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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Transfer of Property Act, 1882

Wednesday, October 31, 2012
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of lis pendens — Held, effect of Section 52 is not to render transfers affected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit — In other words, the transfer remains valid subject, of course, to the result of the suit — The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Whether a pendente lite purchaser is entitled to be impleaded as a party to the suit? — Held, a pendente lite purchaser’s application for impleadment should normally be allowed or “considered liberally”.

 
Saturday, March 31, 2012
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — The broad principle underlying section 52 of the T.P. Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination — Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed — Doctrine of Lis Pendens.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of Lis Pendens — Applicability of — Sale, in the present case, has taken place in favour of the applicant at a time when there was no stay operating against such sale, and in fact when the second appeal had not been filed — Held, doctrine of lis pendens will apply since the sale was executed at a time when the second appeal had not been filed but which came to be filed afterwards within the period of limitation — The doctrine of lis-pendens is founded in public policy and equity, and if it has to be read meaningfully such a sale as in the present case until the period of limitation for second appeal is over will have to be held as covered under section 52 of the T.P. Act — Dicta in Krishanaji Pandharinath Vs. Anusayabai AIR (1959) Bom 475 followed.

 
Tuesday, September 20, 2011
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 6(a) r/w Section 2 — The provisions of Section 6(a) have to be read along with Section 2 of the Act.

 
Friday, September 09, 2011
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 53A — Defendants did not get possession of the property after execution of the sale deed — Held, the provision of Section 53A of the Transfer of Property Act is not attracted and defendants cannot take advantage of that.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 53A — A party can take shelter behind this provision only when the following conditions are fulfilled. They are:

 

 (i) The contract should have been in writing signed by or on behalf of the transferor;

 

 (ii) The transferee should have got possession of the immoveable property covered by the contract;

 

 (iii) The transferee should have done some act in furtherance of the contract; and

 

 (iv) The transferee has either performed his part of the contract or is willing to perform his part of the contract.

 

 A party can take advantage of this provision only when it satisfies all the conditions aforesaid — All the postulates are sine qua non and a party cannot derive benefit by fulfilling one or more conditions.

 
Thursday, September 08, 2011
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 8 r/w Section 54 — Where the sale deed recites that on receipt of the total consideration by the vendor, the property was conveyed and possession was delivered, the clear intention is that title would pass and possession would be delivered only on payment of the entire sale consideration — Therefore, where the sale deed recited that on receipt of entire consideration, the vendor was conveying the property, but the purchaser admits that he has not paid the entire consideration (or if the vendor proves that the entire sale consideration was not paid to him, title in the property would not pass to the purchaser.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 8 r/w Section 54 — Where the intention of the parties is that passing of title would depend upon the passing of consideration, evidence is admissible for the purpose of contradicting the recital in the deed acknowledging the receipt of consideration — Evidence Act, 1872, Section 92.

 
Tuesday, May 10, 2011
Transfer of Property Act, 1882

Transfer of Propert Act, 1882 — Section 129 and Section 123 — Held, Section 129 of T.P. Act preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable peoperty by a Mohammedan. 

 
Wednesday, December 22, 2010
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 58(e) — What is important in terms of the requirement of Section 58 (e) is not that the purchaser has agreed or bound himself to transfer the property by a particular date but that seller has bound himself to pay the amount by a certain date.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 58(e) — English Mortgage — For a transaction to constitute an English mortgage the following essential conditions must be satisfied: 

 

 (1) The Mortgagor must bind himself to re-pay the mortgage money on a certain date. 

 

 (2) The property mortgaged should be transferred absolutely to the Mortgagee. 

 

 (3) Such absolute transfer should be made subject to proviso that the Mortgagee shall re-convey the property to the Mortgagor upon payment by him of themortgage money on the date the Mortgagor binds himself to pay the same.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 58(c) — Mortgage by conditional sale — For a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale — That requirement is stipulated by the proviso which admits of no exceptions.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 58(c) — Mortgage by conditional sale — The broad statement of law made by the High Court, in the present case, to the effect that every sale accompanied by an agreement for re-conveyance of the property will constitute a mortgage by conditional sale, held, is not correct — To constitute mortgage by conditional sale, condition regarding payment of the mortgage money as a condition for transfer of the property to the seller must be embodied in the sale-deed itself — K. Simrathmull v. Nanjalingiah Gowder AIR 1963 SC 1182 referred.

 
Thursday, December 16, 2010
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of Lis Pendens — Transfer of property during pendency of suit — Right, title or interest of the transferee — Held, if the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected — On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion — If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of Lis Pendens — If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit.  

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of Lis Pendens — Alienation of joint property by a co-owner during pendency of partition suit — Held, where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee’s right and title are saved fully or partially — Suit for Partition.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Doctrine of Lis Pendens — Joint Family Property — Alienation of joint property or portion thereof by the co-owner by representing himself to be the absolute owner during the pendency of the suit for partition, held, is hit by doctrine of lis pendens.

 
Wednesday, December 08, 2010
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 56 — Recovery of Debts due to Banks & Financial Institutions Act, 1993 — This Court, held, is  satisfied that merely because for recovery of the loan secured by banks, a special Act, namely, Recovery of Debts due to Banks and Financial Institutions Act, 1993 has been enacted which is not a bar for the civil Court to apply to other relief such as Section 56 of the T.P. Act.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 56 and Section 81 — Difference between — Held, Section 56 deals with the concept of marshalling in a transaction involved in subsequent sale, on the other hand, Section 81 is applicable only to mortgages.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 56 — Concept of marshalling by subsequent purchaser — Held, can be explained by the following illustration:–

Illustration

Suppose A owns properties X and Y. Both these properties are mortgaged to C. Later, A sells property X to B. Now, B will be entitled to insist that his vendor A, shall satisfy his mortgage debt out of property Y (unsold) in the first instance as far as possible. If after property Y is exhausted there still remains balance of debt, only then property X will be drawn upon.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 56 — Suit for specific performance — Whether the right of marshalling by subsequent purchaser as provided in Section 56 of the Transfer of Property Act, 1882 is available to a decree holder in a suit for specific performance and whether the High Court is justified in granting such a relief in the absence of any pleading and issue before the trial Court? — Held, yes.

 
Thursday, November 11, 2010
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 3 — Specific Relief Act, 1963, Section 19(b) — The subsequent purchaser has to be aware before he purchases the suit property — What is material is the inquiry at the time when subsequent sale transaction was entered into — If he fails to make an inquiry, he cannot be termed as a bona fide purchaser in good faith for value without notice of the original contract — R.K. Mohammed Ubaidullah & Ors. v. Hajee C. Abdul Wahab (Dead) by LRs. & Ors., AIR 2001 SC 1658 relied.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 3 — Specific Relief Act, 1963, Section 19(b) — Subsequent purchaser, held, is required to make inquiry as to the nature of the possession or title or further interest, if any, of the other party over the suit property at the time when they entered into sale transaction, notwithstanding, that they were already aware that the other party was in possession of the suit property as the tenant — Thus, what is material is the inquiry at the time when subsequent sale transaction was entered into — R.K. Mohammed Ubaidullah & Ors. v. Hajee C. Abdul Wahab (Dead) by LRs. & Ors., AIR 2001 SC 1658 relied.

 
Saturday, July 24, 2010
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Held, Section 52 will not render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit — Transfer of any right, title or interest in the suit property or the consequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit — Doctrine of lis pendens.

 
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 52 — Whether the court has power to exempt the suit property from the operation of section 52? — Held, court has power to exempt the suit property from the operation of section 52 subject to such conditions it may impose. 

 
Saturday, November 15, 2008
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Sections 122 and 123 — Held, love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act.   

 
Saturday, September 13, 2008
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 54 — A contract for sale does not, of itself, create any interest in or charge on immoveable property — Therefore, where the parties enter into a mere agreement to sell, it creates no interest in the suit property in favour of the vendee and the proprietary title does not validly pass from the vendors to the vendee and until that is completed no right to enforce pre-emption arises.

 
Friday, January 04, 2008
Transfer of Property Act, 1882

Transfer of Proper Act, 1882 — Sections 122 and 123 — Gift deed — Acceptance of — Whether an averment made in the deed of gift in regard to handing over of possession is sufficient proof of acceptance thereof by the donee? — Held, yes — It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift — Even a silcence may sometime indicate acceptance. 

 
Transfer of Property Act, 1882

Transfer of Proper Act, 1882 — Section 122 — Gift deed — Essential elements — The definition of gift contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are : (i) the absence of consideration; (ii) the donor; (iii) the donee; (iv) the subject matter; (v) the transfer; and (vi) the acceptance.  

 
Transfer of Property Act, 1882

Transfer of Proper Act, 1882 — Gift deed — Acceptance of — Transfer of Property Act does not prescribe any particular mode of acceptance — It is the circumstances attending to the transaction which may be relevant for determining the question–There may be various means to prove acceptance of a gift — The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance — The fact that possession had been given to the donee also raises apresumption of acceptance.

 
Monday, September 18, 2006
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Sections 113 and 111(h) — Waiver of notice to quit — Whether mere acceptance of rent by the landlord for the period subsequent to the notice by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting ? — Held, no — Mere acceptance of rent by the landlord for the period subsequent to the notice to quit does not amount to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended — Appeal dismissed.

 
Wednesday, August 09, 2006
Transfer of Property Act, 1882

Transfer of Property Act, 1882 — Section 111 — Civil Procedure Code, 1908 — Order 20, Rule 12 — Liability of unauthorized occupant to pay rent equivalent to mesne profits — Held, the occupants would be liable to pay the rent equivalent to mesne profits with effect from the date from which they are found to have ceased to be entitled to retain possession of the premises as tenants and for such period the landlord’s entitlement cannot be pegged down to the standard rent.

 
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