumbrances, or to discharge all encumbrances on the property then existing. Public Charges Public charges literally refer to financial or other liabilities such as tax liabilities to the statutory authorities94 and include government revenue95 and municipal taxes.96 The public authority levying the charge levies it on the owner, and the property and is not concerned with the rights of buyer and the seller inter se.1 The obligation, unless there is a contract to the contrary, is absolute.2 These statutory charges cannot be enforced against a buyer who purchases the property without notice of the same.3 Seller’s Duty to Deliver Property Free from Encumbrances Conveyance of a clear and a good title and delivery of property free from encumbrances, is the basic duty of the seller. If the sale deed contains a declaration that the property is sold free from encumbrances, the buyer takes it free from burdens.4 If an encumbrance which ought to have been paid by the seller, was paid by the buyer, the seller is liable to repay the same5 irrespective of whether the buyer was aware of such encumbrance or not,6 unless the buyer has expressly agreed to discharge it himself.7 The buyer is not bound to accept an indemnity from the seller and if he is dispossessed by the encumbrances he can sue for damages.8 The seller cannot take advantage of his own wrong, if, due to non-payment of interest since the contract of sale on the mortgage already created on the property the dues considerably increase, and he Page 17 of 42

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is not in a position to pay them.9 If it is not specifically mentioned in the sale deed that the property is sold subject to encumbrances, the seller is liable for all past incumbrances10 but this covenant does not run with the land.11 Where the buyer has to pay a higher amount to clear an encumbrance, he cannot recover the difference from the seller.12 Seller’s Duty to Obtain Permission for Sale from the Statutory Authority Alienation is a basic incident of ownership. However, in certain cases, an owner may have to seek necessary permission of the relevant authorities before he can sell theproperty. If the seller is required to obtain permission from the relevant statutory authority before effecting a sale, he is under a duty to obtain such permission13 or apply for such sanction.14 A failure to do that would entitle the buyer to rescind the contract.15 Covenant for Title The buyer has a right to receive a good title to the property and the seller shall be deemed to contract with the buyer that the interest which he professes to transfer to the buyer subsists, and he has power to transfer the same. A transferor cannot enforce for specific performance of the contract as against the buyer unless he gives him a title free from reasonable doubt16 and which a court would also accept as serious or sufficient.17 Refusal of the seller to give a title with an absolute guarantee entitles a buyer also from claiming specific performance of the contract of sale.18 If it turns out that the seller has no saleable interest in the property, he is liable for damages even if he is not guilty of fraud.19 Representation of a Higher Title A seller cannot give a higher title than what he has.20 If he professes to transfer personal occupancy rights, he is not liable if the buyer is evicted by the title paramount,21 but if he represents an absolute entitlement while he does not have it, he is liable in damages for breach of contract.22 Sale of non-transferable cantonment land as if he is absolutely entitled,23 or a land subject to an encumbrance sold as free from encumbrances,24 or sale of a mortgage debt under an invalid mortgage25 will make the seller liable for damages. Improper Description of the Property A covenant of title does not extend to the mis-description of property,26 but if a misdescription is discovered before the conveyance is executed, the purchaser is entitled to rescind the contract or claim damages27 where the mis-description is substantial and claim compensation only if it is minor.28 There may be a special covenant in the deed for compensation of errors which entitles a purchaser and even a sub-purchaser for damages.29 Buyer’s Duty to Inquire into the Title The courts have held that there is no duty cast on the buyer to inquire into the vendor’s title30 and mere knowledge or suspicion of the buyer about the defect in the title in his vendor does Page 18 of 42

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not prevent an express or implied covenant from operating.31 He may claim a return of the purchase money or sue for damages if he is dispossessed by reason of the defect in title.32 The strict rule of English law of the application of the doctrine of caveat emptor does not apply,33 and a buyer gets a further remedy in case of defects discovered after the conveyance.34 This covenant has nothing to do with the buyer’s incapacity to buy and there is no indemnity where a third person claims pre-emption.35 Two persons purchasing as co-tenants will have separate interests with reference to the implied covenant and can file separate suits.36 Contract to the Contrary An implied covenant may be superseded37 by a contract to the contrary38 with clear and unambiguous expressions.39 Such a contract cannot be oral as that is inadmissible in evidence.40 The onus of proving a contract displacing presumption of contract for title, is on the seller.41 An express stipulation to compensate the purchaser for defect in title does not exclude implied covenant for title and the vendee is entitled to maintain a suit for refund of the purchase money.42 Where a suit for money is based on an express covenant contained in the deed,43 or in case of an agreement to sell by a mortgagee when it does not extinguish the equity of redemption, the buyer is not liable for damages, but only to return of purchase money. Covenant for Quiet Enjoyment An express covenant for quiet enjoyment does not wipe out the statutory covenant for title44 but the usual express covenant for title includes a covenant for quiet enjoyment.45 A covenant to refund the purchase money in case of subsequent dispossession does not apply to an eviction by a pre-emptor.46 There is no breach of quiet enjoyment covenant where no possession was delivered and no subsequent dispossession.47 In case of express covenant for quiet enjoyment, limitation will run from the date of the disturbance.48 Sale by a Person in a Fiduciary Capacity Where a person makes the sale in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it. An implied covenant does not apply in case of a guardian selling on behalf of the minor.49 Benefit of the Covenant to Run with Land The benefit of the implied covenant annexes to and goes with the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. Thus, the covenant for title runs with the land50 and is also Page 19 of 42

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enforceable by a pre-emptor in whom the property vests.51 Consequences of Breach Any omission to make disclosure is fraud,52 and where a person discovers the material defect after the conveyance, he has to make out a case for fraud to set aside the sale.53 The measure of damages for breach of covenant of title is the market value of the land on the date of eviction.54 Delivery of Title Deeds Where the whole of the purchase money has been paid to the seller, he is bound to deliver to the buyer all documents of title relating to the property, which are in the seller’s possession or power.55 The right to the deeds goes with the land, which includes a right to kabuliyat and counterpart leases.56 Where the property is subject to an unregistered mortgage by deposit of title deeds, and the purchaser does not make any demand for the title deeds the purchaser would be guilty of gross negligence. He would be imputed with constructive notice of the prior mortgage and even an encumbrance certificate showing no mortgage does not help him.57 Delivery of Title Deeds in Case of Multiple Transferees In case the property is sold to more than one person, or the seller sells part of the property and retains part of it himself, a question may arise, as to whom should the title deeds be delivered. The law is that if the seller retains any part of the property comprised in such documents he is entitled to retain them all and where the whole of the property is sold to different buyers the buyer of the lot of greatest value is entitled to such documents. But the seller, and the buyer of the lot of the greatest value is bound upon every reasonable request by the buyer or by any of the other buyers as the case may be and at the cost of the person making the request, to produce said documents and furnish true copies thereof or extracts therefrom as he may require. In case the sales are at different times, the last purchaser will be entitled to all the documents.58 In the meantime, the seller or the buyer, as the case may be, of the lot of the greatest value, shall keep the said documents safe, uncancelled and undefaced unless prevented from doing so by fire or other inevitable accident. RIGHTS OF SELLER The corresponding rights of the seller are as follows: (i) to rents and profits till passing of ownership; and (ii) to payment of money in case the ownership passes before such payment. Rent and Profits

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Where the property is in occupation of the tenants or otherwise yielding income, the seller is entitled to the rents and profits of the property till the time ownership thereof passes to the buyer, despite an agreement to sell the property which passes no title to the prospective purchaser.59 Possession is to be given to the buyer when ownership passes.60 If buyer takes possession before completion of sale he will take rents and profits, but pay interest on the unpaid purchase money.61 Thus, the new owner has the use and possession of the property, and the former parting with this property has an interest on the price.62 However, if the ownership passes and the seller retains the possession, he is not entitled to interest63 on the unpaid money,64 and must account to the purchaser for the rents and profits of the land.65 The same person cannot enjoy both the rent and profits of the land as also the interest on the money.66 The rule that possession and interest are mutually exclusive is applicable to a case of compulsory acquisition, and owner is allowed interest on price from the date on which he is dispossessed.67 Payment of Money and Charge over the Property The seller is entitled to the full consideration as agreed upon as between the parties. The money must be paid within a reasonable time period unless a specific time has also been stipulated in the contract. It must be remembered that time is the essence of the contract if the contract says so, and a buyer would commit a breach of contract if he does not pay within the specified time. In a case from Andhra Pradesh,68 in an agreement to sell, it was stipulated that the buyer would pay the first installment of money by a specific date. The transferee made an oral assurance for the payment of money, but did not make any deposit. The court held that this oral assurance was not sufficient, and even a deposit of money after a court order does not indicate that he was willing to fulfil his part of the contract. Accordingly, a prayer for specific performance of the contract was denied to the transferee. Where the ownership of the property has passed to the buyer, but before the payment of the whole of the purchase money, the seller is entitled to a charge upon the property in the hands of the buyer. If the buyer transfers the property, even then this charge can be enforced against any transferee without consideration or any transferee with notice of non-payment for the amount of the purchase money or any part thereof remaining unpaid. The seller is also entitled for the interest on such amount or part of it from the date on which the possession has been delivered. A seller’s charge for unpaid purchase money comes into existence not at the date of contract for sale, but on the completion of the conveyance.69 The rule does not apply in case of oral sales70 or to lease71 and a transferor has no charge on the unpaid part of the consideration. A seller’s charge is not extinguished by execution of a promissory note for unpaid money.72 A sum of money kept with the vendee under a sale deed,73 or an agreement to pay an additional amount to be paid to the vendor if the property yielded higher income,74 or the reconveyed village by the mortgagee who has purchased the entire mortgaged property to the mortgagor,75 is a portion of the unpaid money and a charge on the property. A seller is not entitled to the Page 21 of 42

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interest on the unpaid purchase price if he does not deliver possession,76 but if the buyer accepts an alternative property in substitution to the original, the seller must be paid the interest on the unpaid money.77 The seller is not empowered to forfeit the earnest amount paid by the buyer without notice in case of non-payment of the balance amount by him, and without there being a clause in the contract to that effect. The court may direct the seller, to return the earnest with interest in such cases to the buyer.78 Lien Non-possessory The lien for the unpaid money is non-possessory,79 which means that a seller cannot retain possession in lieu of unpaid price.80 This lien is not personal and is transferable. It can be transferred to an assignee81 only through a registered deed.82 The charge enures in favour of the unpaid vendor’s assignee also.83 In case of several purchasers, the charge is on the whole of the property and the seller is not concerned with the portions that each purchaser has to pay.84 Persons Claiming Under the Buyer The seller can enforce the claim for the unpaid money not only against the property in the hands of the buyer but also against all other persons claiming under him, if they had notice of the sale.85 However, the seller cannot cause the property purchased by a third party to be sold for the recovery of the unpaid purchase money to which, he, as a decree holder, is not entitled.86 An admission by seller of receipt of consideration in the sale deed will operate as an estoppel in enforcement of the charge against a transferee for value87 as such a recital may give rise to a presumption of payment.88 However, if the price was in fact not paid, there would be no estoppel. Charge when Excluded If the seller of an immovable property himself endorses a receipt for purchase money on the sale deed, he cannot later set up a lien for unpaid purchase money as against a mortgagee for value without notice under the purchaser.89 A lien is not lost merely by taking a personal security such as a promissory note, or a bond, or a memorandum of agreement or a mortgage, unless it is not intended to be a collateral security but is to be treated as the price itself. However, where the buyer under the direction of the seller executes a promissory note in favour of a third party with respect to the unpaid purchase price, the charge of the seller is lost and the buyer becomes liable to the third party. Even an agreement to pay the balance of purchase money in installments,90 or to pay the whole or part of the purchase money to a third party on behalf of the vendor,91 or to vendor’s creditor,92 does not imply abandonment of lien, but where the seller leaves a part of the purchase money with the buyer to be paid by him to his illegitimate son when he attains majority, his lien is lost.

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Purchaser’s Right to Possession Against Unpaid Seller Although payment of consideration is one of the primary duties of the buyer, in absence of a contract to the contrary, mere non-payment of money does not prevent the passing of ownership of the purchased property. The situation would be different if the parties intended to postpone the operation of conveyance till consideration has been actually paid. Despite non-payment of price, the purchaser can sue for possession of the property.1 The unpaid seller cannot retain possession to enforce payment of the money due to him.2 Even if there is an admission in the sale deed that the payment of the purchase money has been made, the seller is entitled to lead evidence that the buyer has not paid the money either in full or part of it.3 The lien or charge may be enforced by a sale of the property,4 but it cannot be enforced by a creditor,5 by a judgment creditor,6 or against a bona fide purchaser for value.7 The seller may also obtain an injunction against the purchaser if the sale is complete. The vendor has, apart from his lien, a personal remedy against the vendor.8 Duties of the Buyer The corresponding duties imposed on the buyer are as follows: (i) Disclose material facts, increasing the value of property; (ii) To pay purchase money; (iii)Bear loss or destruction of property if any after ownership passes to him, and; (iv)To pay charges and rent due on the property after ownership passes to him. Buyer’s Duty of Disclosure The buyer is bound to disclose to the seller any fact as to the nature and extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware and which materially increases the value of such interest. Payment of Price One of the primary duties of the buyer is to pay the consideration. He is, therefore, bound to pay or tender at the time and place of completing the sale, the purchase money to the seller or such person as he directs. This liability of the buyer is personal9 in nature and if the seller refuses to accept it, it is open to the buyer to deposit the money in the court.10 Encumbrances on the Property

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Normally, the property that is the subject matter of sale should be sold as free from encumbrance. If the buyer is given an assurance that there is no encumbrance on the property, but the before payment of the price he discovers there are charges due on the property, he has a right to retain part of the purchase money for the amount of any encumbrances on the property existing at the date of the sale.11 He can pay this amount so retained to the person entitled thereto. He can also, in the alternative, discharge it himself and set off the amount against the purchase money,12 or recover it from the vendor by filing a suit.13 If the amount is greater than the purchase money, he can keep the purchase money as security.14 In case the seller gives him some money to discharge the encumbrance, the buyer should discharge it by using the money and return the excess to the seller.15 Liability to Bear Losses Where the ownership of the property has passed to the buyer, any loss arising from the destruction, injury or decrease in the value of the property not caused by the seller is to be borne by the buyer. The rule applies even in cases where the possession is yet to be delivered to the buyer, or the payment of the price has not been made by the buyer. The relevant time for shifting of the liability to bear losses is the passing of ownership of the property, and not its delivery of possession. Payment of Public Charges and Rent The obligation to pay public charges is also transferred along with the ownership of the property. The rule is that when the ownership of the property has passed to the buyer as between himself and the seller, it is the buyer who is liable to pay all public charges and rent which may become payable in respect of the property. The obligation extends to pay the principle money due on any encumbrance subject to which the property is sold and the interest thereon after accruing due. Public charges include taxes to be paid to the municipality,16 and where a mortgagee brings the property to sale, the amount of such taxes due to the municipality till the date of the sale are to be deducted from the sale proceeds.17 The body levying public charges does it on the property and not against the buyer or the seller in particular,18 but as a rule they are paid by the seller or the buyer accordingly, as they accrue before the sale by the seller,19 and after it by the buyer.20 Once the sale is complete, the seller cannot claim a benefit which the buyer derives from the property,21 and correspondingly has a right of indemnity against the buyer for a charge levied after the completion of sale.22 Where electricity is disconnected for non-payment of dues, distributor cannot be compelled to give connection to buyer without making recovery from him,23 but where the property of a company under liquidation is purchased on as is where is basis and the buyer applies for fresh connection in its names, the buyer will not be liable to pay arrear dues of erstwhile company for availing supplies.24 Rights of Buyer The buyer is entitled to: Page 24 of 42

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(i) Benefits of improvements; (ii) Charge for pre-paid purchase money. Benefits of Improvements If the value of the property increases in between the time when the ownership in the property has passed but the price has not been paid by the buyer, the seller cannot demand a higher price than the one agreed before, and the buyer would be entitled to the increase in the value of the price of the property. He is also entitled to the benefit of any improvement or increase in value of the property and to the rents and profits thereof,25 including the repairs carried out by the seller after the completion of the sale.26 The seller cannot participate in any benefit that purchaser derives from his purchase.27 Charge for the Pre-paid Purchase Money In many cases the seller demands and takes an advance amount from the buyer before the completion of the sale. It is usually done at the time of an agreement to sell the property and its quantum may vary from case to case. It may be the full consideration or even a part of it. The buyer is entitled to28 a charge on the property as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property for the amount of any purchase money properly paid by the buyer in anticipation of the delivery and for interest on such amount, and when he properly declines to accept the delivery, then also he is entitled for the earnest (if any) and for the cost (if any) awarded to him of a suit to compel specific performance on the contract or to obtain a decree for its rescission. It creates a statutory charge29 that arises immediately on payment of the purchase money,30 and can be enforced by the buyer against the property and even against a subsequent transferee without notice.31 If an immovable property is charged and converted into another property or money then the charge will fasten on that converted property or money. The charge would be available not only against the seller but also as against all people claiming under him.32 The rule embodies principles of equity, justice and good conscience.33 Even the vesting of the property in the Central Government under the order of compulsory purchase cannot defeat the buyer’s lien.34 Interest on the purchase money is to be paid from the date of the payment to the date of delivery of possession.35 Even insertion of a clause like ‘for any cause whatsoever’ will not permit the seller to take advantage of his wrong.36 However, the charge is not available when the sale is invalid,37 not genuine,38 is in contravention of a statutory provision39 or the buyer commits a default.40 Buyer’s Refusal to Accept Delivery If the buyer’s refusal to accept the delivery of the property is not justified, this improper refusal will result in the negation of the charge over purchase money but the seller still has to account for it,41 even if the buyer declines to complete the sale due to seller’s refusal to secure a charge over the price paid by the buyer.42

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EARNEST Earnest is a part of the purchase money kept as a security43 when the transaction goes forward. It is forfeited and the seller is entitled to keep it44 if the buyer commits default. On the other hand, the buyer gets a refund of this amount by filing a suit45 if the seller is at default.46 If the seller, who himself is at fault, keeps it, then he would be asked to pay for the expenses incurred in pursuance of the contract to the buyer.47 A delay on part of the buyer is not a default.48 The seller is at default if he fails to make out a good title,49 obtain renewal of leases in time,50 or to deliver the possession,51 or obtain planned permission.52 Earnest differs from an advance,53 but generally the amount paid on the date of agreement for the performance of contract is presumed to be an earnest.54 If the contract has already been rescinded due to buyer’s default and the amount is forfeited, a subsequent discovery of defect in title of the seller does not help the buyer in recovery of earnest.55 Mere use of the word earnest will not give rise to a presumption of a contract to the contrary.56 Non-disclosure amounting to Fraud An omission on part of the seller to declare such disclosures as are required by the law to be disclosed, is fraudulent. If the purchaser discovers the defect before conveyance, he can rescind the contract57 or claim compensation, but if the fraud is discovered after the completion of the sale, in order to rescind the contract, he has to establish that either there was a fraud,58 or he had no notice of the defect,59 or that the contract has not been substantially performed.60 When the sale deed on account of fraud or common mistake fails to represent the true intention of the parties, the court will rectify it in conformity with the contract.61 Claim for Compensation The buyer can also claim compensation in cases of an express contract,62 agreement63 or an implied warranty64 contained in the contract to that effect or for breach of express covenants of quiet enjoyment,65 collateral warranty,66 covenant for title,67 or condition to take care of the property. Other Remedies Available with the Buyer Other remedies available with the buyer are, he may sue for recovering the possession of the property,68 or he can enforce his charge for the price pre-paid.69 He can sue for delivery of title deeds,70 or for an indemnity against encumbrance discharged in case of land free from encumbrance.71 Contract to the Contrary General principles regarding rights and liabilities relating to the buyer and seller can apply only in case there is no contract to the contrary. Such contract must be strictly construed more Page 26 of 42

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specifically when it is in restraint of the rights,72 but it does not apply in case where the parties consciously negotiated but failed with respect to any terms and conditions as a result of which the agreement could not be settled.73 The contract may stipulate that the buyer should accept the title of the seller and if the buyer knows that the title is questionable, and he accepts it he will be held to his bargain.74 However, time is not of the essence of the contract unless the contract specifically provides so.75 If the time is fixed by the contract, it must be reasonable. A direction given in the deed that the amount retained by the buyer is to be paid to a simple creditor of the seller and the covenant on part of the seller to pay off an outstanding mortgage and giving liberty to the purchaser to pay the same in case the seller himself failed to pay, is not a contract to the contrary and the purchaser is competent to retain the sum reserved for payment to the simple creditor.76 MARSHALLING

Section 56. Marshalling by subsequent purchaser.— 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.

ESSENTIALS OF MARSHALLING (i) The owner of two or more properties mortgages them to one person; (ii) he then sells one or more of the properties to another person; (iii)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; (iv)but not so as to prejudice the rights of the mortgagee or persons claiming under him; (v) or of any other person who has for consideration acquired an interest in any of the properties. Marshalling can be understood with the following example. Page 27 of 42

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A owns two or more properties and mortgages77 both of them to one person X. Subsequently, he sells one or more of the properties to another person,B. B is, in the absence of the contract to the contrary, entitled78 to have the mortgage debt79 satisfied out of the property or properties not sold to him. He can require X to proceed against the properties that are not mortgaged to him. However, this entitlement is only so far as the same will not be to the prejudice of the rights of the mortgagee80 or persons claiming under him, or of any other person who has for consideration acquired an interest in any of the properties. 81 Similarly,A mortgages his properties X, Y and Z in favour of B for a loan of Rs 50,000.A later sells property X to C for a consideration of Rs 50,000.A does not repay the loan to B and B causes the property to be sold with the help of the court. Here,C can claim that the debt of Rs 50,000 that A owes to B, should be satisfied out of the sale of the properties Y and Z, that property X that has passed to him should not be made the subject matter of sale. This is despite the fact that property X was also the security kept with the mortgagee. Further, marshalling is possible where the debt can be satisfied out of the other properties. But if it cannot be so satisfied with the help of the other properties, then marshalling will not be permissible. Marshalling cannot arise unless there is a common debtor82 and more than one property is kept as a security for the repayment of the loan. Who can avail Marshalling An execution purchaser cannot avail marshalling83 though the principle is applicable to involuntary sales.84 The rule of marshalling does not apply as between two purchasers and both are to contribute rateably to the satisfaction of the original charge.85 But where, out of the two mortgaged properties, one is sold to a purchaser free from mortgage and then second is sold to another purchaser subject to the mortgage, the first purchaser can marshall and require the mortgagee to proceed against the property in the hands of the second purchaser.86 Contract to the Contrary The charge on the unsold property may be excluded by an express or even an implied87 contract to the contrary,88 not only as between a mortgagor and a mortgagee, but also as between a mortgagor and a purchaser.89 DISCHARGE OF ENCUMBRANCES ON SALE

Section 57. Provision by Court for encumbrances and sale freed therefrom.— (a) Where immoveable property subject to any encumbrances, whether immediately payable or not, is sold by the Court or in execution of a decree, or out of court, the Page 28 of 42

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Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court,— (1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property—of such amount as, when invested in securities of the Central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and (2) in any other case of a capital sum charged on the property—of the amount sufficient to meet the encumbrance and any interest due thereon. But in either case there shall also be paid into Court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investment not exceeding one-tenth part of the original amount to be paid in, unless the court for special reasons (which it shall record) thinks fit to require a large additional amount. (b) Thereupon the Court may, if it thinks fit, and after notice to the encumbrance, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the encumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court. (c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. (d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree. (e) In this section “Court” means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the State Government may, from time to time, by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.

GENERAL PRINCIPLE The object of this section is that property should be, as far as possible, sold free from encumbrances. If an immovable property that is subject to any encumbrance is sold by the court or in execution of a decree or out of court, the court90 may, if it thinks fit, on the application of any party to the sale, direct or allow payment into the court.91

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(IN) Poonam Pradhan Saxena : Property Law

In case there is a charge over the property that is to be paid periodically, the court may allow the deposit of such sum of money in the court, which, if invested in government securities, would yield an income from which the charge can be met with. They may also call upon the party to deposit an additional amount to meet the cost of contingent expenses arising in future. After such deposit has been made, the court may declare the property as free from encumbrance.

1.

A transfer of ownership does not include a grant of an easement, see Bhagwan Sahai v. Narsingh Sahai, (1907) 31 All 612; Kondayya v. Yandru Veeraanna, AIR 1926 Mad 543; Musunoori Satyanarayana Murti v. Chekka Lakshmayya, AIR 1929 Mad 79. An assignment of fruits of action is not a sale, see Abdul v. Shaluka Bibi, (1894) ILR 21 Cal 496; Kalyan v. Desrani, AIR 1927 All 361. A hire purchase transaction is not a sale, see Hameed v. Jayabharat Credit and Investment Co. Ltd., AIR 1986 Ker 206 [LNIND 1985 KER 332].

2.

Ratan Bai v. Basanti Bai, AIR 2008 (NOC) 1172 (MP).

3.

Ramlal v. Phagua, (2006) 1 SCC 168 [LNIND 2005 SC 820]; Chennamal v. Manimalayalam, AIR 2005 SC 4397 [LNIND 2005 SC 819]; Umabai v. Neelakanth D. Chavan, (2005) 6 SCC 243 [LNIND 2005 SC 368]; Shanti Devi v. Nand Lal, AIR 2005 Raj 218; Abdul Sami Qureshi v. Sardar Kuldeep Singh, AIR 2008 (NOC) 840 (All); Tulsi v. Chandrika P. Prasad, AIR 2006 SC 3359; Bhagwan Devi v. Beni Bai, AIR 2006 All 251 [LNIND 2006 ALL 23]; Jankiraman v. State, (2006) 1 SCC 697 [LNIND 2006 SC 12]; Shankerlal Ganulal v. B.S. Bharuka, AIR 1999 SC 260.

4.

Jayanta Ghosh v. State of West Bengal, AIR 2008 (NOC) 303 (Cal).

5.

Ismail Shah v. Saleh Muhammad, AIR 1925 Lah 326.

6.

Misahul Enterprises v. Vijaya Srivastava, AIR 2003 Del 15 [LNIND 2002 DEL 670].

7.

Biswanath Sahu v. Tribeni Mohan, AIR 2003 Ori 189 [LNIND 2003 ORI 191].

8.

See Sarup Chand v. Surjit Kaur, AIR 2002 P&H 54.

9.

Lakhwinder Singh v. Paramjit Kaur, AIR 2004 P&H 6.

10. A Bhagyamma v. Bangalore Development Authority, Bangalore, AIR 2010 Kar 63. 11. See s. 107 of the TP Act. 12. Ram Jiwan Rai v. Deoki Nandan Rai, AIR 2005 Pat 23. 13. AIR 2005 All 86 [LNIND 2006 AP 831]. 14. The term price has not been defined in The Transfer of Property Act, 1882, but is used in the same sense as in the s. 77; see Subbireddy v. K.N. Srinivasa Murthy, AIR 2006 Kant 4 [LNIND 2005 KANT 406]; Jagir Singh v. Ranjeet Singh, AIR 2006 Raj 105; Inder Chand v. Sethi, AIR 2006 Raj 251 [LNIND 2006 RAJ 32]; Arjuna Reddy v. Arjuna C Thanga, (2006) 7 SCC 756 [LNIND 2006 SC 644]; Ramlal v. Phagua, (2006) 1 SCC 168 [LNIND 2005 SC 820]; Kedar Nath v. Emperor, (1903) ILR 30 Cal 921; Queen Empress v. Appavu, (1886) ILR 9 Mad 141; Samartalmal v. Govind, (1901) ILR 25 Bom 696. 15. Commr of Income Tax v. Motor and General Stores, AIR 1967 SC 200; Madan Pillai v. Badrakali, AIR 1922 Mad 311 [LNIND 1922 MAD 5]; Rajjko v. Lajjo, AIR 1928 All 204; Bashir Ahmed Khan v. Zubeida Khatun, AIR 1926 Oudh 204; Abadi Begum v. Mohamad Khalil, AIR 1930 Oudh 481. 16. State of Madras v. Gannon Durkerley, AIR 1958 SC 560 [LNIND 1958 SC 39]; Commr of Income Tax v. Motor and General Stores, AIR 1967 SC 200. 17. Unnao Commercial Bank v. Kailash Nath, AIR 1955 All 393 [LNIND 1954 ALL 38]. 18. Alagappa Chettyar v. Chettyar Firm, AIR 1934 Rang 287. A compromise it has been held is an existing right and cannot be regarded as a sale, see Krishan Tanjahi v. Aba, (1910) ILR 34 Bom 139. 19. Sura Reddy v. Ram Sarasa, AIR 1937 Mad 714 [LNIND 1937 MAD 59]. 20. Ashok Chandra v. Chota Nagpur Banking Corpn., AIR 1948 Rang 294.

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(IN) Poonam Pradhan Saxena : Property Law 21. Berni Madho v. John, AIR 1947 All 110. 22. Ram Charan v. Giriga Nandini, AIR 1996 SC 323. 23. K Lakshaman Rao v. G Ratna Manikyamba, AIR 2003 AP 241 [LNIND 2003 AP 125]. 24. Rati Ram v. Mam Chand, AIR 1959 Punj 117. 25. Mahima v. Dinabondhu, AIR 1960 Ori 16 [LNIND 1958 ORI 57]; Mohan v. Badarkali, AIR 1922 Mad 311 [LNIND 1922 MAD 5]; Arumugham v. Subramaniam, AIR 1937 Mad 882 [LNIND 1936 MAD 369]; Zamindar of Polavaram v. Maharaja of Pittapuram, AIR 1931 Mad 140 [LNIND 1930 MAD 103]. 26. Sahadeo Singh v. Kubernath, AIR 1950 All 632 [LNIND 1950 ALL 132]. 27. Ghulam Mohamad v. Tek Chand, AIR 1921 Lah 82. 28. Rajjo v. Lajja, AIR 1928 All 204; see also Madan Pillai v. Badrakali, AIR 1922 Mad 311 [LNIND 1922 MAD 5], wherein it was held that the a transfer of a life interest in land in discharge of a claim for maintenance is neither a sale nor an exchange nor a gift. 29. Malik Mohamad Shujaaqt v. Salim Jahan, AIR 1949 All 204. 30. It has been held that extinction of dower debt is equivalent to price, see Saburannessa v. Mohiuddin, AIR 1934 Cal 693; Gopal Das v. Sakina Bibi, AIR 1936 Lah 307; Saiful v. Abdul, AIR 1932 All 596. In some cases it has been treated as a Hiba bil iwaz i.e., a gift for consideration, see Basir v. Zubaida, AIR 1926 Oudh 186; Chaudhary Talib Ali v. Kaniz Fatima Begum, AIR 1927 Ouhd 204; Abdul v. Abdul, AIR 1934 Oudh 163; Gul Bibi v. Mimsani, (1955) NUC Ass622; Masum v. Iluri, (1952) ILR Mad 1010; Ghulam v. Razia, AIR 1951 All 86 [LNIND 1950 ALL 300]; it has been held in some cases that the consideration of dower would not be a price, see Ghulam Abbas v. Razia Begum, AIR 1951 All 86 [LNIND 1950 ALL 300]; Mohamad Hashim v. Aminabi, AIR 1952 Hyd 5; Basir v. Zubaida, AIR 1926 Oudh 186. 31. Chandra Shankar v. Abhia, AIR 1952 Bom 56 [LNIND 1951 BOM 30]; Prasanta v. IC Ltd., AIR 1955 Cal 101 [LNIND 1954 CAL 103]. 32. Nalamathu Venkaiya v. B.S. Neelkanta, AIR 2005 Andh Pra 535; Ranjana Nagpal v. Devi Ram, AIR 2002 HP 166 [LNIND 2001 HP 76]. 33. Hara Bewa v. Banchandilal, AIR 1957 Ori 243. 34. Premanarayana v. Kuwarji, AIR 1993 MP 164; G Hampamma v. V Kartigi, AIR 1990 Kant 128 [LNIND 1989 KANT 113]; Balabhadra Misra v. Nirmala Sundari, AIR 1954 Ori 23; Michhu Kaur v. Raghu Jena, AIR 1961 Ori 19 [LNIND 1960 ORI 121]; S ukalop v. Puanu, AIR 1961 MP 176 [LNIND 1960 MP 21]; Kashidas v. Chaithru, (1914) 19 Cal LJ 289; Baijnath v. Paltu, (1908) 30 AH 125; Ponnayya Goundan v. Muttu, (1894) ILR 17 Mad 146. 35. Shiva Narain Sab v. Baidya Nath Tewari, AIR 1973 Pat 386. 36. Kamleshwar Prasad v. Abadi, (1915) ILR 37 All 631. 37. Govindammal v. Gopalachariar, (1906) 16 Mad LJ 524; Bai Devmani v. Ravi Shankar, AIR 1929 Bom 147; Subbayar v. Moniem, (1913) ILR 36 Mad 8; Ponnayya Goundan v. Muttu, (1894) ILR 17 Mad 146. 38. Lakshmi Narain Barnwal v. Jagdish Singh, AIR 1991 Pat 99. 39. Sahadeo Singh v. Kubernath, AIR 1950 All 632 [LNIND 1950 ALL 132]; Bai Devmani v. Ravi Shankar, AIR 1929 Bom 147. 40. Kaliaperumal v. Rajagopal, AIR 2009 SC 2122 [LNIND 2009 SC 416]. 41. Inder Kaur v. Tara Singh, (1978) 80 Punj LR 41. 42. Vidhyadhar v. Manikrao, AIR 1999 SC 1441 [LNIND 1999 SC 260]; Ananda Chandra v. Nilakanta, AIR 1972 Ori 99 [LNIND 1971 ORI 66]. 43. Shah Lalchand v. Indrajit, 27 IA 93. 44. Sheo Narain Singh v. Darbari Mahton, (1897) 2 Cal WN 207; Hira Bewa v. Bunchanihdi, AIR 1957 Ori 243; Bihari v. Rohini, (1908) 13 Cal WN 692; Mauladan v. Raghunandan, (1900) ILR 27 Cal 7; Sangu Ayyar v. Cumaraswami, (1895) ILR 18 Mad 61. 45. Bombay Tramways Co. v. Bombay Municipal Corpn., (1902) 4 Bom LR 384. 46. Hakim Singh v. Ram Sanehi, AIR 2001 All 231 [LNIND 2001 ALL 243]. 47. Hanifunissa v. Faizunnissa, 38 IA 85. 48. Munrankhan v. Ashrafunissa, AIR 1983 All 363. 49. Ram Sunder Saha v. Raj Kumar Sen, AIR 1927 Cal 889. 50. Subana v. Yamanappu, AIR 1933 Bom 209.

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(IN) Poonam Pradhan Saxena : Property Law 51. Munnalal v. Atmaram, AIR 2008 (NOC) 843 (MP); Subbireddy v. K N Srinivasa Murthy, AIR 2006 Kant 4 [LNIND 2005 KANT 406]; Jagir Singh v. Ranjeet Singh, AIR 2006 Raj 105; Inder Chand v. Sethi, AIR 2006 Raj 251 [LNIND 2006 RAJ 32]; Arjuna Reddy v. Arjuna C Thanga, (2006) 7 SCC 756 [LNIND 2006 SC 644]; Ramlal v. Phagua, (2006) 1 SCC 168 [LNIND 2005 SC 820]. 52. Arjuna Reddy v. Arjuna C Thanga, (2006) 7 SCC 756 [LNIND 2006 SC 644]. 53. Megha Enterprises Private Limited v. Official Liquidator, Jaipur, AIR 2008 Raj 138 [LNINDORD 2008 RAJ 217]. 54. Saheb Ram Surajmal v. Purushottam Lal, AIR 1950 Nag 89. The principles are inapplicable to a sale under the Sale of Goods Act, 1930. 55. Except as herein provided, there is no other mode of transfer of property by way of sale, see Narayan Swami v. Lakshmi, AIR 1939 Mad 1220; Ma Mya v. VPRVSAANNAMALAI Chettiar, AIR 1934 Rang 127; Sheo Narain Singh v. Darbari Mahton, (1897) 2 Cal WN 207; Papireddi v. Narasareddi, (1893) ILR 16 Mad 464; Makhan Lal v. Bunku Behari, (1892) ILR 19 Cal 623. 56. Tandonbi Devi v. Kalamu Singha, AIR 2009 (NOC) 587; Dayal Fuel Industry v. Bihar State Financial Corporation, AIR 2009 (NOC) 592 (Pat); Vijay Kumar Sharma v. Devesh Behari Saxena, AIR 2008 All 66 [LNIND 2007 ALL 90]; Godhan v. Ram Bilas, AIR 1995 All 357 [LNIND 1994 ALL 151]. 57. See s. 32 A, the Indian Registration Act, 1908 as amended by the Amendment Act 48 of 2001. 58. Latif Estate Line India Ltd v. Hadeeja Ammal, AIR 2011 Mad 66 [LNIND 2011 MAD 658]. 59. Bhabhi Dutt v. Ramlal Byamal, AIR 1934 Rang 303. 60. Mathura Mohan v. Ram Kumar, (1916) ILR 43 Cal 790. 61. Immitidipattam Thirugnanna v. Periya Dorasami, (1901) ILR 24 Mad 377. 62. Nirman Singh v. Lal Rudra, AIR 1926 PC 100; Ram Sarup v. Charitter Rai, AIR 1927 All 338; Ram Prasad v. Beod, 13 IC 436. 63. Ramchandra Majhi v. Hambai Majhi, AIR 1989 Ori 27 [LNIND 1988 ORI 92]. 64. Dave Ramshanker v. Bai Kailasgauri, AIR 1974 Guj 69 [LNIND 1972 GUJ 47]. 65. Inunganta Venkataraman Rao v. Appa Rao, AIR 1936 PC 91. 66. Bhingarpur Debotter Estate v. Brahman Nijan, AIR 1990 Ori 190 [LNIND 1989 ORI 18]. 67. The formality of registered instrument is not considered necessary in view of the small value, see Bhaskar Gopal v. Padman Hira, (1916) ILR 40 Bom 313; Mohinuddin v. President Municipal Committee, Khargone, AIR 1993 MP 5 [LNIND 1992 MP 142]; see, however, Mokhan Lal v. Bunku Bihari, (1892) ILR 19 Cal 623; Biswanath Prasad v. Chandra Narayan, AIR 1921 PC 8, wherein it was held that even in case of tangible immovable property of the value of less than Rs 100, lack of registration would not result in the transfer of ownership even though there is a delivery of deed of the property. 68. Immamuddin v. Ramzan, (1885) All WN 201; Tribhovan v. Shankar Lal, AIR 1943 Bom 431; Daya Ram v. Sita Ram, AIR 1925 All 206; Gunga Narain v. Kali Churn, (1895) ILR 22 Cal 179; Kathari v. Bhupati, (1916) 29 Mad LJ 721; Bhagabati Swarnakar v. Sazhi, 2 IC 413. 69. Raj Bahadur v. Babu Lal, AIR 2011 All 48 [LNIND 2011 ALL 3]; Ram Chandra v. Hari Kirtan, AIR 2004 All 345. 70. Lakshmi Narain Bamwal v. Jagdish Singh, AIR 1991 P,at 99; Harbans Singh v. Takamani Devi, AIR 1990 Pat 26; Venkataramaiya v. Commr Income Tax, AIR 1966 SC 115 [LNIND 1965 SC 106] 71. Ram Saran Lall v. Domini Kuer, AIR 1961 SC 1747 [LNIND 1961 SC 215]. 72. Tapan Krishna Das v. Hazi Ali Khan, AIR 2005 Cal 60 [LNIND 2004 CAL 392]. 73. Kameshwar Choudhary v. State of Bihar, AIR 1998 Pat 141; Ganesh Prasad v. Bhaiya Lal, AIR 1938 Nag 253. 74. See Kaliaperumal v. Rajagopal, AIR 2009 SC 2122 [LNIND 2009 SC 416], wherein it was held that despite registration the ownership would pass only on payment of complete consideration to the seller;Sheo Narain Singh v. Darbari Mahton, (1897) 2 Cal WN 207; Hira Bewa v. Bunchanihdi, AIR 1957 Ori 243; Bihari v. Rohini, (1908) 13 Cal WN 692; Mauladan v. Raghunandan, (1900) ILR 27 Cal 7; Sangu Ayyar v. Cumaraswami, (1895) ILR 18 Mad 61. 75. Venkataramana v. Rangiah, AIR 1922 Mad 249 [LNIND 1921 MAD 90]. 76. Chander Singh v. Jamuna Prasad, AIR 1958 Pat 193; Santaya v. Narayanan, (1883) 8 Bom 182. 77. Kanta Ben Chandulal Shah v. Gajiben, AIR 2005 Guj 49 [LNIND 2004 GUJ 411]. 78. Prem Singh v. Distt Board of Rawalpindi, AIR 1934 Lah 917. 79. Bishnudeo Narain Rai v. Anmol Devi, AIR 1998 SC 3006 [LNIND 1998 SC 781]. 80. Bakhtawar Ram v. Naushad, 55 IC 659. 81. Konda v. Vishnu, (1913) ILR 37 Bom 53.

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(IN) Poonam Pradhan Saxena : Property Law 82. Ponayya Goundan v. Muttu, (1894) ILR 17 Mad 146. 83. Shib Lal v. Bhagwan, (1888) 11 All 244; Velayutha v. Govindasami, (1911) ILR 34 Mad 543; Govindammal v. Gopalachariar, (1906) 16 Mad LJ 524; Amrithathammal v. Periasamy, (1909) 32 Mad 325; Chinnaswami Reddiar v. Krishna, (1906) 16 Mad LJ 146; Sagaji v. Namdeo, (1899) ILR 23 Bom 525. 84. Numaanab v. Hara Prasad, (1913) 17 Cal WN 1161; Kaliram v. Dula Ram, AIR 1933 Cal 544. 85. G Ram v. Delhi Development Authority, AIR 2003 Del 120 [LNIND 2002 DEL 510]. 86. Maung Po Yin v. Maung Tel Tu, AIR 1925 Rang 68. 87. Mathura Mohan v. Ram Kumar, (1916) ILR 43 Cal 790. 88. Nachhitar Singh v. Jagir Kaur, AIR 1986 P&H 197, 200. 89. Varatha Pillai v. Jeevarathammal, (1919) 43 Mad 244; Abdul Alim v. Abdul Sattar, AIR 1936 Cal 130. 90. Kemam Kandaswamy v. Chinappa, AIR 1921 Mad 82 [LNIND 1920 MAD 110]. 91. Dawal v. Dhanna, (1917) ILR 41 Bom 550; Nailamuttu Pillai v. Betha, (1900) ILR 23 Mad 37. 92. Tarini Kamal v. Prafulla Kumar, AIR 1979 SC 1165 [LNIND 1979 SC 145]. 93. Bishnu Kumar v. Mahendra, AIR 2005 Sk 33. 94. See The Transfer of Property Act, 1882, s. 54. 95. Guest Homfray, (1901) 5 Ves 818. 96. Hanmanta v. Mir Ajmodin, (1904) 6 Bom LR 1104. 97. Sonai Chutia v. Sonaram Chutia, (1916) 20 Cal WN 195; Santokhi Misser v. Siro Jha, 151 IC 55. 98. Muthukaruppan v. Muthu, (1915) 38 Mad 1158; Ram Nath v. Gajadhar, AIR 1926 All 300; Sheikh Dawood v. Moideen, AIR 1925 Mad 566 [LNIND 1924 MAD 522]; Bhanwari lal v. Dhulilal, AIR 1959 Raj 218 [LNIND 1958 RAJ 167]; Swaminatha Udayar v. Mottayya Padayachi, AIR 1957 Mad 209 [LNIND 1956 MAD 99]; Dinanath v. Manbodhi, (1916) 12 Nag LR 139. 1.

Maung Mya Maung v. Ma Khine, AIR 1936 Rang 497; Mahbub v. Kalekhar, AIR 1936 Lah 756; Kulachandra Ghose v. Jogendra Chandra Ghose, AIR 1933 Cal 411; see Sibendra v. Secretary of State, (1907) 34 Cal 207, wherein it was held that if on the date of the sale the vendee gets in possession of the property with the assent express or implied of the vendor, it may be held that there has been delivery of the property but the principle has no application where the intended transferee had been in occupation before the date of the transfer.

2.

Suraj Prasad v. Aguta Devi, (1958) 37 Pat 577; Trilochan v. Bamdeo, AIR 1972 Ori 136 [LNIND 1971 ORI 91]; see however Sohan Lal v. Mohan Lal, (1928) ILR 50 All 986; Patel v. Bhikabhai v. Shah Chimanlal, AIR 1953 Bom 437 [LNIND 1953 BOM 2]; Chinna Nagaih v. N Baliga, AIR 1956 Hyd 170, wherein it was held that delivery of possession in such cases can be effected by the mortgagee simply by giving up possession as a mortgagee.

3.

Nagayya v. Sayamma, AIR 1951 Mys 42; Daya Ram v. Sita Ram, AIR 1925 All 206; Kathari v. Bhupati, (1916) 29 Mad LJ 721; Immamuddin v. Ramzan, (1885) All WN 201.

4.

Mahomad Yagoolally v. Chottey Lal, AIR 1939 Pat 218.

5.

Punchha Lal v. Kunj Bihari Lal, (1913) 18 Cal WN 445; Brajaballav v. Akhoy Bagdi, AIR 1926 Cal 705; Sheikh Juman v. Mohamad, (1917) 21 Cal WN 1149 ; see also Kuppuswami v. Chinnaswami, AIR 1928 Mad 546 [LNIND 1927 MAD 317], wherein it was held that the execution of an unregistered sale deed invalidates the oral sale by delivery.

6.

Biswanath Prasad v. Chandra Narain, AIR 1921 PC 8.

7.

Mackhanlal v. Bankubehari, (1892) 19 Cal 623 (FB).

8.

Ko Yan v. Ma Mai Ni, AIR 1933 Rang 4.

9.

Tribhovan v. Shankar, AIR 1943 Bom 431.

10. Habibur v. Rasul, 19 All LJ 376; Jhampu v. Kutramoni, 15 All LJ 761; Dayaram v. Sitaram, AIR 1925 All 206; Keshwar v. Sheonandan, AIR 1929 Pat 620; Chinnnaswami v. Manickamal, AIR 1937 Mad 265 [LNIND 1936 MAD 289]; Shankry v. Mikha, AIR 1941 Lah 407. 11. An inference to that effect can be drawn if on the date of the sale the buyer gets the possession, see Ganga Narain v. Kali Churn, (1895) ILR 22 Cal 179; Tukaram v. Atma Ram, AIR 1939 Bom 31; Ammani v. Jagannath, (1915) Mad WN 442. 12. Sampatlal v. Poker, AIR 1955 Raj 70. 13. Moidin v. Avaran, (1888) ILR 11 Mad 263. 14. Pankajakshy v. Devaki Ramakrishnan AIR 2011 Ker 30 [LNIND 2010 KER 557].

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(IN) Poonam Pradhan Saxena : Property Law 15. Munna Scrap Traders Bhavanagar v. Union of India, AIR 1999 Guj 240. 16. Munnalal v. Atmaram, AIR 2008 (NOC) 843 (MP); Subbireddy v. K N Srinivasa Murthy, AIR 2006 Kant 4 [LNIND 2005 KANT 406]; Jagir Singh v. Ranjeet Singh, AIR 2006 Raj 105; Inder Chand v. Jethi, AIR 2006 Raj 251 [LNIND 2006 RAJ 32]; Arjuna Reddy v. Arjuna C Thanga, (2006) 7 SCC 756 [LNIND 2006 SC 644]; Ramlal v. Phagua, (2006) 1 SCC 168 [LNIND 2005 SC 820]; Satya Prakash Goel v. Ram Krishna Mission, AIR 1991 All 343 [LNIND 1990 ALL 338]. 17. Gh Mohd Matoo v. Gh Rasool Sofi, AIR 2005 J&K 48. 18. Moturi Seeta Ramabrahaman v. Bobba Rama Mohana Rao, AIR 2000 AP 504 [LNIND 2000 AP 995]. 19. B Rajamani v. Azhar Sultana, AIR 2005 Andh Pra 260. 20. Dave Ramushankar v. Bai Kailasgoure, AIR 1974 Guj 69 [LNIND 1972 GUJ 47]. 21. Kondapalli Satyanarayana v. Kondapalli Mayullu, AIR 1999 Andh Pra 170. 22. Ram Swarup Gour v. Rati Ram, AIR 1984 All 369 [LNIND 1984 ALL 195], see also the Specific Relief Act, 1963, s. 10. 23. Satya Prakash Goel v. Ram Krishna Mission, AIR 1991 All 343 [LNIND 1990 ALL 338]. 24. (2003) 7 SCC 350 [LNIND 2003 SC 504]. 25. Aloka Bose v. Parmatma Devi, (2009) 2 SCC 582 [LNIND 2008 SC 2460]. 26. See The Transfer of Property Act, 1882, s. 54.Majidan v. Ishaq, AIR 2008 (NOC) 1135 (UP); Basant Kaur v. General Public, AIR 2008 (NOC) 1406 (P &H); Ramesh Chandra v. Prem Lata Sinha, AIR 2008 Pat 155 [LNIND 2008 PAT 96]; Raghunath Rai v. Jogeshwar Prashad Sharma, AIR 1999 Del 383 [LNIND 1999 DEL 493]; Mural Viniyog Ltd. v. Registrar of Assurance, AIR 1989 Cal 85; Gopal Singh v. The State, AIR 1984 Raj 174; Ram Baran v. Ram Mohit, AIR 1967 SC 744 [LNIND 1966 SC 173]; Indira Fruits v. Bijendra Kumar Gupta, AIR 1995 All 316 [LNIND 1995 ALL 96]; Dewan Investments v. DDA, AIR 1997 Del 388 [LNIND 1997 DEL 212]; Jayshree Oza v. Rakesh Mohun, 74 (1998) DLT 11; see however Rabindra Nath v. Haredra Kumar, AIR 1956 Cal 462 [LNIND 1956 CAL 16], wherein it was held that though a contract of sale does not of itself create an interest in the property there is a transfer of ownership when in addition a part of the purchase money has been paid. 27. Govinda Chandra v. Parvati Ghose, AIR 1956 Cal 147 [LNIND 1955 CAL 68]. 28. Mohinder Kaur v. Sudarshan Krishnamurthy, DRJ (1992) 23 179. 29. Ramalingam v. GR Jagadammal, AIR 1957 AP 960 [LNIND 1956 AP 23]. 30. Mahadeo v. Vasudeo, (1899) ILR 23 Bom 181. 31. Sujan Singh v. Mokhan Chand Jain, AIR 1983 P&H 180. 32. State of Himachal Pradesh v. Motilal Pratap Singh, AIR 1981 HP 8 [LNIND 1980 HP 27]. 33. Imtiaz Ali v. Nasim Ahmed, AIR 1987 Del 36 [LNIND 1986 DEL 318]. 34. Dorabai v. Mathuradas Govinddas, AIR 1980 SC 1334 [LNIND 1980 SC 201]. 35. Vannarakkal Kallalathial Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291 [LNIND 1990 SC 137]; see also Mohinder Singh v. Nanak Singh, AIR 1971 P&H 381. 36. S Mohammad Anuruddin v. Sahiba Sultana, AIR 2005 AP 508 [LNIND 2005 AP 444]; Habeeb Khan v. Valasula Devi, AIR 1997 AP 53 [LNIND 1996 AP 375]. 37. Babu Ram v. Indra Pal Singh, AIR 1998 SC 3021 [LNIND 1998 SC 750]. 38. SVRMudaliar v. Rajababu Buhari, AIR 1995 SC 1607 [LNIND 1995 SC 513]. 39. Latif Estate Line India Limited v. Hadeeja Ammal, AIR 2011 Mad 66 [LNIND 2011 MAD 658]. 40. The provisions of this section apply only when there is no express contract to the contrary, see Haradhone v. Bhagabati, 41 Cal 852; Webb v. Macpherson, (1904) 31 Cal 57 PC. 41. Ram Sunder Saha v. Raj Kumar Sen, AIR 1927 Cal 889. 42. A K Lakshmipathy v. Rai Saheb Pannalal H Lahoti Charitable Trust, AIR 2010 SC 577 [LNIND 2009 SC 1934]. 43. Ratanlal v. Nanabhai, AIR 1956 Bom 175 [LNIND 1955 BOM 88]. 44. Lallubhai Rupchand v. Mohanlal Sarkarchand, AIR 1935 Bom 16. 45. Gondu Ramasubbu Iyer v. Muthiah Kone and Ors., AIR 1925 Mad 968. 46. Harilal v. Mulchand, AIR 1928 Bom 427; Ganapat Ranglal v. Mangilal Hiralal, AIR 1962 MP 144 [LNIND 1961 MP 87]. 47. Meghi v. Tyeballi, AIR 1925 Bom 64; Nursing Das v. Chuttoo Lal, AIR 1923 Cal 641. 48. AIR 2010 SC 338 [LNIND 2009 SC 2106].

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(IN) Poonam Pradhan Saxena : Property Law 49. Ram Lal v. Suradhani, 63 Cal 124; Ratanlal v. Nanabhai, AIR 1926 Bom 175. 50. Baljit Singh v. Improvement Trust Ludhiana, AIR 2009 SC 1254 [LNIND 2009 SC 13]; Haji Essa v. Daya Bhai, (1896) ILR 20 Bom 522; Mohamad Siddiq v. Li Kan Shoo, AIR 1925 Rang 372; Gondu Ramasubbu Iyer v. Muthiah Kone and Ors., AIR 1925 Mad 968. 51. Haryana Financial Corporation v. Rajesh Gupta, AIR 2010 SC 338 [LNIND 2009 SC 2106]. 52. A purchaser can compensate for any loss or damage which the seller has sustained in the course of such a transaction for which even the purchaser was liable; see RL Pinto v. FF Menezes, AIR 2001 Kant 141 [LNIND 2000 KANT 616]. 53. Ratanlal v. Nanabhai, AIR 1926 Bom 175. 54. Mohamad Siddiqi v. Li Kan Shoo, AIR 1925 Rang 372; see also Madan Mohan v. Jwala Prasad, AIR 1950 East Punj 276. 55. Lallubhai Rupchand v. Chimanlal Nandlal, AIR 1935 Bom 16. 56. Carlish v. Salt, (1906) 1 Ch 335. 57. Shaikh Buddan Sah v. Nigamma, AIR 1979 AP 90. 58. If the buyer does not make any request there is no obligation to produce the deeds, see Maung Po Te v. Maung Shew Ko., 35 IC 373. 59. Jitendra Nath v. Maheshwari Bose, AIR 1965 Cal 45 [LNIND 1964 CAL 152]. 60. Jyoti Prosad Singh Deo v. HV Law & Co. Ltd., AIR 1930 Cal 561. 61. Rathna Bai v. AR Barrass, AIR 1943 Mad 593. 62. Re Sharmans Contract, (1936) 2 All ER 1547. 63. Such relevant information would include questions relating to income or rental of the property, see Prem Chand v. Ram Sahai, AIR 1932 Nag 148. 64. See the s. 54(1)(c). 65. Lakshmidas v. DJ Tata, AIR 1927 Bom 195. 66. Umrah Developers, Bangalore v. Deputy Commissioner, Bangalore Urban District, AIR 2010 Kar 186. 67. Nilmadhav v. Haroprasad, 17 Cal WN 1161. 68. Jamshed v. Burjorji, (1916) ILR 40 Bom 289. 69. Prabodh Kumar Das v. Gillanders Arbuthnot, AIR 1934 Cal 699. 70. Ram Krishna v. Mukund Shanker, AIR 1963 All 47 [LNIND 1962 ALL 118]. 71. Shashi Bhushan v. Rai Chand, AIR 1950 Cal 333 [LNIND 1949 CAL 32]. 72. Royal Bristol Permanent Building Society v. Bomash, (1887) 35 Chd 390. 73. Homby v. Matcham, (1848) 16 Sim 325; Brown v. Sewel, (1853) 11 Hare 49 ; on completion he must deliver the sale deeds to the buyer, see Re Duthy and Jesson, (1898) 1 Ch 419. 74. Darpan v. Kedar Nath, (1916) 1 Pat LJ 140. 75. Barisal Loan Officer v. Satesh Chandra, AIR 1936 Cal 12. 76. Sunita Devi v. Dinbandhu Shah, AIR 2010 Jhar 151 [LNIND 2010 JHAR 368]. 77. Sundara v. Shivalingam, AIR 1924 Mad 360 [LNIND 1923 MAD 127]; see also Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525 [LNIND 1982 SC 31]. 78. Prataprai Trambaklal Mehta v. Jayant Nemchand Shah, AIR 1996 Bom 296 [LNIND 1987 MP 308]; Uttam International v. Jogender Pal Singh, 78 (1999) DLT 254. 79. U. Mya v. Chettyar Firm, AIR 1937 Rang 31. 80. Suryasubha v. Vasudeva, AIR 1956 Andh Pra 113. 81. Sohanlal v. Balkishan, AIR 1960 Punj 275. 82. Subbaroyar v. Kottava, (1916) Mad WN 284. 83. Sri Ram v. Kidari Prashad, AIR 1925 Lah 481. 84. Nilmadhab v. Haroprasad, 17 Cal WN 1161; Kutcherlakota Vijaylakshmi v. Radimeti Rajuratnamba, AIR 1991 Andh Pra 50; Krishnamma v. Mali, (1920) ILR 43 Mad 712; Sagaji v. Namdev, (1899) ILR 23 Bom 525.

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(IN) Poonam Pradhan Saxena : Property Law 85. Syed Noor v. Qutubuddin, AIR 1956 Hyd 114. 86. Shib Lal v. Bhagwan, (1888) 11 All 244; Dhuri v. Kishan Prasad, AIR 1965 Pat 29; Pran Dei v. Sat Deo, AIR 1929 All 85; Utin v. Chettyar Firm, AIR 1933 Rang 401; Baijnath v. Paltu, (1908) ILR 30 All 125; see also Krishnamma v. Mali, (1920) 43 Mad 712; Velayutha v. Govindaswami, (1907) 30 Mad 524, wherein it was held that the buyer is entitled to possession despite non-payment of price and cannot be put to equitable terms with respect to payment of price; see also Basalingava v. Chinnava, AIR 1932 Bom 247, wherein it was held that in a suit for recovery of possession the court is not competent to pass a decree for possession conditional upon payment of the unpaid price. 87. B Rajamani v. Azhar Sultana, AIR 2005 Andh Pra 260. 88. Panchapagesa Ayyar v. M Arunachala Mudaliar, (1932) Mad WN 122; Hyam v. ME Gubbay, AIR 1916 Cal 1; Anandilal v. Abdul Hussain, AIR 1964 Raj 240 [LNIND 1964 RAJ 41]. 89. Sashi Bhusan v. Rai Chand, AIR 1950 Cal 333 [LNIND 1949 CAL 32]. 90. Raj Kumar v. Shanti Swaroop Gandhi, AIR 1992 P&H 18; Purna Chand v. Official Liquidator, AIR 1960 Punj 51. 91. Mumtazunnissa v. Bhagirath, 6 IC 114. 92. The seller of the leasehold property is bound to pay rents accruing due up to the date of the sale, see Phus Kuer v. Rambhajan Singh, AIR 1924 Pat 822. 93. By agreement the parties may agree that the vendor may pay all public charges due at the date of the delivery of possession instead of the date of the sale, see, Govindram v. State of Gondal, AIR 1950 PC 99. 94. Diamond Infotech Pvt Ltd v. Kolkatta Municipal Corporation, AIR 2010 (NOC) 910 (Cal). 95. Dantaluri v. Kanjuluri, 8 IC 435. 96. Nawal Kishore v. The Municipal Board Agra, AIR 1943 All 115 (FB); Chandu Ram v. Municipal Commr of Kurseong Municipality, AIR 1951 Cal 398; MC v. Ramjilal, AIR 1941 Oudh 305; Municipal Board, Cawnpore v. Roop Chand Jain, AIR 1940 All 459. 1.

Nellore Municipality v. Dwarapally Kottamma, (1907) ILR 30 Mad 423.

2.

State of Gondal v. Gobindram, AIR 1945 Bom 187.

3.

Ahmedabad Municipality v. Haji Abdul Gafur Haji Hussenbhai, AIR 1971 SC 1201 [LNIND 1971 SC 183].

4.

Nathu v. Burtonath, AIR 1922 PC 176; existence of a covenant in the deed guaranteeing non existence of an encumbrance will entitle the seller to indemnity, see Imam Din v. Bhag Sing, AIR 1936 Lah 746; the Allahabad High Court denied indemnity on the ground of non existence of such provision under the contract Act see Dost Mohamad v. Sangad, (1884) ILR 6 All 67.

5.

Manishanker v. Ramkrishna, (1906) 6 Bom LR 832; Gouri Shanker v. Munnu, AIR 1935 Oudh 142; Rinsa Ansa v. Mohanlal, AIR 1938 Nag 257; Nathu v. Burtonath, AIR 1922 PC 176; Bhagwati v. Banarasi, AIR 1928 PC 98; Ramgopal v. Thakur, AIR 1922 All 508; Ganpat v. Mangilal, AIR 1962 MP 144 [LNIND 1961 MP 87].

6.

Chendrayya v. Hanumanayya, AIR 1927 Mad 193 [LNIND 1926 MAD 214]; Ram Chunder Dutt v. Dwarkanath, (1889) ILR 16 Cal 330; Subbayya v. Rajgopala, (1915) ILR 38 Mad 887; Mohamad Ali v. Venkatapathi, (1920) 39 Mad LJ 449; Lakhpat Kuer v. Durga Prasad, AIR 1929 Pat 338. In such a case though there is no fraud the statutory liability of the seller to deliver property free from encumbrances remains, see Basaraddi Sheikh v. Enajaddin, (1898) ILR 25 Cal 298.

7.

R Muninarayana v. CP Chimanswami, AIR 1952 Mys 120.

8.

Arun Prakash v. Tulsi, AIR 1949 Cal 510; see also Lookmanji v. Mangal Singh, AIR 1938 Lah 743, wherein the buyer was not allowed any damages on the ground that in defending a suit for mortgage he did not show sufficient diligence.

9.

Gobardhan Das v. Afzal Hussain, AIR 1932 All 553.

10. Jugal Kishore v. Banwarilal, AIR 1929 All 791; Alagappa v. C Firm, AIR 1937 Rang 287; M Mahamood Mamuna Lebbai v. National Bank of India Ltd. Tuticorin through Manager, AIR 1944 Mad 572 [LNIND 1944 MAD 142]; Harcharan Lal v. Nurul Hasan Khan, AIR 1934 Oudh 492; if the sale is subject to an encumbrance, the seller, in addition to the price of his interest, gets an implied indemnity against encumbrances affecting the property, see Izzatunnisa v. Kunwar Pertab Singh, (1909) ILR 31 All 583; Parshottam v. Taiwar Ali, AIR 1945 All 39; Ram Barai Singh v. Sheodeni, (1912) 16 Cal WN 1040. 11. Venkataranga v. Ramaswami, AIR 1926 Mad 173 [LNIND 1925 MAD 232]; Visalakshmi v. Veeraswami, AIR 1927 Mad 1072 [LNIND 1927 MAD 236]. 12. Bidhubhushan Pal v. Umesh Chandra, AIR 1930 Cal 568. 13. Kishan Lal v. Suryadatta, AIR 1958 MP 239; Mtilal v. Nanhelal, AIR 1930 PC 287. 14. Nathulal v. Phool Chand, AIR 1970 SC 546 [LNIND 1969 SC 408]; Errammma v. Parwatamma, AIR 1972 Mys 121; Chandnee Widya Vati Madden v. CL Katial, AIR 1964 SC 978 [LNIND 1963 SC 77].

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(IN) Poonam Pradhan Saxena : Property Law 15. See however,A.K Lakshmipathy v. Rai Saheb Pannalal H Lahoti Charitable Trust, AIR 2010 SC 577 [LNIND 2009 SC 1934], wherein it was held that in absence of a clause in the contract requiring the seller to obtain a certificate from the Endowment department before effecting the purchase, his liability under s. 55 would not be attracted and there would be no obligation on his part to get the clearance of permission or exemption from the Endowment department of state for purposes of transferring the title of the property in question. 16. See the Specific Relief Act, 1882, s. 17(b). 17. Rajendrakumar v. Poosammal, AIR 1975 Mad 379 [LNIND 1974 MAD 221]. 18. Deepchandra v. Sajjan Ali Khan, AIR 1951 All 93 [LNIND 1949 ALL 44](FB); see also Babu Bindeshri v. Mahant Jairam, (1887) ILR 9 All 705, wherein the buyer had filed a suit for specific performance of the contract as the seller had refused to give him an absolute guarantee of title. The court dismissed the suit and held that the buyer was not entitled to an absolute guarantee of title. 19. Basaraddi v. Enajaddi, (1898) ILR 25 Cal 289; Haji Mohamad v. Musaji, AIR 1929 All 358. 20. Mani J. Meenattoor v. Amy Homi Calabawalla, AIR 1986 Ker 149 [LNIND 1985 KER 110](DB), wherein it was held that if the title was subject to a statutory charge then plaintiffs preventing the defendants from cutting and removing the trees is not in breach of the covenant. 21. Kulla Mal v. Umra, 61 IC 604; Shankaran Nair v. Ramaswami, 27 IC 889. 22. Shaligram v. Narain, 45 IC 669. 23. Thomas v. Hanuman Prasad, AIR 1929 All 837. 24. Gobardhan Das v. Afzal Hussain, AIR 1932 All 553. 25. Balagurumurthy v. Ramakrishna, AIR 1921 Mad 277 [LNIND 1921 MAD 75]; Samu Pathan v. Chidambara, (1916) 29 Mad LJ 454. 26. Abdullah Khan v. Abdul Rahman Beg, (1896) ILR 18 All 322; RN Dawar v. Ganga Saran Dhama, AIR 1993 Del 19 [LNIND 1992 DEL 463]; Delhi Gramani v. Ramchandra, AIR 1953 Mad 769 [LNIND 1951 MAD 379]; Janga Venkata v. Jamal Ahmed, (1915) 29 Mad LJ 122. 27. Flight v. Booth, (1834) 1 Bing NC 370. 28. Administrator General of Bengal v. Aghore Nath, (1902) ILR 29 Cal 420; Hussonally v. Tribhowandas, AIR 1921 PC 40. 29. Kishen Lal v. Kinloch, (1881) All WN 164. 30. Ram Swarup v. Fattu, AIR 1960 All 367 [LNIND 1959 ALL 125]; Sohanlal v. Balkishan, AIR 1960 Punj 275. 31. Adikesavan v. Gurunatha, 40 Mad 338; Gauriamma Kanakamma v. Kasavan Govindan, AIR 1986 Ker 30 [LNIND 1985 KER 136]; Saraswati Bai v. Madhukar, AIR 1950 Nag 229; Ramachandra v. Dwarkanath, (1889) ILR 16 Cal 330; Sheo Kumar Tewari v. Central Co-operative Bank, AIR 1947 Pat 477; Ram Swarup v. Faltu, AIR 1960 All 367 [LNIND 1959 ALL 125]; Nannapaneni v. Ankineedu, AIR 1962 AP 192 [LNIND 1960 AP 86]; Avadesh v. Zakaul, AIR 1944 All 243; Kalka Singh v. Namdhar Khan, AIR 1933 All 389; Rinsa Ansa v. Mohanlal, AIR 1938 Nag 257; Subayya v. Rajagopala, (1915) ILR 38 Mad 887; Parasurma v. Muthuswami, AIR 1925 Mad 1209 [LNIND 1925 MAD 246]; Muhamad Ibrahim v. Nakched, (1910) 7 All LJ 752; Lakhpat Kuer v. Durga Prasad, (1929) ILR 8 Pat 432; Nawal Kishore v. Sarju, AIR 1932 All 546. 32. Kali Din v. Madho, AIR 1923 All 169. 33. Basaraddi v. Enajaddi, (1898) ILR 25 Cal 289; Kanshi Ram v. Jai Singh, AIR 1922 3 Lah 590; Raghava v. Samachariar, (1914) Mad WN 57; Muhamad Ibrahim v. Nakched, (1910) 7 All LJ 752; Mehdi Hassan v. Jafar Khan, (1905) 8 OC 345. 34. Bapu v. Kashi Ram, AIR 1929 Bom 361; Harilal v. Mulchand, AIR 1928 Bom 427; Vishvanath v. Bala, (1916) 18 Bom LR 292. 35. Ghulam v. Imdad, 4 All 337; cont Kaliyan v. Fazal, AIR 1926 Lah 455, 94 IC 1055. 36. Chidambaram v. Sivathasamy, (1905) 15 Mad LJ 396. 37. Kahsirao v. Zabu, AIR 1932 Nag 5 (FB). 38. Chandrayya v. Manduva, AIR 1972 Mad 193; Saraswathibai v. Madhukar, AIR 1950 Nag 229; Subramania v. Swaminatha, (1898) ILR 21 Mad 69; see also Ram Chunder v. Bhagwati, AIR 1914 All 937, wherein it was held that as the implied covenant was excluded by the express covenant the vendees paying a sum exceeding the purchase money have no remedy; but see Bhagwati v. Banarasi Das, AIR 1928 PC 98, wherein it was held that the covenant for quiet enjoyment does not exclude the implied covenant for title. 39. Gwasha Lal v. Kartar Singh, AIR 1961 J&K 66; Digambar Das v. Nishibala Debi, 8 IC 91; Mahomad Ali v. Venktapathi, (1920) 39 Mad LJ 449. 40. Muhammad Siddiq v. Muhammad Nuh, AIR 1930 All 771; Ragahava v. Samachariar, (1914) Mad WN 57. 41. Sri Ram v. Kedari, AIR 1925 Lah 481.

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(IN) Poonam Pradhan Saxena : Property Law 42. Nathuni Sah v. Satyanarain Prasad, (1961) AP 11. 43. L Dugar Mal v. Gobind Swaroop, AIR 1950 East Punj 74. 44. Bhagwati v. Banarasi, AIR 1928 PC 98. 45. Nagardas v. Ahmad Khan, (1897) ILR 21 Bom 175. 46. Ishro v. Naubat Rai, AIR 1933 Lah 522; with reference to a covenant for quiet enjoyment a general covenant to indemnify the purchaser against any loss that might accrue in connection with sale has been held to apply to eviction by a pre-emptor, see Khanmon Bibi v. Shah Mali, (1908) PR 111; Hanwant Rai v. Chandi Prasad, AIR 1929 All 293; Kalyan Singh v. Fazal Din, AIR 1926 Lah 455; Sita Ram v. Nank Chand, AIR 1926 Lah 182. 47. Vishvanath v. Deokabai, AIR 1948 Nag 382. 48. Ram Jaggi Rai v. Kauleshwar Rai, (1908) ILR 30 All 405; Ratan Bai v. Ghasiram, AIR 1932 Bom 36; Mangaladha v. Gandamal, AIR 1929 Lah 388; Mul Kunwar v. Chattar Singh, (1908) ILR 30 All 402; Ramchandra v. Tohfah, (1904) 26 ILR All 519; Hanwant Rai v. Chandi Prasad, AIR 1929 All 293. 49. Maida v. Kishan Bahadur Singh, AIR 1934 All 645. 50. Bapu v. Kashi, AIR 1929 Bom 361; Hanwant v. Chandi, AIR 1929 All 293; Ramayya v. Kotayya, AIR 1930 Mad 748 [LNIND 1929 MAD 226]; Kishen Lal v. Kiinloch, (1881) All WN 164. 51. Abdul v. Kisan, AIR 1931 Nag 166. 52. Jhamaklal v. Mishrialal, AIR 1957 MB 23. 53. Eastern Mortgage and Agency Co. Ltd. v. Fuzhul, (1925) 52 Cal 914, AIR 1926 Cal 385. 54. Siddiq v. Nur, AIR 1930 All 771. 55. See the s. 55(3); Bhavani v. Devrao, (1887) ILR 11 Bom 485. 56. Bhavani v. Devrao, (1887) ILR 11 Bom 485. 57. Aranachalam Asari v. Sivan Perumal Assari, AIR 1970 Mad 226 [LNIND 1968 MAD 118]. 58. Khanderao v. Romer, AIR 1941 Bom 48; Re Lowe Capel v. Lowe, (1901) 36 LJ 73. 59. BR Mulani v. AB Aswathanarayana, AIR 1993 Kant 257; see also Malikajappa v. Bhimappa, AIR 1966 Mys 86. 60. National Insurance Co. v. Life Insurance Corpn., AIR 1963 SC 1171 [LNIND 1962 SC 421]; Kishanlal v. Chandrabala Devi, AIR 1990 AP. 72 [LNIND 1989 AP 179]Subbaroyar v. Kottaya, (1916) Mad WN 284. 61. Moung Shwe Goh v. Maung Inn, (1917) ILR 44 Cal 542; Fludyer v. Cocker, (1805) 12 Ves 25. 62. Govindraju v. Income Tax Commr, AIR 1968 SC 129 [LNIND 1967 SC 142]; Satinder Singh v. Umrao Singh, AIR 1961 SC 908 [LNIND 1961 SC 41]; National Insurance Co. v. Life Insurance Corpn, AIR 1963 SC 1171 [LNIND 1962 SC 421]. 63. Narasingerji v. Panuganti, AIR 1921 Mad 498; Puliyadi Ellarayan v. Nagendra, 42 IC 509. 64. Subbarao v. Vesudevsastry, AIR 1956 Andh Pra 113. 65. Ramalingam v. Jadammal, (1956) Andh WR 528. 66. Suryaprakasa Rao v. Venkata Dikshitulu, AIR 1933 Mad 844 [LNIND 1932 MAD 288]; Muthia Chetty v. Sinna, (1912) ILR 35 Mad 625. 67. Ratanlal v. Municipal Commr, (1919) ILR 43 Bom 181; Malikajappa v. Bhimappa, AIR 1966 Mys 86; Pandurang v. Mahadeva, AIR 1922 Bom 186; Dinkar Rao v. Ayub, AIR 1923 Nag 37. 68. Nalamathu Venkaiya v. BS Neelkanta, AIR 2005 Andh Pra 535. 69. Sohanlal v. Sidhelal, AIR 1939 Nag 210. 70. Munugamuru Lakshmidewamma v. Land Acquisition Officer, AIR 1985 AP 200 [LNIND 1984 AP 301]. 71. Venkatacharyulu v. Venkatasubba, AIR 1926 Mad 55 [LNIND 1925 MAD 23]. 72. Sonu Achari v. Singara Achari, AIR 1945 Mad 407. 73. Kesho Das v. Jiwan, AIR 1941 Lah 10. 74. Rajaram v. Chedda, AIR 1952 Cal 93. 75. Kocharlokota Venkata v. Ravu Venkata Kumara, AIR 1936 PC 204. 76. Subbarao v. Vesudevsastry, AIR 1956 AP 113 [LNIND 1955 AP 107]. 77. Mathura Prasad v. Ram Swaroop, AIR 1934 All 617.

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(IN) Poonam Pradhan Saxena : Property Law 78. Nalamathu Venkaiya v. BS Neelkanta, AIR 2005 AP 535 [LNIND 2005 AP 645]. 79. Velayutha v. Govindaswamy, (1907) ILR 30 Mad 524; Krishnamma v. Mali, (1920) ILR 43 Mad 712. 80. Sagaji v. Namdev, (1899) ILR 23 Bom 525; Raj Lingam v. Somanna, AIR 1967 Andh Pra 7; Nilmadhab v. Haroprasad, 17 Cal WN 1161; Kutcherlakota Vijaylakshmi v. Radimeti Rajuratnamba, AIR 1991 Andh Pra 50; Krishnamma v. Mali, (1920) ILR 43 Mad 712; the right of the purchaser to get possession and the right of the seller to get the purchase money may be enforced as part of a single action, see Syed Noor v. Qutbuddin, AIR 1956 Hyd 114, and if the buyer sues for possession he may be required to deposit the balance amount in the court failing which his suit will be dismissed; see Shib Lal v. Bhagwan, (1888) 11 All 244; Dhuri v. Kishan Prasad, AIR 1965 Pat 29; Pran Dei v. Sat Deo, AIR 1929 All 85; Utin v. Chettyar Firm, AIR 1933 Rang 401; Baijnath v. Paltu, (1908) ILR 30 All 125; see also Krishnamma v. Mali, (1920) ILR 43 Mad 712; Velutha v. Govindswami, (1900) 30 Mad 524, wherein it was held that the buyer is entitled to possession despite non payment of price and cannot, be put to equitable terms with respect to payment of price; see also Basalingava v. Chinnava, AIR 1932 Bom 247, wherein it was held that in a suit for recovery of possession the court is not competent to pass a decree for possession conditional upon payment of the unpaid price. 81. Akhoy Kumar v. Corpn. of Calcutta, (1915) 42 Cal 625, 27 IC 621. 82. Rajagopala v. Ranganatha, AIR 1934 Mad 615. 83. Dulchand v. Ganpat, AIR 1972 Nag 332. 84. Bhag Mal v. Shiromani Gurudwara, AIR 1934 Lah 348. 85. Gurdayal v. Karan Singh, (1916) ILR 38 All 254; Ramchand v. Sheodas, (1921) ILR 43 All 314; Akhoy Kumar v. Corpn of Calcutta, 21 Cal LJ 177; Tehtiram v. Kashibai, (1909) ILR 33 Bom 53; Meghraj v. Abdullah, (1914) 12 All LJ 1034; Syed Hasan Bagar v. Sheo Narain Singh, AIR 1926 Oudh 81; Alliance Bank of India v. Walsh, (1883) PR 66. 86. Motilal v. Bhagwan Das, (1909) 31 All 443, 3 IC 497. 87. Tehitram v. Kashibai, (1909) ILR 33 Bom 53. 88. Bai Devmani v. Ravishanker, AIR 1929 Bom 147; Goli Ramaswami v. Naria Jagannadha Rao, AIR 1962 Andh Pra 94; Raghavendra v. Venkataswami, AIR 1930 Mad 251 [LNIND 1929 MAD 190]. 89. Tehliram v. Kashibai, (1909) 33 Bom 53, 1 IC 64. 90. Bashir v. Nazir, (1921) ILR 43 All 544. 91. Sivasubramania v. Subramania, (1916) Mad WN 306. 92. Harchand v. Kishori, 7 IC 639; Meghraj v. Abdullah, (1912) 12 All LJ 1034; Daulatram v. Indrajit, AIR 1933 Oudh 33; Subramania Mudaliar v. Gnana Sambanda, (1911) 21 Mad LJ 359; Kunchithapatham v. Palamalai, (1917) 32 Mad LJ 347; Kesho Das v. Jiwan, AIR 1941 Lah 10; Shanker Bala v. Gotiram Pandurang, AIR 1942 Bom 67; Mela Ram v. Ram Das Joshi, AIR 1942 Lah 275; where part of the purchase money is left with the buyer to pay off the creditors of the seller, the seller is entitled to a charge from the amount left with the buyer if the latter omits to pay it to the creditors; see Daulat Ram v. Indrajit, AIR 1933 Oudh 33; Gangaram v. Raghubans, (1948) ILR 27 Pat 898. 1.

Sagaji v. Namdev, (1899) 23 Bom 525; Baijnath v. Paltu, (1908) 30 All 125; Velayuth v. Govinda, (1907) 30 Mad 524; Nilmadhab v. Haroprasad, (1913) 17 Cal WN 1161.

2.

Basalingava v. Chinnova, AIR 1932 Bom 247.

3.

Shah Lal v. Indrajit, (1900) 22 All 370.

4.

Bashir v. Nazir, (1921)43 All 544.

5.

Mela Ram v. Ram Das Joshi, AIR 1942 Lah 275; Hari Ram v. Denapat Singh, (1883) ILR 9 Cal 167.

6.

Moti lal v. Bhagwan Das, (1909) ILR 31 All 443.

7.

Gurdayal v. Karan Singh, (1916) ILR 38 All 254; Tehtiram v. Kashibai, (1909) ILR 33 Bom 53.

8.

Raghukul v. Pitram, AIR 1931 All 99.

9.

Shiva Narain Sah v. Baidya Nath Prasad Tiwary, AIR 1973 Pat 387.

10. Raghukul Tilak v. Pitam Singh, AIR 1931 All 99. 11. The seller has to convey a valid title free from encumbrances in the property sold, see Raghunath v. Jogeshwar Prasahad Sharma, AIR 1999 Del 383 [LNIND 1999 DEL 493]. 12. Ranganayya Kamma v. SRSUBHIDHI, AIR 1955 Ori 20; Munirunissa v. Akbar Khan, (1908) ILR 30 All 172. 13. Mahtab Singh v. Collector of Saharanpur, AIR 1932 All 454. 14. Muhammad Sadiq v. Nasirullah, (1899) ILR 21 All 223; Veerabhadra v. Subbarayudu, AIR 1942 Mad 650 [LNIND 1942 MAD 114]; Badri Das v. Jivan, (1912) 10 All LJ 480.

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(IN) Poonam Pradhan Saxena : Property Law 15. Ram Ratan v. Abdul Wahid, 81 IC 503; Ram Lal v. Harihar Prasad, AIR 1955 Pat 254; Satyanarayan Murthy v. Sathiraju, AIR 1942 Mad 525 [LNIND 1941 MAD 304]; Subba Rao v. Varadiah, AIR 1943 Mad 482 [LNIND 1942 MAD 387]. 16. Nawal Kishore v. The Municipal Board Agra, AIR 1943 All 115 (FB); Chandu Ram v. Municipal Commr of Kurseong Municipality, AIR 1951 Cal 398; MC v. Ramjilal, AIR 1941 Oudh 305; Municipal Board Cawnpore v. Roop Chand Jain, AIR 1940 All 459. 17. Bhibhuti Bhushan Majumdar v. Mujihar Rehmwi, AIR 1934 Cal 842. 18. Nollore Muncipality v. Dwarapally Kotamma, (1907) ILR 30 Mad 423. 19. Raghunath v. Jogeshwar Prasahad Sharma, AIR 1999 Del 383 [LNIND 1999 DEL 493]. 20. Izattunnissa Begum v. Pertab Singh, (1909) ILR 31 All 583. 21. Kunjikavu Asmma v. Janaki Amma, AIR 1957 Ker 98 [LNIND 1957 KER 27]; for the rights and liabilities of seller and the buyer in a sale subject to encumbrances, see Waman Martand Bhalerao v. The Commr, Central Division, AIR 1924 Bom 524. 22. Arunachala v. Rangiah, (1906) ILR 29 Mad 519. 23. Carbon Resources Pvt Ltd v. The Assam Electricity Regulatory Commission, AIR 2010 Gau 131 [LNIND 2010 GAU 120]. 24. Special Officer (Commerce) NESCO v. Raghunath Paper Mills Pvt Ltd, AIR 2011 Ori 52. 25. See The Transfer of Property Act, 1882, s. 55(6)(a); after completion of the sale all rights of ownership and its incidents pass to the buyer, see The Transfer of Property Act, 1882, s. 8. 26. Achutan v. Parameshwara, AIR 1951 TC 195. 27. Rani Kaniz v. Murtaza, AIR 1937 Oudh 159; Izatunnissa v. Partab Singh, (1909) ILR 31 All 583, PC. 28. Unless he has improperly declined to accept delivery of the property, see The Transfer of Property Act, 1882, s. 55(6)(b). 29. Delhi Development Authority v. Skipper Construction Co. Pvt. Ltd., AIR 2000 SC 573 [LNIND 1999 SC 346]; Chettiar Firm v. Chettiar, AIR 1941 PC 47. 30. Jibahaoo Harising v. Ajabsing, AIR 1953 Bom 145 [LNIND 1952 BOM 15]. 31. Videocon Properties Ltd. v. Balchandra Laboratories, AIR 2004 SC 1787 [LNIND 2003 SC 1144]; Nagammal v. Ayyavu Thevar, AIR 1973 Mad 353 [LNIND 1972 MAD 189]; Abdul Hamid v. Mohamad Ali, AIR 1952 Bom 67 [LNIND 1951 BOM 19]; Hari Bapuji v. Bhagu Sadhu, AIR 1937 Bom 142; see also Mannad Koya v. Ismayil, (1979) Ker LT 9; Madhava Kamathi v. Gopala Pai, (1965) Ker LT 877; Meppallipoyil Ibravi v. Poolakkadiyil Pokkari, AIR 1990 Ker 169 [LNIND 1989 KER 18]; Pushkanarayan v. Kubrabai, (1969) 71 Bom LR 769. 32. Delhi Development Authority v. Skippers Constructions (Pvt.) Ltd., AIR 2000 SC 573 [LNIND 1999 SC 346]. 33. Shankri v. Milkha Singh, AIR 1941 Lah 407. 34. Asgar s. Patel v. Union of India, AIR 2000 SC 2222 [LNIND 2000 SC 728]; see also CB Gautam v. Union of India, (1993) 1 SCC 78 [LNIND 1992 SC 833]. 35. Juggo v. Harihar Prasad, AIR 1940 All 41. 36. Subhadra Bai v. Mahomedbhai, AIR 1924 Bom 187. 37. Sundaramier v. Krishnamachary, AIR 1966 Mad 330 [LNIND 1965 MAD 95]; Balvanta v. Bira, (1899) ILR 23 Bom 56; Adari v. Nookalamma, AIR 1931 Mad 592 [LNIND 1930 MAD 195]; Kesar v. Munna, (1917) 13 Naglr 19 ; see also Anchi v. Maida Ram, AIR 1987 Raj 11. 38. Pancham Pal v. Nirode Kumar, AIR 1962 Cal 12 [LNIND 1960 CAL 153]; see also Kapadvanj v. Ochhavlal, AIR 1928. 39. TN Hardas v. Babudas, AIR 1973 SC 1363. 40. Dhanu Baba v. Gulab Eknath, (1960) 62 Bom LR 940. 41. Cornell v. Henson, (1900) 2 Ch 298. 42. Income Tax Officer v. KAGOUNDASWAMY, AIR 1978 Mad 186 [LNIND 1977 MAD 134]. 43. Krishan Chundra v. Khan Mamud, AIR 1936 Cal 51; Narendra v. Nipendra, AIR 1948 Cal 208. 44. Bishen Chand v. Radha, (1897) ILR 19 All 489; Kunwar Charanjit v. Har Swarup, AIR 1926 PC 1; Verrayya v. Sivayya, (1914) 27 Madlj 482; Natesa v. Appavu, (1915) ILR 38 Mad 178. 45. Shankerji v. Ratilal, AIR 1956 Bom 443 [LNIND 1955 BOM 92]. 46. Ibrahim Bhai v. Fletcher, (1897) ILR 21 Bom 827; Habib Ali v. Rafikuddin, AIR 1968 Assam & Nagaland 26. Where the title of the seller is clear the buyer is not entitled to the refund, see Tulsidas v. Prahlad, AIR 1943 Sau 92.

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(IN) Poonam Pradhan Saxena : Property Law 47. Karsandas v. Gopaldas, AIR 1924 Bom 282. 48. Alokeshi v. Harachand, (1897) ILR 24 Cal 897; Balvanta v. Bira, (1899) ILR 23 Bom 56; Ibrahim Bhai v. Fletcher, (1897) ILR 21 Bom 827. 49. Dwarkaprasad v. Kathleen Florence, AIR 1955 Nag 38. 50. Aberfoyle Plantations v. Cheng, (1968) 3 Aller 552. 51. Ganpati Ram v. Baliram Raghunath, AIR 1974 Bom 155 [LNIND 1973 BOM 21]. 52. Re Longwal Farms, (1968) Aller 552. 53. Sardarilal v. Shakuntala Devi, AIR 1961 Punj 378. 54. Letita Castelino v. Jerome DSILVA, AIR 1972 Mys 28; KCNGowda v. Molakram, AIR 1958 Mys 10 see also Naresh Chandra v. Ramchandra, AIR 1952 Cal 93. 55. Soper v. Arnold, (1887) 37 Chd 96. 56. Saidun Nisssa Hoque v. Calcutta Vyapar Pratishthan, AIR 1978 Cal 285 [LNIND 1977 CAL 323]. 57. Eastern Mortgage v. Muhamad Fuzlul, AIR 1926 Cal 385; Jhamaklal v. Mishrilal, AIR 1957 Madh Bharat 23. 58. See Delli Gramani v. Ramachandran, AIR 1953 Mad 769 [LNIND 1951 MAD 379]; Abdullah Khan v. Abdur Rahman Beg, (1896) ILR 18 All 322; Permanand Bhojraj v. Matumal Phatumal, AIR 1933 Sau 144; The buyer has aright to set aside the sale for fraud see Sadashiv v. Dhakubai, (1881) ILR 5 Bom 451; Moula Buksh v. Dharamchand, (1960) 65 Cal WN 881 ; Re Sheo Thakur Mahton, 58 IC 529. 59. Ramasubbu v. Muthiah, AIR 1925 Mad 968; Harilal v. Mulchand, AIR 1928 Bom 427. 60. Seddon v. North Eastern Salt Co., (1905) 1 Ch 326. 61. Dagdu v. Bhana, (1904) ILR 28 Bom 420; Nathu v. Hamid, AIR 1926 Oudh 344. 62. Eastern Mortgage v. Muhamad Fuzlul, AIR 1926 Cal 385; Champalal v. Roopa, AIR 1963 Raj 38 [LNIND 1962 RAJ 192]; Udho Das v. Mehr Baksh, AIR 1933 Lah 262. 63. Desikhacharyulu v. Narsinghacharyulu, AIR 1958 AP 278. 64. Suleman Vadu v. Trikamji Velji, (1875) 12 Bom HCR 10; Delli Gramani v. Ramachandran, AIR 1953 Mad 769 [LNIND 1951 MAD 379]; Janga Venkata Reddy v. Jamal Ahmed Saheb, (1915) 29 Mad LJ 611. 65. Raghava v. Samachariar, (1914) Mad WN 57. 66. Vishvanath v. Bala, (1916) 18 Bom LR 292. 67. Basaraddi v. Enjaddi, (1898) ILR 25 Cal 298; Harilal v. Mulchand, AIR 1928 Bom 427. 68. Sundara v. Sivalingam, AIR 1924 Mad 360 [LNIND 1923 MAD 127]; Krishnamma v. Mali, (1920) ILR 43 Mad 712. 69. Delhi Development Authority v. Skipper Construction Co Pvt Ltd., AIR 2000 SC 573 [LNIND 1999 SC 346]; Sultan Kani v. Mahomad, AIR 1929 Mad 189 [LNIND 1928 MAD 258]; Ibrahim Bhai v. Fletcher, (1897) ILR 21 Bom 827; Balwanta v. Bira, (1899) ILR 23 Bom 56. 70. Bhavani v. Devrao, (1887) ILR 11 Bom 485. 71. Nathu Khan v. Burtonath, AIR 1922 PC 176; Manishankar v. Ramkrishna, (1904) 6 Bom LR 832. 72. Subayya v. Garikapati, AIR 1957 Andh Pra 307. 73. Brij Mohan v. Sugra Begum, (1990) 4 SCC 147. 74. Motivahaoo v. Vinayak, (1888) 12 Bom 1; Indra Narain v. Baadan Charan Das, 47 IC 340; Hiranand v. Mahia, (1876) PR 90. 75. Jamshed v. Burjorji, (1916) ILR 40 Bom 289; Suryanarayanamurthy v. Satyanarayanamurthy, AIR 1925 Mad 211; Mahdeo v. Narain, (1920) 24 Cal WN 330. 76. Janaki v. Ambalavasi, AIR 1942 Mad 583. 77. Though the term used is mortgage but the rule applies also to a charge, see Mohamad Yunus Khan v. Court of Wards, Balrampur Estate, AIR 1937 Oudh 307; see also Nilkanthrao v. Satyabhamabai, AIR 1944 Nag 25. It does not however apply to leases, see Low & Co v. Hazarimull, AIR 1926 Cal 525. 78. This principle confers a statutory right on the buyer of one property sold to him out of several mortgaged properties and cannot be extinguished unless the intention was to extinguish the entire mortgage, see Tulsi Ram v. Manku Ram, AIR 1952 All 153. 79. Mortgage debt is a charge on the property under The Transfer of Property Act, 1882, s. 56 and it remains subsisting on the property till duly discharged, see VP Mahambra v. Maria Alcina De Menezes E Gonsalves, AIR 1995 SC 973 [LNIND 1994 SC 965].

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(IN) Poonam Pradhan Saxena : Property Law 80. A mortgagee under the unamended section had a right to proceed against whatever property he chose and could not be compelled to split his security unless he represented the seller and the courts using their discretion under the the Code of Civil Procedure 1908, O XXXIV, r. 5 adjusted the equities by requiring the mortgages to proceed first against the unsold properties. Under the amended section, the purchaser can proceed as of right, see Narayanaswami v. Vellayya, AIR 1924 Mad 366 [LNIND 1923 MAD 222]; Bhikari Das v. Dilip Singh, (1895) ILR 17 All 434; Lala Dilawar v. Dewan Balakiran, (1885) ILR 11 Cal 258; Tara Prasanna v. Nilmont, (1914) ILR 41 Cal 418; Sambandam v. Ramaswamy, AIR 1964 Mad 547 [LNIND 1964 MAD 35]; Subraya v. Ganpa, (1911) ILR 35 Bom 395; Rajkeshwar Prasad v. Mohammad, (1924) ILR 3 Pat 522; Raghavachariar v. Krishna, AIR 1924 Mad 509. 81. See The Transfer of Property Act, 1882, s. 56. Marshalling arises under this rule when the property is sold free from encumbrances which is different from the case where property is sold, subject to a mortgage and contribution is applicable, see Rama Shanker v. Ghulam Hussain, AIR 1921 All 323. 82. Kasuri Koteshwar Rao v. KV Rao, AIR 1973 Andh Pra 46. 83. Timmappa v. Lakshmamma, (1882) ILR 5 Mad 385; Ram Shanker v. Gulam Husain, AIR 1921 All 323; Upendra Nath v. Kali Charan, AIR 1930 All 634; Naubat Lal v. Mahadeo Prasad, AIR 1929 All 309; Rama Raju v. Subbarayudu, (1882) ILR 5 Mad 387. 84. Lachminarayan v. Janmaijai, (1953) Andh Pra 193. 85. Magni Ram v. Mehdi Hossein, (1904) ILR 31 Cal 95; Ramlochan v. Ram Narain, (1898) 1 Cal LR 296; Din Dayal v. Gur Saran Lal, (1920) ILR 42 All 336. 86. Kampta Singh v. Chaturbhuj Singh, AIR 1934 PC 98. 87. Achanta Venkata v. Manna Venkayyamma, AIR 1946 Mad 59. 88. Pritiviraj v. Rukmin, AIR 1926 All 415. 89. Mangayya v. Achchaymma, AIR 1954 Mad 224. 90. See The Transfer of Property Act, 1882, s. 57. In this section court means (1) a High Court in the exercise of the ordinary or extraordinary original civil jurisdiction; (2) the court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situated; (3) any other court which the state government may from time to time, by notification in the Official Gazette declare to be competent to exercise the jurisdiction conferred by this section. 91. The principle has no application in cases of an adjustment of a decree out of court; see Mallikarjun A Sastri v. Narasimha, (1901) ILR 24 Mad 412.

End of Document

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 4

CHAPTER 4 Of Mortgages of Immovable Property “MORTGAGE”

Section 58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.— (a) A mortgage is the transfer of an interest in specific immovable 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 mortgagemoney, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. (c) Mortgage by conditional sale.— Where, the mortgagor ostensibly sells the mortgaged property— on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or

(IN) Poonam Pradhan Saxena : Property Law

on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

(d) Usufructuary mortgage.— Where the mortgagor delivers possession 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 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 or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. (e) English mortgage.— Where the mortgagor binds himself to repay the mortgagemoney on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage. (f) Mortgage by deposit of title-deeds.— Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds. (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.

MORTGAGE Human beings have multifarious needs, and borrowing money for satisfaction for these needs is perhaps as old as civilization itself. Moneylenders wanting security for the repayment of the loan gave birth to the system of hypothecation or mortgage of property, movable or immovable. In the beginning, property kept as a security was delivered to the one who advanced the loan, and it was forfeited in the event of the non-payment of loan despite its worth. This was also a universal practice that the value of the property kept as a security for the repayment of the loan was much higher than the amount of loan raised, even if calculated Page 2 of 73

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with interest. Simple money lending or money lending on the strength or security of immovable property has again been in existence from time immemorial. However, here the possession continued with the mortgagor, but the property was again forfeited in the event of non-payment of the loan. In the absence of clear rules, exorbitant interest rates and conditions favourable to the mortgagee yet grossly adverse to the mortgagor, the whole transaction of mortgage was perceived as a transaction, on an entirely different platform than other civil contracts, like sale and purchase of property. Thus the prevalent understanding of a mortgage deal was that it is a transaction, where, a person who is in need of money and borrows it from another on the strength of some tangible property of value higher than the loan amount. He promises to repay the loan within a specified time. In this manner, the economic needs of the borrower are met with. The benefit coming to the mortgagee in this transaction was that he was entitled to charge an interest on the loan amount and would get back more than what he had lent. The transaction, in theory, therefore, was for the mutual benefit of both the parties. However, the inequality of the standing of both the parties was evident as almost in all communities, the general practice was that in the event of non-payment of loan amount by the mortgagor, the ownership in the property passed to the mortgagee without him having to pay anything extra. In certain communities, charging interest from the needy was prohibited, therefore, the system of mortgage prevalent among those communities could be compared to what is presently called a possessary mortgage or a usufructuary mortgage. In this transaction, the possession of the property was delivered to the mortgagee who was entitled to use it till the repayment of loan by the mortgagor. A mortgage by conditional sale was also prevalent in Hindu and Muslim law while English mortgage, to begin with, was limited to contracts involving Europeans and inhabitants of the Presidency towns. After the enactment of the TP Act, systematic and detailed rules were laid down to govern law relating to mortgages and to determine the rights and liabilities of both the mortgagor and the mortgagee. MORTGAGE DEFINED A mortgage is the transfer of an interest in specific immovable 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.11 The transferor is called the 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.2 Thus the essential elements of a transaction of a mortgage are; (i) Parties to a mortgage; (ii) transfer of an interest; (iii)in a specific immovable property; (iv)the purpose is to secure the repayment of money advanced or to be advanced/or is for performance of an engagement that may give rise to a pecuniary liability. Page 3 of 73

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PARTIES TO A MORTGAGE Mortgagor A person effecting the mortgage of his property is called a mortgagor and the one in whose favour it is executed is called a mortgagee. A mortgagor must be a person competent to contract and capable to transfer the property. A minor cannot affect a mortgage,3 but a guardian of minor can affect a valid mortgage with the sanction of the court.4 If several persons execute a mortgage and some of them are minors, the mortgage is only partly invalid. It remains valid and operative for those competent to execute it.5 The mortgage by a judgment debtor of property under the management of collector is void,6 but the personal liability of the mortgagor remains unaffected.7 Where the guardian of a minor executes mortgage of the property of the minor without the sanction of the court, the mortgage is not void but voidable at the option of the minor which he can exercise on attaining majority. If the karta of a joint Hindu family8 executes a mortgage of the joint family property without the consent of the other coparceners, again the mortgage is voidable at the option of the other coparceners. If the mortgage is for a legal necessity, it is not necessary for the mortgagee to see the application of his money and all that he needs to show to the court is that he made reasonable inquiries and acted honestly. A partner of a commercial firm,9 a pardanashin woman,10 one of the several co-owners,11 can effect a valid mortgage. In case of joint tenants, mortgage by one severs the tenancy12 and in case of more than one mortgage their share each is liable jointly and severally.13 Mortgagee Any person who is competent to hold property can be a mortgagee irrespective of his competency to contract. It is competency to hold the property and not competency to contract which is material here, and therefore even a minor14 is competent to be a mortgagee. However, as the court is not a person, it is not competent to be a mortgagee.15 Transfer of an Interest In a mortgage there is, necessarily, a transfer of an interest in the property for a specific purpose. For instance, A borrows money from B and undertakes to repay it within a period of one year. The agreement also provides that if A is not able to arrange money, he would sell his property and repay the loan out of the sale proceeds. This is not a transaction of mortgage, as no interest has been transferred in favour of the mortgagee. What that interest is, would depend upon the nature and type of mortgage which is effected. For example, in a simple mortgage, the transferor transfers a right to cause the property to be sold. In usufructary or possessory mortgage, the right to possess and enjoy the property is transferred. Likewise, in an English mortgage, what is transferred is the ownership while the mortgagor retains a right of redemption; or a right to get his property back. Transfer of an interest as distinguished from a personal liability creates a relationship of the Page 4 of 73

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transferee with the property. Therefore even if the property changes hands, i.e., the ownership changes, the relationship of the transferee with the property continues. After effecting a mortgage by transferring an interest in the property, if the mortgagor sells the property to a third party, the mortgage would continue to be effective and valid. Rather, the third party takes the property subject to the mortgage. Interest Ownership of the property comprises a bundle of rights and when a person executes a mortgage, he parts with some of the rights in favour of the mortgagee.16 At the same time, the ownership,17 a right to redeem,18 and a right to transfer the property,19 remain with the owner. The transfer of a right to obtain the tea export quota,20 a right to receive rents and profits for a certain term of years,21 a right of redemption,22 or a transfer of an interest of the mortgagee by the person23 may constitute mortgage. Covenant not to Sell the Property A covenant by the owner not to sell his property till the loan is repaid does not make this a transaction of mortgage. Transfer of an interest in a specific immovable property is a must. For instance, A, the owner of a house, borrows money from B and undertakes to repay it within two years. The contract also provides that till the money is repaid, A would be incompetent to sell his house as the same stands as a security for its repayment. This condition was inserted so as to facilitate the sale of the property, should the need arise. However, this transaction would not amount to a mortgage, as no right in the property has been transferred. It is a simple covenant not to sell the property. Therefore, a covenant against alienation,24 or a security bond by which property is merely charged25 does not amount to a mortgage. But a security bond executed in favour of the Registrar of the court for the benefit of the creditors is a mortgage.26 A covenant in the sale deed by the mortgagor in favour of the mortgagee providing for renewal of debt in case of defect in title, is not a mortgage.27 Movable Property The TP Act lays down rules governing the mortgage of only immovable property,28 though mortgage of movables is also recognised in India.29 A mortgage of shares,30 printing press,31 stock and trade,32 fishing boats,33 paddy boats,34 floating logs of timber,35 bullocks,36 are instances of mortgage of movables. A mortgage of property yet to come in existence such as future crops,37 indigo cakes to be manufactured,38 future dues for work to be done,39 a future decree40 but not of profits accruing from year to year,41 are also recognised as valid but cannot be enforced against a purchaser for value, without notice.42 Mortgage of Movables Page 5 of 73

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Mortgage of movables does not require delivery of possession43 and a mortgagee is not entitled to take possession in the event of non-payment of loan. His right is to enforce the mortgage by suing for a sale of the property44 or by appointment of a receiver to secure its possession so that his security may realise;45 but if the mortgagee is in possession of the mortgaged movables, he can sell them without the intervention of the court.46 In a contract of pawn/pledge, the pledgee has a special property while the general property remains with the pledgor/mortgagor. The right of property vests in the mortgagee/ pledgee only so far as necessary to secure his debts. Therefore, the deeds of pledge do not have the effect of transferring the ownership to the mortgagee/pledgee. The same can be attached for being appropriated towards the Provident Funds dues.47 Between two mortgages without possession, the one who approaches the court first gets priority48 but a judgment debtor does not have priority, as against a mortgagee without possession who obtains possession before actual attachment.49 A bona fide purchaser of hypothecated goods without notice of the encumbrance takes the goods free of it,50 whereas in case of immovable property, the encumbrance may be enforced even as against a bona fide purchaser for value.51 The remedy by way of redemption and foreclosure is available in mortgages of movables,52 but a mortgagee of movables who obtains a personal decree cannot sue on mortgage later.53 Specific Immovable Property The security must be in the shape of a specific immovable property, i.e., transfer of a specific right in a specific immovable property is the fundamental requirement in a mortgage. Specific immovable property means that the property should be sufficiently identified,54 and the description should not be general or ambiguous in character. For instance, A borrows money from B and undertakes to repay it within a period of two years. The contract also provides that if A failed to repay the loan within a period of two years, B can sell any of his properties. A owns three properties, X, Y and Z. This is not a transaction of mortgage, as the security for repayment of money has not been identified as a specific immovable property. The description of the property as aforesaid should be as specific as possible. If, from the description of the property, it cannot be easily identified, the transaction would not amount to a mortgage transaction. The proper way of describing it is by its name, if any, with the full postal address. If the property is a land, it should be described clearly and if need be, with reference even to the neighbouring properties. The descriptions like, ‘my house at place Y,’ when the person had two houses at that place, ‘all my wealth and property’,55 ‘one of my seven villages’, ‘a share in our Zamindari properties’,56 ‘my house and landed property’,57 ‘the whole of my property’,58 ‘our property with rights and incidents therein’,59 are general descriptions and not specific, but descriptions like, ‘my house Shanti Niwas, in Ashok Nagar’, or, ‘my five bighas of land at village Bhagpur’, ‘house situated at place X and owned by us’ where the persons stating so own only one house,60 are sufficient descriptions. PURPOSE OF MORTGAGE

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Securing a Debt Every mortgage presupposes the existence of a debt, actual or contingent, and it is for the purpose of securing the repayment of the debt that a mortgage of property is made.61 Right in property is accessory to the right to recover the debt.62 Hence, a transfer of property made for the purpose of discharging the debt,63 or a mere covenant not to alienate the property till the debt is discharged64 unless coupled with words expressly making property as a security for debt65 or a sale with a condition of re-transfer,66 is not a mortgage. After effecting a mortgage, the same property can again be mortgaged to raise an additional loan either to the same mortgagee or a different one. But raising additional debt and introducing a co-mortgagee does not alter the relationship of the first mortgagee with the mortgagor.67 Money Advanced or to be Advanced The primary purpose of the mortgage is to ensure the repayment of money advanced or to be advanced. The clause ‘money advanced or to be advanced’ shows that the loan amount might be paid to the mortgagor at the time of the execution of the mortgage deed or even subsequent thereto. The date of execution of the mortgage is effective even if the mortgage money is undertaken to be advanced in future. But if there is no consideration, the mortgage is void.68 For instance, A executed a mortgage deed of his house for a loan of Rs. 10 lakh, in favour of B on 10 January 1990. B promises to pay the money to A by 20 January 1990. The mortgage is effective from 10 January itself, irrespective of the fact that money is yet to be advanced. Even if B does not pay by the stipulated date, the mortgage does not become void. The remedy of the mortgagor in such cases would be to rescind the contract and claim damages. In the same example, if A sells the property on 15 January 1990, or even after 20 January 1990, when the money was not paid, the sale would be subject to this mortgage. But where a person without advancing loan under a usufructuary mortgage sues for possession, he would be denied a remedy as a mortgage cannot be without a consideration.69 Mortgage Money The primary purpose of the mortgage is to raise a loan and therefore, if there is no consideration the mortgage is a nullity,70 but it does not fail merely because the mortgagor fails to advance the money.71 Where part of the money is advanced it is a good security for the part advanced.72 It is sufficient if the mortgagee leaves the money in a bank deposit at mortgagor’s disposal.73 Mortgage money includes the interest accrued on it74 and the mortgagee is entitled to treat the interest due under the mortgage as a charge on the estate,75 unless there is a contract to the contrary.76 It also includes costs properly incurred by the mortgagee.77 Performance of an Engagement giving rise to a Pecuniary Liability The term performance refers to an act of mortgagor resulting from an engagement. The term engagement refers to a contract and due to this contract; there is a possibility that the Page 7 of 73

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mortgagor may incur a financial liability. For instance, A borrows seeds from B, and mortgages his field to secure its return. This undertaking to repay or return the seeds is an engagement giving rise to a pecuniary liability.78 Illustrations of Engagements giving rise to Pecuniary Liabilities Instances of engagements giving rise to a pecuniary liabilities. An agreement to— (i) withdraw an appeal;79 (ii) secure the payment of the costs of appeal;80 (iii)pay for value of improvements due to a person who is in possession of it;81 (iv)secure the mortgage against a loss of existing security;82 (v) secure payment for the subscribers of a chit fund;83 (vi)secure a covenant of indemnity; and84 (vii)

forbearance to sue.85

Transaction Amounting to a Mortgage Whether a transaction amounts to a mortgage or not would depend upon the substance of the document. The rule here is that in construing the nature of the transaction, and in ascertaining the jural relationship created by it86 the intention of the parties is to be seen.87 The substance is to be preferred to the form and the determining criterion is not merely the name by which the deed is called.88 The document may be described as a mortgage but may not be a mortgage if the effect of it is otherwise.89 Likewise, the deed may be called by a different name yet will be a mortgage if the essentials of mortgage are satisfied.90 If the words of the document are clear, effect is to be given to them and any extraneous inquiry into what the parties intended is ruled out.91 To ascertain the intention surrounding circumstances, including oral evidence can be taken into account.92 Title of the deed may be material where the deed itself is ambiguous,1 but it is not the conclusive test. For instance, A takes a consideration of Rs. 50,000 for his house, which is worth the same amount and there is no time fixed for the repayment of the money in the deed, which is described as a mortgage deed. It would give rise to a presumption that the deed was in fact a sale rather than a mortgage. On the other hand, if a sale deed is executed of a house by A in favour of B, for much less than the market value, i.e., Rs. 5 lakhs for a house of R s. 20 lakh and B does not take any steps to either go for mutation of names nor does he pay the tax, the presumption would be that the house is given by way of security and the transaction is a mortgage.2 In Ram Nath v. Baij Nath,3A borrowed money from B by executing a sale deed with respect to his property. The conditions incorporated in the deed were that if A repayed the money within a period of two years the property would be reconveyed to him. Possession of

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the property was given to B. The court held that this was not a sale but a mortgage. Agreement for Mortgage An agreement for mortgage gives rise to only a personal obligation, that is short of mortgage, or even a charge.4 It cannot be specifically enforced5 unless the lender has advanced the money.6 The remedy in cases of breach is a claim of damages7 calculated in terms of interest the money is likely to fetch, and the expenses incurred.8 Where the mortgagor has executed the mortgage but has not been paid the mortgage money, he cannot sue to get the balance paid unless in case of usufructary mortgage9 and can sue only for damages or redemption10 but if part of the mortgage money has been paid, the mortgage will be valid to the extent of the amount paid.11 Mortgage and Charge A mortgage and a charge are fundamentally different from each other. In a charge there is no transfer of an interest in the property, while transfer of an interest in a specific immovable property is the fundamental requirement of a mortgage. A charge is a little more than a personal obligation without a right in rem,12 and gives a right of payment out of a specific fund or property without its transfer,13 such as an agreement giving immovable property for the satisfaction of a debt,14 or payment of maintenance allowance.15 It is good against a subsequent transferee for value with notice, or with or without notice16 against a transferee without consideration, but a mortgage, which is good against all subsequent transferees.17 A mere agreement to create a mortgage is neither a mortgage nor a charge.18 Every mortgage is a charge but every charge is not a mortgage,19 but whether it is a charge or a mortgage, has to be determined in accordance with the intention of the parties.20 Right of Redemption and Right of Foreclosure of the Mortgage In the transaction of a mortgage, the mortgagor keeps his property as a security with the mortgagee, by transfer of an interest in it in his favour. So the interest or right of the mortgagee is to cause the property to be sold in the event of non-payment of the loan. The duty of the mortgagor is to repay the loan by the specified time, and his right is to get back or reclaim whatever he had transferred in favour of the mortgagee. This right of the mortgagor to get back, what all he had transferred in favour of the mortgagee after the payment of the loan is called a right of redemption. This is presently a statutory right, unlike the right in equity under English law. Redemption literally means release or liberation, and by repaying the loan the property of the mortgagor is released or liberated from the mortgage. On the other hand, it is the duty of the mortgagee to deliver all the papers and the property if it is in his possession, back to the mortgagor, when he receives the mortgage money. However, if the mortgagor fails to repay the loan amount within the specified time, the right arising in favour of the mortgagee is called a right of foreclosure. It must be understood that the old rule enabling the mortgagee to forfeit the property in the event of non-payment of loan is not a good law any more. He can cause the property to be sold, which means that he can neither Page 9 of 73

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appropriate the property himself, nor can sell it himself, and must approach the court for its sale. The right of the mortgagee to approach the court with a prayer for sale of the mortgage property in the event of non-payment of loan is in the shape of a suit for foreclosure of the mortgage. This right arises in favour of the mortgagee only after the expiry of the time period mentioned in the mortgage deed for its repayment. Where the right to repay the loan arises immediately after execution of mortgage, the right to foreclose it is also simultaneous and can be exercised within a period of twelve years from the date it arose, failing which it would be barred by the law of limitation.21 Interests of Mortgagor and Mortgagee, Assignable Interest created in a mortgage, both of the mortgagor, i.e., of redemption as well as of the mortgagee, even of a foreclosure, is transferable.22 As this right is again in immovable property, it can be assigned only through a written, attested23 and registered instrument.24 The property that is once mortgaged by the mortgagor can be mortgaged in favour of a third person again. This is called a sub-mortgage, and a sub mortgagee takes the property subject to the right of the principle mortgagee. For instance, A mortgages his house to B for a consideration of Rs. 10 lakh and undertakes to repay it within a period of five years. He can affect a sub-mortgage of the same property either in favour of the same mortgagee or a third person for raising another loan. For affecting a submortgage, again the same procedural formalities and the statutory requirements are to be adhered to. It must be in writing, attested and registered. Similarly, mortgage money is an essential feature of this sub-mortgage. The mortgagor is also competent to sell the mortgaged property. In such cases the purchaser would have a right of redemption of the mortgaged property on payment of the mortgage money, as he would stand in the shoes of the mortgagor and would have the same rights and disabilities that the mortgagor was subject to. The mortgagee is also competent to transfer the interest in the mortgaged property to a third person. Here again the assignee would step into the shoes of the mortgagee. For instance, A mortgages his house to B for a loan of five lakh rupees. According to the terms and agreement, the mortgagee is to pay four lakhs cash to the mortgagor and one lakh is to be paid by him to the creditors of A in satisfaction of the debts. B pays four lakhs to A and transfers his interst in the mortgaged property to C. Here, C would stand in the shoes of B and would be under a liability to pay one lakh rupees towards the satisfaction of A’s debts. Similarly, he has a right to get back the loan amount of Rs. five lakh from A, failing which he would be entitled to file a suit for foreclosure of the mortgage in a court of law. As the transfer by the mortgagee in his favour is subject to the rights of the mortgagor, if C does not pay the sum one lakh, the transfer is good only for Rs. four lakh, with interest.25 A sub-mortgagee has two rights in the alternative, one based on the personal covenant and the other on a derivative title to the mortgage right.26 As between the sub-mortgagor and the submortgagee the rights and liabilities are the same as in case of an ordinary mortgagor and mortgagee and if the original mortgagor sues to redeem, he must make the sub-mortgagee a party,27 otherwise, the suit will be dismissed.28 A sub-mortgagee has a right to bring the Page 10 of 73

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interest of the mortgagor to sale,29 but he cannot restrain the mortgagee from recovering the mortgage debt and at the same time hold him liable for the sub-mortgage debt.30 When a minor obtains a decree, setting aside a mortgage by his guardian, and does not make the submortgagee a party, the rights of the sub-mortgagor are not affected.31 KINDS OF MORTGAGES The Act gives an exhaustive definition of mortgage and recognises six variants of it, namely: (i) Simple mortgage; (ii) Mortgage by conditional sale; (iii)Usufructuary mortgage; (iv)English mortgage; (v) Mortgage by deposit of title deeds or equitable mortgage; and (vi)Anomalous mortgage. SIMPLE MORTGAGE Definition Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay32 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 sold33 and the sale proceeds 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. For instance, A borrows Rs. 10 lakhs from B and keeps his house as a security for its repayment. The contract empowers the mortgagee to proceed against the property in the event of non-payment of loan. It also gives a right to B to proceed against A personally should he so want, and obtain a money decree against him in a court of law. A retains the possession of the property. This is a simple mortgage, as not only the property is mortgaged, but also, the mortgagor is personally bound to repay the money. The mortgagee has an option here to proceed either against the mortgagor or against the mortgaged property. Personal Liability In a simple mortgage, the security for the debt is two fold—personal obligation and the property.34 Normally, in a mortgage the mortgagor is not personally liable and the mortgagee can proceed against the property only. But in a simple mortgage, the mortgagor binds himself personally also, and at the same time keeps his property as a security for the repayment of the loan. Thus, the mortgagee, in the event of non-payment of loan, can proceed against the mortgagor personally and obtain a money decree against him or can proceed against the mortgaged property and file a suit for foreclosure, and cause the property to be sold and realise his loan amount from the sale of the property. In a simple mortgage, there must be a personal covenant35 either express or implied,36 which arises out of the acceptance of the loan.37 There Page 11 of 73

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is no personal liability when he undertakes to repay out of a particular fund38 or a specific security like manganese ore.39 The option with the mortgagor of repaying the loan by selling the mortgaged property does not exclude the personal covenant, in case there is one.40 No Delivery of Possession In a simple mortgage, the mortgagor retains the possession of the property. There is no need to deliver possession41 as the amount can be recovered by a simple money decree.42 A clause in simple mortgage entitling the mortgagee to take possession in the event of default in payment will convert a simple mortgage into a mortgage with possession.43 Sale of Property In a contract of mortgage, the mortgagor may expressly44 or impliedly45 give to the mortgagee a power of sale with respect to the property. This power may be described in words pledging the property as security for the debt, which are sufficient to imply a sale.46 Even if the contract specifically says that the mortgagee has the power of sale, he cannot exercise this power himself without the intervention of the court.47 Adverse Possession A mortgage of the property can be validly effected even if the property is in occupation of a trespasser who ousts the mortgagor and holds the property adversely to him. Such a trespasser may, by prescription, become the owner of the limited estate of equity of redemption which the mortgagor has in the property, but such adverse possession cannot extinguish the right of the mortgagee.48 The right of the mortgagee to cause the property to be sold remains intact in a simple mortgage. Adverse possession operates against a mortgagee only when the mortgagee is entitled to possession and the time runs against him from the date he is entitled to enter the land. If the mortgagee’s right to possession has not accrued, his right cannot be barred by the possession of an adverse claimant.49 Where the mortgage is illegal for want of registration but the mortgagee continues in possession of the mortgaged property for a continuous period of more than 12 years, a valid mortgage comes in existence after the expiry of 12 years.50 MORTGAGE BY CONDITIONAL SALE Definition Where the mortgagor ostensibly51 sells the mortgaged property on a condition that on default of payment of the mortgage money on a certain date52 the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on the condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale.53 The term ostensible means seeming or apparent, but not actually the same thing. It imports that it is really not a sale. The components of a mortgage by conditional sale are: Page 12 of 73

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(i) The mortgagor ostensibly sells the mortgaged property, (ii) this ostensible sale is subject to a condition, that (iii)on default of payment by a certain date, the sale shall become absolute; (iv)if payment is made, the sale shall become void; and (v) if payment is made the buyer would return the property to the seller. There is no personal liability of the mortgagor to pay and the liability is only of the property.54 The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction and creating a security by way of mortgage.55 Mortgage and a Sale with a Condition of Re-purchase A mortgage is different from a sale with a condition of repurchase. Where the condition for repurchase is embodied in the document the presumption is that it is a mortgage,56 but when both the sale and the agreement of re-purchase are embodied in separate documents, it cannot be a mortgage.57 The onus of proving the mortgage is on the party alleging it.58 The test is the intention of the parties59 and that it should be ostensible and not a real sale.60 In absence of a debt and stipulation of interest61 or a charge over the property,62 transfer of property for a specific time period is not a mortgage but a sale with a condition for re-purchase. In cases of ambiguity, the court leans towards construction of mortgage.63 In a sale with a condition of repurchase, the right to re-purchase is personal and can be enforced strictly in accordance with the terms of the deed64 but in the mortgage with conditional sale, the mortgagor retains the right of redemption for the property despite having failed to pay the loan within the stipulated time.65 For instance, A mortgages his property by conditional sale to B by keeping his property worth Rs. 10 lakh as security, and raises a loan of Rs. five lakh. The deed provides that A should redeem the property within a period of five years, failing which it would be treated as sold to B. Here, after the expiry of five years, if A is able to arrange the money, he can redeem the property. The right continues till the mortgagee applies for foreclosure of the mortgage. But if the transaction was one of a sale with an option of re-purchase, after the expiry of five years the right of re-purchase in favour of A would be lost and he will not be able to get the property back from B. In Chennammal v. Munimalaiyan,66A executed a simple mortgage of three properties for securing the repayment of money that he borrowed from B. He was unable to repay the money by the stipulated time and he entered into a second contract with B. As per this contract, he sold one out of the three properties to B with a right to repay within a period of three years, for Rs. 3,000. The possession of the property was delivered to B. A little period after the completion of three years, A filed a suit for redemption of the mortgage. B claimed that since it was a sale with an option of re-purchase, and three years were over, A had lost the right to exercise the option of re-purchase.

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The Apex Court laid down the following distinguishing features between the mortgage with conditional sale and sale with an option of re-purchase: (i) In a mortgage with conditional sale, the relation of a debtor and a creditor subsists while in a sale with an option of re-purchase, there is no such relationship and the parties stand on an equal footing. (ii) A mortgage by conditional sale is effected by a single document, while a sale with an option of re-purchase is generally affected with the help of two independent documents. (iii)In a mortgage with conditional sale the debt subsists as it is a borrowing arrangement, while in a sale with an option of re-purchase, there is no debt but a consideration for sale. (iv)In a mortgage with conditional sale, the amount of consideration is far below the value of the property in the market but in a sale with an option of repurchase the amount of consideration is generally equal to or very near to the value of the property. (v) In a mortgage with conditional sale, since this is a mortgage transaction, the right of redemption subsists in favour of the mortgagor despite the expiry of the time stipulated in the contract for its payment. The mortgagor has the option to redeem the mortgage and take back the property on the payment of the mortgage money, after the specified time, but in a sale with an option of repurchase, the original seller must re-purchase the property within the stipulated time period. If he commits a default the option of repurchase is lost. The court held here that as the consideration was one-fourth of the value of the property, and the contract took place with the help of a single document, the presumption was that it was a mortgage by conditional sale, and the right vested with the mortgagor to redeem the property when he was able to repay the money. In Shanti Devi v. Nand Lal,67A required money to pay a previous mortgage. He borrowed Rs. 17,000 from B and kept his immovable property valued at R s. 60,000 as security for its repayment. The contract provided a time period of seven years for its repayment. It also specified that the liability to pay the house tax with respect to the property and also to carry necessary repairs would be of the mortgagor. The mortgagee under the contract was specifically given a right to foreclose the mortgage. The mortgagor was unable to repay the loan amount within this period of seven years. The court held that it was not a sale with an option of repurchase but a mortgage by conditional sale. The mortgagor was held as entitled to redeem his property. Condition to be Embodied in the Document It is mandatory that in a mortgage by conditional sale, the condition must be embodied in the document which effects or purports to effect the sale.68 It does not mean that if the stipulation of recoveyance is embodied in the document the transaction is necessarily a mortgage.69 The terms and conditions contained in the document are necessary to adjudicate upon the nature and the character of the document as to whether it is a mortgage by a conditional sale or a sale Page 14 of 73

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with a condition of re-transfer.70 If the document purports to be an absolute sale without any stipulation of treating it as a mortgage, a separate document of recoveyance cannot convert it into a mortgage.71 However, where the sum of money is much lower than the value of the property and is utilised for the discharge of the loans due to the plaintiff, and he gives a notice to the defendant to accept the sum and return the possession, the transaction is of mortgage by conditional sale.72 The court is not competent to investigate the possibility of existence of a loan if the document does not contain a covenant of mortgage with conditional sale.73 Where the intention of the parties is reflected in the document described as a mortgage by conditional sale with the mortgage sum specified and with a condition of re purchase in the same document74 or where a heavily indebted mortgagor mortgages his property with no intention to permanently dispose it off,75 or where the transferor takes a loan from the transferee for running a business and the transferee after taking the delivery of the property continued in possession with a stipulation in the deed that if the loan is not paid within a period of six months the deed is to be treated as a sale,76 the transaction is a mortgage by conditional sale and not a sale. USUFRUCTUARY MORTGAGE Definition The essential feature of usufructuary or possessory mortgage is delivery of possession of the mortgaged property to the mortgagee. According to s. 58 of the Act, where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee,77 and authorises him to retain such possession until payment of the mortgage money and to receive the 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 or partly in payment of the mortgage money, the transaction is called an usufructuary mortgage78 and the mortgagee a usufructuary mortgagee.79 For instance, A borrows money from B and keeps his house as a security for its repayment. The possession of the house is delivered to the mortgagee. Here, till the repayment of the loan, the mortgagee would be entitled to retain the possession of the house. The mortgagee is entitled to either live in the house himself or let it out to tenants. The tenants during the time of mortgage would pay the rent to the mortgagee and not to the mortgagor. Even if the mortgagor himself occupies the property, he would pay rent to the mortgagee. The lease that the mortgagee executes in favour of the tenants is valid and would be termed as an under lease or derivative lease. Such a lease would automatically come to an end on the determination of the mortgage, as that is the time when the mortgagee has to deliver the possession of the property back to the mortgagor. The principal characteristic of a usufructuary mortgage is that there is no personal liability and the mortgagee has no right to have the mortgaged property brought to sale.80 Ordinarily there is no time limit for repayment of the loan,81 but it may be impliedly fixed.82

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No Personal Liability In a usufructuary mortgage, the mortgagor is not personally liable to repay the loan amount and therefore the mortgagee cannot sue the mortgagor personally for the debt83 nor can he bring the property to sale.84 He is entitled to retain the possession of the property till the loan is repaid. The debt secured through a usufructuary mortgage cannot be attached like a simple debt.85 The character of the mortgage is not altered by a simple inclusion of a personal covenant.86 However, if it is a personal covenant to pay and a right of sale in default it is not a usufructuary mortgage, but an anomalous mortgage. It would be a combination of a simple and a usufructuary mortgage87 and if after the expiry of the time limit it becomes a mortgage by conditional sale, it is a mortgage usufructuary by conditional sale.88 Delivery of Possession of Property In a usufructuary mortgage, the mortgagor transfers the right to possess and enjoy the property in favour of the mortgagee for securing the repayment of the loan. Delivery of possession of the property is mandatory, and unless there is a clause in the deed providing for possession going to the mortgagee there cannot be a usufructuary mortgage.89 The terms on which the mortgagee will enjoy the land would depend upon the contract between the parties.90 But if the rights are regulated solely by the terms of the contract, the mortgage ceases to be a usufructuary mortgage and becomes an anamalous mortgage.91 Where a mortgage is executed and the land is delivered to the mortgagee92 or the mortgagee is entitled to possess the land for a fixed time period of 10 years in lieu of interest, it is a usufructuary mortgage.93 It is not necessary that the mortgagee should take physical possession as he may be in constructive possession.94 For example, if the mortgaged property is in possession of tenants, after the mortgage, a direction from the mortgagor that now the tenants should pay the rent to the mortgagee is sufficient. A mortgagee in possession acquires the right of the landlord,1 and may evict the mortgagor from the properties when the later defaults in payment of rent.2 There cannot be two distinct usufructuary mortgages on the same land as possession can be with one mortgagee only.3 Mortgagee to Appropriate Rents and Profits Pursuant to a usufructuary mortgage, the mortgagor authorises the mortgagee to retain the possession until payment of the mortgage money and to receive the rents and profits and appropriate the same in lieu of interest, or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage money.4 The amount of rents and profits may be equal to or less or even more than the interest amount.5 In such cases, the accounting has to be done as between the mortgagor and the mortgagee, which depends upon the terms of the mortgage deed.6 Remedies The usufructuary mortgagee is entitled to be in possession of the mortgaged property as long Page 16 of 73

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as it is not redeemed and where the mortgagee leases the property back to the mortgagor, he can sue the terms of the lease against the mortgagor.7 Ordinarily, a usufructuary mortgagee is not entitled to institute a suit for sale8 but if it is a combination of a simple and a usufructuary mortgage, the two rights are independent and the mortgagee may sue for sale although he may have given up possession and the right accrues immediately after due date is passed.9 Usufructuary mortgages and zuripeshgi leases A usufructuary mortgage resembles, but is different from a zuripeshgi lease. A zuripeshgi lease is a transaction where non-returnable lumpsum money is paid in advance10 in exchange for the possession of immovable property for a fixed time period.11 It bears a close resemblance to usufructuary mortgage but is distinct in the following ways: (i) In a mortgage transaction, there is a relationship of a creditor and a debtor but in a zuripeshgi lease, there may not be a relationship of creditor and debtor; (ii) In a zuripeshgi lease there is no right of redemption and the lessee is asked to quit at the end of the lease term,12 while the right of redemption is an inherent feature of a transaction of mortgage; (iii)A mortgage is primarily a contract for the security of repayment of the loan advanced or to be advanced but a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent but a security to the tenant for the money advanced.13 (iv)In a zuripeshgi lease, the transferee always has the actual possession but in a usufructuary mortgage, the mortgagee may have constructive possession and the mortgagor, in the capacity of the lessee of the mortgagee, may have actual possession.14 In Nidha Sah v. Murli Dhar,15A executed a deed, called a mortgage deed of certain specific villages in favour of B for a period of 14 years. The deed provided that B was to retain the possession of the property for a period of 14 years and after that the financial obligation of A would come to an end and the property would come back to A without any settlement of accounts. B, at the end of 14 years, refused to part with the possession of the property on the ground that the quantum of property whose possession was delivered to him was insufficient, and therefore he was unable to get his money back in full. He contended that his right of retention of property till the complete amount is adjusted should be upheld. This was possible only if the transaction amounted to a usufructuary mortgage. The court dismissed his contention and held that this was a transaction of zuripeshgi lease and was not a mortgage. Here, there was no liability on A to repay the advanced amount and the property was not given to B as a security for its repayment. Other instances of zuripeshgi lease would be where the lease is not a security for the repayment of the money advanced,16 or the transferee is entitled to remain in possession of the property even after the discharge of the entire amount.17 On the other hand, a transaction having a debt,18 security of land for its repayment,19 or a personal liability to repay the advance amount,20 with a clause fixing interest21 and with an express or implied right of redemption to the transferor22 is a usufructuary mortgage and not a zuripeshgi

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lease. Though the nature of transaction has to be judged taking the transaction as a whole,23 the quantum of money advanced may also be taken as a determining test.24 There can be a combined lease and a mortgage25 effected through separate transactions or a combined one26 with remedies pursued separately, depending on the construction of the terms of the document.27 ENGLISH MORTGAGE Definition Where the mortgagor binds himself to repay the mortgage money on a certain date,28 and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor29 upon payment of the mortgaged money as agreed,30 the transaction is called an English mortgage.31 Before the payment date the mortgagor has a legal interest in the land and after the date he has the legal right of redemption.32 This right of redemption remaining in the mortgagor is an estate in land.33 Essentials of an English Mortgage (i) A loan is taken on the strength of the property by the mortgagor from the mortgagee; (ii) there is an absolute transfer of this property in favour of the mortgagee; (iii)the transfer is subject to a provision or condition that the mortgagee would return the property to the mortgagor upon repayment of the loan by a certain date; and (iv)The payment is to be made on a certain date fixed in advance. Under an English mortgage the mortgagee acquires a right to take possession as soon as the mortgage is executed.34 For all practical purposes, he is the owner and the mortgagor has a right in equity to redeem his property if he is able to repay the amount on a certain date. If he fails to repay the amount he would lose the right to redeem. In an English mortgage, the mortgagee is empowered to take a security and convert it in a sale. However, in India, even if the mortgage is an English mortgage, the mortgagee cannot automatically convert the security into a sale. Where the mortgagor does not bind himself to repay the mortgage money on a certain date and the deed does not even remotely suggest that the transaction was in the nature of a mortgage, the transaction would not be of an English mortgage.35 MORTGAGE BY DEPOSIT OF TITLE DEEDS Definition The most prevalent form of mortgage presently is mortgage by deposit of title deeds. It is purely an oral transaction. The loan amount is raised against the title deeds of the immovable property which are delivered to the mortgagee. It need not be in writing. The Act defines it as, where a person delivers36 to a creditor or his agent documents of title to immovable property Page 18 of 73

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with intent37 to create a security thereon,38 the transaction is called a mortgage by deposit of title deeds.39 It is one of the modes of creating a mortgage40 and though there is no formal conveyance, there is a transfer of an interest in the property and for the purposes of priority it stands on the same footing as a simple mortgage.41 Deposit of title deeds with a bank to secure a general balance on the account42 or to secure an overdraft,43 or to secure guarantees and indemnities,44 are instances of mortgage by deposit of title deeds. Essentials of Mortgage by Deposit of Title Deeds (i) The transferor borrows a sum of money from the transferee; (ii) He delivers the title deeds of a specific immovable property; (iii)He does it with an intention to keep the property as a security for the repayment of the loan. Territorial Restrictions Mortgage by deposit of title deeds can be effected in Calcutta, Madras, Bombay45 and Simla.46 Where the transaction takes place outside the notified area the provisions will not apply.47 Territorial restrictions do not apply to the registration of the transaction, which can be even outside the notified towns.48 Deposit of Title Deeds The essential feature of a mortgage by deposit of title deeds is the delivery of title deeds to the mortgagee.49 An actual or even constructive delivery50 of title deeds51bona fide relating to the property52 and showing the title of the depositor53 is sufficient and it is not necessary that there must be a physical delivery.54 The requirement is delivery of the title deeds and not that all the deeds relating to the property must be deposited.55 Where the bank fails to prove the deposit of title deeds, the transaction would not amount to an equitable mortgage,56 but where certified copies of the original title deeds are deposited it would create an equitable mortgage.57 A patta of land,58 a hundi, along with an agreement of previous purchaser and a tax receipt,59 as a document of title60 are sufficient and their delivery with an intention to secure a loan against this property would effect a valid mortgage of property. However, a mere tax receipt and a plan,61 or a copy of the title deeds62 are not documents of title. If the original deeds are lost,63 then, in such cases, deposit of registration copy of the title deeds along with tax receipts and a certificate issued by the panchayat are sufficient.64 Where there are structures on the land, mortgage extends to both land and structures on it, even though the deeds deposited relate to land only.65 However, where the deed provided that the security is created for due payment of the amount of the loan together with interest and any other money that may become due and payable from time to time by the borrower subject to a maximum of 24 lakhs, the liability of the mortgagor is not restricted to the amount of the term loan, but also covers the interest thereon, and all other costs and charges.66 Intention to Create a Security

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The title deed must be deposited with an intention that the property should stand as a security for the repayment of the loan by the mortgagor. Mere possession of title deeds67 coupled with the debt is not enough to raise the presumption that the deeds are a security for the debt,68 but it is a significant fact and the mortgagee may be asked to explain how he came to be in possession of them.69 Where the title deeds are deposited in contemplation of partnership transaction70 or for creation of a simple mortgage, the transaction is not automatically converted into a mortgage by deposit of title deeds.71 But an agreement to advance an additional amount on the same security of the title deeds is treated as constructive delivery of deeds.72 Mode of Execution A mortgage by deposit of title deeds is an oral transaction, and does not require writing or registration,73 but if written it needs registration74 and no oral evidence to contradict it is admissible.75 A memorandum accompanying mortgage containing a list of documents deposited,76 or a letter endorsing77 or evidencing the fact of deposit of title deeds,78 or in absence of an evidence that it was executed prior to or simultaneously79 does not require registration. But if the deposit is made through a letter explaining the reason for the deposit, it must be registered.80 The rule is either—effect, or it orally or in accordance with the provisions of law, i.e., the deed should be properly executed, or should be validly attested and registered. The transfer of a mortgage by deposit of title deeds by the mortgagee is a transfer of an interest in immovable property and requires writing, attestation and registration.81 ANOMALOUS MORTGAGE Definition A mortgage, which is not a simple mortgage, mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title deeds, is called an anomalous mortgage. An anamalous mortgage can be a combination of any of these mortgages.82 For instance, where possession of property is delivered to the mortgagee with an additional liability on the mortgagor to pay the interest on the loan amount, it would be an anomalous mortgage. Customary mortgages prevalent in India such as kanom otti and apemartham of Madras or san mortgages of Gujarat are anomalous mortgages.83Kanom, which is a combination of lease and mortgage and otti, in which the holder has a right of pre-emption cannot be redeemed before 12 years unless there is an agreement to the contrary, are also illustrations of anomalous mortgages. An anomalous mortgage requires writing and attestation.84 Instances of Anomalous Mortgages Following are the illustrations of an anamolous mortgage: (i) a possessory mortgage with a personal covenant to pay,85 Page 20 of 73

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(ii) a possessory mortgage with with distinct interest,86 (iii)a possessory mortgage with the mortgagee having a right to take possession,87 (iv)a possessory mortgage with with a right to cause the mortgaged property to sale in the event of default in payment,88 (v) a possessory mortgage with with a fixed time period,89 (vi)a possessory mortgage with with a right of foreclosure,90 (vii)

a possessory mortgage with a conditional sale,91

(viii) a mixture of usufructary and simple mortgage,1 (ix)with part possession with no personal covenant to pay,2 (x) with personal covenant to pay interest but with no covenant to pay principal,3 (xi)a combination of simple; usufructuary and mortgage by conditional sale.4 MODE OF EXECUTION OF A MORTGAGE

Section 59. Mortgage when to be by assurance.— Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.

MODE OF EXECUTION OF A MORTGAGE Since mortgage is a transfer of an interest in a specific immovable property, where the amount of loan is more than Rs. 100,5 law requires it to be in writing, properly attested and registered. These three requirements are applicable in all cases of mortgage6 other than a mortgage by deposit of title deeds. Where the principle amount is more than Rs. 100, the only method to create a valid mortgage is by a registered7 instrument8 signed by the mortgagor and attested at least by two witnesses.9 While estimating the amount, it is only the principal money, i.e. the initial loan amount, which is to be taken into account and not the interest10 on it. Mere delivery of possession of property,11 or even an admission of a mortgage that he has mortgaged his property is not sufficient to create a mortgage12 and the formalities laid down here must be observed. However, where the principal money secured is less than Rs. 100, than except in Page 21 of 73

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case of a simple mortgage, writing, attestation and registration are optional. They can be dispensed away with and a valid mortgage can be affected by a simple delivery of possession of the property. Signed by the Transferor The first requirement for the valid execution of a mortgage is that it must be through a mortgage deed which is signed by the mortgagor. A mortgage should be signed by either the mortgagor himself or by his agent.13 An illiterate mortgagor need not sign,14 but can put his mark.15 The signature can be by hand or even typed or a facsimile.16 Attestation The second requirement is that the deed should be properly attested. A deed cannot operate as a mortgage or a charge if attestation is invalid,17 but is admissible in evidence to prove a personal covenant to pay18 and in absence of such a covenant for seeking compensation or other remedies.19 A validly attested deed has to be proved and in absence of such proof cannot be used in evidence even to show a personal covenant to pay.20 Where the execution of deed is admitted, valid attestation need only be proved,21 but if execution is denied then at least one of the witnesses is to be called to prove its execution.22 Registration The third and the final requirement is that the deed must be registered. This mortgage becomes complete and enforceable on registration,23 but once registered it takes effect from the date of execution.24 Till the document is registered, there would be no transfer of any interest in the property. As an unregistered mortgage deed does not create a charge,25 a mortgagor cannot sue for redemption under a mortgage which is invalid for want of registration.26 Similarly, a mortgagee cannot resist redemption by the mortgagor27 if the deed is unregistered, but an unregistered mortgage can be used to prove a collateral purpose such as a personal claim for a debt28 unless the loan and mortgage are inseparable.29 It can also be used for determination of nature of possession,30 to sue on a title for possession,31 or to defeat a claim for adverse possession.32 Where the mortgage is executed with the help of two deeds, one a sale deed and the other a recoveyance, both require registration.33 Where the loan amount is more than Rs. 100, a usufructuary mortgage affected with the help of an unregistered mortgage deed is not valid. It is not admissible in evidence. Here, even if actual possession is given to the mortgagee, the legal possession continues with the mortgagor. Such a mortgagee in possession cannot hold the possession of the property adversely to the mortgagor.34 However, the mortgagor cannot regain possession on the basis of an oral mortgage, but can do so on the strength of his title.35 Improper Registration A mortgage is invalid if the registration is improper by reasons of fraud36 or incorrect description of property,37 lack of territorial jurisdiction of registering authority,38 presentation Page 22 of 73

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by an incompetent person39 or with fraudulent inclusion of negligible property merely to avail the jurisdiction of a particular registering authority.40 REFERENCES TO MORTGAGES TO INCLUDE PERSONS DERIVING TITLE FROM THEM

Section 59A. References to mortgagors and mortgagees to include persons deriving title from them.— Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively. Thus, the term mortgagor and mortgagee would include their heirs,41 executors and administrators,42 and assignee mortgagee43 respectively, but not a transferee of mortgagor44 or a charge holder.45

RIGHTS AND LIABILITIES OF THE MORTGAGOR—RIGHT OF MORTGAGOR TO REDEEM

Section 60. Right of mortgagor to redeem.— At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a court.

The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Page 23 of 73

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Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

Redemption of portion of mortgaged property.— Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. The rights of the mortgagor are as follows: (i) Right of redemption; (ii) Right to transfer to a third party instead of re-transfer to himself; (iii)Right to inspection and production of documents; (iv)Right to accession; (v) Right to confer a lease, and; (vi)Right to reasonable waste. RIGHT OF REDEMPTION A mortgage transaction is primarily a contract to ensure the repayment of the loan amount. The mortgagor remains the owner of the property and is capable to obtain the property from the mortgagee, when he repays the loan. This statutory right of mortgagor to take back the property on repayment of the loan amount in full plus the interest on it, if any is called a right to redeem and a suit to enforce it is called a suit for redemption. The right to redeem arises only after the principal money has become due.46 It continues till the time the mortgagee sues for enforcement of the mortgage.47 It cannot be taken away or defeated by an agreement to the contrary made either at the time of the execution of the mortgage as part of the contract,48 even if the mortgagor had expressly agreed to abide by it or by efflux of time.49 The right to redeem can be taken away only by means and manner statutorily enacted for this purpose and strictly complied with.50 For instance, A executes a mortgage of his property in favour of B, and secures a loan of Rs. 10 lakhs. In the contract of mortgage it was provided that A would pay the amount after a period of five years, but within a period of six years, failing which, his right to redeem would come to an end and the property would pass to the mortgagee. Here, the principal money becomes due after five years. After it becomes due, the mortgagor has a right to pay Rs. 10 lakh plus interest on it if any, and take back all the documents relating to the property from the Page 24 of 73

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mortgagee. If he fails to repay the money after a period of six years, the right of redemption does not come to an end. If after seven years, he is able to arrange the money and gives it to the mortgagee, the mortgagee cannot refuse to accept it. If he refuses, the mortgagor can deposit the money in court after filing a suit for redemption. The time period, therefore, is immaterial for the mortgagor but only till the mortgagee files a suit for foreclosure. Thus, in theory, the right of redemption of the mortgagor comes to an end when the mortgagee files a suit for foreclosure. However, practically, the right continues even where the matter goes to the court and the mortgagor is entitled to deposit the entire amount in the court and redeem his property. Thus, an agreement between the mortgagor and the mortgagee by which the mortgagor agrees to convey certain lands to mortgagee in satisfaction of certain debts,51 can be ignored by the mortgagor, and he can sue for redemption even after the expiry of the stipulated time period. If as per the agreement, the mortgagor has a right to redeem only by a suit,52 it does not extinguish the right of redemption. Till the sale is confirmed, the right of redemption continues53 and where the auction sale is invalid, even then, a mortgagor can redeem.54 The right of redemption is therefore, absolute and cannot be taken away by any provision in the contract to the contrary.55 In Achaldas Durgaji Oswal v. Gangabisan Heda,56 the Apex Court considered whether the right of redemption can be exercised in an appeal from the judgment of the High Court. The facts of the case were that A had mortgaged his property for a period of five years in favour of B. The mortgage executed was a usufructuary mortgage wherein the possession of the property was delivered to the mortgagee. A failed to repay the loan within the stipulated period. The mortgagee filed a suit for foreclosure and the mortgagor filed a suit for redemption of the property. The court directed the mortgagor to deposit the money in the court within a period of three months, which he failed to do. He deposited the amount after three years, and then applied for a final decree from the court. The lower court rejected his prayer as being barred by limitation but the High Court reversed this judgment. The matter went to the Supreme Court and the court upheld the decision of the High Court and held that the mortgagor has a right to redeem his property and despite the fact that he had committed a default in its payment, he would not be debarred from redeeming his property. The mortgagor had deposited the amount within the period of limitation for redemption of usufructary mortgage under the Limitation Act, i.e., within 30 years. When the mortgage comes to an end57 with the exercise of the right of redemption by payment or deposit of money, the contractual relationship of mortgagor and the mortgagee ceases.58 Suit for Redemption A suit for redemption has to be filed by the mortgagor59 or any other authorised person.60 The plaintiff must prove61 his title62 and show a subsisting mortgage,63 as the mortgagee is entitled to hold against everyone who does not have a paramount title.64 A mortgagee cannot resist redemption by denying mortgagor’s title to the property,65 or by showing an agreement of sale in his favour.66 A benamidar, till 1988,67 was entitled to sue for redemption.68

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Persons Entitled to Receive Payment of Money The mortgagor is liable to repay the loan amount either to the mortgagee or to his authorised agent69 and not to any one else such as an unauthorised agent70 or an executor, unless he obtains probate.71 Payment is to be made in the current coin or notes or currency unless the mortgagee accepts any other form of payment.72 If the loan was taken in any other currency, the mortgagee is to be paid an equivalent to the loan amount.73 A mortgagee getting less than the due amount is entitled to get the deficit;74 and receiving more than what is due, is to return the excess to the mortgagor.75 In case of more than one mortgagee, the payment is to be made to all.76 Where the money is to be paid to the heirs of a mortgagee, the same rule is to be followed unless one of them is the karta 77 or his agent.78 Payment If interest is charged on the loan amount, it will continue to be calculated till the loan amount is paid. A valid,79 and not an invalid,80 unconditional81 tender of proper amount82 would stop the running of interest. However, in case of usufructuary mortgage, the debt is to be satisfied out of the usufruct and therefore, no tender is necessary.83 A mortgagor can file a suit for redemption even before the loan is paid, as it is not necessary to tender the amount before filing a suit for redemption84 nor is such a suit necessary to prove a previous tender.85 A mere verbal expression86 or through a letter87 indicating willingness to pay is not sufficient and the money must be available for immediate delivery.88 But where the mortgagor goes with money to pay and the mortgagee demands extra interest, it is a good tender.89 A deposit in court does not end the relationship of mortgagor and the mortgagee.90 Applicability of the TP Act to Mortgages executed prior to the commencement of the Act Prior to the promulgation of the TP Act, the law of mortgages was not codified. No written rules existed securing redemption of property by the mortgagor and the parties were governed by the customary laws. Nevertheless though this Act is not applicable to the manner in which the mortgage was executed prior to 1882, post-1882, a mortgagor would always be entitled to redeem a mortgage by making payment of the mortgage money. The right of the mortgagor to redeem the property therefore, cannot be taken away even if it was executed before the commencement of the TP Act and therefore, a suit of the mortgagor filed in 1968 under a mortgage executed in 1880, would be decreed in his favour.91 CLOG Clog on Right of Redemption Clog literally means to obstruct or to block, and a clog on the right of redemption of the mortgagor means an attempt of the mortgagee to obstruct this right of redemption. The mortgagee may put a condition in the mortgage deed that may prevent the mortgagor from redeeming his property even when he is prepared to repay the loan. This putting of obstructions, or preventing him from getting back his property is called a clog on the statutory Page 26 of 73

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right of the mortgagor to get back his property and would be void. Doctrine of clog on equity of redemption is a rule of equity, justice and good conscience92 and is applicable in areas where the Act93 is not in force.94 It must be remembered that adversity of a person cannot and should not be exploited by the persons who advance loans.95 In a mortgage transaction, the two parties, i.e., the mortgagor and the mortgagee are not on an equal footing. Practically, it is not a contract between two parties who are standing on the same platform, as one is person in stringent circumstances, in need of money while the other has the money and thus dominates in this transaction. It is apparent that a person in need cannot lay down conditions to his own advantage. Since the mortgagee is in a secure position, it is he who has the money, it is presumed that he would lend it in accordance with the terms that suit him and which may be adverse to the interests of the mortgagor. Even if the mortgagee inserts conditions in the contract of mortgage, that prevent the mortgagor from redeeming his property, the mortgagor would have no option but to agree to these conditions. This he does not because he is entering into the contract of mortgage with his free will, but because he may not have a choice to do otherwise. In such a situation, law protects the interests of the mortgagor and prevents the mortgagee from taking advantage of the conditions that are inherently to the disadvantage of the mortgagor. Thus any condition that is put in the mortgage deed to which the mortgagor may have agreed to initially, if it prevents the mortgagor from redeeming his property, such condition can be ignored lawfully by the mortgagor without affecting the validity of the mortgage. These conditions are called clog on a mortgagor’s right of redemption and would be void. These conditions will not be enforced by court of law. In Stanley v. Wilde,96 Lindley MR, made the following observations: Once a Mortgage Always a Mortgage The principle is this; a mortgage is a conveyance of land for the repayment of a debt or the discharge of some other obligations for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment of discharge of such debt or obligation, any provision to the contrary snot withstanding. This in my opinion is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, that once a mortgage always a mortgage.

A mortgage is always redeemable. And a mortgagor’s right to redeem shall neither be taken away nor be limited by any contract between the parties. The phrase also means that a mortgage would remain a mortgage and it cannot by the unilateral act of mortgagee be converted into a sale. Thus, there are four basic principles to which the law of mortgage is subject to in India which are as follows: (i) A mortgage in essence is a borrowing transaction, and has to be viewed as such unless contrary is proved; (ii) A mortgagor is a person who is in need of money, while the mortgagee is a party who has the money and it is presumed that the conditions that prevent the mortgagor to

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redeem his property or penalise him are inserted in the contract at the behest of the mortgagee; (iii)A condition that the property would be forfeited in the event of default in payment of money is a penalty and; (iv)Any condition that penalises the mortgagor in the event of non-payment of loan would be termed as a clog on his right of redemption and would be void. Such conditions can validly be ignored by the mortgagor and would not be enforced by any court. Whether a particular condition operates as a clog depends on facts and circumstances of the case.1 A condition in the agreement that in the event of default in payment; the mortgage will be an automatic sale2 and the expenses will be borne by the mortgagor,3 a sale at the prices fixed by an umpire,4 or the mortgagee will get a right to enter the possession as a tenant,5 or a stipulation giving him a right of pre-emption at a fixed price which is unfair,6 denying him a right of redemption with respect to the mortgage till he pays the loan of a subsequent mortgage,7 providing that part of the land cannot be redeemed at all;8 or restraining the mortgagor from alienating the mortgaged property,9 is a clog. A stipulation of enhanced rate of interest in the event of default is a penalty and amounts to a clog,10 but not where there is no undue influence or unfair dealing.11 No hard and fast rule can be laid down as to when an agreement amounts to a clog.12 The condition in a mortgage that the money should be procured otherwise than by sale or mortgage of property13 or that the mortgagor is not entitled to redeem with borrowed money14 or that he cannot sell during subsistence of mortgage,15 is a clog. Where the agreement provides that the mortgagor can redeem only at the end of 19 years but he will have a limited interest and the major interest in the property will continue to belong to the mortgagee, and in the event of his inability to redeem after 19 years the property will be deemed to be sold to him, is void as a clog on his right of redemption.16 A condition that there should be no redemption except in a specific month of the year such as the month of Jeth 17 or Vaisakh 18 is not a clog. In SB Narain Dass v. Surta,19A executed a mortgage of his land in favour of B, with delivery of possession. B had stipulated a very high rate of interest. The rate of interest was, in fact, higher than what is permissible under the Punjab Relief of Indebtedness Act, 1934. B enjoyed the benefits of the land and appropriated its income for a period of 60 years. Thereafter, without rendering of accounts and without even filing a suit for foreclosure of the mortgage, B filed a suit in a court of law for a declaration of title to the property. The court dismissed his suit and noted that B had remained in possession of the property for a period of over 60 years and had appropriated the fruits of the land. Since he had not followed the procedure for foreclosure of the mortgage and had not even settled any accounts, the terms of the mortgage operate as a clog on A’s right of redemption. The mortgage, according to the court, was deemed to have been redeemed during this period, with the mortgage debt fully discharged. Collateral Benefits to the Mortgagee Where the mortgagee inserts conditions in the mortgage deed that, instead of depriving the Page 28 of 73

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mortgagor of his right of redemption, give a collateral benefit to the mortgagee in lieu of this mortgage, that adversely affects the rights of the mortgagor, these conditions would also be void and unenforceable by the court. For instance, a condition of pre-emption in favour of a mortgagee20 or that the mortgagor should sell the property in favour of mortgagee at the prices already fixed,21 or that the mortgagee will remain in possession as a permanent tenant even after redemption22 or that the mortgagee will become partners of a firm that was intended to be a mere security,23 are clog on equity of redemption but a condition that the payment is to be made in a foreign currency,24 or that the mortgagor should pay one and half times the principal at the time of redemption,25 a grant of lease during subsistence of mortgage,26 or that a possessory mortgagee will be paid a fixed annual sum for repairs and contingent charges27 or that the mortgagee will be paid remuneration as a manager of the mill mortgaged,28 are not considered a clog on equity of redemption. In Maina Devi v. Thakur Mansingh,29A, who was in financial difficulty, mortgaged his house in favour of B, who was his tenant and had the possession of the property. The contract provided that A was not empowered to redeem the property for the initial 15 months and his right of redemption would arise only after that time period. However, he had to redeem the property after 15 months from the date of execution of this mortgage but before the expiry of 30 months, failing which the property would be deemed to be sold to B. B would, in that case, become the owner, and A would have no objection to that. However, if A repaid the money during the stipulated time period, B would have a right to retain possession of the property and continue as his tenant. A paid the money but B refused to vacate and hand over the possession of the property to A on the ground that they had taken the possession as the tenants under the mortgage deed. The court held: There can not be worse types of clogs than the present one because here under the garb of the mortgage, the mortgagee had tried to become the owner of the property first and then had tried to put a covenant by which they would be entitled to continue in possession for ever, either by changing the rent deed or claiming ownership. It would be inequitable and unjust if in the garb of advancing monies as mortgagee to the mortgagor a mortgagee is allowed to abuse and misuse his possession and become perpetual tenant which in the present circumstances would tantamount to giving him almost right to enjoy the property unless evicted by due course of law in separate proceedings under the rent control law.

The court held that these conditions would amount to a clog on the mortgagor’s right of redemption and would be void. The rule of impermissibility of the mortgagee securing a collateral benefit under a mortgage has to be distinguished from the situation where, upon redemption there is a restoration of the title. For example, A mortgages his property to his tenant by creating a usufructuary mortgage. The condition in the mortgage deed also stipulates that upon the redemption of the mortgage, the mortgagee would continue to be a tenant and would keep the possession of the property in accordance with the lease agreement effected prior to this mortgage. In such a case upon the redemption of mortgage, the mortgagee would not be evicted straightway, but would revert to his position as tenant and continue the possession of the property though in a different capacity.30 Here, tenancy is not in the nature of a collateral benefit but is a restoration of his original status. Even during the mortgage the intention of the parties was to keep the tenancy alive.31 But if the tenant was in possession of the property under an unregistered lease, and the Page 29 of 73

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registered mortgage executed in his favour was redeemed by the mortgagor after repayment of the loan and interest, the tenant cannot insist on retention of possession under this unregistered lease so as to change his status from mortgagee to that of a tenant.32 Right to Get Back the Possession of the Property It is the inviolable right of the mortgagor to get back the subject of mortgage33 on redemption. Thus, a usufructuary mortgagee in possession of the mortgaged property has to deliver possession thereof which includes not only the shop34 or the land originally mortgaged, but all the lands that have come into his possession as a mortgagee35 to the mortgagor on payment of the mortgage money.36 He cannot, on his own, convert himself into an owner of the mortgaged property.37 If, as a ususfructuary mortgagee, he had inducted tenants in the property, such a lease granted by the mortgagee comes to an end when the land is redeemed.38 He must account for the land if it is lost through his negligence39 and is not allowed to claim ignorance of it.40 Right to Get Back the Documents relating to the Mortgaged Property The mortgagor has a right to get back the documents relating to the property mortgaged, and is entitled to an indemnity41 and may also get compensation42 if the mortgagee loses them. Where the mortgaged property comprised of other property besides the one mortgaged by the mortgagor he cannot get back the deed but the mortgagee must covenant to produce it when required.43 Where the mortgagor pays the loan amount and the same is accepted by the mortgagee Bank, the Bank has the statutory obligation to return such documents relating to the mortgaged property and hypothecated goods and would not be justified in its action of withholding securities.44 At any Time after the Principal Money becomes Due According to s. 60, the right of the mortgagor to redeem the property arises after the principal money becomes due. At the same time, it is also a fundamental rule that the right of the redemption of the mortgagor cannot be taken away by inserting any clause in the mortgage deed. For instance, A mortgages his property in favour of B for a loan amount and undertakes to repay it within 10 years failing which, the mortgagee can take appropriate action. Secondly, the clause may be worded in such a manner more so in case of usufructuary mortgages, which ensure that the mortgagee may retain the possession of the property for a specified number of years and it is only after this period is over that the right of redemption in favour of the mortgagor would arise. For example, in the same situation, the deed provides that the mortgagor cannot redeem the mortgage for a period of 10 years so as to ensure undisturbed possession to the usufructuary mortgagee and it is only after this period of 10 years is over, that the right of redemption in his favour would arise. In such cases as the principal money becomes due only after 10 years, the right of the mortgagor to redeem the mortgage would also arise after 10 years. The Privy Council has said:45 Ordinarily and in absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period.

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Since the legislature has not specified any time for repayment of mortgage money,46 the parties may do so47 and the right will arise only after the expiration of that period.48 If no time is fixed the redemption can be exercised at any time.49 The mortgagor may bind himself with a clear stipulation that for a certain time the mortgage will be irredeemable,50 or that the debt must be discharged, within a specified period51 or during certain months52 or years.53 But, he is not entitled to redeem on the ground that the mortgagee has done something he was not authorised to do54 unless the mortgagee commits a default.55 Such conditions that stipulate the number of years for which the mortgage must subsist are therefore valid. However, for instance, in such a case, a situation arises where A mortgages his property in favour of B by usufructuary mortgage and delivers possession to him. A is 50 years old. B puts a condition that A’s right of redemption would arise only after 50 years so as to ensure undisturbed possession to the mortgagee. The implication of this condition is that the right of redemption would arise in A’s favour only when he attains the age of 100 years and in all probability he may not be alive. If instead of putting a condition of redemption like this only after 50 years, B had stated, that; ‘during your lifetime you would not be able to redeem the property’, this condition would have amounted to a clog on A’s equity of redemption and would have been void. However, the effect of the first clause would also be the same. Therefore, long-term mortgages have to be seen and analysed differently. Long-term Mortgages and Clog on Equity of Redemption A long time period is kept usually in case of usufructuary mortgages. It can be 40 years or 99 years or even beyond 100 years, and one thing is clear, that if a mortgage can be executed by the mortgagor only when he is a major, and if the term of the mortgage is over 100 years, it is in other words a clear pointer, that this mortgagor would not be able to redeem the property during his lifetime, and thus, such a condition, on the face of it, appears to be a clog. However, the Supreme Court has held that a mere long time period in absence of evidence of fraud or undue advantage by the mortgagee would not of itself amount to clog on equity of redemption,56 but if the length is unreasonable57 or oppressive,58 or makes redemption impossible,59 it will be a clog. In Seth Ganga Dhar v. Shankar Lal,60 a mortgage was executed by A and included a condition to the following effect, I or my heirs will not be entitled to redeem the property for a period of 85 years. After the expiry of 85 years we shall redeem it within a period of six months. In case we do not redeem within a period of six months then after the expiry of the stipulated time period, I, my heirs, and legal representatives shall have no claim over the mortgaged property and the mortgagee shall have no claim to get the mortgage money and the (repair) expenses that may be due at the time of default. In such a case this very deed will be deemed to be a sale deed. There would be no need for executing a fresh sale deed.

The mortgagee took the possession of the property, and later assigned his rights under the mortgage to C. After 43 years of the execution of the mortgage, A’s sons filed a suit for redemption of the mortgage claiming that this long term and prevention of redemption till 85 Page 31 of 73

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years is a clog on their equity of redemption and therefore void. The court looked into several cases and held that long-term mortgages by themselves would not amount to a clog on equity of redemption. With respect to the test to find out whether this condition would or would not amount to a clog, the court observed: The reason then justifying the courts power to relieve a mortgagor from the effect of his bargain is its want of conscience. Putting it in more familiar language the courts jurisdiction to relieve a mortgagor from his bargain depends on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed money on the mortgage. Was the mortgagor oppressed? Was he imposed upon? If he was, then he may be entitled to a relief. But this is a question of fact and may vary from case to case.

The court held that since this mortgage had enabled the mortgagor to redeem an earlier mortgage, it was advantageous to the mortgagor as well, and held that the time period of 85 years did not amount to a clog and was therefore valid. Accordingly, this suit was premature, as the mortgagor’s right of redemption would arise only after this period of 85 years. With respect to the second clause that the mortgagor could redeem within a period of six months after 85 years failing which the property would be deemed to be sold to the mortgagee without there being a need to execute a fresh sale deed, the court held that this clause amounted to a clog and was void. The test to determine whether long term would or would not amount to a clog on a mortgagor’s right of redemption is therefore, whether he was oppressed by the mortgagee at the time of executing the mortgage. Was it a contract between two unequals? Was the mortgagor in a disadvantageous position and did the mortgagee of his vulnerable position take an unfair advantage? If yes, then it would amount to a clog and if not, then long term in itself would not amount to a clog on mortgagor’s right of redemption. In Pomal Kanji Govindji v. Vrajilal Karsandas Purohit,61 the issue again was the right of the mortgagors to redeem the property before the stipulated period of 99 years. The mortgage was an anomalous mortgage. It was a combination of a simple and a usufructuary mortgage. The terms of the mortgage provided that the right of redemption would arise only after the expiry of 99 years from the date of execution of the mortgage. Since the possession was delivered to the mortgagee, a condition in the deed also empowered him to demolish the existing structures on the property and rebuild the new ones and re-reimburse the entire cost of construction from the mortgagors. In addition, the entire amount was to be paid to the mortgagee only at the end of the term, and no periodical payment was permissible. The mortgagors filed a suit for redemption and for recovery of possession before 99 years. Granting the suit in their favour and holding that these conditions amounted to clog on their right of redemption the court observed, Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail one's right to borrow money on the grounds of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not, must, however,

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The court held that in the present case, the whole amount of interest etc was to be paid only at the time of redemption, which would make redemption practically impossible. The term of 99 years coupled with these conditions were held as clog on the mortgagor’s right of redemption. Similarly, in Vadilal Chhaganlal Soni v. Gokaldas Mansukh,62 the agreement between the mortgagor and the mortgagee was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgagee was given full authority to build any structure on the plot mortgaged after spending any amount he liked. It was held that the two terms of mortgage were so unreasonable and oppressive, that they amounted to a clog on the equity of redemption. The court reiterated the same principle in Chhedi Lal v. Babu Nandah,63 wherein it was observed, that ...freedom of contract unless it is vitiated by undue influence or pressure of poverty should be given a free play. In the inflationary world, long term for redemption would prima facie raise a presumption of clog on the equity of redemption.

In Shivdev Singh v. Sucha Singh,64A, being financially hard-pressed, mortgaged his property to B for a period of 99 years for a consideration of Rs. 7,000. The mortgagee took the possession of the property and was enjoying its usufruct. The mortgagor sold a portion of this property and the seller sued for the redemption after around 26 years. The mortgagee pleaded that the suit for redemption was premature and was liable to be dismissed. The court held that the condition postponing the right of redemption for a period of 99 years for a meagre sum amounted to a clog; more so as the mortgagor was hard pressed. Instances of Conditions Amounting to Clog on Equity of Redemption The following conditions would amount to clog on equity of redemption: (i) In a mortgage for 40 years, a covenant for an automatic renewal of the mortgage for another period of 40 years in case of default in payment;65 (ii) A covenant by the mortgagee for perpetual renewal of the mortgage;66 (iii)A condition of payment of interest only with the principal with a term of 95 years;67 (iv)A condition of redemption only on a specific date after 60 years and on no other day;68 (v) Where a minor’s property is mortgaged for 51 years with a stipulation permitting the mortgagee to take rents and profits as well as the interest and spend at his will any amount on the improvements of the property;69 (vi)Where a childless widow mortgages property in 1909 for Rs. 61 for a term of 199 years and the mortgagee is entitled to raise any construction and get reimbursed for it by the mortgagor at the end of the term;70 (vii) Where property worth 9,000 Rupees is to be redeemed after 50 years for two and a half lakhs;71

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(viii) Where the term for a usufructary mortgage is for 9972 years or 101 years with eight and a half percent interest and the mortgagor is to redeem after paying three times the principal amount.73 (ix)A condition making mortgage irredeemable for 9574 years or 99 years;75 (x) A condition that mortgagee is entitled to retain possession till the trees bear fruits;76 (xi)A condition that mortgagee is entitled to retain possession for another period of 12 years77 in a five year mortgage. Subsequent Arrangements Effecting Right of Redemption At the time of effecting a mortgage, the mortgagee may not lay down oppressive conditions. But if the mortgagor asks for a second loan on the same property or otherwise, sometimes conditions are incorporated in the second agreement that may have the effect of preventing the mortgagor from redeeming his first mortgage. For instance, a person executes two separate successive mortgages of his property to the same mortgagee with an agreement that the first mortgage cannot be redeemed till the second debt is also paid off. This condition is valid and binding on the mortgagor,78 irrespective of the fact that the redemption to second mortgage is barred by limitation.79 However, the rule does not apply in case the mortgagees are different,80 or where the second debt is not taken on the strength of the same property but with the help of a simple money bond.81 Similarly, if the first mortgage was executed by two different mortgagors, but together, while the second is executed by one with the stipulation that he will not redeem the first without redeeming the second, in such case, the first mortgagor is entitled to redeem the first mortgage82 irrespective of this condition. Subsequent Sale of Property A mortgage is not automatically converted into sale in absence of a separate transaction despite a covenant to that effect in the deed83 or an admission to that effect by the mortgagee.84 However, a separate transaction of sale executed in connection with mortgage85 or a surrender86 is valid, and extinguishes the mortgagor’s right of redemption.87 For instance, A mortgages his land to B. The contract provides that in the event of non-payment of loan by five years, the property would be treated as sold to B. On the expiry of five years, A himself executes a sale deed of the land in favour of B. This sale deed is valid as it is not a part of the mortgage and is an independent transaction executed by A. Limitation for Filing a Suit for Redemption From the date88 the mortgagor becomes entitled to redeem the property,89 he can do so within a period of thirty years,90 unless the mortgage has been foreclosed,91 after which both the right to sue for redemption and the right in property is extinguished,92 except in case of a minor93 or where an acknowledgement is made during this period.94 If there is no limitation or period prescribed for redemption of a usufructuary mortgage, the right of the mortgagor to redeem the property is a continuing one and is not subject to any time constraints or limitation.95 As the right of redemption in a usufructuary mortgage arises only after the payment of the loan or Page 34 of 73

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balance amount after adjusting the profits and benefits from the usufruct of the property there is no limitation time period in accordance with the principle of “once a mortgage always a mortgage” unless the parties have agreed that the mortgage is for a specific period only. In that event the limitation would start running on the expiry of that period.96 For instance, the mortgagee was in possession of the property under a usufructuary mortgage for a period of 60 years, and was enjoying it virtually as its owner. In absence of any time limit for repayment of loan, the right of the mortgagor to redeem the property would subsist and the mortgagee’s suit for declaration of title in the mortgaged property on the ground of application of law of limitation would be dismissed.97 The period of limitation for the purposes of redemption of mortgage was initially 60 years under the Limitation Act, 1908, but was reduced to 30 years under Art. 61 of the Limitation Act, 1963. Section 30 of the Act of 1963 provides that any suit for which the period of limitation is shorter than the period prescribed by the Act of 1908, may be instituted within a period of seven years after the commencement of the Act of 1963 or within the period prescribed for such suits by the Act of 1908, whichever period expires earlier. So if a mortgage was executed in 1880, but the mortgagee assigned his rights in 1924, and the deed acknowledged the rights of the mortgagor, the period of limitation would run from the date of execution of assignment deed acknowledging the rights of the mortgagor, and the suit for redemption could be filed till 1969. Accordingly, a suit instituted in 1968 would be within time and not barred by limitation.98 Likewise, if the mortgagor could have redeemed the property under a statute by the year 1961, the limitation period would run from 1961 to a period of 12 years and a suit for redemption filed within this period would not be time barred.1 Similarly, where a mortgage was affected in 1958 through a registered deed of the land in favour of the mortgagee, but without any fixed time period for repayment of loan, though it could be paid in the month of May/June, the mortgagor retained the possession of the property and continued its enjoyment and neither of the parties filed for redemption or foreclosure, since both the mortgagor as also the mortgagee failed to exercise their statutory rights within the period of limitation, the court dismissed the suit of the mortgagee for a declaration that he had become the owner of the mortgaged property on the plea that since the mortgagor had failed to redeem the property within the limitation period, mortgagee’s cause of action arose thereafter and is still within the period of limitation. The court held that no cause of action arose in favour of the mortgagee in absence of a stipulated time period in the mortgage deed and that the right of the mortgagor to redeem the property was still within time. 2 Conditions amounting to Clog, Void Ab Initio or Voidable A condition that restricts or takes away the right of redemption of the mortgagor would be termed as a clog, but the question is whether this condition would be void ab initio, therefore deemed to be non-existing, or it is simply voidable at the option of the mortgagor. In Sangar Gagu Dhula v. Shah Laxmiben Tejshi,3 a residential house was mortgaged for Rs. 11,000 for a period of 99 years in 1914. The possession was delivered to the mortgagee at the Page 35 of 73

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time of the execution of the mortgage. The deed provided that the right of redemption of the mortgagor would arise after 99 years from its execution. The mortgagors filed a suit for redemption after 60 years of the execution of the mortgage on the ground that the long time of 99 years is a clog on their right of redemption. The mortgagees contended, first, that the long term in itself was not a clog and even if it is a clog, it would be deemed to be non existing right from the date of the execution. This would mean that the mortgage was always redeemable. But in that case the suit for redemption should have been filed within a period of 30 years, in accordance with the provisions of the Limitation Act, 1963. As it was filed in the present case after 60 years, the same was barred by limitation and therefore the court cannot entertain the petition for redemption. The court therefore considered the question, whether the oppressive term, which amounts to a clog would be voidable or void ab initio. The question became important as the period of limitation is counted from the time the right arises. If the condition is a clog on the right of redemption, then the mortgagor is entitled to ignore it right from the beginning, and in such cases, the period of limitation would run from the day the execution took place. However, if the court holds that it is a clog, then the limitation period would be counted from the date of the judgment. The trial court accepted the contention of the mortgagees and held that the suit was barred by limitation. The lower appellate court also agreed with this decision and upheld it on appeal. The Gujarat High Court, however, disagreed with the judgment and held that whether or not a particular condition would amount to a clog would depend on the facts and circumstances of each case and merely because the right of redemption is postponed or delayed by a long period of time would not, ipso facto, amount to a clog. The material aspect is that relief from the specific terms of the mortgage deed alleged to be oppressive or amounting to clog is not granted merely for asking or merely by resorting to the overriding principles of equity and justice but only when the inequity of the particular clause of the contract is actually brought home and established by facts and evidence. Therefore, it is only when the mortgagor establishes before the court that in the given set of circumstances, he was taken advantage of by the mortgagee and the terms are oppressive, that the court would relieve him from such conditions in the document. If it is held that the offending clause amounting to clog is void ab initio, then the period of limitation would start from the date of the execution of the deed. But it would also mean that a retrospective cause of action will be conferred in favour of the mortgagor. The court observed: It is only incidentally that the decision holds that such a clog is void. In my opinion when the learned judge referred to such a clog as 'void ab initio' this was a mere label attached to the offending clause with a view to establish that the same requires to be struck down. The reference to such a clog being ab initio null and void and non est was not with a view to differentiate between void ab initio and voidable. Furthermore the phrase void ab initio has not been used in the ...decision in contra-distinction of the phrase 'voidable' ...such observations appear to have been made, with a view to demonstrate that any such or similar terms found oppressive by the court on facts and evidence cannot be held as against the mortgagor and his right to redeem the property and consequently the clog is required to be lifted This does not mean that since the offending clause is non est, the right to redeem the property would accrue to the mortgagor on the date of the mortgage itself and that limitation would commence from that day.

The court held that though the long term of 99 years amounts to a clog, the suit for redemption was within time. Extinction of Right of Redemption

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A right of redemption being a statutory right can only be extinguished by (i) the act of the parties; or (ii) by a decree of the court. On the petition of the mortgagee for foreclosing the mortgage, the court may pass the decree for sale of the property. This decree of the court should run strictly in accordance with the form prescribed for this purpose.4 Generally, the court gives a time frame to the mortgagor within which he should deposit the loan amount until the final decree of foreclosure, and the mortgagor can redeem even after the time fixed in the preliminary decree.5 The final decree extinguishes the right of redemption and the court cannot reopen it to extend the redemption time,6 but not where the right of redemption was not extinguished by passing a specific order.7 If the mortgagor fails to pay the loan amount by the stipulated time and the property is sold at the court auction, the right of the mortgagor to redeem the property is extinguished, even though the certificate of sale issued by the court is not registered.8 A second suit will be hit by the rule of res judicata, and a contention that the decree was erroneous is of no consequence.9 A withdrawal of a suit for redemption10 or its dismissal providing for extinction of right of redemption in the event of default,11 or its non execution due to it being time barred,12 or non execution of a mortgagee’s decree of sale,13 or abatement of the first decree of redemption due to death of mortgagor,14 does not bring it to the end and the right continues. In such cases the mortgagor is entitled to file another suit for redemption.15 Successive suits are indicative of subsisting mortgage and the right co-extinguishes with the mortgage itself.16 Extinction by Act of Parties Equity of redemption does not come to an end by a mere contract of sale17 or a condition of sale in the deed18 or by mutation of names in the revenue register,19 but it comes to an end when the purchaser, after sale by the mortgagee, pays the price,20 or where the usufructuary mortgagee purchases the entire equity of redemption.21 If the mortgagor himself executes a document expressing his inability to pay the loan amount and authorizing the mortgagee to put up the property for public auction to realize his loan, it would result in extinguishing his right of redemption.22 Mortgagee’s Right to Enforce his Security When the mortgagor’s right to redeem accrues, the mortgagee has a right to enforce his security.23 By filing a suit for foreclosure of the mortgage, he, with the help of the court, can cause the property to be sold. The money raised from the sale proceeds would be paid to such mortgagee to the extent of his entitlement. Where a mortgage for a fixed term provides that the mortgagee may sue for sale before the expiry of the term if his security is jeopardised, the right of redemption is not accelerated.24 Re-transfer of the Property

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The mortgagor has a right on payment of money to require the mortgagee, at the cost of the mortgagor, either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute, and where the mortgage has been executed by a registered instrument, to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished. Notice of Time The mortgagee can specify, that if the mortgagor wants to pay the loan amount after the initial time fixed for its payment is over, he should be given a notice to the same effect. This provision to the effect that if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money is valid. The parties may decide what can be reasonable notice.25 The omission to give notice may entitle the mortgagee to six month’s interest in lieu of notice.26 Redemption of the Portion of the Mortgaged Property Normally, the integrity of a mortgage is not broken where more than one mortgagor affects a mortgage. A person interested in only a share of the mortgaged property and not in the whole of it, is not entitled to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage,27 except only where a mortgagee or if there are more mortgages than one, all such mortgagees has or have acquired in whole or in part the share of the mortgagor.28 The character of indivisibility of mortgage exists with reference to both the mortgagor and the mortgagee,29 and therefore an adjustment between them to this effect is not allowed.30 Even if one of the mortgagees acquires the interest of the mortgagor the integrity of the mortgage is not broken.31 Thus, a lessee of a share of a property32 or a part owner can redeem the whole mortgage.33 A partial redemption is allowed only where the indivisibility of the mortgage is broken,34 or there exists a special condition in the deed recognising partial redemption35 or there arises a subsequent bargain between all interested parties,36 or the mortgagee has disintegrated the mortgage.37 But the fact that the mortgagee allows a sharer to redeem his share will not justify partial redemption with respect to the rest,38 or where he divides his interests by gift or assignment to several persons.39 Suit for Partial Redemption A suit for partial redemption is a combination of a suit for redemption and a suit for contribution,40 and therefore lies when the mortgagee acquires a share in the equity of redemption.41 Thus, where a field was mortgaged and then sold to four persons including the mortgagee; the mortgage of portion sold to mortgagee is extinguished and each of the other three can redeem their respective portion after making the remaining as parties.42 Where a mortgagee foreclosed nine villages without making the purchaser of equity of redemption of one village a party, and he sued to redeem the whole mortgage, he is entitled to redeem all

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nine villages.43 OBLIGATION TO TRANSFER TO TRANSFERENCE TO MORTGAGOR

THIRD

PARTY

INSTEAD

OF

RE-

Section 60A. Obligation to transfer to third party instead of re-transference to mortgagor.— (l) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly. (m)The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrances, the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer. (n) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.

RIGHT TO INSPECTION AND PRODUCTION OF DOCUMENTS

Section 60B. Right to inspection and production of documents.— A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.

RIGHT TO REDEEM SEPARATELY OR SIMULTANEOUSLY

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Section 61. Right to redeem separately or simultaneously.— A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together. The effect of the rule is to prevent consolidation of mortgages whether of same or different properties44 and to prevent hardship to the mortgagor.45 An explicit provision46 to the contrary in the deed can exclude the operation of this rule.47 A provision fixing time for payment is not covered under the clause ‘contract to the contrary’.48

RIGHT OF USUFRUCTUARY MORTGAGOR TO RECOVER POSSESSION

Section 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 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 mortgage-money from the rents and profits of the property,—when such money is paid; (b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the mortgage-money,—when the term, (if any), prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided.

GENERAL PRINCIPLE In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. The suit for redemption in a usufructuary mortgage is in essence a suit for possession49 on the satisfaction of debt out of rents and profits50 and not before the discharge51 except on equitable grounds due to misconduct of the mortgagee.52 Page 40 of 73

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For a surplus taken by the mortgagee a claim should be included in the same suit by the mortgagor.53 The parties may agree for a fixed time period for the subsistence of mortgage54 if it is in consonance with an estimate taking into account the quantum of rents and profits.55 Recovery of Possession when Mortgagee Authorised to pay himself from Rents and Profits Where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage-money, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, when the term, (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in court. Where the usufructuary mortgagee leases out the property to the mortgagor for a rent equivalent to interest, the mortgagor has to pay arrears of rent if the lease and the mortgage are part of the same transaction;56 and only the principle money if they are independent of each other. If another mortgage is effected on a usufructuary mortgage, in view of the contract for consolidation, the mortgagee is entitled to retain possession until the second mortgage is paid off57 and in absence of such a consolidation contract, the mortgagor can redeem each mortgage independently.58 ACCESSION TO MORTGAGED PROPERTY

Section 63. Accession to mortgaged property.— Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.

Accession acquired in virtue of transferred ownership.— Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal Page 41 of 73

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money, with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent. per annum. In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor. Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended. ACCESSION Accession, here, means an addition or improvement leading to expansion of or benefit of the mortgaged property.59 Since the mortgage is a transfer of an interest in the mortgaged property, the mortgagee acquires the beneficial of the accession as well. But the general rule is when the mortgagor redeems the property, the right to get the benefit of such accession would be with the mortgagor and not the mortgagee. Accession can be of two types—natural accession and acquired accession. Acquired can again be classified into two parts—separable accession and those which are inseparable, which are integrated with the property. Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage,60 received any accession, the mortgagor, upon redemption shall, in the absence of a contract to the contrary,61 be entitled62 as against mortgagee to such accession. Thus, the increased area of the village mortgaged without boundaries,63 or excess land given to the mortgagee by mistake,64 will pass to the mortgagor on redemption. Accession Acquired in Virtue of Transferred Ownership Where the accessions are natural, they form part of the mortgagor’s security and revert back to the mortgagor upon redemption of the property. For instance, a Muslim inherits half of the house and mortgages his share in the house for raising a loan. He subsequently inherits the other half also and becomes the owner of the whole of the property. If the mortgage was a usufructuary mortgage, the whole house would pass to the mortgagee as acquisition of the other portion of the house would be an accession. However, if the mortgagee, on his own, tries to append property subsequently purchased by the mortgagor independently as an accession, he would be prevented from doing that. Even if the additional property were subsequently mortgaged to the mortgagee, it would be an independent mortgage and not an accession. Separable Accessions Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it65 at the time of redemption, or it will be presumed that he has abandoned them.66 The mortgagor does not lose the right to take them even if the acquisition by mortgagee is benami in the name of a relation.67 For instance, A has a land and on this land, are fruit bearing trees. He mortgages the Page 42 of 73

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fruit bearing trees to B. Subsequently, he mortgages the land also to B and the same are sold through a court order and are purchased by C. These trees are separable accession. If at the time of redemption, A wants the trees as well, he must pay the cost to C. Inseparable Accessions If such separate possession or enjoyment is not possible,68 the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction,69 forfeiture or sale or made with his assent70 to pay the proper costs thereof as an addition to the principal money with interest at the same rate as is payable on the principal; or where no such rate is fixed, at the rate of nine percent per annum. In such cases, the accessions shall be credited to the mortgagor.71 The rule is that if the accession or improvements are carried with the consent of the mortgagor, he is liable to pay either the cost or compensation to the mortgagee. But if it is done without his consent, he is not liable to pay either the cost or compensation. The accession as an integral part of the property would come to him on redemption. For example, acts like adding an upper storey to the mortgaged house72 or rebuilding a house after demolishing a dilapidated one73 or constructing a well74 or planting a grove without the consent of the mortgagor,75 would not make the mortgagor liable, but, if the grove is planted with the consent of the mortgagor, the mortgagee would get the compensation.76 Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended. IMPROVEMENTS TO MORTGAGED PROPERTY

Section 63A. Improvements to mortgaged property.— (l) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof. (m)Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the

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profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.

ESSENTIALS OF IMPROVEMENT (i) The mortgaged property is in possession of the mortgagee; (ii) It has during the continuance of the mortgage, been improved; (iii)The mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement. (iv)The mortgagor shall be liable to pay the cost of such improvements where any such improvement was effected at the cost of the mortgagee and was (a) necessary to preserve the property from destruction or deterioration, or (b) was necessary to prevent the security from becoming insufficient, (c) or was made in compliance with the lawful order of any public servant or public authority, (v) The mortgagor shall, in the absence of a contract to the contrary; (vi)Be liable to pay (a) the proper cost of such improvements, and (b) an addition to the principal money with interest at the same rate as is payable on principal, or, where no such rate is fixed, (c) at the rate of nine percent per annum and the profits, if any, accruing by reason of the improvements shall be credited to the mortgagor.77 Rebuilding a house after demolishing an old one78 or when the old falls down,79 or is destroyed accidentally by fire,80 or improvements to agricultural land to improve its yield81 or construction of a well over it,82 or planting of trees,83 or making additions where the intention of the mortgagee is not bona fide 84 are not improvements within the meaning of this rule; and the mortgagee is not entitled to claim its costs. In case of unauthorised improvements that are not permanent, the mortgagee can remove the materials85 but not when he makes new constructions.86 Contract to the Contrary The rule is subject to a contract87 or a custom88 to the contrary, which should be reasonable.89 Thus a stipulation in the deed, permitting the mortgagee to make any improvements he likes90 or to demolish the existing structure and rebuild a new one at a cost nine times the mortgage money and claim it from the mortgagor, is not justified.91 RENEWAL OF MORTGAGED LEASE

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Section 64. Renewal of mortgaged lease.— Where the mortgaged property is a lease, and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.

GENERAL PRINCIPLE A mortgagee obtaining a lease in his own name is a trustee for those interested in the original lease.92 IMPLIED CONTRACTS BY MORTGAGOR

Section 65. Implied contracts by mortgagor.— In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee,— (a) that the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same; (b) that the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title thereto; (c) that the mortgagor will, so long as the mortgagee is not in possession of the mortgaged property, pay all public charges accruing due in respect of the property; (d) and, where the mortgaged property is a lease, that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against all claims sustained by reason of the non-payment of the said rent or the non-performance or non-observance of the said conditions and contracts; (e) and, where the mortgage is a second or subsequent encumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on each prior Page 45 of 73

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encumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior encumbrance. The benefit of the contracts mentioned in this section shall be annexed to and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

IMPLIED CONTRACTS An implied contract means liabilities of the mortgagor that need not be specified, but are implied. The rule incorporated in this section lays down that in the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee that the interest, which the mortgagor professes to transfer to the mortgagee, subsists, and that the mortgagor has the power to transfer the same.1 A mortgagor cannot derogate from his grant to deny2 or defeat3 the title of the mortgagee, nor can he set up the title of a third person,4 deny ownership of the property,5 or set up the defence of a trust6 unless it is for a public purpose7 or he is a succeeding trustee.8 For instance, where a person mortgages his property to raise a loan, there is an implied contract with the mortgagee that he is entied to transfer the same under a mortgage. He later cannot contend that this property belonged to another person or that the property was not capable of being transferred. Covenant for Title In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee that the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title thereto. This, in law, is to ensure or protect the interests of the mortgagee. There is no duty on the mortgagor to disclose an encumbrance on the property,9 and the mortgagee takes whatever is the title of the mortgagor10 and is entitled to enforce the mortgage against the mortgagor despite the defect in title being within the knowledge of both the parties.11 Thus a mortgagor mortgaging wakf property cannot plead his inability to do so when the mortgagee sues for sale12 except where the mortgage was forbidden by law, as there is no estoppel against a statute.13 Where the debt is not satisfied,14 the mortgagee is entitled to either sue for mortgage money or sue for compensation for breach of covenant for title.15 The benefit of this contract shall be annexed to, and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time, vested. Payment of Public Charges The mortgagor remains the owner of the property and it is his duty to pay the statutory charges Page 46 of 73

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due over the proerpty, such as house tax, etc. In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee that the mortgagor will,16 so long as the mortgagee is not in possession of the mortgaged property, pay all public charges17 accruing due in respect of the property.18 If he fails to pay and the property is sold for arrears, he is still liable if he re-purchases the same.19 This implied covenant comes to an end when he fails to repay the loan and his right of redemption is lost by a court sale on the mortgagee’s decree.20 Where a mortgagee not in possession21 pays the public charges, he is to be paid the costs by the mortgagor. However, this right can be exercised only against the mortgagor and not against22 a subsequent mortgagee.23 Where a mortgagor sells his equity of redemption24 or if a stranger acquires it by adverse possession,25 such person is under no obligation to pay the public charges. The benefit of this contract shall be annexed to, and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time, vested. LEASEHOLDS Where the mortgaged property is a lease, in the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against the claims sustained by reason of the nonpayment of the said rent or the non-performance or non-observance of the said conditions and documents. A mortgagee is liable to pay the rent only when he takes possession.26 PRIOR MORTGAGES At the time of affecting a second mortgage, the mortgagor must disclose the fact that the property is already mortgaged. Where the mortgagor does not disclose an earlier mortgage, the mortgagee has a cause of action to sue for mortgage money as soon as he discovers it,27 even in the absence of a personal covenant.28 The mortgagor, leaving money with the mortgagee to redeem an earlier mortgage, will be liable to pay the excess if the amount falls short of what is required for its discharge.29 MORTGAGOR’S POWER TO LEASE

Section 65A. Mortgagor’s power to lease.— Page 47 of 73

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(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. (2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage, (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance, (c) No such lease shall contain a covenant for renewal, (d) Every such lease shall take effect from a date not later than six months from the date on which it is made, (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified. (3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.

GENERAL PRINCIPLE A mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof, which shall be binding on the mortgagee.30 The effective conditions for these are as follows: (a) Every such lease shall be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage. (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance. (c) No such lease shall contain a covenant for renewal. If it does, the same will not be binding on the mortgagee; (d) Every such lease shall take effect from a date not later than six months from the date on which it is made, (e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease

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shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified. Where the deed contains a covenant against alienation, a lease executed in violation of such covenant31 is void between him and the lessee,32 but the lessee may be given an opportunity by the mortgagee to avoid eviction by redeeming the mortgage.33 The question of the power of the mortgagor to grant a lease of mortgaged property is to be determined with reference to the authority of mortgagor as the agent or bailiff of the mortgagee.34 The lease granted by the mortgagor is valid as against an auction purchaser.35 WASTE BY MORTGAGOR IN POSSESSION

Section 66. Waste by mortgagor in possession.— A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act. Explanation .— A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

GENERAL PRINCIPLE A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient36 or will be rendered insufficient by such act. Ordinarily the mortgagor is deemed to take care of it as the owner of the property would do. However, if he allows the property to deteriorate, he is not liable. But a voluntary act leading to destruction of his own property would affect the mortgagee adversely. Since this property is the security for the repayment of loan, no such act that leads to or may lead to its devaluation should be permitted. The mortgagee has a right to have the mortgaged property secured from deterioration in the hands of the mortgagor or any other person to whose rights, his own were superior.37 Validity of the grant by the mortgagor depends upon whether it reduces the security below the prescribed standards.38 Thus, where during the subsistence of mortgage the house is sold to the purchaser who pulls it down and sells the material,39 or a co-tenant who fells the trees to cause a deficit in the prices realised at sale,40 the mortgagee is entitled to damages. Page 49 of 73

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Similarly, a lease detrimental to the interests of the mortgagee41 or a permanent lease granted during a simple mortgage,42 or after the property has been advertised for sale,43 is not binding on the mortgagee. But the mortgagor is empowered to effect a second mortgage or sell his equity of redemption.44 RIGHTS AND LIABILITIES OF MORTGAGEE

Section 67. Right to foreclosure or sale.— In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgagemoney has become 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 a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold. A suit to obtain 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— (a) to authorize 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 authorize a mortgagor who holds the mortgagee’s 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 authorize 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 authorize a person interested in part only of the mortgage-money 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.

RIGHTS TO FORECLOSURE OR SALE The components for the section are: (i) In the absence of a contract to the contrary, the mortgagee has, at any time after (a) the mortgage-money has become due to him, and Page 50 of 73

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(b) before a decree has been made for the redemption of the mortgaged property, (c) or the mortgage-money has been paid or deposited, (ii) a right to obtain from the Court a decree; (iii)that the mortgagor shall be absolutely barred of his right to redeem the property; or (iv)a decree that the property be sold. A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure. The mortgagor has the option to deposit all the dues in the court before the passing of a final decree in a foreclosure suit.45 Contract to the Contrary The rights of the mortgagee to foreclose can be partially46 or fully curtailed,47 or accelerated48 by a contract to the contrary, but at the same time, that may have no impact on the mortgagor’s right to redeem.49 A provision for re-conveyance50 where it is not conditional upon payment of interest is a contract to the contrary.51 When does the Right to Foreclose Arise? Where no time is fixed for repayment of debt, the right to foreclose arises from the date of the execution of the deed,52 or from the date of demand for repayment is made and is refused by the mortgagor.53 In case a time is fixed, the right arises after the time expires.54 A default in payment of interest does not accelerate the right of foreclosure unless the contract specifies so.55 It, however, entitles the mortgagee to take action of sending a notice of demand56 or filing a suit.57 In case the agreement58 is to repay in instalments, the right to sue arises each time an instalment is due.59 Filing a Suit for Foreclosure A suit for foreclosure can be filed within 12 years from the time the mortgage money becomes due,60 including a personal claim where the money realised from the sale proceeds is insufficient.61 Where the time is not stipulated in a simple mortgage, the right of foreclosure would arise soon with execution of the mortgage and a suit filed after 12 years by the mortgagee would be barred by limitation.62 In case of such suits there are two decrees; a preliminary decree and a final decree in case of default.63 A simple64 or a usufructuary65 mortgagee cannot foreclose, but may sue for sale of property66 or for a deree of money and interest.67 A usufructuary mortgagor has a right to tender payment of loan amount even after a preliminary decree and despite the fact that he fails to deposit the sum within the time specified under a preliminary decree, the period of limitation would not start running till the deposit is made.68

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1

Madan Lal Sobti v. Rajasthan State Industrial Development and Investment Corporation, AIR 2007 (NOC) 638 (Del).

2

Mortgage is the transfer of interest for the purposes of securing the repayment of the debt, but such interest is in itself immovable property see Ali Hussain v. Nilla Kanden, (1864) 1 Mad HC 356.

3.

Sadiq Ali Khan v. Jai Kishori, AIR 1928 PC 152; Mohiree Bibi v. Dharamdas Ghose, (1903) ILR 30 Cal 539; Balwant Singh v. Clancy, (1912) ILR 34 All 296. Where a minor falsely represents himself to be a major he can be estopped from denying the contract and the mortgage is valid, see Ganesh v. Bapu,(1895) 21 Bom 198; Saral Chand v. Mohun, (1898) ILR 25 Cal 37; see also Brohmo v. Dharmo, (1898) 26 Cal 381, wherein it has been held that despite a false representation coming from the minor the mortgage is invalid.

4.

Sinaya v. Munisami, (1899) ILR 22 Mad 289. Such a mortgage without the sanction is merely voidable and not wholly void, see Sadashi v. Trimbak, (1898) 23 Bom 146.

5.

Keka v. Sirajuddin, AIR 1951 All 618 [LNIND 1951 ALL 13](1951) All LJ 436.

6.

Nisar Ahmed Khan v. Raja Mohun, AIR 1940 PC 204; Raja Mohun Manucha v. Nisar Ahmed, AIR 1937 Oudh 87.

7.

Braj Mohan Manucha v. Manzoor Ahmed Khan, AIR 1943 PC 29.

8.

Bemola v. Mohun, (1880) ILR 5 Cal 792.

9.

Jugjeewandas v. Ramdas,(1841) 2 MIC 487.

10. Hem Chandra Roy v. Suradhani, AIR 1940 PC 134; Bank of Khulna v. Jyoti Prakash Mitra, 67 IC 377. 11. Debi Singh v. Bhim Singh, AIR 1971 Del 316 [LNIND 1971 DEL 41]. 12. Re Pollards Estate,(1863) 3 De GJ & Sm 541. 13. Dhanki v. Chandubha, AIR 1969 SC 759. 14. Zafar Ahsan v. Zubaida Khatun, AIR 1929 All 604; Thakur Das v. Putli, AIR 1942 Lah 611; Raghave v. Sriniwasa, (1917) ILR 40 Mad 308; Madhab Koeri v. Baikuntha, (1919) 4 Pat LJ 682. 15. Mehdi Ali v. Chunni Lal, AIR 1929 All 834; Raghubir Singh v. Jai Indra Bahadur Singh, AIR 1919 PC 55. 16. Pappamma v. Ramch, (1896) 19 Mad 249. 17. State of Punjab v. Labb Singh, (1985) 4 SCC 52 [LNIND 1985 SC 237]. 18. Sohanlal v. Mohan Lal, AIR 1928 All 729. 19. Ramkinkar v. Satyacharan, AIR 1939 PC 14; Bharat Singh v. Chadi, AIR 1947 All 27; Jagdamba Loan Co. v. Shiba Prasad Singh, AIR 1941 PC 36. 20. Ramchand v. Saraswatipore Tea Co., 40 Calwn 1199; see also Ghose and sons v. Chandrapore Tea Co., 39 Calwn 1261, wherein it was held that the right to obtain tea export quota is not an interest in the mortgaged properties in case of a mortgage of a tea estate. 21. Anantha Iyer v. Mittadar,(1914) Mad WN 891. 22. Khub Chand v. Kalian Das, (1876) ILR 1 All 240; Kanti Ram v. Kutubbudin, (1895) ILR 22 Cal 33. 23. Muthu Vijaya v. Venkatachalam, (1897) ILR 20 Mad 35; Ram Shankar v. Ganesh Prasad, (1907) ILR 29 All 385. 24. Mohan Lal v. Indumati, (1917) ILR 39 All 244. 25. Mehdi Ali v. Chunni Lal, AIR 1929 All 834; Shyam Sunder v. Bajpai, (1903) ILR 30 Cal 1060; Raghubir v. Jai Indra Bahdur Singh, AIR 1919 PC 55. 26. Girindra v. Bejoy, (1899) ILR 26 Cal 246; Tokhan Singh Girwar, (1905) ILR 32 Cal 494. 27. Ram Khelawan v. Ramnanadan Prasad, (1949) AP 505. 28. See The Transfer of Property Act, 1882, s. 58 (a);Jati Kar v. Mukunda Deb, (1912) ILR 39 Cal 227. 29. Arjun Prasad v. Central Bank of India, AIR 1956 Rang 32. 30. Sham Sunder v. Cheita,(1871) 3 NWP 71; Shirish v. Mungri, (1905) 9 Cal WN 14; Co-operative Bank Ltd. v. Surendra, AIR 1932 Cal 524. 31. Tahilram v. DMELLO, (1916) 18 Bom LR 587 [LNIND 1916 BOM 9]. 32. Backer Khorasain v. Ahmed Ismail, AIR 1928 Rang 28. 33. Damodar v. Atma Ram, (1906) 8 Bom LR 344 [LNIND 1905 BOM 9]; Shrish Chandra v. Mungri Bewa, (1905) 9 Cal WN 14. 34. Ko Shway Anug v. Strang Steel Co., (1894) 21 Cal 241.

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(IN) Poonam Pradhan Saxena : Property Law 35. Ko Kywetnee v. Ko Koung, (1866) 5 WR 189. 36. Shiv Ram v. Dhau, (1902) 4 Bom LR 577. 37. Babu Ram v. Ram Swarup, AIR 1926 All 164; Ram Swarup v. Mohun Lal, AIR 1924 All 833; Bansidhar v. Sant Lal, (1888) ILR 10 All 133; Misri lal v. Mozhar Hossein, (1886) ILR 13 Cal 262. 38. Baldeo v. Miller, (1904) ILR 31 Cal 667. 39. Tripura Modern Bank v. Nabadwip, (1945) 49 Calwn 494; Sonaram v. Sutaram, (1940) 45 Calwn 50. 40. Paliniappa v. Lakshmanan, (1893) ILR 16 Mad 429. 41. Punjab National Bank v. Punjab Corpn. Bank, AIR 1939 Lah 15. 42. Co-operative Hindustan Bank v. Surendra, AIR 1932 Cal 524. 43. United Bank of India v. The New Glencoe Tea Co., AIR 1987 Cal 143 [LNIND 1986 CAL 319]; Punithavelu v. Bhashyam, (1902) ILR 25 Mad 406. 44. Basavireddy v. Kamaraju, AIR 1933 Mad 241 [LNIND 1932 MAD 199]. 45. Venkatachalam v. Venataraman, AIR 1940 Mad 929 [LNIND 1940 MAD 163]. 46. Re Ahmed Ali Mohamad, AIR 1932 Bom 613. 47. Maharashtra State Co-operative Bank Ltd. v. Assistant Provident Fund Commissioner, AIR 2010 SC 868 [LNINDORD 2009 SC 347]. 48. Manmohan Mukherji v. Kesrichand, (1935) 62 Cal 1046; Co-operative Bank Ltd. v. Surendra, AIR 1932 Cal 524; Moosa Abdul Habib v. Maung Tun, (1931) ILR 2 Rang 182. 49. Manmohan Mukherji v. Kesrichand, (1935) ILR 62 Cal 1046. 50. Mallayyan v. Krishna Pillai, AIR 1955 Tr & Coch 162; Narasin v. Venkataramiah, (1919) ILR 42 Mad 59; Venkatachalan v. Venkatarami, AIR 1940 Mad 929 [LNIND 1940 MAD 163]; Ramswarup v. Mohan Lal, AIR 1924 All 833; Dayabji v. Karachi Electric Supply Corpn., AIR 1940 Sau 177; Backer Khorasanee v. Ahmed Ismail, AIR 1928 Rang 28; Manakjee Pallanjee v. SA Mayyappa Chetty, 28 IC 462; Sreeram v. Bamireddi, (1918) 35 Mad LJ 450 ; see also Ko Kywetnee v. Ko Koung, (1866) 5 WR 189; Sham Sunder v. Cheita, (1871) 3 NWP 71, wherein it was held that a mortgage of movables will prevail against a bona fide purchaser without notice of such mortgage. 51. Co-operative Bank Ltd. v. Surendra, AIR 1932 Cal 524. 52. Jammu and Kashmir Bank v. Tek Chand, AIR 1959 J&K 67. 53. Official Assignee of Bombay v. Chimniram Motilal, AIR 1933 Bom 51; United Bank of India v. The New Glencoe Tea Co., AIR 1987 Cal 143 [LNIND 1986 CAL 319]. 54. Najibulla v. Nasir, (1881) ILR 7 Cal 198; see also Dakkata v. Sasnapari, (1914) Mad WN 270 wherein it was held that if the description was such as to enable the land to be determined, it is a sufficient specific description; see also the Deccan Agriculturists Relief Act, 1879, s. 22, where the meaning of the term ‘specifically mortgagedis identical. 55. Ram Sidh v. Bal Gobind, (1887) ILR 9 All 158; But see Jagta Dhar v. Brown, (1906) ILR 33 Cal 1133. 56. Shadi Lal v. Thakur Das, (1890) ILR 12 All 175. 57. See Darshan Singh v. Hanwanta, (1877) ILR 1 All 274, wherein it was held that although the properties were wrongly described, their correct description in another property and its reference was sufficient. 58. Collector of Etawah v. Beti Maharani, (1892) ILR 14 All 162; Bheri v. Maddipatu, (1881) ILR 3 Mad 35; Kamara v. Yerakota, (1913) 24 Madlj 479; Baldeo Rai v. Murli Rai, (1912) 10 All LJ 120. 59. Deojit v. Pitambar, (1876) ILR 1 All 275. 60. Phul Kaur v. Murli Dhar, (1897) 2 All 527. 61. Wahidunnissa v. Gobardhan, (1900) 22 All 453. 62. Kaushalya Devi v. Bawa Pritma Singh, AIR 1960 SC 1030 [LNIND 1960 SC 130]; Chetti Goundan v. Sundaram Pillai, (1864) 2 Mad HCR 51. 63. Nidhasah v. Murli, (1903) 25 All 115, PC; see also Abdullah v. Kashi, (1887) ILR 11 Bom 462. 64. Gunno v. Latafat, (1878) 3 Cal 336; Ramsidh v. Balgovinda, 9 All 158; Jagatdhar v. Brown, 33 Cal 1133; Najibullah v. Nasir, (1881) ILR 7 Cal 196; Bhupal v. Jag Ram, (1879) ILR 2 All 449; Madna Lal v. Indomati, (1917) ILR 39 All 244. 65. Satya Prasad v. Bhowani, (1899) 2 All 481; Anand Ram v. Dhanpat Singh, AIR 1916 Pat 11; Ponnuranga v. Thandavaya, (1915) Madwn 21; Sheoratan v. Mahipal, (1885) ILR 7 All 258 (FB).

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(IN) Poonam Pradhan Saxena : Property Law 66. Bhagwan Sahay v. Bhagwan Din, (1890) ILR 12 All 387; Hans Raj v. Ram, AIR 1952 Punj 181; Alderson v. White, (1858) 2 De G & J 97. 67. Narayan Pillai v. Narayani Amma Ponnamma, AIR 1992 SC 146. 68. Basanti Lal v. Phaphi, AIR 2008 Raj 72 [LNINDU 2007 RAJ 863]. 69. Basanti Lal v. Phaphi, AIR 2008 Raj 72 [LNINDU 2007 RAJ 863]. 70. Ramasami v. Sundara, (23 IC 805; Kumarappan v. Narayana, 35 IC 455. 71. State of Kerela v. Cochin Chemical Refineries, AIR 1968 SC 1361 [LNIND 1968 SC 86]; see also Gokulchand v. Rahiman, (1907) PR 59 (FB), wherein it was held that non payment of full consideration invalidates the mortgage. 72. Raja Thirumal v. Pandla Muthial, (1912) ILR 35 Mad 114; Rashik Lal v. Ram Narain, (1912) ILR 34 All 273; Bajrangi Sahai v. Udit Narain, (1905) 10 Calwn 932; Makhan Lal v. Hanuman, (1917) 2 Patlj 168; Rajani Kumar v. Gaur Kishore, (1908) ILR 35 Cal 1051; Motichand v. Sagun, (1905) ILR 29 Bom 46; Zamindar v. Subbaraya, (1918) Mad WN 146 ; see also Subbarau v. Devu Shetti, (1895) ILR 18 Mad 126, wherein it was held that in such a case the mortgagor can rescind the mortgage. 73. Ram v. Shedilal, (1888) 11 All 136. 74. Hewanchal v. Jawahir, (1889) ILR 16 Cal 307, PC; Motan Mal v. Muhamad, AIR 1922 Lah 254 (FB); Pawan Kumar Dulari Kaur, (1920) 1 Patlj 544; Rama Reddi v. Appaji Reddi, (1895) ILR 18 Mad 248; Moti Singh v. Ramohari Singh, (1897) ILR 24 Cal 699; Bikramjit Singh v. Durga Dayal, (1894) ILR 21 Cal 274; see also Rikki Ram v. Sheo Parsahn, (1896) ILR 18 All 316; Narinder Bahadur v. Khadim Hussain, (1895) ILR 17 All 581 wherein it was held that interest awarded by way of damages is to be treated as a decree for damages and not the mortgage money. The court may refuse to award interest in cases of circumstances justifying such an action see, Registered Jessore Laon Co. v. Shailjanath, AIR 1932 Cal 689. 75. Vaman Prabhu v. Maria Alcina Gonsalves, AIR 1995 SC 973 [LNIND 1994 SC 965]; Chaganlal v. Anantaraman, AIR 1961 Mad 415 [LNIND 1960 MAD 160]; Revana v. Sanna Setty, AIR 1958 Mys 32; Aditya Prasad v. Ram Ratan Lal, AIR 1930 PC 176; Abbas Khan v. Ram Dos, AIR 1928 Lah 342; Badhwa Ram v. Akbar Ali, AIR 1927 Lah 817; Manghi v. Dial Chand, AIR 1926 Lah 624; Ganga Ram v. Natha Singh, AIR 1924 PC 183. 76. Nammalwar Chetty v. Krishnaswamy, AIR 1923 Mad 71; Manik Chand v. Rangappa, (1920) 45 Bom 523; Alia Khan v. Kanshi Ram, (1913) PR 45. An absence of an express reference to interest in the mortgage deed does not necessarily mean a contact to the contrary see, Rang Raj Singh v. Sheo Narain, AIR 1928 Pat 398. 77. Nader Shaw v. Shirinbai, AIR 1924 Bom 264; Varadarajulu v. Dhanalakshmi,(1914) 16 Madlt 365. 78. See also Ramchandra v. Ishwar Chandra, AIR 1921 Cal 172 (FB). 79. Kottappa v. Vallur, (1902) ILR 25 Mad 50. 80. Tokhan Singh v. Girwar, (1905) ILR 32 Cal 494; Girindra v. Bejoy, (1898) 26 Cal 246. 81. Raman Pillai v. Gowri Pillai, AIR 1954 Tr Coch 7. 82. Nand Lal v. Dharam Deo, 78 IC 457. 83. Natesa Aiyar v. Suhasranama, AIR 1927 Mad 773 [LNIND 1927 MAD 10]. 84. Niaz Ahmad v. Mangulal, (1908) 5 All LJ 723. 85. Madan Lal Sobti v. Rajasthan State Industrial Development and Investment Corporation, AIR 2007 (NOC) 638 (Del). 86. Hanuman Prasad v. Babuee, 6 Mad IA 393; Ramgopal v. Ramdutt, (1970) 13 WR 82 (FB). 87. Kaneshwar Singh v. Khaichow Singh, AIR 1973 Gau 43. 88. See Abdullah Bhai v. Kashi, (1887) ILR 11 Bom 462, where though the deed was called karzrokha meaning a debt note yet it was held not to be a mortgage. 89. See Kottayya v. Annapurnamma, AIR 1945 Mad 189 [LNIND 1945 MAD 26], where the deed though called a mortgage was in fact a lease; Subhabhat v. Vasudev Bhat, (1878) ILR 2 Bom 113 where the transaction was a sale liable to be converted into a mortgage yet was described as a mortgage. 90. Jawahir mal v. Indumati, (1914) ILR 36 All 201, where though the words mortgage did not appear the deed was construed as a mortgage. 91. Ismail Nathabai Khatri v. Muljibhai Shankerbhai Brahambhat, AIR 1994 Guj 8 P.Mangandas, AIR 1973 Guj 190 [LNIND 1972 GUJ 31].

[LNIND 1992 GUJ 228]; C. Madhaji v.

92. Palani Gounder v. Thrumalai Gounder, (1981) 2 Madlj 122. 1.

Tukaram v. Ramchand, (1902) ILR 26 Bom 252; Kalabhai v. Secretary of State, (1905) ILR 29 Bom 19.

2.

Shankaral Ganulal v. BS Bharuka, AIR 1999 SC 260.

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(IN) Poonam Pradhan Saxena : Property Law 3.

AIR 2005 MP 229 [LNIND 2005 MP 232].

4.

Hukumchand v. Radhakishen, AIR 1930 PC 76; JK Pvt. Ltd. v. New Kaisar-I-Hind Co., AIR 1970 SC 1041 [LNIND 1968 SC 412]; Ram Het v. Pokhar, AIR 1932 Oudh 54.

5.

Sichel v. Mosenthal,(1862) 30 Beav 371.

6.

Hukumchand v. Pioneer Mills, AIR 1927 Oudh 55; Gregson v. Udoy Aditya Deb, (1890) ILR 17 Cal 223; Meenakshi Sundara v. Rathnasami, (1918) ILR 41 Mad 959.

7.

Seth Jaidayal v. Ram Sahe, (1890) ILR 17 Cal 432, PC; Ankaran v. Saidamadath, (1879) ILR 2 Mad 79; Sheikh Galim v. Sadarjan, (1916) 43 Cal 59.

8.

Datubhai v. Abubaker, (1888) ILR 12 Bom 242.

9.

Sheopait Singh v. Jagdeo Singh, AIR 1931 All 95; Thakar Singh v. Jagat Singh, AIR 1933 Lah 1. The mortgagor cannot claim the return of proportionate extent of the land and misuse profits of such proportions, see Sundaram Aiyer v. Valia, AIR 1947 Mad 197 [LNIND 1946 MAD 180].

10. Ankaran v. Saidamadath, (1879) ILR 2 Mad 79; Yadavendra v. Srinivasa, AIR 1925 Mad 62 [LNIND 1924 MAD 48]; South African Territories Ltd. v. Wallington, (1898) AC 309; Sreenath v. Cally Doss, (1878) 5 Cal 82; Rajagopala v. Sheikh Dawood, (1918) 34 Madlj 342; Sheikh Galim v. Sadarjan, (1916) ILR 43 Cal 59; Phul Chand v. Chand Mal, (1908) ILR 30 All 252. 11. Rashik Lal v. Ram Narain, (1912) ILR 34 All 273; Bajrangi Sahai v. Udit Narain,(1905) 10 Calwn 932; Rajai Tirumal v. Pandla Muthial, (1912) ILR 35 Mad 114; Makhan Lal v. Hanuman, (1917) 2 Pat LJ 168; Rajani Kumar v. Gaur Kishore, (1908) ILR 35 Cal 1051; Motichand v. Sagun, (1905) ILR 29 Bom 46; Zamindar v. Subbaraya, (1918) Mad WN 146 ; see also Gokulchand v. Rahiman, (1907) PR 59; Subbarau v. Devi Shetti, (1895) ILR 18 Mad 126. 12. Gobinda Chandra v. Dwarka Nath, (1908) ILR 35 Cal 837; Jawahir Mal v. Indomati, (1914) ILR 36 All 201. 13. Shiva Prasad v. Deni Madhab, (1922) 1 Pat 387; Altaf v. Brij Narain, AIR 1929 All 281; Benaras Bank v. Harprasad, AIR 1936 Lah 482. 14. Sher Singh v. Daya Ram, AIR 1932 Lah 465. 15. Matlub Hassan v. Kalawati, AIR 1933 All 934; Khatun v. Tahira Khatun, 19 IC 661. 16. Kishan Lal v. Ganga Ram, (1891) ILR 13 All 28; Royzuddi v. Kali Nath, (1906) ILR 33 Cal 985. 17. Govindraj v. Ravji, (1888) ILR 12 Bom 33. 18. JK Bombay Private Ltd. v. New Kaiser-i-Hind Spinning and Weaving Company, AIR 1970 SC 1041 [LNIND 1968 SC 412]. 19. Dattaraya Sahnker Mote v. Anand Chintaman Datar, (1974) 2 SCC 799 [LNIND 1974 SC 295]. 20. Tarachand v. Kosarimal, AIR 1973 Raj 123. 21. Jaswant Kaur v. Des Raj, AIR 2010 HP 61 [LNIND 2009 HP 90]. 22. A mortgagee can effect a equitable sub-mortgage by deposit of mortgage deed, see Gokul Das v. Eastern Mortgage and Agency Co., (1906) ILR 33 Cal 410; Maung Thanag v. MM Chettiar Firm, AIR 1936 Rang 366. 23. William Arratoon Lucas v. Bank of Bengal, AIR 1926 PC 129. 24. Fanny Skinner v. Bank of Upper India, AIR 1935 PC 108; Official Receiver v. Lakshman, AIR 1921 Mad 681 [LNIND 1921 MAD 169]; Perumal v. Perumal, AIR 1921 Mad 137. 25. Chinnayya Rawutan v. Chidambara Chetty, (1880) ILR 2 Mad 212. 26. Chinnah Goundan v. Subramania Chettiar, AIR 1959 Mad 246 [LNIND 1958 MAD 112]. 27. Someshwar v. Naranbhai, (1911) 13 Bom LR 90 [LNIND 1910 BOM 34]; Ganesh v. Vasudeo, AIR 1922 Bom 424. 28. Vengannan Chettiar v. Ramaswami, AIR 1943 Mad 498; Narayan Vithal v. Ganoji, (1891) ILR 15 Bom 692; Gokul Das v. Debi Prasad, (1906) ILR 28 All 638; see also Padgaya v. Baji, (1896) ILR 20 Bom 549. 29. Muthu Vijia Raghunatha v. Venkatachallam, (1897) ILR 20 Mad 35; Ram Shanker Lal v. Ganesh Prasad, (1907) ILR 29 All 385 (FB); see also Vengannan Chettiar v. Ramaswami, AIR 1943 Mad 498; see however Misri Lal v. Abdul Aziz (1902) All WN 216; Ganga Prasad v. Chunni Lal, (1896) ILR 18 All 113; Ram Jatan Rai v. Ramhit Singh, (1905) ILR 27 All 511. 30. Mohidin Pichai v. Meera Rowther, AIR 1937 Mad 709 [LNIND 1936 MAD 65]. 31. Govindan v. Nagayan, AIR 1932 Mad 238 [LNIND 1931 MAD 193]. 32. A personal covenant to pay is implied and an essential part of every simple mortgage, see Jangi Singh v. Chander, (1908) ILR 30 All 390. The name simple mortgage is generally applied to all transactions in which the borrower binding himself personally for the repayment of the loan pledges his land as a collateral security, see Prakash v. Mukhtar, AIR 1940 Lah 486; Dhapubai v. Chandra, AIR 1938 Cal 524.

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(IN) Poonam Pradhan Saxena : Property Law 33. In a simple mortgage, the interest transferred is the right to have the property sold. It is not necessary that the deed should contain it in express words, see Dalip Singh v. Bahadur Ram, (1912) 34 All 446; Venkatarama v. Suppanandan, 27 Mad LJ 58; Yeshwant v. Vithal, (1897) ILR 21 Bom 271. 34. Wahidunnissa v. Gobardhan, (1900) ILR 22 All 453. 35. Ram Narayan Singh v. Adindra Nath, AIR 1916 PC 119. 36. Ram Kishore v. Surajdeo, (1911) 9 Cal LJ 5; Wahidunnissa v. Gobardhan, (1900) ILR 22 All 453; Bhagwan v. Parmeshwari, (1907) 5 Cal LJ 287; Abbakke v. Kinhiamma, (1906) 29 ILR Mad 491; Jangi Singh v. Chander Mal, (1908) ILR 30 All 388. 37. Yashwant v. Vithal, (1897) ILR 21 Bom 271; Kalee v. Rai Kishoree, (1873) 19 WR 281. 38. Kalka Singh v. Paras Ram, (1895) ILR 22 Cal 434; Chennapatnam v. Tadakamalla, (1904) ILR 27 Mad 86; Bunseedhar v. Sujaat, (1889) 16 Cal 540; Gopalaswamy v. Arunachala, (1892) ILR 15 Mad 304; Singjee v. Tiruvengadam, (1890) ILR 13 Mad 192. 39. Anglo Indian Trading Co. v. Brierly, 8 IC 302. 40. Ram Gopal v. Ram Chandra, AIR 1949 Nag 354. 41. Pappamma v. Pratapa, (1896) ILR 19 Mad 249. 42. Saraswati Devi v. Krishnaram Baldeo Bank Ltd., AIR 1998 MP 73 [LNIND 1997 MP 412]. 43. Yashwant v. Vithal, (1897) 21 Bom 271. 44. Onkar Ramshet v. Goverdhan, (1890) ILR 14 Bom 577. 45. Ram Brahman v. Venkatanarasu,(1912) 23 Mad LJ 131; Sant Ram v. Bhagwat Dass, AIR 1958 P&H 309; Ponnuranga v. Thandavarya, (1915) Mad WN 21. 46. Rangaswami v. Muttukumarappa, (1887) ILR 10 Mad 509; Sheoratan v. Mahipal, (1885) ILR 7 All 258; Ponnuranga v. Thandavarya, (1915) Mad WN 21; Ramdhari Lal v. Janessar, (1870) 6 Beng LR App 14. 47. Kishan Lal v. Ganga Ram, (1891) ILR 13 All 28; Ma Hnin Yeik v. KARK Chettiar Firm, AIR 1939 Rang 321. 48. Nandan v. Juman, (1912) 34 All 640. 49. Aimadar v. Makhanlal, 33 Cal 1015; Nandan v. Jumman, (1912) 34 All 640; Vyapuri v. Sunamma, 29 Mad LJ 645 (FB); Priyasakhi v. Bireshwar, 21 Cal WN 177. 50. Balkrishan v. Mohsin Bhat, AIR 1999 MP 86 [LNIND 1999 MP 334]. 51. Mumtaz v. Mt Luchmi, AIR 1929 All 178 reversed in appeal on merits AIR 1931 All 196. 52. ‘Certain date means on or before the date and is referable to the default and is an essential ingredient of mortgage by conditional sale, see Kinuram v. Nitve Chand, (1907) 11 Cal WN 400; Mahomad Muzaffer Ali v. Asraf Ali, 25 IC 93; Padmanabha v. Sitarama, AIR 1928 Mad 28 [LNIND 1927 MAD 262]; Asmal Bagas Abharam v. Raj Mahijibhai Parbhasingh, AIR 1974 Guj 19 [LNIND 1972 GUJ 9]. 53. See The Transfer of Property Act, 1882, s. 58(c). Mortgage by conditional sale was prevalent among Hindus, see Sheoram Singh v. Babu Singh, AIR 1926 All 493; Ali Ahmed v. Rahamatullah, (1892) ILR 14 All 195; Ramasami v. Samiyappanayakan, (1882) ILR 4 Mad 179; see also Balkishen v. Legge, (1899) 22 All 149, wherein the Privy Council in reference to mortgage by conditional sale observed that the framers of the Act intended to state the existing law and practice in India while enacting the definition of mortgage. Mortgage by conditional sale was called by bil wafa in the United Province, see Ali Ahmed v. Rahamatullah, (1892) ILR 14 All 195, gahan lahan in Bombay, see Shanker Bhai v. Kassi Bhai, (1872) 9 Bom HCR 69, and muddata kiryam or peruvarthum in Madras, see Lakshmi v. Krishna, (1871) 7 Mad HC 6; Shelari v. Mangalom, (1876) ILR 1 Mad 57. 54. In ancient law of India there was no equity of redemption in case of default in a mortgage by conditional sale or in a sale with an option of re-purchase, see Thumbaswamy v. Mohamad Hossein, (1875) 1 Mad 1; Gobardhan v. Gokul Das, (1880) ILR 2 All 633; Mallikarjunuda v. Mallikarjunada, (1885) ILR 8 Mad 185; Pattabhiramier v. Vencatarow,(1870) 13 MIA 560. 55. Mahomad Haji v. Ramappa, AIR 1929 Nag 254; Ramasami v. Samiyappanayakan, (1882) ILR 4 Mad 179; Balkishen v. Legge, (1899) 22 All 149; Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 [LNIND 1999 SC 260]. 56. Raj Kishore v. Prem Singh, AIR 2011 SC 382 [LNIND 2010 SC 1207]; C Cheriathan v. P. Narayanan, AIR 2009 SC 1502 [LNIND 2008 SC 2479]; C Raghunathan v. K Nageshwar Rao, AIR 2009 AP 205 [LNIND 2009 AP 521]; Assam State Electricity Board v. R N Dutta, AIR 2009 Gau 117 [LNIND 2008 GAU 188]; S K Mohammad Ilyas v. Narayan Sah, AIR 2009 Pat 17 [LNINDU 2008 PAT 272]; Vishwanath Dadoba Karale v. Parisa Shatappa Upadhuya, AIR 2008 SC 2510 [LNIND 2008 SC 670]; Amirchand Meghraj v. Devidas Bhogaram, AIR 1973 MP 15; Chunchun Jha v. Ibadat Ali, AIR 1954 SC 345 [LNIND 1954 SC 65]; Shiv Ram Bhika Bodke v. Sadashiv Laxman Sanap, AIR 2007 Bom 162 [LNIND 2007 BOM 418]; Mishreelal Shah v. Jaganath Sah, AIR 2007 Pat 145; Vasant Rao v. Kishan Rao Neb, AIR 2008 Bom 42 [LNIND 2007 AUG 280]. 57. Hasam Nurani Malak v. Mohan Singh, AIR 1974 Bom 136; Suryaprakasha v. Venkataraju, AIR 1953 Mad 830; Askaram v. Madan Lal, AIR 1995 Raj 130; Sunil Kumar Sarkar v. Aghore Basu, AIR 1989 Gau 39 [LNIND 1987 GAU 16]. In Punjab where the TP Act is not in force, a sale deed and a stipulation for re-conveyance by a separate document may amount to a mortgage if the latter is

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(IN) Poonam Pradhan Saxena : Property Law registered, see Lal Chand v. Atma Ram, AIR 1960 Punj 444; Amir v. Inder Singh, AIR 1934 Lah 453; Sita Ram v. Basheshar Dayal, AIR 1964 Punj 81; Raghbur Dayal v. Zahur Ahmad, (1946) 48 Punj LR 517. 58. Ahmad Hussai v. Azar Ali, AIR 1944 Oudh 305; Ganesa v. Gnanasi Khamani, AIR 1925 Mad 37; Ram Din v. Rang Lal, (1895) ILR 17 All 451; Ayyavayyar v. Rahimansa, (1891) ILR 14 Mad 170; Muthuvelu v. Vyithilinga, (1919) 42 Mad 407; Ghulam Nabi v. Niazunnissa, (1911) ILR 33 All 337; see also Madhu Singh v. Dhonga Mandal, AIR 1983 Pat 60, wherein it was held that where the question is whether a document which squarely falls within the definition of mortgage by conditional sale is a sale with the condition of re-purchase, the presumption may be that the document is a mortgage by conditional sale and the onus will be upon the defendant to displace the presumption. 59. Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 [LNIND 1999 SC 260]; Tamboli Ramanlal Motilal v. Ghanchi Chimanlal Keshavlal, (1993) Supp 1 SCC 295. 60. Mahabir Singh v. Begum Sahu, AIR 1949 Pat 568. 61. Kaneshwar Singh v. Khaichow Singh, AIR 1973 Gau 43. 62. Nana Tukaram v. Sonabai, AIR 1982 Bom 437 [LNIND 1982 BOM 53]. 63. Singaram v. Kalyanam Subhadra,(1914) Mad WN 735. 64. Bhup Kaur v. Muhammadi, (1884) ILR 6 All 37; Vasudeo v. Bhau, (1897) ILR 21 Bom 528; Situl v. Luchmi, (1884) ILR 10 Cal 30; Kakerlapoody v. Vutsavoy, (1837) 2 MIA 1. 65. Venkatsubbaiah v. Juma Mosque, AIR 1941 Mad 666 [LNIND 1940 MAD 401]. 66. AIR 2005 SC 4397 [LNIND 2005 SC 819]; see also Ram Nath v. Baij Nath, AIR 2005 MP 229 [LNIND 2005 MP 232]. 67. AIR 2005 Raj 218. 68. Raj Kishore v. Prem Singh, AIR 2011 SC 382 [LNIND 2010 SC 1207]; Simrathmull v. Nanja Lingiah, AIR 1963 SC 1182 [LNIND 1962 SC 95]; Bhaskar Waman Joshi v. Narayan Rambilas Agarwal, AIR 1960 SC 301 [LNIND 1959 SC 195]; Pundit Chunchun Jha v. Sheikh Ibadat Ali, AIR 1954 SC 345 [LNIND 1954 SC 65]; Ramjan Khan v. Baba Raghunath Dass, AIR 1992 MP 22 [LNIND 1990 MP 205]; Bahadur v. Motiram, AIR 1972 Raj 250; see also P. Obayya v. AC Venkalappa, AIR 1974 Andh Pra 232 ; The proviso does not have a retrospective effect, see Debi Singh v. Jagdish Singh, AIR 1952 All 716 [LNIND 1952 ALL 28]. 69. Bishan Lal v. Banwari Lal, AIR 1939 All 713; Shambhu Singh v. Jagdish Bakshi, AIR 1941 Oudh 582. 70. Natesa Pathar v. Pukkirisamy Pathar, AIR 1997 Mad 105 [LNIND 1996 MAD 125]. 71. Amir Bee v. The Sub-Divisional Magistrate Sakaleshpur, AIR 1980 Kant 154 [LNIND 1979 KANT 184]. 72. Murugan v. Jairama Pillai, AIR 1974 Mad 311 [LNIND 1973 MAD 203]. 73. Bithika Dutta v. Bela Rani Bhattacharyya, AIR 1981 Cal 5 [LNIND 1980 CAL 194]. 74. Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 [LNIND 1999 SC 260]. 75. Santakumari v. Lakshmi Amma Janaki Amma, AIR 2000 SC 3009 [LNIND 2000 SC 1092]. 76. B. Jayashankarappa v. DS Gulwadi, AIR 2000 Kant 359 [LNIND 2000 KANT 5]. 77. The Amending Act of 1929 inserted the words ‘expressly or by implication binds himself in the Act. The fact that possession was not given does not alter the character of usufructary mortgage, see Khunni Lal v. Madna Mohan, (1908) 31 All 318; Harnath Singh v. Maiya Ambika Devi, AIR 1941 Pat 307; Ram Khilawan v. Ghulam Hussain, AIR 1933 Oudh 35; Modan Mohun v. Ashad Ally, (1884) ILR 10 Cal 68. The parties may agree that the possession would continue to be with the mortgagor as a lessee, see Mahomad Isaq Hussain v. Chedda Lal, AIR 1948 All 348. 78. Hastimal v. P Tej Raj Sharma, AIR 2007 SC 3246 [LNIND 2007 SC 1158]; The expression usufructary mortgage as understood in the context of The Transfer of Property Act, 1882, does not apply to the said expression as used in the Bihar Money Lenders Act, 1975, s. 12. 79. Usufructuary mortgages were known and prevalent in India and were called khai khalasi bandalaknama in Bengal, see Islam Chunder v. Sujan Bibi, (1871) 7 Beng LR 14; Duggubhogyam or kanom or otti in Madras, see Keshava v. Keshava, (1878) ILR 2 Mad 45; Sridevi v. Virarayan, (1899) ILR 22 Mad 350. A lekha mukhi mortgage in Punjab is a usufructary mortgage, see Karam Chand v. Shera, AIR 1931 Lah 498; Khandu Lal v. Fazal, (1920) ILR 1 Lah 89. 80. Lachhman v. Naina, AIR 1940 Lah 401; Mohamad Saeed v. Abdul Alim, AIR 1947 Lah 401. 81. Visvalinga v. Palaniappa, (1898) ILR 21 Mad 1; Tukaram v. Ramchand, (1902) ILR 26 Bom 252; Krishna v. Hari (1908) Bom LR 615; see also Shaik Idrus v. Abdul Rahiman, (1892) ILR 16 Bom 303; see also Vaddiparthi v. Appalanarasimhulu, AIR 1921 Mad 517 [LNIND 1921 MAD 106]; Hikmatullah v. Imam Ali, (1890) ILR 12 All 203, where the land was mortgaged for four years. 82. Ram Narain Singh v. Adindra Nath, AIR 1916 PC 119. 83. Lachhman v. Naina, AIR 1940 Lah 401; Mohamad Saeed v. Abdul Alim, AIR 1947 Lah 401; Sadashiv Abaji v. Vyankatrao, (1896) ILR 20 Bom 296; Chathu v. Kunjan, (1889) ILR 12 Mad 109; Ram Narain Singh v. Adhindra Nath, AIR 1916 PC 119.

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(IN) Poonam Pradhan Saxena : Property Law 84. Subarayya v. Subramanyan, AIR 1952 Mad 856 [LNIND 1951 MAD 374]. 85. Krishna Bhaichand v. Hari, (1908) 10 Bom LR 615 [LNIND 1908 BOM 55]; Mohammad Abdullah v. Mohammad Yasin, AIR 1933 Lah 151; Kashi Singh v. Sardar Singh, (1906) ILR 28 All 157. 86. Subraya Pai v. Subramania Pattai, AIR 1928 Mad 648 [LNIND 1928 MAD 8]; Manilal Ranchod v. Motibhai, (1911) ILR 35 Bom 288; see also Ramasami v. Sriniwas, (1916) ILR 39 Mad 389. 87. Pitambar Parkait v. Madhu Sudan, 6 IC 153; Udayan Pillai v. Senthivelu, (1896) ILR 19 Mad 411; Mahadaji v. Joti, (1892) 17 Bom 425; Sarajbashini Ghose v. Baijnath Pandey, 176 IC 892; Kangaya v. Kalimuthu, (1904) ILR 27 Mad 526 (FB); Indu Bala v. Monimala, (1955) AP 505; Chhathi Lal v. Bindeshwari Prasad, AIR 1929 Pat 605; Madhwa v. Venkata, (1903) ILR 26 Mad 662; Sivakami v. Gopala, (1894) ILR 17 Mad 131; Jag Sahu v. Ram Sakhi, AIR 1922 Pat 58; Dattambhat Rambhat v. Krishnabhat, (1910) ILR 34 Bom 462; Pargan Pandey v. Mahatam Mahto, (1907) 6 Cal LJ 143. 88. Girwar Singh v. Thakur Narain, (1887) ILR 14 Cal 730; Ramasami v. Samiyappanayakam, (1882) ILR 4 Mad 179. 89. Bachan Singh v. Waryan Singh, AIR 1961 Punj 477. 90. Indu v. Manimala, AIR 1955 Pat 505. 91. Akbar v. Mafijuddin, AIR 1942 Cal 55. 92. Isaq Hussain v. Sahu Chedda, AIR 1949 All 312. 93. Manilal v. Motibhai, (1911) ILR 35 Bom 288. 94. Where the property is in occupation of the tenants the mortgagor may direct the tenants to pay rent to the mortgagee, see Venkataranam v. Varahalia, AIR 1932 Mad 768 [LNIND 1932 MAD 117]; or the mortgagor may occupy the premises as the tenant of the mortgagee, see Raja Pertab Bahadur v. Gajadher, (1902) ILR 24 All 521; Feroz Shah v. Sohbat Khan, AIR 1933 PC 178; Kapildeo Narain Singh v. Deputy Collector Land Reforms, AIR 1985 Pat 183. 1.

Abdul Aziz v. M Maniyappa Setty, AIR 1989 SC 553 [LNIND 1988 SC 829]; Ram Adhar Singh v. Bansi, AIR 1987 SC 987 [LNIND 1987 SC 906]; Samharu v. Dharamraj Pandey, AIR 1970 All 350 [LNIND 1969 ALL 63].

2.

Ram Udhar v. Hari Chand, AIR 1958 Punj 140; Bakshi Ram v. Buta Singh, AIR 1957 Punj 57; Asa Ram v. Kishan Chand, AIR 1930 Lah 386.

3.

Manu Pande v. Sukhalia, AIR 1958 Pat 79; Ram Narain Lal v. Murli Dhar, AIR 1920 Pat 67.

4.

See The Transfer of Property Act, 1882, s. 58(d).

5.

Raja Pertab Bahadur v. Gajadhar, (1902) 24 All 521.

6.

Venkateshwara v. Kesava, (1879) ILR 2 Mad 187; Vaneri v. Patanattil, (1865) 2 Mad HC 382; Sadashiv v. Vyankatrao, (1896) ILR 20 Bom 296.

7.

SB Abdul Aziz v. M. Maniayappa Setty, AIR 1989 SC 553 [LNIND 1988 SC 829].

8.

See The Transfer of Property Act, 1882, s. 67(a).

9.

Pitambar v. Madhu Sudan, 6 IC 153; Jag Sahu v. Ram Sakhi, AIR 1922 Pat 167; Ahobala v. Kalimuthu, AIR 1962 Mad 308 [LNIND 1961 MAD 257]; Pargan v. Mahatam, (1907) 6 Cal LJ 143; Dattambhat Rambhat v. Krishnabhatt, (1910) ILR 34 Bom 462.

10. Gulab Chand v. Ram Coomer, AIR 1941 Pat 296; Badhun v. Ramanugol, AIR 1949 Pat 78. 11. Abdul Bhai v. Kashi, (1887) ILR 11 Bom 462; Ramautar v. Batuk Bihari, AIR 1952 Pepsu 56. 12. Mahabir v. Harbans, AIR 1952 SC 205 [LNIND 1952 SC 26]; Bengal Indigo Co. v. Mohunt Raghubar Das, (1896) 24 Cal 272. 13. Tulsi Ram v. Muna Koer, AIR 1937 Oudh 146. 14. Abdul Rahim v. Raghunath, AIR 1931 Pat 22; Mathuralal v. Keshar Bai, AIR 1971 SC 310 [LNIND 1970 SC 57]; Lalchand v. Nenuram, AIR 1963 Raj 69 [LNIND 1962 RAJ 20]; Ganpat Turi v. Mohammad Ashraf Ali, AIR 1961 Pat 133; Asa Ram v. Kishan Chand, AIR 1930 Lah 386; Uttam Chandra v. Raj Krishna, (1920) ILR 47 Cal 377; Chimman Lal v. Bahadur, (1901) ILR 23 All 338. 15. (1903) ILR 25 All 115. 16. Mahadeo v. Rameshwar, AIR 1935 All 150; Kammara Peda v. Kararna Chennapa, (1915) 28 Mad LJ 303; Chotey Lal v. Mohanian, AIR 1930 All 375. 17. Board of Revenue v. Simpson, AIR 1958 Mad 508 [LNIND 1958 MAD 211]. 18. Kesho Prasad v. Chandrika Prasad, AIR 1923 Pat 122; Hussain Ali Shah v. Sardar Ali Shah, AIR 1933 Lah 786; Tuka Ram v. Ramchand (1902) ILR 26 Bom 252; Mahmud Muse v. Bagas, (1908) ILR 32 Bom 569; Rutton Singh v. Greedharee, (1868) 8 WR 310; Chennapatnam v. Tadakamalla, (1904) ILR 27 Mad 86; Sheo Golam Singh v. Roy Dinkur, (1869) 12 WR 215; Ram Doolary v. Thacoor, (1878) 4 Cal 61; Bengal Indigo Co. v. Mohunt Raghubar Das, (1896) 24 Cal 272.

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(IN) Poonam Pradhan Saxena : Property Law 19. Ramdhan v. Bankey Behari, AIR 1958 SC 941 [LNIND 1958 SC 84]; Rameshwar Narain v. Pani Ram, AIR 1934 Pat 217; Immani Seshayya v. Dronamraju, AIR 1930 Mad 160 [LNIND 1929 MAD 11]. 20. Chhathi Lal v. Bindeshwari Prasad, AIR 1929 Pat 605. 21. Kameshwar Singh v. State of Bihar, AIR 1959 SC 1303 [LNIND 1959 SC 124]; Mahesh Bhagat v. Ram Baran, AIR 1968 SC 1466 [LNIND 1968 SC 108]. 22. Keshav Hindalekar v. Nazar Sheriyar Mazada, AIR 1983 Kant 19 [LNIND 1982 KANT 77]; Basant Lal v. Tapeshri, (1881) ILR 3 All 1; Gopal v. Desai, (1882) ILR 6 Bom 674. 23. Lakshmi v. Narayani, AIR 1967 SC 876 [LNIND 1966 SC 180]. 24. See Mangala v. Puthiyaveethil, AIR 1971 SC 1575 [LNIND 1971 SC 83], wherein it was held that if the money advanced is a substantial proportion of the value of the property the transaction is a mortgage. 25. Baraboni Coal Concern v. Deb Prasanna Mukherjee, AIR 1934 PC 119. 26. Natha Singh v. Chuni Lal, (1918) PR 69. 27. Lalchand v. Nenu Ram, AIR 1963 Raj 69 [LNIND 1962 RAJ 20]; Khuda Baksh v. Alimunnissa, (1905) ILR 27 All 313; Karamat Ali Khan v. Ganeshi Lal, AIR 1927 All 552; Kishun Dayal v. Mahabir, (1920) 5 Pat LJ 492; Madhwa v. Venkata, (1903) ILR 26 Mad 662; Chimman Lal v. Bahadur, (1901) ILR 23 All 338; Imdad Hasan v. Badra Prasad, (1898) ILR 20 All 401; Altaf Ali v. Lalta Prasad, (1897) ILR 19 All 496; Meenakshi Sundara v. Ratnaswami, (1918) ILR 41 Mad 959. 28. There is a transfer of ownership to the mortgagee with a covenant to repay the debt on a certain date pursuant to which the mortgagee re transfers the property back to the mortgagor. The options as regards earlier payment or extension of time for repayment are matters of grace whio not affect the undertaking to repay at a certain date, see Raja Janki Nath v. Syed Asad Raza, AIR 1936 Pat 211; see also Mahammad Sanoowar Ali v. Asman Ali Majumdar, AIR 1989 Gau 71 [LNIND 1988 GAU 48], wherein the repayment was to be made within five years was extended to eight years, and it was held that this did not constitute a binding to repay the debt on a certain date. 29. The phrase that ‘the mortgagee will retransfer back the property to the mortgagor declares that such a mortgage would be absolute were it not for the proviso, see Ram Kinkar v. Satyacharan, AIR 1939 PC 14. 30. Narayan v. Venkataramma, (1902) ILR 25 Mad 220. 31. The definition of an English mortgage must be read subject to the definition of mortgage under s. 58(a) of the TP Act, and consequently it can hardly be regarded as a transfer of an entire estate of the mortgagor to the mortgagee. Thus an assignment by way of an English mortgage executed by a lessee does not pass the whole of the estate from the mortgagor to the mortgagee, see Falakrishna Pal v. Jagannatha, AIR 1932 Cal 775; Whatever form is used the only thing that is transferred is the interest and that is subject to the right of redemption, see Ram Kinkar v. Satyacharan, AIR 1939 PC 14; Cohen v. Baidyanath, AIR 1936 Cal 646; Janakinath v. Asad, AIR 1936 Pat 211; see also Bengal National Bank v. Janaki Nath Roy, AIR 1927 Cal 725 wherein it was held that a mortgage by a lessee by way of an English mortgage operates as an absolute assignment of the lease, and establishes a privity of estate between the assignee and the lessor so as to entitle the lessor to claim rent from the assignee. 32. Jagdamba Loan Co. Ltd. v. Raja Shiba Prasad, AIR 1941 PC 36. 33. Tana Peena v. Mammakanta Kath, 34 IC 24; Lalla Kanhoo Lal v. Manki, (1901) 6 Cal WN 601. 34. Latchmiput Singh v. Land Mortgage Bank, (1887) ILR 14 Cal 464; Rukmini Kanta v. Baldeo Das, AIR 1925 Cal 77. 35. Raj Kishore v. Prem Singh, AIR 2011 SC 382 [LNIND 2010 SC 1207]. 36. In the towns of Calcutta Madras and Bombay and in any other town which the state government concerned may, by notification in the Official Gazette, specify in this behalf. 37. The intention should be that the deed should be a security for the debt, see Kevaldas v. Chhotubhai, AIR 1955 Bom 454 [LNIND 1955 BOM 41]; Shailesh Textiles Industries v. Chief Controlling Revenue Authority, AIR 1994 Gau 153; Rashtrothana Parishat v. State of Karnataka & ors., AIR 1992 Kant 388 [LNIND 1991 KANT 113]. 38. The triple requisites are a debt; a deposit of title deeds and an intention to create security, see Amulya Gopal v. United Industrial Bank Ltd., AIR 1981 Cal 404 [LNIND 1980 CAL 169]. 39. Under English law it is called an equitable mortgage, but the law in India does not distinguish between legal and equitable estate, see Rani Chhatra Kumari v. Mohan Bikram, AIR 1931 PC 196. 40. Rosy George v. State Bank of India, AIR 1993 Ker 184 [LNIND 1992 KER 208]. 41. Imperial Bank of India v. U. Rai Gyaw Thu, AIR 1923 PC 211; Gokul Dass v. Eastern Mortgage and Agency Co., (1906) 33 Cal 410; see also KJ Nathan v. SV Maruthy Reddy, AIR 1965 SC 430 [LNIND 1964 SC 35]. 42. Marcar v. Sigg, (1886) ILR 2 Mad 239 PC. 43. Himalaya Bank v. Quarry, (1895) ILR 17 All 252; United Bank v. Lekha Ram, AIR 1965 SC 1591 [LNIND 1965 SC 19]; Girendro Coomar v. Kumud, (1898) ILR 25 Cal 611.

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(IN) Poonam Pradhan Saxena : Property Law 44. Roderiques v. Ramaswami Chettiar, (1917) ILR 40 Mad 783. 45. See The Transfer of Property Act, 1882, s. 58(f). 46. Notification dated 22 May 1976; see also State Bank of Patiala v. Durga Oil and Flour Mills, AIR 1984 NOC 22 (HP). 47. Indian Cotton Company v. Hari Poonjoo, AIR 1937 Bom 39; Surajmull Shroff v. Gopeeram, AIR 1932 Cal 832. What constitutes the transaction is the delivery with the intention of creating a security. Thus where the physical delivery takes place outside the notified town but the intention to create the mortgage is formed after the deeds are in one of the notified towns, the provisions will apply see KJ Nathan v. SV Maruthy Reddy, AIR 1965 SC 430 [LNIND 1964 SC 35]. 48. State Bank of Mysore v. SM Essence Distilleries Pvt. Ltd., AIR 1993 Kant 359 [LNIND 1993 KANT 87]. 49. Allahabad Bank, Trivandrum v. Ley Brothers, AIR 2010 Ker 90 [LNIND 2010 KER 61]; Nirmala Baldwa v. Government of AP, AIR 2011 AP 26 [LNIND 2010 AP 640]. 50. KJ Nathan v. SV Maruthy Reddy, AIR 1965 SC 430 [LNIND 1964 SC 35]. 51. Surendra Mohan v. Mohendra Nath, AIR 1932 Cal 589; Bhupendra v. Wajinussa, (1917) 2 Pat LJ 293; Elizabeth May Toomay v. Bhupendra Bose, AIR 1928 Pat 304. 52. VERMAR Cheetiyar Firm v. Ma Joo Tean, AIR 1933 Rang 299. 53. KL Nathan v. SV Maruthy Reddy, AIR 1965 SC 430 [LNIND 1964 SC 35]. 54. Amulya Gopal v. United Industrial Bank Ltd., AIR 1981 Cal 404 [LNIND 1980 CAL 169]. 55. Bhupendra v. Wajinussa, (1917) 2 Pat LJ 293. 56. State Bank of India v. Zeenath X Ray & ECG Clinic, AIR 2007 (NOC) 2315 57. Indian Bank v. Punjab National Bank, AIR 2010 Mad 84 [LNIND 2009 MAD 2336]. 58. Official Assignee v. Badri Narayan, AIR 1925 Mad 723 [LNIND 1924 MAD 545]; see also Nageshwara v. Srinivasa, AIR 1926 Mad 743 [LNIND 1925 MAD 454], wherein it was held that though the patta of the land would normally constitute a title, but it will depend on the circumstances under which it is issued. 59. Angu Pillai v. MSM Kasivishwanthan Chettiar, AIR 1974 Mad 16 [LNIND 1972 MAD 198]. 60. Gokul Das v. Eastern Mortgage and Agency Co., (1906) ILR 33 Cal 410. 61. Ma Joo Tean v. Ma Thein Nyun, AIR 1932 Rang 185; VERMAR Chettiyar Firm v. Ma Joo Tean, AIR 1933 Rang 299. 62. Syndicate Bank v. Modern Tile and Clay Works, (1980) Ker LT 550. 63. Stewart v. Bank of Upper India, (1916) PR 31, 34 IC 937. 64. C. Assiamma v. State Bank of Mysore, AIR 1990 Ker 157. 65. Boda Narayan v. Balluri, (1977) 2 Andr WR 480. 66. Gun Malla Rajgarahia v. Canara Bank, AIR 1999 Del 243 [LNIND 1998 DEL 845]. 67. Ganapat v. Adarji, (1877) 3 Bom 312; Beharam v. Sorabji, (1914) ILR 38 Bom 372; Miller v. Babu Madho Das, (1896) ILR 19 All 76. 68. Jethibai v. Putlibai, (1912) 14 Bom LR 1020; Saradindu v. Amiya Kumar, AIR 1977 Cal 343 [LNIND 1977 CAL 38]. 69. Manoj Kumar v. Nabadrup, 82 Cal WN 166. 70. Heng Moh v. Urn Saw Yean, AIR 1923 PC 87. 71. Jaitha Bhima v. Haji Abdul, (1886) ILR 10 Bom 634; Madras Deposit Co. v. Oonamalai, (1893) 18 Mad 29; Norris v. Wilkinson, (1806) 12 Ves 192. 72. Ishwar Das v. Dhanang Singh, AIR 1985 Del 83 [LNIND 1983 DEL 287]. 73. Bhuban Mohan v. Co-operative Hindustan Bank, AIR 1925 Cal 973; Vadamalai v. Subramania, AIR 1923 Mad 262; Sham Lal v. Punjab National Bank, AIR 1961 Punj 81; Inder Sain v. Mohamad Raza, AIR 1962 Mad 258 [LNIND 1960 MAD 81]; Binapani v. Rabindranath Sarkar, AIR 1959 Cal 213 [LNIND 1958 CAL 199]; Chettayar Firm v. Administrator General of Bengal, AIR 1933 Rang 307; Tyabali v. Parbatibai, AIR 1932 Sau 73; Dwarkadas v. New Bank of India, AIR 1958 Punj 218; Ramakrishna v. Kesavalu, AIR 1927 Mad 1145 [LNIND 1927 MAD 116]; Jaimal Singh v. Peoples Bank of Northern India, AIR 1933 Pesh 35; Motiram v. Bharat National Bank, AIR 1921 Lah 274; Esther v. Marthu, (1917) 25 Cal LJ 160; Haripada v. Anath Nath, (1918) 22 Cal WN 758; Surendra Mohan v. Mohendra Nath, AIR 1932 Cal 589; Central Bank v. Jawahir Singh, AIR 1936 Lah 65; Rangabati v. United Bank of India, (1961) AP 158; Rajamma v. Mahant Krishnananelgeri, AIR 1973 Mys 310. 74. Allahabad Bank, Trivandrum v. Ley Brothers, AIR 2010 Ker 90 [LNIND 2010 KER 61]; Kakraparthy Bhavanaravana v. S. Venkataratnam, AIR 1971 AP 359 [LNIND 1970 AP 45]; Kedarnath v. Harshanker, AIR 1938 Cal 308; National Bank of India v. Nazir Co., AIR 1932 Bom 401.

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(IN) Poonam Pradhan Saxena : Property Law 75. Pranjivandas Mehta v. Chan Ma Phee, (1916) ILR 43 Cal 895; Subramaniam v. Luchman, AIR 1923 PC 50; Kshetranath v. Harsukhdas, AIR 1927 Cal 538; Chunnilal v. Vithaldas, AIR 1922 Bom 440. 76. Obia Sundarachariar v. Narayanna Aiyyar, AIR 1931 PC 36. The necessity of registration depends upon the construction of the memorandum in the light of surrounding circumstances; see Ebrahim Hazi v. Official Trustee, AIR 1937 Cal 741; Ram Ratan v. Sew Kumari, AIR 1938 Cal 823; Ram Swarup v. Shiv Dayal, AIR 1940 Lah 285; see also Kedarnath Dutt v. Shamloll Khetty, (1873) 11 Beng LR 405, wherein an endorsement on the promissory note was held to be analogous to a recital of the fact of deposit and the non-registered document was held to be creating a valid equitable mortgage. 77. Hubert Pyoli v. SK Sivadasan, AIR 1998 Ker 344. 78. HG Najappa v. MFC Industries Pvt. Ltd., AIR 1987 Mad 108 [LNIND 1986 MAD 25]; Rachpal Maharaj v. Bhagwan Das Daruka, AIR 1950 SC 272 [LNIND 1950 SC 19]; State Bank of Mysore v. SM Essence Distilleries Pvt. Ltd., AIR 1993 Kant 359 [LNIND 1993 KANT 87]; Chitalia Bros v. South Indian Bank, AIR 1988 Kant 59 [LNIND 1987 KANT 40]; United Bank of India v. Lekh Ram, AIR 1965 SC 1591 [LNIND 1965 SC 19]. 79. Joseph v. Michael, AIR 2000 Ker 240 [LNIND 2000 KER 96]. 80. Nageswara v. Sriniwasa, AIR 1926 Mad 743 [LNIND 1925 MAD 454]; Krishnayya v. Ponnuswami, AIR 1924 Mad 547 [LNIND 1923 MAD 314]; Indian Bank v. AS Rao, AIR 1971 AP 287 [LNIND 1970 AP 59]; Shailendranath v. Hede Kaze Mane, AIR 1932 Cal 356; Muthuchetty v. Kothandaramaswami, (1916) 31 Mad LJ 347; Behram v. Sorabji, (1914) ILR 38 Bom 372; Ganpat v. Adarji, (1879) ILR 3 Bom 312. 81. Elumalai v. Balakrishna, AIR 1922 Mad 344 [LNIND 1921 MAD 65]. 82. Hatika v. Puthiyapurayil Padmanabhan, AIR 1994 Ker 141 [LNIND 1993 KER 397]; Yashwant v. Vithal, (1897) ILR 21 Bom 267; Amarchand v. Killa Morar, (1903) ILR 27 Bom 600; Motiram v. Vitai, (1889) ILR 13 Bom 90. 83. Nadachi Ammal v. Narayana Nadar, AIR 1955 Tr & Coch 207; Chadumarai v. Rani Navli, AIR 1943 All 337; Mir Singh v. Raghuvir Singh, AIR 1939 All 615; Suresh Chandra v. Jadas Chandra, AIR 1940 Cal 372; Idichandi Mathai v. Narayanan Unithan, AIR 1962 Ker 27 [LNIND 1960 KER 299]. An apemartham is redeemable for the market value of the land at the time of redemption; see Shekari v. Mangalom, (1876) ILR 1 Mad 57. 84. Kanna Karup v. Sankara, AIR 1921 Mad 243 [LNIND 1920 MAD 116]. 85. Akbarali v. Mafijaddin, AIR 1942 Cal 55; Narsingh Partab v. Mohammad Yaqub, AIR 1929 PC 139; Amarchand v. Killa Morar, (1903) ILR 27 Bom 600; Ramdayal v. Bhanwarlal, AIR 1973 Raj 173 [LNIND 1971 RAJ 24]; Kashi Ram v. Sardar Singh, (1906) ILR 28 All 157; Ram Lal v. Genda, AIR 1924 All 326; Abdullah v. Yasin, AIR 1933 Lah 151. A personal covenant sometimes has an implied right of sale, see Pitambar Purkait v. Madhu Sudan, 6 IC 153; Sivakami v. Gopala, (1894) ILR 17 Mad 131; Srinivasa v. Radhakrishnam (1915) ILR 38 Mad 667; Ramayya v. Garuva, (1891) ILR 14 Mad 232; see also Madhwa v. Venkata, (1903) ILR 26 Mad 662; Udayana Pillai v. Senthivelu, (1888) All WN 171. 86. Panaganti Ramarayanimgar v. Maharaja of Venkatagiri, AIR 1927 PC 32; Jawahir Singh v. Someshwar, (1906) ILR 28 All 225; Bhola Das v. Bishanath, (1912) 10 All LJ 162. 87. Ujagar Ali v. Lokendra Singh, AIR 1941 All 169; in such cases a suit for sale is always permissible; see Govindoo v. Rmachunder, AIR 1957 AP 511; Sant Ram v. Bhagwat Das, AIR 1958 Punj 309; Lalta Prasad v. Hair Lal, 16 OC 90; Mohammad Sayeed v. Abdul Alim, AIR 1947 Lah 40; Ram Lochan Prasad v. Ram Raji, AIR 1934 Oudh 255; Deputy Commr v. Lala Rampal Singh, (1885) ILR 11 Cal 237; Govinda v. Narain, AIR 1956 Hyd 107. 88. Munni Lal v. Phuddi Singh, AIR 1987 All 155 [LNIND 1986 ALL 89]; Jugal Kishore v. Ram Sahai, (1886) All WN 212; Nanu v. Raman, (1893) ILR 16 Mad 335; Jafar Hussain v. Ranjit Singh, (1899) ILR 21 All 4; Phul Kuar v. Murli Dhar, (1879) ILR 2 All 527; Dattambhat v. Krishnabhatt, (1910) ILR 34 Bom 462; Rahimuddin v. Nayan Chand, AIR 1950 Assam 18; Janki Das v. Luxminarayan, AIR 1957 Raj 32 [LNIND 1956 RAJ 59]; Abohala Sastriar v. Kalimurthu, AIR 1962 Mad 308 [LNIND 1961 MAD 257]; Ruplaswami v. Girdharilal, AIR 1950 Assam 19; U San v. Maung Sein, AIR 1937 Rang 151; Kangaya v. Kalimuhtu, (1904) ILR 27 Mad 526 (FB); Sivakami v. Gopala, (1894) ILR 17 Mad 131; Where the right is with a fixed time period, see Gajadhar v. Sibananda, AIR 1924 Cal 592. 89. Visvalinga v. Palaniappa, (1898) ILR 21 Mad 1; Hikamatullah v. Imam Ali, (1890) ILR 12 All 203; Tuka Ram v. Ram Chand, (1902) ILR 26 Bom 252. 90. Solema Bibi v. Hafiz Mohammad, AIR 1927 Cal 836; Sita Nath v. Thakurdas, (1919) ILR 46 Cal 448. 91. Vaddiparthi v. Appalanarasimhulu, AIR 1921 Mad 517 [LNIND 1921 MAD 106]; Girwar Singh v. Thakur Narian, (1887) ILR 14 Cal 730; Ramaswami v. Samiyappanayakan, (1882) ILR 4 Mad 179; Mohini Mohan v. Sarat, AIR 1925 Cal 862; Hakeem Patte Muhammad v. Shaik Davood, (1916) ILR 39 Mad 1010; A condition of compulsory sale in the event of default in payment is void as a clog on equity of redemption, see Chella Kutti v. Vengappa, AIR 1925 Mad 366; Kandula Venkiah v. Donga Pallaya, (1920) ILR 43 Mad 589; Pandiyan v. Vellayappa, (1917) 33 Mad LJ 316. 1.

Venkita Subramani Aiyar v. Vadasseri Karnavan, AIR 1956 Mad 434 [LNIND 1955 MAD 253]; Chinaman v. Dulari, (1910) 7 All LJ 1087; Ram Khilawan v. Ghulam Husain, AIR 1933 Oudh 35; Fida Ali v. Ismailji, (1909) 6 Nag LR 20.

2.

Madho Rao v. Gulam Mohiuddin, AIR 1919 PC 121.

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(IN) Poonam Pradhan Saxena : Property Law 3.

Gupta v. Administrator General, AIR 1928 Rang 16.

4.

Vijay Kumar v. Ram Prasad, AIR 160 Bom 411; Sunder Devi v. Thakur Baldeo, 18 OC 10.

5.

Where the principal money secured is less than Rs. 100, a mortgage may be effected either by a registered instrument signed or attested as provided here or by delivery of the property. See The Transfer of Property Act, 1882, s. 59. The rule does not apply to a simple mortgage where irrespective of the loan amount it must always be in writing,Narasaya v. Guruvappa, (1878) ILR 1 Mad 378; and attested, see Maung Shew Bye v. Chawari Mutu, 12 IC 25.

6.

The rule has no application to the mortgage of movables which do not require attestation or registration. See Jati Kar v. Mukunda Deb, (1912) ILR 39 Cal 227; Vasudevan Anana v. Kutti Amma Mangat, AIR 1941 Mad 805.

7.

The term registered was introduced in the Act in 1904 by Act 6 of 1904.

8.

An oral usufructary mortgage for more than Rs. 100 is invalid, see Ram Prasad v. Kalyani, AIR 1973 Raj 208 [LNIND 1972 RAJ 1] and no suit for redemption of such mortgage or for recovery of possession can lie, see Sonua Kuhar v. Chamtu Pahan, AIR 1953 Pat 134; Ramulu v. G. Ramaswamy, AIR 1971 Ori 58 [LNIND 1969 ORI 21]; Kameshwar Prasad v. Meghun Garain, AIR 1951 Pat 137.

9.

Kapileshwar Sahoo v. Rama Chandra Sahoo, AIR 1996 Ori 7 [LNIND 1995 ORI 31]; see The Transfer of Property Act, 1882, s. 59. The section does not apply to the state of Sikkim, see Bishnu Kala Karki Dholi v. Bishnu Maya Durjeeni, AIR 1980 Sikkim 1; but has been extended to the State of Punjab and Haryana with effect from 6 June, 1968 and 5 August, 1967 respectively. If the property is mortgaged in an area where the rule does not apply an oral contract is valid, see Iqbal Begum v. Uttam Chand, AIR 1947 Lah 324; Ram Nath v. Kamidan, AIR 1963 Raj 116 [LNIND 1962 RAJ 92]; Chuttan Lal v. Punjab National Bank, AIR 1972 Raj 159 [LNIND 1971 RAJ 60]; see also Satar v. Mahantu, AIR 1959 J&K 64, wherein it was held that the rule does not apply to contracts executed before the enactment of the Act. Before the passing of the Act mortgage were made by delivery of possession of property, see Ahmed Raza v. Abid Hussain, (1916) ILR 38 All 1.

10. Kunhi Amma v. Ahmed, (1900) ILR 23 Mad 105; Jodh Ram v. Lajja Ram, (1913) 11 All LJ 729; Nan v. Anant, (1878) ILR 2 Bom 353; Habibullah v. Nakched Rai, (1883) ILR 5 All 447; Ram Doolary v. Thacoor, (1878) 4 Cal 61; Panchi Das v. Ahmedullah, (1883) 12 Cal LR 444. 11. Balkrishna v. Ranganath, AIR 1951 Nag 171. 12. Bishen Singh v. Sheodari Das, AIR 1947 Pat 110. 13. Lal Bahdur Singh v. Rameshwar Prasad, AIR 1927 Oudh 510. 14. Sadanand Pal v. Emperor, (1905) 32 Cal 550. 15. Govind v. Bhau,(1916) 41 Bom 384. 16. Nirmal Chunder v. Saratmoni, (1898) ILR 25 Cal 911, the case related to a testament. 17. Tarachand v. Kesrimal, AIR 1973 Raj 123; Collector of Mirzapur v. Bhagwan Prasad, (1913) ILR 35 All 104; Param Hans v. Randhir Singh, (1916) ILR 38 All 461; Pran Nath v. Jadu Nath, (1905) ILR 32 Cal 729; Samoo Palter v. Abdul Sammad, (1908) ILR 31 Mad 337; Anantram v. Yusuffi,(1916) 31 Ad LJ 133; Royzuddi v. Kali Nath, (1906) ILR 33 Cal 985; Narayan v. Lakshmandas, (1905) 7 Bom LR 934; Debendra v. Bihari,(1911) 16 Cal WN 1075; Sreemutty Rani v. Rajah Sri Nath,(1896) 1 Cal WN 81; Khem Chand v. Malloo,(1915) 10 Nag LR 81; Tofaluddi v. Mahar Ali, (1899) ILR 26 Cal 78. 18. Pulaka Veetil Muthalakulangara v. Thiruthipalli, (1909) ILR 32 Mad 410; Mathura Prasad v. Cheddi Lal, (1915) 13 All LJ 553; Sama Rao v. Vannajee, AIR 1923 Mad 36; Zamindar of Polavaram v. Maharaja of Pittapuram, AIR 1931 Mad 140 [LNIND 1930 MAD 103]; Sada Kavaur v. Tedepally, (1907) ILR 30 Mad 284; Dhana Mohammad v. Nastullah, AIR 1926 Cal 637; Mahadeo Prasad v. Gairaj Singh, 34 IC 397. 19. Ram Narayan Singh v. Adindra Nath, AIR 1916 PC 119. 20. Veerappa v. Chinna Muthu, (1907) ILR 30 Mad 251; Shib Chandra v. Gour Chandra, AIR 1922 Cal 160. 21. Rajani Kanta Barui v. Bonbehari Sarkar, AIR 1952 Cal 7 [LNIND 1951 CAL 197]; Chettyar Firm v. U. Htaw, AIR 1933 Rang 6; see also Maung Po Gyi v. Maung Min Din, AIR 1927 Rang 233; Mushrafi Begum v. Lala Kundan Lal, AIR 1933 Oudh 365; Hira Bibi v. Ram Hari Lal, AIR 1925 PC 203. 22. See Dhiren Bailung v. Bhutuki, AIR 1972 Gau 44; see ‘Attestation, ch1. 23. Muthiah Chettiar v. Official Receiver Tinnevelley, AIR 1933 Mad 185 [LNIND 1932 MAD 226]. 24. See Nabadweepchandra Das v. Lokenath Roy, AIR 1933 Cal 212, wherein it was held that if the property is attached after date of execution of mortgage but before date of registration mortgage is valid against claims enforceable under attachment. 25. Visvanatha v. Fatima, AIR 1952 Hyd 5; Maung Tun Ya v. Maung Aung, AIR 1925 Rang 1; Somasundaram Chettiar v. Nachiappa Chettiar, AIR 1925 Rang 55. 26. Lingappa v. Danappa, AIR 1947 Bom 206. 27. Raghunath Singh v. Kishanlal, AIR 1986 MP 215 [LNIND 1985 MP 129].

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(IN) Poonam Pradhan Saxena : Property Law 28. Lachmipat v. Mirza,(1869) 4 Beng LR 18; Hari Chand v. Kartar Singh, AIR 1952 Pepsu 56; Mon Koch v. Guneshwari, AIR 1968 Assam and Nag 10; Chhotibui Daulatram v. Mansukhlal, AIR 1941 Bom 1; Gomji v. Subbarayappa, (1892) ILR 15 Mad 253; Khudda Mal v. Kunji, (1881) PLR 80; Basant Mal v. Jawahir Singh, AIR 1925 Lah 356; Jagannathan Pillai v. Official Assignee, AIR 1931 Mad 124 [LNIND 1930 MAD 110]; Rama Rao v. Vedayya, AIR 1923 Mad 447; Tukaram v. Khandoji, (1869) 6 Bom HC 134 OCJ. 29. Muttongency v. Ram Narain, (1879) ILR 4 Cal 83. 30. Varatha Filial v. Jeevarathammal,(1919) 43 Mad 244. 31. Ma Mo E v. Ma Kun Hlaing, AIR 1941 Rang 230; Ma Kyi v. Mg Thon, AIR 1935 Rang 230. 32. Appanna v. Venkataswami, AIR 1924 Mad 292. 33. Rajjulal v. Jalauddin, AIR 1950 AP 51. 34. RR Gupta v. Jamil, AIR 2004 SC 3856 [LNIND 2004 SC 673]. 35. Jeet Ram v. Ganga Phal, AIR 2010 (NOC) 834 (P&H) 36. Joginee Mohan v. Bhoot Nath, (1904) 29 Cal 654. 37. Narasamma v. Subbarayudu, (1895) ILR 18 Mad 364; Brij Nath v. Sheo Sahoy, (1891) ILR 18 Cal 556; Nahar Lal v. Baij Nath, AIR 1928 Cal 385. 38. Harendra Lal v. Hari Dasi, AIR 1914 PC 67; Kedar v. Bidhu, AIR 1924 Cal 348; Biswanath v. Chandra, AIR 1921 PC 8; Akshayalingam v. Ramayya, AIR 1929 Mad 426 [LNIND 1928 MAD 248]; Bisal Singh v. Roshan Lal, AIR 1924 All 373. 39. Dottie Karan v. Lachmi Prasad, AIR 1931 PC 52. 40. Inuganti Venkatarama Rao v. Sobhanadri Appa Rao, AIR 1936 PC 91. 41. Muhammad Sidiq v. Muhammad Nasirullah, (1899) ILR 21 All 23. 42. Midnapore Zamindary v. Saradindu Mukhopahya, AIR 1948 Cal 250. 43. Subject to his satisfying certain conditions, see Kali Narayani v. Neelakantan Nanu, AIR 1991 Ker 66 [LNIND 1990 KER 161]. 44. A transferee of mortgagee is not bound by the personal covenant of the mortgagor, see Jamna Das v. Ram Autar, (1912) ILR 34 All 63; Manubhai v. Trikamal, AIR 1960 Bom 247 [LNIND 1958 BOM 66]. See however, Kishan Lal v. Gauri Shanker, AIR 1949 Ajmer 52, wherein it was held that a subsequent purchaser of the mortgagor was bound by the mortgage to the extent it was binding on the mortgagor himself. 45. Calcutta Properties Ltd. v. SN Chakraborty, AIR 1988 Cal 131 [LNIND 1986 CAL 253]; see however, Parmeshwara v. Krishna, AIR 1953 Tr & Coch 473. 46. Sarojni Prabhu v. Papikutty Adiesian, AIR 2007 Ker 44 [LNIND 2006 KER 703]; Harbans v. Om Prakash, (2006) 1 SCC 129; Rukmini Ammal v. Jagdesha Gounder, (2006) 1 SCC 65; Prabhakaran v. Azagiri Pillai, AIR 2006 SC 1567 [LNIND 2006 SC 187]; Mangal Prasad Tamoli v. Narvedshwar Mishra, (2005) 3 SCC 422; Khirati Lal v. Janak Raj, AIR 2004 P&H 29; Chandalal Keshwant v. Balwant Singh, AIR 2006 All 47; Yahsodaraih v. S B Puyidwaru, AIR 2006 Kant 123 [LNIND 2005 KANT 623]; Sarmus Sab v. Ismain Sab, AIR 2006 Kant 107 [LNIND 2005 KANT 593]; Shakeena v. Bank of India, AIR 2008 Mad 10 [LNIND 2007 BMM 175]; Ram Krishan Lal v. Manohar Lal Gupta, AIR 2008 (NOC) 845 (Pat); Durga Prasad v. Kallaram, AIR 2005 MP 224 [LNIND 2005 MP 94]; Subbarao v. Mattapalli Raju, AIR 1950 FC 1, 6 (1949) FCR 484. 47. Poulose v. State Bank of Travancore, AIR 1989 Ker 79. 48. Seth Gangadhar v. Shankerlal, AIR 1958 SC 770 [LNIND 1958 SC 52]; Sher Khan v. Seth Swami Dayal, AIR 1922 PC 17; Ramkinkar v. Satya Charan, AIR 1939 PC 14, 17. 49. Teju v. Bhadar, AIR 1987 HP 25 [LNIND 1986 HP 29], 31. 50. Raghunath v. Hansraj, AIR 1934 PC 205. 51. Dadoo v. Venkatarao, AIR 1954 Nag 84. 52. Ambu Nair v. Kelu Nair, AIR 1933 PC 167. 53. New Kenilworth Hotels Pvt. Ltd. v. Ashoka Industries Ltd., (1955) 1 SCC 161. 54. Achamma Cyriac v. Kerela Financial Corpn., AIR 1997 Ker 75 [LNIND 1996 KER 422]. 55. Jaimal v. State of HP, AIR 2010 HP 7 [LNIND 2009 HP 61]. 56. (2003) 3 SCC 614 [LNIND 2003 SC 50]. 57. Prithi Nath v. Suraj Ahir, AIR 1963 SC 1041 [LNIND 1962 SC 505]; Kunjayyamma v. Kunchali, AIR 1970 Ker 289 [LNIND 1969 KER 124]. 58. Parmeswaran Govindan v. Krishnan Bhaskaran, AIR 1992 SC 1135 [LNIND 1992 SC 135].

Page 63 of 73

(IN) Poonam Pradhan Saxena : Property Law 59. Harish Chander v. Bansi Dhar, AIR 1965 SC 1738 [LNIND 1965 SC 159]. 60. See The Transfer of Property Act, 1882, s. 91; see also Larho Devi v. Chiranji Lal, AIR 1984 NOC 45 (Patna), wherein it was held that heir of a mortgagor is necessary party in a suit for redemption filed by others. 61. The burden of proof is on the mortgagor or any one claiming under him to substantiate his case by some prima facie evidence, see Raja Kishen Dutt v. Narender, 3 IA 85, the case deals with a situation when the mortgage deed was lost and the plaintiff claimed to redeem; see also Balaji Narji v. Babu Devli, (1868) 5 Bom HC 159 All CJ, wherein it was held that a very slight proof that a mortgage had been originally made will shift the entire burden of proof on the defendants; But the prima facie evidence must be forthcoming; see Parmanand Misser v. Sahib Ali, (1889) ILR 11 All 438; Prem Singh v. Mohammad Khurshid, AIR 1927 Lah 574; Ramchandra v. Mukund, (1901) 3 Bom LR 152. 62. Gursaram v. Shib Singh, AIR 1943 All 393; Sevaji Raghunatha v. Chinna Nayana, (1864) 10 Mad IA 151 ; see also Purshottam v. Sagaji, (1904) ILR 28 Bom 87, where the right of redemption was acquired by adverse possession by the mortgagor who had no title when the deed was executed. 63. Bhailal Ganpatram v. Keshavji, AIR 1952 Kutch 1. 64. Pearce v. Morris,(1869) 5 Ch App 227. 65. CK Shetty v. Abdul Khadar, AIR 1956 Mys 14. 66. Hasan Ali v. Gagan Nath, AIR 1956 Assam 17. 67. See the Benami Transaction Prohibition Act, 1988. 68. A benamidar, his heirs or assignees could sue even where the real owner was not a party to the suit, see Gur Narayan v. Sheo Lal Singh, 46 IA 1; Mohammad Sharieff v. Syyad Kasim, AIR 1933 Mad 635 [LNIND 1933 MAD 121]. 69. Bouston v. Williams,(1870) 5 Ch App 655. 70. Bai Ruttonbai v. Eraser Ice Factory,(1909) 32 Bom 521. 71. Pandurang v. Dadabhoy, (1902) ILR 26 Bom 643. 72. Jugat Tarinin v. Naba Gopal, (1907) ILR 34 Cal 305; Ragho v. Hari, (1900) ILR 24 Bom 619; Bolye Chund v. Moulard, (1877) ILR 4 Cal 572. 73. Trimbak Jivaji v. Sakharam, (1892) ILR 16 Bom 599. 74. United Oversees Bank v. Jiwani, (1977) 1 All ER 733. 75. Chase Manhattan Bank v. Israel British Bank Ltd., (1979) 33 All ER 1025. 76. Janhari Singh v. Ganga, (1919) ILR 41 All 631; Srinivasdas Bavri v. Meherbai, (1917) ILR 41 Bom 300; see also Barbar Maran v. Ramana, (1897) ILR 20 Mad 461, wherein it was held that payment to one of the several mortgages is a valid discharge and Follesatha v. Mohamad Rashiuddin, AIR 1934 Mad 656 [LNIND 1934 MAD 35], wherein it was held that a purchase by one of several co-mortgages of the equity of redemption has the effect of extinguishing the mortgage. 77. Ahinsa Bibi v. Abdul Kadar, (1902) ILR 25 Mad 26; Sitaram v. Sridhar, (1903) ILR 27 Bom 292. 78. Ram Kirpal v. Baleswar, AIR 1941 Pat 246; see also Gopaljee Jha v. Upendranarain Jha, AIR 1942 Pat 408. 79. Satyabati v. Harabati, (1907) ILR 34 Cal 223; Velayada Naiker v. Hyder Hussain, (1910) ILR 33 Mad 100; Jagat Tarini v. Naba Gopal, (1907) ILR 34 Cal 305. 80. Narain Das v. Abinash Chunder, AIR 1922 PC 347. 81. Varadarajulu v. Dhanalakshmi, (1914) 16 Mad LT 365. 82. Chunder Count v. Jadoonath, (1878) ILR 3 Cal 468; see also Haji Abdul v. Haji Noor Muhammad, (1892) ILR 16 Bom 141, wherein it was held that the rule was limited to cases where the party making the tender admits that more is due than is tendered. The mortgagee is not to suffer due to the mistake of the mortgagor. The creditor may accept the amount tendered in part payment if the debtor does not make it a condition that the tender is to be discharged in whole, Digambar Das v. Harendra Narayan, (1909) 14 Cal WN 617. The creditor may decline to accept the payment in instalments, see Behair Lal v. Ram Ghulam, (1902) ILR 24 All 461. 83. Het Singh v. Behari Lal, AIR 1921 All 358. 84. Abdul Rahim v. Vithal Das, AIR 1981 Bom 58 [LNIND 1980 BOM 199]. 85. Dinanath Rai v. Rama Rai, AIR 1926 Pat 512; Batchanna v. Varahalu, (1901) ILR 24 Mad 408; Raghunanadan v. Raghunandan, AIR 1921 All 353 (FB); Asharfi v. Ram Swarup, AIR 1972 Pat 183; Het Singh v. Behari Lal, AIR 1921 All 358; see also Muhammad Ali v. Baldeo, (1916) ILR 38 All 148, wherein it was held that a suit is necessary to prove such a tender. 86. Kamaya v. Devapa, (1898) ILR 22 Bom 440; Muhammad Mushtaq v. Banke Lal, (1920) ILR 42 All 420; Chetan Das v. Gobind, (1914) ILR 36 All 139.

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(IN) Poonam Pradhan Saxena : Property Law 87. Pandurang v. Dadabhoy, (1902) ILR 26 Bom 643. 88. Pestonji v. Hormasji, (1903) 5 Bom LR 387. 89. Balasidhantam v. Perumal, (1914) 27 Mad LJ 475; Ahmadullah v. Abdul Rahim, AIR 1924 All 26. 90. Haji Abdul v. Haji Noor Muhammad, (1892) ILR 16 Bom 141. 91. Shankarlal Nathumal Chandak v. Balkrishna Jagannath Gujarathi, AIR 2010 Bom 4 [LNIND 2009 BOM 770]. 92. Murarilal v. Dev Karan, AIR 1965 SC 225 [LNIND 1964 SC 184]; Pomal Kanji Govindji v. Vrajilal Karsandas Purohit, AIR 1989 SC 436 [LNIND 1988 SC 866]; Ismail Nathabai v. Muljibhai Shankerbhai Bhramabhatt, AIR 1994 Guj 8 [LNIND 1992 GUJ 228]; Patel Naranbhai v. Dhulabhai Galabhai, (1992) 4 SCC 264 [LNIND 1992 SC 422]. 93. The Transfer of Property Act, 1882. 94. Meherbhan Khan v. Makhan, AIR 1930 PC 142; Nainu v. Kishan Singh, AIR 1957 HP 46 [LNIND 1956 HP 16]; Ambalal Jasraj v. Ambalal Badarwal, AIR 1957 Raj 321 [LNIND 1957 RAJ 7]; Jagjiwan v. Jinuba, AIR 1951 Sau 53. 95. U. Nilan v. Kannayyan, AIR 1999 SC 3750 [LNIND 1999 SC 895]. 96. (1899) 2 Ch 474. 1.

Pomal Kanji Govindji v. Vrajilal Karsandas Purohit, AIR 1989 SC 436 [LNIND 1988 SC 866].

2.

Ram Shanker Singh v. Silver Screen Corpn., AIR 1988 Cal 46 [LNIND 1986 CAL 391]; Seth Gangadhar v. Shankerlal, AIR 1958 SC 770 [LNIND 1958 SC 52]; Lewis v. Frank Love Ltd., (1961) 1 All ER 446; Ram Ganesh v. Rup Narain, AIR 1925 All 34; Ram Bali v. Ram Asre, AIR 1925 Oudh 386; Vaddiparthi v. Appalanarasimhalu, AIR 1921 Mad 517 [LNIND 1921 MAD 106]; Pandiyan v. Vellayappa, (1917) 33 Mad LJ 316; Chellkutti v. Vengappa, AIR 1925 Mad 366; Sriniwasa v. Rahakrishnan, (1915) ILR 38 Mad 667; Athan Kutti v. Subhadra, (1917) 32 Mad LJ 317; Rocky Flora v. Parvati Ammal, AIR 1957 Ker 175 [LNIND 1957 KER 88]; Srinivasa v. Satyanand, AIR 1969 Pat 64.

3.

Gulab Chand Sharma v. Sarawati Devi, AIR 1977 SC 242.

4.

Kanaran v. Kuttooly, (1898) ILR 21 Mad 110; Jadam Jampura Bai v. Jinki Siddappa, AIR 1944 Mad 237 [LNIND 1943 MAD 264].

5.

Ramlochan Singh v. Pradip Singh, AIR 1959 Pat 230.

6.

FX DPINTO v. Chinappa, AIR 1950 Mad 524.

7.

Rangli v. Peary Lal, AIR 1940 All 101.

8.

Sapneswar v. Brindaban, AIR 1934 Pat 397.

9.

Ram Saran v. Amrita, (1880) 3 All 369 (FB); see also Shiam Lal v. Jagdamba Prasad, AIR 1928 All 131, wherein it was held that a condition that the mortgagor can redeem without alienating any other property is valid.

10. Mayilaraya v. Subbaraya, (1862) 1 Mad HC 81 ACJ; Sarju Ram v. Taji Bibi, AIR 1962 All 422 [LNIND 1961 ALL 199], where the rate of 24 percent was coupled with a mortgage of 49 years; Gajraj Singh v. Maharaj Munnu Lal, AIR 1930 Oudh 173; Sunder Keur v. Sham Kishan, (1906) ILR 34 Cal 150; Rama Krishnayya v. Venkata Somayaajulu, AIR 1934 Mad 31 [LNIND 1933 MAD 286]. 11. Ram Charan v. Bhagwan Dei, AIR 1955 All 339 [LNIND 1951 ALL 201]; Gunga Prashad v. Land Mortgage Bank, (1894) ILR 21 Cal 366; Surya Narain v. Jogendra Narain, (1892) 20 Cal 360; Sarfaraz Singh v. Udwat Singh, AIR 1929 Oudh 30; Sahib Singh v. Muhammad Ali, 58 IC 115. 12. Bhullan v. Bachcha, AIR 1931 All 380. 13. Ram Saran v. Amrita, 3 All 369. 14. Sarbadawan v. Bijal, AIR 1914 All 334 [LNIND 1914 ALL 122]. 15. Shyam Peary v. EMA Co. Ltd., 22 Cal WN 226. 16. Meherban v. Makhna, AIR 1930 PC 142. 17. Kripal v. Sheoaber, AIR 1930 All 283. 18. Ram Khilawan v. Mullo, AIR 1957 MP 200 [LNIND 1957 MP 130]. 19.

AIR 2002 P&H 108.

20. Rangayya Chetti v. Raghavacharulu, AIR 1929 Mad 243 [LNIND 1928 MAD 214]; see also Haris Paik v. Jahuruddi, (1897) 2 Cal WN 575, wherein it was held that a stipulation for pre-emption was valid and not opposed to public policy. 21. Malisetti Viranna v. Pallayya, AIR 1948 Mad 7.

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(IN) Poonam Pradhan Saxena : Property Law 22. Maina Devi v. Thakur Mansingh, AIR 1986 Raj 44; Gobind Ram v. Rajphul Singh, AIR 1973 P&H 94; Satyavatamma v. Padmanabhan, AIR 1957 Andh Pra 30; Bhimrao v. Sakharam, AIR 1922 Bom 277; Mahomed Muse v. Jijiban, (1885) ILR 9 Bom 524; Ram Narain Pathak v. Surathnath, (1920) 5 Pat LJ 423. 23. Rama Shanker Singh v. Silver Screen Corpn., AIR 1988 Cal 46 [LNIND 1986 CAL 391]. 24. Multi Service Book Binding v. Morden, (1978) 2 WLR 535. 25. Lala v. Hirajan, AIR 1926 Oudh 502; Miran Baksh v. Bajrang, 10 OC 214. 26. Mohammad v. Ezekiel, (1905) 7 Bom LR 772. 27. Chalikani Venkatanarayanim v. Zamindar of Tuni, AIR 1923 PC 26; Bisheshwar Dayal v. Chedi Singh, AIR 1935 Pat 157. 28. Hope Mills Ltd. v. Cawasji, (1911) 13 Bom LR 162 [LNIND 1910 BOM 134] ; see also Mahadeo v. Ram Chandra, (1904) 6 Bom LR 590, wherein it was held that the mortgagee cannot charge for his personal service. 29. AIR 1986 Raj 44. 30. Hastimal v. P Tej Ram Sharma, AIR 2007 SC 3246 [LNIND 2007 SC 1158]. 31. Sakinabi Sirajuddin Kanchwala v. Srilal Hansraj Sharma, AIR 2010 (NOC) 831 (Bom). 32. Chandrakant Shankar Rao Mochale v. Parubai Bhairu Mohite, AIR 2008 SC 3255 [LNIND 2008 SC 672]. 33. Haquik Mian v. Rajendra Prasad, AIR 1997 Pat 59. 34. Gautam Lal v. Sukhlal, AIR 2011 Raj 57. 35. Dildar v. Shukrullah, AIR 1924 All 444; Venkateshiah v. Venkata Krishniah, AIR 1958 Mys 20. 36. Java Singh Mhoprekar v. Krishna Balaji Patil, AIR 1985 SC 1646 [LNIND 1985 SC 222]. 37. Parichhan Mistry v. Acchiabar Mistry, AIR 1997 SC 456 [LNIND 1996 SC 2330]. 38. Ramchand v. Raj Hans, (1906) 3 All LJ 517; Samudra Vijyam v. Sriniwasa Alwar, AIR 1956 Mad 301 [LNIND 1955 MAD 245]; Subrao v. Munjapa, (1892) ILR 16 Bom 705. 39. Anandrao Purshottam v. Bhikaji, AIR 1922 Bom 156. 40. Ramchandra v. Mukund, (1901) 3 Bom LR 152. 41. Midleton (Lord) v. Eliot,(1847) 15 Sim 531. 42. Hombi v. Matchman, (1848) 16 Sim 325. 43. Yates v. Plumbee,(1854) 2 S&G 174. 44. Snow View Properties Ltd v. Punjab and Sind Bank, AIR 2010 Cal 94 [LNIND 2009 CAL 645]. 45. Bakhtawar Begum v. Husaini Khanam, AIR 1914 PC 36. 46. See The Transfer of Property Act, 1882, s. 60. 47. Ashrafi v. Fatima, AIR 1940 All 29. A possessory mortgage for twelve years can be redeemed after 12 years, see Sankara Pillai v. Mathunni, AIR 1958 Ker 245 [LNIND 1957 KER 341]. 48. Bakhtawar v. Husaini, AIR 1914 PC 36; Kishen Singh v. Nathu Ram, AIR 1939 Lah 235; Sakkaram v. Vithu, (1866) 2 Bom HC 225 ACJ; Abdul Haq v. Ghulam, (1896) ILR 20 Bom 677; Raghubar Dayal v. Budhu Lal, (1886) ILR 8 All 95; Tirugnana v. Nallatambi, (1892) 16 Mad 486; Vadju v. Vadju, (1881) ILR 5 Bom 22. The other view taken by some of the courts was that the time fixed is for the convenience of the mortgagor and he is entitled to redeem before the stipulated time unless there was an express condition to the contrary, see Dorappa v. Kundukuri, (1867) 3 Mad HC 363 All CJ; Rose Ammal v. Rajarathnam, (1900) ILR 23 Mad 33; Mashook v. Maram, (1875) 8 Mad HC 31 All CJ; Bhagwat Das v. Pershad Singh, (1888) ILR 10 All 602; Raja Setrucherla v. Raja Vairicherla, (1880) ILR 2 Mad 314. 49. Chengiah v. Pichayya,(1907) 17 Mad LJ 177. 50. Purna v. Peary, 17 Cal WN 149; Seth Ganga Dhar v. Shanker Lal, AIR 1958 SC 770 [LNIND 1958 SC 52]. 51. Ashrafi v. Zamir, AIR 1940 All 29; Simon v. Rangayya, AIR 1929 Mad 339; Kudailal v. Aisha, AIR 1927 Oudh 199. In such cases the mortgagor can redeem at any time within the stipulated period, see Puma Chandra v. Peary Mohan, (1912) ILR 39 Cal 828, 15 IC 287; Rose Ammal v. Rajarathnam, (1900) ILR 23 Mad 33; Radha Krishna v. Madhava, (1907) 17 Mad LJ 83; Chandu v. Koaja, (1915) 29 Mad LJ 86; Satyavatamma v. Padmavatamma, AIR 1957 Andh Pra 30 ; for a contrary opinion, see Shiam Lal v. Jagdamba Prasad, AIR 1928 All 131; Akbar Hussain v. Shah Ahsanul, AIR 1932 All 155; Raghubar Dayal v. Budhu Lal, (1886) ILR 8 All 95. 52. In some agricultural tenancies time is the essence and redemption at any other time may hamper agricultural operations. So a mortgage redeemable in the month of Jeth can not be redeemed in any other month, see Bansi v. Girdhar Lal, (1894) All WN 143;

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(IN) Poonam Pradhan Saxena : Property Law Saiyad Ahmed v. Dharmun, AIR 1921 All 71; Narsinh v. Accaibar Singh, (1914) ILR 36 All 36; Shib Narian v. Chitru, AIR 1949 East Punj 389; Kirpal Singh v. Sheoamber, AIR 1930 All 283; Muhammad Ali v. Baldeo, (1916) ILR 38 All 148. 53. Hewanchal v. Jawahir, (1889) ILR 16 Cal 307, PC, where the mortgage for eight years was to be redeemed during second; fourth or eighth year. 54. Har Baksh Singh v. Mahabir Singh, AIR 1936 Oudh 160; see also Savarimuthu v. Manhandan Nadar, AIR 1951 Tr & Coch 286, wherein it was held that a condition in the mortgage deed permitting the mortgagee to plant trees and to recover compensation from the mortgagor at a certain rate for a number of years does not entitle a mortgagor to sue earlier than the stipulated period. 55. Chhotku Rai v. Baldeo, (1912) ILR 34 All 659; Narasimha Rao v. Seshayya, AIR 1925 Mad 825 [LNIND 1924 MAD 322]; Durga Charan v. Poresh, AIR 1925 Cal 105; Sanwaley Prasad v. Sheo Swarup, AIR 1927 Oudh 12. 56. Chaturbhai Valdas v. Bai Jivi, AIR 1973 Guj 93 [LNIND 1972 GUJ 129]; Hira v. Sitaram, AIR 1949 Nag 12; see also Seth Gangadhar Das v. Shanker Lal, a term of 85 years; Massa Singh v. Gopal Singh, AIR 1983 P & H 437, a term of 90 years; Sarjug Mahto v. Devrup Devi, AIR 1963 Rang 114, a mortgage for 99 years; Abdulla v. Saadullah, 15 IC 917, 150 years; Mela Ram v. Prithvi Chand, AIR 1926 Lah 523, 60 years; Abdul Hak v. Ghulam Jilani, (1896) ILR 20 Bom 677, 50 years; Ago Muhammad Ali v. Venkattappayya, (1918) 35 Mad LJ 287, 37 years; Muhammad Ibrahim v. Muhammad Aziz, (1910) Mad WN 792, 90 years; Govindrao v. Annaji, (1891) PJ 241, 27 years; Lila Morji v. Vasudev, (1875) 11 Bom HC 283 All CJ, 15 years; Saleh Raj v. Chandan Mal, AIR 1960 Raj 47 for 99 years, was held as not oppressive and not amounting to clog on equity of redemption. 57. A term of 200 years is a clog, see Fateh Muhammad v. Ram Dayal, AIR 1927 Oudh 224. 58. Abdul Hakim v. Sajjad Hussain, AIR 1923 Oudh 209; see also Shubratan v. Dhanpat Godaraiya, AIR 1933 All 70, wherein it was held that a long period even though coupled with onerous and oppressive terms affords for no ground for interference unless there has been coercion, fraud or undue influence. 59. Soni Bhailal v. Hiralal Lakhamshi, AIR 1981 Guj 120 [LNIND 1980 GUJ 118]. 60. AIR 1958 SC 770 [LNIND 1958 SC 52]. 61. AIR 1989 SC 436 [LNIND 1988 SC 866]: (1989) 1 SCC 458 [LNIND 1988 SC 866]. 62. AIR 1953 Bom 408 [LNIND 1952 BOM 103]. 63. AIR 1944 All 204; see also Sarjug Mahto v. Devrup Devi, AIR 1963 Pat 114. 64. AIR 2000 SC 1935 [LNIND 2000 SC 565]; see also Khatubai Nathu Sumra v. Rajgo Mulji Nanji, AIR 1979 Guj 171. 65. Sarbdawan v. Bijay Singh, (1914) ILR 36 All 551. 66. Neelakhandan v. Ananthakrishna, (1907) ILR 30 Mad 61. 67. Rajai Singh v. Randhir Singh, AIR 1925 All 643; Kunj Bihari Lal v. Prag Narain, AIR 1922 Oudh 283. 68. Bhulla v. Bachcha, AIR 1931 All 380. 69. Fauzdar Khan v. Abdul Samad, AIR 1924 Lah 129. 70. Maganlal Chhotalal Chhatrapati v. Balachand Chhaganlal Shah,(1974) 15 Guj LR 193 ; see also Bachu Upadya v. Parbhu AIR 1926 Oudh 356; Raza Muhammad v. Ram Lal, AIR 1925 Oudh 406; see also Cheddi Lal v. Balu Nandan, AIR 1944 All 204, wherein it was held that a condition enabling the mortgagee to construct a new structure after demolishing an old one and take payment from the mortgagor is not a clog on equity of redemption. 71. Balbhaddar v. Danpat Dayal, AIR 1924 Oudh 193. 72. Sangar Gagu Dhula v. Shah Laxmiben Tejsi, AIR 2001 Guj 329. 73. Abdul Hakim v. Sajjad Hussain, AIR 1923 Oudh 209. 74. Ajit Singh v. Kakhbir Singh, AIR 1992 P&H 193. 75. Sangar Gagu Dhula v. Shah Laxmiben Tejsi, AIR 2001 Guj 329; Shiv Dev Singh v. Suchha Singh, AIR 2000 SC 1935 [LNIND 2000 SC 565]. 76. Genu v. Narayan, AIR 1921 Bom 51. 77. Mohamd Sher Khan v. Swami Dayal, AIR 1922 PC 17; see also Narsingh Pershad v. Rupan Singh, AIR 1929 All 388, wherein the court held that a renewal for 20 years in case of default in payment did not amount to clog. 78. Punnu Ram v. Ghulam Hussain, AIR 1926 Lah 494; Hari v. Vishnu, (1904) ILR 28 Bom 349; Ganpat Rai v. Abdulji Chandji, 169 IC 23; Jai Narain v. Gokul Singh, AIR 1937 Oudh 321; Mohammad Khan v. Chandi Shah, AIR 1933 Lah 864; Ranjit Khan v. Ram Dhan, (1909) ILR 31 All 482; Bikhan Singh v. Shanker, (1909) 6 All LJ 255; Shib Narain v. Gajadhar, AIR 1926 All 506; Lal Bahdur v. Rameshwar Prasad, AIR 1927 Oudh 510; Gaya Prasad v. Rachpal, AIR 1923 Oudh 24; Jugeshari Keur v. Aftab Chand, AIR 1928 Pat 582; Hargobind v. Tularam, 10 IC 222.

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(IN) Poonam Pradhan Saxena : Property Law 79. Nathwa v. Kanhaiya Vair, (1921) Lah 170; Jokhu Bhunja v. Sitla Bakhsh, AIR 1930 All 416; Neba Ram v. Muhammad Hussain, AIR 1926 Lah 90; Sultan Muhammad v. Ladha, AIR 1926 Lah 633; Ram Kishore v. Ram Nandan, AIR 1928 All 99; For a contrary opinion, see, Ramakrishna v. Nekker, (1917) 33 Mad LJ 581; Kesar Kunwar v. Kashi Ram, (1915) ILR 37 All 634. 80. Chhotalal Govindram v. Mathur, (1893) 18 Bom 591. 81. Sheo Shanker v. Parma Mahton, (1904) ILR 26 All 559; Radhaswami v. Hanskumar, AIR 1959 MP 172 [LNIND 1958 MP 146]; Durga Prasad v. Dukhi Roy, (1905) 9 Cal WN 789; Rajmal v. Shivaji, (1902) 27 Bom 154; Rama v. Martland, (1885) ILR 9 Bom 236. 82. Tarkeshwar v. Kalka Pathak, AIR 1927 All 144; Kalaperumal v. Ulakudayaperumal, AIR 1955 Tr & Coch 232; Muhamad Hussain v. Sheo Darshan Das, (1907) 4 All LJ 176. 83. Kanhaiya Lal v. Nahar, (1903) ILR 27 Bom 297; Abdul Rahim v. Madhav Rao, (1960) 14 Bom 78. 84. Ram Singh v. Baij Nath, (1919) 17 All LJ 117. 85. Shanker v. Yashwant, (1920) 22 Bom LR 965 [LNIND 1920 BOM 21]. 86. Vishnu Sakharam v. Kashinath, (1887) ILR 11 Bom 174. 87. Jallappa v. Narasimha Setty, AIR 1963 Andh Pra 420; Ramalinga Mudaliar v. Arunachala, AIR 1926 Mad 386 [LNIND 1925 MAD 324]. 88. Bageshwari Tewari v. Nandoo Singh, AIR 1937 All 32. The limitation period is to be computed from the date the mortgagor becomes entitled to redeem. 89. Lila Chand v. Malappa Tukaram, AIR 1960 SC 85 [LNIND 1959 SC 157]. 90. See the Limitaiton Act, 1963, art. 61(a). Under the old Act of 1908 the limitation time was 60 years. See Vora Ibrahim Dosaji v. Vora Ibrahim Noorbhai Makati, AIR 1999 Guj 101 [LNIND 1998 GUJ 224], wherein a suit filed after 29 years was held as within time. 91. Pal Singh v. Bhola Singh, AIR 1934 Lah 242. 92. Banarasi Dass v. Jiwan Rani, AIR 1991 P&H 85. 93. See Bai Kewal v. Madhu Kala, AIR 1922 Bom 319. A minors right is not barred by s. Section 7 of Limitation Act, 1963 as a comortgagor could have redeemed during his minority. 94. Motilal Jadav v. Samal Bechar, AIR 1930 Bom 466; see also Bhogilal v. Amritlal, (1892) 17 Bom 173, wherein it was held that the mortgage security is indivisible and limitation for the suit of redemption is not saved by an acknowledgement made by one of the heirs of the mortgage. 95. Jaimal v. State of HP, AIR 2010 HP 7 [LNIND 2009 HP 61]; see also Urmila v. Sohanlal, AIR 2010 (NOC) 654 (P&H) 96. Prakash Chand v. Amar Singh, AIR 2011 HP 21 [LNIND 2010 HP 308]; Jaimal v. State of HP, AIR 2010 HP 7 [LNIND 2009 HP 61]. 97. Ram Kishan v. Sheo Ram, AIR 2008 P&H 78. 98. Shankarlal Nathumal Chandak v. Balkrishna Jagannath Gujarathi, AIR 2010 Bom 4 [LNIND 2009 BOM 770]. 1.

Laxman v. Board of Revenue, AIR 2008 Raj 109.

2.

Jaswant Kaur v. Des Raj, AIR 2010 HP 61 [LNIND 2009 HP 90].

3.

AIR 2001 Guj 329.

4.

Thota China Subbarao v. Mattapalli Raju, AIR 1950 FC 1; Sridhar v. Ganu, AIR 1928 Bom 67; Rajaram Vithal v. Ramachandra, AIR 1948 Bom 226.

5.

Joti Lal v. Sheodhyan AIR 1936 Pat 420; Kalpada Mukherjee v. Basant Kumar, AIR 1932 Cal 126; Poreshnath v. Ramjodu, (1889) ILR 16 Cal 246; Somnath v. Sanno, AIR 1959 Ori 122 [LNIND 1958 ORI 42]; Pardas v. Dwarka Singh, (1910) 7 All LJ 953; Mohunt Lal v. Ram Charan, AIR 1931 All 223; Malikarjunadu v. Lingamurti, (1902) ILR 25 Mad 244; Saligram v. Muradan, (1903) ILR 25 All 231; Murugesa v. Ramasami, (1916) 39 Bom 882 ; see also Asia Khatoon v. Noor Jahan Khatoon, AIR 1933 Cal 126.

6.

Sardar Autar Singh v. Mohammad Ejaz, 77 IA 53.

7.

Rehman v. Bhoorji, AIR 2010 P&H 151.

8.

R Chidambara Manickam v. Shakeena, AIR 2008 Mad 108 [LNIND 2007 BMM 873].

9.

Edumban Chettiar v. Ramalakshmi Pichamma, AIR 1965 Ker 153 [LNIND 1964 KER 24].

10. Ramachandra v. Hammanta, (1920) ILR 44 Bom 939.

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(IN) Poonam Pradhan Saxena : Property Law 11. Bhaiya Raghunath Singh v. Hansraj Kunwar, AIR 1934 PC 205; Hirabai v. Ganesh Dattatraya, AIR 1959 Bom 172 [LNIND 1957 BOM 203]; Govinda v. Narain, AIR 956 Hyd 107; Kizhekke Kizhukkott Kunhothi v. Payikkat Mammad Koya, (1949) Mad 276. 12. Narayana Shenoi v. Yasodabai, AIR 1955 Tr & Coch 9. 13. Badrudin v. Sitaram, AIR 1930 Bom 401; Rama v. Bhagchand, (1915) 39 Bom 41. 14. Rajaram Vithal v. Ramachandra, AIR 1948 Bom 226. 15. ChunnaLal v. GG Council, AIR 1905 All 89. However where the first suit is pending the second suit will not lie; see Abdul Karim v. Durga Prasad, AIR 1927 All 305. 16. Vora Aminbai Ibrahim v. Vora Taherali Mohamed Ali, AIR 1998 Guj 31. 17. Kukaji v. Kesri, AIR 1952 MB 6; Ellappa v. Sivasubramaniam, AIR 1937 Mad 293 [LNIND 1936 MAD 194]; Sitla v. Dhun Singh, AIR 1925 Oudh 114. 18. Perayya v. Vnekata, (1888) 11 Mad 409. 19. Harihar Baksh v. Lachman Singh, AIR 1934 Oudh 246. 20. K. Narayan Rao v. Meenakshivelu, (1973) 2 Mad LJ 467. 21. CPKMudaliar v. Palaniammal, (1973) 2 Mad LJ 457. 22. Syed Noor Mohammad v. Syed Khaja Moimuddin, AIR 2008 AP 82 [LNIND 2007 AP 1012]. 23. Ganga Dhar v. Shanker Lal, AIR 1958 SC 770 [LNIND 1958 SC 52]; Shiam Lal v. Jagdamba Prasad, AIR 1928 All 131; Rahmat Ali v. Shaid Ram, AIR 1927 Lah 226; Sakharam v. Vithu, (1866) 2 Bom HC 225 ACJ; Narasimha Rao v. Seshayya, AIR 1925 Mad 825 [LNIND 1924 MAD 322]; Syad Abdul Hak v. Gulam Jilani, (1896) 20 Bom 677; Sari v. Motiram, (1898) 22 Bom 375; Tirugnana v. Nallatarnbi, (1893) 16 Mad 486; Vadju v. Vadju, (1881) 5 Bom 22. 24. Bhawani v. Sheodihal, (1905) 26 All 479. 25. Kadir Bibi v. Mailappa, AIR 1946 Mad 542 [LNIND 1946 MAD 93]. 26. Nadershaw v. Shirinbai, AIR 1924 Bom 264. 27. Kuppuswami Chetty v. Papathi Ammal, (1897) 21 Mad 369; Mirza Yadali Beg v. Tukaram, (1921) ILR 48 Cal 22; a co-mortgagor cannot redeem their portions in isolation, see Chhaganlal Keshavlal Mehta v. Patel Narandas Maribhai, AIR 1982 SC 121 [LNIND 1981 SC 462]; Palla Singh v. Attar Singh, AIR 1954 Punj 81. 28. See The Transfer of Property Act, 1882, s. 60;Gangadhar Manji Choudhary v. Tukaram Kisan Naikwadi AIR 2010 (NOC) 832 (Bom). 29. Hathasanan v. Parameswaran, (1899) ILR 22 Mad 209. 30. Suryanarayanrao v. Daulatrao, (1949) ILR Nag 60. Even if the mortgagee is willing to allow redemption of a portion of the share partial redemption is not allowed, see Fakir Chand v. Babu, (1917) ILR 39 All 719. 31. Shiv Harakh Rai v. Akbar Ali, AIR 1948 All 55. 32. Ananda Pandurang v. Uttamrao, AIR 1933 Nag 44. 33. Durga Prasad v. Chunni, AIR 1940 All 528; Kanta Prasad v. Jag Saha, AIR 1925 Pat 57; Shanker v. Bhikaji, AIR 1929 Bom 139; Purna Chandra v. Gobinda, (1948) ILR 27 Pat 572; Rugad Singh v. Satya Narain, (1905) ILR 27 All 178; Baikantha Nath v. Mohesh Chandra, (1917) 22 Cal WN 800. 34. Ananthaya Holla v. Thimmaju Kengsu, AIR 1956 Mad 293 [LNIND 1955 MAD 232]; Maulabux v. Sardarmal, AIR 1952 Nag 341; Bank of Poona v. NCHOUSING Society, AIR 1968 Bom 106 [LNIND 1967 BOM 7]; Kunhi Kalanthan v. P. Madhavi Amma, AIR 1955 Mad 260 [LNIND 1954 MAD 131]. 35. Parukutti Amma v. Balameenakshiamma, AIR 1954 Mad 818 [LNIND 1953 MAD 236]; Tarapada Mondal v. Hajia Khatoon, AIR 1956 Cal 625 [LNIND 1956 CAL 80]; Thommi v. Devasai, AIR 1963 Ker 75. 36. Hathasanan v. Parameswaran, (1899) ILR 22 Mad 209. 37. Jagir Singh v. Atma Singh, AIR 1979 P&H 70. 38. Banarasi Dass v. Jiwan Ram, AIR 1991 P&H 87; Ambe Lal v. Phina, AIR 1974 HP 11 [LNIND 1973 HP 3]; Narain Singh v. Teja Singh, AIR 1955 Punj 96. 39. Purshottam v. Isab Mohammad, AIR 1927 Bom 513. 40. Subba Rao v. Sarvarajudu, AIR 1923 Mad 533. 41. Narendra Narain v. Dwarka Lal Mundur, (1877) ILR 3 Cal 397; Madhavan Nair v. Ramakutty Menon, AIR 1994 Ker 75 [LNIND 1993 KER 446].

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(IN) Poonam Pradhan Saxena : Property Law 42. Phula Singh v. Harnaman, (1941) 43 Pat LR 705, 197 IC 626, AIR 1941 Lah 421; Nawab Azimut Ali v. Jowahir Singh, (1870) 13 MIA 404. 43. Mirza Yadalli Beg v. Tukaram, AIR 1921 PC 125; Pariakuruppa v. Satyanarayan Moorthi, AIR 1937 Mad 136 [LNIND 1936 MAD 94]. 44. Jai Narain v. Gokul Singh, AIR 1937 Oudh 321. 45. Girvadis v. Chacku, AIR 1952 Tr & Coch 363. 46. Kurien v. Ramkrishna, AIR 1952 Tr & Coch 552; Kanhaiya Lal v. Tulsi Prashad, AIR 1931 All 197; Nathwa v. Kanhaiya, AIR 1921 Lab 170; Jiwan Das v. Tharaj, (1920) ILR 1 Lah 105; Punnu Ram v. Ghulam Hussain, AIR 1926 Lah 494. 47. Parmeshwar v. Raj Kishore, AIR 1925 Pat 59. 48. Ganga Rai v. Kidharnath Rai, (1911) ILR 33 All 393; see also Pyari Bibi v. Andi Ranga Chariar, AIR 1956 Mad 691; see also Lallu Singh v. Ram Nandan, AIR 1930 All 136 (FB); Khiali Ram v. Nathu Lal, (1893) ILR 15 All 219 (FB). 49. The section does not use the word redemption and applies only to usufructary mortgages, see Panaganti Rama Rayanimgar v. Maharaja of Venkatagiri, (1927) ILR 50 Mad 180 and not to anomalous mortgage; see Panaganti v. Maharaja of Venkatagiri, AIR 1927 PC 32. 50. Annanda Haits v. Kudiram Hait, (1914) 19 Cal LJ 532; Appanna v. Venkata Sami, AIR 1942 Mad 292. 51. Ram Prashad v. Bishambhai, AIR 1946 All 400. In some old cases, the mortgagor was allowed to redeem after making cash payment. See Hardeo Badhsh v. Deputy Commr, AIR 1926 Oudh 281; Sahib Zadah v. Parmeshar, (1877) ILR 1 All 524; Raja Barda Kant v. Bhagwan Das, (1877) ILR 1 All 344. 52. Aga Muhammadally v. Vendatappayya, (1918) 35 Mad LJ 287; Setrucheria Ramabhadra v. V.Surianarayanaraju, (1878) ILR 2 Mad 314; Tiruganna v. Nallatambi, (1893) ILR 16 Mad 486. 53. Immani Sheshayya v. Dronawaraju, AIR 1930 Mad 160 [LNIND 1929 MAD 11]; Jaijit Rai v. Gobind Tiwari, (1884) ILR 6 All 303. 54. Rukminibai v. Venkatesh, (1907) ILR 31 Bom 527; Mahabal Singh v. Rajeshwari, AIR 1927 Oudh 208; Biharilal v. Shib Lal, AIR 1924 All 591. 55. Subratan v. Dhapat Godariya, AIR 1933 All 70; Narasinha Rao v. Seshayya, AIR 1925 Mad 825 [LNIND 1924 MAD 322]; Rangayya Naidu v. Basana, AIR 1926 Mad 594 [LNIND 1925 MAD 389]. 56. Venkita Subramaniya Ayyar v. Vadasseri Karnawan, AIR 1956 Mad 434 [LNIND 1955 MAD 253]; Bee Vathuma v. Lakshmi Ammal, AIR 1972 Tr & Coch 92; Venkappa v. Gangadhara, AIR 1959 Ker 112 [LNIND 1958 KER 80]. 57. Dhulabai v. Mabhai, AIR 1961 Guj 129 [LNIND 1960 GUJ 5]; Aditya Prasad v. Ram Ratan Lal, AIR 1930 PC 76; Jagannath v. Jaipal, AIR 1933 All 257; Paras Ram v. Sheo Dhan Pandey, AIR 1932 All 558; Har Prasad v. Ram Chundar, AIR 1922 All 174 (FB); Janardhan v. Anant, (1908) 32 Bom 386; Ram Das Choube v. Simirkha Kuar, 2 IC 144. 58. Tajjo Bibi v. Bhagwan, (1894) ILR 16 All 136. 59. M K Rakesh Kumar v. Asset Reconstruction Co., AIR 2008 AP 45 [LNIND 2007 AP 904]. 60. Ketki v. Dinabandhu, (1909) 10 Cal LJ 83; Mohan Lal v. Choudhary, (1901) 14 CPLR 169 ; An acquisition made after a decree extinguishing the mortgage will not pass to the mortgagor, see Sivananjiah v. Sithay Goudar, AIR 1921 Mad 627 [LNIND 1921 MAD 54]. 61. Parvathi v. Cherian, AIR 1951 Tr & Coch 94. 62. Sorabjee v. Dwarkadas, AIR 1932 PC 199. 63. Sadashi Anant v. Vithal, (1874) 11 Bom HCR 32 ACJ. 64. Nanchi v. Shititi, AIR 1923 Bom 42. 65. Rajah Kishendutt v. Rajah Mumtaz Ali, (1880) ILR 5 Cal 198; Bakshi Ram v. Darku, (1873) 10 Bom HCR 369. 66. Ram Lagan v. Mary Coffins, AIR 1926 Pat 572. 67. Venkatachariar v. Srinivasa, 4 IC 357. 68. A house is an inseparable accession, see Nannu Mal v. Ramchandra, AIR 1931 All 277 (FB). For a contrary opinion, see Gopilal v. Abdul Hamid, AIR 1928 All 381. 69. Durga Singh v. Naurang, (1895) ILR 17 All 282. 70. Such accession passes to the mortgagor, see C Venkatachariar v. Srinivasa, 4 IC 357; Ram Rai v. Maheshwar Prasad, AIR 1925 Pat 336; Mohan Lal v. Choudhary, (1901) 14 CPLR 169; Kondu v. Mahadev, AIR 1932 Bom 526, where the mortgagee was a Khot and the mortgagee acquired ‘Khot Nisbat land without his permission.

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(IN) Poonam Pradhan Saxena : Property Law 71. See The Transfer of Property Act, 1882, s. 63. 72. Rupan v. Champa, (1915) ILR 37 All 81; Arunachella v. Sithayi, (1896) ILR 19 Mad 327; Sammo v. Abdul Wahid, (1883) All WN 208. 73. Kathu v. Ganesh, AIR 1929 All 348. 74. Rajaram v. Vithal,(1914) 10 Nag LR 166. 75. Madho Ram v. Shamsuddin, (1883) All WN 203; Zubeda v. Sheo Charan, (1900) ILR 22 All 83; Jahangir v. Ram Harakh, 92 IC 262. A mortgagee may cut trees and remove timber, see Raghunandan Rai v. Raghunandan, AIR 1921 All 353; Ram Birch Singh v. Chhakauri Singh, AIR 1925 All 748; Lallu Singh v. Rahgunandan, AIR 1925 All 794; Ramchandra v. Shripati, AIR 1926 Bom 595; see also Nagesgar Rai v. Nand Lal, AIR 1926 All 67; Ma E v. Maung Po Ko, AIR 1930 Rang 63, wherein it was held that a grove cannot be treated as separable for though the mortgagor may remove the timber it would be destructive of land. 76. Parmanand Pandit v. Matadin, AIR 1925 All 427. 77. The rule is important to enable the mortgagor with his means to redeem the property, see Mohammad Mohideen Rowther v. NNH Rowther, AIR 1960 Mad 24 [LNIND 1958 MAD 1]. Profits are credited to the mortgagor, see Wasu Ram v. Muhammad Ramzan, AIR 1940 Lah 199. 78. Ram Asraj v. Hira Lal, AIR 1949 All 681. 79. Rupan v. Champa, (1915) ILR 37 All 81. 80. Manchersa v. Kamrunisa,(1869) 5 Bom HC 109 AC. 81. Rup Ram v. Munshi Chillu, AIR 1960 Punj 480. 82. Fayaz Hussain v. Chapi Hussain, AIR 1951 Ajm 10. 83. Zubeda v. Sheo Charan, (1900) ILR 22 All 83. 84. Varadappa Naicker v. Appavi Gounder, AIR 1973 Mad 454 [LNIND 1972 MAD 325]. 85. Pal Singh v. Bhola Singh, AIR 1934 Lah 242. 86. Gyan Chand v. Ram Prasad, AIR 1960 Pat 503. 87. Mahl Singh v. Amar Nath, AIR 1926 Lah 430; Abdul Aziz v. Rahmatullah, AIR 1933 Lah 155; Varadappa Naicker v. Appavi Gounder, AIR 1973 Mad 454 [LNIND 1972 MAD 325]; Qasim Bux v. Bhagwan Din, AIR 1903 Oudh 337. 88. Sundaram Aiyar v. Valia, AIR 1947 Mad 197 [LNIND 1946 MAD 180]. 89. Cheddi Lal v. Balu Nandan, AIR 1944 All 204; Sakha Ram Shet v. Amtha, (1890) ILR 14 Bom 28. 90. A blanket permission will amount to a clog on the mortgagors equity of redemption, see Mammunhi Beary v. Neelamma, AIR 1976 Kant 21 [LNIND 1975 KANT 99]. 91. Surarpur v. Diwan Chand, 59 IC 764; Kukaji v. Mishri Lal, AIR 1952 MB 6. 92. See The Specific Relief Act, 1963, s. 2;Rajah Kishendutt v. Rajah Mumtaz Ali, (1880) ILR 5 Cal 198; Baijnath Singh v. Harikishan, (1901) 6 Cal WN 372; Nelson v. Hannam, (1942) 2 All ER 680. 1.

Parsuramma v. Kanhunni, (1908) 4 Mad LT 437.

2.

The principle does not apply when the mortgagee in possession is evicted by a person having a paramount title, see Nanjappa v. Siddiah, AIR 1973 Mys 28; or if the mortgage is illegal, see Madras Hindu Mutual Benefit Permanent Fund v. Raghava Chetti, (1896) ILR 19 Mad 200.

3.

Chottelal v. Sheopal, (1911) ILR 33 All 335; Hillaya Subayya v. Narayanappa, (1912) ILR 36 Bom 185; Abdul Ahad v. Brij Narain Rai, AIR 1935 All 269.

4.

Joti Prasad v. Aziz Khan, (1908) 6 All LJ 5; Damodar v. Rama Rao, (1915) 39 Mad 101; Debendra Nath v. Mirza Abdul, (1909) 10 Cal LJ 150; Ramjiban v. Dhiku, (1912) 16 Cal LJ 264.

5.

Bholanath Sen v. Bala Ram Das, AIR 1922 PC 382.

6.

Brij Rantan Das v. Raghunanadan, 71 IC 944; Gulzar Ali v. Fida Ali, (1884) ILR 6 All 24.

7.

Mallika v. Ratanmani, (1897) 1 Cal WN 493 ; see also for a contrary opinion, Mahamaya Debi v. Haridas Haldar, (1915) ILR 42 Cal 455, 469.

8.

Narayan v. Chinaman, (1881) ILR 5 Bom 393; Nandan v. Jumman, (1912) ILR 34 All 640; Ganesh v. Keshav Rao, (1891) ILR 15 Bom 625.

9.

Ram Krishna v. Ganesh Narian, AIR 1934 Nag 149.

10. The mortgagor transfers all the interests that he has except a right of redemption, see Chiranji Lal v. Bhagwan, 8 IC 826.

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(IN) Poonam Pradhan Saxena : Property Law 11. Dhandappa v. Kasabai, (1948) Nag 936. 12. Achhaibar Singh v. Rajmati, AIR 1929 All 483; Hindustan Ideal Insurance Co. v. P. Satteyya, AIR 1961 Andh Pra 183. 13. Lallu Singh v. Rama Nandan, AIR 1930 All 136 (FB). 14. Arulayi v. Jagdeesiah, AIR 1964 Mad 122 [LNIND 1963 MAD 65]. 15. Ma Gun v. Maung Lu Gal, 85 IC 223; Perumal Konar v. Muruthanayagam, AIR 1933 Mad 433. 16. Balwant Rao v. Tulsa, AIR 1937 Mad 225. 17. Public Charges include payment of municipal taxes and government revenue, see Ahmedabad Municipality v. Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]. 18. See The Transfer of Property Act, 1882, s. 65(c). 19. Sanagapally Lakshmayya v. Intoori, (1903) ILR 26 Mad 385; Po Due v. KMITSCHETTY, 51 IC 574. 20. Balkrishna Muhahshet v. Vishvanath, (1895) ILR 19 Bom 528. 21. A mortgagee in possession is to pay the public charges, see The Transfer of Property Act, 1882, s s. 65(c), 76(c). 22. See The Transfer of Property Act, 1882, s. 72(b). 23. Syed Ibrahim v. Armugathayee, (1915) ILR 38 Mad 18. 24. Srinivasa Chari v. Gnanaprakasa, (1907) ILR 30 Mad 67. 25. Subbiah v. Ram Reddi, (1916) ILR 39 Mad 959. 26. Kannya Loll v. Nistoriny, (1884) ILR 10 Cal 443; Vithal Narayan v. Shriram Savant, (1905) ILR 29 Bom 391; Machnaughten v. Bhikaree, (1878) 2 Cal LR 323. 27. Radha Churn v. Parbuttee Churn, (1876) 25 WR 51. 28. Singjee v. Thiruvengadam, (1890) ILR 13 Mad 192. 29. Gauri Shanker v. Bhairon, AIR 1926 Oudh 207. 30. See The Transfer of Property Act, 1882, s. 65A(1). Prior to the enactment of this section (1 April, 1930) such a lease was not binding on the mortgagee, or any one claiming through him unless the mortgagee gave the consent, see Modan Mohan Singh v. Raj Kishore, (1916) 21 Cal WN 88; MPMS Firm v. Ko Pyu, AIR 1932 Rang 113. 31. Niader Singh v. Ramchandra, AIR 1935 All 511; Ali Hasan v. Dhirja, (1881) 4 All 518; Chunni v. Thakur Das, (1876) ILR 1 All 126. 32. Trent v. Hunt, (1853) 9 Ex 14

.

33. Radha Pershad v. Monohur, (1881) ILR 6 Cal 317. 34. Raghunanadan Prasad v. Ambika, (1907) ILR 29 All 679; Paya Matathil v. Kovamel, (1896) ILR 19 Mad 151. 35. Raja Kamakshya Narain Singh v. Chohan Ram, AIR 1952 SC 401 [LNIND 1952 SC 56]; Dev Raj Dogra v. Gyan Chand Jain, AIR 1981 SC 981 [LNIND 1981 SC 143]. 36. A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings exceeds by one-half, the amount for the time being due on the mortgage. 37. K. Kunhambu v. Syndicate Bank Manipal, AIR 1987 Kant 40 [LNIND 1986 KANT 57]. 38. Bhagwan Dei v. Secretary of State, (1902) PLR 124. 39. Punnayya v. Venkatappa, AIR 1926 Mad 343. 40. Aiyappa v. Kuppusami, (1905) 28 Mad 208. 41. Tulsi Ram v. Munna Koer, AIR 1937 Ouhd 146; Ram Asray Prasad Choudhary v. C.G. Akins, AIR 1938 Pat 189; Mallappa v. Shivappa, AIR 1950 Bom 71 [LNIND 1949 BOM 38]. 42. Faquira v. Jiwan Singh, AIR 1947 All 240. 43. Mangru v. Tarakeshwar Nath, AIR 1967 SC 1300. 44. Sugan Chand v. Dina Nath, AIR 1980 Raj 121. 45. Ladu Chimaji v. Babaji, (1883) ILR 7 Bom 532. 46. Bhalubhai Jethabhai Shah v. Chhaganhai Bamanbhai, AIR 1991 Guj 85 [LNIND 1990 GUJ 100].

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(IN) Poonam Pradhan Saxena : Property Law 47. The mortgagee may bind himself not to enforce his security without giving a notice on the day after cultivating season, see Rarichan v. Mankalal, AIR 1923 Mad 553 [LNIND 1922 MAD 235]. 48. Ram Sarup v. Gaya Prasad, AIR 1932 Oudh 178; Velu Rungaswami v. Bal Krishna, (1902) 12 Mad LJ 366. 49. Subbiah Chetty v. Kuppammal,(1916) 31 Mad LJ 437. 50. Rarichan v. Mankalal, AIR 1923 Mad 553 [LNIND 1922 MAD 235]. 51. William v. Morgan, (1906) 1 Ch 804. 52. Nilcomal Pramanick v. Kamini, (1893) ILR 20 Cal 269; Durga Prosad v. Mario Galstaun, AIR 1955 Cal 194 [LNIND 1954 CAL 135], Iin such cases, the mortgagee can foreclose at any time; Chengiah v. Pichayya, (1907) 17 Mad LJ 177; Perumal v. Alagirisami, (1897) ILR 20 Mad 245, 248; see also Barkat-un-nissa v. Mahbub Ali, (1920) ILR 42 All 70. 53. Hanmantram Sadhuram v. Bowles, (1884) ILR 8 Bom 561; Nettakaruppa v. Kumarasami, (1899) ILR 22 Mad 20; Nilkhanta Balwani v. Vidya Narsinhgh Bharati, AIR 1930 PC 188. 54. Kamod v. Raja Raghoji,(1902) 15 CPLR 78; Kannu v. Natesa, (1891) ILR 14 Mad 477. 55. Yeo Htean Sew v. Abu Jaffar, (1900) ILR 27 Cal 938; Perumal Ayyan Valagiri Sami, (1897) ILR 20 Mad 245. Such a condition benefits her mortgagee; see Subbane v. Kirshna Iyengar, AIR 1962 Mys 5; Bappu v. Venkatachalapatty Ayyar, AIR 1934 Mad 227 [LNIND 1933 MAD 43]; Panchan v. Ansar Hussain, AIR 1926 PC 85; Lasa Din v. Dulab Kaur, AIR 1932 PC 207. 56. Raghubir Singh v. Kumar Rajendra Bahadur Singh, AIR 1933 Oudh 237. 57. Abdul Rahman v. Sheo Dayal, AIR 1931 All 152. 58. In absence of an agreement, the mortgagee is not bound to accept money in installments, see Behari Lal v. Ram Ghulam, (1902) ILR 24 All 461. 59. Kamidan v. Mehgraj,(1915) 11 Nag LR 153; Rammayya v. Venkata, (1903) 13 Mad LJ 2. 60. Vasudeva v. Srinivasa, 34 IA 186. 61. Sundermal v. JC Galstaun,(1932) 36 Cal WN 109. 62. Jaswant Kaur v. Des Raj, AIR 2010 HP 61 [LNIND 2009 HP 90]. 63. MALM Chettiar Firm v. Maung Po Hoy, AIR 1935 Rang 239. 64. Papamma Rao v. Pratap Korkonda, (1896) ILR 19 Mad 249. 65. Chathu v. Kunjan, (1889) ILR 12 Mad 109; Umda v. Umrao Begum, (1889) ILR 11 All 367. 66. Damodara Shanbhvgue v. Chandappa Pujari, AIR 1933 Mad 613. 67. Umda v. Umrao Begum, (1889) ILR 11 All 367; Chathu v. Kundan, (1889) ILR 12 Mad 109. 68. Sarojni Prabhu v. Papikutty Adiesian, AIR 2007 Ker 44 [LNIND 2006 KER 703].

End of Document

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 4

CHAPTER 4 Of Mortgages of Immovable Property Partial Foreclosure A mortgage interest cannot be severed without the consent of all the mortgagees and mortgagors,69 as it is inequitable to split the security70 even in case of division of equity of redemption71 or its purchase without the consent of other co-mortgagees.72 Acquisition by way of purchase,73 inheritance,74 or otherwise, of the equity of redemption is different and enables them to recover the balance of debt against the residue of the property.75 Integrity can be broken by one of the mortgagee suing for his own share of the mortgage debt.76 When he obtains a decree for his share, other mortgagees may recover their shares when the mortgagor does not object.77 A mortgagee purchasing part of the property mortgaged at an execution sale on his mortgage decree splits his security, and can realise a proportionate part of the debt from a purchaser of another part who has not been made a party.78 Where whole of the property has been brought to sale; if a part-mortgagee sues to recover his share of debt, it is an admission of severance of security.79 Payment to one mortgagee does not operate as a severance of security and co mortgagee can recover his share of debt against whole of the security.80 A merger may occur even after a final decree of sale.81 The mortgagee may exempt some portion of the mortgaged property from the suit and realise the whole debt from the remainder.82 When the mortgagee sues without making one of the heirs of mortgagor a party, a puisine mortgagee’s suit for sale is maintainable.83 The mortgagee can sue on an earlier mortgage if the mortgagor executes a new mortgage that is invalid, but not because of any fault of the mortgagee; part of the consideration for which was the old debt due under previous mortgage.84 A prior mortgagee is to redeem a subsequent mortgage if both prior and subsequent mortgagee obtain decrees, and in execution, purchase mortgaged property.85 MORTGAGEE WHEN BOUND TO BRING ONE SUIT ON SEVERAL MORTGAGES

Section 67A. Mortgagee when bound to bring one suit on several mortgages.—

(IN) Poonam Pradhan Saxena : Property Law

A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.

A MORTGAGEE IS BOUND TO BRING ONE SUIT ON SEVERAL MORTGAGES WHEN (i) A mortgagee who holds two or more mortgages; (ii) executed by the same mortgagor;86 (iii)in respect of each of them he has a right to obtain the same kind of decree under s. 67; (iv)he sues to obtain such decree on any one of the mortgages, in the absence of a contract to the contrary,87 (v) be bound to sue on all the mortgages in respect of which the mortgage-money has become due.88 This rule is primarily for the benefit of the mortgagor, and he may waive its benefit, and such a waiver would be implied by his failure to object in good time.89 A husband and wife are not one entity. When they own separate property and mortgage separately and jointly, a suit to enforce the joint mortgage does not bar a separate suit by either Where the first mortgage is by two brothers, and the second mortgage of a part of the same property by one brother; a suit to enforce the first mortgage does not bar a suit to enforce the second.90 Where there is a first mortgage by one co-sharer of a one-seventh share and second mortgage by all the sharers of the whole property, the second is an entirely different transaction and separate suits can be brought.91 If the suit on all mortgages cannot be brought in the same court, the rule does not apply.92 RIGHT TO SUE FOR MORTGAGE-MONEY

Section 68. Right to sue for mortgage-money.— (1) The mortgagee has a right to sue for the mortgage- money in the following cases and no others, namely:— (a) where the mortgagor binds himself to repay the same; (b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security Page 2 of 75

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is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so; (c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor; (d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor: Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.

RIGHT TO SUE FOR MORTGAGE-MONEY The mortgagee has a right to sue for the mortgage-money only (i) Where the mortgagor binds himself to repay the same;93 or (ii) Where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed; or (iii)The security is rendered insufficient, and (iv)The mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so; or (v) Where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor; or (vi)Where, the mortgagee being entitled to possession of the mortgaged property the mortgagor fails to deliver the same to him; or (vii) To secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor. The provisions are of an enabling nature and do not preclude the mortgagee from suing a trespasser who has possession.1 To attract this rule, it is necessary that the suit should be for recovery of mortgage money and the suit must be by a mortgagee against the mortgagor for the mortgage money, on the basis of the mortgagor’s personal covenant.2 Where, after finding that the mortgagor has no title to one of the properties mortgaged, the Page 3 of 75

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mortgagee leases it back to the mortgagor; recovers possession of the other properties, and continues in possession, he acquiesces in the diminution of the security, and can not sue for the mortgage money under this rule.3 Personal Liability of the Mortgagor Where the mortgagor binds himself personally to repay the debt, it becomes a personal covenant, but where it is only his property that is kept as a security, the mortgagee cannot sue him but can proceed against the property. A loan involves a personal liability,4 express or implied only in a simple mortgage,5 or in an English mortgage. Where the mortgagor binds himself to pay only out of the property mortgaged or a particular fund,6 there is no personal liability. The same rule applies in case of a mortgage by conditional sale7 or in a usufructuary mortgage,8 where it can be created only by an expressed or clearly implied covenant.9 Whether the covenant binds the mortgagor or not is a matter of construction.10 Express covenants take many forms.11 In case of an equitable mortgage, the mortgagor binds himself personally to pay the mortgage money12 and in an anomalous mortgage, the right of the mortgagee to sue on a personal covenant is not affected by his right to enforce his right to recover possession.13 A provision that the mortgagee can recover the interest for the first five years in any way they like is a personal covenant,14 and would impose a personal obligation to pay, on the mortgagor. Similarly, where by the terms of the deed, the mortgagee is to repay himself the interest out of the rents and profits, but after the expiry of a certain period the mortgagor is bound to pay the entire sum as it is a personal covenant,15 but a covenant giving an option of repaying16 or expressing right of redemption17 is not a personal covenant. Limitation period If the mortgage money is payable on demand, the time for its payment runs from the date of the mortgage bond,18 otherwise, it is three years and is to be calculated not from the date when the mortgage money is payable,19 but from the date of deprivation.20 Personal Liability not Enforceable against Purchaser from Mortgagor Personal covenants do not run with the land and a purchaser of the equity of redemption is not entitled to a personal decree;21 but the mortgagor continues to be liable for the payment of the mortgage debt after he has assigned the equity of redemption, but if he is sued for payment, he acquires a new right to redeem.22 The assignee is liable only by entering into a fresh covenant with the mortgagee.23 Similarly, a purchaser of a portion of the mortgaged property who retains a part of the sale consideration agreeing to pay it towards the discharge of the mortgage debt, is not liable personally to the mortgagee.24 There is, however, an implied covenant by the purchaser of the equity of redemption to indemnify the mortgagor.25 No personal liability can exist where there is no privity of contract as between the first and second mortgagees even in respect of money left with the latter to pay the debt of the former.26 Liability not Effected for Want of Registration Page 4 of 75

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Personal liability is not affected by want of registration27 or of attestation,28 not even where it is illegal.29 Accidental Destruction of Security When the security is destructed by diluvion30 or by fire31 the mortgagee is entitled to sue for the debt. Similarly, if the mortgaged property is acquired under the Land Acquisition Act32 or a mortgagor in possession as lessee of the mortgagee gets his rent reduced by the Revenue Court33 the mortgagee can file a suit for his debt. He can also put up a similar claim if the property is substantially reduced by acts like, the removal and sale of the roofing of a factory materially affects the security34 or sale of the mortgaged property in execution by a prior mortgagee35 or under the provisions of the Evacuee Property Act, 1950.36 It is open to the mortgagee to relinquish his security and sue only on the personal covenant of the mortgagor to pay,37 but he cannot, on receipt of some money from the assignee of the equity of redemption, give up the security and sue the heirs of the mortgagor on the personal covenant.38 Before suing, he may require the mortgagor to furnish another sufficient security39 and allow him a reasonable time40 for that purpose. If the land is wholly or partially destroyed by diluvion, the mortgagee has a right to sue for the mortgage money. A compromise by the mortgagor with the person disputing his title cannot be regarded as a wrongful act of default within the meaning of this rule.41 Destruction of Property by Wrongful Act of Mortgagor Where the mortgagee is deprived of his security wholly or in part by the wrongful act or default of the mortgagor,42 his heirs43 or his transferees,44 the mortgagee may sue the mortgagor for the mortgage money.45 This rule applies equally if there is no personal covenant or if the remedy under the personal covenant is time-barred.46 The mortgagee can also sue the mortgagor personally in the following cases: (i) If the mortgagor does not pay off a prior encumbrance when it becomes due;47 (ii) The mortgagor mortgages joint family property without authority;48 (iii)Where he does not disclose a prior mortgage;49 (iv)When he knows that the property mortgaged is not transferable;50 (v) If he commits waste; (vi)Where the mortgaged property was allowed to fall in disrepair so as to diminish its letting value;51 or (vii) When the mortgagor sold the property by a registered deed to a vendor who has no notice of the unregistered mortgage, and the mortgagee was deprived of his security.52

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Mere suspicion on part of the mortgage is not sufficient;53 and in cases where the mortgagor included in the security property that was not his own, the remedy is by action for deceit and not for a personal decree.54 The default or wrongful act of the mortgagor must be anterior to the deprivation, and therefore, the mortgagor is not liable if strangers later dispossess the mortgagee,55 but the mortgagee has no remedy when he is deprived of his security by his own default.56 A sale by the mortgagor of the equity of redemption, whether voluntary57 or enforced by an execution creditor,58 is not a wrongful act or a default. Failure of the Mortgagor to Deliver Possession The mortgagor is bound to deliver possession to the usufructuary mortgagee59 or where he is under a contract bound to do it, e.g., in an anamalous mortgage and to authorise the mortgagee to continue in possession until payment of the mortgage money by means of a statutory right60 irrespective of any express covenant.61 If the mortgage deed provided for a personal contract to pay, the mortgagee can choose that or the mortgage money62 or for possession63 or may exercise this remedy.64 A decision to proceed under this rule does not constitute an abandonment of the mortgagee’s right to sue under the personal covenant, but it may amount to an election to sue for the mortgage money, and thus a waiver of the right to obtain possession.65 If he omits to sue under this rule and the remedy is time barred, then, in absence of a personal covenant in the usufructary mortgage, the mortgagee has no other cause of action.66 If the mortgagee fails to obtain possession from the mortgagor on the execution of the mortgage,67 or, during the term of the mortgage is dispossessed either by the mortgagor,68 his co-sharer,69 by title paramount,70 by a prior encumbrancer, or, he himself purchases the property at a sale enforced by that encumbrancer,71 or for any other unjustified reason such as, the mortgagor being in possession as the mortgagee’s lessee, wrongfully holds over,72 or where the mortgagor to whom the property has been leased back by the mortgagee commits a breach of the conditions of the lease, the mortgagee can file a suit to recover the debt.73 When the mortgagor gave two successive usufructuary mortgages,74 or when the mortgagee could not get possession of some plots because they did not belong to the mortgagor,75 or when the mortgagor deprived a usufructuary mortgagee of the rents and profits76 or dispossessed from a part of the mortgaged property;77 the mortgagee may recover the debt by personal suit.78 But a mortgagee of the undivided share of a coparcener is not entitled to recover the mortgage money under the section.79 Dispossession by a Person Other than Mortgagor If the mortgagee is dispossessed by a person other than the mortgagor such as a transferee of the mortgagor, such transferee or a co-sharer may also be liable, and a usufructuary mortgagee so dispossessed is entitled to recover the mortgage money. If dispossession is by a subsequent simple mortgagee in execution of a decree in a suit brought by the latter and in which he was Page 6 of 75

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not made a party, he can sue not merely for the recovery of his mortgage-money, but also for possession of the mortgaged property.80 If the mortgagee is dispossessed by a trespasser, he is entitled to sue him for possession,81 but where after creating a mortgage with possession, the mortgagor obtains a lease of the property from the mortgagee, where no period is fixed for the lease and the mortgagor then sells the property and hands over possession to the third person, the mortgagee cannot bring a suit for possession against the transferee, treating him as a trespasser.82 Dispossession due to Mortgagee’s Default The mortgagee is not entitled to relief under this clause if he is dispossessed by his own default83 and cannot repudiate the mortgage only because he is dispossessed of part of his security.84 But a mortgagee can repudiate the mortgage if the dispossession is due to a neglect to pay the government revenue resulting in sale of land for arrears of assessment,85 or omission to preserve his security by defending a suit by a subsequent mortgagee,86 failure to file a suit for the recovery of possession when his claim proceedings are disallowed,87 acquiescing in his dispossession,88 or failure to enforce his remedy when he does not get possession of the whole of the property89 unless there is an express stipulation to that effect.90 Claim for Interest and Damages A usufructuary mortgagee who could not obtain possession owing to the fault of the mortgagor1 or is dispossessed,2 is entitled to not only the payment of the debt but also interest, by way of damages, for the unexpired period of the mortgage. However, at the time of redemption he cannot claim, by way of interest, the profits of the property which has not been delivered to him.3 Discretion of the Court Unless the mortgagee abandons his security4 and, if necessary, re-transfers the mortgaged property,5 the court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it. The rule applies only to valid6 mortgages upon which a suit could be filed in that court.7 A suit under this rule is a suit by the mortgagee for the mortgage money.8 A usufructuary mortgagee sues on title to recover possession,9 and in such a suit, no question as to the amount due on the mortgage would arise.10 A usufructary mortgagee has no remedy either by foreclosure or by sale in case of dispossession and therefore he can only be given a simple money decree11 or may also sue for possession.12 A mortgagee who abandons his security is competent to bring a simple suit for the money advanced by him,13 but a release of security is no bar to the sale of the mortgaged property in execution of the decree.14 If the decree is for the mortgage money, he cannot bring the mortgaged property to sale15 except in execution of

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the decree for costs.16 POWER OF SALE WHEN VALID

Section 69. Power of sale when valid.— (1) A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property or any part thereof, in default of payment of the mortgage-money, without the intervention of the court, in the following cases and in no others, namely:— (a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government, in the Official Gazette; (b) where a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and the mortgagee is Government; (c) where a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the towns of Calcutta, Madras, Bombay, or in any other town or area which the State Government may, by notification in the Official Gazette, specify in this behalf. (2) No such power shall be exercised unless and until— (a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or (b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due. (3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power. (4) The money which is received by the mortgagee, arising from the sale, after discharge of prior ecumbrances, if any, to which the sale is not made subject, or after payment into court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to Page 8 of 75

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the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. (5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.

POWER OF SALE The power of the mortgagee to sell the property referred to in here is the power to sell it without the intervention of the court. It is different from the right of a simple mortgagee to cause the property to be sold with the help of the court. This power can be exercised if: (i) the mortgage is an English mortgage;17 (ii) where a power of sale without the intervention of the court is expressly conferred18 on the mortgagee by the mortgage-deed and the mortgagee is the government; (iii)there is a default of payment of the mortgage-money; (iv)neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the state government in the Official Gazette; and (v) the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situated within the towns of Calcutta, Madras,19 Bombay20 or in any other town or area which the State Government may, by notification in the Official Gazette, specify21 in this behalf.22 A party, challenging the sale must state the grounds on which the sale should be avoided.23 Conditions for Exercise of Power There are three conditions that are mandatory for the exercise of this power. These conditions cannot be varied even by a contract to the contrary: (i) such power of sale can be exercised after notice in writing requiring payment of the principle money has been served on the mortgagor, or on one of several mortgagors; and (ii) default has been made in payment of the principal money, or of part thereof, for three months after such service;24 or (iii)some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due. The first requirement is that a notice must be served on the mortgagor. This provision as to notice is necessary, for a power of sale without notice is oppressive and may enable the Page 9 of 75

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mortgagee at any time to extinguish the equity of redemption.25 The period of three months fixed by the Act cannot be curtailed by the terms of the deed.26 A notice giving the mortgagor the prescribed period of warning27 is sufficient and no specific form of notice is required. Notice given to only one out of several mortgagors, is valid,28 but a notice to the assignee of a portion of the mortgaged property is not sufficient.29 If the mortgagee has given a three months’ notice for default of principal and interest, he cannot sell for arrears of interest before the expiry of that period,30 and a power of sale in the mortgage deed limited to default in payment of principal, does not enable the mortgagee to sell for default in the payment of interest.31 If no time is fixed for payment there can be no default till a demand is made.32 Where interest amounting to at least Rs. 500 has been due for three months, power may be exercised before the expiry of the period allowed for redemption.33 A long delay in selling after the expiry of the period of the notice does not make a fresh notice necessary.34 If the mortgage money is payable by installments, the power of sale is exercisable when an installment of the mortgage money has become due.35 A mortgagee who has wrongly exercised his power of sale has no right to personal recovery or the balance of the mortgage money.36 Mortgagee to take Reasonable Care The power of sale is for the benefit of mortgagee.37 He can exercise it at his own convenience, yet, at the same time, this power has to be exercised by him equitably so that he can realise his debt without causing much loss to the mortgagor also. He must try and get the best price for the property. The court normally refrains from inquiring into his motives,38 but property resold shortly after the sale by the mortgagee for a substantially higher price would be viewed with suspicion. A mortgagee is to take reasonable care to obtain a proper price or to accept the highest bid at an appropriately publicised auction sale,39 held in reasonable conditions.40 Where the security consists of several items, the mortgagee, while selling it, must not deliberately destroy the value of the whole or the set. Thus, he cannot sell seven of a set of eight antique chairs.41 Restraint on Mortgagee’s Exercise of the Power A mortgagee can be prevented from exercising the power of sale if the mortgagor pays the amount claimed in court,42 or if the mortgagee denies the title of a puisne encumbrancer who has offered to redeem.43 The mortgagor must offer to redeem before he can bring the mortgagee before the court as the maxim ‘he who seeks equity must do equity’ applies,44 and he cannot defeat the power of sale by setting up a prior mortgage which he has paid off as a shield against the puisne mortgagee exercising the power45 or by claiming lis pendens.46 A mortgagor, however, may obtain an injunction to restrain a sale if the mortgagee is acting in a fraudulent and improper manner orcontrary to the terms of the mortgage deed.47 A mortgagee has a right to bring the property to sale out of court.48 The mortgagee may not buy the property either himself, with other, by an agent49 or his nominee.50 A sale to any officer concerned in the conduct of the sale51 is void. Such a transaction that is not a valid exercise of the power of sale does not prevent the mortgagor Page 10 of 75

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from redemption unless he has assented to the purchase.52 Protection of Purchaser When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power. The purchaser need not make any enquiries, and an irregularity or impropriety in the exercise of the power of sale does not affect the title of an innocent purchaser53 and confines the remedy of the mortgagor to a suit for damages,54 unless, there is no express power of sale without the intervention of the court in the mortgage.55 However, if he had a notice of it, this makes him a party to the transaction and he is not protected;56 for e.g., where he knows that notice is not given.57 He would nevertheless be protected if he is unaware of the irregularity in the notice,58 or if want of notice had been waived by the mortgagor.59 Effect of Sale The right of redemption does not come to an end merely by putting the property to auction,60 but a sale destroys it61 and if the mortgagor continues in possession without the permission of the purchaser, such possession is adverse.62 The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into court of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgagee-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. With respect to the residue after making all the payments, the mortgagee is a trustee for the mortgagor63 and is charged interest on this residue from the date of sale to date of payment to the persons interested.64 Subsequent encumbrancers are to be paid by the mortgagor.65 Remedy of the Mortgagor In case of irregularity in the exercise of the power of sale the mortgagor’s can sue for damages against the mortgagee,66 in the absence of fraud.67 In case of fraud he can obtain an injunction to stay the sale68 but a sale for mere inadequacy of price69 will not be set aside. APPOINTMENT OF RECEIVER

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Section 69A. Appointment of receiver.— (1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof. (2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee. If no person has been so named, or if all persons named are unable or unwilling to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the court for the appointment of a receiver, and any person appointed by the court shall be deemed to have been duly appointed by the mortgagee. A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the court on application made by either party and on due cause shown. A vacancy in the office of receiver may be filled in accordance with the provisions of this subsection. (3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee. (4) The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose of, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee, in accordance with the provisions of this section. (5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not. (6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent, on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five per cent on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose. (7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or Page 12 of 75

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damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature. (8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely:— (i) in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property; (ii) in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver; (iii)in payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee; (iv)in payment of the interest falling due under the mortgage; (v) in or towards discharge of the principal money, if so directed in writing by the mortgagee, andshall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property. (9) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (3) to (8) inclusive may be varied or extended by the mortgage-deed, and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said subsections. (10) Application may be made, without the institution of a suit, to the court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the court may think fit. The costs of every application under this sub-section shall be in the discretion of the court. (11) In this section, “the Court” means the court which would have jurisdiction in a suit to enforce the mortgage.

APPOINTMENT OF RECEIVER In order to ensure fair realisation of the debt, without causing much harm to the mortgagor, law provides for the appointment of a receiver, who is the representative of the mortgagor but is accountable to the mortgagee. According to s. 69A, a mortgagee70 who has a right to Page 13 of 75

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exercise power of sale is entitled to appoint71 a receiver of the income of the mortgaged property or any part thereof. This power can be exercised only in writing, and should be signed by mortgagee or on his behalf. Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee. If no person has been so named, or if all persons named are unable or unwilling to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the court for the appointment of a receiver, and any person appointed by the court shall be deemed to have been duly appointed by the mortgagee.72 Removal of Receiver A receiver may at any time be removed73 in writing, signed by or on behalf of the mortgagee and the mortgagor, or by the Court on application made by either party and on due cause shown. Receiver an Agent of the Mortgagor A receiver74 shall be deemed to be the agent75 of the mortgagor;76 and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage-deed otherwise provides77 or unless such acts or defaults are due to the improper intervention of the mortgagee. Powers of the Receiver The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose off, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee in accordance with the provisions of this section.78 A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not. Remuneration of the Receiver The receiver shall be entitled to retain, out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five percent, on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five percent on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose. Duty of Insurance

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The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof, being of an insurable nature. Application of Money The receiver shall apply all money received by him in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property; or in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver; or in payment of his commission, and of the premiums on fire, life or other insurances, if any, property payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee; or in payment of the interest falling due under the mortgage; or in or towards discharge of the principal money, if so directed in writing by the mortgagee, and shall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver; or who is otherwise entitled to the mortgaged property. Application for the Opinion of the Court Application may be made, without the institution of a suit, to the court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the court may think fit. The costs of every application under this sub-section shall be in the discretion of the court. Receiver Appointed by the Court The court has the power to appoint a receiver in the case of an English mortgage79 or a mortgage by deposit of title deeds,80 if the property is in jeopardy or insufficient to pay the encumbrances,81 or if the interest is in arrears.82 A Receiver, appointed under The Code of Civil Procedure, 1908, O. XL, R. 1 is an officer of the court, and holds the property for the benefit of all parties, and is not the agent of the mortgagor, nor can the Receiver be removed by the Insolvency Court.83 A receiver appointed by the court in a mortgagee’s suit is entitled to apply to the court for direction as to the management of the mortgaged property but not on any collateral matter.84 If the mortgagor becomes insolvent, the Official Assignee cannot claim the profits in the hands of the receiver in preference to the mortgagee.85 If the mortgagor’s interest is attached and sold in execution of a money decree, the purchaser is not entitled to the income of the property realised by the receiver before the sale.86 If a mortgagee’s receiver of the income appointed under this section before the suit is also appointed receiver of the Page 15 of 75

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property by the court, he becomes an officer of the court and ceases to be the agent of the mortgagor.87 An executing court has jurisdiction to appoint a receiver at the instance of a mortgagee.88 ACCESSION TO MORTGAGED PROPERTY

Section 70. Accession to mortgaged property.— If, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession. Illustrations (a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase. (b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security, B is entitled to the house as well as the plot.

GENERAL PRINCIPLE Section 70 deals with a mortgagee’s right to accessions, and s. 63 deals with the right of the mortgagor to these accessions. Accessions as explained under notes to s. 63 are additions or improvements to the mortgaged property and are natural or acquired. Section 70 provides that if, after the date of a mortgage,89 any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary,90 shall, for the purposes of the security, be entitled to such accession. Natural accessions form part of the mortgagee’s security, and revert to the mortgagor upon redemption.1 As regards acquired accessions, it would be a question of fact in each case.2 If the mortgagor builds on the property mortgaged, the buildings form part of the mortgagee’s security3 as an accession to the property. Instances of accessions to which the mortgagee is entitled: (i) land formed by alluvion or dilluvion;4 (ii) machinery fixed by bolts and nuts to the concrete floor of a building;5 (iii)an electric installation set up by the mortgagor in a mortgaged factory;6 (iv)removal of a shed and building a small house on the land mortgaged;7 Page 16 of 75

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(v) purchase of government trees standing on the mortgaged land;8 (vi)an increase of interest or enlargement of the estate;9 (vii) a puisne mortgagee acquiring an occupancy right by surrender from the mortgagor;10 (viii) the increase in value of the estate when the mortgagor discharges a prior encumbrance existing at the date of the mortgage;11 (ix)a sub-mortgagee acquiring an equity of redemption;12 (x) an increase in shares of mortgagor by death of coheirs in a Muslim family,13 or in a Hindu coparcenory;14 or (xi)acquisition of freehold rights in property where originally the mortgagor had only leasehold rights in it.15 The following will not be termed as accessions benefiting the mortgagee: (i) a mortgagee in possession encroaching upon the other land of the mortgagor;16 (ii) a mortgagee in possession encroaching upon the adjoining waste land;17 (iii)a fresh grant of adjoining land;18 (iv)where only the building is mortgaged (and not the site), the site cannot be deemed to be an ‘accession’ to the mortgaged property.19 If, after the mortgage, the mortgagor sells a plot of the land mortgaged to the mortgagee and then buys it back, the plot is again subject to the mortgage.20 RENEWAL OF MORTGAGED LEASE

Section 71. Renewal of mortgaged lease.— When the mortgaged property is a lease and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.

GENERAL PRINCIPLE When the mortgaged property is a lease, and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease. If a tenant mortgagor allows his landlord to obtain a collusive Page 17 of 75

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decree for rent and to purchase the holding, the property in the hands of the landlord is subject to the mortgage.21 The deposit of a deed of lease of which the term has expired operates as a mortgage by deposit of title deeds when the term is renewed.22 RIGHTS OF MORTGAGEE IN POSSESSION

Section 72. Rights of mortgagee in possession.— A mortgagee may spend such money as is necessary— *[*

* *] (b) for the preservation of the mortgaged property from destruction, forfeiture or sale; (c) for supporting the mortgagor’s title to the property; (d) for making his own title thereto good against the mortgagor; and (e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease,

and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and, where no such rate is fixed, at the rate of nine per cent per annum: Provided that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title.

Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property, and the premiums paid for any such insurance shall be added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent per annum. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured. Nothing in this section shall be deemed to authorise the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorised to insure.

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GENERAL PRINCIPLE This section was formerly available only to a mortgagee in possession. It was amended in 1929 and the rights are now available to all kinds of mortgagees. A mortgagee may spend such money as is necessary:23 (i) for the preservation of the mortgaged property from destruction, forfeiture or sale; (ii) for supporting the mortgagor’s title to the property;24 (iii)for making his own title thereto good against the mortgagor, and when the mortgaged property is a renewable leasehold; (iv)for the renewal of the lease;25 and (v) may, in the absence of a contract to the contrary,26 add such money to the principal money,27 at the rate of interest payable on the principal,28 and, (vi)where no such rate is fixed,29 at the rate of nine percent per annum.30 The mortgagor is the owner of the property and it is primarily his duty to preserve it and to protect his title. It is only on his default to take proper and timely steps in this behalf that the mortgagee is entitled to spend money. Where Property is Insurable Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary,31 insure32 and keep insured against loss or damage by fire, the whole or any part of such property, and the premiums paid for any such insurance shall be added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine percent per annum. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured.33 Preservation of Property from Destruction, Forfeiture or Sale If the mortgagee is in possession of the property, he is under an obligation to keep the property in proper shape. He can use the rent for this purpose. In default, the mortgagor can spend the money out of his own pocket and deduct or claim reimbursement from the mortgagee later. The mortgagee, therefore, can claim money if it is spent on payment of public charges to prevent the property from a possible forfeiture or sale,34 or a sale at the instance of a puisine mortgagee35 from the mortgagor,36 but he cannot claim the cost in the following cases. (i) where money is spent on constructing a new upper storey when rebuilding a portion of a house that had fallen down;37 (ii) of a sale of an equity of redemption;38

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(iii)of amount paid to stay a sale, subsequent to the mortgage, in execution of a money decree;39 or (iv)of a sale for recovery of cesses for which the mortgage right could not be sold.40 Costs incurred in Protecting Mortgagor’s Title Where mortgagor fails to take proper and timely steps; and the mortgagee, in defending a suit disputing his title spends money,41 he is entitle to add to his security the costs of proceedings in which he is properly made a party, in respect of his encumbrance.42 Defending Mortgagee’s Title against the Mortgagor A mortgagee is entitled to defend his own title against the mortgagor and spend money for this purpose. This general rule that a mortgagee is entitled to add the costs, charges and expenses of a suit to enforce the mortgage43 or defend his title to his security applies notwithstanding that the mortgagor has obtained leave to sue as an indigent.44 Thus, costs would be added if a suit is brought by a mortgagee against the mortgagor and a puisne mortgagee, but a puisne mortgagee is not to pay the costs of the suit.45 He is entitled to costs of defending an unsuccessful action for redemption by the mortgagor46 or of prosecuting a suit against the mortgagor for establishing his title as a mortgagee,47 or a suit against tenants for the arrears of rent.48 The costs are added to the security, and do not bind the mortgagor personally unless his conduct has led to such costs being incurred.49 An ambiguous decree does not impose a personal liability on the mortgagor.50 RIGHT TO PROCEEDS OF REVENUE SALE OR COMPENSATION ON ACQUISITION

Section 73. Right to proceeds of revenue sale or compensation on acquisition.— (l) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such on property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale proceeds remaining after payment of the arrears and of all charges and deductions directed by law. (m)Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894); or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.

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(n) Such claims shall prevail against all other claims except those of prior encumbrancers, and may be enforced notwithstanding that the principal money on the mortgage has not become due.

GENERAL PRINCIPLE The section lays down the rule for the benefit of the mortgagees. It provides that the mortgagee is not only entitled to the mortgaged property but is also entitled to anything that is substituted for it. It says: (i) Where the mortgaged property or any part thereof or any interest therein; (ii) is sold owing to failure to pay arrears or revenue or other charges of a public nature or rent due in respect of such property; and (iii)such failure did not arise from any default of the mortgagee; (iv)the mortgagee shall be entitled to claim payment of the mortgage money in whole or in part out of any surplus of the sale proceeds remaining after payment of arrears and of all charges and deductions directed by law. Sale in Default of Payment of Revenue A sale free of encumbrances nullifies the mortgage51 and a mortgagee has a right to payment out of surplus sale proceeds; even if the mortgage is executed after default in payment of revenues52 but if the sale does not nullify the mortgage the mortgagee can enforce his lien against the property in the hands of the auction purchaser.53 If part of the property mortgaged is sold at a revenue sale, the mortgagee can follow the mortgaged property in the hands of the purchaser as well as claim payment out of the surplus sale proceeds.54 Where a purchaser having power to annul encumbrances does not do so, the mortgagee may abandon his security and claim payment out of the surplus sale proceeds.55 If the sale is set aside, the interest of the mortgagor is reverted in him and the mortgagee falls back upon his original security.56 Acquisition of Mortgaged Property under the Land Acquisition Act, 1894 Where a mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 or any other enactment for the time being in force, providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of mortgage money in whole or in part out of the amount due to the mortgagor as compensation. Compensation to the Mortgagee The right of the mortgagee to claim compensation57 continues even if he did not claim apportionment under the Land Acquisition Act, 1894.58 The right is personal and cannot be sold under the mortgage decree.59 The claim is also not available to a prospective purchaser Page 21 of 75

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before the sale could be completed.60 If the mortgagee does not exercise his right to claim compensation money before it is withdrawn by the mortgagor, it would not deprive him of his original rights as a mortgagee to enforce his security as against the compensation money.61 But when another land is substituted in lieu of compensation for acquisition, the auction purchaser, in exercise of the mortgage decree, is entitled to enforce his claim against the substituted property.62 An alteration in the mortgagor’s title does not adversely affect the right of mortgagee.63 Default of the Mortgagee If the mortgagee is in possession of the property with sufficient income, it is he who has to pay the revenue, rent and public charges out of the income.64 If the sale is occasioned by his default to pay such charges, though it does not affect the right of redemption,65 but mortgagee is not entitled to payment out of the surplus sale proceeds; and if he purchases the property himself, he is a trustee for the mortgagor,66 and is liable to be redeemed.67 But if the sale is for default of the mortgagor to pay the revenue, and the mortgagor purchases, either himself or benami, he takes it subject to the mortgage;68 and the mortgagee can enforce payment against the property in the hands of the auction purchaser if there is a deficit, in amount due to him.69 The claims of compensation of mortgagee in case of such acquisition shall prevail against all other claims except those of prior encumbrances, and may be enforced notwithstanding the fact that the principal money on the mortgage has not become due.70 Priority in other Cases Where the share allotted to the mortgagor in a partition is subject to a charge for owelty, the charge takes precedence over the mortgage.71 If the sale is subject to a subsequent encumbrance, the mortgagee can proceed against it in case of insufficient sale proceeds.72 In a judicial sale, the right of the puisne mortgagee to the sale proceeds takes priority over that of a money decree holder or an unsecured debtor of the mortgagor,73 and if he is not made a party to the prior mortgagee’s suit he can proceed both against the surplus proceeds and against the property in the hands of the auction purchaser.74 An auction purchaser paying a puisine mortgagee to avert a sale of property is allowed to recover the costs from the mortgagor who has the surplus sale proceeds on a prior mortgagee’s sale.75 Substitution of Security If, by a process of law or by a compelling situation sanctioned by law, the security given to a creditor is changed into something other than the property which constituted the original security, the mortgagee gets rights over the substituted security76 but if the mortgage contains a personal covenant, the substitution of the security does not affect the mortgagee’s remedy on that covenant.77 PARTITION

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Where the mortgage of an undivided share is followed by its partition, the mortgagee has to proceed against the share allotted in severally to his mortgagor;78 and in the absence of fraud or collusion, the co-sharers of the mortgagor would hold their shares free of the mortgage.79 But if as a part of the partition agreement, the coparcener who gets the mortgages share allotted undertakes to pay the mortgage debt, the mortgagee may sue him.80 In such cases, the mortgagee takes the property in the new form it assumes.81 The post partition mortgagee cannot take a larger estate than the mortgagor.82 The rule applies in a transfer of an undivided share and also of a specific item of a joint property.83 In a mortgage of a specific item of joint property by one co-sharer where it is later allotted to another co-sharer, the mortgagee can proceed against the substituted item in the hands of the co-sharer who has created the mortgage.84

Section 74. Right of subsequent mortgagee to pay off prior mortgagee.— [Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39.].

Section 75. Rights of mesne mortgagee against prior and subsequent mortgagees.— [Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39)].

LIABILITIES OF MORTGAGEE IN POSSESSION

Section 76. Liabilities of mortgagee in possession.— When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,— (a) he must manage the property as a person of ordinary prudence would manage it if it were his own; (b) he must use his best endeavours to collect the rents and profits thereof; (c) he must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold; Page 23 of 75

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(d) he must in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money; (e) he must not commit any act which is destructive or permanently injurious to the property; (f) where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgagemoney; (g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported; (h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor; (i) when the mortgagor tenders, or deposits in manner hereinafter provided, the amount for the time being due on the mortgage, the mortgagee must, notwithstanding the provisions in the other clauses of this section, account for his receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of court, as the case may be and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property.

Loss occasioned by his default.— If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure. GENERAL PRINCIPLE The usufructuary mortgagee is subject to certain statutory duties,85 but these duties do not apply till he has taken possession.86 Possession should be relatable to the mortgage,87 and not unrelated to it.88 Mere receipt of rents and profits is not sufficient unless it is to displace the mortgagor from management of the estate.89 A mortgagee is not in possession when the mortgage deed requires the mortgagor to appoint a manager in whom the mortgagee has Page 24 of 75

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confidence90 or when a statutory receiver is appointed91 or where he purchases in execution of a decree for sale on his mortgage.92 A mortgagee may take possession qua mortgagee even when the deed is silent as to possession,1 such as under a foreclosure decree,2 or under the provisions of a debenture trust-deed when the trustees take over the management of a company.3 The duties of the mortgagee under this section are as follows: (i) a duty to manage the property as a person of ordinary prudence; (ii) to collect the rents and profits thereof; (iii)to pay the Government revenue and all other charges of a public nature; (iv)to make such necessary repairs of the property as he can pay for out of the rents and profits thereof; (v) not to commit any act which is destructive or permanently injurious to the property; (vi)to apply insurance money in reinstating the property; (vii) to keep clear, full and accurate accounts of all sums received and spent by him as mortgagee; (viii) to apply rents and profits in discharge of interest after making deductions; and (ix)to account for gross receipts. Management of the Property A usufructuary mortgagee having possession of the mortgaged property is under a duty to manage the property as a person of ordinary prudence would manage it if it were his own.4 He cannot be exactly called a trustee, but he is supposed to take due care of the property. If he fails to carry necessary repairs, he would be liable for the loss. Such a mortgagee is not a trustee for the mortgagor, but his duties are akin to those of a trustee.5 The mortgagee in possession of agricultural land is bound to cultivate the ordinary crops that the land is capable of yielding,6 but he is not an assurer of the continuance of the same rate of profit.7 He is liable for loss occasioned by his failure to make necessary repairs,8 but not when the mortgagors were in occupation as tenants.9 Where the mortgage-deed requires the mortgagee to cultivate the land himself, a lease by him is not a prudent act of management, but rather a destruction of the rights of the mortgagor.10 It is the duty of the mortgagee not to let vacant lands remain untenanted, but to let them to solvent tenants.11 A mortgagee in possession may enter into any arrangement which might facilitate the recovery of a reasonable return for his money,12 and this would include the granting of leases. Such leases may be given even after a suit for redemption is filed,13 but would determine at redemption,14 as would an occupancy tenancy.15 A mortgagee with zamindari rights may settle tenants on the land,16 unless the mortgage deed negatives this right.17 A lease of the mortgaged property may or may not be a prudent act of management18 but a Page 25 of 75

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permanent lease is not a prudent transaction,19 and a tenant of a mortgagee in possession cannot continue in possession after redemption of the mortgage,20 or on termination of the interest of the mortgagee,21 or resist eviction by the mortgagor by relying on the rent Acts.22 He can be evicted in a suit for the recovery of possession.23 It is not necessary to make the tenant a party to the decree and the execution proceedings.24 The burden of proving a lease to be a prudent transaction would be upon the one who asserts it, i.e., the lessee.25 A tenant in possession before the mortgage, becomes a tenant of the mortgagee on the mortgagee taking possession, and reverts on redemption to his previous position as a tenant of the mortgagor.26 Where the properties mortgaged are shop or rooms, situated in an urban area,27 the tenants of the mortgagee are not entitled to the benefit of s. 76(a) on termination of title of the mortgagee.28 Collection of Rents and Profits A mortgagee in possession must try his best to collect the rents and profits thereof. A condition about crediting the rents and profits is always implied29 and need not be specifically laid down. A mortgagee by conditional sale taking possession with the consent of the mortgagor,30 or taking possession under an agreement of sale which was invalid,31 is accountable for rents and profits.32 A mortgagee in possession is always directed to account on the footing of willful default, i.e., not merely for rents and profits which he actually receives, but also for rents and profits, which, but for his mis-management or neglect, he would have received.33 He must be diligent in realising his security.34 It is immaterial in such a case that the mortgaged property was leased before the usufructuary mortgage was executed.35 If the mortgagee has leased the property mortgaged to the mortgagor36 and the mortgagor or the mortgagee37 commits a default38 or the mortgagee has obtained a decree for rent which has become time barred, he is not entitled to credit for the amount in a redemption suit.39 Accounts are to be taken on the basis of the date on which the mortgagee enters possession40 of the portion of the mortgaged premises41 but he is liable only for such sums as are actually received by him, or on his behalf, and such sums, if any, as might be received by him but for his own neglect or fault.42 A mortgagee in possession may determine the tenancy of an annual tenant without the consent of the mortgagor.43 Public Charges and Rent A mortgagee in possession must, in the absence of a contract to the contrary,44 out of the income of the property,45 pay the government revenue, all other charges of a public nature,46 and all rents accruing due in respect thereof during such possession47 and any arrears of rent48 in default of payment of which the property may be summarily sold. The mortgagee is liable to pay charges when he had sufficient income and his liability to pay has arisen after he entered into possession as a mortgagee49 of the mortgaged property. He is not responsible if the property mortgaged is sold to realise arrears of rents of other lands.50 However, where the government revenue is a consolidated demand on the land mortgaged and other lands as well, the mortgagee is bound to pay the whole revenue accruing due on all the lands.51 Page 26 of 75

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A default in payment by the mortgagor, despite an express covenant, entitles the mortgagee to pay the rent and debit the mortgagor with the payment in the mortgage account52 if the income is sufficient, or, if it is not, then pay out of his own pocket to save the security and add the amount to the mortgage money.53 But on a default by the mortgagee, the mortgagor may pay54 and credit the amount in the mortgage account,55 and charge interest,56 or recover such payment by a separate suit by way of damages.57 If the land is sold for the mortgagee’s default of payment and is purchased by the mortgagee, it is still open to redemption by the mortgagor.58 In absence of a contract to the contrary, it is the mortgagee’s duty to pay59 the enhanced assessment if it is raised after the mortgage.60 Repairs A mortgage in possession must, in the absence of a contract to the contrary, make such necessary repairs61 of the property as he can pay for out of the rents and profits thereof,62 after deducting from such rents and profits the payments mentioned in cl (c)63 and the interest on the principal money. Necessary repairs include repairs of a well,64 but do not include laying water pipes in the house.65 The mortgagor can credit in the account for loss caused by the mortgagee’s failure to repair.66 If the parties dispense with an account, the mortgagee cannot charge for repairs.67 Waste A mortgagee in possession must not commit any act which is destructive or permanently injurious to the property. Granting occupancy rights in exchange for nazarana, depreciating the value of the estate,68 felling trees69 or immature bamboo clumps standing on the date of the mortgage is committing acts of waste,70 but not if they were planted by the mortgagee,71 or if it is a permissive waste.72 Insurance Where a mortgagee73 in possession has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgage-money. Accounts A mortgagee in possession must keep clear, full and accurate accounts74 of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor,75 at his request and cost, true copies of such accounts and of the supporting vouchers. The mortgagee, as required by law, must maintain accounts.76 A duty to keep accounts is a rule of justice, equity and good conscience, and applies to mortgages executed Page 27 of 75

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prior to the coming into force of the Act,77 and in areas where the Act is not in force78 and even when a mortgagee enters into possession under a deed which is silent as to possession.79 The account must show clearly in detail80 what the mortgagee has realised, from what portions of the mortgaged property, in what terms of periods, with what loss or gain on the several assets, and with what necessary reductions, and the net profits available as actual realisations towards liquidating the mortgage amounts,81 and exhibit detailed items of all receipts and disbursements upto the time of accounting verified by themselves and accompanied by all vouchers.82 The mortgagee cannot claim that an item entered in his account is an illegal collection.83 In case of two mortgages, separate accounts of each are to be maintained.84 These accounts are independent of any accounts kept by a patwari,85 though accounts maintained by agent are the principal’s accounts.86 Contract to the Contrary Unless there is a contract in the terms of s. 77,87 a mortgagee cannot be absolved of his duty to account.88 A payment of a fixed annual sum with no liability of mortgagee to keep accounts is a valid contract,89 but a mortgagee required to render accounts at the time of redemption is under a duty to do so.90 Failure to Account On the mortgagee’s failure to keep proper accounts, the court takes into account either the average annual income91 while disallowing interest,92 or gross annual rentals,93 allowing collection charges.94 In case there is no definite evidence as to the amount of the rent,1 profits balance the interest.2 A prior mortgagee who has realised his security and is in possession as purchaser is not liable to account for rents and profits when sued for redemption by a puisne mortgagee who had not been made a party.3 Where a cess is introduced by an Act subsequent to the mortgage and realisable only by the mortgagor, such amount is to be credited to the mortgagor.4 System of Accounting The receipts from the mortgaged property, or, where such property is personally occupied by the mortgagee, a fair occupation rent5 in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses, and interest6 thereon, be debited against him in reduction of the amount (if any) from time to time7 due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor.8 The mortgagee’s obligation to render accounts continues even after a preliminary decree until the final mortgage decree,9 and a mortgagor can claim an account, on filing a suit for redemption10 unless, in case of agriculturists, a statute passed for their benefit bars redemption.11 Mortgagee’s Inability to Deduct any Amount and Just Allowances Page 28 of 75

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When the mortgagor tenders, or deposits the amount for the time being due on the mortgage, the mortgagee must, account for his receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of court, as the case may be and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property. Management expenses allowed to the mortgagee as ‘just allowances’,12 include expenses of repairs,13 costs of litigation incurred bona fide to collect rents,14 or where mortgagor’s title was impeached in the suit,15 and public charges, but the mortgagee cannot deduct such charges paid after the date when the amount mentioned in the decree for redemption is tendered to him.16 The mortgagor and the mortgagee may agree on a fixed sum to be charged annually17 as just ‘expenses’, but a mortgage cannot charge remuneration for his personal services for managing the mortgaged property,18 except in certain cases, e.g., for managing a mill.19 The mortgagor is entitled to recover the surplus, if any, with interest,20 from the mortgagee. Effect of Tender or Deposit After tender, the mortgagee is not entitled to collection charges,21 or to deduct expenses of management, collection of rents and profits, or repairs,22 or expenses for cultivation23 or even public charges when a decree directs the mesne profits to be awarded after a particular date.24 Tender wrongfully refused operates as a cessation of interest if there is a continued readiness to pay,25 and the mortgagee in possession has to account for rents and profits received from the date of tender.26 Loss occasioned by the mortgagee’s default can be determined in the same suit27 which can be brought within a period of three years.28 RECEIPTS IN LIEU OF INTEREST

Section 77. Receipts in lieu of interest.— Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.

GENERAL PRINCIPLE

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This section is in the nature of an exception to the preceding section. It imposes a duty on the mortgagee to keep proper accounts of the rents and profits that are coming out of the mortgaged property in possession of the mortgagee. These rents and profits are to be adjusted against the interest on the principal amount, and a certain portion of the principal amount as well. However, if the contract stipulates that the rents and profits are to be appropriated by the mortgagee in lieu of the interest,29 then the mortgagee would be under no obligation to keep an account of the same30 as the statutory principles do not apply. The rule does not effect the obligation of the mortgagee to pay government revenue.31 When the mortgage stipulates that the mortgagee was to pay a fixed annual sum32 to the mortgagor out of rents and profits or as malikhana 33 and besides this there will be no accounting, it is valid,34 notwithstanding a contract that receipts shall be taken in lieu of interest35 except when the mortgagee disputes the title of the mortgagor.36 However, mere estimation of the amount of rents and profits that would be available for reduction of the debt37 will not enable the mortgagee to take benefit of this rule. PRIORITY

Section 78. Postponement of prior mortgage.— Where, through the fraud, misrepresentation or gross neglect of prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.

GENERAL PRINCIPLE A property that is mortgaged with one mortgagee can be mortgaged again to either the same mortgagee or to another person. On the strength of the same property, a person can raise a loan a number of times from same or different people. In such cases generally, the prior mortgagee has a priority of claim over the second mortgagee. For instance, A mortgages his property to B for a loan. He then mortgages the same property to C to raise another sum of money. C here would be called a subsequent mortgagee. If A is unable to repay the loan to both B and C both and the property is sold, first, B would be paid from the sale proceeds, and after him, C would be paid The present section enacts a special rule, which is in the nature of an exception to the general principle of priority of mortgagees. It provides for postponement of the prior mortgagee, i.e., it enacts an opposite rule. It says that if the subsequent mortgagee has been induced to advance money on the mortgaged property either through the fraud,38 misrepresentation or gross neglect of a prior mortgagee, the prior mortgagee shall be postponed to the subsequent mortgagee.39 Thus, if there are circumstances which show that the mortgagee acted dishonestly or disingenuously, and the puisne mortgagee was, in Page 30 of 75

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consequence, deceived, the prior mortgagee will be deprived of priority.40 Priority Priority signifies priority in payment of the mortgage money. A prior mortgagee does not lose priority when the mortgagor admits another mortgage41 or when he releases part of his security.42 Non-disclosure of an earlier mortgage43 does not amount to fraud, but making a person believe that the property is unencumbered when it is not, will result in postponement of security.44 A claim to priority may also be lost by res judicata.45 Questions of priority only arise between successive mortgages and do not affect the liability of the mortgagor,46 or a subsequent purchaser.47 Gross Negligence Gross negligence is not ordinary negligence, but negligence so gross that would render it unjust to deprive the prior encumbrance of his priority.48 Negligence must be the proximate cause of the change of position. Where a mortgagee stands by and sees another lending money on the same estate without giving notice of his first mortgage, it is a misrepresentation. Where, in an equitable mortgage the mortgagee gives the loan on strength of a certified copy of the original title deeds or49 allows the mortgagor to retain the title deeds or returns it to him after inspection50 or after making an incorrect endorsement of satisfaction on the mortgage deed,51 and enables him to raise money on subsequent mortgages he loses priority, but if he gives the deeds to a sub-mortgagee who returns them to the mortgagor, or if the second mortgagee advances the money without investigating the title or searching the register52 or when the nonpossession of the deeds is reasonably accounted for;53 the priority rule will not be reversed. Again, the mortgagee does not lose priority when mortgagor is in possession and the latter pays rent to the mortgagee,54 or there is an omission to detect an irregularity in the deeds55 or a delay in the registration of mortgage.56 If the mortgagee, after making prudent inquiries57 about the title deeds is satisfied by a reasonable excuse given by the mortgagor, that they are lost or that he never had any, and that his title is prescriptive, he will not be postponed if it turns out afterwards that the mortgagor had the title deeds. MORTGAGE TO SECURE UNCERTAIN AMOUNT WHEN MAXIMUM IS EXPRESSED

Section 79. Mortgage to secure uncertain amount when maximum is expressed.—

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If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage. Illustration A mortgages Sultanpur to his bankers, B & Co, to secure the balance of his account with them to the extent of Rs. 10,000. A then mortgages Sultanpur to C, to secure Rs. 10,000, C having notice of the mortgage to B & Co, and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs. 10,000. B & Co. are entitled, to the extent of Rs. 10,000, to priority over C.

CONDITIONS FOR APPLICATION OF RULE This section contains the second exception to the general rule of priority of former mortgagee. For the application of the rule the following conditions should be satisfied: (i) The maximum amount should have been secured through the first mortgage; (ii) The second mortgagee has notice of the prior mortgage; (iii)The first mortgagee advances more money within the maximum limit after the second mortgage has been affected. The rule also applies to a charge.58

Section 80. Tacking abolished.— [Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), Section 41.]

MARSHALLING AND CONTRIBUTION

Section 81. Marshalling securities.— Page 32 of 75

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If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.

GENERAL PRINCIPLE Marshalling is available in case the mortgaged property is acquired either through sale or by a subsequent mortgage by a second transferee. It literally means arrangement, and permits a subsequent transferee in certain cases to protect his property from being sold to repay the mortgage money. Essential Ingredients of the Section (i) The owner of two or more properties mortgages them to one person i.e., both mortgages shall be by the same owner; (ii) He then mortgages one or more of the properties to another person; (iii)The subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him; (iv)This arrangement cannot be to the prejudice of the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties. The rule does not apply to hypothecation of movables.59 The court can adjust the equities by requiring a prior mortgagee to proceed first against properties that are not subject to a puisne mortgage.60 Marshalling will be refused if the rights of subsequent purchasers are adversely affected.61 A lessee of one of the several properties mortgaged with the same mortgagee has no right to require that the other properties should be sold first62 but, a puisne mortgagee who has a right of marshalling against a prior mortgagee does not lose that right because he has purchased the equity of redemption.63 Where a claim to marshalling has been raised as an issue in a suit and has been decided on the merits, the matter is not open to a fresh contest in execution.64 A karta of the joint family cannot avail of this rule where he mortgages the joint family property and his personal property.

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CONTRIBUTION TO MORTGAGE-DEBT

Section 82. Contribution to mortgage-debt.— Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date. Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid. Nothing in this section applies to a property liable under section 81 to the claim of the subsequent mortgagee.

GENERAL PRINCIPLE The section provides rules for the contribution of money towards the mortgage debt, where either the property mortgaged belongs to two or more persons who have distinct interests in it or if two or more properties of the same person are utilised for discharging the mortgage. It is based on the principles of equity, justice and good conscience. Two or More Persons having Distinct and Separate Rights Law provides that where several persons are involved in the effecting of a mortgage, one only out of these should not alone bear the burden of discharging the mortgage debt, through his share of property. Thus if two or more persons owning property mortgage it, each of them should contribute towards payment of the mortgage debt in proportion to their shares in the property. If the others do not contribute, one of them can require the others to pay their respective share of money. Similarly, if two properties of the same mortgagor are mortgaged with one person one after another, the rule of contribution applies to them also. For instance, A, B, C and D together own a property. The share of each of them is one-sixth, one-sixth, onethird and one-third respectively. They mortgaged the property in favour of X for a loan of R s.

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80,000. The interest on this amount is calculated as Rs. 10,000. Out of the total amount of R s. 90,000,A and B will pay 15,000 each, and C and D will pay Rs. 30,000 each. For the repayment of the debt, contribution requires that a fund, which is equally liable with another to pay a debt, shall not escape because the creditor has been paid out of that other fund alone. If a person owning one property, subject, with the property of other persons, to a common mortgage, has paid off the mortgage, he is entitled to call upon the owners of the other property to bear their proper proportion of the burden.65 The suit for contribution is maintainable when the whole of the mortgage debt has been paid out of parts of the mortgaged property and payment of the debt from one alone is not necessary. When payment of the prior encumbrances has been made, the amount of the encumbrance is deducted from the value of that property in ascertaining its ratable contribution. Where three persons jointly mortgaged their three properties, in the absence of a contract to the contrary, the remedy of the mortgagor is to sue for redemption and then claim contribution from his other co-mortgagors.66 In valuing the property for the purpose of ratable contribution, the liability on the other property is to be taken into account.67 The rule of contribution is applicable as between shares purchased from the mortgagor, the heirs of the mortgagor, in cases of partition between joint mortgagors and co-judgment debtors but it is not applicable against the mortgagee or the auction purchaser.68 Obligation to Contribute Towards Property The obligation to contribute is not personal, but only towards properties in proportion to their values and not in proportion to the mortgage money.69 The owner of the property has an option either to pay his ratable share or to allow it to be realised out of the property.70 Where the amount due on the earlier mortgage on one property exceeds the value of that property, the whole amount of the second mortgage is recoverable from the other properties.71 When a portion of the mortgaged property is sold and the sale proceeds are sufficient to pay off the mortgage over the entire property, the subsequent mortgagee of the portion sold is entitled to sue the holder of the unsold portion for contribution whether he pays cash to discharge the first mortgage or not. The rule of contribution also applies when the mortgage is paid off out of only some of the properties mortgaged and the owner of the person interested in the properties from which the mortgage is paid off, then, has a right to claim contribution from the owner of other properties which are liable under the mortgage, but which are not called upon to pay off.72 A prior mortgagee’s sale can remove property from the scope of a second mortgage. Application of Rule of Contribution to Mortgagee Primarily, the rule of contribution is applicable to co-mortgagors. It does not affect the mortgagee’s power to enforce his mortgage against all or any of the properties mortgaged to him and does not empower the mortgagors to require the mortgagee to split his lien and Page 35 of 75

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distribute the debt among the mortgagors ratably.73 The mortgagee cannot be deprived of his right to resort to any estate comprised in the mortgage so long as he has not released or given it up and so long as the mortgage is legally kept alive; but a mortgagee purchasing share in equity of redemption is liable to contribute a proportionate part of the debt, and the mortgagor is entitled to redeem the residue for a proportionate part of the debt.74 In applying the principle, the ratio which the value of the items purchased bears to the value of the whole of the mortgaged property is to be taken into account and not the amount of the debt discharged.75 If the mortgagee buys a share in the equity of redemption but not a share in the property itself, he can enforce the whole of the mortgage debt against the rest of the property.76 Release by the Mortgagee The mortgagee is liable to the mortgagor if he pays less than the full value of the property and is not allowed to take the defence that the property was purchased at a low price.77 A release of any part of the mortgaged property, results in diminishing the mortgagee’s security and the rest of the property remains subject to the mortgage for the full amount. As the burden of contribution is with respect to the property, this burden cannot be increased for others without the privity and their consent.78 In such cases, it is presumed that the mortgagee has bought the property released, and apportioned the mortgage debt, with liability to contribution, and not merely part payment of the debt. A division of equity of redemption by partition or part-sale before the release entitles the holders of such shares to a right of contribution against the share released.79 Common Debt For the liability to contribute, the properties must be subject to a common debt.80 If one property is mortgaged and the other property is subject to a general lien for debt, or the equities are equal, there is no liability to contribute.81 Suit for Contribution The liability to contribute arises when the mortgagee realises his debt unequally. The time period within which he can file this suit or limitation is 12 years from the time when the excess payment was made. A co-mortgagor who pays the mortgage money has a right of contribution in addition to the right of subrogation, but there is no right of contribution or of subrogation where there is no charge on the property.82 Where a purchaser of a part of the mortgaged property deposits the whole of the mortgage debt in court to prevent the sale of the property in execution of a decree obtained by the mortgagee, he is entitled to a right of contribution but is subrogated to the right of the mortgagor.83 In case of contribution, a claim must be preferred against each party liable to contribute, i.e., all persons in whom the mortgaged property is vested and not against all collectively. Issues of contribution between the mortgagors inter se can be settled in a suit to enforce a mortgage or execution proceedings; Page 36 of 75

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but the practice is improper, for a claim to contribution does not relate to the execution, discharge or satisfaction of the decree, and should be enforced by an independent suit. A single suit by the owner of property sold on two separate occasions is sufficient, but the materials placed before the court must be adequate to work out the account, or the suit will be dismissed.84 A suit for contribution is not barred by res judicata on the ground that the claim was not included in the suit for redempton.85 Valuation for Contribution The valuation of the properties and the proportion of contribution has to be worked out as it stood at the date of the mortgage, irrespective of the price that may have been paid by a purchaser or at the date of sale, if there is no change in the value. A sale of the equity of redemption by one of the three sons of the mortgagee on his death will give him credit for onethird share of the mortgage debt. There is no other alternative method for ascertaining the rate of contribution when two or more persons are jointly responsible for the contribution.86 Contract to the Contrary The rules laid down here apply in absence of a contract to the contrary between the mortgagor and mortgagee, or between the contributories or between the surety and the principal debtor though not between the mortgagor and their representatives inter se.87 Such a contract may be subsequent to the execution of mortgage and evidenced by the terms of the mortgage deed. It may provide for one of the many properties alone to be the primary security for the debt. However, the description of a property as collateral security or a mere indemnity bond or a contract between a vendor and a purchaser of a share in the equity of redemption does not necessarily imply a contract to the contrary.88 This statutory liability to contribution is not subject to any other extrinsic principle and the right cannot be controlled by equitable considerations.89 DEPOSIT IN COURT

Section 83. Power to deposit in Court money due on mortgage.— At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.

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Right to money deposited by mortgagor.— The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished. PAYMENT OF THE MORTGAGE DEBT The mortgagor can pay the debt in any of the following ways: (i) by making the payment directly to the mortgagee; (ii) be instituting a suit in the court; or (iii)by a deposit of the amount in the court. The ingredients of the section are: (i) the principal money is due and payable in respect of any mortgage; (ii) a suit for redemption of the mortgaged property is not barred; (iii)the mortgagor, or any other person entitled to institute such suit, may deposit the money to the account of the mortgagee, the amount remaining due on the mortgage, in any Court in which he might have instituted such suit.90 Deposit in Court The primary purpose of this provision is to ensure that the mortgaged properties are released to the mortgagor without driving him to file a suit for redemption, but for this two conditions must be fulfilled, namely, the mortgagor deposits the amount in court prior to the institution of the application or the petition and on receipt of the notice from the court the mortgagee expresses his willingness to receive the money without placing any fetters or conditions. The role of the court is limited and is ministerial in nature and does not extend to adjudicate any other issue between the parties.91 The mortgagor can make the deposit to the account of the mortgagee but not to the account of Page 38 of 75

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a mortgagee and a third person unless he is a legal representative of the mortgagee or his submortgagee and where there is a doubt or a dispute with respect to whom the mortgagee is, the court will enquire who the mortgagee was on the date of the application and the mortgagor should deposit the money in the court or to the account of the estate of the deceased mortgagee.92 After the deposit is made the court shall cause a written notice of the deposit to be served on the mortgagee. The mortgagee may present a petition stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount. He would be required to deposit the mortgage-deed and all documents in his possession or power relating to the mortgaged property in the same court. He can then apply for, and receive, the money. The mortgage-deed, and all such other documents so deposited by him shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in the possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor, or to such third person as the mortgagor may direct, or to execute, and where the mortgage has been effected by a registered instrument, have registered an acknowledgment in writing that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished. In case the mortgagee is unwilling to accept the money, the deposit is returned to the mortgagor and the parties are referred to a regular suit. The mortgagee cannot be compelled to accept the deposit or allowed to withdraw it conditionally.93 Deposit The term deposit indicates actual unconditional payment and not merely a readiness to pay. It includes the principal and the interest even if mortgagee has obtained a decree for interest.94 Where a mortgagor is liable to pay cesses or taxes, the amount due on these cesses or taxes must be included in the deposit. The amount of the deposit may be more, but can never be less even if the deficiency is small; though a small deficiency can be excused in some cases. The law does not provide for an inquiry by the court as to the amount due by the mortgagor to the mortgagee. If the amount of deposit is less, the mortgagee is entitled, unless he has agreed otherwise, to appropriate it first to the satisfaction of his claim to interest.95Mesne profits cannot be claimed if the amount deposited is not proper. Notice A deposit must be brought to the notice of the mortgagee; otherwise it would be ineffectual. Service of notice on the mortgagee, and if he is a minor, to his guardian, is essential for making the deposit effectual. A mortgagee’s right of suit cannot be taken away if he is unaware of the deposit and no notice is served on him.96 If it is accompanied with a denial of the mortgage or an application is filed for its transfer to the credit of the suit, it is not a valid Page 39 of 75

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deposit, However, if it is accompanied with an application stating facts about a different transaction, it would be treated as a valid deposit.97 Effects of a Valid Deposit A deposit is not a pre-condition to a redemption suit and a suit for redemption cannot fail because of non-deposit of the money in the court. Even after a deposit has been made, the mortgage still subsists and can be enforced or redeemed.1 For the deposit to become the property of the mortgagee he has to accept it and deposit the mortgage deed in court, failing which it continues to belong to the mortgagor. Withdrawal of the deposit by the mortgagee discharges the mortgage, and he thereafter cannot dispute the validity of the tender.2 If the mortgagee withdraws the money that does not include the money spent by him in payment of arrears of government revenue, he cannot recover it under the mortgage, but he can sue the mortgagor for its reimbursement. In case the deposit is insufficient, the mortgagor is allowed to supplement it with a proper amount, or, with the consent of the mortgagor’s pleader the court may endorse payment on the deed and return it to the mortgagee as discharge pro tanto.3 If the mortgagee files a verified statement accepting the deposit, it is sufficient compliance with the section. Even if he refuses to accept a valid deposit and continues in possession, he is not a trespasser but the interest on the mortgage money ceases to run and he remains accountable for the gross receipts from the mortgaged property from the time he could have withdrawn the deposit. Where the mortgagee withdraws the money but does not deposit the mortgage bond he cannot claim the money withdrawn as mere part payment. However, if he refuses to accept the deposit and does so only after a decree on a suit for redemption he can prosecute an appeal.4 CESSATION OF INTEREST

Section 84. Cessation of interest.— When the mortgagor or such other person as aforesaid has tendered or deposited in court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or in the case of a deposit, where no previous tender of such amount has been made as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of court, and the notice required by section 83 has been served on the mortgagee: Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.

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Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to reasonable notice before payment or tender of the mortgage-money and such notice has not been given before the making of the tender or deposit, as the case may be.

GENERAL PRINCIPLE For the cessation of the interest the following conditions must be satisfied: (i) the mortgagor has tendered or deposited in court the amount remaining due on the mortgage; (ii) interest on the principal money shall cease from the date of the tender or in the case of a deposit; (iii)where no previous tender of such amount has been made as soon as the mortgagor or such other person as is competent has done all that has to be done by him to enable the mortgagee to take such amount out of Court; and take notice of the same has been served on the mortgagee.5 If a condition in the contract says that the mortgagee shall be entitled to a reasonable notice before payment or tender of the mortgage-money and such notice has not been given before the making of the tender or deposit, he will not be deprived of his right to interest. A plea of tender before action is ineffectual to stop interest, unless accompanied by a payment into court after action, but if the mortgagor makes a tender which is refused, following which, he deposits the money in court, such tender operates under the general law to stop the running of interest provided there is a continued readiness to pay. If after such withdrawal, the money were re-deposited, interest would not run.6 SUITS FOR FORECLOSURE, SALE OR REDEMPTION

Section 85. Parties to suits for foreclosure, sale and redemption.— [Rep. by the sec.156 and Sch. V.]

PERSONS WHO MAY SUE FOR REDEMPTION FORECLOSURE AND SALE

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Sections 86-90. — [Rep. by the sec. 156 and Sch. V.]

REDEMPTION

Section 91. Persons who may sue for redemption.— Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely:— (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

PERSONS ENTITLED TO REDEEM THE PROPERTY The general rule is that besides the mortgagor, any person who has an interest in the mortgaged property can redeem it, more specifically any surety for the payment of the mortgage-debt or any part thereof; or any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. The following persons are entitled to redeem the mortgaged property: (i) The mortgagor;7 (ii) Any person other than the mortgagee of the interest sought to be redeemed who has any interest in,8 or charge upon9 the property mortgaged or in or upon the right to redeem the same; (iii)A purchaser of the equity of redemption;10 (iv)An alienee of mortgaged property;11

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(v) A landlord of the mortgagor if the tenancy is vested in him on the tenant’s death without heirs;12 (vi)The mortgagor’s lessee;13 (vii)

Any of several co-mortgagors;14

(viii) A co-sharer in mortgaged property;15 (ix)A purchaser or execution purchaser of the whole16 or part of the equity of redemption;17 (x) A purchaser in execution of a decree in a rent suit;18 (xi)A donee of the equity of redemption;19 (xii) An assignee of the equity of redemption during the pendency of the mortgagee’s suit before the sale is confirmed; (xiii) The purchaser when property subject to a mortgage is attached and sold; (xiv) A statutory heir to the tenancy governed by statute;20 and (xv) A tenant in occupation of property subject to a simple mortgage having an interest in the equity of redemption.21 A mortgagor’s right to redeem is not extinguished by the possession of the mortgagee for a period of 12 years.22 A person who erroneously believes that he stands in the shoes of the mortgagor and pays off the mortgage-debt has sufficient interest to be subrogated to the rights of the mortgagee.23 The following persons cannot redeem: (i) A person having a future uncertain interest;24 (ii) A landlord during subsistence of tenancy;25 (iii)A tenant not having a proprietary interest;26 (iv)A person disentitled by their personal law from redeeming.27 (v) A person who has merely contracted to purchase the equity of redemption28 though a reversioner may redeem in case of waste or of necessity for the preservation of the property.29 A redeeming co-mortgagor has the same rights as the mortgagee, for the limited purpose of redemption, foreclosure or sale.30 A redemption suit against him is maintainable if filed within 60 years from the date of the original mortgage.31 However, the question of entitlement cannot be raised after a preliminary decree has been passed.32 Puisne Mortgagee The term puisne mortgagee refers to an assignee of the mortgagee. An execution purchaser of the whole or part of the equity of redemption; a prior mortgagee who has purchased the equity Page 43 of 75

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of redemption or a puisne mortgagee who is an assignee of the equity of redemption or even a sub-mortgagee of the puisne mortgagee, is entitled to redeem a prior mortgage, but only when the puisne mortgage is valid or the mortgagee has not lost all remedies of foreclosure or sale on his own mortgage.33 A wrongful refusal by a prior mortgagee of a valid tender by the mortgagor will not make the puisne mortgagee redeeming the prior mortgagee, liable for interest. A puisne mortgagee or a second mortgagee is entitled to redeem the puisne mortgage or the first mortgage even though he is not impleaded in the suit by the mortgagee. A second mortgagee who purchases the mortgaged property in execution of a decree is entitled to redeem other mortgages on the same property created by the mortgagor.34 SUBROGATION

Section 92. Subrogation.— Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated. Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.

GENERAL PRINCIPLE Subrogation literally means substitution and is used here to describe the right of a person to stand in the shoes of a creditor in relation to a person whose debts he has discharged. The person who pays of the debt in relation to a mortgage also gets the rights of a mortgagee. Law does not recognise a partial subrogation and therefore, the rule does not confer a right of

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subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.35 The ingredients of this section are: (i) Any of the persons referred to in s. 91, (other than the mortgagor) and any comortgagor; (ii) Shall, on redeeming property subject to the mortgage, (iii)Have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. (iv)The right conferred by this section is called the right of subrogation. (v) A person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. (vi)A person who has advanced a mortgagor money with which the mortgage has been redeemed, shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated. (vii) No right of subrogation will be conferred on any person unless the mortgage in respect of which the right is claimed has been redeemed in full. Legal and conventional subrogation A right of subrogation affects the property36 and therefore, an agreement of subrogation must be in writing and registered.37 Subrogation means substitution and is either conventional or legal. Legal subrogation takes place by operation of law. Only a person, having interest in the property can avail it and not any other person having no obligation to repay. It carries an equitable charge with it.38 A person having an interest in the property, such as possession, may pay money to prevent a sale and an equitable charge is created in his favour for this amount that he should be re-imbursed. A puisne mortgagee redeeming a prior mortgage is legally subrogated to the rights of the prior mortgagee irrespective of any question of intention. Conventional subrogation arises out of an agreement, express or implied, conferring the exercise of rights and powers of the original creditor.39 Subrogation, as a matter of right, is never applied in aid of a mere volunteer. Subrogation is not applicable when the mortgagor gives two successive usufructuary mortgages. An assignee competent to receive compensation in the case of loss is not subrogated. Redemption by Puisne Mortgagee Intention was the determining factor before the passing of this rule and a puisne mortgagee Page 45 of 75

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redeeming a prior mortgagee was always subrogated unless he was under covenant to discharge the prior encumbrance. Subrogation of puisne mortgage should be free from collusion or fraud. and prior to a sale of equity of redemption, but payment of a prior mortgage to prevent mortgagor’s liability to increase or an attachment does not effect his subrogation. There can be subrogation more than once. A puisne mortgagee paying off a decree obtained by a mortgagee or discharging a decree absolute for sale obtained by a prior mortgagee, is subrogated and entitled to priority over mesne mortgages, even though the debt has merged in the decree. The date of the mortgage determines priority, not the date of the decree. A mortgagee who has obtained a decree for sale, which he has not executed, may use the mortgage as a shield even after execution of the decree has become time barred. Who Else can Subrogate The following persons can subrogate:40 (i) a co-mortgagor redeeming a mortgage; (ii) a mortgagor’s surety; (iii)a purchaser of the equity of redemption can redeem and be subrogated. The following persons cannot subrogate:41 (i) a collusive transferee; (ii) a benami purchaser; (iii)a purchaser from a benamidar; (iv)a purchaser in an invalid purchase. Where a person, erroneously believing that he is entitled to stand in the shoes of the mortgagor, pay off the mortgage, he is subrogated to the rights of the mortgagee. Even if the purchase is subsequently set aside, the purchaser may still claim the benefit of the securities he had discharged.42 In the case of a purchase of the whole of the equity of redemption, there are no rights of subrogation against the mortgagor, for the purchaser is himself the mortgagor. A co-mortgagor who redeems the entire mortgage is not to be subrogated or treated as a mortgagee for all intents and purposes qua the non-redeeming mortgagors. A right to contribution of co-mortgagor against the other co-mortgagor paying off the entire mortgagee debt, also accrues to the non-redeeming co-mortgagor to redeem his share of the property and to get possession thereof on payment of his share of the liability, to the redeeming comortgagor and the right subsists as long as the redeeming mortgagor’s right to contribution subsists. The redeeming co-mortgagor is subrogated to the rights of the mortgagee in respect of the rights of the defaulting co-mortgagor.43 A mortgagor’s surety can be subrogated even before payment of debt by the guarantor to the creditor, the guarantor by invoking the equitable doctrine of subrogation can apply for temporary injunction. Where the sureties pay the mortgagee amount due under the preliminary decree during the pendency of proceedings Page 46 of 75

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for final decree, they have the right of subrogation. An auction purchaser can use his prior mortgage as a shield against the puisne mortgagee and in his second capacity, he can redeem the second mortgage. In cases of non-merger the equitable rule of intention is applied when the party does not know that it would be beneficial to him. The only case in which non-merger is beneficial and when it is necessary to apply the equitable rule of intention is when the property is subject to other encumbrances.44 MORTGAGOR A mortgagor cannot subrogate.45 A mortgagor paying a mortgagee debt cannot set up a charge against a subsequent encumbrance and cannot use his subsequently acquired interest to defeat his grant to the puisne mortgagee, but the rule that a mortgagor cannot derogate from his grant has no application when the second mortgage is made expressly subject to the first, and a mortgagor redeems the prior mortgage. If a puisne mortgagee retains part of the mortgage money to redeem a prior mortgage and fails to do so, he is liable in damages to the mortgagor. Partial Subrogation Redemption in full of the prior mortgage is a necessary condition which must be satisfied before the right to subrogation can be claimed.46 It is essential is that the whole debt must be paid up, and not that the whole debt must be paid up by one person and all persons making the payment are entitled to the benefit of the right,47 including a person who pays part of the money.48 Subrogation Excluded by Covenant The doctrine of subrogation is never permitted, where its application would work injustice to the rights of those having equal of superior equities.49 The rule of subrogation also does not apply, if the owner of the property had covenanted to pay the later debt50 and performs his own obligation or covenant.51 If the purchaser covenants to discharge the puisne mortgagee, he cannot, on redeeming the prior mortgage, use it as a shield against the puisne mortgagee52 with notice of the covenant.53 However, a purchaser at a court sale of property subject to a mortgage is not under an implied covenant to discharge the mortgage, and, when he pays it off, he is entitled to subrogation.54 A voluntary payment carries with it no right of reimbursement or subrogation.55 The mere fact that money is borrowed and is used for the purpose of paying a previous charge does not entitle the lender to the benefit of the discharged security.56 In such a case, the right to the benefit depends upon the existence of an agreement between the borrower and the lender.57 The agreement must be express and in writing and registered.58 A person under an agreement with the mortgagor that the redeemed mortgage should be kept alive for his benefit59 or where the money has been advanced under a contract of sale or Page 47 of 75

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mortgage,60 is subrogated to the rights of the original creditor but not if the sale goes off for the purchaser’s default.61 The covenant by one coparcenor would give him the right of subrogation though in regard to the mortgages redeemed, he was only a co-mortgagor.62 If the person advancing money to redeem a mortgage secures the loan by a puisne mortgage or if he is a purchaser and the money is part of the price, he is subrogated either as puisne mortgagee or as purchaser of the equity of redemption.63 It does not matter if the puisne mortgage64 or deed of sale was executed after the discharge of the prior mortgage with the money advanced, unless, the person advancing the money was not aware of the prior mortgage or the purpose for which the money was being utilised;65 but when a puisne mortgagee pay at the mortgagor’s request, he pays as agent of the mortgagor and is not subrogated.66 What must be taken into account is not the hand which pays the money but the intention.67 A purchaser who was bound by a contract to pay off the mortgage with the money left with him by the mortgagor, and who does so, cannot be subrogated.68 A usufructuary mortgagee who undertakes to pay off three prior mortgages, but pays only two, is not subrogated to the rights of the mortgagees in the first two mortgages, as against the third mortgagee.69 Effects of Subrogation Subrogation gives all the rights and powers of the mortgagee as the prior mortgagee had at the time he was redeemed70 except the leasehold rights,71 with same rate of interest,72 including a liability of deficit in the property.73 When can the Rights be Exercised A person who is subrogated must file a separate suit to enforce his claims.74 With respect to limitation, there are three different views, namely, that time runs from the date of accrual of the cause of action on the mortgage deed itself and not from the date of payment of the decretal amount;75 time runs from the date of payment of the decretal amount;76 and that time runs from the date fixed for payment by the decree which is paid up.77 PROHIBITION OF TACKING

Section 93. Prohibition of tacking.— No mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.

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GENERAL PRINCIPLE The section contemplates a situation where there are multiple mortgagees. If the subsequent mortgagee pays off a prior mortgage, he does not acquire any priority78 in respect of his original security,79 if there is an intermediary mortgagee. It is irrespective of whether he has a notice of an intermediate mortgage. In a similar situation if one of the mortgagees makes a subsequent advance to the mortgagor, he will not80 acquire any priority in respect of his security of such subsequent advance.81 RIGHTS OF MESNE MORTGAGEE

Section 94. Rights of mesne mortgagee.— Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor.

GENERAL PRINCIPLE This section contemplates successive mortgages for successive debts. For instance, A mortgages property to B. He then mortgages the same property to C for another loan and again, for a third loan, to D. Hre there are three successive mortgagees. C, who is subsequent to B, can redeem B. Similarly, D can redeem C. Likewise, B can foreclose on A as well as C or D, or both of them. A puisne mortgagee’s right to redeem a prior mortgagee is ancillary to his right to work out his remedy by sale of the property.82 A mortgagee has a right to sell the mortgagor’s interest as it stood at the date of the mortgage but has to make all subsequent mortgagees parties if he wishes the sale to be free of their encumbrances.83 The prior mortgagee’s suits are not binding on the puisne so as to affect his right under the puisne mortgage.84 In case of successive mortgages, a foreclosure by the prior mortgagee by making the subsequent mortgagee a party, such subsequent mortgagee can either redeem the prior mortgagee and foreclose or bring the mortgage to sale.85 The court may substitute the subsequent mortgagee as decree holder and pass a preliminary decree in his favour.86 But if he does not redeem, his rights are transferred to the surplus sale proceeds and the property, after sale, passes to the auction purchaser free from encumbrances;87 but if the decree does not allow it, the subsequent mortgagee cannot pay off the prior mortgagee and adopt the decree as his own.88 Rights of Auction Purchaser An auction purchaser can redeem a prior mortgage if the prior mortgagee sues to enforce his Page 49 of 75

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mortgage and brings the property to sale, without making the later mortgagee a party.89 The auction purchaser acquires the rights of the mortgagee as well as of the mortgagor as they exist at the date of the mortgage90 and is still liable to be redeemed by the puisne mortgagee,91 or by an assignee of the equity of redemption who has not been made a party.92 In such a suit, the decree is ignored and the auction purchaser is granted interest up to redemption,93 and he can sue for sale to compel redemption though he cannot sue for possession.94 A prior mortgagee’s auction purchaser cannot dispossess the puisne mortgagee,95 or evict a lessee of a lease subsequently granted by the mortgagor if the lessee had not been made a party to the suit,96 or a sharer in the equity of redemption97 who has not been joined, unless as assignee of the equity of redemption he redeems him. An assignee of a part of the equity of redemption was held entitled to recover possession from the auction purchaser at the mortgagee’s sale. Where Puisne Mortgagee is not Impleaded The omission to implead a puisne mortgagee does not in any way affect his rights,1 to redeem the prior mortgagee even when he is mortgagee of a part.2 The first mortgagee may obtain a decree on his mortgage and the property may be sold in execution of such decree,3 but redemption of the prior mortgage will not give the puisne mortgagee a right to possession if the prior mortgage is not usufructuary.4 A puisne mortgagee in possession5 or an assignee of part of the equity of redemption who has been in possession,6 though not impleaded in the prior mortgagee’s suit, may be evicted by the auction purchaser at the prior mortgagee’s sale, and the puisne mortgagee must redeem him or give up possession, but if the mortgagee’s omission to join the purchaser of part of the equity of redemption is intentional, his suit for possession will be dismissed.7 Priority of Redemption and Rights of Possession When a prior mortgagee brings the property to sale and purchases it, he who is entitled as assignee of the equity of redemption to redeem the puisne.8 Of the two rights to redeem, i.e., the right of the puisne mortgagee to redeem the prior, and the right of the prior mortgagee to redeem, the puisne takes priority.9 The right of possession after the sale by one mortgagee is decided according to priority of sale10 or priority of the mortgages.11 A prior mortgagee’s auction purchaser gets a decree for sale in default of redemption12 and a puisne mortgagee can retain possession13 but his auction purchaser gets no right of possession against him if the prior mortgage is not usufructuary,14 or against an assignee of part of the equity of redemption who has not been made a party.15 RIGHT OF REDEEMING CO-MORTGAGOR TO EXPENSES

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Section 95. Right of redeeming co-mortgagor to expenses.— Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.

GENERAL PRINCIPLE The term ‘mortgagors’ include the successors and assignees of parts of the equity of redemption of the original mortgagor.16 A mortgage is redeemed when the amount of loan or the balance due on it is paid. If the redeeming mortgagor pays the balanced due, he can avail the benefit, even though part of it has been previously paid.17 The redeeming mortgagor has not merely a charge, but the mortgage as to his share is extinguished, and, as to the shares of the other mortgagors, he stands in the shoes of the mortgagee. He may stand on the mortgage he has redeemed, if he can and, if he cannot, may rely on his charge.18 A redeeming mortgagor is allowed to take a proportionate share of his costs also to the mortgage debt as against the comortgagor, but he is not entitled to interest unless he has given express notice claiming it. The rule applies when one mortgagor discharges a mortgage decree.19 MORTGAGE BY DEPOSIT OF TITLE-DEEDS

Section 96. Mortgage by deposit of title-deeds.— The provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.

GENERAL PRINCIPLE The provisions applicable to simple mortgage apply to a mortgage by deposit of title deeds.20 Thus, an equitable mortgagor binds himself personally to pay the mortgage money,21 but will not be bound by an agreement in the mortgaged deed preventing him from exercising his rights of redemption.22

Section 97. Application of proceeds.— Page 51 of 75

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[Rep. by the sec. 156 and Sch. V.]

ANOMALOUS MORTGAGE

Section 98. Rights and liabilities of parties to anomalous mortgage.— In the case of an anomalous mortgage the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.

Section 99. Attachment of mortgaged property.— [Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec 156 and Sch. V].

69. Arunachalam Chetty v. Ramasamy, AIR 1928 Mad 933 [LNIND 1928 MAD 78]. 70. Soli Suraj v. Than Singh, AIR 1922 All 352. 71. Jagmohan v. Harbans Singh, AIR 1925 Oudh 609; Mahtab Rai v. Sant Lal, (1883) ILR 5 All 276; Subba Rao v. Sanarayudu, AIR 1923 Mad 533; Velayudan Chetty v. Afangaram,(1912) 23 Mad LJ 475. 72. Sadasheo Rao v. Rupchand, AIR 1939 Nag 136; Sadashiv v. Govind, AIR 1945 Bom 350. 73. Somanatha v. Ananta, AIR 1932 Mad 18 [LNIND 1931 MAD 135]; Bisheshar Dial v. Ram Samp, (1900) ILR 22 All 284 (FB); Dina Nath v. Lachmi Narain, (1903) 25 All 446; Shib Lal v. Bhawani Shankar, (1904) ILR 26 All 72; Inukhan v. Naimudin, (1906) 3 Cal LJ 377; Krishna Chandra v. Pabna Model Co., AIR 1932 Cal 319; Jay Prosad v. Mtjasoda, AIR 1958 Rang 649; Bhora Thakur Das v. Collector of Aligarh, (1910) ILR 32 All 612; Mutty Lal v. Nandu Lal, (1907) 12 Cal WN 745. 74. Rashidunnissa v. Muhammad, (1912) ILR 34 All 474. 75. Vijayabhushanammal v. Evalappa, (1916) ILR 39 Mad 17; Jauhari Singh v. Ganga Sahai, (1919) ILR 41 All 631. 76. Venkatchella Chetty v. Srinivasa, AIR 1933 Cal 154. 77. Bisheshar Singh v. Laik Singh, (1882) ILR 5 All 257; Shamer Bahadur v. Lal Batuk Bahadur, AIR 1953 All 147 [LNIND 1952 ALL 148]. 78. Venkatasami Naicken v. Ramanathan Chettiar, (1910) 8 Mad LT 409; Mow Raghunath v. Balaji, (1888) 13 Bom 45. 79. Mohan Lal v. Prasadi Lal, AIR 1924 All 11. 80. Sarju Kumar v. Thakur Prasad, (1920) ILR 42 All 544. 81. Annachalam Chetty v. Ramaswamy, AIR 1928 Mad 933 [LNIND 1928 MAD 78]. 82. JugalKishore Sahu v. Kedar Nath, (1912) ILR 34 All 606; Sheo Prasad v. Behari Lal, (1903) ILR 25 All 79; Perumal v. Roman Chettiar, (1917) ILR 40 Mad 968; Sanwal v. Ganeshi Lal, (1913) ILR 35 All 411; Ghasi Khan v. Kishori, AIR 1929 All 380; Sheo Tahal v. Sheodan Rai, (1906) ILR 28 All 174.

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(IN) Poonam Pradhan Saxena : Property Law 83. Bank of Poona v. NC Housing Society, AIR 1968 Bom 106 [LNIND 1967 BOM 7]; Har Chandra Roy v. Mahomed Husain, AIR 1921 Cal 554; Shahasaheb v. Sadashiv Supdu,(1920) 43 Bom 575; Han Kissen v. Veliat Hossein, (1903) ILR 30 Cal 755; Waleyatunnissa v. Chalakhi, AIR 1931 Pat 164; Haibat Shah v. Bohra Tarachand, AIR 1931 All 235; Ganeshi Lal v. Charan Singh, (1913) ILR 35 All 247; Kherodamoyi Dasi v. Habib Shaha, AIR 1925 Cal 152. 84. Kannalal v. Bhagwandas, AIR 1949 Nag 5. 85. Pyli v. Varkki Jacob, AIR 1951 Tr & Coch 36. 86. This rule would not apply, unless the mortgagor were the same, see Rajagopalaswami Naidu v. Bank of Kamikudi, AIR 1965 Mad 537 [LNIND 1965 MAD 62]; Bhaiyalal v. Ramchandam, AIR 1937 Nag 99; Naidu SR v. Bank of Kamikudi, AIR 1971 SC 884 [LNIND 1970 SC 385]. 87. A loan advanced by a bank, with implied stipulation in the mortgage deed that the mortgagee can sue on any one of the mortgages executed by the mortgagor, it is a ‘contract to the contrary and the suit to enforce one of the mortgages is not therefore hit by that section. See United Bank of India v. Suhas Kumar Ray,(1977) 81 Cal WN 300. 88. See The Transfer of Property Act, 1882, s. 67A, the disability imposed by this section is not fatal, see Har Sharan Lal v. Surajmal, AIR 1959 MP 426 [LNIND 1958 MP 47]; and the plaintiff may be given leave to withdraw a suit hit by this section with liberty to file a fresh suit, see Vishwanath v. Haidarali, AIR 1956 MP 63. The rule has no application to a statutory charge, see Corpn. of Calcutta v. Arunachandra Singh, AIR 1934 Cal 862; if the suit embraces several mortgages, court fee will be separately assessed on each mortgage, see Muthuswami Chettiar v. Krishna Aiyar, AIR 1935 Mad 262 [LNIND 1934 MAD 343]. 89. Mohanraj Sowcar v. Monica Gounder, AIR 1956 Mad 467 [LNIND 1956 MAD 263]; Har Sharan Lal v. Surajmal, AIR 1959 MP 426 [LNIND 1958 MP 47]; Konda Ready v. Venkata Rao, AIR 1961 AP 175 [LNIND 1960 AP 134]. 90. Raghunath v. Balaji, (1889) ILR 13 Bom 45; see also Ko Aung Bye v. Ko Po Kyaing, AIR 1931 Rang 208. 91. Rajani Kanta v. Sourendra Nath, AIR 1934 Cal 421. 92. Daw Kyin v. Ko Ba Tin, AIR 1939 Rang 247; Hong Kong & Shanghai Banking Corpn v. Official Assignee, AIR 1959 Cal 616 [LNIND 1958 CAL 163]. 93. Provided that, a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgagemoney. 1.

A. Kumar v. Sanjoga, (1953) ILR 32 Pat 903.

2.

Pradeep Chand Lall v. Grindlays Bank Ltd., AIR 1987 Cal 157 [LNIND 1986 CAL 125].

3.

Pais v. Mapanna, AIR 1956 Mad 128.

4.

Ram Narayan Singh v. Adhindra Nath, AIR 1916 PC 119; see also Ken v. Ruxton, (1904) 4 Cal LJ 510.

5.

Wahid-un-nissa v. Gobardhan, (1900) ILR 22 All 453, 461; Abbakke v. Kinhiamma, (1906) ILR 29 Mad 491; Bhugwan v. Parmeshwari, (1907) 5 Cal LJ 287; Jangi Singh v. Chander Mat, (1908) ILR 30 All 388; Ram Kishore v. Surajdeo, (1911) 9 Cal LJ 5.

6.

Narotam Das v. Sheo Pargash, (1884) ILR 10 Cal 740; Kalka Singh v. Parasram. (1895) ILR 22 Cal 434; Singjee v. Tiruvengadam, (1890) ILR 13 Mad 192; Anglo-Indian Trading Co. v. Brierly, 8 IC 302 (covenant to payout sale proceeds of manganese ore).

7.

Balkishen v. Legge, (1900) ILR 22 All 149; Ramasami o Samiyappanayakan, (1882) ILR 4 Mad 179, 183; Bhikkam Lal v. Janaki Dulari, AIR 1937 Oudh 517; Bishen Dutt v. Mathura Prasad, AIR 1939 All 260.

8.

Gopalasami v. Amnachella, (1892) ILR 15 Mad 304.

9.

Pell v. Gregory, AIR 1925 Cal 834 (FB); Paras Ramjaishi Ram v. Brij Mohan, AIR 1932 Lah 164.

10. Ghasiram v. Raja Mohan Bikram, (1907) 6 Cal LJ 639, 649; Rajagopalachariar v. Thiagaraya, AIR 1925 Mad 991; Bhikam Lal v. Mtjanak Dulari, AIR 1937 Oudh 517. 11. Jogeswar v. Nitaichand,(1870) 4 Beng LR App 48; Annaswami v. Nananaiyan, (1862) 1 Mad HCR 114; Sivakami v. Gopala, AIR 1963 Raj 100 [LNIND 1962 RAJ 61]. 12. Nityanand Ghose v. Rajpur Chhaya Bani Cinema Ltd., AIR 1953 Cal 208 [LNIND 1952 CAL 104]. 13. Har Kuar v. Udham Singh, AIR 1939 Lah 112. 14. Pars Ramjaishi Ram v. Brij Mohan, AIR 1932 Lah 164. 15. Luchmeshar v. Dookh, (1897) ILR 24 Cal 677, 679, followed in Kamal Nayan v. Ram Nayan, AIR 1930 Pat I52; Jamuna Singh v. Sheonandan Singh, 194 IC 392. 16. Ram Goapl v. Ram Chandra, AIR 1949 Nag 354; Raj Kumar Bharathi v. Surajdeo Sahi, AIR 1938 Pat 585. 17. Rangappa v. Thamappa, (1914) 26 Mad LJ 514.

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(IN) Poonam Pradhan Saxena : Property Law 18. Kamalambal v. M. Purushotam Naidu, AIR 1934 Mad 644 [LNIND 1934 MAD 61], 152 IC 437, (1934) 67 Mad LJ 499. 19. Appasami v. Virappa, (1906) ILR 29 Mad 362; Afiruddi v. Chandra, AIR 1930 Cal 703, 129 IC 108, (1930) 35 Cal WN 103. 20. Ramesh Kumar v. Yashpal Batra, AIR 2006 Del 286 [LNIND 2006 DEL 748]; Maung Yan Kuin v. Maung Po Ka, AIR 1925 Rang 223; Monimala Devi v. Indu Bala Debya, AIR 1964 SC 1295 [LNIND 1963 SC 281]; Unichaman v. Ahmed, (1898) ILR 21 Mad 242; Ramjewan v. Jagamath, (1898) ILR 25 Cal 450; Shambu Hat v. Shiam Narain, AIR 1934 Oudh 415. 21. Boota v. Gur Prasad, AIR 1937 Oudh 20; Re Errington, ex p. Mason, (1894_ 1 QB 11; Jamna Das v. Ram Autar, (1912) ILR 34 All 63; Tara Chand v. Brojo Gopal, (1913) 17 Cal LJ 120; Nanku Prasad v. Kamia Prasad, AIR 1923 PC 54; Jamna Das v. Ram Autar, (1912) ILR 34 All 63. 22. Dhana Koeri v. Ram Kewal, AIR 1930 Pat 570; Kinnaird v. Trollope, (1888) 39 Chd 636, 645; Delhi and London Bank v. Bhikari, (1902) ILR 24 All 185; Lockhart v. Hardy, (1845) 9 Beav 349. 23. Shore v. Shore,(1847) 2 Ph 378. 24. Gajadhar Prasad v. Rishabhkumar, (1949) ILR Nag 122. 25. Ram Barai Singh v. Sheodeni, (1912) 16 Cal WN 1040; Izzat-un-Nissa Begam v. Kunwar Pertab Singh, 36 IA 203; Janki Saran Singh v. Syed Mahammad Ismail, AIR 1932 Pat 273; Warington v. Ward, (1802) 7 Ves 332, 337; Bridgeman v. Daw, (1891) 40 WR 253; Manubhai Mahijibhai v. Trikamlal, AIR 1960 Bom 247 [LNIND 1958 BOM 66]. 26. Babu Ram v. Dhan Singh, AIR 1957 Punj 169. 27. Krishnaswami v. Kamalamma, AIR 1941 PC 90 (where the memorandum of deposit of title deeds being ineffective for want of registration, a personal decree was passed on the pronote); but see Kesari Ram v. Musafir Tewari, AIR 1937 All 711, where in a similar case a personal decree was not passed as there was no personal covenant. 28. Ram Narayan Singh v. Adhindra Nath, AIR 1916 PC 119. 29. Tulshi Ram v. Sat Narain, AIR 1921 All 392; Har Prasad v. Sheo Gobind, AIR 1922 All 134; Kanhai v. Tilak, 16 IC 42; Hamad Yar Khan v. Shankar Das AIR 1923 Lah 357 (mortgage in contravention of the Colonization of Government Lands Act ); Bhikkan Lal v. Janaki Dulari, AIR 1937 Oudh 517 (Mortgage in contravention of Para 11 of Sch3, CPC); Bhusi Ram v. Ganesh Rai, AIR 1927 All 499 (FB). 30. Ram Sewak v. Sheo Nath, AIR 1923 All 433; Sheo Golam v. Roy Dinkar Dayal, (1874) 21 WR 226. 31. Venkateshwara v. Kesava, (1879) ILR 2 Mad 187; Vithoba v. Chotalal,(1871) 7 Bom HC 116 ACJ. 32. Prokash Chandra v. Hasan Banu, (1918) 42 Cal 1146; Sajjadi Begum v. Janki Bibi, 20 OC 256. 33. Fateh Din v. Kishen Lal, AIR 1923 All 584; see also Boochi v. Bohre Nath, AIR 1932 All 51, wherein it was held that such a case would not fall under the present cl (c), as the reduction of the rent was not a default or wrongful act. 34. Ratti Ram & Sons v. Motilal, AIR 1949 PC 68. 35. Ganesh Das v. Maya Ram, (1882) All WN 99. 36. Shamsuddin v. Mansha Singh, AIR 1968 P&H 35. 37. Mote Ram v. Bisheshwar Nath, AIR 1939 Pesh 34. 38. Boota v. Gur Prasad, AIR 1937 Oudh 20. 39. Kamalambal v. M. Purushotam Naidu, AIR 1934 Mad 644 [LNIND 1934 MAD 61]; Kuppier v. Periakaruppa, (1919) ILR 42 Mad 578, 580. 40. See Bhawani v. Jang Bahadur, 6 IC 569, wherein the court held that six months would be reasonable time. 41. Gajanand v. Rani Prayag Kumari, AIR 1938 Cal 48. 42. Ramkrishna Chetty v. Vuvvati Chengu, (1914) 27 Mad LJ 494. 43. Haridas v. Jagannath, AIR 1939 Nag 256. 44. See The Transfer of Property Act, s. 68(1)(c). 45. Appasami Thevan v. Virappa, (1906) ILR 29 Mad 362; Ram Narayan Singh v. Adhindra Nath, AIR 1916 PC 119. 46. Singjee v. Tiruvengadam, (1890) ILR 13 Mad 192. 47. Debi Prasad v. Sheo Narain, 21 IC 581; Rudra Prasad v. Nasiruddin, AIR 1927 Oudh 315. 48. Radha Churn v. Parbuttee Churn, (1876) 25 WR 51; Bhola Nath v. Hira Mohan, 7 IC 251. 49. Kunhiraman v. Aruthalai Kutti, 7 IC 173; Ganesh Singh v. Sujhari, (1888) ILR 10 All 47; see also Bhugwan Acharjee v. Gobind, (1883) ILR 9 Cal 234.

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(IN) Poonam Pradhan Saxena : Property Law 50. Ramakrishnama Chetty v. Vuvvati Chengu, (1914) 27 Mad LJ 494. 51. Mathura Devi v. Mohan Lal, AIR 1938 Oudh 210. 52. Appasami Thevan v. Virappa, (1906) ILR 29 Mad 362. 53. Amirulla v. Rasul Baksh, (1919) 17 All LJ 474. 54. Raghunath v. Dadaji, AIR 1922 Bom 217; Shahzad Singh v. Narain Kurmi, AIR 1927 All 190. 55. Kuppier v. Periakaruppa, (1919) ILR 42 Mad 578. 56. Chitkale v. Mathura, (1905) 3 Cal LJ 220; Jowand Singh v. Sawan Singh, AIR 1933 Lah 836. 57. Jhabbu Ram v. Girdhari, (1884) ILR 6 All 298; Gokul v. Shrimal, (1904) 6 Bom LR 288; see also Janki Singh v. Sheomangal Singh, (1881) All WN 59; Ma Pwa Thein v. Ma Me Tha, AIR 1936 Rang 80. 58. Gopalasami v. Arunachella, (1892) ILR 15 Mad 304. 59. The rule is not applicable to a mortgage by conditional sale, see Badri Das v. Besu, AIR 1933 Lah 174; Kehar Singh v. Jeon Singh, AIR 1962 Punj 465, nor can it be availed of by a charge-holder, in proceedings in execution of a decree, without resorting to a suit, even if the security has been impaired by the conduct of the person creating the charge, see Kesar Chand v. Uttam Chand, AIR 1945 PC 91. 60. See The Transfer of Property Act, 1882, s. 68(1)(d). 61. Revanna v. Sanna Setty, AIR 1958 Mys 32; Unichand v. Ahmed, (1898) ILR 21 Mad 242; Lajimal v. Mohan Lal, (1881) All WN 71. 62. Ram Padarath v. Nimar Singh, AIR 1942 Oudh 172. 63. Linga Reddi v. Sama Ran, (1894) ILR 17 Mad 469. 64. Ramanatha v. Annamalai Chettiar, AIR 1963 Mad 342 [LNIND 1962 MAD 114]; Sidramaya Nilkanthayaswami v. Danya Shidramappa, AIR 1954 Bom 407 [LNIND 1953 BOM 79]. 65. Ramanatha v. Annamalai Chettiar, AIR 1963 Mad 342 [LNIND 1962 MAD 114]. 66. Kirti Narayan v. Surendra Mohan, AIR 1934 Pat 624. 67. Moidin Kutti v. Valia,(1866) 2 Mad HC 315. 68. Pargan Panday v. Mahatam Mauto, (1905) 6 Cal LJ 143. 69. Ramranandan Parbat v. Deni Sahi, AIR 1924 Pat 91; Talik Singh v. Jalal Singh, (1910) 11 Cal LJ 136; Nand Bahadur v. Sita Ram, AIR 1936 Oudh 174. 70. Sawaba Khandapa v. Abaji, (1887) 11 Bom 475; Ram Surat v. Gur Prasad, AIR 1921 All 48. 71. Ahmadullah Khan v. Salar Bakhsh, (1905) ILR 27 All 488. 72. Him Lal v. Ghasitu, (1894) ILR 16 All 318 (FB). 73. Ramnarain v. Sukhi, AIR 1957 Pat 24. 74. Sukhdeo Misr v. Sheo Dial, (1901) All WN 52. 75. Fateh Din v. Kishen Lal, AIR 1923 All 584. 76. Ram Narain Singh v. Adhindra, AIR 1946 PC 252; Pinto v. Narayan, AIR 1932 Bom 558. 77. Parbati Kuar v. Durga Prasad, AIR 1949 Pat 467. 78. The heirs of a mortgagee can sue on a cause of action accruing after the death of the mortgagee without obtaining a succession certificate, but not if the cause of action accrued in his lifetime, see Umesh Chandra v. Mathura Mohan, (1901) ILR 28 Cal 246. 79. Kanaiyalal v. Dhanji, AIR 1952 Kutch 18. 80. Surji Mahton v. Parbhu Chand Sao, AIR 1950 Pat 34. 81. Bechu Sahu v. Arjun, (1918) 3 Pat LJ 162; Thakur Chowdhury v. Manrup Mahton, 16 IC 735; Sankata v. Jagat Narain, 2 OC 24. 82. Gopiram v. Shankar Rao, AIR 1950 MB 72. 83. See The Transfer of Property Act, 1882, s. 68(1)(d). 84. Muhammad Hanifv Ishri Prasad, AIR 1922 All 197. 85. Kashi Lal v. Shaikh Nurul Huq, AIR 1929 Pat 209. 86. Dunia Lal v. Musst Nowratan, (1917) 2 Pat LJ 490.

Page 55 of 75

(IN) Poonam Pradhan Saxena : Property Law 87. Bharat Ram v. Beni Dutt, AIR 1936 Oudh 263. 88. LC Pais v. Mapanna Bhatta, AIR 1956 Mad 128; Amjad Husain v. Zaimullba, AIR 1927 Oudh 87; Pranpati v. Hasiban, AIR 1932 Oudh 57; Raja Pertab Bahadur v. Gajadher, (1902) ILR 24 All 521; Khuda Bakhsh v. Alim-un-nissa, (1905) ILR 27 All 313; Uchit Mandar v. Gosain Singh, 51 IC 816; Jhunku Singh v. Chhotkan Singh, (1909) ILR 31 All 325; Prasanna Kumar Holder v. Girish Chandra, AIR 1934 Cal 149. 89. Sheo Shankar v. Rajjas, AIR 1927 Oudh 594; Narul Hasan v. Mahbub Bux, AIR 1945 All 203 (FB); Mahadaji v. Joti, (1892) 17 Bom 425; Bhawani Prasad v. Saheb Din, 9 OC 144; Dubri v. Ram Naresh, AIR 1920 Cal 224; Mahadeo v. Sitla Baksh, AIR 1922 Oudh 102; But see Joseph Mattom v. Free India Bank Ltd., AIR 1966 Ker 234 [LNIND 1965 KER 326]. 90. Phukhand v. Sandilands, 10 OC 29. 1.

Pratap Bahadur Singh v. Gajadhar Bakshi Singh, ILR 24 All 529; Dalsingh v. Sunder Koer, AIR 1944 Oudh 208.

2.

Subramania v. Panchanada, AIR 1932 Mad 175 [LNIND 1931 MAD 98]; Kumarappa v. Suppan, AIR 1933 Mad 672 [LNIND 1933 MAD 98]; Sita Nath v. Thakurdas, (1919) ILR 46 Cal 448; Linga Reddi v. Sama Rao, (1894) ILR 17 Mad 469; Mahesh Singh v. Chauharaja, (1882) ILR 4 All 245.

3.

Nurul Hasan v. Mahbub Baksh, (1945) All 676 (FB).

4.

It implies the whole of the security, and does not apply if there is an abandonment of part of the security, see Chand Mall v. Ban Behari, AIR 1924 Cal 209; Or where the mortgagee has no security to abandon, see Chunnilal v. Amir Ahmedi Bee, AIR 1958 AP 608.

5.

Where a suit is brought under cl(a) or cl(b) of sub -s. (1). See The Transfer of Property Act, 1882, s. 68(2).

6.

A mortgagor who wishes to avail himself of the benefit of s. 68(2) can only do so on the tacit assumption that there was a valid mortgage. He cannot deny the mortgage and at the same time invoke the discretionary relief under s. 68(2), see Nityanand Ghose v. Rajpur Chhaya Bant Cinema Ltd., AIR 1953 Cal 208 [LNIND 1952 CAL 104].

7.

The right of an equitable mortgagee of properties in Burma to sue the mortgagor in Madras because the deposit was made in Madras, was not affected by sub-s. (2) as no suit could have been filed on the mortgage in Madras, see CVRMRamaswami v. Jeevarathunammal, AIR 1957 Mad 106 [LNIND 1956 MAD 120].

8.

Arunchalam Chetti v. Ayyavayyan, (1898) ILR 21 Mad 476, 481 (FB); Nityanand Ghose v. Rajpur Chhaya Bant Cinema Ltd., AIR 1953 Cal 208 [LNIND 1952 CAL 104]; Appasami Thevan v. Virappa, (1906) ILR 29 Mad 363.

9.

Gauri Singh v. Bechu Singh, AIR 1933 All 97; Kalka Singh v. Himayat Ally, 10 OC 218; Ramchandra Rao v. SV Co. Ltd., AIR 1952 Mys 125.

10. Fatal Din v. Milka Singh, AIR 1933 Lah 193. 11. Lazarannassa Bibi v. Mahomedjaffer, 13 IC 336; Aghore Nath v. Naiabar, 41 IC 406. 12. It is a supplemental right so that he can file a suit in the alternative for recovery of possession or for the mortgage money, see Linga Reddi v. Sama Ran, (1894) ILR 17 Mad 469; Arunachalam Chetti v. Ayyavayyan, (1898) ILR 21 Mad 476. 13. Durga Charan v. Ambica Charan, AIR 1927 Cal 393; Sarajbala v. Kamini Kumar, AIR 1926 Cal 765; Ramanathan v. Somasundamm, AIR 1964 Mad 519 [LNIND 1963 MAD 269]. 14. Chedi Lal v. Saadat-un-nissa, (1917) ILR 39 All 36; Ganesh Singh v. Debi Singh, (1910) ILR 32 All 377; Tamukh Rai v. Sri Gopal, AIR 1921 All 131; Suraj Narain v. Jagbali Shukul, (1920) ILR 42 All 566; Gomathi Ammal v. Alagappa, AIR 1921 Mad 477 [LNIND 1921 MAD 29]. 15. Madho Prasad v. Debi Dial, (1891) All WN 168; Kadma v. Muhammad Ali, (1919) ILR 41 All 399. 16. Haribans Rai v. Sri Niwas, (1913) ILR 35 All 518. 17. The rule was applied to an English mortgage between a company, and trustees for debenture-holders, some of the trustees being Hindus, see LVApte v. RGN Price, AIR 1962 AP 274; see also Kanhaya Lal v. National Bank of India, AIR 1923 PC 114. 18. It refers to a clause expressly included in a mortgage, see Mulraj v. Nanumal, AIR 1942 Bom 46. The power of sale must be expressed and a provision in a mortgage deed that the mortgagee should have all the rights, powers, remedies and privileges conferred upon a mortgagee by The Transfer of Property Act, 1882 is not an express power of sale, see Mataprasad Upadhya v. Kunnon Devi, AIR 1928 Rang 128. 19. This territorial limitation was challenged as being discriminatory, and unreasonable, contrary to arts14 and 19 of the Constitution but this contention was rejected, see Narasimhachariar v. Egmore Benefit Society, AIR 1955 Mad 135 [LNIND 1954 MAD 240]. 20. The expression ‘town of Bombay in s. 69 was to be construed as referring to the area within the limits of the ordinary original civil jurisdiction of the Bombay High Court, Trimbak Gangadhar v. Bhagwanda, (1899) ILR 23 Bom 348; see also the Greater Bombay Laws and Bombay High Court (Declaration of Limits) Act, 1945, s. 8. 21. In addition to these, other areas notified are—city of Ahmedabad, see Bombay Governemnt Gazette (1960) Pt IV A, p. 902 and towns of Delhi and New Delhi, see Gazette of India 1962, Pt. 11, p. 1944.

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(IN) Poonam Pradhan Saxena : Property Law 22. The power of sale referred to in this section is a power of sale without the intervention of the court, and is distinct from the power of a simple mortgagee to cause the mortgaged property to be sold see Kishan Lal v. Ganga Ram, (1891) ILR 13 All 28, and does not affect it adversely, see Muthialpet Benefit Fund v. Devarajulu, AIR 1955 Mad 455 [LNIND 1955 MAD 2]; Goburdhun Bysack v. Sonatum, (1874) 23 WR 84. The right recognised by this section may be exercised even after a receiver has been appointed under s. 69A, see Saraswathi Bai v. Varadarajulu Ndicker, AIR 1956 Mad 385; Krishnammal v. N Krishna, AIR 1956 Mad 424 [LNIND 1956 MAD 257]. If there is a fraud then there may be cause of action against the purchaser to have the sale declared void or to have it set aside on the ground of fraud. See Satyapal Uttamchand Chowdhary v. Rukayyabai Husseinbhai Bandukwala, AIR 1993 Bom 203 [LNIND 1992 BOM 264], 211. 23. P. Kasturi Bai v. T. Varadam,(1981) 2 Mad LJ 247. 24. Kamalambai v. M. Purushotam Naidu, AIR 1934 Mad 644 [LNIND 1934 MAD 61]. 25. Miller v. Cook, (1870) LR 10 Eq 641. It also has the effect of overruling the Privy Council decision that a power of sale in default of payment of interest is invalid as a penalty; see Vencatavarada v. Venkata, (1875) 23 WR 91 PC. 26. Babamiya v. Jehangir, AIR 1941 Bom 339. A stipulation for a period of 15 days is invalid, see Madras Deposit & Benefit Society v. Passanha,(1888) 11 Mad 201. 27. Metters v. Brown, (1863) 33 LJCH 97. 28. Yuvarajan v. The Mylapore Hindu Permanent Fund Ltd., (1975) 2 Mad LJ 414. 29. Santhankumar v. Indian Bank, AIR 1967 SC 1296 [LNIND 1967 SC 35]. 30. Doolabhdas v. Chhabildas, (1899) 1 Bom LR 273. 31. Jerup Teja v. Peerbhoy, AIR 1921 Bom 421. 32. Purasawalkam v. Kuddus, AIR 1926 Mad 841 [LNIND 1925 MAD 115]. 33. AC Kundu v. Banu Rukmanand, 43 IC 921. 34. Mancherji Furdoonji v. Noor Mahomedbhoy, (1893) ILR 17 Bom 711. 35. Payne v. Cardiff Rural Council, (1931) All ER Rep 479. 36. Purasawalkam v. Kuddas, AIR 1926 Mad 841 [LNIND 1925 MAD 115], 94 IC 860. 37. Palmer v. Barclays Bank Ltd., (1971) 23 P&Cr 30; Forsyth v. Blundell, (1973) 129 CLR 477. 38. Belton v. Bass Ratcliffe and Gretton Ltd., (1922) 2 Ch 449, 465. 39. Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd., (1971) 2 All ER 633, 643, CA. 40. See Standard Chartered Bank Ltd. v. Walker, (1982) 3 All ER 938. 41. Champagne Perrier-Jonet SA v. HH Finch Ltd., (1982) 3 All ER 713, 725. 42. Mulraj v. Nanumal, AIR 1942 Bom 46; Hill v. Kirwood,(1880) 28 WR (Eng) 358 CA; Hickson v. Darlow, (1883) 23 Chd 690 (CA); Macleod v. Jones, (1883) 24 Chd 289 (CA); see also Duke v. Robinson, (1973) 1 All ER 481. 43. Rhodes v. Buckland,(1852) 16 Beav 212 ; see also Jagijivan v. Shridhar,(1878) 2 Bom 252, 285. 44. Clarke v. Japan Machines (Australia) Pvt. Ltd. (No. 2), (1984) 1 QDR 421. 45. Manjappa v. Krishnayya,(1905) 29 Mad 113. 46. Ramakrishna v. Official Assignee, AIR 1922 Mad 390 [LNIND 1922 MAD 31]. 47. Jerup Teja & Co. v. Peerbhoy, AIR 1921 Bom 421, 64 IC 634, (1921) 23 Bom LR 124; see also Jenkins v. Jones, (1860) 2 Giff 99 (refusing to accept mortgage money); Whitworth v. Rhodes, (1850) 20 LJ Ch 1105 (making an unauthorised demand); Babamiya v. Jehangir, AIR 1941 Bom 339. 48. Govindram Bros v. Official Assignee, AIR 1950 Bom 49 [LNIND 1949 BOM 79]. 49. Vallabhdas v. Pranshankar, AIR 1929 Bom 24; Society v. Abarupammal, AIR 1943 Mad 30. 50. VPPadmavathi Ammal v. PS Swaminatha Iyer, AIR 1975 Mad 343; see also Re Sree Yallamma Cotton Mills Ltd., AIR 1969 Mys 280. 51. Hodson v. Deans, (1903) 2 Ch 647. 52. Purmanandasjivandas v. Jamnabai,(1886) 10 Bom 49. 53. Dicker v. Augerstein, (1876) 3 Chd 600. 54. Madras Deposit & Benefit Society v. Passanha, (1888) ILR 11 Mad 201. 55. Mataprasad Upadhya v. Kunnon Devi, AIR 1928 Rang 128.

Page 57 of 75

(IN) Poonam Pradhan Saxena : Property Law 56. Jenkins v. Jones,(1860) 2 Giff 99 ; see also Chabildas Lauoobhai v. Mowji Dayal, (1907) ILR 31 Bom 566; Bailey v. Barnes, (1894) 1 Ch 25 (CA). 57. Selwyn v. Graft, (1888) 38 Chd 273 (CA). 58. Madras Deposit & Benefit Society v. Passanha, (1888) ILR 11 Mad 201. 59. Re Thompson v. Holt, (1890) 44 Chd 472. 60. Narandas Karsondas v. SA Kamtam, AIR 1977 SC 774 [LNIND 1976 SC 470]. 61. Rajah Kishendatt Ram v. Rajah Mumtaz Ali Khan, 6 IA 145. 62. Chabildas Lalloobhai v. Mowji Dayal, (1902) ILR 26 Bom 82. 63. Rajah Kishendatt v. Rajah Mumtaz Ali, 6 IA 145, (1880) ILR 5 Cal 198; Pichu Vadhiyar v. Secretary of State, 38 IC 986, (1917) ILR 40 Mad 767. 64. Haji Abdul Rahman v. Haji Noor Mahomed, (1892) ILR 16 Bom 141. 65. West London Commercial Bank v. Reliance Permanent Building Society, (1885) 29 Chd 954. 66. Ramakrishna v. Official Assignee, AIR 1922 Mad 390 [LNIND 1922 MAD 31]. 67. Govind Swami Naickar v. Pukhraj, AIR 1940 Mad 903. 68. Jagjivan v. Shridhar, (1878) ILR 2 Bom 252; Hill v. Kirwood, 28 WR 358; Hickson v. Darlow, (1883) 23 Chd 690; Macleod v. Jones, (1883) 24 Chd 289. 69. Clara Mookerjea v. Surendra, AIR 1963 Mad 208 [LNIND 1962 MAD 110]; Warner v. Jacob, (1882) 20 Chd 220, 224; Haddington Island Quarry Co. v. Huson, (1911) AC 722. 70. Having the right to exercise a power of sale under The Transfer of Property Act, 1882, s. 69. The provisions of this section apply only if and as far as a contrary intention is not expressed in the mortgage-deed see The Transfer of Property Act, 1882, s. 69(9). 71. Subject to the provisions of The Transfer of Property Act, 1882, sub-s. (2). The provisions of the section cover a case in which it is alleged by the mortgagor that there is no debt outstanding or that the mortgage has become time-barred and thereupon, there should be no receiver see Venkatanarayan v. Champalal, AIR 1954 Mad 8961. 72. The power may be exercised even after the mortgagee has gone into possession. See Refuge Assurance Co. v. Pearllerg, (1938) 3 All ER 231, a receiver is not generally appointed by the court under such a clause in the mortgage decree after the final decree has been made, see Re Renula Base, AIR 1938 Cal 93. 73. A receiver appointed under this section may be removed for due cause, see Venkatanarayana Rao v. C. Savansukha, AIR 1954 Mad 896 [LNIND 1953 MAD 238]. 74. Appointed under the powers conferred by this section. 75. However a contract entered into by the mortgagor is not binding upon the receiver, see Radhakrishna v. Thiruvenkatiah, AIR 1963 Mad 449 [LNIND 1962 MAD 150]. 76. The receiver is not accountable to the mortgagor but to the mortgagee, see Cohen v. Bindyanath, AIR 1938 Cal 507. 77. The agency may be modified by the terms of the deed, see Richards v. Kidderminster Corpn., (1896) 2 Ch 212, 220. 78. There is no power conferred by this section on the receiver to let out the mortgaged property on ‘leave and licence basis, see Sakamari Steel and Alloys Ltd. v. State Industrial and Investment Corpn., AIR 1979 Bom 66 [LNIND 1978 BOM 191]. 79. Weathemll v. Eastern Mortgage Agency Co., (1911) 13 Cal LJ 495; Ghanashyam v. Gobinda, (l902) 7 Cal WN 452. 80. Ram Kumar v. Chartered Bank, AIR 1925 Cal 664. A simple mortgagee is not disentitled merely because the personal remedy does not subsist; see Paramasivan v. Ramasami, AIR 1933 Mad 447 [LNIND 1932 MAD 222]; see also Nrisingha Charon v. Rajniti Prasad, AIR 1932 Pat 360; State Bank of India v. The Podar Mills Ltd., AIR 1989 Bom 21 [LNIND 1988 BOM 117], 24; Rameshwar Singh v. Chunni Lal, (1920) ILR 47 Cal 418; Ma Hum Yick v. KARKFIRM, AIR 1939 Rang 321 (FB); Damodar v. Radhabai, AIR 1939 Bom 54; But he has no charge on the rents and profits in the hands of the receiver so as to have preference over the Crown debts, see Sambasiva Chettiar v. Secretary of State, AIR 1940 Mad 703 : (1940) 1 Mad LJ 429; Collector, Tiruchirappali v. Trinity Bank Ltd., AIR 1962 Mad 59 [LNIND 1961 MAD 33](FB). 81. Ramesiwar Singh v. Chunni Lal, (1920) ILR 47 Cal 418. 82. Khubsurat Kuer v. Saroda,(1911) 16 Cal WN 126. 83. JC Gatstaun v. Prudential Insurance Co., AIR 1932 Cal 366. 84. Nrishinha Kumar Sinha v. Deb Prosanna Mukherji, AIR 1935 Cal 460. 85. Rameshwar Singh v. Chunni Lal, (1920) ILR 47 Cal 418; Maharaja of Pithapuram v. Gokuldoss, AIR 1931 Mad 626 [LNIND 1931 MAD 53]; Official Assignee v. Punjab National Bank, AIR 1932 Sau 82; Re Imperial Bank of India, AIR 1940 Cal 429.

Page 58 of 75

(IN) Poonam Pradhan Saxena : Property Law 86. Ponnu Chettiar v. Sambasiva Ayyar, AIR 1933 Mad 293 [LNIND 1932 MAD 153]. 87. Hand v. Blow, (1901) 2 Ch 721, 732 (CA). 88. Amamath v. Abhoy, AIR 1949 Pat 24. 89. An accession made by the mortgagor after the property has been sold in execution of the mortgagees decree does not pass to the mortgagee or to the purchaser at the court sale, see Sivananjiah v. Sitha v. Goudar, AIR 1921 Mad 627 [LNIND 1921 MAD 54]; Sripad v. Kashibai, AIR 1945 Bom 248; Kastoori Devi v. Guru Granth Saheb, AIR 1965 All 193; Haradhan v. Hargobind, AIR 1921 Pat 188; see also Aruwgiri v. Radha Krishna, AIR 1942 Mad 44; Ajijuddin v. Sheik Budun, (1895) ILR 18 Mad 492, where an accession acquired after the decree was sold. 90. Bhupendra v. Vajihunnissa, (1917) 2 Pat LJ 293; Gansabai v. Baswani, (1910) ILR 34 Bom 175; see also Vishnu v. Tatia,(1863) 1 Bom HC 22. 1.

Ganapatji v. Saadat Ali, (1880) ILR 2 All 787.

2.

Satyanarayan Murthy v. Ganagayya, AIR 1939 Mad 684 [LNIND 1938 MAD 150].

3.

Krishna Gopal v. Miller, (1902) ILR 29 Cal 803; Mackod v. Kissan, (1906) ILR 30 Bom 250, 262; Southport and West Lancashire Banking Co. v. Thompson, (1887) 37 Chd 64; Amar Singh v. Bhagwan Das, AIR 1933 Lah 771; Atmukur Chetty v. Thimpurasundar, AIR 1965 Mad 185 [LNIND 1964 MAD 60].

4.

Saila Bala v. Swerna Moyee, AIR 1939 Cal 275.

5.

PMPM Chettyar Firm o Siemens Ltd., AIR 1933 Rang; Reynolds v. Ashby & Sons, (1904–7) All ER Rep 401.

6.

Punjab and Sindbank v. Kishen Singh, AIR 1935 Lah 350.

7.

Nannu Mal v. Ram Chandra, AIR 1931 All 277 (FB).

8.

Bakshiram v. Darku, (1873) 10 Bom HCR 369.

9.

Sidheshwar Prasad v. Ram Samop, AIR 1963 Pat 412 (FB).

10. Bhagwantrao v. Subkaran, AIR 1929 Nag 225. 11. Shyama Churn v. Ananda Chandra,(1898) 3 Cal WN 323. 12. Ajudhia Prasad v. Man Singh, (1903) ILR 25 All 46. 13. Ajijuddin v. Sheikh Budan, (l895) ILR 18 Mad 492. 14. Behary Lal v. Indra Narayan, AIR 1927 Cal 665. 15. M K Ramesh Kumar v. Asset Reconstruction Company (India) Ltd., AIR 2008 AP 45 [LNIND 2007 AP 904]. 16. Mala Singh v. Budh Singh, 25 IC 616. 17. Tay Gyi v. Mating Yan, AIR 1933 Rang 81. 18. Kodi v. Moidin,(1918) 35 Mad LJ 120. 19. Baljit Singh v. J. Cunnington, AIR 1984 All 209 [LNIND 1984 ALL 45]. 20. Deolie Chand v. Nirban Singh, (1879) 5 Cal 253. 21. Ram Saran Das v. Ram Pergash Das, (1905) ILR 32 Cal 283. 22. Villa v. Petley, AIR 1934 Rang 51. *

C1(a) omitted by Act 20 of 1929, Sec. 37.

23. The question what expenditure is necessary is one of fact to be decided with regard to the circumstances of each case, see Kadar Moideen v. Nepean, (1899) ILR 26 Cal 1; Jagannath v. Jagjiwan, AIR 1925 Oudh 429, costs incurred by mortgagee form part of the entire decretal amount, see Maharaj Bahadur Singh v. Basiruddin, AIR 1925 Cal 1135, but those incurred by the mortgagee after a proper tender of the mortgage money are disallowed; see Dhondo v. Balkrishna, (1884) ILR 8 Bom 190. 24. The expenditure of money by the mortgagee under shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title. 25. If a lease is terminated by forfeiture, the mortgagee may apply for relief, and the new lease so granted is part of the original security, see Chehea Investment Co. Ltd. v. Marche, (1955) 1 All ER 195. 26. The rule applies when there is no contract to the contrary. Thus, where the0 mortgagee has undertaken to incur all the expenses necessary for the recovery of the property, he is not entitled to the costs of litigation in which he is obliged to contest the claim of a rival jenmi; see Thekkamannengath v. Kakkasseri, (1915) 28 Mad LJ 184.

Page 59 of 75

(IN) Poonam Pradhan Saxena : Property Law 27. A usufructuary mortgagee spending money when he is authorised retains possession until the whole amount is discharged out of the usufruct, see Abdul Qayyum v. Sadruddin, (1905) ILR 27 All 403; Mohamed v. Sheodanhan, (1907) 4 All LJ 176; see also Foodeni Sah v. Azhar Hussain, AIR 1931 Pat 325; Though a personal right of suit can still be maintained, see Venkitaswami v. Muthuswamy, AIR 1919 Mad 1102; Parsotam v. Jaijit, (1890) All WN 90; Umesh Chandra v. Khulna Loan Co., (1907) ILR 34 Cal 92; see also for another opinion Nikka v. Gardner, (1879) ILR 2 All 193 4; Murray v. MSM Firm, AIR 1936 Rang 47, but in such cases the amount cannot be tacked to the mortgage; see Imdad Hasan v. Badri Prasad, (1898) ILR 20 All 401. 28. As a general rule interest is at the rate specified in the mortgage, Kami Fizza v. Datadin, AIR 1925 Oudh 678. 29. Interest is allowed on expenditure under this section. It should be simple, not compound, see Kishori Mohun v. Gunga Bahu, (1896) ILR 23 Cal 228; an interest at 6 percent is allowed Karnaya v. Devapa, (1898) ILR 22 Bom 440, 446. 30. Hamappa v. Ramangouda, AIR 1956 Bom 575 [LNIND 1955 BOM 144]; Asarfi v. Ram Swaroop, AIR 1972 Pat 183. The English rule, however, allows the costs of recovering the debt from a surety who had only given a promissory note; see National Provincial Bank v. Games, (1886) 31 Chd 582, the English rule also negatives the remedy by personal suit against the mortgagor to enforce the mortgagees claim for expenses, for it does not rest on an implied contract by the mortgagor and can only be enforced as a condition of redemption; see Re Sneyd, ex p. Fewings, (1883) 25 Chd 338; Nadershaw v. Shrinibai, AIR 1924 Bom 264; Under the English law, the costs of negotiating the loan and preparing the mortgage are costs leading up to the mortgage and not costs incurred qua mortgagee. Hence, though the mortgagor may be personally liable for these costs, they cannot be added to the security and recovered as costs, charges and expenses; see Wales v. Can, (1902) 1 Ch 860; see also Re Smiths Mortgage, Hanison v. Edwards, (1931) 2 Ch 168, (1931) All ER 698. 31. A contract to the contrary may require a mortgagee to rebuild the house at his own expense in case of fire; Sakharamshet v. Amtha, (1890) ILR 14 Bom 28; see also Moorgate Estates Ltd. v. Trower, (1940) 1 All ER 195. 32. If the mortgagor has insured the mortgaged property, the insurance money belongs to the mortgagor, and the mortgagee may require him or even a creditor of the mortgagor who has attached the insurance money to apply the money in reinstating the property; see Simot v. Bowden, (1911–13) All ER Rep 752. 33. A mortgagee is not authorized to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorized to insure. See The Transfer of Property Act, 1882, s. 72. 34. Amnachella v. Sithayi, (1896) ILR 19 Mad 327; Surajmal v. Chunderbhan, AIR 1939 Lah 129; Hamappa v. Ramangouda, AIR 1956 Bom 575 [LNIND 1955 BOM 144]; see however Dalsing v. Sunder Kunwar, AIR 1944 Oudh 208, wherein it was held that there is no necessity for the mortgagee, who is out of possession, to make the payment of land revenue without calling upon the mortgagor to pay the same. Some local revenue and municipal Acts give the mortgagee, whether in possession or not, a right to save his security by payment of arrears of assessment and to add the amount so paid to the mortgage money. For example, a darpatnidar in Bengal is entitled to consolidate the subsequent payments of rents to the original deposit made by him as a mortgagee in possession; see Midnapore Zamindari Co. Ltd. v. Saradindu Mukhopadhaya, AIR 1948 Cal 250. 35. Jagannath v. Jagjiwan, AIR 1925 Oudh 429. 36. Venkata Satteya v. Mulibai, AIR 1955 Andh Pra 274; Nilawa v. Krishnappa, (1906) 8 Bom LR 350 [LNIND 1906 BOM 14]; Rajkumar Lal v. Jaikaran Das, (1920) 5 Pat LJ 248; Girdhari Lal v. Bhola Nath, (1888) ILR 10 All 611; Anandi Ram v. Dur Najaf Ali, (1891) ILR 13 All 195; Lachman Singh v. Salig Ram, (1886) ILR 8 All 384; Kamaya v. Devapa, (1898) ILR 22 Bom 440; Upendra Chandra v. Tara Prosanna, (1903) ILR 30 Cal 794; Rakhohari v. Bipra Das, (1904) ILR 31 Cal 975; Ma Pwa Kin v. KPSARP Firm, 43 IC 190; Ambica Charan v. Ramgati, 14 IC 718; Manohar Das v. Hazarimul, AIR 1931 PC 226; Hardwar Bhagat v. Sita Ram, AIR 1934 All 888. 37. Rupan v. Champa, (1915) ILR 37 All 81. 38. Sheo Dulare v. Batasha, 16 OC 48; Ram Prasad v. Salikram, (1882) All WN 210. 39. Hardeo Bakhsh v. Deputy Commr., AIR 1926 Oudh 281; Syed lbrahim v. Arumugathayee, (1915) ILR 38 Mad 18; Upendra Chandra v. Tara Prosanna, (1903) ILR 30 Cal 794; Rajendra Prasad v. Bahuria, (1916) 1 Pat LJ 589; Gya Prasad v. Gur Dayal, 22 OC 32; but see George v. South Indian Bank, AIR 1959 Ker 294 [LNIND 1958 KER 210]. 40. Vasudevayva v. Bhagirathibai, AIR 1950 Mad 333. 41. Damodar v. Vamanrav, (1885) ILR 9 Bom 435, 437; Pokree Saheb v. Pokree Beary, (1898) ILR 21 Mad 32; Godfrey v. Watson, (1747) 3 Atk 517, 518; Sandon v. Hooper, (1843) 6 Beav 246. 42. Venkitaswami v. Muthuswamy,(1918) 34 Mad LJ 177; Nadershaw v. Shirinbai, AIR 1924 Bom 264; see also Benjamin v. Devadoss, AIR 1955 Mad 245 [LNIND 1953 MAD 194]. 43. Dattaram v. Vinayak, (1904) ILR 28 Bom 181. 44

Re Leightons Conveyance, (1936) 3 All ER 1033.

45. RMARM Chettyar Firm v. VSPRM Chettyar Firm, AIR 1932 Rang 153. 46. Ramsden v. Langley,(1706) 2 Vern 536; Samuel v. Jones, (1862) 7 LT 760; Re Wallis, ex p. Lickerish, (1890) 25 QBD 176 (CA); Varadamjulu v. Dhanalakshmi, (1914) 16 Mad LT 365.

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(IN) Poonam Pradhan Saxena : Property Law 47. Minakshi Ayyar v. Janaki, AIR 1942 Mad 592 [LNIND 1942 MAD 109]. 48. Raja Sir Mahmud v. Hakim Saiyadali, AIR 1941 Oudh 498. 49. Sheo Darshan v. Beni Chaudhri, AIR 1926 All 424; Liverpool Marine Credit Co. v. Wilson, (1872) 7 Ch App 507, 512; Guardian Assurance Co. v. Avonmore (Lord),(1873) 7 LR Eq 496. 50. Maqbul Fatima v. Lalta Prasad, (1898) ILR 20 All 523; Mohanya v. Ram Bahadur, (1912) 16 Cal WN 731; Dambar Singh v. Kalyan Singh, (1918) 40 All 109; Amina Bibi v. Ram Shankar, (1919) ILR 41 All 473; Sheo Darshan Singh v. Beni Chaudhri, AIR 1926 All 424. 51. Prem Chand Pal v. Purnima Dasi, (1888) ILR 15 Cal 546; Beni Prasad v. Rewat Lall, (1897) ILR 24 Cal 746; Umartara Gupta v. Umacharan Sen, (1906) 3 Cal LJ 52; Narotam Das v. Thakur Suhhraj Singh, AIR 1928 Oudh 442; Krishna Chandra v. Bipin Behari, AIR 1938 Pat 179; Gobind Sahai v. Sibdut, (1906) ILR 33 Cal 878; Mukhram Maiwadi v. Bakshwar Mahton, AIR 1937 Pat 307. 52

Umartara Gupta v. Umacharan Sen, (1906) 3 Cal LJ 52.

53. Rasik Chandra v. Jagabandhu, AIR 1929 Cal 392; Prem Chand Pal v. Purnima Dasi, (1888) ILR 15 Cal 546. 54. Kapari Sahu v. Mathura Das, AIR 1934 Pat 209. 55. Chand Baboo v. Ashutosh Dutt,(1904) 9 Cal WN 117. 56. Rash Behari v. Kasum Kumari, AIR 1925 Cal 1145. 57. Topandas v. Jesaram, (1907) PR 17; Jotoni Chowdhurani v. Amor Krishna, (1908) 13 Cal WN 350; Ladu Prasad v. Nizam-ud-din, 54 IC 535; Viraragava v. Krishnasami, (1883) 6 Mad 344; Ashutosh v. Babu Lal, AIR 1971 Pat 372; Prag Din v. Nankau Singh, AIR 1930 Oudh 292; Sudhir Kumar Base v. Chandra Kanta, AIR 1955 Cal 560 [LNIND 1947 CAL 1](the mortgagee need not file a suit to enforce payment); Debendra Nath v. Mirza Abdul, (1909) 10 Cal LJ 150. 58. Basa Mal v. Tajammal, (1894) ILR 16 All 78. 59. Abdul Khaleque v. Medaswar, AIR 1967 Cal 56 [LNIND 1964 CAL 226]. 60. Mahomed Abdul v. Lalmiya, AIR 1947 Mad 254. 61. Girdhar Lal v. Alaya Hasan, AIR 1938 All 221. 62. Nallamuthu Pillai s. Aravamudhu, AIR 1952 Mad 263 [LNIND 1951 MAD 5]. 63. Sham Das v. Batul Bibi, (1902) ILR 24 All 538, a zamindari changed into an ex-proprietary right of sir lands; Jotindra Mohan v. Godadhur, (1897) 2 Cal WN 29 (a dartaluk changed into a patni). 64. Ooppath Naramparembath v. Koyakutti, 29 IC 344; Abdul Rahman v. Vinayak, AIR 1927 Bom 540; Fekna Mahto v. Bahilal Sahu, AIR 1939 Pat 362. 65. Nawab Sidhee v. Rajah Ojhoodhyaram, (1866) 10 MIA 540; Babaji v. Magniram, (1897) ILR 21 Bom 396; Kalappa v. Shivaya, (1896) ILR 20 Bom 492; Jaikaran Singh v. Sheo Kumar Singh, AIR 1927 All 747. 66. The Indian Trusts Act, 1882, s. 90. 67. Lakshmaya v. Appadu, (1884) ILR 7 Mad 111; also see Thulasi Bai Ammal v. Punapakkam Ramakrishnappa, AIR 1957 Andh Pra 430. 68. Sangapally Lakshmayya v. Intoory, (1903) ILR 26 Mad 385. 69. Ganga Sahai v. Tulsi Ram, (1903) ILR 25 All 371. 70. Central Bank of India v. S. Sachindra Mohan Ghosh, AIR 1933 Pat 257. 71. Shahebzada v. Hills, (1908) ILR 35 Cal 388. 72. Susilabala v. Dinabandhu,(1909) 14 Cal WN 186; Gusto Behary v. Shib Nath, (1893) ILR 20 Cal 241. 73. Padmanabh Bombshenvi v. Khemu Komar, (1894) ILR 18 Bom 684. 74. Gobind Lal Roy v. Ramajanam Misser, (1894) ILR 21 Cal 70; Krishwswami v. Thirumalai, AIR 1926 Mad 101. 75. Karan Singh v. Ishtiaq Husain, AIR 1921 All 312. 76. Amer Mohammed Ismail v. SASALLAGAPPA Chettiar,(1977) 1 Mad LJ 76. 77. Benarasi Prasad v. Mohiuddin, AIR 1924 Pat 586. 78. Amar Singh v. Bhagwan Das, AIR 1933 Lah 771; Nirmal Kunwar v. Sant Lal, AIR 1937 Pat 563; Ganga Prasad Sao v. Dalan Saran Singh, AIR 1937 Pat 345; Mahammad Afzal Khan v. Abdul Rahman, AIR 1932 PC 235; Hem Chunder Ghose v. Thako Moni, (1893) ILR 20 Cal 533; Lakshman v. Gopal, (1899) ILR 23 Bom 385; Joy Senkari v. Bharat Chandra, (1899) ILR 26 Cal 434; Amolak Ram v. Chandan, (1902) ILR 24 All 483; Pullamma v. Pradoshan, (1895) ILR 18 Mad 316; Muthia Raja v. Appala Raja,

Page 61 of 75

(IN) Poonam Pradhan Saxena : Property Law (1911) 20 Mad LJ 393; Hakim Lot v. Ram Lal, (l907) 6 Cal LJ 46; Shahebzada v. Hills, (1908) ILR 35 Cal 388; Bhup Singh v. Chedda Singh, (1920) ILR 42 All 596; Umar v. Sakharam, AIR 1933 Bom 485; Balakrishna Prasad v. Apurbo Krishna, AIR 1938 Pat 99; Deokinandan v. Aghorenath, AIR 1945 Pat 400; Rup Chand v. Madan Mohan, AIR 1960 Cal 351 [LNIND 1959 CAL 211]; see also Padmanabha Pillai v. P. Abraham, AIR 1971 Ker 154. 79. Mohammad Arful Khan v. Abdul Rahman, AIR 1932 PC 235. 80. Atmaram Sao v. Bhupendranath, AIR 1940 Nag 149. 81. Byjnath Lall v. Ramoodeen Chowdry, (1875) 21 WR 233. 82. Mohan Lal v. Wadhawa Singh, AIR 1934 Lah 660. 83. Liladhar Uttamchand v. Shiwaji Ganesh, AIR 1936 Nag 125. 84. P. Narasimham v. P. Venkata Narasimham, AIR 1973 Andh Pra 162. 85. See The s. 76; Canara Bank v. Bhawani Oil Co AIR 2004 Ker 273 [LNIND 2003 KER 662]; Mahadev Tambali v. Mahammad Saddiq, AIR 1949 All 189; Kamalapat v. Union Sugar Mills, AIR 1929 PC 256. 86. Kallu v. Ganesh, AIR 1929 All 348; Sivrqj Lal v. HPF Ltd., AIR 1943 Mad 62 [LNIND 1942 MAD 244]. A mortgagee is not in possession qua mortgagee if he enters the property as lessee, Gulab Chand v. Ram Kumar, AIR 1941 Pat 296; Page v. Linwood, (1837) 4 Cl & Fn 399, 434; Stanley v. Grundy, (1883) 22 Chd 478. 87. Upendra Nath v. Tara Nath, AIR 1962 Assam 52. 88. Venugppala Rao v. Hanumantha Rao, AIR 1958 Andh Pra 541. 89. Noyce v. Pollack, (1886) 32 Chd 53. 90. Matt Lal v. Eastern Mortgage and Agency Co., AIR 1921 PC 118. 91. Richards v. Kidderminster, (1896) 2 Ch 212. 92. Rangayya Chettiar v. Parthasarathi,(1887) 20 Mad 120; Kundanlal v. Mt Rupabai, AIR 1936 Nag 293. 1.

Madari v. Baldeo Prasad, (1905) ILR 27 All 351 (FB).

2.

Venkataraju v. Venkata Raghavayya, AIR 1958 Andh Pra 593 : AIR 1961 Bom 43 [LNIND 1959 BOM 132].

3.

LVApte v. RGN Price, AIR 1962 AP 274.

4.

This rule does not apply when the mortgagor is an agriculturist under the Deccan Agriculturists Relief Act, 1879, ss. 13 and 13A, Sakharam v. Dhaktojirao, AIR 1934 Bom 321.

5.

Jagannath v. Sripathibabu, AIR 1945 Mad 297 [LNIND 1945 MAD 106].

6.

Girjoji v. Keshavrav,(1864) 2 Bom HCR 211.

7.

Shah Mukhun Lal v. Baboo Sree Kishm Singh,(1868) 12 MIA 157.

8.

Shiva v. Jaru, (1892) ILR 15 Mad 290.

9.

Bagar All v. Nisar Husain, (1885) All WN 262.

10. Mahabir Gope v. Harbans Narain, AIR 1952 SC 205 [LNIND 1952 SC 26]; for the conflict of judicial opinion on this point see, Harihar Prasad Singh v. Munshi Nath Prasad, AIR 1956 SC 305 [LNIND 1956 SC 1]; see also Asa Ram v. Ram Kali, AIR 1958 SC 183 [LNIND 1957 SC 127]; G. Panniah Thevar v. Nellayam Perumal Pillai, AIR 1977 SC 244 [LNIND 1976 SC 492], wherein it was held that induction of tenant was not an act of prudent management. In Prabhu v. Ramdev, AIR 1966 SC 1721 [LNIND 1966 SC 64], the Supreme Court held that a tenant of a mortgagee can invoke the benefit of subsequent tenancy legislation which provided that such a tenant could not be evicted except in the circumstances set out in that legislation, Sachalmal Parasram v. Ratanbai, AIR 1972 SC 637. 11. Shea Barat Singh v. Padarath, 52 IC 473. 12. Karamat All Khan v. Ganeshi Lal, AIR 1977 All 552. 13. Pramatha Nath v. Sashi Bhushan, AIR 1937 Cal 763. 14. Ramchand v. Rajhans, (1906) 3 All 517; Jhagru Mian v. Raghunath, AIR 1929 Pat 630. 15. Gauri v. Mangla, AIR 1926 All 463. 16. Mahadeo Lal v. Sir Gobind, 78 IC 943. 17. Mahabir Gope v. Harbans Narain, AIR 1952 SC 205 [LNIND 1952 SC 26]. 18. Naravansa Dharamchandra v. Laxman Moti Ram, AIR 1976 Bom 61 [LNIND 1975 BOM 106]. 19. Laxminarayana v. Padmanabha, AIR 1972 Mys 81.

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(IN) Poonam Pradhan Saxena : Property Law 20. Gauri Shankar v. Kapoor Chand, AIR 1983 Raj 77; Kamlakar Co. v. Gulumshafi, (1962) 64 Bom LR 554AIR 1963 Bom 42 [LNIND 1962 BOM 19]; Bhamali Khushakhand v. Sha Shamji, (1957) 59 Bom LR 682; The tenant is also not entitled to protection under the Kerala Rent Control Act, in view of the special provision in s. 11(6) of the Kerala Debt Relief Act, see CK Kuttappan v. Karthiyayani, AIR 1981 Ker 107 [LNIND 1981 KER 4]; Devi Sahai v. Sardar Govindrao Mahadik, AIR 1992 MP 13 [LNIND 1991 MP 144], 21; Hariram Lehrumal Sindhi v. Anandrao Narayanrao Mukai, AIR 1992 MP 15; Pomal Kanji Govindji v. Vrajlal Karsandas Purohit, AIR 1989 SC 436 [LNIND 1988 SC 866]. 21. Champalal v. Gulabi, AIR 1981 Raj 130. 22. Carona Shoe Co. Ltd. v. KC Bhaskaran Nair, AIR 1989 SC 1110 [LNIND 1989 SC 146]. 23. Hanumant v. Mohan, AIR 1988 SC 299 [LNIND 1987 SC 802]. 24. Jadavji Purshottam v. Dhami Navnitbhai Amratlal, AIR 1987 SC 2146 [LNIND 1987 SC 640]. 25. Dalip Singh v. Financial Commr., AIR 1964 Punj 369; Mathra Puri v. Hukam Chand, AIR 1965 Punj 231. 26. Jagan Nath v. Mitter Sain, AIR 1970 P&H 104; Dhani Ram v. Deep Chand, AIR 1970 P&H 109; Kishori Lal v. Nohria Mal, AIR 1970 P&H 198. 27. So far as the urban property is concerned, this exception does not apply at all, Puran Chand v. Ganeshi Lal Tara Chand, AIR 1988 Del 1 [LNIND 1987 DEL 373]. 28. Ayyappan v. Karthiyayani Amma, AIR 1987 Ker 130 [LNIND 1986 KER 9]. 29. Wasu Ram v. Mahomed Ram, AIR 1940 Lah 199. 30. Afsar Shaik v. Saurava, (1917) 25 Cal LJ 560. 31. Bama Charan v. Nimai, AIR 1922 Cal 114. 32. Papamma Rao v. Pratapa Korkonda, (1896) ILR 19 Mad 249. 33. Parkinson v. Hanbury, (1867) LR 2 HL49; Chaplin v. Young (No. 1), (1864) 33 Beav 330, 337. 34. Kensington (Lord) v. Bouverie,(1855) De GM & G 134. 35. Ram Kishen Das v. Badri Bishal, AIR 1937 All 337. 36. Nona Sakharam v. Dadaji, AIR 1952 Bom 19; Mayer v. Murray, (1878) 8 Chd 424. 37. Ratan Dei v. Sher Singh, AIR 1929 All 260. 38. Ghulam Mahomed v. Rajeshwar, AIR 1940 Lah 333. 39. CN Chandra v. Dwarka Das, AIR 1936 Lah 42; Naming v. Shivu Rao, (1918) 41 Mad 1043; Said Ahmed v. Raja Barkhandi Mahesh, AIR 1932 Oudh 255. 40. Karson Champsi v. Meghji Asana, AIR 1941 Bom 28; Anandji v. Ahmedbhoy, AIR 1940 Bom 287. 41. Chunilal v. Abdul Karim, AIR 1937 Bom 483. 42. Gauri Nath v. Fateh Singh, 38 IC 537; Banarsi Prashad v. Ram Narair, (1903) ILR 25 All 287. 43. Darjorji v. Shripatprasadji, AIR 1927 Bom 145. 44. The liability to pay public charges is subject to a contract to the contrary and is therefore controlled by any special stipulation in the deed of mortgage, see Ooppath Naremparembath v. Koyakutti, 29 IC 344; Maharaj Singh v. Lalta Prasad, (1919) 17 All LJ 93; Panigatan v. Roman, (1907) 17 Mad LJ 517. 45. A mortgagee has to pay out of the income of the property and cannot charge such payment against the mortgagor in the accounts, see Abid Husain v. Kaniz Fattima, AIR 1924 PC 102; see also Narain Mishra v. Mahanth Mishra, AIR 1952 Pat 421, wherein it was held that the mortgagee is liable to pay the charges even if no money is left with him. 46. Public charges include tagavi advances, see Chhita Bhula v. Baijamni, (1916) ILR 40 Bom 483; Jhalliram v. Daulat Singh, AIR 1951 Nag 225 and local rates see Kesho Ram v. Ram Lal Saha, AIR 1936 AP 312; Ramakrishna Natale v. Chandrashekara Rao, AIR 1953 Mys 114. 47. When the mortgagee is not in possession the duty to pay the charges is of the mortgagor, see Munnabi v. Mohanlal, AIR 1953 Nag 259; but see Kshetra Nath v. Durgapada, 52 IC 902; Priyanath Sasmal v. Mmtunjoy Pani, AIR 1956 Ori 61, wherein it was held that the mortgagee is liable to pay the arrears even if they are due for a period before his entry into possession. 48. The lessor who is a third party cannot recover the arrears of rent from the mortgagee of a leasehold property, see Govindarajulu v. Gopal Swami, AIR 1941 Mad 401 [LNIND 1940 MAD 220]; Sachindra Mohan v. Commrs. for the Port of Calcutta, (1938) 1 Cal 21. 49. Jhalliram v. Daulat Singh, AIR 1951 Nag 255. 50. Jadubans Sahai v. Bahuria Phulpati, AIR 1957 Pat 452.

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(IN) Poonam Pradhan Saxena : Property Law 51. Gunnam Dorayya v. Vadapalli,(1914) 27 Mad LJ 295. 52. Hardwar Bhagat v. Sita Ram, AIR 1934 All 888. 53. Farzan Ali v. Mirza Sadiq, 22 OC 270. 54. The default of the mortgagee does not entitle the mortgagor to such credit, unless the mortgagor has actually paid, see Prasanna Kumar Haldar v. Girish Chandra, AIR 1934 Cal 149. 55. Jaijit Rai v. Gobind Tiwari, (1884) ILR 6 All 303. 56. Krishnan v. Kamath Ambu Kurup, AIR 1927 Mad 59 [LNIND 1926 MAD 283]. 57. Raj Mohan v. Sarada Charan, AlR 1936 Cal 200; Duraiswami Pillai v. Venkata Reddy, AIR 1940 Mad 233 [LNIND 1939 MAD 415]. 58. Jaikaran Singh v. Sheo Kumar Singh, AIR 1927 All 747; Kshetranath v. Dargapada, 52 IC 902; Lakshmaya v. Appadu, (1884) ILR 7 Mad 111; Kalappa v. Shivaya, (1896) ILR 20 Bom 492; Karthiyayani v. Panicker, AIR 1959 Ker 178 [LNIND 1958 KER 168]. 59. Abid Husain Khan v. Kaniz Fatima, AIR 1924 PC 102; Pannambatta v. Kalathinpadkil,(1914) 16 Mad LT 317; Thippa Ramaswami v. Krishnaswami,(1911) 9 Mad IT 206; Hari v. Shridhar,(1914) 10 Nag LR 9; Vasteva Holla v. Mahabala Rao, AIR 1926 Mad 405 [LNIND 1925 MAD 237]. 60. Sadanand v. Ratanji,(1886) PJ 68; Krishnier v. Arrappuli, (1904) 14 Mad LJ 488; Veyather v. Lakshiammal,(1909) 5 Mad LJ 284; Vasteva Holla v. Mahabala Rao, AIR 1926 Mad 405 [LNIND 1925 MAD 237]; Valia Achan v. Ravunni,(1911) 22 Mad LJ 151; Kolli Valappil v. Valiya, 14 IC 590; Nanu Nair v. Ashta, (1915) 29 Mad LJ 772; Faryind Ali v. Mirza Sadiq, 22 OC 270; Chempthoor Roman v. Nagalasari, 24 IC 870; Tuppan Nambudri a Chinna Pari, (1908) 18 Mad LJ 31; Sanhunni Varriar v. Neelakandhan, AIR 1943 Mad 620. 61. The duty is of the mortgagee to make necessary repairs out of the rents and profits, see Jamal v. Mahomed, (1874) PJ 7; Jogendwnath v. Raj Narain, (1868) 9 WR 488; Balaji v. Nana, (1881) PJ 195; Ragho Bagaji v. Anaji, (1868) 5 Bom HC 116 AC 95. 62. As to how much amount can be spent, see Anandram v. Premraj, AIR 1968 SC 250 [LNIND 1967 SC 250]. 63. See the s. 76(c). 64. Durga Singh v. Naurang, (1896) 17 All 282. 65. Kuttuva Narayanasami v. Soranammal,(1914) 15 Mad LJ 374. 66. Raghu v. Askraf, (l879) ILR 2 All 252; Shiva v. Jaru, (1892) ILR 15 Mad 290. 67. Lakshman v. Hari Dinkar, (1880) ILR 4 Bom 584, 589. 68. Ghasi Ram v. Bhola Nath, AIR 1924 All 153. 69. The mortgagor is entitled to be informed about the fallen trees and to the value of the timber cut, see Nani Kunjukrishnan v. P.Pillai, AIR 1959 Ker 38 [LNIND 1958 KER 81]; Chandi Avira v. Varkey, AIR 1951 Tr & Coch 109. 70. Mahabir v. Sheo Shankar, AIR 1929 Oudh 124; Ghasi Ram v. Bhola Nath, AIR 1924 All 153; Raghu v. Ashruf, (l879) ILR 2 All 252. 71. Krishna Patter v. Srinivasa, (1897) ILR 20 Mad 124; Ramchandra v. Shripati, AIR 1926 Bom 595; Vasudevan v. Valia, (1901) ILR 24 Mad 47 (FB). 72. V.Narayanan v. K. Sankaran, AIR 1960 Ker 298 [LNIND 1960 KER 55]. 73. Where insurance is effected not by the mortgagee but the mortgagor, the mortgagee has no claim to the insurance money as against the insurance company, see Dooly Chand v. Ramashwar, 40 IC 623; and if it is effected by the receiver, the application of the insurance money is at the discretion of the court, see PV Chetty Firm v. Motor Union Insurance, AIR 1923 Rang 6. 74. The mortgagee is under a statutory liability to maintain accounts of the income, Mahadev Tambali v. Mohammed Siddiq, AIR 1949 All 189, irrespective of whether he is in possession with or without the consent of the mortgagor; Nilkant Sein v. Sheikh Jaenoddeen, (1876) 7 WR 30. 75. The mortgagor can claim an account, when he files a suit for redemption, Bhau Balaji v. Hari Nilkanthrav, (1883) ILR 7 Bom 337; Gordhanlal v. Thakur Radha, AIR 1943 All 109, unless a statute for the benefit of agriculturists bars redemption, Muhammed KP v. Maya Devi, AIR 1971 Ker 290 [LNIND 1971 KER 31]. Under the Deccan Agriculturists Relief Act 17 of 1879, s. 15D as amended by Act 22 of 1882, an agriculturist is allowed the privilege of suing for an account without asking for redemption, Laluchand v. Girjappa, (1896) ILR 20 Bom 469. A prayer for an account is ancillary to the claim to redeem, no question of limitation arises between a mortgagor and mortgagee for accounts taken at the time of redemption, Banwari Singh v. Sakhraj, AIR 1931 All 585; Thekkamannengath v. Kakkasseri,(1915) 28 Mad LJ 184. 76. Krishna Gopal v. Bachhulal, AIR 1985 All 327 [LNIND 1985 ALL 69]. 77. Muhammad Mag Khan v. Rup Narain Singh, AIR 1931 All 562; Mahomed Sadiq v. Harakh Narain, AIR 1936 Pat 583.

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(IN) Poonam Pradhan Saxena : Property Law 78. Gaddhar Mal v. Kalooram, (1957) ILR Raj 250. 79. Madari v. Baldeo Prosad, (1904) 27 All 351 (FB). 80. Kundanmal v. Kashibai, (1902) ILR 26 Bom 363. 81. Goluck Chunder v. Mohan Lall, (1866) 5 WR 271. 82. Mokund Lall v. Goluck Chunder, (1888) 9 WR 572, if an agent is employed he has to show what the agent received from the tenants and not merely the lumpsums received, see Noyes v. Pollock, (1885) 30 Chd 336. 83. Nuwal Kishore v. Sayyud Inayat Ali,(1852) 7 Agra SD 248. 84. Ramchandra v. Janardan, (1890) ILR 14 Bom 19; see also Kader Moideen v. Nepean, (1890) 26 Cal 1 (PC). 85. Ram Kissen Singh v. Shah Kundun Lal,(1864) Gat No WR 177; Said Ahmed v. Raja Barkhandi Mahesh, AIR 1932 Oudh 255; Lal Bahadur v. Murli Dhar, AIR 1924 Oudh 92; Kudai Lal v. Aishajehan, AIR 1927 Oudh 199; Lachmi Narain v. Mohamadi Began, AIR 1932 Oudh 123. 86. Shah Mukhun Lal v. Sree Kishen Singh,(1868) 12 MIA 157. 87. Kamla Prasad v. Bamdeo, AIR 1935 Pat 148; Kishun Lal v. Hira Lal AIR 1929 Pat 571. 88. Lal Bahadur v. Murli Dhar, AIR 1924 Oudh 92; Muhammad Ishaq Khan v. Rup Narain Singh, AIR 1931 All 562; see also Chen Sankar Lal v. United Bank of India, AIR 1955 Cal 569 [LNIND 1955 CAL 62]. 89. Bihari Lal v. Shib Lal, AIR 1924 All 591. 90. Krishna Gopal v. Bachhulal, AIR 1985 All 327 [LNIND 1985 ALL 69]. 91. Muhammad v. Uttamchand, 63 IC 598. 92. Suratsing v. Nomanbhai, AIR 1961 Bom 43 [LNIND 1959 BOM 132]; Shadi Lal v. Lal Bahadur, AIR 1933 PC 85. 93. Hardeo Prasad v. Ganga Sahai, AIR 1921 All 197. 94. Khwaja Saiyed Kazi Husain v. Debi Dayal, AIR 1934 Oudh 104. 1.

Hardat Singh v. Damodar, AIR 1933 Lah 141.

2.

Amirchand v. Tirath Ram, (1908) Punj LR 95.

3.

Gulam Khoja v. Pandharinath, AIR 1948 Bom 579; Arunachalam Mudaliar v. Jagannatha, AIR 1948 Mad 132; Muthammal v. Razyi Filial, (1918) ILR 41 Mad 513; see also Syed Ibrahim v. Arumugathayee, (1915) ILR 38 Mad 18; Sri Ram v. Kesri Mat, (1904) ILR 26 All 185; Hari Krishna v. Gajendra Nath, AIR 1939 Cal 15.

4.

Ramavatar v. Tulsi Prosad, (1911) 14 Cal LJ 507.

5.

Occupation rent is charged if the mortgagee is in personal occupation and it represents what the land would yield if let to a tenant, see Raghoonath Roy v. Baraik, 7 WR 244; see also Kishun Lal v. Hira Lal, AIR 1929 Pat 571.

6.

But if the net receipts are less than the interest, the deficit is not added to the principal, as that would lead to compound interest which is not allowed, see Radhabenode Misser v. Kripa Moyee,(1872) 14 MIA 443.

7.

Time to time refers to annual rests, see Radhabenode Misser v. Kripa Moyee, (1872) 14 MIA 443; Jaijit Rai v. Gobind Tiwari, (1884) ILR 6 All 303; Muhammad v. Uttamchand, 63 IC 598; but see Kanakaraj v. Sundaraja lyer, AIR 1968 Mad 394 [LNIND 1967 MAD 31]; see also Doolee Chand v. Omda Khartum, (1881) ILR 6 Cal 377, wherein half yearly rests were ordered.

8.

Anandram v. Premraj, AIR 1968 SC 250 [LNIND 1967 SC 250].

9.

Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 [LNIND 1964 SC 324]; Satyanarayana v. Suryanarayana, AIR 1949 Mad 613 [LNIND 1948 MAD 55].

10. Bhau Balaji v. Hari Nilkanthrav, (1883) ILR 7 Bom 337; Gordhanlal v. Thakur Radha, AIR 1943 All 109. 11. Muhammed KP v. Maya Devi, AIR 1971 Ker 290 [LNIND 1971 KER 31]; as the prayer for an account is ancillary to the claim to redeem, no question of limitation can arise between a mortgagor and mortgagee when accounts are taken at the time of redemption; see also Thekkamannengath v. Kakkasseri, (1915) 28 Mad LJ 184; Banwari Singh v. Sakhraj, AIR 1931 All 585. 12. Raja Sir Mahmud v. Hakim Saiyadali, AIR 1941 Oudh 498; Leith v. Lryine, (1833) 1 M&K 277; see also Wilkes v. Saunion, (1877) 7 Chd 188. 13. Tipton Green Colliery Co. v. Tipton Moat Colliery Co., (1877) 7 Ch 192

.

14. Basant Singh v. Mata Baksh, 17 OC 47. 15. Pokree Sheb v. Pokree Beary, (1898) ILR 21 Mad 32. 16. Paliyadi Rajagopala v. Karruppiah, AIR 1946 Mad 464.

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(IN) Poonam Pradhan Saxena : Property Law 17. White v. City of London Brewery Co., (1889) 42 Chd 237. 18. Mahadeo v. Ramchandra, (1904) 6 Bom LR 590; Langstaffe v. Fenwick, (1805) 10 Ves 404 ; Re Wallis, ex p. Lickerish, (1890) 25 QBD 176; see also Kader Moideen v. Nepean, (1898) 26 Cal 1, wherein the son of a mortgagor was allowed cost of maintenance during the fathers lifetime but not when he himself became a mortgagee after the death of his father. 19. Hope Mills v. Cawasji, (1911) 13 Bom LR 162 [LNIND 1910 BOM 134]. 20. The judicial opinion is divided on whether the interest should run from the time when the debt is satisfied, Haji Abdul Rahman v. Haji Noor Mahomed, (1896) 16 Bom 141; Bhaya Lal v. Mohammed Hakim, 57 IC 294; or from the time when the redemption suit was instituted, Janoji v. Janoji, (1883) ILR 7 Bom 185; see also Ismail Hasan v. Mehdi Hasan, AIR 1924 All 881. 21. Beni Prasad v. Narain Das, 5 IC 529; see also Subba Rao v. Sarvamyudu, AIR 1923 Mad 533. 22. Rajagopala v. Kanuppiah, AIR 1946 Mad 464. 23. Narain Prasad v. Radhakant Prasad, AIR 1967 Pat 5. 24. Pukyadi Rajagopala v. Kamppi, AIR 1946 Mad 464. 25. Hukam Singh v. Babu Lal, AIR 1922 All 181; Jagat Tarini v. Naba Gopal, (1907) ILR 34 Cal 305; Velayuda Naicker v. Hyder Hussan, (1910) ILR 33 Mad 100; Raj Mofian v. Sarada Chamn, AIR 1936 Cal 200. 26. Ma Nyo v. Maung Hla Ba, AIR 1925 Rang 13; Rukhminibai v. Venkatesh, (1907) ILR 31 Bom 527; Satyabadi v. Harabati, (1907) ILR 34 Cal 223; Harbans v. Ramdhari, AIR 1960 Pat 51. 27. Shiva v. Jaru, (1892) ILR 15 Mad 290; Contra Raghu v. Ashraf, (l879) ILR 2 All 252; see also Shivadchidambara v. Kamatchi, 3 IC 433, (1909) 33 Mad 71. 28. Genuji Ramji v. Murlidhar Laxman, AIR 1954 Bom 417. 29. Shafi-un-nissa v. Fazalmb, (1910) 7 All LJ 787; see the criticism in Kishun Lal v. Him Lal, 120 IC 768; see also Kanala Prashad v. Bamdeo, 1 5 IC 22; Muhammad Ishaq Khan v. Rup Narain Singh, AIR 1931 All 562. 30. Bachchu Lal v. Chaudri Syed Mohammad, AIR 1933 PC 136; Mahant Ramdhan Puri v. Bankey Bihari Saran, AIR 1958 SC 941 [LNIND 1958 SC 84]; Moulvi Osman Ali v. Faijian Bewa, (1931) 53 Cal LJ 380; Ram Ranbijoy v. Badri Upadhya, AIR 1946 Pat 36. 31. Misri Lal v. Gajadhar, AIR 1943 Oudh 433. 32. Sitla v. Dhum Singh, AIR 1925 Oudh 114; Narasimha Rao v. Seshayya, AIR 1925 Mad 825 [LNIND 1924 MAD 322]; Jaijit Rai v. Gobind Tiwari, (1884) ILR 6 All 303. 33. Bihari Lal v. Shib Lal, AIR 1924 AH 591; Basant Rai v. Kanauji Lal, (1879) ILR 2 All 455. 34. Mahomad Ali v. Ali Mirza, AIR 1934 Oudh 220. 35. Raghubar Narain v. Mohit Narayan, AIR 1929 Pat 37. 36. Fakir Mahammed v. Ali Sherkhan, 10 IC 113; Paru Ammo v. Kelu Kurup, AIR 1941 Mad 549; see also Kelu Kurup v. Paru Ammo, AIR 1940 Mad 686 [LNIND 1939 MAD 430]. 37. Surendra Khitindra, (1919) 29 Cal LJ 434. 38. Nanda Lal v. Abdul, (1916) ILR 43 Cal 1052. 39. Indian Bank v. Punjab National Bank AIR 2010 Mad 84 [LNIND 2009 MAD 2336]; Murtazai Begam v. Dildar Ali, AIR 1930 Oudh 129; see also SKARST Chettyar Firm v. ALAR Chettyar Firm, AIR 1931 Rang 105. 40. Salamat Ali v. Budh Singh, (1879) 1 All 303. 41. Maula Baksh v. Imam Din, AIR 1927 Lah 81; Punjab and Sind Bank v. Amir Chand, AIR 1930 Lah 731. 42. PSSMKT Chethiresan Chettiar v. NSNADHIAPPA Chettiar, AIR 1933 PC 191. 43. Joshi v. Joshi, (1878) ILR 2 Bom 650; Bhurmt Lal v. Gopal Suran, 11 WR 286. 44. Sukiuddin Saha v. Sonaullah,(1918) 22 Cal WN 641. 45. Sri Gopal v. Pirthi Singh, (1902) ILR 24 All 429; Mahomed Ibrahim Hossein Khan v. Ambika Persad Singh, (1912) ILR 39 Cal 527. 46. Padarath v. Ram Nain, AIR 1915 PC 21. 47. Sita Ram v. Raj Narayan, AIR 1934 Oudh 283; Subraya v. Ganpa, (1911) ILR 35 Bom 395. 48. Lloyds Bank Ltd. v. PE Guzdar & Co., AIR 1930 Cal 22; Ghulam Fatuna v. Gopal Devi, AIR 1940 Lah 269. 49. Indian Bank v. Punjab National Bank, AIR 2010 Mad 84 [LNIND 2009 MAD 2336].

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(IN) Poonam Pradhan Saxena : Property Law 50. Rangappa v. Immamudin, AIR 1934 Nag 29. 51. ALRMChettiar v. LPRCHETTIAR, AIR 1926 Rang 195; Monindra v. Troylucko Nath, (1898) 2 Cal WN 750; Balmakundas v. Moti Narayan, (1894) ILR 18 Bom 444; Rangasami v. Annamalai, (1908) ILR 31 Mad 7; Chettiappa v. Periasami,(1910) 20 Mad LJ 979. 52. Somasundara Tambiran v. Sakkarai, (1870) 4 Mad HC 369 (mere possession of title deeds by second mortgagee are insufficient to give him priority). 53. Banarsi Das v. Moti Ram, AIR 1940 Lah 269. 54. Ratan Lal v. Makundi Lal, AIR 1933 All 299. 55. Surendranath Ghosh v. Haridas Biswas, AIR 1933 Cal 398. 56. Kshetra Nath v. Harasukhdas, AIR 1927 Cal 538. 57. Surendra Mohan Roy v. Mohendra Nath, AIR 1932 Cal 589. 58. Dalip Narayan v. Chait Narayan, (1912) 16 Cal LJ 401; Durga Prasad v. Mario Galstaun, AIR 1955 Cal 194 [LNIND 1954 CAL 135]. If no maximum amount is fixed, the mortgage will not have priority as to future advances, see Imperial Bank of India v. U Rai Gyaw, AIR 1923 PC 211; even though not specifically provided it will be sufficient if it can be ascertained by simple calculations, see Brijmohan Singh v. Dukhan Singh, AIR 1931 Pat 33; the second mortgagee could not have had notice of it when the prior mortgage was registered only a day before the second mortgage, Allahabad Bank Ltd. v. Benares Bank Ltd., AIR 1938 All 473; Sesha Ayyar v. Srinivasa, AIR 1921 Mad 459 [LNIND 1921 MAD 64]. 59. KSPSubbiah Naidu v. Ram Sabad, AIR 1936 Rang 266; Ramaswamy Chetty v. Madura Milts Co., (1916) 1 Mad WN 265; Gopala v. Saminathayyan, (1889) ILR 12 Mad 255; Venkayya v. Venkatammayya, AIR 1930 Mad 178 [LNIND 1929 MAD 127]; Neelamegan v. Govindan, (1891) ILR 14 Mad 71;the right of marshalling may be excluded by contract. Deratha Pullaya v. Jaldu Manikyala Rao, AIR 1962 Andh Pra 425 ; Re Mowers Trusts, (1869) LR 8 Eq 110; whether or not prejudice is being caused is purely a question of fact, and is intimately connected with the value of the property against which the first mortgagee is directed to proceed in the first instance, Brahm Prakash v. Manbir Singh, AIR 1963 SC 1607 [LNIND 1963 SC 65]; the prior mortgagee cannot be compelled to proceed against a security which may be insufficient or doubtful or which may involve him in litigation, Krishna Ayyar v. Muthukumaraswamiya, (1906) ILR 29 Mad 217. 60. Kaisar Beg v. Sheo Shankar, AIR 1932 All 85; see also Chettyar v. Chettyar, AIR 1937 Rang 200; Rajeshwar Prasad v. Mohammad, AIR 1924 Pat 459; Kuppuswami Goundar v. Muthuswamy Goundan, AIR 1955 Mad 208 [LNIND 1954 MAD 81]. 61. Umesh Chandra v. Hemangachandra, AIR 1933 Cal 325. 62. Rajkeshwar Prasad Narain Singh v. Mohammad Khalil-ul-Rahman, 78 IC 796; Inderdawan Pershad v. Gobind Lall, (1896) ILR 23 Cal 190; Lakhmidas v. Jamnadas, (1898) ILR 22 Bom 304 (FB); Madan Mohan v. Nand Ram, AIR 1943 All 156. 63. Low v. Hazarimull, AIR 1926 Cal 525. 64. Kathisa-Bi v. Venkateswara Iyer, AIR 1943 Mad 705 [LNIND 1943 MAD 131]. 65. See Meyyappa Chettiar v. Murugappa, AIR 1960 Mad 117 [LNIND 1959 MAD 228]. This rule does not apply to a property liable under s. 81 to the claim of the subsequent mortgagee. See The Transfer of Property Act, 1882, s. 82; see also the Indian Contract Act, s. 43;Hari Raj v. Ahmaduddin Khan, (1897) ILR 19 All 545, 546; Kampta Singh v. Chatmbhuj, AIR 1934 PC 98; Purbi Din v. Hardeo Baksh Singh, AIR 1936 Oudh 169. 66. Kedar Lal v. Harilal, AIR 1952 SC 47 [LNIND 1951 SC 73]. 67. Kuapo Gowda v. Lakke Gowda, AIR 1952 Mad 49 [LNIND 1951 MAD 182]. 68. MKAlfanso v. Ramakant Vinayak Geonkar, AIR 1977 Kant 185 [LNIND 1977 KANT 135]; Rajah of Vizianagram v. Rajah Setrucheria, (1903) ILR 26 Mad 686; see also Rajo Kuer v. Brij Bihari Prasad, AIR 1962 Pat 236; Chagandas v. Gaming, (1896) ILR 20 Bom 615; Jagat Narain v. Qutub Husain, (1879) ILR 2 All 807; Hirachand v. Abdal, (1877) ILR 1 All 455; Sirajuddin v. Sirajuddin, (1905) 2 All LJ 698; Dhakeswar Prasad v. Harihar, (1915) 21 Cal LJ 104; Mutty Lal v. Nandu Lal, (1907) 12 Cal WN 745. 69. Narayan v. Nallamal, AIR 1942 Mad 685 (FB); Gopinath v. Raghubarish Kumar Singh, AIR 1949 Pat 522; Jai Narain v. Rashik Behari, AIR 1931 All 546. 70. Bhagirath v. Naubat, (1892) 2 All 115. 71. Ghulam Hayrat v. Gobardhan Das, (1911) ILR 33 All 397; Murti Prasad v. Sheo Dat, AIR 1931 All 625; see also Bohra Thakur Das v. Collector of Aligarh, (1906) ILR 28 All 593; Bohra Thakur Das v. Collector of Aligarh, (1910) ILR 32 All 612; Krishna Sesha Ayyar v. Krishna, (1901) ILR 24 Mad 96. 72. Narayan v. Nallamal, AIR 1942 Mad 685; see also Chunilal v. Sriniwas, AIR 1944 Mad 276; Baswannewa v. Dadgowda, AIR 1942 Bom 95. 73. Arunagiri v. Radha Krishna, AIR 1942 Mad 44; Roghu Nath v. Harilal Sadhu, (1891) ILR 18 Cal 320; Hara Kumari v. Eastern Mortgage and Agency Co., (1908) 7 Cal LJ 274; Kuppusami Chetti v. Papathi Animal, (1897) 21 Mad 369; Krishna Ayyar v.

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(IN) Poonam Pradhan Saxena : Property Law Muthukumaraswamiya, (1906) ILR 29 Mad 217; Timaji v. Rama, (1918) 20 Bom LR 175 [LNIND 1917 BOM 94]; Wan Taikya v. MSSCHETTYAR, AIR 1935 Lah 26. 74. Shib Lal v. Bhawani Shankar, (1904) ILR 26 All 72; Inukhan v. Naimudin, (1906) 3 Cal LJ 377; Krishna Chandra v. Bhairab Chandra, (1905) ILR 32 Cal 1077; Dina Nath v. Lachmi Narain, (1903) ILR 25 All 446; Ghasi Khan v. Kishori, AIR 1929 All 380; Umesh Chandra v. Hemangachandra, AIR 1933 Cal 325; Mahomed Taki v. Thomas, (1906) 4 Cal LJ 317; Kaliprosonno v. Kamini Soondur, (1879) ILR 4 Cal 475; Mow Raghunath v. Balaji, (1889) ILR 13 Bom 45; Fakiraya v. Gadigayd, (1900) 26 Bom 88; Bisheshur Dial v. Ram Samp, (1900) ILR 22 All 284 (FB); Sarju Kumar v. Thakur Prasad, (1920) ILR 42 All 544; Krishnachandra v. Pabna Model Co., AIR 1932 Cal 319; Chinniah v. AB Mirthuraman, AIR 1934 Mad 250 [LNIND 1932 MAD 182]; Aulad Ali v. Abdul Hamid, AIR 1923 Pat 490; Nyaunglebin Co-operative Bank v. Maungba, AIR 1928 Rang 266; Prabhu Ram v. Kameshwar Prasad, AIR 1940 Pat 420; Lakhmidas v. Jamnadas, (1898) ILR 22 Bom 304; Mutty Lal v. Nandu Lal,(1907) 12 Cal WN 745; Sadigunnissa v. Bhugwandan, AIR 1937 Oudh 284; Gangadas v. Jogendra, (1906) 11 Cal WN 403; Jugdeo v. Habibullah,(1907) 12 Cal WN 107; Maharajah Ramnarain v. Ram Kumar, (1916) 1 Pat LJ 228; Bisheshur Dial v. Ram Samp, (1900) ILR 22 All 284, 293 (FB); Mahomed Abdul v. Baldeo Sahai, AIR 1939 All 86; see also Gian Singh v. Atma Ram, AIR 1933 Lah 374. 75. Raghavacharya v. Kandaswami, AIR 1947 Mad 393. 76. Gaya Prasad v. Salik Prasad, (1881) ILR 3 All 682, 686; Sesha Ayyar v. Krishna, (1901) 24 Mad 96, 113. 77. Ponnambala Pillai v. Annamalai, AIR 1921 Mad 475 (FB); Bisheshur Dial v. Ram Samp, (1900) ILR 22 All 254; Bhagwati Prasad v. Shafaat Muhammad, AIR 1921 All 350. 78. Rama v. Manak, (1905) 7 Bom LR 191; Sheo Prasad v. Behari Lal, (1903) ILR 25 All 79; Sheo Tahal v. Sheodan Rai, (1906) 28 All 174; Ram Chand v. Parbfiu Dayal, AIR 1942 PC 50; Ramanna v. Butchamma, AIR 1958 Andh Pra 598 ; see also Kustea Loan Office v. Annanda Charan, AIR 1923 Cal 681; Hakim Lal v. Ram Lal, (1907) 6 Cal LJ 46; Surjiram v. Barhamdeo, (1905) 1 Cal LJ 337; i (1906) ILR 33 Cal 613; Mukatakeshi v. Ramani, AIR 1927 Cal 195. 79. Huri Kissen v. Veliat Hossein, (1903) ILR 30 Cal 755; Ponnusami Mudaliar v. Srinivasa, (1908) ILR 31 Mad 333; Mir Eusuff Ali v. Panchanan, (1910) 15 Cal WN 800; Pande Satdeo v. Ramayan Tewari, AIR 1923 Pat 242; Jugal Kishore v. Kedar Nath, (1912) ILR 34 All 606; Perumal v. Raman Chettiar, (1917) ILR 40 Mad 908. 80. Meyyappa Chettiar v. Murugappa & Sons, AIR 1960 Mad 117 [LNIND 1959 MAD 228]. 81. Re Dunlop v. Dunlop, (1882) 21 Chd 583; Muhammad Abbas v. Muhammad Hamid, (1912) 9 All LJ 499; Visvanatha v. Vengama, AIR 1924 Mad 749; Re Darbys Estate, Randall v. Darby, (1907) 2 Ch 465. 82. Brij Bhukhan v. Bhagwan Datt, AIR 1942 Oudh 449 (FB); Aziz Ahmad v. Chhote Lal, AIR 1928 All 241; Bhagwandas v. Karam Husain, (1911) 38 All 708; Aley v. Kekkaru, AIR 1964 Ker 256; Gopinath v. Raghubansh Kumar Singh, AIR 1949 Pat 522; Rameshwar v. Ramnath, AIR 1950 Pat 174. Before the enactment of s. 92 of Transfer of Property Act, 1882 there were conflicting decisions as to the rights of a co-mortgagor who redeemed the whole mortgage to a charge over the other shares,Ibn Husain v. Ramdai, (1890) ILR 12 All 110; Baldeo Sahai v. Baij Nath, (1891) ILR 13 All 371; Hari Raj v. Ahmaduddin Khan, (1897) ILR 19 All 545; Shanto Chandar v. Nain Suhh, (1901) ILR 23 All 355. 83. Jag Mohan v. Jugal Kishore, AIR 1932 PC 99; Bhagwan Singh v. Mazhar Ali, (1914) ILR 36 All 272; Nisar Ahmad Khan v. Manjur Ahmad, AIR 1935 Oudh 245; Rajbahadur v. Setal Prasad, AIR 1950 All 596. 84. Faquir Chand v. Aziz Ahmad, AIR 1932 PC 74. 85. Sarju Lal v. Baijnath Prasad, AIR 1923 Pat 44; Ram Saran v. Janki, (1896) ILR 18 All 106; Sabir Hasain v. Firasat Ghaus, AIR 1929 All 696 l; Veerapa v. Chandra Mereleshwara, AIR 1943 Mad 637 [LNIND 1942 MAD 334]; Amir Chand v. Bukshi, (1907) ILR 34 Cal 13. 86. Ponnambala v. Annamalai, AIR 1927 Mad 475 (FB); Mardan Singh v. Thakur Sheo Dayal, (1905) ILR 27 All 549; Meghraj v. Krishna Chandra, AIR 1974 All 265; Shankarlal v. Latafat, (1916) 14 All LJ 713; Gobind v. Kailash, (1917) 25 Cal LJ 354; Mutty Lal v. Nandu Lal (1907) 12 Cal WN 745; Jugdeo v. Habibullah, (1907) 12 Cal WN 107; Shib Lal v. Bhagwani Shankar, (1904) ILR 26 All 72; Bhagwan Singh v. Mazfiarali, (1914) 36 All 272; Jotindra Mohun v. Guru Prosunno, (1904) ILR 31 Cal 597; Fakiraya v. Gadigaya, (1902) ILR 26 Bom 88; Mutty Lal v. Nandu Lal, (1907) 12 Cal WN 745; Indian Overseas Bank Ltd. v. REM Ibrahim, AIR 1975 Mad 92 [LNIND 1974 MAD 145]. 87. Gukari Lal v. Ali Ahsan, AIR 1933 All 929; Sonaji v. Krishna Rao, AIR 1931 Nag 172; Mutlm Ramaswami v. Govind Vedayachi, AIR 1932 Mad 218 [LNIND 1931 MAD 268]; Ramabhadrachar v. Srinivasa, (1901) ILR 24 Mad 85; Charan Singh v. Ganeshi Lal, AIR 1926 All 352; Muhammad Inamullah v. Aisha Bibi, (1926) 24 All LJ 714; Damodanami v. Govindrajalu, AIR 1943 Mad 429 [LNIND 1943 MAD 86](FB); Official Receiver v. Murari Mohan, AIR 1949 Mad 19; Subbiah Chettiar v. Seeranga Chettiar, AIR 1955 Mad 557 [LNIND 1954 MAD 221]; Satya Kripal v. Gopi Kishore, (1901) 6 Cal WN 583; Karim Khaksan v. Nanndm Nath, AIR 1936 All 258; Isri Prasad v. Jagat Prasad, AIR 1937 Pat 628; Satyanarayan Murthi v. Official Receiver, AIR 1949 Mad 884. 88. Rama v. Manak, (1905) 7 Bom LR 191; Re Dunlop, Dunlop v. Dunlop, (1882) 21 Chd 583 CA; see also Muthuswami v. Arasayee, AIR 1936 Mad 901 [LNIND 1936 MAD 13]; Bara Saheb v. Krishna Bayan, AIR 1936 Mad 898 [LNIND 1935 MAD 408]; Kunchithapatham v. Palamala, (1917) 32 Mad LJ 347 ; see also Mothooranath Chattopadhaya v. Kristokumar, (1879) ILR 4 Cal 369, a case decided under s. Section 69 of the Indian Contract Act, 1872.

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(IN) Poonam Pradhan Saxena : Property Law 89. Ganeshi Lal v. Thakur Charan Singh, AIR 1930 PC 183; Charan Singh v. Ganeshi Lal, AIR 1926 All 352; see also Muhammad Abbas v. Muhammad Hamid, (1912) 9 All LJ 499; Isri Prasad v. Jagat Prasad, AIR 1937 Pat 628. 90. A premature deposit is ineffectual and must be made when principal money becomes due, see Ram Sonji v. Krishnaji, (1902) ILR 26 Bom 312; Bayya Sao v. Narasinga, (1912) ILR 35 Mad 209; Horay Krishna v. Sashi Bhushan, AIR 1941 Cal 18; Ghana Biswal v. Ramanath Mohapatra, AIR 1974 Ori 196 [LNIND 1973 ORI 8], 198, 199; the mortgagors suit for redemption is barred if the mortgagee has instituted a suit on his mortgage, see Brij Gopal v. Masuda Began, AIR 1935 Oudh 93; Rajakrishnan Menon v. Sundaram Pillai, (1963) Ker LT 103; Thevaraya Reddy v. Venkatachalam, (1917) ILR 40 Mad 804; Poulose v. State Bank of Travancore AIR 1989 Ker 79, even if the mortgagor had not received notice of the mortgagees suit; see Thiagaraja v. Ramaswamy,(1918) 35 Mad LJ 605 ; see also Madanlal v. Gajendrapal, AIR 1929 PC 243; a prior mortgagee who has foreclosed without making the puisne mortgagee a party may make a deposit, see Paras Ram Singh v. Pandohi, AIR 1922 All 135, but a person under contract to purchase cannot make a deposit; see Mayappa v. Kolandaivelu, AIR 1926 Mad 597 [LNIND 1925 MAD 120]; see however, Jagdto Sahu v. Mahabir Prasad, AIR 1934 Rang 127, wherein it was held that a person not entitled to redeem can also make a deposit; the mortgagor may either pay or tender at the proper time and place the amount due on the mortgage or deposit the amount due on the mortgage or sue for redemption, see Ret Singh v. Bihari, AIR 1921 All 358; Sardar Karan Singh v. Raja Muhammad Siddik, 4 OC 387 B. The court has to be a court of competent jurisdiction, i.e., in which the suit for redemption would have to be instituted, and not any other court Bayya Sao v. Narasinga, (1902) ILR 26 Bom 312; Narayan Swami v. Rama Swami, AIR 1939 Mad 503 [LNIND 1938 MAD 208]; under the Bengal Tenancy Act 8 of 1885 s. 171; a mortgagee who pays money due for arrears of rent to avert a sale acquires a statutory charge and such money is not part of the amount remaining due on the mortgage and need not be deposited, see Manmatha Nath v. Sarat Chandra, (1915) 21 Cal LJ 429. Similarly, compensation under the Malabar Compensation for Tenants Improvements Act 1 of 1900, cannot be brought under the expression ‘amount remaining due on the mortgage, Chami v. Ann Pattar,(1916) 1 Mad WN 160. 91. K Rajendra v. P Somanna, AIR 2010 (NOC) 1117 (Kar). 92. Narayan Sahu v. Krishna Sahu, AIR 1934 Pat 622; see however Vasava v. Kelu, AIR 1926 Mad 1087 [LNIND 1926 MAD 197], wherein it was held that a mortgagor should not deposit the money in the court if there is no dispute; Madhavi Amma v. Kunhi Pathumma, (1900) ILR 23 Mad 510; Anup Kuar v. Kameshwar Nath, AIR 1939 Pat 415; Debendra Mohan v. Sana, (1904) ILR 26 All 291; Ganeshi Lal v. Rohni, AIR 1928 All 311; see however Ram Sumran s. Sahibzffda, (1885) All WN 328; Subba Rao v. Pakkiamma Nadathi, AIR 1924 Mad 453 [LNIND 1923 MAD 226]; Balbhaddar Prasad v. Bitto, AIR 1929 All 754; Thevaraya Reddy v. Venkatachalam, (1917) ILR 40 Mad 804; Nagathal v. Arumiigham, AIR 1923 Mad 354 [LNIND 1922 MAD 165]; Baluswami lyer v. Krishnaswami Iyer, AIR 1924 Mad 559. 93. Ahmadullah v. Abdul Rahim, AIR 1924 All 26; Chandramani v. Hari Pasawat, AIR 1974 Ori 47 [LNIND 1973 ORI 100]; Subba Rao v. Savarayudu, AIR 1923 Mad 533. 94. Thakur Singh v. Rambaran Singh, AIR 1973 SC 45 [LNIND 1972 SC 394]; a condition that the mortgagee be called upon to produce certain documents is invalid Nanu v. Manchu, (1891) ILR 14 Mad 49; Anandrao v. Durgabai, (1898) ILR 22 Bom 761, unless the documents are necessary, see Kara Nayar v. Ramappa, (1894) ILR 17 Mad 267; Goluckmonee v. Nabungo, (1864) WR 14 (FB), a deposit accompanied with a threat of legal proceeding is invalid; Prannth Roy v. Rookea Begum,(1859) 7 MIA 323; Goperam v. Shanker Rao, AIR 1950 MB 72; Wherer a purchaser of the equity of redemption was unaware that interest was due a deposit of only the principal is valid, see Bhabani v. Kadambini, AIR 1929 Cal 304; Narayan Swami v. Rama Swami, AIR 1939 Mad 503 [LNIND 1938 MAD 208]; but see Raghub Prusti v. Bhobui,(1903) 8 Cal WN 216; Kushal Singh v. Ram Kishun Singh, AIR 1937 All 706, It does not include interest from that day till the service of notice on the mortgagee; see Subbai Goundan v. Palani, (1916) 30 Mad LJ 607, but not penal interest, see Ayyakutti v. Periyaswami, (1916) ILR 39 Mad 579; Ram Rao v. Gopal, AIR 1932 Nag 169. 95. Thakur Singh v. Rambaran Singh, (1973) 1 SCR 1016 [LNIND 1972 SC 394]; Megh Raji v. Baya Bai, (1970) 1 SCR 523 [LNIND 1969 SC 202]; Ram Rao v. Gopala, AIR 1932 Nag 169; Debi Prasad v. Kedar Singh, AIR 1921 All 280; Nadarshaw v. Shirinbai, AIR 1924 Bom 264; Subba Rao v. Savarayudu, AIR 1923 Mad 533; Subramania Aiyar v. Narayawswami, (1918) 34 Mad LJ 439; Raja Baikunth v. Benode Behari, (1919) 29 Cal LJ 256; Cherukuri v. Krushi Vidyalaya, AIR 1945 Mad 46. 96. Jagdeo v. Ram Bahadur Singh, AIR 1959 Pat 457; Appa Pai v. Somu, AIR 1925 Mad 1017 [LNIND 1925 MAD 44]; Pandurang v. Mahadaji, (1903) ILR 27 Bom 23; Sheo Saran Chaudhri v. Ram Lagan, AIR 1922 All 355; Gokul Kalwar v. Chander Sekhar, AIR 1926 All 665; Shiva Nath v. Manhor Lal, 16 OC 261. 97. Janaki Amma v. Mathiri, AIR 1952 Tr & Coch 236; Saiyid Ahmad v. Dharmun, AIR 1921 All 71; see also Munshi Singh v. Narain Prasad, AIR 1956 Pat 201; Bala Changiah v. Subbaya, AIR 1939 Mad 200 [LNIND 1938 MAD 365]. 1.

Deopato Kuer v. Kamal Prasad Singh, AIR 1976 Pat 18; Shiva Narayan Sah v. Baidya Nath, AIR 1972 Pat 380; Abohala Sastriar v. Kalumurthu, AIR 1962 Mad 308 [LNIND 1961 MAD 257]; Ahmadullah v. Abdul Rahim, AIR 1924 All 26.

2.

Minakshi v. Janaki, AIR 1942 Mad 592 [LNIND 1942 MAD 109]; Kara Nayar v. Ramappa, (1894) ILR 17 Mad 267; Gupteshwar v. Radha Mohan, AIR 1937 Pat 253; Dal Singh v. Pitam Singh, (1903) ILR 25 All 179; Mothiar Mira v. Ahmatti Ahmed, (1906) ILR 29 Mad 232.

3.

Deo Dat v. Ram Autar, (1886) ILR 8 All 502; Har Dayal v. Pirthisingh, (1901) ILR 32 All 142.

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(IN) Poonam Pradhan Saxena : Property Law 4.

District Co-operative Central Bank v. Suryanarayana Setty, AIR 2000 Andh Pra 371; Pushparani Padhi v. Ramchandra Panda, AIR 1977 Ori 23 [LNIND 1976 ORI 30]; Ma Nyo v. Maung Hla Ba, AIR 1925 Rang 13; Satyabadi v. Harabati, (1907) ILR 34 Cal 223, 228; Rukhminibai v. Venkatesh, (1907) ILR 31 Bom 527; Harbans v. Ramdhari, AIR 1960 Pat 51; Tarachand v. Narayan, AIR 1922 Nag 199; Nagathal v. Arumugam, AIR 1923 Mad 354 [LNIND 1922 MAD 165]; Ayyakutti v. Periyaswami, (1916) ILR 39 Mad 579; see also Phool Kuer v. Rewari Singh, AIR 1930 All 609; Ram Chandra Marwari v. Rani Keshobati, 36 IA 85, (1909) ILR 36 Cal 840; Subba Rao v. Savarayudu, AIR 1923 Mad 533; but see Dal Singh v. Pitam Singh, (1903) ILR 25 All 179; see also Ratna Koer v. Nanhaki, AIR 1924 Pat 41.

5.

A tender need not be only in money, see Naraindas v. Rikhabchand, AIR 1952 Raj 72 [LNIND 1951 RAJ 209]; interest does not cease on the mere giving of a notice unaccompanied by any actual tender of the mortgage amount, see Shriwrayan v. Bhaskar, AIR 1954 Nag 193; Shankerlal v. Baijiykor, AIR 1966 Guj 40 [LNIND 1964 GUJ 52]; or in case of a conditional tender; see Rejilumudu Venkureddi AIR 1954 Mad 830; Sitaram v. Ramrao, AIR 1931 Nag 91, or on filing of a suit for redemption of an usufructuary mortgage; see also Maung Po Tun v. Maung Ekha, AIR 1917 Low Bur 122, A deposit in court by the mortgagor of the principal and an offer to pay the amount in respect of the cost of repairs and interest, but refusal by the mortgagee is a legal tender and interest will cease to run; see Bhaguiat Prasad v. Ganga Din, AIR 1947 All 68; such as appointment of guardian in case of a minor. In case of a minor mortgagee a guardian adlitem is to be appointed and until such appointment interest will not cease to run, see Kannu Mal v. Indar Pal, AIR 1923 All 183; Pandurang v. Mahadaji, (1903) 27 Bom 23; Sheo Saran Chaudhri v. Ram Lagan, AIR 1922 All 355; Appa Pat v. Somu, AIR 1925 Mad 1017 [LNIND 1925 MAD 44]; Gokul Kalwar v. Chandar Sekhar, AIR 1926 All 665; Phool Kuer v. Rewari Singh, AIR 1930 All 609, but a person making the deposit can pay the difference of interest between the date of the deposit and the date of the appointment of the guardian; see Kannu Mal v. Indar Pal, AIR 1923 All 183; a mere application to the court for service of notice giving correct address is not sufficient and notice must be served on the mortgagee Nibaran Chandra v. Parbati, (1921) 35 Cal LJ 202; Jim Ram v. Khem Koer, AIR 1923 All 24; but see Deo Dat v. Ram Autar, (1886) 8 All 502 (mortgagees knowledge of deposit suffices).

6.

Nachiappan v. Muthiah Ambalam, AIR 1966 Mad 77 [LNIND 1964 MAD 179]; Satyabadi v. Harabti, (1907) 34 Cal 223; Jagat Tarini v. Naba Gopal, (1907) 34 Cal 305; Kripa Sindhu v. Annada Sundari, (1908) 35 Cal 34; Lal Batcha Sahib v. Arcot Namianaswami Mudaliar, (1911) 34 Mad 320; Venkatrama Ayyar v. Gopalakrishna Filial, AIR 1929 Mad 230 [LNIND 1928 MAD 229]; Haji Abdul Rahman v. Haji Noor Mahomed, (1892) 16 Bom 141.

7.

A mortgagor is a person having a subsisting interest in the mortgage, see Rajkumar v. Mritunjoy, (1951) 2 Cal 202.

8.

Any interest, however small, in the property gives a right to redeem; see Hiragauri Rati Lal Hajm Sumar Ladha, AIR 2007 Guj 76 [LNIND 2006 GUJ 373]; Gudarmal v. Bansilal, AIR 1971 Raj 175; Shanker Mahadeo v. Bhikaji, AIR 1929 Bom 139; the interest must be a proprietary interest, Ganesh v. Rajaram, AIR 1934 Bom 32; It must be a present interest and not a contingent interest, see Thayammal v. Adhimoolam Senai, AIR 1956 Mad 304 [LNIND 1955 MAD 226].

9.

A charge upon the property or upon the equity of redemption will give a right to redeem, see Rutnam Pittai v. Kamalambal, AIR 1923 Mad 778, see also Tara Singh v. Kehar Singh, AIR 1989 SC 1426.

10. Manju Kaur v. Ramratan Singh, AIR 1981 Pat 153. 11. Even though the alienation is later found to be defective, see Gaviya v. Lingiah, AIR 1957 Mys 65; see also Munni Bibi v. Trilok Nath, AIR 1932 All 332. 12. Arjun Singh v. Mahesha Nand, AIR 1932 All 437; Tulshi Ram v. Gur Dayal Singh, (1911) ILR 33 All 111; Basdeo Rai v. Jaimongal Rai, AIR 1932 All 53; Sri Kanta Prasad v. Jag Sah, AIR 1924 Pat 57. 13. Tarn v. Turner, (1888) 39 Chd 456 (CA); a permanent tenant occupying premises subsequent to the mortgage, but not a prior tenant is entitled to redeem, see Mahabir v. Dip Narain, AIR 1923 All 140; Balram Missir v. Ram Ratan Misir, AIR 1955 All 610 [LNIND 1954 ALL 203]; Raghunandan Prasad v. Ambika, (1907) ILR 29 All 679; Venkatesh v. Bhujaballi, AIR 1933 Bom 97; Shankar v. Hukumchand, (1918) 14 Nag LR 117; Sakharam Jiwaji v. Pandurang, AIR 1953 Bom 315 [LNIND 1952 BOM 86], an ex-proprietary tenant; Muhammad Husain v. Hanuman, (1918) 16 All LJ 796, a verumpatam tenant; see Paya Matathil v. Kovamel, (1869) 19 Mad 151, and tenant for a term of years Ananda Pandurung v. Uttamrao, AIR 1933 Nag 44; Pannalal v. Rajaram, AIR 1926 Nag 496; Tulsi Ram v. Muna Koer, AIR 1937 Oudh 146 can redeem. It is immaterial whether such a lease is valid and binding on the mortgagee, Raja Kamakshya Narain Singh v. Ramzflna, AIR 1945 Pat 106, the lessee, not being a person whose interests are in any way jeopardised by the mortgage, is not entitled to redeem the mortgage, Pawan Kumar v. Jagdeo, AIR 1947 Nag 210, but this case has been explained as being limited to a lease governed by local revenue laws; see Piarelal v. Bhagwati Prasad, (1969) ILR All 35. The patnidar of the whole 13 or part 14 of the property mortgaged can redeem; see Kusumunnissa v. Nilratna, (1882) ILR 8 Cal 79; Jugal Kissore v. Kartic Chunder, (1882) 21 Cal 116. 14. Govinda Pillai Madhav Kurup v. Mathavan Pillai Padmanabha Pillai, AIR 1990 NOC 73 (Ker); Norendar Narain v. Dwarka Lal Mandur, (1878) ILR 3 Cal 397; Ambu Ram v. Bhau Halya, AIR 1957 Bom 6 [LNIND 1956 BOM 120]. 15. Nabi Rasool v. Mohd Maqsood, AIR 1982 All 503. 16. Chaluvegowda v. Chennegowda, AIR 1952 Mys 12; Periandi v. Angappa, (1884) ILR 7 Mad 423; Radha Kishun v. Hem Chandra, (1906). 11 Cal WN 495. 17. Shankar v. Bhikaji, AIR 1929 Bom B9; Jhum Lal v. Sham Narayan, AIR 1933 Pat 33; Konnan Sanku v. K. Panathi Amma, AIR 1963 Ker 249 [LNIND 1962 KER 176]; Nainappa v. Chidambaram, (1898) ILR 21 Mad 18; Protap Chandra v. Peary

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(IN) Poonam Pradhan Saxena : Property Law Mohan,(1917) 22 Cal WN 800; Sri Kanta Prasad v. Jag Sah, AIR 1925 Rang 57; Huthasanan v. Parameswaran, (1899) ILR 22 Mad 209; Baikuntha Nath v. Mohesh Chandra,(1917) 22 Cal WN 128. 18. Shamrao v. Kamal, AIR 1948 Nag 316, (1947) ILR Nag 942; Alagammal v. Sadasiva, AIR 1930 Mad 1017 [LNIND 1930 MAD 129]. 19. Sitaram v. Khandu, AIR 1921 Bom 413. 20. Ram Singh v. Baldeo Prasad, AIR 1952 All 643 [LNIND 1949 ALL 45]. 21. R. Singavelu v. Govindasami Chettiar,(1978) 1 Mad LJ 276. 22. Raj Narain v. Sant Prasad, AIR 1973 SC 291 [LNIND 1972 SC 517]. 23. Ramkrishna v. Venkat Swami, AIR 1945 Mad 175; Kelu v. Chakkara Cheppan, AIR 1937 Mad 451 [LNIND 1936 MAD 421]; Perumal Reddiar v. Suppiah Thevar, AIR 1945 Mad 500; Ganpat v. Bhangi, (1902) 15 CPLR 175. 24. Chhotey Singh v. Surat Singh, AIR 1930 Oudh 294; Basant Singh v. Rampal Singh, (1919) 6 Oudh LJ 248; Ram Chandar v. Kallu, (1908) ILR 30 All 497; Narayana Kutti v. Pechiammal, (1912) 36 Mad 426 ; see also Gumuni Singh v. Chakkar Singh, 8 OC 349; Basawan v. Natha, AIR 1925 Oudh 30.. 25. Girish Chunder v. Juramoni,(1900) 5 Cal WN 83; Kalu Singh v. Hansraj, AIR 1925 Oudh 270; Govind Pillai v. Ahmed Mussa, AIR 1954 TC 251. 26. Ganpat v. Bhangi,(1902) 15 CPLR 175. 27. Soopi v. Mariyoma, (1920) ILR 43 Mad 398; Sankara Pillai v. Ananda Pillai, AIR 1958 Ker 307 [LNIND 1957 KER 165]; Gopala Menon v. Kalyani Amma, AIR 1964 Ker 81 [LNIND 1963 KER 249]; Krishnan v. Ayyappan Pillai, AIR 1974 Ker 218 [LNIND 1974 KER 34]. 28. Mayappa v. Kolandaivelu, AIR 1926 Mad 597 [LNIND 1925 MAD 120]. 29. Narayana Kutti v. Pechiammal,(1912) 36 Mad 426; Chottey Singh v. Swat Singh, AIR 1930 Oudh 294; Bhag Singh v. Santi, AIR 1952 Pepsu 74. 30. Lakshmi Pillai Subhadra Amma v. Eswam Pillai Velayudhan Pillai, AIR 1977 Ker 148 [LNIND 1977 KER 85]; a redeeming comortgagor can merely claim to be re-imbursed for the moneys he has spent but does not become a ‘mortgagee for the purposes of s. 4A of the Kerala Land Reforms Act, 1963; see Krishna Menon Bhaskara Menon v. Madhavan, AIR 1976 Ker 62 [LNIND 1974 KER 153](DB). 31. Nattammal v. Swami Ammal, AIR 1975 Mad 100 [LNIND 1974 MAD 142](DB); a suit for possession of his share or portion of the property by a non-redeeming co-mortgagor (on payment of the proportionate amount of the mortgage debt), may be filed either within the limitation prescribed for a suit for redemption of the original mortgage, or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor, Valliamma Champaka Pillai v. Sivathanu Pillai, (1979) 4 SCC 429 [LNIND 1979 SC 345]. 32. MG Easwara Rao v. Rabiyabi, AIR 2000 Kant 232 [LNIND 2000 KANT 79]. 33. Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440 [LNIND 1966 SC 283]; Hasanbhai v. Umaji, (1903) 28 Bom 153; Mangali Prasad v. Pati Ram, (1904) 1 All LJ 360; Debendra Narain v. Ramtaran, (1903) ILR 30 Cal 599 (FB); Amba Prasad v. Moonga Ram, AIR 1930 All 523; Dhanwanti v. Hargobinda, AIR 1924 Pat 484; Abdul Hamid v. Ram Kumar, AIR 1942 Oudh 260 (FB); Venkatanaryanasami v. Kani Ammal, (1913) Mad WN 903; Ram Subhag v. Nar Singh, (1905) ILR 27 All 472; Banmali v. Bisheshar, (1907) ILR 29 All 129; Ram Adhar v. Shankar Baksh Singh, AIR 1935 Oudh 139. 34. Amulya v. United Industrial Bank Ltd., AIR 1981 Cal 404 [LNIND 1980 CAL 169]; Kara Miah Saheb v. Velayudha Konar, AIR 1974 Mad 248 [LNIND 1973 MAD 81]; AMA Firm by Mg Partner Murugappa Chettiyar v. Manidachalam Chettiar, AIR 1948 Mad 412 [LNIND 1947 MAD 245]; AMKM Chettyar Firm v. AKOML Chettyar Firm, AIR 1930 Rang 255. 35. Ramgopal v. Nanakram, AIR 1936 Nag 32, 161 IC 651; Taibai v. Wasudeorao, AIR 1937 Nag 372 (FB); Lal Mohan v. Govind Sahi, AIR 1940 Pat 620.The two paragraphs do not overlap and are mutually exclusive, Him Singh v. Jai Singh, AIR 1937 All 588. The rule of subrogation applies to Punjab, see Lakshmi Pillai v. Easwara, AIR 1977 Ker 148 [LNIND 1977 KER 85](FB); Sham Lal v. Chajju Ram, AIR 1941 Lah 53; Simla Banking & Industrial Co. v. Firm Luddar Mal, AIR 1959 Punj 490. 36. Paramjota Devi v. Shamsul Zoha, AIR 2009 Pat 6 [LNINDU 2008 PAT 100]. 37. Samtribai v. Nanhelal, AIR 1934 Nag 84; Chunilal v. Lakshmichand, AIR 1940 All 237; see also Raj Bahadur Lal v. Sitla Prasad, AIR 1951 All 596 [LNIND 1950 ALL 359]; Sita Ram v. Sharda Narain, AIR 1950 All 682 [LNIND 1950 ALL 59]. 38. Nadar AV v. Bhagavathi, AIR 1972 Mad 207 [LNIND 1971 MAD 359]; Bakhand v. Ratanchand, AIR 1942 Nag 111; Lala Manmohan v. Janki Prasad, AIR 1945 PC 39; Him Singh v. Jai Singh, AIR 1937 All 588; Gurdeo Singh v. Chandrikah Singh, (1909) ILR 36 Cal 193; Bisseswar Prosad v. Lala Sarnam Singh, (1907) 6 Cal LJ 134; Nagayyar v. Govindayyar, AIR 1923 Mad 349; see also Nugenderchunder Ghose v. Sreemutty Kaminee, (1867) 11 MIA 241; Dakhina Mohan Roy v. Saroda Mohan Roy, 20 IA 160; Gulab Nathuram v. Bindraban Sheocharan, AIR 1941 Nag 24; Seshagiri v. Pichu, (1887) 11 Mad

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(IN) Poonam Pradhan Saxena : Property Law 452; Rajah of Vizjanagam v. Raja Setrucherla, (1902) 26 Mad 686 (FB); Alayakammal v. Subbaraya, (1905) ILR 28 Mad 493; Amman Pariyayi v. Pakran, (1913) ILR 36 Mad 493; Kotayya v. Kotappa, AIR 1926 Mad 141 [LNIND 1925 MAD 36]; Swaminath Iyer v. Ramanath Iyer, AIR 1943 Mad 573; Marwm v. Namyanan, AIR 1965 Ker 55; Ayyappan Roman v. Kunuju Varki Ithappiri, AIR 1958 Ker 386 [LNIND 1998 SC 192]. For a contrary opinion see Shivrao v. Pundlik, (1902) ILR 26 Bom 437; Seth Chitor Mal v. Shib Lal, (1892) ILR 14 All 273 (FB); Munni Bibi v. Triloki Nath, AIR 1932 All 332; Kinu Ram v. Mozflffer, (1887) 14 Cal 809; Bhuneshwari Kuerv Manir Khan, AIR 1928 Pat 641; UShwe Bwe v. Maung Thank, AIR 1928 Rang 278. 39. Anantha Raman v. Arunachallam, AIR 1952 Tr & Coch 105; Ram Tuhul Singh v. Biseswar Lal, (1875) 23 WR 305; Gurdeo Singh v. Chandrikah Singh, (1909) 36 Cal 193; Raj Bahadur Singh v. Nar Singh, AIR 1941 Oudh 226; Shiam Lal v. Ram Piari, (1909) ILR 32 All 25; Koopmia v. Chidambaram, (1896) ILR 19 Mad 105, see also Oberoi Forwarding Agency v. New India Assurance Co., AIR 2000 SC 855 [LNIND 2000 SC 200]. 40. Kundan Lal v. Faqir Baksh, AIR 1938 Oudh 127 (FB); Subraya v. Tunmanna, AIR 1938 Rang 508; Raushan Ali v. Kali Mohan, (1906) 4 Cal LJ 79; Khuda Bakhsh v. Aia Mahomed, (1942) All LJ 135; Pashupati Nath v. Sachi Nath Roy, AIR 1943 Cal 330; Lakshmi Pillai v. Easwara, AIR 1977 Ker 148 [LNIND 1977 KER 85]; Jagan Nath v. Abdulla, (1934) All LJ 248. The comortgagors right to subrogation was admitted even before the Act, see Asansab Ravuthan v. Vamana, (1879) ILR 2 Mad 223; Ganesh v. Raghu, (1880) PJ 300; Pandji v. Sadasheva, (1881) PJ 57; Pancham Singh v. Ali Ahmad, (1881) ILR 4 All 58. 41. See Karuppan v. Sakuth,(1914) 26 Mad LJ 74; A benami acquires no interest in the property, not even a personal right of reimbursement, see Govinda v. Lokanatha, AIR 1921 Mad 51 [LNIND 1920 MAD 134]; Anantha Raman v. Arunachallam, AIR 1952 Tr & Coch 105; Pichaiyappa v. Govindaraju, AIR 1931 Mad 110 [LNIND 1930 MAD 241]; Velayudhan v. Nallathambi, AIR 1928 Mad 541 [LNIND 1927 MAD 430]; Sarjug Devi v. Dulhin Kishori, AIR 1960 Pat 474; see also Gulzari Lal v. Aziz Fatima, (1919) ILR 41 All 372. 42. Kelu v. Chekkara Cheppan, AIR 1937 Mad 451 [LNIND 1936 MAD 421]; Ram Krishna v. Venkat Swami, AIR 1945 Mad 175; Perumal Reddiar v. Suppiah Thevar, AIR 1945 Mad 500; Mahomed Shumsool v. Shewukram, 2 IA 7; Baban v. Biswanath, AIR 1934 Pat 681. 43. Peary Lal v. Dina Nath, AIR 1939 All 190; Jaimat Singh v. State of Punjab, AIR 1984 P&H 351. Thus, a co-mortgagor or a junior member of the tarwad who continued in possession over the excess share got redeemed by him, could not be deemed to be a mortgagee so as to acquire right of a tenant under the Kerala Land Reforms Act, 1963, s. 4A(1)(a), see Variavan Saraswathi v. Eachampi Tfievi, (1993) Supp 2 SCC 201, 207; Valliama Champaka Pillai v. Sivathanu Pillai, AIR 1979 SC 1937 [LNIND 1979 SC 345]; Ganeshi Lal v. Jyoti Pershad, AIR 1953 SC 1 [LNIND 1952 SC 67]; Gyasiram v. Brij Bhushandas, AIR 1973 MP 155 [LNIND 1972 MP 53], 156. 44. Mamata Ghosh v. United Industrial Bank Ltd., AIR (1987) Cal 280 [LNIND 1987 CAL 85], 284; Kadamba Sugar Industries Pvt. Ltd. v. Devru Ganapathi Hegde, AIR 1993 Kant 288 [LNIND 1993 KANT 5], 294; Abdul Gaffar v. Sagun Chowdhari, AIR 1952 Pat 321; Rattan Chand v. Prite Shah, AIR 1962 Punj 402; Dinobundhu Shaw v. Jogmaya Dasi, (1902) ILR 29 Cal 154; see also Girdhar Das v. Ram Autar Singh, (1903) 8 Cal WN 690; Tarn Sundari v. Khedan Lal, (1909) 14 Cal WN 1089; Raja of Kalahasti v. Sree Mahant Prayag, (1916) 30 Mad LJ 391. 45. The words used therein expressly say ‘other than a mortgagor. See also Assar Ali Khan v. Baijnath Prasad, AIR 1983 All 197; Gur Narain v. Shadi Lal, (1912) ILR 34 All 102; Raghunath Sahay v. Lalji Singh, (1896) ILR 23 Cal 397; Bhaju Chowdhury v. Chuni Lal, (1906) 11 Cal WN 284; Sheodhyan Singh v. Samichara Kuer, AIR 1963 SC 1879 [LNIND 1961 SC 233]; Fazal Rab v. Manzoor, AIR 1931 All 76; Audinatha v. Bharathi, AIR 1929 Mad 890 [LNIND 1929 MAD 167]; Badan v. Murari Lal, (1915) ILR 37 All 309; Manjappa v. Krishnayya, (1906) ILR 29 Mad 113; Chelamanna v. Parameswaran, AIR 1971 Ker 3 (FB); Amarchand v. Sardar Singh, AIR 1925 Nag 90; Hakim Ali v. Dalip Singh, (1913) 11 All LJ 478. 46. Janaki Nath v. Pramatha Nath Malta, AIR 1940 PC 38; Janardhan Sadashiv v. Mandanlal Mangalal, AIR 1939 Nag 215; Madhoram Sand v. Kirtyanand, AIR 1944 PC 96; see also Udit Narayan v. Asharfi Lal, (1916) ILR 38 All 502; Venkataramana v. Rangiafi, AIR 1922 Mad 249 [LNIND 1921 MAD 90]; see Gurdeo Singh v. Chandrikah, (1909) ILR 36 Cal 193; Dulhin Sonahuer v. Manail Ahmed, 48 IC 779; Lekhraj Mahton v. Jang Bahadur, AIR 1926 Pat 23; Ma Lon v. Ma Nyo, AIR 1924 Rang 204; Kanhaiya Lal v. Ikram Fatima, AIR 1932 Oudh 268, wherein it was held that there could be no subrogation unless the prior incumbrancer was fully satisfied. 47. Dulhin Kamlapati v. Jageshar, (1938) 18 Pat 342; Sinnaswami Gounden v. Rama Gounden, AIR 1941 Mad 563 [LNIND 1941 MAD 64]. 48. Ram Samp v. Ram Richhpal, AIR 1929 All 621; Abdul Razflk Rowther v. Abdul Rahiman Sahib, AIR 1933 Mad 715 [LNIND 1933 MAD 128]; Rupabai v. Audimulam, (1887) 11 Mad 345; Saminatha v. Krishna, (1915) ILR 38 Mad 548. 49. Bisseswar Prosad v. Lala Sarnam Singh, (1907) 6 Cal LJ 134. 50. Malireddi Ayyareddi v. Gopalakrishnayya, AIR 1924 PC 36; see also Har Shyam v. Shyam Lal, (1916) ILR 43 Cal 69, where the mortgagee was a privy to the fraud on the purchaser. 51. Surjiram v. Barhamdeo, (1905) 2 Cal LJ 202; Abdul Razak Rowther v. Abdul Rahiman Sahib, AIR 1933 Mad 715 [LNIND 1933 MAD 128]. 52. Mukhand v. Radhakisan, AIR 1927 Nag 100; Bansidhar Dhandania v. Kairoo Mandar, AIR 1938 Pat 532;. 53. Lakshmi Achi v. Narayanasami, AIR 1930 Mad 51 [LNIND 1929 MAD 166].

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(IN) Poonam Pradhan Saxena : Property Law 54. Ramamurthy v. Bangaru, AIR 1934 Mad 268 [LNIND 1933 MAD 256]; Narayan v. Pammeshvarappa, AIR 1942 Bom 98. 55. Govinda v. Lokanatha, AIR 1921 Mad 51 [LNIND 1920 MAD 134]; Adari Sanyasi v. Nookalamma, AIR 1931 Mad 592 [LNIND 1930 MAD 195]; Lala Man Mohan Das v. Janki Prasad, AIR 1945 PC 23; see also Re Annapurna Co. Ltd., AIR 1926 All 397; Ponnammal v. Pichai, AIR 1927 Mad 204 [LNIND 1926 MAD 262]. 56. Ram Het v. Pokhai, AIR 1932 Oudh 54. 57. Gukari Lal v. Aziz Fatima, (1919) 41 AH 372. 58. Vitha Mas v. Tukaram, AIR 1941 Bom 153; Jagdeo Suhu v. Mahabir Prasad, AIR 1934 Pat 127, an invalidly registered sale deed was admitted as evidence of a covenant to pay off a mortgage and subrogation was allowed; in Nawab Syed Mohammed Raza v. Bilquisjehan Begum, AIR 1934 Oudh 213, subrogation was refused as there was no agreement in writing and registered; In Abdul Hamid v. Ram Kumar, AIR 1942 Oudh 200, a Full Bench of the Oudh Chief Court held that a subsequent mortgagee who redeems a prior mortgage with money left with him for the purpose by the mortgagor is subrogated to the rights even though there is no registered agreement to that effect. 59. Gurdeo Singh v. Chandrikah Singh, (1909) ILR 36 Cal 193; Dinobundhu Shaw v. Jogmaya Das, (1902) ILR 29 Cal 154; Jagatdhar v. Brown, (1906) ILR 33 Cal 1133, 1155. 60. Ponnammal v. Pichai, AIR 1927 Mad 204 [LNIND 1926 MAD 262]; Hmgya Fala v. Trimbak, (1916) ILR 40 Bom 646. 61. Adari Sanyasi v. Nookalamma, AIR 1931 Mad 592 [LNIND 1930 MAD 195]. 62. Shambatta v. Narayana, AIR 1951 Mad 917 [LNIND 1950 MAD 226]. 63. Seetharama v. Venkatakrishna, (1893) ILR 16 Mad 94; Purnamal v. Venkata, (1897) ILR 20 Mad 486; Gangadham v. Sivarama, (1884) 8 Mad 246; Rupabai v. Audimulan, (1887) 11 Mad 345, 353; Har Narain v. Har Prasad, (1914) 12 All LJ 470; Chhotey Lal v. Dharajit, AIR 1926 All 744. 64. Avudai Ammal v. Ramasami, AIR 1925 Mad 129 [LNIND 1924 MAD 172]; Venkatachari v. Kamppan Chetty, AIR 1934 Mad 256 [LNIND 1933 MAD 186]. 65. Jai Pragash v. Rup Manjari, AIR 1923 Pat 199. 66. Baijnath v. Murlidhar, (1907) 4 All LJ 349; Lala Dilawar v. Dewan Bolakiram, (1885) ILR 11 Cal 258; But see Gur Narain v. Shadi Lal, (1912) ILR 34 All 102; see also Ram Narayan Sah v. Sahdeo Singh, AIR 1922 Pat 181; Narain Prasad v. Narain Singh, AIR 1931 All 40. 67. Abarthoramankutti v. Ittikaprambilas, (1920) Mad WN 143. 68. Lala Sita Ram v. Sharda Narain, AIR 1950 All 682 [LNIND 1950 ALL 59]; Mohesh Lal v. Mohunt Bawan, (1883) ILR 9 Cal 961; Hira Singh v. Jai Singh, AIR 1937 All 588; Vithaldas v. Tukaram, AIR 1941 Bom 153; Dulhin Kamlapati v. Jageshar,(1938) 18 Pat 342; Bishnu Balkrishna v. Sankarappa Wagarali, AIR 1942 Bom 227; Tika Sao v. Hari Lal, AIR 1940 Rang 385 (FB); Taibai v. Wasudeorao, AIR 1937 Nag 372 (FB); Laxmidas v. Lohana Ba, AIR 1970 Guj 73 [LNIND 1968 GUJ 63]; for a contrary opinion, see Totaram v. Ramlal, AIR 1932 All 469. 69. Narayan v. Parameshvarappa, AIR 1936 Mad 171. 70. Ramamurthi v. Bangaru, AIR 1934 Mad 268 [LNIND 1933 MAD 256]; Narayan v. Parmeshvarappa, AIR 1942 Bom 98. 71. Alagirisami Mudali v. Akkrulu Naidu, AIR 1921 Mad 393 [LNIND 1921 MAD 112]. 72. Malireddi Ayyareddi v. Gopala Krishnayya, 53 IC 493; Pichai Konai v. Narasimha, AIR 1930 Mad 471 [LNIND 1929 MAD 274]; Narayan v. Nathmal, AIR 1922 Nag 155; see Buppu v. Ventachalapathi Ayyar, AIR 1934 Mad 227 [LNIND 1933 MAD 43], wherein it was held that if he is in possession, his claim to interest is inadmissible; and Ramchandra v. Panalayammal, AIR 1935 Mad 360 [LNIND 1934 MAD 175], in which it is held that claim to interest is only admissible to the extent the profits fall short of the interest. 73. Muhammad v. Kalyan Das, (1896) ILR 18 All 189; see also Delhi and London Bank v. Bhikari, (1902) ILR 24 All 185. 74. Gopi Narain Khanna v. Bansidhar, (1905) ILR 27 All 325. 75. Bansidhar v. Shiv Singh, AIR 1933 Mad 908; Hahanad Madappya v. Mahabala Rao, AIR 1937 Mad 826 [LNIND 1936 MAD 238]; Sibanand v. Jagmohan, AIR 1922 Pat 499; Kotappa v. Raghavayya, AIR 1927 Mad 631; Balchand v. Ratanchand, AIR 1942 Nag 111; Radha Kishan v. Hazarilal, AIR 1944 Nag 163; Perumal Reddiar v. Suppiah Thevar, AIR 1945 Mad 500; Sheosaran v. Amla Co-operative Credit Society, AIR 1945 Pat 192. 76. Alam Ali v. Beni Charan, AIR 1936 All 33; Dulhin Kamlapati v. Jagesar, (1938) 18 Pat 342; Shib Lal v. Munni Lal, AIR 1922 All 153; Munna Lal v. Chuni Lal, AIR 1945 All 239. 77. Babu Lal Ray v. Bindhyachal Rai, AIR 1943 Pat 305; Parvati Ammal v. Venkatarama Iyer, AIR 1975 Mad 80; Shyamisuddin v. Asadulla, AIR 1945 Cal 194.

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(IN) Poonam Pradhan Saxena : Property Law 78. However, when a prior mortgagee makes payments of arrears of government revenue to protect the property from forfeiture and sale, such payments are in the nature of salvage payment on behalf of all persons interested, and are added to the prior mortgage and have priority over puisne encumbrances, see Monohar Das v. Hazarimull, AIR 1931 PC 226. 79. Except in the case provided for by s. 79 of TPA. 80. Imperial Bank of India v. U.Rai Gyaw, AIR 1923 PC 211. 81. Chhotey Lal v. Dharajit, AIR 1926 All 744; Mittu Lal v. Kishan Lal, (1890) ILR 12 All 546. 82. Muhammad Usan v. Abdulla,(1898) 24 Mad 171; Goverdhana Doss v. Veerasami Chetty,(1900) 26 Mad 537. 83. Chinnu Pillai v. Venkatasami, (1917) ILR 40 Mad 77, 34 IC 507; see also Khub Chand v. Kalian Das, (1870) 1 All 240, 245 (FB). 84. Umes Chunder v. Zahoor Fatima, (1889) 18 Cal 164; Het Ram v. Shadi Lal, AIR 1918 PC 34; Matru v. Durga Kunwar, (1920) ILR 42 All 364; Gobind Lal Roy v. Ramjanam Misser, (1893) 21 Cal 70; Sukhi v. Ghulam Safdar, AIR 1922 PC 11; see also Sukhi v. Ghulam Safdar Khan, AIR 1922 Cal 11. 85. Vedayyasa v. Madura Hindu Sabha, (1919) ILR 42 Mad 90. 86. Yamunabai v. Maroti, AIR 1933 Nag 163. 87. Barhamdeo v. Tiara Chand, (1914) ILR 41 Cal 654; Ramasami Pillai v. Narayanasami, AIR 1925 Mad 483 [LNIND 1924 MAD 508]: (1925) 98 MLJ 100. 88. Gopi Narain Khanna v. Bansidhar, (1905) ILR 27 All 325. 89. Hassanbhai v. Umaji, (1904) ILR 28 Bom 153; Sarvothama v. Raja Rao, AIR 1921 Mad 648. 90. Maganlal v. Shakra, (1898) ILR 22 Bom 945, 948; Kudrat-ullah v. Kubra, (1910) 23 All 25; Goverdhana Das v. Veerasami Chetty,(1904) 26 Mad 537; Mohan Manohar v. Togu Uka, (1886) ILR 10 Bom 224; Gajadhar v. Mul Chand, (1888) ILR 10 All 520; Dina Nath v. Lachmi Narain, (1903) ILR 25 All 446; Pandurang v. Sakhanhand, (1907) ILR 31 Bom 112. 91. Venkata Reddy v. Kunjappa Goundan, AIR 1924 Mad 650; Ram Prasad v. Bhikari Das, (1904) ILR 26 All 464; Badar-ud-din v. Karim Baksh, AIR 1931 Lah 438. 92. Mathra Das v. Amichand, AIR 1933 Lah 75. 93. Reoti Singh v. Ram Lal, AIR 1934 All 73; Nagu Tukaram v. Gopal Ganesh, AIR 1950 Bom 408; Ma-Kin Kyaw v. RC Dey, AIR 1926 Rang 183. 94. Venkata Sourayazulu v. Kannan Dhora, (1882) ILR 5 Mad 184; Perumal v. Kaveri, (1893) ILR 16 Mad 121; Makhan Lal v. Sohan Lal, AIR 1930 All 355; Reoti Singh v. Ram Lal, AIR 1934 All 73; Rangasamy Naiken v. Komarammal, (1903) ILR 26 Mad 484; Mulla Vittie v. Achuthan,(1911) 21 Mad LJ 213. 95. Radha Pershad v. Monohur, (1881) 6 Cal WN; Jugal Kissore v. Kartic Chunder, (1894) ILR 21 Cal 116. 96. Badri Prasad v. Sri Thakurji, AIR 1927 All 638; Chandramma v. Seethan, AIR 1931 Mad 542 [LNIND 1930 MAD 185]. 97. Girish Chundra v. Ishwar,(1898) 4 Cal WN 452; Habibullah v. Jugdeo, (1908) 6 Cal LJ 609; These cases have been dissented on the ground that his only right is that of redemption, see Sheikh Kalu Sharup v. Akhoy Charan, AIR 1921 Cal 157; Bhagaban Chandra v. Tarak Chandra, AIR 1927 Cal 259; Bhadai Shaik v. Lakshminarayan Dutt, AIR 1928 Cal U 6; Jagatchandra De v. Abdul Rashid, AIR 1935 Cal 139. 1.

Maung Shwe v. Karambu, AIR 1928 Rang 127; SKARST Chettyar Firm v. ALAR Chettyar Firm, AIR 1931 Rang 105; Hukum Singh v. Lallanji, (1921) ILR 43 All 204; Jageswar Mandal v. Sridhar Lal, AIR 1928 Pat 589; Kaisar Khan v. Abdul Ghani, AIR 1942 Cal 138.

2.

Bank of Chettinad v. CTACE Firm, AIR 1933 Rang 392.

3.

Mumgappa v. Pallaniappa, AIR 1948 Mad 412 [LNIND 1947 MAD 245].

4.

Nathmal v. Nilkanth, AIR 1933 Bom 25; see also Lakmi Chand v. Janardhan, AIR 1932 Nag 154.

5.

Dadoba Arjunji v. Damodar, (1892) ILR 16 Bom 486.

6.

Niharmala Debee v. Sarojbandhu Battacharjya, AIR 1933 Cal 728, 148 IC 42, 37 Cal WN 897, (1933) 60 Cal 948; Birinchi Singh v. Sarado Prasad, AIR 1924 Pat 452, 75 IC 942, (1924) 3 Pat 114; Gangadas v. Jogendra, (1906) 11 Cal WN 403; Jugdeo Singh v. Habibulla,(1908) 12 Cal WN 107.

7.

Kristopada Roy v. Chaitanya Charon, AIR 1923 Cal 274, 69 IC 530, (1923) 49 Cal 1048; Aghore Nath Banerji v. Deb Narain, (1906) 11 Cal WN 314.

8.

Sanothama v. Raja Rao,(1921) Mad WN 603; Hasanbhai v. Umaji, (1904) ILR 28 Bom 153; Paras Ram Singh v. Pandohi, AIR 1922 All 135.

9.

Parsram Singh v. Pandohi, AIR 1922 All 135; Govindrao v. Rukmanand, AIR 1924 Nag 198; Ram Baran v. Bhagwati Pande, AIR 1925 All 804; see also Amba Prasad v. Wahidullah, AIR 1922 All 405, where the puisne mortgage was of two-thirds of the

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(IN) Poonam Pradhan Saxena : Property Law property in the prior mortgage, the court allowed the puisne mortgagee to redeem two-thirds of the property for a proportionate amount of the mortgage money. 10. Bogi Arijisah v. Kanniappa, AIR 1954 Mad 266 [LNIND 1953 MAD 52]; Venkatagiri v. Sadagopu,(1912) 22 Mad LJ 129; Ramanandhan Chetti v. Alkonda, (1895) ILR 18 Mad 500; Muhammed Usan v. Abdulla, (1901) ILR 24 Mad 171; Aakatty Moidin Katty v. Chiragil, (1903) ILR 26 Mad 486; Kutti Chettiar v. Subramania Chettiar, (1909) ILR 32 Mad 485; Chinnaswamy v. Darmalinga, AIR 1932 Mad 566 [LNIND 1932 MAD 81]; Nagendra Chettiar v. Lakshni Ammal, AIR 1933 Mad 583 [LNIND 1933 MAD 32](FB); Ram Kinkar v. Hariram Haya, AIR 1933 Cal 181; Suramma Nayuralu v. Suraiyya, AIR 1934 Mad 585 [LNIND 1934 MAD 134]; Mahomed Juman Mia v. Akali Mudiani, AIR 1943 Cal 577. 11. Gangadhar v. Lakshman, AIR 1930 Bom 221; Bunwari v. Ramjee,(1902) 7 Cal WN 11; Har Pershad Lal v. Dalmatian Singh, (l905) ILR 32 Cal 891; Afsarjehan Begum v. Mahomed Ahmed, AIR 1937 Dhaka 478. 12. Bhekdhari Mahton v. Radhika Koer, AIR 1934 Pat 648. 13. Chinnu Pillai v. Venkatasamy, (1917) ILR 40 Mad 77, 86; see however Varki Chacko v. Ouseph Pramena, AIR 1957 Ker 48 [LNIND 1956 KER 138], wherein the Court held that although the prior mortgagee not having joined the puisne, his suit was imperfectly constituted, yet he was entitled to use the prior mortgage as a shield and that the puisne mortgagees purchaser is not entitled to dispossess him unless he pays him off. 14. Aghore Nath Banerji v. Deb Narain,(1906) 11 Cal WN 314; Madan Lal v. Shagwan Das, (1899) ILR 21 All 235 (FB); Somi v. Ram Narain, (1923) ILR 45 All 189 : AIR 1923 All 449; Lachmi Narain v. Hirdey Narain, AIR 1926 All 480. 15. Hargu Lal v. Gobind Rai, (1897) ILR 19 All 541 (FB); Kristopada Roy v. Chaitanya Charan, AIR 1973 Cal 274; but see Shagaban Chandra v. Tarak Chandra, AIR 1927 Cal 259, wherein it was held that an assignee of part of the equity of redemption or a puisne mortgagee who has not been made a party cannot dispossess a prior mortgagees auction purchaser. 16. Nainappa v. Chidambaram, (1898) ILR 21 Mad 18; Mahomed Fariduddin v. Nand Ram, AIR 1927 All 626; see also Raushan Ali v. Kali Mohan, (1906) 4 Cal LJ 79; Ramchandra Dikshitar v. Narayanswami, AIR 1928 Mad 950 [LNIND 1928 MAD 60], where an assignee of a leasehold interest created by one of the mortgagors was refused the benefit of this rule. 17. Him Kuer v. Palku, (1918) 3 Pat LJ 490. 18. Abdul Gafur Khan v. Mangat Rai, AIR 1938 Lah 184; Sheosaran v. Amla Co-operative Credit Society, AIR 1945 Pat 192. 19. Dhakeswar Prasad v. Harihar, (1915) 21 Cal LJ 104; see however Nawab Jahan v. Mirza Shujauddin,(1904) 9 Cal WN 865. 20. Imperial Bank of India v. U. Rai Gyaw, AIR 1923 PC 211. 21. Nityanand Ghose v. Rajpur Chaya Bani Cinema Ltd., AIR 1953 Cal 208 [LNIND 1952 CAL 104]; see also Rosy George v. State Bank of India, AIR 1993 Ker 184 [LNIND 1992 KER 208]. 22. Arjees Wool & Fur Industries Pvt. Ltd. v. Allahabad Bank, AIR 1992 All 111 [LNIND 1991 ALL 294].

End of Document

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(IN) Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena : Property Law Poonam Pradhan Saxena

Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 5

CHAPTER 5 Charges CHARGES

Section 100. Charges.— Where immovable 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 which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, 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.

CHARGE, REQUISITES OF THIS SECTION The requisites of this section are: (i) immovable property of one person is made security for the payment of money to another; (ii) by act of parties or by operation of law; (iii)this transaction does not amount to a mortgage; (iv)all the provisions which apply to a simple mortgage shall, so far as may be, apply to such charge; and (v) charges cannot be enforced against any property in hands of a bona fide transferee for consideration without its notice.

(IN) Poonam Pradhan Saxena : Property Law

The purpose of a charge is to secure the payment of money, but there is no transfer of a right in this property in favour of the other to make it a mortgage.1 It is akin to the creation of a personal obligation, such as a right to obtain the payment of money out of a specific property. For example, A is the owner of certain property. He has a son and a daughter. He gives his entire property to the son and puts a condition that the son would be under an obligation to pay Rs 5000 out of the property, every month, to the daughter for her maintenance. This amount of money would constitute a charge in favour of the daughter. If the son sells the property to a third person, the daughter can enforce her right against the third person provided he has notice of this charge. Take another example, a Hindu joint family comprised of three coparceners, A, B and C. The three decide to partition the property and each of them gets one third share in the property. The family had to pay some debts from the property and now each of them will be separately liable to pay the proportionate amount of the debt. If A and B together pay the total debt, they would have a charge over the property in the hands of C, for the proportionate amount of debt that C was under an obligation to pay, from his share of the property. 02”/> Creation of Charge A charge need not be in writing,2 but if it is reduced to writing, registration is necessary in the case of a non-testamentary instrument of the value of Rs 100 or upwards.3 No particular words or form is prescribed to create a charge. However, the intention of the parties, that money is to be paid out of a specific property, must be very clear. For example, the husband earmarks a specific property for the wife so that she can realise her maintenance from that property. It does not amount to the transfer of an interest in the property in favour of the wife, but it is a charge, as the payment is to be made out of that property. An assignment of such a charge would also need to be registered.4 Electricity dues of an erstwhile consumer is not a charge on the property and cannot be recovered from the purchaser of the property.5 A charge cannot ordinarily be split up by apportioning liability amongst various persons.6 Specific Property The security for the charge must be specific immovable property otherwise the charge would be void for uncertainty.7 Property must be sufficiently described. If the property belongs to the joint family and is partitioned, in the schedules to the partition deed,8 a clear and accurate specification of the property is mandatory for creation of a charge. Descriptions like, a charge over ‘all the property of the judgment debtor both movable and immovable’9 or an undertaking in a deed to segregate certain property so that it would be answerable to another person, should the executant of the deed fail to give a charge bond, has the effect of making the property a security for the payment and creating a charge.10 However, a charge created by a Page 2 of 14

(IN) Poonam Pradhan Saxena : Property Law

person on the unknown and uncertain share, which one of his heirs may succeed to, is invalid as a charge.11 Charge by Act of Parties Charge can be created either by the act of parties or by operation of law. Creation of enforceable security is the essence of charge either in respect of immovable property or in respect of movables.12 Where the document shows an intention to make the land security for the payment of the money mentioned therein13 or an intention to create a charge in praesenti an agreement may amount to a charge.14 But, a mere undertaking to discharge an obligation or liability is not enough if the intention to make a specified property or fund liable is absent.15 The following are the illustrations of creation of a charge: (i) A document that gives only a right of payment out of a particular fund or property;16 (ii) An agreement which gives immovable property as security for the satisfaction of a debt;17 (iii)A compromise under which the right is given to the other party for the payment of a maintenance allowance in property without transferring an interest in the property; (iv)An agreement by which an owner of a share in a village receives in lieu of his share a lump sum out of the income;18 (v) An agreement executed by a person forbidden to execute a mortgage taking an advance on the same terms as a mortgage;19 (vi)An undertaking not to sell a particular share in the factory till the loan on promissory note is paid off;20 (vii) A covenant in a lease empowering the lessee to retain part of the rent in satisfaction of a previous loan to the lessor;21 (viii) A provision in a partition deed that a common family debt should be proportionately discharged by the respective sharers and that if any sharer defaults, the share of defaulting sharer constitutes a charge in favour of the sharer who has paid in excess.22 A charge created in favour of a creditor continues to subsist until it is extinguished or abandoned by an express view to that effect.23 Vendor and vendee in collusion, cannot create a charge on property of a third party, without his consent and a decree creating a charge over his property would not only be not binding on him but he will also be entitled to a decree declaring his right over the said property.24 A charge on future property is valid and operates on such property when it comes into existence. 25 In case of distribution of property the consideration of priority of debt secured by a charge has to be taken in account. Therefore, where a mortgage is created on the property of an insolvent, the amount recoverable by the mortgagee will be above the priority contemplated in s. 61 of the Insolvency Act.26 Charge by Operation of Law

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A charge created by a decree of a competent court is created by the operation of law27 and is governed by this rule.28 Arrears of government revenue29 such as municipal taxes,30 are a paramount charge on the land, but electricity dues or31 a co-sharer paying assessment to avert a sale does not get a charge on the other shares.32 A compromise decree creates a charge on an immovable property33 and thus a charge created by a consent decree over certain property of the husband for maintenance of the deserted wife, for her life, is in the nature of a charge contemplated by law and will not lapse by death of the husband.34 The creation of charge by operation of a statute does not create an interest in the property.35 A security bond to the court will not operate as a mortgage36 nor create a charge37 as the court is not a juridical person, but the security bond creates an encumbrance and a purchaser of the property subject to the encumbrance, must indemnify the judgment debtor if the liability is enforced against him.38 If a person purchases his own property in the name of benamidar at a court auction but with the money raised by a mortgage of the property, the mortgagee is entitled to a charge.39 Charge and a Mortgage The primary distinctions between a mortgage and a charge are as follows: (i) In every mortgage there is a charge, but every charge is not a mortgage.40 (ii) A mortgage is primarily a contract between two parties and is created by the act of parties, while charge can be created either by act of parties or even by operation of law. (iii)In a mortgage there is a transfer of an interest in property in favour of the mortgagee, but in case of a charge, there is no transfer of an interest. (iv)On the one hand, a charge does not amount to a mortgage and yet it is subject to the application of provisions applicable to a simple mortgage as if it has been equated to a simple mortgage both in respect of the nature and efficacy of the security. An intended oral mortgage41 or a mortgage42 or a sale deed43 which is invalid for want of attestation44 or intended to operate until the vendee executes an agreement of reconveyance on the vendee’s default45 cannot take effect as a charge. (v) A mortgage is a transaction for the security of repayment of a debt, or for performance of an engagement which may give rise to a pecuniary liability, while in case of a charge, there may or may not be a debt. (vi)A mortgage is for a fixed term and redeemable, while a charge may create a liability in perpetuity not capable of redemption.46 (vii) A charge does not require to be attested and proved in the same way as a mortgage.47 (viii) A charge-holder has no priority if there is no notice on the part of a subsequent simple mortgagee.48

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(ix)A mortgage gives to the mortgagee a right in rem, but the charge does not give such a right in favour of the other party. (x) A charge like a simple mortgage can be enforced within a period of 12 years only, but the rest of the mortgages can be enforced within a period of 30 years. Contingent Charge A charge to secure a liability which is not in existence in prasenti but is contingent and is liable to arise in future is valid. 49 A charge cannot be created on a future contingency50 though it is not necessary that there should be any pre-existing debt and a charge may be created for discharge of an indemnity51 or contingent liability.52 A charge holder in whose favour a charge is created on the property that is to come into existence in future will be entitled to priority over a person who attaches the property after that such charge comes into existence.53 Notice of Charge A charge can be enforced against a transferee of the property who has notice of it, or who is a gratuitous transferee. Charges including an oral non- possessory charge54 are not enforceable against transferees for consideration without notice or a volunteer with or without notice.55 A law which merely makes municipal taxes a first charge on the property but does not expressly provide for the priority of such charges over transferees for consideration without notice will not prevail over a transferee for consideration without notice. Enforcement of a Charge A charge is enforced by sale56 and if it carries with it a personal liability the charge holder is entitled to a personal decree.57 A person who purchases a portion of a property which is subject to charge with notice of the charge is liable to pay the whole amount, but he may sue for contribution.58 A recurring charge is not extinguished by a decree for sale.59 If two properties are burdened with a charge and one of them is relieved of the liability of paying the charge as a result of its transfer by the owner to a person for consideration and without notice of the charge, the charge holder can recover the entire amount from the remaining property.60 A charge declared in a decree must be enforced by a suit.61 The doctrine of subrogation applies to a charge and it is immaterial whether the prior mortgagee had notice of the charge.62 Where a portion of the property charged has been relieved thereof, without the consent of the holder of the charge, the charge-holder can proceed against the whole property for the enforcement of the charge and the principle of ratable distribution is inapplicable.63 Charge of a Trustee Over Trust Properties A trustee is entitled to a charge on the income as well as the corpus of the trust estate for all moneys properly expended in performing the obligations of the trust64 and this charge has priority over the returns of the beneficiaries.65 However, once he ceases to be a trustee, or

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loses possession of the trust property, he can enforce his charge by sale.66 MERGER

Section 101. No merger in case of subsequent encumbrance.— Any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or chargeholder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.

GENERAL PRINCIPLE If a person has one right over the property and he acquires another, the union of these two interests would result in the merger. For instance, A mortgages his property in favour of B for securing the repayment of the loan. The mortgagee has a right to have his money back, and the mortgagor has a right to have his security back in the event of payment of the loan amount. This right is called equity of redemption. If the mortgagee acquires this equity of redemption, this would result in the merger of the two interests that the mortgagee had in the property and would extinguish the mortgage. A security can be extinguished by merger of a lower into a higher security; and of a lesser estate in a greater estate. There can be no merger if the remedies on two securities are not co-extensive67 or if the later security is inoperative,68 or if there is no subsisting prior encumbrance at the relevant time69 or when merger is expressly excluded by words indicating a contrary intention, eg, by a recital that the subsequent security is given by way of further or additional security.70 A promissory note, enforceable by summary procedure, will not merge in a mortgage for the same debt.71 The mere fact that the two capacities are united in the same physical person cannot result in a merger.72 The doctrine of merger does not apply in the case of a lease followed by a mortgage to the lessee.73 When after the mortgage, there is sale of the equity of redemption, or purchase of the property by the mortgagee himself, the mortgage merges with the sale and is extinguished unless contrary intention is proved,74 or when a person recovers judgment on a contract debt, the debt is extinguished as merged in the judgment75 but if it is secured by a mortgage, the collateral security of the mortgage does not merge.76 An equitable mortgage by deposit of title deeds is extinguished when a formal mortgage is executed for the debt.77 A mortgage security is not merged in the judgment and subsists until satisfaction of the decree.78 Therefore, if the mortgage decree for sale is not executed and the mortgagee is in possession, the mortgagor Page 6 of 14

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and the mortgagor’s purchasers cannot dispossess him except by suit for redemption.79 If the mortgagee purchases the property mortgaged and the sale deed fails for want of registration, or because the property was under attachment80 or if the sale is avoided as a fraud on creditors,81 he can still fall back on the mortgage. A mortgagee in possession under an invalid sale may bring the property to sale,82 or may be sued for redemption.83 Rule of Intention A merger must be intended; otherwise the mortgage would be treated as alive and not extinguished. Whether the charge is considered as extinguished or kept alive for the benefit of a person is a question of intention. When an owner of estate pays charges on that estate which he is not personally liable to pay the question whether these charges are to be extinguished, or are kept alive for his benefit, is a question of intention.84 A contract depriving the prior mortgagee of his charge upon the property when he becomes its owner under a sale must be clear one.85 A mere mention in a sale deed of the amount due upon a prior mortgage is not sufficient to imply intention of merger86 or the fact that the mortgagee purchases in the name of his son is not an evidence of an intention to keep the mortgage alive, because of no puisne mortgage.87 But the purchasing mortgagee granting a sub-mortgage88 or the retention of the mortgage deed by the mortgagee after the purchase of the equity of redemption in presence of a puisne mortgage is an indication of an intention to keep the mortgage alive.89 A mortgagee purchasing equity of redemption at a sale in execution of a money decree, does not lose priority over a puisne mortgage, even where by mistake no mention was made of it in the sale proclamation.90 Where a subsequent usufructuary mortgagee pays off a foreclosure decree obtained by a prior mortgage to save the property from foreclosure and later sues the mortgagor to recover the amount so paid and obtains a foreclosure decree, he has no intention of keeping his own mortgage alive.91 In case of successive mortgages where the prior mortgagee obtains a decree on his mortgage but doesn’t bring the property to sale and makes a further advance to the mortgagor and takes a fresh mortgage for the decretal amount plus the further advance and the later mortgagee claims priority over the prior, the first mortgage is not extinguished by merger as there is a subsequent mortgage, and the prior mortgagee is entitled to a priority over the latter, in respect of the decretal amount.92 A mortgage will be extinguished by merger, if there is no interest of any kind to enter into account or consideration so as to impede the full and complete transfer of ownership of the estate as such.93 If the continuance is for the benefit of the purchaser, no question of intention need be considered.94 When the charge for rent is in existence at the date of the mortgagee’s sale, the mortgage is not extinguished by merger.95 But the application of this rule depends on the circumstances present at the time of the mortgagee’s acquisition of full ownership.96 If the mortgagee after filing a suit on his mortgage, purchases the equity of redemption at a sale in execution of a simple money decree, the mortgage is extinguished by merger and the suit will be dismissed.97 A partial failure of consideration does not avoid the sale and the sale extinguishes the mortgage security,98 a mortgage extinguished by merger in a sale cannot be enforced.99 Where the mortgagee sues to realise the mortgage debt and during the pendency of the suit, purchases the equity of redemption in execution of a money decree against the mortgagor, the mortgage is Page 7 of 14

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extinguished by merger and mortgagee’s suit will be dismissed.1 In Sonaulla Karikar v. Abu Syad,2 the mortgagor sold the mortgaged property to a purchaser and later professed to sell the same to the mortgagee who after taking possession was evicted by the purchaser. The purchaser is sued by the mortgagee on the mortgage and his contention that the mortgage was merged was held as not valid as the mortgagor had already parted with his right of redemption and at the time of the purchase, the purchaser’s interest was outstanding. As Between Himself and Subsequent Mortgagee The purchasing mortgagee’s rights merge in those of the mortgagor or remain in suspension until they are needed for purposes of defence against the puisne mortgagee3 or by way of an attack.4 The mortgage is alive as far as the puisne mortgagee is concerned5 and the purchasing mortgagee can claim the amount due under the mortgage from him6 but he has no claim for interest after the date of his purchase7 and cannot enforce his mortgage by suit8 but where purchasing mortgagee is also puisne mortgagee no estate intervenes and there is a merger of both mortgages in the estate of ownership.9 When Securities are of Equal Degree When the securities are of equal degree and one security is accepted for the other, the old security is extinguished.10 But if the new security fails, there is no substitution and therefore, no extinction of the old security.11 Where a new security is taken with a fresh advance both for the old debt and the fresh advance, the first mortgage remains alive for the protection of the first mortgagee against the second mortgagee12 and he does not lose priority over a mesne mortgage even though the renewed mortgage includes other property and varies the rate of interest,13 unless the first mortgage is time-barred.14 The renewal of a mortgage by a person with a limited interest, cannot operate as a discharge of the first mortgage,15 and when a mortgagor gave a third mortgage consolidating two prior mortgages, and the third mortgage is invalid for want of registration, he is allowed to redeem the prior mortgages.16 The creditor can abandon his original security in favour of the new one such as a suit on a second mortgage incorporating the first17 or where he gets a decree on the first mortgage and certifies satisfaction of the decree,18 or admits in a recital in the subsequent mortgage that the first mortgage has been satisfied,19 he cannot fall back on it. But the mere fact that the mortgagee has filed a suit on the first mortgage does not show that he has abandoned it.20 NOTICE AND TENDER

Section 102. Service or tender on or to agent. —

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Where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from such person or otherwise duly authorized to accept such service or tender shall be deemed sufficient. Where no person or agent on whom such notice should be served can be found or is known to the person required to serve the notice, the latter person may apply to any court in which a suit might be brought for redemption of the mortgaged property, and such court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient: Provided that, in the case of a notice required by section 83, in the case of a deposit, the application shall be made to the court in which the deposit has been made.

Where no person or agent to whom such tender should be made can be found or is known to the person desiring to make the tender, the latter person may deposit in any court in which a suit might be brought for redemption of the mortgaged property the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.

Section 103. Notice, etc., to or by person incompetent to contract. — Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of court by, any person incompetent to contact, such notice may be served on or by or tender or deposit made, accepted or taken, by the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interest of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract; and the provisions of [order XXXII in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)] shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder. This notice is notice consequent on the deposit having been made.21

Section 104. Power to make rules.—

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The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter. Rules have been framed under this section by the various high courts. Such rules prevail over the general terms of the Code of Civil Procedure, 1908.22

1.

The broad distinction between a mortgage and a charge is this, that whereas a charge only gives a right to payment out of a particular fund or particular property without transferring that fund or property, a mortgage is in essence a transfer of an interest in specific immovable property, Raja Sri Shiva Prasad v. Beni Madhab, AIR 1922 Pat 529. In a charge there is no transfer of an interest in the property but the creation of a right of payment out of property specified.

2.

Abduljabhar v. Venkata Sastri, AIR 1969 SC 1147 [LNIND 1969 SC 37].

3.

The Registration Act, 1908, s 17(1)(b); see Bengal Banking Corporation v. Mackertich, (1884) ILR 10 Cal 315; Maine v. Bachchi, (1906) ILR 28 All 655; Amratlal v. Keshavlal, AIR 1926 Bom 495; Imperial Bank v. Bengal National Bank, AIR 1931 Cal 223; Rangampudi v. Venkateswarlu, AIR 1934 Mad 713; Vishwanadhan v. Menon, AIR 1939 Mad 202 [LNIND 1938 MAD 401].

4.

Shiva Rao v. Official Liquidator, AIR 1940 Mad 140 [LNIND 1939 MAD 221]; Kishan Lal v. Ganga Ram, (1891) ILR 13 All 28, p 44; Royyiddi v. Kali Nath, (1906) 33 Cal 985; Gur Dayal v. Karam Singh, (1916) ILR 38 All 254; Jawahir Mal v. Indomati, (1914) 36 All 201; Benaras Bank v. Har Prasad, AIR 1936 Lah 482.

5.

Subhendu Banerjee v. CESC, AIR 2002 Cal 242 [LNIND 2002 CAL 107]; a charge is a ‘transfer within the meaning of the Electricity Act, 9 of 1910 s. 9(2); see Uttar Pradesh Government v. Manmohan Das, (1941) ILR All 691 : AIR 1941 All 345.

6.

Har Charan Lal v. Agra Municipal Board Agra, AIR 1952 All 315 [LNIND 1950 ALL 211].

7.

Mohini Debi v. Purna Sashi, (1932) 36 Cal WN, 138 IC 24, AIR 1932 Cal 451.

8.

Manickam Pillai v. Audinarayana, 5 IC 917, (1910) 34 Mad 47.

9.

Narsinhamurthi v. Satyanandan, AIR 1941 Mad 794 [LNIND 1941 MAD 120]; see also Sris Chundra Nandey v. Rakhalananda, AIR 1941 PC 16.

10. Dau Bhairoprasad v. Jugalprasad, AIR 1941 Nag 162. 11. Matlub Hasan v. Kalawati, AIR 1933 All 934. 12. Hindustan Machine Tools Ltd. v. Nedungadi Bank Ltd., AIR 1995 Kant 185 [LNIND 1994 KANT 163]. 13. Janardan v. Anant, (1908) ILR 32 Bom 386; Narain Das v. Murli Dhar, AIR 1929 Oudh 529; Bholanath v. Sarba Mangal, AIR 1940 Cal 93; Ali Mohammed v. Ramnivas, AlR 1967 Raj 258. 14. JK (By) P. Ltd. v. New K-I-Hind Spinning and Weaving Co., AIR 1970 SC 1041 [LNIND 1968 SC 412]. 15. MC Chacko v. State Bank of Travancore, AIR 1970 SC 504 [LNIND 1969 SC 221]. 16. Gobinda Chandra v. Dwarka Nath, (1908) ILR 35 Cal 837. 17. Ramaswami v. Kuppuswami, AIR 1912 Mad 514; Sher Singh v. Daya Ram, AIR 1932 Lah 465; Bank of India v. Rustom, AIR 1955 Bom 419 [LNIND 1954 BOM 121]. 18. Rustamali v. Afiab Khan, AIR 1943 Bom 414. 19. Remal Das v. Jannat, AIR 1921 Lah 136; Sher Singh v. Daya Ram, AIR 1932 Lah 465 (FB). 20. Narain Das v. Murli Dhar, AIR 1929 Oudh 539. 21. Nathan Lal v. Durga Das, AIR 1931 All 62. 22. Sesha Ayyar v. Sreenivasa, AIR 1921 Mad 459 [LNIND 1921 MAD 64]; Abdul Razak Rowther v. Abdul Rahiman Sahib, AIR 1933 Mad 715 [LNIND 1933 MAD 128]. 23. Balakrishnan v. VPMOHANAN, AIR 1998 Ker 257 [LNIND 1998 KER 5]. 24. Azheekkal Sree Varaha Devaswami v. Ummer Sail, AIR 1951 Tr & Coch 17. 25. Fatechand v. Parasram, AIR 1953 Bom 101 [LNIND 1951 BOM 25].

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(IN) Poonam Pradhan Saxena : Property Law 26. Patel Dahyabhai Ramjibhai v Manager Ranuj Nagrik Sahakari Bank, AIR 2010 Guj 54 [LNIND 2010 GUJ 1]. 27. There is a conflict of judicial opinion on this issue, see Bela Dibya v. Ramkishore, AIR 1969 Ori 114 [LNIND 1968 ORI 93]; Rustamali v. Aftab Khan, AIR 1943 Bom 414; Abdul Guffar v. Miaz Ali, AIR 1943 Oudh 354; Venkatacha v. Rajagopala, AIR 1946 Mad 51 [LNIND 1945 MAD 118]; see also Debendmnath v. Trinayani, AIR 1945 Pat 278; Safiul Alam v. Aminul Alam, AIR1969 Pat 162; Ghasiram v. Kundanbai, AIR 1940 Nag 163; Batcha Sahib v. Periyanayagammal, AIR 1952 Mad 165 [LNIND 1951 MAD 53]; Radhe Lal v. Ladli Parshad, AIR 1957 Punj 92; Prem Kuer v. Ram Lagan Rai, AIR 1948 Pat 199; Gangamani Devi v. Kumar Chandra, AIR 1950 Pat 478; Shyam Narain v. Klublal Mehto, AIR 1968 Pat 238; Jata Bahadur v. Krishna Bhamini, AIR 1957 Cal 204 [LNIND 1956 CAL 48]; Dhirendra Nath v. Santa Shila Devi, AIR 1968 Cal 336 [LNIND 1967 CAL 161]; HCMukherji v. Radha Mohan, AIR 1949 All 339; Mahesh Prasad v. Mundar, AIR 1951 All 141 [LNIND 1950 ALL 153], wherein it was held that a charge created by an ordinary decree would not be a charge created by the acts of parties and the provisions of s 100 would not apply. 28. Laxmi Devi v. Mukand Kunwar, AIR 1965 SC 834 [LNIND 1964 SC 366]; Manna Singh v. Wasti Ram, AIR 1960 Punj 296. 29. Mangal Prasad v. Chandra, (1905) 1 Nag LR 117; Singai Murlidhar v. Laia, (1907) 3 Nag LR 40; Akhoy Kumar v. Corpn. of Calcutta, (1915) ILR 42 Cal 625; Corpn. of Calcutta v. Arunchandra Singh, AIR 1934 Cal 862; Sri Rajah Bdlapragada Venkata v. Menda Seetayya, (1920) ILR 43 Mad 786; Ramkati Suryanarayana v. Ramchandrudu, AIR 1932 Mad 716 [LNIND 1932 MAD 109]; and see Harish Chandra v. Qasim Gam, AIR 1961 Pat 291. 30. Chatraput Singh v. Gnndra Chunder, (1881) ILR 6 Cal 389. 31. Haryana State Electricity Board v Hanuman Rice Mills, Dhanauri, AIR 2010 SC 3835 [LNIND 2010 SC 785]. 32. Seth Chitormal v. Shib Lal, (1892) ILR 14 All 273 (FB); Bhuneshwari Kuer v. Manir Khan, AIR 1928 Pat 641; USkate Bwa v. Maung Thank, AIR 1928 Rang 278; but see Seshagiri v. Pichu, (1887) 11 Mad 452; Srinivasa v. Rama, (1893) 17 Mad 247; Rajah of Vizianagram v. Raja Setrucherla, (1902) 26 Mad 686 (FB); Alayakammal v. Subbarayya, (1905) ILR 28 Mad 493; Amman Pariyayi v. Pakran, (1913) ILR 36 Mad 493; Kotayya v. Kotappa, AIR 1926 Mad 141 [LNIND 1925 MAD 36]; Swaminath lyer v. Ramnath Iyer, AIR 1943 Mad 573. 33. Dattatraya Mote v. Anand Datar, (1974) 2 SCC 799 [LNIND 1974 SC 295]; Naganna Naidu v. Janardhana Krishna Rangarao, AIR 1959 AP 622 [LNIND 1959 AP 54]; Bapurao v. Narayan, (1949) Nag 802; Goswami Mahashpuri v. Ramchandra Sitaramji, AIR 1944 Nag 1; Basumati Koer v. Harbansi Koer, AIR 1941 Pat 95; Sheo Narain v. Lakhan, AIR 1945 Pat 434. 34. Rundibala Roy v. Putubala, AIR 1985 Cal 47 [LNIND 1984 CAL 138], 51. 35. R.M.Arunachalam v. Commissioner IT, AIR 1997 SC 2905 [LNIND 1997 SC 911], wherein the Supreme Court held that the creation of a charge under the Estate Duty Act, 1953 s. 74(1), cannot be construed as creation of an interest in property that is the subject matter of the charge. 36. Raghubar Singh v. Jai Indra Bahadur Singh, AIR 1949 PC 55. 37. Syed Mehdi Ali v. Chunni Lal, AIR 1929 All 834. 38. Rama Rayanimgar v. Venkatalingam, AIR 1934 Mad 1 [LNIND 1933 MAD 30]. 39. Sarju Parshad v. Bir Bhaddar, (1893) 15 All 304. 40. Dattatraya Mote v. Anand Datar, (1974) 2 SCC 799 [LNIND 1974 SC 295]. 41. P.R. Somasundram v. Y.P.N.Nachiapa, AIR 1925 Rang 55. 42. Pran Nath v. Jadu Nath, (1905) ILR 32 Cal 729; Tofaluddi v. Jhahar Ali, (1899) ILR 26 Cal 78, 81; Govinda Chandra Pal v. Dwarka Nath Pal, (1908) 35 Cal 837; Samoa Patter v. Abdul Sammad, (1908) ILR 31 Mad 337; Anantarama v. Yussuffi, (1916) 31 Mad LJ 133; Collector of Mirzapur v. Bhagwan Prasad, (1913) 35 All 164; Narayan v. Lakshmandas, (1905) 7 Bom LR 934; Debendra v. Behari, (1911) 16 Cal WN 1075; Sreemutty Rani v. Rajah Sri Nath, (1896) 1 Cal WN 81; Khemchand v. Malloo, (1915) 10 Nag LR 81. 43. Maung Tun Ya v. Maung Aung, AIR 1925 Rang 1; PR Somasundram Chettiar v. YPNNachiappa Chettiar, AIR 1925 Rang 55. 44. See however, Gobinda Chandra v. Dwarka Nath, (1908) ILR 35 Cal 837, wherein it was held that if an instrument is expressly stated to be a mortgage, and gives the power of realisation of the mortgage money by sale of the mortgaged premises, it should be held to be a mortgage and the fact that the necessary formalities of due execution were wanting would not convert the mortgage into a charge. If, on the other hand, the instrument is not on the face of it a mortgage, but simply creates a lien, or directs the realisation of money from a particular property, without reference to sale, it creates a charge. 45. Phattechand v. Uma, AIR 1934 Bom 24. 46. Matlub Hasan v. Kalawati, AIR 1933 All 934. 47. Rama Sami lyengar v. Kuppusami, AIR 1921 Mad 514; Sikandar Ara Amina Begum v. Hasan Ara Begum, AIR 1936 Oudh 196. 48. Dattatraya Mote v. Anand Datar, (1974) 2 SCC 799 [LNIND 1974 SC 295]. 49. A. Ali v. Nath Bank, AIR 1951 Assam 56; RFH Crother v. Pakkianathan, AIR 1953 Tr & Coch 344; Umrao Singh v. Tansukh Raj, AIR 1934 Lah 765.

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(IN) Poonam Pradhan Saxena : Property Law 50. Madho Misser v. Sidh Binaik, (1887) ILR 14 Cal 687; Abdul Samad v. Municipal Committee, 67 IC 939; Raja Ram v. Jagannath, AIR 1926 Oudh 209; Mohini Debi v. Puma Sashi, AIR 1932 Cal 451. 51. Balasubramania v. Sivaguru, (1911) 21 Mad LJ 562; Imbiohi v. Achampat Ayukoya Haji, (1917) 33 Mad LJ 58; Murat Singh v. Pheku Singh, AIR 1928 Pat 587; Harnam Singh v. Mahomed Akbar Khan, (1937) AP 76; Sriniwas v. Jamnadas, AIR 1952 MB 16. 52. Nand Lal v. Dharamdeo, AIR 1925 Pat 288; Murrat v. Pheku, AIR 1928 Pat 587; Imbiohi v. Ahcampat, (1917) 33 Mad LJ 58. 53. Alkash Ali Khalifa v. Nath Bank, AIR 1951 Assam 56. 54. Gur Dayal v. Karam Singh, (1916) ILR 38 All 254; Kishan Lal v. Ganga Ram, (1891) ILR 13 All 28, 44; Royzuddi v. Kali Nath, (1906) ILR 33 Cal 985, 993; Akkoy Kumar v. Corporation of Calcutta, (1915) 42 Cal 625; Hunter, Liquidator of Bank of Upper India v. Nisar Ahmad Chaudhari, AIR 1932 Oudh 336; Shariff Ahmed v. H. Hunter, AIR 1937 Oudh 420; Parshair Lal v. Brij Mohan, AIR 1936 Oudh 52; Jnanendra Nath v. Sashi Mulch, AIR 1940 Cal 60; Matlub Hasan v. Mi Kalawati, AIR 1933 All 934; Raghubir Dayal v. Hussain Mirza, AIR 1948 Oudh 147. 55. Chhaganlal v. Chunital, AIR 1934 Bom 189. 56. Gajraj Jain v State of Bihar, (2004) 7 SCC 151 [LNIND 2004 SC 646]; Lalitha Kariappa v Sanjeevi, AIR 2006 Kant 25 [LNIND 2005 KANT 460]. 57. Ahmedabad Municipality v. Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]. 58. Babu Ram v. Imam Ullah, AIR 1935 All 411; Raghukul Tilak v. Piiam Singh, AIR 1931 All 99. 59. Shariff Ahmed v. H. Hunter, AIR 1937 Oudh 420; Parshair Lal v. Brij Mohan, AIR 1936 Oudh 52; Jnanendra Nath v. Sashi Mulch, AIR 1940 Cal 60. 60. Raghubir Dayal v. Hussain Mirza, AIR 1948 Oudh 147. 61. Aubhoyessury Dabee v. Gouri Sunkur Panday, (1895) 22 Cal 859; Matangini Dassee v. Chooneymoney Dassee, (1895) 22 Cal 903; Venkata Lakshmamma v. Seetayya, (1920) 43 Mad 786; Rajkumar Lal vjai Karan Das, (1920) 5 Pat 1 J 248. 62. Aravamudhu Ayyangar v. Zamindarini Srinath Abiramvalli Ayah, AIR 1934 Mad 353 [LNIND 1933 MAD 260]. 63. Hussein Mirza v. Raghubir Dayal, AIR 1947 Oudh 122. 64. Re Pumfrey, (1882) 22 Chd 261

.

65. Peary Mohun Mukerjee v. Narendra Nath, (1910) ILR 37 Cal 229; Dodds v. Tuke, (1884) 25 Chd 617. 66. Abkan Sahib v. Soran Bibi, (1915) ILR 38 Mad 260; Peary Mohun Mukerjee v. Narendra Nath, (1910) 37 Cal 229. 67. Re Venkata v. Ranga, (1887) 10 Mad 160, 163. 68. Jivandas v. Framji, (1870) 7 Bom HCR 45 OCJ. 69. Bashirunnisan v. Habib Ahmed, AIR 1960 Pat 264. 70. Twopenny v. Young, (1824) 3 B&C 208. 71. Ramgopal v. Richard Blaquiere, (1868) 1 Beng LR 35 OCJ. 72. Mahomed Abdul Samad v. Girdhari Lal, AIR 1942 All 175. 73. Malegowda v. Gaibusab, AIR 1978 Kant 71 [LNIND 1978 KANT 3]. 74. B.T.Kempanna v. T.Krishnappa, AIR 1973 Mys 58. 75. Owen v. Homan, (1851) 8 Mac&G 378. 76. Economic Life Assurance Society v. Osborne, (1902) AC 147; Ramshanker v. Gulab Shanker, AIR 1933 Nag 241; Purnamal v. Venkata (1897) ILR 20 Mad 486; Latchmiput Singh v. Land Mortgage Bank of India, (1887) 14 Cal 464. 77. Annesley, Vaughan v. Vanderstegen, (1854) 2 Eq Rep 1257. 78. Surjiram v. Barhamdeo, (1905) 2 Cal LJ 202. 79. Hirachand Babaji v. Bhaskar, (1864) 2 Bom HC 198 ACJ. 80. Gopal Sahoo v. Gunga, (1882) 8 Cal 530. 81. Appalaraju v. Krishnamurthy, AIR 1932 Mad 182. 82. Rama Charan v. Nimai Nandal, AIR 1922 Cal 114. 83. Ariyaputhira v. Muthukomaraswami, (1914) ILR 37 Mad 423; Raj Kishore Lall v. Sultanjehan, AIR 1953 Pat 58. 84. Malireddi v. Gopala Krishnayya, AIR 1924 PC 36; The rule was laid down in Tharne v. Cann, (1895) AC 11.

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(IN) Poonam Pradhan Saxena : Property Law 85. Madan Mohan v. Nand Ram, AIR 1943 All 156. 86. Radha Kishan v. Fakharuddin, AIR 1934 Lah 143. 87. Gobind Sarup v. Kaldup Singh, AIR 1924 Lah 377; Lala Lakhmichand v. Partab Singh, AIR 1930 Lah 620. 88. Madan Mohan v. Nand Ram, AIR 1943 All 156. 89. Prayag Narain v. Chedi Rai, (1909) 14 Cal WN 1093; Shantappa v. Balapa, (1882) ILR 6 Bom 561; Gauri Shankar v. Bahadur Singh, AIR 1925 Pat 605. 90. Ram Sarup v. Bharat Singh, AIR 1921 All 113; Gurdit Singh v. Hakumat Rai, AIR 1932 Lah 56. 91. Gafoor Khan v. Baldeo, AIR 1943 Oudh 284. 92. The Privy Council has laid down the rule in Gokuldas v. Puranmal, (1884) ILR 10 Cal 1035; Mahalakshmammal v. Sriman Madhawa, (1912) ILR 35 Mad 642; Shankar v. Sadashiv, (1914) 38 Bom 24, 31; NVNNatchiappa Chettyar v. Ko Tha Zan, AIR 1928 Rang 287. 93. Sabjan Mandal v. Haripada Saha, AIR 1921 Cal 599; Bhawani Kumar v. Mathura Prasad, (1913) ILR 40 Cal 89. 94. Ko Po Kun v. CAMLAL Firm, AIR 1932 Rang 197. 95. Sita Chandra v. Parbati Charan, AIR 1922 Cal 32; Bidumukhi Dasi v. Babha Sundari, (1919) 24 Cal WN 961 ; For the applicability of the rule of intention before the passing of Act see Bissen Das v. Sheo Prasad, (1880) 5 Cal LR 29; Gaya Prasad v. Salik Prasad, (1881) ILR 3 All 682; Ramu v. Subbaraya, (1875) 7 Mad HC 229; Lachmin Narain v. Koteshar Nath, (1880) ILR 2 All 826; Har Prasad v. Bhagwan Das, (1882) 4 All 196; Alt Hasan v. Dhirja, (1882) 4 All 518; Shantappa v. Balapa, (1882)ILR 6 Bom 561; Goluk Nath Misser v. Lalla Prem Lal, (1878) ILR 3 Cal 307 (renewal of mortgage). 96. Damodara Sami v. Govindarajalu, AIR 1943 Mad 429 [LNIND 1943 MAD 86](FB). 97. Balamani Ammal v. Rama Aiyar, AIR 1925 Mad 786 [LNIND 1924 MAD 515]; Lachman Prasad v. Lachmeshwar, AIR 1922 All 76. 98. Kedar Nath v. Bhagwat Prasad, AIR 1936 Pat 404. 99. Daso Pillai v. Narayan Patro, AIR 1983 Mad 879. 1.

Balamani Ammal v. Ram Aiyar, AIR 1925 Mad 786 [LNIND 1924 MAD 515].

2.

AIR 1930 Cal 530.

3.

Ram Sarup v. Ram Lal, AIR 1922 All 394; Hari Ram v. Minakshi Rani, AIR 1939 All 660; Nazani Din v. Ram Sukh, AIR 1938 Lah 286; Sengamuthu v. Thayarammal, AIR 1940 Mad 646 [LNIND 1939 MAD 80].

4.

Bohra Bhup Singh v. Sakha Ram, AIR 1945 All 158.

5.

Ranma Aiyar v. Bagavathimuthu, AIR 1936 Mad 473 [LNIND 1935 MAD 406].

6.

Ghulam Khoja v. Pandharinath, AIR 1948 Bom 579.

7.

Syed Ibrahim v. Arumugathayee, 16 IC 877, (1915) ILR 38 Mad 18.

8.

Arumugasundara v. Narasimha, (1915) 29 Mad LJ 583.

9.

Laxman Ganesh v. Mathurabai, (1914) ILR 38 Bom 369.

10. Badri Prasad v. Daulat, (1880) 3 All 706. 11. Har Chundi Lal v. Sheoraj Singh, AIR 1916 PC 68. 12. Punjab and Sind Bank v. Kishan Singh, AIR 1935 Lah 350; Gopal Chunder v. Herembo, (1889) ILR 16 Cal 523; see also Kanhaiya Lal v. Gulab Singh, AIR 1933 Oudh 9; Seetharama v. Venkatakrishna, (1893) ILR 16 Mad 94; Alangaran Chetti v. Lakshmanan Chetti, (1897) ILR 20 Mad 274. 13. Gopal Chunder v. Herembo, (1889) 16 Cal 523; Inderdawan v. Gobind, (1896) 23 Cal 790; Goluknath Misser v. Lalla Prem Lal, (1878) ILR 3 Cal 307; Baij Nath Goenka v. Daleep, 58 IC 489. 14. Radhakishan v. Hazarilal, AIR 1944 Nag 163 (FB); Kanhaiya Lal v. Gulab Singh, AIR 1933 Oudh 9. 15. Skinner v. Nauni Lal Singh, (1913) ILR 35 All 211. 16. Arunugam v. Periasami, (1898) 19 Mad 160. 17. Nakta Ram v. Mali Ram, (1906) All WN 191; see also Velayudu Reddi v. Narasimha, (1917) 32 Mad LJ 263; Mahalakshmammal v. Sriman Madhawa, (1912) ILR 35 Mad 642 for a contrary conclusion Shankar v. Mejo Mal, (1901) ILR 23 All 313. 18. Ram Krishna v. Chotmal, (1899) ILR 13 Bom 348. 19. Chhagan Lal v. Muhammad Husain, (1919) ILR 41 All 456.

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(IN) Poonam Pradhan Saxena : Property Law 20. Purnamal v. Venkata, (1897) ILR 20 Mad 486. 21. Ganeshi Lal v. Rohni Rukumdhuj, AIR 1928 All 311. 22. Vrajlal v. Venkataswami, AIR 1928 Bom 123.

End of Document

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 6

CHAPTER 6 Of Leases of Immovable Property LEASE

Section.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.

GENERAL PRINCIPLE A lease contemplates: (i) a demise or a transfer of a right to enjoy property; (ii) for a term or in perpetuity; (iii)in consideration of a price paid or promised, or of money,a share of crops or services or other things of value to be rendered periodically or on specified occasions to the transferor.1 The essential characteristic of a lease are: (i) transfer of an interest; (ii) parties to the lease;

(IN) Poonam Pradhan Saxena : Property Law

(iii)subject matter of lease; (iv)types of leases; (v) duration of lease; and (vi)consideration for lease. Transfer of an Interest A lease is a transaction with respect to immovable property and creates a right to enjoy such property for a certain term and for consideration on the conditions mentioned in it.2 The right to possess and enjoy the property is transferred in favour of the lessee and he acquires this interest through the conveyance of lease. This interest that the lessee acquires is a transferable interest and can further be transferred by him in favour of a sub-lessee or a sub-tenant. It is not a bare permission that can be withdrawn by the lessor at his pleasure. The relationship of the lessee is created with the property and not merely with that of the owner. After the creation of the interest to possess and enjoy the property, a tenant or a sub-tenant is entitled to remain in possession thereof until the lease is duly terminated and eviction takes place in accordance with law.3 The relationship of landlord and tenant can come into existence only by a transfer of an interest4 in immovable property pursuant to a contract5 and creates a right in rem .6 Where there is no transfer of an interest, there is no lease.7 For instance, A gives his house on rent to B by executing a lease in his favour for 10 years. B is entitled to live here and if he complies with the terms and conditions, and does not commit a breach of any condition, A cannot terminate the agreement at his will or throw B out at his pleasure. If an option is given to the lessor by the lessee himself to resume the leasehold, it is a personal covenant and does not create an interest in the land.8 Lease Both Heritable and Transferable The essential feature of a lease is that it is both heritable and transferable. A monthly tenancy is a heritable asset9 but a lease for life of the grantee terminates on his death.10 Though leasehold interest may be bequeathed by a testementary disposition, the landlord is not bound by it and a stranger cannot be thrust as a tenant on an unwilling landlord.11 Types of Leases Absolute and Derivative Lease Leases can be of two types, absolute lease and derivative lease; or primary lease or sublease/under-lease. An absolute lease is granted by a person who has an absolute right over the property. It can be granted for any number of years or for any time. However, a derivative lease or sub-lease is granted by a person who himself has a limited interest in the property. This kind of lease can never extend beyond the time period for which the primary lease was executed in favour of the lessee. For instance, A is the owner of a Page 2 of 79

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house and grants a lease of it to B for a period of 10 years. This will be an instance of absolute lease. Here, B who is inducted into the premises as a tenant grants a sub-lease of the same premises in favour of C. This sub-lease would also be called a derivative lease or under lease. It can never extend beyond ten years as this is precisely the entitlement of B in the property. A tenant, who himself has no right to occupy the premises after the determination of tenancy, such as a statutory tenant has no right to create a sub-tenancy. He cannot grant a valid sub-lease in favour of another.12 Classification of Leases from the Point of View of its Duration Leases can be classified in three categories from the point of view of their duration: (i) Lease for a fixed term; (ii) Periodic leases; and (iii)Lease in perpetuity. Lease for a Fixed Term Where the duration of the tenancy is a specific time period, such as five years or ten years, it is a lease for a fixed term. Periodic Leases A lease whose duration or the term is continuous from period to period is called a periodic lease.13 The period may be a year, a quarter, a month, or even a week, and the mode in which the rent is reserved may afford a presumption as to the period of the lease. A lease from year to year is a periodical lease. A tenancy at will implied from holding over, or from entry under a void lease, becomes on payment of rent a tenancy from year to year or from month to month or from week to week.14 A lease for an indefinite period is generally construed as a lease for life, but if the rent is payable yearly it would be taken to be a lease from year to year.15 Similarly, it has been held that a lease for a year with a stipulation that it should remain in force until another lease is granted is a lease from year to year.16 Leases in Perpetuity A lease without a term is a permanent lease.17 In the Indian scenario, leases in perpetuity are granted with respect to agricultural property. A fixed rent indicates permanency but permanency does not necessarily imply both fixity of rent and fixity of occupation.18 A slight increase in rent will not, by itself, destroy the permanent character of the tenancy.19 A contract of lease providing that the tenant is to continue in possession as long as he paid rent, indicates a tenancy for the lifetime of the tenant and not a permanent tenancy.20

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If the origin of tenancy is not known, long possession coupled with a uniform rent raises a presumption of permanency. If the origin is known, the only presumption from long possession is a yearly tenancy unless a custom to the contrary is proved. A lease does not cease to be a lease in perpetuity only because there is a forfeiture clause, for such a provision can ensure compliance with the terms of the contract and is a security for the payment of rent. A permanent tenancy may also be acquired by estoppel.21 The burden of proving permanency of tenancy is on the tenant.22 He is to prove the existence, the nature and the extent of the interest which the owner has granted to him. Whether the facts and circumstances of the case justify the inference of permanence is a mixed question of fact and of law.23 For instance, where the land is given on lease at the same time as a building thereon is sold for residential purposes to the lessee; no period is fixed for the lease; the land is held at a uniform rent for 69 years; several transfers have taken place and the lessor never claimed that the lease was terminable; the cumulative effect of all conditions, none of which in isolation is decisive or sufficient to establish, that the lease is a permanent one.24 The only pre-condition for establishing a landlord and tenant relation in a permanent lease is that a landlord should have reserved for himself, a right to evict the tenant.25 Parties to a Lease The parties to the lease are the transferor, who is called the lessor or landlord,26 and the transferee, who is called the lessee or tenant. Since both the parties execute a lease, the lessor and the lessee must be competent to contract.27 The lessor and the lessee cannot be the same person, but a contract between a person with himself and others is valid.28 A lessor can be an absolute owner of the land or joint tenant29 or a lessee himself30 but he must have attained majority and be competent to contract. A transfer by way of lease must be made by a person who owns the interest which is to be transferred.31 A lease may be granted to any person who is competent to contract at the date of execution. Thus minors,32 or unregistered associations33 cannot be lessees. If two or more persons hold a demise under one lease, then, in the absence of a clear provision to the contrary, the entire body of tenants constitutes a single tenant qua the landlord.34 A person would qualify to be a landlord within the meaning of this Act, if he is entitled to evict the tenant. Such entitlement can arise directly due to an agreement entered into, by providing the conditions or terms of tenancy violating which the tenant may be evicted. Thus, a permanent lease that provides these terms would result in a landlord-tenant relationship. Since it is implied in this agreement that non-fulfillment of the prescribed terms would give the right to the landlord to evict the tenant. One such term can be non-payment of rent.35 Lease by Operation of Law The provisions of the TP Act do not apply to any transfer of land by or on behalf of the government. Where corporation public land is leased out to a school for being used as a Page 4 of 79

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playground, the provisions of this Act would not apply.36 When parties to the lease are substituted by a legislative provision, there is no assignment or transfer of the lease or subletting of the premises, by the lessee to the person or authority in whom the leasehold rights are vested by operation of law.37 Similarly, where the leasehold vests in the government, it follows that a suit for possession at the instance of the (original) lessor (or his successor in interest by private alienation) is not maintainable.38 Subject Matter of Lease The subject matter of lease is specific immovable property such as land, houses, factories, shops, minerals and buildings including the external walls enclosing39 or not enclosing40 the part so demised; or even of benefits arising out of land such as fisheries,41 ferries42 and market dues,43 sandmine or mineral land.44 Similarly, composite lease of building would include land and other things appertaining to it including fixtures provided by the lessor,45 or in case of a cinema with equipments.46 A transfer of a right to tap toddy palms47 or a right to fell trees for a term of years so that the transferee derives benefit from further growth,48 is a valid lease. However, a contract for grazing grass,49 a transfer of a right to pluck trees for fruits,50 a royalty,51 sale of trees with the object of being cut and removed within a reasonable time,52 an assignment of a right to collect offerings for a period of specified years,53 a mere permission to an advertising agency by a municipal corporation under an agreement for installation and displaying of ornamental ‘grill work poles’ to provide for outdoor displays of advertisements,54 is not a lease. A lease of a house and a shop is a lease not only of the superstructure but also of its site,55 unless the same is specifically excluded from the definition of land in the lease deed.56 However, terrace and air space above a tenanted multi-storeyed building,57 or costly cinema equipment like the projector, the generator and the screenin a lease of only a cinema building, are not included in the lease.58 Where tools, equipment and a special type of furniture suitable for running a barber’s shop are leased for an amount fixed for running the business, it is a lease of business and not of the shop.59 The right of tenancy subsists even if the leased property is destroyed by fire, tempest, flood or violence of an army or of a mob or other irresistible force, unless an option to the contrary is exercised by the lessee.60 If the contract specifically provides that the lease is only for the house and not the land, the lease would be terminated if the house were destroyed.61 Tenancy at Sufferance A tenancy at sufferance is non-consensual in character, and arises only by the implication of law when a person in possession under a lawful title continues in possession after that title has determined, without the consent of the person entitled.62 For instance, A grants a lease of his house to B. The lease is for a fixed period of five years. The tenant does not vacate after the expiry of five years. He would now be Page 5 of 79

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described as a tenant holding over. If this tenant creates a sub-tenancy, such lessee of a tenant holding over after the expiration of his term is a tenant at sufferance.63 But if he is inducted against the landlord’s consent he is a trespasser,64 and liable for mesne profits.65 A tenancy at sufferance does not create the relationship of landlord and tenant66 and such a tenant is not entitled to a notice to quit.67 Tenancy at Will A tenancy at will arises by implication of law in case of occupation68 by an express agreement to let for an indefinite term for a compensation accruing from day to day so long as both parties please.69 It is terminable by either party and a demand by the landlord for possession is sufficient70 but where the landlord seeks a decree of ejectment, a notice to quit is necessary.71 A tenancy terminable at any time on 15 days’ notice is a tenancy at will,72 a person taking possession under a sale that fails to take effect, becomes a tenant at will and liable for use and occupation from the time when the contract is at an end.73 Where a tenant agrees to live as long as the landlord allows him to do so74 or vacate the premises when he desire him to do so,75 it is a tenancy at will and no registration is required.76 A tenancy at will terminable at the will of either party is a ‘contract to the contrary’ within the meaning of s s. 106 and 116 of TPA.77 Agreement to Lease and Actual Demise An agreement to lease does not require writing or registration,78 but when it ascertains the terms of the lease, and gives the lessee a right of exclusive possession either immediately or at a future date, the document effects as an actual demise and whether it operates as a lease or as an agreement to lease is a matter of construction and intention.79 If all the terms essential to a lease are not fixed, the agreement is not a lease.80 Commencement of Lease The tenancy must start on a particular date and consequently its month is the month from the date according to the calendar followed.81 The commencement should be certain but it is sufficient if it can be made certain.82 If the day of commencement is not stated, the lease begins from the day of execution,83 and it is enough if it is capable of being made certain on a future date.84 A lease may commence either in the present or the future, e.g., on the determination of a prior lease for years85 or after the failure of a life or lives in being.86 However, an executory agreement of lease is void for uncertainty if the commencement of the term is not mentioned or if there are no materials for ascertaining it,87 unless possession is taken under the agreement, and then the term will commence from the date of such possession.88 Duration of Lease The lease need not be for a fixed period but its duration should be definite.1 An uncertainty as to the duration of the term will be fatal to a lease.2 A lease for ‘till suitable Page 6 of 79

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land is provided for and six months notice is given’ is not valid for uncertainty.3 When the lease is for a specific period, its period cannot be infinite by mere provisions of renewal every three years.4 A lease to last during the pendency of a mortgage is not for an indefinite period, but is dependent upon a contingency5 and is valid. Similarly, a lease for as long as an institution is in existence, is valid.6 A lease from month to month is a lease for uncertain duration.7 A lease for life8 or for as long as the lessee may wish to hold the land, is determinable at the death of the lessee.9 A lease for a fixed period providing for termination before the end of the term or on the happening of a certain contingency is valid.10 Similarly a permanent lease does not cease to be so merely because it is made determinable only in a special case provided therein.11 A lease for so long as the lessee pleases to hold the land is determinable at the death of the lessee and may be transferable, but is not necessarily heritable.12 A lease, for which no term is fixed, with an agreement not to raise the rent so long as the tenant pays it regularly, has been held to operate as an agreement to lease for the life of the tenant.13 Concurrent Leases Two lease agreements cannot be executed simultaneously between the same parties with respect to the same property.14 If the parties execute two lease agreements for the same premises between the same landlord and tenant, with neither of them cancelling the first lease agreement nor making a reference of the first in the second lease agreement, then from the date the second lease agreement is effected, the first would automatically come to an end.15 Consideration There must be a consideration fixed for lease that may be in the form of: (i) money; or (ii) money’s worth such as a share in crops; or (iii)service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee. Consideration may be termed as rent plus premium as well as rent alone or premium16 alone. A lease without consideration is invalid. Any payment by the lessee that is part of the consideration of the lease is rent or premium. Rent is generally understood as a periodical payment in money or in money’s worth. In accordance with the terms of the agreement it can be paid periodically or even in advance. Rent to be Specified Rent can be fixed17 or may fluctuate18 if the terms of the deed provide for its variation. Page 7 of 79

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Rent may be required to be paid in kind of a certain money value.19 It is not necessary that the actual figure be determined if there is no uncertainty as to the way in which it is fixed.20 Rent subject to ‘such fair and equitable enhancement as the lessor shall determine’21 or a rent to be fixed having regard to the ‘market value of the premises at the relevant time’22 is valid but an agreement to pay whatever rent the lessor may impose is void. A premium differs from advance rent. It may be an outstanding debt and can be paid in installments.23 A lease for a premium includes a zuripeshgi lease.24 The following have been held as constituting a valid consideration for a lease: (i) the share of crop or the rendering of services; (ii) rent partly in money and partly in kind; (iii)a stipulation to pay government assessment or taxes payable by the lessor.25 However, the following are not valid considerations for establishing a lease: (i) in the absence of any lease deed or rent note, mere payment of house tax;26 (ii) a personal agreement by a tenant to pay a certain sum or a certain quantity in kind to the landlord;27 (iii)services rendered in lieu of the right of occupation;28 (iv)consideration in the form of generation of employment and industrial production for the welfare of the subject.29 Mere non-payment of rent can neither disprove the relationship of landlord and tenant nor is equivalent to absence of consideration in point of law.30 A demand of rent from a person in possession operates only as an offer of a tenancy, and the relationship of landlord and tenant is not established until the rent is paid and accepted.31 The payment and acceptance of an increased or diminished rent does not of itself import a new demise.32 However, an agreement which varies the amount of rent or other essential terms of a lease amounts to a fresh lease and must be registered as such. A lease providing for enhanced rent in case of alienation is valid.33 LICENCE A licence is a right to do or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right is unlawful,34 and such right does not amount to an easement or an interest in the property. Thus, the primary distinction between a lease and a licence is that the lease is a transfer of a right in a specific immovable property, licence is a bare permission. A licencee is not entitled to notice to quit before eviction.35 Distinction between a Lease and a Licence Page 8 of 79

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The primary differences between a lease and a licence are as follows: (i) A lease is a transfer of an interest in a specific immovable property, while license is a bare permission, without any transfer of an interest. (ii) A lease creates an interest in favour of the lessee with respect of the property, a licence does not create such an interest; (iii)A lease is both transferable and heritable, a sub-tenancy can be created by the tenant and on the death of the tenant, the tenancy can be inherited by his legal heirs, while a licence is neither transferable nor heritable. (iv)A licence comes to an end with the death of either the grantor or the grantee, since it is a personal contract, but a lease does not come to an end either by the death of the grantor or the grantee. (v) A licence can be withdrawn at any time at the pleasure of the grantor, but a lease can come to an end only in accordance with the terms and conditions stipulated in the contract of tenancy agreement. (vi)A lease is unaffected by the transfer of the property by sale in favour of a third party. It continues and the purchaser has to wait till the time period for which the tenancy was created is over before he can get the possession, but in case of a licence, if the property is sold to a third party, it comes to an end immediately. (vii) A lessee has a right to protect the possession in his own right. If trespassers encroach upon his property and threaten his possession, a lessee can go to the court and file a suit in his name. A licencee cannot defend his possession in his own name as he does not have any proprietary rights in the property. It is the owner of the property who would protect the possession. (viii) A lessee in possession of the property is entitled to any improvements or accessions made to the property, while a licencee is not. Lease and Licence A finding on the question whether the person in possession is a tenant or a licencee is a finding of fact.36 To ascertain if a document creates a lease or a licence, the substance of the document must be preferred to its form.37 Where it creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which legal possession and control continues with the owner, it is a licence.38 A licence does not create any estate or interest in the property to which it relates.39 Thus, whetheran instrument operates as a lease or as a licence is a matter not of words, but of substance.40 The decisive consideration is the intention of the parties, but the intention must be gathered on a true construction of the agreement and not merely from the description given by the parties.41 Where, on point of intention the document is ambiguous, the question is to be decided in the context of the surrounding antecedent and consequent circumstances and parole evidence.42 A document which expresses the intention of both parties or of one party to create a licence, will nevertheless create Page 9 of 79

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tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of tenancy.43 The mere use of words appropriate to a lease will not preclude its being held to be a licence; so even a document referring to ‘rent’ may be a licence.44 Transfer of exclusive possession generally indicates an intention to create a lease even though the sum is described as a ‘licence fee’,45 but it is no longer a conclusive test46 and there may be cases where a transferee in exclusive possession is a licencee.47 Where, after the expiry of the original period of lease, the lessee continues in possession and the lessor accepts from him premium for the subsequent period, it is a lease and the lessee could not be ejected without the termination of the freshly created lease.48 Important Cases distinguishing Lease and Licence In Sohanlal Naraindas v. Laxmidas Raghunath ,49 the Supreme Court observed: Intention of the parties to an instrument must be gathered from the terms of the agreement examined in light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operating as licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property. If it does, it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or licence the test of exclusive possession though not decisive is of significance.

In Associated Hotels of India v. R.N. Kapoor ,50 the issue was whether occupancy of rooms in a hotel for running a barber shop created a lease or a licence. The case related to Imperial hotel, where A conducted the business of a hair dresser. He applied for fixation of standard rent and the question before the court was whether this occupancy was under a lease or a licence. If it was a lease, the application for fixation of standard rent under the provisions of the relevant rent Act, could be entertained, but if it was a licence, there would be no question of fixation of standard rent. The possession was secured with the help of a deed that was described as a ‘licence deed’. It empowered the licencee to use the premises and carry their business for one year on payment of money through quarterly installments. The deed gave them an option to renew or extend the term of occupancy on mutual terms and conditions. A was to pay for the electricity and water usage calculated with the help of a separate meter. He could not make any alterations in the premises without the consent of the grantor. On failure to pay the money, the grantor was at liberty to terminate the agreement without notice and without compensation. The occupancy rights were transferable in case the licencee could not carry the business for a specified term, but with the prior approval of the grantor. Explaining the difference between lease and a licence, the court held: If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession therefore, continues to be with the owner of the property, but the licencee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of premises, it would conclusively establish that he was a lessee.

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The court quoted with approval the observation of Lord Denning in Errington v. Errington, 51 to the effect that, although a person who is let into exclusive possession is prima facie , to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancythe question in all these cases is one of intention. Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land? The court laid down four propositions to find out whether a document creates a lease or a licence; (i) to ascertain whether a document creates a lease or a licence, the substance of the document must be preferred to the form; (ii) the real test is the intention of the parties—whether they intended to create a lease or a licence; (iii)if the document creates an interest in the property, it is a lease, but if it only permits another to make use of the property of which the legal possession continues with the owner it is a licence and (iv)If under the document, a party gets exclusive possession of the property prima facie he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease. The court held that the document here created a lease and not a licence, as it did not confer a bare personal privilege on A to use the rooms. It had put him in exclusive possession of the property untrammelled by the control and free from the grantor’s directions. These conditions that were incorporated in the document were the ones that were usually found in a lease. The right of the grantees to transfer their interest under the document even though with the consent of the grantor was destructive of the theory of licence as a licence is never transferable being but purely a personal privilege. Therefore, the court held that these conditions in the document created a lease and not a licence in favour of the grantee. In Quality Cut Pieces v. M. Laxmi and Co. ,52 a departmental store run by Departmental Services Stores (DSS), was opened with the objective of providing a wide range of goods under one roof. They constructed the building in the old godown of a mill, furnished it with furniture and fittings, electrical fittings etc., entered into an agreement with several traders who wanted to stock, display and sell their goods through DSS. Each trader was to be provided by the DSS a stall complete with fittings and furniture. None of the stalls had a locking arrangement or a wall. Each stall was made with wooden showcases placed back to back and waist high counters in the front. While the ownership of the stalls and furniture was with the DSS, it was only with respect to the goods displayed that the ownership was in the traders. There was a single entrance to the store manned by the security provided by the DSS. The traders were not permitted to change the character of goods to be sold by them through DSS unilaterally. The timing of the opening of the Page 11 of 79

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market was regulated by the DSS. The control was so strict, that before the opening of the gate no one could enter, and as the store was closed for lunch between 12.00 noon to 3.00 pm, all traders had to come out and could go in only at the reopening of the gates. In order to lure more customers the traders requested the management to do away with the lunch break. The management decided to do away with the lunch break, however, it did not make much of a difference, hence, the management restored the old timings. The issue was, whether the agreement constituted a lease or a licence. The court after looking over the entire facts held that the legal possession was still with the DSS, and the traders had a bare permission to use the premises, therefore it was a licence and not a lease. In BV D’souza v. Antonio Fausto Fernandes ,53 the issue before the Supreme Court again was whether the document created lease or a licence. The document was described as an agreement of leave and licence and the parties were described as the licensor and the licencee. The very first sentence of the document contained the words, ‘landlord hereinafter called the licensor’. According to the document, the grantee was let in as a tenant on the monthly rent of Rs 350, besides the water and electricity charges. It was agreed that the grantee would not sublet, under-let or part possession of the premises to any stranger nor would he keep the premises vacant for more than three months without the consent of the licensor. The court held that this document created a lease as the question of subletting can arise only in a lease. In Samir Kumar Chatterjee v. Hirendra Nath Ghosh ,54A was the owner of a house and had let it out to B. B took the possession of the property as the tenant. He inducted into the premises another person C, and gave exclusive possession of one room to him. A later sold the premises to B. Now B as the owner, brought a suit for eviction against C on the ground that he was a mere licencee and therefore should vacate the premises, as the licence in his favour was revoked by B. The court held that a sub-tenancy or sublease was created in C’s favour. The fact that no rent receipt was issued in favour of the tenant was due to the fact that B,here, was not empowered legally to create a subtenancy. This was therefore an arrangement to avoid giving legality or authority to the relationship. This view of the Calcutta High Court that even if B was initially incompetent to create a sub-tenancy, nevertheless, created a valid one so as to establish a relationship of a lessor and a lessee, was later overruled by the Supreme Court. In Delta International Ltd. v. Shyam Sunder Ganeriwalla ,55 a person A had created a lease in favour of B. B in turn created an agreement with C styled as a lease and licence for running a petrol pump, a service station and for sale of a motor spare parts. B was not empowered under the agreement to create a sub-tenancy of the interest that he had in the property without the consent of the landlord. In the deed it was specifically mentioned that the licence is granted for the purposes of use, occupy, enjoy, run and work the petrol station and that B was empowered to revoke the licence in the event of a breach of any condition. The Supreme Court held on the basis of this agreement that the document created a licence and not a lease. The court also approved and summarised the tests for determining the nature of the document as follows:

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(i) The construction of the document would depend upon its pith and substance and not upon the labels that the parties may put upon it;56 (ii) The paramount test is ‘the intention of the parties’;57 (iii)Exclusive possession of the premises being granted although an important factor does not preclude the court from holding that the document is in fact a licence;58 (iv)Even where exclusive possession is granted, only a licence will be created if the grantor did not have power to grant a lease;59 (v) Where the dominant intention is to use the premises with fittings and fixtures for the purpose of running a business, the same does not tantamount to a lease of immovable property.60 Illustrations Following are the illustrations of a licence: (i) A bilateral instrument transferring the right to collect market dues for a certain period on payment;61 (ii) An agreement styled as ‘agency’ with a company providing occupation of a room in the demise with provision for employing a durvan or, any number of its employees it liked, and store in it any amount of goods, it liked;62 (iii)Apermission to use the plot of land as a haat or market for a fixed period for a fixed sum with a right to collect tolls in the market, and covenants to keep the haat clear, not to interfere with the rent of any permanent shop, not to make alteration without a leave of the owner, and to give up possession at the end of the term;63 (iv)An occupancy of an apartment in a hotel in absence of any control of the owner;64 (v) A right to cut grass for three years with exclusive possession;65 (vi)Exclusive possession under a fixed term with provision for extending the term of the contract by mutual agreement with penal provisions providing for enhanced payment of rent in case the person in possession continues after the term of five years;66 (vii)

A person permitted to occupy premises for safety and without payment;67

(viii) Permission to use the land68 where no exclusive possession is given;69 (ix)With exclusive possession where the grantor himself has no power to grant the lease;70 (x) An agreement for nine months giving a right to pluck, cut, carry away and appropriate the enumerated forest produces;71 (xi)Permission to cut or remove trees, or to tap coconut trees;72 (xii)

A right to collect usufruct from 135 coconut trees for one year;73 Page 13 of 79

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(xiii) A right for two years to tap toddy from palmyra trees but not to cut the leaves;74 (xiv) The owner of a mews, reserving a space for garaging the grantee’s motor car at a monthly rent;75 (xv) Government accommodation provided to a government employee during service tenure;76 (xvi) A permission to stay in the fully furnished flat on request and on condition to vacate it the moment the owner returns from abroad;77 (xvii) Obliging a friend or relation in need of an accommodation by giving him premises for temporary use;78 (xviii) An agreement allowing the grantee to occupy and use the workshop for a period of five years, for 20 hours a day;79 (xix) A permission given to the grantee to enjoy the land in a particular manner80 with compensation on a daily basis;81 (xx) Accommodation granted in a cattle shed at the grantee’s request, on the condition of payment of repair charges;82 (xxi) Permission by the state road transport corporation to another to run a refreshment room under its inspection and check;83 (xxii) An agreement as per which the licencee are to advance to the licensor a daily licence fee inclusive of electricity charges of one day, subject to a minimum per week with no right, title or interest to possess the premises, and the land on which the building is constructed cannot be transferred except by the previous consent in writing of the development authority from which it was taken on a perpetual lease;84 (xxiii) An employee living in the quarter allotted by an employer for greater convenience of the employer’s work;85 (xxiv) A manager living in the premises belonging to a bank without obligation to pay anything in return;86 (xxv) A shop given only for sale of milk with the employees living in the staff quarters;87 (xxvi) A servant required to live in the premises for the better performance of his duties;88 (xxvii)A lodger89 if he has no separate apartment90 or even if he has a separate apartment, if the terms of the letting show that the landlord retains control over the whole house, eg when he provides attendance91 or where he has exclusive control of the front door;92 (xxviii)

An inmate of a boarding house;93

(xxix) A guest at an inn;94

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() A document purporting to be a lease by a railway company of plots in a station yard for the purpose of stacking coal, with a right of access reserved by the railway company.95 An order calling upon the licencee to vacate the site after expiry of one year that is fixed under the terms is valid.96 Similarly, if the licencee, acting upon the licence, executes permanent works and incurs expense, the licence cannot be revoked by the grantor if the grantor stands by and allows the licencee to do such acts in the belief that he has a right to do so.97 The essence of a licence is that it is revocable at the will of the grantor, the provision in the licence that the licensee is entitled to a notice before being required to vacate is not inconsistent with a licence.98 DURATION OF CERTAIN LEASES IN ABSENCE OF WRITTEN CONTRACT OR LOCAL USAGE

Section.106 Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a

lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

GENERAL PRINCIPLE

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Ingredients of the Section (i) In the absence of a contract or local law or usage to the contrary; (ii) lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year; (iii)terminable, on the part of either lessor or lessee, by six months’ notice; (iv)a lease of immovable property for any other purpose shall be deemed to be a lease from month to month; (v) terminable, on the part of either lessor or lessee, by fifteen days’ notice.1 Legislative History This section was amended in 2003 by Act 3 of 2003, s. 2. The original section read as follows— In the absence of a contract or local law or usage to the contrary, lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy.2

Implied Duration of Lease The term ‘implied’ itself means that the presumption of periodic duration applies where no period is agreed upon between the parties.3 This rule is subject to a contract to the contrary. The application of this section also extends to cases where the lease, being unregistered,4 is either void making him a tenant at will,5 or cannot be looked at to ascertain the agreed period.6 This presumption can apply only when it can be shown that the tenant paid rent, which was accepted by the lessor. A stipulation that the rent would be payable monthly would raise a presumption that the tenancy is from month to month,7 but in case the rent is not accepted, this presumption cannot arise.8 The section relates the implied duration of tenancy with the purpose for which the lease was created. Leases contemplated under the section can be for agricultural or manufacturing purposes. The purpose of the lease has to be ascertained with reference to the time of origin of the lease, and not how it was used later.9 Evidence relating to a subsequent period, even if it shows a change in user, is of no avail for determining the purpose of the lease.10 Contract to the Contrary The application of the implied duration and the need for notice is negativated in case of a contract to the contrary. Notice is not necessary, and a mere demand will suffice if the

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lease is on condition that the land demised should be surrendered whenever required.11 Conditions can be incorporated in the lease deed to the effect that: (i) If the lessee fails to pay the agreed rent, the lessor would be entitled to evict the lessee;12 (ii) The determination of tenancy can take place at the instance of either party at any time;13 or (iii)Where a lease determines by efflux of time and there is no allegation of holding over, the tenant remains merely a tenant at sufferance;14 (iv)The lessee shall surrender the premises on demand, would show a ‘contract to the contrary.’15 But an oral undertaking to surrender on demand would be of no avail where the tenant continues in possession after the expiry of the original period.16 Local Law or Usage The application of the section is also subject to a local law or usage. The term ‘ordinary tenant’ means a monthly tenant in Calcutta, unless there is some indication to the contrary.17 In monthly leases of houses, there is a usage requiring a month’s notice to quit in Bombay18 and 15 days in Punjab.19 A holding under the custom of utbandi in Bengal, is merely a tenancy at will, which can be terminated by verbal demand for possession.20 Lease for Manufacturing Purposes The expression ‘manufacturing purpose’ is used in its popular dictionary meaning i.e., making of articles of trade and commerce by means of machinery.21 The test to determine it are,22 that a certain commodity must be produced; the process of production must involve either labour or machinery;23 the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed as to lose its original character.24 A lease granted for running a flour mill,25 a bakery,26 pottery,27 and making steel trunks,28 the lease of an open plot of land for making bricks out of clay is a lease for ‘manufacturing purposes’.29 However the lease for manufacture of cards and cards board boxes where the main business is of printing;30 cutting stalks of fodder into smaller sized pieces or cutting it into chaff so that they may become readily marketable or easily eatable by the cattle;31 or cutting of the timber with the aid of the saw where the object of the lease, was the sale of sawn timber,32 storing iron,33 preparation of sweets,34 retreading of old tyres,35 the manufacture of spare parts that is incidental to the main purpose of disposal of vehicles in order to repair or re-condition them,36 is not for a Page 17 of 79

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manufacturing activity and 15 days’ notice would be valid in the circumstances.37 Similarly, a lease partly for agricultural and partly for manufacturing purposes also requires a notice of 15 days.38 The onus of proving it to be a manufacturing lease is on the tenant.39 If the lessee uses the land for manufacturing purposes with the knowledge of the lessor, then, in the absence of a contract, he is a yearly tenant, and entitled to six months’ notice. A manufacturing lease which is not from year to year or is unregistered, requires 15 days’ notice of termination. Notice to Quit A monthly tenancy can validly be terminated by giving a 15 days’ notice.40 A tenancy, except where it is at will, may be determined only on the expiry of the period of notice of a specified duration under the contract custom or statute governing the premise in question.41 The provision as to notice to quit applies to cases where the parties are not regulated by their own contract.42 Both the period of the lease and the length of notice may be determined by the contract.43 If the contract provides for a different period, the requirement of 15 days’ notice does not apply.44 Notice is not necessary where the tenancy comes to an end by efflux of time45 or when tenant holds under a rent note46 or where the relationship of landlord and tenant between the parties has been created not by a lease, but by a decision of a court.47 Filing of the eviction suit under the general law in itself is a notice to quit on the tenant.48 A notice is necessary in case of a tenancy at will49 or a lease which is determined by forfeiture,50 or when it is a periodic tenancy from year to year or from month to month.51 In case of joint tenancy, notice to one of the joint tenants is sufficient notice as against the other joint tenants and, it is not necessary to give any separate notice to each tenant.52 However, the notice to quit must be addressed to all.53 If a tenant evicted without notice to quit sues for possession claiming as full owner and that claim fails, he cannot turn round and claim to be restored to possession for want of notice.54 Form and Construction of Notice to Quit A notice must be in writing, signed by or on behalf of the person giving it. A notice signed by the attorney is valid.55 A notice given at the instance of the landlord, though not signed by him, is sufficient.56 Similarly, a notice sent on behalf of the lessor by his lawyer57 or by sons on the death of their father on his behalf,58 or by messenger of the telegraph department;59 and in case of government lands a notice given by the collector, is valid.60 A notice given by the receiver appointed by the court is valid.61 In case of premises belonging to a temple, notice may be signed by the authorised agent of manager of the temple.62 A notice given by an unauthorised person on behalf of another is invalid and cannot be ratified by the person on whose behalf it was given.63 Where there is more than one lessor, notice should be given by or on behalf of all of them.64 However, when a Page 18 of 79

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co-sharer gives notice on his own behalf as well as of the other co-sharer, who, by joining in the suit admits that he is acting for them, notice is valid. 65 A notice given on behalf of some co-owners on the facts and circumstances of a particular case may be treated also on behalf of others.66 In case of joint landlords, tenancy can be put to an end with all of them acting together67 but not where one of them is acting as the manager.68 Where the lessor assigns his interest to another the assignee is competent to give notice69 and after such assignment the landlord cannot issue a notice,70 except where, by the terms of assignment the landlord has undertaken to recover possession and deliver it to the assignee.71 A notice given by a tenant to his sub-tenant after the termination of his own lease is not valid.72 Where all the co-landlords gave the notice and one of them died before the expiry of the notice period, the lessees cannot ask for a fresh notice from the legal heirs of the deceased.73 Notice should be with Respect to the Property Leased The notice terminating the tenancy must be with respect of the property leased, and not in respect of only a portion of the lease.74 It must extend to all the premises and not to a fraction of holding, without any breaking up or splitting up of the tenancy.75 If given for a fraction of holding it is not even good for the portion concerned, but an accidental omission to mention a part of the demised premises in a notice does not make it invalid.76 The reference, in the notice to quit, to the leased premises would include a reference to any land appurtenant to the same. Where there is a substantial difference between the accommodation mentioned in the notice and the accommodation actually let to the tenant, notice does not validly terminate the tenancy,77 but a bona fide mistake which does not mislead the tenant when the boundaries are correctly described78 but erroneously stating the area to be incorrect in the notice, will not invalidate the notice.79 Essentials of Notice A notice has to be very clear and must give at least 15 clear days to quit.80 A notice terminating tenancy from the date of issue of the notice is not valid.81 Notice to quit does not require any ground to be stated.82 If the intention of the notice is manifest, namely, to call upon the tenant to vacate premises, the fact that there is also a demand to pay the arrears of rent does not invalidate the notice.83 Clear words indicating the intention to have the premises vacated within 30 days,84 failing which the tenant would be treated as trespasser and the suit for ejectment will be filed is a valid notice.85 A defective notice if accepted and acted upon will terminate the tenancy,86 but if not acted upon does not terminate the tenancy and the landlord can withdraw the suit.87 If, after institution of the suit, the tenant does not raise the objections as to the validity of the notice he cannot raise it at a late stage of the litigation.88 A notice to quit has to be liberally construed so that it should not be defeated by inaccuracies either in the name of the tenant,89 or of the landlord90 or in the description of the premises,91 or the date of the expiry of the notice.92 If the notice fixes a lawful date Page 19 of 79

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for the termination of the tenancy, it does not matter if the tenant is described as a trespasser,93 or that words of warning are added such as a threat by the landlord to increase the rent.94 Notice Must Manifest a Clear Intention for Eviction The landlord who gives notice must manifest the intention that, from a certain date the relationship of lessor and lessee shall come to an end. Whether this was the intention, will mainly depend on the tenor of the notice.1 Where a notice clearly conveys the intention to terminate the lease by a certain date the mere fact that it is coupled with an intimation that if the lessee continues in possession after such date he will be liable for enhanced rent,2 or the fact that the notice provides for its abandonment in case the other party agrees to an enhancement or reduction of the rent,3 does not make the notice bad. A notice indicating that others were paying higher rent and so the tenant should also do the same is insufficient either to determine the tenancy or to enhance the rent.4 A notice to quit, or in default to pay an enhanced rent operates as a notice to quit with an offer of a new tenancy at an enhanced rent and if the tenant continues in occupation, he is taken to have acquiesced in the proposal to pay enhanced rent,5 except when he contests the demand.6 Length of Notice Notice has to be for six months for yearly,7 and 15 days for monthly tenancies.8 If the notice is short of the specified statutory period, it will not be valid.9 Where there is an express or implied contract that the period in a lease from year to year or month to month should be reckoned according to the Bengali year and not according to the British calendar, a notice expiring with end of the year or the month of the tenancy calculated according to the Bengali calendar will be sufficient to terminate the tenancy.10 The 15 days must be clear days and thus, a notice to quit on the 30th served on the 15th is inadequate.11 In case of a monthly tenancy, a notice of two months instead of 15 days is valid.12 Notice to be Given to Whom Notice is to be given to the lessee or to his representative or even an assignee. Upon the death of the original tenant, a notice terminating the tenancy, addressed to and served upon one of the heirs of the original tenant, who paid rent and acted on behalf of all the heirs of the original tenant is sufficient.13 A notice to the karta on behalf of all the members is valid and his refusal is treated as a refusal on behalf of all the joint family members.14 Where the tenants are joint,15 a notice to quit addressed to all the tenants but served on one of them, is sufficient. The position of the various heirs is that of co-tenants and not joint tenants, and if the landlord does not serve the notice on all the heirs, the petition for ejectment cannot be maintained.16 A notice directed to the managing director of the lessee company is valid.17 A notice of terminating tenancy received by the tenant Page 20 of 79

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also in his capacity as a general power of attorney of other tenants is a service on all tenants.18 Service of notice Notice to quit may be served personally or by post,19 at the residence, or, as a last resort, by affixing it to the property demised; but publication of a notice in a local newspaper,20 or a telegraphic notice,21 or sent under ‘Certificate of Posting’22 is not a valid notice. A notice served on the tenant; his duly authorised agent; solicitor or to one of the tenants when there are joint tenants23 is complete despite the fact that either he refuses to take it,24 or it is received by his family member25 or somebody else or his agent and it is not communicated to him.26 It can also be sent by ordinary post27 or registered post,28 but must be sent at the correct address,29 with the postal receipt containing the full address of the tenant30 and should reach his residence and not in all cases his office,31 but it does not matter if his son32 or his brother33 or somebody else receives it,34 or it comes back with the endorsement ‘not found’,35 or by a half-hearted denial of service of it by the tenant,36 or when the tenant, in his written statement, does not dispute the factum of notice, though contests its validity or if he refuses to accept it.37 However, if the tenant is unavailable, he cannot be presumed to have refused it and there is no service.38 Similarly, where a notice sent through registered post comes back with an endorsement “not present” no presumption of service can be drawn.39 The presumption of service of notice by a registered notice can be rebutted by the addressee,40 but in absence of rebuttal, service is presumed.41 In case of personal service, leaving notice at the tenant’s residence without delivery to his wife or servant is not sufficient. It should be received by the family members if personal service is impossible, but that does not include a service to the separated wife of the tenant at her separately maintained residence.42 Where two registered notices were sent; one at the residential address which came back with the endorsement refused and one at the office of the tenant which never came back, the requirement of serving notice was said to have been fulfilled.43 Affixing the notice to the property is the last resort, if the other modes of service fail or have become impossible by reasons of tenant going abroad without maintaining a separate residential address,44 but in absence of any evidence of any finding of the tender or delivery of notice personally to the tenant, affixation of notice at a conspicuous part is invalid.45 MODE OF EXECUTION OF LEASE

Section.107 Leases how made.— A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. Page 21 of 79

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All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

LEASES HOW MADE A lease of immovable property,46 from year to year,47 or for any term exceeding one year, or reserving a yearly rent,48 can be made only by a registered instrument.49 All other leases of immovable property50 may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. A decree operating to create a lease is not exempt from registration.51 A lease of a fishery for more than one year52 or a lease for three years,53 or lease of a pond for a period of 10 years54 must be registered, and an oral lease will be illegal but a lease for 11 months on monthly rent, need not be registered.55 In the absence of a registered instrument, the lease for five years56 or a lease for manufacturing purposes shall be deemed to be a ‘lease from month to month’ for which 15 days notice will be valid.57 Exclusion of the Rule The rule stated above does not apply to a lease of government lands,58 to leases granted by the government,59 or to a lease for agricultural purposes.60 Though an agricultural lease need not be in writing, if it is reduced to writing, it must be registered.61 However a lease in favour of government can be made only by a registered instrument.62 Oral Agreement Accompanied by Delivery of Possession An oral lease or a rent note for a year is valid if actual or constructive63 possession is given, but in a lease for more than one year, the tenant continuing in possession after one year becomes a tenant by holding over and such a lease being created by the operation of law is binding, even though it is unregistered.64 A rent deed can support the terms of an oral lease or an oral agreement and is good evidence for tenant to show his possession.65 Consequences of Non-registration of Lease for More Than a Year Page 22 of 79

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A lease required to be registered is void if unregistered66 and the document can neither be used as a piece of evidence in proof of all the terms of the lease,67 nor would entitle the claimant for a permanent lease to secure a permanent injunction restraining the lessor from dispossessing him.68 The landlord cannot evict the tenant on the basis of its terms,69 but if, after delivery of possession, the rent is paid and accepted it is deemed to be a monthly lease terminable by 15 days notice.70 Execution of Lease by Both the Lessor and the Lessee Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.71 Notification by the State Government The state government may, from time to time, by notification in the Official Gazette, direct that lease of immovable property, other than leases from year to year or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.72 RIGHTS AND LIABILITIES OF LESSOR AND LESSEE

Section.108 Rights and liabilities of lessor and lessee.— In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:— (A) Rights and Liabilities of the Lessor (a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover; (b) the lessor is bound on the lessee’s request to put him in possession of the property; (c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and Page 23 of 79

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may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (B) Rights and Liabilities of the Lessee (d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease; (e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void; Provided that, if the inquiry be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;

(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor; (g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor; (h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in, which he received it; (i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them; (j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee; (k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is and the lessor is not, aware, and which materially increases the value of such interest; Page 24 of 79

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(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf; (m)the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left; (n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor; (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto; (p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes; (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

DUTIES OF THE LESSOR The duties of the lessor are as under: (1) Duty to Disclose any Material Defect in the Leased Property In the absence of a contract or local usage to the contrary, the lessor of immovable property, as against the lessee with respect to the property leased is bound to disclose to the lessee any material defect in the property,73 with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover.74 In construing a lease deed the court must look at the words used in the contract, unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the court can do about it. (2) Duty to Put the Lessee in Possession Page 25 of 79

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The lessor of immovable property, as against the lessee with respect to the to the property leased is bound on the lessee’s request to put him in possession of the property of the agreed portion failing which, a cause of action arises in favour of the tenant from the date of the lease. He may refuse to pay him rent75 or can file a lawsuit76 against the lessor and against any third person, who may be in possession or sue the lessor for damages.77 An express covenant excluding the implied covenant for quiet enjoyment will not relieve the lessor of his duty to give possession.78 A lessee in possession of only a portion of the property leased is entitled to a reduction or abatement of rent.79 The burden of proof that possession has been given is on the lessor,80 but shifts on the lessee, if the lessee has paid the rent, but has not been given the possession.81 If the tenant of a shop hands over the possession of the shop to the landlord under an order of the rent controller for demolition, renovation and reconstruction on an undertaking by the landlord that the tenant might re-enter in it after reconstruction, the tenant has an implied covenant for peaceful possession and enjoyment of the leased property.82 (3) Covenant Against Interruption of Enjoyment of Lease The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. The covenant is unqualified and protects the lessee against interruption by the lessor, his heirs and assignees, or other lessees of the lessor, or by any other person or persons, whomsoever. It is also the duty of a tenant under a perpetual tenure to protect himself against illegal encroachments by others.83 A lessor cannot substantially derogate from his grant. Interference with the lessee collecting rents from his sub-lessee is a breach. A sub-lessor is entitled to recover damages from the lessee, if the head lessor puts an end to the lease during the term of the sub-lease.84 The payment of rent and the performance by the lessee of the contracts binding on him are not conditions precedent to the covenant for quiet enjoyment, unless it is a lease for a further term dependent on the lessee paying rent and performing the covenants of the lease. The Benefit of Covenant Runs with the Land The benefit of such contract shall be annexed to, and go with, the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. It is not open to a licencee of the lessee, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence, to set up title to the property on the ground that he had purchased the property from the owner and so, refuse to deliver possession.85 RIGHTS AND LIABILITIES OF LESSEE (1) Right to Enjoy Accretions to the Property Page 26 of 79

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A lease is a transfer of a right to enjoy the property and therefore, if during the continuance of the lease any accession, i.e., addition or improvement is made to the property; such accession shall be deemed to be comprised in the lease. If an addition is made to the land, it will form part of the demise of the lessee. As the accretion is with respect to the property, the tenant acquires a right to enjoy it in the same manner as he does the property, and cannot claim the right of ownership in it. He must surrender it to the lessor at the end of the term86 even where the lessee encroaches upon adjoining land and acquires title thereto by prescription.87 (2) Right to Revoke Lease in the Event of Destruction of Property by fire, etc. The primary purpose of creating a lease is to confer the right of enjoyment on the lessee. If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lessee has a right to avoid the lease and it shall, at the option of the lessee, be void.88 The clause confers an option and if the lessee does not exercise it,89 destruction90 of tenanted structure does not extinguish the tenancy automatically and the right of occupation of the tenant under the contract of tenancy continues to exist between the parties.1 The right conferred on the lessee is to avoid the lease and not to rebuild the premises and claim the costs from the lessor. If the lessee does not avoid the lease and builds new premises on the land despite the protest of the lessor, he cannot claim tenancy in respect of those premises, if the lease was for premises only and not for land.2 Where, except a small portion of the wall of the structure which was leased along with the site all the remaining portions fell down, and the structure did not remain, even then there would be no frustration of lease and the landlord tenant relationship would not come to an end. Here again, the tenant is not entitled to put a superstructure on the site without the permission of the landlord and the landlord would be entitled to get a decree of mandatory injunction to demolish the structure put up by the tenant.3 But in cases where destruction of the premises is by the landlord himself, a suit by the tenant for directing the landlord to restore possession in the original condition is maintainable.4 The destruction must be substantial and not small. The lessee can exercise the option in case of destruction of coffee plants5 and godowns6 by fire during the term of the lease, but he cannot avoid the lease when the property leased was flooded with sea water,7 or where premises are demolished under the orders of a municipal authority8 or when a godown was destroyed by fire caused by the negligence of the lessee’s watchman,9 or where a part10 or even the whole11 of the demised premises have been requisitioned by the government for long periods of time or where a lessee of salt pans is prevented from manufacturing salt by labour trouble,12 or where there is temporary damage due to a cyclone,13 or where crops are damaged by heavy rains.14 The notice avoiding the lease takes effect immediately on service and s. 106 has no Page 27 of 79

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application. But if the lessee does not give vacant possession, he will be liable for rent on an implied tenancy by holding over.15 (3) Right to Repair Property and Claim Costs in the Event of its Neglect by the Lessor Since the lessor continues to be the owner of the property, it is his duty to care for it and carry out necessary repairs from time to time at his own expense. The property, due to the lessor’s neglect should not become unfit for enjoyment. If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor. However, he cannot terminate the tenancy by reason of the lessor’s default, or quit.16 The lessor is under no liability to repair in the absence of an express contract making him liable,17 rather, the liability is that of the lessee.18 The lessee is also liable for damages for nuisance on the demised premises, or for injury of third persons, or to adjoining property due to the house being in a dilapidated condition.19 Even a covenant by the tenant to pay the rent without deduction does not exclude the tenant’s right to make this deduction. Where wiring and its maintenance are the responsibility of the lessor, and a visitor dies of severe electrical shock because of defective wiring in the premises, the lessor is alone liable for the loss caused, but the lessor is not liable where he is under no obligation to attend to the upkeep.20 Where a godown, given on lease for a period of five years and found in good condition after inspection, later collapses and damages the wall of the adjoining godown the tenant is liable.21 (4) Right to Make Payments Obligatory on Lessor As the owner of the property, it is the primary duty of the lessor to pay land revenue,22 government assessment or ground rent or rates and taxes,23 etc., unless by special stipulation a lessee undertakes to pay all taxes due,24 or payment of decretal amount to stop the sale of the leased property that is subject to a mortgage.25 If the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor. But a payment, which the lessor is not bound by law to make, does not entitle the lessee to re-imbursement from the lessor.26 (5) Right to Remove Fixtures During the continuance possession of the property the lessee may attach something to the land that becomes a fixture or part of the land belonging to the landlord. Under this section, the lessee may, even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards, all things which he Page 28 of 79

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has attached to the earth;27 provided he leaves the property in the state in which he received it.28 The rule is subject to a contract to the contrary,29 and if according to the contract, the buildings to be erected thereon are deemed to be the property of the lessor, and are leased back to the lessee, they are part of the demised premises.30 When a person who is not a trespasser, but in possession of the property lawfully makes an improvement on the leased property, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil. The option of taking the building, or allowing the removal of the material, remains with the owner of the land. The tenant can be asked to remove it if he has put it up without the permission of the owner31 but in such a case he cannot claim compensation.32 A person bona fide putting up constructions on land belonging to others with their permission is not a trespasser, nor would the buildings so constructed vest in the owner of the land.33 The lessee is the owner of the building put up by him on the land leased,34 and it is the lessor’s option to either take the building on payment of compensation, or if he is unwilling to pay compensation, to allow the lessee to remove the building.35 However, trees planted by a tenant pass to the landlord on the expiry of the lease.36 He can enjoy the trees so long as his tenure lasts,37 and is not entitled even to trees which he has planted himself.38 The tenant can fell timber trees but not non-timber trees39 or babul trees or timber trees that have grown spontaneously.40 The right to remove the buildings negatives the rights to compensation.41 When there is nothing to remove, there is no right to compensation.42 However, if the land and building are acquired under the Land Acquisition Act, 1894 during the term, the lessee is entitled to compensation for the buildings he has erected.43 (6) Right to the Benefit of Crops grown by him When a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them.44 (7) Right to Assign the Lease Since the right to enjoy and occupy the property is transferred in favour of the lessee, he acquires an interest in the property, which is both transferable as well as heritable.45 The whole of this interest or any part of it can be transferred absolutely or by way of mortgage or sub-lease in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.46 A tenant having an untransferable right of occupancy,47 the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate Page 29 of 79

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under the management of a Court of Wards, is not authorised to assign his interest as such tenant, farmer or lessee. Sub-lease Sub-letting postulates two distinct persons, the head tenant and sub-tenant.48 It is an assignment of a lesser term, and there is no privity of estate between the lessor and the sub-lessee, although the sub-lease is for the whole residue of the term, i.e., which specifies no term.49 It operates as a sub-lease,50 and the obligation to hand over possession of the property on the determination of the tenancy is not upon the assignee, but upon the lessee, and the lessee is therefore, the proper person to whom notice to vacate should be given.51 A landlord can enter into a direct lease with the sub-lessee.52 Liability of the Lessee or Assignee After the Transfer A lessee, even after transferring the whole of his interest53 and giving a notice to that effect to the lessor54 does not absolve himself from his contractual liabilities to the lessor, and there is no inconsistency between the liability of the original lessee and that of the assignee.55 If the lessor accepts rent from the assignee or otherwise recognises him as his tenant, the lessee ceases to be liable and the privity of contract is extinguished,56 but the lessee would continue to be liable where the assignee exercises an option for renewal contained in the original lease, but not where the assignee pays the rent not as assignee but as the agent of the lessee.57 An absolute assignee is liable by privity of estate to the lessor for rent,58 and the lessor can therefore enforce payment of rent.59 On an assignment of a lease, although a property in estate comes into existence between the lessor and the assignee, the lessee continues to remain liable to the lessor in respect of all the covenants between him and the lessor.60 In the case of a sub-lease of the property which is subject to a maintenance charge and the sub-lease contains a covenant for quiet enjoyment, on the sub-lessor failing to pay the maintenance charge, the sub-lessee is entitled to pay the same in order to secure quiet enjoyment of the property and to them to recover the same from the sub-lessor.61 Covenant not to Assign The rule of the lessee assigning his interest under a lease can be taken away by a contract to the contrary.62 However, a lessee under a covenant not to assign can nevertheless assign with the express consent of the lessor to a particular person.63 Where consent is unreasonably refused,64 the lessee may assign without consent, or may obtain from the court a declaration of his right to assign.65 Withholding of consent will be reasonable if lessor has a bona fide objection to the proposed lessee from the point of view of his respectability or financial responsibility.66 A covenant not to assign can also be imposed statutorily.67 DUTIES OR LIABILITIES OF LESSEE

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According to s. 108, the lessee is under the following liabilities or duties. (1) Lessee’s Duty of Disclosure The lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is and the lessor is not, aware, and which materially increases the value of such interest. (2) Obligation to Pay Rent The lessee is bound to pay or tender at the proper time and place the premium or rent to the lessor or his agent in this behalf.68 The obligation to pay rent starts as soon as the lessor has fulfilled his obligation and the lessee has been put in possession.69 Payment can be made by the lessee; but it cannot be made by a stranger unless he acts as an agent of the lessee. It is not necessary that the lessor should make a demand for rent.70 The lessee must seek out to the landlord to make the payment. Rent or consideration by the lessee is to be paid to the lessor. Payment to one of several joint lessors is a payment to all,71 but payment to one co-sharer landlord is not a discharge against all and in case of non-payment they may sue together, or any one of them may sue alone for the whole rent. One co-sharer cannot sue separately for his share of the rent, unless there is an agreement that the lessee shall pay each his share separately.72 The mere fact that they have been recovering rent separately in the past does not prevent them from suing jointly. A tender at the landlord’s or his agent’s usual place of business is valid and sanctioned by custom.73 Where the lessee is not given possession of the entire premises but demised it would depend on the circumstances of each case whether the rent would be suspended or the tenant would be liable to pay a proportionate part,74 and where there is partial eviction by the lessor the whole rent is not suspended unless the rent is a lumpsum rent for the whole land, treated as an indivisible subject.75 Where two tenancies are amalgamated and the tenant is dispossessed by the landlord from a portion of one of the plots, the tenant cannot claim suspension of the whole rent, but only of the rent of the plot from the portion of which he has been dispossessed.76 Where part of the tenant’s holding is lost by diluvion, he is, in the absence of any special stipulation in the lease, entitled to a proportionate abatement of rent,77 and the onus is on the tenant to prove his eviction and the quantum of reduction that he is claiming.78 In case the leased property is acquired under the Land Acquisition Act, 1894, the right to an abatement of rent will depend upon whether the whole compensation is paid to the landlord. This right can be taken away by a contract to the contrary.79 (3) Duty of Maintaining the Property Page 31 of 79

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The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force. He is also under a duty to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left. The obligation to restore the premises in good repair does not apply if the property is destroyed by a fire not caused by the negligence of the lessee, but he is liable for fire lighted intentionally or caused by negligence,80 for e.g., storage of cotton in an unventilated room where it is ignited by spontaneous combustion is negligence.81 Where part of the leased building collapses due to a natural calamity, the landlord cannot put an end to the tenancy or restrain the tenant from effecting repairs.82 The obligation is not affected if material damage is effected by the sub tenant or by the mode in which the tenancy is terminated.83 The lessor has statutory authority to enter the premises for the purposes of inspecting the state of repair. A general covenant to repair includes repair not only of buildings existing when the demise is made, but all those which may be erected during the term.84 The covenant for general repairs means good and substantial repair’.85 If the covenant is to leave or restore in good repair or in the same condition as when the lessee took possession, only one suit can be brought at the end of the term, and the damages will be the cost of putting the premises in the state of repair required by the covenant.86 Any sum recovered during the term as damages for breach of covenant to keep in repair will be taken into account. The rule does not apply to property other than the leasehold property.87 (4) Duty to Give Notice of any Encroachment on the Property If the lessee becomes aware of any proceedings to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor. It is incumbent on every lessee to protect his lessor’s property from encroachment or unlawful eviction. The landlord holds possession through his tenant, and if the tenant is dispossessed, the landlord may sue for recovery of the land demised under the Specific Relief Act, 1963.88 As against a trespasser where the title of the lessor is endangered, he may sue for a declaration of his rights and for a decree giving him formal possession as against the trespasser.1 (5) Duty to Use the Property in a Reasonable Manner

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The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto. A lessee will be liable if his own conduct contributes to the deterioration of the tenanted premises.2 For instance, excavation done in such a manner as to cause damage3 or material alterations, i.e., important alterations such as those which substantially change the front or structure of the premises; the putting up of a heavy overhead tank without adequate support;4 land leased for construction of a reservoir if used as a rubbish shoot,5 felling timber or bamboos even though fresh bamboos sprout when cut,6 amounts to waste; but small excavations which cause no damage are not actionable.7 A mere omission of a tenant to put manure in the land8 or an overhead cement concrete water tank erected by the tenant in the open space adjoining the premises, is only a temporary structure which can be removed by dismantling without causing any damage to the demised premises.9 (6) Use of Property for a Different Purpose The lessor may show that the property was used for a different purpose and the use is destructive of or permanently injurious, to the property.10 For instance, a tenant may not, on land let for cultivation, construct a tank11 or an orchard.12 Similarly, a house let for residential purposes may not be used for trade purposes such as for a flour mill;13 but a beam, ridden by termite, can be removed and a new one substituted in its place,14 or premises let out for running of a repair shop can be used by the lessee temporarily for carrying on sale of televisions along with the repair business.15 (7) Duty not to Erect Permanent Structures on the Property The lessee must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes.16 The word ‘permanent’ is used in opposition to ‘temporary’.17 What is a permanent structure is a question of fact; it depends upon the nature of the structure, and the intention with which it is erected.18 Whether the structure was permanent or not can be judged from the intention of the party who put up the structure, as may be gathered from the mode and degree of annexation, and from the fact whether it could be removed without causing irreparable damage to the demised premises,19 dimensions of the structure, the purpose of erecting it, the nature of the materials used in it and its durability.20 A kitchen constructed with brick walls and tiled roofs, with unplastered walls is a permanent construction,21 but not when it can be removed easily.22 Similarly, where the kitchen and store spaces with the shade on its roof existed from the commencement of tenancy and only the worn-out tin shades were replaced by cement concrete slabs, it was held that the tenant had neither extended nor altered the premises,23 but where the tenant was a government school and it had Page 33 of 79

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constructed new rooms after demolishing old rooms without the permission of the landlord, this breach would be sufficient for their eviction.24 A tenant of agricultural holding may not erect a building not connected with agricultural operations,25 but affixation of a collapsible gate at the entrance of the tenanted premises is not erection of a permanent structure.26 (8) Duty to Re-transfer the Possession of Property on the Determination of Tenancy On the determination of the lease, the lessee is bound to put the lessor into possession of the property.27 Where the period of the lease is fixed, the lessee must put the lessor in possession of the property on its expiry, notwithstanding the absence of a specific term to that effect.28 In case of more than one lessor, if there is delivery of possession to one, it means delivery to all.29 Similarly, if one of two joint lessee fails to restore vacant possession to the lessor, both will be liable30 unless the other has not assented to the holding over. Where the lessee does not hand over the possession the landlord can file for damages or claim mesne profits and damages in tort for tresspass,31 or impose penalty at the rate of double the value of the premises,32 or can throw the lessee out and take possession himself.33 Possession so taken cannot be termed either illegal or unlawful.34 Damages can be awarded at market rate,35 and a claim for damages will include premium received from a sub-tenant36 and the cost of evicting a sub-tenant.37 If the landlord acquiesces in the act of the tenant, although he had not restored the possession, the tenancy does not subsist.38 The liability of the tenant is subject to a contract to the contrary,39 and the burden of proving such a conract is on him.40 RIGHTS OF LESSOR’S TRANSFEREE

Section 109. Rights of lessor’s transferee.— If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

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disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased.

GENERAL PRINCIPLE As the owner of the property, what the lessor conveys to the lessee is the right to possess and enjoy the property, but he retains the ownership of the property with him. This ownership also carries with it, a right to sell the property. Thus after granting a lease, the lessor can sell or transfer his remaining interest in the property. In such cases the transferee steps into the shoes of the lessor and is subject to the same rights and liabilities with respect to the property as well as the lessee that the lessor was subject to. These entitlements are subject to a contract to the contrary.41 Upon such transfer, the transferee takes the benefits and the burden42 of the lessor’s covenants, and can enforce both the covenants, as well as conditions43 such as recovery of rent or giving a notice to quit,44 or filing a suit for eviction.45 The lessee is liable to the assignee for rent even though he, after the assignment, makes an invalid surrender of the lease to the original lessor.46 Where the tenant pays the rent to the landlord before such assignment he is not required to pay it all over again to the transferee landlord.47 Where in a deed by which right, title and interest in the property in dispute are released in favour of one of the coowners, but without any assignment of rent, the assignee is not entitled to rent before assignment.48 The rights of a transferee are also available to a successor of the lessor,49 but not where the ground of eviction set up by the landlord is bonafide personal requirement of the leased property, more so when the successor had his own residence.50 Transferee of a Part of the Leased Property A transferee of a part of the leased property acquires all the rights of the lessor in respect of that part as if that part alone had comprised the lease, and a new relationship is created between the transferee and the lessee.51 The transferee is entitled to evict the tenant from that part52 which is transferred to him, not only when the lease has been determined before the transfer, but also where it had been determined after the transfer.53 If two joint lessors effect partition, one of them can enforce a forefeiture for non-payment of the rent of his moiety.54 The right of the joint lessor are possessed by each of them separately and individually.55 A usufructuary mortgagee is an assignee of part of the reversion, and can sue to recover all the rents and give notice to quit determining a periodical lease56 and after the transfer of the reversion by usufructuary mortgage, the lessor-mortgagor cannot accept a surrender of the lease.57 A lessee for a term is assignee of part of the reversion, and can give notice to quit to a monthly tenant of the original lessor.58 The tenancy can be split and the purchaser becomes the landlord with respect to the premises he gets while the transferee continues to be the landlord with respect to the premises retained by him.59 In case the transfer is to two brothers jointly and one of them dies, the surviving brother being a joint transferee is alone to be treated as the lessor.60 Despite the transfer, the rights to terminate the lease and to Page 35 of 79

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enforce the right of reversion can vest in the lessor if there is an agreement to that effect between the transferor and the transferee.61 The transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, he shall not be liable to pay such rent over again to the transferee.62 The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased. DURATION OF LEASES

Section 110. Exclusion of day on which term commences.— Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease. Duration of lease for a year.— Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences. Option to determine lease.— Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

GENERAL PRINCIPLE This section lays down the rule for computation of the period of lease. It says that where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.63 Duration of Lease for a Year If the time so limited is a year or a number of years, the lease shall last during the whole anniversary of the day from which such time commences. An express contract to the contrary will negate the application of these rules and the lease may provide as to when it

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will determine.64 The duration of lease cannot be determined unless the date of commencement is taken into consideration.65 If no date of commencement is named or no date is fixed, the lease begins from the date of execution66 in the former and on the first day of the month in which it was executed in the latter case,67 with the date of giving notice to be included in computing the period of notice.68 Where, after the expiry of a tenancy of four years a monthly tenancy was terminated on the midnight of the last day of the month by a notice to quit, the termination is valid.69 Option to Determine Lease If the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.70 DETERMINATION OF LEASE

Section 111. Determination of lease.— A lease of immoveable property determines— (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event—by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; Page 37 of 79

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(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Illustration to clause (f) A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon. GENERAL PRINCIPLE The law lays down eight different ways in which lease is determined, which is exhaustive.71 (1) Efflux of Time A lease of immovable property comes to an end when the time for which it was made expires. This is called determination by efflux of time,72 and such a lease for a term requires no notice to quit at the end of the term, or any other formality.73 A lease is a transfer of an estate and it does not terminate with the death of the original lessee, but survives during the remainder of the term of his heirs and representatives, but a grant made to the lessee for an indefinite period enures for his lifetime and passes no interest to his heirs unless there are words indicating a hereditary interest. Similarly, a lease whereby the lessee is given the power of holding the land as he pleases or where the term of the lease gives an option to the lessee to continue in possession as long as he pays, rent enures during the lifetime of the lessee,74 and is determined on his death. A lease for a period of less than one year is for an indefinite period and, as such, cannot expire by efflux of time.75 The lessee cannot dispute the title of the lessor as a ground for refusing to give up possession at the expiry of the lease,76 and such an estoppel continues even after the termination of the tenancy.77 The estoppel extends to the assignee of the lessee,78 and to any person who has come in by collusion with the lessee.79 The estoppel applies only to the landlord who has let the tenant in.80 Covenant for Renewal A covenant for renewal does not extend the tenure or term of the lease automatically, but entitles the lessee to obtain a fresh lease in accordance with law.81 Its conferment to a further term is immediate, runs with the land, is exercisable by the lessee unilaterally or by the assignees of the lessee, and binds the assignees of the lessor.82 The period afterexercise of renewal is to be treated as part of the period of the original registered deed.83 A lessee can, however, be estopped from exercising his right of renewal by his own conduct.84 A lease for five years giving a covenant of renewal to the lessee at his Page 38 of 79

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option85 or allowing him to remain at his wish till a new arrangement,86 is a valid covenant for renewal. The lessee can give a notice of his intention to take a renewal before the expiry of the term, and may lose the right by not applying within the specified time,87 or by failure to give notice in time, except under special circumstances.88 However, if the lessee fails to exercise the option after receiving a notice from the lessor to that effect he will lose the right89 and a tenant holding over becomes an annual or monthly tenant, as the case may be.90 Where no notice of the exercise of the option was required to be given, an option may be exercised by continuing in possession and payment of rent after the expiry of the lease. A lessor may grant a fresh lease and if he creates that impression by his conduct spread over a long time, it results in abandonment of his right of re-entry.91 The covenant of renewal must be definite as to the term,92 and can be subject to conditions precedent that are usually very strictly construed93 and will be refused if the stipulated conditions are not fulfilled. A conditional renewal cannot be obtained in piece-meal.94 A covenant for renewal obtained fraudulently is void, and will not operate as estoppel against the lessor.95 (2) The Happening of a Future Event A lease of immovable property determines where such time is limited conditionally on the happening of some event, by the happening of such event.96 (3) Termination of the Interest or Power of the Lessor A lease of immovable property is determined where the interest of the lessor in the property terminates on, or his power to dispose off the same extends only to, the happening of any event by the happening of such event. For instance, a lease by a tenant for life97 or by a person having a life estate in the property, determines at his death. Similarly, a lease by a usufructuary mortgagee can be determined by the mortgagor exercising his right to determine on redemption.1 (4) Merger A lease of immovable property is determined in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person, in the same right.2 There has to be a complete fusion of the rights in favour of one person. For instance, a merger of interest takes place and the tenancy comes to an end with the lessor executing a sale deed in favour of the lessee.3 A mere agreement to sell4 does not indicate merger. Even after executing a sale deed, if the purchase money is not paid, the agreement stands cancelled and there is no merger.5 A person can be a tenant as well as mortgagee at the same time,6 but there can be no merger of lease and mortgage as there is no complete fusion of all the rights of ownership in one person.7 The decree for redemption can redeem the mortgage but does not determine the lease.8 The mortgage of the house by the landlord in favour of the tenant by a mortgage-deed, results in implied Page 39 of 79

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surrender of tenancy rights.9 There would be no merger where, as between the two transfers either a gap of time occurs,10 or another estate intervenes,11 or where the lessee purchases a part12 and not the whole13 of the property,14 or where the estate vests in the same person but not in the same right. Where a property is given on lease and a part of it is sold to the tenant and the remaining to another person, there is no merger as the sale to the tenant is not with respect to the whole of the property,15 but if one of the joint tenants purchases the whole of the property leased to them and the other tenant neither pays rent nor claims tenancy rights, joint tenancy would merge into right of ownership16. If a co-lessees wife purchases the property that was leased to her along with her husband, there would be no determination of tenancy of the husband by the principle of merger and the husband would be a tenant in the property now owned by his wife.17 Where, the sub-tenant acquired the entire interest of the owner in the whole of the property that was the subject matter of the lease, the Apex Court held that the tenancy of the sub-tenant merged into ownership.18 Consequently the estate of the sub-tenant enlarged into that of the full owner19 and the tenancy came to an end. The court observed: Ownership of the property which is the subject matter of tenancy is certainly a larger estate than the tenancy itself and naturally larger than the sub-tenancy. If the sub-tenant acquires the entire interest of the owner in the whole of the estate forming the subject matter of the sub-tenancy, the sub-tenancy merges into ownership and the estate of the sub-tenant stands enlarged into that of a full owner. The sub-tenant cannot be the owner and the sub-tenant both at the same time. Of course, the situation would have been different if the sub-tenant would not have acquire d the entire estate of the owner or the ownership interest in the entire estate forming the subject matter of sub-lease. However, if the sub-tenant acquires full ownership in the entire premises the right of reversion vesting in the erstwhile owners would vest fully and entirely in the sub-tenant.

(5) Express Surrender An express surrender20 of the lease brings it to an end before the stipulated time.21 Surrender can be only with respect to the whole of the interest and not a part of it.22 A deed of surrender does not require a specific form23 or registration.24 Delivery of possession is not necessary where the parties surrender the tenancy and substitute it by a fresh arrangement.25 It is open to the lessor to not accept surrender or act on it.26 If there is more than one lessee, then one out of several lessees can surrender in favour of the lessor,27 but the lessee cannot surrender to a lessor, unless the term is vested in him;28 or if the lessor has sold29 or mortgaged30 the reversion or if the lease is for a fixed term. (6) Implied Surrender A lease of immovable property can also come to end by an implied surrender.31 Acceptance of a new lease taking effect during the continuance of the existing lease32 or when the lessee accepts an offer inconsistent with the lease, e.g., by remaining in possession as a servant, or when the lessee takes a usufructuary mortgage of the demised premises,33 operates as a surrender of the former. However, where the enjoyment under the former is not compatible with that of the subsequent lease,34 is a mere alteration of Page 40 of 79

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the former relationship,35 is a mere increase or reduction of rent,36 where the new lease is not operative and proves to be void37 such as a perpetual lease granted in excess of powers, it will not result in surrender of an earlier lease.38 Where the lessor grants a new lease to a third person with the consent of the lessee of the existing lease who delivers the possession to such person or where the lessee directs his sub-tenant to pay the rent directly to a lessor, there is an implied surrender.39 Where the lessee becomes the mortgagee, his rights as a lessee remain in abeyance so that the larger rights as a mortgagee come into effect; his rights as lessee are restored when the mortgagee’s right comes to an end.40 There can be implied surrender by conduct by not asserting the tenancy rights and not paying rent after some of the co-sharers expressly surrender their rights,41 but the mere fact that co-tenants do not defend their rights by paying rent to the landlord and obtaining rent receipts in their own names prior to the filing of written statement, cannot amount to implied surrender.42 Surrender can also be implied from the consent of the parties or from relinquishment of possession by the lessee, and taking over possession by the lessor.43 Where there is more than one lessor, the surrender to be operative must be to all.44 A lessee of one co-lessor cannot make a valid surrender to another co-lessor.45 A surrender by one of the several joint lessee’s is valid only as to his share.46 One of the two joint lessees, cannot, in the absence of authority, surrender the rights held jointly.47 Where the parties enter into a compendious lease covering both the portions which were previously leased out, the two earlier leases are surrendered.48 Relinquishment of possession operates as an implied surrender when after a dispute as to rent, the lessee returns the keys to the lessor who accepts them;49 or even if after initial refusal to accept the keys his conduct shows that he has exercised his option to accept the surrender.50 Abandonment of possession by the lessee accompanied with acceptance of surrender on the part of the landlord will suffice.51 When tenancy is surrendered and substituted by a fresh agreement, then, even if there is no physical handing over of the possession it is of no consequence.52 If the lessor re-enters in exercise of a right of forfeiture, the lessee’s consent to such re-entry does not constitute surrender.53 (7) Forfeiture A lease of immovable property is determined by forfeiture i.e.; (i) In case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (ii) In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (iii)The lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event.

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In any of these cases the lessor or his transferee should give notice in writing to the lessee of his intention to determine the lease. Forfeiture is not complete unless and until the lessor gives a notice to the lessee that he wishes to exercise his option to determine the lease.54 A breach of condition only exposes the lessee to the risk of forfeiting his lease and gives a right to the lessor, if he so elects, to determine the lease.55 There is no automatic forfeiture. Thus, in such cases, the lease is voidable at the option of the lessor.56 BREACH OF A CONDITION The breach of a condition does not involve forfeiture unless the lease expressly so provides.57 If the covenant to pay rent is express and a proviso for re-entry is annexed, non-payment of rent may result in forfeiture.58 If the agreement contains a condition that on the happening of a particular event such as company going into liquidation,59 or the lessee failing to dwell on the land60 the lease will be forfeited, it will be so forfeited if that condition happens. Sub-letting by itself will not operate as forfeiture if not prohibited by the contract of tenancy.61 However, a covenant against sub-letting the premises works as forfeiture where the entire interest is transferred by a tenant,62 but not when sub-letting is of a part of the premises.63 Similarly, a covenant against assignment is not broken by the sale of a part,64 a mortgage,65 or by execution of an unregistered contract for sale by the lessee but subject to the sanction of the lessor.66 Similarly, creation of a sub-lease is not a breach of condition, even though the sub-lease is for the whole of the unexpired residue.67 A mere change of user will not ordinarily result in forfeiture of lease.68 Denial of the Landlord’s Title (Disclaimer) Denial of the landlord’s title is a ground for forfeiture as a man cannot approbate and reprobate.69 No notice terminating the tenancy is required where the lessee in the written statement in a suit for eviction, denies the relationship of landlord and tenant between the parties.70 Actions of the tenant like selling the leased house to a third person, describing himself as the owner,71 denial of the title of the landlord,72 or that of his heirs,73 setting up a plea of adverse possession,74 claiming title himself,75 or of another landlord,76 are sufficient to prove disclaimer. But mere claiming of a higher right by the lessee,77 a willingness of the tenant to pay to whosoever is the rightful owner,78 a bona fide denial with the object of having such title established before a court of law so as to protect himself,79 an incidental statement in a sale deed referring to other property,80 describing himself as the owner in proceedings under the Land Acquisition Act, 189481 or wherehe claims a permanent tenancy, there is no disclaimer.82 A disclaimer by a lessee who has assigned his term will not affect the interest of the assignee.83 The disclaimer or repudiation must be clear and unequivocal, whether in pleadings or in any other document and must be to the knowledge of the landlord.84 Plea of disclaimer not raised in the plaint cannot be entertained85 unless the parties have chosen to go on trial on an issue of disclaimer framed at the trial.86

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Disclaimer Must be Before the Filing of the Suit Disclaimer to operate as a forfeiture of lease should be before the suit, pleading an eviction on its basis, is filed.87 Where disclaimer is either in the written statement or after the filing of the suit, it will not support a forfeiture or dispense with the necessity for notice to quit in the case of a yearly tenancy.88 But a disclaimer in a previous suit operates as a disclaimer so as to support the subsequent suit for ejectment.89 Conversely a disclaimer in current suit can be used in a subsequent suit.90 To avoid multiplicity of suits or filing a subsequent suit to plead disclaimer, the plaint can be amended so as to incorporate the ground of denial of title for the relief on that ground.91 Notice in Writing Even if the lease contains a clause to the contrary,92 a notice in writing manifesting a clear intention,93 delivered or served by registered post94 is an essential condition of forfeiture taking effect in law.95 A breach of a condition makes the lease voidable and the lessor, by giving notice, exercises his option to determine the lease.96 If the lessors are tenants in common, the notice has to be by or on behalf of all.97 Failure to give the notice will not terminate the lease. However, no separate notice is necessary if a notice under s. 111(h) has already been given.98 Notice to Quit A lease of immovable property is determined by on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.1 No notice is necessary to determine a tenancy for a fixed term,2 i.e., that determines by efflux of time3 or where the tenancy is at sufferance.4 A tenancy at will is determinable at the will of either party, by the tenant giving up possession, or by a demand for possession by the landlord,5 or by the death of either party.6 WAIVER OF FORFEITURE

Section 112. Waiver of forfeiture.— A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting: Provided that the lessor is aware that the forfeiture has been incurred:

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Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

GENERAL PRINCIPLE A forfeiture under s. 111, clause (g), is waived by acceptance of rent which has become due since the forfeiture,7 or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting.8 Acceptance of rent due after a breach constitutes a waiver even if accepted ‘under protest’9 or accepted as compensation for use and occupation;10 or if it is credited to a suspense account;11 but receipt of rent due before the breach does not operate as a waiver,12 After a breach if the notice to quit is given at a future day it amounts to a waiver, because the giving of the notice recognises the continuance of the tenancy up to that day.13 Where the lessor, by his conduct, shows that he intends to treat the lease as subsisting, it will amount to a waiver such as filing a suit for rent,14 or making an alternative prayer inconsistent with the determination of the lease15 but where the lessor describes the lessee as a ‘tenure’,16 or fails to communicate the waiver to the tenant, it would not amount to a waiver.17 The lessor must be aware that the forfeiture has been incurred.18 Where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver. Acceptance of rent after a suit for eviction19 or a prayer for rent or mesne profits in a suit for ejectment on the ground of forfeiture, will not necessarily operate as a waiver. However, receipt of rent accruing subsequent to suit would amount to a waiver.20 Once he has made the election either by express words or unequivocal act, the election is irrevocable.21 Waiver of past breaches does not preclude the lessor from enforcing forfeiture when the same or another condition is subsequently broken.22 The mere fact that the lessor does not take action for getting an unauthorised construction made by the lessee removed does not stop the lessor from suing for ejectment.23 WAIVER OF NOTICE TO QUIT

Section 113. Waiver of notice to quit.— A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.

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Illustrations (a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived. (b) A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.. GENERAL PRINCIPLE A notice to quit given under s. 111, cl (h), can be waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.24 Waiver is a contractual agreement not to assert a right.25 On the expiry of the first notice to quit, a second notice, if given, should show that the lessee has remained in the property rightfully.26 A second notice amounts to a waiver of the first notice to quit, provided that there has been express or implied consent of the lessee to such waiver. Such consent can be implied from the payment of rent in respect of the period after the lease would have expired under the first notice.27 But the terms of the second notice may show that this was not the intention of the lessor, e.g., if the notice is merely a demand for possession. Thus, the very fact that the landlord gives a second notice does not necessarily imply waiver on his part of the first notice, as it might be possible that despite the second notice, there was no intention to waive the notice to quit.28 In order to constitute a waiver there must be an intention not only on the part of the lessor, but also the lessee to treat the lease as subsisting29 but that act must be an act on the part of the landlord or somebody acting on his behalf.30 So, in the case of a lease by joint lessors, an act of one cannot operate as a waiver as against the other.31 Where the tenant, even after the first notice to quit, tendered rent for the post notice period by money order to the landlord and continued in possession and thereafter, second notice was served on him by the landlord, there is waiver of the first notice by both the parties who treated the tenancy as continuing after the first notice.32 The consent of the lessee to treat the old tenancy as subsisting, constituting a new agreement, must be there.33 A plea of waiver based on facts must be pleaded in the written statement.34 After the determination of the tenancy by all the co-owners, a waiver to revive the tenancy can be done only by all the co-owners acting together and not by any one of them in isolation.35 Acceptance of Rent and Waiver Whether the act of the landlord in accepting of rent is one from which one can impute to the landlord the intention of creating a renewal of the tenancy or treating the tenancy as still subsisting, is a question of fact.36 Mere acceptance of rent by the lessor on the expiry of the lease would not amount to consent for continuance of lease.37 There must be some intention of waiver. When the landlord is actively prosecuting the suit for eviction filed Page 45 of 79

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by him against the tenant, there is no waiver.38 A production of rent receipt after the notice to quit is given,39 or the acceptance of rent by mistake40 or for the period before the expiry of the notice41 or acceptance under protest as compensation and not as rent,42 or acceptance of the ‘rent’ due to the statutory tenancies,43 is not a waiver44 as the lessee is allowed to continue in possession notwithstanding the termination of the contractual tenancy by notice.45 In order that acceptance of rent may amount to a waiver, it must be for a period after the notice,46 as a result of which the lease subsists.47 Acceptance of Rent after Institution of Eviction Proceedings If a landlord accepts the rent after filing a suit for ejectment on determination of the tenancy by serving a notice on the tenant, this acceptance of rent would not indicate a waiver of his right.48 He can even include a claim of rent subsequent to the expiry of notice in the suit itself, as a demand does not show consent.49 RELIEF AGAINST FORFEITURE FOR THE NON-PAYMENT OF RENT

Section 114. Relief against forfeiture for non-payment of rent.— Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within 15 days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

GENERAL PRINCIPLE The lease may contain a clause for forfeiture in cases of non-payment of rent. This section provides a remedy to the tenant to pay the rent along with the interest and his full costs of the suit in the court in order to avoid eviction. The courts regard the covenant of forfeiture for non-payment of rent as merely a clause for securing payment of rent, and unless the tenant has by his conduct, disentitled himself to equitable relief, courts grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit.50 The provision applies only when a lease determines by forfeiture51 due to non-payment of rent only;52 and not for a simple suit for evicting a monthly tenant after service of notice to quit.53 For claiming forfeiture on grounds of non-payment of rent, lessor’s entitlement to re-enter on breach of this condition, must be shown.54 Thus, where the lease provides that on failure to pay three Page 46 of 79

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installments of rent, the lease should be null and void, relief can be given under this rule,55 but the rule does not apply to a tenancy from month to month.56 The tenant may get the benefit of this provision even if he is unable to get the protection of the Rent Act.57 But where the relief against forfeiture is available to a lessee under a statute, he cannot avail a double protection by resorting to this provision.58 Rent in Arrears and Conditions of Relief Unpaid rent by the tenant due to the lessor is referred to as ‘rent in arrears’. If the tenant pays the entire unpaid rent including time barred rents59 upto the date when the application for ejectment is heard,60 then relief from forfeiture is allowed.61 The lessee must actually pay the complete rent in arrears with interest and full costs of the lessor’s suit62 or give security for payment within 15 days. Mere readiness to pay or a conditional offer63 is not sufficient. The relief is discretionary and will be refused if the lessee makes no tender in the lower court and sets up a false plea of discharge,64 raises frivolous or vexatious defences,65 withholds rent for a year and a half without justification,66 or pays only when the landlord moves for striking off his defence67 or if the lessee is a habitual68 persistent69 or a chronic defaulter,70 but, if he commits default and on71 and off, relief may be granted. Though the rule specifies tender of amount at the time of hearing of suit, a tender before the hearing or a deposit of standard rent with the Rent Controller is taken into consideration.72 Discretion of the Court It is the court’s discretion whether to grant the relief.73 It can be granted by an appellate court during appeal,74 but cannot be granted at the stage of second appeal for the first time.75 This discretionary power when exercised by the court cannot be reversed in revision, unless its exercise is shown to be contrary to some principle of law.76 The order being discretionary, the Supreme Court will not ordinarily interfere with the exercise of the discretion.77 RELIEF AGAINST FORFEITURE IN CERTAIN OTHER CASES

Section 114A. Relief against forfeiture in certain other cases.— Where a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing— (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach, Page 47 of 79

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and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.

GENERAL PRINCIPLE Section 114A protects the lessee against forfeiture in certain other cases. If the breach is capable of remedy, the notice should require the lessee to remedy the breach, and if the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy, he will not be entitled to such protection.78 Thus, where the lease provides for forfeiture and re-entry in case of change of user but also provides that re-entry and forfeiture will not be ordered if the breach is remedied withinreasonable time, an order of re-entry will not be sustained if misuse is remedied within reasonable time.79 The provisions for relief against forfeiture in respect of express terms or conditions cannot be invoked for breach of an implied condition,80 or where land is acquired under the Land Acquisition Act, 1894 for the purpose of the lessee company81 or where the case is governed by an Act relating to rent control and eviction of tenants.82 This rule does not apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent. EFFECT OF SURRENDER AND FORFEITURE ON UNDER-LEASES

Section 115. Effect of surrender and forfeiture on under-leases.— The surrender, express or implied, of a lease of immoveable property does not prejudice an underlease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor. The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is Page 48 of 79

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granted under section 114.

GENERAL PRINCIPLE Surrender of the tenancy is a way of bringing the tenancy to an end before the expiry of its term. By surrendering the premises the tenant relinquishes the enjoyment of the property and the possession is delivered back to the landlord. This section protects the rights of a sub-lessee to enjoy the property under an under lease or a derivative lease granted to him by the principle lessee. If the terms of the lease granted in favour of the lessee by the landlord and the one granted by this lessee in favour of the sub-lessee are more or less the same, except the rent, then even after a surrender of the tenancy by the lessee, the sub-lease in favour of the sublessee will continue. The principle underlying this section is that a lessee cannot derogate from his own grant, and by surrender to the lessor, destroy the rights that he has created in the sub-lessee,83 but where the surrender is made for the purpose of obtaining a new lease, the sub-lessee continues to hold under the lessee.84 However, forfeiture of a lease also destroys the rights of the sub-lessee, and in a suit for the eviction of the lessee, there is no need to implead or even to inform the sub-lessee,85 and the decree in ejectment of the lessee can be executed against the sub-lessee even though he was not a party.86 The same rule applies to mortgages created by the lessee; but if by terms of the lease, the lessee is authorised to mortgage his interest, the lease should not be extinguished without giving the mortgagee an opportunity to prevent the extinction.87 A decree for ejectment against a lessee in a suit in which the sub-lessee was a party, extinguishes the sub-lessee.88 EFFECT OF HOLDING OVER

Section 116. Effect of holding over.— If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.

Illustrations

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(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs 100. The five years expire, but C continues in possession of the house and pays the rent to A. C’s lease is renewed from month to month. (b) A lets a farm to B for the life of C. C dies, but B continues in possession with A’s assent. B’s lease is renewed from year to year. GENERAL PRINCIPLE After the determination of the tenancy, the tenant should leave the premises and hand over the possession to the landlord. If he continues in possession after the determination of the tenancy, it can be with the consent of the landlord, or without his consent. However, even if he continues without the consent of the landlord he is not a trespasser, as his induction in the premises was legal. Holding over means a continuance in possession of the property by the tenant after the determination of the tenancy and a tenant continuing in possession after the determination of the lease with the consent of the landlord is a ‘tenant holding over’.1 A tenant who, after termination of the lease, continues in possession without the landlord’s consent is a tenant at sufferance,2 and his possession is also juridical, and he can get an injunction against eviction by the landlord otherwise than in due course of law.3 A person in illegal occupation of the premesis without the consent of the landlord is a trespasser4 and cannot avail the benefits of this provision.5 Tenancy of holding over is a creature of a bilateral, consensual act between the erstwhile landlord and erstwhile tenant,6 and does not come into existence by a mere unilateral intendment or declaration of one of the parties.7 On one side, there should be an offer of taking a new lease, evidenced by the lessee remaining in possession of the demised premises after his term is over; and on the other side there must be a definite consent of the landlord to the continuance of possession by the tenant, expressed by the acceptance of rent or otherwise.8 A tenant does not have a right to continue in possession after the termination of his tenancy but his possession is juridical,9 and his occupation is not unauthorised or wrongful till a decree for eviction is made.10 Such a tenant cannot be dispossessed except by authority of law,11 even where the lessor is the government.12 The principles of holding over come into play only after determination of the lease and not before, or where the occupation of tenancy continues under the registered lease after exercise of the option.13 Similarly, where a tenant remained in possession after the expiry of the date on which he was required to deliver possession by the Rent Controller, he cannot take advantage of the section even if he had paid rent for such period.14 A tenant holding over as a tenant from month to month is entitled to notice to quit of 15 days.15 Consent of the Landlord Mere continuance in possession after determination of the term of the lease does not Page 50 of 79

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create a tenancy by holding over.16 The lease must also prove that the lessor accepted rent or otherwise assented to the lessee’s continuance in possession.17 The consent of the lessor may be inferred from the acceptance of rent,18 preceded by an offer from the tenant for renewal19 or payment of enhanced rent demanded by the landlord20 or a suit for rent,21 but mere payment and acceptance of rent by themselves cannot be taken as evidence of a new lease arrangement in cases of continuation of statutory tenancy and there must be independent evidence of assent by the landlord.22 Similarly, where the lessor accepts an amount equivalent to rent23 especially so in the case of a statutory tenant,24 accepts rent when it was a conditional renewal of enhanced rent and the tenant fails to fulfil the condition,25 accepts rent long before the expiry of the lease, or when payment is made at a time where there was no question of lessor assenting to the lessee’s continuing in possession and neither party treats the payment as implying such assent,26 or acceptance of rent after granting a specific time to tenant for vacating to suit his convenience27 or acceptance pending appeal in an eviction suit,28 will not indicate holding over. Otherwise Assented To The consent of the landlord will be presumed in case where he grants an invalid lease,29 or permits the tenant to continue for 11 years;30 but consent cannot be presumed where he gives a notice to quit to the tenant,31 when there is a mere delay in taking steps to evict the tenant,32 when he gives some time to an ex-employee to vacate the quarters for the convenience of the employee.33 Deposit of Rent by a Tenant to a Person other than the Landlord In case the lessee obtains rent receipts in collusion from a person who had no authority to realise rent on behalf of the landlord after the expiry of the period of the lease,34 or where the tenant deliberately deposits the rent in a bank, unilaterally styling himself as a tenant under a particular person, or tenders cheques kept in envelops,35 the relationship of tenant holding over cannot be created.36 As the basis of the section is an implied contract, the mere acceptance of the rent by a particular officer will not suffice where the local authority can only enter into a contract after following certain formalities.37 Holding over by the Heirs of the Lessee The new tenancy must be created by the consent of both sides and as there is no privity of contract between the lessor and the heirs of the lessee or an assignee of a lessee38 or an under-lessee,39 the heirs continuing in possession after the expiry of the lease, cannot become tenants by holding over, and, are trespassers.40 There may be an agreement to the contrary between the parties after the determination of the original lease settling the terms of the holding over.41

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EXEMPTION OF LEASES FOR AGRICULTURAL PURPOSES

Section 117. Exemption of leases for agricultural purposes.— None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication.

GENERAL PRINCIPLE The rules contained herein do not apply to leases for agricultural purpose and therefore the settled customary usages are not disturbed even after the passing of the TP Act. The provisions of the Act relating to leases apply to agricultural leases only when the state government by notification published in the Official Gazette declares all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication. An agricultural lease may be made orally.42 If made in writing, an agricultural lease from year to year or for any term exceeding a year or reserving a yearly rent would require registration.43 A valid lease of agricultural land can be made by a registered deed, though it may not be accompanied by delivery of possession.44 Agricultural Purposes Agricultural purposes include tillage of soil in its widest sense, including not only field cultivation, but also garden cultivation for the purpose of procuring vegetables and fruit as food for man or beast; other products for human consumption by way of luxury if not an article of diet. Illustrations of leases held for agricultural purposes: (i) A betel garden;45 (ii) Rearing of tea plants;46 (iii)Casuarinas plantation;47 (iv)Horticulture;48 Page 52 of 79

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(v) Cultivation of indigo;49 (vi)The building of an indigo factory on a portion of an indigo plantation;50 (vii)

A lease of a tank with a considerable area of pasture land;51

(viii) A lease of land for grazing;52 (ix)A lease of a village for the purpose of bringing its lands under cultivation;53 (x) Lease for jungle clearance to make the land arable.54 Following are the examples of leases that are not for agricultural purposes: (i) A lease merely for the purpose of gathering fruit from trees on the land;55 (ii) A lease of residential land where on a portion, fruit trees are planted;56 (iii)A lease for the purpose of the tenant realising the rent from cultivators;57 (iv)A lease executed with the object of making an arrangement for collecting rents and not with the object of cultivating;58 (v) A lease of land to an agriculturist for a shop;59 (vi)A lease for a non-agricultural purpose;60 (vii)

A putni lease;61

(viii) A sub-lease of homestead land for residential purposes;62 (ix)A lease of a tank used for the preservation and rearing of fish.

1.

Byramjee Jeejeebhoy (P) Ltd. v. State of Maharashtra, AIR 1965 SC 590 [LNIND 1963 SC 91].

2.

Mineral Dev Pvt. Ltd. v. Union of India, AIR 1960 SC 1373 [LNIND 1960 SC 378].

3.

Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn., (1992) Supp I SCC 5, 12.

4.

Anwar Ali v. Jamini, AIR 1940 Cal 89 [LNIND 1939 CAL 1]; K Venkaya v. T. Venkayya, AIR 1957 AP 619 [LNIND 1955 AP 202]; Jacob v. Subromonia, AIR 1960 Ker 212 [LNIND 1959 KER 322]; Kandaswami v. Ramaswami, AIR 1919 Mad 168; Ramachandra v. Subramania, AIR 1951 Bom 127 [LNIND 1951 BOM 10].

5.

Rikhy v. New Delhi Municipality, AIR 1962 SC 554 [LNIND 1961 SC 299].

6.

Ragoonathdas v. Morarji, (1892) 16 Bom 568; Kandasami v. Ramaswami, (1919) 42 Mad 203; Anwarali v. Jamini Lal, AIR 1940 Cal 89 [LNIND 1939 CAL 1]; K. Punnen v. P.K. Vasudev, AIR 1956 Tr & Coch 1 (FB)

7.

Tola Ram v. Bombay, AIR 1954 SC 158 [LNIND 1953 SC 117].

8.

R. Kemparaj v. Barton Son, AIR 1970 SC 1872 [LNIND 1969 SC 302].

9.

Mannalal v. Ishwariprosad, AIR 1966 Cal 446.

10. State of West Bengal v. Kailash Chandra Kapur, AIR 1997 SC 1348 [LNIND 1996 SC 2022]. 11. Donkon Gouda v. Revanshiddappa, AIR 1943 Bom 148; Narayana v. Kashiraya, AIR 1961 Mys 35. 12. Roop Kumar v. Mahan Thedani, 2003 (1) RCR (Rent) 615 (SC) 13. S. Rajdev Singh v. Punchip Associates, AIR 2008 Del 56 [LNIND 2007 DEL 661].

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(IN) Poonam Pradhan Saxena : Property Law 14. Ladies Hosiery and Underwear Ltd. v. Porker, (1929) All ER Rep 667. 15. Ashutosh v. Chandi Charan, AIR 1927 Cal 179; Jagadish Chandra v. Bisweswari, 41 IC 227; see also Higgins v. Nobin Chunder, (1907) 11 Cal WN 809 and Vaman Shripad v. Maki, (1880) ILR 4 Bom 424. 16. Venkatachellam v. Audian, (1881) ILR 3 Mad 358; Virammal v. Rungayyangar, (1882) ILR 4 Mad 381; Utility Articles Manufacturing Co. v. Raja Bahadur Motilal Mills, AIR 1943 Bom 306; Usharani Debi v. The Research Industries Ltd., (1945) 50 Cal WN 461; Ganesdas Ramgopal v. Jamuna, (1945) 24 Pat 449. 17. Janaki Nath v. Dinanath, AIR 1931 PC 207; Income Tax Commr v. Visheshwar, AIR 1940 Pat 24; Bara Lal v. Bhaju Mian, AIR 1955 Pat 499. 18. Bijoy Gopal Mukherji v. Prafala Chandra Ghose, AIR 1953 SC 153 [LNIND 1953 SC 10]; Saroda Prosad v. Umasankar, AIR 1977 Cal 168; Bhabataran Pohari v. Traliakyanath Bag, AIR 1932 Cal 764; Priya Nath v. Surendra Nath, AIR 1922 Cal 511; Suraj Bhan v. Hafiz Abdul, AIR 1941 Lah 195. 19. Bavasaheb v. West Patent Co. Ltd., AIR 1954 Bom 257 [LNIND 1953 BOM 75]; Sinha BP v. Som Nath, AIR 1971 All 297; Bhupendra Chandra v. Harihar, (1920) 24 Cal WN 874; Krishendra Nath v. Kusum Kumari, AIR 1927 PC 20; Bhabani v. Suchitra, AIR 1930 Cal 270; Satya Charon Law v. Rai Mohan Sil Das, AIR 1932 Cal 436. 20. Syed Ali v. Manik Chandra, AIR 1924 Cal 156; Dinabandhu v. Gopinath, AIR 1948 Pat 12; Mahammad Muzaffaral Musavi v. Jabeda Khatun, AIR 1930 PC 103; Ismail Khan Mahomed v. Asmatulla Sareng, (1904) 8 Cal WN 297; William Grantu Robinson, (1907) 11 Cal WN 242; Kittu Hegadthi v. Channamma, (1907) ILR 30 Mad 528; Nilmtan Mandal v. Ismail Khan Mahomed, (1905) ILR 32 Cal 51; Shoroshi v. Bhagloo, (1920) 32 Cal LJ 85; Rammohanrai v. Somabhai, AIR 1950 Bom 161 [LNIND 1949 BOM 126]; Secretary of State v. Rajendra Prasad, AIR 1937 Pat 391; Raja Rameshwar Rao v. Govind Rao, AIR 1961 SC 1442 [LNIND 1961 SC 138]; Valia Raja v. Veeraraghava, AIR 1961 Ker 222 [LNIND 1960 KER 391](FB); Ram Lal Sahu v. Bibi Zofira, AIR 1941 Pat 228; Narayanbhal v. Davlata, (1891) ILR 15 Bom 647; see also Guru Din Sahu v. Badu, AIR 1937 Oudh 165; Uttar Pradesh Government v. Church Missionary Trust Association Ltd., AIR 1948 Oudh 54. 21. Bhagwan Prasad v. Balgobind, AIR 1933 Oudh 161; Income Tax Commr v. Visheshwar Singh, AIR 1940 Pat 24; Dinabandhu v. Gopinath, AIR 1948 Pat 12; Rani Bhuneshwari v. Secretary of State, AIR 1937 Pat 374; Forbes v. Ralli, AIR 1925 PC 146. 22. Hamidullah v. Abdullah, AIR 1972 SC 410; Secretary of State v. Lunchmeswar Singh, (1889) ILR 16 Cal 223; Seturatnam Aiyar v. Venkatachala Gounden, AIR 1920 PC 67; Chidambara Sivaprakasa v. Veerama Reddi, AIR 1922 PC 292; Nainapillai v. Ramanathan, AIR 1924 PC 65; Subramanya Chettiar v. Subramanya Mudaliar, AIR 1929 PC 156; Sidhanath v. Chiko, AIR 1921 Bom 454; Ponniah v. Deivanai, (1919) 36 Mad LJ 463; Nilratan Mandal v. Ismael Khan Mahomed, (1905) ILR 32 Cal 51; Rangasami v. Gnana, (1899) ILR 22 Mad 264; Ram Ranjan v. Ram Narain Singh, (1895) ILR 22 Cal 533, 542; Gopata v. Juvappa, AIR 1931 Mad 577 [LNIND 1930 MAD 119]; Hiralal v. Secretary of State, AIR 1931 Bom 436; Md Zayauddin v. Dargahan, (1939) ILR 18 Pat 571; Abdul Behari v. Kunj Behari Lal, AIR 1957 All 346 [LNIND 1957 ALL 31]; Kamal Kumar Dutta v. Nanda Lal Dule, AIR 1929 Cal 37; Debendra Nath v. Pashupati, AIR 1932 Cal 198. 23. Dhanna Mal v. Moti Sagar, AIR 1927 PC 102. 24. Syedjaleel Zame v. R. Venkata Murlidkar, AIR 1981 AP 328; Uttar Pradesh Government v. Church Missionary Trust Association, AIR 1948 Oudh 54. 25. Chittor Chegaiah v. Pedda Jeyangar Mutt, AIR 2010 SC 1278 [LNIND 2010 SC 209]. 26. Narayan Gosain v. The Collector Cuttack, AIR 1986 Ori 46 [LNIND 1985 ORI 63], 51; Ekambara Ayyat v. Meenatchi Ammal, (1904) ILR 27 Mad 401 (FB) 27. Life Insurance Corporation of India v. India Automobiles & Co., (1990) 4 SCC 286 [LNIND 1990 SC 959]. 28. A lease by tenants in common operates as a separate demise by each of his share, and a confirmation by the others and each tenant in common may by separate demise lease his own share only. But their lessees have not the unity of possession and are not tenants in common inter se, Manimohan Pat v. Gour Chandra Das, AIR 1934 Cal 71. 29. Mineral Development Ltd. v. Union of lndia, AIR 1960 SC 1373 [LNIND 1960 SC 378]; Camberwell & South London Building Society v. Holloway, (1879) 13 Chd 754, 759. 30. A lease by a minor is void even though executed only by the lessee who is a major, see Govinda Kurup v. Chowakkaram, AIR 1931 Mad 147. 31. Taj Din v. Abdul Rahim, AIR 1939 Lah 423. 32. Kunj Behari Lal v. Shivji Maharaj, AIR 1973 All 217 33. Pramila Bali Das v. Jogeshar, (1918) 3 Pat LJ 518; Govinda Karup v. Chowakkaram, AIR 1931 Mad 147. 34. Motilal v. Kartar Singh, AIR 1930 Lah 515. 35. Chittor Chegaiah v. Pedda Jeyangar Mutt, AIR 2010 SC 1278 [LNIND 2010 SC 209]. 36. General Manager, Railway, Madras v. Chintadripet Boys Higher Secondary School, AIR 1998 Mad 180 [LNIND 1997 MAD 480]

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(IN) Poonam Pradhan Saxena : Property Law 37. G. Sridharamurthi v. Hindustan Petroleum Corpn. Ltd., AIR 1991 Kant 249 [LNIND 1990 KANT 210]; see Esso (Acquisition of Undertakings in India) Act 1974, ss. 3, 4 and 5(1). 38. Narain Prasad Aggarwal v. State of Madhya Pradesh, AIR 2007 SC 2349 [LNIND 2007 SC 739]; Narender Bahadur v. Shankar Lal, AIR 1980 SC 575 [LNIND 1980 SC 33]. 39. Storge v. Hacked, (1965) 3 All ER 506 (CA) 40. Carlisle Cafe Co. v. Muse, (1867) 67 LJ Ch 53; Hope Bros Ltd. v. Cowan, (1913) 2 Ch 312; Goldfoot v. Walch, (1914) 1 Ch 213. 41. Ram Gopal v. Nurumuddin, (1893) ILR 20 Cal 446. 42. R. v. Nicholson, (1810) 12 East 330; Peter v. Kendall, (1827) 6 B & C 703. 43. Sikandar v. Bahadur, (1905) ILR 27 All 462; Qudratullah v. Mun Board, Bareilly, AIR 1974 SC 396 [LNIND 1973 SC 374]. 44. Tarakeshwar Sio Thakur Jiu v. D.D. Dey, AIR 1979 SC 1669 [LNIND 1979 SC 92]. 45. Annick Chaymotti Devyani v. Prem Mohini Mehra, 2003(1) RCR (Rent) 709 Del. 46. Bhagyashree Combines v. Dist Magistrate, Bellary, AIR 1998 Kant 328 [LNIND 1998 KANT 180]. 47. Sheikh Jan Mohammad v. Umanath Misra, AIR 1962 Pat. 48. Semi Chettiar v. Santhanathan, (1897) ILR 20 Mad 58 (FB) 49. Re Hormusji Irania, (1888) 13 Bom 87. 50. Manoharlal v. State of Madhya Pradesh, AIR 1959 MP 120. 51. Income Tax Commr v. Kamaksha Narain, (1940) Pat 633, following HV Low & Co. Ltd. v. Jyoti Prasad Singh Deo, AIR 1931 PC 299; Fala Krishna Pal v. Jagannath, AIR 1932 Cal 755; Pashupati Nath v. Sankari Prasad, AIR 1957 Cal 128 [LNIND 1955 CAL 207]. 52. Devi Singh v. Janki Saran, AIR 1948 All 396. 53. Kodulal v. Beharilal, AIR 1932 Sau 60. 54. Steelmans Advertising Agencies Pvt. Ltd. v. The Municipal Corpn. for Greater Bombay, AIR 1990 Bom 338 [LNIND 1990 BOM 46]. 55. T. Lakhmipathi v. P. Nithyananda Reddy 2003(3) RCR (Civil) 306 (SC). 56. Vakalpakam Amma v. Muthurama Iyer Muthurkrishna Iyer, AIR 1995 Ker 99 [LNIND 1994 KER 215]. 57. Peter George v. Janak Gandhi, (1996) 36 DRJ 248 [LNIND 1996 DEL 61]; Nemichand Sasmal v. Jainuddin Alihusein, AIR 1986 Bom 369 [LNIND 1986 BOM 56]. 58. Pancholi v. Sridharjee, AIR 1984 All 130 [LNIND 1984 ALL 23]. 59. Vidyawati v. Hans Raj, AIR 1993 Del 187. 60. Hind Rubber Industries Pvt. Ltd. v. Tayebhai Mohammedbhai Baqasarwalla, AIR 1996 Bom 389 [LNIND 1996 BOM 521]. 61. P. Parangodan v. P. Parameswaran, AIR 2002 Ker 221 [LNIND 2002 KER 141]. 62. Dammulal v. Mahomedbhai, AIR 1955 Nag 306; Mozam Shaikh v. Ananda Prasad, AIR 1942 Cal 341; Thadani v. Chief Settlement Commr, AIR 1958 Punj 314. 63. B. Valsala v. Sundaram Nadar Bhaskaran, AIR 1994 Ker 164 [LNIND 1993 KER 93]; Bansidhar v. Ramcharan, AIR 1940 Oudh 401; Kundan Lal v. Deepchand, AIR 1933 All 756. 64. Deo d Patrick v. Beaufort (Duke), (1851) 6 Exch 498; Jones v. Foley, (1891) 1 QB 730, 731. 65. Gulam Mohiuddin v. Dayabhai, AIR 1923 Bom 398. 66. Kantheppa v. Sheshappa, (1898) ILR 22 Bom 893; Chandri v. Daji Bhau, (1900) ILR 24 Bom 504; Pusa Mal v. Makdum, (1909) ILR 31 All 514. 67. Bansidhar v. Ram Chandra, AIR 1940 Oudh 401; Gokul Chand v. Shib Charan, (1912) 9 AH LJ 574; Raj Kishore Biswal v. Bimbadhar Biswal, AIR 1993 Ori 115 [LNIND 1992 ORI 48]; Hamnalli v. Dara Shah, AIR 1949 Nag 289. 68. Manicka v. Chinnappa, (1913) ILR 36 Mad 557. 69. Richardson v. Langridge, (1811) 4 Taunt 129. 70. Ram Kishun v. Sibi Sohila, 145 IC 567; Deo Nandan Pershad v. Meghu Mahton, (1907) ILR 34 Cal 57; Deo d Price v. Price, (1932) 9 Bing 356; Janki v. Kanhaiya Lal, AIR 1940 Oudh 102. 71. Indubhushan v. Haribhajan Singh, AIR 1976 Pat 280.

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(IN) Poonam Pradhan Saxena : Property Law 72. Hanso v. Har Narain, (1886) All WN 115 (FB); Khuda Bakhsh v. Shea Din, (1886) ILR 8 All 405; Vallabhji v. Jivandas MR, (1952) Kutch 13 ; see also Shiv Nath v. Ram Bharosey, AIR 1969 All 333 [LNIND 1967 ALL 61] wherein it was held that if notice is required to terminate a tenancy, it is not a tenancy at will. 73. Howard v. Shaw, (1841) 8 M & W 118. 74. Jivaraj Gopal v. Atmaram Dayaram, (1890) ILR 14 Bom 319. 75. Ram Lal v. Bibi Zohra, AIR 1941 Pal 228; Balkmhna Vamanaji v. Jasha Farsi, (1895) ILR 19 Bom 150; Babu Lall v. Gopi Lal, AIR 1957 Pat 490. 76. Udaram v. Tej Koran, AIR 1975 Raj 147 [LNIND 1975 RAJ 12]. 77. Devaki v. Alavi, (1979) Ker LT 67 [LNIND 1978 KER 275] (FB) 78. K. Venkatadri Sarma v. I.G. of Registration & Stamp, AIR 1986 AP 256 [LNIND 1985 AP 178]; Balram Raoji Nasare v. Mahadeo Panduji, AIR 1949 Nag 389. 79. Purmananddas v. Dharsey, (1886) ILR 10 Bom 101; Swaminatha v. Ramaswami, AIR 1921 Mad 72 [LNIND 1920 MAD 132]; Gore v. Lloyd, (1844) 2 M & W 463; Ramjoo Mahomed v. Haridas Mullick, AIR 1925 Cal 1087; Brijnandan Singh v. Jamuna, AIR 1958 Rang 589. 80. Macnaghten v. Rameshwar Singh, (1903) ILR 30 Cal 831. 81. Punjalal v. Bhagwatprasad, AIR 1963 SC 120 [LNIND 1962 SC 232]. 82. Municipal Corpn. Bombay v. Secretary of State, (1905) ILR 29 Bom 580; Sewakram v. Meerut Municipal Board, AIR 1937 All 328; Anwarali v. Jamini Lal Ray, AIR 1940 Cal 89 [LNIND 1939 CAL 1]. 83. See The Transfer of Property Act 1882, s. 110;Raja Vizianagaram v. Maharaja Jeypore, AIR 1944 Mad 518. 84. Juthika Mulick v. Dr. MYBAL, AIR 1995 SC 1142 [LNIND 1994 SC 1005]. 85. Pitcha Kutti v. Kamala, (1864) 1 Mad HC 153. 86. Goodright D. Hall v. Richardson, (1789) 3 Term Rep 462. 87. Marshall v. Berridge, (1881) 19 Ch 233, 239. 88. Deo d Cornwall v. Matthews, (1851) 11 CB 675. 1.

Ramchand v. Lush, AIR 1936 Lah 890.

2.

Municipal Corpn. Bombay v. Secretary of State, (1905) ILR 29 Bom 580; Sewakram v. Meerut Municipal Board, AIR 1937 All 328; Anwarali v. Jamini Lal Ray, AIR 1940 Cal 89 [LNIND 1939 CAL 1].

3.

Municipal Corpn. Bombay v. Secretary of State, (1905) ILR 29 Bom 580.

4.

P.S.Bedi v. Project and Equipment Corp. of India, (1994) 28 DRJ 680 [LNIND 1994 DEL 115].

5.

Mohamad Cahum v. Ezaliel, (1905) 7 Bom LR 772.

6.

Ramachandra v. Narasingham, AIR 1931 Bom 466.

7.

Collector of Bombay v. Laxmibai, (1948) ILR Bom 342; see also Ramchandra v. Lachminarayan, AIR 1950 Ori 1, (1949) ILR Cut 231.

8.

Vaman v. Maki, (1880) ILR 4 Bom 424; Higgins v. Nabin, (1907) 11 Cal WN 809; Parshotam Vishnu v. Nana Prayag, (1894) ILR 18 Bom 109; Abdulrahim v. Sarafalli, AIR 1929 Bom 66 (lease for 25 years and so long thereafter as the lessee paid rent)

9.

Damodar Tukaram v. Bombay, AIR 1959 SC 639 [LNIND 1959 SC 15].

10. Dewarkhan Co. v. Secretary of State, AIR 1939 Bom 215. 11. Jankinath v. Dinanath, AIR 1931 PC 207. 12. Donkangowda v. Revanshedappa, AIR 1943 Bom 148. 13. Zimbier v. Abraham, (1903) 1 KB 577. 14. Manoj Roy v. Gunendra Roy, AIR 2007 Gau 172. 15. Sambhunath Mitra v. Khaitan Consultant Ltd., AIR 2005 Cal 281 [LNIND 2005 CAL 215]. 16. Rajesh Vaibhav v. State of Chhattisgarh, AIR 2011 Chh 51. 17. Rampur Engineering Co. Ltd. v. State, AIR 1981 All 396. 18. Tafazzal Ahmed v. Masalat Khan, AIR 1934 Cal 747; Sree Sankarachari v. Varada, (1904) ILR 27 Mad 332 (rent according to rates of neighbouring land)

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(IN) Poonam Pradhan Saxena : Property Law 19. Shri Prasad v. Sris Chandra, AIR 1943 Pat 327. 20. Krishna Bhatt v. Narayan Acharya, AIR 1949 Mad 618; Ummathu v. Ali, AIR 1961 Ker 292 [LNIND 1960 KER 324]. 21. Viziaran v. Vikran Dev, AIR 1944 Mad 518. 22. Mangalmurti v. State of Bombay, AIR 1959 SC 639 [LNIND 1959 SC 15]. 23. Rama Krishna Rao v. Mahadeo Bhatte, AIR 1935 Mad 335; Commr of Income-Tax v. Panbari Tea Co., AIR 1965 SC 1871 [LNIND 1965 SC 140]; Beni Prasad v. Mulchand, (1910) 6 Nag LR 65. For a distinction between premium and rent; see Commr of Income-Tax v. Panbari Tea Co., AIR 1965 SC 1871 [LNIND 1965 SC 140]. 24. Nidha Shah v. Murli Dhar, (1903) ILR 25 All 115. 25. Ranee Sonat Kowar v. Miza Himmut Bahadur, 3 IA 92; Janaki Nath v. Dina Nath, AIR 1931 PC 207; State of Punjab v. British India Corpn., AIR 1963 SC 1459 [LNIND 1963 SC 44]; Raja Ram Singh v. Kanhaya Raj, AIR 1950 Pat 284; Doe v. Edney, (1845) 7 QB 976 (cleaning a church); Jyotish Chandra v. Ramanath, (1905) ILR 32 Cal 243 (service as physician); Bandhu Ganda v. Balaram, (1902) 15 CPLR 42; Lakshmi Narain v. Shri Krishna, (1958) 56 All LJ 278; Montagu v. Browning, (1954) 2 All ER 601 (cleaning a synagogue); Muluk Chand v. Surendra Nath, AIR 1957 Cal 217 [LNIND 1956 CAL 126]; Satyapati v. Muthanan, AIR 1927 PC 206; Surnomoyee v. Koomar Purresh, (1879) ILR 4 Cal 576; Watson v. Sreekristo, (1894) ILR 21 Cal 132; Assanulla v. Tirthabashini, (1895) ILR 22 Cal 680; Bengal Coal Co. v. Janardan Kishore Lal Singh Deo, AIR 1938 PC 243. 26. Suraj Prakash v. Union of Delhi, AIR 1998 Del 236 [LNIND 1997 DEL 993]; see also Sadashiv v. Ramkrishna, (1901) 25 Bom 556, 563; Abdul Hari v. Nathua, (1904) 1 All LJ 537. 27. Dipak Banerjee v. Lilabath Chakraborty, (1987) 4 SCC 161 [LNIND 1987 SC 528], 165; Rajbir Kuar v. Chokesiri & Co., (1989) 1 SCC 19 [LNIND 1988 SC 821], 33. 28. Anant Lal v. Bhibute Bhuwan, AIR 1944 Pat 293. 29. Lachhmandas v. Zuberlal, AIR 1974 Bom 115 [LNIND 1972 BOM 49]. 30. Prem Sukh Das v. Bhupia, (1878) 2 All 517; Jalasutram v. Bommadevara, (1906) 29 Mad 42; Jagannatha v. Muthia Pillai, (1901) 14 Mad LJ 477; Bama Charan v. Administrator General, (1907) 6 Cal LJ 72. 31. Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556 [LNIND 1990 SC 923], 562. 32. Deo Nandan v. Meghu Mahton, (1907) ILR 34 Cal 57. 33. Biraj v. Kedar Nath, (1908) ILR 35 Cal 1010; Lalit Mohan v. Gopali, (1912) ILR 39 Cal 284; Durga Prasad Singh v. Rajendra Narain Singh, 40 IA 223. 34. The Indian Easements Act 1882, s. 52. 35. Lall v. Dunlop Rubber Co., AIR 1968 SC 175 [LNIND 1967 SC 203]; Ma Gyi v. Maung Tet, AIR 1934 Rang 291; Upendra Mandal v. Bhajahairi Mandal, AIR 1991 NOC 107 (Gau). 36. Johnson Kanadan v. Patel Saw Mill, AIR 2008 (NOC) 842 (Ker); Madan Mohan Kukreti v. Geeta Bhawan, AIR 2007 Utr 32; Gajriben v. Kantilal Uttamram Chevli, AIR 2007 Guj 18 [LNIND 2006 GUJ 500]; Goa Tourism Development Corporation v. SC Palyenkar, AIR 2006 Bom 243 [LNIND 2006 GOA 63]; Bhagchand v. Administrator, Municipal Corporation, Indore, AIR 2005 MP 159 [LNIND 2005 MP 141]; Westinghouse Saxby Farmer Ltd. v. Sunil Kumar Gupta, AIR 2005 Cal 322 [LNIND 2005 CAL 212]; Jainabi Yousuf v. Jainabi Allimiya, AIR 2004 Bom 394 [LNIND 2004 BOM 364]; Prabhu Dayal v. Roop Kumar, AIR 2005 Del 144 [LNIND 2004 DEL 958]; C M Beena v. P N Ramachandra Rao, (2004) 3 SCC 595; Achintya Kumar Saha v. Nanee Printers, AIR 2004 SC 1591 [LNIND 2004 SC 137]; Megh Raj v. DCM Ltd., AIR 2000 Del 332 [LNIND 2000 DEL 141]; Delta International v. Shyam Sunder Ganeriwala, AIR 1999 SC 2607 [LNIND 1999 SC 378]; Samir Kumar Chateya v. Hirendra Nath Ghosh, AIR 1992 Cal 129 [LNIND 1990 CAL 169]. 37. Narain Prasad Agarwal v. State of MP AIR 2007 SC 2349 [LNIND 2007 SC 739]; Raka Singhal v. Pushpa Builders Ltd AIR 2007 Del 222 [LNIND 2007 DEL 894]; Associated Hotels of India v. R.N.Kapoor, AIR 1959 SC 1262 [LNIND 1959 SC 128], 1269; Karuna Manoharlal v. Vipinbhai U. Sanghani, AIR 1933 Bom 177, 180. 38. Paradeep Phosphates Ltd. v. Board of Trustees Paradip Port Trust, AIR 2009 Ori 114 [LNIND 2008 ORI 76]. 39. Ajab Singh v. Shital Puri, AIR 1993 All 138 [LNIND 1993 ALL 30]; Bhadreswar Pandit v. Puspa Rani Pandit, AIR 1991 Cal 405 [LNIND 1991 CAL 46]; Sohan Lal Narandas v. Laxmandas, (1977) (1) SCC 276; Sarwir Kumar v. Subash Kukreja, (1997) 67 DLT 259 [LNIND 1997 DEL 280]; Jagjit Cotton Textiles Ltd. v. Col AKMALHOTRA, AIR 1996 Del 165 [LNIND 1995 DEL 689]; Ashok Chaudhry v. Inderjit Sandhu, (1998) 47 DRJ 575. 40. Lall v. Dunlop Rubber Co., AIR 1968 SC 175 [LNIND 1967 SC 203]; Mammikutti v. Puzhakkal, (1906) ILR 29 Mad 353. 41. Associated Hotels of India Ltd. v. R.N.Kapoor, AIR 1959 SC 1262 [LNIND 1959 SC 128]; M.N. Clubwala v. Fida Hussain Saheb, AIR 1965 SC 610 [LNIND 1964 SC 23]; Konchada R. Subudhi v. Gopinath, AIR 1968 SC 919 [LNIND 1967 SC 363]; Errington v. Errington, (1952) 1 All ER 149 (CA); Issac v. Hotel de Paris Ltd., (1960) 1 All ER 348; P.C.Satinath Mukherjee v. Sailendra Nath Sen, AIR 1991 NOC 55 (Cal); Daya Wati Madan Lal v. Ravinder Kumar Sharma, AIR 1992 P & H 212; Gopal Saran v. Salganarayan, AIR 1989 SC 1141 [LNIND 1989 SC 112]; BVDSouza v. Antonio Fausto Fernandes, AIR 1989 SC 1816 [LNIND

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(IN) Poonam Pradhan Saxena : Property Law 1989 SC 368]; K. Ram Mohan Rao v. Endowments Commr, AIR 1989 Kant 192 [LNIND 1988 KANT 399], 200; T. Shanmugham Pillai v. N. Rajaraman, AIR 1986 Ker 173 [LNIND 1985 KER 192]; Fachhini v. Bryson, (1952) 1 TLR 1386; Addiscombe Garden Estates v. Crabbe, (1957) 3 All ER 563; Aninha DCOSTA v. Parvatibai Thakur, (1965) 67 Bom LR 452; Sohanlal Naraindas v. Laxmidas, (1963) 67 Bom LR 400. 42. Puran Singh Sahni v. Sundari Bhagwandas Kripalani, (1991) 2 SCC 180 [LNIND 1991 SC 110]; Sohanlal v. Laxmidas Raghunath Gadit, (1971) 1 SCC 276 [LNIND 1971 SC 700]; see also Tarkeshwar Sio Thakur Jui v. Dar Dass Day & Co., AIR 1979 SC 1669 [LNIND 1979 SC 92]; Delta International v. Shyam Sunder Ganeriwala, AIR 1999 SC 2607 [LNIND 1999 SC 378]; Pratap Narain v. Juggilal Kamlapat Iron & Steel Co. Ltd., AIR 1975 All 73. 43. Narain Prasad Agarwal v. State of MP, AIR 2007 SC 2349 [LNIND 2007 SC 739]; Raka Singhal v. Pushpa Builders Ltd., AIR 2007 Del 222 [LNIND 2007 DEL 894]; A.G. Securities v. Vaughan, (1988) 3 All ER 1058; Street v. Mount Ford, (1985) 2 All ER 289; Paramanand Gulabchand & Co. v. Mooligi Visanji, AIR 1990 Ker 190 [LNIND 1989 KER 502]. 44. H.S.Rikhy v. New Delhi Municipality, AIR 1962 SC 554 [LNIND 1961 SC 299]. 45. Thakur Prasad v. State Iron & Steel Co. Ltd., AIR 1976 Pat 156; Chinna v. Govindaswami, AIR 1969 Mad 191 [LNIND 1967 MAD 58]: (1968) 3 Mad 335. 46. Peter Alex DSOUZA v. Prithi Paul Singh, AIR 2002 Bom 471 [LNIND 2002 BOM 318]. 47. Reg v. Morrish, (1863) 32 LJ (MC) 245; Semi Chettiar v. Santhanathan, (1897) ILR 20 Mad 58 (FB); Indian Hotels Co. v. Phiroz, AIR 1923 Bom 228; Emperor v. Sherif Dadumiyaji, AIR 1930 Bom 165; Athakutti v. Govinda, (1893) ILR 16 Mad 97 (no exclusive possession); Glenwood Lumber Co. v. Phillips, (1904–7) All ER Rep 203; Young v. Liverpool Assessment Committee, (1911) 2 KB 195; Secretary of State v. Bhupakhandra Ray, AIR 1930 Cal 739 (such possession given) 48. Ram Niwas v. Municipal Board, Nawabganj, AIR 1976 All 241. 49. (1971) Mahlj 04 at 607 : (1971) 1 SCC 276 [LNIND 1971 SC 700]. 50. AIR 1959 SC 1262 [LNIND 1959 SC 128]. 51. (1952) All ER 149. 52. AIR 1986 Bom 359 [LNIND 1984 BOM 187]. 53. AIR 1989 SC 1816 [LNIND 1989 SC 368]: (1989) 3 SCC 574 [LNIND 1989 SC 368]. 54. AIR 1992 Cal 129 [LNIND 1990 CAL 169]. 55. AIR 1999 SC 2607 [LNIND 1999 SC 378], (1999) 4 SCC 545 [LNIND 1999 SC 378]. 56. Inderjeet Singh Sial v. Karam Chand Thapar, AIR 1996 SC 247 [LNIND 1995 SC 1591]. 57. B.V. Dsouza v. Antonio Fausto Fernandes, AIR 1989 SC 1816 [LNIND 1989 SC 368]: (1989) 3 SCC 574 [LNIND 1989 SC 368]. 58. Sohanlal Naraindas v. Laxmidas Raghunath Gadit, (1971) 1 SCC 276 [LNIND 1971 SC 700]. 59. Rajbir Kaur v. S. Chokesiri, AIR 1988 SC 1845 [LNIND 1988 SC 821]. 60. Uttamchand v. S.M. Lalwani, AIR 1965 SC 716. 61. Dropadi Devi v. Ram Das, AIR 1974 All 473. 62. Associated Hotels of India Ltd. v. R.N.Kapoor, AIR 1959 SC 1262 [LNIND 1959 SC 128]; MNClubwala v. Fida Husain Saheb, AIR 1965 SC 610 [LNIND 1964 SC 23]; Lall v. Dunlop Rubber Co. AIR 1968 SC 175 [LNIND 1967 SC 203]; Errington v. Enington, (1952) 1 All ER 149 (CA); Ramjibhai v. Gordhandas, (1954) 56 Bom LR 365; Shanti Sarup v. R.S.Sabha, AIR 1969 11 248; Abbey field (Harpenden) Society Ltd. v. Woods, (1968) 1 All ER 352. 63. Secretary of State v. Bhupalchandra, AIR 1930 Cal 739. 64. Associated Hotels v. Ranjit Singh, AIR 1968 SC 933 [LNIND 1967 SC 365]. 65. Srirangam Municipality v. V.N.Pillai, AIR 1972 Mad 430 [LNIND 1971 MAD 225]. 66. R. Srinivasa Chetty v. G. Nagarajan, (1982) 1 Cal LJ 25. 67. Turab Ghosi v. Laxmi Agarwal, AIR 1984 All 180 [LNIND 1983 ALL 4]. 68. Gajriben v. Kantilal, AIR 2007 Guj 18 [LNIND 2006 GUJ 500]. 69. Qudratullah v. Municipal Board Bareilly, AIR 1974 SC 396 [LNIND 1973 SC 374]; see also Rajbir Kaur v. S. Chokosiri & Co., AIR 1988 SC 1845 [LNIND 1988 SC 821]; Permanand Gulabchand & Co. v. Moolly Visanji, AlR 1990 Ker 190; T.K.Jacob v. Gracykutty, AIR 1991 Ker 281; P. Narayanan v. Managing Director Kerala Health Research & Welfare Society, AIR 1991 Ker 306; Associated Hotels of India Ltd. v. R.N.Kapoor, AIR 1959 SC 1262 [LNIND 1959 SC 128]; Associated Hotels of India Ltd. v. RB Sardar Ranjit Singh, AIR 1968 SC 933 [LNIND 1967 SC 365]; Brahm Raj v. Vidyawati, AIR 1991 P&H 188, 192; Mohan Sons (Bombay) Pvt. Ltd. v. Lady Sonno Jamsetji Jeejeebhoy, AIR 1976 Bom 417 [LNIND 1974 BOM 86].

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(IN) Poonam Pradhan Saxena : Property Law 70. Rajbir Kaur v. S. Chokosiri, AIR 1988 SC 1845 [LNIND 1988 SC 821]; Marchant v. Charters, (1977) 3 All ER 918, CA. 71. Board of Revenue v. A.M. Ansari, AIR 1976 SC 1813 [LNIND 1976 SC 100]. 72. Chhotabhaijethabhai Paul v. State of Madhya Pradesh, AIR 1953 SC 108 [LNIND 1952 SC 100]; Maqbool Ahmad v. Devi, AIR 1949 All 455; Din Dayal v. Brij Mohan, AIR 1951 All 384; Shiv Dutt v. Ghasita AIR 1953 All 499 [LNIND 1951 ALL 227]; Mohammed Khan v. Ramnarayan, AIR 1956 Ori 156; Daulat Singh v. State of Rajasthan, AIR 1956 Raj 33 [LNIND 1955 RAJ 81]; but see Shantabai v. State of Bombay, AIR 1958 SC 532 [LNIND 1958 SC 30]. 73. S. Srinivasa Iyer v. Dekshinamurthi, AIR 2000 Mad 388 [LNIND 2000 MAD 114]; Venkatachalapothy Odayar v. Rajalakshmi Ammal, (1981) 1 Mad LJ 11. 74. Natesa Gramani v. Tangarelu, (1915) ILR 38 Mad 883. 75. Indian Hotels Co. v. Phiroz, AIR 1923 Bom 228 (FB). 76. Madan Mohan Kukreja v. Geeta Bhawan, AIR 2007 Utr 32. 77. G. Cariappa v. Leila Sinha Roy, AIR 1984 Cal 105 [LNIND 1983 CAL 222]. 78. Bharvad Chhota Bhaga v. B.L. Dahya, AIR 1999 Guj 17 [LNIND 1998 GUJ 213]. 79. Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184 [LNIND 1987 SC 764]. 80. C.Devdas v. Calicut Corpn., AIR 1996 Ker 274 [LNIND 1996 KER 128]. 81. Appah v. Parndiffe Investments Ltd., (1964) 1 All ER 838. 82. Panjabroo Harbaji Kothe v. Gajanan Balaji, AIR 1980 Bom 396 [LNIND 1979 BOM 192]. 83. Prakash Rao v. Nihar State Road Transport Corpn., AIR 1981 Pat 142. 84. Hind Trading & Manufacturing Co. v. Didi Motors Pvt. Ltd., AIR 1993 Del 303. 85. Westinghouse Saxby Farmer Ltd. v. Sunil Kumar Gupta Roy AIR 2005 Cal 322 [LNIND 2005 CAL 212]; Kedhari Singh v. DCM, (1997) DLT 65, 903. 86. Corpn of Calcutta v. Allahabad Bank, AIR 1949 Cal 105. 87. Megh Raj v. DCM Ltd., AIR 2000 Del 332 [LNIND 2000 DEL 141]. 88. Lall v. Dunlop Rubber Co., AIR 1968 SC 175 [LNIND 1967 SC 203]. 89. GG in Council v. Corpn. of Calcutta, AIR 1948 Cal 8; Mayhew v. Suttle, (1854) 4 E & B 347 Ex Ch; R. v. Spunell, (1865) LR 1 QB 72; Smith v. Seghill, (1875) LR 10 QB 422; Athakutti v. Govinda (1893) ILR 16 Mad 97. 90. Bradley v. Bayliss, (1881) QBD 195, 216. 91. Wight v. Stavert, (1860) 2 E & E 721. 92. Smith v. St. Michael Cambridge Overseers, (1860) 3 E & E 383. 93. R. v. St. Georges Union, (1871) LR 7 QB 90, 97; see also Appah v. Parncliffe Investments Ltd., (1964) 1 All ER 838. 94. Ram Prakash v. Shambhu Dayal, AIR 1960 All 395 [LNIND 1959 ALL 156]; Wright v. Stavert, (1860) 2 E & E 721. 95. Board of Revenue v. South India Railway, AIR 1925 Mad 434 (FB). 96. Uttam Chatterjee v. Union of India, AIR 1986 Del 291 [LNIND 1985 DEL 299]. 97. Babu Fazal Haq v. Lalal Data Ram, AIR 1975 All 373. 98. P. Narayanan v. Managing Director Kerela Health Reasearch and Welfare Soceity, AIR 1991 Ker 306; MNClubwala v. Fida Husain Saheb, AIR 1965 SC 610 [LNIND 1964 SC 23]. 1.

Jadab Chandra Das v. Sri Sri Hayagriv Madhab, AIR 2007 Gau 185 [LNIND 2007 GAU 172]; Deenar Builders Pvt. Ltd. v. Khoday Distilleries, AIR 2000 Del 147 [LNIND 1999 DEL 1028]; A.P. Handloom Weavers Co-operative society v. K Venkateswar Rao, AIR 2000 Ori 153; Uptron Powertronics Ltd. v. G.L. Rawal, AIR 1999 Del 377 [LNIND 1999 DEL 527]; Ruprao Nagarao Madulkar v. Murlidhar Dagduseth Dabhade, (1982) Mah LJ 104.

2.

The rule does not apply to the tenancy created by act of parties or by court, see Sazawar Khan v. Satyendra, AIR 1942 Cal 406 or where the tenancy expires by efflux of time, see Kundanlala v. Deepchand, AIR 1933 All 756. Section 106 has been amended in Uttar Pradesh by UP Act 24 of 1954. The period of notice of a tenancy from month to month has been raised to 30 days.

3.

K S S A S C Trust v. S K V. Setty, AIR 2004 SC 3929 [LNIND 2004 SC 698]; F C I v. Babulal Agarwal, (2004) 2 SCC 712 [LNIND 2004 SC 9]; Ram Kumar v. Jagadish Chandra, AIR 1952 SC 23 [LNIND 1951 SC 66]; Bastacolla Colliery Co. v. Bandhu Beldhar, AIR 1960 Pat 344; Balwant Singh v. Murari Lal, AIR 1965 All 187.

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(IN) Poonam Pradhan Saxena : Property Law 4.

Deenar Builders Pvt. Ltd. v. Khoday Distilleries, AIR 2000 Del 147 [LNIND 1999 DEL 1028]; A.P. Handloom Weavers Co. Operative Society v. K. Venkateswar Rao, AIR 2000 Ori 153; Uptron Powertronics Ltd. v. G.L. Rawal, AIR 1999 Del 377 [LNIND 1999 DEL 527].

5.

Ram v. Sameswari, AIR 1925 Cal 1171.

6.

Adit Prasad v. Chhaganlal, AIR 1968 Pat 26.

7.

Ram Kumar v. Jagadish Chandra, AIR 1952 SC 23 [LNIND 1951 SC 66]; Baidyanath v. Onkarmal, AIR 1938 Cal 656; Bagchi v. Morgan, AIR 1937 All 36.

8.

Ramayan Saran v. Patna Improvement Trust, AIR 1972 Pat 7.

9.

Ruprao Nagarao Madulkar v. Murlidhar Dagduseth Dabhade, (1982) Mah LJ 104.

10. Jicks & Co. v. Joosab Mohomad, AIR 1924 Bom 115; Rupeswari Debi v. Lokenath Hosiery, AIR 1962 Cal 608 [LNIND 1961 CAL 147]. 11. Moosa Rutty v. Thekka, AIR 1928 Mad 687; Kilu v. Ammad Rutty, 8 IC 362, (1910) Mad WN 794; Ruda Baksh v. Abid Hussain, 12 OC 279. 12. Amar Singh v. Hoshiar Singh, AIR 1952 All 141 [LNIND 1950 ALL 260]. 13. Uda Ram v. Tej Karan, AIR 1975 Raj 147 [LNIND 1975 RAJ 12]. 14. Gordhan v. Ali Bux, AIR 1981 Raj 206 [LNIND 1981 RAJ 23]. 15. V.Sidharthan v. Pattiorti Ramadasan, AIR 1984 Ker 181 [LNIND 1984 KER 64]; Mehta & Co. v. Lalen, (1974) KLT 89; but see also K. Nasir Basha v. T.C.Charities, AIR 1976 Mad 120 [LNIND 1975 MAD 387], wherein it was held that a contract that the tenant should surrender the property when required, will exclude the application of the provision of s. 106. 16. Mehta & Co. v. Lalen, (1974) KLT 89. 17. Pralhadrai v. Commr of Port of Calcutta, AIR 1939 PC 11. 18. Bhojabhai v. Hayem Samuel, (1898) ILR 22 Bom 754. 19. Rattan Sen v. Krishna Kaur, AIR 1933 Cal 134; Bhaiya Ram v. Mahavir Parshad, AIR 1969 Punj 110 (FB); Chiranjit Lal v. Narain Singh, AIR 1972 P&H 432. 20. Surendranath Satkar v. Poornachandra Mukherji, AIR 1933 Cal 609. 21. Joyanti Hosiery Mills v. Upendra Chandra, AIR 1946 Cal 317. 22. John Augustine Peter Mirande v. N. Datha Naik, AIR 1971 Mys 365. 23. Idandas v. Anant Ramchandra Phadke, AIR 1982 SC 127 [LNIND 1981 SC 442]. 24. Bachulal Sah v. Gita Timber Co., AIR 1996 Ori 3 [LNIND 1995 ORI 232]. 25. Umrao Mal v. Heera Lal, AIR 1973 Raj 337; Beharilal v. Chandrawati, AIR 1966 All 541; see also Jayanti Hosiery Mills v. Upendra Chandra Das, AIR 1946 Cal 317. 26. Prasanna v. S Nagalaxmi, AIR 2010 Karn 66. 27. Sureshwar Pandit v. Asma Khatoon, AIR 1995 Gauhati 41. 28. Kali Kunwar v. Haridas, AIR 1969 Assam134. 29. Devi Chand Balkrishna Sonwane v. Kisan Shreepati Dhumal, AIR 1981 Bom 226 [LNIND 1981 BOM 87]. 30. Kunj Behari v. Acharya Hari, AIR 1975 Raj 138 [LNIND 1975 RAJ 22]. 31. Umrao Mal v. Heera Lal, AIR 1973 Raj 337. 32. Denon Type v. John MPUNNAN, (1974) Ker LT 304. 33. Sri Iswar Sridharjiew v. Anup Lal Sharma, AIR 1975 Cal 174 [LNIND 1974 CAL 128]. 34. Brohmananda Das v. Nagendra Chandra, AIR 1954 Cal 224 [LNIND 1953 CAL 199]. 35. Shivnarayan Laxminarayan Joshi v. State of Maharashtra, (1980) 2 SCC 461 [LNIND 1979 SC 411]. 36. Allenbury Engineers (Pvt.) Ltd. v. Ram Krishna Dalmia, AIR 1973 SC 425 [LNIND 1972 SC 439]. 37. L.A. Sounders v. Corpn. of Calcutta, AIR 1955 Cal 169 [LNIND 1954 CAL 81]. 38. Ramesh Chandra v. Surya Properties, AIR 1957 Cal 198 [LNIND 1955 CAL 196]. 39. Kishan Chand v. Sayeeda Khatoon, AIR 1983 AP 253 [LNIND 1982 AP 191].

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(IN) Poonam Pradhan Saxena : Property Law 40. Union of India v. Addl. District Judge, Vth Kheri, 2010 (3) ALJ 164 : AIR 2010 (NOC) 742 (All); Deenar Builders Pvt. Ltd. v. Khoday Distilleries, AIR 2000 Del 147 [LNIND 1999 DEL 1028]; A.P. Handloom Weavers Cooperative Society v. K. Venkateswar Rao, AIR 2000 Ori 153. 41. Kishan Lal v. Ganpat, AIR 1961 SC 1554 [LNIND 1961 SC 178]; Chunilal v. Chunilal, AIR 1923 Lah 659; Bhura v. Bahadur Singh, AIR 1976 Raj 249 [LNIND 1976 RAJ 19]. 42. Mohindra Nath v. Radha Prosanna, 47 IC 19. 43. Bhola Nath v. Raja Durga, (1907) 12 Cal WN 724 (two months notice); Raj Behari v. Kailas, (1915) 22 Cal LJ 78 (notice according to the Bengali calendar); Sahib Dayal v. Dhanpat, AIR 1923 Lah 281 (a weeks notice); Munshi Ram v. Sain Dass, AIR 1959 J&K 87; Madhav Rao v. Bhagwandas, AIR 1961 MP 138 [LNIND 1960 MP 192]. 44. Rawal Hardeo Singh v. State of Rajasthan, AIR 1981 Raj 280 [LNIND 1981 RAJ 10]. 45. S. Rajdev Singh v. Punchip Associates Pvt Ltd., AIR 2008 Del 56 [LNIND 2007 DEL 661]; P.S. Bedi v. Project and Equipment Corpn. of India, (1928) DRJ 680. 46. Akash Ganga Builders v. G.P. Seth, AIR 1999 Del 362 [LNIND 1999 DEL 317]; Gur Prasad v. Hansaraj, AIR 1946 Oudh 144. 47. Sazawar Khan v. Satyendra Lal, AIR 1942 Cal 406. 48. Nopany Investments (Pvt ) Ltd. v. Santokh Singh (HUF), AIR 2008 SC 673 [LNIND 2007 SC 1445]. 49. Narain Kumar v. Onkar Nath Agarwal, AIR 1973 All 257; Rajendranath v. Bassider, (1877) ILR 2 Cal 146; Janki v. Kanhaiyalal, AIR 1936 Oudh 102, 159 IC 316. 50. Thackerakavil v. Noor Mahomed, AIR 1922 Mad 349 [LNIND 1921 MAD 85]. 51. Sardar Amar Singh v. Surinder Kaur, AIR 1975 MP 230 [LNIND 1975 MP 103]; see also Baldeo Prasad v. Dasrath Lal, (1954) ILR Nag 957. 52. Emilia Tinoco v. S.N.God, AIR 1997 Bom 319 [LNIND 1996 BOM 928]; Shree Ram Goyal v. Jitendra Kumar Gupta, AIR 2010 (NOC) 743 (All) : 2010 (2) ALJ 557. 53. Amal Krishna Aditya v. G.C.Das, AIR 1998 Cal 221 [LNIND 1998 CAL 66]. 54. Lain Gagal v. Bai Motan Bibi, (1893) ILR 17 Bom 631. 55. Deo Nandan v. Meghu, (1907) ILR 34 Cal 57. 56. Nacoordas v. Jewrai, 12 Cal LR 263. 57. Dwarka v. Gayatri, (1961) All LJ 353; Dulal Chandra v. Umesh Chandra, AIR 1966 Ass & Nag 93. 58. Fatehchand v. Brijbhushan, AIR 1957 All 801 [LNIND 1957 ALL 47]; Pyarelalsa v. Garanchandsa, AIR 1965 MP 1 [LNIND 1963 MP 49]. 59. Shankarlal Didwaniya v. Akhilesh Narayan Singh, AIR 2010 (NOC) 459 (All) : 2010 (1) ALJ 69. 60. Rakhlala v. Secretary of State, 10 Cal WN 841. 61. Wilkinson v. Colley, (1771) 5 Burr 2694. 62. See the Indian Contract Act 1872, s. 200. 63. Bhagwan v. Shib Sabitri, AIR 1925 All 199. 64. Cassim v. Tusuf, AIR 1917 Cal 621. 65. Gopal Ram v. Dhakeswar Pershad, (1908) ILR 35 Cal 807; Thakuram v. Shakru, 5 IC 277; Saligram v. Abdul, AIR 1953 Assam 206 (notice by firm as landlord). 66. Devji v. Bhoja, AIR 1935 Bom 219. 67. Kermat v. Horumndas, AIR 1916 Cal 906; Sriram v. Gopal, (1955) NUC (All) 2699; Vagha v. Manilala, AIR 1935 Bom 262; Krishna v. Lakshmi Bai, AIR 1938 Bom 316; Abdul v. Bhubaneswar, AIR 1953 Nag 18; Chhoti v. Gangadhar, AIR 1953 Ori 245; Prayag v. Motor, AIR 1914 All 160 [LNIND 1914 ALL 125]; Arun Chandra Dowerah v. Panchu Modok, AIR 1957 Ass 70. 68. Chinnaswami v. Akronambion, AIR 1915 Mad 501 [LNIND 1914 MAD 336]; Maganlal v. Budhar, AIR 1927 Bom 192; Balaji v. Gopal, (1878–79) 3 Bom 219; Krishna v. Lakshmi Bai, AIR 1938 Bom 316. 69. Prabhu Ram v. Tek Chand, AIR 1919 Lah 31; Manikkam v. Rathanaswami, AIR 1919 Mad 1186. 70. Gurumurthappa v. Chickmunisamappa, AIR 1953 Mys 62. 71. Nallule v. Collector, AIR 1924 Mad 904 [LNIND 1924 MAD 188]. 72. Biroja v. Mahamaya, AIR 1941 Cal 399.

Page 61 of 79

(IN) Poonam Pradhan Saxena : Property Law 73. Royal Stationery Supply House v. Azizul Haque, AIR 1973 Cal 363 [LNIND 1972 CAL 222]. 74. Atal v. Kedar, (1921) 33 Cal LJ 515. 75. Bhimaram v. Hura Soondery, (1921) 33 Cal LJ 516; Durga Chum v. Pandub, (1921) 33 Cal LJ 518; Bodordoia v. Ajijuddin Sarkar, AIR 1929 Cal 651; Harihar Banerji v. Ramsashi Roy, AIR 1918 PC 102; Ghasi Ram v. Jagat Narain, AIR 1976 All 221; Permanand v. Anandi Bai, AIR 1974 Raj 65. 76. Atal v. Kedar, (1921) 33 Cal LJ 515. 77. Chimanlal v. Mishrilal, (1985) 1 SCC 14 [LNIND 1984 SC 312], 17 [in context of s. 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961]. 78. Syed Zaved Ali Sabzposh v. Awadh Kishore Lal, AIR 2010 (NOC) 830 (All) : 2010 (3) ALJ 639, where the boundaries were correctly described but there was a minor defect in the name of the mohalla, that was held as not vitiating the notice. 79. Harihar Banerji v. Rwnsashi Roy, AIR 1948 PC 102. 80. Gopinath Mukherjee v. Uttam Bharti, AIR 2009 Cal 58 [LNIND 2008 CAL 690]; Manathanath Kumhammet v. KTCT Unnimoideen Kutty, AIR 2009 Ker 43 [LNIND 2007 KER 248]; Prasanna v. S. Nagalaxmi, AIR 2010 Karn 66; State Bank of India v. A.K. Gupta, (1992) 47 DLT 317 [LNIND 1992 DEL 145]; Oriental Reasearch and Chemical Laboratory v. A.K. Singh, (1965) SCN 337; Mangilal v. Suhagchand, AIR 1965 SC 104; Ahumad v. Jyotsna, AIR 1952 Cal 19 [LNIND 1951 CAL 216]; Banarasilal v. Sri Bhagwan, AIR 1955 Raj 167 [LNIND 1954 RAJ 40]; Hairdas v. Sailendra, AIR 1963 Assam 202; CLMS Co. v. Victor Oil Co., AIR 1944 Cal 84. 81. Kanta Manocha v. Hindustan Paper Corpn., (1998) 74 DLT 493 [LNIND 1998 DEL 474]. 82. Amarendra Nath v. Bhibu Bhushan, AIR 1952 Cal 773 [LNIND 1952 CAL 37]; see also Nagendra Nath v. Jyotesh Chandra, AIR 1952 Cal 221; Rawa Singh v. Kangan Lal, AIR 1952 Punj 423; Ganga Prasad v. Prem Kumar, AIR 1949 All 175; Subadani v. Sugan Chand, 25 Cal 118 approved in Mangelal v. Suganchand, AIR 1965 SC 104; Bengal Electric Lamps Works Ltd. v. S.C.Sinha, AIR 1983 Cal 389 [LNIND 1983 CAL 28], 400, 401. 83. Suraj Prasad v. Kusumlata Sinha, AIR 1973 All 198. 84. Sita Ram v. Moti Lal, AIR 1976 All 70; Jaggoo Smt v. Sardar Gurmukk Singh, AIR 1974 All 250. 85. Sushila Devi v. Manohar Lal, MR 1985 All 178; Bhagat Singh v. Delhi Development Authority, AIR 1988 Del 174 [LNIND 1987 DEL 440]. 86. Calcutta Credit Corpn. v. Happy Homes, AIR 1968 SC 471 [LNIND 1967 SC 304]; Sibendra Natk Kanjilal v. Ganes Chandra Basu, AIR 1985 Cal 269 [LNIND 1985 CAL 32]; Mozam Shaikh v. Ananda Prasad Bhadra, AIR 1942 Cal 341; Dipak Kumar Ghosh v. Mira Sen, AIR 1987 SC 759 [LNIND 1987 SC 88]. 87. P.Ratnam v. Vimalchandra, AIR 1973 Bom 111 [LNIND 1972 BOM 59]. 88. Ram Pratap v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1973 Del 124 [LNIND 1972 DEL 19]. 89. Harmond Properties Ltd. v. Gajdzis, (1968) 3 All ER 263. 90. Bal Kissen Shaw v. Kanupada Bhowmick, AIR 1985 Cal 129 [LNIND 1984 CAL 206]; Raja Ram Soni v. Krishna Prasad Singh, AIR 1973 Gau 17 [LNIND 2016 AP 30]; Mangilal v. Suganchand Rathi, AIR 1965 SC 101. 91. Shama Churn v. Wooma Churn, (1898) ILR 25 Cal 36; Girdharilal v. Purnendu Narayan, AIR 1939 Cal 291. 92. Sidebothan v. Holland, (1895) 1 QB 378; Gnanaprakasam v. Vaz, AIR 1931 Mad 352 [LNIND 1930 MAD 188]; Tika Ram v. Deoji Maharaj, AIR 1934 All 787; Gayaprasad v. S.C.Munilal, AIR 1952 Nag 101; Riyasat Ali v. Mirza Wahid, AIR 1966 All 165 [LNIND 1965 ALL 1]; Ram Bandhan v. Guddar Ram, AIR 1971 All 485. 93. Ram Charan v. Hari Charan, (1908) 7 Cal LJ 107; Secretary of State v. Madhu Sudar Mukherji, AIR 1933 Cal 260. 94. Ahearn v. Bellman, (1879) 4 Exd 201; Ganga Das v. Ananda Chandra, 2 IC 548, (1909) 13 Cal WN 146; Adolpht Skrager v. Emma Price, (1907) 12 Cal WN 1059; Shanhar Lal v. Babu Ram, AIR 1921 All 194; Bhagwana v. Shib Sametri AIR 1925 All 199; but see Chidda Ram v. Naru Mal, AIR 1965 All 323. 1.

Hiranand v. Umaid Raj, AIR 1973 Raj 120.

2.

Farzand v. Motilal, AIR 1921 Pat 334; Shanker v. Baburam, AIR 1921 All 194.

3.

Vaman v. Khanderao, AIR 1935 Bom 247; Kikabhai v. Kalu, 22 Bom 241.

4.

Sakhi Chand v. Ram Chandra, (1912) 16 Cal LJ 561.

5.

Roberts v. Hayward, (1828) 3 C & P 432; Madan Mohan v. Bohra Ram Lal, AIR 1934 All 115, 153 IC 432, (1934) All LJ 421.

6.

Mohammed Ninaye v. Neelacandan, AIR 1960 Ker 216; Zahoor Ahmad v. State of Uttar Pradesh, AIR 1965 All 326; see also Sabir Hussain Khan v. Sarajul Huq, AIR 1951 All 853 [LNIND 1950 ALL 196]; see also Baboo Lal v. Mohammad Askari, AIR 1926

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(IN) Poonam Pradhan Saxena : Property Law Oudh 78, wherein it was held that even if a notice to quit is invalid to determine the tenancy, yet it may be effective to enhance the rent and if the tenant continues in possession, he is liable to pay enhanced rent. 7.

Savarga Bhaktibai Dullabhai Sthapit Bhakta Patidar v. Prabubhai Dahyabhai Bhakta, AIR 2011 (NOC) 186 (Guj).

8.

Gopinath Mukherjee v. Uttam Bharti, AIR 2009 Cal 58 [LNIND 2008 CAL 690]; Manathanath Kumhammet v. KTCT Unnimoideen Kutty, AIR 2009 Ker 43 [LNIND 2007 KER 248]; Prasanna v. S Nagalaxmi, AIR 2010 Karn 66; Debendra v. Syama Prosanna, (1906) 11 Cal WN 1124; Raj Behari v. Kalias, (1915) 22 Cal LJ 78; Haridas v. Upendra, (1912) 16 Cal LJ 74; Seoti Bibi v. Jagannath, (1920) 18 All LJ 854; Banarsilal v. Bhagwan, AIR 1955 Raj 167 [LNIND 1954 RAJ 40], following Ahmad Ali v. Jyotsna Kumar, AIR 1952 Cal 19 [LNIND 1951 CAL 216].

9.

Shree Ram Mills Ltd, Mumbai v. Court Reciever, High Court of Mumbai, AIR 2011 (NOC) 99 (Bom).

10. Haridas Tapadar v. Sailendra Chandra De, AIR 1953 Assam 202. 11. Mangilat v. Suganchand Rathi, AIR 1965 SC 101, approving Subadini v. Durga Charan, (1901) ILR 28 Cal 118; see also Natho v. Sital Prasad, AIR 1969 Pat 310. 12. Secretary of State for India v. Madhu Sudan Mukherji, AIR 1933 Cal 260. 13. H.C.Pandey v. G.C.Gaul, AIR 1989 1470; Radheshyam Modi v. Jadunath Motapatra, AIR 1991 Ori 88 [LNIND 1990 ORI 51]; Abdulahsd Moulvi Abdulsamad v. Gulamahmed Gulamnabi Bardoliwala, AIR 1975 Guj 1 [LNIND 1995 GUJ 161]; see however, Praveen Kumar v. Vll Addl District Judge Meerut, AIR 1994 All 153 [LNIND 1993 ALL 164]. 14. Budha v. Bedariya, AIR 1981 MR 76. 15. Kanji v. Trustees of Port of Bombay, AIR 1963 SC 468 [LNIND 1962 SC 88]; Shri Nath v. Saraswati Dem, AIR 1964 All 52 [LNIND 1963 ALL 15]; Roshan v. Purshottam Lal, AIR 1965 All 287; Tata Iron & Steel Co. v. Abdul Ahad, AIR 1970 Pat 338. 16. Ganga Perskad v. Tribeni Dev, AIR 1976 Del 145 [LNIND 1975 DEL 126]; Ajit Kumar Roy v. Satya Sola Dutt, AIR 1973 Cal 339 [LNIND 1972 CAL 175]; Ramesh Chand Base v. Gopeshwar Sharma, AIR 1977 All 38. 17. Tulsiram Shaw v. R.C.Pat Ltd., AIR 1953 Cal 160 [LNIND 1952 CAL 18]; Dwarka Prasad v. Central Talkies, AIR 1956 All 187 [LNIND 1955 ALL 167]; H.C.Gupta v. K.V. Ramana Rao, AIR 1985 AP 193 [LNIND 1983 AP 339]. 18. Abdul Sattar v. Rameshwar, AIR 1992 SC 2065. 19. Jogendro v. Dwarka Nath, (1888) ILR 15 Cal 681; Ismail Khan v. Kali Krishna, (1902) 6 Cal WN 134; Subadini v. Durga Charan, (1901) ILR 28 Cal 118; Lotaf Ali v. Peare Mohun, (1871) 16 WR 223; Rajoni Bihi v. Hafisonnissa, (1900) 4 Cal WN 572; Gobinda Chandra v. Dwarha Nath, (1915) 20 Cal LJ 455. 20. Madan & Co. v. Watirjaimr Chand, AIR 1989 SC 630 [LNIND 1988 SC 564]. 21. Kedar Nath v. Madhu Sudan, AIR 1923 Cal 682. 22. Oza Kumbhar Naran Ala v. Meta Nanalal Jethabhai, AIR 1988 Guj 5 [LNIND 1986 GUJ 178]; Mahant Madhamajji v. Ambalal Nagarji Naik, (1985) GLH 361. 23. Rajoni Bibi v. Haftsonnissa, (1900) 4 Cal WN 572; see also Bejoy Chard v. Kali Prasanna, AIR 1925 Cal 752; and Bodordoja v. Ajijuddin, AIR 1929 Cal 651. 24. Thakur Chandra Nandi v. Arun Kumar, AIR 1986 Cal 249 [LNIND 1985 CAL 243]. 25. Jitendra Nath v. Bijoy Lal Das, AIR 1976 Cal 476. A notice posted by ordinary post would raise a presumption under of the s. 114; see Sushil Kumar v. Ganesh Chandra, AIR 1958 Cal 251 [LNIND 1957 CAL 190]; Sukumar v. Naresh Chandra, supra; Achamma Thomas v. E.R. Fairman, AIR 1970 Mys 77; Fitter Peera Saheb v. Balachamira Rao, AIR 1972 Mys 14. This presumption is rebuttable, but is not rebutted by a mere denial of receipt, especially, when the similar notices sent on earlier occasions on the same address were admittedly received; see Green View Radio Service v. Laxmibai Ramji, AIR 1990 SC 2156; see also Shiv Dutt Singh v. Ram Doss, AIR 1980 All 280. 26. Interocean Shipping v. Lt. Col YR Pun, (1991) 45 DLT 221 [LNIND 1991 DEL 423]. 27. Harihar Banerji v. Ramsashi Roy, (1919) ILR 46 Cal 458. 28. Gauge Ram v. Phulwati, AIR 1970 All 448 (FB). 29. Sukumar v. Naresh Chandra, AIR 1968 Cal 49 [LNIND 1967 CAL 29]; Madan v. Wazir Jaivir Chand, AIR 1989 SC 630 [LNIND 1988 SC 564]. 30. United Commercial Bank v. Bhimsain Makkija, (1994) 1 RCR 479. 31. Gokul Chand v. Shib Charan, (1912) 9 All LJ 574; Chandmal v. Bachraj, (1883) ILR 7 Bom 474. 32. Permanand v. Anandi Bai, AIR 1974 Raj 65. 33. Rameshwar Lal v. Raghunath Das, (1990) 4 SCC 729. 34. Harihar Banerji v. Ramsashi Roy, (1919) ILR 46 Cal 458.

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(IN) Poonam Pradhan Saxena : Property Law 35. AEKKaliappa Nadar v. SVKRAMIRTHAVALAVANDAMMAL, AIR 1973 Mad 255 [LNIND 1972 MAD 269]. 36. Sushila Devi v. Manohar Lal, AIR 1985 All 178 [LNIND 1984 ALL 262]. 37. Nabina Chadha v. Usha Das, AIR 2011 Ori 5 [LNIND 2010 ORI 44]; Sashil Kumar v. Ganesh Chandra, AIR 1958 Cal 251 [LNIND 1957 CAL 190]; Punun Mal v. Durga Singh, AIR 1967 J&K 141; Amina Kkatoon v. Johra Bibi, AIR 1971 All 372; see also Jankiram v. Damodhar, AIR 1956 Nag 266. 38. Shamim Ahmad All v. Aziznl Rahman Khan, AIR 1974 All 354. 39. Ramanand v. Mulakh Raj, AIR 2010 (NOC) 921 (P&H) 40. Green View Radio Service v. Laxmibai Ramji, AIR 1990 SC 2156; Kulkarni Pattern Pot Ltd. v. Vasant Baburao Ashtekar, AIR 1992 SC 1097 [LNIND 1992 SC 48]. 41. Kulkarni Patterns Pvt. Ltd. v. Vansant Baburao Ashtekar, AIR 1992 SC 1092. 42. Biseswar Roy v. Pitambernath, 51 IC 44; Gumanmal v. Kanwar Lal, AIR 1971 Raj 273 [LNIND 1971 RAJ 54]. 43. Sushil Sharma v. 13th Addl District Judge Gaziabad, AIR 2000 All 249 [LNIND 2000 ALL 328]. 44. JMcSaffin v. LIC, AIR 1978 Cal 123 [LNIND 1977 CAL 59]; D Ennis v. Calcutta Vyapar Pratisthan Ltd., AIR 1991 Cal 152 [LNIND 1990 CAL 214]. 45. Chhedi Lal v. Munnu Sardar, AIR 1983 All 274. 46. V. Murlidhar v. S. Anjaiah Goud, AIR 2007 AP 347 [LNIND 2007 AP 473]; Bandu Machinery Pvt. Ltd. v. Om Prakash Sikka, AIR 2009 Del 33 [LNIND 2008 DEL 1228]. 47. U Thin Sin v. Kokye, AIR 1941 Rang 117; Adinath Bhattacharya v. Krishna Chandra, AIR 1943 Cal 474; Udaya Pratap v. Gourachundra Dyani, AIR 1937 Mad 656 [LNIND 1936 MAD 295]. 48. The expression ‘reserving a yearly rent refers to a lease which, on its proper construction, is a lease from year to year, see Jinny Copal v. Atmaram, (1890) ILR 14 Bom 319; Khuda Bakhsh v. Sheo Din, (1886) 2 All 405, a lease reserving a yearly rent but containing a clause enabling the lessee to surrender possession at will, is a tenancy at will and does not require registration; see Mathai v. Koohouseph, (1956) 2 Mad LJ 75. The reservation of a yearly rent creates a presumption that the lease is from year to year; but this presumption may be rebutted, having regard to the other parts of the instrument, see Sheikh Akloo v. Sheikh Emaman, (1917) ILR 44 Cal 403; Sarat Chandra v. Jadab Chandra, (1917) ILR 44 Cal 214; Durgi Nikarini v. Gobordhan Base, (1915) 19 Cal WN 525; Gobinda Chandra v. Dwarka Nath (1915) 19 Cal WN 489; Periaswami v. Arunjadeswaraswami Temple, AIR 1967 Mad 257 [LNIND 1966 MAD 44]. 49. The rule does not apply to an agreement for lease where it is sufficient if it is signed by the lessee only, see Radhabai v. Nayadu, AIR 1951 Nag 285. A lease, the registration whereof is not compulsory under s. 17(1)(d) of the Registration Act, 1908, becomes compulsorily registrable if reduced into writing by virtue of the second paragraph of s. 107 read with s 4(2) of the Act, see Sardar Amar Singh v. Surinder Kaur, AIR 1975 MP 230 [LNIND 1975 MP 103]; V Murlidhar v. S Anaiah Goud, AIR 2007 AP 347 [LNIND 2007 AP 473]; Bandu Machinery Pvt Ltd v. Om Prakash Sikka, AIR 2009 Del 33 [LNIND 2008 DEL 1228]. 50. A lease for a period of one year falls within the expression ‘all other leases and can be entered into by oral agreement, accompanied by delivery of possession, see Gordhan v. Ali Bux AIR 1981 Raj 206 [LNIND 1981 RAJ 23]. 51. Sumatibai Vaman v. Anand Balkrishna, (1949) ILR Bom 465. 52. Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, AIR 1977 SC 2149 [LNIND 1977 SC 261]. 53. Goodyear India Ltd. v. B.B. Jain, (1998) 75 DLT 620 [LNIND 1998 DEL 717]. 54. Massdak Hossin v. State of West Bengal, AIR 1998 Cal 270 [LNIND 1997 CAL 41]. 55. Narain Kumar v. Onkar Nath, AIR 1973 All 257. 56. Burmah Shell Oil Distributing v. Khahi Midhat Noor, AIR 1988 SC 1470 [LNIND 1988 SC 203]. 57. Samir Mukherjee v. Davinder Kumar Bajaj, (1998) 44 DRJ 673 [LNIND 1998 DEL 66]. 58. Secretary of State v. Nistarini Annie Miner, AIR 1927 Pat 319; see also G.M. Southern Railway v. Chintadripet Boys US School, AIR 1998 Mad 180 [LNIND 1997 MAD 480]. 59. Benoy Krishna v. Bimwar Sanyal, (1948) 1 Cal 520; Katai Mia v. Sukhamayee, AIR 1959 Assam 60. 60. Shyam Lal v. Deepa Das Chela Ram Chela Garib Das, AIR 2011 (NOC) 187 (P &H); Raj Kishore Prasad v. Subak Narain, AIR 1959 Pat 89; Bramhayya v. Patappa, AIR 1948 Mad 27; Ram Nath v. Jojan Mandal, AIR 1964 Pat 1; CSChandrasekharan Nair v. K. George, AIR 1985 Ker 131 [LNIND 1984 KER 205]; but see however, Sankuralri Veera Venkata Naga Mohan Raghavadevi v. Vedulla Anjaeyulu, AIR 2010 (NOC) 147 (AP); wherein it was held that the provisions of Sec. 107 do apply to agricultural leases as well. 61. Ram Nath v. Jojan Mandal, AIR 1964 Pat 1; CSChandrasekharan Nair v. K. George, AIR 1985 Ker 131 [LNIND 1984 KER 205].

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(IN) Poonam Pradhan Saxena : Property Law 62. State of Uttar Pradesh v. Phool Chand Agarwal, AIR 1982 All 260; see also M.Mohammad v. Union of India, AIR 1982 Bom 443. 63. Abdulahed M. Abdul Samad v. G.G.Bardoliwala, AIR 1975 Guj 1 [LNIND 1995 GUJ 161]; Alakan v. ARAARUMUGAM. AIR 1933 Rang 262; Mokan Lal v. Genda Singh AIR 1943 Lah 127; Parameswarlal v. Dalu Ram, AIR 1957 Assam 188; Uda Ram v. Tej Karan, AIR 1975 Raj 147 [LNIND 1975 RAJ 12]. 64. Alauddin Ahmed v. Aziz Ahmad, AIR 1934 Pat 369; Zahoor Ahmad v. State of Uttar Pradesh, AIR 1965 All 326. 65. Uda Ram v. Tej Karan, AIR 1975 Raj 147 [LNIND 1975 RAJ 12]; Taj Din v. Abdul Rahim, AIR 1939 Lah 423; Neelakantan Sridharan v. Subba Bhaktan Narayana Bhaktan, (1975) KLT 128 [LNIND 1974 KER 161]. 66. Usha Ranjan Ray Burman v. Sova Das, AIR 1990 Cal I; see also S.K. Gupta v. R.C.Jain, AIR 1984 Del 187 [LNIND 1983 DEL 37], Ramayan v. Patna Improvement Trust, AIR 1972 Pat 7. 67. Bajaj Auto Ltd. v. Behari Lal Kohli, (1989) 4 SCC 39 [LNIND 1989 SC 384], 43; Sajid Mia Majmudar v. Abdul Sattar Gani, AIR 1954 Assam 102; Chitrilapatti Mathai v. Chittilapalli Kochuseph, (1956) 2 Mad LJ 75; Budh Ram v. Ralla Ram, AIR 1987 SC 2078. 68. V. Murlidhar v. S. Anaiah Goud, AIR 2007 AP 347 [LNIND 2007 AP 473]. 69. Pieco Electronics & Electricals Ltd. v. Tribeni Devi, AIR 1990 Cal 135 [LNIND 1989 CAL 316]; see Satish Chand Makhan v. Govardhan Das Vyas, AIR 1984 SC 143. 70. Biswabani Pvt. Ltd. v. Santosh Kumar, AIR 1980 SC 226 [LNIND 1979 SC 373]; Budh Ram v. Ralla Ram, AIR 1987 SC 2078. 71. Weney DSOUZA v. G.A.Canceicao, (1991) 3 SCC 14. The rule applies equally to the renewal of leases, see Rasiklai M. Mehta v. Hindustan Photo Films Manufacturing Co. Ltd., AIR 1976 Mad 194 [LNIND 1975 MAD 269]. 72. Madhya Bharat notification, notification no. 434 A, by Government Gazette 1910, Pt 1 p. 59; Notification no. 231 (v) L/511–53 MB Gazette, 1954, Ft I-B, p 615. See also Vaidyanathan Nadar Anantha Nadar v. Kochuraman Lakshmanan, AIR 1980 Ker 297. 73. Provesh Chandra Dalui v. Biswanath Banerjee, AIR 1989 SC 1834 [LNIND 1989 SC 209]; Kwality Pulp & Paper Mills, Valsad v. The Gujarat Industrial Development Corpn., AIR 1988 Guj 104 [LNIND 1987 GUJ 69]. 74. Lakhmichund v. Ratna Ibai, AIR 1927 Bom 115. 75. Udhab Chandra v. Narain, AIR 1920 Pat 611; Ganda Singh v. Secretary of State, AIR 1934 Pesh 101; Manohar Lal v. Bengal Potteries, AIR 1958 Pat 457. 76. Zamindar of Vizianagram v. Behara Suryanarayana, (1902) ILR 25 Mad 587; Secretary of State v. Venkayya, (1917) ILR 40 Mad 910; Kandasami v. Ramasami, (1919) ILR 42 Mad 203; Abdul Karim v. Upper India Bank, (1918) PR 19. 77. Razia Begum v. Shaikh Muhammad, AIR 1926 Pat 508; Puma Nand v. Kamala, AIR 1965 Pat 39. 78. Ahamadar Rahaman v. Jaminiranjan, AIR 1930 Cal 385. 79. SN Bibra, v. Stephen Court, AIR 1966 SC 1361 [LNIND 1966 SC 41]; Ram Lal v. Dhirendra Nath, AIR 1943 PC 24. 80. Jogesh Chandra v. Emdad Meah, AIR 1932 PC 28. 81. Durga Prasad Singh v. Rajendra Narayan Singh, (1913) 41 Cal 493; Arunachandra v. Shamsul Huq, AIR 1931 Cal 537 (FB). 82. Raichurmatham Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766 [LNIND 2004 SC 462]. 83. Katyayani Debi v. Udoy Kumar Das, AIR 1925 PC 97. 84. Gujadhar v. Rambhau, AIR 1938 Nag 439. 85. Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857 [LNIND 1985 SC 85]. 86. Govind Monee v. Dino Bundhoo, 15 WR 87; Attimoolah v. Shaikh Saheoolah, 15 WR 149; Bhuggobut Singh v. Doorg Bijoy Singh, 16 WR 95; Ramnidhee Munjee v. Parbutty, (1880) ILR 5 Cal 823; Golam Alt v. Kali Krishna, (1881) ILR 7 Cal 479; Brojendra Coomar v. Woopendra Narain, (1882) ILR 8 Cal 706; Gourhari Kaiburto v. Bhola Kaiburto, (1894) ILR 21 Cal 233 KB; Assanullah v. Mohini Mohan Das, (1899) ILR 26 Cal 739; Mutura Kanto v. Meanjan Mundul, (1979) 5 Cal LR 192; Amjad Ali v. Kaderjan, (1902) 13 Cal WN 269; Ahmud Bepari v. Tohi Mahomed, (1909) 13 Cal WN 267; Madhu v. Sabar, (1910) 14 Cal WN 681; Manjaya v. Tammaya, AIR 1924 Bom 449; Secretary of State v. Kadirikuiti, (1890) ILR 13 Mad 369. 87. Gooroo Doss Roy v. Issur Chunder Base, 22 WR 246; Nuddyarchand Shaha v. Meajan, AIR 1925 Cal 1114; Mutkurakoo v. Orr, (1911) 21 Mad LJ 615. 88. Munnuswamy v. Muniramiah, AIR 1965 AP 167 [LNIND 1964 AP 52]. 89. Kundan Lal v. Shamshad Ahmad, AIR 1966 All 225. 90. V.Kalpakam Amma v. Muthurama Iyer Muthukrisha Iyer, AIR 1995 Ker 99 [LNIND 1994 KER 215]. 1.

George J. Ovungal v. Peter, AIR J991 Ker 55; Dhruv Dev v. Harmohinder Singh, AIR 1968 SC 1024 [LNIND 1968 SC 59]; Hind Rubber Industries Pvt Ltd. v. T.M.Bagasarwalla, AIR 1996 Bom 389 [LNIND 1996 BOM 521]; see also Jiwanlal & Co. v. Manot

Page 65 of 79

(IN) Poonam Pradhan Saxena : Property Law & Co., 64 Cal WN 932; Rahim Bux v. Muhammad Shaft, AIR 1971 All 16 [LNIND 1969 ALL 57]; Shyam Kumari v. Ezaz Ahmed, AIR 1977 All 376. 2.

Kshitisk Chandra v. Shiba Rani, AIR 1950 Cal 441.

3.

V.Kalpakam Amma v. Muthurama Iyer Muthukriskna Iyer, AIR 1995 Ker 99 [LNIND 1994 KER 215].

4.

Mushe Ali Khan v. Mohammed Siddiqe, AIR 1981 All 307.

5.

Kunhayen Haji v. Mayan, (1894) ILR 17 Mad 98.

6.

Dhuramsey v. Ahmedbhai, (1899) ILR 23 Bom 15.

7.

Subramania Pattar v. Kattamballi, (1920) ILR 43 Mad 132.

8.

Rahim Bux v. Mohammed Sharif, AIR 1971 All 16 [LNIND 1969 ALL 57].

9.

Girdaridoss v. Ponna Pillai, (1920) 39 Mad LR 233.

10. Abdul Hashem v. Balahari, AIR 1952 Cal 330. 11. Tarabai Jivanlal v. Padamchand, AIR 1950 Bom 89 [LNIND 1949 BOM 15]. 12. Hari Laxman v. Secretary of State, AIR 1928 Bom 61. 13. Ramanada v. T.S.A. Hamid, AIR 1963 Mad 94 [LNIND 1962 MAD 104]. 14. Suramma v. Sataramaswamy, AIR 1957 Andh Pra 71. 15. Damodar Coal Co. v. Harmook Marwari, (1915) 19 Cal WN 1019. 16. Bijoy v. Howrah Amta Light Rly, AIR 1923 Cal 524; Govindasamy v. Pataniappa, AIR 1925 Mad 833 [LNIND 1924 MAD 353]. 17. Doraipandi Konar v. Sundara Tartar, AIR 1970 Mad 291 [LNIND 1969 MAD 74]; Lakhmichand v. Ratanbai, AIR 1927 Bom 115; Narayan Rajaram v. Shankar Diwakar, AIR 1955 Nag 202; Steuart & Co. Ltd. v. Mackertich, AIR 1963 Cal 198 [LNIND 1962 CAL 49]. 18. Lakhmichand Khetsey v. Ratanbai, AIR 1927 Bom 115. 19. Bai Monghibai v. Doongersey, (1917) 19 Bom LR 887 [LNIND 1917 BOM 80]. 20. Villabai Ammal v. S Radhakrishnan, AIR 1986 Mad 173 [LNIND 1984 MAD 274]. 21. Bai Monghibai v. Dongersey, (1917) 19 Bom LR 887 [LNIND 1917 BOM 80]. 22. Faiyazunnissa v. Bajranj, AIR 1927 Oudh 609. 23. Azfrarudin v. Syed Zahid Hussain, AIR 1979 All 435; Basant Lal v. Boora Ram, AIR 1963 All 568 [LNIND 1962 ALL 194]. 24. Mancherji v. Dinbai, AIR 1941 Bom 260. 25. Iswara v. Ramappa, AIR 1934 Mad 658 [LNIND 1934 MAD 101]. 26. Bepin Behari v. Kalidas, (1901) 6 Cal WN 336. 27. N.A.Munavar Hussain v. E.R.Narayanan, AIR 1984 Mad 47 [LNIND 1983 MAD 236]. 28. Gur Prasad v. Mehdi Husain, AIR 1942 Oudh 460. 29. Cook & Co. v. C.L. Phillips, AIR 1931 Cal 133. 30. Bhatia Co-operative Housing Society Ltd. v. D.C.Patel, AIR 1953 SC 16 [LNIND 1952 SC 64]. 31. Chhedi Manjihi v. Mahipal, AIR 1951 Pat 600. 32. Bastacolla Colliery Co. Ltd. v. Bandku Beldar, AIR 1960 Pat 344 (FB); Darbari Lal v. Raniganj Coal Assn., AIR 1944 Pat 30; Hiralal Rewani v. Bastacolla Colliery Co. Ltd., AIR 1957 Pat 331; Mana Dim v. Malki Ram, AIR 1961 All 84 [LNIND 1960 ALL 102]. 33. Bishan Das v. State of Punjab, AIR 1961 SC 1570 [LNIND 1961 SC 189]; Atmakur Vmkatasubbiah Chetty v. Thirupurasundari Ammal, AIR 1965 Mad 185 [LNIND 1964 MAD 60]; Mohammed Abdul Kadar v. The District Collector of Kanyakumari, AIR 1972 Mad 56 [LNIND 1971 MAD 108]; Park View Enterprises v. State of Tamil Nadu, AIR 1990 Mad 251 [LNIND 1989 MAD 399]. 34. Lakshmipat v. Larsen & Toubro, AIR 1951 Bom 205. 35. Ismail Kani Rowthan v. Nazarali Sahib, (1903) ILR Mad 211. 36. Jugrajsa v. Umrao Singh, AIR 1950 MB 39. 37. Deoki Nandan v. Dhian Singh, (1886) ILR 8 All 467; Janki v. Sheoadahar, (1901) 22 All 211.

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(IN) Poonam Pradhan Saxena : Property Law 38. Imdad Khatun v. Bhagirath, (1888) ILR 10 All 159. 39. Ganesh Subrayya v. Hanmam Vithoba, AIR 1950 Bom 100. 40. Rangraju v. Sitaramayya, AIR 1955 Andh Pra 62. 41. Shaikh Hussain v. Gowardhandas, (1896) ILR 20 Bom 1; Sundareswarar Devastanam v. Marimuthu, AIR 1963 Mad 369 [LNIND 1962 MAD 242]. 42. Venkalauaragappa v. Thirumalai, (1887) ILR 10 Mad 112. 43. Narayan Das Khettry v. Jatindra Nath, AIR 1927 PC 135. 44. Narayanan v. Krishna Patter, (1914) 26 Mad LJ 348. 45. Pattabhimma Rao v. Sri Ramanuja G&R Factory, AIR 1984 Andh Pra 176. 46. The rule does not apply to tenancies of homestead land in Bengal created before the passing of the Act and these are not transferable, except by custom or by a condition in the contract, see Hari Nath v. Raj Chandra, (1897) 2 Cal WN 122; Hanuman Prasad v. Deo Charan, (1908) 7 Cal LJ 309; Madhu Sudan v. Kamini, (1905) ILR 32 Cal 1023; Sarada Kama v. Nabin Chandra, AIR 1927 Cal 39. 47. Wests Palm Press Co. Ltd. v. Govindnaik Gurunathunaik Kalghatgi, AIR 1984 NOC 274 (Kant) 48. Jaikisandas v. Abdul Rahman, AIR 1975 Guj 205; Hunsraj v. Bejoy Lal Seal, AIR 1930 PC 59. 49. Harish Chunder Ray v. Sree Kalee, (1874) 22 WR 274; Devassy Thommen v. Subramonia Iyer, AIR 1955 Tr & Coch 223. 50. Hunsraj v. Bejoy Lal Seal, AIR 1930 PC 59; Ram Kinkar v. Satya Charon, AIR 1939 PC 14; Nanjappa v. Ranga Swami, AIR 1940 Mad 410 [LNIND 1939 MAD 312]. 51. Treasurer of Charitable Endowments v. Tyabji, AIR 1949 Bom 349; Mohamad Salim v. Mohamad Ali, AIR 1987 SC 2173 [LNIND 1987 SC 610]. 52. Kewal Ram v. Mangu Mal, AIR 1974 Raj 201 [LNIND 1974 RAJ 72]. 53. Bholanath v. Raja Durga, (1907) 12 Cal WN 724; Ardeshar v. K.D. & Bros., AIR 1925 Bom 330; Chimanlal v. Sumersinghji, AIR 1961 Raj 17 [LNIND 1960 RAJ 198]. 54. Sasi Bhushun v. Tara Lal, (1895) ILR 22 Cal 494; Manmatha Nath v. Bataichandra, AIR 1924 Cal 359; Satya Niranjan v. Sarajubala Debt, AIR 1930 PC 13; Devidas Bhatta v. Ratnakana Rao, AIR 1966 Mys 147. 55. Bombay Municipal Corpn. v. Vasantlal, AIR 1938 Bom 360; Saradindu v. Kunja Kamini Ray, AIR 1942 Cal 514. 56. Thethalan v. Eralpad Rajah, (1917) 40 Mad 1111; Bombay Municipal Corpn. v. Vasantlal, AIR 1938 Bom 360; Saradindu v. Kunja Kamini Ray, AIR 1942 Cal 514; Krishna Bhatt v. Narayan Acharya, AIR 1949 Mad 618. 57. Digbijoy Roy v. Shaikh Ata Rahman, (1912) 17 Cal WN 156. 58. Sukhdeo Pandey v. Rameshwar Prasad, AIR 1939 Pat 522; Ardeshar v. K.D. & Bros., AIR 1925 Bom 330. 59. Manmatha Nath v. Nalinaksha, AIR 1925 Cal 423. 60. Treasurer of Charitable Endowments v. Tyabji, AIR 1949 Bom 349. 61. Nanjappa v. Ranga Swami, AIR 1940 Mad 410 [LNIND 1939 MAD 312]. 62. Mahendra Saree Emporium v. G.V. Sriniwas Murthy, (2005) 1 SCC 481 [LNIND 2004 SC 861]; Aroti Das v. Union of India, AIR 2008 (NOC) 304 (Del). 63. South Asia Industries v. Sarup, AIR 1966 SC 546. 64. Kamala Ranjan v. Baijnath, AIR 1950 SC 1 [LNIND 1950 SC 13]. 65. Ducasse v. Cohen, (1921) ILR 48 Cal 176. 66. Shankar Prasad v. State of Madhya Pradesh, AIR 1965 MP 153 [LNIND 1964 MP 85]. 67. Banarasi Dass v. Shakuntala, AIR 1989 Del 184 [LNIND 1988 DEL 252]; see also Udhoo Doss v. Prem Bakat, AIR 1964 All 1 [LNIND 1963 ALL 37]; Murli Dhar v. State of Uttar Pradesh, AIR 1974 SC 1924 [LNIND 1974 SC 202]; Shankerlal Gupta v. Jagdishwar Rao, AIR 1980 AP 181 [LNIND 1979 AP 123]; Dwijendra Nath v. Rabindra Nath, AIR 1987 Cal 289 [LNIND 1986 CAL 380]; Dhuli Chand v. Janminder Dass, (1990) 1 SCC 169 [LNIND 1989 SC 616]; Ramsaran v. Pyarelal, AIR 1996 SC 2361 [LNIND 1996 SC 108], wherein it held that mere knowledge of the landlord about occupation of the tenanted premises by a subtenant and acceptance of rent for the tenanted premises tendered by the tenant in the name of the sub-tenant will not create subtenancy unless induction of such tenant is made with the written consent of the landlord. 68. Venkatacharuyulu v. Venhatasubba, AIR 1926 Mad 55 [LNIND 1925 MAD 23]. 69. Nur Mohammad v. Ahmad Alikhan, AIR 1936 Lah 815.

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(IN) Poonam Pradhan Saxena : Property Law 70. Nasiruddin v. Umerji Adam & Co., AIR 1941 Bom 286; Jatadhar v. Shamsul, (1912) 16 Cal LJ 522; Re Maung 186 IC 69. 71. Krishnarao v. Manaji, (1874) 11 Bom HC 106; Hiralal v. Agarchand, AIR 1957 MP 5 [LNIND 1953 MP 27]. 72. Pramada Nath Roy v. Ramani Kama Roy, 35 IA 73, (1907) 35 Cal 331; Nepal Chandra Ghose v. Mohendra Nath, (1904) ILR 31 Cal 707; Akshoy Kumar v. Gopal Kamini Debi, (1906) ILR 33 Cal 1010; Girish Chunder v. Chhatradhar Ghose, (1905) 6 Cal LJ 379. 73. Fakir Lal Goswami v. Bonnerji, (1899) 4 Cal WN 324; Allibhoy v. Gordhandas, AIR 1929 Sau 13. 74. Bibra S.N. v. Stephen Court, AIR 1966 SC 1361 [LNIND 1966 SC 41]; Gopalji Maharaj v. Shiam Lal, AIR 1952 All 125 [LNIND 1950 ALL 256]; Nilkantha Pati v. Kshitish Chandra, AIR 1951 Cal 338. 75. Deoki Koer v. Sheo Prasad Singh, AIR 1939 Pat 356; Sajjad Ahmad v. Jrailakhya Hath, AIR 1928 Cal 479; Kaiyayani Debi v. Udoy Kumar, AIR 1925 PC 97. 76. Bibi Samsunehar v. Hari Nath, AIR 1943 Cal 91. 77. Kali Prasanna v. Dhananjai Ghose, (1884) ILR 11 Cal 625; Krista Das v. Abdul Karim, AIR 1921 Cal 220; see also Ram Ran Bijaya v. Aprup Tewary, AIR 1942 Pat 466, a case relating to agricultural land; Medini Kumar v. P.C.Mallick, AIR 1948 Pat 322; Vishnu Bhasmarithaya v. Kunnungal Kannan, AIR 1962 Ker 239. 78. Arunchandra Singh v. Shamsul Huq, AIR 1931 Cal 537. 79. Uma Sunkur v. Tarini Chunder, (1882) 9 Cal 571; Ganu Dadu v. Panditrao, AIR 1930 Bom 592. 80. East India Distilleries & Factories v. Mathias, AIR 1928 Mad 1140 [LNIND 1928 MAD 146]; Girdaridoss v. Pound Pillui, (1920) 39 Mad LJ 233. 81. Mukhand Nemi Chand v. Basdeo Ram Sarup, AIR 1926 All 695. 82. Eashwar v. B. Sudershan, AIR 1984 AP 4. 83. Laxmi Narain Gauri Shankar v. Gopal Krishna Kanoria, AIR 1987 SC 8. 84. Ezra Meyer Aaron Cohen v. Kumar Debendra, AIR 1928 Cal 89. 85. Debendra Lal v. Cohen, AIR 1927 Cal 908. 86. Mahavaraya Udpa v. Dasa Tantri, AIR 1964 Mys 179. 87. Rameshwar Roy v. Baidhendra Kinbas Roy, AIR 1998 Cal 292 [LNIND 1998 CAL 158]. 88. Nabin Das v. Koylas Chunder, (1911) 12 Cal LJ 483; Jagannatha Charry v. Rama, (1905) ILR 28 Mad 238; Shyama Churn v. Mahomed Ali, (1908) 13 Cal WN 835; Akhil Chandra Dey v. Akhil Chandra, (1911) 15 Cal WN 715. 1.

Damodar Prasad v. Lachmi Prasad, AIR 1928 AP 354; Ghulam Husain v. Muhammad Husain, (1904) 31 All 271; Tiruvengada v. Venkatachala, (1916) ILR 39 Mad 1042; Bissesuri Dabea v. Baroda Kanta, (1883) 10 Cal 1076; see also Nabekishore Sahu v. East India Arms Co., AIR 1998 Ori 95 [LNIND 1998 ORI 233].

2.

V. Pathi v. S. Udayar, AIR 1974 Ker 132 [LNIND 1973 KER 164].

3.

Girish Chandra v. Sirish Chandra, (1904) 9 Cal WN 255 ; see also Manmohandas v. Bishnudas, AIR 1967 SC 643 [LNIND 1966 SC 252].

4.

Damodaram v. Loganatha, AIR 1956 Mad 54.

5.

Mehra v. State, (1957) 55 All LJ 917.

6.

Gur Prasad v. Mehdi Husain, AIR 1942 Oudh 460.

7.

Barada Prasad v. Bhupendra Nath, AIR 1924 Cal 56.

8.

Pokar v. Lakshman, AIR 1951 Raj 108.

9.

Parvati Kevolram Moorjani v. Madanlal Anraj Porwal, AIR 1988 Bom 354 [LNIND 1987 BOM 215]; see also Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144 [LNIND 1992 CAL 349]; Om Pal v. Anand Swarup, (1988) 4 SCC 545 [LNIND 1988 SC 498].

10. Kedarnath Jhunjhunwala v. State of Bihar, AIR 2000 Pat 123; Hari Rao v. N Govindachari, (2005) 7 SCC 643; Dattatrey v. Gulabrao, (1978) Mah LJ 545. 11. Monindro Chunder Sirkar v. Muneeroodden Biswas, (1873) 20 WR 230 (express covenant not to dig a tank); Tarini Charan Base v. Debnarayan Mistri, (1872) 8 Beng LR App 69; Noyna Misser v. Rupikun, (1883) ILR 9 Cal 609. 12. Bholai v. Rajah Bansi, (1881) 4 All 174; Lakshmana v. Ramachandra, (1887) ILR 10 Mad 351; see for a contrary opinion Venkayya v. Ramachandra, (1899) ILR 22 Mad 39; Krishna Doss v. Venkatappi, (1899) 9 Mad LJ 146. 13. Beharilal v. Chandrawati, AIR 1966 All 541.

Page 68 of 79

(IN) Poonam Pradhan Saxena : Property Law 14. Keshavji v. Sulochanabai, AIR 1977 Bom 7 [LNIND 1975 BOM 250]. 15. Gurdial Batra v. Rajkumar Jain, AIR 1989 SC 1841 [LNIND 1989 SC 340]; Mohanlal v. Jai Bhagwan, (1988) 2 SCC 474 [LNIND 1988 SC 190]; Ram Saroop v. Janki Dass Jaikumar, AIR 1976 Del 219 [LNIND 1975 DEL 175]; Raghavan Filial v. Sainaba, (1977) KLT 417; Mono Ranjan Dasgupta v. Suchitra Ganguly, AIR 1989 Cal 14 [LNIND 1988 CAL 37]; Lakshman Chandra Saha v. Bansari Mukherjee, AIR 1992 Cal 148 [LNIND 1991 CAL 349]. 16. Kacharulal Agarwal v. Bhikam Chand Kothari, AIR 2008 (NOC) 194(Chh). 17. Atul Chandra v. Sonatan Daw, AIR 1962 Cal 78 [LNIND 1961 CAL 38]. 18. Surya Properties Pvt. Ltd. v. Bimalendu Nath, AIR 1964 Cal 1 [LNIND 1963 CAL 100](FB); see Surya Properties Pvt. Ltd. v. Bimalendu Nath, AIR 1965 Cal 408 [LNIND 1964 CAL 57]; Ratnamala Dasi v. Ratan Singh Bawa, AIR 1990 Cal 26 [LNIND 1988 CAL 124]; Venkatlal G. Pittie v. Bright Bros (Pvt) Ltd., AIR 1987 SC 1939 [LNIND 1987 SC 509]; Khureshi Ibrahim v. Ahmed Haji, AIR 1965 Guj 152 [LNIND 1964 GUJ 92]; Ramji Virji v. Kadarbhai, AIR 1973 Guj 110; Ali Saheb Abdul Latif v. Abdul Karim, AIR 1981 Bom 253 [LNIND 1980 BOM 208]. 19. Edmound Francis Heberlet v. Fatima Khatoon, AIR 2011 Cal 13 [LNIND 2010 CAL 34]. 20. Venkatlal G Pittie v. Bright Bros (Pvt) Ltd., AIR 1987 SC 1939 [LNIND 1987 SC 509]. 21. Dukari Saha v. Kumarish Chandra Garai, AIR 1990 Cal 143 [LNIND 1989 CAL 165]; Leena Roy Choudhary v. Indumati Base, AIR 1980 Pat 120. 22. Edmound Francis Heberlet v. Fatima Khatoon, AIR 2011 Cal 13 [LNIND 2010 CAL 34]. 23. Dayanand Gupta v. Govindlal Bangur, AIR 2007 Cal 247 [LNIND 2007 CAL 419]. 24. Bharat Bhushan Deva v. State of Bihar, AIR 2008 Pat 29. 25. Lal Sahoo v. Deo Narain, (1878) ILR 3 Cal 781; Jugut Chunder v. Eshan Chunder, (1874) 24 WR 220. 26. Ratnamala Dasi v. Ratan Singh Bawa, AIR 1990 Cal 26 [LNIND 1988 CAL 124]. 27. Venkatesh Narayan v. Krishnaji Arjun, (1884) ILR 8 Bom 160; S. Abraham v. Nathavan, AIR 1952 Tr & Coch 359. 28. Thagarammal v. Peoples Charity Fund, AIR 1978 Kant 125 [LNIND 1978 KANT 38]; see also Raja Laxman Singh v. State of Rajasthan, AIR 1988 Raj 44. 29. Ram Gopal v. Parmeshri Dos, AIR 1924 Lah 474. 30. Marthandammal v. Azimunnissa Begum, AIR 1954 Mad 92 [LNIND 1952 MAD 160]. 31. Sundermull v. Ladhuram, AIR 1924 Cal 240. 32. Narain Doss v. Dharam Das, AIR 1932 Lah 275; Sunder Singh v. Ram Saran Das, AIR 1933 Lah 61. 33. State of West Bengal v. Birendra Nath Basunia, AIR 1955 Cal 601 [LNIND 1955 CAL 46]; see also Bhagat Rajinder Kumar Sawhney v. State of Jammu & Kashmir, AIR 1960 J&K 50 (FB). 34. Saraswati Gir v. Dhanpal Singh, AIR 1992 P&H 13. 35. P.S.Bedi v. Project Equipment Corpn. of India, AIR 1994 Del 25 [LNIND 1993 DEL 311]. 36. Gulam Mohiuddin v. Dayabhai, AIR 1923 Bom 398; Obedul Rahman v. Darbari, AIR 1933 Lah 509. 37. Baliaramgri v. Vasudev, (1898) ILR 22 Bom 348; but see Sita Ram v. Mohmmnad Mehdi, AIR 1959 Pat 139. 38. Meharmal v. Deputy Commr of Bilaspur, AIR 1954 Nag 305. 39. Ethirajulu Naidu v. Ranganathan Chetti, 72 IA 72. 40. Madan Lal v. Bhai Anand Singh, AIR 1973 SC 721 [LNIND 1972 SC 493]. 41. Nemai Basak v. Kalyani Rakshit, AIR 2005 Cal 163 [LNIND 2004 CAL 328]; Krishnadas v. Gangla, AIR 1951 Mys 292. The provision is in nature of an exception to the rule that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premise from the tenant, and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned, subject of course, to the other covenant running with the land, see Sumant Chandra Mishra v. Anjali Ghatak, AIR 1993 Cal 275 [LNIND 1993 CAL 199]. 42. Iswara v. Ramappa, AIR 1934 Mad 658 [LNIND 1934 MAD 101]. 43. Kannyan Baduvan v. Alikutti, (1919) ILR 42 Mad 603. 44. Manickam Pillai v. Ratnasami Nadar, (1917) 33 Mad LJ 684; Parbhu Ram v. Tek Chand, (1919) 1 Lah 241. 45. Mujawar v. Fazlur Rehman, AIR 2008 Kant 32 [LNIND 2007 KANT 582]; P. Rajamani Gurukal v. Rajagopalan, AIR 2010 Mad 197 [LNIND 2010 MAD 1246].

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(IN) Poonam Pradhan Saxena : Property Law 46. Ramachandra v. Sheikh Hussain, (1901) 3 Bom LR 679. A fresh attornment by the lessee to the landlords assignee is not necessary, see Kalawati Tripathi v. Damayanti Devi, AIR 1993 Pat 1. 47. Provati Devi v. Bokul Chandra Naih, AIR 1981 Gau 52. 48. Vishveshwar v. Mahableshwar, (1919) 43 Bom 28 ; see also NMEngineer v. Narendra Singh, Virdi AIR 1995 SC 448. 49. Vasant Kumar Radha Kishen Vora v. The Board of Trustees of the Port of Bombay, AIR 1992 SC 14. 50. Raj Kumar Dutta v. Bimal Kumar Dhar, AIR 2008 Cal 190 [LNIND 2008 CAL 345]. 51. Swaroop Devi v. Murti Bhagwan Satya Narain Temple of Satya Narainji, AIR 2008 (NOC) 491 (Raj); Achal Mishra v. Rama Shanker Singh, (2005) 5 SCC 531 [LNIND 2005 SC 360]. 52. Kannyan Baduvan v. Alikutti, (1919) ILR 42 Mad 603; Devsay George v. Lekshmi Amma, AIR 1956 TC 265. 53. B.P.Pathak v. Riyazuddin (Dr.), AIR 1976 MP 55 [LNIND 1975 MP 22]. 54. Korapalu v. Narayana, (1914) 38 Mad 445; Badri Prasad v. Shyam Lal, AIR 1963 Pat. 55. S.K. Sattar v. Mohamad Choudhary v. Goundappa Ambadas Bukate, AIR 1997 SC 998 [LNIND 1996 SC 1681]. 56. Barjorji v. Shripatprasadji, AIR 1927 Bom 145. 57. Havu v. Ganapati, AIR 1930 Bom 329. 58. Manickam Pillai v. Ramasami Nadar, (1917) 33 Mad LJ 684; Prabhu Ram v. Tek Chand, (1919) 1 Lah 241. 59. Krishna Gopal v. Laxminarayan, AIR 1990 MP 37 [LNIND 1989 MP 12]. 60. Mahboob Ullah v. Jwala Prasad Kajriwal, AIR 1974 All 413. 61. Hafiz Mohammad v. Masoodbi, AIR 1991 MP 23 [LNIND 1990 MP 253]. 62. See The Transfer of Property Act 1882, s. 109, see NMEngineers v. Narendra Singh Virdi, AIR 1995 SC 448; Ram Tahal Modi v. Ratan Lal, AIR 1989 Pat 13 (DB). 63. See also the General Clauses Act 1897, s. 9(1)—the rule applies when a time or period is limited by the lease and the period is expressed to commence from a particular day, see Calcutta Landing and Shipping Co. v. Victor Oil Co., AIR 1944 Cal 84. These rules do not apply in Punjab, see Mul Raj v. Prem Chand, AIR 1955 Punj 238, and apply only to written leases only; see Calcutta Landing and Shipping Co. v. Victor Oil Co., AIR 1944 Cal 84; see also Kedar Nath v. Ramendra Nath, AIR 1946 Cal 460; Chand Mahomed v. Munaza, (1950) ILR Nag 407, wherein it was held that it can apply to an oral leases also. 64. Garushi Lal v. Snehalata Dassi, AIR 1947 Cal 68; see Haralal Das v. Pashupati Charan, AIR 1955 Cal 226 [LNIND 1954 CAL 70], where a lease for years expressed to commence from the first day of a particular year also expressly stipulates that the lease is to terminate with the end of the last year of the term, such term is an express agreement to the contrary; see Deb Da and Lala v. Ahdul Gani, (1938) ILR 2 Cal 134. 65. Nanda Rani v. Brojo Mohan Kundu, AIR 1986 Cal 279 [LNIND 1985 CAL 42]. 66. Janaki Nath v. Dina Nath, AIR 1931 All PC 207; Kailash Chandra v. Bejoy Kama, (1919) 3 Cal WN 190; Raja of Vizianagram v. Maharaja of Jaipur, AIR 1944 Mad 518; Amarsingh v. Hoshiar Singh, AIR 1952 All 141 [LNIND 1950 ALL 260]; Sunder Singh v. Arjun Singh, AIR 1947 Ajm 38. 67. P.Krishnaiah Setty v. A.V.Laxshmana Rao, AIR 1952 Mys 139. 68. Kishan Chand v. Sayeeda Khatoon, AIR 1983 Pat 253. 69. Benoy Krishna Das v. Salsiccioni, AIR 1932 PC 270; see also Rahmat Ullah v. Md. Hussain, AIR 1940 All 444; Susil Chunder Neogy v. Birendrajit, Shaw AIR 1934 Cal 837; Charu Chandra v. Bankim Chandra, (1938) 42 Cal WN 1115; Gastho Behari v. Orniyo Prasad, AIR 1960 Cal 361; Murlidhar Garodia v. Purshottam Lal, AIR 1961 Cal 175 [LNIND 1960 CAL 45]. 70. The recitals in the preamble to the lease cannot control its express terms and covenants laid down in the operative part of the document, see Mufti Mohammad v. Rashkeyjahan, AIR 1977 All 135. 71. Shaikh Faqir Baksh v. Murli Dhar, AIR 1931 PC 63. 72. K.M. Mohan v. District Collector, Vellore, AIR 2006 Mad 65 [LNIND 2005 MAD 1095]; Vithalbhai Pvt. Ltd. v. Union of India, AIR 2005 SC 1891 [LNIND 2005 SC 258]; Union of India v. Jagdish Kaur, AIR 2007 All 67; Cordcell Pvt. Ltd. v. Marazaria Products Pvt. Ltd., AIR 2007 Karn 162; M.C. Mohammed v. Gowramma, AIR 2007 Karn 46; Prithvi Raj Bhalla v. Industrial Cable (India) Ltd., AIR 2002 Del 539 [LNIND 2002 DEL 230]; the principles of this section have been applied to leases in the Punjab, see Chiragh Din v. Mohammad Usman, AIR 1974 Lah 281; Karam Chand v. Amar Nath, AIR 1933 Lah 377, and to agricultural leases; see Krishna Shetti v. Gilbert Pinto, (1919) ILR 42 Mad 654; Gangamma v. Bhommakka, (1910) ILR 33 Mad 253; Vasudevan v. Valia, (1901) ILR 24 Mad 47 (FB), but see Sureshwari Datt v. Panna, AIR 1963 HP 34 [LNIND 1962 HP 11]. 73. Giriraj Prasad v. Shyam Sunder Agarwal, AIR 2010 (NOC) 1020 (All); Nabina Chadha v. Usha Das, AIR 2011 Ori 5 [LNIND 2010 ORI 44]; Janardhanan Chandran v. Govindan Shanmughan, AIR 1990 NOC 46 (Ker); Sunder Singh v. Ram Saran Das, AIR

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(IN) Poonam Pradhan Saxena : Property Law 1933 Lah 61; Kundan Lal v. Deepchand, AIR 1933 All 756; Suraj Bhan v. Hafiz Abdul, AIR 1944 Lah 1; Hakim Mohamad Fazihzaman v. Anwar Hussain, AIR 1932 All 314. 74. Abdul Rahim v. Sarafat Ali, AIR 1929 Bom 66. 75. Rattan Lal v. Vardesh Chander, AIR 1976 SC 588 [LNIND 1975 SC 495]. 76. Vasudev Daji v. Babaji Ranu, (1872) 8 Bom HC 175 AC; Muthuvaiyan v. Sinna Samavalyan, (1905) ILR 28 Mad 526; Trimbak Ramchandra v. Shekh Gulam Zilani, (1909) 34 Bom 329; Mujibar Rahaman v. Hab Surati, AIR 1928 Cal 546. 77. Vithalbhai Pot Ltd. v. Union Bank of India, AIR 1992 Cal 283 [LNIND 1992 CAL 54]; Krishna Rao v. Mungara Sanyasi, AIR 1932 Mad 298 [LNIND 1931 MAD 216]. 78. Parattahath v. Parattahath, (1906) 16 Mad LJ 351. 79. Pasupati v. Narayana, (1890) ILR 13 Mad 335. 80. Lal Mahomed v. Kallanus, (1885) ILR 11 Cal 519; Ketu Das v. Surendra Nath Sinha, (1903) 7 Cal WN 596; Krishna Prasad Lal Singh Deo v. Baraboni Coal Concern, AIR 1937 PC 251. 81. Balwant Rai Agarwal v. Bharat Petroleum Corporation, AIR 2010 (NOC) 920 (MP); R.M.Mehta v. Hindustan Photo Films Manufacturing Co., AIR 1976 Mad 194 [LNIND 1975 MAD 269]; Nainar Sundaram J in Hindustan Petroleum Corpn. Ltd. v. Vummidi Kannan, AIR 1992 Mad 190 [LNIND 1991 MAD 61]; Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609 [LNIND 1973 SC 254]. 82. Kempraj v. Barton Son & Co., AIR 1970 SC 1872 [LNIND 1969 SC 302]. Such a covenant does not create an interest in property, and runs with the land, it cannot, therefore, infringe the rule against perpetuities; see Ram Lal v. Secretary of State, (1919) 29 Cal LJ 314. 83. Ranjit K Dutta v. Tapan Shaw, AIR 1997 Cal 278 [LNIND 1997 CAL 94]. 84. Murali Krishan v. A. Nagarajan, AIR 1991 Mad 108 [LNIND 1990 MAD 81]. 85. Indian Cotton Co. v. Raghunath, AIR 1931 Bom 178. 86. Ramesh Chandra v. Atul Chandra, AIR 1959 Asam 22. 87. Ram Lal v. Secretary of State, (1919) 29 Cal LJ 314. 88. Jaggi Lal v. Sir WE Cooper, (1905) ILR 27 All 696. 89. Hemant Kumari Debi v. Safutullah Biswas, AIR 1933 Cal 477. 90. Renuka Seal v. Sabitri Dey, AIR 2008 Cal 75 [LNIND 2007 CAL 572]; Manilal v. Nandlal, (1920) 22 Bom LR 133; AIR 1944 Bom 210. 91. Purshottam Das Tandon v. State of Uttar Pradesh, AIR 1987 All 56 [LNIND 1986 ALL 102]. 92. Ram Lal v. Secretary of State, (1919) 29 Cal LJ 314. 93. Munni Devi v. State of Uttar Pradesh, AIR 1977 All 386. 94. Hindustan Petroleum Corpn. Ltd. v. R.P. Agarwalla, AIR 1986 Cal 403 [LNIND 1985 CAL 315]. 95. Ganapati Salt Works v. State of Gujarat, AIR 1995 Guj 61 [LNIND 1994 GUJ 83]. 96. The lease can be periodic or in perpetuity but for a certain term. The term ‘certain need not be certain on the date of the lease. It is enough if it is capable of being made certain on a future date, see Juthika Mulick v. M.Y.Bal, AIR 1995 SC 1142 [LNIND 1994 SC 1005]. 97. Raghubir Singh v. Jethu Mahton, AIR 1923 Pat 130. 1.

Mahabir Gope v. Harbans Narain, AIR 1952 SC 205 [LNIND 1952 SC 26]; Hardei v. Wahid Khan, AIR 1954 All 16 [LNIND 1953 ALL 172]; Jhagru Main v. Raghunath, AIR 1929 Pat 630.

2.

Pramod Kumar Jaiswal v. Bibe Husn Bano, (2005) 5 SCC 492 [LNIND 2005 SC 453]; Gulab Chand Verma v. Badri Narain Mishra, AIR 2005 All 133 [LNIND 2006 AP 831]; India Umbrella Manufacturing Company v. Bhagabandei Agarwalla, AIR 2004 SC 1321 [LNIND 2004 SC 1].

3.

Arun Kumar Tandon v. Akash Telecom Pvt. Ltd., AIR 2010 (NOC) 744 (Del); Puran Chand v. Kirpal Singh, AIR 2001 SC 423; Banshilal v. Noor Mohammad, AIR 1970 Raj 244.

4.

Shafiq Ahmad v. Sayeedan, AIR 1984 All 140.

5.

Arjunlal v. Girish Chandra, AIR 1973 SC 2256.

6.

Tara Chand v. Sagarbai, AIR 2007 SC 2059 [LNIND 2007 SC 616]; Patel Atmaram Nathudas v. Patel Babubhai Keshavlal, AIR 1975 Guj 120 [LNIND 1974 GUJ 63].

Page 71 of 79

(IN) Poonam Pradhan Saxena : Property Law 7.

Nand Lal v. Sukh Dev, (1987) Supp SCC 87; G. Appalaswamy v. B. Venkataramanayya, AIR 1984 SC 1728 [LNIND 1984 SC 364].

8.

Nenri Chand v. Onkarlal, AIR 1991 SC 2046.

9.

A. Arunugam Chettiyar v. Lokanayakamma, AIR 1997 SC 280 [LNIND 1996 SC 352]; for a contrary opinion, see N.V.Hendre v. B.S.Kothawale, AIR 1994 SC 368.

10. Ganesh Prasad v. Badri Prasad, AIR 1980 All 361. 11. Someshwari Prasad v. Maheshwari, AIR 1931 Pat 426. 12. Usha Ranjan Roy Burman v. Sova Das, AIR 1990 Cal 1 [LNIND 1989 CAL 118]; Maya Devi v. Rajlakshmi Debi, AIR 1950 Cal 1 [LNIND 1949 CAL 46]. 13. Monmotha Paul v. Mohendra Nath, AIR 1922 Cal 284; Faqir Bakhsh v. Murli Dhar, AIR 1931 PC 631; Badri Narain Jha v. Rameshwar, AIR 1951 SC 186 [LNIND 1951 SC 9]; Parmeshwar Singh v. Sureba, AIR 1925 Pat 530; Hari Pratap v. Ramgopal, AIR 1961 Raj 18 [LNIND 1960 RAJ 90]; Bhoori Lal v. Gehri Lal, AIR 1967 Raj 22 [LNIND 1965 RAJ 29]. 14. Madanpal v. Bashati Kumar Shet, AIR 1989 Cal 223 [LNIND 1989 CAL 17]. 15. Murli Singh v. Ram Singh, AIR 2007 Utr 80; Faqir Baklish v. Murli Dhar, AIR 1931 PC 63. 16. Thrity Sam Shroff v. Mehroo Meherji Vakil, AIR 2010 Bom 170 [LNIND 2010 BOM 326]. 17. Usha Ranjan Roy Burman v. Sova Das, AIR 1990 Cal 1 [LNIND 1989 CAL 118]. 18. N. Sainuddin v. K. Sulaiman, AIR 2002 SC 2562 [LNIND 2002 SC 410]. 19. Pramod Kumar Jaiswal v. Bibi Husn Bano, AIR 2005 SC 2857 [LNIND 2005 SC 453]. 20. Tarak Nath Sha v. Bhutoria Bros., AIR 2002 SC 2003. 21. Shah Mathurdas Maganlal & Co. v. Nageppu Shankarappa Malage, AIR 1976 SC 1565 [LNIND 1976 SC 119]; Kamlabhai v. Mangilal Dulichand Mantri, (1987) 4 SCC 585 [LNIND 1987 SC 693]; Nand Lal v. Ramji Lal, AIR 1981 Raj 243 [LNIND 1981 RAJ 29]; Sumatilal Sarabhai v. Manoramajayantilal Shah, (1977) Guj LR 512. 22. Tirath Ram Gupta v. Gurubachan Singh, AIR 1987 SC 770 [LNIND 1987 SC 135]. 23. Bhutia Dhondu v. Ambo,. 24. Singeshwar Jha v. Ajab Lal, 25. Kamlabai v. Mangilal Dulichand Mantri, (1987) 4 SCC 585 [LNIND 1987 SC 693]. 26. Gosto Behare Ray v. Ramesh Chandra Das, AIR 1978 Cal 235 [LNIND 1978 CAL 68]. 27. Rasappa Gounder v. G.N.Ramaswamy, AIR 1975 Mad 386. 28. Venkataramanier v. Ananda Chetty, (1871) 5 Mad HC 120. 29. Ramachandra v. Sheikh Hussain, (1901) 3 Bom LR 679. 30. Harr v. Ganapati, AIR 1930 Bom 329. 31. State of Rajasthan v. Bhilwara Spinners Ltd., AIR 2001 Raj 184; the clause has been applied to agricultural leases, see Kuriminaidu v. Padmanabham, AIR 1964 Pat 539. 32. A. Sulaikha Beevi v. K.C. Mathew, AIR 2001 Ker 177 [LNIND 2000 KER 585]; Upendra Singh v. Meghnalli Singh, AIR 1939 Pat 598; Mohamad Ibrahim v. Beni Madhav, AIR 1951 Cal 126 [LNIND 1951 CAL 101]; Shantilal v. Jogendra Nath, AIR 1948 Pat 407; Venkayya v. Subbarao, AIR 1957 Pat 619. 33. Vilia Raja v. T. Vareed, AIR 1961 Ker 293 [LNIND 1960 KER 393]. 34. Lala Devi Singh v. Bhagwan Das, AIR 1972 Del 175 [LNIND 1971 DEL 324]. 35. T.K. Latika v. Seth Karsandas Jamnadas, AIR 1999 SC 3335 [LNIND 1999 SC 764]. 36. Krishna Kumar Khemka v. Grindlays Bank Pvt. Ltd., AIR 1991 SC 899 [LNIND 1990 SC 290]; N.M.Pormiah Nadar v. Kamalakshmi Ammal, AIR 1989 SC 467; Goppulal v. Dwarkadhieeshji, AIR 1969 SC 1291 [LNIND 1969 SC 118]; Sankar Lal Narayan Prasad v. Satya Narayan Berlia, AIR 1987 Cal 221 [LNIND 1986 CAL 285]; Savita Dey v. N. Majumdar, AIR 1996 SC 272 [LNIND 1995 SC 1637]. 37. Jamini v. Debendra, AIR 1924 Cal 355. 38. Ramunni v. Kerala Vanna Valid Raja, (1892) ILR 15 Mad 166. 39. P.M.C.Kunhiraman Nair v. C.R. Naganatha Iyer, AIR 1993 SC 307 [LNIND 1992 SC 417]; Konijeti Venkayya v. Thammana Peda Venkata Subbarao, AIR 1957 AP 619 [LNIND 1955 AP 202]; Noratmal v. Mohanmal, AIR 1960 Raj 89.

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(IN) Poonam Pradhan Saxena : Property Law 40. Mallikarjuriaiah v. Shivanna, AIR 1973 Mys 40; N.V.Hendre v. B.S.Kathuwale, AIR 1996 SC 368 [LNIND 1995 SC 985]; for a different opinion, see, A. Arumugam Chettiyar v. Lokanayakmma, AIR 1997 SC 280 [LNIND 1996 SC 352]. 41. Madhubala v. Budhiya, AIR 1980 All 266. 42. Indira Sharma v. Gopal Dass, AIR 1985 Del 118. 43. Amar Krishna v. Nazir Hasan, AIR 1939 Oudh 257. 44. Rindu v. Raghunath, AIR 1918 Nag 84; Babu Ram v. Gopal Chand, AIR 1921 Pun 341. 45. Kathilal v. Soopni, AIR 1918 Mad 1152. 46. Rindu v. Vithoba, AIR 1931 Nag 159. 47. L and M Society v. Clark, (1952) All ER 492. 48. Manmatha Krishna Mitra v. Dena Bank, AIR 1992 Cal 362 [LNIND 1992 CAL 120]; see also Mahindra & Mahindra Ltd. v. Kohinoor Debi, AIR 1989 NOC (Cal) 200, wherein it was held that the paramount question for consideration is whether the parties intend only to introduce some alteration in the old lease or to create a new one; see also Anjuman-e-Islamiah v. State of Andh Pra, AIR 1994 NOC 28 (AP); Subhash Kumar Lata v. R.C. Chhiba, AIR 1989 SC 458 [LNIND 1988 SC 481]. 49. Imambandi Begum v. Kamleswari Pershad, (1887) ILR 14 Cal 109. 50. Chengalwaraya v. Nataraja, AIR 1966 Mad 19 [LNIND 1964 MAD 99]. 51. V.P.Naidu v. Sethu Udayan, AIR 1974 Ker 132 [LNIND 1973 KER 164]. 52. Kamlabai v. Nagilal Mantri, AIR 1988 SC 375 [LNIND 1987 SC 693]; Rasiklal v. Govind Pandurang, AIR 1993 Bom 34 [LNIND 1992 BOM 150]. 53. Cook & Co. v. C.L.Philips, AIR 1931 Cal 133. 54. Raghuram Rao v. Eric P. Mathias, AIR 2002 SC 797 [LNIND 2002 SC 86]; Meenakshi Jain v. State, AIR 1998 MP 78 [LNIND 1997 MP 53]; Rattan Lal v. Vardesh Chander, AIR 1976 SC 588 [LNIND 1975 SC 495]. 55. Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349 [LNIND 1993 SC 587]. 56. Hiranandhan Ojha v. Ramdhan Singh, AIR 1922 Pat 528. 57. Amar Pramoters, Bangalore v. J.S.A. Gajendra, AIR 2005 NOC 423(Kant); Allah Ditto v. Farz Bibi, (1914) PR 33; Mussa Kutti v. Rangachariar, (1910) 8 Mad LT 238. 58. K.G.Pandit v. Narsingdas, AIR 1951 Nag 207. 59. Re Srinath Zaindari, AIR 1952 Cal 207 [LNIND 1951 CAL 113]; but see Chauthmal v. Sardarmal, AIR 1959 Raj 24 [LNIND 1958 RAJ 86]. 60. Nubakumar Datta v. Trailokya Nath Bose, 24 IC 354. 61. Isha Valimohmed v. Haji Gulam Mohomed, AIR 1974 SC 2061 [LNIND 1974 SC 231]. 62. P. Veda Bhatt v. Mahalaxmi Amma, AIR 1947 Mad 441 [LNIND 1947 MAD 34]. 63. Indraloke Studio Ltd. v. Santi Debi, AIR 1960 Cal 609 (there is forfeiture if the whole is sub-let, though only a part with the consent of the lessor). 64. Venkataramana v. Krishna, AIR 1925 Mad 57 [LNIND 1924 MAD 70]; Swarnamoyee Debee v. Aoyajaddi, AIR 1932 Cal 787. 65. Amur Subba v. Secretary of State, (1917) Mad WN 794. 66. Secretary of State v. Kuchwar Lime & Stone Co., AIR 1938 PC 20. 67. Hunsraj v. Bejoy Lal Seal, AIR 1930 PC 59. 68. Facquir Chand v. Ram Rattan Bhanot, AIR 1973 SC 921 [LNIND 1973 SC 27]. 69. Gurdevi v. Sham Lal, AIR 1946 Lah 330 (FB); Maharaja of Jeypore v. Rukmini, AIR 1919 PC 1. 70. Shiv Parshad v. Shila Rani, AIR 1974 HP 2. 71. Anandamoyee v. Lakhi Chandra, (1906) ILR 33 Cal 339. 72. D.B.Putro v. D.D.Patro, AIR 1978 Ori 103 [LNIND 1978 ORI 2]. 73. Kumuthi Modalichamy v. Thangarathina Nadar, AIR 1991 Mad 229 [LNIND 1990 MAD 161]. 74. Ramrao v. Shree Ram, AIR 1953 All 797 [LNIND 1953 ALL 174]. 75. Rachavva v. Kariyappa, AIR 1981 Kant 76 [LNIND 1980 KANT 268]; Mohamad Hafiz v. United Provinces, AIR 1945 All 285.

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(IN) Poonam Pradhan Saxena : Property Law 76. Fazfil Sheikh v. Abdur Rahman Mea, AIR 1991 Gau 17 [LNIND 1990 GAU 26]. 77. Hatimullah v. Mahomed Arju, AIR 1928 Cal 312; Ratanlal v. Chanbassappa, AIR 1978 Bom 216 [LNIND 1977 BOM 67]. 78. Nirviikar Gupta v. Ram Kumar, AIR 1992 MP 115 [LNIND 1991 MP 269]; Khuman Singh v. Nathuram, (1991) MP LR 123; Mirkhan Natchekhan v. Kutub Ali, (1979) MP LJ 155 [LNIND 1978 MP 48]. 79. Ruhmm v. Rayaji, AIR 1924 Bom 454; see also Kemalooti v. Muhamad, (1918) ILR 41 Mad 629; Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349 [LNIND 1993 SC 587]. 80. Raja Mohammad Amir v. Municipal Board, AIR 1965 SC 1923; see also Sre Vedapuriswaraswami v. Sheik Farid, AIR 1972 Mad 448 [LNIND 1971 MAD 318]; Kundan Mal v. Gurudutta, (1989) 1 SCC 552 [LNIND 1989 SC 51]; Ishwar Singh v. Sawarn Singh, AIR 1986 HP 17 [LNIND 1984 HP 62]. 81. Zia-ud-din v. Fakhir-ud-din, AIR 1923 Lah 454. 82. Mohammad Amir v. Municipal Board, AIR 1965 SC 1923. 83. Gopaljayvant v. Shriniwa s, (1918) ILR 42 Bom 734. 84. Narayan v. Mangesh, AIR 1932 Bom 599; Hashmat Husain v. Saghir Ahmad, AIR 1958 All 847 [LNIND 1957 ALL 221]; Ram Das v. Lachmanjanki, (1961) All LJ 644; Varalakshmamma v. Veeraraghavamma, AIR 1960 AP 166 [LNIND 1959 AP 99]. 85. Narendra Nath Govil v. Naresh Chand Goyal, AIR 1992 Raj 126. 86. M. Subbarao v. P.V.R. Krishna Rao, AIR 1989 SC 2187. 87. Mela Ram v. Sandhi Khan, AIR 1933 Lah 221. 88. Mukal Singh v. Misra Paras Ram, AIR 1924 All 726; Ramayan Prasad v. Gulabo Kuer, AIR 1967 Pat 35; Maharaja of Jeypore v. Rukmini, AIR 1919 PC; but see Sada Ram v. Gajjan Shiama, AIR 1970 P&H 511. 89. Nilmadhab Bose v. Ananta Ram, (1898) 2 Cal WN 755; Ramji Lal v. Shib Charan Das, AIR 1930 All 479. 90. Sada Ram v. Gajjan Shiama, AIR 1970 P&H 511. 91. Majati Subbarao v. P.V.K.Krishana Rao, AIR 1989 SC 2187. 92. Ramniranjan v. Gajadhar, AIR 1960 Pat 525; Ranumal v. Municipal Council, AIR 1972 Raj 55 [LNIND 1971 RAJ 122]. 93. Dev Raj v. Lajwanti, AIR 2010 HP 72 [LNIND 2010 HP 133]. 94. A notice direct to the contact address will be presumed to be duly served if the acknowledgment receipt comes back signed by someone, Bhusan Chandra v. Bengal Coal Co. Ltd., AIR 1966 Cal 63 [LNIND 1964 CAL 210]. 95. Saheb Din v. Gauri Shankar, AIR 1940 Cal 92; Tatya Saolya v. Yeshwanta Kondiba, AIR 1951 Bom 283 [LNIND 1950 BOM 62]; Dattabrajee v. Shripad, AIR 1976 Bom 398 [LNIND 1976 BOM 32]. 96. Tatya Saolya v. Yeshwanta Kondiba, AIR 1951 Bom 283 [LNIND 1950 BOM 62]; Asghar v. Uttar Pradesh Government, AIR 1954 All 649 [LNIND 1954 ALL 62]. 97. Chadrawati Devi v. Surendra Pal Singh, AIR 1979 All 406. 98. Ram Bali Pandey v. Addl Judge, Kanpur, AIR 1999 All 77 [LNIND 1998 ALL 650]; see also Krishna Prasad v. Adyanath Ghatak, AIR 1944 Pat 77; Namdeo Lokman v. Narmadabai, AIR 1953 SC 228 [LNIND 1953 SC 25]; Narasimham v. Atchiyya, AIR 1954 Mad 739 [LNIND 1954 MAD 10]; Sakunthalammal v. Chandrasekar, AIR 1968 Mad 195 [LNIND 1966 MAD 112]. 1.

Deenar Builders Pvt. Ltd. v. Khodey Distilleries Ltd., AIR 2000 Del 147 [LNIND 1999 DEL 1028].

2.

Bishen Sarup v. Abdul Samad, AIR 1931 All 649.

3.

Dattopant v. Vithalrao, AIR 1975 SC 1111 [LNIND 1975 SC 142]; Janardhanan Chandran v. Govindan Shanmughan, AIR 1990 NOC 46 (Ker).

4.

Gokul Chand v. Shib Charan, (1912) 9 All LJ 574.

5.

Deo Nandan v. Meghu Mahton, (1907) ILR 34 Cal 57; Ram Krishun v. Bibi Sohila, AIR 1933 Pat 561.

6.

Chemminian v. Udayavarma, (1900) 10 Mad LJ 201.

7.

Thirthaswamiar v. Rungappayya, (1913) 25 Mad LJ 486.

8.

Dulli Chand v. Meher Chand, (1867) 8 WR 138; Sarafali v. Subraya, (1896) ILR 20 Bom 439, 446; Basanta Kumar v. Secretary of State, 59 IC 273; Chattar Singh v. Nand Kishore, (1914) 12 All LJ 1139; Chotu Mia v. Sundri, AIR 1945 Pat 260 (FB); Mohan Lal v. Governor General, AIR 1945 Nag 255; see also Sen & Co. v. Manimala Sadhu, AIR 1980 Cal 155 [LNIND 1980 CAL 36]; see however Sugam Chand Agrawal v. Jivt Shah, AIR 1984 Pat 814, wherein it was held that once a default occurs mere acceptance by itself will not amount to waiver and that there was no conflict between the Full Bench decisions in Rajkumar Prasad v. Uchit Narain Singh, AIR 1980 242 and Bibi Amna Khatun v. Zahir Hussain, AIR 1981 Pat 1.

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(IN) Poonam Pradhan Saxena : Property Law 9.

Raj Mohan v. Mali Lal, (1915) 22 Cal LJ 546; see also Shanmugam Pillai v. Atma Lakshmi, AIR 1950 FC 38.

10. Amar Krishna v. Nazir Hasan, AIR 1936 Oudh 257. 11. Kali Krishna v. Fade Ali, (1883) ILR 9 Cal 843. 12. Puma Chandra v. Ali Mahammad, AIR 1924 Cal 520; Habib Ahmed v. Keoli Koer, AIR 1946 All 328. 13. Shiv Prasad v. Mandira Kumari, AIR 1940 Pat 478. 14. Kristo Nath v. Brown, (1887) ILR 14 Cal 176. 15. Jogeshuri v. Mahomed Ebrahim, (1886) 14 Cal 33; Midnapore Zamindari Co. v. Joyram Santal, (1916) 1 Pat LJ 185. 16. Sarafali v. Subraya, (1896) ILR 20 Bom 439, 448; Rukmini v. Rayaji, AIR 1924 Bom 454. 17. Raj Mohan v. Mali Lal, (1915) 22 Cal LJ 546. 18. Swarnamayee Debee v. Aoyajaddi, AIR 1932 Cal 787; Talbot & Co. v. Haricharan, AIR 1952 Cal 47 [LNIND 1949 CAL 100]; Fatelal v. Dayalal, (1949) ILR Nag 167. 19. Timmarsa v. Badiya, (1867) 2 Bom HC 66. 20. Amar Pramoters, Bangalore v. J.S.A. Gajendra, AIR 2005 NOC 423(Kant). 21. Padmanabhaya v. Ranga, (1910) 34 Mad 161; Upendra Nath v. Dhubeswar, AIR 1931 Pat 240; State of Bihar v. S.S.Devi, AIR 1972 Pat 200. 22. Chengiah v. Rajah of Kalahasti, (1912) 24 Mad LJ 263. 23. Jagat Ram Sethi v. Raj Bahadur, AIR 1972 SC 1727; see also Gindori v. Shamlal, AIR 1946 Lah 330. 24. The principle of the section applies to agricultural leases, see Hindu Singh v. Rao Nihalkaranji, AIR 1954 MB 37. 25. Basheshar v. Delhi Improvement Trust, AIR 1953 Punj 243; Panchanan v. Haridas, AIR 1954 Cal 460 [LNIND 1954 CAL 44]. 26. Ramswarup v. Gyatri Devi, AIR 1952 All 863 [LNIND 1952 ALL 132]; Joykumar v. S. Chaudhary, AIR 1952 All 130; Hirjibhai v. Balrambhai, AIR 1956 Nag 125; Padam Chand v. Atar Singh, AIR 1972 All 217. 27. Tayabali v. Ahsan & Co., AIR 1971 SC 102 [LNIND 1969 SC 361]; Sudhir Kumar v. Indo Prova Ghose, AIR 1976 Cal 276, for effects of second notice, see Shiv Prasad v. Mandia Kumari, AIR 1940 Pat 478; Mohanlal v. Vijai Narain, AIR 1961 Raj 136 [LNIND 1960 RAJ 64]. 28. B.R.M.Shrivaslava v. Poori Bai, AIR 1981 Del 344 [LNIND 1981 DEL 118]. 29. New India Assurance Co. Ltd. v. Ghanshyam Das, AIR 1997 All 383 [LNIND 1997 ALL 547]; Abdul Kairm v. Abdul Rehman, AIR 1960 MP 16 [LNIND 1959 MP 10]; Kamksha Prosad v. Parwati Bai, AIR 1960 MP 192 [LNIND 1959 MP 121]; Muralidhar Kulthia v. Tara Dye, AIR 1953 Cal 349 [LNIND 1950 CAL 63]. 30. Hindusingh v. Rao Nihalkaranji, AIR 1954 MB 37. 31. Motilal v. Basant Lal, AIR 1956 All 175 [LNIND 1955 ALL 54]. 32. Malina Mondal v. Puspa Rani Dasi, AIR 1991 Cal 291 [LNIND 1990 CAL 321]. 33. Calcutta Credit Corpn. v. Happy Homes, AIR 1968 SC 471 [LNIND 1967 SC 304]; see also Tayabali v. Ahsan & Co., AIR 1971 SC 102 [LNIND 1969 SC 361], where this question was kept open. 34. Hashmetrai v. Tarachand, AIR 1979 Bom 95 [LNIND 1978 BOM 76]. 35. Chhongur Ram v. Ganesh, (1978) All LJ 468; S.Garware Paints Ltd. v. Prem Chand Gupta, AIR 1984 All 364 [LNIND 1984 ALL 223]; Chhangur Ram v. Ganesh, (1978) All LJ 486. 36. Sailabala Dassee v. H.A.Tappassier, AIR 1952 Cal 455 [LNIND 1951 CAL 193]; Harbhajan Singh v. Munshi Ram, AIR 1956 Punj 86; Navnit Lal v. Baburao, AIR 1945 Bom 132; Bhagat Patnaik v. Madhusudhan Panda, AIR 1965 Ori 11 [LNIND 1964 ORI 52]; Saleh Bros. v. K. Rajendran, AIR 1970 Mad 165 [LNIND 1968 MAD 139]. 37. Shanti Prasad Devi v. Shanker Mahto, AIR 2005 SC 2905 [LNIND 2005 SC 518]. 38. Union of India v. S.L. Talwar, AIR 2002 All 212 [LNIND 2002 ALL 447]. 39. Manindra Nath De v. Man Singh, AIR 1951 Cal 342; Ranjit Chandra v. Mohitosh, AIR 1969 SC 1187 [LNIND 1969 SC 131]; Sharda v. Gulab Devi, AIR 1972 All 435. 40. Hazaribagh Mun v. Fulchand, AIR 1966 Pat 434; see also Amar Transport Company v. Muthu Ganapathy, AIR 2005 NOC 529 (Kant). 41. Ved Prakash v. Din Dayal, (1961) All LJ 637; Mansar Ali v. Abdul Karim, (1908) 10 Cal LJ 187; Bimla Devi v. Vedpal Singh, (1978) All LJ 575.

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(IN) Poonam Pradhan Saxena : Property Law 42. Pohumal T. Mardani v. Tushar Kanti Paul Chaudhary, AIR 1977 Gau 17. 43. Pulin Behary v. Lila Dey, AIR 1957 Cal 627 [LNIND 1957 CAL 119]; Narayana lyengar v. Subba Rao, AIR 1958 Mys 113; Panchanan Ghose v. Haridas, AIR 1954 Cal 460 [LNIND 1954 CAL 44]; Mahadeo Prasad v. Sukkha, AIR 1954 Cal 404 [LNIND 1954 CAL 22]; Jagannath v. Sayed Abdul, AIR 1962 Assam 148; Janki Nath v. Jialal, AIR 1962 J&K 2; Bhagwatsinghji v. Keshulal, AIR 1963 Raj 113 [LNIND 1962 RAJ 102]; Bhagat Ram v. Keshab Deo, AIR 1965 Assam 55; see also Ganga Dutt Murarka v. Kartih Chandra Das, AIR 1961 SC 1067 [LNIND 1961 SC 53]. 44. Roshanlal v. Kailash Prasad, AIR 1973 Raj 141. 45. Ram Singh v. Sagar Chand, AIR 1976 HP 21. 46. Chotey Lal v. Sheo Shanker, AIR 1951 All 478 [LNIND 1950 ALL 133]. 47. Bengal Nagpur Rly v. Bal Mukunda, AIR 1923 Cal 663; Kapur Chand v. Kanji, AIR 1958 Pat 868. 48. Ramachandra Jamnadas Katariya v. Nuruddinbhai, AIR 2005 Bom 107 [LNIND 2004 BOM 895]; Hashmetrai H Sindhi v. Tarachand L. Mohota, AIR 1979 Bom 95 [LNIND 1978 BOM 76]; Purohit Lakshmanchandji v. Ramachandra Murty, AIR 1976 AP 428 [LNIND 1976 AP 12]; Ram Chandra v. Ram Niwas, AIR 1983 Bom 417 [LNIND 1982 BOM 275]; Sharda Sharma v. Gulab Devi, AIR 1972 All 435; Khumani v. Sakley Lal, AIR 1952 All 579 [LNIND 1950 ALL 306]; Ilahibux v. Munir Khan, AIR 1953 Nag 219; Ram Lal v. Sardari Lal, AIR 1968 J&K 22; Kamlapat Sahai v. Mando Bibi, AIR 1948 Oudh 127; Manicklal v. Kadambim, AIR 1926 Cal 763. 49. Shah Wall v. Hussaini Begum, 42 IC 655; Zaffar Hussain v. Mahavir Parsad, AIR 1957 Pat 206; Sharda Sharma v. Gulab Devi, AIR 1972 All 435; for a contrary opinion, see Ram Dayal v. Jawala Prasad, AIR 1966 All 623. 50. R. Bhaskar Bhat v. Hindustan Petroleum Corpn. Ltd., AIR 2002 Mad 330 [LNIND 2002 MAD 238]; Dhunumtola Properties Ltd. v. Dhunbai, AIR 1931 Cal 457; Pradyuman Kumar v. Virendra Goyal, AIR 1969 SC 1349 [LNIND 1969 SC 113]. 51. Tippayya v. Rama, AIR 1961 Mys 131. 52. Ram Bait Pandey v. Addl Judge, Kanpur, AIR 1999 All 77 [LNIND 1998 ALL 650]; Ambalal v. Babaldas, AIR 1964 Guj 9 [LNIND 1962 GUJ 4]. 53. Phool Badan Verma v. Ram Badhaee, AIR 2010 (NOC) 741 (All); 2010 (2) ALJ 551; Shyamlal Agarwala v. Nanda Rani Dassi, AIR 1988 Cal 133 [LNIND 1986 CAL 373]. 54. Arun Khiamal Makhijani v. Jamnadas Chetandas, (1989) 4 SCC 612 [LNIND 1989 SC 689]. 55. Hiranandan Ojha v. Ramdhar Singh, AIR 1972 Pat 528. 56. K.G.Pandit v. Narsingdas, AIR 1951 Nag 207. 57. LSM Ltd. v. Ibrahim, AIR 1958 Cal 428 [LNIND 1958 CAL 59]. 58. Prithvichand Ramchand Sablok v. S.Y. Shinde, AIR 1993 SC 1929 [LNIND 1993 SC 458]; see also Pradesh Kumar Bajpal v. Binod Behari Sarkar, AIR 1980 SC 1214 [LNIND 1980 SC 130]. 59. DP Ltd. v. Dhunbai, AIR 1931 Cal 457; N. Das v. P. Das, AIR 1962 All 65 [LNIND 1961 ALL 33]; Vaman v. Venkata, AIR 1936 Mad 116 [LNIND 1935 MAD 291]. 60. Dhurrumtolla Properties Ltd. v. Dhunbai, AIR 1931 Cal 457. 61. Vasudevappa v. Krishna, AIR 1921 Mad 418 [LNIND 1920 MAD 141]; Vellathi v. Kadervel, AIR 1958 Mad 232 [LNIND 1957 MAD 212]; Vaman Pai v. Venkata Naika, AIR 1936 Mad 116 [LNIND 1935 MAD 291]; Janab Vellathi v. Kadervel Thayammal, AIR 1958 Mad 232 [LNIND 1957 MAD 212]. 62. Shyam Bhagwan Dubey v. Shaikh Nizam, AIR 1994 MP 52 [LNIND 1992 MP 70]. 63. Bhusan Chandra v. Bengal Coal Co. Ltd., AIR 1966 Cal 63 [LNIND 1964 CAL 210]; Habib Ahmed v. Keoti Kuer, AIR 1946 All 328. 64. Luxmi Spinning Weaving Mills v. Mohamad Ibrahim, AIR 1958 Cal 428 [LNIND 1958 CAL 59]. 65. Narayan v. Handu, (1905) 15 Mad LJ 210. 66. Narsingh Das v. Permeshwari Das, AIR 1962 All 65 [LNIND 1961 ALL 33]. 67. Kishanlal v. Hari, AIR 1956 Assam 113. 68. Om Shanti Swarup v. Prasanna Kumar, AIR 1975 All 227. 69. Namdeo Lokman v. Narmadabai, AIR 1953 SC 228 [LNIND 1953 SC 25]; Thackers Press & Directories Ltd. v. Gopinath, AIR 1962 Cal 591 [LNIND 1962 CAL 5]. 70. Meenakshi Sundaram v. Paul Asari, (1977) 1 Mad LJ 537. 71. Rameshwar Bora v. Dakshinpat Satra, AIR 1990 Gau 81.

Page 76 of 79

(IN) Poonam Pradhan Saxena : Property Law 72. Ahindra Nath v. Twiss, AIR 1922 Cal 394. 73. Debendra v. Cohen, AIR 1927 Cal 908; Tripura v. Venkatesswarlu, AIR 1949 Mad 841; Namdeo v. Narmadabai, AIR 1953 SC 228 [LNIND 1953 SC 25]. 74. Chilkuri v. Chilkuri, AIR 1949 Mad 841; Bhagwant v. Rambhan, (1953) ILR Bom 98; Namdeo v. Narmadabai, AIR 1953 SC 228 [LNIND 1953 SC 25]; Gobinda Lal v. Tarak Nath, AIR 1977 Cal 178 [LNIND 1976 CAL 179]; Shir Kishanlal v. Ramnath, AIR 1944 Nag 229; Bhagwant v. Rambhan Keshav, AIR 1953 Bom 129 [LNIND 1952 BOM 25]; Janab Vellathi v. Kadewel Thayammal, AIR 1958 Mad 232 [LNIND 1957 MAD 212]. 75. Ram Prasad Rai v. Raghunath Prasad, AIR 1974 All 72. 76. Om Shanti Swarup v. Prasanna Kumar, AIR 1975 All 227. 77. Pradyuman Kumar v. Virendra Goyal, AIR 1969 SC 1349 [LNIND 1969 SC 113]; Amiya De v. D.N. Mandal, AIR 1971 Cal 263 [LNIND 1970 CAL 203]. 78. Forfeiture is not complete unless and until the lessor gives a notice to the lessee, see Prabhat Chandra v. Bengal Central Bank, AIR 1938 Cal 589. But see Godabari Debi v. Nand Kishore, (1969) 74 Cal WN 531, that he wishes to exercise his option to determine the lessee; see Meenakshijain v. State, AIR 1998 MP 78 [LNIND 1997 MP 53]; the principle and its requirements apply to agricultural leases, see Mallappa v. Janardan, AIR 1926 Bom 304; Briget Souza Bai v. Maria Louis Bai, AIR 1947 Mad 119 [LNIND 1946 MAD 173]; Margaret Jean Massy Westmorland Wood v. Colonel Granville Alric Richard Spain, AIR 1953 Mad 313 [LNIND 1952 MAD 216]; Kemalooti v. Muhamed, (1918) ILR 41 Mad 629. 79. Amrit Lal Bassi v. Union of India, AIR 1987 Del 340 [LNIND 1986 DEL 269]; Rachotappa v. Konher, AIR 1935 Bom 41. 80. Bhagaban Biswas v. Bejoy Singh Nahar AIR 1980 Cal 70 (FB) 81. Basant Lal v. State of Uttar Pradesh, (1980) 4 SCC 430 [LNIND 1980 SC 407]. 82. P.S. Nirash v. Mintok Domma Kazini, AIR 1984 Sikkim 1. 83. Mahammad Ibrahim v. Beni Madhav, AIR 1951 Cal 126 [LNIND 1951 CAL 101]; Suleman Haji v. Darab Shaw, AIR 1939 Bom 98. 84. Suleman Haji v. Darab Shaw, AIR 1939 Bom 98. 85. Kshiroda Sundari v. Bhupendra Mohan, AIR 1961 Assam 70; Ramkissendas v. Binjraj, AIR 1923 Cal 691. 86. Sheikh Yusuf v. Jyotish Chandra, AIR 1932 Cal 241. 87. Bahadur v. Raja Moti Chand, AIR 1975 All 580. 88. Shankar Rao v. Kishanlal, AIR 1950 MB 19. 1.

M R Sahni v. Doris Randhawa, AIR 2008 Del 110 [LNIND 2008 DEL 405]; Ram Prasad Kurmi v. Suraj Nath, AIR 2005 NOC (Gau) 573; Bank of India v. V. Swaroop Reddy, AIR 2001 Andh Pra 260; Punjab National Bank v. Choudhary, AIR 1943 Oudh 392.

2.

Ram Prasad Kurmi v. Suraj Nath, AIR 2005 NOC (Gau) 573.

3.

M. Annapurnaiah v. M.Narsimha Rao, AIR 1982 Pat 253.

4.

Hasanalli v. Dam Shah, AIR 1949 Nag 289.

5.

Syed Nawab Ali v. Mohammad Ramzan, AIR 1944 Nag 141.

6.

Bhawanji Lakhamshi v. Himatlal Jamnadas, AIR 1972 SC 819 [LNIND 1971 SC 641].

7.

Sundershan Trading Co. Ltd. v. LD DSOUZA, AIR 1984 Kant 214 [LNIND 1983 KANT 220].

8.

Sant Ram v. State of Himachal Pradesh, AIR 1989 HP 15 [LNIND 1987 HP 18]; Bhawanji Lakhanishi v. Himatlal Jamnadas, AIR 1972 SC 819 [LNIND 1971 SC 641]; Kaikhushru v. Baijarbai AIR 1949 FC 124; Badri lal v. Indore Municipality, AIR 1973 SC 508 [LNIND 1972 SC 567].

9.

K.K. Verma v. Union of India, AIR 1954 Bom 358 [LNIND 1954 BOM 5].

10. Chander Kali Bail v. Jagdish Singh Thakur, AIR 1977 SC 2262 [LNIND 1977 SC 285]. 11. Bhola Nath v. Maharao Raja Saheb Bundi State, AIR 1984 All 60. 12. M.R.S.Ramakrishnan v. Asstt Director, Ex-Servicemen Welfare, AIR 1982 Mad 431 [LNIND 1982 MAD 81]. 13. Ranjit Kumar Dutta v. Tapan Kumar Shaw, AIR 1997 Cal 278 [LNIND 1997 CAL 94]. 14. Gulam Ghaus v. Chaudhari, AIR 1947 Mad 436 [LNIND 1947 MAD 55].

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(IN) Poonam Pradhan Saxena : Property Law 15. Indian Oil Corporation v. Alka Agarwal, AIR 2007 Bom 113 [LNIND 2007 BOM 308]; Burmashell Oil Distributing Corporation v. K.M. Norr, AIR 1988 SC 1470 [LNIND 1988 SC 203]; Benoy Krishna Das v. Salsiccioni, AIR 1932 PC 279; Susil Chunder Neogy v. Birendrajil, AIR 1934 Cal 837; Sailbala Dassee v. H.A.Tappassier, AIR 1952 Cal 455 [LNIND 1951 CAL 193]. 16. Shanti Prasad Devi v. Shanker Mahto, AIR 2005 SC 2905 [LNIND 2005 SC 518]; Maheshwar Singh v. Radha Madhab Jew Thakur, AIR 2007 Ori 190 [LNIND 2007 ORI 102]. 17. Mohamed Ahmed Amohi v. Nirmal Chandra Roy, AIR 1978 Cal 312 [LNIND 1977 CAL 283]. 18. K. Anjanakumari v. Bhavani, AIR 2007 (NOC) 138 (Mad); Ambar All v. Anjab, AIR 1949 Assam 87; Bijay Chandra v. Howrah Amta Rly, AIR 1923 Cal 524; Har Nath v. Mohar Singh, AIR 1931 Lah 675; Sutti Devi v. Seth Banarse Das, (1949) ILR All 840. 19. Municipal Committee Kaithal v. Pyare Lal Rikhiram, AIR 1974 P&H 239. 20. Bhuneshwar Prasad v. United Commercial Bank, AIR 2000 SC 2796 [LNIND 2000 SC 1150]. 21. Balaji v. Ramchandra, (1903) ILR 27 Bom 262. 22. Abdulahed Moulvi Abdulsammad v. Gulam Mohamad Gulamnabi Bardoliwala, AIR 1975 Guj 1 [LNIND 1995 GUJ 161]; Padmanabha Pillai v. Sankaran Viswambaram, AIR 1987 Ker 98 [LNIND 1986 KER 197]; Baldeodas Mahavir v. G.P.Sonavalla, AIR 1948 Bom 385; Digambar Narain v. Commr, Tirhut Division, AIR 1959 Pat 1; Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 [LNIND 1961 SC 53]; Bhawanji Lakhamshi v. Himatlaljamnadas, AIR 1972 SC 819 [LNIND 1971 SC 641]; Abdul Karim v. Abdul Rehman, AIR I960 MP 16. 23. Khudiram Mukherjee v. Samsul Bari, AIR 1983 Cal 303 [LNIND 1981 CAL 312]. 24. Deep Chand v. Babu Ram, AIR 1976 All 478. 25. Badri Lal v. Municipal Corporation Indore, AIR 1973 SC 508 [LNIND 1972 SC 567]. 26. Karnani Industrial Bank Ltd. v. Province of Bengal, AIR 1951 SC 285 [LNIND 1951 SC 34]. 27. D.R. Punjab Montgomery Transport Co. v. Raghuvanshi Private Ltd., AIR 1983 Cal 343 [LNIND 1981 CAL 329]. 28. Shyamcharan v. Sheoji Bhai, AIR 1964 MP 288 [LNIND 1964 MP 29]. 29. Surya Lall v. Tulsi Modak, AIR 1951 Pat 483; Mitarjit v. Sheikh Leakut, (1914) 18 Cal WN 858. 30. Ram Hari Singh v. Tirtha Pada, AIR 1957 Cal 173 [LNIND 1955 CAL 94]; Munshi Safar Ali v. Abdul Majid, AIR 1927 Cal 279; Chaturbhuja v. Gopal Dolai, 18 IC 448. 31. Gordhan v. Ali Bux, AIR 1981 Raj 206 [LNIND 1981 RAJ 23]; Paramananda Singh v. Syjou Singh, 37 IC 201, (1916) 24 Cal LJ 30. 32. Pritilata Devi v. Banke Bihari Lal, AIR 1962 Pat 446; Sheogobind v. Sujan, AIR 1960 Pat 156; Ratan Lal v. Farshi Bibi, (1907) ILR 34 Cal 396; Govindaswami v. Ramaswami, 34 IC 6, (1916) 30 Mad LJ 492; Christian v. Hari Prasad, AIR 1955 Pat 158. 33. Pratap Narain v. Juggilal Kamalapat Iron & Steel Co. Ltd., AIR 1975 All 73. 34. Rajendra Prasad v. Ram Prasad Rao, AIR 1985 Pat 104. 35. Independent News Service Pvt Ltd (India TV) v. Century Communications, AIR 2010 (NOC) 846 (All) 36. Charan Singh v. Municipal Committee, Rania, AIR 1996 P&H 207. 37. Roman M.S. v. Bangalore Corpn., AIR 1971 Mys 305. 38. Kisan Punjaji v. Yashodabai, (1968) 70 Bom LR 765. 39. Durgi Nikarini v. Gobardhan, (1915) 19 Cal WN 525. 40. Adimulam v. Pir Ravuthan, (1885) ILR 8 Mad 424, 427; Vadapalli v. Dronamraju, (1908) ILR 31 Mad 163. 41. Burma Shell Oil Storage & Distributing Co. of India Ltd. v. State of Uttar Pradesh, AIR 1984 All 89; Kamakhya Narayan Singh v. Ram Raksha Singh, AIR 1928 PC 146; Gobinda Chandra v. Dwarka Nath, (1915) 19 Cal WN 489; Trilokya Nath v. Sarat Chandra, (1905) ILR 32 Cal 123; Dasarathi Kumar v. Sarat Chandra, AIR 1934 Cal 135; Mati Lal v. Darjeeling Municipality, (1913) 17 Cal LJ 167. 42. Giribala Dasi v. Dwarka Nath Mistri, AIR 1932 Cal 715; Narayan v. Gokuldas, AIR 1947 Mad 43; Faqiria v. Kalu Mal, AIR 1952 Punj 52. 43. Sivasubramania v. Theerpathi, AIR 1933 Mad 451 [LNIND 1933 MAD 69]. 44. Jangal Singh v. Mukund Kumar, AIR 1948 Pat 446. 45. Murugesa Chetti v. Chinnathambi, (1901) ILR 24 Mad 421. 46. Prabhat Chandra v. Bengal Central Bank, AIR 1938 Cal 589.

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(IN) Poonam Pradhan Saxena : Property Law 47. Panadai Pathan v. Ramasami, AIR 1922 Mad 351; see also for a contrary opinion, Raja of Venkatagiri v. Ayyapareddi, (1915) ILR 38 Mad 738. 48. Hedayet v. Kamalanand, (1913) 17 Cal LJ 411. 49. Surendra Narain Singh v. Hari Mohan, (1904) ILR 31 Cal 174. 50. Hari Mohan Misser v. Surendra Narayan, (1907) ILR 34 Cal 718. 51. Surendra Kumar Sen v. Chandratara Nath, AIR 1931 Cal 135. 52. Hedayet v. Kamalanand, 20 IC 332. 53. Banmali v. Nihal, 48 IC 354. 54. J. Chandra v. L. Mohan, 7 IC 864. 55. Hedayet v. Kamalanand, 20 IC 332. 56. Bithal Das v. Iqbalmunissa, AIR 1940 Oudh 425; Sasibala v. Amala, AIR 1921 Cal 379; Gopal v. Bhutnath, AIR 1926 Cal 312. 57. Budhan Mahton v. Ramanugrah Singh, AIR 1947 Pat 78; Satya Niranjan v. Sarajubala Debi, AIR 1930 PC 13; Abdul Hossain v. Shalimar Paint, AIR 1947 Cal 36. 58. B.N.Prasad v. SM Asghar Hussain, AIR 1967 Pat 142; Shiam Sunder v. Chottey Lal, AIR 1937 Oudh 151. 59. Purusottam v. Panchanan, AIR 1926 Cal 373. 60. Orient Paper Mills v. Sitaraw Agarwala, AIR 1957 Ori 276. 61. Promotho Nath Mitter v. Kali Prasanna, (1901) ILR 28 Cal 744. 62. Banwari Lal v. Gopal Chandra, AIR 1933 Cal 643.

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 7

CHAPTER 7 Exchanges EXCHANGE

Section 118. “Exchange” defined.— When two persons mutually transfer the ownership of one thing for the ownership of another, 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.

EXCHANGE DEFINED When two persons mutually transfer the ownership of one thing for the ownership of another,1 neither thing or both things being money only,2 the transaction is called an ‘exchange’. It is a transaction by which each party acquires property in which he had no interest before. For a valid exchange, there must be a physical delivery of the property to the parties and each party to the exchange has the rights and is subject to the liability of the seller as to that which he gives, and also has the rights and liabilities of a buyer as to that which he takes.3 Essentials of an Exchange (i) There must be a minimum of two parties and two properties, one each belonging to each of them; (ii) There have to be a mutual transfer of these properties—i.e., A transferring his property to B, and B in turn transferring his property to A; (iii)Property can be exchanged with either movable or immovable property; (iv)No other consideration should be involved besides these properties.

(IN) Poonam Pradhan Saxena : Property Law

An exchange involves a mutual transfer between two parties of their respective properties. The main factor that distinguishes an exchange from a sale is that in an exchange, no monetary consideration is involved. Exchange of one property for money is a sale, and an exchange of movable property with another movable property is barter. An exchange of one stamp for another,4 or shares in a limited company, as consideration, is an exchange.5 In an exchange the consideration must be specified, as, if it is not mentioned, the transaction is not an exchange. If one of the items transferred is coupled with money, the transaction is not an exchange but a sale.6 Thus, where properties are transferred and one of the parties has to pay an additional sum of one lakh rupees as equalisation value, the transaction is not an exchange, but is a sale.7 A partition8 or a surrender of a lease in exchange of lease of another property is not an exchange,9 but an exchange of equity of redemption of one property for the mortgagee’s rights of another10 or a transfer of rights in the respective PLOTS situated in two villages for convenience in cultivating is an exchange, and the mere mention of sale consideration in the sale deed does not make it a sale.11 Mutual Exchange The term ‘mutually’ signifies that the parties must be same,12 and two things are exchanged. For instance, A transfers his property to B and B transfers his own property in exchange to A. If the transfer is only from the side of one of the parties, it is not an exchange. Thus a transfer by a husband to a wife in discharge of her claim to maintenance is not an exchange, as the wife does not transfer ownership in anything.13 Similarly, a document whereby one decree is set off against another and the balance made up by a transfer of land is not an exchange, for there is no mutual transfer of two things.14 Object of Exchange Must be Lawful The object of exchange must not be unlawful. Exchange is primarily a contract, and if the object is illegal or aims at defeating the provisions of law, it would be invalid. In Shrihari Jena v. Khetramohun Jaina,15 a deed of exchange was executed to compromise criminal proceedings between the parties. The agreement between them stated, that till the proceedings are compromised, the deed of exchange could not be taken from the Registrar’s office. The court held that in view of s 23 of the Indian Contract Act, 1872, the exchange was invalid. Mode of Transfer Transfers of property by way of an exchange can be made only in manner provided for the transfer of such property by sale. Thus, in case of immovable property the rules as to registration or delivery of possession apply.16 Therefore, an exchange of tangible immovable property of the value of Rs. 100 and upward, if not made by a registered instrument, is invalid.17 An exchange can be made by mutual conveyances,18 though two separate deeds are not necessary.19 This rule does not apply in Punjab, and therefore an exchange of property in Punjab can take PLACE and validly completed even orally.20 In Mohammadin v. Asibun Nissa, 21A and B were neighbours having adjacent lands. In survey Page 2 of 6

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records, with respect to their PLOTS, entries were wrongly made, showing X property belonging to A and Y property as that of B. A and B, therefore, in order to correct the mistake in the survey records, executed a document wherein they acknowledged that a mistake had occurred in the survey records and they clearly stated in the document that the respective ownership of X was with B and of property Y, with A.Such document is not an exchange, but simply a document embodying an acknowledgment of possession. As this was not an exchange document, it would be admissible in evidence even if it were unregistered. Sale and Exchange The TP Act has kept both sale and exchange on the same footing as far as the liabilities of both the parties are concerned. The methods and formalities for executing a sale and an exchange are also similar. Yet at the same time, the two are different in two fundamental aspects. These two primary differences between an exchange and a sale are as follows: (i) In a sale, generally only one property is exchanged for money but in an exchange, one property is exchanged for another property; (ii) In a sale, the consideration is money. However, in an exchange the consideration cannot be money. In John Thomas v. Joseph Thomas,22 the issue before the court was whether the written agreement for mutual exchange of properties amounted to a sale or an exchange. The parties had known each other for a long time. One of the parties, A, owned the property X, and the other, B owned property Y. Since X was more valuable than Y, when A exchanged X for Y, B paid an additional sum of one lakh rupees towards equalisation money. The court held that since money had been paid by one party to another, it amounted to a sale and not an exchange. RIGHT OF PARTY DEPRIVED OF THING RECEIVED IN EXCHANGE

Section 119. Right of party deprived of thing received in exchange.— If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.

GENERAL PRINCIPLE Page 3 of 6

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An exchange, like a sale, is primarily a contract between two parties; and unless the object of exchange is unlawful, the terms of the contract would be applicable to both of them. The rule enunciated in s 119 is also subject to a contract to the contrary. According to this section, each party is entitled to the property that he was entitled to under the contract and provides a remedy to the aggrieved party in case, he does not get what he was supposed to get under this contract. For instance, A and B enter into a contract to mutually exchange their properties X and Y, respectively. A delivers X to B, but B fails to deliver Y to A. A’s rights would be decided in accordance with the rules laid down under this section. It provides two remedies to the party so dispossessed in the alternative: (i) He can claim compensation for the loss caused to him by such dispossession. (ii) He can take back the property he had transferred. This right can be exercised as against: (a) the other party to the exchange having its possession; (b) if the possession is with the legal representative of the transferee; (c) if the possession is with the gratuitous transferee of the other party. Where a person does not get the possession of the property that he is entitled to receive in exchange, he is entitled to return of the property transferred by him.23 Thus, where a party to an agreement for exchange of property loses possession of the property received in exchange due to defect in title of the other party, the former is entitled to retain possession of the property he gives in exchange if he happens to be in possession thereof.24 Here, a person A, surrendered a PLOT of land over which he had no title, to the Kanpur Development Authority, in exchange for another PLOT. The authority accepted the surrendered PLOT but refused to give him the PLOT demanded by him in exchange on the ground that he had no title to the original PLOT and therefore he could not get anything in exchange. On the refusal of the authority to hand over the PLOT to him, he filed a suit. The court held that the authority was empowered to retain the possession of the PLOT, as to begin with, A had no title to the property which he wanted to exchange for another. The principle of getting the property in return in case of deprival of the exchanged property, also applies to cases where instead of a subsequent deprivation of the property transferred there is no transfer at all. When a party to an exchange fails to obtain possession of the property which he is entitled to receive in exchange, then also, he is entitled at his option for the return of the property transferred by him.25 Where a person is evicted from a portion of the land, he can recover the whole of the land that he gives, but cannot retain the portion from which he has not been evicted.26 However if the exchange is complete and then one party is dispossessed by a trespasser, he cannot seek the return of his property given to the other party under an exchange.27 For instance, A transfers property X to B, and B transfers the property Y to A. B takes possession of the property, and the exchange is complete. One month subsequent to the completion of the exchange, a trespasser T, forcibly occupies B’s property and dispossesses him. B cannot seek the return of his property given to A on the ground that since he has been dispossessed, he is entitled to the return of his property given to A under the Page 4 of 6

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exchange. Contract to the Contrary The exchange may, however, be subject to express covenants as to title, and these would exclude the covenant implied by this section.28 A clause that ‘neither party has after to-day any claim against the other contrary to the exchange; whatever proprietary rights each party had in his own land will be owned by the other party’ is not a contract to the contrary, but merely a recital of the effect of the exchange.29 RIGHTS AND LIABILITIES OF PARTIES

Section 120. Rights and liabilities of parties.— Save as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes. In an exchange, each party is subject to the rights of the buyer and seller in relation to the property that he receives and gives respectively. A right of pre-emption which arises out of a sale, does not necessarily arise out of an exchange,30 but a rule of estoppel applies in case of an exchange. Thus, where a person having only half the property purports to give the whole of it to another in exchange, and subsequently purchases the other half, the transferee is entitled to the other half also, as soon as the title becomes perfect.31 There is no charge for an unpaid32 or paid33 price in an exchange on the land given for the value of the land agreed to be taken. EXCHANGE OF MONEY

Section 121. Exchange of money.— On an exchange of money, each party thereby warrants the genuineness of the money given by him. Money can be exchanged with money, of the same or different denominations or even different currencies. The term money here includes not only coins, but also currency notes.34

1.

Kama Sahu v. Krishna Sahu, AIR 1954 Ori 105 [LNIND 1953 ORI 10].

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Randhir Singh v. Randhir Singh, AIR 1937 All 665; Ram Badan Lal v. Kunwar Singh, AIR 1938 All 229; Fateh Singh v. Prithi Singh, AIR 1930 All 426; Ismail Shah v. Saleh Muhammad, AIR 1925 Lah 326; Nathu Mal v. Har Dial, (1900) PR 97; Babu v. Maruti, (1907) 3 Nag LR 138.

3.

Mohammadin v. Asibun Nissa, AIR 2005 Jhar 1 [LNIND 2004 JHAR 196].

4.

Kedar Nath v. Emperor, (1903) ILR 30 Cal 921.

5.

Commr of Income-Tax v. Motor & General Stores (P) Ltd., AIR 1968 SC 200 [LNIND 1967 SC 176].

6.

Ibid; see also Randhir v. Randhir, AIR 1937 All 665; Srinivas v. Corpn City of Bangalore, (1957) ILR Mys 157; Kama v. Krishna, AIR 1954 Ori 105 [LNIND 1953 ORI 10], wherein it was held that if part of the consideration is land and part cash the transaction is not one of sale but exchange.

7.

John Thomas v. Joseph Thomas, AIR 2000 Ker 408 [LNIND 2000 KER 309], but see Ismail Shah v. Saleh Muhammad, AIR 1925 Lah 326 where in exchange for a house worth Rs. 1500 the other party gave a field worth Rs. 1000 and Rs. 500 in cash, and the transaction was held as one of exchange.

8.

Gyanessa v. Moharakannessa, (1898) ILR 25 Cal 210; Satya Kumar v. Satya Kripal, (1909) 10 Cal LJ 503.

9.

Waliul Hassan v. Maharaj Kumar Gopal, (1901) 6 Cal WN 905.

10. Ariyaputhira v. Muthukomaraswami, (1914) ILR 37 Mad 423, 15 IC 343; Lachman Prasad v. Mir Fida Hussain, 18 OC 109. 11. Banwari Lal v. Assistant Director of Consolidation, (1981) All LJ 1239. 12. Palacheria Anandu v. Mallipudi Acharyulu, AIR 1958 Andh Pra 743. 13. Madan Pillai v. Badrakali, AIR 1922 Mad 311 [LNIND 1922 MAD 5]. 14. Dina Nath v. Matimala, (1906) 11 Cal WN 342. 15. AIR 2002 Ori 195 [LNIND 2002 ORI 22]. 16. Debi Prasad v. Jaldhar Chaube, AIR 1946 All 125. 17. Hari Shanker Mishra v. Vice–Chariman, Kanpur Development Authority, AIR 2001 All 139 [LNIND 2001 ALL 96]; Chidambara Chettiar v. Vaidilinga, (1915) ILR 38 Mad 519; Shams Shah v. Hussain Shah, 4 IC 1004; see however Bhagwan Kaur v. Ranjit Singh, Alr 1990 P&H 89. 18. Nathu Mal v. Har Dial, (1900) PR 97. 19. Gopi Ram v. Durjan, AIR 1929 All 63; but see Panchanan Mondal v. Tarapada Mondal, AIR 1961 Cal 193 [LNIND 1960 CAL 86]. 20. Kishori Lal v. Babu Ram, (2003) 1 RCR (Civil) 807(P&H). 21. AIR 2005 Jhar 1 [LNIND 2004 JHAR 196]. 22. AIR 2000 Ker 408 [LNIND 2000 KER 309]. 23. Chinnathambi Gounder v. Royal Gounder, AIR 1979 Mad 285 [LNIND 1979 MAD 87]. 24. Hari Shanker Mishra v. Vice Chairman, Kanpur Development Authority, AIR 2001 All 139 [LNIND 2001 ALL 96]. 25. Seetaraswami v. Narsingha Panda, AIR 1975 Ori 73; see also Jattu Ram v. Hakam Singh, AIR 1994 SC 1653. 26. Veera Pillai v. Ponnambala Pillai, (1899) 9 Mad LJ 137. 27. T. Bhaskara Rao v. Tangella Mudi Gabriel, AIR 2004 AP 106. 28. Subramania Ayyar v. Saminatha, (1898) ILR 21 Mad 69. 29. Salabat v. Abdul Rahman, 41 IC 248. 30. These rights are subject to other provisions contained in this chapter, see ss. 118–121 of T.P. ActSamar Bahadur v. Jit Lal, AIR 1924 All 390. 31. Bhairab Chandra v. Jiban, AIR 1921 Cal 748. 32. Jattu Ram v. Hakama Singh, AIR 1994 SC 1653; Chidambara Chettiar v. Vaidilinga, (1915) ILR 38 Mad 519. 33. Krishna Nair v. Kundu Nair, (1912) Mad WN 535. 34. Re Mathur Lalbhai, (1901) ILR 25 Bom 702.

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 8

CHAPTER 8 Of Gifts GIFT

Section 122 “Gift” defined.— “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. Acceptance when to be made.— Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

DEFINITION A gift is a transfer of property without any monetary consideration by one person in favour of another and accepted by him or by a person on his behalf. A gift, where both the parties are Muslims, is governed by the provisions of the Quranic law, and not by the present Act, in so far as it is inconsistent with the provisions of this Act. ESSENTIALS OF A GIFT The essentials of a gift are as follows: (1) Donor and the Donee The parties to the gift are, the donor, who makes the gift and the donee who or on whose behalf the gift is accepted. The donor must be a person who is competent to contract and authorised to transfer the property. Where the gift is by several donors and one of them,

(IN) Poonam Pradhan Saxena : Property Law

although was a minor but, had represented him to be 22 years old, the gift would be valid unless it is proved that his admission with respect to his majority was under duress, coercion or undue influence.1 A person who is not competent to contract cannot gift his property. A guardian of the property of a minor cannot make a transfer of the property without the permission of the court and if he exceeds his powers and executes a gift, the same would be void.2 The donor must be either the owner of the property or should possess an express authorisation from the owner to execute a gift, otherwise it would be invalid. For instance, a Hindu man cannot execute a valid gift of the property owned by his wife.3 The donee on the other hand can even be a minor.4 The donee must be an ascertainable person. Therefore a public5 or an unregistered society6 cannot be a donee. A gift can be made in favour of two or more donees, but they must be ascertainable persons. Gift to two donees jointly with the right of survivorship is valid in law.7 Gift to an Idol or for Religious Purposes Gifts to an idol, who though is a juristic person, and capable of holding property, is not a gift within the meaning of s 1228 as an idol is not a living person. It is also said, that an idol is a symbol of a deity, and it is contrary to the Hindu religion for an idol to make an acceptance of worldly goods.9 A gift to an idol not yet instituted is invalid,10 unless the transfer is to Pujaris on trust to establish an idol.11 A gift to dharam is void for uncertainty as the object is too vague and uncertain12 but property can be gifted to religious or charitable institutions with conditions.13 (2) Subject Matter of a Gift Gift must be made of existing movable or immovable property capable of being transferred. Future property cannot be transferred. The share obtained after partition of the joint family property can be gifted, but not where the coparceners are joint, as in that case their interests would be fluctuating.14 Even a gift of property that is obtained after a preliminary decree of partition is passed by the court is valid.15 (3) Interest Created by the Donor The donor is competent to create either an absolute interest in the property in favour of the donee or even a limited interest. For example, A gifts his immovable property in favour of B and puts a condition that he would enjoy the property exclusively without any body else having any right over it. This interest created here is an absolute interest. However, if the gift says that he must enjoy the property only for his life time and after his death, the property would revert back to A or his heirs, it would be the creation of a limited estate in favour of B. (4) Gift Must be Made with Free and Voluntary Consent The offer to make the gift must be voluntary. A gift therefore should be executed with the free consent of the donor. This consent should be untainted by force, fraud or undue influence.16 Page 2 of 24

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Mere relationship between the donor and donee is not a conclusive fact of the exercise of undue influence and it must be proved that the transaction is unconscionable.17 For proving that the deed was exercised with free and voluntary consent of the donor, it must be proved that the physical act of signing the deed coincided with the animus, or the mental act, i.e., an intention to execute the gift. If both the elements are present the gift would be executed with free and voluntary consent, and would be valid.18 A bare allegation of the gift being concocted or the non-appearance of witnesses would not indicate non-execution of the gift,19 more so when the executant admits its execution.20 Undue Influence The term ‘undue’ literally means ‘unwarranted, or unjustified unnecessary or uncalled-for’ and influence means ‘power, or pressure or authority’. Undue influence therefore means an uncalled for or unjustified authority or pressure that a person may exercise over other, and by exercising that unjustified pressure obtains a benefit under a gift deed. Thus, if the allegation is that the gift is obtained after exercising undue influence, three stages of consideration of undue influence are important:21 (i) Are the relations between the donor and donee such that the donee is in a position to dominate the will of the donor; upon this point, influence alone will be made out. Once this is established the second stage has to be reached, i.e.; (ii) Has the donee used that position to obtain an unfair advantage over the donor? It is not mere influence, but undue influence that should be proved. (iii)Upon the determination of the second issue, the third consideration that arises now is, who has the ‘onus probandi’ or burden of proof? If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. In such cases, the burden of proof shifts on the donee, and it is he who has to prove that the deed was read over and understood by the donor. Mere old age would not raise a presumption of the use of undue influence. Where the executant was old and was undergoing intermittent hospitalisation during the period of execution, a gift executed by her would be valid and the burden does not shift on the donee to prove that it was free from vitiating factors more so as the executant was a law graduate and the evidence of the doctor showed that she was capable of taking care of herself at the time of execution.22 Rules in Case of Pardanashin Women In case the gift deed is executed by a pardanashin woman, and the transaction appears to be unconscionable on the face of it or to the disadvantage of the executant herself, the burden of proving that no unfair advantage was taken by the donees is on the donees themselves. They have to prove that the gift deed is genuine. If the gift deed was in a language that is understood by the woman, it must also be proved that the implication of the act was explained to her. If the deed is in a language that the executant is not familiar with, the beneficiaries must prove Page 3 of 24

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that it was not only read over to her, but was translated to her in a language that she understood and was also explained to her. If they fail to prove it, the gift deed would be treated as invalid.23 This rule has also been applied in case of a very old man, with weak eyesight24 and an old and infirm lady of 77 years who was ailing for nearly four years prior to the execution of the alleged deed.25 The courts have specifically held that there is no reason why a rule which is applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate but is not pardanashin. As the object of the rule is to protect the weak and helpless, it would not be restricted to woman of a particular community only. The Privy Council in Farid-un-nissa v. Mukhtar Ahmed,26 made the following observations: The law of India contains well known principles for the protection of persons, who transfer their property to their own disadvantage, when they have not the usual means of understanding the nature and effect of what they are doing. In this it has only given the social development which Indian social usages make necessary to the general rule of English law which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is a part of the law relating to personal capacity to make binding transfers or settlement of property of any kind. The real point is that the disposition made must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it. The parties to prove the state of settlor’s mind are the parties who set up and rely on the deed. They must satisfy the court that the deed has been explained to and understood by the party thus under a disability either before execution or after it under circumstances which establish adoption of it with full knowledge and comprehension. Further the whole doctrine involves the view that mere execution by such a person although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is itself no real proof of a true understanding mind in the execution. Evidence to establish such comprehension is most obviously found in the proof that the deed was read over to the settler and where necessary explained. If it is in a language which she does not understand, it must of course be translated and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances of each case.

In Kartari v. Kewal Kishan,27 the property was owned by a 70 year old widow, W who was ailing. She had a daughter to whom she was very attached. This daughter was looking after her mother as well as managing her properties. When the daughter was away, the distant male collaterals of W approached her and on the pretext of showing her to a doctor, took the old lady to a place away from her place of residence and got her signature on the gift deed already prepared by them. The deed was attested and registered the same day and the lady was brought back to her house after that. This whole episode happened while the daughter was away. On returning the daughter heard from people about the gift deed and when she inquired from her mother, all that the lady could tell was that she was taken to some place and was made to sign some papers. The daughter and the mother then went to the place where the deed was registered and lodged a complaint at the police station to the effect that the deed was obtained by the collaterals by fraud and undue influence. The lady died shortly thereafter and the collaterals took possession of the property. The daughter filed a suit on the ground that the gift deed was obtained by the collaterals through fraud, and undue influence and was therefore void. The court explained the meaning of undue influence and observed, that the beneficiaries here had taken a leading part in the execution of the gift deed, and this by itself is sufficient to prove that they dominated the will of the donor and exercised undue influence in obtaining an unfair advantage in as much as they deprived the natural heir, namely the daughter, of the entire properties. The court also observed that the beneficiaries under the deed failed in Page 4 of 24

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proving that, the lady understood what was written in the deed, or that it was read over and explained to her. This was mandatory to prove as the language of the deed was one that she was not familiar with. The physical act of signing the deed did not coincide with the mental act of an intention to sign it. The court held that the gift deed was not valid as it was not executed with the free consent of the donor. Her consent was tainted with undue influence and fraud. It must be noted that age alone is not the determining or the disability criteria for the validity of the gift. The primary consideration is the free and voluntary desire of the donor to execute the gift.28 In Afsar Sheikh v. Soleman Bibi,29 the owner of certain properties, A, after executing a gift, himself instituted a suit for a declaration that the gift had been executed by him because of the exercise of fraud and undue influence. His case was that a person X and his wife had got a will executed in their favour from him. He sought its cancellation through a registered cancellation deed and took the help of B, whom he trusted. However, B took him to a place where he was to execute a registered cancellation deed, but instead got a gift executed in his favour using fraudulent means. Thereafter B sold some of the property to a person C. A, the original owner filed a suit for the cancellation of the gift deed and for a declaration that the sale executed of the property by B in favour of C was invalid. The trial court found on evidence that though A was an old man, he was in sound physical and mental health and was quite fit to look after his own affairs. There was no evidence to show that the mental capacity of the donor was temporarily or permanently affected or enfeebled by old age or other cause; so that he could not understand the nature of deed or the effect and consequences of its execution. Thus, the mere fact that he was illiterate and old was no proof of mental incapacity. Even though the relations of the donor and the donee were such, that the donor trusted the donee, yet from this it could not be said that any undue influence was exercised, more so as the witnesses testified, that A had himself requested them to attest the gift deed. The court therefore, held that the gift was valid. Where the donee is the wife of the donor30 or wife of the lawyer of the donor in absence of proof that the gift was executed under undue influence gift would be valid and not invalid for want of free consent.31 In Krishna Prasad v. Gopal Prasad,32 a woman aged 90 years executed a gift of her property in favour of B who was her grandson. His mother had died and his father had remarried. His step mother used to torture him and the grandmother was very fond of him. It was due to the considerations of fondness or love and affection for him that she gifted her property to him surpassing her own son, i.e., the donee’s father. The validity of this gift was challenged by the father of the donee and the donor’s son, on the ground that undue influence and fraud had been exercised at the instance of the donee. On evidence it was conclusively established that despite her age the donor was quite intelligent and not infirm and knew the implication of her acts. The court also held that burden of proof here, was on the person who had challenged the validity of the gift and not on the beneficiary under the gift. The gift was held as valid. Fraud Page 5 of 24

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Fraud means deception, and in relation to a transaction of gift, if the gift is obtained by deceiving the donor with respect to a particular fact, the consent would not be voluntary and the gift would be invalid. Gift not Void but Voidable A gift of immovable property effected by a deed of gift but brought about by undue influence of the donee, though the donor acted voluntarily in making it, is not void but is only voidable. A suit to set it aside, before possession can be claimed by the donor or anyone claiming under him, must be brought within the three years’ period.33 (5) Acceptance of the Gift The gift must be accepted by the donee himself. Acceptance can be validly given by a minor donee himself34 or by his mother35 or guardian36 or by an agent in case of a deity.37 If the guardian gives the acceptance on behalf of the minor, the minor on attaining majority can either accept it or reject it.38 Acceptance must be made during the life time of the donor and while he is capable of giving. According to s. 122, if the donee dies before acceptance, the gift is void. Law does not specify any specific mode of acceptance. However, it should be clear and not ambiguous. Unless there is acceptance there is no gift.39 Very slight evidence is required to prove acceptance, which would be presumed if there is no dissent.40 Acceptance need not be express41 and may be inferred42 or proved by oral evidence.43 The mere fact that the donee stood by the side of the donor at the time of the registration of the gift would not by itself establish acceptance on his part.44 Transfer of land in the wife’s favour not followed by acceptance creates no gift, particularly where the wife showed complete disinterest in the property.45 Subsequent actions of the donor and the donee like, the acceptance of the right to collect rents in the case of a gift of tenanted property by the donee at the behest of the donor,46 or mutation in the municipal register after filing a suit claiming his ownership47 or delivery of the unregistered deed to the donee48 or duly executed instrument of gift49 would lead to the presumption that the gift has been accepted or acted upon. Immediate delivery of possession of the gifted property is not an absolute requirement, for the completeness or the validity of the gift as is required in Muslim Law of gifts.50 However, if the donor retains the deed, it is not a necessarily proof of the fact that there has been no acceptance.51 Mere possession, however, cannot be treated as evidence of acceptance where the subject matter is jointly enjoyed by the donor and the donee. If the donor supports the validity of the gift, then non-delivery of possession is immaterial.52 Once the gift is accepted and acted upon it is valid and complete53 and cannot be cancelled.54 However where the validity of the gift itself is challenged on the ground that it was not accepted, the acceptance must be proved.55 For example, merely because the donor and the donee were residing in the same place,56 it does not give rise to a presumption that the gift was accepted by the donee during the life time of the donor. If the gift is to the donee, and this gift Page 6 of 24

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was preceded by a limited estate holder, the death of the donee after the acceptance and before the death of the limited owner will not affect the rights which are already vested in the beneficiary.57 The specific recital in the deed that possession is given, raises a presumption of acceptance.58 A third party cannot challenge the validity of a gift on the ground that the donee has not got into possession of the property.59 Transfer Gift is a transfer of property and involves a complete divesting of the ownership in the property by the donor.60 The terminology used does not matter and a transfer is gift even if styled as a release when made without consideration in a person having no right, title or interest in the subject matter.61 An allotment of property by way of partition62 or a release of a debt is not a gift.63 (6) Without Consideration The word ‘consideration’ refers to monetary consideration, and does not include natural love and affection.64 If the consideration is a nominal amount of money, or the property is grossly undervalued, yet the transfer would not be a gift but a sale. In fact, the passing of money as a consideration, howsoever small it may be, would destroy the nature of the transfer as of gift.65 Gifts in lieu of expectation of spiritual and moral benefit66 or a promise to look after the donor in her old age or through out life67 are transactions without any consideration. A transfer executed for consideration of a donee undertaking the liability of the donor is not gratuitous, and is not a gift.68 However, a settlement on a wife even where the marriage proves to be invalid is a valid gift.69 A transfer for services rendered may be a gift, if the services are the motive, and not the consideration, for the transfer.70 A deed of gift by which property is conveyed, transferred and exchanged as a consequence of a family arrangement is a deed of gift, even though the donee agrees to re-convey the property for a specified sum if called upon by the donor to do so within 10 years.71 Similarly an undertaking by the donee that he will permit the donor to live in a small room of the gifted premises and would pay him R s. 100 per month as maintenance, is not a ‘consideration’.72 The object of the gift should not be unlawful or immoral. A ‘gift’ in consideration of past, or future cohabitation is immoral and thus invalid.73 GIFT AND WILLS In a gift, generally, there is an immediate transfer of ownership, while a Will takes effect from the death of the person who executes it. Secondly, a will by its very nature is revocable, while a gift can be revoked only when it is a conditional gift. Unless there is a transfer in praesenti the document cannot be a gift or a settlement.74 Where there is no absolute specific and instant Page 7 of 24

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dispossession75 and the conferment of right is postponed till life time of executant76 it would be a Will. In determining whether a document is a gift or a will, the nomenclature of the deed and the amount of stamp paid on it though relevant are not conclusive, and the substance of the document must be examined to find the true intent of the executor.77 TRANSFER HOW EFFECTED

Section 123. Transfer how effected.— For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.

Immovable Property Where immovable property is gifted, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.78 A gift of immovable property is invalid without a registered instrument even if the intended donee is put in possession.79 An oral gift is void in law, unless there is a specific statutory provision dispensing with the formalities for gifts as laid down in the Act.80 Where the son claims properties on the basis of an oral gift made by the father which he could not prove, the gift is not valid merely on the basis of his residing in the properties81 but 12 years’ possession under an oral gift will perfect a title by prescription.82 If the unregistered gift is by way of dowry to a bridegroom83 or appears as recitals in an unregistered petition to the Collector84 or by way of entries in a mutation register,85 they would be void as mandatory requirements of writing, attestation and registration have not been complied with. A release deed which unambiguously transfers the right, title and interest of the executant, and is attested by two witnesses, would operate as a gift.86 But where the gift appears to be unconscionable and is attested by only one attesting witness, it is not a valid gift.87 Attested A gift requires attestation by a minimum of two attesting witnesses88 failing which it is void.89 A scribe is a competent witness if he has animus to attest.90 If validly attested and registered, a gift deed does not require formal proof under the Indian Evidence Act, 1872.91 Attesting Page 8 of 24

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witnesses can be examined by the donee if the validity of a gift-deed isspecifically denied,92 but if the attesting witness also denies execution of the gift deed, the same would be invalid.93 In Brij Raj v. Sewak Ram,94 a gift deed was executed by the original owner but was presented for registration by a duly authorised Power of Attorney. The property was in possession of the tenants. The donee filed a suit for eviction, and the tenants raised an objection that the deed was not validly executed. The document was duly attested by two witnesses out of whom one was examined to prove the deed. The court held that the gift was valid. If the donor himself admits execution of the deed, the gift is duly proved even if one of the witnesses only testifies its execution.95 Where the witnesses testify to the execution of a gift, the gift would be treated as valid, but if the evidence of one of the witness is not reliable, and it is not established that the donor, who was an old man ailing both physically and mentally, signed in presence of the witness, the gift is not validly established.96 Registration Registration is necessary in all cases of gift of immovable properties and the title cannot pass without there being a registered deed of gift.1 A document which evidences a gift even though made by a Muslim cannot be acted upon unless it is properly attested and registered.2 A gift is valid and complete on registration.3 Although a registered document carries with it a presumption that the gift was validly executed but a mere registration will not perfect an imperfect gift if any of the essential ingredients of a gift are lacking.4 While acceptance of the gift must be during the lifetime of the donor, its registration need not be during his lifetime.5 After the instrument of gift is handed by the donor to the donee and accepted by him, the donor cannot revoke the gift before registration,6 but can do so if it is not accepted by the donee.7 Thus where a gift has been effected by a registered instrument duly attested and the gift has been acted upon by the donee, the title legally passes to the donee and cannot be defeated by any intention of the donor to the contrary.8 Property given to the daughter at the time of her marriage by way of pasupu kumkuma by way of a written deed does not require registration.9 MODE OF TRANSFER—MOVABLES For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed by the transferor or by delivery of the subject matter of the gift.10 Such delivery may be made in the same way as sold goods may be delivered.11 Till handing over of goods takes place, the gift is incomplete.12 A fixed deposit of money by a person in a bank repayable to himself or his wife or survivor,13 or payable to ‘either or survivor’14 is not a gift. Similarly, mere entries in account books in favour of the wife15 or where money is deposited in bank but the certificate is retained by the donor,16 is not a gift as there is no delivery of the subject matter of gift, but a transfer from the account of the donor to that of the donees will make it a valid gift.17 Page 9 of 24

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Even with respect to movable properties a gift cannot be made by a mere verbal declaration18 and in order that a gift of movable property is valid and complete, the donor should do all that he can to put the subject-matter of the gift within the power of the donee to obtain possession.19 For example, for the gift of the share-certificates, the donor makes them out in the name of the donee, gets it registered as well as delivers its possession and nothing is left to be done so far as the vesting of rights in the donee is concerned the gift is complete.20 Delivery of Possession A gift after delivery of possession becomes irrevocable21 but in order to be valid a gift should be followed by possession and if the gifted property is capable of physical possession, nondelivery of the property makes a gift invalid.22 Delivery is not necessary where the donee is a minor and is living with the donor and under his care.23 The rules applies to Hindus24 and delivery of possession is essential to the validity of a gift.25 A gift of seven villages by a Hindu woman, made by a registered deed is valid although she reserved for herself a life interest in three of them. A gift by the husband in favour of his wife absolutely, but with a reference to the son does not indicate any intention of creating any trust or of making any conveyance of the properties in favour of the son, and the wife has a perfect title in the properties gifted.26 Collusive Gifts A collusive gift is one that is not genuine and has been executed in order to defeat the rights of a third party. Such collusive deeds are void. In Surendra Kumar v. Nathulal,27 the owner of the properties, A mortgaged them to B. B in turn mortgaged them to C who effected a submortgage of the same property by a usufructuary mortgage to D. D started demolishing the rooms, and A filed a suit for injunction and declaration of easement rights over the property. During the pendency of this litigation, A gifted the property to X, who filed a suit for redemption of the property. B, C and D claimed that the gift was in fact a collusive gift to defeat their rights as mortgagees and was therefore void. The court held that the gift was valid as A himself admitted its execution, and therefore X had a right to redeem the property. GIFT OF EXISTING AND FUTURE PROPERTY

Section 124. Gift of existing and future property.— A gift comprising both existing and future property is void as to the latter.

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A gift must be of existing property. A gift comprising both existing and future property is void as to the latter. A gift cannot be of future property.28 A gift of a right of management29 or of future revenue of a village is invalid.30 A gift of a sum not available with the firm or the family or a company, which is not a banking company and has no overdraft facility, is invalid.31 GIFT TO SEVERAL OF WHOM ONE DOES NOT ACCEPT

Section 125. Gift to several of whom one does not accept.— A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.

GENERAL PRINCIPLE The rule contained herein refers to gift made by a donor to two or more persons. As the gift is not valid till it is accepted, acceptance by all is necessary if the gift as a whole is to be treated as valid. However, if one out of several donees or more do not give the consent the gift does not fail in its entirety and is valid with respect to the shares of those who have accepted it. It be void only to the extent of the shares of those who have not given the consent. For example, A is the owner of three pieces of land, X,Y and Z. He gifts these three properties by the same document to B, C, and D respectively. B and C do not accept the gift but D gives his acceptance. The gift is valid to the extent of the shares of D and is void with respect to X and Y that were given to B and C. WHEN GIFT MAY BE SUSPENDED OR REVOKED

Section 126. When gift may be suspended or revoked.— The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

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Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations (a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.— (b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure R s. 10,000 out of the lakh. The gift holds good as to Rs. 90,000, but is void as to R s. 10,000 which continue to belong to A. CONDITIONAL GIFTS A gift is primarily a contract and if both the parties agree that the gift would be revoked on the happening of an event the happening of which does not depend purely on the wishes of the donor, if that event happens, the gift will be revoked. This event may be certain or uncertain. It may happen or may not happen. However, if the revocation of the gift is purely on the wishes of the donor, then the gift is void. For instance, the donor and the donee agree, that if B’s son dies during the lifetime of the donor, the gift would be revoked. The gift would also be revoked if the son dies during the lifetime of the donor, as the death of a person is not dependent purely on the wishes of the donor. However, if the condition is that after six months from the date of the execution of the gift, the donor if he so wants may revoke it, this condition is void, as here the revocation is depended purely on the wishes of the donor. The gifts can therefore validly be revoked, in two situations: (i) The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; (ii) The gift can be revoked, in case, if it was a contract it could have been rescinded.32 Condition Precedent and Condition Subsequent A gift may be subject to a condition precedent or a condition subsequent if the condition precedent is impossible or illegal, or immoral, the gift fails. A gift may be subject to a condition subsequent and the gift fails and property reverts back to the donor if the condition is not fulfilled.33 Illustrations of Revocable Gifts

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Following are illustrations of gifts with a condition subsequent and are revocable if the condition happens: (i) A condition of residence in a gift of a house34 failing which the gift will be forfeited; (ii) A condition in a gift by a man sentenced to life imprisonment that should he come back the gifted land will come back to him;35 (iii)A gift to a Hindu widow on the condition that gift will revert back to the donor if she remarries;36 (iv)A gift to a daughter with a condition that only her issue will enjoy it.37 Where an unconditional gift deed and an agreement between the donor and the donee were executed on the same day, the conditions prescribed in the agreement would attach to the deed as gift deed and the agreement would form part of one transaction. Thus where via a gift deed the land was gifted unconditionally to the donee, however, by another agreement executed on the same day it was stipulated that the donee was to construct a college building on the land within a time of six months failing which the donor would have a right to take back the possession, it is a conditional gift.38 A gift to an ‘adopted son to look after and perform obsequies of adoptive parents’ would fail on the failure of adoption.39 Donor has no power of revocation40 unless the condition is expressly made at the time of making the gift41 as part of one and the same transaction.42 In Tila Bewa v. Mana Bewa, 43A was the owner of certain properties. She executed a gift deed in favour of W, in the hope that W would marry her son, live with them, and look after both of them in their old age. Thereafter W married her son and came to live with them. Subsequently the son died, and after a while W felt neglected and went back to her natal place. W applied for mutation of names, but A executed a deed of cancellation on the ground that as the gift was not acted upon the same could be cancelled. She pleaded that it was a conditional gift and was subject to a condition that W would live with her and look after her. Since W had gone back to her father’s place, the condition was not fulfilled and she was empowered to revoke the same. The court held that if the deed is a conditional gift, the fact that it is conditional must be apparent from the language of the document. The document should also provide that in case the condition that the gift is subject to is not fulfilled, the gift would be revoked. It is only in such a situation that the gift can be revoked. Thus unless the gift deed contains a clause for its revocation, it cannot be revoked. In the present case, the gift deed, the court held did not contain any revocation clause. What was contained in the gift was the wish of a mother that the daughter-in-law would live with her and look after her. But it did not provide as to what would happen if she did not comply with her wishes. The gift therefore was held as an absolute gift, and once it was executed, it could not be revoked. In Chameli v. Naresh Kumari, 44 a gift deed was executed by the owner in favour of the donee on the condition that they would serve him during his life time, failing which, it would revert back to the donor or to his heirs. The donee properly served the donor till his death and it was held that the gift remained perfectly valid and absolute as the condition stipulated therein was adequately fulfilled by the

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donee. Revocation by Rescission The physical act of signing the deed has to coincide with the intention of making a gift.45 The court has to be convinced after a fair understanding of the whole matter46 that the intention to make the gift originated with the donor, and he had the benefit of independent advice.47 Gift can also be revoked in case of fraud48 coercion49 or undue influence such as a gift by a child to a parent;50 a cestui que trust to a trustee;51 a religious inferior to a religious superior;52 or a client to a solicitor53 or to a person who is considered as an inmate of the family.54 The donee has to rebut the presumption of undue influence, by evidence proving that the donor exercised a free and independent will55 and in cases of pardanashin women he must also show that the transaction is bona fide and fully understood56 by her due to a special cloak of protection thrown round them.57 Absence of a power of revocation in the deed is a circumstance, which indicates undue influence, but it is not conclusive.58 Where there is evidence of spiritual domination over the mind of the donor and an attempt to keep the transaction a guarded secret, with the registration of deed done at a far away place amongst evidence of donee having a life long ill-health and almost a blind religious devotional frame of mind, the gift of his only property is vitiated by undue influence and fraud.59 The right of revocation is not transferable60 but in case of the donor’s death, the cause of action survives to his legal representatives.61 No Revocation for any other Reason A gift is effective but cannot be enforced until the deed is registered.62 A donor cannot unilaterally revoke a valid registered and complete gift by executing a registered deed of cancellation,63 for any other reason64 such as that the holding is not transferable,65 or that he had not read it.66 Possession by donee under a gift incomplete for want of a registration will stop the donor from denying the donee’s title.67 Absolute Gifts An absolute gift is without a condition and is irrevocable. When a person purports to make a gift and at the same time reserves the liberty of revoking it the gift is void.68 Thus, an absolute gift subject to a condition restricting alienation absolutely is valid69 but the condition would be void.70 A mere pious wish that the donee should maintain the donor will not make the gift conditional, as the gift is absolute.71 A condition of residence in a gift of a house in an absolute gift is invalid and cannot be enforced.72 A gift to which an immoral condition is attached is not void though the condition is void and the gift is considered unconditional.73 Where no specific condition for revocation has been made in the deed itself, in the event of the failure of the donee to render services to the donor or maintain the donor, the gift cannot be revoked.74 A condition in the gift absolutely restraining the donee from alienating his interest in the

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property is void,75 but such a gift is valid as the donee is entitled to ignore this condition. ONEROUS GIFTS

Section 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 donee 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 competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

Illustrations (a) A has shares in X, a 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. GENERAL PRINCIPLE A gift with a burden is an onerous gift. This section incorporates a rule that if by a single instrument the donor confers in favour of the donee a benefit and a burden, the donee has to either accept the gift in totality or reject it in its entirety. He cannot accept only the benefit and reject the burden. This principle is based on a maxim, qui sentit commodum sentire debetet onus. It means that the one who receives an advantage must bear the burden as well. The distinguishing feature between the first and the second paragraph is that gift by a single Page 15 of 24

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transfer is to be accepted or rejected by the donee in its entirety, but if several properties are gifted to a donee through separate transfers, then, he is at liberty to pick and choose the ones he wants and validly reject the one he does not want. Where the donee is a minor he can express his option soon after attaining majority or else he would lose the option. When a minor has been made a shareholder in a joint stock company, he cannot repudiate his holding in the company if he has drawn dividends after attaining majority.76 UNIVERSAL DONEE

Section 128. Universal donee.— Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.

GENERAL PRINCIPLE Universal donee is a person who gets the complete property of another under a gift deed. If any portion of the donor’s property, whether movable or immovable, is excluded from the gift, the donee is not a universal donee. This section enacts a principle, that if a person who has to pay debts, gives his total property to another under a gift deed, this donee becomes personally liable to pay the debts of the donor. This liability can extend only to the extent of the property that he receives under the gift but cannot exceed it. If the total property is not gifted and the donor retains a part, the creditor is not entitled to the benefit of this rule.77 For instance, A owes B a debt of Rs. 20 lakh. A has property worth Rs. 40 lakh. He executes a gift of this property and all his assets in favour of C and does not retain anything of value with him. C would be termed as a universal donee. It is his liability to pay the debt of Rs. 20 lakh to B, failing which B can rightfully proceed against C for this claim. In the same illustration, suppose the value of the property that C receives under the gift is Rs. 15 lakh. In this case C’s liability would be only to the extent of Rs. 15 lakh and not more. The rule fastens a personal liability upon the universal donees for all the debts due by the donor at the time of the gift.78 The liability of the universal donee to pay the decree debts of the donor arises not by reason of the donee accepting the gift and of being the legal representative of the deceased but also by the very terms under which he becomes a universal donee. Where the entire properties were settled in favour of A with no one else empowered to use them, A alone, as the universal donee is liable to discharge the burden as well as liabilities to the extent comprised in the gift deed.79 When a Hindu widow transfers the whole of her Page 16 of 24

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estate in favour of the next reversioner, the donee is liable for her maintenance80 or for her debts.81 Similarly, when a person making a gift of his entire properties in faovur of the donee subject to the payment of the amount due under a promissory note executed by the donor in favour of another person, the payment of debt is binding on the donee82 as the donee can not retain the benefit, and at the same time repudiate the burden. Legal representatives of judgment debtors are liable for the debts of the predecessor to the extent of the estate acquired by the legal representatives from their predecessor.83 When a universal donee sues to redeem a mortgagee of the donor, the mortgagee is allowed to take a simple contract debt of the donor on to the mortgage debt.84 SAVING OF DONATIONS MORTIS CAUSA AND MUHAMMADAN LAW

Section 129. Saving of donations mortis causa and Muhammadan law.— Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law. Gifts can be executed by a person generally during the prime of their life or in an advance age. It can be executed by a healthy person or by a sick person. Law does not specify any age or health condition for the execution of the gift, other than the primary competency to contract, such as the age of majority or soundness of mind. However, if a person executes a gift when he has an apprehension of death, these gifts are called donation mortis causa under general law and gifts made during fatal illness or marz-ul maut under Muslim law. Section 129 expressly saves the application of the rules of the Act to donation mortis causa.

DONATION MORTIS CAUSA Section 191, of the Indian Succession Act, 1925, enables an Indian, except a Muslim to make a gift in contemplation of death. The primary difference between the gifts under this Act and the rule of donation mortis causa is that the later applies only to movable property while gifts under this Act can be of both movable or immovable property. According to s 191, where a person is ill and he is under an apprehension that he may die soon, he is empowered to dispose of his movable property by a gift in the same manner as under a will. These gifts are called donation mortis causa. They can be of only movable property and not immovable property. Secondly, if the person recovers from his illness, the gift is automatically revoked. Thirdly, if during the illness of the donor, the donee dies the property reverts back to the donor. What is essential for donation mortis causa, is that there must be delivery of possession of this property. Thus the five essentials of donation mortis causa are:85 (i) The gift must be of movable property only; Page 17 of 24

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(ii) It should have been made in contemplation of death; (iii)The donor is suffering from an illness and has an immediate apprehension of death; (iv)The possession of the property is delivered to the donee; (v) The gift becomes void if the donor recovers from his illness or the donee predeceases him. Gifts Under Muslim Law The rules of the TP Act do not apply to a gift under Muslim law and an oral gift86 followed by a delivery of possession87 is permissible88 but if it is in writing it requires registration.89 An oral gift under Muslim law has to be proved and if not proved to the satisfaction of the court will be invalid.90 Where the gift is made in presence of parents but the mother is not examined as a witness91 or when made in isolation within the confines of92 home the gift is not sufficiently proved. Hiba-bil-iwaz in India, is a gift for an exchange, and is in the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as provided under s. 54 of the Act.93 An oral gift by a Muslim is valid, if the requirements of Muslim law are satisfied. If the deed is contemporaneous with the gift, it must be registered, but not if the gift is antecedent to the deed.94 Gifts Made During Marz-ul Maut Under Muslim Law A gift made in contemplation of death under Muslim law is called gift, made during death bed/fatal illness or marz-ul maut. Such a gift is, in fact, a combination of both a gift and a Will. Following the essentials of a Will under Muslim law, the gift is valid only to the extent of one third of the property of the donor95 and cannot be made in favour of the heirs till the other heirs give their consent.96 Following the characteristics of a gift, not only should there be an offer and acceptance, but also, the gift must be followed by a delivery of possession of the property. However, unlike donation mortis causa, they can be made with respect to both movable and immovable property of the donor. CONSTITUTIONALITY OF THE SECTION This provision provides an exception in favour of only Muslims and has been challenged as violative of 14 and 15 of the Constitution of India that prohibit discrimination on grounds of religion. The court has held that it is not violative of Art 14 of the Constitution on grounds of discrimination based on religion even though it applies only to Muslims as it is based on a reasonable classification between Mohammedans and others, having regard to the well-known fundamental differences between the religion and customs of Mohammedans on one hand and the religion and customs of others.97

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1.

Patel Prabhudas Hergovandas v. Heirs of P.B. Kachrabhai, AIR 2007 Guj 148 [LNIND 2007 GUJ 147].

2.

Lakhvinder Singh v. Paramjit Kaur, 2003(4) RCR (civil) 26 P&H.

3.

Chand Bee v. Hameed Unnissa, AIR 2007 AP 150 [LNIND 2006 AP 1137].

4.

K. Balakrishnan v. K. Kamalam, AIR 2004 SC 1257 [LNIND 2003 SC 1104].

5.

Pallayya v. Ramavadhanulu, (1903) 13 Mad LJ 364.

6.

Mathura Kuer v. Dharan Samaj, (1916) 14 All LJ 1038.

7.

Cheria Kannan v. Karumbi, AIR 1973 Ker 64 [LNIND 1972 KER 127].

8.

Rambrahma v. Kedar, AIR 1923 Cal 60; Harihar Prasad v. Sri Gurugranth, AIR 1930 Pat 610; Pallaya v. Ramavadhanulu , (1903) 13 Mad LJ 364; Narasimha v. Venkatalingam, AIR 1927 Mad 636 [LNIND 1927 MAD 26](FB); Ramalinga v. Sivachidambara, (1919) 42 Mad 440. See also Ram Kishan Mission v. Dogar Singh, AIR 1984 All 72 [LNIND 1983 ALL 1].

9.

Ramalinga v. Sivachidambaram, (1919) 42 Mad 440; Bhupati Nath v. Ram Lal, (1910) 37 Cal 128.

10. Phundan Lal v. Arya Prithi, (1911)33 All 793; Nogendra Nandini v. Benoy Krishna, (1903) 30 Cal 521. 11. Mohar Singh v. Het Singh, (1910) 32 All 337; Bhupati Nath v. Rarnlal, (1910) 37 Cal 128; Chatarbhuj v. Chatarjit, (1911) 33 All 253. 12. Runchordas v. Parvatibai, (1899) 23 Bom 725. 13. Hari Singh v. Bishanlal, AIR 1992 P&H 11. 14. Munnilal Mahto v. Chandreshwar Mahto, AIR 2007 Pat 66. 15. Renu Devi v. Mahendra Singh, AIR 2003 SC 1608 [LNIND 2003 SC 1262]. 16. Subhas Chandra v. Ganga Prosad, AIR 1967 SC 878 [LNIND 1966 SC 186]. See also Samitra Devi v. Sukwinder Pal, AIR 1990 P&H 23; Sukhdeo Rai v. Champa Debi, AIR 1985 Pat 89. 17. Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163 [LNIND 1975 SC 427]. 18. Shiv Kishan v. Hari Narain, AIR 2008 (NOC) 567 (All); Ranjeet Mehta v. Babban Mehta, AIR 2004 Jhar 58; Ramesh v. Tarachand, AIR 2008 (NOC) 1170 (Bom); Surjit Singh v. Vimla Devi, AIR 2008 (NOC) 969 (HP); Virender Singh v. Kashi Ram, AIR 2004 Raj 196; Balai Chandra Parui v. Durga Bala Dasi, AIR 2004 Cal 276 [LNIND 2004 CAL 301]; R. Kuppayee v. Raja Gounder, AIR 2004 SC 1248. 19. Sri Sannaboraiah v. Kanana Mallaiah, AIR 2010 (NOC) 148 (Karn); 2009 (5) AIR Kar R 371. 20. Radhika Devi v. Rajesh Kumar Niranjan, AIR 2009 Pat 109 [LNIND 2009 PAT 27]. 21. Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60. 22. Maniranjan Pillai v. K.K. Karunakaran, AIR 2011 Ker 55 [LNIND 2010 KER 788]. 23. Kishore Ray Thakur Bije v. Basanti Kumar Das, AIR 1994 Ori 11. 24. Ajmer Singh v. Atma Singh, AIR 1985 P&H 315 (In this case, the donor was father of defendant. There was misrepresentation regarding character of the deed and he was told that it was a special power of attorney). 25. Kunji Kuttiamma v. Kunji Kuttiamma, (2001) 1 KLT 797. 26. AIR 1925 PC 204. 27. AIR 1972 HP 117 [LNIND 1971 HP 31]. 28. Roshan Lal v. Kartar Chand, AIR 2002 HP 131 [LNIND 2001 HP 83]. 29. AIR 1976 SC 163 [LNIND 1975 SC 427]: (1976) 2 SCC 142 [LNIND 1975 SC 427]. 30. Inum Beevi v. K.S. Syed Ahamed Kabir, AIR 2001 NOC 25 (Mad). 31. Binswar v. Asha Lata, AIR 1969 Cal 111 [LNIND 1958 CAL 139]. 32. AIR 2001 Pat 1. 33. Ramchandra v. Laxman, AIR 1945 PC 54.

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(IN) Poonam Pradhan Saxena : Property Law 34. K. Balakrishnan v. K. Kamalam, AIR 2004 SC 1257 [LNIND 2003 SC 1104]; Ganeshdas Bhiwraj v. Suryabhan, (1917) 13 Nag LR 18. 35. Balwant Singh v. Chatin Singh, AIR 1985 P&H 74. 36. Ashkar Singh v. Rawal Singh, AIR 1992 P&H 148. 37. Ram Bharosee v. Rameeshwar Prasad Singh, AIR 1938 Oudh 26. 38. Habbib Ullah Bhat v. Jana, AIR 2003 J&K 32. 39. R. Kumarasamy Kounder v. V. Ezhumalai Kounder, (1996) 2 CTC 150 [LNIND 1996 MAD 35]; Venkatasubbamma v. Narayanaswamy, AIR 1954 Mad 215 [LNIND 1953 MAD 19]. 40. Maulji Muhammad Abdul Nayeem v. Jhonti Mahton, AIR 1917 Pat 551. 41. Shakuntla Devi v. Amar Devi, AIR 1985 HP 109 [LNIND 1985 HP 8]. 42. Gauranga Sahu v. Maguni Dev, AIR 1991 Ori 151. 43. Kolandiyli Ammal v. Changaram, AIR 1963 Ker 344 [LNIND 1963 KER 110]. 44. R. Jamunabai v. M.A. Anusuya, AIR 2001 Mad 392 [LNIND 2001 MAD 351]. 45. State of Punjab v. Sant Singh, (1976) 78 Punj LR 87. 46. Tara Sahuani v. Raghunath Sahu, AIR 1963 Ori 50 [LNIND 1962 ORI 71]. 47. Gorachand Mukherjee v. Malabika Dutta, AIR 2002 Cal 26 [LNIND 2001 CAL 341]; Puma Chandra v. Kalipada Roy, AIR 1942 Cal 386; Kalyanasundaram v. Karuppa, AIR 1927 PC 42; Venkatasubba Shrinivas v. Subba Rama, AIR 1928 PC 86. See also Nobadwepchandra Das v. Lake Nath Roy, AIR 1933 Cal 212; Gauranga Sahu v. Maguni Dei, AIR 1991 Ori 151. 48. Samrathi v. Parasuram, AIR 1975 Pat 140 following Kalyan Sundram v. Karuppi, AIR 1927 PC 42; Samrathi Devi v. Parsuram Pandey, AIR 1975 Pat 140; Balmukund v. Bhagwan Das, (1894) 16 All 185. 49. Nanak Chand v. Amilal, AIR 2003 (3) RCR (Civil) 260 (P&H); Mukhtiar Kaur v. Gulab Kaur, AIR 1977 Punj 257. 50. Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 [LNIND 1995 MAD 152]. 51. Baucha Bhoi v. Saria Bewa, AIR 1973 Ori 18 [LNIND 1972 ORI 17]. 52. Tirath v. Manmohan Singh, AIR 1981 Punj 174. 53. B. Thyagarajan v. Saraswathi Kittu, (1999) CTC 217. 54. J. Kuppuswami Mudali v. Mahalingam, (1977) 1 CTC 256. 55. Kesava Kurup Raghava Kurup v. Thomas Idicula, AIR 1969 Ker 21 [LNIND 1968 KER 20]. 56. Kunji Kuttiamma v. Kunji Kuttiamma, (2001) 1 KLT 797. 57. A. Sreenivasa Pai v. Saraswathi Ammal, AIR 1985 SC 1359 [LNIND 1985 SC 220]. 58. Vannathi Valappil Janahi v. Puthiya Purayil Paru, AIR 1986 Ker 110 [LNIND 1985 KER 7]; Narayani Bhanumathi v. Karthyayani Lalitha Bhai, (1973) KLT 961; see also Gangadhar lyer v. K.B.Iyer, AIR 1952 Tr & Coch 47. 59. Turmall v. Anwar Rasul, AIR 1973 Gau 90 [LNIND 1972 MAD 194]. 60. Deo Saran v. Deoki Bharthi, AIR 1924 Pat 657. 61. Kuppuswamy Chettiar v. Arumugam, AIR 1967 SC 1395 [LNIND 1966 SC 176]. 62. Ma Htay v. U Tha Hline, AIR 1925 Rang 184. 63. Mahim Chandra v. Ram Dayal, AIR 1926 Cal 170. 64. Debi v. Nandalal, AIR 1929 Pat 591. 65. Pawan Kumar v. Tilak Raj, AIR 2011 (NOC) 98 (HP). 66. Debt Saran v. Nandlal, (1929) 125 IC 127. See Tulsidas Kilachand v. Commr Income Tax, AIR 1961 SC 1023 [LNIND 1961 SC 1]. 67. Munni Devi v. Chhoti, AIR 1983 All 444. 68. Kulasekara Perumal v. Pathakutty, AIR 1961 Mad 405 [LNIND 1960 MAD 104]; Sonia Bhatia v. State of UP, (1981) 2 SCC 585 [LNIND 1981 SC 170]. 69. Gopal Saran v. Sita Devi, AIR 1932 PC 34. 70. Hiralal v. Gavrishankar, AIR 1928 Bom 250; Madhavrao v. Kashibai, (1910) 34 Bom 287.

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(IN) Poonam Pradhan Saxena : Property Law 71. Deba Prasad Bam v. Ashrukana Das, (1977) 81 Cal WN 449. 72. Subhash Chandra v. Nagar Mahapalika Kanpur, AIR 1984 All 228. 73. Subana v. Yamanappa, AIR 1933 Bom 209. 74. Ponnuchami Servai v. Balasubramanian, AIR 1982 Mad 281 [LNIND 1981 MAD 92]. 75. Poongavanam v. Perumal Pillai, (1997) 2 Mad LJ 169. 76. P.S. Deivaprasad v. P.S. Veerabadran, (2001) 1 CTC 520; Appadurai v. Mallinatha Nainari, (2001) TNLJ 52; Ramaswami Naidu v. Gopalakrishna Naidu, AIR 1978 Mad 54 [LNIND 1977 MAD 54]. 77. Thyyil Mammo v. Kottiath Ramunni, AIR 1996 SC 337. 78. Commr of Income Tax, Jaipur v. Hirehmal Nawalakha, AIR 2001 SC 3648 [LNIND 2001 SC 1724]; Girjaprasad v. Purshottam, AIR 1926 Bom 261; Deo Narain v. Kukar Bind, (1902) 24 All 319 (FB); Sari Bhusan v. Chandra Peshkar, (1906) 33 Cal 861. 79. R.N.Dawar v. Ganga Saran Dhama, AIR 1993 Del 19 [LNIND 1992 DEL 463]; Kuverji v. Municipality of Lonavla, AIR 1921 Bom 198; Lashkar Singh v. Rawal Singh, AIR 1992 P&H 148; see however, Sher Khan v. State of Orissa, AIR 2008 Ori 94, wherein it was held that the gift of land to an orphan made out of compassion by an erstwhile ruler was a valid gift as the donee was in possession of the property since long despite the fact that it was unregistered. 80. M. Singh v. Gram Panchayat, AIR 1974 Punj 28. 81. Ponthinoda Sainabi v. Vatakkiloda Aboobackerkoya, AIR 2001 Ker 331. 82. Venkatarayudu v. Subbamma, (1903) 13 Mad LJ 302. 83. Him Mani v. Anmol Singh, AIR 1928 All 699; Allan Gangadhara Rao v. G. Gangarao, AIR 1968 Pat 291. 84. Vartha Pillai v. Jeevarathammal, (1919) ILR 43 Mad 244. 85. Assudibai v. Haribai, AIR 1943 Sau 177. 86. Satyesh Chandra Banerjee v. Rani Banerjee, AIR 1977 Cal 509 [LNIND 1977 CAL 169]. 87. Kunji Kuttiamma v. Kunji Kuttiamma, (2001) 1 Ker LT 797. 88. Marci Celine DG Setssouza v. Renie Fernandez, AIR 1998 Ker 280 [LNIND 1998 KER 36]. 89. Raghunath Mohanty v Juti Devi, AIR 2010 (NOC) 149 (Ori); Samrathi Devi v. Parasuram Pandey, AIR 1975 Pat 140. 90. Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 [LNIND 1995 MAD 152]. 91. Shayama Devi v. Premvati, AIR 1996 All 57 [LNIND 1995 ALL 347]. 92. Mallo v. Baktawari, AIR 1985 All 160 [LNIND 1984 ALL 306]. 93. Raghunath Mohanty v. Juti Devi, AIR 2010 (NOC) 149 (Ori). 94. AIR 1999 SC 2003; (1999) 4 SCC 331 [LNIND 1999 SC 444]. 95. Surendra Kumar v. Nathulal, AIR 2001 SC 2040 [LNIND 2001 SC 1151]. 96. Nila Devi v. Bidyadhar Sahan, AIR 1999 Ori 69. 1.

D.N. Dawar v. Ganga Ram Saran Dhama, AIR 1993 Del 19 [LNIND 1992 DEL 463]; Gomtibai v. Mattulal, AIR 1997 SC 127 [LNINDORD 1996 SC 41]; Lim Charlie v. Official Receiver, AIR 1934 PC 67; Bachchi Lal v. Debi Din, AIR 1929 All 300; Hira Mani v. Anmol Singh, AIR 1928 All 699; Made Gouda v. Chenne Gouda, AIR 1925 Mad 1174 [LNIND 1925 MAD 40].

2.

Mayana Saheb Khan v. Mayana Gulab Jani, AIR 2011 (NOC) 97 (AP).

3.

A. Krishnan lyer v. Lakshmi Amma, AIR 1950 Tr & Coch 73; Ma Shin v. Ma Thin Kyi, AIR 1934 Rang 129.

4.

Abdul Rahim v. S.K. Abdul Zabar, (2009) 6 SCC 160 [LNIND 2009 SC 559]; Deo Saran v. Deoki Bharthi, AIR 1924 Pat 657.

5.

Kalyanasundaram v. Karuppa, AIR 1925 PC 42; Venkati Rama v. Pillati Rama, (1917) 40 Mad 204; Parbati v. Bajinath, (1913) ILR 35 All 3.

6.

Chennupati Venkatasubbamma v. Nelluri Narayanaswami, AIR 1954 Mad 215 [LNIND 1953 MAD 19]. See also Union Bank Ltd. v. Ram Rati, AIR 1954 All 595 [LNIND 1953 ALL 193]; Parbati v. Baijnath, (1913) ILR 35 All 3; Atmaram Sakharam v. Vaman Janardhan, AIR 1925 Bom 210 (FB); Venkatsubba Srinivas v. Subba Rama, AIR 1928 PC 86.

7.

Venkatasubbamma v. Narayanaswami, AIR 1954 Mad 215 [LNIND 1953 MAD 19].

8.

Bhagatrai v. Ghanshyamdas, AIR 1948 Nag 326; see also Dikshit v. Radha Krishna, AIR 1948 Oudh 226.

9.

P. Buchi Reddy v. A. Sudhakar, AIR 1999 Andh Pra 188.

10. Rameshwar Narain Singh v. Biknath Koeri, AIR 1923 Pat 165.

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(IN) Poonam Pradhan Saxena : Property Law 11. See The Transfer of Property Act 1882, s. 123. 12. Janki Das v. East Indian Rly Co., (1884) ILR 6 All 634; Natha Gulab v. Shatter, AIR 1924 Bom 88. 13. Paul v. Nathaniel, AIR 1931 All 596. 14. Krushandas Nagindas Bhai v. Bhagwandas Ranchhoddas, AIR 1976 Bom 153 [LNIND 1975 BOM 126]. 15. Chambers v. Chambers, AIR 1941 Mad 154; Commr of Income Tax v. Shyamo, AIR 1967 All 821. 16. Salibala Das v. Jitendra Kumar, AIR 1962 Ori 74 [LNIND 1961 ORI 37]. 17. K.P.Bros. v. Commr of Income Tax, AIR 1962 Raj 152. 18. Chanan Singh v. Pritam Kaur, AIR 1984 P&H 153. 19. Gara Surppadu v. Pandranki Kami Naidu, AIR 1984 Andh Pra 386. 20. Vasudev Ramachandra Shelat v. Pranlal Yayananda Thakur, AIR 1975 SC 1728; M.P.Bharucha v. Sarabhai, AIR 1926 PC 38. 21. Kasi Ammal v. Vellat Gounder, (1980) 2 Mad LJ 232. 22. Mukhtiar Kaur v. Gulab Kaur, AIR 1977 Punj 257. 23. Sunder Bai v. Anandi Lal, AIR 1983 All 23. 24. Muhammad Abdul v. Jhouti Mahton, 41 IC 389; Debt Singh v. Bansidhar, AIR 1922 All 44; Bhagwan Prasad v. Hari Singh, AIR 1925 Nag 199; Lallu Singh v. Gur Narain, AIR 1922 All 467 (FB); Phulchand v. Lakkhu, (1903) ILR 25 All 358; Pahalwan Singh v. Ram Bharose, (1905) ILR 27 All 169; Madhamao v. Kashibai, (1910) ILR 34 Bom 287; Balbhadra v. Bhowani, (1907) ILR 34 Cal 853; Dharmodas v. Nistarini Dasi, (1887) ILR 14 Cal 446; Bai Rambai v. Bai Mani, (1899) ILR 23 Bom 234; Nandu v. Chand Datt, 5 OC 89; Kanai Lal v. Kumar Purnendu Nath, (1946) 51 Cal WN 227; Revappa v. Madhava Rao, AIR 1960 Mys 97; Kali Das v. Kanhya Lal, (1884) 11 Cal 121. 25. Lallu Singh v. Gur Narain, AIR 1922 All 467 (FB). 26. Kuppala Obul Reddy v. Bonala Venpata Narayana Reddy, (1984) 3 SCC 447. 27. AIR 2001 SC 2040 [LNIND 2001 SC 1151]; (2001) 5 SCC 46 [LNIND 2001 SC 1151]. 28. Perumal v. Perumal, AIR 1921 Mad 137; Brindabini Behari v. Oudh Behari, AIR 1947 All 179. 29. Madhavrao v. Kashibai, 5 IC 599, (1910) ILR 34 Bom 287; for Bhumidari rights, see Deo Narain v. Board of Revenue, AIR 1964 All 419 [LNIND 1963 ALL 142]. 30. Amtul Nissa v. Mir Nuruddin, (1898) ILR 22 Bom 489. 31. Commr of Income Tax Kanpur v. R.S. Gupta, AIR 1987 SC 785 [LNIND 1987 SC 115]; Controller of Estate Duty v. Vithal Das, AIR 1987 SC 791. 32. Except for want of consideration. 33. Somashekarrao v. K.S.Mishra, AIR 1944 Nag 185; Govindamma v. Secretary Municipal First Grade College, Chintamani, AIR 1987 Kant 227 [LNIND 1986 KANT 44]. 34. Ambika Charan v. Sasitara, (1915) 22 Cal LJ 61; Bhoba v. Peary Lall, (1897) ILR 24 Cal 646; See also Sirish Chandra v. Kadambini, AIR 1926 Cal 1175. 35. Venkatarama v. Aiyasami, AIR 1923 Mad 67. 36. Palla Sanyasi v. Kayitha Guruvulu, AIR 1950 Mad 271 [LNIND 1949 MAD 161]. 37. Bhoobun Mohini v. Hurrish Chunder, (1879) ILR 4 Cal 23; see also Sham Shivendar v. Janki Koer, (1909) ILR 36 Cal 311. 38. Thakur Raghunath Ji Maharaj v. Ramesh Chandra, AIR 2001 SC 2340 [LNIND 2001 SC 1254]. 39. Prafalla Kumar Biswal v. Sari Bewa, AIR 1990 NOC 13 (Ori). 40. Ankamma v. Narsaya, AIR 1947 Mad 127 [LNIND 1946 MAD 86]. 41. Collector of Ratnagiri v. Vyankatrau, (1872) 8 Bom HC (AC) 1; Hussain Khan v. Nateri, (1876) Mad HC 356. 42. Jagal Singh v. Dungar Singh, AIR 1951 All 599 [LNIND 1951 ALL 17]; Purnia v. Manindra Nath, AIR 1968 Assam and Nag 50. 43. AIR 1962 Ori 130. 44.

AIR 2010 P&H 55.

45. Faridunissa v. Muhhtar Ahmad, AIR 1925 PC 204; Tarn Kumari v. Chandra Mauleshwar, AIR 1931 PC 303. 46. Sunitabala Debi v. Dhara Sundari, AIR 1949 PC 24.

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(IN) Poonam Pradhan Saxena : Property Law 47. Mahomed Baksh v. Hosseini Bibi, (1888) ILR 15 Cal 684; Kali Baksh v. Ram Gopal, (1914) ILR 36 All 81; Mariam Bibi v. Ibrahim, (1918) 28 Cal LJ 306. 48. Baijnath Singh v. Mussamat Biraj, AIR 1922 Pat 514. 49. Ammiraju v. Seshamma, (1918) ILR 41 Mad 33. 50. Lakshmi Boss v. Roop Laul, (1907) ILR 30 Mad 169 (FB); Abdul Mallick v. Md. Yousuf, AIR 1961 Mad 190. 51. Raghunath v. Varjivandas, (1906) ILR 30 Bom 578; and Walid Khan v. Ewas Ali Khan, (1891) ILR 18 Cal 545. 52. Mannu Singh v. Umadat Pande, (1890) ILR 12 All 523 (an old man to a guru); Bai Manigavri v. Narondas Callandas, (1891) ILR 15 Bom 549 (gift to a family priest to provide for funeral expenses); Philip Lukka v. Franciscan Association, Vazhappally, AIR 1987 Ker 204 [LNIND 1986 KER 5], 208. 53. Raja Papamma v. Sitaramayya, (1895) 5 Mad LJ 233; Kaminee Dasee v. Krishna Chandra, (1912) 39 Cal 933. 54. Rani Chander v. Sital Prasad, AIR 1948 Pat 130. 55. Ganga Baksh v. Jagat Bahadur, (1895) ILR 23 Cal 15; Kali Baksh Singh v. Ram Copal Singh, (1914) ILR 36 All 81; Kaminee Dasee v. Krishna Chandra, (1912) ILR 39 Cal 933; Phut Chand v. Lakkhu, (1903) ILR 25 All 358; Fairdunnisa v. Mukhtar Ahmad, AIR 1925 PC 204; Barktunnissa v. Debt Baksh, AIR 1927 PC 84. 56. Shambati Koeri v. Jago Bibi, (1902) ILR 29 Cal 749; Sajjad Hussain v. Wazir Ali Khan, (1912) ILR 34 All 455. 57. T. Simthri v. M. Vusudevan, (1881) ILR 3 Mad 215; Mahomed Buksh v. Hosseini Bibi, (1888) ILR 15 Cal 684; Marium Bibi v. Sakina, (1892) ILR 14 All 8; Deo Kuar v. Man Kuar, (1895) ILR 17 All 1; Khas Mehal v. Administrator General of Bengal, (1900) 5 Cal WN 505; Kali Baksh v. Ram Gopal, (1914) 36 All 81; Kamawati v. Digbijai Singh, AIR 1922 PC 14; Ruhulla v. Hassanali, AIR 1928 PC 303. 58. Raja Ram v. Khandu, (1912) 14 Bom LR 340 [LNIND 1911 BOM 175]. 59. Philip Lukka v. Franciscan Association, Vazhappally, AIR 1987 Ker 204 [LNIND 1986 KER 5]. 60. Baijnath Singh v. Mussammat Biraj, AIR 1922 Pat 514. 61. Ghumma v. Ramachandra, AIR 1925 All 437; see also for a contrary opinion Aziz-un-nissa v. Suraj Husain, AIR 1934 All 507. 62. Kalyanasundaram v. Karuppa, AIR 1927 PC 42; Venkatasubba Shrinwas v. Subba Rama, AIR 1928 PC 86. 63. Shakuntla Devi v. Amar Devi, AIR 1985 HP 109 [LNIND 1985 HP 8]. 64. See The Transfer of Property Act 1882, s. 126. 65. Behari Lal Ghose v. Sindhubala Dasi, (1918) 45 Cal 434, 438; Luky Moss v. Mah Nyein May, AIR 1933 Rang 418. 66. Ragendra v. C Gounder, AIR 2007 (NOC) 1325 (Mad). 67. Ma Shin v. Maung Hman, AIR 1924 Rang 651; MPLMPChetty v. Ma Ngwe Sin, AIR 1924 Rang 200. 68. Mool Raj v. Jamna Devi, AIR 1995 HP 117 [LNIND 1994 HP 72]. 69. Such gifts are controlled by The Transfer of Property Act 1882 s. 10;Jagdeo Sharma v. Nandan Mahto, AIR 1982 Pat 32. 70. Nabob Amiruddaula v. Nateri, (1876) 6 Mad HC 356 (Mahommedan law); Anantha v. Nagamuthu, (1882) ILR 4 Mad 200; Alt Hasan v. Dhirja, (1882) ILR 4 All 518; Bhairo v. Parmeshri, (1885) ILR 7 All 516; Moulvi Muhammad v. Fatima Bibi, (1886) ILR 8 All 39; Muthukamara v. Anthony, (1915) ILR 38 Mad 867; Narayanan v. Kannan, (1884) ILR 7 Mad 315 (condition restraining partition). 71. Tila Bewa v. Mana Bewa, AIR 1962 Ori 130. 72. Rukminibai v. Laxmibai, 56 IC 36, (1920) ILR 44 Bom 304. 73. Ramswarup v. Bela, (1884) ILR 6 All 313, PC; Ghumma v. Ramcharan, AIR 1925 All 437. 74. Moot Raj v. jamnn Dem, AIR 1995 HP 117 [LNIND 1994 HP 72]. 75. S.R. Radhakrishnan v. Neelamagam, AIR 2003 SC 4152 [LNIND 2003 SC 607]. 76. See the s. 122; Fazulbhay v. Credit Bank of India, (1915) ILR 39 Bom 331. 77. Shyam Behari Mal v. Maha Prasad, AIR 1930 All 180; Anrudh Kumar v. Lachmi Chand, AIR 1928 All 500; Brij Raj v. Ram Dayal, AIR 1932 Oudh 40. But in a case in which a life interest in part of the property is reserved to the donor, the donee is a universal donee; see Shahzad Singh v. Madan Gopal, AIR 1933 All 146; but see Thiruvenkidaswami v. Palani Ammal, AIR 1961 Mad 291. So also, where the part retained by a donor is insignificant and is for his own maintenance, the donee is nevertheless a universal donee. Bapurao v. Balakidas, AIR 1944 Nag 225. 78. Dayanandan v. Veenugopal, AIR 1964 Mad 78 [LNIND 1963 MAD 151].

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(IN) Poonam Pradhan Saxena : Property Law 79. Shanmugan v. Syndicate Bank Ltd., AIR 1999 Mad 74 [LNIND 1998 MAD 1051]. 80. Narbadabai v. Mahadeo, (1880) ILR 5 Bom 99. 81. Sudhamoyee v. Bhujendra Nath, AIR 1937 Cal 226. 82. Ram Sarup v. Shiv Dayal, AIR 1940 Lah 285. 83. Madhukas Sagun Karpe v. Institute of Public Assistance, AIR 1998 Bom 201 [LNIND 1998 BOM 35]. 84. Ragho Govind v. Balwant, (1833) 7 Bom 101. 85. Commr of Income tax, Ernakulam v. Abdul Karim, AIR 1991 SC 1847 [LNIND 1991 SC 289]: (1991) 3 SCC 520 [LNIND 1991 SC 289]. 86. Musa Miya v. Kadar Bux, AIR 1928 PC 108; Kulusm Bibi v. Shiam Sunder Lal, (1936) All LJ 1027. 87. Kunheema Umma v. P. Ayissi Umina, AIR 1981 Ker 176; Abdul Sattar v. Fifth Additional District Judge, (1978) All LJ 543; Ibadat Ali v. Baldia Co-operative Bank, (1968) 2 All LT 124, delivery of possession, either actual or constructive, is necessary to validate a gift; see Mohbool Alam Khan v. Khodaija, AIR 1969 SC 1194; Qamaruddin v. Hasanjan, AIR 1935 Lah 795; Muhammad Yusuf v. Muhammad Yusuf, AIR 1958 Mad 527 [LNIND 1968 MAD 34]. 88. See Jaitunbi Fatrubhai v. Fatrubhai Kasambhai, AIR 1948 Bom 114, wherein it was held that assignment of land by a Mahommedan bridegroom in favour of his bride at the time of the marriage in lieu of Meher does not require writing. 89. Inspector General of Registration v. Tayyaba Begum, AIR 1962 AP 109 (FB); Sunkesula Chinna v. Raja Subbamma, (1954) 2 Mad LJ (Andh) 113. 90. A.M.K. Mariam Bibi v. M.A. Abdul Rahim, AIR 2000 NOC 21 (Mad). 91. Shaik Pathimma Bi v. Sri Venkata Chalapathy Finance Corpn., AIR 1978 AP 401 [LNIND 1977 AP 352]. 92. Ratan Lal Bora v. Mohd Nabiud Din, AIR 1984 AP 344 [LNIND 1984 AP 103]. 93. Ghulam Abbas v. Razia Begum, (1950) All LJ 30; Mahammad Usman v. Amir Mian, (1946) 26 Pat 561; Gpaldas v. Sakina Bibi, (1936) 16 Lah 197. 94. Chota Uddandu Saheb v. Masthan Bi, AIR 1975 Pat 27; Maimuna Babi v. Raso Mian, AIR 1991 Pat 203. 95. Wazir Jan v. Saiyyid Altaf Ali, (1887) ILR 9 All 357; Fazal Ahmed v. Rahim Bibi, (1918) ILR 40 All 238. 96. Under Shia law the gift in favour of the heirs to the extent of one third of the property does not require the consent for the other co heirs, see Khursheed Hussain v. Fayaz Hussain, (1914) ILR 36 All 289; Musi Imran v. Ibn Hasan, (1933) All LJ 53; Sajjad Hussain v. Mahomad Saiyad Hasan, (1934) All LJ 71. 97. Bibi Maniran v. Mohammad Ishague, AIR 1963 Pat 229; Moti Das v. S.P.Sahi, AIR 1959 SC 942 [LNIND 1959 SC 51]. See also Rawther M v. M. Charavil, AIR 1972 Ker 27, wherein a single Judge of the Kerala High Court held that s 129 is ultra vires Art. 14 of the Constitution, if applicable to all Mohammedan gifts and should therefore be construed as limited to Mohammedan gifts of a charitable or a religious nature.

End of Document

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Poonam Pradhan Saxena : Property Law > Poonam Pradhan Saxena : Property Law > CHAPTER 9

CHAPTER 9 Of Transfers of Actionable Claims ACTIONABLE CLAIM

Section 3. Interpretation Clause

“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 recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

GENERAL PRINCIPLE Actionable claim are claims recognised by the courts of law for providing relief with reference to unsecured debts or beneficial interests in movable property. According to s 3, an actionable claim means a claim to: (i) any debt,1 other than a debt secured by: (a) mortgage of immovable property, or (b) by hypothecation or pledge of movable property, or; (ii) to any beneficial interest in movable property2 not in the possession either actual or constructive of the claimant, which the civil court3 recognises as affording grounds for relief whether such debt or beneficial interest be existent, accruing, conditional or contingent. Debt A debt is a liquidated or certain sum of money which the debtor is under an obligation to pay.4 It can be existing or present or a future debt.5 Where a debt has already become due it is called an existing debt, but if it is due at present but payable in future it is called accruing debt.

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Where the claim of a certain sum of money exists, but is payable subject to certain conditions, it is called a conditional debt. Similarly, contingent debts are payable on the happening of a contingency. The debt may be a secured debt or an unsecured debt. Where a security is given for the repayment of a debt it is called a secured debt, e.g., mortgage of immovable property or hypothecation of movables to secure repayment of loan are instances of secure debts, while a debt taken on the strength of a promise to pay is an unsecured debt. Conditional or contingent debts cannot be attached, but are actionable claims. Instances of Actionable Claim Actionable claims include: (i) a maintenance allowance payable at a future date;6 (ii) a right to the proceeds of a business;7 (iii)a partner’s right to sue for an account of a dissolved partnership;8 (iv)annuities payable under a deed of wakf;9 (v) the price payable by a purchaser of immovable property before the execution of the conveyance;10 (vi)the right to recover money left in the hands of a vendee;11 (vii)

an amount due under a policy of insurance;12

(viii) an amount due under a letter of credit;13 (ix)the right to recover the insurance money on the death of the assured person, or on the expiry of the endowment period;14 (x) a right to recover back the purchase money on the sale being set aside;15 (xi)arrears of rent;16 (xii)

future rents;17

(xiii) a decretal debt,18 or (xiv) interest of the purchaser of the lottery in the prize money.19 The following are not actionable claims: (i) a judgment debt or decree;20 (ii) a claim to compensation for a canal constructed by the government on a part of the mining site before transfer of the mining lease;21 and (iii)a claim to mesne profits,22 as they are unliquidated damages.23 TRANSFER OF ACTIONABLE CLAIM

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Section 130. Transfer of actionable claim.— (1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not: Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings and without making him a party thereto. Exception.— Nothing in this applies to the transfer of a marine or fire policy of insurance or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938).

Illustrations (i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed section 131, pays B. The payment is valid, and C cannot sue A for the debt. (ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to the provisions of section 132. GENERAL PRINCIPLE The transfer of an actionable claim whether with or without consideration shall be effected only: (i) by the execution of an instrument in writing; (ii) signed by the transferor or his duly authorised agent; (iii)it shall be complete and effectual upon the execution of such instrument, and thereupon; (iv)all the rights and remedies of the transferor, whether by way of damages or otherwise; Page 3 of 15

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(v) shall vest in the transferee; (vi)irrespective of whether such notice of the transfer be given or not. The section incorporates some of the features of both the English common law and of equity.24 Illustrations of Transfer of an Actionable Claim Following are valid transfers: (i) An actionable claim includes future debts, and therefore there can be a valid assignment of future book debts;25 (ii) Transfer of a right to a sum of money;26 (iii)Transfer of the right to participate in the draw to be held in a lottery; (iv)Assignment of dividends of a share in a company;27 (v) A gift of actionable claim valued at rupees three lakhs;28 (vi)The right, to demand the reconveyance of property; (vii)

The interest of a buyer of goods in a contract for forward delivery;29

(viii) The benefit of a contract giving an option to purchase land may be assignable;30 (ix)If the contract has been broken, a difference due on cross contracts in which delivery is not to be given or taken, is a debt or actionable claim and is assignable;31 (x) An engagement to pay out of a specific fund32 can be conferred in favour of a creditor by way of an irrevocable power of attorney and constitutes an equitable assignment. Following are invalid transfers: (i) A decree is not an actionable claim, and therefore, there cannot be transfer of part of the decree;33 (ii) There cannot be an assignment of the promissory note, though there can be an assignment of debt;34 (iii)Transfer of a collateral security does not transfer the loan;35 (iv)A mortgage debt is not an actionable claim, and an unregistered assignment of a mortgage debt might be treated as an assignment of the debt dissociated from the security;36 (v) The benefit of a contract giving a power of submission to arbitration is personal to the parties and cannot be assigned.37 Instrument in writing The first requirement of law is that every transfer of an actionable claim should be in writing38 and an oral transfer is invalid.39 Transfer of promissory notes, bills of exchange or policies of Page 4 of 15

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insurance,40 must be in writing to enable the assignee to sue in his own name and to give a valid discharge. An oral assignment followed by a letter recording the transfer is valid.41 Similarly, a letter authorising a person to recover a sum of money due to the writer42 or a letter to the debtor requesting him to pay to a specific person, is valid.43 However, an equitable mortgage or charge is not created by the deposit of a policy of insurance.44 An oral gift of rents in arrears and current dues cannot be made, for the latter are actionable claims.45 A dedication of an actionable claim, such as a bond, to an idol is not a transfer to which s. 130 applies and it may be made orally.46 Actionable claims may also be transferred by operation of law.47 Mode of Assignment No particular form of words is necessary to effect an assignment but the intention must be clear from the language used in the document.48 The instrument of transfer should, in general, contain words of transfer.49 The delivery of a bond to the transferee with a letter requesting the debtor to pay him;50 an endorsement on the back of a contract for the purchase of goods by the purchaser that he has sold all his rights and interest in the contract to a person named, is a valid transfer of an actionable claim.51 However, a deposit merely creating a pledge;52 or a power of attorney executed by a company authorising the bank to demand and receive the interest from its tenant53 or a declaration by a retiring partner that he has no interest, does not operate as a transfer of the actionable claim.54 A promissory note cannot be assigned, however, there can be an assignment of a debt.55 A non-negotiable promissory note may be transferred by a separate deed,56 and a direction endorsed on such a promissory note operates as an assignment.57 A document whereby the owner of a government promissory note authorises a person to recover the note or its value from the person with whom it is deposited, operates as an assignment.58 A gift of an actionable claim is valid without acceptance even under Muslim law.59 Instances of Valid Assignment An assignment creates an interest in the fund and is not revocable.60 (i) Delivery of a bond with a letter to the debtor directing him to pay;61 (ii) A letter by a dairy man to the purchasers of his milk supply, directing them to pay the price of milk supplied to his creditor;62 (iii)An agreement to advance funds for indenting stamps under which the stamps are deposited with the creditor as security, and under which it is agreed that its proceeds are to be handed over to him towards repayment;63 (iv)The money deposited by subscribers of a company with the bank to purchase chits from the company for payment to the company of the installments of the chits as and when they fall due.64

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Instances of Invalid Assignment (i) Delivery of a banker’s deposit receipt with a letter to the bank directing payment;65 (ii) A letter of authority written by a debtor of a society authorising his employer to deduct from the amount of his salary, sums due to the society;66 (iii)A mere authority or power of attorney to recover debts is not an assignment.67 A right to rent to fall due in future,68 or the creation of a charge, may be assigned.69 An assignment by way of charge on future property is a valid assignment in equity, which attaches to the property when it comes into existence70 but an assignment by way of mortgage or charge of a book debt of a company must comply with the provisions of the Companies Act, 1956.71 In a transfer of actionable claim ‘all rights and remedies’ of the transferor vest in the transferee vis--vis the debtor, and the transferor cannot, after assignment, even by way of security, sue the debtor, for that remedy is vested by the assignment in the transferee.72 The transaction may be described by the parties as a charge or lien, and yet it may be in substance an assignment, for when a creditor purports to create a lien or charge on a debt due to him in favour of another person, the words have no meaning except as giving the latter a right to recover the debt from the debtor.73 If the transferee and the debtor collude in transferring a debt, the transferor can file a suit for redemption and can get the debt reassigned to him.74 Proviso Every dealing with the debt or other actionable claim by the debtor, or other person, from or against whom the transferor would, but for such instrument of transfer of actionable claim, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer. A debtor, the debt due from whom has been assigned over to a third person, cannot, after the notice of the assignment of the debt, pay a portion of the debt, even under the order of the court in a case to which the assignee was not a party, so as to protect him from paying it over again to the assignee.75 Thus, where the creditors hypothecated a debt due to them by a railway company to A and gave him the power of attorney to collect the debt, pursuant to which A gave notice of the assignment to the company but the company refused to recognise him and paid the creditors, they were asked to make a second payment to A.76 Where the beneficiaries of a trust effect two assignments of the trust property to two different creditors and the first assignee gives notice of assignment to the trustees/beneficiaries he will have priority in receiving the trust income over the other assignee.77 The proviso benefits the debtor, and has nothing to do with the title of the transferee or with priority of claims.78 Right to Suit

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Upon a transfer of an actionable claim, the transferee acquires the rights of the transferor and may, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings, and without making him a party thereto. The assignee is the only person entitled to recover the debt after assignment.79 Where goods entrusted to the transport carrier by the consignor, an unregistered firm, are, on delivery by the carrier to the consignor, found damaged and the insurance company with which the goods are insured, makes payment of the damages to the consignor, the assignment by the consignor of its right to indemnification from the carrier to the insurance company is valid.80 Marine or Fire Policies Nothing in this applies to the transfer of a marine or fire policy of insurance or affects the provisions of s section 38 of the Insurance Act 1938 (4 of 1938).81 However, a fixed deposit is not a deposit of specie, but is an actionable claim, and a transfer of it can only be made by an instrument in writing under this section.82

Section 130A. Transfer of policy of marine insurance.— Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec. 92 (w.e.f. 1-8-1963).

NOTICE

Section 131. Notice to be in writing, signed.— Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.

GENERAL PRINCIPLE An assignment is not valid against the debtor until the debtor has notice of the assignment,83 and till the time the debtor receives notice of the assignment in accordance with law, his

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dealings with the original creditor will be protected.84 A debtor can waive the requirement of notice.85 If the assignment is by a registered document, notice is not necessary.86 The notice must be an express notice in writing87 and should be given by the transferor. If it is given by the transferee, it must be shown that the transferor had refused to sign it.88 A notice without the address of the transferee is invalid.89 Notice given within one year is valid.90 A notice may be conditional, and can be validated by subsequent notices.91 LIABILITY OF TRANSFEREE OF ACTIONABLE CLAIM

Section 132 Liability of transferee of actionable claim.— The transferee of an actionable claim shall take it subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer.

Illustrations (i) A transfers to C a debt due to him by B, A being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer. (ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A. GENERAL PRINCIPLE After the transfer of an actionable claim, the transferee takes the transfer with all the liabilities and equities of the transferor as they stood at the date of the transfer. The principle of the section applies to court sales.92 WARRANTY OF SOLVENCY OF DEBTOR

Section 133. Warranty of solvency of debtor.— Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, Page 8 of 15

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and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

MORTGAGED DEBT

Section 134. Mortgaged debt.— Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.

GENERAL PRINCIPLE A debt may be assigned by way of sale or a mortgage.93 This section provides that when it is transferred the debt, if received by the transferor or recovered by the transferee, should be applied in the following manner: (i) first, in payment of the costs of such recovery; (ii) secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and (iii)lastly, the residue, if any, belongs to the transferor or other person entitled to receive the same. ASSIGNMENT OF RIGHTS UNDER POLICY OF INSURANCE AGAINST FIRE

Section 135. Assignment of rights under policy of insurance against fire.— Every assignee by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself. Page 9 of 15

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GENERAL PRINCIPLE An express exemption is provided under law to assignments of marine and fire policies of insurance from its application. Where a consignment entrusted to a railway company for carriage is damaged by fire and the consignee obtains damages from the insurance company after writing a letter of subrogation and files a suit for damages against the railway company, the suit is maintainable and the letter of subrogation will not divest the consignee of its cause of action against the railway administration for loss and damages.94 Similarly, where partnership assets are insured and the firm is subsequently dissolved, one partner getting all its assets cannot sue for recovery of damages unless the policy is assigned in his favour by the insurer, the firm, by formal endorsement.95

Section 135A. Assignment of rights under policy of marine insurance.— [Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec. 92 (w.e.f. 1-8-1996).]

INCAPACITY OF OFFICERS CONNECTED WITH COURTS OF JUSTICE

Section 136. Incapacity of officers connected with Courts of Justice.— No judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.

GENERAL PRINCIPLE This section provides a statutory disqualification on certain officers, associated or connected with courts, to be a transferee of actionable claims. The predominant reason behind this rule is to prevent the probable misuse of the official position and information that these officials may have with respect to these claims. The officials referred to in the section are judges, legal practitioners or any officer connected Page 10 of 15

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with any court of justice, and the restriction is to buy; or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim. A mere sale of arrears of rent by a pleader is not trafficking, and is valid.1 Similarly, a purchase by a pleader of a policy of life insurance at a court sale is valid,2 but an assignment by a Mohammedan widow to a pleader of her claim for unpaid dower is invalid.3 The prohibition applies whether a suit has been filed on an actionable claim or not.4 This prohibition is not restricted to actionable claims in respect of which the pleader has a professional duty to perform. Thus, when a pleader purchased a house under a kabala, which assigned to him the rents which were in arrears, this rule applies and he cannot enforce his claim.5 Where a person prohibited from dealing in an actionable claim under s. 136, obtains an assignment of a bond through a bona fide mistake and institutes a suit on the basis of the same, the assignor can be substituted in the place of the assignee as plaintiff and allowed to continue the suit.6 SAVING OF NEGOTIABLE INSTRUMENTS, ETC

Section 137. Saving of negotiable instruments, etc.— Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods. Explanation.— The expression “mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.

GENERAL PRINCIPLE This section expressly saves the application of the rules to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable. Shares are not actionable claims and are excluded from the operation of this rule.7 Stocks, shares or debentures may be assigned by way of sale, or by way of security such as a mortgage or pledge. In a mortgage, there can be given a right to sell the shares privately for the realisation of the debt.8 The expression, ‘mercantile document of title to goods’ includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.9 Page 11 of 15

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The bar imposed by s. 130, that transfer of an actionable claim can be effected only by an instrument in writing, does not effect negotiable instruments by virtue of this section.10 Thus, the rule gives an extended privilege to mercantile documents.11 The contract indicated by a railway receipt can be transferred without writing with an endorsement in blank, coupled with the delivery of the receipt.12 Thus, a railway receipt13 or a delivery order14 entitles the endorsee to delivery as a document of title of goods. A pledge of a railway receipt has the effect of a pledge of the relative goods.15 The transfer of negotiable instruments may be effected by an instrument in writing under s. 130 and the transfer will then be subject to s. 132.16 If a promissory note is executed in favour of a joint Hindu family, the whole family can sue to recover the debt and if a partition is effected, each member may sue on the debt to recover his share.17 The beneficial owner cannot sue on the note alleging that the payee is his benamidar, though he may sue for the debt evidenced by the note.18 A promissory note can be transferred without an endorsement, by operation of law19 but in a case where a negotiable instrument is allotted to a party by a partition award and decree, there is no transfer by operation of law.20

1.

Venkata Guruwdha v. Kesava Ramiah, AIR 1926 Mad 417.

2.

The right to claim the benefit of a contract, or the right on certain conditions to call for delivery of goods mentioned in the contract constitutes a beneficial interest in movable property, conditional or contingent, and as such, assignable, Jaffer Meher All v. BudgeBudge Jute Mills Co., (1907) 34 Cal 289.

3.

A suit by a co-sharer to recover his share of profits from a lambardar in the province of Agra and Oudh is cognisable by a revenue court and not by a civil court. Such a claim by a co-sharer is therefore, not within the definition of actionable claim, Lallu Singh v. Chandra Sen, AIR 1934 All 155.

4.

Sabju Sahib v. Noordin, (1899) 22 Mad 139.

5.

See Subramanian v. Arunachalam, (1902) ILR 25 Mad 603; Venkata Guruwdha v. Kesava Ramiah, AIR 1926 Mad 417.

6.

Haridas v. Baroda Kishore, (1900) ILR 27 Cal 38; Asad Ali v. Haidar Ali, (1911) ILR 38 Cal 13; Palikandy v. Krishnan, (1917) ILR 40 Mad 302.

7.

Alkash Ali v. Nath Bank, AIR 1951 Assam 56.

8.

Mulchand v. Shamdas, AIR 1941 Sau 73; Bharat Prasad v. Paras Singh, AIR 1964 All 15 [LNIND 1963 ALL 84].

9.

Bibi Alimunissa v. Abdul Aziz, 165 IC 298.

10. Ahmaduddin v. Majlis, (1881) ILR 3 All 12. 11. Agrenath v. Ram Ratan, AIR 1938 All 544; Hanuman Estate Pvt. Ltd. v. Dhanuka Industries Pvt. Ltd., (1975) 79 Cal WN 83 ; rent in arrears can be transferred by written instrument Rameshwar v. Ruknath AIR 1923 Pat 165. 12. Varjivandas v. Maganlal, AIR 1937 Bom 382. 13. Joseph Pyke & Sons (Liverpool) Ltd. v. Kedarnath, AIR 1959 Cal 328 [LNIND 1958 CAL 146]. 14. Chinnapareddi v. Venkataramanappa, AIR 1942 Mad 209 [LNIND 1941 MAD 181]. 15. Ambika Prasad Singh v. Ram Charitar Singh, AIR 1951 Pat 419; Ahmad Hossain v. Bibi Naeman, AIR 1963 Pat 30. 16. Madhabilata Devi v. Butto Kristo Raj, AIR 1944 Pat 129; Daya Debt v. Chapala Debi, AIR 1960 Cal 378 [LNIND 1959 CAL 65]; Sheogobind Singh v. Gouri Prasad, AIR 1925 Pat 310; Rameshwar Narain Singh v. Riknath Koeri, AIR 1923 Pat 165; Babu Bhai v. Bhagwandas, AIR 1967 MP 143.

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(IN) Poonam Pradhan Saxena : Property Law 17. Poothekka Nachiar v. Annamalai Chetty, AIR 1926 Mad 1173 [LNIND 1926 MAD 174]; Chidambaram Filial v. Doraisami Chetti, 31 IC 473. 18. Somashekanao v. K.S.Mishra, AIR 1944 Nag 185; Varjivandas v. Maganlal, AIR 1937 Bom 382. 19. Mohideen Sahib v. Ameena Bi, AIR 2007 Mad 13 [LNIND 2006 MAD 1272]. 20. Afzal v. Ramkumar Bhudra, (1886) ILR 12 Cal 610; Dagdu v. Vanji, (1900) ILR 24 Bom 502; Govindarajulu v. Ranga Rao, AIR 1921 Mad 113 [LNIND 1920 MAD 118]. 21. State of M.P. v. Balimansha Byramji, (1976) MP LJ 535. 22. Jai Narayan v. Kishun Dutta, AIR 1924 Pat 551. 23. Seetamma v. Venkataramanayya, (1915) ILR 38 Mad 308; Durga Chunder v. Kailas Chunder, (1897) 2 Cal WN 43; Shyam Chand Koondoo v. Land Mortgage Bank of India, (1882) 9 Cal 695; Chendrasekharalingam v. Naghabhushanam, AIR 1927 Mad 817. 24. Sadasook Ramprotap v. Hoare Miller & Co., AIR 1923 Cal 719; Ranjit Roy v. D.A.David, AIR 1935 Cal 218. 25. Bharat Nidhi Ltd. v. Takhatmal, AIR 1969 SC 313 [LNIND 1968 SC 416]. 26. Laxmidhar Behera v. Bansidhar Khatei, AIR 1989 Ori 182 [LNIND 1988 ORI 115]; see Shivnarayan Laxminarayan v. State of Maharashtra, AIR 1980 SC 439; State of Madhya Pradesh v. Ranojirao Shinde, AIR 1968 SC 1053 [LNIND 1968 SC 78]. 27. Daya Bai v. Ambalal, AIR 1981 SC 156. 28. Controller of Estate Duty v. Godavari Bai, AIR 1986 SC 631 [LNIND 1986 SC 41]. 29. Jaffer Meher Ali v. Budge-Budge Jute Mills Co., (1906) ILR 33 Cal 702; Hunsraj v. Nathoo, (1907) 9 Bom LR 838. 30. Andalammal v. Alamelu Ammal, AIR 1962 Mad 378 [LNIND 1961 MAD 129]. 31. Nagappa v. Badridas, AIR 1930 Bom 409. 32. Loknarayan Sethia v. State Bank of Jaipur, AIR 1969 SC 73 [LNIND 1968 SC 130]. 33. Narandas v. Tejmal, (1932) ILR 58 Bom 226; Kusum Kamini v. Sailes Chandra, (1934) 38 Cal WN 1053. 34. Mulji Mehta & Sons v. C. Mohan Krishna, AIR 1997 AP 153 [LNIND 1996 AP 643]. 35. Chandra Shekar Gowda v. Canara Bank, AIR 1983 Kant 233 [LNIND 1982 KANT 261]. 36. Imperial Bank of India v. Bengal National Bank, AIR 1931 PC 245. 37. Bhabhootmal v. Moolchand, AIR 1943 Nag 266. 38. Velayuthan v. Pillaiyar Chetti, (1911) 9 Mad LT 102; Sidambaram Nadar v. D.R. Maganlal Brothers, AIR 1929 Rang 318; Mulraj Khatau v. Vishwanath, (1913) ILR 37 Bom 198; see also Bharat Nidhi Ltd. v. Takhatmal, AIR 1969 SC 313 [LNIND 1968 SC 416], wherein the Supreme Court held that that a document can amount to an equitable assignment independently of s. 130. 39. Raman Chetty v. Nagarathana Naicker, 15 IC 380, (1912) 11 Mad LT 246. 40. Corporation Bank, Bangalore v. Lalitha H. Hola, AIR 1994 Kant 133 [LNIND 1993 KANT 133]. 41. Jivraj v. Lalchand & Co., AIR 1932 Bom 446; see also Muthuveeran Chetty v. Govindan Chetty, AIR 1961 Mad 518 [LNIND 1961 MAD 30]. 42. Nandubai v. Gau, (1903) ILR 27 Bom 150. 43. Konjeti Veemswamy v. Varada, (1913) 13 Mad LJ 77. 44. Mulraj Khatau v. Vishwanath, 40 IA 24; Official Assignee v. Thompson, 30 IC 602. 45. Rameshwar Narain Singh v. Riknath Koeri, AIR 1923 Pat 165. 46. Bhopatrao v. Ramchandra, AIR 1926 Nag 469. 47. Mohendra Nath v. Kali Proshad, (1903) ILR 30 Cal 265; Jaffer Meher Ali v. Budge Budge Jute Mills Co. Ltd., (1907) ILR 34 Cal 289; Thawendasjethanand v. Seth Vishindas, AIR 1925 Sau 72; Hari Mahaton v. Jugulmahaton, AIR 1954 Pat 32. 48. Simon Thomas v. State Bank of Travancore, (1976) Ker LT 554 (FB); Rama Iyer v. Venkatachallam Patter, (1907) ILR 30 Mad 75; Nanak Chand Kishori Lal v. Ram Sarup Gujar Mal, AIR 1924 Lah 684; Brahmayya & Co. v. Thangavelu, AIR 1956 Mad 570; Mohanlal v. Loan Co. of Assam, AIR 1960 Assam 191. 49. Doraiswami Mudaliar v. Doraiswami Aiyangar, AIR 1925 Mad 753 [LNIND 1924 MAD 354]. 50. Konjeti Veeraswamy v. Varada, 16 IC 708, (1913) 13 Mad LJ 77. 51. Hunsraj v. Nathoo, (1907) 9 Bom LR 838. 52. Official Assignee v. Hukumchand, AIR 1941 Mad 147 [LNIND 1940 MAD 96].

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(IN) Poonam Pradhan Saxena : Property Law 53. Corporation Bank, Bangalore v. Lalitha HHOLA, AIR 1994 Kant 133 [LNIND 1993 KANT 133]; see Seth Loonkam v. Ivan E John, AIR 1969 SC 73 [LNIND 1968 SC 130]; and Bharat Nidhi Ltd. v. Takhatmal, AIR 1969 SC 313 [LNIND 1968 SC 416], where power of attorney contained ingredients of equitable assignment. 54. Dharm Chand v. Mauji Sabu, (1912) 16 Cal LJ 436. 55. Mulji Mehta v. C. Mohan Krishna, AIR 1997 Pat 153. 56. Sugappa v. Govindappa, (1902) 12 Mad LJ 351. 57. Rama Iyer v. Venhatachellam Patter, (1907) ILR 30 Mad 75. 58. Kattick Ramunni v. Udayamangalath, 14 IC 279. 59. Iqbal Mahomad Khan v. Controller of Estate Duty, (1965) 1 ITJ 751. 60. Bharat Nidhi Ltd. v. Takhatmal, AIR 1969 SC 313 [LNIND 1968 SC 416]. 61. Konjeti Veeraswamy v. Varada, (1913) 13 Mad LJ 77. 62. Thakur Das v. Malik Chand, AIR 1933 Lah 102; Jat Mal v. Hakam Mal Tani, AIR 1930 Lah 820. 63. Venkata Rao v. China Venkatapathy, AIR 1965 Andh Pra 410. 64. T.N. Subsidiary Co. v. T.N. & Q Bank, AIR 1940 Mad 258 [LNIND 1939 MAD 101]. 65. Sethna v. Hemingway, (1914) ILR 38 Bom 618. 66. B.N.R. Employees Urban Bank v. Seager, 201 IC 342. 67. Takhatmal v. Bharat Nidhi Ltd., AIR 1963 MP 132 [LNIND 1962 MP 117]; Bank of the East (1927) Ltd. v. State of Assam, AIR 1958 Assam 22; Gauhati Bank v. Rajendra Nath, AIR 1959 Assam 167. 68. Chidambaram Pillai v. Doraisami Chetty, 31 IC 473; Poothekka Nachiar v. Annamalai Chetty, AIR 1926 Mad 1173 [LNIND 1926 MAD 174]. 69. Mulraj Khatau v. Vishwanath, (1913) ILR 37 Bom 198. 70. Lagdir Nanji v. Surendra Mohun, AIR 1938 Cal 606. 71. Ranjit Roy v. D.A. David, AIR 1935 Oudh 218. 72. Santuram v. Trust of India Assurance Co., AIR 1945 Bom 11; see also Ranjit Roy v. D.A. David, AIR 1935 Cal 218. 73. Ardesir Bejonji v. Syed Sirdar Ali Khan, (1909) ILR 33 Bom 610; Ramasami Pillai v. Muthu Chetti, (1911) ILR 34 Mad 53. 74. Santuram v. Trust of India Assurance Co., AIR 1945 Bom 11. 75. Burma Shell Co. v. Official Receiver, AIR 1943 Mad 244 [LNIND 1942 MAD 294]. 76. Gopalakrishna v. Gopalakrishna, (1910) ILR 33 Mad 123; see also Tata Iron & Steel Co. Ltd. v. Baidyanath, AIR 1924 Pat 118. 77. Dahyabhai Chimanlal v. Ambalal Hiralal, AIR 1981 SC 1556. 78. Subramania v. Subba, (1935) 59 Mad 141. 79. Muthukrishnier v. Veeraraghava Iyer, (1915) ILR 38 Mad 297; Arunachellam Chettiar v. Madaswami, (1920) 27 Mad LT 269 ; Re Namyanan Chettiar, AIR 1958 Mad 34 [LNIND 1956 MAD 219]. 80. United India Fire & General Insurance Co. Ltd. v. Transport Carriers, AIR 1986 Pat 32. 81. Debentures, negotiable instruments and mercantile documents of title are excepted from this section by s. 137 of the TP Act. The assignment of dividend is subject to the Companies Act 1956 s 53, see Daya Bai v. Ambalal, AIR 1981 SC 156. 82. Mayavi Dalip Rajeshwari v. Mohan Bikram, AIR 1945 All 409. 83. Tata Iron & Steel Co. Ltd. v. Baidyanath, AIR 1924 Pat 118. 84. Gopalakrishna v. Gopalakrishna, (1910) ILR 33 Mad 123; Re Aviet Stephens AIR 1938 Rang 1; Balthazar v. Official Assignee, AIR 1938 Rang 426. 85. Sadasook Ramprotap v. Hoar Miller & Co., AIR 1923 Cal 719. 86. Prem Chand v. Onkar Dutt, AIR 1972 All 415. 87. Bank of the East 1927 Ltd. v. State of Assam, AIR 1958 Assam 22. 88. Kanraj v. Vijai Singh, AIR 1951 Raj 74 [LNIND 1950 RAJ 9]. 89. Hunsraj v. Nathoo, (1907) 9 Bom LR 838; Basant Singh v. Burma Railways Co. Ltd., 30 IC 278.

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(IN) Poonam Pradhan Saxena : Property Law 90. Alapati Venkata v. Vemuri Manikyaraw, AIR 1948 Mad 171 [LNIND 1947 MAD 120]. 91. Gopalakrishna v. Gopalakrishna, (1910) ILR 33 Mad 123. 92. Ram Bhaj Datta v. Ram Dhas, AIR 1923 Lah 261; Ramchandra v. Shankar, AIR 1944 Nag 98. 93. Gopalakrishna v. Gopalakrishna, (1910) ILR 33 Mad 123; Ramasami Filial v. Muthu Chetti, (1911) ILR 34 Mad 53; Muthukrishnier v. Veeraraghava, (1915) ILR 38 Mad 297 (FB). 94. Union of India v. Sri Sarada Mills Ltd., (1972) 2 SCC 877 [LNIND 1972 SC 469]. 95. Panmal v. Oriental Fire & General Insurance Co., AIR 1979 Gau 70. 1.

Hirday Narain Singh v. Jugal Prasad Singh, AIR 1927 Pat 2.

2.

National Insurance Co. v. Haridas Basu, AIR 1927 Cal 691.

3.

Amir Hasan Khan v. Muhammad Nazir Hussain, AIR 1932 All 345.

4.

Muni Reddi v. Venkata Row, (1914) ILR 37 Mad 238.

5.

Sheogobind Singh v. Gouri Prasad, AIR 1925 Pat 310; Hiralal Singha v. Tripura Charan Ray, (1913) ILR 40 Cal 650.

6.

Bal Niketan Nursing School v. Kesari Prasad, AIR 1987 SC 1970 [LNIND 1987 SC 492]; Sitla Bux Singh v. Mahabir Prasad, AIR 1936 Oudh 275.

7.

Arjun Prasad v. Central Bank of India, AIR 1956 Pat 32; Kunhuni v. Krishna Pattar, AIR 1943 Mad 74.

8.

Shatzfldi Begum v. Girdharilal, AIR 1976 AP 273 [LNIND 1975 AP 198].

9.

For the effects of this section, see Imperial Bank of India v. Bengal National Bank, AIR 1931 Cal 223; s. 137 is to be read as part of the Contract Act, 1872, see Ramdas v. S.Amerchand & Co., (1916) ILR 40 Bom 630.

10. Gadadhar v. Damo Behera, AIR 1966 Ori 230 [LNIND 1966 ORI 16]. 11. Moddi R. Kottiah v. M. Seshamma, AIR 1971 Andh Pra 315; Venkatarama Ayyar v. Krishnaswami Chettiar, AIR 1933 Mad 133 [LNIND 1932 MAD 68]; Ghanashyamdas v. Sahu, AIR 1937 Pat 100; see Srinivasulu v. Kondappa, AIR 1960 AP 166 [LNIND 1959 AP 99]; Gadadhar v. Damo Behera, AIR 1966 Ori 230 [LNIND 1966 ORI 16]. 12. Governor-General in Council v. Jaynarain, AIR 1948 Pat 30. 13. Ramdas v. S. Amerchand & Co., (1916) ILR 40 Bom 630; Secretary of State v. Rishi Ram, AIR 1928 All 145; and see Mulji Deoji v. Union of India, AIR 1957 Nag 31. 14. Anglo Indian Jute Mills Co. v. Omademall, (1911) ILR 38 Cal 127. 15. Mercantile Bank of India v. Official Assignee of Madras, AIR 1933 Mad 207 [LNIND 1932 MAD 92]. 16. Champalal v. Padam Chand, AIR 1971 MP 133 [LNIND 1967 MP 104]; Akhoy Kumar v. Haridas Bysack, 22 IC 500, (1914) 18 Cal WN 494; Muthar Sahib v. Kadir Sahib, (1905) ILR 28 Mad 544; Muhammad Kumarali v. Ranga Rao, (1901) ILR 24 Mad 654; Palawan v. Kanu, 66 IC 501; Raman Chetty v. Nagarathana Naicker, (1912) 11 Mad LT 246. 17. Gopalu Pillai v. Kothandarama Ayyar, AIR 1934 Mad 529 [LNIND 1934 MAD 10]. 18. Harkishore Barua v. Gum Mia, AIR 1931 Cal 387; Peary Pasi v. Gauri Lal, AIR 1934 Pat 382. 19. Sowcar Lodd Govinda Doss v. Lepati Muneppa Naidu, (1908) ILR 31 Mad 534; Kutalingam Pillai v. Pakiyam Fernandez, (1910) 21 Mad LJ 422. 20. Virappa v. Mahadavappa, AIR 1934 Bom 356.

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