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TRANSFER OF PROPERTYLAW
CHAPTER NO 3 (Section 54 to 57)
DEFINTION OF SALE:
Section 54, “A sale is transfer of ownership in exchange for a price paid or promised or
partly paid and partly promised.”
HOW SALE IS EFFECTED:
Section 54., A sale requires a registered instrument in case of:
i. Tangible immovable property of the value of RS 100 or more.
ii. A reversion.
iii. Any other intangible things.
In case of tangible immovable property worth less than RS 100, a sale can be made by;
a. A registered instrument, or
b. Delivery of the property.
DEFINITION OF CONTRACT OF SALE:
A contract for sale of immoveable property is a contract that a sale of such property shall
takes place on term settled between the parties.
RIGHTS AND LIABLITIES OF BUYER:
Following are the rights & liabilities of the buyer;
RIGHTS OF THE BUYER:
Before completion of sale, the buyer is entitled to:
(i) A charge on the property for purchase money already paid by him,
(ii) Interest on such purchase money,
(iii) Earnest and coasts awarded to him in a suit for specific performance, in case he
properly declines to accept delivery.
After completion of sale the buyer is entitled to:
(i) The benefit of any improvement or increase in the value of the property and
(ii) The rents and profit of the property.
LIABILITIES OF BUYERS:
Before the completion of sale the buyer is bound:
(i) To disclose to the seller any fact which materially increases the value of the
property and of which the buyer, but not the seller, is aware.
(ii) To pay or tender the purchase money.
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After completion of sale the buyer is bound:

(i) To bear any loss arising from destruction, injury or loss in the value of property.
(ii) To pay public charges and rents payable in respect of the property.
RIGHTS AND LIABILITY OF THE SELLER (section 55):
Following are the rights and liabilities of the seller;
RIGHTS OF SELLER:
Before completion of sale, the seller is entitled to the rents and profits, until ownership
passes to the buyer.
After completion of sale, the seller is entitled to a change on the property for his unpaid
purchase money.
LIABILITY OF SELLER:
Before completion of sale, the seller is bound;
(i) To disclose the buyer any material defect in the property of which of the seller is,
but the buyer is not aware.
(ii) To produce all documents of title for examination by the buyers.
(iii) To answer all questions of the buyers as regards the property and the title thereto.
(iv) To pay all public charges and rents up to the date of the sale.
After completion of sale;
(i) The seller is bound to give possession of the property to the buyer.
(ii) The seller is bound to deliver all documents of title to the buyer when the entire
purchase money has been paid.
MORTAGAGE:
Introduction:- Mortgage is the one kind of transfer and it is the one kind of title transfer of
specific immovable property. Property means; (i) the things itself or (ii) some or all the things in
a things.
So, as against sole or gift, mortgage is simply the transfer of an interest in the property
mortgaged. The purpose of it to lend money and it may be immediately or later on. Mortgage
creates pecuniary liability.
MEANING OF MORTGAGE:
Mortgage is the conveyance of title to property that is given as a security for the payment of
debt or the performance of a duty and that will become void upon payment or performance
according to the stipulated terms.
DEFINITION:
According to the Section 58-A of the TOP 1882;
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“A mortgage is the transfer of an interest in specific immovable property for the purpose of
securing the payment of money advanced by way of loan, an existing or future debt, or the
performance of an agreement which may give rise to a pecuniary liability.
ELEMENTS OF MORTGAGE:
1. There must be a transfer of an interest,
2. There must be a specific immovable property intended to be mortgaged.
3. The transfer must be made to secure the payment of a loan or to secure the performance
of a contract.
PARTIES TO MORTGAGE:
There are to two parties to mortgage;
1. Mortgager and
2. Mortgagee.
(1)MORTGAGER:
The transferor is called mortgager.
(2)MORTGAGEE:
The transferee is called mortgagee.
MORTGAGE MONEY:
The principle money and interest of which payment is secured for the time being are called
the mortgage-money.
MORDGAGE-DEED:
The instrument (if any) by which the transfer is effected is called a mortgage-deed.

DIFERENCE BETWEEN MORTGAGE AND SALE:

MORDGAGE:
 (i) Mortgage is a conditional transfer of property.
 (ii) In mortgage some rights are transferred.
 (iii) In mortgage ownership remains.
SALE:
 (i) Sale is a actual transfer of property.
 (ii) In sale all rights is transferred.
 (iii) In sale ownership is transferred.
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TYPES OR FORMS OR CLASSES OF MORTGAGE:

According to section 58 od TOP 1882, the types of mortgage are discussed below;
1. SIMPLE MORTGAGE,
2. MORTGAGE BY CONDITIONAL SALE,
3. USUFRUTUARY MORTGAGE,
4. ENGLISH MORTGAGE,
5. MORTGAGE BY DEPOSIT OF TITLE-DEEDS and
6. ANOMALOUS MORTGAGE.

(1)SIMPLE MORTGAGE:
In a simple mortgage;
i. Possession of the mortgaged property is not given to the mortgaged property is not given
to the mortgagee.
ii. The mortgager gives personal obligation to pay the mortgage money.
iii. The mortgager agrees that if he fails to pay, the mortgagee can have the property sold
through the court.
REMIDIES: Sale through the intervention od court. No foreclosure.
(2)MORTGAGE BY CONDITIONAL SALE:
In this type of mortgage, the mortgaged property is ostensibly sold to the mortgagee on the
following condition;
i. If the mortgage money is not paid on a certain date. The sale is to become absolute.
ii. But if such payment is made;
a. The sale is become void.
b. The buyer is to re-transfer the property to the seller.
REMIDIES: Foreclosure. No sale.
(3)USUFRURAR MORTGAGE:
In usufructuary mortgage, the mortgaged property is delivered to the mortgagee, who is
authorized to retain such property until payment of the mortgage money and in the meanwhile, to
receive rents and profits accruing from the property.
REMIDIES: No sale, no foreclosure only remedy is to retain the property until the mortgaged-
money is paid.
(4)ENGLISH MORTGAGEGE:
In English mortgage, the mortgager;
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i. Bind himself to repay the mortgage money.

ii. Transfers the property to the mortgage. On condition that when the mortgage money is
paid, the property will be re-transferred to the mortgager.
REMIDIES: Sale only, no foreclosure.
(5)MORTGAGE BY DEPOSIT OF TITLE DEEDS (Equitable mortgage):
In this type of mortgage, the mortgager delivers to mortgagee, documents of title of the
mortgage-property, with intent to create a security thereon.
REMEDIES: Sale through intervention of court. No foreclosure.
(6)ANOMALOUS MORTGAGE:
A mortgage which does not fall in above category is called anomalous mortgage.
REMEDIES: Sale, if allow by the term of mortgage. Foreclosure, if allowed by the term of
mortgage.
RIGHT OF MORTGAGER:
Following are the rights of mortgager;
(1)REDEMPTION: (section-60)
At any time after the principal money has become due, on payment (or tender) of the
mortgage-money, the mortgager has right;
(a) To get back his property,
(b) To demand:
© Return of the mortgage-instrument and title deeds.
(c) Delivery of possession of mortgage property and
(d) Re-transfer of the property.
This right of redemption is a statutory right based on the maxim, “Once a mortgage always a
mortgage”.
Any condition in the mortgage deed which takes away this right will be a clog on
redemption and will not be valid.
REDEMPTION CAN BE EXERCISED:
(1) By paying mortgage-money to the mortgagee.
(2) By passing the mortgage-money in court.
(3) By a regular suit for redemption.
(2)RE-TRANSFER TO A THIRD PAARTIES: (SECTION-60A)
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The mortgage can require the mortgagee to assign the mortgage-debt to a third party, and
transfer the property to such person instead of re-transferring it to the mortgager.
(3)RIGHT TO INSPECTION OF DOCUMENTS:(S-60B)
A mortgager can, at his cost, inspect and make copy from documents of title of the property,
which are with the mortgagee.
(4)RIGHT TO GRANT LEASE: (S-65 & 65-A)
Unless a contrary intention is expressed in the mortgage-deed, the mortgager who is lawfully
in possession of the property, can grant a lease of property, subject to the condition mention in
section 65 of TOP.
(5)RIGHT TO RTEASONABLE WASTE:
A mortgager in possession is not liable for allowing the property to deteriorate. But he can
not commit any act which is destructive or permanently injurious to the property, if he security
would thereby be rendered insufficient.
IMPLIED CONTRACTS BY THE MOTGAGOR: (S-65)
In the absence of a contract a contrary, the mortgagor is deemed to have entered into the
following five implied contracts with mortgagee;
(i) Covenant for title,
(ii) Covenant for payment of public charges,
(iii) Covenant for defense of title,
(iv) Covenant for payment of rent and
(v) Covenant for payment of prior encumbrances.
LIABILITEIS OF MORTGAGOR:
Under section-65 of TOP ACT 1882 the liabilities of mortgagor are as following;
(1) A mortgagor must have a legal title of the property.
(2) The mortgagor is liable to pay all the taxes if the property is not in the possession of
the mortgagee.
(3) The mortgagor is liable to pay lease rent of the mortgaged property in under the lease.
(4) The mortgagor is liable to comply also with the terms and condition of previous
mortgage deed if any relating with the sane property.

LEASE: (SECTION-105)
Defi; A lease of immovable property is a transfer of right to enjoy such property for certain
tine (or in property) in consideration of;
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(i) A price, paid or promised or

(ii) Money or
(iii) A share of crops or
(iv) Service or
(v) Anything of value.
To rendered periodically to the transfer or by the transferee, who accepts the transfer on such
condition.
PARTIES TO LEASE:
There are two parties to lease;
(i) LESSOR and
(ii) LESSEE.
(I)LESSOR: The transferor is called the lessor.
(II)LESSEE: The transferee is called the lessee.
PREMIUM:
The price is called the premium.
RENT:
The money, crops, services or other things to be rendered is called the rent.
NOTE:
In the following three cases, a lease of immovable property can be made only by a registered
instrument;
(a) A lease from year to year.
(b) A lease for a term exceeding on year and
(c) A lease reserving a yearly rent.
In all other cases a lease can be made;
(i) By registered instrument or
(ii) By an oral agreement along with delivery of possession.
DURATION & TERMINATION:
A lease for agricultural or manufacturing purposes is deemed to be a lease from year to year.
It is terminable by a six month, notice expiring with the end of year of tenancy.
A lease from any other purposes is deemed to be a lease from month to month. It is
terminable by 15 days, notice expiring with the end of a month of tenancy.
ESSENTIAL OF LEASE:
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(1) It must relate to an immoveable property.

(2) The duration of the right of enjoyment must be fixed.
(3) It must be for consideration.
(4) The transfer must be accepted by transferee.
(5) Right must be that of enjoyment of immoveable property.
(6) There must be a transfer of such rights.
(7) Right of transfer is an interest in property.
(8) Consideration must be of particular kind namely, premium or rent.

EXCHANGE: (SECTION 118-121)

Defi: According to section 118 of the TOP ACT 1882,
“When two persons, mutually transfer the ownership of one thing in exchange for the
ownership of one thing in exchange for the ownership of another, neither thing or, both things
being money only, such a transaction is called an “exchange”.
An exchange is to be made in the same manner as a sale.
FEATURES OR CHARACTERISTICS OF AXCHANGE:
Following are the characteristics of exchange;
(1)TRANSFER OF OWNERSHIP:
The ownership of one party must be exclusive of the ownership of the other.
(2)EXCHANGE INCLUDE BARTER:
Exchange is not only exchange of land but also of barter of goods.
(3)PROPERTIES CAN BE MOVABLE OR IMMOVABLE:
The definition of exchange is not limited to immovable but also covers movable things.
RIGHT OF PARTY DERIVED THING RECEIVED IN EXCHNAGE: (SECTION-119)
According to section 119 TOP act 1882, if any party to an exchange is deprived of the
property due to a defect in the title of the other party, such other party is liable to him;
(i) For any loss caused there by or
(ii) At the option of the party sop deprived, for the return of the things transferred, if
it is still in possession of;
(a) The other party,
(b) His legal representative or
(c) A transfer from him without consideration.
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RIGHTS AND LIABILITIES FOR PARTIES:

According to section-120, each party to an exchange has the rights and is subjected to the
liability of seller as regards that which he gives, and the right and the liabilities of a buyers as
regards that which he takes.
EXCHANGE OF MONEY:
According to section 121 of the TOP act, when there is an exchange of money, each party is
deemed to warrant the geniuses of the money given by him.

GIFTS: (SECTION 122-129)

Defi: A gift is the transfer of property made;
(i) Voluntarily and
(ii) Without consideration
By one person to another person.
ACCEPTANCE WHEN TO BE MADE:
The acceptance must be made during the donor’s life time, and while he is still capable of
giving .
If the donee dies before acceptance, the gift will be void.

PARTIES TO GIFT:
There are two parties to a gift;
(1)DONORS:
The person making the gift is called the DONOR.
(2)DONEE:
The person to whom it is made is called DONEE.
ESSENTIAL OF GIFT:
The essential of git are;
(1) There must be transfer of ownership of property.
(2) The property must be existing, whether movable or immovable.
(3) The transfer must be without consideration.
(4) The transfer must be voluntarily.
(5) The transferee (donee) must accept the transaction.
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VOID GIFT:
(1) Gifts made for unlawful purpose (section-6).
(2) Gifts subject to condition, and the fulfillment of which is impossible (Section-6).
(3) If donee dies before the acceptance (section-122).
ONEROUS GIFTS:
(1) If the gift is one single transfer, and a part of it is burdened with an obligation, the donee
gets nothing unless he accepts it fully.
(2) But if the gift is in the form of two or more separate and independent transfer, he can
accepts one and refuse the others.
(3) If a Donee who is not competent accepts an onerous gift, he is not bound by his
acceptance to contract, he retain the property being aware of the obligation, he is bound by the
obligation.
HOW GIFT IS EFFECT UNDER TOP ACT:
A gift of immovable property can be made only by a registered instrument signed by the
Donor and attested by two witnesses.
A gift of movable property can be made by;
(1) A registered instrument signed by Donor and attested by two witnesses. Or
(2) By the delivery of the property.
REVOCATION OR SUSPENTION OF GIFT:
Once a gift is made, it is irrevocable, except in two cases;
(1)When the parties agree that on the happening of a specified event (not dependent on the
donor will), the gift is to stand suspend or revoked.
(2)A gift can also be revoked in those cases in which a contract can be rescinded (eg; for
fraud, misrepresentation etc). these rules do not, however, effect, the rights of a transferee for
consideration without notice.
FOR EXAMPLE:
“A” gives a field to “B”, reserving himself, which “B’s” assent, the right to take back the
field in case “B” and his descendants dies before “A”. “B” dies without descendants in “A’s”
lifetime. “A” may take back the field.
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