Você está na página 1de 17

TOPA 11/07/2017

Section 52 (easement Act) License and Lease (section 115 of TOPA)

Def of lease given in section 115 :

there is always a lease of immovable prop

Who all are the parties and what are the essential conditions, (105 of TOPA) lease of immovable

pro is right to enjoy over that prop and the person who is granting such right is lessor and to

whom it is granted is lessee, and the consideration can be paid at any time, if there is standing

debt and you are paying debt in premium, and if you agree to pay periodically it is called rent

For the time period of debt, specified period of time, and for perpetuity also, lease is possible Commented [SS1]: What?


Lease is an interest in the prop, interest is attached to the property, it is not just the outcome of

the relationship between the parties (in license mere permission is sufficient, right in

personam,) whereby Right created by the lease is right in rem and can be transferred and can be

inherited within the stipulated period of time of lease but transfer cannot be beyond 10 years.

In case of inheritance if the lease is for life, of the grantee and that will expire after the death of

the grantee, and cannot be inherited after the lifetime of the grantee.

If the case is of testamentary disposition if the landlord is not willing to accept then he has the

option of not respecting and accepting the inheritance, and he can object if it is inherited by some

stranger and this objection is valid

Absolute leaseif I am the absolute owner and I can give the right to enjoy the prop and

Derivative leasethe person whom I have granted the right of enjoyment transfers that right for

five years further, also known as sub lease.

Types of lease

Lease for a fixed period

Periodic lease

Rental lease

Lease in perpetuity


Registration is compulsory one exception is if the lease is granted for a period less than

12 months, no requirement of registration in license.

In case of license no interest is created in favour of the licensee but in lease it is created

in favour of lessee

License cannot be transferred; sub lease is permissible in case of lease.

License can be withdrawn at any time

Lease is remains unaffected by the sale of property before the expiry of the lease, I will

still continue to the tenant till the expiry of leas in case of license, if the prop is sol to

someone else license will come to an end.

Right to protect the prop which is in possession of the lessee, for eg suit against a

trespasser can be filed by the lessees in his own name, however license cannot do so

Lessee can make improvements in the prop, licensee cannot make improvement

Hotel, barber allotted a room for running a barber shop, issue Iis whther this permission is

license of lease.barber agreed for fxation of the rentqustion of rent only arises in lease, if it

is license, no rent come in to picturenomentclature he obtained this position wherein it was

titled as the license deedhwetehr it is a lease of license deed

He was allowed to conduct the business for period of 1 year, he had to pay the rent and also

given option to renew the deed after the expiry, again agree on the conditions mutually, he had to

pay for electricity and water usage separate billagain he cannot make any alterations without

the consent of granter and on failure to comply the conditions granter had the right to cancel the

license deed.

Ratio: there was no intention to create a tenancy in favor of barber, it is a license. 4 Tests

laid down:

(1) To ascertain whether a document creates a licence or lease, the substance of the document

must be preferred to the form ;

(2) the real test is the intention of the parties-whether they intended to create a lease or a licence;

(3) if the document creates an interest in the property, it is a lease; but, if it only permits another

to make use of the property, of which the legal possession continues with the owner, it is a

licence; and

4) if under the document a party gets exclusive possession of the property, prima facie, he is

considered to be a tenant; but circumstances may be established which negative the intention to

create a lease.
Importance had to be the substance rather than terminology


There was dept.al service store(DSS)service scheme everything under one umbrellaone

shopping complexcustomers could by multiple commodities shops along with furniture,

Cupboard etc. were provided to the trader and given the right to trade in a particular commodity,

However were not allowed to change the structure of the buildingone entry for the place and

during lunch(12-3.00PM) everyone was supposed to go out and take lunch no one was allowed

to stay backthey requested to change and reduce the lunch break, so that traders can invest

more time in businessauthorities realized that since there was no increase in sale on account of

the decrease in the lunch periodthey returned back to the original time---

Ratio: Authorities had vast controltraders were not allowed even to change the structure

of the propeverything was provided by the DSSabsolute control over the shophence

it is a license.


Right cannot be restricted abruptly without notice, license will always be advantageous to the

other side.

There were two parties: licensor and licensee: agreement named as a license deed. The parties

agreed for the payment of a rent. Licensee had to pay the licensor. Condition- if the licensee had

to sub-let, he had to take the permission of the licensor. Second condition- the premises could not

be left vacant for a period more than 3 months.

Is it a license?
Ratio: Apply the 4 step test. After applying the 4 step test we will reach the conclusion that

the said document will qualify as a lease and not a license.


1) It can be of immovable and movable property.

2) 2 Parties: Donor and done;

3) donor must be competent to enter into contract. No such requirement for a donee.

4) Gift must be for the lifetime of the parties.

5) The only condition for donee is that he must be in existence and accepted by him.

6) There must not be any consideration. It must be voluntary, without any coercion and


7) Also, the property must be in existence, i.e., it must not be a future property.

S. 122- The done must be an ascertainable person. A gift to an idol is not possible, but it is not

made invalid. Property can be given in form of a trust to the pujari. The gift is complete when it

is accepted by the donee. If the donee is a minor, it can be accepted on his behalf by some other

party. However, if the donee dies before attaining majority, the gift becomes void.

S. 126- When a gift may be suspended or revoked- on the happening of a contingency, may be

certain or uncertain, which is not in control of donor. In such a situation, the gift deed stands to

be suspended. Eg. Condition is that if the donor comes back the property will revert back to me.

Such a contingency is not valid as the donor is still in control.

The gift is revoked if it is part of a contract. In such a scenario, it is deemed to be rescinded. The

case on this point is tila bewa v. mana bewa (discussed below)


Property was owned by a 70 year old widow. She had a daughter who used to take care of her. 1

day, the daughter was away for some urgent work. During that time, her husbands relative came

and took her to a distant place in the pretext that they are taking her to a place for a better

treatment. There they made the widow sign a document which was actually a gift deed. The same

was registered. Claim was made the daughter. In the meantime, the widow died. The matter

continued, and the court reached the conclusion that the relatives failed to prove that the

document was signed without any undue influence. They failed to prove the voluntariness of the

donor and hence the gift was declared invalid.

Ratio- the physical act of signing must accompany the intention of signing that document.

Since, the same was absent in the case at hand, the gift deed was declared to be invalid.


Fact: a property was given by a lady to a daughter in law who was not the daughter in law (at the

time of giving the gift. The gift was given on the condition that the daughter in law will marry

the son and stay with them and take care of them for the lifetime of the lady. The daughter in law

complied. Soon, the husband died and the daughter in law went back to her maternal home. The

lady objected on ground of violation of a condition.

Ratio: as there was no revocation clause, the gift deed could not be revoked.




Lis: an action or a suit

Pendens: pending

The meaning of phrase is if the suit is pending then court has power to take action a pending suit.

Nt lite pendent nihil innovator: No new right can be introduced during pendency.

Transfers relating to suit property are prohibited under section 52 during the pendency of the suit

when the suit is related to the right in the property or related to the dispute in transfer of property.

Example: A gave B the permission to reside in his property. B sold prop to C. During this time A

wanted to have possession of property back. He filed the suit. He failed to implead C. In the

meantime, after filing of suit, C took over the possession.

Question: whether A has to file a fresh suit against C to take the possession back or the judgment

in favor of A is binding on C.

Suppose if the suit is decided in favor of A, the possession of prop is with C, meanwhile, when

C knows that a case will be filed against him, he executes a sale deed in favor of D.

Rationale: This doctrine is applicable on the ground of equity and this doctrine provides

exception no right arises in a property when the suit is going on that property to achieve the ends

of justice and put end to litigation,


A litigation should be pending in a court of competent(pecuniary, territorial) jurisdiction:


Suit must be in relation to specific immovable property.

Suit should not be collusive.

Should must be related to specific right in immovable property

Property should not be transferred or dealt with by any part to the suit so as to affect the

rights of any party till the final disposal of the case.

Pendency: Pendency is commencement till the end. End means the final disposal of a case,

when the decree of the case is given by the court. Commencement of the suit is since the date

of filing of plaint has been filed before the court of competent jurisdiction.

Collusive suit: the proceeding must be genuine one. Collusive suit means a suit on

conspiracy or a sham proceeding. If it is a collusive suit, then transfer during pendency shall

not be hit by doctrine of lis pendens.

Notice: With respect to notice, Section 52 is rule of expediency, which is why we do not

allow the transferee to say that he did not have the notice of the pendency of the suit. Rule

expressly any transfer. There is requirement of notice in two states Gujarat and Maharashtra.

It is mandatory for a party initiating a litigation to get a notice registered to make any

transferee aware of the pending suit.

Competency of Court: Court must have the territorial, pecuniary; subject matter jurisdiction

to try the matter otherwise there is not application of the doctrine- Govind Pillai Gopala Pillai
v. Ayyapan Krishnan. In this case, the court did not have pecuniary jurisdiction to try the

case. Hence, the doctrine of lis pendens was not attracted.

Specific Right: there are three incidents of ownership (title, possession and alienation) for the

doctrine to be applicable the suit must be in relation to any of the three rights. Not applicable

on suit of maintenance of the property or collecting rent or in connection with movables.


Where there is a transfer during a pendency of litigation, then the discretion of court will come

into picture. P and D had a dispute regarding a joint family property. Suit for partition was filed.

P argued that some of the property was not included as a joint family property in the settlement

deed. D accepted this contention and a compromise was struck between the parties. The property

which was not incorporated in joint family property was to be shared. However, while the suit

was going on, the unincorporated property was given as a gift to the grandson.

Issue- Whether this gift was subject to the rule of lis pendens?

Held- Transfer was held to be valid as the transfer deed was executed before the filing of the


Issue- Deed executed before the filing of the suit but registered after the filing of the suit.

Held- The process of acquisition was dividing into various parts. There is no application of lis

pendens if the transfer took place through a properly executed deed. In the present matter, the Commented [SS2]: Executed not registered.

deed was properly executed. Relied on: Supreme General Films v. Brij Nath Deo.

Money (2.5 Lakhs) borrowed on security. Security was not sufficient. Hence, the theatre was

mortgaged. He was unable to repay the loan. The other party filed a suit against him in 1954. In

1960, the parties reached a compromise. As per the compromise, the theatre was to be sold and

the loan amount was to be realized from the proceeds from sale. There was another problem. The

theatre was occupied by a tenant from 1940. The lease that was held by the tenant was

unregistered and it expired in 1946. From 1946-1956, there was no lease in favor of the tenant. In

1956, the tenant filed a suit against the owner of the property for the specific performance of

contract. The owner of the property executed a registered deed in favor of the tenant for 8 years

with the option of renewal till 1970.

Issue- Whether there was a suit pending wrt to the theatre when the deed was executed

with the tenant?

Arguments from the tenant- There was an already existing agreement. Hence, the tenant was

claiming an antecedent right. Thus, there was a continuation of that antecedent right. The court

observed that the tenant was pleading with a document which was not valid in the eyes of the

law. Hence, the doctrine of lis pendens will come into force.

General Rule- partial acquisition before the filing of the suit and partial acquisition after the

filing of the suit will not be hit by lis pendens if there is proper document.


Issue: Whether a transferee pendent lite could be impleaded as a party to the original suit.
General Rule- S. 52 makes it unnecessary to implead transferee pendent lite as a party. But if

the court thinks that it is necessary to implead him as a party for his own interest, the TPL can be

impleaded as a party.

Exception- This usually happens in situations when the court is of the opinion that the defendant

will not take the case seriously as he has nothing to lose. In such a scenario, TPL is made a party

as he will fight for his interests more seriously. The exception is made to protect the interests of

TPL, so as to provide him with a fair opportunity in the interests of justice, equity and good



Facts: Partition of property by Karta.

Issue: Whether doctrine of lis pendens will come in case of partition?


Issue: Whether partition comes under the ambit of Otherwise dealt in under S. 52.


Importance of otherwise dealt with in S. 52.

Partition does not amount to transfer. Though it is settled that partition does nto amount to

transfer, partition involves transfer of certain rights. Hence, it can come under the ambit of

otherwise dealt with under S. 52. Hence, lis pendens will be attracted.

*Something about personal liability and share- do a ctrl+F from the judgment* Commented [SS3]: Not very important.
Syllabus of End term:

Transfer of Prop Act: Section 3: doctrine of notice, fixtures and attestation,

Section 5: (distinction between movable and immovable property, standing timber and ),

Sections 6(a), 43, differences, how to decide whether 6(a) applicable or 43

Sections:10, 11,

Sections: 12-20,

Section : 52(lis pendens),

Section: 58(mortgage),ClassificTION, right of redemption of mortgagor, right of foreclosure of

the mortgagee, Doctrine of Clog on Redemption.

105(lease), 122, 126(gift)

Equity: Definition, ingredients, maxims on equity(14), equitable releifs (Specific relief Act)

Easement Act, What is it, Ways of Creation Eaesment, Diff between easement and license

Indian Trust Act: what is trust, rights and liabilities of trustee,

Registration Act: purpose of Registration, doc fo which it is compulsaory and for which it not

and if you are not registering what are the consequnces.

Stamp Act : purpose of the stam act, types, meaning of duly stamped, consequences of not duly


One question from all these topics.


Section 58: different types of Mortgage

Right of redemption and foreclosure

Long term mortgages what are the condion, which can be construed as clog ?


Transfer of interest in immovable prop:TOPA, mortagae of immovable prop

Ownership comprises of bundle of rights,(three rights, title, enjoyment, alienation)

Purpose of the transfer of the interest: securing debt, or the as security for loan

Mortgagor: the person who transfers the interest in the property.

Mortgagee: person who gets the interest in the property

Mortgaged deed: deed which tranfers the interest in property to Mortgagee.

Mortgage Money: consideration


Simple: in general mortgage no personal liability on the mortgagor, but in simple he has the

personal liability to repay the debt. In general mortgage, on the event of non-payment, mortgaee

has the right to proceed against the mortgager in court and can realise the money by selling the

property. In simple mortgage, he can obtain a decree in favour of the mortgagor and he has the

option to choose whether to proceed against the prop or mortgagor.

Conditional Sale the mortgagor ostensible sells the prop to mortgagee on some condition, if he is

not paying the debt and the sale becomes absolute and if he repays the debt the sale becomes the

void and if he repays the mortgagee has to return the prop to mortgagor. No personal obligaton,

so only option left to mortgagee is to proceed against the prop

Usufructary Mortgage: meaning of term is benefit. transfer the position the property to

mortgagee. No personal obligation, on repayment you get the position back

Mortgage by deposit of Title deeds: this is not possible everywhere in India, Madras Bombay

Calcutta, Shimla; this type of mortgage is possible. Title deeds are deposited as a security of loan

and on repayment you will get the title deed back.

English Mortgage/ equitable mortgage: absolute transfer of the prop in favour of Mortgagee

with a proviso on the event of the repayment on the date and time fixed for repayment, prop will

be duly returned to the mortgagor. No right of sale. Mortgagee has to return the prop when there

is repayment of debt.

Anamolous Mortgage: other than aforementioned, mortgage is anomalous, Usufructory coupled

with simple is anomalous Mortgage


Mortgagor has the right to have the redemption of the mortgage. Once a mortgage always a

mortgage and nothing but a mortgage. Any condition that prohibits the right of redemption is

void, and that prohibition is called clog on prohibition. The mortgagor can ignore that particular

condition and no court will enforce that condition which is clog on the redemption.
When mortgagor fails to pay back the loan, there is right of foreclosure with the mortgagee. He

cannot do so on his own. He has to approach the court to exercise the right of foreclosure.

Question: Whether long term mortgage is clog on redemption?

A Major person can only be a mortgagor and if he exercises his right of redemption only after a

long period of time, for example after 85 years, then he can exercise his right only after attaining

103 years, if he has contracted at 18 years of age, bare minimum requirement under ICA.

Practically it is impossible to live for 103 years, right of redemption becomes futile.

So what is the test to decide whether a long term mortgage is a clog on the right of redemption?


A mortgaged her property to B and a particular time was provided for repayment of the debt.

Mortgagee was the mortgagors tenant. Since the very beginning of the mortgage till 15 months

there was no right of redemption, and only after 30 months the mortgagor can exercise the right

of redemption. There were 2 conditions:

If the mortgagor is not redeeming before 30 months, it would be deemed that the

property is sold to mortgagee. No fresh sale deed will be required, tenant will become

the owner.

And even if the right to redeem is exercised before the expiry of 30 months, the

mortgagee will continue as tenant. The property will not go back to the original owner.

Question: whether on redemption of mortgage, the plaintiff would be entitled to possession of

the mortgaged property?

Held: Mortgagor was oppressed; she was in need of money, which is why the mortgagee

included unconscionable conditions. Hence the conditions so imposed are clog on the

redemption. The mortgage deed was benefitting the mortgagee unduly.

Ratio: If the mortgagee is getting any benefit out of the mortgage and those conditions affect the

interest of the mortgagor, it would be deemed that those conditions are the clog on right of



The mortgage was for a period of 80 years and he could not exercise the right of redemption

before 80 years and within 6 months and if mortgagor is not redeeming it would be considered as

a sale.

After the expiry of 43 years, the mortgagors son initiated the proceeding for redemption as the

term 80 years itself is clog.

Ratio: Test: In deciding whether a long term mortgage is clog on redemption

mortgagor was oppressed

Mortgagee has undue advantage over the mortgagor because of his position.

contract between two unequal parties

Long term mortgage per se is not a clog on redemption. When the long term mortgage whereby

there is restriction on redemption is coupled with the aforementioned conditions then only it can

be considered as clog on redemption. Additionally that clog should benefit the mortgagee.

Contrastingly, if the long term is providing benefit to a mortgagor then it cannot be construed as
a clog. However where it seems that there is element of suppression and undue advantage, it is


Held: In this case, second condition of execution of sale in favor of the mortgagor automatically

on the non-exercise of the right of redemption elicits that there is an exercise of undue influence

and thereby undue advantage is taken by the mortgagor, hence it is clog.


Mortgage money was merely Rs.17000. Additionally there is right of redemption no redemption

before 99 years.

Court: for such a little money of 17k making redemption impossible for 99 years is itself clog.