BLS LLB 5 Years Sem 7 Transfer of Property Act and Easement Act 2024-25 Question Paper with Solutions

Foreclosure is the mortgagee's right, under section 67, to obtain from the Court a decree that the mortgagor be absolutely debarred of his right to redeem the mortgaged property, so that the mortgagee's interest becomes absolute.

It is available at any time after the mortgage-money has become due and before a decree for redemption has been made or the money paid or deposited, and, by clause (a), it belongs to a mortgagee by conditional sale, who has no right of sale.

An heir apparent is a person who would succeed to another's estate if he survived him and the other died intestate, but who has, during that other's lifetime, no right, title or interest in the property, only a chance of succeeding, called spes successionis.

Section 6(a) provides that such a chance cannot be transferred, and a transfer of it is void.

A transfer is conditional when the interest created depends upon a condition, that is on the happening or not happening of an event.

Section 25: such an interest fails if the fulfilment of the condition is impossible, forbidden by law, of a nature that would defeat the provisions of any law, fraudulent, involves or implies injury to the person or property of another, or is regarded by the Court as immoral or opposed to public policy.

Section 92: a person who redeems a mortgage acquires, so far as regards redemption, foreclosure or sale, the same rights as the mortgagee whose mortgage he redeems had against the mortgagor or any other mortgagee. He steps into that mortgagee's shoes.

It is open to the persons in section 91 but not to the mortgagor.

"Mesne profits" is not defined in the Transfer of Property Act. Section 2(12) of the Code of Civil Procedure, 1908 defines it: mesne profits of property mean those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on those profits, but not including profits due to improvements made by the person in wrongful possession.

Worked example. "To B for life, then to B's unborn son absolutely" is good, and by section 20 the son takes a vested interest on his birth. "To B for life, then to B's unborn son on attaining 25" is void as to the son, because vesting is postponed beyond his minority.

Related sections. Section 15, a class gift fails only as to the members it cannot validly reach. Section 16, an interest limited after or on the failure of a void interest also fails. Section 30, an invalid ulterior disposition does not affect the prior one. Section 17, a direction for accumulation beyond the longer of the transferor's life or 18 years is void as to the excess.

Exceptions. Section 18, transfers for the benefit of the public; personal contracts creating no interest in property; a charge; the covenant of redemption; a lease with a covenant for renewal; and transfers to a corporation.

The charge on dissent. Where the transfer is for consideration, or is gratuitous and the transferor has died or become incapable of a fresh transfer before the election, the reverting benefit is charged with making good to the disappointed transferee the value of the property attempted to be transferred.

How election is made. Acceptance of the benefit, with knowledge of the duty to elect and of the material circumstances or with waiver of enquiry, is an election to confirm. Knowledge is presumed after two years' enjoyment without dissent, and is inferred from any act making restoration impossible. If the owner does not signify his intention within one year, he may be required to elect, and failure within a reasonable time is deemed a confirmation. A disability postpones the election.

The exception. Where a benefit is expressed to be conferred in lieu of the property, the owner claiming the property relinquishes that benefit only, not other benefits under the same transaction.

"Determination" here means extinction, and the modes are in Chapter V of the Indian Easements Act, 1882, sections 37 to 51.

Suspension and revival. By section 49 an easement is suspended where the dominant owner becomes entitled to possession of the servient heritage for a limited interest, or the converse. By section 51 an easement extinguished under section 45 revives where the destroyed heritage is restored by alluvion, or where a destroyed servient or dominant building is rebuilt on the same site within twenty years, a rebuilt dominant building not imposing a greater burden; and a suspended easement revives when the cause of suspension is removed.

2. By operation of law: arising without agreement, for example the unpaid seller's charge for the price under section 55(4)(b), the buyer's charge for prepaid purchase money under section 55(6)(b), a Hindu widow's charge for maintenance, and a charge created by a decree of Court.

Charge and mortgage

The Act's own illustration to section 31 says exactly this: "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."

Two things John cannot say.

• He cannot say that he is the owner and may deal with the farm as he pleases. He took only a life interest, and the interest carried the condition on its face.
• He cannot say the condition is a restraint on alienation struck down by section 10. Section 10 voids a condition absolutely restraining the transferee from parting with his interest. A condition against cutting timber restrains no alienation at all; it regulates the physical treatment of the property.

Section 25, conditional transfer. Every conditional transfer must pass this gate: the interest fails if the condition is impossible, forbidden by law, of a nature that would defeat the provisions of any law, fraudulent, involves injury to the person or property of another, or is immoral or opposed to public policy. This condition is none of these.

Section 29, fulfilment of a condition subsequent: strict compliance. A condition subsequent must be strictly fulfilled before it can divest a vested interest. The paper says John cut down "certain trees", which is the very act the proviso identified, so the condition is strictly satisfied. Had the proviso spoken of a particular wood and John cut a different tree, strict compliance would fail and his interest would survive, which is exactly the point of section 29.

Section 12 is expressly saved by the opening words of section 31: a condition making an interest determinable on the transferee's insolvency or attempted alienation is void, except in a lease. That is not this case.

This is the first illustration to section 33 of the Indian Easements Act, 1882, with Nisha, Sneha and Diya for A, B and C.

The parties first. The right of way is an easement appurtenant to Diya's house. So the dominant heritage is Diya's house; Diya is the dominant owner and Sneha, her tenant, is the occupier of the dominant heritage; Nisha's land, over which the path runs, is the servient heritage.

(1) Is there damage to the substantial right?

Yes. On the Act's own illustration this is substantial damage, and it is substantial damage to DIYA, the landlord.

• The damage is substantial not because anyone has yet been inconvenienced, but because the obstruction is permanent and, if acquiesced in, will destroy the evidence of the right. Under section 47 a discontinuous easement such as a right of way is extinguished by twenty years' non-enjoyment, and under the Explanation to section 15 an obstruction becomes an interruption if submitted to or acquiesced in for one year after notice. A permanent obstruction left standing therefore threatens the right itself.
• The person whose reversionary right is affected is Diya, the owner. That is why the illustration names C, the landlord, and not B, the tenant.

Sneha's own position. She is not without a remedy. Section 33 expressly allows the occupier of the dominant heritage to sue, and section 34 and the general law recognise the interest of a person in possession. Sneha may sue in respect of the actual interference with her use of the way, and she is a proper plaintiff for an injunction; but the damage that the illustration calls substantial, the injury to the evidence of the right, belongs to Diya.

This is the practically important remedy here, because damages will not clear a blocked path. A mandatory injunction to remove a permanent obstruction may be granted under section 39 of the Specific Relief Act, and a prohibitory injunction to restrain further obstruction under sections 37 and 38.

3. Abatement, section 36. Notwithstanding section 24, the dominant owner may abate the obstruction, that is remove it himself. Self-help is hedged by the general law: he must commit no breach of the peace, do no unnecessary damage, and ordinarily give notice before entering the servient owner's land. It is a limited and risky remedy, and a suit is the safer course.

A practical point on delay. Because a permanent obstruction acquiesced in for one year after notice becomes an interruption under the Explanation to section 15, and twenty years' non-enjoyment extinguishes the easement under section 47, the dominant owner should act promptly and record his protest. Delay does not merely weaken the claim; it can destroy the right.

The proviso must be checked, and it is satisfied. By the proviso added in 1929, no such transaction is a mortgage by conditional sale unless the condition is embodied in the document which effects or purports to effect the sale. The facts say the term appears "under a document" evidencing the security, so the condition is in the same instrument.

Why it is a mortgage and not a sale. It has every mark of section 58(a): an interest in specific immoveable property is transferred, for the purpose of securing repayment of a loan, and a debt subsists between the parties, so the relationship is one of debtor and creditor. That last feature is the surest single test, because a mortgage secures a debt while a sale extinguishes one.

Formalities. The principal money being Rs. 100 or more, section 59 requires a registered instrument signed by A and attested by at least two witnesses.

(2) If A makes the payment, what are B's rights and obligations?

A's payment redeems the mortgage. B's obligations are those in section 60. On payment or tender of the mortgage-money at a proper time and place, B must:

1. deliver up the mortgage-deed and all documents relating to the property in his possession or power;

What B cannot do. He cannot say that the two years having passed the property is simply his. The equity of redemption is extinguished only by the act of the parties or by a decree of a Court (proviso to section 60), and a clause providing for automatic transfer is a clog on the equity of redemption, void on the maxim "once a mortgage, always a mortgage". If A defaults, B's remedy is a suit for foreclosure under section 67(a), and he has no right of sale.

First, section 7. Raj is neither entitled to that flat nor authorised to dispose of it. It is his father's property, and being an only child gives him no title to it. Managing the property and taking the decisions confers no power of disposal either: a person who looks after property is not its owner.

Second, section 6(a). During his father's lifetime Raj is only an heir apparent, and what he has is a spes successionis, the chance of an heir apparent succeeding to an estate, which cannot be transferred. His father may sell, gift or bequeath the flat to anyone, and the expectancy disappears. A transfer by Raj of the flat, or of his chance of inheriting it, is void ab initio, and consideration does not cure it.

Third, "joint flats" does not make him a co-owner. The facts say the family has two flats, one in each name. A flat standing in the father's name alone is the father's separate property, and living together creates no joint ownership. Even between genuine co-owners, section 44 allows a co-owner to transfer only his own share, the transferee stepping into his shoes; it never permits the sale of the whole.

1. Competent parties. The seller must be competent to contract under section 11 of the Indian Contract Act, 1872 (majority, sound mind, not disqualified) and must be entitled to the property or authorised to dispose of it (section 7). The buyer must be competent to hold property; a minor may buy, since taking a benefit imposes no liability, but may not sell.

2. Price in money. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Consideration in kind makes it an exchange (section 118); no consideration makes it a gift (section 122). The price may remain unpaid at completion, the seller having a charge for it under section 55(4)(b).

3. Mode of transfer.

• Tangible immoveable property of Rs. 100 or more, and a reversion or other intangible thing: only by a registered instrument.
• Tangible immoveable property worth under Rs. 100: by registered instrument or by delivery, delivery taking place when the seller puts the buyer in possession.

Every flat falls in the first class, so a registered sale deed is indispensable, and an unregistered deed transfers nothing.

(b) 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 affected thereby. Reason: it exists to protect the reversion and has no independent life; separated from the reversion it would be a bare right to forfeit another's estate. A lessor who transfers the reversion carries the right of re-entry with it, and that is lawful.

(c) Easement. An easement cannot be transferred apart from the dominant heritage. Reason: by section 4 of the Indian Easements Act an easement exists for the beneficial enjoyment of the dominant heritage; apart from it, it would be an easement in gross, which Indian law does not recognise. By section 19 of that Act it passes automatically with the dominant heritage.

(d) Restricted interest. An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Reason: it was given for that person alone. Examples: a religious office such as shebait or mahant, the emoluments of a pujari, an inalienable service tenure, and a personal right of pre-emption.

(g) Stipends and pensions. Stipends allowed to military, naval, air-force and civil pensioners of the Government, and political pensions, cannot be transferred. Reason: the same policy of personal maintenance. Once the pension is paid into the pensioner's hands it becomes ordinary money and he may deal with it freely.

(h) Transfers opposed to law. No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, for example a transfer of res communes such as air, light, running water or the sea, or of a public road or a public right of way; (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872; or (3) to a person legally disqualified to be a transferee, for example a Judge, legal practitioner or officer of a Court in respect of an actionable claim (section 136).

(i) Statutory tenant, farmer and lessee. Nothing in the section authorises 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. Reason: these interests are conferred by statute for the personal benefit of the holder on grounds of agrarian or revenue policy.

For full marks, cover: section 54 in all four of its parts, the essentials, sale against contract for sale and against other transfers, then section 55 in the four groups the section itself uses, with the two charges.

Definition, section 54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made. Such a 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 immoveable property of a value less than one hundred rupees, it may be made either by a registered instrument or by delivery of the property, and delivery takes place when the seller places the buyer, or such person as he directs, in possession.

Contract for sale. A contract for the sale of immoveable property is a contract that a sale shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

Essentials of a sale

• (a) To disclose to the buyer any material defect in the property or in the seller's title of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.
• (b) To produce all documents of title in his possession or power for the buyer's examination on request.
• (c) To answer all relevant questions as to the property or the title, to the best of his information.
• (d) On payment or tender of the amount due, to execute a proper conveyance at the buyer's cost when the buyer tenders it at the proper time and place.
• (e) Between the contract and delivery, to take as much care of the property and the title deeds as an owner of ordinary prudence would take.

On or after completion:

• (f) To give possession to the buyer or to such person as he directs.
• (g) To pay all public charges and rent accrued due up to the date of the sale, the interest on all encumbrances up to that date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances then existing.
• (h) To deliver the title deeds on payment of the whole price, where the whole of the property is sold.

• (a) To disclose to the seller any fact as to the nature or extent of the seller's interest of which the buyer is, and the seller is not, aware, and which materially increases the value of that interest.
• (b) To pay or tender the purchase money at the time and place of completing the sale, subject to a deduction where the property is sold subject to encumbrances.
• (c) Where the ownership has passed, to bear any loss arising from destruction, injury or decrease in value not caused by the seller.
• (d) Where the ownership has passed, to pay the public charges and rent and the interest on encumbrances accruing due after the date of sale.

BUYER'S RIGHTS, section 55(6)

• To the benefit of any improvement in, or increase in the value of, the property, and to the rents and profits, from the date the ownership passes.
• Unless he has improperly declined to accept delivery, to a charge on the property, as against the seller and all persons claiming under him, for the purchase money properly paid in anticipation of delivery, with interest, and for the earnest and costs awarded to him where he properly declines to accept delivery.

For full marks, cover: section 122 with acceptance during the donor's lifetime, the essentials as a numbered list, section 123 split into moveable and immoveable, sections 124 to 129, and then section 126 in full with its two grounds and both illustrations.

Definition, section 122. "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 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.

The essentials

1. Transfer of ownership, and not of a lesser interest.
2. The property must be existing, moveable or immoveable. A gift of future property is void (section 124).
3. The transfer must be voluntary, that is with free consent, untainted by coercion, undue influence, fraud or misrepresentation.

• Section 124: a gift of future property is void; a gift of both existing and future property is void as to the latter only.
• Section 125: a gift of a thing to two or more donees, of whom one does not accept, is void as to the interest he would have taken.
• Section 127, onerous gifts: where a gift is a single transfer of several things, of which one is burdened by an obligation and the others are not, the donee can take nothing unless he accepts it fully; where it is by separate and independent transfers, he may accept one and refuse another. A donee not competent to contract who accepts an onerous gift is not bound, but becomes bound on attaining competence if, with knowledge, he does not then reject it.
• Section 128, universal donee: where the gift consists of the donor's whole property, the donee is personally liable for all the debts and liabilities of the donor at the time of the gift, to the extent of the property comprised in the gift.
• Section 129: the chapter does not affect gifts of moveables made in contemplation of death (donatio mortis causa), nor any rule of Muhammadan law, under which a hiba requires declaration, acceptance and delivery of possession, and not registration.

The 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 Rs. 10,000 out of it. The gift holds good as to Rs. 90,000 but is void as to Rs. 10,000, which continue to belong to A.

Explanation. "Land" includes things permanently attached to the earth; "beneficial enjoyment" includes possible convenience, remote advantage and even a mere amenity; and "to do something" includes the removal and appropriation by the dominant owner of any part of the soil of the servient heritage or anything growing or subsisting thereon, which is how a profit a prendre counts as an easement in India.

CHARACTERISTICS OF AN EASEMENT

1. There must be a dominant and a servient heritage. An easement cannot exist in the air; it must be attached to land for whose benefit it exists.
2. The two heritages must be different and in different hands. Section 4 says "other land not his own". While one person owns both, any such right is only a quasi easement.
3. It must be for the beneficial enjoyment of the dominant heritage, and not for the personal convenience of its owner. This is why an easement in gross is not recognised in India.
4. It is a right in the land of another, a jus in re aliena, and therefore an interest in immoveable property.

Who may impose and who may acquire, first. By section 8 an easement may be imposed by any one to the extent to which he may transfer his interest in the servient heritage; sections 9 to 11 apply that rule to servient owners, lessors, mortgagors and lessees. By section 12 an easement may be acquired by the owner of the dominant heritage, or on his behalf by a person in possession of it, and a lessee cannot acquire, for the property leased, an easement over other property of his lessor.

1. By express grant. The servient owner grants the easement by an instrument. Where the servient heritage is immoveable property of Rs. 100 or more, the grant must be in writing and registered, an easement being an interest in immoveable property.

2. By implied grant or reservation. Implied from the circumstances and the presumed intention of the parties, principally in the cases in section 13, but also where land is granted for a purpose that cannot be achieved without the right.

6. By custom, section 18. In virtue of a local custom, which must be ancient, certain, reasonable and continuous. The Act's illustration is the villager's right to graze cattle on the common pasture.

7. By transfer of the dominant heritage, section 19. The easement passes with the land, together with its incidents, unless a different intention appears.