LAW OF PROPERTY NOTES BY

M.USAMA AMJAD

5TH SEMESTER

JINNAH LAW COLLEGE

 LAW OF PROPERTY

THE TRANSFER OF PROPERTY ACT 1882

PROPERTY

INTRODUCTION –

The concept of property occupies an important place in human life because it is

practically impossible to live without the use of material object which constitutes the
subject matter of property. Property may be classified into corporeal and incorporeal
property, movable and immovable property, real and personal property, public and
private property

DERIVED

The term property is derived from the Latin word 'properietate' and the French
equivalent 'proprius' which means a thing owned. The concept of property and
ownership are very closely related to each other. There can be no property without
ownership and ownership without property.

DEFINITION

Anything that can be owned that which is capable of ownership, whether real or personal
tangible or tangible, movable or immovable

OR

According to Locke, " Every man has a property in his own person." every individual has
the right to preserve his property, that is his, liberty and estate.

TERANSFER OF PROPERTY
INTRODUCTION

Under the transfer of property act every person is competetnt to transfer property if he is
competetnt to contract,authorized to dispose transferable property or is entitled to
transferable property.transfer of property act deals with the transfer of immovable
property .

MEANING OF TRANSFER.
Convey of one thing from one person to another person os called transfer.

MEANING OF PROPERTY.
The right to possess, use and enjoy a determinate thing; the right of ownership.
OR.
The ownership of any thing is called property.

DEFINITION

According to sec 5 of T.P.A 1882

Transfer of Property means an act by which a living person can conveys property, in
present or in future, to one or more other living persons, or to himself, or to himself and
one or more or other living persons, and to transfer property is to perform such act.

OR.
Transfer of property means, a living person transfer his property to another living person
himself or by his agent. It may be transfer in present or in future.

ESSENTIALS OF VALID TRANSFER ARE AS UNDER.

(I)PARTIES
(a). TRANSFEROR a person who makes a transfer or conveyance of property.

COMPETENCY OF TRANSFEROR.
In transfer of property, competency of transferor is must.
• Major
• Sound mind
• No disqualified by law
• Ownership
(b). TRANSFEREE a person to whom a conveyance is made.

COMPETENCY OF TRANSFEREE.
The transferee must be competent about holding the property, he must not be disqualified
by law.

(III). TRANSFER MUST BE BETWEEN LIVING PERSONS.

Transfer must be perform between teh living persons.

(IV). EXISTING OF PROPERTY.

Existing of property is a valid element of transfer of property.

(V). LAWFUL OBJECT.

In transfer of property the object of transfer of property must be lawful. If objects are not
lawful, property cannot be transferred.

(VI). LAWFUL CONSIDERATION.

Lawful consideration regarding transfer of property is must.

(VII). PROPERTY MUST BE TRANSFERABLE.

According to section 6 os transfer of property act 1882, the property must be transferable
if property is not transferable, it cannot be transfer

(VIII). IDENTICAL.
Transferor and transferee must be identical and property which are being transfer must be
also identical.

(IX). ATTESTATION.
Attestation is also an important essential about the transfer of property.
(X). REGISTRATION.
In transfer of property, registration of transfer of property is very necessary.

(XI). IMMOVEABLE PROPERTY.

Transfer must be concerned with immoveable property.

WHO CAN TRANSFER PROPERTY

According to transfer of property act 1882 following persons are competent to transfer
property.

(I). COMPETENT AND ENTITLED PERSON.

A person, who is competent to contract and is entitled to transferable property, is
considered competent to transfer property.

(II). AUTHORIZED PERSON.

A person, who is authorized to dispose of that transferable property, which does not
belong to him/her, is considered competent to transfer the property

What may be transferred

Property of any kind may be transferred, except as otherwise provided by this Act or by
any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation

obtaining a legacy on the death of a kinsman, or any other mere possibility of a like
nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to
anyone except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him.

(d) A right to future maintenance, in whatsoever manner arising, secured or determined,

cannot be transferred.
(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.

(g) Stipends allowed to military, naval, air-force and civil pensioners of the government
and political pensions cannot be transferred.

(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the meaning of
section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally
disqualified to be transferee.

(i) Nothing in this section shall be deemed to authorize a tenant having an un transferable
right of occupancy, the farmer of an estate in respect of which default has been made in
paying revenue, or the lessee of an estate, under the management of a Court of Wards, to
assign his interest as such tenant, farmer or lessee

SALE.

Sale is a contract whereby property is transferred from one person to another for a
consideration of value. To constitute a sale there must be parties standing to each other in
the relation of buyer and seller.

Relevant Provisions. Sec 54 deals with sale and its modes

Sec 55 enumerates the rights & liabilities of seller and buyer.

Sale Defined. Case Law Definition. “The sale of immovable property means transfer of
an ownership on a price to be paid or promised to be paid with delivery of possession”
2002 SCMR 1821

ESSENTIALS OF SALE

To constitute a valid sale the following ingredients must be present:

(I)(PARTIES)

Buyer. For a sale of an immovable property there should be a buyer to whom the
property is being sold.

Seller. For a valid sale of immovable property it is essential that the vendor received the
stipulated money and gave possession and ownership to property to buyer.

(II)Competent to Transfer. A person who does not own a property can not transfer it. A
person can validly transfer the property who has rights and interest in the property in full
and permanently

(III)Titled to the Property. In order to be a valid sale the seller of the property should
not have a defective title in the property.

(IV)Subject Matter. Section 54 of the transfer of property act deals with the immovable
property. Hence the subject matter of the section 54 is immovable property.

(V)Price. The term price means money which is consideration. Sale of the property must
be followed by the payment of price and delivery of possession

(vi) Delivery of Possession. CASE LAW AIR 1921 pat 87. For the purpose of section
54 there must be a real and not a constructive delivery of property.

(vii)Rights and Liabilities of Seller and Buyer. According to section 55 of the Transfer
of Property Act there are some rights and liabilities upon seller an buyer which they have
to consider and following during the contract of sale:

SELLER rights and liabilities are given below: -

RIGHTS

(1) Rents and Profits. The seller is entitled to the rents and profits of the property till
the ownership thereof passes to the buyer.

(2) Charge for unpaid Price. Where the ownership of the property has passed to the
buyer before payment of purchase money or any part thereof remaining unpaid the
 seller has right to bring charge against the buyer which may be personal or through
suit.

Liabilities

(1) Disclose Material Defects. Seller is bound to disclose to the buyer any
material defects in the property or in the seller’s title thereto of which the seller is
and the buyer is not aware and which the buyer could not with ordinarily care
discover.

(2) Provide all Documents of Title. Under sec 55 the seller is bound to produce
buyer on his request for examination all documents of title relating to the property
which are in the seller’s possession or power.

(3) Delivery of Possession. Seller is bound to give on being so required the buyer
or such person as he directs such possession the property as its nature admits.

(4) Answering Questions. The seller is bound to answer to the best of his
information all relevant questions put to him by the buyer in respect to the property
or the title thereto.

(5) Take Care of Property. Seller is bound to take care of the property between
the date of the contract of sale and till the date of delivery of the property and if all
documents to title are also in his custody he will make smooth arrangement for its
security.

BUYER .

BUYERS RIGHTS AND LIABILITIES ARE GIVEN BELOW: -

. RIGHTS

(1) To get benefit. The buyer is entitled where the ownership of the property has
passed to him the benefit of any improvement in or increase in value of the
property and to the rents & profits thereof.
 (2) Rights to Rent and Profits. The buyer is also entitled to the rents and profits
of property where ownership of it has passed to him

(3) Charge on Property. The buyer is also entitled to the charge on the property
as against the seller and al person claiming under him.

(4) Costs. The buyer is also entitled for the cost if any awarded to him of a suit to
compel specific performance of the contract or to obtain a decree.

LIABILITIES

(1) Pay full Purchased Money. Buyer is bound to pay or tender at the time and
place of completing the sale the purchase money to the seller

(2) To Bear any loss. The buyer is bound where the ownership of the property has
passed to the buyer to bear any loss arising from the destruction, injury or
decrease in value of the property not caused by the seller.

(3) Pay public charges & rents. The buyer is bound where ownership of the
property has passed to the buyer as between himself and the seller to pay all
public charges and rent which may become payable in respect of the property.

(4) Take care of property. The buyer is bound to take care of the property if
possession is delivered and purchased money is paid partly.

GIFT

GIFT. The gift is the voluntary transfer of property without consideration. It is an act
whereby any thing is voluntarily transferred from the true possessor to another person
with full intention that the thing shall not return to the donor and receiver to retain the
thing entirely as his own without restoring it to the giver.

Meaning. Blacks Law Dictionary. “Gift is a voluntary transfer of property to another

made gratuitously and without consideration”. .
 Definition U/S 122. Gift is the transfer of certain existing movable or immovable
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.

Essentials of Gift. Following are the essential which constitutes a gift: -

a PARTIES

There must be two persons: to make a gift there must be two persons i.e.

Donor: A donor is someone who is giving the gift

DONEE: a person who receives a gift

b. Parties must be competent. In gift there are two parties know as donor and donee.
For a valid gift both the parties must be competent to involve themselves in gift. Minor
being donor cannot gift his movable property to someone else and on the other hand if
donee is legally disqualified from being a transferee then in such case he is disqualified to
as he is not competent for gift.

c. Transfer. In order to constitute a gift, there must be a transfer or property within the
meaning of sec 5 of this act, according to which “transfer of property” is an act by which
a living person conveys property to one or more living persons.

d. Certain existing property. A gift can be made only of existing property, and the same
must be transferable under sec 6. Thus there cannot be a gift of property that ma come
into existence in future, or of the things referred in sec 6.

e. Made voluntary. An essential ingredient of a gift is that the donor should voluntarily
and without consideration transfer the property to the donee.

f. Without consideration. This is an essential characteristic of a gift. The word

consideration means some thing in return. Where a gift is made with consideration it is
not a gift and the same is void according to the definition of gift. To constitute a valid gift
the transfer must be made without any consideration.
g. Acceptance by donee. The acceptance of the gift is an essential element of a gift.
Under transfer of property act there must be actual acceptance by the donee which
doesn’t requires an express acceptance by the donee. The court may draw his assent from
his conduct through presumption that he accepted the gift.

h. Acceptance on behalf of donee. A gift of existing movable or immovable property

made voluntarily and without consideration by the donor can be accepted by or on behalf
of the donee. The use of the words accepted by or on behalf of the donee shows that the
donee might be a person unable to express acceptance of a gift being a minor.

i. Legal form must be complied with. Both in movable and immovable gifts the legal
requirement must be fulfilled to validate the gift.

REVOCATION OR SUSPENSION OF GIFT UNDER SECTION 126 OF TPA,

1882

Section 126 of Transfer of Property Act states the ground of revocation and suspension
of gifts:

1. A gift can be revoked if there is a failure of consideration and if it were a contract then
it might get rescinded.

2. If the validity of a gift is dependent on any specified event, and that of such specified
event is not depend on the will of the donor then the gift can be suspended or revoked,

MORTGAGE

MORTGAGE.` A right in another’s property was known in Roman Law as a jus in re

aliena. A mortgage is a security given by a person for ensuring or facilitating the
fulfillment of some obligation under taken by him. Usually this obligation is the
repayment of debt

Relevant Provisions. Sec 58 of transfer of property act deals with the law of mortgage.

Meaning. A mortgage is an interest in land created by a written instrument providing

security for the performance of a duty or the payment of debt.
ESSENTIALS .

a.Contract/Transfer. In every mortgage there must be a contract express or implied the

original and international hypothecation of the mortgaged property to secure the
repayment of the mortgage money is of the very essence of a mortgage. B

b. Transfer of Interest. In contract of mortgage the essential thing is the interest. For a
valid mortgage there must be a valid transfer of an interest between the parties.

c. Immovable Property. The phrase “Immovable Property” is defined in sec 3 of the act.
A mortgage under the act is confined (restricted) to a transfer of immovable property. A
building attached to the earth or a house imbedded in the earth is immovable property.

d. Immovable Property must be Specific. To create a mortgage it is necessary to

specify the immovable property which is made security for the payment of the debt or the
performance of the engagement.

e. Two Competent Parties. In order to constitute mortgage there must be two partied
called mortgagor and mortgagee. Both parties must be competent according to the
requirement of law in present or the contract of mortgage may not take place.

f. Consideration /Purpose of Mortgage. To determine whether a transaction is a

mortgage or not, it has to be found whether the property comprised in it is made security
for the payment of a debt or for the performance of an engagement. If it appears from the
deed that the parties intended to create a security on the immovable property a mortgage
is created if not then there is no consideration and no mortgage.

g. Legal Form. Fulfillment of Legal forms is also of much importance without which a
mortgage cannot be legalized. Where the law requires that a mortgage which money
value is more than 100 rupees shall be registered then it should be registered otherwise it
will not take effect in case of dispute. In case of mortgage by deposit of title deed it is
necessary that it must be signed by the mortgagor, attested by at least tow witnesses and
registered.

KINDS OF MORTGAGE.

(1) SIMPLE MORTGAGE SEC 58 (B). Where without delivering possession of

mortgage property the mortgagor binds himself personally to pay the mortgage money
and agrees expressly or impliedly, that in the event of his failing to pay according to his
contract the mortgage shall have a right to cause the mortgaged property to be sold.

ESSENTIALS. Essentials of simple mortgage are as following: -

(1) Sale of Property. Under the simple mortgage if the mortgagor does not repay the
mortgage money within the prescribed time then in such situations the mortgagee has the
right to sale the property.

(2) Personal Liability. Under the simple mortgage there is a personal liability of the
mortgagor to repay the mortgage money.

(3) Restriction on Transfer of Possession. In simple mortgage the possession of the

mortgaged property remains with the mortgagor. It does not passes to the mortgagee.

(4) Restriction on Transfer of Title. The rights in the mortgaged property are not
transferred to the mortgagee in simple mortgage.

(5) Restriction on Foreclosure. Under the simple mortgage the mortgagee does not
enjoy the right of the foreclosure.

EXAMPLE OF SIMPLE MORTGAGE: Basher mortgages his house to Ahmad to get

one lakh rupees as loan from Ahmad, however, basher does not deliver possession of his
house to Ahmad, but binds himself personally to pay mortgage money, and agrees that
Ahmad will have right to obtain decree of court for sale of the house for payment of
mortgage money in case of basher’s failure to pay mortgage money. It is case of simple
mortgage.

(2) MORTGAGE BY CONDITION SEC 58 (C). In a mortgage by conditional sale

there is an ostensible sale of the mortgaged property. There is also a condition that in case
of failure to pay the money on a certain date the sale shall become absolute but on such
payment being made the sale shall become void and the mortgagee shall retransfer the
property to the seller. The remedy of the mortgagee in such a transaction is a suit for
foreclosure.

ESSENTIALS. Essentials of conditional mortgage are as following:

1) Conditional Sale. One of the essentials of the mortgage by the conditional sale, there
should be conditions attached with ostensible sale of the immovable property.

(2) Ostensible Sale. Under the mortgage by the conditional sale the mortgagor ostensibly
sales the property which is not an actual sale.

(3) Relationship. The relationship between the parties should be like that of debtor and
the creditor.

(4) Foreclosure. Under the mortgage by the conditional sale the mortgagee has the
remedy which is the foreclosure.

(5) Restriction on Personal Liability. Under mortgage by conditional sale the

mortgagor is not personally liable to repay the mortgage money.

EXAMPLES OF MORTGAGE BY CONDITIONAL SALE: Basheer apparently sells

his house to Ahmad for ten lakh rupees on this condition that such sale will become
absolute on certain date when there will be default of payment of mortgage money. It is
case of mortgage by conditional sale

(3) USUFRUCTUARY MORTGAGE SEC 58 (D). In Usufructuary mortgage the

mortgagor transfers the possession of mortgage property to the mortgagee. The rents and
profits accruing from the property are also given to the mortgagee he has the right to
receive them under this kind of mortgage. The mortgagor has no personal liability under
Usufructuary mortgage. The mortgagee has no power either of sale or of foreclosure of
the property.

ESSENTIALS. Essentials of Usufructuary mortgage are as following

(1) Delivery of Possession. Under the Usufructuary mortgage there should be delivery of
the possession

(2) Restriction on Personal Liability. Under Usufructuary mortgage there is no

personally liable to repay the mortgage money on the mortgagor

(3) Retention of Possession. It is an essential feature of the Usufructuary mortgage that

the mortgagee enjoys the possession of mortgaged property.

(4) Rents and Profits. Under Usufructuary mortgage the mortgage is entitled to receive
the rents and profits accruing from the mortgaged property.
(5) Restriction on Fixed Duration. There is no fixed period of duration mortgage under
Usufructuary mortgage; the mortgage possesses the property until the mortgagor repays
the mortgage money.

(6) Restriction on Sale. It must be noted that under the Usufructuary mortgage the
mortgagee does not have the right to sale the mortgage property.

EXAMPLE OF USUFRUCTUARY MORTGAGE: Basheer delivers possession or

binds himself expressly or impliedly to deliver possession of mortgaged property to
Ahmad, and authorizes Ahmad to retain such possession until payment of mortgage
money. He also authorizes Ahmad to receive those rents and profits which accrue from
mortgaged property or he also authorizes Ahmad to receive any part of such leases and
benefits. Indeed he approves Ahmad to proper such rents and profits in lieu of interest or
in payment of mortgage money or partly in lieu of interest or partly in payment of
mortgage money. It is case of Usufructuary mortgage.

(4) ENGLISH MORTGAGE SEC 58 (E). In English mortgage the mortgagor binds
himself personally to repay the mortgage money on certain date. There is also transfer of
the mortgaged property absolutely to the mortgagee. The possession is delivered and if
the mortgagor doesn’t pay the mortgage money the mortgagee has the only remedy of a
sale of the property.

ESSENTIALS. Essentials of English mortgage are as following: -

(1) Complete Transfer. A very import feature of the English mortgage is that it is a
complete transfer which is followed by the delivery of possession to the mortgagee.

(2) Personal Liability. The mortgagor is personally liable to repay the mortgaged money
on a fixed date.

(3) Certain Date. It is an essential feature of the English mortgage that a date is fixed for
the repayment of mortgage money.

(4) Re-Transfer of the Property. The English mortgage is an absolute transfer and it is
subjected to the condition that the mortgage property shall be re transferred to the
mortgagor on the repayment of the debt.
EXAMPLE OF ENGLISH MORTGAGE: Basheer mortgages his house to Ahmad for
a loan of one lakh rupees, and he binds himself to repay mortgage money on a certain
date, and transfers mortgaged property absolutely to Ahmad. However such transfer is
subject to this condition that Ahmad will re-transfer mortgaged property on repayment of
mortgage money before agreed date. It is case of English mortgage.

(5) MORTGAGE BY DEPOSIT OF TILE DEED SEC 58 (F). The recognition of this
type of mortgage is for the benefit of the mercantile community to enable them to raise
quick money. In this kind mortgage there should be delivery of documents of title to the
creditor with intent to create a security thereon. The property can be situated nay where.
The physical possession of property is not necessary or is not delivered. The remedy
available to the mortgagee is a suit for sale.

ESSENTIALS. Essentials of Mortgage by Deposit of Tile deed are as following: -

(1) Deposit of Title Deeds. One essentials of the Mortgage by Deposit of Tile deed is
that the mortgagor should deposit the title deeds with the mortgagor.

(2) Deposit in the specified Area. According to Mortgage by Deposit of Tile deed the
title deeds should be deposited in the town in which the transaction I being made.

(3) Debt. Under the mortgage by the deposit of the title deeds the debts may be a future
debt or exiting dent.

(4) Deposit as Security of Debt. The deposit of the title deeds which is made in
considered as the security of the debt.

(5) Registration. A Mortgage by Deposit of Tile deed is not required to be registered.

EXAMPLE OF MORTGAGE BY DEPOSIT OF TITLE DEEDS: Basheer delivers to

a creditor or his/ her agent documents of title to his own house with intent to create a
security on these documents to title. It is case of mortgage by deposit of title deeds.

ANOMALOUS MORTGAGE: A mortgage which is not a simple mortgage, a mortgage

by conditional sale, a Usufructuary mortgage, English or a mortgage by deposit of title
deeds, is called an anomalous mortgage.
EXAMPLE OF ANOMALOUS MORTGAGE: An example of anomalous mortgage is
dharta. Such form of mortgage is present in Multan District. Through this mortgage,
possession of mortgaged land remains with mortgagor. However, he/she pays 1/80th part
of produce of mortgaged land to mortgage.

LEASE

INTRODUCTION. Lease is a contract wherein one lets to the other a certain space, property
or building for specified unit of time generally a week, month or year. It is an agreement under
which owner gives up possession and use of his property for valuable consideration and for
definite term and at end of term owner has absolute right to take control of the property back.
It is essential for the establishment of the relationship of landlord and tenant that there should
be a lease actual or presumed

. Relevant Provision. Section 105 of Transfer of Property Act defines lease, where
section 108 enumerates the rights and liabilities of lessor and lessee.

Definition. Blacks Law Dictionary. Lease is “A contract by which a rightful possessor

of real property conveys the right to use and occupy that property in exchange for
consideration usually rent”.

AIR 1968 SC 175. A lease is the grant of a right to the exclusive possession of
immovable property for a determinate term, less than that which the grantor has himself
in the land for a certain consideration

ESSENTIALS OF LEASE. The essential elements of lease agreement are: -

a. Contract to Transfer. A lease is a transfer of property as defined or considered by

transfer of property act. To constitute a lease there should be contract of transfer between
two parties. Where there is no contract here can be no lease. Merely because one person
occupies another person’s land a lease will not come into existence.

b. Two Competent Parties. For the contract of lease the presences of two parties is
essential one lessor called the landlord and second the lessee or called the tenant.
Both the parties must be competent and qualified for the said contract.
 c. Subject Matter of Lease. The subject matter of a lease must be immovable property
as defined in sec 3 of the Transfer of property act.

d. Right to Enjoyment. The section defines a lease as the transfer of a right to enjoy
immovable property. The fundamental conception of a lease is that it is the separation o
the right of possession from ownership. Under lease a lessee is granted the right of
possession to enjoy the control over a immovable property just like and owner of the land
but under the provision of lease contract.

e. Duration of Lease. One of the requisites of a valid lease is that it must be granted for a
certain time express or implied or in perpetuity.

f. Consideration of Lease. Presence of consideration for the lease transaction is

necessary without the same lease is of no use or not constituted. This consideration must
be either premium or rent as defined by the section of the transfer of the property act.

g. Rendition of Consideration. The consideration of lease has to be rendered

periodically or on specified occasions to the transferor by the transferee. The covenant in
a lease with regard to time of payment is essential term of lease.

h. Transfer of Interest. The right of enjoyment as elaborated by this section (sec 105) is
an interest in the property. Unless there is a transfer of such an interest there can be no
lease.

RIGHT AND LIABILITIES OF LESSOR AND LESSEE (SEC 108).

. RIGHT AND LIABILITIES LESSOR.

(1) To disclose material defect. The lessor is bound to disclose to the lessee any material
defect in the property with reference to its intended use of which the former is and the
latter is not aware and which the latter could not with ordinary care discover.

(2) To put lessee in possession of the property. The lessor is bound on the lessee’s
request to put him in he possession of the property.

(3) Contract with Lessee. The lessor shall be deemed to contract with the lessee that if
the lessee pays the rent reserved by the lease and performs the contracts binding on the
lessee he may hold the property during the time limited by the lease without interruption.
RIGHT AND LIABILITIES OF LESSEE. Following are the rights and liabilities of
lessee: -

RIGHTS OF LESSEE. Following are the rights of lessee:-

(a) Right to Repair. If the lessor neglects to make within a reasonable time after notice
any repair which he is bound to make to the property the lessee may make the same
himself and deduct the expense of such repairs with interest from the rent or otherwise
recover it from the lessor.

(b) Circumstance when Lease to be Void. If by fire, tempest or flood or violence of an

army or of a mob or of any other force any material part of the property be wholly
destroyed or rendered substantially and permanently unfit for the purpose for which it
was let, the lease shall at the option of lessee be void.

(c) Right of Accession (Attainment or succession). If during the continuance of the

lease any accession is made to the property such accession shall be deemed to be
comprised in the lease.

(d) Right to Removal. The lessee may even after the determination of the lease remove
at anytime whilst he is in possession of the property lease but not afterwards all things
which he has attached to the earth, provided he leaves the property in the state in which
he received it.

(e) Right to Crops. When a lease of uncertain duration determines by any means except
the fault of the lessee, he or his legal representative is entitled to all the crops planted or
shown by the lessee and growing upon the property when the lease determines to free
ingress and aggress to gather and carry them.

(f) Right of Deduction with Interest. If the lessor neglects to make any payment which
he is bound to make and which if not make by him is recoverable from the lessee or
against the property the lessee may make such payment himself and deduct it with
interest from the rent or otherwise recover it from the lessor.

LIABILITIES OF LESSEE. Following are the liabilities of the lessee:

(a) To Disclose the Facts. The lessee is bound to disclose to the lessor any fact as to the
nature or extent of the interest which the lessee is about to take of which the lessee is and
the lessor is not aware and which materially increases the value of such interest.
(b) To keep property in good condition. The lessee is bound to keep and on the
termination of the lease to restore the property in as good condition as it was in at the
time when he was put in possession. But if any natural or un-controllable events take
place and by whom the property gets damaged then it is the duty of lessee to give notice
of the same to lessor if he do not give the notice he is responsible.

(c) To Pay Premium. The lessee is bound to pay or tender at the proper time and place
the premium or rent to the lessor or his agent in this behalf.

(d) Not to Erect any Permanent Structure. The lessee must not without the lessor’s
consent erect on the property any permanent structure except for agriculture purpose.

(e) To Use Property as man of ordinary prudence. The lessee may use the property
and it is products as a man of ordinary prudence would use or permit another to use. If he
does not do the same he is liable to lessor.

DETERMINATION OF LEASE

Section 111 states about the determination of the lease, which lays down the ways in
which lease is terminated:

1. Lapse of time –

When the prescribed time of the lease expires, the lease is terminated.

2. Specified event – When there is a condition on time of lease depending upon a

happening of an event.

3. Interest – Lessor’s interest to lease the property may cease, hence resulting in the
termination of the lease.

4. Same owner – When the interest of both lessor and lessee are transferred or vested in
the same person.

5. Express Surrender – This happens when the lessee ceases to have an interest in the
property and comes into a mutual agreement with the lessor

. 6. Implied Surrender – When the lessee enters into a contract with another for the
lease of property, this is an implied surrender of the existing lease

7. Forfeiture – There are three ways by which a lease can be terminated:

• When there is a breach of an express condition by the lessee. The lessor may get the
possession of the property back.

• When lessee renounces his character or gives the title of the property to a third person.
• When the lessee is termed as insolvent by the banks, and if the conditions provide for it,
the lease will stand terminated.

8. Expiry of Notice to Quit – When the notice to quit by the lessor to the lessee expires,
the lease will also expire.

REGISTRATION ACT 1908

INTRODUCTION

Registration Act deals with the registration or non-registration of documents. All sorts of
documents are not compulsorily registerable in the Registration Act there are documents
which require Registration. Documents required under Registration Act to be registered if
they are not so registered loose evidentiary value and shall not be admitted in evidence.

Relevant Provisions Section 17 Registration Act 1908 describes of all those documents
of which registration is compulsory.

Meaning of Document An instrument on which is recorded, by means of letters, figures

or marks, the original, official, or legal form of something which may be evidentially
used.

Object of Registration The main object of the registration is the maintenance of the
collection of the land revenue or to give the security to the person concerned.

DEFINITION ACCORDING TO BLACK’S LAW DICTIONARY:

“Registration is a system by which owner of the real

(movable/immovable)(tangible/intangible) property may petition in court, for certificate
of such title, as being the owner whose name appear on the certificate.”
THE DOCUMENTS WHICH NEED TO BE REGISTERED COMPULSORILY

EFFECT OF NON-REGISTRATION (SECTION 49 R.A, 1908):

➢ Effect of non-registration is hit by section 49 of the R.A, 1908. Which provides that
such document shall provides that no such document shall operate to create, declare,
assign, limit or extinguish any right title or interest on or to immovable property or
confer (dedicate) any power to adopt, unless it has been registered.

SECTION 17 CLAUSE (1):

1. GIFTS OF IMMOVABLE PROPERTY: By virtue of section 17(1)(a) the

instrument of gift of immovable property is a compulsorily registerable document.
Such deed having not been registered cannot legally convey any right title or interest,
in or to immovable property.
2. INSTRUMENTS UNDER SCTION 17(1)(b): Other non-testamentary instruments
which purports to create, declare, assigns, limit or in future any right, title or interest
whether vested or contingent of the value of RS 100/- or upwards to or in immovable
property.

ILUSTRATION / EXAMPLE:

• Mortgage deed Mortgage-deed should be registered when mortgage-money is

hundred rupees or more than hundred rupees.
• Charge
➢ Documents creating a charge on immovable property of the value of RS 100/- or
upwards requires registration under this act.

3. REDEMPTION: Redemption deed for transferring back the land valuing RS 100/- or
more requires registration, if the mortgage was registered.
4. INSTRUMENT OF PARTITION: Instrument of partition of immovable property of
the value of RS 100/- or upwards is compulsorily registerable under this act.
5. ASSIGNMENT OF A HOUSE-HOLD: An assignment of an interest in lease hold
property requires registration of the interest assigned of the value RS 100/- or
upwards.
6. VARIATION OF A MOTGAGE-DEED:E-DEED: An agreement by which a
mortgagor agrees to pay an interest on a rate highest than fixed by the mortgage-deed,
is a compulsorily registerable document.

RECIEPT OF CONSIDERATION U/S 17(1)(c): Non-testamentary instrument which

acknowledges the receipt or payment of any consideration on account of then creation,
declaration, assignment, limitation or extinction of any such right, title or interest shall be
registered.

ILLUSTRATION:

1. SALE-DEED: A sale-deed requires registration under this clause, where by not only
the immovable body is conveyed but the price thereof is also acknowledged.
2. SURRENDER OF LAND: A receipt of consideration of over 100/- for surrendering
certain land is compulsorily registerable.
3. RECIEPT OF PREMIUM: A receipt which purports to be for “NAZRANA” paid
for a lease requires registration, but not if the same is less than 100/- .

LEASES U/S 17(1)(d): Leases of immovable property from year to year or for any term
exceeding on year or reserving a yearly rent is compulsorily registrable.

Leases of Immoveable Property Following points are important for explanation of

registration of lease of immoveable property;

(a) Lease From Year to Year: Lease of immoveable property should be registered
when lease is from year to year.

(b) Lease for that term, which exceeds one year: Lease of immoveable property
should be registered when such lease is for that term, which exceeds one year. It reveals
that lease for life should also be registered.

(c) Lease, which reserves a yearly rent: Lease of immoveable property should be
registered when such lease reserves a yearly rent

➢ Where no term of lease is fixed or is for an independent period, it does not needs to be
registered.
TRANSFER BY DECREE,ORDER OR AWARD U/S 17(1)(d): Non-testamentary
instruments, transferring or assigning any decree or order of a court or award when such
decree or order award purports to create, declare, assign, limit or extinguish whether in
present or in future any right, title or interest whether vested or contingent to the value of
RS 100/- or upwards to or in immovable property shall be registered.

Illustration:

1. MORTGAGE-DECREE: A mortgage-decree must be registered as in relation to

immovable property and is within the definition/context of this clause.

2. DECREE CREATING A CHARGE: A decree creating a charge shall be registered.

Because it creates a right and an assignment to or in immovable.
3. Compromise-deed Following points are important for explanation of registration of
compromise-deed
(a) Non-implementation of Compromise Compromise-deed should be registered
when application has been filed in court for compromise, but court has implemented
compromise.
(b) In Case of Dismissal of Suit Compromise-deed or compromise-decree should be
registered in that situation when court has given order that compromise is affected, but
suit is dismissed, and when value of compromise deed or compromise-decree is one
hundred rupees or more than one hundred rupees.

AUTHORITIES TO ADOPT A SON U/S 17(3): An authority to adopt a son as

distinguishes from deed of adoption is compulsory registerable, for the reason that is
not merely a deed but adoption itself that create the status of adopted son, and create
the interest in the property.

OPTIONAL REGISTERABLE DOCUMENTS :

As under section.18 of R.A 1908, any document not required to be registered u/s 17
may also be registered under this act , thus following are the some example of
optionally registrable documents.

1] WILLS:
 Wills are not compulsorily registrable . the mere fact that a will is not such
a circumstance as must ipso facto tell against its genuineness of the will. It was held
that the fact that will is registered is a string piece of evidence in favour of its
execution .

2] LEASES OF LESS VALUE :

If a lease is not made from year to year , or does not
exceed one year , it does not require registration , but optionally .

3] PARTNERSHIP DEED :
In order to decide whether a partnership deed is
registrable compulsorily or optionally , the nature of the business has to be taken into
consideration , therefore when a partnership deed merely declares an already existing
right in immovable property , its registration is optional , otherwise compulsorily .

4] POWER OF ATTORNEY :
Power of attorney does not came under any of
categories of the documents specified in S.17, however it may be registered
optionally under section .18.

5] DEED OF ADOPTION :
A deed of adoption reciting the factor of adoption and
stating that adoption had acquired certain rights in immovable properties maybe
registered. Whereas authorities to adopt a son is compulsorily registrable U\S 17(3).

6] RELEASES:
A release in writing of a right to certain arangments to which the
person releasing is entitled is optionally registrable.

7] COMPROMISE :
The only test in this connection is the intention of the parties and
generally where the parties have an antecedent title of same kind in the properties and
they only agree to acknowledge their title by compromise, the agreement can’t be
said to create, declare, assign, limit or extinguish any right, tittle or interest , and the
agreement if reduced to writing need not to be registered.

8] MEMORANDUM OF PAST TRANSACTION:

A document containing mere a
recital of a transaction which had already taken place, or in which r=there is an
admission of past transection is optionally regisertable.

9] PROMISSORY NOTE :
A promissory note may (optionally) be registered under
this act.

10] GUARDIANSHIP OF PROPERTY:

A document appointing a person guardian of
a property of a minor is not a transfer and is optionally registrable .

11] FAMILY ARRANGMENTS:

A deed of arrangement meant merely for usufruct of
certain immovable property for the maintenance of a female which does not confer
any title on her, not does limit or extinguish any body’s right in the property does not
required to be registered compulsorily but optionally.

12] AGREEMENT TO RE-CONVEY:

An agreement to execute a deed to re-convey
the property does not require registration but optionally.

13] AGREEMENT TO PARTITION:

Agreement of partition does not require
compulsorily registration but may be registered U\S 18. R.A 1908.

14] AGREEMENT TO CREATE A LEASE:

 Compulsorily registration is not
prescribed a document which make no present demise and creates no immediate
interest like instrument to create a lease.

15] AGREEMENT TO MUTATUION:

An agreement to enter formal mutation in a
revenue register, does not itself acquire any right and hence requires no compulsorily
registration.

16] AGREEMNENT TO MORTGAGE :

Any agreement made by a debtor to the
creditor to create a mortgage does not create any rights etc , hence it does not requires
compulsorily registration.

17] AGREEMENT TO SELL:

An agreement to sell does not requires compulsory
resgistration, because it does not it self create, or extinguish any right etc, but maybe
registered optionally U\S 18 of R.A 1908.

18] MEMORANDUM OF PAST GIFT:

A document which is merely a memorandum
of a gift made in the past does not require compulsory registration.

19] RECTIFICATION DEED:

When a document purports to be a rectification deed
consequently ( as a result) upon a mistake found to have crept in the sale deed, the
documents does not required to be registered compulsorily.

20] APPOINTMENT OF NEW TRUSTEE:

A deed of appointment of new trustees
which itself does not purport to create , extinguish or limit any right , does not need to
be registered compulsorily .
 EFFECT AND VALUE OF NON-REGISTRATION

Introduction
Registration Act has provided concepts of compulsory and optional registration of
documents. The reality is that it is registration of document, which makes document
authentic in law. It means that there are some effects and value of registration of
document. Similarly there are also some effects and value of unregistered document
or non-registration of document.

Relevant Provisions Section 49 Registration Act 1908 deals with effects of the non-
registration of the documents.

Effect of Non-Registration of Documents required to be registered

Following are the effects

Effects of Non-Registration
These are the effect of non-Registration
(i) It shall not operate to create, declare assign, limit or extinguish any right, title or
interest whether vested or contingent to or in immovable property.

INSTANCES:
Following are the instances of these documents that cannot operate to create declare,
limit or extinguish any right, title or interest in to immovable property.
(i) Unregistered sale-deed
(ii) Unregistered lease deed
(iii) Unregistered charge
(iv) Unregistered deed of gif

Evidentiary value of non-registered document

A document which is not registered can be produced and admitted into evidence in
order to prove the collateral purpose. Thus a person who has been put in possession of
the property as a result of an unregistered document, can protect his possession by the
production of that document.

REFUSAL TO REGISTER THE DOCUMENTS

There are certain circumstances under which the registering authority can refuse
registration of documents. The Registration Act, provides for refusal to register the
documents under certain circumstances. The refusal could be on the ground of
jurisdiction of the sub-registrar or for non-compliance of rules and procedure. Some of
the grounds on which there could be a refusal by the sub-registrar to register a
document are listed below.

1.Language Not Understand

The document is in a language not understood by the registering officer, or a language
not commonly used in the district; and translated version of the same is not produced
along with the document

2.NOT ATTESTED BY AUTHORITY

The document has corrections, alterations, erasures, interlineations blanks, which are
not attested by the executant.

3. TIME BARRED
The document is presented after prescribed time limit.

4.BY IRRELEVENT PERSON

The document is presented by a person who has no right to present it

5.NOT SATISFIED
The registering officer is not satisfied as to the identity of the person appearing before
him as executant or he is not identified to the satisfaction of the registering authority

6.DATE OF EXECUTION IS NOT MENTION

The date of execution is not mentioned in the document or correct date is not possible to
be ascertained or the date of execution is altered making it impossible to ascertain.

7. INCOMPETENT
The person supposed to have executed the document is a minor, idiot, lunatic, not
competent to contract.

8. CONTRADICTION
In case of more than one representative of the deceased and when some of them admit
the execution and others deny the execution, it will be treated as refusal and registration
may be refused.

9.DEATH OF EITHER OF PARTY

The death of the person who is supposed to have executed is not conclusively proved
when the document is presented by his representatives or assignees

10.DEATH OF DONOR
The registering officer is not satisfied as to the fact of execution of Will presented after
the death of the testator or donor.

11.PRESCRIBE FEE NOT PAID

The prescribed fee, penalty under any other law in force for time being has not been
paid.

DUTIES AND POWERS OF REGISTERING OFFICER

INTRODUCTION
At the point when a documents is introduced for registration to the registration officer,
he endorse on every document presented before him, date, place of registration and
signature of the person presenting such document and gives receipt for such document
to person presenting the same.

RELEVANT PROVISIONS Section 52-62 Registration Act 1908.

MEANING OF REGISTERING OFFICER

Registering officer means an officer empowered under the Registration Act to register
document presented before him for the registration.

DUTIES OF THE REGISTERING OFFICER WHEN DOCUMENT

PRESENTED FOR THE REGISTRATION

The obligations and powers of registering officers as to the procedure on admitting a

document to registration are as following;
(I) TO ENDORSE DOCUMENTS On every document admitted to registration, other
than a copy of pronouncement or request, or a copy sent to an register officer, there
shall be endorsed from time to time the following particulars,

(A)SIGNATURE AND ADDITION

The signature and addition of every person or of representative, assign, or agent of any
such person admitting the execution of the document.
 (B) EXAMINATION OF PERSON The signature and expansion of each person
analyzed in reference to such documents.

(C) PAYMENT OF MONEY OR DELIVERY OF GOODS Any payment of cash or

conveyance of products AND any admission of receipt of consideration, in whole or in
part, made in the presence of the registering officer in reference to the execution of the
documents.

(III)CERTIFICATE OF REGISTRATION After such of the provisions (of sections

34, 35, 58, 59) as apply to any documents presented for registration have been
consented to, the register officer might support subsequently, a certificate containing the
word registered together with the number and page of the book in which the document
have been copied.
Such certificate should be acceptable for reason of proving that the document has been
duly registered in manner provided by this act.

(IV) ENDORSEMENT OF NOTE OF REFUSAL If any person admitting the

executing of a document refuses to endorse the same, the registering officer shall
nevertheless register it but shall at the same time endorse a note of such refusal.

(v) TO SIGN AND SEAL THE CERTIFICATE Such certificate should be signed,
fixed and dated by the registering officer, and then shall be admissible a document duly
and lawfully registered.

(vi) TO COPY ENDORSEMENT AND CERTIFICATE The endorsements and

certificate shall be copied in to the margin of the register book.

(VII) TO RETURN DOCUMENTS The registration of the documents should

immediately be deemed complete and the document shall than be returned to the person
presenting the same or to such other person as he has nominated in writing in that
behalf on the receipt given by the registering officer at the time of presenting the
document

(viii) Duty in case of strange Language When a document is in language unknown to

registering officer is presented for registration, the translation shall be prescribed in the
register of documents of the nature of the original and together with the copy shall be
filed in the registration office.
IX. Endorsement to be dated and signed by the registering officer The register
officer should append the date and his signature to all endorsement made under section
52 and 58 relating to the same document and made in his presence on the same day.