TOPA - Case Briefs

Section 3
1. Marshal v. Green - MI - trees
- Held: if only a right to cut and enjoy the trees as timber was sold, it is an interest in a
movable property. If such a right is to extend over many years, it will be treated as an
interest in immovable property.

2. Shanta Bai v. State of Bombay 1958 – MI

- Facts: Woman enters into lease whereby she is permitted to cut plants and trees (3 types)
above 1.5 ft for 12.5 years. MP Abolition of Proprietary Rights Act was passed as a result of
which she lost this right. She claimed that since the right given to her was for standing
timber she was entitled to compensation as it was a moveable property.
- Held: Court said lolno and spoke about the necessary elements for a case of standing
timber.
o If held as immovable, then irrespective of the change in ownership, she would be
entitled to realise the right if the document itself was valid – but it was not attested or
registered and therefore she could not have succeeded if the right was in immovable
property.
o If it is movable property then if the ownership changes hands, the right to enjoyment is
lost, however she would be granted compensation for the rest of the time period
where she was not able to realise the right
o Court held that a right to enter upon the land and carry a part of the produce is a
benefit arising out of the land (profits a prendre) and thus is immovable property. The
duration of the grant was 12 years, a tree that will be fit for cutting in 12 years may not
be fit currently, and thus a right to derive benefit from the soil was granted also. This
implies that the right was one in immovable property and as the document was not
correctly registered, the wife could not get any remedy

3. State of Orissa v. Titagarh Paper Mills 1985 - §3 - MI

- Facts: One of the contracts related to an agreement of the petitioners with Orissa for the
felling, cutting and obtaining of bamboo from the forest area, or for purposes connected
with the manufacture of paper, or in any connection. Thus, the company had the right to
use all lands, roads and streams, including building dams, roads etc.
- Held: Clearly a contract of immovable property, benefit arising out of the land, single
indivisible contract. Bamboos are an immovable property as the intention was to enjoy the
benefits arising out of land and not immediate felling.

4. Anand Behera v. State of Orissa - MI

- Held: Right to fishing is an immovable property, though fish is a movable property. It is an
incident of benefit arising out of land.

5. State of AP v. NTPC - MI
- Held: Electricity is a movable property, no exception

6. Taylor v. Marshall
- Held: Tenant fixing usually intended to be movable/temporary. Any ornament or any chattel
attached by tenant in normal circumstance is only for the beneficial enjoyment of that
chattel only.
7. Duncan Industries Ltd v. State of UP (2001) - §3 – fixtures v. chattels
- Facts: Company agreed to transfer its fertilizer business, including the plant and machinery.
Issue was regarding the character of plant and machinery as they were treated as movables,
included power plants, vehicles, furniture, etc. Machineries were permanently embedded in
the earth with the intention to use them permanently. Transfer was of business as is, and
machines were not removed and handed over separately.
- Held: Immovable property, physical delivery without registration and attestation could not
convey a good title.
- [other cases: If the machinery only there because of operational efficiency and can be easily
removed from the base it would be movable property]

8. Holland v. Hodgson - §3 – fixtures v. chattels

- Held: Looms attached to earth and floor of a worsted mill were fixtures
- Ratio: Question depends on intention, indicated by degree of annexation and object of
annexation

9. Padarath Halwai V Ramnarain 1915 (attestation)

- Facts: Mortgagors were two pardnashin ladies who did not appear before the attesting
witnesses, their faces were not seen by the witnesses. The witnesses were acquainted with
the voices of the ladies, saw them execute the deed with their own hand, recognising them
by their voices.
- Held: Valid attestation (rules for pardanashin women are relaxed)

10. Abdul Jabbar V. Venkata Sastri 1969 (attestation)

- Facts: A instituted a suit against B claiming a sum of 49,000 allegedly loaned on two
promissory notes from B. B obtained leave to defend the suit on the condition that he
execute a bond in favour of the registrar for 50,000. Bond included properties, signed by an
attesting witness X and an advocate Y, who had prepared and explained the document to B,
as well as two other persons who had identified B before the registrar. Bond was also signed
by the sub-registrar. A claimed that as he was a secured creditor, he should get priority for
repayment over the other creditors. The other three creditors claimed that as the bond was
not validly attested by two competent witnesses all four of them were unsecured creditors
and therefore all should be paid equally. They claimed that only one witness could be taken
as an attestor as the rest signed in different capacities. Whether a deed signed by sub-
registrar and other identifying witnesses is validly attested if only one person signed as an
attesting witness?
- Held: Animo attestandi, the purpose of attesting that they had seen the executant sign or
had received from him a personal acknowledgement of his signatures, is necessary. If a
person puts his signature for some other purpose, then cannot be an attesting witness. In
the present case, the registering officer put his signature as a statutory duty, the witnesses
put their signatures to indicate that they had identified the executant only. Thus only one
attesting witness was present and the document was not validly attested, making A an
unsecured creditor.

11. Harish Chandra v. Bansidhar Mohanty - §3 [Attestation by witness]

- Held: The court drew a distinction between a person who is a party to the deed and a person
who, though not a party to the deed, is a party to the transaction, and held that the former is
incompetent to be an attesting witness while the latter is competent
12. Hobson v. Gorringe
- Facts: X is the owner of a Machine. Through a Hire-Purchase agreement, he rented this
machinery to A, with the condition that until A pays all the instalments in full to X, this
machine shall not be considered immovable property though A has fixed the machine to the
ground.
- Held: the engine became part of the freehold when it was fixed to the land; and so became
subject to the mortgage security over the freehold, when that was executed.

13. Lloyds Bank v. Guzdar

- Facts: G deposited his property to Bank B and mortgaged a loan. After some time, G
approached the bank and says that G is planning to sell the property and pay the remaining
money to B, for such reason: G asked B to release the title deeds of the property. General
procedure - Title deeds released to solicitor, advocate of the bank and he ensure that the
procedure happens within the control of the bank. Here G argued that if people come to
know that he is under such a financial constraint, he will not receive proper rate for the
property which will be a financial loss to him and thus, the bank manager agreed to release
the papers. Immediately, G went and mortgaged his property to Bank C. Who will get their
loan cleared first? B claimed that as they first gave the loan thus, they should get the money,
C claimed that as they hold the title deeds, they should get the first chance to get their loan
cleared.
- Held: willful abstention from making an enquiry. Bank b’s conduct tainted with gross
negligence as they had parted with the papers that were the security of the loan.

14. Ramakrishna Reddy v. Sub-Registrar, Bengaluru - Notice

- Held: Registration will act a constructive notice

15. Ram Niwas v. Bano 2000 / Kalyani v. Krishnan

- Facts: A took a shop on rent from B and subsequently entered into a contract for purchase
of the shop, while keeping possession of the property. He paid part of the consideration and
agreed to pay the rest on the date of execution of the sale deed. Six months later, B sold the
shop to C. A filed a suit for performance of contract, C resisted stating he was a bona fide
purchaser. C claimed he had no notice of the claim of A. Issue was Whether C had notice of
A’s rights over the property
- Held: A at the time had actual possession of the property. C should have made inquiries of
the title. Explanation II holds that notice would be present even if actual knowledge is not,
and thus C cannot escape the consequences.

Section 5

16. Sarin v. Poplai – Partition not transfer

- Facts: There exists a HJF - some property is present - there is a karta and various
shareholders - through partition agreement it divided between A, B and C - will this be
considered transfer of property under Section 5?
- Held: No. the true effect of partition is that each coparcener gets some specific property in
place of his undivided right, in respect of the totality of the property of the family.
Section 6
17. Karpagathachi v Nagarathinathachi 1965 (Prohibition of Transfer)
- Facts: Two widows inherited properties of late husband. They divided the bulk of the
properties and each entered into separate possession and enjoyment of the properties. The
property of the husband’s mother, upon death, would also split between the two. One of
the widows died, and the other instituted a suit against the late widow’s daughter for
possession of the property allotted to the late widow from the division of property. The
respondent resisted the suit claiming that under the partition each widow gave up her right
of survivorship in respect of the properties allotted to the other, and the respondent as her
daughter was entitled to take her share as her heir and to enjoy the same. It was argued by
the widow that in view of s.6(a) of the Transfer of Property Act, 1882, the widows were not
competent to enter into an arrangement transferring or relinquishing their right of
survivorship.
- Held:
o Under Hindu law as it stood in 1924, two widows were entitled to enforce a partition of
those properties so that each could separately possess and enjoy portion allotted to
her - Neither could, without consent of other, enforce an absolute partition of estate so
as to destroy right of survivorship.
o The interest of each widow in the properties inherited by her was property, and this
property together with the incidental right of survivorship could be lawfully
transferred. Section 6(a) of the Transfer of Property Act prohibits the transfer of the
bare chance of the surviving widow taking the entire estate as the next heir of her
husband on the death of the co-widow, but it does not prohibit the transfer by the
widow of her present interest in the properties inherited by her together with the
incidental right of survivorship. The widows were competent to partition the properties
and allot separate portions to each, and incidental to such an allotment, each could
agree to relinquish her right of survivorship in the portion allotted to the other.

18. DhupNath v. Ramcharit -

Held: where property is given to a Hindu widow for her maintenance, the transfer of the
property during her life is not transfer of the right to maintenance and is valid and effective
during her lifetime.

Section 8

19. Raja Anand v. State of UP - §8

- Facts: A sold the agricultural land to B but B later found that there are some valuable
minerals under the land. A argues that he sold only agricultural land and the minerals
beneath the land are still his property
- Held: However, court did not accept this argument and said that when A sells some land, he
sells it along with everything that is attached to the same. Thus, the minerals belong to B
only.

Section 10

20. Rosher V Rosher (1884) – §10

- Facts: A died leaving behind wife and son. Left entire property to son. Will also held that if
son wanted to sell, they must first offer it to the wife and she would have the option to
purchase it at one fifth the value. The will further held that the son could only rent it for
three years, after which the wife would have the option to occupy the premises for a minor
amount.
- Held: Condition is an absolute restraint on the son, which is stopping the son from selling it
on the market. The condition is void. The transferee was entitled to ignore them. Even the
 one fifth restriction alone was enough to be an absolute restraint.

Long version for Gade:

A died leaving behind his wife W and a son S. He left his entire property to S, under his Will. The Will
also provided that if S wanted to sell the property, or if any of his heirs wanted to do so, they must
offer it to W first and she would have an option to purchase it at one-fifth of the value of the same,
as it was assessed at the time of the testator's death. The price was specified as 3000 while the value
of the house (Manor) at the time of the operation of the Will was 15000. The Will further provided
that if the son or any of his heirs wanted to let this manor on rent, they could do so freely only for a
period of three years. If the tenancy exceeded the three years’ time period, W would have the option
to occupy the premises, for the period in excess of three years, at a fixed rent. The rent was fixed as
25 for the whole year. If the tenancy exceeded a period of seven years, again W was entitled to
occupy the same for an annual rent of 35. The son or his heirs were under an obligation therefore to
offer the premises to W first, and only when she declined to take it, could they let it out to other
persons. Upon W bringing an action against S, the question before the court was; what the nature of
the conditions was incorporated under the Will; and whether it constituted an absolute or partial
restraint on the power of alienation of this property by the son or his heirs. The character of restraint
was, first, with respect to persons, i.e., the testator's wife. If S wanted to sell the property, he had to
first offer it to W, a person specifically named under the Will. The second type of restraint was with
respect to money or price, as it was provided in the Will, that could purchase the property at a
specific price, i.e., 3000, irrespective of whatever might have been its market value. The
beneficiaries, under the Will, were not free to even give it on lease, as a lease for above the time
period of three years, could again entitle W to take the property at a very small rent, at her option.
The court held that these restrictions amounted to an absolute restraint on S's and his heir's power
of alienation and were therefore void. They were entitled to ignore them, as if these conditions did
not exist on paper, and could sell it or let it out to anyone for any time period, without any cause of
action arising in favour of W. The court said, 'to compel the son, if he chose to sell, at one fifth of the
value of the estate, is really a prohibition of alienation during the widow's life time’.

21. Kelly v. Elliot

- Facts: A tea plantation, if the owner of the estate plans to sell the property in the lifetime of
brother or sister of the testator, he has to pay 1000 pounds from the sale transaction to the
testator’s brother and 500 pounds to the testator’s sister
- Held: In effect, this condition restrained alienation - and is thus, invalid. Transfer is valid.

22. Mohd. Raza v. Abbas Bibi

- Facts: In this case, there was a condition in the property which restrained that the property
cannot be sold to a non-family number.
- Held: The condition is valid.

23. Mata Prasad v. Nageshwari

- Facts: After the husband passed away, wife and nephew had an argument over the
ownership rights over the property. They compromised to agree that the wife will possess
life interest over the property, and later nephew may sell the property. An example of family
settlement agreement reached by the nephew. After this, the nephew went to the court to
declare this condition restraining alienation as invalid.
- Held: Privy Council declared that this condition restraining alienation is valid as it is a part of
the family settlement which is reasonable in the given circumstances.

24. Brij Devi v. Shiv Nanda Prasad

- Held: Court declared that Donor cannot revoke the gift if the donee wants to sell the
 property.

25. Gayashi Ram v. Shahabuddin - §10

- Held: The mere fact that there may be some remote contingency in which there may be a
possibility of alienation taking place would not necessarily take the case out of prohibition of
§10.

26. Zoroastrian Co-op Housing Society v. District Registrar - §10

- Held: The person accepted the membership of the Co-op society and placed a qualified
restriction upon himself on his right to transfer – no transfer from parsi to non-parsi
condition was valid.

Section 11

27. Umrao Singh v. Baldev Singh - §11

- Facts: A testator wrote a will that a property shall not be partitioned.
- Held: Transfer is valid, transfer governing the enjoyment of property is invalid.

28. Tulk v. Moxhay (Restriction Repugnant to Interest) - §11

- Facts: A was the owner of a vacant plot, and several houses forming a square. The garden
had a statue in its centre. A sold the garden with the condition that B and his
heirs/assignees would at all times at their own costs keep and maintain the garden and
statue in its same form, as a square garden in an open state without any building. Further
there was a condition that B would allow the other inhabitants of the area into the garden
for payment. A retained several houses in the square at the time. B sold the house, which
was again resold multiple times, finally reaching X, upon whom there were no conditions,
positive or negative. X was aware of the conditions, however. X built on the property. He
contended that the conditions were positive covenants only applicable on the original
parties and not subsequent purchasers. A filed for an injunction. Issue was whether
covenant can be enforced and whether a party shall be permitted to use the land in a
manner not consistent with the contract entered into by the seller with notice.
- Held: X was aware of the conditions of the contract and was bound by them. No one
purchasing with notice of an equity can stand in a different situation from that of the party
from whom he purchased.

Section 13

29. Girish Dutt v. Data Din 1934 - §13

- Facts: Property life interest in B and then Absolute interest to unborn sons. If there were no
unborn sons, but unborn daughters, then only a life interest created for them. If B has no son
or daughter, absolute interest for C. B dies childless.
- Held: Cannot create L.I for unborn child, property goes back to A. The deed was against S.13
with respect to the daughters as it only provided a life estate. The court held that where a
transfer in favour of a person is void under S.13, then any transfer in the same deed intended
to take effect or upon failure of such prior transfer is void. Regard has to be made to the
contents of the deed and not the effects
-

30. Javerbai v. Kablibai

- Facts: Alternate transfer – A transferred the property to B (LI) and then it should be
transferred to Unborn child (AI) after attaining the age of 21 – the 1st transfer is valid and not
the 2nd one.
- Held: Here the property should be transfer to B and not A because the will clearly states that
 if B does not have any children then he will become the absolute owner of the property. The
word alternatively is important

31. Bajrang Bahadur Singh V Bakhtraj Kuer 1956 SCJ 655(Sec.13)

- Facts: A died leaving a son and a widow of another son. He executed a will in favour of the
second son before his death and after him a life interest in favour of widow and unborn
heirs. The first son claimed the property on the grounds that the Will is invalid.
- Held: Will valid with regards to the persons in existence at the time of the testator’s death
and invalid to the rest. Thus, the property passed to the widow for her lifetime, after which it
would devolve by inheritance.
32. Tagore v. Tagore
- Held: After making provisions for the maintenance of his son, he proceeded to vest the
whole property both ancestral and self-acquired in trustees and bequeathed the beneficial
interest. Transferred property to unborn son. Holding: - Transfer to unborn child is void ab
initio.

33. Sopher v. Administrator General of Bengal 1944 (Transfer in favour of unborn persons)
- Facts: In this case, a testator directed that his property will be divided after the death of his
wife into as many parts as there shall be his children living at his death or who shall have pre-
deceased leaving issue living at his death. The income of each share was to be paid to each
child for life and then to grandchildren until they attain the age of 18 years and they will be
absolutely entitled to the property.
- Held: The bequest to the grandchildren was held to be valid by the PC. It observed: Where
under a bequest in the circumstances mentioned in Section 113 of the Act, there is a
possibility of the interest given to a beneficiary under the later bequest being defeated
either by a contingency or by a clause of defeasance, such a beneficiary does not receive the
interest bequeathed in the same unfettered form as that in which the testator held it, and
the bequest to him does not. Therefore, comprise the whole of the remaining interest of the
testator in the thing bequeathed. When such a beneficiary is not in existence at the date of
the testator’s death, the bequest to him is void under the section

Section 14

34. Ram Prasad v. Ram Mohit Hazara (1967) - §14

- Facts: Two brothers owned property. Property divided by partition, with a common drain and
two common passages. Covenant of pre-emption placed upon transfer. Question as to
whether this covenant was invalid as per S. 14 (perpetuity)
- Held: The rule against perpetuities is, not concerned with contracts as such or with
contractual rights and obligations as such. The rule as formulated falls within the branch of
the law of property and its true object is to restrain the creation of future conditional
interest in property. The rule of perpetuity concerns rights of property only and thus does
not affect the making of contracts which do not create rights of property.
- Covenant of pre-emption was binding on both parties as they had notice of it, and that
covenant of pre-emption was not hit by the rule against perpetuity and was enforceable
against the assignees of the original parties to the contract [overruled, cannot be passed
because personal interest]

35. Ram Nivas v. Nankoo - §14

- Held: Whether there is violation or not of the rule against perpetuity is to be seen from the
terms and conditions on paper and not what actually happened.
36. Kempraj v. Burton:
- Held: The main issue was, whether an option given to a lessee (tenant) to get the lease,
which is initially for a period of 10 years, renewed after every 10 years is hit by the rule of
perpetuity and is void.
- The court said: it is well known that the rule against perpetuity is founded on the principle
that the liberty of alienation shall not be exercised to its own destruction and that all
contrivances shall be void which tend to create a perpetuity or place property for ever out of
the reach of the exercise of the power of alienation. It was held that s. 14 is applicable only
when there is a transfer of property and the clause containing renewal after every 10 years
can by no means be regarded as creating an interest in property of the nature that would fall
within the ambit of s. 14.

Section 19 and 21

37. Lachman v. Baldeo

- Facts: A transferred his house to B with the condition that B will receive the possession of
the property when A and A’s wife’s passes away. After this, B sent a notice to A saying that
this is against his enjoyment of property
- Held: Court did not agree with B as A and his wife have life interest of the property and they
are not supposed to vacate the property - even if B is the owner of the house, A and his wife
have a life interest. A could do this by the virtue of a will but he chose to do this using the
concept of Section 19.

38. Sundar Bibi v. Rajendranarayan

- Facts: A compromise was reached, according to which L has life interest over the estate, and
after his death, R was supposed to get the possession of the property if R survives L. In case,
R fails to outlive L, then the property will go to lineal male descendants of R. Before the
death of L, whether R had contingent interest or vested interest?
- Held: R always had vested interest, lineal male descendants are anyway some of the heirs, R
has vested interest in the property, only the divesting of the interest as a manner is differing.

39. Rajesh Kanta Rao v. Shanti Devi - §21

- Held: Out of the two events specified that were to bring the trust to an end, one was
specified - interest of son was a vested interest. Emphasis of settlor in the case was not on
repayments but on benefits coming to the sons

40. PK Mohan Ram v. BN Anantachari - §21

- Held: To decide whether vested or contingent, document to be assessed as a whole

Section 20

41. Ram v. Atma Singh

- Facts: A testator transferred his property to his sons with the direction that the wife should
maintain the property. Was the property immediately vested by the sons or not? Whether
sons had the vested interest? At what time did the sons have the vested interest?
- Held: No interest was created in favour of the wife, she was simply given the right to
maintain the property. Therefore, the vesting was immediate and was with the sons. Even if
the wife had been given life interest, it would still be vested immediately in the favour of the
sons.
 42. K Vasanthappa v K. Chennabasappa AIR 1962 Mysore 98 (Section 13& 20)

- Facts: interest created in favour of an unborn person such as what is referred to under
Section 13 is dissimilar to the interest envisaged by section 20.
Section 20 refers to the creation of a limited interest by the transferor in favour of someone in
the first instance and the creation of a successive interest in someone else thereafter. In a
case like that, what Section 13 forbids is the creation of an interest in favour of the second
person unless that interest is the entire interest possessed by the transferor after the creation
of the interest on the first occasion. Section 13, therefore, has application only to cases where
the interest created on the first occasion, is a limited interest and such transfer is followed up
by the creation of another interest. But that is not what the maternal grandfather did in this
case. What he did was not to create a limited interest in favour of defendant 2, in the first
instance, but to transfer a property belonging to him in his favour and by the very transfer
which he made in favour of defendant 2, he created an interest for the benefit of the unborn
sons of Bandevva.

- Held: A case like that, it is plain, is governed not by the provisions of Section 13 of the
Transfer of Property Act, but by the provisions of Section 20

Section 22

43. Bull v. Pritchard

- Held: A transferred his property through a gift to B’s children who shall attain the age of 18
years. When you are transferring a property for a class, when the first child reaches the age
of 18, the property will be ascertained. This might even lead to exclusion of those children
who haven’t born till that time. When C attains the age of 18, his contingent interest will
become vested interest.

44. Rukhmanbai v Shivram AIR 1981 SC 1881(Vested Interest)

- Held: Interest of future born children is contingent until the death of the appellant. The
unborn children are the beneficiaries of the trust – they have to wait for appellant to die and
is a form of spes successionis

Section 27

45. Official Assignee of Madras v. Vedavalli

- Facts: A transfer was made to some other person. For a period of 10 years, the property was
left vacant because of the conditions that were given for a transfer.
- Held: Vesting of a property in case of a prior interest with a gift over provision it was held the
gift also failed