Transfer of Property Act, 1882 Test 2 — Questions & Solutions
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A mortgages first to B, then to C, and lastly to D. If A himself redeems B's mortgage, what is the legal effect?
aA is not subrogated to B; the interest acquired enures to the benefit of C and D, enlarging their security
bA is subrogated to B's mortgage and may enforce it against C and D
cC and D's mortgages are extinguished
dA may set up B's charge against C only, not D
Answer: A
A mortgagor who pays a debt for which he is personally liable is not subrogated to that mortgage; redemption by the mortgagor enures for the benefit of subsequent encumbrancers C and D, enlarging their security (contrast S92 subrogation where a third party redeems).
Q2Mortgages (S58–104)
Where there are a first and a second mortgagee and the second mortgagee pays off the first, the second mortgagee—
aAcquires only a personal right to be reimbursed by the mortgagor
bHas all the rights the first mortgagee had against the mortgagor (subrogation)
cLoses his own mortgage by merger
dRanks behind any subsequent encumbrancer
Answer: B
Under the principle of subrogation reflected in S74, the second mortgagee who pays off the first mortgagee is substituted to all the rights the first mortgagee had against the mortgagor.
Q3Mortgages (S58–104)
Which statement correctly reflects the writing/registration requirements for mortgages under the TP Act?
aEvery mortgage, including by deposit of title-deeds, requires a registered instrument
bNo mortgage requires writing if possession is delivered
cA simple mortgage requires writing, and all other mortgages (except by deposit of title-deeds) require a registered instrument where the principal sum secured is Rs 100 or more
dOnly English mortgages require writing
Answer: C
The Act requires writing for a simple mortgage, and a registered instrument for all other mortgages (except a mortgage by deposit of title-deeds) where the principal sum secured is Rs 100 or upwards (S59).
Q4Mortgages (S58–104)
Regarding the right to possession of the mortgaged property, which is correct?
aA simple mortgagee is entitled to immediate possession
bWhere there are two usufructuary mortgages, the puisne mortgagee is entitled to possession
cA usufructuary mortgagee is never entitled to possession
dA simple mortgagee has no right to possession, and a lease granted by the mortgagor pending the simple mortgagee's suit is not hit by lis pendens under S52
Answer: D
A simple mortgagee has no right to possession; hence a lease granted by the mortgagor pending the simple mortgagee's suit is not hit by S52 (Anaji Thamaji Patil v RB Patil). Where two usufructuary mortgages exist, it is the prior mortgagee who is entitled to possession.
Q5Mortgages (S58–104)
An oral non-possessory charge is created over property, and the owner later executes a mortgage to a mortgagee who has no notice of the earlier charge. As to priority—
aThe oral charge has no priority over the subsequent mortgage taken without notice (effect of S100)
bThe oral charge prevails over the later mortgage
cBoth rank pari passu
dThe later mortgage is void
Answer: A
A charge is not a transfer of an interest in property; an oral non-possessory charge has no priority over a subsequent mortgage where the mortgagee has no notice of it, which is the effect of S100 of the TP Act.
Q6Mortgages (S58–104)
A executes a mortgage of his immovable property in favour of B. As to the nature of what B (the mortgagee) acquires, which statement is correct?
aB acquires a mere personal right against A which is movable property
bB acquires a mortgagee's interest in specific immovable property, which itself is immovable property
cB acquires absolute ownership of the property subject to a re-conveyance
dB acquires an actionable claim transferable like any ordinary debt
Answer: B
A mortgage is a transfer of an interest in specific immovable property, and the mortgagee's interest is itself immovable property and not movable property (Prahlad Dalsubbhai v Maganlal Muljibhai Tewar, AIR 1952 Bom 454; s 58).
Q7Mortgages (S58–104)
Since a valid mortgage requires both parties to be competent to contract, which of the following is correct regarding a minor?
aA minor may be a mortgagor but not a mortgagee
bA minor may be a mortgagee but not a mortgagor
cA minor can be neither a mortgagor nor a mortgagee
dA minor can be both, provided the deed is registered
Answer: C
As the conditions of validity of a mortgage require both mortgagor and mortgagee to be competent to contract, a minor, being incompetent to contract, can be neither a mortgagor nor a mortgagee (Mathai Mathai v Joseph Mary, (2015) 5 SCC 622).
Q8Mortgages (S58–104)
A mortgage debt under a written mortgage of immovable property can be validly transferred only by which mode?
aBy mere delivery, being movable property
bBy an unregistered writing, being an actionable claim
cBy endorsement alone, like a negotiable instrument
dBy a registered instrument, the mortgage being immovable property
Answer: D
A mortgage being immovable property can only be transferred by a registered instrument (Perumal v Perumal, (1921) ILR 44 Mad 196).
Q9Mortgages (S58–104)
After mortgage debts were excluded from the definition of 'actionable claim' by Act 2 of 1900, what is the position regarding section 8 (which passes securities along with a transferred debt)?
aSection 8 no longer applies to mortgage debts, as 'debt' there is confined to debts within the general definition of actionable claims
bSection 8 continues to carry the mortgage security with an assignment of the mortgage debt
cSection 8 now requires only an oral assignment of the mortgage debt
dSection 8 applies only where the mortgage is by deposit of title-deeds
Answer: A
Since mortgage debts were excluded from actionable claims by Act 2 of 1900, section 8 no longer applies to them, the word 'debt' being confined to debts falling within the general definition of actionable claims (Arunachellam v Subramania, (1907) ILR 30 Mad 235).
Q10Mortgages (S58–104)
A mortgages an occupancy holding (a holding made inalienable by the Agra Tenancy Act) to B. Which statement is correct?
aThe mortgage is valid but unenforceable against the landlord
bThe mortgage is void, and the mortgagee cannot even sue for a money decree on the personal covenant
cThe mortgage is void, but the mortgagee may recover the money as a simple debt
dThe mortgage is valid if it is registered
Answer: B
A mortgage of an occupancy holding is void under the Agra Tenancy Act, and the mortgagee is not entitled even to sue for a money decree on the basis of the personal covenant in the mortgage (Har Prasad v Sheo Gobind, (1922) ILR 44 All 486).
Q11General principles of transfer (S5–37)
A transfers a field to B for life, and if she does not desert her husband, to C. What is the position of B's life interest, the ulterior gift to C being void as opposed to public policy?
aB's life interest also fails because the whole transaction is tainted
bThe field reverts to A immediately
cB is entitled to the farm for her life as if no condition had been inserted
dC takes the field absolutely despite the immoral condition
Answer: C
Section 30 provides that the invalidity of an ulterior disposition does not affect a valid prior disposition; B keeps her life interest as if no condition had been inserted (illustration to Section 30).
Q12General principles of transfer (S5–37)
A transfers Rs 500 to B, to be paid on B attaining majority or marrying, with a proviso that if B marries without C's consent the money shall go to D. B marries at 17 without C's consent. What is the effect?
aThe condition subsequent is treated as substantially complied with, so B keeps the money
bThe money reverts to A
cD takes only if B dies a minor
dThe transfer to D takes effect, since a condition subsequent must be strictly fulfilled
Answer: D
Section 29 requires that the condition for an ulterior disposition be strictly fulfilled; B having married without C's consent, the divesting condition operates and the gift over to D takes effect (illustration to Section 29).
Q13General principles of transfer (S5–37)
The farm of Sultanpur belongs to C and is worth Rs 800. A, by an instrument of gift, professes to transfer that farm to B, and by the same instrument gives Rs 1,000 to C. If C elects to retain his own farm, what follows under the doctrine of election?
aC forfeits the gift of Rs 1,000
bC may keep both the farm and the Rs 1,000
cC must pay B Rs 800 out of the Rs 1,000 and keep the rest
dC must hand over the farm to B but keeps the Rs 1,000
Answer: A
Under Section 35, a person who takes a benefit under an instrument that also disposes of his own property must elect; choosing to retain his property, C must relinquish the benefit and forfeits the Rs 1,000 (illustration to Section 35).
Q14General principles of transfer (S5–37)
A by an instrument of gift purports to transfer C's farm (worth Rs 800) to B, and by the same instrument gives Rs 1,000 to C. A dies before C makes his election, and C then elects to retain his farm. What is C's representative liability arising from A's estate?
aC keeps the whole Rs 1,000 with no deduction
bA's representative must, out of the Rs 1,000, pay Rs 800 to the disappointed transferee B
cThe entire Rs 1,000 reverts to A's representative
dC forfeits the Rs 1,000 entirely with nothing payable to B
Answer: B
Under Section 35, where the transfer is gratuitous and the transferor dies before election, the elector's retained property is subject to a charge to make good to the disappointed transferee the value of the property; A's representative pays Rs 800 to B out of the Rs 1,000 (second illustration to Section 35).
Q15General principles of transfer (S5–37)
A testator bequeaths to a coparcener, by will, certain joint family property to which that coparcener would in any event be entitled. Is the coparcener put to his election if the will also disposes of his own separate property in favour of another?
aYes, because he takes something under the will
bYes, but only if he accepts the bequest expressly
cNo, because no benefit in the real sense is conferred on him (Valliammai v Nagappa)
dNo, because election never applies to wills
Answer: C
The doctrine of election under Section 35 applies only if a real benefit is conferred; where a coparcener is bequeathed property he was already entitled to, he derives no benefit and is not put to election (Valliammai v Nagappa).
Q16General principles of transfer (S5–37)
Where, on a transfer, an interest is created subject to a condition that the transferee perform a certain act, but no time is fixed for performance, when is the condition broken under Section 33?
aImmediately, if the act is not done within a reasonable time
bOnly on the death of the transferee without having performed the act
cWhen the transferor demands performance and it is refused
dWhen the transferee renders performance of the act impossible, permanently or for an indefinite period
Answer: D
Section 33 provides that where no time is specified, the condition is broken only when the transferee renders performance of the act impossible, permanently or for an indefinite period.
Q17General principles of transfer (S5–37)
A, the eldest brother in possession of the family property of his missing brother who is believed dead, agrees to sell that property. The buyer later resists, arguing the agreement transfers only a spes successionis barred by Section 6(a). Which is the correct position?
aThe agreement is valid, as it transfers the property itself and not a mere chance to succeed
bThe agreement is void, being a transfer of the bare chance of an heir-apparent
cThe agreement is voidable at the option of the true heir on his return
dThe agreement is valid only if reduced to a registered instrument with the brother's consent
Answer: A
Where the transfer is of the property itself by one in possession (believing the absent owner dead), and not of an heir-apparent's expectancy, it is not hit by Section 6(a) (Samir Kumar v Nirmal Chandra).
Q18General principles of transfer (S5–37)
A Hindu reversioner, having only a chance of succeeding, represents to a purchaser that he is the absolute owner and sells the property; later he actually inherits it. The purchaser had no knowledge of the true facts. What is the result?
aThe purchaser may sue only for damages, having acquired a mere personal right
bThe doctrine of feeding the grant by estoppel (Section 43) operates and the transfer fastens on the after-acquired interest
cThe transfer is void as a transfer of spes successionis and confers nothing on the purchaser
dThe reversioner may avoid the transfer because Section 6(a) overrides Section 43
Answer: B
Jumma Masjid v Kadimaniandra Devaiah held that Section 43 (feeding the estoppel) applies where a reversioner fraudulently represents absolute title and a transferee, ignorant of the true facts, acts on it; Section 6(a) does not bar this benefit to the innocent transferee.
Q19General principles of transfer (S5–37)
Which of the following has NOT been recognised as a 'mere right to sue' barred from transfer under Section 6(e) of the Transfer of Property Act?
aA bare right to recover damages for breach of contract
bA right to sue for damages for defamation assigned to another person
cA right to recover damages or compensation assigned together with the property to which it relates
dA bare right of action for damages for tort
Answer: C
Where a property is transferred along with the right to recover damages/compensation in respect of that property, the assignment is valid and not hit by Section 6(e) (Murlidhar Agarwalla v Rupendra Methere); it is only a bare/naked right of action that cannot be assigned.
A transfers property to B in trust for C, directing B to give possession to C when C attains the age of 25. At what age is C entitled to possession?
aAt the age of 25, as directed
bNever, because the interest is contingent on attaining 25
cOnly after B, the trustee, consents at any time after C turns 25
dAt the age of 18, the direction postponing enjoyment being void for repugnancy after majority
Answer: D
C has a vested interest (enjoyment merely postponed); a condition postponing enjoyment beyond majority is void for repugnancy, so C is entitled to possession at 18.
Under section 21, a gift 'to A on the marriage of B' creates what kind of interest in A, and when does it change?
aA contingent interest, which becomes vested if and when B marries
bA vested interest from the outset, since the gift is unconditional
cA contingent interest, which becomes vested only on B's death
dNo interest at all until A himself marries
Answer: A
Marriage is an uncertain event, so the interest is contingent under section 21; it becomes vested if and when B marries (contrast a gift 'on the death of B', which is vested because death is certain).
Where on a transfer an interest is created in favour of such members only of a class as shall attain a particular age (e.g. children of A who attain 18), what is the position of a child who has not yet attained that age, under section 22?
aThe interest vests in him immediately, enjoyment alone being postponed
bThe interest does not vest in any member who has not attained that age
cThe interest vests because of the exception relating to maintenance income
dHe acquires a vested interest the moment any one child of A attains 18
Answer: B
Section 22 deals with a gift to a contingent class: no member's interest vests until he attains the specified age, and the exception to section 21 (income/maintenance) does not save it.
There is a gift to A for life, and then to B in case B is called to the Bar, no time being specified for the event. B is called to the Bar two years after A's death. Under section 23, what is the result?
aThe gift to B takes effect when B is later called to the Bar
bThe gift to B vests retrospectively from A's death
cThe gift to B fails, since the event did not happen before or at the same time as the prior interest ceased
dThe estate remains in suspense until B is called to the Bar
Answer: C
Under section 23, where no time is fixed, a subsequent contingent interest fails unless the event happens before, or at the same time as, the precedent interest ceases; B was called to the Bar only after A's death, so the gift fails.
A makes a gift of his field to B with a proviso that if B does not within a year set fire to C's haystack, the gift shall be void. What is the legal effect?
aThe gift fails entirely because the condition is unlawful
bB must perform the act to retain the gift
cThe field reverts to A after one year
dThe gift is good and is not affected, the void condition (subsequent) being disregarded
Answer: D
This is a void condition subsequent. Per the note to section 25 (and sections 31-32), a void condition subsequent fails but the interest already created is not affected, so B's gift is good; contrast a void condition precedent, which makes the transfer itself fail.
A transfers Rs 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies, and B then marries with the consent of C and D. Under section 26, has the condition been fulfilled?
aYes, because the condition precedent is deemed fulfilled by substantial compliance
bNo, because all three persons must consent for the gift to take effect
cNo, unless B obtains the consent of E's legal representative
dYes, but only if B had married before E died
Answer: A
Section 26 provides that a condition precedent is deemed fulfilled if substantially complied with; consent of the surviving persons (C and D) suffices after E's death (illustration (a); Dawson v Oliver-Massey).
The farm of Sultanpur belongs to C and is worth Rs 800. A, by an instrument of gift, professes to transfer it to B and by the same instrument gives Rs 1,000 to C. C elects to retain his farm. What is the consequence under the doctrine of election (section 35)?
aC keeps both the farm and the Rs 1,000
bC forfeits the gift of Rs 1,000
cC keeps the farm and B's gift is simply void
dC must hand over the farm to B and keep the Rs 1,000
Answer: B
Under section 35, a person who takes a benefit under an instrument must bear its burden; by electing to keep his own farm against the transfer to B, C must relinquish (forfeits) the Rs 1,000 conferred on him.
A by gift transfers property to B in trust for himself and his intended wife successively for their lives, and after the death of the survivor, to the eldest son of the intended marriage for life, and after his death to A's second son absolutely. What is the effect of the interest created in favour of the eldest son?
aIt is valid because it is preceded by a prior life interest
bIt is valid as a contingent interest that vests on his birth
cIt is void because the interest given to the eldest son (an unborn person) is only a life interest and does not extend to the whole remaining interest of the transferor
dIt is void only because the transfer was made by way of trust
Answer: C
Under section 13 TPA (and its illustration), an interest for an unborn person must be the whole remainder; a mere life interest to the unborn eldest son fails, and the subsequent gift to A's second son also fails under section 16.
Q28Sale of immovable property (S54–57)
Where the whole of the property covered by the title deeds is sold to different buyers, Section 55(3) provides that the title deeds are to be delivered to:
aThe buyer who purchased first in time
bEach buyer equally in rotation
cThe seller, who retains them permanently
dThe buyer of the lot of greatest value
Answer: D
Under the proviso to Section 55(3), where the whole property is sold to different buyers, the buyer of the lot of greatest value is entitled to the documents (subject to producing them on reasonable request); if the seller retains part, he keeps them.
Q29Sale of immovable property (S54–57)
Under Section 55(2), the implied covenant by a seller selling in a fiduciary character is that:
aHe has done no act whereby the property is encumbered or whereby he is hindered from transferring it
bThe interest professed to be transferred subsists and he has power to transfer it
cThe property is free from all encumbrances whatsoever
dHe will indemnify the buyer for any defect in title for all time
Answer: A
The general covenant in Section 55(2) is that the interest subsists and the seller has power to transfer it, but the proviso limits a seller in a fiduciary character to a covenant only that he has done no act to encumber the property or hinder its transfer.
Q30Sale of immovable property (S54–57)
After the 1929 amendment of Section 55(4)(b), the unpaid seller's statutory charge for unpaid purchase-money is enforceable against:
aThe buyer alone, and never any transferee from the buyer
bThe buyer, and any transferee without consideration or any transferee with notice of the non-payment
cAny transferee from the buyer, including a bona fide transferee for value without notice
dOnly a subsequent mortgagee of the buyer
Answer: B
The 1929 amendment added the words 'any transferee without consideration or any transferee with notice of the non-payment', so the unpaid-seller's charge binds the buyer and such transferees, but not a bona fide purchaser for value without notice.
Q31Sale of immovable property (S54–57)
Under Section 55(5)(b), where property is sold free from encumbrances, the buyer is entitled to:
aRefuse to pay any price until the seller personally clears the encumbrances
bSet off the value of the encumbrance against future rents
cRetain out of the purchase-money the amount of any encumbrance existing at the date of sale and pay it to the persons entitled
dRescind the sale automatically
Answer: C
The proviso to Section 55(5)(b) permits the buyer, where property is sold free from encumbrances, to retain from the price the amount of any existing encumbrance and pay it to the persons entitled thereto.
Q32Sale of immovable property (S54–57)
Properties X, Y and Z are subject to one mortgage. The mortgagor then sells X to A free from encumbrances. Under Section 56 (marshalling by a subsequent purchaser), A is entitled to:
aHave the mortgage realised rateably out of X, Y and Z
bCompel the mortgagee to release X without payment of any part of the debt
cNothing, since marshalling is available only to a subsequent mortgagee
dRequire the mortgagee to satisfy the mortgage as far as possible out of Y and Z, the properties not sold to him
Answer: D
Section 56 entitles the buyer of one of several mortgaged properties to have the mortgage-debt satisfied so far as possible out of the properties not sold to him (here Y and Z), provided this does not prejudice the mortgagee or others who acquired an interest for consideration.
Q33Sale of immovable property (S54–57)
Which limitation on the right of marshalling under Section 56 is correctly stated?
aIt cannot be exercised so as to prejudice the rights of the mortgagee, persons claiming under him, or any other person who has for consideration acquired an interest in any of the properties
bIt may be exercised even so as to prejudice the mortgagee, since the buyer's right is absolute
cIt is available to a lessee of one of the mortgaged properties
dIt applies fully to purchasers at execution (involuntary) sales as of right
Answer: A
Section 56 expressly subordinates the purchaser's right of marshalling to the rights of the mortgagee, those claiming under him, and others who have acquired an interest for consideration; a lessee cannot claim it (Low & Co v Hazarimull) and it is generally inapplicable to execution sales.
Q34Sale of immovable property (S54–57)
Under Section 57, regarding the additional amount to be paid into court to meet the contingency of further costs, expenses and interest (apart from depreciation of investments), the section provides:
aIt shall not exceed one-fifth of the original amount in any case
bIt shall not exceed one-tenth of the original amount, unless the court for special reasons recorded requires a larger amount
cIt is fixed at one-tenth and can never be exceeded
dThere is no ceiling; the court fixes it entirely at discretion
Answer: B
Section 57 caps the additional amount at one-tenth of the original sum to be paid in, but permits a larger amount for special reasons which the court must record.
Q35Leases (S105–117)
Under Section 108(B), in the absence of a contract or local usage to the contrary, the lessee may remove, at any time during the continuance of the lease, all things he has attached to the earth, provided he:
aObtains the lessor's prior written consent
bPays the lessor half the value of the fixtures
cLeaves the property in the state in which he received it
dRemoves them only after the lease has determined
Answer: C
Section 108(h) entitles the lessee to remove, during the continuance of the lease, all things he has attached to the earth, on condition of leaving the property in the state in which he received it.
Q36Leases (S105–117)
Under Section 108, if during the continuance of the lease a material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purpose let by fire, flood, violence of an army or irresistible force, the lease is, at the option of the:
aLessor, void
bLessor, voidable only after notice to the lessee
cCourt, terminated automatically
dLessee, void
Answer: D
Section 108(e) provides that on such destruction the lease becomes void at the option of the lessee, provided the injury was not caused by the lessee's own wrongful act or default.
Q37Leases (S105–117)
Under Section 108, a lessee who, without the lessor's consent, transfers (sub-lets or assigns) his interest in the leased property:
aMay transfer his interest, but remains liable to the lessor on the covenants of the lease
bCannot do so at all; any transfer is void
cMay transfer only with the lessor's prior registered consent
dIs automatically deemed to have surrendered the lease
Answer: A
Section 108(j) allows the lessee to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest, but the transfer does not relieve the lessee of his liability under the covenants of the lease.
Q38Leases (S105–117)
Unless the lease otherwise provides, under Section 110 the time limited by a lease commences (where the time is expressed to commence from a given day) from:
aThe day on which the lease deed is executed
bThe day next following that given day, excluding the day from which the term is reckoned
cThe day on which possession is actually delivered
dThe first day of the next calendar month
Answer: B
Section 110 provides that where the lease time is expressed to commence from a given day, the day from which the term is reckoned is excluded, so the term begins on the day next following.
Q39Leases (S105–117)
A lessee under forfeiture commits a breach of an express condition. Under Section 111(g), the lease is determined by forfeiture only when the lessor:
aFiles a suit for mesne profits
bStops accepting rent for three months
cGives notice in writing to the lessee of his intention to determine the lease
dObtains a decree of the civil court
Answer: C
Section 111(g) requires that for determination by forfeiture the lessor give notice in writing to the lessee of his intention to determine the lease; without such notice the forfeiture is not effective.
Q40Leases (S105–117)
After a lease has become liable to forfeiture for non-payment of rent, the lessor accepts rent that became due after the forfeiture, with knowledge of the breach. Under Section 112 this amounts to:
aA surrender of the lease
bA merger of interests
cAn implied surrender by operation of law
dA waiver of the forfeiture
Answer: D
Section 112 provides that a forfeiture is waived by acceptance of rent which has become due since the forfeiture, or by distress, or by any other act showing an intention to treat the lease as subsisting, provided the lessor had knowledge of the forfeiture.
Q41Leases (S105–117)
In a suit by a lessor to eject a lessee for non-payment of rent (forfeiture), the lessee tenders or pays into court, at the hearing, the rent in arrear with interest and full costs. Under Section 114, the court:
aMay, if it thinks fit, relieve the lessee against the forfeiture and order him to hold the property as if no forfeiture had occurred
bMust still pass a decree for ejectment
cHas no power to grant relief once a written forfeiture notice was given
dMay grant relief only for agricultural leases
Answer: A
Section 114 gives the court discretion, on payment or tender at the hearing of the arrears, interest and costs, to relieve the lessee against forfeiture for non-payment of rent and to let him hold the property as before.
Q42Exchange & gift (S118–129)
Under Section 120, save as otherwise provided in the Chapter on Exchanges, what is the position of each party to an exchange?
aEach is treated only as a buyer of both things involved
bEach has the rights and liabilities of a seller as to what he gives, and of a buyer as to what he takes
cEach enjoys an automatic charge on the property given for any equality money paid
dEach acquires a statutory right of pre-emption against the other
Answer: B
S120 provides that each party has the rights and liabilities of a seller as to that which he gives and of a buyer as to that which he takes. An exchange involves no price, so there is no charge for unpaid price or for equality money, and pre-emption does not necessarily arise.
Q43Exchange & gift (S118–129)
Which of the following is NOT among the essential elements of a valid gift under Section 122?
aAbsence of consideration and a voluntary transfer
bExisting movable or immovable property as subject-matter
cDelivery of physical possession of the property to the donee in every case
dAcceptance by or on behalf of the donee during the donor's lifetime
Answer: C
S122's essentials are absence of consideration, donor, donee, a voluntary transfer, existing subject-matter, transfer and acceptance. Delivery of possession is not a sine qua non for validity (S Sarojini Amma v Velayudhan Pillai Sreekumar).
Q44Exchange & gift (S118–129)
A donor executes and registers a gift deed, hands over the deed to the donee who accepts it, but dies before the registration formalities are complete. What is the consequence?
aThe gift becomes void, the donor having died
bThe gift fails because acceptance was incomplete at death
cThe legal representatives may freely revoke the gift before registration
dThe gift stands; after delivery of an accepted deed the donor cannot revoke it, and even post-mortem registration is effective
Answer: D
Per Kalyanasundaram v Karuppa, once the deed is delivered and accepted the donor has done all in his power; registration does not suspend the gift and may be completed after death. 'Registered' in S123 does not mean registered in the donor's lifetime.
Q45Exchange & gift (S118–129)
A gift deed is sought to be proved. The deed is registered and the executant has not specifically denied its execution. What is the requirement as to attesting witnesses?
aBy the proviso to S68 of the Evidence Act, no attesting witness need be examined unless execution is specifically denied
bBoth attesting witnesses must always be examined for a gift deed
cAt least one attesting witness must be examined in every case
dA gift deed needs no attestation at all, so the question does not arise
Answer: A
Though S123 requires a gift deed to be attested by at least two witnesses, the proviso to S68 of the Evidence Act dispenses with examining an attesting witness for a registered document unless its execution is specifically denied (Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai).
Q46Exchange & gift (S118–129)
A makes a single gift deed transferring to B both an existing house and crops that A expects to grow on his land in future. What is the legal effect under Section 124?
aThe entire gift is void as it includes future property
bThe gift is valid as to the existing house but void as to the future property
cThe gift is valid in its entirety as it is a single transfer
dThe gift is voidable at the option of the donee
Answer: B
S124 provides that a gift comprising both existing and future property is void as to the latter; the gift of existing property is not invalidated merely because it also professes to include future property (Perumal v Perumal).
Does the doctrine of part performance under Section 53A apply to a gift of immovable property?
aYes, because a gift is a transfer of immovable property
bYes, if the donee is put in possession
cNo, because Section 53A requires a contract to transfer for consideration, and a gift involves no contract
dNo, but only because gifts are exempt from registration
Answer: C
S53A applies only to a 'contract to transfer for consideration'; a gift involves no contract and is gratuitous, so part performance does not apply to gifts (Maung Hila Maung v Maung Po Hai).
Under the doctrine of lis pendens (Section 52), a transfer of the suit property made during the pendency of the suit is:
aVoid ab initio and confers no title whatsoever even between the parties
bWiped out altogether by the final decree
cValid only if the transferee had no notice of the pending suit
dValid and operative between transferor and transferee, but subservient to the rights decided by the decree
Answer: D
S52 does not make the transfer void; it is valid between the parties but subordinated to the rights determined by the decree (Nagubai Ammal v B Shama Rao).
During the pendency of a suit for specific performance, X buys the suit property bona fide, for value and without any notice of the pending litigation. Is X protected against the rule of lis pendens?
aNo, because lis pendens rests on public policy and good faith or absence of notice is irrelevant
bYes, because Section 41 protects a bona fide transferee without notice
cYes, because Section 19(b) of the Specific Relief Act protects him
dYes, provided he paid the full price before the decree
Answer: A
The doctrine of lis pendens rests on public policy/expediency, not on notice; the plea of bona fide purchaser for value without notice is no defence (Faiyaz Husain Khan v Prag Narain; G.T. Girish v Y. Subba Raju).
Which of the following suits would NOT operate as a lis pendens within the meaning of Section 52?
aA suit for partition of immovable property among coparceners
bA simple suit for a money debt where no right to immovable property is in question
cA suit for specific performance of a contract to transfer immovable property
dA suit for pre-emption in respect of specific immovable property
Answer: B
S52 applies only where a right to immovable property is directly and specifically in question; a mere money-debt suit raises no such question, though the transfer made therein may be attacked under S53 as a fraud on creditors.
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