(a) Difference between Lease and Licence:

• Lease (Section 105, Transfer of Property Act, 1882): A lease is a transfer of a right to enjoy immovable property for a certain period, 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. It creates an interest in the property itself.

  • Interest: Creates an interest in the immovable property, giving the lessee a right in rem.
  • Possession: Grants exclusive possession of the property to the lessee.
  • Transferability: Generally assignable and heritable, unless restricted by the lease agreement.
  • Revocability: Irrevocable during its term, except under specific conditions like breach of contract.
  • Governing Law: Governed by the Transfer of Property Act, 1882.
  • Registration: Leases for a term exceeding one year, or reserving a yearly rent, must be registered.

• Licence (Section 52, Indian Easements Act, 1882): A licence is a permission granted by one person to another, or to a definite number of other persons, to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property. It merely makes an act lawful which would otherwise be unlawful.

  • Interest: Creates no interest in the property; it is a personal right (right in personam).
  • Possession: Does not grant exclusive possession; the licensor retains legal possession.
  • Transferability: Generally not assignable or heritable, as it is a personal privilege.
  • Revocability: Generally revocable by the grantor at will, though there are exceptions (e.g., licence coupled with a grant, or where the licensee has acted upon the licence to his detriment).
  • Governing Law: Governed by the Indian Easements Act, 1882.
  • Registration: Does not require registration.

(b) Attestation, Notice and Subrogation:

• Attestation (Section 3, Transfer of Property Act, 1882): To attest means to bear witness to a fact. In the context of legal documents, attestation refers to the act of witnessing the execution of a document by the executant. For a document to be attested, it must be signed by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person. Each witness must sign the instrument in the presence of the executant. The purpose of attestation is to ensure the authenticity of the document and to prevent fraud, particularly for important transactions like mortgages and gifts of immovable property.

• Notice (Section 3, Transfer of Property Act, 1882): Notice refers to the knowledge of a fact. In property law, it is crucial for determining the rights and liabilities of parties, especially in cases of competing claims over property. Notice can be:

  • Actual Notice: When a person actually knows a fact. This is direct and express knowledge.
  • Constructive Notice: When a person ought to have known a fact, even if they did not have actual knowledge. The law presumes knowledge in certain circumstances. Examples include:
    • Registration: Registration of a document relating to immovable property is deemed constructive notice to all subsequent transferees.
    • Possession: A person in actual possession of immovable property gives constructive notice of their rights to anyone dealing with the property.
    • Inquiry: If a person has knowledge of a fact that would put a reasonable person on inquiry, and they fail to make such inquiry, they are deemed to have constructive notice of what they would have discovered. Notice plays a vital role in protecting bona fide purchasers for value without notice.

• Subrogation (Section 92, Transfer of Property Act, 1882): Subrogation means the substitution of one person in the place of another with regard to a lawful claim, demand, or right, so that the person substituted succeeds to the rights of the other in relation to the debt or claim. In the context of mortgages, it allows a person who pays off a prior mortgage debt to step into the shoes of the mortgagee whose debt has been discharged. This enables the subrogated party to enforce the rights and remedies of the original mortgagee against the mortgagor. Subrogation can be:

  • Legal Subrogation: Arises by operation of law, for instance, when a co-mortgagor or a subsequent mortgagee redeems a prior mortgage.
  • Conventional Subrogation: Arises from an agreement between the parties, where a third party advances money to redeem a mortgage with the understanding that they will be subrogated to the rights of the mortgagee. The principle ensures that a party who clears an encumbrance on property, often to protect their own interest, does not lose out and can recover the amount paid by enforcing the original security.

(c) Principle of Lis-Pendens (Section 52, Transfer of Property Act, 1882):

The doctrine of 'lis pendens' is a fundamental principle of property law, derived from the Latin maxim 'ut lite pendente nihil innovetur', meaning 'during litigation, nothing new should be introduced'. Section 52 of the Transfer of Property Act, 1882, embodies this principle. It states that during the pendency in any court of any suit or proceeding which is not collusive and in which a right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

Key elements of the doctrine:

1. Pendency of a Suit or Proceeding: There must be an ongoing legal action in a court of competent jurisdiction.
2. Immovable Property in Question: The suit must directly and specifically involve a right to immovable property.
3. Non-Collusive Suit: The litigation must be genuine and not initiated through collusion between the parties to defraud a third party.
4. Transfer by a Party to the Suit: The transfer or dealing with the property must be made by one of the parties to the suit.
5. Effect on Rights: The transfer must be such that it would affect the rights of any other party to the suit under the decree or order that may be passed.

Purpose: The primary objective of the doctrine is to prevent the parties to a litigation from alienating the subject matter of the suit during its pendency, thereby ensuring that the court's decree is not rendered nugatory or ineffective. It aims to maintain the status quo of the property until the final adjudication of rights. The transferee, even if acting in good faith and for consideration, takes the property subject to the outcome of the pending litigation. The transfer is not void, but voidable or subservient to the rights declared by the court's decree.