Fraudulent Transfer - Transfer of Property Act 1882

Fraudulent Transfer

Sections 53(1) and (2) of the Transfer of Property Act 1882, defines Fraudulent transfer as:
(1)Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.

(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

In general terms, fraudulent transfer means transfer of assets with an intent to defraud the creditors. 
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Condition Precedent - Transfer of Property Act 1882

Condition Precedent

Condition precedent is defined in section 26 of the Transfer of Property Act 1882. 
The term precedent means prior. So, the condition that is are to be fulfilled prior to the transfer of any property is called a condition precedent. This is not mandatory to follow all the condition precedents. A substantial compliance of the conditions are good enough for the transfer to happen.
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Easement by Prescription - The Indian Easement Act 1882

Easement by Prescription

As per Section 15 of The Indian Easement Act 1882, to acquire a prescriptive right of easement to access and use light or air in any building or support from another persons land, it must have been peacefully enjoyed as an easement without interruption for twenty years. A right of way or any other easement it must have been peacefully and openly enjoyed as a right without interruption for twenty years.

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Exchange - Transfer of Property Act 1882

Exchange

Definition of Exchange as per Section 118 of Transfer of Property Act 1882  — When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or 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 manner provided for the transfer of such property by sale.
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Actionable Claim - Transfer of Property Act 1882

Actionable Claim

According to Section 4 of the Transfer of Property Act 1882, “actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, occurring, conditional or contingent.
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Dominant and Servient heritages - The Indian Easement Act 1882

Dominant and servient heritages

Section 4 of the Indian Easement Act 1882 defines the terms Dominant and Servient heritages.

Dominant heritages —The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof the dominant owner.

Servient heritages — The land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. 
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Ostensible Owner - Transfer of Property Act 1882

Ostensible Owner

Section 41 of the Transfer of Property Act 1882 defines as - Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property.

Ostensible Owner as the one who has possession of the property and also may have his name on the records, but is not real owner of the property.

Such situation may arise when property is acquired in others name, the the property is Benami. The Benamidar in whose name the property is purchased is the Ostensible Owner. This may also arise due to willful neglect of the real owner.

Essential requirements for a valid transfer by an Ostensible Owner
1. The transferor must be an Ostensible Owner
2. There must be express or implied consent of the real owner
3. There must be a consideration for the transfer. The ostensible owner can not transfer the property without any consideration to the transferee.
4. And most importantly, the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. 

If all of these requirements are fulfilled, the transfer by the ostensible owner is valid and the rights of the transferee is protected.
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Notice - Transfer of Property Act 1882

Notice

Notice is defined in Section 3 of the Transfer of property Act 1882 as - 
"A person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

So, in legal terms notice is referred to have the knowledge of the fact.
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Charge and Mortgage - Transfer of Property Act, 1882

Charge

As per Section 100 of the Transfer of Property Act 1882, charge is - Where immoveable 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; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

Mortgage 

As per Section 58(a) of Transfer of Property Act 1882, —  A mortgage is the transfer of an interest in specific immoveable 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.

Difference between Charge and Mortgage



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Onerous Gifts - Transfer of Property Act 1882

Onerous Gift

Section 127 of the Transfer of Property Act defines Onerous Gift as follows:
Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
 
So, though there would be no consideration for the gift, but there may be considerations for the other things bundled with it, and the Donee has to accept it in total. The gift can not be received partially
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CCSU BA LLB Previous Years Question Papers

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Difference between Criminal Conspiracy and Abatement : IPC

Q. Distinguish between criminal conspiracy and Abetment. [2018 - 10 marks]

Criminal Conspiracy
According to Section 120A of Indian Penal Code (IPC) Criminal Conspiracy is an agreement between two or more persons to do an illegal act or a legal act by illegal means. It is clear from the definition that the following two types of agreements can be termed as criminal conspiracy:
(i) agreement to do an illegal act or
(ii) agreement to do an act which is not illegal by illegal means. This means, the act to be done is legal but the way it is to be performed is illegal.

Difference between Criminal Conspiracy and Abatement
1. Section 120 A and Section 120 B deal with criminal conspiracy, Sections 107 to 120 deal with abatement.

2. Conspiracy is an agreement between two or more persons for doing an illegal act or doing a legal act by illegal means. Abetment, on the other hand, is a process by which one or more person engage others for doing and illegal act.

3. One person is sufficient to commit an abatement. For conspiracy  at least two persons are required.

4. Abatement is a wider term which also include conspiracy.

5. Conspiracy is a substantive offence, abatement is not.
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Culpable Homicide and Murder : A Comparative Study of Section 299 and 300 of IPC

Q. Distinguish between Culpable Homicide and Murder. [2018 - 10 marks]
Q. State the circumstances under which the culpable homicide does not amount to murder. [2019 - 20 marks]

Culpable Homicide
Section 299 of IPC defines Culpable Homicide along with illustrations. According to the Section 299 of IPC, culpable homicide is committed when act is done with the intent of causing death or with the knowledge that the act will cause death, and the death occurs. For example, A knows that Z is hiding in a bush, asks B to shoot at the bush. B is not aware of the fact that Z is hiding in the bush, shoots at the bush and as a result Z dies. Here B is innocent but A guilty of culpable homicide.

Essential Elements of Culpable Homicide
1. There must be a death of a person
2. The death must be caused by another person
3. The death was caused with an intention to do so 
     or  the act was done knowingly that it will cause the death

Murder
Section 300 of IPC defines Murder as culpable homicide with certain exceptions. The section makes it clear that all culpable homicides amount to murder except those which are excepted in this section.

Essential Elements of Murder
All culpable homicides, except the excepted circumstances, are murder, if
1. the act was done with an intention to  cause the death or
2. the act was done knowing that it will cause death or
3. the bodily injury was done knowing that such injury will cause death in normal course of time or
4.  If the person conducting the act is aware that it is so risky that it must, in all likelihood, result in death

Culpable Homicide not amounting to Murder
Following are the circumstance under which a culpable homicide do not amount to murder
1. When the death was caused under grave and sudden provocation. 
    Case reference: KM Nanavati Vs. State of Maharastra

2. When the death was caused for private defense.
    Case reference: Nathan Vs. State of Madras

3. The death is caused by a public servant in the discharge of his lawful and designated duty.
    Case reference: Dakhi Singh Vs. State (1955)

4. Culpable Homicide does not amount to murder if it was done at the heat of the moment during a sudden conflict. Neither there was intention not there was planning to do so.
     Case reference: Manke Ram Vs. State of Haryana (2003)

5. Culpable homicide does not amount to murder if the person died was 18 years or above and knowing the risk consented for the act.
    Case reference: Narendra Vs. State of Rajasthan (2014)

Difference between Culpable Homicide and Murder
1. Section 299 of IPC deals with Culpable Homicide and Section 300 deals with Murder.
2. Any act which was done intentionally or knowingly to cause death, that causes death of another person, is a culpable homicide. But all these acts do not amount to murder.
3. When a death was caused unintentionally under grave and sudden provocation, it is a culpable homicide and not murder.
4. When the death was caused for private defense, it is a culpable homicide and not murder.
5. The death is caused by a public servant in the discharge of his lawful and designated duty, it is a culpable homicide and not murder.
6. If it was done at the heat of the moment during a sudden conflict. Neither there was intention not there was planning to do so, it is a culpable homicide and not murder.
7. If the person died was 18 years or above and knowing the risk consented for the act, it is a culpable homicide and not murder.
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Affray: Meaning, Definition, Elements and Punishments - Section 159 of IPC

Q.  Discuss the elements of Affray. [2018 - 4 marks]

Meaning and Definition of Affray

Affray is committed when two or more persons fight at a public place disturbing peace. Section 159 of IPC defines affray as "When to or more person, by fighting in a public place, disturb public peace, they are said to commit an affray."

Essential elements of Affray

1. There should be a fighting among two or more persons. Fight is the most necessary element of affray.
2. The fighting should occur in a public peace. If a few people are fighting inside their home, it would not amount to affray.
3. The fighting should disturb public peace. This means, if few people are fighting in a public place but nothing was disturbed, this will not be termed as affray.

Punishment for Affray

 Punishment for Affray is given in Section 160 of the IPC. The punishment is imprisonment upto one month or fine up to rupees one hundred or both. 


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Attempt to Murder : IPC Section 307

Q. What do you understand by attempt to murder? [2018 - 4 marks]

Attempt to Murder
Section 307 of the IPC defines attempt to murder as an act committed with an intention to commit murder. For example, A shoots at B with an intention to kill him. This will be considered as an attempt to murder.

Punishment for attempt to murder 
1. If no one is hurt in the attempt to murder, the punishment is up to ten years of imprisonment and fine. 
2. If someone was hurt due to the attempt to murder, the punishment would extend to life imprisonment.
3. If the attempt to murder was committed by a person serving life term imprisonment, he would be awarded with death upon attempt to murder.


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Unlawful Assembly: Definition, Essential Elements and Statutory Provisions in IPC

Q. Discuss the essential elements of unlawful Assembly. [2018 - 4 marks]

Definition of Unlawful Assembly
Section 141 of the Indian Panel Code defines Unlawful Assembly as an assembly of 5 or more persons, armed with deadly weapons or any instruments, with a common intention, using criminal force, mischief or criminal trespass, obstructing execution of official or legal duty. 

Essential Elements of Unlawful Assembly
1. An assembly of 5 or more persons.
2. Using deadly weapons or any other weapon.
3. With a common objective
4. Using criminal force, mischief or criminal trespass, obstructing execution of official or legal duty. 

Sections in IPC for Unlawful Assembly
Section 141: Definition of Unlawful Assembly
Section 142: Being a member of unlawful assembly
Section 143: Punishments - Six months of imprisonment or fine or both
Section 144: Punishment of unlawful assembly with deadly weapon. Two years of imprisonment or fine or both.
Section 145: Continuing with unlawful assembly knowing that it is recommended to disperse - 2 years of imprisonment or fine or both.
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Rioting: Definition, Essential elements and Statutory Provisions under IPC

Q. What is rioting? [2018 - 4 marks]

Definition of Rioting
Section 146 of the Indian Panel Code states Rioting as "Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."

Essentials of Rioting
As per Section 146 of the IPC it is clear that the following are the essentials of rioting:
1. There should be an unlawful assembly.
2. Force or violence used by all or any member of the unlawful assembly.
3. The force or violence should be used to achieve a common object.

Statutory Provisions
Section 146 of the IPC provides definition and makes it an offence.
Section 147 of the IPC provides punishment for rioting. The punishment could be up to 2 years or fine of both.
Section 148 of the IPC provides punishment for rioting armed with deadly weapons. If the rioters uses deadly weapons, the punishment will increase to 3 years or fine or both.
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Bigamy : Definition and statutory provisions

Q. Define Bigamy. [2018 - 4 marks]


Bigamy: Definition
Bigamy is the act of marring with another person by a married person. This means, a person who is already married and the marriage is valid, if he or she enters into another marriage, this is called bigamy.

Essentials of Bigamy
1. The person marrying second time, whether husband or wife should be already married. And the marriage should be valid at the time of second marriage.
2. The second marriage has to be a valid marriage.
3. Both the spouses should be living.

Statutory Provisions:
As per Section 494 of Indian Penal Code, Bigamy is a non-cognizable, bailable offence. The punishment can extend up to 7 years of imprisonment with fine.

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