TRANSFER OF PROPERTY ACT-1882

Historical back ground:

Before the TPA came into force/ existence the transfer of immovable property,
in India, were governed by the English law and Equity Principles. Later, the High
courts of India suggested that there should be an other separate act for the
transfer of immovable property.

The TP.act was enforced on 1st july 1882 and it is composed of 8 chapters
and 137 sections.
1. Section 1- 4…………………………………………………………….……..Preliminary
2. Section 5- 53……………………………………………………………….…Transfer by act of parties
3. Section 54-57………………………………………………………………....Sale
4. Section 58-104…………………………………………………………..……Mortgage
5. Section 105-117………………………………………………………..…….Lease
6. Section 118-121…………………………………………………….……… .Exchange
7. Section 122-129…………………………………………………….……… .Gifts
8. Section 130-137…………………………………………………….……… .Actionable claims

The TOPA-1882 governs the transfers by the act of parties that is transactions
done by the living persons. Read with section 2(d) which says, Nothing in TOPA
shall affect the transfers either by operation of law or in the execution of decree
of courts.

Thus, the TP act does not deal with the transfer of property by the operation of
law from one person to an other person i.e by the death of real owner
(succession).

Therefore, the TOPA is NOT EXHAUSTIVE means not complete.

Any act is exhaustive or not exhaustive depends upon presence or absence of

the term CONSOLIDATE in the Preamble of the act. If the term consolidate is
present in the preamble then it will be considered as the complete act and if it
is not present the act will not be considered as Exhaustive nature.

Another reason behind its non-exhaustive nature is that the CH #02,

says TP.Act is not applicable over Muslim law where we have to deal
with Personal law.
PROPERTY AND ITS TYPES
Property means any thing to which any person may have legal title.
TYPES

Tangible (which can be touched) Intangible (cannot be

t
o
u
c
h
e
d
)
i) Movable
ii) Immovable
RIGHT TO PROPERTY = OWNERSHIP = ?
The concept of ownership emerged in Roman law and the Romans consider it as
full and exclusive power over a thing i.e Plena in re-potestos = In full
power.
Ownership can be defined in two different ways:
1) Jurisprudence
2) Legal
1) As per Jurisprudence:
The ownership of property consists of bundle of four rights (powers), given
below:
a) Right to possess
b) Right to use and enjoyment
c) Right to transfer
d) Right to destroy
Thus, according to jurisprudence one can only be the owner of property when
he possesses above four rights.
Latin Maxim: Ius utendi, fruendi, et abutendi res sua quatenus juris ratio
patitur.
Meaning: Right to use, To take fruits , To dispose freely with his item, to the
exclusion of every other person.
EXCEPTION:
One can have a right over a property and still not be the owner of property.
Real life example: A holds a house on lease. He has following two rights. (A=
Lessee)
a) Right to possess ✓
b) Right to use and enjoyment ✓
 c) Right to transfer
d) Right to destroy
It means one who possesses all four rights only then can be the owner of the
property. If yes then what about the person who gives his property on lease, the
lessor? Who losses bundle of rights but still remains the owner of the
property. The answer to this question is simple i.e one who possesses legal
title will be the owner of the property.
2) Legally : The person who holds the title of property is the owner of the
property. Title in legal language is a document which gives the owner evidence
of his hold over a property.

SECTION: 01
Short title, Commencement, Extent. This Act may be called the Transfer of
Property Act, 1882. It shall come into force on the first day of July. 1882. This
Act or any Part thereof may by notification in the official Gazette be extended to
the whole or any part of [a Province] by the Provincial Government].

And any [Provincial Government] may, from time to time, by notification in

the [official Gazette], exempt either retrospectively prospectively, and part of
the territories administered by such [Provincial Government] from all or any of
the following provisions, namely:
Section 54, paragraphs 2 and 3, 59, 107 and 123.]

Notwithstanding anything in the foregoing part of this section, section 54,

paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any
district or tract of country for the time being excluded from the operation of the
Registration Act, (XVI of 1908) [1908], under the power conferred by the first
section of that Act or otherwise.

SECTION: 02
Repeal of Acts. Saving of certain enactments, incidents,
rights, liabilities, etc
In the territories to which this Act extends for the time being the enactments
specified in the Schedule hereto annexed shall be repealed to the extent
therein mentioned. But nothing herein contained shall be deemed to affect:-
(a) the provisions of any enactment not hereby expressly repealed:
(b) any terms or incidents of any contract or Constitution of property which
are consistent with the provisions of this Act, and are allowed by the law for the
time being in force;
 (c) any right or liability arising out of a legal relation constituted before this
Act comes into force, or any relief in respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer
by operation of law or by, or in execution of, a decree or order of a Court of
competent jurisdiction;

And nothing in the Second Chapter of this Act shall be deemed to

affect any rule of [Muslim] law.

SECTION: 03 INTERPRETATION CLAUSE.

 Instrument
 Actionable claim
 Attestation
 Registration
 Notice
 Immovable property

Instrument : Non testamentary instrument.

It is a legal term that is used for any formally executed written document.
Note: A will of dead person, in TOPA, is not considered as instrument because
TPA
deals with inter vivo transactions.
Actionable claim:
An actionable claim is a debt or claim for which the person can take an action
and
also approach the court for recovery of his debt or claim.
Attestation:
To attest means to sign and witness any fact of execution by the executant.
It means a person has signed the document by way of testimony of the fact that
he saw it executed.

ESSENTIALS OF VALID ATTESTATION:

There must be two or more witnesses
The witness must be major
The witness must be sound mind
Registration
Registered means registered in any part of territories to which this act extends
under the law for the time being in force regulation the registration of
documents
It is a document which is officially recorded.
Registration is valuable evidence regarding the statements made in the
document.

As per section 17 and 18 of Registration act 1908.

Section: 17 : Tells the documents which are mandatory to be registered.
Section: 18 : Tells the documents which are not mandatory to be registered.
a) For movable property and Equitable Mortgage: The registration is
optional
b) Lease: Lease of immovable property, exceeding one year is, the registration
is mandatory.
c) Gift deed and simple Mortgage: Gift deed and simple mortgage of
immovable property must be registered irrespective of value of property
d) Sale and any other Mortgage deed: Need to be registered if the value of
immovable property is more than R.s= 100

NOTICE:
Notice means to have knowledge of something i.e to know something.
Thus, notice means knowledge of fact. In law, the notice or knowledge of a fact
affects one’s legal rights and liabilities i.e it is used to decide the claims of two
parties.

As per section 3 of TP.act the notice can be Actual or express or constructive.

1) Actual or Express notice: It means when a person actually knows about

the existence of fact.
2) Constructive Notice: Constructive notice of facts are those facts which a
person ought to have known but because of gross negligence or wilful
abstention does not know it.

NOTICE

Actual or Express or Direct Constructive or Implied or

Indirect
IMMOVABLE PROPERTY:
As per sec.3 of TP.act, it does not include standing timber, growing
crops or grass. (-ve definition)

Section: 3(26) of General clauses act:

Immovable property shall include: Land, Benefits to arise out of land and Things
attached to land.

IMMOVABLE PROPERTY

Land Things attached to land Benefits to arise out

of land

Embedded in earth Attached to the embedded Rooted to the

Earth
Things

As in case of Walls As in case of things

attached to As in case of Trees
& buildings and Shrubs
buildings
 Any thing which comes in above chart will be considered as immovable

SECTION:04 Enactments relating to contracts to be taken as part of Contract Act.

The chapters and sections of this Act which relate to contracts shall be taken as part of the
Contract Act. 1872 (IX of 1872).

[And section, 54 paragraphs 2 and 3,

59 about Mortgage
107 about Lease
123 about Gift
shall be read as supplemental to the Registration Act, 1908.

In simple terms, Wherever the term contract is used in TPA-1882, the contract act will be
applicable there.

CHAPTER II

OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

SECTION: 5 Transfer of Property

Transfer of property is a conscious Act when a living person transfer his property in present
of future to:
 One or more persons
 Himself
 Himself and other living person

The term living person includes:

 Company
 Association
 Body of individuals
 Partnership firm,etc.
What is not considered as transfer under TP.act-1882:
i. Creation of easement or charge over a property is not considered as transfer.
ii. Relinquishment of your right is not transfer
iii. Recognition of pre-existing right is also not a transfer.

FORMALITIES OF TRANSFER:
 Property cab be transferred either by orally or by writing.
 Movable property can be transferred by delivery of possessin or by registeration.
 In case of immovable property of value of more than R.s 100 , then it can be
transferred only by registered instrument
 Attestation
 Registration and Notice (it may be actual or constructive)

SECTION: 6 What may be transferred

Property of any may be transferred except as otherwise provided by this act or
by any other law for the time being in force.
Note: It applies to both i.e moveable and immovable property.

a. Spes successionis: Possibility of getting property in future. It includes:

 Chance of an estate coming to an heir in succession or
 Chance of obtaing any legacy on the death of a relative.
 Any other possibility of similar nature.

This is based on Latin maxim; Nemo dat quod Non habet= No one gives what
he does not have.

b. Right of re-entry:A mere right of re-entry for breach of a condition

subsequent cannot be transferred to any one except the owner of the property
affected thereby.
Example :
A, the owner, gives his property to B on lease along with certain conditions.
A, in this case, cannot transfer his right of re-entry to any one else. He can only
when if he transfers the ownership or tile to such person, the C.
c. Easementary right a part from dominant heritage.
Sub-servient heritage: The property on which right of easement is given.
Dominant heritage: The property to which easement is given.
The Owner of Dominant heritage always keeps the right of easement on the
property of owner of sub-servient heritage.

The right of easement remains with the property not with the person.

d. Restricted interest: An interest in property restricted in its enjoyment to

the owner personally, cannot be transferred by him.
It means if there is any interest on the property and the owner wants to sell that
property he can but the interest will remain with him i.e cannot be transferred.

dd. Right to future maintenance. Future maintenance is for personal benefit

of the person to whom it is granted, thus it cannot be transferred.
(but right to past maintenance is applicable)
e. Right to Sue: Right to sue for indefinite sum of money cannot be
transferred.

Exception: If right to sue is for definite sum of money then it becomes an

actionable claim and hence can be transferred.

f. A public office: A public office and salary of public officer cannot be

transferred, whether before or after it has become payable.

g. Stipends/ pensions: Stipends allowed to military [ naval], [air-force] and

civil pensioners for [the Government] and political pensions cannot be
transferred.

h. No transfer can be made in following three categories :

i. If it opposes the nature of the interest affected.
ii. If it is a transfer of unlawful object or consideration as per section 23 of ICA.
iii. If it is to a person who is legally disqualified to be a transfree.

Also a tenant, a farmer and a lessee cannot transfer

SECTION: 7 Persons competent to transfer.
i. Every person who is competent to contract is competent to be the transferor,
as per section 11 of ICA.
ii. Every person who has good title to property.
iii. Every person who has authority to transfer the property, in case when he is
not the owner.
iv. Every person who is of sound mind.
v. Every person who is major

The word transfer includes; Sale, Mortgage, Lease, Gift and Exchange.

EXCEPTION: Section 43 of this act.

SECTION: 8 What shall be Operation of transfer.

All legal incidents will also transfer along with the principal (subject matter)
The meaning of legal incidents is; the things which are dependent upon and are
following the principal.

Unless it is provided in contrary, the following interest will also transfer with the
transfer of property.
It means if contract is silent about legal incidents then they will be transferred
along with the transfer of principal/ subject.

Land: The right to easement, rents and profits including all the things attached
to the land.

House: The right to easement, rents including locks and keys, bars, doors,
windows and all other things provided for permanent use.

Machinery attached to the Land: All movable parts of the machine which
are the parts the machine.

A debt or other actionable claim: The securities. ( If you are transferring a

debt or actionable claim then you will have to transfer the securities too.

Money or other property yielding income. Interest or income accuring after

the transfer takes effect.

SECTION: 9 Oral transfer

A transfer of property may be made without writing in every case where writing
is not expressly required by law.

Writing is necessary in following cases:

i. Sale/ reversion or other intangible thing
ii. Sale of immovable property of value of R.s 100 or above. (section.54)
iii. Simple mortgage irrespective of the documents secured. (section.59)
iv. Lease of immovable property exceeding one year. (section 107)
v. Exchange, subject to the same rules as sale. (section 108)
vi. Gift of immovable property (section 123)
vii.Transfer of actionable claim (section 130)

SECTION : 10 Conditional transfer:

When transfer of property is subject to the fulfillment of condition by the trans-
free, the transfer is known as conditional transfer.

Types: The condition can be either Precedent or subsequent.

 Condition Precedent: The condition in which the transfer of property

will only come into force when certain conditions are fulfilled.
Example: Contingency = happening or non-happening
A condition precedent will only be allowed if:
i. It is possible to perform
ii. It is not forbidden by law
iii. It not fraudulent
iv. It does not cause injury to third person
v. It is not immoral

 Condition subsequent: The condition which is to be fulfilled after

transfer.
This condition affects the rights of the transfree after transfer.
Example: A transfers his property, the forest, to B on condition that he will not
cut any of the tree from the forest and if he does then he will lose the right hold
the property.
A condition precedent will only be allowed if:
i. It is possible to perform
ii. It is not forbidden by law
iii. It not fraudulent
iv. It does not cause injury to third person
v. It is not immoral
CONDITIONS WHICH RESTRAIN THE ALINATION: (sec.10)

ABSOLUTE RESTRAIN IN INVALID: When property is transferred, the

transfree should not be restrained absolutely from alienating the property.
Example: Afaque sells his property to Sajad and his heirs adding a condition
that if the property is alienated it should revert to the seller.
NOTE: In this case the absolute condition is invalid but the transfer is valid.

EXCEPTIONS: In following two cases absolute restraint is valid:

CASE-1, LEASE The lessor can impose a condition that the lessee shall not
sublet (sub lease on lease) the property or sell his lease hold interest.
CASE-2, WOMEN: A woman who is not Hindu, Muslim or Buddhist. A condition
to effect that she shall not have power during her marriage to transfer the
property is valid.

PARTIAL RESTRAINT IS VALID: If there are conditions which restrain the

tranfree not to alienate the property out of the family. This is a partial restraint
which is valid.
Conditions in family settlement whereby the members are not allowed to sell
their share to a stranger, such conditions are considered to be valid.
Example: A transfers his property to B with a condition that he will not
alienate in favour of D, who is a trade competitor. This is a partial restraint and
hence is valid.
S. Transfer Restriction Condition Exception
N
1 Absolute Absolute Void Yes
2 Absolute Partial Valid
3 Absolute Absolute Valid Yes (women)
4 Lease Absolute Valid Yes

SECTION: 11 Restraint on enjoyment

When property is transferred absolutely, then the transfree has right to enjoy
property as he likes it.
When the transferor places an unreasonable restriction on the enjoyment of the
property, which is transferred absolutely such restrictions shall be void.
Example: A sold his house to B with a condition that only he can reside in the
house but his family members cannot. The condition is invalid.

EXCEPTION: If the condition imposed is for the benefit of another property of

transferor then such condition is to be considered as valid.
Example: A has two properties i.e X and Y and he sells his property X to B with a
condition that he will not construct more than one storey so that plenty of light
and air reach at property Y.

SECTION: 12 Conditions regarding insolvency

If a property is transferred to an other person on a condition that the property

will revert to transferor if transfree becomes insolvent. The condition is invalid.

EXCEPTION: Conditions on lease regarding insolvency is valid.

If a landlord leases his property. He can impose a condition on lessee that if the
lessee becomes insolvent then the lease shall come to an end.

SECTION:13 Transfer for the benefit of unborn person.

As TP.act covers the inter vivo transactions the general rule is that property
cannot be transferred to any such person who is not in existence.
Thus, the property cannot be transferred to an unborn person directly but
through a medium of trust i.e Perior interest.

The property can be transferred to an unborn person if

following condition are fulfilled.
a) The interest of unborn person must be preceded by a prior interest.

A B C
Transferor Prior interest Unborn

b) The unborn person must be in existence when the prior interest comes to an
end.

c) The interest created in favour of the unborn person must be the whole of the
interest remaining of the transferor.
Pre-requisities for valid transfer of property for benefit
of unborn child.
Section. 13 provides the mechanism of the transfer of property.
i. The person intending to transfer the property for the benefit of an unborn
child should first create a life estate in favour of living person and
then an absolute estate in favour of unborn child.

ii. Till the perior person, in whose favour a life interest is created, is alive he
would hold the possession of property and can use for his benefit.

iii. During his life time if the person, who on the day of creation of life estate
was unborn, is born the title of the property would immediately vest in him,
but he will get the possession of the property only on the death of the life
holder i.e Perior interest.

Creation of Perior interest:

As for as the creation of prior interest is concerned first the property is given for
life to a living person i.e Prior interest.
It is not necessary that life interest should be created in favour of only one
living person.
The transferor is competent to create successive life interests in favour of
several living persons at the same time.

Example: A transfers property to B for life and after him to C and then to D
again for their lives and then absolutely to B’s Unborn child.

A B (Life interest)
C (Life interest)
D (Life interest)
Unborn child (Absolute interest)
That is on B’s death the possession would be taken by C and on C’s death by D.
On D’s death the possession of property would go to B’s child absolutely, who
should have come in existence by this time.
If such child does not come in existence the property would revert back to A. If
he is not alive then to his heirs.

NO LIFE INTEREST FOR UNBORN PERSON:

As for as unborn is concerned, No life interest can be created for the benefit of
unborn person.
Sec. 13 specially prohibits that by the use of expression “the interest created
for the benefit of such person” shall not take effect unless it extends to the
whole of the remaining interest of the transferor in the property.
It means that the transfer must convey to the unborn person, whatever interest
he had in the property, without retaining any thing with him.

Thus, no limited estate can be conferred for the benefit of the unborn person.
If limited interest in the property is settled for him, the same would be void.

Example: “A” creates a life estate in favour of his friend “B” and a life estate
for the benefit of B’s 1st unborn child and then absolutely to B’s 2 nd unborn
child. (this is void transfer)

Here the interest for the benefit of first unborn person is limited , which is void
as per sec. 13.
Therefore, after the death of B the property will revert back to A or his heirs.

Even though the transfer for the benefit of 2nd unborn child appears to be
proper and is valid but as it is dependent upon void transfer that cannot take
effect in law.

In short, a transfer dependent on a void transfer will also be void.

A B
B’s UnB1
B’s UnB2

SECTION: 14 RULE AGAINST PERPETUITY

Perpetuity means continuing forever.

No transfer of property can operate to create an

interest;
i. Which will take effect after the death of one or more living person
If the minority of another who exists at the expiration of that period and to who
interest belongs when he attains full age.
OR
The property can be transferred to person for his one life time, existing at the
date of transfer and to the minority of some person who shall be in existence at
the expiration of that period, and to whom, the interest created is to belong if
he attains the age of majority.

Example: A, the owner of property, wants that his property must remain in
family so he transfers his property to his son, B, the property will transfer to my
grand son, C, and after C’s death to great grand son and so on. This is called
perpetuity, which is unlawful. Thus, the property of A cannot be sold by either
his son, grand son and so on.

life interest life interest life interest life interest

A B C D E so on

A transferred his property to an unborn child through a medium (any living

person of trust) with a condition that when unborn child attain the age of
majority then the possession will be vested to him.

FOR EXAMPLE: ‘A’ transferred his property to B in 2007 for the benefit of
unborn child and the unborn child born in 2020. Now, he will attain the age of
majority in 2038. Thus as per condition B will transfer the possession of A’s
property to that unborn child, who is now in existence, in 2038. (This is possible
but perpetuity is not).

The objective of rule against perpetuity is to ensure free and active

circulation of the property. Both for the purpose of trade and commerce as well
as for the betterment of property itself.

In short:
Section: 13,
states that life interest can be created in favour of living
persons and the moment unborn is born he will get the vested
interest.

Section 14,provides that transferor can postpone that vesting of

interest in such unborn person till minority. i.e this section lays down
that one can tie up property and stop its free alienation for one
generation.
Exception (sec.18)
If the transfer in perpetuity is for benefit of public at large, for the
advancement of religion, knowledge, health, safety, or any other
object beneficial to mankind then the restrictions in section 14, 16
and 17 shall not apply.

SECTION-15
Transfer to class some of whom come under sec.13, 14

If, in transfer of property, an interest therein is created for the benefit of a class
of persons with regard to some of whom such interest fails by reason of any of
the rules contained in sections 13 and 14. Such interest fails in regard to those
persons only but not in regard to whole of the class.
Son
Example: A B Son Class-1
absolute owner Prior medium Son

UnB------Class-2
According to section 15 the property will be transferred among the members
of class-1 but not to the class-2.

Because, suppose, the fourth unborn child born after the death of prior
interest. Therefore, as per sec.13 he is not entitled to get right in property.
(sec.13 UnB must come in existence before the death of prior interest or
medium of trust)

SECTION: 16
Transfer to take effect on failure of prior interest
If prior interest fails according to section 13 and 14 then interest created in
favour of unborn person will also fail. That means the property will revert to the
absolute owner.
If absolute owner is already dead then the property will be transferred to his
heirs.
CASE LAW: Girish Dutt V Duttadin, 1934
FACTS: ‘A’ made a gift of her property to ‘B’ for life and then to her sons
absolutely.
In case ‘B’ had only daughters then property go them for their life.
B had no child and died without having any child on the date of execution of
gift.

When B died then X, the nephew of B, filled a case in court under gift deed that
property should be transferred to him absolutely.

Son (absolute interest)

A B
Daughter ( life interest)

X, nephew

JUDGEMENT:
The court held that where a transfer in favour of a person or his benefit is void
under section 13, any transfer contained in the same deed and intended to take
effect or upon failure of such prior transfer is also void.

KEY POINT: The deed provided life estate to B’s unborn daughter, which is
contrary to section 13.
In this case, the transfer stipulated in the contract was void i.e life estate in
favour of B’s unborn child. Therefore, the transfer in favour of X (B’s nephew)
also becomes void.

SECTION-17
Directions for accumulation (Doctrine of accumulation)
Right of transferor:
When the transfer is done with the condition that whatever income arising from
the property shall be accumulated and given to some one.

It can be for either 18 years or life time of transferor. Any direction for
accumulation for higher than these periods will be void.
This section shall not affect any direction for the purpose of:

 Payment of debt of transferor or any other person taking any interest under
the transfer.
 Providing maintenance for children, grand children, etc of transferor or any
other person taking any interest under the transfer.
 For the preservation or maintenance of the property transferred.
 Transfer in perpetuity for the benefit of public at large.

RIGHT OF ACCUMULATION: (In simple terms)

It is possible that transferor may transfer his or her property to transferee with
a condition of accumulation of income from the property.

For its validity it is mandatory that transferee must agree with such condition. If
he does not the condition will become void.

Time period:
 Life of transferor
 18 years from the date of transfer Which ever is more will be considered

Example-1, ‘A’ transferred his property to ‘B’ in 2000 and died in 2015.
In this case, the time period will be 18 years. It means the income from property
will still be submitted to the heirs of the transferor, the A, for next three years.

Example-2, ‘A’ transferred his property to ‘B’ in 2000 and died in 2025.
In this case, the accumulation of property’s income will cease because the time
period is greater then 18-years.

SECTION-18 Transfer in perpetuity for benefit of Public

The restrictions in sections 14, 16 and 17 shall not apply in the case of transfer
of property for the benefit of public in the advancement of religion, education,
health, safety or any other object beneficial to mankind.

SECTION-19 Vested Interest

Where, on a transfer of property, an interest therein is created in
favour of a person without specifying the time when it is to take
effect, or in terms specifying that it is to take effect forthwith
(immediately) 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.

Example-1 A makes a contract with B where A assure B that the

possession will be given to him on 3rd of March 2024.
Here, it is confirmed that the date 3rd March will certainly come.

Example-2 A makes a contract with B on a condition that the

property will be vested to him but only when C die.
Here, the time period is uncertain but the death of C is confirmed.
Characteristics of vested interest:
 In vested interest title passes absolutely from the transferor to the
transferee at the date of transfer, though the possession or
enjoyment may be postponed till the time prescribed.
 Unlike contingent interest, it does not depend on a event which is
uncertain.
 It does not entirely depend on the condition as the condition
involves a certain event.
 The death of transferee will not render the transfer invalid as the
interest will pass on to his legal heirs.
 Vested interest is transferable and heritable.

SECTION-20
When unborn person acquires vested interest on
transfer for his benefit: Where, on transfer of property, an
interest therein is created for the benefit of unborn person acquires when he
comes in existence i.e on birth. The title of such interest vests immediately but
the possession will be handed over only when prior interest comes to an end.
Before the birth or existence of unborn child such right is called contingent
interest.
When unborn person comes in existence the same contingent interest is
converted into vested interest.

Example:- If ‘A’ transfers his estate to a trustee, prior interest, for the benefit
of A’s unborn son with a direction (condition) to accumulate the income of such
interest for the period of ten years from the date of his birth and then hand over
the funds to him.
A’s unborn son acquires a contingent interest but as soon as he comes in
existence the contingent interest is converted into vested interest.
Although he is not entitled to take and enjoy the income of property for 10
years.

SECTION-21 Contingent interest:

Where, on a transfer of property, an interest therein is created in favour 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.
OR
Interest created in favour of a person which will take effect only on the
happening of specified uncertain event, which may or may not happen.
OR
It is an interest which is created in favour of person on a condition of happening
or non happening of specified uncertain event.

Contingent interest is entirely dependent over a condition imposed on transfer.

Example:- A makes a contract with B on a condition that if Pakistan wins

world cup-2023. He will provide him a trip to Madina.
Now here it is uncertain that either Pakistan will win or lose.

Contingent interest becomes vested interest on happening or non happening of

uncertain event.
It is merely a promise of interest on fulfillment of condition.
Contingent interest tells that you have chance of vested interest.

Essentials of contingent interest:-

 Specified uncertain future event may happen
 Specified uncertain future event may not happen
 Where the creation of interest is made dependent on the happening or non
happening of an uncertain future event.
 It is not a present and certain right.

Vested Interest Contingent Interest

Owner’s title is perfect Owner’s title is imperfect but
capable of being perfect
Owner’s right is absolute Owner holds rights merely
conditionally
Take effect from the date of Takes effect on the happening of
transfer contingency
It is not defeated by death of It is defeated by the death of
transfree transfree
Absolute interest can be Only contingent interest can be
alienated by the holder transferred
The happening or non happening The happening or non happening
of condition is certain. of condition is uncertain.

Investitive fact giving right of Such a fact is not yet complete

ownership is complete
 Difference b/w Vested and Contingent interest

SECTION-22 Transfer to members of a class who attain a particular

age.
Where, on a transfer of property, an interest therein is created in favour of such
members only of a class as shall attain a particular age, such interest does not
vest in any member of the class who has not attained that age.
OR
When the transfer is to the members of a class of particular age, the contingent
interest vests only on those members who reach that age.

In simple terms this section talks about the transfer to a group or class of
members with contingent interest.
Example:- ‘A’ , the transferor, transfers his property to a group of four people
with a condition that the property will be vested to the person who attains the
age of 30 years. The persons who have attained the age of 30 years will get an
interest in the property and those who have not attained the required age will
not get an interest in property until 30.

SECTION- 23
Transfer contingent on happening of specified uncertain
event:
Where, on transfer of property, an interest therein is to accrue to a
specified person if a specified uncertain event shall happen, and no
time is mentioned for the occurrence of that event, the interest fails
unless such event happens before, or at the same time as, the
intermediate (prior) or precedent interest ceases to exist.
OR
The prior interest will shift to other person on happening of specified
uncertain event. OR

Contingent interest ends when no time is given for the uncertain even to have happened,
and the previous interest ends without having happened. This prevents the property from
becoming
ownerless.
In simple terms, the contingency must happen before the death of
prior interest.
Actually this prevents the property from becoming ownerless.
ILLUSTRATION: ‘A’ created a life interest in favour of ‘B’ for ‘C’ and
imposed a condition that the property will only be vested to ‘C’ when
he completes his graduation.
Now in this case, ‘C’ must complete his graduation before the death
of prior interest i.e ‘B’.

SECTION-24
Transfer to such of certain persons as survive at some period
not specified:
Where, on a transfer of property, an interest therein is to accrue to such of
certain persons as shall be surviving at some period, but the exact period is not
specified, the interest shall go to such of them as shall be alive when the
intermediate or precedent interest ceases to exist, unless a contrary intention
appears from the terms of the transfer.
ILLUSTRATION A transfers his property to B ( L.I ) with a condition that
upon death of B the property will be equally divided between C and D. But C
dies before the death of B (Life interest or prior interest). Now whole of the
property will shift to D.

SECTION-25 CONDITIONAL TRANSFER (sec.25-34)

When an interest is created on the transfer of property but its fulfillment is
dependent upon a condition by the transfree such transfer is called Conditional
transfer.
ESSENTIALS OF CONDITION:
1. The condition must not be impossible.
2. The condition must not be forbidden by law.
3. The condition should not be against the provisions of law
4. The condition must not be fraudulent.
5. The fulfillment of condition should not cause injury to third person.
6. The condition should not be immoral or against the public.
ILLUSTRATIONS:
i. A lets a farm to B on a condition that he shall walk a hundered miles in an
hour. The condition is void.
ii. A gives R.s 500 to B on a condition that he shall marry A’s daughter, the C.
At the time of transfer the C was dead. The transfer is void.
iii. A transfers R.s 5000 to B on a condition that he shall murder C. The
condition is void. As it is against the provision of law.
iv. M.r X transfers R.s 50000 to his niece, C, on a condition that if she takes
divorce from her husband. The condition is void.

TYPES OF CONDITION:
There are two types of condition i.e Condition precedent or condition
subsequent.

SECTION-26 CONDITION PRECEDENT

Where the terms of a transfer of property impose a condition which must be
fulfilled before a person can take an interest in the property. Such condition is
called Condition precedent. OR
The condition which is fulfilled before the person takes interest has to be
substantially complied with section-26.

ILLUSTRATION: A makes a condition with B that he can only marry when

takes permission from C,D and E. But at the time of performance of condition C
dies. Now here B is bound to take permission from D and E.

The meaning of substantially complied with is that to take permission from

those who are living at the time of performance i.e D and E.
Here it is to be noted that the interest of transferee in the property is
contingent until the condition is fulfilled.

ILLUSTRATION: A transfer R.s 50,000 to B on condition that he shall marry

with the consent of C, D and E. This is called condition precedent.
If E dies and B marries with the consent of C and D. B is deemed to have
fulfilled the condition.
This is called condition precedent substantially complied with section 26.

CONDITION SUBSEQUENT: (sec.29)

The condition which is fulfilled after the person takes interest, has to be
complied with in more strict manner.
When property is immediately vested but can be destroyed or divested because
of non-fulfillment of condition.
ILLUSTRATION: A transfers a forest to B with a condition (proviso) that in
case if B cuts down any tree the transfer shall cease to have any effect.
(condition)
B cuts down a tree. Thus, B loses his interest in the forest.

Difference between Condition Precedent & Subsequent

 CONDITION PRECEDENT CONDITION SUBSEQUENT
A condition precedent should happen A condition subsequent is one by the
before the estate commence. happening of which an existing estate
will be defeated.
Vesting on interest is postponed till the Vesting is immediately completed and
condition is performed. not postponed.
Once the interest is vested it can never Though the interest is vested it is liable
be divested on the ground on non to be divested on the ground of non
fulfillment of the condition. fulfillment of condition.
In case of condition precedent , the In case of condition subsequent , the
transfer is void if the condition is : transfer is valid if the condition is :
a. Impossible of performance a. Impossible of performance
b. Immoral and b. Immoral and
c. Opposed to public policy. c. Opposed to public policy.
It must be valid in the eyes of law The invalidity of the condition
subsequent can be ignored.
The condition precedent may be The condition subsequent must be
subsequently complied with sec.26 strictly complied with sec.29
The doctrine of Cy-press applies. The doctrine of Cy-press does not
applies.
The condition always comes before the The interest is created before the
interest. condition.
If the condition is not valid, then the If the condition is not valid then the
transfer is void condition is considered as void but the
transfer will be valid.

ULTERIOR TRANSFER

SECTION: 27 Conditional transfer to one person coupled with transfer to another

on failure of prior disposition or prior interest. (coupled= addition of another
person’s interest

Where, on a transfer of property, an interest therein is created in favour of one

person, and by the same transaction an ulterior disposition of the same interest
is made in favour of another, if the prior disposition under the transfer shall fail,
the ulterior disposition shall take effect upon the failure of the prior disposition,
although the failure may not have occurred in the manner contemplated by the
transferor.

But, where the intention of the parties to the transaction is that the ulterior
disposition shall take effect, only in the event of the prior disposition failing in a
particular manner, the ulterior disposition shall not take effect unless the prior
disposition fails in that manner.
ILLUSTRATION:
1. A transfer Rs.500 to B on condition that he shall execute a certain lease
within three months after A's death', and, if he should neglect to do so, to C. B
dies in A's lifetime. The
disposition in favour of C takes effect.

2. A transfers his property to B, for his life, with a condition that B will not sell
the property till his majority and if he tried to do so then the property will be
shifted to C.
This transfer of property from to C is called ulterior transfer.

3. A transfers the property in favour of B, the prior interest or disposition with a

condition subsequent that if B marry before the age of 18 years then the
property (prior interest of B) will shift to C. This is called ulterior transfer and
the interest transferred to C is called ulterior disposition.

Actual transfer to B If condition not fulfilled by B

A B C
with condition then ulterior transfer to

Thus, in simple words section 27 says that you can create an ulterior
interest while transferring the property.

SECTION- 28 Ulterior transfer conditional on happening or not

happening specified

An interest will pass to third person if there is condition of happening or not

happening of an uncertain event but within specified time.

ULTERIOR TRANSFER, TIME SPECIFIED

Happen Not Happen

ILLUSTRAION: (Event happening )

A transfers his property to B with a condition that the property will shift to C if
he (B) gets a job within three years.

Uncertain event Specified time

ILLUSTRATION (event not happening)
A transfer his property to B with a condition that the title of property will be
shifted to C if he (B) does not get a job within three years.

SECTION: 29 Fulfillment of Condition Subsequent

An ulterior disposition of the kind contemplated by the Fast preceding section

cannot take effect unless the condition is strictly fulfilled.

Any condition that is required to be fulfilled after the transfer of any property is
called condition subsequent.

This condition is to be strictly complied with and the transfer will happen only
after the completion of such condition.

ILLUSTRATION: ‘A’ transfers any property to B on the condition that he has to

score above 95% in fifth semester. If B fails to achieve given target i.e 95%
then the transfer will breakdown and the property will revert back to A.
Note: The condition must be lawful. Unlawful or impossible condition have no
legal value.

SECTION-30 Prior disposition not affected by invalidity of ulterior

disposition

If ulterior disposition is not valid, the prior interest is not affected by it.
OR
The invalidity of second transaction has no affect over the first transaction.

First transaction: Prior disposition

Second transaction: Ulterior disposition:

ILLUSTRATION: If X transfers his property to Y and then, after his marriage, life
interest to his male offspring.

The transfer to male offspring is not valid as per section 13 of T.P.act which
prohibits the life interest to unborn child.
SECTION-31 Condition that transfer shall cease to have effect in
case specified uncertain event happens or does not happen.

Subject to the provisions of section 12, on a transfer of property an interest

therein may be created with the condition superseded that it shall cease to
exist in case a specified uncertain event shall happen, or in case a specified
uncertain event shall not happen.

ILLUSTRATION:
(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a
certain wood, the transfer shall cease to have any effect. B cuts down the wood.
He loses his life interest in the farm.

(b) A transfers a farm to B, provided that, if B shall not go to England within

three years after the date of transfer, his interest in the farm shall cease. B does
not go to England within the term prescribed. His interest in the farm ceases.
The condition in above illustrations is the condition subsequent and this
condition is given in -ve sense, as the transferor prescribes when the transfer
shall cease to have effect.

SECTION- 32 The condition must not be invalid:

In order that a condition that an interest shall cease to exist may be valid, it is
necessary that the event to which it relates 'be one which could legally
constitute the condition of the creation of an interest.

This section states that the condition mentioned in section 31 must not be
invalid or prohibited by lawa.
OR
All the requirements mentioned in section 25 must met.

SECTION-33 Transfer conditional on performance of act, (no time

being specified for performance)

It states about any transfer where on a condition, time is not specified for the
happening or non-happening of an act.

This transfer ceases to have effect only when the act is made to be impossible
permanently or for a great period of time.

SECTION- 34 Transfer conditional on performance of act, time being

specified: It states about any transfer where on a condition, time is specified for the
happening or non-happening of an act and on the failure of such condition, the interest of the
property is to go to another person.

If the condition is fulfilled within the prescribed time, then the transfer will continue to have
effect, and if not then the transfer shall cease to have an effect.

ILLUSTRATION: M agrees to transfer land ‘X’ to N on the condition that he shall go to

England in a span of 2 months.
If N goes to England within the prescribed time period then the transfer shall go through and
N shall get the property. but if he fails to do so inside the 2 months specified by M, the
transfer shall cease to have effect.

But, it has to been seen that, what caused the delay of the condition to be fulfilled. If the
performance of the specified condition that may be either subsequent or precedent is
prevented by a person who is interested in its fulfillment, the delay is condoned and the
condition is discharged.

PERFORMANCE OF ACT,WHEN

Time is specified
(sec.34)
performance of an act
No time specified subject condition within
specified time. If condition
(sec.33) Performance of
is not fulfilled within
any act subject to condition
specified time then the
transfer will cease.
but when no time period is
specified.
Example: A transafers his
property to B on a
Note: This transfer ceases
SECTION-35 DOCTRINE OF ELECTION

The term election means to choose.

A person can’t accept part of agreement which is beneficial and reject other
part which is burdensome. He can either accept agreement entirely or reject
entirely.

”No person can approbate and reprobate at the same time”

ILLUSTRATION- A transfers to you his land, and in the same deed of transfer
asks you to transfer your house to C. Now, if you want to have the land, you
must transfer your house to C, because the transferor is transferring to you his
land on the condition that you give your house to C. Here, either you take the
land and part with your house or do not take it at all. This is called the doctrine
of election.
OR
ILLUSTRATION- A property is given to you and in the same deed of gift you
are asked to transfer something belonging to you to another person. If you
want to take the property you should transfer your property to someone else,
otherwise you cannot take the property which is transferred to you by
someone.

This doctrine is based on the principle of equity and the basic concept of this
doctrine is that the person taking benefit under an instrument must bear the
burden also.

The principle of the doctrine of election was explained by the House of Lords in
the leading case of Cooper vs. Cooper.

The question of Election arises only when a transfer is made by the same
document. If the transferor makes a gift of property by one deed and by
another asks the donee to part with his own property then there is no
question of election.
Where a person professes to transfer property which he has no right to
transfer, and as part of the same transaction confers any benefit on the owner
of the property, such owner must elect either to confirm the transaction or to
dissent from it. (bare act language).
If he dissents; he will have to relinquish the benefit back to the transferor.

EXCEPTION: Only the benefit in lieu of the property has to be relinquished.

Example- Suppose there are three friends namely Sajad, Afaque and Imran.
Sajad says to Afaque that it would be better if you transfer your property to
Imran for certain price.
Here, It is the Sajad who has no right over property but he professes to Afaque
that he should transfer his property to Imran.
Now Its upto Afaque, the title holder, that either he elects or rejects the offer. If
he elects, he must transfer the property to Imran and take benefit from Sajad.

WHEN ELECTION IS NOT NECESSARY:

i. When a person takes benefit in one capacity and in an other
capacity dissents.

CASE:- Muhammad Afzal V Gulam Qasim-1903

Facts: There was a Nawab, who had two sons, he gave two villages to his
2nd son and then died.
The govt then decided that the first son will get the state in succession and
therefore, he was nominated as the chief of the state.
The second son was not considering him as chief of the state therefore, the
 first son decided to give cash allowances to the second son.
He took cash allowances and agreed to consider him as the chief of the state
but did not returned two villages.
Then the state filed a suit against him (2nd son) in court where the defendant
argued that the cash allowance, which was paid to me, was for considering
the chief as chief but not for returning the villages to the state. Which I was
awarded by my father in his life. So, why should I return ?
DECREE:
The court disallowed the petition of the state and gave verdict that the cash
allowance and two villages are two different transactions.
For doctrine of election it is necessary that there must be single transaction.
Hence the petition is rejected.

ii. When a person is taking no benefit directly, but deriving a benefit

indirectly.
ILLUSTRATION:- There is a shopping mall whose owner is D and A wants to
buy this shopping mall therefore, he approaches the owner’s son, C, so that
he make the deal possible.
C agreed and took amount and went to persuade his father, D. Initially, D
accepted the offer and took the payment,indirect benefit, but later he
refused to sell the mall and did not return the paid amount.
Here A has no direct relation with D. Therefore, D is not answerable to A.
A can only approach C who has no right to sell the property and cannot
return the money back because he has already transferred to his father, the
indirect beneficiary.

DISAPPOINTED TRANSFREE:
In case, when the owner elects to relinquish the benefit and not to transfer the
property, then the transferee gets disappointed and hence called
disappointed transferee.

Rights of disappointed transferee:

Disappointed transferee is entitled to the amount or value of the property
attempted to be transferred to him in following case;

a) Where the transfer is for consideration

b) Where the transfer is gratuitous and the transferor has, before the election,
died or otherwise become incapable of making a fresh transfer.

took benefit from did not elect

A B C
 C and transferred to while A died before transfer of interest to

In above example the representatives of A will compensate to C

Time limit for election:

Election by owner can be implied in the conditions below.
 2 years enjoyment
 Impossibility

APPORTIONMENT

By time (36) By estate (37)

SECTION: 36 Apportionment of periodical payments on determination
of interest of person entitled.

The legal term apportionment means distribution of proper shares or division of

common fund between several claimants.

In law, this term is used in various senses even various statutes define it in
various ways as per laws regulating these apportionment the process to
determine the apportioned amount also changes.

Section 36 and 37 of TP. Act lay down the rules regarding the principal of
apportionment. It is classified into two types.
1) APPORTIONMENT OF PROPERTY BY TIME: 36
Section 36 of the act states that payments will be accrued over time and
apportioned between the transferor and transferee based on the length of the
ownership.
The Payments will continue to be made on appointed dates.
During the transfer of any property that generates income via:
 Rents
 Pensions
 Annuities
 Dividends
 Other periodic payments.
ILLUSTRATION:
Sajad lets his property to Afaque for R.s 1000 per month and he pays the rent
amount at the end of each month.
If Sajad sells his property to Imran on January-15, then as per rule Afaque will
have to pay half of R.s 1000 to Sajad and Imran on January-31.
When property generates certain kind of periodical income, apportionment of
income b/w transferor and transferee arises.

The general rule in regards to the transfer of income between the transferor
and transferee is dealt in section-8 of the act , which states that;
Unless to the contrary, when property is transferred transferee gets property
along with all its incidental benefits.
If the property is land, such incidents include;
 Easement attached to it
 Rents
 Profits occurring after transfer &
 All things attached to Earth
2) APPORTIONMENT OF PROPERTY BY ESTATE (37)
When the property is being divided in between more then one person, any
benefit arising out of obligation to the property is transferred to the several
owners.
Apportionment by estate simply means transferring of property to several
owners as per their shares in the property. OR
Apportionment by estate means dividing all income generated by the property
that is sold to several owners. i.e
 All rents
 Annuities
 Pensions
 Dividends and
 Other periodic payments

This division must be made according to the portion of property ownership.

Traditionally income is distributed according to the portion of sale value paid
by individual owners.
 If Income is monetary, it can be distributed among the many owners.
 If the income is in form of non-divisible asset, the transaction is made at the
direction of several owners.

The duties and obligations connected with the property do not grow with the
number of owners.
The burden of duties and obligations on any individual does not rise with the
number of owners but remains constant irrespective of the property on the
direction of the owners.

The person who has the obligation to execute the duties cannot be held liable
for failure to perform the duties unless he has been given reasonable notice
severance.
Therefore, the obligation attached to the property must then be performed in
favour of each of several owners in proportion to their respective shares in the
property.

ILLUSTRATION:
A sells to B,C & D a house situate in a village and leased to E at an annual rent
of R.s-30 and delivery of one fat sheep. B having provided half the purchase
money and C and D one quarter each. E having notice of this, must pay R.s 15
to B, R.s 7.5 to C & D and must deliver one fat sheep according to the joint
direction of B, C and D.

SCOPE: The section 37 has no application to involuntary transfer or to the

cases of the succession i.e it is applicable in cases of inter-vivo transactions.

PRINCIPLE: In case of joint property each owner is entitled to the profits

occurring from his respective shares, provided that he gives notice his share to
the person held liable.

ESSENTIALS: The essentials of this section are given bellow;

a) The duty must be of such nature that can be severed.
b) The severance should not substantially increase the obligation
c) Reasonable notice of severance must be given to the person bound to pay.

EXCEPTION: Agricultural leases:

Nothing in this section applies to leases for agricultural purposes unless and
until the govt by notification in official gazette so directs.

As, this section might cause hardship to the agriculturists, the agricultural
leases are exempted from its operation.

Payment of rent to one of several co-sharers discharges the tenant (unless the
tenant had given instructions or notice about specific co-owner)
SECTION- 38 Transfer by person authorised only under certain
circumstances to transfer.
Where any person, authorised only under circumstances in their nature
variable to dispose of immovable property, transfers such property for
consideration, alleging the existence of such circumstances, they shall as
between the transferee on the one part and the transferor and other person (if
any) affected by the transfer on the other part be deemed to have existed, if
the transferee, after using reasonable care to ascertain the existence of such
circumstances, has acted in good faith.
ILLUSTRATION:
A, a Hindu widow, whose husband has left collateral heirs alleging that the
property held by her as such is insufficient for her maintenance (circumstance)
, agrees for purposes neither religious nor charitable, to sell a field, part of
such property, to B.

B, satisfies himself by reasonable enquiry that the income of the property is

insufficient for A's maintenance, and that the sale of the field is necessary, and
acting in good faith, buys the field from A.
As between B on the one part and A and the collateral heirs on the other part,
necessity for the sale shall he deemed to have existed.
SCOPE:
The rule enunciated in this section is established in the case of
Hanooman Pershad Pandey V Mt Babooee Munraj Kunwari.

As this section enunciates a rule founded on Hindu Law, it has long been
recognized as being applicable to Hindus and now applies to Muslims as well.
PRINCIPLE:
This section and the sections 39, 40 & 41 protect the rights of the transferee
(purchaser) who acted in Bona-fide intention and without notice.
Therefore, the Transferee cannot be ousted by the rightful owner. If he
acquires property from a person having a limited interest therein after:
i. Making reasonable enquiries and
ii. In good faith
ESSENTIALS:
In order to make this section applicable the following elements must be
present.
i. The transferor is authorized to dispose of immovable property, under
special circumstances.
ii. The transferor must have alleged the existence of such special
circumstances, at the time of transfer.
iii. The transferee must have paid consideration .
iv. The transferee must have exercised reasonable care to ascertain weather
these circumstances exist or not.
Circumstances: special circumstances for maintenance , legal necessity

v. The transferee must have acted in Bona-fide (good faith) .

Bruden of Proof: The duty of making enquiry is primarily cast by the law
upon the transferee. Therefore, it is for him to allege and prove the
circumstances, justifying the alienation.
SECTION: 39
Transfer where third person is entitled to
maintenance:
Where a third person has a right to receive maintenance or a provision for
advancement or marriage from the profits of immovable property, the right
may be enforced against the transferee, if he has notice [thereof] or if the
transfer is gratuitous; but not against a transferee for consideration and
without notice of the right, nor against such property in his hands.

Right of third person to maintenance:

If an immovable property is transferred and a third party has right to receive
maintenance or a provision for advancement or marriage from that immovable
or its profits. Such right can be enforced against transferee if:
 Transferee had notice
 Transfer for gratuitous

 But right cannot be enforced against transferee for consideration and

without notice of right. (AIR-1958 Andh.Pr.396)
 When the transfer is gratuitous, the right can be enforced against
transferee irrespective of the question of notice.

ILLUSTRATION: ‘A’ bought a property for maintenance of marriage of his

daughter from the income of such property. Some how he transferred the same
property to ‘B’ without consideration i.e gratuitously with or without notice.
Here third party (the daughter of A ) is entitled to receive the maintenance for
her marriage.

OBJECT:
This section is intended to protect those persons who are entitled to receive
maintenance or for whom provision is made for advancement or marriage from
the profits of any immovable property.

(Every interest has right but every right has no interest)

SECTION: 40 Burden of obligation imposing restriction on use of

land.
A third person has a right (which is not an interest in an other's immovable
property or an easement) to restraint over a property in two situations.

i. For the more beneficial enjoyment of his own immovable property (it is the
exception of section 11)
ii. Under obligation annexed to ownership via contract. (covenant)

Such right can be enforced against transferee if:

i. Transfer was gratuitous
ii. Transferee had notice

 If transfer was gratuitous then having notice to transferee is not necessary.

 The right cannot be enforced against the transferee if he paid consideration
without having notice.

COVENANT: A formal agreement or promise, usually included in a contract or

deed, to do or not to do any particular act. OR
Written agreements or contracts with respect to property.
TYPES:
i. General covenant: The covenant in which the right or obligation is
annexed to the ownership of immovable property. It can be enforced against
transferee having notice.
ii. Specific covenant: The covenant in which the right or obligation is not
annexed to the ownership of immovable property. (merely personal ).
It cannot be enforced against the transferee without notice.
ILLUSTRATION:
A contracts to sell his property to B. While the contract is still in force, he sells
the property to C, who, has notice of the contract. B may enforce the contract
against C to the same extent as against A.

CASE LAW: Tulk V Moxhay 1948- Leicester square

FACTS:
 Tulk owned a land with a garden surrounded by house in london
 He sold the garden to E with a covenant that E and his successors will keep
the garden intact (present form) and will not construct any building over it.
 The Garden was sold many times and ended up with M.
 M- then sought to construct a building over the land despite knowing about
the covenant before buying the land.
 T’s representatives at the time objected.

HELD
 T’s claim was allowed
 The court held that all subsequent transferee were bound by covenant
KEY POINT:
passing of the burden of restrictive covenants occurs only with notice of the
transferee.
Although the requirement of notice has now replaced by the statutory
registration regime under the land registration act 2002 .

ANALYSIS:
A third person for beneficial enjoyment of his own immovable property has a
right to restrain the enjoyment in a particular manner of any immovable
property of another (but this right does not amount to interest in the immovable
property or any easement thereon).
Section 40 does not apply to: (EXCEPTIONS)
a. Covenants creating interests in the immovable property
b. To easement thereon
c. To covenants running with the land
d. To covenants merely personal (not annexed with the ownership of property)

PRINCIPLE:
The general rule is that where a man by gift or purchase acquires property from
another, with knowledge of previous contract lawfully and for valuable
consideration made by him with a third person to use and employ the property
for particular purpose in a specified manner, the acquirer shall not, to the
material damage of the third party, in opposition to the contract, and
inconsistently with it, use and employ the property in a manner not allowable to
the giver or seller.
The object of this section is to protect covenants which are universally
regarded as necessary for the improvement or beneficial enjoyment of
one’s property.

TRANSFER BY A PERSON OTHER THAN FULL OWNER (41_43)

SECTION-41Transfer by Ostensible owner (Doctrine of ostensible

owner)
OSTENSIBLE OWNER:
The term ostensible means what seems to be real.
Therefore, he is not the real owner but to third parties, he just portrays himself
as the legitimate owner.

Def: The person who has all the indications of ownership and looks like the
owner but still is not the real owner. OR
The person who is not the genuine owner of the property.

In general, the real owner is qualified owner with all rights whereas the
ostensible owner has all rights but yet is not qualified. By the express or implied
consent he obtains such rights from the real owner.

Essential conditions for valid transfer by a Person not real owner

[Kanwal Nain V Fateh Khan (PLD 1983-S.C-53)]
a. The transferor must be the ostensible owner and
b. Must act with the consent of real owner either express or implied.
c. The transfer must be for the consideration (It means ostensible owner
cannot transfer property in gift)
d. The transferee had acted in good faith i.e taking every reasonable care to
ascertain that the transferor is authorised to transfer. (If this point is missing
then the transferee cannot enjoy the benefits of this section)
e. It’s important to note that this section applies only to the transfer of
immovable property and not movable property.

If all these conditions are fulfilled, the transfer will not be voidable just
because the transferor was ostensible owner and not the real owner.

PRINCIPLE: An exception to the ‘Nemo Dat Quod Non Habet’ rule:

The rule enunciated in Section 41 acts as an exception to the general principle ‘Nemo Dat
Quod Non Habet‘ i.e A person cannot transfer what he does not have.
Section 41 is a well-accepted exception to this general principle.

ILLUSTRATION:
If the real owner entrusts a particular person with the title papers in any reasonable manner
and makes him an ostensible owner, then a third party who (after appropriate investigation)
trades with such an ostensible owner in a Bona-fide manner might obtain a valid title to the
property as against the real owner.

Persons who cannot be Ostensible owner:

There are certain individuals who are not considered ostensible owners. They
include:
a. Self-proclaimed managers or agents who claim to have authority over the
property.
b. Mortgagors who have a minor interest in the property and act as servants.
c. Co-sharers who occupy jointly shared family property.
d. Trustees or managers of idols, as idols themselves cannot provide consent.
e. Bailee
f. Lessee
g. Pledgee

Protection for Third-Party Purchasers:

According to this rule, if one person allows another to hold themselves out as the owner of a
property and a third party purchases the property in good faith from the ostensible owner,
believing them to be the real owner, the person who allowed the ostensible owner to act as
such cannot later claim their secret title.
However, this rule can be overturned if the person who allowed the ostensible ownership can
prove that the third party had direct notice or constructive notice of the genuine title, or if
there were circumstances that should have prompted the third party to investigate and
discover the true ownership.

Rule of estoppel
This section 41 is based on the rule of estoppel against the real owner and in favour of the
person to whom the right to representation was given ( Ostensible owner in this case).
The law of estoppel urges that ‘when the real owner of the property depicts (represents)
some other person as the owner to third parties and those parties act based on that
representation, the real owner then cannot rescind his representation or approval’.

The concept was articulated by the House of Lords in Cairncross v Lorimer (1860) as
follows:
when one party represents, by words or conduct, that they will perform or abstain from a
certain act, and the other party acts based on that representation, the party making the
representation is bound by it.

Burden of proof:
In cases where a transferee seeks immunity under Section 41, the burden of proof rests on
the transferee to demonstrate that they were dealing with an ostensible owner. They must
establish that the transferor was holding themselves out as the owner of the property or that
the transaction was a Benami transaction.
Furthermore, the transferee must show that they took reasonable precautions to safeguard
their interests. If the other party claims to have evidence that would lead to the disclosure of
the truth, the burden of proof may shift to that party if they provide a starting point for
inquiry. If a person claims ownership of property that has been transferred to someone else,
they must prove their claim.

SECTION 42 Transfer by a person having authority to revoke former

transfer.
Where a person transfers any immovable property, with a condition subsequent, reserving
power to revoke the transfer and subsequently transfers the property for consideration to an
other transferee. Such transfer operates in favour of such transferee (subject to any condition
attached to the exercise of the power) as a revocation of the former transfer to the extent of
the power.
EXPLANATION:
When a person transfers his property to another person for consideration with a condition
subsequent. Such property will be vested to the transferee until he acts against the
condition.
When the condition is not fulfilled by transferee then the transferor becomes entitled to make
another transfer to another transferee.

ILLUSTRATION-1 “A” the transferor, transfers his property to B on lease with a condition
that he reserves the power to revoke the lease in case when you (lessee) failed to pay the
consideration.

ILLUSTRATION-2
A lets house to B, and reserves power to revoke the lease if, in the opinion of a specified
surveyor, B should make a use of it detrimental to its value.
Afterwards A thinking that such a use has been made, lets the house to C. This operates as a
revocation of B's lease subject to the opinion of the surveyor as to B's use of the house
having been detrimental to its value.

SECTION 43 Transfer by unauthorized person who subsequently acquires

interest in property transferred. (DOCTRINE OF FEEDING THE GRANT BY
ESTOPPEL)

 If a person fraudulently or erroneously represents that he is authorised to transfer certain

immovable property and professes to transfer such property and later acquires the
interest to the transfer.
 Then the transferee at his option will have a rightful interest over that property if the
contract of transfer still subsists at that time.
Essential points:
 The transfer should be for consideration
 Transferee should have acted in good faith and without notice.

 Nothing in this section shall impair the right of transferee who acted in good faith (bona-
fide intention) for consideration and without notice.

ILLUSTRATION:
A, a Hindu, who has separated from his father B, sell to C three fields, X, Y and Z,
representing that A is authorised to transfer the same.
Of these fields Z does not belong to A, in having been retained by B on the partition; but on
B's dying A as heir, obtains Z. C, not having rescinded the contract of sale, may require A to
deliver Z to him.
PRINCIPLE
This section deals with the transfer, for consideration, by unauthorized person who
subsequently acquires interest in the property transferred .
In such a case the transferee may, if he so desires, ask the transferor to make good the
transfer out of any interest which he may subsequently acquire in the property.
The section assumes that the transferee was not aware of the true interest of the transferor
with reference to the property in question, and that he acted on the representation.
SECTION 41 & 43 COMPARED:
Both sections 41 and 43 are based on the principal of estoppel where on a representation
made by one party and acted upon by another, the right of latter are prejudiced so as to
enable him to the benefit of the principle of estoppel as against the other.

Section-41 demands the following on the part of the transferee:

 Bona-fide intention
 Exercise of reasonable care.
While section 43 does not demand above two given factors and also the section does not
impose on the transferee the duty to make an enquiry into the true extent of interest of
transferor.

RULE OF ESTOPPEL:
This doctrine signifies that when a person promises for something more than he possesses,
then he has to complete his promise when in real he acquires the concerning immovable
property.
Example same as given in above illustration.

Invalid Transfer:
43 of the Transfer of Property Act acts as an exception to section 7 of the Act. section 7
declares all unauthorised transfers void, however, section 43 acts as an exception of the
same which declares the unauthorised transfer under section 43 valid. However, the
transferee cannot take the help of section 43 in the following cases:

 If the transaction is against public policy

 If the transferor is minor
 If transferee has notice of fact
 Transfer is gratuitous
Section 43 is applicable in all other situations except in the two conditions mentioned herein
above
In section 41 estoppel is for original owner (but not for ostensible owner) while in section
43 estoppel is for transferor (who at the time of transfer was unauthorized). (important to
note).

IS THERE ANY CONFLICT BETWEEN SECTION 6(a) & SECTION 43?

The honourable Supreme Court in the case of Juma Masjid v. Kodi maniandra, observed
that there is no conflict between Section 6 (a) and Section 43.
The provisions of S. 6 (a) refer to the rule of substantive law. Whereas section 43 prescribes
a rule of equity in case a transfer is made by a person not having the authority to transfer.
 DIFFERENCE BETWEEN SECTION 43 & SECTION 6(a)

Section 6(a) Section 43

J Section 6 (a) enacts a rule of substantive Section 43 incorporates rule of estoppel
U law
M The doctrine of Spes successionis applies The rule of estoppel under section 43
M to both movable and immovable applies only in cases of immovable
A properties. property.
It applies in cases of gratuitous and non- It applies only in cases where transfer is
gratuitous transactions. Therefore a gift of for consideration and does not apply in
property a person hopes to inherit is also cases where a person transfers the
void. property by way of gift.
The section 6 (a) shall apply even The section 43 will not apply if transferee
transferee have notice has no notice.
There is no misrepresentation from the The misrepresentation is present from the
side of transferor. side of transferor.
The transferee has notice of the fact. The transferee has no notice of fact i.e
transferee acts in good faith.
The transfer under section 6(a) is void ab- The transfer under section 43 is voidable
initio at the option of transferee provided two
conditions:
i. The contract should be in existence till
the transferor attains competency.
ii. The property should be available with
transferor.
MASJID, MERCARA V KODIMANIANDADRA DEVIAH-1962
CASE SUMMARY:

This case deals with the difference between 6(a) and Sec. 43 of Transfer of
Property Act, 1882
Appellant: Jumma Masjid, Mercara
Respondent: Kodimaniandadra Devia

BASAPPA

Santhappa Nanjundappa Basappa Mallammal

died-1907 died-1901
Ammaka Gangamma
 died-1910

Ramegowda Mallegowda

Basappa Mallappa Santhappa

The persons had died on the date mentioned in the chart. Nanjundappa had died
in 1907 leaving behind his widow Ammakka who later died in 1910.
Similarly, Basappa had died in 1901 leaving behind his widow Gangamma.

The property was in the hands of Gangamma when most of the joint family
members had died and Bassappa, Mallappa and Santhappa were the next
reversioners now. These 3 sold this property to one Ganapathi, making him
believe that these three were actual owners of the property now.

Ganapathi later sued to recover possession of the properties

but Gangamma claimed that she was entitled to them as those properties were
the self acquisitions of her husband Basappa. Before the case could finally
dispose of, Gangamma died.
Basappa asked the Revenue Authorities to transfer the property in his name. Here
the Jumma Masjid, Mercara intervened and claimed that it was entitled to the
properties on 2 grounds :
i. Firstly under a gift alleged to have been made by Gangamma before dying,

ii. Secondly, under a deed of release executed by Santhappa, one of the

reversioners, giving up his half-share in the properties to the mosque for some
consideration

Ganapathi contended that since he did not know that those three reversioners were not
actually the owners because they themselves represented as if they had the title, and now
when they are in actual possession after the death of Gangamma, according to Sec. 43,
TPA,1882 which includes Rule of Estoppel, he (Ganapathi) should be entitled to get the title
of the property.
Jumma Masjid claimed that three reversioners were only expecting that property in
succession and did not have any title then and therefore under section 6(a), those three
revesioners were not entitled to transfer the property and that the sale of that property to
Ganapthi by 3 reversioners was void.

Issue
Whether a transfer of property, in return for some consideration, made by a person
who represents that he has a present and transferable interest in that property,
while in reality he possesses only a spec succession, is within the protection of
section 43 of the TPA, 1882 ?
Law Observations:
1. The court while explaining the significance of Section 43, TPA said, “ it clearly applies
whenever a person transfers property to which he has no title on a representation that he
has a present and transferable interest therein, and acting on that representation, the
transfree takes a transfer for consideration. When these conditions are satisfied, the
section enacts that if the transferor subsequently acquires the property, the transferee
becomes entitled to it, if the transfer has not meantime been thrown up or canceled and
is subsisting. There is an exception in favour of transferees for consideration in good faith
and without notice of the rights under the prior transfer.”

2. On the contention by appellants(Jumma Masjid) that sale was void under Sec 6(a),
TPA the apex Court observed that :

3. Section 6(a) and Section 43 relate to two different subjects, and there is no
necessary conflict between them.

4. Section 6(a) deals with certain kinds of interests in property mentioned therein,
and prohibits a transfer simply of those interests. Section 43 deals with
representations as to title made by a transferor who had no title at the time of
transfer, and provides that the transfer shall fasten itself on the title which the
transferor subsequently acquires.

5. Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of
estoppel which is one of evidence.

6. Where the transferee knew as a fact that the transferor did not possess the title
which he represents he has, then he cannot be said to have acted on it when
taking a transfer. Section 43 would then have no application, and the transfer
will fail under Section 6(a). Where the transferee knew as a fact that the
transferor did not possess the title which he represents he has, then be cannot
be said to have acted on it when taking a transfer. Section 43 would then have
no application, and the transfer will fail under Section 6(a).

 On the contention by the appellants that there a plea of estoppels could not
be raised against a minor who had transferred property on a representation
that he was of age above that of a minor, the court observed, “Section 43 deals
with transfers which fail for want of title in the transferor and not want of
capacity in him at the time of transfer. It may further be observed in this
connection that the doctrine of estoppel has been held to have no application to
persons who have no contractual capacity where the claim is based on contrac t.

Decisions on transfers by minors therefore are of no assistance in ascertaining

the true scope of Section 43.” (in short Court said that neither section 43 nor
the Rule of Estoppel deals with those cases where the competency of the party
to contract is in conflict rather they deal with the cases where the title of the
transferor is in conflict at the time of transfer)
Held
The court held that when a person transfers property representing that he has a
 present interest in that property, whereas he has, in fact, only a spes
successionis, the transferee(means to whom the property is transferred ) is
entitled to the benefit of Section 43, if he has taken the transfer on the faith of
that representation and for consideration.
The Apex Court further held that the courts below were right in upholding the
title of the respondents

CONCLUSION:
The doctrine contained under section 43 is based on equitable principle (one must be given
that for which he is entitled) that if a person promises more than he can perform, then he
must fulfill the promise, when he gets the ability to do so.
Therefore, if the transferor professes to transfer, equity does not permit him to deny his
earlier grant.

CO-OWNER, 44-47
SECTION 44 TRANSFER BY ONE CO-OWNER

 If one of the legally competent co-owners his share or interest of an immovable property,
the transferee shall acquire such share and interests as would be necessary to give
effect to that transfer.
 Transferee will get transferor’s right to joint possession, common areas, part enjoyment
of property and even the right to enforce a partition but subjected to the conditions and
liabilities.

ILLUSTRATION:
Consider, there are three co-owners C1, C2 and C3 in a property with ratio of 1/4, 1/4 and
1/2 respectively.
If C1 transfers his share to transferee (D) then such transferee will get all rights which are
necessary to give effect the transfer.

E.g There is a flat based on three bedrooms of three co-owners. If one of the co-owner
transfers his bedroom to D. In such case the transferee will be entitled to all those rights,
there in flat, which were enjoyed by the C1 i.e right to use common washroom, kitchen,
hall, etc.

EXCEPTION: Undivided Dwelling house

Washroom General room

Hall

Kitchen
C3 C2 C1


SECTION: 47 Transfer by Co-owner of share in common property

If several co-owners of immovable property transfer a share without specifying
that the transfer is to take effect on any particular share or shares of the transferors then;

 If shares are equal among the transferors, then the transfer shall take effect equally.
 If shares are unequal among the transferors, then the transfer shall take effect in
proportion to their shares.

ILLUSTRATION: There is a land owned by three co-owners, A, B and C.

A’s share in the land is 50% while B’s and C’s share is 25% each.
The Co-owners including A, B and C transfer 30% of the land to D, the transferee.
Here in this case the 15% of share will be transferred from A’s share and 7.5% from B and
C’s share.

The income from any common property (which is sold) will also be shared in the same way i.e
15% to A and 7.5% to B and C.

JOINT TRANSFER: 45-46

SECTION 45 Joint transfer for consideration

when an immovable property is transferred for consideration between two or more persons
and payment is made:

 From a common fund: when consideration is paid out of a joint fund their shares in the
property are proportionate to the interest in the fund.
The rights and shares shall be distributed be tween them in proportion to their
entitlement of that fund.
 From separate fund: When consideration is paid out of separate funds their shares are
directly proportional to the amount (consideration) paid by each of them.

When property is acquired in the names of several members of a joint family and there is
no evidence as to the proportion in which they contributed for that acquisition, the
presumption is that each of them has an equal share in it.
SCOPE: This section deals with the quantum and not with the quality of interest of
joint transferees. And it does not touch the question whether in such cases the transferees
take as joint tenants or tenants in common.
This section does not apply where the rights are already determined by a contract.

SECTION 46.Transfer for consideration by persons having distinct

interests.

When an immovable property is transferred for consideration by persons having distinct

interests the transferors are entitled to share in the consideration;

 Equally: Where their interests in the property were of equal value.

 Proportionality to their interest: where such interests were of unequal value.

SCOPE: This section will apply only in absence of a contract to the contrary.

CASE LAW A.I.R. 1959 S.C. 1024 (Brisa Munda v. Chanoo Kumari)
Facts:
Brisa Munda and Chanoo Kumari were sisters and co-parceners in a piece of land. They
decided to sell the land to a third party for Rs. 10,000. Brisa Munda was entitled to a two-
thirds share in the land, while Chanoo Kumari was entitled to a one-third share.

However, Brisa Munda and Chanoo Kumari could not agree on how to divide the
consideration. Brisa Munda claimed that she was entitled to two-thirds of the consideration,
i.e., Rs. 6,666.66, while Chanoo Kumari claimed that she was entitled to one-half of the
consideration, i.e., Rs. 5,000.
Issue:
Whether Brisa Munda was entitled to two-thirds of the consideration, or whether Chanoo
Kumari was entitled to one-half of the consideration.
Judgment:
The Supreme Court of India held that Brisa Munda was entitled to two-thirds of the
consideration. The court reasoned that Section 46 of the Transfer of Property Act, 1882
applies even where the transferors have unequal shares in the property being transferred.
Analysis:
This case law is important because it clarifies that Section 46 of the Transfer of Property
Act, 1882 applies even where the transferors have unequal shares in the property being
transferred. This means that each transferor will be entitled to a share of the consideration
in proportion to their respective interests in the property, unless there is a contract to the
contrary.
Conclusion:
If you are a transferor of immovable property with distinct interests therein, it is important
to be aware of your rights under Section 46 of the Transfer of Property Act, 1882.
SECTION: 48 Priority of rights created by transfer. ( DOCTRINE OF
PRIORITY)

INTRODUCTION:- The doctrine of priority is a legal concept that deals with the
determination of rights of the conflicting parties over the same. It is set by the section 48
of this act.
The doctrine helps the court in determining the party to whom the rights are to be given
priority over the other in case where the court has conflicting interests.
In Simple words:
If a person sells or gives away the same piece of land or building to different people at
different times, the person who got it later cannot enjoy it fully without affecting the
rights of the people who got it earlier.
EXAMPLE: A sells his house to B in January and then sells the same house to C in
February, C cannot live in the house without B’s permission because B has right to live
there first. C’s right to live in the house is subject to B’s right.
The only way this can be avoided is if A makes a special agreement with B and C that
says how they can share the house.

This doctrine is based on a Latin principle:

Qui prior est tempore potior est jure = He who is earlier in time is stronger in law.

First in time, first in right.

If two people have claims to the same property, the person who acquired their claim first has
priority. This means that their claim will be upheld over the claim of the person who acquired
their claim later.
ILLUSTRATION:
’A’ mortgaged his property to B on 15 January and then sold the same mortgaged property to
C on 1st February.
Now here the rights in same property are transferred to two different people at different
times.
This doctrine solves such problems or conflicts as:
The rights which are created earlier are given priority over the rights which created later.
Therefore, B has right to hold the possession till A repays the, mortgage-money to B.
After this C becomes the full owner of property.
ESSENTIALS:
 Applicable to immovable property
 There should be one transferor and more than one transferee
 The transfer should have been made at different times.
 The right cannot be exercised to the fullest at the same time.

EXCEPTIONS: This doctrine is not applicable in following cases:

 This doctrine or section 48 does not apply when two interests do not conflict e.g when
property mortgaged to one and then sold to another.
 Prior transfer is invalid.
 If prior transfer deed is unregistered
 Subsequent transfer takes place by order of court.
  Subsequent transfer/ mortgage involves fraud, misrepresentation or negligence of prior
mortgagee (sec. 78).

CASE LAW
1 ICICI Bank Ltd. v. SIDCO Leathers Ltd. and ors. (PLD 2015 SC 101): In this case, the
Supreme Court of Pakistan held that the claim of the first charge holder shall prevail over the
second charge holder, and in case the debts are due to both the first charge holder and the
second charge holder to be realized from the property belonging to the mortgagor, the first
charge holder shall be repaid first.

2 Hafiz Md. Anwar v. Jaumna prasad Singh (PLD 2012 Lahore 1036): In this case, the
Lahore High Court held that if subsequent transactions have been entered into at different
times, then they would not confer any interest, right, or title. This is in accordance with
section 48 of the Transfer of Property Act.

SECTION 49 Transferee’s right under policy

This section protects the interest of the person who buys an immovable property that is
insured against fire damage.
It states that, If the property or any part of it is damaged by fire after the transfer, the
transferee can claim the money that the transferor receives from insurance company or as
much as is needed, to restore the property to its original condition.
This right is available to transferee unless there is a contract that says otherwise.

Example: If A sells his house to B for R.s 10 lakhs and the house is insured for R.s 15 lakhs
against fire damage, then if the house catches fire and is partially destroyed, B can ask A to
use the insurance money to repair the house, or to give him a part of it.
This way , B does not suffer any loss due to the fire.

However, If A and B have agreed in their contract that A will keep the insurance money in
case of fire, then B cannot claim it from A.

Example:- A sells a house to B. The house is insured against fire. After the transfer of
ownership, the house is damaged by fire. B can demand that A use the insurance money to
repair the house

ESSENTIALS:

 The property must be immovable property.

 The property must be insured against loss or damage by fire at the date of transfer.
 The property must be transferred for consideration or by a gift made with the intention that
the property be reinstated.
 The transferee must demand that the transferor use the insurance money to reinstate the
property.
 There must be no contract to the contrary.

If all of these essentials are satisfied, then the transferee has the right to require the
transferor to use the insurance money to reinstate the property.
PRINCIPLE: This section is based on the principle of equity and justice, and aims to
prevent any unfair advantage to the transferor or any hardship to the transferee.

CASE LAWS:

Case-1 Union of India v. J.K. Cotton Spg. & Wvg. Mills Co. Ltd. (AIR 1964 SC 1240)
Facts: The government transferred a cotton mill to a private company. The mill was insured
against fire. After the transfer, the mill was damaged by fire. The company demanded that
the government use the insurance money to repair the mill. The government refused to do
so, arguing that section 49 of the TPA did not apply to transfers made by the government.

Held: The Supreme Court held that section 49 of the TPA applied to all transfers of property,
including transfers made by the government. The Court also held that the government did
not have a valid reason for refusing to use the insurance money to repair the mill. The Court
ordered the government to use the insurance money to repair the mill.
Explanation: This case is important because it establishes that section 49 of the TPA applies
to all transfers of property, including transfers made by the government. It also clarifies that
the transferee's right to demand that the transferor use the insurance money to reinstate the
property is not absolute.

Case-2 Krishnaveni Ammal v. Subramaniam Chetty (AIR 1938 Mad 547)

Facts: A sold a house to B. The house was insured against fire. After the transfer of
ownership, the house was damaged by fire. B demanded that A use the insurance money to
repair the house. A refused to do so, arguing that he had already received the insurance
money and spent it.

Held: The Madras High Court held that the transferor was bound to use the insurance money
to reinstate the property, even if he had already received the money and spent it. The Court
also held that the transferee could recover the money from the transferor through a suit for
breach of contract.

Explanation: This case is important because it clarifies that the transferor is bound to use
the insurance money to reinstate the property, even if he has already received the money
and spent it. The transferee can recover the money from the transferor through a suit for
breach of contract.

Case-3 Girdhari Lal v. Kanhaiya Lal (AIR 1957 All 148)

Facts: A mortgaged a house to B. The house was insured against fire. After the mortgage,
the house was damaged by fire. B demanded that A use the insurance money to repair the
house. A refused to do so.

Held: The Allahabad High Court held that section 49 of the TPA applied to mortgages of
immovable property. The Court also held that the mortgagee had a right to demand that the
mortgagor use the insurance money to reinstate the property, even if there was no contract
to the contrary.
SECTION: 50 Rent bona fide paid to holder under defective title:
No person shall be chargeable with any rents or profits of any immovable property, which he
has in good faith paid or delivered to any person of whom he in good faith held such
property, not withstanding it may afterwards appear that the person to whom such payment
or delivery was made had no right to receive such rents or profits.

This section deals with a situation where a person pays rent of profits of an immovable
property to another person who he believes to be rightful owner of that property, but later it
turns out that the person who received the payment had no right to do so.
In such as case, the person who paid the rents or profits is not liable to pay again to actual
owner of the property.
Provided that he acted in good faith and without notice of the defect in the title of the person
who received the payment.

EXAMPLE:
A tenant rents a house from a landlord and pays rent to him every month. The landlord then
sells the house to another person without informing the tenant. The tenant continues to pay
rent to the original landlord, unaware of the sale of the house. The new owner of the house
demands that the tenant pay rent to him instead.

In this case, the tenant is protected by Section 50 of the Transfer of Property Act, 1882. The
tenant is not liable to pay rent to the new owner until he has been informed of the sale of the
house and has had a reasonable opportunity to start paying rent to the new owner.
The real owner of the house would need to sue the person who is paid by the tenant in order
to get their money.

ESSENTIALS:

 The tenant must have paid rent to their landlord in good faith.
 The landlord must not have the legal right to receive the rent
 The tenant must have been in possession of the property.

PRINCIPLE: This section is based on the principle of equity and justice and it protects the
interests of bonafide tenant.
Thus, this section is important safeguard for tenants. It helps to ensure that tenants are not
penalized for their landlord’s mistake and that landlord’s are accountable to their tenants.

CASE LAWS
Case 1: Amulya Ratan Bose v. Sm. Kamala Bose (AIR 1953 SC 107)
Facts:
Amulya Ratan Bose was a tenant of a property owned by Kamala Bose. Amulya Ratan Bose
paid rent to Kamala Bose every month. However, Kamala Bose did not have a good title to
the property. The real owner of the property was another person.
One day, the real owner of the property demanded that Amulya Ratan Bose pay rent to him
instead of Kamala Bose. Amulya Ratan Bose refused, arguing that he had already paid rent to
Kamala Bose.
Issue:
Whether Amulya Ratan Bose was liable to pay rent to the real owner of the property.
Judgment:
The Supreme Court of India held that Amulya Ratan Bose was not liable to pay rent to the
real owner of the property. The court reasoned that Section 50 of the Transfer of Property
Act, 1882 protects tenants who have paid rent in good faith to a landlord who does not have
the legal right to receive it.

Case 2: M/s. N.L. Dalmia v. M/s. Hari Das Girdhari Lal (AIR 1962 SC 1785)
Facts:
M/s. N.L. Dalmia was a tenant of a property owned by M/s. Hari Das Girdhari Lal. M/s. N.L.
Dalmia paid rent to M/s. Hari Das Girdhari Lal every month. However, M/s. Hari Das Girdhari
Lal did not have a good title to the property. The real owner of the property was another
person.

One day, the real owner of the property demanded that M/s. N.L. Dalmia pay rent to him
instead of M/s. Hari Das Girdhari Lal. M/s. N.L. Dalmia refused, arguing that they had already
paid rent to M/s. Hari Das Girdhari Lal.
Issue:
Whether M/s. N.L. Dalmia was liable to pay rent to the real owner of the property.
Judgment:
The Supreme Court of India held that M/s. N.L. Dalmia was not liable to pay rent to the real
owner of the property. The court reasoned that Section 50 of the Transfer of Property Act,
1882 applies even if the tenant has paid rent to a landlord who is not the legal owner of the
property, but who is in possession of the property with the consent of the legal owner.

Case 3: Kaveriamma v. Lingappa (ILR 33 Bom 96)

Facts:
Kaveriamma was a tenant of a property owned by Lingappa. Kaveriamma paid rent to
Lingappa every month. However, Lingappa died without leaving a will. His heirs disputed the
ownership of the property.
Kaveriamma continued to pay rent to one of the heirs. However, the other heirs demanded
that Kaveriamma pay rent to them instead. Kaveriamma refused, arguing that she had
already paid rent to one of the heirs.
Issue:
Whether Kaveriamma was liable to pay rent to the other heirs.
Judgment:
The Bombay High Court held that Kaveriamma was not liable to pay rent to the other heirs.
The court reasoned that Section 50 of the Transfer of Property Act, 1882 is not confined to
cases of transfer, but also applies to cases of succession.
SECTION: 51 Improvements made by bona fide holders under
defective titles:

When the transferee of immovable property makes any improvement on the property,
believing in good faith that he is absolutely entitled thereto, and he subsequently evicted
therefrom by any person having a better title, the transferee has a right to require the
person causing the eviction either to have the value of the improvement estimated and paid
or secured to the transferee, or to sell interest in the property to the transferee at the then
market value thereof, irrespective of the value of such improvement.

The amount to be paid or secured in respect of such improvement shall be the estimated
value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the
property crops which are growing when he is evicted therefrom, he is entitled to such crops
and to free ingress and egress to gather and carry them.(Bare act language)
EXPLANATION:
This section deals with the rights of a transferee of immovable property who makes
improvements on the property in good faith, believing himself to be the absolute owner, but
is subsequently evicted by a person having a better title.
The section provides that the transferee has a right to require the person causing the
eviction either to have the value of the improvement estimated and paid or secured to the
transferee, or to sell his interest in the property to the transferee at the then market value
thereof, irrespective of the value of such improvement.

Here are some examples of cases where Section 51 has been applied:
EXAMPLE-1 A person buys a piece of land from a person who is not the rightful owner.
The buyer makes improvements on the land, such as building a house. The rightful owner
then evicts the buyer. The buyer is entitled to claim the value of the improvements from the
rightful owner under Section 51.
EXAMPLE-2 A person builds a house on a piece of land which he believes is his own, but
it is actually government land. The government then evicts the person from the land. The
person is entitled to claim the value of the house from the government under Section 51.
ESSENTIALS:

 The transferee must have made the improvements in good faith. This means that the
transferee must have believed that he is the absolute owner of the property at the time
when he made the improvements.
 The transferee must have made the improvements believing that he is authorized to
make such improvements. This means that the transferee must have believed that he has
the right to make changes to the property.
 The transferee must be compensated for the value of the improvements. The
compensation is calculated based on the difference in the value of the property before
and after the improvements were made.

The term "improvements" under Section 51 is not defined, but it has been interpreted to
include any addition or alteration to the property which enhances its value. It can include
construction of buildings, roads, irrigation channels, etc., as well as repairs and renovations.
 The right of the transferee under Section 51 is a personal right and cannot be transferred to
another person. Therefore, it can also be waived by the transferee.

PRINCIPLE:
This section is a salutary provision which protects the interests of bona fide transferees who
make improvements on property in the belief that they are the absolute owners. It also helps
to prevent unjust enrichment of the person who evicts the transferee.

This section lays down an equitable principle and enables a court to determine the equities
between the parties and is based on the equitable maxim: “He who seeks equity, must do
equity”

EXCEPTIONS:

 The transferee is an encroacher. An encroacher is a person who occupies land without

the consent of the owner. If an encroacher makes improvements on the land, he is not
entitled to claim the value of the improvements from the owner if he is evicted.
 The transferee made the improvements in bad faith. If the transferee knew that he
was not the absolute owner of the property at the time he made the improvements, he is not
entitled to claim the value of the improvements from the person who evicts him.
 The transferee has waived his right under Section 51. The transferee can waive his
right to claim the value of the improvements from the person who evicts him by signing a
written waiver.
 The improvements are illegal or unauthorized. If the improvements are illegal or
unauthorized, the transferee is not entitled to claim the value of the improvements from the
person who evicts him.
CASE-1 Baini Prasad v. Durga Devi (2023)
Facts:
Baini Prasad was a tenant of a piece of land owned by Durga Devi. Baini Prasad encroached on the
land and built a structure on it. Durga Devi sued Baini Prasad for possession of the land and
demolition of the structure.
Issue:
Whether Baini Prasad was entitled to be compensated for the value of the structure he had built on
the land.
Judgment:
The Supreme Court of India held that Baini Prasad was not entitled to be compensated for the value
of the structure he had built on the land. The court reasoned that Baini Prasad was an encroacher and
did not have any legal right to make improvements on the land.The court also held that Section 51 of
the Transfer of Property Act, 1882 does not apply to encroachers. Section 51 only applies to
transferees of immovable property who make improvements in good faith and believing that they are
the absolute owners of the property.
Conclusion:
The case of Baini Prasad v. Durga Devi (2023) is a landmark case that clarifies that encroachers are
not entitled to be compensated for the value of the improvements they make on the land. This case is
an important reminder that encroachers do not have any legal rights to the land they encroach upon.
CASE-2 Madanappa v. Venkatesha (1967)
Facts:
The plaintiff, Madanappa, purchased a piece of land from the defendant, Venkatesha, in 1958. The
defendant was not the rightful owner of the land, but the plaintiff was unaware of this fact. The
plaintiff made improvements on the land, such as building a house and planting trees. In 1962, the
rightful owner of the land, Ramaswamy, evicted the plaintiff
Issue:
Whether the plaintiff is entitled to claim the value of the improvements he made on the land from the
defendant under Section 51 of the Transfer of Property Act, 1882.
Held:
Yes. The Supreme Court held that the plaintiff is entitled to claim the value of the improvements he
made on the land from the defendant under Section 51 of the Transfer of Property Act, 1882. The
court observed that the plaintiff was a bona fide transferee who made the improvements in the belief
that he was the absolute owner of the land. The court also observed that the defendant was guilty of
misrepresentation, as he had sold the land to the plaintiff without disclosing that he was not the
rightful owner.
Significance:
This case law is significant because it reaffirms the principle that Section 51 of the Transfer of
Property Act, 1882 is intended to protect bona fide transferees who make improvements on property
in the belief that they are the absolute owners. The case law also emphasizes the importance of
disclosure by transferors.

CASE-3 Bodi Reddy v. Venkatarami Reddy (1970):

In this case, the Supreme Court held that the right of the transferee under Section 51 is a personal
right and cannot be transferred to another person.

CASE-4 Venkateswarlu v. Sesha Reddi (1991):

In this case, the Supreme Court held that the transferee under Section 51 is entitled to the value of
the improvements at the time of eviction, and not at the time of making the improvements.

CASE-5 Ram Mohan Rao v. State of Andhra Pradesh (2007):

In this case, the Supreme Court held that the transferee under Section 51 is not entitled to claim the
value of the improvements if he has made them in bad faith.

SECTION 52 Transfer of property pending suit relating thereto:

During the pendency in any Court having authority in Pakistan, or established beyond the
limits of Pakistan by the Federal Government, any suit or proceeding which is not collusive
and in which any right to immovable property is directly and Specifically in question, the
property cannot be transferred to otherwise dealt with by any party to the suit or proceeding
so as to affect the rights of any other party thereto under decree or order which may be
made therein, except under the authority of the Court and on such terms as it may impose.

PURPOSE
The purpose of Section 52 of the Transfer of Property Act, 1882 is to prevent the parties to a
lawsuit from alienating the property in question during the pendency of the suit, so as not to
prejudice the rights of the other party.

This section, 52, is based on the doctrine of Lis-Pendens.

DOCTRINE OF LIS PENDENS ( SECTION 52)

The word Lis-pendens is a Latin word and a combination of two words:
Lis = legal action
Pendens = pending suit
The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine, 1857

The doctrine of lis pendens is a legal principle that states that once a lawsuit is filed over a
piece of property, the property is considered to be under the jurisdiction of the court until the
lawsuit is resolved. This means that neither party to the lawsuit can sell or transfer the
property without the court's permission.

The doctrine of lis pendens is based on the Latin principle of "pendente lite nihil
innovetur," which means that nothing new should be introduced during the pendency of a
lawsuit. The doctrine is also based on the principle of public policy, which dictates that the
court should have the ability to control the property that is the subject of the lawsuit (sub
judice) .

The doctrine of lis pendens is designed to protect the interests of both parties to the lawsuit.
It prevents one party from selling or transferring the property and depriving the other party
of their potential recovery. It also prevents one party from selling or transferring the property
to a third party in order to avoid the lawsuit.

The doctrine of lis pendens applies to all types of lawsuits involving property, including real
estate disputes, foreclosure lawsuits, and eviction lawsuits.

EXAMPLES WHERE LIS PENDENS MAY APPLY

If a person files a suit for declaration of title to a property and the suit is pending, the person
cannot sell the property to another person without the permission of the court.

If a tenant is evicted from a property by the landlord and the tenant files a suit for
possession, the landlord cannot lease the property to another tenant while the suit is
pending.

If a co-owner of a property files a suit for partition, the other co-owner cannot sell his or her
share of the property to another person while the suit is pending.

ESSENTIAL CONDITIONS

 There must be a pending suit or proceeding in a court of competent jurisdiction.

 The suit or proceeding must relate to immovable property situated in India.
 The right to the immovable property must be directly and specifically in question in the
suit or proceeding.
 The transfer of the property must be by a party to the suit or proceeding.
 The transfer must be made during the pendency of the suit or proceeding.

If all of these conditions are satisfied, then the doctrine of lis pendens will apply to the
transfer, and the transferee will be bound by the outcome of the suit or proceeding.
.
IMPORTANCE
The doctrine of lis pendens can have a significant impact on the sale or transfer of property.
Once a lis pendens is filed, it is very difficult to sell or transfer the property without the
court's permission. If you are considering selling or transferring property that is subject to a
lis pendens, you cannot till the announcement of final decree.

EXCEPTIONS
The doctrine of lis pendens does not apply to transfers that are made with

Transfers made with the court's permission.

Transfers made in execution of a court decree.
Transfers made to a bona fide purchaser without notice of the pending lawsuit.(Transfers
that are made to a person who bought the property without knowing that there was a
pending lawsuit involving the property)
Transfers Pendente Lite are not void

CASE LAW
Justice Turner established the doctrine of ‘Lis Pendens’ in Bellamy vs. Sabine. It means
that while the case is Pendente Lite (Pending), neither party can transfer the property in
issue in such a way that it adversely affects the rights of his opponents.

Case 1 Bellamy v. Sabine, (1857) 1 De G&J 566

Facts:
E sold a piece of land to S.
E's son, F, as heir of E, sued S in a competent court to set aside the sale.
Pendente lite (i.e., during the pendency of the suit), S sold the property to B, who took
without notice of the lis pendens.
Issue:
Whether B was bound by the decree in the suit between F and S.
Held:
Yes. The court held that B was bound by the decree. The court reasoned that the doctrine of
lis pendens is a rule of public policy, and that it is intended to protect the rights of parties to
a lawsuit. The court further observed that the doctrine of lis pendens binds all persons who
have notice of the pending suit, even if they are not parties to the suit.
Significance of the case:
The case of Bellamy v. Sabine is a landmark case on the doctrine of lis pendens. It
established the principle that the doctrine of lis pendens binds all persons who have notice of
the pending suit, even if they are not parties to the suit. This principle is important because it
protects the rights of parties to lawsuits and ensures that the courts are able to effectively
enforce their judgments.

Case-2 Shahbaz Khan v. Abdul Haque (PLD 1973 SC

288)
Facts:
Shahbaz Khan filed a suit against Abdul Haque claiming ownership of a piece of land.
During the pendency of the suit, Abdul Haque transferred the land to a third party,
Muhammad Ali.
Shahbaz Khan won the suit, and obtained a decree of possession of the land. However,
Muhammad Ali refused to vacate the land, on the ground that he was a bona fide purchaser
for value without notice of the pending suit.
Issue:
Whether the doctrine of lis pendens applied to the transfer of the land to Muhammad Ali.
Judgment:
The Supreme Court of Pakistan held that the doctrine of lis pendens applied to the transfer of
the land to Muhammad Ali, and that he was bound by the decree passed in the suit against
Abdul Haque. The court observed that the doctrine of lis pendens is a rule of public policy,
and that it is intended to protect the rights of parties to a lawsuit. The court further observed
that the doctrine of lis pendens binds all persons who have notice of the pending suit, even if
they are not parties to the suit.

Case-3 Muhammad Ali v. Abdul Ghafoor (PLD 1975 SC 313)

Facts:
Muhammad Ali filed a suit against Abdul Ghafoor claiming ownership of a piece of land.
During the pendency of the suit, Abdul Ghafoor transferred the land to a third party,
Muhammad Siddique, with the permission of the court.
Muhammad Ali won the suit, and obtained a decree of possession of the land. However,
Muhammad Siddique refused to vacate the land, on the ground that the transfer of the land
was made with the permission of the court.
Issue:
Whether the doctrine of lis pendens applied to the transfer of the land to Muhammad
Siddique.
Judgment:
The Supreme Court of Pakistan held that the doctrine of lis pendens did not apply to the
transfer of the land to Muhammad Siddique, as the transfer was made with the permission of
the court. The court observed that the doctrine of lis pendens is not applicable to transfers
made with the permission of the court, as the court is presumed to have acted in the best
interests of the parties to the lawsuit.

Case-4 Abdul Waheed v. Muhammad Ali (PLD 1978 Kar 243)

Facts:
Abdul Waheed filed a suit against Muhammad Ali claiming ownership of a piece of land.
During the pendency of the suit, Muhammad Ali transferred the land to a third party,
Muhammad Yaqoob, for value without notice of the pending suit.
Abdul Waheed won the suit, and obtained a decree of possession of the land. However,
Muhammad Yaqoob refused to vacate the land, on the ground that he was a bona fide
purchaser for value without notice of the pending suit.
Issue:
Whether the doctrine of lis pendens applied to the transfer of the land to Muhammad Yaqoob.
Judgment:
The Sindh High Court held that the doctrine of lis pendens did not apply to the transfer of the
land to Muhammad Yaqoob, as he was a bona fide purchaser for value without notice of the
pending suit. The court observed that the doctrine of lis pendens is not applicable to
transfers made to bona fide purchasers for value without notice of the pending suit.

Case-5 Muhammad Siddique v. Muhammad Yaqoob (PLD 1983 SC 472)

Facts:
Muhammad Siddique filed a suit against Muhammad Yaqoob claiming ownership of a piece of
land.
During the pendency of the suit, the government acquired the land under a statutory
provision.
Muhammad Siddique won the suit, and obtained a decree of possession of the land. However,
the government refused to hand over the land to Muhammad Siddique, on the ground that
the land had been acquired under a statutory provision.
Issue:
Whether the doctrine of lis pendens applied to the acquisition of the land by the government
under a statutory provision.
Judgment:
The Supreme Court of Pakistan held that the doctrine of lis pendens was not applicable to the
acquisition of the land by the government under a statutory provision. The court observed
that the doctrine of lis pendens is not applicable to transfers made under a statutory
provision.

SECTION 53 Fraudulent transfer

Fraud: Definition of Fraud as per section 17 of Indian contract act:
Intention to deceive
Promise without intention to perform
Active concealment of fact by having knowledge.

As per section 25 of Pakistan Penal code: A person is said to do a thing fraudulently if:
he does that thing with intent to defraud but not otherwise.

As per section 53 of Transfer of property act: A transfer of immovable property is

fraudulent when it is made :
with intent to defeat or delay the creditors of the transferor shall be voidable at the option of
those creditors.
Without consideration with the intent to defraud a subsequent transferee shall be voidable at
the option of such transferee.

EXAMPLE: A transferred his property to B secretly and without consideration.

Subsequently the same property, which was transferred to B, is transferred to C with
consideration .
If C approaches the competent court and claim the possession of property. It will be difficult
to handover the possession of property to C because the defendant will take the benefit of
section 48 of the act i.e doctrine of priority ( whoever is earlier in time is stronger in law).
C can avail damages by filing the suit of fraud under section 53 against the transferor, A.

PURPOSE:
The purpose of Section 53 of the TPA is to protect creditors from being cheated by debtors
who are trying to avoid paying their debts.

DOCTRINE OF FRAUD:
It states that any transfer of immovable property made with the intent to defeat or delay the
creditors of the transferor shall be voidable at the option of any creditor so defeated or
delayed.
In other words, if a person transfers their property to another person with the intention of
preventing their creditors from collecting their debts, the transfer can be declared invalid by
a court.

ESSENTIALS
In order for a transfer to be considered fraudulent, the following elements must be present:
The transfer must be made with the intent to defraud creditors.
Consideration is not adequate
The person seeking to set aside the transfer must be a creditor of the transferor.
Trnasfer is made secretly
Debtor sold everything nothing keeping nothing to himself

Examples of fraudulent transfers:

A debtor transfers all of their assets to a family member or friend shortly before filing for
bankruptcy.
A debtor transfers property to a shell company in order to conceal it from creditors.
A debtor sells property for a price that is significantly below its market value.

Remedies for fraudulent transfers:

If a creditor believes that a transfer is fraudulent, they can take a number of steps to protect
their rights, including:
Filing a lawsuit to set aside the transfer.
Obtaining a charging order against the property.
Filing a bankruptcy petition against the debtor.

Defenses to fraudulent transfer claims:

There are a number of defenses that can be raised to a fraudulent transfer claim, such as:
The transfer was made for a valuable consideration.
The transfer was made in the ordinary course of business.
The transferee was a bona fide purchaser for value without notice of the transferor's intent to
defraud creditors.

CASE LAWS:
Case-1 Muhammad Rashid v. Muhammad Iqbal (PLD 1961 Lah 371)
Facts:
The plaintiff, Muhammad Rashid, was a creditor of the defendant, Muhammad Iqbal.
The defendant transferred a piece of land to his wife shortly before filing for bankruptcy.
The plaintiff filed a suit to set aside the transfer of the land, alleging that it was made with
the intent to defraud creditors.
Issue:
Whether the transfer of the land was made with the intent to defraud creditors.
Held:
The Lahore High Court held that the transfer of the land was made with the intent to defraud
creditors. The court noted that the defendant had transferred the land to his wife shortly
before filing for bankruptcy, and that the transfer had the effect of making it more difficult for
the plaintiff to collect the debt that was owed to him. The court therefore set aside the
transfer of the land.

Case-2 Muhammad Nawaz Magsi v. Muhammad Siddique ( PLD 1970 SC

63)
Facts:
The plaintiff, Muhammad Nawaz Magsi, was a creditor of the defendant, Muhammad
Siddique.
The defendant sold a piece of land to a third party, Muhammad Aslam.
The plaintiff filed a suit to set aside the sale of the land, alleging that it was made with the
intent to defraud creditors.
Issue:
Whether the sale of the land was made with the intent to defraud creditors.
Held:
The Supreme Court of Pakistan held that the sale of the land was not made with the intent to
defraud creditors. The court noted that the defendant had sold the land for a fair price, and
that there was no evidence that the defendant had intended to avoid paying his debts. The
court therefore dismissed the plaintiff's suit.

Case: Fecto Belarus Tractor Ltd. v. Muhammad Aslam (PLD 2005 SC

605)
Facts:
The plaintiff, Fecto Belarus Tractor Ltd., was a creditor of the defendant, Muhammad Aslam.
The defendant transferred a piece of land to his son shortly before filing for bankruptcy.
The plaintiff filed a suit to set aside the transfer of the land, alleging that it was made with
the intent to defraud creditors.
Issue:
Whether the transfer of the land was made with the intent to defraud creditors.
Held:
The Supreme Court of Pakistan held that the transfer of the land was not made with the
intent to defraud creditors. The court noted that the defendant had transferred the land to
his son in order to provide for his son's future, and that there was no evidence that the
defendant had intended to avoid paying his debts. The court therefore dismissed the
plaintiff's suit.