Legum Baccalaureus (LLB) -PAPER-II: LAW OF PROPERTY 3rd Semester Syllabus Short Notes
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PAPER-II
UNIT – 1
Meaning and concept of property
the legal rights to possess, use, and dispose of
assets and objects, whether tangible or intangible. It encompasses a wide range
of interests and assets, including real property (land and buildings), personal
property (movable assets like vehicles and furniture), intellectual property
(such as patents and copyrights), and more. The concept of property is
fundamental in the field of law as it governs ownership, possession, and the
transfer of rights and interests in various types of property.
Kinds of property
1.
Real
Property: This includes immovable assets such as land, buildings, and fixtures
attached to the land. Ownership of real property is typically governed by
property laws and may involve rights like ownership, possession, and use.
2.
Personal
Property: Personal property, also known as movable property, comprises assets
that can be moved, such as vehicles, furniture, money, and personal belongings.
Laws governing personal property are often found in contracts, torts, and other
areas of law.
3.
Intellectual
Property: This category includes intangible creations of the mind, such as
patents, copyrights, trademarks, and trade secrets. Intellectual property laws
protect the rights of creators and inventors in their intellectual creations.
4.
Chattels:
Chattels are tangible, movable personal property, such as household goods,
machinery, and animals.
5.
Corporeal
and Incorporeal Property: Corporeal property refers to tangible assets, while
incorporeal property includes intangible rights and interests like intellectual
property.
Transfer of property
The transfer of property involves the legal process of
moving property rights from one party to another. This can be done through
various means, including sale, gift, lease, or inheritance. The Transfer of
Property Act, 1882 in India governs the transfer of immovable property. It
outlines the conditions and legal requirements for the valid transfer of
property.
Key aspects of the Transfer of Property Act include
the definition of transferable property, the concept of actionable claims,
rules related to the rights and liabilities of parties involved in the
transfer, and the principles governing mortgages, leases, and gifts.
The Act also covers essential topics such as
conditions precedent, contingent interests, easements, and the doctrine of lis
pendens,
Transferable and non-transferable property
Transferable property, also known as "property" under the Transfer
of Property Act, 1882, refers to property that can be legally transferred from
one person to another. This typically includes immovable property (land and
buildings) and certain movable property (such as tangible goods). Immovable
property can be transferred through processes like sale, gift, lease, or
mortgage. Movable property can also be transferred, but certain items may be
subject to restrictions, such as items restricted from transfer due to specific
laws or contracts.
Non-transferable property refers to property or interests that cannot
be legally transferred, such as personal rights, certain government properties,
or property that is the subject of a legal prohibition against transfer.
Who can transfer
The Transfer of Property Act specifies that only a
person who is competent to contract can transfer property. This typically
includes individuals of sound mind, corporations, and entities capable of
entering into contracts. Minors and individuals with unsound minds may have
limited capacity to transfer property, and their transactions may be subject to
legal scrutiny.
Operation of transfer
The operation of transfer involves the legal process
through which property rights are moved from one person to another. This
typically includes the following elements:
·
Offer
and Acceptance: The transferor (the person transferring the property) makes an
offer to transfer the property, and the transferee (the recipient) accepts the
offer. This acceptance can be explicit or implied, depending on the
circumstances.
·
Intention
to Transfer: Both parties must have the clear intention to transfer the
property rights. This intention is an essential element in the operation of a
transfer.
·
Delivery
and Acceptance: In some cases, physical delivery of the property may be
required, especially for movable property. For immovable property, a proper
deed of transfer is often used.
·
Registration:
Depending on the type of property and local laws, the transfer may need to be
registered with the appropriate government authority.
Mode of transfer
The Transfer of Property Act provides several modes of
transfer, which include:
·
Sale:
The most common mode, where property is transferred in exchange for a price.
·
Gift:
Transferring property without consideration, typically involving a clear
intention to make a gift.
·
Lease:
Granting a right to use the property for a specific period in exchange for
rent.
·
Mortgage:
Providing security for a loan by transferring an interest in property to the
lender.
·
Exchange:
Property is transferred in exchange for another property.
·
Partition:
Division of joint property among co-owners.
·
Will:
Transferring property through a legal will, which becomes effective upon the
death of the testator.
The specific mode of transfer chosen depends on the
nature of the property and the intentions of the parties involved.
Conditional transfer
Sec 25 of Transfer of Property (TP) Act,1882 - A conditional transfer refers to the transfer of
property with certain conditions attached to it. These conditions can be precedent (conditions that
must be fulfilled before the transfer takes effect) or subsequent (conditions
that, if breached, can result in the transfer being revoked). The Transfer of
Property Act, 1882, contains provisions for conditional transfers, specifying
the legal requirements and consequences of such conditions.
For any kind of a condition transfer to be valid, the
condition that is imposed should not be:
-
Prohibited
by law,
-
Should
not be an act that involves fraudulent acts,
-
Should
not be any act that impossible should not be any act that is impossible,
-
Should
not be an act that is termed as violative of public policy,
-
Should
not be immoral,
-
Any
act that incurs any harm to any person or his property.
For example: X transfers a property ‘B’ to Y stating that he shall
murder Z as a condition for the transfer. such transfer is void as the
condition is prohibited by law.
Case law: Wilkinson Vs. Wilkinson
In this case the condition where one party was required
to desert her husband for the transfer to go through, this was held by the
court as invalid as it was against public policy.
Void and unlawful conditions
Void Conditions: Conditions that are impossible to perform or contrary
to law or public policy are considered void and unenforceable. The Transfer of
Property Act prohibits conditions that are illegal, immoral, or against public
policy. An example of a void condition is a condition requiring a person to
commit a crime.
Unlawful Conditions: Conditions that are not necessarily void but are
contrary to law or public policy are considered unlawful. While such conditions
may not automatically make the transfer void, they can be challenged in court.
For example, a condition that encourages an illegal act may be considered
unlawful.
Condition precedent and condition subsequent
Condition Precedent: A condition precedent is a condition that must be
fulfilled before the transfer of property takes effect. In other words, the
transfer will only occur if the specified condition is met. If the condition is
not satisfied, the transfer does not take place.
Condition Subsequent: A condition subsequent is a condition that, if
violated or breached, can result in the revocation of the transfer. In this
case, the transfer initially takes effect, but it may be canceled if the condition
is not met or is violated later.
Vested and contingent interest
Vested Interest: section 19 of the
transfer of property act, 1882 - A vested interest is an interest which
is created in favor of the person where time is not specified or condition of
the happening of a specified certain event. The person having the vested
interest does not get the possession of that property but has the expectancy to
receive it upon happening of a specified certain event.
For example: X professes to transfer the property ‘O’ to Y when he
attains the age of 20. There is a Vested interest with Y for the property ‘O’.
Contingent Interest: section 21 of the
transfer of property act, 1882 states about contingent interest. It is
an interest which is created in favor of a person on a condition of the
happening of a specified uncertain event. It is entirely dependent on the
condition imposed on the transfer.
For example: A agrees to transfer the property ‘X’ to B on the
condition that he shall secure 90% in his examination. This condition is
uncertain and the happening of the event or not happening is in doubt and
therefore B here acquires a contingent interest in the property ‘X’. He shall
get property only if he gets 90% and when the condition is fulfilled.
In the case of Leake Vs.
Robinson, the court held that whenever a condition involves a bequest
that is to be given ‘at’ a particular age or ‘upon attaining’ a particular age
or ‘after’ attending this particular age, then it can be derived that the
transfer involves a contingent interest.
Transfer to unborn persons – Sec 13 of TPA
Allows for property to be transferred to unborn
persons. However, certain conditions and limitations apply. The Act specifies
that property can be transferred to a person who is not in existence at the
time of the transfer but is expected to be born. This is typically done through
a valid legal instrument like a will or a trust. The interest of the unborn
person may be vested or contingent based on the terms of the transfer. It is a
cardinal principle of property law that every property will have an owner.
Section 13 of the TPA,1882 provides that the property can be transferred to an
unborn child but through a trust, not directly. Trust is not formed, the
property must be transferred in favor of a living person and then to the minor.
The unborn person must come into “existence” before the death of the last life
estate holder.
Essential Elements of section 13:
-
no
direct transfer.
-
prior
interest.
-
Absolute
Interest.
Illustration:
“A” owns a
property. He transfers it to “B” in trust for him and his intended wife successively
for their lives. After the death of the survivor, it is to be transferred to
the eldest son of the intended marriage for his life, and after his death, it
is to be transferred to A’s second son. The interest so created for the benefit
of the eldest son does not take effect because it does not extend to the whole of
A’s remaining interest in the property.
UNIT – 2
Doctrine of Election – Sec 35 of TPA,1882
The doctrine of election is stated in transfer of property act 1882 in section 35 and
within 180-190 of Indian succession act. Election means a choice between
two alternative or conflicting rights. The doctrine of election is a
general legal rule that requires the recipient to choose whether the heir wants
to own someone else’s property and decide whether to preserve the property or
accept his intentions.
Example: A promises to give B, 50 lakhs but only on one
condition that he will sell his house to C, now B here has to make the election
on what to do? If he takes A’s offer, he will have to give his house to C. On
the other hand, if he doesn’t, he would not get 50 lakhs also hence he has to
make an election on what to choose.
Covenants
covenants are legally binding promises or agreements
made by the parties involved in a property transaction. These promises can
relate to various aspects of property, including use, maintenance, or
restrictions. For example, in a real estate transaction, covenants might
include agreements on land use, maintenance of the property, or restrictions on
certain activities. The breach of these covenants can lead to legal remedies
and enforcement actions.
Transfer by ostensible owner
The concept of "transfer by ostensible
owner" refers to situations where a person who appears to be the owner of
a property, but who may not have actual legal ownership, transfers the property
to a third party. The law allows the transferee (the recipient of the property)
to acquire a valid title if they receive the property in good faith and without
notice of the real owner's rights. This concept is based on the principle of
estoppel and is governed by the Transfer of Property Act, 1882.
Doctrine of Feeding the Grant by Estoppels
The Doctrine of Feeding the Grant by Estoppels is a legal
principle in property law that means that an estoppel (a legal bar or
prohibition) created by a deed can also operate as a grant. In other words,
when a person is estopped from denying a certain fact or claim due to a deed
(such as accepting a benefit under a deed), that estoppel can be treated as if
it were a grant, and the rights created by the estoppel can be enforced in
favor of the person who relies on it.
Doctrine of Lis Pen dens
The Doctrine of Lis Pendens, often referred to as the
doctrine of pending litigation. According to this doctrine, when there is
a pending legal action or suit concerning a particular property, any transfer
of that property by the parties involved in the litigation may be subject to
challenge or may not be recognized in the court of justice. Mentioned in
section 52 of TP act, 1882. In essence, it
means that a third party who acquires the property during the course of the
litigation may be bound by the outcome of the lawsuit. This doctrine aims to
maintain the status quo of the property during litigation and prevent the
circumvention of legal proceedings through property transfers.
Fraudulent Transfer
Sec 53 of TP Act,1882 – Fraudulent (Sec 25 of IPC) transfer in general parlance,
therefore, refer to transfer which are made with an intention to defraud.
Thus, a fraudulent transfer arises in a creditor debtor relationship. In the
fraudulent transfer, the property is put out of reach of the creditor so that
the creditor is delayed from satisfying his debt.
For Example: When “A” transfers his property to “B” without giving
him his ownership of the property with the intention to keep his assets out of
reach of his creditors, such a transfer is called fraudulent transfer.
Essentials of fraudulent transfer:
1.
Transfer
of the property done by the transferor.
2.
It
should be immobile property.
3.
The
transfer is done without consideration.
4.
The
transfer is done with the intention to defraud a subsequent transferee and with
intention to defeat or delay his creditors.
5.
Such
transfer is voidable at the option of the subsequent transferee.
Exceptions of fraudulent transfer are:
1.
Acted
in good faith, and
2.
The
transfer was for consideration.
Case law: Kanchanbai Vs. Moti Chand,
In this case, the court observed that the phrase
creditors would also include a single creditor, the clause would be attracted
even if a single creditor was defrauded or intended to defraud only a single
creditor. Here the transfer was made to fail and delay the creditor’s claim.
therefore, section 23 would be applicable.
Doctrine of Part-performance – Sec 53-A of TPA
Doctrine of part performance is an equitable doctrine
which allows a person who has partly performed an oral contract to have it
specifically performed or to sue for damages even though legislation would
usually render the contract and unenforceable unless evidenced by writing.
It is settled law that section 53-A of the TPA confers
no right on a party who was not willing to perform his part of the contract. A
transferee has to prove that he was honestly ready and willing to perform his
part under the contract.
Example: In the case of Mason Vs.
Clarke there was an oral agreement for hunting rights. Clarke (the lessee)
tried to prevent Manson (the hunter) from exercising this right by citing the
lack of written agreement. The court held that Manson’s hunting conducted to
date constituted acts of part performance. He had acquired a relevant interest
in the land, and had legal standing against Clarke who had tried to prevent these
rights from being exercised.
UNIT - 3
Sale – Sec 54 of TPA, 1882
A sale, in the context of property law, is a transfer
of property in exchange for a price. It is a legally binding agreement where
one party (the seller) agrees to transfer the ownership of property to another
party (the buyer) in return for a consideration (usually money). Sales can
involve various types of property, including real property (land and buildings)
and personal property (movable assets). The essential features of a sale, the
mode of sale, and the rights and liabilities of parties involved are crucial
aspects of this transaction.
Essential features
The essential features of a sale typically include:
1.
Transfer
of Ownership: In a sale, ownership of the property is transferred from the
seller to the buyer. The buyer becomes the legal owner of the property.
2. Consideration: There must be a consideration,
typically in the form of money, given by the buyer to the seller in exchange
for the property. Consideration is a fundamental element of a valid sale.
3. Agreement: A valid agreement or contract for sale is
necessary, outlining the terms and conditions of the sale, such as the
description of the property, the price, and any other relevant terms.
4.
Intention
to Transfer: Both parties must have the clear intention to transfer and acquire
the property. This intention is a key element in the sale transaction.
Mode of Sale
The mode of sale refers to how the sale is conducted
and the legal requirements involved in the process. The mode of sale can vary
depending on the type of property and local laws. Common modes of sale include:
·
Registered
Sale Deed: For immovable property, a registered sale deed is often required to
complete the transfer. This deed must be executed and registered with the
appropriate government authority.
·
Bill
of Sale: For personal property, a bill of sale is commonly used. It is a
document that outlines the transfer of ownership and the consideration paid.
·
Auction:
In some cases, property may be sold through public auctions, where interested
buyers bid on the property.
·
Online
Sales: With advancements in technology, property sales may also occur through
online platforms or auctions.
Rights and liabilities of parties.
The rights and liabilities of parties in a sale
include:
·
Seller's
Rights: The seller has the right to receive the agreed-upon consideration and
transfer the property's ownership to the buyer. The seller also has the right
to insist on the buyer's compliance with the terms of the sale.
·
Buyer's
Rights: The buyer has the right to obtain ownership of the property upon
payment of the agreed-upon price. The buyer can also enforce any warranties or
representations made by the seller.
·
Seller's
Liabilities: The seller is typically liable for delivering the property in the
agreed condition, free from any encumbrances or defects not disclosed. The
seller may be liable for any misrepresentations or breaches of contract.
·
Buyer's
Liabilities: The buyer is liable for paying the agreed-upon price, taking
possession of the property, and complying with any other contractual
obligations.
Mortgage
Mentioned in Sec 58 of TP
Act, 1882 - A mortgage is a legal arrangement in which a property
owner (mortgagor) offers their property as security for a loan or debt to
another party (mortgagee). This arrangement allows the mortgagee to take
possession of the property or sell it if the mortgagor fails to repay the loan
as agreed. Mortgages are commonly used in real estate transactions,
allowing individuals and businesses to secure loans for property purchases.
Kinds of Mortgages
They are Mentioned in Sec
58 of TP Act, 1882. The most common types are 30-year and 15-year fixed
rate mortgages. Some mortgages terms are as short as five years while others
can run for 40 years or longer.
1.
Simple
Mortgage: In a simple
mortgage, the mortgagor provides the property as security for the loan, but
there is no transfer of ownership. If the mortgagor defaults on the loan, the
mortgagee can sell the property to recover the debt.
2.
Mortgage
by Conditional Sale:
In this type of mortgage, the sale of the property is conditional upon the
repayment of the loan. If the mortgagor fails to repay the loan, the
transaction becomes an absolute sale.
3.
Usufructuary
Mortgage:
Here, the mortgagor transfers possession of the property to the mortgagee, who
receives the rents and profits as interest or part of the loan. When the loan
is repaid, possession is returned to the mortgagor.
4.
English
Mortgage:
An English mortgage is a type of mortgage where the mortgagor transfers the
legal title of the property to the mortgagee but retains the right to redeem
the property upon repayment of the loan.
5.
Equitable
Mortgage: An
equitable mortgage is created without a formal mortgage deed but is based on an
agreement between the parties. It is recognized by the court as a mortgage.
Rights and liabilities of mortgagor and
mortgagee
Right of mortgagor:
1.
Right
to Redemption [sec 60]
2.
Obligation
to transfer it to third party instead of pledging [sec
60(A)]
3.
Right
to inspection and production of document [Sec 60(B)]
4.
Right
to accession [Sec 63]
5.
Right
to improvements [Sec 63(A)]
6.
Right
to renewed Lease [Sec 64]
7.
Right
to grant lease [Sec 65(A)]
Duties/Liabilities of Mortgagor:
1.
Duty
to avoid waste [Sec 66]
2.
Duty
to indemnify for defective title.
3.
Duty
to compensate mortgagee.
4.
Duty
to direct rent of a lease to mortgagee.
Rights of Mortgagee:
1.
Selling
rights.
2.
Shortage
of money case.
3.
Usufructuary
case.
4.
Refusal
of Debt.
5.
Adjustment
of payment.
6.
Joint
suit.
7.
Sale
of private property.
Duties/Liabilities of Mortgagee:
1.
He
cannot cause any damage to the property.
2.
No
changes can be done in the property.
3.
Property
should be insured.
4.
Property
should be protected.
5.
Rent
of the property should be collected.
6.
Government
revenue will have to be paid.
7.
Property
should be kept clear of all dues.
Marshalling and Contribution
Marshalling: Marshalling is a legal doctrine that allows a junior mortgagee to look
to the properties of the mortgagor in a specific order to satisfy their claim
when there are multiple mortgages on different properties. The doctrine ensures
that the junior mortgagee is not disadvantaged by the senior mortgagee.
Contribution: Contribution comes into play when there are multiple mortgagors or
co-mortgagors. If one of the co-mortgagors pays off a portion of the mortgage
debt, they may have the right to claim a contribution from the other
co-mortgagors to share the repayment burden equally.
Charges.
Section 100 of TPA, 1882 - defines charge as, “Where immovable property of one
person is by an act of parties or operation of law made security for the
payment of money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property.
Essentials of valid charge:
1.
Immovable
property.
2.
Does
not amount to a mortgage.
3.
The
charge created by an act of parties.
4.
Charges
arising by operation of law.
Exceptions:
Sec 100 provides two exceptions under which no charge
can be created. They are as follows:
1.
The
charge which is created on an immovable property which is also a trust property
in favor of a trustee for incurring expenses in the execution of his trust i.e.
maintaining the trust property.
2.
A
Property upon which the charge had been created is bought by a person in
consideration without having any notice of the said charge, then charge cannot
be enforced against him.
Types of charge:
1.
Fixed
charge – This charge is created over ascertainable assets i.e., land, building,
machinery, goodwill, copyright etc.
2.
Floating
charge – The charge is created over unascertainable assets i.e., assets, vehicles,
debtors, etc.
Registration of charge:
Under section 77 of the Companies Act, 2013 every company creating a charge shall register the
particulars of charge signed by the company and its charge-holder together with
the instruments created.
UNIT – 4
Lease
The Term “lease” is
defined under section 105 of the transfer of
property act 1882. A lease is a legal agreement between a property
owner (lessor) and a tenant (lessee), granting the lessee the right to
occupy and use the lessor's property for a specified period in exchange for
payment, typically in the form of rent or lumpsum payment. Leases
are common in both residential and commercial real estate transactions and
establish the terms and conditions governing the use of the property.
Example:
A leases his house to B for 8 months for periodic payment of Rs. 10,000/- per month.
Essential features
Elements of a
valid lease:
1.
Competency of lessor and lessee.
2.
Subject matter. (immovable
property only)
3.
Consideration.
4.
Duration – a lease for an immovable
property should be made for 11 months. In case the duration exceeds a year i.e.,
12 months or more than a lease agreement can only be made by a registered
instrument as per section 107 of the transfer of
property act 1882.
5.
Delivery and acceptance.
Kinds of leases
1. Fixed-Term
Lease: A lease with a specified start and end date. It expires at the end of
the term unless renewed.
2.
Periodic Lease: A lease that automatically
renews for successive periods (e.g., monthly or yearly) until either party
gives notice to terminate.
3.
Tenancy-at-Will: A lease without a fixed
term that continues as long as both parties agree. It can be terminated by
either party with minimal notice.
4.
Tenancy-at-Sufferance: This occurs when a
tenant remains in possession of the property after the lease has expired
without the lessor's consent.
5. Ground
Lease: A lease of land where the lessee constructs buildings or improvements,
often for a long term.
Rights and liabilities of lessor and lessee
They are mentioned in sec108 of the TP Act, 1882.
Rights of a
lessor:
1.
Right to accretions – if
during the tenancy period or during the duration of the tenancy any further accretion,
accumulation or addition is made in the property then the lessor is entitled to
such property.
2.
Right to collect rent.
Liabilities of a
lessor:
1.
Duty to disclosure (Latent defect or
Apparent defect)
2.
To give possession
3.
Covenant for quiet enjoyment
Rights of a
lessee:
1.
To charge for repair.
2.
Right to remove fixtures.
3.
Right to assign his interest.
4.
Right to have benefits of crops.
Liabilities of Lessee:
1.
Duty to disclose material facts.
2.
Duty to pay rent.
3.
Duty to maintain the property.
4.
Duty to give notice.
5.
Duty to use the property in a reasonable
manner.
6.
Duty not to erect any permanent structure.
7.
Duty to restore possession.
Termination of lease
Leases can be terminated
in eight different ways, that are:
1. Expiry: A
lease is terminated after the expiry of the specified time period.
2. Length
of Lease until event: if the length of the
lease is until the happening of some event and when that event happens the
lease is terminated.
3. Lessor’s
interest untill event: if the lessor’s interest in
the property is to terminate the lease on the happening of some event and when
the event happens the lease is Terminated.
4. Surrender: When
the Lessee surrenders by implying.
5. Notice:
Either party may terminate the lease by providing proper notice as specified in
the lease agreement.
6. Breach:
A lease may be terminated if one party (lessor or lessee) breaches the terms of
the lease.
7. Mutual
Agreement: When both the lessor and lessee mutually
agreed to end the contract.
8. Legal
Proceedings: Termination may occur through legal
proceedings if a party seeks court intervention to enforce lease terms.
Forfeiture
Forfeiture means bringing
a lease to an end. It is a powerful tool in the hands of landlords.
There are two ways for a
landlord to forfeit a least.
-
Physically taking back possession of the
premises (often described as ‘peaceable re-entry’) and
-
Issuing and serving proceedings.
For example:
if a lessee fails to pay rent or breaches other lease terms, the lessor may
seek forfeiture, leading to the termination of the lease and the loss of
the lessee's right to occupy the property.
Exchange
An exchange is a property
transaction where two or more parties transfer ownership of properties to one
another. Unlike a sale, where one party acquires property in exchange for
money, an exchange involves a swap of properties. Each party receives property
in return for giving up their ownership of another property. The properties
involved in the exchange must have mutual value, and the transaction is
typically governed by an exchange deed or agreement.
Gifts
A gift, in the context of
property law, involves the voluntary transfer of property or assets from one
party (the donor or donor) to another (the donee) without the expectation of
receiving anything in return. A gift is often a one-sided transaction driven by
the donor's intention to benefit the donee. Gifts may be made during one's
lifetime (inter vivos gifts) or through a will after one's death (testamentary
gifts).
Essential elements of a gift
1.
Parties to the gift. (Competency,
gift to minor or insane through guardian)
2.
Transfer of ownership.
3.
Subject matter. (movable
or immovable property)
4.
Without consideration.
5.
Voluntarily.
6.
Acceptance of gift.
Different types of gifts
There are several types
of gifts, including:
1. Gift
Inter Vivos: This refers to a gift made during the
lifetime of the donor. It typically involves the immediate transfer of
ownership and possession of the gifted property.
2. Gift
Causa Mortis: This is a gift made in anticipation of
the donor's imminent death. It is conditional and becomes effective only if the
donor dies from the anticipated cause.
Often times, a person who
is on his or her deathbed will wish to make gifts to family numbers. A Deathbed
gift, or donation mortis causa, is an alternative way in which a person can
dispose of their estate, as opposed to valid will.
In order to death bed to
be valid, (the donation mortis causa) must satisfy the following three
conditions:
-
The gift must be made in contemplation of
the donor’s impending death.
-
The gift must be conditional upon death.
-
The donor must transfer (or deliver) the
gift to the donee.
Sec 129 of TP Act,1882 – Saving of donations
mortis causa.
3. Conditional
Gift: A gift made with specific conditions that
must be met for the gift to become valid. If the conditions are not met, the
gift may fail.
4. Gift
of Movable and Immovable Property: Gifts can involve
both movable property (personal assets) and immovable property (real estate).
The legal requirements for each type of property may differ.
5. Gift
Deed: A formal legal document used to document
and register the transfer of a gift. In some jurisdictions, gift deeds must be
registered to be legally valid.
Onerous Gift
Sec
127 of TP Act,1882 –
Onerous gift refers to a gift that is subjected to conditions. These conditions
are imposed on the recipient of the gift. Onerous gift is that when one person
transfer several gifts i.e., more than one gift to another in a single transfer,
out of these gifts one is not burdened by obligation but other is burdened with
obligation, so here donee has to accept in full, he cannot accept one which is
beneficial and reject burdened with obligations.
Example: “A” transfer two gift X and
Y to “B” in a single transfer. X is a share of prosperous company and Y is
share of sinking company. B refuses to accept gift Y. So B cannot take X gift
also.
Registration of Gifts
The registration of gifts
is governed by specific laws and regulations in different jurisdictions. In
many places, it is mandatory to register gift deeds involving immovable
property to make them
legally valid.
Registration typically involves recording the details of the gift and the
transfer of ownership with the appropriate government authority. Registration
provides a legal record of the gift and helps prevent disputes.
Transfer of Actionable Claims.
Actionable claims refer
to claims or rights that can be the subject of a legal action. The Transfer of
Property Act, 1882 in India includes provisions for the transfer of actionable
claims. These provisions allow for the assignment and transfer of certain
actionable claims, such as debts, to other parties. The act specifies the legal
requirements and procedures for transferring actionable claims, and such
transfers are often executed through written instruments.
UNIT - 5
Definition of easement
Sec 4 of
The Indian Easements Act, 1882 - An easement is a legal right
that allows one party (the dominant owner) to use or access the land of another
party (the servient owner - sec 9 of
IEA,1882) for a specific purpose.
Easements provide a limited property interest and can include rights like the
right of way, the right to access light and air, or the right to use a shared
driveway. Easements are usually established through written agreements,
prescription (continuous use over time), or necessity, and they do not involve
ownership of the property.
Salmond,
defines easement as “Easement is that legal servient which can be expressed on
some other piece of land specifically for the beneficial enjoyment of one’s own
land.” Right of easement is basically a form of privilege.
Examples of right of easement:
-
Right of way.
-
Right to discharge rainwater.
Kinds of
Easements:
1. Continuous
& Discontinuous. Sec 5 of IEA, 1882.
2. Positive
and negative.
3. Apparent
and non-apparent. Sec 5 of IEA,
1882.
4. Conditional
Easement. (Temporary & Permanent)
Distinction between Lease and License
Lease: A
lease is a legal contract that grants exclusive possession and control of real
property to a tenant for a specified period. It establishes a landlord-tenant
relationship, and the lessee has a right to exclusive possession and use of the
property for the lease term. The lessee typically pays rent and has certain
legal protections during the lease
License: A
license is a personal right granted to a person to do something upon immobile
property of the grantor and does not amount to the creation of interest in the
property itself. It is purely A permissive right and is personal to the grantee.
In India, the Indian easements act, 1882 provides for
lower relating to license and property law, section
52 of Indian Easement ‘s act, 1882 defines license as under:
“Where one person grants to another, or to a definite
number of other persons, a right to do or continue to do, in or upon immovable
property of the grantor, and such right does not amount to any easement or an
interest in the property, that right is called license.”
Granting of
license: the provisions relating to granting of
license in India are section 53 and 54 of the
Indian easements act 1882.
|
Aspect |
Lease |
License |
|
Nature of Relationship |
Creates a landlord-tenant
relationship. |
Does not create a landlord-tenant
relationship. |
|
Possession |
Grants exclusive possession and
control to the tenant. |
Does not grant exclusive
possession; revocable. |
|
Duration |
Typically for a specified lease
term. |
Can be more temporary and is
often for a specific purpose. |
|
Revocability |
Generally irrevocable during the
lease term. |
Revocable by the licensor at any
time. |
|
Purpose |
Primarily for habitation or
business use. |
Often for a specific and limited
purpose. |
|
Rent |
Involves the payment of rent by
the lessee to the lessor. |
Usually no rent payment, or
nominal fees may be involved. |
|
Legal Protections |
Lessee has legal protections
during the lease term. |
Limited legal protections; no
statutory rights similar to a lessee. |
Dominant and Servant Tenements.
Dominant Tenement:
The dominant tenement is the property that benefits from an easement. It is the
land that enjoys the right to use the servient tenement for a specific purpose,
such as a right of way or access to light and air.
Servient Tenement:
The servient tenement is the property over which an easement runs. It is the
land subject to the rights of the dominant tenement. The servient owner must
allow the dominant owner to exercise their easement rights without
interference.
Acquisition of property through testamentary succession
Property can be acquired
through testamentary succession, which involves the transfer of property upon
the death of the owner based on their will or last testament. Key points
include:
·
Testator: The person creating the will and
specifying the distribution of their property after their death.
·
Devisee: The individual named in the will
to receive specific property or assets.
·
Executor: The person appointed to carry
out the terms of the will and ensure the distribution of property according to
the testator's wishes.
·
Probate: The legal process through which
the court validates the will and oversees the distribution of the testator's
assets.
Property
acquired through testamentary succession is distributed in accordance with the
provisions of the will, and it may involve various types of assets, including
real estate, personal property, and financial assets. The legal requirements
and procedures for testamentary succession may vary by jurisdiction.
Will
A will, also known as a
last will and testament, is a legal document that allows an individual (the
testator) to specify how their assets and property should be distributed after
their death. It outlines the testator's wishes regarding the beneficiaries
(legatees), the nature of bequests, and the appointment of an executor to
manage the estate. A will is a critical instrument for estate planning and
ensures that the testator's wishes are carried out.
Codicil
A codicil is a
legal document that is used to amend or modify an existing will.
It is an addendum to the original will and is used when the testator wishes to
make changes, additions, or clarifications to the provisions in the will
without creating an entirely new will. A codicil must comply with the same
legal formalities required for a will and is typically signed, dated, and
witnessed.
Capacity to execute Will
For a will to be legally
valid, the testator must have the necessary capacity to execute a will. This
includes:
·
Testamentary Capacity: The testator must
be of sound mind and understand the nature and consequences of creating a will.
They should be capable of making rational decisions about the distribution of
their property.
·
Age of Majority: In most jurisdictions,
the testator must have reached the age of majority, which is typically 18 years
old, to create a will.
·
Free Will: The testator must create the
will of their own free will and without undue influence, coercion, or fraud.
Nature of bequests
bequests refer to the
specific instructions provided in a will for the distribution of property and
assets after the testator's death. Bequests can take various forms, including:
·
Specific Bequests: These involve the gift
of particular, identified properties, such as real estate, valuable items, or a
specific sum of money.
·
General Bequests: These entail the
distribution of a specific amount of money or a percentage of the estate
without specifying particular assets.
·
Residuary Bequests: The residuary estate
comprises any remaining assets not covered by specific or general bequests.
Residuary bequests designate who will inherit these unallocated assets.
·
Conditional Bequests: These bequests are
subject to certain conditions or requirements. Beneficiaries may receive their
gift only if they meet these specific conditions.
·
Charitable Bequests: Testators can leave
bequests to charitable organizations or nonprofit entities to support
philanthropic causes.
·
Life Estate Bequests: A life estate
bequest allows a beneficiary to use and enjoy a property or asset during their
lifetime, with ownership passing to another beneficiary upon the life tenant's
death.
Executors of Will
the executor or executrix
is an individual appointed by the testator (the person creating the will) to
manage the distribution of property and assets as per the will's provisions
after the testator's death. The executor's duties typically include:
·
Collecting and safeguarding the assets of
the estate.
·
Paying off the deceased's debts, including
loans and taxes.
·
Distributing the property and assets to
the designated beneficiaries in accordance with the will.
·
Ensuring that legal requirements are met,
including the probate process.
·
Handling disputes or challenges that may
arise during the estate administration.
·
Maintaining records and providing an
account of the estate's administration to beneficiaries.
Rights and Obligations of Legatees.
legatees are the beneficiaries named in the will who
are entitled to receive bequests or inheritances according to the provisions of
the will. Their rights and obligations typically include:
Rights:
·
Right
to Inheritance: Legatees have a legal right to inherit the property and assets
designated for them in the will, subject to the terms and conditions specified.
·
Right
to Information: Legatees are entitled to receive information about the
administration of the estate, including updates on the progress of asset
distribution.
·
Right
to Challenge: If legatees believe there are legal issues or concerns regarding
the will's validity or the estate administration, they may have the right to
challenge these matters.
Obligations:
·
Compliance
with Will Provisions: Legatees are generally obligated to adhere to the terms
and conditions set forth in the will. This includes complying with any specific
requirements or conditions for receiving their bequests.
·
Cooperation
with the Executor: Legatees are expected to cooperate with the executor in the
administration of the estate, which may involve providing information and
documentation when requested.
·
Timely
Communication: Legatees should communicate promptly with the executor and other
beneficiaries to facilitate the efficient administration of the estate.
------------------------------ XXX-----------------------------------
DOWNLOAD SYLLABUS SHORT NOTES PDF of LAW OF PROPERTY:
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P-II: Public International Law
P-III: Interpretation of Statutes
P-V: Intellectual Property Law
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