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prop law Flashcards

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1
Q

no man’s property

A

res nullus

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2
Q

types of property

A

corporeal and incorporeal
corporeal- movable immovable
incorporeal- right in propria, right in re aliena

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3
Q

modes of acquiring ownership

A

possession
prescription
agreement
inheritance

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4
Q

the two elements of possession

A

physical- corpus possessionis
mental- animus possidendi

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5
Q

modes of acquiring ownership

A

by taking
by delivery
by operation of law

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6
Q

immovable property definitions

A

sec 3 TPA
sec 2(6) the registration act
sec 3(26) general clauses act

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7
Q

attached to the each means

A

rooted to the earth
imbedded in the earth
attached to what is so imbedded

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8
Q

Marshall V Green

A

Sale of trees to be cut and taken away. Held: sale was not for Immovable Property, if the intention of the parties is that the trees should have further nutriment from the land, then it is Immovable Property otherwise not.

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9
Q

whatever is planted in the earth becomes part of the earth

A

quid planteur solo solo cedit

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10
Q

rules to check if it is a fixture

A

degree of annexation
purpose of annexation

mode of attachment and consequences of detachment
object of intention of attachment
by whom attached

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11
Q

if attachment is allowed to remain on the land of the owner and he derived a benefit from it, the tenant deserves compensation

A

thakoor chunder v ramdhone

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12
Q

fishery rights in the Chilka lake. The Court held that the Chilka lake is an “Immovable property”

A

Anand behera v state of orrisa

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13
Q

intention of the parties regarding the attachment of an item to the property is crucial in determining whether it is a fixture or not.

A

Leigh v. Taylor
piano case

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14
Q

the court established that even though an item may be attached to the property, if it can be easily removed without causing substantial damage to the property, it may not be considered a fixture.

A

Holland v. Hodgson

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15
Q

the court established the principle that whether an object is a fixture or not depends on the degree of annexation to the land, the purpose of annexation, and the object’s adaptation to the land.

A

Elwes v. Mawe

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16
Q

This case involved the removal of a wooden chimney, and the court held that an object’s method of attachment, purpose of annexation, and the object’s adaptation to the land are relevant factors in determining whether it is a fixture.

A

Jones v. Gooday

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17
Q

BENEFIT TO ARISE OUT OF LAND

A

profit a prendre
legal term that refers to a right, typically held by one person, to enter onto another person’s land and extract resources or profits from it

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18
Q

Examples of profits a prendre

A

Right to Take Timber: This might involve the right to enter someone’s land and cut down trees for wood.

Right to Graze Livestock: It could involve the right to allow animals to graze on another person’s land.

Right to Fish: This might involve the right to fish in a river or pond located on someone else’s property.

Right to Hunt : It could involve the right to hunt animals on another person’s land.

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19
Q

the issue that arose was whether the transfer of land entailed transfer of trees planted on the land. The court held that a perusal of Section 3 of the Act shows that all things attached to the earth are included in the land

A

Suresh Chand v Kundan

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20
Q

Two fold test to determine whether a property is embedded in the earth or not

A

Degree of annexation:
Object of annexation:

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21
Q

Things attached to what is so embedded tests

A

Permanent attachment
Beneficial enjoyment

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22
Q

law of fixtures principles

A

Method of Attachment
Intent of the Parties
Adaptability to the Property

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23
Q

definition of transfer of property, case and section

A

Transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons; and “to transfer property” is to perform such act.
Pandey Oraon v Ram Chander Sahu
section 5 of the TPA

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24
Q

what may (not) be transferred?

A

chance of succession (spes successionis)
right to re entry
easementary rights
service inams
religious office
right to future maintenance
mere right to sue

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25
Q

spes successionis

A

“Spes successionis” is a legal term originating from Roman law that refers to the expectation or hope of succeeding to an inheritance or legacy upon the death of a person who is expected to bequeath property.
A person can only transfer what he owns.

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26
Q

Right of Re-entry

A

right to resume the possession of the land which would have been given to some other person for a certain period of time. And the cases of re-entry are usually seen in the cases of leases, which would empower the lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease.

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27
Q

who is competent to transfer

A

section 7
competency to contract (should be on sound mind, completed 18 years of age, not disqualified by any law)
should be the owner of the property
if not owner must posses authority to sustainable in law to transfer the same

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28
Q

agent managing the property, not competent to sell where the duties extended only to collect the rent and manage the estate

A

BC Mondal v Indurekha Devi

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29
Q

oral transfer

A

sec 9

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30
Q

transfer for the favour of an unborn person

A

section 13

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31
Q

vested interest section

A

sec 19

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32
Q

contingent interest section

A

sec 21

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33
Q

kinds of transfer

A

(1) Sale,
(2) Mortgage,
(3) Lease
(4) Exchange
(5) Gift.

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34
Q

what is not a transfer of property

A

Partition
creation of charge
relinquishment
surrender
easement
will
Compromise
Family arrangement/settlement

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35
Q

Relinquishment:—It is an extinction of a right and therefore, there is nothing left to transfer.

A

Barati Lal V. Salik Ram

36
Q

The only right created in a charge is a right to payment out of the property subjected to charge, thus it is not a transfer

A

Gobind Chandra v. Dwarka Nath

37
Q

Doctrine of feeding empty grant by estoppel

A

section 43
A person who has no title or interest in an immovable property, cannot transfer that property. Transfer by such person is a transfer by unauthorised person. Section 43 of the Act provides the effect when such unauthorised person subsequently acquires interest in property transferred.

38
Q

For application of Doctrine of feeding empty grant by estoppel, requisites must be satisfied

A

There must be fraudulent or erroneous representation of ownership by the transferor.
Transfer must be by the wrong owner.
Transferee must act on that false representation, in good faith.
Transfer is for the consideration.
Transfer subsequently acquires some interest in that property which he professed to transfer.
The contract of transfer still subsists.

39
Q

Section 6(a) and Section 43 compared case law

A

Jamma Masjid v. K. Deviah

40
Q

rule against perpetuity

A

section 14

41
Q

If the rule against perpetuity would not been there then the great mischief would arise to a public from estates remaining forever for a long time inalienable form one hand to another hand.

A

Stanley V Leigh

42
Q

Exceptions for Rule Against Perpetuity

A

If the property is alienated and remote future interest is created for education, health, religion then this rule will not be applicable.

43
Q

what is vested interest

A

sec 19
Where, on a transfer of property, an interest therein is created in favour of a person

a) without specifying the time when it is to take effect,

b) or in terms specifying that it is to take effect forthwith

c) or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.

44
Q

Contingent interest explain

A

sec 21
an interest therein is created in favor of a person
to take effect only on the happening of a specified uncertain event,
or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.

45
Q

transfer by ostensible owner

A

section 41
if a transfer is made by an ostensible owner acting in good faith, and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised
provided that the transferee has taken reasonable care to ascertain that the transferor had power to make the transfer

46
Q

doctrine of part performance

A

section 53A
if two parties have an agreement of sale and the transferee partially performs his part of the duty and has taken possession of the property then the transferor cannot back out of the deal
does not matter if it hasn’t been registered yet, the transferee should have performed or is willing to perform his part of the contract

47
Q

definition and section of sale

A

sec 54
Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

48
Q

how is sale made

A

section 31
- tangible immoveable property of Rs. 100 and above or reversion of other tangible thing, can be only by a registered amount
- tangible immoveable property of less than rs. 100, may be made by registered instrument or by delivery of the property

49
Q

doctrine of holding out case law

A

ram coomar v MC Queen

50
Q

tests of ostensible ownership

A

source of purchase money
motive behind holding property in anothers name
possession of property
relationship of parties
custody of title deeds
previous and subsequent conduct or behaviour of parties

51
Q

property bought using stridhan

A

luchman v kallichuran

52
Q

doctrine of lis pendens

A

section 52
cannot alienate property when the said property is the subject matter of some pending litigation

53
Q

origin of lis pendens

A

Bellamy v Sabine

54
Q

lis pendens example case

A

koyalee v rajasthan district

55
Q

what is contract of sale + case law

A

a document created for creating the right to obtain another document called the sale deed, does not transfer any title or create an interest therefore it need not be registered
Jivatram v Bai Kailasgauri

56
Q

even a minor can be made a buyer provided the transfer is made by his guardian

A

Ulfat ral v Gauri Shankar

57
Q

liabilities of seller before completion of sale

A

55(1)(a)- reveal all material defects
55(1)(b)- production of title deeds for inspection
55(1)(c)- answer all relevant questions about the title or property
55(1)(d)- execute proper conveyance of the property
55(1)(e)- take reasonable care of the title and the property
55(1)(g)- pay all the charges unless the buyer purchased with encumbrances

58
Q

what are material defects

A

a defect of such nature that if it was known to the buyer his intention to enter into a sale might be affected
flight v booth

59
Q

rights of seller before completion of sale

A

55(4)(a)- entitle to collect rents and profits generated by the property till the ownership is transferred

60
Q

liabilities of the buyer before sale

A

55(5)(a)- disclosure of all facts known to the buyer that materially increase the value of the property
case law: summers v griffth
55(5)(b)- pay the price in accordance with the contract, free to deduct any encumbrances

61
Q

rights of the buyer before sale

A

55(6)(b)- refund of money paid on proper denial to accept delivery

62
Q

liabilities of seller after completing the sale

A

55(1)(f)- to give possession
55(2)- undertake that he holds the perfect title and is now transferring and without encumbrance
55(3)- to deliver title deeds in receipt of price

63
Q

rights of a seller after completion of sale

A

55(4)(b)- charges upon the property for the unpaid price- when property has been transferred before payment of full amount seller becomes entitled to a charge upon the property

64
Q

liabilities of buyer after sale

A

55(5)(c)- to bear the cost of any losses or damage to the property
55(5)(d)- to pay all the outgoing charges

65
Q

rights of the buyers after sale

A

55(6)(a)- any benefit arising from the property is now vested with the buyer

66
Q

mortgage section

A

section 58
definition sec 58(a)

67
Q

definition of mortgage

A

a mortgage is a transfer of interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or any engagement which may give rise to pecuniary liability

68
Q

essential characteristics of mortgage

A

must be transfer of interest
must be specific immoveable property intended to be mortgaged
must be made to secure payment of loan or performance of contract

69
Q

effect of failure of mortgagee to advance the amount undertaken

A

Once the mortgage agreement is signed and properly registered, the lender (mortgagee) officially owns an interest in your property, even if they haven’t given you the money yet. This means that the transaction moves beyond just being a promise, it’s like a transfer of ownership. So, if the lender doesn’t actually give you the money they promised in the mortgage agreement, it doesn’t cancel out the agreement or make it invalid. The lender still has rights to your property as outlined in the mortgage agreement.

70
Q

kinds of mortgage

A

Simple mortgage
mortgage by conditional sale
usufructuary mortgage
english mortgage
mortgage by deposit of title deeds
anomalous mortgage

71
Q

simple mortgage

A

58(b)
there is no actual delivery of property but there is a personal undertaking that the in case of failure to pay the mortgagee can use the property to pay the debt and return any unused money

72
Q

mortgage by conditional sale

A

58 (c)
it is an apparent sale with the condition that upon repayment of the amount owed he purchaser shall retransfer that property back

73
Q

usufructuary mortgage

A

58 (d)
the mortgagor hands over the physical property and the right to get rents and profits, and this is utilised to pay off the debt
there is no time limit fixed for this and the mortgagor retains ownership for this

74
Q

zuripeshgi lease

A

lease for a lump sum of money paid in advance v similar to usufructuary mortgage
diff is that in usufructuary a relationship between debtor and creditor exists, the mortgagee is allowed to retain property till debt is paid and sometimes possession can remain with the mortgagor, it is not so in the zuripeshgi lease

75
Q

English Mortgage

A

58(e)
transfers the property absolutely to the mortgagee subject to the proviso that he will retransfer it back upon payment of the mortgage money

76
Q

mortgage by deposit of title deeds

A

when a person in any of the towns of calcutta, madras or bombay or any other city that the state govt may provide by notification, delivers to a creditor or his agent the document for title of immoveable property
also known as equitable mortgage

77
Q

anomalous mortgage

A

anything which is not a simple mortgage, mortgage by conditional sale, usufructuary mortgage, english mortgage, mortgage by deposit of title deeds is called an anomalous mortgage

78
Q

modes of effecting a mortgage

A

section 59
by registered instrument
by delivery of possession
by deposit of title deeds

79
Q

what is lease plus definition section

A

section 105
lease is the transfer of interest in an immoveable property for a particular period of time without the transfer of ownership

80
Q

essentials of lease

A

parties must be competent to contract
lesser should be entitled to property and have absolute right over it
right of possession must be transferred but not ownership rights
consideration for lease may be via rent or premium
lessee has to accept lease agreement along with the time period and terms imposed
must always take place in a particular time period

81
Q

duration of lease in absence of lease agreement

A

106
can be ended by both parties by issues a notice to quit

82
Q

if lease is through oral agreement then provisions of 106 will apply

A

punjab national bank v Ganga Narain Kapur

83
Q

determination of lease

A

section 11

84
Q

easements definition

A

section 4
an easement is a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own

85
Q
A

Property Law (1 decks)

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