Category: General Rules of Transfer

ISSUE:

Whether the Trial Court was competent to pass a final decree for foreclosure though the preliminary decree was for sale?

Whether the respondent had the right to contend that he was entitled to redeem the said mortgage in view of the fact that he was the execution purchaser of part of the equity of redemption pendente lite?

RULE:

As per section 151 and section 152 of CPC, a court has the inherent power to correct a clerical mistake or accidental slip in its judgment, decree, or final order. If the preliminary decree contains an unintended error, the trial court can rectify it while passing the final decree to reflect its true intention.

As per section 52 of the transfer of property act, 1882, a purchaser pendente lite (during litigation) is bound by the outcome of the litigation. Such a purchaser cannot assert independent rights in contradiction to the final decree.

Order 34 rule 4 of CPC states that final decree should be in conformity with the preliminary decree but if a clerical final decree should be in conformity with the preliminary decree. However, where a clerical error is present in the preliminary decree, the court can correct it to ensure substantive justice.

ISSUE:

Whether an unregistered sale deed allow the mortgagee to claim protection under Section 53A (Doctrine of Part Performance)?

Whether the continued possession of a mortgagee qualify as an act in furtherance of part performance?

Whether the payment of Rs. 1,000 for stamp duty and registration expenses constitutes part performance?

RULE:

Protection under Section 53A is only available if there is a written contract, possession in furtherance of the contract, and willingness to perform obligations. Payment of money alone is not enough to qualify as part performance under Section 53A. Payment of money is an equivocal act, meaning it does not necessarily prove the existence of a sale agreement. Money can be recovered, unlike possession or structural changes to a property.

Acts done before a contract cannot be considered as acts in furtherance of the contract. A doctrine of part payment doctrine of part performance requires an act after and in furtherance of the contract.

ISSUE:

Whether a Muslim heir can legally renounce their future inheritance rights under Muslim Personal Law and the Transfer of Property Act, 1882?

Whether an heir who has accepted consideration for relinquishing their share can later revoke the relinquishment and claim inheritance under Muslim Law?

RULE:

Doctrine of Spes Successionis (Expectation of Inheritance)- Under Muslim Personal Law, an heir cannot transfer or renounce their right to inheritance before the ancestor's death. Section 6(a) of the Transfer of Property Act, 1882 states that the chance of an heir-apparent succeeding to an estate cannot be transferred.

Principle of Estoppel- As per Section 115 of Indian Evidence Act, 1872, if an heir accepts consideration for relinquishing their claim, they are barred (estopped) from reclaiming it later. This principle overrides the general rule under Muslim law that inheritance cannot be renounced before the ancestor's death. A Muslim heir cannot renounce an expectancy before the ancestor’s death, but if they voluntarily relinquish their share for consideration, the principle of estoppel applies, barring them from later claiming inheritance.

Public Policy Consideration- As per Section 23 of the Indian Contract Act, 1872, allowing heirs to reclaim property after accepting compensation would be against public policy.

ISSUE:

Whether the Appellant is entitled to the suit property hit by the doctrine of the lis pendens?

Whether a sale can be done when purchaser being pendente lite, under the Section 52 of the Transfer of Property Act?

RULE:

Whether the Appellant is entitled to the suit property hit by the doctrine of the lis pendens?

Whether a sale can be done when purchaser being pendente lite, under the Section 52 of the Transfer of Property Act?

ISSUE:

Whether the Respondent holds a share in the inherited suit property?

Whether there was election by Pallaniappa under Section 180 of the Indian Succession Act and if so whether the respondent would be bound by it?

RULE:

The election under Section 180 of the Succession Act would only arise where the legatee derives some benefit from the Will to which he would not be entitled except for the Will. In such case, he has to elect whether to confirm the Will or dissent from it.

Thus, election only arises where the legatee has to choose between his own property which might have been willed away to somebody else and the property which belongs to the testator and which the testator has given to the legatee by the Will.

ISSUE:

Whether the condition restraining alienation in the gift deed was valid under the Transfer of Property Act, 1882?

Whether defendant No.1 had right under gift deed dated 05.06.1957 to alienate the suit properties?

Whether Section 13 of the Transfer of Property Act (transfer for the benefit of an unborn person) applied to this case?

RULE:

As per section 10 of the Transfer of Property Act, 1882, conditions absolutely restraining alienation are void, except in lease cases. Section 10 expressly provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void. According to Section 10 any condition restraining the transferee the right of alienation is void.

As per section 13 of the Transfer of Property Act, 1882, transfers for the benefit of unborn persons must extend to their entire interest. It does not apply if the transfer is primarily made in favor of a living person.

A gift cannot impose absolute restrictions on the donee’s ability to transfer property.

ISSUE:

Whether the plaintiff as the legal character entitled to the right to claim declaration, under Section 42 of the Specific Relief Act?

Whether the lease executed in favor of the Appellant struck by the doctrine of lis pendens under Section 64 of CPC and Section 52 of the TPA?

RULE:

The existence of lessee rights would certainly affect the price an auction-purchaser would be prepared to pay for the property, what a mortgagee or one who had got the property attached could realize for the property to satisfy his dues.

ISSUE:

Whether the suit property purchased by the plaintiff was misled, fraudulent and erroneous made by the transferor, lead to the cancellation of sale deed?

RULE:

If at the time of transfer, the vendor might have defective title or have no title or no right or interest, however subsequently the transferor acquires the right, title, or interest and the contract of transfer subsists, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and the transferor has no option to raise the dispute in making the transfer.

The intention of Section 43 of TP Act is based on the principle of estoppel as well as equity. The intention seems to be that after procuring money and transferring the land, thereafter the transferor is estopped from saying that though he has sold the land on payment of sale consideration, still the transfer is not binding on him.
That is why Section 43 gives an option to the transferee and not the transferor.

ISSUE:

Whether there is a binding principal in the absence of an authority to sell?

Whether there could be a cancellation of alienations setting aside of documents of transfer of property, under the section 3, 7, 8, 54 and 41 of the Transfer of the Property Act?

RULE:

One is that the alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer. It may also open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property to the share of the transferor, so that the equities are worked out in a fair manner.

ISSUE:

Whether the Appellant (who is the wife of B. N. Subbarao) entitled to the one-fifth share in the properties mentioned in the Will of her deceased father-in-law?

Whether the interest created is a vested or a contingent interest, defined in Section 19 and 21 of The Transfer of Property Act?

RULE:

For the purpose of determining the date of vesting of the interest in the bequest, it is necessary to bear in mind about the distinction between a vested interest and the contingent interest.

An interest is said to vested interest when there is immediate right of present enjoyment or a present right for future enjoyment. Whereas, an interest is said to be contingent if the right of enjoyment is made dependent upon some event or condition that may or may not happen.

On the happening of the event or condition, a contingent interest becomes a vested interest.