Delhi Judicial Services Exam Property, Transfer & Tort Law Syllabus

List the rights and liabilities of buyer and seller of immovable property under Section 55 of the TPA.

Seller's duties: disclose material defects, produce title documents, answer questions on title, execute conveyance, take care of property/title deeds till delivery, pay public charges/rent till sale, deliver possession. Seller's right: rents/profits till ownership passes; charge on property for unpaid price (seller's lien). Buyer's duties: disclose facts increasing value, pay price, bear loss after ownership passes, pay outgoings after that. Buyer's rights: benefit of any improvement, charge on property for prepaid price if delivery not given (buyer's lien).

What is a "mortgage" under Section 58(a) of the TPA, 1882?

A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is the mortgagor, the transferee the mortgagee, the principal money and interest secured the mortgage-money, and the instrument the mortgage-deed.

Name the six kinds of mortgages recognised under Section 58 of the TPA, 1882.

(1) Simple mortgage [58(b)], (2) Mortgage by conditional sale [58(c)], (3) Usufructuary mortgage [58(d)], (4) English mortgage [58(e)], (5) Mortgage by deposit of title-deeds / equitable mortgage [58(f)], (6) Anomalous mortgage [58(g)].

Describe a simple mortgage under Section 58(b) of the TPA.

In a simple mortgage, the mortgagor binds himself personally to pay the mortgage-money and agrees, expressly or impliedly, that in the event of his failure to pay, the mortgagee shall have a right to cause the mortgaged property to be sold (through court) and the proceeds applied towards payment. Possession is NOT delivered to the mortgagee. The remedy is a suit for sale, not foreclosure.

Describe a usufructuary mortgage under Section 58(d) of the TPA.

The mortgagor delivers (or binds himself to deliver) possession of the property to the mortgagee, authorising him to retain such possession until payment and to receive the rents and profits, appropriating them in lieu of interest, or towards principal, or both. There is no personal liability of the mortgagor and no time limit; mortgagee cannot sue for sale or foreclosure -- he stays in possession until paid off.

Describe an English mortgage under Section 58(e) of the TPA.

The mortgagor binds himself to repay the mortgage-money on a certain date and transfers the property absolutely to the mortgagee, subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed. The mortgagee's remedy is sale (and the mortgagee in possession has certain powers of sale).

What is a mortgage by deposit of title-deeds (equitable mortgage) under Section 58(f) of the TPA, and where does it apply?

It is created when a person in certain notified towns (Kolkata, Mumbai, Chennai and other towns notified by the State Government) delivers to a creditor or his agent documents of title to immovable property with intent to create a security thereon. No registration or written deed is necessary; the deposit of title deeds with intention to secure the debt itself constitutes the mortgage.

Distinguish a mortgage by conditional sale from a sale with a condition of re-purchase.

In a mortgage by conditional sale [58(c)], the ostensible sale becomes void on payment and the property re-vests in the mortgagor; the debtor-creditor relationship subsists, and the condition of re-purchase must be embodied in the SAME document. In a sale with condition of re-purchase, there is an out-and-out transfer of ownership with a separate option to re-buy; no debtor-creditor relation exists. The proviso to Section 58(c) requires the condition to be in the same document for it to be a mortgage.

What is the "right of redemption" and the doctrine that "once a mortgage always a mortgage" (Section 60 TPA)?

Section 60 gives the mortgagor, after the principal money has become due, the right on payment to require the mortgagee to deliver the mortgage deed, retransfer the property and deliver possession. The doctrine "once a mortgage always a mortgage and nothing but a mortgage" means any condition that clogs or fetters this equity of redemption (a clog on redemption) is void; the right of redemption is inseparable from a mortgage.

What is the "right of foreclosure" of a mortgagee under Section 67 of the TPA?

Foreclosure is the right of the mortgagee, on default by the mortgagor, to obtain a court decree absolutely debarring the mortgagor from his right to redeem the property. It is available in a mortgage by conditional sale and in an anomalous mortgage, but NOT in a simple or English mortgage (where the remedy is sale). It is the mirror image of the mortgagor's right of redemption.

What is marshalling of securities under Section 81 of the TPA?

Where the owner of two or more properties mortgages them to one person and then mortgages one or more of them to another, the subsequent mortgagee is (in the absence of a contract to the contrary) entitled to have the prior mortgage debt satisfied out of the property/properties not mortgaged to him, so far as possible without prejudicing the prior mortgagee or other persons with an interest. It prevents the subsequent mortgagee's security from being defeated.

What is subrogation under Section 92 of the TPA?

Subrogation means stepping into the shoes of the mortgagee. Any person (other than the mortgagor) who has an interest in or charge upon the property and redeems it, or any co-mortgagor, is subrogated to the rights of the redeemed mortgagee. There are two kinds: legal subrogation (by operation of law on redemption by an interested person) and conventional subrogation (by agreement, which must be in a registered instrument).

Define a "lease" of immovable property under Section 105 of the TPA, 1882.

A lease is a transfer of a right to enjoy immovable property 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. The transferor is the lessor, transferee the lessee, the price the premium, and the periodic payment the rent.

How is a lease of immovable property made under Section 107 of the TPA?

A lease from year to year, or for a term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a registered instrument is required, it must be executed by both lessor and lessee.

Distinguish a lease from a licence.

A lease transfers an interest in the property (a right in rem) and gives the lessee exclusive possession; it is generally transferable and heritable. A licence (Indian Easements Act, S.52) merely grants permission to do something on the property that would otherwise be unlawful, creates no interest in the land (a right in personam), is personal, non-transferable, and revocable. The test is whether exclusive possession/interest in land has been conferred.

How may a lease of immovable property be determined (terminated) under Section 111 of the TPA?

By: (a) efflux of time, (b) happening of a specified event, (c) termination of lessor's interest/power to lease, (d) merger, (e) express surrender, (f) implied surrender, (g) forfeiture (breach of express condition, denial of landlord's title, or insolvency where so provided), and (h) expiry of notice to quit. Determination by forfeiture requires notice in writing under Section 111(g)/106.

What notice period is required to terminate a lease under Section 106 of the TPA (as amended)?

In the absence of a contract/local law to the contrary: a lease of immovable property for agricultural or manufacturing purposes is deemed a lease from year to year, terminable by 6 months' notice; a lease for any other purpose is deemed a lease from month to month, terminable by 15 days' notice. The notice must be in writing, signed by or on behalf of the party giving it, and duly delivered.

Define "gift" under Section 122 of the TPA, 1882.

Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person (donor) to another (donee), and accepted by or on behalf of the donee. Acceptance must be made during the lifetime of the donor and while he is still capable of giving; if the donee dies before acceptance, the gift is void.

How is a gift of immovable and movable property effected under Section 123 of the TPA?

A gift of immovable property must be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. A gift of movable property may be made either by a registered instrument so signed and attested, or by delivery of the property.

What is the rule regarding revocation of gifts under Section 126 of the TPA?

A gift may be revoked: (1) by mutual agreement that it shall be suspended/revoked on the happening of a specified event not depending on the will of the donor; and (2) in any case where, if it were a contract, it might be rescinded (e.g., for fraud, undue influence, etc.). A gift cannot be revoked merely at the will of the donor, and a gift revocable wholly at the donor's pleasure is void. Bona fide transferees for value without notice are protected.

Define "exchange" under Section 118 of the TPA, 1882.

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. A transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale (Section 118).

What is a "charge" under Section 100 of the TPA, and how does it differ from a mortgage?

Where immovable property of one person is, by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property. Difference: a mortgage is a transfer of an interest in the specific property, whereas a charge creates only a right to payment out of the property (no transfer of interest); a charge generally cannot be enforced against a bona fide transferee for value without notice.

Define "actionable claim" under Section 3 of the TPA, 1882.

An actionable claim means a claim to any debt (other than a debt secured by mortgage of immovable property or by hypothecation/pledge of movable property), or to any beneficial interest in movable property not in the claimant's possession (actual or constructive), which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

How is an actionable claim transferred under Section 130 of the TPA?

The transfer of an actionable claim, whether with or without consideration, can be effected only by execution of an instrument in writing signed by the transferor or his agent. On such execution all the rights and remedies of the transferor vest in the transferee, who may sue or proceed in his own name without the transferor's consent. (Notice of transfer to the debtor is required to bind the debtor / for priority among transferees.)

Define "tort" and state its essential elements.

A tort is a civil wrong, independent of contract, for which the remedy is an action for unliquidated damages. Salmond's definition: a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of contract, breach of trust, or other merely equitable obligation. Essentials: (1) a wrongful act or omission, (2) a legal duty owed to the plaintiff, (3) breach causing legal damage (injuria), and (4) a legal remedy in the form of unliquidated damages.

Explain the maxims "injuria sine damno" and "damnum sine injuria".

Injuria sine damno = violation of a legal right without actual damage; it is actionable (e.g., Ashby v. White -- denial of voting right). Damnum sine injuria = actual loss/damage without violation of any legal right; it is NOT actionable (e.g., Gloucester Grammar School case; Mogul Steamship Co. v. McGregor). A legal right's infringement, not mere loss, founds a tort.

List the general defences available in an action for tort.

(1) Volenti non fit injuria (consent), (2) Plaintiff the wrongdoer (ex turpi causa), (3) Inevitable accident, (4) Act of God (vis major), (5) Private defence, (6) Mistake (generally not a defence), (7) Necessity, (8) Statutory authority. These can defeat or reduce liability even where a prima facie tort is made out.

Explain the defence of "volenti non fit injuria" and its limits.

It means that one who voluntarily consents to a risk cannot later complain of harm resulting from it; consent may be express or implied and must be free and to the specific risk known (scienti non fit injuria is not enough -- mere knowledge of risk is not consent). Limits: it does not apply to rescue cases (Haynes v. Harwood), to illegal acts, or where consent is obtained by fraud/coercion or is contrary to statute.

What is "vicarious liability" and what is the principal relationship in which it arises?

Vicarious liability is the liability of one person for the wrongful act of another, arising out of a special relationship between them. The chief relationship is master and servant: a master is liable for torts committed by his servant in the course of employment, based on the maxims respondeat superior (let the master answer) and qui facit per alium facit per se (he who acts through another acts himself).

State the test for an employer's vicarious liability for a servant's tort and the "course of employment" rule.

An employer is liable for a tort committed by his servant if it is done (a) in the course of employment, i.e., either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing an authorised act. The master is generally NOT liable where the servant goes on a "frolic of his own" outside the scope of employment. He can be liable even for an act expressly prohibited if the prohibition relates only to the mode of doing authorised work.

State the rule in Rylands v. Fletcher (strict liability) and its essentials.

A person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if it escapes and causes damage, he is prima facie answerable for all the natural consequences, even without negligence. Essentials: (1) dangerous thing, (2) escape from the defendant's land/control, (3) non-natural use of land. Exceptions: plaintiff's own fault, act of God, act of third party, consent of plaintiff, statutory authority.

State the rule of absolute liability laid down in M.C. Mehta v. Union of India and how it differs from strict liability.

An enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community; if harm results from the activity, the enterprise is absolutely liable to compensate, irrespective of negligence or escape. Unlike Rylands v. Fletcher, absolute liability admits NO exceptions (no act-of-God, third-party, escape, or non-natural-use defences) and damages are correlated to the magnitude and capacity of the enterprise (deterrent/exemplary).

Define negligence as a tort and state its three essential ingredients.

Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Three essentials: (1) the defendant owed a legal duty of care to the plaintiff, (2) breach of that duty (failure to meet the standard of a reasonable man), and (3) the breach caused legal damage to the plaintiff (causation and remoteness). The neighbour principle was laid down in Donoghue v. Stevenson.

Explain the maxim "res ipsa loquitur" in the law of negligence.

"The thing speaks for itself." Where the accident is of a kind that does not ordinarily happen without negligence, the thing causing harm was under the exclusive control of the defendant, and there is no explanation by the defendant, the very occurrence raises a presumption of negligence and shifts the burden onto the defendant to disprove negligence. (Origin: Byrne v. Boadle.)

What is "contributory negligence" and what is its effect?

Contributory negligence is the failure of the plaintiff to take reasonable care for his own safety which contributes to the harm he suffers. Under the modern apportionment rule (and the Indian approach), damages are reduced in proportion to the plaintiff's share of fault rather than the claim being wholly defeated. The "last opportunity rule" (Davies v. Mann) historically determined liability where one party had the last chance to avoid the accident.

Define "nuisance" and distinguish public nuisance from private nuisance.

Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. Private nuisance is interference with an individual's use/enjoyment of his land or a right connected with it (remedy: damages/injunction by the affected person). Public (common) nuisance is an act/omission that materially affects the reasonable comfort and convenience of the public or a class (a crime under S.268 IPC); a private person can sue only on proof of special/particular damage beyond that suffered by the public.

Define the tort of "trespass to land" and its essentials.

Trespass to land is the unjustifiable, direct and intentional (or negligent) interference with another person's possession of land -- by entering upon it, remaining there, or placing/projecting any object upon it -- without lawful justification. It is actionable per se (without proof of damage). The interference must be direct; consequential interference is nuisance, not trespass. Possession, not ownership, is protected.

Define "defamation" and distinguish libel from slander.

Defamation is the publication of a false statement which tends to lower a person in the estimation of right-thinking members of society, or which causes him to be shunned/avoided, or exposes him to hatred, contempt or ridicule. Libel is defamation in a permanent form (writing, print, picture) and is actionable per se (and also a crime). Slander is defamation in a transient/spoken form and is generally actionable only on proof of special damage, except in certain cases.

Name the cases (exceptions) in which slander is actionable per se (without proof of special damage).

(1) Imputation of a criminal offence punishable with imprisonment; (2) imputation of a contagious/infectious disease tending to exclude the person from society; (3) imputation of unchastity or adultery to a woman/girl; and (4) words calculated to disparage the person in his office, profession, calling, trade or business held at the time of publication.

State the essentials of defamation and the chief defences available.

Essentials: (1) the statement must be defamatory, (2) it must refer to / be "of and concerning" the plaintiff, and (3) it must be published to a third person. Defences: (1) Justification or truth (truth is a complete defence in civil law), (2) Fair and bona fide comment on a matter of public interest, and (3) Privilege -- absolute (e.g., parliamentary, judicial proceedings) or qualified (statements made in performance of a duty or to protect an interest, without malice).

Under the Consumer Protection Act, 2019, how is a "consumer" defined?

A consumer is any person who buys goods or hires/avails of services for a consideration (paid, promised, partly paid/promised, or under deferred payment), and includes any user of such goods or beneficiary of such services with the buyer's approval, but does NOT include a person who obtains goods for resale or for any commercial purpose. The definition expressly includes online/e-commerce and offline transactions.

What is the pecuniary jurisdiction of the District, State and National Consumer Commissions under the Consumer Protection Act, 2019 (post-2021 amendment)?

District Commission: complaints where the value of goods/services paid as consideration does not exceed Rs. 50 lakh. State Commission: exceeds Rs. 50 lakh but does not exceed Rs. 2 crore. National Commission: exceeds Rs. 2 crore. (Jurisdiction under the 2019 Act is based on the value of consideration paid, not the value of goods/compensation.)

What key new concepts and bodies were introduced by the Consumer Protection Act, 2019 compared to the 1986 Act?

Key additions: the Central Consumer Protection Authority (CCPA) to regulate matters of consumer rights, unfair trade practices and misleading advertisements; provisions on product liability (manufacturer, service provider and seller); mediation as an alternative dispute resolution mechanism; specific regulation of e-commerce and direct selling; rules against misleading advertisements and celebrity-endorser liability; and the right to file complaints electronically and from the place of the complainant's residence.

What is "product liability" under the Consumer Protection Act, 2019?

Product liability is the responsibility of a product manufacturer, product service provider or product seller to compensate for any harm caused to a consumer by a defective product or deficient service. A product liability action can be brought against the manufacturer (for manufacturing/design defect, deviation from specifications, non-conformance with express warranty, or inadequate instructions/warnings), the service provider (for faulty/imperfect/deficient service), or the seller (in specified circumstances).

Define "unfair trade practice" and "deficiency" under the Consumer Protection Act, 2019.

Unfair trade practice means a trade practice that, for promoting the sale, use or supply of goods or services, adopts any unfair method or deceptive practice -- e.g., false representation about quality/standard, false guarantees, misleading advertisements, hoarding, non-issuance of bills, or disclosure of personal information given in confidence. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by law or undertaken to be performed under a contract or otherwise (includes negligent act/omission and withholding of relevant information).