Property Law
25/8/2023
Doctrine of election
- Election means choosing b/w two inconsistent or alternative rights. Under any
circumstance if two rights are conferred on a person in such a manner that one right is
in lieu of other then is bound to elect or choose only one of them. A person cannot
take under and against the same instrument. Thus, where sone money is gifted to Mr.
B and in lieu of it Mr B is required to transfer his house to the Mr C, then B would not
be allowed to retain his house and also take the gift. He cannot enjoy both. B will
have to choose either taking the gift in which case he must transfer his house to C or
in case if he want to retain his house in that case he must relinquish the benefit of gift.
- In the language of law B shall be put to election. The doctrine of election is based on
equitable principle under which a person may not be allowed to approve that part of
the instrument which is beneficial to him and disapprove that part which goes against
him.
- Section 35 of TPA makes following provision in respect of the rule of election:
a. Where a person professes to transfer property which he has no right to transfer and
as a part of the same transaction confer any benefit on owner of the property. Such
owner must elect either to confirm the transfer or to dissent from it. In case if the
owner confirm the transfer then he is bound to transfer the property to the
transferee. In case he dissent from it he must relinquish the benefit so conferred
and the benefit so relinquish by him revert back to the transferor or his legal
representative as if it had not been disposed of. But in the two condition the
transferor is under obligation to make good to the disappointed transferee the
amount or the value which attempted to be transfer by him.
21/ 9/2023
Section 51
Case: Bansal Pvt Ltd M/S v. B.S. Mathur AIR 1975 SC 400
- In this case the land in dispute belong to the state of Babu Bajrang Bahadur, which
was under the management of the Court of Ward in Aligarh. The collector of Aligarh
granted a lease of this land on 10th February 1921 to Mrs Bansal for a period of 10
year on a rental of Rs 15 per month for the Construction of Seema House on the land.
Before the expiry of 1st term of lease another lease was executed by collector in
favour of Bansal at a monthly rent of Rs 19. It was one of the term in both the original
and the subsequent lease that on the expiry of the term of lease, the land would be
restored to its original condition and all material and construction that may be existing
on the land would be removed. In the course of Lease Mr Roop Narayan, the
grandfather of the respondent become the owner of this land. He executed a will in
term of which one half shares in the land was bequeathed to the respondent and
remaining half share to Mr Rajendra Narayan. After the death of Mr. Roop Narayan,
Mr Rajendra Narayan sold his half share in the land to M/S Bansal by a sale deed and
consequently, the Bansal becomes the owner of the half share of the land. On the
expiry of the lease, respondent gave a notice to Bansal terminating the lease and
obtain back the possession of half share of the land. Bansal sent a reply in the year
1961 alleging that there have been an oral agreement of sale of the half shares of
Mathur Brothers, the respondent in its favor pursuant to which a sum of rupees 2500
was paid as an earnest money towards the consideration of Rs 2000. The respondent
denied the oral agreement set up by the Bansal and filed suit for partition. Afterword
Bansal Filed suit for specific performance of sale and also claimed that they have
incurred extra amount the renovation of the Cinema house on the believe that they are
the owner of that particular property.
SC Held- The appellant deliberately tried to create a equity in his favour after purchasing
half shares of Rajendra Narayan and again by spending large sum on renovation and
construction of Cinema hall and go to the extent of setting up a case of oral agreement to
purchase a land. The two agreement of lease has contained a express stipulation that on
the expiry of the period of lease, the leasee would deliver the land in the same condition
as it was before the lease and remove all the structure or material standing on it.
Case: Hans Raj v Karmi
Facts: With the help of a forged power of attorney person disposed of a property of a
person. When the owner of the property seek to evict the occupier from the property then
the occupant of the property claimed the relief under sec 51 TPA.
Court held that the property was transferred of the owner with the help of forged power of
attorney therefore it is not amount to be a transfer of the property one. Therefore here the
occupant is not entitled to obtain the benefit of sec 51 of TPA.
Sec 52
Case: Rajkumar v Sardarilal
- In this case during the pendency of civil suit relating to an immovable property
Respondent 4 (R4) herein purchased the suit property from the defendants (R2 and 3)
by a registered deed of sale R4 was not aware of the pendency of the suit rather the
vendors stated in deed of sale that the property was not a subject matter of any
litigation. Later on suit was decreed ex parte against the R2 and R3. R4 filed na
application seeking setting aside of the decree and also making an application under
order 22 rule 10 of CPC for being brought on record. The trial court has …setting
aside a decree. The applicant preferred a civil revision in the HC which was
dismissed. afterword the appellant preferred an appeal in SC. One of the plea raised
by him is that as per section 52TPA a defendant cannot by alienating the property
during the pendency of the suit venture depriving the successful plaintiff of the fruits
of the decree. The transferee pendente lite treated in the eye of law as a representative
in interest of the judgement debtor and held bound by the decree passed against them.
Neither the judgement debtor nor the defendant has chosen to bring the tranfree on
record by apprising the opponent and the court by taking recourse of order 22 rule 10
of CPC. Therefore the transferee pendente lite is bound by the decree passed against
the judgment debtor. The answer to this question lies in section 146 of the CPC which
allow proceeding by or against representative. the transferee pendente lite being a
representative in intresent of the transferor may join as a party to the suit and defend
the suit.
Dhanlakshmi and ors v P. Mohan
27/9/2023 (Wednesday)
Sec 53
Case: Musahar sahu v Hakimal
- In case a preference is given by a debtor to creditor, …….
3/10/2023
Section 53A- Part performance
Case: Mohammad Musa v Aghore Kumar Ganguli (1914)
Case: Ariff v Jadunath, 1928
Case: Rambhau Namdeo Gajre v Narayan Bapuji Dhotra
9/10/2023 (Monday)
Meaning of the term collateral purpose
Case: Anthony v Ittop, AIR 2000
- In this case the building which is the subject matter of litigation is originally belong to
a family, the senior member of which inducted the appellant in possession as per the
lease deed dated 4th January 1974 which was ostensivly meant for a period of 5 years.
The monthly rent of the building has been fixed at Rs 140. Appellant paid the rent of
the building at the said rate till October 1974. Sometime during this period ownership
of the building was allotted to a female member of the family (Mrs Deviki), as per the
partition affected b/w its member, subsequently ownership of the building was
transferred by deviki to the respondent, who filed the suit as plaintiff. The original
lease deed was not registered one although it required by sec 17 of Indian registration
act to be compulsorily registered.
- The trial court decree the suit by repelling the contention of the appellant that the suit
was not maintainable as P is protected from eviction under the provisions of the rent
act. The trail found that the appellant is not a tenant as the lease was void on account
of non-registration of the lease deed.
- In the 1st appeal filed by the appellant district judge held that in spite of non-
registration of document there was a valid tenacy of the building and hence appellant
could not be evicted except according to the provisions of the rent act.
- In the second appeal filed by the respondent, a single judge of the Kerala HC set aside
the judgement of the district court and remanded the 1st appeal to that court by holding
that the plaintiff was inducted into a possession under a void lease. After remand the
district court ended upon a finding that despite the defect of non-registration of the
instrument the facts and circumstances of the case and evidence clearly show that
parties intended to a lease. The district judge further held that appellant is the tenant
as defined in the rent act and hence the plaintiff is not entitled to decree in this case
and remedy is apply under the rent act.
- When the matter went up to the HC again in 2nd appeal, HC did not agree with the
approach of district judge and held that the plaintiff was entitled to a decree for
recovery the possession of the scheduled property.
- In the appeal of SC by special leave by bench of 2Judge, The SC held that when it is
admitted by both sides that appellant was inducted into possession of the building by
the owner thereof and that appellant was paying monthly rent or had agreed to pay
rent in respect of the building the legal character of appellants possession has to be
attributed to a Jural relationship b/w the parties. Such a jural relationship on the fact
situation of this case cannot be placed anything different from that of a lessor and
lesee. Non-registration of the instrument has caused two consequences. One is that no
lease exceeding one year was created and second is that the instrument become
useless so far as the creation of lease is concerned on the fact jural relationship b/s
respondent and appellant is that of lessor and leasee. Appellant occupied the building
as a tenant and he paid the rent to the landlord and continued as such. He can be
evicted under the rent act and is entitled to take the benefit of rent act.
Case: KB Saha and Sons Pvt Ltd v M/S Development Consultant
- In this case the SC summarize the various decision of HC and SC in order to explain
the meaning of the term Collateral purpose under section 49 of Indian registration act
1908.
a. A document required to be registered is not admissible into evidence under section
49 of Indian Registration act.
b. Such unregistered document can however be used as an evidence of collateral
purpose as provided in the proviso to section 49 of registration act.
c. A Collateral transaction must be independent of or divisible from the transaction
to effect which the law required registration.
d. A collateral transaction must be transaction not itself required to be affected by a
registered document that is a transaction creating any right, title, interest etc. in
immovable property of the value of Rs 100 and upwards.
e. If a document is inadmissible in evidence for want of registration then non of its
term can be admitted in evidence and that to use a document for the purpose of
proving an important clause would not be allowed for using it as a for a collateral
purpose.
Case: Bonder Singh v Nihal Singh, (2003) 4 SCC 161
- In this the court held that the sale deed cannot be read into evidence been not
registered under sec 17 of the registration act but under section 49 of the act it can be
look into for collateral purpose. In other word the same can be look into in order to
find out the nature possession.
Case: Mahindrakar v Babul Kumar Ghosh, AIR 2001 Guahati HC
- In this case the plaintiff purchase the suit property from D1 for consideration by a
registered deed on 7th July 1983. The sake deed was executed and registered on the
same date in the favor of plaintiff of the same day. The plaintiff…..and the sale deed
was executed on 14th June 1983 and registered on 11th July 1983.
- The court held that as per sec 47 of the registration act which prescribe the time from
which registered document operate provide that a registered document shall operate
from the time from which it would have commenced to operate if no registration
thereof had been required or made and from the time of its registration.
11/10/2023
Case: Suraj Lamp and Industries Pvt. Ltd. V State of Haryana and Anr.
19/10/2023 (Thursday)
Case: Indira Kaur v Sheo Lal Kapur
Facts; In this case Mr X executed a sale deed in favor of Mr Y on a certain sum of money. On
the same day another document was executed by Mr. Y in favor of Mr. X agreeing to sell the
property in question for the same amount within ten years of the date of execution of sale
deed by Mr. X. The possession of the property remained with Mr. X and he was to Rupees 80
per month as rent to Mr. Y. Municipal and other taxes were paid by Mr. X. The questions
arose the transaction b/w X and Y is a mortgage or sale.
SC Held: The transaction in question was in essence and substance a mortgage, although in
language look like a sale of the property.
30/10/2023
Case: Krelinger v New Patagonia Meat and Cold Storage Company
- …. Mortgagor mortgage the property with the condition that will repay the mortgage
money by giving one month notice and will not sell the property to any other person
than mortgagee for five years. The Mortgagor repaid the money within two and half
year. The question arises whether he is still bound to sell the property to the
Mortgagee for five years
- Held: The collateral benefit not causing any clog on the right of redemption before the
mortgagor would be bound by it.
Case: Govind Rao v Rajpahul singh
- One of the conditions of the Mortgage was that the mortgagee would having the
possession for a period of 12 years.
- Held: Once the mortgage money paid by the mortgagor then entitled to redeem back
the money from the mortgagee. The collateral benefit to the mortgagee considered as
a clog on the right of the redemption.
Sec 92- Concept of Subrogation
Case: Gokul das v Puran Mal
Facts: Mr. Gokul das who was the creditor of a Mortgagor purchased the equity of
redemption from the mortgagor at a sale in execution of money decree. The property was
subject to a prior mortgage. Gokul das then paid of the prior mortgage. A subsequent
Mortgagee sue him for the possession of the property. After the sale in his favor in the money
decree, the property was in the possession of Gokul das.
Privy council on the basis of equitable rule of intention applied the doectrine of subrogation
and held that Gokul das, the purchaser of equity of redemption was subrogated to the right of
the mortgagee.
LEASE
- Minor cannot give property in lease. But guardian can give the property on lease but
only for 5 years as per minority act.
Distinction b/w lease and licence
Lease Licence
1. It is a transfer of interest in the property, There is not transfer of any interest, it is
therefore it is fall under the category of not a transfer of property.
transfer of property as per sec 5 of TPA
2. In lease the transferee (lessee) get a Licence on the other hand is a personal
propritery right in respect of the land. right of the person (Linecee) using the
land of another person. The right of the
licencee is in the nature of a permission
to do or continue to do certain things on
another’s land. It is therefore personal
right.
3. Lease being a proprietry right, therefore it It being a personal right is not
is a transferable interest transferable and cannot assigned to 3rd
party.
4. Lessee in entitled to maintain action Licencee cannot take action against the
against the trespasser. trespasser.
Case: Associated Hotel of India v R.N. Kapoor (AIR) 1959 SC 1262
Facts:
If the lease under section 107 is required to be registered is not registered, it does not
become void or illegal but only invalid.
Case: Anthony v ….
Effect of Invalid lease-
If the lease is renewed on same terms and conditions, whether it required to be
registered again? – Yes it is again required to be registered.
Case: TK Latika v Seth Karsandas Jamnadas
Facts: The tenanted property was gifted by father to his daughter. She claimed that right to
ask for possession of property from tenant was based not on gift deed but on the basis of fresh
agreement b/w the daughter (new owner) and tenant with enhanced rent.
SC: There is no implied surrender. The court further observed that when only two differences
could be noticed b/w old and new lease agreement former lessor was …… and former rent
was lessor in amount and implied surrender of lease could not be inferred therefrom. In case
if there is ……
Case: Raghuram Rao v Eric
SC observed that under sec 111(g) itself require that for the forfeiture of lease the lessee
should commit breach of an express condition which must provide that on breach thereof the
lessor may re-enter. The word express condition itself stipulates that condition must be clear,
manifest, explicit, unambiguous and there is no question of drawing any inference. Further,
while explaining the law regarding termination of lease by forfeiture the apex court held that
a condition restraining the lessee from alienating leasehold property is not illegal or void and
that in this regard no distinction has been made b/w perpetual and temporary lease. But such
condition alone is not sufficient, there must be a provision that on breach of condition the
lessor is entitled to re-entry i.e. to back the possession. In the absence of a right of re-entry
there cannot be determination of lease by forfeiture.
Difference b/w Charge and the Mortgage
S. Charge Mortgage
no
1. There is no creation of any interest in There is a transfer of interest in property
favor of the charge holder. Therefore, mortgaged, the immovable property is
charge is not a transfer of property as given as a security for the payment of the
per sec 5 of TPA debt. In case mortgagor unable to pay the
mortgage money then the mortgagee can
recover the money from the mortgaged
property
2. Charge may be created by act of It is created only by act of parties.
parties or by operation of law.
3. Charge cannot be enforced against a Mortgaged can be enforced against any
bona fide transferee for value without transferee with or without notice of the
notice of the charge. mortgage.
4. Except a charge created by operation Except Mortgage by deposit of title deed a
of law, the charge created by act of mortgage must be completed by registered
parties must be effected through a deed or delivery of possession as
registered document. prescribed by section 59 of TPA.
Extinction of charge
1. By act of parties- by relinquishment of right and liabilities
2. Novation- By introduction of new terms and conditions
3. Merger
Actionable claim
Mode of Assignment
Case: Anraj v Govt of Tamil Nadu
- Held: “transfer of the right ot participate in the draw held in a lottery is a transfer of
actionable claim and may be effected by a written instrument
