‘* The Acts applicable primarily on transfer of immovable property from one living being (inter vivos) to another. ‘+ “living person” includes a company or association or body of individuals whether incorporated or not. '* The Act excludes from its purview (scope) the transfers by operation of law. For e.g. sale in execution, forfeiture, insolvency or inheritance. ‘+ Also, the Actis applicable on property transfer by individuals, as well as by companies » X _ Types of property Y transfer under the Transfer of fia >. Property Act » (ote) © NL By Act of Parties E.g. Execution, Insolvency, Succession, etc. Testamentary (takes effect after death and governed by the Indian Succession Act) Transfer of Property wheth Moveable or Immoveable Inter vivos (takes effect betweentwo living persons and governedby the T.P. Act.) Special Transfers of Immoveable Property ‘Actionable claims Leases ExchangesAbsolute Interest — When a person owns property, he has an “absolute interest” in the property. Ownership consists of ~ a bundle of rights, the right to possession, right to enjoyment and right to do anything such as selli 1g, mortgaging or making gift of the property. Reversion and Remaindei y 2) Reversion — ‘A“reversion’ is the residue of an original interest which is left after the grantor has granted the lessee a small estate, For example, Raju, the owner of a land may lease it to Shyam for a period of five years. Here, after the period of S years the lease will come to an end and the property reverts back to the lessor. The property which reverts back to him is called the reversion or the reversionery interest. Remainder ~ When the owner of the property grants a limited interst in favour of a person or persons and gives the remaining to others, itis called a “remainder”. For Example, Arnab the owner of a land transfers property to Kangana for life and then to Rangoli absolutely. Here the interest in favour of Kangana is a limited interest, i.e, itis only for life, So tong as Kangana is alive Kangana enjoys the property. Kangana has a limited right since he cannot sell away the property. Kangana’s right is only to enjoy the property. If he sells this interest it will be valid so long as he is alive. So, after Kangana’s death the property will go to Rangoli, interest is called a remainder. \Vested and Contingent Interests — 1) Vested Interest — An interest is said to be vested when itis not subject to any condition, precedent, ie., when it is to take effect on the happening of an event which is certain. A vested interest is transferable and heritable. The word “vested!” is used in two different senses. It may mean “vested in possession” or “vested in interest”. For Example, a gift to Raju on the death of Shyam creates a vested interest in Raju even during the life time of Shyam for there is nothing more certain than death a) “vested in possession” — A rightis said to be “vested in possession” when it isa right to present possession of property For Example, if land is given to Raju for life with a remainder to Shyam, Raju’s right is vested in possession. b) “vested in interest” —AA right is said to be “vested in interest” when it is not.a right to present possession but a present right to future possession. For Example, if land is given to A for life with a remainder to B, A’s right is vested in possession, B's right is vested in interest. 2). Contingent interest — An estate is contingent when the right to enjoyment depends upon the happening of an event which may or may not happen. For Example, a gift to Salman on the marriage of Aishwarya creates a contingent interest. Ground of " Vested interest Contingent interest Difference oa Section 19 of the Transfer of Property | Section 21 of the Transfer of Property ‘Act, 1882. Act, 1882. ‘An interest is said to be vested when | Af estate is contingent when the right to it is not subject to any condition, | enioyment depends upon the happening Meaning. precedent, i.e. when it is to take | fan event which may or may not effect on the happening of an event | happen. which is certain i ea | ™ ition invoh ified The condition involves aspecified | Te condition _ invowes | 2 specie iti , “ uncertain event. There is a chance of the Condition certain event. A certain event means F happening or non-happening of that an event that will eventually happen. , particular event. Right of This right iscreatedas soon as | There ismere chance to be having the ‘Ownership the interest is vested ownership rights. Death of the person who is having this | Death of the transferee before getting the Death of interest will not have any effect over | possession of the property will result in transferee that interest as after the deceased, | the failure of continent interest and the the interest will vest in his legal heirs. property will remain with the transferor. Transferable and Vested interest is a Transferable and Contingent interest is a Transferable right, but whether it is heritable or not, heritable? heritable right. itdepends upon the nature of such any transfer and the condition. The present right There is Paar immediate There is no present right of enjoyment, right even when its enjoyment is | there is a mere expectancy of having such of enjoyment. postponed. aright. X professes to transfer the property ‘O’ to X professes to transfer the property | Yon the condition that he shall construct eames “0! to Y when he attains the age of 20. | a well in his property. If he constructs, Y Oe ‘There is a vested interest with Y for | shall get contingent interest in the the property ‘O’. Property until the condition is not fulfilled. Moveable property ~The Transfer of Property Act does not defines the term “moveable property”. ‘According to General Clauses Act, 1897, movable property means “property of every description except immoveable property”. According to The Registration Act, 1908, movable property includes property of every description excluding immoveable property but including standing timber, growing crops and grass. Immoveable property — ‘© The term “immoveable property” is also not defined under the Act, ‘© According to General Clauses Act, 1897, “immoveable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to any thing attached to the earth” ‘© According to The Registration Act, 1908, immovable property includes under to immoveable property the benefits to arise out of land, hereditary allowances, rights of way, lights, ferries and fisheries, “Attached to the earth” means — which itis attached a) rooted in the earth, as in the case of trees and shrubs; bb) embedded in the earth, asin the case of walls or buildings; or «) attached to what is so embedded for the permanent beneficial enjoyment of that to The following have been recognised as The following have been held not to be immoveable property immoveable property v Right tocolect ents of immovable rOPETYY | y- piahe ot worship Y Arright to way ae . , vernment promissory notes Y Arightto collect dues from fairon apiece of | Y gover aod Y Aright to recover maintenance allowance The Equity of redemption areas The interest of mortgage role } ¥ Adecree forsale on a mortgage deed sored ete Adecree for arrears of rent ¥ Right to collect lac from trees ¥ Aright of ferry Y Aright of fishery Right to receive future rents and profits of land Reversion in property leased ¥_ Afactory ‘* Every person competent to contract and having ownership can transfer property or persons who are authorised to transfer property can also transfer property validly. ‘* Although a minor is not competent to be a transferor yet a transfer to a minor is valid © Property of any kind may be transferred. ‘© Property of any kind excludes from its purview the future property.+ Atransfer of future property can only operate as a contract which may be specifically performed when the property comes into existence, [Formalities involved in transfer— 1) How property can be transferred? = Property can be transferred either orally or by writing ~ Moveable property can be transferred by delivery of possession or by registration. - Immovable property having value of one hundred rupees and upwards can be made only by a registered instrument 2), Attestation — 1) “Attest” means to testify a factor, to bear witness to a fact. 2), Attestation, in relation to a document, signifies the fact of authentication of the signature of the executant of that document by the attestator by putting down his own, signature on the document in testimony of the fact of its execution. 3). Alltransfers do not require attestation. 4) Attestation is valid and complete when two witnesses sign the instrument. Following essentials are required for a valid attestation — ‘+ There must be at least two or more witnesses; ‘+ Each witness must see — a) the executant’s sign or affix his mark to the instrument, or b) some other person sign the instrument in the presence and by the direction of the executant, or ©). receive from the executant a personal acknowledgement of his signature or mark or of the signature of such other person; and ‘+ Each witness must sign the instrument, (i.e. document), in the presence of the executant, Note~ It is not necessary that both attesting witnesses should be present at the same time, 3) Registration ~ Registration is an essential legal formality to effect a valid transfer in certain cases. The advantage of registering a document is that any person who deals with the property would be bound by the rights that are created in earlier registered document. 4) Notice ~ a} Notice, may be actual or constructive b) Ifa person knows about a fact, he has an actual notice. ¢) But, in certain circumstances law treats a man who ought to have known a fact even though he did not in fact know it. This is called constructive notice. a) Transferee should have due notice with respect to the property which is the subject matter of the transfer. 1) Absolute restraint is invalidWhen property is transferred, the transferee should not be restrained absolutely from alienating the property. For Example, Uday gives property to Majnoo and his heirs adding a condition that if the property is alienated it should revert to B. This is invalid condition. When absolute restraint valid? — In following 2 cases, absolute restraint is valid - Situation 1~ In case of lease, lessor can impose a condition that the lessee shall not sublet the property or sell his leasehold interest Situation 2— The second exception is made in respect of a woman who is not a Hindu, Buddhist or Muslim. In such a ‘case, a condition to the effect that she shall not have power during her marriage to transfer the property is. valid. 2), Partial restraint is valid — If there are conditions which restrain the transferee not to alienate the property outside the family then it is considered as partial restraints. For Example ~ Conditions in a family settlement whereby the members are not allowed to sell ‘their shares to a stranger, such conditions are valid, Restraint on the enjoyment of the property is invalid. ‘* Where land is transferred by one to another, the transferor should not impose conditions as to how and in what manner the transferee should enjoy the property. For Example, Bheem sells his house to Chutki and adds a condition that Chutki only should reside in that house, the condition is invalid, ‘* Exception to the above provisions — If the condition which is imposed by transferor is for the benefit of another property which he retains then such a condition is valid. For Example, Circuit has 2 properties, property X and Property Y. Circuit sells property Y to Munna and puts a condition that Munna should not construct on property Y more than one storey so that Circuit's property X which he retains should have good light and free ar. Note— ~ Ifa property is transferred to any person adding a condition that if such person becomes insolvent he ceases to hold that property. Such a condition is not recognised as valid in law. ~ Thisis subject to the exception that if a landlord leases his property he can impose a condition on the lessee that if the lessee becomes insolvent the lease should come to an end. Where on a transfer of property, an interest is created for the benefit of a person not in existence at the date of 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. Thus if a property is given to an unborn person, two conditions should be satisfied: ‘+ It should be preceded by a life estate in favour of a living person. ‘+ Itshould comprise the whole of the remaining interest of the transferor so that there can be no further interest in favour of others. Example = 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. [Conditional transfer= 1) Meaning of Conditional transfer — a) When an interest is created on the transfer of property but is made to depend on the fulfillment of a condition by the transferee, the transfer is known as a conditional transfer. b). Such a transfer may be subject to a condition precedent or a condition subsequent. 2) Essential of conditions — a) the condition must not be impossible to fulfil. ) the condition must not be forbidden by law. ¢)_ it should not be of such a nature thatif permitted it would defeat the provisions of any law. 4) it should not be fraudulent. ) the condition should not be such as to cause injury to the person or property of another. f)_ the condition should not be immoral or opposed to public policy. Accondition precedent is one the fulfillment of | A condition subsequent is one of the fulfliments of which completes an inchoate title, Which extinguishes a title already completed, A condition precedent always comes before the | A condition subsequent always follows the vesting of creation of an interest. an interest which is already complete. In the case of Condition precedent, the vesting, In the case of subsequent, vest ete and not of the estate is postponed till the performance | IN Ue case of subsequent, vesting is complete and no! of the condition precedent. na In the case of condition precedent, an interest _ | In the case of condition subsequent, interest even once vested can never be divested by reason of | though vested, is liable to be divested by reason of the nnon-fulfillment of the condition. nnon-fulfillment of the condition. In the case of condition precedent, an estate is | In the case of subsequent, the estate immediately not in the grantee until the condition precedent | vests in the grantee and remains in him tll the is performed. condition is broken. In the case of condition precedent, transfer will | In the case subsequent, the transfer becomes absolute be void if the condition precedent is impossible | and the condition will be ignored if that condition is to perform, or immoral or opposed to public | impossible of performance or immoral or against policy. public policy. In the case of condition precedent, the condition | In the case of subsequent, it need not be so, and the precedent must be valid in law. invalidity of the conditions can be ignored.[Doctrine of Election=Section35 1). Election may be defined as “the choosing between two rights where there is a clear intention that both were not intended to be enjoyed. 2). The foundation of doctrine of election is that a person taking the benefit of an instrument must also bear the burden. 3) The doctrine is based on the principle that “a donee shall not be allowed to approbate and reprobate and that if he approbates, he shall do all in his power to confirm the instrument which he approbates” ‘Suppose, a property is given to you and in the same deed of gift you are asked to transfer something belonging to you to another person. If you want to take the property you should transfer your property to someone else, otherwise you cannot take the property which is transferred to you by someone. 4)_ If the transferor dies before the person upon whom the benefit is conferred and he rejects the transfer, then the representatives of the transferor will have to satisfy the disappointed person out of the property which was the subject of transfer. ‘Akshay transfers his property worth “1,000 and by the same instrument asks Binod to transfer his property worth °500 to Chinmay. Here, if Binod does not accept, he will not take Akshay’s property and the property will revert to Akshay. If Akshay is alive, itis for him to give some property to Chinmay. But if Akshay dies before Binod has made his election then the heirs of ‘Akshay have to compensate Chinmay from Akshay’s property to the extent of '500. 5) The question of Election arises only when a transfer is made by the same document. If the transferor makes a gift of property by one deed and by another asks the donee to part with his own property then there is no question of election, ‘Arjun transfers his land to Bilal by a document. Arjun by another document transfers Bilal’s, property to Neha. In this case Bilal can retain the property given to him and refuse to transfer his property to Neha as the two transfers do not form part of the same document. 6) The doctrine of election is applicable if the benefit is given directly. A person taking no benefit directly under a transaction but deriving a benefit under it indirectly need not elect. A transfers his property to B’s son and by the same instrument transfer B's property to. In this case B need not to elect and can keep his property. His son can have his gift. 7) Exception to doctrine of election ~ Ifthe transferor gives two benefits to a person and one particular benefit isin liew ofan itern of property belonging to that person which the transferor has asked to transfer to a third-party then if the person elects to retain his property, he can retain the other benefit. ‘© Under A’s marriage settlement, his wife is entitled, if she survives him to the enjoyment of the estate of Sultanpur during her life.‘© Abyhis will bequeaths to his wife an annuity of ‘200 p.m. during her life, infiew of her interest in the estate of Sultanpur, which estates he bequeaths to his son. ‘also gives his wife a legacy of "1,000. ‘After the death of A, his widow elects to take what she is entitled to take under the ‘marriage settlement (ie., the enjoyment of estate of Sultanpur). ‘+ In this case, the wife has to forfeit the claim of ‘200 which her husband has given to her. But she can claim other benefit ie., ‘1,000. Transfer by Ostensible Owner or Doctrine of Holding Out-Section a1 Where a person is the ostensible owner of property and transfers the same for consideration with the consent of the persons interested in such immoveable property then the transfer shall not be voidable on the ground that the transferor was not authorised to make it, provided that the transferee has acted in good faith and has reason to believe that transferor had power to make the transfer Essential conditions for the application of Doctrine of Holding Out — REE hiner ‘© 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. ‘© This Section shall not impair the right of transferees in good faith for consideration without Notice of the existence of the said option, Essential conditions for the application of Doctrine of Feeding the Grant by Estoppel - u‘Aa Hindu, who has separated from his father B, sells to C three fields, X, Y andZ, representing that As 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 2 to him. ‘+ Where a person transfers his property so that his creditors shall not have anything out of the property, the transfer is called a fraudulent transfer. ‘+ Adebtor in order to defeat or delay the rights of a creditor, may transfer his property to some person, who may be his relative or a friend. ‘+ Such transfer will be voidable at the option of the creditor. ‘+ The transfer is valid so long as the creditor does not challenge it in a Court of law and gets a declaration that the transfer is invalid ‘© Once the creditor sues the debtor and says that the debtor has the intention to deceive him, the transfer can be declared invalid by the Court ‘+ Mere preference of one creditor over the others is not fraudulent under the Section, even if the whole property isso transferred and nothing is left for the other creditors. > Situation - A contract for the sale of land has been entered into between A and B. The transferee has paid the price entering into possession and is willing to carry out his contractual obligations. As registration has not been effected A, the transferor, seeks to evict B from the land, Can he do so? No, B will not be allowed to suffer simply because the formality of registration has not been through. The legislature grants some relief to such a transferee under Section 53A, which contains the provisions of doctrine of part-performance. Essential conditions for the operation of the doctrine of part-performance according to Section 534 —Following properties cannot be transferred 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 ofa like nature cannot be transferred. 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. ‘An easement cannot be transferred apart from the dominant heritage. ‘An interest is property restricted in its enjoyment to the owner personally cannot be transferred by him. A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred, ‘Amere right to sue cannot be transferred. A public office cannot be transferred nor can the salary of a public officer, whether before or after ithas become payable. Stipends allowed to military, naval, air force and civil pensioners of the Government and political pensions cannot be transferred. Perpetuity simply means “indefinite Period”, so this rule is against a transfer which makes property inalienable for an indefinite period. No transfer of property can operate to create an interest which isto take effect after the life time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration for that period, and to whom, if he attains full age, the interest created is to belong. The rule against perpetuity is that the minority of the ultimate beneficiary is the latest period at which an estate can be made to vest. The rule against perpetuities applies to both moveable and immoveable property. Thus, the rule against perpetuity contains two propositions — a} No transfer is valid after the life time of one or more persons living at the date of such transfer. Transfer can remain in effect only during the lifetime of an existing person. b)_ Transfer can be extended to a person who is not in existence but if he is in existence at the time of termination of the period of last transfer. The moment the person is born, he shall have contingent interest and after minority i., after the age of 18 years, he shall have the vested interest. Except for the above two conditions, a restriction on alienation of property is void. where the transfer of property is for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to mankind then in such case, rule of perpetuity will be valid. Where by reason of any rules or the rules contained in Sections 13 and 14, interest created for the benefit of a person or 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 or upon failure of such prior intersts also failFor example, property is transferred to A for life then to his unborn son B for life and then to C, who is living at the date of transfer, absolutely. Here B is given only a life interest. So the transfer to B is invalid under Section 13. The subsequent transfer to C absolutely is also invalid, because according to Section 16, if prior transfer fails, the subsequent transfer will also fail 1). Section 17 does not allow accumulation of income from the land for an unlimited period without the income-being enjoyed by owner of the property. The law allows accumulation of income for a certain period only. The period for which such accumulation is valid is — a) the life of the transferor, or b)_ eighteen years from the date of transfer. 2), Any direction to accumulate the income beyond the period mentioned above is void except where itis for— a) the payment of the debts of the transferor or any other person taking any interest under the transferor, b) portions for children or any other person taking any interest in the property under the transfer, and )_ for the preservation and maintenance of the property transferred, | Doctrine of is Pendens Section 52 1) Meaning a) Lis means dispute, Lis pendens means a pending suit, action or petition, b) During the pendency of asuitin a Court of Law, property which is subject toa litigation cannot be transferred ¢) For example, A and B are litigating in a Court of law over property X and during the pendency of the suit A transfers the property X to C. The suit ends in B's favour. Here C who obtained the property during the time of litigation cannot claim the property. He is bound by the decree of the Court wherein B has been given the property. 2), Essentials of Doctrine of Lis Pendens — g ‘+ _Assuit in foreign Court cannot operate as lis pendens.'* The doctrine of lis pendens does not apply to moveables. ‘+The doctrine is not applicable in favour of a third-party. Sale ~ Section 54.57 Definition of Sale — “Sale” has been defined as a transfer of ownership in exchange for a price paid or promised or part paid and part-promised. Essentials of sale — Mode of transfer of sale — In case of intangible property or rever only bya registered instrument If the value of the property is less than rs 100 by a registered instrument or by delivery of property If the value of the property is rs 100 or more by a registered instrumentExchange - Section 118-121 Definition of Exchange — 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”. Essentials of Exchange — Gift = Sections 122-128 ‘A. Definition of Gift — “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. Note - ‘Acceptance must be made during the life time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. B. Essentials of gift — >» Capacity of parties ~ There are two parties to the gift ~ donor and donee. The donor must be a person competent to transfer; whereas the donee may be any person.D. How gift is made? 1) A gift of immoveable property must be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. 2) Agiftof moveable property may be made by a registred instrument or by delivery of property. is incomplete. property, it does not suspend the gift until registration actually takes place. '* The donee in such a case can ask the donor to complete the gift by registration. but not registred itis a valid gift. '* Where a gift in favour of someone is registered but it is not accepted by the donee, the gift '* While registration is 2 necessary formality for the enforcement of a gift of immoveable ‘Thus, the most essential thing for the validity of a giftis its acceptance. Ifthe gift is accepted E. Giftis irrevocable — a) A gift cannot be revoked at the will and pleasure of the grantor. b)_ Revocable gift is void. ]_ Ifthe condition is one which does not depend on the will or pleasure of the donor, the gift can be revoked on the happening of such condition. Example - 1) A gives a field to 8, reserving to himself, with B's assent, the rights to take back the field incase B and his descendents die before A, 8 dies without descendents during A's lifetime, A may take back the field 2) Agives a lakh of rupees to B, reserving to himself with B’s assent the right to take back at leisure Rs. 10,000 out of one lakh. The gift holds goods as to Rs. 90,000 but is void as to Rs, 10,000 which continues to belong to A. Conditional Gift © Agiftwhich is subject to a condition precedent is also valid. But the condition attached to the gift should not be illegal or immoral. © Agift for future property is void G. Onerous gift ~ Onerous gift is when one person transfers several gifts, ie., more than one gifts to another in a single transfer, out of these gifts one is not burdened by obligation but other is burdened with obligation, so here donee has to accept in full, he cannot accept one which is beneficial and reject burdened with obligation. Example, A makes a gift of shares in the companies X and Y. X is prosperous but heavy calls are expected in respect of shares in ¥ company Leases ~ Section 105 to 117 ‘A. Definition of lease — ‘A “lease” of immoveable property is a transfer of a right to enjoy property. Since itis @ transfer to enjoy and use the property, possession is always given to the transferee. The lease of immoveable property must be made for a certain period. B. Essentials of Lease —> ‘transfer of an interest mere permission to do something without any transfer of interest both transferable and heritable neither transferable nor heritable Comes to an end only in accordance with the terms and conditions stipulated in the contract can be withdrawn at any time at the pleasure of ‘the grantor entitled to any improvement or accession made to the property ‘no such entitlement unaffected by the transfer of the property by sale in favour of third party and continues comes to an end immediately if the property is, sold toa third party lessee has the right to protect the possession in his own right licensee cannot defend his possession in his own name as he does not have any propriety right in the property does not come to an end either by death of the | grantor or the grantee comes to an end with the death of either grantor or the grantee C._ Formalities involved — lease from year to year or for any term exceeding one year can be made only by a registered document. Ifa lease is for a term below one year, it can be made by an oral agreement. Ifa lease is created by oral agreement, it must be accompanied by delivery of possession D. Types of tenancies ~ 1) Tenancy from year to year— a) Atenancy from year to year may be made by a grant of land from year to year. bb) If the tenancy is for a year to start with but after the expiration of one year the lessee continues to be in possession and pays the rent to the landlord, the tenancy is regarded as a year-to-year tenancy. ©) If, in case of a tenancy for a period more than a year the landlord wants to terminate or end the lease, he has to give a six-month’s notice to the lessee to quit. 4d) If, in case of a tenancy for a period more than a year the landlord wants to terminate or end the lease, he has to give a six-month’s notice to the lessee to quit. e) Incase of a tenancy from month to month, a fifteen days notice to quit is necessary. 2) Tenancy-at-will— «Ifthe tenant stays with the consent of the landlord till such time as further period is fixed or a fresh contract is made, the tenant is called a tenant-at-will+ The landlord will decide for what further period shall the tenancy be given. + ‘The tenancy-at-will does not mean that the landlord has to give a proper notice to quit. The death of the landlord or tenant determines the tenancy, i.e, the tenancy comes toanend, 3) Atenancy by sufferance ~ * Ifa tenant continues to be in possession after the determination of the period of the lease without the consent of the landlord, he becomes a tenant by sufferance. © This type of tenant is not regarded as a trespasser because the tenant had in his, favour a valid lease to start with © No notice is necessary to such a tenant for eviction, ‘© This tenant is not responsible for rent. He is liable to pay compensation for use and ‘occupation of the land, E. When lease comes to an end? 1) By lapse of time; 2) By the happening of a special event ~ ‘When a lease is granted subject to the happening of an event, it comes to an end when the event takes place. Thus, if B grants lease to A for life, it comes to an end on the death of A. 3) Merger Alease comes to an end when the lessee buys the property of the lessor or when the lessee takes the lessor’s interest by succession. 4) By surrender — Alease may come to an end by surrender 5) By forfeiture — A forfeiture occurs when there is breach of a condition in a lease contract by the lessee. F. Duties of the Lessor ~ 1) To disclose all the material facts which is known to him to the lessee. 2} The next duty of the lessor is to put the lessee in possession of the property 3) Duty to let the lessee enjoy undisturbed possession / quite possession. G. Duties of the lessee ~ 1) Duty to payrent on time. 2). Use the property only for authorized purpose. 3) Not to cause any permanent injury to the property of lessor 4) To disclose all the material facts which is known to him to the lessor. 5) Not to make changes in the structure of the property without the consent of lessor. 6) The lessee should hand over the property at the end of the lease. H. Rights of the lessee — 41) Right to enjoy accretion in the property. 2). To deduct the cost of expenses incurred on the repairs which was done with the consent of lessor. 3) Lessee has the right to recover any amount from the lessor which is paid on behalf of lessor such as municipal taxes.4) ight to remove the fixtures he has erected-during the term of the lease 5) The lessee may avoid the lease, if property is wholly or partly destroyed by tempest, flood, or fire so as to make it impossible to continue the lease for the purpose for which it was let. ‘Actionable Claims ~ Section 130-137 Definition of Actionable Claims ~ 1) Aclaim to any debt, other than a debt secured ~ 2) By mortgage of immaveable property or )_ By hypothecation of moveable property, or ¢) By pledge of moveable property or 4) to any beneficial interest in moveable 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. 2) Actionable claims are claims, to unsecured debts. Examples of Actionable Claims — © Arrears of rent accrual ‘* Provident Fund that is standing to the credit of a member of the Provident Fund ‘+ Money due under the Insurance Policy ‘© Apartner’s right to sue for accounts of dissolved partnership is an actionable claim being a beneficial interest in moveable property not in possession Mortgages - Sections 58 to 104 1) Definition and nature of mortgage — A “mortgage” is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to pecuniary liability. = The transferor is called a mortgagor, the transferee a mortgagee. = The principal money and interest the payment of which is secured for the time being are called the mortgage money and ~__ Instrument by which the transfer is effected is called a mortgage deed. 2)_ Essentials of a mortgage ~ a) Transfer of interest. b) Immovable property should be specifically mentioned. ¢)_ To secure the payment of a loan Kinds of mortgages — 1) Simple mortgage ~ a) Ownership and possession are with the mortgagor. b) Mortgagor have a personal liability to repay the debt. ¢) Mortgage has the right to sell the property in case of default d) Mortgage can sell the property with the consent of the court. e) Ifafter selling the property, entire debt is not recovered then mortgagee may file case against mortgagor for recovery of the remaining debt.2) 3) 4) 5) f Right of foreclosure is not available with the mortgagee. Mortgage by conditional sale - a) b) ¢) 4) e) Ownership and possession will be with mortgagee. If the loan is repaid, the sale becomes void. If the loan is not repaid, the sale will become absolute and valid (On repayment of loan, the mortgagee shall re-transfer the property to the mortgagor. Mortgage has the right of foreclosure if the loan is not repaid. Usufructuary mortgage ~ Possession of property must be delivered to the mortgagee; ‘Ownership of the property will be with the mortgagor Profits or rent earned is appropriated against debt; Mortgagee will get rents and profits in lieu of interest or principal or both There is no personal liability on the part of the mortgagor to pay; The mortgagee will not be entitled to foreclose the mortgage or to sue for sale English mortgage — a) b) c) d) e) Itis a combination of simple mortgage and mortgage by conditional sale. Ownership and possession will be with mortgagee. Mortgagor has personal liability to repay the loan, If the loan is repaid, property will be retransferred to mortgagor In case of default, mortgage can sell the property with the permission of the court. Mortgage by deposit of title deeds - a) ») od d) e) Itis a mortgage created by depositing the original title deeds. In this transaction, a person delivers to the creditor title of his immoveable property with an intention to create a security, and obtains a loan. Itis also called as equitable mortgage in English law. Registration of mortgage agreement is not mandatory ‘An oral agreement between the person and the creditor followed by the delivery of the documents of title to the property is enough. 6) Anomalous mortgage — 7 a) b) ‘A mortgage which is not a simple mortgage, a mortgage by conditional sale, usufructuary ‘mortgage, an English mortgage, or a mortgage by deposit of title deeds is called an anomalous mortgage. An anomalous mortgage is 2 combination of various other mortgages, for example, a usufructuary mortgage may be created and the mortgagee shall have the right of sale. Sub-mortgage - Where the mortgagee transfers by mortgage his interest in the mortgaged property, or creates a mortgage of a mortgage the transaction is known as a sub-mortgage. For example, where Romit mortgages his house to Mehul for Rs. 10,000 and Mehul mortgage his mortgagee right to Aman for Rs. 8,000. Mehul creates a sub-mortgage. 8) Pulsne mortgage —Where the mortgagor, having mortgaged his property, mortgages it to another person to secure another loan, the second mortgage is called a puisne mortgage For example, where Mr. D mortgages his house worth * one lakh to Mr. M for "40,000 and mortgages the same house to Mr. KV for a further sum of "30,000, the mortgage to Mr. Mis first mortgage and that to Mr. KV the second or puisne mortgage. Mr. KV is the puisne mortgagee, and can recover the debt subject to the right of Mr. M, the first mortgagee, to recover his debt of 40,000 plus interest. a). Right of redemption — Any condition wh and take back the property. )_ Right of partial redemption ‘Rights of mortgagor ~ On repayment of loan, mortgagor can take the property back b)_ Right against clog (obstruction) on equity of redemption ~ stops the mortgagor from recovering property will be void and mortgagor ‘A mortgage is transfer of an interest in the property made by the mortgagor as a security for the loan, charge Is not the transfer of any interest in the property though itis security for the payment of an amount. ‘mortgage can only be created by act of parties. charge may be created by act of parties or by operation of law A mortgage deed must be registered and attested by two witnesses charge need not be made in writing, and if reduced to writing, it need not be attested or registered in a mortgage, the transferee of mortgaged property from the mortgagor, can only acquire the remaining interest of the mortgagor, and is therefore, only bound by the mortgage. charge as a general rule, cannot be enforced against a transferee for consideration without notice. In a mortgage, there can be security as well as personal liability. In fact, the absence of a personal liability is the principal test that distinguishes a charge from a simple mortgage. In a charge created by act of parties the specification of the particular fund or property negatives a personal liability and the remedy of the charge-holder is against the property only