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-Standing timber-A tree that has attained its full age, height and draws minimum sustenance
from earth/soil and if it crosses this age, its shape and condition starts decreasing and
deteriorating. It is ready for being cut and could be used for making various items viz. furniture
etc. Whether a tree is timber or not depends on the category of the tree and the common
purpose of such category. All the statutory definitions have excluded standing timber, growing
crops and grass from the purview of an immovable property. Here the intention is of great
importance. If the transaction is the immediate, the objects will be movable. But if the contract
regarding such objects extends to many a year or if the owner of the trees is interested in further
vegetative growth, then they will be treated as immovable property. The transfer of trees
standing on land does not amount to the transfer of the land also.
-Timber tree-A tree which is growing and drawing sustenance from soil.
-Cases
(1) Anand Behera v. State- A right to catch away fish from Chilika Lake, over a number of
years was held to be profit a prendre. (Benefits arising out of land)
(2) Shanta Bai v. State (Standing Timber and Timber tree)-Right to enter land, cut and
carry away wood over a period of 12 years was held to be immovable property. (Benefits arising
out of land and Standing timber and timber tree)
(3) State v. Titaghur Paper Mills Company-Tests to determine whether a property is movable or fixture(a) Degree or mode of attachment and result of its detachment
(b) Object or purpose of attachment
(c) By whom it is brought or attached
Chapter 2
Attestation (Section-3)
Attest-means to sign and witness any fact. Attesting as per TPA means a person has signed the
document by way of testimony of the fact that he saw it executed. The law requires some
authenticity of the document and that it was executed by a persons free will and understanding
and without any force, fraud or coercion.
-Requisites
(1) there must be atleast two witness
(2) it is not necessary that all the witnesses must sign at the same time
(3) it is necessary that the witness must sign in the presence of the executants
(4) it is ordinarily necessary that the witness muse see
(a) the executants sign/thumb impression to the instrument
(b) or some other person sign the instrument in the presence and at the direction of
executant
(c) or the witness should receive an acknowledgement of executants signature/T.I. or of
the person signing on the behalf of the executants
(5) The witness must sign after the execution of the instrument
(6) The witness can sign anywhere in the instrument and no place is fixed as to where he should
sign.
(7) Anybody can sign who is capable of entering a contract
(8) Animo Attestandi-The witness must sign with the intention of attesting the facts and not
just mere signing it. He must certify that he actually saw the executant sign the document.
(9) The pardanashin lady can be a witness
(10) The witness should be independent-Cases
(1) Padarath Halwai v. Ram Narain (Pardanashin lady)-There were two pardanashin ladies
who were the mortgagers and who did not appear before the 2 attesting witnesses while
executing the instrument. The court held that since the 2 witnesses were acquainted with the
voices of both the ladies and on these grounds the court held that the attestation done by two
witnesses were genuine and valid.
(2) M.L.A. Jabbar v. H.V. Sastri-The security bond was signed by three witness, a solicitor and
the registering officer. 2 out of the 3 witnesses and the solicitor witnessed the document just for
the sake that they have identified the executants. The court held some condition to be fulfilled
for an authentic attestation. The court held that the registering officer can also be a attesting
witness if it can be proved that he acted animo attestandi. If it fulfills all the condition of Section
3 TPA, then the attestation is valid.
Chapter 3
Notice
Section 3 TPA-Notice-It is a knowledge of a fact
A person is said to have a knowledge of a fact when:(1) he actually knows the fact
(2) when, but for his wishful abstention, from an inquiry or search which he ought to have made,
or gross negligence, he would have known it (constructive or imputer notice)
-Types of notice(1) Actual-Actual as the term specifies, where the person in actual possess the knowledge of the
fact. It is on the party of the imputing the notice to prove that the other party actually had the
knowledge.
(2) Constructive
(a) willful abstention from an inquiry or search- A sells a property to B.
(b) Gross negligence-A took a loan from ABC bank and kept the title deed of his house
with the bank as security. For paying off the debt amount, A asks the bank to handover the
title deed so that he can strike a good deal for selling his house. The bank acting
negligently gave the papers to A. A again on the same papers applied for loan to other
banks. Here the bank was in a Gross negligent.
(c) Registration as a notice-A sells his house to B through a registered instrument. A
again tries to sell the same house to C. Here, law imposes a duty on C to go to the
registrar office and check the original title of the property. If he doesnt do so, his is to face
detrimental consequences as he would be imputed with constructive notice of registration
transaction.
(d) Actual Possession as a notice-A sells a property to B. While C was the real owner
and was in possession of the property. A could have made some inquiries about the Bs
status and his possession in the property and by doing so he could have had the
knowledge that the actual owner was C who is in actual possession of the property.
(e) Imputed Notice-The underlying principle of this is that no person shall be allowed to
get rid of the doctrine by simply employing an agent.A person is deemed to have had
notice of the fact if his agent acquired notice
(i) while acting on his behalf
(ii) in the course of business
(iii) to which business, the fact is material.
But if the agent by fraud, conceals the facts, the principal cannot be charges with
notice.
-Cases
(1) AMC v. Haji Abdul Gafoor (Constructive notice)-A became insolvent. His property was
vested with the officer revenue. Municipality asked for the dues pending over the property.
Receiver took the permission of the court to sell the property to satisfy the dues of municipality.
But the receiver acting negligently did nothing afterwards and the dues were remained unpaid
for 5 years. The person who purchased the property in auction asked the receiver about any
arrears but the receiver intentionally didnt give any information. When the person came to know
about it, the municipality contended that he is to take the property subject to all the defects of
the title and doctrine of caveat emptor applies here. The court held that the plaintiff could not
have reasonably thought that the municipality had not cared to secure the payment. Here in this
case it is the municipality has acted negligently in not providing the information when he asked
for the same. Thus, the plaintiff cannot be fixed with constructive notice.
(2) Ram Niwas v. Bano-
Chapter-4
Transfer of Property
Section 5 TPA-Transfer of property means where a living person conveys property. It is creating
of a new title and passing on the property to some other living person or more living persons or
to himself.
The Definition includes(1) Living persons-includes, company, association, body of individuals, to himself
(2) Property-ownership, tenancy, copyrights, trademarks etc.
(3) Transfer-of either all the rights or interest in the property or transfer of some subordinate
rights
Future property cant be a subject of transfer because of speculation.
-Kinds of transfer-Sale, mortgage, lease, gift etc.
-Will- is not a transfer of property.
Cases on Will(1) N. Ramaiah v. S. Nagraj (Case explaining the difference between Transfer of
Property and Will)-A will was made in favour of nephew of A. The will was challenged by the
widow of A through her brother. She contended that the Will was got up document and she is the
one who will succeed the property as a sole legal heir of A. The nephew took an injunction and
the court directed the widow to maintain a status quo. Meanwhile, after some time she died and
before her death she executed a will in favour of her brother. Her brother contended in the court
that he may be allowed to appear as respondent in place of the widow. He contended that she
had bequeathed her property to him and his children and therefore he is one of the co-owners of
the property which was the subject matter. The nephew contended that the Will is in breach and
defiance of the order of status quo. The court held that the Will and transfers are both different.
In transfer, the property is transferred inter vivos but Will only becomes operative when the
person making it, dies. The transfer creates a new title while a will is a mere speculation. Will
only regulates succession. The Transfer is immediate and irrevocable while Will is revocable and
comes into operation only after death. The court held the Will is not same as transfer. A Will
includes only those intention of a testator with respect to his property which he desires to
regulate succession and it creates no new title, ownership right and nor the possession is
affected. Hence, the will is not the part of transfer of property, but it never created a new title
and he is liable to be released.
Chapter 5
What kind of Property can be transferred (Section 6a, 43)
-What may be transferred (Section 6)
Alienation rei prefertur juri accrescendi which means law favours alienation to accumulation. Any
kind may be transferred and the one who is opposing the non-transferability should prove that
under which law or custom the property cant be transferred
-Spes successionis- Section 6a
Where the heir has got only a mere possibility to get the property i.e. where there is only a
speculation, the heir cannot transfer the speculated property to someone else. (1) Heir-apparent
(2) relation obtaining legacy on the death of kinsman (3) any other mere possibility of like
nature.
Eg-A, after death, leaves property worth crores to wife B. Here, C, the brother of A is having a
mere possibility of getting the property. It could be possible only if B dies leaving no child behind.
-Doctrine of Feeding empty grant by estoppels (Section-43)
Transfer of property by any unauthorised persons who subsequently acquires interest
in property transferred-Where any person fraudulently or erroneously represents that he is
authorized to transfer certain immovable property and professes to transfer such property for
consideration, such transfer shall at the option of the transferee, operate on any interest which
the transferor may acquire in such property at any time during which the contract of transfer
subsists. The general rule is nemo dat quod non habet which means no one can give to
another, what he himself does not have. If any such transfer is executed, then is such case,
under this section, protection is given to the bonafide purchaser. This Section is partly based on
Doctrine of Estoppel.
Eg-A transfers a property of which he has no right. He does so fraudulently. B who acted bonafide
is the purchaser. Somehow, through some gift the property comes to A. Now, the court can be
estopped the court can compel A to deliver the property to B. But it could be done only at the
option of B while the contract subsists.
The Doctrine also applies to mortgage, lease, charge and exchange.
-Essentials requisites of Section 43
(a) Representation must be there from transferor, either fraudulently or erroneously
(b) The doctrine doesnt apply where the transferee already had the knowledge of the facts or
where both the parties knew the fact
(c) Doctrine doesnt apply where the transfer is forbidden by law
(d) Transfer for consideration
(e) The option of transferee- The transferee doesnt get the right over the property automatically,
but he has to claim it. There are other remedies also that the transferee has viz. he can file a suit
for breach of contract, file a civil case for recovery of purchase-money, a case of cheating etc.
(f) The Doctrine also doesnt apply where the contract has finished or cancelled-If the transferee
has cancelled or repudiated or where the money taken by the transferor has been paid back, in
such a situation the doctrine doesnt apply.
(g) Transfer valid at the option of the transferee-Cases
(1) Jumma Masjid v. K. Deviah-(Difference between Section 6a and 43)Section 6a
It is for movable and immovable properties
It is for all kinds of transfers
Under this, there is no misrepresentation of
fraud by the transferor but he transfers only
the basis of spes successionis
It deals with the transfer of a mere possibility
Section 43
It is only for immovable properties
It is for transfers with consideration
Misrepresentation or frauds is there on the part
of the transferor relating to the title of the
property
It
deals
with
consequences
of
misrepresentation
(2) Kartar Singh v. Harbans Kaur-A hindu women executed a sale deed of the land belonging
to her minor son. Her son, on attaining majority filed a suit and contended that this sale was not
binding on him and was void. HC decided the case in his favour and ordered to give him
possession. Before taking possession he died and property came to mother by succession (Class
1 heir). The transferee, filed a suit under Section 43 and claimed the property. The SC held that
for Section 43 to apply, two conditions must be satisfied (1) A misrepresentation either by fraud
or error by the transferor to the transferee that he is authorized to transfer certain immovable
property and accepts to transfer it for a consideration (2) when the property in issue comes to
the transferor, then at the option of the transferee, he is entitled to get the restitution, while the
contract of transfer subsists. SC held that the transferee has failed to take reasonable case to
ascertain whether the transferor is competent or not to make transfer on behalf on her minor
son. The transferor was not misled. It is the duty of the transferor to inquire, in which he failed.
Thus, first condition to Section 43 is not proved. Further, SC said that the contract has to subsist,
if the transferee wants restitution. But in this case, the contract was void ab initio as the
mother/transferor was not a competent person to transfer the property on behalf of the minor
son.
SC clarified that as per Section 43
(1) It doesnt matters whether the transferor acted fraudulently or innocentrly in making the
representation, what matters is that if the transferee knew as a fact that the transferor doesnt
possess the title which he represents he has, then in such a situation Section 43 will not apply.
Decision-Section 43 will not apply but Section 6(a) will apply and the mother succeeds. The
contract is a void contract.
Chapter 6
Restraints on Transfer
The law favour alienation and not accumulation.
Section 10-Where the property is transferred to the transferee by absolutely restraining with
some condition with it viz. that he cannot sell or that he cannot transfer the property. Such
conditions are void.
-Features of(1) It is called conditional transfer
(2) It talks only those conditions which are subsequent to the vesting of the interest in the
transferee
(2) the absolute restraint binds the transferee from parting from his interest in the property
(3) Such conditions are void
(4) Such conditions are not void when
(i) where the condition is for the benefit of the lessor or those claiming under him
(ii) where the condition is for the benefit of a women (not being Hindu, Muslim or Buddhist)
The exception to Section 10 is that the lessor can impose a condition on the right to alienate of
the lessee. It is so because the ownership right belongs to the lessor and it is his right to choose
who his tenant would be and this right cant be enjoyed by lessee.
The other exception is that then the condition if for the benefit of the women.
Eg.(1) A transfers B his property with a condition that B shall never sell it. This condition is void and
he may sell it or keep it.
(2) A transfers his property to his wife with a condition that she would have no power to sell the
property with his consent.
A right of transfer comes with the ownership of the property and is inseparable. However there
are exceptions to this also. There are two kinds of restrains:(1) Absolute Restraint(i) These are void restraints as these takes away the power or alienation completely or
substantially
Eg-A transfer his property to B on a condition that B shall never sell it, except for religious
purposes.
(2) Partial Restraint(i) it imposes some restriction on the alienation but the transferee is substantially free to
alienate the property
Eg.-A transfer B his property on a condition that he shall not sell the property for religious
purposes. Here the condition is imposed for only religious section and the transferee can alienate
to any other person other than for religious purpose. Thus if the power to alienate is restricted to
one person only then it is absolute and void.
-Other examples(1) selling of the property at a fixed price is void
(2) transferee shall not transfer the property by way of gift is a partial restraint
(3) transferee shall not transfer the property for 3 years is a partial restraint and it would be
void/absolute restraint if the period is 20 years because is 20 years is a very long time.
(4) that the transferee shall not transfer the property to any member of a particular persons
family/ or to a particular person is a partial restrain and thus valid
-Cases
(1) Rosher v. Rosher-A transferred his property to his son B on a condition that if he wants to
sell the property during the lifetime of his mother, the offer to purchase should be given to her at
a price of 300 pounds which was a price very lower as compared to its actual price which was
15000 pounds. The second condition was that if they want to give the property on rent, they can
give it for only 3 years and after that the widow would have the option to occupy the premises
for 3 years at a nominal rent and if the tenancy exceeded to seven years, again she would be
entitled to occupy the premises for a fixed rent. The court held that such condition on the right of
the transferee are void conditions and these are stopping him from alienating and enjoying the
property. The conditions are absolute in nature and are void.
(2) Zoroastrian Co-op. Housing Society Ltd. v. District Registrar, Co-op. Societies-The
condition for becoming the member of the society was that the person should be a parsi and the
restriction imposed was that they cannot sell their share of property to a non-parsi. One of the
members was negotiating with one of the builders association. He forwarded an application to
the society seeking permission to transfer the property to the builders association, non-parsi
which was rejected. The court took the decision ?????????
(3) K. Muniswamy v. K. Venkataswamy-There was a partition between parents, Son A and
Son B. There was a condition imposed on the share of the parents that they shall enjoy their
share for their life time and after them, the share will be equally divided between Son A and Son
B. It is to be noted that no such condition was imposed in the shares of the sons. The condition
on the parents share was an absolute restraint because with such a condition they were not in a
position to alienate their property. The court held that the condition was a void condition.
-Restriction on the Free enjoyment of propertyRestriction repugnant to interest created- (Section 11)-Any condition which restraints the
enjoyment of the property which is transferred absolutely is void.
Eg-A condition that the transferee should always give the land on a definite rent or that he
should not cultivate in a particular manner, are void conditions.
Section 10
It deals with the conditions imposed on the
transfer
It is applicable to all transfers whether absolute
or partial
It deals with the power to alienate
Total restraint is void
Section 11
It deals with the conditions imposed on
enjoyment
It is applicable only when the transfer is
absolute
It deals with the enjoyment
The owner can enjoy the property in any
manner
Exception to Section 11
-The transferor can impose certain restrictions on the transferee if(1) Transferors own land is adjacent to the land transferred to the transferee
-Section 40-Convenants-These are the conditions imposed by the transferor on the use of land
by the transferee for the benefit of his adjoining land. These covenants are in writing creating an
obligation which may be positive or negative:(1) Positive covenant (burden on land)-it stipulates the performance of some act or payment of
money
(2) Negative-It restricts some acts viz. not to raise the building.
Chapter 8
Lis Pendens (Pending litigation)-Section 52 (Complete)
-lis pendence in short means that during the pendency of suit, the parties cannot
transfer their properties.
-Ut lite pendent nihil innoveteur nothing new should be introduced in a pending
litigation
-it aims to prevent multiplicity of suits of proceedings related to the same land.
-Where a suit or proceed is pending between two parties with respect to an immovable property,
and one of the parties thereto sells or otherwise transfers, the subject matter of the litigation,
then the transferee will be bound by the result of the suit or proceeding, whether or not he had
notice of the suit or proceeding. This rule is known as lis pendens.
Eg- A and B are neighbours. B encroached As land. A filed a suit and while the suit was pending
B sold the property to C. Whatever the decision the court gives, whether in favour or against B,
that C will also be bound by that decision.
Essentials of the Doctrine1) There must be pendency of a suit or proceeding
2) The suit must be pending in a competent court
3) The suit must not be collusive-There must not be a fraud. Eg.- A and B agreed and conspired
that B would file a suit against A in respect of a house in As possession and during the pendency
of the suit B would sell that property to C with the belief that the sale-deed executed in favour of
C would be set aside by the court because of lis pendens and will divide the amount equally.
They work their plan. The decree goes in the favour of B. Now, the suit being collusive and the
possession would go to D and not B.
4) The right to immovable property must be in question directly and specifically
5) The property in question must be transferred or otherwise dealt with by any to the litigation
6) The alienation must affect the rights of the other party
-Cases(1) Jayaram Mudaliar v. Ayyaswamy-The property was auctioned because of some money
decree. The Karta had to repay certain debts on behalf of the family. A member of the family of
the Karta filed a suit for partition. The auction took place while the suit was pending. The court
held that the auction was hit by lis pendens as the alienation made by the Karta were fraudulent
and not for the legal necessity and the share of the claimant shall remain unaffected in the
partition.
(2) Dalip Kaur v. Jeewan Ram- preemption case-(proceedings before the SC are a
continuation of those in the original suit and that the principle of lis pendens as well
as restitution shall apply to the proceedings)-A filed a suit for possession by way of
preemption against B. He got possession by way of decree. The opposite party filed an appeal
and the same was dismissed by HC. They filed an appeal in SC which was also dismissed. They
filed a special leave petition. The leave was granted and appeal was accepted. During this time,
A sold the property to X, who raised an objection that the decree of restitution cant be invoked
against him. SC held that the proceedings before it are in continuation of those in the original
suit and the principal of lis pendens as well as restitution shall apply to the proceedings.
(3) Govind Pillai v. Aiyyappa Krishanan -(Suit filed in the court with incompetent
jurisdiction)-A dispute was pending in the court regarding some property. The plaint was
returned because the court in which it was presented was not having competent jurisdiction.
Before the suit could be filed in a competent jurisdiction, the person who had the possession
executed a gift of the said property in favour of his wife and son. The question was that whether
the gift deed would be hit by lis pendens? The court held at the time when the gift was executed,
there was no suit pending in the court related to the said property. Hence, the gift is not hit by lis
pendens.
(4) SG Films exchange v. H.H. Maharaja (Plaza Cinema case)-The plaintiff gave
Rs.250000/- to the respondents against the security of bales of cotton. The respondents also
executed a registered-mortgaged deed of plaza cinema in favour of the plaintiffs to clear the
dues. As the plaintiffs were unable to recover the dues, they filed a suit for the sale of Plaza
cinema. The theatre was attached to the decree against the respondents. During the attachment,
the respondent executed an unregistered lease deed in favour of some company and they
contended that they carried on the business since 1940. Their lease finished in 1946 and a new
registered lease was executed in 1956. The time during which the property was in dispute under
a suit in the court was between 1952-1960). Thus the registered lease was executed during the
lis pendens. Court held, that since the lease was registered during lis pendens, the right of the
tenants were subject to the decision of the court.
(5) S.J. Mahaprabhu v. P.C. Chatterjee-
Chapter-10
Mortgage (Section 58)
A mortgage is a kind of security given by the debtor to the creditor. The object of a mortgage is
to secure the debt or other obligations. It protects a creditor, for even if the borrower becomes
insolvent the money can be realized from the property given by way of security.
-Elements of Mortgage1) Transfer of interest
2) Specific immovable property
3) Consideration for Mortgage
-Types of Mortgages1) Simple mortgage (Section 58b)-Possession is not given to the creditor but right to sell is
given. The creditor has no right to collect rent from the mortgaged property. If the creditor wants
to sell the property in default of payment of his money, he has to take permission from the court
first.
2) Mortgage on condition sale (Section 58c)-In this, the property is considered as sold if
condition set are met.
(a) On condition that on default of payment of the money on a certain date the sale shall
become absolute
(b) If the money is paid on the date fixed, the sale shall become void
(c) On condition that on such payment being made, the buyer shall transfer the property
to the seller
In this kind of mortgage, the mortgagee has a qualified ownership.
3) Usufructuary Mortgage (Section 58d)-Possession and enjoyment rights are given to the
creditor/mortgagee. He can collect rent and can also adjust the same in the interest amount of
the mortgage money or in the mortgage money itself or in both.
4) English Mortgage (Section 58e)-In this the title of the property is given to the
creditor/mortgagee by the mortgagor. By this he transfers the ownership rights to the mortgagee
and the if the payment of money is made on the fixed date, the mortgagee has to transfer the
property back to the mortgagor, by giving him the title. In this the mortgagee has the absolute
ownership.
5) Equitable Mortgage (Section 58f)-Only the property papers are given to the mortgagee or to
his agent. There is no writing or other formalities required. This kind of mortgage is more
common where there is a sudden need of money felt by someone.
6) Anomalous Mortgage (Section 58g)-A mortgage which is none of the above is an Anomalous
Mortgage.
-Mode of Mortgage (Section 59)1) Registered instrument
2) Delivery of possession
3) Deposit of title deed
-Right to redemption (Section 60)Redemption means paying off the mortgage-money and getting the mortgaged property back. It
is the Right of redemption that lies with the mortgagor that on payment of the money, he gets
his property back.
Section 60 says:- The mortgagee has the right to redeem
(1) all the mortgage instruments and all the title deeds
(2) delivery of possession by the mortgagee
(3) a retransfer of the property (at the mortgagors cost) or an acknowledgement of the
extinction of the mortgagees rights.
-Clog on redemption (Once a mortgage always a mortgage)-A mortgage is always
redeemable. A mortgagor, at any time after he has paid the mortgaged money back to the
mortgagor, he has a right to get his property back (until any decree of foreclosure is passed in
favour of the mortgagee in default of payment). Right of redemption is a statutory right of the
mortgagor and no law or contract can take away this right. This is because if the mortgagor is in
need of money, then the position of the mortgagee is dominating and he can put certain
condition which can work as a clog on the redemption of the property. The law in such conditions,
protect the mortgagor and such conditions are considered as void.
-Conditions what work as a clog and are void:(1) If the condition is that in failure of payment of the mortgage money within a specified time,
the mortgagor will have no right/claim over the mortgaged property and the mortgage-deed will
be considered as a sale deed. This condition is a clog and void. But if the mortgagor himself
executes a sale deed in favour to mortgagee after the specified time is over, then that sale deed
is a valid deed.
(2) Long term of mortgages, is not a clog in itself, unless it is proved that there was a fraud or
undue influence with evidence of it. If it is proved, then the condition will be void. And also, if the
length is unreasonable or oppressive then it will be a clog.
(3) Stipulation barring mortgagors Right of redemption after certain period(4) Restraint on Alienation
(5) Redemption restricted to mortgagor
(6) Penalty in case of default(1) Gangadhar v. Shankar Lal (Long term clog)- The mortgage deed read I or my heirs will
not be entitled to redeem the property for a period of 85 years. After the expiry of 85 years, we
shall redeem it within 6 months otherwise we shall have no claim over the mortgaged property
and the mortgagee shall have no right to claim the money back. This deed will be considered as
a sale deed. The court held that long term mortgage is not a clog in itself unless it is proved that
the mortgagee has not taken undue advantage of the condition of the mortgagor. There must not
be any fraud. If it is proved, then the mortgage is with clog. It was held in that in the present
case it is clear that there was no unfair advantage taken by the mortgagee and 85 years is not a
clog in the circumstances of this case.
(2) P.K. Govindji v. V.K. Purohit (Long term clog)-The appellant made a mortgage deed in
favour of mortgagee and in which it was stated that the duration of the mortgage is for 99 years
and the mortgagor can only claim it after the expiration of the said time. The mortgagee was
given the full possession of the land and there was another clause in the deed that the
mortgagee has the right to make structural changes in the said property and the mortgagor at
the time of redemption has to pay all the expenses incurred by the mortgagor on any
construction or repair work done by him. The mortgagee constructed a new structure by
demolishing the old one. Thus, the Court held that such a condition is a clog on the mortgage
and it makes clear that the mortgagee took undue advantage of the condition of mortgagor.
Hence, the mortgagor is allowed to redeem.
(3) S. Singh v. S.Singh (Long term clog)-The mortgagor was financially tight. He mortgaged a
property for a consideration of Rs. 7000/- to the mortgagee. The condition of the deed was that
the mortgage is for 99 years and he also enjoyed usufructs of the said property. In order to
arrange Rs. 7000/- for the payment of the mortgage, the mortgagor sold some part of the
mortgaged property to one A. The mortgagee refused to give possession of the property. It was
held by the court that the mortgagee was in a dominating position and took advantage of the
plight of mortgagor by imposing a clog of 99 years and not only this, he also kept on drawing
usufructs from the said property for the last 26 years. It was declared a clog.
(4) S.G. Dhula v. S L Tejshi-Any provision in the original mortgage-deed to the effect that if the
debt is not paid at the proper time, the mortgagee shall become the owner of the property is
void, and indeed the courts treat as void any provision which clog the right to redeem i.e. either
makes redemption unduly difficult or provides that the mortgagee shall retain some right
affecting property after the debt has been redeemed.
-Right of foreclosure of sale (Section 67)-
Chapter 15
(2) Revocation by Agreement- The condition of the agreement should not be illegal or immoral
and should not be repugnant to the estate. Both, the donor and the donee must agree at the
condition in the agreement.
-Cases
(1) Tila Bewa v. Manu Bewa-The donor executed a gift deed in favour of the donee on a
condition that he would look after and serve her during her lifetime. The donee left her and
remarried. She cancelled the gift. The court said that it was only a pious wish of the donee to
look after the donor and only on this condition the gift cannot be cancelled. The court also said
that firstly, there was no agreement between the both regarding the revocation, secondly this
should not depend on the will of the donor. Hence, the gift cant be revoked.
(2) Kartari v. Kewal Krishan (undue influence)-70 year old ailing widow lady. Daughter took
care of her. Her collaterals took her to some place and made her sign a gift deed in their favour
and they also got it registered. Daughter came to know about it. Meanwhile the lady died. The
collaterals took the possession of the property as soon as she died. Daughter filed the suit and
contended that the gift deed was taken by fraud and undue influence. The court held that it is
clear by the conduct of the collaterals that the signatures of the lady were taken by fraud and
undue influence as just when she died, they took the immediate possession of the property in
issue. Hence, the gift is void.