Transfer of Property Act 1882: Section 5, Section 6, Lis Pendens, Six Mortgages, Lease vs Licence and Judiciary Exam Notes

Transfer of Property Act 1882 | TPA Notes | Section 5 | Section 6 Property Cannot Be Transferred | Section 52 Lis Pendens | Six Types of Mortgage | Lease vs Licence | Actionable Claim | Judiciary Exam 2026 | Last Updated July 2026

Transfer of Property Act 1882 — Key Facts at a Glance:     Full name: Transfer of Property Act 1882 (Act No. 4 of 1882)   Enacted: 17 February 1882 | Came into force: 1 July 1882   Applies to: Immovable property primarily; some provisions apply to movable   Does NOT apply to: Muslim waqf, testamentary succession, transfers by operation   of law (court decrees, insolvency, intestate succession)     Key definitions: Section 5 (transfer), Section 6 (what cannot be transferred),   Section 3 (immovable property, notice, attested)     Five modes of transfer: Sale (S.54) | Mortgage (S.58) | Lease (S.105) |   Exchange (S.118) | Gift (S.122) | Actionable Claim (S.130)     Six types of mortgage under Section 58: Simple | Mortgage by Conditional Sale |   Usufructuary | English | Anomalous | Mortgage by Deposit of Title Deeds     Critical doctrines: Section 52 Lis Pendens | Section 53A Part Performance |   Section 41 Transfer by Ostensible Owner | Section 43 Feeding the Grant

The Transfer of Property Act 1882 is one of those statutes that looks straightforward when you read its table of contents — sale, mortgage, lease, exchange, gift — but turns into a precision exercise once the problem questions come. Which mortgage type requires registration? Which does not? When does lis pendens apply and when does it not? Can a person transfer property they do not own and have it become valid later? These are the questions that separate candidates who have read the TPA from candidates who have actually studied it. This article covers the provisions that examiners test most frequently, with the precision they expect.

Section 5 TPA — What Is “Transfer of Property”?

Section 5 defines transfer of property as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons. The phrase “to transfer property” means to perform such an act.

Section 5 — Four Critical Points for Prelims MCQs:     1. “Living person” — Section 5 expressly includes a company, association,      or body of individuals, whether incorporated or not.      → A company CAN be a transferor or transferee under the TPA.     2. Transfer must be by ACT OF PARTIES — not by operation of law.      → A court decree transferring property is NOT a transfer under Section 5.      → Intestate succession (property going to heirs on death) is NOT TPA transfer.      → Insolvency (property vesting in official receiver) is NOT TPA transfer.     3. Transfer can be “in present or in future” — both immediate and future      transfers are covered.     4. A person CAN transfer property to himself — e.g., a trustee transferring      property from one capacity (trustee) to another (personal) is a valid      transfer under TPA.     Exam trap: “Transfer by operation of law” is NOT covered by TPA. If a question   asks whether a court-ordered sale is a transfer under TPA — the answer is NO.

Section 6 TPA — Property That Cannot Be Transferred

Section 6 lists categories of property or interests that cannot be transferred. These are direct Prelims MCQ topics because they are counterintuitive — they are things that exist as rights but cannot be bought, sold, or transferred.

Clause	What Cannot Be Transferred	Practical Example
Section 6(a)	Spes successionis — the chance of an heir apparent succeeding to an estate; the chance of a relation obtaining a legacy under a will.	A says: “I will get my father’s property when he dies — I transfer that future right to you today.” This is invalid. The right has not yet vested.
Section 6(b)	Right of re-entry — a right to resume possession of land for breach of a condition, if the right is not a right to re-enter for the benefit of another.	A lessor’s right to re-enter leased land if the lessee breaches the lease cannot be separately sold or transferred by the lessor.
Section 6(c)	Easement — an easement cannot be transferred apart from the dominant heritage.	The right of way over B’s land (appurtenant to A’s land) cannot be separately sold. It passes only with A’s land.
Section 6(d)	Restricted interests — an interest in property restricted in its enjoyment to the owner personally cannot be transferred.	A right to occupy a house as long as one remains a widow cannot be transferred to another person.
Section 6(dd)	Right to future maintenance — a right to receive future maintenance, in whatever manner arising, secured or determined.	A person’s right to maintenance from their spouse or family cannot be assigned to a third party.
Section 6(e)	Mere right to sue — a mere right to sue cannot be transferred.	A’s right to sue B for defamation cannot be sold to C, who would then sue B. The cause of action is personal to A. Exception: actionable claims under Section 130 CAN be transferred.
Section 6(f)	Public office and salary — a public office cannot be transferred; a salary cannot be transferred before it is due.	A government officer’s post cannot be sold. Salary for future months cannot be mortgaged or assigned.
Section 6(g)	Stipends to military, naval, or civil pensioners and political pensions.	Pension amounts payable to ex-servicemen or civil servants cannot be transferred.
Section 6(h)	Transfer opposed to nature of interest, contrary to law, unlawful object or consideration, person legally disqualified.	A transfer to defraud creditors is void. A transfer to a person disqualified by alienation under Muslim law is void.
Section 6(i)	Interests in property on condition that in case of insolvency or attempted alienation it shall pass to another — this condition cannot restrict transfer.	A condition that “if A becomes insolvent this property passes to B” does not prevent A’s creditors from reaching the property.

Section 52 TPA — Lis Pendens (Doctrine of Pending Litigation)

Lis pendens — from the Latin “pending litigation” — is one of the most tested doctrines in the TPA for judiciary exams. Section 52 provides that during the pendency of a suit or proceeding in which the right to immovable property is directly and specifically in question, the property cannot be transferred or dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made in that suit.

What this means in practice: if A sues B for possession of a piece of land and while the suit is pending B sells that land to C, the sale to C does not bind A. When the court ultimately decrees in A’s favour, C cannot resist delivery of possession on the ground that C purchased bona fide without notice of the suit. C takes the property subject to the result of the suit.

Section 52 Lis Pendens — Five Essential Conditions (All Must Be Present):     1. There must be a SUIT OR PROCEEDING pending before a court of competent      jurisdiction in India.     2. The right to IMMOVABLE PROPERTY must be directly and specifically in question      in that suit. A general money suit is not enough — the property itself must      be the subject of dispute.     3. The transfer must be made by a PARTY TO THE SUIT — not by a stranger.      If a third party (not a party to the suit) sells the property, lis pendens      does not apply.     4. The transferee takes the property subject to the RIGHTS OF OTHER PARTIES      — whether or not the transferee had actual notice of the litigation.      Lis pendens binds even a bona fide purchaser without notice.     5. The suit must not be COLLUSIVE — a suit filed by colluding parties to      defeat a third party’s rights is not protected by Section 52.     Exam trap: Lis pendens applies whether or not the transferee had NOTICE of   the pending suit. This is the key distinction from the general rule of notice   under Section 3. In lis pendens, notice is irrelevant.

Section 53A TPA — Part Performance

Section 53A protects a person who has taken possession of immovable property in part performance of a contract and has done some act in furtherance of the contract. Even if the contract is not registered, the person in possession cannot be evicted by the transferor who seeks to avoid the contract.

The doctrine comes from English equity — Walsh v. Lonsdale (1882) — and was codified in Indian law through Section 53A. Before the Registration and Other Related Laws (Amendment) Act 2001, Section 53A applied to oral agreements as well. After the 2001 amendment, Section 53A applies only to a contract in writing — an oral agreement for transfer of immovable property can no longer attract Part Performance protection.

Section 53A — Five Conditions After the 2001 Amendment:     1. There must be a CONTRACT IN WRITING for transfer of immovable property      for consideration — oral agreements are excluded after 2001 amendment.     2. The contract must be one that is NOT REGISTERED but is otherwise capable      of being specifically enforced (i.e., it satisfies Section 10 SRA conditions).     3. The transferee must have TAKEN POSSESSION or continued in possession of      the property in part performance of the contract.     4. The transferee must have PERFORMED or be WILLING TO PERFORM their part      of the contract — paid the price or part of it, or done something else      in furtherance of the contract.     5. The transferor or any person claiming through the transferor shall not be      entitled to ENFORCE AGAINST THE TRANSFEREE any right in respect of the      property — i.e., Section 53A is a DEFENCE, not a sword.     Key exam point: Section 53A is only a defence — the person in possession can   RESIST eviction; they cannot SUE to compel the transfer. It protects possession,   not confers ownership. Use Section 53A to defend; use Specific Relief Act to sue.

Section 41 TPA — Transfer by Ostensible Owner

Section 41 protects a transferee who purchases property in good faith from a person who is the ostensible owner — that is, the apparent owner — with the consent, express or implied, of the real owner. Where a person is the ostensible owner of property with the consent of the real owner, a transfer by the ostensible owner for consideration to any person who takes the property in good faith and takes reasonable care to ascertain that the transferor has power to make the transfer shall not be voidable at the option of the real owner.

The doctrine is an application of the principle of estoppel — the real owner who allowed someone to appear as owner cannot later deny that appearance to defeat a bona fide purchaser who relied on it. The conditions are: the transferor must be an ostensible owner; the real owner must have consented (expressly or by conduct) to that ostensible ownership; the transferee must have taken in good faith and for consideration; and the transferee must have taken reasonable care to ascertain that the transferor had power to transfer.

Section 43 TPA — Transfer by Unauthorised Person Who Subsequently Acquires Interest (Feeding the Grant)

Section 43 deals with the situation where a person who does not own property but fraudulently or erroneously represents that they own it and transfers it — and subsequently actually acquires that property. In that case, at the option of the transferee, the transfer operates on the interest acquired by the transferor.

Example: A does not own Plot X but tells B that A owns it and sells it to B for Rs. 10 lakhs. B takes in good faith. Later, A actually inherits Plot X or purchases it. At B’s option, A’s subsequent acquisition “feeds” the earlier grant — the transfer to B becomes valid at that point. This doctrine is sometimes called “feeding the estoppel” or “feeding the grant.”

The conditions: the representation must be fraudulent or erroneous; the transferee must take in good faith; the transfer must be for consideration; and the transferor must subsequently actually acquire the interest they originally represented themselves as having.

Six Types of Mortgage Under Section 58 TPA

Mortgage is the transfer of an interest in specific immovable property as security for payment of money advanced or to be advanced by way of loan, or for an existing or future debt, or the performance of an engagement that may give rise to a pecuniary liability. The person who mortgages is the mortgagor; the person in whose favour the mortgage is made is the mortgagee.

Section 58 of the TPA recognises six types of mortgage. Knowing which type involves possession, which requires registration, which gives the mortgagee the right to foreclosure, and which gives the right to sale — is directly tested in both Prelims MCQs and Mains short notes.

Type of Mortgage	How It Works	Possession	Registration	Remedy
Simple Mortgage Section 58(b)	Mortgagor does not deliver possession. Mortgagor binds himself personally to pay the mortgage money. If default, mortgagee can sue for sale of property through court.	No possession — mortgagor keeps possession	Compulsory if mortgage money is Rs.100 or more (Section 59)	Sale through court order
Mortgage by Conditional Sale Section 58(c)	Mortgagor ostensibly sells property to mortgagee on the condition that on payment of mortgage money by a certain date the sale becomes void; OR on failure to pay the sale becomes absolute.	No possession as rule — depends on terms	Compulsory — must be by registered deed	Foreclosure — mortgagee applies for decree making sale absolute
Usufructuary Mortgage Section 58(d)	Mortgagor delivers possession to mortgagee and authorises mortgagee to retain possession and receive rents and profits — and to appropriate these in payment of interest or mortgage money.	Mortgagee gets possession	No registration required if possession is delivered	No foreclosure, no personal decree — mortgagee appropriates income; mortgage ends when debt is satisfied
English Mortgage Section 58(e)	Mortgagor binds himself personally to repay on a specific date; transfers property absolutely to mortgagee. If mortgage money is paid on specified date, mortgagee retransfers the property.	Mortgagee gets possession — absolute transfer with condition of retransfer	Compulsory	Sale without court intervention (in certain cases) — mortgagee can sell without court order
Mortgage by Deposit of Title Deeds (Equitable Mortgage) Section 58(f)	In certain towns (notified by State Government), a person creates a mortgage by depositing title documents with the lender with intent to create security.	No possession — title deeds are deposited but not property itself	No registration required — deposit of deeds is sufficient	Sale through court
Anomalous Mortgage Section 58(g)	Any mortgage that does not fit the five types above. Governed by the terms of the deed between the parties.	Depends on terms of the deed	Depends on amount and terms	Depends on terms

Six Mortgage Types — Prelims Memory Aid:     Simple: Personal bond + court sale. No possession.   Conditional Sale: Ostensible sale, conditional. Foreclosure remedy.   Usufructuary: Mortgagee takes possession + income. No foreclosure or decree.   English: Absolute transfer + personal bond. Sale without court (certain cases).   Equitable (Title Deed Deposit): Title deeds deposited. No registration needed.   Anomalous: Everything else. Terms govern.     Registration required: Simple, Conditional Sale, English (always).   Registration NOT required: Usufructuary (if possession delivered), Equitable.     Possession given to mortgagee: Usufructuary and English.   No possession to mortgagee: Simple, Conditional Sale, Equitable (title deeds only).

Lease Under Section 105 TPA — Definition and Essential Conditions

A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service, or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is the lessee, the price is called the premium (if paid as lump sum) or the rent (if paid periodically), and the transfer is called a lease. The key elements: there must be a transfer of a right to enjoy property (not full ownership); the transfer is for a defined period or in perpetuity; there must be consideration (rent or premium); and the lessee must accept the transfer.

Provision	What It Covers
Section 105	Definition of lease — transfer of right to enjoy property for a time, in exchange for rent or premium
Section 106	Duration when no period fixed — lease of immovable property for agricultural or manufacturing purposes is month to month (15 days notice); lease for other purposes is year to year (6 months notice to determine)
Section 107	Leases how made — lease of immovable property from year to year, or exceeding one year, must be by a registered instrument; other leases may be oral
Section 108	Rights and liabilities of lessor and lessee — detailed statutory list; tested as short note in Mains
Section 111	Determination of lease — lease can end by effluxion of time, happening of event, notice, forfeiture, or agreement
Section 116	Effect of holding over — when lessee continues in possession with lessor’s assent after expiry of lease, lease is renewed year to year or month to month depending on original term
Section 117	Exemptions — leases for agricultural purposes in certain states are exempt from provisions

Lease vs Licence — The Distinction That Decides Everything

The difference between a lease and a licence determines whether the occupant of property has a legal right to remain or can be ejected summarily. A lessee has an interest in property — a right in rem — enforceable against everyone. A licensee has only a personal permission — a right in personam — revocable by the grantor at any time.

Parameter	Lease	Licence
Definition	Transfer of a right to enjoy property — Section 105 TPA	Permission to do something on the licensor’s land that would otherwise be a trespass — Section 52 Indian Easements Act 1882
Nature of right	Right in rem — enforceable against the whole world	Right in personam — enforceable only against the licensor
Possession	Lessee gets exclusive possession	Licensee does not get exclusive possession — licensor can enter
Transfer	A lessee can sublet or assign unless prohibited	A licence is personal and cannot be transferred
Revocability	Cannot be terminated except in accordance with the terms of the lease or Section 111	Can be revoked by the licensor at any time (subject to reasonable notice) unless it is a licence coupled with a grant or for consideration with part performance
Registration	Lease for more than one year must be registered — Section 107 TPA	Licence need not be registered
On death	Lease survives — heirs of lessee can enforce it	Licence generally terminates on death of licensor or licensee
Remedy if disturbed	Suit for possession under TPA, eviction suits governed by Rent Control Acts	Action for damages for breach of contract only; no right to recover possession

Associated Hotels of India Ltd. v. R.N. Kapoor (AIR 1959 SC 1262):     The Supreme Court laid down the test for distinguishing lease from licence:   “To ascertain whether a document creates a licence or lease, the substance   of the document must be preferred to its form. The real test is whether   the document creates an interest in the property or only permits another   to make use of it.”     Exclusive possession is the most important indicator:   → Exclusive possession = Lease   → No exclusive possession, licensor can enter = Licence     Exam tip: Calling a document a “licence” does not make it one. Courts look   at the substance — if exclusive possession is given, it is a lease regardless   of what the parties call it.

Actionable Claim — Section 3 and Section 130 TPA

An actionable claim is a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession of the claimant, which the civil courts recognise as affording ground for relief, whether such debt or beneficial interest be existent, accruing, conditional, or contingent.

In simpler terms: an actionable claim is an unsecured debt or a beneficial interest in movable property that a court would recognise. Examples: a book debt (money owed under a commercial transaction), a claim for arrears of rent, a beneficial interest under a trust in movable property.

Under Section 130 TPA, an actionable claim can be transferred by the holder — the transfer must be in writing, signed by the transferor, and notice must be given to the debtor. Once notice is given, the debtor must pay the transferee. The transfer takes effect from the date of execution of the instrument — not from the date of notice.

What Is NOT an Actionable Claim — Important Negative List:     → A debt secured by mortgage of immovable property — NOT an actionable claim.   → A debt secured by pledge or hypothecation of movable property — NOT actionable.   → A right to sue for damages in tort (Section 6(e) bars transfer of mere right     to sue) — NOT an actionable claim for TPA purposes.   → Insurance policies (life and fire) — NOT actionable claims (separate rules     under Insurance Acts apply).     Exam trap: Section 6(e) says a “mere right to sue” cannot be transferred.   But actionable claims CAN be transferred under Section 130. The distinction:   an actionable claim is a recognised debt; a “mere right to sue” is a cause   of action in tort or breach of contract not yet reduced to a debt.

Exchange and Gift — Sections 118 and 122 TPA

Exchange — Section 118

When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing nor both things being money only, the transaction is called an exchange. An exchange need not be between properties of equal value. Money can be included as part of the exchange — provided the primary element is the mutual transfer of property. If one of the items is entirely money, it becomes a sale, not an exchange.

The most frequently tested point in Prelims: a partition of property between co-owners involves each giving up their share in some property in exchange for exclusive ownership of another portion. Under Section 118, a partition is an exchange. Therefore, the provisions of Chapter IV of the TPA (relating to exchanges) apply to partition.

Gift — Section 122

A gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Key conditions: the property must already exist at the time of the gift (a gift of future property is void under Section 124); there must be no consideration; the gift must be accepted during the lifetime of the donor and while the donor is still capable of giving.

Section	What It Covers	Key Exam Point
Section 122	Definition of gift — voluntary transfer, no consideration, accepted by donee	Gift of future property is VOID — Section 124. Gift must be of existing property only.
Section 123	How gifts of immovable property are made — must be by registered instrument signed by donor and attested by 2 witnesses	Oral gifts of immovable property are INVALID. Registration is mandatory under Section 123 for immovable property.
Section 126	Onerous gifts — gift with conditions attached. Donee must either accept ALL conditions or reject the gift entirely.	If a gift is made subject to a condition (e.g., pay the donor’s debts), the donee cannot accept the benefit and reject the burden.
Section 127	Onerous gifts by one instrument — if a single instrument gifts multiple properties with different burdens, donee cannot take beneficial gifts and reject onerous ones unless they are separable.	One instrument covering multiple properties — each must be taken or rejected as a unit if they are inseparable.
Section 128	Universal donee — person taking the entire property of the donor is personally liable for all debts of the donor at the time of gift, up to the value of the property received.	A gift of all property = universal donee = personal liability for donor’s debts.

Leading Supreme Court Cases on TPA — Exam-Ready Reference

Case	Section	Key Holding	Exam Angle
Associated Hotels of India Ltd. v. R.N. Kapoor AIR 1959 SC 1262	Section 105 — Lease vs Licence	The test for distinguishing lease from licence is exclusive possession. Substance prevails over form — calling a document a licence does not make it one.	Most cited SC case on lease vs licence distinction. Quote the exclusive possession test.
Bai Dosabai v. Mathurdas Govinddas AIR 1980 SC 1334	Section 52 — Lis Pendens	Lis pendens under Section 52 operates from the date of institution of the suit — not from when the transferee had actual knowledge of the suit. Notice is irrelevant.	Confirms that Section 52 binds even bona fide purchasers without notice.
Gouri Dutt Maharaj v. Sheikh Sukur Mohammed AIR 1948 PC 147	Section 53A — Part Performance	Section 53A is available only as a defence — the person in possession can resist eviction but cannot use Section 53A to initiate a suit for transfer of title.	Section 53A is a SHIELD, not a SWORD. This distinction is tested every year.
Vasantiben Prahladbhai Thakar v. Somnath Muljibhai Thakar (2009) 10 SCC 1	Section 53A — 2001 Amendment	After the Registration and Other Related Laws (Amendment) Act 2001, Section 53A applies only to written contracts. Oral agreements no longer attract Part Performance protection.	2001 amendment changed Section 53A significantly — must mention this in any Mains answer on Part Performance.
Jumma Masjid Mercara v. Kodimaniandra Deviah AIR 1962 SC 847	Section 43 — Feeding the Grant	Section 43 applies where the transferor makes a fraudulent or erroneous representation of ownership and subsequently acquires the interest. At the transferee’s option, the subsequent acquisition feeds the earlier grant.	Classic feeding the grant scenario — A sells what A does not own, then acquires it. Transferee can enforce against A.
Rajni Tandon v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782	Section 58 — Mortgage by Deposit of Title Deeds	Mortgage by deposit of title deeds (equitable mortgage) does not require registration to be valid. The deposit of documents itself creates the security.	Equitable mortgage = no registration needed. A recurring Prelims MCQ.
Bibi Zubaida Khatoon v. Nabi Hassan Saheb AIR 1965 SC 1bibi	Section 6(a) — Spes Successionis	The chance of an heir apparent succeeding to property is a spes successionis — it cannot be transferred. A person cannot sell what they merely hope to inherit.	Classic Section 6(a) case — expectancy of inheritance is not transferable.

TPA Mains — How to Approach Problem Questions

TPA problem questions in Mains are almost always about: (1) which type of mortgage applies and what remedy follows; (2) whether a transfer is valid under Section 41, 43, or 53A; (3) whether lis pendens under Section 52 affects a transfer; or (4) whether something is a lease or a licence. The structure below applies to all four categories.

Question Type	Step 1	Step 2	Step 3	Case to Cite
Mortgage type and remedy	Identify the type from the definition in Section 58 — is there possession? Is it an absolute transfer with conditions? Are title deeds deposited?	Check registration requirement — Section 59 says all mortgages of Rs.100 or more must be registered EXCEPT usufructuary mortgage where possession is delivered and equitable mortgage.	State the remedy: simple = court sale; conditional sale = foreclosure; usufructuary = appropriation of rents; English = sale without court in certain cases.	Rajni Tandon (equitable mortgage, no registration); cite Section 58 sub-section directly.
Lis pendens	Is there a pending suit where immovable property is directly in question? Is the person transferring a party to that suit?	Has the property been transferred during pendency? Notice of the suit to the transferee is IRRELEVANT.	The transfer binds the transferee — they take subject to the decree. State that even a bona fide purchaser is bound.	Bai Dosabai v. Mathurdas — lis pendens operates from date of institution, not knowledge.
Part Performance	Is there a WRITTEN contract for immovable property? (After 2001 amendment — oral contracts excluded.)	Has the transferee taken possession or continued in possession? Are they willing to perform?	Section 53A gives a defence — transferee can resist eviction. They cannot sue for transfer.	Gouri Dutt Maharaj — Section 53A is shield not sword. Vasantiben Thakar — 2001 amendment.
Lease or Licence	Does the agreement give EXCLUSIVE POSSESSION? Who can enter the property?	Substance over form — what does the document actually do, not what it calls itself?	Exclusive possession = lease. No exclusive possession, licensor can enter = licence.	Associated Hotels — exclusive possession is the test; substance over form.

Frequently Asked Questions — Transfer of Property Act 1882

What is the Transfer of Property Act 1882?

The Transfer of Property Act 1882 (Act No. 4 of 1882) is the central statute governing transfer of immovable property in India by act of parties. It came into force on 1 July 1882. The Act defines “transfer of property” in Section 5 as an act by which a living person conveys property, in present or in future, to one or more other living persons. It governs sale, mortgage, lease, exchange, gift, and transfer of actionable claims. The Act does not apply to transfers by operation of law — such as court decrees, intestate succession, or vesting through insolvency — which are governed by separate laws.

What property cannot be transferred under Section 6 TPA?

Section 6 of the Transfer of Property Act lists property and interests that cannot be transferred: spes successionis (the chance of an heir apparent succeeding); right of re-entry; an easement apart from the dominant heritage; restricted interests personal to the owner; right to future maintenance; a mere right to sue; a public office or prospective salary; stipends and political pensions; and interests opposed to the nature of the interest, contrary to law, or involving legally disqualified persons. The most tested in Prelims are spes successionis (Section 6(a)) and mere right to sue (Section 6(e)).

What are the six types of mortgage under Section 58 TPA?

Section 58 of the TPA recognises six types of mortgage: (1) Simple mortgage — mortgagor does not deliver possession, personal bond, remedy is court sale; (2) Mortgage by conditional sale — ostensible sale with condition of reconveyance on payment, remedy is foreclosure; (3) Usufructuary mortgage — mortgagee takes possession and appropriates rents and income, no foreclosure; (4) English mortgage — absolute transfer with personal bond, sale without court order in certain cases; (5) Mortgage by deposit of title deeds (equitable mortgage) — available in notified towns, no registration required; (6) Anomalous mortgage — any other form, governed by the terms of the deed.

What is the difference between lease and licence under TPA?

A lease under Section 105 TPA transfers a right to enjoy property — giving the lessee exclusive possession for a term in exchange for rent or premium. A licence under Section 52 of the Indian Easements Act grants only a personal permission to use another’s property, without exclusive possession. The key test, laid down by the Supreme Court in Associated Hotels of India Ltd. v. R.N. Kapoor (AIR 1959 SC 1262), is exclusive possession — if the occupant has exclusive possession, the agreement is a lease regardless of what the parties call it. A lease creates a right in rem; a licence creates only a right in personam.

What is Section 52 lis pendens under TPA?

Section 52 of the TPA codifies the doctrine of lis pendens — pending litigation. It provides that during the pendency of a suit in which the right to immovable property is directly and specifically in question, any transfer of that property by a party to the suit does not bind the other parties or affect rights under any decree passed in the suit. The transferee takes the property subject to the result of the litigation — even if the transferee had no knowledge of the suit. The Supreme Court in Bai Dosabai v. Mathurdas Govinddas (AIR 1980 SC 1334) confirmed that lis pendens operates from the date of institution of the suit, and notice is irrelevant.

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All the best — from Jyoti Judiciary Coaching

Written by Advocate Jyoti Saxena — LLB, LLM, CS, Bar Council of Rajasthan, practising at Jaipur Family Court, Jaipur District Court, and the Rajasthan High Court. Property disputes involving TPA provisions — sale, mortgage, lease, and part performance — are part of daily practice in civil courts across Rajasthan. All statutory references are to the Transfer of Property Act 1882 as amended. Supreme Court case citations verified from AIR and SCC Online. Contact: +91 99290 96546 | jyotijudiciary.com

All TPA references based on Transfer of Property Act 1882 as amended by Registration and Other Related Laws (Amendment) Act 2001. Case citations verified from AIR, SCC Online, and main.sci.gov.in.