Table of Contents

 Introduction
 What may be referred to as a gift
o Gift
o Parties to a gift transfer
 Donor
 Donee
o Essential elements
 Transfer of ownership
 Existing property
 Transfer without consideration
 Voluntary transfer with free consent
 Acceptance of gift
 Modes of making a gift
o Immovable properties
o Movable properties
o Actionable claims
 A gift of future property
 A gift made to more than one donee
 Provisions relating to onerous gifts
 Universal donee
 Suspension or revocation of gifts
o Revocation by mutual agreement
o Revocation by the rescission of the contract
o Bonafide purchaser
 Exceptions
o Donations mortis causa
o Muslim-gifts (Hiba)
 Conclusion
 References

Introduction
A Gift is generally regarded as a transfer of ownership of a property where the
sender willingly brings into effect such transfer without any compensation or
consideration in monetary value. It may be in the form of moveable or
immoveable property and the parties may be two living persons or the transfer
may take place only after the death of the transferor. When the transfer takes
place between two living people it is called inter vivos, and when it takes place
after the death of the transferor it is known as testamentary. Testamentary
transfers do not fall under the scope of Section 5 of the Transfer of Property Act,
and thus, only inter vivos transfers are referred to as gifts under this Act.

If the essential elements of the gift are not implemented properly it may
become revoked or void by law. There are many provisions pertaining to the
gifts. All such provisions, for example, types of property which may be gifted,
modes of making such gift, competent transferor, suspension and revocation of
gift, etc. are discussed in this article.
What may be referred to as a gift
Gift
Section 122 of Transfer of Property Act defines a gift as the transfer of an
existing moveable or immovable property. Such transfers must be made
voluntarily and without consideration. The transferor is known as the donor and
the transferee is called the donee. The gift must be accepted by the donee. This
Section defines a gift as a gratuitous transfer of ownership in some property that
is already existing. The definition includes the transfer of both immovable and
moveable property.

Parties to a gift transfer

Donor
The donor must be a competent person, i.e., he must have the capacity as well
as the right to make the gift. If the donor has the capacity to contract then he is
deemed to have the capacity to make the gift. This implies that at the time of
making a gift, the donor must be of the age of majority and must have a sound
mind. Registered societies, firms, and institutions are referred to as juristic
persons, and they are also competent to make gifts. Gift by a minor or insane
person is void. Besides capacity, the donor must also have the right to make a
gift. The right of the donor is determined by his ownership rights in the property
at the time of the transfer because gift means the transfer of the ownership.

Donee
Donee does not need to be competent to contract. He may be any person in
existence at the date of making the gift. A gift made to an insane person, or a
minor, or even to a child existing in the mother’s womb is valid subject to its
lawful acceptance by a competent person on his/her behalf. Juristic persons such
as firms, institutions, or companies are deemed as competent donee and gift
made to them is valid. However, the donee must be an ascertainable person.
The gift made to the general public is void. If ascertainable, the donee may be
two or more persons.

Essential elements
There are the following five essentials of a valid gift:
 1. Transfer of ownership
2. Existing property
3. Transfer without consideration
4. Voluntary transfer with free consent
5. Acceptance of the gift

Transfer of ownership
The transferor, i.e., the donor must divest himself of absolute interest in the
property and vest it in the transferee, i.e., the donee. Transfer of absolute
interests implies the transfer of all the rights and liabilities in respect of the
property. To be able to effect such a transfer, the donor must have the right to
ownership of the said property. Nothing less than ownership may be transferred
by way of gift. However, like other transfers, the gift may also be made subject
to certain conditions.

Existing property
The property, which is the subject matter of the gift may be of any kind,
movable, immovable, tangible, or intangible, but it must be in existence at the
time of making a gift, and it must be transferable within the meaning of Section
5 of the Transfer of Property Act.

Gift of any kind of future property is deemed void. And the gift of spes
successionis (expectation of succession) or mere chance of inheriting property
or mere right to sue, is also void.

Transfer without consideration

A gift must be gratuitous, i.e., the ownership in the property must be transferred
without any consideration. Even a negligible property or a very small sum of
money given by the transferee in consideration for the transfer of a very big
property would make the transaction either a sale or an exchange.
Consideration, for the purpose of this section, shall have the same meaning as
given in Section 2(d) of the Indian Contract Act. The consideration is pecuniary
in nature, i.e., in monetary terms. Mutual love and affection is not pecuniary
consideration and thus, property transferred in consideration of love and
affection is a transfer without consideration and hence a gift. A transfer of
property made in consideration for the ‘services’ rendered by the donee is a gift.
But, a property transferred in consideration of donee undertaking the liability of
the donor is not gratuitous, therefore, it is not a gift because liabilities evolve
pecuniary obligations.

Voluntary transfer with free consent

The donor must make the gift voluntarily, i.e., in the exercise of his own free will
and his consent as is a free consent. Free consent is when the donor has the
complete freedom to make the gift without any force, fraud coercion, and undue
influence. Donor’s will in executing the deed of the gift must be free and
independent. Voluntary act on a donor’s part also means that he/she has
executed the gift deed in full knowledge of the circumstances and nature of the
transaction. The burden of proving that the gift was made voluntarily with the
free consent of the donor lies on the donee.

Acceptance of gift
The donee must accept the gift. Property cannot be given to a person, even in
gift, against his/her consent. The donee may refuse the gift as in cases of non-
beneficial property or onerous gift. Onerous gifts are such where the burden or
liability exceeds the actual market value of the subject matter. Thus,
acceptance of the gift is necessary. Such acceptance may be either express or
implied. Implied acceptance may be inferred from the conduct of the donee and
the surrounding circumstances. When the donee takes possession of the
property or of the title deeds, there is acceptance of the gift. Where the
property is on lease, acceptance may be inferred upon the acceptance of the
right to collect rents. However, when the property is jointly enjoyed by the donor
and donee, mere possession cannot be treated as evidence of acceptance.
When the gift is not onerous, even minimal evidence is sufficient to prove that
the gift has been accepted by donee. Mere silence of the donee is indicative of
the acceptance provided it can be established that the donee had knowledge of
the gift being made in his favour.

Where the deed of gift categorically stated that the property had been handed
over to the donee and he had accepted the same and the document is
registered, a presumption arises that the executants are aware of what was
stated in the deed and also of its correctness. When such presumption is
coupled with the recital in the deed that the donee had been put in possession
of the property, the onus of disproving the presumption would be on the donor
and not the donee.

Where the donee is incompetent to contract, e.g., minor or insane, the gift must
be accepted on his behalf by a competent person. The gift may be accepted by
a guardian on behalf of his ward or by a parent on behalf of their child. In such a
case, the minor, on attaining majority, may reject the gift.

Where the donee is a juristic person, the gift must be accepted by a competent
authority representing such legal person. Where the gift is made to a deity, it
may be accepted by its agent, i.e., the priest or manager of the temple.
Section 122 provides that the acceptance must be made during the lifetime of
the donor and while he is still capable of giving. The acceptance that comes
after the death or incompetence of the donor is no acceptance. If the gift is
accepted during the life of the donor but the donor dies before the registration
and other formalities, the gift is deemed to have been accepted and the gift is
valid.

Modes of making a gift

Section 123 of the Transfer of Property Act deals with the formalities necessary
for the completion of a gift. The gift is enforceable by law only when these
formalities are observed. This Section lays down two modes for effecting a gift
depending upon the nature of the property. For the gift of immovable property,
registration is necessary. In case the property is movable, it may be transferred
by the delivery of possession. Mode of transfer of various types of properties are
discussed below:

Immovable properties
In the case of immovable property, registration of the transfer is necessary
irrespective of the value of the property. Registration of a document including
gift-deed implies that the transaction is in writing, signed by the executant
(donor), attested by two competent persons and duly stamped before the
registration formalities are officially completed. In the case of Gomtibai v.
Mattulal, it was held by the Supreme Court that in the absence of written
instrument executed by the donor, attestation by two witnesses, registration of
the instrument and acceptance thereof by the donee, the gift of immovable
property is incomplete.

The doctrine of part performance is not applicable to gifts, therefore all the
conditions must be complied with. A donee who takes possession of the land
under unregistered gift-deed cannot defend his possession on being evicted.
The following must be kept in mind regarding the requirement of registration:

 Registration of the gift of immovable property is must, however, the

gift is not suspended till registration. A gift may be registered and
made enforceable by law even after the death of the donor, provided
that the essential elements of the gift are all present.
 In case the essential elements of a valid gift are not present, the
registration shall not validate the gift.

It has been observed by the courts that under the provisions of the Transfer of
Property Act, Section 123, there is no requirement for delivery of possession in
case of an immovable gift. The same has been held in the case of Renikuntla
Rajamma v. K. Sarwanamma that the mere fact that the donor retained the right
to use the property during her lifetime did not affect the transfer of ownership of
the property from herself to the donee as the gift was registered and accepted
by the donee.

Movable properties
In the case of movable properties, it may be completed by the delivery of
possession. Registration in such cases is optional. The gift of a movable property
effected by delivery of possession is valid, irrespective of the valuation of the
property. The mode of delivering the property depends upon the nature of the
property. The only things necessary are the transfer of the title and possession
in favour of the donee. Anything which the parties agree to consider as delivery
may be done to deliver the goods or which has the effect of putting the property
in the possession of the transferee may be considered as a delivery.

Actionable claims
Actionable claims are defined under Section 3 of the Transfer of Property Act. It
may be unsecured money debts or right to claim movables not in possession of
the claimant. Actionable claims are beneficial interests in movable. They are
thus intangible movable properties. Transfer of actionable claims comes under
the purview of Section 130 of the Act. Actionable claims may be transferred as
gift by an instrument in writing signed by the transferor or his duly authorised
agent. Registration and delivery of possession are not necessary.

A gift of future property

Gift of future property is merely a promise which is unenforceable by law.
Thus, Section 124 of the Transfer of Property Act renders the gift of future
property void. If a gift is made which consists of both present as well as future
property, i.e., one of the properties is in existence at the time of making the gift
and the other is not, the whole gift is not considered void. Only the part relating
to the future property is considered void. Gift of future income of a property
before it had accrued would also be void under Section 124.

A gift made to more than one donee

Section 125 of the Act says that in case a property is gifted to more than one
donee, one of whom does not accept it, the gift, to the extent of the interest
which he would have taken becomes void. Such interest reverts to the transferor
and does not go to the other donee.

A gift made to two donees jointly with the right of survivorship is valid, and upon
the death of one, the surviving donee takes the whole.

Provisions relating to onerous gifts

Onerous gifts refer to the gifts which are a liability rather than an asset. The
word ‘onerous’ means burdened. Thus, where the liabilities on a property
exceed the benefits of such property it is known as an onerous property. When
the gift of such a property is made it is known as an onerous gift, i.e., a non-
beneficial gift. The donee has the right to reject such gifts.

Section 127 provides that if a single gift consisting several properties, one of
which is an onerous property, is made to a person then that person does not
have the liberty to reject the onerous part and accept the other property. This
rule is based upon the principle of “qui sentit commodum sentire debet et onus”
which implies that the one who accepts the benefit of a transaction must also
accept the burden of it. Thus, when two properties, one onerous and other
prosperous, are given in gift to a donee in the same transaction, the donee is
put under the duty to elect. He may accept the gift together with the onerous
property or reject it totally. If he elects to accept the beneficial part of the gift,
he is bound to accept the other which is burdensome. However, an essential
element of this Section is a single transfer. Both the onerous and prosperous
properties must be transferred in one single transaction only then they require
the obligation to be accepted or rejected in a joint manner.

In case the onerous gift is made to a minor and such donee accepts the gift, he
retains the right to repudiate the gift on attaining the age of majority. He may
accept or reject the gift on attaining majority and the donor cannot reclaim the
gift unless the donee rejects it on becoming a major.

Universal donee
The concept of universal donee is not recognised under English law, although
universal succession, according to English law is possible in the event of the
death or bankruptcy of a person. Hindu law recognises this concept in the form
of ‘sanyasi’, a way of life where people renounce all their worldly possessions
and take up spiritual life. A universal donee is a person who gets all the
properties of the donor under a gift. Such properties include movables as well as
immovables. Section 128 lays down in this regard that the donee is liable for all
the debts and liabilities of the donor due at the time of the gift. This section
incorporates an equitable principle that one who gets certain benefits under a
transaction must also bear the burden therein. However, the donee’s liabilities
are limited to the extent of the property received by him as a gift. If the
liabilities and debts exceed the market value of the whole property, the
universal donee is not liable for the excess part of it. This provision protects the
interests of the creditor and makes sure that they are able to chase the property
of the donor if he owes them.

Suspension or revocation of gifts

Section 126 of the Act provides the legal provisions which must be followed in
case of a conditional gift. The donor may make a gift subject to certain
conditions of it being suspended or revoked and these conditions must adhere
to the provisions of Section 126. This Section lays down two modes of revocation
of gifts and a gift may only be revoked on these grounds.

Revocation by mutual agreement

Where the donor and the donee mutually agree that the gift shall be suspended
or revoked upon the happening of an event not dependent on the will of the
donor, it is called a gift subject to a condition laid down by mutual agreement. It
must consist of the following essentials:

 The condition must be expressly laid down

 The condition must be a part of the same transaction, it may be laid
down either in the gift-deed itself or in a separate document being a
part of the same transaction.
 The condition upon which a gift is to be revoked must not depend
solely on the will of the donor.
 Such condition must be valid under the provisions of law given for
conditional transfers. For eg. a condition totally prohibiting the
alienation of a property is void under Section 10 of the Transfer of
Property Act.
 The condition must be mutually agreed upon by the donor and the
donee.
 Gift revocable at the will of the donor is void even if such condition is
mutually agreed upon.

Revocation by the rescission of the contract

Gift is a transfer, it is thus preceded by a contract for such transfer. This
contract may either be express or implied. If the preceding contract is rescinded
then there is no question of the subsequent transfer to take place. Thus, under
Section 126, a gift can be revoked on any grounds on which its contract may be
rescinded. For example, Section 19 of the Indian Contract Act makes a contract
voidable at the option of the party whose consent has been obtained forcefully,
by coercion, undue influence, misrepresentation, or fraud. Thus, if a gift is not
made voluntarily, i.e., the consent of the donor is obtained by fraud,
misrepresentation, undue influence, or force, the gift may be rescinded by the
donor.

The option of such revocation lies with the donor and cannot be transferred, but
the legal heirs of the donor may sue for revocation of such contract after the
death of the donor.

The limitation for revoking a gift on the grounds of fraud, misrepresentation, etc,
is three years from the date on which such facts come to the knowledge of the
plaintiff (donor).

The right to revoke the gift on the abovementioned grounds is lost when the
donor ratifies the gift either expressly or by his conduct.

Bonafide purchaser
The last paragraph of Section 126 of the Act protects the right of a bonafide
purchaser. A bonafide purchaser is a person who has purchased the gifted
property in good faith and with consideration. When such a purchaser is
unfamiliar with the condition attached to the property which was a subject of a
conditional gift then no provision of revocation or suspension of such gift shall
apply.

Exceptions
Section 129 of the Act provides the gifts which are treated as exceptions to the
whole chapter of gifts under the Act. These are:

 Donations mortis causa

These are gifts made in contemplation of death.
  Muslim-gifts (Hiba)
These are governed by the rules of Muslim Personal Law. The only essential
requirements are declaration, acceptance and delivery of possession.
Registration is not necessary irrespective of the value of the gift. In case of a gift
of immovable property worth more than Rupees 100, Registration under Section
17 of the Indian Registration Act is must, as it is applicable to Muslims as well.
For a gift to be Hiba only the donor is required to be Muslim, the religion of the
donee is irrelevant.

Conclusion
To constitute a transfer as a gift it must follow the provisions of the Transfer of
Property Act. This Act extensively defines the gift itself and the circumstances of
the transfer of such a gift. The gift, being a transfer of the ownership rights,
must be in possession and ownership of the transferee and must be existing at
the time of making the transfer. The transferor must be competent to make
such transfer but the transferee may be any person. In case the transferee is
incompetent to contract, the acceptance of gift must be ratified by a competent
person on his/her behalf. Gift of future property is void. Partial acceptance of
prosperous gifts and rejection of onerous gifts is not valid either. The
acceptance of a gift entails the acceptance of the benefits as well as the
liabilities coupled with such a gift. A gift may be revoked only by a mutual
agreement on a condition by the donor and the donee, or by rescinding the
contract pertaining to such gift. The Donations mortis causa and Hiba are the
only two kinds of gifts which do not follow the provisions of the Transfer of
Property Act.

Comparison Chart

BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

Meaning When in a contract of When in a contract of sale

sale, the exchange of the parties to contract
goods for money agree to exchange the
consideration takes goods for a price at a
place immediately, it is future specified date is
known as Sale. known as an Agreement to
Sell.
 BASIS FOR
SALE AGREEMENT TO SELL
COMPARISON

Nature Absolute Conditional

Type of Contract Executed Contract Executory Contract

Transfer of risk Yes No

Title In sale, the title of In an agreement to sell, the

goods transfers to the title of goods remains with
buyer with the transfer the seller as there is no
of goods. transfer of goods.

Right to sell Buyer Seller

Consequences of Responsibility of buyer Responsibility of seller

subsequent loss or
damage to the
goods

Tax VAT is charged at the No tax is levied.

time of sale.

Suit for breach of The buyer can claim Here the buyer has the
contract by the damages from the seller right to claim damages
seller and proprietary remedy only.
from the party to whom
the goods are sold.

Right of unpaid Right to sue for the Right to sue for damages.
seller price.
Immovable property
The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property is the
Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive terminology.

i. According to Section 3 of that Act, "Immovable Property" does not include standing timber, growing
crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute
immovable property and machinery, if embedded in the building for the beneficial use thereof, must
be deemed to be a part of the building and the land on which the building is situated.

ii. As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land,
benefits to arise out of land and things attached to the earth, or permanently fastened to anything
attached to the earth". This definition of immovable property is also not exhaustive;

iii. Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of land, and things attached to the earth or permanently
fastened to anything which is attached to the earth but not standing timber, growing crops nor
grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which extends to
the whole of India, except the State of Jammu and Kashmir, is comprehensive. The above definition
implies that building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry,
fishery, a lease of land.

iv. The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per
Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :

a. Any land or any building or part of a building, and includes, where any land or any building or part
of a building is to be transferred together with any machinery, plant, furniture, fittings or other things,
such machinery, plant, furniture, fittings and other things also.

Any rights in or with respect to any land or any building or part of building (whether or not including
any machinery, plant, furniture, fittings or other things therein) which has been constructed or which
is to be constructed, accruing or arising from any transaction (whether by way of becoming a
member of, or acquiring shares in, a co-operative society, or other association of persons or by way
of any agreement or any arrangement of whatever nature, not being a transaction by way of sale,
exchange or lease of such land, building or part of a building.

Defining Immovable Property

If property is immovable, this means that it is firmly fixed to the ground.
For example, a home represents immovable property, as it has literally
been constructed onto and into the earth below it. When someone
purchases a home, part of the immovable property they acquire is also the
land that the home is sitting on.

From the perspective of real estate, immovable property includes not only
the house itself but also the land surrounding the house. Likewise, any
items or additions to a home or property which are vital to its operation,
such as an air conditioning unit or drainage system, are also considered
immovable property. Certain protections are offered to immovable
property, one of the most significant being that these items cannot be
altered in any form or fashion without explicit consent from the owner.

OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P

Act, 1882’) was intended to define and amend the existing laws and
not to introduce any new principle. It applies only to voluntary
transfers. The following may be enumerated as the objectives of the
Act:

a) As per the preamble of the Act, the T P Act, 1882 is to amend or

regulate the law relating to transfer of property by the acts of the
parties.

b) The Act provides a clear, systematic and uniform law for the
transfer of immovable property.

c) The Act completes the Code of Contract since it is an enacted

law for transfers that take place in furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882

provides a law parallel to the existing laws of testamentary and
intestate transfers.
e) The Act is not exhaustive and provides scope to apply the
principles of Justice, Equity and Good Conscience if a particular case
is not governed by any provision of law.

General Principles of Transfer of Property are as follows :

1.The property must be transferable. (Section 6):
It specifically speaks about, what may be transferred. Property of any kind may be
transferred, except as otherwise provided by this act or even by any other law for time
being in force.
2.Restrains on Alienation of Property. (Section 10):
Section 10 of the Act states that any restriction or limitation that ‘absolutely’ restrains the
buyer or transferee from alienating the property is a void condition. But there exist two
exceptions to this rule which are:
a.In cases of lease where a restraint is for the benefit of the lesser or the estate leased
out.
b.Where the property is transferred for the benefit of a woman who is not a Hindu,
Muslim or a Buddhist, with a condition that she doesn’t. Have the power during her
marriage to transfer or create any encumbrance in the sale of property transferred to
her.Here, it must be taken into consideration that Section 10 only bars an absolute
restraint on alienation whereas a partial restraint is permissible.
3.Transfer to an Unborn Person (Section 13):
Section 13 of the Transfer of Property Act, 1882 says that a transfer cannot be directly
made to an unborn person. The interest in favour of an unborn person must always be
preceded by a prior interest created in favour of a living person. The transfer to an
unborn person must be absolute and there should be no further transfer from him to any
other person.
4.Rule against Perpetuity (Section 14):
No transfer of property can operate to create an interest which is to take effect after the
life-time of one or more persons living at the date of such transfer, and the minority of
some person who shall be in existence at the expiration of that period, and to whom, if
he attains full age, the interest created is to belong.
5.Vested and Contingent Interest (Section 19 & 21) :
Section 19 of the Transfer of Property Act, 1882 states that it is an interest which is
created in favour of a person where time is not specified or a condition of the happening
of a specified certain event. The person having the vested interest does not get the
possession of that property but has the expectancy to receive it upon happening of a
specified certain event.
Section 21 of the Transfer of Property Act, 1882 states that it is an interest which is
created in favour of a person on a condition of the happening of a specified uncertain
event. The person having the contingent interest does not get the possession of that
property but has the expectancy to receive it upon happening of that event but will not
receive the property if the event does not happen as the condition is not fulfilled.
6.Conditional Transfer (Section 25) :
It means that any transfer that happens on the fulfillment of a condition that is imposed
on the other party for the transfer of property.
7.Doctrine of Priority (Section 48) :
This rule is based on the maxim “Qui prior est tempore potior est jure” which means that
“he who is prior in time is better in law, meaning that the subsequent dealings by the
transferor of the same property cannot prejudice the rights of the transferee of the same
property (prior transferee)”.
When a transferor transfers the same property in favour of several transferees, each
transferee will take the property with the rights of the former transferee. It is also based
upon the principle that no man can transfer the title other than which he is entitled to.
8.Transfer by Ostensible owner (Section 41):
Transfer by ostensible owner : “Where, with the consent, express or implied, of the
persons interested in immoveable property, a person is the ostensible owner of such
property and transfers the same for consideration, the transfer shall not be voidable on
the ground that the transferor was not authorised to make it: provided that the
transferee, after taking reasonable care to ascertain that the transferor had power to
make the transfer, has acted in good faith.”
Section 41 says that, following are the essential which shall keep into mind these
are:
A.There is a transfer of immoveable property.
B.Transfer is by Ostensible Owner.
C.Consent must be obtained from Real Owner and it may be express or implied.
D.The transfer is for Consideration.
E.The transferee has acted in good faith.
F.The transferee (Third party) has exercised reasonable care in finding out the power of
the transferor to make the transfer.
9.Rule of Estoppel (Section 43):
The doctrine of feeding the grant by estoppel is based on the maxim ‘nemo dat quod
nonhabet’ which implies that ‘no one can give to another, which he himself does not
possess’.
Section 43 of the Transfer of Property Act lays down “where a 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”.
10.Doctrine of lis Pendence (Section 52):
During the pendency in any Court having authority within the limits of India excluding
the State of Jammu and Kashmir or established beyond such limits by the Central
Government, of 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 or otherwise dealt with by any party to the suit or proceeding so as to affect
the rights of any other party thereto under any decree or order which may be made
therein, except under the authority of the court and on such terms as it may impose.
Essentials of doctrine of Lis Pendence:
A.Pendency of suit or proceeding.
B.Pending in the court of competent jurisdiction.
C.There is a right involved which is of immovable property.
D.Suit or proceeding must not be collusive.
E.Property in dispute must be transferred.
F.Transfer affects the right of other party.
Case Law : Bellany vs. Sabine
In this English case, it was held that, if there is any dispute regarding any property
which is immovable one, in such situation property cannot be transferred when the
litigation on that property is pending in the court of law.
11.Fraudulent Transfer (Section 53)
In order to attract this section, there must be a transfer. The transfer must be of
immovable property. The transfer must be a real one which creates a vested title in
favour of the third party. Fictitious transfers do not attract this section. The fictitious
transfer is where the transferor remains the real owner of the property. Hence, in order
to set aside the transfer under section 53, it has to be proved that the transfer was a
real one and not a sham one.
12.Rule of Part Performance (Section 53A):
Doctrine of Part Performance prevents a transferor from taking any advantage on
account of non registration of documents, the provison this is that the transferee has
performed his part of the contract and in pursuance to that performance; the transferee
has taken possession of some part of the property.
Case Law : D.S. Parvarthamma v. A. Srinivasan
In this case it was held that, where a person is already in possession of a property prior
to contract, some act of part-performance done in furtherance of the contract would
reap benefit to the transferee.