CASE LAWS FOR PROPERTY LAW

Week 2: Types of Property: Definition of Movable and Immovable Property

Section 3 TPA. Immovable property does not include standing timber, growing grass or
crops.
TYPES OF PROPERTIES

1. Anand Behera v. State of Orissa

Issue: whether fishing on lands constituted profit pendre and if that formed part of immovable
property.

Held: Profits pendre form part of immovable property as benefits arising out of land and are
transferred along with immovable property. Though the appeal was dismissed due to it being
a matter of contractual dispute and not writ petition. Profit emerging out of land is movable
property.

2. Duncan Industries Ltd v. State of Uttar Pradesh

Issue: Whether machinery that is embedded in the earth is movable property or immovable
property?

Rule of Law: the court takes into consideration the intention of the parties when it decides
to embed the machinery whether such embedment was intended to be temporary or
permanent.

Held: A property is movable, or immovable based on the intention whether the person wanted
to have the equipment permanent or temporarily.

3. Shantabai v. State of Bombay

Issues:
Is a tree an immovable property and what is the distinction between the tree and standing
timber ?

What is the distinction between a lease document and profit a prendre?

Rule of Law:

 Trees are immovable property.

 In case of a lease, one who enjoys the property has no right’ to take it away. In a
property-a-Prendre, one has a license to enter on the land, not for the purpose of
enjoying it but for removing something.
 Deed for transferring the right in the case required registration.

 Held:
  The Supreme court held that trees are immovable property because they are
attached or rooted to the earth, except standing timber, crops, and grass.
 And trees which are meant to be converted into timber be looked upon as timber for
all practical purposes even though it is still standing
 The document deed required registration under the transfer of property Act, since it
was unregistered it did not pass any title or interest, the petitioner had no
fundamental right.
 The petition was dismissed with no costs.

4. Suresh Chand v. Kundan

 Issue:

Whether during the sale of a land, the saplings standing on the land are also transferred
along with land?

What happens in the case of the absence of any expressed or implied intention in the
agreement?

Rule of Law: Section 3 and Section 8 of TPA.

Held:

 The Supreme Court held that interest in the property also includes anything
attached to the land including trees standing on the land. Where a vendor sells his
right, title, and interest in the land unless expressly or impliedly provided in the
agreement, the sale of the land would also include trees standing thereon.
 But where trees are sold for being cut and removed it does not mean that the land is
also transferred along with the trees. It is open to the vendor while transferring the
land to exclude the trees from sale if he wants to appropriate it by cutting and
removing them
 Since in the present case the agreement was silent about the saplings were not
being sold along with the land, the appellant will take land along with the saplings
standing on the land which subsequently grown into trees.

5. Triveni Engineering & Industries v. Comm. of Central Excise

 Issues:
 Whether during the sale of a land, the saplings standing on the land are also
transferred along with land?
 What happens in the case of the absence of any expressed or implied intention in the
agreement?

Held:
The Supreme Court held that interest in the property also includes anything attached to the
land including trees standing on the land. Where a vendor sells his right, title, and interest
in the land unless expressly or impliedly provided in the agreement, the sale of the land
would also include trees standing thereon.
  Since in the present case the agreement was silent about the saplings were not
being sold along with the land, the appellant will take land along with the saplings
standing on the land which subsequently grown into trees.

Week 3: Registration and Stamp Duty

1. Suraj Lamps Pvt Ltd v. State of Haryana

Held: 1. The Supreme Court ruled in the case of Suraj Lamp & Industries Pvt. Ltd. Vs State
of Haryana that sale transactions carried in the name of general power of attorney will have
no legal sanctity and immovable property can be sold or transferred only through registered
deeds. “Transactions of the nature of `GPA sales or `SA/ GPA/ WILL transfers’ do not
convey title and do not amount to transfer nor can they be recognised or valid
modes of transfer of immovable property.

*The courts will not treat such transactions as completed or concluded transfers or as
conveyances as they neither convey title nor create any interest in an immovable property.

*We, therefore, reiterate that immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance, Justice Raveendran said.

2. GuruCharan Singh v. Angrez Kaur (2020) 10 SCC 250

Legal Issue: whether the decree dated 1995 was compulsorily registrable under the
Registration Act 1908 in view of the section 17(1) of the said Act (Registration Act, 1908)

Held:
 Accordingly, the apex court reversed the decision of the High Court and held that the
decree passed in 1995 was valid and binding. The court held that the said decree was not
compulsorily registrable. 
 It further held that the decree was by no means fraud or coerced. The daughters did not
point it out when Bhajan Singh was alive. Therefore, the decree passed by the trial Court
is not coerced.
Principles of Law:

 Immoveable property acquired from decree will not require registration if

a)   Party to Suit have Pre-existing rights in Suit Property.

b)  Decree passed by the Court is either not as a consequence of compromise decree or
the  decree is in respect of suit property only.
 3. V.N Sarin v. Ajit Kumar Poplai AIR 1966 SC 432

Legal Issue: Whether the partition of co-parcenary property among the coparceners under
Hindu Law is a transfer within the meaning of S. 53 of the Transfer of Property Act, 1882,
and therefore, can it said to be “an acquisition by transfer” within the meaning of s. 14(6) of
the Act?

Rule: The partition of coparcenary property does not amount to transfer. The joint family
members (all the coparceners) were enjoying the property rights and had an interest in the
property beforehand. The division of coparcenary property is the division of rights among
the coparceners, collectively into individual or specific rights .

Held:
1) The Section 14 (6) did not create a bar against the institution of the application by
respondent No. 1 for evicting the appellant as partition of co-parcenary property
among the coparceners under Hindu Law is not a transfer within the meaning of S. 53
of the Transfer of Property Act, 1882.

2) That the partition of coparcenary property does not amount to transfer. The joint
family members (all the coparceners) were enjoying the property rights and had an
interest in the property beforehand. The division of coparcenary property is the
division of rights among the coparceners, collectively into individual or specific
rights.

General Rules of Transfer

Case #1

Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-Op

Societies (2005) 5 SCC 632

 Issue: Whether the byelaw restricting membership to Parsis was valid?

Rule of Law:

 The Co-operative Societies Act provides that no society shall, without sufficient
cause, refuse admission to and person duly qualified under the provisions of the Act
and its byelaws.
 In the case of a housing society, there should be a bond of common habits and
common usage among the members. This bond is found most in community or caste
groups in India.
 The concept of public policy in the present context must be looked for under the Act
and, in the absence of any such provision, it cannot be held that the byelaws are
opposed to public policy.

Held:
  The Supreme Court held that so long as an approved byelaw stands, it could not be
held that the formation of that society is against public policy and the society
cannot be directed to amend basic bye laws relating to membership.
 It was further held that the Constitutional goal of doing away with religious and
sex-based discrimination must be achieved by legislative intervention and not by a
court coining a theory that whatever is not consistent with the theory of the
Constitution can be held to be against public policy.
 The court recognised that the son became a member only on the death of his father
and upon doing so, he subscribed to the bye laws. He accepted all the restrictions
placed on a member.
 Ultimately, the court allowed the appeal, set aside all previous judgements and
upheld the right of the Society to insist that property under the Society must be
dealt with in accordance to the bye laws.

Case # 2 Tulk v. Moxhay (1848) 2 Ch. 774

 Issue: Whether a covenant limiting the use of property would “run with the land”
and bind all future owners of the property?

 Rule of Law: A covenant amounts to a contract between a vendor and vendee, it is

enforceable against a purchaser for value with either constructive or actual notice.

 Held: The High Court held in favour of Tulk and passed an injunction preventing
Moxhay from building on the land.
 The Court ruled that at the time the covenant was made, it was intended to run with
the land and subsequent purchasers had been informed of its existence.

Case #3 K. Muniswamy v. K. Venkataswamy AIR 2001 Kant. 246

 Issue: Whether the stipulation laid down by the parents creates an absolute estate or
a limited estate.

Rule of Law: There exists an absolute estate in favour of the parents as they should enjoy
the property in any way they like till their death.

Held:
The Supreme Court, with reference to precedent, held that Section 10 of the Transfer of
Property Act would not apply in the present case as it is one of partition of property and
family settlement.

With respect to the second issue, the Supreme Court held that the stipulations allowed the
parents to allow the property in any way during their life and on their death, full or any
part of the property available must be left for intestate succession.
 Sale, Exchange and Gift

4. Vidyadhar v. Manikrao AIR 1999 SC 1441

 Issue: Is the plaintiff entitled to claim retransfer of the suit field from Defendant 1?

Principle of Law
price paid or promised or part paid and part promised" indicates that actual payment of the
whole of the price at the time of the execution of the Sale Deed is not a sine qua non for
completion of the sale. Even if the whole of the price is not paid, but the document is
executed, and thereafter registered, the sale would be complete, and the title would pass on to
the transferee under the transaction. The non-payment of a part of the sale price would not
affect the validity of the sale. Once the title in the property has already passed, even if the
balance sale consideration is not paid, the sale could not be invalidated on this ground. In
order to constitute a "sale", the parties must intend to transfer the ownership of the property,
on the agreement to pay the price either in praesenti, or in future. The intention is to be
gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on
record.

5. Subhas Chandra v. Ganga Prasad AIR 1967 SC 878

Issue: Whether the gift deed was induced by undue influence?

Held: The Supreme Court allowed the appeal and held that there was no
presumption of undue influence being used in this case. In case it was to be proved,
the burden lies on the person who is in a position of power to influence the executor.
The deed was executed out of love and affection and the authenticity of the deed
cannot be challenged as being influenced.

In case it was to be proved, the burden lies on the person who is in a position of
power to influence the executor. The deed was executed out of love and affection
and the authenticity of the deed cannot be challenged as being influenced

Principle: Deed was executed out of love and affection not subject to undue influence.
Transfer of Property Under Litigation, Fraudulent Tranfer

Case #1 Abdul Shukoor v. Arji Papa Rao AIR 1963 SC 1150

 Issues:
 Whether the suit tannery sale deed was executed in fraud of creditors and thus, not
binding.

 Whether the sale deed in favour of the plaintiff is a genuine transaction.

 Whether a suit under Section 53 of the Transfer of Property Act was to be filed by a
representative of all the creditors and not just a single creditor.
 Whether if the debtor had other property that would serve the interests of the
creditors, would Section 53 still apply.

Rule of Law:

 In the present case, the court considered multiple factors to come to the conclusion
that the transfer of the suit tannery was done with an intention to delay/defeat
thecreditors.
 Knowledge and concurrence on behalf of the plaintiff was enough to prove that the
sale of the suit tannery was a scheme by Lala to put the property out of the reach of
creditors.

Held:

 The Supreme Court held that the transfer of the suit tannery fell under Section
53(1) of the Transfer of Property Act and thus, voidable at the option of the 1st
defendant who was a creditor.
 It was established that when a transferee purchases a property in good faith, the
creditor cannot make such a transfer void and the burden of proof lies on the
creditor to show that the purchase was done in bad faith.

Case #2 Guruswamy Nadar v. P. Lakshmi Ammal (Dead)

 Issue: What issue would lis pendens (pending legal action) have on the subsequent
sale of the property to the second buyer?

 Rule of Law: The rights of a subsequent buyer are not to be annulled but simply be
made subservient to the rights of parties already in litigation.

Held: The Supreme Court held that though the second purchaser bought the land in good
faith, the principle of lis pendens would apply and as the second sale took place after the
filing of the suit, it would not have an overturning effect on the first sale

Case #3 Jayaram Mudaliar v. Ayyaswamy

 Issue: Whether public auctions are an exemption to Section 52 of the Transfer of

Property Act?

 Rule of Law:
 Section 52 applies not only to actual transfers or rights but to other dealings by any
party to the suit or proceeding so as to affect the right of another party.

 Where it is an outside agency which proceeds against the subject matter of the
litigation without provocation by the litigating party, the transaction will be
unaffected by Section 52 of the Transfer of Properties Act.

Held:

The Supreme Court held the appeal dismissed on the grounds of lis pendens. It also
recognised the purpose of the doctrine as stopping parties to pending litigation from
acquiring any rights in respect of the immovable property subject to the litigation.

Case #4 Madhukar Jagtap v. Smt Pramilabai Parendakar

Issue: Whether the transfer made during the pendency of suit to third parties is illegal ?

Rule of Law: The effect of doctrine of lis pendens is not to annul all the transfers effected by
the parties to a suit but only to render them subservient to the rights of the parties under the
decree or order which may be made in that suit.

Held: Referring to Section 52 of Transfer of Property Act, the bench observed that any
transaction on being hit by Section 52 ibid., is illegal or void ab initio, the subsequent
purchasers sought to come on record as defendants and in that context, this Court referred
to Section 52 of the T.P. Act and pointed out that alienation in their favour would be hit by
the doctrine of lis pendens.

Eminent Domain

Case #1 K.T Plantation v. State of Karnataka

Issues:

1. Is the Roerich acquisition protected by Article 31C ?

 2. What is the scope of Article 300-A ?
3. Whether the act is in violation of the true interpretation of Article 300-
A of the Constitution, in so far no specific compensation for acquisition of 468 acres of
Linaloe plantation?
1.

Principles of Law:
 Lease and Licence

Case #1 Sivayogeswara Cotton Pres v. M. Panchakasharappa AIR 1962 SC 413

Issue: Whether or not the lease deed evidences a perpetual grant to the lessee on the terms
and conditions contained in the lease deed?

Principle of Law: It is always open to a lessee of whatever description to surrender his

leasehold interest to the lessor, by mutual consent. The surrender was to be in express terms
agreed to by the parties, at any time after the lapse of the initial period of twenty years.
Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the
permanency of the tenure, if the parties otherwise agreed to create such a tenure.

Case #2 Dhanpal Chettiar v. Yesodai Ammal AIR 1979 SC 1745

 Issue: Whether the plaintiff’s suit for ejectment was not maintainable without a
notice under Section 106 of the Transfer of Property Act, 1882?

 Principle of Law: The lease was a lease for a definite term and, therefore, expired
by efflux of time by reason of Section 111(a) of the Transfer of Property Act. That
being so, the service of a notice under Section 106 of the Transfer of Property Act
was not necessary.

Case # 3 Shanti Devi v. Amal Kumar AIR 1981 SC 1550

 Issue: Whether the plaintiff’s suit for ejectment was not maintainable without a
notice under Section 106 of the Transfer of Property Act, 1882?

Principle of Law: The lease was a lease for a definite term and, therefore, expired by efflux
of time by reason of Section 111(a) of the Transfer of Property Act. That being so, the
service of a notice under Section 106 of the Transfer of Property Act was not necessary.

Case #4 Laxmidas Bapudas v. Rudravva

 Issue: Whether or not, a petition under Section 21 (1)(h) of the Karnataka Rent
Control Act, for eviction of a tenant under a contractual fixed term lease, would be
maintainable on the ground of reasonable and bona fide requirement of the landlord.
Principle of Law: There is nothing to indicate nor it has been held in any case that in view of
Section 21 of the Karnataka Rent Act a contract of fixed term tenancy stands obliterated in
totality. Nothing has been indicated by reasons of which it can be concluded that a contract of
tenancy loses significance on coming into force of the Karnataka Rent Act.

Case #5 Associated Hotels of India Ltd v. R.N Kapoor AIR 1959 SC

Issue: Whether the document executed by the parties is a Lease or a License?

Principle of Law:

1) To ascertain whether a document creates a licence or lease, the substance of the

document must be preferred to the form
2)  The real test is the intention of the parties – whether they intended to create a lease
or a licence;
3) If the document creates an interest in the property, it is a lease; but, if it only permits
another to make use of the property, of which the legal possession continues with
the owner, it is a licence;
4) If under the document a party gets exclusive possession of the property, prima facie,
he is considered to be a tenant; but circumstances may be established which
negative the intention to create a lease.

Case #6 Bharat Petroleum Corporation Ltd v. Chembur Service Station

 Issue: What is the nature of a licence that is granted to the respondent by the
appellant under the DPSL agreement ?

Principle of Law:

 Licences can be of different kinds. Some licences with reference to use of

immovable property may be very wide, virtually bordering upon leases. Some
licences can be very-very narrow, giving a mere right enabling a person to visit a
premises. All licences cannot be treated on the same footing.
 Mortgage and Charge

Case #1 Vidhyadhar v. Manikrao AIR 1999 SC 1441

Principle of Law: Non-payment of a portion of the sale price had no bearing on the sale
deed’s validity. Even if the balance of the sale consideration is not paid, the transaction
cannot be voided on this basis once the title to the property has been transferred from seller to
buyer. To be considered as “sale,” the parties must intend to transfer ownership of the
property in exchange for payment of the price now or in the future. The recitals of the sale
deed, the conduct of the parties, and the evidence on record all point to this fact.

Case #2 Chaganlal v. Anantaraman AIR 1961 Mad 415

 Issue: Whether a mortgagee is entitled to treat interest due under a mortgage as a

charge upon the mortgaged property in the absence of any contract to the contrary?

Principle of Law: The Madras High Court held that the construction placed on the material
provisions of the mortgage deed by the learned District Judge was right and the learned
Judge was wrong in holding that there was a contract contrary to the general rule that
interest payable under a mortgage deed would also be charged to the mortgaged property
and would be included in the mortgage money on payment of which alone the mortgagor
would be entitled to obtain redemption of the mortgage

Case #3 Ganga Dhar v. Shankar Lal AIR 1958 SC 770

 Issue: Whether a term period in a mortgage instrument, so far as it precludes the

right to redeem from accumulating for a time, a clog on the equity of redemption?

Principle of law:
1) The Supreme Court held that the term provided for a period of eighty-five years
was not a clog on the equity of redemption, and the mere length of the period could
not by itself lead to an inference that the bargain was in any way oppressive or
unreasonable.
2) that the term that on the failure of the mortgagor to redeem within the specified
period of six months, he would lose his right to do so and the mortgage deed was to
be deemed to be a deed of sale in favour of the mortgagee, was clearly a clog on the
equity of redemption and as such invalid but its invalidity could not in any way
affect the validity of the other term as to the period of the mortgage, that stood
clearly apart.
Case #4 Pomal Kanji Govindji v. Vrajlal Karsandas Purohit AIR 1989 SC 436

 Issue:
1) Whether the terms and conditions in the mortgage deed dated 20.4.1943
amount to clog on the equity of redemption?
2) Whether the mortgagees are entitled to get interest on 10,000 koris?

Held: There was clog on equity of redemption and the mortgagor should be freed from that
bondage that the tenants had no right to he in possession and were not entitled to the
protection of the Bombay Rent Control Act after the redemption of the mortgage .